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THE lu^^'^



Washington Law Reporter.



-A^ ATV'EEKLY JOURNAL



DEVOTED TO REPORTS OF



DECISIONS OF THE CODRTS AND DEPARTMENTS

AX THE NATIONAL CAPITAL.



A. H. JACKSON, KDITOR.



VOL. VIII.



I^-ROIvX JANUARY, 1880, TO JANUARY. 1881.






WASHINGTON : V , ^'

JOHN L. GINCK, PRINTER, ; vVT'-'^

1881.



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T^A^BLE OF O^SES



Babbit, assigaee, v. Shield et al.; U S S C. 294
Baker v. Seldeo ; U S S C. 98
Baldwin v. The United States ; C. of Claims. 296
BraiDard v. El wood; S. C. Iowa. 58.
Brooklyn City, &c., v. The Nat. Bank, «fec.; U S S
C. 648

California, People of, v. Freshour ; S. C. Cal. 667
Cafifomia, People of, v. Pearson ; S. C. Cal. 473
Collins V. The United States ;'C. of Claims. 19
Commonwealth v. Johnson ; C. Ap. Ky. 442

V. Haskins et al ; S. C. Mass. 103
of Va. Ex parte ; U S S C. 198
Connecticut, State of, v. Hoyt; S. C. Conn. 140
Cooper V. The Diet, of Columbia ; S C D C. 405
Cowell V. The Colorado Spring Co.; U S S C 70
Cox V. Bdlyer ; S. C. Ga. 684.
Ciuomings v. 'Vhe Merchants Nat. Bank of Toledo;
U S S C. 437

Daabert et al. v. Eckert ; S. C. Pa. 646

Dauphin v. Key; S C D C. 131

Douglass V. PLke County; U S S C. 680 ,

Earley v. Bolf e ; S. C. Penna. 810

Eldridge v. Wright ; S. C. Cal. 630

Embry v. The United States ; U S S C 340

Ex parte French ; U S S C. 17
Reed ; U S S C. 626.
Commonwealth of Va.; U S S C. 198
Siebold et al.; U S S C. 162.

Hrst National Bank of Quincy v. Hall et al.; U

SSC. 610
Fisher y. The United States ; C. of Claims. 341
France et al. v. The State of Mo et al.; U S S

C. 690
French Ex parte ; U S S C. 17

Gates et al. v. Goodloe, ex.; U S S C. 227
Graham et al. v. The La Crosse, &c., R. R. Co. et

al.; U S S C. 819
Greencastle, Nat. Bank of, v. The United States ;

C. of Claims. 242
Grogan v. Tlie Town of Hayward ; D. C. Cal. 693
Gun ton et al. v. Carroll et al; U S S C. 242
Guy V. The Mayor and Council of Baltimore ; U

SSC. 532
Hamilton v. Glover et al ; S C D C. 193
Herndon t. The United States ; C. of Claims. 390



Holden v. The F. S. & Trust Co. et al.; U S S

C. 6
Hough V. The Texas & Pacific R. R. Co.; U S S

C. 498
Howard v. Carusi et al.; S C D C. 644

Imhaeuser v. Buerk ; U S S^C. 562
Ivauhoe Mining Co. v. The K. C M. Co.; U S S
C. 760

Jackson et al. v. Davis et al.; S C D C. 357

Keese Ex parte ; Special Term. 196
Kennedy, ex., v. Creswell et al.; U S S C. 376
Kentucky, Commonwealth of, v. Johnson ; C.
Ap. Ky. 442

Lausdale v. Daniels'; U S S C. 116

Lant's Appeal ; S. C. Penn. 671

Lorillard v. Standard Oil Co.; S. D. C. N. Y. 633

Lovell et al. v. Davis ; U S S C. 482

Manwaring v. The Bark Carrie Delap, &c.; S. D.

ofN.Y. 186
Marquez v. Frisbie et al.; U S S C. 85
Mason Lumber Co. v. Buchtel ; U S S C. 409
Mathews v. The State of Texas ; C. Ap. Texas. 649
Michigan, People of, v. Knapp; S. C Mich. 102
Minnesota, The St4ite of, v. Wiles ; S. C. Min. 314
Moulor v. The Am. Life Ins. Co.; U S S C. 389

Nat. Savings Bank of Washington v. Ward;-U S

SC. 61
Nat. Bank of Greencastle v. The United States ;

C. of Claims. 242
Nat. Met. Bank et al. v. Bigelow ; S C D C. 145
Nevada, State of, v. Pritchard ; S. C. Nev. 632
New Hampshire, State of, v. Buzzell ; S. C. N.

H. 299
New Orleans, «&c., R. R. Co. v. The State of Mo.;

USSC. 771
New York, People of the State of, v. Weaver et

al.; U S S C. 148
North Carolina, State of, v. Perry; S C D C. 707

Oliver v. Cameron ; S C D C. 307

Parish et al. v. 'I'he United States ; USSC. 279

Patterson v. The Syracuse Nat. Bank; C. Ap.

N.Y. 392
Penn v. Phelan; S. C. Iowa. 7
Pennsylvania Co. v. Roy; USSC. 789



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IV



TABLE OF CASES.



Pearce v. Mulford et al.; l> S S C. 741

Peltoii V. Tlio Commercial Nat. Bank ; IJ S S

C. 151
People of California v. Freshour; S. C. Cji ' 507
People of California v. Pearson; S. C. Ca, * 473
People of Michigan v. Knapp; S. C. Mich. 102
People of the State of New York v. Weaver et al.;

U S S C. 148
Phelps et al. v. Shrader et al.; U S S C. 590
Phillip's Ad. V. Ordway; U S S C. 453
Potomac Steamboat Co. et al. v. The U. S. Co.;

SCDC. 419
Potomac, <fcc., v. The Inland & S. C Co.; aC D

C. 419

Quincy, First Nat. Bank of, v. Hall et al.; U S S
C. 010

Reed Ex parte ; U S S C. 020,
Ruth V. Evert ; S (J D C. 339

Siebold Ex parte et al.; U S S C. 102

Sims V. Everhardt et al.; U S S C. 710

Soule V. The United States ; U S S C. 30

State V. Buzzel ; S. C N. H.; 299

State V. Iloyt ; S. C. Conn. 140

State of North Carolina v. Periy;'S C D C. 707

State of Tennessee v. Davis ; U S S C. 179

State, The, v. Wiles ; S C. Minn. 314

State, Tho, ex rel., v. Gaillard ; U S S C. 510

State v. Pritchard; S. C. Na. 032

Shaw et al. v. Tlie Little Rock, &c., R. R. Co- et

al.; U S S C. 259
Stewart et al. v. Piatt, assignee, &c.; U S S C. 2
Stockbridgo Ex parte ; S C l> C. 145
Stone et al. v. The State of Miss., &c.; U S S C . 358
Sti-auder v. The State of Va.; U S S C. 211
Strong v- Cruikshank; S C D C. 115

Thomas et al , v. The West J. R. R. Co.; U S S

<\ 400
Turpin v. Booth et al.; S. C. Cal. 743
Twombly v. Randall et al.; SCDC. 453

United Consolidated Sil. M. Co. v. Taylor; U S S

C. 37
United States ex rel. v. Sehurz ; U S S C. 803
United States v. Perkins ; S C: D O. 209
United States, use of Wilson, v. Ameset al.; S C

D C. 325
United States, use of Schell, v. Zeller et al ; S C

DC. 177

Walker v. Walker; C. Ap. N. Y. 074

Western Union Tel. Co. v. The Union R. R. Co.

et al.; D. C. Kan. 000
Wilson *s Ad. v. Arrich ; S C D C. 291
Wong Yung Quy In re ; D. C. Cal. 41 1



Wood V. The United States ; C. of Claims. 231
Wright V. The United States ; C. of Claims. 89

Young v. Bradley et al.; U S S C 328

LAND DEPARTMENT CASES.

Chavenne, <&c., application of, 035
Clark V. Carter, 779

Dersch v. The Cal. & Oregon R. R. Co., 143
Dyer et al. v. Jackson et al., 43

Esry V. Glenn, 795

Gower v. The S. Pacific G. R. R. Co , 589

Hariyim v. Linton, 27
Huls V. Yielding, 710

Jayne v. Gowdy, 715

McGregor & Western R. R. Grant, 100
McLeron v. The State of Nevada, 413*
Mol5'^neux v. Young, 524

Ogg V. McDonald, 125

O'Leary v. Zollars, 315

Orton V. The Southern Pac. R. R. Co., 92

Powers V. Forbes, 826
Preston Beck Claim, 604

Scogins V. Culver et al., 10
Scrip V. Rogers et al., 475
Selby Cases, one of the, 731

Watson V. State, 74

Wheeler v. The St. Joseph, Ac, R. R. Co., 188

Whitaker, assignee of, v. R. R. Co., 489

Zuck V. Brenson et al., 44

PATENT OFFICE CASES.

Booth V. Lyman et al., 511
Brown v. La Dow, 730
Coleman, Ex parte, 714
Ex parte Farnum & Co., 555

Heyman, 474

Oliver, 474
Fulgram v. Westcott. 585
Stevens v. Putnam, 067
Stratton v. Strong, In re, 539

TREASURY DEPARTMENT CASES.

Herndon's Claim, 032, 034
Keasbey's Case, 778
Stephani's Case, 019
Wood V. The United States, 521



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Vol. VIIl






MasIuiii)t0n 3im ^tpritr



WASUiXQToN



Jaiiiary 5, 1880



GEOliGE B. CORKHILL, Editor.

Tub Law EEPOBTSBhas Telephonic connection
frith all portions of the city, by which parties can
•end any information or directions about advertise-
ments.



ConneneemeBt of New Volue.

With this number of the WiiSHmoTON Law
Bepobteb commences the Eighth Volume.

The general commendation wliich the Bepobtbb
has receiyed from the Profession and the public,
and the encouraging increase in its circulation,
both at liome and abroad, is the most satisfactory
evidence to the Publishers of its assured success.

During the past year nearly one thousand now
subscribers have been secured, and there is no
question that the Bepobteb has now as large a
general cux^ulation as any Law Periodical in the
United Stetes.

It is the intention of the Publishers to continue
to merit the generous support extended to them ;
and, to thi^ end, such improvements will be made
during the coming year, as will make the Bepob-
teb more valuable to the Legal Profession and to
Uke general public.

Owing to the large increase in the subscription
list, the Publishers are enabled to reduce the price
of the Bepobteb, for the coming volume, to ^
per annum, if paid strictly in advance.



Coi*. 0OBKH£Li«, editor of the Blpobteb, was
very suddenly called to Iowa, this morning, in con-
sequence of the death of one, and dangerous ill-
ness of the other, of liis two little girls, who had
been spendhig some months with theh: relatives at
Mt. Pleasant, Iowa. It has been but a short while
since the Colonel was called to the same place, to
attend the funeral of his mother. He has the sym-
pathy of the entire conununity in this, his hour of
sad affliction.



AsiignmeBt of Jostiees ot the District Sapreme
Court.

Tlie assignment of Justices for the Supreme
Court of tills District, for the ensuing year, was
announced on Friday last, by the Court in Oene-
nl Term, as f oUovtb :



Equity Court, January and February terms. Jus-
tice James : March, April and May terms. Justice
Hagner ; and from June to December, Justice Cox.

Circuit Court No. 1, January and October terms,
Justice Mac Arthur ; May term. Justice Wylie.

Circuit Court No. 2, January term, Justice Cox;
May and October terms, Justice Hagner.

Criminal Court, Mareh, June and December
terms, #ustice James.

The Probate Court Is to be presided over by the
Justice holding the Equity Court, as now. Chief
Justice Cartter will preside in General Term, where
the Associate Justice not engaged for the time
being will also sit, each being unoccupied at some
time. Justice Wylie will, it is thought, take
charge of the District Court, though no assignment
has been made for it.

The new General Term Calendar, which contains
127 cases, will have the Justice's name before whom
the first hearinii: was had, at each ease. This will
enable assignments to be made easily of cases
which can be tried by any two.

The January term of the Court in Banc begins
today, that of the Circuit Court on 26th inst., and
the Equity Court on the 6th.



Jorors for the Gireaic Geort.

The following Jurors were drawn for the Clrcait
Courts, Nos. 1 and 2, on Friday last, the fiist to be
held by Judge Mac Arthur and the latter by Judge
Cox, to be convened on Monday, 19th instant.

Division No. 1. — J. J. Fisher, Georgetown; W.
M. Shuster, Pa. ave.: Chas. Bium, 7tli St.; S. Nor-
ment, M st. ii. w.; M. 8. Lowery, Georgetown; P.

F. Horning, county ; T. F. Cogan, 20th st. n. w.;
Julius Ullie, Pa. ave.; Jas. A. Sliaw, 13tli st.; G.
VV. Colman, G st. 8. e.; R. O. Uoltzinan, 10th st.
n. w.; John E. Cos, Georgetown; John M. Beit,
Washington St.; R, G. Campbell, D st. s. w.; F. J.
Tibbetts, 14th st. n. w.; J. R. Major, 7th st. n. w.;

G. K. Ashley, 12th st. n. w.; John S. Paxton, W.
W. Curtis, Georgetown ; J. A. K. Moore, 9th st. n,
w.; D. M. Davis, 19th st. n. w.; C. S. English,
Georgetown ; W. H. Baum, 7th st. o. w.; W. P.
Parke, 9th st. n. w.; C. F. Moseby, J. D. Cathell,
(Georgetown.

Division No. 2. - S. Stover, 12th st. n. w.; S. H.
Wimsatt, 7th st. s. w.; H. R. Searle, E st. w.; Jas.
Edwards, G st s. e.; J. H. Magruder, New York
ave. n. w.; A. H. Markiand, Hamilton House; Thos.
Jarvis, 9th st. n. w.; G. B. Harrjson, 12tli st. s. e.;
D. Kolb, 7tli and E sts. n. w.; M. H. Robinson,
East Capitol st.; Geo. W. Snltz, New York ave.;
Pierce Klingle, couuty; Geo. A. Birch, Georgetown;
Eugene Lucas, F st. n. w.; Jos. G. Waters, George-
town ; F. King, Georgetown ; Jos. Fearson, George-
town ; J. R. Uarrover, 14th st. n. w.; George B.
McCartee, 14th st. n. w.

This exhausted the box—leaving 7 vacancies to
be filled — ^and this Is the first time it has occurred
since the law requiring Jurors to be drawn has been
In force.



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'Bmitfi ^laka ^uyremc (![ourt.



COBNEUA M. Stewart, Ae.^

V.

John H. Platt, assiqneb in BANKRUPTcrjr, Ac.

Appeal from the Circuit Court of the United States for

the Southern District of New York,

1, Tbe New York slatnte in relation to chattel roortsa^s
construed. Held: That a chattel mortgage by a firm
npon Arm property it void a« against creditors* subsequent
purcha«er8, and mortgagees in good faith, unless filed in
the towns or cities where the individual members of the
flna respectively reside. It is not sufficient to file in the
town or city where the partners conduct the firm bus-
iness.

2. But such mortgages are good as between the parties with-
out being filed.

8. A bankrupt caused a conveyance of real estate to be
made to his wife several y»^rs before the commencement
of proceedings in bankruptcy. It was a gift from liim at
a lime when lie had the right to make it. Within the four
months preceding the bankruptcy, the wife and husband
conveyed to a creditor of the latter, and the consideration
was credited on the debt held by thA grantee against the
husband. Held, TJiat the assignee in tMinruptoy could
' not complain of such transaction, and. the property was
not subject to the general debts of the bankrupt.

4. Within four months preceding bankruptcy, the lessor of
a hotel, holding as security for rent, sundry chattel mort^
gages, from the bankrupts, upon the personal property in
the hotel, which mortgages were good an between the
parties, although void under the statute against creditors,
accepted real estate at a fair valuation, in payment of a
part of the back rent, and thereby extinguished bis lien
upon the mortgaged pro|>erty. Dy the terms of the mort-
gage, the lessor, at the time, cojld have taken the mort-
gnged property into his custody and sold it for rent. Held,
That, as the arrangement was made in good faith, with-
out any intention to defraud or to give preference to the
lessor, the transaction should be regarded as, in substance
and effect, an exchange of securities.

Mr. Justice Hablan delivered the opinion of the
court:

Tliis l8 an appeal from a decree of the Circuit
Court of the United States for tlie Southern District
of New York, In a suit instituted by tlie assignee
In banlcruptc)* of Simeon Leland, Warren Leiand,
and Charles Leland, late partners under the name
of Simeon Leland & Co. The latter were adjtid^d
bankrupts upon the petition of one of their creditors
filed ou 24ih March, 187L

The objects of the suit, so far as they concern the
appellants, were —

Ist. To obtain the distribution of a fund arising
from the sale of furniture and other personal prop-
erty in use in the Metropolitan Hotel In the city
of New Totk, at the commencement of the pro-
ceedings in bankruptcy. TiieLclands were lessees
of tliat hotel under a written lease from A. T. Stew-
art, dated April 30tli, 1807. for a term of four years
thereafter, at an annual rent of $79,186, payable in
equal monthly Instalments. Upon the property



thus sold Stewart held, as security for rent reserved
by the lease, several chattel mortgages executed by
the Lelands, the Talidity of whicli was questioned,
in this suit, by the assignee In bankruptcy ;

2d. To have a decree declaring sundry Judg-
ments against the bankrupts within four months
prior to the adjudication In bankruptcy, as well as
certain conveyances of real estate to Stewart, to
be invalid under the provisions of the bankrupt law,
and as against the assignee.

Tlie first question to which we will direct our
attention relates to those several chattel mortgages.

The district and circuit courts concurred in
opinion that they were not died in tlie office de-
signated by the statutes of New York, and, upon
that ground, were ineffectual to give the security
and lien contemplated by the parties, and void as
against the assignee.

By tlie laws of New York It is provided that every
mortgage or conveyance, intended to operate as a
mortgage of goods and chattels, which slioold not
be accompanied by an immediate delivery, and
followed by an actual and continued cliange of pos-
session of the things mortgaged, should be abso-
lutely void, as against the creditors of the mortgagor,
and as against subsequent purchasers and mort-
gagees in good faith, unless the mortgage, or a true
copy thereof, shall be filed as directed in the act.
The statute requires such mortgas(e8 to be filed in
the town or city where the mortgagor, '^ if a resi-
dent of that State, shall reside at the time of the
execution thereof; and if not a resident, then In the
city or town where the property so mortgaged shall
be at the time of the execution of such instrument.*'
In the. city of New York, the mortgage is directed
to bt^ filed in the office of tlie register of said city ;
in other cities of tlie State, and In the several towns
thereof in which a county clerk's office i^ kept, in
such office ; and. In each of the other towns of the
State, in the office of the town clerk thereof. Reg-
isters and chrkaare required to file such instru-
ments, presented to them for that purpose, and
endorse thereon the time of receiving same, and
keep them deposited In their offices, for the in-
spection of the persons interested.

It is furtlier provided that every mortgage filed
in pursuance of the statute shonld cease to t>e valid
against the creditors of the mortgagor, or against
subsequent purchasers or mortgagees In good faith,
after the expiration of one year from the filing there-
of, unless within thirty days next preceding the
expiration of each and every term of one year after
the filing of the mortgage, a trae copy thereof,
together with a statement exhibiting tiie interest
of the mortgagee in the property thereby claimed
by him In virtue thereof, shall be again filed in the
office of the clerk or register aforesaid, of the town
I or city where the mortgagor shall then reside*



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WASmNQTON LAW REPORTER.



8



The bankrupts resided with their families In the
ecHiDty of Westchester at the respective dates of the
several chattel mort^a^i^, but the business of the
flrm of Simeon Leland & Co., as lessees of the Met-
ropoliun Hotel, was carried on in the city of New
York, and all the property covered by the mortji;a^8
was in nse In that hotel. The mortfiiages were filed
ID the office of the refz^ster of deeds for the city
and connty of New York, and were not filed in
the towns where the lessees, respectively, resided
with their families. The contention of learned
counsel for the appellants is that ihe firm was the
mort^a^or, that its residence or domicile was In the
city of New York, and that the manifest object of
the statute was met by filing the several mortga^^s
in the city where the firm carried on its business.
The question thus presented is within a very narrow
compass, and is not free from difficulty. Its so-
lution depends upon the meaning of the word **re-
side^* employed In the statute. It is to be regretted
ttiat we are not guided by some direct controlling
adjodteation in the courts of New York construing
the statnte under examination. But no such de-
cUk>n has been brought to our attention. With
some hesitation we liave reached the conclusion
that a chattel mortgage, executed by a firm upon
firm property. Is void, under the New York statute,
as against creditors, subsequent purchasers, and
mortgagees In good faith, unless filed in the city
or town where the individual members of the firm
severally reside. The statute, upon its face, fur«
Dishes persaaslve evidence that its framers intended
to makeasharp distinction between the place where
the property might be at the time of the execution
of the mortgage, and the place of the mortgagor's
residence. If he be a non-resident of the State of
New York, the mortgage may be filed in the town
or dty where the property shall be at the time of
the execution of the mortgage. If he be a resident,
then his residence, not the actual siiuu of the prop-
erty, governs. If these Instructions be executed by
several resident mortgagees, the statute would seem
to require that the mortgage be filed in the towns
or cities where the mortgagors, at tlie time, respeo-
Uvely reside.

Some stress is laid upon the fact that, In each of
the mortgages, the mortgagors are described as *'ot
tbe city of New York.*' If that Is to be regarded
as a representation by them that their fixed abode
was In that city, It is obvious that tbe statute de-
signed for the protection of creditors, subsequent
pnrcbasers and mortgai^es In good faith cannot be
thus defeated. Their righU depend not apon re-
citals or representations of the mortgagors as to
their residence, but upon the fact of such residence.
The actual residence controls the place of filing,
otherwise the object of tbe statute would be frus-
trated by tbe more act of the parties to the injury



of those whose rights were intended to be pro-
tected. The recital of the residence In the mort-
gage '^ seems to be of no Importance, and might
for the matter of security be omitted altogether.*'
Nelson, 0. J., In Chandler v. Bunn, Hill & Denlo,
Sup. 168.

A good deal was said in oral argument as to the
serious inconveniences which may result from any
construction of the statute that requires chattel
mortgages, executed by a firm, upon its property,
to be filed elsewhere than In the town or city where
the property is used, and where the firm business
is conducted. On the other hand, it is quite easy
to suggest reasons, of a cogent character, why. In