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are Hogs, Julien T. Davies, and W. H. Wat. I inadequate to trace the funds into any son for petitioners and appellants.

specific cotton (Peters v. Bain, 133 U. S. Messrs. Walker B. Spencer, Charles 670, 693, 33 L. ed. 696, 704, 10 Şup. Ct. Payne Fenner, Augustus Benners, Wil. Rep. 354), and the cross bill must be reliam A. Blount, Henry P. Dart, F. B. garded as an attempt to secure from the Carter, E. C. Maxwell, and Henry P. Dart, estate priority of payment on account of Jr., for respondents and appellees. money fraudulently obtained by the bank.

rupts and put into their business. ManiMr. Justice McReynolds delivered the tained in the southern district of Alabama.

festly such a proceeding could not be enteropinion of the court:

The estate was being administered in an

other court. Mueller v. Nugent, 184 U. S. Number 98.

8, 46 L. ed. 408, 22 Sup. Ct. Rep. 269; Knight, Yancey, & Company were duly adJones v. Springer, 226 U. S. 153, 57 L. ed. judged bankrupts in the district court, 163, 33 Sup. Ct. Rep. 64; Acme Harvester northern district of Alabama, April 21, Co. v. Be kman Lumber Co. 222 U. S. 300, 1910. A few days later, in conjunction 56 L. ed. 208, 32 Sup. Ct. Rep. 96; Lazarus with a firm creditor, the receivers brought v. Prentice, 234 U. S. 267, 58 L. ed. 1307, suit in the United States circuit court, fifth 34 Sup. Ct. Rep. 851; Jaffe v. Weld, 208 circuit, southern district of Alabama, against N. Y. 593, 102 N. E. 1104. Latham & Company, a French partnership, The judgment of the Circuit Court of ApFrederick Leyland Steamship Company, peals is affirmed. Limited, Louisville & Nashville Railroad

Number 259. Company, and others, seeking to recover 4,200 bales of cotton about to be exported The record contains the amended bill of from Mobile, upon the ground that, while complaint; motions to dismiss, with objecinsolvent, the bankrupts had transferred it tions thereto; final jud ment of dismissal to Latham & Company in payment of prior for want of jurisdiction; assignment of indebtedness and with intent to prefer errors, etc. them. After being taken into possession Shortly after Knight, Yancey, & Company by the United States marshal, by order of were adjudged bankrupts, upon application court, the cotton was released, May 14, of the receivers (May, 1910), the United 1910, to Latham & Company, who executed States district court, northern district of a bond conditioned: "Now, therefore, if Florida, enjoined the Louisville & Nashthe obligors herein shall have forthcoming ville Railroad from removing or disposing and deliver within sixty days from date of of -3,600 bales of cotton in its possession at any final decree of this court said cotton Pensacola; and in June thereafter the duly to the proper office of the court, or shall selected trustee instituted suit seeking to pay and satisfy such decree as may be ren- recover possession of the cotton upon the dered in the premises, then this obligation ground that it had been transferred with shall be null and void, otherwise to remain intent to prefer. By the court's direction in full force and effect.” Later the trustee 2,635 bales were thereafter delivered to in bankruptcy was substituted as complain. Latham & Company, who claimed them as ant.

owners, a forthcoming bond having been July 1, 1910, Knauth, Nachod, & Buhne given. The remainder—965 bales—was sold filed in the cause a so-called cross bill, sub- and proceeds deposited in the First Nationsequently amended, which on motion was dis- al Bank of Pensacola to await final orders. missed both for want of equity upon its face Subsequently appellants instituted and because the court lacked jurisdiction to original proceeding claiming that the bank. entertain it. The circuit court of appeals rupts had fraudulently obtained from them affirmed this action.

$98,000 and invested it in this or other The amended cross bill is a mass of cotton or otherwise, and that they were enprolix and vagrant statements and allega- titled to impress a trust upon the avails of tions from which it is difficult to spell out such funds. any very definite theory. Apparently be- The involved and erratic allegations cause $98,000—approximate market value are wholly inadequate to show with sufof 1,300 bales of cotton—had been fraudu- ficient definiteness that the funds were lently obtained from Knauth, Nachod, & invested in the cotton at Pensacola; and Kuhne by the bankrupts and used by them, the bill must be considered as an atin their business, the former sought to im- | tempt to secure priority of payment out of press a trust upon what the latter there the bankrupts' estate upon the theory that after acquired, including the 4,200 bales it was increased by appellants' money. of cotton found at Mobile.

There was no jurisdiction to entertain such

an

a in the District Court in Flor- WRIT of Certiorari to the United

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affirmed.

the Second Circuit to review a decree which

affirmed a decree in favor of libellant in a Number 260.

suit to recover damages consequent upon

the sinking of a ship in a collision. Dis. The record also consists of the amended missed as having been improvidently grantbill, filed April 14, 1914; motions to dis- ed. miss, with objections thereto; final judg. See same case below, 132 C. C. A. 201, ment of dismissal for want of jurisdiction; 215 Fed. 859. assignments of error, etc.

The facts are stated in the opinion. At the instance of the receivers of Messrs. Norman B. Beecher, Charles Knight, Yancey, & Company, May, 1910, C. Burlingham, and Roscoe H. Hupper for the Louisville & Nashville Railroad was en petitioner. joined by the United States district court, Messrs. D. Roger Englar, J. Parker northern district of Florida, from remov. Kirlin, Lawrence Kneeland, William H. ing or disposing of 1,950 bales of cotton McGrann, and John M. Woolsey for respondthen in its possession at Pensacola, Florida, ents. and claimed by Westphalen & Company. Afterwards that firm instituted an original Mr. Justice McReynolds delivered the suit to recover, pending which, under agree opinion of the court: ment, the cotton was sold and the proceeds The writ of certiorari was improvidently deposited in two banks at Pensacola, sub- granted and must be dismissed. We should ject to final judgment. The proceedings have denied the petition therefor if the facts were substantially the same as in Number essential to an adequate appreciation of the 259, and like action was taken by the court. situation had then been brought to our at. The judgment below is affirmed.

tention. Petitions of this character are at the risk of the party making them, and

whenever, in the progress of the cause, facts (242 U. S. 430)

develop which, if disclosed on the appliFURNESS, WITHY, & COMPANY, Lim- cation, would have induced a refusal, the ited, Petitioner,

court may, upon motion by a party, or ex

mero motu, dismiss the writ. United YANG-TSZE INSURANCE ASSOCIATION, States v. Rimer, 220 U. S. 547, 55 L. ed. 578, Limited, et al.

31 Sup. Ct. Rep. 596; State, Malone, Prose

cutor, v. Water Comrs. 30 N. J. L. 247. COURTS 383(1)-CERTIORARI — To CIBCUIT COURT' OF APPEALS-IMPROVIDENT

In February, 1912, the Yang-Tsze InsurLY GRANTED-DISMISSAL.

ance Association, Limited, filed its libel in 1. Petitions for certiorari to the Fed the district court at New York against eral circuit courts of appeals are at the Furness, Withy, & Company, Limited, ownrisk of the party making them, and when- er of the Pomaron, to recover damages ever, in the progress of the case, facts de consequent upon the sinking of the Allevelop which, if disclosed on the application, ghany. A judgment for libellant, rendered would have induced a refusal, the Supreme June 13, 1913, was affirmed by the circuit Court may, upon motion by a party, or ex mero motu, dismiss the writ.

court of appeals in June, 1914; and on (Ed. Note.-For other cases, see Courts, Dec.

October 5, 1914, the Pomaron's owner instiDig. 383(1).]

tuted a proceeding in the same district COURTS 383(1)-CERTIORARI — To CIB-court for limitation of liability, and the

CUIT COURT OF APPEALS—IMPROVIDENT- steps customary in such causes were regularLY GRANTED-DISMISSAL.

2. Certiorari to a Federal circuit court | ly taken. April 12, 1915, the petitioner preof appeals, granted to review a judgment sented an original application here for a in a proceeding to recover damages conse-writ of certiorari to bring up the judgment quent upon the sinking of a ship in a cold of the circuit court of appeals in the damage lision, will be dismissed where it subse cause, and this was denied April 19th. quently transpires that a later final decree

It now appears that, on April 22, 1915, a in proceedings for a limitation of the ship- final decree containing the following reowner's liability was based upon an express citals was entered by the district court in compromise agreement. (Ed. Note.-For other cases, see Courts, Dec.

the limitation proceedings: "Whereas the Dig. 383(1).]

petitioner and all the claimants herein have

compromised and settled the issues between [No. 106.]

them, and in consideration of the said

compromise and settlement it has been Argued December 18 and 19, 1916. Decidea agreed between the petitioner and all the January 8, 1917.

claimants:" (The terms follow.) “WhereGo For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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as, in consideration of the said compromise portions of the fund ascertained to be due and settlement, the several claimants herein them, and have executed receipts of dig. by agreement have fixed and adjusted the charge in the terms provided by the decree. amounts of their several losses consequent The case is, therefore, finally closed and seton the said collision at the following sums, tled as between all the parties, and such to wit:(The amounts are specified.) settlements have been made without any "Now on the subjoined admissions of cor reservation of rights on the part of the rectness of the foregoing recitals and the petitioner." subjoined consents and waivers of settle- We were not advised by petition of June ment in respect of the entry of this decree, 15, 1915, or memorandum opposing it, that made by the proctors for all claimants here. the final decree in the limitation proceedings in .. it is ordered, adjudged, and was based upon an express compromise decreed, etc.”

agreement; otherwise the writ would not The following, signed by all the proctors, have been allowed. At the hearing counsel is subjoined to the decree: "The under expressed diffețent views concerning the signed proctors, for all the parties herein, ultimate effect of that decree and the reahereby admit the truth of the recitals con- sons for its form; and they made it quite tained in the foregoing decree and consent .plain that there was no purpose to mislead to the entry thereof, without further no- Nevertheless, in the circumstances, we tice."

think it was incumbent upon counsel for Petitioner's second application for certi- both sides to see that the petition and reorari, which was presented June 15, 1915, ply thereto disclosed the real situation. and granted, contains these statements : The oversight has resulted in unfortunate

"On May 10, 1915, as your petitioner is delay and needless consumption of time. informed, this court granted a writ of certi- During the last term one hundred fiftyorari to the circuit court of appeals for the four petitions for certiorari were presented ninth circuit upon the petition of Olaf Lie, and acted upon. Because of recent legismaster of the Norwegian steamship Selja, lation-Act of September 6, 1916, chap. 448, in a suit between said Olaf Lie, master, etc., 39 Stat. at L. 726—their number hereafter and the San Francisco & Portland Steam- may greatly increase. Such petitions go ship Company, etc."

first to every member of the court for "Your petitioner now renews its appli. examination, and are then separately concation for certiorari for the reason that the sidered in conference. This duty must be questions presented by its petition are promptly discharged. We are not aided by identical with those presented by the peti- oral arguments, and necessarily rely in an tion of Olaf Lie. The principal question especial way upon petitions, replies, and is whether, under this court's decision in supporting briefs. Unless these are careThe Pennsylvania, 19 Wall. 125, 22 L. ed. fully prepared, contain appropriate refer148, a privileged vessel, which, before a col- ences to the record, and present with lision with a burdened vessel, ported her studied accuracy, brevity, and clearness helm in violation (prima facie, at least) of whatever is essential to ready and adequate article 21 of the International Regulations, understanding of points requiring our atmay be held responsible for the collision, tention, the rights of interested parties may ."

be prejudiced and the court will be impeded “Subsequent to the decision of the circuit in its efforts properly to dispose of the court of appeals your petitioner instituted causes which constantly crowd its docket. proceedings for limitation of liability, Dismissed. which, after the denial by this court of the original petition, were prosecuted to a de

(242 U. S. 434) cree under which payments were made to JOHN WILLIAMS, Chief; Michael Wilthe respondents by the clerk of the district

liams, Secretary, et al., Appts., court. As these payments were made under compulsion, they would be recoverable by CITY OF CHICAGO, Illinois Central Railyour petitioner in the event that this court

road Company, et al. should reverse the decision of the circuit

INDIANS m10_RELATIVE TITLE OF INcourt of appeals.”

AND GOVERNMENT OCCUPANCY In their memorandum opposing the second

OR FEE. petition for certiorari, counsel for the In- 1. The only possible immemorial right surance Association said: “The case is which the Pottawatomie Nation had in the settled and closed.” And after referring to country claimed as their own at the time steps taken in the limitation proceeding, of the concluding of the Greeneville Treaty and quoting from the decree therein, dated of Peace of August 3, 1795 17 Stat, at L. April 22, 1915, they added : “All the claim. 51), was that of occupancy.

[Ed. Note.--For other cases, see Indians, Cent. ants have been paid the respective pro-'Dig. $$ 25, 29, 46; Dec. Dig. Om10.1

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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DIANS

INDIANS 11-TRIBAL LANDS TREATY of Illinois, which have been reclaimed from STIPULATIONS-OCCUPANCY OB FEE. Lake Michigan. 2. Nothing more than a right of con

The bill proceeds upon this theory: tinued occupancy could be claimed by the

That from time immemorial, on August Indians under the Greeneville Treaty of Peace of August 3, 1795 (7 Stat. at L. 51), Indians were the owners and in possession

3, 1795, and thereafter, the Pottawatomie by which the United States stipulated with the Pottawatomies and other Indians that, as a sovereign nation, as their country, of generally, in respect of a large territory large tracts of land around and along the westward of a line passing through Ohio, shores of Lake Michigan, south of a line "the Indian tribes who have a right to those running from Milwaukee river, Wisconsin, lands are quietly to enjoy them, hunting, to Grand river, Michigan, and extending planting, and dwelling thereon so long as "east and west of said two points and inthey please, without any molestation from cluding all of Lake Michigan which is the United States; but when those tribes, or any of them, shall be disposed to sell south of said line,”—a stretch of a hundred

miles. their lands or any part of them, they are to be sold only to the United States; and

That by the Treaty of Peace entered into until such sale, the United States will pro- at Greenville, Ohio, August 3, 1795, the tect all the said Indian tribes in the quiet United States relinquished to the Pottawaenjoyment of their lands against all citi. tomie and other tribes their claims to Inzens of the United States and against all dian lands westward of a designated line other white persons who intrude upon the passing through the state of Ohio, and ly; same.” When this right of occupancy was abandoned, all legal right or interest which ing “northward of the River Ohio, eastward both tribe and its members had in the of the Mississippi, and westward and southterritory came to an end.

ward of the Great Lakes and the waters [Ed. Note. For other cases, see Indians, Cent. uniting them, according to the boundary Dig. § 26; Dec. Dig. ll.]

line agreed on by the United States and the

King of Great Britain in the Treaty of [No. 128.]

Peace made between them in the year of

1783 [8 Stat. at L. 80)." [7 Stat. at L. 51.] Argued December 22, 1916. Decided Janu

That by later treaties the Pottawatomie ary 8, 1917.

Nation receded to the United States all such lands up to the shores of Lake Michi

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United States for the Northern Dis- its of Illinois which were formerly beneath trict of Illinois to review a decree dismiss the waters of Lake Michigan, "whether reing the bill in a suit by Pottawatomie In-claimed, artificially made, or now or fordians to establish title to lands reclaimed merly submerged : . . have remained and from Lake Michigan. Affirmed.

still are the property of these complainants The facts are stated in the opinion.

and any attempts on the part of Messrs. J. G. Grossberg, and W. W. De any persons, firms, and corporations to apArmond for appellants.

propriate same, or any part thereof, were Messrs. W. S. Horton, Chester E. and are in violation of said treaties and the Cleveland, Samuel A. Ettelson, Robert rights of these complainants." Redfield, W. D. McKenzie, and Francis That in 1833, with the exception of the O'Shaughnessy for appellees.

Pokagon Band, in pursuance of a treaty

with the United States, the Pottawatomie Mr. Justice McReynolds delivered the Nation migrated west of the Mississippi opinion of the court:

river, leaving that band in possession, occuThe claim set up in this cause is without pation, control, and sovereignty of so much merit, and the amended bill was properly of the Nation's original country as dismissed, upon motion, for want of equity. mained unceded.

Complainants are eight Pottawatomie In- That the United States has refused to dians, members of the Pokagon Band, and purchase the reclaimed lands and conseresidents of Michigan. They undertake to quently complainants are at liberty to ocsue "on behalf of themselves and of all cupy, sell, lease, or dispose of the same as members of the Pokagon Band of Pottawa- their own in fee simple. tomie Indians, and of all other members The bill prays that defendants be enof the Pottawatomie Nation of Indians, if joined from occupying or building upon the any are entitled to join herein with them, specified land, or from asserting any claim, and of all others, if any, who are entitled title, or interest therein; that they be reto join herein with them."

quired to pay a reasonable compensation Defendants are the city of Chicago and for its use; and that the complainants' certain corporations now occupying valu- title thereto be quieted, established, and able lands within the geographical limits Iconfirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

re

The only possible immemorial right which tracks a drainage ditch to be constructed the Pottawatomie Nation had in the coun-l in the public interest under the Indiana try claimed as their own in 1795 was that, Drainage Act of March 11, 1907, across a of occupancy. Johnson v. M'Intosh, 8 sandy, ridge lying between Lake Michigan Wheat. 543, 5 L. ed. 681. If, in any view, it and the Little Calumet river, may be cast ever held possession of the property here in upon railway companies occupying such

ridge with their rights of way, without question, we know historically that this was denying the due process of law guaranteed abandoned long ago, and that for more by V. Š. Const. 14th Amend., although their than a half century it has not even pre roads, being upon the top of the ridge, are tended to occupy either the shores or waters not within the area to be drained, do not of Lake Michigan within the confines of contribute to the formation of any overflow, Illinois.

and are not benefited by the proposed drain. By the Treaty of Greenville the United age, where their charters obligate them not

to interfere with the free use, or unneces. States stipulated with the Pottawatomies sarily impair the usefulness of any stream, and other Indians that generally, in respect watercourse, highway, or canal which their of a large territory westward of a line pass. roads may cross,-a duty which the highing through Ohio, “the Indian tribes who est state court interprets as a continuing have a right to those lands are quietly to one, and as applicable to artificial as weli enjoy them, hunting, planting and dwelling as natural watercourses. thereon so long as they please, without any law, centDig. 89 870-876 ; Dec. Dig. Ow291.)

[Ed. Note.-For other cases, see Constitutional molestation from the United States; but

CONSTITUTIONAL LAW 291–DUE Prowhen those tribes, or any of them, shall be

CESS OF LAW-IMPOSING SPECIAL BUBdisposed to sell their lands, or any part of DEN ON RAILWAY COMPANY. them, they are to be sold only to the United 2. The expense of taking out existing States; and until such sale, the United piers and abutments of a railway bridge States will protect all the said Indian tribes and erecting new ones, made necessary by in the quiet enjoyment of their lands out of a proposed drainage system to be

the deepening of a channel in the carrying against all citizens of the United States, constructed in the public interest under the and against all other white persons who in- sanction of the Indiana Drainage Act of trude upon the same." We think it en March 11, 1907, may be cast upon the rail. tirely clear that this treaty did not convey way company without denying the due proca fee-simple title to the Indians; that under ess of law guaranteed by U.S. Const. 14th it no tribe could claim more than the right abutments form no obstruction to the natu

Amend., although the present bridge and of continued occupancy; and that when ral flow of the stream, where the company's this was abandoned, all legal right or inter- i charter obligates it not to interfere with est which both tribe and its members had the free use, or unnecessarily impair the in the territory came to an end. Johnson usefulness of any stream or watercourse v. M’Intosh, 8 Wheat. 543, 584, 586, 588, 5 which its road may cross,-a duty which L. ed. 681, 691, 692; Mitchel v. United the highest state court interprets as a conStates, 9 Pet. 711, 745, 9 L. ed. 283, 295; tinuing one, and as applicable to artificial

as well as natural watercourses. United States v. Cook, 19 Wall. 591, 592,

[Ed. Note.-For other cases, see Constitutional 22 L. ed. 210, 211; Beecher v. Wetherby, 95 Law, Cent. Dig. $$ 870-876; Dec. Dlg. 291.] U. S. 517, 525, 24 L. ed. 440, 441.

CONSTITUTIONAL LAW Om 234 EQUAL It is unnecessary to consider other rca- PROTECTION OF THE LAWS-CLASSIFICA

TION --RAILWAY COMPANIES. sons suggested by counsel in support of the

3. Awarding to a county the damages decree below,

to bridges and highways to result from Affirmed.

carrying out a proposed drainage system to be constructed in the public interest under the sanction of the Indiana Drainage

Act of March 11, 1907, while casting upon (242 U. S. 375)

railway companies the cost of bridging gaps LAKE SHORE & MICHIGAN SOUTHERN to be made in their rights of way by the

RAILWAY COMPANY, Chicago, Indiana, proposed drain, and of rebuilding existing & Southern Railroad Company, and Mich- abutments and piers of a railway bridge igan Central Railroad Company, Plffs. crossing a stream, the channel of which in Err.,

will be deepened as a result of the con

struction of the drainage system, does not SUSAN CLOUGH, the Tolleston Club of tection of the laws guaranteed by U. S.

deny the railway companies the equal proChicago, Charles G. Wicker, et al.

Const. 14th Amend., where their charters

obligate them not to interfere with the free CONSTITUTIONAL LAW 291-DUE PRO- use, or unnecessarily impair the usefulness

CESS OF LAW-IMPOSING SPECIAL B'UR- of any stream, watercourse, highway, or DEN ON RAILWAY COMPANY.

canal which their roads may cross,-a duty 1. The expense of bridging with their which the highest state court interprets as For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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