with the knowledge that they had been or were to be sold again by
them, and for the purpose of enabling the respondents to transfer the
bonds with a good title, must be considered to have waived any right
to sue on the first sale; (3) that, conceding the first sale to have been
invalid, it was nevertheless the respondents' duty to sell the bonds at
as early a time as possible, and to place the proceeds in the hands of
their principals in payment of the debt for which the bonds were
pledged, and that they had done this with the consent and aid of the
complainants; and (4) that, on the complainant's theory of the relief
to which they were entitled, their remedy was at law, and not in
equity. Lacombe v. Forstall's Sons, 562.
1. The mandate in Sun Insurance Co. v. Kountz Line, 122 U. S. 583, is
modified in manner as shown in the order herein announced. Sun
Insurance Co. v. Kountz Line, 65.
2. Rulings of the court below on questions of law will not be considered
here on a writ of error, unless it appears from the bill of exceptions,
or otherwise in the record, that the facts were such as to make them
material to the issue which was tried. New York, Lake Erie, &c.,
Railroad Co. v. Madison, 524.
3. The court below acted properly in ordering the consolidation and trial
together of an action of replevin and an action in contract, the parties
being the same in both, their rights depending upon the same con-
tract, and the testimony in each being pertinent in the other.
Teal v.
Bilby, 572.
4. On the stipulation of such of the parties as are before this court, the de-
cree of the court below is reversed without costs, and the cause is
remanded with instructions to proceed in accordance with the stipula
tion, but without prejudice to the rights of other parties to the suit
who were not before this court on the appeal. Bond v. Davenport, 619.
5. When the value of the property in dispute is one of the questions in the
case and was necessarily involved in its determination in the court be-
low, this court will not, on a motion to dismiss for want of jurisdic-
tion, consider affidavits tending to contradict the finding of that court
in respect of its value. Talkington v. Dumbleton, 745.
See APPEAL;
ASSIGNMENT OF ERROR;
CONSTITUTIONAL LAW, 5;
COURT AND JURY, 1, 2;
DIVISION OF OPINION, 1;
EQUITY, 6;
JURISDICTION, B, 4;
LOCAL LAW, 1
PROHIBITORY LAW.
See CONSTITUTIONAL LAW, 16-24.
1. In order to constitute the exemption of coal lands contemplated by the
preëmption act under the head of "known mines," there must be
ascertained coal deposits upon the land, of such an extent and value
as to make the land more valuable to be worked as a coal mine, under
the conditions existing at the time, than for merely agricultural pur-
poses. Colorado Coal and Iron Co. v. United States, 307.
2. The mere fact that there are surface indications of coal on public land
will not of itself prevent the acquisition of title to the land under the
preemption laws; nor will the fact alone that after acquisition of such
a title the surface indications prove to be veins which are, by a change
of circumstances, profitably worked, invalidate such a title. Ib.
See EQUITY, 2, 3, 4;
VIRGINIA MILITARY DISTRICT.
PUBLIC LAW.
See LAND GRANT, 1, 2.
1. The relief prayed for in this case was the construction and maintenance
of a piece of railway in specific performance of a contract attached to
the bill as an exhibit; but upon examination it appeared that the
contract did not call for its construction and maintenance. Hoard
v. Chesapeake & Ohio Railway, 222.
2. If a railway company abandons part of its line and ceases to maintain
a piece of track which it had contracted to maintain, it has the right
to do so, subject to the payment of damages for the violation of the
contract; to be recovered, if necessary, in an action at law. Ib.
3. A railway company organized to receive, hold, and operate a railroad
sold under foreclosure of a mortgage, in the absence of a statute or
contract, is not obliged to pay the debts and perform the obligations
of the corporation whose property the purchasers buy. Ib.
See COMMON CARRIER;
CONTRACT, 7;
COURT AND JURY, 2.
RECEIVER.
See NATIONAL BANK;
MORTGAGE.
REMOVAL OF CAUSES.
See JUDGMENT, 2;
JURISDICTION, A, 15; B, 3.
1. The term "revenue law," when used in connection with the jurisdiction
of the courts of the United States, means a law imposing duties on
imports or tonnage, or a law providing in terms for revenue; that is
to say, a law which is directly traceable to the power granted to Con-
gress "to lay and collect taxes, duties, imposts, and excises." United
States v. Hill, 681.
2. Section 844 Rev. Stat., requiring the clerk of a court of the United
States to pay into the Treasury any surplus of fees and emoluments
which his return shows to exist over and above the compensation and
allowances authorized by law to be retained by him is not a revenue
law within the meaning of that clause of § 699 Rev. Stat. which pro-
vides for a writ of error without regard to the sum or value in dispute,
"upon any final judgment of a Circuit Court . . . in any civil action
brought by the United States for the enforcement of any revenue law
thereof."
For AMENDMENT TO RULE 20, see page 759.
SALE ON EXECUTION.
See JUDGMENT.
1. In this case the services rendered by a corporation whose business was
that of a wrecker and salvor to a vessel in distress were held to be sal-
vage services of a meritorious character. The Excelsior, 40.
2. No agreement having been made for a fixed sum to be paid, nor any
binding engagement to pay at all events, although there was an agree-
ment to submit to arbitration the amount received for the service, in
case the two principals could not agree upon a sum, it was held that
there was no bar to the claim for salvage. Ib.
3. Comments upon the effect of a conversation at the time between the
masters of the two vessels. 1b.
4. The effect of the agreement to submit to arbitration considered.
5. A salvage of $5600 having been awarded by the Circuit Court on the
basis of 3 per cent on $160,000 of value saved, this court, not being
able to say, as a question of law, that the allowance was excessive,
affirmed the decree. Ib.
1. An officer in the regular Navy, whose service therein was continuous in
various grades from 1860 to 1868, and who held the rank of lieutenant-
commander when the act of July 15th, 1870, c. 295, § 3, 16 Stat. 330,
now § 1556 of the Revised Statutes, was passed, giving graduated pay
for various ranks, is entitled to the benefit of the act of March 3d,
1883, c. 97, 22 Stat. 473. United States v. Mullan, 186.
2. It is not necessary that he should have entered the service more than
Ib.
3. The percentage allowed to officers of the Navy under General Order No.
75 of May 23, 1866, in lieu of all allowances except for mileage or
travelling expenses, is to be calculated on the amount statedly re-
ceived by the officer as statutory pay at the time the order was in force,
and is not to be increased by the additional compensation allowed by
The direct tax laid by the act of August 5, 1861, did not create any liabil-
ity on the part of the States, in which the lands taxed were situated,
to pay the tax. United States v. Louisiana, 32.
See CONSTITUTIONAL LAW, 9-15; LAND GRANT, 2;
See TABLE OF STATUTES CITED IN OPINIONS.
A. CONSTRUCTION OF STATUTES.
1. A diplomatic and consular appropriation act which transfers a consulate
from the class in which it had previously stood to a lower class, with
a smaller salary, operates to repeal so much of previous legislation as
placed the consulate in the grade from which it was removed. United
States v. Langston, 118 U. S. 389, distinguished. Mathews v. United
States, 182.
2. In the construction of a statute, although the words of the act are gen-
erally to have a controlling effect, yet the interpretation of those
words must often be sought from the surrounding circumstances and
previous history. Siemens v. Sellers, 276.
B. STATUTES OF THE UNITED STATES.
A supersedeas obtained by a plaintiff in error under the provisions of Rev.
Stat. § 1007 does not operate to enjoin the defendant in error from
bringing a new suit on a new cause of action, but arising out of the
same general matter, and involving the same questions of law which
are brought here for review. Natal v. Louisiana, 516.
1. Section 5219, Rev. Stat., respecting the taxation of national banks, does
not require perfect equality between state and national banks, but
only that the system of taxation in a State shall not work a discrimi-
nation favorable to its own citizens and corporations and unfavorable
to holders of shares in national banks. Davenport Bank v. Davenport,
83.
2. If a state statute creating a system of taxation does not on its face dis-
criminate against national banks, and there is neither evidence of a
legislative intent to make such discrimination, nor proof that the stat-
ute works an actual and material discrimination, there is no case for
holding it to be unconstitutional. Ib.
3. Construing the clause in the internal revenue act of July 14, 1870, which
imposed a tax for the year 1871 of 2 per cent on all undivided profits
of corporations accrued and earned and added to a surplus, contingent,
or other fund, in connection with the previous internal revenue stat-
utes, it is plain that it was the intention of Congress not to subject to
that tax profits of a railroad corporation during that year, which were
not divided, but were used for construction. Marquette, &c., Railroad
Co. v. United States, 722.
See COURT AND JURY, 2;
EQUITY, 8, 9;
MUNICIPAL CORPORATION;
STATES.
See JURISDICTION, A, 5;
LAND GRANT, 6.
1. If the trustee in a deed of trust in the nature of a mortgage acts in good
faith in foreclosing it, and obtains a decree of foreclosure and sale,
whatever binds the trustee in the proceedings which are begun and
carried on to enforce the trust, binds the cestuis que trust as if they
were actual parties to the suit. Richter v. Jerome, 233.
2. If, in a suit in equity by the trustee in a deed of trust in the nature of
a mortgage to foreclose the mortgage the decree or the sale is obtained
in fraud of the rights of the cestuis que trust, their remedy is a direct
proceeding to set aside the sale or the decree and proceed anew with
another foreclosure; and not an attempt to reforeclose what had been
fully foreclosed before, under a decree which remains in force. Ib.
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