Company in its cross bill was under the circumstances a proper subject of equitable cognizance, and counsel claimed it was really nothing but a legal cause of action in regard to which the cross defendant was entitled to a trial by jury under the Constitution of the United States. There being room for doubt in regard to the soundness of such contention, the counsel also took an appeal to the circuit court of appeals, and we think that by this action he did not waive any right of appeal which he would otherwise have had. Whichever route may be the correct one, either directly from the circuit court or through the circuit court of appeals, it is unnecessary to decide, because the case is now properly before us either by appeal or by the writ of certiorari; and we therefore proceed to determine it upon the merits.

The Pullman Company, complainant in the original suit, insists that it had the right to discontinue that suit at its own cost before any decree was obtained therein, and the refusal of the court below to grant an order of discontinuance upon its application is the first ground of objection to the decree herein.

The general proposition is true that a com[146]plainant in an equity *suit may dismiss his bill at any time before the hearing, but to this general proposition there are some well recognized exceptions. Leave to dismiss a bill is not granted where, beyond the incidental annoyance of a second litigation upon the subject-matter, such action would be manifestly prejudicial to the defendant. The subject is treated of in City of Detroit v. Detroit City Railway Company, in an opinion by the circuit judge, and reported in 55 Fed. Rep. 569, where many of the authorities are collected, and the rule is stated substantially as above. The rule is also referred to in Chicago & Alton Railroad Company v. Union Rolling Mill Company, 109 U. S. 702 [27: 1081].

From these cases we gather that there must be some plain, legal prejudice to defendant to authorize a denial of the motion to discontinue; such prejudice must be other than the mere prospect of future litigation rendered possible by the discontinuance. If the defendants have acquired some rights which might be lost or rendered less efficient by the discontinuance, then the court, in the exercise of a sound discretion, may deny the application. Stevens v. The Railroads, 4 Fed. Rep. 97, 105. Unless there is an obvious violation of a fundamental rule of a court of equity or an abuse of the discretion of the court, the decision of a motion for leave to discontinue will not be reviewed here.


the impossibility of returning a large portion of the property which it had received; it announced its willingness to make substantial performance of its contract contained in the lease, and it asked the court to aid it therein by decreeing exactly what it should do for the purpose of carrying out equitably and fairly its obligations incident to its termination of the lease under the clause above mentioned. The other theory rested upon what was a substantial allegation of the invalidity! 14 of the lease as having been made without authority of law, and therefore in violation of the corporate duties of the Central Company, and on that account not enforceable against the Pullman Company beyond the obligation of the latter company to make return of just compensation for the property demised. on that theory the bill asked, not that the court should set aside or cancel the lease, but that it should aid the parties by decreeing just what relief should be given by the complainant to the lessor in the execution of its duty to make some compensation for the property it received and which it stated its willingness to make, and to that end, that an accounting might be had and the aniount ascertained that should be paid to the Central Company in discharge of the obligations of the complainant in that behalf. Thus the Pullman Company came into a court of equity and in substance alleged that the lease had been terminated by it under the eighth clause, and it also alleged that the lease was void as ultra vires, and in either event it tendered such relief as the court might think was proper and fair under the circumstances.

A large amount of proof had been taken under the issues made in this original bill and the answer thereto, and before the case was concluded the decision of this court was made in which the lease was declared to be void. The only obligation left under the original bill of complainant after the decision of this court was the obligation to return such portion of the property received by it as the court should determine to be right, or to make some compensation to the Central Company for the same. And this obligation it had offered in the original bill to carry out.

The Pullman Company had also obtained an injunction in the original suit, restraining the Central Company from commencing further legal proceedings to recover rent under the lease, and after obtaining this injunction and taking the testimony relating to the subject-matter of the original bill, the complainant should not be permitted under these circumstances to dismiss that bill and thus withUpon an examination of the facts relat-draw the whole case from the jurisdiction of ing to the motion, we think the circuit court the court, and thereby blot out its *tenders off 148 was right, in the exercise of its discretion, in relief contained in its original bill grounded, denying the same. The original bill was among others, upon the allegation that the framed really on two theories: One, that lease was void, and asking the aid of the by reason of an election male under the court to decree the precise terms upon which eighth clause in the lease, the Pullman Com- its obligations to the Central Company might pany had terminated the lease, and it was be fulfilled. therefore bound under its provisions to return the property which it had received from the Central Company. It stated in its bill

The denial of the motion was made in connection with the application of the Central Company to tile a cross bill in which it would

facts appearing in the record and the grounds
on which that court proceeded as disclosed
by its opinion.

Counsel asserts that the rights clairaed under the Constitution of the United States were the right to due process of law, and the right to the equal protection of the laws.

The right to the equal protection of the laws was certainly not denied, for it is apparent that the same law or course of procedure which was applied to Tinsley would have been applied to any other person in the state of Texas, under similar circumstances and conditions; and there is nothing in the record on which to base an inference to the contrary.

doubtedly competent for the district court to compel the surrender of the minute book and notes in Tinsley's possession, and that he could not be discharged on habeas corpus until he had performed or offered to perform so much of the order as it was within the power of the district court to impose, even though it may have been in some part invalid. Re Swan, 150 U. S. 637 [37: 1207].

The other objections suggested require no special consideration. It is said that the imprisonment for contempt was limited by the state statute to three days (art. 1101, Tex. Rev. Stat.), but the state court held that that statute had reference to a quasicriminal contempt as a punishment, and not to a civil contempt, where the authority of the court is exercised by way of compelling obedience. Rapalje, Contempt, 21. This is not a Federal question, and we accept the ruling of the state court in its construction of the statute. It is urged that the order of commitment imposed an uncertain and indefinite term of imprisonment; but the order was that Tinsley should be confined until he complied, and the addition, “or *until he shall be discharged by the further order of the court," was merely intended to retain the power to discharge him if the court should thereafter conclude to do so, it being within his own power to obtain his discharge at any time by obeying the order. Nor is there any force in the objection that no trial by jury was awarded, for such trial was not demanded, and a jury trial is not necessary to due process of law on an inquiry for contempt. Walker v. Sauvinet, 92 Ú. S. 90 [23: 678]; Eilenbecker v. Plymouth County District Court, 134 U. S. 31 [33: 801]; Rapalje, Contempt, § 112.

The judgments of the Circuit Court and of the Court of Criminal Appeals are severally affirmed.

Was the right to due process of law denied? If the committing court had jurisdiction of the subject-matter and of the person. and power to make the order for disobedience to which the judgment in contempt was rendered, and to render that judgment, then the court of criminal appeals could not do other wise than discharge the writ of habeas corpus and remand the petitioner. The writ cannot be availed of as a writ of error or an appeal, and if the commitment was not void petitioner was not deprived of his liberty without due process of law.

The district court of Harris county, Texas, was a court of general jurisdiction, and had jurisdiction in the suit against the Cemetery Company and its officers, including Tinsley, who was not a stranger, but a party, to the litigation, after hearing had on due notice and appearance by the defendants, to enter the order appointing a receiver and directing the company's officers to deliver to him, on his demand therefor, the company's property in their custody, including the books, notes, and moneys on hand, and to determine on the facts that Tinsley was in contempt in refusing to deliver such property, and assuredly to adjudge this as to so much of the property as he conceded belonged to the company, but [107]the possession of which he claimed the right CENTRAL NATIONAL BANK OF BOS

to retain only in order to enforce an alleged

TON et al.



Where the motion to amend the mandate of this court proceeds on a misconception of the meaning of the judgment and mandate, the motion will be denied.

The court of criminal appeals held that, as Tinsley did not claim the legal title in the notes and in the minute book, but merely an equity or lien thereon to secure his debt; as the order to turn over the property to the receiver was by no means an adjudication as to his lien,which if it was a genuine lien would be preserved to him in the hands of the receiver; and as the effect of the order was merely to place the articles in the hands of the receiver for administration under the orders of the court,-the district court unquestionably had the power to make the order Submitted May 9, 1898. Decided May 31, as to these articles, and did not exceed its jurisdiction in so doing. So that even though the $492.52 was not a trust fund in his hands, as the district court had decided, but a mere debt due from him, because, as he alleged, that sum had been taken by another, and he had simply agreed to make 1 good, the adjudication of the district court was nevertheless sustainable apart from that item.

[No. 38.]


We concur in the view that it was un 171 U. S. U. S.. BOOK 43. 7


(See S. C. Reporter's ed. 108, 109.)
Motion to amend mandate.

IN ERROR to the Court of Appeals of the State of New York. On motion to amend the mandate in this cause (reported in 169 U. S. 432, 42 L. ed. 807) so as to command that the judgment be reversed only in the particulars described in the opinion of this court. Motion denied.

See same case below, 144 N. Y. 50.


Mr. Edward Winslow Paige, for the | NORTH AMERICAN COMMERCIAL COM110) defendants in error, in favor of motion:

The opinion of the court seems to show that the court intended to reverse the judgment in the two particulars only which are described in it. The mandate, however. commands the reversal of the whole judgment.

The defendants in error move to amend the mandate so that it conform to the opinion.

It is the opinion of the counsel who signs this brief that it is decidedly for the interest of the defendants in error that the motion be denied.

And for the following reasons:


The whole judgment being reversed, there must inevitably, under the laws of New York, be a new trial of the whole action the defendants in error might succeed in the new trial in all matters except those described in the opinion of the court-as to be reversed-there would be a general judgment in favor of the defendants in error like the present judgment, except that it would omit the injunction and the provision about the plaintiffs in error proving their certificates. Under that judgment there would of course be a new sale and the bondholders could then buy through the medium of a trustee other than Mr. Foster, thus relieving the case from the difficulty described in the opinion of the court.

It would also relieve the defendants in error from paying the costs of the court, since there is not any way under the laws of New York by which a successful plaintiff can be made to pay costs to the defendant.

And they can also show, although as we submit the present record shows, that not any of the proceeds of the certificates went into the property. Nevertheless we make the


Mr. Charles E. Patterson for plaintiffs in error, in opposition to motion.

Per Curiam: The motion to amend the mandate in the above case seems to proceed on a misconception of the meaning of the judgment and mandate.

The judgment of this court does not undertake to affect or reverse the judgment of the

PANY, Plff. in Err.,



(See S. C. Reporter's ed. 110–137.)
Lease by the government of the exclusive
right to take fur seals-maximum number
of seals-reduction of rental-Secretary
of the Treasury-damages.




No reduction of the per capita amount to be

paid for each sealskin taken and shipped by a
lessee of the government can be made on ac-
count of the limitation by the Secretary of
the Treasury of the number of seals that may
be killed, although by U. S. Rev. Stat. § 1962,
a proportionate reduction of the rents re-
served may be made, where the lease provides
for an annual rental of $60,000 and in addition
thereto for a certain sum for each skin taken
and shipped, as this is in the nature of a
bonus or addition to the stated consideration.

The original provision for a maximum num-
ber of seals to be taken by a lessee and a pro-
portionate reduction of the fixed rental in
case of a limitation, made by the act of Con-
gress of 1870, is not done away with by im-
plication by the act of May 24, 1874, which re-
moves the restrictions imposed by U. S. Rev.
Stat. §§ 1960, 1962, concerning the months
during which seals may be taken and the
number to be taken on or about each island

Assuming that the lessee took all the risk of
a catch of seals reduced by natural causes,
yet when the number that might be killed
was limited by the act of the government or
its agent, the Secretary of the Treasury, the
lessee was entitled to a reduction of the rental
reserved in the same proportion as the num-
ber of skins permitted bore to the maximum.
In reducing the number of seals which may
be taken by a lessee of the government in the
Pribiloff islands, in the exercise of the power
reserved to him, it is immaterial whether the
Secretary of the Treasury acts on his own
judgment, or in compliance with the will of
the government as expressed by the treaty
with Great Britain.

5. The right to take fur seals under a so-called
lease from the government, which is expressly
subject to such regulations of the business as
the United States may make, does not entitle
the lessee to any damages for a reduction of
the catch allowed by the regulations, for
which a reduction of rentals is provided.
[No. 431.]


ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Second Circuit in an action brought by the United States in the Circuit Court of the United States for the Southern District of New York against the North American Commercial Company, to recover for rent under a lease made by the Secretary of the Treasury to the company of the right to engage in the

supreme court of the state of New York, ex- Argued April 18, 19, 1898. Decided May 31,
cept in so far as that judgment sought to re-
strain the Central National Bank of Boston
and the other plaintiffs in error from proceed-
ing under and in accordance with the decree
of the circuit court of the United States for
the northern district of New York, and to
compel them to again try in the supreme court
of New York matters tried and determined
in the circuit court. As between the other
parties the judgment of the supreme court
of New York was, of course, left undisturbed,
and it is not perceived that the terms of the
mandate signify anything else, or imply the
consequences suggested by counsel.

The motion is denied.

that of navigation, see note to Wright v. Mul

NOTE.-A8 to right of fishery; subordinate to

vaney (Wis.) 9 L. R. A. 807.

As to prescriptive rights of fishery; in public navigable waters; in private waters, see note to Turner v. Hebron (Conn.) 14 L. R. A. 386.

business of taking fur seals on the islands of
St. George and St. Paul, in the territory of
Alaska, and for royalties upon the seals
taken, and for the revenue tax on the skins,
the judgment of the Circuit Court being in
favor of the United States for $94,687.50, with
interest and costs amounting to $107,257.29.
Judgment of Circuit Court reversed, and
cause remanded with direction to enter judg-
ment in favor of the United States for $76,-
C87.50 with interest from April 1, 1894, etc.
See same case below, 74 Fed. Rep. 145.

the business of taking fur seals on the Islands of St. George and St. Paul, in the ter ritory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals. "The said North American Commercial Company, in consideration of the rights secured to it under this lease above stated, on its part covenants and agrees to do the things following, that is to say:

"To pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars laid upon each fur seal skin taken and shipped by it from the islands of St.

Statement by Mr. Chief Justice Fuller: This was an action brought by the United States against the North American Commercial Company to recover the sum of $132,-George and St. Paul, and also to pay to said 187.50, with interest, for rent reserved for the Treasurer the iurther sum of seven dollars year ending April 1, 1894, under a so-called sixty-two and one half cents apiece for each lease, bearing date March 12, 1890, made by and every fur seal skin taken and shipped the Secretary of the Treasury to the com- from said islands, and also to pay the sum of pany, and royalties upon 7,500 fur-seal fifty cents per gallon for each gallon of oil skins taken and shipped by the company that sold by it made from seals that may be taken year in virtue of that instrument, and for on said islands during the said period of [111]the revenue tax of $2 on each skin. The twenty years, and to secure the prompt payclaim of the government consisted of these ment of the sixty thousand dollars rental items: above referred to the said company agrees to deposit with the Secretary of the Treasury bonds of the United States to the amount of fifty thousand dollars, face value, to be held as a guarantee for the annual payment of said sixty thousand dollars rental, the interest thereon when due to be collected and paid to the North American Commercial Company, provided the said company is not in default of payment of any part of the said sixty thousand dollars rental.

"That it will furnish to the native inhabitants of said islands of St. George and St. Paul annually such quantity or number of dried salmon and such quantity of salt and such number of salt barrels for preserving their necessary supply of meat as the Secretary of the Treasury shall from time to time determine.

"That it will also furnish to the said inhabitants eighty tons of coal annually and sufficient number of comfortable dwellings in which said native inhabitants may reside, and will keep *said dwellings in proper repair,and[113] will also provide and keep in repair such suitable school-houses as may be necessary, and will establish and maintain during eight months of each year proper schools for the "This indenture, made in duplicate this education of the children on said islands, the twelfth day of March, 1890, by and between same to be taught by competent teachers, William Windom, Secretary of the Treasury who shall be paid by the company a fair comof the United States, in pursuance of chapter pensation, all to the satisfaction of the Sec3 of title 23, Revised Statutes, and the North retary of the Treasury, and will also provide American Commercial Company, a corpora- and maintain a suitable house for religious tion duly established under the laws of the worship, and will also provide a competent state of California, and acting by I. Liebes, physician or physicians and necessary and its president, in accordance with a resolution proper medicines and medical supplies, and of said corporation adopted at a meeting of will also provide the necessaries of life for the its board of directors held January 4, 1890, widows and orphans and aged and infirm inwitnesseth: That the said Secretary of the habitants of said islands who are unable to Treasury, in consideration of the agreements provide for themselves; all of which foregoing hereinafter stated, hereby leases to the said agreements will be done and performed by North American Commercial Company for a the said company free of all costs and charges term of twenty years from the first day of to said native inhabitants of said islands or [112] May, 1890, tne exclusive right to engage into the United States.


$60,000 00 15,000 00 57,187 50 $132,187 50 And interest thereon from April 1, 1894. The case was tried by the circuit court without a jury. The court found for the United States in the sum of $94,687.50, with interest, and judgment was entered in their favor for $107,257.29, principal, interest, and costs. 74 Fed. Rep. 145.

Annual rental.

Revenue tax on 7,500 skins at $2.
Per capita at $7.62% on 7,500 skins.

The company having taken a writ of error to the circuit court o: appeals for the second circuit, that court certified a certain question arising in the cause concerning which it desired the instructions of this court for its proper decision, whereupon this court ordered that the whole record and cause be sent up for consideration. A counterclaim of the company against the United States for breach of the lease was disallowed and dismissed by the circuit court, but not on the merits, and without prejudice to the right of the company to enforce the same by any other proper legal proceeding.

The agreement of lease out of which the cause of action arose is as follows:

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"The said company further agrees to employ the native inhabitants of said islands to perform such labor upon the islands as they are fitted to perform, and to pay therefor a fair and just compensation, such as may be fixed by the Secretary of the Treasury; and also agrees to contribute, as far as in its power, all reasonable efforts to secure the comfort, health, education, and promote the morals and civilization of said native inhabitants.

"The annual rental, together with all other | ing of one male or bull and many temales or payments to the United States provided for cows; that the young or male seals, or bache in this lease, shall be made and paid on or iors as they are called, are not admitted to before the first day of April of each and every the breeding ground, but are driven off by year during the existence of this lease, be- the older males and oftentimes destroyed by ginning with the first day of April, 1891. them; that until such bachelor seals arrive at the age of three or four years they occupy other portions of the islands and can be driven away from the breeding ground and killed without disturbing the seals *on the[115] breeding grounds; that a large proportion of these young bachelor seals may be so killed without diminishing the birth rate of the herd, and their skins are a valuable article of commerce and are more valuable than the skins of the females or older males; that by protecting the females and restricting the capture to the bachelors the fisheries are capable of a permanent and annual supply of skins which would afford a valuable source of revenue.

"Seventh. That after the making of the said lease by the said plaintiff and the said defendant, the said defendant entered upon the enjoyment of the right thereby granted it; but on account of the enforcement by the said plaintiff of the provisions of a convention or agreement made and entered into by the said plaintiff with the government of Great Britain it prohibited and prevented the said defendant, during the years 1890, 1891, and 1892, from taking on the said islands as many seals as might have been taken without diminution of the herd, and far less in each year than the number mentioned in the said lease for the first year; the numbers taken in those years being in 1890, 20,995; in 1891, 13,482; and in 1892, 7,547.

"Eighth. That for the said years of 1890, 1891, and 1892, it was agreed between the Secretary of the Treasury and the said defendant that the said defendant should pay to the said plaintiff for the seal skins taken by it on the said islands the tax and such proportionate part of the rental of $60,000 and the per capita sum of seven dollars sixty-two and one half cents, as the number of seals taken bore to one hundred thousand, except that for 1890 the per capita of seven dollars sixty-two and one half cents was not so reduced.

"The said company also agrees faithfully to obey and abide by all rules and regulations that the Secretary of the Treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that [114]the Secretary of the Treasury shall judge necessary, under the law for the preservation of the seal fisheries of the United States; and it agrees that it will not kill or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the Secretary of the Treasury.

"The said company further agrees that it will not permit any of its agents to keep, sell,| give, or dispose of any distilled spirits or spirituous liquors or opium on either of said islands or the waters adjacent thereto to any of the native inhabitants of said islands, such person not being a physician and furnishing the same for use as a medicine.

"It is understood and agreed that the number of fur seals to be taken and killed for their skins upon said 'slands by the North American Commercial Company during the year ending May 1, 1891, shad not exceed sixty thousand.

"Ninth. That by a convention or agreement

"The Secretary of the Treasury reserves the right to terminate this lease and all rights of the North American Commercial Company with the government of Great Britain, comunder the same at any time on full and satis-monly called the modus vivendi, the United factory proof that the said company has vio-States promised, during the pendency of the lated any of the provisions and agreements arbitration between those two governments of this lease, or in any of the laws of the relating to the Behring Sea controversy and United States, or any Treasury regulation re- the preservation of the seals resorting to specting the taking of fur seals or concerning those waters, to prohibit seal killing on the the islands of St. George and St. Paul or the said islands in excess of 7,500 to be taken inhabitants thereof." from the islands for the subsistence of the natives, and to use promptly its best efforts to insure the enforcement of the prohibition.

The circuit court made eighteen findings, including the following:

"Sixth. The said islands of St. George and St. Paul in the territory of Alaska are the breeding ground of a herd of seals which in the early spring moves northward to Behring Sea, and are the habitat of that herd during the summer and fall of each year; that the ant of the benefit of its said lease. seals land in great numbers upon the said "Eleventh. That the Secretary of the Treasislands and divide into families, each consist-ury did not exercise the discretion conferred

"Tenth. That pursuant to such agreement[116] the United States prohibited and prevented the said defendant from taking any seals whatever from the said islands during the year 1893, and thus deprived the said defend

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