Volume 5 — Alaska Reports

<p>1. Parent and Child <&wkey;3(l)—Education oe Child.</p> <p>The father of a child is chargeable with the duties of maintenance and education; these cannot be performed without the authority to command and enforce obedience.</p> <p>2. Parent and Child &wkey;>3(l)—Schools—Religious Instruction.</p> <p>The term “education” is not limited to the ordinary instruction of the child in the pursuit of literature; it means more. It comprehends a proper attention to the moral and religious sentiments of the child; in the discharge of this duty it is the undoubted right of the father to designate such teachers, either in morals, religion, or literature, as he shall deem best calculated to impart correct instructions to the child.</p> <p><®^>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Public Lands <&wkey;31—Squatters’ Rights.</p> <p>Though the failure of Congress to extend the land laws of the United States to Alaska may be a source of annoyance to settlers, still tbey are entitled to protection in tbeir right of possession.</p> <p>2. Public Lands <&wkey;39(6)—Town Sites—Highways.</p> <p>The handing together of a community of people, laying out and platting a town site, and the dedication of streets and alleys to public use, is legitimate, and will estop all wbo participated therein.</p> <p>3. Public Lands &wkey;>31—Possessory Rights in.</p> <p>Public necessity requires that all those who have immigrated here and are occupying the public domain must be protected in tbeir possessory rights.</p> <p>4. Navigable Waters <&wkey;36(3)—Public Lands—Tide Lands— Streets—Wharves.</p> <p>The land lying between bigh and low water mark at tbe foot of Seward street leading to Gastineaux Channel, in the town of Juneau, and shown to be essential to the use and convenience of said street, is public property held by the government in trust for the coming state. The defendants could not legally appropriate that portion of the beach between high and low water mark. Koehler and his coplaintiff had a right to sue for the purpose of redressing an injury to themselves by tbe obstruction of the street, and when their interest was made to appear they acted in the attitude of redressing a continuing trespass and wrong against themselves and acted in behalf of all others who were or might be injured by the wrongful acts of the defendants. .</p> <p>5. Nuisance <&wkey;63—Highways—Navigable Waters.</p> <p>Driving piles on the beach where the tide ebbs and flows, between bigb and low water mark, at tbe foot of Seward street, so as to prevent tbe free use of said street, is such a nuisance as equity will abate.</p> <p>same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Fish <&wkey;9—Fur Seals—Act of Congress.</p> <p>The act of Congress of July 27, 1868 (15 Stat. 241, c. 273, § 6), in relation to the protection of seal life in Alaskan waters, is not in conflict with the Constitution of the United States.</p> <p>2. International Law <$&wkey;6 — Treaties — Bering Sea — Mare Clausum.</p> <p>The United States purchased and acquired all the title Russia had to that portion of Bering Sea described in the treaty of March 30, 1867 (15 Stat. 539), including the whole group of the Aleutian Islands. Russia had acquired title to the sea by right of discovery as far back as 1741, and this right was recognized by both Great Britain and the United States by the treaties of 1S24 (April 17, 1824, 8 Stat. 302) and 1825.</p> <p>3. Estoppel <&wkey;62(l)—Treaties <&wkey;7—Contracts.</p> <p>The law of estoppel in certain cases applies to nations as to individuals. Nations, like individuals, have the right of contracts, and their treaties are subject to the same rules of interpretation. Great Britain and her Dominion government, of which British Columbia is a part, are estopped from any claim of right to take fur-bearing animals in that part of Bering Sea which is bounded by the lines set' forth in the treaty of March, 1867; her treaty with Russia of 1825 having expired.</p> <p>4. Territories &wkey;>8—Treaties <&wkey;7—Constitutional Law.</p> <p>The courts have power to interpret treaties, and when made they should be held sacred, and are a part of the supreme law of the land. Congress recognized the validity of the treaty by extending the laws in relation to customs, commerce, and navigation to and over all the waters of Alaska.</p> <p><§^>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Contempt <&wkey;18—Officers.</p> <p>The judge of the district court appointed three appraisers under sections 939, 940, Kev. Stat. U. S. 1878 (U. S. Comp. St. 1916, §§ 1565, 1566), to appraise and place a value upon certain fur seal skins seized by United States revenue cutters in Bering Sea, and brought to Sitka for condemnation and sale; the United States marshal interfered with the appraisers and forbade them from appraising the skins claiming they were in his possession. Held, guilty of contempt of court.</p> <p>2. Criminal Law <&wkey;99S—Judgment—Courts—Jurisdiction.</p> <p>For contumacious opposition to the order of the court the United States marshal was fined $50 and paid the fine to the clerk; subsequently he made a motion to have the entry of said fine expunged from the record, remitted, and the money refunded, denying any intention to disregard or in any way disrespect or violate the order of the court. Held that, while courts may, during the term, correct or recall judgments in either civil or criminal cases, which are unexecuted, yet that, when a fine has been imposed, paid, and the record completed, the court has no further power over the subject-matter, and can give no relief.</p> <p><§=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This case is before me on numerous motions of the defendant to vacate findings of fact and conclusions of law of my predecessor and to set aside the verdict and judgment by him and to grant a new trial therein.

Louis Camicia died intestate, and, so far as is known at this time, without heirs, at Valdez, Alaska, May 12, 1912, leaving estate consisting principally of real property, and some little personal property, in Valdez, Alaska. The question in this case is: Does said estate escheat to the United States, or to’ the territory of Alaska?

On January 9, 1914, defendants in this case filed the following motion; “Come now the defendants, and each of them herein, and move the court, each for himself or itself, to dismiss this, action upon the records therein.” No specific part of the long record in the case is pointed out as being that upon which defendants rely in said motion, but on the oral argument of the motion the court was informed by defendant’s counsel that the point relied upon for a dismissal is this,…

In this case, on January 7th, the United States attorney filed a motion that counts 2 and 6 of the indictment be dismissed and that the trial of the defendants on the charges set out in count 1 of said indictment be set for the 2d day of February.

<p>1. New Trial <&wkey;ll(2)—Second Motion Not Allowed.</p> <p>A second motion for a new trial may not be made in Alaska, under section 1057, Comp. Laws 1913.</p> <p>2. New Trial <&wkey;36—Argument and Practice.</p> <p>Where the judge who heard an equity case, and is familiar with the evidence, facts, and pleadings, overruled a motion for a new trial without hearing argument, held, not ground for a new trial on a second motion heard before the successor to the trial judge.</p> <p><@ss>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

The Seward Water & Power Company was fined $15 before the city magistrate of Seward for the violation of Ordinance No. 15 of that town, which provides: “Section 1.

<p>1. Pledges <&wkey;ll—Master and Servant—Possession of Property.</p> <p>The plaintiff was placed in charge of the property of his employer, the Alaska T. & T. Co., with the agreement that he should watch it and hold it as a pledge to secure the debt due him. He was given an agreed lien on it to secure the sum due him for services. The defendant in this ease, the United States marshal, seized the property under a writ of attachment in a suit brought by an attaching creditor of the Alaska T. & T. Co. On suit by the watchman against the marshal for damages, helé that the possession of the property by De Blondeau, the watchman and alleged pledgee, was the possession of his employer, the Alaska T. & T. Co., to whom the property belonged when seized by the marshal under the attachment, and the watchman, having no special property or ownership therein, cannot maintain this action. Nonsuit granted.</p> <p>2. Pledges <&wkey;ll—Lien.</p> <p>In order to constitute a valid pledge, there must be an immediate, actual, and continued change of possession of the property to the pledgee, as against creditors or subsequent purchasers or incumbrancers in good faith; and such change of possession requires the pledgee to hold the property exclusively as a security for the payment of the debt for which the property is pledged.</p> <p><©=s>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Plaintiff is a citizen of Alaska. He sues defendant, which he alleges is a corporation “duly incorporated and existing under and by virtue of the laws of the state of Washington.” The cause of action set out in the complaint is the conversion by defendant, at Tacoma, Wash., of certain moneys of plaintiff which had been sent to Tacoma from Juneau. Service of summons was had on C. H. Hyde, president of the defendant company.

In this action plaintiff seeks to recover possession of a twenty-acre placer mining claim in what is known as the Shushana mining .region, Alaska. Plaintiff claims to be the owner of said mining claim and that on or about the 20th day of August, 1913, the defendant unlawfully entered thereupon and ousted the plaintiff therefrom.

This is an action brought to enforce an interest in a mortgage on mining property and declare a resultant trust, and involves the construction of a written contract between plaintiff and defendants. On January 11, 1908, the defendants, Lechner & Skeen, being the owners of the Betty and seven other lode mining claims in the Kenai recording precinct, territory of Alaska, deeded said claims to Southack & Clark.

The petitioner for habeas corpus in this case was convicted in a criminal action for the crime of libel in the justices’ court for the precinct of Cape Nome, Alaska, and is in custody by virtue of a commitment upon said judgment, in' the district jail of the town of Nome.

<p>Process <&wkey;119—Parties—-Plaintiff.</p> <p>A nonresident plaintiff, who comes voluntarily into Alaska to prosecute a suit for the foreclosure of a mortgage made by defendant to the plaintiff at a time when both were residents of Alaska, may be served with process in a suit begun against him by the defendant in the foreclosure suit, to recover for items of indebtedness for money alleged to have been borrowed by him and for board and lodging furnished to him by the said defendant in the foreclosure suit; while he was such resident of Alaska; motion to quash service denied.</p> <p>-g—.Hpa same topis & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Plaintiff brings an action in ejectment to recover possession of a mining claim which he claims to have located on the 1st day of August, 1913.

On January 5, 1912, Johnston and Ferris sued the executors of the estate of Woodside et al. (obligees in the bond herein sued upon), claiming ownership of a certain fund of money then in the hands of one Hurlburt, a disinterested third person not a party to that, or to this, action. Said cause was No. 886-A, files of this court. On the same day, on an ex parte application made by said Johnston and Ferris, a receiver was appointed to take the custody of said fuiid.

This is an action brought by the plaintiff to secure a divorce from defendant on the ground of habitual gross drunkenness, or to annul the marriage contract claimed to have been entered into between plaintiff and defendant on or about November 15, 1910, at Vancouver, B. C. Defendant was personally served with summons and complaint within the jurisdiction of this court, and, failing to appear or make any answer, is in default.

This is a motion to vacate the order in this case appointing a receiver for a protection of certain property involved therein, and it is based on several specified grounds which for the purposes of the court’s decision may be reduced to three, to which I will address myself.

<p>Courts &wkey;>202(5)—Executors and Administrators—Probate Courts —Appeal and Error.</p> <p>The statute of Alaska does not require a notice of appeal to bring to tbe judge of the district court exceptions and objections made to tbe allowance or rejection of claims against tbe estate of a decedent; but it does not follow that tbe appellant may dispense with any notice of appeal, or may choose his own time for filing the transcript. The deficiency may be supplied by analogy, or by the practice within a reasonable time, or may be controlled by the .rules of court.- The rule of the district court in division No. 1 requires that such appeal be taken within 30 days; an appeal not taken within time dismissed.</p> <p>(§=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This is an action to foreclose laborers’ liens upon the Eva Association placer mining claim, situate on Ester creek, in the Fairbanks recording district, the plaintiff claiming a lien on behalf of himself for labor performed in the development of this mining claim and also as the assignee of two other lien claimants.

The district attorney for this division, under authority from, and by the direction of, the Attorney General of the United States, began this action to enjoin the defendants from entering or trespassing upon a certain tract of land, situate upon the north bank of the Yukon river at a place known as Ft.

<p>1. Mechanics’ Liens &wkey;>271(l)—Enforcement—Pleading.</p> <p>The sufficiency of the complaint in a suit to foreclose a mechanic’s lien must he determined by the provisions of the statute creating the lien, and if there is substantial compliance therewith it will be sufficient.</p> <p>2. Mines and Minerals &wkey;>112(l)—Mechanics’ Liens—Notice.</p> <p>Knowledge that work and labor is being done on a mining claim, for which the laborers, under section 694,' Gomp. Laws Alaska 1913, are entitled to a lien, may be either positive or implied. The implication of knowledge arises when the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him by the exercise of due diligence to a knowledge of the principal fact. This is the general rule especially applicable to the case here.</p> <p><&wkey;See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Divobce &wkey;>91—Pleadings—Allegations of Residence.</p> <p>The plaintiff brought suit for divorce, but did not allege in his complaint that he had been an inhabitant of the district of Alaska for two years prior thereto. On demurrer, held, the nonallegation of the fact of such residence is fatal to the jurisdiction of the court. Demurrer sustained.</p> <p><@=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This suit is against the Alaska Gastineau Mining Company, a foreign corporation. Service of process was made by delivering a duly certified copy of the summons and complaint to one R. C. Hurley. The corporation appeared specially and moved to quash the service. The record shows the following facts concerning the service: (1) The defendant corporation has no president, or other head, secretary, or cashier in the district.

The plaintiff, as a trustee in bankruptcy, has brought this action against the defendant bank to recover the sum of $3,-750.27, alleged to have been received by the defendant as a preferential payment within four months of the date of bankruptcy.

The plaintiff, as trustee in bankruptcy of E. A. Williams, brought this action against Dora Williams and H. E. Lawson, her son, to set aside a certain deed and bill of sale, dated February 3, 1912, and recorded August 7, 1912, conveying all the real and personal property of the bankrupt to said Dora Williams.

<p>1. -Execution <@=»160—Practice—Motion to Quash. '</p> <p>Motion to quash execution in equity denied, because in practice and in effect it is an application for a new trial, which has already been denied in this suit.</p> <p>2. Appeal and Error <&wkey;478—Supersedeas—Motion to Postpone Sale.</p> <p>The defendant in an equity suit, after a motion for a new trial was denied, filed a motion to postpone the sale of the premises ordered to be sold by the decree, for one year, or for ten days after the filing the mandate of the appellate court in the trial court. Motion denied, and held, the motion is in effect an effort to secure the benefit of a supersedeas, which the defendants waived by failing to comply with the provisions of the statute requiring the application for the supersedeas to be filed within 60 days after the rendition of the decree.</p> <p>3. Appeal and Error <&wkey;458(l)—Supersedeas.</p> <p>The supersedeas is a right secured by statute, and of imperative obligation on the court and its officers. If the provisions of the statute are complied with the right exists. If these are not complied with, it cannot exist. Without such compliance no court can confer it.</p> <p><§r^See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This is a suit brought by wife for separate maintenance by the husband.

The complaint in this case sets up an alleged written contract of partnership between the plaintiff and the defendant concerning the obtaining of a mail contract and the carrying of mail between certain points in Alaska, Second division.

<p>Justices oe the Peace @=>152—Appeal—Pasties.</p> <p>A joint judgment in justice court was entered against several defendants. One of tbe defendants appealed tbe case to the district court, under the provisions of section 1827, Comp. Laws Alaska 1913. On motion to dismiss the appeal for want of jurisdiction, held that, while section 1827 provides that “either party may appeal from a judgment given in a justice’s court,” it does not authorize one only of several joint plaintiffs or defendants to appeal; that the phrase “either party” means either the plaintiffs or the defendants, whether joint or several; it means that either the plaintiffs or the defendants may appeal, but not one of several plaintiffs or defendants.</p> <p>(@^s>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In 1881, a man by the name of M. W. Murry filed a location notice, on a wharf site bn the Juneau water front, and shortly afterwards the miners in and around Juneau passed a resolution approving the location. In 1881 the construction of a wharf was begun; and in 1882 the wharf was completed. There is ho evidence that Murry built the wharf, or had anything to do with its building, or that any consent from Murry was obtained.

<p>1. Corporations <&wkey;513(l)—Action—Pleading.</p> <p>No corporation shall be permitted to commence or maintain any suit, action, or proceeding in Alaska without alleging and proving that it has paid its annual license iee, and an allegation in the complaint “that it has duly qualified and complied with all the laws relating to corporations in said district” does not meet the objection.</p> <p>2. Pleading <&wkey;193(l), 354(1)—Demurrer or Motion to Strike.</p> <p>Where a complaint does not allege the fact that plaintiff corporation has paid its annual license fee, the objection shall be made by demurrer and not by motion to strike the complaint.</p> <p>«g^See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Pleading &wkey;>367(2)—Motion to Make More Definite and Certain.</p> <p>Where the objection, to a complaint is that its allegations “are so indefinite and uncertain that the precise nature of the charge is not apparent,” the defect should be reached by motion to require the pleading to be made more certain and definite by amendment, and not by motion to strike the complaint</p> <p>4. Pleading <&wkey;352—Motion to Strike.</p> <p>A motion to strike the complaint, because several causes of action are attempted to be stated therein, denied, and the correct practice suggested. , •</p> <p>5. Contracts <&wkey;334—Pleading Consideration.</p> <p>Where a complaint merely alleges that plaintiff ren'dered defendant a bill for $1,100, and the defendant paid $300 and promised to pay the remainder, no cause of action is stated, because no consideration is alleged for the promise.</p> <p>•6. Pleading <&wkey;49—Complaint—Definite Theory.</p> <p>A complaint must proceed upon some definite theory, and must be good upon that theory.</p> <p><@=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Easements <&wkey;5—Prescription.</p> <p>There can be no question that, to establish a prescriptive right to easement, the user must have 'been open, continuous, and adverse, under claim of title or right, and with the knowledge and acquiescence of the owner of the servient estate.</p> <p>2. Adverse Possession <&wkey;58—Easements.</p> <p>Before title will be gained by prescription, there must be an invasion of the rights of the party against whom it is set up, and of such character as to afford him ground Qf action.</p> <p>3. Adverse Possession &wkey;>68, 85(1), 114(1)—Evidence.</p> <p>It is a well-established rule that the doctrine of adverse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption, it is said, is in favor of possession in subordination to the title of the true owner. The possession must be under claim and color of title, and exclusive of any other right.</p> <p><@=»See same topi£ & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This is' a common-law action for damages done to plaintiffs’ gasoline launch Uncle Sam by the steamship Dora, owned by the defendant, in the port of Seward, in December, 1912.

Criminal. This is an information brought by the distinct attorney to test the question as to whether the moving picture business comes under the head of theaters, within the meaning of section 2569 of the Compiled Laws of Alaska, which section reads as follows: “That any person or persons, corporation, or company prosecuting or attempting to prosecute any of the following lines of business within the district of Alaska shall first apply for and obtain license so to do from a…

The plaintiff, Alick Flyum, brought this case in the commissioner’s court for the Kvichak precinct in August, 1914, to recover wages. . Plaintiff alleges in his complaint that he worked for defendant as a laborer 30 days, for which defendant promised and agreed to pay him $3 per day; that he also worked 14 days catching fish; that during that time he caught 8,300 fish at 3%. cents, amounting to $290.50, and 10 king salmon at 10 cents each, making a total of $291.40.

In the case of Albert Meyer & Co., a Corporation, v. Sivertsen-Johnsen Mining & Dredging Company, a corporation, No. 2550, a writ of attachment was issued against the defendant on September 18, 1914, and executed by the marshal on September 21, 1914, under which he now holds a certain amount of gold dust.

The three above-entitled causes constitute three actions for the recovery of money due for services alleged to have been rendered by the plaintiffs to the defendants in connection with certain mining operations, and the plaintiffs seek to establish and enforce a laborer’s lien under the existing lien law of Alaska, as provided by sections 691-704, inclusive, Comp. Laws Alaska 1913, and chapter 79, Sess.

Plaintiff in this action seeks to foreclose certain liens for labor alleged to have been performed in the development and improvement of the Pioneer quartz mining claim. Plaintiff claims a lien for labor performed by himself and by several other laborers whose respective claims have been assigned to plaintiff.

<p>Maritime Liens <§=»9—Admiralty—Shipping.</p> <p>The libelant remained all winter on board the river steamer Florence S., at her berth in the ice in the upper Tanana river, as watchman. He filed a libel on the boat for his services. On exception, helé, a caretaker of a river vessel in winter quarters, when the vessel is not in commission, has no lien for his wages.</p> <p><@=3»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Statutes <&wkey;167(l)—Repeals by Revision.</p> <p>The doctrine that a statute is impliedly repealed by a subsequent statute revising the whole matter of the first does not apply where the revisory statute declares what effect it is intended to have upon the former, as where it provides that it shall repeal all inconsistent or repugnant acts. In such cases only such effect can be given to the revisory acts as it directs. The enumerated acts are repealed; the others remain in force.</p> <p>2. Municipal Corporations <&wkey;625—Courts—Police Powers.</p> <p>The defendant was convicted before the police court of Juneau as a vagrant and sentenced to serve a period in the town jail. On habeas corpus to the district court to test the legality of. the conviction and confinement, held, the police court of Juneau is a lawful institution. The town has power to pass bylaws and ordinances within the limitations of its powers; but these limitations must be impartial, reasonable, and not oppressive.</p> <p>3. Habeas Corpus &wkey;>4, 32—Appeal and Error.</p> <p>If a town ordinance or by-law is void, no conviction can be sustained under it, and an application in habeas corpus would be the proper method to be pursued by one suffering restraint by reason of a judgment of which it is the basis. If the ordinance is not void, and the person is in restraint because of a defective complaint or insufficient evidence, habeas corpus will not lie, the party’s remedy being by appeal or writ of review; for habeas corpus cannot be made to take the place of those remedies.</p> <p>4. Municipal Corporations &wkey;>120—Construction of Ordinances.</p> <p>Ordinarily the rigid rules by which the validity of penal statutes are to be tested are not applicable to the by-laws of municipal corporations. The by-laws of very few of these corporations could stand such test. They should receive a reasonable construction, and tbeir terms should not be strictly scrutinized, for the purpose of making them void.</p> <p><@=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Municipal Corporations &wkey;>120—Construction.</p> <p>A town ordinance will be construed according to its reason and spirit. A literal interpretation will be rejected, if such would defeat its purpose. In construction words will sometimes be rejected. Words of an ordinance are construed the same as words of a statute. The legislative intent will control the construction of the word in an ordinance, though the word is inappropriate.</p> <p>(@=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This action is before me on a demurrer to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendants or either of them.

<p>Abatement and Revival <&wkey;81—Plea in Abatement—Tuns on Filing.</p> <p>A plea in abatement comes too late when interposed after a general demurrer.</p> <p>same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

On January 20, 1908, a patent for a fraction less than 160 acres of land, situate on the shore of Resurrection Bay, near Seward, Alaska, and designated as United States survey No. 241, was issued to the defendant Poland, under laws of the United States relating to soldier’s additional homesteads.

The complaint in the above-entitled action was filed in this court on the 4th day of September, 1914. Summons was duly issued by the clerk of the court, and thereafter, on the said 4th day of September, 1914, Robert E. Willis, designated as a citizen of the United States over the age of 21 years, made the return on said summons, under oath, as provided in chapter 21 of the Session L,aws of Alaska of 1913, page 29, which is as follows: Chapter 21.

The plaintiff, a corporation organized under the laws of the state of Oregon, brings this action to collect some $600 from the defendant, for goods, wares, and merchandise sold defendant by one of plaintiff’s traveling salesmen in Alaska.

The plaintiff in his complaint alleges that he was, on the 25th day of October, 1913, the owner and entitled to the possession of that certain lot, piece, or parcel of placer mining ground situate on Ester creek, a tributary of Cripple creek, in the Fairbanks precinct and recording district, Fourth judicial division of Alaska, known and described as the lower or downstream 900 feet in length by 597 feet in width of placer mining claim No. 7 below Discovery, first tier, left…

<p>1. Navigable Waters <S=>43(2)—Wharves—Right to Construct.</p> <p>The upland owner in Alaska has the same right of free and unobstructed access to navigable waters in front of his lands, and in the same way, as the abutter on any other highway; and he has thei right to construct a wharf between his land and deep water, to facilitate his access to and from the navigable waters, and for wharfage purposes.</p> <p>2. Navigable Waters <@=>39(3)—Littoral Rights—Access.</p> <p>The upland owner’s right of access from his land to the navigable waters across the foreshore is only an easement for use in facilitating such access. If he has no use for the access, the mere right of access is ineffective. • ,</p> <p>3. Navigable Waters <@=43(4)—Obstructions—Injunction.</p> <p>If the owner of upland abutting on navigable waters in Alaska has other and equally convenient means of access to it, and will not suffer any material damage by the alleged obstruction, equity will not interfere.</p> <p>4. Navigable Waters <§=>39(2)—Tidelanbs—Littoral Rights.</p> <p>Before an owner of uplands abutting on the navigable waters in Alaska can prevent others from using said lands he must show: (1) That he is the littoral proprietor; (2) that he desires tó use the tidelands to get to deep water; (3) that the use contemplatecl to be made, and tbe method of availing himself of the use, is reasonable; (4) and that the access is being interfered with.</p> <p><@=s>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Navigable Waters ®=39(3)—Streets—Tidelands.</p> <p>Where the town of Juneau laid out a street on the inshore edge of the tidelands, next to the upland owner’s boundary line, and raised and planked it above high-water mark, but without acquiring any right thereto from the upland owner, or without any dedication or his consent in any way, such street did not cut off the upland owner’s littoral right of free and unobstructed access to the navigable waters in front of his land and across said street and tidelands.</p> <p>6. Navigable Waters <®=>43(4)—Injunction—Tidelands.</p> <p>The plaintiff’s right of access not being limited to the right of mere physical passage over the tideland, but embracing also the right to use the foreshore in such way as may be needed for the complete and innocent enjoyment of that right, it follows that he is entitled to an injunction against any interference with that right.</p> <p><@zs>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This is an action in ejectment. The facts as set forth in the pleadings are briefly as follows: On the 8th of March, 1913, the plaintiff herein filed his complaint in this action with the clerk of the court.

Bankruptcy. In this matter a petition was filed by certain creditors seeking to have one P. F. Gilmore adjudged a bankrupt. The petition was filed on November 27, 1914, and it alleges, in substance, that on July 28, 1914, the said P. F. Gilmore transferred, conveyed, and concealed his property with the intent to hinder, delay, and defraud his creditors. The petitioning creditors appeared by their attorneys Messrs.

The libel herein was filed by William Bell on the 14th day of September, 1914. Thereafter L. W. Rowe, Paul Dougherty, R. E. Leber, S. E. Nelson, and E. J. Smythe, by leave of court first had and obtained, according to the rules and practice in admiralty, were joined as parties libelant with the libelant William Bell.

This is an action to foreclose laborers’ liens upon the Pioneer quartz mining claim situate at the head of Fairbanks creek, in the Fairbanks recording precinct; the plaintiff claiming a lien on behalf of himself for labor performed in the development of said Pioneer quartz mining claim, and also as the assignee of six other lien claimants.

The plaintiff, as the successor in interest of the defendant Alaska Central Railway Company, claims that the defendant John E. Ballaine, in and prior to the year 1905, was the “duly elected, qualified, and acting director, officer, and trustee of the said Alaska Central Railway Company, and was in possession, either personally or by those under his immediate control and direction, of large sums of money belonging to the said Alaska Central Railway Company,” and that while so…

<p>Divorce <§=>27(3)—Husband and Wife.</p> <p>Plaintiff, the husband, brought suit for divorce upon the ground of “cruel and inhuman treatment calculated to impair health or endanger life.” The evidence disclosed that the defendant treated the plaintiff with indifference and her domestic duties with neglect, and for many years grievously failed to perform her marital obligations, and has tested the plaintiff’s patience and temper almost beyond endurance. These facts, how- . ever, do not constitute “cruel and inhuman treatment calculated to impair health or endanger life” of the husband. Divorce denied, and complaint dismissed.</p> <p><@=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Territories <@=>20—Le&islative Limitations—Process—Statutes —Summons.</p> <p>Congress, in Act June 6, 1900, c. 786, § 45, 31 Stat. 339, provided that summons in actions in Alaska “shall be served by the marshal or any deputy, or by a person specially appointed by him or by the court or judge thereof.” The Legislature of Alaska (Sess. Laws 1913, p. 29), amended that section by providing that summons might also be served “by any person over the age of twenty-one years who is competent to be a witness in the action.” In the Organic Act (Act Aug. 24, 1912, c. 387, 37 Stat. 512), creating the Legislature, its powers were limited :by Congress by a proviso in section 3: “And the Legislature shall pass no law depriving the judges and officers of the district court" of Alaska of any authority, jurisdiction, or function exercised by like, judges or officers of District Courts of the United States.” Sold,. the amendatory act of 1913, so passed by the Legislature of Alaska, is in conflict with the Organic Act, and is void.</p> <p>(See Currier v. Mihalcik, page 251, ante, where the court in the Fourth division holds contrary.)</p> <p><g=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

The Chugach Forest Reserve, covering the land in controversy in this case, was created as provided by law the 23d day of February, 1909. On May 8, 1910, the defendant, Jeter, according to his own testimony, first went upon this land. On October 20, 1910, he put up a small cabin, since which time he claims to have resided upon the land, leaving, however, at intervals to earn money to enable him to continue to live thereon.

<p>Interpleader <&wkey;>S(2)—Parties.</p> <p>Where two or more persons, whose titles are connected by reason of one being derived from the other, or of both being derived from a common source, claim the same thing, debt, or duty by different or separate interests, from a third person, and he, not knowing to which of the claimants he ought of right to render the debt or duty, or to deliver the thing, fears he may he hurt by some of them, he may maintain a suit and obtain against them the remedy of interpleader.</p> <p><j&wkey;See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bail <&wkey;43—Criminal Law—Rape.</p> <p>The defendant was held to answer on the charge of carnally knowing an Indian girl under 16 years of age. The committing magistrate refused to admit him to bail, and defendant appealed to the district court judge to fix bail bond. The statute (section 2314) provides that the defendant cannot be admitted to bail where the offense charged is rape, and “where the proof or presumption of his guilt is evident or strong.” HelH, the proofs offered in this case are not considered of such character as to justify refusal of bail. Defendant admitted to bail.</p> <p><S=»See same topic & KEY-NTJMBER. in all Key-Numbered Digests & Indexes</p>

By act approved April 29, 1915 (Sess. Laws 1915, p. 185), the Legislature of Alaska provided as follows: “Section 1. That any person, firm or corporation prosecuting or attempting to prosecute any of the following lines of business in the territory of Alaska shall apply for and obtain a license and pay for said license, for the respective lines of business as follows: * * * 8. Fish traps, fixed or floating, $100.00 per annum.

The complaint in this suit alleges in substance: (1) That the Tongass Forest Reserve is, and was at all times in the complaint mentioned, situated wholly within the First division of Alaska. That at the time of filing the complaint there had accumulated from the sale of government timber situated in such reserve a certain sum, 25 per centum of which was $52,968.17.

This is a suit to foreclose a mortgage dated August 8; 1914. It purports to secure an indebtedness of $3,061.20, bearing interest at 10 per cent, per annum from date until paid, according to the terms and conditions of a certain promissory note executed by the defendant corporation to the plaintiff herein as trustee for the respective parties named in the complaint. The case came on for trial at the special June, 1915, term of court at Iditarod on the 15th day of July, 1915.

This suit was brought to restrain trespass upon the Broken Snowshoe Association placer mining claim and to recover damages for injuries to the same by the defendant.

The amended complaint makes the following allegations: (1) That on July 30, 1915, and for some months previous thereto Mrs. Whipple was the owner of lot 5, block 28, of the city of Juneau. (2) That prior to July 30, 1915, she had appointed B. L. Thane as her attorney in fact to bargain, sell, and convey said premises.

In this case the plaintiff corporation alleges that in September, 1914, it desired to ship a mixed carload of potatoes and onions from Seattle, Wash., to McCarthy; that the station agent of defendant railway company at McCarthy informed plaintiff that the rate on said freight would be $39.30 per ton; that, upon arrival of said freight at McCarthy, plaintiff was informed by said agent that the rate quoted was a mistake, and he was charged and compelled to pay, and did pay,…

This case comes into this court on appeal from a judgment made and entered in said action by James Frawley, commissioner and ex officio justice of the peace in the Cape Nome precinct, on September 15, 1915, in favor of the defendant (the respondent herein) and against the plaintiff (the appellant herein), dismissing the plaintiff’s cause of action and awarding costs to the defendant.

This action was commenced on April 29, 1915, by the plaintiff, the Alaska Northern Railway Company, as successor in interest to the Alaska Central Railway Company, claiming to be the equitable owner of about 159 acres of land, known as tfié^’tówñ srfé“df“Sewárd, which it alleges the defendants, John E. Ballaine and Frank R. Ballaine, acquired in their own names, but in trust for the Alaska Central Railway Company.

The trial of this action was begun at the special July, 1915, term of court at Iditarod, before the court, without a jury. Testimony was introduced by both the plaintiff and the defendants, and upon stipulation of counsel the trial was continued to the special term of court at Ruby, adjourned to August, 1915.

Ordinance No. 97 of the town of Ketchikan is as follows: “An ordinance providing for a license tax on transient business carried on within the town of Ketchikan. “The common council of the town of Ketchikan does ordain: “Section 1.

Valdez Bay is about 12 miles in length and about 3 miles in width. It is entirely surrounded by high mountains rising precipitously from the water’s edge except in a few places where some stream or valley between the mountains has formed a flat or gravel bar. Valdez is situated on such a flat, 3 or 4 miles in width and running back about 4 miles to the face of the Valdez Glacier.

<p>1. Territories &wkey;>19—Legislature—Length oe Session.</p> <p>The Organic Act of Alaska provides the Legislature shall not continue in session longer than 60 days in any 2 years. The Legislature met at noon on March 1st, and continued in session until it adjourned “between 3 and 4 o’clock a. m. (sun time) on April 30th.” Held, it did not continue in session longer than 60 days; for the full period of 60 days did not expire until noon of the sixtieth day—that is, noon of April 30th.</p> <p><@3»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Statutes <&wkey;55—Validity op Territorial Act—Fish—Taxation.</p> <p>The act of the Legislature of Alaska imposing a tax of $100 per annum for each fish trap operated during the year, and an additional license fee per case on any person engaged in canning fish, is within the power conferred by Congress in the Organic Act creating the Legislature, and is a valid exercise of legislative power.</p> <p><@=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Depositions <&wkey;64(4)—Witnesses—Compelling Answer.</p> <p>Wliere a party lias been subpoenaed by tbe opposite party for tbe purpose of taking bis deposition under Comp. Laws 1913, § 1476, be may be compelled to answer those questions wbicb are relevant and material to the issues to be established by the party taking the deposition, but not those which are immaterial or irrelevant, or which are more properly propounded on cross-examination, when the witness puts in his own case.</p> <p><@E»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Plaintiff has brought forcible entry and detainer against defendant, alleging “that for the past year or more plaintiff has rented certain premises to defendant under a tenure of month to month, for the monthly rental of $20, payable in advance on the 6th day of each and every month”; that default has been made in the payment of rent; that notice to quit was duly served; that defendant unlawfully holds over after the default in the payment of rent; that plaintiff is entitled…

This is a hearing on a writ of habeas corpus. By the answer filed, which may be taken as the return provided by statute, the cause or justification of the detention is declared to be the following: (1) That the offense of being accessory to a felony was committed by petitioner, in violation of section 187, Alaska Criminal Code. (2) That petitioner was regularly charged with that offense.

These cases, involving substantially the same pleadings and evidence, were consolidated for purposes of trial. The actions, are suits in admiralty to establish and foreclose an alleged maritime lien. They are for the price of two winches, which, were by libelants sold and delivered to Carlson Bros., a firm of ship builders and repairers, and were by them placed upon, and used and are a part o.f the vessels aforesaid.

The complaint alleges in substance as follows: Appointment September 16, 1914, by a Washington court, of S. T. Hills and E. Schoenwald as receivers of the Pacific Coast & Norway Packing Company, a Minnesota corporation; general assignment October 26, 1914, by said company to said Schoenwald and Hills, as receivers and assignees, of all the company’s property in the territory of Alaska (including the gasoline boat Bernice), “voluntarily and of its own free will and accord,”…

This is an action by Edward Olsen against Sarah Olsen for absolute divorce, the plaintiff alleging cruel and inhuman treatment and adultery as the causes therefor.

This is an action to quiet title to certain placer mining claims •known as Nos. 5 and 6 below Hannum Creek on the Immachuk River. The plaintiff claims under locations made in 1911; defendant claims under locations made long prior to 1908.

<p>Witnesses @=>308 — Criminal Law — Incriminating Evidence — Grand Jury.</p> <p>Witnesses called before a grand jury, and shown to have been present in a room when alleged acts of gambling at cards took place there, refused to answer questions relating thereto upon the ground that their answers would tend to convict them of crime. The grand jury reported the facts to the judge, who cited the witnesses, and after a hearing ordered each of them to answer the stated questions. On being recalled before the grand jury, each refused to answer as before. They were then cited for contempt of court. Held, the true rule in such cases is that stated in Ex parte Irvine (C. C.) 74 Fed. 954. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain necessary to convict him of a crime.</p> <p><S=>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Release <§=29(4)—Parties—Actions—Torts.</p> <p>Plaintiff brought suit to recover the value of furniture -wrongfully taken from him by the defendant. The latter answered that, if liable, he was jointly liable with three other persons; that the plaintiff had released them, whereby the defendant was also released. Held, the rule is, where one or more tort-feasors pays a valuable consideration for a release from liability, the person injured reserving the right to sue the other wrongdoers, the amount paid by the party released extinguishes pro tanto the amount of damages, but does not release the other wrongdoers from liability.</p> <p>(@s»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

On the 24th of March, 1916, both parties hereto were engaged in constructing fish traps in the navigable waters of the United States in a small indentation locally known as Ground Hog Bay. On that day plaintiff brought this suit to obtain a decree enjoining the defendants from interfering with it in the construction of its fish trap, and on March 27th, on an ex parte application, it procured an order herein restraining the defendants from doing certain things.

The plaintiff and defendant were married at San Diego, Cal., in 1891, and have three children. The defendant and her children as born have ever since resided at San Diego. Early in the year 1913 the plaintiff began a divorce action in the state of Washington, and had presumably acquired a legal residence therein, for in June, 1913, he secured a decree of divorce from defendant in said action.

On March 3, 1891, Congress passed an act entitled “An act to repeal the timber culture laws,” the fifteenth section of which act reserves “that body of lands known as Annette Islands” for the use of Metlakahtla Indians and others therein' named.

<p>1. Judgment <&wkey;570(5)—Estoppel—Dismissal Without Prejudice.</p> <p>Where a cause of action is dismissed for a failure of proof only, and not going to the merits of the cause of action, it will be treated as a dismissal without prejudice and will not constitute a bar to the same cause of action in a subsequent suit.</p> <p>2. Judgment <&wkey;720—Estoppel—Res Judicata.</p> <p>In a second controversy between two parties, if the cause of action be the same as it was in the first controversy, the judgment is an estoppel both as to all things that were litigated and of things that might have been litigated; but if the cause of action is not the same, then the judgment in the former action is an estoppel only upon those matters in issue or points controverted, upon the determination oí which the finding was rendered.</p> <p>¡&wkey;>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Injunction <&wkey;136(2)—Fish Traps—Location.</p> <p>Where plaintiff first lawfully located and constructed a fish trap in the waters of Alaska, and the defendant thereafter attempted to locate and construct another within a distance prohibited by law, the construction of the second trap will be enjoined at the suit of the plaintiff whose lawful trap is injured in its operation thereby.</p> <p>4. Injunction &wkey;>136(2)—Fish Traps.</p> <p>A. located a fish trap site in the waters of Alaska, and had begun the actual physical erection of a pound net or fish trap thereon in compliance with law, and had the same virtually completed and ready for fishing, when enjoined at the suit of B. on an ex parte application. Thereupon B. began the erection of a similar pound net or fish trap within a distance from A.’s trap prohibited 'by the statute. On a subsequent suit, brought by A. against B. to enjoin the completion of B.’s trap, held, B. could not, by tying A.’s hands in the first suit, make the structure erected by him within the prohibited distance a lawful one. B.’s trap is an illegal structure, which causes special injury to A., and gives him a right to an injunction both mandatory and preventive.</p> <p>&wkey;5See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Juey <&wkey;29(2)—Waives—Habeas Corpus.</p> <p>The plaintiff in this proceeding was arrested for maliciously breaking the fence of another. He waived a trial by jury and was tried by the justice, who found him guilty and imposed the penalty fixed by statute. He then brought habeas corpus to test the legality of his conviction on trial without a jury, notwithstanding his waiver, contending that section 2527, Compiled Laws Alaska 1913, which specially authorized the waiver and summary trial without jury, is in violation of the last clause of section 2, article 3, XJ. S. Const. Held, the offense for which the defendant was found guilty is not a petty misdemeanor, but a crime of a serious character, and may be punished by imprisonment for a year. The conviction is therefore in conflict with the provision of the Constitution and void. The jury trial in such cases cannot he waived, notwithstanding the act of Congress authorizing it. The applicant is illegally held, the writ is sustained, and the prisoner discharged.</p> <p>c@=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This is an action for the foreclosure of a miner’s lien asserted by the plaintiff against those certain lode claims of the defendant company, lying contiguous one with the other, and known and described as the North Star and Lucky Queen lode claims, being worked as one mine and known as the “Bartell’s Tin Mine,” and more fully described in the complaint herein. Plaintiff claims that on the 17th day of January, 1915, said Empire Tin Mining Company, by and through one Geo.

In this case the plaintiffs seek to enjoin the defendants herein, their officers, agents, and servants, and each of them, from selling or causing to be sold, any of the personal property mentioned and described in a certain notice of sale given by the defendant the United Loan & Trust Company, Incorporated, as substituted trustee, dated May 27, 1916, and published in the Nome Weekly Nugget, which sale was, in said notice, advertised to take place on July 6, 1916, at 11…

This cause comes up at this time upon the order of this court to the defendant to show cause, if any it has, why an injunction should not be issued in the above-entitled action enjoining the defendant and all persons in privity with it from mining upon or extracting gold or gold-bearing gravel from or upon the mining claim described in plaintiff’s complaint during the pendency of this action and until the title to said mining claim can be lawfully adjudicated.

This action is brought by the plaintiff to recover from the defendants upon a redelivery or forthcoming bond given by the defendants to the United States marshal to secure the surrender of the possession by said marshal of certain property of the defendant A. Wittenberg that had been attached by the plaintiff herein in an action brought by him in this court upon the 18th day of September, 1913, against the said A. Wittenberg.

The petitioner was accused of selling intoxicating liquor without a license, in violation of section 2581, Compiled Taws of Alaska, which reads: “That any one engaging in the sale of intoxicating liquors, as specified in this act, in the district of Alaska, who is required by it to have a license as herein specified, without first having obtained a license to do so as herein provided, or any person who shall engage in such sale in any portion of the district where the sale…

Prior to 1898 Little Koniuji Island, near Unga, Alaska, had been leased by the Secretary of the Treasury of the United States for the sum of $100 per annum for the purpose of raising foxes. After 1900 it seems the government no' longer required the payment of any rental.

Plaintiff brings this action to compel specific performance of an alleged contract, based upon certain telegraphic correspondence between the plaintiff and defendant. The plaintiff, now and on the 9th day of February, 1915, was a resident of Seward, Alaska.

The plaintiff and defendant both claim the same fish trap site near the shore, on the east side of Kenai Peninsula, between Ninilchik and Kasilof, on the waters of Cook Inlet.

Plaintiffs bring this action for an injunction to restrain defendant from dumping tailings and débris from their placer mine on Crow creek, a tributary of Glacier creek, upon plaintiffs’ placer ground on said last-named creek, which runs into Turnagain Arm. Plaintiffs claim to own 17 placer claims, aggregating about 340 acres. Defendant owns a number of placer claims, which it is working quite extensively, above plaintiffs’ ground.

<p>Easements <g=»42—Beseevation of Bight of Wat.</p> <p>Tbe defendant purchased land from plaintiff, and in the contract for conveyance it was agreed: “It is expressly provided, however, that in event of necessity that Boston Group Gold Mining Company shall have a right of way over the westerly part of the above-described tract to reach its mining property.” On suit brought by plaintiff to prevent the defendant from obstructing a road existing across said tract, held the contract is not for any particular road, but for a right of way, the right to make a road. Before the transfer of the land the plaintiff owned both the land and the road thereon. It had no easement therein, but the jus disponendi thereof. After the transfer it had only the reserved right to build a road across the property when the necessity shall arise. No proof is made of the necessity, and the action is dismissed without prejudice.</p> <p><@3»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

The original bill filed in this action on the 6th of July, 1914, sets forth separately five causes of action against the defendant.

<p>Criminad Daw &wkey;>369(2)—-Evidence—Other Oeeenses.</p> <p>On tbe trial of the defendant, charged with murder of one Plunkett, the United States offered to introduce evidence of prior mysterious disappearances of men last seen with the defendant, and of certain crimes committed by the defendant in connection with said other disappeared persons. Held, to make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish. The evidence offered cannot be so connected with the charge against the defendant, and is denied.</p> <p><@=3See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

The act of the territorial Legislature of Alaska approved April 29, 1915, commonly called the Workmen’s Compensation Act (chapter 71, Session Laws of Alaska 1915), provides for the measure and recovery of compensation for injured employés in the mining industry of Alaska.

Cr. The defendants herein were indicted at the special July, 1916, term of the district court at Ruby, Alaska, for a violation of the eight-hour law of Alaska (chapter 29 of the Session Laws of Alaska for 1913, as amended by chapter 6 of the Session Laws of Alaska for 1915). On motion of the attorneys for the defendants, the United States district attorney consenting thereto, the case was transferred to Fairbanks.

This is an action for divorce under the fourth and fifth provisions of section 1299 of the Compiled Laws of Alaska. For a first cause of action the plaintiff alleges desertion on the part of the defendant in that, as a culmination of a tempestuous married life for several years, the defendant ordered the plaintiff, on or about the 4th day of September, 1907, to leave her, and that since said date plaintiff and defendant have not lived together.

<p>1. Bankruptcy <&wkey;ll—United States District Court tor Alaska —Jurisdiction.</p> <p>Tlie general equity jurisdiction of the United States district court for Alaska is not to be confounded with the equity jurisdiction of the United States district court for Alaska in bankruptcy. These courts have one and the same name, but they are created. by separate and distinct acts of Congress (and said acts were passed in pursuance of constitutional powers entirely different from each other). Each court has its own jurisdiction and its own method of procedure.</p> <p>2. Evidence &wkey;>40, 44—Judicial Notice.</p> <p>Courts will take judicial notice of the power of a bankruptcy court to appoint a receiver, and will assume that the appointment was regularly made. The court knows the nature and extent of his powers when appointed, for these are matters of “public law.” The court is bound to know that, although a receiver has no title to property in the sense of ownership, yet that he is held to the performance of certain duties and clothed with power to perform those duties. The court is bound to ■ know that it is the duty of such receiver to collect, protect, and preserve all the property of the bankrupt, so that it may be delivered to the trustee when appointed, and that, if he is remiss in his duties, he is liable on his bond.</p> <p>3. Bankruptcy &wkey;>115—Receiver—Powers.</p> <p>A receiver in bankruptcy may sue out an attachment, or bring an action to prevent the statute of limitations from running, or sue at law to recover any debt or personal property which might be lost, and certainly, if the interposition of equity is necessary to enable him to prevent loss or waste of assets, he has the right to bring a suit for that purpose.</p> <p><@3^See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This case is before me upon a motion to dissolve the temporary injunction heretofore issued upon application for an order against the defendants to show cause why an injunction should not be issued restraining defendants from doing certain acts alleged in the complaint.

Petition by the Territory of Alaska, on the relation of Charles A. Snlzer, for an alternative writ of mandamus against the Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh. On demurrer to answers. Demurrer sustained.

<p>Banks and Banking <&wkey;253—National Banks—Liability of Officers.</p> <p>In an action by a national bank against one of its directors to recover damages claimed to have been caused to the bank by excessive loans and other illegal dealing with the moneys of the bank, in violation of the provisions of the National Banking Act (Act June 3, 1864, c. 106,13 Stat. 99), the defendant director will be permitted to show the nature and origin of the entire transaction ; that at the time the acts complained of were done he was a nominal director only, but other officials were in charge of the bank’s business and funds, and loaned or otherwise disposed of the amounts in controversy, without his knowledge or consent. Held, defendant neither knew of the violations charged, nor was he a party to the same. Case dismissed.</p> <p><@=^>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Plaintiff herein sued out a writ of review under chapter 55 (§§■ 1374-1383) of the Compiled Laws of Alaska of 1913, for the purpose of having reviewed and set aside a certain judgment heretofore rendered by E. A. Rasmussen, United States commissioner and ex officio justice of the peace at Skagway, against the plaintiff herein, at the suit of W. B. Hargraves.

About 5 o’clock on the morning of December 17, 1913, the steamer Alameda made an attempt to land at the Valdez dock. The wind was blowing a gale and shifting, so that (the practically undisputed testimony shows) it became necessary to drop the starboard anchor to avoid coming into collision with the wharf, to the possible injury of those thereon. This maneuver was not successful in effecting a landing.

<p>1. Bastards <&wkey;3—Evidence—Presumption oe Begitimacy.</p> <p>When a marriage is once proven or admitted, there is a presumption of law well-nigh conclusive that any child born during that marriage is legitimate. So strong is this presumption that it cannot be overcome, except by clear and convincing proof that the husband has had no access to the wife at' the period of time at which by the laws of nature the child must have been begotten.</p> <p>2. Marriage &wkey;>51—Evidence—Jury.</p> <p>Where the evidence was offered by two Indian women, relatives of the alleged wife, who was an Indian woman also, that a white man took the alleged wife to his home and agreed to live with her as his wife, and by whom he had a child during such period, held, the question whether the facts amounted to a common-law marriage is for the jury.</p> <p>tgssSee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Marriage @=47—Evidence—Bastards.</p> <p>If marriage be proved or admitted, declarations of the parents will not be admitted to defeat the consequences of marriage, as that the children are bastards; but, where the question is marriage vel non, the declarations of the parties themselves, if deceased, that they were or were not married, provided that they were made ante litem motam, are admissible evidence of the fact declared.</p> <p>4. New Trial @=3o—Evidence—Exclusion.</p> <p>On the question of the legitimacy of- one who claimed as the legitimate daughter of a deceased father, evidence offered by witnesses of the declarations of the mother and the putative father was rejected. On motion for a new trial, held, the court should have allowed the testimony of the witnesses as to the declarations of the putative father and the mother to go to the jury under proper instructions. New trial granted.</p> <p><§=s>See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Licenses <§=>11(1)—Corporations—Transfer Companies.</p> <p>Defendant refused to pay a license to do business as a “transfer company,” claiming that the law applied only to associations, partnerships, and corporations, and not to individuals. Held, that the words “transfer companies” must be construed with reference to the first descriptive words in the sentence, “That any person or persons, corporation or company prosecuting or attempting to prosecute any of the following lines of business,” and, being so construed and considered, they shall be deemed to include an individual. The license tax was laid on the occupation or business, rather than on the person or class of persons engaged in the business.</p> <p><@=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

An information was filed by the United States district attorney against the above-named defendant, the Valdez Brewing & Bottling Company, charging it with engaging in the sale of intoxicating liquors at wholesale without obtaining a license so to do.

In this case the plaintiff (bailor) sues the defendant (bailee) for conversion relative to a package of money sent to defendant for deposit. Some time in December, 1916, or January, 1917, the exact date is immaterial, the plaintiff mailed a package of money, at Taylor, Alaska, addressed to the defendant, the Alaska Banicing & Safe Deposit Company, at Nome, Alaska, which package of money according to prevailing evidence was intended for general deposit.

On the 28th day of December, 1916, plaintiff (respondent) recovered a judgment in the justice’s court against defendant (appellant) for $328.85, interest, and costs. On the 23d day of January, defendant, having served and filed notice of appeal, gave the undertaking for costs of appeal as provided by statute. The file marks on the “transcript of the cause” purport that the same was filed in the office of the clerk of this court on June 2, 1917.

On April 29, 1915, the Alaska Northern Railway Company, defendant herein, commenced an action against plaintiff, Frank L. Ballaine, and his brother, John E. Ballaine, and others, claiming that the said plaintiff and his brother held title to a large number of lots in the town of Seward, Alaska, in trust for the said Alaska Northern Railway Company.

The above-entitled action was tried at Seward and judgment rendered in favor of plaintiff against the defendant on the 1st day of December, 1915. Appeal was taken by the defendant to the Circuit Court of Appeals, and on the 8th day of January, 1917, the case was decided in the Circuit Court of Appeals. 238 Eed. 341, 151 C. C. A. 357.

Jennie Young filed her petition herein, alleging that the United States marshal, in the execution of a writ of ejectment in cause No. 1181, entitled Lucy Lindeman v. Jimmie Young, had dispossessed her of some real estate of which she (petitioner herein) is, and was at the time of the commencement of said ejectment action, the owner, and of which, at said time, she was in the actual, open, and notorious possession, occupying and holding the same “in her own right, title, and…

September 16, 1910, the plaintiff, at the request of A. J. Wendler, who was president and manager of the Valdez Brewing & Bottling Company, loaned said company the sum of $1,000, payable one year after date, with interest. The note was signed by said company, by A. J. Wendler, its president and manager, also by A. J. Wendler, individually, and J. C. Deiringer, who was secretary of the company at that time.

Defendant pleads res judicata in bar of plaintiffs’ action. A former suit between the same parties over the same subject-matter was tried by this court and determined in favor of the plaintiffs, and decree entered that defendant be required to convey to plaintiffs an undivided one-fifth interest in mining claims owned by him. An appeal was taken by defendant, the decree reversed, and the cause remanded, with instructions to dismiss the case, which was done. 236 Fed. 120.

Protestant objects to the payment of special tax for street improvements for the year 1915, assessed against his lot No. 13, in block No. 10, town of Seward: First, because he claims that one Mantell, who was the contractor for the city and put in concrete sidewalk in front of his lot and other lots in said town, had entered into a contract with protestant in his. individual capacity, and not as agent or contractor for the city, to make certain excavation under the sidewalk…

This is an action in ejectment, to recover possession of two lots in the town of Seward. By stipulation it was tried before the court without a jury.

The question here is whether an appeal will lie from the assessment for taxation of real estate made by the city council of an Alaska municipality to the district court.

John Oscar Johnson was killed in a shaft of the Ellamar mine at Ellamar, Alaska, on or about the 1st day of July, 1916.

Suit by L. A. Sundquist against Ed. Halloran and others, copartners doing business as No. 19 Bench Company, and also as individuals, for an injunction. Decree granting injunction.