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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fore had been withdrawn from commerce, would furnish a defence to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.

NATIONAL BANK.
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." Dagys v. Phonix National Bank, 549.

NAVIGABLE WATERS.
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. Leory 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. Ib.
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.

PARTNERSHIP.
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.

PATENT FOR INVENTION.
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, Food &

Co. v. Stover Manufacturing Co., 485.
2. Patent No. 433,531, granted to Mast, Foos & Company upon the appli-
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.

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.

.

PRACTICE.
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 it
case within the jurisdiction of the court. Great Southern Fire Proof
Hotel Co. v. Jones, 449.

PUBLIC LAND.
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

See MEXICAN GRANT;

MINING CLAIMS.

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RAILROAD.
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, 30).
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. 16.
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
he was appointed, even in a state court, for a disregard of official duty

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. Ib.
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

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. 1b.
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. 1b.
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. 15.
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. 16.

See EVIDENCE;

NORTHERN PACIFIC RAILWAY.

RES JUDICATA.
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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