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quent, and an entry and patent of part of the | land subsequent to such acts vested no title in the natentee.-Wheeler v. City of Chicage (C. C.) 526.
An act granting public lands in aid of the
construction of a railroad within certain limits on both sides of the road, and which provides that the lands adjacent to the road shall be surveyed after the route is fixed, and shall not be liable to sale, entry, or pre-emption, operates of itself to withdraw such lands from sale, entry, pre-emption, or other disposition. - Southern Pac. R. Co. v. Groeck (C. Č.) 609.
the act of March 3, 1857, did not have the effect of confirming the original selection.--Michigan Land & Lumber Co. v. Pack (C. C. A.) 170; Same v. Butman, Id. Spanish grants.
A claim by a grantee of an alleged Spanish grant, dated in 1788, including the Hot Springs in the city of Hot Springs, Ark., will be presumed to be abandoned in an action in 1894 to recover such land, though the heirs of the grantee sued under Act May 26, 1824, for confirmation of the claim.-Muse v. Arlington Hotel Co. (C. C.) 637.
Where lands within the place limits of a grant to a railway company have been reserved from province of Louisiana of February 18, 1770, no Under the regulations of the governor of the sale or entry by the land department to satisfy title to land standing in the name of the king indemnity claims under a prior grant, such rail-was conveyed by a paper purporting to be a way company acquires no right to the lands by Spanish grant made by the governor of such its grant.-Northern Pac. R. Co. v. Musser Saun- province, in the absence of any actual survey of try Land, Logging & Manuf'g Co. (C. C. A.) the grant, and the filing of a copy thereof in 993. the office of the scrivener of the government, and a putting of the grantee in pedal possession according to the form prevailing in Spain and such province.-Muse v. Arlington Hotel Co. (C. C.) 637.
It is within the power and is the duty of the land department to reserve from sale or entry such lands as may be required to satisfy a grant to a railway company, though before such reservation a second grant to another railway company is made, the limits of which overlap the lands reserved.-Northern Pac. R. Co. v. Musser Sauntry Land, Logging & Manuf'g Co. (C. C. A.) 993.
Lands claimed to be within Mexican grants are not public lands, within the operation of a railroad grant, if the question of the location of the boundaries of the private grant is undetermined. Southern Pac. R. Co. v. Brown (C. C.) 333; Same v. Bray, Id.
The secretary of the interior approved a list of lands to be allotted to the state of Michigan under the swamp lands act, such list being based on erroneous surveys, which were known to the state to be erroneous, and to be in process of correction by the general government. Before a patent was issued, corrected lists were prepared, omitting some lands included in the first list, and patents were issued for the lands included in the corrected lists. Held, that the title of the state did not attach to the lands in the first list upon its approval, before the issue of a patent, so as to prevent subsequent correction of the errors, and to remove from the operation of the grant lands not properly within it.-Michigan Land & Lumber Co. v. Rust (C. C. A.) 155.
The act of March 3, 1857, was not intended to apply to and confirm old lists of lands passing under the swamp lands act, which were founded on erroneous surveys, and have been superseded by new lists; nor to override the power of the secretary of the interior to correct mistakes. Michigan Land & Lumber Co. v. Rust (C. C. A.) 155.
Lists of lands for allotment to the state of Michigan, under the swamp lands act, were selected by the surveyor general, and reported by him to the commissioner of the land office. The lists were afterwards superseded by lists made in accordance with corrected surveys. Held, that
The legislature of South Carolina has power to authorize municipal corporations to issue railroad aid bonds.-Town of Darlington v. Atlantic Trust Co. (C. C. A.) 849. Trust Co. (C. C. A.) 849.
The act of Minnesota of March 1, 1877, permitting any railroad corporation to finish certain incomplete railway lines, and acquire the land grants appertaining thereto, was not intended to forfeit the lands within the grant, previously conveyed by the government of the state, nor to declare its deeds void; and the corporation completing the road acquired no rights in such lands.-St. Paul, M. & M. Ry. Co. v. St. Paul & N. P. R. Co. (C. C. A.) 2; St. Paul & N. P. R. Co. v. St. Paul, M. & M. Ry. Co., Id.
Whether the lien given by section 3192 of McClain's Iowa Code applies to rolling stock of a railway in favor of the lessor of depot grounds, quaere.-Manhattan Trust Co. v. Sioux City & Ñ. Ry. Co. (C. C.) 72.
The mere filing of a stockholders' bill, asking the appointment of a railroad receiver to secure a better management until the company's debts can be discharged, and service of process there under, does not of itself draw the company's property into the possession of the court so as to prevent the company from surrendering to the seller, in partial extinguishment of the purchase price, part of a lot of steel rails which have not yet been laid.-Illinois Steel Co. v. Putnam (C. C. A.) 515.
Where receivers have not returned property, held by them, for taxation, the claim for taxes is not barred by an order limiting the time for presenting claims; but, if the taxing officers have made no application for payment, they cannot enforce a penalty.-Walters v. Western & A. R. Co. (C. C.) 1002.
The state of Georgia, upon leasing a railroad to certain persons who were formed into a corporation, granted it exemption from taxation, except of one-half of 1 per cent. on its net income. Held, that the exemption expired with the lease, and property of the corporation afterwards held by receivers was liable to taxation.Walters v. Western & A. R. Co. (C. C.) 1002.
An Ohio railway corporation can mortgage after-acquired property, acquired either by itself or by any successor in title exercising the same franchises or similar franchises granted by the same sovereign.-Compton v. Jesup (C. C. A.) 263.
The lien of a mortgage after a railroad company has gone into the hands of a receiver is superior to the claim of the sureties on an appeal by the railroad from a judgment against it, obtained before the receivership. Farmers' Loan & Trust Co. v. Northern Pac. R. Co. (C. C.) 36.
ceed if he could discover such other train by the use of ordinary care.-Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 148.
There can be no abandonment of a legal title to land by mere failure to assert it, in the absence of adverse possession.-East Tennessee Iron & Coal Co. v. Wiggin (C. C. A.) 446.
Of corporation, see "Corporations."
Receivers of a railroad are not responsible for injuries caused primarily by an inevitable accident, though the consequences may have been aggravated by the inefficiency of employés of the receivers, in whose selection due care was not used.-Central Trust Co. of New York v. East Tennessee, V. & G. R. Co. (C. C.) 635.
Property in the hands of a receiver cannot be reached by proceedings for the collection of taxes without the consent of the court.-Oakes v. Myers (C. C.) 807.
subject to garnishment except by consent of the Independently of statute, a receiver is not court appointing him.-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co. (C. C.) 685.
A railroad mortgage, covering after-acquired property, is prior to any lien existing in the lessor of depot grounds, under section 3192 of Of contracts, see "Equity." McClain's Iowa Code, upon rolling stock, delivered to the railroad company before its use on the depot grounds.-Manhattan Trust Co. V. Sioux City & N. Ry. Co. (C. C.) 72.
Regulation of Commerce.
See "Constitutional Law."
REMOVAL OF CAUSES.
Complainants, who had agreed to furnish part of the cash to complete the purchase of a railroad under foreclosure, made a contract with S., their agent, for the purchase, by which he agreed to have the company which was to be Devise to, see "Charities." organized to operate the road execute certain notes, and secure them by a mortgage, and to have part of such notes deposited as security for the repayment of the cash advanced by complainants, which they desired to borrow. Such notes and mortgage, which were never used, were afterwards canceled, and a new mortgage issued to secure bonds which were used in completing the road, and were bought by a third party in good faith. In a suit to which all persons interested were parties, the rights of all such persons, including complainants, were adjudicated, and stock of the railroad company was allotted to complainants in return for their advances. Held, that complainants acquired no lien superior to that of the mortgage securing the bonds.-Peninsular Iron Co. v. Eells (C. C. A.) 24.
Liability for negligence.
It is not error to refuse to instruct a jury that the engineer of a train, which has collided with another, had a right to proceed towards the crossing where the collision occurred if the headlight of such other train was not lighted, when the engineer in question was bound not to pro
Where a motion is made by a defendant in a state court after he has filed a petition for removal to the federal court, and is afterwards brought on in the federal court, the irregularity is waived by the plaintiff by seeking an adjournment without raising the objection.-Kinne v. Lant (C. C.) 436.
Where, pending an action by a corporation, a receiver is appointed, under foreclosure of a mortgage made by it, coupons of bonds secured by the mortgage maturing after the receivership cannot be allowed as set-off, if the receiver is not entitled to be made a party plaintiff in the action.-Wheeling Bridge & Terminal Ry. Co. v. Cochran (C. C. A.) 141.
In West Virginia all matters of set-off, though accruing pendente lite, may be allowed.-Wheeling Bridge & Terminal Ry. Co. v. Cochran (C. C. A.) 141.
It seems that when the jurisdictional facts authorizing removal of a cause to a federal
court exist, but are not properly stated in the petition for removal, such petition may be amended to show the facts properly.-Robertson v. Scottish Union & National Ins. Co. (C. C.) 173.
The allegation that a defendant is "a company duly chartered and incorporated under the laws of Great Britain" is a sufficient statement of the citizenship of such corporation for the purposes of removal to a federal court.-Robertson v. Scottish Union & National Ins. Co. (C. C.) 173.
Where the owner of a scow, which drifted out to sea because left by a tug without sufficient anchoring, paid an adjudication of salvage against her, held, that he was entitled to recover over against the tug; but, it appearing that the owner had a man on board whose duty it alsof was to see the scow well anchored, held, that but half the amount paid could be recovered.O'Connell v. The C. R. Stone (D. C.) 934.
A steamer having been sunk under suspicious circumstances, the insurers employed libelant to raise her, and not to permit owners to examine her until after their own examination. Held, that the direct pecuniary interest of the insurers, and their express employment of libelant, made them liable for the agreed amount of salvage, under the nineteenth supreme court admiralty rule.-Chapman Derrick & Wrecking Co. v. Providence-Washington Ins. Co. (D. C.) 932.
Where an action commenced in a state court by attachment of property of the defendant exceeding in value $2,000, upon a claim of less than $2,000, is removed into the circuit court by a receiver of the defendant's property, who has been made a party because he claims the exclusive possession of the attached property, the amount in controversy, so far as it relates to the receiver's right to remove the cause, is the value of the property attached.-Hoover & Allen Co. v. Columbia Straw-Paper Co. (C. C.) 945. See "Criminal Law."
On appeal, see "Appeal."
Risks of Employment.
See "Master and Servant."
See, also, "Vendor and Purchaser."
A contract to sell and deliver 10,000 barrels of oil, at a stipulated price, in such quantities per week as the buyer may desire, to be paid for as delivered, but which contains no agreement on the part of the buyer to purchase and receive any particular quantity of oil, is not binding, for want of mutuality.-American Cotton Oil Co. v. Kirk (C. C. A.) 791.
Where a tug, upon request, for 18 hours stood by certain barges, which were in a situation of apprehended danger from ice in a sudden gale, and rendered various services to them, held, that this was a salvage service, presumably ben eficial, without absolute proof that they would have been worse off without such help; and that $250 upon a valuation of $3,000 should be awarded.-The Thomas Quigley (D. C.) 936; The Jeremiah F. Barnes, Id.; Tice v. The Hud son, Id.
Two thousand one hundred dollars allowed on a valuation of $55,000, for the services of a vessel with her steam pump and hose, aided by a small tug and a shore hose and pump company, in putting out fire in a cargo of hemp, nearly all being saved.-The Merjulio (D. C.) 935.
See "Master and Servant."
Service of Process.
SHERIFFS AND CONSTABLES.
Where a sheriff has levied on a box and contents under attachment, it is for him to determine whether to open the box, defendant refusing to unlock it.-Broderick v. Brown (C. C.) 346.
See, also, "Admiralty"; "Collision"; "Marine Insurance"; "Maritime Liens"; "Salvage"; "Wharves."
The act of February 13, 1893, known as the "Harter Act," does not interfere with the liberty of contract between the owner and charterer in regard to a proper fitting of the vessel for the voyage, or with any contract the parties may make as respects the responsibility for the sufficiency of special fittings.-Hine v. New York & Bermudez Co. (D. C.) 920.
A charter of a ship to bring asphalt to New York, the ship to be "fitted with shifting boards and bulkheads, suitable for carrying asphalt cargo safely, to be done by owner's agent, but at charterer's expense," imposes upon the owner the duty of providing suitable bulkheads and fittings, and where the same are insufficient, and break under the weight of the cargo, causing delay and expense for unloading, refitting, and reloading, he cannot recover charter hire. or a general average expense, for such delay and costs. The act of February 13, 1893, known as the "Harter Act," is not applicable to such a contract.-Hine v. New York & Bermudez Co. (D. C.) 920.
A charter of a British ship to San Francisco | exporters was signed in Liverpool by the English correspondents of the San Francisco brokers through whom the contract was made, without previous authority from the charterers, and after the alteration of a material provision which they had insisted upon. The charterers received no notice of the change until a copy of the charter was transmitted to them through the San Francisco brokers. They immediately notified the latter that they should insist upon the condition, and were assured by them that there would be no trouble about it. The change was not made, however; and, upon receiving notice from the brokers of the arrival of the ship, they refused to receive her. Held, that there was no ratification of the charter or waiver of the condition in question.-Starr & Co. V. Galgate Ship Co. (C. C. A.) 234.
The charter of a British ship by San Francisco exporters was negotiated in San Francisco through brokers, whose English correspondents signed the charter party in Liverpool, as agents of the charterers, without previous authority, and after alteration of a material provision insisted upon by the charterers. The San Francisco brokers notified the charterers of the execution of the charter party, without informing them of the alteration; and, in response to their request, the charterers answered, confirming the charter party. Held, that the letter of confirmation, having been written in ignorance of a material alteration, was inoperative, and that the transaction could not be regarded as a contract effected by bought and sold notes.-Starr & Co. v. Galgate Ship Co. (C. C. A.) 234.
A vessel employed and used with malicious intent in arresting, without process, another vessel, is liable for the damages and expenses thereby occasioned.-Weyant v. The Petersburg (D. C.) 387.
Carriage of goods.
A ship is liable for damages to a cargo of sugar by water leaking through the deck, which was in poor condition.-Howell v. The Mary L. Peters (D. C.) 919.
Where cases of oil were carried at shipper's risk to Rio, and there, according to local regulations, delivered in open lighters to the customs authorities, and the consignees, though duly notified, delayed for nine weeks to pay the duties and take the oil ashore, held, that the ship was only liable for loss by breakage and leakage while on board, and for a reasonable time, after discharge into the lighters, in which to pay duties, and that for an alleged further shortage she was not responsible.-Guimaraes v. Proceeds of The Seguranca (D. C.) 1014.
Alleged error of the master in filling, at sea, a tank having a latent defect, is not an error, "in the management of the vessel," within the meaning of the third section of the act of February 13, 1893 (27 Stat. 445).-Wuppermann v. The Carib Prince (C. C. A.) 254; Middleton v. Same, Id.; Cardenas v. Same, Id.; Gillespie v. Same, Id.
relieve themselves by contract from the rigidity of the implied warranty of seaworthiness, provided due diligence is used at the commencement of the voyage to make the ship seaworthy. Wuppermann v. The Carib Prince (C. C. A.) 254; Middleton v. Same, Id.; Cardenas v. Same, Id.; Gillespie v. Same, Id.
Exceptions in a bill of lading of "latent defects in hull" include a latent defect existing at the commencement of the voyage, and limit the implied warranty of seaworthiness.-Wuppermann v. The Carib Prince (C. C. A.) 254; Mid-' dleton v. Same, Id.; Cardenas v. Same, Id.; Gillespie v. Same, Id.
Section 3 of the act of February 13, 1893, refaults or errors in navigation or management lieving vessels and owners from liability for if due diligence has been used to make the vessel seaworthy, and have her properly manned, equipped, and supplied, applies to foreign vessels carrying freight to or from American ports, as well as to American vessels.-The Silvia (C. C. A.) 230: Franklin Sugar-Refining Co. v. Red Cross Line, Id.
Having ports closed at the commencement of a voyage only by heavy glass covers, leaving open additional iron covers, does not constitute unseaworthiness; and, if failure to close the iron covers constitutes negligence, it is negligence in the management of the vessel, from freed by section 3 of the act of February 13, liability for which the owner and vessel are 1893.-The Silvia (C. C. A.) 230; Franklin Sugar-Refining Co. v. Red Cross Line, Id.
The between decks, when perfectly tight and strong, is not an improper place for the stowage of molasses.-Bregaro v. The Centurion (C. C. A.) 382; American Sugar Refining Co. v. Same, Id.
Where sugar was stored in the hold with hogsheads of molasses in the between decks above it, and some of the molasses casks were broken by a heavy sea which heaved the ship to an angle of 45 degrees, and the molasses ran down the scupper pipes and damaged the sugar, neid, stowed, and that the damage was caused by on the evidence, that the cargo was properly peril of the sea, from the consequences of which the ship was exempt under the bill of lading.Bregaro v. The Centurion (C. C. A.) 382; American Sugar Refining Co. v. Same, Id.
A steamer making daily trips touched at a landing to deliver freight, but, no one being present to receive the same or pay the charges, it was retained on board, the master sending word to the consignee to have some one ready to take the goods on the following day. On that day no one was on hand, and the goods were kept on board for still another day, whereupon the vessel was libeled and arrested by the consignee for conversion of the goods. Held, that there was no conversion.-The Hattie Palmer (C. C. A.) 380; Hawkins v. Davis. Id.
The second section of the act of Feb. 13, 1893 (27 Stat. 445), does not forbid shipowners to See "Public Lands."
SPECIFIC PERFORMANCE. Specific performance may be decreed though the complainant does not specifically allege his readiness to perform, if a previous tender is alleged and the decree can be made conditional upon his performance.-Lee v. Electric Typographic Co. (C. C.) 519.
A contract for the sale of real estate, agreeing to secure a deferred payment "by mortgage on property worth two for one," is not too indefnite for specific performance.-Horton v. McKee (C. C.) 404.
Specific performance of a contract for the sale of real estate cannot be decreed unless the complainant clearly and definitely offers to comply with the contract on his part, especially as to any stipulations expressed in general terms only.-Horton v. McKee (C. C.) 404.
A bill, alleging an agreement by complainant to aid in selling certain patents, to surrender a license and assign another patent, in consideration of a share in the proceeds of the sale; that a sale was made free from complainant's license, which may accordingly have become merged by estoppel; and that complainant has performed his part of the contract,is not demurrable.-Lee v. Electric Typographic Co. (C. C.) 519.
STATES AND STATE OFFI-
Laws N. Y. 1893, c. 711, § 13, sanctions the bringing of a suit against the comptroller, as such, to recover possession of lands held by him under the act.-Saranac Land & Timber Co. v. Roberts (C. C.) 521.
A suit against the auditor of a state to restrain him from acting under a statute alleged to be unconstitutional, on the ground that his acts will irreparably damage complainant, is not a suit against the state. - Western Union Tel. Co. v. Henderson (C. C.) 588.
Statute of Limitations. See "Limitation of Actions."
1857, March 3, ch. 117, 11 Stat. 251..156, 170 1864, May 5, ch. 80, 13 Stat. 66. 1864, July 2, ch. 217, 13 Stat. 265. 1864, July 2, ch. 217, 13 Stat. 365....993, 994 1866, July 27, ch. 278, 14 Stat. 292. 1870, June 11, ch. 126, 16 Stat. 149. 1871, Feb. 21, ch. 62, 16 Stat. 426. 1874, June 22, ch. 396, 18 Stat. 193. 1875, Feb. 8, ch. 36, 18 Stat. 307... 1877, March 3, ch. 108, 19 Stat. 377. 1883, March 3, ch. 121, 22 Stat. 488... 1883, March 3, ch. 121, § 7, 22 Stat. 523.. 904, 905 1885, Feb. 26, ch. 164, 23 Stat. 332. 1885, March 3, ch. 354, art. 21, 23 Stat. 438 395 1887, Feb. 4, ch. 104, 24 Stat. 379.... 1887, Feb. 23, ch. 220, 24 Stat. 414. 1887, March 3, ch. 359, 24 Stat. 505... 1887, March 3, ch. 373, 24 Stat. 552.... 1888, Aug. 13, ch. 866, 25 Stat. 433. 1888, Sept. 13, ch. 1015, § 12, 25 Stat. 478 475 1888, Oct. 19, ch. 1210, 25 Stat. 566. 883 1890, Oct. 1, ch. 1244, 26 Stat. 567... 536 1890, Oct. 1, ch. 1244, § 1, Schedule A, Ipar. 24, 26 Stat. 568...
1890, Oct. 1, ch. 1244, § 1, Schedule I, par. 349, 26 Stat. 592.
1890, Oct. 1, ch. 1244, § 1, Schedule J, par. 373, 26 Stat. 594.
1890, Oct. 1, ch. 1244, § 1, Schedule N, par. 458, 26 Stat. 601.
1890, Oct. 1, ch. 1244, § 2, Free List, par. 560, 26 Stat. 605..
1890, Oct. 1, ch. 1244, § 2, Free List, par. 653, 26 Stat. 607.
1891, March 3, ch. 517. § 7, 26 Stat. 826. 1891, March 3, ch. 517, § 5, subd. 6, 26 Stat. 827
1891, March 3, ch. 551, 26 Stat. 1084. 1893, Feb. 13, ch. 105, 27 Stat. 445...919, 920 1893, Feb. 13, ch. 105, § 2, 27 Stat. 445.. 254 1893, Feb. 13, ch. 105, § 3, 27 Stat. 445. 230 1893, Nov. 3, ch. 14, 28 Stat. 7.. 1894, Aug. 27, ch. 349, par. 248, 28 Stat. 526
1894, Aug. 27, ch. 349, § 1, Schedule K, par. 283, 28 Stat. 530.
1895, Feb. 18. Circuit Court of Appeals.. 1895, Feb. 26, ch. 131, 29 Stat. 683..
1894, Aug. 27, ch. 349, § 1, Schedule K, par. 297, 28 Stat. 531.
1894, Aug. 27, ch. 349, Schedule N, par. 338, 28 Stat. 534.
1894, Aug. 27, ch. 349, Free List, par. 467, 28 Stat. 539..
§§ 753-761 $915