1. Chicago, Milwaukee & St. Paul Railway v. Ross, 112 U. S. 377, explained
and distinguished. Baltimore & Ohio Railroad v. Baugh, 368.
2. Holland v. Challen, 110 U. S. 15, and Whitehead v. Shattuck, 138 U. S.
146, distinguished. Cates v. Allen, 451.
3. Irwin v. Williar, 110 U. S. 449, distinguished. Bibb v. Allen, 481.
4. Payne v. Hook, 7 Wall. 425, explained and distinguished.
McAuley, 608.
See CUSTOMS DUTIES, 8, 9;
CIRCUIT COURTS OF APPEALS.
This case coming on to be heard before the Circuit Court of Appeals, con-
sisting of the Circuit Judge and two District Judges, one of the judges
was found to be disqualified to sit in it, and another was unwilling to
sit, whereupon the court certified to this court questions and proposi-
tions of law concerning which it desired the instruction of this court,
and directed the clerk to transmit with the certificate twenty copies of
the printed record in the cause.
Held,
(1) That the certificate was irregular, as a quorum of the court did
not sit in the case;
(2) That it did not comply with rule 37 of this court, inasmuch as it
did not contain a proper statement of the facts on which the
questions or propositions of law arose;
(3) That the act of March 3, 1891, does not contemplate the certifica-
tion of questions or propositions of law to be answered in view
of the entire record in a cause; although this court may order
an entire record to be brought up in order to decide, as if the
case had been brought up by writ of error or appeal. Cincin-
nati, Hamilton & Dayton Railroad v. McKeen, 259.
Where, in an action against a common carrier to recover damages for in-
juries to a passenger, there is uncertainty as to the existence of either
negligence or contributory negligence, the question is not one of law,
but of fact, and to be settled by a jury; and this, whether the uncer-
tainty arises from a conflict in the testimony, or because the facts being
undisputed, fair-minded men will honestly draw different conclusions
from them. Richmond & Danville Railroad Co. v. Powers, 43.
See RAILROAD, 7.
1. It is a rule of general application, that where property is in the actual
possession of a court of competent jurisdiction, such possession cannot
be disturbed by process issued out of another court. Byers v. McAuley,
608.
2. An administrator appointed by a state court is an officer of that court;
his possession of the decedent's property is the possession of that court:
and as such it cannot be disturbed by process issued out of a Federal
See LOCAL Law, 2;
RECEIVER, 1, 2, 3.
1. In view of the notice actually given of the meetings of the freeholders
appointed to estimate the proportionate cost of a sewer in Portland,
Oregon, and to assess the proportionate share of the cost thereof upon
the several owners of property benefited thereby, and in view of the con-
struction placed upon the ordinance by the City Council, and in view
of the approval of the proceedings by the Supreme Court of the State
as being in conformity with the laws thereof, Held, that, notwithstand-
ing the doubt arising from the lack of express provision for notice, the
requirements of the Constitution as to due process of law had not been
violated. Paulsen v. Portland, 30.
2. The statutes of the State of Minnesota, requiring railway companies to
fence their roads, are not in conflict with the Constitution of the United
States. Minneapolis & St. Louis Railway v. Emmons, 364.
3. The fact that a court of chancery may summon a jury cannot be re-
garded as the equivalent of the right of a trial by jury, secured by the
Seventh Amendment to the Constitution. Cates v. Allen, 451.
4. The right to exclude or to expel aliens, or any class of aliens, abso-
lutely or upon certain conditions, in war or in peace, is an inherent
and inalienable right of every sovereign and independent nation.
Fong Yue Ting v. United States, 698.
5. In the United States, the power to exclude or expel aliens is vested in
the political departments of the national government, and is to be
regulated by treaty or by act of Congress, and to be executed by the
executive authority according to the regulations so established, ex-
cept so far as the judicial department is authorized by treaty or by
statute, or is required by the Constitution, to intervene. Ib.
6. The power of Congress to expel, like the power to exclude, aliens, or
any specified class of aliens, from the country, may be exercised en-
tirely through executive officers; or Congress may call in the aid of the
judiciary to ascertain any contested facts on which an alien's right to
remain in the country has been made by Congress to depend. Ib.
7. Congress has the right to provide a system of registration and identifi-
cation of any class of aliens within the country, and to take all proper
means to carry out that system. Ib.
8. The provisions of an act of Congress, passed in the exercise of its con-
stitutional authority, must, if clear and explicit, be upheld by the
courts, even in contravention of stipulations in an earlier treaty. Ib.
9. Section 6 of the act of May 5, 1892, c. 60, requiring all Chinese laborers
within the United States at the time of its passage, "and who are en-
titled to remain in the United States," to apply within a year to a col-
lector of internal revenue for a certificate of residence; and providing
that any one who does not do so, or is afterwards found in the United
States without such a certificate, "shall be deemed and adjudged to be
unlawfully in the United States," and may be arrested by any officer
of the customs, or collector of internal revenue, or marshal, or deputy
of either, and taken before a United States judge, who shall order
him to be deported from the United States to his own country, unless
he shall clearly establish to the satisfaction of the judge that, by reason
of accident, sickness, or other unavoidable cause, he was unable to
procure his certificate, and also, "by at least one credible white wit-
ness," that he was a resident of the United States, at the time of
the passage of the act; is constitutional and valid. lb.
See CRIMINAL LAW, 1, 2;
HABEAS CORPUS, 1;
JURISDICTION, A, 10, 11
RECEIVER, 1, 2.
1. If a contracting party absolutely binds himself to perform things
which subsequently become impossible of performance, or to pay dam-
ages for the nonperformance thereof, and the thing which causes the
impossibility might have been foreseen and guarded against in the
contract, or arose from the act or default of the promisor, he will be
held to the strict performance of his contract; but if the cause of the
impossibility be of such a character that it cannot reasonably be sup-
posed to have been in the contemplation of the contracting parties
when the contract was made, he will not be held bound by general
words, which, though large enough to include it, were not used with
reference to the possibility of the particular contingency which after-
wards happened. Chicago, Milwaukee & St. Paul Railway Co. v.
Hoyt, 1.
2. A railway company and several individuals entered into a contract
for the construction of a grain-elevator by the latter, wherein the com-
pany agreed that the total amount of grain received at said ele-
vators shall be at least five million bushels on an average for each
year during the term of this lease; and in case it shall fall short of
that amount the said party of the first part agrees to pay to the said
party of the second part one cent per bushel on the amount of such de-
ficiency, settlements to be made at the close of each year; and when-
ever it shall appear at the close of any year that the total of grain
received during so much of the term of this lease as shall then have
elapsed does not amount to an average of five million bushels for each
year, the party of the first part shall pay to the parties of the second
part one cent per bushel for the amount of such deficiency; but, in
case it shall afterwards appear that the total amount received up to
that time equals or exceeds the average amount of five million bushels
per annum the amount so paid to the party of the second part shall be
refunded or so much thereof as the receipts of the year shall have ex-
ceeded five million bushels, so that the whole amount paid on account
of deficiency shall be refunded should the total receipts for the entire
term equal or exceed fifty million bushels in all, or an average of five
million bushels for each year." Held, that the railway company only
agreed that the quantity of grain which it would deliver at the ele-
vators or tracts connected therewith, in the usual way in cars, for
storage and handling, should amount on an average to at least 5,000,000
bushels per annum for a period of ten years, and that, in case the grain
so delivered, or brought to the elevators for delivery, fell short of that
quantity, it would pay one cent per bushel on the amount of such de-
ficiency. Ib.
3. B., an attorney at law, residing at St. Louis, went to Leadville, Colo-
rado, on business of P. While there he obtained knowledge of a min-
eral tract, and after communicating with P., he acquired a part owner-
ship in it on behalf of P. and himself. P. came to Colorado and took
charge of the development of the property by sinking a shaft, the pro-
portionate part of the expense of which was to be borne by B., who
then returned to his business. Subsequently a correspondence by mail
and by telegraph took place between P. and B., which ended in the
acquisition of B.'s interest by P. The property became very valuable.
When B. learned this he filed a bill in equity to set aside his con-
veyance to P., as having been fraudulently obtained, and for an ac-
counting, and for the payment of his share of the profits to him by P.
On the correspondence and other facts in evidence, as recited and re-
ferred to in the opinion of the court, Held, that the evidence showed
that the parties had made a complete settlement of their rights under
the contract, and that B. had parted with all his interest in the prop-
erty, and the bill must be dismissed. Patrick v. Bowman, 411.
4. When an offer is made and accepted, by the posting of a letter of ac-
ceptance before notice of withdrawal is received, the contract is not
impaired by the fact that a revocation had been mailed before the
letter of acceptance. 1b.
5. By the agreed use of Shepperson's code, which provided that "unless
otherwise stated as agreed, it is distinctly understood that all orders
sent by this chapter are to be subject in every respect to the by-laws
and rules of the market where executed," and further, that "with
every telegram sent by this table the following sentence will be read
as a part of the message, viz., this sale has been made subject to all
the by-laws and rules of our cotton exchange in reference to contracts
for the future delivery of cotton," the rules and regulations which
were authorized to be made by the statutes of New York, under which
the exchange was incorporated, entered into and formed a part of the
transactions in this case. Bibb v. Allen, 481.
6. Contracts for the future delivery of personal property which the ven-
dor does not own or possess, but expects to obtain by purchase or
otherwise, are valid, if at the time of making the contract au actual
transfer of the property is contemplated by at least one of the parties
to the transaction. Ib.
7. Slip contracts, in the form prescribed by the rules and regulations of
the Cotton Exchange, constitute bought and sold notes, which, taken
together, as they should be, afford a sufficient memorandum in writing
between the brokers or their principal and the vendee of the cotton,
to satisfy the requirements of the statute of frauds. Ib.
8. The employment of a broker to sell property for future delivery implies
not only an undertaking to indemnify the broker in respect of the ex-
ecution of his agency, but also implies a promise on the part of the
principal to repay or reimburse him for such losses or expenditures
as may become necessary or result from the performance of the
agency.
CORPORATION.
See RECEIVER, 3.
COURT AND JURY.
See COMMON CARRIER;
PUBLIC LAND, 6.
1. The act of March 16, 1878, 20 Stat. 30, c. 37, having provided that a
person charged with the commission of a crime may, at his own re-
quest, be a competent witness on the trial, but that "his failure to
make such request shall not create any presumption against him," all
comment upon such failure must be excluded from the jury.
v. United States, 60.
2. A person indicted in a District Court of the United States for using the
mails to give information where obscene and lewd publications could
be obtained, offered evidence, through his counsel, of his previous
good character, but did not offer himself as a witness. The district
attorney, in summing up, said: "I want to say to you, gentlemen of
the jury, that if I am ever charged with a crime I will not stop by
putting witnesses on the stand to testify to my good character, but I
will go upon the stand and hold up my hand before high Heaven, and
testify to my innocence of the crime." Defendant's counsel excepted
to this, upon which the court said: "Yes, I suppose the counsel should
not comment upon the defendant not taking the stand. While the
United States court is not governed by the State's statutes, I do not
know that it ought to be the subject of comments of counsel." There-
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