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Page Washington Northern R. Co., Crawford v. William R. Staats Co. v. Security Trust & (242 Ū. S. 629).. 14 Savings Bank (242 U. S. 639)....

111 Washington Ry. & Electric Co. v. Clark William R. Staats Co. v. Security Trust & (243 U, S. 649). 476 Savings Bank (243 U. S. 121).

336 Washington Ry. & Electric Co. v. Scala (244 Williams v. City of Chicago (242 U. S. 434) 142 U. S. 630). 654 Williams v. Cobb (242 U. s. 307).

115 Watlington v. United States (242 U. S. 615) 214 Williams v. Home Ins. Co. of New York Wattawa, Valley S. S. Co. v. (244 U. S. (243 U. S. 639).

403 202)

523 Williams, Illinois Cent. R. Co. v. (242 U. S. Watts, Wise v. (244 U. S. 661). 7-15 462)

128 Way, Barney v. (242 U. S. 662).

212 Williams, Seaboard Air Line Ry. v. (243 Weddle, Terre Haute, I. & E. Trạction Co. U. S. 631)....

477 V. (242 U. S. 655).

12 Williver, Delaware, L. & W. R. Co. v. (244 Weedin, Cameron v. (244 U. S. 663). 650 U. S. 663)....

650 Weil v. Black (243 U. S. 660). 476 Wills v. Maddox (240 U. S. 640)

113 Welch v. City of Boston (244 U. S. 662).. 649 Wilson, Baltimore & 0. R. Co. v. (242 U. S. Welch v. Ellis (244 U. S. 659). 745 295)

123 Weld, Lowe v. (242 U. S. 654).

12 Wilson, Commercial Trust & Savings Bank Welles, Portuguese-American Bank of San

v. (242 U. S. 632). Francisco V. (242 U. S. 7)...

3 Wilson, Interstate Banking & Trust Co. Wells Fargo & Co. Exp. v. State of Okla

(242 U. S. 632).

15 homa (242 U, S. 662). 114 Wilson, Kryger v. (242 U. S. 171).

34 Wellsville Oil Co. v. Miller (243 U. S. 6).. 362 Wilson v. New (243 U. S. 332).

298 Welsh, Erie R. Co. v. (242 U. S. 303). 116 Wilson, W. A. Gage & Co. v. (242 U. S. Werk v. Parker (242 U. S. 645)..

239
032)

15 West v. Edward Rutledge Timber Co. (244 Wilson & Co., Lasswell Land & Lumber Co. U. S. 90)..

587
V. (242 U. S. 652)..

245 Westerman Co. v. Dispatch Printing Co. Winfield, Erie R. Ćo. v. (244 U. S. 170) 556 (242 U. S. 638).

111 Winfield, New York Cent. R. Co. v. (244 Western Maryland R, Co., James Clark Dis

U. S. 147)..

546 tilling Co. v. (242 U. S. 311).

180 Wing v. Dillingham (244 U. S. 654). 652 Western Oil Refining Co. v. Lipscomb (244 Winters, Minneapolis & St. L. R. Co. v. U. S. 346)..

623
(242 U. S. 353).

170 Western Transit Co. v. A. C. Leslie & Co.

Wintner, Ex parte (243 U. S. 625).

399 (242 U. S. 448).

133 Wisconsin, Minnesota v. (242 U. S. 654). 12 Western Union Tel. Co., Free v. (242 U, S. Wise v. Watts (244 U, S. 661).

745 613)

20 Wister, Shimer v. (244 U. S. 652).. 650 Western Union Tel. Co., Gardner v. (243 Withnell v. William R. Bush Const. Co. U. S. 644).. 405 (243 U. S. 633).

481 Western Union Tel. Co., Louisville & N. R. Witte v. Shelton (244 U, S. 660).

745 Co. v. (242 U. S. 665)...

240 W. J. McCahan Sugar Refining Co., LuckWestern Union Tel. Co. y. Louisville & N. enbach v. (242 U. S. 638)....

111 R. Co. (244 U. S. 649).

743 Wolf, Van Thyn y. (243 U. S. 641) 404 Westinghouse Electric & Mfg. Co. v. Wag- Wood, Spring Garden Ins. Co. of Philadelner Electric Mfg. Co. (242 U. S. 640).. 112

phia, Pa., V. (242 U. S. 631)..

15 Westphalen, Jaffe v. (242 U. S. 426). 139 Wood '& Selick, United States v. (243 U. S. Wetzel v. United States (242 U. S. 648)... 242 97)

346 W. F. Jacoby & Co., Pennsylvania R. Co. v. Woods v. Atlantic Coast Line R. Co. (243 (242 U. S. 89)..

49
U. S. 645). .

. 406 Whitacre, Baltimore & O. R. Co. v. (242 U.

Woodworth, Chesbrough v. (244 U. S. 72). . 579 S. 169)

33 Woodworth' v. Chesbrough (244 U. S. 79). . 583 White, Ex parte (242 U. S. 625).

245 Wyoming v. Colorado (243 U. S. 622)... 379 White, Chin Hing v. (244 U. S. 655). 653 White, New York Cent. R. Co. v. (243 U. S. 188)

247
Yang-Tsze Ins. Co., Furness, Withy & Co.

141 Wichita Falls & N. W. R. Co. v, Puckett

v. (242 U. S. 430).

567 (242 U. S. 619).

Yankaus v. Feltenstein (244 U. S. 127)

214 Wildcat, United States v.

239
Yazoo & M. V. R. Co. v. United States (242

241 Wildcat, United States v. (244 U. S. 111).. 561 Yee Suey v.' Berkshire (242 U. S. 639).

U. S. 621).

111 Wilder, Colburn v. (242 U. S. 657).

17 Wile Sons & Co., United States v. (243 U. S. 97)

346 Zavaglia v. Notarbartolo (243 U. S. 628).. 403 William Cramp & Sons Ship & Engine Bldg. Zenith S. S. Co., Schwede v. (244 U. S. Co. v. International Curtis Marine Tur

646)

652 bine Co. (243 U. S. 637).

402 Ziegler v. Carnegie Trust Co. (242 U. S. William Openhym & Sons, United States v. 668)

244 (243 U. S. 97).

346 Zimmerman, Chautauqua Inst. v. (242 U. S. William P. Ellison, Inc., v. Hagar (244 642)

114 U. S. 656).

742 Zuttermeister, Chicago Title & Trust Co. v. William R. Bush Const. Co., Withnell v. (242 U. S. 629).

14 (243 U. S. 633)..

481

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OASES

ARGUED AND DETERMINED

IN THE

UNITED STATES SUPREME COURT .

OCTOBER TERM, 1916.

(242 U. S. 1)
INTER-ISLAND STEAM NAVIGATION favor of plaintiff in a personal-injury ab-
COMPANY, Limited, Piff. in Err., tion. Dismissed for want of jurisdiction.

See same case below, 232 Fed. 809.
GEORGE E. WARD.

The facts are stated in the opinion.

Mr. W. 0. Smith for plaintiff in error. COURTS 387(1) ERROR TO CIRCUIT COURT OF APPEALS-CASE BROUGHT FROM

Mr. Alexander Britton, in behalf of Mr. HAWAIIAN SUPREME COURT.

E. A. Douthitt, for defendant in error. The change in the provisions of the Judicial Code, & 246,1 specifically governing Mr. Chief Justice White delivered the appeals from, and writs of error to, the opinion of the court: Hawaiian supreme court which is made by On writ of error prosecuted from the the amendatory act of January 28, 1915 court below to a judgment of the supreme (38 Stat. at L. 803, chap. 22), taking from court of Hawaii, rendered in a case where. the Federal Supreme Court its existing ju. there was no Federal question and no di. risdiction to review any judgment of the Hawaiian supreme court if the amount in-versity of citizenship, the judgment was af. volved exceeds a certain sum, and confer- firmed and the case was brought here. By ring such jurisdiction upon the circuit court a motion to dismiss, our jurisdiction is disof appeals for the circuit to which Hawaii puted, and to dispose of it requires a conbelongs, compels the conclusion that the Fed. sideration of g 246 of the Judicial Code, as eral Supreme Court may not, by virtue of amended by the act of January 28, 1915 the general provisions of the Judicial Code, (38 Stat. at L. 803, chap. 22). $ 241,2 governing the appellate jurisdiction of that court over the circuit courts of ap: “writs of error and appeals from the final

That amendment provides, first, that peals, review a final decision of the circuit court of appeals on writ of error to the judgments and decrees of the supreme court Hawaiian supreme court in a case in which of the territory of Hawaii and of the suthere was no Federal question and no diver- preme court of Porto Rico may be taken and sity of citizenship.

prosecuted to the Supreme Court of the [Ed. Note.-For other cases, see Courts, Cent. United States .. in the same classes Dig. $$ 1033-1036 ; Dec. Dig. 387(1).)

of cases, in which writs of error and appeals [No. 638.]

from the final judgments and decrees of the

highest court of a state in which a decision Submitted October 9, 1916. Decided October in the suit could be had, may be taken and 30, 1916.

prosecuted to the Supreme Court of the United States

." And this is imN ERROR to the United States Circuit mediately followed by a provision giving

Court of Appeals for the Ninth Circuit power to this court to review by certiorari to review a judgment which affirmed a judg. "in all other cases, civil or criminal, in the ment of the Supreme Court of the territory supreme court of the territory of Hawaii or of Hawaii, affirming on a second writ of er the supreme court of Porto Rico.” The next ror a judgment of the Circuit Court of the and separate sentence which follows these First Judicial Circuit of that territory, in provisions and which concludes the amend.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 37 S. C.-1. * Comp. St. 1913, $ 1223. Comp. St. 1913, § 1218.

ment is this: "Writs of error and appeals the terms of the amendatory act of 1915. from the final judgments and decrees of the This is plain when it is considered that the supreme courts of the territory of Hawaii two classes of cases enumerated in the and of Porto Rico, wherein the amount in- amendment of 1915 were practically in volved, exclusive of costs,

exceeds the same terms expressed in the prior acts, the value of $5,000, may be taken and pros- which conferred reviewing jurisdiction in ecuted in the circuit courts of appeals.” both classes exclusively upon this court, and

The argument supporting jurisdiction is that the only substantial change made by that as, by the general provisions of the the amendatory act was to take from this judiciary act of 1891 [26 Stat. at L. 828, court the jurisdiction to review in the secchap. 517], now embraced in § 241 of the ond enumerated class and confer it upon Judicial Code (36 Stat. at L. 1157, chap. the circuit court of appeals to which Hawaii 231, Comp. Stat. 1913, § 1218), power exists belonged. And, indeed, there is nothing in in this court to review by error or appeal the context of the statute which countethe final decisions of the circuit courts of nances the view that the statute intended to appeals in all cases where the jurisdiction of merely take away the jurisdiction of this the trial court did not depend upon diversity court in one class of cases, and, at the same of citizenship, or where the case was not time, to restore jurisdiction as to the same otherwise by provisions of law expressly class by means of a power conferred or conmade final in the circuit courts of appeals, templated to exist to review on error or aptherefore power to review exists, since this peal the judgments and decrees of the circase is not in one of the excepted classes. I cuit court of appeals. Besides, as the But the contention overlooks the fact that remedy intended to be afforded by the from the beginning and continuously up to amendment of 1915 was evidently the rethe adoption of the amendment of 1915, ap. stricting of the jurisdiction of this court, peals and writs of error to the supreme to the end that the burden on its docket courts of Hawaii and of Porto Rico were might be lightened, we cannot construe that not left to be controlled by the law general- amendment as frustrating the purpose ly applicable to courts of the United States, which it was adopted to accomplish. Ameri. as expressed in the judiciary act of 1891, or can Secur. & T. Co. v. District of Columbia, as found in the provisions of the Judicial | 224 U. S. 491, 495, 56 L. ed. 856, 857, 32 Code, re-adopting that act, but were govern- Sup. Ct. Rep. 553. ed by special provisions controlling the sub- Dismissed for want of jurisdiction. ject,-a purpose which is exemplified by

sum.

A of

(242 U. S. 7) PORTUGUESE-AMERICAN BANK OF 389, 215 Fed. 81. The subject matter is the SAN FRANCISCO, Appt.,

fourth progress payment, which, on Decem

ber 5, 1910, had been authorized by the PAUL I. WELLES, John Daniel, Trustee of board of public works of the city. On that Metropolis Construction Company, Bank- day the Construction Company applied to rupt, and Thomas F. Boyle.

the appellant bank for a loan of $30,000,

secured by an order on the auditor of the MUNICIPAL CORCORATIONS 373(1)

LIENS – ASSIGNMENT-By Public Con city, authorizing the bank to draw from TRACTOR VALIDITY AS AGAINST SUB. the city for the above and other amounts CONTRACTOR-PROGRESS PAYMENT.

not in controversy here. The bank deAn assignment of a progress payment clined until the order should be accepted for work done under a coniract for a public by the auditor, whereupon, on the next day, improvement is valid--the municipality not the order was presented to the auditor's objecting—as against any rights of a sub

office and stamped as received on December contractor who thereafter served notice on the municipality to withhold payment. as

6. The order was intended and taken as permitted by Cal. Code, Civ. Proc. § 1184, an assignment, and, after it had been although such assignment did not receive stamped, was accepted by the bank as sethe consent of the board of public works, curity and the money was advanced. The and the contract expressly provided that next day $5,000 more was advanced on the without such consent the contractor shall same security, notes being given for each not “either legally or equitably assign any

The appellee Welles was a subconof the moneys payable under the contract tractor, and on December 12 and 16 served or his claim thereto."

(Ed. Note.--For other cases, see_Municipal Cor- notice on the city to withhold payment, as porations, Cent. Dlg. $ 913; Dec. Dig. Om373(1).] permitted by § 1184 of the Code of Civil

Procedure of the state of California. It is (No. 45.]

admitted by Welles that if the assignment Argued October 27, 1916. Decided Novem. was valid, his rights are subordinate to it ber 13, 1916.

(Newport Wharf & Lumber Co. v. Drew, ,

125 Cal. 585, 58 Pac. 187); and the only PPEAL from the United States Circuit question argued on his behalf is whether to review a decree which reversed a decree rupt and the city made the assignment void. of the District Court for the Northern Dis.

The contract provided that the contractor trict of California, approving the report of should keep the work under his personal a referee adverse to the claim of a subcon- control, and should not assign or sublet the tractor upon a public work of a lien upon whole or any part thereof without the cona progress payment due to the principal consent of the board of public works. It furtractor. Reversed.

ther declared that no subcontract should See same case below, 128 C. C. A. 161, relieve the contractor of any of his obliga211 Fed. 561; on rehearing, 131 C. C. A. tions, and that he should not, “either legal389, 215 Fed. 81.

ly or equitably, assign any of the moneys The facts are stated in the opinion.

payable under the contract or his claim Messrs. William R. Harr, George A. thereto unless with the like consent.” The Knight, Charles J. Heggerty, James B. city has made no objection to the assignFeehan, and Joseph W. Beretta for appel- ment to the bank, and the money now lant.

awaits the decision of this court as between Messrs. Harold Remington, F. H. Dam, the claimant of the lien and the prior asR. T. Devlin, W. H. Devlin, A. F. Morrison, signee. P. F. Dunne, W. I. Brobeck, Milton J. Green, There is a logical difficulty in putting an. and George J. Hatfield for appellees. other man into the relation of the, cove

nantee to the covenantor, because the facts Mr. Justice Holmes delivered the opin- that give rise to the obligation are true only ion of the court:

of the covenantee,-a difficulty that has been This is a suit brought by the appellee met by the fiction of identity of person and Welles to establish a lien upon a debt of | in other ways not material here. Of course, $6,830.85, due under a construction con- a covenantor is not to be held beyond his tract from the city of San Francisco, repre undertaking, and he may make that as narsented by the appellee Boyle, to the bank- row as he likes. Arkansas Valley Smelting rupt, Metropolis Construction Company. Co. v. Belden Min. Co. 127 U. S. 379, 32 L. The district court approved the report of ed. 246, 8 Sup. Ct. Rep. 1308. But when the referee against the claim and in favor has incurred a debt, which is property of the appellant, but this decree was re- in the hands of the creditor, it is a differversed by the circuit court of appeals. 128 ent thing to say that, as between the credi. C. C. A. 161, 211 Fed. 561; 131 C. C. A. tor and a third person, the debtor can re

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

v.

ITY

strain his alienation of that, although he against assignment is inserted only for the could not forbid the sale or pledge of other benefit of the city. Whether that form of chattels. When a man sells a horse, what expression is accurate or merely is an inhe does, from the point of view of the law, i direct recognition of the principle that we

It is to transfer a right, and a right being re- have stated hardly is material here. garded by the law as a thing, even though is enough to say that we are of opinion that, a res incorporalis, it is not illogical to ap- upon the facts stated, the assignment was ply the same rule to a debt that would be not absolutely void, that therefore the bank applied to a horse. It is not illogical to got a title prior to that of Welles, and consay that the debt is as liable to sale as it sequently that the decree must be reversed. is to the acquisition of a lien. To be sure, See Hobbs v. McLean, 117 U. S. 567, 29 L. the lien is allowed by a statute subject to ed. 940, 6 Sup. Ct. Rep. 870; Burnett v. which the contract was made, but the con- Jersey City, 31 N. J. Eq. 341; Fortunato tract was made subject also to the common v. Patten, 147 N. Y. 277, 41 N. E. 572. law, and if the common law applies the Decree reversed. principle recognized by the statute of California that a debt is to be regarded as a Mr. Justice McKenna dissents for the thing, and therefore subjects it to the ordi- reasons stated by the circuit court of apnary rules in determining the relative rights peals. of an assignee and the claimant of a lien, it does nothing of which the debtor can complain. See further, Cal. Civ. Code,

(242 U. S. 13) $$ 954, 711. The debtor does not complain, LOUISVILLE & NASHVILLE RAILROAD but stands indifferent, willing that the com.

COMPANY, Plff. in Err., mon law should take its course. The circuit court of appeals relied large

NATHAN PARKER, as Administrator of

the Estate of Edward Parker. ly upon Burck v. Taylor, 152 U. S. 634, 38 L. ed. 578, 14 Sup. Ct. Rep. 696, some ex-COMMERCE On 27(7) – EMPLOYERS' LIABILpressions in which, at least, seem to war

WHEN SERVANT IS ENGAGED IN rant the conclusion reached. But that case,

"INTERSTATE COMMERCE." as understood by the majority of the court; engine, who was killed by striking a ca

1. A railway tireman on a switching was quite different from this. A contract boose on the main track while his engine for the building of the Capitol of Texas was was transferring an empty car from one made not assignable without the consent of switch track to another, was employed in the governor and certain others. The con interstate commerce, although the car was tractor assigned an undivided three-fourths not itself moving in such commerce, if this interest to Taylor, Babcock, & Company, movement was simply for the purpose of with the required assent, and then three reaching and moving an interstate car. sixteenths without assent to three others Dec. Dig. 27(7).

(Ed. Note.-For other cases, see Commerce, severally, one of whom conveyed one thirty First and Second Series, Interstate Commerce.]

For other definitions, see Words and Phrases, second to the plaintiff. The contractor APPEAL AND ERROR ww213–QUESTION Not made another conveyance of all his rights RAISED BELOW. under the contract to Taylor, Babcock, & 2. A judgment against a railway comCompany, and Taylor, Babcock, & Company pany, in favor of the administrator of a made what purported to be a transfer of deceased employee, will not be reversed bethe entire contract to Abner Taylor, the de- cause of the erroneous assumption below fendant. Both of these transfers were as

that a railway fireman, who was killed by sented to. In the latter, Taylor purported his engine was transferring from one switch

striking a caboose on the main track while to bind himself to the state to perform the track to another, for the ulterior purpose original contract, and, in the assent to the of interstate commerce, an empty car, not same, the governor and other authorities itself moving in interstate commerce, was stated that they recognized Taylor as the not engaged in such commerce, although it contractor, bound as the original contractor is admitted that there could be no recovwas bound. The court held that there was ery if the deceased

engaged, a novation (p. 650), and that Taylor acted go to the jury on the question whether the

where the railway company did not ask to without notice of the plaintiff's claim (p. deceased was engaged in interstate com. 653). Upon those facts it would be hard merce, but simply asked the court to direct to make out any right of the plaintiff to a verdict on the ground, among others, that proceeds of the new contract that Taylor it appeared as matter of law that he was had performed.

so engaged, since, if that question had been

left to the jury, and they had disbelieved The assignability of a debt incurred un

the testimony that the empty car was moved der a contract like the present sometimes is for the ulterior purpose of interstate comsustained on the ground that the provision merce, there would have been no error of

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

was

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