Volume 192 — United States Reports

The facts of this case, which involved the power of the Commissioner of Immigration at the Port of New York to detain a citizen of 'Porto Rico as an alien immigrant under the provisions of the act of March 3, 1891, 26 Stat. 1084, are stated in the opinion of the court. The commissioner could have no jurisdiction unless the petitioner were an alien. Act of August 28, 1894, 28 Stat. 390. The Martonelli Case, 63 Fed.

<p>ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.</p> <p>The facts are stated in the opinion.</p>

This is a writ of error to the Supreme Court of the State of New York to review a judgment of that court affirming the assessment by the Comptroller of the State of New .York of a certain tax against the -relator, The 'Pennsylvania- Railfoad Company, The contention of the plaintiff in error is that .the tax, which is a franchise tax imposed under appropriate statutes of New York~upon the company for carrying on the business of running cabs and carriages for hire between…

<p>ERROR TO THE ST. LOUIS COURT OF APPEALS OF THE STATE OF MISSOURI.</p> <p>The action wherein was entered the judgment which is sought to be reviewed by this writ of error was begun on December 20, 1900, by the filing in the Circuit Court of the city of St. Louis of a petition on behalf of the Wabash Railroad Company, the plaintiff in error in this court. The defendants named in the petition were Alexander Flannigan and Virgil Rule, the present defendants in error. The cause of action was ultimately embodied in a third amended petition, filed, by leave of court, on April 15, 1901. From a recital made in the opinion of the St. Louis Court of Appeals the following summary of the allegations of that pleading is made:</p> <p>After asserting its existence as a consolidated corporation from a named date, plaintiff alleged that it was indebted, on June 10, 1891, to one Tourville, for wages, in the sum of $81.98; that an action to recover sjuch indebtedness was instituted by Tourville in a court of the State of Missouri on the date named, and that a judgment was,rendered in favor of Tourville, which had been finally affirmed by said court; that in April, 1895, the defendant Flannigan recovered judgment against Tourville and the railroad company in a court of the State of Illinois, the railroad company being made garnishee in the action on account of the original indebtedness of $81.98 to Tourville, above mentioned; that Tourville had assigned the judgment obtained by him in the Missouri court to the defendant Virgil Rule, and that both the defendants Flannigan and Rule were undertaking to collect their respective judgments from the railroad company. The court was asked to permit a deposit in court of .the sum of $81.98 and interest, and to require the defendants to interplead and to have determined their rights in respect-to such deposited sum. The defendant Rule was served with summons, and a written appearance was filed on behalf of Flannigan, who was a nonresident.'</p> <p>In stating the subsequent steps in the litigation we shall omit reference to the facts which clearly have no relevancy to the alleged Federal questions.</p> <p>Following the filing of the third amended petition an application was made for the allowance of a temporary injunction against the defendants, prohibiting them from attempting to enforce their respective judgments pending the determination of the action. An order was thereupon made temporarily restraining' the defendants, and requiring them “to show cause, if any they have, why a temporary injunction should not be issued herein, and the relief prayed for in said third amended petition should not be granted.” A “return”- to this order to show causé was filed on behalf of the defendant Rule, and therein were set forth numerous reasons why a temporary-injunction should not issue and the relief prayed in the third amended petition should not be granted. Flannigan answered, admitting each and every allegation therein, and claiming priority of lien and right of.payment out of the so-called fund of $81.98. Thereafter, on April. 22, 1901, the plaintiff filed a motion for the relief prayed' for, notwithstanding the aforesaid return of Virgil Rule, and numerous reasons were stated in support of the motion. On April 29, 1901, the court entered the following order:</p> <p>“Now at this day come the parties herein by their respective attorneys, and the order issued herein on April 15, 1901, commanding the defendants to show cause why a'temporary injunction should not be granted against them, coming on for hearing upon the pleadings, affidavits' and proofs adduced, and the court having duly considered the same, and being sufficiently advised of and concerning the premises, doth order that the prayer of plaintiff’s bill be and is denied. It is further ordered by the court that the restraining order granted against defendants on April 15, 1901, be and is hereby dissolved.”</p> <p>A motion for rehearing was filed and overruled. The motion was based upon the assumption that the order in question operated as a judgment dismissing the petition. The fifteenth and last ground of the motion and the first and only specific reference made to the Constitution of the United States in the proceedings up to that time was as follows:</p> <p>“Fifteenth. Because the court erred in refusing to give full faith and credit to the judgment of a sister State, as required by the Constitution and laws of the United States.”</p> <p>On appeal the St. Louis Court of Appeals entered a judgment affirming in all things the “judgment” of the trial court. 75 S. W. Rep. 691. No allusion was made in the opinion to any constitutional question. Application was then made to transfer the cause to the Supreme Court of Missouri, upon the claim that it involved “a construction of section one of article four of the Constitution of the United States.” The application was denied. A petition was next'presented to the presiding judge of the St. Louis Court of Appeals, praying the allowance of a writ of error from this court. The petition was overruled, for the following stated reasons:</p> <p>“In Wabash Railroad Company v. Tourville, 179 U. S. 322, the judgment herein involved came under review. The validity of the Tourville judgment, as we understand the opinion, was 'sustained, and its priority over that of Flannigan was adjudged. In the face of this decision we deny the writ.”</p> <p>A writ of error was afterwards allowed by á justice of this court. The error assigned embraced the following alleged Federal questions:</p> <p>“19. Your petitioner charges and avers that in said suit, while the same was pending in said Circuit Court and in said Court of Appeals, the construction of the following clauses of the Constitution of the United States was drawn in question, viz:</p> <p>“The following clause of section 1,- article IV: ‘Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.’</p> <p>“Section 11, article IV: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens in the ' several States.’</p> <p>“The following clause of section 1, article XIV, of amendments to the Constitution: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdictVn the equal protection of the law.’</p> <p>“Your petitioner says that the decisions of the courts on said clauses of the Constitution in said cause were against the rights, . title, privilege and exemption specially set up and claimed under said clauses of said Constitution by your petitioner.”</p> <p>The court has ample jurisdiction to hear and determine this controversy by reason of the constitutional question apparent upon the face of the. record. Insurance Co. v. Needles, 113 U. S. 574; Carpenter v. Strange, 141 U. S. 87; Water Co. v. Green Bay, 142 U. S. 269; Gordon v. Bank, 144 U. S. 97; Cooke v. Avery, 147 U. S. 375; Powell v. Brunswick County, 150 U. S. 440; Scott v. McNeal, 154 U. S. 34; Sayward v. Denny, 158 U. S. 180; Railway v. Chicago, 166 U. S. 226; Canal Co. v. Paper Co., 172 U. S. 58; Water Power Co. v. Railway Co., 172 U. S. 475.</p> <p>The judgment of a sister State may become a Federal question: First. Where the existence or validity of such judgment is in dispute in a state court, and the decision impairs its integrity, or existence; Second.- Where the.effect of the judgment according to the law and usage of the State where rendered is in dispute in a state court, and the decision is adverse “to the claimed or contended effect of such, judgment.” The case at bar falls under the latter instance. Crapo v. Kelley, 88 U. S. 610; Dupasser v. Rochersar, 21 Wall. 130; Live Stock Company v. Butchers Union, 120 U. S. 141; Huntington v. Attrill, 146 U. S. 657; Railway v. Sturm, 174 U. S. 710; Green v. Buskirk, 5 Wall. 310.</p> <p>By denying the relief prayed for, the court below deprived the plaintiff-in error of its property “without due process of law,” in violation of the Fourteenth Amendment to the Constitution of the United States. Railway Co. v. Sturm, 194 U. S. 710.</p> <p>' Plaintiff in .error ■ -was entitled to the relief prayed for and Flannigan was entitled to a hearing on the issue of priority.</p> <p>A bill of interpleader may be properly filed in any cause, as well after the adverse claims to the fund have been reduced to judgment, as prior to that time. Cheever v. Hodgson, 9 Mo. App. 565; Dodds v. Gregory, 51 Mississippi, 351; Woodruff v. Taylor, 20 Vermont, 65; Provident Savings Inst. v. White, 115 Massachusetts, 112; 2 Story Eq. Jurisprudence (13th ed.), 137 note; Hamilton v. Marks, 5 DeGex & Smale, 638; 13 Eng. Law & Eq. 321’; Johnson v. Maxey, 43 Alabama, 521; Newhall v. Kastens, 70 Illinois, 156; Mills v. Townsend, 109 Massachusetts, 115; Robards v. Clayton, 49 Mo. App. 610; Building Association v. Joy, 56 Mo. App. 433.</p> <p>The plaintiff has never been guilty of laches.</p> <p>The decision of the St. Louis Court of Appeals was upon the ground that all the parties to the bill of interpleader had had their day in court, and that the questions raised were res adjudícala. This is not a Federal question and this court is, therefore,without jurisdiction. Northern Pacific Railroad v. Ellis, 144 U. S. 464; Hammond v. Johnson, 142 U. S. 73; Hickman v. Fort Scott, 141 U. S. 415; Chaffin v. Taylor, 116 U. S. 367; Clark v. Keith, 106 U. S. 464; Peck v. Sanderson, 18 How. 42.</p> <p>In order to give this court power to revise the judgment of a state court it must appear upon the transcript that the constitutional question was raised by the pleadings and decided against plaintiff in error. Oxley v. Butler Co., 166 U. S. 657, 658; Hoydt v. Sheldon, 1 Black, 518, 521; Maxwell v. Newbold, 18 How. 511.</p> <p>This court will not review the judgment of a state court except upon the decree of the highest court in the State. Rev. Stat. U. S. sec. 709; Farnsworth v. Montana, 129 U. S. 104; Desty’s Fed. Proc. sec. 223.</p> <p>The Supreme Court of Missouri is the highest court in that State having jurisdiction in constitutional questions. Constitution of Missouri, art. 6, sec. 12; State v. St. Louis Ct. of App., 97 Missouri, 296, 299; State v. Caldwell, 57 Mo. App. 447; In re Essex, 44 Mo. App. 289.</p> <p>The bill of interpleader does not state facts sufficient to constitute a cause of action against defendants, for the following reasons:</p> <p>It is essential to a bill' of interpleader that the plaintiff shall make known his condition as a stakeholder by bringing a suit within a reasonable- time after being advised of the double claims against him. Cheever v. Hodgson, 9 Mo. App. 565; Dodds v. Gregory, 61 Mississippi, 351; McDevitt v. Sullivan, 8 California, 592; Union Bank v. Kerr, 2 Md. Ch. 460; Ency. P. & P. 462 k; Barnes v. Bamberger, 196 Pa. St. 123; Brackett v. Graves, 51 N. Y. St. Rep. 895.</p> <p>It is an essential to a bill of interpleader that the right of either defendant to the fund should not have been previously determined by'a judgment at law against the plaintiff. McKinney v. Kuhn, 59 Mississippi, 186; Risher v. Roush, 2 Missouri, 95; French v. Robrchard, 5 Vermont, 43; Holmes v. Clark, 46 Vermont, 22; Mitchell v. N. W. Mfg. Co., 26 Ill. App. 295; Carroll v. Parks, 1 Baxt. 269; Yarborought v. Thompson, B. S. & M. 291; Haseltine v. Brickley, 16. Gratt. 116; Cornish v. Tanner, 1 Young & J. 333; Prov. Ins. Co. v. White, 115 Massachusetts, 112.</p> <p>A bill of interpleader must show that the plaintiff is ignorant of the rights of the parties who are called upon to interplead. Ency. P. & P. 465, n. 2; Barker v. Barker, 42 N. H. 78; Shaw v. Coster, 8 Paige; 339; Morgan v. Fillmore, 18 Abb. Pr. 219; Mohawk, etc., R. Co. v. Chute, A Paige, 384; Pfister v. Wade, 56 California, 43; Illingworth v. Rowe, 52 N. J. Eq. 360; Trigg v. Hitz, 17 Abb. Pr. 436 ; Del., etc., R. R. Co. v. Corwith, 16 Civ. Pro. Rep. (N. Y.) 312; Heckmer v. Gilligan, 28 W. Va. 750.</p> <p>A judgment debt of one jurisdiction is not subject to a bill of interpleader in another jurisdiction. Crane v. McDonald, 118 N. Y. 657; Snodgrass v. Butler, 54 Mississippi, 45; Fulton v. Chase, 6 N. Y. Supp. 126; Gibson v. Goldwaite, 7 Alabama, 281; Stone v. Reed, 152 Massachusetts, 179; Boston, etc., v. Skillings, 132 Massachusetts, 418; Fairbanks v. Bilknap, 135 Massachusetts, 179; Kyle v. Mary Lee Coal Co., 112 Alabama, 606; Morristown v. Binnings, 26 N. J. Eq. 345; Bartlett v. Sutton, 23 Fed. Rep. 257.</p> <p>The Circuit Court had no power to enforce its judgment against the person of defendant Flannigan, hence a temporary injunction as against him would have been wholly without effect, unless he chose to obey it. Rev. Stat. Mo. 1899, sec. 598d; Sheedy v. Second Nat. Bank, 62 Missouri, 17.</p> <p>The Missouri court would have no power to decree that the judgment of the Illinois court was void or that it was not void. Carpenter v. Strange, 141 U. S. 88.</p> <p>A court of one jurisdiction cannot enjoin the collection of a judgment of another court of competent jurisdiction, in the absence of any allegation of fraud in obtaining such judgment. Scrutchfield v. Souter, 119 Missouri, 621; Nelson v. Brown, 23 Missouri, 13; Keith v. Plemmons, 28 Missouri, 104; Pettus v. Elgin, 11 Missouri, 411; Mellier v. Bartlett, 89 Missouri, 137; Haehl v. Wabash R. Co., 119 Missouri, 325; State ex rel. v. Eggers, 152 Missouri, 487.</p>

Certain figures representing various saints, and also two figures of adoring angels, as specified in the collector’s letter to .the board of general appraisers, were, in March, 1899, specially imported into the port of New York in good faith, for the use and by the order of societies incorporated or established solely for religious purposes. The importers claimed the figures were entitled to free entry under paragraph 649 of the tariff act of 1897. 30 Stat. 151, 201.

Held: that if the amount of the license fee fixed by the ordinance was not reasonable the ordinance was void and neither the court nor. the jury could fix any other amount.

The plaintiff in error seeks to review the judgment of the Supreme Court of Pennsylvania, which affirmed the judgment of the Superior Court of that State, which in its turn affirmed the judgment of the Court of Common Pleas of Lackawanna County, in favor of the defendant in error kian action brought by it to recover the amount of a license fee imposed upon all telegraph, telephone and electric light companies having poles and wires in the borough..

Held: that a license tax was not within the exemption of the bank from any tax upon its capital, the one being a charge for the privilege, of carrying on the business, and the other an exemption of a part of the property of the bank from taxation.

This action was brought in the Eighteenth Judicial District Court, parish of Acadia, State of Louisiana, by plaintiff in error to have himself declared the owner of a tract of land containing 870.06 acres, described as section 41, township 7 south, range ' 1 east.

The facts are stated in the opinion. This ordinance is unreasonable, arbitrary, partial and oppressive; the power, however, to adopt it was expressly conferred by the general assembly upon he city council of the city of Denver by clause 5 of sub. 12, sec. 20, of the charter.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.</p> <p>The facts are stated in the opinion.</p>

<p>ERROR TO TflE SUPREME COURT OP THE STATE OP WASHINGTON.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL PROM THE'. SUPREME .COURT OP THE TERRITORY OP ARIZONA.,</p> <p>The facts are stated in. the opinion.</p> <p>Paragraph 837, Rev. Stat. Arizona (1887), is directory and not mandatory. Sutherland on Stat. Con. §448; Black on Interp. of Laws, § 126; Endlich on Interp. § 436; 23 Am. & Eng. Ency. (1st ed.) 458; Rawson v. Parsons, 6 Michigan, 400; People v. Doe, 1 Michigan, 451; Gomer v. Chaffe, 5 Colorado, 383; § 201 C. C. Colorado, 1877; Aspen County v. Billings, 150 U. S. 31; Broad v. Murray, 44 California, 228, construing § 632, California Code; Pearce v. Stickler, 49 Pac. Rep. 727; 14 Am. & Eng. Ency. 902; Larson v. Ross, 56 Minnesota, 296; Gribble v. Livermore, 64 Minnesota, 296.</p> <p>In Dominus Rex v. Ingram, 2 Salk. 594, it is held that the failure of the magistrate to perform his duties within the time required by law did not determine his authority to perform them, and such has been the rule ever since. The following cases from different States sufficiently show this to be the case. People v. Cook, 14 Barb. (N. Y.) 259, 290; Gilleland v. Schuyler, 9 Kansas, * 569, * 587; Shaw v. Orr, 30 Iowa, 355 ; Bell v. Taylor, 37 La. Ann. 56; Neal v. Burrows, 34 Arkansas, 491,; McCarver v. Jenkins, 2 Heisk. 629; Boykin v. State, 50 Mississippi, 513; McBee v. Hoke, 2 Speers, 138; State v. Carney, 20 Iowa, 82; Huecke v. Milwaukee, 69 Wisconsin, 401; State v. Pitts, 58 Missouri, 556; State v. Smith, 67 Maine, 328; Ex parte Holding, 56 Alabama, 458; Wood v. Chapin, 13 N. Y. 559; Gaston v. Scott, 5 Oregon, 48. McKun v. Ziller, 9 Texas, 58 ; Bass v. Hays, 38 Texas, 128; Ruff v. Hand, 24 Pac. Rep. (Arizona) 257, are not controlling in this case.</p> <p>Paragraph 842, Rev. Stat. Arizona does not of itself purport to render a judgment denying the motion for a new trial at the expiration of the term at which the motion is made.</p> <p>The refusal or neglect of a court to act cannot be reviewed on appeal. Green v. Shumway, 14 Pac. Rep. 863; Chambers v. Astor, 1 Missouri, 191. Only judicial action can be reviewed by writ of error or appeal. Gordon v. United States, 117 U. S. 697, 704.</p> <p>It is only from judicial decisions that appellate. power is given to the Supreme Court. See, also, Sanborn v. United States, 27 C. Cl. 485; Hicks v. Murphy, 1 Mississippi, (Walker), 66; Phelps Co. v. Bishop, 46 Missouri, 68; Ex parte Caldwell, 3 Baxter, 98; Inhabitants of Weymouth, 56 Massachusetts, 335; Bower v. Cook, 39 Georgia, 27.</p> <p>If, however, paragraphs 837 and 842, be regarded as mandatory and self-executing, they would not apply to the case at bar, as the delay here was caused by the order of the judge continuing the cause, and is, in no way, attributable to counsel or to the plaintiff. Evans v. Rees, 12 Adol. & El. 167; Freeman v, Tranah, 74 E. C. L. 406, 415; Elliott on Appellate Procedure, § 117; Jackson v. Carrington, 4 Exch. 41; Boody v. Watson, 64 N. H. 169; S. C., 9 Atl. Rep. 794, 814, citing Edes v. Boardman, 58 N. H. 580, 592; Burke v. Concord R. R., 61 N. H. 160, 233; State v. Hayes, 61 N. H. 264, 330; Sargent v. School District, 63 N. H. 528, 530; 2 Atl. Rep. 641; Whitney v. Whitney, 14 Massachusetts, 88, 92; The Generous, 2 Dod. 322; Hall v. Sullivan R. R., 21 Month. Law Rep. 138; Lewis v. Commissioners, 16 Kansas, 102; Dwarris’s Statutes, 124; Mattingby v. Boyd, 20 How. 128; Broome’s Legal Maxims, 86, 89; Gray v. Brignardello, 1 Wall. 627, 636; Fishmongers Co. v. Robertson, 3 M. G. & S. 970.</p> <p>Sections 837, 842, Arizona Revised Statutes, do not apply to cases in which the hearing of the motion has been continued by order of court. Caswell v. Ward, 2 Douglass (Mich.), 374; Burris v. Wise, 2 Arkansas, 33, 41; Caughlin v. Blake, 55 Iowa, 634; Burl v. Williams, 24 Arkansas, 91; Spreckels v. Hawaiian Co., 117 California, 377; Wright v. Superior Court, Supreme Court, California, June 26, 1903.</p> <p>If the decision of the Supreme - Court of Arizona be correct as to the interpretation of the statutes of Arizona, the statutes are void as an attempted usurpation by the Legislature of the judicial functions. §§ 1846, 1864, 1865, 1866, 1868, 1908, Rev. Stat. U. S. as' to power of courts in Arizona; Kilbourn v. Thompson 103 U. S. 168; Butler v. Saginaw County, 26 Michigan, 22, 27.</p> <p>The creation of a department for the exercise of the judicial power constitutes of itself a delegation to that department of all the judicial power of the sovereignty except as otherwise limited by the Constitution itself. Greenough v. Greenough, 11 Pa. St. 489; Alexander v. Bennet, 60 N. Y. 204; Van Slyke v. Ins. Co., 39 Wisconsin, 390; Cooley on Const. Law, 35, 104.</p> <p>The general principle (being that a grant of general powers. to one department of government impliedly excludes all other departments of government from the exercise of the .powers granted to the first. Montesquieu, Esprit des Lois, 11, c. 6; Story on Const. 518, 525.</p> <p>As to what a judgment is, see Black.’s Law Dict.; 3 Blackstone, 395; Bouvier’s Law Dictionary; N. Y. Code, § 400; Pennsylvania v. Wheeling Bridge Co., 18 How. 440; State v. Fleming, 46 Am. Dec. 73; 7 Humph. 152; Ex parte Schrader, 33 California, 279; Sinking Fund Cases, 99 U. S. 761; Jones v. Perry, 10 Yerger, 59; S. C., 30 Am. Dec. 430; Merrill v. Sherburne, 8 Am. Dec. 52, 56; S. C., 1 N. H. 199; Taylor & Co. v. Place, 4 R. I. (1 Ames) 324, 337; De Chastellux v. Fairchild, 53 Am. Dec. 570; S. C., 15 Pa. St. 18; Young v. State Bank, 58 Am. Dec. 630; S. C., 4 Indiana, 301; Officer v. Young, 26 Am. Dec. 268; S. C., 5 Yerger, 301; Hoke v. Henderson, 25 Am. Dec. 675, 686; S. C., 4 Devereux’s Law, 1; Saunders, v. Cabaniss, 43 Alabama, 173; Sedg. on Stat. & Con. Law, 166; Cooley’s Con. Lim. * 91; Marpole v. Cather’s Admr., 78 Virginia, 239.</p> <p>' If the construction placed by the Supreme Court of Arizona upon paragraphs 837 and 842 be correct, these statutes are void, being in conflict with section 1866, U. S. Revised Statutes, the same being section 33 of. the Organic Act of Arizona. Ex parte Lathrop, 118 U. S. 113, 117.</p> <p>The grant of common law and chancery jurisdiction to the District Court certainly gives to that court power to' hear and determine motions for a new trial. The origin and history of the practice of granting hew trials is obscure, principally on account of its antiquity. Bouvier’s Law Dict. New Trial; Blackstone, Book III, 387; Graham & Waterman on New Trials; Queen v. Bewaley, 1 P. Wms. 207, 213; Witham v. Earl of Derby, 1 Wils. 48, 56; United States v. Hawkins, 10 Pet. 125, 131; Wood v. Gunton, 1665, Michealmas Sup. Style, 466; Bright v. Eynon, 1 Burr. 391.</p> <p>The right of a party to move ’for a new trial and the power of the court to determine such motion-w,as well established at common law prior to the American Revolution. When common law jurisdiction was granted by the organic act to the District Court of the Territories, this grant carried with it the power to hear and determine motions for new trials as that was á well recognized power of. common law courts at the time of the grant of such power.</p> <p>Paragraph 837, Rev. Stat. Arizona, 1887, is mandatory and not directory. Cases on appellant’s brief distinguished. A court may adopt rules to govern its procedure with discretionary power to deviate from them where their application would be injurious or impracticable. Grayson v. Virginia, 3 Dall. 321; United States v. Breitling, 20 How. 252; 18 Ency. Pl. & Pr. 1241;. Hudson v. Parker, 156 U. S. 277; Giant Powder Co. v. Cal. V. P., Co., 6 Sawyer, 508.</p> <p>The rule that a motion for a new trial may be continued to succeeding terms like other motions or proceedings, is subject to the proviso unless the statute requires said motion to be heard during the trial term. Vallentine v. Holland, 40 Arkansas, 338; Walker v. Jefferson, 5 Arkansas, 23; Doddridge v. Gaines, 1 MacArthur, D. C., 335; England v. Duckworth, 74 N. Car. 309; Kane v. Burrus,. 2 Smed. & M. 313, which distinguishes cases cited on appellant’s brief. See also Gross v. McClaran, 8 Texas, 341; Bullock v, Ballew, 9 Texas, 498; Land v. State, 15 Texas, 317; Bass v. Hays, 38 Texas, 129; Wilcox v. State, 31 Texas, 587; Carter v. Commissioners, 12 S. W. Rep. 985.</p> <p>The object of construction and interpretation is to ascertain the intent of the legislature, and there can be no doubt that, by- section 837, the Arizona legislature meant what the Thxas courts had held for thirty-five years to be 'the. meaning of the language adopted. In adopting and enacting a foreign statute decisions expounding it are adopted with it. Tucker v. Oxley, 5 Cranch, 42; Pennock v. Dialogue, 2 Pet. 18; Cathcart v. Robinson, 5 Pet. 280; McDonald v. Hovey, 110 U. S. 628; Brown v. Walker, 161 U. S. 600; Henrietta Mining Co. v. Gardner, 173 U. S. 130.</p> <p>Neither paragraph 837 nor 842 as amended is Open to objection that the legislature in enacting them exercised judicial powers. Young v. State Bank, 4 Indiana, 301; 6 Am. & Eng. Ency. (2d ed.) 1032; Barkwell v. Chatterton, 33 Pac. Rep. 940; Railway Co. v. Backus, 154 U. S. 421. If amendment to § 842 is void § 837 stands and justifies dismissal and this court will not determine whether the amendment is void or not. Wayman v. Southard, 10 Wheat. 46.</p> <p>Appellant has misconstrued § 1866, Rev. Stat. See Ferris v. Highly, 20 Wall. 375; Greeley v. Winsor, 48 N. W. Rep. 204; Hornbuckle v. Toombs, 18 Wall. 648. Rehearings or new trials are not essential to due process of law either in judicial or administrative proceedings. Railway Co. v. Backus, 454 U. S. 421; Montana Co. v. St. Louis M. & M. Co., 152 U. S. 160. The law involved in this case has received the sanction of Congress. Clinton v. Englebrecht, 13 Wall. 434; Camon v. United States, 171 U. S. 277.</p>

<p>APPEAL FROM THE CIRCUIT-COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>The facts are stated in the opinion.</p> <p>The certification of his findings by a referee in bankruptcy and the findings themselves are as binding as are the findings of fact of any referee or single judge or the verdict of a jury, .unless manifestly unquestionably erroneous. In re Carver, 113 Fed. Rep. 138; In re Stout, 109 Fed. Rep. 794; In re Covington, 110 Fed. Rep. 143; Railway Co. v. Gordon, 151 U. S. 285.</p> <p>A finding of fact dependent upon conflicting testimony by a judgp, or master or referee, who sees and hears the witnesses testify, -.has every reasonable presumption in its favor, and may not be set aside and' modified unless it clearly appears that there was an error or paistake upon his part. Tilghman v. Proctor, 125 U. S. 149; Callaghan v. Myers, 128 U. S. 666; Chauncey v. Dyke Bros., 9 Am. B. Rep. 470.</p> <p>A set-off necessarily involves a preference. The relation of a depositor in a bank with the bank itself is that of 'debtor and creditor. Bank of Republic v. Millard, 10 Wall. 152; Marine Bank v. Fulton Bank, 2 Wall. 252; Thompson v. Riggs, 5 Wall. 663; Davis v. Elmira Savings Bank, 161 U. S. 288; Scammon v. Kimball, 92 U. S. 362; Hill on Trustees, 4th Am. ed. 173; Scott v. Armstrong, 146 U. S. 499.</p> <p>Transfers made in the usual and ordinary course of a trader’business, or payments made at the time a debt matures and in the usual mode of paying debts, are prima facie valid. Bank v. Campbell, 14 Wall. 97; Driggs v. Moore, 1 Abb. C. C. 440.</p> <p>If a transfer is made in the usual and ordinary course of business of the bankrupt, the burden of proof will rest upon the assignee. Collins v. Bell, 3 B. R. 587; Scammon v. Cole, 3 B. R. 393.</p> <p>The bank was bound to deduct the amount of the bankrupt’s deposit from the face value of the notes and was entitled to prove its claim for the balance of the indebtedness,' and for that only. Sec. 68 of the bankruptcy law.</p> <p>The bankruptcy law itself gives and enforces the right and duty of set-off, and includes the common law right (and makes a duty of it) of banker’s lien. The act condemns, not every transfer, but only such as it expressly prohibits; which are only such as deplete or lessen the bankrupt’s estate.</p> <p>An exchange of values between an insolvent debtor and one of his creditors does not constitute a preference, because in such cases there is no diminution of the debtor’s estate whereby creditors may be injured. Cook v. Tullis, 18 Wall. 332; Clark v. Iselin, 21 Wall. 378; Fox v. Gardner, 21 Wall. 480; Sawyer v. Turpin, 91 U. S. 120, 121; Stevens v. Blanchard, 3 Cush. 169.</p> <p>Paying cash for property purchased; making a loan; depositing in bank; these' are but exchanges of value. Jaquith v. Alden, 189 U. S. 82; Pirie v. Chicago Trust Company, 182 U. S. 438.</p> <p>Recent decisions upon section 68 of the law hold that deposits are a proper set-off and within the contemplation of the act. In re Myers, 99 Fed. Rep. 691; In Matter of Kalber, 2 Nat. Bankruptcy News, 264; Hough v. First, Nat. Bank, 4 Biss: 349; Blair v. Allen, 3 Dillon, 109; Ex parte Howard Nat. Bank, 2 Lowell, 487; In re Petrie, 5 Benedict, 110; Ex parte Whiting, 2 Lowell, 472; Kelly v. Philan, 5 Dillon, 228; In re Farnsworth, 5 Bissell, 223; Robinson v. Wisconsin Bank, 18 Bankruptcy Rep. 243; In re Elsasser, 7 Am. B. Rep. 215.</p> <p>The bank had a banker’s lien upon the balance of the géneral deposit account of all indebtedness then due to it. Smith v. 8th Ward Bank, 31 App. Div. N. Y. 6; In re Emslie, 102 Fed. Rep. 291; National Bank v. Insurance Co., 104 U. S. 71; Bank of Metropolis v. N. E. Bank, 1 How. 289; Straus v. Tradesmen Nat. Bank, 122 N. Y. 379, and cases cited; People v. St. Nicholas Bank, 44 App. Div. N. Y. 313; Meyers v. N. Y. County Nat. Bank, 36 App. Div. N. Y. 482.</p> <p>The rule, is that, in general, the assignee does not stand in a better predicament than the bankrupt himself'and can claim only what the latter might claim. In re Emslie, 102 Fed. Rep. 291; Winsor v. Kendall, 3. Story, 507; Fisher v. Hunt, 2 Story; 582; Foster v. Hackley, 2 B. R. 406; In re Leland, 10 Blatch 503; In re Lyon, 7 B. R. 182.</p> <p>The bankruptcy act entirely recogniz.es liens, whether state Or common law, so long as they were, not liens given in violation of the specific terms of the act. In re Fall City Shirt Co., 3 Am. Bankruptcy Rep. 437; In re Byrne, 3 Am. Bankruptcy Rep. 268; In re Beck, 2 Nat. Bankruptcy News Rep. 533; In re Lowenstein, 2 Nat. Bankruptcy News Rep. 71; In re Brown, 104 Fed. Rep. 762; in re Gillette, 104 Fed. Rep. 769.</p> <p>A recent case, that of In re Kellar, 110 Fed. Rep. 348, distinguished.</p> <p>The appeal is rightly taken. Matthews v. Hardt, 79 App. Div. N. Y. 570; Pirie Scott Case, 182 U. S. 436; Hutchinson v. Olis, 190 U. S. 552; Trust Co. v. Bent, 187 U. S. 237.</p> <p>The making of these deposits by the bankrupts at a time when they were insolvent and their appropriation by the bank ' in part satisfaction of the debt owed it by the bankrupts have given the bank a preference. Ignorance of the insolvency is immaterial. Pirie v. Chicago Title & Trust Co., 180 U. S. 438.</p> <p>The bank having received a preference, the doctrine of set-off cannot be invoked to undo and to make good what the statute has declared is a "preference.” Sawyer v. Hoag, 17 Wall. 610, 622; Traders’ Bank v. Campbell, 14 Wall. 87, 97; Pearsall v. Nassau Nat. Bank, 74 App. Div. N. Y. 89.</p> <p>' Cases on appellant’s brief as to set-off distinguished, and see In re Hays, Foster & Ward Co., 3 N. B. N. & R. 301. See In re Kellar, 110 Fed. Rep. 348; Matter of Tacoma Shoe & Leather Co., 3 N. B. N. & R. 9; Matter of Erik A. Christensen, 3 N. B. N. & R. 231.</p> <p>To say that the bank has a banker’s lien does not save the transaction from being a preference under the Bankruptcy Act.</p> <p>Tlie lien of the bank does not come into existence until the debt to the bank becomes due. The very cases cited by the appellant bring out this point clearly.</p> <p>There is nothing in the record showing any special agreement giving the bank a lien upon the deposits at the time when made, as was the case in Hatch v. Fourth National Bank, 147 N. Y. 184.</p> <p>Even if there was a special agreement made at the time the notes were discounted by the bank.,.it is amply settled by the authorities decided under the present bankruptcy law'that the lien would not attach until actual possession took place. Wilson Brothers v. Nelson, 183 U. S. 191; Matthews v. Hardt, 79 App. Div. N. Y. 570; Matter of Fannie Mandel, N. Y. Law Journal, Nov. 24, 1903</p>

Held: avoided the policy, unless it was kept alive by the mere fact that the assured although taking no active part in the business of the firm was yet a silent partner, and'as such had some interest-in the insured property.

The facts in this case are few and beyond dispute, most of them being shown by the averments in the answer of the defendant Sherman. On August 23, 1889, Ward, the plaintiff . and appellant, sold to the defendants the Sunflower range, together with the cattle thereon and other personal property.

On June 25, 1895, Charles E. Pearce, the testator of the defendants in error, commenced his action in replevin in the Circuit Court of the city of St. Louis, Missouri, to recover from the railroad company four boxes of curios. After answer a trial was had before the court without a jury, resulting in a judgment for the plaintiff, which, on May 7,1901, was affirmed by the St. Louis Court of Appeals. 89 Mo. App. 437.

Held: in accord -with a decision of the Court of Appeals of the State of New York, rendered in a collateral controversy which grew out of the refusal to accept the.coffee, In re Lurman, 149 N. Y. 588 , that if the coffee was adulterated, -within the statute of the State of New York, the buyers'were not bound to accept, despite the finding of the grader that it conformed to the types of the Coffee Exchange, referred to in…

Held: 113 Fed. Rep. 930 , that there was a contract under the act of 1862, as contended for by the complainant; that the act of 1885 could not be so construed as to permit the board of supervisors, in.fixing water rates by its authority, to entirely disregard the capital actually invested in the property of the corporation under- the act of 1862, and that if otherwise construed the act of 1885 would run counter to the…

The appellants were owners of land on the Mississippi River, in the State of Louisiana, amounting to five thousand or six thousand acres, upon which were cabins, - other buildings and fences. They brought suit in tlie Court of Claims for damages to their lands, alleged to have resulted from certain works of the United States. The damages consisted, as found by the court, of the erosion and overflow of about twenty-three hundred acres of the land.

Held: on error, that the reference of the motion to the constitutional require- . ments concerning electors as one of the motives -for the exclusion of the blacks did not warrant' such action as would prevent the court from passing on constitutional rights which it was the object of the motion to assert, and'that the exclusion of blacks from the grand jury as alleged was contrary to the Fourteenth Amendment of the…

This was an action begun in the Supreme Court of the District of Columbia by Mary Shappirio and Jacob Shappirio, her husband, against Minnie D. Goldberg and George Goldberg, her husband, having for its object equitable relief because of alleged fraud of the respondents in the sale of certain property in Washington, District of Columbia, to the complainant, Mary Shappirio. It appears that the sale was made through one Richold, a broker in real estate.

These actions were brought in the Circuit Court of the State of Oregon for Multnomah County upon separaté demands to recover the value of stock severally held by Weinhard and Williams in the Commercial National Bank of Portland, Oregon; Williams owning sixty shares of the par value of $6000, and Weinhard one hundred shares of the par value of $10,000. By stipulation the cases were heard together in the Circuit Court; a jury being waived and a trial had to the court.

Robert A. Chesebrough filed his petition in the District Court of the United States for the Southern District of New York, May 23, 1902, to recover the sum of six hundred dollars, from the United States alleged to have been paid to the collector of internal revenue for the second district of New York for the purchase of certain internal revenue stamps to be affixed to a deed for the conveyance of real estate.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.</p> <p>This controversy relates to an alleged infringement by the petitioner, a New Jersey corporation, of United States letters patent No. 271,426, issued to the respondent on January 30, - 1883, for “ a new and improved sewing machine treadle.” For convenience the petitioner will be hereafter referred to as 'the Singer Company and the respondent as Cramer.</p> <p>The treadle device used by the Singer Company on its sewing machines, which it was charged infringed the Cramer patent, was covered by letters patent No. 306,469, dated October 14, 1884, issued to the Singer Company as the assignee of one Diehl.</p> <p>The file wrapper and contents exhibit the following proceedings in the Patent Office respecting the Cramer patent. The original application was filed on May 25,1882, and was for the grant of letters patent to Cramer “as the inventor, for the invention set forth in the annexed specification.” The specification and oath thereto read as follows:</p> <p>“I, .Herman Cramer, of the city of Sonora, in Tuolumne County, in the State of California, have invented certain improvements in a treadle, to be used in sewing machines, or other machinery where a noiseless treadle may be required, of which the following is a specification:</p> <p>“My invention consists of the usual platform'marked ‘A’ in Fig. 1 of diagram on treadle-bar. The ends of said treadle bar, marked ‘ B,’ are shaped like the letter Y and rest in socket in lower end of a brace ‘G,’ the socket being shaped, the brace ‘ C ’ cast in one piece, and the treadle bar and' platform on the bar is also cast in one piece.</p> <p>“The treadle bar rests in socket in brace ‘C,’ which is immediately above a cross-brace usually in machines to keep them from spreading apart, the nut on end of cross brace is marked H.’ . Letter ‘M’ immediately beneath cross brace and treadle bar is an oil receiver to retain any drippings of oil from the bearings of treadle bar.</p> <p>“My invention consists in having the ends of the treadle bar V-shaped to fit in hole in brace ‘ C,’ also shaped to receive the ends of the treadle bar.</p> <p>“This V-shaped treadle bar in brace ‘C’ entirely prevents noise from the treadle, is self-adjusting, and does away with, the necessity of cones and set screws now in use. This I claim as my invention. Fig. 1 represents platform ‘A’ and treadle bar, the ends of which are V-shaped and marked ‘B/</p> <p>“Fig 2 represents the lower end of brace ‘O’ with hole shaped to receive the ends'of treadle bar ‘B.’ '£>' represents nut on end of cross brace immediately below treadle bar.</p> <p>“ State of California, )</p> <p>“County of Tuolumne, j</p> <p>“Herman Cramer, the above-named petitioner, being duly sworn, deposes and says that he verily believes, himself to be the original and first inventor of the improvement in a noiseless self-adjusting treadle described in the foregoing specification, that he does not know and does not believe that the same was ever before known or used, and that he is a citizen of the United States.”</p> <p>The application was referred to the ’ examiner, who, on May 29,-1882, wrote to Cramer, in care of his attorneys, as follows:</p> <p>“The application is not prepared in conformity with the rules of the office. The specification is written on both sides of the pages, while the rules direct that it should be written on one side of each page only.</p> <p>“No claim is appended to the specification. The oath is incomplete, as section 39 of the rules requires applicants to state under the oath if the. invention has been patented to them, or with their knowledge and consent to others in any foreign country, and if so, the number, date and place of such patent or patents. Reference is made to the patent to G. W. Gregory, No. 256,563, April 18,1882, which exhibits the alleged invention.”</p> <p>On August 3, 1882, the following substitute specification, concluding with an oath similar to that appended to the prior specification, was sent to the Patent Office:</p> <p>“I, Herman Cramer, of the city of Sonora, in Tuolumne County, in the State of California, have invented certain improvements in a treadle and brace, to be used in sewing machines or other machinery where a noiseless treadle may be required, of which the following is a specification:</p> <p>“My,invention consists in a combination of the usual platform marked ‘A,’ in Fig. 1 of diagram on treadle bar. The ends of said treadle bar marked ‘ B ’ are to bear against mufflers.</p> <p>“The treadle bar bearings are in and on brace/C.’ The treadle bar rests in socket in brace ‘ C,’ which is immediately above a cross bar usually in machines to keep them from spreading apart.</p> <p>“The nut on end of cross bar, is marked ‘D.’ Letter ‘M,’ immediately beneath cross bar, and treadle bar, is an oil receiver to retain any drippings of oil from the bearings of treadle bar..</p> <p>“The treadle bar, mufflers and brace ‘C’ are held between the right and left legs of the machine by means of a brace bar underneath the treadle bar.</p> <p>‘ ‘ This brace and socket or bearing in or on brace is in one piece.</p> <p>“The treadle bar with mufflers on the ends, working or bearing in or on brace, entirely prevents noise from the treadle, is self-adjusting, and does away with the necessity for-cones and set screws now in use.</p> <p>“Fig. 1 represents platform ‘A’ and treadle bar, the ends of which may be Y-shaped, or any shape to suit, marked ‘B.’</p> <p>“Fig. 2 represents the lower end <pf brace ‘C.’</p> <p>"‘D’ represents nut on end of cross bar immediately below the treadle bar.</p> <p>“What I claim is a combination of brace ‘O’ with socket or bearing in it or on it, to receive the treadle bar with- the mufflers at the ends of treadle bar or in or on brace ‘ C ’ in connection with said brace ‘C/’and the treadle bar in connection with brace ‘C’ and mufflers to work in or on brace ‘0/ substantially as set forth.”</p> <p>On August 14, 1882, the examiner wrote Cramer, in' care of his attorneys, as follows:</p> <p>“Applicant’s amended claims-are met by the patent to J. E. Donovan, June 28, 1881, No. 243,529, in view of which a patent is again refused.”</p> <p>Following this rejection there was filed a- revocation of the power of attorney which had been executed by Cramer in favor of the attorneys who had theretofore conducted the proceedings, and an appointment of other attorneys for the further prosecution of the application. On October 17, 1882, the substituted attorney sent to the Patent Office a new drawing and an amendment of the specification on file, which amendment consisted in cancelling all the specification except the signature and substituting for the matter so stricken out the following:</p> <p>“Be it known that I, Herman Cramer, of Sonora, in the county of Tuolumne and State of California, have invented a new and improved sewing machine treadle; and I do hereby declare that the following is a full, clear, and exact description' of the same, reference being had to the accompanying drawing, forming part of this specification.</p> <p>“My invention relates to improvements in the bearings of •sewing machine' treadles, and it has for its object to provide means, first, to keep the treadle bearings rigidly in line and at a fixed distance apart to avoid friction, and second, to make its movement in use, noiseless. To this end my invention consists in the construction and combination of parts hereinafter fully described and claimed, reference being had to the-accompanying drawings in which—</p> <p>• “ Fig. 1 is a perspective view of a portion of a sewing machine showing my invention.</p> <p>“Fig. 2 is a transverse vertical section-through one bearing' of- the treadle.</p> <p>“A represents the treadle provided with the usual pitman connection by which to run the sewing machine wheel. B represents the two trunnions cast as a portion of the treadle and extending from its side into loopholes in the common cast iron cross brace C. These trunnions aré sharpened to an edge or corner along their lower sides, and-the lower end of the lo.op-hole is hollowed to an angle more obtuse than the- edge of the trunnion, to serve as a bearing for the same and permit the rocking motion common to treadles.</p> <p>“C represents the usual cast iron double brace, .connecting the two end legs diagonally in a plane generally vertical. The lower ends of this brace are secured directly to the web of the legs by bolts d, and for convenience and strength I make the two ends of the common cross bar D serve as these bolts. The upper ends of the brace are secured as usual, either to the wed of the legs-or to the table of the machine near the legs.</p> <p>“The treadle and its trunnion bearings are wholly independent of the-cross bar D, except its -service as stated, to hold the .brace to the legs. The bearing holes in the brace are formed into long vertical loops to permit the entrance of the treadle.</p> <p>“Pieces of leather F, or'other soft material, cover the top ' and end of each trunnion, to serve as cushions to keep the same close in its bearing, to prevent the noise which would result were the trunnions .permitted to bounce and thump endways, when the treadle is, in motion. The leather F is fitted to the curve of the upper side of the trunnion, which is an arc of a cylinder, whose center of oscillation is the lower edge of the trunnion; the same leather also interposes between the end of the trunnion and the adjacent iron. / is ‘a block serving as a mere backer to which the cushion F' is attached. This block conforms to the back and top side of the cushion and fills the loophole in the brace above the trunnion. It also has tangs or projections e; resting in suitable recesses in the brace C, which are held between the' brace and the web of the leg E, by which • means the block and cushion are held in place: Below the bearings of the trunnions B I provide cups, M, attached to the ends of brace C, to catch the oil that usually drips from such bearings.</p> <p>“By this construction my treadle bearings are rigidly fixed arid in no way liable to get out of line or to require adjustment; the usual noise is prevented, and overflowing of oil is caught before it can do damage.</p> <p>“I am aware that sewing máchine treadles have before been provided with Y-sháped bearings and I do not claim trie same' as my invention but—</p> <p>“What..I claim and wish .to secure by letters patent is—</p> <p>“1. The vertical double brace joining-the legs of the two ends of a sewing machine, provided with holes through its lower1 extremities-to serve as bearings, in combination with a treadle provided with trunnions fitted to oscillate in said bearings, substantially as specified.</p> <p>“2: The sewing machine legs E, the vertical double brace C secured thereto and provided with holes to serve as bearings for the treadle A, and the treadle provided with trunnions B to oscillate in said bearings, in combination with the cushion F ‘and the block /, as and for the purpose specified.”</p> <p>Accompanying the new specification was the following communication, signed by the attorney:</p> <p>“A new oath is herewith filed. Gregory, referred to, pivots the grooved trunnions of his treadle upon knife edges secured within the upper loops of two collars, which are secured to the cross bar by means of set screws to keep them from turning. Donovan pivots his treadle upon its trunnions having sharpened edges, in grooves in the cross bar, where it is held by collars provided with flanges projecting over the trunnions. Applicant pivots his treadle upon the sharpened edges of its trunnions in loop holes in the two ends of the brace which is bolted to the legs of the machine by the two ends of the cross bar. This service of the cross bar might be as well performed by two short bolts; but the bar being a usual cross tie to stiffen the legs, applicant uses its ends as bolts to hold his brace ends to the legs. We have rewritten the specification to elucidate the inventor’s claim. Should the case meet with favorable consideration a new drawing will be furnished. For the purpose of examination see pencil sketch on sheet of drawing filed.”</p> <p>On October 19, 1882, the examiner wrote Cramer, in care of his attorneys, as follows:</p> <p>“The case has been reconsidered in connection with the substituted specification filed the 17th inst., and the examiner, holds that the references previously cited — that of Gregory in particular — meets tbe alleged invention. The case is accordingly rejected.”</p> <p>To this letter the following reply was made by the attorneys for Cramer:</p> <p>“The examiner will please notice that applicant’s invention places both bearings of the treadle in the cross brace.</p> <p>“By this means they may be made perfectly true in line either by casting or drilling arid they cannot be thrown out of line either by use or by the most awkward setting up.</p> <p>“Therefore one source of friction is avoided. All the references have shown bearings made of two separate pieces which could readily be set up out of line or even be worked loose. The advantage is obvious.</p> <p>“A reconsideration is respectfully asked.”</p> <p>This closed the correspondence. Soon afterwards notification was given that the patent had been allowed, and letters patent embodying the specification last above set forth, headed “Treadle for sewing machines,” etc., were issued, bearing date January’30,1883. The following is a fac simile of the drawing referred to in the specification:</p> <p> </p> <p>The alleged infringing device is delineated on the following fac simile of the first sheet of the drawing attached to the Diehl patent:</p> <p> </p> <p>In this specification Diehl declared his invention to consist in “certain new and useful improvements in sewing machine stands and treadles;” and the object-to be “to secure a permanent and reliable support and adjustment for both the band wheel and treadle and to preserve their respective relative positions, so that they will always cooperate to produce the best results with the least danger of friction or binding.” The claims were five in number, as follows:</p> <p>“1. In a sewing machine stand, a cross brace having supports for both the. band wheel and the treadle integral with said brace.</p> <p>“2. In a sewing machine stand, a cross brace having supports for both the band wheel and the treadle integral with said brace, and provided also with means for adjusting and taking up the wear of such band wheel and treadle.</p> <p>“‘3. In a sewing machine stand, a cross brace adapted to connect the legs or side pieces thereof, provided at one side with bearings for the fly wheel crank shaft, and having a support' at its base for the treadle, substantially as set forth.</p> <p>“4. The combination, with the cross brace of a sewing machine' stand, of a crank shaft and a treadle, both mounted in the said brace, substantially as set forth.</p> <p>“5. A cross.brace for sewing machine stands, having at its base 'a cross bar, combined with a treadle mounted in said cross bar, substantially as set forth.”</p> <p>To recover damages for alleged, infringement of the first claim of the Cramer patent, in the use by the Singer Company of the Diehl device just referred to, Cramer brought this action at law against the Singer Company on October 8, 1896, in the Circuit Court of the United States for the Northern District of California. By amendment of the declaration the recovery was limited to damages sustained by infringements committed within the Northern District of California. In the answer filed on behalf of the Singer Company — in addition to excepting to the' jurisdiction of the court and pleading as res judicata a former judgment rendered in favor of the defendant in an action brought by Cramer against one Fry, an employé of the Singer Company, 68 Fed. Rep. 201 — defences were interposed of want of novelty and utility and lack of invention, and infringement -was denied.</p> <p>A trial was had which resulted (by direction of the court, sustaining the plea of res judicata) in a verdict and judgment for the defendant. This judgment was reversed by the Circuit Court of Appeals for the,Ninth Circuit. 93 Fed. Rep. 636. On a second trial a verdict was rendered for Cramer and judgment was entered thereon for the sum of $12,456. On appeal this judgment was affirmed by the Circuit Court of Appeals for the Ninth Circuit. 109 Fed. Rep. 652. A writ of certiorari was thereafter allowed by this court.</p>

Held: this court has’jurisdiction of an action by one State against another to recover a tract of land, there would seem to be no doubt of the jurisdiction of one to enforce the delivery of personal property.

<p>A decree rendered upon a bill in equity brought under the Act of March 2, 1889, 25 Stat. 850, to have patents for land declared void as forfeited and to establish the title of the United States to the land, is a bar to a subsequent bill brought against the same defendants to recover the same land on the ground that it was excepted from the original grant as an Indian reservation.</p> <p>As a general .rule, a party asserting a right by suit i§ barred by a judgment or decree upon the merits as to all media concludendi or grounds for asserting the right, known when the suit was brought.</p> <p>The. general rule is, where a bill is dismissed, to dismiss the cross bill also.</p>

circuit court of the united states for the SOUTHERN DISTRICT OF NEW YORK. George O. Thomas wás indicted for violation of the internal revenue laws of the United States in that, being a broker in the city of New York, he sold certain shares of Atchison preferred stock and. omitted the required revenue stamps from the memorandum of sale.

Held: in effect, that” it was too obvious for controversy that the acts of Congress referred to did not give the mail clerk any particular right as against the railroad company in respect of negligence and therefore this court declined "to. entertain the writ.

<p>The additional liability of the shareholders of corporations depends oh the terms of the statute creating it, and as such a statute is in derogation of the common law it cannot be extended beyond the words used.</p> <p>Where the charter of a state bank provides for additional liability of the shareholders as sureties to the creditors of the bank for all contracts and debts to the extent of their stock therein, at the par value thereof, at the time the debt was created, a shareholder is not liable for a debt created . after he has actually parted with his stock and the transfer has been regularly entered on the books of the bank.</p> <p>Where the decisions of the highest court of a State show that it regarded the construction and application of a statute as open for review if another case arose, its prior determinations of the questions do not necessarily.have to be adopted and applied by the Federal courts in cases where the cause of action arose prior to any oí the adjudications by the state court.</p> <p>Section 1496 of the Georgia Code of. 1882, requiring shareholders of banks to publish notice of transfer in.order to exempt themselves from liability, does not apply to shareholders who have transferred their stock prior to the inception of the debts at the time of the failure of the institution. '</p>

Held: were all embarked in the sugar’ refining business, and to. it, therefore, all receipts which those .funds produced necessarily belonged. Any diminution of them would certainly have been its loss, and it seems to be equally clear that their augmentation, however occasioned, must have been its gain.

On June 6, 1896, Congress passed an act, 29 Stat. 253, entitled “An act defining cheese, and also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of ‘filled cheese.’ ” Section 2 defines “filled cheese.”Section 3 directs that “manufacturers of filled cheese shall pay four hundred dollars for each and every factory per annum.” Section 6 provides for the stamping and branding.óf the wooden packages in which manufacturers are required to;…

A statute of Idaho reads as follows :• “When the death of a person, not being a minor, is caused. by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such'person be employed by another person who is responsible for his conduct, then also against such other person.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.</p> <p>The facts in this'case, which involved the right of the county to recover statutory penalties for carrying on, without a ferry license, the transportation of cars across the Mississippi River between points in Illinois and Missouri, are stated in the opinion.</p> <p>The authority to establish and regulate ferries between States is not included in the power of the Federal government to “regulate commerce with foreign nations and among the several States and with Indian tribes.” That authority was reserved to the States respectively and never delegated to the United States. Conway et al. v. Taylor’s Exrs., 1 Black, 603; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Tugwell v. Eagle Pass Ferry Co., 74 Texas, 480; Carroll v. Campbell, 108 Missouri, 550; S. C., 110 Missouri, 557; Marshall v. Grimes, 41 Mississippi, 27; People v. Babcock, 11 Wend. 586; Fanning v. Gregoire, 16 How. 524. See also Mills v. St. Clair County, 3 Gil. (Ill.) 197; aff’d' How. 569; Columbia & Bridge Co. v. Geisee, 38 N. J. Law, 39; Memphis v. Overton, 3 Yerger, 390; Chilvers v. People, 11 Michigan, 43; Bowman v. Walthen, 2 McLean, 377. A ferry is in respect of the landing place and not of the water. The water may be to one and the ferry to another. 13 Viner’s Ab. 208 A, cited in Conway v. Taylor’s Ex., 1 Black, 629.</p> <p>The ferry business carried on by defendant is interstate commerce conducted on the Mississippi River, a navigable water of the United States; and the State of Illinois cannot require defendant to obtain a license from the Board of Commissioners of St. Clair County to conduct such commerce. Gibbons v. Ogden, 9 Wheat. 1; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Covington Bridge Co. v. Kentucky, 154 U. S. 204, 217; Harman v. Chicago, 147 U. S. 396; Brown v. Houston, 114 U. S. 622; Moran v. New Orleans, 112 U. S. 69; Mobile v. Kimball, 102 U. S. 691; Hall v. DeCuir, 95 U. S. 485; Rhodes v. Iowa, 170 U. S. 412; Wabash Railway Co. v. Illinois, 118 U. S. 557, 564; Pickard v. Pullman Co., 117 U. S. 34; Hays v. Pacific Mail S. S. Co., 17 How. 596; Welton v. Missouri, 91 U. S. 282; In re Debs, 158 U. S. 564; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Adams Express Cor v. Ohio, 166 U. S. 185; Philadelphia, etc., v. Pennsylvania, 122 U. S. 326; Bowman v. C. & N. W. Ry. Co., 125 U. S. 465, 508; Leloup v. Mobile, 127 U. S. 640; St. Louis v. W. U. Tel. Co., 148 U. S. 92; California v. Pacific R. R. Co., 127 U. S. 1; Crutcher v. Kentucky, 141 U. S. 47; Brennan v. Titusville, 153 U. S. 289, 302; Fargo v. Michigan, 121 U. S. 230, 245; Hooper' v. California, 155 U. S. 648, 653; Pickard v. Pullman Co., 117 U. S. 34; Norfolk Ry. Co. v. Pennsylvania, 136 U. S. 114; Illinois Central R. R. Co. v. Illinois, 163 U. S. 142; Robbins v. Shelby Co., 120 U. S. 489; St. Louis v. Consolidated Coal Co., 158 Missouri, 342.</p> <p>Even if the State of Illinois had power to exact a license fee from all persons engaged in carrying on interstate commerce by means of ferries, the discriminations of the act in question in favor of existing ferries and landowners, and the authority given the Boards of County Commissioners to discriminate between applicants for a license, makes the act void so far as it relates to interstate commerce. Guy v. Baltimore, 100 U. S. 434.</p>

Buttfield v. Stranahan, 192 U.S. 470 (1904), was a United States Supreme Court case in which the court held that the Tea Inspection Act was constitutional. Congress's power to regulate foreign trade is virtually unlimited under the Commerce Clause, it was not an impermissible delegation to the executive branch, and the enforcement of a standard is not a taking without due process of law.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT.OF NEW YORK-.</p> <p>Decided on authority of Buttfield v. Stranahan, ante, p. 470.</p>

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.</p> <p>Decided on authority of Buttfield y. Stranahan, ante, p. 470.</p>

Held: should be construed together,’ so. that the one would not limit the other. We have been .referred to no case decided by the Supreme Court of Tennessee modifying this interpretation of the state constitution, and its correctness is in effect directly affirmed by the ruling made by the court in this case.

Held: in the Circuit Court, District’ of Oregon, that land was *535 adjacent to the line of road within the purpose and intent of the act when, by reason .of its proximity thereto, it is directly and materially benefited by the construction of such road. The court said in that case: ‘‘ What is 'adjacent’ land, within the meaning of the statute, must depend on the circumstances of each particular case.

<p>PETITION FOR WRIT OF MANDAMUS TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.</p> <p>The facts are stated in the opinion.</p>

. This is a writ of error to the Supreme Court of the State of New York. The plaintiff in error at the April term, 1903, of the Supreme Court of the State of New York was tried before one of the justices of that court and a jury and convicted of the. crime of having in his possession, knowingly, certain gambling paraphernalia used in the game commonly known as policy, in violation of section 344a of the Penal Code of the State of New York.

<p>In error to the Supreme Judicial Court of the State of Massachusetts.</p>

<p>Appeal from the Court of Claims.</p>

<p>In error to the Supreme Court of the State of Illinois.</p>