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B. JURISDICTION OF CIRCUIT COURTS OF THE UNITED STATES. 1. While it is true that alterations in the jurisdiction of State Courts can
not affect the jurisdiction of the Circuit Courts of the United States, so long as the equitable rights themselves remain; yet an enlargement of equitable rights may be administered by the Circuit Courts as wel
as by the Courty of the State. Holland v. Challen, 15. 2. Under the act of March 30, 1875, ch. 137, 18 Stat. 470, a cause cannot
be removed from a State court to a Circuit Court of the United States after a trial has been had in a State court, and judgment rendered and set aside, and new trial ordered, and the term passed at which
this was done. Holland v. Chambers, 59. 3. Under the third subdivision of $ 639 Rev. Stat., a suit cannot be re
moved from a State court, unless all parties on one side of the controversy are different citizens from those on the other. Sering Machine Companies, 18 Wall. 553, and Vannevar v. Bryant, 21 Wall. 41, ad
hered to. American Bible Society v. Price, 61. 4. Where a daughter of a testator commenced suit in a State court to set
aside the will, and the executors were the trustees of a small trust fund under the will, the use of which was to be enjoyed by the daughter during her life, and which was to go to her children on her decease: Held, That the executors were necessary parties to the suit, and if they were citizens of the same State as the daughter, the cause could not be removed into the Circuit Court of the United States, under the third subdivision of $ 639 Rev. Stat. even though the leg. atees and devisees of the great mass of the estate were citizens of other
States. Id. 5. § 1, ch. 137, act of March 3d, 1875, 18 Stat. 470, confers upon Circuit
Courts of the United States original jurisdiction in controversies between citizens of different States, or citizens of a State and foreign States, citizens or subjects, where the matter in dispute exceeds, exclusive of costs, the sum of five hundred dollars, and further provides as follows: “Nor shall any Circuit or District Court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes, negotiable by the law merchant, and bills of exchange." $ 2 of that act authorizes the removal of similar causes as to parties and amounts from State courts to Circuit Courts of the United States, but without imposing the restrictions as to assignees and assignments. Held, That the restriction upon the commencement of suits contained in $ 1 does not apply to the removal of suits under $ 2. Claflin v.
Commonwealth Insurance Company, 81. 6. A verdict was taken, subject to the opinion of the court upon a case to
be made, with liberty to either party to turn the case into a bill of exceptions. A case was made setting forth the entire evidence at the
trial, but it was not made an agreed statement of facts, nor were exceptions taken, nor was any finding of facts made: Held, That there was no basis for the assignment of errors. Redfield v. Ystalyfera Iron Com
pany, 174. 7. A bill filed on the equity side of the court to restrain or regulate judg
ments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, not being an original suit, but ancillary and dependent, supplementary merely to an original suit out of which it arose, can be maintained without reference to the citizenship or residence of the parties. Freeman v. Howe, 24 How. 450, followed, and the language of NELSON, J., in
the opinion of the court adopted. Krippendorf v. Hyde, 276. 8. When property in possession of a third person claiming ownership is
attached by a marshal on mesne process issuing out of a Circuit Court of the United States as the property of a defendant, citizen of the same State as the person claiming it, such person has no adequate remedy against the marshal in the State court, and may seek redress in the Circuit Court having custody of the property by ancillary proceedings; as, for instance, if the original proceeding is in equity, by & petition pro interesse suo, or by ancillary bill, or by summary motion, according to circumstances; or if it is at common law, by a summary motion or by a proceeding in the nature of an interpleader; or if proceedings authorized by statutes of the State in which the cause is pending afford an adequate remedy, by adopting them as part of the practice of the court. Id.
1. It has been the invariable policy of Congress to measure the amount of
public lands granted to a land-grant railroad by the length of the road as actually constructed, and not by its length as originally located; and there is nothing in the statutes of Congress or of the State of Iowa applicable to the grant of public lands in favor of the plaintiffs in error which indicates a different purpose, or which warrants the claim that the number of sections which they are entitled to receive is to be estimated by the standard of the original location of
the road. Celar Rapids & Missouri River Railroad v. Herring, 27. 2. When Congress grants to a State, for a railroad company, every alternate
section of land designated by odd numbers within a given distance
VOL. CX - 49
from the line of the road, and directs the Secretary of the Interior, when a map shall be filed in that department, showing the location of the road, to reserve the sections, and further provides that in case it is found that the United States had disposed of any of these odd sections, or rights attached to them by pre-emption or otherwise, the grantee might select other alternate odd sections within another and greater distance from that line, the filing of the map cuts off the right of entry of the odd sections within the first named distance; but it confers no right to specify tracts within the secondary or indemnity tract, until the grantee's right of selection has been exercised ; and that right cannot be exercised until the entire road has been completed.
Id. 3. The act of June 2d, 1864, $ 4, 13 Stat. 96, 97, construed. Id.
Under the act of May 31st, 1878, ch. 146, which enacts that when any
United States legal tender notes may be redeemed or received into the Treasury, and shall belong to the United States, they shall be reissued and paid out again, and kept in circulation; notes so issued are a legal tender. Legal Tender Case, 421.
See CONSTITUTIONAL LAW, A, 3.
See JUDGMENT LIEN;
MORTGAGE, 1, 2.
LIMITATIONS, STATUTE OF.
1. An action to recover back a tax illegally exacted, when the commis
sioner of internal revenue, on appeal, delays his decision more than six months from date of the appeal, may be brought within twelve months from that date, whether a decision shall then have been made or not; or the claimant may wait for the decision, and bring his action
at any time within six months thereafter. James v. Hicks, 272. 2. An appeal to the commissioner of internal revenue against a tax alleged
to have been illegally exacted being rejected by him for informality in the preparation of the papers, a second appeal was taken within the proper period and rejected: Held, That in fixing a date when a suit to recover back the tax alleged to have been illegally exacted would be barred by the statute of limitations, the second appeal was the one contemplated by the statute. Id.
8. In Alabama, by statute, an action against the surety of an executor, for
any misfeasance or malfeasance of his principal, must be brought within six years after the cause of action has accrued, and not afterwards, the time to be computed from the act done or omitted by the principal, which fixes the liability of the surety; and, until there is a judicial ascertainment of the default of the principal, the liability of
the surety is not fixed. Alexander v. Boyan, 414. 4. Such judicial ascertainment must be something more than auditing of
accounts, or an ascertainment or judgment that a distributee's share is so much, or that the distributee is entitled to so much. There must be a decree ordering payment and on which process to collect
can issue against the principal. Id. 6. The construction usually given to statutes of limitations, that a disa
bility mentioned in the act must exist at the time the action accrues in order to prevent the statute from running, and that after it has once commenced to run no subsequent disability will interrupt it, is to be given to Rev. Stat. $ 1008, prescribing the time within which writs of error shall be brought or appeals taken to review in this court judgments, decrees or orders of a Circuit or District Court in any
civil action at law or in equity. McDonald v. Hocey, 619. 6. The English and American cases construing statutes of limitations as
affected by disability provisos reviewed. Id. 7. A suit by a lessor to recover of a lessee rents which, during the re
bellion, by order of the commanding general in the department where the property was situated, had been paid to the military authorities and appropriated to the use of the United States, is an action subject to the limitations prescribed by the act of March 3d, 1863, 12 Stat. 755, and May 11th, 1866, 14 Stat. 46, for the commencement of suits for seizures made during the rebellion by virtue or under color of authority derived from or exercised under the President or under any act of Congress. Harrison v. Myer, 92 U. S. 111, cited and approved.
Mitchell v. Clark, 633. 8. In a plea setting up the defence of the limitations prescribed by the
statutes of March 3d, 1863, 12 Stat. 755, and May 11th, 1866, 14 Stat. 46, it is not necessary to set forth the language of the order of the commanding general. This case distinguished from Bean v. Beckwith, 18 Wall. 510. Id.
See CONSTITUTIONAL LAW, A, 7;
STATUTES, A, 5.
This court will refuse an application for an injunction to stay proceedings
begun in a State court before the filing of a libel to obtain the benefit of the limited liability act, 9 Stat. 635, when it appears that both courts below decided against the petitioner's right to the benefit of the act, and that no cause for granting the petition is shown except the expense consequent upon trials in State courts pending the appeal. The Mamie, 742..
See CLAIMS CONVENTION WITH MEXICO.
The act of 1835, 4 Stat. 755, which provided that ten cents & mile
should be allowed to naval officers for travelling expenses while travelling under orders, made no distinction between travelling in and travelling out of the country. It was not repealed by the act of April 17th, 1866, 14 Stat. 38, nor by the act of July 15th, 1870, 16 Stat. 332, and was in force during the whole time that the travel was performed which is sued for, and its plain provisions are not affected by a contrary construction long put upon it by the Naval Department. United States v. Temple, 105 U. S. 97, approved and followed. United States v. Graham, 219.
MILITARY LAND WARRANT.
See PUBLIC LANDS.
1. A purchaser of a railroad at a sale under decree of foreclosure of a first
mortgage and of sale of the mortgaged property, which recites that the sale shall be made subject to liens established or to be established (on references before had or then pending, to a master, with right to bondholders to appear and oppose) as prior and superior liens to the lien of the bonds issued under the mortgage, cannot dispute the validity of the liens thus established, even on the ground of fraud alleged to have been discovered after confirmation of the master's
report fixing the amount of the liens. Swann v. Wright, 590. 2. Whether holders of the mortgage bonds may not contest such liens,
and, if successful, be substituted to so much thereof as was estab