Volume 78 — United States Reports

On certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts.

On motion to dismiss a writ of error to the Supreme Court of Illinois, brought here on the assumption that the case was shown to be within the 25th section of the Judiciary Act; the idea of the plaintiff in error having been that a statute of the State of Illinois, on the subject of interest, was brought in question in this suit, and was upheld by the court below, though repugnant to the Constitution of the United States, as impairing the obligation of contracts.

Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871), is a 6–3 ruling by the Supreme Court of the United States that held that if a governor has discretion in the conduct of the election, the legislature is bound by his action and cannot undo the results based on fraud. The Court implicitly affirmed that the breakaway Virginia counties had received the necessary consent of both the Commonwealth of Virginia and the United States Congress to become a separate U.S. state. The Court also explicitly held that Berkeley County and Jefferson County were part of the new state of West Virginia.

On motion to dismiss an appeal from the Circuit Court from the District of Louisiana; the case being this: “An act to establish a uniform system of bankruptcy throughout the United States,” approved March 2,1867,* and which gives to the District Courts exclusive original jurisdiction in matters of bankruptcy, authorizes them to declare corporations bankrupt upon certain proceedings had.

On motion to dismiss an appeal; the case being this: By the 22d section of the Judiciary Act it is enacted that decrees in civil actions may be brought here by writ of error.

Held: according to all the authorities, to operate as a repeal of the first act, for the latter act expresses the will of the government as to the manner in which the offences shall be subsequently treated.

Held: or was entitled to call for, at the best price that could have been obtained, and might have applied the entire proceeds, had they been needed, to pay that single debt. Of this, neither the stockholders nor the other creditors could have complained. What more has been done now? No doubt such a course would have involved an equal sacrifice to the company, and would, in the end, have been more disastrous to the city.

Appeals from decrees of the Circuit Court of the United States for the Northern District of Illinois in two suits; one original, the other a cross suit; The bill in the original suit was filed by the complainant to restrain the collection of a tax levied by the city of Chicago upon shares of the capital stock of the Union National Bank of Chicago, owned by him.

Collector v. Day, 78 U.S. (11 Wall.) 113 (1871), was a United States Supreme Court case that questioned the United States Federal government's ability to impose a tax upon the "salary of a judicial officer of the State." Even though this particular case favors state employees' rights, it was overruled in 1939 by Graves v. New York, where the Supreme Court ruled that the income tax imposed by the State of New York on an employee of the Federal Home Owners Load Corporation was constitutional, since there was no requirement of immunity contained in the Constitution or in any act of Congress. Collector is still important to discussions of constitutional law because of Judge Nelson's statement of the doctrine of dual federalism in the case's opinion.

This case was an action against the Western Transportation Company to recover damages sustained by the plaintiff from the loss of eighty-four bags of coffee belonging to him which the company had undertaken to transport from New York to Chicago. Th¿ company was a. common carrier, and in the course of the transportation had shipped the coffee on board of the propeller Buffalo, one of its steamers on the lakes.

Amy having obtained a judgment for money against Desmoines County, Iowa, in the Circuit Court for the District of Iowa, and not being paid, procured from the same eoui’t a mandamus against Burkholder, and several others, the supervisors of the county, to compel the levy of a tax. The mandamus not being obeyed, he sued them personally. They set up certain defences, to which he demurred. The court overruled the demurrer, and he brought the case here.

<p>In which the preceding case was affirmed.</p>

Held: or that the county judge had any authority to call such an election or to make any contract to build a court-house or to issue any such bonds or coupons, or that any such bonds or coupons were ever issued, and they append to those specific denials a general denial of each find every allegation of the declaration, which really amounts to nothing in any case in that jurisdiction, as the code of the State, which is…

This was an appeal from the Circuit Court of the United States for the District of California. The case was one of collision between the American ship Sapphire, and the French transport Euryale, which took place in the harbor of San Francisco on the morning of December 22, 1867, by which the Euryale was considerably damaged.

The case was this: The eleventh section of the Judiciary Act enacts: “That the Circuit1 Courts shall have original cognizance . . . of all suits of a civil nature, &c., where an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State.” With this provision in force, B. M. Blatchford and J. B. Newman filed their bill for the foreclosure of a mortgage executed by the Susquehanna and Wyoming Valley Bail-road and…

The words of the enactment are: “And the said court shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, .express or implied, with the government of the United States, which may be suggested to it by a petition filed therein.” When the court gives judgment for the claimant, the judgment is paid- by the Secretary of the Treasury as of course, unless within a time specified the United…

Galceran and two other sailors brought each a suit in personam, in one of the State courts of Louisiana, against Maristany, owner of the schooner Gallego, to recover mariners’ wages, and had the schooner, which was subject to a lien and “privilege” in. their favor, according to the laws of Louisiana, similar in some respects to the principles of the maritime law, sequestered by the sheriff of the parish.

The petition averred that when the note became due, April 7th, 1863, there was a civil war existing in Louisiana and other States of the Union; that all intercourse between New Orleans and the place of the then residence of the plaintiff, to wit, the parish of St. Helena, was interrupted and prohibited; that the petitioner was unable to make the presentment and demand of the note at the place of payment by reason of the existing war and the prohibition and interruption of…

Terrell and others, creditors of the First National Bank of New Orleans, which had failed and been put into liquidation, brought this bill in chancery in the court below against one Case, who on the failure of the bank had been appointed receiver of it, Hurlburd, Comptroller of the Currency of the United States,, and one May and Beauregard, citizens of Louisiana.

Held: that, although this court had since decided the tax to be illegal, yet, as it did not appear by the record that the State court passed on the legality or illegality of the tax, but might have decided the case on the construction of the State statute, this court had no jurisdiction to review the decision of the State court. ■2.

This cause came up by writ of error to the District Court of the United States for the Southern District of Mississippi. It came into the said District Court in this wise: One Francis had brought suit in the Circuit Court of Monroe County, Mississippi, November Term, 1866, against “ The Germania Fire Insurance Company of the City of New York,” upon a policy of insurance. The company appeared to the suit, and demurred to the declaration.

This was an appeal from a decree of the Circuit Court, of the United States for Iowa, dismissing a bill tiled by one James May against the executors of Antoine Le Claire and others. ■ The evidence in the case showed apparently the following leading facts, viz.: 1st. That.

Held: in a collision case, upon the evidence, to have kept on her course, and therein to have done what she ought to have done. 2 A steamer approaching a sailing vessel is bound to keep out of her way, and to allow her a free and unobstructed passage. Whatever is necessary for this, it is her duty to do, and to avoid whatever obstructs or endangers the sailing vessel in her course.

Held: that the term of the late rebellion interrupted, on the principles announced in Hanger v. Abbott (6 Wallace, 534), and in the later case óf The Protector (9 lb. 687), the running of the prescription in favor of a creditor who during the war resided in one of the loyal States.

” It had “ cognizance of all crimes and offences committed within said District, and of all cases in law and equitjq” &c. By act of 1802,† it was provided that the chief judge of the District of Columbia should hold a District Court in and for the said District, “which court shall have and exercise within said District the same powers and jurisdiction which are by law vested in the District Courts of the United States.” On the 8d March, 1863,‡ by act of that'date the courts…

<p>1. In a libel of information for the forfeiture of property, under the act of Congress of July 17th, 1862, entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of . rebels, and for other purposes,” for certain offences charged against the owner, his alleged criminality lies at the foundation of the proceeding ; and the questions of his guilt and ownership are fundamental in the case.</p> <p>2. The owner of property, for the forfeiture of which a libel is filed under the act above mentioned, is entitled to appear and to contest the charges upon which the forfeiture is claimed, although he was at the time of filing the libel a resident within the Confederate lines, and a rebel; and he can sue out a writ of error from this court to review any final decree of the court below condemning his property.</p>

Held: that when the late rebellion assumed the proportions of a territorial civil war, the inhabitants of the *315 Confederate States, and the inhabitants of the loyal States, became reciprocally enemies to each other, and that the inhabitants of the Confederate States engaged iu the rebellion, or giving aid and comfort thereto, were at the same time amenable to the municipal law as rebels.

Held: ‡ for the first time, that seizures made on land were cases at common law and triable by jury, it was still held that a libel stating the fact of seizure on land would give jurisdiction. In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually and constructively ivithin the reach of the court.

Held: in consonance with Lord Eldon’s suggestion, that if the agent acquired his information so recently as to make it incredible that he should have forgotten it, his principal will be bound.

The 12th section of the National Currency Act of June 3d, 1864, which expressly repealed this act of 1863,† gives to the banks the right, either by laws or in their articles of association, to prescribe the manuer in which stock shall be transferable on their books. • The 35th section of the same act of 1864, prohibits “ any loan or discount on the security of the shares of a bank’s own capital stock;” .also the purchasing dr holding such shares unless necessary to prevent…

By the act of April 2, 1792,* which was in force -when the lease was made, the rent was just $80 per annum, or $20 a quarter, in gold coin. But by the act of June 28, 1834,† and the act of January 18, 1837,‡ which were in force when the rent sued for fell due, the rent was $85.27 per annum, or $21.31 a quarter, in gold coin.

The defendant, in August Term, 1866, pleaded that on the day mentioned in the indictment he was in the military service of the United States, in the military district of East Tennessee, being first lieutenant of company B of the 9th Tennessee Cavalry, and bound to obey all lawful orders of his superiors, “ then and there existing and being an insurrection and civil war in said military district;” and that on the 5th day of October thereafter he was arraigned and put on trial…

The court below dismissed the bill, and the complainants appealed. Both in the court below and here several interesting and difficult questions were raised; and fully and ably argued by Messrs. H. Stanberry and J. B. Baldwin, for the complainants, and Messrs.

This was an action brought by the assignee in bankruptcy of Keller and Gladding to recover of the Second National Bank of Leavenworth the value of‘certain property alleged to have been transferred to it by them in fraud of the provisions of the Bankrupt Act.

The State of Missouri brought here, in February, 1859, her original bill against, the State of Kentucky, the purpose of the bill being to ascertain and establish, by a decree of this court, the boundary between the two States at a point on the Mississippi River known as Wolf Island, which is about tweuty miles below the mouth of the Ohio. The State of Missouri insisted that the island was a part of her territory, while the State of Kentucky asserted the contrary.

This ease was heard on the libel of information, as amended, filed by the United States against the steamer Montello, and the exception to it taken by the claimants.

The laws of Louisiana authorize a proceeding by a purchaser at judicial sale somewhat in the nature of a bill of peace to quiet and confirm the title acquired at the sale. This proceeding is called a monition, and is instituted in the same court in which the original judgment was rendered, by a publication warning all persons interested to come forward and show cause, if any they can, why the title acquired by the sale should not be confirmed.

Held: and its moneys received and disbursed, and the corporate seal kept. Error to the Circuit Court for the District of Missouri. A statute of Missouri enacts that “ shares of stock and all other interests held in steamboats, keel-boats, wharf-boats, and all other vessels,” shall be taxable for State purposes; and by its charter the city of St. Louis has authority to tax all property within the city, so taxable.

On a certificate of division between the judges of the Circuit Court for the District of California.

<p>Error to the Circuit Court for the District of Minnesota; the case was thus:</p> <p>In October, 1866, the Home Insurance Company insured, for the term of one year, against fire, a stock of groceries and other merchandise owned by C. & J. Weide, and which were contained in a storehouse occupied by them in the city of St. Paul. In February, 1867, the storehouse aud its contents were burnt, and this suit was brought to recover for the loss of the stock of goods. At the trial the main question in issue was the extent of the loss. As most of the books were destroyed, and the defendants had introduced evidence tending to show that those which were not burned were not to be depended on, and afforded no data from which the value of the goods on hand a,t the date of the fire could be ascertained, or the extent of loss determined, the case rested chiefly on the testimony of the plaintiffs. They swore that their sales during the year preceding the fire were about $12Q,000, and that the goods on hand at the time of the fire were worth, at their cost value, $65,000.</p> <p>The defendants insisted, on the basis of the sales, that the loss was greatly overstated, and, as one means of proving it, offered to show by witnesses in St. Paul, engaged in the same business with the plaintiffs, and whose annual sales were as large as theirs, that grocery merchants in that city for the previous six years had not carried, or had on hand at any one time, more than one-fifth of their annual aggregate sales, and that this was the case on the day when the fire occurred. In other words, they wished to show by the general course of trade in that branch of business in St. Paul, that the plaintiffs’ loss could not have exceeded $24,000, if their sales during the year amounted to only $120,000.</p> <p>The court refused to allow the evidence to go to the jury, and the correctness of this ruling was the only point in the case which it was necessary here to consider. In the course of the trial, however, the defendant asked a witness this question:</p> <p>“ Supposing that the plaintiffs’ sales were $120,000 for the year preceding the fire, as grocery merchants, what average, amount did they carry or have on hand during such year, according to the general course of business ?”</p> <p>And on objection made to it, some discussion took place below on the correctness of that question.</p>

Held: that the suit would lie, and that upon proof of the fabricated character of the papers the complainant was entitled to a decree against all the defendants who had purchased with notice of .the claim of the sisters, and had not obtained conveyances or releases from them. 4.

Held: First. That this law enured to the benefit of the three first mortgages, as well as tb that made and as to the judgment recovered after its enactment, and in the order of priority due to each. Secomf. That the sale under the judgment did not disturb the priority of the mortgages. Third.

P. Tesson & Co. (which was composed of E. P. & E. M. Tesson) sued Forsyth in assumpsit to recover from him a balance in account. Forsyth pleaded a special plea in bar. The plea averred a joint request made by the individuals who composed the firm of E. P. Tesson & Co. to him, soliciting him to become a surety of one of those individuals in an administration bond.

There had been several surrenders and reissues of this patent, the last of which was on the 22d July, 1865. The Eureka Company being engaged in the manufacture of clothes-wringing tnachines under other patents, one S. B. Rindge, its treasurer, professing to act as its agent, entered into two written indentures with the Bailey Company, through its general agent, for the privilege of using their patent.

Held: or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission [or authority], may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ*of error . . . in the same manner, and under the same regulations, and the writ shall have…

F. Wiley, former marshal of the Eastern District of the State just named, upon his official bond.

Held: as matter of legal construction, that the new patent is not for the same invention as that embraced and secured in the original patent. * 4, That the reissued letters patent are void and óf no effect because they were not granted for the same invention as that embodied in' the original letters patent, nor for any invention made by the patentees before the original letters patent were granted.

, commission merchants of St. Louis, had a standing agreement with Hamilton & Dunnica, of New Orleans, to ship produce to them, and to draw drafts on the shipments, which they were to accept and pay. In case the proceeds of any shipment left a balance due to Hamilton & Dunnica, they were to apply the surplus of any other shipment in payment of it.

Held: that this language of the Supreme Court did not annul the proviso to the decree, hut left it in full force; and that the decree accordingiy gave to parties holding under the original grantee or the confirmee the same benefits which it gave to them in the perfection of their title. 2.

Held: that whether such writ was issued by the State court in contempt of the Federal one or not was a question which could not be passed upon bj^ a Federal court in a suit by the original owner of the property to set aside as void a sale made under the proceedings in attachment, and that such proceedings could not he *582 deprived of their legal validity by the ineffectual attempt at confiscation supervening upon them.

Held: not to make the government owners for the voyage; but to leave the possession with the general owners under a contract for per diem compensation from the commencement of the voyage until the same was broken up, including also so many days in addition as would have been spent, if no disaster had occurred, in completing the return trip. 2.

the Territory of Montana. • The case was that of a creditor’s bill filed by Kleinsmith, one appellee, against E. M. Dunphy, the appellant, and one Benajah Morse, surviving partner of Elkanah Morse, on behalf of himself and all other judgment creditors, to obtain satisfaction of a judgment recovered by Kleinsmith on the 12th of March, 1868, for $16,957.

The Cherokee Tobacco Case, 78 U.S. (11 Wall.) 616 (1870), is a United States court case with implications relating to tribal sovereignty in the United States. Two Cherokee men, Elias C. Boudinot and Stand Watie, refused to pay taxes on tobacco manufactured in the Cherokee Nation, as required by the Internal Revenue Act 1868. They argued that they were exempt from paying taxes by the Cherokee Treaty of 1866. The Supreme Court decided against the men, stating that a law of Congress can supersede the provisions of a treaty. Boudinot and Watie, with the help of attorneys A. Pike, R. W. Johnson, and B.F. Butler, argued that they were exempt from paying the tax on tobacco.

' The Fourth National Bank of New York filed a bill in December, 1867, in the court below against the New Orleans and Carrollton Railroad Company, Beauregard, Hernandez, Binder, and Bonneval. The court dismissed the bill and this case was an appeal by the bank. The case was thus: The railroad company just mentioned was a corporation in Louisiana, which had made a railroad from New Orleans to Carrollton.

The heirs of John Lynde filed a petition in the court below, the object of the suit having been to obtain the recognition and confirmation, as against the United States, of a claim for 32,025 arpents of land in Louisiana, under The provisions of an act of Congress, entitled, “An act for the final adjustment of Private Land Claims in the States of Florida, Louisiana, and Missouri, and for other purposes.” Approved June 22, I860.* The petitioners claimed title under a grant by…

This was an action' by the United States against a principal and his sureties on a postmaster’s bond. At the trial, the defendants claimed, by way of set-off, under the 5th section of the act of March 3,1863,* certain credits which were proved to have been presented by the postmaster to the department and disallowed.

The Rock Island Bank filed a hill in chancery in the Circuit Court below against one Mann and his wife, setting forth in a full and minute way its history of certain irregular transactions by Mann, as agent and cashier of the bank, which he had been, at one time, though he had ceased to be so several years previous to the filing of the bill.

Held: on an application of this principle, that the act of July 20, 1868, *653 imposing taxes on distilled spirits and tobacco, did not repeal the proviso to the 25th section of the Internal Revenue Act of March 2, 18G7, ■which limits to twenty days the time for commencing proceedings to enforce forfeitures. 3. But the proviso has no application to any other forfeitures than such as are provided for in it.

Eastern District of Texas; in a suit brought by Burnley and Porter against Cook, Eller, Elam, and several others. The case was thus: Along the coast of Texas, small tide-water bayous, or inlets, extend from the Gulf of Mexico, and from larger bays or inlets like that of Matagorda, into the land. They frequently connect with each other, and with the gulf or bays, by other and similar channels.

The judgment which is above reported as having been affirmed, was so affirmed at the December Term, 18671 A mandate accordingly issued to the court below, reciting the judgment of this court, and directing that “ such execution and proceedings be had in said cause, as according to right and justice and the laws of the United States ought to be had, the said writ of error notwithstanding.” This mandate was presented to the Circuit Court for the Eastern District of Texas, and…

Kirby and Osborn filed a bill in the court below against Whiteley and others, to enjoin them from infringing their patent, originally issued to Byron Diusmore, February 10, 1852, assigned to them the complainants, Kirby and Osborn, July 2, 1859, and surrendered and reissued 28th January, 1862. The court granted the injunction, and the defendants appealed.