30. There was no error in the remarks of the District Attorney as to mas-
sage treatment. Ib.
31. There was no error in instructing the jury that: "It is your duty to
come to a conclusion upon all those facts, and the effect of all those
facts, the same as you would conscientiously come to a conclusion
upon any other set of facts that would come before you in life."
"There is no technical rule; there is no limitation in courts of justice,
that prevents you from applying to them (the facts and circumstances
in evidence) just the same rules of good, common sense, subject
always, of course, to a conscientious exercise of that common sense,
that you would apply to any other subject that came under your con-
sideration and that demanded your judgment." Ib.
32. There was no error in the following instructions as to obscene publi-
cations: "Now, what is (are) obscene, lascivious, lewd or indecent
publications is largely a question of your own conscience and your
own opinion; but it must come - before it can be said of such
literature or publication — it must come up to this point: that it
must be calculated with the ordinary reader to deprave him, de-
prave his morals, or lead to impure purposes.
It is your
duty to ascertain in the first place if they are calculated to deprave
the morals; if they are calculated to lower that standard which we
regard as essential to civilization; if they are calculated to excite
those feelings which, in their proper field, are all right, but which,
transcending the limits of that proper field, play most of the mischief
in the world."
33. In view of the previous instructions of the court, there was no error
in refusing to instruct the jury that the presumption of innocence
was stronger than the presumption that the government employés
who delivered the newspapers to Mr. Montgomery in the Chicago
post office building obtained such papers from the mails; or than the
presumption that the person who deposited them in the box in the
St. Louis post office building from which box the witness McAfee
took the papers obtained them from the mails. Ib.
1. Damages are the compensation which the law awards for an injury
done; and exemplary damages are allowable, in excess of the actual
loss, where a tort is aggravated by evil motive, actual malice, delib-
erate violence or oppression. Scott v. Donald, 58.
2. The intentional, malicious and repeated interference by the defendants
with the exercise of personal rights and privileges secured to the
plaintiffs by the Constitution of the United States, as alleged in the
complaint, constitutes a wrong and injury not the subject of compen-
sation by a mere money standard, but fairly within the doctrine of
the cases wherein exemplary damages have been allowed, as those
allegations of the complaints, though denied in the answers, have been
sustained.
1. The act of February 13, 1895, c. 87, 28 Stat. 664, providing that in the
adjudication of the claims against the District of Columbia therein
referred to, the Court of Claims should allow the rates established
and paid by the board of public works, simply conferred a gratuity
upon the persons covered by its provisions, which became "due and
payable" only from the time when the act which gave it was passed.
District of Columbia v. Johnson, 330.
2. The claim of the District of Columbia to offset against any recovery
here, the amount of the interest from June 1, 1874, on its coun-
terclaim found due in its favor against the claimants, cannot be
admitted. Ib.
EQUITABLE ASSIGNMENT.
See BANK, 2, 3, 4.
1. Every express executory agreement in writing, whereby the contracting
party sufficiently indicates an intention to make some particular
property, real or personal, or fund, therein described or identified, a
security for a debt or other obligation, or whereby the party promises
to convey or assign or transfer the property as security, creates an
equitable lien upon the property so indicated, which is enforceable
against the property in the hands not only of the original contractor,
but of his heirs, administrators, executors, voluntary assignees and pur-
chasers or encumbrancers with notice. Walker v. Brown, 654.
2. On the facts stated in the opinion of the court, which can with difficulty
be condensed without omitting something which might be deemed
essential, and applying to those facts the principle of law stated in the
preceding paragraph, Held, that Walker & Co. had an equitable lien
upon the bonds of Brown pledged to the Union National Bank, and
that those bonds had been returned to Brown under such circum-
stances as to continue the lien against them in the hands of Mrs.
Brown, to whom they had been given by him. Ib.
3. To dedicate property to a particular purpose, to provide that a speci-
fied creditor, and that creditor alone, shall be authorized to seek pay-
ment from it or its value, is to create an equitable lien upon it. Ib.
1. When, while disputed matters of fact concerning a tract of public
land, or the priority of right of claimants thereto, are pending un-
settled in the land department, a patent wrongfully issues for the
tract through inadvertence or mistake, by which the jurisdiction con-
ferred by law upon the land department over these disputed questions
of fact is lost, a court of equity may rightfully interfere, and restore
such lost jurisdiction by cancelling the patent. Germania Iron Com-
pany v. United States, 379.
2. The plaintiff's contention in this case was that, notwithstanding the
action of the Department of the Interior in certifying the land in
controversy to the State of Nebraska and the subsequent conveyances
in the claim of title from that State to the appellees, such apparent
legal title was absolutely void, because, by the acts of Congress the
land was not subject to selection by the State, it being within the limits
of the land grant to the Burlington & Missouri River Railroad Company,
and reserved for homestead and preëmption, but not for private entry.
All the facts upon which that contention rested were matters of
statute and record, and any defence to the apparent legal title created
by them was available in an action at law to recover possession. Held,
that, without deciding whether the selection and certification of these
lands were absolutely void or simply voidable at the election of the
Government, or were valid and beyond any right of challenge of the
Government, or any one else, a case was not presented for the inter-
ference of a court of equity. Deweese v. Reinhard, 386.
See BANK, 3, 4;
EQUITABLE LIEN;
INFANT, 3;
PUBLIC LAND, 1, 9;
Notwithstanding the provisions of the acts of July 2, 1864, cc. 210, 222
(reenacted in Rev. Stat. § 858, and Rev. Stat. D. C. §§ 876, 877), a
widow is incompetent to testify, in a suit which she is neither a party
to, nor interested in, to a private conversation between her husband
and herself in his lifetime; and a conversation between them in their
own home, in the presence of no one but a young daughter, who does
not appear to have taken any part in it, is a private conversation,
within the rule. Hopkins v. Grimshaw, 342.
See CRIMINAL LAW, 3 to 8, 11;
INFANT, 6, 7.
See CONSTITUTIONAL LAW, 13, 14, 15, 16, 17, 18.
1. The clerk of a district court of a Territory is bound to account to the
United States for fees received by him from private parties in civil
actions, and from the Territory, on account of territorial business.
United States v. McMillan, 504.
2. The clerk of a district court of a Territory is not bound to account to
the United States for sums received for his services in naturalization
proceedings. Ib.
HUSBAND AND WIFE.
See EVIDENCE.
Under the Indian depredation act of March 3, 1891, c. 538, 26 Stat. 851,
judgment may be rendered against the United States alone, when the
tribe of Indians to which the depredators belong cannot be identified,
and such inability is stated. United States v. Gorham, 316.
1. An infant may affirm a contract or settlement made for her benefit,
like the one here in controversy, and may sue upon it as if she were
originally a party to it. Glover v. Patten, 394.
2. In a suit by children to establish their rights as creditors of the estate
of their deceased mother other creditors are not necessary parties,
as the executors or administrators represent them and guard their
interests.
3. The bill in this case, filed by direction of the orphans' court to obtain
the advice of a court of chancery upon the rights of the respective
parties, discloses on its face a good cause of action in equity. Ib..
4. That cause of action is not barred by the Maryland statute of limita-
tions, still in force in the District of Columbia. Ib.
5. Where a parent, being a debtor to his child, makes an advancement to
the child, it is presumed to be a satisfaction pro tanto of the debt. Ib.
6. In a suit between devisees under a will, statements made by the de-
ceased to counsel respecting the execution of the will, or other similar
document, are not privileged. Ib.
7. The objection that the complainants were incompetent to testify as to
their mother's statements, and as to transactions in which she took
part is entitled to some weight and is not free from doubt; but such
testimony is not indispensable to the maintenance of the complainants'
bill. lb.
8. The general bequest to her daughters in the mother's will was not an
extinguishment of her debt to them. Ib.
9. No interest should be allowed prior to the mother's death. Ib.
For reasons stated in the opinion interest is to be computed at the rate
of six per cent, not at the rate of ten per cent. Walker v. Brown, 651.
INTERSTATE COMMERCE.
See CONSTITUTIONAL LAW, 13, 14, 15, 16, 17, 29.
1. Where the jurisdiction of a court, and the right of a plaintiff to prose-
cute his suit in it, have once attached, that right cannot be arrested
or taken away by proceedings in another court. In re Chetwood, 443.
2. Where property is in the possession of a court of competent jurisdic-
tion, that possession cannot be disturbed by process out of another
court of concurrent jurisdiction. lb.
A. JURISDICTION OF THE SUPREME COURT.
1. Although the question of the jurisdiction of the court below has not
been certified to this court in the manner provided by the fifth sec-
tion of the judiciary act of March 3, 1891, yet, as the case is before it
in a case in which the law of a State is claimed to be in contraven-
tion of the Constitution of the United States under another clause of
that statute it has jurisdiction of the entire case and of all questions
involved in it. Scott v. Donald, 58.
2. A general statement that the decision of a state court is against the
constitutional rights of the objecting party, or against the Fourteenth
Amendment, or that it is without due process of law, particularly
when these objections appear only in specifications of error, so called,
will not raise a Federal question, even where the judgment is a final
one within Rev. Stat. § 709. Clarke v. McDade, 168.
3. In these cases there was no final judgment, such as is provided for in
Rev. Stat. § 709, and there does not appear to have arisen any Fed-
eral question whatever. Ib.
4. The refusal of the trial court to grant a new trial cannot be assigned
for error in this court. Addington v. United States, 184.
5. On error to a state court in a chancery case (as also in a case at law),
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