2. A state tax upon the gross receipts of a steamship company incorpo-
rated under its laws, which are derived from the transportation of
persons and property by sea, between different states, and to and from
foreign countries, is a regulation of interstate and foreign commerce,
in conflict with the exclusive powers of Congress under the Constitu-
tion. Philadelphia & Southern Steamship Co. v. Pennsylvania, 326.
3. The statutes of the state of Indiana, §§ 4176, 4178, Rev. Stat. Ind. 1881,
which require telegraph companies to deliver despatches by messenger
to the persons to whom the same are addressed or to their agents
provided they reside within one mile of the telegraphic station or
within the city or town in which such station is, are in conflict with
the clause of the Constitution of the United States which vests in
Congress the power to regulate commerce among the states, in so far
as they attempt to regulate the delivery of such despatches at places
situated in other states. Western Union Telegraph Co. v. Pendleton,
347.

4. The authority of Congress over the subject of commerce by telegraph
with foreign countries or among the states being supreme, no state
can impose an impediment to its freedom, by attempting to regulate
the delivery in other states of messages received within its own
borders. Ib.

5. The reserved police power of a state under the Constitution, although
difficult to define, does not extend to the regulation of the delivery at
points without the state of telegraphic messages received within the
state; but the state may, within the reservation that it does not en-
croach upon the free exercise of the powers vested in Congress, make
all necessary provisions in respect of the buildings, poles, and wires
of telegraph companies within its jurisdiction, which the comfort and
convenience of the community may require. Ib.

6. A state constitution cannot prohibit judges of the courts of the United
States from charging juries with regard to matters of fact. St. Louis,
Iron Mountain & Southern Railway v. Vickers, 360.

See TAX, 3.

CONTRIBUTORY NEGLIGENCE.

See RAILROAD, 6.

CONTRACT.

1. When the language of a contract is ambiguous, the practical interpreta-
tion of it by the parties is entitled to great, if not controlling influence.
Topliff v. Topliff, 121.

2. In this case the court holds that a contract made by the parties in 1870
is still in force, and that under its terms the appellee is entitled to
make use of the combinations covered by the patent to John A. Top-
liff, one of the appellants, of August 24, 1875, without the payment
of royalty, and without being charged with liability as an infringer.
Ib.

3. A written instrument between A and B, held to constitute A the creditor
of B, and not the partner, and not to make A liable to third parties on
contracts made by B. Davis v. Patrick, 138.

4. From the evidence in this case the court is satisfied that the verbal con-
tract which forms the subject of the controversy did not fix any time
for the completion of the work, and that the work was completed with-
in a reasonable time; and it affirms the decree of the court below.
Minneapolis Car Co. v. Kerr Murray Mfg. Co., 300.
See CONSTITUTIONAL LAW, 1;

PARTNERSHIP;

RAILROAD, 4, 5.

CORPORATION.

1. The Louisville and Nashville Railroad Company is a corporation of
Kentucky, and not of Tennessee, having from the latter state only a
license to construct a railroad within its limits, between certain points,
and to exert there some of its corporate powers. Goodlett v. Louisville
& Nashville Railroad, 391.

2. A corporation is liable civiliter for torts committed by its agents, under
its authority, whether express or implied, written, and under seal, by
vote of the corporation or otherwise. Denver & Rio Grande Railway
v. Harris, 597.

See TRESPASS ON THE CASE.

COURT AND JURY.

1. In a suit by a third party against A to make him liable on such a con-
tract, where the written instrument is in evidence, an instruction to
the jury is erroneous, which overrides the legal purport of the instru-
ment. Davis v. Patrick, 138.

2. An instruction to a jury, based upon a theory unsupported by evidence,
and upon which theory the jury may have rendered the verdict, is
erroneous. Ib.

3. The rule announced in Phoenix Insurance Company v. Doster, 106 U. S.
32, and in Randall v. Baltimore & Ohio Railroad, 111 U. S. 482, as to
when a case may be withdrawn from a jury by a peremptory instruc-
tion reaffirmed. Goodlett v. Louisville & Nashville Railroad, 391.
4. When a declaration in assumpsit contains a special count, under which
on the proofs the plaintiff can recover, and also general counts, an
instruction to the jury that the plaintiff can recover under the general
counts, if it be erroneous, works no injury to the defendent. Struthers
v. Drexel, 487.

5. If, in regard to any particular subject or point pertinent to the case the
court has laid down the law correctly, and so fully as to cover all that
is proper to be said on the subject, it is not bound to repeat this

instruction in terms varied to suit the wishes of either party. North-
western Ins. Co. v. Muskegon Bank, 501.

See CONSTITUTIONAL LAW, 6;

INSURANCE, 3 (3) (4) (5);

PRACTICE, 6;
RAILROAD, 2, 6.

COURT-MARTIAL.

Article 65 of the Articles of War in the act of April 10, 1806, 2 Stat. 359,
367, "for the government of the armies of the United States," enacted
that "neither shall any sentence of a general court-martial, in time of
peace, extending to the loss of life, or the dismission of a commissioned
officer, or which shall, either in time of peace or war, respect a general
officer, be carried into execution until after the whole proceedings shall
have been transmitted to the Secretary of War to be laid before the
President of the United States, for his confirmation or disapproval, and
orders in the case." Held: (1) That the action required of the Presi-
dent by this article is judicial in its character, and in this respect
differs from the administrative action considered in Wilcox v. Jackson,
13 Pet. 498; United States v. Eliason, 16 Pet. 291; Confiscation Cases,
20 Wall. 92; United States v. Farden, 99 U. S. 10; Wolsey v. Chap-
man, 101 U. S. 755. (2) That (without deciding what the precise
form of an order of the President approving the proceedings and sen-
tence of a court-martial should be, or that his own signature should
be affixed thereto), his approval must be authenticated in a way to
show, otherwise than argumentatively, that it is the result of his own
judgment and not a mere departmental order which may or may not
have attracted his attention, and that the fact that the order was his
own must not be left to inference only. (3) That until the President
acted in the manner required by the article, a sentence by a court-
martial of dismissal of a commissioned officer from service in time of
peace was inoperative. United States v. Runkle, 543.

There being no sufficient evidence that the action of the court-martial
which dismissed Major Runkle from the service was approved by the
President, it follows that he was never legally cashiered or dismissed
from the army. Ib.

COURT OF CLAIMS.

The appellant on the 17th February, 1886, filed his petition in the Court of
Claims setting forth his appointment as assignee in bankruptcy of one
Robert Erwin and of Hardee, his partner, in business in Savannah;
that Erwin in 1864 and in 1865 was the owner of a quantity of cotton
in the state of Georgia, which was seized and captured, and the pro-
ceeds of which passed into the Treasury of the United States; that
Congress on the 5th February, 1877, passed an act to permit the
Court of Claims to take jurisdiction of the claims of Erwin for. this
cotton, his right of action therefor being then barred; that at the
time of the passage of said act Erwin's said claims had passed into

the hands of his assignee and were a part of his assets in bankruptcy;
and that this suit was brought in pursuance of the special act; and he
prayed judgmert for the amount in the Treasury. The United States
demurred to this and also moved to dismiss the petition. The Court
of Claims dismissed the petition. On appeal that judgment is affirmed
by a divided court. Rice v. United States, 611.

1. Under § 2839 of the Revised Statutes, there can be no recovery by the
United States for a forfeiture of the value of imported merchandise,
the property of its foreign manufacturer, against the person to whom
he had consigned it for sale on commission, and who entered it as
such consignee, the forfeiture being claimed on the ground that the
merchandise was entered at invoice prices lower than its actual market
value at the time and place of exportation. United States v. Auff-
mordt, 197.

2. Section 2839 applies only to purchased goods. Ib.

3. Section 2864, so far as it provides for a forfeiture of the value of mer-
chandise, is repealed by the provisions of § 12 of the act of June 22,
1874, c. 391, 18 Stat. 188. lb.

4. The amendment made to § 2864, by the act of February 18, 1875, c. 80,
18 Stat. 319, by inserting the words "or the value thereof," did not
have the effect of enacting that the value of merchandise is to be for-
feited under § 2864, notwithstanding the act of June 22, 1874, c. 391.
The object and effect of the amendment were only to correct an error
in the text of § 2864, and to make it read as it read, when in force, on
the 1st of December, 1873, as a part of § 1 of the act of March 3, 1863,
c. 76, 12 Stat. 738. Ib.

5. Rosaries composed of beads of glass, wood, steel, bone, ivory, silver, or
mother-of-pearl, each rosary having a chain and cross of metal, were,
under the Revised Statutes, dutiable at 50 per cent ad valorem, under
the head of "beads and bead ornaments," in Schedule M of § 2504, 2d
ed., p. 473; the duty on manufactures of the articles of which the
beads were composed, and on manufactures of the metal of the chain
and cross, being less than 50 per cent ad valorem; and § 2499 re-
quiring that "on all articles manufactured from two or more mate-
rials, the duty shall be assessed at the highest rates at which any of
its component parts may be chargeable;" and rosaries not being an
enumerated article. Benziger v. Robertson, 211.

See TREATY.

DAMAGES.

See COLLISION, 4;

TRESPASS ON THE CASE, 2, 3.

DEFAULT.

See MANDAMUS, 1.

DES MOINES VALLEY IMPROVEMENT GRANT.

See PUBLIC LAND, 1.

DIVISION OF OPINION.
See JURISDICTION, A, 1.

EQUITY.

1. The court finds no fraud or irregularity in the transactions assailed in
the bill to warrant a reversal of the decree. Sanger v. Nightingale,
176.

2. In order to justify a resort to a court of equity for the enforcement of
an equitable estoppel, some ground of equity, other than the estoppel
itself, must be shown whereby the party entitled to the benefit of it is
prevented from making it available in a court of law; and it must
be made to appear that forms of law are being used to defeat that
which, in equity, constitutes the right. Drexel v. Berney, 241.
3. When in a suit in equity brought to restrain the respondent from en-
forcing against the complainant in an action at law a demand against
which the complainant claims to have an equitable defence which is
set forth in the bill, it appears to be altogether uncertain whether the
complainant can avail himself in the action at law of the defence as-
serted in the bill, the bill should not be dismissed upon general de-
murrer, but the respondent should be required to answer. Ib.

4. B., a citizen of the United States, died in France, having in Europe,
lodged with bankers in London and elsewhere, a large amount of per-
sonal securities. He left a will naming his widow, his brother J. of
Alabama, one S., a citizen of France, and others as executrix and ex-
ecutors. With the knowledge and consent of the widow and of the
other parties interested J. caused the will to be admitted to probate in
Alabama, obtained a decree that the decedent was domiciled there,
and letters testamentary were issued to J. only. The Surrogate of
New York, upon this probate, issued ancillary letters testamentary to
J.; and, under the same probate, S., likewise with the widow's consent,
received a power of attorney from J. as executor to take possession of
the property in Europe and administer upon the estate there. In pur-
suance of this authority he, in company with the widow, proved the
will in common form in England and took out letters testamentary
there in the name of himself and the widow, and took possession of
the property, among which were registered bonds of the United States