ments he makes to the one first designated are at his own peril and liability to account to the other heir after his claim has been estab- lished for his proportionate share, and the debtor is not protected by a decree and order of the court directing payment to the assignee of the heir originally designated in a proceeding to which such asserting heir was not a party. Where the payment to the heir originally designated is made before the debt is due and after the other heir has asserted his claim, and under circumstances indicating collusion, it is for the jury to determine whether the payment was made in good faith and with- out knowledge of the rights of the asserting heir. Sixto v. Sarria, 175.
South Carolina. Issuance of evidences of state indebtedness forbidden by constitution. Article IX, § 10, of the constitution of South Carolina of 1868, forbidding, except as specially authorized in the constitution, the issue of scrip or other evidence of state indebtedness except for the redemption of existing indebtedness of the State, forbade the issue of scrip under an act passed in 1872 to take up the State's guaranty of rail- road bonds under an act passed in 1868 subsequent to the ratification of the constitution, notwithstanding that acts had been passed in 1852 and 1854 authorizing such guaranty. it appearing that the guaranty had not actually been endorsed on the bonds prior to the ratification of the constitution and that the act of 1868 was not an adjustment of an old debt but the granting of new aid to the railroad and the au- thorizing of an original issue of bonds. Lee v. Robinson, 64.
LOCUS CRIMINIS.
See CRIMINAL LAW, 2.
1. Contract for carriage; power of Postmaster General to terminate. Under the mail contract in this case, which was made in pursuance of the Postal Laws and Regulations, and after the service had materially de- creased by changed methods of transporting mail and the Postmaster General had offered the contractor, who had refused to accept it, the remaining work at a lower compensation, it was within the power of the Postmaster General to put an end to the contract by order of discontinuance, allowing one month's pay as indemnity, and to relet the remaining service; the power to terminate the contract on allowing a month's pay as indemnity was not predicated on an abandonment of the entire service. Slavens v. United States, 229.
2. Contract for carriage; changed service within. While the provisions in a similar contract that the contractor should per- form without additional compensation all new or changed service that the Postmaster General should order, might not be construed as ex- tending to services of different character and not within the terms of the contract, where the changed service is to take the mail to and from street cars, met at crossings, instead of landings and stations, it comes
within the power reserved to the Postmaster General and the con- tractor is not entitled to additional compensation therefor. Ib.
3. Contract by local postmaster not binding on Government.
In the absence of authority shown, a local postmaster has no power or au- thority to contract in respect to mail messenger service, and is not the agent of nor can he bind the Government for that purpose, and if a contractor performs services which he protests against as not being within his contract, solely on the postmaster's order, he is not entitled to extra compensation therefor after his protest has been sustained and the service let to others. Ib.
Liability, under Harter Act, for damages due to negligence in unloading cargo -Application of act to foreign vessels.
A foreign vessel from Liverpool arrived at its destination, New York, and made fast to the wharf. Owing to unusual gales and weather she was heavily weighted with snow and ice and made top heavy. While the cargo was being unloaded she suddenly rolled over and sank, damag- ing the cargo remaining in her, some of which had been shipped from points east of Liverpool on bills of lading to Liverpool, thence to be forwarded to New York, and containing certain exemptions of the carrier from liability. The owners and insurers of cargo libelled the vessel; it was found by the District Court and the Circuit Court of Appeals that the damage was due to negligence in unloading cargo and ruled that the negligence fell within section one of the Harter Act and not within section three of the same as negligence in the naviga- tion or management of the vessel. Held, that this court will not go behind the findings of the two courts as to negligence and that the rule was correct. When a case may fall under section one and sec- tion three of the Harter Act the question which section is to govern must be determined by the primary nature and object of the acts which cause the loss. Semble. The standard of conduct is external and not merely co-extensive with the judgment of the individual. The Harter Act will be applied to foreign vessels in suits brought in the United States, and where claimants set up and rely upon the act they must take the burden with the benefits and cannot claim a greater limitation of liability under provisions of bills of lading. The Germanic, 589.
Safe appliances-Increased hazard-Knowledge of employé.
An employé is entitled to assume that his employer has used due care to provide reasonably safe appliances for the doing of his work. Knowl- edge of the increased hazard resulting from the negligent location in dangerous proximity to a railroad track of a structure will not be imputed to an employé, using ordinary diligence to avoid it if properly located, because he was aware of its existence and general location. It is for the jury to determine from all the evidence whether he had
actual knowledge of the danger. Texas & Pacific Ry. Co. v. Swearin- gen, 51.
Adverse proceeding by owner of tunnel against patentee of lode claim held not
As between the Government and the locator, it is not a vital fact that there was a discovery of mineral in a lode claim before the commencement of any of the steps required to perfect a location, and by accepting the entry, and confirming it by a patent, the Government does not deter- mine as to the order of proceedings prior to the entry but only that all required by law had been taken. Adverse proceedings, are called for only when one mineral claimant contests the right of another mineral claimant, and, as a tunnel is not a mining claim but only a means of exploration, the owner, prior to discovery of a lode or vein within the tunnel, is not bound to adverse the application for the patent of a lode claim, the lode of which was discovered on the surface; and his omis- sion to do so does not preclude him from asserting a right prior to the date of discovery named in the certificate of location on which the patent for the surface lode claim is based. Mining Company v. Tunnel Company, 337.
MINES AND MINING.
See MINING CLAIMS; PUBLIC LANDs, 3.
See COMBINATIONS IN RESTRAINT OF TRADE.
Analogous nature of chattel mortgage and deed of trust.
A deed of trust and a chattel mortgage with power of sale are practically one and the same instrument as understood in the District of Columbia. Hunt v. Springfield F. & M. Ins. Co., 47.
See BANKRUPTCY, 5; FEDERAL QUESTION, 2.
1. Defined as creature of the State.
The city is the creature of the State. A municipal corporation is simply a political subdivision of the State existing by virtue of the exercise of the power of the State through its legislative department. Wor- cester v. Street Ry. Co., 539.
2. Property rights of Obligation of street railways to repair streets. While a municipal corporation may own property not of a public or govern- mental nature which is entitled to constitutional protection, the ob- ligation of a railroad company to pave and repair streets occupied by VOL. CXCVI-43
it based on accepted conditions of a municipal ordinance granting rights of location is not private property beyond legislative control. Ib. See STREETS AND HIGHWAYS.
Usurious interest-Payment within meaning of section 5198, Rev. Stat. The payment referred to in § 5198, Rev. Stat., is an actual payment and not a further promise to pay and the mere discharge of the maker of a note by his giving his own note in renewal thereof will not uphold a recovery against the bank on account of usurious interest in the former note. First National Bank v. Lasater, 115.
Sea duty and shore duty-Construction of sections 1556, 1571, Rev. Stat., and naval regulations.
The Navy Department has no power to disregard the provisions of Rev. Stat. §§ 1556, 1571, and Pars. 1154, 1168 naval regulations, and either deprive an officer of sea pay by assigning him to a duty mistakenly qualified as shore duty but which is in law sea duty, or to entitle him to receive sea pay by assigning him to duty which is essentially shore duty and mistakenly qualifying it as sea duty. Where, however, the assignment of an officer to duty by the Navy Department expressly imposes upon him the continued discharge of his sea duties and qualifies the shore duty as merely temporary and ancillary to the regular sea duty, the presumption is that the shore duty is temporary and does not operate to interfere with or discharge the officer from the responsi- bilities of the sea duties to which he is regularly assigned and he is entitled to sea pay during the time of such temporary shore duty. United States v. Engard, 511.
Pay for services peculiar to army not within operation of-Pay to which lieutenant, acting as aid to rear-admiral, is entitled.
The Navy Personnel Act undertook to equalize the pay of naval officers with those officers of the Army of equal rank as to duties properly required of a naval officer, and it has no operation to provide pay for services peculiar to the Army. A lieutenant in the Navy serving as aid to a rear-admiral is entitled to the additional two hundred dollars allowed to a lieutenant serving as aid to a major-general under § 1261, Rev. Stat., but he is not entitled to the mounted pay allowed to the army lieutenant serving as such aid under § 1301, Army Regulations. United States v. Crosley, 327.
MASTER AND SERVANT; MARITIME LAW; STREETS AND HIGHWAYS.
NINETY-FOURTH RULE.
See JURISDICTION, B 2.
In an action for mandamus against a judge of a territorial court in New Mexico, who, after the appeal, ceased to be judge and whose successor has consented that the action be revived against him, this court may, under the act of Congress of February 8, 1899, if in its judgment ne- cessity exists for such action in order to obtain a settlement of the legal questions involved, substitute the name of the successor in place of the original appellee. In this case this court orders the substitution, the party substituted not to be liable for any costs prior hereto. Cale- donian Coal Co. v. Baker, 432.
PAYMENT.
See LOCAL LAW (P. R.); NATIONAL BANKS.
Construction of bill in equity.
A bill in equity, and the demurrer thereto, are neither of them to be read and construed strictly as an indictment but are to be taken to mean what they fairly convey to a dispassionate reader by a fairly exact use of English speech. Swift and Company v. United States, 375.
See REMOVAL OF CAUSES, 1.
POLICE POWER.
See INTERSTATE COMMERCE, 5; STATES, 1, 2, 4.
PORTO RICO.
See LOCAL LAW (P. R.).
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