§ 2. United States courts. § 3. In a proceeding in a federal court involving a question of international law, a suggestion filed by the district attorney, acting by authority of the executive department, is appropriate for the purpose of disclosing to the court facts not appearing in the record, but the legal effect of such facts is for determination exclusively by the court. -Motherwell v. United States, 107 Fed. 437.........48 C. C. A. 97 Jurisdiction is not acquired by a federal court over a corporation de fendant shown by the bill to have been organized under the laws of another state, and to have its place of business in such state, by service of process in a third state upon an officer of the corporation there found. -Ellsworth Trust Co. v. Parramore, 108 Fed. 906...48 C. C. A. 132 The fact that an action is brought, pursuant to the requirements of Rev. St. § 2326, to determine the right to the possession of a mining claim, does not confer jurisdiction of such action on a federal court. .....48 C. C. A. 252 -Larned v. Jenkins, 109 Fed. 100..... An action will not be dismissed by a circuit court of appeals on the ground that the pleadings do not show the requisite diversity of citizenship to give the circuit court jurisdiction, on motion of the plaintiff, who brought the action in that court, where the requisite jurisdictional facts appear in the evidence embodied in his bill of exceptions. -Jumeau v. Brooks, 109 Fed. 353.... ......48 C. C. A. 397 Attachment being a statutory remedy, the question of the measure of damages recoverable for breach of an attachment bond is one governed by the law of the state as expressed in its constitution and statutes, or declared by its highest court, and the law as so determined will be followed by the federal courts. -L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co., 109 Fed. 393; Fidelity & Deposit Co. v. L. Bucki & Son Lumber Co.. Id... 48 C. C. A. 436 A city in Wisconsin granted a waterworks franchise to citizens of another state, and contracted with the grantees for the rental of fire hydrants. The grantees at once assigned their rights under the ordinance and contract to a Wisconsin corporation, which constructed waterworks and furnished the hydrants required by the contract. The company also made a trust deed to a citizen of another state to secure bonds by which it pledged the rentals to become due from the city for the payment of interest on the bonds. Held, that the fact that the contract was originally made between the city and a citizen of another state did not give a federal court jurisdiction of a suit by the trustee in the mortgage against the city to collect rentals due the water company arising out of such contract, the cause of action being one which never existed in favor of the original grantees, but which accrued in the first instance in favor of the company, in whose right alone the action was maintainable. -City of Eau Claire v. Payson, 109 Fed. 676........48 C. C. A. 608 Act June 6, 1900, amending section 7 of Act March 3, 1891, creating the circuit courts of appeals, relating to appeals from interlocutory orders and decrees, repealed, by implication, the prior amendment of February 18, 1895, and, as the section stands since the later amendment, an appeal does not lie from an interlocutory decree denying an injunction. -Western Electric Co. v. Williams-Abbott Electric Co., 108 Fed. 952 .. ......48 C. C. A. 159 Outside of the power of revision given in bankruptcy proceedings, a circuit court of appeals has no power to set aside or modify an order made by a district court, except upon appeal or writ of error therefrom. It cannot, on a motion, set aside an order of a district judge admitting defendants to bail pending proceedings for review. -United States v. Moy Yee Tai, 109 Fed. 1........48 C. C. A. 203 The provision of rule 35 of the circuit court of appeals of the Second circuit (31 C. C. A. Ixvi., 90 Fed. Ixvi.), that an appeal or writ of error from a circuit or district court to such court "may be allowed * by any district judge within his district," does not authorize a district judge, while sitting in his own district, to allow an appeal from a court of another district. -United States v. Moy Yee Tai, 109 Fed. 1....................48 C. C. A. 203 A circuit court of appeals has no power to entertain a motion to revoke a mandate issued, and to issue a new one directing the entry of a different decree below, where such motion is not made until after the expiration of the term at which the cause was determined and decree entered, and where such decree, and the mandate issued thereon, conform in all respects to the opinion of the court, notwithstanding equitable grounds are shown for the granting of different relief to the successful appellant, had timely application therefor been made. -Reynolds v. Manhattan Trust Co., 109 Fed. 97....48 C. C. A. 249 Where a circuit court dismisses a case on the ground that it has no jurisdiction, leaving pending motions undetermined, the only issue reviewable is that of jurisdiction, which must be taken to the supreme court, and an appeal will not lie to the circuit court of appeals. -Excelsior Wooden-Pipe Co. v. Pacific Bridge Co., 109 Fed. 497.... 48 C. C. A. 349 Where a circuit court of appeals on a writ of error has affirmed the judgment of a circuit court, condemned the plaintiff in error and the sureties on the writ of error bond to pay the costs, and issued its mandate in the usual form, commanding "that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding," and the circuit court, in substantial compliance with such mandate. has awarded process against the defendant and also against the sureties in the bond, its order is, in effect, the judgment of the appellate court, and cannot be taken to that court for review. In such case the circuit court has no discretion to do otherwise than to obey the command of the mandate, and cannot entertain a defense there sought to be set up by the sureties, based on the alleged invalidity of the original judgment or a claim that the bond never became operative as a supersedeas, and its refusal to do so gives the sureties no right to the allowance of a second writ of error. -White v. Bruce, 109 Fed. 355.... ......48 C. C. A. 400 The fact that the circuit court of appeals cannot entertain an appeal or writ of error until the same has been duly allowed shows conclusively that the right to an appeal or writ of error is not an unqualified one, and conclusively implies the power and duty to refuse applications therefor in some cases. -White v. Bruce, 109 Fed. 355..... .48 C. C. A. 400 Under section 7, Act March 3, 1891, creating the circuit courts of appeals, as amended by Act June 6, 1900 (31 Stat. 660), which gives a right of appeal "where upon a hearing in equity * * an injunction shall be granted or continued or a receiver appointed by an interlocutory order or decree," where a receiver was appointed ex parte, and without notice or a hearing, an appeal lies from a subsequent order confirming such appointment, made on the hearing of an application by defendant for the receiver's discharge; such order being the first adjudication of the question of the propriety of such appointment made "upon a hearing." and, by a fair construction of the act, the one from which it is intended to give the right of appeal. -Pacific Northwest Packing Co. v. Allen, 109 Fed. 515... 48 C. C. A. 521 On an appeal from an interlocutory order granting a preliminary injunction restraining defendants from removing from a building certain property claimed by complainant to be a part of the realty, where § 4. the allegations of the bill and the proofs upon the hearing were sufficient to show prima facie that complainant was the equitable owner of the realty, the court will not enter upon the question whether or not the property involved constitutes fixtures, which is a question to be determined when the suit is tried on the merits; the rule being that such an order will be affirmed unless an abuse of legal discretion appears. -Murray v. Bender, 109 Fed. 585.. Circuit courts. .48 C. C. A. 555 Under Act March 3, 1897 (29 Stat. 695), defining the jurisdiction of the circuit courts in cases for infringement of patents, such a suit can be maintained only in the district of which the defendant is an inhabitant, or in a district in which the defendant has committed acts of infringement, and has a regular and established place of business. -Shaw v. American Tobacco Co., 108 Fed. 842.......48 C. C. A. 68 An action on bond for government work, which 28 Stat. 278, c. 280, requires a contractor to give, conditioned that the contractor shall promptly pay laborers and material men, and on which such statute authorized such persons not paid to sue in the name of the United States for their benefit, is within the provision of Judiciary Act 1875 (18 Stat. 470), brought into Act 1887, corrected by Act 1888 (25 Stat. 433), giving circuit courts jurisdiction of civil suits "arising under the laws of the United States," where the matter in dispute exceeds $2,000. .48 C. C. A. 677 -Mullin v. United States, 109 Fed. 817... § 5. Concurrent and conflicting jurisdiction, and comity. A deserter from the naval service of a foreign government, arrested and detained by the authorities of the United States on application of officers of that government, under the supposed requirements of a treaty, is not thereby placed in the constructive custody of such officers, so that his release in habeas corpus proceedings is in any manner an invasion of their right to immunity from the jurisdiction or process of our courts; and, when his arrest and detention by the United States authorities were not warranted either by the treaty or by the rule of comity, it is the duty of the courts to discharge him. -Motherwell v. United States, 107 Fed. 437.........48 C. C. A. 97 The trustee in a railroad mortgage is not entitled to maintain a suit in a federal court to enjoin a contractor from proceeding under authority of a county to construct a drain across the right of way of the railroad, where regular proceedings for condemning right of way for the drain. to which the railroad company is a party, are pending in the state courts, and where there is no reasonable ground for apprehending injury to complainant's security. —Farmers' Loan & Trust Co. v. McAndrews, 109 Fed. 109. 48 C. C. A. 261 CREDIBILITY. Of witness, see "Witnesses," § 1. CREDITORS. See "Bankruptcy"; "Fraudulent Conveyances." Right to defeat liability of debtor within statute of frauds, see "Frauds, Statute of," § 2. CRIMINAL LAW. See "Conspiracy." § 1. Contempt, see "Contempt." Offenses against postal laws, see "Post Office," § 1. § 1. Trial. An instruction on a trial for violating the banking law that, "in his opinion, it was the duty of the jury to convict the defendant," was ground for new trial, as calculated to mislead the jury, who would, perhaps, construe the language as a direction on the part of the court. -Breese v. United States, 108 Fed. 804..... ..48 C. C. A. 36 § 2. Appeal and error, and certiorari. Counsel for the government in a prosecution for conspiracy in his argument to the jury analyzed and criticised the testimony of one of the defendants, and then stated that neither of the other defendants had taken the stand. At this point he was interrupted by an objection, and the court immediately held that he had no right to comment on such fact; and both the court and the district attorney expressed themselves to the effect that such comment was improper, and the district attorney disclaimed any intention of making it. The court also, at request of defendant's attorneys, fully stated the law in that regard in the charge to the jury. Held, that the mere reference to such fact, at once disclaimed by counsel, and in view of the further statements of the court, did not constitute such prejudicial error as would warrant a reversal, especially as the fact that one defendant had testified had presumably called the attention of the jury to the omission of the others to take the stand. -Wright v. United States, 108 Fed. 805... CUSTOMS AND USAGES. ..48 C. C. A. 37 Evidence of custom as to liability of charterer of vessel, see "Shipping," § 1. CUSTOMS DUTIES. § 1. Entry and appraisal of goods, bonds, and warehouses. Customs Duties Act 1897, par. 302, provides for cotton yarn, not dyed, or advanced beyond the condition of singles, a duty of three cents per pound on all numbers up to 15, one-fifth of a cent per number per pound on all numbers between 15 and 30, and one-fourth of a cent per number per pound on higher numbers; for yarn dyed or advanced beyond the condition of singles, six cents per pound on a numbers up to 20, one-fourth of a cent per number per pound on numbers between 20 and 80, and three-tenths of a cent per number per pound on higher numbers. Treasury Department Rule Sept. 8, 1897, for ascertaining the number of cotton yarns, says multiply the number of yards by the number of strands, multiply the product by 8%, and divide the resulting product by the weight of the yarn in grains. Held, in case of cotton yarns dyed, glazed, and finished, but not advanced beyond singles, that, though dyeing and glazing increases the weight and decreases the number of the yarn, and the weight used by the formula is that of, and by it the number is ascertained according to, the original conditions, when the number is so ascertained, the dutiable weight is ascertained by actual weighing. -Downing v. United States, 109 Fed. 885.... ...48 C. C. A. 703 See "Collision," § 5. DAMAGES. Action on attachment bond, see "Attachment," § 1. Infringement of patent, see "Patents," § 5. Suits in admiralty, see "Admiralty," § 1. Transmission of forged message by telegraph operator, see "Telegraphs and Telephones," § 1. 48 C.C.A.-51 DEBTOR AND CREDITOR. See "Bankruptcy"; "Fraudulent Conveyances." DECREE. In equity, see "Equity," § 3. DEEDS. As evidence of color of title, see "Adverse Possession," § 1. 81. Requisites and validity. The parties were partners in certain mining enterprises, and jointly owned an interest in a claim, in which complainant also owned a separate interest. Defendants, by tunneling from an adjoining mine, managed by them, discovered an extensive and valuable vein of ore in such claim, and, concealing such fact from complainant, procured an option on his interest, and execution and delivery in escrow of a deed therefor, and afterwards, by fraud, and without payment therefor, obtained possession of the deed. Held, that such deed should be set aside as fraudulent and void, both because of such concealment and because never delivered. -Hanley v. Sweeny, 109 Fed. 712.... .48 C. C. A. 612 See "Replevin." DETINUE. DILIGENCE. Of party asking relief, see "Specific Performance," § 1. DISCHARGE. From indebtedness, see "Bankruptcy," § 4. In habeas corpus proceedings, see "Habeas Corpus," § 1. DISCOUNTS. By bank, see "Banks and Banking." DISCOVERY. 1. Under statutory provisions. Rev. St. § 724, which authorizes courts of the United States, in actions at law, on motion and due notice, to require parties to produce books or writings which contain evidence pertinent to the issue "in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery," goes no further than to apply to actions at law the remedy which in equity is afforded by a bill of discovery; and, before a defendant can be held in default for a failure to produce such evidence as provided by the statute, the court must have determined that the evidence so sought is pertinent to |