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(115 U, S. 122) COMMISSIONERS OF BUNCOMBE Co. and others o. TOMMEY and others, Trus.

tees, etc.

(May 4, 1885.) LIENS ON RAILROAD-CONSTRUCTION OF ACT OF LEGISLATURE OF NORTH CAROLINA OF 1870.

It was not purposed by the act of 1870 of the legislature of North Carolina to give a lien upon the property of a railroad corporation for work performed or materials provided in and about the construction of its road or of its bridges constituting a

portion of its line. Appeal from the Circuit Court of the United States for the Western District of North Carolina. On a petition for rehearing. See S. C., ante, 626.

HARLAN, J. In the opinion in this case it was stated that in North Carolina, as in most, if not in all, the states, railroads, although constructed by private persons or corporations for their own emolument, are highways, established under the authority of law, primarily for the benefit of the public. For that reason, in the absence of an express statutory declaration to the con. trary, we were not willing to presume that the legislature of that state in. tended to subject railroads within her limits, and established by her authority, to the operation of ordinary lien laws; for such a construction of her statutes would enable creditors to enforce their liens upon distinct portions of a railroad, and thereby easily destroy a highway and defeat the important public objects intended to be subserved by its construction. The petition for rehearing suggests that the court is in error as to the policy of the state with reference to the*seizure of railroad property by execution or other process, and we are referred, upon this point, to state v. Rives, 5 Ired. Law, 297, and Gooch v. McGee, 83 N. C. 59, authorities not heretofore cited by counsel.

In the first of these cases it was decided that, under the law of North Carolina as it then was, the writ of fieri facias lay against the land on which a railroad is laid out. In support of that view reference was made to an act passed in 1820. But, from the decision in Gooch v. McGee, determined in 1880, it is apparent that the court was not satisfied with the correctness of that decision; for it said that, "so far as the opinion, except by force of the statute, extends the liability to the estates of corporations for public purposes, indispensable to the exercise of the conferred franchise and to the performance of correlative duties, it is not in harmony with adjudications elsewhere of the highest authority, and we are not disposed to enlarge the sphere of its authority.” After citing several adjudged cases, including Gue v. Tide-water Canal Co. 24 How. 257, the court proceeds: "In our researches we have met with a single case (Arthur v. Bank, 9 Smedes & M. 394) recognizing the authority and approving the decision in State v. Rives, and in opposition to the current of judicial opinion. The general words of the statute, which to some extent influenced that decision, may, without violence to their meaning, admit of a narrower scope, and be restricted to the property of private corpo rations, and to that of public corporations which may be replaced, and is not indispensable to the exercise of their necessary functions, and the discharge of public duties, upon the distinction taken in the cases cited." It is difficult to resist the conclusion that the supreme court of North Carolina intended, by their opinion in Gooch v. McGee, to intimate that State v. Rives was wrongly decided, even with reference to the statutes in force when (1844) the latter case was determined.

It is suggested that section 9, c. 26, of the Revised Code of North Carolina, adopted in 1855, indicated a public policy in that state in harmony with the decision in State v. Rives; for it is claimed by that section the franchises and property of railroad corporations having the right to receive fare or tolls may be taken on execution. Upon this point it is sufficient to say that we are not satisfied that the statutory provision referred to, as being a part of the Code of 1855, was in force after Battle's Revisal was adopted. By express

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enactment, "all acts and parts of acts passed before" the session of the legis. lature which directed the publication of Battle's Revisal, “the subjects whereof are digested and compiled” in that revisal, or which were “repugnant to the provisions thereof,” were declared to be repealed and of no force or effect from and after the first of January next thereafter, with certain exceptions and limitations, not embracing the present case. Battle's Revisal, 861. Independent, however, of this question, and even if section 9, c. 26, of the Code of 1855, be in force, we adhere to the opinion that there was no purpose, by the act of 1870, to give a lien upon the property of a railroad corporation for work performed or materials furnished in and about the construction of its road, or of its bridges constituting a part of its line.

In the original opinion we were in error in supposing that the act of 1873 was passed at a session previous to that at which the act was passed approving Battle's Revisal, and directing its publication under the supervision of the compiler. Both acts, it seems, were passed at the same session. The incorporation of the act of 1873 into that part of the Revisal which related to private corporations was, therefore, the work of Mr. Battle and not in pursuance of any previous express direction by the legislature. Making this correction in the statement of a fact to which we attached but little weight in our interpretation of the act of 1873, we perceive no sufficient ground for extending its provisions to the property of corporations operating a public highway.

The rehearing is denied.

(116 U. 8. 137)

MAYFIELD 0. RICHARDS and others.

(May 4, 1885.) LIMITATIONS IN SECEDED STATES-ACT OF JUNE 11, 1864.

Act of congress of June 11, 1864, entitled “ Án act in relation to the limitations of actions in certain cases (13 St. 123) applies to cases in the courts of the states, as well as in federal courts, and as thus construed the act is constitutional. In Error to the Supreme Court of the State of Louisiana. The facts shown by the record were as follows:

On March 30, 1860, Walter O. Winn, of the parish of Rapides, in the state of Louisiana, made and delivered to the firm of Rotchford, Brown & Co., of the city of New Orleans, his nine promissory notes, each for the payment to their order of $5,000, four of which were to become due and payable on November 10, 1860, and five on December 10, 1860. Winn died in 1861, leaving a last will, which was afterwards duly proven, by which he made his wife, Mary E. Winn, his universal heir and legatee and executrix. As such she took possession of the estate. The nine notes payable to the order of Rotchford, Brown & Co. were presented to Mrs. Winn, as executrix, for her acknowledgment thereof as a debt against the succession of Winn, and she indorsed on each of them such acknowledgment, with a promise to pay the saine in due course of administration. These indorsements all bore date November 1, 1865. Mrs. Winn continued in the office of executrix until September 30, 1873, when, by the order of the district court for the parish of Rapides, she was “destituted”—that is to say, removed—“from said executorship of the estate of Winn," and J. M. Wells, Jr., appointed dative testa-, mentary executor of said succession.

*On July 5, 1880, Wells, as such executor, filed a provisional account of his administration in the district court for the parish of Rapides, which had probate jurisdiction. In his account he recognized the nine notes above mentioned, payable to the order of Rotchford, Brown & Co., which, in January, 1866, had been transferred by the payees to the appellant, John S. Mayfield, as valid claims against the succession, and proposed to apply the assets in his hands to their payment. Mrs. Winn, under the name of Mary E. Richards,

*

681.

-she having intermarried with A. Keene Richards,-filed, with the authorization of her said husband, on January 11, 1881, her opposition to the allowance and payment of the notes, and stated her ground of opposition as fol. lows: “The notes are prescribed, and were prescribed at the date they were accepted by the executrix; the date of acceptance being written on the back of the notes long before they were accepted by the executrix, and accepted in error."

One John D. Du Bose, a creditor of the succession, also opposed the recognition and payment of the notes, because “said nine notes were all prescribed long before they were pretended to be acknowledged by the executrix, Mrs. Mary E. Winn, and the acknowledgment was made by her in the city of New Orleans, Louisiana, in January or February, 1866, and not on the first day of November, 1865, as it purports." There was no charge, and no attempt to prove that the antedating of the acknowledgment of the executrix had been fraudulently procured; and if the notes were not prescribed until long after January, 1866, as contended by Mayfield, there was no motive to antedate the acknowledgment, and nothing to be gained by so doing. The contention that these notes were prescribed was based on article 3540 of the Civil Code of Louisiana, which declares that “notes payable to order or bearer are prescribed by five years, reckoning from the day when the engagements were payable.” Mayfield contended that the notes had been admitted as valid debts against the succession of Winn by the executrix, on November 1, 1865, as appeared by her indorsement thereon, and, as such indorsement was made before the expiration of five years after the maturity of the notes, it was effectual to suspend prescription, and the notes were therefore not prescribed. Upon the opposition of Mrs. Winn and Du Bose the question whether the nine notes were prescribed was tried by the judge of the district court in which the opposition was filed. He admitted evidence to show, and upon it decided, that the acknowledgment of Mrs. Winn, as executrix, indorsed upon the notes, and purporting to be dated November 1, 1865, was not in fact made on that day, but some time between the first and tenth days of January, 1866. As this was more than five years after the maturity of the notes, it was not competent for the executrix to acknowledge them, and they were apparently barred by the prescription of five years provided by the law of the state.

But the appellant, Mayfield, contended that the notes were saved from the prescription of five years by the act of congress of June 11, 1864, (13 St. 123,) entitled "An act in relation to the limitation of actions in certain cases, which provided that “whenever during the existence of the present rebellion any action, civil or criminal, shall accrue against any person who, by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of judicial proceedings, cannot be served with process,

the time during which such person shall so be beyond the reach of legal process shall not be deemed or taken as any part of the time limited by law for the commencement of such action.' To bring the notes in controversy within the terms of this statute, Mayfield offered to the district court evidence tending to show that Rotchford, Brown & Co., the payees, were domiciled in the city of New Orleans, and were doing business there when the city was taken by the federal forces in 1862, and that Shepherd Brown, one of the members of the firm, was in the city in 1864, and that Mayfield, the appellant, was also a resident of New Orleans. He also introduced testimony tending to show that the United States had no jurisdiction over the par'sh of Rapides during the war, except a military one, and that such military* jurisdiction lasted for but a short time; that the federal troops came to Alexandria, the county seat of Rapides parishı, about March 17, 1864, and remained in possession thereof until about May 15th, when they departed; that before leaving they burned the town of Alexandria, including the court

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house, after which there was a state of disorganization; there was no court and there were no oflicers in the parish until after July 9, 1865; that Mrs. Winn, the executrix, had gone as a refugee to Texas, and no service could have been made on her from the time the court-house was burned until she returned to Rapides parish, in December, 1865. This testimony was uncontradicted.

Upon this evidence the district court decided that, conceding that the acknowledgment of Mrs. Winn as executrix was not indorsed on the nine notes until some day between the first and tenth of January, 1866, yet the prescription of the notes was suspended by the act of congress above recited for a period sufficient to save them from the bar of article 3540 of the Code of Louisiana, and thereupon rendered judgment that the claim of Mayfield was a valid and legal debt due from the succession of Winn and was properly placed in the provisional account as an ordinary claim. Mrs. Winn and Du Bose carried this judgment to the supreme court of Louisiana for review. That court, assuming that the facts which the evidence introduced in the dis. trict court tended to prove were established, reversed the judgment of the district court on the ground that the act of congress on which Mayfield relied to suspend prescription applied only to causes and proceedings in the courts of the United States, and not to causes and proceedings in the courts of the states, and that the claim of Mayfield was therefore prescribed when Mrs. Winn, the executrix, undertook to acknowledge it in January, 1866. The present writ of error, sued out by Mayfield, brings the judgment of the supreme court of Louisiana under review.

E. T. Merrick, for plaintiff in error. Gus. A. Breaux, for defendants in error.

*Woods, J. It is well settled in Louisiana that when a claim against a succession has been formally acknowledged by the executor or administrator, no suit should be brought upon it, and no suit or other proceeding is necessary to prevent prescription as long as the property of the succession remains in the hands of the executor or administrator under administration. Renshaw v. Stafford, 30 La. Ann. 853; Maraist v. Guilbeau, 31 La. Ann. 713; Heirs of Porter v. Hornsby, 32 La. Ann. 337; Cloutier v. Lemee, 33 La. Ann. 305; Johnson v. Waters, 111 U. S. 640; S. C. 4 SUP. Ct. REP. 619. If, therefore, the acknowledgment of Mrs. Winn, executrix, made in January, 1866, was made before the notes were prescribed, prescription has been suspended ever since, for the succession of Winn is still under administration. The notes were all barred in November and December, 1865, by the prescription of five years established by article 3540 of the Civil Code of Louisiana, unless proscription was suspended by the act of congress above recited. The case, there fore, turned in the supreme court of Louisiana upon the question whether the act of congress was applicable. That court decided that it was not, and denied to the appellant the right set up and claimed by him under that statute. If the decision of the supreme court of Louisiana was wrong upon this point, this court has jurisdiction to review and reverse its judgment. Rev. St. 709.

The facts of the case, as shown by the record, bring it within the terms of the act of congress. The parish of Rapides was within the confederate lines during the entire period of the civil war, except for a few weeks, when it was occupied by the federal troops. The authority of the United States was reestablished over the city of New Orleans on May 1, 1862. The payees of the notes were shown to have been domiciled in the city at that time, and as there is no evidence that they afterwards changed their domicile, the presumption is that it continued unchanged. Desmare v. U. 8. 93 U. S. 605. Mayfield is shown to have been a resident in New Orleans. It appears, therefore, that the executrix of the succession of Winn was within the confederate lines, and the payees and the indorsee of the notes within the federal lines. Under

these circumstances they could not lawfully institute proceedings against the succession of Winn, in the parish of Rapides, to enforce the payment of the notes, for intercourse across the military lines was forbidden by law. Moreover, while the prescription of five years was running, the courts of the parish, which alone had jurisdiction of the succession of Winn, were closed for more than a year, a period well described by Lord COKE: "So, when by invasion, insurrection, rebellion, or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up et silent leges inter arma, then it is said to be time of war. Co. Lit. 2496.

The case, therefore, falls within the letter of the act of congress; and if that act applies to and governs cases in the courts of the states, the judgment of the supreme court of Louisiana was erroneous. The question thus raised was expressly decided by this court in the case of Stewart v. Kahn, 11 Wall. 493, where it was held that the act applied to cases in the courts of the states as well as of the United States, and that thus construed the act was consti. tutional. We are satisfied with the judgment of the court in that case, and are unwilling to question or re-examine it. The decision in Stewart v. Kahn was followed by the supreme court of Louisiana in Aby v. Briyham, 28 La. Ann. 840. These cases are conclusive of the present controversy, and, adhering to the ruling made in them, we are of opinion that the notes held by Mayfield were not prescribed, and that the judgment of the supreme court of Louisiana should therefore be reversed, and the cause remanded to that court, with directions to enter judgment that the claim of Mayfield, based on the nine notes of Walter 0. Winn, is a legal and valid debt due from his succession, and that it was properly placed in the provisional account of the dative testamentary executor as an ordinary claim; and is so ordered.

(114 U. S. 429)

UNITED STATES O. PETIT.

(April 7, 1885.) CONSTITUTIONAL LAW-INFAMOUS CRIME-PROSECUTION BY INFORMATION-PASSING COUN.

TERFEIT MONEY-Rev. St. 2 5457.

Passing counterfeit money in violation of Rev. St. § 5457, is an infamous crimo to be prosecuted solely through indictment pursuant to article 5 of the amend

ments to the constitution of the United States. On Certificate of Division of Opinion from Circuit Court of the Eastern District of Missouri. See U. 8. v. Petit, 11 Fed. Rep. 58.

WAITE, C. J. The first question certified in this case is answered in the negative, and the second in the affirmative, on the authority of Ex parte Wilson, ante, 935, decided at the present term.

(115 U. S. 79)
CLARK 0. BEECHER MANUF'G Co. and another."

(May 4, 1885.) 1. PATENTS FOR INVENTIONS_BLANKS FOR CARRIAGE THILL SHACKLES-INFRINGEMENT.

Letters patent No. 66,130, granted to James B. Clark, June 25, 1867, for an “im. provement in the manufacture of blanks for carriage thill shackles," are not in. fringed by the manufacture of blanks for shackles in accordance with letters pat

ent No. 106, 225, granted to Willis B. Smith, August 9, 1870. & SAME-CLARK PATENT.

The features of the Clark patent are that by dies the arms of the blank are bent into an oblique direction, and the body into a curved form, so that the parts where the arms join the body are rounded on the outside as well as the inside; and that when, subsequently, the curved body is straightened, there will be in it sufficient

metal to form sharp outside corners, by being pushed out into them. & SAME-SMITH PATENT.

The arms of the Smith blank are not bent in an oblique direction, its body is not 'S. C. 7 Fed. Rep. 816.

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