secured to him by the Constitution and laws of the United States, or
because of his having so exercised the same; or if two or more persons
go in disguise on the highway, or on the premises of another, with in-
tent to prevent or hinder his free exercise or enjoyment of any right or
privilege so secured, they shall be fined not more than five thousand
dollars and imprisoned not more than ten years; and shall, moreover, be
thereafter ineligible to any office or place of honor, profit or trust
created by the Constitution or laws of the United States. § 5509. If in
the act of violating any provision in either of the two preceding sec-
tions, any other felony or misdemeanor be committed, the offender
shall be punished for the same with such punishment as is attached to
such felony or misdemeanor by the laws of the State in which the of-
fence is committed." Several persons were indicted under the above
provisions in the Circuit Court of the United States for the Northern
District of Alabama for the crime of murder committed in execution
of a conspiracy to injure, oppress, threaten and intimidate one Thomp-
son because of his having informed the United States authorities of
violations by the conspirators of the laws of the United States relating
to distilling. In Alabama murder in the first degree is punishable by
death or imprisonment for life at the discretion of the jury. At the
preliminary trial before a United States commissioner, Taylor, one of
the accused, testified and his evidence was put in writing and signed
by him. It was sufficient, if accepted, to establish the guilt of all the
defendants. The accused had opportunity to cross-examine him. At
the final trial in the Circuit Court, Taylor, who had pleaded guilty,
was called as a witness for the Government, but did not respond. He
had disappeared, although seen in the corridor of the court-building
about an hour before being called. His absence was not by the pro-
curement or advice of the accused, but was due to the negligence of
the officers of the Government. The court, over the objections of the
accused, allowed Taylor's written statements made under oath at the
examining trial to be read in evidence to the trial jury. The accused
were found guilty as charged in the indictment and sentenced to the
penitentiary for life. At the trial one of the accused testified and stated
that he and Taylor committed the murder, and that the other defend-
ants knew nothing of it and had nothing to do with it. Held: (1) That
no constitutional objection could be urged against sections 5508 and
5509; (2) that under the act of January 15, 1897, c. 29, 29 Stat. 487,
the Circuit Court could not have imposed the penalty of death for the
offence charged, but only imprisonment for life; (3) that under the
Circuit Court of Appeals Act, 1891, any criminal case involving the
construction or application of the Constitution of the United States,
can be brought after final judgment directly to this court from the
Circuit Court; (4) that the admission as evidence of the written state-
ments made by Taylor at the examining trial was in violation of the
rights of the accused under the clause of the Sixth Amendment of the
Constitution of the United States declaring that in all criminal prose-
cutions the accused shall enjoy the right to be confronted with the
witness against him; (5) that the defendant who testified under oath
as to his guilt, and whose testimony was sufficient to convict him, in-
dependently of Taylor's written statement at the examining trial was
not entitled to a reversal for the error committed in allowing that state-
ment to be read, because it could not have prejudiced him. Motes v.
United States, 458.
11. By the constitution and laws of Kentucky, the determination of con-
tests of the election of Governor and Lieutenant Governor is, and for
a hundred years has been, committed to the General Assembly of that
Commonwealth. The Court of Appeals of Kentucky decided that the
courts had no power to go behind the determination of the General
Assembly in such a contest, duly recorded in the journals thereof;
that the office of Governor or of Lieutenant Governor was not property
in itself; and, moreover, that, under the constitution and laws of Ken-
tucky, such determination being an authorized mode of ascertaining
the result of an election for Governor and Lieutenant Governor, the
persons declared elected to those offices on the face of the returns by
the Board of Canvassers, only provisionally occupied them because
subject to the final determination of the General Assembly on contests
duly initiated. Held: (1) That the judgment of the Court of Appeals
to the effect that it was not empowered to revise the determination by
the General Assembly adverse to plaintiffs in error in the matter of
election to these offices was not a decision against title, right, privi-
lege or immunity secured by the Constitution of the United States;
and plaintiffs in error could not invoke jurisdiction because of depri-
vation, under the circumstances, of property or vested rights, without
due process of law; (2) that the guarantee by the Federal Constitution
to each of the States of a republican form of government was intrusted
for its enforcement to the political department, and could not be
availed of, in connection with the Fourteenth Amendment, to give this
court jurisdiction to revise the judgment of the highest court of the
State that it could not review the determination of a contested election
of Governor and Lieutenant Governor by the tribunal to which that
determination was exclusively committed by the state constitution
and laws, on the ground of deprivation of rights secured by the Con-
stitution of the United States. Taylor and Marshall v. Beckham
(No. 1), 548.
1. After a careful review of all the cases, American and English, relating
to anticipatory breaches of an executory contract, by a refusal on the
part of one party to it to perform it, the court holds that the rule laid
down in Hochster v. De la Tour, 2 El. & Bl. 678, is a reasonable and
proper rule to be applied in this case. Roehm v. Horst, 1.
2. That rule is that after the renunciation of a continuing agreement by
one party, the other party is at liberty to consider himself absolved
from any future performance of it, retaining his right to sue for any
damages he has suffered from the breach of it; but that an option
should be allowed to the injured party, either to sue immediately, or
VOL. CLXXVIII-40
to wait till the time when the act was to be done, still holding it as
prospectively binding for the exercise of this option. Ib.
3. The parties to a contract which is wholly executory have a right to the
maintenance of the contractual relations up to the time for perform-
ance, as well as to a performance of the contract when due. Ib.
4. As to the question of damages, when the action is not premature, the
plaintiff is entitled to compensation based, as far as possible, on the
ascertainment of what he would have suffered by the continued breach
of the other party down to the time of complete performance, less any
abatement by reason of circumstances of which he ought reasonably
to have availed himself. Ib.
5. The plaintiff in error is a corporation, organized under the laws of the
State of New York, and doing business as life insurers in the city of
New York. It had an agent in the State of Washington, to whom
Phinney, a resident in that State applied for a policy on his life. The
application stated that it was made subject to the charter of the com-
pany and the laws of New York. A policy was issued which provided
that on its maturing payment was to be made at the home office of
the company in New York, and on its receipt Phinney paid the first pre-
mium. The policy provided that he should pay a like premium for
twenty years, if he should live so long, and that the policy should be-
come void by non-payment of the premium, with a forfeiture of previ-
ous payments. Phinney failed to make the next annual payment. Then
he surrendered the policy to the local agent. He died without having
made that payment, or the next one which matured before his death.
His widow was appointed his executrix. She presented to the com-
pany a claim for the amount of the insurance under the policy. It was
rejected. This suit was thereupon brought. In its answer the com-
pany set up that the contract was not to be taken as a contract under
the laws of the State of New York, but under the laws of the State of
Washington, and the company asked this instruction, which the court
declined to give; "If you find from the evidence in this case that the
said Guy C. Phinney stated to the representative of the defendant in the
State of Washington that he could not pay the premium falling due
September 24, 1891, and that he did not pay nor tender the same, and
that he thereafter surrendered said policy to the defendant's represen-
tative, they mutually believing and understanding that the same was
of no force or validity then or thereafter, by reason of the non-payment
of the said premium, this would constitute an abandonment and re-
scission of this contract by both parties thereto, and would put an end
to the same; and if you find the facts so to be, you must find a verdict
for the defendant." The jury trial resulted in a verdict and judgment
for the plaintiff. This was taken in error to the Court of Appeals for
the Ninth Circuit which dismissed the writ of error on the ground that
it had no jurisdiction by reason of a failure on the part of the plaintiff in
error to file the writ in the office of the trial court. Held: (1) That the
Court of Appeals had jurisdiction; (2) that, without deciding it, the
court would hold for the purposes of this case that the contract was
made under the laws of the State of New York, and was governed by
the laws of that State; (3) that it is to be presumed that each party
knew what the laws of New York were, and neither could be misled
by any statement in respect thereto on the part of the other; (4) that
there is nothing in the New York statute (if controlling at all) to
prevent the parties from dealing with that as with any other contract,
and if they chose to abandon it their action is conclusive. Mutual Life
Insurance Co. v. Phinney, 327.
6. In view of what has been already decided in Mutual Life Insurance Com-
pany v. Phinney, ante, 327, the court holds that it is needless to do
more than note the fact that, as shown by the answer, after the insured
had once defaulted in May, 1892, and a second default had occurred in
May, 1893, application was made to him by the company, through its
agents, to restore the policy, and that he declined to make any further
payments or to continue the policy, and elected to have it terminated,
which election was accepted by the company, and the parties to the
contract treated it thereafter as abandoned, and that there is nothing
in the New York statute (if controlling at all) to prevent the parties
from dealing with that as with any other contract; and if they choose to
abandon it, their action is conclusive. Mutual Life Ins. Co. v. Sears, 345.
7. This case falls within the same rule as Mutual Life Insurance Co. v.
Phinney, ante, 327, and Mutual Life Insurance Co. v. Sears, ante, 345,
and is disposed of in the same way. Mutual Life Insurance Co. v. Hill,
347.
8. Mutual Life Insurance Co. v. Sears, ante, 345, followed. Mutual Life Ins.
Co. v. Allen, 351.
9. Clark contracted with the railway company for the construction of part
of its road. He also contracted for the completion of his work on a day
named. It was not conpleted till some time after that day. Clark con-
tended that the failure was caused by the neglect of the company to pro-
cure a right of way. When the time for settlement came there were also
other disputes between him and the company, which are set forth in de-
tail in the statement of facts. The result was that Clark signed a paper
in which, after stating the disputed claims in detail, it was said: "Now
therefore be it known that I, the said Heman Clark, have received of
and from the said Chicago, Milwaukee and St. Paul Railway Company,
the sum of one hundred and seventy-three thousand, five hundred and
thirty-two and dollars, in full satisfaction of the amount due me on
said estimates, and in full satisfaction of all claims and demands of
every kind, name and nature, arising from or growing out of said con-
tract of March 6, 1886, and of the construction of said railroad, except-
ing the obligation of said railway company to account for said forty
thousand dollars, as herein provided." This paper after signature was
given by him to the railway company, and in return they gave him a
check for the balance named. Five years and more after this trans-
action this action was brought to recover the disputed claims. Held,
that Clark was barred by his release from recovering the disputed sums.
Chicago, Milwaukee and St. Paul Railway Co. v. Clark, 353.
10. The rule laid down in Cumber v. Wane, 1 Strange, 426, that where a liqui-
dated sum is due, the payment of a less sum in satisfaction thereof,
though accepted as satisfaction, is not binding as such for want of con-
sideration, has been much questioned and qualified, and is considered
so far with disfavor, as to be confined strictly to cases within it. Ib.
11. The city of Rochester invited proposals from contractors for two separate
contracts for work to be done for the improvement of its water works.
Among others who bid were the petitioners, the Moffett, etc., Company,
who put in bids for each. Owing to causes which are set forth in full
in the opinion of the court, some serious mistakes were made in the
figures in their proposals, whereby the compensation that they would
receive if their bids were accepted and the work performed by them
would be diminished many thousand dollars. When the bids were
opened by the city government their bids were the first opened, and as
they were read aloud their engineer noticed the errors and called atten-
tion to them and stated what the figures were intended to be and should
be. The statutes of New York provided that "neither the principal nor
sureties on any bid or bond shall have the right to withdraw or cancel
the same until the board shall have let the contract for which such bid
is made and the same shall have been duly executed." The city gov-
ernment rejected one of their bids and accepted the other, and called
for its performance at the prices stated in the bid. The company de-
clined to enter into a contract for the performance of the work at that
price; and, claiming that the city threatened to enforce the bond given
with the proposals, brought suit praying for a reformation of the pro-
posals to conform to the asserted intention in making them and their
execution as reformed, or their rescission; and for an injunction against
the officers of the city, restraining them from declaring the complain-
ant in default, and from forfeiting or enforcing its bond. Judgment
was rendered in the Circuit Court in the company's favor, which was
reversed in the Circuit Court of Appeals. The case was then brought
here on certiorari. Held: (1) That there was no doubt of the mistake
on the part of the company; (2) that there was a prompt declaration
of it as soon as it was discovered; (3) that when this was done the
transaction had not reached the degree of a contract. Moffett, Hodg-
kins & Clarke Company v. Rochester, 373.
12. The party alleging a mistake must show exactly in what it consists and
the correction that should be made. The evidence must be such as to
leave no reasonable doubt on the mind of the court as to either of these
points. The mistake must be mutual and common to both parties to
the instrument. It must appear that both have done what neither in-
tended. A mistake on one side may be a ground for rescinding, but
not for reforming a contract. Where the minds of the parties have not
met there is no contract, and hence none to be rectified. Hearne v.
Marine Ins. Co., 20 Wall. 488, cited on these points and approved. Ib.
13. The contract for life insurance in this case, made by a New York insur-
ance company in the State of Missouri, with a citizen of that State, is
subject to the laws of that State regulating life insurance policies, al-
though the policy declares "that the entire contract contained in the
said policy and in this application, taken together, shall be construed
and interpreted as a whole and in each of its parts and obligations,
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