7. Two steamers on the Hudson River at night were approaching each
other head and head. One gave a short blast from its whistle to indi-
cate an intention to pass on the port side. The other answered by a
similar blast, and then gave two whistles, and changed its course so
as to cross the bow of the first vessel. This resulted in a collision
whereby the second vessel was sunken. An action at law was brought
in a state court by the owners of the sunken vessel against the owners
of the first vessel. On the trial the court was asked to instruct the
jury that the pilot who first blew the sharp whistle had the right to
determine the course which each was to adopt; that the answer by a
single whistle was an acceptance of his determination, and that it
then became the duty of the second vessel to pass the other according
to that determination; and that the second vessel was guilty of negli-
gence in giving the two whistles and in changing its course.
court refused these instructions, and instructed the jury, in substance,
that they were to determine whether those in management of the
vessels were guilty of negligence or not, and whether they did or
omitted to do that which persons of ordinary care and prudence ought
to have done. Held: (1) That in refusing to give the instructions
asked for and in charging in this general way, the obligatory force of
the rules of navigation was substantially ignored; (2) That the in-
struction did not put to the jury the question whether the second
vessel was justified in departing from the rules, which was error;
(3) That the jury should have been told that two vessels approach-
ing, head to head, and exchanging the signal of a single whistle, were
bound to pursue the course prescribed by the rules; (4) And that
they should have been further instructed that if the first vessel
assented to the signal of the two whistles, and there was error in the
course, it was at the risk of the second vessel, or, at the most, both
were in fault and there could be no recovery. lb.
See DAMAGES;
JURISDICTION, A, 24; D, 1.
ADVERSE POSSESSION.
See EJECTMENT, 1, 2;
EQUITY, 2, (5), 3.
1. The commissioners appointed by the governments of the United States
and of Russia for the transfer of Alaska under the treaty of March 30,
1867, 15 Stat. 539, had no power to vary the language of the treaty
or to determine questions of title or ownership. Kinkead v. United
States, 483.
2. The building constructed by the Russian-American Company in 1845
on land belonging to Russia became thereby, so far as disclosed by the
facts in this case, the property of the Russian government, and, being
transferred to the United States by the treaty of March 30, 1867, no
property or ownership in it remained in the Russian-American Com-
pany, which it could transfer to a private person adversely to the
United States. Ib.
1. An order allowing an appeal to this court is, so long as the appeal
remains unperfected and the cause has not passed into the jurisdiction
of the appellate tribunal, subject to the general power of a Circuit
Court over its own judgments, decrees, and orders during the existence
of the term at which they are made. Aspen Mining & Smelting Co.
v. Billings, 31.
2. If a motion or petition for rehearing is made or presented in season and
entertained by the court, the time limited for a writ of error or appeal
does not begin to run until the motion is disposed of.. Ib.
3. No appeal lies to this court from a judgment of a Circuit Court in exe-
cution of a mandate of the Circuit Court of Appeals. Ib.
4. When an appeal is allowed in open court, and perfected during the term
at which the decree or judgment appealed from was rendered, no
citation is necessary. Jacobs v. George, 415.
5. When an appeal is allowed at the term of the decree or judgment, but
is not perfected until after the term, a citation is necessary to bring in
the parties; but if the appeal be docketed here at the next ensuing
term, or the record reaches the clerk's hands seasonably for that term,
and legal excuse exists for lack of docketing, a citation may be issued,
by leave of this court, although the time for taking the appeal has
elapsed. Ib.
6. When an appeal is allowed at a term subsequent to that of the decree
or judgment appealed from, a citation is necessary; but it may
be issued, properly returnable even after the expiration of the time
for taking the appeal, if the allowance of the appeal were made
before.
7. A citation is one of the necessary elements of an appeal taken after the
term, and if it be not issued and served before the end of the next
ensuing term of this court, and be not waived, the appeal becomes in-
operative. Ib.
ANCILLARY PROCEEDINGS.
See EQUITY, 2, (1).
BAILMENT.
See CONTRACT, 2.
A bank, knowing that the county treasurer of the county had not sufficient
county funds in his hands to balance his official accounts, consented to
give him a fictitious credit in order to enable him to impose upon the
county commissioners, who were about to examine his accounts.
They accordingly gave him a "cashier's check" for $16,571.61, which
he endorsed and took to the commissioners. They received it, but
refused to discharge him or his bondsmen, and placed the check and
such funds as he had in cash in a box and delivered them to his bonds-
men. The latter deposited the money and the check in another bank
in the same place, which bank brought suit against the bank which
issued the check to recover upon it. Held, (1) That the circum-
stances under which the check was issued were a plain fraud
upon the law, and also upon the county commissioners; (2) That
their receipt of it and turning it over to the sureties was a single act,
intended to assist the sureties in protecting themselves, and was in-
consistent with the idea of releasing them from their obligation;
(3) That the question whether the evidence did or did not establish
the fact that the county was an innocent holder should have been sub-
mitted to the jury. Thompson v. Sioux Falls National Bank, 231.
See EVIDENCE, 7.
BONA FIDE HOLDER.
See BANK;
EVIDENCE, 7.
In an action to try the title to land, where there is conflicting evidence as
to certain natural objects named in running the lines, an instruction
to the jury that if, after fully considering the conflicting evidence
they are left doubtful and uncertain, they will be justified in locating
the grant by referring to such of the natural objects as are certain, is
not error. New York & Texas Land Co. v. Votaw, 24.
CASES AFFIRMED OR FOLLOWED.
1. In this case the court follows its rulings in No. 3, ante, 1. United States
v. Denver & Rio Grande Railway, 16.
2. This case is dismissed upon the authority of Chapman v. Goodnow's
Administrator, 123 U. S. 540. Wells v. Goodnow's Administrator, 84.
3. This case is not distinguishable in principle from United States Trust
Company v. Wabash Western Railway Company, 150 U. S. 287. Seney
v. Wabash Western Railway, 310.
4. Dean v. McDowell, 8 Ch. D. 345, approved and followed. Latta v. Kil-
bourn, 524.
See COURT-MARTIAL;
EVIDENCE, 6;
JURISDICTION, A, 23;
PATENT FOR INVENTION, 12;
PUBLIC LAND, 6;
RAILROAD, 2, (2).
1. Evans v. State Bank, 134 U. S. 330, distinguished from this case. Aspen
Mining & Smelting Co. v. Billings, 31.
2. Case v. Beauregard, 101 U. S. 688. Sanger v. Upton, 91 U. S. 56, and
Terry v. Anderson, 95 U. S. 628, distinguished; and shown not to con-
flict with the subsequent cases of Wabash, St. Louis & Pacific Railway
v. Ham, 114 U. S. 587; Fogg v. Blair, 133 U. S. 584; and Hawkins v.
Glenn, 131 U. S. 319. Hollins v. Brierfield Coal & Iron Co., 371.
United States v. Langston, 118 U. S. 389, explained and limited. Belknap
v. United States, 588.
CHATTEL MORTGAGE.
See CONTRACT, 1.
CIRCUIT COURT COMMISSIONER.
CLOUD UPON TITLE.
See EQUITY, 2, (2).
1. Where a bill of lading provides that in case of loss the carrier, if liable
for the loss, shall have the benefit of any insurance that may have been
effected on the goods, this provision limits the right of subrogation of
the insurer to recover over against the carrier, upon paying to the
shipper the loss. Wager v. Providence Insurance Co., 99.
2. Where the carrier is actually and in terms the party assured, the under-
writer can have no right to recover over against the carrier, even if the
amount of the policy has been paid by the insurance company to the
owner, on the order of the carrier. Ib.
3. The claim of the master of the vessel, through whose loss the loss of the
goods insured took place, to exemption from liability to the insurance
companies having been adjudicated against him, and the appeal to this
court on that judgment having been dismissed for want of jurisdic-
tion, he is estopped from again setting up that claim in this case.
The possession of property by the judicial department, whether Federal or
state, cannot be arbitrarily encroached upon, without violating the
fundamental principle which requires coördinate departments to refrain
from interference with the independence of each other. In re Swan,
petitioner, 637.
CONSPIRACY.
See EVIDENCE, 6.
The act of February 26, 1885, 23 Stat. 332, c. 164, prohibiting the importa-
tion of aliens under contract to perform labor in the United States is
Lees v. United States, 476.
See JURISDICTION, A, 12 to 16.
S. claiming to act as a constable in the State of South Carolina, and to act
under the statute of that State touching intoxicating liquors known as
the Dispensary Act, seized without warrant and carried away a cask
of liquor which had been brought into the State by a receiver operat-
ing a railroad under authority of the Circuit Court of the United
States for that district, and was held by him as an officer of that
court, awaiting its delivery to the consignee. The receiver applied to
the court which appointed him, setting forth the facts, and praying
that S. be attached and punished for contempt, and be required to
restore the property. A rule to show cause issued and S. appeared
and made answer. The court adjudged him to be guilty of contempt,
ordered him to be imprisoned until he return the property, and when
that should be done that he be imprisoned for a further period of three
months, and until he should pay the costs. Held, (1) That the Cir-
cuit Court had jurisdiction; (2) That its determination that the act
of S. was illegal, and that he was in contempt, was not open to review
in this proceeding; (3) That it was not necessary to determine
whether he could be required to pay the costs, as he had not yet
restored the goods, nor suffered the three months' imprisonment.
In re Swan, petitioner, 637.
1. A number of horses, mortgaged to secure the payment of a promissory
note of their owner given to the mortgagee, were, under the provisions
of a statute of Montana relating to chattel mortgages, sold by a sheriff
on the maturity of the note without payment. With the assent of
the attorney of the mortgagee, who was present at the sale, the pur-
chaser paid a part of the purchase price in cash, and left the horses
with the sheriff as security for payment of the remainder in five days.
On the expiration of that time he failed to pay the balance. The
attorney refused to receive the sum paid in cash and the horses as
security for the remainder; but the principal received the amount
paid in cash, and sued the sheriff and his bondsmen to recover the
remainder. Held, that he could not repudiate the transaction in
part and ratify it in part; and that having ratified it in part by the
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