Volume 157 — United States Reports

The certificate of questions sent up in this case was as follows: “ A decree dismissing the bill in this cause after a hearing upon the setting down of pleas thereto having been made in the Circuit Court for the Southern District of New York, and an appeal having been taken therefrom to this court, and the cause having come on for final hearing, certain questions of law arose concerning which this court desires the instruction of the Supreme Court of the United States for…

The appellant, who was the plaintiff below, claimed to be possessed of the equitable title to certain lands, the legal title to which is in the appellee, Frederick T. M. Wenie, by virtue of a patent issued by.the United States January 25, 1890.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>This was a libel in admiralty for a collision which took place on May 27, 1887, in the lower bay of New York, between the barque Quickstep, then in tow of the tug Leonard Richards, and the Norwegian steamship Ludvig Holberg, outward bound and in ballast. The suit, which was promoted by the owner of the cargo of the barque, was originally begun against both the tug and the steamship, but no service appears to have been obtained upon the tug, as the steamship alone appeared and answered. The District Court dismissed the libel, and the libellant appealed to the Circuit Court, which affirmed the decree of the District Court and made the following findings of fact:</p> <p>“(1) The libellant Stafford was the owner of the barque Quickstep before and at the time of her loss on the 24th of May, 1887. The libellant, the F. O. Matthiessen & Wiechers Sugar Refining Company, is a corporation and was the owner of a cargo of sugar laden on board said barque.</p> <p>“ (2) On the afternoon of the 24th day of May, 1887, the barque Quickstep, laden with a cargo of sugar, was being towed from sea into the port of New York by the. tugboat Leonard Richards on a hawser eighty fathoms long. While proceeding up about in the middle of the main ship channel and when a little to the southward and eastward of buoy No. 11, at about 4.26 p.m., she was run into by the steamship Ludvig Holberg, the latter vessel striking the barque on her port quarter about the mizzen-topmast backstay, cutting into her after companion door — a distance of about nine feet — cutting her open so that the cargo rolled out. Immediately after the collision said barque began to sink, and, while sinking, was towed by the tug on to the west bank, where she grounded in 25 feet of water about a quarter of a mile below buoy No. 11, and became a total loss, and her cargo was nearly all lost.</p> <p>“(3) The barque was 170 feet long, 37 feet beam, 23 feet depth of hold, and was laden with 1024 tons of sugar, and drew 20 feet of water.</p> <p>“(4) The Ludvig Holberg, which hails from Bergen, Norway, was an iron screw steamship of 687 tons register, 200 feet long. The claimants, Christopher Kahrs and others, were her owners. She was in ballast, drawing 13 feet aft and 9 feet forward, bound for Barracoa for fruit. She was tight, staunch, strong, and properly manned and officered, having a competent master and officers and a full complement of men. At and prior to the time of collision her master and pilot were on the bridge. She steers by hand, and there was at her wheel one ordinary seaman, steering the vessel as directed by the pilot. The first officer and second officer were on lookout on the port and starboard sides respectively of the forestay, which is fastened to the stem. Back of them, by the windlass, was the carpenter, also on lookout.</p> <p>“(5) The steamship started from pier 15 East Biver some time between 3.05 and 3.15 p.m. She ran slow out of the East Biver, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water was, while at full speed, about 9 to 9£ knots; while at half speed, about G-J to 7 knots; while at dead slow, about 3£ knots an hour. She had been running at the latter’ rate for a few minutes only, probably not more than four or five, before the collision. The pitch of her screw was 14 feet 2 inches, and at full speed she made from’69 to 71 revolutions per minute ; at half speed, from 40 to 45 to 50 revolutions per minute; and at slow speed from 20 to 25 to 26 revolutions per minute.</p> <p>“(6) She was off Bedloe’s Island between 3.27 and 3.32, and it was nearly 4 o’.clock when she reached Fort Lafayette. The distance from that point to the place of collision is a little over 3J knots. She carried the ebb tide with her from Bedloe’s Island to a little bhlow the forts. 'After a brief period of slack water and until the collision there was a flood tide. Its set was about S. W., which helped a vessel coming in about one knot an hour, and ¿ vessel going-out about half a knot an hour. The wind was southerly, blowing a stiff breeze.</p> <p>“(7). At the time and place of collision there was so much fog as to prevent vessels from being visible to each other for more than a short distance, (estimated by-the witnesses from the Holberg at between 200 and 300 feet,) and such as to require the sounding of fog signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision.</p> <p>“ (8) The Ludvig Holberg ran into this' fog about the time she passed the forts, and at that time began sounding fog signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13.</p> <p>“ (9) By the time she reached a point a little below buoy No. 13 she had slowed down to about four knots over the ground. From that point to the place of collision, a distance of about 4500 feet, she did not increase her speed, proceeding down the channel, keeping upon the starboard side, as near the channel buoys as she could safely go, and sounding fog signals from time to time.-</p> <p>“(10) While she was thus proceeding she. heard one blast right ahead, then another a little, more on the starboard bow. Both these were blown by the tug, which was not at that time visible, through the fog, to those on board the Holberg.</p> <p>“(11) Almost immediately thereafter the tug came in sight only a few hundred feet off and a little oh the steamer’s starboard bow, and gave a signal of two blasts.</p> <p>“(12) Neither the barque nor the hawser were then visible, and no signals indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her.</p> <p>“(13) Upon receiving the whistle of two signals from the tug, the steamer starboarded and passed the tug starboard to starboard, clearing her about 30 feet.</p> <p>“ (14) Then, for the first time, the Ludvig Holberg became aware of the presence of the Quickstep, which was not following directly after the tug, but to starboard of her, and whose pilot at that time, by putting her wheel hard-a-port, threw her head somewhat more to starboard.</p> <p>“(15) Thereupon the steamship ported in order to go between the tug and the barque, at the same time hailing the tug to cast off the hawser.</p> <p>“(16) If the hawser had been cast off promptly the steamer would probably have gone safely between the tug and the barque.</p> <p>“(17) The hawser was not cast off, and the steamer running against it with her starboard bow parted it, and at the same time her bow was swung to port, resulting in collision with the barque’s port quarter.</p> <p>“ (18) The steamer stopped and reversed as soon as she saw the tug had a vessel in tow, but not before, and was nearly stopped at the time of collision.</p> <p>“(19) Had the steamer been aware when she starboarded to pass the tug that the latter vessel had the Quickstep in tow on a hawser of 80 fathoms, she could and in all probability would have avoided the collision.</p> <p>“ Conclusions of law.</p> <p>“(1) Said collision was not due to any fault or negligence of those in charge of the Ludvig Holberg.</p> <p>“(2) The libels herein should be dismissed, as already decreed by the District Court, with costs to the claimants in both courts.”</p> <p>Claimants also put in evidence a duly certified copy of the following rule of the supervising inspectors :</p> <p>“ Rule X. Section 8. All steam vessels, (except upon the Red River of the North and rivers whose waters flow into the Gulf of Mexico,) when engaged in towing during fog or thick weather, shall sound three distinct blasts of their steam whistles in quick succession, repeating at intervals not exceeding one minute.”</p> <p>From the decree of the Circuit Court libellant appealed to this court.</p>

Held: that these words did not have the effect of increasing the sum actually recovered in the special term, and that the inaccuracy was not sufficient ground for reversal.

Held: That the statements regarding the “horses and men” required for the expedited service came within the statement as to “stock and. ■ carriers ” required therefor, as provided in Rev. Stat. § 3961; (2) That P. and S. were bound by these statements and were estopped from asserting that it was not intended thereby to bring the contract within the statute; (3) That the demurrer admitted the fact that the increase had…

<p>error to the circuit court of THE UNITED STATES FOR- THE NORTHERN DISTRICT OF CALIFORNIA.</p> <p>The case is stated in the opinion.</p>

Held: first, that there was no sufficient evidence to find that she was unseaworthy at the time the cargo was shipped, and even if there were, that the exception of “ accidents from machinery ” exonerated the vessel from the consequence of such breakage, and rendered the cargo liable for its proportion of salvage. The Cargo ex Laertes, 12 P. D. 187, was a similar case, wherein the cargo was proceeded against for salvage.

Held: per Mr. Justice Gray, sitting with Putnam, Circuit Judge, and Nelson, District Judge, as follows: “ The facts found in the record, and on which this case must be decided, are that the wools specified in class 2, as well as the hair of the camel and of the alpaca, are all fit, adapted, and used for combing purposes; that there are breeds of goats, such as the Cashmere and the Angora, which produce hair for combing…

This action was brought in the Court of Common Pleas of Richland County, Ohio, and removed into the Circuit Court by the defendant. The petition for removal stated: “ First. The plaintiff was at the time of the commencement of this action and still is a resident of the State of Ohio, in the county of Richland. Second.

In March, 1887, the plaintiff in error, imported a lot of rugs. They were classed by the custom authorities as “Tournay velvet carpets,” and, as such, -held subject to a duty of forty-five cents per square yard and 30 per cent ad valorem. The importer protested against this levy, and claimed that th.e merchandise was only dutiable at 40 per cent ad valorem.

On June 27, 1890, Congress passed an act, 26 Stat. 182, c. 634, the fourth section of which is as follows: “ That no agent, attorney, or other person engaged in preparing,. presenting, or prosecuting any claim under the provisions of this act shall, directly or indirectly, contract for, demand, receive, or retain for such services i n preparing, presenting, or prosecuting such claim a sum greater than ten dollars, which sum shall be payable only upon the order of the…

Held: that this was a sufficient certificate of a question of jurisdiction under the provisions of the Judiciary Act of March 3, 1891, c. 517,- 26 Stat. 826 , 827.' A Circuit Court of the United States has not the power to appoint a receiver of property already in the possession of a receiver duly and previously appointed by a state court, and caunot rightfully take the property out of the hands of the receiver so…

This was an action against the collector of customs for the port and district of Chicago, to recover certain duties paid under protest, upon an importation of flaxseed, which contained four per cent of impurities. The only question in the case was whether the importers were entitled to an allowance from the gross weight of the goods, of a percentage for impurities.

Held: that, while papers not otherwise competent cannot be introduced for the mere purpose of enabling the jury to institute a comparison of handwriting, yet where other writings, admitted or proved to be genuine,-are properly in evidence for other purposes, the handwriting of such instruments may be compared by the jury with that of the instrument or signature in question, and its genuineness inferred from such…

<p>A guardian of an infant, appointed in one State, cannot maintain a suit in the Circuit Court of the United States held within another State, to set aside the appointment or to compel an account of a guardian previously appointed in the latter State, except so far as authorized to do so by its laws.</p> <p>In a suit by an infant, by his next friend, the infant, and not the next friend, must be made the plaintiff.</p>

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

The Mexican National Construction Company, a citizen of Colorado, assigned certain causes of action against the Mexican National Railroad Company, also a citizen of Colorado, to Davidson, a citizen of New York, September 11, 1891, and, on the same day, Davidson began his action of attachment in the Supreme Court of the State of New York, against the railroad company, which in due season, removed the cause into the United States Circuit Court for the Eastern District of New…

<p>A bridge carpenter, employed by a railroad company who is injured through the negligence of employés of the company while assisting ir. unloading lumber, taken from an old bridge, on a car for transportation over the road, is an employé of the company within the meaning of § ¡)3, c 23, of the General Statutes of Kansas which makes railroad companies in that State liable to its employés for damage done, them through the negligence of its agents or the mismanagement of its employés.</p>

- - This was a bill filed in the Circuit- Court of the United States.for the District of Colorado on October 23, 1886, by Lucien Baker against E. M. Hulburd, Daniel E. Parks, N. P. Seeley, and Samuel N. Wood, praying that defendants Seeley, Wood, and Parks be restrained from in any manner selling, transferring, or disposing of a certain judgment recovered by Baker against the board of county commissioners of Lake County, Colorado, and from demanding payment of the same from…

At October term, 1890, a motion was made by Mr. Samuel L. Gilmore on behalf of the defendant in error to dismiss the writ of error in this case, then No. 1314 on the docket of that term, or to affirm the judgment of the court below. This motion was opposed by Mr. Charles F. Buck for the plaintiff in error, and was denied by the court April 6, 1891, without an opinion. The case now decided is stated in the opinion.

The State of California by its attorney general, by leave of court, exhibited its bill in equity in this court against the Southern Pacific Company, a corporation and citizen of Kentucky, on November 6, 1893, and an amended bill of complaint was filed on like leave and with the consent of the defendant, March 5, 1894.

Motion to dismiss. In 1872 the General Assembly of Maryland passed an act to ratify and confirm the Governor’s appointment of Daniel Clarke and Sidney I. "VVailes, as commissioners on behalf of the State, to prosecute to settlement all her claims against the government of the United States under the act of Congress approved July 27, 1861, which provided for the payment by the Federal government to the Governor of any State, etc., of any expenses properly incurred by the…

Held: that the verdict was a general verdict of guilty under the first count, and that the words attached did not qualify the conclusion of guilt. The case is stated in the opinion. Mr. Thomas B. Alcorn for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. Mr. William H. Pope was on his brief.

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>This was a petition originally filed by Thomas W. Sweeny, brigadier-general on the retired list of the army, to recover the sum of $182.05, charged against him by the United States, as to which amount he was claimed to be in arrears, and paid by him under protest. The petitioner having died after the commencement of the action, the appellee was admitted to prosecute the claim, as administratrix.</p> <p>The case was argued and submitted in May, 1898, and the petition dismissed. Claimant applied for a rehearing, which was granted, and the case again submitted and decided'by a majority of the court in her favor. Judgment was thereupon entered in the sum of $182.05, and the court made a finding of facts, of which the following is a summary:</p> <p>On December 3, 1846, Thomas W. Sweeny, appellee’s intestate, being at that time a lieutenant in the Second New York Yolunteers, was mustered into the military service of the United States, under the act of May 13, 1846, authorizing the President to accept the services of 50,000 volunteers for the prosecution of the. existing war between the United States and Mexico. He served in this capacity'until March 17,1848, when, having received a commission as second lieutenant in the Second United States Infantry, he was mustered into the regular service of the United States. Some time after March 3, 1853, five years from the date of his commission in the regular army, he charged for and was paid his first longevity ration for five years’ prior service, under the act of July 5, 1838. In September, 1855, he charged, in his voucher for pay, one longevity ration for the period from December 4, 1851, (five years from his muster into the service as a volunteer,) to March 3, 1853, and was paid this item by the paymaster, October 15, 1855. The disbursement of this longevity ration from December 4, 1851, to March 3, 1853, was never approved or allowed by the accounting officers, but was disallowed by them upon the first examination of the paymaster’s voucher. The matter was reported by- the Secretary of War to the Second Comptroller, who, on July 4, 1856, filed a written opinion to the effect that the time spent in the military service as a volunteer under the act of May 13, 1846, could not be counted in the longevity rations under the act of July 5, 1838. In accordance with this decision, the voucher was disapproved by the Second Auditor and by the Second Comptroller, and the amount charged against Lieutenant Sweeny.</p> <p>On August 31, 1857, he was paid the amount of the second longevity ration from December 3, 1856, to August 31, 1857, and after that date he was successively paid his second ration for the respective months down to February, 1858. But these payments were disallowed in due course by the accounting officers, and the appellee’s intestate was again required to refund.</p> <p>In 1892, he was informed that he was in arrears to the United States in the sum of $182.05, which he paid under protest, and subsequently began this suit to recover the amount so paid, -upon the ground that he ought to have been credited with longevity rations due on account of his service as a volunteer in the Mexicaá war, the first two of which rations he had been required to refund, while the last two had never been paid to him.</p>

Held: following Coffin v. United States, 156 U. S. 132 , that this was error, as the defendants were entitled to an instruction upon the point of the presumption of innocence, if requested.

Held: that there was, in this instruction, nothing of which complaint could reasonably I5e made. The case is stated in the opinion. Mr. A. II. Garland for plaintiff in error. Mr. Solicitor General for defendants in error.

<p>A corporation, acting in good faith and without any purpose of defrauding its creditors, but with the sole object of continuing a business which promises to be successful, may give a mortgage to directors who have lent their credit to it, in order to induce a continuance of that credit, and to obtain renewals of maturing paper at a time when the corporation, although it may not be then in fact possessed of assets equal at cash prices to its indebtedness, is in fact a going concern, and is intending and is expecting to continue in business.</p> <p>Under the circumstances detailed in the statement of facts and in the opinion of'the court in this case, it is held,' that the mortgage given by the Sanford Fork and Tool Company, by special direction of its stockholders, to its directors to secure them for indorsing and for continuing to indorse the paper of the company, is valid.</p>

Held: that, in thus qualifying the instruction the judge committed no error. The accused was a witness in his ow.n behalf. The court instructed the jury: “ The defendant goes upon the stand before you and he makes his statement; tells his story.

Held: That it was not necessary to insert in the index the name of the State as a grantor ; (2) That taking the page of the original index as a whole, no one could be misled by it who was not wilfully misled,, and it was sufficient to set the statute of limitations in opei'ation; (3) That the new and correct index, having been properly certified to according to law, was from that date as effective as the original; (4)…

Held: might be made good by amendment, when there was enough in the record to amend by. Mossman v. Higginson, 4 Dall. 12 ; Course v. Stead, 4 Dall. 22 .

Held: on this record, that even if the money could be said to have been paid at the time of the final liquidation because not applied until then, it was not paid in order to get possession of the goods.

APPEAL EEOli THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.

is thus stated : “A fraudulent entry of public land allowed by a register and receiver, upon false proofs of settlement, occupancy and housekeeping, may be set aside and vacated by the Commissioner of the General Land Office.” And in the opinion, pronounced by Mr. Justice Catron, it is said : “ The question is again raised, whether this entry, having been allowed by the register and receiver, could be set aside by the Commissioner.

Held: upon a.libel in rem, to be liable in damages to the owners of that vessel.

Held: that this court has no jurisdiction.to-revievv the judgment of the Circuit Court in this case, and (2) that the writ of error was brought too late. *428 The case is stated in the opinion. Mr. J. L. Bradford for plaintiffs in error. Mr. Solicitor General for defendants in error.

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

<p>When a prisoner is indicted in a state court for murder, it is for the courts of the State to decide whether the indictment sufficiently charges that,; crime in the first degree.</p> <p>In view of the decisions by the highest court of New Jersey, referred to in the opinion, declaring the meaning and scope of the statutes of that State under which the accused was prosecuted, it cannot be held that he was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the Fourteenth Amendment to the Constitution.</p> <p>The refusal by-the state court to grant a writ of error to a person convicted of murder, or to stay the execution of a sentence, will not warrant a court of- the United States in interfering in his behalf by writ of habeas corpus.</p> <p>When a state court has jurisdiction of the offence and the accused under an indictment found under statutes of the State not void under the Constitution of the United States, and proceeds to judgment under such statutes, a Circuit Court of the United States has no authority to interfere with the execution of the sentence by means of a writ of habeas corpus.</p>

Held: that the defendants having purchased the patented articles in Michigan from the assignee of the patent for the territory included in that State, had a right to sell them anywhere within the United States, including Massachusetts, where the patent rights had been assigned to another assignee. The previous cases bearing on this point considered and reviewed.

Held: that this instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence.

Held: that this exception was insufficient. The case is stated in the opinion. Mr. Henry H. Ingersoll for plaintiff in error. Mr. Leon Jourolmon appeared for defendant in error, but the court declined to hear him. The Chief Justice : This was an action on the case to recover damages for injuries received through the alleged negligence of the defendant.

Held: That it appeared by the record that the court had in that case passed upon and determined the question of priority of location, *684 and upon such determination had given judgment in favor of the plaintiff; (2) That the defendant’s withdrawal of his answer did not operate to take the complaint out of the case, or the allegations of fact contained in it, or to prevent a judicial determination of those facts; (3) That…

Theodore Lambert presented to one of the judges of the •Circuit Court of the United States for the third circuit, at chambers, On December 28,1894, his petition for habeas eorpiis, which alleged that he was restrained of his liberty by the sheriff of Camden County, New Jersey, under a reprieve granted by the governor of that State December 4, 1894,. whereby the execution of a certain judgment of the Court Of Oyer and Terminer and general jail delivery of the county…