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he would be guilty of manslaughter; that under the circumstances
the jury might have found that the accused, although in the wrong
when he kicked or kicked at the deceased, did not provoke the fierce
attack made upon him by the latter with a knife in any sense that
would deprive him of the right of self-defence against such attack;
and that the accused was entitled, so far as his right to resist the
attack was concerned, to remain where he was, and to do whatever.
was necessary, or what he had grounds to believe at the time was
necessary, to save his life, or to protect him from great bodily harm.

Rowe v. United States, 546.
23. If a person under the provocation of offensive language, assaults the

speaker personally, but in such a way as to show that there is no inten-
tion to do him serious bodily harm, and then retires under such cir-
cumstances as show that he does not intend to do anything more,
but in good faith withdraws from further contest, his right of self-
defence is restored when the person assaulted, in violation of law pur-
sues him with a deadly weapon and seeks to take his life, or to do him

great bodily harm. Ib.
24. The objection that the warrant of arrest of the plaintiff in error pur-

ports to be issued by a “Commissioner U. S. Court, Western District

of Arkansas," instead of a “ Commissioner of the Circuit Court,” as
required by statute, is frivolous and without rnerit. Starr v. United

States, 627.
25. The ruling in Ilickory v. United States, 160 U. S. 408, and the ruling in

Alberty v. United States, 162 U. S. 499, that it is misleading for a court
to charge a jury that, from the fact of absconding they may infer the
fact of guilt, and that flight is a silent admission by the defendant
that he is unable to face the case against him are reaffirmed, and such

an instruction in this case is held to be fatally defective. Ib.
26. On the trial of a person accused of rape, the court, in charging the

jury, said: “The fact is that all the force that need be exercised, if
there is no consent, is the force incident to the commission of the act.
If there is non-consent of the woman, the force, I say, incident to the
commission of the crime, is all the force that is required to make out
this element of the crime.” Held, that this charge covered the case
where no threats were made; where no active resistance was over-
come; where the woman was not unconscious; where there was sim-
ply non-consent on her part, and no real resistance; and that such
non-consent was not enough to constitute the crime of rape. Mills v.

United States, 644.
27. The plaintiffs in error were engaged in the management and conduct of

two lotteries at Covington, Kentucky, opposite Cincinnati, Ohio, where
there were drawings twice a day. They had agents in Cincinnati,
each of whom, before drawing, sent a messenger to Covington with a
paper showing the various numbers chosen, and the amounts bet, and
the money less his commissions. After the drawing, what was termed

an “official print” was made, which consisted of a printed sheet show-
ing the numbers in their consecutive order as they came out of the
wheel, and on the line beneath, the numbers were arranged in their
natural order. In addition to the official privt,” these messengers,
after the drawing has been had, brought back to the agents at Cin-
cinnati what was known as “hit-slips.” These were slips of paper
with nothing but the winning numbers on them, together with a state-
ment of a sum in dollars. The money to the amount named on the
paper was brought over by the messenger to the agent in Cincinnati.
Some of these messengers were arrested as they were coming from
Covington, walking across the bridge, and just as they came to the
Cincinnati side. They had with them in their pockets the official
sheet and the hit-slips as above described, containing the result of the
drawing, which had just been concluded at Covington. They had the
money to pay the bets, and were on their way to the various agents
in the city of Cincinnati. Procuring the carrying of these papers
was the overt act towards the accomplishment of the conspiracy upon
which the conviction of plaintiffs in error was based. There was
nothing on any of the papers which showed that any particular person
had any interest in or claim to any money which the messengers car-
ried. The plaintiffs in error were indicted under Rev. Stat. $ 5440,
for conspiring to violate the act of March 2, 1895, c. 191, “ for the sup-
pression of lottery traffic through national and interstate commerce."
Held, that the carrying of such books and papers from Kentucky to
Ohio was not, within the meaning of the statute, a carrying of a paper
certificate or instrument purporting to be or represent a ticket, chance,
share or interest in or dependent upon the event of a lottery, so called
gift-concert, or similar enterprise, offering prizes depending upon lot
or chance, as provided for in such statute ; as the lottery had already
been drawu; as the papers carried by the messengers were not
then dependent upon the event of any lottery; and as the lan-
guage as used in the statute looks to the future. France v. United

States, 676.
28. On a trial for murder, if the declarations of the deceased are

offered, the fact that she had received extreme unction has a ten-
dency to show that she must have known that she was in articulo
mortis, and it is no error to admit evidence of it. Carver v. United

Stales, 691.
29. Where the whole or a part of a conversation has been put in evidence

by the government on the trial of a person accused of the commission
of crime, the other party is entitled to explain, vary or contradict

it. Ib.
30. When the dying declarations of the deceased are admitted on the trial

of a person accused of the crime of murder, statements made by the
deceased in apparent contradiction to those declarations are adınissi-
ble. 16.

CUSTOMS DUTIES.
In 1888, when the goods were imported to recover back the duties paid

upon which this action was brought, a right of action accrued to an
importer if he paid the duties complained of in order to get possession
of his merchandise, and if he made his protest, in the form required,
within ten days after the ascertainment and liquidation of the duties.
Saltonstall v. Birtwell, 54.

DIRECT TAX REFUNDING ACT.

1. The last clause of section 4 of the act of March 2, 1891, c. 496, 26 Stat.

822, entitled “ An act to credit and pay to the several States and Ter-
ritories and the District of Columbia all moneys collected under the
direct tax levied by the act of Congress approved August 5, 1861,"
does not refer to or cover the cases of those owners who are mentioned

in the first clause of the same section. Mckee v. United States, 287.
2. Brewer v. Blougher, 14 Pet. 178, affirmed to the point that it is the duty

of the court, in construing a statute, to ascertain the meaning of the
legislature from the words used in it, and from the subject-matter to
which it relates, and to restrain its meaning within narrower limits
than its words import, if satisfied that the literal meaning of its
language would extend to cases which the legislature never designed

to embrace in it. lb.
3. A mortgage creditor, who was such at the time of the sale of real

estate in South Carolina for non-payment of taxes to the United States
under the tax acts of 1861, is not the legal owner contemplated by
Congress in the act of March 3, 1891, c. 496, as entitled to receive the
amount appropriated by that act in reimbursement of a part of the
taxes collected; but the court, by this decision, must not be under-
stood as expressing an opinion upon what construction might be jus-
tified under other facts and circumstances, and for other purposes.

Glover v. United States, 294.
4. A tract of land in South Carolina was sold in 1863 under the direct tax

acts for non-payment of the direct tax to the United States, and was
bid in by the United States. It was then subdivided into two lots, A
and B. Lot A, the most valuable, was resold at public auction to E
who had a life estate in it, and it was conveyed to him. Lot B was
also resold, but the present controversy relates only to Lot A. This
lot was purchased by a person who had been a tenant for life of the
whole tract before the tax sale. After the purchase and during his life-
time it was seized under execution and sold as his property. No part
of the property has come into the possession of the remaindermen, claim-
ants in this action, nor have they repurchased or redeemed any part
of it from the United States, nor has any purchase been made on their
account. Under the act of March 2, 1891, c. 496, 26 Stat. 822, they
brought this suit in the Court of Claims to assert their claim as

VOL. CLXIV-46

owners in fee simple in remainder, and to recover one half of the
assessed value of the tract. Held, that as they were ad.nittedly
owners, as they themselves neither purchased nor redeemed the land,
and as they are not held by any necessary intendment of law to have
been represented by the actual purchaser, they are entitled to the
benefit of the remedial statute of 1891. United States v. Elliott, 373.

EQUITY.
See CLAIMS AGAINST THE UNITED MUNICIPAL CORPORATION, 1;
States, 1, 2;

Public MONEYS, 3;
Receiver.

LACHES ;

ESTOPPEL.
See JURISDICTION, A, 8.

EVIDENCE.
Evidence of the reputation of a man for truth and veracity in the neigh-

borhood of his home is equally competent to affect his credibility as
a witness, whether it is founded upon dispassionate judgment, or
upon warm admiration for constant truthfulness, or natural indigna-
tion at habitual falsehood; and whether his neighbors are virtuous
or immoral in their own lives. Such considerations may affect the
weight, but do not touch the competency, of the evidence offered to
impeach or to support his testimony. Brown v. United States, 221.

See CRIMINAL LAW;:7, 19, 28, 29, 30;

FRAUD;
Local Law, 3, 4.

EXECUTIVE OFFICERS.

See PUBLIC MONEYS.

FEES.
1. A clerk of a Circuit Court who is directed by the court to keep a crimi-

nal final record book, in which are to be recorded indictments, in-
formations, warrants, recognizances, judgments and other proceedings,
in prosecutions for violating the criminal laws of the United States, is
not entitled, in computing folios, to treat each document, judgment,
etc., as a separate instrument, but should count the folios of the record
as one instrument continuously from beginning to end. United States

v. Kurtz, 49.
2. A clerk's right to a docket fee, as upon issue joined, attaches at the

time such issue is in fact joined, and is not lost by the subsequent
withdrawal of the plea which constituted the issue; and this rule

applies to cases in which, after issue joined, the case is discontinued

on nol. pros. entered. 16.
3. When a list of the jurors, with their residences, is required to be made

by the order or practice of the court, and to be posted up in the
clerk's office or preserved in the files, and no other mode of com-
pensating the clerk is provided, it may be charged for by the folio.

Ib.
4. The clerk is also entitled to a fee for entering an order of court direct-

ing him as to the disposition to be made of moneys received for fines,
and for filing bank certificates of deposit for fines paid to the credit

of the Treasurer of the United States. Ib.
5. The fees to which a marshal is entitled, under Rev. Stat. § 829, for

attending criminal examinations in separate and distinct cases upon
the same day and before the same commissioner, are five dollars a
day; but when he attends such examinations before different com-
missioners on the same day he is entitled to a fee of two dollars for
attendance before each commissioner. United States v. McMahon,

81.

6. A special deputy marshal, appointed under Rev. Stat. § 2021, to attend

before commissioners and aid and assist supervisors of elections, is
entitled to an allowance of five dollars per day in full compensation

for all such services. Ib.
7. The marshal of the Southern District of New York, who transports

convicts from New York City to the state penitentiary in Erie County
in the Northern District of New York is entitled to fees at the rate of
ten cents per mile for the transportation, instead of the actual expense

thereof. 16.
8. A marshal is not entitled to a fee of two dollars for serving temporary

and final warrants of commitment.

FINDINGS OF FACT.
See MechaNIC's LIEN.

FRAUD.
The rule that in all proceedings instituted to recover moneys or to set

aside and annul deeds or contracts or other written instruments on
the ground of alleged fraud practised by a defendant upon a plaintiff,
the evidence tending to prove the fraud and upon which to found a
verdict or decree must be clear and satisfactory extends to cases of
alleged fraudulent representations, on the faith of which an officer of
the government has done an official act upon which rights
making the representations may be founded; and in this case the evi-
dence on the part of the plaintiff, when read in connection with that
which was given on the part of the defendants, falls far short of the
requirements of the rule. Lalone v. United States, 255.

the party

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