ABATEMENT OF ACTION. See Constitutional Law, 3.
A bill filed previously to the passage of an act of Congress, making lawful
the building of a particular bridge, the bill praying injunction against
building of it as a nuisance, is abated by such act; though pleas and
replication had been filed, proofs taken, and the case ready for hear-
ing. The Clinton Bridge, 454.
ACCOUNT RENDERED. See Evidence, 3-7.
ACCOUNT STATED. See Stated Account.
ACKNOWLEDGMENT OF DEED. See Illinois, 2.
ACTION. See Abatement of Action; Negotiable Paper, 2.
1. Cannot be sustained on a gratuitous promise. Railroad Company v.
Reeves, 176.
2. A party standing in a position of secondary liability but not in that of
pure surety, held to be without right of against a principal for re-
covery of a tax exacted by the government from the principal, of
which such secondary party had notice and could yet recover (pro-
test having been made by the principal) if the tax was illegally ex-
acted. Baltimore v. Baltimore Railroad, 543.
ACT OF GOD. See Common Carrier.
ADMIRALTY. See Lookouts; Maritime Lien; Practice, 14, 22-24; Prize.
A steamer crossing another, so as to involve risk of collision, condemned
1st, for not keeping clear, having the other on her starboard; 2d,
being the following vessel. The Columbia, 246.
AGENT. See Factor; Principal and Agent.
ALGIERS. See Consul of the United States.
APPEAL. See Writ of Error.
APPEARANCE.
Appearing by counsel and moving to dismiss a bill for want of jurisdic-
tion and also for want of equity, is a waiver of the privilege as to
not being sued in the Circuit Court, given by the Judiciary Act of
1789, to non-residents of the district, and amounts to a voluntary
appearance within the Judiciary Act of February 28th, 1839, which
by implication authorizes any court of the United States to take
jurisdiction against a person not an inhabitant of, or found within
the district where the suit is brought, if he voluntarily appears
thereto." Jones v. Andrews, 327.
ASSUMPSIT. See Quantum Valebat.
1. Their character,-how far in rem, how far in personam—and the dis-
tinction between the two sorts, stated. Conclusiveness of judgments
in the latter, in collateral proceedings, where there has been a valid
writ, a levy, judgment, order of sale, and deed. Cooper v. Reynolds,
308.
2. Where in such suit there is a valid writ and levy on property, a judg-
ment of the court, an order of sale, a sale and sheriff's deed, the proceed-
ing cannot be held void when introduced collaterally in another suit;
even though there have been irregular or defective affidavits and
publication of notice, such as might reverse the judgment for error
in departing from the directions of the statute. Ib.
ATTORNEY. See Counsel and Client.
Not bound by gratuitous promise. Hence the promise of a common car-
rier made without compensation additional to what he has contracted
for, to forward goods already on his route, by an earlier train than
they would usually go by, makes no contract. Railroad Company v.
Reeves, 176.
BANK CHECK. See National Banks; Negotiable Paper, 2, 3.
BARBARY COAST. See Consul of the United States.
BREACHES. See Statutory Bond; Voluntary Bond.
Suits sustainable for, on a statutory bond, if the conditions of it be essen-
tially within those contemplated by the statute, though not within
them literally. United States v. Hodson, 395.
BURDEN OF PROOF. See Entry for Condition Broken.
CALIFORNIA LAND CLAIMS.
Grants of the public domain of Mexico, their three classes; the regula-
tions prescribed by Mexico for the alienation of its public domain;
the Act of the Departmental Assembly of California on such aliena-
tion; the interest passed by an imperfect grant in California consti-
tuting property protected by the treaty of cession. These matters
considered. Hornsby et al. v. United States, 224.
Camanche, The (8 Wallace, 476), in The Blackwall, 1.
Flanders v. Tweed (9 Id. 425), in Coddington v, Richardson, 516.
Grapeshot, The (Ib. 129), in The Lulu, 192, and The Kalorama, 204.
Guy, The (Ib. 758), in The Kalorama, 204.
Norris v. Jackson (Ib. 125), in Coddington v. Richardson, 516.
Paul v. Virginia (8 Id. 168), in Ducat v. Chicago, 410, and Liverpool
Insurance Company v. Massachusetts, 567.
CASHIER OF BANK. Sce Principal and Agent.
A cashier has power, when acting bonâ fide and in the ordinary course of
business, to bin I his bank by marking checks on it as "good." This
rule applies to the National banks. Merchants' Bank v. State Bank, 604.
CAUSA PROXIMA, NON REMOTA, &c. See Common Carrier, 4.
"CHOUTEAU'S MAP."
Is not evidence conclusive upon questions of the extent of lots in St. Louis,
but may go to a jury with other evidence. The Schools v. Risley, 91.
CLAIM AGAINST THE UNITED STATES.
An ancient one on loan certificates, issued by the Continental Congress of
1777, rejected; the same, after investigation into it, having been
rejected in 1792 by Secretary Hamilton, and being as the court con-
sidered without equity. Ward v. United States, 593.
CLIENT. See Counsel and Client.
COLLISION. See Admiralty; Lookouts.
COMMON CARRIER. See Contract, 4.
1. Who shows that a loss was by somo vis major, as by flood, is excused
without proving affirmatively that he was guilty of no negligence.
Railroad Company v. Reeves, 176.
2. The proof of such negligence, if the negligence is asserted to exist,
rests on the other party. Ib.
3. In case of a loss of which the proximate cause is the act of God or the
public enemy, the common carrier is excused, though his own negli-
genco or laches may have contributed as a remote cause. Ib.
4. The maxim causa proxima, non remota spectatur applies to such cases as
to other contracts and transactions; and ordinary diligence is all that
is required of the carrier to avoid or remedy the effects of the over-
powering cause. Ib.
CONCLUSIVENESS OF JUDGMENT.
Judgments of courts of competent jurisdiction cannot be attacked collat-
erally. Stoval v. Banks, 583; Cooper v. Reynolds, 308.
CONDITION. See Contract, 1, 2; Entry for Condition Broken.
CONSIDERATION. See Contract, 1, 2.
The mere promise of a carrier, without additional consideration, to for-
ward freight already on the route by an earlier train than usual, is
not evidence from which a jury can infer a special contract to do so.
Railroad Company v. Reeves, 176.
CONSIGNOR AND CONSIGNEE. See Factor.
CONSTITUTIONAL LAW. See Jurisdiction, 1; Navigable Waters of the
United States.
1. An ordinance of a city imposing a license tax upon dealers in beer or
ale not manufactured in that city, but brought there for sale, is not
necessarily in conflict with the clause of the Constitution which de-
clares that "Congress shall have power to regulate commerce with
CONSTITUTIONAL LAW (continued).
foreign nations, and among the several States;" nor with that one
which declares that "the citizens of each State shall be entitled to all
the privileges and immunities of citizens of the several States." Down-
ham v. Alexandria Council, 173.
2. Corporations whether organized under the laws of a State of the Union
or a foreign government, may be taxed by another State, for the
privilege of conducting their corporate business within the latter.
Liverpool Insurance Company v. Massachusetts, 567; Ducat v. Chicago,
410; both affirming Paul v. Virginia (8 Wallace, 168).
3. An act of Congress enacting that a certain bridge, already built over a
river which divides two States, "shall be a lawful structure, and shall
be recognized and known as a post-route," is constitutional. The
Clinton Bridge, 454.
4. A constitution of a State is a "law," within the meaning of that clause
of the Constitution which ordains that "no State shall pass any law
impairing the obligation of contracts." Railroad Company v. McClure,
511.
5. The decision of a State court which simply held that promissory notes,
given for the loan of "Confederate currency," together with a mort-
gage to secure the notes, were nullities, on the ground that the con-
sideration was illegal, according to the law of the State, at the time
the contract was entered into, is not a decision repugnant to the Fed-
eral Constitution. Bethel v. Demaret, 537.
6. The riparian rights possessed by the owner of land bounded by a navi-
gable river are property, and can be taken for the public good only
when due compensation is made. Yates v. Milwaukee, 497.
7. A statute of a State which confers on a city the power to establish
dock and wharf lines, and to restrain encroachments and prevent ob-
structions to such a stream, does not authorize it to declare by special
ordinance a private wharf to be an obstruction to navigation and a
nuisance, and to order its removal, when, in point of fact, it was no
obstruction, or hindrance to navigation. Ib.
CONSTRUCTION, RULES OF. See Evidence, 8.
I. AS APPLIED TO CONTRACTS.
1. Where the proper meaning of an instrument is clear, the erroneous
construction which the parties to it have themselves put upon it will
not control its effect. Railroad Company v. Trimble, 367.
2. When plain in terms not to be controlled by evidence of usage. Bar-
nard v. Kellogg, 383; Stagg v. Connecticut Insurance Company, 589.
II. AS APPLIED TO STATUTES.
3. A statute granting pieces of lands to Indians, and prescribing a specific
mode in which they may sell, forbids by implication a sale independ-
ently of the mode. Smith v. Stevens, 321.
4. Statutes to raise revenue, are to be construed liberally to carry out the
purposes of their enactment. The rule that what is implied in them is
as much a part of the enactment as what is expressed, holds in regard
to them. United States v. Hodson, 395.
CONSTRUCTION, RULES OF (continued);
5. Those authorizing redemption from sales' for taxes, are to be construed
favorably to the owners of the land, and particularly when such statutes
provide full indemnity to the purchaser and impose a penalty on the
delinquent. Corbett v. Nutt, 464.
CONSULS OF THE UNITED STATES.
The provision of the act of Congress of May 1st, 1810, fixing a salary to
the consul at Algiers, and assigning to him certain duties, treating
that place as belonging to a Mohammedan power, ceased to be opera-
tive when the country, of which it was the principal city, became
a province of France. Mahoney v. United States, 62.
CONTINENTAL CONGRESS. See Claims against the United States.
CONTRACT. See Construction, Rules of, 1, 2; Rescission of Contract.
1. A sale-in the South and just as the rebellion was breaking out, by &
party going North, to one remaining in the South, the sale being
made under apprehension that if held by the vendor it would be
confiscated by the rebel powers, as was threatened-of stock in a
company at its par value, the consideration to be paid out of the net
receipts of earnings of the stock, received quarterly by the company,
and a note given therefor, with the condition that the principal should
become due if the instalments were not regularly paid, after the re-
ceipt by the company of the net quarterly earnings, held a valid sale
under the circumstances. Dean v. Nelson, 158.
2. Such a condition in the note was not a penalty, but was of the sub-
stance of the contract. Ib.
3. A contract of a special sort between a city and unincorporated con-
tractors, who became afterwards incorporated, for making street rail-
ways, construed. People's Railroad v. Memphis Railroad, 38.
4. Consideration is essential to a contract, and a gratuitous promise of a
bailee (a common carrier), that is to say a promise without compen-
sation additional to what he has contracted for, to forward goods
already on his route, by an earlier train than they would usually go
by, is not obligatory. Railroad Company v. Reeves, 176.
5. When plain in terms not to be changed by evidence of usage. Barnard-
v. Kellogg, 383; Stagg v. Insurance Company, 589.
CORPORATIONS. See Salvage, 1.
The essential characters of them defined, and an association of individuals
under acts of the British Parliament, somewhat in the nature of a
joint stock association but with larger powers, held to constitute a
corporation in the modern state of the law, though the acts de-
clared that it should not become a corporation. Liverpool Insurance
Company v. Massachusetts, 566.
A deed from one owner conveying quarry lands to his co-owners, in fee,
they agreeing to quarry and deliver to the grantor certain sorts of
marble from it, up to a limited amount, and be reserving a right, if
the grantees did not furnish the marble from the land, to enter and
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