railroad company had commenced the construction of its road; the second, on the 25th day of February, 1884, long after the Iowa legislature, which had authority under the act of 1864 to dispose of lands not earned, had declared the resumption by the state of the title to all lands patented to the state under the act of congress and not earned, and more than 15 years after the railroad company accepted the act of the state that conferred upon it the benefits of the grant.

In reference to this claim by the trustees in those mortgages,-assuming that they properly represent in this matter the holders of bonds, it is sufficient to say that the secretary of the interior was without authority to issue any patents to the state for the use and benefit of the railroad company, except for the 50 miles of road certified by the governor to have been constructed in the manner required by the act of congress. The trustees and all holders of bonds secured by the mortgages were bound to know the extent of the secretary's authority under the act of congress. The utmost that the trustees could claim is that the mortgages covered 100 sections for each 10 consecutive miles of road certified by the governor of the state to have been properly constructed. Lands to that extent have been received by the company. The 85,457.40 acres of which the lands in dispute were part, and which remained with the state after transferring to the company 322,412.81 acres of the 407,870.21 acres patented to the state for the use of the company, were not, and could not legally have been, covered by the mortgages.

Upon the grounds stated in this opinion, we adjudge that the decree below did not prejudice any right of the appellants, or of either of them, and it is therefore affirmed.

(159 U. S. 372)

CHICAGO, M. & ST. P. RY. CO. v. UNITED
STATES et al.
(October 21, 1895.)
No. 47.

PUBLIC LANDS-RAILROAD GRANT-FORFEITURE. 1. By Act Cong. May 12, 1864, lands were granted to the state of Iowa to aid in building two railroads, one from Sioux City to the Minresota state line, and another to intersect therewith, to the total amount of the alternate oddnumbered sections within the limit of 10 miles on each side of the railroad. In a proceeding between the two railroad companies it was decided that where the grants conflicted at the point of intersection of the roads each road took half the designated land. Held that, upon the failure of one or the companies to earn its moiety of the land at such point, it reverted to the United States, and that the other road had no title thereto. 46 Fed. 502, affirmed.

2. The fact that the state legislature conferred such forfeited land upon the other road could not affect the rights of the United States thereto, the act of congress giving the state no power to give to one company land granted to the other.

Appeal from the Circuit Court of the United States for the Northern District of Iowa. W. H. Norris, for appellant. J. M. Dickinson, Asst. Atty. Gen., for the United States. George B. Young, for appellee Sioux City & St. P. R. Co.

Mr. Justice HARLAN delivered the opinion of the court.

After the circuit court had announced its conclusions in the case of Sioux City & St. P. R. Co. v. U. S. (just decided) 16 Sup. Ct. 17, the Milwaukee Company obtained leave to intervene as a defendant, and by cross bill assert its right to the lands in Dickinson and O'Brien counties, originally patented to the state of Iowa for the use of the Sioux City & St. Paul Railroad Company, and within the conflicting place limits of the two roads, but which the state held, and never conveyed to that company, and which the court below found to be the property of the United States as against the Sioux City Company and the trustees in the mortgages executed by it.

Such a cross bill was filed before the entry in the court below of a final decree on the original bill, and the cause was left undetermined as to the claims asserted by the Milwaukee Company in its cross bill.

Benjamin Olson, Peter Anderson, and others, parties defendant in the original suit, intervened, with leave of the court, as defendants, and by a cross bill against the Milwaukee Company and the Sioux City Company asserted rights to portions of the lands in controversy; having settled, they alleged, on such lands, under the laws of the United States, between the years 1881 and 1887, and made valuable improvements thereon.

The United States answered the cross bill of the Milwaukee Company, and also filed an amended bill, in which it prayed that by final decree its title to the lands awarded to it by the original decree as against the Sioux City Company be established and quieted as against the Milwaukee Company.

The court below rendered a decree in favor of the United States on this amended bill, and dismissed the cross bill of the Milwaukee Company. 46 Fed. 502.

The cross bill of Olson and others was dismissed without prejudice. This was done because the pleadings presented no issue as between the settlers and the United States; the cross bill of the settlers being against the railroad companies only.

*We are of opinion that the appellant has* no reason, in law, to complain of the decree of the circuit court.

Although the act of May 12, 1864, would, if its title alone were consulted, furnish some slight ground for the contention that the object of the grant therein was to aid in the construction of "a railroad," its provisions plainly show that congress had in view two railroads,—one extending from Sioux City to

7

McGregor, by a named route, to a point of intersection, in the county of O'Brien, with the Sioux City road.

The grant was of every alternate section designated by odd numbers for 10 sections in width "on each side of said roads," and therefore for the benefit of the roads separately. As decided in the other case, no part of the lands granted in aid of the construction of one road could be applied in aid of the other road. The act is to be interpreted as if congress by one act made a grant to the state in aid of the construction of the Sioux City road on the route designated, and by another and separate act, passed at the same time, made a grant to the state in aid of the construction of the other road from South McGregor to a point of intersection with the Sioux City road.

It appeared in the original case, and appears in the present case made by the cross bill of the Milwaukee road,-and congress, in requiring an intersection of the two roads, must have anticipated such a condition of things, that because of the conflict between the two grants it was impossible to set apart for each road every alternate odd-numbered section for 10 sections in width on each side of every part of its located line. Consequently, in the suit brought against the Sioux City Company by the Milwaukee Company as the last successor to the McGregor Western Railroad Company, by a final decree framed pursuant to the directions given by this court in Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. 790, the lands within the conflicting lines were, prior to the institution of the present suit, partitioned between the two companies.

The claim of the Milwaukee Company now is that it is entitled, under the act of May 12, 1864, to the lands involved in the present controversy, although by the decree in Sioux City & St. Paul R. Co. v. Milwaukee & St. Paul Ry. Co., and which is conclusive between those companies, they have been withheld from it upon the specific ground that they were never granted by congress to aid in the construction of the McGregor or Milwaukee road, but were granted in aid of the construction of the Sioux City road, and for no other purpose. If, as matter of law and fact, these lands were never granted for the benefit of the Milwaukee road, but were granted in aid of the construction of the Sioux City road, and for no other purpose, they could never-consistently with the act of congress-have been used by the state for the benefit of the Milwaukee road. Sioux City & St. P. R. Co. v. U. S., 16 Sup. Ct. 17.

It is therefore of no concern to the Milwaukee Company, as the successor in right of the McGregor Company, what was done with them by the state, nor whether the United States legally reacquired title to them as against the Sioux City Company. It is in no

bill establishing the title of the United States as against the Sioux City Company, and it is estopped by the decree in the suit which it brought to make any claim whatever to these lands. If, as has been conclusively adjudged, the Milwaukee Company was without title or claim as against the Sioux City Company, no rights could subsequently acrue to it by reason of the decree declaring that these lands reverted to the United States by reason of the failure of the Sioux City Company and of the state to construct the road over the entire route from Sioux City to the Minnesota line. As these lands were set apart exclusively for the construction of the Sioux City road, no failure to construct that road by the state or by the corporation charged with the duty of building it could, in any case, without the assent of congress, justify their being applied in aid of the construction of another and distinct road.

The defendant rests its claim in part upon the act of the Iowa legislature of February 27, 1878, c. 21. By that act*the state resumed all lands and rights theretofore granted to the McGregor & Sioux City Railway Company, the immediate successor of the McGregor Western Railroad Company, and conferred upon the Chicago, Milwaukee & St. Paul Railway Company (which succeeded in right the McGregor & Sioux City Railway Company) "all lands and rights of lands, whether in severalty, jointly, or in common, and including all lands or rights to lands or any interest therein or claims thereto, whether certified or not, embraced within the overlapping or conflicting limits of the two grants or roads made and described by the act of congress hereinafter designated [the act of May 12, 1864] granted to the state of Iowa to aid in the construction of a raflroad" from South McGregor to intersect with the road from Sioux City to the Minnesota line. It is contended that when it became certain that the Sioux City Company had, by failure to construct its road within the time specified by the act of congress, lost its right to the lands, the state, to which they had been patented specifically for the use and benefit of the Sioux City road, could pass to the Chicago, Milwaukee & St. Paul Company the title to any lands within the overlapping limits that had not been, and could not or would not be, applied to the Sioux City road.

This position cannot be sustained upon any theory that would be consistent with the act of congress. As we have already said in Sioux City & St. P. R. Co. v. U. S., 16 Sup. Ct. 17, the grant of an equal undivided moiety of lands in the overlapping limits of two roads was a grant for the benefit of each road of the particular moiety of lands dedicated by the act of congress to its construction. Neither road could get the benefit of the moiety of lands granted for the building of the other road by reason of the failure of

the company constructing the latter road to earn its moiety of the lands. This results from the explicit declaration by congress of the purposes for which the lands were to be used, and by express words excluding all others. The provision that the lands "hereby granted shall be disposed of by said state for the purposes aforesaid only" precludes the ⚫ idea that the state could, without a breach of trust, apply lands for the benefit of one road that had been granted to aid the construction of another road.

Besides, it is manifest from the face of the act of the Iowa legislature of 1878 that there was no purpose to give the Milwaukee or McGregor road the benefit of any lands not granted to aid in its construction; for the language of that act was that: "When said railroad [the McGregor road] shall have been built and constructed to the point of connection with the Sioux City and St. Paul Railroad, then and thereupon the governor of this state shall patent and transfer to said Chicago, Milwaukee and St. Paul Railway Company all the remaining lands belonging to or embraced in said grant appertaining to their line of railroad, including all or any part or moiety of the lands in said overlapping limits which, by the terms of said act of congress, appertain to their line of road." tion 3.

Sec

for the benefit of the Sioux City Company were certificates showing the construction by it of 50 miles, or five sections of 10 consecutive miles each; that, in 1872 and 1873 the secretary of the interior caused to be issued patents to the state for 407,870.21 acres, of which 322,412.81 acres were certified by the state to the company, the state retaining within its control 85,457.40 acres; that of the 322,412.81 acres 41,687.52 acres were awarded to the Milwaukee Company, as successor in right of the McGre gor Western Railroad Company, leaving with the Sioux City 280,725.29 acres that it has disposed of, and about which no question is here made; that out of the 85,457.40 acres 37,747.89 acres were awarded to the Milwaukee Company; and that of the 85,457.40 acres 21,692.38 acres were those in dispute in Sioux City & St. P. R. Co. v. U. S., and 26,017.33 acres were formally relinquished and conveyed by the governor of Iowa, pursuant to the act of the Iowa legislature of March 27, 1884 (Laws Iowa 1884, c. 71, p. 78; Laws Iowa 1882, c. 107, p. 102).

After this conveyance by the governor of Iowa, the question as to the disposition of these 26,017.33 acres came up for consideration in the department of the interior. Upon the hearing of this question, Secretary Lamar said: "The certification by the governor under this act was not made without an effort on the part of the railroad to prevent it. He was enjoined by the company, but the injunction was dissolved, and the certification followed. The company is still opposing reassertion of title by the United States, and is now here, by its president and by counsel, claiming, in effect, that the grant for the benefit of the company was one of quantity, and not lands in place; and that, therefore, the company has earned the lands in question, notwithstanding they are outside of the fiftymile terminal limits." The conclusion of the secretary is thus stated: "I must conclude, after a careful examination of the matter as presented, that neither the state of Iowa nor the Sioux City and St. Paul Railroad Company ever had any title under the granting act of 1864 to the lands in question beyond the prima facie legal title which would appear from the face of the patents, which, so far as these lands are concerned, were improperly and illegally issued. This title, such as it was, had gone no further than the state, for it had not patented or certified the lands in question to the company. The state having relinquished and reconveyed to the United States such title as it had, I have no hesitation in concurring in your recommendation that the lands so certified and conveyed be restored to entry under the settlement laws of the United States. You will therefore treat them as public lands, and they will be thrown open to settlement and entry, as are other public lands of the United States." 6 Dec. Dep. Int. 47, 53.

By an order of the interior department made

August 4, 1887, these 26,017.33 acres were restored to entry under the pre-emption, homestead, and timber culture laws of the United States. Entries were made September 12, 1887, as follows: By defendants in error Lewis Countryman and Adam Phillips, respectively, under the homestead laws; and by defendants in error Washington Royer and Basil D. Battin, respectively, under the pre-emption laws.

The railroad company brought separate actions of ejectment in the district court of Woodbury county, Iowa, against these persons, in which it asserted title to the lands so entered by the respective defendants. By stipulation of the parties the four cases were heard and determined together. Judgment in each case was rendered for the defendant, and upon error to the supreme court of Iowa each judgment was affirmed. 49 N. W. 72.

For the reasons stated in the opinion in Sioux City & St. P. R. Co. v. U. S. (just decided), it must be held that the railroad company did not have, at the time those actions were instituted, any interest whatever in the 26,017.33 acres, or any of them, certified back to the United States by the governor of Iowa pursuant to a statute of that state. It had previously received its full complement of public lands under the act of May 12, 1864, on account of road certified by the governor of the state as having been constructed in accordance with the requirements of that act. The judgment in each case is affirmed.

(159 U. S. 100)

BROWN v. UNITED STATES.
(June 3, 1895.)
No. 863.

HOMICIDE-Murder and MANSLAUGHTER-RESIST-
ING ARREST-INSTRUCTIONS.

Defendant was tried for murder, in killing one of two persons who attempted to arrest him without a warrant, and when there was no charge against him, probably mistaking

him for another. The court, at defendant's request, charged that if such were the case, and the killing was done while resisting such arrest, it would be, not murder, but manslaughter, but added that if the killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose, it would still be murder. Hdd, that the modification was erroneous, as permitting the jury to return a verdict of guilty of murder merely because of the manner of the killing, even if they believed that otherwise the case was one of manslaughter only, whereas the proper inquiry was whether, at the time of the shooting, such circumstances were present, taking them all together,-including the mode of killing.-as made it a case of manslaughter, and not of murder. Mr. Justice Brewer and Mr. Justice Brown dissenting.

In Error to the Circuit Court of the United States for the Western District of Arkansas.

Wm. M. Cravens, for plaintiff in error. Asst. Atty. Gen. Whitney and Wm. H. Pope, for the United States.

* Mr. Justice HARLAN delivered the opinion of the court.

This was an indictment, in which the defendant, a white man and not an Indian, was charged in one count with the crime of having killed and murdered, on the 8th day of December, 1891, at the Cherokee Nation, in the Indian country, and within the Western district of Arkansas, one Josiah Poorboy; in another count, with having killed and murdered on the same day, and in the same nation, county, and district, one Thomas Whitehead.

The accused was convicted of the crimes charged, and sentenced to be hanged. Upon writ of error to this court the judgment was reversed, and the cause was remanded, with directions to grant a new trial. The grounds of that reversal are set forth in the opinion of Mr. Justice Jackson in Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37.

At a second trial, Brown was again found guilty on each count. A motion for a new trial having been made and overruled, the accused was sentenced, on the second count, to suffer the punishment of death by hanging, but the sentence on the first count was postponed "to await the result of the judgment against him for killing Whitehead."

This writ of error brings up for review the judgment last rendered.

It appeared in evidence on the last trial, as on the first one, that Poorboy and Whitehead were in search of James Craig and Waco Hampton for the purpose of arresting them. Previous to that time, Craig had been arrested by a deputy marshal, Charles Lamb, upon a charge of adultery, and had escaped from the custody of that officer. Lamb testified that he had verbally authorized Poorboy to arrest Craig. It seems, also, that Hampton was under indictment, and there was a warrant for his arrest in the hands of Deputy Marshal Bonner.

The shooting occurred in a public road along which Hampton, Roach, and Brown were riding (the latter riding behind Roach, on the same horse), about 9 or 10 o'clock at night, when an effort was made by Poorboy and Whitehead to arrest Hampton and Brown. There was evidence tending to show *that Brown (who at the time of the killing was 19 years of age) was supposed by Poorboy and Whitehead, in the darkness of the evening, to be Craig. There is considerable conflict in the evidence as to what occurred at the time the shooting took place, but it is reasonably certain that Brown shot and killed either Whitehead or Poorboy after he and Roach were compelled to dismount from their horse.

After the court had completed its charge to the jury, the accused made two requests for instructions, which were given with certain modifications, but the giving of them was accompanied with the admonition that the principles of law then announced were

*101

to be taken in connection with what had been previously said by the court.

The first of the instructions asked by the accused was as follows: "The evidence in this case shows that the deceased, Poorboy and Whitehead, were not officers, but were acting as private citizens,-private individuals, without any warrant for Brown, and having no charge against Brown. There fore, if unintentionally, or by mistake, believing him to be somebody else, they undertook to arrest the defendant, and the defendant resisted such arrest, and, in such resistance, killed the deceased, or killed the parties attempting such arrest, such killing would not be murder, but would be manslaughter." The court gave this instruction with this modification: "Unless such killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose. If it was done in that way, then it would still be murder."

There was some evidence before the jury which, if credited, would have justified a verdict against the defendant for manslaughter only. Upon that evidence, doubtless, was based the above instruction asked by the defendant. If, in resisting arrest, he showed such brutality and barbarity as indicated, in connection with other circumstances, that he did not shoot simply to avoid being wrongfully arrested, but in execution of a wicked or malignant purpose to take life unnecessarily, or pursuant to some previous understanding with Hampton that he I would assist in the killing of Whitehead and Poorboy, or either of them, the court should have so modified the defendant's instruction as to express that idea. But the jury might well have inferred, from the instruction, as modified, that they were at liberty to return a verdict of murder because alone of the way or mode in which the killing was done, even if they believed that, apart from the way in which the life of the deceased was taken, the facts made a case of manslaughter, not of murder. We do not think that a verdict of guilty of manslaughter or murder should have turned alone upon an inquiry as to the way in which the killing was done. The inquiry, rather, should have been whether, at the moment the defendant shot, there were present such circumstances, taking all of them into consideration, including the mode of killing, as made the taking of the life of the deceased manslaughter, and not murder.

Because of the error above indicated, and without considering other questions presented by the assignments of error, the judgment is reversed and the cause remanded, with directions to set aside the judgment, as well as the verdict, upon each count of the indictment, and grant a new trial. Reversed.

Mr. Justice BREWER and Mr. Justice BROWN dissented.

(159 U. S. 293)

DR. S. A. RICHMOND NERVINE CO. v. RICHMOND.

(October 21, 1895.) No. 59.

TRADE-MARKS-ASSIGNMENT-CORPORATIONS.

1. The inventor of a proprietary medicine organized a corporation, to which he conveyed the property therein, together with the trademark previously used by him in connection with it. He was made general manager of the company, with a salary, and, after operating the business for some time, devised a new trademark, consisting of a portrait of himself, surrounded by four hemispheres, in connection with his own name. This was adopted by the corporation, and engravings of it made, and a large number of cartoons and wrappers purchased. Bottles were also ordered, having the trademark blown in them. These were all paid for with the company's funds, and charged to its expense account. Circulars were sent out to the trade, giving notice of the change, and stating that it would go into effect on the 1st of May following. On the 13th of May the corporation made an assignment for the benefit of creditors. Held, that at that time, although no formal assignment of the trade-mark had been made to the corporation by the designer, it was nevertheless the owner thereof, and the property in the same passed to the assignee, and to a subsequent purchaser from him.

2. The fact that a trade-mark bears the owner's name and portrait does not render it unassignable.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

This was a bill in equity filed by the Dr. S. A. Richmond Nervine Company, a Missouri corporation, against Samuel A. Richmond, the founder of the corporation, and a citizen of Illinois, to enjoin the use of a certain trade-mark, and to recover damages and profits for the unlawful use of the same.

The facts of the case were substantially as follows: The defendant Richmond, prior to December, 1877, being engaged at St. Joseph, Mo., in the business of making and selling a preparation known as "Samaritan Nervine," a medicine for the relief of epileptic fits and similar diseases,-adopted as a trade-mark the figure of a man, in an epilectic fit, falling backwards, with his arms extended, and his cane and hat dropping to the ground, with the word "trade" printed in small capitals on the right side of the figure, and the word "mark" printed in small capitals on the left side. This trade-mark was duly registered in the patent office, March 26, 1878, and was imprinted upon the wrappers which inclosed the bottles in which the medicine was sold, and was used from the day of its adoption, in 1873 or 1874, continuously, until a change in the size and character of the bottle and trademark was made, in the spring of 1884. Dr. Richmond met with considerable success in the sale of his medicine, and was reasonably prosperous until just prior to 1882, when he became embarrassed and unable to pay his debts, the result of engaging in an hotel ven ture in St. Joseph, which proved disastrous.