21. Congress may authorize a territorial corporation to construct a railroad in a Territory, and may make land grants in aid thereof, which will be valid after a part of the Territory becomes a State. St. Paul, Min- neapolis &c. Railway Co. v. Phelps, 528.
22. A State cannot be deemed guilty of a violation of its obligations under the Constitution of the United States because of a decision, even if erroneous, of its highest court while acting within its jurisdiction. In re Converse, 624.
23. When a person accused of crime within a State is subjected, like all other persons in the State, to the law in its regular course of adminis- tration in courts of justice, the judgment so arrived at cannot be held to be such an unrestrained and arbitrary exercise of power as to be utterly void. Ib.
24. The Fourteenth Amendinent to the Constitution was not designed to interfere with the power of a State to protect the lives, liberty and property of its citizens, nor with the exercise of that power in the adjudications of the courts of the State in administering the process provided by its laws. Ib.
25. In convicting the petitioner of embezzlement under section 9151 of Howell's Annotated Statutes of Michigan, upon his confessing that he had been guilty of embezzlement as attorney-at-law, instead of under section 9152, the Supreme Court of Michigan did not exceed its juris- diction, or deliver a judgment which abridged his privileges or immuni- ties or deprived him of the law of the land of his domicil. 16. 26. The distribution of and the right of succession to the estates of deceased persons are matters exclusively of State cognizance, and may be dealt with by a Territorial legislature as it sees fit, in the absence of a pro- hibition by Congress. Cope v. Cope, 682.
27. No statute of a Territory will be declared void because it may in- directly, or by a construction which is possible but not necessary, be repugnant to an act of Congress annulling legislation of the Territory; but such a result must be direct and proximate in order to invalidate the statute. Ib.
28. No State can deprive particular persons or classes of persons of equal and impartial justice under the law, without violating the provisions of the Fourteenth Amendment to the Constitution. Caldwell v. Texas, 692.
29. Due process of law, within the meaning of the Constitution, is secured when the laws operate on all alike, and no one is subjected to partial or arbitrary exercise of the powers of government. 16.
30. No question of repugnancy to the Federal Constitution can be fairly said to arise when the inquiry of a State court is directed to the sufficiency of an indictment in the ordinary administration of crimi- nal law, and the statutes authorizing the form of indictment do not obviously violate these fundamental principles. Ib.
31. An indictment, framed in accordance with the laws of Texas, which
charges that the prisoner at a time and place named did, "unlawfully and with express malice aforethought, kill one J. M. Shamblin by shooting him with a gun, contrary to the form of the statute," et cet., does no violation to the provisions of the Fourteenth Amendment to the Constitution. Ib.
1. If one party to a contract intends to rescind it on the ground of failure of performance by the other, a clear notice of such intention must be given, unless either the contract dispenses with notice, or it becomes unnecessary by reason of the conduct of the parties. Hennessy v. Bacon, 78.
2. The mere receipt of a bill on payment of money is not an assent to the proposition that the bill contains the whole contract between the par- ties; but whether it is so or not is a fact to be determined by the jury. Bank of British North America v. Cooper, 473.
3. A party receiving moneys from another to be transmitted for him to a named destination, in order that they may be used there to pay his liabilities, cannot change the destination at the desire of the party to whom the money is sent, without becoming liable for the loss, in case loss ensues in consequence of the change. Ib.
4. In the relation of principal and agent, strict compliance by the latter with the instructions of the former is an unvarying condition of exemption from liability. Ib.
5. C in New York, who had had business relations with M. & Co. of Glas- gow, drew upon them for £5000, to mature February 29. On February 26th he bought of plaintiff in error, who had an office in London, a cable transfer of this amount in favor of M. & Co. to be transmitted in a check by post from London to Glasgow, and took from the bank a receipt "for cable transfer on the Bank of British North America, London, in favor of " M. & Co. "Glasgow." The cable message was accordingly sent, but the London office, under previous directions from M. & Co. as to all such matters, but without knowledge of C, instead of forwarding the check to Glasgow, deposited it to the credit of M. & Co. in the Bank of Scotland in London, which action was approved by M. & Co. On the 28th or 29th of February M. & Co. suspended. It was in evidence that on the 28th they applied similar moneys to the payment of similar obligations, and that if the check had been sent by mail as directed, it would have reached Glasgow on the morning of that day in time to be applied to the payment of C's draft. The Bank of Scotland appropriated the £5000 to the payment of the bal- ance due from M. & Co. to it, and C was obliged to meet his draft. In an action by him against the Bank of British North America, Held, (1) That whether the bill contained the entire contract between the parties was a question for the jury; (2) That the bank, having received the money with knowledge that it belonged to C, and that it
was to be used in the payment of his liabilities, could not substitute for his instructions the wishes of the party to whom he was remitting the money; (3) That when his instructions were disobeyed and a loss ensued, that loss would prima facie fall upon the bank, and the burden was upon it to show that obedience to the instructions would have produced a like result. Ib.
See ARMY OF THE UNITED STATES, 1;
1. Where a foreign corporation is not doing business in a State, and no officer is there transacting business for the corporation and represent- ing it in the State, it cannot be said that the corporation is within the State so that service can be made upon it; and evidence that the president of a foreign corporation so situated was induced by false representations to come within the jurisdiction for the purpose of obtaining service of process, and that process was there served, is immaterial, inasmuch as the corporation must be held to have known that it could not be brought into court by such a service. Fitzgerald & Mallory Construction Co. v. Fitzgerald, 98.
2. Where an officer of a railroad construction company has full charge for it of the location and construction of a railroad, and is authorized to draw checks and drafts, and charged with the general management of the business of the company in the absence of contrary instructions by the board of directors, notes given by him for moneys used to pay off indebtedness of the company arising in the construction of the road, cannot be held to be in excess of his powers. Ib.
3. It was the duty of the directors to give contrary instructions if they wished to withdraw the general management from the president, and to disaffirm the action of their agents promptly if they objected to it. Ib.
4. If the notes were endorsed at the request of the party to whom the general management was confided, the indorsee, if compelled to pro- tect his endorsement, cannot be treated as a volunteer, and if he was the superintendent of the work, and the money was raised and used to pay off sub-contractors and material men employed by him, then upon the refusal of the company to pay, he had the right to take up the notes and have them assigned to him. Ib.
5. Compensation for official services rendered in the absence of a specified compensation, fixed or agreed upon, may not be recoverable, but in this case it was properly left to the jury to determine whether the ser- vices rendered were of such a character and rendered under such cir- cumstances that compensation could be claimed therefor. Ib.
6. At the trial of an action of tort upon a plea of nul tiel corporation, evidence that the plaintiff, after filing a defective certificate of incor-
poration under a general corporation law, acted for years as a corpora- tion, and recovered a judgment as such in a similar action against the defendant without any objection made to its capacity to sue, is com- petent and sufficient to prove it a corporation de facto, and therefore entitled to maintain this action. Baltimore and Potomac Railroad Co. v. Fifth Baptist Church, 568.
7. Misnomer of a corporation plaintiff is pleadable in abatement only, and is waived by pleading to the merits. Ib.
COURTS OF THE UNITED STATES. See PRACTICE, 1, 2.
At a trial by jury in a court of the United States, the presiding judge may express his opinion upon matters of fact which he submits to their determination. Baltimore and Potomac Railroad v. Fifth Baptist Church, 568.
See CONTRACT, 2, 5;
CORPORATION, 5; PRACTICE, 8.
The decision of the President confirming or disapproving the sentence of a general court martial in time of peace extending to the loss of life or the dismission of a commissioned officer, or in time of peace or war respecting a general officer, under the provisions of the 65th Article of war, is a judicial act to be done by him personally, and is not an official act presumptively his; but it need not be attested by his sign manual in order to be effectual. United States v. Page, 673.
See CONSTITUTIONAL LAW, 9.
It is no defence to an indictment under one statute that a defendant might also be punished under another statute. In re Converse, 624. See CONSTITUTIONAL LAW, 23, 25.
CUSTOM.
See ADMIRALTY, 3.
1. Cloths popularly known as "diagonals," and known in trade as "worsteds," and composed mainly of worsted, but with a small pro- portion of shoddy and of cotton, are subject to duty as a manufacture
of worsted, and not as a manufacture of wool, under the act of March 3, 1883, c. 121. Seeberger v. Cahn, 95.
2. Schedule F of section 2502 of Title 33 of the Revised Statutes, as enacted by section 6 of the act of March 3, 1883, c. 121, (22 Stat. 503,) provided as follows, in regard to duties on imported tobacco: "Leaf tobacco, of which eighty-five per cent is of the requisite size and of the necessary fineness of texture to be suitable for wrappers, and of which more than one hundred leaves are required to weigh a pound; if not stemmed, seventy-five cents per pound; if stemmed, one dollar per pound. All other tobacco in leaf, unınanufactured, and not stemmed, thirty-five cents per pound." Tobacco was imported in bales, each of which contained a quantity of Sumatra leaf tobacco answering the description in the statute of that dutiable at 75 cents per pound, except that it formed only about 83 per cent of the contents of the bale. The rest of the bale consisted of inferior leaf tobacco, called "fillers," which was separated from the 75-cent tobacco by strips of paper or cloth, making the one kind readily separable from the other, on the opening of the bale. More than 85 per cent of the 75-cent tobacco answered the description of tobacco dutiable at that rate: Held, that the whole of the 75-cent tobacco was dutiable at that rate, and that the contents of the bale, as a whole, were not dutiable at 35 cents per pound. Falk v. Robertson, 225.
3. The unit upon which the 85 per cent was to be calculated was not the entire bale. Ib.
4. On a reappraisement by a merchant appraiser and a general appraiser, under § 2930 of the Revised Statutes, the valuation of goods entered in March, 1886, was raised, and the importer paid thereon additional duties, for which he sued the collector, after protest and appeal. At the trial, the plaintiff put in evidence chapter 3, part 3, articles 447 to 506, and chapter 5, part 8, articles 1399 to 1410, and 1415 to 1417, of the general regulations under the customs and navigation laws pub- lished by the Treasury Department in 1884; and extracts from the instructions issued for the guidance of officers of the customs and others concerned, by the Secretary of the Treasury, under date of July 1, 1885, being instructions of June 9, 1885, and June 10, 1885. The importer had asked for the reappraisement, and the collector selected the merchant appraiser. He took the prescribed oath in regard to the goods in question. The defendant had a verdict in respect of the addi- tional duties, under the direction of the court, and the importer had a judgment in respect of another matter: On a writ of error: Held, (1) The instructions of the Treasury Department gave the importer all the rights to which he was entitled, and were not repugnant to that provision of §§ 2902 and 2930 which required the use of "all reason- able ways and means," in appraising, and the proper rights of the importer were accorded to him in this case; (2) The question of the dutiable value of the merchandise was not to be tried before the ap-
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