Where this court in a collision case directed a decree dividing the damages as between the two vessels, and allowing to the owners of the cargo of one vessel a full recovery against the other vessel; and the court below, upon the production of the mandate of this court, refused to permit the latter vessel to recoup against the other one half the damages to the cargo, it was held that the remedy was by a new appeal and not by mandamus from this court, no disobedience of the mandate being shown. The Union Steamboat Co., 317.
ATTACHMENT.
See NATIONAL BANK, 5.
1. The provisions of the second clause of section 23 of the Bankrupt Act of 1898 control and limit the jurisdiction of all courts, including the several District Courts of the United States, over suits brought by trustees in bankruptcy to recover or collect debts due from third parties, or to set aside transfers of property to third parties, alleged to be fraudulent as against creditors, including payments in money or property to preferred creditors. Bardes v. Hawarden Bank, 524.
2. The District Court of the United States can, by the proposed defendant's consent, but not otherwise, entertain jurisdiction over suits brought by trustees in bankruptcy to set aside fraudulent transfers of money or property, made by the bankrupt to third parties before the institution of the proceedings in bankruptcy. Ib.
3. A District Court of the United States has no jurisdiction, without the proposed defendant's consent, to entertain an action of replevin by a trustee in bankruptcy to recover goods conveyed to the defendant by the bankrupt in fraud of the Bankrupt Act and of his creditors. Bardes v. Hawarden Bank, ante, 524, followed. Mitchell v. McClure, 539. 4. A District Court of the United States has jurisdiction, by the proposed defendant's consent, but not otherwise, to entertain a bill in equity by a trustee in bankruptcy to recover property conveyed to the defendant by the bankrupt in fraud of the Bankrupt Act and of his creditors. Bardes v. Huwarden Bank, ante, 524, followed. Hicks v. Knost, 541.
5. After an adjudication in bankruptcy, an action of replevin in a state
court cannot be commenced and maintained against the bankrupt to
recover property in the possession of and claimed by the bankrupt at
the time of that adjudication, and in the possession of a referee in
bankruptcy at the time when the action of replevin is begun; and the
District Court of the United States, sitting in bankruptcy, has jurisdic-
tion by summary proceedings to compel the return of the property
seized. White v. Schloerb, 542.
1. The appropriation and disposition of water in California is a public use,
and the right to collect tolls or compensation for it is a franchise, sub-
ject to regulation and control in the manner prescribed by law, and
such tolls cannot be fixed by the contract of the parties. Osborne v.
San Diego Land and Town Company, 22.
2. It is not for the court to go into the reasonableness of the established
rates, which are sought to be enforced in this case, but if the consum-
ers are dissatisfied with them, resort must first be had to the body des-
ignated by law to fix proper rates, the board of supervisors of the
county. Ib.
CASES AFFIRMED OR FOLLOWED.
1. The judgment in High v. Coyne, ante, 111, is followed in this case.
Fidelity Insurance Co. v. McClain, 113,
2. Knowlton v. Moore, ante, 41, followed in this case as to the points there
decided. Murdock v. Ward, 139.
3. Plummer v. Coler, ante, 115, affirmed and followed in this case. Ib.
4. Knowlton v. Moore, ante, 41, and Murdock v. Ward, ante, 139, followed.
Sherman v. United States, 150.
5. It results from the conclusions announced in No. 603, ante, 548, that the
writ of error in this case must be dismissed.
Beckham (No. 2), 548.
See BANKRUPTCY, 3, 4;
CONTRACT, 6, 7, 8;
INHERITANCE TAX, 6.
1. The act of Congress of March 3, 1891, concerning coal mines, makes three
requirements: (1) Ventilation of not less than fifty-five feet of pure air
per second, or 3300 cubic feet per minute for every fifty men at work,
and in like proportions for a greater number; (2) proper appliances and
machinery to force the air through the mine to the face of working
places; (3) keeping all workings free from standing gas; and if either
of these three requirements was neglected, to the injury of the plaintiff's
intestates, the defendant was liable. Deserant v. Cerillos Coal Rail-
road Co., 409.
2. The act does not give to mine owners the privilege of reasoning on the
sufficiency of appliances for ventilation, or leave to their judgment the
amount of ventilation that is sufficient for the protection of miners. 1b.
3. It does not allow standing gas, but requires the mine to be kept clear of
it, and if this is not done the consequence of neglecting it cannot be
excused because some workman may disregard instructions. Ib.
4. It is the master's duty to furnish safe appliances and safe working places,
and if the neglect of this duty concurs with that of the negligence of a
fellow-servant, the master is liable. Ib.
5. On the issues made, and on the evidence, and regarding the provisions
of the act of Congress, the instructions given by the trial court to the
jury were erroneous.
1. It is a doctrine firmly established that the law of a State in which land
is situated controls and governs its transmission by will or its passage
in case of intestacy. Clarke v. Clarke, 186.
2. The courts of a State where real estate is situated have the exclusive
right to appoint a guardian of a non-resident minor, and vest in such
guardian the exclusive control and management of land belonging to
said minor, situated within the State.
3. When a suit does not really and substantially involve a dispute or con-
troversy as to the effect or construction of the Constitution or laws of
the United States, upon the determination of which the result depends,
it is not a suit under the Constitution and laws; and it must appear
on the record, by a statement in legal and logical form, such as is re-
quired in good pleading, that the suit is one which does really and
substantially involve a dispute or controversy as to a right which
depends on the construction of the Constitution, or some law or treaty
of the United States, before jurisdiction can be maintained on this
ground. Western Union Telegraph Co. v. Ann Arbor Railroad Co., 239.
4. Bills were filed in Tennessee by the American National Bank and others
against the Carnegie Land Company, a Virginia corporation, doing
business in Tennessee under the provisions of the act which was under
review in Blake v. McClung, 172 U. S. 239 ; 176 U. S. 59 ; and also against
various creditors of that company. The prayer of the bill was that
it might be taken as a general creditors' bill; and it was alleged that
the company was insolvent, having a large amount of property in the
State, which it had assigned for the benefit of its creditors, without
preferences, which was in disregard of the statute of the State, that a
receiver should be appointed, the assets marshaled and the creditors
paid according to law. The company answered denying that it was
insolvent, and claimed that the assignment should be held valid, and
the trust administered by the assignees. During the pendency of the
suit, Sully and Carhart, New York creditors, filed a bill, setting up
that nearly all the assets, if not all of them in the hands of the assignee
of the company, and sought to be impounded by the bill filed by the
bank, were covered and conveyed to Sully, as trustee, and that Carhart
was entitled to priority over all other creditors of the defendant in the
appropriation of the assets covered by the deed of trust to Sully.
They asked for leave to file that bill as a general bill against the land
company, or, if that could not be done, that they might file it in the
case of the bank against the land company, as a petition in the nature
of a cross-bill against that company. Other proceedings took place
which are set forth in detail in the statement of the case. They ended
in the consolidation of the various proceedings into one action and a
reference to a master to take proof of all the facts. The master made
his report, upon which a final decree was entered. It was decreed that
the land company, by its deed of general assignment, of June 3, 1893,
in making disposition therein for the payment of its creditors, without
any preferences, attempted to defeat the preferences given by law to
creditors, residents of Tennessee, over non-resident creditors and mort-
gagees, whose mortgages were made subsequent to the creation of
the debts due resident creditors, and that such deed was fraudulent in
law, and void; that the making of the deed was an act of insolvency
by the land company, and that the bill filed by the bank was properly
filed, and should be sustained as a general creditors' bill, and that the
assets of the company under the jurisdiction of the court were subject
to distribution under the law relating to foreign corporations doing
business in Tennessee, and as such should be decreed in the action
then pending. The decree further adjudged that Carhart was a bona
fide holder of the bonds mentioned in his bill, and that he was entitled
to recover thereon as provided for in the decree, but subject to the
payment of debts due residents of Tennessee prior to the registration
of such mortgage. It was also decreed that the Travelers' Insurance
Company by its mortgage acquired a valid lien upon the property cov-
ered by it, subordinate, however, to debts due residents of Tennessee
contracted prior to the registration thereof, and also subject to some
other liabilities of the land company. The case was taken to the
Court of Chancery Appeals, which modified in some particulars the
decree of the chancellor, and after such modification it was affirmed.
Upon writ of error from the Supreme Court the case was there heard,
and that court held that the statute in question, providing for the dis-
tribution of assets of foreign corporations doing business in that State,
was constitutional, and was not in contravention of any provision of
the Constitution of the United States. The decree of the Court
of Appeals was, after modifying it in some respects, affirmed. The
case was then brought here on writ of error. Held: (1) That on
an appeal from a state court the plaintiff in error in this court must
show that he himself raised the question in the state court which he
argues here, and it will not aid him to show that some one else has
raised it in the state court, while he failed to do so; but if he raised
it in the Supreme Court of the State, it is sufficient; (2) that the
allegation in Carhart's case that he was a resident of New York is a
sufficient allegation of citizenship, no question having been made on
that point in the courts below; (3) that a Tennessee general creditor
has the same right of preference as against a resident mortgagee that
he has against a non-resident, and the same burden that is placed upon
non-resident mortgagees and judgment creditors is by the statute
placed upon resident mortgagees and judgment creditors; (4) that
there is no foundation for the claim made, on behalf of Carhart, that
section 5 of the Tennessee act of 1877 violates section 1 of the Four-
teenth Amendment to the Constitution of the United States, in that it
deprives the non-resident mortgagee of his property without due pro-
cess of law; but, on the contrary, the question has been decided the
other way in Blake v. McClung; (5) that there has been no denial by
the State of Tennessee of the equal protection of the laws to any person
within its jurisdiction. Sully v. American National Bank, 289.
5. Under a statute of Connecticut, a contract was entered into between
the city of Bridgeport and a railroad company providing that the city
should pay one sixth of the expense of abolishing grade crossings, and
also of increasing the tracks of the company from two to four. De-
fendants, whose lands were sought to be condemned for this purpose,
objected upon the ground that the agreement of the city to pay one
sixth of the expense of increasing the number of tracks was a practical
donation by the city to the railroad company in violation of the state
constitution, and was also a taking of their property without due proc-
ess of law under the Fourteenth Amendment to the Federal Constitu-
tion. Held, that the Supreme Court of the State having decided that
the right to condemn the land did not depend upon the obligation of
the city to pay a part of the expenses, and that the defendants could
not prevent a condemnation by showing that the company might not
afterwards obtain a reimbursement from the city, and also that the de-
fendants, not alleging that they were taxpayers or specially interested,
were not in any position to question the validity of the proceedings, it
followed that their property was not taken without due process of law.
Wheeler v. New York, New Haven & Hartford Railroad Co., 321.
6. Within the meaning of the constitutional provisions relating to actions
instituted by private persons against a State, this suit, though in form
against an officer of the State of California, is in fact against the State
itself. Smith v. Reeves, 436.
7. By § 3669 of the Political Code of California, which provides that any
person dissatisfied with the assessment made upon him by the State
Board of Equalization, may, after payment and on the conditions named
in the act, bring an action against the state Treasurer for the recovery
of the amount of taxes and percentage so paid to the Treasurer, or any
part thereof, the State has not consented to be sued except in its own
courts. Ib.
8. It was competent for the State to couple with its consent to be sued on
account of taxes alleged to have been exacted under illegal assessments
made by the state board, the condition that the suit be brought in one
of its own courts. Ib.
9. A suit brought against a State by one of its citizens is excluded from the
judicial power of the United States, even when it is one arising under
the Constitution and laws of the United States, and the same rule ap-
plies to suits of a like character brought by Federal corporations
against a State without its consent.
10. By the Revised Statutes of the United States it is provided: "§ 5508. If
two or more persons conspire to injure, oppress, threaten, or intimidate
any citizen in the free exercise or enjoyment of any right or privilege
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