the pre-emption laws, being "known mines, "I
within the description of those laws. Held,
that no lands are "known mines," unless at
the time the rights of the purchaser accrued
there was upon the ground an actual and
opened mine, which had been worked, or was
capable of being worked. Colorado Coal &
Iron Co. v. United States, 131.
Action to annul patent.

30. The United States not being the real party in interest in an action by it to cancel a land patent obtained by fraud, it is affected by the laches of those whose interests it asserts, and a lapse of 45 years since the action accrued is a bar. United States v. Beebe, 1083.

31. The attorney general may institute a suit in equity, in the name of the United States, to annul a land patent obtained by fraud on the part of the patentee, where the government is under an obligation to issue a patent to the rightful owner of the land.-Id.* 32. The initiation and control of a suit in the name of the United States to annul a patent for land lies with the attorney general, as the head of one of the executive departments. FIELD, J., dissenting.-United States v. San Jacinto Tin Co., 850.

Fraud or mistake.

tion of the land to make it contain valuable ores of tin not within its limits if fairly surveyed; but it appeared that none of the officers named had any interest whatever in the grant at the time of the survey, except C., the chief clerk in the surveyor general's office, and that he had not, in any way, influenced the location of the survey, as shown by the testimony; and that the survey was contested at every step by interested parties, and was twice before the surveyor general, and twice before the commissioner in Washington, and finally decided after six months' consideration by the secretary of the interior, confirming the decision of the land-office. Held, that the fact of fraud was not established, although it further appeared that some of these officers, after the patent was issued, took shares in a joint-stock corporation organized to work the mine, but there was no proof that the shares were a voluntary gift, or were for services rendered in locating the survey; and the fairness of the purchase of these shares after the patent issued was sustained by affirmative testimony.-Id.

Bona fide purchasers.

36. It was alleged that certain of the United States government officials had, by means of fictitious persons, obtained patents for some mineral lands. It was fully established by the 33. In 1836 the application of S., defendant's evidence that there were in fact no actual setgrantor, to the proper United States land- tlements and improvements on any of the office for the purchase of a certain S. E. 4 lands, as falsely set out in the affidavits in section was duly accepted, and payment made. support of the pre-emption claims, and in the The office entries then made showed that he certificates issued thereon. Held, that it was had bought and paid for the S. E. 4, but the not such a fraud as prevents the passing of register, in writing the application and the the legal title by the patents, and that to a bill certificate thereon, by mistake described the in equity to cancel the patents upon those S. W. 4, which had been previously entered grounds alone the defense of a bona fide purby another. S., by himself or grantees, has chaser for value without notice was perfect. ever since held possession of the S. E. 14, as--Colorado Coal & Iron Co. v. United States, serted title, and paid taxes, not discovering 131. the mistake until after plaintiff's entry of the S. E. 4 in 1871. The office entries meanwhile had been altered without authority. Plaintiff had been familiar with the records for many years, and his testimony showed that the alteration was apparent. Held, that plaintiff was chargeable with notice of the rights of S., and a decree requiring him to convey the legal title to defendant should be sustained. Widdicombe v. Childers, 517.

34. A suit may be brought by the United States, in any court of competent jurisdiction, to set aside or annul a patent for land issued in its name, obtained by fraud or mistake, only when the government has an interest in the remedy sought, by reason of its interest in the land, or the fraud has been practiced on the government, and operates to its prejudice, or it is under obligation to some individual to make his title good by setting aside the fraudulent patent, or the duty of the government to the public requires such action.-United States v. San Jacinto Tin Co., 850.

37. When the government seeks, by a bill in equity, to cancel patents to mineral lands, on the ground that they had been obtained by fraud, the testimony must be clear, unequivocal, and convincing.-Id.

38. In an action by the government to cancel patents to mineral lands, on the ground that they had been obtained by fraud, where defendant's title rests upon the strongest presumptions of fact, which, although they may be rebutted, can be overthrown only by full proofs to the contrary, the burden of producing these proofs rests upon the government, and to raise a suspicion, however strong, of the fraud and wrong-doing of its own officers, is not enough to justify the government in casting upon defendants the burden of establishing their title.-Id. Affirmance of grant.

39. Where the United States supreme court, on appeal, affirms a decree of the district court confirming a land grant, it will, on motion, in35. In such a suit it was alleged that, at struct the district court to amend its decree the time the survey was made, the commis- by inserting therein a description of the lands sioner of the general land-office, the survey-confirmed, ascertaining by reference whether or general for California, the chief clerk of any of such lands have been sold, and, if so, the latter's office and the deputy who made declaring the mover entitled to scrip for other the survey were interested in the ownership equivalent lands.-United States v. De Moof the grant, and by fraud made a false loca-rant, 675.

adverse claim, estate, or interest in the prem-izes any county or incorporated town to sub-

1. Under Const. Ark. art. 12, § 6, giving the
legislature power to prevent excessive charges 5. Acts Tenn. 1868-69, c. 59, § 20, provides
by railroad companies, a regulation by the that the town of D. may make a corporate
legislature of three cents per mile as the max-subscription to the capital stock of the Missis-
imum to be charged for carrying passengers sippi River Railroad Company, not to exceed
will not be considered unreasonable, in that it $50,000 in amount, payable, in not exceeding
reduces the net income to 1% per cent. on the four years, by annual assessments levied by
original cost of the road, and to 2 per cent. on the board of trustees of said town, and collect-
the amount of its bonded debt, or as confiscated as other moneys are; and bonds of the town

may be issued in anticipation of such collec- | its terms, inapplicable to the rolling stock of
tions, collected for town purposes. Acts a foreign corporation, which is used on its
Tenn. 1869-70, c. 55, § 18, provides that stock leased railways within the state owned by
which has been subscribed, by any county, home corporations not exempt.-Marye v.
city, or incorporation, to railroad companies, Baltimore & O. R. Co., 1037.
may be payable in six annual payments; and 12. Act Cong. July 14, 1870, provides for a
the corporate authorities of any city or town tax of 2% per cent. on the undivided profits of
making such subscription may issue short a railroad company "which have accrued,
bonds, bearing interest, to said railroad com- been earned, and added to any surplus, con-
panies, in anticipation of the collection of an- tingent, or other fund" during and for the
nual levies, if thereby the construction of the year 1871. A railroad company used $102,738.30
roads can be facilitated. Held, that the town undivided profits during that year in the con-
of D. was not authorized to issue bonds pay-struction of new works. Held, that that sum
able in 10 years, in payment of a subscription was not taxable as profits for that year.-
to said railroad company.-Norton v. Town of Marquette, H. & O. R. Co. v. United States,
Dyersburg, 1111.

6. The grant of power to a municipality to
subscribe for stock in a railroad company does
not carry with it the implied power to issue
bonds therefor.-Id.

7. A municipality which has issued negoti-
able bonds in payment of a subscription to the
stock of a railroad company, where such bonds
are void for want of legislative authority for
their issue, will not, in an action brought
solely for the recovery on such bonds, be held
to respond to a liability for its subscription to
the stock of the railroad company.-Id.

8. Equity may, at the suit of a judgment
creditor of a railroad company, compel the
latter to assign its rights against a county
which has subscribed to its stock, but has no
jurisdiction to compel the county to issue its
subscription bonds to complainant, though the
railroad company had contracted to turn over
such bonds to him; such duty being only en-
forceable by mandamus against the county
officers, and the obligation to issue the bonds
being merely statutory, and not capable of
being pleaded as a pure money indebtedness.
-Smith v. Bourbon County, 1043.

Validity of bonds.

319.

Foreclosure of mortgages.

13. Where one railroad leases its line to an-
other, which is owned and operated by a third,
but the lease has been adjudged void, and the
lessee road issues bonds of which the third road
becomes the holder, and the bonds are fore-
closed and the proceeds held for distribution,
the lessor road has not an equity entitling it
to be paid its rental out of such proceeds in
precedence over the third road as a bond-
holder, on the ground that the third road, as
the owner of the lessor road, is really the
debtor for arrearages of rent. Railroad Co.
v. Railroad Co., 6 Sup. Ct. Rep. 1094, finding
the lease void, followed.-St. Louis, A. & T.
H. R. Co. v. Cleveland, C. C. & I. Ry. Co.,
1011.

14. While current earnings of a railroad are
first applicable to the payment of operating
expenses, and mortgage bondholders are
chargeable with such earnings misapplied by
payment to them, where no such diversion of
the earnings is shown, the operating expenses
are not entitled to be paid out of the proceeds
of the foreclosure sale in preference to the
claims of the bondholders.-Id.

9. In a suit for the payment of railroad
bonds issued by the town of Dayton, under from payment of the operating expenses to
15. Diversion of the earnings of a railroad
act of 1857, of Illinois, authorizing a town-payment of the interest on bonds is not shown
meeting to issue such bonds, upon the appli-
cation of a certain number of legal voters,
which act was held invalid, plaintiff claimed
the support of act of March 6, 1867, of Illinois,
which authorizes such meeting upon applica-
tion of "voters and tax-payers." Held, that
as it appeared from the bonds and the record
that they were issued under act of 1857, and
not 1867, a demurrer was properly sustained.
-Gilson v. Town of Dayton, 66.

Lease of road.

by the fact that through an extended period
the gross receipts would have been sufficient
to meet all operating expenses if no interest
had been paid, since at the times when there
was no default in the payment of operating
expenses, the earnings were rightfully appro-
priated to pay the interest.--Id.

ment for operating expenses of a railroad to
16. The equitable right of one claiming pay-
hold the bondholders for current earnings mis-
applied by payment to them, does not exist
against holders of second mortgage bonds for
earnings misapplied by payment of interest
on first mortgage bonds.-Id.

10. In an action by a railroad company to
recover for the use of its tracks, where there
was no definite agreement as to the amount
to be paid, the amount paid it by other roads,
17. Rent due for a leased line as a part of the
which in fact owned it, does not furnish the operating expenses, is not entitled to be paid
measure of damages, and, in the absence of out of the proceeds of a foreclosure sale in
proof that the use was worth more than had preference to the claims of the mortgage bond-
been paid, the plaintiff cannot recover.-holders, in the absence of a showing that the
Peoria & P. U. Ry. Co. v. Chicago, P. & S.
W. R. Co., 1125.*
Taxation.

11. Acts Gen. Assem. Va. 1881-82, § 20, c.
119, providing for taxation of the rolling stock
of "every railroad company not exempted
from taxation by virtue of its charter," is, by

bondholders have been benefited by the de-
fault in the payment of the rent.-Id.

18. Where the mortgaged rolling stock of a
railroad is in peril of seizure under a judg-
ment, and the railroad, claiming the judgment
to be wrongful, obtains an injunction against
such seizure, one who becomes surety on the
injunction bond, the injunction having been

19. The holders of over-due railroad bonds,
secured by mortgages on the railroad, are not
entitled to the net earnings of the road in the
hands of a receiver, appointed in a suit by a
judgment creditor for the protection of his in-
terests, when they have made no demand
therefor under the provisions of their mort-
gages, even although in his suit such creditor,
by the words of his bill, seeks relief subject
to their rights.-Sage v Memphis & L. R. Co.,
887.

Foreclosure of mortgages-Sale sub-
ject to prior liens.

Profits earned after suit.
having obtained a decree entitling them to
21. The trustees of a railroad mortgage,

dissolved and judgment recovered against that it should not affect any claims to the
him, has an equity to be paid out of the prop-property then pending, and that the court re-
erty of the railroad which is sold to the mort- served the power to make further orders in
gagees at the foreclosure sale, especially when reference to said property. December 9, 1881,
they have purchased expressly subject to in- the court made a final decree, adjudging that
tervening claims that may be declared para- there was due N. the sum of $17,750 and inter-
mount, where the receiver has used earnings est, which ought to have been paid by the re-
to increase the corpus of the estate, and where ceiver out of the proceeds of sale, and that, as
the surety has shown an intention to look to it had not been paid, the sale should be set
the company's property as well as its personal aside, and the receiver resume possession, un-
security by taking a chattel mortgage on cer- less N's claim should be paid within 90 days.
tain locomotives.-Union Trust Co. v. Mor- Held, that the sale of the mortgaged property,
rison, 1004.
as an entirety, must be deemed an election on
the part of the bondholders not to have it sold
in parts, or subject to N's prior lien, and con-
sequently not to restrict his lien to that por-
tion of the road embraced in his purchase un-
der the trust deed; and that, therefore, he
was entitled to be first paid out of the aggre-
gate proceeds of the sale of the entire prop-
erty. Nor could this right be defeated by the
fact that the bondholders had exercised the
privilege given by the decree of sale to make
payment in mortgage bonds instead of cash.
time, the property, or so much as was neces-
If N.'s claim was not paid within a reasonable
sary, should be sold again to pay him. Never-
20. The L Railroad Company partially con- theless the court erred in setting aside the
structed a road from Lexington to Butler, confirmation of sale. The order should have
Mo., and to secure debts for work and mate- been that the property be resold in satisfac-
rials, on January 16, 1872, conveyed the road, tion of N.'s claim, without annulling the for-
franchises, etc., to C. in trust, with power of mer sale and confirmation, or withdrawing or
sale. February 7, 1872, the company leased canceling the master's deed to the purchaser.
its road and property, with the right to mort--Farmers' Loan & Trust Co. v. Newman, 1364.
gage the same, to the B. Company, for and in
behalf of the latter's L. branch. April 1, 1872,
the B. Company placed a deed of trust on its
entire L. branch, including the leased prem-
ises, to secure its bonds for $1,600,000. After-possession of the road, under the provisions
wards the trustee in the last-named deed
brought suit in the United States circuit
court for foreclosure and sale, and obtained a
decree May 19, 1876. Before this decree was
executed, on February 20, 1877, C. sold the
premises covered by the deed of January 16,
1872, to N., who then owned the claims secured
by it. January 10, 1880, S., receiver in the
foreclosure suit, filed a petition for leave to
complete the construction of the leased road, 22. Defendant issued certain bonds, interest
and for that purpose to raise money by sale of payable annually, July 1st, with the provision
first-lien certificates. March 3, 1880, the court that if the net earnings of a portion of the
authorized the receiver to raise the money, road were not sufficient to pay the interest,
and also to settle, by payment or otherwise, then scrip might, at the option of the com-
any outstanding prior claims or liens against pany, be issued for it. The interest due July
that road. March 12, 1880, the receiver made 1, 1882, and July 1, 1883, was not paid, but in
a contract with N. by which N. agreed to con- October, 1883, the directors voted to pay in
vey his interest in the leased road upon pay- scrip. After notification, plaintiff, holding
ment by the receiver of $17,750 within a speci- some bonds, sued for the interest, refusing
fied time, either party having the right to the scrip. Held that, in the absence of an ex-
specifically enforce the contract by proceed-ercise of its option, on the day the interest
ing in the circuit court. November 30, 1880,
the L. branch, including the leased premises,
was sold in gross by a special master in the
foreclosure suit, S., as trustee for the bond-
holders, becoming the purchaser, the price
being paid entirely in mortgage bonds held by
those whom he represented. March 7, 1881,
N. intervened, praying that his agreement
with the receiver be enforced, and that, be-
fore confirmation of the foreclosure sale, the
receiver be required to pay out of the proceeds
the $17,750 and interest. July 5, 1881, the
court confirmed the sale, with the reservation

of the mortgage, are also entitled, there being
no debts for current expenses, to receive all
ment of the suit, the effect of the decree being
profits earned by the road since the commence-
to establish their right of possession at the
time the suit was begun, and to make the com-
pany's possession after that date wrongful.-
Dow v. Memphis & L. R. R. Co., 673.
Action on bonds.

was due, to pay in scrip, plaintiff had an im-
mediate right of action.-Texas & P. Ry. Co.
v. Marlor, 311.*

23. Shortly after July 1, 1882, and July 1,
1883, defendant's treasurer notified the bond-
holders that it could not pay the interest; but
no action was taken as to the scrip. Held,
that plaintiff immediately acquired a right of
action to recover the interest, without any de-
mand on his part.-Id.

24. Defendant did not pay the interest in
1877, 1878, and 1879, but issued scrip in 1880
for it. In July, 1880, and July, 1881, it issued

scrip. Plaintiff sued for interest due in 1882 | in time, under act of congress of March 3, 1875,
and 1883. Held, that the acceptance of scrip
for those years by the bondholders did not
amount to a waiver so as to prejudice plain-
tiff's rights.-Id.

RECEIVERS.

Appointment.

1. Where a judgment creditor of a railroad,
in a suit in behalf of himself alone to have a
receiver appointed to protect his interests,
sets forth the precarious condition of the road,
and the necessity for a receiver, but does not
sue out execution, deeming it useless, and no
objection is made for such failure, the ap-
pointment of a receiver is within the power
of a court of equity.-Sage v. Memphis & L.
R. Co., 887.*

Liability to account.

2. A married woman and her husband con-
veyed her separate real estate to secure notes
held by the bank for the debt of the husband.
By his consent, the receiver of the bank ap-
pointed by the comptroller of the currency
collected the rents and paid them into the
United States treasury, subject to the order
of the comptroller. The wife sought by bill
to compel the receiver to account to her for
the rents received by him. Held, that they
were not to be accounted for in that action.-
Hitz v. Jenks, 143.

Records.

Amendment, see Error, Writ of, 3.
Jurisdictional facts, see Removal of
es, 7.

c. 137, § 3, which requires the petition for re-
moval to be filed before or at the term at
which the cause could be first tried.-Balti-
more & O. R. Co. v. Burns, 421.
Citizenship.

2. In a petition for removal, an allegation
that none of the complainants are citizens of
the same state as defendant is not sufficient
to give the federal court jurisdiction.-Cam-
eron v. Hodges, 1154.

3. Where it appears, on appeal from a Unit-
ed States circuit court, that such court had
no proper jurisdiction of the cause on account
of defective allegations as to the citizenship
of the parties in the petition removing the
cause thereto, the supreme court cannot grant
leave to amend such petition so as to give the
circuit court jurisdiction.-Id.
Remand-Review on appeal.

4. No appeal or writ of error will lie from
an order of a United States circuit court re-
manding a suit which was begun and had
been improperly removed from a state court
after the act of congress of March 3, 1887, c.
373, (24 St. 552,) went into effect, as section 6
of that act expressly repeals section 5 of the
act of 1875, by which such appeals or writs of
error were allowed, and the last paragraph
of section 2 declares that no appeal or writ of
error from such an order shall be allowed.-
Morey v. Lockhart, 65; Wilkinson v. State of
Nebraska, 120; Sherman v. Grinnell, 260.

5. The section prohibiting an appeal or writ
of error in such cases applies, not only to re-
movals on account of prejudice or local influ-
Caus-ence, but to cases removed on other grounds.
-Morey v. Lockhart, 65.

Of deeds, see Husband and Wife, 6; Mort-
gages, 1.

On appeal, see Appeal, 18, 19; Courts, 20, 21.

REFERENCE.

Review by writ of error.

Where a cause has been tried in the circuit
court by a referee, without any waiver in
writing of trial by jury, the supreme court
cannot, upon writ of error, review any of the
exceptions taken to the admission or exclusion
of evidence, nor to the findings of fact by the
referee, nor his refusal to find facts as re-
quested.-Roberts v. Benjamin, 393.

Reformation of Instruments.
See Equity, 10.

REMOVAL OF CAUSES.
Application.

1. A suit was begun in the circuit court of
C. county at the December term, 1884. Dur-
ing that term, on the application of defendant,
the suit was removed to the circuit court of
D. county, and on April 22, 1885, defendant
filed in the latter court a petition for the re-
moval to the federal court. Held that, since
the cause could have been tried at the term in
C. county, the application for removal was not

6. Such an order cannot be reviewed by the
supreme court on a certificate of division of
opinion between the judges, under Rev. St.
U. S. § 693, as it is not a final judgment or de-
cree in the suit.-Id.

Record-Jurisdictional facts.

7. Where a suit was brought in a state
court for the possession of a tract of land, and
for rents and profits alleged to be of the value
of $2,500, and then removed to the federal
circuit court, and there was nothing else to
show jurisdiction in that court but a short
stipulation by the parties that the amount in
defendants will be set aside for want of juris-
controversy exceeded $5,000, a judgment for
diction in the circuit court to render it.-Heg-
ler v. Faulkner, 1203.

REPLEVIN.

Action on bond.

1. A judgment for defendant, and an as-
sessment of damages, for the wrongful tak-
ing, under the Maine statute providing that
in replevin, if it appears that defendant is en-
titled to a return of the goods, he shall have
judgment for their return, with damages for
the taking, does not prevent defendant from
recovering for a depreciation in the value of
the property taken between the taking and
the judgment, in an action against the princi-
pal and sureties on the replevin bond, dam-
ages for such depreciation not having been