Volume 99 — United States Reports

Held: as to complainants’ said debts herein against defendants Marks, Pump, & Co., and that the complainants Louis Stix & Co. in their own right, and also for the use of Rinskoff Bros. & Co., do have and recover of and from, the defendant M. Wolf, and Elias Lówenstein and L. Helman his *4 sureties on tbe aforesaid replevin bond, the said sum of $16,200, the value of the property replevied, and interest thereon to this…

Held: that B. was entitled to the compensation of collector during the whole period. 2.

Held: That A.’sjmterest in the lot, before the lands were entered, could be the subject of a sale or mortgage. 2.

<p>1. The statute of Georgia of March 16, 1869, requiring actions for the enforcement of rights of individuals under acts of incorporation or by operation of law, which accrued prior to June 1, 1865, to be brought before Jan. 1, 1870, does not apply to claims against the estate of a deceased person, so as to exclude the time which a previous statute allowed to administrators to ascertain the condition of the estate, and to creditors to file their claims.</p> <p>2. A court of equity is the proper tribunal to ascertain the proportion of indebtedness chargeable to a stockholder of a bank on his personal liability. But as by the law of the State, as declared by its highest tribunal, an action of debt will lie Where the amount of the bank’s outstanding indebtedness and the number of shares held by the stockholder are known and can be stated, the extent of his liability in such cases being fixed, and the amount with which lie should be charged being a mere matter of computation, a similar action at law will be sustained in such cases in the Circuit Court of the United States.</p> <p>3. Where an error in the amount recovered is apparent upon the record, and it could, not have been remedied by an amendment of the pleadings, this court will of its own motion, in the interests of justice, direct that it be corrected, and, if necessary, order a new trial or further.proceedings for that purpose.</p>

Held: that the United States having sustained no loss by the failure of A., he is entitled to the reserved ten per cent, but not to the profits that he would have made had he performed the contract, nor to' the difference between the contract price and that at which the work was completed by others. Appeal from the Court of Claims. The facts are sufficiently stated in the

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

Held: That these ■ provisions should be so construed as to effect their primary object, which was to furnish aid in and during the construction of the road, and that it cannot be controlled or defeated by the secondary and subordinate purpose of opening to settlement and pre-emption such of the lands as should not be sold or disposed of witbin the designated period. 2.

Held: that such decision does not present a Eederal question. Motion to dismiss a writ of error to the Court of Appeals of the State of New York.

Held: that the purchaser of the road is thereafter required to pay, on account of the sinking-fund for which that act provides, one-half of one per cent semi-annually upon the remaining bonds, and not upon the entire amount originally issued by the company. 2.

This suit was brought under the provisions of the statute.of New York, in the Supreme Court of that State, by Hobart Cooper, as administrator of his wife, to recover damages for her death, caused by a collision in the port of New York, between a schooner, which was in tow of the tug “ J. N. Parker,” and a canal-boat loaded with coal, whereof he was master, having on board his wife and children, and which with other boats was in tow of the steam-tug “ U. S. Grant.” The…

Held: that the causes relied on for the nullity of the judgment being, under the Code of Louisiana, vices of form, the proceeding by petition was substantially a continuation of the original suit; and that the Circuit Court could not take cognizance thereof. 2.

This action is upon certain bonds issued by the city of Ottawa, 111., in the year 1869, and of which the testator of plaintiffs in error became the holder and owner, for value, before maturity.

Held: that the bank, on whom was the burden of proof, having failed by its own statement (infra p. 98), or otherwise, to make good its allegation, the assessment does not invade its rights under the Constitution or the laws of the United States. Error to the Supreme .Court of the State of Louisiana. The facts are stated in the

On the sixteenth day of' May, 1871, the hotel known as the Glen House, at the foot of the White Mountains in New Hampshire, together with its furniture, was bid off at an auction sale by Grafton at the price of $90,000. At the end of the ten days allowed by the terms of the sale for examination of the title, three deeds were tendered him which were supposed to convey the title.

Held: That the town was estopped from denying the date of the bonds. 2.

Held: that C. had no specific lien on the property, and there being no trust which a court of equity can enforce, the bill cannot be sustained. Appeal from tbe Circuit Court of the United States for the District of Louisiana.

Wilkerson v. Utah, 99 U.S. 130 (1879), is a United States Supreme Court case in which the Court affirmed the judgment of the Supreme Court of the Territory of Utah in stating that execution by firing squad, as prescribed by the Utah territorial statute, was not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

This was an action brought in the Fourth District Court of the Parish of New Orleans by Thomas J. Semmes, against Ed■ward W. Burbank, for the recovery of one-half of lot No. 15, fronting on Edward Street, in the city of New Orleans, in the Square bounded by Annunciation, Benjamin, St. Thomas, and' Edward Streets. Semmes prayed that he be adjudged the lawful owner of the lot, and entitled to the possession thereof.

Held: that the bank could not claim an. equitable mortgage by such deposit. . Appeal from the Circuit Court of the United States for the Eastern District- of Missouri. The facts are stated in the

Held: That the Supreme Court having, after reversing the judgment of the lower court, still retained jurisdiction of the cause for the purpose of a rehearing, the right of the defendant to a new trial had not been perfected when the petition ¿for removal was filed. 2.

John Klein, having recovered a judgment for $89,000 against the city of New Orleans in the Circuit Court of the United States for the.

Held: that his remedy was not so confined, and that the city was bound to impose, in satisfaction of .the judgment, a tax upon all the taxable property within her limits. *153 Error to the Circuit Court of the United States for the District of Kf sas. A statute of Kansas, approved March 2, 1871, confers upon cities of the second class authority to enact ordinances for certain defined purposes.

This is ejectment, commenced Jan. 10,1870, by Edward H. Harris, Isaac H. Shimer and Letitia his wife, against John McGovern and others. A jury having been waived by written stipulation, the court tried the issue, and found the following facts : — 1.

Held: That the order of seizure and sale did not merge the debt, but that it was a judicial demand, continuing in operation until rendered effective by a valid sale of the property, and that the plea of prescription could not, therefore, be sustained. 2. That the pendency of a suit in a State court does not abate a suit upon the same cause of action in a court of the United States. 3.

<p>1. An error committed in overruling an objection to a juror as legally disqualified is cured, where it appears affirmatively that he was not a member of the panel which tried the case, and it does not appear that by his exclusion therefrom the party’s right of challenge was abridged.</p> <p>2. A person offered as a juror is not compelled to disclose under oath his guilt of a crime which would work his disqualification. If he declines to answer, the objecting party must prove such disqualification by other evidence..</p> <p>8. In ejectment, or trespass quarp clausum f'egit, actual possession of the land by the plaintiff, or his receipt of rent therefor, prior to his eviction, is prima facie evidence of title, on which he can recover against a mere trespasser.</p>

<p>Ebbob to the Circuit Court of the United States for the Northern District of Florida.</p> <p>The facts are stated in the opinion of the court.</p>

Held: that such appointment did not change the general laws of the State then in force for the settlement of the estates of deceased persons, nor ■ remove from office those who were at the time charged by law with public duties in that behalf. Error to the Supreme Court of the State of Alabama.

Held: That the receiver is the only necessary party defendant. 2. That' the transaction between the companies is not a license, but simply a contract for transportation creating no lien, the specific performance whereof would be a form of satisfaction or payment, which the receiver cannot be required to make. Appeal from tbe Circuit- Court of the United States for the Western District of North Carolina.

<p>In cases of concurrent jurisdiction, courts of equity consider themselves bound by the statutes of limitation which govern courts of law ; in many other cases they act upon the analogy of the limitations at law; but even where ¿here is no such statute governing the case, a defence founded upon the lapse of time and the staleness of the claim is available in equity where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights.</p>

Motion to dismiss for want of citation an appeal from the Supreme Court of the District of Columbia. This was a bill in chancery brought in the Supreme Court of the District of Columbia by John Vansant, and William A. Duncan, trustee for Susan A. Duncan, against the' ElectroMagnetic Gas-Light Company and others.

Held: That the requirement that they should be. made payable to the president and directors of the company, and their successors and assigns, is only directory; and that the recital therein estops the county from taking any advantage of the irregularity committed by its servants. 2. That no place of payment having been designated by the act, it was competent to make the bonds payable in New York. 3.

Held: that the obligors are liable to pay the taxes. Error to the .Circuit Court of the United States for the Northern District of Illinois.

This was a civil action, brought Oct. 24, 1874, to recover the penalty imposed for carrying on the business of a brewer without having paid the special tax therefor required by the act of Congress. The case was submitted on an agreed statement of facts. On May 1,1873, the defendant and his then partner paid their special tax .for carrying on that business.

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

Held: That the lien of the mortgage did not attach to the cars upon their delivery to the company so as to defeat A.’s reclamation of them as against the mortgagee. 2. That the payment out of the earnings of the road for rent of the cars for the time they were used by the receiver was proper. 3.

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

<p>The ruling in Fosdick v. Schall (supra, p. 235), that the funds in the hands of a receiver of a railroad appointed in a suit to foreclose a mortgage executed by the company must be applied to the satisfaction of the lien of the mortgage creditors and not to the payment of debts due to the general creditors of the company, reaffirmed and applied to this case.</p>

<p>1. An affidavit for the continuance of a cause does not become a part of the record, so that effect can be given to it during the trial, unless it is properly introduced as evidence for some legitimate purpose by one of the parties.</p> <p>2. In trespass guare clausum fregit, actual possession of the land by the plaintiff is sufficient evidence of title to authorize a recovery against a mere trespasser-</p> <p>3. The judgment of a court of competent jurisdiction is, as to every issue decided in the suit, conclusive upon the parties thereto, and in a subsequent suit between them parol evidence, whenever it becomes necessary in order to show what was tried in the first suit, is admissible.</p> <p>4. While the record of a mining district is the best evidence of the rules and cus-' toms governing its mining interests, it is not the best or the only evidence of the priority or extent of a party’s actual possession.</p> <p>6. The fifth section of the act entitled “ An Act to promote the development of the mining resources of the United States,” approved May 10,1872 (17 Stat.. 91), gives no greater effect to the record of mining claims than is given to the records kept pursuant to the' registration laws of the respective States, and does not exclude as prima facie 'evidence 'of title proof of actual possession, and of its extent.</p>

This was an action, brought by Walter Pugh against the United States, to recover the proceeds of certain property. The Court of Claims found the following facts : — 1. ’ In December, 1862, the claimant was in possession as owner of a plantation in Louisiana. The sugar and molasses described in the petition were a part of the products of such plantation, and were stored thereon, and in the possession of the claimant’s agents. 2.

Held: in effect, that any tax operating as a charge on such vessels, even if indirectly imposed, would be a tonnage duty, although levied under the name of pilot duties or penalties, and “ that it is the thing, and not the name, which is to be considered.” To the same effect is Steamship Company v. Portwardens, 6 Wall. 31 .

Held: that A. was not entitled to recover. Appeal from the Court of Claims. Tbe facts are stated in the opinion of tbe court. Mr. J. W. Douglass for the appellants. The Solicitor-General, contra.

Held: That the contract is not in violation of said treaty or said act. 2. That the certificates may be located lawfully -not only on unoccupied lands, but upon such as are occupied, provided that the occupants thereof waive the provision for their benefit, and consent to such location. 3.

Held: that the claim passed to the assignee. 2. The statutory requirement, that all suits by or against an assignee in bankruptcy shall be brought within two years from the time the cause of action accrued, relates to suits by or against him with respect to parties other than the bankrupt. 3.

Held: That the latter statute impaired the obligation of the contract of exemption found in the statute of 1855. 2. That whether the statute of 1855 is a valid contract, or is void by reason of its conflicting with the State Constitution of 1848, under which it was made, is a question on which the judgment of that court can be reviewed here.

Held: That E. having acted in pursuance of the original offer of A., the condition in her deed as to a written acceptance within ninety days did not apply to him. 2. That the condition being only in the nature of a penalty against the creditors, not assenting in the prescribed way, could be, and in Tact was, waived by A. 3.

Held: That such an agreement inures equally to the benefit of such bondholders, and that each holds his interest subject- to the controlling, power given to the majority of them. 2.

Held: That ns the act of 1856, granting the charter, did not expressly exempt it from the provisions of the act of 1841, they .are applicable to it. 2. That the charter must be read as if it declared that the capital stock of the company and its real estate should be exempt from taxation for thirty-six years, unless the legislature should in the mean time withdraw the exemption. -3.

Held: That a court of chancery had jurisdiction to entertain the bill, and power to decree the relief asked so far as the fees had been collected. 2. That the partners having by the agreement of August 13 provided for the division of the foes in case of the death of either of them, the survivors were entitled to no allowance for winding up the business, other than their share of the fees as specified in said agreement. 2.

Held: that the decree bound the parties who were personally served with process or who appeared, and did not affect the other holders of the securities, who had only constructive notice of the suit. 4. In an action of debt, the jury were sworn to try “the issue.” Two issues were joined, and the jury found “the issue” for the plaintiff, and assessed his damages. Judgment was rendered therefor.

Held: that the decrees were void, and that the owner of the cotton was entitled to recover the net proceeds of the sale of it. Appeal from the Court of Claims. The facts are stated in the

<p>Whenever a statute grants a new right, or a new remedy for the violation of an old right, or whenever such rights and remedies are dependent on State statutes or on acts of Congress, the jurisdiction, as between the law side and the equity side of the Federal courts, must be determined by the essential character of the ease. Unless it comes within some of the recognized heads of equitable jurisdiction, the remedy of the party is at law.</p>

Held: that -the patent conveyed a perfect title to the company. ■ 2. Neiohall v. Sanger ( 92 U. S. 761 ) cited and distinguished from this case. Appeal from the Circuit Court of the United States for the District of California.

Held: where from such earnings payment was made to parties who had, before his appointment, furnished the company with car-springs, and spirals and supplies for its machinery department, which he continued to use in carrying on the business of the road. Appeal from the Circuit Court of the United States for the District of Iowa.

Held: that the wines so purchased by A. were subject to the lien of the tax, and also, in case of its non-payment, to the interest penalty and charges provided by law. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. The facts are stated in the

Held: that the bill could not be sustained. Appeal from tbe Circuit Court of the United States far the District of Kansas. The facts are stated in the

Held: That the liability of the Union Pacific Railroad Company to make this payment accrued when it reported, and the President of the United States accepted, its road as completed, for the purpose of issuing the bonds, though the acceptance was provisional, and security was required that all deficiencies in construction should be supplied. 2.

Held: That, in the absence of the required indorsement, tlie uncertainty of the amount payable is a defect which deprives the bonds of the character of negotiability. 2. That the purchaser was affected with notice of their invalidity, and does not sustain the position of a bona fide holder without notice. Appeal from the Circuit Court of thef United States for tbe District of Louisiana.

<p>ERROh to the Supreme' Court of the State of Tennessee.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1. This ease, in all material respects, involves the same questions as Union Pacific Railroad Company v. United States (supra, p. 402), and the court adheres to the conclusion there announced as to the time when the road must he considered as completed, so as to render the company thereafter liable to pay annually five per cent of the it earnings of the road for the purposes mentioned in the sixth section of the act of July 1, 1862. 12 Stat. 489.</p> <p>2. The rulings in that case upon the question of the earnings and expenditures of the'road, and upon the principles by which the amount of net earnings is to be ascertained and in what manner paid, reaffirmed.</p>

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

<p>The Denver Pacific Railway and Telegraph Company is not liable for the debt incurred by the Kansas Pacific' Railway Company on account of subsidy bonds; and although it is bound to perform the government service stipulated by the Pacific Railroad acts at the rates therein prescribed, and is subject to their provisions, so far as they are applicable to it, no part of the compensation due it for such service can be retained by the United States.</p>

Held: That said act of 1872 granted an immediate beneficial easement in a particular way over which the routes designated in the charter of the Denver Company lay, capable, however, of enjoyment only when such way should actually and in good faith be appropriated for the purposes contemplated by that charter, and then the title thereto would take effect by relation as of the date of the act. 2.

Held: that the judgment in the proceedings on the monition is conclusive proof of the validity of the sale, and, as res adjudicata, is a complete bar to the suit. Error to the Circuit Court of the United States for the District of Louisiana. The facts are stated in the

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

Held: that the suit was barred by the Statute of Limitations. Appeal from tbe Court of Claims. The facts are stated in the

This is a bill filed by McKinley and others in the Chancery Court of Shelby County, Tennessee, and for the purposes of the case it was conceded that they were the owners of two lots, of ground near' Memphis, in that county, prior to the tax sale thereof, June 22 and June-25, 1864, under the act of Congress for the collection of direct taxes in insurrectionary districts within the United States and for other purposes, and the acts amending the same.

Held: that it is not a defence to tbe action that at the time of voting and that of issuing the bonds their entire amount was in excess of the proportion which by law they should bear to the taxable property of the township, or .that' after the vote at said election had been cast in favor of subscribing for stock in B., a railroad company, the subscription was made for stock in A., and said bonds issued in payment…

MOTION to dismiss an appeal from the Circuit Court of the United States for the District of Kentucky. The facts are stated in the opinion of the court."

United States v. Germaine, 99 U.S. 508 (1879), was a decision of the United States Supreme Court concerning who qualifies as an “Officer of the United States” for purposes of the Appointments Clause and a federal criminal statute prohibiting extortion by federal "officers". The Court held that a civil surgeon appointed by the Commissioner of Pensions to examine pensioners was not an “officer of the United States,” and the Commissioner of Pensions was not the “head of a department” within the meaning of the clause.

Held: that by executing a lease to the defendant for a few months, after having procured an adjudication of his title, he had elected to keep the improvements, and must pay the defendant their cost. The case of Wilson v. Benjamin et al. (26 id. 587) was decided at the same term with D'Armand v. Pullin (1861), and *528 the judgment was affirmed on a rehearing in 1874.

Held: that the matter in dispute being sufficient, A. was entitled to a removal of the suit. Error, to the Court of Appeals of tbe State of New York. This was a suit commenced Feb. 16, 1868, in the Supreme Court of New York, by Francis Vose against the Florida Railroad Company, David L. Yulee, Edward N. Dickerson, Marshall O. Roberts, and Isaac K. Roberts.

<p>1. A suit between citizens of the same State cannot be sustained in the Circuit Court as arising under the patent laws of the United States, where the defendant admits the validity and his use of the plaintiff’s letters-patent, and a subsisting contract is shown governing the-rights of the parties in the use of the invention.</p> <p>2. Belief in such a suit is founded on the contract, and not on those laws.</p>

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

Held: that the court could acquire jurisdiction in the mode prescribed by the thirteenth section of, that act. 2. The objection that the defendants to an amended bill were all necessary parties to a supplemental bill filed in the same cause, cannot be made for the first time in this court. S. A., seised of lands situate in South Carolina, died in 1856.

This is an action of trespass on the case by the East Pennsylvania Railroad Company against William B. Elliott, collector of internal revenue for the first district of Pennsylvania. The jury returned a special verdict as follows : — 1.

Held: that the omission of the court to construe the written evidence, if erroneous, affords him no just cause of complaint. 5. Where the plaintiff’s knowledge of the fraud and his neglect to promptly rescind the contract are relied on to defeat the action, the burden of proving the fact of such knowledge and the time when it was acquired rests upon the defendant.

Held: that, in the absence of further legislation, a mandamus will not lie to compel the levy of taxes beyond the amount so authorized. 2. A holder of such bonds who has recovered judgment for the amount thereof does not thereby obtain an increased right to a levy of taxes. Error to tbe Circuit Court of the United States for the Western District of Missouri.

This was a bill in equity by Matthias Terhune against John Phillips and Wellington Phillips, praying for an injunction restraining them from using or vending, or in any manner putting into practical operation or use, the corner sockets for show-cases for an improvement in which reissued letters-patent No. 5748 had been granted to the complainant by the United States, Jan. 27, 1874.

<p>Error to the Supreme Court of the Territory of Idaho.</p> <p>Motion to reinstate cause dismissed under Rule 16.</p>

The first two of these cases were actions of debt instituted in the Circuit Court to recover the penalties imposed by sects. 3296 and 3452 of the Revised Statutes. The remaining cases were instituted in the District Court by way of information under sects. 3281, 3299, 3453, and 3456.

<p>1. Under amended Rule 6 the plaintiff in error, or the appellant, may, with a motion to dismiss the writ of error or the appeal, unite a motion to affirm the judgment or the decree; hut where there is no color of right to a dis missal, the case being clearly within the jurisdiction of this court, a motion to affirm merely will not he sustained.</p> <p>2. The court declares that it will by the assessment of damages suppress the evil of resorting to its jurisdiction upon frivolous grounds.</p>

<p>Motion to amend a writ of error to the Circuit Court of the United States for the Eastern District of Missouri.</p>

Held: That the proceeding was thus made to conform to the requirements of the Practice Act of Utah, and that the latter court was called upon to decide whether the evidence was sufficient to sustain the findings of fact, and, if it was, whether they would support the judgment. 2.

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

Held: That the writ was properly directed to it in its corporate name. 2. That service of a copy of the writ upon the clerk is service upon the cor- . poration, and the members of the board who fail to perform the required act are subject to be punished for contempt. Error to the Circuit Court óf the United States for the District of Kansas. The facts are stated in the

Held: that a loan of money by a national bank on such security is not prohibited by law; and, if it were, the defendant could not set up its own illegal act to escape the responsibility resulting therefrom. 8. The order of the Comptroller of the Currency prescribing to what extent the individual liability of the stockholders of an insolvent national bank shall be enforced, is conclusive.

This is an action of trespass on the case by the Northern Transportation Company of Ohio against Chicago, 111., to recover damages sustained by reason of the construction by that city of a tunnel under the Chicago River along the line of La Salle Street.

Held: that a motion to dismiss the action, nonsuit the plaintiff, and to direct the jury to return a verdict for the defendant, was properly denied. 2. Tile court called attention to the testimony of the experts, and instructed the jury that it was for them to determine its weight. Held, that the instruction was proper. 3.

for the Northern District of Illinois. 'This was an action of trespass on the case brought by Jessie Gunn against the village of Evanston, 111., to recover damages which she had sustained April 22,1873, by reason of the alleged neglect of duty on the part of the defendant.

Held: that C. was thereby authorized to contract for the sale of the real estate, but not to convey it. 2. A deed executed to a purchaser, though invalid as a conveyance, may be good as a contract for the sale of the property described therein. Appeal from the Circuit Court of the United States for the Western'District of Texas.

Perris v. Hexamer, 99 U.S. 674 (1879), was a United States Supreme Court case in which the Court held a map-maker has no more an exclusive right to use the form of the characters they employ to express their ideas on a map than they have to use the typeface they use for text. Suitably, one could not use copyright to restrict the use of map symbols.

Held: that the judgment, until reversed by a higher court, is conclusive. *677 4.

Ekkoe to the Circuit Court of the United States for the Northern District of New York.

Held: that the judgment was a bar to the suit. 2 The court again decides that a bona fide purchaser of municipal bonds for a valuable consideration, who had no actual notice of any defence which could be set-up against them, is not bound to look further than to see that there was legislative authority for their issue, and that the officers who were thereunto authorized have decided that the precedent conditions upon which…

Held: That, to the extent of the powers, rights, privileges, and immunities thereby grante'd, Congress retains the right of amendment, and by exercising it may, in a manner not inconsistent with the original charter granted by California, as modified by the act of that State passed in 1864, accepting what had been done by Congress, regulate the administration of the affairs of the company in reference to the debts created…