new regiment. Consequently when that regiment was discharged because its term of enlistment had expired, he was out of service. When the new regiment was raised the Governor and Council of Virginia were authorized by Congress to appoint its officers out of those in the Virginia line who were then supernumerary. Although it is said in one of the additional findings, that Dr. Taylor was "assigned to active duty," this is to be construed in connection with the resolution to which reference is made, and that being done it is apparent there was no intention by that language to modify the previous finding that "he was appointed surgeon's mate of the regiment of guards authorized by the resolution of January 9, 1779, of the Continental Congress." By the resolution Congress permitted the supernumerary officers in the line to accept appointments in the new regiment. Such an acceptance took them out of their former position in the line and put them into the new organization. The judgment of the Court of Claims is affirmed. Mr. P. E. Dye for appellant. Mr. Attorney General, Mr. Solicitor General and Mr. Assistant Attorney General Smith for appellee. NORTH v. McDONALD. ERROR TO THE SUPREME COURT OF THE TERRITORY OF WYOMING. No. 41. Submitted November 4, 1879. Decided November 10, 1879. On the case made by the pleadings the court will not disturb the judgment below. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The plaintiffs below evidently intended to bring this action under sec. 5129 of the Revised Statutes, but the averments in their petition are only sufficient to make a case under sec. 5046. While the court would certainly have been justified in leaving the question of fraud to the jury upon the evidence as it stood, we think, if a judgment had been rendered against the defendants, it might with propriety have been set aside as being contrary to what had been proven. For this reason, although it might have. been more in accordance with correct practice not to take the case from the jury, we will not disturb the judgment. No request was made for leave to amend the petition, and we must consider the case here as made by the pleadings, and not as the parties may have intended to make it. The judgment is affirmed. Mr. C. W. Bramel and Mr. W. W. Corlett for plaintiffs in error. Mr. Edward P. Johnson for defendants in error. LAMMERS v. NISSEN. ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA. No. 72. Argued and submitted November 17, 1879.- Decided November 24, 1879. When the District Court in a State has given a judgment which involves the finding of a fact in dispute, and that judgment is affirmed by the Supreme Court of the State, this court will not disturb the judgment of the latter unless the error be clear. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The only question in this case is whether as a matter of fact, when Lammers, the plaintiff in error, purchased from the United States, lot 1, sec. 12, T. 33, R. 1, Dakota City land district, there was in front and outside of the meandered line of the lot any land that could be cultivated, or that bore trees of value, or grass sufficient for grazing purposes. There is no dispute between the parties as to the law. The District Court of Cedar County found there was such land and this finding has been affirmed by the Supreme Court of Nebraska on appeal. Under such circumstances we ought not to disturb the judgment of the state court unless the error is clear. No less stringent rule should be applied in cases of this kind than that which formerly governed in admiralty appeals, when two courts had found in the same way, on a question of fact. After a careful examination of the evidence, we are satisfied with the result reached by the court below, and the judgment is, consequently, Affirmed. Mr. M. H. Carpenter, Mr. S. W. Packard, Mr. James Coleman, and Mr. G. C. Moody for plaintiff in error. Mr. B. F. Grafton and Mr. H. E. Paine for defendants in error. WOOLFOLK v. NISBET. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. No. 73. Argued November 17-18, 1879. Decided December 1, 1879. On the facts it is held that the conveyance which is the subject of dispute in this suit was fraudulent under the bankrupt laws. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. After full consideration of all the evidence in this case we are satisfied 1. That James H. Woolfolk was insolvent when he made the conveyance to Sowell C. Woolfolk, which is complained of; 2. That Sowell C. Woolfolk had reasonable cause to believe such insolvency when he received the conveyance; and 3. That the conveyance was made with a view to defeat the object and operation of the bankrupt law. There is no dispute about the law applicable to this state of facts, and as we deem it unnecessary to discuss the evidence in detail, no further opinion will be delivered. The decree of the Circuit Court is Mr. Clifford Anderson for appellants. Mr. R. F. Lyon for appellee. FOLLANSBEE v. BALLARD PAVING CO. Affirmed. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 102. Argued December 10 and 11, 1879. - Decided December 15, 1879. The decree from which this appeal was taken was not a final decree. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The motion to dismiss this appeal is granted. The decree appealed from is not a final decree. The amount due from the appellant has not been ascertained. Dismissed. Mr. William A. Cook and Mr. J. H. Bradley for appellant. PONDER v. DELAUNEY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. No. 204. Argued March 16, 1880. Decided March 29, 1880. This case presents only a question of fact, which was properly decided in the court below. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This case presents only a question of fact which we are satisfied was decided right in the court below. There is no sufficient evidence to set aside the settlement between the parties as expressed in the receipt in full executed when the sum agreed on was paid. As that is the only matter in dispute the decree is Affirmed. Mr. R. J. Moses for appellant. Mr. Charles N. West and Mr. William Reynolds for appellees. FONTAINE v. MCNAB. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. The court finds the disputed facts in favor of the appellee, and enters a decree accordingly. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. From the evidence in this case we find: 1. That the trust deed from Flewellyn to Shorter was duly executed and delivered. Under the ruling of the Supreme Court of Georgia in Dinkins v. Moore, 17 Ga. 62, there was sufficient proof of delivery to authorize the record. 2. That the deed, when executed and delivered, had upon it internal revenue stamps to the amount of thirty dollars, which was all that was required. 3. That the deed, including the stamp, was properly recorded, March 15, 1867. And 4. That at the time of the advertisement for sale under the trust deed there was no newspaper published in Quitman County, and that the Cuthbert Appeal had a general circulation in that county. There is no dispute but that upon this state of facts the decree below must be affirmed, and it is consequently so ordered. Affirmed. Mr. R. J. Moses for appellant. Mr. A. R. Lawton for appellee. UNITED STATES v. WILLIAMS. APPEAL FROM THE COURT OF CLAIMS. No. 216. Argued December 23, 1879. — Decided January 5, 1880. The judgment of the court below is affirmed on the case presented to this court. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. We are satisfied with the judgment below. The points raised and considered below have not been presented here, and that raised and argued here does not seem to have been presented there. We think upon the facts found it sufficiently appears that the terms and conditions of the promised reward were complied with, and that the claimant was entitled to recover what was offered for the services he rendered. Judgment affirmed. Mr. Attorney General for appellant. Mr. O. S. Lovell and Mr. Lewis Abraham for appellee. GRAND TRUNK RAILWAY COMPANY v. WALKER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MAINE. No. 219. Submitted March 23, 1880.- Decided April 5, 1880. A railroad company which runs its line by telegraph, is bound to have a suitable telegraph line, with a proper number of operators, and in case of an accident it is for the jury to decide whether their duty in this respect has been performed. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. Although much and probably all the testimony in this case is embodied in the bill of exceptions, the only exception taken below was to the following instruction to the jury: "The defendants, if they undertook to manage and conduct the business of running their trains by telegraph, were bound to have a proper and fit telegraph line for this purpose, with a reasonable number of telegraph stations and operators to properly conduct and control the movements of the trains. And it is for the jury to decide whether this duty was performed by the defendants or whether they were guilty of negligence and want of ordinary care in this respect by not having the requisite number of telegraph stations and operators for conducting the business of the road. If they were guilty of such negligence and want of care and thus occasioned the injury which otherwise would not have occurred, then the jury would be authorized to find a verdict for plaintiff.” We see no error in this instruction as an abstract principle of law, and no complaint is made of it here on that account. The whole effort on the part of the plaintiff in error has been to show that upon the evidence the verdict ought to have been in its favor. That question we cannot consider. The instruction was right, and certainly not so far inapplicable to the allegation in the writ as to justify a reversal of the judgment on that account. Mr. John Rand for plaintiff in error. The judgment is affirmed. |