977

Notes on U. S. Reports.

135 U. S. 227-230

Distinguished in McGourkey v. Toledo, etc., Ry., 146 U. S. 548, 36 L. 1084, 13 S. Ct. 173, order that certain cars be delivered to intervenor to be sold was not final; Gunn v. Black, 60 Fed. 160, 19 U. S. App. 489, collecting cases, order executing decree after appeal, but reserving final action till report of commissioner is not final.

Appeal. If sufficient color shown for motion to dismiss, court will consider motion to affirm, p. 225.

Equity. Refusal to allow amending and filing of petition as original bill of review is discretionary, p. 226.

Approved in Bondholders, etc., Iron R. R. v. Toledo, etc., Ry., 62 Fed. 169, 18 U. S. App. 479, disallowing an appeal from order granting or refusing rehearing; Cape Fear Towing, etc., Co. v. Pearsall, 90 Fed. 437, 61 U. S. App. 526, opening of default in admiralty is not reviewable.

Equity.- Bill of review for obvious error must be within time allowed for appeal; it is allowable thereafter if decree has been vacated, and vacating order set aside, only if sought promptly, p. 227.

Approved in Lewisburg Bank v. Sheffey, 140 U. S. 451, 35 L. 496, 11 S. Ct. 758, disallowing rehearing after term at which final decree was rendered; Reed v. Stanly, 89 Fed. 433, collecting cases, disallowing bill of review after expiration of term during which certificate of appeal on jurisdiction was necessary.

135 U. S. 227-231, 34 L. 122, ST. GERMAIN v. BRUNSWICK. Patent for application of old process or machine to analogous subject without change in manner or result is invalid, p. 230.

Approved in Fond du Lac County v. May, 137 U. S. 407, 34 L. 718, 11 S. Ct. 102, applied to patent for jail; National Cash Register Co. v. Cash Indicator Co., 156 U. S. 516, 39 L. 516. 15 S. Ct. 439, applied to cash register; Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 151, 17 L. R. A. 618, without application.

135 U. S. 232 236, 34 L. 153, LODGE v. TWELL.

Appeal.- Decree is not final if more than ministerial act remains, e. g., decree followed by order for accounting, p. 235.

Approved in McGourkey v. Toledo, etc., Ry., 146 U. S. 549, 36 L 1085, 13 S. Ct. 174, ordering cars delivered to intervenor to be sold is not final; Latta v. Kilbourn, 150 U. S. 539, 37 L. 1175, 14 S. Ct. 207, where purpose is to obtain account, decree is Interlocutory; Union Mut. L. Ins. Co. v. Kirchoff, 160 U. S. 378, 40 L. 463, 16 S. Ct. 320, remand by appellate court for further proceedings is no final decree; California Nat. Bank v. Stateler, 171 U. S. 449, 19 8. Ct. 7, reference for account upon which further decree is to be VOL. XI-62

entered is not final decree; Guarantee Co. v. Mechanics, etc., Tr Co., 173 U. S. 586, 19 S. Ct. 552, where amount to which plaint is entitled is not determined, decree is not final; Gilbert v. Was ington, etc., Endowment Assn., 173 U. S. 701, 19 S. Ct. 877, d missing appeal; Richmond v. Atwood, 52 Fed. 21, 5 U. S. App. 15 17 L. R. A. 618, collecting cases, decree sustaining patent a awarding injunction and an accounting is interlocutory; Blythe Hinckley, 84 Fed. 238, reference for accounting necessary, decr is not final; Gramm v. Fisher, 3 Wyo. 596, 29 Pac. 377, finding replevin that plaintiff is entitled to goods and damages is n reviewable; American Const. Co. v. Jacksonville Ry., 148 U. S. 37 37 L. 489, 13 S. Ct. 761, arguendo.

135 U. S. 237-239, 34 L. 110, HARTRANFT v. MEYER.

Customs duties.- Cloth of silk cotton and wool held dutiabl as non-enumerated article by act of 1883, p. 239.

Approved in Mason v. Robertson, 139 U. S. 627, 35 L. 294, 11 S Ct. 669, act of 1883, bichromate of soda dutiable as "all chemica compounds; Liebenroth v. Robertson, 144 U. S. 40, 36 L. 337

12 S. Ct. 608, act of 1883, photographic albums dutiable as m facture of paper, not of leather; Arnold v. United States, 147 t S. 497, 37 L. 254, 13 S. Ct. 408, act of 1890, knit woolen underwear dutiable as woolen wearing apparel; " Seeberger v. Schlesinger 152 U. S. 588, 38 L. 563, 14 S. Ct. 732, act of 1883, shell opera glasses dutiable as manufactures composed in part of metal; In re Chase, 48 Fed. 631, act of 1890, common goat skin is free as hair, not dutiable as combing wool; In re Mills, 40 Fed. 727, act of 1883, elastic cords of silk and rubber dutiable as in cited case; United States v. Weiller, 65 Fed. 419, 26 U. S. App. 505, act of 1890, lithc graphic prints dutiable as articles produced by lithographic process· Wolff v. United States, 71 Fed. 292, 293, 35 U. S. App. 832, act of 1890, soutache gilt braid is dutiable as manufacture composed in part of metal; Slazenger v. United States, 91 Fed. 517, tennis balls dutiable as articles of rubber; Robertson v. Edelhoff, 91 Fed. 643. 63 U. S. App. 71, hat trimmings are dutiable as such and not as manufactures of silk.

Distinguished in Bister v. United States, 59 Fed. 453, 20 U. S. App. 222, affirming 54 Fed. 159, gloria, composed of silk and worsted, is not dutiable as in cited case, but as women's dress goods of worsted.

135 U. S. 240-244, 34 L. 120, ECKLOFF ▼. DISTRICT OF COLUMBIA.

Officers.- Power to remove carries right to remove in any time or manner and without notice, p. 241.

Approved in Townsend v. Kurtz, 83 Md. 350, 34 Atl. 1126, applied to office for fixed term, "unless holder is sooner removed;" Gillan

ANN

979

Notes on U. S. Reports.

135 U. S. 244 262

v. Normal Schools, 88 Wis. 14, 58 N. W. 1045, 24 L. R. A. 338, power of board to remove "at pleasure" is not reviewable by court.

District of Columbia.- By act of 1878, commissioners may summarily remove members of police, p. 244.

Approved in District of Columbia v. Hutton, 143 U. S. 24, 25, 36 L. 61, 12 S. Ct. 371, holding § 354, R. S. D. C., thereby repealed; State v. Smith, 35 Neb. 29, 52 N. W. 705, 16 L. R. A. 796, holding, in absence of fixed term, removal is discretionary without notice. Distinguished in Gowen v. Harley, 56 Fed. 977, 12 U. S. App. 574, special act or charter is not affected by general legislation on same subject.

135 U. S. 244-254, 34 L. 124, BEATTY v. BENTON.

Courts. If State decision supportable on non-Federal ground, Supreme Court has no jurisdiction, p. 254.

Approved in O'Neil v. Vermont, 144 U. S. 336, 36 L. 457, 12 8. Ct. 698, collecting cases, and California v. Holladay, 159 U. S. 417, 40 L. 203, 16 S. Ct. 53, both dismissing writ of error.

135 U. S. 255-262, 34 L. 117, UNITED STATES v. CHASE. Post-office. Knowingly sending obscene letter with only address on envelope is not indictable by act of 1876, p. 260.

Approved in United States v. Clark, 43 Fed. 575, mailing of indecent letter, not lewd or lascivious, is no offense under § 3893, R. 8.; United States v. Wilson, 58 Fed. 770, and United States v. Warner, 59 Fed. 356, both holding mailing of an obscene private letter is not prohibited by amendment of 1888; In re Palliser. 136 U. S. 267. 34 L. 518, 10 S. Ct. 1037, arguendo. See 58 Am. St. Rep. 597, note. Distinguished in Andrews v. United States, 162 U. S. 424, 40 L. 1025, 16 S. Ct. 799, United States v. Martin, 50 Fed. 919, United States v. Andrews, 58 Fed. 862, United States v. Nathan, 61 Fed. 938, and United States v. Ling, 61 Fed. 1002, all holding a private, sealed, obscene letter is unmailable by amendment of 1888 to 3893, R. S.

Statute containing particular enactment and general one including it, latter does not affect former, p. 260.

Approved in Pacific Rolling-Mill Co. v. Hamilton, 61 Fed. 478, applied to mechanic's lien law.

Statute, If doubtful, is construed with view to evil to be cured, but not if case is clearly excluded from language, p. 261.

Approved in United States v. Wilson, 58 Fed. 771, mailing of sealed obscene letter not prohibited by amendment of 1888; dissenting opinion in State v. Hunkins, 90 Wis. 271, 63 N. W. 168, majority affirming conviction for fraudulent conveyance.

Courts. Question, does indictment charge any offense, is too general for certificate of division, p. 262.

135 U. S. 263-271, 34 L. 107,

Criminal law. Federal sente
executed in State prison, prescr

Approved in In re Claasen, 140
holding crime so punishable is an
well, 53 Kan. 35, 35 Pac. 823, 27 L
violation of ordinance may be req
▼. Wentworth, 84 Me. 32, 24 Atl. 458
of crime depends on punishment; I
18 S. W. 76 (see dissenting opinion in
80), punishments for misdemeanor n
house; United States v. Pridgeon, 153
750, arguendo.

Court for Indian Territory is a Fe
Circuit, Court, p. 268.

Approved in Brown v. United States,
disallowing appeals therefrom to United
capital cases; Stephens v. Cherokee Nati
Ct. 734, act of 1896, allowing appeals to
United States Court for Indian Territor
Courts of Indian Territory, unauthor
labor, may not act where such is possibly

Approved in In re Mayfield, 141 U. S. 940, member of Cherokees committing ad in court of the Nation; Stokes v. United Sta App. 289, test of whether crime is infamou award an infamous punishment.

Criminal sentence for six months and of
may not be to penitentiary; only permiss
than one year, p. 270.

Approved in In re Bonner, 151 U. S. 255, 3
discharging Federal prisoner sent to State per
of one year and a fine; In re Johnson, 46
Christian, 82 Fed. 201, 202, both releasing pr
prisonment where statute provides for hard
United States, 50 Fed. 922, and Woodruff v
Fed. 768, both holding criminal judgments not
to statute are void; In re Bonner, 57 Fed. 184
tory Court cannot sentence to State penitentiar
re Pridgeon, 57 Fed. 201, act of 1888, prohibit
does not warrant imprisonment at hard labor;
States, 75 Fed. 902, 43 U. S. App. 678, 34 L. R. A.

ANN

of 1887; Westinghouse Air-Brake Co. v. Great Northern L. 261. 59 U. S. App. 598, allowing service on secretary. nt affidavit as to non-residence held sufficient, p. 308. Two years' delay in suit to set aside judgment is fatal 9.

in Boone Co. v. Burlington, etc., R. R., 139 U. S. 693, S. Ct. 690, collecting cases, holding laches bars suit decree; Galliher v. Cadwell, 145 U. S. 373, 36 L. 740, laches grows out of inequity rather than mere lapse ardson v. Walton, 49 Fed. 896, three years' delay to nent is fatal; Lemoine v. Dunklin County, 51 Fed. App. 227, collecting cases, delay of twenty-two years on of trust bars suit; Jones v. Perkins, 76 Fed. 84, shown defendant was injured by delay.

liquidating in France, where organized, is not ret and execution thereon in Texas, p. 309.

Cone v. Tuscaloosa Mfg. Co., 76 Fed. 891, general reditors before suit, service is not set aside.

4, 34 L. 210, WILLARD v. WOOD.

v, in New York, sue mortgagor's grantee assuming or equity, p. 312.

ard v. De Oca, 120 Cal. 105, 52 Pac. 131, disal* deficiency against grantee under facts herein. edy against mortgagor's grantee assuming debt fori, p. 313.

on L. Ins. Co. v. Hanford, 143 U. S. 190, 36 L. in Illinois grantee assuming payment may be able v. National Steamship Co., 154 U. S. 73, 1071 (see dissenting opinion in S. C., 154 U. S. Ct. 1081), it is not universal rule that party made for his benefit; Episcopal City Mission 227, 39 L. 961, 15 S. Ct. 835, assignee takes of set-off; Willard v. Wood, 164 U. S. 519, 41 rantee assuming mortgage is subject to limita simple contract; Thomas v. American, etc., 554, 555, 12 L. R. A. 686, and n., summary statute to have judgment on note declared d in Federal court; North Alabama Develop5 Fed. 20, 13 U. S. App. 215, jurisdiction of e enlarged or modified by stipulation; Green and Green v. Turner, 86 Fed. 838, 59 U. S. ng suit in equity against grantee of morttrick, 94 Fed. 472, plea of statute of limitafori; dissenting opinion in McKay v. Ward, 4, collecting cases, majority holding grantee