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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