See "Limitation of Actions"; "Removal of See "Principal and Agent." Causes."
For infringement of patent, see "Patents for In- ventions."
Particular actions, see "Deceit"; "Specific Per- formance."
Adequate Remedy at Law. See "Equity."
See, also, "Collision"; "Demurrage"; "Marine Insurance"; "Maritime Liens"; "Salvage"; "Shipping"; "Wharves."
Aliens held in custody for deportation under the contract labor laws, by virtue of a warrant of the secretary of the treasury which does not contain their names, or any names idem sonans, may be discharged on writ of habeas corpus.- United States v. Amor (C. C. A.) 885.
Immigrants held in custody under a warrant of the secretary of the treasury, for the purpose rival here, under the contract labor laws, can- of deportation, within one year from their ar- not be released by writ of habeas corpus.-Unit- ed States v. Arteago (C. C. A.) 883.
Sickness of a party, unexpectedly preventing his attendance at the hearing or advising with his proctor, is sufficient reason for permitting him to take evidence pending an appeal.-The See "Courts." Glide (C. C. A.) 719; Hudson v. Grafflin, Id.
Where, in defense of a libel by a pilot to re-
cover fees from a vessel which had rejected his See "Patents for Inventions." services, it was pleaded that libelant, after sig- naling an offer of services, hauled down the signal, and sailed away, thus preventing the ship from taking him, held that, on failure of the evidence to sustain this claim, respondent was not entitled to prove that other pilots also offered their services at the same time, and that the vessel would have been subjected to serious inconvenience in order to take libelant.-Mar- shall v. The Earnwell (D. C.) 228.
ADVERSE POSSESSION.
Under the Tennessee statute of adverse pos- session, disabilities cannot be cumulated.-East Tennessee Iron & Coal Co. v. Wiggin (C. C. A.)
Costs on appeal, see "Costs." In admiralty, see "Admiralty."
Where the judgment on a mandate of an ap- pellate court does not conform to such mandate, or determines questions not covered thereby, it is subject to review by appeal or writ of error. -Metcalf v. City of Watertown (C. C. A.) 859.
An order made by a district judge, in vaca- amending section 7 of the act of March 3, 1891 tion, before the act of February 18, 1895, (26 Stat. 826, c. 517), went into effect, which dissolves a temporary restraining order, made on an intervening petition, is not appealable.- Denver & R. G. R. Co. v. Walker (C. C. A.) 23. livery under the North Carolina Code, directing An order, made in an action of claim and de- certain chattels, which have been taken by the marshal from the possession of a sheriff, upon a requisition to replevy them, to be returned to (1025)
A void grant of land from the state and a void sheriff's deed are both sufficient color of title under the Tennessee statute.-East Tennes- see Iron & Coal Co. v. Wiggin (C. C. A.) 446. Under the Tennessee statutes (Mill. & V. Code, §§ 3459-3461), adverse possession, with col- v.68F.-65
such sheriff, is not a final order, and is not re- viewable.-Porter v. Davidson (C. C. A.) 257.
A claim that a verdict in an action of eject- ment includes lands not claimed in the declara- tion, such claim having been presented on a mo- tion for a new trial, does not present a question reviewable on error.-Robinson v. Dewhurst (C. C. A.) 336.
Rule 13 of the circuit courts of appeals (11 C. C. A. ciii.) does not apply to bonds where no supersedeas is asked or granted. Wheeling Bridge & Terminal Ry. Co. v. Cochran (C. C. A.) 141.
An assignment of errors made up by basing an assignment on every exception taken is equivalent to a general assignment.-Florida Cent. & P. R. Co. v. Bucki (C. C. A.) 864.
Under rule 11 of the circuit court of appeals for the Fifth circuit, an assignment of error which merely alleges error in making certain decrees is insufficient, and will be stricken out on motion. Florida Cent. & P. R. Co. v. Cut- ting (C. C. A.) 586.
Where a court trying a case without a jury makes a general finding, no errors in giving or refusing instructions, asked to control such finding, can be reviewed on error.- Board of Com'rs of Kearney County v. McMaster (C. C.
An appellate court having expressed the opin- ion that a special master's allowance appeared on the face of the record to be excessive, the matter was heard again in the lower court be- fore a master, and the special master testified to the value of his services. The contestants, however, offered no evidence as to the character or amount of service. Held, that on subsequent appeal a somewhat reduced allowance made be- low will not be disturbed.-Florida Cent. & P. R. Co. v. Cutting (C. C. A.) 586.
Findings of fact by the trial court upon con- flicting evidence will not be reversed unless clearly in conflict with the preponderance of the evidence.-Latta v. Granger (C. C. A.) 69.
One H. leased from plaintiff a lot in the Hot
A petition for removal, expressed to be made by attorneys appearing for that purpose only, is not a general appearance.-Kinne v. Lant (C. C.) 436.
The objection that a suit between citizens of different states is brought in the wrong district is waived by a general appearance, and is not raised by a demurrer after such appearance.- Noonan v. Delaware, L. & W. R. Co. (C. C.) 1.
One who intervenes in a pending suit to pro- tect a supposed interest cannot avoid the effect of a judgment against him, by limiting his ap- pearance and disclaiming an intention to become a party to the suit.-Frank v. Wedderin (C. C. A.) 818.
The objection that a suit in the circuit court, when the jurisdiction depends upon the citizen- ship of the parties, is not brought in the district where either the plaintiff or the defendant re- sides, is waived by a general appearance or pleading to the merits, and the court can proceed to hear and determine the cause.-Hoover & Allen Co. v. Columbia Straw-Paper Co. (C. C.) 945.
For patent, see "Patents for Inventions."
ARBITRATION AND AWARD.
In Virginia no relief against an award made pursuant to a submission in pais can be ob- tained except in equity; and, when the amount of loss under an insurance policy has been fixed by an award, no evidence of greater loss, or that the arbitrators were not competent, can be received, in an action on the policy.-Robertson v. Scottish Union & National Ins. Co. (C. C.) 173.
Assignment.
Of errors, see "Appeal."
Assignment for Benefit of Cred- itors.
Springs reservation, Ark., but was subsequent- ly ousted by the United States under claim of superior title. He then leased the lot from the United States, and afterwards purchased it, ac- cording to an award made by the commissioners appointed to adjust conflicting land claims in the reservation. Act March 3, 1877 (19 Stat. 377). Afterwards plaintiff obtained a decree See "Master and Servant.” against H.'s grantees, declaring that they held the title in trust for him, and requiring con- veyance thereof. On appeal, the supreme court confirmed plaintiff's title, but reversed the de- cree because the account of rents and profits had not been properly stated, saying, in sub- stance, that rents and profits should not be al- lowed prior to the commencement of the suit, and that no increased rent should be allowed on account of improvements. Held, that this decree merely directed the circuit court to ascer- tain the fair rental value, and plaintiff was not entitled to have the rents measured by the terms of the original lease from him to H.-Latta v. Granger (C. C. A.) 69.
There is no inconsistency in alleging in an affidavit for attachment that defendants have disposed of their property, and that they are about to dispose of the same, for the word "property," as used in statutes enumerating the grounds of attachment, does not mean all of defendant's property.-Salmon v. Mills (C. C. A.) 180.
See "Arbitration and Award."
There was no law or public policy in Missis- sippi in 1886 to prevent a foreign ecclesiastical corporation from taking a devise to charitable uses.-White v. Keller (C. C. A.) 796.
BANKS AND BANKING. Where money is paid to a national bank on account of a subscription to a proposed increase of stock, to be held in trust till the subscription is fully paid and the increased stock legally is- sued, and before the increase has been fully paid or the comptroller has issued a certificate declar- See "Shipping." ing the increase, the bank becomes insolvent, and passes into the hands of a receiver, the person paying such money does not become a stockholder of the bank.-McFarlin v. First Nat. Bank of Kansas City (C. C. A.) 868.
See, also, "Indemnity."
Of city, see "Municipal Corporations." Of guardian, see "Guardian and Ward." On appeal, see "Appeal."
Where a bond is given conditioned that one
The right of a Chinaman to readmission to the United States because he had been engaged as a merchant therein is governed by Act Nov. 3, 1893, though he departed from the country_be- fore that act was passed.-United States v. Loo Way (D. C.) 475.
Act Sept. 13, 1888, § 12, having been enacted subject to ratification of a treaty with China which was never ratified, is of no effect; and the right of a Chinese to enter the United States may be tried in proceedings of arrest, though the collector has decided that he was entitled to enter.-United States v. Loo Way (D. C.) 475. Circuit Court of Appeals.
As ground for removal of cause, see "Removal of Causes."
who has proposed to furnish the government As affecting federal jurisdiction, see "Courts." three separate kinds of supplies shall not with- draw his proposal, and shall execute a contract if it is accepted, it is no breach of the condition that such person fails to execute a contract to furnish only one of such kinds of supplies, his proposal for which alone is accepted.-United See "Municipal Corporations." States v. McAleer (C. C. A.) 146.
Boundaries.
Evidence of, see "Evidence."
Of patent, see "Patents for Inventions."
See "Railroad Companies"; "Shipping."
In an action against the United States under the act of March 3, 1887, where the facts are undisputed, a written opinion, substantially find- ing the facts, and giving judgment, is sufficient, though there is no separate statement of facts found and conclusions of law.-United States v. Tinsley (C. C. A.) 433.
Classification.
Of imports, see "Customs Duties."
A patentee made an assignment of his patent, upon an agreement that the assignee should On judgment, see "Judgment." prosecute suits against infringers at his own expense, and divide the recovery with the pat- entee. Held, that such agreement constituted champerty.-Keiper v. Miller (C. C.) 627.
row channels, applies to navigable coast waters | the flood tide, ordered one to "single out," so as communicating directly with the ocean, as in the case of the Elizabeth river, leading to Nor- folk harbor.-The Plymothean (C. C. A.) 395; Canton Ins. Co. v. Claimants of The Victory, Id.; Claimants of The Victory v. Canton Ins. Co. Id.
Steamships colliding in Elizabeth river held both in fault, one especially for keeping to the port side of the channel in violation of interna- tional rule 21, and both for obstinately pursuing their courses until collision became inevitable. The Plymothean (C. C. A.) 395; Canton Ins. Co. v. Claimants of The Victory, Id.; Claim- ants of The Victory v. Canton Ins. Co., Id. Only a dire emergency will excuse a steamer navigating a harbor from complying with rule 16, which requires her to keep out of the way of another steamer with which she is on crossing courses, when the latter is on her starboard hand.-Norfolk & C. R. Co. v. The City of Ches- ter (D. C.) 574.
The fact that a steam ferryboat colliding with a tug was about to make her slip after crossing the East river held a special circumstance quali- fying the rule requiring her, as the favored ves- sel, to maintain her speed.-The Dakota (C. C. A.) 507; Walsh v. Brooklyn & N. Y. Ferry Co., Id.
Between steamers and sailing vessels. Where a schooner and a steamer, approaching on nearly opposite courses, about head and head, collided, on a clear night, after both sheering in the same direction, and nearly at the same time, held, that both were in fault, the steamer for inattention and bad lookout, and for not taking timely measures to leave a reasonable margin; the schooner for incorrectly locating the steam- er by reason of the master's viewing her from the starboard side of his own vessel, and for making the change of course.-Montvet v. The Dorian (D. C.) 1018.
A steamship colliding with a sailing vessel about five minutes after entering a fog bank, held in fault because she had reduced her speed only to about 15 knots.-The Trave (C. C. A.) 390; Law v. North German Lloyd, Id.
A steamer meeting a schooner at night on nearly opposite courses, held in fault because she did not allow sufficient margin for the usu- al and necessary variation in the schooner's course through yawing or leeway.-Henderson v. The City of St. Augustine (C. C. A.) 393; St. Augustine Steamship Co. v. Henderson, Id. Tugs and tows.
A schooner which left her slip at Jersey City, with her stern down the river, and in wearing round, with an off-shore breeze, to go down stream, struck, about mid-river, a tow going up stream on a hawser from a tug, held in fault for dilatoriness and inattention in not effecting a reasonably speedy turn; the tug also held in slow turn, and delay in hauling away.-Bar- ney Dumping-Boat Co. v. The John T. Williams (D. C.) 938; Applegate v. The R. J. Moran, Id. A tug took two barges abreast from a slip in the East river, and, when a little way out in
fault for lack of attention to the schooner's
to be towed astern of the other. In doing so, the barge got adrift and injured other vessels. Held, that the tug was solely in fault for not "singling out" in the slip, and, after going out, for attempting to do so too near the shore, in the strong crossing tide.-The Blanche L. (D. C.) 939; The Thompson, Id.; Fisher v. The Henry A. Crawford, Id.; Morris v. Same, Id.; Bresette v. Same, Id.
A large steamer leaving her dock in the North river to round down stream held in fault for a collision with the tow of a tug which was com- ing down the river on her starboard hand, be- cause she failed to observe rule 19, which gave the tug the right of way.-The Eldorado (D. C.) 940; Clyde Steamship Co. v. The Florence, Id. Fog.
A sailing vessel, provided at the commence- ment of her voyage with a mechanical fog horn in good order, and with a good mouth horn, held to have complied with the requirements of prudence and of sailing rule 12; and, the me- chanical horn having become disabled by acci- dent, she was not in fault, where the mouth horn was being properly sounded at the time of collision.-The Trave (C. C. A.) 390; Law v. North German Lloyd, Id.
Where a sail lighter, proceeding down the East river, became enveloped in a fog when abreast of Governor's Island and in the usual track of ferryboats, held, that it was her duty to haul nearer the island out of the course of ferry- boats, and that she was alone in fault for col- lision with a ferryboat, which was running at moderate speed, and which heard no fog horn.- Briggs v. The Whitehall (D. C.) 1022.
There is no rule of navigation requiring ferry- boats in New York harbor to cease running dur- ing a fog.-Briggs v. The Whitehall (D. C.) 1022.
entitled to complete indemnity. The Plymo In cases of mutual fault, cargo owners are thean (C. C. A.) 395; Canton Ins. Co. v. Claim- ants of the Victory, Id.; Claimants of the Vic- tory v. Canton Ins. Co., Id.
The measure of damages for injuries to a ves- sel owned by a city held to be the reasonable cost of repairs, without regard to the actual amount paid therefor under a contract made by advertisement for bids and the acceptance of the only bid offered; especially as there was no sur- vey on notice, as usual, nor any ascertainment of probable damages before acceptance of the bid.-The Mattie Newman (D. C.) 1017; City of New York v. The Robert Hadden, Id.
one is much the graver, the liability of each may In cases of mutual fault, where the fault of be measured by the degree of its fault. Held therefore, that damage to cargo should first be compensated from the proceeds of the vessel most in fault, any deficiency to be supplied by Canton Ins. Co. v. Claimants of The Victory, the other. The Plymothean (C. C. A.) 395; Id.; Claimants of The Victory v. Canton Ins. Co., Id.
An act authorizing a named municipality to issue bonds without submitting the question to a vote of the electors is a special act, confer- ring corporate powers, and invalid, under Const. Ohio, art. 13, § 1.-German-American Inv. Co. of New York v. City of Youngstown (C. C.) 452. Due process of law.
The California irrigation laws (St. 1887, p. 29 et seq.) held void under the constitution of the United States, because they provide for taking private property for a use which is not "public, and because the method of proceeding results in a taking without due process of law.-Bradley v. Fallbrook Irrigation Dist. (C. C.) 948. Regulation of commerce.
A contract between an Ohio corporation and The Michigan statute (Act No. 182 of 1891, a resident of Michigan, which, after being exe- as amended by Act No. 79 of 1893) imposing cuted by the latter in Michigan, and counter- a "franchise fee" on foreign corporations is signed there by the agent of the corporation, is void as a regulation of interstate commerce, as approved at the corporation's main office in Ohio, applied to foreign corporations engaged in sell- pursuant to a provision, contained in it, that it ing their wares by itinerant agents in Michigan. should not be valid unless so approved, is made-Aultman, Miller & Co. v. Holder (C. C.) 467. in Ohio.-Aultman, Miller & Co. v. Holder (C. C.) 467.
A devise of real estate takes effect on the death of the testator, and is not postponed till of the will in the state where the land proof lies.-White v. Keller (C. C. A.) 796.
A gift of "property and effects" in the residu- ary clause of a Louisiana will is sufficient to pass real estate in Mississippi.-White v. Kel- ler (C. C. A.) 796.
CONSTITUTIONAL LAW
A court cannot declare a law void on the ground that it is wrong, unjust, or oppressive, or violates the genius of our institutions.-For- sythe v. City of Hammond (C. C.) 774.
The provision in the constitution of California forbidding an officer of an incorporated common carrier from engaging in the business of trans- portation as a common carrier over the com- pany's works does not apply to the act of a rail- road officer in having his own freight carried over the company's road.-Bucksport & E. R. R. Co. v. Edinburgh & S. F. Redwood Co. (C. C. A.) 972.
The legislature of a state whose constitution denies power to the legislature to create, en- large, or contract municipal bodies by special act, and requires such changes to be made by general laws, may give the courts power to de- termine whether the conditions fixed by law for such creation, enlargement, or contraction exist. -Forsythe v. City of Hammond (C. C.) 774.
The laws of the United States providing for the issuance, trial, and disposition of proceed- ings by habeas corpus (Rev. St. 753-761) are the supreme law of the land. They extend to every foot of its soil, and are controlling in matters within the bounds of federal jurisdic- tion. A judgment of acquittal thereunder by a federal court will, as to the issues involved, pro- tect the relators from prosecution elsewhere.- Kelly v. State of Georgia (D. C.) 652.
An ordinance imposing a license tax upon "ev- ery express company having an office in the city of A., Virginia, and receiving goods * ** and forwarding them to points within the state of Virginia, or receiving goods * *with- in the state of Virginia, and delivering them in the city of A.," is repugnant to the interstate commerce law, and is void.-Webster v. Bell (C. C. A.) 183.
The Virginia act (Acts 1889-90, §§ 108, 109) imposing a license tax upon agents for the sale of manufactured implements by retail does not violate the constitution of the United States, as a regulation of commerce.-American Harrow Co. v. Shaffer (C. C.) 750.
Where a corporation of one state sends its goods into another in car-load lots, and its agents carry the goods from a central point about the country, selling and delivering direct- ly to purchasers, such agents are not selling by sample, nor engaged in interstate commerce.- American Harrow Co. v. Shaffer (C. C.) 750. Taxation.
The act of Indiana of March 6, 1893, relating to taxation, violates no provision of the consti- tution of the state or of the United States.- Western Union Tel. Co. v. Henderson (C. C.)
The Virginia act (Acts 1889-90, §§ 108, 109) imposing a license tax upon agents for the sale of manufactured implements by retail does not violate article 10, § 1, of the constitution of Vir- ginia, providing that taxation shall be equal.— American Harrow Co. v. Shaffer (C. C.) 750.
The levy of a tax, however unjust, is not a taking of property without due process of law or without just compensation, nor is a tax un- constitutional because its proceeds may be used to pay a debt exceeding a constitutional limit.— Forsythe v. City of Hammond (C. C.) 774.
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