Volume 135 — United States Reports

Held: in the case of Bartemeyer v. Iowa, that as a measure of police regulation, looking to the *130 preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the'Constitution of the United States, we see nothing in the present case that can afford any sufficient ground for disturbing the decision of the Supreme Court of Massachusetts.” 97 U.…

Plaintiff in error was prosecuted and convicted in the Circuit Court for Iron County, Michigan, under an information alleging “that on the 19th day of July, in the year of our Lord one thousand eight hundred and eighty-eight, at the village of- Iron River, in said Iron County, Henry Lyng, then and. there being, was a person whose business consisted in part of selling at wholesale brewed and malt liquors, (not proprietary patent medicine,) as agent for Franz Hagemeister and…

Held: that, although the decree was apparently incongruous in supporting the deed as to a part and sotting it aside as to the remainder on a bill charging undue influence, yet as no appeal had been taken by the defendant, the court would look into the merits, and that, whatever criticism might be made upon its form, the decree was substantially right. *168 When a husband and wife separate, and one son remains with the…

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

<p>A suit was brought to recover from T. possession of a-tract of land of about 35 acres, part of a larger tract of 186 acres, which the plaintiff, claimed to own. The lessor of T. of the 35 acres was made defendant, and answered, claiming to own the land sued for and also the rest of the 186 acres. The plaintiff recovered a judgment for the 35 acres, their, value not exceeding $2000. The value of the 186 acres was about $.10,000. The lessor having brought the case to this óourt by a writ of error, it was dismissed, on the ground that the amount involved was not sufficient to give this court jurisdiction, because it did not exceed $5000, exclusive of costs.</p>

<p>When the Commissioner of-Pensions, -in executing an instruction from the Secretary of the Interior to increase a pension, gives a construction to a statute which had not been construed by the Secretary, but which had been left, open to the commissioner to construe, mandamus does not lie to compel the commissioner to give a different construction to it.</p>

<p>APPEARS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.</p> <p>Motions to dismiss or affirm. The court stated the case as follows:</p> <p>' On August 1 and 2, 1883, upon a creditor’s bill brought by Granville D. Braman, a_ judgment creditor of the Toledo, Cin-’ cinnati and St. Louis Railroad Company, Edwin D. Dwight was appointed receiver o-f all the property of the' company in Illinois, Indiana and Ohio, by orders made in the Circuit-Courts .of the United States in districts of those States. August 14, 1883, the Central Trust Company filed its bill in the United States Circuit Court for the Southern District of Ohio, against the Toledo, Cincinnati and St. Louis Railroad 'Company, the- Cincinnati Northern Railway Company, and the said Braman- and another; asking a foreclosure of certain mortgages therein described. This cause was numbered 3554. In October,-1883, the Central Trust Company filed its bill in the same court against the Toledo, Cincinnati and St. Louis Railroad Company, the Toledo, Delphos and Burlington Railroad Company, and the said Braman,' for a foreclosure of certain mortgages therein set forth, which cause was numbered 3578. On October 25, 1883, one-Willi am J. Craig was appointed receiver of the mortgaged property in each of these causes, took-possession of it and superseded the possession of the'former receiver, Dwight. October 27, 1883, thé Grant 'Locomotive Works and the American Loan and Trust Company by leave filed their intervening petition in No. 3578, setting'up a contract between the Toledo, Cincinnati and St. Louis Railroad Company and the Grant Locomotive Works, for the leasing and conditional purchase by and sale to the railroad company.of ten locomotives, Nos. '57 to 66, for the price of $105,000, payable in instalments, the title to the locomotives remaining in the Grant Locomotive Works until payment was fully made; that the whole purchase price was represented by bonds of the railroad company, made payable at the, office of the American Loan and .Trust Company.at Boston, and certified to by said trust company as trustee; the default of ■the Toledo, Cincinnati and St. Louis Railroad Company; and praying a surrender of the ten locomotives and the payment of all arrears due for rent, interest and repairs up to that time under said contract, and also of any deficiency that might arise upon a .resale by them ,of the said ten locomotives, and for othpr relief.</p> <p>On the skme day, R. S, Grant filed in No. 3554 his intervening petitioñ, alleging.a similar contract, with the. Cincinnati Northern Railway Company in respect to other locomotives at the price of $90,558.97, of which $18,558.97 was paid in cash, and the remaining $72,000 was made payable in' monthly ' instalments, represented by bonds of the Cincinnati Northern^. Railway Company, the payment of -which was assumed the Toledo, Cincinnati and St. Louis Railroad Company, upon consolidating with tbi former company in 1883, the. title to .' the locomotives remaining in the said Grant until payment'irt full was completed; the default of the Toledo, Cincinnati and St. Louis Railroad. Company; and praying for the return of'1 the locomotives;' the' payment of all arrears due for rent; in-1, terest and repairs up to that tiipe; and also of any deficiency ;that might aris'e upon a resale of the said locomotives, and for - other relief.</p> <p>■ On December 6, 1883, Craig,'as receiver, by his attorney,'' filed his answer to the. intervening petitions, admitted .the' agreements and the defaults in payment, and further, answered that all the locomotives were in- his possession .and were necessary to the operation of the railroads by him, and pray'éd that thecourt would make such'Order as woúld enable him .to retain the possession and use of the locomotives.’ On the 17th of December, 1883, the attorney of the receiver notified the judge of the court that there was no reason why judgment should not go upon the intervening petitions, and that there was, no objection to the draft of decrees, as the receiver had only resisted claims for damages, and these had been waived. On the 22d day of December, 1883, of the October term, two orders were entered in each of said causes Nos. 3554 and. 3578, in favor of the. intervening petitioners. The two in favor of R. S. Grant in No. 3554.were as follows:</p> <p>“The said cause came on to be heard upon the petition and - the answer, pf the receiver thereto and upon the evidence suh-. mitted on behalf of said petitioner.</p> <p>“ And it appearing to: the satisfaction of the court that • the receiver has in his possession Grant locomotive, No. 73,■ and is using the same in the operation of the said Cincinnati Northern Railway Company-between Cincinnati and Dayton, Ohio, and that said locomotive is- one of the ten covered by the agreement of lease set out.in said petition, and was acquired by said railway company under -the terms of said agreement, and'was’so held at the date of the appointment of the re: ceiver herein;</p> <p>■ “And it further appearing that'the presént receiver or his predecessor took the said locomotive, with- its tender, into his possession as such receiver on the first day ’of August last, and -has had thé same in continuous -use and possession since that -date without having made any of the monthly payments of rental as provided in said -indenture of. lease, or other compensation for the use thereof;</p> <p>. ’ And, it further appearing that the said locomotive is, in the judgment of the receiver, necessary to the proper operation of said railway, jand should be acquired as part of its permanent equipment, anid that the value’of said locomotive as fixed in said agreement of íeasé-is reasonable, and that che petitioner, R. S.Grant, the owner1 of said locomotive and tender, is willing, upon receipt pf .the contract price or upon being adequately secured tuerein, to transfer the title of the same to the receiver ;</p> <p>■“And the matter being fully-heard by‘the court and nren due delibération thereon,, it is hereby ordered, adjudged and decreed that the receiver pay to the said petitioner as rental for said locomotive and tender and in full of all claims for rental,' interest and repairs down to the first day of December, 1883,-the sum of $770.48, the same being the amount due tip said date under the terms of said lease;</p> <p>“ And the further sum of $7520, balance in full as purchase money for said locomotive and tender;</p> <p>“ And it is further ordered-that the receiver pay said several amounts as part of the operating expenses of the said railway out of any money not appropriated for the payment of - ¡current labor,- suppliés and -taxes;</p> <p>’ “ And it is further ordered and decreed that the said several amounts, with interest thereon at the rate of six per cent -fróm the first day of December, 1883, -shall be a charge upon' the earnings, income -and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said Cincinnati Northern Railway Company, as ahead-of the first mortgage or other bonded debt of said-company’or either of .them;. and any balance of said several 'amounts remaining unpaid at the date of the foreclosure and sale' of said railways shall be,a first lien thereon, and the said ¡sale shall be made subject thereto?’</p> <p>The second order commenqed-:</p> <p>“ The said cause came onto be heard upon the petition-and the answer of the receiver thereto and upon the evidencé‘ submitted on behalf of said petitioner. And it appearing' to the satisfaction of the court that the receiver has in his possession Grant locomotives numbered' 67, 68 and 72, with their .'tenders, and is using the same in the operation of the said' South? eastern Division of the said defendant, company’s railroad, between Dayton and Wellston, Ohio, and that the said loéomotives are three of the ten covered by the agreement "of lease' set out in said petition,' and were acquired by said railway com-, pany under the terms of said agreement; and were so -held at the date; of the appointment of the receiver.Herein.” ;</p> <p>This order continued in the terms of the' preceding:one, and decreed certain amounts of rentals, interest, and repairs ¡down to December 1, 1883, and a further sum in full as purchase money for said locomotives and tenders, and concluded as follows:</p> <p>“ And it is further ordered that the receiver pay said several amounts as part of the operating expenses of the said Southeastern Division out of any money not appropriated for the payment of current labor, supplies and taxes.</p> <p>“ And it is further ordered and decreed that the said several amounts, with interest thereon, at the rate of six per cent, from the 1st' day of -December, 1883, shall be a charge upon the earnings, income and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said division, prior to the 1st mortgage or other bonded debt of said railroad or said' division thereof, and any ¡balance of said several amounts remaining .unpaid at the date of the foreclosure and sale of said railroad or said division shall be a first' lien thereon, and the said sale shall be made subject thereto.” ■</p> <p>\ Upon the 7th day of March, a.d. 1884, the same being one of^the days of the February term, 1884, of the court, these orders were suspended by an order of court, the petitioner objecting.</p> <p>On the 15th day • of March, a.d. 1884, the Central Trust Company filed its petition in the cause, which it prayed might, be taken as an answer to the intervening petition of Grant, aiid also as a petition for rehearing and review of the orders of December 22, 1883, which it further asked should be-annulled and set aside.</p> <p>• On the 10th day of April, of the April term, 1884, an order was entered in the Circuit Court as follows : .</p> <p>“This dayjbhis cause came-on further to be heard upon the intervening petition of R. Suydam Grant,, filed in this cause October 27, 1883r and the court, being 'fully advised in the premises, does order, adjudge and decree as follows, to wit: •</p> <p>“ The court finds that the two decrees herein made and entered upon- said intervening petition on the 22d day of December, a.d. 1883, were, entered without notice to the complainant herein and without proof; tnat tne said decrees are' erroneous and unjust to the bondholders for whom said complainant is trustee; that said decrees are not authorized by the pleadings, and are based • upon a misrecital of the facts, as evidenced by the record of this cause.</p> <p>“ That said decrees were authorized by the court without examination, in the erroneous belief, entertained at tin? time, that all the parties in interest had assented to said decrees, and that the parties adversely interested acquired no knowledge' of the allowance of said decrees until about the 21th day of' February, a.d. 1881, and after the adjournment of the term of' court at which the same were entered.</p> <p>“ And thereupon it is by the court, of its own motion-, ordered, adjudged and decreed that the said decrees be, and they are hereby, annulled, set aside and held for naught.,</p> <p>“ And the court, coming now to determine the question arising upon the said intervening petition of R. Suydam Grant,' does order, adjudge and decree as follows, to wit:</p> <p>“ That the relief prayed for in said intervening petition' be, and it is hereby, denied except as hereinafter, provided.</p> <p>“ And the court does further find that the said petitioner is entitled to fair compensation for the use of said rolling stock described in his said intervening petition by the receiver of this cause upon the railroad of the Cincinnati Northern Railway Company, defendant herein, and for any deterioration by reason-of such use.</p> <p>“ But the court defers the determination of the amount' of such compensation until the coming in of the report thereon of the master appointed in this cause on the 5th day of April, A.D. 1881. .</p> <p>“ And the court does further find that the said petitioner is entitled to take and repossess himself of his said rolling stock, wherever the.same may be found, in the possession of the receiver ¿ppointed in this cause, or of the receiver appointed in causes Nos. 3576, 3577, 3578 and 3579 in this court.</p> <p>“ And leave is hereby granted to said petitioner to apply at' any time to this court for any additional orders that may.be. necessary in that behalf..</p> <p>“ And the said R. Suydam Grant applied for leave to answer J.he petition of the complainant, the Central Trust Company, filed March 15,01884, and to support his answer by. .affidavits or other proof, and the court, entertaining the opinion that the answer and affidavits proposed are, by the force of the foregoing decree, rendered unnecessary, declined to grant the leave asked, and refused to permit an answer to said petition for rehearing, on affidavits or. other proof in- support thereof, to be filed; and thereupon the intervening petitioner, R. Suydam Grant, in open court, prayed an appeal from the foregoing decree, which is disallowed by the court.”</p> <p>Two like orders, mutatis mutandis, were entered in case 3578 on the petition of the Grant Locomotive Works and the American Loan and Trust Company, December-22, 1883, and were suspended March 7, 1884, and set. aside April 10, 1884,' by similar orders to those in No. 3554..</p> <p>¡ In June, 1884, the Southeastern Division of the Toledo, Cincinnati and St. Louis Railroad Company was sold under a decree of foreclosure, which sale was reported and confirmed July 18, 1884. The Cincinnati Northern Division of the said railroad was sold under a decree of foreclosure and .the sale confirmed by order made on July 9, 1884. The decree for the sate of the Southeastern Division provided that unless the railroad company defendant should within ten days pay into court th& amount of interest in arrear, and the sum of $20,000 to be applied-to the payment of costs and expenses, including the ■receiver’s indebtedness,'then the property should be sold, and that upon the sale not less than $20,000 should be paid in cash-, and. feuch further portions of the purchase price should be paid in cash as the court should from time to time direct, to meet other claims which -the court should adjudge Jo be prior to the first mortgage, the court reserving the right to resell in case of failure to comply with any order in that regard; and that the ■balance of- the purchase money should be paid either in cash or bonds taken at their net value under the decree. ■ The fund arising from the sale was directed to be applied to the payment : 1st. Of costs, fees and expenses of sale; 2d. Of re^ ceiver’s expehses and indebtedness, “ and to the payment of any other claims which have been or which maybe adjudged by this court in this cause to have priority over said first mortgage;” 3d. To the payment of the first mortgage bonds. The decree for the sale of the Cincinnati Northern Division made provisions similar in all respects, except that the amount to be paid for costs and expenses and the amount of the bid to be . paid down in cash was $50,000. The Southeastern Division was sold to N. H. Mansfield and others as trustees for $500,000, and the Cincinnati Northern Division to J. N. Kinney, A. S. Winslow and others for $200,000. On the confirmation of each of the said sales, it was ordered that the purchasers, upon. paying in cash the $20,000 or the $5.0,000, respectively, should receive a conveyance of the. mortgaged property and become subrogated to all the rights thereof of the lien holders, parties to the suit, and that the receivers should thereupon surrender' possession of the mortgaged property to such purchasers. Each of the orders of confirmation contained the following clause:</p> <p>*£And it is further hereby ordered, adjudged and decreed1that this decree of confirmation of the sale of the premises and property, rights and franchises aforesaid be subject to the terms and provisions of the decree of sale heretofore entered in this cause, whereby it is provided that of .the purchase price so bid at said sale such further portions thereof, in addition to the said sum of fifty thousand dollars heretofore mentioned, shall be paid, in cash as this court might from time-to time in this case direct, in order to meet other claims which this court has or hereafter may adjudge in this case to be prior in equity to said first mortgage, and whereby this court did reserve the right to resell in this cause said premises and property, rights and franchises, upon the failure to comply, within twenty days with.any order of this., court in that regard; and the right,, title and interest of the said purchasers in and to the premises and property, rights and franchises aforesaid by virtue of the said sale, and of this confirmation-thereof and of the deed to oe made in pursuance hereof shall be deemed to be acquired subject to said provision.”</p> <p>On' the 8th day of February, 1887,. the Grant Locomotive-Works and K,. S. Grant severally filed petitions in the causes Nos:-3554 and ,3578, setting up the matters hereinbefore detailed, and alleging that the orders of April 10, 1884, purporting to annul the decrees of December 22,1883, were void ;. that the decrees were still in full force; and praying that the said decrees of December 22,1883, be adjudged to be in full force and effect, and that the same be carried into execution'. The Central Trust Company answered, and the purchasers of the Southeastern and of the Cincinnati Northern Divisions demurred, and on the 11th of June, 1887, the following order was entered on each of .said, petitions:</p> <p>. “ This cause this day was heard upon the petition of R. S. Grant'and the Grant Locomotive Works, respectively, herein filed February 8, a.d. 1887, praying that the court set aside Certain orders hereinbefore made on the 10th day of April, 1884, setting aside, certain other orders theretofore made liereinon December 22, 1883, upon the intervening petition of R. Suydam Grant, filed herein on October 27, 1883, and was argued by counsel; and the court being fully advised in -the premises, ib is ordered, adjudged and decreed that said order of said l(jth day of April, a.d. 1884, be, and the same hereby .is, set .aside and held for naught, and that said orders of December 22, 1883, be, and the same hereby are, restored.</p> <p>“ And thereupon came complainant, The Central Trust Company, and prayed an appeal to the Supreme Court of the United States from this decree setting aside said .order of April 10, 1884, and restoring said orders of December 22,' 1883, which appeal is allowed upon complainant giving bond in the sum of five hundred dollars for costs, to be approved by the clerk of this court.”</p> <p>The'appeals so allowed were never perfected.</p> <p>January 28,1889, the intervening petitioners having moved that the purchasers of the railroad property be required to payinto the registry of the court, for the use of the intervenors, the amounts due under the decrees, and that in default thereof the said railroad company property be resold for the benefit of the intervenors, decrees were entered -in each case, reciting: “ And the said intervenor being present, by his counsel, and the purchasers of the Dayton and of the Cincinnati Divisions being represented by ,C. W. Fairbanks, their solicitor, and the Cincinnati, Lebanon and Northern Bailway Comphny, assignee of the purchasers at' the foreclosure sale of the Cincinnati' Northern Bail way, by William M. Bamsey, its solicitor, and the Dayton, Fort Wayne and Chicago Bailroad Company, assignee of the purchasers of the Southeastern Division, and of the purchasers of the Iron Bailroad, by John O. Coombs, its solicitor, and B. D. Marshall, the present receiver of the said railroad company, and the purchasers of the main line, the Toledo Terminal, and the St. Louis Division, being present by Clarence Brown, their solicitor, objecting to the jurisdiction of the court, and the complainant, the Central Trust Company of New York, opposing said motion of the said intervenor, being represented by Edward Colston, its solicitor. And, thereupon, pending the hearing upon the said motion, comes the complainant, the Central Trust Company of New Y ork, [and prays that its petition for rehearing, filed] on the 15th day of March, 1884, be now- heard as a petition for a rehearing of the said decrees of December 22, 1883 ; or, if that relief be denied, that the same be taken and held to be a bill of review, or a bill in the nature of a bill of review; or, if that relief be denied, that the said petition be amended and supplemented in certain respects, as stated in a certain paper now read, and be now docketed as an original bill of review as of the 15th day of March, 1884,”.- which application and each part thereof was denied, and the Trust--Company excepted; and, also, pending the hearing, the Dayton, Fort Wayne and Chicago Bailroad Company, as assignee of the purchasers of the Southeastern Divis-, ion, prayed leave to intervene and be heard “in review.upon the matters of the original orders and decrees entered herein, on December 22,1883, and as set forth in a petition in writing therefor;” whiph it moved the court for leave to file herein, which application was denied and' the railroad company excepted.</p> <p>The' court; then, having heard argument, decreed that the respective purchasers should make payments into court, within sixty days, of the amounts still due to the intervening petitioners, and that in default of such payment the mortgaged property should be resold. The decrees recited the setting aside, on .the líth of June, 1887, of the orders of the 10th of. April, 1884,. as void, and that all the orders or decrees entered .in pursuance or in execution of the said order of April 10, 1884, were equally void and of no effect, and that the decrees entered.on December 22, 1883, were in full force, and effect; and ascertained the amounts remaining due, after deducting credits, to the Grant Locomotive Works for locomotives which had been used upon the Southeastern' Division, with interest from a date named, and for a locomotive which had been used on the Cincinnati Northern Division-; and the amounts remaining due, after deducting credits,, to Grant for certain locomotives which had been used on the Southeastern Division, and for a locomotive which had been used on the»Cincinnati Northern Division, with interest; and ordered that the amounts should be paid, and upon default thereof the divisions should be sold to realize the said amounts respectively. It was provided also that the decrees were “ without prejudice to any right the said intervehors may have' to apply for orders to resell other mortgage divisions of the Toledo, Cincinnati and St. Louis Railroad for the payment out of the proceeds of such resale of any balance of the amount hereinbefore named; ” and without prejudice to the right of contribution as between thé purchasers of* the divisions named and the purchasers of other divisions of the Toledo, Cincinnati and St. Louis Railroad. From the orders of January 28, 1889, the Central Trust Company was allowed and perfected appeals to this court, which áre. here docketed as Nos. 1277 and 1279.</p> <p>■ Exceptions to the rulings of- the court, denying the motions of the. Trust Company that its petitions filed March 15, 1884, be"-amended and supplemented, and permitted to be filed as original bills of review as of that 'date, appear in the records.</p> <p>■The Dayton, Fort Wayne and Chicago Railroad Company was allowed and ■ perfected appeals to' this court from parts of three of khe said orders of January 28, 1889.' These appeals are Nos! '^278 and 1280.</p> <p>On-thé same 28th of Jánuary the Central Trust Company, by its: solicitors, filed in the. clerk’s office of the Circuit Court its bill of review against the Grant Locomotive Works and' the American Loan and Trust Company, stating the filing of its bill of foreclosure October 20, 1883, in No. 3578the appointment of Craig as receiver; the filing of the bill in No. 3554, and in three other cases; the objects of the five bills; the filing of similar bills in October, 1883,.for the foreclosure of mortgages, made respectively by other constituent companies on their respective roads, which roads when connected would form a line of railroad extending from Delphos to Toledo, Ohio, and from Delphos through Indiana and lili-, nois to East St. Louis, Illinois, in .the proper Circuit Courts of the United States for the Northern District of Ohio, the District of Indiana, and the Southern District of Illinois; that the Toledo, Cincinnati and St. Louis Railroad Company was a corporation formed by the consolidation; under the respective laws of Illinois, Indiana and Ohio, of the above-named con-, stituent companies and other companies, extending from St. Louis to Delphos, thence to Toledo, and from Delphos to Cincinnati andTronton; that each mortgage was a separate, and distinct mortgage upon, separate property, there being no property in one mortgage included in another; that all of said mortgages were made prior to any consolidation and were entirely unaffected thereby; that on October 27, 1888, the American Loan and Trust Company and the Grant Locomotive Works filed their intervening petition in No. 3578, a. copy of which is attached to and -made part of said bill of review; that certain orders w.ere entered_thereon, set -aside, etc., giving the proceedings in detail; that the railroad was sold on foreclosure in No. 3578 in June, 1884, but not subject to any claihi or lien for locomotives, and none of the locomotives were included in said sale, but were treated as the ■ property of the Locomotive Works and Grant; that they subsequently took and removed said locomotives; that in February, 1887, the Grant Locomotive Works and Grant filed petitions to . set aside the orders of April-10, 1884, and restore the orders of December 22, 1883, which petitions were granted on . June 11, 1887, and the orders of April 10, 1884, were set aside and adjudged to b.e null and void, and the.orders of. December. 22, 1883, were restored; that the Grant Locomotive Works filed its motion in No. 3578, asking for an order that the purchasers . of' the railroad sold in that case pay into court the several amounts mentioned in the orders of December 22, 1883 ; that thereupon complainant prayed the court to treat such proceedings of March 15, 1884, entitled “petition for rehearing,” as a bill of review to correct said • orders, and to permit complainant to amend said proceedings of March 15, 1884, by adding thereto the averments contained in this bill of review, and to docket the same as thus amended as an original bill of review as of date March 15,1884 ; and that the court refused to allow the same to be done, and ordered, January 28, 1889, the railroad to be sold unless the respective amounts named in the orders of December 22, 1883, should be paid within sixty days by the purchasers of said railroad sold at foreclosure sale in No. 3578. Complainant further says-that it was impossible for it to file a bill of review to correct said decrees (of DeCemr ber 22, 1883) at any time between March 15, 1884, and June 11, -1887, because said decrees, by said order of April 10, 1884, had been set aside and annulled, and complainant so regarded them during said period, and moreover it believed, and had the right to believe, that said Grant Locomotive Works and the American Loan and Trust Company and E. S. Grant had abandoned all claim of fight under the orders of December 22, 1883; and therefore complainant says that said period-of time shoiild not have been counted against it m filing' its bill of review-; that the said orders of December 22, 1883, “are erró-neous and ought to be reviewed, reversed and set aside for the many errors and imperfections common thereto, as shown by the record of the said case 3578, that is to say; ” and then-follow a number of grounds assigned for the review desired, -and special grounds as to each of the orders. Complainant “ files herewith a copy of the record in said cases 3554 and ■3578, and craves leave to refer to same as paft hereof,” and prays that the orders be reviewed, reversed and set aside, and that the-American Loan and Trust Company and said Grant Locomotive Works may be required to answer the premises, and for general relief. This bill of review was subscribed and sworn to January 10, a.d. 1889. Process was issued and áerved on the solicitor of record for the. American Loan and Trust Company and the Grant Locomotive. Works.</p> <p>On the 29th day of January, .1889, there came on to be' heard the motion of the said Loan and Trust Company and the Grant Locomotive Works, to strike the bill of review from' the files, which was argued by counsel, and sustained by the court. From this order the Central Trust Company -prayed an appeal to this, court, which was granted, and bond given and approved on the 31st day of January,. a.d. 1889. The record was filed in this court October 2, 1889, and the cause docketed as number 1281.</p> <p>On the same 28th day of January the Central Trust Company filed a similar bill of review against R. S. Grant, setting up the prior bill of foreclosure in case'No. 3551 and the subsequent proceedings thereon, and on the intervening petition of R. S. Grant, as in the other case, and praying similar relief "on the same grounds in respect to the orders of December 22, 1883. This bill of review was likewise stricken from the files on the 29th day of January, 1889, and an appeal prayed to this court, the record being filed herein October 2, 1889, and-the cause-numbered 1282.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.</p> <p>This was a bill filed by Emanuel Brunswick against Ferdinand de St. Germain in the Circuit Court of the United States for the District of California, October 25, 1880, for an alleged infringement of letters patent No. 72,969, granted to Brunswick, January 7, 1868, for a revolving cue-rack.</p> <p>• The defendant demurred to the bill February 16, 1881, and ara,ong other causes of demurrer assigned that “ the said complaint does not describe or set forth, any new or useful invention, or discovery, or any invention or discovery patentable under, the patent laws of the. United States, but, on the contrary, the descriptions of the alleged inventions contained in said complaint show that the same is not patentable.” The demurrer was overruled, whereupon the defendant answered, denying, among other things, that the alleged invention was of any utility or value; Beplication' having been filed, proofs were taken, and an interlocutory decree was entered on the 12th of May, 1884, in favor of the complainant, sustaining'the patent, finding that there had been infringement, and referring the case to a. master to take and state an account of the gains and profits, and also the damages. The master subsequently reported that the defendant had realized $1176 profits from the manufacture and sale ©f the cue-rack, but that no damages had been sustained by complainant, by reason of respondent’s sales, over and above the profits. Exceptions were filed by both complainant and defendant and were overruled by the court, and on the 27th of May, 1886, a final decree in complainant’s favor was entered in the case, for the amount reported by. the master, with interest and costs, and an appeal duly taken to this court by the defendant.</p> <p>• The first error assigned is “that the court erred in holding that the said letters patent were valid.” The specification, drawings and claim are as follows ;•</p> <p>■ “ Be it known that I, E. Brunswick, of the city of Chicago, in the county of Cook,"State of Illinois, have invented new and useful improvements in billiard cue-racks, and I do hereby declare that the following is a full and exact description thereof; reference being had to the accompanying drawings, making' part of this specification, in which —</p> <p>“ Drawing Nó. 1 represents the plain revolving cue-rack; and</p> <p>“ Drawing No. 2 represents the lock-up rack for private use.</p> <p>“ The nature of my invention consists in making the billiard cue-rack so arranged that it may revolve and be detached from the wall.</p> <p>“To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and. operation.</p> <p>“Two circular plates, A ánd B, (drawing No. 1,) are firmly secured to a vertical shaft, C. The lower plate A is provided with a rim, a, at its outer edge to prevent the butt ends of the cues from slipping off the plate, and the. upper plate B is provided with several openings through which the points of the cues are passed. Each plate is provided with a metallic pin, D, which enters a metallic socket, E, inlaid in the stationary brackets, F E, and revolve in it. " The brackets are secured to a wall, a pillar, or any other object, and support the rack.</p> <p>“I make private cue-racks (drawing No. 2,) in which the lower plate A forms a bottom to a round box, B, open on top, and divided into compartments, C C, by partitions, pp, each compartment having a door, D, hung on hinges and provided with a lock and key. The upper plate E forms a bottom- to: the box B, and is provided with several holes. The rack, being revolving, is very convenient for handling the cues.</p> <p>“ What I claim as my invention and desire to secure by letters-patent is —</p> <p>“ The revolving billiard cuerrack constructed and' operating substantially as and in the manner herein described and specified.”</p>

. Amanda TwELL.brought .her action in equity in the District Court, Second Judicial District,1 Deer Lodge County, Montana Territory, against • Richard Twell/Joseph Lodge and Samuel Beaumont, to set aside certain transfers of property by Twell to Lodge and Beaumont,.on the ground that they were made with intent to defraud the appellee in the matter of alimony, awarded her by a decree of divorce, and to have the property applied to the payment of such alimony.- The divorce…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.</p> <p>The case is stated in the opinion.</p>

<p>Under the act of June 11, 1878, 20 Stat. 102, c. 180, the commissioners of the District of Columbia have the power to summarily remove and dismiss from the police force of the District officers and members of that force.</p>

<p>In this case, on a writ of error to review the judgment of the Supreme Court of a State, it was held that no federal question, was involved, because the case was decided by the state court on a ground broad enough to maintain the judgment independently of any federal question; and the writ was dismissed.</p>

Held: is too general to be the subject of a Certificate of Dimisión.

Held: the use of which jail or penitentiary is, allowed by the legislature of the State for that purpose; ” by section. 5546, that “ all persons who have been, or' who may hereafter be, convicted of crime by ány court of the United States whose punishment is imprisonment in a district or territory where, at the time of conviction, or at any time during the- term of imprisonment, there may be no penitentiary or jail…

<p>The payment made by the United States to Sanborn, which is the subject of this action, was made in consequence of' a misrepresentation by the defendant to the Secretary of the Treasury, which created a misapprehension, on his part, of the nature of the defendant’s services; and the amount so paid ought, in equity and good conscience," to be returned to the United States.</p> <p>When the United States makes a long delay in the assertion of its right to recover back money which it is entitled to recover back, without showing some reason or excuse for the delay, interest before the commencement of the action for such recovery is not recoverable; and this is especially true when it does not appear that the defendant has earned interest upon the money improperly received by him.</p> <p>When the United States are successful in a suit where one of their clerks or officers of the class described in Rev. Slat. § 850 is sent' away from his place of business to be a witnessed?or the government, the* necessary expenses of such witness, audited by or under the direction of the court upon which he attends as a witness, takes the-place, in.the bill of costs, of the per dieni -and mileage which, but for that section, would have been taxed and allowed in tiiejr favor.</p>

<p>A lode patent, issued .subsequently to the issue of a placer patent of a tract within whose metes and bounds the lode patent is located, is not conclusive evidence that the lode was so known at the time of the issue of the placer patent as to authorize the issue of the lode patent.</p> <p>Where two parties have patents for the same tract of land, and the question in a judicial proceedings as to the superiority of title under those patents, and the decision depends upon extrinsic facts not shown by the patents, it is competent to establish it by proof of those facts.</p> <p>The provisions in Rev. Stat. §§ 2323, 2326, as to adverse claims to a lode, for which a patent is asked, do not apply to a person who, before the publication first required, had himself gone through all the regular proceedings required to obtain a patent for mineral land from the United States; had established his right to the land claimed by him; and had received his patent therefor.</p>

<p>Section 1373, Rev. Stats. Texas, authorizes the'granting of new trials only ■ where-the judgment was rendered on service of process by publication.</p> <p>Whether, in ttye absence of a statute, a judgment under which property has been levied upon and sold, and which has stood unchallenged for nearly two years, can be set aside otherwise than through proceedings in equity, ■ qucere.</p> <p>A foreign corporation doing business in the State of Texas may be brought into court by service of process upon its agent there.</p> <p>An affidavit, preliminary to the issue of an attachment in Texas upon a foreign corporation, which recitgs that the defendant “ is not a resident corporation, or is a foreign corporation, pris acting as such,” is a sufficient affidavit under Rev. Stats. Texas, Art. 152. Hopkins v. Nichols, 22 Texas, 206, distinguished.</p> <p>A delay of two years in commencing proceedings to set aside a judgment for usury is laches, and is fatal.</p>

This was-, an action at law. by the administrator of. the assignee, of a mortgage against the executrix of a purchaser of the equity of redemption to recover so much of the mortgage debt as remained unsatisfied after a foreclosure sale. The declaration set forth the substance of the.facts after-wards agreed by the parties. , The .defendant pleaded: 1st, That the testator was never indebted as alleged; 2d. The statute. of limitations of three years.

Held: that the question of infringement ought to have been submitted to' the jury under proper instructions; that it was not a matter of mere judicial knowledge tha.t the mechanical differences between' the two machines were material, in view of the character of the patented invention, and of the claims of the patent; and that the case was not one where, if the jury had found for the plaintiff, it would have been. proper…

Held: That although a grantee in a quitclaim deed is a purchaser within the meaning of the statute, and the pripy recording of such a deed will give it a preference over one previously executed but not recorded until after the quitclaim deed, yet the grantee in the latter deed is charged with notice of what may be done'under a trust deed conveying the same lands, filed for record before the quitclaim deed, and his rights…

<p>Claim 3 of reissued letters patent No. 7947, granted November 13, 1877 " to James Sargent, for an “ improvement in combined time-lock, combination lock, and bolt-work for safes,” the original patent, No. 195,539, having been granted to Sargent, September 25, 1877; namely, “3. The combination, with the bolt-work of a safe or vault-door, of a combination or key lock controllable mechanically from the exterior of said door, with a time-lock haying a lock-bolt or obstruction for locking and unlocking controllable from the interior of the door, both of said locks being arranged so as to rest against or connect with the bojt-work, the time-lock being automatically unlocked by the operation, of the time-movement, both of said locks being independent of each other, and arranged to control the locking and unlocking of the bolt-work, so that said safe or vault-door cannot be opened when locked until both of said locks have been unlocked or have released their dogging action, to enable the door to- be opened, substantially as described,” is invalid, because the specification of the original patent was not defective or insufficient, and the patent was not inoperative; and the sole object of the reissue was to obtain claim 3 as an.enlarged claim; and the proceedings in the latent Office prior to the granting of the original patent show that Sargent abandoned that claim ; and because, although the reissue was applied for only 13 days after the granting of the original patent, there was not a clear mistake, inadvertently committed, in the wording of a -claim.</p> <p>Claims 1 and 7 of reissued letters patent No. 8550, granted to the Vale Lock Manufacturing Company, January 21st, 1879, for an “improvement in time-locks,” the original patent, No. 146,832, having been granted, to Samuel A. Little, as inventor, January 27th, 1874, and having been reissued as No. 7104, to that company, May 9th, 1876, and again reissued to it, as No. 8035, January 8th, 1878; namely, “ 1. The combination of independent multiple bolt-work with the time mechanism and locking or dogging mechanism of a time-lock, automatically both dogging and releasing the bolt-work at predetermined times, substantially as described.” “ 7. In a time-lock, the combination, substantially as above set forth, of the time movements and two adjustable devices, one for determining the time of locking, and the other of unlocking,” are invalid, b'ecause. the original patent was not inoperative or invalid by reason of a defective or' insufficient specification,, within the terms, of the statute, so as to warrant the reissues ; and because the claims are enlarged'; and because of the unexcused delay of more than two years in applying for a reissue ; and because the claims were formally abandoned during tl> proceedings in the Patent Office.</p>

Held: that the Consul General of Guatemala and Honduras did not thereby become the diplomatic'representative of Guatemala, Honduras and Salvador during the absence of the regularly accredited representative, and that, in the absence of a certificate from the Secretary of State that he was such representative, he was not entitled to the immunity from suit except in this court which is granted by the Constitution to such…

<p>ORIGINAL.</p> <p>This was a petition for a writ of habeas corpus. The ease is stated in the opinion.</p>

Held: That the defendants’ assent to the dissolution of the partnership, and the winding up of its affairs in chancery, made it unnecessary to make proof of the special grounds for dissolution set forth in the bill, or for the court to decree a dissolution; (2) That it was not open to the defendants to object for the first time in this court to the report of the master that it proceeded upon erroneous views of the…

Held: That the disproportion between the sum paid and the value of the property purchased was too great to warrant a court of equity in enforcing the purchase; (2) That the long delay in attacking a transfer under which great rights had been acquired by other creditors, justified a court of equity in refusing to lend its aid to the attack; (3) That if it were necessary, (which it was not,) to decide whether the assignment…

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.</p> <p>The case is stated in the opinion.</p>

Held: That these instruments were sufficient under the laws of Louisiana; (2) That they were, not simulated, but that the transaction was bona fide. The case is stated in the opinion. Mr. D. O. Labatt for appellant. Mr. R. H. Browne (with whom was Mr. O. B. Smgleton in the brief) for appellees. ■

<p>In decreeing specific performance of a contract for tbe conveyance of a ■ tract of land in a suit’where the defence was. that the contract was against public policy' and void under the homestead laws of the United States, a state court necessarily passes upon a federal question, although it may put its decision upon other grounds.</p> <p>A’ contract by a homesteader to convey a portion of the tract when he shall acquire title from the United States is against public policy and void;' and, it cannot be enforced, although a valuable consideration may have passed to the homesteader from the other party.</p>

Held: first, that “ a statutory liability preated in derogation to common law cannot be enlarged by construe-' tion; ” and, secondly, that the act, omitting sidewalks, left the law in respect to sidewalks not in repair as it was before ; and that no private action against the city, for damages springing from a defective sidewalk, could be maintained.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF LOUISIANA.</p> <p>The case is stated in the opinion.</p>

The case, as stated by the court, was as follows : . This is an action at law, brought, in the Circuit Court of the United States for the District of- Maryland, by William C. West against Johnson N. Camden.

Held: that the bill could not be sustained. In equity. The case is stated in the opinion. Mr. George W. Morse for appellant. Mr. John O. Goorribs and Mr. Charles'LL Sanson for appellee.

of that case correctly embodies .the rulings of this court, in these words: “ In the absence of fraud, stockholders are bound by a decree against their corporation in respect to corporate matters, and such a .decree is not open to collateral attack.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.</p> <p>The case is stated in the opinion.</p>

the following : “A mine was reached through a vertical shaft by a. bucket lowered' by the unwinding of a rope from the uncoupled drum of a… Held: that the cases were properly submitted to the jury, who were warranted in finding verdicts for the plaintiff.” In the course of the opinion the court said: “ The risk of the safety of machinery is not assumed by an employé, unless he knows the danger, or unless it is so obvious that he will be presumed to know it.” And in another…

<p>APPEAL FROM THE .CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA.</p> <p>In equity. The case is stated in the opinion.</p>

This was an action at law brought to recover damages for an alleged infringement of letters patent No. 107,611, bearing, date September 20, 1870, and granted to James W. Haines for.an “improvement in chutes for delivering timber.” The specification, claim and drawings are as follows : ' “ Be it knówn that I, James W. Haines, of Genoa, in the county of Douglas and State of Nevada, have invented a new and improved chute for delivering timber from high mountains; and I do…

Held: to have been executed with reference to the then condition of the vessel, and not to apply to a sale purporting to be made under it after it had been brought by the master to a port of safety, and not to warrant a conditional sale after extrication, dependént upon the amount of damage which it might be found to have suffered.

<p>Cross-appeals in equity must be prosecuted like other appeals; and although they may be taken and allowed after removal of the cause, on appeal, to this court, yet that caynot be done after the lapse of two years from the date of the decree.</p> <p>The court takes notice of the facts that in this case no assignment of errors was annexed to the transcript of the record as required by law, and that no specification of errors was made in the brief of .counsel, as required by the rule, and expresses the hope that there will be no recurrence of such omissions.</p> <p>If a purchaser of real estate, to whom representations of the character and value of the property are made by the vendor, visits the property itself prior to the sale, and makes a personal examination of it touching those representations, he will be presumed to rely on his own examination, in making the purchase, and not upon the representations of the vendor; and in the absence of fraud or concealment, cannot have the sale set aside: applying this rule to the present case, the bill must be dismissed.</p>

Held: “ If the title be made to all the partners by name, £hey hold the legal title as tenants in common, without survivorship.

Held: That these two causes of action, one of an equitable and the other of a legal nature, could not be joined in the same suit; (2) That the court below erred in not treating the complaint as a petition of appeal which entitled the petitioners to have a trial de novo of the question of damages for the lands and rights proposed to'be taken.

and reported in 116 U. S. 550 , etc., 6 Sup. Ct. Rep. 501, arise upon certain tax-receivable coupons attached to bonds of the state of Virginia, issued in reduction and liquidation of the state debt under the acts of March 30, 1871, and March 28, 1879. The present appeals are a continuation of the controversy arising upon said coupons as receivable and tendered in payment of taxes and other state dues.

Me. Justice 'Bradley continued, stating the case made in these three causes as follows: With regard to three of these cases, Bryan v. The State of Virginia, Cooper v. The State of Virginia, and McGahey v. The State of Virginia, we have very little hesitation or difficulty in • coming to a conclusion. They are suits brought by the Commonwealth of Yirginia against the persons severally named, under the act of May 12, 1887, for' the recovery of taxes' due from them respectively.

Mr. Justice Bradley continued, stating the case as follows: The case of Ellett v. The State of Virginia was a suit brought to recover the amount of a judgment previously rendered against Ellett in the Circuit Court of Richmond for taxes and costs, the amount of taxes being $39.52, and the costs being $24.49.

Me. Justice Beadley, continuing, stated the case as follows : The next case to be considered is that of Cuthbert v. The State of Virginia.

Me. Justice Beadley, continuing, stated the case as follows: The next case to be considered is that of Ex parte Brown, which was an application of the petitioner, Brown, to thfe Circuit Court of the United States for the Eastern District of Virginia, to be discharged from imprisonment in the custody of R. A. Carter, the sergeant of said city and ex officio jailer thereof.

Mr. Justice Bradley, continuing, stated the case as follows: The next case which we shall consider is that of Hucless v. Childrey, which was an action of trespass on the case, brought in the Circuit Court of the United States for the Eastern District of Virginia, by Hucless, a citizen of the State of Virginia, residing in Richmond, against Childrey, the treasurer of Richmond, and, as such, collector of taxes and license taxes due to the State, to recover damages for the…

Mr. J üstice Bradley, continuing, stated the case as follows: ' The remaining case which we have to consider is that of Vashon v. Greenhow. This case arose upon the refusal of Greenhow, treasurer of the city of Richmond, to receive from Vashon tax-receivable coupons in payment, or part payment, of taxes due from him, including a certain amount due for school taxes for the maintenance of the public- free schools of the State.