Volume 79 — United States Reports

Held: but Hubbard did not make any appeal, either to the assessor or to the Commissioner of Internal Revenue, according to the provisions of law in that, regard, which allowed him to do so, though it did not make his having done so a condition of his bringing suit. On the contrary, relying on his simple payment under protest he brought suit in the Circuit Court of the United States to recover the tax.

This was an action brought in the court below against the collector of the port of New York, to recover a sum exacted as a .ten per cent, ad valorem duty upon a quantity of indigo, the product of a country east of the Cape of Good Hope, and which had been imported into New York, on the 7th of July, 1865, from England.

Held: therefore, that the propeller was alone to blame, and it dismissed thelibel. † *34 *35 *36 On appeal to the Circuit Court, while that court was fully of the opinion wTith the District Court, that the propeller was in great fault in'driving at a reckless rate in narrow water, where vessels in tow usually cut off from their tugs,'and where a small channel is liable to be crowded by numerous tows — as this channel at…

Held: to bo for a device or instrument used in a process, and not for the process itself. 2.

is thus: “ Where a manufacturing corporation, chartered by New Jersey, and having its place of business and manufactory in that State, had a store in Now York, conducted by its agents, where its goods were sold, and a suit was commenced in this court by attaching the goods found in that store, and serving a summons on its president at New York, yet held that the corporation was not an inhabitant of the district of New York, or found within it at the time of serving the…

Held: and from any action by himself or any attorney or agent to interfere with any proceeding for the reorganization of the said company under the contract mentioned in said bill, &c., and from any proceeding whatever not in accordance with the said, contracts, without prejudice,” as therein recited.

Held: the tide still rising, and that at high tide the water in the hold increased in depth to twenty feet.

On motion. The facts were these: Lee, domiciled in New York, sold and conveyed in 1855 to Noonan, domiciled in Wisconsin, a tract of land in the latter State, taking his bond and mortgage for the purchase-money. But there being at the time a question as to the validity of Lee’s title, he agreed that if the title failed he would not enforce the bond.

The act goes on to say: “Any person claiming to have been the owner of any such abandoned or captured property may prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court (1) of his ownership of said property, (2) of his right to the proceeds thereof, and (3) that he has never given any aid or comfort to the present rebellion, receive the residue of such proceeds.” No special jurisdiction in the matter was given by this…

Motion to dismiss an appeal; the case being thus :■ Iu March, 1867, Harris, Howell & Co. libelled the steamer Eutaw, iu the District Court at New York, for repairs, supplies, advances, and labor and services to the vessel, at Wilmington, N. C. The answer denied generally the allegations of the libel.

Held: That the acceptance by the counsel, J. A. I., in the circumstantial language above quoted, was a waiver of the irregularity in the citation. 2.

Baker v. Morton, 79 U.S. (12 Wall.) 150 (1870), was the second of two land claim suits to come out of Omaha, Nebraska Territory, filed in September 1860, prior to statehood. A claim jumper filed suit against local land barons to stake out a homestead in the area that was to become the city of Omaha. The case was important for establishing homesteaders' rights and ensuring that the future growth of Omaha would benefit everyone, not just wealthy landowners and speculators.

i. Motion to advance a cause, &c. Seven persons, asserting themselves to be the true directors of the Rochester and Genesee Railroad Company, a corporation created by the State of.

On motion to advance this cause, one in error to the Court of Appeals of the State of Maryland'.

L. & M. Huchberger brought suit against the Merchants’ Insurance Company of Providence, R. L, declaring upon a contract to insure them for one year from September 14th, 1866, against loss by fire on their goods “contained in the brick building No. 173 Lake Street, Chicago.” The narr also set out that it was provided in the. policy that if the situation of the property should during the existence of the policy be changed by the assured, the policy should be void; and also it…

This appeal originated in a libel in the Admiralty by the owner of the canal-boat Eldridge, against the steamer Syracuse, to recover the damages occasioned to her by her running into a vessel at anchor in the harbor of New York, the canal-boat being at the time in tow of the. Syracuse.

F. Shepley, who had been appointed military governor of the State, commissioned W. W. Handlin as judge of the Third District Court of New Orleans. Handlin took the prescribed oath and entered upon the duties of his office.

This was an application by Mr. Bristow, the Solicit-General, and Mr. Hill, the Assistant Attorney-General, in behalf of the government, for the continuance of an appealfrorn the Court of Claims, founded upon the fact that evidence had been newly discovered on which a motion in behalf of the United States-had been made fdr a new trial, under the act of June 25,’1868.

” . . . The act proceeded, however, further to declare that “ no widow married after the lsi day of January, 1800, should be entitled to receive a pension under the act.” A subsequent section euaeted that the same rules of evidence, regulations, and prescriptions should Apply and govern the Commissioner of Pensions and pension agents as then prevailed under existiug pension laws which related to widows, of Revolutionary officers and soldiers.

Held: that"there was no-recourse by the consignee against the bank. Error'to the Circuit Court for the District of Wisconsin; the case being thus: Chapin & Miles, a forwarding and commission- firm in Milwaukee, were engaged in moving produce to Hoffman & Co., of Philadelphia, for sale there.

The policy covered the steamer, her hull, boilers, machinery, tackle, furniture, apparel, &c., whether stationary or movable', whether the boat should be running or not running, and insured against all such loss or damage, not exceeding the sum insured, as should happen to the property by fire, other than fire happening by means of afiy invasion, insurrection, riot, or civil commotion, or of any military or usurped power. ■ While on one of her regular'trips from Norwich to…

In which the controlling question was the same as in the case just reported — a question which the court said that they did not propose to reconsider. This second case had been adjudged below, before the other one, and not on a finding of facts by the court, hut on a verdict by a jury; the issues of fact being submitted to it under instructions from the court.

Held: that to consider this as a tonnage duty, “ would be to confound things essentially different.

<p>Error to the Circuit Court for the District of Indiana.</p> <p>Thia-was an action of debt brought by the Bank of Ash-land, a corporation of Kentucky, against the Junction.Railroad Company, a corporation of Indiana, to recover the amount of nine bonds of the latter cornpauyfor one thousand dollars each, with interest coupons attached. The bonds bore date the 1st day of July, 1853, and were payable to Caleb Jones, or bearer, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, on the 1st day of July, 1863, with interest at the rate of ten per cent, per annum, payable half-yearly. The declaration contained twenty special counts on the bonds and coupons,.and one common count for money lent, paid, had and received, and account stated. To the last count there was a plea of nil debet, and to the twenty special counts the defendant filed four special pleas, the substance of which was that the bonds were obtained by the plaintiff'from the Ohio Life Insurance and Trust Company, and that they were originally negotiated by the defendant to that company in Cincinnati at par, under the pretence of a sale of the bonds, but, in truth, by way of a loan of money from the Ohio Trust Company to the defendant., upon interest at the rate of ten per cent, per annum — a rate which, as stated in the first special plea, the Ohio Company, by its charter, was prohibited from taking, and which, as stated in the second of said pleas, the defendant, by the law which authorized it to do business in Ohio, was prohibited from paying; and which, as stated in the third plea, was forbidden by the usury laws of New York, where the bonds were made payable. . The pleas alleged that the plaintiff' took the bonds with notice of the usurious consideration. These pleas being demurred to and overruled, the defendant filed a fourth special plea to the same counts, setting forth substantially the same facts as in the first plea, with a more specific averment of a corrupt and usurious agreement. To this plea the plaintiff*'replied that the bonds were purchased from the defendant by the Ohio Life and Trust Company in good faith, and that the plaintiff received them in good faith, with the assurance and belief that they had been so purchased and had not been received as security for a loan.</p> <p>A jury being waived, the cause was tried by the court, which made a special finding of the facts; the substance of ■which wTas, that 'the bonds declared on were, as alleged in the pleas, originally negotiated by the defendant below to the Ohio Life Insurance and Trust Company, at its office in Cincinnati, Ohio, at par, being parcel of one hundred and twenty-five bonds negotiated together; that the defendant proposed to sell the bonds to the Trust Company, but the latter refused to take them unless some persons other than the defendant would guaranty their payment, which was done; whereupon the‘negotiation was consummated; that said negotiation did not amount to a loan of money, but to a sale of the bonds, and that the transaction involved nothing usurious; that in 1857- the Trust Company transferred the bonds to the plaintiff below in payment of a debt; and that the plaintiff* took them in good faith, without any notice of the fact of usury or of illegality in the issuing of the bonds, but had notice-of the guaranty. Upon these facts the court below gave, -the plaintiff- judgment for the full amount of the bonds and interest; and the defendant broughtFthe case here.</p> <p>To, enable the reader the better to judge at this point of "the case, whether the judgment below was rightly or not rightly given, it should be mentioned, that in New York by a'statute enacted April 6th, 1850, a defence of usury cannot be set up by corporations; that by a supplement to its charter, dated January 29th, 1851, the Junction Railroad Company was empowered to borrow money or sell its securities at any rate of interest; and that by statute of Ohio, passed December 15th, 1852, any railroad company authorized to borrow money .and issue bonds for it, may sell its bonds ' when, where, and at such rate and price as the directors deem most-advantageous to tlie road; and.finally, that by a second statute of the same State; the Junction Railroad Company was made a corporation of Ohio, and authorized to'perform-any act as if originally incorporated therein.</p>

, merchants of St. Louis, agaiust the United States for $163,111, as a balance due on a sale of military stores.

Held: 1st, that the assignment of Sibley passed to Burns one-half interest in the contract of Sibley with the government, and the right to a moiety of the royalty stipulated; 2d, that the order of the Secretary of War, in December, 1861, did not terminate the contract; 3d, that the War Department, by its previous payments to Burns of one-half of the royalty, stipulated, severed his claim from' that of Sibley under the…

Held: that the charge was not erroneous; that it only required of the defendant what might be called ordinary care and diligence under the special circumstances of the case. 2. What is ordinary negligence depends on the.character of the employment. Where skill and capacity are required to accomplish an undertaking, it would be negligence not to employ persons having those qualifications. 3.

Motion by Mr. Nathaniel Wilson to dismiss a writ of error to the Supreme Court of Montana Territory; the case as it seemed, from a not very clear record, being thus: ■ J. Mason and L. B. Duke brought suit in the court below against Jules Germain to recover a balance due for work aud materials furnished in building a house, and to enforce •a mechanic’s lieu against the house and the lot on which it wa§ built for the debt.

Swift, a surgeon in the army of the United States, brought a suit in the court below against the Hannibal and St. Jo seph Railroad Company, to recover the value of certain baggage and personal property, owned by him, and lost when in a course of transportation on the said road.

Held: to be no objection to the judgment, it is remarkable that so little is said as to the mode in which this waiver shall be made to appear. In most of the cases it is somewhere in the record stated affirmatively that the parties did waive a jury, or did consent to the trial by the court without a jury.

Held: that the company, it being a stools: company, was bound.

Held: that tho petition find motion were rightly denied ; for that if A. had a claim on the United States, he was in fault in not having discovered and pleaded it. - 2. Audits querelS does not lie where the party has had a legal opportunity of defence and neglected it. 8. Nor in any case against the United States. Error' to the Circuit Court for the District of West Tennessee.

The action in, the court below was in covenant and brought by Wadsworth, who resided in New York but owned property at Chicago, against J. B. Warren and W. Fleming, to recover rent upon a written lease of the same, alleged to have been executed by the said Warren and Fleming. . Fleming being a bankrupt, Warren alone defended.

<p>Appeal from the Court of Claims dismissing a petition before it, as-not “founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States;” confessedly the only cases, in which the court, by the statutes creating it, has jurisdiction.</p>

of Yerba Buena. The plaintiff having given in evidence various deeds, and rested, the defendants offered a writing, dated Yerba Buena, December 5th, 1845, purporting to bo a petition by one Briones for the grant of the lot, under which was written an instrument dated Deeember7tb, 1845, purporting to be a grant of the lotvby “the citizen José de la Cruz Sanchez, justice of the peace of the jurisdiction .” The “ grant ” was objected to on the ground that the name of Sanchez…

bill in the court below against Jacinto Rodriguez and George Steele with three others, his brothers, to redeem a ranch of land near San Luis Obispo, in California, known as the Rancho Corral de Piedra, from an instrument which he averred to be a mortgage upon the land; an instrument whose history was much disputed, but which seemed essentially thus: In 1852, José Maria Villaviceueia, called for brevity Villa, being owner of the ranch in question, having at the time seven…

This was an action by Doane against L. & J. Hanauer, to recover the amount of two promissory notes, dated in February, 1867. - These notes were originally given by the said L. &. J. Hanauer, under the-firm of L. Hanauer & Co., to one Hunter, in settlement of an account between them and the firm of Hunter & Oakes, which had mostly accrued.in the years 1860,"1861, and 1862.

<p>1. Where the issue of bills as a currency (except by banking institutions) is prohibited, a municipal corporation has no power, without express authority, to issue such bills; and if it does issue them, the holders thereof cannot recover the amount, either in an action,on the bills themselves, or for money had. and received.</p> <p>2. Especially is this so, whore the receiving, as well as issuing, of unlawful bills is expressly prdhibited.</p> <p>8. A law authorizing and requiring the redemption of such'bills, passed by the legislature of one of the late Confederate States in aid of the rebellion, cannot be recognized or enforced.</p> <p>4. Semble; that a bank or other private corporation issuing bills contrary to law, might be compelled to pay the holder in an action for money had and received, although the bills themselves were void, if the receiving of the bills were not expressly prohibited.</p> <p>5. But if the receiving ns well as issuing were prohibited, both parties would be in pari delicto, and no action could be sustained for the ¿mount of the bills.</p> <p>6. The law as to the recovery of money paid, on an illegal contract stated and defined.</p>

Held: that the grantor could not, six years afterwards, disavow the act of his attorney and convey the land to another person. 2.

This was a, suit instituted by the United States, as the holder of a number of the first and second mortgage bonds of the New Orleans and Ohio Railroad Company, against ¡that company, and one Trimble, trustee of them, to foreclose the mortgages given to secure the said bonds. These mortgages were executed in 1858 and 1860, respectively, and covered all the company’s property of every kind, with a stipulation to include also all future acquired property.

Resort is had by vessels to this place only/or .the purpose of getting lumber, and the wharfage is so bad that but one vessel can load at a time; considerable detentions as regards vessels not reaching the wharf being the consequence. The Lane-was considerably in advance of the Spray.

Suit for damages for personal injuries happening on araik car; ■ the case being thus: In 1867, Shoemaker mid another were contractors for-building the Eastern-Division of the Union Pacific Railway-in Kansas; and in- October of that year they ran a construction train over a'portion of the road, carrying matérial for it.

Two separate matters here reported arose upon a motion to dismiss a writ of error to the Supreme Court of Appeals of Virginia. The case was thus: The Exchange Bank of Virginia wa's, by its charter, authorized to issue notes of circulation, which were made a valid tender to the bank in payment of any debt due to it.

Mr. J. Eubley Ashton moved to dismiss, for want of jurisdiction, a writ of error in this suit, one from the Supreme Court of New York; the case being this: The Revised Statutes of New York.declare* that: “ Whenever any incorporated company shall have remained insolvent for one whole year, or for one year shall have refused or neglected to redeem its notes or other evidences of debt, or shall for one year have suspended the ordinary business of such incorporation, such…

On motion. — John Low, Jr., had libelled the steamer Western Metropolis, in the District Court at New York, for damages sustained by a collision between that steamer and the schooner Triumph, owned by the libellant. The District and Circuit Courts decreed in his favor, and the owner of the steamer appealed to this court.

Parker brought ejectment against Latey-to recover possession of a certain tract of.land situate in the city of Omaha, in the State of Nebraska, désoribed in the declaration, and there stated to be of “ the.value of $500 and over.” Verdict and judgment were for the defendant, and the plaintiff sued out this writ of error.

Held: and so instructed the jury, that the notice was not such as the lp.w required. The reasons assigned for this ruling were that the advertisement did not state that the whole town of Beaufort was to be sold, and that, being a notice published within military lines, it was like a notice only in a fortified camp, and could not, in fact, be supposed to reach a citizen.

<p>Error to the Circuit Court for the District of "Wiscousiu.</p>

Held: under the punctuation of the policy, to mean “in quantities exceeding a barrel;” this being a more reasonable construction than one which made the policy void if there was any quantity, however small, of these articles, on the premises. , 2.

Court for the Southern District of New York, in a libel in personam, for a collision between vessels at sea. The case was thus: By an act of Congress of -March 8d, 1851, it is enacted— “Section 8.

Held: That the statute imposed a discriminating tax upon non-resident traders trading in the limits mentioned, and that it was pro tanto repugnant . to the Federal Constitution.and void. Error to the Court of Appeals ofthe State of Maryland;, the case being this : The Constitution of the United States, in one place, thus ordains: “Article IY. Sec. 2.

Held: ' (ij That insanity was a sufficient excuse for failure to comply with the condition of the policy requiring such an affidavit. (ii) Thatif tbe affidavit contained the necessary information as to the time, amount', and circumstances of the loss, it was sufficient, though the insured was insane when it was made. 2.

Madame Dreviile filed her petition in the court below against one Walker, in which she alleged that he, Walker, was indebted to her in the sum of $5492, and she showed how this debt originated; how the note on which it .was founded came into her possession; how much of it has been paid, and how much remained due. ' She further set forth that a mortgage was given by him ou certain real estate, which she described, to secure the payment of the note, and she.filed as-exhibits,…

Held: that a contract to transport goods from B. to 0. and to and from all points between them, when the transportation was to bo by water, was not a contract to transport from A. to C., although such transportation necessarily involved (as a greater includes a less) a transportation between B. and C. Appeal from the Court of .Claims. 1 Messrs. A. H. Garland, N. P. Chipman, and JS. L. Stanton, for the appellant; Mr. B. II.

In 1862, during the late rebellion, the courts of the United States were broken up within the limits of Louisiana.

Boyce filed a libel in the District Court for the Southern District of New York, against the steamer Patapsco, claiming $1724. That court dismissed the libel; but, on appeal, 'the Circuit Court reversed the'decree and sent the case to a master, to report the amount due. The master, on the 15th July, 1868, reported $1982.

Motion to dismiss, for want of'jurisdiction, an appeal from the Circuit Court for Missouri: the case being thus: The act to establish a uniform system of bankruptcy† gives to the District Courts exclusive original jurisdiction in matters of bankruptcy, including “the adjustment of the various priorities and conflicting interests of all parties.” The act enacts, however, by its 2d section : “ That the several Circuit Courts . . . within and for the districts where the…

This was ’a motion to dismiss, for want of jurisdiction, a. writ of error to the Supreme Court of New York; the case being- thus: In 1833 an agreement was made between New York and New Jersey, relative to the boundary lino between the two States, to which Congress gave its assent by an act approved June 28th, 1834.

Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871), was an important case for its time in which the Supreme Court of the United States overruled Hepburn v. Griswold. In Knox v. Lee, the Court held that making paper money legal tender through the Legal Tender Act did not conflict with Article I of the United States Constitution. Mrs. Lee was a loyal citizen of the United States whose flock of sheep was sold by the Confederate Army, as the Confederates considered Mrs. Lee an "alien enemy". Mr. Knox purchased the sheep from the Confederate army, and Mrs. Lee brought suit for trespass and conversion. The Court instructed the jury that whatever amount they awarded could be paid with legal tender notes of the United States. Mr.

' Bronson, of New York, being owner as executor of lands in Wisconsin, sold a tract to E. and J. Chappell, residing near Galena, in that State, the sale being negotiated by one-. W. C. Bostwick, of the last-named place.

Held: or ■ *690 authority exercised under the United States, and the decision is against the title, right, privilege [or immunity], specially set up or claimed by either party-under such constitution, treaty, statute, commission [or authority], may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error,.... in the same manner and under the same regulations, and the writ…

This was a motion, by Mr. P. Phillips to dismiss ah appeal from a decree of the Circuit ¿¡ourt of the United States in ' the Southern District of Alabama.