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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