Verdict on insufficient deed, see "Adverse Possession."
Errors on appeal, see "Appeal and Error."
Contributory negligence for jury, see "Contributory Negligence."
Instruction of damages to passengers approved, see "Damages."
Findings in equity not conclusive as verdict, see "Ejectment."
Exceptions to instructions in criminal case, see "Homicide."
Trial of mining cases, see "Mines and Minerals."
Taking testimony by reference, see "Reference."
1. Order of proof on trial.
Under the rule that the order of the introduction of evidence
rests largely in the discretion of the court, permitting the intro-
duction of a certificate of location of a mining claim before
proof had been made of the actual location and marking of the
claim or the recording of the certificate is not reversible error.
-Walton v. Wild Goose Min. & Trading Co., 123 Fed.
209, 60 C. C. A. 155.
2. Exception to nonsuit waived by introducing testimony.
An exception to an order overruling a motion for a nonsuit
is waived by the subsequent introduction of evidence by defend-
ant.
-Fulkerson v. Chisna Min. Co., 122 Fed. 782, 58 C. C.
A. 582.
3. Error to assume facts in instructions.
It is error for the court, in instructing the jury, to assume
the existence of a fact which it is the province of the jury to
determine from the evidence, or of one in support of which
there was no evidence.
-Dolan v. United States, 123 Fed. 52, 59 C. C. A. 176.
4. It is not error to state admitted facts.
It is not error for a trial court, in its instructions to a jury,
to state so much of the admitted facts as may be necessary to
illustrate and apply the law to the case on trial.
-Williams v. Alaska Commercial Co................
5. Instructions to be in writing.
A statutory provision that on request the charge of the court
"shall be reduced to writing and given to the jury without any
oral explanation" (Code Alaska, § 187, subsec. 17; Act June 6.
1900, 31 Stat. 361, c. 786) is to be reasonably construed with
reference to the purpose intended to be secured thereby, and
a judgment will not be reversed because the court orally an-
swered a question asked by the jury after they had retired,
where it could not have prejudiced the plaintiff in error.
-Walton v. Wild Goose Min. & Trading Co., 123 Fed.
209, 60 C. C. A. 155.
6. Time extended for objections to instructions.
Where a case was submitted to the jury but two hours be-
fore the expiration of the term by limitation, and the court
refused to detain the jury to give a party time to reduce his ob-
jections to the instructions to writing and present the same, but
gave him permission to present them within a reasonable time
after the jury had retired, which was done, the fact that the
objections were not taken before the jury retired does not de-
prive such party of the benefit thereof.
-Dalton v. Moore, 141 Fed. 311, 72 C. C. A. 459.
7. Question for the jury.
In a joint action for trespass and conversion, where there
is a conflict of testimony, the question whether there was such
concert of action between the defendants as to establish joint
liability is one for the jury, and instructions which take such
question from the jury or which leave them to infer that malice,
oppression, or gross negligence on the part of any one defendant
renders them all liable for exemplary damages, are erroneous.
-Hoxsie v. Nodine, 123 Fed. 379, 61 C. C. A. 223.
It is not error to direct a verdict, where the evidence is of
such conclusive character that the court, in the exercise of a
sound judicial discretion, would be compelled to set aside a ver-
dict in opposition to it.
-Shoup v. Marks, 128 Fed. 32, 62 C. C. A. 540.
To entitle the plaintiff's cause to go to the jury, he must have
established every material part thereof by his evidence, and his
evidence and the law must correspondingly show a prima facie
legal right to judgment in his favor.
Where the plaintiff's evidence fails to make a prima facie case,
or if it shall disclose facts which destroy his right of recovery,
the judge should direct a verdict for defendant.
-Begenish v. Gates.....
A defendant, who purchased property which had been seized
from plaintiff and was sold under a writ claimed to have been
void, but who took no part in the removal of the property, can-
not be held jointly liable with the officer for the trespass and
conversion; the rule being that to create a joint liability there
must have been a concert of action between the defendants.
-Hoxsie v. Nodine, 123 Fed. 379, 61 C. C. A. 223.
2. Evidence to impeach title.
In an action of trover against an officer to recover the value
of goods seized by him and taken from plaintiff's possession
under a writ of attachment against a third person, where it has
already been determined that under the statute such seizure
was unauthorized and illegal, evidence tending to show that the
sale of the goods by the attachment defendant to plaintiff was
in fraud of the seller's creditors constitutes no defense by im-
peaching plaintiff's title; the sale being sufficient to transfer the
title to him as between the parties and as against all others ex-
cept creditors of the seller proceeding legally under a valid
process.
-Shoup v. Marks, 128 Fed. 32, 62 C. C. A. 540.
Oral agreements to locate mines, see "Mines and Minerals."
1. In locating public lands.
The location of public land in the name of one person for
the joint use and benefit of himself and another, where both
selected the land and occupied it and expended money in its im-
provement, creates a trust in respect to the land, and a contract
between the trustee of the title and his cestui que trust, by which
the latter relinquishes his right in the land, will not be sus-
tained unless it affirmatively appears to be fair and just.
-Moore v. Moore, 121 Fed. 737, 58 C. C. A. 19.
Actual possession of mine, see "Mines and Minerals."
1. Assumpsit for, will not lie without contract.
Where defendant was in possession of real estate, claiming
under a third person adversely to plaintiff, and no relation of
contract existed between the parties, plaintiff was not en-
titled to maintain assumpsit against him for use and occupation.
-Adsit v. Kaufman, 121 Fed. 355, 58 C. C. A. 33.
1. Usury statute affects remedy.
Usury statutes do not affect the obligation of the contract,
but pertain to the remedy only, by giving to the debtor the
privilege of avoiding his contract when usurious, and their re-
peal, without saving clause, takes away such privilege, even as
to contracts previously made.
-Petterson v. Berry, 125 Fed. 902, 60 C. C. A. 610.
2. Repeal of law prevents forfeiture for usury.
The Oregon interest statutes, in force in Alaska from 1884 to
1900, limited the rate of interest which might be lawfully con-
tracted for to 10 per cent., and provided that contracts by which
a higher rate was reserved should be usurious, and the entire
debt should be forfeited. Hill's Ann. Laws Or. 1892, §§ 3587-
3590. Act June 6, 1900, c. 786, 31 Stat. 533, 534, adopting a
code for Alaska, in sections 255-259, contains similar provisions.
except that the contract rate may be 12 per cent., and the
penalty for usuary is the forfeiture of the interest only. Held,
that a mortgage executed in Alaska in 1898, securing notes in
which interest at the rate of 12 per cent. was reserved, on
which suit was there brought in 1903, was not subject to the
defense of usury.
-Petterson v. Berry, 125 Fed. 902, 60 C. C. A. 610.
The defense of usury cannot be made by demurrer to a bill or
complaint to foreclose a mortgage for both principal and interest
of the debt, where such defense, under the statute, affects only
the interest.
-Petterson v. Berry, 125 Fed. 902, 60 C. C. A. 610.
4. Penalty for exacting usury.
Where one exacts usurious interest in Alaska, and is sued
under section 257, Civ. Code, to recover the damages therefor,
the plaintiff is entitled to recover double the whole amount of
interest paid, and not merely double the amount of the excess
or usurious interest.
5. Adopting Texas law adopted construction of Texas courts.
Section 257, Civ. Code Alaska, was adopted by Congress from
Texas, and a construction thereof by the courts of that state
prior to its transfer to the Code of Alaska must have been in the
mind of Congress, and must be in the highest degree advisory to
this court in its construction of the same statute.
The Alaska usury law was adopted from Texas, and, follow-
ing the decisions of the courts of that state, held, that one
who is compelled to pay usurious interest may recover double
all the interest paid as damages by civil suit.
6. Construction of usury statute.
Section 255 of the Civil Code of Alaska, fixing the rate of
interest which may be agreed on, construed. Held, the words
"per annum" are understood according to standard rules of
grammar; that the section is not ambiguous.
See, also, "Specific Performance."
1. Action for purchase price by vendor.
Plaintiff contracted to sell to defendant a mining claim, identi-
fied in the contract by name and by reference to the government
survey thereof and a deed which plaintiff made at the same
time and deposited in escrow. Plaintiff had made application
for a patent, which was pending, and which he agreed to prose-
cute to a determination, and the purchase money was to be paid
on delivery to defendant of the deed and the receiver's final re-
ceipt. Plaintiff obtained the receipt, and tendered and demand-
ed performance within the time limited in the contract, and in
accordance with its terms, which was refused by defendant.
At the time the contract was made defendant owned another
claim, to which it had applied for a patent, and which was prior
in location to plaintiff's, and overlapped the same; such fact
being known to both parties, and both claims having been pre-
viously surveyed and marked on the ground. Subsequently de-
fendant, having received its patent, filed a protest against the
|