Volume 160 — United States Reports

This suit was commenced by the United States in the Circuit Court for the District of Nebraska. A decree was there made giving the plaintiff the relief it asked for. 50 Fed. Eep. 28. An appeal was taken to the Circuit Court of Appeals for the Eighth Circuit, where the decree of the Circuit Court was reversed. 19 U. S. App. 531. From that decree the United States took this appeal. The case is stated in the opinion of the court.

<p>Although the United States was entitled to retain and apply, as directed by Congress, all sums due from the Government, on account of the use by the Telegraph Company, for public business, of the telegraph line constructed by the Union Pacific Kailway Company, the entire absence of proof as to the extent to which that line was, in fact, so used, renders It impossible to ascertain the amount improperly paid to, and without right retained by, the Telegraph Company, and subsequently divided between it and the Kailroad Company.</p>

The plaintiff was indicted on the 8th of February, 1895, for the murder of Ernest Melton, a white man and not an Indian. The crime was charged to have been committed at the Cherokee Nation in the Indian country on the 18th day of November, 1894.” Prior to empanelling the jury on the 23d of February, 1895, the accused filed two affidavits for continuance until the next term of court.

<p>APPEAL FROM THE SUPREME COURT OP THE TERRITORY OP IDAHO.</p> <p>This case was argued with the preceding case. The facts are'stated in the opinion.</p>

The Washington and Idaho Railroad Company, a corporation organized under the laws of Washington Territory, on September 18, 1888, filed a bill of complaint in the District Court of the First Judicial District of the Territory of Idaho against S. V. William Osborn, asserting a right to construct and maintain a railroad across lands in possession of the defendant. The cause was put at issue by answer and replication, and the court made the following findings of facts: “First.

This was a bill in equity for the infringement of two letters patent issued to McCarty for improvements in car trucks, viz.: Patent No. 314,459, dated March 24, 1885, and patent No. 339,913, dated April 13, 1886. The application for the first patent was filed June 5, 1884, and for the second patent, August 31, 1883, so that in reality the second patent represents the prior invention.

This was a certificate from the United States Circuit Court of Appeals for the Eighth Circuit, which, omitting the formal parts, reads as follows: “ First.

This was an indictment in the Circuit Court of the United States for the Southern District of New York, on section 5480 of the Revised Statutes, as amended by the act of March 2, 1880, c. 893, and copied in the margin,1 for devising a scheme to sell counterfeit obligations and securities of the United States, by means of circulars through the post office.

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>The case is stated in the opinion.</p>

Held: however, that: “An insolvent debtor having, under repeated decisions of this court, the right to sell and convey property in absolute *161 payment of an existing debt, provided the price is fair and reasonable, and no use or benefit is reserved to himself, such absolute sale and conveyance will not, at the instance of other creditors, be declared and treated as part of a general assignment executed soon afterwards…

<p>APPEAL. PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>The case is sufficiently stated in the short opinion of the court.</p>

This was an action brought by the plaintiff in error to foreclose a municipal-tax or street assessment lien. In a brief filed for defendant in error it was stated that the judgment here sought to be reversed involved the validity of precisely similar extensions to' those sought to be reversed in Wood v. Brady, 150 U. S. 18, and under the same statute. This statement was not denied or challenged by the counsel for the plaintiff in error.

This was a bill in equity to recover one-half the value of a certain piece of real estate in Washington, with the house thereon standing, of which one Julia R. Marvin died seized, together with a like proportion of the rents of the said house and lot received by Mrs. Marvin during her lifetime, or due and unpaid since her death.

At the October term, 1893, of the Circuit Court of the United States for the Northern District of Georgia, an indictment was found against the plaintiff in error, embracing two counts, the first charging him with wrongfully withholding from a pensioner of the United States, one Lucy Burrell, part of a pension allowed and due her, and the second accusing him of demanding and receiving,- as agent, a greater compensation for services in prosecuting the claim for pension than is…

Held: that this was reversible error. Other statements made by-the court to the jury are held to seriously trench on that untrammelled determination of the facts by'a jury to which parties accused of the commission of crime are entitled.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.</p> <p>This was au action, at law, brought Juüe 9, 1890, in the Circuit .Court of the United States for the District of Indiana, by the Interior Construction and Improvement Company against John C. Gibney and Harvey Bartley, copartners under the name of J. C. Gibney and Company, and James B, McElwaine and James B. Wheeler, upon a bond, by which “ J. C. Gibney & Co., as principals, and J. B. McElwaine and J. B. Wheeler, as sureties, are holden and firmly bound,”' jointly and severally, to the plaintiff, in the sum of $20,000, for the performance of a contract made by “said J. C. Gibney & Co.” with the plaintiff.</p> <p>The complaint alleged that the plaintiff was incorporated under the laws of the State of New Jersey, and was a citizen thereof; and that all the defendants were citizens and residents of the State of Indiana.</p> <p>On June 19,1890, the defendants' Gibney, McElwaine and Wheeler, by their attorney, entered a general appearance. But Gibney never pleaded or answered; and the defendant Bartley never appeared, or made any defence.</p> <p>On September 19, 1891, McElwaine and Wheeler pleaded in abatement that at the time of the bringing of this action, and ever since, Gibney and Bartley were citizens of the State of’ Pennsylvania, and not citizens or residents of the State of Indiana; and that, therefore, the court had no jurisdiction of the case.</p> <p>The plaintiff demurred to this plea, as not containing facts sufficient to constitute a cause for the abatement of the action. The plaintiff declining to plead further, but electing to stand upon its demurrer to the plea, the court adjudged that the plaintiff take nothing by its action, and that the defendant recover costs.</p> <p>The plaintiff thereupon presented a petition for the allowance of a writ of error “for the review of the judgment heretofore rendered therein in favor of the defendants and against the plaintiff, therein holding and deciding that this court has no jurisdiction of said action;” and assigned, as errors, that the Circuit Court erred, 1st, in overruling the plaintiff’s demurrer to the plea in abatement; 2d, in sustaining the plea in abatement, and holding that the court had no jurisdiction of the cause; 3d, in entering judgment in favor of the defendants and against the plaintiff on the plea.in abatement, and dismissing and quashing the proceedings. The writ of error was thereupon allowed by the judge presiding in the Circuit Court.</p>

Held: upon a construction of the statute which provided that in such cases suit may be brought only in the place of the residence of the plaintiff or the defendant, the actions could not be maintained in any other district.

This was a petition, filed March 26, 1895, in the Circuit Court of the United States for the District of Connecticut, and addressed to the Honorable "William K. Townsend, the District Judge, as a judge of the Circuit Court, for a writ of habeas corpus to the sheriff of the county of New Haven in the State of Connecticut.

This was a petition for a writ of mandamus to the Honorable “William A. Woods, as Judge of the Circuit Court of the United States for the District of Indiana, to command him to enter, in a suit in equity pending before him, a final decree in favor of the present petitioners, defendants in that suit, in accordance with a mandate of this court upon reversing a decree of that court, on an appeal reported as Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312.

Held: however, in State v. Stimson, 4 Zabr. (24 N. J. Law) 9, that it was not sufficient to describe the offence in the words of the statute, and that there should be some description either *273 of the number or denomination of the coins and of the notes, and also an averment of the value of the notes.

Held: that the title so acquired should prevail over a title acquired by homestead entry in October, 1888. *277 This was an action for the possession of certain parcels of land in Washington Territory, brought in its third judicial district. The land constituted the southwest quarter of the northwest quarter of section eleven in township 25 north, of range 3 east, in King County, in that Territory.

Held: that this' court was without jurisdiction. This was an action of trespass brought by James E. Morgan against the Jersey City and Bergen Railroad Company in the Circuit Court of Hudson County, New Jersey, to recover damages for his ejection from a street car of the company by the conductor thereof.

<p>In a petition for a writ of habeas corpus, verified by the petitioner’s oath as required by Rev. Stat. § 764, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence; but no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous.</p> <p>General allegations in such a petition that the petitioner is detained in violation of the Constitution and laws of the United States or of the particular State, and is held without due process of law, are averments of conclusions of law, and not of matters of fact.</p> <p>It is for the state court, having jurisdiction of the offence charged in a proceeding before it, and of the accused, to determine whether the indictment sufficiently charges the offence of murder in the first degree. Bergemann v. Backer, 157 U. S. 655, affirmed and applied.</p> <p>Independently of constitutional or statutory provisions allowing it, an appeal to a higher court of a State-from a judgment of conviction in a lower court is not a matter of absolute right; and as it may be accorded upon such terms as the State thinks proper, the refusal to grant a writ of error or to stay an execution does not warrant a Federal court to interfere in the prisoner’s behalf by writ of habeas corpus.</p> <p>When one of the jury by which a person accused of murder is convicted is an alien, and the accused takes no exception to his acting as a juror and makes no challenge, and on trial is convicted and sentenced, it is for the state court to determine whether the verdict shall be set aside, since as the disqualification of alienage is only cause of challenge, which may be waived, either voluntarily, or through negligence, or through want of knowledge.</p>

<p>On an appeal from a judgment of a territorial court, this court is limited to determining whether the facts found are sufficient to sustain the judgnient rendered, and to reviewing the rulings of the court on the admission or rejection of testimony, when exceptions thereto have been duly taken.</p> <p>This case comes within the general rule that the allowance, or refusal óf a ■ new trial rests in the sound discretion of the court to which the application is addressed.</p> <p>The decree and complaint, taken together, fully describe, and furnish ample means for identification of the property to which the defendant in error was adjudged to be entitled.</p> <p>The contention that the complaint did not aver a discovery of a vein or lode prior to the location under which the plaintiffs in error claim is wholly without merit.</p> <p>Likewise is the contention without merit that the discovery under which the defendant in error claims was of only one vein.</p> <p>Possession alone is adequate against a mere intruder or trespasser, without even color of title, and especially so against one who has taken possession by force and violence.</p> <p>Sundry exceptions as to the rulings of the court upon the admissibility' ' of testimony considered, and held to be immaterial, or unfounded.</p>

<p>ERROR TO THE DISTRICT COURT OE THE UNITED STATES EOR THE DISTRICT OE KENTUCKY.</p> <p>The plaintiff in error was indicted in the District Court of the United States for the District of Kentucky, for the crime of perjury as defined in section 5392 of the Revised Statutes.</p> <p>The defendant pleaded not guilty. The first and second counts related to certain statements by the accused, alleged to have been wilfully, falsely, and feloniously made, in a deposition, given, under oath, before G. C. Loomis, a special examiner of the Pension Bureau of the United States, such statements being material to an inquiry pending before the Commissioner of Pensions in reference to a claim of the accused for a pension from the United States. The third count set out another statement of the accused in the same deposition, and charged that he did not believe it to be true.</p> <p>The defendant was found guilty upon the fourth count of the indictment, which was as follows:</p> <p>“ And the grand jurors aforesaid, upon their oaths aforesaid, do further present that at Bowling Green, in the district aforesaid, on the seventh day of October, in the year of our Lord eighteen hundred and ninety-two, the matter of the hereinafter-mentioned deposition became and was material to an inquiry then pending before and within the jurisdiction of the Commissioner of Pensions of the United States, at Washington, in the District of Columbia; whereupon said William H. Markham did then, at said Bowling Green, wilfully and corruptly take a solemn oath before G. C. Loomis, then and there a special examiner of the Pension Bureau of the United 'Stafes, and then and there a competent officer and having lawful 'authority to administer said oath, that a certain written deposition then and there by said Markham subscribed was then and there true, and in giving said deposition said Markham was asked by said Loomis a question in substance and effect as follows, to wit, ‘Have you received any injury to forefinger of right hand since the war or since your discharge from the army ? ’ (by which said question said Loomis referred and said Markham well understood said Loomis to refer to the right hand of said Markham,) and in answer to said question said Markham then and there made and subscribed an answer and statement in substance and effect as. follows, to wit, ‘ No, sir; I never have; ’ which- said statement that said Markham never had received any injury to the forefinger of his right hand since his, said Markham’s, discharge from the army was then and there material to said inquiry,' and was then and there not true. Whereas in truth and in fact the said Markham had then and theretofore received an injury to the forefinger of his, said Markham’s, right hand, as he, the said Markham, then and there very well knew. And so the jurors aforesaid upon their oaths aforesaid say that said Markham did. commit wilful and corrupt perjury in the manner and form as in this count aforesaid, against,” etc. There was no demurrer to the indictment, nor any motion to quash either of the counts.</p> <p>The defendant moved for an arrest of judgment upon the following grounds: 1st. That the count upon which he was found guilty charged no offence under the statute. 2d. That its averments did not inform the court that any offence had been committed, nor show that Loomis, the examiner, was' authorized to administer the oath. alleged. 3d.. That the¡ averments did not set forth the proceeding or causé in which the defendant was charged to have given his deposition or made oath to the statement- alleged to. be false, in such manner as to shoif that the deposition and the ..alleged false statement were material to any inquiry or matter before the Commissioner of Pensions, nor to what said inquiry related, nor show that Loomis, special examiner, had any lawful authority to. swear or require the defendant to swear to the. deposition or statement averred to be false, nor for what purpose, nor upon what cause, or investigation of what claim,- or of any claim pending before any Department of the Government or in any court. 4th. That it did not aver facts sufficient to show the materiality of the oath or statement alleged to have been made. 5th. That the words charged to have been sworn to by defendant were not averred to have been sworn to wilfully and corruptly. 6th. That it failed to aver what charge was under investigation.</p> <p>The motion in arrest of judgment was overruled, and the accused was sentenced to make his fine to the United States by the payment of $5, and to be imprisoned at hard labor in the Indiana state prison, south, at Jeffersonville, Indiana, for the full period of two years from a day named. From that judgment the present writ of error was prosecuted.</p>

Held: that these facts took this case out of the operation of the established doctrine above stated and made of the transaction a mere device to give jurisdiction to the Circuit Court, and that it was a fraud upon that court, as well as a wrong to the defendants.

' The plaintiffs in error were indicted for the murder on January 15, 1895, in the Cherokee Nation in the Indian country, of one William Yandeveer, a white man and not an Indian. There were two counts in the indictment.

This was a motion to dismiss a writ of error sued out by the firm of E. B. Bartlett & Co., defendants in the court below, to review a judgment obtained against them in the Supreme Court of New York by the firm of Lockwood & McClintock, for a conspiracy to have certain cargoes of rags belonging to the plaintiffs condemned as unclean and infectious property.

This was a petition by Sarah Van Wagenen and others for the review and reversal of certain proceedings in the case of John M. Hanson v. The United States, and of a decree rendered therein, ordering a survey of the Hanson or Miles grant, made by the Surveyor General upon the petition of one Greeley, assignee in bankruptcy of Hanson, which said survey had been approved by a decree of the District Court of April 13, 1889.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.</p> <p>This was a bill in equity originally filed by Elizabeth Kirchoff, June 12, 1882, in the circuit court of Cook County, Illinois; against the appellant, to enforce the specific perform,ance of a certain agreement for the' conveyance to her of two lots of land in the city of Chicago.. The prayer of the bill was subsequently amended by the addition of a clause praying that the plaintiff might be allowed to redeem the premises according to the terms of said agreement.</p> <p>The controversy between these parties has been the constant subject of litigation since July, 1878, and in one form or another has been twice to the appellate court of Illinois, and three times to the Supreme Court of the State. The facts are somewhat complicated, but so far as necessary to the disposition of this case may be summarized as follows :</p> <p>‘On May 8, 1871, Julius Kirchoff, being engaged in the distillery business in Chicago, borrowed $60,000 of the Union Mutual Life Insurance Company, and to secure the payment thereof, executed, together with his wife Elizabeth, and her mother Angela Diversey, a joint judgment note for $60,000, and a trust deed covering certain real estate in Chicago belonging to Kirchoff and his wife, and certain other property, including a farm in Cook County, owned by Mrs. Diversey. The money received from the loan was put in the bank to the credit of the firm of Kirchoff. Bros. & Co., which soon after failed.</p> <p>In 1876, default having been made in the payment of interest and taxes, judgment was taken against Mrs. Diversey on the note, after certain unsuccessful negotiations towards funding the indebtedness into a new loan at a lower rate of interest, and on July 11, 1878, proceedings were commenced in the Circuit Court of the United States to foreclose the trust deed. The bill in addition sought to cure a misdescription of the property belonging, to Mrs. Diversey, who filed an answer denying the right of the company to cure the misdescription, and averring that the notes and mortgage were procured from her by misrepresentation.</p> <p>From this time the relation of the parties seems to have remained unchanged until June, 1879, when an agreement was reached by which the company released to Mrs. Diversey its claim upon forty acres of the land belonging to her, and she executed to it a warranty deed for the remainder of the premises. About the same time, Mrs. Kirchoff and her husband executed a quitclaim deed of all the property belonging to them, and included in the mortgage. The deed from Mrs. Diversey was immediately placed on record, but the deed from the Kirchoffs was withheld by the agent and attorney of the insurance company.</p> <p>It was claimed by Mrs. Kirchoff that, during the negotiations which culminated in the execution of the above deeds, it was agreed that the insurance company should reconvey to her two lots included in her deed, one of which was then occupied as a homestead, the other cornering upon it, but facing the other way; that the price at which the reconveyance should take place was their valuation at a previous appraisement made by one Kees, viz., $7500 and $2500 respectively, and that Mrs. Kirchoff was to execute in payment therefor her notes for $10,000, extending over a period of ten years, bearing interest at six per cent, and secured by a mortgage upon the two lots. It seems there were certain intervening claims on one of the lots, growing out of a sheriff’s deed, executed pursuant to a sale on a judgment against Mrs. Kirchoff, rendered subsequently to the original trust deed, but prior to the deed from Kirchoff and wife to the company, which rendered necessary a further prosecution of the foreclosure proceedings, in order that the company might obtain a good title to the premises, so as to convey a clear title to Mrs. Kirchoff and take from her a mortgage which would be a first lien thereon. It is claimed,that this matter was explained to Mr. Kirchoff, her husband and agent, and he was assured that the prosecution of the foreclosure proceedings would not in any manner affect the agreement which had.been made, but that, as soon as the company got a deed from the master in chancery, it would carry out its part of the contract by conveying to Mrs. Kirchoff the premises in question, and would then take the mortgage from her. She alleged that, relying upon this agreement, no defence was made to the foreclosure proceedings by her, and the same were prosecuted to a decree, and the master’s deed issued thereon to the insurance company January 21, 1882. The object of the bill in this case was to insist upon this right of redemption in accordance with its terms.</p> <p>The insurance company, on the other hand, contended, that an inspection of the record showed that no such agreement was ever concluded, and that the state court was bound by the decree of the Federal court foreclosing the mortgage, and had no jurisdiction to review it. It was not disputed that propositions similar to the so called agreement were discussed between the Kirchoffs and the agents of the insurance company, or that assurances were given by the latter' of the probable willingness of the insurance company to sell the land on the terms named; but it is claimed that when the insurance company was advised of the proposition, it was instantly and unequivocally declined* and this action of the company communicated to Mrs. Kirchoff in time to prevent any injury to her from the quitclaim deed. That, after having been thus fully advised, she elected to deliver the deed, and in that manner get the benefit of the release from her indebtedness.</p> <p>A demurrer was filed to the bill which was overruled, when defendant answered, denying the agreement for redemption set forth in t¿e bill, and also setting up the statute of frauds as a defence. The case coming on for a hearing upon pleadings and proofs, the bill was dismissed for want of equity. An appeal was taken to the state Supreme Court, which was dismissed upon the ground that the case should have gone to the appellate court. 128 Illinois, 199. Whereupon the complainant sued out a writ of error from the appellate court of the first district of Illinois to the circuit court of Cook County, and upon a hearing in the appellate court the decree of the circuit court was reversed, with directions to enter a decree in accordance with the opinion of the appellate court. 33 Illinois App. 607. This opinion was not sent up with the' record in this case. From the decree of the appellate court, the insurance company prosecuted an appeal to the Supreme Court of the State, which affirmed the decree to the appellate court. 133 Illinois, 368. To reverse that decision, this writ of error was sued out.</p>

This was a bill in equity filed by Maria E. Tallmadge against the appellants, to set aside and remove, as a cloud upon her title, a deed made by the appellants Richard JEL Miller, Elizabeth Houchens, and Ella A. Goudy, claiming to be heirs at law of one John L. Miller, deceased, dated August 30,1888, and purporting to convey to the appellant Kirby the property therein described.

In 1880, the Central Iowa Railway Company, which had become the owner, through foreclosure proceedings, of the railroad of the Central Railway Company of Iowa, leased to the Burlington, Cedar Rapids and Northern Company about eleven miles of said road, which lay between Manly Junction and Northwood, the northern terminus of the Central company’s road. The Burlington company took exclusive possession of the leased premises.

The plaintiff in error claimed the land in dispute in this controversy under an alleged preemption entry. The claim of the defendant in error rested upon a patent from the United States. The case is stated in the opinion of the court.

Held: that such a charge crosses the line which separates the impartial exercise of the judicial function from the region' of partisanship where reason is disturbed, passions excited, and prejudices are necessarily called into play. The case is stated in the opinion. Mr. A. H. Garland for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. Mr. Justice "White delivered the

This was a suit by Gill to recover of the United States the sum of $94,693.04 upon an implied contract for the use of certain machines covered by letters patent issued to the claimant.

<p>In an action against a railroad company brought by one of its employés to recover damages for injuries inflicted while on duty, where the evidence is conflicting it is the province of the. jury to pass upon the questions of negligence; but where the facts are undisputed or clearly preponderant, they are questions of law, for the court</p> <p>In this case, after a review of the undisputed facts, it is held that there can be no doubt that the injury which formed the ground for this action was the result of the inexcusable negligence of the company’s servant.</p>

Held: that there was no error in this so long as the citizen of another State receives the same measure of right as that awarded to citizens of Louisiana in regard to their property similarly situated.

Davis v. United States, 160 U.S. 469 (1895), is a criminal case establishing that in a federal case, the prosecution bears the burden of proof of sanity if an insanity defense is raised. It is a common law ruling that sets precedent in federal court, but is not a constitutional ruling interpreting the United States Constitution, so does not preclude states from requiring defendants to prove insanity, even to the point of requiring defendants to prove insanity beyond a reasonable doubt, as in Leland v. Oregon (1951).

<p>Circuit Courts of the United States have jurisdiction of actions in which the United States are plaintiffs, without regard to the value of the matter in dispute.</p>

Held: any rule of the court to the contrary notwithstanding. 25 Stat. 857 . Mr. Justice Gbay, after stating the case, delivered the

Held: “We are satisfied that the agreements set up in the bill are the valid contracts of the defendant. Though the plaintiff was unable to produce any resolution or order in writing by the trustees or board of directors of the defendant corporation, and though the seal used was the private seal of one of its officers, instead of the corporate seal, neither of these is essential to the validity of the contract.

Held: That, in the absence of statutory direction or reported decision to *532 the contrary, this court must find the law of New Jersey applicable to this case in the decree of the chancellor, and that the remedy of the defendant, if he felt himself aggrieved, was by appeal; (2) That the opinion of the expert could not control the judgment of the Court in this respect; (3) That the New York courts, in dismissing the…

On March 3, 1891, Congress passed an act, 26 Stat. 851, c. 538, vesting certain jurisdiction in the Court of 'Claims, the material, portion of which is found in the first section, and reads as follows: “ That in addition to the jurisdiction, which now is, or may hereafter be, conferred upon the Court of Claims, said court shall have and possess jurisdiction and authority to inquire into and finally adjudicate, in the manner provided in this act, all claims of the following…

Frank Carver was convicted of the murder of Anna Male-don in the Circuit Court of the United States for the Western District of Arkansas, and sentenced to be hanged, whereupon he sued out this writ of error. The fatal wound was inflicted, by the discharge of a pistol on the night of March 25, 1895, at Muscogee, Creek Nation, in the Indian country, but the death occurred at Fort Smith, Arkansas, May 19, 1895.

Held: That the plaintiff was entitled to a decree setting aside and annulling the deed purporting to have been executed by P. to M., the deed from B. to P., and the deed to B. from P. and D., leaving the title to the premises in question where it was prior to the execution of the last named deed; such decree to be without prejudice to any valid rights acquired by parties who purchased in good faith from P. while the fee…

Held: as a conclusion of law, that the claimant was entitled to recover the sum of $372.60, for which judgment was entered, and the Government appealed. Mr. Assistomb Attorney General Dodge and Mr. Cha/rles C. Binney for appellants. Mr. Robert B. Lines and Mr. John Paul Jones for appellee.

<p>Any claim made against an Executive Department, “involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any Executive Department in the adjustment of a class of cases, without regard to the amount involved in the. particular case, or where any authority, right, privilege or exemption is claimed or denied under the Constitution of the United States,” may be transmitted to the Court of Claims by the head of such Department under Rev. Stat., § 1063, for final adjudication; provided, such claim be not barred by limitation, and be one of which, by reason of its subject-matter and character, that court could take judicial cognizance at the voluntary suit of the claimant.</p> <p>Any claim embraced by Rev. Stat., § 1063, without regard to its amount, and whether the claimant consents or not; may be transmitted under the act of March 3,1883, c. 116, to the Court of Claims by the head of the Executive Department in which it is pending, for a report to such Department of facts and conclusions of law for “ its guidance and action.”</p> <p>Any claim embraced by that section may, in the discretion of the Executive Department in which it is pending, and with the expressed consent of the plaintiff, be transmitted to the Court of Claims, under the act of March 3, 1887, c. 359, without regard to the amount involved, for a report, merely advisory in its character, of facts or conclusions of law.</p> <p>In every case, involving a claim of money, transmitted by the head of an Executive Department to the Court of Claims under the act of March 3, 1883, c. 116, a final judgment or decree may be rendered when it appears to the satisfaction of the court, upon the facts established, that the case is one of which the court, at the time such claim was filed in the Department, could have taken jurisdiction, at the voluntary suit of the claimant, for purposes of final adjudication.</p> <p>Whether the words “ or matter ” in the second section of that act embrace any matters, except those involving the payment of money, and of which the Court of Claims under the statutes regulating its jurisdiction could, at the voluntary suit of the claimant, take cognizance for purposes of final judgment or decree, is not considered.</p> <p>As the claim of the State of New York, the subject of controversy in this case, was presented to the Treasury Department before it was barred by limitation, its transmission by the Secretary of the Treasury to the Court of Claims for adjudication was only a continuation of the original proceeding commenced in that Department in 1862; and the delay by the Department in disposing of the matter before the expiration of six years after the cause of action accrued, could not impair the rights of the State.</p> <p>The $91,320.84 paid by the State of New York for interest upon its bonds issued in 1861 to defray the expenses to be incurred in raising troops for the national defence was a principal sum which the United States agreed to pay, and not interest within the meaning of the rule prohibiting the allowance of interest accruing upon claims against the United States prior to the rendition of judgment thereon.</p> <p>The claim of the State of New York for money paid on account of interest to the commissioners of the Canal Eund, is not one against the United States for interest as such, but is a claim for costs, charges and expenses, properly incurred and paid by the State in aid of the general government, and is embraced by the act of Congress declaring that the States would be indemnified by the general government for- money so expended.</p>

Held: That Mrs. Y. must stand upon her legal mortgage, resulting from the receipt of her paraphernal property, and recognized by the judgment of 1881, decreeing a separation of property; or upon a judicial mortgage arising from that judgment; or on the contract between' herself and the residuary legatee of E. H.; (2) That if her mortgage be held to be legal or judicial, its existence was not a bar to the confirmation of a…

Gregory, a citizen of Illinois, filed his bill in the Supreme Judicial Court of Massachusetts, December 16¡, 1884, against Frederick A. Pike, a citizen of Maine, and 'William.’ O. N. Swift, a citizen of Massachusetts, to recover two certain nonnegotiable promissory notes made by Swift, held by Pike, and alleged by Gregory to be his property.

Held: that that court, in rendering such judgment, denied no title, right, privilege, or immunity specially set up or claimed under the laws of the United States, and that the writ of error must be dismissed. This was an action of assumpsit brought by the City Bank of Portage against the Chemical National Bank of Chicago,in the Superior Court of Cook County, Illinois.

Held: That, as the service was practically a continuous one, and his second discharge occurred at the place of his original enlistment, he was not entitled to his commutation'for travel and subsistence to the place Of his second enlistment.

<p>ERROR TO THE SUPREME COURT OP THE STATE OF KANSAS.</p> <p>This was a writ of error to the Supreme Court of Kansas to review a judgment of that court affirming the judgment of the District Court of Anderson County, which was in favor of the defendants, and for costs against plaintiff. The action was brought to restrain the defendants from levying upon the property of the plaintiff in error for the purpose of collecting a warrant, issued for the collection of taxes upon the stockholders of the bank on the ground that certain deductions claimed on the part of some of the stockholders from the assessment upon their shares of stock were not allowed them, as they claimed they should have been, under the statutes of the' United States.</p> <p>The petition of the plaintiff in error stated the facts upon which it was alleged the cause of action arose, and the defendants voluntarily entered' appearance in the cause, and thereupon an agreement was signed by the parties to the action setting forth the facts upon which the case was to be tried. The material portion of the agreement set forth that the plaintiff was a corporation organized under the laws of the United States, with its office at the city of Garnett, Anderson County, Kansas. The defendant Ayers was sheriff of the county of Anderson during all the time mentioned in the complaint, and the defendant Hargrave during such time. was treasurer of' that county. The plaintiff was a national bank with a capital stock of $75,000, divided into 750 shares of the par value of $100 each; the actual valu'e of such shares of stock was $100 per share on the first day of March, 1890. On the day last named certain stockholders, named in the statement, were justly indebted and owed in good faith the several sums of money set opposite their respective names in plaintiff’s petition. These debts were not owing to any person, company or corporation as depositors in any bank or banking association, or any person or firm engaged in the business of banking in Kansas or elsewhere, nor were they debts owing on account of any of the things named in the Kansas statute hereináfter alluded to. The stockholders owing such debts duly complied with the statutes of Kansas in asking to be allowed to deduct from the value of their stock the amount of the debts which they were justly owing in good faith, as above stated. This was refused by the proper authorities, and an assessment was made against the named stockholders of the plainti:ff without allowing any such deductions as claimed, and the taxes so levied on the stock held by the stockholders amounted to the sum of about $2000. The debts of the stockholders were all of the kind and character that could be deducted from “credits” under the statutes of Kansas, and due and legal demand was made to have such debts deducted from the value of the stock, which was refused. The debts were justly due and owing on the first of March, 1890, and no part of them had been deducted from the “ credits ” at any time or place during that year. The plaintiff paid the taxes assessed against its stockholders who did not claim any deductions, and the only taxes remaining due were those assessed against the named stockholders who claimed deductions for their debts, as above stated. Other facts were agreed upon which it is not necessary to mention for the purpose of discussing the question involved in this case.</p> <p>Several statutes of the State of Kansas are set forth, the first being the one which permits an action of this kind to be brought for the purpose of enjoining an illegal' levy of any tax,- charge, or assessment. Section 6847, General Statutes of Kansas, .(to be found in vol. 2 of those laws,) defines the different terms used in the chapter on taxation. In this section the term “credit” is defined as follows: “The term credit ’ when used in this act shall mean and include every demand for money, labor, or other valuable thing, whether due or to become due, but not secured by lien on real estate.” Section. 6851 of-the same General Statutes permits a deduction of debts from “ credits.” That part of the section bearing upon this subject is as follows:</p> <p>“Debts owing in good faith by any person, company or corporation may be deducted from the gross amount of credits belonging to such person, company or corporation: Provided, Such debts are not owing to any person, company or corporation as depositors in any bank or banking association, or with any person or firm engaged in the business of banking in this State or elsewhereand the person, company or corporation making out the statement of personal property to be given to the assessor, claiming deductions herein provided for, shall set forth both the amount and nature of the credits, and the amount and nature of his debts sought to be deducted; but no person, company or corporation shall be entitled to any deduction on account of any bond, note or obligation given to any mutual insurance company, or deferred payment, or loan for a policy of life insurance, nor on account of any unpaid subscription to any religious, literary, scientific or benevolent institution or society: Provided, That in deducting debts from credits no debt shall be deducted where said debt was created by a loan on government bonds or other taxable securities.”</p> <p>Section 1, chapter 84, of the Session Laws of Kansas for 1891 provides for the taxation of bank stock, and- is as follows:</p> <p>“ Section. 1. That section 6868 of the General Statutes of 1889 be amended as follows: Sec. 6868. Stockholders in banks and banking associations and loan and investment companies, organized under the laws of this State or the United States', shall be assessed and taxed on the true value of their shares of stock in the city or township where such banks, banking associations, loan ór investment companies are located; and the president, cashier or other managing officer thereof shall, under oath, return to the assessor on demand a list of the names of the stockholders and amount and valué of stock held by each, together with the value of any undivided profit or surplus; and said banks, banking associations, loan or investment companies shall' pay the tax assessed upon said stock and undivided profits or.surplus, and shall have a lien thereon until the same is satisfied: Provided, That if from any causes the taxes levied upon the stock of any banking association, loan or investment company shall not be paid by said corporation, the property of the individual stockholders shall be held liable therefor: Provided f urther, That if any portion of the capital stock of any bank or banking association or loan or investment company shall be invested in real estate, and said corporation shall hold a title in fee simple thereto, the assessed value of said real estate shall be deducted from the original assessment of the paid-up capital stock of said corporation, and said real estate shall be assessed as other lands or lots: And provided further, That banking stock or loan and investment company stock or capital shall not be assessed at any higher rate than other property : And provided further, That the provisions of this act shall apply to all mutual, fire and life insurance companies or associations having assets, accumulations, money or credits, and doing business under the laws of this State: And provided further, That such assets, money, and credits, held and under the control of such mutual fire and life insurance companies or associations, shall be subject to assessment and taxation.”</p> <p>These are the only sections of the Kansas statute that the plaintiff in error claims have any bearing upon this case, and counsel for plaintiff in error states that the only really important question herein is the right of stockholders of a national bank to treat their stock therein as a credit from which chey may be allowed to deduct the debts which they are owing, in good faith.</p> <p>Upon the above agreed statement of facts the court, after due consideration, found generally for the defendants, and entered judgment in their favor for the costs of this action against the plaintiff, to which finding and judgment of the court plaintiff at the time duly excepted. The plaintiff also filed its motion for a new trial, which motion was by the court overruled, and duly excepted to by plaintiff.' The summons in error issued from the Supreme Court of Kansas was duly served, and the record removed into that court for review, where, after argument, the judgment of the court below was affirmed with costs. 53 Kansas, 463, upon the opinion in Dutton v. Bank &c., 53 Kansas, 440. The plaintiff thereupon sued out a writ of error from this court, directed to the Supreme Court of Kansas, and thé record is now here for review.</p>

<p>PETITION FOR REHEARING.</p> <p>The case is stated in the opinion,</p>