that the real party in interest was the State.
proceedings the money was paid into court on an interlocutory decree.
The State then came in and claimed it: Held, That the sum named in
the bond in question was not a penalty to secure the performance of a
condition, which could be discharged on payment of such damages as
might be proved to have arisen from non-performance; but that it
was in the nature of a statutory penalty for the non-performance of a
statutory duty, and that it was not necessary for the State to show
any actual damage or injury from the breach, in order to be entitled
to recover when the breach was proved. The law and cases on this
subject considered and reviewed. Clark v. Barnard, 436.
CERTIORARI.
See JURISDICTION, A, 6;
PRACTICE, 6.
See DISTRICT OF COLUMBIA, 1 (2).
It is culpable negligence in the managers of a railroad, if their servants
permit a car to stand upon a side track for five or ten minutes before
the arrival of a train upon the main track, and to remain there until
the arrival of that train in such a position that the incoming train
must strike it; and it entails liability upon the company as a common
carrier for accidents happening in consequence. Farlow v. Kelley, 288.
1. While the local law, giving the right of redemption first to the mort-
gagor, then to judgment creditors, is a rule of property obligatory
upon the federal court, it is competent for the latter by rules to pre-
scribe the mode in which redemption from sales under its own decrees
may be effected. Connecticut Mutual Life Insurance Company v. Cush-
man, 51.
2. The rule in the Circuit Court of the United States for the Northern
District of Illinois, requiring a judgment creditor to pay the redemp-
tion money to the clerk of that court, and not to the officer holding
the execution, sustained as being within the domain of practice, and
not affecting the substantial right to redeem within the time fixed by
the local statute.
3. The assignees of a debtor under a general assignment for the ratable
distribution of his property among his creditors, purporting to be
made under a local insolvent law of the State in which the debtor re-
sides, deposited for convenience the proceeds of the sales of the debt-
or's property in a bank in another State. In the latter State, creditors
of the debtor obtained judgment and execution against him. The
execution being returned unsatisfied, the judgment creditors, under a
local law of the latter State, obtained the appointment of a re-
ceiver of the debtor's property within that State. The receiver there-
upon brought suit against the assignees for the sum so deposited,
claiming it as the property of the debtor: Held, That the receiver
was not entitled by reason of any conflict between the local statute
and Bankrupt Act, or by force of the judgment and the proceedings
thereunder, to the possession of the assigned property or of its proceeds,
as against the assignees, or to a priority of claim, or the benefit of the
judgment creditors upon such proceeds. Boese v. King, 379.
4. Where a State court enjoined a municipal officer from enforcing a tax
to pay a municipal obligation, and subsequently to the injunction a
judgment for payment of the interest which it was agreed should be
made by the assessment and collection of the tax was recovered in a
Circuit Court of the United States, the injunction cannot stand in the
way of the enforcement of the tax by the circuit court, to carry its
judgment into execution. Hawley v. Fairbanks, 543.
See CORPORATION, 3;
EXECUTOR AND ADMINISTRATOR ;
JUDGMENT, 1.
1. The history of article XI. of the amendment to the Constitution which
provides that the judicial power of the federal courts shall not extend
to suits against a State by a citizen of another State, or by citizens or
subjects of a foreign State, and the causes which led to its adoption,
reviewed. New Hampshire v. Louisiana: New York v. Same, 76.
2. That amendment prohibits the court from entertaining jurisdiction of
a cause in which one State seeks relief against another State on behalf
of its citizens, in a matter in which the State prosecuting has no in-
terest of its own unless the State prosecuted consents. One State
cannot create a controversy with another State, within the meaning of
that term as used in the judicial clauses of the Constitution, by assum-
ing the prosecution of debts owing by the other State to its citizens.
Id.
3. The relation of one of the United States to its citizens is not that of an
independent sovereign State to its citizens. A sovereign State seeking
redress of another sovereign State on behalf of its citizens can resort
to war on refusal, which a State cannot do. Id.
4. The qualification of the duty of a sovereign State to assume the collec-
tion of the debts of its citizens from another sovereign State consid-
ered and stated. Id.
5. The question considered as to when the opinion of the highest court of
a State may be examined for the purpose of ascertaining whether the
judgment involves the denial of any asserted right under the Consti-
tution, laws, or treaties of the United States. Gross v. United States
Mortgage Company, 477.
6. In view of the statutory requirement that the justices of the Supreme
Court of Illinois shall file and spread at large upon the records of the
courts written opinions in all cases submitted to it, such opinions may
be examined, in connection with other portions of the record, to ascer-
tain whether the judgment or decree necessarily involves a federal
question within the reviewing power of this court. Id.
7. The act of the general assembly of Illinois, in force July 1st, 1875,
validating loans or investments previously made in that State by cor-
porations of other States or countries authorized by their respective
charters to invest or loan money, is not in conflict with the contract
clause of the federal Constitution, nor with that part of the Four-
teenth Amendment forbidding a State from depriving any person of
property without due process of law. Id.
8. The Civil Code of Louisiana provided, in respect of tutors of minors,
as follows: "The property of the tutor is tacitly mortgaged in favor
of the minor from the day of his appointment as tutor, as security for
his administration, and for the responsibility which results from it."
The Constitution of Louisiana subsequently adopted (in April, 1868),
provided as follows: "No mortgage or privilege shall hereafter affect
third parties, unless recorded in the parish where the property to be
affected is situated. The tacit mortgages and privileges now existing
in this State shall cease to have effect against third persons after the
1st January, 1870, unless duly recorded. The general assembly shall
provide by law for the registration of all mortgages and privileges."
The legislature of Louisiana, on the 8th March, 1869, enacted the nec-
essary legislation to carry this provision of the State Constitution into
effect: Held, (1) That these provisions of the Constitution and of the
statute requiring owners of tacit mortgages to record them for the
protection of innocent persons dealing with the tutor, and giving
ample time and opportunity to do what was required, and what was
eminently just to everybody, did not impair the obligation of con-
tracts. (2) That these provisions are in the nature of statutes of lim-
itations. Previous decisions of the court respecting limitations re-
ferred to and approved. (3) That the fact that the plaintiff was a
minor when the law went into operation makes no difference. In the
absence of a provision in the Constitution of the United States giving
minors special rights, it is within the legislative competency of a State
to make exceptions in their favor or not, and the act in question made
no exception. Vance v. Vance, 514.
See JUDGMENT, 1;
JURISDICTION, A, 24, B;
PRIZE (3).
1. Where a vessel, before she breaks ground for a voyage, is so injured by fire
that the cost of her repairs would exceed her value when repaired, and
she is rendered unseaworthy and incapable of earning freight, a con-
tract of affreightment for the carriage of cotton by her to a foreign
port, evidenced by a bill of lading, containing the usual and customary
exceptions, and providing for the payment of the freight money on the
delivery of the cotton at that port, is thereby dissolved, so that the
shipper is not liable for any part of the freight money, nor for any of
the expenses paid by the vessel for compressing and stowing the
cotton. The Tornado, 342.
2. Several insurance companies having policies on the same property agreed
together to defend against claims for insurance, by a written instru-
ment of which the following is the material part: the said companies
will unite in resisting the claim made upon said policies, and on each
thereof, and in the defence of any and all suits and legal proceedings
that have been or may be instituted against any of said companies
upon any of said policies, and will, when and as required by the
committee hereinafter mentioned, contribute to and pay the costs, fees,
and expenses of said suits and proceedings pro rata; that is to say,
each company shall pay such proportion of said costs, fees, and ex-
penses as the amount insured by said company shall bear to the whole
amount insured on said property by all the companies subscribing to
this agreement. The management and conduct of said resistance to
said claims and defence of said suits and proceedings shall be and is
fully entrusted to and devolved upon a committee to be composed of
W. H. Brazier and James R. Lott, of the city of New York, Charles
W. Sproat, of the city of Boston, L. S. Jordan, of the city of Boston,
which committee shall have full power and authority to employ coun-
sel and attorneys to appear for said companies and each thereof, and
defend said suits and legal proceedings, and to employ other persons
for other services relative thereto, and to assess upon and demand and
receive from such companies, from time to time, as such committee
shall deem proper, such sum or sums of money for the compensation
of such counsel and attorneys, and such other persons, and all other
expenses of such defence of said suits as said committee shall deem
necessary and expedient; such assessment upon and payment by each
of said companies to be pro rata, as above mentioned. The committee
named in the agreement communicated it to the defendant in error,
and employed him as counsel in resisting the suits. On a suit for
professional service brought by him against the company jointly:
Held, That any contract there may have been between him and the
companies was several not joint. Adriatic Fire Insurance Company,
v. Treadwell, 361.
See DISTRICT OF COLUMBIA, 1 ;
PRINCIPAL AND AGENT;
SURETY;
A passenger who rests his elbow on the sill of an open window in a car,
but without protruding it beyond the car, and whose arm is then thrown
by the force of a collision outside of the car, and is injured in the
collision, does not contribute to the cause of the injury by his own
negligence. Farlow v. Kelley, 288.
1. Corporations may recover as plaintiffs for injuries done to their property
by a nuisance; and where the corporation plaintiff is a religious
corporation, and its members suffer personal discomfort and appre-
hension of danger in the use of the corporate property, the corporation
may recover for such injuries. A religious congregation has the same
right to the comfortable enjoyment of its church for its own purposes,
that a private individual has to the comfortable enjoyment of his house.
Baltimore & Potomac Railroad v. Fifth Baptist Church, 317.
2. Certificates of preferred stock of the Ohio and Mississippi Railway
Company were issued containing the following language: "The pre-
ferred stock is to be and remain a first claim upon the property of the
company, after its indebtedness, and the holder thereof shall be
entitled to receive from the net earnings of the company seven per
cent. per annum, payable semi-annually, and to have such interest paid
in full, for each and every year, before any payment of dividend upon
the common stock; and whenever the net earnings of the corporation
which shall be applied in payment of interest on the preferred stock
and of dividends on the common stock shall be more than sufficient to
pay both said interest of seven per cent. on the preferred stock in full,
and seven per cent. dividend upon the common stock, for the year in
which said net earnings are so applied, then the excess of such net
earnings after such payments shall be divided upon the preferred and
common shares equally, share by share:" Held, That the preferred
stockholders had no claim on the property superior to that of creditors
under debts contracted by the company subsequently to the issue of the
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