the trial court, which was reversed in the courts above on the ground
that as, at that time he had paid nothing on the forfeiture, no re-
covery could be had. In appealing from the trial court in that case
he entered into the usual stipulation that, if the judgment appealed
from should be affirmed, judgment absolute might be rendered against
him. He then brought this suit to foreclose the mortgage. Mean-
while Nelson had transferred the property mortgaged to one Adams.
The defendant contended that the stipulation given by the plaintiff
on the appeal to that court in the prior action was a bar to the re-
covery in this action; and that the bond and mortgage having been
given to indemnify bail in a criminal case, they were void because
contrary to public policy. But the Court of Appeals Held: (1) That
the contention that the stipulation operated to prevent a recovery was
without support in authority or reason; and (2) That it was not a
part of the public policy of the State of New York to insist upon per-
sonal liability of sureties, and forbid bail to become indemnified.
Held: (1) That these conclusions involved no Federal question;
(2) That under the circumstances described in the opinion of the
court, the proceedings in relation to the removal of the cause afforded
no ground for the issue of the writ of error; (3) That, following
Missouri Pacific Railway v. Fitzgerald, 160 U. S. 556, the state court
having proceeded to final judgment in this case, its action is not re-
viewable on writ of error to such judgment. Nelson v. Moloney, 164.
4. It appearing on the face of the bill in this case that all the parties to
this suit are citizens of Iowa, and the court being of opinion that the
allegation in the bill that this is a controversy and a suit of a civil
nature arising under the Constitution and laws of the United States
is not only not supported by the facts appearing in the bill, but is so
palpably unfounded that it constitutes not even a color for the juris-
diction of the circuit court, the decree below, dismissing the bill for
want of jurisdiction, is affirmed. McCain v. Des Moines, 168.
5. On its face the decree of the Circuit Court of Appeals in this case is
not a final judgment, and the appeal must therefore be dismissed.
United States v. Krall, 385.
6. The statute conferring jurisdiction upon this court to consider and act
upon the Indian cases was intended to operate retrospectively, and is
not thereby rendered void. Stephens v. Cherokee Nation, 445.
7. The validity of remedial legislation of this kind cannot be questioned
unless it is in violation of some provision of the Constitution. Ib.
8. The appeals to this court granted by the act extend only to the consti-
tutionality or validity of the legislation affecting citizenship or the
allotment of lands in the Indian Territory, and the limitation applies
to both classes of cases mentioned in the opinion of the court, viz. :
(1) citizenship cases; (2) cases between either of the Five Civilized
Tribes and the United States. Ib.
9. The distribution of jurisdiction made by the act of March 3, 1891,
c. 517, is to be observed in these cases; but the whole case is not open
to adjudication, but the appeal is restricted to the constitutionality
and validity of the legislation. Ib.
10. This legislation is not in contravention of the Constitution; on the
contrary, the court holds it all to be constitutional. Ib.
11. The judiciary act of March 3, 1891, c. 517, 26 Stat. 826, does not con-
template several separate appeals or writs of error, on the merits, in
the same case and at the same time to two appellate courts, and there-
fore the writ in this case in this court, which was taken while the case
was pending in the Circuit Court of Appeals, is dismissed. Columbus
Construction Co. v. Crane Co., 601.
B. JURISDICTION OF CIRCUIT COURTS OF APPEALS.
The provision of the act of 1891, c. 517, § 3, that no judge before whom
"a cause or question may have been heard or tried" in a District or
Circuit Court shall sit "on the trial or hearing of such cause or ques
tion" in the Circuit Court of Appeals, disqualifies a judge, who has
once heard a cause upon its merits in the Circuit Court, from sitting
in the Circuit Court of Appeals on the hearing and decision of any
question, in the same cause, which involves in any degree matter on
which he had occasion to pass in the Circuit Court. Moran v. Dil-
lingham, 153.
C. JURISDICTION OF CIRCUIT COURTS.
The Circuit Court of the United States for the District of Kentucky has
jurisdiction of a suit brought by a corporation, originally created by
the State of Indiana, against citizens of Kentucky and of Illinois, even
if the plaintiff was afterwards and before the suit made a corporation
of Kentucky also, and pending the suit became a corporation of both
Indiana and Illinois by reason of consolidation with a corporation of
Illinois; but the court cannot, in such a suit, adjudicate upon the
rights and liabilities, if any, of the plaintiff as a corporation of Ken-
tucky, or as a corporation of Illinois. Louisville, New Albany & Chi-
cago Railway Co. v. Louisville Trust Co., 552.
D. JURISDICTION OF THE COURT OF CLAIMS.
1. Under the act of March 3, 1891, c. 538, giving the Court of Claims ju-
risdiction over claims for property of citizens of the United States
taken or destroyed by Indians no jurisdiction is given to the court
over a claim for merely consequential damages resulting to the owner
of property so taken by reason of the taking but not directly caused
by the Indians. Price v. United States and Osage Indians, 373.
2. Under the act of July 28, 1892, c. 313, conferring jurisdiction on the
Court of Claims "to hear and determine what are the just rights in
law" of the daughter and heir of Hugh Worthington to compensation
for his interest in a steamboat taken and converted into a gunboat by
the United States during the War of the Rebellion, and, if it "shall
find that said claim is just," to render judgment in her favor for the
sum found due, the issue to be determined depends upon the question
what had been his legal right to such compensation, embracing all
questions, of law or of fact, affecting the merits of the claim. Oakes
v. United States, 778.
In this case a jury was empanelled, trial had, and the case submitted on
the 30th of November, 1896, with the following written instructions :
"When the jury agree upon a verdict, write it out, all of the jurors
sign it, date it, seal it up and deliver to the foreman, to be delivered
in open court on the 1st day of December, 1896, and in the presence
of all who sign it." On the 1st of December the jury returned the fol-
lowing verdict in writing signed by all. The official record of the
proceedings is as follows: "Come here again the parties aforesaid in
manner aforesaid, and the same jury return into court, except John
T. Wright, who does not appear, and having said sealed verdict in his
possession as foreman sends the same to the court by Dr. McWilliams,
who delivers the same to the court with the statement that the said
John T. Wright is ill and confined to his bed and physically unable
to appear in court; that he, said McWilliams, is his attending physi-
cian, and as such received from said Wright said sealed verdict with
direction to deliver it to the court; whereupon the defendant, by its
counsel, objected to the reception, opening and reading of said sealed
verdict; whereupon, in answer to the questions of the court, the re-
maining jurors severally on their oath say that they severally signed
said verdict, and that they saw said John T. Wright sign the same,
and that the name 'John T. Wright,' signed thereto, is in his hand-
writing; thereupon the remaining jurors on their oath say they find
said issue in favor of the plaintiff and assess her damages by reason
of the premises at seven thousand dollars ($7000)." The counsel for
the defendant ask that the jury be polled, which is done, and each of
said remaining jurors on his oath says that he finds said issue in favor
of the plaintiff and assesses her damages by reason of the premises at
$7000.00. Judgment was entered on this verdict against the District.
It was contended by the District, which contention was sustained by
the Court of Appeals, that this judgment was a nullity. Held, That
the defect complained of was merely a matter of error, which did not
render the verdict a nullity. Humphries v. District of Columbia, 190.
See TRIAL BY JURY.
A petition for the rehearing of this case, which was decided May 23, 1898,
and is reported 170 U. S. 681, is denied, on the ground that, after a
careful reexamination of the record, the court adheres to the judg-
ment heretofore rendered, remaining of the opinion that from and after
the adoption of the Mexican constitution of 1836, no power existed in
the separate States to make such a grant as the one in this case.
United States v. Coe, 578.
Mitchell County v. Bank of Paducah, 91 Texas, 361, which was an action
upon interest coupons on bonds issued by the county for the purpose
of building a court house and jail, and for constructing and purchas-
ing bridges, in which it was held that as the constitution and laws of
Texas authorizing the creation of a debt for such purposes require
that provision should be made for the interest and for a sinking fund
for the redemption of the debt, it was the duty of the court, in an ac-
tion brought by a bona fide holder of bonds issued under the law to so
construe it as to make them valid and give effect to them, is followed
by this court, even if it should be found to differ from previous deci-
sions of the Supreme Court of Texas, in force when the decision of
the court below in this case was made. Wade v. Travis County, 499.
1. In June, 1892, the United States National Bank of New York, by letter,
solicited the business of the First National Bank of Little Rock,
Arkansas. The latter, through its president, accepted the proposition,
and opened business, by enclosing for discount, notes to a large
amount. This business continued for some months, the discounted
notes being taken up as maturing, until the Arkansas bank suspended
payment, and went into the hands of a receiver. At that time the
New York bank held notes to a large amount, which it had acquired
by discounting them from the Arkansas bank. These notes have
been duly protested for non-payment, and the payment of the fees of
protest, made by the New York bank, have been charged to the
Arkansas bank in account. The receiver refused to pay or allow
them. At the time of the failure of the Arkansas bank there was
a slight balance due it from the New York bank, which the latter
credited to it on account of the sum which was claimed to be due on
the notes after the refusal of the receiver to allow them. The New
York bank commenced this suit against the receiver, to recover the
balance which it claimed was due to it. The receiver denied all
liability and asked judgment in his favor for the small balance in the
hands of the New York bank. It was also set up that the notes dis-
counted by the New York bank were not for the benefit of the
Arkansas bank, but for the benefit of its president, and that the New
York bank was charged with notice of this. The judgment of the
trial court, which was affirmed by the Circuit Court of Appeals, was
for the full amount of the notes, less the set-off. In this court motion
was made to dismiss the writ of error on the ground that jurisdiction
below depended on diversity of citizenship, and hence was final.
Held: (1) That the receiver, being an officer of the United States, the
action against him was one arising under the laws of the United
States, and this court had jurisdiction; (2) That it was competent for
the directors of the Arkansas bank to empower the president, or cashier,
or both to endorse the paper of the bank, and that, under the circum-
stances, the New York bank was justified in assuming that the dealings
with it were authorized, and were executed as authorized; (3) That
the set-off having been allowed by the New York bank in account, the
receiver was entitled to no other relief. Auten v. U. S. National Bank
of New York, 125.
2. The investment by the First National Bank of Concord, New Hamp-
shire, of a part of its surplus funds in the stock of the Indianapolis
National Bank of Indianapolis, Indiana, was an act which it had no
power or authority in law to do, and which is plainly against the
meaning and policy of the statutes of the United States and cannot be
countenanced; and the Concord corporation is not liable to the re-
ceiver of the Indianapolis corporation for an assessment upon the stock
so purchased made under an order of the Comptroller of the Cur-
rency to enforce the individual liability of all stockholders to the
extent of the assessment. Concord First National Bank v. Hawkins,
364.
3. The doctrine of estoppel does not apply to this case. Ib.
4. The receiver of a national bank cannot recover a dividend paid to a
stockholder not at all out of profits, but entirely out of capital, when
the stockholder receiving such dividend acted in good faith, believing
the same to be paid out of profits, and when the bank, at the time
such dividend was declared and paid, was not insolvent. McDonald v.
Williams, 397.
5. The decision of the court below that taxes imposed upon the franchise
or intangible property of a national bank may be regarded as the
equivalent of a tax on the shares of stock in the names of the share-
holders, and hence did not violate the act of Congress in that respect,
was erroneous and is reversed. First National Bank of Louisville v.
Louisville, 438.
6. The several payments and remittances made to the Chemical Bank by
the Capital Bank before its insolvency were not made in contemplation
of insolvency, or with a view to prefer the Chemical Bank. McDon-
ald v. Chemical National Bank, 610.
7. These checks and remittances were not casual, but were plainly made
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