Denv. & Rio Grande Ry. v. Harris, 122 U.S. 597 (1887)
Case details
Citation
122 U.S. 597
Full caption
DENVER AND RIO GRANDE RAILWAY v. HARRIS.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 27, 1887
Dissent
Nott (J.)
DENVER AND RIO GRANDE RAILWAY v. HARRIS.
ERROR TO THE SUPREME COURT OF THE TERRITORY OF NEW
MEXICO.
Argued May 5, 1887. — Decided May 27, 1887.
If a claimant of real estate, out of possession, resorts to force and violence amounting to a breach of the peace to obtain possession from another claimant who is in peaceable possession, and personal injury arises thereupon to the latter, the party using such force and violence is liable in damages for the injury without regard to the legal title, or to the right of possession.
Iron Mountain and Helena Railroad v. Johnson, 119 U. S. 608, affirmed and applied.
A corporation is liable civiliter for torts committed by its servants and agents done by its authority, whether express or implied.
In trespass on the case to recover for injuries caused by gunshot wounds inflicted by defendant’s servants, evidence of the loss of power to have offspring, resulting directly and proximately from the nature of the wound, may be received and considered by the jury, although the declaration does not specify such loss as one of the results of the wound.
In an action of trespass on the case against a corporation to recover damages for injuries inflicted by its servants in a forcible and violent seizure of a railroad, punitive damages, within the sum claimed in the declaration, may be awarded by the jury, if it appears to their satisfaction that the defendant’s officers and servants, in the illegal assault p. 598complained of, employed the force with bad intent, and in pursuance oi an unlawful purpose, wantonly disturbing the peace of the community and endangering life.
The Atchison, Topeka and Santa Fe Railway Company was in peaceable possession of a railroad from Alamosa to Pueblo, and while so in possession, the Denver and Rio Grande Railway Company, by an armed force of several hundred men, acting as its agents and employes, and under its vice-president and assistant general manager, attacked with deadly weapons the agents and employes of the Atchison, Topeka and Santa Fe Railway Company having charge of the railroad, and forcibly drove them from the same, and took forcible possession thereof. There was a demonstration of armed men all along the line of the railroad seized, and while this was being done, and the seizure was being made, the plaintiff, an employe of the Atchison, Topeka and Santa Fe Railway Company, while on the track of the road, in the line of his employment, was fired upon by men as he was passing, and seriously wounded and injured. Immediately upon the seizure of the railroad as aforesaid, the Denver and Rio Grande Company accepted it, and entered into possession and commenced and for a time continued to use and operate it as its own. The plaintiff brought this suit to recover damages for his injuries. Held, that the Denver aud Rio Grande Company was liable in tort for the acts of its agents, and that the plaintiff could recover damages for the injuries received, and punitive damages under the circumstances.
This action was brought by James Harris, the defendant in error, against the Denver and Rio Grande Railway Company, a corporation of the state of Colorado, to recover damages for injuries which, he alleges, were sustained by him, in his person, by reason of an illegal and wrongful assault made by that company, acting by its servants and agents. The plea was not guilty. There was a verdict and judgment in favor of the plaintiff for nine thousand dollars. The judgment was. affirmed in the Supreme Court of the territory, and has been brought here for review.
The defendant introduced no evidence, although its officers were the chief actors on the occasion when the plaintiff was injured. The case made by the latter and other witnesses testifying in his behalf, is stated by the Supreme Court of the territory, in the following extract from its opinion: —
“ The record discloses the fact that there was evidence on the trial in the lower court to the effect that about the tenth or twelfth of June, 1879, the Atchison, Topeka and Santa Fe p. 599Railway Company was in peaceable possession, by its agents and employes, of a certain railroad in the state of Colorado, running from Alamosa to the city of Pueblo, in that state; that at or about that date, and while the Atchison, Topeka and Santa Fe Railway Company was so in possession of said railroad, the plaintiff in error, the Denver and Rio Grande Railway Company, by an armed force of several hundred men, acting as its agents and employes, and under its vice-president and assistant general manager, attacked with deadly weapons the agents and employes of said Atchison, Topeka and Santa Fe Railway Company having charge of said railroad, and forcibly drove them from the same, and took forcible possession thereof; that there was a demonstration of armed men all along the line of the railroad seized, and while this was being done, and the seizure was being made, the defendant in error, who was an employe of the Atchison, Topeka and Santa Fe Railway Company, on said line of railroad, and while on the track of the road, and on a hand-car thereon, in the line of his employment, was fired upon by men as he was passing, and seriously wounded and injured; that immediately upon the seizure of the railroad as aforesaid the plaintiff in error accepted it, and at once entered into possession thereof, and commenced and for a time continued to use and operate the same as its own.
Mr. Charles M. Da Costa for plaintiff in error.
A writ of error always brings up to the superior court the whole record of the proceedings in the court below. Dred Scott v. Sanford, 19 How. 393, 403. “ But the present case being brought here on a writ of error, the whole record is under the consideration of the court.” Bank of the United States v. Smith, 11 Wheat. 171, 173. There can be no doubt that anything appearing upon the record which would have been fatal upon a motion in arrest of judgment is equally fatal upon a writ of error. Marshall, C. J., in Slacum n . Pornery, 6 Cranch, 221.
The evidence which was before the court and jury at the. p. 600time the charge was delivered, and which constituted a part of the record when the motion in arrest was made, did not disclose a case which in law supported the declaration, or entitled the plaintiff to recover.
The declaration is in trespass. It is so identified, first, because it uses the test words “ force and arms,” which are the translation of the original and characteristic words, “ vi et armis” and, secondly, because it avers that the defendant “ unlawfully and wrongfully made an assault and beat, bruised and wounded,” which in legal effect is adding the words “et contra pacem” which further distinguish and identify the action of trespass. Cornyn, Action, M. 2, note 2.
The plaintiff’s declaration thereof is of a criminal assault with a deadly weapon, with intent to kill. The Criminal Code of Colorado, within which the assault took place, contains these provisions:
“ § 19. Murder is the unlawful killing of a human being with malice aforethought, either express or implied.
“ § 20. Express malice is the deliberate intention unlawfully to take away the life of a fellow-creature, which is manifested by external circumstances capable of proof.
“ § 53. An assault with intent to commit murder shall subject the offender to confinement in the penitentiary for a term of not less than one year nor more than fourteen years.
“ § 137. If two or more persons meet to do an unlawful act upon a common cause of quarrel, and make advances towards it, they shall be guilty of a rout, and on conviction shall be severally fined in a sum not exceeding seventy dollars, or imprisoned in the county jail not exceeding four months.
“ § 183. If any person shall have upon him any pistol, gun, or other offensive weapon, with intent to assault any person, every such person, on conviction, shall be fined in any sum not exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months.”
It appears from the plaintiff’s evidence: 1. That he criminally armed himself; 2. That being so armed, he voluntarily, and in his individual capacity, and not as a “watchman, went out to meet those similarly armed, upon a common p. 601cause of quarrel, and with intent to kill them if he could — “ I gave the order to the other boys to return the fife; we kept up the firing for ten or fifteen minutes. I said to the rest of the boys, ‘ You had better quit firing, boys ; there is a train coming in front, and I guess they have got more men ’ ” — and 3. That in the “ rout ” so occasioned he was shot.
The judicial inquiry, therefore, is, whether, when such circumstances are proved by the plaintiff as his case, he has any legal cause of action against the person by whom he was shot, and whether the evidence adduced supported the declaration, which purported to set forth a good cause of action in trespass.
Under the given Circumstance, the precepts and maxims of the higher civil and common law are adverse to the acknowledgment of any right of action on the part of the joint and criminal wrongdoer, for, as was said in Rex v. Billingham, 2 Carr & P. 234, where the prisoners were indicted for a riot, “By law whatever is done in such an assembly by one, all present are equally liable for.”
For centuries the former law has declared that “ they who take the sword, shall perish with the sword,” and it would be new in principle to hold that, because the “ perishing ” was incomplete, a cause of action accrued. Though it is not a conclusive objection that an action be new in the instance, it is a persuasive argument against its maintenance that, in the multiform complexity of human concerns, no similar action has been maintained. “ If a case in law have no cousin or brother, it is a sure sign that it is illegitimate.” Ld. Bacon, Spedding’s ed., v. 7, p. 607. It is not believed that any case can be found in which one injured in a duel has been allowed to recover therefor from his antagonist, or in which, when one went out avowedly to murder some one, and has been injured before the homicide was effected, he has been allowed to recover. The going out of A with intent to shoot B, and B’s shooting A after A has discharged his gun, does not seem from the reports as yet to give a cause of action to A. Even if B were indictable by the commonwealth, that would not demonstrate his civil liability to one in pari delicto, for the general rule would seem to be as stated by Lord Lyndhurst, in Moriarty v. p. 602Brooks, 6 Carr & P. 684: “ If a person comes up to attack me, and I put myself in a fighting attitude to defend myself, this is not an assault on my part.” Nor in this connection is it a matter of moment that the person who discharged the gun might have been personally a trespasser. McEvoy v. Drogheda, 16 Weekly Reporter, 34; Adams v. 'Waggoner, 33 Ind. 531; Bell v. Homsley, 3 Jones, 131, and other similar cases do not conclude the question which arises on the case, as made by the plaintiff and not by way of evidence for the defence, nor affirmatively settle the law that the given case is not concluded by the application thereto of well settled precepts and maxims of the civil and common law. Among these precepts and maxims are the following: Consentio et agento pari poena plectentur, 5 Rep. 80; and dh pari delicto potior est conditio defendentis, which is a maxim of public policy equally respected in courts of law and equity. Taylor v. Chester, L. R. 4 Q. B. 309; see Story Eq. Jur. § 298; Broom’s Leg. Max. 728; Colburn v. Patmore, 1 Cr. M. & R. 73, 83, where it is said: “ I know of no case in which a person, who has committed an act declared by law to be criminal, has been permitted to recover compensation against a person who acted jointly with him in the commission of the crime. It is not necessary to give any opinion upon this point, but I may say that I entertain little doubt that a person who is declared by law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission.”
Ex turpi causa non oritur actio. Volenti non fit injuria. Consent is a perfect shield in civil injury.
Thus in Eivaz n . Nicholls, 2 C. B. 501 et seq., which was an action brought for an alleged conspiracy between .the defendant and one C. to obtain payment of a bill of exchange, accepted by the plaintiff in consideration that B. would cease from prosecuting C. for a crime, it was held that the action would not lie, inasmuch as it sprang out of an illegal transaction in which both the plaintiff and defendant had been engaged, and of which proof was essential to establish the plaintiff’s claim.
In Holman v. Johnson, Cowp. 341, 343, it was said: “ The principle of public policy is this, ex dolo, &c. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act,” and what is illegality was stated in Degroot v. Van Duzer, 20 Wend. 390, to be, “the intention to aid in a violation of the law.”
So also it was said in Lowell v. Boston c& Lowell Railroad, 23 Pick. 24, 32 C. 34 Am. Dec. 33], that the general rule of law is that where two parties participate in the commission of a criminal act, and one party suffers damages thereby, he is not entitled to indemnity or contribution from the other party. So also is the rule of the civil law, “ nemo ex delicto consequi potest actionem.” Here the plaintiff and the man who shot him were, upon the plaintiff’s evidence, jointly engaged in an attempt to commit the murder of whomsoever they might shoot, and the crime was none the less joint because each proposed to shoot the members of the opposing party, and not their friends.
Again. He who voluntarily fires upon an opposing party consents that such fire with all its consequences may be returned. Like a man who goes unnecessarily where he is advised that there are spring guns, he does so at his own peril. See also Llolt v. Wilkes, 3 B. & Aid. 304; Stout v. Wren, 1 Hawks, 420; Galbraith v. Fleming, 27 N. W. Rep. N. S. 581; Queen v. Guthrie, L. R., 8 Q. B. D. 553 ; Champer v. State, 14 Ohio St. 437; Duncan v. Commonwealth, 6 Dana, 295; S?nith v. State, 12 Ohio St. 466, 470 [& C. 80 Am. Dec. 355].
The ingenious device of defeating the effect of the assent by asserting that it is invalid, because the law does not permit an assent to be given to that which is criminal, was summarily and properly disposed of in State v. Cooper, 2 Zabr. (22 N. J. Law) 52, 53, in these words: “ It was insisted upon the argu-. ment that the assent of the mother was null [to an attempt to procure abortion before she was quick with child]; that the offence was of so high a nature that no assent of hers could purge the criminality. But this, it is obvious, is begging the question. The charge of assault against the person of the mother is clearly purged of criminality by her assent. The indictment is valid, but if, upon the trial, it appears that the
€04 OCTOBER TERM, 1886.
means used to procure the abortion were used with the consent of the mother, the defendant must be acquitted.”
Under such circumstances, the maxims “ Ex turpi” “In pari delicto” and “Consent is a perfect shield,” apply, and are decisive of the case, Taylor v. Chester, L. R., 4 Q. B. 314. If they are so decisive, then a charge which asserted an absolute right to recover and a ruling which refused to arrest the judgment because there was no evidence to support the declaration, were alike erroneous, and require a reversal of the judgment, as such charge and ruling were duly excepted to at the time.
Upon the exceptions to the admission of evidence as to facts and declarations both prior and subsequent to the injury, the case of Vicksburg v. O’Brien, 119 U. S. 99, is relevant upon the question of what evidence is so connected with the res gestae as to be admissible; and the case of Moore v. Arlam, 2 Chitty, 198, is relevant as to the evidence of the special damage, in which Bayley, J., stated the rule as follows: “ The rule as to special damage is that you may give in evidence any special damage which is the clear and immediate result of the act complained of, but you cannot give in evidence as special damage any remote consequences.” A supposed inability hereafter to procreate would seem to be rather a remote consequence from a gunshot wound in the hip, especially as the attempt does not appear to have been made, and before evidence thereof was admissible that result should have been pleaded as the clear and immediate result of the wound. It is not believed that the literature of the medical profession would afford any easily accessible precedent establishing that the “swelling” and “wasting away” described on p. 13 of the record, and so strongly submitted in the charge were the “ clear and immediate result ” of a ball passing through the hip. But if it would, the defendant was entitled to notice in the declaration that that result would be proved as “ a clear and immediate ” one, so as to enable it to be prepared to meet the evidence adduced.
Mr. John M. Waldron and Mr. Edward O. Wolcott also filed a brief for plaintiff in error.
Jfr. John H. Knaelxil for defendant in error.
Mr . Just ice Harlan , after stating the case as above reported, delivered the opinion of the court.
One of the propositions advanced by counsel for the company is this: That it appears from the plaintiff’s case, and by his evidence, that he voluntarily armed himself, and taking the law into his own hands, joined an illegal assembly for the purpose, if necessary, of committing murder; that, in the course of the riot and rout, he received a wound at the hands of those whom he had sought by violence to destroy; that, under such circumstances, the law will not permit him to recover for an alleged assault, but conclusively presumes his assent thereto; nor will the law permit him to recover through the medium and by the aid of an illegal transaction, to which he was a party, and which constitutes the foundation of his case.
The same proposition was stated in another form in argument : That the plaintiff engaged voluntarily, and not for his necessary self-defence, in a physical combat with others, and cannot, upon principle, maintain a civil action to recover damages for injuries received in such combat at the hands of his adversary, unless the latter beat him excessively or unreasonably ; this, upon the ground that, “ where two parties participate in the commission of a criminal act, and one party suffers damages thereby, he is not entitled to indemnity or contribution from the other party.”
These propositions have no application in the present case. The evidence, taken together, furnishes no basis for the suggestion that the plaintiff voluntarily joined an illegal assembly for the purpose, if necessary, of committing murder, or any other criminal offence. Nor does it justify the assertion that he voluntarily engaged in a physical combat with others. All that he did on the occasion of his being injured was by way of preparation to protect himself, and the property of which he and his co-employes were in peaceable possession, against organized violence. It appears in proof, p. 606as stated by the court below, that the Atchison, Topeka and Santa Fe Railroad Company was in the actual, peaceable possession of the road when the other company, by an armed body of men, organized and under the command of its chief officers, proceeded, in a violent manner, to drive the agents and servants of the former company from the posts to which they had been respectively assigned. It was a demonstration of force and violence, that disturbed the peace of the entire country along the line of the railway, and involved the safety and lives of many human beings. It is a plain case, on the proof, of a corporation taking the law into its own hands, and by force, and the commission, of a breach of the peace determining the question of the' right to the possession of a public highway established primarily for the convenience of the people. The courts of the territory were open for the redress of any wrongs that had been, or were being, committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to right of possession, would have involved some delay, that was no reason for the employment of force—least of all, for the use of violent means under circumstances imperilling the peace of the community and the lives of citizens. To such delays all—whether individuals or corporations—must submit, whatever may be the temporary inconvenience resulting therefrom. We need scarcely suggest that this duty, in a peculiar sense, rests upon corporations, which keep in their employment large bodies of men, whose support depends upon their ready obedience of the orders of their superior officers, and who, being organized for the accomplishment of illegal purposes, may endanger the public peace, as well as the personal safety and the property of others besides those immediately concerned in their movements.
These principles, under somewhat different circumstances, were recognized and enforced by this court at the present term. One Johnson was in the actual, peaceable possession of eighteen miles of a railroad built by him for a railroad company, and was running his own locomotives over it. He claimed the right to hold possession until he was paid for his p. 607work. But the company, disputing his right to possession, ejected him by force and violence. He brought his action of forcible entry and detainer. This court said that the party “so using force and acquiring possession may have the superior title, or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then, when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance.” Iron Mountain de Helena Railroad v. Johnson, 119 U. S. 608, 611. While this language was used in a case arising under a local statute, relating to actions of forcible entry and detainer, it is not without force in cases like this, where the peaceable possession of property .is disturbed by such means as constitute a breach of the peace. If, in the employment of force and violence, personal injury arises therefrom to the person or persons thus in peaceable possession, the party using such unnecessary force and violence is liable in damages, without reference to the question of legal title or right of possession.
Reference was made in argument to those portions of the charge that refer to the liability of corporations for torts committed by their employes and servants.
In Philadelphia, Wilmington de Baltimore Railroad v. Quigley, 21 How. 202, this court held that a railroad corporation was responsible for the publication by them of a libel, in which the capacity and skill of a mechanic and builder of depots, bridges, station-houses, and other structures for railroad companies, were falsely and maliciously disparaged and under valued. The publication, in that case, consisted in the preservation, in the permanent form of a book for distribution among the persons belonging to the corporation, of a report made by a committee of the company’s board of directors, in relation
<ÍO8 OCTOBER TERM, 1886.
to the administration and dealings of the plaintiff as a superintendent of the road. The court, upon a full review of the authorities, held it to be the result of the cases, “ that for acts done by the agents of a corporation either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible as an individual is responsible under similar circumstances.” In State v. Morris & Essex Railroad, 23 N. J. Law (2 Zabriskie) 369, it was well said that, “ if a corporation has itself no hands with which to strike, it may employ the hands of others ; and it is now perfectly well settled, contrary to the ancient authorities, that a corporation is liable civiliter for all torts committed by its servants or agents by authority of the corporation, express or implied.
. The result of the modern cases is, that a corporation is liable civiliter for torts committed by its servants or agents precisely as a natural person ; and that it is liable as a natural person for the acts of its agents done by its authority, express or implied, though there be neither a written appointment under seal jior a vote of the corporation constituting the agency or authorizing the act.” See also Salt Lake City v. Hollister, 118 IT. S. 256, 260 ; New Jersey Steamboat Company v. Brockett, 121 IT. S. 637 ', National Bank v. Graham, 100 IT. S. 699, 702. The instructions given to the jury were in harmony with these salutary principles. Whatever may be said of some expressions in the charge, when detached from their context, the whole charge was as favorable to the defendant as it was entitled to demand under the evidence.
One of the consequences of the wound received by the plaintiff at the hands of the defendant’s servants was the loss of the power to have offspring — a loss resulting directly and proximately from the nature of the wound. Evidence of this fact was, therefore, admissible, although the declaration does not, in terms, specify such loss as one of the results of the wound. The court very properly instructed the jury that such impotency, if caused by the defendant’s wrong, might be considered in estimating any compensatory damages to which the plaintiff might be found, under all the evidence, to be entitled. Wade v. Leroy, 20 How. 34, 44.
The court also instructed the jury that they were not limited to compensatory damages, but could give punitive or exemplary damages, if it was found that the defendant acted with bad intent, and in pursuance of an unlawful purpose to forcibly take possession of the railway occupied by the other company, and in so doing shot the plaintiff, causing him incurable and permanent injury; always bearing in mind that the total damages could not exceed the sum claimed in the declaration. This instruction, the company contends, was erroneous. Its counsel argue that, while a master may be accountable to an injured party to the extent of compensatory damages for the wrongful acts of his servant — provided the servant is acting within the general scope of his employment in committing the injury — even though the master may not have authorized or may have even forbidden the doing of the particular act complained of, yet he cannot be mulcted in exemplary damages unless he directed the servant to commit the special wrong in question in such manner as to personally identify himself with the servant in the perpetration of the injurious act.
The right of the jury in some cases to award exemplary or punitive damages is no longer an open question in this court. In Day v. Woodworth, 13 How. 363, 371, which was an action of trespass for tearing down and destroying a mill-dam, this court said that in all actions of trespass, and all actions on the case for torts, “ a jury may inflict what are called exemplary, punitive, or vindictive damages, upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff; ” and that such exemplary damages were allowable “ in actions of trespass where the injury has been wanton or malicious, or gross and outrageous.” The general rule was recognized and enforced in Philadelphia, Wilmington de jBaltimore Railroad Co. v. Quigley, which, as we have seen, was an action to recover damages against a corporation for a libel; in the latter case, the court observing that the malice spoken of in the rule announced in Day v. Woodworth was not merely the doing of an unlawful or injurious act, but the act complained of must have been conceived “ in the spirit of mischief or of criminal indifference to civil obli-
VOL. CXXII—39 p. 610gâtions.” See also Milwaukee de St. Paul Railway v. Arms, 91 U. S. 489, 492 ; Missouri Pacific Railway v. Humes, 115 U. S. 512, 521 ; and Barry v. Edmunds, 116 U. S. 550, 562, 563.
The court, in the present case, said nothing to the jury that was inconsistent with the principle as settled in these cases. The jury were expressly restricted to compensatory damages, unless they found from the evidence that the defendant acted with bad intent and in pursuance of an unlawful purpose to employ force to dispossess the other company. The doctrine of punitive damages should certainly apply in a case like this, where a corporation, by its controlling officers, wantonly disturbed the peace of the community, and by the use of violent means endangered the lives of citizens in order to maintain rights, for the vindication of which, if they existed, an appeal should have been made to the judicial tribunals of the country. That the defendant, within the meaning of the rule holding corporations responsible for the misconduct of their servants in the course of its business and of their employment, directed that to be done which was done, it is not to be doubted from the evidence, the whole of which is given in the bill of exceptions. Its governing officers were in the actual command and directing the movements of what one of the witnesses described as the “ Denver and Rio Grande forces,” which were avowedly organized for the purpose of driving the other company and its employes, by force, from the possession of the road in question.
Other questions were discussed by counsel, but they do not, in our judgment, deserve consideration. Substantial justice has been done without violating any principle of law in the admission of evidence, or in the granting or refusing of instructions.
The judgment is affirmed.
RICE v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS. Submitted January 3,1887. — Decided March 7, 1887. The appellant, on the 17th February, 1886, filed his petition in the Court
of Claims, setting forth his appointment as assignee in bankruptcy of one Robert Erwin and of Hardee, his partner in business in Savannah; that Erwin in 1864 and in 1865 was the owner of a quantity of cotton, in the state of Georgia, which was seized and captured and the proceeds of which passed into the Treasury of the United States; that Congress, on the 5th February, 1877, passed an act to permit the Court of Claims to take jurisdiction of the claims of Erwin for this cotton, his right of action therefor being then barred; that at the time of the passage of that act Erwin’s said claims had passed into the hands of his assignee, and were a part of his assets in bankruptcy; and that this suit was brought in pursuance of the special act; and he prayed judgment for the amount in the Treasury. The United States demurred to this, and also moved to dismiss the petition. The Court of Claims dismissed the petition. On appeal that judgment is affirmed by a divided court.
This was an appeal from a judgment of the Court of Claims dismissing the petition of the appellant.
By the act of February *5,*1877, entitled “ An act for the relief of Robert Erwin,” 19 Stat. 509, Congress enacted: “ That the Court of Claims may take jurisdiction under the provisions of the act of March 12, 1863, entitled ‘ An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,’ of the claims of Robert Erwin, of Savannah, Ga., for property alleged to have been taken from him, which claims were by accident or mistake of his agent or attorney, and without fault or neglect on his part, as is claimed, not filed within the time limited by said act.”
Under this act Erwin, who had become a bankrupt after his property was seized by the military forces of the United States, brought suit in his own name in the Court of Claims. His petition was dismissed there on the ground that the title to the property was in the assignee, and this judgment was affirmed on appeal. 97 U. S. 392.
His assignee in bankruptcy then brought this suit. The petition was filed on the T7th February, 1886, and was as follows:
“ To the honorable the Court of Claims:
“The claimant, Lepine C. Rice, a citizen of the United States, resident in the city of Savannah, in the state of Georgia, respectfully represents:
“ 1. Under the provisions of the Revised Statutes of the United States, title Bankruptcy, he is the duly appointed arid qualified assignee of Robert Erwin and Charles S. Hardee, late partners trading as Erwin & Hardee, in the said city of Savannah, as appears more fully from certified copies of the adjudication of bankruptcy, and of the order making his appointment, herewith filed, marked, respectively, Claimant’s Exhibit, L. C. R. No. 1, and L. C. R. No. 2, and as such assignee he now brings this suit for the benefit of the trust so reposed in him.
“ 2. The said Robert Erwin, then a citizen of the state of Georgia, on the 21st day of December, 1864, was the exclusive owner, in his own right, of two hundred and eighty-three (283) bales of upland cotton stored in the said city of Savannah, which on or about that day was seized and captured by persons duly authorized and acting in behalf of the United States, and the proceeds of the sale made thereof, amounting, as is believed and it is here charged, to the net sum of forty-nine thousand six hundred and eighteen dollars and thirty-nine cents ($49,618.39), were paid into the Treasury of the United States, pursuant to the provisions of the act of Congress, approved March 12, 1863, c. 120, commonly called the captured and abandoned property act.
“And on or about the 1st day of July, 1865, he was also the owner exclusively and in his own right, of another lot of two hundred and sixty one (261) bales of sea-island cotton then stored at and in the warehouse of Evans & Parnell, in the town of Thomasville, in said state of Georgia, which on or about that day was also so seized and captured by persons duly authorized and acting in behalf of the United States, p. 613was removed to and stored at the ‘ Government cotton press ’ in the city of Savannah, where it remained in the custody of said agents of the United States until in the month of August following, when it was by them forwarded, upon the schooner Enchantress, to Simeon Draper, the United States Treasury agent in the city of New York, by whom it was subsequently sold for the account of the United States, and the proceeds thereof, amounting, as is believed, and it is here charged, to the net sum of one hundred and nineteen thousand eight hundred and fifty-seven dollars and thirty-four cents ($119,857.34), were duly accounted for by said Simeon Draper, and were paid into the Treasury of the United States in conformity with the said captured and abandoned property act.
“ 3. On the 31st day of December, 1868, the firm of Erwin & Hardee, of which said Robert Erwin was a member, filed their petition in bankruptcy under the provisions of the acts of Congress relating thereto, in pursuance of which, on the 15th day of January, 1869, they were duly adjudged bankrupts, as more fully appears in Exhibit L. C. R. No. 1.
“ And in the proceedings had in such bankruptcy one Robert H. Footman was appointed and qualified as assignee of said Erwin & Hardee, and proceeded in the administration of the trust until February 23, 1877, when, upon his resignation thereof, your petitioner, the claimant, as appears more fully from Exhibit L. C. R. No. 2, was appointed to succeed him, and was duly qualified as assignee of said bankrupts; and the claimant now avers that under and in virtue of the assignment in bankruptcy of the property and estates of said Erwin & Hardee and each of them, and of the proceedings had in the court in that regard, the claims of said Erwin, hereinbefore mentioned, against the United States, and for which this suit is prosecuted, became and now are vested in the claimant, who is now duly qualified and acting as assignee of said bankrupt as is hereinbefore alleged.
“4. Inasmuch as the right of said Erwin to maintain the action provided in the said captured and abandoned property act for and upon the said claims was barred by the limitation of suits under said statute, a special act of Congress was passed p. 614and became a law as of and on the 5th day of February, 1877, the same being entitled ‘An act for the relief of Robert Erwin,’ being found in 19 Stat. 509, which enacts and reads as follows:
“ ‘ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Court of Claims may take jurisdiction under the provisions of the act of March twelfth, eighteen hundred and sixty-three, entitled “ An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,” of the claims of Robert Erwin, of Savannah, Georgia, for property alleged to have been taken from him, which claims were by accident or mistake of his agent or attorney, and without fault or neglect on his part, as is claimed, not filed within the time limited by said act.’
“ 5. The claimant now avers that under and because of said last-recited act of Congress jurisdiction was given anew to this court to hear and determine the said claims of the said Erwin in the manner and by the proceedings provided in the captured and abandoned property act. But at the time of the enactment of said law all the property and rights of said Erwin which existed on the 31st day of December, 1868, had vested, as aforesaid, in his assignee in bankruptcy; and the said claims, then and now, were and are assets of the estate of said Erwin in bankruptcy, for which the claimant alone as such assignee could, or now can, maintain the proceedings prescribed by said captured and abandoned property act, and under and in virtue of the said special and enabling act hereinbefore recited. And he now comes and brings this suit in pursuance thereof.
“ 6. He further avers and charges that the said cotton was never abandoned nor condemned as forfeited to the United States; but that the said United States retains the net proceeds thereof only as trustees for the owner thereof; and in and by the said private act, as herein recited, it has recognized the claimant’s right to the proceeds thereof, upon the preferment of his claim in conformity with the provisions of the said captured and abandoned property act.
“ 7. He further avers that, except the assignment made as required by the bankrupt act, no assignment has been made at any time of the said claims or either of them, or of any part of them or either of them, but the same remain as assets of the said bankrupt estate; and he now claims payment thereof for the benefit of the said estate; and as such assignee he charges that he is justly entitled to have and receive the amounts herein claimed from the moneys in the Treasury of the United States, so held in trust for the benefit of those who shall establish their claim to it under the provisions of the captured and abandoned property act.
“ He therefore prays for judgment against the United States for the proceeds of the said cotton, so as aforesaid seized for and under the authority of the said United States, of which at the time of its seizure the said Robert Erwin was sole owner, and which was so sold, and the net proceeds of which, amounting in the aggregate to the sum of one hundred and sixty-nine thousand four hundred and seventy-five dollars and seventy-three cents ($169,475.73), have been paid into the Treasury, and now remain there as a part of the fund arising under said act.
Alber t Small ,
Attorney and Solicitor for Claimant.
Shel lab arg er & Wilso n ,
Of Counsel.”
The United States, by its assistant attorney general, on the 19th April, 1886, moved to dismiss this petition, and also at the same time demurred to it on the ground that it did not allege facts sufficient to constitute a cause of action.
Argument was heard on the motion and the demurrer together, and judgment was entered for the dismissal of the petition.
Richa rdso n , C. J., delivered the opinion of the court, in which, among other things, it was said : “ The defendants file a motion to dismiss for want of jurisdiction, and also a general demurrer, under each of which three objections are raised against the claimant’s petition —
“ (1) It is argued that the act under which the suit is brought was, in the words of the title, ‘ for the relief of Robert Erwin,’ and not for his creditors through the assignee in bankruptcy previously appointed, and that the latter acquired no rights thereby, both because the act was intended for him, Ogden v. Strong, 2 Paine, 584, and because the right to sue was a valuable right or privilege acquired after the appointment of the assignee, and did not pass by the assignment.
“ (2) It is also argued that an assignee in bankruptcy has no right to keep the estate open and bring actions nine years after his appointment. Rev. Stat. § 5057; Bailey v. Glover, 21 Wall. 342, 346; Walker v. Towner, 4 Dillon, 165.
“We express no final opinion on these two points, although we are inclined to think that one of them, at least, is well taken. They merit serious consideration, and could not be passed by did we not prefer to rest our decision upon the third objection, which concerns more particularly the jurisdiction of this court. But they will be open to the defendants in the Supreme Court on appeal, if the case should go there.
“ (3) The third objection is that the claim, under the act of 1877, accrued more than six years before the filing of the petition, and so is forever barred by the following section of the Revised Statutes, which was held by the Supreme Court in Haycraft's Case, 22 Wall. 81, and 10 C. Cl. 108, to be jurisdictional.
“ Sec . 1069. Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accruesi.
“ Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim p. 617from being barred, nor shall any of the said disabilities operate cumulatively.
“ A claim first accrues, within the meaning of the statute, when a suit may first be brought upon it, and from that day the six years’ limitation begins to run. Any suit under the act of February 5, 1877, might have been instituted by filing a petition within six years after that date. That time has long since passed, and the present claimant has lost his rights thereunder, if he ever had any, unless his case is taken out of the operation of § 1069 of the Revised Statutes in either of two ways which his counsel present.
“ In his behalf it is insisted that the section applies only to claims which came under the general jurisdiction of the court before its enactment, and not to claims founded upon special acts subsequently passed. We do not concur in this view. A similar doctrine in relation to the right of appeal under § 707 of the Revised Statutes was considered by the Supreme Court in Zellner's Case, 9 Wall. 244, and 7 C. Cl. 137. The court said: ‘ We cannot agree to the view that the general provision in the fifth section of the act of March 3, 1863, reorganizing the Court of Claims and conferring what may be called its general jurisdiction, cannot be invoked in this case. The language of the section is general: “ Either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court.” This court was organized as a special judicial tribunal to hear and render judgment in cases between the citizen and the government; the subjects of its jurisdiction were defined in the act, and generally the mode of conducting its proceedings, subject, of course, to such alterations and changes as Congress from time to time might see fit to make. The subjects of its jurisdiction could be enlarged or diminished, but this would not disturb or in any way affect the general plan or system of its organization. If new or additional subjects of jurisdiction were conferred, the effect would be simply to increase the labors of the court, the case to be heard and determined under the existing organization.’
« In McKee's Case, 10 C. Cl. 208, the Supreme Court held ex- p. 618*OCTOBER TERM, 1886***
1 Opinion of the Court.
pressly that ‘ Section 707 of the Revised Statutes gives to the United States the right of appeal from the adverse judgments of the Court of Claims in all cases where that court is required by any general or special law to take jurisdiction of a claim made against the United States and act judicially in its determination.’ 91 U. S. 442. And the Supreme Court took jurisdiction of an appeal from this court upon a judgment rendered against Robert Erwin under this very act of 1877, although the only authority for it was found in § 707 of the Revised Statutes. Erwin v. United States, 97 U. S. 392.
“ There is no distinction in principle between the application of the right of appeal under § 707, to special acts of legislation subsequently passed, and the application of the limitation of § 1069 to such cases.
“ The act of 1877 created a new and additional subject of jurisdiction and a new cause of action, by reviving an expired one, and in our opinion the general statute of limitations, as well as the general right of appeal, attaches and applies to it; just as when part payment on a promissory note takes a right of action thereon out of the statute, such right is not forever after relieved from all limitation, but the statute begins to run anew from the date of such payment.
“ It is now more than nine years since this court was opened anew to the rightful claimant, whoever he may be, under the act of 1877, and, according to the construction urged by the present claimant, it is never to be closed until he be found, and of his own motion comes in and files his petition, a construction which, in our opinion, is unreasonable and not to be adopted.
“While Congress has declared a general limitation of six years for ‘ every claim cognizable by the Court of Claims,’ and a still shorter one of two years, for claims under the captured or abandoned property act, „it is unreasonable to infer that it intended to confer upon every claimant under the act of 1877 — and the present one is the second who has appeared, Erwin's Case, 13 C. Cl. 49, affirmed on appeal, 97 U. S. 392—the unusual and extraordinary privilege accorded to no other citizen, of bringing an action against the government at any future p. 619time without limitation. Such a construction would be in conflict with all idea of repose, which is said to be the object of statutes of limitation, and to the general policy of Congress in all other cases.
“It was said in Claris Case, 96 U. S. 37, 11 C. Cl. 702, decided a year before the passage of the act of 1877 now under consideration: ‘ It is not to be doubted that subsequent subjects of jurisdiction would be subject to the provisions of the statute of limitation if they were in the nature of money demands against the government.’ This was then and has ever since been the settled doctrine of this court, and we have no doubt Congress so understood it when the act of 1877 was passed.
“ That the present claim, under that act, is a money demand against the government, and nothing else, we shall demonstrate beyond question, we are quite confident.
“But the claimant argues that the property received and sold, and the proceeds thereof in the Treasury, under the peculiar legislation of the captured or abandoned property act of March 12, 1863, 12 Stat. 820, are trust funds, of which the defendants are merely trustees, and are subject to the rules and practice of courts of equity in relation to equitable trusts, one of which is, that statutes of limitation do not run as between trustee and cestui que trust.
*****
“ A trust in which the so-called trustee may legally mingle the trust money with his own, employ it for his own use, and himself determine whether he will forever retain it, or will give it to others, is a singular trust, unknown to law or equity, and to which no principles of equity jurisprudence can be found to apply.
“ It is a universal rule of equity that if a trustee mingles trust money with his own and uses it for his own benefit, he shall account for or pay interest thereon to the cestui que trust. Story’s Equity, §§ 1277, 1277 a; Perry on Trusts, § 468.
“ But it is provided in Revised Statutes as follows:
“ ‘ Sec . 1091. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the p. 620Court of Claims, unless upon a contract expressly stipulating for the payment of interest?
“ This court has always applied that section to cases under subsequently enacted special acts and to those under the captured or abandoned property act.
*****
“In Taylor's Case, 104 U. S. 216, 222, the Supreme Court called the United States trustees of the surplus money paid into the Treasury from the sales of lands for taxes under the direct tax acts, 12 Stat. 292, 422, 640; 14 Stat. 568, over and above that which was required to pay the tax, interest, and costs. That court did not treat the case as one in equity, and upon a finding of facts by this court, as in cases at law, they held, as to the statute of limitations, that ‘the right of the owner of the land to recover the money which the government held for him as his trustee did not become a claim on which suit could be brought, and such as was cognizable by the Court of Claims, until demand therefor had been made at the Treasury. Upon such demand the claim first accrued,’ and the statute of limitation began to run. So in the present case, a suit cognizable by the Court of Claims could not have been brought after the limitation of the captured or abandoned property act had expired, until the passage of the act of 1877 specially authorizing it, and from that time the statute of limitation began to run and had run out long before the claimant came into court.”
Nott, J., dissented from this judgment and opinion, and filed a dissenting opinion. The following is an extract from it:
“ The plain and simple question in this case is whether the statute of limitations, Rev. Stat. 1069, applies to that subject of jurisdiction known as the captured property cases.
“In Hayoraft's Case, 22 Wall. 81, the counsel for the claim ant asked the same question, and the Supreme Court answered that it did not.
*****
“ What, then, is the condition of the claimant’s case ?
“ On the 20th of August, 1868, Robert Erwin was the equitar p. 621ble owner of a fund in the Treasury, of which the equitable title had never been divested from himself, being then held by the government as his trustee. On that day he might have instituted a suit for the fund, but on that day the jurisdictional period for instituting such suits expired. A provision of law confining jurisdiction to a certain period no more affects the party or the cause of action than a provision of law confining jurisdiction to a certain territory. Therefore Erwin’s right to the fund did not expire with the right of the court to entertain his case. The effect of the statute was simply that on that day as to such cases the door of the court was shut.
“ On the 5th February, 1877, Congress reopened the door by passing the private act, 19 Stat. 509. The original abandoned or captured property act said that the door should stand open for two years; the private act set no limitation of the kind, but leaves it open still, and still continues to declare that ‘ the Court of Claims may take jurisdiction ’ of the claim. The private act does not recreate the claim; it does not validate it; it does not remove any presumption of payment from it; it simply opens the door of the court and allows whoever may be entitled to do so to bring the claim in.
“ Why, then, should not the claim be heard ? The grant of jurisdiction has not expired; the private act has not been repealed ; it still continues to say ‘ the Court of Claims may take jurisdiction under the provisions of the act of March 12, 1863,’ ‘ of the claims of Robert Erwin; ’ why, then, should not the Court of Claims take jurisdiction and adjudge the case?
“ The counsel for the government answers that the general statute of limitations applies to this demand and bars the suit.
“ If the statute of limitations applies so as to preclude a trial upon the merits, it must apply not to the door of jurisdiction, but to the claim itself. Statutes of limitation are statutes of repose which do not extend to courts nor affect jurisdiction, but which attach to a debt or demand a presumption of payment, and operate to extinguish the thing itself as completely as if payment had been made. Therefore, if the statute of limitations applies to this claim, neither Robert Erwin, nor his p. 622assignee, nor any other person can ever assert a right to the fund derived from his cotton. All other claimants can; but this claim must be considered in law as actually paid and extinguished. It is conceded that the claim was not so extinguished when the private act was passed; it is conceded that none other of the thousands of claims which are still outstanding upon the captured property fund is presumptively or legally extinguished by the statute of limitations. Why, then, is this ? How is it possible that Congress by passing an act, without the solicitation of the legal owner of the claim, the present claimant, authorizing a court to take jurisdiction of a case and nothing more, can have attached to the claim itself another statute not previously applicable to it, which should in time work out a legal presumption of payment and an absolute extinguishment of the claimant’s rights ?
“ If it be asked whether this thing can go on forever, the answer seems a very plain one. Congress did not here pass a general act, nor an act affecting a class of claims, but made a grant of special jurisdiction for the benefit of a single, isolated case; the act of grace and favor did not confer a right, but provided a remedy; Congress can take away the remedy at any time without trenching upon the claimant’s rights.
“ The counsel for the claimant has supposed that in the administration of the abandoned or captured property act the fund in the Treasury was treated by this court as a fund in equity, and the counsel is right in his supposition. Considering that it dealt with millions and must involve some of the most perplexing questions that could possibly be brought before a court, that act was in one particular probably the most extraordinary statute that was ever enacted. All that relates to the jurisdiction and duties of the court, and to the rights and disabilities of the parties, is to be found in nine lines which are thrust into a section primarily relating to the bonds and books of account of agents of the Treasury. The judges who had to bear the heat and burden of that day in determining principles, in devising remedies, in framing a system which should be commensurate with the necessities of the situation — that is to say, the judges who administered the statute from the
Decision.
case of Tibbitts, in 1 C. Cl. 169, to the case of Boyd, in the ninth volume (p. 419), had an absolutely novel subject of jurisprudence assigned to them without one word of statutory guidance to direct them and without a precedent to be gathered from all the courts in the world.
“ Whatever may be thought of the wisdom of their conclusion, one thing is incontrovertible, and that is, that they, eventually, believed the fund in the Treasury to be a fund in equity, and that they exercised in regard to it whatever power of a court of equity might be necessary to protect the fund. The interlocutory proceedings, 4 C. Cl. 486; 5 id. 645, and the final decree, 7 id. 605, in the Elgee Cotton, Case, and the decree in the case of Rothschild, 6 C. Cl. 244, will illustrate to any lawyer with any knowledge of equity jurisdiction that the court was dealing with rights and remedies which belong to the discretionary powers of a court of equity, and which are not the rights and remedies that come within the inflexible jurisdiction of a court of law. Some attempts have been made to show that courts of law have dealt with implied trusts in some such way, but the only authorities that could be found were Bacon’s Abridgment, and Reeve’s History of the Common Law, and they, unhappily, related to a time when the court of chancery did not exist as a court of equity, and when the system of equity jurisprudence was not yet devised.
“ But I do not regard the statute of limitation as necessarily exclusive of equity cases. I place my conclusion here entirely upon the ground that the private act granted a remedy; that the remedy was not limited as to time, and that there is no law which attaches to this claim a presumption of payment.”
J/r. Albert Small, Air. Samuel Shelldbarger, Air. J. AL. Wilson, Air. Charles N. West, and ALr. Charles ALa/rshall for appellant.
Air. Attorney General and Air. Heber J. ALay for appellee.
Mr . Chief Justi ce Wait e announced that the judgment of the Court of Claims was
Affirmed by a divided court
APPENDIX.
i.
JUDGMENTS AND DECREES,
INTERLOCUTORY AND FINAL, AT OCTOBER TERM, 1886, NOT OTHERWISE REPORTED.
Chesap eake and Ohio Rail wa y v . White . (Docket No. 16.) Error to the Supreme Court of Appeals of West Virginia. October 12, 1886: Dismissed on motion of Mr. W. J. Robertson for plaintiff in error. No one opposing.
Loui si ana Sugar Refi ning Comp any v . Todd et al . (Docket No. 685.) Error to the Circuit Court of the United States for the Eastern District of Louisiana. October 12, 1886: Dismissed on motion of Mr. S. T. Wallis for plaintiff in error. No one opposing.
Caust en v. Young . (Docket No. 1209.) Appeal from the Supreme Court of the District of Columbia. October 18, 1886: Docketed and dismissed on motion of Mr. H. H. Wells for appellees. No one opposing.
Trayer v. Frank . (Docket No.. 1210.) Error to the Second Circuit Court of Appeals, Concordia Parish, Louisiana. October 18, 1886 : Docketed and dismissed on motion of Mr. James Lowndes for defendant in error. No one opposing.
Denver , South Park & Pacific Rail way v . Fitzge rald . (Docket No. 180.) Error to the Circuit Court of the United States vol . cxxii —40
(no text on this page in the source reporter)
for the District of Colorado. October 18, 1886: Dismissed on motion of Mr. John F. Dillon for plaintiff in error. Mr. T. M. Marquette for defendant in error.
Miller v . Union Pacific Railway . (Docket No. 215.) Appeal from the Circuit Court of the United States for the District of Nebraska. October 18, 1886 : On motion of appellee dismissed per stipulation. Mr. C. J. Phelps for appellant. Mr. John F. Dillon for appellee.
Contin ental Life Ins uran ce Comp any v . Pump hrey . (Docket No. 1228.) Error to the Circuit Court of the United States for the District of Maryland. October 20, 1886 : Docketed and dismissed on motion of Mr. Michael Bannon for the defendant in error.
New York Mutual Gas Light Company v . Thorp . (Docket No. 239.) Error to the Circuit Court of the United States for the Southern District of New York. October 21, 1886: Dismissed as per stipulation. Mr. T. M. Wheeler for plaintiff in error. Mr. W. C. Witter for defendant in error.
Wasat ch and Jordan Valley Railroad v . Snell . (Docket No. 1.) Error to the Supreme Court of the Territory of Utah. October 22, 1886 : Dismissed, with costs, pursuant to Rule 19. Mr. J. R. McBride and Mr. J. G. Sutherland for plaintiff in error. No appearance for defendant in error.
Hayes v . Seton . (Docket No. 3.) Appeal from the Circuit Court of the United States for the Eastern District of New York. October 22, 1886 : Dismissed, with costs, pursuant to Rule 19. Mr. J. H. Whitelegge and Mr. Livingston Gifford for appellant. Mr. G. G. Frelinghuysen and Mr. John Davis for appellee.
Mutual Life Insurance Company of New York v . Wackerle . (Docket No. 116.) Error to the Circuit Court of the United States for the Eastern District of Missouri. October 25, 1886 : Dismissed on motion of Mr. Benjamin H. Bristow, in behalf of counsel for the p. 627plaintiff in error. Mr. John F. Dillon and Mr. Wager Swayne for plaintiff in error. No one opposing.
East man v . Ecker . (Docket No. 139.) Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. October 25, 1886 : Dismissed on motion of Mr. H. Howson for appellants.
New Orlea ns v . Shepherd . (Docket No. 7.) Error to the Circuit Court of the United States for the Eastern District of Louisiana. October 25, 1886: Dismissed pursuant to Rule 19. Mr. C. F. Buch ior plaintiff in error. Mr. F. J. Semmes and Mr. C. W. Hornor for defendant in error.
Levin e v . Wilson . (Docket No. 13.) Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. October 25, 1886 : Dismissed with costs by appellant. Mr. J. R. Beckwith for appellant.
Hale v . Everett . (Docket No. 41.) Error to the Supreme Court of the State of Pennsylvania. November 1, 1886 : Dismissed per stipulation. Mr. George W. Biddle and Mr. George Harding for plaintiff in error. Mr. E. C. Mitchell and Mr. W. P. Bowman for defendant in error.
SCHINDELHOLZ V. NEW YORK AND COLORADO MINING AND MILLING Comp any . (Docket No. 958.) Appeal from the Circuit Court of the United States for the District of Colorado. November 1, 1886 : Dismissed, with costs, on motion of Mr. Leigh Robinson for appellant. No one opposing.
Arthur v . Barbour . (Docket No. 26.) Error to the Circuit Court of the United States for the Southern District of New York. Novembers, 1886 : Dismissed on motion of Mr. Assistant Attorney General Maury for plaintiff in error. Mr. M. W. Divine for defendants in error.
Ups hur v . Briscoe . (Docket No. 1278.) Error to the Supreme Court of Louisiana. November 8, 1886 : Docketed and dismissed on motion of Jfr. Assistant Attorney General Maury for defendant in error.
St .. Louis Iron Mountai n and Sout hern Rail wa y v . Crosnoe . (Docket No. 701.) Error to the Supreme Court of Missouri. November 8, 1886: Dismissed on motion of Mr. A. B. Browne for plaintiff in error. No one opposing.
Miss ouri Pacif ic Railway v . Snoddy . (Docket No. 702.) Error to the Supreme Court of Missouri. November 8, 1886: Dismissed on motion of Mr. A. B. Browne for plaintiff in error. No one opposing.
Fowle v. Hay . (Docket No. 383.) Appeal from the Circuit Court of the United States for the Eastern District of Virginia. November 9, 1886 : Dismissed on motion of Mr. H. 0. Glaughton for appellant. Mr. F. L. Smith for appellee.
Goodric h v . Schoeffer . (Docket No. 232.) Appeal from the Circuit Court of the United States for the Western District of Missouri. November 11,1886: Dismissed on motion of Mr. M. F. Morris for appellee, as per stipulation. Mr. C. 0. Tichenor for appellant.
Ely v. Mitch ell . (Docket No. 44.) Error to the Circuit Court of the United States for the Southern District of New York. November 12, 1886 : Dismissed under Rule 10. Mr. Moses Ely for plaintiff in error. Mr. John E. Parsons for defendant in error.
Kle in v . Spalding . (Docket No. 1169.) Error to the Circuit Court of the United States for the Northern District of Illinois. November 15, 1886 : Dismissed without prejudice, as per stipulation. Mr. Percy L. Shuman for plaintiff in error. Mr. Attorney General for defendant in error.
North Bloomfi eld Gravel Mining Company v . Woodru ff . (Docket No. 1289.) Appeal from the Circuit Court of the United States for the Northern District of California. November 15, 1886 : Docketed and dismissed ou motion of Jfr. A. B. Browne for appellee.
Arthur v . Barbour . (Docket No. 26.) Motion to rescind the judgment of dismissal entered November 3, 1886, and to enter one of affirmance with costs and interests. Mr. M. W. Divine for the motion. Mr. Assistant Attorney General Maury opposing. November 23, 1886. Mr . Chief Justic e Waite : This motion is denied. .
Celluloi d Manufact uring Comp any v . S. C. Noyes & Co. (Docket No. 1299.) Appeal from the Circuit Court of the United States for the District of Massachusetts. November 24, 1886: Docketed and dismissed on motion of Mr. E. B. Smith for appellees.
Celluloid Manufact uring Company v . American Zylonite Com - pany . (Docket No. 1300.) Appeal from the Circuit Court of the United States for the District of Massachusetts. November 24, 1886 : Docketed and dismissed on motion of Mr. E. B. Smith for appellees.
Ebbinghaus v . Killian . (Docket No. 644.) Appeal from the Supreme Court of the District of Columbia. November 29, 1886: Dismissed as per stipulation. Mr. P. E. Dye for appellant. Mr. H. TT7.se Garnett for appellees.
Stockw ell v . Boyce . (Docket No. 230.) Error to the Circuit Court of the United States for the Southern District of New York. December 2,1886 : Dismissed as per stipulation. Mr. M. H. Cardozo for plaintiff in error. Mr. Wm. G. Wilson for defendant in error.
Nati onal Life Insu ranc e Company .v . Schef fer . (Docket No. 70.) Error to the Supreme Court of Minnesota. December 2, 1886 : Dismissed pursuant to Rule 10. Mr. Frederick Allis for plaintiff in error.
Lanier v . Nas h . (Docket No. 200.) Appeal from the Circuit Court of the United States for the Northern District of Ohio. The opinion of the court, in announcing the final judgment in this case, is reported at 121 U. S. 404. The following interlocutory proceedings are not reported there.
Mr. David Stuart Hunshell, on behalf of the appellees, filed a motion to dismiss the appeal; and also filed a motion to restrain proceedings on an execution issued on a judgment recovered in the Court of Common Pleas of Logan County.
Mr . Chief Just ice Waite , on the 6th of December, 1886, said: The motion to dismiss is denied. We cannot dismiss a case for want of jurisdiction here because the court below ought to have dismissed it. That is a question which goes to the merits of the appeal. The further consideration of the motion for stay of execution is continued for notice to the other side to appear and show cause to the contrary on the third Monday of the present month. Service is to be made by delivering a copy of the motion and of the brief which has been filed in support of it and of this order on the counsel in the court below of William Goodrich, against whom the stay is asked, at least one week before the day fixed for the hearing.
On the 17th January, 1887, on the motion to restrain Goodrich from proceeding on his judgment, Mr . Chief Just ice Waite said : This motion is denied. The motion papers do not show any necessity for the order which is asked, as there is no proof of any attempt on the part of Goodrich, since the appeal, to cause his judgment to be carried into execution. In the absence of anything to the contrary it is to be presumed that the parties to a suit submit to a supersedeas obtained upon an appeal to this court. See post, 637.
Ormsby v . Webb . (Docket No. 1154.) Error to the Supreme Court of the District of Columbia. December 6, 1886 : Motion to dismiss or affirm. Mr. Enoch Totten for the motion. Mr. Wm. Stone Abert and Mr. J. J. Johnston opposing. Mr . Chief Justice Waite : Each of these motions is denied.
Phillips v . Mound City Land and Water Ass ociation . (Docket No. 819.) December 6, 1886 : Error to the Supreme Court of California. Motion to dismiss. Mr. A. T. Britton, Mr. A. B. p. 631Browne, and Mr. Walter H. Smith for the motion. Mr. Geo. H. Smith and Mr. Geo. F. Edmunds opposing. Mr . Chief Justi ce Waite : This motion is continued for hearing with the case on its merits.
Huis kamp v. Moline Wagon Company . (Docket No. 194.) December 13, 1886: Motion to dismiss. Mr. C. M. Osborn for the motion. Mr. James Hageman opposing. Mr . Chief Justic e Waite : This motion is denied. (This case is reported in 121 U. S. 310.)
Allen v . Texas and Pacifi c Railw ay . (Docket No. 1310.) Error to the Circuit Court of the United States for the Eastern District of Louisiana. December 14, 1886 : Docketed and dismissed on motion of Mr. J. H. Kennard for defendant in error.
Burke v . Wood . (Docket No. 99.) Error to the District Court of the United States for the District of West Virginia. December 16, 1886: Dismissed pursuant to Rule 10. Mr. G. D. Camden for plaintiff in error. No one opposing.
Creegan v. Andrews . (Docket No. 101.) Appeal from the Circuit Court of the United States for the Southern District of New York. December 16, 1886 : Dismissed as per stipulation. Mr. Wm. A. Senger for appellant. Mr. J. C. Clayton for appellees.
Tarve r v . Ficklin . (Docket No. 456.) Fick lin v . Tarver . (Docket No. 457.) Appeals from the Circuit Court of the United States for the Southern District of Georgia. December 17, 1886: Dismissed as per stipulation. Mr. Wm. Garrard and Mr. R. K. Hines for Tarver. Mr. H. J. Robertson for Ficklin.
Pacific Railw ay Impr ovement Co. v. Von Hoffman . (Docket No. 337.) Error to the Circuit Court of the United States for the Southern District of New York. December 17, 1886 : Dismissed as per stipulation. Mr. John F. Dillon for plaintiff in error. Mr. Henry T. Wing for defendant in error.
Sun Mutual Insurance Co . v . The Kountz Line . (Docket No. 136.) December 13, 1886: Motion to dismiss or affirm. Mr. R. H. Browne and Mr. C. B. Singleton for the motion. Mr. 0. B. Sansum opposing. December 20, 1886. Mr . Chief Justi ce Waite : Each of these motions is denied. (The opinion and judgment of the court in this case are reported ante, page 583.)
Raymond v . Bill gery . (Docket No. 106.) Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. December 21, 1886: Dismissed pursuant to Rule 10. Mr. G. A. Breaux for appellant. No one opposing.
Burlington , Cedar Rapid s and Northern Railw ay v . Dunn . (Docket No. 977.) Error to the Supreme Court of Minnesota, Motions to dismiss or affirm. Mr. Enoch Totten for the motions. Mr. Eppa Hunton and Mr. Jefferson Chandler opposing. January 10, 1887. Mr . Chief Justic e Waite : Each of these motions is denied. The claim that the case was removed to the Circuit Court of the United States under Sub-section 3, § 639 of thé Revised Statutes, presents a Federal question of too much practical importance to be decided on a motion to affirm. See 121 U. S. 182.
Maag v . Hyde . (Docket No. 1273.) Appeal from the Circuit Court of the United States for the District of Indiana. December 20, 1886 : Motion to dismiss submitted. Mr. A. IF. Hatch and Mr. Lewis Wallace for the motion. Mr. D. V. Burns opposing. January 10,1887. Mr . Chief Just ice Waite : This record has not been printed and the motion papers do not present the case in a way to enable us to act understandingly without reference to the transcript on file. Waterville v. Van Slyke, 115 U. S. 290. The motion is therefore overruled, without prejudice to its renewal after the record is printed, or so much thereof as may be necessary for the determination of the question of jurisdiction.
Lawrence v . Reed . (Docket No. 812.) Appeal from the Circuit Court of the United States for the Western District of p. 633Michigan. January 10, 1887 : Dismissed on motion of Mr. N. H. Stewart for appellant. Mr. M. D. Leggett, Mr. B. F. Thurston, and Mr. Wm. G. Howard for appellees.
Chase v . Reed . (Docket No. 813.) Appeal from the Circuit Court of the United States for the Western District of Michigan. January 10, 1887: Dismissed on motion of Mr. A. H. Stewart for appellants. Mr. M. D. Leggett, Mr. B. F. Thurston, and Mr. Wm. G. Howard for appellees.
Baltimore and Ohio Railroa d v . Mill er . (Docket No. 1239.) Error to and appeal from the Circuit Court of the United States for the District of West Virginia. January 10, 1887 : Dismissed, with costs, on motion of Mr. E. J. D. Cross for plaintiff in error and appellant. Mr. Alfred Caldwell for defendants in error and appellees.
Baltim ore and Ohio Railroad v . Board of Public Works of West Virgi nia . (Docket No. 1240.) Error to and appeal from the Circuit Court of the United States for the District of West Virginia. January 10, 1887: Dismissed, with costs, on motion of Mr. E. J. D. Cross for plaintiffs in error and appellants. Mr. Alfred Caldwell for defendants in error and appellees.
Santa Anna v . Hamlin . (Docket No. 441.) Error to the Circuit Court of the United States for the Southern District of Illinois. January 11, 1887 : Dismissed with costs.
Kell y v . Watson . (Docket No. 123.) Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. January 12, 1887: Dismissed with costs pursuant to 10th Rule.
Dunton v . Smedl ey . (Docket No. 124.) Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. January 12, 1887: Dismissed with costs pursuant to 10th Rule.
Jef frie s v . Herman . (Docket No. 131.) On motion of Mr. J. M. Wilson, for defendant in error, dismissed witlr costs pursuant to 16th Rule. January 13, 1887.
Gibson v . Shuf eld t . (Docket No. 868.) Appeal from the Circuit Court of the United States for the Eastern District of Virginia. Motion to dismiss. Messrs. W. W. Crump and John A. Coke in behalf of motion. No one opposing. January 17, 1887. Mr . Chief Justic e Waite : This motion is denied. The record has not been printed, and the motion papers do not present the case in a way to enable us to act understandingly without reference to the transcript on file. (The opinion and judgment of the court in this case is reported ante, page 27.)
New castle Northern Railroad v . Simp son . (Docket No. 670.) Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. January 17, 1887 : Dismissed, with costs, on motion of Mr. R. B. McComb for appellant. No one opposing.
Hurd v . Gill Car Manufacturing Comp any . (Docket No. 201.) Error to the Circuit Court of the United States for the Northern District of Ohio. January 19, 1887: Dismissed on motion of Mr. Walter H. Smith pursuant to stipulation. Mr. C. H. Scribner for appellant. Mr. E. L. Taylor for appellee.
Hele na Bridge Company v . King . (Docket No. 140.) Appeal from the Circuit Court of the United States for the Western District of Texas. January 19, 1887: Affirmed with costs. Mr. M. F. Morris for appellant. Mr. H. E. Davis for appellee.
Backus Water Motor Company v . Tuerk . (Docket No. 141.) Appeal from the Circuit Court of the United States for the Northern District of Illinois. January 19, 1887 : Dismissed pursuant to the 10th Rule. Mr. S. S. Henkle for appellant. No one opposing.
Seale v . Madison . (Docket No. 1237.) Appeal from the Circuit Court of the United States for the Western District of p. 635Louisiana. January 21, 1887: Dismissed on motion of Mr. S. Prentiss Nutt for appellant. Mr. F. P. Cuppy for appellee.
Seale v . Holmes . (Docket No. 1238.) Appeal from the Circuit Court of the United States for the Western District of Louisiana. January 21, 1887: Dismissed on motion of Mr. S. Prentiss Nutt for appellant. Mr. F. P. Cuppy for appellee.
Egglesto n v . Centenn ial Mutual Lif e Ass ociation . (Docket No. 261.) Error to the Circuit Court of the United States for the Eastern District of Missouri. January 21, 1887 : Dismissed on motion of Mr. James 0. Broadhead in behalf of counsel for plaintiffs in error.
German -American Hail Insu ranc e Company v . F. J. Schreibe r . (Docket No. 146.) In error to the Circuit Court of the United States for the District of Minnesota. January 24, 1887 : Dismissed pursuant to the 10th Rule. Mr. John B. Sanborn for the plaintiff in error.
Barna rd and Leas Manuf acturi ng Comp any v . Mill iken . (Docket No. 147.) Appeal from the Circuit Court of the United States for the Southern District of Illinois. January 24, 1887: Dismissed pursuant to the 10th Rule. Mr. W. G. Rainey for appellants.
Rea v. The Steamer Ecli ps e . (Docket No. 1331.) Appeal from the Supreme Court of the Territory of Dakota. January 24, 1887 r Docketed and dismissed, with costs. March 28, 1887. Order rescinded, and leave granted to docket cause.
Winthrop Iron Company v . Meeker . (Docket No. 154.) Appeal from the Circuit Court of the United States for the Western District of Michigan. January 26, 1887: Reversed and remanded pursuant to stipulation on file, on motion of Mr. R. D. Mussey for appellants. Mr. Frederic Ullman for appellees.
€36 APPENDIX.
St . Louis , Fort Scott , and Wichita Railroad v . Drusmore . (Docket No. 281.) Appeal from the Circuit Court of the United States for the District of Kansas. January 31, 1887: On motion of Mr. Walter H. Smith reversed and remanded pursuant to stipulation on file. Mr. J. C. Brown and Mr. J. F. Dillon for appellant. Mr. Clarence A. Seward for appellees.
Home Insurance Comp any v . New York . (Docket No. 14.) February 7, 1887 : Petition for a rehearing of the cause decided at this term and reported 119 U. S. 129, granted ; judgment of November 15, 1886, herein rescinded and annulled, and the cause restored to its place on the docket. Mr. B. H. Bristow for the motion.
Crescent City Live Stock Landing and Slaughter House Compa ny v . Butchers ’ Union Slaughter House and Live Stock Landing Comp any . (Docket No. 825.) Error to the Supreme Court of the State of Louisiana. February 7, 1887 : On motion of Mr. William A. Maury, of counsel for the plaintiff in error, (consent of Mr. B. R. Forman for the defendant in error having been filed,) this cause was stricken from the docket.
Thurber v . Woodward . (Docket No. 498.) Appeal from the Circuit Court of the United States for the Southern District of Iowa. February 7, 1887: Dismissed, with costs, on motion of Mr. W. C. Goudy for appellants. Mr. C. C. Nourse for appellees.
Thurber v . Woodward . (Docket No. 499.) Appeal from the Circuit Court of the United States for the Southern District of Iowa. February 7, 1887 : Dismissed, with costs, on motion of Mr. W. C. Goudy for appellants. Mr. C. C. Nourse for appellees.
The Selma , Rome and Dalton Rail road Comp any v . The Unite d States . (Docket No. 1014.) Appeal from the Court of Claims. March 7, 1887: Affirmed by a divided court. Messrs. George A. King and W. W. Belknap for appellant. Mr. Attorney General and Mr. Assistant Attorney General Howard for appellee. March 28, 1887: Petition for a rehearing granted. Order of p. 637March 7, 1887, rescinded and annulled, and cause restored to its place on the docket for a reargument before a full bench.
Urbana v . Sanfo rd . (Docket No. 677.) Error to the Circuit Court of the United States for the Southern District of Illinois. March 7, 1887: Dismissed, with costs, on motion of Mr. J. H. Rowell on behalf of Mr. J. 0. Cunningham for plaintiff in error.
Bis sell v . Plumb . (Docket No. 782.) Appeal from the Circuit Court of the United States for the Western District of Michigan. March 7,1887 : Dismissed, with costs, pursuant to stipulation on file. Mr. John W. Stone for appellant. Mr. Edward Taggart for appellee.
Spenc er v . Merchant . (Docket No. 1304.) March 7, 1887: Ordered by the court that the submission of this cause be set aside and the cause restored to its place on the docket.
Wright v . Dubois . (Docket No. 1352.) Appeal from the Circuit Court of the United States for the District of Colorado. March 7, 1887: Docketed and dismissed, with costs, on motion of Mr. G. G. Symes for appellee.
Boughton v . Charter Oak Life Insurance Compa ny . (Docket No. 1353). Appeal from the Supreme Court of the District of Columbia. March 7, 1887 : Docketed and dismissed, with costs, on motion of Mr. S. R. Bond for appellees.
Lanier v . Nash . (Docket No. 200.) Appeal from the Circuit Court of the United States for the Northern District of Ohio. March 14, 1887: Motion of John and Ellen Nash for a stay of execution on a judgment against them in favor of William Goodrich, pending this appeal. (See 121 U. S. 404, and ante, 630.) Mr. D. S. Hounshell and Mr. Wm. Lawrence for the motion. No one opposing. Mr . Chief Justic e Waite : This motion is denied. The judgment in favor of Goodrich is involved in this appeal only to the extent that it is a lien on the property covered by the mortgage which is the subject matter of the suit. The executions p. 638which are complained of were issued after the appeal and levied on other property. There is no such merger of the judgment nor supersedeas in this case as will operate to stay a proceeding against other property not involved herein.
Gilson v . Dayton . (Docket No. 1308.) Error to the Circuit Court of the United States for the Northern District of Illinois. March 14, 1887: On motion to dismiss or affirm. Mr. G. 8. Eldredge for the motion. Mr. G. A. Sanders opposing. Mr . Chief Just ice Waite : These motions are denied. The bond is sufficient, and the questions involved in the merits are not such as ought to be disposed of on a motion to affirm.
Ciss el v. Dutch . (Docket No. 437.) Appeal from the Supreme Court of the District of Columbia. March 14, 1887 : On motion to dismiss. Mr. J. Parker Jourdan for the motion. Mr. T. A. Lambert opposing. Mr . Chief Justic e Waite : This motion is denied. The affidavits show by a fair preponderance of evidence that the value of the property in dispute exceeded two thousand five hundred dollars at the time of the decree and the appeal.
Lake Shore and Michigan Sout hern Rail road v . Scho - field . (Docket No. 1290.) March 14, 1887: On motion to dismiss or affirm. Mr. J. E. Ingersoll for the motion. Motion to dismiss postponed to hearing on merits.
Vicksb urg , Shrevepo rt and Pacific Rail road v . Smith . (Docket No. 1309.) Error to the Circuit Court of the United States for the Western District of Louisiana. March 14, 1887: On motion to dismiss. Mr. A. J. Falls and Mr. S. F. Phillips for the motion. Mr. E. M. Johnson opposing. Mr . Chief Justi ce Waite : This motion is continued for hearing with the case on its merits. The record has not been printed, and the motion papers do not present the questions involved in a way to enable us to act understandingly without reference to the transcript on file.
Dodge v . The Sup reme Court of the Distri ct of Columbi a . On motion for leave to file a petition for a writ of prohibition. Mr. p. 639O. D. Barrett for the motion. March 14, 1887 : Mr . Chief Jus - tice Waite : This motion is denied. The petition which is presented does not on its face show facts sufficient to entitle the petitioner to the writ he seeks.
Bel den Minin g Comp any v . Harvey . (Docket No. 209.) Error to the Circuit Court of the United States for the District of Colorado. March 15, 1887: Dismissed on motion of Jfr. Chapin Brown, pursuant to stipulation on file. Jfr. Chapin Brown for plaintiff in error. Jfr. C. 8. Thomas and Mr. T. M. Patterson for defendant ia error.
Joliet v . Foste r . (Docket No. 1114.) Appeal from the Circuit Court of the United States for the Northern District of Illinois. March 21, 1887: Affirmed by a divided court. Mr. Thomas Dent and Mr. Melville W. Fuller for appellant. Mr. James L. High for appellees.
Davies v . Corbin . (Docket No. 237.) Error to the Circuit Court of the United States for the Eastern District of Arkansas. March 21, 1887: Dismissed on motion of Mr. Attorney General for plaintiff in error. Mr. W. Hallett Phillips, Mr. B. C. Browne, Mr. E. W. Kimball, and Mr. C. P. Redmond for defendants in error.
Gain es v . Corbin . (Docket No. 496.) Error to the Circuit Court of the United States for the Eastern District of Arkansas. March 21, 1887: Dismissed on motion of Mr. Attorney General for plaintiffs in error. Mr. W. Hallett Phillips and Mr. C. P. Redmond for defendants in error.
Robertson v . Mathe son . (Docket No. 401.) Error to the Circuit Court of the United States for the Southern District of New York. March 21, 1887: Dismissed on motion of Mr. Attorney General for plaintiff in error. Mr. Edward Hartley and Mr. W. H. Coleman for defendants in error.
Moses v . Wooster . (Docket No. 151.) Appeal from the Circuit Court of the United States for the Southern District of New York. March 21, 1887: Dismissed on call pursuant to stipulation on file. Jfr. H. P. Allen for appellants. Mr. Frederic H. Betts for appellee.
Amer ican Iron Company v . Anglo -American Roofi ng Company . (Docket No. 162.) Appeal from the Circuit Court of the United States for the Southern District of New York. March 24, 1887: Dismissed pursuant to the 10th Rule. Mr. L. IP. Frost for appellant. Mr. E. C. Webb for appellee.
Central Construction Company v . Paul . (Docket No. 164.) Error to the Circuit Court of the United States for the Northern District of Illinois. March 24, 1887: Dismissed pursuant to the 10th Rule. Mr. Henry G. Miller for plaintiff in error. Mr. W. W. Upton for defendant in error.
White v . Benedi ct and Burnham Manufacturing Comp any . (Docket No. 166.) Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. March 25, 1887: Dismissed pursuant to the 10th Rule. Mr. M. D. Connolly for appellant. Mr. John K. Beach for appellee.
Kibbi e v. Jennings (Docket No. 152.) and Dolan v . Jennin gs (Docket No. 153). Appeals from the Circuit Court of the United States for the Southern District of New York. Mr. John R. Bennett for appellants. Mr. Arthur v. Briesen for appellees. March 28,1887. Mr . Chief Just ice Waite : The decree in each of these cases is affirmed. No further opinion will be delivered.
Dist rict of Columbia v . O’Hare . (Docket No. 158.) Appeal from the Court of Claims. Mr. Attorney General and Mr. F. P. Dewees fot appellant. Mr. William A. Cook and Mr. C. C. Cole, for appellee. March 28, 1887. Mr . Chief Justi ce Waite : This judgment is affirmed. No further opinion will be delivered.
Baxter Mountain Gold Mining Company v . Patte rson . (Docket No. 1363.) Error to the Supreme Court of the Territory of New-Mexico. March 28, 1887 : Docketed and dismissed, with costs, on motion of Mr. Henry Wise Garnett for defendants in error. May 2, 1887: On motion to reinstate. Mr. J. H. Hoffecker, Jr., for the motion. No one opposing. Mr . Chief Justic e Waite : This motion is granted on payment of the costs of the motion to docket and dismiss, and of this motion.
Brunet v . Clement . (Docket No. 171.) Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. March 30, 1887 : Dismissed pursuant to the 10th Rule. Mr. J. P. Hornor and Mr. Charles Louque for appellant.
Bush v . United Stat es . (Docket No. 1221.) Error to the Circuit Court of the United States for the District of Massachusetts. April 4, 1887: Authority of the plaintiff in error to dismiss this cause having been filed, it is, on motion of Mr. Assistant Attorney General Maury, dismissed. Mr. W. A. Munroe for plaintiff in error.
Continental Insurance Comp any v . Johnson . (Docket No. 979.) Error to the Circuit Court of the United States for the Eastern District of Louisiana. April 4, 1887: Dismissed pursuant to stipulation on file, on motion of Mr. Charles W. Hornor. Mr. O. B. Sansum for plaintiff in error. Mr. W. I. Benedict and Mr. Charles W. Hornor for defendant in error.
Poage v. Mc Gowan . (Docket No. 185.) Appeal from the Circuit Court of the United States for the Southern District of Ohio. April 4, 1887: Dismissed pursuant to the 10th Rule. Mr. L. M. Hosea for appellant. Mr. Arthur Stern for appellees.
Manny v . Oyler . (Docket No. 190.) Appeal from the Circuit Court of the United States for the Eastern District of Missouri. April 6, 1887: Dismissed pursuant to stipulation on file. Mr. H. M. Pollard for appellant, and Mr. L. L. Bond for appellee.
vol . cxxn—41
Manny v -. St . Louis Malleable Iron Company . (Docket No. 191.) Appeal from the Circuit Court of the United States for the Eastern District of Missouri. April 6, 1887: Dismissed pursuant to stipulation on file. Mr. H. M. Pollard for appellants. Mr. L. L. Bond for appellees.
Manny v . Furst and Bradle y Manufacturing Comp any . (Docket No. 192.) Appeal from the Circuit Court of the United States for the Eastern District of Missouri. April 6, 1887: Dismissed pursuant to stipulation on file. Mr. H. M. Pollard for appellants. Mr. L. L. Bond for appellees.
Gauthier v . Cole . (Docket No. 193.) Error to the Circuit Court of the United States for the Eastern District of Michigan. April 6, 1887: Dismissed pursuant to stipulation on file. Mr. C. E. Warner for plaintiff in error. Mr. Ashley Pond for defendants in error.
Pile v . Wilson . (Docket No. 195.) Error to the Circuit Court of the United States for the Western District of Pennsylvania. April 7, 1887: Affirmed, with costs and interest. Mr. G. A. Endlich for plaintiff in error. Mr. H. W. Weir and Mr. W. H. Rappel for defendant in error.
Post v . Carr . (Docket No. 198.) Appeal from the Circuit Court of the United States for the Eastern District of Texas. April 7, 1887: Dismissed on motion of Mr. James Lowndes pursuant to the 16th Rule of this court. Mr. T. N. Wall for appeL lants.
Firs t Nati onal Bank of Washington Court House v . Cont i-nental Life Insurance Comp any . (Docket No. 202.) Appeal from the Circuit Court of the United States for the Southern District of Ohio. April 7, 1887 : Dismissed pursuant to the 10th Rule. Mr. M. J. Williams for appellants.
Bullock v . Farw ell . (Docket No. 176.) Appeal from the Supreme Court of the Territory of Dakota. April 11, 1887: Affirmed by a divided court. Mr. Wm. R. Steele and Mr. Daniel p. 643McLaughlin for appellants. Mr. Attorney General, Mr. J. W. Lewis, and Mr. R. A. Burton for appellee.
New v. Barber . (Docket No. 223.) Appeal from the Circuit Court of the United States for the Southern District of New York. April 14, 1887 : Dismissed pursuant to the 10th Rule of this court. Mr. A. H. Evans for appellant. Mr. W. Niles for appellee.
Memphis and Little Rock Railroa d (as reorganized) v. Smi th . (Docket No. 224.) Error to the Circuit Court of the United States for the Western District of Tennessee. April 14, 1887 : Dismissed pursuant to stipulation on file. Mr. U. M. Rose for plaintiff in error. Mr. Luke U. Wright for defendant in error.
Morris on v . Mc Coy . (Docket No. 225.) Error to the Supreme Court of the State of California. April 14, 1887: Dismissed pursuant to the 10th Rule of this court. Mr. James A. Johnson for plaintiff in error. Mr. W. Drummond and Mr. R. H. Bradford for defendant in error.
United States , ex rel . William W. Warden v . William E. Chandler , Secretary of the Navy. (Docket No. 218.) Error to the Supreme Court of the District of Columbia. April 18, 1887. Mr. W. W. Warden in person. No one opposing. Mr . Chief Justi ce Waite : This is a writ of error for the review of a judgment of the Supreme Court of the District of Columbia refusing a mandamus against William E. Chandler, Secretary of the Navy, to require of him the performance of certain alleged official duties. Mr. Chandler is no longer Secretary, and the office is now filled by his successor. The suit has therefore abated, and it is dismissed on the authority of United States v. Boutwell, 17 Wall. 609.
i
Webster Electr ic Comp any v . Odell . (Docket No. 236.) Appeal from the Circuit Court of the United States for the Northern District of Illinois. April 20, 1887 : Dismissed pursuant to stipulation on file. Mr. Geo. P. Barton for appellant. Mr. James L. High for appellee.
Eagle Lock Comp any v . Andres s . (Docket No. 240.) Error to the Circuit Court of the United States for the Northern District of Ohio. April 20, 1887: Dismissed pursuant to the 10th Rule. Mr. E. W. Laird for plaintiff in error. No one opposing.
Palm er v . Gatling Gun Comp any . (Docket No. 246.) Appeal from the Circuit Court of the United States for the District of Connecticut. April 21, 1887 : Dismissed pursuant to the 10th Rule. Mr. R. C. Daniel for appellant. Mr. Wm. E. Simonds for appellee.
Morris on v . Withers . (Docket No. 248.) Appeal from the Circuit Court of the United States for the Southern District of Mississippi. April 21, 1887: Dismissed pursuant to the 10th Rule. Mr. J. Z. George for appellants. Mr. M. F. Morris for appellees.
Hukill Mini ng Compa ny v . Ells worth . (Docket No. 249.) Appeal from the Circuit Court of the United States for the District of Colorado. April 21, 1887: Dismissed pursuant to the 10th Rule. Mr. C. J. Hillyer for appellant. Mr. E. O. Wolcott for appellee.
Union Metallic Cartridge Compa ny v . Unite d States Car - tridge Company . (Docket No. 256.) Appeal from the Circuit Court of the United States for the District of Massachusetts. April 22, 1887 : Dismissed pursuant to the 10th Rule of this court. Mr. Causten Browne for appellant. No one opposing.
Wells v . Parker . (Docket No. 1052.) Appeal from the Circuit Court of the United States for the Northern District of Ohio. April 25, 1887: Dismissed pursuant to authority of appellant on file, on motion of Mr. W. Hallett Phillips in behalf of counsel. Mr. Henry Newbegin of counsel for appellant.
Seeligson v. Texas Trans porta tion Company . (Docket No. 851.) Appeal from the Circuit Court of the United States for the Eastern District of Texas. April 25, 1887: Dismissed on motion of Mr. Wm. E. Earle for appellant. No one opposing.
Newark Machine Comp any v . Hargett . (Docket No. 1381.) Appeal from the Circuit Court of the United States for the District of Maryland. April 25J, 1887 : Docketed and dismissed, with costs, on motion of Mr. Samuel Shellabarger for appellees.
First National Bank of Cobles kill v . Wabas h , St . Louis and Pacif ic Railw ay . (Docket No . 1281.) Appeal from the Circuit Court of the United States for the District of Indiana. April 27, 1887: Dismissed pursuant to stipulation on file. Mr. J. E. McDonald and Mr. M. Butler for appellants. Mr. Wager Swayne, Mr. Wm. Allen Butler, and Mr. Wells H. Blodgett representing other parties in interest.
Detroi t City Railway v . Detroit . (Docket No. 291.) Appeal from the Circuit Court of the United States for the Eastern District of Michigan. April 29, 1887 : Dismissed on motion of William A. McKenney, in behalf of counsel; clerk’s costs in this court to be paid by the appellant.
Daup hin v . Times Publis hing Comp any . (Docket No. 294.) Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. April 29, 1887: Dismissed pursuant to authority of plaintiff in error on file, on motion of Mr. William A. McKenney in behalf of counsel. Mr. B. F. Fisher, Mr. C. W. Moulton, and Mr. Jeff Chandler for plaintiff in error. Mr. R. E. Shapley for defendant in error.
Louisvi lle and Nashvi lle Railroad Co . v . Duffy . (Docket No. 637.) Error to the Circuit Court of the United States for the Middle District of Alabama. April 29, 1887 : Dismissed on motion of Mr. William A. McKenney in behalf of counsel for plaintiff in error. Mr. T. G. Jones and Mr. Russell Houston for plaintiff in error.
Blue Ridg e v . St . John . (Docket No. 760.) Error to the Circuit Court of the United States for the Southern District of Illinois. April 29, 1887: Dismissed on motion of Mr. William A. McKenney in behalf of counsel for the plaintiff in error. Mr. John McNulta for plaintiff in error, Mt. T. C. Mather for defendant in error.
Gates v . Boston and New York Air Line Railroad . (Docket No. 1097.) Error to the Supreme Court of Errors of the State of Connecticut. April 29, 1887. On motion of Mr. William A. McKenney in behalf of counsel. Dismissed pursuant to stipulation on file. Mr. W. W. McFarland of counsel for plaintiff in error. Mr. Simeon E. Baldwin for defendant in error.
Moline Wagon Compa ny v . Aram . (Docket No. 1213.) Appeal from the Circuit Court of the United States for the Northern District of Illinois. Dismissed pursuant to authority of appellant on file, on motion of Mr. William A. McKenney in behalf of counsel. Mr. L. L. Cobum for appellant.
Lees v . Fowle r . (Docket No. 174.) Appeal from the Circuit Court of the United States for the Northern District of Illinois. May 2?* 1887: Affirmed by a divided court. Mr. M. W. Fuller for appellants. Mr. Geo. F. Edmunds and Mr. W. R. Page for appellee. ________
Saloy v. Bloch . (Docket No. 1019.) Error to the Circuit Court of the United States for the Eastern District of Louisiana. Motions to dismiss or affirm. Mr. C. W. Homor and Mr. W. S. Benedict for the motion. Mr. E. H. McCaleb opposing. May 2, 1887. Mr . Chief Justic e Waite : Each of these motions is denied. The amount in dispute is:
1. The judgment in favor of Bloch, Less the judgment in favor of defendant,
2. The amount of the claim in reconvention :
$6017.00
1. For rent,
350.00
2. For rice seed,
312.50
Less allowed in judgment,
$9554.50
In all,
The questions involved are too important for consideration on a motion to affirm.
$3812.50
312.50
$3500.00
$6367.00
$6054.50
Powe ll v . Pennsylvania . (Docket No. 1359.) In error to the Supreme Court of the State of Pennsylvania. Motion to dismiss or to affirm. Jfr. Wayne MacVeagh for the motions. Mr. D. T. Watson opposing. May 2, 1887. Mr . Chief Justic e Waite : Each of these motions is denied.
Unite d State s v . Whit e . (Docket No. 274.) Appeal from the Circuit Court of the United States for the District of California. May 2, 1887: On consideration of the transcript of the record, it not appearing to the court that the amount in controversy exceeds the sum of $5000, the cause is dismissed for the want of jurisdiction, and remanded to the Circuit Court of the United States for the Northern District of California. Mr. Solicitor General for appellant. Mr. J. K. Redington for appellee.
Harwood v . Dickerhoff . (Docket No. 587.) Appeal from the Circuit Court of the United States for the Northern District of Florida. May 3, 1887: Dismissed pursuant to stipulation on file, on motion of Mr. Henry Jackson for appellants. Mr. Charles J. Babbitt for appellees.
Union Pacific Railroa d v . Brew er . (Docket No. 1012.) Error to the Supreme Court of the State of New York. May 4, 1887 : Dismissed pursuant to a stipulation on file, on motion of Mr. Edward F. Bullard in behalf of counsel. Mr. John F. Dillon for plaintiff in error.
Strong v . Dist rict of Columbia . (Docket No. 833.) Error to the Supreme Court of the District of Columbia. May 5, 1887: Dismissed pursuant to authority of plaintiff in error on file, on motion of Mr. 0. D. Barrett for plaintiff in error. No one opposing.
Loui sv ill e and Nashvi lle Railroad v . Hobart . (Docket No. 343.) Error to the Circuit Court of the United States for the Southern District of New York. May 9, 1887: Dismissed pursuant to stipulation on file, on motion of Mr. William A. McKenney in behalf of counsel. Mr. John L. Cadwalader for plaintiff in error. Mr. A. G. Fox for defendant in error.
Faze nde v. Mayor of Houston . (Docket No. 1318.) Error to the Circuit Court of the United States for the Eastern District of Texas. May 9, 1887 : Dismissed pursuant to stipulation on file, on motion of Jfr. William A. McKenney in behalf of counsel. Mr. Farrar and Mr. Kruttschnidt for plaintiffs in error. Mr. T. N. Waul and Mr. C. Anson Jones for defendants in error.
Fazende v . Mayor of Houston . (Docket No. 1319.) Error to the Circuit Court of the United States for the Eastern District of Texas. May 9, 1887 : Dismissed pursuant to stipulation on file, on motion of Mr. William A. McKenney in behalf of counsel. Mr. Farrar and Mr. Kruttschnidt for plaintiffs in error. Mr. T. N. Waul and Mr. C. Anson Jones for defendant in error.
Brow n v . Mc Connell . (Docket No. 1394.) Appeal from the Supreme Court of Washington Territory. May 23, 1887 : Docketed and dismissed, with costs, on motion of Mr. Attorney General for appellee.
La Rue v . Winter . (Docket No. 695.) Appeal from the Supreme Court of the Territory of New Mexico. May 23, 1887: Dismissed on motion of Mr. William Penn Clark in behalf of counsel for appellants. Mr. 0. D. Barrett for appellants. Mr. H. P. Bennet for appellee.
Evans ville v . Portland Savings Bank . (Docket No. 932.) Error to the Circuit Court of the United States for the District of Indiana. May 23, 1887 : Dismissed pursuant to stipulation on file, on motion of Mr. William A. McKenney in behalf of counsel. Mr. John M. Butler for plaintiff in error. Mr. T. B. Reed and Mr. T. H. Haskell for defendant in error.
Hew et t v . Western Union Telegraph Company . (Docket No. 1395.) Appeal from the Supreme Court of the District of Columbia. May 23, 1887: Docketed and dismissed on motion of Mr. J. Hubley Ashton for appellees.
Birth v . Birth . (Docket No. 1157.) Appeal from the Supreme Court of the District of Columbia. May 23, 1887 : Dismissed p. 649on motion of Mr. W. H. Smith of counsel for appellants. Mr. William A. Coulter also for appellants. No one opposing.
Ex parte: In the matter of George K. Grove . Motion for leave to file petition for a writ of mandamus. May 27, 1887: Petition denied. Mr. Solicitor General for petitioner.
Centra l Railroad and Banking Comp any of Georg ia v . Mc Kenzie . (Docket No. 300.) Error to the Circuit Court of the United States for the Middle District of Alabama. May 27, 1887 : affirmed by a divided court. Mr. A. R. Lawton, Mr. J. D. Roquemore, and Mr. M. F. Morris for plaintiff in error. Mr. G. L. Comer for defendant in error.
Commi ss ioners of Grant County v . Kim ball . (Docket No. 520.) Appeal from the Circuit Court of the United States for the District Of Indiana. May 27, 1887: Dismissed pursuant to authority of appellants on file, on motion of Mr. W. Hallett Phillips in behalf of counsel. Mr. Benjamin Harrison and Mr. W. H. H. Miller for appellants.
Camden v . Mayhew . (Docket No. 650.) Appeal from the Circuit Court of the United States for the District of West Virginia. Motion by appellants to dismiss the appeal in part and to vacate correspondingly the supersedeas. May 27, 1887: Mr . Chief Jus - tice Waite : This motion is granted, and an order may be entered accordingly. Mr. J. E. Kenna and Mr. Attorney General for appellants. No one opposing.
Coghl an v. South Carolina Rail road . (Docket No. 1089.) Appeal from the Circuit Court of the United States for the District of South Carolina. May 27, 1887 : Dismissed on motion of Mr. W. Hallett Phillips in behalf of counsel for appellants. Mr. F. W. Whitridge, Mr. H. E. Young, and Mr. James Lowndes for appellants.
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II.
CASES DISMISSED IN VACATION,
PURSUANT TO RULE 28,
BETWEEN THE FINAL ADJOURNMENT AT OCTOBER TERM,
1885, AND THE COMMENCEMENT OF OCTOBER TERM, 1886.
Penns ylva nia Comp any v . Ferguson . (Docket No. 478.) Error to the Circuit Court of the United States for the District of Indiana. June 14, 1886 : Dismissed pursuant to the 28th Rule. Jfr. N. Stansifer ton plaintiff in error. Mr. J. E. McDonald for defendant in error.
Call v . Northw est ern Mutual Life Insurance Co . (Docket No. 178.) Appeal from the Circuit Court of the United States for the Southern District of Iowa. June 19, 1886 : Dismissed pursuant to the 28th Rule. Mr. John H. Call for appellant. Mr. C. C. Nourse and Mr. B. F. Kauffman for appellee.
Call v . Northw est ern Mutual Life Insu ran ce Co . (Docket No. 179.) Appeal from the Circuit Court of the United States for the Southern District of Iowa. June 19, 1886 : Dismissed pursuant to the 28th Rule. Mr. John H. Call for appellant. Mr. C. C. Nourse and Mr. B. F. Kauffman for appellee.
Westham Granite Co . v . Chandler . (Docket No. 570.) Appeal from the Supreme Court of the District of Columbia. June 19, 1886 : Dismissed pursuant to the 28th Rule. Mr. M. F. Morris and Mr. Wm. John Miller for appellants. Mr. F. W. Jones and J. Holdsworth Gordon for appellees.
Loui sian a , ex rel . The New Orleans Gas Ligh t Co . v . New Orleans . (Docket No. 533.) Error to the Supreme Court of Louisiana. June 22, 1886 : Dismissed pursuant to the 28th Rule. p. 652Mr. Thomas J. Semmes for plaintiff in error. Mr. W. H. Rogers and Mr. Henry C. Miller for defendants in error.
Thebera th v. Rubber and Cellulo id Harne ss Trimm ing Co . (Docket No. 108.) Appeal from the Circuit Court of the United States for the District of New Jersey. July 10, 1886: Dismissed pursuant to the 28th Rule. Mr. Phillip W. Cross for appellant. Mr. J. C. Clayton for appellee.
St . Louis Iron Mountain and Southern Railw ay v . Sout her n Express Co . (Docket No. 315.) Appeal from the Circuit Court of the United States for the Western District of Tennessee. July 13, 1886 : Dismissed pursuant to the 28th Rule. Mr. R. J. Morgan for appellant. Mr. Geo. Gillham for appellee.
Demps ey v . Mani ste e River Impr ovement Co . (Docket No. 312.) Error to the Supreme Court of Michigan. July 22, 1886: Dismissed pursuant to the 28th Rule. Mr. M. J. Smiley for plaintiffs in error. Mr. Benton Hanchett for defendant in error.
Allen v . Hickl ing . (Docket No. 726.) Error to the Circuit Court of the United States for the Northern District of Illinois. August 6, 1886 : Dismissed pursuant to the 28th Rule. Mr. L. H. Bisbee, Mr. John P. Ahrens, and Mr. Henry Decher for plaintiff in error. Mr. Lyman Trumbull for defendant in error.
The Steam Tug E. Lucken back v . Beard . (Docket No. 355.) Appeal from the Circuit Court of the United States for the Eastern District of New York. September 15, 1886: Dismissed pursuant to the 25th Rule. Mr. William Allen ‘Butler, Mr. T. E. Stillman, and Mr. T. H. Hubbard for appellants. Mr. W. W. Goodrich for appellees.
Kehlor Milli ng Compa ny v . John T. Note Manufact uring Company . (Docket No. 407.) Error to the Circuit Court of the United States for the Southern District of Illinois. October 4, 1886: Dismissed pursuant to the 28th Rule. Mr. G. M. Stewart for plaintiff in error. Mr. Azel F. Hatch for defendant in error.
Curry v . Mc Cauley . (Docket No. 301.) Appeal from the Circuit Court of the United States for the Western District of Penneylvania. October 8, 1886 : Dismissed pursuant to the 28th Rule. Mr. Geo. Shiras, Jr., for appellant. Mr. A. H. Clarke for appellees.
New York Belting and Packin g Comp any v . Sible y . (Docket No. 109.) Appeal from the Circuit Court of the United States for the District of Massachusetts. October 9, 1886 : Dismissed pursuant to the 28th Rule. Mr. Thomas H. Talbot for appellants. Mr. Frederick P. Fish for appellee.
The following is a summary statement of the business of the Supreme Court of the United States for the October Term, 1886, which closed on May 27.
Number of cases on the docket at the close of the October Term, 1885, not disposed of, 900; number of cases docketed during October Term, 1886, 496; total, 1,396. Number of cases disposed of at the term just closed, 451; number of cases remaining undisposed of, 945. Number of cases continued under advisement from October Term, 1885, 11; argued orally, 213; submitted, 119; continued, 29; passed, 7.
Number of cases affirmed, 205; reversed, 95; dismissed, 47; cases in which questions were answered, 5; docketed and dismissed, 15; settled and dismissed by the parties, 84; total, 451.
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III.
ASSIGNMENTS TO CIRCUITS FOR 1887.
Mr . Justic e Gray : 1st Circuit, Rhode Island, Massachusetts, New Hampshire, and Maine.
Mr . Justi ce Blatchf ord : 2d Circuit, Vermont, Connecticut, and New York.
Mr . Justic e Bradley : 3d Circuit, Pennsylvania, New Jersey, and Delaware.
Mr . Chief Just ice Waite : 4th Circuit, Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
Mr . Justic e Harlan : 5th Circuit, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.1
Mr . Justi ce Matthe ws : 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.
Mr . Justi ce Harlan : 7th Circuit, Indiana, Illinois, and Wisconsin.
Mr . Justi ce Mill er : 8th Circuit, Nebraska, Minnesota, Iowa, Missouri, Kansas, and Arkansas.
Mr . Justic e Field : 9th Circuit, California, Oregon, and Nevada.
1 May 27, 1887, The Chief Justi ce announced an order assigning Mr . Justice Harlan to the 5th circuit, made vacant by the death of Mr. Jus - tice Woo ds , in addition to his assignment to the 7th circuit, to which he was already assigned.