Page images

such patent the fee simple title vested in the State, and what was
before an inchoate title then became perfect as of the date of the act;
(3) That when the Secretary of the Interior certified in 1858 that the
lands in controversy inured to the State under the railroad act of
1856, he, in effect, decided that they were not embraced by the
Swamp Land act of 1850; that it was open to the State, before accept-
ing the lands under the railroad act, to insist that they passed under
the act of 1850 as swamp and overflowed lands; that if the State con-
sidered the lands to be covered by the Swamp Land act, its duty was
to surrender the certificate issued to it under the railroad act; and
that it could not take them under one act, and, while holding them
under that act, pass to one of its counties the right to assert an inter-
est in them under another and different act; (4) That the county of
Calhoun, being a unere political division of the State, could have no
will contrary to the will of the State ; that its relation to the State is
such that the action of the latter in 1858 in accepting the lands under
the railroad act was binding upon it as one of the governmental
agencies of the State; that the county could not, after such accept-
ance, claim these lands as swamp and overflowed lands, or, by assum-
ing to dispose of them as lands of that character, pass to the
purchaser the right to raise a question which it was itself estopped
from raising; that the Emigrant Company could not, by any agree-
ment made with the county in 1861 or afterwards, acquire any greater
rights or better position in respect to these lands than the county
itself had after the certification of them to the State in 1858 as lands
inuring under the railroad act of 1856; and that the plaintiff claiming
under the county and State was concluded by the act of the State in
accepting and retaining the lands under that statute. Rogers Loco-
motive Machine Works v. American Emigrant Company, 559.



1. The action of executive officers in inatters of account and payment can-

not be regarded as a conclusive determination, when brought in ques-
tion in a court of justice. Wisconsin Central Railroad Co. v. United

States, 190.
2. The government is not bound by the act of its officers, making an unau-

thorized payment, under misconstruction of the law. Th.
3. Parties receiving moneys, illegally paid by a public officer, are liable er

æquo et bono to refund them; and there is nothing in this record to

take the case out of the scope of that principle. Ib.
4. The forms of pleading in the Court of Claims do not require the right

to recover back moneys so illegally paid to be set up as a counter-

claim in an action brought by the party receiving them to recover
further sums from the goverument. Ib.

The complainant in this case charged that the Atchison, Topeka and

Santa Fé Company and the plaintiff in error, corporations of the State
of Massachusetts, were, at the time of the injury complained of, jointly
operating a railroad; that the defendant was travelling npon it with
a first class ticket; and that by reason of negligence of the defendants
an accident took place which caused the injuries to the plaintiff for
which recovery was sought. The answers denied joint negligence, or
joint operation of the road, and adınitted that the plaintiff in error
was operating it at the time. A trial resulted in a verdict in favor of
the Atchison Company and against the plaintiff in error. On the trial
the complaint was amended by substituting “second class for “ first
class” ticket, and that the charters were by acts of Congress, and to
the complaint so amended the statutes of limitations was pleaded.
A judgment on the verdict was set aside and an amended complaint
was filed in which the plaintiff in error was charged to have done the
negligent acts complained of, and recovery was sought against it. A
second trial resulted in a verdict against the company. Held, (1) That
the action was ex ilelicto ; that the defendants might have been sued
either separately or jointly; that recovery might have been had, if
proof warranted against a single party; and that the amendment,
dismissing one of two joint tort feasors, and alleging that the injury
complained of was occasioned solely by the remaining defendant, did
not introduce a new cause of action; (2) That the amendment stat-
ing that the plaintiff was travelling upon a second class ticket instead
of a first class ticket, and that the plaintiff in error was chartered by
an act of Congress instead of by a statute of Massachusetts, as origi-
nally averred, did not state a new cause of action. Atlantic & Pacific
Railroad Co. v. Laird, 393.

See Public LAND, 12, 13, 14;

ReceivER, 5.

1. After the death of the receiver, this case was properly revived in the

name of his executrix. Cake v. Mohun, 311.
2. While, as a general rule, a receiver has no authority, as such, to continue

and carry on the business of which he is appointed receiver, there is a
discretion on the part of the court to permit this to be done when the
interests of the parties seem to require it; and in such case his power
to incur obligations for supplies and materials incidental to the business

follows as a necessary incident to the office. Ib.
3. A purchaser of property at a receiver's sale who, under order of court,

in order to get possession of the property gives an undertaking, with
surety, conditioned for the payment to the receiver of such amounts as
should be found due hiin on account of expenditures or indebtedness
as well as compensation, thereby becomes liable for such expenditures

and indebtedness. Ib.
4. In determining what allowances shall be made to a receiver and to his

counsel this court gives great consideration to the concurring views of
the auditor or master and the courts below; and it is not disposed to
disturb the allowance in this case, although, if the question were an
original one it might have fixed the receiver's compensation at a less

amount. 16.
5. A passenger on the road of the Texas Pacific Railway Company sued

that company and its receiver in a Texas court in an action at law to
recover for injuries received when travelling on its road while it was
in the hands of the receiver. The case was removed to the Circuit
Court of the United States, where a trial was had. The receivership
had been terminated before the commencement of the action, and the
property had, by order of the court, been transferred to the company
under the circumstances and on the conditions described in Texas f
Pacific Railway v. Johnson, 151 U. S. 81, and in this case the company
contended that it was not liable, or if liable, that the claim could only
be enforced in equity. The trial resulted in a verdict and judgment
for the plaintiff. Held, that under the circumstances the company
was liable to the plaintiff in an action at law, for the damages found
by the jury; that the conduct of the railway company in procuring, or,
at least, in acquiescing in the withdrawal of the receivership and the
discharge of the receiver and the cancellation of his bond and in ac-
cepting the restoration of its road, largely increased in value by the
betterments, affords ground to charge an assumption of such valid
claims against the receiver as were not satisfied by hiin, or by the
court which discharged him. Texas fPacific Railway Company v.
Bloom's Administrator, 636.

1. The filing by the defendant in an action in a state court of a petition

for its removal to the proper Circuit Court of the United States does
not prevent the defendant, after the case is removed, from moving in
the Federal court to dismiss it for want of jurisdiction of the person
of the defendant in the state court or in the Federal court. IV abash
Western Railway v.

Brow, 271.
2. A defendant, by filing a petition in a state court for removal of the

cause to the United States court, in general terms, unaccompanied by
a plea in abatement, and without specifying or restricting the purpose
of his appearance, does not thereby waive objection to the jurisdiction
of the court for want of sufficient service of the summons. National
Accident Society v. Spiro, 281.


1. Statutes granting privileges or relinquishing rights of the public are to

be strictly construed against the grantee. Wisconsin Central Railroud

Co. v. United States, 190.
2. An intention to surrender the right to demand the carriage of mails

over subsidized railroads at reasonable rates, assumed in construing
a statute of the United States, is opposed to the established policy of

Congress. Ib.
3. The punctuation of a statute is not decisive of its meaning. Ford v.
Delta & Pine Lund Co., 662.

See Direct Tax REFUNDING ACT, 2.


C; D; E, l;

CRIMINAL LAW, 1, 6, 27; MORTGAGE, 2, 3;
1, 3, 4;

Public LAND, 3, 4, 12, 14, 15.
FEES, 5, 6;


Alabama. See JurISDICTIOX, A, 9.
Arizona. Ses Tax AND TAXATiox, 3 to 10.
Arkansas. See LOCAL LAW, 1.
California. See ConstitUTIONAL LAW, 2, 7, 9;

Georgia. See Tax AND Taxatiox, 1.

See Public LAND, 15.
Kentucky. See CoxstiTUTIONAL LAW, 13.
Massachusetts. See NATIONAL Baxk, 1.
Mississippi. See Tax AND TAXATION, 12, 13, 15, 16.
Montana. See JURISDICTIOX, E, 2.
New Mexico. See JURISDICTION, D.
New York. See ADMIRALTY.


See Frauds, STATUTE OF.


1. Section eighteen of the act of the legislature of Georgia of December

14, 18:35, providing that no municipal or other corporation shall have
power to tax the stock of the Central Railroad and Banking Com-
pany of Georgia, but may tax any property, real or personal, of said
company within the jurisdiction of said corporation in the ratio of
taxation of like property, when construed in connection with other
legislation on that subject, permits municipal corporations to tax such
property within their respective jurisdictions in the ratio of taxation

of like property. Central Railrouil 8Banking Co. v. Wright, 327.
2. While, the absence of any words showing a different intent, an

exemption of the stock or capital stock of a corporation may imply,
and carry with it, an exemption of the property in which such stock
is invested, yet, if the legislature uses language at variance with such
intention, the courts, which will never presume a purpose to exempt
any property from its just share of the public burdens, will construe
any doubts which may arise as to the proper interpretation of the

charter against the exemption. Ib.
3. In proceedings in Arizona to enforce the collection of taxes assessed

upon real estate, a printed copy of the delinquent list, instead of the
original filed in the office of the county treasurer, was offered in evi-
dence. To the introduction of this objection was made, but not upon
the ground that the original was the best evidence, or that the copy
offered was not an exact copy. In this court it was for the first time
objected that the list, as filed in this case, was not a copy of the origi-
nal. Held, that this court would not disturb the judgment of the
court below on such technical grounds, apparently an afterthought.

Maish v. Arizona, 599.
4. For the hearing of the objections of the appellants against the assess-

ment of the tax the court convened on the 11th of March. The
notice published by the tax collector was that the sale would begin
on the 20th of March. On March 15 a judgment was entered direct-
ing the sale on the 20th of all the property, to which no objection
had been filed. As to those parties making objections (and included
among them were the present appellants) the case was set down for
hearing at a subsequent day, and a trial then had; but the judgment
was not entered until the 7th day of May, 1892, and the order was to
sell on the 13th day of June. Held, that the purpose and intention
of the act being the collection of taxes, but only of such taxes as
ought to be collected, and judicial determination having been invoked
to determine what taxes were justly due, the fact that the court took
time for the examination and consideration of this question did not

oust it of jurisdiction. 16.
5. In Arizona the delinquent tax list is made by law prima facie evidence

that the taxes charged therein are due against the property, as well
the unpaid taxes for past years as those for the current year. Ib.

« PreviousContinue »