extended by request of the owner to thirty-eight consecutive hours without unloading six hours, and prescribing a penalty for the same in a humane manner, into prop every failure of the carrier to comply with erly equipped pens, for rest, water, and this provision, where the time for the re-feeding, for a period of at least five conquired unloading of two shipments loaded at different times coincides, because one secutive hours, unless prevented by . unavoidable causes shipment was forwarded under the thirtysix-hour rule, and the other was made eight hours later, under the twenty-eight-hour rule, from a different station. [Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 95, 927; Dec. Dig. § 37.*] Provided, That upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lad COURTS (§ 328*)—JURISDICTIONAL AMOUNTS, or other railroad form, the time of -CONSOLIDATED SUIT. confinement may be extended to thirty-six hours. In estimating such confinement, the time consumed in loading and unloading shall not be considered, but the time during which the animals have been confined without such rest or food or water on connecting roads shall be included, it being the 3. The aggregate sum of the possible penalties sued for in several actions brought by the United States against a carrier under the act of June 29, 1906, requiring the unloading of live stock during transit, and consolidated, is the amount in dispute for the purpose of sustaining the appellate jur-intent of this act to prohibit their continuisdiction of the Federal Supreme Court. [Ed. Note.-For other cases, see Courts, Cent. Dig. 890-836; Dec. Dig. § 328.*] ous confinement beyond the period of twenty-eight hours, except upon the contingencies COURTS (352*)-CONSOLIDATION OF AC- herein before stated. "Sec. 2. That animals so unloaded shall 4. A Federal circuit court may properly be properly fed and watered during such consolidate, under U. S. Rev. Stat. § 921, U. S. Comp. Stat. 1901, p. 685, several actions brought by the United States against a carrier to recover the penalty prescribed by the act of June 29, 1906, for violations of its requirement as to unloading live stock during transit. [Ed. Note-For other cases, see Courts, Cent. Dig. § 926-932; Dec. Dig. § 352.*] [Nos, 7, 8.] Argued March 4, 1910. Affirmed by divided court, March 14, 1910. Rehearing granted April 4, 1910. Reargued January 5 and 6, 1911. Decided March 20, 1911. I N ERROR to the United States Circuit Court of Appeals for the Sixth Circuit to review a judgment which, reversing the judgment of the District Court for the Southern District of Ohio, held that the shipment was the unit of offense in actions by the United States to recover a statutory penalty for failing to unload live stock during transit. Modified by holding that the times of loading determine the number of offenses, and as so modified, affirmed. See same case below, 86 C. C. A. 223, 159 Fed. 33. rest. "Sec. 3. That any railroad . . . who knowingly and wilfully fails to comply with the provisions of the two preceding sections shall, for every such failure, be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. "Sec. 4. That the penalty created by the preceding section shall be recovered by civil action in the name of the United States. " Under this act eleven actions were instituted in the southern district of Ohio against the Baltimore & Ohio Southwestern Railroad Company. The complaint in each case gave the name of the station in Illinois from which the animals were shipped to*Cincinnati, the marks of the cars in which they were shipped, the hour on February 2, 1907, when they were loaded, and the various periods of confinement, which varied from thirtyseven to forty-five hours. The separate shipments consisted of one, two, three, and four car-load lots, aggregating twenty-one cars, containing several hundred cattle and hogs. Most of the shipments were loaded at different times; but because one (1872) was forwarded under the thirty-six hour rule, the time for its unloading was the same as that of another shipment (1871), made eight hours later under the twenty-eight hour rule, from a different station. At another station there were three shipments of one car load each of cattle belonging to shall confine different owners, loaded at the same time, the same in cars, boats, or vessels of any but two (1869, 1873) of the cars were fordescription for a period longer than twenty-warded under the twenty-eight hour rule, Statement by Mr. Justice Lamar: "The act to prevent cruelty to animals while in transit," approved June 29, 1906 (34 Stat. at L. 607, chap. 3594, U. S. Comp. Stat. Supp. 1909, p. 1178), provides: "Sec. 1. That no railroad whose road forms*any part of a line of road over which cattle or other [in in animals shall be conveyed For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 31 S. C.-24 •103 and the other (1874) under the thirty-six | p. 2996), it was held that the penalties hour rule. The railroad company filed a separate plea in each case, admitting the allegations of the complaint, but setting up that "the shipment therein was forwarded to Cincinnati on its train No. 98, on which there were also loaded and forwarded other cattle, referred to in each of the other suits, and in the said several causes the said plaintiff is entitled to recover but one penalty, not to exceed $500, which it is ready and willing to pay, and it pleads the said separate suits in bar to the recovery of more than $500 for all of the same." The district attorney's motions for separate judgments on the admission in the several pleas were overruled. The court sustained the company's motion to consolidate the causes, entered judgment for a single penalty, and ordered "that the within or der in case 1866 shall apply to, operate upon, and be conclusive of, all the rights of the plaintiff in each of the several causes, to wit, 1867-1874, 1880 and 1884." The government sued out a writ of error in case 1866, and, apparently out of abundant*caution, another in 1867, later entering into a stipulation in the circuit court of appeals that the result in these two cases should control all the others. The circuit court of appeals for the sixth circuit (86 C. C. A. 223, 159 Fed. 33) held that the order of consolidation was proper, but reversed the judgment on the ground that the United States were entitled to recover eleven penalties, or one for each of the eleven shipments. Messrs. Edward Colston, Judson Harmon, A. W. Goldsmith, and George Hoadly for plaintiff in error. were not to be measured by the number of cattle in the shipment, nor the number of cars in which they were transported. United States v. Boston & A. R. Co. 15 Fed. 209; United States v. St. Louis & S. F. R. Co. 107 Fed. 870. And the company contends that, as the cattle here were in one train, the failure to unload was one offense, punishable by one penalty. In support of its position it relies, among others, on authorities which hold that in larceny, if the goods stolen at one time belong to several persons, the offense is single; and that, on conviction for working on Sunday, there is only one breach of the statute, the penalty for which cannot be multiplied by the number of items of work done on the day of rest. But this does not mean that if the thief should, at a different time, steal property from the same place, he could not be punished for the new transaction, nor that because a man had been convicted for working on one Sunday, he could not be convicted and punished for subsequently working on a different Sunday. For every penal statute must have relation to time and place, and corporations whose operations are conducted over a large territory, by many agents, may commit offenses at the same time in different places, or at the same place at different times. Here the twenty-one cars, loaded at different periods, had been gathered into one train. As the period of lawful confinement of the cattle first loaded expired, there was a failure to unload. For that failure the statute imposed a penalty. But there was then no offense whatever as to the animals in the other twenty cars of the same train, which, up to that time, had not been con Solicitor General Bowers for defendant fined for twenty-eight hours. in error. Assistant Attorney General Denison for defendant in error on reargument. * Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court: The consolidated record of the eleven cases shows that several hundred cattle and hogs of eleven different owners, shipped in twenty-one cars, loaded at different stations at various hours on February 2, 1907, were in one train at the time of the expiration of the successive periods for the unloading required by the act of 1906, "to prevent cruelty to animals in transit." The question is as to the number of penalties for which, in such a case, the carrier is liable. Under the nearly identical act of 1873 (Rev. Stat. 4386. U. S. Comp. Stat. 1901, When, however, later in the day, at the same or a different place, the time for the lawful confinement of the animals in the other twenty cars successively expired, there were similar but distinct and separate failures then and there to unload. They were separately punishable, since the provision that "for every such failure" the company shall be liable to a penalty prevented a merger. If the period of lawful confinement of several car loads of cattle expires at the same time and place, and the company fails to unload them, as required by the statute, and if these cattle all belong to one owner, it is conceded that there is only one offense. It is not different if the same cattle, at the same time and place, had belonged to various owners, or had been shipped under different consignments. Several expressions in the statute, and particularly the provision that, in estimat *104 106 *105 ing the period of lawful confinement, "the time consumed in loading and unloading shall not be considered," recognize that the proper loading or unloading of a number of animals may be treated as a single act, and there is nothing to indicate that it is to be treated as more than one act because the animals happen to belong to different persons. The loading of numerous cars might proceed concurrently; or, if not discontinuous or unduly prolonged, several cars of cattle of the same consignor might be loaded at the same time, within the meaning of the act, in which event the period of their lawful confinement on the same train would end at the same time and place. There would in this latter case be coincidence between the one shipment and the one offense. But, in determining whether the number of penalties is always to be measured by the number of shipments on the same train, even when the animals were loaded at different times, it is to be remembered that the statute is general. It applies to the transportation of a train load of cattle belonging to one owner; to the more usual case where animals belonging to one or more owners are loaded into different cars at different times; and also to those instances where one or a few horses or other animals are shipped, and at a different time or farther on during the journey other animals are loaded into the same car. These differences in shipments do not affeet the duty of the carrier to the animals, but only the time when the duty to unload is to be performed. The number of consignors, the consent of the owner or agent in charge of the particular shipment that the cattle might be confined for thirty-six hours, the number of bills of lading, and the particulars of the shipment, are immaterial, except as they serve to fix the limit of lawful confinement. To illustrate: It appears in this record that several hundred animals belonging to one owner and consigned to one dealer were loaded into four cars at the same time. The twenty-eight hours of their lawful confinement necessarily expired at the same time. The simultaneous failure to unload these four cars was single, and punishable as a single offense. But the duty and offense in this transaction would not have been quadrupled if the company had issued to the owner four bills of lading instead of one. Nor would there have been any increase of duty if these same cattle had been received from four consignors instead of one. States for each failure to unload cattle, regardless of who may own them, and even if the owner consented to their confinement beyond a period of thirty-six hours. The title of the act is "to prevent cruelty to animals in transit," its declared "intent being to prohibit their continuous confinement beyond a period of twenty-eight hours, except upon the contingencies herein before stated." Regardless of the number of shipments, at any time and place where they are wilfully and knowingly confined beyond the lawful period, there is a violation of the statute as to the animal or animals then and there in custody for transit in interstate commerce. The point is made in the brief that this court has no jurisdiction, because the amount involved in the cases embraced in these writs of error was only $1,000. The court, we think properly, consolidated all the cases (Rev. Stat. § 921, U. S. Comp. Stat. 1901, p. 685), and, as consolidated, the amount of the possible penalties sued for in the eleven actions was fifty-five hundred dollars. The company is liable for nine penalties, because nine times it failed to unload as required by the statute. One penalty should be imposed as to animals referred to in cases numbered 1871 and 1872, and one as to those in 1869 and 1873, where the time for the required unloading respectively coincided. In other respects the judgment of the Circuit Court of Appeals, reversing the judgment of the District Court, is affirmed. (220 U. S. 90.) MARGARET E. TAYLOR, in Her Own Right and as Executrix of Thomas Taylor, Deceased, Appt., MARY V. J. LEESNITZER, Elizabeth E. Padgett, and Franklin C. Padgett. APPEAL AND ERror (§_797*)—DISMISSAL— DEFECT OF PARTIES-TIME OF MOTION. The omission of one of the adverse parjustify the court of appeals of the District ties from the supersedeas bond does not of Columbia in dismissing on motion an appeal to that court, where such motion was not made within the time prescribed by a court rule for moving to dismiss for want of a bond, and then was not based upon the defect in the bond, a defect of parties to the but upon the bond is supposed to appeal, which disclose, but which could not in fact exist, because the appeal was taken in open court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. § 797.*] [No. 45.] The statute was not primarily intended for the benefit of the owners. Indeed, it is restrictive of their rights. The penalty does Argued March 8, 1911. Decided March 20, not go to the consignor, but to the United 1911. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes A PPEAL from the Court of Appeals of the District of Columbia to review a decree which dismissed an appeal from a decree of the Supreme Court of the District. Reversed. See same case below, 31 App. D. C. 92. The facts are stated in the opinion. Messrs. J. J. Darlington and J. Nota McGill for appellant. Mr. Edmund Burke for appellees. as Mrs. Padgett had admitted the allegations of the bill, and had arrayed herself on the plaintiff's side, and as she had got all that she could expect by the decree, the appellant did not need to obtain a severance, but that the appeal should have been taken against her as well as against the plaintiff, and that the supersedeas bond should have run to both, which "an inspection of the bond in office of the clerk below" showed not to have been the case. It *Mr. Justice Holmes delivered the opin- was objected that the court could not look ion of the court: This is an appeal from a decree of the court of appeals of the District of Columbia, dismissing an appeal from a* decree of the supreme court. The bill was brought by the appellee Leesnitzer, as one of the heirs of Thomas Taylor, for a partition between herself and the other heirs of lands acquired by Taylor after the execution of his last will. By the will, Taylor left all his estate, both real and personal, to his widow, the appellant. See Bradford v. Matthews, 9 App. D. C. 438; Crenshaw v. McCormick, 19 App. D. C. 494; D. C. Code § 1628 [31 Stat. at L. 1433, chap. 854]; Hardenbergh v. Ray, 151 U. S. 112, 38 L. ed. 93, 14 Sup. Ct. Rep. 305. The bill, of course, was adverse to the appellant's right under the will, and also prayed that she might be declared barred of her dower. See Clark v. Roller, 199 U. S. 541, 545, 50 L. ed. 300, 302, 26 Sup. Ct. Rep. 141. After a trial there was a decree for the plaintiff "unless the defendant, Margaret E. Taylor, shall perfect her appeal from this decree, which is prayed by her in open court and allowed, by giving a supersedeas bond in the penal sum of $1,000." The decree was filed on May 28, 1907. On June 3, 1907, an appeal bond was filed, but, in accordance with the rules, under ordinary conditions, was not printed in the transcript of the record sent to the court of appeals. The record was filed in that court on July 17, 1907. On February 12, 1908, the plaintiff Leesnitzer filed a motion that the appeal be dismissed, because (1) Elizabeth E. Padgett, an heir and one of the defendants, "has not been joined either as an appellee or appellant or as a party hereto. (2) That there has been no summons and severance, or service of notification of appeal upon said Elizabeth E. Padgett. Edmund Burke, solicitor for appellee." This motion was granted, on the ground that Mrs. Padgett was not made a party to the appeal. Thereupon the appellant moved to modify the decree by allowing the appellant to correct her appeal by citing the omitted parties, and for such further proceedings as might be necessary to a decision of the cause upon its merits. The court held that beyond the record before it, which, as we have indicated, contained only a memorandum that a bond had been filed. But the record was entitled, "Margaret E. Taylor, etc. v. Mary J. Leesnitzer," until within a few days before the case was called for hearing, when the appellant ex parte caused the cover of the printed record to be changed so as to name also Elizabeth E. Padgett and Franklin Padgett as appellees. It was said that if the court should confine itself to the record, the presumption was that the title of the appeal followed the obligation of the bond. On this ground the court, with expressions of regret, considered itself not at liberty to entertain a motion for leave to file an additional bond. We generally are slow to overrule the decisions of courts other than courts of the United States upon matters of local practice. But as the court of appeals unwillingly yielded a consideration of the merits to what, in the circumstances, probably was little more than form, we feel less hesitation than otherwise we might in acting upon our opinion that it took too strict a view of its own powers. The first decision went on the ground that Mrs. Padgett was not made a party to the appeal, and, if we correctly understand the second, it also seems to have stood on the same notion, deduced as a conclusion from the form of the bond, as disclosed by inspection or presumed. No other was open under the motion except one discarded by the court, as we have shown, and no other was or was likely to be taken by the court of appeals. But this ground? cannot be taken on the record,* because the decree in the supreme court states that an appeal was prayed in open court. When an appeal is taken in open court, it does not need the formalities of ancient law to indicate that it is taken against all adverse interests. All parties are present in fact or in law, and they have notice then and there. No citation is required. Chicago & P. R. Co. v. Blair, 100 U. S. 661, 25 L. ed. 587; Brockett v. Brockett, 2 How. 238, 11 L. ed. 251. The requirement of a bond by a rule of the court of appeals does not go to the essence of the appeal, as is shown by the condition in the rule that the motion to dismiss for want of one must be "made | conform to a decree of the Federal Supreme within the first twenty days next after the receipt of the transcript in this court." Rule X. As the parties in this case had notice of the appeal, they were put upon inquiry as to the scope of the bond, and if, as the court of appeals says, there is a presumption that the title of the transcript follows the obligation of the bond, they had actual notice of its form. But the bond cannot create a retrospective presumption as to the effect of the words spoken in open court on the scope of the appeal. That was settled when the appeal was claimed. It follows that no excuse is shown for not objecting to the form of the bond within twenty days. The motion to dismiss was not made until more than six months after the receipt of the transcript, and then | was not based on the defect of the bond, but on supposed defects in the appeal. It was not made on behalf of the party aggrieved by the omission from the bond. The time has gone by when the appellant can be turned out of court because Mrs. Padgett was not joined as obligee, but if, as we have tried to show, the proper parties were all before the higher court, no doubt leave would be given to file an additional bond if an amendment were desired. Decree reversed. (220 U. S. 83.) IN THE MATTER OF THE EASTERN MANDAMUS (§ 143*)-COURT OF CLAIMSMANDATE OF SUPREME COURT-LACHES. A delay of more than three years after the court of claims decreed, with all the parties before it, that the mandate of the Federal Supreme Court modifying a prior decree of the court of claims, awarding the Cherokee Indians the amounts due from the United States under treaty stipulations, required a distribution per capita, is such laches as bars mandamus to require the court of claims to conform to such mandate, which, it is contended, directed a per stirpes distribution, and such delay is not excused on the theory that the remedy by mandamus was only available when the roll of those Indians entitled to share in the award, prepared in accordance with the order of the court of claims, was approved, because until that time there was uncertainty as to what the court might do. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 282-285; Dec. Dig. 143.*] [No. 15, Original.] Court, modifying a decree of the Court of Messrs. George M. Anderson and John Mr. Justice McKenna delivered the opinion of the court: Petition for mandamus to the court of claims to require it to conform to a decree of this court modifying a decree of that court in the case of the United States v. Cherokee Indians, 202 U. S. 101, 50 L. ed. 949, 26 Sup. Ct. Rep. 588. A rule to show cause was issued, to which a response has been made by the court of claims. A recitation of the facts of the litigation between the Eastern Cherokees and the United States need not be made. They are set out in 202 U. S. 201. We are only concerned with the decree and what took place in accordance with it in the court of claims. It is enough to say that the Eastern Cherokees, under the authority of acts of Congress, brought suit against the United States for certain sums alleged to be due under treaties with the United States, and the court of claims decreed May 18,*1905, that, after deducting counsel fees, costs, and expenses, the sum of $1,111,284.70, among other sums, with interest, should be paid to the Secretary of the Interior, to be by him received and held for the use and purpose of paying costs and expenses as stated, and the remainder to be distributed "directly to the Eastern and Western Cherokees, who were parties to the treaty of New Echota, as proclaimed May 23, 1836 [7 Stat. at L. 478], or to the treaty of Washington of August 6, 1846 [9 Stat. at L. 871], as individuals, whether east or west of the Mississippi river, or to the legal representatives of such individuals." We held that the decree, "in directing that the distribution be made to 'the Eastwas "perern and Western Cherokees,' haps liable to misconstruction," though limited by a reference to the treaties, and decided that the decree should be modified "so as to direct the distribution to be made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, par Argued February 20, 1911. Decided March ties to the treaties of 1835-36 and 1846, ex P 20, 1911. ETITION for a Writ of Mandamus to clusive of the Old Settlers." As modified, the decree was affirmed. We also decided that the amount of the the Court of Claims to require it to decree "should be paid to the Secretary of •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |