vided the method of procedure adopted for these purposes gives rea-
sonable notice, and affords fair opportunity to be heard, before the
issues are decided. Iowa Central Railway Co. v. Iowa, 389:
2. Whether the court of last resort of a State has properly construed its
own constitution and laws in determining that a summary process
under those laws was applicable to the matter which it adjudged, is
purely the decision of a question of state law, binding upon this
court. Ib.
3. It is no denial of a right protected by the Constitution of the United
States to refuse a jury trial in a civil cause pending in a state court,
even though it be clearly erroneous to construe the laws of the State
as justifying the refusal. Ib.
4. In Louisiana the constitution and laws of the State, as interpreted by
its highest court, permit the taking, without compensation, of land for
the construction of a public levee on the Mississippi River, on the
ground that the State has, under French laws existing before its
transfer to the United States, a servitude on such lands for such a
purpose; and they subject a citizen of another State owning such
land therein, the title to which was derived from the United States,
to the operation of the state law as so interpreted. Held, that there
was no error in this so long as the citizen of another State receives
the same measure of right as that awarded to citizens of Louisiana in
regard to their property similarly situated. Eldridge v. Trezevant,
452.
5. The provisions of the Fourteenth Amendment to the Constitution do
not override public rights, existing in the form of servitudes or ease-
ments, which are held by the courts of a State to be valid under its
constitution and laws. Ib.
6. The act of August 1, 1888, c. 728, authorizing the Secretary of the
Treasury, whenever in his opinion it will be necessary or advanta-
geous to the United States, to acquire lands for a light-house by
condemnation under judicial proceedings in a court of the United
States for the district in which the land is situated, is constitutional.
Chappell v. United States, 499.
7. In 1883 R. had his legal residence in New Jersey, but actually lived in
New York. His wife resided in New Jersey, and filed a bill in the
Court of Chancery of that State against him for divorce on the ground
of adultery. The defendant appeared and answered, denying the alle-
gations in the bill. In 1886 the plaintiff filed a supplemental bill
charging other acts of adultery subsequent to the filing of the bill.
The court made an order, reciting the appearance and answer of the
defendant to the original bill, directing him to appear on a day named
and plead to the supplemental bill, and ordering a copy of this order,
with a certified copy of the supplemental bill, to be served on him per-
sonally, which was done in the city of New York. The defendant did
not so appear and answer, and the further proceedings in the case
resulted in a decree finding the defendant guilty of the acts of adul-
tery charged "in the said bill of complaint and the supplemental bill
thereto," granting the divorce prayed for, and awarding the plaintiff
alimony. The plaintiff commenced an action in a court of the State
of New York to recover alimony on this decree, whereupon the defend-
ant, by the solicitor who had appeared for him and filed his answer to
the original bill, applied for and obtained from the chancellor in New
Jersey an amendment to the decree so as to make it read that the de-
fendant had been guilty of the crime of adultery charged against him
in said supplemental bill. The complaint in the New York case set
forth the proceedings and decree in the New Jersey case, and alleged
that the defendant had accepted the proceedings as valid, and had,
after the decree of divorce, married another wife. The defendant
answered, denying that the Court of Chancery in New Jersey had any
jurisdiction to enter the decree on the supplemental bill, and admitting
his second marriage. On the trial of the New York case, the evidence
of an attorney and counsellor of the Supreme Court of New Jersey, as
an expert, was offered and received to the effect that in his opinion the
chancellor erred in taking jurisdiction and proceeding to judgment on
the supplemental bill, without service of a new subpoena in the State,
or the voluntary appearance of defendant after the filing of the sup-
plemental bill, and that the law of New Jersey did not warrant him in
so doing. The trial resulted in a judgment for defendant, which was
sustained by the Court of Appeals upon the ground that the law of
New Jersey and the practice of its Court of Chancery had been shown
by undisputed evidence to be as stated by the expert. Held, (1) That,
in the absence of statutory direction or reported decision to the con-
trary, this court must find the law of New Jersey applicable to this
case in the decree of the chancellor, and that the remedy of the defend-
ant, if he felt himself aggrieved, was by appeal; (2) That the opinion
of the expert could not control the judgment of the court in this re-
spect; (3) That the New York courts, in dismissing the plaintiff's
complaint, did not give due effect to the provisions of Article IV of the
Constitution of the United States, which require that full faith and
credit shall be given in each State to the judicial proceedings of every
other State. Laing v. Rigney, 531.
1. Impossibility of performing a contract, arising after the making of it,
although without any fault on the part of the covenantor, does not
discharge him from his liability under it. Jacksonville, Mayport &c.
Railway v. Hooper, 514.
2. A lessee of a building who contracts in his lease to keep the leased build-
ing insured for the benefit of the lessor during the term at an agreed
sum, and fails to do so, is liable to the lessor for that amount, if the
building is destroyed by fire during the term. 1b.
See CORPORATION, 3, 4;
EQUITY, 1, 2, 5;
SEAL.
1. By virtue of the act of March 3, 1887, c. 373, as corrected by the act of
August 13, 1888, c. 866, a corporation incorporated by a State of the
Union cannot be compelled to answer to a suit for infringement of a
trade-mark under the act of March 3, 1881, c. 138, in a district in
which it is not incorporated and of which the plaintiff is not an inhab-
itant, although it does business and has a general agent in that dis-
trict. In re Keasbey & Mattison Co., 221.
2. When no legislative prohibition is shown, it is within the chartered
powers of a railroad company to lease and maintain a summer hotel
at its seaside terminus, and such power is conferred on railroads in
Florida. Jacksonville, Mayport &c. Railway v. Hooper, 514.
3. The authority of the president of such company to execute in the name
of the company a lease to acquire such hotel may be inferred from the
facts of his signing, sealing, and delivering the instrument, and of the
company's entering into possession under the lease and exercising acts
of ownership and control over the demised premises, even if the min-
utes of the company fail to disclose such authority expressly given.
Ib.
4. The court adheres to the rule laid down in Central Transportation Co. v.
Pullman's Car Co., 139 U. S. 24, that a contract of a corporation which
is ultra vires in the proper sense is not voidable only, but wholly void
and of no legal effect; but it further holds that a corporation may also
enter into and engage in transactions which are incidental or auxiliary
to its main business, which may become necessary, expedient, or profit-
able in the care and management of the property which it is authorized
to hold, under the act by which it is created. Ib.
1. It was not the province of the court to instruct the jury in this case to
render a verdict in the plaintiffs' favor, and had it done so it would
have usurped the province of the jury, by determining the proper in-
ference to be drawn from the evidence, and by deciding on which side
lay the preponderance of proof. Bamberger v. Schoolfield, 149.
2. When the charge of the trial judge takes the form of animated argu-
ment, the liability is great that the propositions of law may become
interrupted by digression, and be so intermingled with inferences
springing from forensic ardor, that the jury will be left without proper
instructions, their province of dealing with the facts invaded, and
errors intervene. Allison v. United States, 203.
3. There is no error in an instruction to the jury, where the evidence is
conflicting, that in coming to a conclusion they should consider the
testimony in the light of their own experience and knowledge. Jack-
sonville, Mayport &c. Railway v. Hooper, 514.
See CRIMINAL LAW, 9, 15, 16, 17, 18;
COURT OF CLAIMS.
See JURISDICTION, E.
1. To support an indictment on section 5480 of the Revised Statutes, as
amended by the act of March 2, 1880, c. 393, for devising a scheme to
sell counterfeit obligations of the United States, by means of com-
munication through the post office, it is unnecessary to prove a scheme
to defraud. Streep v. United States, 128.
2. In order to come within the exception of "fleeing from justice," in sec-
tion 1045 of the Revised Statutes, concerning the time after the com-
mission of an offence within which an indictment must be found, it
is sufficient that there is a flight with the intention of avoiding being
prosecuted, whether a prosecution has or has not been begun. Ib.
3. In order to constitute "fleeing from justice," within the meaning of
section 1045 of the Revised Statutes, it is not necessary that there
should be an intent to avoid the justice of the United States; but it is
sufficient that there is an intent to avoid the justice of the State hav-
ing jurisdiction over the same territory and the same act. lb.
4. For the committing of the offence under Rev. Stat. § 4786, (as amended
by the act of July 4, 1884, c. 181, § 4, 23 Stat. 98, 101,) of wrongfully
withholding from a pensioner the whole, or any part of the pension
due him, an actual withholding of the money before it reaches the
hands of the pensioner is essential; and it is not enough that it is
fraudulently obtained from him, after it had reached his hands; and
that act does not forbid or punish the act of obtaining the money
from the pensioner by a false or fraudulent pretence. Ballew v. United
States, 187.
5. A general verdict of guilty, where the indictment charges the commis-
sion of two crimes, imports of necessity a conviction as to each; and
if it appears that there was error as to one and no error as to the
other, the judgment below may be reversed here as to the first, and
the cause remanded to that court with instructions to enter judgment
the second count. Ib.
6. When a person indicted for the commission of murder, offers himself
at the trial as a witness on his own behalf under the provisions of the
act of March 16, 1878, c. 37, 20 Stat. 30, the policy of that enactment
should not be defeated by hostile intimations of the trial judge.
Hicks v. United States, 150 U. S. 442, affirmed. Allison v. United States,
203.
7. The defendant in this case having offered himself as a witness in his
own behalf, and having testified to circumstances which tended to
show that the killing was done in self-defence, the court charged the
jury: "You must have something more tangible, more real, more cer-
tain, than that which is a simple declaration of the party who slays,
made in your presence by him as a witness, when he is confronted
with a charge of murder. All men would say that." Held, that this
was reversible error. Ib.
8. Other statements made by the court to the jury are held to seriously
trench on that untrammelled determination of the facts by a jury to
which parties accused of the commission of crime are entitled. Ib.
9. What is or what is not an overt demonstration of violence sufficient to
justify a resistance which ends in the death of the party making the
demonstration varies with the circumstances; and it is for the jury,
and not for the judge, passing upon the weight and effect of the evi-
dence, to determine whether the circumstances justified instant action,
because of reasonable apprehension of danger. Ib.
10. A count in an indictment which charges that the accused, "being then
and there an assistant, clerk, or employé in or connected with the
business or operations of the United States post office in the city of
Mobile, in the State of Alabama, did embezzle the sum of sixteen
hundred and fifty-two and 5% dollars, money of the United States, of
the value of sixteen hundred and fifty-two and dollars, the said
money being the personal property of the United States," is defective
in that it does not further allege that such sum came into his posses-
sion in that capacity. Moore v. United States, 268.
11. The count having been demurred to, and the demurrer having been
overruled, the objection to it is not covered by Rev. Stat. § 1025, and
is not cured by verdict. Ib.
12. Embezzlement is the fraudulent appropriation of property by a person
to whom it has been entrusted, or into whose hands it has lawfully
come; and it differs from larceny in the fact that the original taking
of the property was lawful, or with the consent of the owner, while,
in larceny, the felonious intent must have existed at the time of the
taking. Ib.
13. Acts of concealment by an accused are competent to go to the jury as
tending to establish guilt, but they are not to be considered as alone
conclusive, or as creating a legal presumption of guilt, but only as cir-
cumstances to be considered and weighed in connection with other
proof with the same caution and circumspection which their incon-
clusiveness, when standing alone, requires. Hickory v. United States,
408.
14. The presumption of guilt arising from the flight of the accused is a
presumption of fact — not of law — and is merely a circumstance tend-
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