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quent, and an entry and patent of part of the the act of March 3, 1857, did not have the ef-
land subsequent to such acts vested no title in fect of confirming the original selection.--Michi-
the natentee.-Wheeler v. City of Chicago (C. gan Land & Lumber Co. v. Pack (C. C. A.)
170; Same v. Butman, Id.
An act granting public lands in aid of the Spanish grants.
construction of a railroad within certain limits
on both sides of the road, and which provides
A claim by a grantee of an alleged Spanish
that the lands adjacent to the road shall be sur-grant, dated in 1788, including the Hot Springs
veyed after the route is fixed, and shall not be in the city of Hot Springs, Ark., will be pre-
liable to sale, entry, or pre-emption, operates of sumed to be abandoned in an action in 1894 to
itself to withdraw such lands from sale, entry, recover such land, though the heirs
of the gran-
pre-emption, or other disposition. - Southern tee sued under Act May 26, 1824, for confirma-
Pac. R. Co. v. Groeck (C. C.) 609.
tion 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
the office of the scrivener of the government,
It is within the power and is the duty of the and a putting of the grantee in pedal possession
land department to reserve from sale or entry according to the form prevailing in Spain and
such lands as may be required to satisfy a grant such province.-Muse v. Arlington Hotel Co. (C.
to a railway company, though before such reser-C.) 637.
vation a second grant to another railway com-
pany is made, the limits of which overlap the
lands reserved.-Northern Pac. R. Co. v. Mus- RAILROAD COMPANIES.
ser Sauntry Land, Logging & Manuf'g Co. (C.
C. A.) 993
See, also, "Master and Servant."
Lands claimed to be within Mexican grants Land grants, see "Public Lands."
are not public lands, within the operation of a Mechanics’ liens, see "Mechanics' Liens.
railroad grant, if the question of the location of
the boundaries of the private grant is undeter railroad as an entirety and prevent its sever-
It is the settled policy of courts to treat a
mined. --Southern Pac. R. Co. v. Brown (C. C.) ance if possible.-Compton v. Jesup (C. C. A.)
333; Same v. Bray, Id.
The legislature of South Carolina has power to
The secretary of the interior approved a list road aid bonds.-Town of Darlington v. Atlantic
authorize municipal corporations to issue rail-
of lands to be allotted to the state of Michigan Trust Co. (C. c. A.) 849.
under the swamp lands act, such list being based
on erroneous surveys, which were known to the The act of Minnesota of March 1, 1877, per-
state to be erroneous, and to be in process of mitting any railroad corporation to finish cer-
correction by the general government. Before tain incomplete railway lines, and acquire the
a patent was issued, corrected lists were pre- land grants appertaining thereto, was not in-
pared, omitting some lands included in the tended to forfeit the lands within the grant,
first list, and patents were issued for the lands previously conveyed by the government of the
included in the corrected lists. Held, that the state, nor to declare its deeds void; and the
title of the state did not attach to the lands in corporation completing the road acquired no
the first list upon its approval, before the issue rights in such lands. -St. Paul, M. & M. Ry.
of a patent, so as to prevent subsequent cor- Co. v. St. Paul & N. P. R. Co. (C. C. A.) 2;
rection of the errors, and to remove from the St. Paul & N. P. R. Co. v. St. Paul, M. & M.
operation of the grant lands not properly within Ry. Co., Id.
it.-Michigan Land & Lumber Co. v. Řust (C.
Whether the lien given by section 3192 of Mc-
C. A.) 155.
Clain's Iowa Code applies to rolling stock of a
The act of March 3, 1857, was not intended railway in favor of the lessor of depot grounds,
to apply to and
confirm old lists of lands passing quaere. - Manhattan Trust Co. v. Sioux City &
under the swamp lands act, which were founded N. Ry. Co. (C. C.) 72.
on erroneous surveys, and have been superseded
The mere filing of a stockholders' bill, asking
by new lists; nor to override the power of the the appointment of a railroad receiver to secure
secretary of the interior to correct mistakes.- a better management until the company's debts
Michigan Land & Lumber Co. v. Rust (C. C. can be discharged, and service of process there
under, does not of itself draw the company's
Lists of lands for allotment to the state of property into the possession of the court so as to
Michigan, under the swamp lands act, were se- prevent the company from surrendering to the
lected by the surveyor general, and reported by seller, in partial extinguishment of the purchase
him to the commissioner of the land office. The price, part of a lot of steel rails which have not
lists were afterwards superseded by lists made yet been laid. - Illinois Steel Co. v. Putnam (C.
in accordance with corrected surveys. Held, that C. A.) 515.
ceed if he could discover such other train by the
Where receivers have not returned property, use of ordinary care. Chicago, St. P. & 8. C.
held by them, for taxation, the claim for taxes Ry. Co. v. Chambers (C. C. A.) 148.
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 There can be no abandonment of a legal title
& A. R. Co. (C. C.) 1002.
to land by mere failure to assert it, in the ab-
The state of Georgia, upon leasing a railroad sence of adverse possession.-East Tennessee
to certain persons who were formed into a cor- Iron & Coal Co. v. Wiggin (C. C. A.) 446.
poration, granted it exemption from taxation,
except of one-half of 1 per cent. on its net in-
come. Held, that the exemption expired with
the lease, and property of the corporation after- of corporation, see "Corporations."
wards held by receivers was liable to taxation.-
Walters v. Western & A. R. Co. (C. C.) 1002. Receivers of a railroad are not responsible for
injuries caused primarily by an inevitable acci-
dent, though the consequences may have been
An Ohio railway corporation can mortgage aggravated by the inefficiency of employés of
after-acquired property, acquired either by itself the receivers, in whose selection due care was
or by any successor in title exercising the same not used.–Central Trust_Co. of New York v.
franchises or similar franchises granted by the East Tennessee, V. & G. R. Co. (C. C.) 635.
same sovereign.-Compton v. Jesup (C. C. A.) Property in the hands of a receiver cannot
be reached by proceedings for the collection of
The lien of a mortgage after a railroad com- taxes without the consent of the court.-Oakes
pany has gone into the hands of a receiver is v. Myers (C. C.) 807.
superior to the claim of the sureties on an ap-
peal by the railroad from a judgment against subject to garnishment except by consent of the
Independently of statute, a receiver is not
it, obtained before the receivership.-Farmers' court appointing him. - Central Trust Co. of
Loan & Trust Co. v. Northern Pac. R. Co. (C. New York v. Chattanooga, R. & C. R. Co. (C.
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, de-
livered to the railroad company before its use
on the depot grounds.-Manhattan Trust Co. Regulation of Commerce.
v. Sioux City & N. Ry. Co. (C. C.) 72.
See “Constitutional Law.”
Complainants, who had agreed to furnish part
of the cash to complete the purchase of a rail-
road 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
REMOVAL OF CAUSES.
for the repayment of the cash advanced by com-
plainants, which they desired to borrow. Such
Where a motion is made by a defendant in a
notes and mortgage, which were never used, state court after he has filed a petition for re-
were afterwards canceled, and a new mortgage moval to the federal court, and is afterwards
issued to secure bonds which were used in com- brought on in the federal court, the irregularity
pleting the road, and were bought by a third is waived by the plaintiff by seeking an ad-
party in good faith. In a suit to which all per- journment without raising the objection.-Kinne
sons interested were parties, the rights of all
V. Lant (C. C.) 436.
such persons, including complainants, were ad-
Where, pending an action by a corporation, a
judicated, and stock of the railroad company receiver is appointed, under foreclosure of a
was allotted to complainants in return for their mortgage made by it, coupons of bonds secured
advances. Held, that complainants acquired no by the mortgage maturing after the receiver-
lien superior to that of the mortgage securing ship cannot be allowed as set-off, if the re-
the bonds. -Peninsular Iron Co. v. Eells (C. C. ceiver is not entitled to be made a party plain-
tiff in the action.-Wheeling Bridge & Terminal
Ry. Co. v. Cochran (C. C. A.) 141.
Liability for negligence.
It is not error to refuse to instruct a jury that
In West Virginia all matters of set-off, though
the engineer of a train, which has collided with accruing pendente lite, may be allowed. -Wheel-
another, had a right to proceed towards the ing Bridge & Terminal Ry. Co. v. Cochran (C.
crossing where the collision occurred if the head. A.) 141.
light of such other train was not lighted, when It seems that when the jurisdictional facts.
the engineer in question was bound not to pro- | authorizing removal of a cause to a federal
court exist, but are not properly stated in the Where the owner of a scow, which drifted out
petition for removal, such petition may be to sea because left by a tug without sufficient
amended to show the facts properly.-Robert- anchoring, paid an adjudication of salvage
son v. Scottish Union & National Ins. Co. (C. against her, held, that he was entitled to recover
over against the tug; but, it appearing that the
The allegation that a defendant is “a com- was to see the scow well anchored, held, that
owner had a man on board whose duty it also
panv duly chartered and incorporated under the but half the amount paid could be recovered.--
laws of Great Britain" is a sufficient statement O'Connell v. The C. R. Stone (D. C.) 934.
of the citizenship of such corporation for the
purposes of removal to a federal court.-Robert- A steamer having been sunk under suspicious
son v. Scottish Union & National Ins. Co. (c. circumstances, the insurers employed libelant to
raise her, and not to permit owners to examine
her until after their own examination. Held,
Where an action commenced in a state court that the direct pecuniary interest of the insur-
by attachment of property of the defendant ex- ers, and their express employment of libelant,
ceeding in value $2,000, upon a claim of less than made them liable for the agreed amount of sal-
$2,000, is removed into the circuit court by a vage, under the nineteenth supreme court ad-
receiver of the defendant's property, who has miralty rule.-Chapman Derrick & Wrecking
been made a party because he claims the ex- Co. v. Providence-Washington Ins. Co. (D. C.)
clusive possession of the attached property, the 932.
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. č.) 945. See "Criminal Law.”
Risks of Employment.
SHERIFFS AND CONSTABLES.
See “Master and Servant."
Where a sheriff has levied on a box and con-
tents under attachment, it is for him to deter-
mine whether to open the box, defendant refus-
ing to unlock it. -Broderick v. Brown (C. C.)
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 See, also, “Admiralty”; “Collision"; "Marine
for as delivered, but which contains no agree- Insurance"; "Maritime Liens"; "Salvage";
ment on the part of the buyer to purchase and
receive any particular quantity of oil, is not
binding, for want of mutuality:-American Cot- The act of February 13, 1893, known as the
ton Oil Co. v. Kirk (C. C. A.) 791.
"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 suffi-
Where a tug, upon request, for 18 hours ciency of special fittings.-Hine v. New York
stood by certain barges, which were in a situa- & Bermudez Co. (D. C.) 920.
tion of apprehended danger from ice in a sudden
gale, and rendered various services to them, held, A charter of a ship to bring asphalt to New
that this was a salvage service, presumably' ben York, the ship to be fitted with shifting boards
eficial, without absolute proof that they would and bulkheads, suitable for carrying asphalt
have been worse off without such help; and cargo safely, to be done by owner's agent, but at
that $250 upon a valuation of $3,000 should be charterer's expense,” imposes upon the owner
awarded. - The Thomas Quigley' (D. C.) 936: the duty of providing suitable bulkheads and
The Jeremiah F. Barnes, Id.; Tice v. The Hud fittings, and where the same are insufficient,
A charter of a British ship to San Francisco relieve themselves by contract from the rigidity
exporters was signed in Liverpool by the Eng- of the implied warranty of seaworthiness, pro-
lish correspondents of the San Francisco brokers vided due diligence is used at the commence-
through whom the contract was made, without ment of the voyage to make the ship seaworthy.
previous authority from the charterers, and-Wuppermann v. The Carib Prince (C. C. A.)
after the alteration of a material provision 254; Middleton v. Same, Id.; Cardenas v. Same,
which they had insisted upon. The charterers Id.; Gillespie v. Same, Id.
received no notice of the change until a copy of
the charter was transmitted to them through
Exceptions in a bill of lading of “latent de-
the San Francisco brokers. They immediately fects in hull” include a latent defect existing at
notified the latter that they should insist upon the commencement of the voyage, and limit the
the condition, and were assured by them that implied warranty of seaworthiness.-Wupper-
there would be no trouble about it. The change mann v. The Carib Prince (C. C. A.) 254; Mid-
was not made, however; and, upon receiving dleton v. Same, Id.; Cardenas v. Same, Id.;
notice from the brokers of the arrival of the Gillespie v. Same, Id.
ship, they refused to receive her. Held, that
there was no ratification of the charter or waiver lieving vessels and owners from liability for
Section 3 of the act of February 13, 1893, re-
bof the condition in question.-Starr & Co. v. faults or errors in navigation or management
Galgate Ship Co. (C. C. A.) 234.
if due diligence has been used to make the ves-
The charter of a British ship by San Fran-sel seaworthy, and have her properly manned,
cisco exporters was negotiated in San Fran-equipped, and supplied, applies to foreign ves-
cisco through brokers, whose English corre- sels carrying freight to or from American ports,
spondents signed the charter party in Liverpool, as well as to American vessels.-The Silvia (c.
as agents of the charterers, without previous C. A.) 230; Franklin Sugar-Refining Co. v.
authority, and after alteration of a material Red Cross Line, Id.
provision insisted upon by the charterers. The
San Francisco brokers notified the charterers
Having ports closed at the commencement of
of the execution of the charter party, without a voyage only by heavy glass covers, leaving
informing them of the alteration; and, in re- open additional iron covers, does not constitute
sponse to their request, the charterers answered, unseaworthiness; and, if failure to close the
confirming the charter party. Held, that the iron covers constitutes negligence, it is negli-
letter of confirmation, having been written in gence in the management of the vessel, from
ignorance of a material alteration, was inopera- liability for which the owner and vessel are
tive, and that the transaction could not be re- freed by section 3 of the act of
garded as a contract effected by bought and ! 1893.-The Silvia (C. C. A.) 230; Franklin
sold notes.-Starr & Co. v. Galgate Ship Co. Sugar-Refining Co. v. Red Cross Line, Id.
(C. C. A.) 234.
The between decks, when perfectly tight and
A vessel employed and used with malicious strong, is not an improper place for the stowage
intent in arresting, without process, another of molasses.-Bregarov. The Centurion (C. Č.
vessel, is liable for the damages and expenses A.) 382; American Sugar Refining Co. v. Same,
thereby occasioned.-Weyant v. The Petersburg Id.
(D. C.) 387.
Where sugar was stored in the hold with hogs-
Carriage of goods.
heads of molasses in the between decks above
A ship is liable for damages to a cargo of sugar it, and some of the molasses casks were broken
by water leaking through the deck, which was by a heavy sea which heaved the ship to an
in poor condition. Howell v. The Mary L. Pe- angle of 45 degrees, and the molasses ran down
ters (D. C.) 919.
the scupper pipes and damaged the sugar, neid,
Where cases of oil were carried at shipper's stowed, and that the damage was caused by
on the evidence, that the cargo was properly
risk to Rio, and there, according to local regu- peril of the sea, from the consequences of which
lations, delivered in open lighters to the cus- the ship was exempt under
the bill of lading.-
toms authorities, and the consignees, though
duly notified, delayed for nine weeks to pay the Bregaro v. The Centurion (C. C. A.) 382; Amer-
duties and take the oil ashore, held, that the ship
ican Sugar Refining Co. v. Same, Id.
was only liable for loss by breakage and leakage A steamer making daily trips touched at a
while on board, and for a reasonable time, after landing to deliver freight, but, no one being
discharge into the lighters, in which to pay present to receive the same or pay the charges,
duties, and that for an alleged further shortage it was retained on board, the master sending
she was not responsible.-Guimaraes v. Pro- word to the consignee to have some one ready to
ceeds of The Seguranca (D. C.) 1014.
take the goods on the following day. On that
Alleged error of the master in filling, at sea, day no one was on hand, and the goods were
a tank having a latent defect, is not an error, kept on board for still another day, whereupon
“in the management of the vessel,” within the the vessel was libeled and arrested by the con-
meaning of the third section of the act of Feb-signee for conversion of the goods. Held, that
ruary 13, 1893 (27 Stat. 445).-Wuppermann v.
there was no conversion.—The Hattie Palmer
The Carib Prince (C. C. A.) 254; Middleton v. (C. C. A.) 380; Hawkins v. Davis, Id.
Same, Id.; Cardenas v. Same, Id.; Gillespie v.
The second section of the act of Feb. 13, 1893
(27 Stat. 445), does not forbid shipowners to See "Public Lands."
1824, May 26, ch. 173, 4 Stat. 52. ....637, 638
1827, March 2, ch. 51, 4 Stat. 234.
See "Constitutional Law."
1844, June 17, ch. 95, 5 Stat. 676.
1856, June 3, ch. 43, 11 Stat. 20.
SPECIFIC PERFORMANCE. 1857, March 3, ch. 117, 11 Stat. 251. .156, 170
1864, May 5, ch. 80, 13 Stat. 66..
Specific performance may be decreed though 1864, July 2, ch. 217, 13 Stat. 265.
the complainant does not specifically allege his 1864, July 2, ch. 217, 13 Stat. 365....993, 994
readiness to perform, if a previous tender is 1866, July 27, ch. 278, 14 Stat. 292.
alleged and the decree can be made conditional 1870, June 11, ch. 126, 16 Stat. 149.
upon his performance.-Lee v. Electric Typo- 1871, Feb. 21, ch. 62, 16 Stat. 426....886, 887
graphic Co. (C. C.) 519.
1874, June 22, ch. 396, 18 Stat. 193... 886
1875, Feb. 8, ch. 36, 18 Stat. 307... 536
A contract for the sale of real estate, agree 1877, March 3, ch. 108, 19 Stat. 377.
ing to secure a deferred payment "by mortgage 1883, March 3, ch. 121, 22 Stat. 488. 536
on property worth two for one,” is not too indeń- 1883, March 3, ch. 121,' $ 7, 22 Stat. 523..
nite for specific performance.-Horton v. Mc-
Kee (C. C.) 404.
1885, Feb. 26, ch. 164, 23 Stat. 332... 883
Specific performance of a contract for the sale 1885, March 3, ch. 354, art. 21, 23 Stat. 438 395
of real estate cannot be decreed unless the com- 1887, Feb. 4, ch. 104, 24 Stat. 379.. 881
plainant clearly and definitely offers to com- 1887, Feb. 23, ch. 220, 24 Stat. 414. 883
ply with the contract on his part, especially as 1887, March 3, ch. 359, 24 Stat. 505. 433
to any stipulations expressed in general terms 1887, March 3, ch. 373, 24 Stat. 552. 685
only. -Horton v. McKee (C. C.) 404.
1888, Aug. 13, ch. 866, 25 Stat. 433. 685
A bill, alleging an agreement by complain. 1888, Oct. 19, ch. 1210, 25 Stat. 566.
1888, Sept. 13, ch. 1015, $ 12, 25 Stat. 478 475
ant to aid in selling certain patents, to sur- 1890, Oct. 1, ch. 1244, '26 Stat. 567.
render a license and assign another patent, in 1890, Oct. 1, ch. 1244, § 1, Schedule A,
consideration of a share in the proceeds of the
par. 24, 26 Stat. 568..
sale; that a sale was made free from com- 1890, Oct. 1, ch. 1244, § 1, Schedule I,
plainant's license, which may accordingly have
par, 349, 26 Stat. 592..
become merged by estoppel; and that complain- 1890, Oct. 1, ch. 1244, § 1, Schedule J,
ant has performed his part of the_contract, -
par. 373, 26 Stat. 594.
is not demurrable.-Lee v. Electric Typographic 1890, Oct. 1, ch. 1244, § 1, Schedule N,
Co. (C. C.) 519.
par. 458, 26 Stat. 601...
1890, Oct. 1, ch. 1244, § 2, Free List, par.
STATES AND STATE OFFI-
560, 26 Stat. 605....
1890, Oct. 1, ch. 1244, 82, Free List, par.
653, 26 Stat. 607...
Laws N. Y. 1893, c. 711, § 13, sanctions the 1891, March 3, ch. 517, s'5, subd. 6, 26
1891, March 3, ch. 517, § 7, 26 Stat. 826. 23
bringing of a suit against the comptroller, as
such, to recover possession of lands held by 1891, March 3, ch. 551, 26 Stat. 1084.
him 'under the act.-Saranac Land & Timber 1893, Feb. 13,'ch. 105,'27 Stat. 445...919, 920
Co. v. Roberts (C. C.) 521.
1893, Feb. 13, ch. 105, $ 2, 27 Stat. 445.. 254
A suit against the auditor of a state to re- 1893, Feb. 13, ch. 105, § 3, 27 Stat. 445.. 230
strain him from acting under a statute alleged 1893, Nov. 3, ch. 14, 28 Stat. 7..
to be unconstitutional, on the ground that his 1894, Aug. 27, ch. 349, par. 248, 28 Stat.
acts will irreparably damage complainant, is
not a suit against the state. – Western Union 1894, Aug. 27, ch. 349, § i, schedule K,
Tel. Co. v. Henderson (C. C.) 588.
par. 283, 28 Stat. 530.
1894, Aug. 27, ch. 349, § 1, Schedule K,
Statute of Limitations.
par. 297, 28 Stat. 531.
1894, Aug. 27, ch. 349, Schedule N, par.
See “Limitation of Actions."
338, 28 Stat. 534.
1894, Aug. 27, ch. 349, Free List, par. 467,
28 Stat. 539.
1895, Feb. 18. Circuit Court of Appeals.. 23
An action on a statute of one state can be 1895, Feb. 26, ch. 131, 29 Stat. 683. 807
sustained in a federal court in another state,
without pleading such statute.-Noonan v. Dela-
ware, L. & W. R. Co. (C. C.) 1.
.881, 886, 887