and Affiliated Bands of Indians were by the United States located with-
in the boundaries of the lands hereinbefore described; " that they "now
number not more than one thousand and sixty persons;" and that the
location of the Wichitas and Affiliated Bands within said boundaries
was "for the purpose of affording them permanent settlement therein,"
adjudged that the lands in dispute had been acquired and were held
by the United States in trust for the purpose of settling Indians there-
on, and that whenever that purpose was abandoned as to the whole or
any part thereof, then all the lands not so devoted to Indian settle-
ment should be held in trust by the United States for the Choctaw and
Chickasaw Indians exclusively. It was also adjudged that the mem-
bers of the Wichita and Affiliated Bands, not exceeding one thousand
and sixty, were equitably entitled to one hundred and sixty acres of
land each out of the lands in dispute, and that the same should be set
apart to them by the United States, due regard being had to any im-
provements made thereon by them respectively for their permanent
settlement. It was further adjudged that the Choctaw and Chickasaw
Nations were in law and equity entitled to and were the owners of such
of the lands ceded to the United States by the Wichita and Affiliated
Bands as remained, after satisfying the provisions for the Wichitas and
Affiliated Bands, and that in the event of the sale thereof by the United
States, the Indian plaintiffs should be entitled to and receive the pro-
ceeds of such sale. This judgment being brought here on appeal, this
court, in its opinion, carefully reviewed all the legislation, and all the
Indian treaties on the subject, and, as a result, held that for the rea-
sons given the decree must be reversed with directions to dismiss
the petition of the Choctaw and Chickasaw Nations, and to make
a decree in behalf of the Wichita and Affiliated Bands of Indians
fixing the amount of compensation to be made to them on account of
such lands in the Wichita Reservation as are not needed in order to
meet the requirements of the act of Congress of March 2, 1895, c. 188,
and for such further proceedings as may be consistent with law and
with this opinion. United States v. Choctaw Nation and Chickasaw
Nation, 494.
In July, 1895, Harold F. Hadden and James E. S. Hadden brought an ac-
tion in the New York Supreme Court for the city and county of New
York, against the Natchaug Silk Company, Michael F. Dooley, person-
ally and as receiver of the First National Bank of Willimantic, John
A. Pangburn, and others, including William I. Buttling, sheriff of
Kings County. The complaint alleged certain fraudulent and collu-
sive proceedings between the Natchaug Silk Company, Dooley, receiver
of the First National Bank of Willimantic, and John A. Pangburn, and,
under a prayer of the bill, an injunction pendente lite was granted re-
straining the sheriff of Kings County from selling property of the silk
company in his possession as sheriff upon executions against said com-
pany in favor of John A. Pangburn or Dooley, as receiver, and restrain-
ing Pangburn and Dooley from further proceedings at law against the
property of the silk company in the State of New York. The action
was removed to the Circuit Court of the United States for the South-
ern District of New York, and repeated motions to dissolve the tem-
porary injunction were there made and denied, and the order of the
Circuit Court denying the motions was, on appeal, affirmed by the Cir-
cuit Court of Appeals. Subsequently, the taking of testimony in the
case having been closed, the defendants Dooley and Pangburn made
another motion, upon the plenary proofs, to dissolve the injunction,
and this motion was granted, after hearing, by Circuit Judge Lacombe,
on November 27, 1896. The case came to final hearing in the Circuit
Court, and resulted in the decree dismissing the bill on January 27,
1898. Upon appeal by the complainants the Circuit Court of Appeals
reversed the decree in part and affirmed it in part. From this decree
of the Circuit Court of Appeals the complainants appealed to this court,
on the ground that the decree should have adjudged to the complain-
ants priority of lien on all the goods in dispute; and the defendants
appealed on the ground that the Circuit Court of Appeals erred in
reversing the decree of the Circuit Court. The facts, as stated in
the opinion of Circuit Judge Shipman, were substantially these: On
April 23, 1895, the Natchaug Silk Company, a Connecticut corporation,
owed the First National Bank of Willimantic, a national banking asso-
ciation located in Connecticut, over $300,000, and was entirely insol-
vent. In consequence of this indebtedness the bank suspended, and
Michael F. Dooley was appointed its receiver on April 26, 1895, by the
Comptroller of the Currency. On April 23, 1895, J. D. Chaffee, as pres-
ident and general manager of the silk company, in consideration of and
to reduce this indebtedness, sold to the bank 107 cases of manufactured
silk, the value of which cannot be accurately ascertained, but which is
said to be about $20,000. They were then, or had been, shipped to
New York, where they were subsequently taken by Dooley into his
possession, and removed to Brooklyn. On May 8, 1895, he, as receiver,
attached the goods by attachment, which was subsequently dissolved.
On May 30, 1895, he sold and assigned to Pangburn, who is a resident
of the State of New York, notes of the silk company, not paid by this
transfer, amounting to about $67,000, for the nominal consideration of
$200, which sale Dooley made by virtue of an order of the Circuit Court
of the Southern District of New York, with the approval of the Comp-
troller of the Currency, for the purpose of enabling a suit to be brought
in the State of New York, by a resident of that State, in his own name,
against the silk company, a foreign corporation. Pangburn did bring
suit on said notes against the silk company on June 1, 1895, in the
proper state court, and obtained an order of attachment, a judgment
for the full amount thereof, and an execution which was levied by the
sheriff of Kings County upon these cases of silk. The sale was stopped
by this injunction order. On June 6, 1895, the complainants, who are
creditors of the silk company, brought suit against it in a court of the
State of New York, and obtained an order of attachment, under which
the sheriff of Kings County levied an attachment upon the same silk.
On June 6, 1895, the complainants, who are creditors of the silk com-
pany to the amount of about $22,000, brought suit against it in a court
of the State of New York, and obtained an order of attachment un-
der which the sheriff of Kings County levied an attachment upon the
same silk.
On July 2, 1895, the complainants brought a bill in equity,
upon which the injunction order in question in this suit was issued.
Held, that the decree of the Circuit Court of Appeals, in so far as it
reversed the decree of the Circuit Court, should be reversed, and the
decree of the Circuit Court, dismissing the bill of complaint, should
be affirmed. Dooley v. Hadden, 646.
See CASES AFFirmed and FoLLOWED, 1.
An assignment in insolvency does not disturb liens created prior thereto
expressly or by implication in favor of a creditor. Joyce v. Auten, 591.
The provision in the statutes of New York that "no life insurance com-
pany doing business in the State of New York shall have power to de-
clare forfeited or lapsed any policy hereafter issued or renewed, by
reason of non-payment of any annual premium or interest, or any por-
tion thereof, except as hereinafter provided," does not apply to or con-
trol such a policy issued by a corporation of New York in another State,
in favor of a citizen of the latter State, but is applicable only to busi-
ness transacted within the State of New York; and in such case the
rights of the parties are measured by the terms of the contract. Mu-
tual Life Ins. Co. of New York v. Cohen, 262.
1. In marine insurance the general rule is firmly established in this court
that the insurers are not liable upon memorandum articles except in
case of actual total loss, and that there can be no actual total loss when
a cargo of such articles has arrived in whole or in part, in specie, at the
port of destination, but only when it is physically destroyed, or its
value extinguished by a loss of identity. Washburn & Moen Manufac-
turing Co. v. Reliance Marine Insurance Co., 1.
2. In this case the entire cargo was warranted by the memorandum clause
free from average unless general, and by a rider, free from particular
average, but liable for absolute total loss of a part. Under these pro-
visions the insurers were not liable for a constructive total loss, but
only for an actual total loss of the whole, or of a distinct part. Ib.
3. The carrying vessel was stranded, and, having been got off in a shattered
condition, was subsequently condemned and sold on libels for salvage;
most of the cargo was saved and reached the port of destination in
specie, a portion damaged, and a substantial part wholly uninjured.
Held, That the owner could not recover for a constructive total loss,
nor for an actual total loss of the whole. Ib.
4. No right to abandon existed, and the insurers explicitly refused to ac-
cept the abandonment tendered. If the cargo saved was carried from
the port of distress to the port of destination by the insurers, which
was denied, this was no more than, by the terms of the policy, they
had the right to do without prejudice, and could not be held to amount
to an acceptance. Ib.
5. The Circuit Court did not err in declining to leave the question of actual
total loss of the entire cargo, or the question of acceptance, to the
jury. Ib.
1. The Wabash Railroad Company was a consolidated railway corporation,
separately organized under the laws of Illinois and the laws of Mis-
souri. It became indebted to Tourville, who was in its employ, for a
small sum for which he sued it before a justice of the peace for St.
Louis. The complicated proceedings which followed are fully set forth
in the opinion of this court. The judgment of the trial court being
set aside by the Circuit Court, this court holds that the judgment of
the Circuit Court was undoubtedly final; that it completed the litiga-
tion; and that it left nothing to the lower court but to enter the judg
ment which it directed. Wabash Railroad Co. v. Tourville, 322.
2. The holding by the Supreme Court of Illinois that the judgment was
foreign to that State, and therefore not subject to garnishment there,
is sustained by the weight of authority. Ib.
A. JURISDICTION OF THE SUPREME Court.
1. Proceedings to limit the liability of ship-owners are admiralty cases;
the decrees of the Circuit Courts of Appeal therein are made final by
the sixth section of the judiciary act of March 3, 1891; and appeals to
this court therefrom will not lie. Oregon Railroad &c. Co. v. Balfour, 55.
2. An assignment of error in this court that the decision of a state Supreme
Court was inconsistent with certain paragraphs of an alleged brief put-
ting forward a Federal question, does not amount to a compliance with
the requirements of § 709 of the Revised Statutes. Chapin v. Fye, 127.
3. Where a Federal question is raised in the state courts, the party who
brings the case to this court cannot raise here another Federal ques-
tion, which was not raised below. Ib.
4. Where the right of removal depends upon the existence of a separable
controversy, the question is to be determined by the condition of the
record in the state court at the time of the filing of the petition to re-
move. Chesapeake & Ohio Railway Co. v. Dixon, 131.
5. In an action of tort, the cause of action is whatever the plaintiff declares
it to be in his pleading, and matters of defence cannot be availed of as
ground of removal. Ib.
6. When concurrent negligence is charged, the controversy is not separable,
and as the complaint in this case, reasonably construed, charged con-
current negligence, the court declines to hold that the state courts
erred in retaining jurisdiction. Ib.
7. The state courts of Michigan having recognized this action as a proper
one under the laws of that State for the relief sought by the plaintiff,
this court has jurisdiction to consider the questions of a Federal nature
decided herein. Scranton v. Wheeler, 141.
8. That a Federal statute was construed unfavorably to one of the parties
to a suit is no ground for jurisdiction by this court, unless such con-
struction was not only unfavorable, but was against the right, etc., spe-
cially set up and claimed under the statute; in which case the party so
setting up and claiming the right under the statute can obtain a review
here. Kizer v. Texarkana & Fort Smith Railway Co., 199.
9. The controversy between the State of Maryland and the estate of the
ward having been finally settled in favor of the State, and the only Fed-
eral question presented in this case having been determined in favor
of the State, this court declines to consider the purely local question
whether a judgment binding the estate binds also the sureties on the
guardian's bond. Baldwin v. Maryland, 220.
10. In an action by a chattel mortgagee of certain cattle against the pur-
chaser of the same at a marshal's sale upon execution, the question was
whether a chattel mortgage upon a portion of such cattle, which did
not identify the particular animals covered by it, was good as against
the purchaser of the entire lot at the marshal's sale. Held: That this
presented no Federal question. Avery v. Popper, 305.
11. With respect to writs of error from this court to judgments of state courts,
in actions between purchasers under judicial proceedings in the Federal
courts and parties making adverse claims to the property sold, the true
rule is this: That the writ will lie, if the validity or construction of the
judgment of the Federal court, or the regularity of the proceedings
under the execution, are assailed; but if it be admitted that the judg-
ment was valid and these proceedings were regular, that the purchaser
took the title of the defendant in the execution, and the issue relates
to the title to the property as between the defendant in the execution,
or the purchaser under it, and the party making the adverse claim, no
Federal question is presented. Ib.
12. The judgment of a state court, reversing the judgment of an inferior
court, on account of its refusal to change the venue of the action, and
remanding the case for further proceedings, is not a final judgment to
which a writ of error will lie. Cincinnati Street Railway Company v.
Snell, 395.
13. Defendant being convicted of murder, carried the case to the Supreme
Court of the State, but made no claim there of a Federal question.
Held: That before applying to a Circuit Court of the United States for
a writ of habeas corpus he should have exhausted his remedy in the
state court, either by setting up the Federal question on his appeal to
the Supreme Court, or by applying to the state court for a writ of
habeas corpus. Davis v. Burke, 399.
14. The constitution of Idaho, providing for the prosecutions of felonies
by information, is so far self-executing that a conviction upon informa-
tion cannot be impeached here upon the ground that defendant has been
denied due process of law. Ib.
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