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See Public LANDS, 5, 8.





REMOVAL OF Causes, 1;

See WILLS, 3.

1. Instruction on failure to agree; impropriety of inquiry as to proportion of

When a jury is brought before the court because unable to agree, it is not

material for the court in order to instruct it as to its duty and the pro
priety of agreeing to understand the proportion of division of opinion,
and the proper administration of the law does not require or permit
such a question on the part of the presiding judge. Burton v. United
States, 283.

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2. Rights of defendant as to statement of prayers granted.
Certain of defendant's requests to charge which were allowed were referred

to as mere abstract propositions of law and not otherwise specifically
charged; after having been out thirty-eight hours the jurors returned
and were instructed by the court in relation to their duty as jurors,
and the foreman having stated in answer to questions of the court
that they stood eleven to one, the court charged that it was their duty
to agree if possible. Counsel then asked the court to instruct that
defendant's requests to charge which had been allowed were as much
a part of the charge as that which emanated from the court. This
was refused. Held error, and, under the circumstances of this case,
it was a matter of right, and not of discretion, that the jury should be
charged as to the character of the requests. Ib.

See Wills, 3.


Construction of policy--Contract of insurance a personal one.
A policy of insurance provided that it should be void if the interest of the

insured was other than the unconditional and sole ownership or if the
property were encumbered by a chattel mortgage. It was in fact
subject to certain trust deeds which the insured claimed after loss
were different instruments in law. Held, that a deed of trust and a
chattel mortgage with power of sale are practically one and the same
instruments as understood in the District of Columbia. The rule that
in case of attempted forfeiture if the policy be fairly susceptible of
two constructions the one will be adopted which is more favorable to
the insured was inapplicable to this case. The contract of an insurance
company is a personal one with the assured and it is not bound to
accept any other person to whom the latter may transfer the property.
Hunt v. Springfield F. & M. Ins. Co., 47.


1. Freedom of contract concerning.
Bowman v. Chicago, 125 U. S. 465, Leisy v. Hardin, 135 U. S. 100, Rhodes

v. Iowa, 170 U. S. 412, Vance v. Vandercook Co. No. 1, 170 U. S. 438,
rest on the broad principle of the freedom of commerce between the
States, or the right of citizens of one State to freely contract to receive
and send merchandise from and to another State, and on the want of
power of one State to destroy contracts concerning interstate com-
merce valid in the States where made. The right of the parties thereto
to make a contract, valid in the State where made, for the sale and
purchase of merchandise and in so doing to fix the time when, and
conditions on which, completed title shall pass is beyond question.

American Express Co. v. Iowa, 133.
2. Original package; term defined.
The term original package is not defined by statu and while it may be

impossible to judicially determine its size or shape, under the principle
upon which its exemption while an article of interstate commerce is
founded, the term does not include packages which cannot be com-
mercially transported from one State to another. Cook v. Marshall
County, 261.

3. Original package; cigarette boxes held not to be.
This court adheres to its decision in Austin v. Tennessee, 179 U. S. 343, that

small pasteboard boxes each containing ten cigarettes, and sealed and
stamped with the revenue stamp, whether shipped in a basket or loosely,
not boxed, baled or attached together, and not separately or otherwise
addressed but for which the express company has given a receipt and
agreement to deliver them to a person named therein in another State,
are not original packages and are not protected under the commerce
clause of the Federal Constitution from regulation by the police power
of the State. Ib.

4. Shipment of intoxicating liquors C. 0. D.; seizure under state laws prior

to delivery.
Without passing on the questions whether the property in a C. O. D. ship-

ment is at the risk of buyer or seller and when the sale is completed, a
package of intoxicating liquor received by an express company in one
State to be carried to another State, and there delivered to the con-
signee C. 0. D. for price of the package and the expressage, is inter-
state commerce and is under the protection of the commerce clause
of the Federal Constitution and cannot, prior to its actual delivery
to the consignee, be confiscated under prohibitory liquor laws of the
State. American Express Co. v. Iowa, 133; Adams Express Co. v.
Iowa, 147.


5. Unusual method of transportation for evasion of police laws of State -

Commerce clause of Constitution not invokable as a cover for fraudulent

While a perfectly lawful act may not be impugned by the fact that the

person doing it was impelled thereto by a bad motive, where the law-
fulness or unlawfulness of the act is made an issue, the intent of the
actor may be material in characterizing the transaction, and where
a party, in transporting goods from one State to another, selects an
unusual method for the express purpose of evading or defying the
police laws of the latter State the commerce clause of the Federal
Constitution cannot be invoked as a cover for fraudulent dealing.
Cook v. Marshall County, 261.









A. OF This Court.
1. Certificate from Circuit Court-Question of jurisdiction to be certified.
Under $ 5 of the judiciary act of March 3, 1891, the question of jurisdiction

to be certified is the jurisdiction of the Circuit Court as a court of the
United States and not in respect of its general authority as a judicial

tribunal. The certificate of the lower court is an absolute prerequisite
to the exercise of power here unless the record clearly and unequiv-
ocally shows that the court sends up for consideration the single and
definite question of its jurisdiction as a court of the United States.
Courtney v. Pradt, 89.

2. Direct appeal from District Court sitting in bankruptcy.
The bankruptcy court has jurisdiction to determine on a claim asserted by

the bankrupt whether property in the hands of the trustee is exempt;
and while an erroneous decision against the asserted right may be
corrected in the appropriate mode for the correction of errors, the
jurisdiction of the court is not in issue within the meaning of the act
of March 3, 1891, and a direct appeal to this court will not lie. Lucius
v. Cawthon-Coleman Co., 149.

3. To review decisions of state courtsProper reservation of Federal question.
This court has no general power to review or correct the decisions of the

highest state court and in cases of this kind exercises a statutory juris-
diction to protect alleged violations, in state decisions, of certain rights
arising under Federal authority; and if the question is not properly
reserved in the state court the deficiency cannot be supplied in either
the petition for rehearing after judgment or the assignment of errors
in this court, or by the certification of the briefs which are not a part
of the record by the clerk of the state Supreme Court. This court will
not reverse the judgment of a state court holding an alleged Federal
constitutional objection waived, where the record discloses that no
authority was cited or argument advanced in its support and it is clear
that the decision was based upon other than Federal grounds and the
constitutional question was not decided. Harding v. Illinois, 78.

4. Review of final judgment of Supreme Court of Oklahoma.
Under $ 9, act of May 2, 1890, 26 Stat. 81, c. 182, final judgments of the

Supreme Court of the Territory of Oklahoma in actions at law can
only be revised by this court as are judgments of the Circuit Courts
of the United States in similar actions-by writ of error and not by
appeal. Comstock v. Eagleton, 99.

5. Where Federal question properly invoked, although verdict and judgment

below rendered according to law.
Although when the charge of the state court is not before this court, and

the record contains no exception to any part of it, the verdict and
judgment must be held to have been rendered according to law, never-
theless, if a provision of the Federal Constitution was properly in-
voked the motion to dismiss may be denied. Hamburg American
Steamship Co. v. Grube, 407.

6. Writ of error to District Court-Review not restricted to constitutional

Whether a Senator of the United States has waived his privilege from

arrest and whether such privilege is personal only or given for the
purpose of always securing a representation of his State in the Senate
are not frivolous questions; and, if properly raised in the court below
and denied, this court has jurisdiction to issue the writ of error directly
to the District Court, and then to decide the case without being re-
stricted to the constitutional question. It is not the habit of this
court to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case. Burton v. United States, 283.



OF Circuit COURT OF APPEALS (see Bankruptcy, 2).


1. Amount in controversy-Jurisdiction in action to remove cloud on title.
Complainants, who were heirs at law of an intestate leaving real estate the

undivided interest of each being valued at over $2.000, and situated
within the jurisdiction of the court, filed their bill in the proper Cir-
cuit Court of the United States against proper parties, citizens of other
States, alleging that defendants had combined to procure and had
fraudulently procured orders of the probate court allowing their claims
against one of the heirs at law as claims against the intestate whereby
such claims became liens upon the intestate's real estate; the claim
of each defendant was less that $2,000 but the aggregate amount
exceeded $2,000. So far as the allegations of the bill were concerned
if any one of the claims was good all were good and the prosecution of
one could not be enjoined unless all were enjoined. The bill prayed
that the cloud on title of the intestate's real estate be removed by
declaring the claims invalid and enjoining proceedings under the
judgments of the probate court. The defendants were proceeded
against under the act of March 3, 1875, 18 Stat. 470. The Circuit
Court dismissed the bill for want of jurisdiction. Held error and that
it was competent for the Circuit Court upon the case made by the bill
to deprive defendants acting in combination of the benefit of the orders
made in the probate court allowing their respective claims. In this
case the jurisdiction of the Circuit Court does not depend, within the
judiciary act of 1887, 1888, on the value of complainants' interest in
the real estate from which the cloud is sought to be removed but on
the aggregate amount of the liens of all of the defendants' claims which
had been allowed by the probate court against the intestate's estate

pursuant to the alleged combination. McDaniel v. Traylor, 415.
2. Of suit by stockholder against corporation.
The presumption of law that stockholders are deemed to be citizens of the

State of the corporation's domicil must give way to the actual fact
proved that complainant is a citizen of a different State from the cor-
poration, and in such a case the stockholder, if other conditions of juris-
diction exist can bring his suit against the corporation in the Circuit
court of the United States. The ninety-fourth rule contemplates that


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