4. Proceedings were commenced to foreclose a railroad mortgage in which
the trustee of the mortgage, the railroad company, and others were
respondents, and one bondholder originally, and another by interven-
tion, were complainants. A decree was entered that the complainants
were entitled to have a sale of the mortgaged property upon failure of
the company to pay an amount to be fixed by reference to a master
within a time to be named by the court, and an order of reference
was made. The master reported, and a decree of foreclosure was
entered in which the trustee was directed to sell the mortgaged prop-
erty, "at such time and place and in such manner as the court may
hereafter determine:" and a reference was ordered to a master to
report the extent and amount of the prior liens on the mortgaged
property, "full and detailed statements " of the property "subject to
the lien of said general mortgage," and "what liens, if any, are upon
the several properties" of the railroad company, "junior to said gen-
eral mortgage and the order of their priority." Held, that this was
not a final decree, which terminated the litigation between the parties
on the merits of the case, and that the appeal must be dismissed.
Parsons v. Robinson, 112.
5. On the 6th of October, 1880, a decree was entered in a Circuit Court of
the United States dismissing a bill brought to quiet title. Complain-
ant appealed, and the appeal was dismissed at October Term, 1880, it
not appearing that the matter in dispute exceeded $5000. In the
Circuit Court W. then suggested the complainant's death, appeared as
sole heir and devisee, filed affidavits to show that the amount in dis-
pute exceeded $5000, and took another appeal August 30, 1881, which
appeal was docketed here September 24, 1881, and was dismissed
April 5, 1884, for want of prosecution. Another appeal was allowed
by the Circuit Court in September, 1884, and citation was issued and
served, and the case was docketed here again. Held, that the decree
appealed from being rendered in 1880, an appeal from it taken in
1884 was too late. Whitsitt v. Union Depot Co., 363.
6. This court has no power to review a judgment of the Superior Court of
the state of Kentucky, unless it appears not only that the judgment is
one of the class in which the statute of that state provides that the
judgment of that court may be final, but also that an application was
made, within proper time, for an appeal to the Court of Appeals, and
that the application was refused by the Superior Court. Fisher v.
Perkins, 522.
7. This court cannot dismiss a case for want of jurisdiction here, because
the court below ought to have dismissed it. Lanier v. Nash, 630.
See EXCEPTION, 1, 2, 3;
PRACTICE, 7.
B. JURISDICTION OF CIRCUIT COURTS OF THE UNITED STATES.
1. If a bill in equity to restrain an infringement of letters-patent be filed
before the expiration of the patent, the jurisdiction of the Circuit
Court is not defeated by the expiration of the patent by lapse of time
before the final decree. Beadle v. Bennett, 71.
C. JURISDICTION OF DISTRICT COURTS OF THE UNITED STATES.
When an assignee in bankruptcy files a petition in the District Court, sit-
ting in bankruptcy, under § 5063 of the Revised Statutes, showing a
dispute between him and others, as to property which has come into
his possession, or which is claimed by him, the court-all parties
interested appearing, and asking a determination of the dispute - has
power to determine, at least, the question of title. Adams v. Collier,
382.
LA CROSSE AND MILWAUKEE RAILROAD FORECLOSURE.
1. The consent of bondholders required by the statute of Wisconsin to
enable the plaintiff in error to commence proceedings for the foreclos-
ure of the mortgage of the La Crosse and Milwaukee Railroad was
duly given; and the outstanding bonds which were not actually sur-
rendered and exchanged for stock were held by persons who, in law,
must be regarded as consenting by silence to the proceedings, and the
present holders took them with full notice of that fact.
Barnes v.
Chicago, Milwaukee & St. Paul Railroad, 1.
2. The plaintiff in error has no title under which he can maintain a bill in
equity to take advantage of alleged frauds or irregularities in the
foreclosure of prior liens upon the La Crosse and Milwaukee Railroad;
or to recover money paid by the Milwaukee and Minnesota Railroad
Company to redeem the Bronson and Soutter mortgage of that rail-
road. lb.
1. Following the decisions of the Supreme Court of Georgia, this court
holds that the act of the legislature of Georgia, of March 16, 1869,
which provided that actions upon contracts or debts "which accrued
prior to the 1st of June, 1865, and are now barred, shall be brought
by 1st January, 1870, or both the right and right of action to enforce
it shall be forever barred " is an ordinary statute of limitations; that
it was a personal privilege of the debtor to plead it; and that to avail
himself of it he must plead it. Sanger v. Nightingale, 176.
2. The proposition that a purchaser with the legal title, whose right ac-
crued subsequent to a mortgage debt barred by the statute of limita-
tions, can avail himself of the statute, when sued to foreclose the
equity of redemption, has been sustained in Georgia only in cases
where the party setting it up has become the owner of the title or
of the entire equity of redemption, or has been found in possession of
the mortgaged property. Ib.
3. An assignee in bankruptcy cannot transfer to a purchaser the bank-
rupt's adverse interest in real estate in the possession of another
claiming title, if two years have elapsed from the time when the cause
of action accrued therefor in the assignee; and the right of the pur-
chaser in such case is as fully barred by the provisions of Rev. Stat.
§ 5057, as those of the assignee. Wisner v. Brown, 214.
4. It is unnecessary to decide in this case whether the provisions contained
in Rev. Stat. § 5063 refer to a case in which only the interest of the
bankrupt is ordered to be sold, without attempting to affect the title
or interest of other persons. Ib.
5. A promissory note, secured by mortgage of the same date, is not taken
out of the statute of limitations as against the debtor, by a writing
signed by him, by which "in consideration of the indebtedness de-
scribed in the" mortgage, a claim of his against the government, and
its proceeds, are "pledged and made applicable to the payment of
said indebtedness, with interest thereon at the rate of eight per cent
per annum until paid," and he promises that those proceeds shall "be
applied to the payment of said indebtedness, with interest as afore-
said, or to so much thereof as "those proceeds "are sufficient to pay."
Shepherd v. Thompson, 231.
6. Section 5057 of the Revised Statutes, prescribing the limitation of two
years as to suits touching any property or rights of property transfer-
able to or vested in an assignee in bankruptcy, applies as well to suits
by the assignee as to suits against him. Adams v. Collier, 382.
7. When an assignee files his petition in the District Court, sitting in
bankruptcy, showing a dispute between him and others as to property
in his possession as such assignee, and the parties sued appear and
unite in the prayer for the determination of the suit, and the assignee,
after the expiration of two years, without the consent of the defend-
ants dismisses his suit and files a bill in equity in the Circuit Court
covering substantially the same object, the latter suit is to be deemed
a continuation of the former for the purposes of limitation prescribed
by § 5057 of the Revised Statutes. Ib.
See COURT OF CLAIMS;
EQUITY PLEADING, 3.
LIMITED LIABILITY.
See COLLISION, 2, 3.
1. In Illinois, under an unverified plea of the general issue in assumpsit
against a common carrier for goods lost, the defendant may at the trial
deny his liability under the bill of lading; § 34 of the Practice Act
having no application to such a denial. St. Louis, Iron Mountain &
Southern Railway v. Knight, 79.
2. The lien law and the redemption law of the state of Indiana considered.
Porter v. Pittsburg Bessemer Steel Co., 267.
3. The effect of a redemption under the Revised Statutes of Indiana,
§§ 770 to 776, considered. Ib.
4. In Pennsylvania a private survey cannot be received in evidence for the
purpose of making out a title from the proprietaries, even though it
may have been referred to in other surveys; and parol and circum-
stantial evidence is inadmissible to establish such a survey. Paxton v.
Griswold, 441.
5. The non-return of a survey to the land office in Pennsylvania for one
hundred and thirty years is proof of abandonment. Ib.
6. The rules adopted in the land office in Pennsylvania in 1765 made no
alteration as to returns of surveys, which before that date were
required to be returned to the land office, in order that it might
appear by the records of that office what lands were alienated, and
what not. Ib.
7. In Pennsylvania, unless a survey is returned to the land office in a
reasonable time, which time has been fixed by the courts of that state,
at seven years, it is regarded as abandoned. Ib.
8. In Mississippi an insolvent debtor may make a general assignment of
his property for the benefit of his creditors, with preferences. Estes v.
Gunter, 450.
9. A deed by an insolvent debtor in Mississippi to secure securities on his
note made in advance of, and in contemplation of, a general assign-
ment for the benefit of creditors is valid under the laws of that state,
although containing a provision that the grantor shall remain in
possession until the maturity of the note. Ib.
10. The sixty days during which a right of appeal is given by the statutes
of Nebraska from the assessment of damages by commissioners ap-
pointed under proceedings for the condemnation of land for the use of
a railroad, begin to run when the commissioners' report is filed.
Clinton v. Missouri Pacific Railway, 469.
See CONSTITUTIONAL LAW, 1;
CORPORATION, 1;
LIMITATION, STATUTES OF, 1, 2;
TAX AND TAXATION, 4, 5, 6.
1. Allegations of material facts and of traversable facts in a declaration
which are necessary to be proved in order to support a recovery, are
confessed by a default; and in mandamus against the proper munici
pal officers to enforce the collection of a tax to pay the judgment
entered against a municipal corporation upon such default, the
respondent is estopped from denying such allegations. Harshman v.
Knox County, 306.
2. Mandamus to enforce the collection of a tax to pay a judgment against
a municipal corporation being a remedy in the nature of an execution,
nothing can be alleged by the respondent to contradict the record of
the judgment. Ib.
3. An application for mandamus against the head of an executive depart-
ment abates on his retirement from office. Warden v. Chandler, 642.
When a servant, in the execution of his master's business, receives an
injury which befalls him from one of the risks incident to the business,
he cannot hold the master responsible, but must bear the consequences
himself. Tuttle v. Detroit, Grand Haven & Milwaukee Railway, 189.
See RAILROAD, 3.
MAXWELL LAND GRANT.
See PUBLIC LAND, 2-6.
1. When there are surface outcroppings from the same vein within the
boundaries of two claims, the one first located necessarily carries the
right to work the vein. Argentine Mining Co. v. Terrible Mining Co.,
478.
2. When a mining claim crosses the course of the lode or vein instead of
being "along the vein or lode," the end lines are those which measure
the width of the claim as it crosses the lode: and thus the lines which
separate the locations of the parties in this case are end lines across
which, as they are extended downward vertically, the defendant can-
not follow a vein, even if the apex or outcropping is within its surface
boundaries. Ib.
A motion to dismiss a case in which the record has not been printed will
not be granted if the motion papers present the case in a way requir-
ing the court to refer to the transcript on file. Maag v. Hyde, 632.
MUNICIPAL BONDS.
See CONSTITUTIONAL LAW, 1;
MANDAMUS, 1, 2.
MUNICIPAL CORPORATION.
See CONSTITUTIONAL LAW, 1;
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