Volume 124 — United States Reports

Bill in Equity to restrain infringements of letters-patent. Decree dismissing the bill. Complainant appealed. 21 Eed. Rep. 811. The case is stated in the opinion of the court.

Assumpsit. Plea : Non assumpsit. Yerdict for defendant, and judgment on the verdict. Plaintiff sued out this writ, of error. The case is stated in the opinion of-the court.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>Bill in Equity. The complainant appealed from the final decree. The case is stated in the opinion of the court.</p>

Held: that neither one of the defendant’s machines above described infringed that claim, because neither one of those machines had conical rollers, nor any of the other mechanism of the plaintiff; that what the defendant did was not to divide the plaintiff’s conical feed-rollers into sections or parts, in such manner as to make the parts the equivalent' of the whole; but that the plaintiff’s machine gave the circular…

Held: that there was sufficient evidence of a verbal agreement between the parties for the sale of the securities at the price named; (2) that the delivery of the property by the plaintiff was not such a delivery of it to the defendant as to amount to a receipt and acceptance of it by him, satisfying the statute of frauds; and (3) that that inchoate and complete delivery was not made perfect by the subsequent acts of the…

Held: that mere errors in assessment should be corrected by proceedings which the law allows before such sale, or before the deed was finally made. This was an action to set aside a tax sale of lands in Iowa. The Federal question is stated in the

Bill in -Equity to restrain infringement of letters-patent; Decree for complainant. Respondent appealed. The case is stated in the opinion of the court.

Held: that the only questions open to review here . were, whether there was any error of law in the judgment, on the facts found by the referee; and that, as the case had not been tried by the Circuit Court on a filing of a waiver in writing of a trial by jury, this court could not review any exceptions to the admission or exclusion of evidence, or any exceptions to findings of fact by the referee, or to his refusal to…

At law : in the nature of ejectment. The land was in Nebraska.

Held: That no obligation rests upon the Postmaster General to readjust the salaries of postmasters oftener than once in two years; that such readjustment, when it takes place, establishes the amount of the salary prospectively for two years; but that a discretion rests with the Postmaster General to make a more frequent readjustment, when cases of hardship seem to require it. , Petition eor mandaMus.

This was a bill in equity, filed in the Circuit Court of the United States for the Western District of Louisiana on September 10, 1881/on behalf of Mary E. K. Boyd, wife of Frederick W. Boyd, by her son and next friend, James E. Boyd, citizens of Wisconsin, against William G. Wyly and Charles Egelly, of the parish of East Carroll, citizens of Louisiana, and to which by an amendment Frederick W. Boyd, of Wisconsin, was made an additional defendant as dative testamentary…

Held: That, taken in connection with all the facts proved, L.’s representation could not be regarded as fraudulently made; (2) That, the governing element in the transaction being that it was an exchange of several tracts of land between the parties, the contract was not to be construed by the strict rule which might govern its interpretation if it were an independent purchase to be paid for in money; •(<$) That, thus…

<p>ERROR TO THE SUPREME COURT OF THE DISTRICT 'OF COLUMBIA.</p> <p>MotioN to submit this cause under Rule 20. „ The motion was founded upon a stipulation entered into between the attorneys for the plaintiff and the defendant in person, in the court below, before trial there, the material clauses in which stipulation were as follows:</p> <p>“Said cause shall be heard upon the agreed statement of facts hereto annexed as a part hereof. . . . Said cause may be submitted to the court and heard and decided by the court (without any jury) upon said agreed statement of facts and . . . may be certified to the general term of this court . . . and- if not so certified an appeal may be taken by any party from the decision or judgment of the Circuit Court to said court in general term, and that in case of such appeal no bond shall be required . .- . and that either party to this cause may take an appeal or writ of error from' the decision of said court in general term to the Supreme Court of the United States, and that in that event said cause shall be heard and decided in the same manner by the Supreme Court of the United States. . . . That in the Supreme Court of the United States this cause shall be submitted to the court -without any oral argument, either side,- however, having the right to file a printed brief or briefs in the Supreme Court of the United States.”</p>

<p>Under the provision of the act of July 81, 1870, c. 240, 19 Stat. 121, “ that before any land granted to any railroad company by the United States shall be conveyed to such company, or any person entitled thereto under any of the acts incorporating or relating to such company, unless such company is exempted by law from the payment of such cost, there shall first be paid into the Treasury of the United States, the cost of surveying, selecting and conveying the same by the said company or persons in interest,” the New Orleans Pacific Railway Company, as the owner, by conveyance from the New Orleans, Baton Rouge and Vicksburg Railroad Company, of its interest in the land grant made to the latter company by § 22 of the act of March 3, 1871, c. 122, 1G Stat. 579, was bound to pay the cost of surveying the land, before receiving a patent for it, although such cost had been incurred and expended by the United States before March 3, 1871, the construction of no part of the road having been commenced before the expiration of the five years limited for the completion of the whole of it.</p>

Held: necessarily draws to itself everything properly incidental, even though it may bring into the court, for the adjudication of their rights, parties not otherwise subject to its jurisdiction ; and is ample to sanction the practice of permitting the constructive levy, by attaching creditors under state process, upon property in possession of a United States marshal by virtue of an attachment made under a process from a…

Assumpsit. Trial by the court without a jury, and judgment for plaintiff. Defendant sued out this writ of error. The case is stated in the opinion of the court.

<p>In this case the. court holds that the petition for the removal of the cause to the Circuit Court of the United States was presented too late.</p>

■APPEAL FEuU THE CIECUIT COUET OF THE. UNITED STATES FOE THE DISTRICT OF MINNESOTA.

Held: upon the evidence, that át the time of the transfer by Theodore H. Vetterlein of the policies in question for the benefit of his wife and children, neither Meurer nor Theodore J. Vetterlein had any valuable pecuniary interest in the assets of the former firms, and that the firm of Vetterlein & Co., composed of Theodore H. Vet-terlein and Bernhard T: .Vetterlein, held the entire beneficial interest in the policies…

<p>In a suit in equity the court, in determining the facts from the pleadings and proofs, the answer being under oath, applies the rule stated in Vigel v: Hopp, 104 U. S. 441.</p> <p>The fact alone that after a contract was entered into by a'railroad company for the construction of a tunnel, one of its employes who neither represented it in making the contract, nor had supervision and control of the work done under it, or in the ascertainment of the amount due the’ contractors, was, without the knowledge of the company, admitted by the contractors to a share in the profits, affords no ground in equity for setting aside an award between the contractors and the company settling the sum due from the company under the contract after its complete execution, and the judgment upon the award,; nor does the fact that the enlploye' was a material witness before the arbitrators in determining the sum awarded furnish such ground, when there is nothing in the case to show that he stated what he did not believe to he.true, and when the weight of the evidence shows that what he said was true.</p> <p>Under the circumstances of this case the court applies the rule stated in Atlantia Delaine Co. v. James, 94 U. S. 207, that the power .to cancel an executed contract “ ought not to be exercised except in a clear case, and never for an alleged fraud unless the fraud be made clearly to appear ; never for alleged false representations, unless their falsity is certainly proved, and unless the complainant has been deceived and injured by them.”</p>

<p>APPEAL FROM THE ■ SUPREME COURT OF THE DISTRICT OF COLUMBIA.</p> <p>This case is the one referred to in the last clause of the opinion of this court in Mackall v. Richards, 112 U. S. 369, 376.</p> <p>In the year 1859, Brooke Mackall, sen., made a verbal gift to his son, Brooke Mackall, jr., of lot 7, in square 223, in the city of Washington; the father, at the time, promising that he -would thereafter make a formal conveyance of the property. The son, relying upon such promise, took possession of the lot and commenced the erection of a building thereon, at the southwest corner of New York Avenue and 14th Street. The lot was of irregular shape; its line on 14th Street being about 152 feet long, and on New York Avenue about 160 feet.</p> <p>The marshal of the District of Columbia advertised, in 1869, that in virtue of three writs of fieri facias and-one writ of venditioni exponas, issued from the clerk’s office of the Supreme Court of the District, he would, on a named day, sell at public sale, for cash, “ all defendant’s right, title, claim, and interest in and to part of lot 7, in square 223, in the city of Washington, D. ,0., beginning at the northeast corner of said square and running thence south 44 feet; thence west to the west end of the lot; thence in a northerly direction with the west line thereof to the north line of said lot; thence with said north line to the place of beginning, together with all and singular the improvements thereon, seized and levied upon as the property of Brooke Mackall, jr., and will be sold to satisfy executions Nos. 3477, 3478, 4117, and 3708, in favor of Matthew G. Emery, George H. Plant, A. & T. E. Richards, and Owen & Wilson.”</p> <p>Before the sale took place, Mackall, jr., brought a suit in equity against said execution creditors and the marshal. He stated in his bill that, although he was equitably entitled to the whole of lot 7, under the before mentioned gift of his father, he had not received a conveyance therefor, and consequently did not hold the legal title. Referring to the description of the property as given in the levies and in the ádvertisement of sale, he alleged that it was both an indefinite and an impossible description, and that a sale in the mode proposed would prejudice his rights in the remainder of the lot. He therefore prayed that the sale be enjoined. The execution creditors severally answered, each averring that the legal title to the property was in Mackall, jr., in virtue of a sale, in 1862, to one Hyde for taxes, assessed upon it by the corporation of Washington, and that Mackall, jr., as assignee of the purchaser, bad received and then held a tax deed for the lot, dated October 6, 1865.</p> <p>It does not appear from the record that any motion for an injunction was made, or that an injunction was issued, or that any further steps were taken, in that cause, beyond the filing of the bill ana answer. The sale under the before mentioned executions, levies, and advertisement, occurred June 13, 1870. The present appellant became the purchaser at the sum of $2500, all of which, except $646.89, was required to pay judgments prior in' time to that recovered by A. & T. E. Eichards. On the 7th of October, 1870, he received a deed containing the following description’Of the property conveyed: “Part of-■ lot 7 in square 223, beginning at the northeast corner of' square and running thence south 44 feet; thence westerly to the west end of the lot; thence in a northerly direction with the west line thereof to the- north line of said lot; thence with said north line to the beginning.” This deed was duly recorded February 3, 1871. Eichards took possession under his. purchase, and expended large sums upon the property in order to make it available.</p> <p>On the 2d of April, 1873, Brooke Mackall, sen., (his wife uniting and relinquishing her contingent right of dower,) made a conveyance of lot 7, in square 223, to Joseph B. Hill in trust, to permit the grantor to hold, occupy, and enjoy the premises, with the 'rents, issues,- and profits thereof, and to convey them to such persons, and upon such terms, as the grantor niight in writing direct, and with authority in the latter to encumber the premises or any part thereof as he or his heirs and assigns might direct. - This deed was recorded September 29, 1873. "When it was made, Mackall, sen., knew that his son held the tax deed of 1865; indeed, the tax deed was made to the son by the direction or procurement of the father.</p> <p>On the 30th of January, 1874, by a deed, in which Brooke Mackall, sen., and Joseph B. Hill, individually and as trustee,united as grantors, lot 7, with all the buildings and improvements thereon, and all the rights appertaining thereto, was conveyed to Leonard ^Mackall, in trust, to hold the same for the use and benefit of Brooke Mackall, sen., “ and subject to his absolute control and disposal, and to sell and dispose of the same as the said Brooke Mackall, sen., may in writing direct and require.” This deed, for some reason, was not recorded until June 3, 1878.</p> <p>By deed of February 27, 1880, Brooke Mackall, sen., conveyed the same lot, including his interest in a pending claim for mesne profits against Alfred ".Richards, together with all the buildings and improvements thereon, and with all rights in law or in equity appertaining thereto, to Brooke Mackall, jr., his heirs and assigns forever,-for their sole use and benefit.</p> <p>Mackall, sen., died March 7, 1880.</p> <p>The present suit was brought by Brooke Mackall, jr., on the 11th day of April, 1882, — nearly twelve years after Richards’ purchase, — for the purpose of having the sale of June 13, 1870, the conveyance of October 7, 1870, and all transfers depending thereon, adjudged to be void and of no effect. The sale and conveyance are attacked as invalid upon the following grounds: The price paid for it was grossly inadequate; the executions on which the sale was made were issued without authority, other previous executions not having been returned ; the judgments on which the executions were issued were personal judgments only, while the executions directed the sale of specific property described therein; the executions did not sufficiently describe the nature of the debtor’s interest in the property, whether legal, equitable or otherwise, nor define its boundaries, so that it could be identified, nor conform to the description of the property as given in the declarations; the court in two of - the cases was without jurisdiction to render any other than personal judgments, the proper tribunal for the enforcement of mechanics’ liens being a court of equity; that Brooke Mackall, sen., held the legal title to the property, and was not a party to any of the said suits ; that a sale of an equitable interest in real estate could not be made at law, whether for the enforcement of a mechanic’s lien or otherwise; that at the time of the sale, Mackall, jr., had no interest in the property except that arising from a verbal promise to convey and his action thereon; that the alleged levies and sale were made long after the return day of the writs; that the executions were issued and delivered to D. S. Gooding, who was then the marshal of the District of Columbia, whereas the advertisement, sale and conveyance purport to have been made by Alexander Sharp, who was marshal at the time of sale; that the advertisement of sale does not sufficiently describe the property, nor the nature of the interest to be sold, or agree with the other proceedings; and that the conveyance by the marshal does not conform to any of the proceedings in said causes.</p> <p>The court below, in special term, dismissed the bill. But that decree was reversed in general term, the sale and conveyance by the marshal to Biehards, and all transfers depending thereon, being set aside as void and of no effect. As between the parties to the suit, the appellee was declared to be the owner of the property, with a right to have the legal title conveyed to him, upon his paying appellant’s claim as judgment creditor, as well as his disbursements in connection with said premises. The ground upon which the court below, in general term, proceeded, was, that “ on account of the patent, and palpable ambiguity and uncertainty in the description of the property, both in the advertisement and in the marshal’s deed,” the sale could not be sustained. MaoTcall v. Biehards, 3 Mackey, 271.</p>

Whitney v. Robertson, 124 U.S. 190 (1888), was a United States Supreme Court case in which the court held that a treaty and a federal statute are equivalent; if two are in conflict, the one last in time will control, provided the stipulation of the treaty on the subject is self-executing.

This was an action to recover back duties alleged to have been illegally exacted. It was argued with Whitney v. Robertson, ante, 190.

<p>The proceeding, authorized hy the statutes of Colorado, for condemning land to public use for school purposes, is a suit at law, within the meaning of the Constitution of the United States and the acts of Congress conferring jurisdiction upon the courts of the United States, which maybe removedinto a Circuit Court of the United States from a state court.</p>

ORIGINAL. This was a petition for a writ of habeas corpus, in behalf of the mayor and eleven members of the city council of the city of Lincoln in the State of Nebraska, detained and imprisoned in the jail at Omaha in that ■ state by the marshal of. the United States for the .District of Nebraska, under an order of attachment for contempt, made by the Circuit Court of the United States for that district, under the following circumstances : On September 24, 1887, Albert F.…

Held: following numerous decisions to that effeet, that the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered.

<p>The entire administration of the system devised by Congress for the collection of -captured and abandoned property during the war was committed by the acts regulating .it to the Secretary of the Treasury, subject to th,e President’s approval of the rules and regulations relating thereto prescribed by him, and with no other restriction than that the expenses charged iipon the proceeds of sales be proper and necessary and be approved by him1; áñd hfs approval of an account of expenses incurred on account of -any particu^i-lot of such property made before the passage of the joint resolution cbtMarch 31', 1868T, T5 Stat. 251, is conclusive evidence that they'' wore propeiyaud necessary, unless it appears that their allowance was procured by fraud, or that they were incurred in violation of an act of Congress or of public policy.</p> <p>The joint resolution of Congress of March 31, 1868, 15 Stat. 251, affords evidence that the practice of the Secretary of the Treasury prior to that date not to cover into the Treasury the sums received from the sale of captured and abandoned property, but, to retain them in the hands of the Treasurer in order to pay them out from time to time on the order of the Secretary, was known to Congress, and was acquiesced in by it, as to what had been previously done; and all this brings the practice within the well settled rule that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.</p> <p>Settled accounts in the Treasury Department, where the United States have acted on the settlement, and paid the balance therein found due, cannot be opened or set aside years afterwards merely because some of the prescribed steps in the accounting, which it was the duty of a head of a department to see had been taken, had been in fact omitted; or on account of technical irregularities, when the remecty of the party against the United States is barred by the statute of limitation, and the remedies of the United States are intact, owing to its not being subject to an act of limitation.</p>

<p>On appeal by the United States from a judgment of the Court of Claims against them for less than three thousand dollars, rendered pro forma, against the opinion of that court, and for the purpose of an appeal, this court, upon objection taken in behalf of the United States to the irregularity of the actions of the court below, reverses the judgment, and remands the case for further proceedings according to law.</p>

ERRO» TO THE GIROUIT COURT OR THE UNITED STATES EOR THE WESTERN DISTRICT OW TEXAS. Trespass to try title. The following is the case, as stated by the court.

Held: that he was entitled to the additional pay provided for by Rev. Stat. § 1613. This was an appeal from a judgment against the United States in the Court of Claims. Mr. Attorney General, and Mr. Felix Brmvnigan for appellant. Mr. James F. Padgett for appellee. Me.

United States v. Mouat, 124 U.S. 303 (1888), was a case before the United States Supreme Court in which the court held that only those persons appointed by the President, the courts of law, or the head of a department are Officers of the United States. All other persons are mere employees.

This was an appeal from a judgment rendered against the United Spates in the Court of Claims.

<p>APPEAÉ FROM THE COURT OF CLAIMS.</p> <p>This was an appeal from the Court of from a judgment against the United States for the sum of $10,130.31. The case is stated in the opinion of the court.</p>

Held: that the District had an equity which entitled it to have the $22,700 credited on J. M.’s notes in the hands of the trustee, and a further equity on payment to the trustee of the balance of the agreed price, to have those notes cancelled, and to have a conveyance of title from the trustee, discharged of all lien on account of unpaid purchase money, and that no resale would be ordered until there should be a default…

Held: that the bank was not liable. At law. The case is stated in the

<p>The confiscation act of July 17, 1862, 12 Stat. 589, c. 195, construed in connection with ’the joint resolution of the same day explanatory of it, 12 Stat. 627, makes no disposition of the confiscated property after the death- of the owner, hut leaves it to devolve to his heirs according to the lex rei sitce, and those heirs utke qua heirs, an4 not by donation from . the government. .</p> <p>A mortgagee, in Louisiana, under an act containing the pact de non alienando, can proceed against the mortgagor after the latter’s expropriation through confiscation proceedings, as though he had never been divested of his title.</p> <p>The holder of a mortgage upon real estate in Louisiana ordered to be sold under a decree of confiscation may acquire the life interest of the mortgagor at the sale, and may possess and enjoy that title during the lifetime of the mortgagor without extinguishing either the debt or the security, by reason of confusion as provided by the code of that State.</p> <p>The heirs of a person, whose property in Louisiana was sold under a decree of confiscation, succeed after his death by inheritance from him, and, being in privity with him, are bound equally with him by proceedings against him on a mortgage containing the pact de non alionando.</p> <p>If a mortgage debtor in Louisiana, in a suit to foreclose a mortgage containing the pact de. non alienando, waives the benefit of prescript l;n, those who take from him are estopped from pressing it as effectually as he is estopped.</p>

ORIGINAL. in Sherman v. Grinnell, 123 U. S. 679, after the announcement' of that decision presented to this court his petition as follows: To the Honorable, the Justices of the Supreme Cov/rt of the United States: The petition of Eoger M. Sherman respectfully represents: On the 28th day of October, 1885, in the city court of New York, in the Southern District of New York, ap action was commenced by the service of a summons and complaint, by Irving Grinnell and George S.…

<p>In accordance with a stipulation of the parties the judgment of the CQurt below is reversed and a mandate issued.</p>

ORIGINAL. moved the court for leave to file a petition, for a writ of mandamus to •the Supreme Court of the District of Columbia-to compel the allowance of an appeal in accordance with the prayer of the petitioners; whereupon, the Chief Justice announced that an application had been made to him for the allowance of an appeal in the cause, which application he now refers to the court for its consideration, and directed that counsel for the moving parties file a brief in…

Held: that this was error, as the facts thus, offered to be proved, if established, would force defendant from his position of *375 intruder without title, and compel him to show prior title to the premises in himself, or to surrender them to plaintiff.

<p>The insolvency of the vendee in a contract for the sale and future delivery of personal property in instalments, payment to be made in notes of the vendee as each instalment is delivered, is sufficient to justify the vendor for refusing to continue the delivery, unless payment be made in cash; but it does not absolve him from offering to deliver the property in performance of the contract if he intends to hold the purchasing party to it: he cannot insist upon damages for non-performance by the insolvent without showing performance on his own part, or an offer to perform, with ability to make the offer good.</p> <p>A check upon a bank in the usual form, not accepted or certified by its cashier to be good, does not constitute an equitable assignment of money to the credit of the holder, but "is simply an order which may be countermanded,and whose payment may be forbidden by the drawer at any time before it is actually cashed.</p>

The appellant brought suit against the United States in the Court of Claims, where judgment was entered against his claim. The case is stated in the opinion of the- court.

Held: that, unless it affirmatively appears by the record that the -motion for a new trial was filed within four days after trial, this court will not consider the' question it presents. Welsh v. City of St. Louis, 73 Missouri, 71; Moran v. January, 52 Missouri, 523, and cases cited.

<p>"ERROR "TO THE SUPREME COURT OF THE STATE OF MISSOURI.</p> <p>The case is stated,in the opinion of the court.</p>

Held: that there was no error 'in the charge. Bxpert testimony as to whether, under the circumstances, it was the exercise of good seamanship and prudence to attempt to have the vessel ' towed to Cleveland, was competent. The question of the competency of the particular witnesses to testify as experts, considered.

Held: that under § 3011 of the Revised Statutes, the action would not.lie, because the payment was not made to obtain possession of the merchandise. This- was an action against a collector to recover an alleged excess of duties. Judgment for defendant. Plaintiff sued out this writ of error. The case is stated in the opinion of the coiirt. Mr. Charles Levi Woodbury for plaintiffs in error.

This was an action to recover back an alleged excess of duties demanded and paid in the revenue district of Boston and Charlestown. Judgment for plaintiff, to review which defendant sued out this writ of error. The case is stated in the opinion of the court.

Held: that, under § 21 of the act óf June 22, 1874 ( 18 Stat. 190 ) the first liquidation of duties was final and conclusive against the United States, as it did not appear that the second liquidation was based on any increase of the value of the merchandise, or that the disallowance of the discount and the change of the rate of duty depended on such increase, or were involved-in any proper action of. the local appraiser…

This was an action to recover upon two county warrants issued by defendant. Judgment for defendant. Plaintiff sued out this writ of error. The case L stated in the opinion of the court.

Held: That the statute of Alabama was not, in its nature, a regulation of commerce, even when applied to such a case as this; ■ (2) That it was an act of legislation within the scope of the powers reserved to the States, to regulate the relative rights and duties of persons within their respective territorial jurisdictions, being intended to operate so as to secure safety, of persons and property for the public; (3) That…

The case, as stated by the court, was as follows: This case comes before us from the Circuit - Court for the Southern District of New York on a certificate of division of opinion between the Judges.

<p>The signing of a citation returnable to the proper term of this court, hut without the acceptance of security, nevertheless constitutes an allowance of appeal which enables this court to take jurisdiction, and to afford the appellants an opportunity to furnish the requisite security here, before peremptorily dismissing .the case.</p>

Held: that the motion should be granted unless appellant, before a day fixed by the order, should file a bond with the clerk of this court, with sureties to the satisfaction of the Justice allotted to the Circuit. Brown v. McConnell, ante, 489, followed. MotioN to dismiss. The case is stated in the

<p>APPEAL PROM THE SUPKEME COURT OF THE TERRITORY OF WASHINGTON.</p> <p>This was an action for the possession of real estate. Judgment for defendant. Plaintiff appealed. The case is stated in the opinion of the court.</p>

Held: for the reasons given by the Court of Claims, that the judgment of that court awarding the contract price for the work is affirmed. The case is stated iu the opinion of the cotirt. Mr. Assistant Attorney General Howard for appellant. Mr. Attorney General was with him on the brief. Mr. Thomas Hughes and Mr. Woodbury Blavr for appellee.

This was an action of assumpsit, brought April 3, 1882, by Orr and Lindsley a'gainst Hopkins in a district court of the Territory of New Mexico. The declaration contained a special count on a promissory note for $1314.65, made by the defendant on October 1, 1881; and the common counts for the like sum due on that day for goods sold, for money lent, for money paid, and for money had and received. The plaintiffs filed with their declaration the following note: “ $1314.65.

Held: was $40,000, and the bonds, without interest, which had been running ten years at eight per cent per annum, amounted to $192,000. As the bonds were state bonds, the mere fact that no interest had ever been paid furnished the strongest presumptive evidence that they were dishonored. The interest • alone, if collected, would much more than pay the debt for which the bonds were held.

<p>The case is dismissed for want of jurisdiction as the record fails to show, expressly or by implication, that any right, title, privilege, or immunity under the Constitution or laws of the United States was specially set up or claimed in either of the courts below.</p> <p>The jurisdiction of this court under Rev. Stat. § 709, for the review of the decision of the highest court of a State is not dependent upon the citizenship of the parties.</p>

The court stated the case as follows: This case comes from the Circuit Court for the Southern .District of New York, on a certificate of division of opinion between its judges. The defendant was a clerk in the office of the collector of customs for the collection district of the city of New York, and in 1886 was indicted for the unlawful conversion to his own use of public money, an offence designated in the Revised Statutes as embezzlement of' such money.

<p>APPEAL PROM THE CIRCtJIT COURT OP THE" UNITED STATES POR THE NORTHERN DISTRICT OP ILLINOIS.</p> <p>This was an appeal from a decree of the Circuit .Court of the United States for tbe Northern District of Illinois, dismissing on demurrer the bill of the .¿Etna Life Insurance Company, the present appellant.</p> <p>The substance of the bill was that the complainant is the owner of fifteen bonds, of one thousand dollars each, issued by the township of Middleport, in the State of Illinois, dated February 20, 1871, and delivered to the Chicago, Danville and Yineennes Railroad Company. These bonds were payable to bearer, and were bought of the railroad company by the complainant, who paid value for them.</p> <p>The bill recited that this railroad company was incorporated . • in 1865 under the laws of the State of Illinois, with power to , construct a railroad from a point in Lawrence County, by way of Danville, to the city of Chicago; that an act of the legislature- of that Staté, passed March 7, 1867, authorized cities, towns, or townships, lying within certain limits, to appropriate moneys and levy a tax to aid the construction of said road; • and “ that said act authorized all incorporated towns and cities and towns acting under township organization, lying wholly or in part within twenty miles of the east line of >the State of Illinois, and also between the city of Chicago and the southern boundary of Lawrence County, in 'said State, to appropriate such sums of money as they should deem.proper to the said Chicago, Danville and Yincennes Railroad Company, to aid it in the construction of its road,'to be paid as soon as the track of said road should be laid and constructed through such cities, towns, or townships : Provided, however, that a proposi-tion to make such appropriation should first be submitted to a vote of the legal voters of such cities, towns, or townships at a regular”, annual, or special meeting, of which at least ten days’ previous notice should be given; and also provided, that a vote, should be taken on such proposition, by ballot, at the usual place of election, and that a majority of the votes cast should be in favor of the proposition ; and your orator further avers that said act authorized and required the authorities of such cities, towns, and townships to levy and collect such taxes .and to make such other provisions as might be necessary and proper for the prompt payment of such appropriations so made.”</p> <p>It was then alleged, that, on the. 8th day of June, 1861, after due publication of notice according to law,, a meeting of the legal voters of, said town of Middleport was held, at which they cast their votes by ballot upon the proposition to levy and collect a.tax of $15,000 upon the taxable property of the inhabitants of the town to aid in the construction of said railroad, provided Watseka, a city in the county of Iroquois, situated in or near the south line of said town, should be made a point in said road; that it appeared, on counting the votes, that 323 were in- favor of and. 68 were against such tax, and that thereupon the proposition was duly declared carried, the proceedings relating to the meeting and vote duly .attested by the town clerk and the moderator of the meeting, and by said clerk duly recorded in the town records.</p> <p>.. The bill further averred that the railroad company accepted this vote and appropriation of the township, and, relying upon such vote and the good faith of said town, accepted the condition of the appropriation, and constructed and completed its track through said town; that on the 10th day of February, 1871, the board of town auditors adopted a resolution, of which the following is a copy:</p> <p>“ "Whereas the township of Middleport did, on the 8th day of 'June, 1867, vote aid to the Chicago, Danville & Yincennes Railroad Company to the amount of fifteen thousand dollars, and it appearing that said townshin is unable to pay such amount in money:</p> <p>“ Therefore resolved by the board of auditors of said township that bonds issue to said Chicago, Danville & Yincennes Railroad Company to the amount of fifteen thousand dollars, togeaier with a sufficient amount to cover'"the discount necessary on said bonds in negotiating the same, to wit, one thousand five hundred dollars, said bonds to be dated February 20th, a.d. 1871, and to bear interest at the rate of ten per cent from date per annum.”</p> <p>In pursuance of this resolution it was alleged, that, on the 24th day of March, 1871, the supervisor and town clerk of 'Middleport executed the fifteen bonds which are the subject of this suit; that “ the said bonds were numbered one to fifteen, inclusive, and were delivered to the said railroad company, upon the fulfilment of the conditions of said vote, in payment of ninety cents on the dollar of the appropriation made to said company by said vote, both parties believing that said bonds were fully authorized by law and were legal, valid, and binding on said town, and also believing them to be legal evidences of the debt in favor of said company incurred by said town in voting said appropriation.”</p> <p>Tfc was then alleged, that, on or about the 26th day of June, 1876, the town of Middleport, which up to that time had paid the interest upon the bonds, filed a bill in equity in the Circuit Court for the county of Iroquois against the complainant corporation as the holder of said bonds, and certain other persons, “ alleging, in substance, the making and issuing of said bonds, as herein stated, that the same were delivered to your orator, and that your orator was the holder thereof, and that the same were made and issued without authority of law and - were invalid, and praying the court so to decree and to enjoin your orator from collecting the same and for other relief, as. by the record in the cause, upon reference thereto, will fully appear.”</p> <p>It was averred that the Circuit Court dismissed the bill, but • that upon appeal to the Supreme Court of Illinois the decree . dismissing it was reversed, that court holding that these bonds were void as issued without -authority of law; and the case was remanded to said Circuit Court for further proceedings'; whereupon it passed a decree in conformity with the opinion of said Supreme Court, adjudging the bonds void, and enjoined their collection.</p> <p>The bill then charged that said-.Supreme Court, while holding the bonds to be void, did not deny, but impliedly admitted, the validity of the appropriation by the town, and insisted that • by the issue and delivery of said bonds to the railroad company, and their sale by that company to the present complainant, it was thereby subrogated to the rights of action which that company would have on the contract evidenced by the vote of the town, and the-acceptance and fulfilment of the contract by the railroad company. It was also alleged that no part of the principal sum named in the bonds, or any part of said appropriation, had ever been paid, but that, on the contrary, the town- of Middleport denied all liability therefor; that ever since the purchase of said bonds “the complainant had continued to hold, and then held, the same, and had been and then wTas the holder of all rights which the railroad company or its assigns had against said town by reason of the premises.</p> <p>A decree was then prayed for that the town of Middleport should pay to complainant the amount found due, and should without delay levy and collect all taxes necessary for such pay-. ment; also, that the .court would enforce the rights of complainant by writs of mandamus, and such other and further orders and decrees according to the course of equity as should be necessary and proper; and also prayed that W. H. Leyford, in whose hands as receiver the Chicago, Danville & Yincennes 'Railroad Company had been placed by the court, it being insolvent, might be made a party defendant thereto.</p> <p>To this bill the defendant demurred, and assigned the following as causes for demurrer:</p> <p>First. That said bill does not contain any matter of equity whereon this court can ground any decree or give- complainant any relief as against this respondent.</p> <p>Second. Bill.shows it is exhibited against respondent and-the Chicago, Danville and Yincennes Bailroad Company and "William Leyford, its receiver,-as respondents thereto, and the facts set forth therein show the same relief cannot be granted against all of said respondents; and fails to state facts showing respondents jointly liable, but stated facts which shoAv this respondent, if liable at all, is not jointly liable or in any manner connected with the others, and the bill is multifarious.</p> <p>Third. Fails to show any written agreement on which suit is brought that would bind respondent, and fails to state facts showing a cause of action exists against respondent that arose within five years last past before bringing of suit.</p> <p>Fourth. Fails to show any written agreement on which suit is brought binding on respondent on which has arisen a cause of action within the last ten years prior tp bringing this suit.</p> <p>Fifth. Fails to set forth facts showing an excuse, for the great delay in bringing suit which is shown on face of bill, and equity will not relieve against laches.</p> <p>Sixth. Bill contains many blanks of dates and names and nothing on face of bill from which facts can be obtained to fill same.</p> <p>The court below sustained the demurrer, and dismissed the bill, from which judgment complainant appealed.</p> <p>I. The contracts granting aid were completed, as binding obligations on the towns in favor of thé railroad company, at tbe polls. CJvmquy v. People, 78 Illinois, 570, 576; Chicago & Iowa Railroad Co. v. PinJeney, 74 Illinois, 277; Fairfield v. Gallatin County, 100.11. S. 47 ; overruling Concord, y. Savings ■Banle, 92 U. S. 625. The fact that there were conditions in the contract, as that the railroad should be built, &c., made it no less binding. The railroad company performed the conditions about July, 1871. This made the contracts absolute on the part of the town to levy, collect and pay over to the railroad company the taxes voted. These contracts have never been changed. “The constitution (of Illinois, 1870) saved whatever rights were acquired by the company under that vote ; for it left untouched the authority of the township to complete the donation to the company according to the terms upon which it was voted.” Concord v. Robinson, 121 U. S. 165, 171.</p> <p>The issuing of void bonds by the officers of the town to represent or fund these contracts, and the acceptance of such bonds by the railroad company, and its negotiation of them to holders fGr v"iv>3, did-not extinguish these valid obligations of. the towns. Marsh v. Fulton County, 10 Wall. 676 ; Louisiana-v. Wood,' 102 IT. S. 294; Paul v. Kenosha, 22 Wisconsin, 256; S. G. 94 Am. Dec. 598; Curtis v. Leavitt, 15 N. Y. 9; Nelson v. Mayor, 63 N. T. 535, 544; Anthony v. Jasper Co., 101 IT. S. 693. But having sold the bonds and received the-money on them it would be inequitable for the railroad company to still enforce the contracts for its own benefit. It therefore holds them as trustee for our benefit. By buying the bonds supposed . to represent them we became in equity entitled to the benefit of them. Louisiana v. Wood, 102 IT. S. 294, 298.</p> <p>A purchaser will ordinarily be subrogated to all the rights of his vendor in the property, even though they are not expressly conveyed to him. Sheldon on Subrogation, § 34.</p> <p>II. The equitable assignee of a chose in action has the right to go into a court of equity to have his interest therein establisbed; and when so1 Established he will have the right to complete relief in the same action by decree of specific performance of the contract. Mechanics Bank of Alexandria v. Seton, 1 Pet. 299; Fortiscue v. Barnett, 3 Myl. & K. 36; Ex pa/rte Pye, 18 Yes.-140. In enforcing specific performance the Supreme Court of the United States regards the technical distinction, as to whether the contract relates to realty or personalty, much less than it'does the' other question; whether the plaintiff is entitled to other or better relief than the law can give him. Meehcmics Bank of Alexandria v. Seton, supra.</p> <p>Our remedy at ■ law to be subrogated to the rights of the railroad company on these contracts with the towns, is very far from being clear and perfect. The practice in Illinois, which in this .case, being the ancient practice, is authority for our procedure, requires us to go into equity for subrogation. Courts of law there know nothing of this relief and cannot administer it. Meyer v. Mintonye, 106 Ill. 414. This is the general rule wherever the jurisdictions are separate. Springer’s Admr. v. Springer, 43-, Penn. .St». 518; Mosier’s Appeal, 56 Penn. St. 76; Eaton v. hasty, 6 Nebraska, 419.</p> <p>Even in those States where the law, following equity, has come to administer this relief more or less completely it appears that equity still retains its jurisdiction. Sheldon on Subrogation; ch. 1, §§ 1, 4. Indeed it is the rule that a United States court of equity will not be ousted of its ancient jurisdiction because the state courts of law como to apply equity principles more or less thoroughly. Payne v. Ilook, 7 Wall. 425; Borer v. Ohapman, 119 U. S. 587.</p> <p>The cases at bar then belong to that class where the plaintiff has an independent equity, the right to subrogation. If the action had been by the railroad company against the towns on their contracts, it must have been at law, of course. But wre have no legal title to those contracts. They never have' been assigned to us. Had they been perhaps we might have brought ' an action at law on them against the towns in the name of tho railroad company, or its receiver; though this is doubtful. But clearly now our remedy to get the benefit of those contracts is wholly and purely equitable.</p> <p>Had these dioses in action been actually- assigned to us by the railroad company, our right to them would have rested in such contract of assignment. Now it rests on the fact that we bought certain bonds, supposed at the time to represent these contracts, but which afterwards turned out .void. The equity of subrogation arises where plaintiff’s right rests not upon contract, but upon a state of facts which give it. In such cases the proper remedy is not at law but in equity. Hosier's Appeal, 56 Penn. St. 76; Eaton v. Ilasty, 6 Nebraska, 419.</p> <p>We stand like a purchaser of land at execution sale which has turned out invalid. Such facts subrogate the purchase to the lien of the original judgment. McIIcmy v. Schenk, 88 Illinois, 357.</p> <p>ITT. But we are told that we have no right to this subrogation because in buying the bonds we made a mistake not of fact but of law, and are therefore chargeable with notice of the invalidity of the bonds. But how does this affect our right to subrogation ? “ Circumstances may exist which will give the holder of bonds an equitable right to recover from the municipality the money which they represent, though he cannot enforce their payment or put them on the market as commercial paper.” Anthony v. Oounty of Jasper, 101' IT. S. 693, 697.</p> <p>This was said in a case where the bonds were held void because issued by a fraud which amounted to forgery, and the purchaser was held chargeable with notice of the fraud. If we were suing the railroad company on an implied warranty of the validity of the bonds, this question of implied notice of their invalidity might cut some figure. But in equity, notwithstanding the notice of caveat emptor under which he purchased, a purchaser is subrogated to the lien of the original judgment. So implied notice of defects in the thing purchased has nothing to do with the purchaser’s right to be subrogated to all that fairly and equitably should go with his purchase to recompense him, if it turns out a nullity. And whether the mistake of the purchaser is one of law or fact, he has the right to be subrogated to everything that equitably belongs with bis purchase. Gause v. Clarksville., 5 Dillon, 165, 180: Wood v. Louisiana, 5 Dillon, 122, 124; Shirk v. Pulaski Gotmty, 4 Dillon, 209, 214; School District v. Lombard, 2 Dillon, 493. In' Louisiana Ar. Wood, supra, it is settled that the purchaser of void bonds, though chargeable with notice of their invalidity, is subrogated to the seller’s rights on the consideration for which they were issued against the municipality issuing them.</p> <p>But further : Whether the bonds were valid or not was, at the time of the purchase, a mixed question of law and fact. The question as to whether these officers had in fact, if necessary under the law, been expressly authorized by the voters to issue the bonds, was a question of fact.. The people having voted the aid, the supervisors being the proper officers to decide-, whether the requirements authorizing the issue of bonds had been complied with (see People v. Oline, 63 Illinois, 394), and they issuing bonds reciting as these do that they were issued in accordance with the acts.of the legislature and the vote of the electors of the towns, we- had the right to assume that all facts necessary to give the supervisors authority to issue the bonds had been complied with. Pomp-ton v. Cooper Union, 101 U. S. 196.</p> <p>The towns cannot complain that we are subrogated to the rights of the railroad company- under these contracts ; for we must bear in mind that ip this case the liability of the town was fixed by the election, as held in Ohinqwy, v. People, and Fairfield v. Gallatin Go., supra. It is liable to somebody, either the railroad company or to us as the ' equitable assignee or successor of that company. It makes no difference to the town to which it is liable. We bring it and the company into a court of equity asking to have the liability declared and established in us by subrogation. If the railroad company makes no objection to this, certainly the town cannot demur.</p> <p>IY. Thei’e is no multifariousness in the’relief asked. (It can all be granted in one decree. A decree subrogating us to the railroad company’s rights under its contracts' with the towns and Ordering the towns to perform'that contract fóroür benefit, is certainly a very simple matter: '■' ■</p> <p>Y. But defendant’s counsel'telkus that we are'noiv barred-from our equity because we did not set it up - in the former case, the one finally disposed of by the decision of the Illinois Supreme Court in Middleport v. JEtna Life Ins. Co-., 82 Illinois, 562. In answer to this it is sufficient to say: 1st: We did not know at that time that we had' any such equity; we could not know about that until the final decision of that case,' supposing as we did all through the case that the bonds were valid. 2d. We could not have set up this equity in that suit even had we mistrusted that we possessed it, for that was a bill by the town to invalidate the bonds• because irregularly issued.</p> <p>YI. But defendant’s counsel tell us that though our equity were valid and not barred by failure to set it up in the former case, Middleport v. AEtna Ins. Co., yet it is now stale and barred by the statute of limitations. It is not stale unless it is barred by the statute. Mere delay alone short of the period fixed as a bar by the statute of limitations will not preclude the assertion of an equitable right. It is only .when by delay and neglect to- assert a right that the adverse party is lulled into doing that which he would not have doné, or into omitting to do that which he would have done in reference to the matter, had the right been promptly asserted, that the defence of laohes can be considered. Gibbons v. Hoag, 95 Illinois,. 45, 69; Thompson v. /Scott, 1 Bradwell, App. -Ill. 641; Hx&bard v. United States Mortgage Co., 14 Bradwell, App. Ill. 40;’ United States v. Alexandria, 19 Fed.’Rep. 609; S. C. 4 Hughes, 545., Here there can be no pretence that our delay to sue has wrought an injury to defendants.</p> <p>As to the question of limitation raised, it must be decided upon the law in force at the time when the contract was made / even though a new limitation law were enacted before suit could be brought. Means v. Harrison, 114 Illinois, 248; McMillan v. McCormick, 117 Illinois, 79.</p> <p>[Counsel then examined the statutes at length, contending that1 they did not bar the action, and that there had been no laches.]</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>Bill in equity. The case is stated in the opinion of the court.</p>

Held: “ upon a careful consideration of the statute,” that it did “ not give a lien upon the vessel for the fine which may be imposed upon him (the master) for a violation of the first section-of the act',” and the libel was accordingly dismissed. The judgment of the ¿¿strict Court was affifmed on appeal by the Circuit Court.

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This suit was brought for a partitiou of two adjacent tracts of land in the county of Los Angeles, known respectively as Rancho “San José” and “San José Addition.” The facts were these: In 1831, the Mexican Government granted to Ygnacio Palo-mares and Ricardo Yejar the rancho known as “San José.” Afterwards, these grantees formed a partnership with Luis Arenas, and the Mexican Government granted to. the three the rancho known as “ San José Addition,” which adjoined the other.

Thornton v. Schreiber, 124 U.S. 612 (1888), was a United States Supreme Court case in which the Court held a copyright holder may not personally sue an employee of a business for copyright infringement if the employee was holding the infringing material on the order of their employer.

Held: *622 (1) He was in custody under or by color of the authority of the United • States, and the District Court had jurisdiction to issue the writ; (2) The jurisdiction of the court was not affected by the fact that the collector had passed on the question of allowing the person to land, or by the fact that the treaty provides for diplomatic action in a case of hardship; (3) The case of the petitioner was not to be…

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APPEAL PROM THE CIRCÜIT COURT OP THE UNITED STATES POR THE EASTERN DISTRICT OP ARKANSAS. The facts on which this case rested were these : Robert K. Dow, Watson Matthews, and Charles Moran are the trustees in two mortgages executed by the Memphis and Little Rock Railroad Company as reorganized, one on the first and the other on the second of May, 1877, to secure two separate issues of bonds.

Held: notwithstanding the construction put upon the first clause of § 7 of the act of 1839 by this court in McClurg v. Kingsland, 1 How. 202 , that the defendants had acquired no right beyond the right to use the specific machines constructed prior to the application for the patent.

The court stated the case as follows: — All of these cases involved the same general question, and they may properly be considered and decided together. From the récords it appeared that the Pacific National Bank of Boston was an association for carrying on the business of banking, organized under the national bank act.

Held: that the conveyance was in legal effect an assignment of the contract; and that the assignee could not maintain, a suit for the enforcement of this contract in the Circuit.