ing drainage bonds issued by the county.- | in federal court held, despite Rev. St. § 914.
Clearwater County v. Pfeffer, 373.
exempting equity cases, not charged with notice
188 (U.S.C.C.A.) That a county had out- of suit; no lis pendens having been filed as re-
standing warrants held no defense to a pro- quired by Act La. No. 22 of 1904.-United
ceeding to enforce a judgment obtained on States v. Calcasieu Timber Co., 386.
bonds of the county.-Clearwater County v.366 (1) (U.S.C.C.A.) Where the highest
Pfeffer, 373.
court of a state has interpreted a state statute
in a way showing that it is considered a posi-
tive enactment and not merely a re-enactment
of the common law, as to rights arising there-
after, its construction is binding on the federal
courts.-Babbitt v. Read, 252.
226 (U.S.C.C.A.) An execution on a judg-
ment against a county or other public corpora-
tion may not be lawfully issued and levied on
the funds or property acquired by it in its
governmental capacity, unless expressly author-366(1) (U.S.C.C.A.) Ordinarily,
ized by statute.-Clearwater County v. Pfeffer,
373.
Under Rev. St. § 916 (Comp. St. 1913, §
1540), and the statutes of Minnesota, a fed
eral court is without authority to issue and
levy an execution for the immediate enforce-
ment of a judgment rendered against a county.
-Id.
court accepts construction of statutes of state
by highest court thereof, but if such decision is
rendered after rights have accrued or liabilities
have been incurred, which are subject of deter-
mination by federal court, latter court is not
bound by such decision, although it will lean to
agreement with state court.-State of Missouri
v. Angle, 640.
A decision of the Supreme Court of Missouri
with reference to priority of creditors of private
See Criminal Law, 878; Indictment and banker in assets of bank held not an adjudica-
Information, 128.
COURT RULES CITED.
Equity Rule 26.-236 F. 544.
20: Aliens, 32; Bank-
ruptcy, 11, 20, 293; Criminal Law,
113.
VII. UNITED STATES COURTS.
(A) Jurisdiction and Powers in General.
264(3) (U.S.C.C.A.) A suit by the receiver
of a railroad company appointed by a federal
court held ancillary and within the jurisdic-
tion of the court without regard to the citizen-
ship of the parties.-Vallery v. Denver & R. G.
R. Co., 366.
(D) Jurisdiction Dependent on Amount or
Value in Controversy.
tion that the private bank or banker was an
entity distinct from owner.-Id.
366(10) (U.S.C.C.A.) The remedy by at-
tachment being statutory, the rights of an
attacking creditor in a federal court are gov
erned by the state law, as declared by the high-
est court of the state.-Loewe v. Savings Bank
of Danbury, 496.
IV. ACTIONS FOR BREACH.
125 (1) (U.S.C.C.A.) The defendant in an
action for breach of a covenant of seisin is en-
titled in reduction of damages to the benefit of
any profits derived from the land by plaintiff,
and for which by reason of lapse of time he is
not liable.-Mather v. Stokely, 334.
See Master and Servant, 124, 285.
330 (U.S.C.C.A.) A federal court of equity
is not without jurisdiction to render a decree
for an injunction against continuing trespasses,
where threatened irreparable injury is alleged See Witnesses, 389.
by the mere fact that no proof has been made
of the specific amount of that injury.-Moline
Plow Co. v. Omaha Iron Store Co., 65.
(E) Procedure, and Adoption of Practice
356 (U.S.C.C.A.) Where record was printed
for use by trial court in deciding the case and
even most immaterial testimony was printed
in the form of questions and answers, held, that
there was no compliance with Equity Rule 75,
cl. "b" (198 Fed. xl, 115 C. C. A. xl); but,
parties having acted in good faith, and no
previous ruling having been had, record will be
received.-Firestone Tire & Rubber Co. v. Se-
berling, 203.
(F) State Laws as Rules of Decision.
363 (U.S.C.C.A.) Bona fide purchaser from a
patentee of land against whom suit was pending
See Bankruptcy, 495; Banks and Bank-
ing, 234-257; Conspiracy, 43, 48:
Counterfeiting; Fish, 13, 15; Grand Jury;
Indians, 38; Indictment and Information:
Prostitution, 1.
(A) Place of Bringing Prosecution.
113 (U.S.C.C.A.) The District Court for
Ohio held to have jurisdiction under Cr. Code,
37, formerly Rev. St. § 5440, and Rev. St.
731, of a prosecution for a conspiracy to use
mails to defraud where some of the overt acts
occurred in Ohio and others in Michigan.-Shea
v. United States, 307.
another defendant.-Shepard v. United States,
283.
(G) Necessity, Requisites, and Sufficiency
of Instructions.
308 (U.S.C.C.A.) While accused, at the be-
ginning of the trial, is presumed to be innocent, 776(2) (U.S.C.C.A.) A charge on evidence of
yet whenever the proof shows beyond a reason-
able doubt his guilt, then the presumption of
innocence disappears from the case.-Shepard
v. United States, 283.
322 (U.S.C.C.A.) Where an Assistant At-
torney General signed a communication for
and on behalf of the Attorney General, it must
be presumed that he was acting lawfully and
not usurping authority.-May v. United States,
good character held erroneous as in effect de-
priving accused of all benefit of such evidence.-
Perara v. United States, 61.
789 (12) (U.S.C.C.A.) An instruction, de-
fining reasonable doubt, held not objectionable
in allowing verdict of guilty on conviction upon
which one would act in more weighty affairs of
life.-Shepard v. United States, 283.
814(8, 9) (U.S.C.C.A.) Instruction
on au-
thority of officer of national bank to loan funds
(C) Other Offenses, and Character of Ac-derived from general deposits held properly re-
fused, not being applicable to the evidence in
prosecution for converting and abstracting the
funds of the bank.-Sheridan v. United States,
369(1) (U.S.C.C.A.) In a prosecution for
conspiracy to use the United States mails pur-
suant to a scheme to defraud, evidence of other
swindles by defendants held admissible to show 823(12) (U.S.C.C.A.) Where the court
that all were engaged in conspiracy.-Shea v. stated the rules of law as to the credibility of
United States, 307.
witnesses, an instruction that they should not
arbitrarily exercise their power to judge wit-
nesses' credibility, but should exercise legal dis-
cretion, is not bad as failing to define that term.
In a prosecution for conspiracy to use the
mails to defraud, evidence that defendants were
parties to a confidence game held admissible
only to show the intimate relations between the-Shepard v. United States, 283.
parties.-Id.
823 (14) (U.S.C.C.A.) In view of another
371(1) (U.S.C.C.A.) In a prosecution for un-instruction, an instruction, authorizing convic-
lawful assault upon a young girl, evidence that tion upon circumstantial evidence, held not ob-
accused had nearly three years previously as- jectionable as failing to charge that every ele-
saulted another young girl held not admissible ment of the offense should be established.-
to show intent.-Hall v. United States, 181. Shepard v. United States, 283.
371 (1) (U.S.C.C.A.) In a prosecution for
conspiracy to use mails in pursuance of a
scheme to defraud, evidence showing that de-
fendants perpetrated scheme upon another with-
out use of mails held admissible on question of
their intent.-Shea v. United States, 307.
823 (15) (U.S.C.C.A.) In view of another
instruction, an instruction, urging the jury to
agree, held not erroneous as failing to inform
them that, before convicting, each juror should
be convinced of accused's guilt beyond a reason-
able doubt.-Shepard v. United States, 283.
(H) Requests for Instructions.
In prosecution for conspiracy to use the mails
to defraud, evidence of a similar swindling
scheme by defendants held not inadmissible be-829 (1) (U.S.C.C.A.) The refusal of re-
cause proof of intent was unnecessary.—Id.
quested instructions covered by those given is
371(1) (U.S.C.C.A.) In prosecution for con- not error.-Shepard v. United States, 283.
verting and abstracting funds of national bank, 829(1) (U.S.C.C.A.) The refusal of a request-
evidence of other offenses not charged in in- ed charge covered by one given is no ground for
dictment held admissible to show intent.-Sheri- complaint, the court not being bound to follow
dan v. United States, 437.
the language of the request.-Brand v. United
States, 409.
878(2) (U.S.C.C.A.) Where there was evi-
dence to support a conviction under one count
of the indictment, and there was a single sen-
tence upon the two counts, the conviction will
not be reversed, as without support in evi-
dence, though one of the counts was not estab-
lished.-Brand v. United States, 409.
885 (U.S.C.C.A.) In a prosecution under
Act June 26, 1906, § 5, for failure to raise or
lower 25 feet of net of heart of fish trap, within
a specified time to afford free passage to fish,
recommendation by jury to clemency on ground
that accused had practically complied with stat-
ute held not to invalidate conviction on ground
that such recommendation constituted special
verdict.-Thlinket Packing Co. v. United States,
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
(L) Waiver and Correction of Irregulari-
ties and Errors.
901 (U.S.C.C.A.) Where defendant, after See Appeal and Error, 1067; Damages,
112; Nuisance, 49, 50.
the denial of his motion for directed verdict on
the ground of insufficiency of the evidence, in-
troduced evidence, the motion was waived where
it was not renewed at the close of the trial. See Railroads, 305–350.
Thlinket Packing Co. v. United States, 319.
XV. APPEAL AND ERROR, AND
CERTIORARI.
(B) Presentation and Reservation in Low-
er Court of Grounds of Review.
1032(3) (U.S.C.C.A.) Unless objections to
the form of an indictment are pointed out by
demurrer, or otherwise taken advantage of on
trial, such objections cannot be urged after ver-
dict, unless they affect the substantial rights of
accused.-Sheridan v. United States, 437.
1036(8) (U.S.C.C.A.) A conviction will not
be reversed for insufficiency of evidence, where
that question was not raised below, unless nec-
essary to prevent failure of justice.-Gillette v.
United States, 405.
1045 (U.S.C.C.A.) An assignment of error
as to a matter on which the trial court did not
rule will not be considered on appeal.-May v.
United States, 547.
62(1) (U.S.C.C.A.) The rule that one in-
jured by another's tort should make reasonable
efforts to avoid enhancement of the damages
does not apply to cases where extraordinary
sonably prudent man would do under the cir
expense is necessary, the test being what a rea
cumstances.-American Smelting & Refining
Co. v. Riverside Dairy & Stock Farm, 562.
VI. MEASURE OF DAMAGES.
(B) Injuries to Property.
1156 (2) (U.S.C.C.A.) The discretion of the
court, in the denial of a motion for new trial,
where there is evidence to support the verdict,112 (U.S.C.C.A.) The measure of damages
is not reviewable on error.-Shepard v. United for injuries to growing crops from smelter
smoke, etc., is the difference between the mar
States, 283.
ket value of crops that would have been raised
1169(1) (U.S.C.C.A.) Evidence, in prosecu- and that of crops raised less the expense saved.
tion for converting and abstracting funds of na--American Smelting & Refining Co. v. River-
tional bank, held not prejudicial to defendant, side Dairy & Stock Farm, 562.
though possibly immaterial.-Sheridan v. Unit-
1169(11) (U.S.C.C.A.) In a prosecution
for conspiracy to use mails to defraud, admis- See Time, 9.
sion of evidence that defendants participated in
a confidence game wholly disassociated with the
conspiracy held prejudicial in view of the charge
tending to result in a conviction on proof of See Bankruptcy; Fraudulent Conveyances.
other offense than the one set out in indictment.
-Shea v. United States, 307.
1178 (U.S.C.C.A.) Assignments of
abandoned in the brief will not be considered
on appeal.-May v. United States, 547.
1180 (U.S.C.C.A.) Contentions of accused
disposed of on prior appeal become law of case,
and, having been settled adversely to him, are
no ground for reversal on subsequent appeal.
-Perara v. United States, 61.
See Covenants; Indians, 15; Mortgages;
Tenancy in Common, 45.
DE FACTO OFFICERS.
See Attorney General, 2.
1184 (U.S.C.C.A.) Where fine imposed in See Mechanics' Liens, 203.
prosecution under Act Cong. July 23, 1892,
as amended by Act Jan. 30, 1897, for selling
intoxicating liquor to an Indian, was
correct, will not be reversed, but Circuit Court
of Appeals may modify it, by striking out pro
visions imposing excessive fine.-Salazar V.
United States, 593.
authorized, the judgment, which was otherwise See Aliens, 29–44.
See Banks and Banking, 106, 134; Gar- See Appeal and Error, 184, 990, 1009, 1022;
nishment,
DOING BUSINESS.
See Corporations, 642.
DOUBLE TAXATION.
EMBEZZLEMENT.
See Banks and Banking, 256, 257.
EMPLOYERS AND EMPLOYÉS.
See Master and Servant.
Estoppel; Fraudulent Conveyances; Judg-
ment, 414; Partition; Patents, 280-
324; Quieting Title; Receivers; Specific Per-
formance; Subrogation; Trusts.
I. JURISDICTION, PRINCIPLES, AND
(C) Principles and Maxims of Equity.
66 (U.S.C.C.A.) Under the rule that he
who seeks equity must do equity, specific per-
formance, which is a discretionary remedy, will
be denied, where complainant does not, on his
part, show compliance with the substantial con-
ditions of a contract.-Ellis v. Treat, 330.
66 (U.S.C.C.A.) When a complainant seeks
to set aside a transaction for fraud, it is not
necessary nor his duty to tender any sums
which it may appear that the parties guilty of
the fraud have disbursed, but it is sufficient if he
offers to do equity.-Vallery v. Denver & R. G.
R. Co., 366.
66 (U.S.C.C.A.) Seller which received ad-
vances. from a foreign corporation doing busi-
ness in state cannot, having sought equitable
relief against replevin suit by corporation, de-
feat corporation's cross-bill to recover advances
on ground that corporation had not complied
with laws of state, and so could not sue on con-
tract.-Lasswell Land & Lumber Co. v. Lee
Wilson & Co., 454.
66 (U.S.C.C.A.) Where defendant, in secur-
ing mineral lands, hired counsel, complainants,
who desired to share in the lands acquired, on
theory of trust, held bound, under the maxim
that he who seeks equity must do equity, to
bear their proportionate share of the expendi-
tures.-Broatch v. Boysen, 568.
See Court Rules Cited; Courts, 356.
ERROR, WRIT OF.
See Tenancy in Common; Trusts.
See Appeal and Error, 882; Indians,
15; Judgment, 713; Patents, 148, 162.
III. EQUITABLE ESTOPPEL.
(A) Nature and Essentials in General.
56 (U.S.C.C.A.) Defendant who leased min-
ing claims under an instrument reciting that
complainants were owners of an interest, held
not estopped from denying that they had any
title to claims, complainants not having changed
their position.-Ellis v. Treat, 330.
62(2) (U.S.C.C.A.) The rule that the govern
ment is not estopped by the acts of its agent
or officers applies only where such acts are
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
149 C.C.A.-44
fraudulent, unauthorized, or mistaken.-J.
Homer Fritch, Inc., v. United States, 343.
(E) Pleading, Evidence, Trial, and Re-
view.
117 (U.S.C.C.A.) Where plaintiffs claimed
that under their acceptance of defendant's re-
quest to extend time of option to purchase ves-
sel defendant was estopped to deny extension of
charter party and court ruled plaintiffs need not
establish good faith of negotiations for sale to
others, evidence of negotiations in good faith is
properly excluded.-J. Homer Fritch, Inc., v.
United States, 343.
See Trusts, 374.
EXPERT TESTIMONY.
See Evidence, 554.
7 (U.S.C.C.A.) A stevedoring company held,
on the evidence, not liable to a steamship com-
pany for damages caused by the explosion of
a shipment of explosive corks for toy pistols
while being unloaded from plaintiff's steamer.-
Hamburg-American Line v. Atlantic Transport
Co., 557.
Where plaintiffs contended that defendant was
estopped to deny extension of charter party, ev-
idence that by reason of extension of defend-
ant's option they were deprived of interest on
purchase price, which would have been realized See Brokers.
on sale to others, is properly excluded, there
being no showing that but for such extension
sale would have been consummated.-Id.
See Criminal Law, 308-371; Witnesses.
For evidence as to particular facts or issues or
in particular actions or proceedings, see also
the various specific topics.
FEDERAL COURTS.
See Courts; Stipulations, 14.
See Bankruptcy, 474; Costs, 196.
For review of rulings relating to evidence, see See Appeal and Error, 744.
Appeal and Error.
See Appeal and Error, 1009; Bankruptcy,
~440, 467.
78 (U.S.C.C.A.) Where the best evidence
which might have been produced is not offered,
there is a presumption that such evidence, if
produced, would have been unfavorable.-Back- See Post Office, 21.
us v. Owe Sam Goon, 159.
See Indictment and Information, 128; Li-
censes, 3, 7; Statutes, 47.
(D) Examination of Experts.
554 (U.S.C.C.A.) Answer by medical expert
to hypothetical question held not subject to ob-13(2) (U.S.C.C.A.) Under Act
jection on ground that expert gave opinion not
based on facts stated in question.-Chicago, B.
& Q. R. Co. v. Schrimpf, 390.
XIII. EVIDENCE AT FORMER TRIAL
OR IN OTHER PROCEEDING.
577 (U.S.C.C.A.) Under Rev. Codes Mont. §
7887, evidence of plaintiff's witness given at a
former trial between the same parties is admis-
sible, where at the time of the second trial he
was without the state.-Great Northern Ry. Co.
v. Ennis, 227.
See Appeal and Error, 263-273, 501.
See Counties, 226; Garnishment.
1906, §§ 5, 13, failure of one fishing for salmon
to lift or lower 25 feet of the webbing or net
of the heart of its trap from Saturday evening
to Monday morning held an offense, though no
fish were caught.-Thlinket Packing Co. v. Unit
ed States, 319.
One who fails to raise or lower netting of the
heart of his fish trap held guilty of a violation
of Act June 26, 1906, though not engaged in
fishing.-Id.
One violating Act June 26, 1906, § 5, in fail-
ing to raise or lower the netting of the heart of
fish traps, so as to give salmon and other fish
free passage, cannot escape conviction because
his fishing was done in the manner excepted.
-Id.
Under Act June 26, 1906, § 5, it is not a
sufficient compliance for the owner of fish trap
to raise or lower 25 feet of the web or netting
of the heart of the trap in a V-shape, but the
whole 25 feet must be raised or lowered.-Id.
15 (U.S.C.C.A.) In a prosecution under Act
June 26, 1906, § 5, for failure to comply with
the regulations, an indictment which gave the
location of defendant's trap is sufficient where
such location showed that it was not within
the excepted waters.-Thlinket Packing Co. v.
United States, 319.
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