duty. The importer declined to pay the excess of duty so imposed,
and the United States commenced this action to recover it. Held,
That the duty of sixty cents a pound was properly imposed, and that
there was no error in the rulings of the trial court which are set forth
in the opinion of this court. Patton v. United States, 500.

8. The plaintiff below imported into the port of New York in 1887 and
1888 a quantity of pieces of glass, cut in shapes to order and with
bevelled edges, intended to be used in the manufacture of clocks.
The collector classified them as "articles of glass, cut, engraved,” etc.,
subject to a duty of 45 per cent ad valorem. The importer claimed
that they were dutiable as "parts of clocks," and as such subject to a
duty of thirty per cent ad valorem; paid the duty imposed under pro-
test; and brought this action to recover the excess. The trial court
instructed the jury that the burden was on the plaintiff to establish
that the articles were parts of clocks; that in determining that ques-
tion it would not be necessary for the jury to say that they were ex-
clusively used for that purpose; that the fact that an article chiefly used
for one purpose had been used by some for a purpose for which it was
not originally intended would not change its tariff nomenclature; and
if the jury should find that the articles were chiefly used as parts of
clocks, that that would determine their tariff classification, but on the
other hand, that they must be chiefly and principally used for that
purpose; that if they are articles with no distinguishing character-
istic, just as applicable for use in fancy boxes or in coach lamps as
they are for clocks, then it would be entirely proper to say that they
have no distinguishing characteristics as parts of clocks, that they
might be used for one purpose just as well as for another; and if the
jury should find as to those articles, or any of them, that they have
several uses to which they are perfectly applicable, then as to those
articles the verdict should be for the defendant. Held, that the in-
structions were manifestly correct, and that in giving the rule of chief
use, the principles by which it was to be ascertained were fully stated
exactly in accordance with the law announced by this court in Magone
v. Heller, 150 U. S. 70. Magone v. Wiederer, 555.

9. Papers, coated, colored and embossed to imitate leather, and papers
coated with flock, to imitate velvet, imported into the United States in
1888, were subject, under Schedule M of the tariff act of March 3, 1883,
c. 121, to a duty of 25 per cent ad valorem, as “paper hangings
not specially enumerated or provided for in this act," and not to a
duty of 15 per cent ad valorem, as manufactures of paper, or of which
paper is a component material, not specially enumerated or provided
for in this act. Dejonge v. Magone, 562.

DEED.

See LOCAL Law, 3.

DISTRICT JUDGE.

1. There being a vacancy in the office of District Judge for the District of
South Carolina from January 1, 1894, to February 12, 1894, and the
term of that court for the Western District being fixed by law for the
fifth day of February, 1894, one of the Circuit Judges of the circuit
designated and appointed a Judge of one of the District Courts in
North Carolina, within the same circuit, to hold and preside over
that term. Court was so held and adjourned from day to day. Feb-
ruary 12 a commissioned Judge appeared. Plaintiff in error was
tried upon an indictment returned against him, found guilty and sen-
tenced. Held, (1) That it is within the power of Congress to provide
that one District Judge may temporarily discharge the duties of that
office in another district; (2) that whether existing statutes author-
ized the appointment of the North Carolina District Judge to act as
District Judge in South Carolina is immaterial; as, (3) he must be
held to have been a judge de facto, if not de jure, and his actions, as
such, so far as they affect third persons, are not open to question.
McDowell v. United States, 596.

2. Where there is an office to be filled, and one acting under color of
authority fills the office and discharges its duties, his actions are those
of an officer de facto, and are binding on the public. Ib.

EMINENT DOMAIN.

1. The authority of a legislature to enact provisions for taking private
property for public use rests upon its right of eminent domain; and
it is a condition precedent to its exercise that the statute conferring
the power make reasonable provision for compensation to the owner
of the land. Sweet v. Rechel, 380.

2. Unless the constitution of the State in which the lands are situated
requires payment or tender of payment for land so taken for public
use before the rights of the public therein can become complete, a
statute which authorizes the taking of the property for public use and
directs the ascertainment of the damages without improper delay and
in legal mode, and which gives the owner a right to judgment
therefor, to be enforced by judicial process, is sufficient to transfer
the title. Ib.

EQUITY.

1. When a decree in chancery awards to a party in the suit a portion of a
special fund, forming one of the matters in dispute therein, and denies
to him the right to a part of a general fund, forming another and dis-
tinct matter in dispute, his acceptance of the awarded share in the
special fund does not operate as a waiver of his right of appeal from
so much of the decree as denies to him a share in the general fund.
Gilfillan v. McKee, 303.

2. Where a decree is several as to different defendants, and the interest

represented by each is separate and distinct from that of the others,
any party may appeal separately, to protect his own interests. Ib.
3. Some years before the commencement of the civil war, Cochrane, who
had already acted as agent of the Choctaws in prosecuting their claims
against the United States, contracted with them to continue to prose-
cute all their unsettled claims, and they contracted to pay him for such
services thirty per cent of all sums collected through his efforts, when
they should be paid by the United States. Under this contract he had
collected a large amount when the war broke out, and the Choctaws
sided with the South. On the termination of the war Latrobe was
employed by the Choctaws in supporting such claims, and did valu-
able service. In 1866 Cochrane, being about to die, and desiring to
secure pay for the services he had rendered, made a verbal arrange-
ment for assigning the contract to Black, and by will authorized his
executor to sell, assign or compromise his claims. He also recognized
by his will that Lea was entitled to an interest in the contract equal to
his own. This interest afterwards became vested in Gilfilian and his
associates. Cochrane's executor, McPherson, agreed with Black for
the continued prosecution of the claims on the terms named in the orig-
inal contract, to which the Choctaws assented. Black and his partner,
Lamon, and Lamon individually, continued acting under this contract
until 1870, when the Choctaws made a new contract with McKee and
his partner to prosecute their claims; and (the partner soon dying)
this contract was executed by McKee. Under it the prosecutor was
to receive thirty per cent of the amounts awarded, and it was pro-
vided that he should adjust the claims of all parties who had previously
prosecuted claims for the Choctaws and should pay to the widow of
Cochrane five per cent of the thirty per cent. In 1881 the question of
the liability of the United States on these claims was referred to the
Court of Claims and a judgment was rendered in favor of the Choc-
taws, which was substantially affirmed by this court, 119 U. S. 1.
Congress then made an appropriation of $2,858,798.62 for the payment
of that judgment. Before this appropriation was made, and in view
of it, the Choctaw council recognized the contract with McKee, and
another with Luce, as valid, and appropriated thirty per cent of the
amount to be received from Congress under the appropriation to their
satisfaction. The council also by the same act appropriated $14,140
as a sum shown to be due to Cochrane for services performed by him
in his lifetime. After the passage of the appropriation bill by Con-
gress McKee drew from the Treasury twenty-five per cent of the
whole judgment, and Luce five per cent, the two making the thirty
per cent. Suits in equity were then commenced against McKee by
Lamon, as surviving partner of Black & Lamon; by Gilfillan and
others interested with him; by McPherson as executor of Cochrane;
and by Mrs. Latrobe as executrix of her husband; setting up their
various claims upon the fund. McKee filed a bill of interpleader in

the Lamon case, and subsequent proceedings were had in the several
suits as set forth in detail in this and the following two cases. They
resulted in decrees that one-half of the special fund should be paid to
McPherson, as executor of Cochrane, and the other half to Gilfillan
and his associates; and that the general fund should be distributed to
Cochrane's widow, to Latrobe, and to Lamon, in specified proportions.
Lamon was awarded $35,000 and interest for his services and disburse-
ments, and the claims of Lamon and Black, as assignees of the Coch-
rane contract, and as surviving partners, were disallowed. McPherson,
as executor, appealed from so much of the decree as denied him par-
ticipation in the general fund; Gilfillan and others from the decree
distributing the general fund, and from a decree dismissing their cross-
bill; McKee from the decree giving a distributive share in the general
fund to Latrobe; and Lamon and Black from the decree disallowing
their claim. Held, (1) That McPherson had a right of appeal from
the decree excluding him from participation in the distribution of
the general fund, although he had accepted payment of his share of the
special fund; (2) that the sum awarded to Mrs. Cochrane by the
Choctaws was intended as a donation to her, and not as compensation
to Cochrane, and that the judgment of the court below to that effect
should be sustained; (3) further holdings were made in regard to
the contentions in McKee v. Lamon, ante, 317, and McKee v. Latrobe,
ante, 327, which will be found set forth in the headnotes to those cases
respectively. Ib.

4. On the facts set forth in the headnote to Gilfillan v. McKee, it is in
this suit, further Held, (1) That when the Choctaws transferred the
work from Black & Lamon to McKee, there was no intention on the
part of anybody to ignore what had already been done; (2) that
Lamon, as representing the surviving partners of Black, Lamon &
Company, was entitled to recover the reasonable value of their services
from the date of the assignment by McPherson to the date of the
McKee contract. McKee v. Lamon, 317.

5. On the facts set forth in the headnote to Gilfillan v. McKee, just de-
cided, it is further held that Latrobe was entitled to receive from the
general fund the value of his services, and that their value was
$75,000. McKee v. Latrobe, 327.

-

6. In a proceeding — commenced in a court of the State of Washington,
under the statutes of that State, by filing a petition to set aside a
judgment charged to have been obtained there through fraud and
collusion between the plaintiff's attorney of record and the defend-
ant's attorney of record, and against the plaintiff's instructions touch-
ing a pretended compromise-and removed on the defendant's
motion to the Circuit Court of the United States for that Circuit, it
is Held, that the cause, although in the nature of a bill in equity,
remained, so far as the rights of the plaintiff were concerned, a special
proceeding under the territorial statute, and that the powers of the

Federal court, in dealing with it, were gauged not merely by its gen-
eral equity jurisdiction, but by the special authority given the state
courts by statute. Cowley v. Northern Pacific Railroad Co., 569.
7. Federal courts may enforce on their equity or admiralty side new
rights or privileges conferred by state or territorial statutes as
they may enforce new rights of action, given by statute, upon their
common law side. Ib.

8. The averment in such a petition that the case was a case of fraud
within the provisions of the statute of the State was sufficient to give
the Federal court jurisdiction to act under the statute, and such juris-
diction could not be defeated by proof that no fraud was actually
committed; but the plaintiff would be entitled to recover if he were
able to show that he never assented to the pretended compromise, or
that he repudiated it, and revoked the authority of his attorneys. Ib.
See CONTRACT;
MORTGAGE;
JURISDICTION,
TRUST.

B;

ESTOPPEL.

1. The facts set up by the defendant as an estoppel suggest the rule "de
minimis non curat lex." Wisconsin Central Railroad Co. v. Forsythe, 46.
2. L. filed his petition in a state court of Nebraska, setting forth that he
was the owner, as trustee for two infants, of an undivided two-thirds
interest in a tract of land in that State, and individually in his own
right of the other undivided third; that the lands yielded no revenue
and were encumbered with unpaid taxes, etc.; and praying for leave
to sell or mortgage one-half of the lands, declaring his willingness to
join in the deed or mortgage as to his individual interest. A supple-
mentary petition accompanied this and was filed with it, certifying to
the integrity of L., and praying that power might be given him to sell
or mortgage the premises as asked. This petition was signed by sev-
eral parties in interest, among whom was H. The court, in its decree,
recited the title as stated in the petition, and authorized the sale as
asked for. On a bill filed by H. to establish his title to one undivided
third part of the lands, and prosecuted after his death by his admin-
istrator, Held, that the alleged title of H. was res judicata; that he
was estopped from maintaining this suit; and that it was not open to
him or his representative in this suit to question the authority of the
attorney of H. in the proceedings in the state court. Hilton's Admin-
istrator v. Jones, 584.

EVIDENCE.

1. It is competent to explain by proof declarations of a privy in interest,
admitted in evidence without objection, although they might have
been found inadmissible, if objected to. White v. Van Horn, 3.

VOL. CLIX-46