miss, the motion to affirm will be sustained. Bienville Water Supply Co. v. Mobile,

92

67. The question of the effect of an order remanding a cause from a circuit court of the United States to a state court, in which the contention was made that the cause was still pending in the Federal court, gives color for a motion to dismiss a writ of error from the Supreme Court of the United States to the state court. Whitcomb v. Smithson,

when that court, after reciting that it adopts | ror, there being color for the motion to disthe facts found by the trial court as the statement of facts in the cause, also finds that the court below did not err in granting judgment in favor of the validity of county warrants, "notwithstanding the verified answer" denying their execution, nor in refusing to enter judgment, notwithstanding the lack of any evidence to establish the genuineness of the warrant sued on, "because the court finds that the warrants were verity of themselves," and that the verified answer only put defendant in a position to establish the facts. set up, and did not put plaintiff on proof of their genuineness, wherefore the court finds as a conclusion that the judgment should be affirmed. Id.

64. The constitutional objection, that a sentence of an army court-martial imposed a double punishment for the same offense, can hardly be deemed to be raised in a United States circuit court, so as to authorize a direct appeal to the Supreme Court of the United States, by a bare averment in a petition for a writ of habeas corpus that, petitioner having suffered the punishment of dismissal and of publication, his "imprisonment is without authority of law," and his further punishment and detention "and the carrying out of said sentence is contrary to law and to the provision of the Constitution of the United States, and is illegal." Car

ter v. Roberts,

VI. DISMISSAL.

861

303

68. An appeal from a decree of a territorial court, which is for more than the jurisdictional amount, will not be dismissed because the decree would have been for less than the jurisdictional amount if the territorial court had not erroneously disregarded a remittitur or release of part of the recovery; but the decree will be reviewed only to the extent of affirming the validity of the release or remittitur, and, as thus modified, will be affirmed. Simms v. Simms, 115

69. A motion to dismiss an appeal from the supreme court of a territory, on the ground that the amount in controversy is insufficient to give jurisdiction, must be denied where there are affidavits showing that the land in question is of greater value than $5,000, while the record contains an order made by the supreme court of the territory on the application for appeal, stating that more than that amount was involved in the action. Potts v. Hollen, 808

70. The validity of a settlement and part payment of a judgment, which leaves the writ of error, cannot be contested by the deamount in dispute insufficient to sustain a fendant, so as to prevent the dismissal of a writ of error which he has taken, when it is not questioned by either of the judgment creditors, but is ratified by their joining in a motion to dismiss. Thorp v. Bonnifield,

652

So.

84. Evidence cannot be weighed by the Supreme Court as a matter of first impressien, in a suit to enforce an order of the Interstate Commerce Commission, for the purpose of ascertaining whether it establishes such substantial and material competition as justified a carrier in concluding that dissimilarity of circumstance and condition was brought about. Louisville & N. R. Co. V. Behlmer, 309

to a state court, on a question as to a right to share in the distribution of a fund, the party who seeks to raise the question must have raised it in the state court, and cannot avail himself of the fact that someone else has raised it there, if he has failed to do Sully v. American Nat. Bank, 1072 75. A Federal question not specially set up or claimed in a state court cannot be considered on writ of error from the Supreme Court of the United States to the state court, merely because another Federal question, not connected with it, was raised in the state court. Keokuk & H. Bridge Co. v. Illinois, 76. The action of a circuit court in re-appeal by the Supreme Court of the United manding a cause to a state court after its States, except in a very clear case. The Alremoval is not open to revision on writ of bert Dumois, 751 error from the Supreme Court of the United States to the state court. Whitcomb v. Smithson, 303

299

d. Discretionary Rulings.

85. The allowance of interest in admiralty cases is discretionary, and not reviewable on

e. What Errors Warrant Reversal.

86. Error in the admission of evidence for

the prosecution will not require a reversal of a conviction against one who has in fact said under oath that he is guilty of the charge preferred against him. Motes v. United States, 1150

87. An instruction that officers had the right to use all necessary force to arrest the accused, and that he had no right to resist, is prejudicial error where the accused, who was thereupon convicted of murder committed in resisting an arrest, had not been guilty of any offense for which the officers had any legal authority to make the arrest. John Bad Elk v. United States, 874

States will not reverse a decision of a lower 88. The Supreme Court of the United court, if correct upon the merits, simply because the lower court may not have suffi ciently recognized the doctrine of comity. Mast, Foos & Co. v. Stover Mfg. Co.

856

89. A judgment dismissing a complaint against an internal revenue collector to rebeen unlawfully exacted may be reversed at cover the amount of a tax alleged to have the cost of the plaintiff in error, although the only contentions on his part were that the statute under which the tax was collected was unconstitutional, while the court holds that it was constitutional, where it appears that the tax was computed at an excessive amount by reason of an erroneous construction of the law. Murdock v. Ward,

1009

82. The question whether the judgment rendered was warranted by the facts found is open for consideration on appeal, where the 90. A judgment dismissing an action by a cause was tried without a jury, after express legatee against the United States to recover waiver of jury trial, and a referee duly ap- an alleged illegal tax under the war revenue pointed by written consent, whose findings, act, where the statute is held constitutional, rulings, and decisions were made those of but, on a proper construction thereof, is held the court. Chicago, M. & St. P. R. Co. v. not to justify the imposition of the whole Clark, 1099 amount of the tax that was collected,-will be reversed, although in another action the executor has established his right to recover the illegal excess from the internal revenue collector, in order that judgment of dismissal in the present case may not embarrass the plaintiff's right to claim indemnity from the executor. Sherman v. United States. 1014

83. A finding by the court, that warrants issued under and by virtue of certain acts of the legislature were issued with intention to have them circulate as money, is not a finding of fact; but is in the nature of a legal conclusion, which may be reviewable by the Supreme Court of the United States. Houston & T. C. R. Co. v. Texas, 673

VIII. JUDGMENT AND ITS EFFECT.

error where a judgment is reversed for lack of jurisdiction of the circuit court, if the cause was removed into that court at his instance. North American Transportation & 1061 T. Co. v. Morrison,

91. Equal division of the court on a motion for rehearing of a judgment of reversal previously rendered leaves that judgment in force, and does not result in affirming the judgment of the lower court. Carmichael APPORTIONMENT. v. Eberle, See INTERNAL REVENUE, 2.

672

92. A decree of reversal for further proceedings is properly entered nunc pro tunc as of the date of the submission of the cause on appeal, where one of the parties has died since the case was submitted. Louisville & N. R. Co. v. Behlmer, 309

93. A final decree dismissing a bill for an injunction may be directed by a circuit court of appeals in reversing a decree for a temporary injunction, where the bill is devoid of equity upon its face, and no supplementary evidence can be offered which will change the result. Castner v. Coffman,

1021

94. On appeal from an order granting a temporary injunction, the court may properly order the dismissal of the bill before the filing of an answer or the taking of proofs, where the bill is obviously devoid of equity upon its face, and its invalidity cannot be cured by amendment. Mast, Foos, & Co. 856 v. Stover Mfg. Co.

95. An affirmance of a judgment sustaining the constitutionality of the war revenue act of June 30, 1898, when no other question was raised by the plaintiff in error, may be made without prejudice to his right to relief as to so much of the tax, if any, as may have arisen from the wrong interpretation of the statute, where the officers charged with its administration have adopted and enforced an unsound interpretation of the statute by which an excessive amount of tax was imposed. Fidelity Ins. T. & S. D. Co. v. McClain, 998

ARBITRATION.

See also CONTRACTS, 7-10.

There is no inconsistency with the principles underlying international arbitration, in providing for a judicial investigation of fraud in obtaining an award from an international commission, the amount of which has been paid to the United States, in accordance with the award, for distribution, as the purpose of the suit is to enforce good faith on the part of citizens who seek the intervention of the government to obtain redress of alleged wrongs from another country. La Abra Silver Min. Co. v. United States,

ARMY AND NAVY.

As to Bounty Money, see BOUNTY.
See also EVIDENCE, 2.

223

1. The terms of a commission cannot

change the effect of the appointment of an
officer in the navy as defined by a statute
States,
authorizing it. Quackenbush v. United
654

2. Payments made to a late commander in the navy after he is lawfully out of the service cannot be recovered back by the gov ernment, but are ratified when Congress subsequently passes the act for his relief, providing for his reappointment to his original rank, but providing that he shall receive no pay except from the date of his reappointment.

Id.

3. The reappointment of a naval com96. The especial importance of a full and mander who had been dismissed or suspended clear finding of facts by the trial court on an issue as to the reasonableness of a sched- from the service, under the act of Congress ule of maximum rates for a railroad com- of February 16, 1897, suspending for his pany makes it proper for the court on ap- benefit only the provisions as to appointpeal, when there is no finding of the cost of ments in the navy, and authorizing the doing the business, to remand the case with President to appoint him, "late a commander instructions to refer the case to some compe- in the navy," to the same grade and rank as tent master to report fully the facts, and to of a certain date, and to place him on the proceed upon such report as equity shall re- retired list as of a later date, but providing quire, in order that the benefit of the serv-"that he shall receive no pay or emoluments ices of a competent master and an approval except from the date of such reappointment," of his findings by the trial court may be had-precludes any claim by him to leave or in the determination of the question. Chicago, M. & St. P. R. Co. v. Tompkins, 417 97. A question as to the recoupment of one half the damages to a cargo from a moiety of damages awarded to one of the vessels in collision, if not raised or passed upon on an appeal which directs a decree for a division of the damages between the vessels which are held to be in fault, remains open for determination by the lower court under a mandate to enter a decree in conformity to the opinion on appeal. Ex parte Union Steamboat Co.

waiting orders pay, or pay as a retired of ficer for any time preceding the date of his reappointment, or the substitution for the actual date thereof of the date to which the appointment related. Id.

ARREST.

See also APPEAL AND ERROR, 87.

An officer at the Pine Ridge Indian reservation in South Dakota has no authority to arrest a resident on such reservation without a warrant, on a charge of misdemeanor not committed in his presence. John 98. Costs may be imposed on plaintiff in Bad Elk v. United States, 874

1084

ASSESSMENTS.

On Stock, see BANKS.

ASSIGNMENT.

See COURTS, 3; DISTRICT OF COLUM-
BIA, 2.

ASSIGNMENT OF ERRORS.

See APPEAL AND ERROR, 57, 71.

ATTACHMENT.

4. An attachment against a national bank as garnishee is not an attachment against the bank or its property, nor a suit against it, within the meaning of U. S. Rev. Stat. § 5242, prohibiting suit against such bank in a state court, with a view to acquiring a preference over other creditors, after Earle v. Pennsylvania,

See APPEAL AND ERROR, 14; BANKS, 4- insolvency or in contemplation thereof.

7; CONFLICT OF LAWS, 1.

AUDIT CERTIFICATES.

1146 5. An attachment of a national bank and its receiver as garnishees can be maintained

See DISTRICT OF COLUMBIA, 2, 3; MAN- in a state court, although it cannot create

DAMUS, 5.

any lien upon specific assets of the bank in the receiver's hands, or disturb his custody of those assets, or prevent him from paying to the Treasurer of the United States, subject to the order of the Comptroller of the Currency, all moneys coming to his hands or realized by him as receiver from the sale of the property and assets of the bank. Earle v. Conway, 1149

6. A state court has no authority to order execution against a national bank in the hands of a receiver, for the enforcement of a lien obtained before the receiver's appointment, by an attachment against the bank as garnishee, although the rights thus acquired must be recognized by the Comptroller of the Currency. Earle v. Pennsylvania,

1146

See CONSTITUTIONAL LAW, 37.

BENEVOLENT SOCIETIES.
See INSURANCE, 7.

2. The widow and heirs of a shareholder in a national bank, to whom the probate court allots the shares of stock in indivision, in proportion to their interests in the estate, but who let the stock stand in the name of the deceased, without any notice of their title to it, are liable, under U. S. Rev. Stat. §§ 5139, 5151, 5152, to assessments on the stock in case the bank subsequently becomes BILL OF REVIEW. insolvent. Matteson v. Dent,

571

3. Enforcing the whole amount of an assessment on national bank stock, to the extent of the distributive share received, against one of the heirs or next of kin to whom the stock has been allotted by the probate court in indivision, in proportion to

BID.

See CONTRACTS, 2, 3.

See REVIEW.

BILLS AND NOTES.
See BONDS.

BILLS OF CREDIT.

Ald611

See MONEY; PAYMENT

BILLS OF EXCEPTIONS.

See APPEAL AND ERROR, 56-58.

BILLS OF LADING.

See also EVIDENCE, 8.

'A pledgee to whom a bill of lading is given as security gets the legal title to the goods, only if such is the intention of the parties, and that intention is open to explanation, even as against persons who may have innocently paid value for the bill. The Carlos F. Roses,

BLOCKADE.

929

1. A boom is "chartered by law" within Minn. Stat. 1894, § 2400, when it is owned by a corporation having authority to main

See also INTERNATIONAL LAW, 1; No- tain a boom, whether it is incorporated unTICE; PRIZE, 16. der a general law or a special law. Lindsay & P. Co. v. Mullen, 400

1. A blockade of an enemy's port may be established without any proclamation by the President, by the commander of the naval forces, as an adjunct to naval operations against other blockaded ports and the enemy's fleet. The Adula, 505 2. The legal effect of a lawful and sufficient blockade is the closing of the port and

an interdiction of the entrance of all vessels, of whatever nationality or business. Id. 3. A direction to enter a blockaded harbor, given by the commanding officer of one of the blockading vessels, which has hailed an approaching ship, cannot be construed as a permission to violate the blockade, as such permission would not be within the scope of his authority. Id.

4. If a master have actual notice of a blockade, he is not at liberty even to approach the blockaded port for the purpose of making inquiries of the blockading vessels, since such liberty would not fail to lead to attempts to violate the blockade under pretext of approaching the port for the purpose of making such inquiries. Id.

5. The sailing of a vessel with a premeditated attempt to violate a blockade is, ipso facto, a violation of the blockade, and renders the vessel subject to capture from the moment she leaves the port of departure. Id.

6. The blockade of a port is not terminated by the fact that the mouth of the bay is in the complete possession and control of the blockading fleet, when the enemy's port is still in the possession of the enemy's forces, as are several other positions in the neighborhood, and the port is 18 miles from the mouth of the bay, and access to it is obtained either by a small river emptying into the upper bay or by rail from another town on the bay.

BONA FIDE PURCHASER.

See PUBLIC LANDS, 13.

BONDHOLDERS.

See MORTGAGE, 4.

BONDS.

Id.

2. A lien upon logs of private parties for inspecting and scaling logs run through chartered booms is given to the surveyor general by Minn. Stat. 1894, § 2400, declaring that he "shall survey all logs and timber running out of any boom" now chartered, or which may hereafter be chartered by law in his dis

trict.

Id.

3. The extension of a shear boom across to near the Wisconsin shore, under authority the navigable channel of the Mississippi and of the state of Minnesota, cannot be complained of as an obstruction of navigation by one who has chosen to avail himself of its advantages, in order to escape a lien for survey and scaling under the state law after the logs are within the limits of the state of Minnesota, when neither the state of Wisconsin nor the United States makes any complaint. Id.

BOUNDARY.

1. The fact that a meandered line was run along the edge of a marsh in surveying conclusively show that they bordered on a fractional sections of public land does not body of water so as to give the purchaser riparian rights; but the meandered line is only an irregular line, beyond which may be forest or prairie, land or water, government or Indian reservation. Niles v. Cedar Point Club.

171

In determining whether vessels of the enemy sunk or destroyed were of inferior or superior force to the American vessels engaged in the battle, for the purpose of fixing the amount of bounty to be awarded under U. S. Rev. Stat. § 4635, the land batteries, mines, and torpedoes not controlled by those in charge of the enemy's vessels, but which The negotiability of bond due on or be- supported those vessels, are to be excluded

See also CORPORATIONS, 6; INTERNAL REVENUE, 7; MORTGAGE, 3; TAXES, 11.