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Vol. IV.)

NOTES OF OPINIONS, DECISIONS, AND ORDERS.

No. 103. Geo. M. Wheeler, plaintiff in error, v. John Sedgwick, assignee, &c. 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. f. 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. plaintiff in error, v. The Hartford f Nero Haven 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, &c. 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 a venire facias de novo.

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, affirming 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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Notes of OPINIONS, DECISIONS, AND ORDERS.

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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 affirms 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). E. 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, &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, plaintiffin 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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Notes of Opinions, DECISIONS, AND ORDERS.

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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, affirming 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 bere 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, affirming 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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tion on the original judgment has been issued, and a return of nulla bona made by the proper officer ; that the truth of this return cannot be questioned in subsequent proceeding against the sureties. Nor can the officer making the return be compelled to amend or modify it unless he desires to do so. The fact that the defendant in the original judgment has been garnisheed, or the judgment sold at the instance of the creditors of the plaintiff, is no defence for the sureties in the proceeding against them, where they have not been made parties to any such proceeding to appropriate the original judgment against their principal.

No. 109. The Indianapolis & St. Louis Railroad Co., plaintiff in error, v. Henry Horst. In error to the Circuit Court of the United States for the District of Indiana. Mr. Justice Swayne delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. In this case the court affirms a judgment recovered by Horst against the company for damages sustained while travelling on a pass with his stock, in consequence of falling from the top of a car while a change of the caboose was being made, the court finding that the charge of negligence on the part of the agents of the company was sustained.

No. 105. Emory E. Norton, assignee, &c. plaintiff in error, v. Edgar A. Switzer. In error to the Supreme Court of the State of Louisiana. Mr. Justice Clifford delivered the opinion of the court, affirming the judgment of the said supreme court, with costs in this court. It is here said that state legislatures have no authority to create a maritime lien; nor can they confer'any jurisdiction upon a state court to enforce such a lien by a suit or proceeding in rem, as practised in admiralty courts. Causes of action giving rise to a maritime lien, whether contracts or torts, may, however, be prosecuted in other modes of proceeding as well as in rem in admiralty, if the party chooses to waive his lien and proceed in personam or at law.

No. 765. A. Yznaga Del Valle, plaintiff in error, v. Charles K. Harrison et al. In error to the Circuit Court of the United States for the District of Louisiana Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error for want of jurisdiction.

No. 125. Frederick Herhold, plaintiff in error, v. Clark W. Upton, assignee, &c. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said circuit court, with costs and interest.

No. 104. The United States, plaintiffs in error, v. Annie Fox et al. Mr. Chief Justice Waite announced the decision of the court, ordering this cause for reargument.

No. 150. Robert P. Dodge et al., appellants, v. The Freedman's Savings & Trust Company. Appeal from the Supreme Court of the District of Columbia. Mr. Justice Hunt delivered the opinion of the court, affirming the decree of the said supreme court, with costs. In this case the principle is reaffirmed that declarations made by the holder of a chattel mortgage, or a promissory note, while he holds it, are not competent evidence in a suit upon it, or in relation to it by a subsequent owner ; hence, the declarations of W. S. Huntington, who at one time held certain notes made by Dodge, that they were paid, are not evidence to defeat a recovery thereon in the hands of the bank.

No. 3. (original). The State of Florida, complainant, v. E. C. Anderson et al. Mr. Justice Bradley delivered the opinion of the court, decreeing the amount of money returned into this court be paid over to the State of Florida.

No. 118. Richard N. Windsor et al., devisees, &c. plaintiff in error, v. William N. McVeigh ; No. 163. Ann Gregory, plaintiff in error, v. Wm. N. McVeigh. In error to the Corporation Court of the city and county of Alexandria, Va. Mr. Justice Field delivered the opinion of the court, affirming the judgments of the said corporation court in these causes, with costs and interest on amount of damages recovered. Dissenting, Mr. Justice Hunt, Mr. Justice Miller, and Mr. Justice Bradley. These were actions by McVeigh to recover property which had been confiscated. The court below held that McVeigh had not had sufficient notice of the confiscation proceedings, and judgment was given for him. That judgment is here affirmed, the court holding that the jurisdiction acquired by the seizure in such cases is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity had been afforded to the owners or parties interested to appear and be heard upon the charges against them. Some notification beyond that arising from the seizure is essential, prescribing the time within which appearance must be made, and not being given in these cases by the usual modes, the decree of condemnation is held to be void.

No. 124. H. P. Bigelow, administrator, &c. plaintiff in error, v. The Berkshire Life

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Insurance Co. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court in this cause, with costs. In this case the court held that where the policy of insurance provided that it should be void in case the insured should commit suicide, sane or insane, the fact appearing that death was by suicide, the plea of insanity or of unconsciousness of act is no answer to the allegation of suicide; and it is said that it is not perceived why insurance companies cannot limit their risks in any manner they see fit, provided the insured is told in proper language of the extent of the limitation, and it is not against public policy.

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, & WENTWORT). Chicago L. N. Chicago Legal News, Chicago, Ill., Chicago LEGAL News Co. Daily Reg. – Daily Register, New York, 303 Broadway. 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. Gaz. — Legal Gazette, Philadelphia, Pa., King & Baird. 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. West. Jur. — Western Jurist, Des Moines, Iowa, MILLS & Co.

ADMIRALTY. 1. REVISED STATUTES, SECTIONS 1956 AND 4337. - A vessel is not engaged in the violation of section 1956 of the Revised Statutes, which provides that “no person shall kill any ..,. fur, seal .... within the limits of Alaska Territory," &c., unless such vessel is used or employed in the actual killing of such seal; and a mere preparation or intention upon the part of her master or owners so to employ her is not sufficient to constitute the offence, if for any reason no seals are killed. A vessel enrolled and licensed for the fisheries does not violate section 4337 of the Revised Statutes, which prohibits such vessel from proceeding on a foreign voyage without being registered, by touching at, or entering, the foreign port of Victoria, for supplies or any purpose other than trade, on her way from San Francisco to the fishing grounds on the northwest coast. The Ocean Spray, D. C. U. S. Or., Cent. L. J., December 1, 1876 ; Pac. Law Rep., December 5, 1876.

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