3. Cromwell v. County of Sac, 94 U. S. 351, distinguished. Bissell v. Spring Valley Township, 225.
4. Hall v. Russell, 101 U. S. 503, distinguished. Brazee v. Schofield, 495. 5. United States v. Curry, 6 How. 106, distinguished. Brown v. McCon- nell, 489.
A Chinese laborer, who resided in the United States on November 17th, 1880, continued to reside there till October 24th, 1883, when he left San Francisco for China, taking with him a certificate of identification issued to him by the collector of that port, in the form required by the 4th section of the act of May 6, 1882, c. 126, 22 Stat. 58, which was stolen from him in China, and remained outstanding and uncancelled. Returning from China to San Francisco by a vessel, he was not allowed by the collector to land, for want of the certificate, and was detained in custody in the port, by the master of the vessel, by direction of the customs authorities. On a writ of habeas corpus, issued by the District Court of the United States, it appeared that he corresponded, in all respects, with the description contained in the registration books of the custom-house of the person to whom the certificate was issued. He was discharged from custody, and the order of discharge was affirmed by the Circuit Court. On appeal to this court, by the United States, Held: (1) He was in custody under or by color of authority of the United States, and the District Court had jurisdiction to issue the writ; (2) the jurisdiction of the court was not affected by the fact that the collector had passed upon the question of allowing the person to land, or by the fact that the treaty provides for diplomatic action in case of hardships; (3) the case of the petitioner was not to be adjudi- cated under the provisions of the act of July 5, 1884, c. 220, 23 Stat. 115, where they differed from the act of 1882; (4) in view of the pro- visions of § 4 of the act of 1882, in regard to a Chinese laborer arriv- ing by sea, as distinguished from those of § 12 of the same act in regard to one arriving by land, the District Court was authorized to receive the evidence it did, in regard to the identity of the petitioner, and, on the facts it found, to discharge him from custody. United States v. Jung Ah Lung, 621.
CHOSE IN ACTION.
See JURISDICTION, B, 4.
CIRCUIT COURTS OF THE UNITED STATES.
See APPEAL;
JURISDICTION, B.
1. Section 3639 of the
lector of customs.
Revised Statutes does not apply to clerks of a col- United States v. Smith, 524.
2. Clerks of a collector of customs are not appointed by the head of a de- partment, and are not officers of the United States in the sense of the Constitution.
See REMOVAL OF CAUSES, 2.
Under the provisions of Spanish law in force in Mexico in 1814-1817, con- fiscation of property as a punishment for the crime of treason could only be effected by regular judicial proceedings; and, it being once declared, the property remained subject to the exclusive jurisdiction of the intendants, both in ordering sale and in taking cognizance of controversies raised concerning it. Sabariego v. Maverick, 261. See PRESUMPTION, 2.
The confiscation act of July 17, 1862, 12 Stat. 589, c. 195, construed in connection with the joint resolution of the same day explanatory of it, 12 Stat. 627, makes no disposition of the confiscated property after the death of the owner, but leaves it to devolve to his heirs according to the lex rei site, and those heirs take qua heirs, and not by donation from the government. Shields v. Schiff, 351.
CONFLICT OF LAW.
See ATTACHMENT, 1, 2.
1. Applying to this case the rules stated in Spies v. Illinois, 123 U. S. 131, that "to give this court jurisdiction under § 709 Rev. Stat. because of the denial by a state court of any title, right, privilege or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was 'specially set up or claimed' at the proper time and in the proper way;" that "to be reviewable here the decision must be against the right so set up or claimed;" and that "as the Supreme Court of the State was reviewing the decision of the trial court, it must appear that the claim was made in that court," it appears that at the trial of the plaintiff in error, no title, right, privilege or immunity under the Constitution, laws or treaties of the United States was specially set up or claimed in the trial court. Brooks v. Missouri, 394. 2. The legislature of Alabama enacted a law entitled “An act to require locomotive engineers in this State to be examined and licensed by a board to be appointed for that purpose," in which it was provided that it should be "unlawful for the engineer of any railroad train in this State to drive or operate or engineer any train of cars or engine upon the main line or roadbed of any railroad in this State which is used
for the transportation of persons, passengers or freight, without first undergoing an examination and obtaining a license as hereinafter pro- vided." The statute then provided for the creation of a board of examiners and prescribed their duties, and authorized them to issue licenses and imposed a license fee, and then enacted "that any engi- neer violating the provisions of this act shall be guilty of a misde- meanor, and, upon conviction, shall be fined not less than fifty nor more than five hundred dollars, and may also be sentenced to hard labor for the county for not more than six months." Plaintiff in error was an engineer in the service of the Mobile and Ohio Railroad Company. His duty was to "drive, operate, and engineer" a locomo- tive engine drawing a passenger, train on that road, regularly plying in one continuous trip between Mobile in Alabama and Corinth in Mis- sissippi, and vice versa, 60 miles of which trip was in Alabama, and 265 in Mississippi. He never "drove, operated, or engineered" a locomotive engine hauling cars from one point to another point exclu- sively within the State of Alabama. After the statute of Alabama took effect, he continued to perform such regular duties without taking out the license required by that act. He was proceeded against for a violation of the statute, and was committed to jail to answer the charge. He petitioned a state court for a writ of habeas corpus upon the ground that he was employed in interstate commerce, and that the statute, so far as it applied to him, was a regulation of commerce among the States, and repugnant to the Constitution of the United States. The writ was refused, and the Supreme Court of the State of Alabama on appeal affirmed that judgment. Held: (1) That the statute of Alabama was not, in its nature, a regulation of commerce, even when applied to such a case as this; (2) That it was an act of legislation within the scope of the powers reserved to the States, to regulate the relative rights and duties of persons within their respec- tive territorial jurisdictions, being intended to operate so as to secure safety of persons and property for the public; (3) That so far as it affected transactions of commerce among the States, it did so only indirectly, incidentally and remotely, and not so as to burden or impede them, and that, in the particulars in which it touched those transactions at all, it was not in conflict with any express enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence; (4) That so far as it was alleged to contravene the Constitution of the United States, the statute was a valid law. Smith v. Alabama, 465.
See TREATY, 2;
WASHINGTON AQUEDUCT.
1. The defendant agreed to make for the plaintiff 400 tons of iron, and to ship it about September 1st, or as soon as he could manufacture it, for
$19.50 per ton. He did not deliver any of it at or about that date, nor as soon as he had manufactured the required amount. The referee found that the defendant "postponed the execution of the contract from time to time," and that, on November 7th, he insisted, as condi- tions of delivering the iron, on certain provisions not contained in the original agreement. The plaintiff did not comply with those conditions, and the iron was not delivered. The referee found that the market value of such iron, on November 7th, was $34 per ton, and did not find what the market value of such iron was at any other time. In a suit by the plaintiff against the defendant to recover damages for a breach of the contract, he was allowed $14.50 per ton. On a writ of error: Held, (1) The postponement of the execution of the contract must be inferred, from the findings, to have been with the assent of the plain- tiff; (2) The rule of damages applied was proper. Roberts v. Benjamin, 64.
2. In 1857 F. and L. entered into an agreement whereby F. was to convey to L. two tracts of land at an assumed value of $26,000, on which was an indebtedness estimated at about $18,000. L. was to assume and pay that indebtedness, and was to convey to F. "five town lots" and "about 1000 acres of land," "being all the lands owned by said L.” at that place, all valued at $10,000; and F. was to pay to L. what might be found due on these assumed values after adjusting the indebted- ness. Each party took possession of the lands acquired by the exchange. F. conveyed to L. and L. assumed and paid the indebtedness. L. re- tained title of the lands to be conveyed to F. until F. should pay the difference. In 1871, the amount being unpaid, L. brought suit against F. and J. to whom F. had conveyed a portion of the land. This suit was compromised by a further agreement in which the tract was described as land "sold by said L. to said F. estimated to contain 1000 acres. On a survey had after that compromise it was found that the tract in question fell much short of 1000 acres. F. filed this bill in 1877, seeking, among other things, to prevent the collection of the difference found due to L. in the original exchange, on the ground that the contract was for a conveyance of 1000 acres, and that the representations of L. in this respect had been false and fraudulent.. Held: (1) That, taken in connection with all the facts proved, L.'s representation could not be regarded as fraudulently made; (2) That, the governing element in the transaction being that it was an exchange of several tracts of land between the parties, the contract was not to be construed by the strict rule which might govern its interpretation if it were an independent purchase to be paid for in money; (3) That, thus construed, it was not an agreement by L. that the tract contained 1000 acres, which bound him to make good the difference between 1000 acres and the quantity found within the boundaries by actual survey. Lawson v. Floyd, 108.
3. The insolvency of the vendee in a contract for the sale and future
delivery of personal property in instalments, payment to be made in notes of the vendee as each instalment is delivered, is sufficient to jus- tify the vendor for refusing to continue the delivery, unless payment be made in cash; but it does not absolve him from offering to deliver the property in performance of the contract if he intends to hold the purchasing party to it: he cannot insist upon damages for non-per- formance by the insolvent without showing performance on his own part, or an offer to perform, with ability to make the offer good. Florence Mining Co. v. Brown, 385.
4. When, in the performance of a written contract, both parties put a prac- tical construction upon it which is at variance with its literal meaning, that construction will prevail, over the language of the contract. Dis- trict of Columbia v. Gallaher, 505.
5. In this case the defendant in error having under a written contract with the agents of the plaintiff in error constructed a sewer which in the course of construction was, by mutual consent, and for reasons assented to by both parties, made to vary in some respects from the plans which formed part of the contract, but without any agreement as to a change in the contract price: Held, for the reasons given by the Court of Claims, that the judgment of that court awarding the contract price for the work is affirmed. Ib.
See DAMAGES; EQUITY, 2, 3.
1. An employé of a business house, who, having a principal place in the establishment, is entrusted by his employers under their direction and on their behalf, in their building, and subject to their control and use, with the custody and possession of printed copies of a copyrighted photograph printed in violation of the provisions of Rev. Stat. § 4965 has no such possession of them as will entitle the proprietor of the copyright to proceed against him for a forfeiture of one dollar for every sheet under that section. Thornton v. Schreiber, 612.
2. The words "found in his possession" in § 4965 of the Revised Statutes do not relate to the finding of the jury that the articles in question were in the defendant's possession, but require that there should be a time before the cause of action accrues, at which they are found in his possession. Ib.
3. Whether the provision in Rev. Stat. § 4965 that one-half of the profit shall go "to the proprietor, and the other half to the use of the United States" does not relate solely to the "case of a painting, statue, or statuary," quære. lb.
A counterclaim set up by the defendant was, on the facts, properly disallowed. Roberts v. Benjamin, 64.
« iepriekšējāTurpināt » |