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PRESUMPTION. See Letters-Patent, 13.


The expression "profits used in construction" (within the meaning of
the one hundred and twenty-second section of the Internal Revenue
Act of June 30, 1864, 13 Stat. 284) does not embrace earnings
expended in repairs for keeping the property up to its normal con-
dition, but has reference to new constructions adding to the perma-
nent value of the capital; and when these are made to take the place
of prior structures, it includes only the increased value of the new
over the old, when in good repair. Grant, Collector, v. Hartford &
N. H. R. R. Co., 225.



A promissory note, bearing date Jan. 28, 1859, payable twelve months
thereafter at the Citizens' Bank, New Orleans, and indorsed by A.,
the payee, and B., the then owner thereof, who resided in Missouri,
was, before maturity, placed in the branch of the Louisiana State
Bank at Baton Rouge, whose cashier indorsed and forwarded it to
the mother bank at New Orleans for collection. It was duly pro-
tested for non-payment by the notary of the mother bank, who mailed
notices of protest for the indorsers to the cashier of the branch bank.
A., upon whom reliance was principally placed, died, and his execu-
tors were qualified before the maturity of the note; but neither they
nor B. was served by the branch bank with notice of protest. Held,
that the bank was liable for any loss thereby sustained by the holder
of the note. Bird et al., Executors, v. Louisiana State Bank, 96.

1. A public corporation, charged with specific duties, such as building
and repairing levees within a certain district, being superseded in
its functions by a law dividing the district, and creating a new
corporation for one portion, and placing the other under charge of
the local authorities, ceases to exist except so far as its existence
is expressly continued for special objects, such as settling up its
indebtedness, and the like. Barkley v. Levee Commissioners et al.,


2. If, with such limited existence, no provision is made for the continu-
ance or new election of the officers of such corporation, the functions
of the existing officers will cease when their respective terms expire,
and the corporation will be de facto extinct. Id.

3. In such case, if there be a judgment against the corporation, mandamus
will not lie to enforce the assessment of taxes for its payment, there
being no officers to whom the writ can be directed.


4. The court cannot, by mandamus, compel the new corporations to per-
form the duties of the extinct corporation in the levy of taxes for


the payment of its debts, especially where their territorial jurisdiction
is not the same, and the law has not authorized them to make such
levy. Id.

5. Nor can the court order the marshal to levy taxes in such a case; nor
in any case, except where a specific law authorizes such a proceeding.

6. Under these circumstances, the judgment creditor is, in fact, without
remedy, and can only apply to the legislature for relief. Id.


1. The act of Congress of July 23, 1866 (14 Stat. 218), confirming
selections theretofore made by California of any portion of the
public domain, divided them into two classes; namely, one in which
they had been made from land surveyed by the United States before
the passage of the act, and the other in which the selected lands had
not been so surveyed. Huff v. Doyle et al., 558.

2. Where the surveys had been made before the passage of the act, it
was, by the second section thereof, the duty of the State authorities
to notify the local land officer of such selection, where they had not
already done so. Such notice was regarded as the date of such
selection. Id.

3. Where the surveys had not yet been made, the State, under the third
section, had the right to treat her selection made before the passage
of the act as a pre-emption claim; and the holder of her title was
allowed the same time to prove his claim under the act, after the
surveys were filed in the local land-office, as was allowed to pre-
emptors under existing laws. Id.

4. By a fair construction of these provisions, and others of this statute,
and of the act of March 3, 1853 (10 Stat. 244), the exception in the
first section confirming these selections, of lands "held or claimed
under a valid Mexican or Spanish grant," must be determined as of
the date when the claimant, under a State selection, undertakes to
prove up his claim after the surveys have been made and filed, and
within the time allowed thereafter to pre-emptors. Id.

5. If at that date the land selected by the State was excluded from such
a grant, either by judicial decision or by a survey made by the
United States, the claimant may have his claim confirmed. Id.
PUBLIC POLICY. See Common Carriers, 5; Contingent Compensation.
1. As the rule of caveat emptor applies to a purchasar at a judicial sale,
under a decree foreclosing a mortgage, he cannot retain from his bid
a sum sufficient to pay a part of the taxes on the property which
were a subsisting lien at the date of the decree of foreclosure. Oster-
berg v. Union Trust Co., 424.

2. Where such a purchaser, having failed to punctually comply with the


terms of sale, is granted an extension of time by the court, the prop-
erty in the mean time to remain in the possession of a receiver, he
is not entitled to any of the earnings of the property while it so
remains in the possession of the latter, nor is he in a position to
question the orders of the court as to their application. Id.

3. Before the commencement of a suit to foreclose a mortgage, some of
the lands covered by it had been transferred to a trustee, by way of
indemnity against a bond upon which he was surety for the mort-
gagor, and sold by the trustee, with the consent of the mortgagee.
The proceeds thereof were subsequently paid over to the receiver
appointed in the foreclosure suit. The decree did not order the sale
of the lands from which such proceeds arose, nor did the master
attempt to sell them. Held, that the purchaser at the foreclosure
sale acquired no right to such proceeds. Id.


A purchaser of property pendente lite is as conclusively bound by the
results of the litigation as if he had from the outset been a party
thereto. Tilton et al. v. Cofield et al., 163.


A company is none the less a railroad company, within the meaning
of the act of the general assembly of the State of Illinois, approved
Nov. 6, 1849, authorizing counties to subscribe to the capital stock
of railroad companies, because its charter vests it with power to carry
on, in addition to the business of such a company, that of a coal, or
a mining, or a furnace, or a manufacturing company. County of
Randolph v. Post, 502.

Grant Railroads, 2.


Domicile, 1, 2.

See Bills of Exchange and Promissory Notes, 6;

RECEIVERS. See Purchasers at Judicial Sales, 2, 3.

1. A receiver is not authorized, without the previous direction of the
court, to incur any expenses on account of property in his hands,
beyond what is absolutely essential to its preservation and use, as
contemplated by his appointment. Accordingly, the expenditures
of a receiver to defeat a proposed subsidy from a city, to aid in the
construction of a railroad parallel with the one in his hands, were
properly disallowed in the settlement of his final account, although
such road, if constructed, might have diminished the future earn-
ings of the road in his charge. Cowdrey et al. v. Galveston, Houston,
& Henderson R. R. Co. et al., 352.

2. The earnings of a railroad in the hands of a receiver are chargeable
with the value of goods lost in transportation, and with damages
done to property during his management. Id.

RECEIVERS (continued).

3. Where an attorney and counsellor-at-law, employed by trustees of
certain mortgaged property to foreclose the mortgages, upon a stip-
ulated retaining fee, entered upon such retainer, commenced the
suit, prosecuted it until prevented by the outbreak of the civil war,
and, after the termination of the war, offered to go on with the suit;
but, in the mean time, the trustees having died, a new suit was
commenced and prosecuted, without his assistance, by the bond-
holders (for whose security the mortgages were executed), to fore-
close the same mortgages, in which suit a receiver was appointed, –
Held, that his claim for his fee was chargeable against the funds
obtained by the receiver from the mortgaged property. Id.



See Letters-Patent, 4-7, 13, 14.

Under the act of March 2, 1867 (14 Stat. 558), a suit pending in a State
court, between a citizen of the State in which the suit was brought
and a citizen of another State, could not, on the application of the
former, be removed to a circuit court of the United States. Hurst
v. Western & Atlantic R. R. Co., 71.

REQUESTS FOR INSTRUCTIONS. See Practice, 7-9, 18, 19, 27.

The following sections, among others, referred to, commented on, and
explained: -

Sect. 691. See Jurisdiction, 4.

Sect. 692. See Jurisdiction, 1.

REVIVAL OF CONTRACTS. See Life Insurance, 1-5.

The doctrine of revival of contracts, suspended during the war, is based
on considerations of equity and justice, and cannot be invoked to
revive a contract which it would be unjust or inequitable to revive,
as where time is of the essence of the contract, or the parties
cannot be made equal. New York Life Ins. Co. v. Statham et al., 24.


See Life Insurance, 6.

SAVANNAH RIVER. See Commerce, 1-4.

SCHOOL LANDS. See Nevada, 1-3.

In construing the act of March 3, 1853 (10 Stat. 246), the court held:
1. School sections 16 and 36, granted to the State of California by
sect. 6 of the act, are also excepted from the operation of the pre-
emption law to which, by the same section, the public lands gen-
erally are subjected. 2. The rule governing the right of pre-emption
on school sections is provided by the seventh section of the act; and
it protects a settlement, if the surveys, when made, ascertain its
location to be on a school section. 3. In such case, the only right

SCHOOL LANDS (continued).

conferred on the State is to select other land in lieu of that so occu-
pied. 4. The proviso to the sixth section, forbidding pre-emption
on unsurveyed lands after one year from the passage of the act, is
limited to the lands not excepted out of that section, and has no ap-
plication to the school sections so excepted. Sherman v. Buick, 109.

SENTENCE. See Jurisdiction, 16.

TWEEN. See Commerce, 1.


The following, among others, referred to, commented on, and ex-
plained: -

1797. March 3.
1812. June 13.
1839. Feb. 28.

See United States, Right of, to Priority of Payment.
See Land Grants, 1.

See Patents for Lands, 1.

See Jurisdiction, 10.

1850. Sept. 28.
1852. March 30.

See Commerce, 8.

1853. March 3.
1864. March 21.

1864. June 30.

1866. July 23.

1866. July 26.

1867. March 2.

1868. July 20.
1870. July 14.
1872. June 1.
1872. June 8.

1874. June 23.

1875. Feb. 16.

See Public Lands, 4; School Lands, 1.
See Nevada, 1, 2.

See Profits used in Construction, &c.
See Public Lands, 1.

See Nevada, 3.

See Assignee in Bankruptcy, 1; Jurisdiction, 6, 9.
12; Removal of Causes.

See Distilleries.
See Import Duties.
See Practice, 17, 18.
See Contracts, 2.

See Writs of Error, 1.
See Jurisdiction, 4.

SUBROGATION. See Bills of Exchange and Promissory Notes, 2.

SUPERSEDEAS. See Sureties in an Appeal Bond.

1. Unless an appeal is perfected, or a writ of error sued out and served
within sixty days, Sundays exclusive, after the rendition of the
decree or judgment complained of, it is not within the power of a
justice of this court to allow a supersedeas. Kitchen v. Randolph, 86.
2. To make a nunc pro tunc order effectual for the purposes of a super-
sedeas, it must appear that the delay was the act of the court, and
not of the parties, and that injustice will not be done. Sage et al.
v. Central R. R. Co. of Iowa et al., 412.


1. Under the laws of Louisiana, sureties in an appeal bond, which oper-
ates as a supersedeas, are liable, by a summary proceeding, to judg-
ment, after execution on the original judgment has been issued, and

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