Volume 95 — United States Reports

Motion by tbe appellant for a rule upon tbe appellee to show cause why a receiver should not be appointed pending the ap- ■ peal in this court. In this cause, a decree of foreclosure and sale was entered in' the Circuit Court July 6,1876, by consent of the present appellant corporation. Pursuant to this decree, the property was sold to James Baker, who, as is alleged, was at the time the’ solicitor of the company.

Appeals from the Circuit Court of the United States for the Southern District of New York. The facts are stated in the opinion of the court.

In 1849, the New Albany and Salem Railroad Company was incorporated under the laws of Indiana,-with power to construct a railroad from New Albany, on the Ohio River, to Michigan City, on Lake Michigan. To enable the company to raise the necessary means to complete and equip the road, it issued at different times a large amount of bonds, secured by mortgages upon its property.

Held: that a party claiming under a deed executed and recorded in 1818, which he alleges .was intended to embrace the same land, but which mis- ’ describes it, which misdescription was not asserted in any judicial proceed! ing, nor notice.thereof given before action commenced by the holders, of said notes to enforce their trust, is not entitled to have his deed reformed against their intervening right?.

<p>1. The act of Congress, approved June 3,1864 (13 Stat. 99), was not intended to curtail the power of the States on the subject of taxation, or to prohibit the exemption of particular kinds of property, but to protect the corporations formed under ij:s authority from unfriendly discrimination by the States in the’ exercise of their taxing power.</p> <p>2. People v. The Commissioners, 4 Wall. 244, and Hepburn v. The School Directors, 23 id. 480, cited and approved.</p> <p>3. The Supreme Court of Tennessee having decided that the act of' the legis. laturé of that State, requiring that all personal property of every kinfl and nature sh,all be listed and assessed .for taxation, overrides and repeals the previous ordinance of the city of Nashville exempting from municipal taxa-' tion certain city bonds, and brings them within the scope of general taxation, that decision is binding upon this court.</p>

Held: in view of the circumstances which must be supposed to have appeared to the parties at the time of making the contract, that the meaning of the clause is that the ' risk was to be suspended while the vessel was at Baker’s Island for the purpose of .loading, whether actually engaged, in the process of loading or not. 2.

<p>Error to the Circuit Court _o£ the United States for the District of California.</p> <p>The facts are stated in the opinion of the court.</p>

The petition in the case alleges that the defendant, on the 19th of April, 1873, broke into the store of the plaintiff,- and carried away certain merchandise, and prays for an injunction. Upon the plaintiff giving the required bond and security, an injunction restraining the defendant from further trespass, and from advertising and selling the property which he had already seized, was granted.

<p>1. The liability of an intermediate common carrier for the safety of goods delivered to him for carriage is discharged by their delivery to and acceptance by a succeeding carrier or his authorized agent.</p> <p>2. If there is an agreement between two persons, occupying the relative positions of intermediate and succeeding carrier, that property intended for transportation by the latter may be deposited at a particular place without express notice to' him, such deposit amounts to notice, and .is a delivery.</p> <p>3. The acceptance by the succeeding carrier is complete and his liability fixed whenever the property thu's'^ with his assent, comes intp. his possession.</p>

.This action, was trover by Edwin A.' C. Hatch'against Thomas B. Coddington fop the conversion of forty-five. Minnesota State’ bonds. Each party claimed them under the ’Minnesota and Pacific Railroad Company, to whom they had, on the 3d óf February, 4859, been issued by the.

Held: that if an assignee in bankruptcy submitted himself to tbe jurisdiction of a State court in a suit affecting tbe estate which was pending when tbe proceedings in bankruptcy were commeácéd, be was bound by any judgment that might be rendered.

Held: That the powér of attorney authorized B. to accept payment of the voucher, which upon "its face declared'it was the last and full .payment for the extra work, and that his acceptance bound A., and barred a recovery for such work. 2, That the United States is not' liable to A. for the increased cost of ' the labor and materials. Appeal from tbe Court of Claims.

Petition for a writ of prohibition to restrain the District Court of the United States for the Eastern District of New York from exercising jurisdiction in a proceeding in rem to enforce an alleged lien for wharfage against the canal-boat or barge “ John M. Welch.” • As the facts in the case are fully stated in the opinion of the court, they are omitted here.

Held: that the proper internal revenue officer Of the United States rightfully assessed against the company a tax of five per bent upon the amount so paid. Error to the Circuit Court of the United States for the Northern District of Ohio. The facts are stated in the

Epjroe to tbe Supreme Court of the State of Iowa. The act of the legislature of Iówa creating the city of Keokuk a municipal corporation gave to the city council power to establish and regulate wharves, and to fix the rates of landing and wharfage of all boats, rafts, and .water-craft moored at or' landing at the wharves.

Held: that the charge was not erroneous. 2. The proviso to the third section of the act of Congress, approved July 2, 1864 ( 13 Stat. 351 ), that In the courts of the United States no witness shall be excluded in any civil action because he is a party to, or interested in, the issue tried, has no application to the courts of a Territory-. 8'.

<p>Appeal from the Circuit Court of . the United States for the Southern District of Illinois.</p> <p>The facts are stated in the opinion of the court.</p>

Held: or' used by said company, for ' the purposes of its charter, or any of the supplements thereto; except the tax of one-half of one per cent on the cost of. its road, which, by the said charter • and. the supplement thereto approved on the twenty-third day of March, 1865, was •required to be paid by said company in lieu of all other taxes, any act to the contrary notwithstanding.

Held: that the order was within the discretion of the court, and that by it such special finding became a part of the record of the cause, and that the judgment upon it is, without a bill of exceptions, subject to review here. 8 A policy of insurance for one year, issued Sept. 2, 1864, upon certain goods then in a store at the city of Glasgow, Mo., contained the following stipulation : “Provided always, and it is hereby…

This is an action by-Joseph Movius, surviving partner of the firm of F. Wigand & Co., to recover $172.39 being the amount of certain import duties alleged to have been unlawfully demanded and collected from' them by the defendant in error, as. the collector of the port of New York.

Held: and so advised the Secretary, that, if the money had only gone into the hands of some officer of the government, and the right of third parties had not attached, it might be refunded. 8 Op. Att.-Gen., p. 281.

<p>Appeal from the Circuit Court of the United States for the District of Iowa.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1. Travellers upon a common highway which crosses a railroad upon the same level, and the railroad company running a train, have mutual and reciprocal duties and obligations; and, although the train has the right of way, the same degree of care and diligence in avoiding a collision is required from each of them.</p> <p>2. That right does not, therefore, impose upon such a traveller the whole duty of avoiding a collision, but is accompanied with and conditioned upon the duty of the train to give due and timely warning of its approach.</p> <p>3. The degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty.</p> <p>4. It belongs to the judge to exercise discretion as to the style and form in which he expounds the law and comments upon the facts. His duty is discharged if his instructions to the jury correctly state, although not in the ipsissima verba of counsel, the whole law applicable to the case.</p>

The Cairo and Fulton Railroad Company having been sued in the Circuit Court of Clay County, Arkansas, service was bad on the tenth day of September, 1873, by leaving a copy of the summons with a clerk of the company. Judgment was rendered by default. A motion was sub so quently made to set the default aside, on the ground that there had been neither legal service upon nor appearance by the company.

<p>1. A bill of exceptions, allowed and signed or sealed by the judge, is the only mode by'which his. rulings during the progress of a trial, or his charge to the jury, can be rendered a part of the record.</p> <p>2. The provisions of the Code of Georgia are in harmony with this rule.</p>

<p>Error totbe Supreme Court of tbe State of North Caroliua.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>.The fapts are stated in- the opinion of the court.</p>

Court of Appeals of the State of New York/ • On the 1st óf \June, 1867, Pechner sued the Phoenix Insurance Company, a Connecticut corporation, in the Supreme Court of’ Chemung County, in the State of New York, upon a policy of. insurance.

<p>Error to tbe Superior Court of tbe city of New York.</p> <p>The facts are stated'in thej opinion of tbe court.</p>

The record in this case shows that several issues of fact regularly'made up were tried by a jury in the third judicial district court of the Territory of Utah, that a verdict was returned in-favor of the defendants in error for $8,588, and a judgment rendered thereon, Nov. 11, 1874 j but it does not show that any exceptions were taken to the rulings of the court, eithér admití;' ting or rejecting evidence, or to instructions given or to those refused, nor does it contain'any…

Held: that, having so remained in such warehouse, they were, under the act of March 14, 1866 ( 14 Stat. 8 ), subject to the additional duty of ten ner cent thereby imposed. Eeeoe to the Circuit .Court of the United States for the Southern District of New York.

Held: that he had waived his right to the conveyance, or, at least, had subordinated it to the interest'of the trustee and the purchasers under him. 3. The delay of a party in taking proceedings to enforce sucli a contract for a' period which would bar an action at law for the property is, except under special circumstances, such laches as disentitle him to the aid of a court of equity.

<p>1. In the absence of any different provision by treaty or by act of Congress; all the country described by the first section of the act of June 30, 1834 (4 Stat. ’ 729), as Indian country, remains such only as long as the Indians retain their title to the soil.</p> <p>2. Whatever may be the rule iil time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians, for wrongs committed in time of peace under orders emanating, from a source which is itself without authority in the premises. Hence a military officer, seizing liquors supposed to be in Indian country when they are not, is liable to an action as a trespasser.</p> <p>3. The difference between the valué of the goods so seized, at the place where they were taken and the place where they were returned to the owners, is the-proper measure Of damages.</p>

<p>1..' Carlisle v. United States, 16 Wall. 147, cited and approved.</p> <p>2. A foreigner, domiciled during the year 1864 in Texas, who, in order to obtain permission of the rebel government to export his cotton/ sold at a nominal price, and delivered to its agents or officers for its use, an equal amount of other cotton, which he subsequently.redeemed by paying a stipulated sum therefor, directly contributed to the support of the enemy, and gave him aid and comfort. Out of such a transaction,-no demand against such agents or officers can arise which will be enforced in the courts of the United States.</p> <p>8. The coercion or duress which will render a payment involuntary must consist of some actual or threatened exercise of power possessed, or believed to be possessed, by. the party exacting or receiving the payment, over the person or property of another, from'which the latter has no other means of imme- . diate relief than by making payment.</p>

<p>1. Letters-patent No. 56,801, issued July 31, 1866, to William Roemer, for an improvement in travelling-bags, cannot be sustained, as the thing patented was, before his alleged invention, known and extensively used by others in this country.</p> <p>2. Where, after setting up the defence of prior, knowledge arid use of the thing patented, and giving the names and residences of witnesses intended to be called to prove the defence, the answer to a bill for the infringement of let- , ters-patent alleges that the names and residences of certain other witnesses are unknown to the defendant, and prays leave to insert and set forth in the answer such names and residences when they shall be discovered, it is competent for the -court to allow, upon such discovery, the amendment to be made nunc pro tunc.</p>

Petition for a writ of mandamus to the Circuit Court of the United States for'the Middle District of Alabama. The facts important to the determination of this case are as follows: — The Montgomery and Enfaula Railroad Company, in 1860, borrowed $30,000 from the Staté of Alabama, and executed a mortgage upon its property and franchises to secure the payment.

Held: that the loss thereby sustained by the express company was not covered by the policy. Error to the Circuit Court of the United States for the Southern District of New York. The facts are stated in the

Held: that the words “just claim of the assured” have reference to her claim or title to the policy, and not to the justness of her cause of action thereon. 2. A fact, disclosed by the proofs, of the death of the insured furnished to. the company, which might be set up as a defence to a suit on the policy, does not derogate-from their sufficiency, nor bar'the bringing of such suit. 3.

Held: in a case where it appeared that the property had been sold under judgment and execution against the insured, that the non-disclosure of the sale and purchase avoided the policy, though the period allowed for redemption had not expired. Reaper City Insurance Co. v. Brennan, 58 Ill. 158 .

The case presented by this record is in substance as follows: On the ,17th of November, 1870, Abram A. Moore conveyed certain lands in Clinton County, Ohio, to John Milner, Jr. This conveyance, it is claimed, was made to hinder and delay creditors, and is therefore, as to them, void.

Held: That, until such payment,the confirmee has no title to the eleven square leagues selected pursuant to tiie act, nor'a perfect equitable right to such title, and they are not subject to taxation. 2. That Congress, after the surveys and plats shall' have been perfected, may enforce such payment by a sale of the lands, a resumption of tiie grant, or other appropriate mode.

Motion to dismiss an appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Zug & Co., a partnership firm composed of Christopher Zug and Charles H. Zug, were adjudicated bankrupts by the District Court of the United States for the Western District of Pennsylvania, March 18, 1876.

of the United States for the Eastern District of Missouri. This was a bill in equity filed by Clinton O. Dutcher and wife against the Brooklyn Insurance Company of New York, claiming that Mrs. Dutcher, under her contract with the company, and by-reason of,her payment of. certain annual premiums, was entitled to a paid-up policy of insurance upon the life of her husband for $4,000, and praying for a specific perfor'maáce.

<p>Appeal from the Circuit Court of tbe United States-foie the Eastern District of Pennsylvania.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1.‘The court, in construing .the contract between the parties -to this suit, holds that the company is not bound to deliver the stipulated new bonds until all the construction bonds which are still outstanding shall be surrendered to it, or due proof made of the loss of such as cannot be produced, 'and adequate security offered to indemnify the company against liability to any. adverse claimant. . , '</p> <p>2. The parties, in interest will then be entitled to a performance of the contract by the Company, notwithstanding a decree'by consent and in-part performance of the contract has been rendered by the District Court of the first judicial district óf the State of Kansas, sitting within and for the county of Leavenworth, directing a cancellation of the construction bonds and a discharge of the mortgage securing them.</p> <p>8. The court calls attention to the irrelevant matter and useless repetitions with , which the record in this case is incumbered; and, while reversing the decree below, adjudges that the parties pay their respective costs in this court, and. refers to rule 52 in admiralty as containing suggestions which may serve as an appropriate guide in making up the record in a case at law or in equity.'</p>

Held: That the appeal from the decree was not taken in time. 2. That no appeal lies from the order refusing a new trial. Motion by the United States to dismiss an appeal from the District Court of the United States for the District of . California. The facts are stated in the

<p>1. It is not an absolute rule that collateral papers, made by a party, which are adduced in evidence against him to supply the want of his signature to a written agreement, required by the Statute of Frauds to be “ subscribed by the party chargeable therewith,” should, on .their face, and without the aid of parol proof, sufficiently demonstrate their reference to such agreement.</p> <p>2. If the interest and cause of action of the promisees under an agreement be several, each may maintain an action against the promisor.</p>

Motion by the defendant to dismiss the writ of error to the Supreme Court of Pennsylvania, and by the plaintiff to amend the writ, by making the city of Philadelphia a party thereto. The facts are stated in the opinion of .the court.

This was an action on the case by Hope, the plaintiff below, to recover damages for the loss of the canal barge or vessel “ Mary E. Loughney,” her cargo, and for freight thereon.

Held: That the devise is not invalid for uncertainty, or because it creates a perpetuity.- 2. That the provision touching a conveyance by the trustees whenever Congress should create a corporation for foundlings which they approved was only a conditional limitation, of the estate vested in them. 3.

This suit was brought by the United States, May 29, 1872, against Hosmer, Hart, and Stahl, oh a distiller’s bond, executed by them May 29, 1871, in the sum of §5,000, and conditioned to be void if said Hosmer should faithfully comply with all the provisions of law relating to the duties and business of distillers, and pay all penalties incurred or fines imposed on. him for 'a violation of any of said provisions, and should not suffer the tract or lot of land on which the…

<p>1. The consolidation, pursuant to the statute of Ohio of April 10, 1866 (4 Cur-wen, 2791), of two or more railway companies works their dissolution. All the powers and franchises of the nevv company which is thereby formed are derived from that statute, and are subject to “be altered, revoked, or repealed by the General Assembly,” under sect. 2, art. 1, of the Constitution of that State, which took effect Sept. 1, 1851.</p> <p>2. The General Assembly does not, therefore, impair the obligation of a contract by prescribing the rates for the transportation of passengers by the ne.w company, although one of the original companies was, prior to the adoption of that Constitution, organized under á charter which imposed no limitation as to such rates.</p>

Eb'bob to the Circuit Court of tbe United States for tbe District of Iowa. ■ This is an action of debt upon a bond given by Lysander W. Babbitt and tbe other defendants to tbe United States, on tbe ninth day of May, 1853, to recover tbe sum of $10,000 alleged to have been charged and received by him, during bis term of office, as fees for tbe location of military bounty-land warrant under the provisions of tbe acts of Congress approved the 11th of February, 1847, the 28th of…

(sylvania. • On the 22d of January, 1874, the Commissioner of Internal Revenue, ■ acting under the authority of sect. 2 of “ An Act for the reduction of officers and expenses of the internal revenue,” approved Dec. 24, 1872, 17 Stat. 402, Rev. Stat. 3182, assessed a tax of $1,350 on Bergdoll & Psotta, the plaintiffs, for “ one thousand three hundred and fifty barrels of beer sold and removed, &c., without proper stamps, to Oct. 1,1873.” This assessment having been duly…

<p>1. The court, upon consideration of the facts in this case, holds 'that it appears that an insolvent.debtor transferred certain securities to his creditor with a view to give him-a fraudulent preference, and that the latter received and appropriated them, having reasonable cause to believe that the debtor was insolvent.</p> <p>2. The creditor is, therefore, liable to the assignee in bankruptcy of the debtor-for . the securities or for their value.</p> <p>8. Toof v. Martin, 13 Wall. 40, Buchanan v. Smith, 16 id. ¿77, and Wager v. Hall, ' id, 584, cited and approved.</p>

Held: That it was incumbent upon C. to show that B. took up the notes to secure the payment of which the mortgage to the latter had been executed. 2'. That, in the absence of such proof, the amount received by C. was clearly a preference by way of indemnity. 3. That the action was not barred by the satisfaction of the judgment against D. 4.

Motion to set aside the decree rendered at the last term in Cochrane v. Deener, 94 U. S. 780, and to dismiss the appeal.

<p>Appeal from the Court of Claims.</p> <p>The facts are stated in the opinion of the court.</p>

Held: that, in order to confer the requisite authority under the act, it required “a majority of the legal voters, that is, of all the legal voters, of the city, and not merely of all those who might, at a particular-time, choose to vote upon the question.” This was the express language of the court; and as at that election more than thirteen thousand voters participated in voting for the officers to-be elected, it was…

The coupons sued on by Jordan are from bonds issued by Cass County on behalf of Mount Pleasant Tpwnship, which recite that'they are issued “pursuant to an order of the county court of said county, made by authority of an act of the General Assembly of the State of Missouri, entitled ‘ An Act to facilitate the construction of railroads in the State of Missouri,’ approved on the twenty-third day of March, 1868, and authorized by a vote of more than two-thirds of the voters of…

This was an action brought by Shores against.the county of Cass to recover the amount of .certain bonds and coupons, A copy of one of the bonds and of a coupon thereunto attached is as follows: — “ No. 38.] The State oe -Missouri. [$500.' “Cass .County Funding Bond.

Held: that the representations of the insured as to the condition of his health on the 1st of October, when he applied for the reinstatement of his policy, and paid the premium,‘were not continuous until the 14th of that month; and that the contract was consummated on the day when the pre mium was paid. 2 The ruling in Insurance Company v. Newton, 22 Wall. 32 , pouching the effect, as admissions for or against an…

<p>Appeal from the Supreme Court of the Territory of New Mexico.</p> <p>The facts are stated in the opinion of the court.</p>

Held: That, as the allegations of the bill touching the lands conform to the provision of the Code of California, and are sustained by the proofs, the decree below awarding partition was • proper. 2.' That, if there is any thing in the allegations which Concern the partnership; which introduces another matter, the objection should have been taken by .demurrer for multifariousness., ' Appeal from the Circuit Court of.…

This suit was brought June 11, 1867, in the court below, by Thomas H. Gillis, in his own name, to récover the proceeds of one hundred and eight bales of cotton seized under the Abandoned and Captured Property Act of .March 12, 1868, as the property $ of John H. Ryan, at Charleston, S. C., in March,. 1865, by the military forces of the United States. The Court of Claims found the following facts: — -1.

Held: also, that such an authentication would be sufficient in the State court; and, if so, that it would also be good in the Circuit Court.

Held: that, waiving the consideration of any question in regare! to the validity of an insurance upon the life of an alien enemy, such tender of payment did not bind the company. 4. -The effect of a state of war upon the question of agency discussed. *426 Error to the Circuit Court of the United States for the Eastern'District of Virginia.

Held: That the facts so found were conclusive upon a bill of review alleging errors apparent on the face of the decree. 2. That it cannot be properly assumed that the paper signed D. Y. Browti was all the evidence from which the court concluded that the defendant acted under the warrant of the military authorities of the government. 3.

Held: That, as A. would not have been injured had he used ordinary care and caution,' he is not entitled to -recover against the company. 2. That the knowledge, assent, or direction of the agents of the company as to wliathe did at the time in question is immaterial.

. In February, 1856, James Williams leased by parol certain land in the city of Washington, the legal title to which stood in his name, to Thomas B. Florence, with the privilege by the .latter of purchasing it for $6,000. In the following month, Florence entered into possession as tenant of said James, and made certain improvements.

<p>Error to the. Circuit Court of the United States for the Western District of Wisconsin.</p> <p>The facts are stated in the opinion of the court.</p>

Held: State taxation of persons passing from one State to another, or a State tax upon inter-state transportation of passengers, is prohibited by the Constitution because a burden upon it,- a fortiori, if "possible, is a State tax upon the carriage of. merchandise from State to. State.

<p>1. Where, at the time of making and indorsing a promissory note, a written contract in relation thereto is entered into by the parties, paroj testimony varying or contradicting its terms is not admissible.</p> <p>2. The court reaffirms the doctrine that a bona fide purchaser for value before maturity of a negotiable instrument, is not, unless they are brought to his notice, affected by any equities between the original parties.</p> <p>3. A party who seeks to avail himself of the conditions óf a compromise binding him to the performance of certain acts, in order to discharge the original . demand, must first show performance on his part.</p> <p>4. The court condemns as irregular, proceedings whereby the defendant in two separate suits, in the former Of which judgment had been rendered before the latter had gone to trial, was permitted to file bills of exception purporting to be applicable to each case, and, without consolidating them, remove them to this court by one writ of error.</p>

Hall v. Decuir, 95 U.S. 485 (1878), was a decision of the Supreme Court of the United States. In Hall, Josephine Decuir, a wealthy woman designated a Creole, sued for racial discrimination she experienced on a steamboat. She was traveling from New Orleans to Pointe Coupee Parish, where she owned a sugar plantation. The Supreme Court held that the Louisiana statute authorizing a damages award to Decuir unconstitutionally interfered with interstate commerce. The majority opinion, by Morrison Waite, sought to avoid conflicting state laws with regard to interstate transit. Joseph W. Singer argues that Hall marked the beginning of a phase in Supreme Court jurisprudence that led to Plessy v. Ferguson.

Held: “ Commencing at the' south-east corner t)f tówn .28-N.,>R-.-lb, E., 4th principal meridian, running west'twenty-four miles, thence north eighteen miles, thence east twenty-four miles, fhéncé*south eighteen miles to the. place of- beginning, the same befog townships 28, 29, and 3.Q of. ranges IS, 14,15, and 16, according to public sur vey. ” Under an act of Congress approved Feb. 6, 1871, 16 Stat. 404 , entitled “ An…

This is an- information against the brig “ Grace Lothrop ” for a violation. of the act qf June 7-, 1872, 17 Staff (262), as amended by the act qi ^an. 15,1873, id. 410.

' Certificate of division in opinion between the judges of the Circuit Court of the United States for the District oi Massachusetts.

Held: that the implied contract being such as arises upon a simple bailment for hire, the claimant cannot recover for her loss. 4. The forms of pleading in the Court of Claims do not preclude a claimant from ■recovering what is justly due him upon the facts stated in his petition, although there be no count in the petition as upon an implied contract. 6.

Held: That’the interest- of T. & Co. in the whiskey, by reason of their lia-, bility to pay the government tax, was an insurable one. 2. That the policy • was intended to furnish indemnity against that liability,, as well as to insure the interest which, at the time of tlie loss, they had as owners of the whiskey'. 3. That the companies are liable to them for-the amount of tlie judgment so • rendered. .

This is an action of ejectment brought in the Brown County Circuit Court, Wisconsin, by Whitney and Baker, for the possession of a tract of land, consisting of ninety-four acres and a fraction of an acre, situated in the borough of Fort Howard, in that, county'and State. On the. trial, the plaintiffs deraigned title to the premises from one Pierre Grignon, to whom a patent ■ of the United States was issued June 2, 1870.

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>’Parmelee, cashier of the Shawnee County Bank, made his individual note for $3,000, payable to the order of the West St. Louis Savings Bank, indorsed it “G. F. Parmelee, cashier,” and gave as collateral security a certificate of stock in the Shawnee County Bank, issued to and owned by him. The consideration of the note was money lent to him by the payee, who was advised that he intended to .use it to pay, for his stock in .the Shawnee County Bank. He failed to pay the note; whereupon'this suit was commenced by the payee, against him as maker, and the Shawnee County Bank as indorser, of the note.</p> <p>The court passed a decree against Parmelee, but dismissed the bill so far as it asked relief against the Shawnee County Bank.</p> <p>The complainant then brought the case here.</p> <p>The remaining facts in the cáse are stated in the opinion of the court.</p>

Appeals from the Circuit Court of the United States for the Northern District of New York. This is a suit by Paul Dennis against Daniel Eddy, Walden ' Eddy, and Abram Reynolds, doing business as Eddy & Co., for an infringement oí reissued letters-patent No. 1515, granted' to the complainant Aug. 4,1863, being a reissue of original letters No. 19,412, which bear date Feb. 23, 1858.

April 18, 1874, the property in controversy in this suit, said to be owned by one Karstendiek, was seized, as forfeited to the United States, by the collector of internal revenue for the first collection district of Louisiana; and it was at once libelled by the United States' attorney for Louisiana, who, on the twenty-seventh day of March, 1875, filed an amended libel, setting out the causes of seizure and forfeiture in these words, viz.: — “ For that the said Karstendiek,…

This was a bill in equity by the Union Pacific Railroad Company against Thomas C. Durant, to compel his conveyance to the company of certain lots and lands; The case made by the complainant, in its bill, is substantially this: That in the month of November, 1863, the Union Pacific Railroad Company, having commenced surveys at or in the vicinity of Omaha, for the purpose of ascertaining the best' point for the location of the eastern terminus of its road, and the most…

Held: that the declaration was bad in not alleging.that the paid checks .on the bank remaining in its possession were not duly stamped at 'the time they were made, signed, and issued. FKROR to the Circuit Court of tbe United States for tbe District of Minnesota. Tbis is an action by tbe United States to recover from tbe defendant $500, as a forfeiture for an alleged violation of sect. 3177 of tbe Revised Statutes.

Held: that the appointment of a new trustee, and the decree for the payment to him of the principal of the fund, is necessary to carry into full effect an order for the removal of the' old trustee. Appeal from tbe Circuit Court of tbe United States for tbe Southern District of Alabama.

<p>Appeal from thh Supreme Court of the District Of Columbia.</p> <p>The bill in this caso was filed by John Emory Hilton and certain other heirs-at-law and next of kin of John P. Hilton, against JohnT. Given and Carberry S. Hilton, his executors and others,.to obtain judicial construction of his last will and testament. ' It prayed for an injunction restraining the executors from selling any portion of the real estate until they should first have applied the personal estate to the payment of debts and the legacies specified in the will, and, in the event of any deficiency, then to sell no greater portion of such real estate ' than would be sufficient to discharge such debts and legacies.</p> <p>The court decreed that the debts due by the .deceased were to be first paid, then the legacies, and both from the personal estate, if that be sufficient; but if not, then that the real estate be resorted to, but only to discharge any deficiency, and that the residue of said real estate be equally divided among the heirs.</p> <p>From this construction of the will the defendants appealed to this court.</p> <p>This will, which was 'duly attested and admitted to probate, is as follows : —</p> <p>“In the name of God, amen. I, John P. Hilton, of Washington City, in.the District of Columbia, . . . do . . . make and publish' this my last will and testament, in manner and form following, that is to say.: . . .</p> <p>“ After my debts and funeral' charges are paid, my worldly estate, .with which it hath pleased God to intrust me with, I devise and bequeath as follows : —</p> <p>“Item. As soon after my decease as possible, I direct that my debts and funeral expenses be paid out of any portion of my estate ■which may first come into the hands of my executors hereinafter named.</p> <p>“Item. Secondly, I direct that all of my estate, except such as is hereinafter otherwise devised and bequeathed; be sold by my executors at as early a day as .practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions as they are first herein named, written, and stated, as far as the amount realized from the' sale of my said estate will allow, viz.: —</p> <p>“ Item. I give and devise unto my kind and obedient son, Car-berry S. Hilton, and -my grandchildren, John Perry Hilton and Harry Slicer Hilton, sons of Carberry ,S. Hilton, all that part of lot eight (8) pf Davidson subdivision of square ttVo hundred and fifteen (215), fronting on 14th Street west, between L and M Streets north, with the improvements ; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton, in fee-simple, and the remaining half as he may choose, to him the said Carberry S. Hilton, in trust for the sole use and benefit of his said children, John Perry Hilton and Hany Sheer. Hilton, in fee-simple, tó be equally divided between them.</p> <p>[Here follows a number of pecuniary legacies.]</p> <p>“ Item. I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seised or possessed, which is not Herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description,-and not herein otherwise disposed of, for his sole use and benefit and that of his children.</p> <p>“ Item. I direct that the rents accumulating from my estate, until such time as my executors shall have disposed of the same, shall be distributed as follows: After deducting all expenses for repairs,-taxes, and insurance,' the same shall be equally divided among my four children ; namely, Carberry S. Hilton, Ann Terring Smith, John Emory Hilton, and Laura R. Mórsell.</p> <p>“And, lastly, I do hereby constitute"and appoint my dear son, Carberry S. Hilton, and my esteemed friend, John T. Given, of Washington City, District of Columbia, to be sole executors of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament, requesting that m'y son, Cai-berry S. Hilton, the fi.st-named executor of this my will, that he make no charge for any service he may render in the execution thereof.. ' -</p> <p>“ In testimony whereof, I have hereunto set my"hand- and-affixed my seal this nineteenth day of March, in the year of our Lord eighteen hundred and seventy-three.</p> <p>[seal.]; “Jno. P. Hilton.”</p>

Held: That the pilot-boat whs not anchored in an improper place."' 2. That the light displayed' by her-was á proper one. .8. That the momentary "absence" of the lookout .from her'deck did not contribute to the accident.-4. That the collision .was not thejresult of inevitable accident-, but was owing-entirely to the fault of the schooner. 2.

’. This' is an action for the recovery of .the amount due upon certain coupons annexed to bonds issued by the county of Henry, Missouri.

The Planters’ Bank of the; State of Georgia was incorporated by the, legislature of that State, with a charter, providing that the stockholders, for the time being, shall “ be .pledged and bound, in proportion to the amount .of the shares that each .'individual or'company may hold in said bank, for the. ultimate redemption of the bills or notes issued T>y or from said, bank, during the time he, she, or they may hold such stock, in the same manner as in ordinary commercial…

<p>Under sect. 827 of the Revised Statutes of the United States relating tothe District of Columbia, persons severally liable upon the same obligation or instru- . ment, including -the parties to promissory notes, may all or any of them, at the option of the plaintiff, be included in the same action.</p>

On -motion for a writ of certiorari. A judgment was rendered in' this case by the Court of. Claims, May 15,1874, from which the United States took an' appeal to this court. • On the 5th of May, 1876, while that, appeal. was pending, the United States moved the Court of Claims for a new trial, under the provisions of sect. -1088, Rev. Stat.

Held: That the guaranty embraced both the principal and interest of the bonds. 2. That the ordinance contemplated two undertakings’ by the company,— one, to the bondholder, to answer for the city’s liability; and the other, to the city, to provide for the payment of the principal of the bonds on their maturity. 2.

Held: I. That the pass was given for a consideration, and that he was a passenger for hire. 2.

<p>Appeal from the Court of Claims.</p> <p>This was an action by Wilcox to recover from the United States certain commissions which he claimed were due to him. as a collector of internal,revenue upon taxes collected by him for articles removed in bond from his district to another.</p> <p>The Court of Claims found the following facts: —</p> <p>1.- Under the provisions of the act of July 20, 1868, c. 186, sect. 73, 15 Stat. 157, the Commissioner of Internal Revenue designated and established at different ports of entry bonded warehouses for- the storage of manufactured tobacco and snuff in bond intended for exportation, under the control of the collector of internal revenue in charge of. exports at the port and in the district where located.</p> <p>2. The commissioner promulgated the following instructions and regulations applicable to the withdrawal of tobacco from said warehouses for consumption, so far as material in this.case: —</p> <p>“ The law makes no provision for the removal of tobacco in bond without payment of tax, except such tobacco and snuff -as are intended for export. ... ...</p> <p>“ Sect. 73 of the act of 1868, c. 186, provides . . . that said goods may be withdrawn from • warehouses either for immediate' export to a foreign country, or after the tax h-as been paid thereon. . . .</p> <p>“ The following rules and regulations are prescribed for the deposit in, and the withdrawal from, any export bonded warehouse of . . . manufactured tobáceo and snuff. . . .</p> <p>“ WITHDRAWAL AFTER PAYMENT OF TAX.</p> <p>“The party desiring to withdraw manufactured tobacco or snuff from an export bonded warehouse, after the. tax has been paid thereon, will file with the collector an entry for withdrawal in the following form, describing the goods as they were entered for warehousing, viz.: —</p> <p>“ENTRY EOR WITHDRAWAL.</p> <p>“Entry oi merchandise intended to be withdrawn from the export bonded warehouse of , at . , in the district of the State of , by , for consumption, on payment of the taxes, the same having been stored in said warehouse by , on .the day .of j 18 , and which-were described as follows, viz.: —'</p> <p>“ The taxes having been fully paid and thfe stamps affixed and cancelled,-.the collector will issue'.a permit for the delivery of the goods, which'permit must be 'presented to the assessor of the district for his certificate that the samé has been presented to him, and that'- the amount of taxes paid thereon has been entered in his bonded account of the district.”</p> <p>And. the collector was réquired to .certify that the full amount of tax due and owing thereon had been paid to him.</p> <p>3. The claimant was .collector of internal revenue for the Fifth Collection District pf Virginia from April, 1869, to March, 1871, as alleged in his petition.</p> <p>4. During the time the claimant' was collector as aforesaid there were removed from- manufactories in his district, without the payment of tax thereon, and transported directly to export warehouses in other districts, under the provisions of sect. •74 of, said act, 15 Stat. 157, and. the regulations of the commissioner, a large quantity of manufactured tobacco, to eaoh package of which was affixed, by said collector, an engraved stamp, as'required' by said section.</p> <p>",-5. Of.the tobacco so.removed from manufactories in the district of .the claimant, and shipped to export, bonded warehouses in other districts, there wasjvithdrawn by the owners from said warehouses, to be sold in districts other than that of the claimant, and not for .'export, in accordance with the regulations of •the' commissioner mentioned in' the second finding, a large quantity pf tobacco, arid the’ tax- thereon was paid to the collectors in the districts where' said warehouses were situated.</p> <p>• 6. Adding one-half the. amount of the tax received on the quantity of tobacco shipped from the claimant’s district, as set forth in the fourth finding, and withdrawn from the warehouses •in other districts to be sold, as stated in the fifth-finding, to the amount of taxes collected by the claimant on which his commissions were calculated, if. he was entitled to have, such addition made under the provisions of the act of June 80, 1864, c. 173, § 25, 13 Stat. 231, as amended by the act of July 13, 1866, c. 184, § 9, 14 id. 106, and the act of March 2, 1867, c. 169, § 9, id. 171, the claimant would be entitled to additional commissions amounting to the sum of $1,020, which has not been paid to him.</p> <p>As a conclusion of law, the court'found that the claimant was entitled to recover the sum of $1,020, and rendered judgment' accordingly.</p> <p>The United States then appealed here.'</p>

<p>1. A party who made a contract with an organization which had attempted irregularly to create itself into a corporation, and which acted as. such, or who subscribed to its Capital stock, cann'ot, in a suit by the corporation, defend himself against a claim growing out of .such contract or subscription by alleging the irregularity of such, organization.</p> <p>2. The same rulé applies where the stock of a corporation has been increased, and the question arises upon the liability of a subscriber for the increased stock.</p> <p>3. An assignee in bankruptcy of a corporation represents it^and its creditors, and the defence of its irregular organization cannot be set up against him ' by such subscriber.</p> <p>4; A party receiving, a certificate for a certain- number of shares of stock, at a . - given sum per share, thereby becomes liable to pay the amount thereof when called upon by the corporation or its assignee.</p> <p>5i Upton v: Tiibtfcock, 91 U: S. 45, Sanger v. Upton, id. 56,' and Webster v. Upton, id.’65, cited and approved.</p>

On a certificate of division in opinion between tbe judges of tbe Circuit Court of the United States for the Southern District of New York. In November, 1874, the defendant filed a petition, in bankruptcy in the District Court for the Southern District of New York.

<p>1. When a party states, in his application for an insurance, that he has made a just, full, and true exposition of all material facts and circumstances in regard to the condition, situation, value, and risk of the property, so far as known to him, and the application is .expressly made a part-of the policy,, should it afterwards appear that he overestimated the value of the property, the policy would not be vitiated, unless it be shown that .the estimate was intentionally excessive.</p> <p>2. When a policy contains contradictory provisions, or is so framed as to render it doubtful whether the parties intended that the exact truth of thé applicant’s statements should be a condition precedent to any binding contraót, that construction which imposes upon the assured the obligations of a warranty should not be favored.</p> <p>-3. The policy having been prepared by the insurers, it should b.e construed most , strongly against them.</p>

Held: That this provision is a contract between the State and the bank, limiting the amount of tax on each share of the stock. 2. That a subsequent revenue law' of the State, imposing an additional tax on the shares in the hands of stockholders, impairs the obligation of that contract, and is.'void. Error to tbe Supreme Court of the State of Tennessee.

Held: that the amount in controversy, whether payable in coin or any other kind of money, is not sufficient to give this court jurisdiction. Motion to dismiss a writ of error to the Circuit Court of the United States for the District of Massachusetts. The facts are stated in the

This was "an action against the Chicago, Rock Island, and Pacific Railroad Company, brought under a statute of Missouri, - which subjects a corporation to a .penalty of $5,000 where death is caused by an injury resulting from. “ the negligence,.unskilfulness, or criminal intent ” of any of its officer's, agents, servants, or einployés, .whilst ’ running, conducting, or managing a locomotive,' car, or train - óf cars.

The facts out of which this case arises, so far as it is material to state them, are substantially these: — >. William Fitzgerald, Jr., of the State of Virginia, by his will, which wa.s admitted to probate in 1857, directed his executor tos sell his entire landed estate, and distribute the proceeds among those entitled to them, according to the provisions of the will.

Held: that a certificate of an officer taking the acknowledgment of the grantor in a deed of trust, in which tbe officer certifies that said grantor is “ personally known ” to him, is a compliance with the statute. 2. To be “ personally acquainted with ” and tó “ know personally ” are, in such a certificate, equivalent phrases. 3.

Pennoyer v. Neff, 95 U.S. 714 (1878), was a decision by the Supreme Court of the United States in which the Court held that a state court can only exert personal jurisdiction over a party domiciled out-of-state if that party is served with process while physically present within the state. More importantly, the court imposed a procedural limit on quasi in rem jurisdiction over property located within the state; it would have to be "brought under the control of the court" at the time the suit commenced otherwise quasi in rem jurisdiction would remain unavailable. The case emerged from a fee dispute between Marcus Neff, a homesteader in the Territory of Oregon, and attorney John H. Mitchell.

<p>The deputy-clerk, crier, and messengers of the Supreme Court of the-District of Columbia are not entitled to the twenty per cent additional compensation granted by the joint resolution of Congress'approved Eeb. 28, 1867 (14 Stat. ■ ' 569).</p>

<p>Appeal from the Court of Claims.</p> <p>This was an action by McLean to recover $569.50 for compensation which he claimed to be due him as deputy-postmaster at Florence, Kansas, from April 14, 1871, to July 1, 1872.</p> <p>The Court of Claims found in his favor, and rendered judgment- for that amount. The United States appealed to this:, court.</p> <p>The facts are stated in the , opinion of the court.</p>

Mobile Life Insurance Company v. Brame, 95 U.S. 754 (1877), is a United States Supreme Court case in which the Court held that the remedies available under the Louisiana code for manslaughter were not available under the common law.

This was an action in the Court of Claims by Andrew M. Moore against the United States, to recover certain pay which he alleged was due him as an officer in the navy. - That court found the following facts: — 1. Qn the 12th of April, 1869, the claimant was appointed and Commissioned an ■ assistant-surgeon in the navy of -the United States. 2. On the 24th of .February, 1874, after examination, he was found qualified for .promotion to the grade of surgeon.

Held: in which the bankrupt had an interest, without reference either to the just possession of others, lawfully acquired, prior to the commencement of proceedings in bankruptcy, or to the liens, incumbrances, or equities which existed against the property at-the time of the adjudication in bankruptcy. We have seen that such a^ theory is unsupported by law.

Held: that a mandamus to levy and collect such special'tax for the years 1872 and 1878 would not lie. 8.

<p>Error to the Supreme Court of Appeals of tbe ■ State of Virginia.</p> <p>This was an action of covenant, brought in the Circuit Court of the city of Alexandria, Va., by Orlando Fairfax, against the city council of Alexandria, to recover the principal of certain bonds, amounting in the aggregate to $8,700, with -the arrearages of interest due- .thereon.</p> <p>The following is a copy of one of the bonds:</p> <p>“No. 35.] Alexandria Corporation Stock, $5,200.</p> <p>“There is due from the common council of-Alexandria unto Dr. Orlando Fairfax, $5,200, bearing interest at the rate of six per cent per annum from the first day of July, 1858, payable half-yearly, being stock issued in pursuance of an act of the common council of Alexandria, passed" on the twenty-third day of July, 1815, the principal of which is redeemable on the first day of January, in the year 1870, and is transferable only at the office of the auditor of the corporation, in person or by attorney.</p> <p>“Witness the seal of the common council of Alexandria.</p> <p>■. f 1. ) ( Alexandria (. Corporation.</p> <p>“ W. D. Massey, Mayor.</p> <p>“ J. H. McYeigh, '</p> <p>. “ President of Council.</p> <p>“ Sam. J. McCormick, Auditor.”</p> <p>The defence was that the stock whereof mention is made in the bonds or certificates, and all the right, title, and interest of Fairfax -therein, had, with the accrued interest thereon, been condemned to confiscation and sale, under an act of Congress, of July, 1862, by a decree of the District Court of the United States for the Eastern District of Virginia, May 4,186.4, and sold by the marshal, who transferred the stock to the purchasers on the books of the auditor of the city. The council recognized tills transfer as valid, and issued to the purchasers or their assigns certificates of - stock of like tenor and effect. They are still outstanding, and the interest thereon has been paid to the holders of them.</p> <p>Fairfáx was a resident of Alexandria, until the commencement of the rebellion. He then went to Richmond, V"a., where he has since resided, taking with him the said bonds or certificates of indebtedness, and he retained possession of them until he brought this suit.</p> <p>The present controversy turned on the jurisdiction of the District Court. Neither Fairfax nor the city council entered an appearance to the proceedings which resulted in the. decree. The order of seizure which the district attorney of the United States for the district within which the c.ity of Alexandria Í3 situate' directed to the marshal, with the return made by the latter thereon, is set out in the opinion of this court, and is, therefore, omitted here. The Circuit Court of the city of Alexandria rendered a judgment against Fairfax, which the. Supreme. Court of Appeals reversed, and rendered one in his favor. The city council thereupon sued out this writ of error.</p> <p>cited Miller v. United States, 11 Wall. 268; Tyler v. Befrees, id. 381; Cooper v. Reynolds, 10 id. 308; Brown v. Kennedy, 15 id. 591; Pelham v. Way, id. 196; Pelham v. Rose, 9 id. 108; GrignorCs Lessee v. Astor, 2 How. 319 ; Voorhees v. Bank of the United States, 10 Pet. 449; Kempe's Lessee v. Kennedy, 5 Cranch, 173 ; Williams v. Armroyd, 7 id. 423.</p>