sideration therefor to A. in a year, if the suit should be determined in
favor of A. in that time, and if not then determined, to pay the pur-
chase money into court in the action of A. against B. By the same
agreement the property was mortgaged by C. to A. to secure its per-
formance. The money not having been paid into court under the last
agreement, A. brought a suit to foreclose the mortgage, in which it was
alleged that the action by A. against B. was still pending and undeter-
mined, and that C. had not paid the amount into court, and by which
was prayed a decree for such payment and for foreclosure and sale.
The defendant demurred, and, the demurrer being overruled, answered,
setting up an alleged fraudulent conspiracy, whereby the most valu-
able parts of the lands agreed to be conveyed by A. to C. had been
omitted from the deeds. The answer also set up that C. had commenced
a suit against A. to compel a reformation of the deed, in which a de-
cree for reformation had been made below, and that the suit was pend-
ing in this court on appeal. Issue being taken on this answer, it was
decreed that A. was entitled to have the amount of the mortgage debt,
with interest, paid into court in the suit between A. and B., and for a
decree of foreclosure. This decree, on appeal to the Supreme Court of
the Territory, was modified by allowing thirty days for the payment
of the money before advertising the property for sale, and by providing
that the money should be paid into court in the foreclosure suit, in-
stead of in the action of A. against B., until an order could be obtained
in that case for the deposit of the money. Held, that in all this there
was no error. Crescent Mining Co. v. Wasatch Mining Co., 317.
See MASTER IN CHANCERY.
1. A Cherokee Indian being indicted in the Circuit Court of the United
States for the Western District of Arkansas for the murder of a white
man, it was set up in defence that the murdered man was also an In-
dian, and that the court was therefore without jurisdiction. The evi-
dence for the defence showed that the murdered man was generally
recognized as an Indian, that his reputed father was so recognized,
and that he himself was enrolled, and had participated in the payment
of bread money to the Cherokees. To offset this, the government
showed that he had not been permitted to vote at a Cherokee election,
but it also appeared that he had not been in the district long enough
to vote. Held, (1) That the burden was on the prosecution to prove
that he was a white man; (2) That the testimony offered by the gov-
ernment had no legitimate tendency to prove that the murdered man
was not an Indian. Famous Smith v. United States, 50.
2. In an action against a railroad company by one of several workmen em-
ployed by another corporation in unloading a railroad car, for personal
injuries sustained by being thrown off the car by the running of an
engine and other cars against it, testimony of another of the workmen
that they were busy at their work, and did not think of the approach
of the engine until it struck the car, is competent evidence for the
plaintiff upon the issue of contributory negligence on his part. Texas
& Pacific Railway Co. v. Volk, 73.
3. In an action for personal injuries, brought against a railroad company
by a workman in the employ of another corporation, testimony that
after his injuries his employer "just kept him on, seeing he got hurt,
so he could make a living for his wife and family," is competent evi-
dence upon the question how far his capacity of earning a livelihood
was impaired by his injuries. lb.
4. This court is not committed to the general doctrine that written memo-
randa of subjects and events, pertinent to the issues in a case, made
cotemporaneously with their taking place, and supported by the oath
of the person making them, are admissible in evidence for any other
purpose than to refresh the memory of that person as a witness. Bates
v. Preble, 149.
5. When it does not appear that such a memorandum was made cotempo-
raneously with the happening of the events which it describes, it should
not be submitted to the jury. Ib.
6. If such a memorandum, made in a book containing other matter relat-
ing to the issues which is not proper for submission to the jury, be
admitted in evidence, the leaves containing the inadmissible matter
should not go before the jury. Ib.
7. In such case it is not enough to direct the jury to take no notice of the
objectionable matter, but the leaves containing it should be sealed up
and protected from inspection by the jury before the book goes into
the conference room. Ib.
8. The genuineness of disputed handwriting cannot, as a general rule, be
determined by comparing it with other handwriting of the party.
Hickory v. United States, 303.
9. Å writing specially prepared for purpose of comparison is not admis-
10. If a paper, admitted to be in the handwriting of the party or to have
been subscribed by him, is in evidence for some other purpose in the
cause, the paper in question may be compared with it by the jury;
but if offered for the sole purpose of comparison, it is not admis-
sible. Ib.
11. The right of a person indicted for a capital offence to have delivered to
him, under Rev. Stat. § 1033, at least two days before the trial, a list
of the witnesses to be produced, may be waived by sitting by and lis-
tening to the testimony in chief of a witness not on such list, before
inquiring whether his name had been furnished to defendant. Ib.
12. Proof of contradictory statements by one's own witness, voluntarily
called and not a party, is in general not admissible, although the
party calling him may have been surprised by them; but he may show
that the facts were not as stated, although this may tend incidentally
to discredit the witness. Ib.
13. It is not reversible error to permit a plaintiff, suing a municipality
to recover for injuries received by reason of defects in its streets, to
prove a bill or statement of the claim which had been served on the
city council before commencement of the action. Lincoln v. Power,
14. The plaintiff in such an action may put in evidence sections of the
municipal code. Ib.
15. The requirement that an assignment of error, based upon the admis-
sion or rejection of evidence, must, in the case of a deposition, excluded
in whole or in part, state the full substance of the evidence so admitted
or rejected, does not apply where the witness testifies in person, and
where the question propounded to him is not only proper in form, but
is so framed as to clearly admit of an answer favorable to the claim or
demand of the party producing him. 1b.
16. When the court, in such a case, does not require the party, in whose
behalf the question is put, to state the facts proposed to be proved by
the answer, the rejection of the answer will be deemed error or not,
according as the question, upon its face, if proper in form, may or may
not clearly admit of an answer favorable to the party in whose behalf
it is propounded. Ib.
17. When objection is made to a question to a witness as incompetent,
irrelevant, and immaterial, and the objection is sustained, the court
may or may not, within its discretion, require the party, in whose
behalf the question is put, to state the facts proposed to be proved by
the answer. Ib.
FRAUDULENT CONVEYANCE, 3, 7;
PATENT FOR INVENTION, 3;
1. In an action for personal injuries, exceptions to rulings upon exemplary
damages become immaterial if the court afterwards withdraws the
claim for such damages from the consideration of the jury, and a ver-
dict is returned for "actual damages" only. Texas & Pacific Railway
Co. v. Volk, 73.
2. The omission of the court to instruct the jury upon a point of law aris-
ing in the case is not the subject of a bill of exceptions, unless an
instruction upon the point was requested by the excepting party. Ib.
3. Matter excepted to should be brought to the attention of the court
before the retirement of the jury. Hickory v. United States, 303.
4. When several distinct propositions are given, and the exception covers
all of them, it cannot be sustained if any one of them is correct. Ib.
See JURISDICTION, B, 6;
MASTER IN CHANCERY, 1, 4.
See CIRCUIT COURT COMMISSIONER.
1. The proofs fail to establish that the transactions complained of by the
appellant were fraudulent, as alleged. Gottlieb v. Thatcher, 271.
2. The relationship of brothers does not of and in itself cast suspicion
upon a transfer of property by one to the other, or create such a prima
facie presumption against its validity as would require the court to
hold it to be invalid without proof that there was fraud on the part
of the grantor, participated in by the grantee. Ib.
3. In an action brought in South Dakota by the assignee of the stock of
goods of an insolvent trader (who had taken the stock in satisfaction
of an alleged debt due him from the insolvent) against a sheriff who
had seized them on a writ of attachment at the suit of a creditor of
the insolvent, the defence being set up that the transfer to the plaintiff
was fraudulent and in violation of the statutes of that State, it is com-
petent for defendant to put in evidence a confidential business state-
ment by the insolvent to a commercial agency, concealing the alleged
liability to the plaintiff. Shauer v. Alterton, 607.
4. The statutes of that State, strictly construed, invalidate any transfer of
property, made with the intent, on the part of the owner, to delay or
defraud creditors, even when the grantee purchased in good faith;
and, when liberally construed, will not permit the grantee, although
taking the property in part in satisfaction of his own debt, to enjoy it
to the exclusion of other creditors, if the sale was made with intent to
delay or defraud other creditors, and if he had, at the time, either actual
notice of such intent, or knowledge of circumstances that were suffi-
cient to put a prudent person upon an inquiry that would have disclosed
its existence.
5. Such a transfer must be accompanied by an open and visible change of
possession, without which it will be void as to creditors. Ib.
6. The assignor and the assignee to the transfer being brothers, the court
may rightfully instruct the jury that this relation makes it necessary
to carefully scrutinize the facts, but that their determination must
depend upon whether the transaction was honest and bona fide. Ib.
7. An assignment of error, based upon the exclusion by the trial court of
an answer given in the deposition of a witness to a particular question,
will be disregarded by this court, if the answer or the full substance
of it is not set forth in the record in an appropriate form for exami-
nation. Ib.
1. When a person accused of crime is convicted in a court of the United
States and is sentenced by the court, under Rev. Stat. § 5356, to impris-
onment for one year and the payment of a fine, the court is without
jurisdiction to further adjudge that that imprisonment shall take place
in a state penitentiary under Rev. Stat. § 5546; and the prisoner, if
sentenced to be confined in a state penitentiary, is entitled to a writ of
habeas corpus directing his discharge from the custody of the warden
of the state penitentiary, but without prejudice to the right of the
United States to take any lawful measures to have the petitioner sen-
tenced in accordance with law upon the verdict against him. In re
Bonner, 242.
2. Where a conviction is correct, and where the error or excess of juris-
diction is the ordering the prisoner to be confined in a penitentiary
where the law does not allow the court to send him, there is no good
reason why jurisdiction of the prisoner should not be reassumed by the
court that imposed the sentence, in order that its defect may be
corrected.
3. The court discharging the prisoner in such case on habeas corpus should
delay his discharge for such reasonable time as may be necessary to
have him taken before the court where the judgment was rendered, in
order that the defects in the former judgment for want of jurisdiction,
which are the subjects of complaint, may be corrected. Ib.
HUSBAND AND WIFE.
See MARRIED WOMAN.
INSOLVENT DEBTOR.
See FRAUDULENT CONVEYANCE.
A policy of fire insurance containing a provision that it should become void
if without notice to the company and its permission endorsed thereon
"mechanics are employed in building, altering, or repairing" the
insured premises, becomes void by the employment of mechanics in
so building, altering, or repairing; and the insurer is not responsible
to the assured for damage and injury to the assured premises there-
after by fire, although not happening in consequence of the alterations
and repairs. Imperial Fire Ins. Co. v. Coos County, 452.
INTEREST.
See TRUST, 2, (3).
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