federal courts. The company is a necessary party although the citizen of the other State raises! a separate issue as to the validity of the proceedings under which said sale was had.
and several cause of action, does not create a sepa- rate controversy so as to entitle him to removal under the Act of 1875. Idem,
St. Louis & S. F. R. Co. v. Wilson, 21. The decision of the questions whether the 5.1A petition, showing a right to removal, signed City of New York has, under its charter, the exclu- by plaintiff's attorneys, and not sworn to, but ac- sive right to establish ferries between Manhattan companied by an affidavit by the plaintiff made Island and the shore of Staten Island on the Kill prior to the commencement of the suit, will sustain Von Kull; and, if so, whether the defendants have, a removal of the cause, the affidavit being sufficient in law and in fact, interfered with that right by under sec. 639, R. S. and the absence of an oath to setting up and operating such a ferry, does not de- the petition being an informality which the defend-pend on the Constitution or the laws of the United ant waived by not taking the objection on a motion States. to remand.
6. In a suit in a court of New York against a cor- poration of that State upon a judgment recovered in the Circuit Court of the United States for the Northern District of Ohio, merely alleging in a pe- tition for removal, that the defendant was not an inhabitant of Ohio, and was not found there, and was not personally served with process by itself or its officers, was not sufficient to raise a defense under sec. 739, R. S. of want of jurisdiction in the circuit court, without also negativing service of process on an agent of the defendant in Ohio and the actual appearance of the defendant to the suit. Prov. Sav. L. Assur. Soc. v. Ford,
7. Want of jurisdiction set up to avoid a judgment must be shown with the greatest certainty. Idem, 8. The mere fact that a suit in a state court is brought on a judgment recovered in a federal court does not entitle the defendant to removal.
10. Corporations of the United States are enti- tled as such to remove into the Circuit Courts of the United States, suits brought against them in state courts.
Union Pac. R. Co. v. Myers,
319 11. The Union Pacific Railroad Company and the Texas Pacific Railway Company are corporations of the United States though certain state and terri- torial corporations have been consolidated with them.
Idem, 819 12. În proceedings for widening a street a trial before the mayor is in its nature an inquest of valu- ations and assessments, not having the character of a suit, and a petition for removal may be filed after appeal taken to a state court. Idem,
319 13. Under such proceedings there is a distinct controversy between the city and the company, al- though many others are made parties defendant. Idem,
319 14. A suit brought by citizens of one State against citizens of the same State and citizens of another State, is not removable though there be separate defenses.
331 15. Where the cause of action is several as well as Joint, the plaintiff may elect to sue each defendant separately, or all jointly, and the defendants are not permitted to object."
16. The fact that judgment may be rendered against a part of the defendants only, does not divide a joint action in tort into separate parts any more than it does a joint action on contract.
331 17. A sult in equity brought by a citizen of one State, against a corporation of the same State, and a citizen of another State, is not removable into the Circuit Court of the United States under sec. 2 of the Act of March 3, 1875.
388 22. In a suit to foreclose a mortgage under the Connecticut statute brought against the grantee of the mortgagor, the latter is an indispensable party where it is sought to charge him with any in- sufficiency in the appraised value of the property to discharge the debt, and if he and the mortgagee are citizens of the same State the cause cannot be removed. 610
23. A joint cause of action cannot be removed by the defendants unless all join and are citizens of different States from the plaintiffs. All are af- fected by the loss by one of his right to remove. Fletcher v. Hamlet,
24. A suit begun in a state court of Louisiana by service of process on a firm through one of its mem- bers, is not so changed in character as to make it a new suit by subsequent service on another mem- ber of the firm. Idem,
25. A suit cannot be removed from a state to a federal court on the ground of citizenship of par- ties unless the plaintiff and defendant are citizens of different States at the time when the suit was brought as well as at the time when the petition for removal is filed.
32. An action of tort against several defend- ants for a wrongful seizure of the property of the plaintiff is not removable, though separate answers are filled, if a necessary defendant and the plaintiff are citizens of the same State. 899
33. The right to remove a suit on the ground of separable controversy is, by the statute, confined to the parties to that controversy.
34. Where a party by a supplemental bill seeks to avoid the effect of a judgment of a federal court, not by avoiding the judgment as between the par- ties, but by showing that as to her it is of no effect, she not having been a party to it, no question is
912 37. The right to remove a suit under the Act of March 3, 1875, is lost by a failure to file a petition "before or at the term at which said cause could be first tried and before the trial thereof," and it is not restored by a subsequent amendment of the pleadings presenting different issues.
Phoenix Mut. L. Ins. Co. v. Walrath,
924 38. A state court is not bound to surrender its jurisdiction of a suit on a petition for removal un- til a case has been made, which, on its face, shows that the petitioner has a right to the transfer. 962 39. All issues of fact made on the petition for re- moval must be tried in the circuit court, but the state court is at liberty to determine for itself whether on the face of the record a removal has been effected. If it decides against the removal its action will, after final judgment, be reviewable in the Supreme Court of the United States.
962 40. An action in which a State is a party is not re- movable from a state to a federal court on the ground of citizenship.
962 41. An action against partners for money, paid to them as such is not removable unless all the par- ties on one side of the controversy unite in the petition for removal. Idem,
962 42. A proceeding under the Act of Assembly of Virginia approved January 14, 1882, as amended by the Act of March 12, 1884, for the identification and verification of coupons tendered in payment of taxes, debts, or demands due the State is not a suit of a civil nature arising under the Constitution or laws of the United States within the meaning of the Act of Congress of March 3, 1875.
2. Where, under a contract for the purchase of an undivided interest in land, the purchaser cuts timber and removes it, and the owners of the re- maining interest take possession of it, he cannot maintain replevin against them.
3. The Pennsylvania Act of May 15, 1871, No. 249, sec. 6, concerning actions of replevin, has no opera- tion as between tenants in common.
2. Under a contract for the sale of "5,000 tons of iron rails, for shipment from a European port or ports, at the rate of about 1,000 tons per month, be- ginning February, 1880, but whole contract to be shipped before August 1, 1880," the sellers are bound to ship 1,000 tons in each month from February to June inclusive, except that slight and unimportant deficiencies may be made up in July.
3. Under a contract for the sale of 500 tons of pig iron, "shipment from Glasgow as soon as possible, shipment from Glasgow is a condition precedent. Filley v. Pope,
4. Where goods of a specified quality, not in ex- istence or ascertained, are sold, and the seller un- dertakes to ship them to a distant buyer, and, when they are made or ascertained, delivers them to a carrier for the buyer, the latter, on their arrival, has the right if they are not of the quality required by the contract, to reject them, and rescind the sale, and, if he has paid for them, to recover back the price in a suit against the seller. Pope v. Allis, 393
5. Under the laws of Kansas a sale by the vendor to defraud his creditors is not invalid as against the vendee if he purchased in good faith and for a suf- ficient consideration. 742
10. Upon examination of the entire case this court finds a design on the part of the defendant to mis- lead the complainant and lull her into security, and thus to prevent her from redeeming the property in question within the time prescribed by law; and sustains the decree of the court below allowing fur- ther time to redeem. Idem, SET-OFF.
SEE CONSTITUTIONAL LAW, 13, 28.
1. A counterclaim cannot be sustained to recover money, which the defendant alleges in his plead- ings to have been advanced by him, and used with his concurrence, to carry on a gambling transac tion. And the fact that the plaintiff believed the transaction to be legal does not affect the right of the defendant to recover on his counterclaim. Higgins v. McCrea, 764 Under the Ohio Code a counterclaim stands on 1. Custody of prisoner on habeas corpus pending the same footing and is to be tested by the same appeals. rules as if it were an independent action. Idem,
449 3. Under the decision of the Supreme Court of II- linois, a tax sale of real estate is void when a part of the tax for which it is made is illegal. Idem,
4. Under the decisions of the same court a judg- ment by default, in a tax sale proceeding, is not con- clusive upon the taxpayer, but may be impeached collaterally. Idem,
449 5. This court cannot consider an objection raised by the appellee to the decree appealed from. Idem,
449 6. Where the liability of a municipal corporation upon negotiable securities, depends upon a local statute, the rights of the parties are to be deter- mined according to the law as declared by the state courts at the time such securities were issued.
633 7. While the courts of the United States accept and apply the construction of the courts of a State of its Constitution and statutes, it is the settled doc- trine of this court, that rights accruing under one construction will not be lost merely by a change of opinion in the state court.
STATUTES.
SEE CONSTITUTIONAL LAW, 22. POLYGAMY, 1.
RAILROADS, passim.
STATE LAWS AND DECISIONS, passim.
UNION PACIFIC RAILWAY COMPANY, passim. 1. In the Revised Statutes, sec. 699 stands separate from the other parts of the "Civil Rights" Acts, and is to be construed accordingly, but with reference to the general rules of interpretation applicable to the revision.
Bowman v. Chicago & N. W. R. R. Co., 502 2. The Constitution and a statute under it will be construed together as one law.
Cincinnati, N. O. & T. P. R. Co. v. Kentucky,
414 8. Statutes must be interpreted, if possible, so as to make them consistent with the Constitution and the paramount law. 615
4. Statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the parts are separable. Idem,
5. In construing statutes which are binding on States as contracts, the words employed, if capable of more than one meaning, are to be given that meaning which it is apparent the parties intended them to have. Tennessee v. Whitworth, 830
3. The said company was not organized under the general corporation law of the District of Columbia and it derives no authority under that Act to use the streets of the City of Washington. 216 4. The Maryland charter of the said company does not confer any power to use the streets of a city as an incident of its right to run to or from such city. Idem,
SUBROGATION. SEE INSURANCE, 3.
9. The Act of the Legislature of Illinois of Febru- ary 28, 1867, is held by this court to be valid as with- in the principle that the Legislature may, by retro-TAXES. active statutes when not restricted by the Constitu- tion, legalize the unauthorized acts and proceedings of subordinate municipal agencies, where such acts and proceedings might have been previously au- thorized by the Legislature.
CONSTITUTIONAL LAW, 12, 14-29, 31, 34, 38-44, 73, 76, 77.
BONDS, 15.
EVIDENCE, 15, 16.
EQUITY, 18.
INDIANS, 2.
INJUNCTIONS, 1, 2.
INTERNAL REVENUE, 2, 6.
JURISDICTION, 11, 12.
LANDS, 22.
LICENSE, passim.
MANDAMUS, 4, 5.
MUNICIPAL CORPORATIONS.
RAILROADS, 25-27, 31, 32, 34.
STATE LAWS AND DECISIONS, 3, 4.
1. The exemption from taxation of the property of the Covington & Ohio Railroad Company, granted by the Act of the Legislature of West Virginia of March 1, 1866, incorporating said company, was a privilege personal to the corporation, which did not pass to the purchaser of the property under fore- closure proceedings.
Chesapeake and O. R. Co. v. Miller,
poration is taxable notwithstanding the payment | tle of every species of property owned by a territo- by the corporation of a tax on its property situated ry passes to the State upon its admission to the In the State. Union.
5. The law of Louisiana requiring the court, when rendering a judgment against a parish to order the levy of a tax to pay it, is properly construed with reference to the tax limit fixed by the Act of 1872. Stewart v. Police Jury of Jefferson. 588 6. A judgment creditor, upon a judgment ob- tained on a contract made subsequent to the pass- age of the Act of 1872,is not entitled to a mandamus to compel the levy of a tax in excess of the limit fixed by that Act. Idem,
7. Land, owned by a religious corporation or so- ciety in the District of Columbia, which is neither actually occupied for a church building, nor rea- sonably needed and actually used for the convenient enjoyment of such building as a church, is not ex- empt from taxation, whether used for any other purpose or not.
Gibbons v. District of Columbia,
680 8. In the exercise of its power to levy taxes in the District of Columbia for district purposes, Congress may exempt certain classes of property, or tax them at different rates.
9. The right of a State in which personal property is situated to tax it is not affected by the fact that the owner resides in another State, which taxes him for the same property as a part of his general estate attached to his person.
1. Where the acts or omissions of a trustee are such as to show a want of reasonable fidelity, a court of equity will remove him.
212 2. Where trust funds are to be invested by the 10. Products of a State, though intended for ex-breach of trust, and is ground for removal. trustee, neglect to invest constitutes of itself a port to another State and partially prepared for 212 that purpose by being deposited at a place or port of shipment within the State, are liable to be taxed like other property within the State. Idem,
715 11. Exportation is not begun until they are com- mitted to the common carrier for transportation out of the State to the State of their destination, or have started on their ultimate passage to that State. Until that time they are taxable as a part of the general mass of property in the State, though they are not taxable as exports.
12. The carrying of property in carts or vehicles, or even floating it, to the depot where the journey is to commence is no part of the journey.
13. A lawful tender of payment, as well as an actu- al payment, of taxes deprives the collecting officer of all authority for further action to enforce pay; ment, and renders every subsequent step illegal
14. The taxes of the Blue Ridge Railroad Compa- ny are not payable in the revenue bond scrip issued by the State of South Carolina in exchange for the bonds of the company guarantied by the State. Hagood v. Southern, 805
15. The holder of revenue bond scrip, issued un- der the Act of the Legislature of South Carolina of March 2, 1872, has no legal right to have such scrip received for taxes, unless he owes taxes for which it is receivable. There is no breach of contract until a tender for taxes due from the holder has been refused. Idem,
805 16. The charter exemption from taxation of the capital stock of the Nashville, Chattanooga & St. Louis Railroad Company, applies to its shares of stock in the hands of individual stockholders.
UNION PACIFIC RAILWAY COM- PANY.
1. In a controversy between the Union Pacific Railway Company and the United States arising un- der the Act of July 1, 1862, it is immaterial whether the amount actually found to be due for transpor- tation of the mails, at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service." as re- quired by said section, is ascertained upon evi- dence comparing them with the rates previously determined and fixed by the company, or with those allowed by the accounting officers of the gov- ernment. The only material thing is to adjudge what is due according to the rule prescribed by the statute.
Union Pac. R. Co v. United States,
2. The bridge of the Union Pacific Railway Com- pany between Council Bluffs and Omaha is subject to the provisions of the Act of July 1, 1862, as to the rates to be paid by the government for transporta- tion service over it. Idem,
1. To constitute usury, there must be an intention. knowingly to contract for or to take usurious inter- est.
2. When an agent who is authorized by his prin- cipal to lend money for lawful interest exacts for his own benefit more than the lawful rate, without authority or knowledge of his principal, the loan is not thereby rendered usurious.
5. The registration officer must either require such disqualifications to be negatived by a modifi- cation of the oath, the form of which is given in the territorial Act, or otherwise to satisfy himself by due inquiry that such disqualifications do not exist. Idem, 47 6. The plaintiffs in actions seeking to recover damages for being unlawfully deprived of their right to be registered as voters, must allege in their declarations, as matter of fact, that they were le- gally qualified voters, or, that allegation being omitted, must allege all the facts necessary to show as matter of law, that they were qualified voters; and to this end it is necessary that they should neg- ative all the disqualifications pronounced by the
4. Where the testator devised to a brother "lot 6" in a certain block, and disposed of the remainder of his estate to others, and it appeared that he did not own "lot 6" but did own lot 3in said block, and that lot 3 was otherwise properly described in the will, said lot 3 is held by this court to have been lawful- ly devised. Idem, 860 WITNESSES.
SEE CONSTITUTIONAL LAW, 69, 70.
1. Contradictory declarations of a witness, wheth- er oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circum- stances in such a way as to give him full opportuni- ty for explanation or exculpation.
Steamboat Charles Morgan v. Kouns, 2. The exception in sec. 858, R.
that patties may testify in federal to the provision courts in their own behalf cannot be extended by the court so as to exclude parties from testifying in their own be half against assignees in bankruptcy.
3. Where, in an action by one of three partners against the government, the other two partners testify in behalf of the claimant that they have no interest in the claim except as shown by a certain memorandum, such witnesses are not estopped thereby from showing, in an action by them against the assignee of the claimant, that they had an in- terest in the claim, further than was shown by such memorandum.
« ForrigeFortsett » |