of which with a small exception she was carrying, was sailing off
Nantucket Shoals at a speed of seven knots an hour, in a fog so dense
that the hull of another vessel could not be seen more than a few
hundred feet off. The Chattahoochee, an American steamer, came up
at an angle in the opposite direction with a speed of ten or twelve
knots an hour. The schooner was sounding a foghorn, and the
steamer a steam whistle. When the steam whistle was heard on
the schooner she kept on her way at full speed. When the foghorn
was heard on the steamer, order was given and obeyed to stop and
reverse, and the wheel was put hard-a-port. Upon seeing the schooner
the steamship engines were put at full speed ahead, for the purpose
of clearing it; but a collision took place, and the schooner sank
almost immediately. The sunken vessel had a valuable cargo on
board. It was held below that both vessels were in fault for immod-
erate speed, and the District Court, ruling that the damages should
be divided, made a decree respecting such division which was modi-
fied by the Court of Appeals as hereafter stated. Held: (1) That
there can be no doubt as to the liability of the steamer, and, as no
appeal was taken on her part she is estopped from denying that lia-
bility here; (2) That the schooner, also, was proceeding at an im-
moderate speed, and was properly condemned therefor; and the cases
bearing upon the question of what is immoderate speed in a sailing
vessel, under such circumstances, are cited and reviewed; (3) That
the Court of Appeals did not err in deducting half the value of the
cargo from half the value of the sunken schooner, and in limiting a
recovery to the difference between these values; and in reaching
this conclusion the court cites and reviews several cases, in deciding
which the act known as the Harter Act has been considered and
applied. The Chattahoochee, 540.
The plaintiff in error, a Texas corporation, commenced an action, in a
court of Oklahoma, against the defendant in error, à Missouri corpo-
ration, and caused a writ of attachment to be issued and levied upon
five thousand head of cattle, claimed to be the property of the
Missouri corporation. After such levy, service was made upon one
Pierce as garnishee of the Missouri corporation. Pierce answered,
denying that he was indebted to or held property of that company,
and further set up an agreement under the provisions of which he
had shipped to the pastures of that company a large number of
cattle, the ownership to remain in him until full payment for the
cattle. The cattle levied upon were of this number. He also set
up a notice from one Stoddard of an assignment to him of the
contract by the Missouri company. He further set up that he was
entitled to the possession of the cattle, and asked that they should
be returned to him with damages. With the consent of both sides
Pierce was appointed receiver of the cattle, and then service was
made upon the Missouri corporation by publication, had in com-
pliance with requirements of law. Stoddard then filed an interplea,
setting up rights of other parties. This was demurred to, but no
action was had on the demurrer. The receiver sold the cattle, paid
himself in full and reported to the court that he had a balance in
his hands, subject to its order. Then the Missouri company filed
pleas to the jurisdiction of the court, and other pleas were filed,
setting up claims to the balance in the receiver's hands. The
Missouri company also set up that Pierce, by becoming receiver, had
abandoned his claim to the ownership of the cattle. The trial court
held that the territorial act, authorizing the probate judge, as to
debts not yet due, to order an attachment in the absence of the
district judge, was unconstitutional and void, and ordered the action
dismissed. The Supreme Court of the Territory held that the court
below was wrong in this respect, but affirmed its judgment on the
ground that an actual levy was necessary in order to give the court.
jurisdiction, and there had been none. The case being brought here,
the Missouri corporation set up that this court was without juris-
diction, because the intervenors in the trial court had not been made
parties to the appeal. Held: (1) That it was not necessary to make
the intervenors parties; (2) That property of the Missouri company
had been levied on under the writ of attachment, and that the decision
of the Supreme Court of the Territory to the contrary was wrong;
(3) That the Oklahoma statute, requiring an affidavit in its support,
as a prerequisite to the issuance of a writ of attachment, does not
involve the discharge of a judicial function, but is the performance
of a ministerial duty; (4) That the court acquired jurisdiction of
the defendant corporation by constructive service, by foreign attach-
ment, without its consent; (5) That the territorial statute, authorizing
the issue of a writ of attachment against the property of a non-resident
defendant, is not repugnant to the Fourteenth Amendment to the
Constitution. Central Loan & Trust Co. v. Campbell Commission Co., 84.
CASES AFFIRMED OR FOLLOWED.
See CLAIMS AGAINST THE UNITED
JURISDICTION, A, 4; C, 2;
MUNICIPAL BONDS, 2;
PUBLIC LAND, 8;
CLAIMS AGAINST THE UNITED STATES.
1. Claims for depredations on the Pottawatomie Indians committed by
Indians were properly allowed by the Secretary of the Interior under
the treaty of August 7, 1868, and are valid claims. United States v.
Navarre, 77.
2. There is nothing in this case to take it out of the settled rule that the
findings of the Court of Claims in an action at law determine all
matters of fact. Collier v. United States, 79.
3. Marks v. United States, 164 U. S. 297, followed to the point that when
a petition, filed in the Court of Claims, alleges that a depredation was
committed by an Indian or Indians belonging to a tribe in amity
with the United States it becomes the duty of that court to inquire
as to the truth of that allegation; and if it appears that the tribe, as
a tribe, was engaged in actual hostilities with the United States, the
judgment of the Court of Claims must be that the allegation of the
petition is not sustained, and that the claim is not one within its
province to adjudicate. Ib.
4. It was the manifest purpose of Congress, in the act of March 3, 1891,
c. 538; to empower the Court of Claims to receive and consider any
document on file in the Departments of the Government or in the
courts having a bearing upon any material question arising in the
consideration of any particular claim for compensation for Indian
depredation, the court to allow the documents such weight as they
were entitled to have. Ib.
5. In 1850 Price, a purser in the Navy and fiscal agent for that Depart-
ment, advanced $75,000 to the Government, from his private fortune,
to meet emergencies. His right to receive it back was questioned,
and was not settled until 1891, when Congress passed an act directing
the Secretary of the Treasury to adjust his account "on principles of
equity and justice," and to pay to him "or to his heirs " the sum found
due him on such adjustment. It was adjusted by the Secretary, and
in August, 1892, it was decided that there was due to Price from the
United States $76,204.08. Meanwhile Forrest had recovered in the
courts of New Jersey, of which Price was a citizen and resident, a
judgment against him for $17,000. Forrest died in 1860 without
having collected the amount of this judgment. In 1874 his widow,
having been appointed administratrix of his estate, caused the judg-
ment to be revived by writ of scire facias and asked for the appoint-
ment of a receiver. Price appeared and answered, and then the cause
slept until August, 1892, when Mrs. Forrest filed a petition, stating
that money was about to be paid to Price by the United States on
his claim, and asking for the appointment of a receiver of the
Treasury draft, and that Price be ordered to endorse it to the receiver,
to the end that the amount might be received by him as an officer of
the court and disposed of according to law. A receiver was appointed,
gave bond and entered on his duties. Price died in 1894. He left
no will. No letters of administration were granted, but the New
Jersey court appointed an administrator ad prosequendum. The bill
in this case was then filed. The relief sought was, the revival of the
bill of 1874, that the administrator ad prosequendum be made a party,
and that the other parties be enjoined from receiving the money from
the Treasury, and that the receiver be authorized to receive and dis-
pose of it under the orders of the court. The heirs of Price set up
their claims to it. The court held that the plaintiffs were entitled
to the moneys in the Treasury and its judgment was affirmed by the
highest court in the State. Held, that the receiver, and not the heir,
was the person entitled to recover the money from the United States;
and that the case did not come within the prohibitory provisions
against assignments of claims against the United States, contained
in Rev. Stat. § 3477. Price v. Forrest, 410.
6. Under the clause in the act of March 3, 1885, c. 341, regarding claims
"on behalf of citizens of the United States, on account of depredations
committed, chargeable against any tribe of Indians by reason of any
treaty between such tribe and the United States," no claim can be
received and considered by the Court of Claims which is presented on
behalf of a person who was not a citizen of the United States when
the act was passed, but who, a foreigner, had then duly declared his
intention to become such citizen, and did subsequently become such.
Yerke v. United States, 439.
The Texas and Pacific Railway Company received at Bonham, in Texas,
467 bales of cotton for transportation to Liverpool. It was to be
taken by the company over its road to New Orleans, and thence to
Liverpool by a steamship company, to which it was to be delivered
by the railway company at its wharf in New Orleans. Each bill of
lading contained the following, among other clauses: "The terms and
conditions hereof are understood and accepted by the owner, viz.:
(1) That the liability of the Texas and Pacific Railway Company, in
respect to said cotton, and under this contract, is limited to its own
line of railway, and will cease, and its part of this contract be fully
performed upon delivery of said cotton to its next connecting carrier;
and in case of any loss, detriment or damage done to or sustained by
said cotton before its arrival and delivery at its final destination,
whereby any legal liability is incurred by any carrier, that carrier
alone shall be held liable therefor in whose actual custody the cotton
shall be at the time of such damage, detriment or loss." The cotton
reached New Orleans in safety, and was unloaded at the wharf, and
the steamship company was notified; but before it was taken posses-
sion of by that company it was destroyed by fire at the wharf. The
owners in Liverpool having brought suit against the railway company
to recover the value of the cotton, that company, on the facts detailed
at length in the opinion of the court, contended that the cotton had
passed out of its possession into that of the steamship company; or, if
the court should hold otherwise, that its liability as common carrier
had ceased, and that it was only liable as a warehouseman. Held,
that the goods were still in the possession of the railway company at
the time of their destruction; and that that company was liable to
their owners for the full value as a common carrier, and not as a
warehouseman. Texas & Pacific Railway Co. v. Clayton, 348.
1. Section 12 of ordinance No. 10, of Eureka City, providing that “No
person shall move any building or frame of any building, into or upon
any of the public streets, lots or squares of the city, or cause. the same
to be upon, or otherwise to obstruct the free passage of the streets,
without the written permission of the mayor, or president of the city
council, or in their absence a councillor. A violation of this section
shall on conviction, subject the offender to a fine of not to exceed
twenty-five dollars," is not in conflict with the provisions of the Con-
stitution of the United States. Wilson v. Eureka City, 32.
2. The petitions for rehearing rest upon a misapprehension of the decision
in this case, the purport of which was to preserve to the Canal Com-
pany the use of the surplus waters created by the dam and the canal;
but, after they had flowed over the dam and through the sluices, and
had found their way into the unimproved bed of the stream, the rights
and disputes of the riparian owners must be determined by state
courts. Green Bay & Mississippi Canal Co. v. Patten Paper Co., 179.
3. While the state courts may legitimately take cognizance of contro
versies between riparian owners concerning the use and apportion-
ment of waters flowing in the non-navigable parts of the stream, they
cannot interfere, by mandatory injunction or otherwise, with the
control of the surplus water power incidentally created by the dam
and canal now owned and operated by the United States. Ib.
4. A resident in and citizen of Chicago in Illinois, was the owner of
certain lots in Des Moines in Iowa, which were assessed by the mu-
nicipal authorities in that place to an amount beyond their value, for
the purpose of paving the street upon which they abutted. The
statutes of Iowa authorized a personal judgment against the owner
in such cases. He filed a petition to have the assessment set aside;
to obtain an injunction against further proceedings for the sale of
the property; and to obtain a judgment that there was no personal
liability against him for the excess. This petition contained no
allegation attacking the validity of the assessment by reason of any
violation of the Federal Constitution, and there was nothing in the
record to raise such Federal right or claim beyond the mere allega-
tion in the petition that "the amount of said tax is greater than the
reasonable market value of said lots, whether considered singly or to-
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