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Vol. IV.)

NOTES OF Opinions, DECISIONS, AND ORDERS.

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court.

state equality. The power to make treaties with the Indian tribes, it is said, is coextensive with the power to make treaties with foreign nations.

No. 53. Michael O'Hara et al., appellants, v. John G. Mac Connell et al., assignees. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Mr. Justice Miller delivered the opinion of the court, reversing the original decree of the said circuit court, with costs, and remanding the cause for further proceedings in accordance with law and justice.

In this case the court reversed the decree below, holding that it was the duty of the court, when the bill on its face showed that the party whose interest was the principal one to be affected by the decree was botḥ a minor and a femme couvert, and that no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to defend her interest, it was the more imperative that the court should have appointed some one to do so; also, that if Mrs. O'Hara had been under no disabilities, it was error to have taken the bill for confessed, for want of appearance on the return day of the writ.

No. 43. Samuel J. Sherman, plaintiff in error, v. D. S. D. Buick. In error to the Supreme Court of the State of California. Mr. Justice Miller delivered the opinion of the court, reversing the judgment of the said supreme court, with costs, and remanding the cause with instructions to order a new trial, in conformity with the opinion of this

In this case the court reversed a judgment below sustaining the claim of the defendant to land in California, under a patent from the state, and upholds a patent from the United States to the plaintiff for such lands, holding that the state patent was issued without authority; as the grant from the United States to the state provided that when the grant covered lands which had been taken up by private parties the state should select other lands in lieu thereof, and finding that the plaintiff had settled upon the lands and ever since remained in possession. Mr. Justice Field did not sit in this cause, and took no part in its decision.

No. 297. Charles Kerrison, assignee, 8c. appellant, v. A. T. Stewart & Co. Appeal from the Circuit Court of the United States for the District of South Carolina. Mr. Chief Justice Waite delivered the opinion of the court, affirming the decree of the said circuit court, with costs.

In this cause the rule is announced that under some circumstances a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he holds will be bound by what is done against him, as well as by what is done by him. The difficulty lies in ascertaining whether he occupies such a position, not in determining its effect if he does. If he has been made such a representative, it is well settled that his beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust, or to one by a stranger against him to defeat it in whole or in part. In such cases the trustee is in court for and on behalf of the beneficiaries, and they, though not parties, are bound by the judgment unless it is impeached for fraud or collusion between him and the adverse party.

Monday, November 20, 1876. No. 69. The Home Insurance Co., plaintiff in error, v. The Baltimore Warehouse Co. In error to the Circuit Court of the United States for the District of Maryland. Mr. Justice Strong delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest.

In this case it is held that a policy of insurance taken out by warehouse-keepers against loss, &c., on “merchandise, their own or held by them in trust, or in which they have an interest or liability,” contained in a designated warehouse, covers the merchandise itself, and not merely the interest or claim of warehouse-keepers. If the merchandise be destroyed by fire the assured may recover the entire value of the goods not exceeding the sum insured, holding the remainder of the amount, after satisfying their own loss, as trustees for the owners. In such a case, where the warehousemen and the depositors take out policies covering the same goods, the second policies constitute double insurance, and they bear a loss proportionately. In a case of contributing policies, adjustment of loss made by an expert may be submitted to the jury, not as evidence of the facts therein or as obligatory, but for the purpose of assisting the jury

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Notes OF OPINIONS, Decisions, AND ORDERS.

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in calculating the amount of liability of the insurer upon the several hypotheses of facts maintained in the adjustments if they find either hypothesis correct. No part of a letter written as an offer of compromise is admissible in evidence.

No. 652. Charles Morgan, plaintiff in error, v. The State of Louisiana. In error to the Supreme Court of the State of Louisiana. Mr. Justice Field delivered the opinion of the court, atlirming the judgment of the said supreme court, with costs.

The plaintiff in error claimed that certain property of the New Orleans, Opelousas & Great Western Railroad Company, which had come into his hands by purchase at a mortgage sale and at a sheriff's sale, was exempt from taxation as his property, because it was exempt by law while the property of the company. The court hold that only a francbise of a railroad company, which is defined as a right or privilege essential to the operations of the corporation, — such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like, may be conveyed to a purchaser of the road as part of the property of the company; that immunity from taxation is not one of these positive rights or privileges essential to the working of the road, but is personal in its character and incapable of transfer without express statutory direction.

No. 75. James Hendricks, plaintiff in error, v. A. G. Lindsay et al. In error to the Circuit Court of the United States for the Northern District of New York. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. This cause involved only questions of fact.

No. 88. Alfred E. and Chas. E. Tilton, appellants, v. Jos. B. Cofield et al. Appeal from the supreme court of the Territory of Colorado. Mr. Justice Swayne delivered the opinion of the court, reversing the decree of the said supreme court, with costs, and remanding the cause with directions to dismiss the bill. In this cause the court rules that the facts do not show such fraud as to sustain the bill.

No. 47. The Steamboat Atlas, 8c. appellants, v. The Phenix Insurance Co. Appeal from the Circuit Court of the United States for the Eastern District of New York. Mr. Justice Clifford delivered the opinion of the court, reversing the decree of the said circuit court, with costs, and remanding the cause with directions to reverse the decree of the district court, and to enter a new decree in favor of the libellants for the entire damages ascertained by the commissioner.

It appeared from the record in this cause that the libellants became the insurers of the cargo of the canal-boat named in the libel, consisting of linseed, in the sum of fourteen thousand five hundred dollars, for a voyage from the port of New York to the port of New Brunswick, in the State of New Jersey; that the canal-boat, with her cargo on board, was taken in tow at the port of departure by the steam-tug called The Kate; that the steam-tug with her tow, including the canal-boat and two other vessels, proceeded in safety to New Brighton, where the whole flotilla remained until the next morning, when they started for the port of destination, the steam-tug heading northwest-by-north, and taking her course across the kills directly for Port Johnson, on the Jersey shore; that the steam-tug with the canal-boat and the two other vessels in tow kept that course until she was within one hundred and fifty yards of the shore, when the master, being then in the pilot-house, heard the whistle of a steamboat about one tenth of a mile distant; that it was a single blast, being the signal that the respective boats as they approached should pass to port; that the master of the steam-tug having the canal-boat in tow answered the signal by blowing his whistle twice, which is the proper signal that the boats should pass to starboard, it being unsafe for him, owing to the state of the tide and the conformation of the adjacent shore, to attempt to pass the approaching vessel on the port side; that the signal given was the proper one; and the charge is that the master of the steam-tug immediately starboarded his helm and that the approaching vessel, which proved to be the steam-tug The Atlas, within a minute ran into the steam-tug having the canal-boat in tow, with great force and violence, staving her in from her plank-shear to the third plank below her water line, which caused the steam-tug and canal-boat she had in tow to sink, whereby the cargo of the canal-boat became a total loss. It was decreed below that the libellants should recover one half the damages. This decree is here reversed, the court holding that the decree should have been for the entire amount of damages as ascertained by the master.

No. 122. H. W. Shacker, plaintiff in error, v. The Hartford Fire Insurance Co. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in this cause for the want of jurisdiction.

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No. 103. Geo. M. Wheeler, plaintiff in error, v. John Sergwick, assignee, 8c. In error to the Circuit Court of the United States for the Southern District of New York. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgment of the said circuit court, with costs.

No. 89. Frank H. Fisher, appellant, v. R. R. &. Jos. Craig. Mr. Chief Justice Waite announced the decision of the court, continuing this cause and ordering it for reargument at the next term.

No. 933 of '75. The Selma & Meridian Railroad Co., appellant, v. The Louisiana National Bank of New Orleans. Mr. Chief Justice Waite announced the decision of the court, denying the motion to rescind the other docketing and dismissing this cause, and for leave to docket same, the appellant having failed to comply with the established rules of practice of the court.

Monday, November 27, 1876. No. 86. Henry A. Grant, collector, &c. plaintif in error, v. The Hartford f New Haren Railroad Co. In error to the Circuit Court of the United States for the District of Connecticut. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of the said circuit court, with costs.

In this case the court holds that the expression, “ profits used in construction,” within the meaning of the one hundred and twenty-second section of the Internal Revenue Act, does not embrace earnings expended in repairs for keeping the property up to its normal condition, but has reference to new constructions adding to the permanent value of the capital, and when these are made to take the place of prior structures, it includes only the increased value of the new over the old when in good repair.

No. 76. The President, fc. of the Bank of Kentucky, plaintiffs in error, v. The Adams Express Co.; No. 77. The Planters' National Bank of Louisville, plaintiffs in error, v. The Adams Express Co. In error to the Circuit Court of the United States for the District of Kentucky. Mr. Justice Strong delivered the opinion of the court, reversing the judgment of the said circuit court, with costs, and remanding the causes with directions to award venire facias de noro.

In these cases the court holds that the restriction in the bill of lading of the express company, providing that the company should not be liable for any loss, damage, or detention of a money package, occasioned by fire, does not protect the company against liability where the loss is the consequence of the negligence of carriers or their servants or agents, and, therefore, that the company is responsible for losses in such cases by fire caused by the negligence of the railroad companies employed by it in the transportation of the package. The railroad company, it is said, in transporting the messenger of the express company, and the express matter in his charge, is the agent of the express company, employed and paid by it; the service performed is the service of the express company, -a duty incumbent upon the express company and upon no one else. If any one is to be affected by the acts or omissions of persons employed to do a particular service, it must be the one who gave the employment.

No. 63. John S. Shaw, appellant, v. The United States. Appeal from the Court of Claims. Mr. Justice Field delivered the opinion of the court, affirming the judgment of the said court of claims in this cause. Mr. Justice Strong took no part in the decision of this case. Dissenting, Mr. Justice Miller.

This was an action to recover for the loss of a vessel while in government service, the claim being that it had been impressed. It is held that, whatever the force or coercion may have been which attended the original entry of the vessel into the service, the transaction ultimately ended in a contract of affreightment upon the terms stated by the assistant quartermaster ; and that, as charterers of the vessel under such a contract, the United States are not liable to the claimant for its loss, and of course could not be to the insurance companies which were subrogated to his rights.

No. 91. The Mutual Life Insurance Co. of New York, plaintiff in error. v. Anna M. Snyder; No. 92. The Mutual Life Insurance Co. of New York, plaintiff in error, v. Lewis W. Snyder. In error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Mr. Justice Davis delivered the opinion of the court, atlirming the judgments of the said circuit court in these causes, with costs and interest.

In these cases the insured, when asked how long since he was attended by a physician, answered, “Not for twenty years,” when in fact he had recently fallen and sustained an injury for which he had been attended by a physician, as shown upon the trial. But, except as to this occasion, he had not been attended. The court instructed the jury that

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if he was seriously hurt by the fall there could be no recovery. The verdict was for the insured, as there was no exception to this instruction. The judgment is affirmed, the court remarking that the chances of defeating the action were increased by it instead of lessened.

No. 87. Charles W. Hornor, plaintiff in error, v. George C. Henning et al. In error to the Supreme Court of the District of Columbia. Mr. Justice Miller delivered the opinion of the court, affirming the judgment of the said supreme court, with costs.

In this case it is held that the act of Congress making the trustees of corporations liable to the creditors of the corporation personally where they knowingly assent to an increase of its indebtedness beyond the amount of its capital stock, was intended to make the trustees liable as for a breach of trust, and that this liability constitutes a fund for the benefit of all the creditors in proportion to the amount of their debts, so far as necessary to pay them, and that, therefore, one creditor cannot be allowed to sue on his claim to the exclusion of others.

No. 93. Stephen Talty, plaintiff in error, v. The Freedman's Savings & Trust Co. In error to the Supreme Court of the District of Columbia. Mr. Justice Swayne delivered the opinion of the court, affirming the judgment of the said supreme court in this cause, with costs. This cause involved a question arising under the laws of the District of Columbia, of local interest only.

No. 94. Wm. H. Whiteside et. al., appellants, v. The United States. Appeal from the Court of Claims. Mr. Justice Clifford delivered the opinion of the court, affirming the judgment of the said court of claims in this cause. This case arose under the Captured and Abandoned Property Act. The court of claims found that the seizure was made by an unauthorized agent, and this court affirins the judgment below.

No. 58. The Town of South Ottawa, plaintiff in error, v. Noah C. Perkins ; No. 59. The Board of Supervisors of Kendall County, plaintiff in error, v. Augustus T. Post. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgments of the said circuit court in these causes, with costs and interest.

In these cases the court affirm the validity of certain municipal bonds issued in aid of certain railroad companies, and also affirm the ruling below, by which the corporations which had issued their bonds under a certain act were denied the right to offer evidence to show that the law had never in fact been passed. The chief justice delivered the opinion, holding that such a corporation, having issued its bonds and put them on the market as commercial paper upon the faith of a certain law, cannot be permitted to show, as against a bonâ fide holder of the bonds, that the law was never enacted; and adds that as the courts of Illinois have never decided the question directly, this court is left free to answer it. Dissenting, Justices Bradley, Miller, Davis, and Field.

No. 11 (original). Ex parte John Henderson, petitioner; No. 12. Ex parte Otto H. Karstendick, petitioner. Mr. Chief Justice Waite delivered the opinion of the court, denying the petitions for habeas corpus in these causes. In these motions for habeas corpus, seeking to take the applicants out of prison in West Virginia, on the ground that they were convicted in Louisiana, and that West Virginia had never consented to the use of her prisons for the confinement of federal prisoners, writs are denied, the court holding that neither position is tenable. The parties were convicted of a conspiracy to defraud the government of the tax on whiskey.

No. 417. John L. Davies, plaintiff in error, v. Alfred Slidell et al.; No. 435. F. Huppenbauer, plaintiff in error, v. Alfred Slidell et al.; No. 668. Josephine Hale Ames, wife, &c. plaintiff in error, v. Heirs of John Slidell, deceased ; No. 669. Josephine Hale Ames, wife, g'c. plaintiff in error, v. Heirs of John Slidell, deceased. In error to the Supreme Court of the State of Louisiana. Mr. Chief Justice Waite announced the decision of the court, affirming the judgments of the said supreme court, upon the authority of Bigelow v. Forest, 9 Wall. 339, and other cases.

No. 791. H. H. Easterling et al., plaintiffs in error, v. The State of South Carolina, ex rel. C. E. Lartigue. In error to the Supreme Court of the State of South Carolina. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said supreme court in this cause, with costs.

No. 560. John H. Martin, plaintiff" in error, v. The Hazard Powder Company. Mr. Chief Justice Waite announced the decision of the court, denying the motion to dismiss, upon the authority of Jerome v. McCarter, 21 Wall. 17.

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Vol. IV.]

Notes of OPINIONS, DECISIONS, AND ORDERS.

(No. 1.

Monday, December 4, 1876. No. 70. The County of Callaway, State of Missouri, plaintiff in error, v. Thomas J. Foster. In error to the Circuit Court of the United States for the Western District of Missouri. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court in this cause, with costs and interest. In this case the court find that where the county has issued bonds in aid of a railway built upon the route selected by the county, and has paid the interest and a portion of the principal thereof, it is estopped to deny the validity of the bonds. Also, that where such a subscription is legally made it is immaterial that the bonds were issued at a later date than the subscription. Justices Miller, Davis, Field, and Bradley dissented as to construction of the act under which the bonds were issued.

No. 81. John M. Barclay, plaintiff in error, v. The Board of Leree Commissioners, Parishes of Madison and Carroll. In error to the Circuit Court of the United States for the District of Louisiana. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. In this case it is held that a corporation created for municipal purposes, being superseded by new and different corporations created for accomplishing the same purposes, ceases to exist, except so far as its existence is expressly continued for special objects, such as settling up its indebtedness, and the like. In such cases, if no provision is made for the continuance or new election of the officers of the corporation, the functions of the existing officers will cease when their respective terms expire, and the corporation will be de facto extinct; and if there be a judgment against the corporation, a mandamus will not lie to enforce the assessment of taxes for its payment, for want of officers upon whom to serve the process. The court cannot compel the new corporation, by mandamus, to perform the duties of the extinct one in such matters, especially where the jurisdiction is not the same and the law has not authorized a levy ; nor can the court order the marshal to levy taxes in these cases, nor in any case, except where the proceeding is authorized by law; another judgment creditor is without remedy and can only apply to the legislature for relief.

No. 106. Moritz Cohn, appellant, v. The United States Corset Company et al. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Justice Strong delivered the opinion of the court, aflirming the decree of the said circuit court, with costs. In this case the court affirms the decree below in favor of the company, holding that the invention claimed by Cohn was anticipated by an English patent; Mr. Justice Clifford, dissenting,

No. 110. Samuel G. Jones, appellant, v. The City of Pensacola ; No. 111. Eduard Broughton, appellant, v. The City of Pensacola. Appeals from the Circuit Court of the United States for the Northern District of Florida. Mr. Justice Field delivered the opinion of the court, affirming the decrees of the said circuit court in these causes, with costs, without prejudice to the plaintiff's right to proceed at law. It is here held that where a municipal corporation is authorized to take stock in a railroad corporation, and issue its obligations in payment, it is to that extent to be deemed a private corporation, and its obligations are secured by all the guarantees which protect the engagements of private individuals. The inhibition of the Constitution, which protects contracts against state interference, applies to the liabilities of municipal corporations created by its permission ; and although the repeal or modification of the charter of a corporation of the kind is not within inhibition, yet it will not be admitted, except when its legislation is susceptible of no other construction that a state has in this way sustained an evasion of, or an escape from, liabilities, the creation of which it authorized; hence, where a new form is given to an old corporation of this sort, or such a corporation is reorganized under a new charter, covering the same territory, embracing substantially the same corporations, it will be presumed that the legislature intended a continued existence of the same corporation, although different powers are given by the new charter, and different officers administer its affairs.

No. 112. Samuel Smith et al., plaintiffs in error, v. Myra Clark Gaines. In error to the Circuit Court of the United States for the District of Louisiana. Mr. Justice Miller delivered the opinion of the court, atlirming the judgment of the said circuit court, with costs and interest. This was the action of Mrs. Myra Clark Gaines to make the sureties of the city of New Orleans responsible for the amount of the judgment against the city. The court hold that under the laws of Louisiana sureties on an appeal bond operating as a supersedeas are liable to judgment against them by a summary proceeding after execu

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