For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

CONSCRIPTION.

See Army and Navy, 20, 40; Criminal Law, 315, 339, 1186; Indictment and Information, 111.

CONSENT.

See Courts, 23.

CONSIDERATION.

218; Corporations, 657; Damages,
67; Evidence, 417; Gaming; Insurance;
Interest; Landlord and Tenant; Mortgages;
Principal and Surety, 82, 161; Railroads,
18, 154; Release; Sales; Shipping,
38-58; Specific Performance; Stipulations;
Telegraphs and Telephones, 11.

I. REQUISITES AND VALIDITY.
(D) Consideration.

See Bills and Notes, 476-518; Contracts, 61 (U.S.C.C.A.N.Y.) A contract for services 61.

CONSOLIDATION.

See Corporations, 584.

CONSPIRACY.

See Criminal Law, 114, 534, 781.

II. CRIMINAL RESPONSIBILITY.

(A) Offenses.

"rendered and to be rendered" is not without consideration.-Gardiner v. Du Pont, 363.

V. PERFORMANCE OR BREACH.

321 (1) (U.S.C.C.A.Ohio) While a contractor on owner's default in payment has right to abandon further performance and sue for damages or in quantum meruit, he is not bound to do so, but may keep the contract in force and refuse his assent to any repudiation or rescission.-Feick v. Stephens, 321.

ing for the most part of correspondence be-
tween the parties, considered, and held insuffi-
cient to sustain an action against the defendant
for breach of contract.-Gardiner v. Du Pont,
363.
COPY.

30 (U.S.C.C.A.N.Y.) Where it did not ap-322(3) (U.S.C.C.A.N.Y.) Evidence, consistpear that defendants, who conspired by destroying with infernal machines ships carrying munitions to the Allies to raise insurance rates and thus aid Germany, intended only to attack insured vessels, the conspiracy does not fall within Cr. Code, § 296, denouncing "conspiracy to destroy any vessel with intention to injure the underwriters."-Daeche v. United States, 582. See Criminal Law, 450. A conspiracy to destroy munition ships by means of infernal machines so as to aid Germany held one to despoil the owners and hence to fall within Cr. Code, § 298.-Id.

See Criminal Law, 593-603, 1151, 1166.

10 (U.S.C.C.A.N.Y.) In action in federal court for New York, for breach of contract to sell vessel, where pendency of admiralty suit appeared on face of complaint, that objection was waived under Code Civ. Proc. N. Y. § 499, unless taken advantage of by demurrer, and, not having been taken advantage of, motion for continuance pending appeal in admiralty cause was properly denied.-Rederiaktiebolaget Amie v. Universal Transp. Co., 470.

CONTRACT LABORERS.

See Aliens, 40, 58.

COPYRIGHTS.

See Trade-Marks and Trade-Names, 95.

CORPORATIONS.

V. MEMBERS AND STOCKHOLDERS. (A) Rights and Liabilities as to Corporation.

189(9) (U.S.C.C.A.Ohio) A majority stockholder held not a necessary party to a suit by a minority stockholder for the appointment of a receiver for stocks of subsidiary companies alleged to be illegally held by the corporation.General Inv. Co. v. Lake Shore & M. S. Ry. Co., 296.

bill by a 189 (11) (U.S.C.C.A.Ohio) A stockholder to enjoin the corporation from doing an illegal act held sufficient on its face against a motion to dismiss.-General Inv. Co. v. Lake Shore & M. S. Ry. Co., 296.

Equity rule 27 (198 Fed. xxv, 115 C. C. A. XXV), prescribing requisites of stockholder's bill, held not to apply to a suit brought by a stockholder in his own right against the corporation to enjoin it from doing an illegal act. -Id.

(B) Meetings.

201 (U.S.C.C.A.Ohio) A stockholder in a corporation is an indispensable party to a suit to enjoin him from voting his stock at a stock

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

of State Courts.

profits and damages, though the parties are (E) Procedure, and Adoption of Practice citizens of the same state.-Detroit Showcase Co. v. Kawneer Mfg. Co., 370.

332 (U.S.C.C.A.N.Y.) The established equiWhere patent was found not to have been ty practice approved by the Supreme Court uninfringed, and parties to suit were citizens of der the old rules must be considered to have resame state, federal court is without jurisdic-mained in force, except as changed by the new tion over a cause of action for unfair competition, arising out of defendant's sale of the alleged infringing articles.-Id.

(C) Jurisdiction Dependent on Citizenship, Residence, or Character

of Parties.

rules or by rules of the District Court adopted under authority of new rule 79 (198 Fed. xli, 115 C. C. A. xli).—Individual Drinking Cup Co. v. Union News Co., 641.

347 (U.S.C.C.A.Ohio) Under equity rule 34 (198 Fed. xxviii, 116 C. C. A. xxviii), permission to file a supplemental bill alleging matters occurring after the filing of the original bill held proper, although such matters would Inv. Co. v. Lake Shore & M. S. Ry. Co., 296, in effect change the nature of the suit.-General

307(1) (U.S.C.C.A.N.H.) Where diversity of citizenship was the basis of the federal court's jurisdiction over a suit by a resident of New Hampshire against foreign corporations, a local rule of practice with respect to bringing in ad-3511⁄2 (U.S.C.C.A.Ohio) A motion to disditional defendants does not give the federal miss made under equity rule 29 (198 Fed. xxvi, court jurisdiction over a New Hampshire mu115 C. C. A. xxvi), although going to the entire nicipality, impleaded in accordance therewith. bill may be sustained as to a part of the bill Devost v. Twin State Gas & Electric Co., 419. only, where such part relates to relief which Where, in a suit in the federal court, based cannot be granted because of defect of paron diversity of citizenship, defendants implead-ties, but the bill is good as to other matters.ed a municipal corporation of the state of General Inv. Co. v. Lake Shore & M. S. Ry. which plaintiff was a citizen, and plaintiff was allowed to file an amendment to the declara-352 (U.S.C.C.A.N.Y.) Although juries are tion, asserting that the several defendants were recognized triers of fact, federal court in civil joint tort-feasors, the amendment ousted the case may direct verdict, when evidence, with federal court's jurisdiction, and it therefore all inferences that jury could properly draw, had no power to enter judgment on the merits, would be insufficient to support contrary vereither for plaintiff or any one of the defend- dict, and it would be necessary to set such verdict aside, if rendered.-Lauria v. E. I. Du Pont De Nemours & Co., 423.

ants.-Id.

307(1) (U.S.C.C.A.N.Y.) The term "citizen," as used in the Judiciary Act with reference to the jurisdiction of the federal courts, means the same thing as domicile, denoting a citizen of the United States residing permanently in a particular state. Delaware, L. & W. R. Co. v. Petrowsky, 570.

Where plaintiff at the time of the commencement of his action was domiciled in a state different from that of defendant, he is a citizen of that state for the purpose of suing in the federal courts.-Id.

Co.. 296.

(F) State Laws as Rules of Decision.

366(6) (U.S.C.C.A.Ark.) Decision of highest state court concerning state statutes regarding tax penalties is conclusive on federal courts.-Bright v. State of Arkansas, 151.

366(6) (U.S.C.C.A. Wash.) Where the Supreme Court of a state deliberately considered and construed a statute relating to notice to property owners of proposed changes in valuation, the federal courts will abide by the construction given, though it be questioned as dictum.-Skagit County v. Puget Mill Co., 163.

(G) Supreme Court.

323 (U.S.C.C.A.Pa.) Evidence on question whether husband of plaintiff, a resident of Pennsylvania, was in employ of a New York corporation at time he met his death held to conclusively show that he was employed by a Pennsyl-384 (U.S.C.C.A.Ky.) Where decisions of sevvania corporation, so there was no diversity of eral Circuit Courts of Appeals concerning right citizenship, giving federal District Court juris- of Secretary of Labor to deport Chinese persons, diction.-Postal Telegraph-Cable Co. v. Darrow, on ground that they were found in United States in violation of Chinese Exclusion Act, are conflicting, and the question has not been presented to Supreme Court, the matter is one which another Circuit Court of Appeals may properly certify to Supreme Court for instructions.-United States v. Woo Jan, 611.

597.

325 (U.S.C.C.A.N.H.) Where the federal court's jurisdiction was invoked on the ground of diversity of citizenship, that requirement is absolutely essential and cannot be waived, and want of it will be error at any stage of the cause, though assigned by the party at whose instance the error was committed.-Devost v. Twin State Gas & Electric Co., 419.

(D) Jurisdiction Dependent on Amount or Value in Controversy.

329 (U.S.C.C.A.N.Y.) The federal court is without jurisdiction of a suit based on diversity of citizenship, unless the allegation of damages is sufficient on its face to satisfy the jurisdictional requirement as to amount involved.-Fuerst Bros. & Co. v. Polasky, 13.

(H) Circuit Courts of Appeals.

405(5) (U.S.C.C.A.Mass.) Where bill for infringement of patent, brought under Judicial Code, § 48, was dismissed, and preliminary injunction denied, on ground defendant was not an inhabitant and had no regular place of business in district wherein suit was brought, Circuit Court of Appeals is, under section 128, without jurisdiction of appeal from order of dismissal, and question being one primarily involving jurisdiction, appeal must, under section

and Res Gestæ.

238, be taken to Supreme Court.-American (B) Facts in Issue and Relevant to Issues, Electric Welding Co. v. Lalance & Grosjean Mfg. Co., 166.

405 (11) (U. S. C. C. A. Canal Zone) Under Comp. St. 1916, § 10045, the Circuit Court of Appeals of the Fifth Circuit has jurisdiction to review a judgment of the District Court of the Canal Zone, where the aggregate amount of judgment in favor of plaintiff and of the counterclaim made by defendant and disallowed exceeds $1,000.-Pacific Mail S. S. Co. v. Beneby,

514.

339 (U.S.C.C.A.Mich.) In prosecution for failure to register as required by the Selective Draft Act, § 5, where defendant was indicted under the name by which he was known, instead of his real name, it was not error, and certainly was not prejudicial, to admit evidence identifying defendant with person named in a birth certificate, which it was claimed was issued on the occasion of defendant's birth.Breitmayer v. United States, 127.

(H) Documentary Evidence and Exclusion

of Parol Evidence Thereby.

430 (U.S.C.C.A.Mich.) As Act Mich. June 20, 1905 (Pub. Acts 1905, No. 330), providing that original birth certificates taken thereunder shall be transmitted to the secretary of state, was prospective, and made no provision as to records of births in custody of county clerks under Act Mich. March 27, 1867 (Pub. Acts 1867, No. 194), certified copy of birth record in county clerk's custody is, under general rules, admissible in evidence.-Breitmayer v. United States, 127.

(I) Opinion Evidence.

475 (U. S. C. C. A. Mo.) Expert testimony held admissible on the question whether smoking opium, analyzed by the witness, was of domestic or foreign manufacture.-Lee Mow Lin v. United States, 656.

(K) Confessions.

534(1) (U.S.C.C.A.N.Y.) In a prosecution for conspiring to aid Germany by destroying ships bearing munitions to the Allies, evidence held sufficient to corroborate accused's confession.-Daeche v. United States. 582.

independent testimony tending substantially to prove the corpus delicti, the confession of the accused, as so corroborated, is admissible.— Breitmayer v. United States, 127.

(A) Place of Bringing Prosecution. 114 (U.S.C.C.A.N.Y.) In a prosecution under Cr. Code, § 37, and section 298, where defendants to aid Germany conspired to attach 535(1⁄2) (U.S.C.C.A.Mich.) Where there is to munition bearing ships while in the waters of the United States infernal machines which would explode while they were on the high seas, the offense must be deemed to have been committed within the United States, which was the place where the last conscious act of the wrongdoers was performed.-Daeche v. United States, 582.

X. EVIDENCE.

(A) Judicial Notice, Presumptions, and Burden of Proof.

535(2) (U.S.C.C.A.N.Y.) While some sort of corroboration of a confession is necessary to a conviction, rule prevails in federal courts that corroborating circumstances need not be sufficient in themselves to establish the corpus delicti, either beyond a reasonable doubt or by preponderance of proof.-Daeche v. United States, 582.

(M) Weight and Sufficiency.

307 (U.S.C.C.A.La.) Act of Jan. 17, 1914, c. 9, amending Act Feb. 9, 1909, c. 100, relating to importation of smoking opium, which de-556 (U.S.C.C.A.Mich.) In prosecution for clares rebuttable presumptions arising from possession of opium, etc., held valid.-Gee Woe United States, 498.

V.

de

sale of liquor to soldiers in uniform, where government's evidence showed sale on date other than that laid in indictment, it was proper to submit to jury question whether sale occurred on date testified to, or on some other day; jury considering testimony as to date on question of witnesses' credibility.-Young v. United States, 133.

309 (U.S.C.C.A.Okl.) In a criminal prosecution, there is no presumption of good character of the accused.-De Moss v. United States, 259. 315 (U.S.C.C.A.Mich.) Evidence that fendant, who was indicted for failure to register as required by the Selective Draft Act, had 560 (U.S.C.C.A.Okl.) Proof of a fact, even been a member of the National Guard some sev- in a criminal case, need not be made beyond en or eight years previous, raises no presump- every possibility of mistake, and evidence is to tion that he was a member of the National be taken in a practical, reasonable way, and Guard at the time he failed to register.-Breit- regard given to well-known, settled methods of mayer v. United States, 127. business.-De Moss v. United States, 259.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER "XI. TIME OF TRIAL AND CONTINU- |(L) Waiver and Correction of Irregularities and Errors.

ANCE.

593 (U.S.C.C.A.Okl.) Where defendant had 901 (U.S.C.C.A.Okl.) A demurrer to the the services of able counsel throughout the evidence at the close of the case for the prosetrial, denial of a continuance on the ground of cution is waived by defendant by introducing absence of additional counsel cannot be deemed evidence in defense.-Hodson v. United States,

an abuse of the court's discretion.-Warren v. United States, 261.

595(8) (U.S.C.C.A.Okl.) Ordinarily evidence as to character of accused is not deemed of such materiality that the refusal of a continuance for the purpose of procuring such testimony will constitute error.-Warren v. United States, 261.

596(1) (U.S.C.C.A.Okl.) Where defendant was able to produce a number of character witnesses, denial of a continuance on the ground of absence of other character witnesses cannot be deemed an abuse of the court's discretion.Warren v. United States, 261.

603(2) (U.S.C.C.A.Okl.) The denial of a motion for continuance, signed only by counsel and not stating facts under oath, is proper.-Warren v. United States, 261.

XII. TRIAL.

491.

XIV. JUDGMENT, SENTENCE, AND
FINAL COMMITMENT.

992 (U.S.C.C.A.La.) Where accused was convicted and sentenced on two counts, and sentence was within competency of court to impose for offense charged in first count, it will be referred to that count if latter count be found unsupported by proof.-Gee Woe V. United States, 498.

XV. APPEAL AND ERROR, AND
CERTIORARI.

(G) Review.

1151 (U.S.C.C.A.Okl.) A motion for a continuance on the ground of the absence of witnesses and counsel is addressed to the sound discretion of the trial court, and its ruling is not subject to review, unless there was an abuse of discretion.-Warren v. United States, 261.

(E) Arguments and Conduct of Counsel. 730(2) (U.S.C.C.A.Okl.) Where the court,1166(9) (U.S.C.C.A.Mich.) Where defendant when its attention was called to improper remarks of the prosecuting attorney in his opening address, fully stated to the jury that they could only consider the evidence admitted, and not statements of counsel, the remarks must be deemed to have been effectively withdrawn, though the jury were not specifically directed to them.-Warren v. United States, 261.

was convicted on other counts as well, and
such conviction would in any event sustain the
sentence imposed, the denial of a continuance to
obtain testimony germane to only one of the
counts, though improper, is no ground for re-
United
versal, on writ of error.-Young v.
States, 133.

1169(10) (U.S.C.C.A.Okl.) In prosecution for introducing intoxicating liquor into that part of Oklahoma which was formerly Indian Territory, in violation of Act March 1, 1895, c. 145, where connection of defendants with purchase and shipment of liquor was clearly and indisputably shown, and it was proven without contradiction that one of defendants gave his check on Oklahoma bank in payment for liquors, admission of oral testimony as to amount of check and bank on which it was drawn was harmless.-De Moss v. United States, 259.

1177 (U.S.C.C.A.N.Y.) Where defendant was convicted under two indictments and sentenced under each verdict concurrently, the fact that the conviction under one indictment was erroneous cannot affect the sentence where it was warranted under the other indictment.Daeche v. United States, 582.

(H) Determination and Disposition of Cause.

1186(4) (U.S.C.C.A.Mich.) In view of Rev. St. § 1025 (Comp. St. 1916, § 1691), an inaccurate statement as to the voting precinct in which defendant resided, contained in an indictment charging failure to register as required by the Selective Draft Act, must, in view of the usual knowledge prevailing as to such locations, be disregarded.-Breitmayer v. United States, 127.

XVII. PUNISHMENT AND PREVEN

TION OF CRIME.

1208(3) (U.S.C.C.A.Mo.) A criminal statute, which fixes the penalty for its violation at im