$ 6.

§ 7.

$ 8.

$ 9.

S. Comp. St. 1901, p. 1586], becomes a part of the body of public laws
of which the courts take judicial notice.

-Nurnberger v. United States, 156 Fed. 721....

..84 C. C. A. 377

Other offenses, and character of accused.
On the trial of defendants charged with having conspired with a person
named and with others to the grand jurors unknown to induce a partner-
ship to accept rebates from railroad companies, evidence of contempo-
raneous contracts made by defendants with other large shippers, similar in
all respects to that made with the partnership named, and that such ship-
pers also received sums of money indirectly which they understood to come
from defendants, and to be in fact rebates, was admissible on the ques-
tion of intent and motive in the transaction charged in the indictment.
-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id
84 C. C. A. 477

-

Acts and declarations of conspirators and codefendants.
On the trial of defendants charged with having conspired with a person
named and with others to the grand jurors unknown to induce a partner-
ship to accept rebates from railroad companies on shipments in violation
of the interstate commerce law, where there was evidence tending to es-
tablish the conspiracy, and that the arrangement for the illegal rebates
was made between defendants and one member of such partnership, en-
tries in a private memorandum book kept by such partner, showing sums
received as "freight commissions" and distributed between the partners
individually, which transactions did not appear on the books of the firm,
were admissible in evidence.

-

-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id....
84 C. C. A. 477

Documentary evidence and exclusion of parol evidence there-

by.
Where a general regulation promulgated by the General Land Office re-
specting homestead entries of public land, for the government of the offi-
cers of local land offices, is pertinent to the issue as to the criminal in-
tent of a defendant charged with a criminal offense under the land laws,
as corroborating his testimony as to his understanding of the requirement
of the law, by showing that such understanding was in accordance with
that of the Land Department until after the alleged offense, he was en-
titled to have such regulation placed before the jury as a matter of evi-
dence, and its exclusion was error.

-Nurnberger v. United States, 156 Fed. 721..........84 O. C. A. 377

Testimony of accomplices and codefendants.

On the trial of a defendant charged with perjury in giving false testi-
mony in a proceeding for naturalization of an alien, the applicant for.
citizenship is not an accomplice in such sense as to require the jury to be
cautioned in respect to his testimony, where it does not appear that de-
fendant gave the false testimony at the instigation of such applicant.

-Holmgren v. United States, 156 Fed. 439........84 C. C. A. 301

§ 10. Trial-Province of court and jury in general.

$ 11.

The evidence in every criminal case should be sufficient to warrant a
reasonable conclusion of the defendant's guilt, otherwise it is the duty of
the court to instruct a verdict in his favor.

-Mickle v. United States, 157 Fed. 229.

.84 C. C. A. 672

Necessity, requisites, and sufficiency of instructions.
In a criminal case, the refusal of a requested instruction that defend-
ant is presumed innocent, and that such presumption remains until over-
come by the proof, is reversible error, notwithstanding the giving of a
proper instruction on the subject of reasonable doubt.

-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id.....
84 C. C. A. 477

} 12. Appeal and error, and certiorari-Presentation and reservation
in lower court of grounds of review.

§ 13.

An assignment of error in a criminal case, based upon the fact that
the jury were permitted to take with them to their room the indictment,
on which was indorsed the verdict of the jury on a former trial finding the
defendant guilty, cannot be considered by the appellate court, where
the matter was not brought to the attention of the trial court until after
the verdict was returned.

-Holmgren v. United States, 156 Fed. 439..........84 C. C. A. 301
Where evidence is admitted in the course of the trial for certain pur-
poses, an exception to a paragraph in the charge of the court, which de-
clares that this evidence was properly admitted for these purposes, in the
absence of any request to the court to exclude any specific evidence or
to limit its effect, and in the absence of any objection or exception to
its admission, and in the absence of any specification of the particular
evidence challenged, is unavailing, because in such a case the record fails
to prove the error, and the presumption that the action of the court be-
low was right must prevail.

-Ware v. United States, 154 Fed. 577.

Review.

...

..84 C. C. A. 503

A judgment of conviction in a criminal case will not be reversed by an
appellate court because of the overruling of a motion for a new trial
based upon the ground that the jury took to their room the indictment,
on which was recorded a former conviction of defendant, where such
motion and the supporting affidavits were considered and passed upon
by the trial court.

-Holmgren v. United States, 156 Fed. 439.......... .84 C. C. A. 301
While the permitting of leading questions is a matter resting in the
sound discretion of the trial court, allowing a district attorney in a crim-
inal case to ask questions of his own witnesses, who are not unwilling or
unfriendly, which are leading and in a form to suggest the answer de-
sired and call for a mere conclusion of the witness, is an abuse of discre-
tion, and is prejudicial error.

-Nurnberger v. United States, 156 Fed. 721........84 O. C. A. 377

CUSTODY.

Of children in suit for divorce, see "Divorce," § 1.

CUSTOMS DUTIES.

§ 1. Goods subject to duty, rate, and amount.

In Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat.
187 [U. S. Comp. St. 1901, p. 1670], the proviso that "all manufacturers,
of which wool is a component material, shall be classified and assessed
for duty as manufactures of wool," is not limited to the goods contain-
ing silk which are the subject of said paragraph, but extends to all silk
and wool goods; and dress goods in chief value of silk, but in part of
wool, become by virtue of this proviso subject to the duty on wool goods,
rather than that on silks.

-United States v. Scruggs, Vandervoort & Barney Dry Goods Co..
156 Fed. 940...
..84 C. C. A. 440

Of the provisions in Tariff Act July 24, 1897. c. 11, § 1, Schedule B, par.
88, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], (1) for "tiles, plain un-
glazed, one color, exceeding two square inches in size," and (2) for "tiles
* * semi-vitrified, flint," etc., the latter is more specific; and tiles
embraced in both descriptions are dutiable under the latter.

-Schroeder v. United States, 156 Fed. 957; Engelhard v. Same, Id...
84 C. C. A. 457

Iron castings, which by careful additional work have been fitted as parts of machines, are no longer dutiable as "castings," under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 148, 30 Stat. 162 [U. S. Comp. St. 1901, p. 1640], but have been advanced to the condition of "articles of iron * manufactured," under paragraph 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]. -John Bromley & Sons v. United States, 156 Fed. 958.

*

*

partly

串

*

84 C. C. A. 458

§ 2. Entry and appraisal of goods, bonds, and warehouses.

For the purpose of ascertaining the date for filing protests, importers are bound to take notice of the dates given in the liquidation bulietin publicly posted as prescribed by the customs regulations; and, in case of conflict between the bulletin and notations on the entry, they should be governed by the former.

-United States v. Charles H. Wyman & Co., 156 Fed. 97.

84 C. C. A. 123' Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], permitting protests against decisions of collectors of customs to be filed "within ten days after but not before" liquidation of the entries, fixes definitely the time within which a protest must be filed; and, if not filed within this period, a protest is invalid. -United States v. Charles H. Wyman & Co., 156 Fed. 97.

84 C. C. A. 123

By a customhouse error the date of liquidation was stated in an entry as being later than it was in fact, and a representative of the importer was thereby misled; but the correct date was given in both a notice sent to the importer and the liquidation bulletin posted for inspection by importers. Held, that the error did not have the effect of extending the period for filing protests, prescribed by Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]. -United States v. Charles H. Wyman & Co., 156 Fed. 97.

84 C. C. A. 123 The classification by a collector of customs of imported goods under a tariff law is presumably correct.

-Vandiver v. United States, 156 Fed. 961..........84 O. C. A. 522 Findings of the Board of General Appraisers, unless unsupported or against the weight of evidence, or additional evidence has been taken, will not be disturbed by the courts on appeal.

-Vandiver v. United States, 156 Fed. 961..........84 O. C. A. 522

DAMAGES.

§ 1. Pleading, evidence, and assessment.

In an action by a servant employed as a car repairer to recover from the master for a personal injury, where it was shown that he was a carpenter by trade, on the question of damages, evidence of his disability caused by the injury was not limited to the effect on his earning capacity as a car repairer, but it was competent to show the effect on his capacity to earn wages as a carpenter.

-Northern Pac. Ry. Co. v. Wendel, 156 Fed. 336.....84 C. C. A. 232 Under a declaration, in an action for personal injury, which describes the wounds received by plaintiff, evidence is admissible, under the settled rules stated in Chitty on Pleading, 411-414, with respect to injuries not described, but which naturally resulted from such wounds, as affecting the amount of damages recoverable.

-Katahdin Pulp & Paper Co. v. Peltomaa, 156 Fed. 342.

84 C. C. A. 238

DEATH.

Liability for death caused by operation of railroad, see "Railroads," §§ 1-3.
Liability of carrier for death of passenger, see "Carriers," § 2.

§ 1. Actions for causing death.

When decedent, an unmarried female 19 years of age at the time of her
death, was two years old, her mother died, and she was taken by plain-
tiff, her father, to reside with her aunt, with whom she lived until she
was 16, when she was sent by him to school to fit herself for teaching.
She was sympathetic, ambitious, industrious, of good health, and fond of
her father, who paid the expenses incident to her education, and desired
to keep house for him, but he, being a farm laborer and traveling ma-
chinist, had not married again, and at the time of his daughter's death
was 60 years of age. Held, that evidence of these facts, in the light of
the natural influence or promptings of filial ties, was sufficient to sustain
a finding that there was a reasonable expectation of substantial, though
not large, pecuniary benefit to the father from a continuance of the life
of the daughter.

-Hopper v. Denver & R. G. R. Co., 155 Fed. 273......84 C. C. A. 21
Mills' Ann. St. Colo. § 1508, creates an action for death negligently caus-
ed by a public carrier, and declares that it shall forfeit for every person
and passenger so injured or killed not more than $5,000, nor less than
$3,000, which may be sued for and recovered: (1) By the husband or wife
of deceased; or (2) if there be no husband or wife, or he or she fail to sue
within a year after such death, then by the heir or heirs of the deceased,
or, if the deceased be a "minor or unmarried," then by the father and
mother, or, if either of them be dead, then by the survivor. Held that, if
the deceased left a husband or wife, the sole right of action was in such
survivor, save that as against children the right would be lost unless
asserted within a year; if there was no surviving husband or wife, or
the survivor failed to sue within a year, then the sole right would be
in the children; and if there was neither surviving husband nor wife nor
any children, then only would the right of action be in the father and
mother, or the survivor; so that where an unmarried adult female is
killed by the negligence of a carrier, and she leaves neither husband,
child, nor mother, the right of action is in her surviving father.

-Hopper v. Denver & R. G. R. Co., 155 Fed. 273......84 C. C. A. 21

DEBT, ACTION OF.

For recovery of stamp taxes, see "Internal Revenue."

Of deeds delivered as escrow, see "Escrows."

Plaintiff was elected head banker of the Modern Woodmen of America,
an incorporated fraternal society, and as such became custodian of its
funds. As required by the by-laws, he gave a bond for the faithful per-
formance of his duties, among which was the depositing of all money in
depositories, selected by him but approved by the directors of the society.
He was authorized to transfer funds from one depository to another, but
not to withdraw them for any other purpose except upon checks, also
signed by other officers. Notwithstanding such deposits, the by-laws pro-
vided that he should remain personally liable for the safe-keeping and
forthcoming of the funds when required, and that the approval by the di-
rectors of a depository, and a bond given by it, should not relieve him
from such liability on his own bond. A by-law provided that bonds of
depositories should be made payable "to the head banker and to the
Modern Woodmen of America, or either of them," and that they should be
executed in duplicate, one to be held by the head banker, and one by the
board of directors. Such a bond, given by an approved depository, re-
ferred to such by-law, and ran to plaintiff by name as head banker, and
to the society "jointly and severally," and was conditioned in a penal sum
to be paid to plaintiff "as head banker of said Modern Woodmen of
America, and to the said Modern Woodmen of America, or either him or
it." Held that, construing the language of such bond in view of rela-
tions between the society and plaintiff, and the latter's continued respon-
sibility for the funds, it was clearly intended, not only as security for the
society, but also as personal security for plaintiff-no reference being
made therein to his successor in office; that on the death of the prin
cipal, and the refusal of his representatives to transfer the funds on de-
posit on his demand, plaintiff could maintain an action thereon, against
the sureties, in his own name, even though his term of office had expired
before the action was commenced.

-Bort v. E. H. McCutchen & Co., 157 Fed. 182......84 C. C. A. 630

See "Witnesses."

DEPOSITIONS.

DEPOSITS.

In bank, see "Banks and Banking," § 1.

DISCHARGE.

From employment, see "Master and Servant," § 1.
From indebtedness, see "Release."

DISCRETION OF COURT.

Consolidation of action, see "Actions," § 1.

Review in civil actions, see "Appeal and Error," § 7.

Review of discretionary rulings, see "Criminal Law," § 13.