Life Ins. Co. v. Francisco, 84 U.S. (17 Wall.) 672

Life Insurance Company v. Francisco.

1. When, under the terms of a policy of life insurance, the representatives of the party assured are to furnish, within a certain time after the d eat of the assured, “ due proof of the just claim of the assured, if t ® ptirty claiming the insurance-money have within the time furnishe answers written out in the presence of the insurers’ agent, to certain

* Bronson v. Rodes, 7 Wallaoe, 229; Trebilcock ®. Wilson, 12 Id. 687.

printed questions usually furnished by the insurer, for the purpose of seeing whether the claim is just or not, and the insurer receive and keep the questions and answers without any suggestion that such preliminary proofs are insufficient, either in form or substance,—the court, on a suit for the insurance-money, has no right to determine as matter of law, that the questions and answers do not establish the justice of the plaintiff’s claim, and that the plaintiff’ is not entitled to a verdict. Questions and answers so given furnish some evidence that the claim is just; and the matter is proper for the jury even though the contents of the paper do not as yet appear.

2. A rule of court that “in causes tried by a jury, any special charge or instruction asked for by either party, must be presented to the court in writing, directly after the close of the evidence, and before any argument is made to the jury, or it will not be considered,” is a reasonable rule; and the enforce ment or disregard of it is matter of discretion with the court making it, and, therefore, not the subject of a writ of error.

3. Where a medical man testifies that the “ disease ” of a person who had died, and on whose death a claim for insurance was made, “had been indigestion, torpid liver and colic, and that he died of acute hepatitis,” and several other persons, the acquaintances of the deceased, testify that they had never known him to be unwell, or if so more than very slightly, and that they considered him to be a healthy man, an instruction to the jury that the evidence was not sufficient to enable the plaintiff (who was suing for the insurance-money on a policy of life insurance, previous to the grant of which the decedent had answered in reply to the usual questions that he had “ no sickness or disease,”) to recover, was held to have been rightly refused; and that the jury were rightly instructed that it was for them to determine whether the deceased had been afflicted with any sickness or disease, within the meaning of the terms as used in his answers to questions put to him prior to the issue of the policy.

Error to the Circuit Court for the District of California; the case being thus:

Dolores Francisco sued the Manhattan Life Insurance Company upon a contract of insurance, made February 5th, 1867, upon the life of her husband. The husband died twenty-four days afterwards; that is to say on the 1st of March, 1867, and before the policy actually issued. There were two conditions in the policy, which would have been issued had Francisco lived:

1st. That if any representation made by the assured in t o application for the policy should prove to have been Untrue, the policy -should be void.

Upon the trial of the cause the plaintiff offered evidence to prove the contract, and the death of her husband, and also that she had filled up in the presence of the agent of the company and handed to him, who received them without any objection, blank forms which had been furnished by the company, and which were those always used in making proof of death, but offered no evidence as to the contents of those papers. The plaintiff' rested, and the defendant moved the court to instruct the jury that on the evidence given the plaintiff could not recover; which instruction the court refused to give, and the defendant excepted. This was the first exception.

The company then gave in evidence this and other papers which the wife had handed to the agent as'proof of her right to demand the insurance-money. They contained answers by the wife herself in reference to the questions on the blank form, thus:

“ Question. State all the facts regarding cause of death.

“Answer. About the 14th of February, 1867, was taken sick with a severe colic fever; was confined to his house for two days; finally was well enough to attend to business five days succeeding; was again taken sick on the 22d of February, 1867, and from which sickness he died on the 1st of March, 1867.

“ Question. How long has he been sick ?

“Answer. In both attacks about ten days.

“ Question. Did he die suddenly, or was his disease after an illness of how many months, and weeks, and days' duration?

“Answer. He died from an acute attack of the congestion of the liver, which produced fever, and from the effects of which he died, to the best of my knowledge and belief.”

The company also gave in evidence the application for the policy and the representations therein made, referred to. The answers to the usual questions were given by Mr. Francisco, as agent for his wife. He was asked whether he had ever had liver complaint, whether any disease was suspected, whether he had had at any time disease of the stomach or bowels, whether, during the last seven years, he had any sickness or disease, and if so what were the particulars and what physician had attended him; to all which he answered in the negative.

The defendant then rested. The plaintiff then produced nine witnesses, every one of whom testified that they had known Francisco for longer or shorter terms of time, and that they had never known him to be at all unwell, or more than very slightly so; and that they considered him a healthy man. Four of these were asked whether they could say that the physician, Dr. Franklin’s, statements were not correct, and answered that they could not say so; the other five were not questioned on the point.

The plaintiff rested and the evidence was closed. The defendant then prayed the court to instruct the jury that the evidence was not sufficient to entitle the plaintiff to a verdict. The court refused to grant the instruction, and the defendant excepted. This was the second exception.

The evidence having been summed up by counsel, the counsel for the defendant offered to the court certain instructions which he desired the court to give to the jury, but the judge refused, saying it was too late to ask instructions, after argument to the jury, to which defendant excepted. This was the third exception.

There was a general rule of the court—In causes, civil or criminal, tried by a jury, any special c arge or instruction asked for by either party must be pre-

sented to the court, in writing, directly after the close of the evidence, and before any argument is made to the jury, or they will not be considered.”

The court instructed the jury that it was for them to determine whether the deceased had had any disease or sickness within the meaning of the term as used in the question answered by him; that he might have had a cold or headache so slight as not to constitute sickness or disease within the meaning of the question, to which part of the charge the defendant excepted. This was the fourth exception.

The court proceeded to say that the ailment might be so serious as to constitute disease.

The court instructed the jury that it was for them to determine whether the party had been afflicted with any sickness or disease within the proper meaning of those terms, as used in the application; to which part of the charge the defendant excepted-. This was the fifth exception.

Verdict and judgment having gone for the plaintiff, the case was brought here on the following assignments of error:

I. The court erred in refusing the instructions asked as stated in the first and second exceptions.

II. The court erred in refusing to consider the request for instructions after the close of the argument to the jury, as stated in the third exception.

III. The court erred in charging the jury as stated in the fourth and fifth exceptions.

Messrs. J. M. Carlisle and J. D. McPherson, for the plaintiff in error; a brief of Messrs. Doyle and Barber being filed on the same side;

As to the first exception. The court allowed the plaintiff to recover on evidence that the defendant had made the agreement declared on, and that the person whose life was assured had died, with further proof that papers, in the form of those used by the company in “proof of the just claim of the assured,” had been prepared and handed to the agent of the defendant.

Now, the plaintiff, by the terms of the policy, was bound to furnish, first, “ satisfactory evidence of the death of the insured,” and second, “ proof of the just claim of the assured under this policy.” The defendant had offered no proof on the latter point when the instruction was asked and refused. The proofs were correct in form but bad in substance. The company was not bound to return them, or ask an explanation, or suggest a mode of explaining away fatal admissions.* The instruction was asked after the plaintiff had rested, and it was in the nature of a demurrer to the evidence.

Ms to the second exception. The preliminary proofs offered by the plaintiff are admissions by her, and they show that the deceased, her agent, had given false answers to the questions contained in the application for the policy. If this was so, then, by the very terms of the policy, there could be no recovery. The questions were in writing, the answers in writing, and the plaintiff's admissions in writing; these writings it was the province of the court to construe to the jury.

Ms to the third exception. The refusal of the judge to consider any instructions asked after argument to the jury was in accordance with a rule of the court, but the right of counsel to submit instructions at any time before the jury leave the box is part of the common law of the land and cannot be taken away by such rule. This is decided by the Supreme Court of California in People v. Williams.

-4s to the fourth and fifth exceptions. The charge of the court was erroneous in the particulars excepted to. There was no evidence before the jury tending to show that the disease specified by Dr. Franklin, or the sickness testified to by Mardis, was not in fact sickness or disease. Certain ordinary acquaintances of Francisco’s, not one of whom is shown ever to have crossed his threshold, did not witness the specific attacks of sickness and disease- spoken of by Franklin and Mardis, and of course knew nothing of them. They did not

* Campbell ®. Charter Oak, 10 Allen, 213; Irving v. Excelsior Ins. Co., 1 Bosworth, 514; Kimball v. Hamilton Ins. Co., 8 Id. 495; Washington Marine Ins. Co. v. Herckenrath, 3 Robinson (N. Y.), 325. t 32 California, 286.

pretend to deny their occurrence. Their testimony proved nothing more than that Francisco’s general health, so far as they knew, was good. When a medical witness says that he has attended a patient for years for a disease which he characterizes as indigestion, torpid liver, and colic, and another witness speaks of the patient as having been subject, for eighteen months or two years prior to his decease, to attacks, lasting a day or two, of cramps in the stomach, and these witnesses are uncontradicted, it is error to intimate to the jury that they are at liberty to find, from the evidence, that there was no disease in the case. Parks v. Poss* rules this. The evidence on the point was all in one direction, but under the intimation of the court the jury disregarded it, and assumed that certain specific attacks of indigestion, colic, torpid liver, and cramps of the stomach, running through a series of years, were of so trivial a character as not to amount to sickness or disease.

Mr. Justice STRONG delivered the opinion of the court.

The evidence that preliminary proof of the death of Francisco and of the justice of the claim of the assured were given to the defendants ninety days before the suit was brought was quite sufficient to go to the jury. The proofs were in forms, blanks for which had been furnished by the insurers, and the forms were filled up in the presence of their agent. He received them without objection, and it does not appear that at any time before the trial of the case it was ever suggested to the assured that the proofs were insufficient, either in form or in substance. Clearly, therefore, it was not for the court to instruct the jury that the plaintiff was not entitled to a verdict. It seems to have been the idea of the defendants that the statements of the witnesses by whom the preliminary proofs were made did not establish the justice of the plaintiff’s claim. But whether they did or not was a question which the court had no light to determine as a conclusion of law. They furnished, at

least, some evidence that the claim was just, and this they would have furnished had they contained nothing more than averments that the defendants had agreed to insure, and that the person whose life was insured had died. The first assignment of error is, therefore, not sustained.

The second is equally without merit. After the case had been summed up, and when the court was about to charge the jury, the defendants offered to submit prayers for instructions, but the court refused to receive them, assigning as a reason that the offer was too late. This is alleged to have been an error. What the prayers were, whether the instructions asked were pertinent to the case or not, or whether they could rightfully have been given had they been received, we are not informed. They were not incorporated in the bill of exceptions, and they do not appear in the record. But, assuming that they were such as the court ought to have given had they been presented in time, there was no error in refusing to receive them after the case had been argued to the jury. The rule of the court then existing was as follows : “ In causes, civil or criminal, tried by a jury, any special charge or instruction asked for by either party must be presented to the court, in writing, directly after the close of the evidence and before any argument is made to the jury, or they will not be considered.” This is a reasonable rule, intended to guard as well the court as the opposite party against sudden surprise. It does not deprive either party of a right to the opinion of the court upon any material propositions which he may desire to have presented to the jury. It merely regulates the exercise of that right. The rule exists in very many courts, and it has been found necessary in the administration of justice. No doubt a court flmy, notwithstanding the rule, in its discretion, receive prayers for instructions even after the general charge has been given to the jury, but neither party can claim as a right a disregard of the ordinary rules of practice in the court. There is nothing inconsistent with this to be found *n the case cited.* On the contrary, whether a court shall

* People v. Williams, 32 California, 280. «

enforce such a rule, or depart from it, is treated in that case as a matter resting in the discretion of the court. That it is competent for courts to adopt such a rule has often been decided, and once, at least, if not oftener, in California.* The remaining errors have been assigned to the charge of the court. The principal defence set up at the trial was that in the application for insurance false answers had been given to the questions propounded by the defendants. Those questions were, in substance, whether the person whose life was proposed for insurance had had certain diseases, or, during the next preceding seven years, any disease, and the answers given were that he had not. It was in reference to this that the court instructed the jury it was for them to determine from the evidence whether the person whose life was insured had, during the time mentioned in the questions propounded on making the application, any affliction that could properly be called a sickness or disease, within the meaning of the term as used, and said, “ for example, a man might have a slight cold in the head, or a slight headache, that in no way seriously affected his health or interfered with his usual avocations, and might be forgotten in a week or a month, which might be of so trifling a character as not to constitute a sickness or a disease within the meaning of the term as used, and which the party would not be required to mention in answering the questions. But again, he might have a cold or a headache of so serious a character as to be a sickness or disease within the meaning of those terms as used which it would be his duty to mention, and a failure to mention which would make his answer false.”

There is no just ground of complaint in this instruction, either considered abstractly or in its application to. the evidence in the case. It was, in effect, saying that substantial truth in the answer was what was required. If, therefore, the defendants have been injured it was by the verdict of the jury rather than by any error of the court.

Judgment affirmed . .

* People v. Sears, 18 California, 635.

APPENDIX.

The twenty-fifth section of the Judiciary Act of 1789 and the second section of the act of 1867, much similar to it, being referred to in the body of this book more than once, are here given. Words in the former act omitted in the latter, or words in the latter not in the former, are here put in brackets; and words variant in the two acts in italics.

JUDICIARY ACT OF 1789. JUDICIARY ACT OF 1867.

[1 Stat, at Large, 85.] [14 Stat, at Large, 385.]

Section 25. And be it further en- Section 2. And be it further enacted, That a final judgment or decree acted; That a final judgment or decree in any suit, in the highest court [of in any suit in the highest court of a law or equity] of a State in which a State in which a decision in the suit decision in the suit could be had, could be had,

Where is drawn in question the Where is drawn in question the validity of a treaty or statute of or an validity of a treaty or statute of or an authority exercised under the United authority exercised under the United States, and the decision is against States, and the decision is against their validity,

their validity,

Or where is drawn in question the Or where is drawn in question the validity of a statute of, or an au-

validity of a statute of or an au-

thority exercised under any State, on

thority exercised under any State, on

the ground of their being repugnant

the ground of their being repugnant

to the Constitution, treaties, or laws

to the Constitution, treaties, or laws

of the United States, and the decision

of the United States, and the decision

is in favor of such their validity,

is in favor of such their validity,

Or where is drawn in question the

Or where any title, right, privilege,

construction of any clause of the Con-

or immunity is claimed under the

stitution, or of a treaty, or statute of,

Constitution, or any treaty or statute

or commission held under the United

of, or commission held, or authority

States, and the decision is against the

exercised under the United States,

title, right, privilege,- or exemption

and the decision is against the title,

specially set up or claimed by either

right, privilege, or immunity especi-

party, under such [clause of the said]

ally set up or claimed by either party

Constitution, treaty, statute, or com-

under such Constitution, treaty, stat-

mission,

ute, commission [or authority],

May be re-examined and reversed May be re-examined and reversed or affirmed in the Supreme Court of or affirmed in the Supreme Court of the United States upon a writ of error, the United States, upon a writ of the citation being signed by the chief error, the citation being signed by the justice, or judge, or chancellor of the chief justice, or judge, or chancellor court rendering or passing the judg- of the court rendering or passing the ment or decree complained of, or by judgment or decree complained of, or a justice of tbte Supreme Court of the by a justice of the Supreme Court of United States, in the same manner and the United States, in the same man-under the same regulations, and the ner, and under the same regulations, writ shall have the same effect as if the and the writ shall have the same effect judgment or decree complained of as if the judgment or decree comhad been rendered or passed in a Cir- plained of had been rendered or passed cuit Court, and the proceeding upon in a court of the United States; and the the reversal shall also be the same, proceeding upon the reversal shall except that the Supreme Court [in- also be the same, except that the Sustead of remanding the cause for a preme Court may, at their discretion, final decision as before provided] proceed to a final decision of the same, may, at their discretion [if the cause and award execution [or remand the shall have been once remanded be- same to an inferior court]. . . . fore], proceed to a final decision of the same and award execution. [But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.]

ADMIRALTY. See Prize; Practice, 15.

A decree reversed as made on evidence not competent, and in the face of answers responsive to the hill. Moore v. Huntington, 417.

APPEAL. See Practice, 7, 15, 19, 20; Supersedeas.

1. When a proceeding below is, in its essential nature, a foreclosure of a mortgage in chancery, an appeal is thd only proper mode of bringing it to the Supreme Court. Marin v. Lalley, 14.

2. In prize cases, wherever it appears that notice of appeal or of intention to appeal to the Supreme Court was filed with the clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed to the Supreme Court whenever the purposes of justice require it. The Nuestra Seflora de Regia, 29.

3. Where the Circuit Court of the United States proceeds to exercise jurisdiction under the twenty-third section of the act of 31st May, 1870, entitled “ An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes,” an appeal will lie to the Supreme Court from its final decree. Ex parte Warmouth, 64.

4. That court has no power to issue the writ of prohibition in such a cause until such appeal is taken. Ib.

5. Where the claim on a fund in the Registry of the Admiralty of several mortgages secured in a body by one mortgage, exceeds $2000, an appeal to the Supreme Court will lie by the mortgagees in a body, though the claim of no one of them exceed the said sum. Rodd n. Heartt, 354.

When a defendant has filed a plea to the merits, and afterwards, by leave of the court, withdraws his plea, that does not withdraw his appearance, and he is still in court so as to be bound personally by a judgment rendered against him in the action. Eldred v. Bank, 545.

facie case for full pay under the joint resolution of Congress of July 26th, 1866, “for the relief of certain officers of the army.” United States v. Henry, 405.

2. It does not rebut this primA facie case to prove that the officer who refused to muster him in, alleged that he was not entitled to such muster because the company to which he was assigned as lieutenant was below the minimum in numbers, lb.

ASSIGNMENT OF ERRORS.

Must be made as the rules of court require, or the judgment will be affirmed. Ryan v. Koch, 9.

AUTHORITIES, JUDICIAL. See Precedent, Value of.

BANKRUPT ACT. See Fraudulent Conveyance.

1. Under the thirty-fifth and thirty-ninth sections of the, more than passive non-resistance in an insolvent debtor, is necessary to invalidate a judgment and levy on his property when the debt is due and he has no defence. Wilson v. City Bank, 489.

2. In such case there is no legal obligation on the debtor to file a petition in bankruptcy to prevent the judgment and levy, and a failure to do so is not sufficient evidence of an intent to give a preference to the judgment creditor, or to defeat the operation of the Bankrupt law. Ib.

3. Though the judgment creditor in such a case may know the insolvent condition of the debtor, his judgment and levy upon his property are not, therefore, void, and are no violation of the act. Ib.

4. A lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy, though commenced within four months after levy of the execution or rendition of the judgment. Ib.

5. Very slight circumstances, however (the value of which must be judged of in each case as it arises), which tend to show the existence of an affirmative desire on the part of the bankrupt to give a preference, or to defeat the operation of the act, may, by giving color to the whole transaction, render the lien void. Ib.

6. The twentieth section of the Bankrupt Act was not intended to enlarge the doctrine of set-off beyond what the principles of legal or equitable set-off previously authorized. Sawyer v. Hoag, 610.

7. Where personal property has been sold by one insolvent and immediately afterwards decreed a bankrupt, without any change of possession, and is thus void under the rule in Twyne’s Case by the laws of the State where the transfer is made, the assignee in bankruptcy may pursue it, and, as auxiliary to its recovery, ask that the sale by the bankrupt be annulled. Allen v. Massey, 352.

BILL IN EQUITY. See Laches-, Parties.

BILL OF LADING.

Under one to deliver nuts in bags and boxes “in good order and condition, dangers of the seas, fire, and collisions excepted,” a ship held liable for damage done to nuts marked “ in the cabin state-room, an stowed in the hold .on a voyage from San Francisco to New York,

BILL OF LADING {continued).

it being shown on the trial, by parol evidence (held, rightly received), to be the almost invariable practice to carry them in the cabin or in the cabin state-rooms in order to guard against injury, extremely liable to happen to them when stowed in the hold. The Star of Hope, 651.

1. Grantor can alone take advantage of. Holden v. Joy, 211.

2. What amounts to a condonation of. Ib.

“CERTIFICATE OF DEPOSIT.” See Internal Revenue, 5. “CHECK.” See Internal Revenue, 1, 5. CHEROKEES. See Breach of Condition; Indian Tribes.

The treaty of the United States with them, of the 29th December, 1835, and the supplemental article thereto of April 27th, 1868, considered at length, and the treaty declared to have made a valid sale to them of the “ Cherokee Neutral Lands;” and the sale to one Joy pursuant to the supplemental article declared to have passed a good title to Joy. Holden v. Joy, 211.

CIVIL RIGHTS. See Railroad Travel. COLLECTOR. See Smuggling; Trespass. COMMON CARRIER. See Railroad Travel.

1. Cannot stipulate for exemption from responsibility for the negligence of himself or his servants. Railroad Company v. Lockwood, 357.

2. The rule applies to the case of a drover travelling on a stock train to look after his cattle, and having a free pass for that purpose. Ib. CONFIDENTIAL RELATION. See Laches, 2. CONSTITUTIONAL LAW. See Judicial Comity, 2.

1. A municipal corporation is a portion of the sovereign power of the State, and is not subject to taxation by Congress upon its municipal revenues. United States v. Railroad Company, 322.

2. The clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State, applies to the records and proceedings of courts only so far as they have jurisdiction. Wherever they want jurisdiction the records are not entitled to credit. Board of Public Works v. Columbia College, 521.

3. No greater effect can be given to any judgment of a court of one State in another State than is given to it in the State where rendered. Ib.

4. “ Police Law,” passed by a State, distinguished from a “ Regulation of Commerce,” and sustained on the distinction between the two. Railroad Company v. Fuller, 560.

I. As applied to Statutes. See Indictment.

1. If the provisions of a special charter or a special authority derived from the legislature, can reasonably well consist with general legislation

CONSTRUCTION, RULES OF (continued).

whose words are not absolutely harmonious with it, the two are to be deemed to stand together; one as the general law of the land, the other as the law of the particular case. Slate v. Stoll, 425; and see Ex parte Atocha, 439.

2. Where a State had publicly promised that the notes of a bank in which it was the sole stockholder, and for whose bills it was liable, should be taken in payment of taxes and all other debts due to the State, and so impressed the credit of the State upon the notes. Held, that when the State afterwards intended to terminate this obligation (as it could do upon reasonably notice as to after-issued bills), it was bound to do it openly, and in language not to be misunderstood. As a doubtful or obscure declaration would not be a proper one for the purpose, so it was not to be imputed. State v. Stoll, 425.

II. As applied to Contracts. See Interpretation of Contract.

CONTRACT. See Offer.

1. What one party to a contract understands or believes is not to govern its construction unless such understanding or belief was induced by the conduct or declarations of the other party. Bank v. Kennedy, 19; and see Bailey v. Railroad Company, 97.

2. Where the validity of a contract made by an agent of the government is disputed by the government, and a commission, appointed by the government to pass on its validity reports, after inviting parties interested to appear before it, that the contract be confirmed to a partial extent and on conditions, or otherwise be held null, and the other party acts after this upon the conditions prescribed—Held, that his action is voluntary and that the original contract is modified. Mason v. United States, 67.

8. So where a claim is disputed by the government, and the claimant accepts a certain sum in settlement thereof and gives a receipt in full therefor, a subsequent action in the Court of Claims for any residue asserted to be due is barred. Sweeny v. United States, 75.

4. May be implied to restore proceeds (and the fraud of the act waived), where one has unlawfully taken and sold bonds belonging to another; the amount due being capable of ascertainment by computation, and being the principal and interest of the bonds taken and sold. Allen v. United States, 207.

5. Where, after a contract to do certain work within a time fixed has been completely entered into, the party for whom the work is to be done requests certain alterations in the work, to effect which necessarily requires a considerably longer time, the request to make such alterations implies such a reasonable extension of the time as is requisite to make them, and if the work be done within that reasonable time and the person ordering it was aware of the progress of the work and gave no notice that he would refuse to accept it unless done in the time originally limited, he is bound to take it when done. The doctrine applied to a government contract. Manufacturing Company v. Um e States, 592.

CONTRIBUTORY NEGLIGENCE. See Infant.

COUNSEL FEES.

Before a commissioner on the settlement of damages on an award of restitution, disallowed as excessive and unwarranted. The Nuestra Señora de Regla, 29.

COURT AND JURY.

1. The rule of law that the interpretation of written instruments is a question of law for the court, is applied with full force to agreements to be deduced from the correspondence of the parties, and the fact that the language of the letters containing the offer or acceptance is doubtful, does not relieve the court of this duty, or make the question one of fact for the jury. Goddard v. Foster, 123.

2. It is not error for a court, leaving to the jury the credibility of the testimony and their belief of certain material facts, to instruct the jury that they must, if they so believe, find for one party, though this may be all that is in contest. Stitt v. Huidekopers, 384.

3. Whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case is properly left to the jury. Railroad Company v. Stout, 657; and see Packet Company V. McCue, 508.

4. Whether a party is affected with “ sickness or disease ” within the meaning of the questions put to him prior to the issue of a life insurance policy, is a question, when medical testimony, is one way and that of acquaintances another, for the jury. Life Insurance v. Francisco, 672.

5. So are the answers, written out in the presence of the insurer’s agent under the obligation, in the policy, of the representatives of the assured, to furnish “due proof of the just claim of the assured;” if the assurer have received and kept them without objection to their sufficiency. Ib.

COURT OF CLAIMS.- See Set-off, 2.

1. Claims under treaty stipulations are excluded from the general jurisdiction of the Court of Claims conferred by the acts of Congress of February 24th, 1855, and March 3d, 1863; and when jurisdiction over such claims is conferred by special act, the authority of that court to hear and determine them, and of this court to review its action, is limited and controlled by the provisions of that act. Ex parte Atocha, 439.

2. Accordingly a decision of the Court of Claims, made under the act of February 14th, 1865, “for the relief of Alexander J. Atocha,” not giving an appeal, held final. Ib. * .

3. Since the passage of the act of March 3d, 1863, amending the act establishing the Court of Claims, objection cannot be made that a set-off set up by the United States is- unliquidated; the fifth section of that act covering this class of demands. Allen v. United States, 207. CRIMINAL LAW. See Embezzling Public Money; Indictment. CROSS-EXAMINATION. See Witness, 2.

CUSTOMS. See Smuggling; Navigation Laws.

DEPOSITION.

1. A notice, without date, to take depositions at a time specified, “in the city of Guilford, State of Maine,” insufficient to let in depositions taken in “ the town of Guilford it not appearing that the town and city were the same and the defect not being cured by attendance of the opposite party. Knode v. Williamson, 586.

2. Where a notice to take depositions at a place specified, informed the opposite party that they would be taken on a day named, and that the taking would be adjourned “ from day to day until completed,” and, a portion of the witnesses, having been examined (at whose examination the opposite party with his counsel attended), the taking of the examination of the others was adjourned until the next day, when it was again adjourned until the next succeeding day, and so on, from day to day till a particular day, when the taking of the testimony was completed in the absence of both the opposite party and his counsel. Held, that the notice was sufficient Ib.

DES MOINES RIVER GRANTS.

1. The history given of the legislation of the land grants for the improvement of the Des Moines River, and of the grants for railroad purposes, which have been supposed to conflict, and the decision in Wolcott v. The Des Moines Company (5 Wallace, 681), and Reily v. Wells (MS.), namely, “that the title to those lands never passed to the railroad company by the grant under which it claimed,” solemnly reaffirmed in three distinct cases. Williams v. Baker, 144; Cedar Rapids Railroad Co. v. Des Moines Navigation Co., Ib.; Homestead Company v. Valley Railroad, 153.

2. Nor did any railroad company, for whose benefit the act of Congress of May 15th, 1856 (11 Stat, at Large, 9), was made, or their grantees, as respected any lands granted by the said act of May 15th, 1856, or by the act of the legislature of Iowa, passed July 14th, 1856, become cestui que trusts or entitled otherwise to any portion of what are called the Indemnity Lands, which were granted by the act of Congress of July 12th, 1862. Homestead Company v. Valley Railroad, 153.

“ DRAFT.” See Internal Revenue, 5.

EMBEZZLING PUBLIC MONEY. See Indictment.

1. No exception or proviso of any kind is contained in the act of Congress of August 6th, 1846 (9 Stat, at Large, 63), making a paymaster in the army who embezzles public money guilty of felony. United States v. Cook, 168.

2. Therefore, a statute of limitations cannot be taken advantage of by demurrer. Ib.

3. The thirty-second section of the act of April 30th, 1790 (sometimes called the Crimes Act), enacts the only limitation applicable to the offence of a paymaster of the army indicted for such embezzlement. Ib.

EQUITABLE LIEN. See Vendor's Lien.

EQUITY. See Laches; Parties; Partnership.

1. Capital stock or shares of a corporation—especially the unpaid subscriptions to such stock or shares—constitute a trust fund for the benefit of the general creditors of the corporation, and this trust cannot be defeated by a simulated payment of the stock subscription, nor by any device short of an actual payment in good faith. Sawyer v. Hoag, Assignee, 610.

2. Equity will not exercise its jurisdiction to reach the property of a debtor applicable to the payment of his debts, unless the debt be clear and undisputed, and there exist some special circumstances requiring the interposition of the court to obtain possession of, and apply the property. Board of Public Works v. Columbia College, 521.

3. A decree in, reversed, as made on evidence not competent and in the face of answers responsive to the bill. Moore v. Huntington, 417.

4. Where a cross-bill and answers are filed in a case, and the decree undertakes to dispose of the whole case, it should dispose of the issues raised in them. Ib.

ERROR. See Court and Jury; Practice, 11-14.

ESTOPPEL. See Recitals.

This subject largely investigated, and the nature and effect, extent and limits of estoppels, both legal and equitable, defined. Branson v. Worth, 32.

EVIDENCE. See Deposition; Estoppel; Judgment; Necessaries in a Foreign Port, 1; North Carolina, 1; Practice, 1,3; Res Judicata, 2.

1. Conversations occurring during the negotiation of a loan, or other transaction, as well as the instruments given or received, being part of the res gesta, are original evidence and competent to show the nature of the transaction, and the parties for whose benefit it was made, where that fact is material. Bank v. Kennedy, 19.

2. Where the cashier of a bank effects a loan, and it becomes material to ascertain whether it was made for his own account or for the use of the bank, evidence of the negotiation and circumstances may be given for that purpose, whatever may be the form of the securities given or received, when the latter are introduced only collaterally in the cause. Ib.

3. When papers or documents are introduced collaterally in the trial of a cause, the purpose and object for which they were made, and the reason why they were made in a particular form, may be explained by parol evidence. Ib.

4. The purpose or quality of an act may be stated by a witness who was j present and cognizant of the whole transaction, as whether the delivery of money by one man to another was by way of payment or otherwise. I b.

5. Parol, how far received to explain a bill of lading. The Star of Hope, 651.

6. Parol, inadmissible to show how all the parties in interest understood a long and rather intricate transaction, from its commencement to its

consummation; the same being all in writing. Bailey v. Railroad Company, 96; and see Bank v. Kennedy, 19.

7. Evidence of fraud, not required to be more direct and positive than that of facts and circumstances tending to the conclusion that it has been practiced. Rea v. Missouri, 532.

8. A memorandum found upon the record of a patent and put there by some unknown person eight years after the patent had issued is inadmissible to contradict the record. Branson V. Worth, 82.

9. Evidence of a vendor of land, being positive, is sufficient to rebut a presumption, arising from taking a note with surety for the payment of the purchase-money of the land, that the vendor’s lien had been displaced. Cordova v. Hood, 1.

10. A decree in equity reversed as made on evidence not competent and in the face of answers responsive to the bill. Moore v. Huntington, 417. 11. On a question by a creditor of A. of a fraudulent assertion by B., of ownership of goods levied on as A.’s, any statements made by B. in the absence of C., which are afterwards assented to by the latter or were part of the res gesta, are evidence. Rea v. Missouri, 582.

12. Ordinarily, a witness who testifies to an affirmative is entitled to credit in preference to one who testifies to a negative. Stitt v. Huidekopers, 884.

18. When one party gives notice to another to produce on trial a written instrument, and the party who so receives the notice produces and offers to verify it by his oath, the other party cannot refuse to use that paper and introduce a copy in the first instance, on the allegation that the first is not genuine, although he might show wherein it was erroneous or defective after it was once introduced. Ib.

14. Although a written agreement between persons not parties to the suit may, as a general rule, be contradicted or explained by oral testimony, this does not apply to an attempt to make good by parol evidence a contract which the law requires to be made in writing to make it valid. Ib.

15. In an action of ejectment, a letter of the plaintiff’s grantor, written to the ancestor of the defendant, is not competent evidence to show that the ancestor entered into possession under the license of the plaintiff’s grantor, without some evidence that such letter was received or acted on about the time of such entry by the ancestor. Smiths v. Shoemaker, 630.

16. The mere fact that the date found on the letter corresponds with the time of such entry, is not of itself sufficient to show that the letter was written at that time. Ib.

17. Where the purpose is to impeach a witness, the proper question is what is the general “reputation” for truth of the witness? rather than what is his general “ character ” for truth ? Knode v. Williamson, 587. 18. The extent to which a cross-examination is carried not reviewable on error. Rea v. Missouri, 532.

FINAL DECREE. See Supersedeas.

The order of seizure and sale called “ executory process,” made in Louis-

FINAL DECREE (continued).

iana when the mortgage “imports a confession of judgment,” is in substance a decree of foreclosure and sale, and therefore a “ final decree;” especially when made after objections have been made and heard. Marin v. Lalley, 14.

FORECLOSURE. See Appeal, 1; Final Decree.

FOREIGN VESSEL. See Navigation Laws.

1. Evidence of it not required to be more direct and positive than facts and circumstances tending to the inference of it. Rea v. Missouri, 532.

2. Where a creditor of B. levied on certain goods as B.’s for which C. interposed a claim of ownership, held that an intimate personal and business relation between B. and C. having been shown, it was error to instruct the jury that it was immaterial as to the ownership of the goods how C. acquired his means, or whether his exhibit of them was correct or not. Ib.

A device to avoid the revenue acts, and whose operation does avoid them, is subject to no legal censure if the device be carried out by means of legal forms. United States v. Isham, 496.

FRAUDULENT CONVEYANCE. See Fraud.

Under the statute of frauds of Missouri, a sale of household furniture in a house occupied jointly by vendor and vendee, both usifig the furniture alike, and there being no other change of possession than that the vendor, after going around with the vendee and looking at the furniture and agreeing on the price, turned it over to the vendee and executed a bill of sale before a notary, both parties then, after the sale, occupying the house and using the furniture exactly as before, is void as against the vendor’s creditors. Allen v. Massey, 352.

GOVERNMENT CONTRACTOR. See Contract, 2, 3, 5. IMPEACHING WITNESS. See Witness, 1.

Where a person has unlawfully procured and sold securities belonging to another, the principal and interest of which is capable of being ascertained by computation, the owner from whom they have been taken, may waive the fraud in the conversion of the bonds, and claim as on an implied contract. Allen v. United States, 207.

INCOME TAX. See Internal Revenue, 3, 4.

INDIAN TRIBES. See Cherokees; Breach of Condition.

States; and a sale to them is properly made by treaty. Holden v. Joy,

indictment.

INDICTMENT (continued).

ing the offence, that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the accused is not within the exception. But if the language of the section defining the offence is so entirely separable from the exception, that the ingredients constituting the offence may be accurately and clearly defined without any reference to the exception, the indictment may omit any such reference. The matter contained in the exception is matter of defence, and to be shown by the accused. United States v. Cook, 168. INDORSER. See Negotiable Paper. INFANT. ,

Need not himself have been free from fault to entitle him to recover damages resulting from the fault of another. Railroad Company v. Stout, 657. INSOLVENT CORPORATION. See Equity, 1. INTEREST.

Where allowed, not under, contract, but by way of damages, the rate must be according to the lex fori. Goddard v. Foster, 124.

INTERNAL REVENUE. See Trespass.

1. The words “memorandum, check,” in that part of the schedule of instruments required by the statute of June 30th, 1864 (13 Stat, at Large, p. 298, § 158), to be stamped, which in the printed statute-books are printed with a comma between them, should read, “ memorandum-check,” with a hyphen instead of a comma. United States v. Isham, 496.

2. In settling whether an instrument should be stamped or not, regard is to be bad to its form, rather than to its operation. Though the form adopted may be a device to avoid the revenue acts, and though it may avoid them, yet if the device be carried out by means of legal forms it is subject to no legal censure. 1 b.

3. Under the 116th, 119th, and 122d sections of the Internal Revenue Act of June 30th, 1864, as subsequently amended, the interest due or dividends declared by any railroad or canal company, &c., which accrued prior to the 1st of January, 1870, were taxable under the act, though payable on or after the date named. Barnes v. The Railroads, 294.

4. This tax is a tax on the creditor and not upon the corporation. United States v. Railroad Company, 322.

5. Under the 110th section of the internal revenue act of 1864, as amended by the act of July 13th, 1866, taxing deposits in banks, an entry made in the depositor’s pass-book of a deposit or payment, is “ a certificate of deposit,” or “check,” or “draft” within the meaning of the section. Oulton v. Savings Institution, 109.

6. Under the proviso to that section, savings banks are not exempt from taxation if they have a capital stock, or if they do any other business than receiving deposits to be lent or invested for the sole benefit of the person making such deposits. Ib.

INTERNAL REVENUE {continued').

7. The fact that, by an agreement between the savings bank and the depositor, money deposited with the bank shall be reimbursed only out of the first disposable funds that shall come into the hands of the bank after demand, being a regulation adopted but for an emergency, and not such as essentially impairs the just claim of a depositor, does not change the case. Oulton v. Savings Institution, 109.

8. Under the 20th section of the act of July 20th, 1868, entitled “ An act imposing taxes on distilled spirits,” &c., in the absence of a distiller’s having appealed to the Commissioner of Internal Revenue (as under the 10th section of the act he may do), for the correction of any error made by the assessor in fixing the “true producing capacity” of his distillery, it is lawful for the government to assess and collect, as for a deficiency, the taxes upon the difference between the said “ producing capacity ” as estimated by the assessor and the amount of spirits actually produced by such distillery, even though the distiller have in good faith reported and paid taxes upon his whole production, and though such production have exceeded 80 per centum of the producing capacity aforesaid. The Collector v. Beggs, 182. INTERPRETATION OF CONTRACT.

Not to be governed by what either party to the contract understood or believed, unless such understanding or belief was induced by the conduct or declarations of the other party. Bank v. Kennedy, 19; and see Bailey v. Railroad Company, 96.

INTERPRETATION OF LANGUAGE. See Construction, Rules of. JUDGMENT. See Appearance; Res Judicata.

On a note or contract operates as a merger of it; and when the judgment is binding personally it can be introduced in evidence, and relied on as a bar to a second suit on the note. Eldred v. Bank, 545.

JUDICIAL AUTHORITY. See Precedent, Value of.

JUDICIAL COMITY. See Rebellion, 2.

1. In the construction of the statutes of a State, and especially those affecting titles to real property, where no Federal question arises, this court follows the adjudications of the highest court of the State, whatever may be the opinion of this court of its soundness. Walker v. The State Harbor Commissioners, 648 ; and see Allen v. Massey, 351.

2. A personal judgment, rendered in one State against several parties jointly, upon service of process on some of them, or their voluntary appearance, and upon publication against the others, is not evidence outside of the State where rendered of any personal liability to the plaintiff of the parties proceeded against by publication. Board of Public Works v. Columbia College, 521.

JURISDICTION. See Appeal; Constitutional Law, 2, 3.

I. Of the Supreme Court of the United States.

(a) It has jurisdiction—

the 5th of February amendatory of it, if it has, beyond all question, decided every question at issue between the parties which it is necessary to decide in order to dispose of the case on its merits, and the State court has not carried out its mandate but in effect evaded it, on a second writ of error to “proceed to a final judgment and award execution.” Tyler v. Maguire, 254.

2. Under the same sections, to review the judgment of a State court when the writ is issued to the highest court of the State in which a decision of the case could be had, even if that court be an inferior court of the State. Miller v. Joseph, 655.

II. Of the Circuit Courts.

(b) They have jurisdiction—

3. When objection is taken on the ground of citizenship, provided the parties to whose citizenship the objection is taken be not indispensable parties. Horn v. Lockhart, 570. JURY. See Court and Jury. LACHES.

1. Where a bill is filed by a third party to set aside, as fraudulent, completed judicial proceedings, regular on their face—the bill being filed five years after the judicial proceedings which it is sought to set aside have been completed—the cause of so considerable a delay should be specifically set out. And if ignorance of the fraud is relied on to excuse thè delay it should be shown specifically when knowledge of the fraud was first obtained. Harwood v. Railroad Company, 78.

2. A bill by cestui que trusts was dismissed, where all the grounds of action had occurred between twenty and thirty years, and the alleged breach of trust had taken place thirty-seven years before the bill was filed, and the trustee was dead. This, although the cestui que trusts were women and the trustee a lawyer, who had married their half-sister. Hume v. Beale's Executrix, 336. LANDLORD AND TENANT.

Where a lessee, after letting to another, reserving a rent, has assigned all his “right, title, and interest” in the lease, and “authorized the assignee to sue for, collect, and recover the lease, and the rights to the rent reserved under the same,” declaring “it to be distinctly understood ” that it is the object and purpose to put the assignee in his “ place and stead, so far as concerns his rights under the lease”—the lessee, on a claim against him by the sub-tenant, cannot set up . a claim for arrears of rent due to him at the time when he assigned the lease. The transfer has carried them to the assignee. United

States v. Hickey, 9. . LEASE. See Landlord and Tenant. LEGAL TENDER. See Practice 17; South Carolina. “ LICENSE TO TRADE.” See Trading with Public Enemy, 2.

LIEN. See Vendor’s Lien.

LIFE INSURANCE. See Court and Jury, 4, 5.

Against an officer of the government, in the absence of statutory provision to the contrary, abates on his death or retirement from office. His successor in office cannot be brought in by way of amendment of the proceeding or on an order for the substitution of parties. United States v. Boutwell, 604.

Distinguished from war risks. Goodwin v. United States, 515.

The rule that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury,—whether a true rule or not,—has no application when one of the persons employed and injured is a boy of tender years employed as a helper under the superintendence of a full-grown man of mature years, and required by the master to obey his orders. Railroad Company v. Fort, 553. MEMORANDUM-CHECK. See Internal Revenue, 1, 2.

A judgment on a note or contract merges the note or contract, and no other suit can be maintained on the same instrument. Eldred v. Bank, 545.

Is not subject to taxation by Congress on its municipal revenues. United States v. Railroad Company, 322.

MUTUAL DEBTS AND CREDITS. See Set-off, 1.

1. A receiver of one, appointed by the comptroller of the currency under the fiftieth section of the National Banking Act, may sue for demands due the bank in his own name as receiver, or in the name of the bank. Bank v. Kennedy, 19.

2. In order to sue for an ordinary debt due the bank, he is not obliged to get an order of the comptroller of the currency. It is a part of his official duty to collect the assets. Ib.

navigation laws.

A vessel built in the British Province of Canada, but owned wholly by citizens of the United States, if engaged in transporting the products of Canada into ports of the United States, may be forfeited under the act of March 1st, 1817 (3 Stat, at Large, 351). The Merritt, 582.

necessaries in a foreign port.

1. Where advances are made to a captmn in a foreign port, upon his request, to pay for necessary repairs or supplies to enable his vessel to prosecute her voyage, or to pay harbor dues, or Tor pilotage, towage, and like services rendered to the vessel, the presumption of law, in

NECESSARIES IN A FOREIGN PORT {continued).

the absence of fraud or collusion, is that they are made upon the credit of the vessel as well as upon that of her owners, and the presumption can be repelled only by proof that the master was in possession of funds applicable to the expenses, or of a credit of his own or of the owners of his vessel upon which funds could be raised by the exercise of reasonable diligence, and that the possession of such funds or credit was known to the party making the advances, or could readily have been ascertained by proper inquiry. The Emily Souder, 667.

2. Liens for such advances have priority over existing mortgages to creditors at home. Ib.

NEGLIGENCE. See Infant; Railroad Travel, 1.

1. The distinction between “gross” and ordinary, as applied to common carriers, unnecessary. Railroad Company v. Lockwood, 357.

2. Railroad companies not exempt from responsibility to strangers for injuries arising from their negligence or from tortious acts. Railroad Company v. Stout, 657.

NEGOTIABLE PAPER.

1. When an indorser of a note has the maker’s funds in his hands only as arising from the profits of a business in conducting which he was a partner of the maker, and is simply authorized to apply the funds so in his hands to the payment of notes at their maturity, and thus may have parted with them a certain time after the maturity,—it is error to takeaway from the jury the question whether the note was legally presented to the maker for payment, and whether notice of dishonor was legally given to the indorser. Ray v. Smith, 412.

2. What request the holder may properly in such case make of the court. Ib.

NORTH CAROLINA.

1. Under the statutes of, no copy of a registered copy of a deed can be read in evidence in place of the original, even if it be proved that the original is lost. Olcott v. Bynum, 44.

2. There not being in that State any statutory provision relating to express trusts, “ manifested and proved,” similar to the provision in the seventh section of the Statute of Frauds, such trusts in that State stand as at common law. Ib. NOTICE. See Deposition; Rebellion, 3.

1. Where inquiry is a duty the party bound to make inquiry is affected with all the knowledge which he would have got had he inquired. Cordova v. Hood, 1.

2. Through newspapers not necessary to give effect to a proclamation of the President. It takes effect when signed and sealed with the seal of the United States, officially attested. Lapeyre v. United States, 191. .

NOTICE OF NON-PAYMENT. See Negotiable Paper.

NOTICE TO PRODUCE PAPERS. See Evidence, 13.

NUTS. See Bill of Lading.

OFFER.

1. An offer to sell at a fixed price, whether accompanied with an agency to sell to others or not, may be revoked at any time prior to the acceptance of the offer, unless there is an express agreement on good consideration to accept within a limited time, or when other acts are done which the person making the offer consents to be bound by. Stitt v. Huidekopers, 884.

2. An offer to take $40,000 in cash is not accepted so as to bind the party by a contract which leaves the buyer at liberty to withdraw by forfeiting a deposit of $10,000, or pay the remainder within sixty days. Ib.

OFFICER OF THE ARMY. See Army Officer.

OPINIONS OF THE COURT. See Precedent, Value of.

1. Where a question brought to this court is wholly one of the weight of evidence, involving no controverted proposition of law, the court will content itself with announcing fully its conclusions upon the evidence. Harrell v. Beale, 590.

2. May be assisted, in regard to an ancient transaction, by a judgment of another court, upon its sitting at the scene of the transaction, though such judgment be not capable of being pleaded as res judicata. Hume v. Beale's Executrix, 336.

PAROL EVIDENCE. See Evidence, 1, 5, 6.

PARTIES. See Practice, 18.

1. Where a bill is filed by a third party to set aside, as fraudulent, completed judicial proceedings, regular on their face, the plaintiff in those proceedings should be brought in as a party. Harwood v. Railroad Company, 78.

2. Where a person sues in chancery as administrator of a deceased partner, to have an account of partnership concerns, alleging in his bill that he is the sole heir of the deceased partner, the fact that he is not so does not make the bill abate for want of necessary parties. Moore v. Huntington, 417.

PARTNERSHIP.

1. On a bill by the representatives of a deceased partner against surviving partners for an account, these last should not be charged with the sum which the partnership assets at the exact date of the deceased partner’s death were worth, but only with such sum as by the use of reasonable care and diligence they could get for them in closing the partnership business. Moore v. Huntington, 417.

2. Nor be charged with the value of real estate of the partnership the title to which is left by the decree charging them in the heirs of the deceased partner. Ib.

PATENT.

I. General Principles Relating to.

tured product, a purchaser of such instrument or machine, when rightfully bought within the prescribed limits, acquires by such purchase the right to use it anywhere, without reference to other assignments of territorial rights by the same patentee. Adams v. Burke, 453.

2. The right to the use of such machines or instruments stands on a different ground from the right to make and sell them, and inheres in the nature of a contract of purchase, which carries no implied limitation of the right of use within-a given locality. Ib.

8. In a suit by a patentee, for damages against an infringer, the plaintiff can recover only for actual damages shown by evidence. Accordingly an instruction to award to the plaintiff “such sum as the jury should find to be required to remunerate him for the loss sustained by the wrongful act of thé defendants, and to reimburse him for all such expenditures as have been necessarily incurred by him in order to establish his right,” is erroneous as too broad and vague. Philp v. Nock, 460.

4. Where a claim in a patent uses general terms of reference to the specification, such as “ substantially in the manner and for the purpose herein set forth,” although the patentee will not be held to the precise combination of all the parts described, yetrhis claim will be limited, by reference to the history of the art, to what was really first invented by him. Carlton v. Bokee, 463.

5. General claims inserted in a reissued patent will be carefully scrutinized, and will not be permitted to extend the rights of the patentee beyond what is shown by the history of the art to have been really his invention. If made to embrace more the claim will be void. Ib.

6. One void claim, if made by inadvertence and in good faith, will not vitiate the entire patent. Ib.

PERSONAL PROPERTY, SALE OF. See Fraudulent Conveyance.

PERSONS OF COLOR. See Railroad Travel, 2.

PLEADING. See Indictment. “POLICE LAW.”

Passed by a State, distinguished from a “ regulation of commerce,” and sustained on the distinction between them, characteristic of a “police law.” Railroad Company v. Fuller, 560.

PRACTICE. See Appeal; Appearance; Court and Jury; Final Decree; Jurisdiction; Mandamus; Parties; Supersedeas; Trespass, 2; Witness.

I. In the Supreme Court.

(a) In cases generally—

1. In passing upon the questions presented in a bill of exceptions the Supreme Court will not look beyond the bill itself. Evidence or statements of fact not contained in it, nor made a part thereof, though appended thereto, will not be regarded. Bank v. Kennedy, 19; Reed v. Gardner, 409. t

2. A judgment will be affirmed when the plaintiff in error files no assignment of errors or brief, as required by the rules of court. Ryan v. Koch, 19.

PRACTICE (continued).

3. Though a party may have taken exception before a trial to the refusal of a court then to suppress a deposition, yet if he allow the deposition to be read on the trial without opposition, he cannot avail himself, in this court, of his previous exception. Ray v. Smith, 412.

4. When a proceeding below is in its essential nature a foreclosure of a mortgage in chancery (which the order of seizure and sale called “ executory process ” made in Louisiana, when the mortgage “ imports a confession of judgment” is decided here to be), an appeal is the only proper mode of bringing it to the Supreme Court. Marin n. Lalley, 14.

5. In the absence of statutory provision to the contrary, a mandamus against an officer of the government abates on his death or retirement from office. His successor in office cannot be brought in by way of amendment of the proceeding or on an order for the substitution of parties. United States v. Boutwell, 604.

6. When a case is one wholly of the weight of evidence, the Supreme Court does not consider itself bound to do more than announce, without assigning reasons, its judgment on it. Harrell v. Beale, 590.

7. When a court below, on a claim embracing several items, rejects some but allows others, against which allowance the defendant alone appeals, the Supreme Court will not give consideration to the items rejected and against whose rejection the plaintiff has not appealed, except so far as may be necessary for a proper understanding of the item allowed. United States v. Hickey, 9.

8. Extent to which a witness may be examined, not reviewable on error. Rea v. Missouri, 532.

9. When in an action of ejectment, a letter of the plaintiff’s grantor written to the ancestor of the defendant is offered by the plaintiff, to show that the ancestor entered into possession under the license of the plaintiff’s grantor—no evidence having been given that the letter was received or acted on about the time of such entry by the ancestor—a general objection below that such letter is a declaration of the grantor of his own rights is sufficient. Smith v. Shoemaker, 630. 10. If, in the appellate court, the party introducing such a letter relies on any special circumstances as an exception to the rule (as that it was part of the res gestae), that circumstance must appear in the bill of exceptions or by the record in some other manner. The admission will be held to be erroneous unless this appears. Ib.

11. When it is argued in such court that an error in the court below worked no injury to the party complaining, the fact»that it worked no injury must be made to appear beyond question. If it is only to be seen by a mere preponderance of evidence, and the error is substantiated, the judgment must be reversed. Ib.

12. Special circumstances of an alleged misleading of the court and opposite counsel by a statement of counsel, considered as a reason for refusing to reverse a judgment manifestly erroneous, and found to be insufficient. Eldred v. Bank, 545.

the judgment of a State court must be jssued to whatever court is the highest court of the State in which a decision of the case could be had, even if that court be an inferior court of the State. Miller v. Joseph, 655.

14. A writ of error will not lie to review the action of a court in enforcing its reasonable rules. Life Insurance Company v. Francisco, 672.

(6) In admiralty—

15. In prize cases, wherever it appears that notice of appeal or of intention to appeal to the Supreme Court was filed with the clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed whenever the purposes of justice require it. The Nuestra Señora de Regia, 30.

II. In Circuit and District Courts. 16. Where a cross-bill and answers are filed in a case and the decree undertakes to dispose of the whole case, it should dispose of the issues raised in them. Moore v. Huntington, 417.

17. Where advances for necessaries to a vessel in a foreign port are made in gold, and drafts for the amount on the owners show that the payment to the parties making the advances is to be also in gold, the court may decree the amount in like currency. The Emily Souder, 667. 18. When objection is taken to the jurisdiction of the Circuit Court of the United States by reason of the citizenship of some of the parties to a suit, the question is whether to a decree authorized by the case presented they are indispensable parties. If their interests are severable from those of other parties, and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them. Horn v. Lockhart, 570.

III. In the District Courts of the United States. 19. A district judge, sitting as the Circuit Court, may allow an appeal from his own decree. Rodd v. Heartt, 354.

IV. In the Court of Claims. 20. Decisions under special acts not giving appeal, held final. Ex parte Atocha, 439.

V. In the highest * Court of a State. 21. It is not error in an appellate State court giving judgment against an appellant to include in the judgment sureties in the appeal and writ of error bond. By signing the bond they become voluntary parties to the bond and subject themselves to the decree. Moore v. Huntington, 417.

PRECEDENT, VALUE OF.

tained by collusion, when the judgment is cited in another case only to establish principles of law, and not by way of evidence or estoppel. Williams v. Baker, 144.

PREFERRED AND COMMON STOCK.

A series of agreements, &c., in regard to such sorts of stock interpreted in a case, special in character, of an embarrassed corporation, seeking to extricate itself from its difficulties. Bailey v. Railroad Company, 96. PRESUMPTION. See Necessaries in a Foreign Port) 1.

PRINCIPAL AND AGENT. See Railroad Travel, 1. PRIZE.

A Spanish-owned vessel on her way from New York to Havana put in distress, by leave of the admiral commanding the squadron, into Port Royal, S. C., then in rebellion, and blockaded by a government fleet, and was there seized as prize of war and used by the government. . . . She was afterwards condemned as prize, but ordered to be restored. She never was restored. Damages for her seizure, detention, and value being awarded. Held, that clearly she was not lawful prize of war or subject of capture; and that her owners were entitled to fair indemnity, though it might be well doubted whether the case was not more properly a subject for diplomatic adjustment than for determination by the courts. Nuestra Señora de Regla, 29.

PROCLAMATION OF THE PRESIDENT.

Takes effect when signed by the President and sealed with the seal of the

United States officially attested. Publication in newspapers not necessary. Lapeyre v. United States, 191.

PRODUCTION OF PAPERS ON NOTICE. See Evidence, 13. PROHIBITION. See Appeal, 4. PUBLIC LAW.

What constitutes trading with an enemy and when done through an agent. United States v. Lapene, 601.

QUESTIONS OF LAW AND FACT. See Court and Jury. BAILROAD TRAVEL.

1. A railroad corporation managed on the joint account of a receiver of part of it and the lessees of the remaining part, held liable for injuries committed, by a servant of the parties working it, upon the person of a passenger whom such servant improperly expelled from a car, into which the passenger had entered; the railroad corporation having allowed tickets to be issued in its own name, in the same form as it had done before the road was leased, and the passenger, for aught that appeared, not knowing that the railroad corporation was not itself managing the road. Railroad Company v. Brown, 445.

meant that persons of color should travel in the same cars that white ones did, and along with them in such cars. Railroad Company v. Brown, 445.

REAL ESTATE. See Des Moines River Grants; Indian Tribes; Landlord and Tenant; Resulting Trust; Estoppel; Rule in Shelley's Case; Rebellion, The, 3; Taxes; Trustee's Sale; Use and Occupation; Vendor's Lien.

REBELLION, THE- See Trading with Public Enemy.

1. To a suit by legatees to compel an executor to account for moneys received by him from sales of property belonging to the estate of his testator, and to pay to them their distributive shares, it is no answer for the executor to show that he invested such funds in the bonds of the Confederate government by authority of a law of the State in which he was executor, and that such investment was approved by the decree of the probate court having settlement of the estate. Horn v. Lockhart, 571.

2. The acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. Ib.

3. Judicial proceedings during the war of the rebellion, within lines of the Federal army, by a private person on a mortgage, ending in a judgment and sale of mortgaged premises, against one who had been expelled by the military authority of the United States into the so-called Confederacy, and who had no power or right to return to his home during the rebellion, held null, and a judgment which refused to vacate them reversed. Dean v. Nelson (10 Wallace, 172) affirmed. Lasere v. Rochereau, 437.

RECEIVER OF NATIONAL BANK. See National Banks. RECITALS. See Estoppel.

In a private act of legislature bind none but those who apply for the act.

Branson v. Worth, 32.

REGISTRY LAWS. See Navigation Laws. “REGULATION OF COMMERCE.”

One, distinguished from a “police law;” and the latter, passed by a State, sustained as not being the former. Railroad Company v. Fuller, 560.

RENT. See Landlord and Tenant.

RES GESTAE. See Evidence, 1, 11.

RES JUDICATA. See Judgment.

which a conclusion at a later day in accordance with its result may be assisted. Hume v. Beale's Executrix, 336.

2. A personal judgment, rendered in one State against several parties jointly, upon service of process on some of them, or their voluntary appearance, and upon publication against the others, is not evidence outside of the State where rendered of any personal liability to the plaintiff of the parties proceeded against by publication. Board of Public Works v. Columbia College, 521.

RESULTING TRUST.

A resulting trust of land does not arise in favor of one of two joint purchasers, unless his part is some definite portion of the whole, and what money he pays is paid for some aliquot part of the property, as a fourth, third, or a moiety. Nor can it arise in any case for more than the money actually paid; nor be created by advances or funds furnished after the time when the purchase is made. ' Olcott v. By-Hum, 44.

RULE IN SHELLEY’S CASE.

Held not to apply to a case where a testator gave his estate, both reahand personal, to his son, R. T., “ during his natural life, and after his death to his issue, by him lawfully begotten of his body, to such issue, their heirs and assigns forever;” with devises over, in case R. T. should die without lawful issue. Daniel v. Whartenby, 639.

RULE OF COURT. See Practice, 14.

One that “in causes tried by a jury, any special charge or instruction asked for by either party, must be presented to the court in writing, directly after the close of the evidence, and before any argument is made to the jury, or it will not be considered,” is a reasonable rule; and the enforcement or disregard of it is matter of discretion with the court making it. Life Insurance Company v. Francisco, 673.

SALE. See Fraudulent Conveyance; Trustee's Sale. SAME CAUSE OF ACTION. See Res Judicata.

Judgment on a note or contract operates as a merger of it, and when the judgment is binding personally, it can be introduced in evidence and relied on as a bar to a second suit on the note. Eldred v. Bank, 545. SERVICE OF WRIT. See Judicial Comity, 2; Rebellion, 3.

1. Under a statute requiring that a writ shall be served by delivering a copy to the defendant, or by leaving the same with some white person of the family, “ at the dwelling-house of such defendant;” a leaving of the declaration with such a white person of the family when he is at a distance of one hundred and twenty-five feet from the house and in a corner of the yard of the house, is not good. Kibbe v. Benson, 624.

one of the directors. Held, sufficient service, in the absence of proof, that J. S. was not one of the directors at the time of service; and under some special circumstances. Railroad Company v. Brown, 445. SET-OFF.

1. A stockholder indebted to an insolvent corporation for unpaid shares cannot set off against this trust fund for creditors a debt due him by the corporation. The fund arising from such unpaid shares must be equally divided among all the creditors. Sawyer v. Hoag, 610.

2. A claim by the United States for the proceeds of bonds unlawfully procured from it by a person insolvent, and sold, consisting of the principal and interest of the bonds, and being thus capable of ascertainment, is sufficiently liquidated, though it have never been judicially determined, to be the subject of set-off. Allen v. United States, 207. SHIPS. See Bill of Lading; {Necessaries in a Foreign Port. SMUGGLING.

Under the fifteenth section of the act of July 18th, 1866, providing for the sale of property used in smuggling goods into the United States, the expense of keeping which would reduce the proceeds of its sale, the collector may publicly advertise it for sale at once, on seizure, and proper certificate by appraisers of its value and character, and, after not less than one week’s notice, sell it. Conway v. Stannard, 398. SOUTH CAROLINA.

Different sections of the statutes of the State of, relating to its banks construed, and the bills of the Bank of the State, though issued after December 20th, 1860, and not paid in specie, held to have been a legal tender for the payment of taxes due the State in 1870. State v. Stoll, 425.

STAMPS. See Internal Revenue, 2.

STATUTE OF FRAUDS. See North Carolina, 2.

STATUTES OF LIMITATION.

In construing them, they must, so far as they affect rights of action in existence when the statutes are passed, be held, in the absence of contrary provision, to begin when the cause of action is first subjected to their operation. Sohn v. Waterson, 596.

STATUTES OF THE UNITED STATES.

The following, among others referred to, commented on and explained:

1789. September 24th. See Jurisdiction.

1790. April 30th. See Embezzling Public Money.

1792. December 31st. See Navigation Laws.

1797. March 3d. See Set-off.

1804. March 26th. See Embezzling Public Money.

1807. February 24th. See Trespass \1817. March 1st. See Navigation Laws. \1836. July 4th. See Patent. \1846. August 6th. See Embezzling Public Money.

STATUTES OF THE UNITED STATES {continued}.

1846. August 8th. See Des Moines River Grants.

1855. February 24th. See Court of Claims.

1856. May 15 th. See Des Moines River Grants.

1861. July 13 th. See Trading with the Public Enemy-.

1862. July 12th. See Des Moines River Grants.

1863. March 3d. See Court of Claims; Army Officer.

1864. June 3d. See National Banks.

1864. June 30th. See Internal Revenue, 7.

1864. July 2d. See Trading with the Public Enemy.

1866. June 15th. See 11 Regulation of Commerce.”

1866. July 18th. See Smuggling.

1866. July 26th. See Army Officer.

1867. February 5th. See Jurisdiction.

1867. March 2d. See Bankrupt Act; Internal Revenue.

1868. July 20th. See Internal Revenue, 8.

1870. May 31st. See Appeal, 3.

1870. July Sth. See Patent.

STOCKHOLDERS IN INSOLVENT CORPORATIONS. See Equity, 1;

Set-off, 1.

1. Where the Circuit Court “decrees” that a fund in court belongs to certain persons named, and that their claims be paid, and (the fund not being large enough to pay all the persons in full) orders a distribution by a commissioner, in accordance with the principles laid down by the court, and on a table of distribution being repqrted by the commissioner, recites that the commissioner had submitted a distribution based upon the decree theretofore made by the court, and then “orders and decrees” that the fund be distributed according to it, the “decree” may be considered as of either date as respects the matter of a supersedeas. Rodd v. Heartt, 354.

2. As respects the question whether the appeal was in time to operate as a supersedeas, the case is regulated by the act of June 1st, 1872, which allows sixty days, and not by the Judiciary Act of 1789. Ib. SURETIES IN APPEAL. See Practice, 21.

TAXES. See Internal Revenue, 3-8; South Carolina.

1. A party who has no title to lands cannot acquire one by mere payment of taxes on them. Homestead Company v. Valley Railroad, 153.

2. A party by paying taxes which another party ought to pay, but does not pay, cannot make such second party his debtor by having stepped in and paid the taxes for him, without being requested so to do. Ib. TENDER, LEGAL. See Practice, 17; South Carolina.

TEXAS. See Vendor's Lien, 5. TITLE TO LANDS. See Rebellion, 3.

Cannot be acquired by the mere payment of taxes. Homestead Company v. Valley Railroad, 153.

TRADING WITH PUBLIC ENEMY.

1. What constitutes. May be through an agent. United States v. Lapene, 601.

2. A sale made without “a license to trade,”’ by a loyal citizen of the United States, on the 6th of March, 1865, when Savannah was occupied by the Federal troops, to a loyal citizen of New York, of cotton which had been returned by the owner, registered, and taken into possession by the United States, and sent for sale to New York under the Captured and Abandoned Property Act, AeZrf.void, although the bill of sale of the cotton authorized the attorney of the vendors to receive the proceeds of sale and pay them to the vendees, and was thus argued to have been not a sale of the cotton at Savannah, Georgia, but a sale of claim in Washington, D. C. Cutner v. United States, 517.

3. Held further, the full consideration-money of the purchase having been paid, that the vendor could not sustain a suit in the Court of Claims for the proceeds of the cotton, for the use of the vendee. Ib. TRANSFER OF LEASE, EFFECT OF. See Landlord and Tenant. TRAVEL ON RAILROAD. See Railroad Travel.

TRESPASS.

1. Will not lie against a collector of internal revenue for improperly seizing and carrying away goods as forfeited, where, on information afterwards filed, the marshal has returned that he has seized and attached them, and where after a trial absolving them a certificate of probable cause has been granted under the eighty-ninth section of the act of February 24th, 1807, and where the owner of the goods has never made any claim of the collector for them except by bringing the action of trespass. Averill v. Smith, 82.

2. The claimant of the goods after a trial where probable cause has been certified, ought to move the court for the necessary orders to cause the property to be returned to the rightful owners, if the court have itself omitted to make such an order. It is not the duty of either the marshal or collector to do so. Ib.

TRUST. See North Carolina, 2; Resulting Trust; Trustee's Sale.

TRUSTEE’S-SALE.

1. A deed of trust with power of sale (a deed, therefore, in the nature of a mortgage), provided that money should be paid in three equal instalments, and that in default of payment of any one “ that may grow due thereon,” all the mortgaged premises might be sold and a deed of the premises made to the purchaser, and that it should be lawful for the trustee “ out of the money arising from such sale to retain the principal and interest which shall then be due” . . . rendering the overplus to the mortgagor. Held {the property being incapable of advantageous sale in parts), that when one instalment fell due, the trustee had a right to sell, and though there was a surplus above what was necessary to pay the instalment due, yet thafrthe trustee might reserve the whole and apply it to the residue of the mortgage debt. Olcott v. Bynum, 44.

TRUSTEE’S SALE (continued).

2. A sale of a large and valuable property under a deed of trust in the nature of a mortgage, held under the proofs to have been properly made in a body, and for cash alone, and on the premises themselves, though they were in a remote part of Virginia. Olcott v. Bynum, 44.

TRUTH AND VERACITY, REPUTATION FOR. See Witness, 1.

USE AND OCCUPATION.

One who enters into possession of land in virtue of an agreement that he is to be a purchaser of it, cannot be held liable for, if the purchase be concluded. Carpenter v. United States, 489. VENDOR’S LIEN.

1. Exists as against a purchaser, having notice of the deed, in those States where such a lien prevails (as in Texas), when the deed shows on its face that the consideration is yet to be paid. Cordova v. Hood, 1.

2. Taking a note from the vendee with surety, though presumptively an abandonment of the lien, not so absolutely. The presumption may be rebutted. Ib.

8. The vendor’s testimony, if positive, sufficient to do this. Ib.

4. Part payment of such a note—the note being for the payment of all and every part of the purchase-money so long as it remains unpaid—and taking a new note payable at the same time and in the same way as the original note, and the destruction of this last, does not displace the lien. Ib.

5. By the laws of Texas, an assignment of a note given for the purchase-money of real estate carries a vendor’s lien. Ib.

VESSEL OF THE UNITED STATES. See Navigation Laws.

VOID PROCEEDINGS. See Rebellion, 8; Service of Writ, 1.

WAIVER OF EXCEPTION. See Practice, 1, 3.

WAIVER OF FRAUD. See Implied Contract.

WAIVER OF NOTICE OF NON-PAYMENT. See Negotiable Paper.

WAR RISKS.

Distinguished from marine risks. Goodwin n. United States, 515. WITHDRAWAL OF APPEARANCE. See Appearance.

WITNESS.

1. Where the purpose of testimony is to impeach a witness for want of veracity, it is more proper to ask the person on the stand what is the general “ reputation ” for truth of the witness sought to be impeached, than to ask what is his general “ character,” &c. Knode v. Williamson, 587.

2. Cross-examination (including that of party who puts himself on the stand) matter within the discretion of the court below, and not, therefore, reviewable on error. Rea v. Missouri, 532. WRIT. See Service of Writ.

WRIT OF ERROR. See Appeal, 1; Jurisdiction, 1, 2; Practice, 13, 14.