2. In proceedings under a bill to enjoin the collection of taxes for a series
of years, where the proof only shows the amount of the assessment for
one year, which is below the jurisdictional amount, it cannot be as-
sumed, in order to confer jurisdiction, that the assessment for each of
the other years was for a like amount. Ib.
3. When a Circuit Court dismisses a bill for want of jurisdiction it is
without power to decree the payment of costs and penalties. Ib.
4. In the absence of parties interested, and without their having an op-
portunity to be heard, a court is without jurisdiction to make an adjudi-
cation affecting them. New Orleans Water Works Co. v. New Orleans,
471.
5. The objection to the jurisdiction in the Circuit Court presented by
filing the demurrer for the special and single purpose of raising it,
would not be waived by answering to the merits upon the demurrer
being overruled. In re Atlantic City Railroad, 633.
6. Since the act of July 13, 1888, c. 866, took effect, the jurisdiction of a
Circuit Court of the United States over an action brought by a citizen
of another State against a national bank established and doing busi-
ness in a State within the circuit, depends upon citizenship alone, and,
if that jurisdiction be invoked on that ground, the jurisdiction of the
Court of Appeals of the circuit is final, even though another ground
for jurisdiction in the Circuit Court be developed in the course of the
proceedings. Ex parte Jones, 691.
C. JURISDICTION OF THE COURT OF CLAIMS.
It was the intention of Congress, by the language used in the act of
August 23, 1894, c. 307, 28 Stat. 424, 487, to refer to the Court of
Claims simply the ascertainment of the proper person to be paid the
sum which it had already acknowledged to be due to the representa-
tives of the original sufferers from the spoliation, and not that the
decision which the Court of Claims might arrive at should be the sub-
ject of an appeal to this court; and that when such fact had been
ascertained by the Court of Claims, upon evidence sufficient to satisfy
that court, it was to be certified by the court to the Secretary of the
Treasury, and such certificate was to be final and conclusive. United
States v. Gilliat, 42.
D. JURISDICTION OF TERRITORIAL SUPREME Courts.
1. Section 1852 of the Compiled Laws of New Mexico of 1884 which pro-
vides that "when any justice of the Supreme Court shall be absent
from his district, or shall be in any manner incapacitated from acting
or performing any of his duties of judge or chancellor, in his district,
or from holding court therein, any other justice of the Supreme Court
may perform all such duties, hear and determine all petitions, motions,
demurrers, grant all rules and interlocutory orders and decrees, as also
all extraordinary writs in said district," was within the legislative
power of the assembly which enacted it, and is not inconsistent with
the provision in the act of July 10, 1890, c. 665, 26 Stat. 226, for the
assignment of judges to particular districts, and their residence
therein; and while, for the convenience of the public, it was provided
in the organic act, that a justice should be assigned to each district
and reside therein, there was no express or implied prohibition upon
any judge against exercising the power in any district other than the
one to which he had been assigned, and there was nothing in the
language of the provision requiring such a construction as would con-
fine the exercise of the power to the particular justice assigned to a
district when he might be otherwise incapacitated. Gonzales v. Cun-
ningham, 612.
2. In that territory a trial judge may continue any special term he is hold-
ing until a pending case is concluded, even if the proceedings of the
special term are thereby prolonged beyond the day fixed for the
regular term. lb.
E. JURISDICTION OF STATE COURTS.
1. When the enabling act, admitting a State into the Union, contains no
exclusion of jurisdiction as to crimes committed on an Indian reserva-
tion by others than Indians or against Indians, the state courts are
vested with jurisdiction to try and punish such crimes. United States
v. McBratney, 140 U. S. 621, to this point affirmed and followed.
Draper v. United States, 240.
2. The provision in the enabling act of Montana that the "Indian lands
shall remain under the absolute jurisdiction and control of the Con-
gress of the United States" does not affect the application of this
general rule to the State of Montana. 1b.
F. JURISDICTION OF CHEROKEE NATION COURTS.
The deceased sought to become a citizen of the Cherokee Nation, took all
the steps he supposed necessary therefor, considered himself a citizen,
and the Nation in his lifetime recognized him as a citizen, and still
asserts his citizenship. Held, that, under those circumstances, it must
be adjudged that he was a citizen by adoption, and consequently that
the jurisdiction over the offence charged is, by the laws of the United
States and treaties with the Cherokee Nation, vested in the courts of
that Nation. Nofire v. United States, 657.
1. Courts of equity withhold relief from those who have delayed the asser-
tion of their claims for an unreasonable time; and this doctrine may
be applied in the discretion of the court, even though the laches are
not pleaded or the bill demurred to. Willard v. Wood, 502.
2. Laches may arise from failure in diligent prosecution of a suit,
which may have the same consequences as if no suit had been insti-
tuted. Ib.
3. In view of the laches disclosed by the record, that nearly sixteen years
had elapsed since Bryan entered into the covenant with Wood, when,
on March 10, 1890, over eight years after the issue of the first sub-
pœna, alias process was issued against Bryan and service had; that
for seven years of this period he had resided in the District; that for
seven years he had been a citizen of Illinois as he still remained; that
by the law of Illinois the mortgagee may sue at law a grantee, who,
by the terms of an absolute conveyance from the mortgagor, assumes
the payment of the mortgage debt; that Christmas did not bring a
suit against Bryan in Illinois, nor was this bill filed during Bryan's
residence in the District, and when filed it was allowed to sleep for
years without issue of process to Bryan, and for five years after it had
been dismissed as to Wood's representatives, Wood having been made
defendant, by Christmas' ancillary administrator, as a necessary party;
that in the meantime Dixon had been discharged in bankruptcy and
had died; Palmer had also departed this life, leaving but little if any
estate; Wood had deceased, his estate been distributed, and any claim
against him had been barred; and the mortgaged property had dimin-
ished in value one half and had passed into the ownership of Christ-
mas' heirs: Held, (1) That the equitable jurisdiction of the court
ought not to be extended to enforce a covenant plainly not made for the
benefit of Christmas, and in respect of which he possessed no superior
equities; (2) That the changes which the lapse of time had wrought
in the value of the property and in the situation of the parties were
such as to render it inequitable to decree the relief sought as against
Bryan; (3) That, without regard to whether the barring in this juris-
diction of the remedy merely as against Wood would or would not in
itself defeat a decree against Bryan, the relief asked for was properly
refused. Ib.
1. Remedies are determined by the law of the forum; and, in the District
of Columbia the liability of a person by reason of his accepting a con-
veyance of real estate, subject to a mortgage which he is to assume
and pay, is subject to the limitation prescribed as to simple contracts,
and is barred by the application in equity, by analogy, of the bar of
the statute at law. Willard v. Wood, 502.
2. The covenant attempted to be enforced in this suit was entered into in
the District of Columbia, between residents thereof, and, although its
performance was required elsewhere, the liability for non-performance
was governed by the law of the obligee's domicil, operating to bar the
obligation, unless suspended by the absence of the obligor. Ib.
3. If a plaintiff mistakes his remedy, in the absence of any statutory pro-
vision saving his rights, or where from any cause a plaintiff becomes
nonsuit, or the action abates or is dismissed, and during the pendency
of the action the limitation runs, the remedy is barred. Ib.
See JURISDICTION, A, 7.
1. In Arkansas a conveyance of personal property of the grantor to the
grantee in trust accompanied by delivery, conditioned that, as the
grantor is indebted to several named persons in sums named, if he
shall within a time named pay off and discharge all that indebtedness
and interest, then the conveyance shall be void, otherwise the grantee
is to sell the property at public sale, after advertisement, and apply
the proceeds to the expenses of the trust, the payment of the debts
named, in the order named, and the surplus, if any, to the grantor, is,
under the decisions of the Supreme Court of that State, a deed of trust
in the nature of a mortgage. Grimes Dry Goods Co. v. Malcolm, 483.
2. The submission of special questions to the jury under the statute of
Arkansas is within the discretion of the court. Ib.
3. What the mortgagor in such an instrument said to a third party, after
execution and delivery, respecting his intent in executing the instru-
ment, is not admissible to affect the rights of the mortgagee. Ib.
4. All the evidence in the case being before this court, and it being clear
from it that the trial court would have been warranted in perempto-
rily instructing the jury to find for the defendant, the plaintiff suffered
no injury from the refusal of the court to permit the jury to retire
a second time. Ib.
District of Columbia.
New Mexico.
See TAX AND TAXATION, 3 to 10.
See LIMITATION, STATUTES of.
See JURISDICTION, D.
See MECHANIC'S LIEN.
MAILS, TRANSPORTATION OF.
1. For several years in succession before the commencement of this action
the Central Pacific Railroad Company transported the mails of the
United States on its roads. During the same period post office in-
spectors, commissioned by the department, under regulations which
required the railroads "to extend facilities of free travel" to them,
were also transported by the company over its roads. During all this
period the railroad company presented to the department its claim for
the transportation of the mail without setting up any claim for the
transportation of the inspectors, and the said claims for mail trans-
portation were, after such presentation, from time to time, and regu-
larly, adjusted and paid on that basis. This action was then brought
in the Court of Claims to recover for the transportation of the in-
spectors. Until it was commenced no claim for such transportation
had ever been made on the United States. Held, that, without decid-
ing whether the claim of the department that its inspectors were enti-
tled to free transportation was or was not well founded, the silence of
the company, and its acquiescence in the demand of the government
for such free transportation operated as a waiver of any such right of
action. Central Pacific Railroad Co. v. United States, 93.
2. The terms and conditions imposed on the grant under which the plain-
tiff in error holds embraced the condition that the mail should be
carried at such rates as Congress might fix; and § 13 of the act of
July 12, 1876, was applicable. Wisconsin Central Railroad Co. v.
United States, 190.
3. The Postmaster General, in directing payment of compensation for
mail transportation, does not act judicially. Ib.
The general power of this court to issue a writ of mandamus to an inferior
court is well settled; but, as a general rule, it only lies where there is
no other adequate remedy, and cannot be availed of as a writ of error.
In re Atlantic City Railroad, 633.
MARSHAL.
See FEES, 5, 6, 7, 8.
On the 16th of August, 1889, a statute was in force in the Territory of
Utah providing for the creation of mechanic's liens for work done or
materials furnished under contracts in making improvements upon
land; but, in order to enforce his lien a contractor was required,
within 60 days after completion of the contract, to file for record a
claim stating his demand, and describing the property to be subjected
to it; and no such lien was to be binding longer than 90 days after so
filing, unless proper proceedings were commenced within that time to
enforce it. On that day G. contracted with an irrigation company
to construct a canal for it in Utah. He began work upon it at once,
which was continued until completion, December 10, 1890. He
claimed, (and it was so established,) that, after crediting the com-
pany with sundry payments, there was still due him over $80,000, for
which amount he filed his statutory claim on the 23d day of the same
December. On the 1st day of October, 1889, the company mortgaged
its property then acquired, or to be subsequently acquired, to a trustee
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