5. In an action, tried in 1890, to recover duties alleged to have been
illegally exacted in 1861 on an importation of bareges, grenadines,
maretz, and merinos, the plaintiff introduced no samples of the
imported goods, nor any evidence as to their loss or destruction, and
gave no reasons why they were not preserved and produced. He
showed to one of his witnesses samples of grenadines, bareges, etc.,
but without connecting them in any way with the importations, and
questioned the witness concerning them. Held, that their admission
tended to mislead the jury, and was error; and that such evidence
came within the rule that "a fact which renders the existence or non-
existence of any fact in issue probable by reason of its general resem-
blance thereto, and not by reason of its being connected therewith, is
deemed not to be relevant to such fact." Ib.
See POST OFFICE DEPARTMENT.
1. If, in an action at law upon a written contract, oral evidence offered
by the defendant that the writing signed by the parties was not
intended as a contract, nor understood by either party to be binding
as such, is excluded by the court, upon the plaintiff's objection, as
incompetent to control the written contract, he is estopped, at the
hearing of a bill in equity thereupon filed by the defendant for an
injunction against the prosecution of the action at law, to object that
the evidence was admissible at law only. Michels v. Olmstead, 198.
2. In determining whether the judgment plaintiff and real owner of an
assigned judgment is estopped to assert his ownership as against a
second assignee, on the ground that the second assignee occupies the
position of a purchaser for value in good faith and without notice
and in reliance on the apparent ownership, the amount of the con-
sideration paid by him is an important fact. Baker v. Wood, 212.
3. When such amount is greatly disproportionate to the true value of the
judgment, that fact may authorize the inference that the claim to
have paid value is a pretence; and it is further important, as bearing
on the questions of notice and of good faith. Ib.
4. In such case the interest of the second assignee of the judgment, if
recognized, should be limited to the amount he actually paid and the
measure of the estoppel also limited accordingly. Ib.
MINERAL LAND, 2;
POST OFFICE DEPARTMENT.
See CRIMINAL LAW, 10, 11, 12, 13 51.
1. When an instruction to the jury embodies several propositions of law,
to some of which there are no objections, the party objecting must
point out specifically to the trial court the part to which he objects,
in order to avail himself of the objection. Baltimore & Potomac Rail-
road Co. v. Mackey, 72.
2. The record showed that plaintiff asked six instructions, of which the
court gave two, declined to give one, and declined to give the other
three except as covered by the general charge. The whole charge
was contained in the bill of exceptions, which thus concluded: "To
which refusal and charge of the court and the exclusion of evidence
offered, and to the action of the court in refusing a new trial, plain-
tiff excepted and tendered this bill of exceptions, which was signed
and sealed by the court and ordered to be made a part of the record
in this cause." Held, that this exception was insufficient. Jones v.
East Tennessee, Virginia & Georgia Railroad Co., 682.
Findings of fact in such cases, even when no statute provides for making
them, are a declaration by the court of the matter which it deter-
mines, and are conclusive as to it in subsequent controversies between
the parties. Last Chance Mining Co. v. Tyler Mining Co., 683.
1. The scuttling of a ship by the municipal authorities of a port, without
the direction of her master or other commanding officer, to extinguish
a fire in her hold, is not a general average loss. Ralli v. Troop, 386.
2. If the cargo in the hold of a ship moored in a port takes fire, and the
port authorities come on board with fire-engines, take charge of her,
pump steam and water into the hold, and move her and put her
aground without any objection by the master; and the master suc-
cessfully removes part of the cargo, and desires, and believes it to be
prudent and feasible, to remove more; but the port authorities forbid
and prevent his doing so, because of the danger of increasing the fire,
and themselves extinguish the fire by scuttling the ship, whereby she
becomes a wreck, not worth repairing; the loss of the ship is not a
subject of contribution in general average against the owners of the
cargo, although the court is of opinion that the measures taken by the
port authorities were the best available to save the cargo from greater
loss. Ib.
1. A guardian of an infant, appointed in one State, cannot maintain a
suit in the Circuit Court of the United States held within another
State, to set aside the appointment or to compel an account of a
guardian previously appointed in the latter State, except so far as
authorized to do so by its laws. Morgan v. Potter, 195.
2. In a suit by an infant, by his next friend, the infant, and not the next
friend, must be made the plaintiff. Ib.
1. The refusal by the state court to grant a writ of error to a person con-
victed of murder, or to stay the execution of a sentence, will not war-
rant a court of the United States in interfering in his behalf by writ
of habeas corpus. Bergemann v. Backer, 655.
2. When a state court has jurisdiction of the offence and the accused under
an indictment found under statutes of the State not void under the
Constitution of the United States, and proceeds to judgment under
such statutes, a Circuit Court of the United States has no authority to
interfere with the execution of the sentence by means of a writ of
habeas corpus. Ib.
See CONSTITUTIONAL LAW, 3, 4, 5, 6, 7;
JURISDICTION, B, 9.
1. In an indictment against the president and the assistant cashier of a
national bank for making a false entry in a report, under Rev. Stat.
§ 5209, the report need not be described with technical accuracy; nor
is it necessary to allege that the report in which the false entry was
made was verified by the oath or affirmation of the president or cashier,
or attested by the signature of the directors. Cochran and Sayre v.
United States, 286.
2. In such an indictment the true test is, not whether it might possibly
have been made more certain, but whether it contains every element
of the offence intended to be charged, and sufficiently apprises the
defendant of what he must be prepared to meet, and, in case any other
proceedings are taken against him for a similar offence, whether the
record shows with accuracy to what extent he may plead a former
acquittal or conviction. Ib.
INSOLVENT DEBTOR.
See CORPORATION.
1. When the jurisdiction of a controversy by a court is unquestioned, and
the cause proceeds to final judgment, and no review is sought for, the
judgment is conclusive upon the parties to the suit as to the matter
decided, but not as to matters which might have been decided, but
were not. Last Chance Mining Co. v. Tyler Mining Co., 683.
2. A judgment by default is just as conclusive an adjudication between
the parties of whatever is essential to support the judgment, as one
rendered after answer and contest; and in such case facts are not
open to further controversy if they are necessarily at variance with
the judgment on the pleadings. 1b.
JURISDICTION.
A. GENERALLY.
A question of jurisdiction cannot be waived. Mexican National Railroad
Co. v. Davidson, 201.
B. JURISDICTION OF THE SUPREME COURT.
1. The court below, in its order granting the appeal, said: "This appeal
is granted solely upon the question of jurisdiction" and made further
provisions for determining what parts of the record should be certified
to this court under the appeal, under which it subsequently directed
the portions of the record to be certified to this court, and the record
was prepared accordingly. Held, that this was a sufficient certificate
of a question of jurisdiction under the provisions of the Judiciary
Act of March 3, 1891, c. 517, 26 Stat. 826, 827. Shields v. Coleman,
168.
2. This court has no original jurisdiction of a suit between a State on the
one side, and citizens of another State and citizens of the same State
on the other side. California v. Southern Pacific Company, 229.
3. When an original cause is pending in this court, to be disposed of here
in the first instance and in the exercise of an exceptional jurisdiction,
it does not comport with the gravity and the finality which should
characterize such an adjudication, to proceed in the absence of parties
whose rights would be in effect determined, even though they might
not be technically bound in subsequent litigations in some other
tribunal.
4. The city of Oakland and the Oakland Water Front Company are so
situated in respect of this litigation, that the court ought not to pro-
ceed in their absence; and as, if they were brought in, the case would
then be between the State of California, on the one hand, and a citizen
of another State and citizens of California on the other, this court
cannot, under such circumstances, take original jurisdiction of it. Ib.
5. The finding of the Maryland Court of Appeals, that there was no fund
in the state treasury upon which the Comptroller could lawfully draw
his warrant, because there had been no appropriation made by the
state legislature for the payment of the commissions here claimed,
was decisive of this case, and involved no Federal question. Wailes
v. Smith, 271.
6. It being settled that by the joint resolution of March 3, 1891, 26 Stat.
1115, the jurisdiction of this court was preserved as to pending cases,
and cases wherein the writ of error on appeal should be sued out, or
taken before July 1, 1891, the court has jurisdiction of this case, the
writ of error having been allowed and sealed June 5, 1891. Gulf,
Colorado & Sante Fé Railway Co. v. Shane, 348.
7. Maynard v. Hecht, 151 U. S. 324, affirmed to the point that, "Where an
appeal or writ of error is taken from a District or a Circuit Court in
which the jurisdiction of the court alone is in issue, a certificate from
the court below of the question of jurisdiction to be decided is an
absolute prerequisite for the exercise of jurisdiction here; and if it
be wanting this court cannot take jurisdiction." Colvin v. Jackson-
ville, 368.
8. For the reasons stated in the opinion of the court it is held, (1) that
this court has no jurisdiction to review the judgment of the Circuit
Court in this case, and (2) that the writ of error was brought too
late. Lutcher v. United States, 427.
9. A court of equity has jurisdiction to prevent a threatened breach of
trust in the misapplication or diversion of the funds of a corporation
by illegal payments out of its capital or profits; and such a bill being
filed by a stockholder to prevent a trust company from voluntarily
making returns for the imposition and payment of a tax claimed to
be unconstitutional, and on the further ground of threatened multi-
plicity of suits and irreparable injury, and the objection of adequate
remedy at law not having been raised below or in this court, and the
question of jurisdiction having been waived by the United States, so
far as it was within its power to do so, and the relief sought being to
prevent the voluntary action of the trust company and not in respect
to the assessment and collection of the tax, this court will proceed to
judgment on the merits. Pollock v. Farmers' Loan & Trust Company,
429.
10. On the authority of Maynard v. Hecht, 151 U. S. 324, and Colvin v.
Jacksonville, 157 U. S. 368, this case is dismissed for want of a certifi-
cate from the Circuit Court certifying the question of its jurisdiction
for decision here. Davis & Rankin Building Co. v. Barber, 673.
11. The contention that petitioner cannot be made to pay the penalty
for the crime of which he was adjudged guilty, because he was not
executed at the time originally designated, was not sustained by the
chief justice of the State nor by the associate justice of its Supreme
Court, to whom, severally, he applied, and their action is not open to
review here. Lambert v. Barrett, 697.
12. An appeal will not lie from an order of a Circuit Judge at chambers.
Ib.
C. OF CIRCUIT COURTS OF THE UNITED STATES.
1. Under § 2 of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected
by the act of August 13, 1888, c. 886, 25 Stat. 433, the jurisdiction of a
Circuit Court of the United States, on removal by the defendant of an
action from a state court, is limited to such suits as might have been
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