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. See APPEAL.
1. The finding, in a suit to quiet title, that the plaintiff and her grantees had been in continued possession of the premises from a given day is the finding of an ultimate fact, and the sufficiency of the evidence to support it cannot be considered on appeal. Smith v. Gale, 509.
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. Ib.
3. A possession, to be adverse, must be open, visible, continuous and exclusive, with a claim of ownership, such as will notify 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, §§ 22, 23,) for further proceedings according to law. The Blue Jacket, 371. See JURISDICTION, A, 13.
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, 209.
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.
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, 254. 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, 371.
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).
CASES OVERRULED.
See MUNICIPAL BOND, 3.
CERTIORARI.
See SERVICE OF PROCESS.
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 reenter 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.
COMMON CARRIER.
See JURISDICTION, A, 10;
NEGLIGENCE;
RAILROAD.
CONSPIRACY.
See CONSTITUTIONAL LAW, 2; EVIDENCE, 2.
1. The provision in Rule XV. of the House of Representatives of the fifty- first Congress, that "on the demand of any member, or at the sug- gestion of the Speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in
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 offence 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, 263.
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 (2%) 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. Ib.
See PATENT FOR INVENTION, 3.
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