acres; to make all the surveys, field-notes and maps thereof, and file them
in the office of the surveyor and in the General Land Office of the State
within the time prescribed by law; and T. agreed to pay twenty-five
cents per acre for such rights, and five cents per acre for the surveys,
field-notes and maps and the filing thereof. T. failed to make any of the
payments, and R. failed to file the surveys, field-notes and maps in the
General Land Office within the stipulated time excepting those covering
15,360 acres. Held, (1) That the covenants of the contract were mutual
and dependent and subject to the rule that the party who insists upon
performance from the other side must show a performance on his own
part, while he who wishes to rescind a contract need only show non-
performance or inability to perform by the other party; (2) That as
between applicants and the State, while it seems from the course of
decision in Texas that an applicant could obtain more than a single
tract at one time, yet the policy of the act was that each tract should
be considered as independent of other tracts the purchase of which
also might be sought, and as R. failed as to the larger number of
tracts to file the surveys, field-notes and maps within the time pre-
scribed, he lost the absolute right to demand patents from the State,
on payment, for such tracts, and was therefore unable to perform his
contract with T., for the whole number of acres, according to its terms;
(3) That if upon application the applicant obtained any right which
under the act was susceptible of transfer, it was not vested until the
surveys, etc., were filed; (4) That the act contemplated that the sur-
veys should be made upon the ground, and it not only did not appear
in this case that such surveys had been made, but it would seem that
they must have been made up from office documents and not from
actual survey on the ground. Telfener v. Russ, 170.

2. The requirement of the Mississippi constitution of 1890 that no person
should be a grand or petit juror unless he was a qualified elector and
able to read and write did not prevent the legislature from providing,
as was done in the Code of 1892, that persons selected for jury service
should possess good intelligence, sound judgment and fair character.
Such regulations are always within the power of a legislature to estab-
lish unless forbidden by the constitution. They tend to secure the
proper administration of justice and are in the interest, equally, of
the public and of persons accused of crime. Gibson v. Mississippi,

565.

3. The Mississippi Code of 1892, in force when the indictment was found,
did not affect in any degree the substantial rights of those who had
committed crime prior to its going into effect. It did not make crim-
inal and punishable any act that was innocent when committed, nor
aggravate any crime previously committed, nor inflict a greater pun-
ishment than the law annexed to such crime at the time of its com-
mission, nor alter the legal rules of evidence in order to convict the
offender. Ib.

MASTER AND SERVANT.

See RAILROAD.

MORTGAGE.

1. When a mortgagee is in possession of the mortgaged real estate, claim-
ing under a foreclosure sale, one claiming under the mortgagor can-
not, by setting up that the foreclosure proceedings were invalid,
maintain ejectment to recover the premises, without first offering to
redeem and tendering payment of the mortgage debt. Bryan v.
Kales, 411.

2. A mortgagor of land cannot recover in ejectment against the mortgagee
in possession, after breach of condition, or against persons holding
under the mortgagee. Bryan v. Brasius, 415.

3. An irregular judicial sale, made at the suit of a mortgagee, even though
no bar to the equity of redemption, passes all the mortgagee's rights
to the purchaser. Ib.

NATIONAL BANK.

See CRIMINAL LAW, 28, 29, 30.

NEXT OF KIN.

See FRENCH SPOLIATION CLAIMS.

PARTIES.

The Southern Pacific Company, although a proper, was not a necessary

party to this suit.

merce Commission, 197.

Texas & Pacific Railway Co. v. Interstate Com-

PATENT FOR INVENTION.

The first claim in letters patent No. 425,584, issued April 15, 1890, to Sam-
uel Seabury for an improvement in breech-loading cannon, viz.: for
"The combination, with a breech-loading cannon and a breech-block
for the same, which is withdrawn in a rearward direction, of a breech-
block carrier hinged to the breech, and a breech-block retractor hinged
to the breech separate from said carrier to move independently of said
carrier to draw the breech-block thereinto and push it therefrom, but
capable of moving the said carrier while the breech-block is therein,
substantially as set forth;" must, in view of the state of the art at the
time of the invention, be limited to the precise mechanism employed:
and, being thus limited, it is not infringed by the device patented to
Robert B. Dashiell by letters patent No. 468,331, dated February 9,
1892. Dashiell v. Grosvenor, 425.

PRACTICE.

1. Each party will pay its own costs. United States v. Texas, 1.

2. When the record does not contain the instructions given by the trial
court, it is to be presumed that they covered defendant's requests, so
far as those requests stated the laws correctly. Andrews v. United
States, 420.

PUBLIC LAND.

A person who, without authority, cuts wood from public lands of the
United States, not mineral, or purchases such wood so cut, and leaves
it, when cut or purchased, upon such public lands near a railroad, has
no right of possession of, or title to, or ownership in it, and cannot
maintain an action against the corporation owning such railroad for
its destruction by fire caused by sparks from locomotives of the com-
pany. Northern Pacific Railroad Company v. Lewis, 366.

See LOCAL LAW, 1;

TAX AND TAXATION.

RAILROAD.

1. H. was foreman of an extra gang of laborers for plaintiff in error on
its road, and as such had charge of and superintended the gang in
putting in ties and assisting in keeping in repair three sections of
the road. He had power to hire and discharge the hands, (13 in
number,) in the gang, and had exclusive charge of their direction
and management in all matters connected with their employment.
The defendant in error was one of that gang, hired by H., and sub-
ject, as a laborer, while on duty with the gang, to his authority.
While on such duty the defendant in error suffered serious injury
through the alleged negligence of H., acting as foreman in the
course of his employment, and sued the railroad company to recover
damages for those injuries. Held, that H. was not such a superin-
tendent of a separate department, nor in control of such a distinct
branch of the work of the company, as would be necessary to render
it liable to a co-employé for his neglect; but that he was a fellow-
workman, in fact as well as in law, whose negligence entailed no
such liability on the company as was sought to be enforced in this
action. Northern Pacific Railroad Company v. Peterson, 346.

2. The duties of a railroad company, as master, towards its employés, as
servants, defined; and it is held that if the master, instead of per-
sonally performing these obligations, engages another to do them for
him, he is liable for the neglect of that other, which, in such case,
is not the neglect of a fellow-servant, but of the master.

Ib.

3. The previous cases in this court on this subject examined, and found
to determine the following points, as to the liability of a railroad
company for injuries to an employé alleged to have been caused by

the negligence of another employé, while the injured person was in
the performance of his ordinary duties: (1) That the mere superi-
ority of the negligent employé in position and in the power to give
orders to subordinates is not a ground for such liability; (2) That
in order to form an exception to the general law of non liability, the
person whose neglect caused the injury must be one who was clothed
with the control and management of a distinct department, and not
of a mere separate piece of work in one of the branches of service in
a department; (3) That when the business of the master is of such
great and diversified extent that it naturally and necessarily separates
itself into departments of service, the persons placed by the master in
charge of these separate branches and departments, and given control
therein, may be considered, with reference to employés under them,
vice-principals and representatives of the master as fully as if the
entire business of the master were placed by him under one super-
intendent. Ib.

4. There is no proof of a separate contract of hiring, by which the rail-
road company assumed obligations towards the defendant in error in
excess of those ordinarily assumed by a company towards those em-
ployed by it as laborers. Ib.

5. The general principles of the law of master and servant, as set forth
in the opinion in Northern Pacific Railroad v. Peterson, 162 U. S. 340,
are applicable to the facts in this case, and govern it. Northern Pacific
Railroad Company v. Charless, 359.

The plaintiff below was a day laborer, in the employ of the Northern
Pacific Railroad. With the rest of his gang he started on a hand car
under a foreman to go over a part of a section to inspect the road.
While running rapidly round a curve they came in contact with a
freight train, and he was seriously injured. The brake of the hand
car was defective. The freight train gave no signals of its approach.
He sued the company to recover damages for his injuries. Held,
(1) That the railroad company was not liable for negligence of its
servants on the freight train to give signals of its approach, as such
negligence, if it existed, was the negligence of a co-servant of the
plaintiff; (2) That any supposed negligence of the foreman in run-
ning the hand car at too high a rate of speed, was negligence of a co-
employé of the company, and not of their common employer; (3) That
if it should be assumed that the injury might have been avoided if the
brake had not been defective, the jury should have been properly in-
structed on that point. Ib.

See TAX AND TAXATION.

RECEIVER.

A coal and railway company contracted with C. to construct a building for
it in the Indian Territory. After the work was begun a receiver of
the property of the company was appointed under foreclosure proceed-

ings. This building was not covered by the mortgage. C. was settled
with for work up to that time, and all further work was stopped, ex-
cept such as might be necessary for the protection of the building,
which was to be done under order of court. An order was issued for
roofing, which C. did, and then continued work on the building with-
out further authority from the court. The receiver, on learning this,
notified him to stop and make out his bill to date of notice; said that
he would furnish designs for further work to be done; and asked C.
to name a gross sum for doing it. C. stopped as directed, the designs
were furnished, and C. named the desired gross sum. No further
order of court was named, nor was any contract signed by the re-
ceiver; but the architect employed by the receiver drew up a contract
and specification, and the work was done by C. in accordance there-
with with the knowledge and approval of the receiver. The receiver
having declined to sign the contract, or to make payments thereunder,
C. filed a petition in the foreclosure proceedings for payment of the
amount due him. Thereupon a reference was made to a master, who
reported in favor of C. The court adjudged the claim to be a valid
one, entitled to preference, and the receiver was ordered to pay the
amount reported due; which decree was, on appeal, affirmed by the
Circuit Court of Appeals. Held, that there was no error in the court's
ordering C.'s bill to be paid as a preferred claim, as the work had been
commenced before the receivership and was done in good faith for the
benefit of the company and the receivers, and as the building must
either have been finished or the work already done become a total loss
to the company; that it appeared to have been constructed for the
accommodation of the officers of the road, and in other respects in
furtherance of the interests of the road, and was an asset in the hands
of the receivers, which might be sold, and the money realized there-
from applied to the payment of the claim; and that the fact that it
was not covered by the mortgage rendered it the more equitable that
the proceeds of the sale should be applied to the payment of the cost
of its construction. Girard Insurance & Trust Co. v. Cooper, 529.

REMOVAL OF CAUSES.

1. This case comes within the established rule that on an application of
removal from a state to a Federal court, the Federal question or the
Federal character of the defendant company must appear from the
complaint in the action, in order to justify a removal; and such
Federal question or character does not appear in this case. Oregon
Short Line & Utah Northern Railway Co. v. Skottowe, 490.

2. Section 641 of the Revised Statutes, providing for the removal of civil
suits and of criminal prosecutions from the state courts into the Circuit
Courts of the United States, does not embrace a case in which a right
is denied by judicial action during a trial, or in the sentence, or in the

VOL. CLXII-47