The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-11-26


the only contract between the parties and carried
out without any attempt or oner 10 deliver ice ct
New Orleans On this state OF facts the Court OF
Claims found rs conclusions Of law that the &C.
ton OF Parish 20. In signing the secono
contract and performance under e was q =. =
waiver OF their rights under the contract as nIst
made, and that they were therefore not en-
titled 70 recover Appeal Is taken, the claimants
executed and approved by the surgeon General, II
was not within the power Of either party to annul
n without the consent OF the other Therefore when
the secretary OF War annulled the nrst contract
without the consent OF the plaintiffs, cause o.
action occurred for such breach; aud the only ques
for consideration Is whether the plaintiffs have
by any act OF thers waived such LIABILITY, and on
this point 1t Is insisted that the execution OF another
and dinerent contract IL waiver OF the Dreecl Of
. preexistIng contract, unless " was 50 agreed ~
the ue, and in this case, at the time Of executing
the second contract, the claimants expressly pro-
tested against the wrong attempted upon them ~
the Rnnulling OF the first contract ana &C the time
reserved their rights under the original contract ior
future redress The government maintains the view
OF the court below. Case submitted on the printed
arguments Of A. L. Merriman for claimants and OF
Mr.: Talbot for the government
No. l76. The United Syates Us Henry G. Smith ct
0L-CertLdcate or diustOn In 0plsiOn or the CtrcuH
court Jor the Northern District OF Oh,O.-Sult was
brought by the United States against the Defendants
IS principal and sureties upon coal OIL detiiiers
bond upon taking out ilcenseb given under the
requirements or the internal revenue laws IN may,
1896, and conditioned that tine principals should con-
70 y az Us %
ment and 70 pay interests on the pubic deDt" ap-
proved July /. 1894 and Of "sucn other ac0 g were
scsedS TSs was That Inn june 1861
pay certain taxes levied on large Quantities
sumption ~ them, which they refused 70 pay.
Upon the hearing the question arose whether the
principals and suretes were liable on the bond for
the fainre Of the former 70 pay the taxes after the
expiration Of their licenses which was the 1st Of
May, 1858. On this question The Court were divided
eminent. VINO alone appears here, submits that the
condition OF the bond being for the benefit OF the
0bgors, must be strictly performed TO relieve them
the failure pay taxes accrulng after the expira-
ton OF the licenses, the condition OF the bond not
being In terms restrained from extending 10
license. E. X. Hoar, Attorney General and w. A.
Field Assistant Attorney General, for the govern
No. Ell. Emily J. FLOR ana Wiuidm Pi,knev ct
al. vs. The United States. Appeal rom the court OF
Cgdfnas.-Thls suit was brought to recover rent at
1862 TO January l. 1867. for certain real estate and
personal property thereon In Key West, Fla, known
as "TltIs wharf," the contract to pay the rent was
signed by ]. y. Gl0bS, lieutenant Of artillery,
'actng assistant quartermaser OF the United States
Atmy.n This officer mad no special authority to
make the contract and 1t was never approved BY
the QuartermasLer General; but on the contrary, was
dsapproyed and the property placed on the return
Of "contscated properly lne government pro-
duced evidence 70 SHOW that tne claimants heid
~>.SN~J s~>S
rebel lines. Upon this evidence the petition was
dismissed, and appeal 10 TAKEN the claimant Insist
ing tnat The government, having quietly held the
premises under lease without making any dis
clalmer Of the landlords title or notice oil intention
to hold the property adversely 10 now estopped from
dlsputing putting in issue the title claimed. But
II the Court snail be Of Oplnion that tenant mag dis
pute his landlords title in an action 10 recover rent
then 1t Is commended that, as Key West was never
declared by President to be In insurrectOn, and
martal law had not been declared there the agent,
who. by power OF attorney dated at that place, was
authorized TO sell the property, could and did pass
valid Title to the purchasers il also urged that
reDel vender, having afLer the rebellion received
hull pardon from the President any title which the
purchasers received from MIN, which had not been
Invested before his PARDON thereafter become con-
irmed and valid as against ali and every per IN.
The government claims tnat this Ii . case growing
out Of the appropriation OF property by the army
engaged in the suppression Of the rebeillOn; and,
being SUCH the Court Of CLAIMS had no Jurisdiction.
But IN any case the mte o. ene es0s Deng o.
government to pay rent for the property would be
guilty Of q breach Of duty and his acts would bes
void. The deed from the vender 70 the petitioners,
IL Is submitted was void as contract between ene-i
miles, and it a insisted that In case like TINS the
rule Of law should be strictly enforced. Thomas
Wilson and N. p. Chapman for claimants; Z. X.
Hoar, Attorney General, for the government.
No. Y7s. The Peoples Passenger Rastro0d COM
BIS ana nss, ne Memphis Cttv RaoGd capaay
Error to the Supreme Court OF Tennessee.-Belore
the war the city OF Memphis by ordinance
railways, on certain terms, by an ASSOCIATION
OF persons who were subsequently in 1850,
nndsr the name Of the panss IN error and &C.
copied the terms and conditions OF the grant made
by the city and gave notice that they had procured
material, &C. for tine roads. Tnere being opposition
to the road on Main street by the property holders,
the City Council receded from the undertaking to
have the road constructed until two.tnlrds OF the
From this time forth all action IN the mat.
ter was suspended by the war, until
porated the Memphis City Railroad Company.
authorizing II TO contract with the city Of Memphis.
and to operate street railways on any or all Of the
streets or the city, and repealed the act lncOrp0rAt
ing the Peoples Passenger Railroad Company. The
Memphis CITY Railroad Company commenced to lay
tracks IN the city. and the Mayor and Aldermen IN.
terered to prevent the work. threatening TO use the
police force OF the city to stop is progress and there
upon the railroad company commenced this action
further interference and from granting 70 or con-
tracing with other parties for the construction OF
railroads ID the CITY, and praying also an Injunction
such ROADS IRON proceeding with Their construction
A preliminary Injunction was granted, and alter
me II 70
by leave OF the Court, was allowed 70 stand Tor
cross bill against The Memphis City Railroad Com
my and the Mayor and Aldermen. 10 TINS cross
DILL demurrer was interposed and the decree OF the
Memphis court upon the original bill and answers
and cross bill and demurrer5 being against the
piantfs in error the case was taken TO the supreme
Court OF the State where the decree was affirmed,
aud the case was thence brought here, the
plalntlf1s IN error insisting tnaJ the city
Of Memphis being BY It's charter empowered
10 regulate the laying OF railroads through the
city, aud by the general law TO grant privileges in
the use OF the streets,n and having grained to them
this franchise, their right are paramount and must
prevail. Inc defendants MAINTAIN that the city could
not vest individuals with the franchise IN question:
nor by contract with them deprive the Legislature
oil the power OF granting the franchise to Others.
ID. X. McRae, J. nj. Carlisle and J. d. McPherson,
Tor plaintiffs In error; Albert Pike and X. w. john
son, for defendants.
Tue following cases were argued to-day:-
the united States us. Henry G. De,cu.-Ccrtincate
OF decision between the Judges Of the Circuit Court
for the Eastern District OF Michigan. This case in
VOWED the question whether the provision OF toe
twenty-nn section OF the act OF March, 1857, ma
king 1t an offence to sell naphtha and illuminating
oils under less temperature than ITO degrees Fa-
rennelt, ID police regulation, and being such 10
Pitzer Muller, plafnttG IN error vs. Larktn McKen.
xte ct al The plaintiff sought to make the defend
ants liable for the seizure and destruction Of certain
cotton during the late war. The defence was that
the first named defendant was captain OF Southern
State troops ana the other defendants were MEM
bers OF his company, and that the act was committed
under orders OF The CT vernon OF HiSSlssippi Under