Massachusetts this court holds that as Federal questions were raised on
writ of error to the Supreme Court of that State, that was sufficient to
give this court jurisdiction. Rothschilds v. Knight, 334.
15. The objection that the writ of error should have been directed to the
Supreme Court, and not to the Superior Court, is answered by Mc-
Donald v. Massachusetts, 180 U. S. 311. Id.
16. To what actions the remedy of attachment may be given is for the legis-
lature of a State to determine: the power of counsel extends to con-
senting to amendments authorized by the law of the State. Ib.
17. The contention that the debts due to plaintiffs in error by certain citi-
zens of Massachusetts were not subject to attachment in that State be-
cause their situs was in New York cannot be maintained. Ib.
18. The preference given by McKeon to plaintiffs in error was consummated
in Massachusetts; and therefore the proceedings had in New York
were immaterial. Ib.
19. This court, when reviewing the final judgment of a state court up-
holding a state enactment alleged to be in violation of the contract
clause of the Constitution, possesses paramount authority to deter-
mine for itself the existence or the non-existence of the contract set
up, and whether its obligation has been impaired by the state enact-
ment; but it is the duty of this court to follow the decision of the
state court when the question is one of doubt and uncertainty.
Wilson v. Standefer, 399.
20. The sole question for the consideration of this court in this case is,
whether the Supreme Court of Texas erred in overruling the conten-
tion of the plaintiff in error that the State was precluded by contract
from changing its mode of procedure in respect to purchasers in de-
fault; and this court agrees with the Supreme Court of Texas that
no contract rights of a purchaser under the act of July 8, 1879, were
impaired by the subsequent act of August 20, 1897; that thế 12th sec-
tion of the act of 1879, was not, in legal contemplation a stipulation
by the State that the only remedy which might be resorted to by the
State was the one therein provided for; that the distinction between
the obligation of a contract and a remedy given by the legislature to
enforce that obligation exists in the nature of things, and, without
impairing the obligation of the contract, the remedy may be modified
as the wisdom of the nation may direct. Ib.
21. The propositions in this case involving Federal questions were duly
raised below. Tullock v. Mulvane, 497.
22. Previous to the bringing of the suit in the state court upon the bond,
by stipulation filed in the equity cause in the United States court,
upon which an order of the court was entered, the bill of complaint
had been dismissed as to all the defendants but Mulvane, and it was
expressly agreed that all demand for relief by way of specific perform-
ance should be withdrawn. Ib.
23. The Circuit Court of Appeals correctly decided that the necessary ef-
fect of this agreement was to withdraw from the case all controversy
on the subject of the injunction. As by the stipulation Mulvane had
not waived any right of action by reason of damages caused by the
injunction if any, but on the contrary his rights were expressly saved,
and as the stipulation was made the basis of an order of the court
which had the necessary effect to dismiss from the cause all the
grounds upon which alone the rightfulness of the injunction could
have been asserted, there was a final decision, within the import of
the condition of the bond, that the injunction ought not to have been
granted. Ib.
24. The claim of immunity from liability for attorney's fees as one of the
elements of damage under the injunction bond presented a Federal
question, which was incorrectly decided by the court below in holding
that it was proper to award the amount of such fees in enforcing the
bond. Ib.
25. A bond given in pursuance of the law of the United States is governed,
as to its construction, not by the local law of a particular State, but
by the principles of law as determined by this court, and operative
throughout the courts of the United States. Ib.
26. The Supreme Court of Missouri having necessarily decided that the
Kansas City Court of Appeals, in passing upon the claim of the minor-
ity in this case, was the final court of Missouri where such question
could be decited, it follows that the writ of error properly ran to the
Kansas City Court of Appeals, and that the claim of absence of juris-
diction was without foundation. Missouri, Kansas & Texas Railway
Co. v. Elliott, 530.
27. For the reasons giver in the opinion of the court in Tullock v. Mulvane,
ante, 497, that there was errer committed by the Kansas City Court
of Appeals, in affirming the action of the trial court in allowing in the
judgment rendered by it, attorneys' fees as an element of damagè
upon the injunctron bond, contrary to the controlling rule on this sub-
ject enunciated by this court, by which the courts of the United
States are governed in requiring the execution of such instruments.
Ib.
28. If a claim is made in the Circuit Court that a state enactment is invalid
under the Constitution of the United States, and that a claim is suis-
tained or rejected, this court may review the judgment, at 'the in-
stance of the unsuccessful party. Connolly v. Union Sewer Pipe Co.,
540.
29. If the alleged combination in this case was illegal, it would not follow
that they could, at common law, refuse to pay for pipes bought for
them under special contracts. Ib.
30. The contracts between the plaintiff and the respective defendants were
collateral to the agreement between the plaintiff and other corpora-
tions, etc., whereby an illegal combination was formed for the sale of
sewer pipe. Ib.
31. The first special defence in this case, based alone upon the principles
of the common law, was properly overruled. Ib.
32. The special defence, based upon the act of Congress of July 2, 1890,
26 Stat. 209, was also properly rejected. That act does not declare
illegal or void any sale made by such combination or its agents of prop-
erty acquired for the purpose of being sold, such property not being at
the time in the course of transportation from one State to another, or
to a foreign country; and the buyer could not refuse to comply with his
contract of purchase upon the ground that the seller was an illegal com-
bination, which might be restrained or suppressed in the mode pre-
scribed by the act of Congress. Ib.
33. This suit was upon a bond taken by a Circuit Court of the United
States from its clerk, to secure the proper performance of his duties,
and the Circuit Court could take cognizance of it, independently of the
citizenship of the real parties in interest, as it was a suit arising under
the laws of the United States, of which the Circuit Court was entitled
to take original cognizance, concurrently with the courts of the State,
even if the parties had been citizens of the same State; and, although
the petition shows a case of diverse citizenship, jurisdiction was not
dependent upon such citizenship. Howard v. United States, 676.
34. That the clerk of the court was authorized, with the sanction or by or-
der of the court, to receive money paid into court in a pending cause,
is clearly to be implied from the legislation of Congress referred to in
the opinion of the court. Ib.
JURISDICTION, SURVIVAL OF.
1. A tort by which the estate of the defendant was not increased, and the
estate of the plaintiff damaged only as an indirect consequence of the
alleged wrongful act of the defendant, does not, either at common law
or by the statutes of Virginia, survive the death of the wrongdoer.
Iron Gate Bank v. Brady, 665.
2. The plaintiff elected to go into court on an action sounding in tort, and
it must abide by its election. Ib.
3. A decree of the District Court of the United States for the Northern
District of California, rendered in 1855, was affirmed by this court, and
remanded to the District Court, where a final decree was entered in
1859. Subsequently in 1899, after a large amount of intermediate liti-
gation, a petition of intervention was filed in the District Court in the
original case, praying that the decree of 1859 might be ordered to be
executed, the proceedings having been originally begun in 1852 before
the Board of Land Commissioners of California. A demurrer was filed
to this petition, which was sustained and the petition dismissed. This
was followed by another similar petition filed in 1900 which was also
dismissed, and an appeal taken to this court. Held that the appeal
originally allowed to this court by the act of 1851 was repealed in
1864, and an appeal allowed to the Circuit Court of the United States;
that this act was repealed by the act of 1891, which provided for an
appeal to the Circuit Court of Appeals, and that the appeal to this
court must therefore be dismissed. Gwin v. United States, 669.
JURISDICTION OF CIRCUIT COURT.
LICENSE TAX.
See CONSTITUTIONAL LAW, 3.
LIMITATIONS (STATUTE OF).
1. To a bill in equity by a receiver of a national bank to recover an assess-
ment made by the Comptroller of the Currency to the amount of the
par value of the shares formerly owned by one of the stockholders, de-
fendant pleaded the statute of limitations. The statute provided that
actions upon contracts in writing should be brought within five years,
but that actions brought upon contracts not in writing or upon liabili-
ties created by statute should be brought within four years. Held,
That a bill to recover the assessment in question was not brought
upon a contract in writing, but upon an implied contract not in writ-
ing, or upon a liability created by statute, and that the suit was barred.
McDonald v. Thompson, 71.
See JURISDICTION OF THIS COURT, 12, 13.
1. On the facts, as stated in the opinion of the court, the city of Santa Cruz
is estopped to dispute the truth of the recitals in the bonds in suit in
this case, which stated that they were issued in pursuance of the act
of California of 1893, as well as in conformity with the constitution of
California, authorizing it to incur indebtedness or liability with the as-
sent of two thirds of the qualified voters at an election held for that
purpose, and that all acts, conditions and things required to be done
precedent to issuing the bonds had been properly done and performed
in due and lawful form as required by law. Waite v. Santa Cruz, 302.
2. The Circuit Court having correctly found that the parties who placed
said bonds in the plaintiff's hands were bona fide purchasers, without
notice of anything affecting the truth of the recitals in them, the city
cannot escape liability by reason of the fact, disclosed by its ordi-
nances, that the eighty-nine first mortgage bonds of the Water Com-
pany assumed by the city, were included in its refunding scheme. Ib.
3. As to the question whether the person who signed said bonds was or
was not, at the time of the signature, the rightful mayor of Santa
Cruz, this court holds-(1) that the acts of a de facto officer are valid
as to the public and third persons, although it is sometimes difficult
to determine whether the evidence is such as to warrant a finding that
a particular act or acts, the legality of which may be in issue, were
those of a de facto officer; (2) That a de facto officer may be defined as
one whose title is not good in law, but who is, in fact, in the unob-
structed possession of an office, and discharging its duties in full view
of the public, in such manner and under such circumstances as not to
present the appearance of being an intruder or usurper; (3) That in
such a case third persons, having occasion to deal with him in his ca-
pacity as such officer, are not required to investigate his title, but may
safely deal with him upon the assumption that he is a rightful officer;
(4) That if they see him publicly exercising such authority, and if they
ascertain that it is generally acquiesced in, they are entitled to treat
him as such officer, and, if they employ him as such, they ought not to
be subjected to the danger of having his acts collaterally called in
question. Ib.
4. As the plaintiff does not own the bonds or coupons in suit in this case,
but holds them for collection only, the Circuit Court was without ju-
risdiction to render judgment upon any such claim or claims. Ib.
1. To a bill in equity by a receiver of a national bank to recover an assess-
ment made by the Comptroller of the Currency to the amount of the
par value of the shares formerly owned by one of the stockholders, de-
fendant pleaded the statute of limitations. The statute provided that
actions upon contracts in writing should be brought within five years,
but that actions brought upon contracts not in writing or upon liabili-
ties created by statute should be brought within four years. Held: That
a bill to recover the assessment in question was not brought upon a
contract in writing, but upon an implied contract not in writing, or
upon a liability created by statute, and that the suit was barred. Mc-
Donald v. Thompson, 71.
2. The single question for the determination of the court in this case is,
whether the Comptroller of the Currency, acting under the national
banking laws, can validly make more than one assessment upon the
shareholders of an insolvent national banking association, and it is held
that he can, the language of the statutes on that subject being plain
and free from doubt. Studebaker v. Perry, 258.
See LIMITATIONS, STATUTES OF.
1. The appellees' contention as to jurisdiction in this case is not justified
for reasons expressed in Clark v. Wooster, 119 U. S. 322, and Beedle v.
Bennett, 122 U. S. 71. Busch v. Jones, 598.
2. This was an action to recover for infringements of a patent. The lower
courts found as a fact that all the claims of the patent had been in-.
fringed by appellant, and the evidence sustains the finding. The ac-
counting in the lower court, however, was had upon the basis of the
validity of the process, and therefore the judgment of the Court of
Appeals must be reversed and the cause remanded with directions to
that court to reverse the judgment and decree of the Supreme Court,
and remand the cause to the latter court for further proceedings in ac-
cordance with this opinion. Ib.
Construing the act of March 3, 1883, c. 119, 22 Stat. 587, and the act of
June 12, 1886, 14 Stat. 59, both relating to the salaries of postmasters,
as their terms require, the judgment of the Court of Claims in this case
is erroneous; but the charges of misconduct, maladministration and
fraud against the officers of the Post Office Department, so freely scat-
tered through the briefs of counsel for appellee, are entirely unwar-
ranted by anything contained in the record. United States v. Ewing,
|