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the United States from a decree of a district | a final decree was entered therein on Novem. court dismissing the petition in a suit to en- ber 30, 1859, slightly amending its former forre a final decree of confirmation of a Call decree in substantial compliance with such fornia private land claim, entered on Novem. mandate. This decree is still in force. ber 30, 1859, since, even if the provision of the cuurt of appeals act of March 3, 1891, 8

Afterwards, and on August 10, 1860, the 5. restricting direct appeals to certain ex. surveyor general returned into court a cor. cepted cases, of which this is not one, does rected plat of a survey, purporting to be in not apply, the appellate jurisdiction of the conformity with the decree of November 30,, Supreme Court over decrees of approval or 1859. Thereupon, and on October 8, 1860, correction in proceedings to confirm such

one Carpentier and others filed a petition of claims was, by the express language of the intervention, in which they claimed adverseact of July 1, 1864, § 3, taken away except as to cases where an appeal had already been ly so much land as lay under the waters of taken.

the estuary of San Antonio, up to the high

est tide lands, through mesne conveyances [No. 172.)

from the state of California, and afterwards

filed in court their exceptions to the survey. Argued February 26, 28, 1902. Decided The United States also filed exceptions Durch 24, 1902.

thereto. The litigation thus inaugurated

continued for more than ten years, and fi. N APPEAL from the District Court of nally resulted in a decree of the district

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An ap

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trict of California to review an order dis- survey of the tract, a certified plat of which missing the petition in a suit to enforce a bad been filed in the clerk's office. decree of confirmation of a California pri- peal was taken from this decree by the vate land claim. Dismissed.

United States to the circuit court for the See same case below, 102 Fed. 1006. ninth judicial circuit, by which court the ap

peal was dismissed July 31, 1874, and a deStatement by Mr. Justice Brown: cree entered that the claimants have leave *This is an appeal from an order of the to proceed under the decree confirming the district court of the United States for the survey as a final decree. The Commissioner northern district of California sustaining a of the General Land Office thereupon caused demurrer to and dismissing the petition of to be prepared and recorded a patent of the the appellants, interveners, who prayed that United States for that portion of the lands a certain decree of the above-named district included in the survey. court, made on November 30, 1859, be or- Thirty-seven years after the entry of the dered to be executed.

decree of November 30, 1859, and twentyIt appears that on January 31, 1852, cer- two years after the dismissal of the above tain persons by the name of Peralta pre- appeal in the circuit court, the successors in sented to and filed with the board of land title of one of the Peraltas presented to the commissioners, under the act of Congress “to Commissioner of the General Land Office, ascertain and settle the private land claims September 2, 1896, a plat of a survey of the in the state of California," passed March 3, rancho San Antonio made by the surveyor 1851 (9 Stat. at L. 631, chap. 41), a peti- general of California, November 25, 1895, tion for the confirmation of the rancho of under the act of Congress of July 23, 1866 San Antonio. Subsequently the four claim-|(14 Stat. at L. 218, chap. 219), with certiants divided the lands among themselves in fied copies of the decree of November 30, severalty, and the board, proceeding to ex. 1859, with a request that he issue to the amine the claim upon the evidence, decided petitioners a patent in accordance with such in favor of its validity, but restricted the plat of survey, which the Commissioner de area of the grant by fixing the northern clined to do, September 22, 1896, and boundary line at San Antonio creek, which the Secretary of the Interior affirmed his included about one half of the claim. Both decision. The appellants thereupon, and on parties appealed from this decision, and the July 27, 1899, filed in the district court claim was certified to the district court for for the northern district of California a the northern district of California, in which petition of intervention in the original court a transcript of the proceeding was case

of the United States v. Peralta, filed September 23, 1854. The district court praying that the decree of November upon the trial reversed the decree of the 30, 1859, might be ordered to be land commissioners, and declared the claim cuted; that the government be required to as set forth in the petition to be valid, by issue to the appellants its patent for so decree entered January 26, 1855.

much of the lands of the rancho as had not From this decree the United States ap- theretofore been patented to them, or any pealed to this court, which aflirmed the de- of them. The United States demurred to cree of the district court (1857). United the petition, which on January 29, 1900, was States v. Peralta, 19 How. 343, 15 L. ed. 678. dismissed. [99 Fed. 618.] Two controversies were decided: First, that * This was followed by another similar pethe oficers issuing the grant had power to tition, filed March 29, 1900, based upon the make grants of land; and, second, that the survey of 1895, which was also demurred to, northern boundary of the land extended be and resulted in a decree, rendered May 28, yond San Antonio creek, according to the 1900, sustaining the demurrer and dismisse claim of the petitioners. Upon the mandate ing the petition. Whereupon petitioners of this court being filed in the district court,' appealed to this court.

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Messrs. James T. Boyd, George A. shall proceed to fully determine the matKing, Boyd & Fifield, and Thayer & Řankin ter.” for appellants.

It appears perfectly clear from § 3 that Messrs. Matthew G. Reynolds and the appellate jurisdiction of the Supreme Solicitor General Richards for appellee. Court was taken away, except as to cases

whese an appeal had already been taken. Mr. Justice Brown delivered the opinion With this exception appeals must be taken of the court:

under that act to the circuit court. The The appeal in this case is taken from the law remained in that condition until the decree of May 28, 1900, sustaining the de passage of the court of appeals act of murrer to, and dismissing the petition of, March 3, 1891 (26 Stat. at L. 826, chap. the appellants, which was filed March 29, 517), by the 5th section of which appeals 1900.

can only be taken directly from the district Our jurisdiction of this appeal depends court to this court in cases where the jurisupon certain statutes, which it becomes nec- diction of the district court is in issue, in essary to consider. By the original act of prize cases, criminal cases, constitutional March 3, 1851 (9 Stat. at L. 637, chap. 41), cases, or cases involving the validity or conto ascertain and settle the private land struction of a treaty. As to all other cases, claims in the state of California, a commis- by $ 6 appeal must be taken to the circuit sion of three persons was constituted ($ 1) court of appeals. As we said in McLish v. to settle such claims, whose duty it was (8 Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. 8) to decide upon their validity and to cer. Rep. 118, this act provides for the distributify the same, with their reasons, to the dis- tion of the entire appellate jurisdiction of trict attorney of the United States. By § 9 our national judicial system between the an appeal was given to the district court, Supreme Court and the circuit court of ap. which was empowered to review the deci- peals. As this case does not fall within any sion of the commissioners, and to decide of the classes excepted by & 5, it is clear upon the validity of such claim. By $. 10 that if any appeal will lie at all, it should's the district court was required, on applica- have been taken to the circuit court* of aption of the party against whom judgment peals, and that we have no jurisdiction to was rendered, to grant an appeal to the Su. enforce the execution of this decree by appreme Court of the United States. It was peal from the district court. If the decree held in United States v. Fossatt, 21 How. of November 30, 1859, rendered by the dis445, 16 L. ed. 186, that the jurisdiction of trict court in pursuance of the mandate of the board of commissioners extended, not this court, were not a final decree, it be only to the adjudication of questions relat- came final either August 4, 1871, when the ing to the genuineness and authenticity of modified survey was approved, and an apthe grant, but also to all questions relating peal was taken to the circuit court and the to its location and boundaries; and that it appeal dismissed by Mr. Justice Field, July did not terminate until the issue of a pat. 31, 1874, or upon May 28, 1900, from which ent conformable to the decree.

the appeal was taken in this case. The law remained in this condition until It is clear that, so far as concerns appeals 1864, when on July 1 an act was passed (13 from final decrees, they must be taken under Stat. at L. 332, chap. 194) "to expedite the laws then in existence, and to the court prosettlement of titles to lands in the state of vided by such laws. To say that a decree California," the 2d section of which pro- rendered in 1900 may be appealed to a vided “that where proceedings for the cor- court whose jurisdiction to review it was rection or confirmation of a survey are pend- taken away in 1864 is beyond belief. Even ing

it shall be lawful for such dis- if the court of appeals act do not apply to trict court to proceed and complete its ex. this case, the jurisdiction of this court was amination and determination of the matter, clearly taken away by the act of 1864, and and its decree thereon shall be subject to transferred to the circuit court of the appeal to the circuit court of the United United States for California, except as to States for the district, in like manner, and appeals which had already been taken. If with like effect, as hereafter provided for there had been no reservation of pending appeals in other cases to the circuit court." cases, even such cases would have fallen By $ 3 it was enacted “that where a plat within the law. Baltimore & P. R. Co. v. and survey have already been approved or Grant, 98 U. S. 398, 401, 25 L. ed. 231, 232. corrected by one of the district courts, ..

In that case a writ of error had been sued and an appeal from the decree of approval ment of $2,250 by the supreme court of the

out on December 6, 1875, to reverse a judgor correction has already been taken to the District of Columbia. At that time the apSupreme Court of the United States, the peal was properly taken to this court, but on said Supreme Court shall have jurisdiction February 25, 1879, Congress passed an act to hear and determine the appeal. But limiting writs of error from this court to where from such decree of approval or cor- judgments exceeding the value of $2,500, and rection no appeal has been taken to the Su. it was held that the writ of error must be preme Court, no appeal to that court shall dismissed. Said the Chief Justice: "The be allowed, but an appeal may be taken act of 1879 is undoubtedly prospective in its within twelve months after this act shall operation. It does not vacate or annul take effect, to the circuit court of the United what has been done under the old law. It States for California, and said circuit court'destroys no vested rights. It does not set

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aside any judgment already rendered by jurisdiction cannot prevent an abatement by this court under the jurisdiction conferred reason of defendant's death, because tacts by the Revised Statutes when in force. But

are averred in the declaration from which a a party to a suit has no vested right to an

contract to pay a sum below the jurisdiction

of the court might be implied. appeal or a writ of error from one court to 2. A judgment of a circuit court of the United another. Such a privilege once granted

States sustaining a demurrer to a declara. may be taken away, and if taken away, tion in an action which must be treated as pending proceedings in the appellate court one of tort, and not in assumpsit, in order stop just where the rescinding act finds to involve a sufficient amount to give that them, unless special provision is made to the court jurisdiction, will, on the death of de. contrary. The Revised Statutes gave par

fendant after the cause has reached the apties the right to remove* their causes to this

pellate court, be reversed and the cause re

manded to the circuit court, with instruccourt by writ of error and appeal, and gave tions to set aside its judgment and enter us the authority to re-examine, reverse, or one abating the action by reason of defend. affirm judgments or decrees thus brought ant's death. up. The repeal of that law does not vacate or annul an appeal or a writ [of error] al.

[No. 175.) ready taken or sued out, but it takes away our right to hear and determine the cause, Argued February 28 and March 3, 1902. if the matter in dispute is less than the

Decided March 24, 1902. present jurisdictional amount. The appeal or the writ remains in full force, but we IN ERROR to the Circuit Court of the dismiss the suit because our jurisdiction is United States for the Eastern District of gone."

Virginia to review a judgment sustaining a Similar cases are by no means infrequent demurrer to a declaration in an action in this court. Thus in Yeaton v. United against a collector of internal revenue. ReStates, 5 Cranch, 281, 3 L. ed. 101, it was versed and remanded, with instructions to held that if the law under which a sentence set aside the judgment and enter a judg. of forfeiture was inflicted expired or were ment abating the action. absolutely repealed after an appeal and be. fore sentence by the appellate court, the sen. Statement by Mr. Justice Brewer: tence must be reversed. See also The Rachel On September 11, 1900, the plaintiff in v. United States, 6 Cranch, 329, 3 L. ed. error as plaintiff commenced this action in 239; United States v. Preston, 3 Pet. 57, 7 the circuit court of the United States for L. ed. 601; Norris v. Crocker, 13 How. 429, the eastern district of Virginia. The dec 14 L. ed. 210. In Merchants' Ins. Co. v. laration, after stating that both parties Ritchie, 5 Wall. 541, 18 L. ed. 540, it was were citizens of Virginia, alleged that the held that the jurisdiction of the circuit plaintiff was a state bank, chartered under courts between citizens of the same state in the laws of that state, and the defendant a internal revenue cases, conferred by the act colloctor of internal revenue of the United of 1864, was taken away by the act of 1866, States for the second district of Virginia, and that cases pending at the passage of and that "beteween the months of Novemthe act fell with its repeal. Ex parte Mc-ber, 1899, and August, 1900, the plaintiff Cardle, 7 Wall. 506, 19 L. ed. 264. These made, issued, and paid out $700 of its circases fully establish the proposition that a culating notes payable to the bearer and inrepealing statute which contains no saving tended to be used for circulation in ordiclause operates as well upon pending cases nary business as currency. The Commis. as upon those thereafter commenced.

sioner of the Revenue of the United States In the case under consideration there was assessed upon these notes a tax of 10 per a saving of suits already begun, but there cent on their face value, equal to $70, which was an express proviso that, where no ap- said tax is imposed upon them by the 19th peal had been taken to the Supreme Court, section of the act of Congress of February no appeal to that court should be allowed. 8, 1875 (18 Stat. at L. 307, chap. 36], and That law remained unchanged until the by $ 3412 of the Revised Statutes of the court of appeals act of 1891, to which all United States; and said defendant, James appeals from circuit or district court must D. Brady, acting as said collector of internal now be taken, with a few specified excep-revenue of the United States, required of tions.

plaintiff and demanded of it that it pay said The appeal must be dismissed.

tax; but because said section of said act of

February 8, 1875, and said $ 3412 of the (184 U. S. 665)

Revised Statutes of the United States, imBANK OF IRON GATE, Piff. in Err., posing said tax upon said notes, are repug;

nant to the Constitution of the United MAGGIE A. BRADY, Executrix of James States, the plaintiff refused to pay said unD. Brady, Deceased.

lawful tax; therefore on the day of

September, 1900, the defendant forcibly enAbatement of action—tort or assumpsit- tered upon the premises of the plaintiff by estoppel by election.

virtue of a distress warrant held by him,

authorizing and commanding him to collect 1. A plaintiff whose cause of action must be said unlawful tax, and levied on and seized

treated as an action of tort in order to in a large quantity of plaintiff's personal volve an amount sufficient to give the court 'property, and was in the act of removing

22 S. C.-34.

and carrying away said property to sell the jury to the plaintiff and damaging its same when the plaintiff, protesting against credit, but no wrongful act is charged the illegality of defendant's act, paid him against him except it be in the mere collecsaid tax to procure a release of its said tion of this alleged illegal tax. If the tax property; that defendant well knew said is legal, then nothing is disclosed which acts of Congress imposing said tax were would give any right of recovery to the repugnant to the Constitution of the United plaintiff; nothing was done by the collector States, and he entered upon plaintiff's prem- in making the collection other than was ises and levied on and seized its property, strictly his duty. So, on the other hand, if well knowing that he was doing unlawful the tax be adjudged illegal, no act of wrong acts, and he did the same maliciously and is shown except in the fact of compelling with the purpose and intention of doing a payment. In other words, he is charged wanton injury to plaintiff and damaging its with doing nothing that an officer ought not credit, so as to do it all the harm possible, to have done in attempting to make a coland said unlawful act has damaged its credit lection. An averment that a party has and done it an irreparable injury; that the acted maliciously and with the intention of act of Congress authorizing the issue of said doing a wanton injury does not add to the distress warrant to collect said unlawful measure of relief obtainable in an action of tax is repugnant to the Constitution of the implied assumpsit. If it does in any acUnited States, and because all of said acts tion, it is only in one sounding wholly in of Congress are repugnant to the Constitu- tort, in which malice and wantonness may tion of United States the plaintiff's case sometimes justify exemplary damages. arises under the Constitution of the United The case stands thus: If this is to be States; that said unlawful acts of said de- treated as an action of assumpsit,

then the fendant have damaged the plaintiff $6,000, amount in controversy is not sufficient to and therefore it sues."

give the circuit court jurisdiction; if as an A demurrer to this declaration was filed, action of tort, then it did not survive. But sustained, and judgment entered for the dea party cannot unite the two; avail* himself fendant. Thereupon this writ of error was of the large amount claimed on account of sued out. After the case had reached this a tort in order to vest jurisdiction in the court the defendant, James D. Brady, died, circuit court, and then on the death of the and an application was made to revive in alleged wrongdoer prevent an abatement of the name of his personal representative. the action, which would necessarily take

place if the action was only for a tort, by Mr. William L. Royall for plaintiff in reason of an averment of facts from which error.

a contract to pay a small sum, one below the Solicitor General Richards for defend- jurisdiction of the court, might be implied. ant in error.

In other words, he cannot call it tort to ac

quire jurisdiction, and contract to prevent Mr. Justice Brewer delivered the opin- abatement. The plaintiff elected to go inion of the court:

to court on an action sounding in tort. It We have recently had before us a simi. could not get in in any other way. It lar action against the same party, in which must abide by its election and cannot be also was presented the question of survivor- permitted to transform its action thereafter ship, Pation v. Brady, 184 U. S. 608, ante, into one of contract. Abatement must p. 493, 22 Sup. Ct. Rep. 493, and to the therefore follow. opinion filed in that case we refer for a dis No judgment was entered in favor of the cussion of the question. There the amount plaintiff. There has been no adjudication of property taken by the defendant as col. in its favor, either on the contract or the lector was over $3,000; here it is only $70. tort. What disposition ought now to be So far as a recovery of the tax charged to made of the case? In Martin v. Baltimore have been illegally levied and collected is & 0. R. Co. 151 U, S. 673, sub nom. Gerling sought, it is practically an action in as y. Baltimore &0. R. Co. 38 L, ed. 311, 14 sumpsit for money had and received. Be Sup. Ct. Rep. 533, where the action sounded yond that nothing is suggested but a tort, wholly in tort, it was said (p. 703, L. ed. and a tort by which the estate of the defend- 322, Sup. Ct. Rep. 545): ant was not increased and the estate of the “The result is that by the law of Virginplaintiff damaged only as an indirect conse- ia the administrator has no right to mainquence of the alleged wrongful act of the tain this action, and that by the statutes of defendant. Such a tort does not, either at the United States regulating the proceedcommon law or by the statutes of Virginia, ings in this court he is not authorized to survive the death of the wrongdoer. See come in to prosecute this writ of error. The authorities referred to in the opinion cited. only verdict and judgment below were in

It may be added that it is not easy to favor of the defendant, who is not moving see how upon the acts charged against the to have that judgment affirmed or set aside. defendant there could be, even if the tax The original plaintiff never recovered a ver were declared illegal, any further recovery dict, judgment upon which might be entered than the amount of such tax, with interest. or afirmed nunc pro tunc in his favor. If It is true there is an averment that the de the judgment below against him should now, fendant knew he was doing unlawful acts, upon the application of his administrator, that he did them maliciously and with the be reversed and the verdict set aside for er purpose and intention of doing a wanton in- I ror in the instructions to the jury, or, ac

.667

699.

cording to the old phrase, a venire de novo that they were issued by authority of such be awarded, no new trial could be had, be act, stating its title and date of approval. cause the action has abated by his death. 3. A de facto corporation which has received Hemming_v. Batchelor, L. R. io Exch. 54, full consideration for bonds issued by It can. 44 L. J. Exch. N. S. 54; Bouker v. Evans,

not set up the fact that it was never legally L. R. 15 Q. B. Div. 565; Spalding v. Cong

incorporated, as a defense to a suit, by a

bona fide holder for value and without nodon, 18 Wend. 543; Corbett v. Twenty-third

tice, to recover the interest due on such Street R. Co. 114 N. Y. 579, 21 N. E. 1033; bonds. Harris v. Crenshaw, 3 Rand. (Va.) 14, 24; Cummings v. Bird, 115 Mass. 346.

(No. 508.] “The necessary conclusion is that, the action having abated by the plaintiff's death, Submitted January 13, 1902. Decided the entry must be writ of error dismissed.”

March 24, 1902. We are inclined to think that such is not exactly

the proper disposition to be made I United States for the Southern District of this case, because in the plaintiff's cause of action is stated a claim for the recovery of California to review a judgment for of a tax, which, as alleged, it has been plaintiff in an action to recover the interest wrongfully compelled to pay. While the due on bonds issued by an irrigation dis circuit court may not have jurisdiction of trict. Affirmed. an action for that claim on account of the See same case below, 94 Fed. 1. small amount thereof, it would not be right to leave the present judgment as a bar to Statement by Mr. Justice Peckham: an action in a court that could take juris. This is a writ of error to the circuit court diction. The proper judgment is, and it is of the United States for the southern disso ordered, that the case be remanded to the trict of California, sued out for the purpose circuit court, with instructions to set aside of reviewing a judgment of that court in its judgment and enter one abating the ac- favor of the defendant in error in an action tion by reason of the death of the defendo brought by him against the irrigation disant.

trict only, to recover interest due on certains Case No. 194, between the same parties, coupons attached to bonds issued by the disinvolves the ame question, and will be district for the purpose of raising money to posed of in the same way.

build its irrigation works. It appeared

from the complaint that the plaintiff was Mr. Justice Gray took no part in the de- a resident of Michigan, and that the Tulare cision of this case.

irrigation district had at all times since

September 2, 1889, been a corporation duly (185 U. S. 1)

incorporated under the laws of the state of TULARE IRRIGATION DISTRICT, George acting as such corporation; that under the

California, and since that time had been G. Kelly, and G. Garibaldi, as Executor laws of such state the irrigation district of the Last Will of B. W. Jauchius, De duly issued its bonds for the amount of ceased, Plffs. in Err.,

$500,000, with coupons attached; that the

plaintiff was a bona fide purchaser and ALFRED SHEPARD.

holder of certain of those coupons, and that

he had paid full value for the same, in the Bonds of irrigation district-defective or usual course of business, and before any of

ganization-estoppel of landowners_de them were due or dishonored, and in good facto corporation.

faith and without any notice of any defect

or invalidity of the same or any of them. 1. A de facto corporation was constituted by Judgment for $13,185 and interest was de

a bona fide attempt to organize an Irrigation manded. The defendant demurred to the district under the Californla Irrigation act of March 7, 1887 (providing for the creation complaint, the demurrer was overruled (94 of such districts as publlc municipal corpo- Fed. 1), and the defendant then answered. rations), accompanied by an actual user of

The answer, among other things, set up tbe corporate franchise.

various alleged irregularities and omissions 2. Defective organization of an irrigation dis- which occurred in the attempted formation

trict, under the California Irrigation act of of the irrigation district, on account of March 7, 1887, because of the insufficiency which, as contended, the corporation never of the notice of the intended presentation to was legally formed and never had power to the board of supervisors of the petition for issue bonds, and whatever bonds may the formation of such district, cannot be raised, as against bona fide holders for full have been issued were for those reasons value and without notice of bonds issued by void. The individual defendants at this such district, by the owners of land within stage applied to the court for an order per. the district, who acquiesced in the issue of mitting them to intervene in the action as the bonds and received the full benefit of parties therein, and to unite with the dethe proceeds, where the board of supervisors, fendant corporation in resisting the claims In the exercise of their statutory authority, of the plaintiff in this action. The court ganized, and fled a copy of such determina thereupon ordered that the petitioners' com. tion with the county recorder as required by plaint'in intervention should be filed with. such statute, and the bonds contained a reo out prejudice to the plaintiff's motion to cital, in compliance with $ 15 of that act, strike out the same. They then filed what

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