« ForrigeFortsett »
ments he makes to the one first designated are at his own peril and
liability to account to the other heir after his claim has been estab-
lished for his proportionate share, and the debtor is not protected by
a decree and order of the court directing payment to the assignee of the
heir originally designated in a proceeding to which such asserting heir
was not a party. Where the payment to the heir originally designated
is made before the debt is due and after the other heir has asserted his
claim, and under circumstances indicating collusion, it is for the jury
to determine whether the payment was made in good faith and with-
out knowledge of the rights of the asserting heir. Sixto v. Sarria, 175.
South Carolina. Issuance of evidences of state indebtedness forbidden by
constitution. Article IX, § 10, of the constitution of South Carolina
of 1868, forbidding, except as specially authorized in the constitution,
the issue of scrip or other evidence of state indebtedness except for the
redemption of existing indebtedness of the State, forbade the issue of
scrip under an act passed in 1872 to take up the State's guaranty of rail-
road bonds under an act passed in 1868 subsequent to the ratification of
the constitution, notwithstanding that acts had been passed in 1852
and 1854 authorizing such guaranty. it appearing that the guaranty
had not actually been endorsed on the bonds prior to the ratification
of the constitution and that the act of 1868 was not an adjustment of
an old debt but the granting of new aid to the railroad and the au-
thorizing of an original issue of bonds. Lee v. Robinson, 64.
See CRIMINAL LAW, 2.
1. Contract for carriage; power of Postmaster General to terminate.
Under the mail contract in this case, which was made in pursuance of the
Postal Laws and Regulations, and after the service had materially de-
creased by changed methods of transporting mail and the Postmaster
General had offered the contractor, who had refused to accept it, the
remaining work at a lower compensation, it was within the power of
the Postmaster General to put an end to the contract by order of
discontinuance, allowing one month's pay as indemnity, and to relet
the remaining service; the power to terminate the contract on allowing
a month's pay as indemnity was not predicated on an abandonment
of the entire service. Slavens v. United States, 229.
2. Contract for carriage; changed service within,
While the provisions in a similar contract that the contractor should per-
form without additional compensation all new or changed service that
the Postmaster General should order, might not be construed as ex-
tending to services of different character and not within the terms of
the contract, where the changed service is to take the mail to and from
street cars, met at crossings, instead of landings and stations, it comes
within the power reserved to the Postmaster General and the con-
tractor is not entitled to additional compensation therefor. Ib.
3. Contract by local postmaster not binding on Government.
In the absence of authority shown, a local postmaster has no power or au-
thority to contract in respect to mail messenger service, and is not the
agent of nor can he bind the Government for that purpose, and if a
contractor performs services which he protests against as not being
within his contract, solely on the postmaster's order, he is not entitled
to extra compensation therefor after his protest has been sustained
and the service let to others. Ib.
Liability, under Harter Act, for damages due to negligence in unloading cargo
-Application of act, to foreign vessels.
A foreign vessel from Liverpool arrived at its destination, New York, and
made fast to the wharf. Owing to unusual gales and weather she was
heavily weighted with snow and ice and made top heavy. While the
cargo was being unloaded she suddenly rolled over and sank, damag-
ing the cargo remaining in her, some of which had been shipped from
points east of Liverpool on bills of lading to Liverpool, thence to be
forwarded to New York, and containing certain exemptions of the
carrier from liability. The owners and insurers of cargo libelled the
vessel; it was found by the District Court and the Circuit Court of
Appeals that the damage was due to negligence in unloading cargo
and ruled that the negligence fell within section one of the Harter Act
and not within section three of the same as negligence in the naviga-
tion or management of the vessel. Held, that this court will not go
behind the findings of the two courts as to negligence and that the
rule was correct. When a case may fall under section one and sec-
tion three of the Harter Act the question which section is to govern
must be determined by the primary nature and object of the acts which
cause the loss. Semble. The standard of conduct is external and
not merely co-extensive with the judgment of the individual. The
Harter Act will be applied to foreign vessels in suits brought in the
United States, and where claimants set up and rely upon the act they
must take the burden with the benefits and cannot claim a greater
limitation of liability under provisions of bills of lading. The Germanic,
Safe appliances-Increased hazard-Knowledge of employé.
An employé is entitled to assume that his employer has used due care to
provide reasonably safe appliances for the doing of his work. Knowl-
edge of the increased hazard resulting from the negligent location in
dangerous proximity to a railroad track of a structure will not be
imputed to an employé, using ordinary diligence to avoid it if properly
located, because he was aware of its existence and general location.
It is for the jury to determine from all the evidence whether he had
actual knowledge of the danger. Texas & Pacific Ry. Co. v. Swearin-
Adverse proceeding by owner of tunnel against patentee of lode claim held not
As between the Government and the locator, it is not a vital fact that there
was a discovery of mineral in a lode claim before the commencement
of any of the steps required to perfect a location, and by accepting the
entry, and confirming it by a patent, the Government does not deter-
mine as to the order of proceedings prior to the entry but only that all
required by law had been taken. Adverse proceedings, are called for
only when one mineral claimant contests the right of another mineral
claimant, and, as a tunnel is not a mining claim but only a means of
exploration, the owner, prior to discovery of a lode or vein within the
tunnel, is not bound to adverse the application for the patent of a lode
claim, the lode of which was discovered on the surface; and his omis-
sion to do so does not preclude him from asserting a right prior to the
date of discovery named in the certificate of location on which the
patent for the surface lode claim is based. Mining Company v. Tunnel
MINES AND MINING.
See MINING Claims;
PUBLIC LANDs, 3.
See COMBINATIONS IN RESTRAINT OF TRADE.
Analogous nature of chattel mortgage and deed of trust.
A deed of trust and a chattel mortgage with power of sale are practically
one and the same instrument as understood in the District of Columbia.
Hunt v. Springfield F. & M. Ins. Co., 47.
See BANKRUPTCY, 5;
FEDERAL QUESTION, 2.
1. Defined as creature of the State.
The city is the creature of the State. A municipal corporation is simply
a political subdivision of the State existing by virtue of the exercise
of the power of the State through its legislative department. Wor-
cester v. Street Ry. Co., 539.
2. Property rights of—Obligation of street railways to repair streets.
While a municipal corporation may own property not of a public or govern-
mental nature which is entitled to constitutional protection, the ob-
ligation of a railroad company to pave and repair streets occupied by
it based on accepted conditions of a municipal ordinance granting
rights of location is not private property beyond legislative control. Ib.
See STREETS AND HIGHWAYS:
Usurious interest-Payment within meaning of section 5198, Rev. Stat.
The payment referred to in § 5198, Rev. Stat., is an actual payment and
not a further promise to pay and the mere discharge of the maker of
a note by his giving his own note in renewal thereof will not uphold
a recovery against the bank on account of usurious interest in the
former note. First National Bank v. Lasater, 115.
Sea duty and shore duty-Construction of sections 1556, 1571, Rev. Stat.,
and naval regulations.
The Navy Department has no power to disregard the provisions of Rev.
Stat. §§ 1556, 1571, and Pars. 1154, 1168 naval regulations, and either
deprive an officer of sea pay by assigning him to a duty mistakenly
qualified as shore duty but which is in law sea duty, or to entitle him
to receive sea pay by assigning him to duty which is essentially shore
duty and mistakenly qualifying it as sea duty. Where, however, the
assignment of an officer to duty by the Navy Department expressly
imposes upon him the continued discharge of his sea duties and qualifies
the shore duty as merely temporary and ancillary to the regular sea
duty, the presumption is that the shore duty is temporary and does
not operate to interfere with or discharge the officer from the responsi-
bilities of the sea duties to which he is regularly assigned and he is
entitled to sea pay during the time of such temporary shore duty.
United States v. Engard, 511.
Pay for services peculiar to army not within operation of-Pay to which
lieutenant, acting as aid to rear-admiral, is entitled.
The Navy Personnel Act undertook to equalize the pay of naval officers
with those officers of the Army of equal rank as to duties properly
required of a naval officer, and it has no operation to provide pay for
services peculiar to the Army. A lieutenant in the Navy serving as
aid to a rear-admiral is entitled to the additional two hundred dollars
allowed to a lieutenant serving as aid to a major-general under § 1261,
Rev. Stat., but he is not entitled to the mounted pay allowed to the
army lieutenant serving as such aid under § 1301, Army Regulations.
United States v. Crosley, 327.
MASTER AND SERVANT;
MARITIME LAW; STREETS AND HIGHWAYS.
See JURISDICTION, B 2.
In an action for mandamus against a judge of a territorial court in New
Mexico, who, after the appeal, ceased to be judge and whose successor
has consented that the action be revived against him, this court may,
under the act of Congress of February 8, 1899, if in its judgment ne-
cessity exists for such action in order to obtain a settlement of the legal
questions involved, substitute the name of the successor in place of
the original appellee. In this case this court orders the substitution,
the party substituted not to be liable for any costs prior hereto. Cale-
donian Coal Co. v. Baker, 432.
See LOCAL LAW (P. R.);
Construction of bill in equity.
A bill in equity, and the demurrer thereto, are neither of them to be read
and construed strictly as an indictment but are to be taken to mean
what they fairly convey to a dispassionate reader by a fairly exact use
of English speech. Swift and Company v. United States, 375.
See REMOVAL OF CAUSES, 1.
See INTERSTATE COMMERCE, 5;
STATES, 1, 2, 4.
See LOCAL LAW (P. R.).