supervisors. But the answer to them all is that the power of ratification did not lie with the supervisors. A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that they could, without such vote, by simple expressions of approval, or in some other indirect way, give validity to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his principal, could give validity to such act by its indirect recognition.*
We do not mean to intimate that liabilities may not be incurred by counties independent of the statute. Undoubtedly they may be. The obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation. But this is a very different thing from enforcing an obligation attempted to be created in one way, when the statute declares that it shall only be created in another and different way.
We perceive no error in the record, and the judgment of the Circuit Court must, therefore, be Affirmed.
* McCracken v. City of San Francisco, 16 California, 624.
ABATEMENT OF ACTION. See Constitutional Law, 3.
A bill filed previously to the passage of an act of Congress, making lawful
the building of a particular bridge, the bill praying injunction against
building of it as a nuisance, is abated by such act; though pleas and
replication had been filed, proofs taken, and the case ready for hear-
ing. The Clinton Bridge, 454.
ACCOUNT RENDERED. See Evidence, 3-7.
ACCOUNT STATED. See Stated Account.
ACKNOWLEDGMENT OF DEED. See Illinois, 2.
ACTION. See Abatement of Action; Negotiable Paper, 2.
1. Cannot be sustained on a gratuitous promise. Railroad Company v.
Reeves, 176.
2. A party standing in a position of secondary liability but not in that of
pure surety, held to be without right of against a principal for re-
covery of a tax exacted by the government from the principal, of
which such secondary party had notice and could yet recover (pro-
test having been made by the principal) if the tax was illegally ex-
acted. Baltimore v. Baltimore Railroad, 543.
ACT OF GOD. See Common Carrier.
ADMIRALTY. See Lookouts; Maritime Lien; Practice, 14, 22-24; Prize.
A steamer crossing another, so as to involve risk of collision, condemned
1st, for not keeping clear, having the other on her starboard; 2d,
being the following vessel. The Columbia, 246.
AGENT. See Factor; Principal and Agent.
ALGIERS. See Consul of the United States.
APPEAL. See Writ of Error.
APPEARANCE.
Appearing by counsel and moving to dismiss a bill for want of jurisdic-
tion and also for want of equity, is a waiver of the privilege as to
not being sued in the Circuit Court, given by the Judiciary Act of
1789, to non-residents of the district, and amounts to a voluntary
appearance within the Judiciary Act of February 28th, 1839, which
by implication authorizes any court of the United States "to take
jurisdiction against a person not an inhabitant of, or found within
the district where the suit is brought, if he voluntarily appears
thereto." Jones v. Andrews, 327.
ASSUMPSIT. See Quantum Valebat.
1. Their character,-how far in rem, how far in personam-and the dis-
tinction between the two sorts, stated. Conclusiveness of judgments
in the latter, in collateral proceedings, where there has been a valid
writ, a levy, judgment, order of sale, and deed. Cooper v. Reynolds,
308.
2. Where in such suit there is a valid writ and levy on property, a judg-
ment of the court, an order of sale, a sale and sheriff's deed, the proceed-
ing cannot be held void when introduced collaterally in another suit;
even though there have been irregular or defective affidavits and
publication of notice, such as might reverse the judgment for error
in departing from the directions of the statute. Ib.
ATTORNEY. See Counsel and Client.
Not bound by gratuitous promise. Hence the promise of a common car-
rier made without compensation additional to what he has contracted
for, to forward goods already on his route, by an earlier train than
they would usually go by, makes no contract. Railroad Company v.
Reeves, 176.
BANK CHECK. See National Banks; Negotiable Paper, 2, 3.
BARBARY COAST. See Consul of the United States.
BREACHES. See Statutory Bond; Voluntary Bond.
Suits sustainable for, on a statutory bond, if the conditions of it be essen-
tially within those contemplated by the statute, though not within
them literally. United States v. Hodson, 395.
BURDEN OF PROOF. See Entry for Condition Broken.
Grants of the public domain of Mexico, their three classes; the regula-
tions prescribed by Mexico for the alienation of its public domain;
the Act of the Departmental Assembly of California on such aliena-
tion; the interest passed by an imperfect grant in California consti-
tuting property protected by the treaty of cession. These matters
considered. Hornsby et al. v. United States, 224.
Camanche, The (8 Wallace, 476), in The Blackwall, 1.
Flanders v. Tweed (9 Id. 425), in Coddington v. Richardson, 516.
Grapeshot, The (Ib. 129), in The Lulu, 192, and The Kalorama, 204.
Guy, The (1b. 758), in The Kalorama, 204.
Norris v. Jackson (Ib. 125), in Coddington v. Richardson, 516.
Paul v. Virginia (8 Id. 168), in Ducat v. Chicago, 410, and Liverpool
Insurance Company v. Massachusetts, 567.
CASHIER OF BANK. See Principal and Agent.
A cashier has power, when acting bonâ fide and in the ordinary course of
business, to bind his bank by marking checks on it as "good." This
rule applies to the National banks. Merchants' Bank v. State Bank, 604.
CAUSA PROXIMA, NON REMOTA, &c. See Common Carrier, 4.
"CHOUTEAU'S MAP."
Is not evidence conclusive upon questions of the extent of lots in St. Louis,
but may go to a jury with other evidence. The Schools v. Risley, 91.
CLAIM AGAINST THE UNITED STATES.
An ancient one on loan certificates, issued by the Continental Congress of
1777, rejected; the same, after investigation into it, having been
rejected in 1792 by Secretary Hamilton, and being as the court con-
sidered without equity. Ward v. United States, 593.
CLIENT. See Counsel and Client.
COLLISION. See Admiralty; Lookouts.
COMMON CARRIER. See Contract, 4.
1. Who shows that a loss was by some vis major, as by flood, is excused
without proving affirmatively that he was guilty of no negligence.
Railroad Company v. Reeves, 176.
2. The proof of such negligence, if the negligence is asserted to exist,
rests on the other party. Ib.
3. In case of a loss of which the proximate cause is the act of God or the
public enemy, the common carrier is excused, though his own negli-
gence or laches may have contributed as a remote cause.
4. The maxim causa proxima, non remota spectatur applies to such cases as
to other contracts and transactions; and ordinary diligence is all that
is required of the carrier to avoid or remedy the effects of the over-
powering cause. Ib.
CONCLUSIVENESS OF JUDGMENT.
Judgments of courts of competent jurisdiction cannot be attacked collat-
erally. Stoval v. Banks, 583; Cooper v. Reynolds, 308.
CONDITION. See Contract, 1, 2; Entry for Condition Broken.
CONSIDERATION. See Contract, 1, 2.
The mere promise of a carrier, without additional consideration, to for-
ward freight already on the route by an earlier train than usual, is
not evidence from which a jury can infer a special contract to do so.
Railroad Company v. Reeves, 176.
CONSIGNOR AND CONSIGNEE. See Factor.
CONSTITUTIONAL LAW. See Jurisdiction, 1; Navigable Waters of the
United States.
1. An ordinance of a city imposing a license tax upon dealers in beer or
ale not manufactured in that city, but brought there for sale, is not
necessarily in conflict with the clause of the Constitution which de-
clares that "Congress shall have power to regulate commerce with
CONSTITUTIONAL LAW (continued).
foreign nations, and among the several States;" nor with that one
which declares that "the citizens of each State shall be entitled to all
the privileges and immunities of citizens of the several States." Down-
ham v. Alexandria Council, 173.
2. Corporations whether organized under the laws of a State of the Union
or a foreign government, may be taxed by another State, for the
privilege of conducting their corporate business within the latter.
Liverpool Insurance Company v. Massachusetts, 567 ; Ducat v. Chicago,
410; both affirming Paul v. Virginia (8 Wallace, 168).
3. An act of Congress enacting that a certain bridge, already built over a
river which divides two States, "shall be a lawful structure, and shall
be recognized and known as a post-route," is constitutional. The
Clinton Bridge, 454.
4. A constitution of a State is a "law," within the meaning of that clause
of the Constitution which ordains that "no State shall pass any law
impairing the obligation of contracts." Railroad Company v. McClure,
511.
5. The decision of a State court which simply held that promissory notes,
given for the loan of "Confederate currency," together with a mort-
gage to secure the notes, were nullities, on the ground that the con-
sideration was illegal, according to the law of the State, at the time
the contract was entered into, is not a decision repugnant to the Fed-
eral Constitution. Bethel v. Demaret, 537.
6. The riparian rights possessed by the owner of land bounded by a navi.
gable river are property, and can be taken for the public good only
when due compensation is made. Yates v. Milwaukee, 497.
7. A statute of a State which confers on a city the power to establish
dock and wharf lines, and to restrain encroachments and prevent ob-
structions to such a stream, does not authorize it to declare by special
ordinance a private wharf to be an obstruction to navigation and a
nuisance, and to order its removal, when, in point of fact, it was no
obstruction, or hindrance to navigation. Ib.
CONSTRUCTION, RULES OF. See Evidence, 8.
I. AS APPLIED TO CONTRACTS.
1. Where the proper meaning of an instrument is clear, the erroneous
construction which the parties to it have themselves put upon it will
not control its effect. Railroad Company v. Trimble, 367.
2. When plain in terms not to be controlled by evidence of usage. Bar-
nard v. Kellogg, 383; Stagg v. Connecticut Insurance Company, 589.
II. AS APPLIED TO STATUTES.
8. A statute granting pieces of lands to Indians, and prescribing a specific
mode in which they may sell, forbids by implication a sale independ-
ently of the mode. Smith v. Stevens, 321.
4. Statutes to raise revenue, are to be construed liberally to carry out the
purposes of their enactment. The rule that what is implied in them is
as much a part of the enactment as what is expressed, holds in regard
to them. United States v. Hodson, 395.
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