that they were to be operated by gripmen with lever, both trucks.
The railway company accepted in writing. The details of construc-
tion were then considered and agreed upon between the two com-
panies. Nothing further was said about brakes except that the
railway company required them to be heavy and extra powerful.
Brakes were then designed by the car company, but no designs of
them were furnished to the railway company. When 12 cars were
finished, but before any had been delivered, the agent of the railway
company went, at the request of the car company, to the shops of the
latter in Illinois, and there made a thorough examination of the 12
cars, working the brakes and carefully watching their operation. He
expressed himself entirely satisfied with them, and ordered the others
to be finished in the same way, and all to be forwarded. This was
done in five shipments between February 24 and March 30, 1888.
Before the last shipment was made the railway company, on the 23d of
March, tried the cars and found that the brakes would not work sat-
isfactorily. They notified the car company at once, and it sent its
engineer to Kansas City. When he left Kansas City he claimed that
he had remedied the trouble. On the 5th of April the car company
presented its bill for payment. On the 11th the railway company
declined to pay it unless the brakes were first made right, and asked
the car company to send a man to make the necessary changes, add-
ing that if this were not done it would make the changes itself and
charge the car company with the expense of them. The car com-
pany did send a man, who worked upon the brakes for some time,
but without remedying the difficulty. On the 12th of May the rail-
way company declined to accept the cars, and so notified the car
company. It stored the 25 cars in Kansas City, and ordered a supply
of cars elsewhere. The car company thereupon sued the railway
company, to recover the contract price for the cars. Held, (1) That
the title to the first 12 cars passed to the railway company when its
agent inspected and accepted them at the shops of the car company;
(2) that the title to the remainder passed to the railway company
when they were put on cars at Pullman Junction, to be forwarded to
that company; (3) that under the circumstances the most that the
railway company could claim was the reasonable cost of obtaining
new brakes adapted for use on the cars constructed under the con-
tract. Pullman's Palace Car Company v. Metropolitan Street Railway
Company, 94.
See POST OFFICE DEPARTMENT.
1. A corporation, acting in good faith and without any purpose of de-
frauding its creditors, but with the sole object of continuing a busi-
ness which promises to be successful, may give a mortgage to directors
who have lent their credit to it, in order to induce a continuance of
that credit, and to obtain renewals of maturing paper at a time when
the corporation, although it may not be then in fact possessed of
assets equal at cash prices to its indebtedness, is in fact a going con-
cern, and is intending and is expecting to continue in business. San-
ford Fork & Tool Co. v. Howe, Brown & Co., Limited, 312.
2. Under the circumstances detailed in the statement of facts and in the
opinion of the court in this case, it is held, that the mortgage given
by the Sanford Fork and Tool Company, by special direction of its
stockholders, to its directors to secure them for indorsing and for con-
tinuing to indorse the paper of the company, is valid. Ib.
1. Where the evidence is conflicting, and no reasonable or proper inference
can be drawn from it as matter of law, the case should be left to the
jury. Baltimore & Potomac Railroad Co. v. Mackey, 72.
2. Where the trial judge is satisfied upon the evidence that the plaintiff
is not entitled to recover, and that a verdict, if rendered for plaintiff,
must be set aside, the court may instruct the jury to find for the
defendant, and in such case no constitutional question arises; but if
the court errs as a matter of law in so doing, the remedy lies in a
review in the appropriate court. Treat Manufacturing Co. v. Standard
Steel and Iron Co., 674.
1. The omission of the formal indorsement of an indictment as "a true
bill," signed by the foreman of the grand jury, is not necessarily and
under all circumstances fatal, although it is advisable that the indict-
ment should be endorsed. Frisbie v. United States, 160.
2. Such a defect is waived if the objection be not made in the first instance
and before trial. Ib.
3. Pleading to an indictment admits its genuineness as a record. Ib.
4. The provision in the act of June 27, 1890, c. 634, 26 Stat. 182, forbid-
ding an agent, attorney, or other person engaged in preparing, pre-
senting, or prosecuting a claim for a pension under that act from
demanding or receiving a greater fee than ten dollars for his services
is constitutional. Ib.
5. An indictment for violating that provision which describes the defend-
ant as a "lawyer" is sufficient. lb.
6. The offence against that act is committed when a sum greater than ten
dollars has been taken, without regard to the fact whether the pension
money has or has not been received. Ib.
7. When the amount of the excess so taken is unknown to the grand jury,
it is proper to allege that fact in the indictment. Ib.
8. It is unnecessary to aver a demand for the return of the money wrong-
fully taken. lb.
9. The omission to charge that the offence was "contrary to the form of
the statutes in such case made and provided and against the peace and
dignity of the United States " is immaterial. lb.
10. In an indictment and prosecution under Rev. Stat. § 5480, as amended
by the act of March 2, 1889, c. 393, for a conspiracy to defraud by
means of the post office, three matters of fact must be charged in the
indictment and established by the evidence: (1) That the persons
charged devised a scheme to defraud; (2) that they intended to effect
this scheme by opening or intending to open correspondence with
some other person through the post office establishment or by inciting
such other person to open communication with them; (3) and that in
carrying out such scheme such person must have either deposited a
letter or packet in the post office, or taken or received one therefrom.
Stokes v. United States, 187.
11. An objection to the admissibility of an envelope against the defendant
in such a case upon the ground that it was not shown to be in his
handwriting is not sustained, as the bill of exceptions did not purport
to contain all the evidence.
12. Other objections to the admissibility of evidence considered and held
to be without merit. lb.
13. When a paper admitted to be in the handwriting of a defendant in a
criminal prosecution is admitted in evidence for another purpose, it is
competent for the jury to compare it with the handwriting of a letter
which he is accused of, and indicted for, writing, for the purpose of
drawing their own conclusions respecting the latter. lb.
14. The first count in an indictment containing three counts charged the
accused with "having counterfeit coin in his possession, with intent
to defraud certain persons to this grand inquest unknown." The
jury found him "guilty in the first count for having in possession
counterfeit minor coin. Not guilty as to second and third counts.”
Held, that the verdict was a general verdict of guilty under the first
count, and that the words attached did not qualify the conclusion of
guilt. Statler v. United States, 277.
15. Several objections to the admissibility of evidence considered and
disposed of. Cochran and Sayre v. United States, 286.
16. Some objections to the charge considered and disposed of. Ib.
17. The defendants requested the court to charge the jury as follows:
'You are further instructed that the defendants are presumed to be
innocent until the contrary appears beyond a reasonable doubt, and
that every reasonable doubt or presumption arising from the evidence
must be construed in their favor." The court refused to give this
instruction, but instead thereof gave a carefully prepared definition of
reasonable doubt, without referring to the presumption of innocence
which attends an accused at every stage of the proceeding. Held,
following Coffin v. United States, 156 U. S. 432, that this was error, as
the defendants were entitled to an instruction upon the point of the
presumption of innocence, if requested. Ib.
18. The offence of knowingly smuggling or clandestinely introducing
goods, etc., subject to duty into the United States without paying such
duty, in violation of the provisions of Rev. Stat. § 2865, and of con-
cealing such smuggled goods is only a misdemeanor, and the defend-
ant is only entitled to three peremptory challenges. Reagan v. United
States, 301.
19. At the request of the defendant, in a murder case, the court instructed
the jury that where the evidence showed that the defendant did not
commit the actual killing, and it was uncertain whether he did par-
ticipate in it, the jury might regard the absence of any proof of mo-
tive for the killing in finding their verdict; but the court further
added that the absence or presence of motive is not a necessary requi-
site to enable the jury to find the guilt of a party, because it is fre-
quently impossible for the government to find a motive. Held, that,
in thus qualifying the instruction the judge committed no error.
Johnson, alias Overton v. United States, 320.
20. Though the examination of the evidence leaves on this court the im-
pression that there was reasonable doubt of the guilt of the accused,
the verdict of the jury to the contrary and the action of the court
below in overruling a motion for a new trial shows that the trial court
was satisfied with the verdict, and, there being no error in the rulings,
it is not disturbed. lb.
21. In a trial for murder by shooting with a pistol it appeared that the ac-
cused and the deceased had had difficulties; that the accused, knowing
that he was to meet the deceased, had armed himself with a pistol;
that when they met the deceased and his companions were armed
with sticks; that an altercation ensued which resulted in the shooting;
and the evidence was conflicting as to who had made the first attack.
The court, under exception, instructed the jury as follows: "Now,
gentlemen, these are the three conditions which I give you in the case.
I have told you that if it is true that this defendant went up on
one side of the fence and when there struck Philip Henson in the
mouth and then shot him, that is murder. On the other hand, if it is
true that Henson and the other boys attacked him with sticks, and
while that attack was going on and in the heat of that affray, and the
sticks were not of a dangerous or deadly character, and under such
circumstances he shot and killed Philip Henson, that would be man-
slaughter; but if there was an absence of that condition, then there
is no manslaughter in it, nor could there be any self-defence in it.
There could be nothing else but this distinct grade of crime known as
murder; because self-defence, as I have before defined to you, contem-
plates the doing of something upon the part of the one slain, or the
ones acting with him, that was either actually and really so apparently
of a deadly character, or which threatened great violence to the per-
son, or that which seemed to do so. If they assaulted him with these
sticks, and they were not deadly weapons, and they were engaged in
a conflict, and in that conflict the defendant shot Philip Henson, with-
out previous preparation, without previous deliberation, without previ-
ous selection of a deadly weapon, without a contemplated purpose to
use that deadly weapon in a dangerous way, then that would be man-
slaughter, and it could not be self-defence, because the injury received
would not be of that deadly character or that dangerous nature that
could give a man the right to slay another because of threatened
deadly injury or actual great bodily injury received." Held, that this
instruction was erroneous in withdrawing from the jury the question
of self-defence, and likewise in telling them that the intentional arm-
ing himself with a pistol by the defendant, even if with a view to
self-defence, would make a case of murder unless the actual affray
developed a case of necessary self-defence. Allen v. United States, 675.
See INDICTMENT;
WITNESS.
1. Under Schedule K, clause 2, of the tariff act of March 3, 1883, c. 120,
all hair of the alpaca, goat, and other like animals, is subjected to a
uniform duty of ten cents a pound; and goat's hair is not compre-
hended in the clause relating to hair "not specially provided for."
Cooper v. Dobson, 148.
2. Under the tariff act of March 3, 1883, c. 120, rugs made as rugs, and
distinguishable as such by reason of their process of manufacture,
size, shape, pattern, etc., were subject to the duty imposed upon rugs;
and rugs made from pieces of carpets or carpetings, to the rate
imposed upon the carpet from which they were made. Beuttell v.
Magone, 154.
3. An importer of flaxseed, containing an ascertainable percentage of
impurities, composed of clay, sand, and gravel, is entitled to an allow-
ance of that percentage in assessing duties upon the gross weight of
the goods. Seeberger v. Wright & Lawther Oil and Lead Manufacturing
Co., 183.
4. Under the act of February 26, 1845, c. 22, 5 Stat. 727, a protest against
the exaction of duties on imported goods, in order to be available for
recovering the amount of duties illegally exacted, must be made at or
before their actual payment; and when the importer deposits with a
collector an amount supposed to be sufficient to pay the duties, subject
to future liquidation, and receives the goods, and on such liquidation
an amount is found to be due the importer as overpayment and is
refunded to him, a protest made after the deposit and receipt of the
goods, but before the liquidation, is too late and is of no avail. Bar-
ney v. Rickard, 352.
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