of New Orleans; that it was not susceptible to alienation or private ownership or private possession. Judgment was rendered in favor of the city, which was affirmed by the Supreme Court of the State. Held, (1) That this court had jurisdiction to revise that judgment; (2) that if there were no question of a prior judgment, proof that the land had been properly dedicated for a public square to the public use, and there- fore had been withdrawn from commerce, would furnish a defence to the claim by any person of a right to sell the property under an execu- tion upon a judgment against the city; (3) that as the city did not set up that defence, although it was open to it to do so, in the former action, it could not set it up now; (4) that although the city holds property of such a nature in trust for the public, that fact does not distinguish it from the character in which it holds other property, so as to bring the case within the meaning of the rule that a judgment against a man as an administrator does not bind him as an individual; (5) that the former judgment should have been admitted in evidence upon the trial of this action. Werlein v. New Orleans, 390.
2. In an action at common law to recover from a municipal organization upon a warranty issued by it, when the defendant denies the execution of it, and sets up that it is a forgery, the plaintiff, in order to be en- titled to put the instrument in evidence, and thereby make a prima facie case, would be compelled to prove its execution. Apache County v. Bath, 538.
3. The Revised Statutes of Arizona of 1887, provide : “735. (Sec. 87). Any answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit-. . . 8. A denial of the execution by himself or by his authority of any instru- ment in writing upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit will be sufficient if it state that the affiant has reason to believe and does believe, that such instrument was not executed by the decedent or by his authority." Held, That when the defendant did not verify his answer in a case provided for therein, the note or warrant or other paper sued on was admitted as genuine, but when an answer denying that fact was verified, the plaintiff must prove it as he would have to do at common law in a case where the genuineness of the paper was put at issue by the pleadings. Ib.
In the provision in Rev. Stat. §5197 that when no rate of interest "is fixed by the laws of the State, or Territory, or District" in which a bank is situated it "may take, receive, reserve or charge a rate not exceeding seven per cent," the words "fixed by the laws" must be construed to mean" allowed by the laws." Daggs v. Phoenix National Bank, 549.
1. Subject to the paramount jurisdiction of Congress over the navigable
waters of the United States, the State of Louisiana had, under the act of March 2, 1849, c. 87, and the other statutes referred to in the opin- ion of the court, full power to authorize the construction and mainten- ance of levees, drains and other structures necessary and suitable to reclaim swamp and overflowed lands within its limits. Leovy v. United States, 621.
2. The dam constructed by the plaintiff in error at Red Pass was con- structed under the police power of the State, and within the terms and purpose of the grant by Congress. Ib.
3. The decision of the jury, to whom it had been left to determine whether the plaintiff in error was guilty, that the pass was in fact navigable, is not binding upon this court.
4. The term navigable waters of the United States has reference to com- merce of a substantial and permanent character to be conducted thereon. Ib.
5. The defendant below was entitled to the instruction asked for, but re- fused that the jury should be satisfied from the evidence that Red Pass was, at the time it was closed, substantially useful to some pur- pose of interstate commerce, as alleged in the indictment. Ib.
6. Upon the record now before the court it is held that Red Pass, in the condition it was when the dam was built, was not shown by adequate evidence, to have been a navigable water of the United States, actually used in interstate commerce, and that the court should have charged the jury, as requested, that upon the whole evidence adduced, the de- fendants were entitled to a verdict of acquittal. Ib.
NORTHERN PACIFIC RAILWAY.
1. The eastern terminus of the Northern Pacific Railroad, which was con- structed under the powers conferred upon that Railroad Company by the act of July 2, 1864, c. 217, 13 Stat. 365, was at Ashland in Wiscon- sin, and that company acquired a right of way over public lands in Wisconsin, including the land in question in this case. Doherty v. Northern Pacific Railway Company, 421.
2. The important questions of fact and law are substantially the same in this case and in Doherty v. Northern Pacific Railway Company, ante, 421, and that case is followed in this in regard to the questions com- mon to the two cases. United States v. Northern Pacific Railway Com- pany, 435.
3. The obvious purpose of this suit was, to have the question of the proper terminus of the company's road determined; and if that terminus was found to be at Ashland, then the complainant would not be entitled to any relief. Ib.
4. Under the act of July 2, 1864, non-completion of the railroad within the time limited did not operate as a forfeiture. Ib.
5. As the bill, in this case, does not allege that it is brought under author- ity of Congress, for the purpose of enforcing a forfeiture, and does not allege any other legislative act, looking to such an intention, this suit must be regarded as only intended to have the point of the eastern terminus judicially ascertained. Ib.
6. As the evidence and conceded facts failed to show any mistake, fraud or error, in fact or in law, in the action of the land department in ac- cepting the location of the eastern terminus made by the company, and in issuing the patent in question, the bill was properly dismissed. Ib.
Under articles 1223 and 1224 of the Revised Statutes of Texas of 1895, an action cannot be maintained against a partnership, consisting of citi- zens of other States, by service upon an agent within the State. In re Grossmayer, 48.
1. There is no obligation on the part of courts in patent causes to follow the prior adjudications of other courts of coördinate jurisdiction, par- ticularly if new testimony be introduced varying the issue presented to the prior court. Comity is not a rule of law, but one of practice, convenience and expediency. It requires of no court to abdicate its individual judgment, and is applicable only where, in its own mind, there may be a doubt as to the soundness of its views. Mast, Foos & Co. v. Stover Manufacturing Co., 485.
2. Patent No. 433,531, granted to Mast, Foos & Company upon the appli- cation of Samuel W. Martin, for an improvement in windmills, was an- ticipated by prior devices, and is invalid. Under the state of the art
it required no invention to adapt to a windmill the combination of an internal toothed spur wheel with an external toothed pinion, for the purpose of converting a revolving into a reciprocating motion. Ib. 3. Where a case is carried by appeal to the Circuit Court of Appeals from an order granting a temporary injunction, it is within the power of that court to dismiss the bill, if there be nothing in the affidavits tend- ing to throw doubt upon the existence or date of the anticipating de- vices, and, giving them their proper effect, they establish the invalidity of the patent. Ib.
Under the circumstances disclosed by the record the Circuit Court should have allowed an amendment of the pleadings upon the subject of the citizenship of the parties, and the case should have proceeded to a final hearing on the merits in the event the pleadings as amended showed a case within the jurisdiction of the court. Great Southern Fire Proof Hotel Co. v. Jones, 449.
1. Under the act of March 3, 1875, c. 152, "granting to the railroads the right of way through the public lands of the United States,” such grant to the plaintiff in error took effect upon the construction of its road. Jamestown & Northern Railroad Co. v. Jones, 125.
2. On the evidence set forth in the statement of facts and in the opinion of the court, it is held, that there was on the part of the entryman a dis- tinct violation of section 2262 of the Revised Statutes, with regard to
contracts by which the tract for which he applies is not to inure to an- other's benefit, and the adverse judgment of the court below is sus- tained. Hyde v. Bishop Iron Co., 281.
See MEXICAN GRANT;
MINING CLAIMS.
1. A receiver of a railroad is not within the letter or the spirit of the pro- visions of the act of March 3, 1873, c. 252, 17 Stat. 584, entitled "An act to prevent cruelty to animals while in transit by railroad or other means of transportation within the United States," now incorporated into the Revised Statutes as sections 4386, 4387, 4388 and 4389. United States v. Harris, 305.
2. There is no substantial difference between the Federal question in this case raised in the Supreme Court of Minnesota, and that raised in it here. Minneapolis & St. Louis Railway Co. v. Gardner, 332.
3. The act of Minnesota of March 2, 1881, c. 113, authorizing the consolida- tion of several railroad companies created a new corporation, upon which it conferred the franchises, exemptions and immunities of the constituent companies; but that did not include an exemption of stock- holders in the old companies from the payment of corporate debts, or their liability to pay them. lb.
4. In a State having a constitutional provision imposing liability on stock- holders, if the legislature intended those of a new corporation created by it should be exempt, it would express the intention directly, and not commit it to disputable inference from provisions which apply by name to the corporation. Ib.
5. A state statute required all regular passenger trains to stop a sufficient length of time at county seats to receive and let off passengers with safety. It appearing that the defendant company furnished four regu- lar passenger trains per day each way, which were sufficient to accom- modate all the local and through business, and that all such trains stopped at county seats, the act was held to be invalid as applied to an express train intended only for through passengers from St. Louis to New York. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Illinois, 514.
6. While railways are bound to provide primarily and adequately for the accommodation of those to whom they are directly tributary, they have the legal right, after all these local conditions have been met, to adopt special provisions for through traffic, and legislative interference there- with is an infringement upon the clause of the Constitution which requires that commerce between the States shall be free and unob- structed.
7. All questions arising under the constitution and laws of Kansas, are, for the purposes of this case, foreclosed by the decisions of the state courts. Erb v. Morasch, 584.
8. It is the duty of a receiver appointed by a Federal court to take charge of a railroad, to operate it according to the laws of the State in which it is situated, and he is liable to suit in a court other than that by which
he was appointed, even in a state court, for a disregard of official duty which causes injury to the party suing. Ib.
9. A city, when authorized by the legislature, may regulate the speed of trains within its limits, and this extends to interstate trains in the ab- sence of congressional action on the subject. Ib.
10. The Interstate Transit Railway is a railway connecting Kansas City, Missouri, with Kansas City, Kansas, and the exception of its trains from the general provision in the city ordinance respecting the speed of trains in the city was an exception entirely within the power of the legislature to make. Ib.
11. All questions arising under the Constitution and laws of Kansas are, for the purposes of this case, foreclosed by the decisions of the state courts.
12. It is the duty of a receiver appointed by a Federal court to take charge of a railroad, to operate it according to the laws of the State in which it is situated, and he is liable to suit in a court other than that by which he was appointed, even in a state court, for a disregard of official duty which causes injury to the party suing. Ib.
13. A city, when authorized by the legislature, may regulate the speed of trains within its limits, and this extends to interstate trains in the absence of congressional action on the subject. Ib.
14. The Interstate Transit Railway is a railway connecting Kansas City, Missouri, with Kansas City, Kansas, and the exception of its trains from the general provision in the city ordinance respecting the speed of trains in the city was an exception entirely within the power of the legislature to make. Ib.
NORTHERN PACIFIC RAILWAY.
Plaintiff's intestate, a married woman, filed a bill in the District Court of the United States against her husband's assignee in bankruptcy and the purchaser of a lot of land at the assignee's sale, setting forth her equit- able claim to the property, and praying that the purchaser be required to convey to her. A decree was entered in her favor and an appeal taken to the Circuit Court by Campbell, the purchaser. Plaintiff did not press the appeal, but began a new action in ejectment in a state court against the defendant, Campbell, who set up a new title in himself and recovered a judgment. Thereupon, and sixteen years after the decree in her favor in the District Court, plaintiff moved to dismiss the appeal to the Circuit Court. This motion was denied. Thereupon she set up the decree in her favor, although it had not been pleaded by either party in the state court. Held, (1) That the plaintiff having abandoned her suit in the District Court, it was too late to move to dismiss the appeal; (2) that the decree not having been pleaded in the state court could not now be resuscitated; (3) that the judgment of the state court was res judicata of all the issues between the parties, and that the decrees of the Circuit Court and Circuit Court of Appeals
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