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The cestui que trust is not a necessary party in an action by a trustee to
foreclose a mortgage. Dodge v. Tulleys, 451.
A collision occurred between a ship and a steam-tug while the navigation
rules established by the act of March 3, 1885, c. 354, 23 Stat. 438, were
in force. The tug was required to keep out of the way of the ship and
the ship to keep her course. The tug ported her helm to avoid the
ship, and that would have been effectual if the ship had not afterwards
changed her course by starboarding her helm. If the ship had kept
her course, or ported her helm, the collision would have been avoided.
The change of course by the ship was not necessary or excusable.
The tug did everything to avoid the collision and lessen the dam-
age. The tug had a competent mate, who faithfully performed his
duties although he had no license. Although the tug had no such
lookout as was required by law, that fact did not contribute to the
collision. The tug did not slacken her speed before the collision.
There was no risk of collision until the ship starboarded, and then the
peril was so great and the vessels were such a short distance apart that
the tug may well be considered as having been in extremis, before the
time when it became her duty to stop and reverse, so that any error
of judgment in not sooner stopping and reversing was not a fault.
The Blue Jacket, 371.
The tug was not in fault. The ship was wholly in fault. Ib.
ADMISSION OF A TERRITORY AS A STATE.
1. The finding, in a suit to quiet title, that the plaintiff and her grantees
2. Possession and cultivation of a portion of a tract under claim of owner-
ship of all, is a constructive possession of all, if the remainder is not
in adverse possession of another. 16.
3. A possession, to be adverse, must be open, visible, continuous and
exclusive, with claim of ownership, such as will noti parties seek-
ing information upon the subject that the premises are not held in
subordination to any title or claim of others, but against all titles and
claimants. Sharon v. Tucker, 533.
See Equity, 7;
LOCAL LAW, 7.
The appeal being from the Supreme Court of the Territory of Washington,
and that Territory having become a State, the case was remanded to
the Circuit Court of the United States for the District of Washington,
(Act of February 22, 1889, c. 180, 25 Stat. 676, 682, 683, SS 22, 23,)
for further proceedings according to law. The Blue Jacket, 371.
See JURISDICTION, A, 13.
ASSIGNMENT OF ERROR.
Where the errors assigned depend upon the terms and construction of a
contract, it should appear in the record. Red River Cattle Co. v. Sully,
An agreement to pay an attorney at law a retainer for professional ser-
vices which are never performed is not to be implied. Windett v.
Union Mutual Life Ins. Co., 581.
See MORTGAGE, 2.
See MUNICIPAL BOND, 6.
1. Maxwell Land Grant Case, 121 U. S. 325, affirmed, quoted from and
applied. United States v. Budd, 154.
2. Pope Manufacturing Co. v. Gormully, 144 U. S. 224, applied to this case
so far as the plaintiff claims to recover for a violation of a contract.
Pope Mfg. Co. v. Gormully & Jeffery Mfg. Co., 238; Same v. Same, 251.
3. The judgment below is affirmed upon the authority of United States v.
County of Macon, 99 U. S. 582. United States ex rel. Jones v. Macon
County Court, 568.
See REMOVAL OF CAUSES, 3.
CASES DISTINGUISHED OR EXPLAINED.
The case of The Manitoba, 122 U. S. 97, distinguished. The Blue Jacket,
The cases of Davies v. Arthur, 96 U. S. 135, and Beard v. Nichols, 120 U. S.
260, do not control the present case. Robertson v. Salomon, 603.
Life Insurance Company v. Francisco, 17 Wall. 672, distinguished from this
case. Crotty v. Union Mutual Life Ins. Co., 621.
Noonan v. Caledonia Mining Co., 121 U. S. 393, cited and distinguished.
Kendall v. San Juan Silver Mining Co., 658.
See CORPORATION, 2;
PATENT FOR INVENTION, 14 (2).
CHINESE RESTRICTION ACT.
Section 6 of the Chinese Restriction act of May 6, 1882, 22 Stat. 58, c. 126,
as amended by the act of July 5, 1884, 23 Stat. 115, c. 220, does not
apply to Chinese merchants, already domiciled in the United States,
who, having left the country for temporary purposes, animo revertendi,
seek to reënter it on their return to their business and their homes.
Lau Ow Bew v. United States, 47.
CIRCUIT COURTS OF APPEALS.
See JURISDICTION, A, 13; B.
See JURISDICTION, A, 10;
See ConstiTUTIONAL LAW, 2;
A. OF THE UNITED STATES.
1. The provision in Rule XV. of the House of Representatives of the fifty-
determining the presence of a quorum to do business,” is a constitu-
tional mode of ascertaining the presence of a quorum empowered to
act as the House. United States v. Ballin, 1.
2. A citizen of the United States, in the custody of a United States marshal
under a lawful commitment to answer for an off against the
United States, has the right to be protected by the United States
against lawless violence; this right is a right secured to him by the
Constitution and laws of the United States; and a conspiracy to
injure or oppress him in its free exercise or enjoyment is punishable
under section 5508 of the Revised Statutes. Logan v. United States,
See JURISDICTION, A, 9.
B. OF A STATE.
See MUNICIPAL BOND, 4, 5.
1. J. S. W. having advanced to his brother R. W. W.moneys to aid him in
developing mines, the title to which was in dispute, and being about
to advance further sums for the same purpose, the latter executed and
delivered to him an agreement as follows: “San Bernardino, Cal.,
May 14th, 1881. — For and in consideration of one dollar to me in
hand paid, the receipt whereof is hereby acknowledged, I hereby
agree that at any time within twelve months from this date, upon
demand of J. S. Waterman or his heirs, administrators or assigns, I
will execute to him a good and sufficient deed of conveyance to an
undivided twenty-four one-hundredths (%) of the following mines,
known as the Alpha, Omega, Silver Glance and Front, each being 600
feet wide by 1500 feet long, and the same interest in all lands that
may be located or has been located for the development of the above
mines, with such machinery and improvements as is to be placed upon
same, all subject to the same proportion of expenses, which is to be
paid out of the development of the above property, all situated near
the Grape Vine, in the county of San Bernardino, State of California.”
Held, (1) That, taken in connection with the evidence, this conveyed
to J. S. W. no present interest in the property, but only the right to
acquire such an interest within a period of “twelve months from this
date.” (2) That time was of the essence in such contract for acquisi-
tion. Waterman v. Banks, 394.
2. The principle that time may become of the essence of a contract for
the sale of property from the very nature of the property itself is
peculiarly applicable to mineral properties which undergo sudden,
frequent and great fluctuations in value, and require the parties
interested in them to be vigilant and active in asserting their rights.