Id. 2. The doubts with regard to the authority mer will be obtained by the latter company,-granted in a corporate charter are to be re- is in violation of a law prohibiting railroad solved against the corporation. Louisville & corporations from consolidating with, leasing, N. R. Co. v. Kentucky, 849 or purchasing, or in any other way becoming 3. The failure of the minutes of a railroad the owner of or controlling, a parallel or comcompany to disclose authority expressly given peting line. to its president to execute a contract within the legitimate scope of the powers of the company will not be any defense to the enforcement of the contract by the other party, after the corporation has accepted the benefits of the contract. Jacksonville, M. P. R. & Nav. Co. v. Hooper, 515 10. A corporation by discounting a note sent to it from another state does not thereby carry on business in such other state. Bamberger v. Schoolfield, 374 COSTS AND FEES. 1. Costs of the remarking of a boundary line between states, which has become obliterated, are directed to be paid equally by those states, including not more than $10 per day for each commissioner. Missouri v. Iowa, 5x3 2. A judgment for costs cannot be rendered against the United States. Stanley v. Schwal 4. To lease and maintain a summer hotel at the seaside terminus of a railroad is not so plainly outside charter authority to sell, lease, or buy any land or real estate not necessary for its use, and to erect and maintain all convenient buildings for the accommodation and use of their passengers, that the defense of by, ultra vires can be set up against the other party to the contract. Id. 5. A covenant by a railroad company to insure hotel property leased to it at a summer resort, while the lessor covenants to rebuild in case the hotel is destroyed by fire, and that rent shall not be paid in such an event until the building is in babitable condition, is not ultra vires, where the corporation has power to take a lease of the property. id. COUNTERFEIT. See POSTOFFICE, 2. COURTS. 960 For Jurisdiction of, on Appeal, see APPEAL See also APPEAL AND ERROR, 70; CESSION; 1. The admission of a will or codicil to probate as a devise of real estate is not within the jurisdiction of the supreme court of the District of Columbia. Campbell v. Porter, 1044 6. A stockholder of the Central Pacific Railroad Company of California is not liable to the United States on account of bonds received by the company from the United States under the Pacific Railroad acts of Congress, since the liability depends upon those acts rather than the state law, and by them the railroad is treated as part of a continuous line across the conti nent uniting with the Union Pacific Railroad, and is given all the immunities and guaranties of the latter, and made subject to the same conditions, restrictions, and requirements, while the security which was stipulated for is a lienern P. R. Co. on the property of the corporation, without any provision for liability of the stockholders. United States v. Stanford, 751 7. A constitutional prohibition against the consolidation of the stock, franchises, or property, as well as the purchase and lease, of parallel and competing lines of railroad, does not, by repealing an upexecuted charter power of a railroad company to purchase a parallel line, impair the obligation of any contract contained in its charter. Louisville & N. R. Co. v. Kentucky, 849 2. New rights or privileges created by state statutes may be enforced in Federal courts on their equity or admiralty side, precisely as rights of action thus created may be enforced upon their common-law side. Cowley v. North 263 3. The facts upon which the jurisdiction of the courts of the United States rests must appear in the record of all suits prosecuted before them. Fishback v. Western Ù. Teleg. Co. 630 Federal questions. are plaintiffs or petitioners is within the juris4. A controversy in which the United States diction of the circuit court without regard to the value of the matter in dispute. United States v. Sayward, 508 5. The fact that a party to an action is a corporation created by the laws of the United States makes a Federal question for the pur pose of jurisdiction of a circuit court. Wash ington & 1. R. Co. v. Cœur d'Alene R. & Nar. Co. 346 8. A bare unexecuted power to consolidate with other corporations, given to a railroad company by its charter, is not, so long as it continues unexecuted, a vested right protected from control or revocation by the legislature, Jurisdiction based on citizenship. -at least so far as it applies to parallel or com 6. A suit for the collection of assets by a repeting lines. Pearsall v. Great Northern R. ceiver in a general creditors' suit pending in a Co. 838 circuit court of the United States is ancillary 9. An arrangement by which a railroad to such suit and within the jurisdiction of that company, in return for a guaranty, turns over court, regardless either of the citizenship of to a trustee for the entire body of stockhold the parties or of the amount in controversy. ers of another company owning a parallel road, White v. Ewing, one half of its stock, with an agreement contemplating an interchange of traffic and the use of terminal facilities, and with the almost certainty that the complete control of the for 67 7. The creation of a corporation merely for the purpose of giving jurisdiction on the ground of diverse citizenship to the Federal court, in an action for land conveyed to it apparently without any consideration, is a fraud upon the court which will not be effective to give such jurisdiction, where the new corporation is or ganized by the individual stockholders and officers of a corporation existing in the same state in which the other parties to the action reside, although the old company delivers to the new one a deed of bargain and sale of the land, and retains no interest in the land, and owns none of the stock of the new company. Lehigh Min. & Mfg. Co. v. Kelly, 444 8. A foreign corporation is not converted into a domestic corporation of a state so that diverse citizenship will exist between it and the state of its original creation for the purpose of jurisdiction in a Federal court merely by granting it rights and powers in respect to the operation of a railroad on certain conditions, among which is the keeping of an office in the state, so as to be subject to process of the state courts and by its submission to the requirement of a subsequent statute that it shall file a certified copy of its articles of incorporation or charter with the secretary of state, and shall thereupon become a corporation of the state, anything in its articles of incorporation or charter to the contrary notwithstanding. St. Louis & S. F. R. Co. v. James, 802 Amount in controversy. 9. An aggregation of the amounts of the taxes to be collected in different counties cannot be made for the purpose of obtaining the jurisdictional amount of $2,000, in a suit in a circuit court of the United States to restrain county clerks and tax collectors from enforcing assessments on a telegraph company which have been already made by railroad commissioners, although such commissioners, having already acted, are also named as defendants. Fishback v. Western U. Teleg. Co. Jurisdiction of crimes. 630 10. The provision for the prosecution of offenses in the division of the district in which they were committed, made by the act of Congress of July 12, 1894, chap. 132, with respect to the district of Minnesota, applies to all proceedings instituted after the act took effect, although the offenses may have been committed before that time. Post v. United States, 816 11. The crime of a bank president, begun outside of his own state by illegally drawing checks in the name of his bank on another bank which paid them and debited them to his bank, is completed in his own state, so as to be within the jurisdiction of the courts of that state by inducing his bank to ratify the debit, if such debit was illegal and not binding upon the bank without ratification. Putnam V. United States, Indian cases. 1118 12. The word "parties," in the Cherokee treaty of July 19, 1866, art. 13, and the act of Congress of May 2, 1890, giving exclusive juris diction to the Indian tribunals of civil and criminal cases in which members of the nation shall be the only parties, means parties to the crime, and not simply to the prosecution. Alberty v. United States, 1051 13. The murder of a colored citizen of the United States residing in the Indian territory as the husband of an Indian woman, by another negro who is an adopted citizen of the Cherokee Nation is not a crime to which the only parties are members of that nation by nativity or adoption, within the meaning of the Cherokee treaty of July 19, 1866, art. 13, and the act of Congress of May 2, 1890, giving exclusive jurisdiction of such crimes to the Indian tribes, but is within the jurisdiction of a Federal court. Id. 14. The illegitimate son of a negro slave woman and a Choctaw Indian takes the status of his mother, and is, for the purpose of jurisdiction of Federal courts, to be regarded as a colored citizen of the United States, and not as a member of the Cherokee Nation in which he has the right to reside and hold personal property by virtue of his marriage with a Cherokee woman. Judges. Id. 15. Orders by a de facto judge continuing a term of court from day to day until the regular judge comes upon the bench are sufficient at least to keep the term alive, so as to prevent business done by the latter judge from being treated as illegal. McDowell v. United States, 271 18. A corporation by doing business or appointing a general agent in a district other than that in which it is created does not waive its right, if seasonably availed of, when sued in a Federal court, to insist that the suit should be brought in the latter district, whether the jurisdiction depends on diverse citizenship or on the nature of the questions involved. Re Keasbey & M. Co. 402 19. Defendants who have appeared generally in a Federal court cannot object that other defendants were not inhabitants of the district in which the suit was brought. Interior Const. & I. Co. v. Gibney, Exclusiveness or conflict of jurisdic tion. 401 pending several years, and in which a receiver | 3. Increase of punishment on conviction of a second offense, by reason of the commission of the first offense, does not make the punishment cruel and unusual. had been asked and direction therefor made by an appellate court on remanding the case prior to the appointment by the Federal court. Missouri P. R. Co. v. Fitzgerald, 536 Rules of decision. 22. Every intendment will be made by the courts in favor of the constitutionality of an act of Congress. United States v. Gettysburg Electric R. Co. 576 23. A Federal court construing the meaning of a state statute as to what contract is contained therein, and whether the state has passed any law impairing its obligation, is not bound by previous decisions of the state courts, except when they have been so long and so firmly established as to constitute a rule of property; but the Federal court will decide independently whether there is a contract and whether its obligation is impaired. Shelby County v. Union & P. Bank, 650 Id. 5. Recitals in the record of a trial, that the accused appeared in person and by attorney, and that the jury were ordered "to try the is sue joined," are insufficient to show that he pleaded to the indictment or was formally arraigned. Crain v. United States, 1097 6. The record of a trial for an infamous crime must show affirmatively that it was demanded of the accused to plead to the indictment, or that he did so plead; and failure to show this is not a matter of form only which 24. The law of a state respecting preference is cured by U. S. Rev. Stat. § 1025, but is a of creditors, as declared by the supreme court matter of substance in the administration of of that state, will be adopted by the Federal the criminal law, involving the substantial courts in cases arising in that state. Bamber-rights of the accused. ger v. Schoolfield, 374 Id. CRUEL AND UNUSUAL PUNISH. 25. Federal courts must determine the valid. CRIMINATION OF SELF. See WIT ity of bonds issued by townships in South NESSES, 11-14. Carolina according to their own view of the law of that state, where the holder purchased the bonds before any decisions in that state had denied the validity of the statute authorizing the bonds, and even since his purchase there has not been a settled course of decision by the state courts on the subject. Folsom v Township 96, 278 26. A determination of the land department upon a construction of a law is not conclusive upon the courts. Wisconsin C. R. Co. v. For sythe, 71 27. Construction of acts of Congress respecting public lands will be made by the court without reference to the practice in the land department, when that has not been uniform. United States v. Healey, 369 COVENANT. See CORPORATIONS, 5; DAMAGES, 1; LANDLORD AND TENANT. CRIMINAL LAW. As to Exemption from Giving Testimony to 11-14. See also BANKS, 4; CONSTITUTIONAL Law, 2, 13, 14; DEPOSITIONS; LIMITATION OF ACTIONS, 3; TRIAL, 5, 6, 18-21. CUSTOMS DUTIES. See DUTIES. 1. Damages for breach of a covenant in a lease to insure the property are what the property should have been insured for, if it was worth that amount, and not merely the cost of procuring such insurance. Jacksonville, M. P. R. & Nav. Co. v. Hooper, 515 2. A recovery of profits from infringement cannot be had in an action against officers and agents of the United States, when the only gains, profits, and advantages from the infringement inured to the benefit of the gov ernment, and not to such officers and agents. Belknap v. Schild, 599 DECOY. See POSTOFFICE, 6-9. DEFINITIONS. See also POSTOFFIce, 11. 1. An expediente is a complete statement of ican grant. Ainsa v. United States, every step taken in the proceedings for a Mex673 2. A testimonio is the first copy of the exId. pediente of a Mexican grant. 1. Criminal proceedings are not instituted before the passage of an act which has a pros: pective operation only, merely because a bill of indictment has been submitted to the grand jury by the prosecuting attorney, and witnesses examined before the grand jury, when the indictment is not presented or any information DEPOSITIONS. filed in court or any complaint inade before a magistrate until after the act is passed. Post v. United States, ERS, 3. See also COMMISSION The constitutional right of the accused in a criminal prosecution to be confronted with the witnesses against him does not extend to an action to recover the value of merchandise forfeited to the United States under the customs administrative act of June 10, 1890, chap. 407, 301 but the government may in such an action use 816 2. A person is not twice put in jeopardy for the same offense, merely because under statutory authority a severer sentence is imposed upon conviction of a second offense. Moore ▾. Missouri, the depositions of foreign witnesses duly taken | act, must be the result of established usage in and returned under letters rogatory. States v. Zucker, DEPUTY. See CLAIMS, 3. United commerce and trade, which at the time of the 777 passage of the act was definite, uniform, and general, and not partial, local, or personal. Sonn v. Magone, 203 5. Lentils and beans in a dried state are vegetables, and not seeds, within the meaning of the tariff act of 1883. Id. DISTRICT AND PROSECUTING broken up to form artificial waste in order to 9. Tops of scoured wool which have been bring them within the provision of the tariff act of 1883, imposing 10 cents per pound upon ing under 30 cents per pound in an unwashed waste when the wool is of the first class, costcondition, are dutiable at 60 cents per pound under the provision of the act for treble the duty on wool imported scoured, and double the duty otherwise chargeable, when the condition or character of the article has been changed for the purpose of evading the duty. Id. The abolition of dower by the Wyoming territorial statute of December 10, 1869, is not annulled or superseded by the act of Congress of March 3. 1887, chap. 397, § 18, conferring and regulating the right of dower, but this 10. Paper coated, colored, and embossed to section must be limited to the territory of imitate leather, or coated with flock to imitate Utah, in which it was peculiarly called for velvet, such as were known to commerce and and to which many sections of the act are the trade as "fancy papers," "embossed paper," limited in terms. France v. Connor, 619" morocco paper," or "imitation of velvet paper," at the time the tariff act of 1883 was DRUGGISTS. See CONSTITUTIONAL LAW, passed, are dutiable under schedule M as paper at 25 per cent ad valorem, and not under another paragraph as manufactures of paper at 15 per centum. De Jonge v. Magone, 260 DYING DECLARATIONS. See EVIDENCE, 38. EASEMENTS. See also CONSTITUTIONAL LAW, 5. DUE PROCESS. See CONSTITUTIONAL DUTIES. See also TRIAL, 7. 1. Merchandise entered for consumption and delivered between August 1 and August 28, 1894, is not subject to the provisions of the act of August 28, 1894, although it provides in § 1 for duties "on and after the 1st day of August" in that year, since the act did not take effect until the 28th day of the month. United States v. Burr, 82 2. A well-known signification in trade and commerce at the time of the passage of a tariff act determines the meaning of a word used therein. De Jonge v. Magone, A servitude under state law, of lands bordering on a navigable stream, by which they are subject to the construction of levees without compensation to the land owner, attaches to lands held under a patent from the United States equally with lands held under other title. 490 Eldridge v. Trezevant, 260 EJECTMENT. 3. The principal or chief use of an article determines its tariff classification, where use becomes the criterion, although such use may not be exclusive, or an exclusive commercial use. Magone v. Wiederer, 258 1. A person in possession of land claiming under irregular foreclosure proceedings by which, if void, he acquired the rights of the mortgagee, cannot be ousted in ejectment by one who claims under the mortgagor. Bryan 1022 v. Brasius, 4. Commercial designation, to control the ordinary signification of a word in the tariff 2. A mortgagee in possession after irregular foreclosure proceedings in which he bid in the property cannot, while his debt is past due and unpaid and no offer to redeem or tender of payment is made, be ousted in ejectment by the holder of the bare legal title, which, if the foreclosure was void, is subject to the mortgage and the mortgagee's right of possession until the debt is paid. Bryan v. Kales, 1020 3. A railroad company obtains no title which it can assert in ejectment against other parties, to lands granted to the state in trust for it, but relinquished and reconveyed by the state to the United States without in any way transferring any right to the railroad company. Sioux City & St. P. R. Co. v. Countryman, 187 4. An employee who attempts to make a relocation of a mining claim on which he is employed to work, and takes forcible possession thereof, cannot set up any flaw in the title of his employer as a defense to an action by the latter for the property. Haws v. Victoria Copper Min. Co. 436 7. Condemnation by a city for sanitary purposes, of the title in fee of property of many people, may be authorized by statute under the Massachusetts Constitution, giving power to make all manner of reasonable laws not repugnant or contrary to the Constitution, where this is done for the purpose of properly draining and raising the grade of land, and considerations of public health justify prompt action and the use of such means as can be effectively supplied only by municipal action under legislative authority. Sweet v. Rechel, 188 8. Prior payment or tender of compensation, not expressly required by a constitution providing just or reasonable compensation for property taken by the public, need not be provided by statute in case of condemnation by a city for public purposes, where it does provide for the regular ascertainment of the damages without improper delay and in some legal mode, and gives the owner an unqualified EMBEZZLEMENT. See INDICTMENT, 6; right to judgment therefor collectible by judicial process. ELECTION OF REMEDIES. See Ac- POSTOFFICE, 6. 4. The intent of Congress to authorize the lands of an electric-railway company on the battlefield of Gettysburg to be taken by condemnation is plainly apparent from the recital in the joint resolution of June 6, 1894, that there is imminent danger of the defacement of portions of the battlefield by the construction of a railway over them. Id. 5. A limitation of the amount appropriated by Congress for the condemnation of land, with a proviso that no obligation or liability on the part of the government shall be incurred or any expenditure made beyond the appropriations then made or to be made during that session of Congress, will not prevent condemnation of land for the purpose specified, unless it is shown that the appropriation is exhausted. Id. 6. A jury in a Federal court, in proceedings to condemn lands under the act of Congress of August 1, 1888, chap. 728, is a jury of the same kind that is had in questions at law in Federal courts, and not a mere jury of inquest or Amendment of Rule 51, see APPENDIX III. Id p. 1134 A court of equity has jurisdiction of an action which, in addition to recovery of money, seeks to establish a trust in favor of the plaintiff and to obtain a sale of the property to satisfy his claim. ESCHEAT. Townsend v. Vanderwerker, See also 383 CONSTITUTIONAL 1. Provisions in a judgment vesting title to land in the state on proceedings for escheat are distinct and severable from provisions for a sale and conversion into money after the title vests in the state, and may stand good though the latter provisions prove invalid. Hamilton 691 V. Brown 2. Judgment declaring that land has escheated to the state, when rendered on a petition containing the proper allegations, and when no person is in possession of it, is conclusive evidence of the state's title in the land, not only against any tenants or claimants having had actual notice by scire facias or having appeared and pleaded, but also against all other persons interested in the estate and having had constructive notice by publication. Id. |