not decide the case on the facts contained in the stipulation, nor adju-
dicate on the legal effect of those facts, while it had jurisdiction to
try the case; (2) The cases of Wilson v. Sandford, 10 How. 101; Har-
tell v. Tilghman, 99 U. S. 547, and others, explained; (3) The Circuit
Court ought to have proceeded to hear the case on the merits and the
proofs put in. White v. Rankin, 628.
Under the act of March 3, 1883, "to adjust the salaries of postmasters,"
22 Stat. 600, c. 142, a postmaster who is assigned by the Postmaster
General to the third class, at a designated salary from a designated
date, is entitled, if he performs the duties of the office, to compensa-
tion at the rate of that salary, from that date, without regard to his
appointment by the President and confirmation by the Senate. United
States v. Wilson, 24.
1. Where special findings are irreconcilable with a general verdict, the
former controls the latter. Larkin v. Upton, 19.
2. If the findings are fairly susceptible of two constructions, the one up-
holding and the other overthrowing the general verdict, the former
will be accepted as the true construction. Ib.
3. The refusal to direct a verdict for the defendant at the close of the
plaintiff's evidence, and when the defendant has not rested his case,
cannot be assigned for error. Columbia & Puget Sound Railroad Co.
v. Hawthorne, 202.
4. The giving of an erroneous instruction which was not prejudicial to the
objecting party is not reversible error. Grand Trunk Railway Co. v.
5. An objection that replications were not filed to the defendant's pleas
when the trial commenced, nor before judgment, with leave of court,
comes too late if made after entry of judgment. Keator Lumber Co.
v. Thompson, 434.
6. When a defendant is compelled to proceed with a trial in Illinois in a
case in which the issues are not made up by the filing of replications
to the pleas, and makes no objection on that ground, the failure to do
so is equivalent to consenting that the trial may proceed. Ib.
7. When the charge contains all that need be submitted to the jury on the
issues, it is no error to refuse further requests to charge. Hartford
Life Insurance Co. v. Unsell, 439.
8. If, in a case where the evidence warrants a request for a peremptory
instruction to find for the defendant, no request for such instruction
was made, it cannot be made a ground of reversal that the issues of
fact were submitted to the jury. lb.
9. On a petition for a rehearing the court vacates the judgment ordered in
this case (ante, 189) and reverses the judgment and remands the
cause for further proceedings not inconsistent with this opinion.
Brenham v. German American Bank (No. 2), 549.
10. Money, the proceeds of a note, was deposited to the credit of a suit in
equity in a Circuit Court, in a Safe Deposit Company. G. brought
another suit in equity in the same court, against the company and P.
to obtain a decree declaring him to be entitled to the money. The
Circuit Court dismissed the bill on the ground that the question ought
to be adjudicated in the first named suit, but did not decree that the
dismissal was without prejudice to the right of G. to make his claim
in that suit. This court, on appeal by G., modified the decree to that
effect, but gave the costs of this court to the appellees. Gregory v.
Boston Safe Deposit and Trust Co., 667.
See APPEAL;
ASSIGNMENT OF ERROR;
EXCEPTION;
JURISDICTION, A, 12;
LOCAL LAW, 1.
1. A promissory note payable to the order of the maker, being endorsed by
him was endorsed and delivered to another for his accommodation.
The latter endorsed it and borrowed money upon it, waiving demand
and protest. The waiver was stamped upon the back of the note by
mistake over both endorsements. Held, that the liability of the maker
was not affected thereby. Jordan v. Third National Bank of Chatta-
nooga, 97.
2. The evidence in this case does not tend to show a contract of extension
for a valid consideration, and for a definite and certain time, binding
upon the parties, and changing the nature of the contract to the preju-
dice of the maker of the note. Ib.
valuable chiefly for timber, but unfit for culti-
vation," within the meaning of the timber and stone act of June 3,
1878, 20 Stat. 89, c. 151, include lands covered with timber, but which
may be made fit for cultivation by removing the timber and working
the lands. United States v. Budd, 154.
2. B. entered a quarter section of timber land in Washington under the
act of June 3, 1878, 20 Stat. 89, c. 151, and after receiving a patent for
it transferred it to M. M. purchased quite a number of lots of timber
lands in that vicinity, the title to 21 of which was obtained from the
government within a year by various parties, but with the same two
witnesses in each case, the deeds to M. reciting only a nominal consid-
eration. These purchases were made shortly after, or in some cases
immediately before, the payment to the government. B. and M. were
both residents of Portland, Oregon. One of the two witnesses to the
application was examining the lands in that vicinity and reporting to
M. Held, (1) That all that the act of June 3, 1878, denounces is a
prior agreement by which the patentee acts for another in the pur-
chase; (2) That M. might rightfully go or send into that vicinity, and
make known generally, or to individuals, a willingness to buy timber
land at a price in excess of that which it would cost to obtain it from
the government; and that a person knowing of that offer might right-
fully go to the land office and purchase a timber lot from the govern-
ment, and transfer it to M. for the stated excess, without violating the
act of June 3, 1878. Ib.
QUIET TITLE.
See ADVERSE POSSESSION.
See CONSTITUTIONAL LAW, 1.
1. The running of a railroad train within the limits of a city at a greater
speed than is permitted by the city ordinances, is a circumstance from
which negligence may be inferred in case an injury is inflicted upon
a person by the train. Grand Trunk Railway Co. v. Ives, 408.
2. Whether ordinary care or reasonable prudence requires a railroad com-
pany to keep a flagman stationed at a crossing that is especially dan-
gerous is a question of fact for a jury; although in some cases it has
been held to be a question of law for the court. Ib.
3. Where the statutes of a State make provisions in regard to flagmen at
crossings, this court will follow the construction given to such statutes
by its courts; and, so following the decisions of the courts of the
State of Michigan, it is held that the duty to provide flagmen or gates,
or other adequate warnings or appliances, may exist outside of the
statute if the situation of the crossing reasonably requires it. Ib.
See JURISDICTION, A, 10;
RECEIVER.
See EQUITY, 2;
JURISDICTION, C, 4.
1. A suit in a state court for partition of land cannot be removed into the
Circuit Court of the United States under the act of March 3, 1875, c.
137, § 2, by reason of a controversy between the plaintiff and a citizen
of another State, intervening and claiming whatever may be set off to
the plaintiff. Torrence v. Shedd, 527.
2. When, on appeal from a decree of the Circuit Court of the United States
upon the merits, it appears that the case had been wrongfully removed
from a state court on petition of the appellant, the decree should be
reversed for want of jurisdiction, and the case remanded to the Cir-
cuit Court, with directions to remand it to the state court, and with
costs against him in this court and in the Circuit Court. Ib.
3. On the authority of Stevens v. Nichols, 130 U. S. 230, Jackson v. Allen,
132 U. S. 27, and La Confiance Compagnie v. Hall, 137 U. S. 61, the
decree below in this case is reversed and the cause remanded with
directions to remand it to the Circuit Court, it not appearing in the
record that the diverse citizenship which was the cause of removal
from the state court existed at the commencement of the action.
Kellam v. Keith, 568.
4. In such case the appellees are entitled to their costs in this court and
in the Circuit Court.
A. OF THE HOUSE OF REPRESENTATIVES.
See CONSTITUTIONAL LAW, A, 1.
B. OF THE SUPREME COURT.
Rule 21. See MASTER IN CHANCERY, 1.
Rule 67. See APPENDIX.
Service of citation by a plaintiff in error upon the defendant in error by
depositing in the post-office a copy of the same, postage paid, addressed
to the attorney of the defendant in error at his place of abode, is an
insufficient service. Tripp v. Santa Rosa Street Railroad Co., 126.
A. CONSTRUCTION OF STATUTES.
1. The statute of the State of South Carolina, passed March 28, 1876, (acts
of 1875-6, p. 198,) is capable of being construed either, when taken
by itself, as conferring upon the Coosaw Mining Company the exclu-
sive right of digging, mining and removing phosphate rocks for an
unlimited period, so long as it should comply with the terms of the
statute, or, when taken in connection with the act of March 1, 1870,
14 Gen. Stats. So. Car. 381, as conferring such a right only for "the
full term of 21 years" named in the latter act; and as the interpre-
tation should be adopted which is most favorable to the State, it is
Held, that such exclusive right expired on the termination of the
21 years named in the act of 1870. Coosaw Mining Co. v. South
Carolina, 550.
2. Only that which is granted in clear and explicit terms passes by a legis-
lative grant of property, franchises or privileges in which the govern-
ment or the public has an interest. Ib.
B. STATUTES OF THE UNITED STATES.
CHINESE RESTRICTION ACT;
CONSTITUTIONAL LAW, A, 2;
COPYRIGHT, 5, 8;
CRIMINAL LAW, 1, 2, 5, 6;
CUSTOMS DUTIES, 1 to 8;
EXECUTIVE REGULATION;
JUDGMENT;
JURISDICTION, A, 12, 13, 17; B, 1, 2;
C, 2;
POSTMASTER;
PUBLIC LAND, 1, 2;
REMOVAL OF Causes, 1.
STATUTE C, District of Columbia.
M. gave to a bank a mortgage on land owned by him to secure paper
which the bank might discount. Among the paper so discounted was
a note made by J., which M. had discounted, and which J. paid to the
bank. The note had been given for a certificate of deposit which J.
afterwards endorsed, and subsequently paid. J. claimed subrogation
under the mortgage to the rights of the bank as respected the certifi-
cate of deposit: Held, that the claim could not be allowed; that the
payment of the note to the bank by J. discharged the mortgage, so far
as it had a security for the note: and that the certificate of deposit was
not secured by the mortgage. Underwood v. Metropolitan National
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