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Payment being by the cubic yard, the loss of extra embankment, made necessary by the settling of the batture beneath, falls on Government.

The work was to be done “ at such places as shall be directed by the" Government engineer. Quære, on whom loss by shrinkage, and the action of the current, fell. — Clark v. United States, 6 Wallace, 543. See ILLEGAL CONTRACT.


CORPORATION. R. was appointed trustee of a bank deprived of its charter on quo warranto to collect debts due the same, and apply the proceeds in payment of debts of said bank. After R. had paid said debts, he was ordered to pay the surplus to F., as receiver for the stockholders, which he did, including notes of L. given to R. for a debt due said bank. Held, that L.'s debt was not extinguished by the forfeiture of the bank's charter, and that F. could sue in R.'s name. — Lum v. Robertson, 6 Wallace, 277.


Costs. When a case is remanded from a court for want of jurisdiction, costs in said court cannot be decreed. The Mayor v. Cooper, 6 Wallace, 247.

COURT OF CLAIMS. 1. Under the act of March 3, 1863, § 5, the right of either party to appeal from a judgment of the Court of Claims to the Supreme Court of the United States is absolute.

By the third rule of the Supreme Court on the subject, the limitation of time ceases to run after a sufficient indication of intent to exercise said right, although the appeal be not completed by the finding of the facts, &c., and by its allowance by the Court of Claims till afterwards.

An appeal may be taken by filing an application for its allowance with the clerk, either in session, recess, or vacation.

A finding set out the evidence in extenso, without determining the conclusions established by the same, as required by the rules of the Supreme Court. The case was remanded without dismissal.

A finding that an allegation of fraud is not sustained by the evidence without setting out the evidence, is of the character required by the rules. — United States v. Adams, 6 Wallace, 101.

2. After a claim to a military bounty land warrant had been rejected by the Commissioner of Pensions and Secretary of the Interior, the Court of Claims decreed that the claimant recover such a warrant. Held, that, by act of March 3, 1863, § 7, it could only give judgments for money. The cause was afterwards re-instated on motion of the United States under the act of March 3, 1863, $ 5. United States v. Alire, 6 Wallace, 573.



But if not, not being objected to until the request for instructions when the case was in, it could not be then. Roberts v. Graham, 6 Wallace, 578.


A bill showing that complainants had no title was dismissed.

Semble, a bona fide assignee of a judgment against joint-tortfeasors is not barred from levying against certain of defendants by a secret agreement of his assignor with them, previous to said judgment, that if they would not resist the suit he would not levy on their property. - Selz v. Unna, 6 Wallace, 327.


FRAUD. 1. Land was conveyed, by a deed without reservations, for a valuable consideration, part of which was a parol agreement that the vendor might use said land for a year free of rent, which he did. Held, that the conveyance was void as to creditors. Lukins v. Aird, 6 Wallace, 78.

2. A sale of a mortgaged railroad set aside for fraud on the facts. Among other things, the notice of sale set forth that the mortgage debt was $2,000,000, and that $70,000 interest was due; it being in fact less than $200,000 (MILLER, J., dissenting). James v. Railroad Co., 6 Wallace, 752. See Court of CLAIMS, 1; PLEADING AND PRACTICE, 11; SALE, 2. GENERAL OF THE ARMY. — See JURISDICTION, 1.

HABEAS CORPUS. Under the act of Feb. 5, 1867, an appeal lies from the judgment of a Circuit Court on a writ of habeas corpus, when exercising original as well as appellate jurisdiction. — Ex parte McCardle, 6 Wallace, 318.

ILLEGAL CONTRACT. Under the Act of July 13, 1861, § 5, and the President's proclamations of Aug. 16, 1861, and April 2, 1863, commercial intercourse between the enemy and residents of New Orleans, after May 6, 1862, could not be licensed by the military authorities, but only by the President. A neutral purchaser of cotton illegally bought by such a resident from the enemy takes no better title than his vendor. The Ouachita Cotton, 6 Wallace, 521. See FRAUD; JUDICIAL SALE, 1.

INDIAN. Choctaw heads of families take the land allowed for their children by Art. 14, of the treaty of 1830, between the United States and the Choctaws, free from any trust for said children.

But if this were not so, a patent of such land having been made out by the United States to a Choctaw head of a family without any such trusts expressed therein, a bona fide purchaser from him will not be charged with the same constructively because he knew his grantor was a Choctaw head of a family, entitled to a


JURISDICTION. 1. A bill to enjoin the Secretary of War, General of the Army, and District Commander from carrying out the Acts of March 2 and 23, 1867, on the ground that their doing so would destroy the corporate existence of the State, was dismissed, on motion, for want of jurisdiction. — State of Georgia v. Stanton, 6 Wallace, 50.

2. A maritime lien is the foundation of a proceeding in rem.

The admiralty has not, therefore, jurisdiction of such a proceeding against a bridge. The Rock Island Bridge, 6 Wallace, 213.

3. A bill was brought to set aside a judgment in the Circuit Court, and a lease which was given to secure the same. A company, which had become the equitable owners of the judgment and lease, was admitted as a defendant, and filed a crossbill to enforce the same. The original bill was dismissed below on the merits, and the cross-bill for want of jurisdiction, as both parties were of the same State. The first decree was affirmed, the second reversed. Railroad Companies v. Chamberlain, 6 Wallace, 748.

4. After judgment against a city on its bonds, and nulla bona returned to the execution, a bill in equity is not the proper remedy to compel the levying of a tax to pay it, but a mandamus. – Walkley v. Muscatine, 6 Wallace, 481.

5. If a plain defect of jurisdiction appears at the hearing, or on appeal, a court of equity will not make a decree.

When a suit, required by a State code to be brought by the real party in interest, is removed to the Federal court under $ 12 of the Judiciary Act, if the action is in substance one at common law, although said code abolishes the distinction of law and equity, the plaintiff must bring an action at law, not a bill in equity, and his title to sue will be recognized. — Thompson v. Railroad Companies, 6 Wallace, 134.

6. When a counterclaim is filed by the defendant in an action in a State court, the original plaintiff cannot, on discontinuing his suit, remove the counterclaim into the Federal court as defendant in a suit commenced against him, within the Judiciary Act, § 12. — West v. Aurora City, 6 Wallace, 139.

7. If it appear, from the opinion of the State court only (although the same is required, by a State law, to be filed among the papers of a case), that there was a point in the case which was a ground of decision, but which was not within the Judiciary Act, $ 25, the Federal court will take jurisdiction of an appeal, notwithstanding. Rector v. Ashley, 6 Wallace, 142.

8. A writ of error to a decision of a State court, allowing a libel in rem against a domestic vessel for supplies furnished in a home port, was dismissed, as it did not appear that the validity of the statute giving the remedy was actually passed upon. — The Victory, 6 Wallace, 382.

9. Error to a Louisiana decision, made after the State had seceded. It did not appear on the record that the competency of the court below had been questioned. The writ was dismissed on motion, for want of jurisdiction, under $ 25 of the Judiciary Act. Walker v. Villavaso, 6 Wallace, 124. See Hamilton Company v. Massachusetts, ib. 632; Williamson v. Suydam, ib. 723, 737.

10. The reservation in the Act of July 6, 1842, left the fact of habitation and cultivation open to be litigated between adverse claimants. Decision on the facts.

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