ularity, whereby the government may be entrapped into making alle-
gations which it would be impossible to prove.
States, 584.
14. Applying this rule, the eighth count in the indictment, charging the
prisoner with unlawfully procuring the surrender and delivery to
himself of the funds of a national bank of which he was a director,
and the fourteenth count, charging him with knowingly and fraudu-
lently aiding in procuring the discount of unsecured paper by the
bank, are examined in detail, and are held to be sufficient to sustain
the conviction. Ib.
15. A verdict of guilty, entered upon all the counts of an indictment,
should stand if any one of them is good. Ib.
16. A warrant issued by a commissioner of a court of the United States is
not void for the want of a seal, the commissioner having no seal, and
not being required by statute to affix one to warrants issued by him.
Starr v. United States, 614.
17. The same result is reached under the laws of Arkansas, which pre-
scribed the form of warrant as attested under hand, but not under
seal. Ib.
18. The settled rule that where a person having authority to arrest, and
using the proper means for that purpose is resisted, he can repel force
with force, and, if the party making the resistance is unavoidably
killed, the homicide is justifiable, may be invoked by a person who
resists and kills the officer if he was ignorant of the fact that he was
an officer; and, when such a defence is set up to an indictment for
murder, it is error to charge the jury that, if the threatening or vio-
lent conduct of the prisoner prevented the officer from giving notice
of his official character, he would not be required to give notice.
Ib.
19. The possession of a conscience void of offence towards God and man
is not an indispensable prerequisite to justification of action in the
face of imminent and deadly peril, nor does the intrinsic rightfulness
of the occupation or situation of a party, having in itself no bearing
upon or connection with an assault, impose a limitation upon the right
to repel it. Ib.
20. The motive of a person, accused of murdering an officer trying to ar-
rest him, in being where he was at the time of the killing, has nothing
to do with the question of his right of self-defence in itself, and his
previous unlawful conduct should form no element in the solution of
that question, except as it throws light on his belief that his arrest
was sought by the officer. 16.
See CONSTITUTIONAL LAW, 20, 21;
CRIMINAL PROCESS.
A warrant of a commissioner of a Circuit Court of the United States, com-
manding the arrest of a person of a certain name, not otherwise desig-
nating or describing him, upon a charge of murder, will not justify
the arrest of a person who has never been known or called by that
name, notwithstanding the commissioner testifies that he was the
person intended.
West v. Cabell, 78.
1. The purchaser of an imported article in bond, pending an appeal from
the assessment of duties upon it which is subsequently overruled, can,
on paying the duties as assessed, maintain an action in his own name
against the collector to recover an excess in the payment exacted.
Seeberger v. Castro, 32.
2. Tobacco scrap, consisting of "clippings from the ends of cigars and
pieces broken from the tobacco, of which cigars are manufactured in
the process of such manufacture,” “not being fit for any use in the
condition in which the same are imported, and their only use being
to be manufactured into cigarettes and smoking tobacco," was, under
the tariff act of March 3, 1883, c. 121, subject to a duty of 30 per
cent ad valorem as unmanufactured tobacco, and not to a duty of
40 cents per pound as manufactured tobacco. Ib.
3. The action of a collector of customs under § 2 of the act of June 10,
1890, c. 407, 26 Stat. 131, in estimating the value of paper florins of
Austria-Hungary, in which the value of imported merchandise is ex-
pressed in the invoices, and converting them into the currency of the
United States, is not the subject of appeal to and reversal by the
board of general appraisers. United States v. Klingenberg, 93.
4. A Circuit Court of the United States has jurisdiction to review the
action of a board of general appraisers in entertaining such an appeal,
and in reversing the action of a collector in that respect. Ib.
5. Saccharine, imported into the United States in 1887, was not entitled
to free entry as an acid. Lutz v. Magone, 105.
6. Whether Boonekamp bitters, imported in September, 1889, were so
similar to absinthe as to be susceptible of being assessed under the
clause applicable to it, was a question of fact properly left to the jury.
Erhardt v. Steinhardt, 177.
7. The jury having determined that fact adversely to the government,
it follows that such bitters were at that time to be classified under
the proprietary preparation clause of Schedule A of the act of March
3, 1883, c. 121, 22 Stat. 488, 494. Ib.
8. The rate of duty on the bottles was dependent upon the rate of duty
on the contents. lb.
9. The words "date of original importation," as used in Rev. Stat. § 2970,
refer to the exterior port of first arrival of the merchandise, and not
to the interior port of destination. Seeberger v. Schweyer, 609.
1. The fact that a railroad company is held liable for damages suffered
by a person by reason of the occupation of a public street in a city in
front of his premises by an elevated track furnishes no ground for
holding it liable to an owner on the other side of the same street but
in a different part of it, by reason of the construction of a similar
elevated track opposite to him but not on the public street. Marchant
v. Pennsylvania Railroad Co., 380.
2. The construction of an elevated railroad, under laws of the State, on
private land abutting on a public street in a city, gives to the owner
of land on the opposite side of the street no claim to recover conse-
quential damages for injury inflicted upon him thereby. 1b.
3. When a person from whom an internal revenue tax has been illegally
exacted accepts from the government, without objection, the payment
of the sum thus illegally exacted, he thereby gives up his right to sue
for interest as incidental damages. Stewart v. Barnes, 456.
Dividends can rightfully be paid only out of profits; profits are measured
by the amount of net earnings; and net earnings are what remain
after maintaining the property and paying the interest upon its debts.
Mobile & Ohio Railroad Company v. Tennessee, 486.
1. One who holds possession of real estate as manager for or under
another cannot, when sued in ejectment by his principal, dispute the
principal's title. Seymour v. Slide & Spur Gold Mines, 523.
2. When such agent admits the relation and the title of his principal,
there is no impropriety in the court's directing a verdict for the
plaintiff. lb.
See STATUTE, A, 1, 2;
TAX AND TAXATION, 1, 3.
1. A defendant who proceeds to introduce testimony, after denial of his
motion for a verdict in his favor on the close of the plaintiff's evi-
dence in chief, thereby waives his exception to that denial. Wilson v.
Haley Live Stock Co., 39.
2. Where a cause of action is not proven, not merely in some particular,
but in its entire scope and meaning, the courts treat it, not as a case
of variance merely, but as an entire failure of proof. Ib.
3. A report of the names of Indians and half-breeds entitled to partici-
pate in an allotment of land, made under the act of July 31, 1854, 10
Stat. 315, to the Indian bureau under instructions to report in full a
list of all applicants, showing names, age, sex, etc., is not admissible
in evidence in an action between two parties, each of whom claims
under the same person and the same allotment, in order to show the
age of that person at the time of the allotment. Hegler v. Faulkner,
109.
4. The rejection of evidence immaterial to the result did not constitute
reversible error. Runkle v. Burnham, 216.
5. A witness may be asked as to the relations of the parties at the time
of the execution of a written power of attorney, although his answers
may have a bearing upon their obligations arising under a written
contract made under the power. Ib.
6. Findings of fact made by the court below are binding here when
there is any evidence to support them. Ib.
7. A defendant who, after denial of his motion for a nonsuit made at the
close of plaintiff's evidence in chief, offers evidence in his own
behalf, thereby waives his motion and an exception to the denial of
it. Ib.
8. A letter of a party to the suit bearing upon the issues introduced in
evidence against him, may be explained by him as a witness in his
own behalf, and its effect upon the issues and the force of the expla-
nation are proper subjects for the consideration of the jury. Anvil
Mining Co. v. Humble, 540.
9. By the terms of the contract in this case the amount due the plaintiffs
from time to time was to be determined by the weigh-bills, which were
in the possession of the defendant's bookkeeper. The plaintiff ap-
plied to the bookkeeper for information on this point, and received
a reply. Held, that that was competent evidence on that point. Ib.
See PROMISSORY NOTE.
EXCEPTION.
See EVIDENCE, 6.
1. A district attorney, whose place of abode is at a distance from the
place at which court is held, is not entitled to mileage for travel in
going to his home every Saturday, and in returning to the place of
holding court the following Monday morning, during the continuous
session of the court. United States v. Shields, 88.
2. Fees allowed to public officers depend upon the provisions of the
statute granting them, and are not open to equitable construction by
the courts or discretionary action on the part of officials. Ib.
FINDING OF FACT.
See EVIDENCE, 6.
Under a writ of habeas corpus the inquiry is not addressed to errors, but to
the question whether the proceedings and judgment are nullities; and
unless it appears that the judgment or sentence under which the pris-
oner is confined is void, he is not entitled to his discharge. United
States v. Pridgeon, 48.
See CRIMINAL LAW, 2, 7, 9 to 15.
INTEREST.
See DAMAGES, 3.
A. JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES.
1. On a writ of mandamus in behalf of a State to the Commissioner of
Patents to register, under the act of March 3, 1881, c. 138, a trade-
mark used by the State on intoxicating liquors in commerce with a
foreign nation, and which the Commissioner of Patents has refused
to register, on the ground that the State by its own laws had no author-
ized trade in liquors outside of its limits, the validity of an authority
exercised under the United States is not drawn in question; and
therefore, in the absence of evidence of the value of the registra-
tion, a judgment of the Court of Appeals of the District of Columbia,
denying the writ of mandamus, cannot be reviewed by this court on
writ of error, under the act of February 9, 1893, c. 74, § 8.
Carolina v. Seymour, 353.
2. This court has no jurisdiction over an appeal from the judgment of a
Circuit Court denying the application of counsel for a solicitor's allow-
ance out of a fund realized from a sale made under direction of that
court in execution of a mandate of this court, the appeal being taken
after July 1, 1891, and not being taken under the provisions of
section 5 of the Judiciary Act of March 3, 1891, c. 517. Mason v.
Pewabic Mining Co., 361.
3. This court has jurisdiction to revise the judgment of the Supreme
Court of Tennessee in this case, deciding that the provision in the
eleventh section of the Tennessee charter of the Mobile and Ohio
Railroad Company that no tax shall ever be laid on said road or its
fixtures which shall reduce the dividends below eight per cent does
not forbid the assessment and collection of taxes under the acts of
the legislature of Tennessee referred to in the opinion of that
court; that "the said eight per cent clause is invalid," "null and
void," and that the said legislation "does not violate or impair the
obligation of any contract with the Mobile and Ohio Company."
Mobile & Ohio Railroad Co. v. Tennessee, 486.
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