793

44

Criminal law.

One leaving jurisdiction to avoid prosecution is person fleeing from justice," under § 1045, R. S., p. 133.

Approved in Porter v. United States, 91 Fed. 496, 62 U. S. App. 556, to constitute fleeing from justice within 8 1045, R. S., it is not necessary that accused shall have been found within juris diction of another court.

Distinguished in United States v. Hewecker, 79 Fed. 61, one imprisoned in foreign country is not fugitive from justice.

Criminal law. Such person cution has begun or not, p. 133.

66

flees from justice," whether prose

Criminal law. Intent need not be to avoid justice of United States; State justice is contemplated, p. 135.

160 U. S. 136-149, 40 L. 369, UNITED STATES v. HEALEY. Public lands.- Act of 1877, providing for sale of desert lands, does not include alternate sections reserved for railroads, p. 147.

Distinguished in United States v. Ingram, 172 U. S. 328, 329, 331, 333, 19 S. Ct. 177, 179, party abandoning entry has no cause of action for sum paid to initiate entry.

Statutes.- Contemporary practical construction is of weight in case of doubt, p. 141.

Reaffirmed in United States v. Ingram, 172 U. S. 332, 19 S. Ct.

179.

Distinguished in Webster v. Luther, 163 U. S. 342, 41 L. 182, 16 S. Ct. 967, practice of executive department cannot be cited to defeat obvious purpose of statute.

Statutes.- Courts will not be guided by executive construction which is not uniform, p. 145.

Approved in Wisconsin Cent. R. R. v. United States, 164 U. S. 205, 41 L. 404, 17 S. Ct. 49, and United States v. Johnson, 173 U. S. 378, 19 S. Ct. 432, practice must be clear and statute doubtful to warrant resort to former to interpret latter.

64

Statutes.- Word "section will not be construed to mean provision," p. 149.

Miscellaneous.- Cited in United States v. Greathouse, 166 U. S. 605, 41 L. 1131, 17 S. Ct. 703, and The Paquete Habana, 175 U. S. 685, 20 S. Ct. 294, repeals by implication are not favored.

160 U. S. 149-169, 40 L. 374, BAMBERGER v. SCHOOLFIELD. Trial court should refuse to charge for one party where evidence is conflicting, p. 157.

Supreme Court will follow decisions of highest State courts, construing law relative to instructions, p. 159.

Approved in Hartford Ins. Co. v. Chicago, etc., R. R., 175 U. S.. 100. 20 S. Ct. 37, questions of public policy, as affecting liability

160 U. S. 170-187

Notes on U. S. Reports.

794

for acts done or contracts made within State, are governed by State law.

Insolvent may, in Alabama, prefer creditor by sale in good faith, regardless of latter's knowledge and effect on creditors, p. 159.

Approved in Sunday Creek Coal Co. v. Burnham, 52 Neb. 371, 72 N. W. 490, failing debtor's payment of pre-existing indebtedness, by conveyance of property of substantially like value, is valid if creditor be in good faith.

Fraudulent conveyances.— Burden of showing reserved interest in vendee is on party attacking sale, p. 162.

Fraud and notice thereof must be shown by party alleging it, p. 162.

Fraudulent conveyances.- Employment of vendor as clerk to wind up business, is not per se fraudulent, p. 163.

Fraudulent conveyances.- Resale of business to wife of original vendor is not evidence of fraud, p. 164.

Trial.- Instructions must be founded on evidence, p. 167.

Commerce does not include business of transmitting negotiable paper, p. 167.

160 U. S. 170, 40 L. 382, NEW ORLEANS FLOUR INSPECTORS v. GLOVER.

Appeal will be dismissed when act upon which it depends is repealed, p. 170.

Followed in New Orleans Flour Inspectors v. Glover, 161 U. S. 103, 40 L. 633, 16 S. Ct. 493.

160 U. S. 171, 40 L. 382, DOUGHERTY v. NEVADA BANK. Supreme Court cannot review State decision construing act relative to street assessments, p. 171.

Not cited.

160 U. S. 171-187, 40 L. 383, TOWNSEND v. VANDERWERKER. Equity may entertain bill for recovery of money which seeks also to establish trust, p. 179.

Approved in Owens v. McNally, 113 Cal. 450, 45 Pac. 712, 33 L. R. A. 372, parol contract to leave property to plaintiff may be specifically enforced, but not against promisor's wife by subse quent marriage; Burns v. Smith, 21 Mont. 272, 69 Am. St. Rep. 664, 53 Pac. 747, enforcing specific performance of promise in adoption contract to leave promisee a child's share of his estate. Trusts. Where trustee has partially disabled himself from ex ecuting, cestui may assert lien and ask for sale, p. 182.

Trust is created where two persons agree to purchase land, one to hold possession and deed half interest, p. 179.

795

Notes on U. S. Reports.

160 U. S. 187-217

Frauds, statute of, does not apply where agreement to purchase half of lot and build is executed, p. 183.

Frauds, statute of.- Taking possession and making improve ments is evidence of part performance, p. 184.

Equity will excuse delay induced by belief that party would settle rights in will, p. 185.

Approved in McIntire v. Pryor, 173 U. S. 59, 19 S. Ct. 360, where gross fraud of defendants excusing laches; Old Colony Trust Co. v. Dubuque Light, etc., Co., 89 Fed. 807, laches is not mere question of time, but of inequity of granting relief by reason of changed situation.

160 U. S. 187-203, 40 L. 388, BALLEW v. UNITED STATES.

Pension office record is properly authenticated when issued under seal of interior department, p. 192.

Pensions.- Offense of witholding pension is not committed by fraudulently obtaining it from pensioner, p. 194.

Criminal law. General verdict of guilty imports conviction of both crimes charged, p. 197.

Supreme Court may take such action on writ of error as justice may require, p. 202.

Approved in United States v. Eaton, 169 U. S. 352, 42 L. 775, 18 S. Ct. 383. error in treating consuls' fees as unofficial will necessitate modifying, not reversing judgment; Selvester v. United States, 170 U. S. 270, 42 L. 1032, 18 S. Ct. 583, arguendo; dissenting opinion in Bindernagle v. State, 61 N. J. L. 269, 41 Atl. 110, majority holding order, that imprisonment be served in State prison, is no part of judgment and may be annulled without impairing same.

Criminal law. Where there is error as to convicition on one charge, judgment may be entered on other and cause remanded as to former, p. 203.

Approved in Selvester v. United States, 170 U. S. 267, 42 L. 1031, 18 S. Ct. 582 (see dissenting opinion in 170 U. S. 271, 42 L. 1032, 18 S. Ct. 583), receiving verdict of guilty on two counts and disagreement as to third is not error; United States v. Tubbs, 94 Fed. 360, arrest of judgment upon some counts for insufficiency thereof, necessitates setting verdict aside as to others, where evidence under defective counts was prejudicial in trial on others, Routt v. State, 61 Ark. 598, 34 S W. 263, Supreme Court may set aside sentence for robbery and remand, instructing sentence for grand larceny.

160 U. S. 203-217, 40 L. 395, ALLISON v. UNITED STATES. Homicide.— Accused's testimony should not be negatived by hostile remarks of judge in charge, p. 207.

Approved in Hickory v. United States, 160 U. S. 425, 40 L. 480, 16 S. Ct. 333, holding libel charge error.

160 U. S. 217-220

Notes on U. S. Reports.

796

Homicide. Erroneous statement as to effect of accused's testimony, held not cured by later correct statement, p. 210.

Approved in Smith v. United States, 161 U. S. 90, 40 L. 628, 16 S. Ct. 485, defendant is entitled to new trial where judge instructed as to credibility of class of witnesses.

Criminal law. There is no presumption in favor of or against truthfulness of accused, p. 210.

Approved in Wilson v. United States, 162 U. S. 621, 40 L. 1095, 16 S. Ct. 899, weight of accused's testimony is for jury.

Criminal law. It is error for court, in commenting on evidence, to exclude that favorable to accused, p. 212.

Homicide.- Charge as to self-defense should not ignore evidence that defendant was armed to hunt, p. 212.

Approved in Wallace v. United States, 162 U. 8. 475, 40 L. 1043, 16 S. Ct. 863, generally.

Homicide. Deceased's threats are inadmissible to show grudge or ill will on part of accused, p. 215.

Approved in Smith v. United States, 161 U. S. 88, 40 L. 627, 16 S. Ct. 484, evidence that deceased was a larger, stronger man than accused, and generally reputed dangerous, is admissible.

Homicide. Jury determines question of self-defense, p. 216. Criminal law. Charge should not take form of animated argument, p. 217.

Reaffirmed in People v. Barueri, 149 N. Y. 279, 52 Am. St. Rep. 733, 43 N. E. 642.

160 U. S. 217-220, 40 L. 401, INTERIOR CONSTR., ETC., CO. v. GIBNEY.

Courts. Where record and petition shows only question of jurisdiction, cause is sufficiently certified, p. 219.

Approved in Chappell v. United States, 160 U. S. 507, 40 L. 513, 16 S. Ct. 399, like case; Elkhart Nat. Bank v. Northwestern, etc., Loan Co., 84 Fed. 76, arguendo.

Supreme Court will dismiss sua sponte where necessary diverse citizenship does not appear, p. 219.

Appearance, if general, waives objection merely to district in which suit is brought, p. 220.

Approved in Marks v. Marks, 75 Fed. 332, provisions (acts of 1887-1888) as to district wherein action shall be brought may be waived unless seasonably objected to; Creagh v. Equitable, 83 Fed. 850, fact that defendant, sued by alien, resides in another district does not affect right to remove; Van Doren v. Pennsylvania R. R., 93 Fed. 263, reaffirming rule; Rodgers v. Pitt, 96 Fed. 677, objections to mode of acquisition of jurisdiction are waived when not made in time.

797

Notes on U. S. Reports.

160 U. S. 221-231

Courts. Whether those defendants who are in district may ob ject to district, query, p. 220.

Cited in In re Keasbey, etc.. Co., 160 U. S. 229, 40 L. 405, 16 S. Ct. 275, corporation, by appointing agent in another district, does not waive right to insist that suit be brought in its own district; Elkhart Nat. Bank v. Northwestern, etc., Loan Co., 84 Fed. 77, court of residence of stockholders of foreign corporations has no jurisdiction over suit by creditor for accounting and individual liability, unless corporation voluntarily appears.

160 U. S. 221-231, 40 L. 402, IN RE KEASBEY, ETC., CO. Appearance, if general, waives objection merely to district in which suit is brought, p. 229.

Cited in Westinghouse Air-Brake Co. v. Great Northern Ry., 88 Fed. 262, 59 U. S. App. 599, arguendo.

Courts.- Corporation, by doing business in other district, does not waive objection to suit there, p. 229.

Approved in Rowbotham v. George P. Steele Iron Co., 71 Fed. 758, compliance with State requirement of appointment of agent on whom service may be made, does not waive right to insist on suit in district of incorporation; Evansville Courier Co. v. United Press, 74 Fed. 919, New York corporation cannot be subjected to jurisdiction of court in Indiana by service on agent therein; Ashley v. Quintard, 90 Fed. 87, stock in corporation of one State, owned by resident of another, cannot be reached by garnishment in third by service on corporation agent; Westinghouse Air-Brake Co. v. Great Northern Ry., 88 Fed. 260, 59 U. S. App. 596, arguendo.

Distinguished in Van Patten v. Chicago, etc., R. Co., 74 Fed. 987, limitation as to district within which suit may be brought does not apply to suits under interstate commerce act to recover damages for overcharging.

Courts of United States and States have concurrent jurisdiction in suits for infringing trademark, p. 231.

Approved in Hennessy v. Herrmann, 89 Fed. 669, amount in controversy is value of trademark, not damages sustained.

Circuit Court's exclusive jurisdiction in suit for infringement of patents is not affected by general provisions, p. 230.

Approved in Barrow S. S. Co. v. Kane, 170 U. S. 112, 42 L. 969, 18 S. Ct. 530, Federal court has jurisdiction over action by nonresident, against foreign corporation doing business in State, for cause arising in foreign country; National Button Works v. Wade, 72 Fed. 299, resident of eastern district of New York, doing business in southern, if served therein, may be sued therein for infringement; Consolidated Fastener Co. v. Columbian Fastener Co., 73 Fed. 829, New York corporation, whose principal office is in southern district, but advertising from northern, may be sued therein;