his stock in order to escape the individual liability to which the statute
subjected him. Ib.
5. Whether, the bank being in fact insolvent, the transferrer is liable to
be treated as a shareholder in respect of its existing contracts, debts
and engagements, if he believed in good faith, at the time of the trans-
fer, that the bank was solvent- not decided; although he may be so
treated, even when acting in good faith, if the transfer is to one who
is financially irresponsible. 1b.
6. Section 5198 of the Revised Statutes of the United States prescribing
what rate of interest may be taken, received, reserved or charged by a
national banking association, makes a difference between interest
which a note, bill or other evidence of debt "carries with it, or which
has been agreed to be paid thereon," and interest which has been
"paid." Brown v. Marion Nat. Bank, 416.
7. Interest included in a renewal note, or evidenced by a separate note,
does not thereby cease to be interest within the meaning of section
5198.
8. If a national bank sues upon a note, bill or other evidence of debt held by
it, the debtor may insist that the entire interest, legal and usurious, in-
cluded in his written obligation and agreed to be paid, but which has
not been actually paid, shall be either credited on the note, or eliminated
from it, and judgment given only for the original principal debt, with
interest at the legal rate from the commencement of the suit. lb.
9. The forfeiture declared by the statute is not waived by giving a renewal
note, in which is included the usurious interest. No matter how many
renewals may be made, if the bank has charged a greater rate of in-
terest than the law allows, it must, if the forfeiture clause of the
statute be relied on, and the matter is thus brought to the attention
of the court, lose the entire interest which the note carries or which
has been agreed to be paid. Ib.
10. If, for instance, one executes his note to a national bank for a named
sum as evidence of a loan to him of that amount to be paid in one
year at ten per cent interest, such a rate of interest being illegal, and
if renewal notes are executed each year for five years, without any
money being in fact paid by the borrower, each renewal note includ-
ing past interest, legal and usurious, the sum included in the last
note, in excess of the sum originally loaned, would be interest which
that note carried or which was agreed to be paid, and not, as to any
part of it, interest paid. Ib.
11. If the note when sued on includes usurious interest, or interest upon
usurious interest, agreed to be paid, the holder may elect to remit such
interest, and it cannot then be said that usurious interest was paid to
him.
12. If the obligee actually pays usurious interest as such, the usurious
transaction must be held to have then, and not before, occurred, and
he must sue within two years thereafter. Ib.
PARTITION.
See MARRIED WOMAN, 5.
If the owner of a patent applies to the Patent Office for a reissue of it
and includes, among the claims in the application, the same claims as
those which were included in the old patent, and the primary ex-
aminer rejects some of such claims for want of patentable novelty,
by reference to prior patents, and allows others, both old and new,.
the owner of the patent does not, by taking no appeal and by aban-
doning his application for reissue, hold the original patent (the
return of which he procures from the Patent Office) invalidated as
to those of its claims which were disallowed for want of patentable
novelty by the primary examiner in the proceeding for reissue; as
the Patent Office, by the issue of the original patent, had lost juris-
diction over it, and did not regain it by the application for a reissue.
McCormick Harvesting Machine Co. v. Aultman, 606.
1. Decree affirmed on a question of fact only. Lewis v. Kengla, 234.
2. An appellate court is not required to set aside the judgment of the
trial court by reason of failure to give instructions which were not
asked for. Backus v. Fort Street Union Depot Co., 557.
3. The Supreme Court of Michigan was called upon to consider only
such objections as had been particularly specified, and all others were
deemed to have been waived. Ib.
4. The decision by the Supreme Court that it had power to set aside the
verdict and order a new trial was not a reversal of a ruling that the
Circuit Court had no such power. Ib.
1. The decision of the Court of Private Land Claims that the ayuntami-
ento of El Paso had no power to make a grant, like the one in con-
troversy in this case, entirely outside of the four square leagues
supposed to belong to El Paso, and that even if it had such power, the
conditions of the alleged grant were never performed by the grantee,
and therefore that he acquired no title to the property, was correct.
Cessna v. United States, 165.
2. A deputy marshal of the United States, duly appointed as such prior
to the passage of the act of March 2, 1889, c. 412, providing for the
opening of the Territory of Oklahoma to settlement, and prior to the
proclamation of the President of March 23, 1889, fixing the time of
the opening of the lands for settlement, and who entered on said
lands and remained there in his official character prior to the
day fixed for said opening, was thereby disqualified from making a
homestead entry immediately upon the lands being opened for settle-
ment. Payne v. Robertson, 323.
3. The patent to the defendant in error does not preclude this court from
inquiring into the effect of the act of July 23, 1866, c. 219, “to quiet
land titles in California;" and the court holds that that act does not
require proof of an actual grant from the Mexican authorities to
some grantee through whom the title set up is derived; but that the
proper officers of the United States had jurisdiction to issue a patent
upon being satisfied of the existence of those facts in regard to which
it was their province to determine; and that the act includes those
who, in good faith and for a valuable consideration, have purchased
land from those who claimed and were thought to be Mexican
grantees or assignees, provided they fulfil the other conditions named
in the act. Beley v. Naphtaly, 353.
4. The facts in this case do not show, as matter of law, that Millett could
not have been a bona fide purchaser of these lands for a valuable con-
sideration; and whether in fact he were so was a fact to be deter-
mined by the Government on the issue of the patent, which precluded
further inquiry into that question. Ib.
5. A person who was within the statute and had the right to purchase
land as provided therein, could assign or convey his right of purchase
and his grantee could exercise that right. 16.
6. The rejection by the Secretary of the Interior of the first application
made by the defendant in error for a patent, and the subsequent
granting of a rehearing and the issuing of a patent thereafter were
all acts within his jurisdiction. Ib.
1. The reasonableness or unreasonableness of rates prescribed by a State
for the transportation of persons and property wholly within its limits
must be determined without reference to the interstate business done
by the carrier, or to the profits derived from that business. The State
cannot justify unreasonably low rates for domestic transportation, con-
sidered alone, upon the ground that the carrier is earning large profits
on its interstate business, over which, so far as rates are concerned,
the State has no control; nor can the carrier justify unreasonably high
rates on domestic business upon the ground that it will be able only
in that way to meet losses on its interstate business. Smyth v. Ames,
2. A railroad is a public highway, and none the less so because constructed
and maintained through the agency of a corporation deriving its exist-
ence and powers from the State. Such a corporation was created for
public purposes. It performs a function of the State. Its authority
to exercise the right of eminent domain and to charge tolls was given
primarily for the benefit of the public. It is, therefore, under govern-
mental control subject, of course, to the constitutional guarantees
for the protection of its property. It may not fix its rates with a view
solely to its own interests, and ignore the rights of the public; but the
rights of the public would be ignored if rates for the transportation of
persons or property on a railroad were enacted without reference to
the fair value of the property used for the public or for the services
rendered, and in order simply that the corporation may meet operating
expenses, pay the interest on its obligations. and declare a dividend to
stockholders. Ib.
3. If a railroad corporation has bonded its property for an amount that
exceeds its fair value, or if its capitalization is largely fictitious, it may
not impose upon the public the burden of such increased rates as may
be required for the purpose of realizing profits upon such excessive
valuation or fictitious capitalization; and the apparent value of the
property and franchises used by the corporation, as represented by its
stock, bonds and obligations, is not alone to be considered when de-
termining the rates that may be reasonably charged. Ib.
4. A corporation maintaining a public highway, although it owns the
property it employs for accomplishing public objects, must be held to
have accepted its rights, privileges and franchises subject to the condi-
tion that the government creating it, or the government within whose
limits it conducts its business, may by legislation protect the people
against the exaction of unreasonable charges for the services rendered
by it but it is equally true that the corporation performing such pub-
lic services, and the people financially interested in its business and
affairs, have rights that may not be invaded by legislative enactment
in disregard of the fundamental guarantees for the protection of prop-
erty. Ib.
5. The basis of all calculations as to the reasonableness of rates to be
charged by a corporation maintaining a highway under legislative
sanction must be the fair value of the property being used by it for
the convenience of the public; and in order to ascertain that value, the
original cost of construction, the amount expended in permanent im-
provements, the amount and market value of its bonds and stock, the
present value as compared with the original cost of construction, the
probable earning capacity of the property under particular rates pre-
scribed by statute, and the sum required to meet operating expenses,
are all matters for consideration, and are to be given such weight as
may be just and right in each case. What the company is entitled to
ask is a fair return upon the value of that which it employs for the pub-
lic convenience; and on the other hand, what the public is entitled to
demand is that no more be exacted from it for the use of a public
highway than the services rendered by it are reasonably worth. Ib.
See CONSTITUTIONAL LAW, 1, 7 to 12;
TAX AND TAXATION, 2;
UNION PACIFIC RAILROAD COMPANY.
1. An action brought in a state court, which, by reason of joinder as
defendants of citizens of the same State as the plaintiff, is not a remov-
able one under the act of Congress until after the time prescribed by
statute or rule of court of the State for answering the declaration,
may, upon a subsequent discontinuance in that court by the plaintiff
against those defendants, making the action for the first time a remov-
able one by reason of diverse citizenship of the parties, be removed
into the Circuit Court of the United States by the defendant upon a
petition filed immediately after such discontinuance, and before taking
any other steps in defence of the action. Powers v. Chesapeake & Ohio
Railway Co., 92.
2. If sufficient grounds for the removal of a case into the Circuit Court of
the United States are shown upon the face of the petition for removal
and of the record of the state court, the petition for removal may be
amended in the Circuit Court of the United States by stating more
fully and distinctly the facts which support those grounds. Ib.
3. The right of a party to insist that a case has been duly removed into
the Circuit Court of the United States is not lost or impaired by his
making defence in the state court, after that court had denied his peti-
tion for removal.
RES JUDICATA.
See JURISDICTION, A, 5, 6.
SOUTH CAROLINA, DISTRICT OF.
It having been decided in Barrett v. United States, ante, 218, that the State
of South Carolina constitutes but one judicial district, it follows that
the indictment in this case was properly remitted to the next session
of the District Court of that district. Barrett v. United States,
No. 2, 231.
See CIRCUIT COURTS OF THE UNITED STATES.
A. CONSTRUCTION OF STATUTES.
See EMINENT DOMAIN, 1, 5.
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