presents no question of the impairment of the where state court and members of the federal contract which will sustain a writ of error Supreme Court were divided on the question. from the federal Supreme Court to a state-Id. court.-Cleveland & P. R. Co. v. City of Cleve land, 35 S. Ct. 21.

§ 394 (U.S.Sup.) Whether certain railway companies were at common law liable as forwarders of freight to connecting carriers outside the state, and whether they were jointly and severally liable when determined by the highest state court, furnished no basis for writ of error to the federal Supreme Court.-Eastern Ry. Co. of New Mexico v. Littlefield, 35

$394 (U.S.Sup.) No question under the full faith and credit clause of Const. I. S. art. 4, § 1, open to review in the federal Supreme Court on writ of error to a state court, is presented, where the controversy turns on the construction of a statute in a sister state, the, validity of which is not questioned.-Western S. Ct. 489. Life Indemnity Co. of Illinois v. Rupp. 35 8. | $ 394 (U.S.Sup.) An ordinance within the

Ct. 37.

§ 394 (U.S.Sup.) A judgment of the highest state court, enjoining a railroad from construct ing a belt line railway under an ordinance, which the railroad claims gives it contract rights unconstitutionally impaired by a later ordinance, held reviewable in the federal Supreme Court. Louisiana R. & Nav. Co. v. Behr man, 35 8. ('t. 62.

$ 394 (U.S.Sup.) A judgment of a state court giving effect to an ordinance which it is contended is an unconstitutional impairment of an, existing contract with a city is reviewable by the federal Supreme Court on writ of error.New York Electric Lines Co. v. Empire City Subway Co., 35 8. Ct. 72.

§ 394 (1.8.Sup.) A party who relies unsuc cessfully in the state courts on an act of Congress as a defense can bring the case to the federal Supreme Court by writ of error.-Sage v. Hampe, 35 8. Ct. 94.

394 (U.S.Sup.) Ruling of a state court involving only decision of a question of local pleading and practice is not reviewable in the federal Supreme Court.-Washington v. Miller, 35 S. Ct. 119.

$394 (U.S.Sup.) An objection under Const. U. S. Amend. 14, to the classification provided by Laws Miss. 1908, c. 194, abrogating the fellow servant rule as to certain employés, held too frivolous to serve as a basis of a writ of error from the federal Supreme Court.-Easter. ling Lumber Co. v. Pierce, 35 S. Ct. 133.

The contention that due process of law is denied by the retroactive application of Laws Miss. 1912, e. 215, enacted after an accident but before trial, making the accident prima facie presumption of negligence, held insufficient to sustain a writ of error from the federal Supreme Court. Id.

§ 394 (U.S.Sup.) A contention that a deci sion of a bankruptcy court that a claim was not provable, left the claim unaffected by a discharge raises a federal question supporting n writ of error from the Federal Supreme Court to the State Court.-Lesser v. Gray, 35 S. Ct. 227.

$394 (U.S.Sup.) A controlling federal question is involved in a state judgment refusing to measure liability of interstate carrier in an action by an employé for personal injuries, by the Employers Linbility Act. Toledo, St. L. & W. R. Co. v. Slavin, 5 S. Ct. 306.

$394 (U.S.Sup.) Contention in suit in state: court under federal Employers' Liability Act April 22, 1908, that jury was misled by the instructions, may serve as basis of a writ of er ror from federal Supreme Court.-Seaboard Air Line Ry, v. Padgett, 25 S. Ct. 481.

Contention that error was committed in state court in not taking from jury a case under the federal Employers' Liability Act, and not directing verdict for defendant for want of evidence, is not so frivolous as not to serve as basis of writ of error from federal Supreme Court,

powers conferred by the state Legislature upon n city is a statute of the state, within Judicial Code, $237.-Reinman v. City of Little Rock, 35 S. Ct. 511.

$ 394 (U.S.Sup.) No federal question is presented by contention that obligation of contract between taxpayers and New Orleans under special election, statute, and constitutional anendments of a proposition for the purchase of waterworks and construction of free sewerage system, was impaired by Acts La. 1908, No. 270, requiring all inhabited premises in the city to be connected with the public water system.-New Orleans Taxpayers' Protective Ass'n v. Sewerage Water Board of New Orleans, 35 S. Ct. 542.

$ 394 (U.S.Sup.) Question whether right to recover for death of brakeman from noncompliance with Safety Appliance Acts of March 2, 1893, and March 2, 1903, was barred as a matter of law, held a question outside the federal statutes, which cannot be considered by the federal Supreme Court on writ of error sued out under Judicial Code, $237.-Minneapolis, St. P. & SS. M. R. Co. v. Popplar, 35 S. Ct. 609.

§ 394 (U.S.Sup.) Decision of highest state court adverse to contentions of owner of lode mining claim founded on the apex and extralateral-rights provisions of Rev. St. § 2322 (Comp. St. 1913, § 4618) held not to rest on a nonfederal ground so as to defeat appellate jurisdiction of federal Supreme Court.-Stewart Mining Co. v. Ontario Mining Co., 35 S. Ct. 610.

$ 394 (U.S.Sup.) Whether, by consenting to a revivor of action in name of plaintiff's executrix, defendant was estopped from challenging her capacity to sue, was a state question, not reviewable by the federal Supreme Court.Parker v. McLain, 35 S. Ct. 632.

Objection that decree of sister state was not approved, under Rev. St. § 905 (Comp. St. 1913, $1519), because record contained only the decree, is so lacking in merit as to afford no basis for review by federal Supreme Court.-Id.

Federal question resting on false assumption is so plainly devoid of merit as to give no appellate jurisdiction over state court.-Id.

$394 (U.S.Sup.) A plea of res judicata, based on a judgment of a federal court adjudicating a federal right, asserts a right which, if denied by state court, makes a case reviewable in the federal Supreme Court, under Judicial Code, § 237.-Cumberland Glass Mfg. Co. v. DeWitt, 35 S. Ct. 636.

$394 (U.S.Sup.) Contention that error to prejudice of interstate railway company if the federal Safety Appliance Act applied to it, was committed by an instruction as to the degree of care required, is insufficient as basis of writ of error to a state court.-Erie R. Co. v. Solomon, 35 S. Ct. 618.

No substantial federal question is presented by contention that the Safety Appliance Act, if applicable, is repugnant to due process of law clause of Const. U. S. Amend. 14, because con

strued by a state court to exact ordinary care as to the appliances.-Id.

A federal question, which is frivolous, cannot be made substantial, so as to serve as basis for a writ of error to state court, by asserting another proposition of the same character.-Id.

$ 394 (U.S.Sup.) Right of carrier under the federal Employers' Liability Act April 22, 1908, to prove contributory negligence in mitigation of damages, is not infringed by granting a partial new trial for assessment of damages, where the first trial found that the carrier was negligent and the employé was free from contributory negligence.-Norfolk Southern R. Co. v. Ferebee, 35 S. Ct. 781.

§ 394 (U.S.Sup.) The question whether a certain section of the Arkansas laws, extended over Indian Territory by Act May 2, 1890, was in force in Arkansas, is open for review in the federal Supreme Court on writ of error to a state court.-Perryman v. Woodward, 35 S. Ct. 830.

Matters of local practice are not open for review in federal Supreme Court on writ of error to state court.-Id.

§ 394 (U.S.Sup.) Questions in suit under federal Employers' Liability Act relating to matters of pleading to the admissibility of evidence, and various rulings involving no construction of the federal statute, will not be considered. Central Vermont R. Co. v. White, 35 S. Ct. 865. Questions of general law, raised in action under federal Employers' Liability Act, involving construction of the statute, will not be re

no

viewed.-Id.

§ 396 (U.S.Sup.) Contention passed on by the highest court of the state cannot be enlarged to sustain a writ of error from the federal Supreme Court by assignments of error made to bring the case up to that court.-Cleveland & P. R. Co. v. City of Cleveland, 35 S. Ct. 21.

§ 396 (U.S.Sup.) The objection that an assessment for the widening of a street was imposed by judicial fiat and without warrant of law, not being taken at the trial, was not open in the highest state court, is not a basis for writ of error to that court from the federal Supreme Court.-Willoughby v. City of Chicago, 35 S. Ct. 23.

§ 396 (U.S.Sup.) Failure to raise in state courts federal questions on rulings that certain state statutes of limitations barred the relief sought defeats appellate jurisdiction of the federal Supreme Court, where limitations were in express terms stated in the demurrer to bill, sustained by the trial court.-Olympia Min. & Mill. Co. v. Kerns, 35 S. Ct. 415.

$396 (U.S.Sup.) Federal question calling for intervention by Interstate Commerce Commission held not raised in a suit by a shipper in a state court to recover from an interstate carrier damages from failure to furnish cars.Eastern Ry. Co. of New Mexico v. Littlefield, 35 S. Ct. 489.

$396 (U.S.Sup.) A contention not urged upon the highest state court will not be considered in the federal Supreme Court_on_writ of error to the state court.-Chicago, B. & Q. R. Co. v. Railroad Commission of Wisconsin, 35 S. Ct. 560.

would be contrary to the Interstate Commerce Act.-Pennsylvania R. Co. v. Keystone Elevator & Warehouse Co., 35 S. Ct. 644.

§ 396 (U.S.Sup.) Federal question held raised in state court within Judicial Code, § 237, where from opinion of state Supreme Court it appears that question of equal protection of the laws, under Const. U. S. Amend. 14, was treated as raised and ruled on.-Mallinckrodt Chemical Works v. State of Missouri ex rel. Jones, 35 S. Ct. 671.

faith and credit clause of the federal Constitu§ 396 (U.S.Sup.) A question, under the full tion, as to the law of another state, held sufficiently raised to support a writ of error to review a judgment of a New York court holding that the law of New York governs the rights of a Massachusetts benefit society where a Massachusetts judgment construing the charter was expressly pleaded.-Supreme Council of the Royal Arcanum v. Green, 35 S. Ct. 724.

§ 396 (U.S.Sup.) A federal question not raised in the trial court nor on appeal will not be considered on writ of error to the highest state court.-Illinois Cent. R. Co. v. Mulberry Hill Coal Co., 35 S. Ct. 760.

§ 398 (U.S.Sup.) A certificate of the highest state court in its journal entry of judgment cannot import into the record a federal question sustaining a writ of error from the federal Supreme Court, where the record does not otherwise show it to exist.-Cleveland & P. R. Co. v. City of Cleveland, 35 S. Ct. 21.

§ 398 (U.S.Sup.) Judgment of state court awarding shipper damages for payment of rebates to other shippers for a like service should not be reversed on the theory that some of the shipments were destined for points outside the state, where the record does not contain all the evidence, but shows that some of the shipments were listed as "Coal-Intrastate."-Pennsylvania R. Co. v. Mitchell Coal & Coke Co., 35 S. Ct. 787.

§ 399 (U.S.Sup.) Whether the state court could follow procedure followed below is the only question open for consideration by the Federal Supreme Court on a writ of error to a state court attacking under the federal Constitution the validity of an assessment for widening a street.-Willoughby v. City of Chicago, 35 S. Ct. 23.

Whether the benefit to real property for widening of a street is greater or less than the damage is a question of fact not reviewable on a writ of error from the Supreme Court to a state court attacking an assessment for benefits.-Id.

§ 399 (U.S.Sup.) On writ of error to a state court presenting questions of impairment of a contract, the federal Supreme Court will determine whether a contract existed and whether it has been impaired.-New York Electric Lines Co. v. Empire City Subway Co., 35 S. Ct. 72.

$399 (U.S.Sup.) Decision of state court that order of state railroad commission prohibiting demand of prepayment of freight from particular connecting carrier, was authorized by statute, held binding on the Federal Supreme Court. -Wadley Southern Ry. Co. v. State of Georgia, 35 S. Ct. 214.

$396 (U.S.Sup.) Question sustaining appellate jurisdiction of federal Supreme Court over state court held not involved in rulings in suit by an elevator company to recover reasonable compensation from a carrier for services in handling grain, excluding evidence offered by the carrier on the ground that further payment For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER 35 S.C.-63

$399 (U.S.Sup.) Federal Supreme Court on writ of error to state court will review findings of fact, where a federal right has been denied on a finding without evidence to support it.— Northern Pac. Ry. Co. v. State of North Dakota ex rel. McCue, 35 S. Ct. 429.

$399 (U.S.Sup.) Federal Supreme Court, on writ of error to a state court, may review the facts to determine whether a finding of fact is interwoven with a federal question, so as to be a decision of such question.--Norfolk & W. Ry. Co. v. Conley, 35 S. Ct. 437.

$399 (U.S.Sup.) The federal Supreme Court, reviewing judgment of the state court based on the federal Employers' Liability Act April 22. 190%, cannot consider questions not involving the existence of the right of plaintiff to recover under such statute.-Seaboard Air Line Ry. V. Indgett, 35 8. Ct. 481.

$399 (1.8.Sup.) Findings of court showing that fare paid by interstate passenger was less than amount due under published rates, are conclusive on the federal Supreme Court.Louisville & N. R. Co. v. Maxwell, 35 S. Ct. 494.

$399 (U.S.Sup.) The federal Supreme Court will assume that a state Supreme Court, when reversing, with directions to dismiss, a decree entered after demurrer to the answer had been sustained, and by which an order restraining enforcement of ordinance making it unlawful to conduct a livery stable business within a certain area was made perpetual, acted on the facts set up in the answer, that the restricted area was in a densely populated part of the city and the stables were so conducted as to be productive of disense.-Reinman v. City of Little Rock, 35 S. Ct. 511.

(B) State Courts and United States Courts. 1887, § 9, of choice between complaint to In$489 (U.S.Sup.) The grant in Act Feb. 4, terstate Commerce Commission by person damaged by common carrier, and suit in federal court for damages, was exclusive of any remedy in the state courts.-Pennsylvania R. Co. v. Puritan Coal Min. Co., 35 S. Ct. 484.

Juridiction of state courts in any case not involving matters within the power and discretion of Interstate Commerce Commission, or as to which the jurisdiction of the federal courts had been made exclusive, was not superseded by Act Feb. 4, 1887, §§ 8, 9, 22.-Id. State courts have jurisdiction concurrent with federal courts, under Act Feb. 4, 1887, § 22, of a suit by a shipper against an interstate carrier for damages arising in interstate commerce.-Id. State and federal courts have concurrent jurisdiction without preliminary finding by Interstate Commerce Commission under Act Feb. 4, 1887, § 22, of a suit by a coal mining company against an interstate carrier for damages arising in interstate commerce.—Id.

§ 489 (U.S.Sup.) State courts have jurisdiction concurrent with federal courts under Act Feb. 4, 1887, § 22, of a suit against an intertate carrier for damages in interstate commerce.-Eastern Ry. Co. of New Mexico v. Littlefield, 35 S. Ct. 489.

$399 (U.S.Sup.) Finding of state court that no part of the apex of a vein lies within the surface lines of a lode mining claim requires affirmance of a judgment of the highest state court adverse to owner of claim based on apex $508 (U.S.Sup.) The federal Circuit Court and extralateral-rights provision of Rev. St. § having jurisdiction on diversity of citizenship of 2322 (Comp. St. 1913. § 4615). Stewart Min a bill could enjoin enforcement of a judgment ing Co. v. Ontario Mining Co., 35 S. Ct. 610. of a state court obtained by fraud and without $399 (U.S.Sup.) Excessiveness of award for notice to the judgment debtor.-Simon v. Southsuffering of deceased railway employé in actionern R. Co., 35 S. Ct. 255. under Employers' Liability Act April 22, 1908, as amended by Act April 5, 1910, is a ques tion of fact not reviewable on writ of error to state court. St. Louis, I. M. & S. Ry. Co. v. Craft, 5 S. Ct. 704.

(H) Circuit Courts of Appeals.

$405 (U.S.Sup.) Application to a Circuit Court of Appeals for writ of prohibition forbidding a district judge to vacate a conviction in a criminal case pending in the former court on writ of error is within Judicial Code, § 2, authorizing certification of questions of law by a Circuit Court of Appeals in a case within its appellate jurisdiction.-United States v. Mayer, 3 S. Ct. 16.

Importance of the question certified by the Circuit Court of Appeals under Judicial Code, $29, for decision filed by the federal Supreme Court, is no reason for its disallowance if the question is suitably specific.-Id.

(J) District Courts.

$426 (U.S.Sup.) Claims under Act July 27, 1912, for refunding of stamp taxes under War Revenue Act June 13, 1898, were "founded on a law of Congress," within Judicial Code, § 24, par. 20, conferring jurisdiction on District Courts-United States v. Hvoslef, 35 S. Ct.

459.

(K) Territorial and Provisional Courts. § 431 (U.S.Sup.) Irregularity in transferring to the Federal district court a suit begun prior to statehood in a territorial court based on Act April 22, 1908, as amended by Act April 5, 1910, is waived by answer on the merits to the

A suit in a federal Circuit Court to enjoin enforcement of a judgment of a state court obtained by fraud and without notice to the debtor is not forbidden by Rev. St. § 720.-Id.

COVENANTS,

See Public Lands, § 85.

III. PERFORMANCE OR BREACH. § 88 (U.S.Sup.) Notice of suit and opportunity to defend must be given warrantor of title to render judgment against title of his grantee available against him.-Kapiolani Estate v. Atcherley, 35 S. Ct. 832.

CRIMINAL LAW.

See Conspiracy, §§ 28-48; Customs Duties, §
123: Extradition: Indians, § 38; Indict-
ment and Information; Pardon; Perjury.

I. NATURE AND ELEMENTS OF
CRIME AND DEFENSES
IN GENERAL.

$15 (U.S.Sup.) The repeal by Act Feb. 8, 1894, of all the sections of Rev. St. tit. 70, relating to offenses against the elective franchise, did not withdraw all offenses by election offcers from operation of section 5508 (Comp. St. 1913, § 10183), making it criminal to conspire to injure rights of citizen, secured by the Constitution or laws.-United States v. Mosley, 35 S. Ct. 904.

$15 (U.S.Sup.) Repeal by Act Feb. 8, 1894, of all sections of Rev. St. I. S. tit. 70. c. 7, relating to offenses against elective franchise.

did not withdraw offenses of election officers | may, when sued for amount due under reliqfrom operation of section 5508 (Comp. St. 1913, uidation, set up his defense as in other cases.§ 10183.).-Guinn v. United States, 35 S. Ct. United States v. Sherman & Sons Co., 35 S. 926. Ct. 520.

FUNDING, AND DRAWBACK.

VI. LIMITATION OF PROSECUTIONS. V. PAYMENT AND COLLECTION, RE§ 147 (U.S.Sup.) Conspiracy to commit against the United States, contrary to Cr. Code, § 37, an act criminal under Bankr. Act July 1, 1898, is not an offense arising under that act within section 29d, limiting prosecutions, but is governed by Rev. St. § 1044 (Comp. St. 1913, § 1708), limiting prosecutions for offenses not capital.-United States v. Rabinowich, 35 S. Ct.

682.

§ 998 (U.S.Sup.) A federal District Court has no jurisdiction, after the term at which a conviction has been entered, to set aside the judgment for misconduct of counsel or bias of jurors discovered after the expiration of such term.-United States v. Mayer, 35 S. Ct. 16.

The consent of the United States attorney could not confer jurisdiction on a federal District Court to entertain a motion after the term to set aside a conviction on facts discovered after the expiration of the term.-Id. XVII. PUNISHMENT AND PREVENTION OF CRIME.

§ 1213 (U.S.Sup.) Prohibition of Const. U. S. Amend. 8, against cruel and unusual punishment, is a limitation on the federal government, and not on the states.-Collins v. Johnston, 35 S. Ct. 649.

§ 1216 (U.S.Sup.) Each successive cutting into different mail bags with intent to steal the mail therefrom by one who cuts successively a number of such ags, is a distinct offense, punishable under Cr. Code, § 189.-Ebeling v. Morgan, 35 S. Ct. 710.

$1216 (U.S.Sup.) Persons stealing stamps and postal funds from a post office after breaking commit two distinct offenses which may be separately charged and punished, under Pen. Code, $$ 190, 192.-Morgan v. Devine, 35 S. Ct. 712.

CROPS.

§ 96 (U.S.Sup.) Bill by United States to recover for fraud difference between duties paid and those which should have been paid must conform to general rule of pleading where recovery is sought for fraud. United States v. Sherman & Sons Co., 35 S. Ct. 520.

VII. VIOLATIONS OF CUSTOMS

LAWS.

§ 123 (U.S.Sup.) Concealment by agent consignee of imported goods of facts not proper to be included in the invoice, account, and bill of lading, but which would have excited the suspicion of a collector, is not a violation of Act Aug. 5, 1909, § 28, making it a felony to state falsely in declaration of an agent consignee that nothing has been suppressed or concealed, whereby the United States may be defrauded of duties lawfully due.-United States v. Salen, 35 S. Ct. 51.

DAMAGES.

See Appeal and Error, §§ 714, 1064; Carriers, § 36; Death, §§ 82-95; Ejectment, § 142; Elections, § 104.

VIII. PLEADING, EVIDENCE, AND

ASSESSMENT.

(C) Proceedings for Assessment.

§ 210 (U.S.Sup.) Defense of malpractice on part of surgeons who operated on plaintiff held properly presented in an action for personal injuries received by a woman in a railroad colCo. v. Hill, 35 S. Ct. 575. lision by the instructions given.-Texas & P. R.

DEATH.

See Appeal and Error, § 1144; Courts, § 394;
Judgment, 8 688; Master and Servant, §
278; Removal of Causes, § 99.

II. ACTIONS FOR CAUSING DEATH.
(A) Right of Action and Defenses.
$10 (U.S.Sup.) Right of action under Em-
ployers' Liability Act April 22, 1908, in behalf
of an injured interstate railway employé, is ex-
tinguished by his death from his injuries.-Gar-
rett v. Louisville & N. R. Co., 35 S. Ct. 32.

§ 32 (U.S.Sup.) That beneficiaries are nonresident aliens will not prohibit action for damages under Employers' Liability Act April 22,

See Chattel Mortgages, § 117; Mortgages, § 1908, as amended by Act April 5, 1910, to per

126.

sonal representatives for the benefit of certain specified dependent relatives of an employé of an interstate carrier.-McGovern v. Philadel

CRUEL AND UNUSUAL PUNISHMENT. phia & R. Ry. Co., 35 S. Ct. 127.

See Criminal Law, § 1213.

CUSTOMS DUTIES.

IV. ENTRY AND APPRAISAL OF
GOODS, BONDS, AND WARE-
HOUSES.

(D) Pleading and Evidence. § 52 (U.S.Sup.) Declaration in an action against an interstate carrier under Employers' Liability Act April 22, 1908, for the benefit of parents of an employé dying from the injuries received in interstate commerce, is fatally de§ 81 (U.S.Sup.) Importer held not concluded fective where it fails to show facts apprising by a reliquidation for fraud a year after re- defendant of the pecuniary loss in fact suffered. moval of goods, but under Act June 22, 1874, §-Garrett v. Louisville & N. R. Co., 35 S. 21, making the settlement of duties in the ab- Ct. 32. sence of fraud conclusive after one year, and Tariff Act August 5, 1909, § 28, subsec. 14, he

§ 77 (U.S.Sup.) Evidence held to justify a finding that a railroad employé endured con

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

$95 (U.S.Sup.) It is reversible error to instruct that, in fixing damages under federal Employers Liability Act, the age, health, occupation, and earning capacity should be considered, and that from that amount the personal expenses should be deducted, and the remainder should be the amount of recovery. See Courts, § 426. Kansas City Southern R. Co. v. Leslie, 35 S. Ct. 844.

(F) Trial, Judgment, and Review. $105 (U.S.Sup.) General verdiet for plain$16 (U.S.Sup.) The burden is on commissiontiff may be returned by jury in action by an ers of District of Columbia, in street improveadministratrix under Employers' Liability Actments instituted under Act June 30, 1911, to for benefit of widow and minor children with establish extent of special benefits to property out apportioning the damages.- Central Ver- to be charged.-Newman v. Lynchburg Inv. mont R. Co. v. White, 35 S. Ct. 805. Corp., 35 S. Ct. 477.