rensice of time was left to eng bear #

Tated States. 60 Fed. 727, 13 U. S. Ag

SISTE ED quantity and quality of work, bed condiz Justle, etc. R. Co., 67 Fed. 637, 31 T. & A PUNCA +27ted in railroad grading; Elliott v. Missouri FAL 719, TIL, 40 U. S. App. 61, as to inspection and 2 af des famished: Newman v. United States. 81 Fed PLASTAJ of excavations, etc., in road building: Mith

#62. Cav. Harris, 81 Fed. 931, 54 U. S. App. 14 tumhase of bonds was conditioned on their approval by Ley: Breyman v. Ann Arbor R. Co., 85 Fed. 584. where r's date of work done was held conclusive; Logansport Sas C. T. Peru. 89 Fed. 187, when franchise gave council right fris rate. after specified time; Western Assurance Co. v. HAL 135, 20 So. 449, collecting authorities, stipulation in policy feration, held binding; Electric-Lighting Co. v. Elder, 115 Ala. 1521 So. 987, citing cases, construing term "satisfactory comple

Ky.

40

: Hot Springs Ry. v. Maher, 48 Ark. 529, 3 S. W. 641, as to quantity and quality of work on railroad; Howard v. Pensacola. etc.. R. R.. 24 Fla. 600, 5 So. 374, reviewing authorities, settlement on basis of engineer's estimates concluded plaintiff; Ross v. MeArthur, 85 Iowa, 206, 32 N. W. 126, as to classification of excarations, measurements, etc.; Covington v. Limerick, S. W. 256, reviewing cases, as to estimate of extra work done; Wilbur v. Bingham, 3 Ohio C. C. 462, where furnace was to be put in to suit purchaser, error to charge that if properly put in he must take it; Moore v. Gaus Mfg. Co., 113 Mo. 108, 20 S. W. 977, holding, when work was completed in accordance with contract, court of law had jurisdiction; Baltimore, etc., R. R. v. Brydon, 65 Md. 227, 57 Am. Rep. 326, 9 Atl. 128, where question of good faith was properly left to jury; New England Trust Co. v. Abbott, 162 Mass. 154, 38 N. E. 434, 27 L. R. A. 279, and n., citing cases, purchaser bound by agreement for appraisal of stocks; Williams v. Chicago, etc., Ry., 112 Mo. 487, 490, 495, 497, 34 Am. St. Rep. 418. 421, 424, 426, 20 S. W. 637, 638, 640, reviewing authorities, and holding, under allegations, plaintiff must show engineer's refusal to act; Railroad v. Central Lumber, etc., Co., 95 Tenn. 544, 545, 32 S. W. 636, 637, as to allowances for extra work, etc.; Jones, etc. v. Risley, 91 Tex. 7, 32 S. W. 1030, where bridge materials were subject to engineer's approval; Kilgore v. Baptist, etc., Soc., 89 Tex. 469, 35 S. W. 145, as to architect's estimates; Bottler v. Tendick, 73 Tex. 494, 11 S. W. 500, 5 L. R. A. 276, and n., builder bound by architect's acceptance; dissenting opinions in Connecticut Fire Ins. Co. v. Hamilton, 59 Fed. 264, 16 U. S. App. 366, majority holding insurance company had waived right to stipulated appraisal; Wortman v. Kleinschmidt, 12 Mont. 336, 30 Pac. 286, majority holding builder not liable for extra work, not ordered by architects; Norfolk, etc., R. Co. v. Mills, 91 Va. 643, 22 S. E. 564, majority holding engineer's mistake amounted to fraud.

Dinguished in Lewis v. Chicago, etc., Ry., 49 Fed. 709, citing

but relieving against mistakes arising from wrong constructa of contract, by engineer; Central Trust Co. v. Louisville, etc., By. 70 Fed. 284, holding contract in question did not render enCheer's decision conclusive; Marks v. Northern Pac. R. Co., 76 F946, 44 U. S. App. 714, where engineer's award and refusal to art were held to show bad faith; Crane Elevator Co. v. Clark, Fed. 708, 711, 53 U. S. App. 263, 268, collecting authorities. holdar question of bad faith should have gone to jury; Manchester Fre Assurance Co. v. Korner, 13 Ind. App. 378, 55 Am. St. Rep.

N. E. 1111, collecting cases, and holding agreement for arbiton waived: Milwaukee, etc., Ins. Co. v. Stewart, 13 Ind. App. 4,42 N. E. 292, where company lost right to arbitration by failure to submit: Moran v. Schmitt, 109 Mich. 292, 67 N. W. 326, where fusal to make estimates was held to show bad faith; G. H., etc., 2. Henry, 65 Tex. 691, 692, engineer's decision not binding, where 'ased on erroneous construction of contract; Sigler v. Beebe, 44 Va. 590, 30 S. E. 77, jury having found that there was fraud in greed measurement, new trial denied.

214 U. S. 555-562, 29 L. 248, STRANG v. BRADNER.

Bankruptcy.-Term “fraud," used in bankrupt act, defining debts not dischargeable, means positive fraud, involving moral titude or intentional wrong, not implied fraud, or fraud in law, 550.

Approved in Noble v. Hammond, 129 U. S. 68, 32 L. 623, 9 S. Ct. debt, created by innocent mingling of proceeds of collection bankrupt's funds, discharged; Ames v. Moir, 138 U. S. 311. 34 L 64, 11 S. Ct. 312, citing cases, call for delivery of goods under tract, made after bankrupt's insolvency, held fraudulent; Upsv. Briscoe, 138 U. S. 377, 34 L. 935, 11 S. Ct. 317, reviewing borities, where designation of bankrupt as trustee did not affect transaction, facts of which created simple debt; Georgia R. R. v. Cathedge, etc., Co., 75 Ga. 323, mere failure of bankrupt to account

goods held in trust, not fraud; Lawrence v. Harrington, 122 YY 412, 25 N. E. 407, where debt created by conversion of funds cted, was held discharged.

Vinguished in Herrlich v. McDonald, 80 Cal. 479, 22 Pac. 301, ng money, taken by stock dealer to purchase stock for another, bed in fiduciary capacity.

Bankruptcy. Claim against bankrupt for damages, on account rand or decelt practiced by him, is not discharged by proceedthankruptcy, even though proved against his estate, and and thereon received; accordingly, where notes were procured base representations, the debt was not discharged, pp. 560, 561. in 67 Am. St. Rep. 47, monographic note.

Partnership. If, in course of partnership business, partner B fraudulent misrepresentations of fact, to injury of innocent

persons, without notice of limitations upon his general authority, his partners are responsible therefor, though ignorant of the fraud: especially if they received and appropriated its fruits, p. 561.

Cited in Brundage v. Mellon, 5 N. Dak. 73, 63 N. W. 209, citing cases, holding evidence of partner's misrepresentations, admissible to charge firm.

114 U. S. 362-564, 29 L. 272, ALLING v. UNITED STATES.

Courts. Claims against United States, for money received from Mexico, under treaty of July 4, 1868, are claims founded on treaty over which Court of Claims has no jurisdiction, pp. 563, 564.

Distinguished in United States v. Weld, 127 U. S. 55, 32 L. 64, 8. Ct. 1002, reviewing authorities, holding claim against gross sun allowed to United States, under Geneva award, not within rule.

114 U. S. 564-575, 29 L. 277, WALES v. WHITNEY.

Courts.- Act of March 3, 1885, restored appellate jurisdiction o Supreme Court, in habeas corpus cases, over decisions of Circul Courts; this included jurisdiction over similar judgments of Suprem Court of District of Columbia, pp. 565, 566.

Cited in Ex parte Terry, 128 U. S. 302, 32 L. 408, 9 S. Ct. 78, S. C note to 13 Sawy. 461, where original application to Supreme Cour for writ of habeas corpus was entertained, Circuit Court havin made the order of commitment; In re Heath, 144 U. S. 95, 36 I 360, 12 S. Ct. 616, refusing to grant writ of error to Supreme Cour District of Columbia, in criminal case; Ex parte Mirzan, 119 U. S 586, 30 L. 513, 7 S. Ct. 342, refusing to entertain original applicatio for writ; Shoemaker v. United States, 147 U. S. 301, 37 L. 18 13 S. Ct. 391, obiter; King v. M'Lean Asylum, 64 Fed. 341, 21 U. App. 481, 26 L. R. A. 789, generally.

Limited in In re Palliser, 40 Fed. 575, holding appeal to Suprem Court would not lie in habeas corpus case, where writ is returnab before Circuit judge. Denied in Cross v. Burke, 146 U. S. 86, 8 36 L. 898, 13 S. Ct. 23, holding no appeal lay from Supreme Cour District of Columbia, in habeas corpus proceeding.

Courts. Neither Supreme Court, nor Supreme Court, District Columbia, has appellate jurisdiction over naval court-martial, over offenses which that court has power to try, p. 570.

Army and navy.- Civil courts cannot interfere with naval cour martial, in performance of its duty, by writ of prohibition, or oth writ of that nature; and may relieve person from imprisonme under order of such court, only by writ of habeas corpus, where is apparent that court-martial proceeds without jurisdiction, p. 57 Approved in Kurtz v. Moffitt, 115 U. S. 500, 29 L. 461, 6 S. Ct. 15 reviewing authorities, holding police had no authority to arrest ar detain deserter; Smith v. Whitney, 116 U. S. 177, 29 L. 601, 6

253, reviewing authorities, refusing to prohibit court-martial to aymaster for "scandalous conduct; " In re Spencer, 40 Fed. 7manding minor, convicted of desertion by court-martial; In 2nnerman, 12 Sawy. 260, 30 Fed. 178, reviewing cases, refusing >merfere by habeas corpus, where court-martial had jurisdiction

Habeas corpus is not a writ of error, though in some cases, in
rich court issuing it has appellate power over detaining court, it
may be used with writ of certiorari, for that purpose, p. 571.
Cred in Kurtz v. Moffitt, 115 U. S. 497, 29 L. 460, 6 S. Ct. 151,
wering cases, holding writ of habeas corpus not removable from

to Circuit Court; Horner v. United States, 143 U. S. 578, 36 L.
12 8. Ct. 525, citing cases, refusing to consider question as to
her alleged transaction constituted an offense; In re Tsu Tse
61 Fed. 564, petitioner could not complain that he was entitled
portation to another country.

Habeas corpus.- More than mere moral restraint necessary to take case for habeas corpus; there must be actual confinement, or * means of enforcing it, pp. 371, 572.

singuished in In re Grice, 79 Fed. 632, entertaining application writ, where petitioner, at large on bail, surrendered himself beri.

4 & 576–587, 29 L. 273, RICHMOND MINING CO. v. ROSE. Fines and minerals.— Inclusion of larger number of lineal feet ate lode, does not render mining claim void; but, unless it interwith rights previously acquired, excess may be rejected and beld good for remainder, p. 580.

hed and applied in Glacier Min. Co. v. Willis, 127 U. S. 481, 32 -74.88. Ct. 1217, to tunnel site; Lakin v. Dolly, 53 Fed. 336, holdatent vold as to excess; Doe v. Waterloo Min. Co., 54 Fed. 941, not avoided by drawing in end line to make it parallel; mson v. Spray, 72 Cal. 533, 14 Pac. 185, holding location valid, as to excess claimed; Doe v. Tyler, 73 Cal. 23, 14 Pac. 376, not invalidated, as whole, by mistake in placing monuwhereby it overlapped; Sherman v. Wrinkle, 121 Cal. 509, 53 2 application for unsurveyed lands, not wholly vitiated by that it embraces excess; Stem-Winder Min. Co. v. Emma, etc., E Co., 2 Idaho, 428, 21 Pac. 1042, location valid, though stakes set to include excessive amount; Burke v. McDonald, 2 Idaho, Pac. 50, mistake in marking, where accuracy of measurefeult, did not affect location; Hansen v. Fletcher, 10 Utah, Pac. 482, mistake of 300 feet in length did not render loca20 vold.

Ines and minerals.- Where claim of 200 feet, as discoverer, no one at time it is made, is made in good faith, in reliance

1

upon one of the constituent veins, and acted on for years before knowledge of mistake, it is justified, p. 581.

Mines and minerals. By filing of complaint in proper court proceedings to determine right of possession to mineral land were commenced, within meaning of § 2326, R. S., p. 583.

Courts. What constitutes commencement of action in State court, being matter of State law, is not reviewable in Supreme Court, as Federal question, p. 583.

Mines and minerals.-Sections 2325, 2326, R. S., intended in every instance where there was possibility of conflicting claims, to give opportunity to have conflict adjudicated before issuance of patent, p. 584.

Cited in Hoffman v. Beecher, 12 Mont. 497, 31 Pac. 94, sustaining complaint, in contest, as to description of claim.

Mines and minerals.- Where a contest is instituted under § 2326, R. S., officials of land department have no further act of Judgment to exercise until court has decided same; after that, they are bound by it, p. 585.

Approved in Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 693, 39 L. 864, 15 S. Ct. 737, reversing S. C., 61 Fed. 561, 15 U. S. App. 456, doubting effectiveness of amendment to application, pending contest; M'Evoy v. Hyman, 25 Fed. 541, certificate issued while contest pending, did not terminate the suit.

Courts

Mines and minerals. While mining claim contest is before court, undecided, land office could not resume control, because of an implied waiver of claim, by delay in court; and patent to disputed claim, thus issued, is void, p. 586.

Cited in M'Evoy v. Hyman, 25 Fed. 541, certificate issued, while contest pending, did not terminate that suit; Garrard v. Silver Peak Mines, 82 Fed. 584, holding patent might be collaterally attacked, in action at law, for want of authority to issue same.

Distinguished in Northern Pac. R. Co. v. Cannon, 54 Fed. 238, 7 U. S. App. 507, reviewing authorities, holding voidable patent could not be attacked in equity suit to quiet title.

Mines and minerals.- Where, pending contest, party obtained patent to claim on same lode, but outside not in surface conflict with claim in litigation, it was a claim initiated by party to suit, pendente lite, and could not be used in his favor, pp. 586, 587.

Miscellaneous.- Witters v. Sowles, 33 Fed. 541, miscited; Albion Min. Co. v. Richmond Min. Co., 19 Nev. 226, 8 Pac. 480, historically. See 58 Am. St. Rep. 273, monographic note as to width of lode; dissenting opinion in Bullion, etc., Min. Co. v. Eureka Hill Min. Co., 5 Utah, 72, 11 Pac. 534, majority holding discoverer of apex entitled to entire width of lode.