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ARMY OFFICER (continued).
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
2. It does not rebut this prima facie case to prove that the officer who re-
fused to muster him in, alleged that be was not entitled to such muster
because the company to which he was assigned as lieutenant was be-
low the minimum in numbers. Ib.
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 pas-
sive 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 pro-
ceedings in bankruptcy, though commenced within four months after
levy of the execution or rendition of the judgment. 16.
5. Very slight circumstances, however (the value of which must be judged
of in cach 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 immedi-
ately afterwards decreed a bankrupt, without any change of posses-
sion, 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 condi.
tion, dangers of the seas, fire, and collisions excepted,'' a ship held
liable for damage done to nuts marked "in the cabin state-room," and
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,
BREACH OF CONDITION.
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.
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. Railroal Company, 322.
2. The clause of the Federal Constitution which requires full faith and
credit to be given in each State the records nd judicial proceedings
of every other State, applies to the records and proceedings of courts
only so far as they have jurisdiction. Wherever they want jurisdic-
tion 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. 10.
4. “ Police Law," passed by a State, distinguished from a “ Regulation of
Commerce," and sustained on the distinction between the two. Rail-
road Company v. Fuller, 560.
CONSTRUCTION, RULES OF.
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 reasonable 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 sec 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 in-
terested 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.
3. 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.
6. 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 altera-
tions 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 orig-
inally limited, he is bound to take it when done.
The doctrine ap-
plied to a government contract. Manufacturing Company v. United
CONTRIBUTORY NEGLIGENCE. See Infant.
Before a commissioner on the settlement of damages on an award of res-
titution, 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 tes-
timony 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 mean-
ing 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 clain of the assured;" if
the assurer have received and kept them without objection to their
COURT OF CLAIMS. See Set-off, 2.
1. Claims under treaty stipulations are excluded from the general juris-
diction of the Court of Claims conferred by the acts of Congress of
February 24th, 1855, and March 3d, 1863; and when jurisdict: in
over such claims is conferred by special act, the authority of that
court to hear and determine them, and of this court to review iis
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 estab-
lishing 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.
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 examina-
tion the opposite party with his counsel attended), the taking of the
examination of the others was adjourned until the next day, when it
wus aguin 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 improve-
ment of the Des Moines River, and of the grants for railroad pur-
poses, which have been supposed to conflict, and the decision in Wol-
cott 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
reatfirmed in three distinct cases. Williams v. Baker, 144; Cedar
Rapids Ruilroad Co. v. Des Moines Navigation Co., Ib.; Homestead
Cumpany 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 Con-
gress 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, 1816* (9 Stat. at Large, 63), making a paymaster in
the army who embezzles public money guilty of selony. United
States v. Cook, 168.
2. Therefore, a statute of limitations cannot be taken advantage of by
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.