Volume 204 — United States Reports

Held: that the transfer of shares after the reduction of June 9; 1900, did not carry any right to' an interest in.the special trust fund, the proportionate interests therein having vested in the then shareholders- as individuals. The result is unaffected by the fact that distribution in cash may have been contemplated as the assets set aside were realized upon.

The facts are stated in the opinion. The Pennsylvania judgment is invalid, outsicle of that State at least, because it does not appear that when process was served on the insurance commissioner the plaintiff in error was doing business in Pennsylvania. Barrow Steamship Co. v. Kane, 170 U. S. Ill; St. Clair v. Cox, 106 U. S. 350; Fitzgerald, Co. v. Fitzgerald, 137 U. S. 98, 106; Mutual Life Ins. Co. v. Spratley, 172 U. S. 602; Goldey v. Morning News, 156 U. S. 519.

In a general way it may be said that this is a suit brought in the Supreme Court of the District of Columbia by the appellant, alleging himself to be a citizen of Illinois and the owner of property subject to taxation by the United States, to restrain the Secretary of the Treasury from paying out money in the purchase of property for the construction of a canal at Panama, from borrowing money on the credit of the United States, from issuing bonds or making any payments under…

The sole question in this case, as stated by counsel for plaintiff in error, is whether the following section of the statutes of Ohio contravenes section 1 of the Fourteenth Amendment of the Constitution of the United States: “Every president, director, cashier, teller, clerk or agent of any banking company who shall embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such company, or shall, without authority from the directors, issue or put forth…

APPEALS FROM THE COURT OF APPEALS FOR THE DISTRICT OF' Columbia. The facts are stated in the opinion.' This court should not undertake to determine the question of the validity of the tax title. If the adjudication of its invalidity is essential to complainant’s right to relief, that inquiry should never have been entered upon, but the bill should, for that reason alone, have been dismissed.

<p>Royal Insurance Co. v. Martin, 192 U. S. 194, followed as to the jurisdiction of this court over appeals from the District Court of the United States for the District of Porto Rico.</p> <p>The party causing the removal from the local court of Porto Rico to the United States courts of a case, over which the latter would have had original jurisdiction as to all parties impleaded had it been brought there originally, cannot, after judgment against him, assert lack of jurisdiction of the United States court solely on the ground that the removal was erroneous.</p> <p>Under the law of community property in Porto Rico, the wife does not, as a consequence of a judgment of divorce against her, forfeit her interest in the community.</p> <p>In liquidating the community the husband is' not chargeable with an obligation to return to the community sums spent by him on the ground that the expenditures were unreasonable or extravagant.</p> <p>If there is any amount due a wife, against whom a judgment of divorce has been rendered, on account of her interest in the community, she is entitled to provoke a liquidation, and to a decree against the husband for the amount so due and for alimony and expenses actually awarded to her in the divorce suit, but not for additional sums for services of counsel in the suit for liquidation.</p>

. Jacob Newman, George Northrop, Jr., and S. 0. Levinson commenced this action in the Superior Court of Marion County, Indiana, against the defendant in error, Harry B. Gates. Recovery of the sum of $1,400 was sought upon a judgment obtained by Newman and his co-plaintiffs against Gates in the Circuit Court of Cook County, Illinois. The defendant filed an answer in two paragraphs, but as the defenses therein asserted were ultimately abandoned they need not be detailed.

<p>CERTIORARI TO THE CIRCUIT COURT OP APPEALS FOR THE SECOND CIRCUIT.</p> <p>This case comes here upon return to a writ of. certiorari, issued by this court to the Circuit Court of Appeals of the Second Circuit. It is a proceeding in bankruptcy, and the question involved is one in regard to the sufficiency of the filing of certain proofs of claims against the bankrupts’ estate.</p> <p>The. facts are these: Messrs. Ingalls Brothers were adjudicated bankrupts' in proceedings in the District Court of the United States for the Northern District of New York on the third day of December, 1902. Soon thereafter one Charles Duncan was appointed trustee, and on the ninteenth day of December, 1902, he duly verified a proof of claim in his own behalf for $4,171, admitting, an offset of $327. On the first of April, 1903, the J. B. Orcutt Company duly verified a proof of claim against the bankrupts’ estate for $893.68, and in a short time delivered it to the trustee. At the first meeting of creditors Charles H. Dauchy Company presented to the referee a defective proof , of .claim against said bankrupts for $3,335.67, which was returned by the referee to said company for correction. Prior to January 23, 1903, the Dauchy Company duly verified another proof of claim in the same amount, prepared by Henry W. Smith, the attorney for the trustee, who had volunteered to prepare the same so as to comply with the rules, and on or about March 15, 1903, the Dauchy Company delivered this proof of claim to the trustee. Prior to June 1, 1903, the trustee delivered all three claims to said Henry W. Smith, with directions to file the same with' the referee, which the attorney promised to do. In this he failed. When the'attorney Smith received these claims from the trustee he handed them to a clerk in his office, directing him to put them with the papers in this proceeding, and shortly after told the clerk to file the proofs of the claim with the referee. The clerk neglected to do so, and some time afterwards, upon being asked in regard to it, said that he would do so immediately. This was before the expiration of the year after the adjudication. But he again failed to make the. filing. The Dauchy proof, which had been left with the attorney, is lost and cannot be found, after diligent search made by the attorney for it in his office. The other two claims, the Orcutt Company’s and Duncan’s own claim were found in a package of papers relating to another bankruptcy proceeding. ' Another proof of claim, for the same amount, was made by the Dauchy Company April 2, 1904, and, with the Duncan and Orcutt proofs, was presented to the referee for filing, each proof being accompanied by a petition, dated April 2, 1904, for leave to file each of said claims nunc pro tunc as of a date prior to December 3, 1903, or for such other or further relief as might be just and proper. Smith was not the attorney for any of the claimants, and his failure to file with the referee was not by virtue of any instructions to withhold such claims from filing, nor was it known on the part of any of the claimants that he had failed to file them until more than a year after the adjudication.</p> <p>Upon the presentation of these claims with the petition, other creditors of the bankrupts objected to the granting of the relief asked in the petition, upon the ground that the claims had not been seasonably presented to the court, and were barred under the provisions of section 57n of the Bankruptcy Act.</p> <p>Upon the hearing of the petition for leave to file these proofs of claim, the referee, to whom the case had been referred, denied the petition, under the objection of other creditors, on the ground that one year having expired subsequent to the adjudication of bankruptcy and prior to the filing of the several petitions and the presentation thereof to the referee, the referee had no power to permit the filing of said proofs of claims, and that neither the referee nor the court had any discretionary power to permit either of said proofs of claims to be filed, either nunc pro tunc or otherwise. An order denying the relief asked was duly entered.</p> <p>The referee then certified for review by the District Court the question, whether his decision was correct in refusing the relief stated by the claimants.</p> <p>The District Court directed that the claims of the petitioning creditors should be filed as of the date when delivered to the trustee;</p> <p>Charles H. Green, one of the creditors of the bankrupts, thereupon appealed from the order of the District Court reversing the determination made by the referee, to the .United States Circuit Court of Appeals for the Second Circuit, and in his appeal, in view of the position of the trustee and his refusal himself to act in the matter, Green asked that he might be permitted to prosecute the appeal for himself and the other creditors. The District Court thereupon állowed the appeal and cited the respondents to appear in the Circuit Court of Appeals. That court, having heard the case argued, reversed the decision of the District Court, and affirmed that of the referee. A brief memorandum was filed by the court, in which it was> stated that the referee had given a very full examination of the question of law involved,, and that the court concurred in his interpretation of the statute, and that his opinion might be printed as a supplement to the memorandum of the court.</p> <p>There is no provision in the Bankruptcy Act which fixes the time within which proofs of claim must be filed. In re Hernstein, 10 Ám. B. R. 308-320; Hutchinson v. Otis, 190 U. S. 552. The language- of the Bankruptcy Act should not be altered by construction so as to work a forfeiture of the rights of these creditors. Forfeitures are not favored in law. Marshall v. Vicksburg, 15 Wall. 146; Vattel, 29th Rule of Construction; Farmers' & Mechanics’ Bank v. Dearing, 91 U. S. 29.</p> <p>The purpose of the Bankruptcy Act is to provide for equality in distribution among creditors and not to enforce forfeitures as against particular creditors. By placing the narrow construction upon § 57n contended for by the respondents, a forfeiture .of the rights of certain creditors will be enforced. 26 Am. & Eng. Ency. of Law, 661.</p> <p>Granted 'that the act limits the time within which proofs must be presented to one year after adjudication, it is sufficient if they be presented within that time to the trustee.</p> <p>The trustee, being an officer of the court, his acts may well be said to be the acts of the court itself, and by filing a claim with him, it can very properly be said that the claim is filed in tíie court where the proceedings are pending as required by § 57c of the act.</p> <p>Even assuming that the Supreme Court has mistaken the limitation of its power, and that the last sentence of General Order XXI (1) is invalid, upon general principles of equity the order of the District Judge should be sustained.</p> <p>The word “proved,” as used in 57n, contemplates and includes fifing. General Order XXI (1) speaks of a deposition to prove claims, etc. This deposition is used as synonymous with proof of debt. That deposition becomes proof when it comes regularly before the proper tribunal. Before a claim is proved, it must have come before the referee.</p> <p>The trustee has no duty to perform in respect to the filing of claims. There is no provision anywhere in the act for filing claim with anyone save the referee, in referred cases. In so far as General Order XXI (1) seems to contemplate a “filing” with the trustee, it is confessedly at variance with the act. The act must prevail and where, at variance therewith the General Orders are not to be considered. Collier, 4th ed. 286; West v. Lea, 2 Am. B. R. 463.</p>

This bill was filed in the United States Circuit Court for the Northern District of Ohio on the twenty-first of March, 1905, against the City of Cleveland and The Forest City Railway Company, for the purpose of obtaining an injunction to restrain the city from carrying out a certain ordinance relating to the Garden street branch of complainant’s railroad, passed by the city council January 11, 1904, on the ground that it was null and void, because it impaired the obligations…

The facts are stated in the opinion. The history of legislation on the subject shows the purpose of Congress to impose duties on imports according to their weight when entered for warehousing. Tariff Act of 1854; Act of 1866, Rev. Stat. §2970; Merritt v. Cameron, 137 U. S. 542. The Customs Administrative Act of June 10, 1890, contained nothing inconsistent with the long established practice.

The facts, which involve the constitutionality of the stock transfer law of the State of New York, are stated in the opinion. To tax sales of shares of corporate stock exclusively is an arbitrary discrimination in violation of the provision of the Fourteenth Amendment securing the equal protection of the laws.

This case was begun in the United States Circuit Court by John Hulitt as receiver of the First National Bank of Hills-boro, Ohio, against the Ohio Valley National Bank, to recover the amount of an assessment upon certain shares of the stock of the Hillsboro Bank, which had become insolvent, which assessment was directed by the Comptroller of the Currency in accordance with the provisions of the National Bank Act.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.</p> <p>The facts are stated in the opinion.</p> <p>If the girl was not an alien within the intent and meaning of the act of March 3, 1903, the commissioner had no authority to detain or deport her, and the final order of the Circuit Court must be reversed. Gonzales v. Williams, 192 U. S. 1.</p> <p>The question raised above as to citizenship or status is purely one of law. As there is no dispute as to the facts, United States v. Ju Toy, 198 U. S. 253, does not govern. The question passed on in that case by the Secretary of Commerce and Labor was in reality as to the place of birth of the petitioner, a question of fact, and the court, by a majority opinion, held that the decision of such an executive officer on a question of fact was final.</p> <p>The said Mariam, or her mother in her behalf, had done everything possible to abandon her foreign allegiance in order to assume the rights incident to her father’s status as an American citizen, and was within the intent and meaning of § 2174, Rev. Stat. See, also, Boyd v. Nebraska, 143 U. S. 178.</p> <p>Having submitted to the allegiance of. the United States at the implied invitation of that government, she cannot be regarded' as an alien. Gonzales v. Williams, supra.</p> <p>Under Rev. Stats. § 2172, if the child Mariam had landed and resided in the country a few weeks, or perhaps days, it would appear that she could maintain a claim to be regarded as a citizen by virtue of her father’s naturalization. See Ruling of Dep. of State, For. Rel. 1881, p. 53; also 1885, pp. 395, 396.</p>

The facts are stated in the opinion. In order to justify removal on the ground of improper join-der of the resident defendant, it was necessary for the removal petitioner to both allege and prove that the allegation of joint liability made in the complaint was fraudulently made. There was no evidence even tending to show such fraud. Alabama Gt. Southern v. Thompson, 200 U. S. 206; Louisville Ry. Co. v. Wangelin, 132 U. S. 599, 601; Plymouth cfee.

The facts are stated in the opinion. As the withdrawal upon general route for the Lake Superior and Mississippi Company was set aside in 1866, the lands were free public lands when the Northern Pacific line was definitely located in 1882; and they therefore fall literally within the Northern Pacific grant, unless their withdrawal was such as to forbid their inclusion on July 2, 1864, the date of the granting act, within the term “public lands” as used in that act.

The litigation between these parties has been protracted through a series of years. ’ A brief history will help to an understanding of the present questions. Prior to 1884 Charles Mayger had located the St. Louis lode claim in Lewis and Clarke County, Montana Territory, and William Robinson and others had located, adjoining thereto, the Nine Hour lode claim. These claims conflicted. Mayger made application for a patent.

<p>CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.</p> <p>The facts are stated in the opinion.</p> <p>The effect of the decision of the Circuit Court of Appeals is to deprive the owner of the New York of a clear right to compel the Conemawjh to share with it the cargo loss arising out of a collision, which this court found and held to have been due to the joint fault of both vessels.</p> <p>That each of two vessels held jointly at fault should equally bear the damage resulting from such negligence has been frequently decided and is a rule of damages in admiralty settled beyond all question. Schooner Catherine v. Dickinson, 17 How. 170; North Star, 106 U. S. 17; Manitoba, 122 U. S. 97; The Albert Dumois, 177 U. S. 240.</p> <p>Nothing pleaded in this case in the way of limitation of liability .under the statutes takes away or limits this rule.</p> <p>Prior to the decision of the District Court, when it entered a decree on the first mandate in the original case, there was no decided case, and no established practice, that required the filing of a cross libel or petition praying for recoupment, set-off or contribution.</p> <p>On the contrary in all of the following cases recoupment was allowed without such pleadings. The Eleonora, 17 Blatchf. 88; Leonard v.~Whitwell, 10 Ben. 638; The C. H. Foster, 1 Fed. Rep. 733; Atlantic M. Ins. Co. v. Alexander, 10 Fed. Rep. 279; The Canima, 17 .Fed. Rep. 271; The Hercules, 20 Fed. Rep. 305; The Job T. Wilson, 84 Fed. Rep. 149; The Livingstone, 104 Fed. Rep. 918; Albert Dumois, 177 U. S. 240; The Manitoba, 122 U. S. 97.</p> <p>Recoupment is the right whereby mutual demands which arise out of the sa:pe transaction may be adjusted in one action. 25 Am. & Eng. Ency of Law, 547. It is of common-law origin and independent of the statutes of set-off.. 4 Minor’s Inst., 2d ed., 706; 1 Chitty, PI. (16 Am. ed.), 595; 31 Am. Rep.,775; 8 yiner’s Abr., Title Discount, 556. But it may be equity early transposed. Grand L. v. Knox, 20 Missouri, 433; 1 Chitty, PI. (14 Am. ed.), 568. It applies to common law and equity; also admiralty. Snow v. Caruth, 1 Sprague, 324; Nichols v. Tremlell, 1 Sprague, 361.</p> <p>Upon what is res adjudícala as applied to this action, see Van Fleet on Former Adjudications, §256; Bulkley v. House, 21 L. R. A. 247; Stale Bank v. Bartlett, 114 Missouri, 276; Kaish v. Mixer, 53 Ohio St. 207; Cottingham v. Earl of Shrews-bury,_3 Hare, 27.</p> <p>This is a maritime cause of action and therefore within the jurisdiction of the admiralty court. The Mariska, 107 Fed. He]). 989; The Hudson, 15 Fed. Rep. 162; Dupont v. Vance, 19 IIow. 162; Wellman v. Morse, 76 Fed. Rep. 573; Ralli v. Troup, 157 U. S. 400; The Irrawaddy, 171 U.’S. 187.</p> <p>The libel fails to disclose any ground for the action, other, than that the District Court, the Circuit Court of Appeals and this court refused in the collision case to divide the cargo damage equally between the parties at fault, although plaintiff prayed such action at different times in that cause. If it be the law that they should have done this, the error is not open to correction by independent action in the admiralty.</p> <p>If petitioner had a definite fixed right under the established law of the admiralty to claim from this defendant an equal division of the damage, or to recoup up to the amount due this defendant, an error was committed in the other case which cannot now be corrected,, at least in the admiralty.</p> <p>The right of contribution proper exists only where two or more persons are jointly, or jointly and severally, liable to a third for the same amount, and one or more are compelled to pay more than a rightful share. It arises in the equity of equality, dictating that a'common obligation should be borne equally by all obligated for its payment;- that one should not, as to others equally obligated, be obligated to sustain more than his own share. The doctrine had its origin in equity. Derig v. Winchelsea, 1 Cox, 318; 3 Pomeroy’s Eq., § 1418; Sheldon on Subrogation, § 169; B. & O. R. R. v. Walker, 45 Ohio St. 577, 589. There is some doubt, under the decisions, whether contribution will be enforced at all as to joint tort-feasors. Selz v. Unna, 6 Wall. 328; Chicago City v. Robbins, 2 Black, 418.</p> <p>But assuming that the right rests in contribution and also. that it is immaterial that the element of equal obligation for the damage on account of which it is claimed is wanting, still petitioner has mistaken the forum. A proceeding in rem can only be maintained on a maritime contract or tort giving rise to a lien existing at the time the action is brought. If no lien arose, or having arisen has been waived or- lost, a proceeding in rem will not lie. The Sabine, 101 U. S. 384, 388; The Rock Island Bridge, 6 Wall. 213, 215. It is not sufficient to support a proceeding in rem that the cause be maritime. The further essential element is the continuing existence of a maritime lien. Notwithstanding an Original liability may be maritime, and payment may carry with it an implied or express promise or obligation on the part of another to bear the whole or a part of the amount so paid, the new promise or obligation is not maritime so as to be within the jurisdiction of admiralty. Fox v. Patton, 22 Fed. Rep. 746; The Centurion, 1 Ware, 490; S. C., Fed. Cas., 2554.</p> <p>If the right in an independent proceeding (in a proper case) lies in subrogation, then petitioner must fail in any jurisdiction. Sheldon on Subrogation, 2; Jackson County v. Boylston Insi Co., 139 Massachusetts, 508, 510.</p>

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.</p> <p>This was an action brought by Crowe in the District Court of Santa Cruz County, Arizona, against Trickey, administrator of the estate of N. H. Chapin, deceased, to recover the sum of five thousand dollars' as commission on a sale alleged to have been effected by Crowe for Chapin, during his life, of a one-fourth interest in a mine. The case was tried by the District Court without a jury, a jury having been waived by agreement of the parties, and that court made findingsvof fact and stated conclusions of law therefrom, upon which it rendered judgment in Crowe’s favor, January 10, 190.2, to be paid in due course of administration. From that judgment the case was carried by appeal to the Supreme Court pf the Territory of Arizona,' which, March 20, 1903, reversed the judgment, and remanded the case to the District Court, with directions to render judgment for defendant. 71 Pac. Rep. 965.</p> <p>The record states:</p> <p>“In the above entitled action the Supreme Court finds the facts to be as follows:</p> <p>“I. Previous to March, 1899, a mine known as the Pride of the West Mine was owned by three parties. A man named Olsen owned one-half thereof, and Norman H. Chapin, the defendant’s intestate, and Jerry Neville each owned one-fourth interest therein.</p> <p>“ In March, 1899, the plaintiff Crowe brought this mine to the attention of one Emerson Gee and his associate A. R. Wil-fley. Subsequently, in the latter part of March, 1899, Wilfiey purchased Olsen’s one-half interest, and made an agreement with Chapin and Neville, in pursuance whereof , a deed to the remaining one-half interest was executed by Chapin and Neville, and placed in escrow, the terms of the escrow agreement providing that the deed was to. be delivered'to Wilfiey upon the payment by him of the sum of $100,000 in cash, on or before the 1st day of April, 1900.</p> <p>“II. It- was verbally agreed between Crowe on- the one part, and Chapin on the other, representing himself and Neville,' that Crowe was to receive ten per cent of the purchase money .received by them for their interest in the mine, as commission for making the sale. Such deed and escrow agreement were executed by Chapin and Neville on the 1st day of April, 1899.</p> <p>“III. Prior to the 1st day of April, 1900, Chapin and Neville both died.</p> <p>“M. M. Trickey was appointed administrator of Chapin’s estate and one Henry H. Harmon was appointed administrator of Jerry Neville’s estate.</p> <p>“Wilfley failed to pay the money and take the property under his option, and after the 1st day of April, 1900, at the expiration of the- time mentioned in the escrow agreement, and in accordance with the terms thereof, the deed in escrow was returned to Trickey, the administrator of Chapin’s estate.</p> <p>“ IV. Thereafter, and on the 7th day of April, 1900, upon the payment of $1,000 by Wilfley, the administrators of these two estates made another agreement with Wilfley, by the terms of which they agreed to execute a deed to a one-half interest owned by the two estates, upon the payment of the purchase price of $100,000, in specific amounts, on different dates therein expressed. This option also lapsed.</p> <p>“V. After said lapse, and on the 19th day of June, 1900, M. M. Trickey, as administrator of the'estate of Chapin, entered into another agreement, which was offered in'evidence by the plaintiff, .and appears in the bill of exceptions as ‘ Exhibit 3.’</p> <p>“By this agreement, Trickey as administrator, gave to Wilfley an option to purchase the one-fourth interest in the mine owned by the estate of Chapin, and obligated himself to execute to Wilfley a deed for such interest upon the payment of $5,000 in cash, $5,000 within three months; the further sum of $5,000 within'six months; the further sum of $5,000 within nine months; the further sum of $5,000 within twelve months; and the further sum of $25,000' within eighteen months.</p> <p>“The plaintiff Crowe had nothing whatever to do with either of the last mentioned options, or with the sale of the property after the death of Chapin.</p> <p>“VI. In pursuance to this option, Wilfley paid to Trickey the sum of $5,000 in cash on the 19th day of June, 1900; and the following sums on the following dates, respectively: $5,000 on September 19, 1900; $5,000 on December 19, 1900; $5,000 on March 20, 1901; $5,000 on June 17, 1901; $25,000 on December 7, 1901.</p> <p>“VII. The above mentioned agreement (Exhibit 3) was only an option to purchase, and under it there was no obligation on the part of Wilfley to pay any portion of the purchase price, and no obligation on the part of Trickey to deliver the deed mentioned in the agreement until the last payment of $25,000 in December, 1901, had been made.</p> <p>“VIII. On the110th day of December, 1900, Crowe presented to Trickey, as administrator of Chapin's estate, in accordance with the law of the Territory of Arizona, his claim against the estate of Chapin for ‘Ten per bent of the purchase price of the Pride of the West Mine, agreement for the sale of which was entered into about April 1st, 1899, and which said agreement of sale was made by Chapin and Neville to A. R. Wil-fley, and which sale was brought about by the said George W. Crowe, upon the agreement that he was to receive ten per cent commission upon said purchase-price from said Chapin and Neville, one-half of said ten per cent being'$5,000.’</p> <p>“IX. This claim was rejected by the administrator, and he thereupon brought this action in the District Court of Santa Cruz County on the 25th day of January, 1901, at which time' the estate of N. H. Chapin, deceased, was solvent, and amply able to pay all debts of the said estate, and the said Chapin nor the said Trickey nor any one else had paid to the plaintiff the said sum of $5,000, or any part thereof, or anything on account thereof.</p> <p>“The case was tried before the court, without a jury, a jury having been by agreement of parties waived, and the court ■made the following findings of fact:</p> <p>[Here follow findings of fact and conclusions of law by the District Court, upon which judgment was rendered in favor of the plaintiff, and an appeal prayed therefrom to the Supreme Court as stated.]</p> <p>“The only statements of fact in the record were contained in the foregoing findings of fact, and in a bill, of exceptions. The said bill of exceptions, which was transmitted to the Supreme Court of Arizona with the record in this case, did not state, that it contained all of the evidence which was introduced upon the trial of the case in the‘District Court, nor upon the points presented to the Arizona Supreme Court for its decision, nor does it otherwise appear from the record in the case that all of the evidence which was introduced upon the trial of the .case in the District Court was before the said Supreme Court of Arizona. The abstract of the transcript which contained the evidence stated that ‘ the defendant by his bill of exceptions, which contained all the evidence taken on said trial, and which is as follows:’ then follows the bill of exceptions reciting the testimony of the different witnesses, covering some 23 pages, and at the conclusion thereof the following allowance:</p> <p>“ ‘The foregoing bill of exceptions was presented to me for allowance on the 24th day of January, 1902, and was by me on the same date submitted to Messrs Hereford & Haz-zard,. attorneys for the opposite party, who made no objection thereto, whereupon the said bill of exceptions is now by me’ signed, approved and allowed as of the said 24th day of January, 1902. Geo. R. Davis, Judge,’ but the record contains no certificate from the clerk or court that the evidence contained in the bill of exceptions constituted all of the evidence taken on the trial in the lower court, and that fact is controverted by the counsel for the appellee.</p> <p>“The Arizona Supreme Court found the following facts:</p> <p>“I. That the efforts of the plaintiff Crowe resulted in procuring the purchaser Wilfley not to purchase absolutely, but to take an option On the purchase-of the property involved, for onehúndred thousand dollars^; that Crowe’s principals accepted á deed.to the property and placed it in escrow; that although Chapin.died 'before:the expiration of that escrow agreement, the deed executed by him remained subject to the order of the purchaser, and that if he had availed himself of the terms of that agreement, the sale would have been completed and plaintiff. Crowe would have been entitled to his commission, but that Wilfley failed to make the payment and take up the deed, and, after the expiration of the option and after Chapin’s deatfl, the deed' was returned to the administrator of Chapin’s estate and the transaction was closed without any sale being made.</p> <p>• “II. That the sale of the property that was subsequently effected was the result of the negotiations, between Trickey, the. administrator of Chapin’s estate, and Wilfley; that before the daté of the sale, Crowe’s power or authority to act in the matter had been terminated, and his agency revoked by the death of Chapin.'</p> <p>“III. That in regard to the latter negotiations, Crowe rendered no services to Trickey, received no appointment or agreement from Trickey in reference to the.matter, and took no part whatever.in the ultimate sale.</p> <p>“IV. That the plaintiff Crowe did not, between -the 8th day of February, 1898, and the 11th day of January, 1900, bring about a sale of Chapin’s interest in the property in controversy. '</p> <p>“V. The. said A. R. Wilfley paid to the said defendant the sum of fifty thousand dollars, as follows; April 7, 1900, five hundred dollars; June. 19, 1900, four thousand five hundred dollars; Septembér 19, 1900, five thousand dollars; December 19, 1900, five thousand dollars; March 20, 1901, five thousand dollars; June 17,1901, five thousand dollars; December 7, 1901, twenty-five thousand dollars, not for the right, title and interest of the said Norman H. Chapin but for the ‘right, title and interest of the said estate of Norman H. Chapin, deceased, in and to ’' the said property, in Compliance with the terms of the contract of sale and title bond executed to the said Wilfley by Trickey, the administrator of said estate.”</p> <p>[Here follow conclusions of law and judgment.]</p> <p>The finding of the Supreme Court of Arizona is conclusive of the fact that none of the evidence given at the trial of the case in the District 'Court was preserved and carried to the Supreme Court of Arizona, except that contained in the bill of exceptions. The finding of the Supreme Court of Arizona is also conclusive of the fact that this bill of exceptions did not state that it contained all the evidence which was introduced upon the trial of the case in the District Court, nor upon the points presented to the Supreme Court of Arizona for its decision. The finding of the Supreme Court' of Arizona is also conclusive of the fact that it does not “ otherwise appear from the record in the case that all of the evidence which was introduced upon the trial of the case in the District Court was before the said Supreme Court of Arizona.”</p> <p>The Supreme Court of Arizona erred in reviewing the case upon' the. evidence and reversing the judgment in the absence of a showing that all of the evidence in the case was before it. United States v. Copper Queen Consolidated Mining Co., 185 U. S. 495; Russell v. Ely, 2- Black, 575; Gardner v. Babcock, 3 Wall. 240; Terns Pacific R. Co., v. Cox, 145 U. S. 593; Territory v. Flores, 3 Arizona, 215, 77 Pac.. Rep. 491; Paul v. Cullom, 2 Arizona, 16; Territory v. Clanton, 3 Arizona, 1, 20 Pac. Rep. 94; Score v. Griffin, 80 Pac. Rep. 331; 2 Ency. Pleading & Practice, 441.</p>

Held: therefore, that, under the laws of the State, an “affidavit and complaint may be included in one instrument of writing, if it contains all the essentials of both.” And it was held that the complaint in the proceedings attacked did contain those essentials.

<p>The requirement of parallelism of the end lines of a mining claim in § 2 of the act of May 10, 1872, 17 Stat. 91, Rev. Stat., par. 2320, does not apply to a patent issued on an application made prior to the passage of that act.</p> <p>Where the construction by the land office of an act of Congress in regard to mining claims agrees with the decisions of the Circuit Court and the state courts, unless the meaning of the act is plainly the other way, this consensus of opinion and practice must be accorded considerable weight.</p> <p>Section 3 of the act of May 10, 1872, is to be construed broadly in favor of the right of a claimant who had located prior thereto to follow all veins apexing within the surface of his claim in view of the provisions of §§12 and 16 that the act should not impair rights or interests acquired under ' the existing laws.</p> <p>In the construction and effect of a conveyance between private parties this court follows the state court.</p>

<p>APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF Columbia.</p> <p>This suit was brought in the Supreme Court of the District of Columbia by the appellant, who is the ancillary receiver for the New South Building and Loan Association of New Orleans, Louisiana, hereinafter called the company, against the owners of the real property described in the bill, to establish an equitable lien upon the property for the value of improvements placed thereon with money which the company loaned to one Brádshaw for that purpose, Bradshaw claiming to be the owner at the time. After hearing, the bill was dismissed on its merits by the trial court, and the decree of dismissal was affirmed by the Court of Appeals of the District. The opinions of both courts are to be found in 22 App. D. C. 368. The receiver has appealed here.</p> <p>The title to the property, which consisted of certain numbered lots in square number 939 in Washington, had been in dispute some time prior to 1891. During the year 1889, 1890 or 1891 one Aaron Bradshaw, acting, as alleged, as agent of one John H. Walter, who claimed to have acquired the title of George Walker, entered upon and took forcible possession of the lots in question, and proceeded to erect a small brick structure on the corner lot, whereby to continue to hold possession.</p> <p>The respondents herein claim to be the owners of these lots, and in the latter part of 1891 they or their grantors commenced four - actions of ejectment in the Supreme Court of the District to recover possession of separate and undivided interests in the designated “ink-lot” number one, and subsequently, by proper amendments, other lots in the same square, comprising the property involved herein, were included in the declarations in those actions. A statement of facts regarding the title to these various lots may be found in Brad-shaio v. Ashley, 14 App. D. C. 485, and in this court, upon review of that decision, in 180 U. S. 59, 60, where the expression “ink-lot” is explained as referring to certain ink numbers on a map of the lots in square 939, on file in one of the public offices of the city, and which also had pencil numbers, on it, which were different. In that litigation the Ashleys, the respondents herein, finally established their right to the possession of the property and obtained judgment to that effect against Bradshaw, defendant in the ejectment actions, in the Supreme Court of the District some- time in 1897 and in this court in 1901. These respondents were thereupon placed in possession of the property, including these lots.</p> <p>While the litigation in these ejectment actions was pending, and some years before -judgment therein, Bradshaw, while defending them, became a stockholder in the company in order to obtain a loan from it, and succeeded, in October, 1893, in borrowing twenty thousand dollars from the company, secured by a deed of trust upon the property in litigation in the actions of ejectment other than “ink-lot” one above mentioned. The deed was duly recorded and the money was to be used for the construction of buildings, which were subsequently placed on these lots. The money was advanced to Bradshaw by the company-in installments, the last being in April, 1894.</p> <p>It was obtained from the company by means, as alleged, of a fraudulent combination between Bradshaw and one Walter, the president of the local board of directors of the company at Washington, (who claimed to have been the owner at one time of the property, but whose title, whatever it was, had been acquired by Bradshaw), together with the local attorney of the company in this District. The local attorney, in carrying out the alleged fraud, sent a defective so-called “chain of title,” which, nevertheless, had been accepted by the local board of the company in Washington. It omitted certain tax and other deeds under which the respondents claimed title in themselves. This defective paper was continued by other examiners of the title, but was not revised by them. The certificate regarding the title was sent, with the defective chain of title, to the company in New Orleans by the local attorney about May 26, 1893. The certificate approved the application for the loan, but such loan was not acted upon favorably at that time. Subsequently, in October, 1893, the loan was made, the company, as is stated, relying upon the certificate of the local attorney for the period which it covered, and the certificate of the other examiner for the time thereafter passing until the making of the loan. The company Iras insisted that it acted at all times in good faith and made ‘its advances upon the sécurity of the trust deed, which.it supposed was perfectly good. The trial court found that before the money was paid to Bradshaw, upon the security of tlfis trust deed, the company was aware, through its general attorney in New Orleans, of the fact that a suit in equity had (theretofore in 1890, and before the ejectment actions) been brought by the Ashleys against Bradshaw, Walter and others, in which the plaintiffs therein claimed ownership of these lots, and wherein they asked for an injunction to restrain the defendants from setting up any title to them. The bill on file in the equity suit showed a common source of title to all the lots mentioned therein, which included the lots here in question. The attorney also knew that, although the suit had been dismissed, yet it was only for want of prosecution, and was “without' prejudice.” The New Orleans attorney wrote ,to the' Washington attorney, who then had charge of the matter, calling his attention to these facts. No notice seems to have been taken of the letter, but the certificate of. title by the examiner was-given after its receipt. The company insists that during all the time it made advances to Bradshaw under the deed of trust it was ignorant of the existence of these ejectment actions, and at any rate did not know that they covered other than the corner lot, as described in the declarations before they were amended, and the amendments they were ignorant of, because, as is alleged, the clerk of the court in which the actions were pending had not properly kept the books so as to show the amendments and their nature, although they had been filed. The corner lot was not one of the lots upon which the buildings were erected.</p> <p>The trial court, in the opinion delivered, said that the complainant charged the defendants with knowledge of the advances made by the company to Bradshaw, towards the erection of the buildings; but to this allegation the defendants interposed, in their answer (which was under oath), a positive denial. They admitted that, although wholly ignorant of the source from which the money came to construct the houses, yet soon after learning that one Childs, a. contractor, was engaged in their construction they notified him in writing, January 4, 1894, that he had been represented to them as contractor and builder of the houses for which the ground had been broken, and which houses were then in course of erection, and he was thereby notified that if he, his agents or employes,- entered upon the grounds they would be held liable for trespassing thereon, as they (defendants herein) were the owners of the lots and had not given him, or anyone else, the right or permission to enter thereon for the erection of houses or any purpose whatever, and that, as the improvements were not made with their authority, they would not be responsible for any liability contracted by Mr. Bradshaw.</p> <p>The defendants, in their answer, also allege that it was not until in or about February, 1895, that defendants, or any of them, learned of the advances made by the company or of the existence of the deed of trust. The trial court, in its opinion, stated that although “there was no evidence contradicting . either of these denials, nor of actual knowledge possessed by the defendants of the matters thus denied, still it seems to me there is evidence in the record that facts might readily have been ascertained by them from which they might well have learned at an earlier time of the building and of the source from which the money employed was derived.” While not finding that the defendants had actual knowledge of the advances made by the company, the court did impute knowledge of certain conveyances made to Bradshaw, and of the existence of the deed of trust to the company at earlier dates than those assigned in the answer, February, 1895. And iii relation to an offer of' compromise the joint answer alleged that after that time, viz., about May 31, 1895, during negotiations for the compromise of the differences between the parties, Mr. H. F. Beardsley, one of the defendants, wrote to the attorneys representing the company in behalf of himself and his associates, offering to sell to the company the lots upon which the houses then were “at their present market value or price, said value not to exceed the price at which similar lots (unimproved) in the same or contiguous squares are offered for sale. Upon the payment of said price, or sum, we will convey our title to them by deed or quitclaim, or make a binding agreement to so convey upon the determination of the pending suits, or a deed in escrow, as counsel shall advise. We will hold this offer open until the 1st of July next.” ' This offer was not accepted, but there is nothing stating what, if any, objections were made to it.</p> <p>Bradshaw had, in 1894, defaulted in his payments of amounts due for his stock in the company, which he had taken in order to procure his loan. Thereafter some arrangements were attempted between him and the company in regard to making his payments, but they fell through, and nothing could be done in the way of collecting anything on the mortgage or deed of trust for the reason that the ejectment actions resulted unfavorably. The company, in 1899, became embarrassed and went into the hands of a receiver in New Orleans, and the same person was appointed ancillary receiver in this District, and brought this suit with leave of the court.</p> <p>The Court of Appeals held that Bradshaw was an occupant of the premises in bad faith, with the fullest possible knowledge of the rights and claims of the appellees, and that it could not be supposed that the grantee of an occupant in bad faith could have any better .right than his grantor had.</p> <p>Some other facts are stated in the course of the opinion.</p> <p>The appellees, by standing by and • acquiescing therein while the buildings were being erected on the property claimed by them, with the funds of the association, advanced in good faith, are estopped to deny the right of the appellant to a lien on the property to the extent of the value of the improvements. 2 Beach’s Eq. 1107; Sumner v. Seaton, 47 N. J. Eq. 103; Morgan v. Railroad Co., 96 U. S. 720; Bryndon v. Campbell, 40 Maryland, 331; Mclntire v. Pryor, 10 App. D. C. 440.</p> <p>The appellant, as receiver of the New. South Building and Loan Association; occupies the position of a bona fide purchaser for value and without notice and cannot be deprived of protection in equity by the bad faith of Bradshaw, the grantor, or the fraud of the members of the local board who participated with him in fraud on the association. Woodward v. Blanchard, 16 Illinois, 432; Searl v. School Dist., No. 2, 133' U. S. 553; Wright v. Mattison, 18 How. 50. As to notice through agent, the agent’s fraud relieves his principal. Mechem on Agency, art. 723; 2 Sugden on Vendors, *p. 1043, § 20; 2 Pomeroy’s Eq. Juris., art. 675. The equity suit was not notice to the company; to affect a purchaser with notice requires a close and continuous prosecution of the lis pendens, and this is required by Lord Bacon’s rule. 2 Sugden on Vendors, p. 1046, art. .24; 1 Johns. Ch. 576.</p> <p>Without reference to the connivance and estoppel of the appellees, the appellant, as receiver of the New South BuiMing and Loan Association, as an improver in good faith, is entitled in equity to a lien on the property to the extent of the value of the improvements bestowed with the funds of the association. Searl v. School District, 133 U. S. 553; Bright v. Boyd, 1 Story C. C. -478, 492.</p> <p>The opinion of the Court of Appeals in Anderson v. Reéd, concedes that the doctrine of Mr. Justice Story in Bright v. Boyd has been adopted and followed by other equity courts, citing cases of Thomas v. Thomas, 16 B. Mon. 421; Vallee v. Fleming, 16 Missouri, 152; Hatcher v. Briggs, 6 Oregon, 131; McKelway v. Armour, 10 N. J. Eq. 115, and Union Hall Association v. Morrison, 39 Maryland, in all of which the opinion of Mr. Justice Story in the case of Bright v, Boyd, is accepted and emphatically endorsed.</p>

<p>While a non-resident defendant corporation may not lose its right of objecting to the jurisdiction of the court on the ground of insufficient service of process by pleading to the merits pursuant to order of the court after objections overruled, it does waive its objections and submits to the jurisdiction if it also sets up a counterclaim even though it be one arising wholly out of the transaction sued upon by plaintiff and in the nature of recoupment rather than set-off.</p> <p>At common law, as the doctrine has been developed, a .demand in recoupment is recognized as a cross demand as distinguished from a defense.</p>

Held: appropriated, -etc., in such manner as the legislature of the State should provide, Congress intended to designate, and the act will be so construed, such legislature as should be established by the constitution to be adopted, and which should act as a parliamentary body in subordination to that constitution; and it did not give the management and disposal of such lands , to the legislature or its members…

The-appellant, who. was plaintiff below,- appeals' frdm.the judgment’ of the Circuit Court of . Appeals (138 Fed. Rep. 394), affirming a decree of the United Statés Court for the Central District of Iridian Territory, dismissing the'appellant’s.'bill on the merits: 82.

The facts are stated in the.opinion. It is'the duty of the.courts.to prevent the exercise of arbitrary and unreasonable discriminations made under the-'color of the police power, though that power from its nature is not susceptible of any exact definition or limitation. It is well settled that the courts will interfere in proper cases. Gulf, Gol. & 3: F. By. v. Ellih, 165 U.'S: 150; Lawton v. Steele, 152.

<p>Decided on authority of Bacon v. Walker, ante, p: 311.</p>

The undisputed evidence in this record shows that this suit was'collusi-vely brought by Mr. Mills at the instigation of and for the -benefit of the People’s Gas Light and Coke Company, for the purpose of conferring jurisdiction upon a Federal court in a case where such jurisdiction was otherwise wanting.

The facts are stated in the opinion. Jurisdictional qualities must exist as to all parties in order to confer jurisdiction. Great Southern Hotel Company. v. Jones, 177 U..S,. 449. The United States, the real party in interest, as defendant, has not consented to be sued, and cannot be sued without its consent, even by a State.

The facts are stated in the opinion. During the interval of time between, December 17, when -claimant was detached from the battle ship Massachusetts, and. December .22, when he was discharged, from the service, a period of five .days, he was not performing sea service, but was on leave or waiting-orders pay;. and therefore was • entitled to compensation Muring such time at the rate-of $1,000 a year.

Held: after due advertisement, and all interested parties have'been afforded an opportunity to present their views.. Attention is respectfully invited to the accompanying report on the subject, dated the 8th instant, by Captain Sibert, and to its accompanying papers.

In the District. Court of Tarrant County, Texas, on July 28, 1902, the State-of Texas recovered a judgment .against .'the Gulf, Colorado arid Santa Fé Railway Company for one hundred dollars as -a penalty for extortion in a charge for 'the transportation of a carload of corn from Texarkana, Texas, to Goldthwaite, Texas. This judgment was sustained by both the Court of Civil Appeals, 32 Tex. Civ. App. 1, and the.Sü-' preme Court of the State. 97 Texas, 274.

The facts are stated in the opinion. The citizenship court was not a court but a commission; it was but an arm of the administrative branch of the government and could not exercise judicial functions and therefore could not vacate a decree entered by the regularly established courts.

<p>ERROR TO, THE’ COURT 'OF CIVIL APPEALS FOR THE SECOND-‘-SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.</p> <p>The facts are stated in the opinion.</p> <p>If an act of Congress gives a right to a party aggrieved without' specifying a remedy, it might be enforced in a state court; but, if a right is conferred by statute and a specific remedy, provided, or a new power and means of execution granted, the right can be enforced only in the mode provided in the act.</p> <p>A party who seeks damages alleged to have been sustained in consequence of a violation by a common carrier of the' Interstate Commerce Law, as the act provides for redress by a procedure either before the Commission or by suit in a Federal court, cannot bring suit before a state court, which is without jurisdiction to" enforce the right, but is relegated exclusively to the Commission or Federal court; otherwise, the party would have a third alternative or mode of redress not contemplated by the act. He is restricted to one of two remedies.</p> <p>Where a right arises under the laws of the United States, Congress may, if it sees fit, give to the Federal courts exclusive jurisdiction.</p> <p>When a right is given by statute, and a specific remedy pro-, vided, or new power, and also the 'means of execution, the power can be executed, and the right vindicated, in no other way than that prescribed by the act.</p> <p>• The Interstate Commerce Act providing that remedies thereunder must be sought in the Federal courts or before the • Intefstate Commerce ’Commission, but not in both, by •necessary implication excludes the idea of jurisdiction in any other tribunals. The' act confers the right and provides the remedy and means of enforcement. Interstate Commerce Act, February 4, 1887, and Amendment 1, Supp., Rev. Stat., p. 529, especially §§ 8, 9; Frank T. Copp y. L. & N. R. R. Co., 43 Louisiana) 511, 514; G., C. & S. F. v. Moore,, 83 S. W. Rep. 362; Van Patten v. Chicago, M. & St'. P., 74 Fed., Rep. 981; Éx parte McNeil, -13 Wall. 236; Gilman v. Philadelphia, 3-Wall. .-713; Swift v. PKiladelphia R. R. Co., 58 Fed. Rep. 858; Claflin v. tiousemah, -93 U. S.. 130 (see p. 137); The Moses Taylor, • 4 Wall. 411, 425, 431; Story on the Const:, §§ 436-447.</p> <p>The .only lawful rate that can be charged and collected by a common carrier upon an interstate' shipment is the legally filed, ’ published and posted rate under the aet to regulate commercé, and mo cause of action for damages or otherwise .will lie .against a carrier for collecting its duly-published, filed and posted rates. If this rate be unreasonable, the only remedies the-shipper has are those provided in § 9 of the Interstate Commerce Act. By the terms of that act, it is illegal for either •anorpor&tion or person to give or receive any rebate, concession,'etc. and declaring sarnie to be unlawful, and the person of corporation so doing to be guilty of a misdemeanor. By §§ 6, 10 .'of the original.act, and .by the Elkins amendment of February 19, 1903,. it is provided' that it shall be a misdemeanor "and unlawful, punishable by a fine, for any person, persons or corporations to .grant, give .or solicit, accept or receive,. any rebate or- concession in respect to the transportation of. - property an interstate or foreign commerce, whereby. . any such property shall, by • any device whatever, be • transported at a.less rate-than that named in the tariffs published and filed by such.'carrier,- as is required by said'act- to regulate commerce .and..the acts .amendatory thereof. Texfis & Pacific Ry. Co. -v. Mugg ADryden, 202 U. S. 242; Hefley. v. Railway. Co,, 158-U.. S. 98; Southern Ry. v. Harrison, .119 Alabama, 539; M-, K.'& T. Ry. Co. v. Trinity Lumber Co., 1 Tex. Civ. App; 553; Texas & Pacific Ry. Co.• v. Clark, 4 Tex.' Civ. App. 611; M., K. & T. Ry. Co. v.-Stoner, 5 -Tex. Civ. App. 50; Dillingham v. Fischel, 1 Tex. Civ. App. 546; S. A. & A. P. Ry. Co. v. Clements,- 20 Tex. Civ. App. 498; Act of Congress of February 4, 1887,1 Supp. U. S. Stats. 529, and amendments thereto, especially §§ 6, 10.</p> <p>The highest court of a State may administer the. common law according to its own understanding and interpretation, without liability-to a review in the Federal Suprenae Court, unless some right, title, immunity or privilege, the creation of the Federal power, has been asserted or denied. Penna. R. R. Co. v. Hughes, 191 U. S. 477, and cases there cited.</p> <p>This common law right, as thus administered, was not taken away by the Interstate Commerce Act (approved February 4, 1887) .either directly or by necessary implication. „ Statutes in derogation of the common law are to be strictly construed and are not presumed to make any alteration in the common law further or otherwise than the clear import of the statutory language necessarily requires. 26 Am. & Eng. Ency. of Law, (2d ed.) 662, and authorities cited, including Brown v. Barry, 3 Dali. 365; Wilson v. Lenox, 1 Cranch, 211; McCool v.' Smith, 1 Black, 459; Shaw v. Railroad Co., 101 U. S. 557. Affirmative words without negative words do not annul the common law. Unless the intent of a statute is manifest, the constructive repeal of the common law,:by implication, cannot be inferred. Jennings v. Commonwealth, 17 Pick. 82; SÍate v. Norton,^ 23 N. J. L. 39‘. When a statute merely provides ,a new remedy for a preexisting right, the new remedy is merely cumulative. 26 Am. & Eng. Ency. of Law, (2d ed. 614, 671, and cases cited.</p> <p>The interpretation “clause of, the Interstate Commerce Act sp§cially provides that “ nothing' in this act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this, act are in addition to such remedies.” A statutory declaration contained in the body of an act, declaring the meaning thereof as well as the intent of the legislature in enacting it, is mandatory and controlling on the courts. Farmers Bank v. Hale, 59 N. Y. 53; Commonwealths. Curry, 4 Pa. Super. Ct. 356; Snyder v. Compton, 87 Texas, 374; Rossmiller v. State, 114 Wisconsin, 169.</p> <p>No right, titlé, privilege or immunity under a Federal statute specially pleaded and set up in the state court was denied by that court. Eizer v. Texarkana & Ft. Smith Ry. Co., 179 II. S. 199. Even if the state court could not try questions involving the construction of the Interstate Commerce Act, yet this suit being brought on the common law liability of plaintiff in error, jurisdiction to hear and determine the facts pleaded by defendant in error could not be defeated by facts outside of the allegations unless a plea had been interposed to the jurisdiction; such plea showing want of jurisdiction in the trial court, and further showing a court with jurisdiction.</p>

<p>Texas & Pacific Railway v. Abilene Cotton Oil Co., ante, p. 426, followed as to abrogation by passage of Interstate Commerce Act of common-law remedy for recovery of unreasonable freight charges on interstate shipment where rates charged were those duly fixed by the carrier according to the act and which had not been found unreasonable by Inter- ■ state Commerce Commission.</p> <p>A tariff of rates of which schedules have been filed by a carrier with the Interstate Commerce Commission and also with its freight agents is in force and operative although the copies thereof may not have been posted in the carrier’s depots as required by the act. "■ '</p> <p>Such posting is not a condition precedent to the establishment of the rates but a provision for affording facilities to the public for ascertaining the rates’actually in force.</p>

Held: it follows th'at a special term of a Circuit Court of the United States, as the expression is employed in Rev. Stat. sec.. 670, is a session ordered for the disposal of business, supplementary to a regular term, and to be held at the place fixed by Congress for holding such regular term.

Held: in view of the legislation of Congress, “that the plaintiff herein was born in lawful wedlock and is the sole heir of Joe Kalyton, deceased, and-, as such, entitled to the possession of the real property of which .he died seized'.” The decree of the trial court was, therefore, reversed, and a decree was entered in favor of the appellant in accordance with the- opinion. A motion for a rehearing was made and overruled.

<p>The guarantees extended by Congress to the Philippine Islands are to be interpreted as meaning what the like provisions meant when Congress made them applicable to those islands.</p> <p>While a complaint on a charge of adultery under the Penal Code of the Philippine Islands may be fatally defective for lack of essential, aver-ments as to place and knowledge on the part of. the man that the woman was married, objections of that nature must be taken at the trial, and if not taken, and the omitted averments are supplied by competent proof, it is not error for the Supreme Court of the Philippine Islands to refuse to sustain such objections on appeal.</p> <p>While the Supreme Court of the Philippine Islands hears an appeal as a trial de novo and has power to reexamine the law and the facts it does so entirely on the record.</p>

The defendants in error, who were the plaintiffs below, and are hereafter so called, brought an action in the Supreme Court of the District of Columbia on December 10, 1904, against the plaintiffs in error and others, hereafter called the defendants, on a bond, and obtained a judgment, which was- entered February 24, 1905, for 15,000 and interest thereon from that date. On appeal the Court of Appeals of the District affirmed the judgment, 26 App.

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

The plaintiffs in error, who were plaintiffs below, filed their complaint against the railway company in the Circuit Court of the United States for the Western District of Arkansas, Texarkana Division.

<p>Where the bankrupt, within four months of the petition, mortgages his property to a creditor having knowledge of his insolvency and thereafter conveys it to a third party- subject to the mortgages and the creditor forecloses and as a result of the transaction obtains a greater percentage on his .claim than other creditors of the same class, the transaction amounts to a voidable preference and the trustee .can recover from the creditor the value of the property so .transferred.</p> <p>A trustee in bankruptcy can maintain a suit to recover' the value of a voidable preference without first electing to avoid such preference by notice to the creditor- receiving the preference and demand for its return.</p> <p>A demand is not necessary where it is to be presumed that it would have been, unavailing.</p> <p>The right of the trustee in bankruptcy to' recover'property obtained in fraud of the bankruptcy act . is not varied by how the property would be administered and distributed between the different classes of creditors; all creditors, whether general or preferred, a^e represented by the trustee.</p> <p>Where there is a voidable- preference the creditor receiving it cannot, in a " suit of the trustee in the state court to recover the' value thereof, litigate the validity of other claims against the ban.krupt and whether other creditors, have received, and not been required to surrender, preferences.</p>

The defendant in error Whittredge, who was-.trustee of, certain property held in trust under the’ will of Solon O'. Richardson, who died in 1873, filed this bill for instructions in the Supreme Judicial Court of the State of Massachusetts.

This suit was brought in the Chancery Court for the county of Jefferson, State of Tennessee, by defendant in error against. the plaintiff in error and the Southern Railway Company, for damages alleged to have been received by the defendant in error to certain carloads of corn shipped over the Southern Railway Company from certain points- in Tennessee to be delivered to defendant in error or its order at Birmingham, Alabama.

<p>Where several persons are indicted under one indictment an order of the court granting separate trials makes separate independent causes and entitles the clerk to separate docket fees under par. 10 of § 828, Rev. Stat. Clerk’s fee for recording abstract of judgment allowed on folio basis under par. 8 of § 828, Rev. Stat., in addition to the docket allowed by pars. 10, 11, 12 of that section.</p>

The facts are stated in the opinion. • The charter granted by the State of Tennessee to the Trustees of Carrick Academy created a contract, and the rights of plaintiff in error under its charter were impaired by virtue of the act of 1881, authorizing the lease of this property to Winchester Normal College. ' The Federal question as to the impairment of the obligation of the contract was sufficiently raised in the pleadings.

This case comes here on the following-certificate: “The United States Circuit Court of Appeals for the Eighth Circuit, sitting at the City of St. Louis, Missouri, on the eighth day of December, a. d. 1905, cértifies that the record on file in the above entitled cause, which is pending in such court upon a writ of error duly issued to review a judgment rendered in such cause in favor of the defendant in error in the Circuit Court of the United States for the Southern District…

Held: that: The charges of fraud and duress were not sustained. In an independent proceeding attacking the judgment of an assessing board it is.improper to' cross-examine the inembers in an attempt to exhibit confusion in their minds as to the method by which the result was reached.

<p>CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.</p> <p>The facts, which involve the. jurisdiction of the Circuit Court of appeals to -review orders in contempt, are stated in the' opinion.</p> <p>There is no magic about a contempt case which forbids Appellate Courts to rectify a wrong done by the lower court.</p> <p>The only difficulty has been to find the proper machinery.</p> <p>When the United States Circuit Courts of Appeal were established, their appellate jurisdiction included criminal cases. As this proceeding in contempt is a criminal proceeding, that court has jurisdiction. Bessette v. Conkey, 194 U. S. 324; Christensen case, 194 U. S. 458; Alexander case, 201 U. S. 117.</p> <p>All cases of contempt are primarily criminal in their nature, and are separable from any litigation to which they are incident..</p> <p>All cases of disobedience to the orders of a court, which are properly contempts, are criminal cases, and that the term civil contempt is properly applicable to cases which are in substance executions,, such as attachments for the payment of money, fines which are merely compensatory in their nature, orders for the payment of alimony, and orders for the payment of sums found to be due in probate courts and in similar cases. New Orleans v-. Steamship Co.,-20 Wall. 387, 392; Passmore Williamson case, 26 Pa. St. 9.</p> <p>The appellate court has authority to relieve from a void order. In re Chetwood, 165 U. S. 443; Commonwealth v. Perkins, 124 Pa! St. 36.</p> <p>A writ of error is the proper method of review. Bullock v. West, 129 Fed. Rep.. 105; Bessette v. Conkey, 194 U. S. 324.</p> <p>The Circuit Courts of Appeals have jurisdiction to review the action of Circuit or District 'Courts by writ of error or appeal only after final judgment in the court below. Act of March 3, 1891, ch. 526,. 26 Stat. L. 828.</p> <p>A final judgment or decree is one which leaves nothing further to be done in the case except execution of the judgment of the court. Grant v.’ Phoenix Life Ins. Co., 106 U. S. 429; St. Louis &c. Ry. Co. v. Southern Express Co., 108 U. S. 24; Robinson v. Belt, 56 Fed. Rep. 328.</p> <p>It matters not that the question sought to be reviewed involves an attack upon the jurisdiction of the lower court, an appeal or writ of error cannot be considered until after the final disposition of the case. McLish v. Roff, 141 U. S. 661.</p> <p>Contempt proceedings are of- two classes, vindicatory and remedial.</p> <p>. In Bessette v. W. B. Conkey Co., 194 U. S. 234, this court fully recognized the distinction' between civil' and criminal cases. In re Nevitt, 54 C. C. A., 622; S. C., 117 Fed. Rep. 448.</p> <p>Vindicatory, contempt- proceedings are the only ones reviewable on writ of error by the Circuit Courts of Appeals prior to the termination of the main suit. - Bessette v. Conkey, Co., 194 U. S.-324; Matter of Christensen Co., 194 U. S. 458; Alexander v. United States, 201 U: S. 117; Bullock Co. 'v. Westinghoiise Co., 129 Fed. Rep. 105. ■</p> <p>Remedial contempt proceedings are a part of the main suit,'and can be reviewed on writ of' error or appeal only after final judgment in the court below. Hayes v, Fischer, 102 U. S. 121; Bessette v. Conkey, 194 U. S. 324; Heinze v.' Butte & Boston Co.; 194 U. S. 632; King v. Wooten, 54 Fed. Rep. 612; In re Nevitt, 111 Fed. Rep. 448.</p>

<p>While a combination of old elements producing a new and useful result may be patentable, if the combination is merely the assembling of old elements producing no new ahd useful result, invention is not shown.</p> <p>Where an inventor seeking a broad claim which is rejected, acquiesces in the rejection and substitutes therefor a narrower claim, he cannot after- ’ wards insist that the claim allowed shall be construed to cover that which was previously rejected; and in this case the contention of the inventor is not sustained that after striking out his broad claim he presented and obtained another claim equally broad and is entitled to relief thereunder.</p> <p>Complainant’s patent for improvements in computing scales is of the narrow character of invention which does not, as a pioneer patent would, entitle the patentee to any considerable range of equivalents; but it must be limited to the means shown by the inventor, and in this case the defendant’s construction does not amount to an infringement.</p>

The facts are stated in the opinion. The rule, that in an action upon a municipal warrant,'the statute of limitations does not commence to run against such' action until there is money in the treasury to pay the same, does not apply to an action in mandamus to compel a tax levy to pay such warrant. Turner v. Guthrie, 13 Oklahoma, 26; Barnes v. .Glide, 117 California, 1; Prescott v. Gonser, 34 Iowa, 175.

The plaintiff in error, a citizen of New York, brought in the Circuit Court for the Northern'District of Texas, a petition to try the title to 1,280 acres of land, against ten defendants,, citizens either of Texas, Kentucky of Illinois. Six of the defendants were warrantors of the plaintiff’s title, and questions arising as to them are not material here.

The plaintiffs brought an action in the District Court in the Territory of New Mexico, in which they sought to recover $75,000 as the reasonable value of the services of the plaintiff Jones, as an attorney at law, rendered to the defendants at their request. For answer the defendants pleaded a general denial and payment. The jury returned a verdict for the defendants.

The facts are stated in the opinion. An unconstitutional statute affords- protection to no one who has acted under it. And the judgment rendered in accordance with its mandate is a nullity everywhere. -Si-monds v. Simonds 103 Massachusetts, 572; Campbell v. Sherman, 35 Wisconsin, 103; Memore v. Collins, 17 Ohio St. 665; Astrom v. Hammond, 3 McLean, 107; Woolsey v. Dodge, 6 McLean, 142.

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

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

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

<p>Appeal from the District Court of- the United States for the Northern District of California.</p>

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

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia.</p>