Volume 84 — United States Reports

The case was thus: On the 4th of March, 1859,33. 0-. Shields, by instrument of writing, “bargained and sold to G. M. Hood” (bothparties, being of Texas) a tract of land in that State, described, “ for the sum of $27,000, lo be pgM by the said Hood as follows.” Certain drafts and notes to be given by Hood were then specified; among the notes one for $9000, payable at the Union Baiik, New Orleans, April 9th, 1862.

The rent for the first two years was fixed at $6000 per month, and it was agreed that at the expiration of every two years thereafter the secretary should have the privilege of having the -rent-fixed for the ensuing two years by a commission, of which the secretary should appoint' one member, Eldredge another, and that the two thus selected should choose a third.

Held: however, in the. case of Walker v. Dreville, ‡ that .no writ of error lies, where the proceeding below, in its essential nature, is-a foreclosure of a mortgage in chancery. If this case had been brought here by writ of error, as the case of Levy v. Fitzpatrick was, it must have been dismissed. The only proper mode of bringing it here was by appeal.

<p>A judgment affirmed because the plaintiff in error had filed no assignment of errors or brief, as required by the rules of court.</p>

Kennedy, receiver of the Merchants’ National Bank, brought suit in'the court below against the National Bank of the Metropolis, .to recover the balance alleged to be due on a check for $50,000, dated May 1st, 1866, drawn by one Robinson on the said Bank of the Metropolis, in favor of the said Merchants’ Bank, and duly presented for payment.

Held: that clearly she was not lawful prize of war or subject of capture; and that her owners were entitled to fair indemnify, though it might be well doubted whether the case was not more properly a subject for diplomatic adjustment than for determination by the courts. Appeal from the District Court, for the Southern District of New York.

On the trial he made title under a patent from the United States to one Leonard for the lot in question, dated 20th February, 1868. The defendants claimed title under a sale of. the lot for tkxes in 1848 under the laws of Illinois, in cousequence of the non-payment of the taxes laid in 1839. But as public lauds cannot be taxed, it was necessary for the defendants to show that the government title was extinguished prior to 1839.

Held: and decided not to allow the property to be sold for less than the amount of the debt due on the bond of Hovey, and appointed and instructed Sloan to bid accordingly. He did so bid, and the sale was made to -him, as before stated. A deed was not executed until the 12th of June, 1868. It was operative by relation from the time of the sale. But the deed is an immaterial fact.

Sub application of II. C. Warmouth, for a prohibition to the circuit judge for the district of Louisiana.

Held: that such execution was his voluntary act; and that the original contract for the 100,000 muskets was thus changed and modified.

Appeal .from the Court of Claims; the case being thus: One Sweeny, owner of a steamer, chartered her. at Louisville, March 3d, 1863, to the United States (the assistant quartermaster of the military department where she was, signing the charter-party in behalf, of the government), at $175 per day; no term of service being specified. On the 10th the per diem was increased, in writing, to $200, and was so paid till the 20th March.

Harwood, March, and several other persons, representing that they were stockholders in the Cincinnati and Chicago Railroad, “ a corporation now disorganized and unable to sue,” filed, on the 25th of December, 1865, a bill in the court below against the Air-Line Railroad Company, one Brandt, and several additional persons, to vacate a decree rendered iu the same court in the early part of the year 1860, in a suit by George Carlisle as trustee of a second mortgage on the road…

Error.to the Circuit Court for the Northern District of New York.

Held: and receive, in exchan'ge therefor, new bonds and preferred stock in accordance with the provisions of the plan for extricating the company from its present difficulties and for improving their securities; that the respondents thereupon appointed a committee with power to carry it into effect; that the committee prepared an indenture to accomplish that end; that they subsequently, by order of the directors,…

The German Savings and Loan Society, at San Francisco, California, brought a suit in the court below against Oulton, collector of internal revenue, to recover back a tax of 3Ltk of 1 per cent, per month, for moneys deposited in the savings bank during the month of August, 1870.

Held: that A.’s letter of 22d February was to he taken as if he had said: “ In the interval, before the arrival of any new age^t to represent you, I will perform the same services for the new voyages not covered by the contract of May 1th, 1849, that I have rendered in the voyages covered by the contract, and that your new agent would perform were he here;” and, accordingly, that for all services performed by him in…

[Though the two cases here reported were decided in order of time prior to that of the Huiwsiead/iJ&mpany y»- Valley Railroad next in order of place (beginning on page 153),-arid are referred to in it, yet the reader who is not already acquainted with the facts of what is known in Iowa as the Des Moines River land litigation may, possibly, find it as well to read, before reading the cases now immediately given, the later one, beginning, as already said, on- page 153, and in…

” The second section of this act provided that the lands so granted should not be sold or conveyed by the Territory, nor by any State to be formed out of it, except as the improvements progressed; that is, that sales might be made so as to produce the sum of $30,000, and then cease until the governor of the Territory, or State, as the case might be, should certify to the President of the United States the fact that one-half of this sum had been expended on said improvements,…

On certificate of division of opinion of the judges of the Circuit Court for the Southern District of Ohio; the case being thus: The 16th section of the act of August 6th, 1846,* enacts: “ That all officers and other persons charged . . . with the safekeeping, transfer, and disbursement of the public moneys . . . are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if any one of said officers ... shall convert to his…

., approved July 20th, 1868,* enacts: “ That every assessor shall proceed at the expense of the United States, with the aid of some competent and skilful person to be designated by the Commissioner of Internal Revenue, to make survey of each distillery registered for the production of spirits in his district, to estimate and determine its true producing capacity, &c., a written report of which shall be made in triplicate, signed by the assessor and the person aiding in…

Held: under special circumstances, by the judgment of the court to have taken effect when it was signed by-the President and sealed with the seal of the United States, officially attested. 2. Publication in the newspapers held, in the same way, not requisite to make it operative.

A statute of the United States, passed March 3d, 1797,* enacts that, “When any revenue officer or other persons hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent . . . the debt due to the United States shall be first satisfied, and the priority hereby established shall be deemed to extend to cases in which a debtor not having sufficient property to pay all his debts, shall make a voluntary assignment thereof. . . as to cases in…

Prior to the year 1817 the Cherokee Indians all resided on the east of the Mississippi; largely in Georgia. By treaties of the.year named, and of 1819,* the tribe was divided into two bodies, one of which remained where they were, east of the Mississippi, and the other settled themselves upon United States land in the country on the Arkansas and White Rivers.

The constitution of Missouri ordains: “ That the right of trial by jury shall remain inviolate.” The code of the same State enacts: “There shall be in this State but one form of action for the enforcement or protection of private rights, and the redress or the prevention of private wrongs, which shall he denominated a civil action.* “Suits- may be instituted in courts of record by filing in the office of the clerk of the proper court, a petition setting forth the plaintiff’s…

That there shall be levied, collected, and paid annually upon the gains, profits, and.income of everj person residing in the United States, ór of any citizen of the United States residing, abroad, whether derived from any kind of property,, rents,, interest, dividends, or salaries, or from any profession, trade,, employment', or vocation, carried on in the United States or1 elsewhere, or from, any other source whatever, a tax of 5 per centum on the amount so derived over…

of the former ease that thé judgment in it was given by a court nearly equally divided, and that the majority of the court who agreed in the judgment did not agree in the grounds of it.

Eleanor Berry, by a former husband) on these trusts “ and no other;” that is to say, “ to retain the legal title to all the said property during the life and widowhood of the said Eleanor; and after her death or marriage, until such time as the eldest of the children shall come of age or be married, ou which event or events the said Robert shall convey the unconditional title in fee to all the property, both real and personal, unto the said children and their heirs, or such…

And the statute of frauds of Missouri enacts,† that “ every sale by a vendor of goods and chattels in his possession, or under his control, unless accompanied by delivery within a reasonable time (regard being had to the situation of the property), and be followed by an actual and continued change of possession, shall be held to be fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith.” These enactments, State and Federal, being in…

On motion to dismiss an appeal from the Circuit Court for the District of Louisiana; the case being this: A steamer having been sold under a proceeding in rem in the admiralty, left in the registry of the court $4337.51, claimed on the one hand by Rodd and several other persons, creditors of the owners, who by one mortgage on the vessel had undertaken to secure all these creditors in a body, and on the other baud claimed by Iieartt and others, mariners, furnishers' of…

Held: arguendo: That a common carrier does not drop his character as such merely by entering into a contract for limiting his responsibility. ' 7. That carefulness and fidelity are essential duties of his employment which cannot be, abdicated. 8. That these duties are as essential to the public security in his servants as in himself. 9.

Alfred Iiuidekoper and Frederick W. Iiuidekoper, his nephew, both of Mead-ville, near that region, owning of long date, partially in .their own rights but more largely in a fiduciary capacity, as executors and trustees, about 1300 acres of such lands in the immediate district,, were called- on by one Stitt, who bad in part formed and was still cultivating relations with persons in New York and other cities operating in oil lands; and an agreement was made between him and the…

On certificate of division between the judges of the Circuit Court for the District'of Vermont; the case being thusc: Before the act of July 18th, 1866,* was passed it was necessary, in all cases of seizure of property for violation of the revenue laws, to institute proceedings in court for its condemnation.

A joint resolution of Congress, approved July 26th, 1866,* resolves: “ That in eveiy ease, in which a commissioned officer actually entered on duty as such commissioned officer, but, by reason of being killed in battle, capture by the enemy, or other cause beyond his control, and without fault or neglect of his own, was not mustered within a period of not less than thirty days, the pay department shall allow to such officer full pay and emoluments of his rank from the date…

Gardner sued Need in the court below. His declaration alleged that one Wilson had delivered to the defendant cotton, upon an agreement that .he, the defendant, would sell the same, and out of the proceeds pay to him, Gardner, tlje plaintiff, $4000, in which sum the said Wilson was indebted to Gardner; that, the property was.sold, that the net proceeds were $9000', by means whereof the defendant became liable to pay to the plaintiff the $4000, and- that he refused to pay the…

The notes were both dated April 12th, 1861, and were made payable at the Bank of Mobile, one on the 1st day of March, 1862, and the other on the 1st day of November, in the same year. Both the maker and the indorser were then, and continued to be, citizens of the State of Alabama; and the holder of the notes was, and continued to be, a citizen of the State of New York.

Mrs. Huntington, widow by a former marriage of Nathan Webb, and administratrix of his estate, brought this, a suit in chancery, against W. H. Moore and W. C. Mitchell, as surviving partners of a firm of which her husband, whose sole heir by the laws of Texas she alleged herself to be, was a member at the time-of his death. The object of the bill was to obtain a settlement of the partnership transactions, and she alleged tha.t a large sum was due her on such settlement.

Held: that when the State afterwards intended to terminate this obligation (as it could do upon reasonable notice as to after-issued bills), it was bound to do it openly, and in language not to be misunderstood. As a doubtful or obscure declaration would not be a proper one for the purpose, so it was not to be imputed.

<p>Judicial proceedings during the war of the rebellion, within lines of the Federal army, by a private person on a mortgage, ending in a judgment and sale of the mortgaged premises, against one who had been expelled by the military authority of the United States into the^so-called Confederacy, and who had no power or right to return to his home during the rebellion, held null, and a judgment which refused to vacate them reversed. Sean v. Nelson (10 Wallace, 172) affirmed.</p>

Held: that the decision of the Court of Claims was final under the special act, and that no appeal would lie from it to this court. .Petition and motion for mandamus: the ease being thus : By the treaty of Guadalupe Hidalgo, made on the 2d of February, 1848, between the United States and Mexico, the United States exonerated Mexico from all demands of their citizens, which had previously arisen, and had not been decided…

Held: sufficient service, in the absence of proof, that J. S. was-not one.of the directors at the time of service; and *446 the defendant having appeared and moved, for want of sufficient service, the'opening of a judgment which had been obtained for default; which motion as atked for, the court refused, but granted on condition that the defendant appeared ; which he did, and proceeded to trial. 2.

Adams v. Burke, 84 U.S. (17 Wall.) 453 (1873), was a United States Supreme Court case in which the Court first elaborated on the exhaustion doctrine. According to that doctrine, a so-called authorized sale of a patented product (one made by the patentee or a person authorized by it to sell the product) liberates the product from the patent monopoly. The product becomes the complete property of the purchaser and "passes without the monopoly." The property owner is then free to use or dispose of it as it may choose, free of any control by the patentee. Adams is a widely cited, leading case. A substantially identical doctrine applies in copyright law and is known as the "first sale doctrine". As the Supreme Court recently explained, in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct.

Nock brought an action in the court below against Philp and others to recover damages for the infringement of a patent granted to him by the United States for an improve^ ment touching the lids of inkstands and the hinge whereby such lids ar.e attached.

William Carlton et al., ás assignees of Christian Reichmann, filed their bill in equity in the court below to restrain Howard Bokee from infringing a patent for an improvement-in lamps, granted to Reiehmann on the 21st of'September, 1858, and reissued to Carlton and one Merrill on the 11th of August, 1868. The court bélow dismissed the bill, and the .complainant ■ took' this appeal. The case-can -be gathered from the facts stated in the opinion of the court.

On certificate of division in opinion between the judges of the Circuit Court for the District of Minnesota; the case being thus: The Bankrupt Act of 1867* provides in the earlier part of it, that if any persons residing within the jurisdiction of the United States, shall apply by petition to the judge of the judicial district in which he has resided, &c., settipg forth “his inability to pay all his debts in full, his willingness to sui'render all his ‘estate and effects,…

case as found by that court having been thus: In July, 1863, Major Hunt, of the corps of engineers, entered into negotiations with one Carpenter, owner of an island in Narragausett Bay, for the purchase of it. by the United States for military uses; and a parol contract for the purchase and sale was then formally concluded; the terms being approved by the Secretary of War. The price, as stipulated, was $21,000.

Held: that the date meant the time expressed on the face of the bill, and that it did not depend upon the fact that the bill actually had more than two months to run. Denman, C. J., says: “If a bill bears no date, we must ascertain by evidence the day when it issued, but where there is a date, that must be considered as the time to which the schedule refers.” In Whistler v. Forster, ‡ the same language is used by Erie,.

The case was thus: Patrick McCue was a common laboring man, living in Prairie du Chien, Wisconsin, and employed in the railroad warehouse in that place. On the evening of the 11th of July, 1868'-the steamer War Eagle, owned by the Northwestern Packet Company,'.arrived at the landing in Prairie du Chien for the purpose of taking freight from the ware-. house.

• Appeal from the Court of Claims, in which court one Goodwin, who had chartered a schooner to the United States, at a fixed per diem, sought to recover the per diem during one hundred and forty-four days in which, under the circumstances hereinafter mentioned, the vessel had been detained by the marshal of the United States on a libel filed against her. The Court of Claims dismissed his petition, and Goodwin took this appeal.

Held: That Schiffer was the real and beneficial claimant in this suit, although Cutner was the nominal one. % T-hat the pretended transfer of the cotton by Cutner to Schiffer, on 6th March, 1865, was in violation of the non-intercourse acts of Congress aud the President’s proclamations made subsequent thereto, and therefore inoperative to clothe the real claimant, Schiffer, with a valid title to the cotton, or to vest in…

This was a suit in equity to reach property belonging to the estate of a deceased debtor, and have it applied to the demand of creditors, aud particularly funds distributed by the executor of the estate of the deceased t-o legatees.

C., in 18(39, having a judgment against one Perry Fuller, who had been a. large dealer with the Indians on the Western frontier, having more than one trading-place there, levied on certain goods at St. Louis, in Missouri, which they alleged to be his.

In actions against two or more persons, jointly indebted upon any joint obligation, contract, or liability, if the process issued against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process. “2.

Held: that the company was liable in damages for the injuries, and that the rule that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury, — whether a true rule or not, — had no application to the case.

Held: in the caso of a railroad running through several States, including that whore the State enactment above mentioned had been made, that the State enactment was but a police law, and therefore constitutional.

In March, 1858, one John Horn, of Marengo County, Alabama, died, leaving a considerable estate, including a homestead plantation of 720 acres, a smaller- tract of 208 acres, with other pieces of land, seventy-eight negro slaves, and other personalty; and leaving also a widow and six children, among them a son,-John A. C. Horn, and daughters; one married to William-Lockhart, another married to Charles Lockhart, and a third married to one McPhail.

Great Britain has a similar regulation, fixing what are to be regarded as British vessels. By an act of March 1st, 1817,† it is enacted, “Section 1.

Held: that an exclusion of the deposition on the ground of want of sufficient notice was error. 2. "Where the purpose of testimony is to impeach a witness for want of veracity, it is not improper to ask the person on the stand what is the geheral “ reputation ” for truth of the witness sought to be impeached.

Beall brought a suit in chancery in the court below, in his character of assignee iu bankruptcy of one Jarrell, against a certain Harrell and one Echols, to set aside what he charged to be a fraudulent sale to Echols of the bankrupt’s property, and to have the property subjected to the payment of debts in the bankruptcy proceeding.

The Amoskeag Manufacturing Company brought suit in the Court of Claims against the United States on a contract, by which the company had agreed to make and deliver, and the United States had agreed to receive and pay for, all the Lindner carbines, not exceeding six thousand, which the company could make in six months from the 15th day of April, 1863, to be approved and inspected by Major Hagner, and by which for each carbine so inspected and delivered the United States was…

Held: in the absence of contrary provision, to begin when the cause of action is first subjected to its operation.

.heir travelling clerk from the said city of New Orleans into certain parishes in the interior of the State, to collect moneys due to the firm there, and gave him authority to purchase sugar and cotton for the firm. “ In March or- April, 1862, they requested one Avegno, who was then going from New Orleans to the said parishes, to remit to their said clerk the sum of $5000, and to assist the said clerk in the business of buying sugar and cotton.

Held: the court cannot compel the defendant to perform it after his power to perform has ceased. And if a successor in office may be substituted, he may be mulcted in costs for the fault of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary.

About the 1st of April, 1865, and prior, therefore, to the passage of the Bankrupt Act of 1867, the directors of the ■Lumberman’s Insurance Company of Chicago — a company then recently incorporated and authorized to begin business on a capital of $100,000, of which not less than one-tenth should be paid in, the residue to be secured — invited subscriptions to the capital stock of the company; stating, in most instances, to those whom they invited to subscribe, that only 15…

be in the occupancy thereof, or by leaving the same with some white person of the family, of the age of ten years or upwards, at the dwelling-house of such defendant, if he be absent.”* This Statute and this provision of it being in force, one Kibbe brought ejectment in the court below at January Term, 1867, against a certain Pleasant Benson, to recover possession of a tract of land in Illinois, containing eighty acres, upon, which there was a dwelling-house in which Benson…

David Shoemaker brought ejectmeut, iu December, 1868, against Caroline Smith, Mary Smith, et al.,- for certain real estate in Georgetown, D. C. The property in question had .been conveyed, A.T). 1810, by persons owning it, to one Beal, in trust for a certain Kilty Smith during life, and on -liis death for his son John Chandler Smith. After the date of this deed, Kilty Smith had another son, to wit, Hamilton Smith, the father of the defendants.

James Whartenby brought ejectment in the court below against William Daniel and others for certain premises in the State of Delaware. •' ■' Under the instructions given to the jury a verdict was rendered in favor of the plaintiff" and judgment was entered accordingly. The defendants, having excepted to the instructions, sued out this writ of error and brought the case here for. review.

Walker brought au.action of ejectment against Marks and others, the Board of State Harbor Commissioners, for certain real property situated within the limits of the city of San Francisco, State of California.

Held: that in.view of the almost invariable practice as to the stowage of nuts on. this voyage, of the well-known fact that if stowed in the hold-they are extremely liable to be injured by sweat, and of the marks and directions on the packages in question in this case, it was culpable negligence *652 in the master of the vessel to stow them in the hold, and that the vessel was liable accordingly.

In 1869 'Miller filed a bill in chancery iu the same Circuit Court to restrain the collection of the judgment and for a new trial, making Joseph and-the sheriff of that county parties. They appeared and answered. . The Circuit Court, af the hearing, which was had on the pleadings, dismissed the bill. The plaintiff then applied to the Supreme Court of Appeals of the State to allow an appeal from the decree of the Circuit Court, but .that court refused to allow it.

Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657 (1873), was a case decided by the Supreme Court of the United States that first enunciated the idea that a landowner could be liable for the injuries of a child trespasser.

Held: that this subsequent agreement did not affect the implied hypothecation of the vessel for the whole, the advances by both libellants having been made on the credit of the vessel and not solely on the personal credit of the captain or owners. 3.

The husband died twenty-four days afterwards; that is to say on the'1st of March; 1867, and before the policy actually issued.