Volume 93 — United States Reports

The Richmond, and Danville Railroad Company, a stockholder in the Atlanta and Richmond Air-Line Railroad Company, obtained a decree in the Circuit Court enjoining the taxing officers of South Carolina from levying and collecting, and the last-named company from paying, any State, county, or municipal taxes upon its property within that State, upon the ground that by its charter it was exempt from such taxation. This appeal was taken from that decree.

<p>Where, in a suit between some of the claimants to the hot springs in Arkansas, the Supreme Court of that State by its decree refused aid to any of them against the other, except as to the improvements erected by each respectively on the property, and as to them saved the rights of the United States, this court, having decided in Hot Springs Cases, 92 U. S. 698, that the United States is the owner of the property, affirms' that decree.</p>

This is a bill in equity, filed in this court .by the State of South Carolina, praying for an injunction restraining the State of Georgia, Alonzo Taft (Secretary of War), A. A. Humphries, (chief of. the corps, of engineers United States army), Q. A. Gilmore (lieutenant-colonel • of that corps), ■ and their agents and subordinates, from “ obstructing or interrupting ” the navigation of the Savannah River, nr violation of the compact entered into between-the States of South…

Held: that the action of the "court in striking out the. answer and proceeding to judgment was erroneous.' Error to the Circuit Court of the United States for the Western.- District of Arkansas. Submitted on printed arguments 'by Mr. Benjamin T. Duval *15 for the plaintiffs in error, and by Mr. Isaac Dayton for the defendants in error.

Mr. William Green presented the petition of Richard S. Parks praying for a writ of habeas corpus. The petition is set forth, and the facts in the case are stated, in the opinion of the court.

The first of these cases is here on appeal from,. and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi.

<p>Arpeal from the Circuit Court of the United States for the Southern District of Georgia.</p>

<p>In an action against an executor .upon a contract of his testator, where a devastavit is not alleged and proved, a judgment de bonis propriis is erroneous.</p>

Held: that the amount in dispute here is the interest of A. in that portion of the §30,000 payable by the decree to B., which the former would have received had his exception been sustained, and the amount decreed 'the latter been distributed pro rata among all the creditors. As that interest 'is less than §2,000, this court has no jurisdiction.

Error, to the Circuit Court of the United States for the Southern District of .Illinois.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia.</p>

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

Hurst, the plaintiff in error, a citizen of Tennessee, sued the Western and Atlantic Railroad Company, a corporation of, Georgia, in the law court of Chattanooga, Tenn., at its October Term, 1866. The cause was tried at the February Term, 1868, of that court, and resulted in a judgment in favor of Hurst. The Supreme Court of the State, at its October Term, 1869, reversed this judgment, and sent the cause back for a new trial.

It appears by the complaint in this cause, that the plaintiff recovered a judgment against the defendants in New York, on the fourteenth day of June, 1862, for upwards, of $15,000, . — the plaintiff being a corporation of New York, and the defendants all having appeared in the suit. The present suit was brought on that judgment; but only one of the defendants was served with process, the others residing out of the jurisdiction of the court.

- Error to the. Circuit Court of the United States for the Eastern'District;, of Missouri. ' This is an action of ejectment, brought Aug. ’27, 1873, for. part of a tract of land known as Survey 422, situate .in the county .of ‘ St... Louis, Mo.. The parties .claimed title under Auguste Dodier, and defendants relied also on the ¡-Statute of Limitations.

Held: in Hogan v. Ross, 11 How. 297 , that there was no authority “to award a supersedeas to stay proceedings on the judgment of an inferior court upon the ground that a writ of error is pending, unless the writ was sued out within ten days after judgment and in conformity with the provisions of the’’ act; and in Railroad Co. v. Harris, 7 Wall. 575 , that the effect of the writ as a supersedeas “ depends upon compliance…

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

Held: that the bank was liable for any loss thereby sustained by the holder of the note. 2. As tlie Statute of Limitations was suspended in Louisiana during the war, the note was not prescribed when the plaintiffs, the executors of A., made a legal demand on the defendant by instituting this action, Jan. 5, 1870.

Held: that, as owners, they were responsible for the conduct of all' the officers and employés of the vessels, and that it was immaterial whether the vessels Avere or not at the time of the collision under the exclusive charge of the pilots. The instructions to the jury, át least, went to that extent. They, in substance, declared that, if the collision occurred Avithin the territorial jurisdiction -of.

Held: where, tipon appeal from an interlocutory order made by a circuit-court of .Indiana, granting a temporary injunction, the Supreme Court of the State reversed the order and remanded the cause to the lower court, with directions to dismiss the complaint. 2.

Held: that the ordinance is not ‘in violation of that clause of th,e .-Constitution of the United States which declares that “ no State shall pass any law impairing the obligations of contracts.” Ekbqb to the Supreme Court of the State of Georgia.

Held: that the decree was proper. Appeal from the Circuit Court of the United States for the district of Iowa. The facts are stated in the

Held: in The Bank v. Deveaux, 5 Crunch, 61, that this did not authorize the bank to sue in the courts of the United States, without showing proper citizenship of the parties in different States. The bank was obliged to sue in the State courts. And yet here was a right arising under a law of the United States, as much so as can be affirmed of a case of an assignee in bankruptcy.

<p>1. It. is now the-prevailing rule in this country, that a party may maintain assumpsit on a promise not under seal made to another for his benefit.</p> <p>2. In the absence of any evidence whatever to contradict or vary the case made by the plaintiff; it is not error for the court, when the legal effect of the" plaintiff’s evidence warrants a verdict for him, to so charge the jury.</p>

<p>Appeal from the Circuit Court of the United States for the Western .District of Pennsylvania.</p> <p>•Thé facts are stated in the opinion of the court.</p>

Held: that court having circuit-court jurisdiction apd powers in that part of the district of South Carolina embraced within the western district. Before the term, the attorneys, of Stewart & Co. notified the attorneys of Kerrison Leiding that they should insist upon the trial of the cause at that term and place. Accordingly, the parties appeared, and upon the regular call of the docket a trial was had.

Held: upon full consideration, that “courts have the power to amend their process and records, notwithstanding such amendment may affect existing rights.” Greene v. Cole, 13 Ired. Law, 425. *167 Where no local statute or rule of local law is involved, the power to amend is the same in attachment suits as in others.

Held: that a patent so issued cannot be impeached in an action at law, by showing that the land which it conveys was not in fact swamp and overflowed land. 2. Railroad Company v. Smith, 9 Wall. 95 , examined, and held not to conflict with this principle. Error to the Circuit Court of the United States for the Eastern District of Missouri.

e -'.actions by tfie plaintiffs in error to recover tbe value of certain packages containing money, which, on tbeir transportation over tbe, Louisville and Nashville Railroad in charge, of a messenger of the defendant in error, were destroyed by fire. - There was a verdict and judgment in each case for tie defendant. Tbe plaintiffs sued'out these writs of error. Tbe facts are set forth in the opinion, of tbe court.

. Tbis is a. libel of information by tbe United States against forty-three gallons of whiskey,, sundry peltries, and other goods and merchandise,-seized as forfeited by virtue of' the twentieth section of the. act of Congress approved. June -30, 1834, as amended by the act approved March 15, 1864. -There are two special counts in' the libel.

Held: that, under the act of Eeb. 28, 1839 ( 5 Stat. 321 ), such service brought him within the jurisdiction of the court. 2. A court which has acquired rightful jurisdiction of the parties and subject-matter will retain it for all purposes within the general scope of the equities to be enforced. 3.

Held: that the grant made by the act .of the school sections was a present grant, vesting the title in the State to the sixteenth and thirty-sixth sections absolutely, as fast as the townships were surveyed and sectionized. Higgins v. Houg hton, 25 Cal. 252 .

Tbis was an action by tbe State of Louisiana against Morgan, to recover certain taxes; The facts are stated- in the opinion of tbe court. The judgment below was in favor of the plaintiff. Tbe defendant thereupon sued out this writ of error. 1. Tbe legislature of Louisiana bad power to exempt the ' property from taxation; and tbe grant made in tbis case whs a' contract which was inviolable.

This action was brought by the Hartford and New Haven Railroad Company against Henry A. Grant, collector of internal revenue for the first district of Connecticut, to recover the sum of $2,785.65 income tax, and $139.28 penalty, paid to .him under protest in January, 1868. The controversy arose upon the question of the company’s income for the two fiscal years ending Aug. 31,1867.

Held: That an action at law cannot be sustained by one creditor among many for the liability thus created, or for any part of it, but that the remedy is in equity. 2. That this excess constitutes a fund for the benefit of all the creditors, so far as the condition of the company renders a resort to it necessary for the payment of its debts. Error to the Supreme Court of the District of Columbia.

Held: in Life and Fire Insurance Company of New York v. Wilson's Heirs, 8 Pet. 303 , decided in 1834, that “ the judgment, without the signature of the judge, cannot be enforced. It is not a final judgment on which a writ of error may issue for its reversal. Without the *235 action of the judge, tbe plaintiffs can take no step. . . .

Held: that the United States were charterers of the steamer upon a contract of affreightment, and that they were not liable, under such a contract, to the owner for the value of the steamer, though she was destroyed by fire whilst returning from the trip, without his .fault. Appeal from the Court of Claims.

Held: that “in an action upon a money demand, whére the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and.not merely the damages alleged or the prayer ,for judgment at its conclusion must be considered in determining whether this court can take jurisdiction.” Applying this rule, which is clearly right, to the present case, it is ordered that…

Held: That, under sect. 243 of the act of June 8, 1872 ( 17 Stat. 313 ), this was a sufficient notice that proposals were desired for carrying the mails between Port Townsend and Sitka.. 2. That the acceptance by the Post-Office Department of the proposal of a bidder to so carry them created a contract of the same force and .effect as if a formal contract had been written out and signed by the parties.

This was a suit brought Dec. 21, 1871, against the United States, to recover $17,356, expended by claimants in hauling, baling, and ginning cotton in Arkansas, in 1865, under a contract with A. B. Miller, assistant special agent of the treasurymade at Camden, Ark., dated Nov. 10, 1865, by which they agreed to proceed to La Fayette County, procure evidence of the right of the United States to cotton there, put the same into shipping order, and transport it to Camden, for a…

Held: the term of office of the then existing membérs having expired in 1862; and the board has been functus officio, and has for over fifteen years past ceased to have any duties to perform, or any existence whatever, except for the purpose of discharging its old indebtedness.

<p>A change in the charter of a municipal corporation, in whole or part, by an amendment of its provisions, or the substitution of a new charter in place of the old one, embracing substantially the same corporators and the same territory, will -not be deemed, in the absence of express legislative declaration otherwise, to affect the identity of the corporation, or to relieve it from its previous liabilities, although different powers are possessed under the amended or new chapter, and different officers administer its affairs.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This was a bill filed for an account, 'and for an injunction restraining the defendant from infringing Dalton’s letters patent. Upon the final hearing of the cause'the court below dismissed the bill, and Dalton appealed here.</p>

Held: that the subsequent sentence of confiscation of his property was ,as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect" of striking out his appearance was to recall the monition aitd notice as to him. 4.

Held: that a replication setting up that, “at the time when he inflicted said wound, he was of unsound mind, and wholly unconscious of his act,” is bad. Error to the Circuit Court of the United States for the Northern District of Illinois. This is an action on two policies issued by the defendant on the life of Henry W. Bigelow.

Kenny and Foley, the plaintiffs below, sued Sawin and the Little- Rock, Pine Bluff, and New Orleans Railroad Company, upon a contract which on its face appeared to have been executed by and to bind only Sawin, of the one part, and Kenny and Foley, of the other.

Held: that the charge was not erroneous. 7. The construction given in Nudd et al. v. Burrows, Assignee, 91 U. S. 426 , to the act of June 1, 1872 ( 17 Stat. 197 ), reaffirmed. 8. A motion for a new trial is not a mere matter of proceeding or practice in the district and circuit courts. It is, therefore, not within the act of June 1, 1872, and cannot be affected by any State law upon the subject.

<p>The doctrine announced in Jerome v. McCarter, 21 Wall. 17, affirmed, and applied to this case.</p>

Held: that he was entitled to a decree against it for the entire amount of his damages. Cjross-appeals from the Circuit Court of the United States for the Eastern District of New York.

Held: that this court has no jurisdiction. Error to the Supreme Court of the State of Ohio. Pending á suit in the District Court of Stark County, Ohio, a petition was filed, under the act of March 2,1867 ( 14 Stat. 558 ), for its removal to the Circuit Court of the United States for the Northern District in that State.

This was replevin by the plaintiff to recover a collateral security pledged to one Kendig, a broker, and by him sold to the defendant. Under the instructions of the cojurt below, the jury found a verdict for the defendant; judgment was rendered thereon, and the plaintiff sued out this writ of error. The facts are fully set forth in the opinion of the court. The chattel replevied was a mere chose in action, and was not assigned by the owner.

Held: that, as the testator had given in express terms an interest for life, the ambiguous words afterwards thrown in could not extend that interest to the absolute property. “ I must construe,” said the Master of the Rolls, “ the subsequent words with reference to the express interest for life previously given, that she is to have as full, free, and absolute disposition as a tenant for life can have.” In Smith v. Bell,…

<p>1. The doctrine announced in The Atlas, supra, p. 302, that where an innocent party suffers damages by a collision resulting from the mutual fault of two vessels, only one of which is libelled, the decree should be against such vessel for the whole amount of the damages, and not for a moiety thereof, reaffirmed, and applied to this case.</p> <p>2. This court will not, in a case of collision, reverse the concurrent decrees of the courts below, upon a mere difference of opinion as to the weight and effect of conflicting testimony. To warrant a reversal, it must be clear that the lower courts have committed an error, and that a wrong has been done to the appellant.</p>

<p>Ebbob to the Circuit Court of the United States for the District of Louisiana.</p>

<p>1. Where a commission-merchant, in Baltimore, advanced to a pork-packer, in Peoria, $100,000, for whieh he was to receive interest at the rate of ten per e'ent per annum, and a fixed commission for the sale of the product, to be paid whether it was sold by the commission-merchant or not, it was properly left to the jury to decide on all the facts whether or not the commissions were a cover for usury, or were an honest contract for commission business, in connection with use of money.</p> <p>2. The expresSCagreement of ten per cent is not usurious, because lawful in Illinois, though not so in Maryland. Andrews v. Pond, 13 Pet. 65, reaffirmed.</p>

<p>Motion to dismiss a writ of error to the Circuit Court of the United States for the Northern District of Illinois.</p>

Held: that his claim for his fee was chargeable against the funds obtained by the receiver from the mortgaged property. Appeal from the Circuit Court of the United States for the Eastern District of Texas. Submitted on printed arguments by Mr. W. P. Ballinger for the appellants,, and by Mr. R. T. Merrick for the appellees.

Switzer brought suit against Mary Hein and John Hein in the Second Judicial District Court for the parish of Jefferson, which, by consent of parties, was transferred to the Fifth District Court of the parish of Orleans. During its pendency, he suggested that since the institution thereof the defendants had taken the benefit of the bankrupt law, and that Emory E. Norton had been appointed and qualified as their assignee.

This was a suit for an infringement of the complainant’s letters-patent, Avhich are as follows: — United States oe America. “ To all to whom these presents shall come: “Whereas, Moritz Cohn, of New York, N. Y., has presented to the Commissioner of Patents a petition praying for the grant of letters-patent for an alleged new and useful improvement in corsets, a description of which invention is contained in the specification, of which a copy is hereunto annexed and made a…

Held: that such person thereby became the purchaser of the note, the negotiability of which remains after as before maturity, subject to the equities between tlie parties. Appeal from the Supreme Court of tlie District of Columbia.

Held: that a sale of land at any time during the period from the 4th to the 18th was valid, and that recording sucli sale as made on the first day, though actually-made later, did not impair the title. Appeal from tbe Circuit Court of the United States for the District of Iowa.

<p>1. The court is not authorized to take from the jury the right of weighing the evidence bearing on controverted facts in issue.</p> <p>2. The court below properly refused to give an instruction declaring that a fact was established by unimpeached and uncontradicted testimony, when the record discloses that the testimony touching such asserted fact was conflicting.</p> <p>3. This court can only review so much of the instructions of the court below as was made the subject of an exception.</p> <p>4. The omission of the judge to' instruct the jury on a particular aspect of the case, however material, cannot he assigned for error, unless his attention was called to it witli a request to instruct upon it.</p>

Held: the use of which prison or penitentiary is allowed by the legislature of such State for such purposes.”- 13 Stat. 500 . This provision is also reproduced in sect. 5541 of the Revised Statutes, save only that the words “ State jail ” are substituted for the words “ State prison,” where they occur in the original act.

This was a libel by the owners of the sloop'“ Venus ” against the steam-propeller “ John L. Hasbrouck,” to recover damages for the sinking of the sloop by a collision with the propeller on the Hudson River, near West Point, on the night of Nov. 27, 1869. The District Court held that the collision was caused by the sole fault of the “Venus,” and entered a decree dismissing the libel: which decree having been affirmed by the Circuit Court, the libellant brought the case hero.

<p>1. To make a nunc pro tunc order effectual for the purposes of a supersedeas, it must appear that the delay was the act of the court, and not of the parties, and that injustice will not be done.</p> <p>2. A motion to set aside a decree, made by persons not parties to the suit, but who are permitted to intervene only for the purpose of an appeal from the decree as priginally rendered, will not operate to suspend such decree.</p> <p>3. Their separate appeal having been properly allowed and perfected, the case is here to the extent necessary for the protection of their interest.</p> <p>4. A cause, involving private interests only, will not be advanced for a hearing in preference to other suits on the docket.</p>

<p>The act of Congress of July 14, 1870 (16 Stat. 262), imposed on champagne wine a duty of six dollars per dozen bottles (quarts), and three dollars per dozen bottles (pints), and upon each bottle containing it an additional duty of three cents.</p>

Held: that the purchaser at the foreclosure sale acquired no right to such proceeds. Appeal from the Circuit Court of the United States for the Northern District of Illinois. The Rockford, Rock Island, and St. Louis Railroad Company-issued certain bonds secured by its mortgages to the Union Trust Company, the trustee Of the bondholders.

Held: that, in order to protect a retired partner against such acceptance of the draft at the suit of A., evidence, tending to show a public and notorious disavowal of the continuance of the partnership, is admissible. 2. It is not an absolute, inflexible rule, that there must be a publication in a newspaper to protect a retiring partner.

<p>Appeals from the Court of Claims.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of New York.</p>

Held: in the case of JSFezocomb v. State, 37 Miss. 400 , that the belief on the part of the accused that the deceased designed to kill him is no excuse for the homicidal act, unless the deceased at the time, made some attempt to execute such a design, and thereby induced the accused reasonably to believe that he intended to do so immediately.

Held: the proceeding to obtain the patent was a continuous one from 1855 until it was granted; if the application of 1855 is not severable from the proceedings of 1864, — there is no foundation whatever for the allegation that the invention was abandoned to the public, and that it was in public use or on sale for more than two years before the inventor’s application.

Held: that its action constitutes a waiver and an estoppel which prevent it from raising the objection that the .contract' was npt performed in time. , . 4.

This was an action of ejectment by the defendant in' error to recover the possession of certain lands situate in Santa Cruz County, Cal., being a part of the rancho Sal Si Puedes, and containing 1,021|- acres.

Held: that the several policies constituted double insurance, and that they hear a loss proportionally. 6.

the District of Columbia.' On the 13th of- January, 1872, the plaintiff below, administrator of Robert J. Atkinson, filed his declaration, claiming from the defendants $10,000 with interest, from May 1, 1871, for services alleged to have been performed by the deceased in prosecuting a claim in their behalf against the United States, before the third auditor of the treasury, from 1865 to Feb. 3, 1870, and subsequently by himself, as administrator, before the .secretary and…

<p>Error to the Supreme Court of the State of California.</p>

Held: that, in determining the jurisdictional sum, interest on the' judgment could not be considered, because interest on a judgment can only arise' after rendition, while the jurisdictional amount, if determined by-.the judgment, is fixed at rendition.

Held: that the constitutional provision prohibiting special enactments did not extend to amendments of laws in'force when it was adopted, but that additional power given to the Cape Girardeau Railroad, by the means of *571 an amendment to its charter, was a lawful exercise of authority.

Held: that, when the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justification for non-delivery, according to the directions of the bailor: Bliven v. Hudson River Railroad Co., 36 N. Y. 403 .

Appeals of the State of Maryland. In the progress of a suit pending in the Circuit Court of Queen Anne’s County, Md., to settle the affairs of McFreely & Hopper, an insolvent partnership, and to collect and apply the assets of the. firm to the payment of its liabilities, the United States presented a petition for the allowance of a claim in their favor, and its payment out of the fund in court in preference to other creditors, on account of the priority given to debts due…

<p>1. In Louisiana, a legacy to two persons, “ to be divided equally between them,” is a conjoint one. If but one of them survives the testator, he is entitled, by accretion, to the whole of the thing bequeathed.</p> <p>2, Parol evidence, to show the intention of the testator, is not admissible.</p>

This is an action commenced in the Circuit Court of Haywood County, Tenn., against the defendant in error as indorser of a bill of exchange drawn at Trenton, Tenn., Feb. 13, 1862, upon a firm in New Orleans, La., and payable four months after date. The bill was not presented in New Orleans until June 20, 1865, when, payment being refused, the plaintiff caused it to be protested.

<p>Error to the Supreme Court of the State of Wisconsin.</p>

On the seventh day of January, 1875, the relators filed in the Circuit Court for the Northern District of.

Held: that his purchase of the cotton was illegal and void, and gave him no title thereto. 3. Mitchell v. United States, 21 Wall. 350 , reaffirmed, and applied to this case. Appeal from the Court of Claims.

Held: that constructing, equipping, and putting in operation the road between St. .Paul and Winona by the' construction company, the St. Paul and Chicago company, or the assignees of either, was in that regard a sufficient compliance with the contract. The remaining ■ charge to which exception was taken relates to the connection of the road from St. Paul with the track of the St. Peter Railway within the limits of Winona.

<p>Error to tbe Circuit Court of the United States for -tbe Western District of Wisconsin.</p>

Court of the United States for the Eastern District of Tennessee. This is an action on a distiller’s bond given to the United States under the seventh section of the act of July 20, 1868, 15 Stat. 127..

, Emanuel Mann, a merchant doing business at Richfield, - a small village on the St. Paul Railway, filed, May 24, 1872, his petition, in the District Court of the United States for the Eastern District of Wisconsin, to be declared a bankrupt. ’He was duly adjudged a bankrupt the sixth day of June then next ensuing, and the plaintiff was, on the first day of the following July, appointed his assignee.

This is an action of ejectment brought, by Heydenfeldt in the District Court of the First Judicial District of Nevada, against the Daney Gold and Silver Mining Company. The case was tried by the court, which found the following facts : — On the fourteenth day of July, 1868,- the.

<p>Appeal from the Circuit Court of the United States for the District of Maryland.</p>

This is an action by'the defendant in error against Tameling, to recover possession of one hundred and sixty acres of land in the County of Costilla and Territory of Colorado.

Held: the said lease, in the chattel-mortgage records in said county. That such recording of said lease was more than one year subsequent to the sale, of said locomotive under said execution and levy. That said sale by said officer to said Hervey was under a special execution, as shown by the public records of said Coles County.

Held: owned, possessed, and enjoyed by her the same as though she was sole and unmarried-; and shall not be subject. to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.” These provisions were considered in Emerson v. Clayton, 32 Ill. 493 .