ants did not expect, during the period in which the services were per-
formed, that the United States would compensate them, and that they
looked for recompense to the clients who had retained them, and that
the use of the name of the United States had been consented to on
the application of the plaintiffs with the understanding that they
were to receive no compensation from the United States, and that on
the first intimation that they might look to the United States for
compensation, their formal employment was at once terminated, held,
that there was no contract, express or implied, between them and the
United States, for a breach of which judgment should be rendered
against the latter. Coleman v. United States, 96.
A condition in a grant of land to a railway company that the company
shall construct a certain length of road within a given time, and on
its failure to do so, that the granted estate shall revert to the grantor,
is a condition subsequent, for breach of which the grantor may enter
upon the land and repossess himself of it; and, in case of his doing
so, the land is not subject to attachment thereafter for debts of the
company, contracted while the land was in its possession. Schlesinger
v. Kansas City & Southern Railway Co., 444.
CONSPIRACY.
See CRIMINAL LAW, 3, 4, 5, 6.
1. It is within the power of a State to preserve from extinction fisheries
in waters within its jurisdiction, by prohibiting exhaustive methods
of fishing, or the use of such destructive instruments as are likely to
result in the extermination of the young as well as the mature fish.
Lawton v. Steele, 133.
2. The provision in the statutes of New York, c. 591 of the Laws of 1880,
as amended by c. 317 of the Laws of 1883, that nets set or maintained
upon waters of the State, or on the shores of or islands in such waters,
in violation of the statutes of the State enacted for the protection of
fish, may be summarily destroyed by any person, and that it shall be
the duty of certain officers to abate, remove, and forthwith destroy
them, and that no action for damages shall lie or be maintained
against any person for or on account of such seizure or destruction,
is a lawful exercise of the police power of the State, and does not
deprive the citizen of his property without due process of law, in vio-
lation of the provisions of the Constitution of the United States. Ib.
3. The provision in section 376 of the Code of Civil Procedure of Montana,
which authorizes a court on the petition of a person interested in a
lead, lode or mining claim which is in the possession of another per-
son, after notice to the adverse party, to order an inspection, exami-
nation or survey of the lode or mining claim in question, and that
the petitioner shall have free access thereto for the purpose of making
such inspection, examination and survey, and that any interference
with him while acting under such order, shall be contempt of court,
is not in conflict with the Constitution of the United States. Montana
Co. v. St. Louis Mining & Milling Co., 160.
4. The privileges and immunities of citizens of the United States, pro-
tected by the Fourteenth Amendment, are privileges and immunities
arising out of the nature and essential character of the Federal gov-
ernment, and granted or secured by the Constitution. Duncan v.
Missouri, 377.
5. Due process of law, and the equal protection of the laws are secured if
the laws operate on all alike, and do not subject the individual to an
arbitrary exercise of the powers of government. Ib.
6. An ex post facto law is one which imposes a punishment for an act
which was not punishable at the time it was committed; or an addi-
tional punishment to that then prescribed; or changes the rules of
evidence by which less or different testimony is sufficient to convict
than was then required; or, in short, in relation to the offence or its
consequences, alters the situation of a party to his disadvantage. lb.
7. The prescribing of different modes of procedure, and the abolition of
courts and creation of new ones, leaving untouched all the substantial
protections with which the existing law surrounds the person accused
of crime are not considered within the constitutional prohibition. Ib.
See JURISDICTION, A, 6, 7, 8, 9.
1. S. agreed with a Deputy Quartermaster-General, who acted on behalf
of the United States, to provide and furnish whenever called upon
during the coming fiscal year, such vessels as might be required for a
specified service in the harbor of New York. Each vessel was to have
an engineer and fireman, the remainder of the crew to be supplied by
the United States when required, and the fuel to be supplied by them.
The payment, if employed by the day, was to be at the rate of $67
per diem for each vessel. The government was to have the manage-
ment and control of the vessels while in its service. Under this con-
tract S. furnished a vessel called the Bowen on the requisition of the
quartermaster, which was accepted by the government, and went into
its service. While in government employ a collision occurred, whereby
the Bowen was so damaged that it had to be laid up for repairs for
61 days. During the most of this time S., at the government's re-
quest, furnished another vessel called the Stickney, which was ac-
cepted. He hired this vessel, paying $55 a day, and received from
the government the contract price of $67 for its use. When the
Bowen resumed service after the completion of the repairs, S. claimed
compensation for it for the 61 days at the rate paid by him for the
Stickney. Held, that the contract was one for hiring, and not for ser-
vice, and that the government, during its possession of the vessel, was
a special owner, and bound to pay rent for it until returned to S.
United States v. Shea, 178.
2. When services in the management of a farm and household in Utah
are performed under a general retainer, without any express agree-
ment as to the time or measure of compensation or the term of the
employment, and such services continue for a series of years, no pay-
ments being made, and there is a mutual, open and current account
between the manager and the proprietors, into which the matter of
compensation enters as one of the items, the cause of action must be
deemed to have accrued at the date of the last item proved in the
account on either side. Corinne Mills, Canal &c. Co. v. Toponce, 405.
3. S. contracted with the State of Texas, in writing, January 18, 1882, to
build a new capitol building for it for an agreed compensation, and
not to assign the contract without the consent of the State. On the
31st of January, 1882, S., with the consent of the State, assigned an
undivided three-fourths interest in the contract to F., G., and T., who
were partners. On the same day, without the consent or knowledge of
the State, S. assigned to B., C., and D., each, one-fourth of the one-
fourth interest remaining in him. On the 9th of May, 1882, S. con-
veyed to F., G., and T. all the right and interest which he had in and
under the contract, and the State gave its assent to this transfer on
the 10th of May. It did not appear that the assignees in the last con-
veyance knew of the transfer to B., C., and D. On the 20th of June,
1882, F. and G. transferred, with the consent of the State, all their
interest in the contract to T., who then performed the work to the
satisfaction of the State, and received the agreed compensation there-
for. On the 14th of April, 1883, D. transferred to E. the interest in
the contract which had been transferred to him January 31, 1882, and
on the 27th of May, 1884, he transferred the same interest to T.
Most of these conveyances were filed and recorded in the office of the
county clerk for Travis County, Texas, and some were filed in the
office of the comptroller of public accounts of the State. In a suit
brought by E. against T. to recover what he claimed to be his share
of the profits under the contract, Held, (1) That it was not com-
petent for S., by his own act, and without the consent of the State, to
transfer any interest in the contract; (2) that all that could have
been acquired by an assignment by S., without the consent of the
State, was a right to maintain an action against S. for the share of
the profits which he had attempted to transfer; (3) that when the
contract was transferred to T., who was accepted by the State in lieu
of the original contractor, T. entered upon its performance free from
any disposition of the profits made by the original contract; (4) that
the filing of an instrument for record in a public office of the State,
for the record of which the statutes of the State made no provision,
carried with it no notice to other parties. Burck v. Taylor, 634.
See MUNICIPAL CORPORATION.
CORPORATION.
See JURISDICTION, A, 3;
PATENT FOR INVENTION, 11;
RAILROAD, 1, 2.
COUNTER-CLAIM.
See EQUITY, 4.
1. When, in an action founded upon a state statute, a Federal judge in
instructing the jury adopts the construction given to the statute by
the highest court of the State, it is no error to add that he had for-
merly been of a different opinion, and so instructed former juries.
Louisville & St. Louis Railroad Co. v. Clarke, 230.
2. The jury having in this case practically affirmed the truth of the plain-
tiff's story, this court accepts the result. Corinne Mill, Canal & Stock
Co. v. Toponce, 405.
1. A nolle prosequi as to a count in an indictment works no acquittal, but
leaves the prosecution as though no such count had been inserted
in the indictment. Dealy v. United States, 539.
2. A verdict of guilty or not guilty as to the charge in one count of an
indictment is not responsive to the charge in any other count. Ib.
3. In charging a conspiracy to defraud the United States of large tracts
of land by means of false and fictitious entries under the homestead
laws, it is not necessary to specify the tracts by number of section,
township, and range. Ib.
4. An entry of lands under the homestead law in popular understanding
means not only the preliminary application, but the proceedings as a
whole to complete the transfer of title, and in charging a conspiracy
to obtain public land by false entries, the word may be used in that
sense in the indictment. lb.
5. A charge that an overt act was done according to and in pursuance of
a conspiracy which had been previously recited, is equivalent to charg-
ing that it was done to effect the object of the conspiracy. Ib.
6. If an illegal conspiracy be entered into within the limits of the United
States and within the jurisdiction of the court, the crime is complete,
and the subsequent overt act in pursuance thereof may be done any-
where.
See JURISDICTION, C;
SPIRITUOUS LIQUORS.
1. In construing a tariff act, when it is claimed that the commercial use of
a word or phrase in it differs from the ordinary signification of such
word or phrase, in order that the former prevail over the latter it
must appear that the commercial designation is the result of estab-
lished usage in commerce and trade, and that at the date of the pas-
sage of the act that usage was definite, uniform, and general, and not
partial, local, or personal. Maddock v. Magone, 368.
2. Under the act of March 3, 1883, c. 121, 22 Stat. 488, brass upholstering
nails were subject to the duty of 45 per cent ad valorem imposed upon
manufactures, articles, or wares, not specially enumerated or provided
for in the act, composed wholly or in part of iron, steel, copper, lead,
nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal.
Berbecker v. Robertson, 373.
3. An importation of goods into the port of New York in 1881 being clas-
sified under the first clause of Rev. Stat. § 2499 by the customs offi-
cers, as bearing a similitude to manufactures composed wholly or in
part of the hair of the alpaca, goat, or other like animals, the importer
paid the duties demanded under that classification, -50 cents per
pound and 35 per cent ad valorem, — first protesting that the goods
were "composed of hair and cotton only, and as such should pay
a duty of 35 per cent ad valorem, as a non-enumerated article under
the second half of Rev. Stat. § 2499, being the highest rate of duty
which any of the component material pays." In an action brought
by the importer to recover the alleged excess of duties so demanded
and collected, Held, that this protest was defective in that it failed to
point out or suggest, in any way, the provision which actually con-
trolled, and in effect only raised the question which of two clauses,
under one or the other of which it was assumed that the importation
came, should govern as being most applicable. Herrman v. Robertson,
521.
4. Dry salted codfish, never pickled, imported January 19, 1888, in dry
flour or sugar barrels, incapable of containing liquids, were subject to
a duty of 25 per cent ad valorem, under the act of March 3, 1883,
c. 121, 22 Stat. 488, 504, as other fish not specially enumerated or pro-
vided for; but, as the importer's protest was not sufficient to notify
the collector of his claim, the judgment below is reversed, and a judg-
ment ordered for defendant. Presson v. Russell, 577.
5. Chinese goat-skins, tanned with the hair on, so that the skin is soft and
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