1. Review of judgment of state court necessarily involving Federal question
duly raised but not referred to in opinion.
Where a Federal question is duly raised at the proper time and in a proper
manner in the state court and the judgment of the state court neces-
sarily involves the decision of such question this court on writ of error
will review such judgment although the state court in its opinion made
no reference to the question. And if it is evident that the ruling of
the state court purporting to deal only with local law has for its premise
or necessary concomitant a cognizable mistake, that may be suffi-
cient to warrant a review. Schlemmer v. Buffalo, R. & P. Ry. Co., 1.
2. Review of judgment of Supreme Court of Philippine Islands—Errors of
law disregarded if not stated in assignment of error.
In reviewing judgments of the Supreme Court of the Philippine Islands
the same rule applies as does in reviewing judgments of the Circuit
Courts of the United States that alleged errors of law not stated in the
assignment of errors filed with the petition for the writ of error will be
disregarded unless they are so plain that under the provision in the
thirty-fifth rule to that effect the court may at its option notice them,
but this court will not subject the opinion of the court below to minute
scrutiny to discover error of law when on the whole it is clear, as in
this case, that the facts found by that court justify the judgment
under review. Behn v. Campbell, 403.
3. Mode of review of errors in action at law-Scope of review on appeal and
writ of error.
In the absence of modification by statute the rule in respect to all courts
whose records are brought for review to this court is that errors alleged
to have been committed in an action at law can be reviewed here only
by writ of error; but this court has always observed the rule recognized
by legislation that while an appeal brings up questions of fact as well
as of law, on writ of error only questions of law apparent on the record
can be considered, and there can be no inquiry whether there was error
in dealing with questions of fact. Ib.
1. Right to increased pay under § 7 of act of April 26, 1898.
Section 7 of the act of April 26, 1898, 30 Stat. 364, was not enacted to give
increased pay for the discharge of the ordinary duties of the service.
but to give compensation for the greater risk and responsibility of
active military command; and the assignment under orders of com-
petent authority must be necessary and non-gratuitous. United States
v. Mitchell, 161.
2. When officer of army is exercising command under assignment in orders
by competent authority within meaning of § 7 of act of 1898.
A second lieutenant of the United States army who, in the absence of the
captain and first lieutenant assumes command of the company in
regular course under § 253 of the Army Regulations of 1895, is not
exercising under assignment in orders issued by competent authority,
a command above that appertaining to his grade within the meaning
of 7 so as to obtain the benefit of the statute, even though a regi-
mental special order may issue directing him to assume the command,
and this action may be attempted to be ratified by special order of the
commanding general where it is not apparent that any necessity for
special direction existed. Ib.
ASSESSMENT.
See CONSTITUTIONAL LAW, 8;
CONTRACTS, 3, 5.
ASSIGNMENT.
See CONTRACTS, 3, 5;
CORPORATIONS, 2.
ASSIGNMENT OF ERROR.
See APPEAL AND ERROR, 2.
ASSUMPTION OF RISK.
See NEGLIGENCE, 1;
SAFETY APPLIANCE ACT.
AUTOMATIC COUPLER ACT.
See SAFETY APPLIANCE ACT.
1. Discharge; claims barred by-To what words in § 17, subd. 4 of bankruptcy
act extend.
Where a claim is founded upon an open account or upon a contract, express
or implied, and can be proved under § 63a of the bankruptcy act, if the
claimant chooses to waive the tort and take his place with the other
creditors, the claim is one provable under the act and barred by the
discharge. The words in the fourth subdivision of § 17, "while acting
as an officer, or in any fiduciary capacity," extend to "fraud, em-
bezzlement, misappropriation," as well as "defalcation." (Crawford
v. Burke, 195 U. S. 176.) Tindle v. Birkett, 183.
2. Life insurance policies within meaning of § 70a of bankruptcy act of 1898.
The provisions in § 70a of the bankruptcy act of 1898, that a bankrupt
having policies of life insurance payable to himself and which have a
cash-surrender value, may pay the trustee such value and thereafter
hold the policies free from the claims of creditors, are not confined to
policies in which the cash-surrender value is expressly stated, but permit
the redemption by the bankrupt of policies having a cash-surrender
value by the concession or practice of the company issuing the same.
Hiscock v. Mertens, 202.
3. When jurisdiction of bankruptcy court concurrent with that of state court—
Effect of amendment of February 5, 1903, to bankruptcy act of 1898.
The possession of a temporary receiver in bankruptcy of the proceeds of
property, upon which the bankrupt had fraudulently imposed a lien,
deposited as a special fund to await the further order of the court, did
not affect the rule that under the bankruptcy act of 1898, prior to the
amendment of February 5, 1903, 33 Stat. 797, the state court in which
an action could have been brought prior to the bankruptcy to set aside
the lien had exclusive jurisdiction of a similar action brought by the
trustee. The amendment of February 5, 1903, gave the bankruptcy
court in such a case concurrent, not exclusive, jurisdiction. Frank
v. Vollkommer, 521.
4. When presumed that trustee represented claims of creditors in proceeding
in state court to set aside chattel mortgage.
Where it was necessary that a trustee in bankruptcy should represent
judgment creditors in order to attack the validity of a chattel mort-
gage given by the bankrupt, if the state court has set the mortgage
aside and the record shows that all the proceedings in the bankruptcy
court were in evidence in the state court, it will be presumed that the
trustee represented the necessary claims of creditors, although the
evidence is not returned to this court. Ib.
See CONTRACTS, 7;
TAXES AND TAXATION, 3.
Boundary between the States of Mississippi and Arkansas defined.
Under the acts of Congress of March 1, 1817, 3 Stat. 348, admitting Mis-
sissippi, and of June 15, 1836, 5 Stat. 50, admitting Arkansas to the
Union, the boundary line between the two States is the middle of the
main channel of the Mississippi River as it was in 1817, and at the point
where Island No. 76 is situated it was at that time on the Mississippi
side of that island which has never been within the State of Mississippi,
notwithstanding attempts on the part of that State to exercise juris-
diction thereover. Moore v. McGuire, 214.
See JURISDICTION, D 4;
PRACTICE AND Procedure, 4.
BUILDING CONTRACTS.
See CONTRACTS, 6.
BURDEN OF PROOF.
See JURISDICTION, B 1;
SAFETY APPLIANCE ACT, 3.
See SAFETY APPLIANCE ACT.
Joy v. St. Louis, 201 U. S. 332, distinguished from Moore v. McGuire, 214.
Vance v. W. A. Vandercook Co., 170 U. S. 438, distinguished from Delamater
v. South Dakota, 93.
Brown v. New Jersey, 175 U. S. 172, followed in Barrington v. Missouri, 483.
Board of Trade v. Christie Grain and Stock Co., 198 U. S. 236, followed in
Hunt v. New York Cotton Exchange, 322.
Crawford v. Burke, 195 U. S. 176, followed in Tindle v. Birkett, 183.
De Lima v. Bidwell, 182 U. S. 1, followed in Pearcy v. Stranahan, 257.
Jellenik v. Huron Copper Mining Co., 177 U. S. 1, 10, followed in Citizens'
Sav. & Trust Co. v. Illinois Central R. R., 46.
Johnson v. Southern Pacific Co., 196 U. S. 1, followed in Schlemmer v. Buf-
falo, R. & P. Ry. Co., 1.
Jones v. United States, 137 U. S. 202, followed in Pearcy v. Stranahan, 257.
Northern Pacific Railway v. Slaght, 205 U. S. 122, followed in Same
v. Same, 134.
Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, followed in Delamater v.
South Dakota, 93.
Slater v. Mexican Central Nat. R. R. Co., 194 U. S. 120, followed in Mexican
Central Ry. Co. v. Eckman, 538.
Tinsley v. Treat, 205 U. S. 20, followed in Kessler v. Treat, 33; Gould v.
United States v. Rice, 4 Wheat. 246, followed in Pearcy v. Stranahan, 257.
United States v. Rauscher, 119 U. S. 407, followed in Johnson v. Browne, 309.
United States v. Shipp, 203 U. S. 563, followed in Patterson v. Colorado, 454.
Weston v. Charleston, 2 Pet. 449, followed in Home Savings Bank v. Des
Moines, 503.
CERTIFICATE.
See JURISDICTION, B 7;
PRACTICE AND PROCEDURE, 9, 10.
To Court of Appeals of District of Columbia; when writ will lie.
While under § 6 of the Court of Appeals Act of 1891, 26 Stat. 828, a cer-
tiorari can only be issued when a writ of error cannot be, it will not
be issued merely because the writ of error will not lie; but only where
the case is one of gravity, where there is conflict between decisions of
state and Federal courts, or between those of Federal courts of different
circuits, or something affecting the relations of this Nation to foreign
nations, or of general interest to the public. Fields v. United States,
292.
CHANCERY SALES.
See SALES, 3.
CHANGE OF VENUE.
See JURISDICTION, A 6.
CIRCUMSTANTIAL EVIDENCE.
See CRIMINAL LAW, 1, 2.
CITIZENSHIP.
See JURISDICTION, A 4;
PERSONAL RIGHTS.
CLAIMS AGAINST THE UNITED STATES.
Effect of overpayment to officer of army on claim for extra pay.
Where the United States filed no set-off or counterclaim the court will
not overhaul the allowance made to an officer of the Army by the
auditor of the War Department. An overpayment erroneously made
does not determine the legality of the claim. United States v. Mitchell,
161.
CLASSIFICATION.
See STATES, 4.
|