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THE AMERICAN LAW TIMES.

NEW SERIES. — APRIL, 1877. – Vol. IV., No. 4.

NOTES OF OPINIONS, DECISIONS, AND ORDERS

OF THE

SUPREME COURT OF THE UNITED STATES.

DECEMBER TERM, 1876.

Thursday, March 1, 1877. No. 878. S. Heydenfeldt, plaintiff in error, v. The Daney Gold & Silver Mining Co. In error to the Supreme Court of the State of Nevada. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said supreme court, with costs. This was an action of ejectment to recover a specific portion of certain land in Nevada. The land, rich in minerals, was not surveyed by the United States until the year 1867. Prior to the date of the survey, or the approval of it, the defendant's grantors and predecessors in interest had for mining purposes entered upon the land, and claimed and occupied it according to the mining laws and the custom of miners in the locality. This possession and claim of ownership had been continuous and uninterrupted, and the defendant has expended a large amount in the construction of improvements for carrying on the business of mining on the land. The plaintiff claimed title from the state by patent. It was dated the 14th of July, 1868, and was issued on the assumption that the land whether surveyed or unsurveyed, and whether containing minerals or not, was granted to the state for the support of common schools, by the Nevada enabling act, approved March 21, 1864, 13 Stat. 32. This interpretation of that act was denied by the general government, and the defendant received a patent on the 2d of March, 1874, from the United States for the land in controversy, issued in conformity with the laws of Congress on the subject of mining. Which was the better title was the point for decision. The court here rules that the title of the patentee must prevail.

No. 157. R. G. Hervey et al., plaintiffs in error, v. The Rhode Island Locomotive Works ; and No. 158. The Indianapolis, Bloomington & Western Railroad Co., plaintiff in error, v. The Rhode Island Locomotive Works. In error to the circuit court of the United States for the Southern District of Illinois. Mr. Justice Davis delivered the opinion of the court, reversing the judgments of the said circuit court, with costs, and remanding the causes, with instructions to award a venire facias de novo. By stipulation, the judgment in No. 157 is affirmed as to locomotive io Olney No. 1." In these cases it is ruled that, on the authority of Green v. Van Buskirk, 5 Wall. 307; 7 Ib. 137, and other cases, the liability of property to be sold under legal process, issuing from the courts of the state where it is situated, must be determined by the law there rather than that of the jurisdiction where the owner lives; and that the federal courts will adopt and effectuate the constructions of the state courts.

No. 73. John G. Tameling, plaintiff in error, v. The United States Freehold & Emigration Co. In error to the Supreme Court of the Territory of Colorado. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said supreme court, with costs. This case involved a construction of the Act of Congress of June 21, 1860 (12 Stat. 71), to confirm certain private land claims in New Mexico.

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Vol. IV.)

NOTES OF OPINIONS, DecisioNS, AND ORDERS.

No. 170. William Bayne, trustee, 8c., appellant, v. The United States. Appeal from the Circuit Court of the United States for the District of Maryland. Mr. Justice Davis delivered the opinion of the court, affirming the decree of the said circuit court. The United States, March 31, 1866, having moneys on deposit in the First National Bank of Washington, a public depository, gave a draft for $200,000 on that institution in favor of B't Col. Paulding, a paymaster in the army. He deposited it to his credit, as such officer, in that bank, the thirteenth day of the following April. He had no individual account there. On the 21st of the latter month he drew two checks on that bank, each for $100,000, indorsed them in blank, and sent them to the cashier of the Merchants' Bank of Washington, who presented them to the former bank with the information that L. P.Bayne, a member of the firm of Bayne & Co., desired that $100,000 should be deposited to its credit in New York. This was done, and the amount realized by Bayne & Co. One half of the remaining $100,000 was paid in currency to the Merchants' Bank, and a draft on a banking institution in New York given for the residue. It was afterwards transferred by the Citizens' Bank to Bayne & Co. The decree of the circuit court confined the rights of the United States as a preferred creditor to the $100,000 which was deposited to the credit of the firm in New York, and this view is here affirmed.

No. 172. Nathaniel S. Donaldson, assignee, &c., plaintiff in error, v. John V. Farwell et al. In error to the Circuit Court of the United States for the Eastern District of Wisconsin. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. Mann, a merchant doing business at Richfield, a small village on the St. Paul Railway, filed May 24, 1872, his petition, in the district court of the United States for the Eastern District of Wisconsin, to be declared a bankrupt. He was duly adjudged a bankrupt the 6th day of June then next ensuing, and the plaintiff was, on the 1st day of the following July, appointed his assignee. In the month of April of that year the defendants sold, at Chicago, to Mann, on credit, goods and merchandise amounting in value to $5,000. His son was the agent in purchasing them, and directed them to be shipped to Milwaukee, stating that it was his intention to have them hauled from there to Richfield. He knew that his father was then, and for two or three years before had been, insolvent, and he testified that at the time of the purchase he did not expect that his father would pay for the goods, that he did not expect to pay for them himself, and that his object in having them sent to Milwaukee was to place them in the hands of one Schram, in order that they should be there sold and the proceeds paid to some creditors of his father, who had sold him produce and advanced him money. The goods were shipped to “ E. Mann, Milwaukee," conformably to the directions. They were, on their arrival, sent to Schram's store. The last of the invoices bore date April 17. Mann was reputed to be solvent. The defendants had no notice of bis insolvency until the last days of May. On the 5th of June, ascertaining that a large quantity of the goods was in a loft of a store in Milwaukee, they took possession of them. They subsequently found the remaining goods, with the exception of $100 in value, in the store of Mann at Richfield, and, after formally demanding them of the assignee, took and shipped them to Chicago. This action was brought by the assignee to recover the value of the goods, and judgment was had for the defendants, which is here affirmed.

No. 99. Ira G. Munn and George L. Scott, plaintiffs in error, v. The People of the State of Illinois. In error to the Supreme Court of the State of Illinois. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgment of the said supreme court, with costs. Dissenting, Mr. Justice Field. No. 324. The Chicago, Burlington & Quincy Railroad Co., appellant, v. M. E. Cutts, Attorney General, et al. In error to the circuit court of the United States for the District of Iowa. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. Dissentiug, Mr. Justice Field. The decision in these causes, the most important of the “ Granger " cases, will be found in the present issue of the Law Times Reports, to which attention is directed.

No. 27. William F. Peck et al., appellants, v. The Chicago & Northwestern Railway Company el al.; No. 40. De Witt C. Laurence et al., appellants, v. George H. Paul et al. Appeals from the circuit court of the United States for the Western District of Wisconsin. Mr. Chief Justice Waite delivered the opinion of the court, affirming the decrees of the said circuit court, with costs. Dissenting, Mr. Justice Field. These suits presented the single question of the power of the Legislature of the State of Wisconsin to provide by law for a maximum of charge to be made by the Chicago and Northwestern Railroad Company, for fare and freight upon the transportation of persons and

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NOTES OF OPINIONS, DECISIONS, AND ORDERS.

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property carried within the state, or taken up outside and brought within it, or taken up inside and carried out. The decision is, that until Congress acts in reference to the relations of the inter-state commerce, it is competent for the state to regulate the fares of the railroads so far as they are of domestic concern. This company, it is said, has domestic relations with the state, and incidentally these relations may reach beyond the state. Until Congress undertakes to legislate for those who are without the state, Wisconsin may provide for those within, even though it may indirectly affect those without.

No. 352. The Chicago, Milwaukee & St. Paul Railway Company, plaintiff in error, v. H. M. Ackley et al. Mr. Chief Justice Waite delivered the opinion, affirming the judgment of said circuit court, with costs. The only question presented in this case is, whether a railroad company in Wisconsin can recover for the transportation of property more than the maximum fixed by the statute, by showing that the amount charged was no more than a reasonable compensation for the services rendered. The decision is, that as between the company and a freighter the maximum of the statute is the limit of the recovery for transportation actually performed.

No. 353. L. D. Stone, plaintiff in error, v. The State of Wisconsin. In error to the circuit courts of the counties of Milwaukee and Dane, State of Wisconsin. Mr. Chief Justice Waite delivered the opinions of the court, affirming the judgments, with costs. Dissenting, Mr. Justice Field. The only question in this case not decided in the case of the Chicago, Milwaukee 8 St. Paul Railroad Company v. Ackley, No. 352, was as to the effect upon the rights of these parties of the charter of the Milwaukee and Waukesha Railroad Company, passed by the territorial Legislature of Wisconsin in 1847. This provides that .... it shall be lawful for the company to demand and receive such sum or sums of money for passage and freight of persons and property as they shall, from time to time, think reasonable. : ... The court affirm the view of the supreme court of the state on this question, tbat the charter was accepted and the corporation organized many months after the adoption of the Constitution and the admission of the state into the Union by Congress. Previous to that time it remained a naked proposition. For this reason it is held that its acceptance after the organization of the state, so far as it is a contract, makes it manifestly a contract with the state.

No. 10. The Winona 8. St. Peter Railroad Company, plaintiff in error, v. John D. Blake et al. In error to the supreme court of the State of Minnesota; No. 74. Charles McIlrath, receiver, fc., plaintiff in error, v. Charles S. Coleman. In error to the circuit court of the United States for the District of Minnesota. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgments in these causes, with costs and interest. Dissenting, Mr. Justice Field. In the former case it is said that the road was by its charter bound to carry when called upon — as a common carrier - and charge only reasonable rates. These are incidents of the occupation in which it was authorized to engage. The case is held to fall within the decision in No. 99, Munn v. The People. In No. 74 it is held the question is the same, and the decision is affirmed in both cases.

Friday, March 2, 1877. No. 160. H. W. Fuller and J. W. Barnum, appellants, v. E. S. Yentzer and W. Scates ; No. 161. H. W. Fuller and J. W. Barnum, appellants, v. E. S. Yentzer and W. Scates ; and No. 162. H. W. Fuller and J. W. Barnum, appellants, v. Herman B. Goodrich. Appeals from the circuit court of the United States for the Northern District of Illinois. Mr. Justice Clifford delivered the opinions of the court, affirming the decrees of the said circuit court, with costs. Dissenting - Mr. Justice Strong, Mr. Chief Justice Waite, Mr. Justice Miller, and Mr. Justice Bradley. These were patent cases which went off on the question of infringement. The court did not announce any new doctrine.

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Vol. IV.)

Digest Of Cases.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI

ODICALS.

ABBREVIATIONS.

Albany L. J. -- Albany Law Journal, Albany, N. Y., WEED, Parsons & Co.
Am. Law Rec. — American Law Record, Cincinnati, O., H. M. Moos.
Am. Law Reg. — American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co.
Cent. L. J. - Central Law Journal, St. Louis, Mo., SOULE, THOMAS & WENTWORTH.
Chicago L. N.- Chicago Legal News, Chicago, Ill., Chicago LEGAL News Co.
Ins. L. J. - Insurance Law Journal, New York, C. C. HINE, 176 Broadway.
Int. Rev. Rec. Internal Revenue Record, New York, W. P. & F. C. CHURCH.
La. L. J.- Louisiana Law Journal, New Orleans, La.
Leg. Chron. — Legal Chronicle, Pottsville, Pa., Sol. Foster, JR.
Leg. Int. Legal Intelligencer, Philadelphia, Pa., J. M. Power WALLACE.
Mo. West. Jur. — Monthly Western Jurist, Bloomington, Ill., T. F. Tipton.
N. B. R. - National Bankruptcy Register, New York, CAMPBELL & Co.
Pac. Law Rep. — Pacific Law Reporter, San Francisco, Cal., J. P. BOGARDUS.
Pittsb. L. J. Pittsburg Legal Journal, Pittsburg, Pa., J. W. & J. S. MURRAY.
W. L. R. - Washington Law Reporter, Washington, D. C., Jno. L. GINCK.
W. N. C. - Weekly Notes of Cases, Philadelphia, KAY & Bro.
West. Jur. — Western Jurist, Des Moines, Iowa, Mills & Co.

ASSIGNMENT.

1. EQUITABLE ASSIGNMENT. — POWER OF ATTORNEY. – DEATH OF ATTORNEY. — A verbal agreement by a debtor to transfer stock to his creditor as security for the debt, followed by the execution of an irrevocable power of attorney to an agent of the creditor to transfer the stock, amounts to an equitable assignment of the stock to the creditor: and the power of attorney, being thus coupled with an interest, is not revoked by the death of the attorney before having executed it. Lightner's Appeal, S. C. Pa., W. N. C., February 1, 1877.

2. ASSIGNMENT DOES NOT. CARRY WITH IT RIGHT OF ACTION IN TORT. — Although the assignment of a debt carries with it all remedies and securities incident thereto, it does not transfer a personal right of action in tort, vested in the assignor, growing out of the same subject matter. Morris v. McCulloch, s. C. Pa., Ib., February 22, 1877.

ATTORNEY.

See ASSIGNMENT, 1.

BANKRUPTCY.

1. IF AN ASSIGNMENT IS FRAUDULENT, a creditor may obtain a lien upon the real estate by getting a judgment against the debtor, and upon the personal property by the levy of an execution thereon; and such liens will be valid as against the assignee in bankruptcy, if they are obtained before the commencement of the proceedings. Johnson v. Rogers, D. C. U. S. N. D. N. Y., 15 B. R. No. 1.

2. IF THERE ARE SEVERAL JUDGMENTS, the priority of the lien on

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Digest Of Cases.

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the real estate depends on the order in which the judgments are obtained, and the priority of the lien on the personal property is determined by the order of the levy. Ib.

3. A CREDITOR WHO IS PRECLUDED FROM ASSAILING AN ASSIGNMENT AS FRAUDULENT cannot obtain a lien on the property which will be valid as against the assignee in bankruptcy. 16.

4. A CREDITOR WHO, WITH FULL KNOWLEDGE OF THE FACTS that constitute the fraud, concurs with other creditors in assenting to its execution, cannot impeach it as fraudulent. Ib.

5. A PARTY WHO TAKES A COLORABLE TRANSFER OF A CLAIM from a trustee who has accepted the trust with full knowledge of all the facts that constitute the fraud, cannot impeach the assignment. Ib.

6. .A CREDITOR WHO HAS ASSENTED TO AN ASSIGNMENT may purchase a claim from another creditor who has not done so, and as to that claim may impeach the assignment. Ib.

7. A CREDITOR WHO PURCHASES PROPERTY FROM THE TRUSTEE in ignorance of the fraud, is not precluded from impeaching the assignment. 16.

8. A JUDGMENT AGAINST A PARTNER individually is a lien upon real estate held by the firm, subject, however, to the payment of the firm debts and the equities of his copartners. 16.

9. A PARTY WHO PURCHASES A JUDGMENT has no higher right to impeach a fraudulent assignment than his assignor had. 16.

10. THE LIEN ACQUIRED BY FILING A CREDITOR'S BILL extends only to property which cannot be reached on execution. Ib.

11. UNTIL A RECEIVER IS APPOINTED in the creditor's action, there is no lien, as against chattels that are subject to levy and sale on execution, which can be upheld as against the assignee. Ib.

12. THE LIMITATION OF SECTION 2057 does not apply to a proceeding to review a decree in equity. Wilt v. Stickney, D. C. U. S. N. D. Ohio,

Ib.

13. IF THE BANKRUPT GAVE A DEED WITH WARRANTY OF TITLE WHEN HE HAD MERELY A BOND for a title, his discharge will release him from his liability on the warranty. The mere levy of a fi. fa. is not sufficient evidence of a breach of a warranty of title. Williams v. Harkins, S. C. Ga., Ib.

14. THE REGISTER MAY DESIGNATE THE NEWSPAPERS in which notice of a rule by the assignee shall be published. Burke v. McKee, D. C. U. S. S. D. N. Y., Ib.

15. AN AFFIDAVIT OF DEFENCE WHICH SETS UP AN ADJUDICATION OF BANKRUPTCY is sufficient to prevent the entry of a judgment, and entitle the defendant to a stay of the action. Frostman v. Hicks, Ct. C. P. Pa., Ib.

16. SUSPENSION OF PAYMENT BY BANK. — SPECIAL DEPOSIT, ETC. - When a bank which had suspended payments advertised that it would, on a certain day, “resume business by receiving special separate deposits in trust to new account, pledging the bank to use these deposits only in payment of checks against that new account, and as fast as the bank can collect and realize from the loans and securities, to pay pro rata instalments on its present indebtedness,” &c., &c., and received new deposits,

on a certato new accagainst thadans and se &c., ar

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