Appeal-Taken in Time.

BRANDRES and others v. COCHRANE and others, U. S. Sup. Ct., Oct. 1 srm, 1881. Appeal from the circuit court of the United States for the northern district of Illinois. On motion to dismiss because the appeal was not taken within two years after e try of decree. The decision was rendered by the supreme court of the United States on March 13, 1882. Mr. Chief Justice Waite delivered the opinion of the court, denying the motion.

Where complainants prayed an appeal on the day the decree was entered, which was allowed upon their giving bond according to law, and on the day before the expiration of the two years the circuit judge approved a bond for an appeal and signed a citation, which were filed with the clerk, and afterwards entered an order allowing the appeal nunc pro tunc, as of the date of approval of the bond, the taking of the security and the signing of the citation were an allowance of the appeal, and no formal order of allowance was necessary, and the appeal was taken in time.

John S. Mont, for appellants.

Edwin F. Bailey, for appellees.

Cases cited in opinion: Sage v. Railroad Co. 96 U. S. 714; Draper v. Davis, 102 U. S. 371.

Appeal-Matter in Dispute.

RUSSELL V. STANSELL, U. S. Sup. Ct., Oct. Term, 1881. Appeal from the district court of the United States for the northern district of Mississippi. The decision was rendered in the supreme court of the United States on March 13, 1882. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the appeal for want of jurisdiction.

Where several land-owners are assessed by court commissioners, each for small sums, and each liable only for his own assessments, the matter in dispute, as regards their right of appeal, is the separate amounts assessed to each, and not the aggregate amount; and the distinct and separate interests cannot be united for the purpose of making up the necessary amounts to give jurisdiction on appeal.

H. T. Ellett, for appellees.

Cases cited: Paving Co. v. Mulford, 100 U. S. 148; Seaver v. Bigelow, 5 Wall. 208; Rich v. Lambert, 12 How. 347; Stratton v. Jarvis, 8 Pet. 41; Oliver v. Alexander. 6 Pet. 143.

Damages-Province of Jury.

CITY OF MANCHESTER V. ERICSSON, U. S. Sup. Ct., Oct. Term, 1881. Error to the circuit court of the United States for the eastern district of Virginia. The controversy in this case was on the question whether the city or a bridge company was responsible for the condition of the street in such a manner as to incur liability for negligence in the care of it. The decision was rendered in the supreme court of the United States on April 17, 1882. Mr. Justice Miller delivered the opinion of the court, reversing the judgment of the circuit court, and remanding the cause, with instructions to grant a new trial. The fact that the city owned stock, and had advanced money to the corporation which held the title to the bridge, does not make the city responsible

for defects in the approaches to the bridge, but whether the city by its action had treated the embankment as a street, or an extension of a street, is a question of fact for the jury.

P. Phillips, W. A. Maury, and C. C. McCrae, for plaintiffs in error.

C. V. Meredith and G. K. Macon, for defendant in error.

Practice.

HITCHCOCK V. BUCHANAN and another, U. S. Sup. Ct., Oct. Term, 1881. Error to the circuit court of the United States for the southern district of Illinois. The decision was rendered by the supreme court of the United States on April 10, 1882. Mr. Justice Gray delivered the opinion of the Court.

Where a bill of exchange was manifestly a draft of a company and not of the individuals by whose hands it is subscribed, and it purports to be made at the office of the company, and directs the drawees to charge the amount thereof to the account of the company, of which the signers describe themselves as president and secretary, will not bind the agents personally.

Thomas G. Allen, for plaintiff in error.

Charles W. Thomas, for defendants in error.

Cases cited: Sayre v. Nichols, 7 Cal. 535; Carpenter v. Farnsworth, 106 Mass. 561; Dillon v. Bernard, 21 Wall. 430; Binz v. Tyler, 79 III. 248.

Duties on Imports.

HENRY V. FIELD and others, U. S. Sup. Ct., Oct. Term, 1881. Error to the circuit court of the United States for the western district of Illinois. The decision was rendered on March 20, 1882, in the supreme court of the United States. Mr. Justice Field delivered the opinion of the court, approving the judgment of the circuit court.

"White linen torchon laces and insertings" are "thread lace and insertings," and are liable for duties only to the amount prescribed for articles of that kind; and are not classed as a manufacture of flax, or of which flax is the component material or chief value, “not otherwise provided for."

S. F. Phillips, Solicitor General, for plaintiff in error.

John H. Thompson and Edward S. Isham, for defendants in error.

Practice-Bill of Exceptions-Internal Revenue.

UNITED STATES v. RINDSKOPF and others, U. S. Sup. Ct., Oct. Term, 1881. Error to the circuit court of the United States for the eastern district of Wisconsin. The decision in this case was rendered in the supreme court of the United States on April 24, 1882. Mr. Justice Field delivered the opinion of the court, reversing the judgment, and remanding the case for a new trial.

Only such parts of the charge of the court should be given as would point the exceptions; and, so, inserting the entire evidence in the record is objectionable practice. The assessment of the commissioner of internal revenue is only prima facie evidence of the amount due as taxes upon distilled spirits. If not impeached, it is sufficient to justify a recovery; but every material fact upon which liability is asserted is open to contestation. An instruction that the assessment is to be taken as an entirety, and that the government is enti

tled to recover the exact amount assessed, or not any sum, is erroneous, unless an erroneous rate has been adopted by the officer, or where it is impossible to separate from the property assessed the part which is exempt from the tax, or where its validity depends upon the jurisdiction of the commissioner.

S. F. Phillips, Solicitor General, for plaintiff in error.

J. B. C. Cottrell, L. Abraham, and C. E. Mayer, for defendants in error. Case cited as to practice: Lincoln v. Laflin, 7 Wall. 137.

Patents Novelty and Utility.

LEHNBENTER v. HOLTHAUS, U. S. Sup. Ct., Oct. Term, 1881. Appeal from the circuit court of the United States for the eastern district of Missouri. This case was decided in the supreme court of the United States on March 6, 1882. Mr. Justice Woods delivered the opinion of the court, reversing the decision of the circuit court, and remanding the cause for further proceeding. A patent, as against a party proved to have infringed it, is prima facie evidence of both novelty and utility.

Obstruction to Navigation.

ST. LOUIS . THE KNAPP Co., U. S. Sup. Ct., Oct. Term, 1881. Appeal from the circuit court of the United States for the eastern district of Missouri. The case was decided in the supreme court on March 4, 1882. Mr. Justice Harlan delivered the opinion of the court, reversing the judgment, and remanding the case for further proceedings according to law.

A public navigable stream must remain free and unobstructed, and no private individual has a right to place permanent structures within the navigable channel; and if a proposed run-way, when completed, proves to be a material obstruction to the free navigation of a river, or a special injury to the rights of others, it may be condemned and removed as a nuisance. Where the complaint avers that defendant proposes to do the act, and the averment is accompanied by the general charge that "the driving of piles in the bed of the river and the construction of the run-way will not only cause a diversion of the river from its natural course, but will throw it east of its natural course, from along the river bank north and south of the proposed run-way and piling," it is a sufficiently certain and minute allegation of facts, and not a case of a threatened nuisance only, and is not demurrable on the ground of uncertainty. In most cases general certainty is sufficient in pleadings in equity, and where the pleading distinctly apprises the defendant of the precise case the pleading is sufficient.

Leverett Bell, for appellant.

J. M. & C. H. Kram, for appellee.

COUNTY OF SAN MATEO v. SOUTHERN PACIFIC R. Co.

(Circuit Court, D. California. 1882.)

1. REMOVAL OF CAUSE-DEFENSE UNDER CONSTITUTION AND LAWS.

It is sufficient, to maintain the jurisdiction of the circuit court in a cause removed from a state court, that the defense necessarily involves a construction of a clause of the federal constitution.

2. SAME ASSESSMENT OF PROPERTY OF RAILROAD.

The validity of the assessment of the property of a railroad company, and of the provisions of state law discriminating between the assessment for taxation of the property of such companies and the property of individuals; and whether the fourteenth amendment of the federal constitution applies to artificial as well as to natural persons, may depend upon the proper construction of such amendment; and the right of the company to a reduction in the estimated value of its property assessed for taxation, by the amount of the morgtage due thereon, depends upon the construction of said amendment, and constitutes a case for relief arising under the constitution and laws of the United States, and is removable into the circuit court.

3. SAME-ACT OF 1875-VALIDITY OF.

The terms "suits of a civil nature, " used in the act of 1875, providing for the removal of causes from the state court into the circuit court, are less comprehensive than the term "cases," in the fourteenth amendment of the federal constitution, as the latter may embrace proceedings not usually nor strictly termed suits, as well as prosecutions of a criminal nature. There can, therefore, be no question as to the validity of the legislation of congress.

FIELD, Justice. This is an action to recover of the Southern Pacific Railroad Company, a corporation created under the laws of California, certain state and county taxes levied upon its property for the fiscal year of 1880 and 1881, and alleged to be due to the plaintiff, with an additional 5 per cent. for their non-payment and interest. It was commenced in the superior court of the county of San Mateo.

The railroad company, among other things, sets up in its answer. as a defense substantially this: That by the thirteenth article of the constitution of the state a mortgage or other obligation, by which a debt is secured, is treated, for the purposes of assessment and taxation, as an interest in the property affected; that, "except as to railroad and other quasi public corporations," the value of the property less the value of the security is to be assessed and taxed to the owner, and the value of the security is to be assessed and taxed to its holder, (section 4;) that by the same article the franchise, roadway, road-bed, rails, and rolling stock of railroads, operated in more than one county, are to be assessed by the state board of equalization at their actual value, and apportioned to the counties, cities, or towns in v.13,no.4-10

which the roads are located, in proportion to the number of miles of railway laid therein, (section 5;) that at the time of and previously to the assessment of the property of the railroad company, upon which the taxes claimed in this action were levied, there existed a mortgage upon the property, executed for advances made for the construction and equipment of the road, exceeding $3,000 for each mile of the same, no part of which has been paid except the accruing interest, and the whole of which was and still is a lien thereon; that the state board of equalization, acting under the authority of the provisions of the state constitution, assessed, as the property of the railroad company, its franchise, roadway, road-bed, rails, and rolling stock at what was deemed to be their actual value, without allowing any deduction for the mortgage subsisting thereon, and thus made, as between the property of individuals, and that of the railroad company, an unjust and unlawful discrimination against the company; and that the state constitution, in its discriminating provisions, conflicts with the inhibition of the fourteenth amendment of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. Upon that inhibition the company relies to defeat the assessment, or at least to reduce it by such deductions as are made in the estimate for taxation of the value of property held by individuals.

The railroad company also sets up among other things, as a further defense to the action, substantially this: That the section of the thirteenth article of the state constitution, which confers all the authority possessed by the state board to make the assessment complained of, is itself invalid in this: that while it is self-executing, requiring no legislation for its enforcement, it makes no provision for affording to the owners of the property assessed an opportunity to be heard respecting its valuation, but authorizes the board to act without notice to them, without receiving any information from them, and without liability to have its action reviewed, and, if erroneous, corrected by any other tribunal, making its judgment, however arbitrary and capricious, final and conclusive. And the company contends that in thus not affording to it an opportunity to be heard respecting the valuation of its property, while an opportunity is afforded to individuals for the correction of errors in the assessed value of their property, a discrimination is made against railroad companies within the inhibition of the fourteenth amendment.