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sacks, which on the delivery of the last load were handed in to the Secretary who, footing up the amounts, gave him a receipt for the same, which defendant delivered to Davis, receiving pay for 131,995 pounds of wheat, where the actual receipt as shown by the cards was but 111,995 pounds, the Secretary having made the mistake of 20,000 pounds in adding up the amounts. On discovering his error three days after, the Secretary went to the defendant, taking with him the cards and his books, and pointing out the mistake asked defendant to rectify it. On the subsequent delivery of the 340 sacks to Davis by the plaintiff, he then learning the actual weight, demanded the return of the amount paid for the 20,000 pounds called for by the receipt but not delivered,-when plaintiff paid him $425 and $30.75 interest,-which amount plaintiff in turn demanded of defendant, and upon refusal this action was brought for the recovery of the same. The Court below found that the payment of the $425 with interest, was made by plaintiff without the knowledge or consent of defendant at the time and that he had not since then ratified the same;and also at the time of such payment a negotiation was pending between Davis and defendant for the payment by the latter of the difference between the amount of wheat delivered and that receipted for,-defendant declining to pay such amount unless satisfied by vouchers and statements that Davis was out such amount. That prior to bringing this action plaintiff demanded of defendant the payment of the sum paid to Davis, which was refused, whereupon KEYSER, District Judge, found as a conclusion of law that plaintiff was entitled to judgment for $455.75 and costs.

IN the case of Unger vs. Roper, action was brought to recover easterly third of fifty-vara lot No. 1,353, on south side of Turk between Hyde and Larkin streets in the city of San Francisco. The answer was a general denial and on trial before Justice McKINSTRY, District Judge, and a jury a verdict was had for defendant, which verdict plaintiff claims is unsupported by the evidence. Surprise is claimed by the introduction of evidence not true in point of fact,--also that

"there was irregularity in the proceedings of the Court or abuse of discretion whereby the plaintiff was prevented from having a fair trial." Appeal dismissed and order denying new trial affirmed. The opinion filed November 6, 1877 stands as the opinion of the Court.

THE case of Powers vs. Leith, decided on April 10th, presents a tangle of title to land not often seen even in California, and confirms the doctrine that even a United States Patent may be reviewed and controlled by a District Court. The appeal comes up from the 21st District [(Lassen county), with J. S. Chapman and J. W. Hendrick, attorneys for plaintiff and respondent, and E. V. Spencer for defendant and appellants. Wm. Leith, the defendant, made a homestead entry of land in Lassen county, on August 1, 1873 (No. 304), in the U. S. Land Office at Susanville. At the same time a controversy was pendng on same land between E. W. Bartlett and John Baxter-Bartlett claiming under homestead entry (No. 86) of March 11, 1872, and Baxter as a pre-emption. Hence the new homestead entry of Leith was declared void by the Land Commissioner that of Bartlett being still uncancelled. Leith being notified of this, and not showing cause, report was made to the Commissioner, who cancelled said entry on April 1, 1874. Bartlett's and Baxter's claims were both also cancelled on March 30, 1874. On June 13, 1874-the land being clear of

all claims of record, -the plaintiff, Joseph Powers, filed his declaratory statemant for a pre-emption,-alleging settlement March 1, 1874-and he continued to live on and cultivate the land till the fall of 1875, when Leith took possession and excluded him. On July 13, 1874,-just one month after Powers' filing of his declaratory statement-Leith made a second homestead entry (No. 391), on the land, and on July 30th forwarded an affidavit to the Land Commissioner alleging entire good faith in his first homestead entry and no knowledge of any dispute of title, and asking that his second entry be set aside, and his first re-instated, as he had made valuable improvements, and which the Commissioner,--without notice to Powers, but entirely ex parte,-did. Upon learning this, Powers made affidavit averring that the Commissioner had been imposed upon and deceived by Leith's affidavit, which was false, and that he (Powers) had no knowledge of it, or chance to be heard, and applied to the Commissioner for an investigation, but was refused. He then applied to the Secretary of the Interior, who sustained the Commissioner's refusal, who thereupon cancelled Powers' declaratory statement. Leith then took full possession of the land and soon commuted, made final proof and payment, and received his patent. Meantime he filed a declaration of homestead under the State statute. Powers then made peremptory claim for the land, and on August 30, 1876, tendered to Leith the $200, paid the United States for the land, and $30 costs and expenses and fees, which Leith refused; whereupon Powers brings action in District Court, GOODWIN, Judge, and demands judgment, declaring Leith trustee of the title, and a decree compelling him to give deed to plaintiff and costs of suit. The Court gave judgment for plaintiff, declaring Leith trustee of the title for the benefit of plaintiff, and directing him to make deed to him for the

land upon payment by plaintiff of $230, and defendant to pay Court costs, $64.25, and restore the premises. Motion by defendant for new trial was overruled, from which defendant appealed September 14, 1877. The judgment and order are now affirmed.

THE case of C. J. Zeinwaldt vs. the Sacramento City Railway Company, decided April 10th, was an appeal by the defendant from a judgment of the Sixth District Court of Sacramento county, in which Messrs. Curtis & Clunie were attorneys for appellant, and Henry Starr attorney for respondent. Zeinwaldt sued the railway company on five notes and an account amounting to $3,363.90, given him by the company for work as gardener done by him during three years, in the "East Park," owned by the said railway company, in connection with their road. The company set up a denial, and that Zeinwaldt owed them for flowers sold at said Park and not paid for,--also urged limitation of their corporate powers in such a direction. The Court found for Zeinwaldt for full amount claimed-$3,341,82 and costs $29.75--and also denied motion for a new trial, from which the company appealed. This appeal has just been dismissed by the Supreme Court, with remittitur forthwith.

Circuit Court of the United States.

DISTRICT OF NEVADA

THE EUREKA CONSOLIDATED MINING COMPANY

VS.

THE RICMMOND MINING COMPANY.

1. JURISDICTION AFTER BILL DISMISSED INJUNCTION.-Where an injunction against working a mine pending a suit in equity has been dissolved by decree upon final hearing, the bill dismissed without qualification, the decree enrolled and an appeal taken in such form as to operate as a sup ersedeas, the Court rendering the decree has no jurisdiction, thereafter, to restrain the successful party from working the mine pending the appeal.

2. INJUNCTION-STATUTORY PROVISIONS.-Section 1182, Revised Statutes of Nevada, authorizing the Court to require the complainant to give security for injuries resulting to defendant from his acts pending the litigation, and in default thereof to dissolve any injunction in his favor, relates to cases still pending, not to cases already in judgment and closed. SAWYER, Circuit Judge, HILLYER, District Judge, concurring.

The Eureka Consolidated Mining Company brought an action against the Richmond Mining Company to recover

possession of a portion of a silver mine. It also filed a bill on the equity side of the Court against the same defendant, alleging ownership of the portions of the mine sought to be recovered in the action at law; that defendant was in possession, working the mine and carrying away the ore; and praying an injunction pending the litigation, and that upon the hearing the injunction be made perpetual. A temporary injunction was issued. The defendant in these actions thereupon filed a crossbill in the equity suit, alleging that the complainant in the original bill was, also, in possession of and working a portion of the mine in controversy, and praying an injunction which was also temporarily granted. The parties then waived a jury in the law case, and the law case was tried, and the bill and cross-bill in equity were heard at the same time during the March Term, 1877, upon the same evidence before Mr. Justice Field, Sawyer, Circuit Judge, and Hillyer, District Judge, the cases having been prepared and argued on both sides with consummate elaboration and ability. The Court found for the plaintiff in the law case, and gave judgment for the possession of the mine; and in the equity case a decree was entered for the complainant in the original bill, making the injunction perpetual, and a decree dismissing the cross-bill and dissolving the temporary injunction issued thereon and for costs. The decree of dismissal was absolute without any limitation or qualification. The case is reported in 4 Sawyer, 302, where the facts are fully stated.

Both parties had drifts running in various directions through the lode or different levels. The Richmond Company took an appeal in the equity case, sued out a writ of error in the action at law, and gave the bonds necessary to operate as a supersedeas.

After the appeal, the Eureka Company continued to work the mine, and extended its drift on one of its lower levels, so so as to cut the body of ore found in what is known as the Potts Chamber, as indicated in the report of the case in 4 Sawyer, at page 304-being the body of ore which the Richmond Company was working at the time of the institution of the actions; but did not enter or take possession of, or interfere with any of the Richmond Company's shafts, winzes, or drifts. Thereupon, at the March Term, 1878, of the Circuit Court, the Richmond Company, upon affidavits stating the appeal supersedeas, and the acts of the Eureka Company in working the mine in the disputed territory, applied for an order restraining the further working of the mine pending the appeal. It was claimed, on the argument, that the working of the mine, although not a technical, was a substantial violation of the supersedeas; and that the Court, for the purpose of pre

serving the subject matter in dispute pending the litigation, should issue the order sought. Separate notices of the motion were given in the suit in equity and action at law. We will consider the equity case first. In this suit, upon the final hearing, the preliminary injunction was dissolved, and the cross-bill of the Richmond Company dismissed absolutely without limitation or qualification, the decree enrolled, and the term adjourned. An appeal to the Supreme Court was taken in proper time and form, to operate as a supersedeas; but there was nothing to supersede, except the decree for costs. Court granted no affirmative relief on the cross-bill. It simply denied the relief asked by the Richmond Company, and dismissed the bill out of Court. The Eureka Company was not doing anything under or by virtue of the decree. It was not proceeding to collect the costs either by execution or otherwise. The case was ended in this Court, the jurisdiction exhausted, and the term adjourned. There was no longer any case pending in the Court in which any order could be made. The Court, therefore has no further jurisdiction in the case except to execute the decree for costs when the supersedeas is removed, if it should be removed, or till the decree is reversed on appeal to the Supreme Court, and the cause thereby reopened upon the receipt of the mandate from the Appellate Court. To issue a restraining order, would be to exercise a new original jurisdiction without any suit pending in which it could be issued. The cases of Galloway vs. The Mayor, etc., of London, 3 De Gex, Smith and Jones, 60, and Coleman vs. The Hudson River Bridge Company, 5 Blatch., 56, are in point. The former case was a bill to restrain the corporation of London from taking certain property under statutory powers. The Master of the Rolls dismissed the bill, and the order of dismissal was affirmed on appeal, the Lords Justices differing in opinion. An appeal having been taken to the House of Lords, it being probable that the corporation would take the property, and pull down the building pending the appeal, the appellant applied to the Lords Justices for an injunction to restrain the corporation from proceedings till the appeal could be heard. Although the Lords Justices expressed themselves as being as willing as they ought to be to grant the injunction, it was denied on the ground that their jurisdiction was gone on the dismissal of the bill. Lord Justice Turner said: "I cannot but think that by reason of the dismissal of the bill, the power of the Court is gone. I think that the plaintiff, if he intended to appeal to the House of Lords, ought, at the hearing, to have asked the Court so to frame its

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