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report renders its directors liable for the existing debts of the corporation.

- Nelson v. Bank of Fergus County, 157 Fed. 161...84 C. C. A. 609


Of judgment, see “Judgment," $ 1.


In bankruptcy, see “Bankruptcy,” s 8.

COUNTIES. See “Municipal Corporations." § 1. Government and officers.

A deputy county auditor in Minnesota, authorized by law to act in the name of his principal and for whose official acts the auditor and his bondsmen were responsible, not only to the county, but to any person injured by his "misconduct in office" (Gen. St. Minn. 1894, 88 710, 5951), issued spurious refund orders on the county treasurer in favor of fictitious payees, purporting to be for the refunding of taxes received through redemption from tax sales. He procured the orders to be authenticated by the chairman of the board of county commissioners, forged the names of the fictitious payees to assignments thereof, and sold the same to a bank. Held, that any loss sustained by the bank through its purchase of the orders could not be attributed to the official misconduct of the deputy in issuing the same, but that its proximate cause was his individual acts in forging the assignments and selling the orders as genuine; that, the orders being nonnegotiable, the bank was put on inquiry, and acquired no greater rights than the supposed payees, and had no claim to recover any such loss, either from the county or the surety on the auditor's bond. - National Surety Co. v. State Sav. Bank, 156 Fed. 21..

81 C. C. A. 187 § 2. Fiscal management, public debt, securities, and taxation.

Const. II. 1870, art. 9, § 12, which limits the amount of indebteduess which may be lawfully contracted by any municipality to 5 per cent of the value of the taxable property therein, relates solely to the creation of indebtedness thereafter, and neither authorizes repudiation, nor affects the making of terms for payment of existing legal liabilities; hence the funding of such liabilities by a county, authorized by statute and vote, was unaffected by the limitation, and the fact alone that funding bonds issued for that purpose, reciting that “binding, subsisting legal obligations of said county" were thereby funded exceeded such limitation, neither implies nor amounts to a violation of the constitutional provision which can only be made to appear by impeaching such recital as to the validity of the indebtedness funded. -Hamilton County v. Montpelier Sav. Bank & Trust Co., 157 Fed. 19

...84 C. C. A. 523 Rev. St. Ill. 1881, c. 113, authorizes counties and other municipalities to issue bonds for the purpose of retiring outstanding obligations. A county had an outstanding issue of bonds. After years of litigation in botb state and federal courts the liability of the county was established in favor of the holders of a majority of such bonds, and judgments entered against it thereon, while other portions of the issue had been adjudged invalid, and the holders defeated. Others of the bonds were in the hands of holders whose rights had not been adjudicated. In such state of facts a compromise was effected, pursuant to which the county voted to issue funding bonds under such statute, to be used in settlement of the judgments and the outstanding unadjudicated bonds, and they were so used ; judgments being entered on the unadjudicated bonds by consent, and all judgments satisfied in exchange for the funding bonds. Such bonds recited that they were issued under such statute, and that “binding, subsisting legal obligations of said county" were thereby funded. Held that, under the statute, the county officers, authorized thereto by a vote of the electors, had power to make the compromise, and for that purpose to de. termine on behalf of the county that the unadjudicated outstanding bonds were valid and subsisting obligations, and that their recital of such fact estopped the county as against a bona fide holder for value of the funding bonds to deny their validity, on the ground that all or any part of the obligations thereby retired were invalid, either on constitutional or statutory grounds. -Hamilton County v. Montpelier Sav. Bank & Trust Co., 157 Fed. 19

.84 C. C. A. 523 A judge of a county court in Kentucky, acting under statutory authority, called a special election to determine whether or not the county should subscribe for a certain amount of the stock of a railroad company and is. sue its negotiable bonds for the amount, the subscription to be subject to certain stated conditions, one of which was that it should not be made nor the bonds issued "until said county

is fully and completely exonerated from the payment of the capital stock voted by said county and authorized to be subscribed" to another railroad company. The proposition having been carried, the judge subsequently entered an order reciting that, “the court being sufficiently advised," the bonds should issue, and they were thereupon issued and delivered, and the stock received by the county. At that time some years had elapsed since the county voted to subscribe to the stock of the other railroad company, and the clerk had been authorized to make the subscription, but no further steps had been taken to that end. Held, in an action against the county by a bona fide holder of bonds so issued, that the presumption arising from the subscription and issuance of the bonds, and the order of the judge authorizing the same, the condition precedent had been fulfilled, and the county exonerated from liability on account of its prior subscription was not overcome but was strengthened, where, although more than 30 years had elapsed, no contract completing such subscription had ever been made or demanded.

-Quinlan v. Green County, Ky., 157 Fed, 33........84 C. O. A. 537


Bankruptcy courts, see "Bankruptcy,” $8 2, 3.
Contempt of court, see “Contempt.”
Criminal jurisdiction, see "Criminal Law," § 1.
Mandamus to inferior courts, see "Mandamus," $ 1.
Removal of action from state court to United States court, see "Removal of

Review of decisions, see “Appeal and Error.”

§ 1. Establishment, organization, and procedure in general.

In accordance with the practice in this circuit to follow the decisions of other Circuit Courts of Appeals whenever they may properly form a precedent, Eidman v. Tilghman, 136 Fed. 141, is followed on a question of the construction of the statutes with reference to the war revenue tax on legacies. -Gill v. Austin, 137 Fed. 234..

.84 C. C. A. 677

§ 2. United States courts.

A Circuit Court of Appeals of the United States has no power to interfere by mandamus with the action of a Circuit Court, where the question involved relates to its jurisdiction as a Circuit Court of the United States, but the application in such case must be made to the Supreme Court; but such want of power in the Circuit Court of Appeals does not exist where the question involved relates to the jurisdiction of a Circuit Court as a judicial tribunal of original jurisdiction, having no relation to its limitation as a national court -Dowagiac Mfg. Co. v. McSherry Mfg. Co., 155 Fed. 524.

84 C.C.A.-45

84 C. C. A. 38 When the jurisdiction of a federal court depends upon the case being one arising under the Constitution or laws of the United States, the facts necessary to make such a case must be plainly shown upon the record, and it is not enough that such question may arise. - City of Louisville v. Cumberland Telephone & Telegraph Co., 155 Fed. 725..

...84 0. C. A. 151 A federal court is without jurisdiction of a suit to enjoin the enforce ment of a municipal ordinance, on the ground that it impairs the obligation of a contract or deprives complainant of property without due process of law, in violation of the Constitution of the United States, when the bill alleges that no power had been granted to the municipality by the Constitution or Legislature of the state to pass such ordinance; the probibition of the federal constitution being against state action only.

- City of Louisville v. Cumberland Telephone & Telegraph Co., 155 Fed. 725......

.84 C. C. A. 151 Every corporation of every state has the absolute right to institute, maintain, and defend in the federal courts its suits in any other states in the cases and on the terms prescribed by the acts of Congress. -Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1.....

84 C. C. A. 167 While the national courts may enforce rights created and remedies granted by state statutes according to their terms, the jurisdiction and power of those courts was not granted by, and it may not be revoked, annulled, or impaired by, state legislation. -Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1...

84 C. C. A. 167 It is settled law that for purposes of the jurisdiction of a federal court a corporation is a citizen only of the state in which it is incorporated ; and, where it is doing business and has an established office in another state, such fact does not affect its citizenship, but it may be there sued in such court by a citizen of the state residing in the district.

-Haight & Freese Co. v. Weiss, 156 Fed. 328........84 C. C. A. 224 A Circuit Court of Appeals is bound to inquire, first, as to its own jurisdiction of a cause brought before it by appeal or writ of error, and, second, as to the jurisdiction of the court from which the record comes, even though the question is not raised by the parties.

-Puget Sound Nav. Co. v. Lavendar, 156 Fed. 361....84 C. C. A. 259 The construction of a statute of a state by its highest court will be followed by the federal courts; but, where such highest court is composed of a number of judges, a construction placed upon a statute by the opinion of one judge which is not concurred in by a majority is not so binding. but leaves the question to be determined independently by a federal court. -San Jose-Los Gatos Interurban Ry. Co. v. San Jose Ry. Co., 156 Fed. 455.....

....84 C. C. A. 265 Where the power of a Circuit Court of the United States to proceed to the trial of an action against a nonresident defendant depends on whether there has been a general appearance by defendant, or, if not, upon the validity of attachments and garnishments of property within the district, both such questions are jurisdictional, and a decision of the court determining them in favor of the defendant and dismissing the action for want of jurisdiction is reviewable only by the Supreme Court under sections 5 and 6 of the Circuit Court of Appeals act of March 3, 1891 (26 Stat. 827, 828, C. 517 [U. S. Comp. St. 1901, pp. 549, 550]). '-Davis v. Cleveland, C., C. & St. L. Ry. Co., 156 Fed. 775..

84 C. C. A. 453 In the federal courts, the rule subsists that the distinction between legal and equitable defenses is always recognized, and such rule cannot be affected by state legislation or practice permitting equitable defenses in actions at law. -Pacific Mut. Life Ins. Co. of California v. Webb, 157 Fed. 155....

84 C. C. A. 603


See "Husband and Wife."


Of witness, see “Witnesses," $ 3.

See "Bankruptcy."
Subrogation to rights of creditor, see "Subrogation."


Indictment, information, or complaint, see "Indictment and Information."

Particular offenses. See “Conspiracy,” 1; “Contempt"; "Disorderly House"; "False Pretenses" ;

"Larceny"; "Perjury." Against postal laws, see “Post Office," § 1.

8 1. Jurisdiction.

A District Court of the United States has jurisdiction of a prosecution ander Rev. St. § 5395 [U. S. Comp. St. 1901, p. 3654), for false swearing in a naturalization proceeding, notwithstanding the fact that such proceeding was in a state court.

-Holmgren v. United States, 156 Fed. 439. ......84 0. C. A. 301 The object of Act June 30, 1906, c. 3934, 34 Stat. 814 (U. S. Comp. St. Supp. 1907, p. 797), creating the United States Court for China, and of the treaty under which it was created, in so far as that court is given criminal jurisdiction, was to secure to American citizens residing or sojourning in China and there charged with crime the benefit of the principles of the laws of the United States relating to the trial of persons accused of crime; but the statute at the same time makes such citizens subject to punishi nient for acts made criminal by any law of the United States or for acts recognized as crimes by the common law.

-Biddle v. United States, 156 Fed. 759... .....84 C. C. A. 415 The provisions of such statute, making the common law applicable to criminal offenses committed by American citizens in China, are to be construed as referring to the common law in force in the several American colonies at the time of their separation from England, and this ini. cluded not only the ancient common or unwritten law, but also statutes which had theretofore been passed amendatory of or in aid of the common law, among which was St. 30 Geo. II, c. 24, enacted in 1757, creating the offense of obtaining money or goods under false pretenses, and the subsequent amendments thereto.

-Biddle v. United States, 156 Fed. 759... ......84 O. O. A. 415 In view of the legislation of Congress making the obtaining of money or property by false pretenses a crime in Alaska and the District of Columbia and in other territory subject to the criminal jurisdiction of the United States, such act is an offense against the laws of the United States, within the meaning of Act June 30, 1906, c. 3934, 34 Stat. 814 [U. S. Comp. St. Supp. 1907, p. 797), conferring jurisdiction upon the United States Court for China, and an American citizen guilty of the commission of such act in China is subject to trial and punishment therefor by that court. -Biddle v. United States, 156 Fed. 759..

.84 C. C. A. 415 § 2. Limitation of prosecutions.

Where a conspiracy has been formed and an overt act has been done in execution of it more than three years before the filing of an indictment, a prosecution for that conspiracy and overt act is barred by the statute of limitations.

-Ware v. United States, 154 Fed. 577..............84 C. C. A. 503 When in such a case subsequent overt acts are committed under the old conspiracy within the three years, the existence of the conspiracy and the conscious participation of the defendant therein within the three years are indispensable to the maintenance of a prosecution for the conspiracy. But if these facts are established by competent evidence such a prosecution may be sustained.

-Ware v. United States, 154 Fed. 577..... ......84 C. C. A. 503 Proof of the formation by the defendant and others, more than three years before the indictment, of such a conspiracy as that charged in the indictment and of an overt act thereunder prior to the three years, is insufficient to sustain the charge of a conspiracy within the three years. But, in connection with evidence aliunde of the existence of the conspiracy and of the defendant's conscious participation in it within the three years, it is competent evidence for the consideration of the jury in determining the issue presented by the indictment.

-Ware v. United States, 154 Fed. 577...... .....84 C. C. A. 503 An overt act committed by one of the alleged co-conspirators within the three years pursuant to a conspiracy between him and the defendant, formed and followed by an overt act more than three years prior to the filing of the indictment without the defendant's consent or agreement within the three years to the continued existence and execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years. -Ware v. United States, 154 Fed. 577..

.84 C. C. A. 503

§ 3. Former jeopardy.

The acquittal of defendants on one of two indictments consolidated for the purpose of trial is not a bar to a conviction on the other where the offenses charged are distinct in point of law, although the same facts may have been relied on to a great extent in each case, —Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id.....

81 C. C. A. 477

8 4. Arraignment and pleas, and nolle prosequi or discontinuance.

Objection to the overruling or striking out of a plea of misnomer is waived by the subsequent filing of a demurrer to the indictment. -Lee v. United States, 156 Fed. 948......

...84 C. C. A. 418 A defendant cannot interpose a plea of misnomer after having challenged the suficiency of the indictment by a motion to quash.

-Lee v. United States, 156 Fed. 948..... ....84 C. C. A. 448

§ 5. Evidence-Judicial notice, presumptions, and burden of proof.

A general regulation promulgated by the General Land Office respect. ing homestead entries of public land, for the government of the officers of local land offices, pursuant to authority given by Rev. St. $ 2178 (U.

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