Volume 97 — United States Reports

Held: still our jurisdiction cannot be maintained, unless it also appears that this debt exceeds $5,000. Prima facie, the judgment against a defendant in an action for money is the measure of our jurisdiction in his behalf.

This is a suit in equity by the Milligan and Higgins Glue Company, against George Upton, for the alleged infringement, of reissued letters-patent No. 4072, for an improvement in the manufacture of glue, granted July 12, 1870, to Thomas P. Milligan and Thomas Higgins, assignees of Emerson Goddard, upon the surrender and. cancellation of original letters-patent No. 44,528, issued to the latter Oct. 4,1864. The complainant is the assignee of Milligan and Higgins.

<p>Letters-patent No. 37,941, granted March 17,1863, to William M. Welling, for an improvement in rings for martingales, are void for want of novelty, being merely for a product consisting of a metallic ring enveloped in a composition of ivory or similar material.</p>

Held: that the complainants bad the right to file their bill, and that the court below had jurisdiction, although some of the respondents were joined as such solely on the ground that they had refused to unite with the complainants in the prosecution of a suit to compel the trustee to foreclose the mortgage. 2.

Held: That the provisions of the act of 1809, touching the power reserved by the legislature, having been adopted in the charter, were a part of the contract between the State and the company, rendering the latter subject to the exercise of that power. 2. That the contract so contained in the charter was not affected by the • repeal of that act, nor was its obligation impaired by the prohibitory liquor law of 1869. 2.

Held: that C., not having been served with process, was not bound by the foreclosure proceedings, and that the title which passed by the sale under them was subject to his right of redemption. Appeal from the Circuit Court of the United States for the Northern District of Illinois.

This suit arises under the Abandoned and Captured Property Act (12 Stat. 820), and comes into this court by appeal from the judgment of the Court of Claims against John Young, trustee in bankruptcy of Alexander Collie, upon the following finding of facts: — “ I. Said Collie was a subject of the Queen of Great Britain and Ireland, at one time residing in Manchester, England, as a member of the firm of Alexander Collie & Co., but in the years 1862, 1868, and 1864, residing and…

Held: in the county where the premises are situated ; or, if there be two or more such buildings, then on the outward door of that which shall be nearest the premises.

This case arises upon a bill in equity, filed by Charles E. Grant, assignee in bankruptcy of John S. Miller, to set aside, a mortgage, or deed of trust, executed by him about two months prior to his bankruptcy. Miller was indebted to the First National Bank of Monmouth, Illinois, in about $6,200, of which $4,000 consisted of a note which had been twice renewed, and the balance was the amount which he had overdrawn his account in the bank.

Held: That the action of the county court im June 14, 1870, was not final and self-executing, and did not constitute a subscription to the Lexington, Chillicothe, and Gulf Railroad Company. 2. That the issue of the bonds to the Lexington, Lake,'and Gulf Railroad Company was not authorized by the election held May 3, 1870. 3. That there can be no recovery on said bonds, as their invalidity is shown by their recitals.

Held: that A., being a simple bailee of the money deposited in his hands, without compensation, was not, in the absence of bad faith on his part, responsible for the condition of the property at the time of its return. Error to the Circuit Court of the United States for the Western District of Michigan. The facts are stated in the

Held: in conformity to the laws in regard to ordinary State, city, county, or town elections, thirty days’ notice first having been given, by publication in at least one newspaper in the county, and six public notices, printed or written, having been posted in six of the most public places therein during the time above n.amed, and returns to be in a cl e in the usual way; at which election a majority of the legal voters,…

Held: that the delivery of them by the company to A. did not create a bailment, but that, upon such delivery, they, as well as those purchased by him with the money so advanced, became his sole property, and, as such, were subject to the execution. Error to tbe Circuit Court of tbe United States for tbe District of Massachusetts.

• Appeal fr.om tbe Circuit Court of tbe- United States for tbe Eastern District of Missouri. Tbe Union Paper-Bag Machine Company, assignee of William Goodale, to whom letters-patent No. 24,734, for an improvement in machines for making paper-bags, were issued July 12, 1859, and subsequently extended, brought this suit to restrain Merrick Murphy and it. W. Murphy from infringing said letters.

City of Elizabeth v. American Nicholson Pavement Co., 97 U.S. 126 (1878), was a case in which the Supreme Court of the United States held that while the public use of an invention more than one year prior to the inventor's application for a patent normally causes the inventor to lose his right to a patent, there is an exception to this rule for public uses for experimental purposes.

Held: that the decree gave substantial effect to' the equity of redemption secured by the statute. Appeal from tbe Circuit Court of tbe United States for .tbe District of Minnesota. Tbe facts are stated in the opinion of tbe court. Mr. H. J. Hdfrn for tbe appellant. Mr'. L. S. Dixon, contra.

<p>1. The provision in the Constitution of Alabama, which declares that “corporations may be formed under general laws, but shall not be created by special acts, except for municipal purposes,” does not prohibit the legislature from passing a special act changing the name of an existing railroad corporation, and giving it power to purchase additional property.</p> <p>2. A party is estopped from denying the corporate existence of a company when, by holding its bonds, he acquires a locus standi in the suit brought to foreclose the mortgage made to secure their payment.</p> <p>3. The sale of a bankrupt’s property under proceedings in involuntary bankruptcy cannot be invalidated by the fact that he, before their commencement, had promised to pay in full his debt to a creditor who, at his instance, instituted them.</p> <p>4. The act of Congress approved March 2, 1809 {2 Stat. 534), provides that, in case of the disability of a judge of the District Court of the United States to perform the duties of his office, such duties shall be performed by the justice of the Supreme Court allotted to the circuit which embraces the district. By the second section of the act approved April 10, 1869 (16 id. 44), the same power is conferred upon the circuit judge.</p> <p>5. Where bonds of a corporation, as prepared for issue and sale, promise payment in lawful money, and, as such, were guaranteed by a State, a stipulation that they shall be paid in coin, subsequently indorsed on them by the corporation, in accordance with the requirement of purchasers from it, is supplementary and subsidiary, and binds only the corporation itself.</p> <p>C. A court of equity having jurisdiction of the subject-matter and the parties, when it takes charge of a railroad and its appurtenances, as a trust fund for the payment of incumbrances, has power to appoint managing receivers of the property, and, for its preservation and management, authorize moneys to be raised, and declare the same chargeable as a paramount lien on the fund.</p>

This is a suit by Emory E. Norton; assignee in 'bankruptcy of Samuel DeBow & Co., to recover $3,206.66, paid by that firm to the treasury agent at New Orleans, Louisiana, June 13, 1865, under the eighth section of the .act of July 2, 1864 (13 Stat. 375), and the regulations of the Treasury Department, on account of certain cotton shipped from Vicksburg, Miss., to New Orleans.

Held: That the citizenship of the parties is not sufficiently shown to give the court below jurisdiction; and, were it otherwise, the decree is erroneous, in that it was taken against parties not served, and against the defendants jointly, while a several liability was imposed by the charter upon eaclt stockholder, not to exceed twice the amount of his shares. 2.

Held: That C. cannot be regarded as a purchaser of the lands. 2. That the payments by him so made, there having been neither fraud, mistake of fact, nor duress, were voluntary, in such a sense as to defeat the action. 3. That the statute of Kansas, as construed by the Supreme Court of that State, does not, upon the facts of the case, entitle him to recover.

English letters-patent No. 1830, dated July 21, 1863, and sealed Jan. 19, 1864, were granted to William Naylor, of England, for improvements in safety-valves and in apparatus connected therewith.

Held: That the lands, by reason of the non-performance within the specified time of the conditions mentioned in the warrant of survey, were forfeited and became subject to the disposing power of the United States. 2. That, if the legal representatives of B. had a valid claim, C., being a stranger thereto, and showing no interest therein, would not be entitled to a decree confirming it in their favor. 2.

Held: that the grant is subject to confirmation, under the act of June 22, 1860, entitled “An Act for the final adjustment of private land-claims in the States of Elorida, Louisiana, and Missouri, and for other purposes.” 12 Stat. 85 . 2.

The facts are. stated in the opinion of the court. The drawings of the machines of the respective parties therein referred to are as follows: — P. H. & F. M. Roots. ROTARY BLOWER CASE. Reissxied July 27, 1869. No. 3570. W. G. Hyndman. ROTARY BLOWER. Patented Aug. 9, 1870. No. 106,165.

Held: That the contract was for the sale and delivery of hay, and not for cutting and hauling grass. 2. That the obligation of the United States to A. was not that of an insurer against any loss he might sustain from hostile forces, but to protect his person and property while engaged in the effort to perform his contract. 3.

Held: that a mixture of smoking-tobacco, consisting of leaves from which the stems had been removed, and of stems so manipulated as to be undistinguishable from the leaf, — the proportion of stems and leaves being the same which they originally bore to each other,— was liable to a tax of forty cents per pound, as smoking-tobacco stemmed or butted. 2.

This was an action by John F. Shores, a citizen of New Hampshire, against the county of Macon, in the State of Missouri, to recover upon certain overdue coupons, detached from bonds which had been issued by that county, May 2, 1870, payable at the National Bank of Commerce in New York City, May 2, 1890, — the interest payable there semi-annually, upon presentation of the coupons.

<p>A claim under a Mexican grant was, in 1862, confirmed by this court to A. to the extent of five hundred acres of land. The title thereto was afterwards transferred to B., who brought ejectment therefor against A. The latter offered in evidence a duly certified copy of a decree of the District Court, rendered in pursuance of a mandate of this court of the 13th of June, 1866, confirming the title of the city of San José, as a successor of the Mexican pueblo of that name, to certain lands or commons belonging to the pueblo, the out-boundaries of which included the demanded premises; but the decree excepted from the confirmation all parcels vested in private proprietorship, under grants from lawful authority, which the tribunals of the United States had finally confirmed to parties claiming under such .grants. JSdd, that the offered evidence was properly excluded.</p>

Held: That the debt which the decree represents was contracted in March and July, 1867. 2. That the purpose of the act of 1869 was to relieve that territory from municipal obligations previously incurred for objects in which it had no interest when the obligations were assumed, and in regard to'which it had no voice. 3. That no contract relation ever existed between A. and the people of that territory. 4.

Held: That the repealing act did not become a law until its approval by the governor. 2.

Held: that the mandamus to compel the city to levy and collect the tax for the payment of the decree was process in execution, and that the court below rightfully exercised control over it in deciding that its order to levy a tax upon all the property of the city included the capital of merchants taxable under the Jaws of the State for general purposes.

<p>The court adheres to its ruling in Phipps v. Sedgwick {95 U. S. 3), that, where a husband causes real estate to be conveyed to his wife in fraud of his creditors, a judgment in personam for its value cannot be taken, at the suit of his assignee in bankruptcy, against her, nor, in case of her death, against her executors.</p>

Held: that the decree should be modified So as to further provide .that any balance of the moiety decreed against either vessel, which the libellants shall be unable to collect, shall be paid by the other, or by her stipulators, to the extent of her stipulated value beyond the moiety due from her. Appeals from tbe Circuit Court of the United States for the District of Maryland. The facts are stated in the

<p>Motion to reinstate a cause dismissed under the sixteenth rule.</p>

<p>1. A paper incorporated in the record, and certified to be a part thereof by the court below, if it has all the requisites of a bill of exceptions, will be considered here as such, although it be otherwise entitled.</p> <p>2. Where the burden of proof is on the plaintiff, and the evidence submitted to sustain the issue is such that a verdict in his favor would be set aside, the ' court is not bound to submit the case to the jury, but may direct them to find a verdict for the defendant.</p>

Held: that each libellant was entitled to a decree against each of the offending vessels for a moiety of his damages, and for interest and costs, with a proviso that if either of said vessels was unable to pay such moiety, then he should have a remedy over against the other vessel for any balance thereof which might remain unpaid. 2.

Held: that the decree was a final determination of the claim of the plaintiff below," and should have been admitted as matter of evidence, having the same force and effect in a court of the United States as in the courts of New York. Error to the Circuit Court of the United States for the District of Maryland.

Held: That the fact that all the parties knew that they were dealing with a trust-fund devoted by the donor to a specific purpose demanded the utmost good faith on the part of the company. 2. That, in view of the provision for the diversion of the fund, the gross inadequacy of the compensation, and the successful speculation at the expense of the rights of the public, the county is entitled to the relief prayed.

<p>Error to the Supreme Court of the State of Louisiana.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeals from the Circuit Court’ of tlie United States for the Eastern and the Western District of Pennsylvania.</p> <p>The bill in the first case was filed in the Circuit Court of the United States for the Eastern District of Pennsylvania, by William H. Seymour and Dayton S. Morgan, of New York, to restrain the respondents, James S. Marsh, Elisha C. Marsh, Charles C. Marsh, and John A. Grier, from infringing reissued letters-patent No. 72, dated May 7, 1864, and No. 1683, dated. May 31, 1864, for new and useful improvements in reaping-machines, and reissued letters No. 1682, dated May 31, 1864, for a new and useful improvement in harvesters, — all of which were granted to William H. Seymour and others, but of which he and Morgan are by assignment the owners. In the second case, the bill, which also alleges the infringement of the reissues above referred to, was filed by the same complainants in the Circuit Court for the Western District of Pennsylvania, the respondents being James S. Marsh, Charles C. Shorkley, Elisha Shorkley, and D. S. Kremer.</p> <p>In each case, there was a decree for the complainants, and the respondents appealed here.</p> <p>The remaining facts are stated in the opinion of the court.</p>

Motion to dismiss an appeal from the Circuit Court of the United States for the Southern District of Georgia. At its October Term, 1876, this court, in Stewart v. Salamon (94 U. S. 434), reversed the decree of the court below, and remanded the cause for further proceedings, in accordance with the Opinion then delivered.

Held: that they were, as printed papers, subject, under sect. 2504 of the Revised Statutes, to a duty of twenty-five per cent ad valorem. Error to the Circuit Court of the United States for the Southern District of New York.

Held: in a suit by such owner against the corporation, that he was entitled to a decree compelling it to replace the stock on its books in his name, issue a proper certificate to him, and pay him the dividends received on the stock after its unauthorized transfer, or to an alternative decree for the value of the stock, with the amount of the dividends. 2.

Held: That neither the Constitution nor the statutes of that State declare the name by which a county shall be sued. 2. That, if the action should have been brought against the county by its corporate name, the misdescription, if objected to, was, by the statutes of that State, amendable at the trial; but it furnishes no ground for reversing the judgment.

<p>The facts are stated in the opinion of the court.</p>

Held: that the increase of tax under that act did not apply to the tobacco so stamped, sold, and removed. Error to the Circuit Court of tbe United States for tbe Eastern District of Virginia. The facts are stated in tbe opinion of tbe court. Mr. Assistant-Attorney-Gieneral Smith for tbe plaintiff in error. Mr. W. P. Bur well, contra.

Held: that the instruction was erroneous. Error to the Circuit Court of tbe United States for the Western District of Tennessee. The facts are stated in the

This was an action of debt by George A. Ritter, a citizen of Missouri, against the city of Nauvoo, a corporation existing under the laws of Illinois, on four bonds and the coupons thereto attached, issued by that city in 1854, in part payment of its subscription to the capital stock of the Warsaw and Rockford Railroad Company.

In January, 1873, the appellant brought suit in the Court of Claims, under the Captured and Abandoned Property Act, to recover the proceeds of two hundred and eighty-three bales of cotton, alleged to have belonged to him, and to have been seized and taken from his possession in Savannah, in February, 1865, by the military forces of the United States, and to have been sold by the agent of the Treasury Department, and tbe proceeds paid into tbe treasury.

Held: That his action is, in the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, conclusive upon the parties. 2.

Held: that the seizure was made at-Castle Garden, and not on the pier or dock at Hoboken. 2. It being fully proved that the packages were so unladen, the court below did not err in directing a verdict condemning them for a violation of the fiftieth section of the act of March 2, 1799 ( 1 Stat. 665 ). Error to the Circuit Court of the United States for the Southern' District of New York.

Held: that a bond taken by the collector of the port of New York, under regulations established by the Secretary of the Treasury, from a shipper and two sureties, in double the value of the goods- shipped, to prevent such transportation and-use, comes within the reasonable security specified in said third section. 2. The right of the collector to refuse a clearance altogether included that to exact a bond.

Held: that the dismissal should have been without prejudice. Appeal from the Circuit Court of the United States for the Western District of Tennessee. The facts are stated in the

Mimmack v. United States, 97 U.S. 426 (1878), was a decision of the United States Supreme Court concerning the Appointments Clause.

Pepper, was a distiller within the seventh district in the State of Kentucky, and the surveyed capacity of his distillery.was 151 j^¡- bushels per day. During the months of May, June, July, and August, 1873, he produced spirits in excess of the surveyed capacity to the number of 2,261^ gallons, on which a tax was payable amounting in the aggregate to the sum of $1,582.86.

Held: That the court, by such service, acquired no jurisdiction over the person of A., and its judgment was void.- 2. That such substituted service, if ever sufficient for the purposes of jurisdiction, can only be made where the condition upon which it is permissible is shown to exist. 8.

Held: That the decree is correct. 2. That the former decree estopped the parties thereto from again litigating the questions thereby decided. Appeal from the Supreme Court of tbe District of Columbia. The facts are stated in the

Held: that the amendment was in conflict with the provision of the Constitution of the United States against impairing the obligation of contracts. 3.

Held: That the order became, upon its acceptance, and in the absence of any statutory proMbition, an equitable assignment pro tanto of the claim. 2. That, under the act of Feb. 26,1863 ( 10 Stat. 170 , re-enacted in sect. 3477, Rev. Stat.), the accepted order was void, and that D. took no interest in the claim, and acquired no lien upon the fund arising therefrom. Appear from the Supreme Court of the District of Columbia.

Held: That the title of the company attaching to those lands by the location of the road, followed by the construction thereof, took effect, by relation, as of the date of the said act of 1862, so as to cut off all intervening claimants, except in the cases where reservations were specially made in it and the amendatory act of 1864. 2.

Held: that the enforcement of the statute interfered with no right conferred by the letters-patent. Error to the Court of Appeals of the State of Kentucky. The facts are stated in the

Held: That the State court had no jurisdiction to try him for the offence, as he, at the time of committing it, was not amenable to the laws of Tennessee. 2.

Held: that under said act real property used for manufacturing purposes, although within the exemption granted by the act of the legislative assembly, became subject to taxation. Appeal from the Supreme Court of the District of Columbia.

<p>Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>The facts are stated in the opinion of the court.</p>

Held: that no material alterations introduced by such amendments could avail as against parties who had introduced other brakes prior thereto. 5.

Motion to dismiss a writ of error to the Circuit Court of the United States for the Western District of Michigan. The facts are stated in the opinion of the court.

This action, which was brought in the Court of Common Pleas of Dauphin County, Pennsylvania, was tried by the court upon the following case, stated in the nature of a special verdict.

Ebbob to the Supreme Court of California. This was a suit to charge the defendant, as trustee of certain land in California, and to compel him to transfer the title to the plaintiff. The District Court of the State, in which it was brought, rendered judgment for the defendant. The Supreme Court of the State affirmed it, and the plaintiff has brought the case here. The facts are sufficiently stated in the opinion.

Circuit Court of the United States for the Northern District of Ohio. Nov. 1, 1872, John Wood, assignee in bankruptcy of Philip E. Robertson, filed his petition in the District Court of the United States for the Northern District of Ohio, against Stephen L. Newcomb, to recover the value of certain goods ;old to the defendant by Robertson, May 6, 1872, within four nonths before the latter filed his petition in bankruptcy.

Eeeor to tbe Circuit Court of tbe United States - for tbe District of Louisiana. Tbis is an action by tbe United States against Bessie Elgee Gaussen,- executrix of John K. Elgee, deceased, wbo was one of tbe sureties on tbe official bond of Thomas Barrett, collector of tbe customs for the district of New Orleans, in tbe State of Louisiana.

Held: 1; That the said act, as a measure of legislation, can have no force in any court recognizing the Constitution of the United StateB as the supreme law of the land. 2. That it did not assume to confer upon *595 such commanders any greater authority than they, by the laws and usages of war, were entitled to exercise. 3.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>The facts are stated in the opinion of the court.</p>

The history of this litigation is substantially as follows: — The land, containing about two hundred acres, the proceeds of which are involved in this suit was conveyed in the year 1829, for the consideration of $6,000, by John Teague, its then owner, to F. W. Davie, of South Carolina, a brother of Allen Jones Davie.

Held: That the certificate was a bar to the suit. 2. That the motive of the court for granting it makes no part of the record, and should not have been recited therein. Error to the Circuit Court of the United States for the Middle District of Tennessee. The facts are stated in the

<p>1 Where the jurisdiction of a court of the United States depends upon the citizenship of the parties, such citizenship, and not simply their residence, must be shown by the record.</p> <p>2 The ruling in Railway Company v. Ramsey (22 Wall. 322), approved in Briges v. Sperry (95.U. S. 401), that such citizenship need not necessarily be averred in the pleadings, if it otherwise affirmatively appears by the record, does not apply to papers copied into the transcript which do not make a part of the record by bill of exceptions, or by an order of the court referring to them, or by some other mode recognized by law.</p> <p>8. The presumption that a case is without the jurisdiction of the Circuit Court, remains now as it was before the adoption of the Fourteenth Amendment to the Constitution of the United States.</p> <p>4. The defendant having made no objection in the court below to its jurisdiction, by reason of the non-averment of the citizenship of the plaintiff, this court, in reversing the judgment, grants leave to the latter to amend his declara tion in respect to his citizenship at the commencement of the suit, if it be such as to authorize that court to proceed with the trial.</p>

<p>After the passage of the act of July 17,1854 (10 Stat. 306), amendatory of the act of Sept. 27, 1850 (9 id. 496), commonly known as the Donation Act, a husband and wife, who, by reason of their residence and cultivation, were, under the latter act, entitled to a patent from the United States for land in Oregon, could, before receiving such patent, sell and convey the land, so as to cut off the rights of his or of her children or heirs, in case of his or her death before the patent was actually issued.</p>

Held: That nothing passed by the charter of the company but what was granted in express terms or by necessary intendment. 2.

<p>Error to the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>The facts are stated in the opinion of the court.</p>

Held: That said act was practically a confirmation of the doings of the board of public works of the District, touching the improvement of streets and roads, and a ratification of the assessments prepared under an act of said assembly of Aug. 10, 1871, as charges upon the adjoining property, and that it conferred authority upon the commissioners to revise and correct such assessments within thirty days after the passage…

<p>Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The facts are stated in the opinion of the court.</p>

Held: that the Constitution of 1870, as coustrued by the highest judicial authority in the State, required all property to be uniformly taxed; and hence the legislature could not, in 1875, bind the State not to tax the company otherwise than as that *698 section provides, upon the surrender by the company of its charter ex eruptions.