ABSENT DEFENDANTS, SERVICE ON.
1. Under section 56 of the Oregon Code referred to in the opinion of the court as in force in the District of Alaska, when an affidavit shows that the defendant is a non-resident of the district, and that personal ser- vice cannot be made upon him, and the marshal or other public officer to whom the summons was delivered returns it with his indorsement that after due and diligent search he cannot find the defendant, such proof is sufficient to give jurisdiction to the court or judge to decide the question of foreclosure of a mortgage on real estate of the defend- ant situated in that district. Marx v. Ebner, 314.
2. In such a case facts must appear from which it will be a just and rea- sonable inference that the defendant could not, after due diligence, be found, and that due diligence has been exercised; and such an infer- ence is reasonable when proof is made that the defendant is a non- resident of the State, Territory or District, and there is an affidavit that personal service cannot be made upon him within its borders and there is a certificate of the marshal to the effect of the one which ap- pears in this case. Ib.
1. A stipulation in a bill of lading that all claims against a steamship com- pany, or any of the stockholders of the company, for damage to mer- chandise, must be presented to the company within thirty days from the date of the bill of lading, applies, though the suit be in rem, against the steamship carrying the property covered by the bill of lad- ing. Queen of the Pacific, 49.
2. In view of the facts that the loss occurred the day after the bill of lading was signed, and the shippers were notified of such loss within three days thereafter, the stipulation was a reasonable one, and a failure to present the claim within the time limited was held a bar to recovery against the company in personam or against the ship in rem. Ib. 3. The reasonableness of such notice depends upon the length of the voy- age, the time at which the loss occurred, and all the other circumstances of the case. Ib.
ATTACHMENT.
See ILLINOIS, LOCAL LAW of.
ATTORNEY AT LAW.
See CLAIMS AGAINST THE UNITED STATES, 3.
CASES AFFIRMED OR FOLLOWED.
1. These cases do not differ materially from the one just decided, (ante, 1), except as to the year for which the taxes were assessed. Yazoo & Mississippi Valley Railroad Co. v. Adams, 26.
2. The decision in this case follows that in No. 387, ante 109. Neeley v. Henkel (No. 2), 126.
3. Hewitt v. Schultz, ante, 139, followed in regard to the construction of the act of July 2, 1864, c. 217, to be observed in the administration of the grant of public lands to the Northern Pacific Railroad Company. Moore v. Cormode, 167.
4. Hewitt v. Schultz, ante, 139, again followed. Moore v. Stone, 180. 5. Blackburn v. Portland Gold Mining Company, 175 U. S. 571, and Sho- shone Mining Company v. Rutter, 177 U. S. 505, affirmed and applied. Mountain View Mining & Milling Co. v. McFadden, 533.
6. The judgment below is affirmed on the authority of Freeport Water Co. v. Freeport City, ante, 587. Danville Water Company v. Danville City,
7. So far as the contentions in this case are the same as those passed upon in Freeport Water Company v. Freeport City, ante, 587, and in Danville Water Company v. Danville City, ante, 619, they are governed by those cases. Rogers Park Water Company v. Fergus, 624.
See EJECTMENT, 4.
NATIONAL BANK, 4.
CHINESE RESIDENTS IN THE UNITED STATES.
1. Li Sing was a Chinaman who, after residing for years in the United States, returned temporarily to China, taking with him a certificate purporting to have been issued by the imperial government of China, at its consulate in New York, and signed by its consul, stating that he was permitted to return to the United States, that he was entitled to do so, and that he was a wholesale grocer. On his return to the United States by way of Canada, he presented this certificate to the United States Collector of Customs at Malone, New York, who cancelled it and permitted him to enter the country. Subsequently he was brought be- fore the Commissioner of the United States for the Southern District of New York, charged with having unlawfully entered the United States, being a laborer. At the examination he set up that he had a right to remain here, and that he was a merchant. The Commissioner found that, on his departure from the United States, he was and had long been a laborer, and ordered his deportation. Held, that the de- cision of the Collector at Malone was not final, and that by the act of October 1, 1888, c. 1064, the certificate issued to him by the Chinese consul on his departure from the United States was annulled. Li Sing v. United States, 486.
2. Fong Yue Ting v. United States, 149 U. S. 698, affirmed and followed, especially to the points: (1) That the provision of the statute which puts the burden of proof upon the alien of rebutting the presumption arising from his having no certificate, as well as the requirement of
proof "by at least one credible white witness, that he was a resident of the United States at the time of the passage of the act," is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own government; (2) that the requirement not allowing the fact of residence here at the time of the passage of the act to be proved solely by the testimony of aliens in a like situation was a constitutional pro- vision; and (3) that the question whether, and upon what conditions these aliens shall be permitted to remain within the United States, be- ing one to be determined by the political departments of the Govern- ment, the judicial department cannot properly express an opinion upon the wisdom, the policy, or the justice of the measures enacted by Con- gress in the exercise of the powers confided to it by the Constitution over this subject. Ib.
CLAIMS AGAINST THE UNITED STATES.
1. It is entirely plain that there was no fraud in this case, and therefore this ground for the complainant's relief cannot be sustained. United States v. Beebe, 343.
2. A District Attorney of the United States has no power to agree upon a compromise of a claim of the United States in suit, except under cir- cumstances not presented in this case. Ib.
3. An attorney, by virtue of his general retainer only, has no power to com- promise his client's claim; and a judgment entered on a compromise made under such circumstances, is subject to be set aside on the ground of the lack of authority in the attorney to make the compromise on which the judgment rests. Ib.
4. Generally speaking the laches of officers of the Government cannot be set up as a defence to a claim made by the Government. Ib.
5. When an agent has acted without authority, and it is claimed that the principal has thereafter ratified his act, such ratification can only be based upon a full knowledge of all the facts upon which the unauthor- ized action was taken. Ib.
1. The statute of Massachusetts of 1887, c. 435, by which "Whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other State, or once in this and once at least in any other State, for terms of not less than three years each, shall, upon convic- tion of a felony committed in this State after the passage of this act, be deemed to be an habitual criminal, and shall be punished by im. prisonment in the State prison for twenty-five years," is constitu- tional. McDonald v. Massachusetts, 311.
2. The act of Congress authorizing Circuit Courts to appoint commissioners is constitutional. Rice v. Ames, 371.
3. The decisions of the highest court of a State upon the question whether a particular act was passed in such manner as to become, under the
state constitution, a law, should be accepted and followed by the Fed- eral courts. Wilkes County v. Coler, 506.
There is no complaint in this case that the rates fixed by the ordinance of 1897, passed by the city council of Chicago, were unreasonable; and as the plaintiff in error relies strictly on a contractual right, and as it has no such right, the judgment below is affirmed. Rogers Park Water Company v. Fergus, 624.
1. The Mississippi constitution of 1890 provided that every new "grant of corporate franchises" should be subject to the provisions of the consti- tution. Where several railroads were consolidated, subsequent to the adoption of his constitution, by a contract, under which the constitu- ent companies were to go out of existence, their officers to resign their trusts in favor of officers of the new company, their boards of directors supplanted by another board, the stock of the constituent companies to be surrendered and new stock taken therefor, or, in lieu of that, that the old stock should be recognized as the stock of the new company, and that the road should be operated by men holding their commissions from the new company, it was held that a new grant of corporate fran- chises had been made, and the consolidated company was subject to the new constitution. Yazoo & Mississippi Valley Railway Co. v. Adams, 1.
2. Where two companies agree together to consolidate their stock, issue new certificates, take a new name, elect a new board of directors, and the constituent companies are to cease their functions, a new corporation is thereby formed subject to existing laws. Ib.
3. For the purpose of procuring a decree enjoining a corporation from act- ing as such on the ground of the nullity of its organization, it is not necessary that the individual corporators or officers of the company be made defendants, and process be served upon them as such; but, the State by which the corporate authority was granted is the proper party to bring such an action through its proper officer, and it is well brought when brought against the corporation alone. New Orleans Debenture Redemption Co. v. Louisiana, 320.
4. The State has the right to determine, through its courts, whether the conditions upon which a charter was granted to a corporation have been complied with. Ib.
1. Bird was indicted for murder. The killing was admitted, but it was claimed to have been done in self-defence. At the trial a government witness testified "that in the month of August, when the defendant,
in company with the deceased Hurlin, R. L. Patterson, Naomi Strong and witness, were going up the Yukon River in a steam launch, towing a barge loaded with their provisions, Hurlin was steering; that the de- fendant was very disagreeable to all the other persons; that when they would run into a sand bar he would curse them; he would say: 'The Dutch sons of bitches don't know where to run it.' On one occasion they were getting wood on the bank of the river, and Bird got out and wanted to hit Patterson. Witness didn't remember exactly what was said, but defendant called Patterson a 'son of a bitch,' and told him he would hammer the devil out of him,' and witness and the others would not let them fight. And if anything would go wrong, he, defendant, would not curse in front of witness and the others' faces, but defendant would be disagreeable all the way along, and would make things very disagreeable." This evidence was excepted to and the court held that its only doubt was whether the evidence, though improperly admitted, was of sufficient importance to call for a reversal of the judgment, but it sustained the exception. Afterwards the Gov- ernment, to maintain the issues on its part, offered the following testi- mony of the witness Scheffler: That in the latter part of March, 1899, after Patterson had been carried to Anvik, Bird made a trip up the river and came back with a man by the name of Smith; that Smith left and the next day after that Bird was very disagreeable and tried to pick a fight with the woman, Naomi Strong; he acted very funny, you had to watch him and be careful. He got awful good after that and everything was just so. It was "Charles this," and "Naomi this." To which testimony defendant excepted, and the exception was sus- tained. Bird v. United States, 356.
2. The court at the request of the Government instructed the jury that “if they believed from the evidence beyond a reasonable doubt that the de- fendant Bird, on the 27th day of September, 1898, at a point on the Yukon River about two miles below the coal mine known as Camp Dewey, and about 85 miles above Anvik, and within the District of Alaska, shot and killed one J. H. Hurlin, and that said killing was malicious, premeditated, and willful, and that said killing was not in the necessary defence of the defendant's life or to prevent the infliction upon him of great bodily harm, then it is your duty to find the defend- ant guilty as charged in the indictment." Held that this was substan- tial error. Ib.
1. There is no merit in the contention that Article 401 of the Penal Code of Cuba, which provides that the public employé, who, by reason of his office, has in his charge public funds or property, and takes or con- sents that others should take any part therefrom, shall be punished, applies only to persons in the public employ of Spain. Spain, having withdrawn from the island, its successor has become "the public," to which the code, remaining unrepealed, now refers. Neeley v. Henkel (No. 1), 109.
2. Within the meaning of the act of June 6, 1900, c. 793, 31 Stat. 656, pro-
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