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

tacts 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.

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.

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 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 airecting 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 to retain only in order to enforce an alleged


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


TON et al.



(See S. C. Reporter's ed. 108, 109.)

Motion to amend mandate.

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.

[No. 38.]

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, IN ERROR to the Court of Appeals of the as the district court had decided, but a mere State of New York. On motion to amend the debt due from him, because, as he alleged, mandate in this cause (reported in 169 U. S. that sum had been taken by another, and he 432, 42 L. ed. 807) so as to command that the had simply agreed to make 1 good, the ad- judgment be reversed only in the particulars judication of the district court was neverthe-described in the opinion of this court. Motion less sustainable apart from that item.

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



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.

it should be accepted as the fairest criterion | man Company, nor were the shares of the of value."

He accordingly reported the value of the property when received as $58 a share (the par value being $50 per share or a total par value of $2,200,000) making the total market value of the shares $2.552,000, which sum he reported as the value of the property trans


When the report came before the court, exceptions having been taken, among other things, to the findings of the value of the property when delivered, the court said:

capital stock of the Central Company, all of which remained in the hands of its original owners. The probable prospective capacity for earnings also enters largely into mar-[155] ket value, and future possible earnings again depend to a great extent upon the skill with which the affairs of the company may be managed. These considerations, while they may enhance the value of the shares in the market, yet do not in fact increase the value of the actual property itself. They are matters of opinion upon which persons selling "It is the value of the property at the time and buying the stock may have different it should have been returned that the Pull- views. A liability to return or make comman Company should be charged with. In-pensation for property received cannot be asmuch as this value would be difficult of properly extended so as to include other conascertainment by the transportation com-siderations than those of the actual value pany except by reference to the value in of that property. 1870, it was considered proper to direct the In this particular case a consideration eninquiry to the latter date. Presumably the tering into the market value of the shares value increased; the evidence fully justifies must have been the probability or possibility the presumption. If it decreased, the Pull-of renewals of the contracts owned by the man Company could and should have shown [154]it. The master's *valuation in 1870 is therefore to be taken as the value in 1885, when the property should have been returned. The payment of this sum, with interest from January 1, 1885, seems necessary to a just settlement, treating the value of the use and the rents paid prior to that date as balancing each other. A decree may be prepared accordingly, dismissing the exceptions and confirming the report."

Judgment based upon the value of the property at $2,552,000 on the 1st of January, 1885, with interest from that time, was therefore entered, and it amounted, as stated, to the sum of $4,235,044.

company for the use of its cars upon the railroads of the companies with which it had such contracts and the possibility of extending its business in the future under contracts with other railroads. These considerations, while they affect more or less the value in the market of the shares of a corporation, do not constitute the value of the property which a party impliedly promises to pay for upon the agreement being determined void under which the property was received. The faith which a purchaser of stock in such a company has in the ability with which the company will be managed, and in the capacity of the company to make future earnings, may be well or ill-founded. It is but mat inter of opinion which in itself is not property. While the value of the property is one of the material factors going to make up the mar ket value of the stock, yet it is plainly not the sole one. Mere speculation has not uncommonly been known to exercise a potent influence on the market price of stock. The capacity to make any future earnings in this case by the lessee arose out of the transfer of the property to it and grew out of the lease itself, and that capacity would therefore be partly founded upon the illegal contract and could not otherwise exist.

We are of opinion that the court erred the manner of ascertaining the value of the property transferred by the Central Company. The market value of its stock was not a proper measure of the value of the property, and such error resulted in largely increasing the supposed value of the property which the cross defendant was under liability

to account for.

The capital stock of this corporation had
been increased from an original amount of
$200,000 in 1862 to $2,200,000 in 1870. Dur-
ing this time it had been doing an increasing
and a profitable business, and it was sup-
posed that such business might increase in
the future. The market price of the shares
of stock in a manufacturing corporation in-
cludes more than the mere value of the
property owned by it, and whatever is in-
cluded in that price beyond and outside of
the value of its property is a factor which in
a case like this cannot be taken into consid-
eration in determining the liability of the
cross defendant. Whatever that something
may be it is not that kind of property which We must therefore take the property that
was delivered or that can be returned or actually was transferred and determine its
compensation made in lieu of its return. It value in some other way than by this resort
is not property at all within the meaning of to the market price of the stock. The prop-
the word as understood in such a case as this. erty transferred consisted (a) of cars, bed-
The value of the franchise for one thing en- ding, etc.; (b) contracts which the Central
ters into the computation of market value. Company owned with railroad companies for
This was, of course, not assigned to the Pull-the use of its cars on their roads; (c) patents

As the market value of the shares of this
stock was made up to some extent, at least,
of certain factors which the lessee cannot,
under the rules of law, be held responsible for
in this case, it follows that such value cannot
furnish a safe guide in measuring *the respon-[156]
sibility of the lessee in an utterly void lease.
The court therefore erred in taking the mar-
ket value of the shares of this stock as a
proper or just measure of the value of the
property transferred.

"The annual rental, together with all other | payments to the United States provided for in this lease, shall be made and paid on or before the first day of April of each and every year during the existence of this lease, beginning with the first day of April, 1891. "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 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.

ing of one male or bull and many temales or cows; that the young or male seals, or bacheiors as they are called, are not admitted to the breeding ground, but are driven off by the older males and oftentimes destroyed by 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 Secretary of the Treasury reserves the right to terminate this lease and all rights "Ninth. That by a convention or agreement 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 violated any of the provisions and agreements of this lease, or in any of the laws of the United States, or any Treasury regulation respecting the taking of fur seals or concerning the islands of St. George and St. Paul or the inhabitants thereof."

The circuit court made eighteen findings, including the following:

States promised, during the pendency of the arbitration between those two governments relating to the Behring Sea controversy and the preservation of the seals resorting to those waters, to prohibit seal killing on the said islands in excess of 7,500 to be taken from the islands for the subsistence of the natives, and to use promptly its best efforts to insure the enforcement of the prohibition.

"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 seals land in great numbers upon the said "Eleventh. That the Secretary of the Treas islands 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 defendant of the benefit of its said lease.

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