C. A. A. McGEE LIBRARY THE UNIVERSITY OF CALIFORNIA SANTA BARBARA PRESENTED BY Westwick and Collison C. A. A. McGEE NOTES ON THE UNITED STATES SUPREME COURT REP(»RTS SUPPLEMENTARY TO ROSE'S NOTES OX UNITED STATES REPORTS, SHOWING THE PRESENT AUTHORITY OF EACH CASE AS DISCLOSED BY THE CITATIONS FOUND IN ALL THE REPORTS, BOTH FEDERAL AND STATE, SINCE JULY 1, 1904, WITH PARALLEL REFERENCES TO AMERICAN STATE REPORTS AND THE REPORTER SYSTEM. BY CHAS. L. Tno:\rpsoN, OF THE SAN FRANCISCO BAR. SUPPLEMENT FOUR. SAX FRANCISCO: B A N C R F T - W H I T N E Y C 0., Law Publishers and Law Booksellers. 1909. Copyright 1909, BY BANCEOFT-WHITNEY COMPANY. LIBRARY UiMVERSITY OF CALIFORNIA SAxMA BARBARA PREFACE. These two volumes of citations to the decisions in the United States Supreme Court Reports have accumulated since the publication of the last supplemental volumes to Rose's Notes on United States Reports. The thirty-five thousand citations contained herein have been treated under the same plan fol- lowed by Mr. Rose in the original work. As in the preceding supplemental volumes, the syllabi contained in the original notes have been condensed to one line, with references to the exact volume and page in the original notes where the par- ticular point is to be found in Rose's Notes. The original syllabus is referred to by volume and page of Rose's Notes, and the number of the particular syllabus there- in which is annotated, thus : On page 853 of Book Three of Rose's Notes w411 be found syllabus 8 of the case of Bagnell v. Broderick ; therefore, that syllabus is referred to as follows : *'Syl. 8 (III, 853). Patent is conclusive of legal title." In these supplemental volumes only cases which have been cited since the preparation of the last supplements are to be found. If a case is not referred to here, it is because at the time of the preparation of this work it had not been cited. Those eases which have not been cited have been omitted. As volumes 172 et seq. of the United States Supreme Court Reports were published after Rose's Notes, the cited points in these volumes are contained in a one line index reference with the page in the Supreme Court Report on which the point is discussed.' CHAS. L. THOMPSON. San Francisco, December, 1908. (iii) THE CITATIONS IN THIS BOOK include all from the followinfi: Reports and all jjreceding tliem in each state or series since July 1, 1904: Mo. App 118 Mont 3:^ Xob 70 Nev 28 N. II 73 N. J. Kq C9 N. J. L 72 N. M 11 N. Y 183 N. C 140 N. D 13 Ohio 74 Okl 16 Or 47 Pa 2ir, E. T 27 S. C 74 S. D 18 Tenn 115 Tex 9s Tex. Cr 46 Tex. Civ 36 Utah 29 Vt 78 Va 105 Wash 42 W. Va 58 Wis 128 Wyo 14 Am. St. Eep 113 with duplicate references to the Reporter System and to L. R. A. (V) u. s 202 L Ed 50 Fed 150 Ala 144 Alaska o Ariz 7 Ark 78 Cal 148 Cal App 2 Colo 34 Colo. App 20 Conn . . . . 78 Del Fla ...4 P( ■nncwill . . . . 50 Ga 126 Idaho 11 Ill 224 Ind 165 Ind. App . 36 Iowa , 130 Kan 72 Kv 119 La 116 Me 101 Md 103 Mass Mich 191 144 Minn 97 Miss 87 Mo , . ... 197 II DALLAS. 2 Dall. 402-409, 1 L. 433, GEORGIA v. BRAILSFOED. Sy]. 3 (I, 10). Requisites of bill for preliminary injunction. Approved in Camors-McC'onnell Co. v. McConncll, 140 Fed. 418, enjoining dcfendrunt from violating contract not to engage in certain business; Hoy v. Altoona etc. Oil Co., 136 Fed. 485, granting pre- Jiminary injunction where recovery of shares of stock alleged to have been obtained through fraud; Harriman v. Northern Sec. Co., 132 Fed. 478, granting preliminary injunction to prevent violation of anti-trust act by merger of corporations in new corporation. Syl. 5 (I, 10). State's suit through governor. Approved in dissenting opinion in Henry v. State, 87 Miss. 94, 39 So. 884, majority holding under constitution governor cannot sue in name of state. 2 Dall. 4 19-480, 1 L. 440, CIIISHOLM v. GEORGIA. Syl. 1 (I, 13). Suability of state. See 108 Am. St. Rep. 832, note. Syl. 4 (I, 15). Jurisdiction of federal courts limited. Approved in Clark v. AUaman, 71 Kan. 215, 80 Pac. 575, determin- ing applicability of common-law rules relating to riparian rights. Syl. 8 (I, 16). Service of subpoena in state's suit. Approved in dissenting opinion in Henry v. State, 87 Miss. 94, 95, 39 So. 884, majority holding under constitution governor cannot sue in name of state. A £1] Ill DALLAS. 3 Dall. 6-16, 1 L. 485, GLASS v. THE SLOOP BETSEY. Syl. 2 (I, 18). District court's admiralty jurisdiction. Approved in Arnold v. Eastin, 116 Ky. 699, 76 S. W. 856, recording of mortgage in place other than home port of vessel does not impart constructive notice. 3 Dall. 17, 18. 1 L. 490, UNITED STATES v. HAMILTON. Sjd. 1 (I, 20). Habeas corpus to admit to bail. Approved in Ex parte Moran, 144 Fed. 600, circuit courts of ap- peals may issue habeas corpus within respective jurisdictions. 3 Dall. 19-42, 1 L. 491, BINGHAM v. CABBOT. (I, 21.) Miscellaneous. Cited in Watkins v. Mooney, 114 Ky. 652, 71 S. W. 624, where mayor was absent for a day at another town twenty-five miles distant, president of aldermanic board cannot ap- point police commissioner. 3 Dall. 42-54, 1 L. 502, UNITED STATES v. LAWKENCE. Syl. 1 (I, 23). Mandamus to compel decision. Approved in Cattermole v. Ionia Circuit Judge, 136 Mich. 280. 99 N. W. 3, mandamus does not lie to review action of circuit judge in quashing writ and to compel setting aside of order. 3 Dall. 54-120, 1 L. 507, PENHALLOW v. DOANE. Syl. 3 (I, 25). Admiralty proceedings are in rem. Approved in Erie etc. Transp. Co. v. Erie E. Co., 142 Fed. 12, after decree determining fault for collision and damages and apportioning same, admiralty cannot entertain independent suit by one vessel to enforce contribution for cargo damage. 3 Dall. 121-132, 1 L. 535, UNITED STATES v. PETERS. Syl. 1 (I, 28). Prohibition to district judge. See 111 Am. St. Eep. 944, note. 3 Dall. 171-184, 1 L. 556, HYLTON v. UNITED STATES. Syl. 1 (I, 30). Tax on carriages not direct tax. Approved in People v. Reardon, 184 N. Y. 447, 112 Am. St. Eep. 637, 77 N. E. 975, upholding tax on stock transfers. [2] 3 Notes on U. S. Reports. 3 Dall. 199-369 3 Dall. 199 285, 1 L. 5G8, WARE v. HYLTON. Syl. 4 (I, 34). Treaty overrides prior statute. Approved in In re Wyman, 191 Mass. 279, 77 N. E. 380, under Russian treaty, Russian vice-consul entitled to letters in estate of intestate Russian to exclusion of public administrator. 3 Dall. 297-301, 1 L. 610, UNITED STATES v. LA VENGEANCE. Syl. 1 (I, 36). Forfeiture of vessel is civil proceeding. Approved in Kirkland v. State, 72 Ark. 179, 105 Am. St. Rep. 25, 78 S. W. 773, 65 L. R. A. 76, act of 1899, providing for condemnation and summary destruction of liquor illegally kept for sale prescribes civil proceeding so that mere preponderance of evidence suffices. 3 Dall. 306, 1 L. 613, ARCAMBEL v. WISEMAN. Syl. 1 (I, 39). Attorneys' fees as damages. Approved in Frantz v. Saylor, 12 Okl. 42, 69 Pac. 795, following rule; Lindeberg v. Howard, 146 Fed. 470, in action on injunction bond given in Alaska territorial court attorneys' fees expended in obtaining dissolution of injunction are not proper element of damages. 3 Dall. 320, 321, 1 L. 619, GRAYSON v. VIRGINIA. Syl. 1 (I, 41). Service of process against state. Approved in Henry v. State, 87 Miss. 34, 95, 39 So. 863, 884, under constitution, governor cannot sue in name of state. 3 Dall. 321-330, 1 L. 619, WISCART v. D'AUCHY. Syl. 4 (I, 42). Effect of appeal. Approved in Chattanooga v. Keith, 115 Tenn. 589, 94 S. W. 63, upholding provision of Chattanooga charter denying right of appeal from city court where fine does not exceed ten dollars. 3 Dall. 365-369, 1 L. 638, BROWN v. BARRY. Syl. 1 (I, 50). Construction of repealing statutes. Approved in Pepin Tp. v. Sage, 129 Fed. 662, 64 C. C. A. 160, applying rule under Minnesota act of 1894 to act repealing special act creating village. Syl. 2 (I, 50). Strict construction of statutes. Approved in Whitfield v. Aetna Life Ins. Co., 144 Fed. 360, under Rev. St. Mo. 1899, § 7896, suicide of insured, whether sane or insane, does not avoid policy unless act contemplated at time of application for policy; White etc. Pub. Co. v. Apollo Co., 139 Fed. 432, construing copyright act. 3 Dall. 37a-401 Notes on U. S. Eeports. 4 3 Dall. 378-382, 1 L. 644, HOLLINGSWOKTII v. VIEGINIA. Syl. 1 (I, 53). President need not approve constitutional amend- ment. Approved in Warficld v. Vandiver, 101 Md. 117, 60 Atl. 542. con- stitutional amendment need not be presented to governor before sub- mission to people. Syl. 2 (I, 53). Eleventh amendment, suits against state. Approved in Alabama etc. School v. Addler, 144 Ala. 557, 42 So. 117, judgment against Alabama Girls' Industrial School ia void for want of jurisdiction, as judgment against state. 3 Dall. 382-384, 1 L. 646, BINGHAM v. CABOT. (I, 54.) Miscellaneoils. Cited in Eobinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 990, consent cannot give jurisdiction. 3 Dall. 386-401, 1 L. 648, CALDER v. BULL. Syl. 1 (I, 57). Ex post facto laws defined. Approved in Eooney v. North Dakota, 196 U. S. 325, 49 L. 497, 25 Sup. Ct. 264, North Dakota act of 1903, changing place of confinement to penitentiary before execution of death penalty, is not ex post facto as applied to conviction before its passage; Goode v. State, 50 Fla. 47, 39 So. 462, statute changing rules as to sufficiency of evidence in prosecutions for violations of liquor laws ex post facto us to offense committed prior to law; State v. Tyree, 70 Kan. 205, 78 Pac. 525, where one convicted prior to Indeterminate Sentence Law of 1903, but sentence under that law, such law ex post facto as to him; State v. Eooney, 12 N. D. 150, 95 N. W. 515, act of 1903, substituting penitentiary for county jail as place of confinement pending execution, and directing executions at penitentiary, is not ex post facto as to one convicted before its passage; Ex parte Larkin, 1 Okl. 58, 25 Pac. 747, 11 L. R. A. 418, Act 1st Assem. Okl. T., § 1, continuing in force Neb. Cr. Code, is not ex post facto as to offense already committed. Syl. 3 (I, S3). What is vested right.. Approve'd in Lohrstrofer v. Lohrstrofer, 140 Mich. 560, 104 N. W. 146, holding void Comp. Laws 1897, § 552, amending law requiring payment of register's fees on appeal, so as to provide for reinstate- ment of appeals dismissed for nonpayment, in so far as applicable to appeals dismissed prior to passage of act; Graham v. Great Falls etc. Co., 30 Mont. 400, 76 Pac. 810, preferential interest given success- ful contestant under 21 Stat. 140, not vested in property right. Syl. 5 (I, 85). Statutes against social compact. Approved in Castner v. City of Minneapolis, 92 Minn. 86, 99 N. W. 361, holding void reimbursement by city council of defeated candidate for office for expenses of contest; State v. Barrett, 138 N. C. 640, 5 Notes on U. S. Eeports. 4 Dall. 8-11 50 S. E. 509, upholding Laws 1903, p. 749, c. 434, making possession of more than quart of liquor prima facie evidence of keeping it for sale; Ex parte Anderson, 46 Tex. Cr. 379, 380, 390, 392, 81 S. W. 975, 976, 982, 983, city court has no jurisdiction to try accused for violation of state penal statute; dissenting opinion in Crane v. Waldron, 133 Mich. 84, 94 N. W. 597, majority upholding act 99 of 1897, relating to proof in suits in aid of execution; dissenting opinion in Battery Park Bank v. Madison County Commrs., 135 N. C. 244, 47 S. E. 1019, majority holding Laws 1903, p. 480, c. 281, relating to refunding bonds of Madison county is not mandatory. Syl. 6 (I, 87). Exercise of judicial functions by legislature. Approved in Ex parte Anderson, 46 Tex. Cr. 399, 81 S. W. 987, city court has no jurisdiction to try accused for violation of state statute. 3 Dall. 411-415, 1 L. 658, FOWLER v. LINDSEY. Syl. 3 (I, 92). When certiorari lies. Approved in Whitney v. Dick, 202 U. S. 138, 139, 50 L. 965, 966, 26 Sup. Ct. 584, certiorari cannot be issued by circuit court of appeals to review conviction in lower federal court. IV DALLAS. 4 Dall. 8-11, 1 L. 718, TURNER v. BANK OF NORTH AMERICA. Syl. 1 (I, 98). Assignee's suit in federal court. Approved in Kolze v. Hoadley, 200 U. S. 83, 50 L. 381, 26 Sup. Ct. 220, applying rule in suit to foreclose trust deed, though bill also prays for cancellation of release of trust deeds to grantor as in fraud of complainant's rights, who held deeds as collateral security for loan to trustee; Utah-Nevada Co. v. De Lamar, 133 Fed. 121, 122, 66 C. C. A. 179, federal court has no jurisdiction of suit by assignee of oral contract to recover money due thereon, where assignor could not have maintained suit in such court. Syl. 3 (I, 99). Presumption against federal jurisdiction. Approved in United States v. Barrett, 135 Fed. 194, federal court has no jurisdiction over action on bond of government contractor for use of materialman unless requisite citizenship and amount are affirm- atively shown; Yocum v. Parker, 130 Fed. 771, 66 C. C. A. 80, aver- ment of residence is not equivalent to one of citizenship for purpose of federal jurisdiction; Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 990, upholding territorial court's jurisdiction over suit, though petition incorrectly described court as federal court. 1 Cr. 1-180 Notes on U. S. Eeports. 6 Syl. 4 (I, 100). Limitations on federal jurisdiction. Approved in Stevenson v. Fain, 195 U. S. 167, 49 L, 143, 25 Sup. Ct. 6, circuit court of appeal decisions in controversy between citizens of different states is final, though parties claimed title to property in controversy under grants from different states. 4 Dall. 22-27, 1 L. 724, COUESE v. STEAD. Syl. 3 (I, 106). Judicial notice of state laws. See 113 Am. St. Eep. 873, note. I CRANCH. 1 Cr. 1-45, 2 L. 15, TALBOT v. SEEMAN. Syl. 6 (I, 109). Proof of foreign laws. See 113 Am. St. Eep. 874, 884, note. 1 Cr. 45-103, 2 L. 29, WILSON v. MASON". Syl. 5 (I, 112). Trustee — Eequisition of title — Notice of equity. Approved in Johnson v. Georgia Loan etc. Co., 141 Fed. 597, bona fide purchaser of lands which had been previously conveyed by grantor must allege and prove want of notice and actual payment of money independently of recitals in deed. 1 Cr. 103-110, 2 L. 49, UNITED STATES v. SCHOONEE PEGGY. Syl. 5 (I, 113). Effect of change of law pending appeal. Approved in dissenting opinion in Chicago etc. E. E. Co. v. People, 219 111. 413, 76 N. E. 572, 3 L. E. A. (N. S.) 508, majority holding where supreme court finally adjudges particular tax invalid, legis- lature cannot validate levy and make tax collectible. 1 Cr. 117-137, 2 L. 53, TUENEE v. FEXDALL. Syl. 5 (I, 115). Execution, on what leviable. Approved in Commerce Vault Co. v. Barrett, 222 111. 176, 177, 78 N. E. 48, 49, where mortgaged leasehold was sold on foreclosure and holder of judgment against mortgagor, obtained after foreclosure re- deemed, had leasehold resold, other judgments obtained by judg- ment creditor after resale are not lien on excess. 1 Cr. 137-180, 2 L. 60, MAEBUEY v. MADISON. Syl. 1 (I, 118). Supreme court's jurisdiction limited by constitu- tion. Approved in Ex parte Cox, 44 Fla. 540. 33 So. 510, 61 L. E. A. 734, writ of error does not lie from supreme court to review judgment 7 Notes on U. fcJ. Keports, 1 Cr. 137-180 in habeas corpus rendered by justice thereof in habeas corpus; San- ders V. Commonwealth, 117 Ky. 7, 111 Am. St. Rep. 222, 77 S. W. 359, 1 L. R. A. (N. S.) 932, upholding act of 1899, prohibiting sale of milk from cows fed on distillery slop. Syl. 2 (I, 127). What is appellate jurisdiction. Approved in Ex parte Moran, 144 Fed. 596, determining power of circuit court of appeals to issue habeas corpus to inquire into power of Oklahoma court in capital cases; State v. Ausherman, 11 Wyo. 425, 72 Pac. 202, upholding jurisdiction of supreme court to issue prohibition to restrain action of inferior court in excess of its juris- diction. Syl. 3 (I, 131). Mandamus, when lies. Approved in Wadsworth v. Bo3-sen, 148 Fed. 780, denying juris- diction of suit to enjoin Indian agent from obstructing complainant from prospecting on reservation lands; Barber Asphalt Pav. Co. v. Morris, 132 Fed. 955, 66 C. C. A. 55, 67 L. R. A. 761, upholding power of circuit court of appeals to issue mandamus where lower federal court stayed all proceedings until determination of matter by state court; State ex rel. Higdon v. Jelks, 138 Ala. 121, 35 So. 61, denying mandamus to compel governor to reinstate national guard officer; Traynor v. Beckham, 116 Ky. 24, 74 S. W. 1107, mandamus lies to governor to compel issuance of commission to police judge legally appointed by city council; McDaid v. Territory, 1 Okl. 98, 30 Pac. 440, granting mandamus- to compel townsite trustees to execute deed to contestant they have decided is entitled to deed; Clement v. Graham, 78 Vt. 319, 63 Atl. 155, granting mandamus on petition of taxpayer to compel state auditor to permit inspection of vouchers in his office; State v. Brooks, 14 Wyo. 412, 84 Pac. 490, upholding juris- diction to issue mandamus to compel governor to issue certificate of election as state treasurer. Syl. 4 (I, 144). When right to appointive office complete. Approved in Harrington v. Pardee, 1 Cal. App. 280, 82 Pac. 84, under St. 1887, p. 67, c. 57, appointment is not complete until com- mission is issued. Syl. 7 (I, 153). Review of executive acts. Approved in Atkinson v. Woodmansee, 68 Kan. 81, 90, 74 Pac. 644, 647, 64 L. R. A. 325, holding void Gen. St. 1901, § 5125, permitting recovery of attorneys' fees as costs in mechanics' liens cases. See 98 Am. St. Rep. 874, note. Syl. 8 (I, 156). Duty of courts to declare statutes void. Approved in Hume v. Laurel Hill Cemetery, 142 Fed. 563, holding void San Francisco ordinance prohibiting burials within city limits; Ex parte Anderson, 46 Tex. Cr. 390, 391, 81 S. W. 981, 982, city court has no jurisdiction to try accused for violation of state penal statute; State v. Chittenden, 127 Wis. 519, 521, 107 N. W. 517, 518, 1 Cr. 252-343 Notes on U. S. Reports. 8 construing dental act; dissenting opinion in State v. Moore, 76 Ark. 206, 88 S. W. 884, majority upholding state guard appropriation act of 1905. Distinguished in Higgins v. Tax Assessors of Pawtueket, 27 R. I. 405, 63 Atl. 36, upholding Practice Act 1905, p. 4, § 12, giving superior court jurisdiction in cases of prerogative writs. 1 Cr. 252-259, 2 L. 98, UNITED STATES v. SIMMS. (I, 165.) Instance of appellate jurisdiction in criminal case. Distinguished in New v. Oklahoma, 195 U. S. 256, 49 L. 184, 25 Sup. Ct. 68, supreme court cannot review judgment of Oklahoma supreme court in capital cases. 1 Cr. 259-282, 2 L. 101, FENWICK v. SEAES. Syl. 1 (I, 167). Suit by foreign administrator. Distinguished in Moore v. Petty, 135 Fed. 673, 68 C. C. A. 306, executor may sue in state other than that of appointment to recover from his agents proceeds of sale of land belonging to decedent's estate. 1 Cr. 299-309, 2 L. 115, STUART v. LAIRD. Syl. 3 (I, 168). Contemporaneous statutory construction. Approved in State v. Bryan, 50 Fla. 390, 39 So. 960, construing school laws; State v. New Orleans Ry. & Light Co., 116 La. 148, 40 So. 598, where under same provisions in two constitutions exempting manufacturers from license taxes, legislature has for more than twenty years licensed electric light companies, construction entitled to weight; State v. Northern Pac. Ry. Co., 95 Minn. 47, 103 N. W. 732, foreign railroad, paying taxes under gross earnings law, not prevented by failure to list credits from deducting debts from such credits; Henry v. State, 87 Miss. 57, 58, 39 So. 871, Acts 1900, p. 63, c. 56, relating to occupancy of lands by convicts, does not repeal Rev. Code 1892, § 3201, providing for leasing of lands acquired by prison board; Ex parte Anderson, 46 Tex. Cr. 399, 81 S. W. 987, city court has no jurisdiction to try accused for alleged violation of state penal statute; State v. Stimpson, 78 Vt. 132, 62 Atl. 17, 1 L. R. A. (N. S.) 1153, upholding statute permitting prosecution by information all crimes except those punishable by death or life imprisonment. 1 Cr. 343, 2 L. 129, ABERCROMBIE v. DUPUIS. Syl. 1 (I, 177). Necessity for averment of citizenship. Approved in Kansas City etc. Ry. Co. v. Prunty, 133 Fed. 16, 66 C. C. A. 163, right to remove to federal court on ground of diverse citizenship not shown by mere averment of residence. II CRANCH. 2 Cr. 9, 2 L. 191, WOOD v. WAGXO^r. (T, 182.) Miscellaneous. Cited in Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 990, consent cannot give jurisJiction, 2 Cr. 126, 2 L. 229, CAPEON v, VAN NOORDIN. Syl. 1 (I, 187). Record must show citizenship. Approved in Utah-Xevada Co. v. De Lamar, 133 Fed. 121. G6 C. C. A. 179, federal court has no jurisdiction of suit by assignee of oral contract to recover money due thereon unless record shows assignor could sue therein; Myers v. Berry, 3 Okl. 618, 41 Pac. 582, denying equity jurisdiction over petition to annul action of townsite trustees in disposing of lot where findings on which action bused and allegations of fraud are not set out. Syl. 2 (I, 189). Assignability of want of jurisdiction by plaintiff. Approved in International etc. R. Co. v. Hoj'le, 149 Fed. 182, following rule; Alexander v. Crollott, 199 U. S. 581, 50 L. 317, 26 Sup. Ct. 161, New Mexico territorial supreme court may refuse to restrain justice of peace from taking further proceedings in unlawful detainer. 2 Cr. 127-169, 2 L. 229, HEAD v. PROVIDENCE INS. CO, Syl. 1 (I, 189). Corporate powers derived from charter. Approved in Silver v. Indiana State Board, 35 Ind. App. 459. 72 N. E. 836, construing statutes relating to revision of school books; St. Louis Police etc. Assn. v. Tierney, 116 Mo. App. 460, 463, 91 S. W. 971, 972, construing mutual police association's constitution relative to designation of beneficiary on third day after admission; Paul V. Seattle, 40 Wash. 330, 82 Pac. 604, under Seattle Charter, art. 4, §§ 27, 28, fact that benefit of irregularly executed contract has been received by city does not estop it from denying liability thereon. 2 Cr. 170-179, 2 L. 243, LITTLE v. BAEREME. Syl. 1 (I, 194), Illegal acts by order of superior. Approved in O'Reilly De Camara v. Brooke, 135 Fed. 387, military governor of Cuba appointed pursuant to treaty of Paris is liable for damag.es caused by order abolishing franchise to slaughter cattle in Havana. £9] 2 Cr. 180-405 Notes on U. S. Eeporta. IC 2 Cr. 180-185, 2 L. 246, DUNLOP v. BALL. Syl. 1 (I, 195). Payment presumed from lapse of time. Approved in Cobb v. Houston, 117 Mo. App. 655, 94 S. W. 302, under act providing that judgment presumed paid after twenty years, but that presumption may be repelled by written acknowledgment or proof of part payment, absence from state does not prevent running of time in favor of presumption. 2 Cr. 187-239, 2 L. 249, CHURCH v. HUBBAET. Syl. 4 (I, 196). Proof of foreign laws. See 113 Am. St. Rep. 881, 884, note. 2 Cr. 240-271, 2 L. 266. MASON v. SHIP BLAIREAU. Syl. 5 (I, 201). Salvage to sailor on abandonment. Approved in The Eliza Lines, 199 U. S. 127, 50 L. 119, 26 Sup. Ct. 8, abandonment of vessel entitles cargo owners to refuse to go on with voyage where master has not obtained vessel from salvors before cargo owners have announced decision. Syl. 6 (I, 202). Admiralty jurisdiction over salvage. Approved in Disconto Gesellschaft v. Umbreit, 127 Wis. G60, 106 N. W. 823, where German corporation obtained judgment in Wisconsin against nonresident alien, on cause of action accruing in Germany, corporation could not impound, by ancillary remedies in Wisconsin, property of debtor there, as against Wisconsin creditor whose cause of action subsequently accrued. 2 Cr. 336-342, 2 L. 297, ADAMS v. WOODS. Syl. 1 (I, 205). Limitations against penal actions. Approved in Carter v. New Orleans etc. R. Co., 143 Fed. 101, action against carrier for damages for unlawful discrimination is gov- erned by Rev. St., § 1047, and is barred in five years. 2 Cr. 358-405, 2 L. 304, UNITED STATES v. FISHER. Syl. 1 (I, 207). Statutory construction— Title. Approved in Farmers' Loan etc. Co. v. Sioux Falls, 131 Fed. 908, under Const. S. D., art. 13, § 4, city indebted to nearly fifteen pei cent of assessed value of property could not issue bonds so as to increase debt to twenty-three per cent; Choctaw etc. E. E. Co. v. Alexander, 7 Okl. 583, 584, 595, 52 Pac. 945, 54 Pac. 422, construing act regulating prairie fires; Osgood v. Central Vermont Ey. Co., 77 Vt. 340, 60 Atl. 139, 70 L. E. A. 930, under statute providing for imprisonment of agent of railroad whose negligence causes injury, but not exempting liability for dam.ages, lessor of part of right of way for coalsheds under agreement for indemnity for negligence 11 Notes on U. S. Reports. 3 Cr. 97-174 of railroad's servants, cannot recover for negligent running of engine against shed; Anable v. Montgomery County Commrs., 34 Ind. App. 78, 107 Am. St. Eep. 173, 71 N. E. 274, arguendo. 2 Cr. 419-444, 2 L. 324, GRAVES v. BOSTON MARINE INS. CO. Syl. 3 (I, 216). Equity — Adequate legal remedy. Approved in Allen v. Myers, 1 Alaska, 117, applying rule in suit to quiet title to mining claim. 2 Cr. 445-453, 2 L. 332, HEPBURN v. ELLZEY. Syl. 1 (I, 216). Citizens of state — Federal suits. Approved in Ex parte Massachusetts, 197 U. S. 487, 49 L. 848, 25 Sup. Ct. 512, denying prohibition as ancillary to suit between citi- zen of District of Columbia and citizens of another state; lovra etc. Min. Co. V. Bliss, 144 Fed. 455, where alien sued nonresident guaranty corporation on bond in which principal held guaranty company harm- less from liability on bond, and in same action plaintiff sought to hold principal for the embezzlement for which bond sued on, con- troversy was removable, regardless of principal's citizenship; Laden V. Meek, 130 Fed. 879, 65 C. C. A. 361, allegation in removal peti- tion that certain of petitioners are residents of state other than that of plaintiff's citizenship, and that none of petitioners are residents and citizens of state whereof plaintiff is citizen, is insufficient; Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 991. Ill CRANCH. 3 Cr. 97-139, 2 L. 377, LAMBERT v. PAINE. (X, 223.) Miscellaneous. Cited in Johnson ▼. Georgia Loan etc. Co., 141 Fed. 597, bona fide purchaser of lands previously conveyed by grantor must allege and prove want of notieo and payment of pur- chase money independently of recitals in deed. 3 Cr. 159-174, 2 L. 397, UNITED STATES t. MORE. Syl. 1 (I, 225). Supreme court's appellato jurisdiction. Approved in New v. Oklahoma, 195 U. S, 256, 49 L. 184, 25 Sup. Ct. 68, supreme court cannot review Oklahoma judgment in capital case; Bradford v. Southern Ey. Co., 195 V. S. 250, 49 L. 181, 25 Sup. Ct. 55, writ of error in forma pauperis cannot be prosecuted from circuit court of appeals; Ex parte Moran, 144 Fed. 598, 600, determining jurisdiction of circuit court of appeals to issue habeas corpus to determine power of Oklahoma court to imprison one con- victed of capital crime. 3 Cr. 220-324 Notes on U. S. Reports. 12 Syl. 2 (I, 22G). Supreme court — Criminal appeals. Approved iu Albright v. New Mexico, 200 U. S. 12, 50 L. 347, 26 Sup. Ct. 210, supreme court cannot review judgment of terri- torial court in quo warranto. 3 Cr. 220-228, 2 L. 417, MILLIGAN v. MILLEDGE. Syl. 2 (I, 232). Equity— Sufficiency of plea. Approved in Glucose etc. Co. v. Douglass, 145 Fed. 950, plea of noninfringement of patent is not good in suit in equity. 3 Cr. 207, 268, 2 L. 435, STRAWBRIDGE v. CURTISS. Syl. 1 (I, 235). Courts — Diverse citizenship. Approved in Sweeney v. Carter Oil Co., 199 U. S. 257, 50 L. 180. 26 Sup. Ct. 55, two citizens of different states may sue citizen of third state in federal district of latter 's residence; Anderson v. Barsman, 140 Fed. 11, circuit court has no jurisdiction of suit against several defendants to enjoin diversion of water, where one of de- fendants is citizen of same state as complainant. 3 Cr. 270-282, 2 L. 436, McFERRAN v. TAYLOR. Syl. 1 (I, 238). Vendor bound by description. Approved in Kell v. Trenchard, 142 Fed. 23, where option for purchase of timber land stated minimum quantity, and agent of vendor by fraudulent representations as to boundaries induced ven- dee to make false estimate, vendee entitled to abatement of price. 3 Cr. 293-298, 2 L. 444, BUDDICUM v. KIRK. Syl. 2 (I, 240). Depositions — Notice — Adjournments. Distinguished in Mann v. County Court, 58 W. Va. 661, 52 S. E. 779, determining power of court to adjourn to distant day. 3 Cr. 300-311, 2 L. 446, SIMMS v. SLACUM. Syl. 1 (I, 241). Effect of fraudulent judgment. Approved in dissenting opinion in Haddock v. Haddock, 201 U. S. 627, 50 L. 893, 26 Sup. Ct. 525, majority holding mere domicile with- in state of one party to marriage does not give courts of that state jurisdiction to render decree of divorce enforceable in all other states against nonresident only constructively served. 3 Cr. 319-324, 2 L. 453, DIXON v. RAMSAY. Syl. 1 (I, 245). Suit by foreign administrator. Distinguished in Moore v. Petty, 135 Fed. 673, 68 CCA. 306, ex- ecutor may sue in foreign state to recover from agent proceeds of sale of decedent's realty. 13 Notes on U. S. Reports. ?. Cr. 331-453 Syl. 5 (I, 246). Law governing will contest. Approved in Clark v. Eltinge, 38 Wash. 383, 107 Am. St. Rep. 858, 80 Pac. 559, in action against iiusband and wife to recover bal- ance due on mortgage debt incurred while defendants were nonresi- dents, liability of wife depends on law of state of residence at time debt created. 3 Cr. 331-337, 2 L. 457, WISE v. WITHERS. Syl. 1 (I, 247). Conclusiveness of court-martial 's decree. Approved in Hamilton v. McClaug'nry, 136 Fed. 447, where on re- turn to habeas corpus respondent justified under judgment of court- martial, burden is on him to show judgment based on positive law. 3 Cr. 337-35G, 2 L. 459, UNITED STATES v. GRUNDY, Syl. 1 (I, 250). Vesting of title — Election of remedies. Approved in Chapman v. Mill Creek etc. Coke Co., 54 W. Va. 198, 46 S. E. 264, where deed reserved to grantors and heirs use of any of coal banks that they may select and there were six coal veins in land, there was reservation of title in coal. Distinguished in dissenting opinion in Chapman v. Mill Creek etc. Coke Co., 54 W. Va. 202, 46 S. E. 266, majority holding when deed reserved to grantors use of coal banks that they may select, and there were six coal veins in -land, there was no reservation of title in coal. 3 Cr. ,399-414, 2 L. 479, UNITED STATES v. HETH. Syl. 1 (I, 252). Retroactive construction of statutes. Approved in Jones v. Stockgrowers' Nat. Bank, 17 Colo. App. 83, 67 Pac. 179, Laws 1891, p. 246, providing that final judgments are to be considered paid in full after ten years from rendition unless re- vived, does not apply to judgments existing at its passage. 3 Cr. 448-453, 2 L. 495, EX PARTE BURFORD. Syl. 1 (I, 254). Supreme court's jurisdiction on habeas corpus. Approved in Ex parte Moran. 144 Fed. 600, determining power of circuit court of appeals to issue habeas corpus where one was im- prisoned on conviction of capital crime in Oklahoma. (I, 254.) Miscellaneous. Cited in Hyde v. Shine. 199 U. S. 85, 50 L. 98, 25 Sup. Ct. 760, as to power of circuit court to issue certiorari auxiliary to habeas corpus. IV CRANCH. 4 Cr. 2-29, 2 L. 531, JENNINGS v. CAESON. (I, 260.) Miscellaneous. Cited in Erie etc. Transp. Co. v. Erie K. Co., 142 Fed. 12, decree in suit for damages by collision is conclusive. 4 Cr. 46, 47, 2 L. 545, MONTALIT v. MURRAY. Syl. 3 (I, 263). Federal courts — Suit by indorsee. Approved in Utah-Nevada Co. v. De Lamar, 133 Fed. 122, 66 C. C A. 179, assignee of oral contract to recover money due thereon cannot sue in federal court unless record shows assignor could sue therein. 4 Cr. 75-137, 2 L. 554, EX PARTE BOLLMAN & SWAETWOUT. Syl. 1 (I, 266). Courts of limited jurisdiction. Approved in Kentucky v. Powers, 201 U. S. 24, 50 L. 644, 26 Sup. Ct. 387, denial, in summoning or impaneling jurors of any civil rights secured by federal laws, does not, unless justified by state law, give right to remove criminal prosecution. Syl. 7 (I, 269). Habeas corpus — Necessity for commitment. Approved in Whitney v. Dick, 202 U. S. 136, 50 L. 964, 25 Sup. Ct. 584, circuit courts of appeal have no power to issue original and independent writs of habeas corpus; Ex parte Moran, 144 Fed. 599, 600, 601, determining jurisdiction of circuit court of appeals to issue habeas corpus to review power of Oklahoma court to imprison one convicted of capital crime. Syl. 12 (I, 271). Venue of offenses out of state. Approved in Kerr v. Shine, 136 Fed. 64, 69 C. C. A. 69, where offense committed on high seas and offender not arrested until found in California, he must be tried there, though vessel on which ofl'ense committed had touched at Hawaii, where warrant issued though unexecuted. Syl. 13 (I, 271). Certiorari as ancillary to habeas corpus. Approved in Hyde v. Shine, 199 U. S. 85, 50 L. 98, 25 Sup. Ct. 760, refusal of circuit court to grant certiorari as ancillary to habeas corpus, being discretionary, is not assignable as error. 4 Cr. 179, 180, 2 L. 287, DIGGS v. WOLCOTT. Syl. 1 (I, 275). Injunction against state court. Approved in Security Trust Co. v. Union Trust Co., 134 Fed. 302, refusing to enjoin sale under state decree, where court of competent [14] 15 Notes on U. S. Reports. 4 Cr. 224-298 jurisdiction had appointed receiver in proceedings to foreclose rail- road mortgage and directed sale. Distinguished in Shaw v. Frey, 69 N. J. Eq. 324, 59 Atl. 812, state court may compel discovery from one under its jurisdiction of matters necessary to trial of federal action and may for that pur- pose restrain prosecution of federal action pending discovery. 4 Cr. 224-236, 2 L. 603, GRANT v. NAYLOR. Syl. 1 (I, 283). Parol evidence to explain guaranty. Approved in Bank of Seneca v. First Nat. Bank, 105 Mo. App. 725, 78 S. W. 1093, where bank cashed check without knowledge of existence of letter of credit addressed -'To Whom It May Con- cern," it cannot have amount of check credited against amount named in letter. 4 Cr. 237, 238, 2 L. 607, WOODS v. YOUNG. Syl. 1 (I, 285). Refusal of continuance discretionary. Approved in Clement v. United States, 149 Fed. 312, upholding denial of continuance because of age and physical infirmity of accused. 4 Cr. 241-293, 2 L. 608, ROSE v. HIMELY. Syl. 1 (I, 286). Conclusiveness of foreign judgment. Approved in National Exchange Bank v. Wiley, 195 U. S. 263, 49 L. 187, 25 Sup. Ct. 70, judgment under warrant of attorney an- nexed to note authorizing confession of judgment in favor of holder is collaterally attackable on ground that party in whose behalf it was rendered was not real owner of note; dissenting opinion in United States v. Ju Toy, 198 U. S. 276, 49 L. 1049, 25 Sup. Ct. 644, majority upholding conclusiveness of decision of immigration officers denying right of citizen of Chinese descent to enter United States; dissent- ing opinion in Jordan v. Chicago etc. Ry. Co., 125 Wis. 591, 110 Am. St. Rep. 865, 1 L. R. A. (N. S.) 885, 104 N. W. 807, majority holding determination of county court on petition for letters by pub- lic administrator where deceased left no kin, that deceased left property in state, is conclusive on collateral attack. 4 Cr. 293-298, 2 L. 625, HUDSON v. GUESTIER. Syl. 2 (I, 291). Seizure — Jurisdiction of res in neutral port. Approved in Orient Ins. Co. v. Rudolph, 69 N. J. Eq. 579, 61 A>J. 31, production and proof in New Jersey court of order by New York court appointing receiver in supplementary proceedings and reciting necessary jurisdictional facts is conclusive of validity of order. 4 Cr. 317-433 Notes on U. S. Reports. 16 4 Cr. 317-321, 2 L. 633, MAYOR ETC. OF ALEXANDRIA v, PATTEN. Syl. 1 (I, 294). Application of payments. Approved in City of Lincoln v. Lincoln St. E. Co., 67 Neb. 492, 93 N. W. 774, applying rule to payment of taxes; People v. Grant, 139 Mich. 28, 102 N. W. 227, in absence of designation by debtor to which of several accounts payment shall apply, creditor may make application at any time before suit. 4 Cr. 347-366, 2 L. 643, PEISCH v. WARE. Syl. 1 (I, 299). Forfeitures — Duty on derelict goods. Approved in United States v. One Black Horse, 129 Fed. 168, livery rig used wholly in United States to transport smuggled goods is sub- ject to forfeiture, though liveryman had no knowledge of purpose for which team used. Distinguished in Moody v. McKinney, 73 S. C. 442, 53 S. E. 545, where plaintiffs did not consent to or know of property being used to transport liquor in night-time, contrary to law, it is not subject to seizure and confiscation. 4 Cr. 403-414, 2 L. 660, STEAD v. COURSE. Syl. 1 (I, 303). Sufficiency of plea in bar. Approved in Barber v. National Carbon Co., 129 Fed. 377, 64 C. C. A. 40, applying rule to plea to bill for infringement of patent. (I, 303.) Miscellaneous. Cited in Ocala etc. Works v. Lester, 49 Fla. 369, 38 So. 62, when replication filed to plea, defendant must prove facts which plea suggests. 4 Cr. 421-433, 2 L. 666, POLLARD v. DWIGHT. Syl. 1 (I, 306). Appearance as waiver of service. Approved in dissenting opinion in Fisher v. Crowley, 57 W. Va. 329, 50 S. E. 429, majority holding defendant appearing in court of record to quash defective summons need not recite that appearance is for that purpose only to avoid waiver. Syl. 3 (I, 308). Construction of state statutes. Approved in Yocum v. Parker, 134 Fed. 211, 67 C. 0. A. 227, apply- ing rule in construing will under Missouri laws. V CRANCH. 5 Cr. 11-13, 3 L. 22, HENDERSON v. MOORE. Syl. 1 (I, 312). Effect of receipt in full. See 100 Am. St. Rep. 430, note. Syl. 2 (I, 313). Denial of new trial not error. Approved in Hanaway. v. Guarantee etc. Invest. Co., 143 Fed. 962, where application for new trial was based on matters of fact aliunde record and on errors not incorporated in bill of exceptions, ques- tion as to new trial not reviewable. 5 Cr. 13-15, 3 L. 22, COOKE v. WOODROW. Syl. 3 (I, 315). Appeal — Determination of value in dispute. Approved in Phoenix Wholesale Meat Co. v. Moss, 7 Ariz. 276, 64 Pac. 443, applying rule to appeal in suit for compensation for meat inspection. 5 Cr. 22-34, 3 L. 25, McKEEN v. DELANCY. Syl. 2 (I, 319). Following state statutory construction. Approved in Reed v. Munn, 14S Fed. 749, under Colorado statutes and decisions, equitable interest of beneficial owners under trust conveyance of conflicting interests in mining locations was subject to execution. 5 Cr. 34-45, 3 L. 29, TUCKER v. OXLEY. Syl. 1 (I, 320). Bankruptcy— Setoff of joint debt. Distinguished in In re Shults, 132 Fed. 575, solvent partnership which is indebted to bankrupt cannot set off against such indebted- ness a claim due from bankrupt estate to one of partners. 5 Cr. 57-61, 3 L. 36, HOPE INS. CO. v. BOARDMAN. Syl. 2 (I, 324). Courts — Citizenship of corporation. Approved in Doctor v. Harrington, 196 U. S. 5S6, 49 L. 609, 25 Sup. Ct. 355, presumption that stockholders are citizens of state of creation of corporation does not preclude them from asserting actual citizenship to sustain federal jurisdiction when sued as Stockholm ers; United States v. Milwaukee etc. Transit Co., 142 Fed. 253, where corporation organized and owned by officers and stockholders of an- other, and was used merely as dummy to get rebates from carriers, they are treated as identical. 2 [17] 5 Cr. 61-280 Notes on U. S. Keports. 18 5 Cr. 61-92, 3 L. 38, UNITED STATES BANK v. DEVEAUX. Syl. 2 (I, 325). Eight to sue in federal court. Approved in Stevenson v. Fain, 195 U. S. 168, 49 L. 143, 25 Sup. Ct. 6, circuit court of appeals decree is final in controversy between diverse citizens claiming under grants from different states. Syl. 4 (I, 326). Corporation not citizen. Approved in Davis v. Chesapeake etc. Ey. Co., 116 Ky. 151, 75 S. W. 277, compliance by foreign railroad with Kentucky laws re- quiring them to become corporations in accordance with local laws before doing business therein does not make it citizen thereof so as to prevent removal to federal court. Syl. 5 (I, 328). Averment of citizenship of stockholders. Approved in Doctor v. Harrington, 196 U. S. 586, 49 L. 609, 25 Sup. Ct. 355, presumption that stockholders are citizens of state of creation of corporation does not preclude them from asserting actual citizenship to sustain federal jurisdiction when sued as stockholders. 5 Cr. 115-141, 3 L. 53, UNITED STATES v. PETEES. Syl. 1 (I, 330). Federal jurisdiction over state's suits. Approved in Board of Education v. Volk, 72 Ohio St. 486, 74 N. E. 650, arguendo. 5 Cr. 142-154, 3 L. 61, VIOLETT v. PATTON. Syl. 2 (I, 333). Consideration defined. Approved in White etc. Mach. Co. v. Fowler, 28 Nev. 110, 78 Pac. 1035, bond showing that it is to enable principal to obtain exten- sion of credit is on sufficient consideration to bind sureties. 5 Cr. 173-187, 3 L. 70, KEMPE v. KENNEDY. Syl. 3 (I, 337). Judgments — Eecord showing jurisdiction. Approved in Edelstein v. United States, 149 Fed. 638, judgment of bankruptcy courts are not collaterally attackable. Syl. 4 (I, 338). Judgment valid till reversed. Approved in Alexander v. Crollott, 199 U. S. 581, 50 L. 317, 26 Sup. Ct. 161, New Mexico territorial supreme court is justified in refusing to restrain justice of peace from further proceedings in unlawful detainer, where right of appeal exists; Taylor v. Hunting- ton, 34 Wash. 458, 459, 75 Pac. 1105, judgment of court of gen- eral jurisdiction foreclosing tax lien not vacated in motion because affidavit of publication of notice defective, 5 Cr. 262-280, 3 L. 96, HEPBUEN v. AULD. Syl. 3 (I, 346). Specific performance — Time not of essence. Approved in Ilosmer v. W'yoming Ey. & I. Co., 129 Fed. 892, 65 L. B. A. 81, applying rule to sale of mining property; Gibson v. 19 Notes on U. S. Reports. 5 Cr. 280-302 Brown, 214 III. 330, 73 N. E. 580, applying rule to exchange of realty for stock of merchandise. Distinguished in Day v. Mountin, 137 Fed. 762, 763, 70 C. C. A. 190, contract for sale of land made in good faith may be specifically (enforced by vendor, though he did not have title at time it was made, where such fact known, and he acquired title before time for performance. 5 Cr. 280, 281, 3 L. 101, UNITED STATES v. EVANS. Syl. 1 (I, 348). Voluntary nonsuit — Refusal to reinstate. Approved in Francisco v. Chicago etc. R. Co., 149 Fed. 355, 356, where, at close of trial, defendant moved for instructed verdict and motion granted, but before instruction given plaintiff took involun- tary nonsuit, he cannot take error. 5 Cr. 281-284, 3 L. 101, YEATON v. UNITED STATES. Syl. 2 (I, 349). Repeal of penal statute. Approved in Pensacola etc. R. R. Co. v. State, 45 Fla. 89, 110 Am. St. Rep. 69, 33 So. 980, following rule; Ex parte Larkin, 1 Okl. 55, 58, 25 Pac. 746, 11 L. R. A. 418, arguendo. Syl. 3 (I, 349). Effect of repeal of penal law. Approved in Atwood v. Buckingham, 78 Conn. 425, 62 Atl. 617, repeal of Gen. St. 1902, § 324, relating to recovery of penalty from administrator for failure to file inventory within one year before suit to recover penalty, did not affect pending actions; Terry v. Mc- Clung, 104 Va. 601, 52 S. E. 356, passage of act of 1888 depriving county court of jurisdiction in void cases caused pending cases to lapse. Syl. 4 (I, 351). Admiralty appeal tried de novo. Approved in The San Rafael, 141 Fed. 275, fact that claimants did not appeal docs not alter rule. 5 Cr. 288, 289, 3 L. 103, LOGAN v. PATRICK. Syl. 1 (I, 353). Enjoining action at law. Approved in' Campbell v. Golden Cycle Min. Co., 141 Fed. 613, upholding federal jurisdiction of dependent suit in equity where no federal question or diverse citizenship shown. 5 Cr. 2S9-302, 3 L. 104, HARRISON v. STERRY. Syl. 1 (I, 355). Contracts — Law governing. Approved in In re Brannock, 131 Fed. 820, record of mortgage in state of mortgagor's residence is not notice to creditors of mort- gagor where property located in another state; Holshouser v. Gold Hill Copper Co., 138 N. C. 255, 50 S. E. 653, 70 L. R. A. 183, New Jersey statute declaring that annual corporation license fee shall 5 Cr. 303-372 Notes on U. S. Reports. 20 be preferred debt in case of insolvency is not binding in another state; Greenville Nat. Bank v. Evans-Snyder-Buel Co., 9 Okl. 364, 60 Pae. 253, mortgage executor in another state on property located therein and duly filed according to laws of such state is valid after property brought into Oklahoma without being filed with register of county to which property brought; Snyder v. Yates, 112 Tenn. 313, 105 Am. St. Eep. 941, 79 S. W. 796, 64 L. R. A. 353, chattel mortgage executed and recorded in Illinois on property afterward transferred to Tennessee does not give priority over liens of local attaching creditors. 5 Cr. 303, 3 L. 108, BROWN v. STRODE. Syl. 1 (I, 360). Federal courts — Citizenship — Nominal parties. Cited in Burrell v. United States, 147 Fed. 46, suit by material- man, in name of United States, under 28 Stat. 278, relating to con- tractor's bonds, cannot be brought in federal courts where real party has not requisite citizenship; United States v. Churchyard, 132 Fed. 83, suit by materialmen, in name of United States, under 28 Stat. 278, relating to contractors' bonds, may be brought in fed- eral court regardless of citizenship of parties or amount in con- troversy. 5 Cr. 351-358, 3 L. 123, MOSS v. RIDDLE. Syl. 2 (I, 374). Fraud — Averment of intention. Approved in Cella v. Brown, 144 Fed. 754, mere allegation that plan of reorganization between two railroads was fraudulently de- signed, without specifically charging that said companies partici- pated therein or specifying in what fraud consisted, is insufficient; Williamson v. Beardsley, 137 Fed. 469, 69 C. C. A. 615, in suit to set aside conveyances of realty by executor, mere allegations that sales were fraudulent, and that proceedings were fraudulently con- ducted, without averment of substantive facts constituting fraud, are insufficient. 5 Cr. 3CS-372, 3 L. 128, UNITED STATES v. VOWELL. Syl. 1 (I, 377). AVhen duties on imports accrue. Approved in United States v. Hartwell Lumber Co., 142 Fed. 436, where merchandise was imported shortly before act of 1897 went into effect, and importers tendered entry before importation com- plete, which tender was rejected, and not renewed till after act was effective, provisions of section 33 of said act governed; Ellison v. United States, 136 Fed. 972, imported merchandise entered at one port for immediate transportation to another cannot be entered for consumption at latter port before its arrival within limits of that port. VI CRANCH. 6 Cr. 8-29, 3 L. 136, FIELD v. HOLLAND. Syl. 6 (I, 382). A^jplication of payments by court. Approved in Wardlaw v. Troy Oil Mill, 74 S. C. 371, 54 S. E. 659, where manufacturer sells brick to be used on building, and without notice to him, part of brick sold, he may apply payments made on account by purchaser to unsecured part of purchase price. 6 Cr. 82-86, 3 L. 160, LEWIS v. HARWOOD, Sj'l. 1 (I, 387). Assignability of bond. Cited in Crist v. McDaniel, 15 Okl. 471, 82 Pac. 992, arguendo. 6 Cr. 87-148, 3 L. 162, FLETCHER v. PECK. Syl. 4 (I, 389). Pleadings amendable in sujtreme court. Approved in Kansas City etc. Ey. Co. v, Prunty, 133 Fed. 17, 60 C. C. A. 163, circuit court of appeals may permit amendment in that court of removal petition by supplying requisite averment of citi- zenship inadvertently omitted, where parties consent. Distinguished in Fred Macey Co. v. Macey, 135 Fed. 729, 68 C. C. A. 363, amendment showing citizenship of parties cannot be made in circuit court after removal, though parties consent, Syl. 6 (I, 390). Statutes upheld in case of doubt. Approved in Board of Commrs. v. Tollman, 145 Fed. 767, uphold- ing Laws N. C. 1885, p. 439, c. 233, incorporating railroad and au- thorizing issuance of county aid bonds; United States v. Union Bridge Co., 143 Fed. 389, unholding 30 Stat. 1153, relating to altera- tion of bridges; Srate v. Jack, 69 Kan. 402, 76 Pac. 916, 1 L. R. A. (N. S.) 167, witness cannot refuse to testify as to his knowledge of violations of anti-trust act on ground that § 10 does not grant him immunity from prosecutions under federal anti-trust law; Ex parte Kair, 28 Nev. 146, 80 Pac. 466, upholding Stat. 1903, p. 33, c. 10, im- posing penalty on person working more than eight hours per day in any mine or ore-mill; Kadderly v. Portland, 44 Or. 143, 74 Pac. 719, upholding initiation and referendum amendment to constitution; Highland Boy etc. Min. Co. v. Strickley, 28 Utah, 231, 107 Am. St. Kep. 711, 78 Pac. 297, upholding Sess. Laws 1901, p. 19, c. 25, relat- ing to condemnation for tramways for operation of mines; Whitlock V. Hawkins, 105 Va. 249, 53 S. E. 403, upholding act of 1906, validat- [21] 6 Cr. 148-170 Notes on U, S. Eeports. 22 ing acts done under amending Code, c. 23, relating to assessments of lands; National Council etc. v. State Council, 104 Va. 202, 51 S. E. 168, upholding Feb. 17, 1900, creating corporation with exclusive au- thority to grant charters to subordinate councils, thereby annulling prior right of foreign corporation to transact business of order in state; dissenting opinion in Allen v. Eeed, 10 Okl. 160, 63 Pac. 878, majority holding void act of 1893, relating to change of county seats. Syl. 12 (I, 399). Vested rights not divestable. Approved in Condon v. City of Eureka Springs, 135 Fed. 568, re- I^eal of act of Arkansas 187,5, authorizing cities to call in outstand- ing warrants and reissue them, was effective with respect to out- standing warrants; Wasserman v. Metzger, 105 Va. 765, 54 S. E. 899, determining whether purchaser was bona fide purchaser entitled to priority. Syl. 14 (I, 407). Legislature prescribes laws. Approved in Minnesota Canal etc. Co. v. Koochiching Co., 97 Minn. 437, 107 N. W. 408, property devoted to generation of water power for distribution and sale to general public is devoted to public use. Syl. 18 (I, 410). Impairment of state's contracts. Approved in Shepherd's Point Land Co. v. Hotel, 134 N. C. 398, 46 S. E. 749, applying rule to grant by state to persons as owners nnd riparian proprietors of lot in harbor in navigable arm of sea in Iront of their lands. Syl. 21 (I, 415). Ex post facto law defined. Approved in State v. Kooney, 12 N. D. 151, 95 N. W. 515, act of 1903, substituting penitentiary for county jail as place of confine- ment pending execution and directing executions there, not ex post facto as to one convicted prior to its passage; Ex parte Larkin, 1 Okl. 58, 25 Pac. 747, 11 L. R. A. 418, act of territorial assembly con- tinuing in force Neb. Cr. Code is not ex post facto as offenses al- ready committed but not prosecuted. Syl. 23 (I, 419). Effect of reservation of Indian lands. Approved in Labadie v. United States, 6 Okl. 414, 51 Pac. 670, Indian sustaining tribal relations and cutting timber on Osage res- ervation for speculative purposes is subject to fine. 6 Cr. 148-170, 3 L. 181, MASSIE v. WATTS. Syl. 1 (I, 420). Equity jurisdiction wherever person found. Approved in Wilhite v. Skelton, 149 Fed. 72, upholding jurisdic- tion over suit for specific performance of contract to convey interest in mine situated out of jurisdiction and to recover share of profits; Western Un. Tel. Co. v. Pittsburg etc. Ry. Co., 137 Fed. 437, in suit in equity in federal courts for specific performance of telegraph right of way contracts, necessary parties being before court, it is immaterial that part of property affected was beyond court's tcrri- 23 Notes on U. S. Keports. 6 Cr. 171-202 torial jurisdiction; White Star Mining Co. v. Hultberg, 220 111. 600, 77 N. E. 335, applying rule in suit to set aside award of arbitrators; State V. District Court of Pine Co., 94 Minn. 372, 102 N, W. 870, action to cancel contract for sale of land for fraud and for recovery of price paid before discovery of fraud is transitory; Silver Camp Mining Co. v. Dickort, 31 Mont. 493, 78 Pac. 968, action for specific performance of contract to convey realty is in personam; Wyman v. Hcrard, 9 Old. 63, 59 Pac. 1017, upholding jurisdiction over counter- claim; Dickson v. Loehr, 126 Wis. 645, 106 N. W. 794, 4 L. R. A. (N. S.) 986, where vendee agreed to convey land in another state as security for installment of price, vendor in action to foreclose en- titled to judgment that vendee pay amount due or convey land; O'Dell V. Boydon, 150 Fed. 736, arguendo. Distinguished in Jones v. Byrne, 149 Fed. 470, federal court can- not decree foreclosure of lien on and order sale of land in another state. Syl. 4 (I, 425). Agent taking patent in own name. Approved in Copper Eiver Min. Co. v. McClellan, 2 Alaska, 144, applying rule to location of mining claims; Thompson v. Burk, 2 Alaska, 252, where defendant located placer claim, but made no dis- covery, and thereafter plaintiff relocated and without notifying de- fendant of it, contracted with him to dig discovery shaft, in which he found gold, discovery inured to perfect defendants' location; Brandon v. West, 28 Nev. 507, 83 Pac. 328, where owner of land granted to complainant by executed oral sale all sand on land, legal title to land having passed to such owner's descendants by operation of law. it was incumbent on them to convey to complainant right purchased. 6 Cr. 171-176, 3 L. 180, UNITED STATES v. HALL. (I. 425.) Miscellaneous. Cited in State v. Eooney, 12 N. D. 150, 95 N. W. 515, as to ex post facto laws. 6 Cr. 176-183, CAMPBELL v. GORDON. Syl. 1 (I, 426). Naturalization — Presumptions from certificate. Approved in Dolan v. United States, 133 Fed. 448, certified copy of record of court showing admission of alien to citizenship con- stitutes "certificate of citizenship" within meaning of Rev. St., §§ 5425, 5427, making it criminal to aid another in using false certifi- cate for certain purposes; State v. Weber, 96 Minn. 428, 105 N. W. 492, record of court of common pleas of Meigs county, Ohio, con- stitutes judgment admitting to citizenship person therein named. 6 Cr. 192-202, 3 L. 195, KORN v. MUTUAL ASSURANCE SOCIETY. (I, 428.) Miscellaneous. Cited in Huber v. Martin, 127 Wis. 432. 105 N. W. 1037, determining rights of members of mutual insurance eompany in net assets when it ceases to do business. 6 Cr. 221-324 Notes on U. S. Reports. 24 6 Cr. 221-225, 3 L. 205, SLACUM v. POMERY. Syl. 2 (I, 433). Defects in declaration raised on appeal. Approved in Phoenix Assur. Co. v. Maryland etc. Co., 146 Fed. 502, where judgment, sought to be reviewed on error, had for sole support verdict which was outside issues but in direct conflict with complaint, court could not remit excess and affirm same; Nichols v. Commis- sioners of Weston County, 13 Wyo. 7, 76 Pac. 682, where final judg- ment is not supported by pleading or findings, it may be vacated ou error, on record without bill of exceptions, though no exception taken. 6 Cr. 253-267, 3 L. 215, SHEEHY v. MANDEVILLE & JAMESON. Syl. 1 (I, 438). Other's note as payment. Approved in San Juan v. St. John's Gas Co., 195 U. S. 521, 49 L. 304, 25 Sup. Ct. 108, agreement that payment in United States cur- rency should extinguish larger amount due under street lighting con- tract estimated in Porto Rican currency, is binding where there was dispute as to medium of payment. 6 Cr. 267, 268, 3 L. 220, SKILLERN v. MAY. Syl. 1 (I, 443). Objection to jurisdiction after reversal. Approved in Eiverdale Cotton Mills v. Alabama etc. Mfg. Co., 198 U. S, 197, 49 L. 1016, 25 Sup. Ct. 629, federal court which has de- creed foreclosure in suit in which diverse citizenship admitted, and property described as lying partly in state, may restrain attack on title of purchaser under decree by state suit brought by party to original suit on theory that federal court assumed jurisdiction by his untruthful admission of citizenship. 6 Cr. 307-324, 3 L. 232, DUROUSSEAU v. UNITED STATES. Syl. 1 (I, 451). Scope of supreme court's jurisdiction. Approved in Ex parte Moran, 144 Fed. 589, determining jurisdic- tion of circuit court of appeals to issue habeas corpus where one is imprisoned for capital crime on conviction by Oklahoma court; State V. Crenshaw, 138 Ala. 509, 35 So. 456, state cannot appeal from judg- ment in proceedings to determine right to register as elector; Jung v. Myer, 11 N. M. 388, 68 Pac. 936, Laws 1901, c. 82, authorizing ap- peals to supreme court from interlocutory orders affecting substantial rights is void. Syl. 2 (I, 453). Statutes construed according to intention. Approved in United States v. American Surety Co., 200 U. S. 203, 50 L. 440, 26 Sup. Ct. 168, labor and materials used in prosecution of public work, whether furnished under contract directly to contractor or to subcontractor, are within obligation of bond given pursuant to 28 Stat. 278, c. 280. 25 Notes on U. S. Keports. 7 Cr. 32-34 6 Cr. 329-330, 3 L. 239, THE SCHOONER EACHEL v. UNITED STATES. Syl. 1 (I, 455). Expiration of penal law. Approved in Pensacola etc. R. R. Co. v. State, 45 Fla. 89, 1*10 Am. St, Rep. 69, 33 So. 986, applying principle where pending appeal stat- ute prescribing penalty for violation of railroad rate regulations re- pealed; Ex parte Larkin, 1 Okl. 55, 25 Pac. 746, 11 L. E. A. 418, arguendo. 6 Cr. 332-338, 3 L. 240, SERE v. PITOT. Syl. 1 (I, 456). Federal suit by assignee. Approved in Kolze v. Hoadley, 200 U. S. 82, 50 L. 380, 26 Sup. Ct. 220, applying rule to suit to foreclose trust deed; Gorman Wright Co. v. Wright, 134 Fed. 365, 67 C. C. A. 345, pledgee of stock cannot, on ground of diverse citizenship between himself and corporation, sue latter in federal court for appointment of receiver, where pledgor is resident of state of which corporation is citizen; Utah-Nevada Co. v. De Lamar, 133 Fed. 120, 121, 66 C. C. A. 179, suit by assignee of oral contract to recover money due thereon cannot be maintained in federal court unless assignor could sue therein. Syl. 2 (I, 458). Acquisition includes governmental power. Approved in Dorr v. United States, 195 U. S. 140, 49 L. 129. 24 Sup. Ct. 808, right of trial by jury was not extended to Philippines. VII CRANCH. 7 Cr. 32-34, 3 L. 259, UNITED STATES v. HUDSON. Syl. 2 (I, 462). Federal courts' jurisdiction limited. Approved in Kentucky v. Powers, 201 U. S. 24, 50 L. 644. 26 Sup. Ct. 387, circuit court has no jurisdiction on removal of criminal pros- ecution wherein equal civil rights secured by federal laws, but not authorized by state law, were denied accused in summoning and im- paneling jury; Stevenson v. Fain, 195 U. S. 167, 49 L. 143, 25 Sup. Ct. 6, decision of circuit court of appeals is final in action in circuit court between diverse citizens claiming under grants from different states; United States v. Barrett, 135 Fed. 192, federal court has no jurisdiction over suit in name of United States on bond of contractor under 28 Stat. 278, unless requisite citizenship and amount in con- troversy shown; Taylor v. State, 49 Fla. 80, 38 So. 384, upholding power of court to appoint another member of bar to act as adviser of grand jury where state attorney refuses to discharge duties; Bar- clay V. United States, 11 Okl. 509, 69 Pac. 800, stealing of property 7 Cr. 34-99 Notes on U, S. Reports. 26 in Indian Territory and bringing it into Oklahoma not being crime under federal law, it is crime against Oklahoma law. 7 Cr. 34-52, 3 L. 260, SHIRRAS v. CAIG & MITCHELL. Syl. 1 (I, 465). Title of purchaser of equitable interest. Approved in Davis v. Carlisle, 142 Fed. 108, where under chattel mortgage providing for future advances, but leaving it optional with mortgagee whether he shall make them, they are made after notice of subsequent mortgage, his lien for advances is subsequent to sec- ond mortgage; Johnson v. Georgia Loan etc. Co., 141 Fed. 597, one claiming as bona fide purchaser of land previously conveyed by grantor must allege and prove payment of purchase money inde- pendently of recitals in deed; Wasserman v. Metzger, 105 Va. 752, 54 S. E. 895, determining that purchaser only bought equity and was not bona fide purchaser for value. Syl. 5 (I, 468). Mortgage to secure future advances. Approved in HoUey v. Curry, 58 W. Va. 75, 112 Am. St. Rep. 948. 51 S. E. 137, holding description of debt secured insufficient to con- stitute new promise removing bar of limitations. 7 Cr. 52-68, 3 L. 266, SCHOONER PAULINA'S CARGO v. UNITED STATES. Syl. 2 (I, 470). Statutory construction — Legislative intent. Approved in dissenting opinion in Irwin v. Irwin, 2 Okl. 218, 37 Pac. 560, majority holding repeal of law giving probate courts juris- diction in divorce, such courts have no jurisdiction in such cases. 7 Cr. 69-99, 3 L. 271, RUSSELL v. CLARKE. Syl. 2 (I, 471). Remedy for fraud at law. Approved in American Alkali Co. v. Salom, 131 Fed. 50, 65 C. C. A. 284, subscriber to corporate stock may plead rescission of sale for fraud as defense to action at law to recover assessments on sub- scription contract. Syl. 3 (I, 472). Discovery — Equitable relief. Approved in Larkey v. Gardner, 105 Va. 720, 54 S. E. 887, holding bill for discovery and relief on two bonds executed by defendant to plaintiff and still owned by latter, but in possession of former, in- sufficient as not averring discovery indispensable to recovery. Syl. 4 (I, 473). Equity — Claim satisfiable out of fund. Approved in Brockett v. Lewis, 144 Mich. 562, 108 N. W. 429, up- holding equity jurisdiction of suit for accounting and application of amount due where corporation transferred property to assignee on his promise to corporation and creditors to run business and pay debts from proceeds. 27 Notes on U. S. Reports. 7 Cr, 99-147 S7I. 5 (I, 475). Doubts construed against guaranty. Approved in Kenneweg Co. v. Finney, 98 Md. 117, 56 Atl. 484, broker's reply to inquiries as to seller's responsibility that contract is good and that he will look out for buyer's interests is not guar- anty that contract will be carried out. Syl. 15 (I, 480). Essential parties necessary for decree. Approved in Lynch v. United States, 13 Okl. 158, 73 Pac. 1100, applying rule in suit to cancel townsite patent. (I, 471.) Miscellaneous. Cited in Fowler v. Osgood, 141 Fed. 24, and Indian Land & T. Co. v. Shoenfelt, 135 Fed. 487, 68 C. C. A. 196, both holding where equity has no jurisdiction, decree of dismissal must expressly adjudge that it is rendered on that ground or be made without prejudice. 7 Cr. 99, 3 L. 281, BINGHAM v. MORRIS. Syl. 1 (I, 482). Dismissal for not filing transcript on appeal. Approved in Equitable Life Assur. Soc. v. Tolbert, 145 Fed. 339, applying rule where record on error, though lodged with clerk in due time, was not filed till five days after return day owing to delay in payment of docket fee; Oilman v. Fernald, 141 Fed. 940, where tran- script is filed in court of appeals within sixty days from signing of citation and within time specified, but after return day of writ of error, and failure to file before return day has not continued hearing over any term, and no motion to dismiss made till transcript printed, writ not dismissed. 7 Cr. 115, 116, 3 L. 287, UNITED STATES v. CROSBY, Syl. 1 (I, 486). Law governing land titles. Approved in Southern Pac. Co. v. Western Pac. Ry. Co., 144 Fed. 179, applying rule to question as to whether grant by Oakland of its waterfront had been confirmed by authority of law; Kane v. Lucknian, 131 Fed. 617, applying rule in specific performance of oral contract for purchase of cows in exchange for farm; Succession of Hasling, 114 La. 296, 38 So. 174, validity of will made in Louisiana by citizen thereof devising land in Mississippi is tested by law of latter. 7 Cr. 116-147, 3 L. 287, SCHOONER EXCHANGE v. McFADDON. Syl. 2 (I, 488). Foreign jurisdiction over warships. Approved in United States y. Cornp}l Steamboat Co., 202 U. S. 190, 50 L. 990, 26 Sup.. Ct. 648, federal government is liable for salvage upon the duties collected by it on cargo afterward saved from loss by fire while on board lighter in harbor and in control of customs officers. 7 Cr. 147-241 Notes on U. S. Reports. 28 Syl. 1 (I, 489). Jurisdiction over passing foreign troops. Approved in Hamilton v. McClaughry, 136 Fed. 448, 449, upholding jurisdiction of court-martial during "Boxer Uprising." 7 Cr. 147-152, 3 L. 297, FEEELAND v. HEEON. Syl. 1 (I, 489). Stated account — Effect of silence. Approved in Patillo v. Allen-West Com. Co., 131 Fed. 688, 65 C. C. A. 508, where complaint stated facts from which presumption of promise to pay balance of account stated arose, amendment adding averment of promise to pay balance of stated account presented no new cause of action. 7 Cr. 164-167, 3 L. 303, STATE OF NEW JEESEY v. WILSON. Syl. 2 (I, 494). Repeal of state tax exemption. Distinguished in Lake Drummond Canal Co. v. Commonwealth, 103 Va. 340, 344, 49 S. E. 507, 508, corporation purchasing property and franchise of another corporation on foreclosure of trust deed cannot claim tax immunity granted to original corporation. 7 Cr. 171-176, 3 L. 305, DAVY v. FAW. Syl. 3 (I, 501). Necessity for award by deed. See 102 Am. St. Eep. 247, note. 7 Cr. 176-194, 3 L. 307, HUGHES v. MOOEE. Syl. 4 (I, 501). Statute of frauds — Sale of equitable title. Approved in Pickens v. Wood, 57 W. Va. 483, 50 S. E. 819, where husband buys land in own name, in suit to subject land to his debts, his uncorroborated evidence is insufficient to show express trust in favor of wife by parol agreement. 7 Cr. 206-208, 3 L. 317, RIDDLE v. MOSS. Syl. 1 (I, 504). Principal obligor not competent witness. Approved in Oexner v. Loehr, 117 Mo. App. 710, 93 S. W. 336, where one of makers of note was originally codefendant, but de- faulted, his wife cannot testify for accommodation indorser defend- ant. 7 Cr. 218-241, 3 L. 321, CONWAY v. ALEXANDER. Syl. 2 (I, 506). Doubtful conditional sales decided as mortgage. Approved in Day v. Davis, 101 Md. 269, 61 Atl. 580, holding deed was accompanied by grantee's option to reconvey on payment of con- sideration and grantor could redeem; Liskey v. Snyder, 56 W. Va. 636, 49 S. E. 52G, setting aside release of equity of redemption given for new consideration; Hursey, v. Hursey, 56 W. Va. 160, 49 S. E. 371, deed absolute coupled with retention of possession and payment of taxes by grantor is mortgage. 29 Notes on U. S. Reports. 7 Cr. 288-348 Syl. 8 (I, 510). Deed is mortgage where consideration inadequate. Approved in Hursey v. Hursey, 56 W. Va. 157, 49 S. E. 370, deed absolute, coupled with retention of possession and payment of taxes by grantor, is mortgage. Syl. 4 (I, 508), Mortgages — Remedy against person. Approved in Reed y. Parker, 33 Wash. 117, 74 Pac. 64, construing transaction as sale with option to repurchase and not mortgage. 7 Cr. 288-290, 3 L. 347, BARTON v. PETIT. Syl. 2 (I, 519). Certiorari in aid of writ of error. Cited in Whitney v. Dick, 202 U. S. 139, 50 L. 966, 26 Sup. Ct. 584, certiorari in original proceeding to review conviction in inferior fed- eral court is not authorized to be issued by circuit court of appeals. 7 Cr. 332-338, 3 L. 302, MARINE INS. CO. OF ALEXANDRIA v. HODGSON. Syl. 1 (I, 530). Equitable relief against judgment. Approved in Farmers' etc. W. H. Co. v. Pridemore, 55 W. Va. 463, 47 S. E. 263, reaffirming rule; Miller v, Margerie, 149 Fed. 698, denying equity jurisdiction to set aside townsite deed for fraud where facts and circumstances preventing complainants from having notice of hearing and opportunity to protect rights before trustee not al- leged; Williams v. Neely, 134 Fed. 14, 69 L. R, A. 232, 67 C. C. A. 171, it is not laches for one who has equitable defense of reduction to note which is subject of pending litigation in another court to wait till affirmative action at law on defense is barred, before in- voking equitable aid to enjoin prosecution of action; Nelson v. Meehan, 2 Alaska, 493, setting aside judgment for fraud and perjury in procurement, after term at which entered and after its affirmance by appellate court; Schwaman v. Traux, 179 N. Y. 44, 103 Am. St. Rep. 832, 71 N. E. 467, setting aside judgment and sale in partition, where plaintiff had by fraud been deprived of power to bid at sale and defendant bid in property at less than value; Hockaday v. Jones, 8 Okl. 163, 56 Pac. 1056, denj-ing jurisdiction to enjoin execution of and annul default judgment obtained without service; McMahen v. Whelan, 44 Or. 406, 75 Pac. 716, judgment for plaintiff in justice court in unlawful detainer, nor its affirmance on appeal, does not estop defendant suing for specific performance of verbal lease and to enjoin judgment; Hearn v. Canning, 27 R. I. 220, 61 Atl. 604, denying injunction against execution on ground that judgment by confession was entered by mistake, where it would not have been entered but for negligence of attorney. 7 Cr. 339-348, 3 L. 364, LOCKE v. UNITED STATES. Syl. 2 (I, 537). Probable cause to justify seizure. Approved in United States v. 83 Sacks of Wool, 147 Fed. 749, on judgment for claimant of property seized by customs officers because 7 Cr. 358-382 Notes on U. S. Reports. 30 of fraudulent importation, certificate of reasonable cause should be entered, though verdict was correct, where it is shown officers acted in good faith; Agnew v. Haymes, 141 Fed. 636, in action against internal revenue ofiicer for wrongful seizure of property returned to claimant intact, proof that defendant made seizure by direction of revenue commissioner upon information received from agents show- ing suspicion of violation of law shows probable cause. 7 Cr. 358-363, 3 L. 370, CAZE v. BALTIMOEE INS. CO. Syl. 2 (I, 540). Freight where vessel abandoned. Approved in The Eliza Lines, 199 U. S. 128, 50 L. 149, 26 Sup. Ct. 8, justifiable abandonment of vessel in consequence of dangers of seas entitles cargo owners to refuse to go on with voyage where master has not rejoined ship before anyone else has taken possession. 7 Cr. 366-370, 3 L. 373, LEE v. MUNROE. Syl. 2 (I, 541). Government's liability for oflicers' torts. Approved in United States v. Kauhoe, 147 Fed. 187, where defend- ants, who were liable on postmaster's bond for embezzlement, re- quested inspector to extend time, and he consented in consideration of their executing note, note was unauthorized and void; Hudson v. Miles, 185 Mass. 585, 71 N. E. 65, in action on tax collector's bond, if it is known to obligee of bond that principal in past had been guilty of irregularities in duties, obligee's failure to disclose fact is de- fense against surety 's liability. 7 Cr. 370-382, 3 L. 374, HERBERT v. WREN. Syl. 1 (I, 543). Dower — Law and equity jurisdiction. Approved in Beeman v. Ketzman, 124 Iowa, 94, 99 N. W. 174, it is immaterial that widow styles action as one in partition if petition states facts on which dower may be assigned. Sj'l. 2 (I, 543). Election between devise and dower. Approved in Stone v. Cook, 179 Mo. 541, 78 S. W. 802, 64 L. R. A. 287, legatee accepting legacy under protest that will invalid cannot contest will by allegation of readiness to pay amount into court or to have it deducted from share if will set aside. Syl. 3 (I, 544). Dower — Wife's right on lease. Approved in Swayne v. Lone Acre Oil Co., 98 Tex. 608, 86 S. W. 743, 69 L. R. A. 986, where grantees of remainderman occupying in severalty by virtue of fee title of grantors to two-thirds, but to en- tire exclusion of life tenant, discovered cil, J'"''''^ tenant only entitled to interest on one-third of proceeds of sale of oil. 31 Notes on U. S. Reports. 7 Cr. 382-480 7 Cr. 382-389, 3 L. 378, CAEGO OF BRIGG AURORA v. UNITED STATES. Syl. 1 (I, 545). Legislative conditions for operation of statute. Approved in State v. Rogers, 97 Minn. 325, 106 N. W. 346, up- holding Laws 1903, c. 333, p. 577, regulating collection and disposi- tion of fees of district court clerks in counties of over 200,000 in- habitants; State V. Bryan, 50 Fla. 371, 39 So. 954, arguendo. 7 Cr. 408-415, 3 L. 386, FERGUSON v. HARWOOD. Syl. 1 (I, 548). Conclusiveness of authentication of record. Approved in Seymour v. Du Bois, 145 Fed. 1007, upholding suffi- ciency of authentication of record of judgment within provisions of Rev. St., § 905. 7 Cr. 420-423, 3 L. 391, STARK v. CHESAPEAKE INS. CO. Syl. 1 (I, 552). Requisites of record of naturalization. Approved in Dolan v. United States, 133 Fed. 449, certified copy of record of court showing admission of alien to citizenship consti- tutes "certificate of citizenship" within Rev. St., §§ 5425, 5427; Tinn v. United States Dist. Atty., 148 Cal. 775, 84 Pac. 152, oraer vacating order admitting alien to citizenship for fraud in its procure- ment, made after lapse of six months from naturalization is void. 7 Cr. 434, 435, 3 L. 396, SMITH v. DELAWARE INS. CO. Syl. 1 (I, 555). Judgment on verdict when reserved. Approved in Barge v. Haslam, 65 Neb. 659, 91 N. W. 529, follow- ing rule. 7 Cr. 436-455, 3 L. 396, HOLKER v. PARKER. Syl. 2 (I, 555). Attorney's right to compromise. Approved in Miocene Ditch Co. v. Moore, 150 Fed. 500, upholding order striking from files amendment to complaint in suit to determine water rights made pursuant to compromise by attorney for defendant, without defendant's knowledge, whereby defendant's rights in other streams adjudicated; Fleishman v. Meyer, 46 Or. 275, 80 Pac. 213, attorney at law, in absence of express authority, cannot compromise claim for client. 7 Cr. 471-480, 3 L. 408, BLACKWELL v. PATTON. Syl. 3 (I, 559). Amendment of ejectment declaration. Approved in King v. Davis, 137 Fed. 211, under Code Va. 1S87, § 3253, where in ejectment original declaration contained description of land and allegation that defendants were unlawfully withholding possession from plaintiff, he could amend description before defend- ants' appearance. 7 Cr. 481-565 Notes on U. S. Keports. 32 7 Cr. 481-487, 3 L. 411, MILLS v. DURYEE. Syl. 1 (I, 559). Effect of sister state judgment. Approved in Alaska Commercial Co. v. Debney, 2 Alaska, 314, where plaintiff asked leave to amend complaint on two causes of action, first on original debt and second on Canadian judgment against de- fendant on original debt, leave denied; dissenting opinion in Had- dock V. Haddock, 201 U. S. 626, 632, 50 L. 893, 896, 26 Sup. Ct. 525, majority holding mere domicile within state of one party to marriage does not give courts of that state jurisdiction to render divorce de- cree enforceable in other states against defendant constructively served; dissenting opinion in Smith v. Willung, 123 Wis. 386, 101 N. W. 695, arguendo. See 103 Am. St. Eep. 305, 307, note. Syl. 2 (I, 567). Nihil debet as plea to foreign judgment. See 103 Am. St. Eep. 323, note. 7 Cr. 496-500, 4 L. 417, BRIG CAROLINE v. UNITED STATES. Syl. 2 (I, 570). Amendment of libel for forfeiture. Approved in Graham v. Oregon E. etc. Co., 134 Fed. 693, where exceptions to libel in admiralty for want of jurisdiction are sustained, amendment may be allowed. 7 Cr. 504-506, 3 L. 420, McINTIRE v. WOOD. Syl. 1 (I, 571). Mandamus by circuit court. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 955, 67 L. R. A. 761, 66 C. C. A. 55, upholding jurisdiction of, court of ap- peals to issue mandamus to compel circuit court to vacate order stay- ing proceedings in state court; dissenting opinion in Tampa Water- works Co. V. Tampa, 199 U. S. 247, 50 L. 175, 26 Sup. Ct. 23, majority upholding power of municipality of Florida to reduce water rates. Distinguished in McDaid v. Territory, 1 Okl. 97, 30 Pac. 440, terri- torial court may issue mandamus to compel townsite trustees to issue deed to contestant they have decided is entitled to it. Syl. 2 (I, 573). Circuit court's jurisdiction limited. Approved in Kentucky v. Powers, 201 U. S. 24, 50 L. 644, 26 Sup. Ct. 387, denial, in summoning or impaneling jurors, of any civil right secured by federal law, does not, unless authorized by state laws, give right to remove criminal prosecution to federal court; Stevenson V. Fain, 195 U. S. 167, 49 L. 143, 25 Sup. Ct. 6, circuit court of ap- peals has no jurisdiction over controversy between claimants under grants from different states where diverse citizenship did not exist. 7 Cr. 550-565, 3 L. 436, PALMER v. ALLEN. Syl. 2 (I, 576). Effect of state law on federal officers. Approved in King v. Davis, 137 Fed. 241, Va. Code 1887, § 3566, relating to lis pendens, has no application to federal courts. 33 Notes on U. S. Eeports. 7 Cr. 565-632 7 Cr. 565-570, 3 L. 440, YOUNG v. BLACK. Syl. 1 (I, 577). Assumpsit — Res adjudicata as defense. Approved in Holford v. James, 136 Fed. 555, 69 C, C. A. 263, up- holding sufficiency of docket entries to support plea of res adjudicata. 7 Cr. 570-572, 3 L. 442, SCHOONER ANNE v. UNITED STATES. Syl. 2 (I, 581). Sufficiency of libel for forfeiture. Approved in J. W. Bishop Co. v. Shelhorse, 141 Fed. 647, upholding action of trial judge in suggesting to plaintiff addition of another count to declaration setting forth more clearly matters covered by general averment. Syl. 3 (I, 581). Amendment of libel in admiralty. Approved in Graham v. Oregon R. etc. Co., 134 Fed. 693, where ex- ceptions to libel in admiralty for want of jurisdiction are sustained amendment may be allowed. 7 Cr. 572-575, 3 L. 443, UNITED STATES v. JANUARY. Syl. 3 (I, 582). Officers — Liability of second bondsmen. Approved in First Nat. Bank v. National Surety Co., 130 Fed. 406, 407, 409, 66 L. E. A. 777, applying principle to indemnity bond of bank official. 7 Cr. 577-589, 3 L. 444, LIVINGSTON v. DOEGENOIS. Syl. 2 (I, 584). Mandamus by supreme court. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 954, 956, 67 L. R. A. 761, 66 C. C. A. 55, circuit court of appeals has juris- diction to issue mandamus to compel circuit judge to vacate order staying proceedings in state court; In re Dowd, 133 Fed. 751, argu- endo. 7 Cr. 596-601, 3 L. 451, THORNTON v. CARSON. Syl. 1 (I, 585). Award in alternative. Approved in Brock v. Lawton, 210 Pa. 202, 59 Atl. 999, apply- ing rule where bill filed to compel delivery of stock ur payment of its value. Syl. 3 (I, 585). Setting aside award. Approved in Burrill v. United States, 147 Fed. 49, where, in action in federal court, parties agreed to trial before arbitrators, court may enter judgment on award. 7 Cr. 603-632, 3 L. 453, FAIRFAX v. HUNTER. Syl. 3 (I, 586). Alien's right to hold land. Approved in Pembroke v. Huston, 180 Mo. 638, 79 S. W. 471, alien cannot abandon property and rescind contract for eichauge of lauds; 3 8 Cr. 9-50 Notes on U. S. Eeports, 34 Louisville Property Co. v. Mayor & City Council of Nashville, 114 Tenn. 221, 84 S. W. 812, purchase of land by foreign corporation with- out first complying with laws relating to foreign corporations is no bar to suit for damage to land from change of street grade. Syl. 6 (I, 588). Forfeiture of alien's lands. Approved in Brigham v. Peter Bent Brigham Hospital, 134 Fed. 527, 67 C. C. A, 393, where testator devised residuary estate in trust for term and then to be transferred to corporation to be organized, to be used for hospital, fact that at testator's death charitable cor- poration could not hold property to amount of devise did not invali- date gift as to excess where special act passed permitting corpora- tion to take; Shea v. Nilima, 133 Fed. 215, 66 C. C. A. 263, upholding agreement between two aliens to locate mining claims. VIII CRANCH. 8 Cr. 9-30, 3 L. 471, GEIFFITH v. FEAZIER. Syl. 2 (I, 592). Executors — Effect of want of jurisdiction. Approved in Cunnius v. Reading School Dist., 198 U. S. 473, 49 L. 1131, 25 Sup. Ct. 721, upholding Pa. Laws 1885, p. 155, for admin- istration of estates of absentees; Savings Bank of Baltimore v. Weeks, 103 Md. 606, 64 Atl. 296, holding void act of 1896, giving orphans' court jurisdiction to appoint administrator for estate of person unheard of for seven years; Jordan v. Chicago etc. Ry. Co., 125 Wis. 588, 592, 110 Am. St. Rep. 865, 104 N. W. 805, 807, 1 L. R. A. (N. S.) 885, under Rev. St. 1898, § 3819, county court on hear- ing petition for administration may determine whether or not de- ceased leaves property in state, and its determination is not col- laterally attackable; Rice v. Tilton, 14 Wyo. 113, 82 Pac. 579, ad- ministrator appointed under voidable order reciting proof of notico made, but where in fact statutory notice to executor named in will not mailed, is entitled to commissions and disbursements. Syl. 4 (I, 593). Executor absent from »tate. See 108 Am. St. Rep. 414, note. (I, 590.) Miscellaneous. Cited in Leahy v. Haworth, 141 Fed. 852, arguendo. 8 Cr. 39-50, 3 L. 481, MARCARDIN v. CHESAPEAKE INS. CO. Syl. 1 (I, 594). Charter for cargo as affreightment. Approved in Grimberg v. Columbia Packers' Assn., 47 Or. 264, 266, 83 Pac. 197, construing charter of vessel as contract of affreight- ment and not demise. 35 Notes on U. S. Reports. 8 Cr. 72-470 8 Cr. 72-74, 3 L. 491, CLEMENTSON v. WILLIAMS. Syl. 1 (I, 598). Limitations — Acknowledgment of debt. See 102 Am. St. Ecp. 753, note. 8 Cr. 84-93, 3 L. 496, RICHARDS v. MARYLAND INS. CO. Syl. 1 (I, 601). Limitations^-Failure of executor to prosecute suit. Distinguished in Patterson v. Safe Deposit & Trust Co., 148 Fed. 790, arguendo. 8 Cr. 98-108, 3 L. 500, BEATTY v. BURNS. Syl. 2 (I, 602). Statute of limitations one of repose. Approved in Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 140 Fed. 724, when insurance policy provides that action thereon is barred unless commenced within thirty days after right of action accrues, conduct of company inducing delay merely suspends operation of clause. 8 Cr. 229-251, 3 L. 545, GREEN v. LITER. Syl. 4 (I, 611). Jurisdiction — Amount in controversy. Approved in Way v. Clay, 140 Fed. 355, in ejectment in federal court to recover land alleged to be valued at over $2,000, jurisdiction not ousted by disclaimer of all except tract of less value. Syl. 5 (I, 612). Costs — Recovery less than jurisdictional amount. Overruled in McCarthy v. American Thread Co., 143 Fed. 680, cir- cuit court cannot compel payment of costs by plaintiff recovering lesr. than $500, unless damages laid in declaration in excess of $2,000 merely to give colorable jurisdiction. 8 Cr. 398-416, 3 L. 602, UNITED STATES v. 1960 BAGS OF COFFEE. Syl. 1 (I, 618). Effect of forfeiture under nonintercourse acts. Approved in McConathy v. Deck, 34 Colo. 471, 83 Pac. 138, under statute providing for forfeiture of concealed weapons taken from parties violating statute, conviction of carrying concealed weapon not necessary to forfeiture; Daniels v. Homer, 139 N. C. 232, 51 S. E. 997, 3 L. R. A. (N. S.) 997, upholding Acts Gen. Assem. 1905, c. 292, § 9, relating to seizure and sale of appliances used in illegal fishing. 8 Cr. 462-470, 3 L. 624, ALEXANDER v. PENDLETON. Syl. 3 (I, 624). Bona fide purchaser without notice of trust. Approved in Slaughter v. Coke County, 34 Tex. Civ. 602, 79 S. W. 865, conveyance reciting grantor has sold all right, title and in- terest in certain land transferred to grantor by order of court and contract for deed gives only grantor's title. 9 Cr. 11-102 Notes on U. S. Eeports. 36 Syl. 4 (I, 624). Abatement takes no time out of limitations. Approved in Patterson v. Safe Deposit & Tr. Co., 148 Fed. 791, denying equitable relief where seven years after commencement of action without trial defendant died in another state, and two years thereafter new action barred by limitation commenced against ad- ministrator in other state. 8 Cr. 471-478, 3 L. 627, PKATT v. CARROLL. Syl. 1 (I, 625). Specific performance refused for laches. Approved in Marks v. Gates, 2 Alaska, 526, refusing specific per- formance of grubstake contract. IX CRANCH. 9 Cr. 11-18, 3 L. 639, MEIGS v. MeCLUNG'S LESSEE. Syl. 1 (I, 626). Indian treaty — Contract not controllable by agent. Approved in Wadsworth v. Boysen, 148 Fed. 780, enjoining In- (lian agent obstructing complainant from prospecting on reserva- tion. 9 Cr. 43-55, 3 L. 650, TERRETT v. TAYLOR. (I, 631.) Miscellaneous. Cited in Ex parte Anderson, 46 Tex. Cr. 392, 81 S. W. 983, city court has no jurisdiction to try accused for alleged violation of state penal statute. 9 Cr. 71-76, 3 L. 660, BRIG STRUGGLE v. UNITED STATES. Syl. 1 (I, 639). Weight of circumstanial evidence. See 97 Am. St. Rep. 774, note. 9 Cr. 76-86, 3 L. 662, RANDOLPH v. DONALDSON. Syl. 1 (I, 639). Marshal — Escape from state jail. Approved in Avery v. Pima County, 7 Ariz. 33, 60 Pac. 704, sheriff not entitled to extra pay for care of federal prisoners. 9 Cr. 87-102, 3 L. 665, POLK'S LESSEE v. WENDAL. Syl. 1 (I, 639). Following state statutory construction. Approved in Lockard v. Asher Lumber Co., 131 Fed. 690, 65 C. C. A. 517, under St. Ky., c. 102, § 3, survey of several tracts of two hundred acres each by same person is not purchase, and patent for lands so surveyed is not void on face. 37 Notes on U. S. Reports. 9 Cr. 104-179 Syl. 3 (T, 641). Presumptions from patent. Approved in Lockard v. Aslier Lumber Co., 131 Fed. 691, 695, 65 C. C. A. 517, under Rev. St. Ky., c. 102, § 3, where same person obtained survey of several tracts of two hundred acres each, patent for lands so surveyed is not void on face. Syl. 5 (I, 642). Patent where state's title void. Approved in Reeve v. North Carolina Land etc. Co., 141 Fed. 823, following rule; Davis v. Moylcs, 76 Vt. 32, 56 Atl. 176, grant of land from state conveys only state's title. Syl. 6 (I, 644). Equity — Conflicting claims under patent. Approved in Reeve v. North Carolina Land etc. Co., 141 Fed. 825, following rule. 9 Cr. 104-120, 3 L. 671, ARNOLD v. UNITED STATES. Syl. 2 (I, 647). Duties accrue on arrival. Approved in United States v. Hartwell Lumber Co., 142 Fed. 436, where merchandise imported shortly before tariff act of 1897 went into effect and collector rejected tender of duty as being made before entry complete, and tender not renewed till act operative, act of 1897 governed; Ellison v. United States, 136 Fed. 972, im- ported merchandise entered at one port for immediate transporta- tion to another cannot be entered for consumption at latter port before its arrival at that port. 9 Cr. 126-151, 3 L. 678, THE MARY. Syl. 2 (I, 649). Notice necessary to binding judgment. Approved in Reynolds v. Whittemore, 99 Me. 110, 58 Atl. 416, discharge in voluntary bankruptcy where debt not scheduled and creditor had no notice until after discharge obtained, does not bar debt. 9 Cr. 151-153, 3 L. 687, LEWIS v. McFARLAND. Syl. 1 (I, 651). Executor's suit in foreign state. Approved in Moore v. Petty, 135 Fed. 673, 68 C. C. A. 306, execu- tor may sue in another state to recover from agent proceeds of sale of decedent's realty. 9 Cr. 173-179, 3 L. 694, McIVER'S LESSEE v. WALKER. Syl. 2 (I, 656). Monuments control courses. Distinguished in Security Land etc. Co. v. Burns, 193 U. S. 179, 48 L. 671, 24 Sup. Ct. 425, courses and distances set forth in plat of official survey and referred to in patent, which shows alleged meander line of lake as one boundary, control as against actual boundary of lake, where survey fraudulent and lake never within half mile of point indicated on plat. 1 Wheat. 9-95 Notes on U. S. Reports. 38 9 Cr. 244-289, 3 L. 719, THE ADELINE. Syl. 1 (I, 6G1). Admiralty — Amendment of libel. Approved in Graham v. Oregon etc. Nav. Co., 134 Fed. 693, where exceptions to libel in admiralty for want of jurisdiction are sus- tained, leave to amend may be granted. 9 Cr. 292-338, 3 L. 735, PAWLET v. CLARK. Syl. 1 (I, 663). Courts — Conflicting grants by states. Distinguished in Stevenson v. Fain, 195 U. S. 169, 49 L. 144, 25 Sup. Ct. 6, denying jurisdiction of circuit court over controversy between parties not having requisite diversity of citizenship but claiming under grants from different states. I WHEATON. 1 Wheat. 9-19, 4 L. 23, THE SAMUEL. Syl. 1 (I, 674). Depositions — Witness must be absent. Approved in Boise v. Atchison etc. Ry. Co., 6 Okl. 247, 51 Pac. 663, fact that wife is in attendance upon sick husband does not make deposition admissible where not shown she was out of county. 1 Wheat. 75-84, 4 L. 40, THOMPSON v. GRAY. Syl. 1 (I, 677). Title passes when article selected. Approved in Buskirk Bros. v. Peck, 57 W. Va. 369, 50 S. E. 435, under contract for sale of timber to be cut and removed by vendor in specified time and paid for each month before removal, title vests as timber is cut. 1 Wheat. 91-95, 4 L. 44, NEW ORLEANS v. WINTER. Syl. 1 (I, 677). Suit between citizens of territory and state. Approved in Alabama etc. Ry. Co. v. Thompson, 200 U. S. 219, 50 L. 448, 26 Sup. Ct. 161, where plaintiff, in good faith, elects to sue jointly, in tort, foreign corporation and servants, presents separable controversy, which may be removed to federal court. Syl. 2 (I, 678). Jurisdictional capacity of all parties. Approved in Sweeney v. Carter Oil Co., 199 U. S. 257, 50 L. 180, 26 Sup. Ct. 55, two citizens of different states may sue citizen of their state in circuit court of latter 's district; Laden v. Meek, 130 Fed. 879, 65 C. C. A. 361, allegation in removal petition that cer- tain of petitioners are "residents" of state other than that of which plaintiff is citizen, and that none of petitioners are "residents ana citizens" of state of plaintiff's citizenship, is insufficient. 3 laws of another state on property therein is superior to local attach- ment after brought here, though mortgage not recorded here. Syl. 3 (II, 572). Impairment of obligation of contracts. Approved in Low Foon Yin v. United States etc. Coramr., 145 Fed. 796, upholding Chinese Exclusion Act of 1892, placing burden of proof of right of Chinese without certificate to remain in United States on him; Miners' etc. Bank v, Snyder, 100 Md. 65, 108 Am. St. Rep. 390, 59 Atl. 708, 68 L. R. A. 312, upholding Acts 1904, p. 597, c. 337, taking away pre-existing right of creditor to enforce stockholders' lia- bility and substituting therefor suit in equity by all creditors against all stockholders. Syl. 5 (II, 574). Statutes presumed valid. Approved in Board of Commrs. v. Tollman, 145 Fed. 766, uphold- ing Act N. C. 1885, p. 445, c. 233, § 14, providing for issuance of county aid bonds for railroad; McGovern v. Mitchell, 78 Conn. 564, 63 Atl. 443, upholding Laws 1905, p. 410, c. 213, increasing salaries of judges; dissenting opinion in Allen v. Reed, 10 Okl. 153, 63 Pac. 876, majority holding void act of 1893, relating to change of county seat. Syl. 8 (II, 578). State insolvency laws valid, when. Approved in Boston etc. Co. v. Ould-Carter Co., 123 Ga. 463, 51 S. E. 468, in absence of proceeding in federal courts, state courts have jurisdiction of cases within purview of insolvent traders' act. Syl. 21 (II, 583). Extraterritorial effect of insolvency discharge Approved in In re Salmon, 143 Fed. 405, holding Rev. St. Mo. 1899 §§ 1305, 1306, relating to liquidation of insolvent banks, is, iu re spect to private banks, superseded by bankruptcy act of 1898; Hols houser v. Copper Co., 138 N. C. 255, 50 S. E. 653, 70 L. R. A. 183 New Jersey statute declaring annual license fee imposed on corpora tions shall be preferred debt on insolvency does not give such claim preference in insolvency proceedings in another state. 12 Wheat. 419-460, 6 L. 678, BROWN v. STATE OF MARYLAND. Syl. 3 (II, 595). Duties on imports. Approved in Sliaw v. United States, 141 Fed. 471, importation of wine in casks having wantage in excess of normal, collector cannot 95 Notes on U. S. Reports. 12 Wheat. 419-460 assess duty without allowance for excess; In re Sydow, 4 Ariz. 210, 36 Pac. 215, upholding Act No. 83, Laws 1893, licensing peddlers. See 112 Am. St. Rep. 649, note. Syl. 5 (II, 596). Statutes — Exception of particular thing. Approved in Bacon v. Locke, 42 Wash. 217, 83 Pac. 721 holding void Laws 1905 providing for license tax on peddlers of goods after ship- meat to state. .k Syl. 6 (II, 597). Power, how exercised. Approved in Northern Securities Co. v. United States, 193 U. S. 336, 48 L. 700, 24 Sup. Ct. 436, upholding enforcement of anti-trust act by injunction ngainst corporation organized in pursuance of combina- tion of stockholders of two competing interstate railroads; Toney v. State, 141 Ala. 125, 109 Am. St. Rep. 23, 37 So. 334, 67 L. R. A. 286, holding void act of 1901, making it penal to break labor contracts. Syl. 7 (II, 597). State tax on imports. Approved in Kehrer v. Stewart, 197 U. S. 65, 49 L. 666, 25 Sup. Ct. 403, upholding Georgia act of 1900, imposing tax on resident manag- ing agents of nonresident meat-packing houses; Commonwealth v. Cald- well, 190 Mass. 357, 76 N. E. 955, holding void Rev. Laws, c. 65, §§ 15, 16, permitting sale by peddlers of agricultural products of United States without license, but forbidding unlicensed sales of foreign prod- ucts; Range Co. v. Campen, 135 N. C. 517, 522, 523, 529, 531, 47 S. E. 662, 664, 666, 607, holding void Revenue Act 1903, § 36, levying tax- on peddlers, as applied to sales by sample of goods manufactured in another state and delivered in original packages. See 104 Am. St. Rep. 299, note. Distinguished in Cook v. Marshall Co., 196 U. S. 269. 270, 275, 49 L. 474, 477, 25 Sup. Ct. 233, upholding Iowa Code, § 5007, as applied to sales at retail of packages of ten cigarettes each which had been imported loose to retail; American Steel etc. Co. v. Speed, 110 Tenn. 546, 100 Am. St. Rep. 814, 75 S. W. 1042, where goods sent in or- iginal packages to agent and delivered in that form to customers, and ninety per cent went to jobbers out of state and balance to jobbers in state, goods taxable. Syl. 8 (II, 599). Loss of character as import. Approved in Range Co. v. Campen, 135 N. C. 526, 47 S. E. 665, hold- ing void Revenue Act 1903, § 36, levying tax on peddlers as applied to sales by sample of goods manufactured in another state and de- livered in original package; Hagan v. City of Richmond, 104 Va. 732, 3 L. R. A. (N. S.) 1120, 52 S. E. 389, upholding power of local au- thorities to keep navigable waters unobstructed where Secretary of War fails to act. Syl. 9 (II, 600). State tax on occupations. Approved in Range Co. v. Campen, 135 N. C. 519, 47 S. E. 662, holding void Revenue Act 1903, § 36, levying tax on peddlers as 12 Wheat. 460-486 Notes on U. S. Reports. 98 applied to sales by sample of goods manufactured in another state and delivered in original package. Syl. 12 (II, 602). Extent of state's taxing power. Approved in Davis v. Cleveland etc. Ey. Co., 146 Fed. 409, cars owned by railroad and delivered by it to another road, with freight, to be used in transportation of such freight to another state, are not attachable under laws of state into which they are carried; United States V. Green, 137 Fed. 188, under Oleomargarine Act, § 1, arrival of renovated butter duly stamped and labeled within state other than that from which it was shipped did not remove liability for violating act; Eange Co. v. Campen, 135 N. C. 514, 516, 47 S. E. 661, holding void Eevenue Act 1903, § 36, levying tax on peddlers as ap- plied to sales by sample of goods manufactured in another state and delivered in original package; Greek etc. Sponge Co. v. Eichard- son etc. Co., 124 Wis. 475, 102 N. W. 890, transaction by which mer- chandise is sold to domestic corporation by foreign corporation, and is consigned to local agent of latter for inspection by purchaser, and after inspection to be delivered in original package, constitutes interstate commerce. Syl. 13 (II, 603). State interference with commerce. Approved in Northern Securities Co. v. United States, 193 U. S. 353, 48 L. 706, 24 Sup. Ct. 436, upholding enfoz-cement of anti-trust act by injunction against corporation organized in pursuance of combination of stockholders of. two competing interstate railroads. 12 Wheat. 460-480, 6 L. 693, UNITED STATES v. GOODING. Syl. 3 (II, 613). Crimes— Burden of proof. Approved in State v. Shuff, 9 Idaho, 130, 72 Pac. 669, it is error to instruct that to establish defense on ground of insanity it must be clearly proved by defendant by preponderance of evidence given upon trial. Syl. 7 (II, 614). Indictment in language of statute. Approved in United States v. Lake, 129 Fed. 501, upholding suflS- oiency of indictment against president of bankrupt corporation for making false oath to its schedule. (II, 611.) Miscellaneous. Cited in Betts v. United States, 132 Fed. 231, 65 C. C. A. 452. 12 Wheat. 480-486, 6 L. 700, UNITED STATES v. MAECHANT & COLSON. Syl. 1 (II, 616). Joint indictment — Peremptory challenges. Approved in Sawyer v. United States, 202 U. S. 159, 160, 161, 50 L. 976, 977, 26 Sup. Ct. 575, conditional right of challenge on be- half of government in criminal case, which has effect of setting aside juror until panel is exhausted, without assigning cause, is 97 Notes on U. S. Reports. 12 Wheat. 498-590 proper; Betts v. United States, 132 Fed. 236, 65 C. C. A. 452, that number of indictments against same defendant for using mails to defraud are tried together by same jury docs not affect right to three peremptory challenges for each indictment. Syl. 4 (II, 618). Separate trials of joint defendants. Approved in Cochran v. United States, 147 Fed. 207, applying principle to trial in Oklahoma territorial court on indictment against laws of United States. 12 Wheat. 498-505, 6 L. 706, POTTER v. GARDNER. Syl. 3 (II, 620). Land charged with testator's debt. Approved in Johnson v, Georgia Loan etc. Co., 141 Fed. 597, bona fide purchaser must allege and prove want of notice and actual payment of purchase money independently of recitals in deed. 12 Wheat. 505-511, 6 L. 709, UNITED STATES v. NICHOLL. Syl. 1 (II, 621). Law requiring periodical settlements directory. Approved in Lake Co. v. Neilon, 44 Or. 20, 74 Pac. 214, failure of tax collector to turn over collections to treasurer as required by law does not raise presumption of conversion. Syl. 2 (II, 621). Liability of sureties on official bond. See 103 Am. St. Rep. 933, note. 12 Wheat. 546-554, 6 L. 723, THE ANTELOPE. Syl. 2 (II, 628). No cost decree against United States. Approved in State v. Williams, 101 Md. 534, 109 Am. St. Rep. 583, 61 Atl. 299, 1 L. R. A. (N. S.) 254, no costs against state. 12 Wheat. 559-561, 6 L. 728, UNITED STATES v. BARKER. Syl. 1 (II, 631). Diligence where government holds draft. Approved in Mountain Copper Co. v. United States, 142 Fed. 629, applying rule in suit to enjoin injuries to timber lands by operation of smelter; Walker v. United States, 139 Fed. 413, 414, limitation in act of 1887, authorizing suits against United States, in case of suit by marshal to recover fees, begins to run as to each itom from time service rendered, and not from expiration of plaintiff's term of office. 12 Wheat. 570-574, 6 L. 732, NEWMAN v. JACKSON. (II, 634.) Miscellaneous. Cited in Wade v. Gould, 8 Okl. 695, 59 Pac. 12, issue of animals follows mother. 12 Wheat. 586-590, 6 L. 737, CHOTARD v. POPE. Syl. 3 (II, 636). No entry on lands previously appropriated. Approved in McMiehael v. Murphy, 12 Okl, 160, 70 Pac. 191, fol- lowing rule. 7 1 Pet. 1-17 Notes on U. S. Eeports. 98 12 Wheat. 599-603, 6 L. 741, DE LA CEOIX v. CHAMBEELAIN. Syl. 1 (II, 638). Spanish grant — Order of survey. Approved in Ainsa v. New Mexico etc. E. E. Co., 4 Ariz. 239, 36 Pac. 214, territorial court cannot recognize unconfirmed Mexican grant as to which no proceedings are pending before Congress, surveyor general, nor private land court, as against pre-emption and homestead claims filed under United States laws. 12 Wheat. 605-611, 6 L. 744, SCOTT v. SHEEEVE. Syl. 2 (n, 639). Equitable relief against judgment. Approved in Dubreuil v. Gaither, 98 Md. 545, 56 Atl. 966, though in action against receiver of insolvent bank for balance of deposit to credit of one as trustee, receiver not allowed setoff of balance due on note of insolvent partnership, he may seek setoff in suit against partners who are real owners of deposit. 12 Wheat. 611-643, 6 L. 746, EAMSAY v. ALLEGEE. Syl. 1 (II, 639). Supplies in home port — Suit in personam. Approved in The Sue, 137 Fed. 135, arguendo. I PETERS. 1 Pet. 1-17, 7 L. 27, HUNT v. EOUSMANIEEB. Syl. 2 (II, 642). Eeformation of instruments. Approved in Carrell v. McMurray, 136 Fed. 670, appljnng rule in reformation of deed given in exchange of farm for stock of goods; Johnson v. Sherwood, 34 Ind. App. 507, 73 N. E. 187, reforming mortgage so that description would show right of way over land; Scott V. Ford, 45 Or. 544, 78 Pac. 746, 68 L. E. A. 469, denying recovery to executors who paid sum to grandchild under mistaken belief that she was heir under grandfather's will. Syl. 4 (II, 644). Equitable relief against mistake of fact. Approved in Wright v. Vocalion Organ Co., 148 Fed. 214, apply- ing rule in suit for specific performance of contract for interest in future inventions. Syl. 6 (II, 645). Eeformation of instruments — Mistake of law. Approved in Utermehle v. Norment, 197 U. S. 56, 49 L. 662, 25 Sup. Ct. 291, ignorance of law that party taking benefit of provi- sion in his favor under will is estopped to assert invalidity of in- strument, though coupled Avith ignorance of evidence on which contest could be based, does not prevent application of rule; Burk 09 Notes on U. S. Reports. 1 Pet. 25-88 V. Johnson, 146 Fed. 214, where, on purchase of copyrighted plana for establishment of mutual burial associations, defendant made misrepresentations that plan not subject to supervision of state insurance departments, rescission not granted; Daniels v. Dean, 2 Cal. App. 428, 84 Pac. 335, applying. rule, where widow, mistakenly believing she was not entitled to homestead in deceased husband's property, executed abandonment in consideration of payment of husband's executors. Syl. 7 (II, 649). Reformation of instruments — Mistake. Approved in dissenting opinion in Thomas v. Provident Life Ins. Co., 138 Fed. 368, majority holding where executors applied pro- ceeds of loan raised by mortgage of real estate belonging to tes- tator to pay debts of estate, estate bound to repay amount advanced with interest, though executors not authorized by terms of will to execute mortgage. 1 Pet. 25-36, 7 L. 37, BANK OF WASHINGTON v. TRIPLETT. Syl. 8 (II, 654). Usage — Deposit in bank for collection. Approved in Cudahy Packing Co. v. State Nat. Bank, 134 Fed. 545, 67 C. C. A. 662, provision for payment of attorney's fees in case note is not paid at maturity does not destroy negotiability of note otherwise negotiable; Landa v. Traders' Bank, 118 Mo. App. 366, 94 S. W. 773, where depositor left draft for collection with bank whose custom was to send collectors to correspondent, who placed proceeds to bank's credit, subject to owner's check, custom did not make correspondent depositor's agent; Pennsylvania R. R. Co. V. Naive, 112 Tenn. 253, 79 S. W. 127, 64 L. R. A. 443, where it is general custom at place to which freight is consigned not to give notice of arrival or make delivery on Fourth of July, negli- gence cannot be predicated on failure of carrier to give notice or make delivery on that day. 1 Pet. 46-88, 7 L. 47, MINOR v. MECHANICS' BANK. ♦ Syl. 1 (II, 658). Statutes— When "may" means "must." Approved in Equitable Life Assurance Society v. Host, 124 Wis. 671, 672, 102 N. W. 584, construing Rev. St. 1898, § 1952, providing for distribution of surplus accumulations of mutual life insurance companies; dissenting opinion in Henry v. State, 87 Miss. 119, 39 So. 893, majority upholding Rev. Code, 1892, § 3201, providing for leasing of convicts on leased farm; dissenting opinion in Jones v. Commis- sioners, 137 N. C. 612, 50 S. E. 302, majority construing Laws of 1903, p. 490, c. 289, relating to issuance of refunding bonds as manda- tory. Syl. 2 (II, 659). Statutes — Meaning of word "may." Approved in United States v. Cornell Steamboat Co., 137 Fed. 459, 69 C. C. A. 603, under Rev, St., § 2984, relating to refunding of 1 Pet. 89-104 Notes on U. S. Eeports. 100 duties on damaged goods, Secretary of Treasury cannot arbitrarily refuse refund; Hampden Trust Co. v. Leary, 186 Mass. 581, 72 N. E. 89, construing deed of trust, Syl. 14 (II, 663). Eatification of cashier's fraud — Stockholders. Approved in American B. Co. v. Spokane etc. Co., 130 Fed. 740, Cj C. C. a. 121, where application for fidelity insurance by loan society stated that secretary insured derived authority from trus- tees, knowledge on part of president that secretary was indebted to society at time of application is not breach of warranty that secretary not indebted; Goshorn v. People's Nat. Bank, 32 Ind. App. 432, 102 Am. St. Eep. 248, 69 N. E. 186, bank is liable for misappropriation by' cashier, who received from depositor check with instructions to transmit amount named to another. Syl. 19 (II, 665). Nolle prosequi not retraxit. Approved in Lindsay v, Allen, 112 Tcnn. 651, 82 S. W. 173, mere dismissal of cause by consent of parties will not bar future action. Syl. 20 (IT, 665). Nolle prosequi — Severance by sureties. Approved in Texas & P. Ey. Co. v. Sheftall, 133 Fed. 724, 66 C. C. A. 552, motion made pending term at hearing of motion for new trial to discontinue suit as to one defendant is timely though vordict and judgment have been entered. (II, 658.) Miscellaneous. Cited in W. L. Wells Co. v. Gastonia Cotton Mfg. Co., 198 U. S. 185, 49 L. 1007, 25 Sup. Ct. 640, incor- porators under charter which declares that they "are hereby created a body politic and corporate " become corporation under laws of Mississippi, for purpose of suit in federal court, as citizens of that state. 1 Pet. 89-93, 7 L. 65, PEAESON v. BANK OF METROPOLIS. Syl. 2 (II, 668). Demand — Payment at particular place. Approved in Nelson v. Grondahl, 13 N. D. 366, 100 N. W. 1095, following rule. 1 Pet. 100-104, 7 L. 69, UNITED STATES v. SALINE BANK. Syl. 1 (II, 669). Exposure to penalty bars discovery. Approved in Ballmann v. Fagin, 200 U. S. 195, 50 L. 437, 26 Sup. Ct. 212, possibility that book which grand jury seeks in investigating liability of national bank employee for disappearance of cash might show that owner was guilty of violating state "bucket-shop" laws, justifies refusal to produce book. Distinguished in Hale v. Ilenkel, 201 U. S. 69, 50 L. 663, 26 Sup. Ct. 370, protection against unreasonable searches and seizures cannot be invoked to justify refusal of corporation officer to produce its 101 Notes on U. S. Eeports. 1 Pet. 110-237 paperf m obedience to subpoena duces tecum, issued in aid of grand jury investigation of violation of anti-trust act by corporation. 1 Pet. 110-135, 7 L. 135, GOVERNOR OF GEORGIA v. MADRAZO. Syl. 4 (II, 671). Suit against state oflicer. Approved in State v. Woodruff, 83 Miss. 117, 36 So. 81, in action against auditor and treasurer as successors of levee commissioners, etate properly made party; dissenting opinion in Henry v. State, 87 Miss. 96, 97, 39 So. 884, 885, majority holding under Const., art. 5, defining executive powers, power of governor to sue at common law was superseded. 1 Pet. 138-150, 7 L. 85, GREENLEAF v. QUEEN. Syl. 2 (II, 673). Stranger to trust cannot object to sale. Cited in Mobile Land Imp. Co. v. Gass, 142 Ala. 52S, 39 So. 232, arguendo. 1 Pet. 105-169, 7 L. 96, WEIGHT v. LESSEE OF IIOLLINGSWORTH. Syl. 2 (II, 677). Ruling on amendments or new trial discretionary. Cited in Cassett v. Mitchell Coal & Coke Co., 150 Fed. 43, arguendo. 1 Pet. 170-192, 7 L. 98, McLANAHAN v. UNIVERSAL INS. CO. Syl. 11 (II, 681). Insurance — Material representations. Approved in Kerr v. Union Marine Ins. Co., 130 Fed. 417, 64 C. C. A. 617, where misrepresentation as to time of sailing of vessel on which insurance was requested was made in reph* to specific question bj' insurer, it is conclusively presumed to have been material. 1 Pet. 193-221, 7 L. 108, COMEGYS v. VASSE. Syl. 3 (II, 683). Assignability of torts and property rights. Approved in In re Burnstine, 131 Fed. 831, whore bankrupt prior to adjudication transferred to wife claim against railroad for killing of son, in consideration of payment of funeral expenses, it was valid to extent it was accepted as security for amount paid, and husband's bankruptcy trustee was entitled to assignment of claim only on pay- ment of amount expended by wife. (II, 681.) Miscellaneous. Cited in Smith v. Love, 49 Fla. 239, 38 So. 379, where patent obtained by fraudulent imposition on land ofiicers, equity gives relief to party entitled to patent. 1 Pet. 232-237, 7 L. 125, HORSBUEY v. BAKER. Syl. 1 (n, 690). Forfeitures not enforceable in equity. Approved in Jensen v. Deep Creek Farm etc. Co., 27 Utah, 77, 74 Pac. 430, following rule; Brewster v. Lauyon Zinc Co., 140 Fed. 818, enforcing forfeiture of oil lease for breach of condition to continue work of development with reasonable diligence; Duff v. Gilliland, 135 1 Pet, 264-342 Notes on U. S, Eeports. 102 Fed. 585, refusing to cancel contract assigning title to patented ma- chine for certain royalties received from licenses, where assignee built machines at profit and granted licenses to those for whom it built; Wheeling etc. R. R. Co. v. Town of Triadelphia, 58 W. Va. 520, 52 S. E. 512, enjoining forfeiture of street railway privilege in street. Distinguished in Sawyer v. Cook, 188 Mass. 167, 74 N. E. 357, where three persons bought land to sell in subdivisions, and legal title was put in two of them, all three to use best endeavors to sell, and one who held no legal title and who furnished no money ceased to par- ticipate and assigned interest, he could not require accounting of profits after thirty years, 1 Pet. 264-292, 7 L. 138, SCHIMMELPENNICH v. BAYARD. Syl. 2 (II, 694). Drafts— Promise to accept. Approved in Bank of Seneca v. First, Nat. Bank, 105 Mo. App. 726, 78 S. W. 1093, where bank issued general letter of credit, checks drawn by bearer of letter and cashed by bank having no knowledge of letter cannot be applied in extinguishment of amount named in letter, 1 Pet. 299-310, 7 L. 152, MECHANICS' BANK v. SETON. Syl. 1 (II, 697), Specific performance — Personalty contracts. Approved in Ridenbaugh v. Thayer, 10 Idaho, 672, 80 Pac. 233, specifically enforcing contract to furnish wood, defendant to furnish money necessary to chop and deliver wood, when contract partly per- formed; Livesley v. Johnston, 45 Or. 49, 106 Am. St. Rep. 647, 76 Pac. 950, 65 L. R. A. 783, granting specific performance of contract of sale and delivery of hops at certain price, hops to be grown in suc- ceeding five years, buyer to advance cost. Syl. 4 (II, 098), Who are necessary parties. Apjirovod in Tod v. Crisman, 123 Iowa, 699, 99 N. W. 688, contractor to pay whom, board of supervisors has ordered levy of tax is not nec- essary party to certiorari to test legality of order. 1 Put. 31S-327, 7 L. 160, DOX v. POSTMASTER GENERAL, Syl. 2 (II, 703). Laches of government ofiicers — Sureties. Approved in Christie Street Com. Co. v. United States, 129 Fed. 509, statements made by departmental ofiicers to claimant for tax pending appeal to internal revenue commissioner, to effect that claim wouhl be allowed or had been certified favorably to auditing ofiice, do not estop government, so as to avoid operation of limitations. See 101 Am. St. Rep. 152, note. 1 Pet. 328-342, 7 L. 164, ELLIOTT v. PEIRSOL. Syl. 10 (II, 705). Judgment binding till reversed. Approved in Southern Pine L. Co. v. Ward, 16 Okl. 158, 85 Pac. 467, following rule; Ex parte Robinson, 144 Fed. 836, where circuit court 103 Notes on U. S. Keporta. 1 Pet. 351-454 had no jiirisfliotion of subject matter of suit, adjuclication of con- tempt for violating injunction is void and collaterally attackable by habeas corpus; United States v. Atchison etc. Ey. Co., 142 Fed. 182, applying rule to contempt proceedings based on violation of void in- junction against granting rebates; Harper v. Eankin, 141 Fed. 630, judgment of court of competent jurisdiction in favor of national bank receiver and against defendant duly served, based upon findings that defendant while officer of bank embezzled funds, is conclusive of character of indebtedness with reference to release of it in bank- ruptcy; Fay V. Costa, 2 Cal. App. 244, 83 Pac. 277, plaintiff's action against administrator, who took possession of property in belief that he was dead, is barred three years after knowledge; In re Patswald, 5 Okl. 795, 50 Pac. 141, when judge adjourned court for two days and wont to another county while jury was not deliberating in criminal case, verdict rendered on his return is void. 1 Pet. 351-375, 7 L. 174, BELL v. MORRISON. Syl. 6 (II, 716). Object of statute of limitations. Approved in Lynchburg Cotton etc. Co. v. Travelers' Ins. Co., 140 Fed. 724, where insurance policy provides that action barred if not commenced within thirty days, and conduct of company induces de- lay beyond time, limitation runs from refusal to pay. See notes, 101 Am. St. Rep. 145; 102 Am. St. Rep. 757, 709. Syl. 7 (II, 720). Limitations — New promise. Approved in In re McGuire, 132 Fed. 394, holding ducbill reciting amounts due and dates did not remove bar of limitations; Kleis v. McGrath, 127 Iowa, 462, 109 Am. St. Rep. 396, 103 N. W. 372, 69 L. R. A. 260, execution of note for unpaid interest on prior note does not remove bar of limitations. 1 Pet. 376-3S5, 7 L. 185, MECHANICS' BANK OF ALEXANDRIA v. LYNN. Syl. 1 (II, 731). Specific performance — Modification of agreement. Approved in Wright v. Vocalion Organ Co., 148 Fed. 214, applying rule in suit for specific performance of contract for interest in future inventions. 1 Pet. 386-454, 7 L. 189, CONRAD v. ATLANTIC INS. CO. Syl. 7 (II, 734). Mortgage transfers property as security. Approved in In re Moore, 146 Fed. 188, where instrument given as security for loan, and purporting to be deed, but not accompanied by reconveyance bond as required by Georgia code, and containing con- tradictory recitals, constitutes common-law mortgage, and where prop- erty was in debtor's possession, and surrendei:ed to bankruptcy trus- tee, it is subject to sale as part of assets of his estate. 1 Pet. 455-475 Notes on U. S. Eeports. 104 Syl. 8 (II, 736). Jiulgment lien as property. Approved in Illinois Nat. Bank v. School Trustees, 211 111. 511, 71 N. E. 1074, junior mortgagee may redeem from senior mortgagee and thereby become subrogated to all rights of such senior mortgagee. Syl. 12 (n, 739). Bills of lading pass by indorsement. Approved in General Electric Co. v. Southern Ky., 72 S. C. 254, 110 Am. St. Eep. 603, 51 S. E. 696, where freight shipped under bill of lading to order of shipper, notify third party, and draft was attached, carrier cannot deliver to third party without production of bill prop- erly indorsed. Syl. 14 (II, 739). Bills of lading — Assignment by owner of goods. See 105 Am. St. Kep. 342, note. 1 Pet. 455-468, 7 L. 219, BANK OP COLUMBIA v. HAGNER. Syl. 2 (II, 754). Vendor and vendee's undertaking dependent. Approved in Michigan Home Colony Co. v. Tabor, 141 Fed. 336, following rule; Stein v. Waddell, 37 Wash. 639, 80 Pac. 186, where vendee's covenants to pay price and vendor's covenants to execute and deliver deed are mutual, vendor cannot sue to forfeit contract because of purchaser's failure to pay price on day specified, without execut- ing and tendering deed. Distinguished in Watkins v. American Nat. Bank, 134 Fed. 42, 67 C. C. A. 110, where vendor sued vendee for balance due on purchase money note,' and vendee denied liability to pay balance because title to part of property lost, and court found value of unconveyed portion^ and gave judgment for defendant, vendee barred from suing for dif- ference between value as found and amount due on note. Syl. 5 (II, 748). Land sale — Time of essence of contract. Approved in Seibel v. Purchase, 134 Fed. 488, applying rule where defendant sold option for purchase of realty exercisable by certain date but there was mortgage on property; Wright v. Astoria Co., 45 Or. 229, 77 Pac. 600, where, under contract, deed put in escrow for de- livery on payment after examination of title, title passed to grantee on delivery of deed as against purchaser for grantor on day deed de- livered. 1 Pet. 409-475, 7 L. 224, DOE EX DEM. ELMORE v. GEYMES. Syl. 1 (II, 750). Peremptory nonsuit in federal court. Approved in Parks v. Southern Ry. Co., 143 Fed. 278, applying rule in action for damages for negligent killing of person; Huntt v. Mc- Namee, 141 Fed. 294, where voluntary nonsuit permitted by state practice, it is discretionary with federal court to refuse nonsuit after conclusion of plaintiff's evidence, and motion by defendant for direc- tion of verdict had been sustained. 105 Notes on U. S. Reports. 1 Pet. 503-546 1 Pet. 503-510, 7 L. 239, DAVIS v. MASON". Syl. 2 (II, 756). Curtesy in wife's wild lands. See 112 Am. St. Rep. 582, note. 1 Pet. 511-546, 7 L. 242, AMERICAN INS. CO. v. THREE HUN- DRED AND FIFTY-SIX BALES OF COTTON. Syl. 5 (II, 759). Transfer of territory by nations. Approved in United States v. Winans, 198 U. S. 383, 49 L. 1093, 25 Sup. Ct. 662, fishing rights in Columbia river secured to Yakima Indians by treaty prevail over rights acquired to lands bordering on river, by virtue of patent; Dorr v. United States, 195 U. S. 141, 49 L. 129, 24 Sup. Ct. 808, upholding denial of jury trial in Philippines; In re Chavez, 147 Fed. 75, on bankruptcy of husband having only com- munity estate under New Mexico laws, claims of antenuptial creditor are postponed until after community creditors satisfied. Syl. 7 (II, 759). Power of governing territory. Approved in Kepner v. United States, 195 U. S. 124, 49 L. 122, 24 Sup. Ct. 797, government cannot appeal from acquittal in court of first instance in the Philippines; Kneeland v. Korter, 40 Wash. 363, 82 Pac. 609, 1 L. R. A. (N. S.) 745, Congress has power to grant tide land between high and low water work within a territory of United States. Syl. 9 (II, 761). Jurisdiction of territorial courts. Approved in Higgins v. Tax Assessors of Pawtucket, 27 R. I. 408, 63 Atl. 37, upholding Practice Act 1905, p. 4, § 12, giving superior court jurisdiction of writs of habeas corpus, mandamus and quo war- ranto. Syl. 13 (II, 762). Admiralty jurisdiction in territorial courts. Approved in Allen v. Myers, 1 Alaska, 118, after applicant for patent has once initiated proceedings in land office under Rev. St., §§ 2325, 2326, independent equity suit to quiet title is not maintain- able. Syl. 14 (II, 763). Territorial courts not constitutional courts. Approved in Ex parte Moran, 144 Fed. 598, upholding jurisdiction of circuit court of appeals in habeas corpus to inquire into power of Oklahoma territory court to imprison one convicted of capital crime; Wallace v. Adams, 143 Fed. 725, upholding jurisdiction of United States in Indian Territory over ejectment by Indian allottee against possessor of allotment; Welty v. United States, 14 Okl. 15, 76 Pac. 123, in trial of federal cases in territorial district court, territorial procedure prevails; Fuller etc. Co. v. Johnson, 8 Okl. 605, 58 Pac. 747, United States court of Indian Territory is not United States court within Okl. St. 1890, p. 930, § 2; United States v. Choctaw etc. R. R. Co., 3 Okl. 452, 41 Pac. 745, Rev. St., § 1001, exempting United States from giving bond on appeal, does not apply to appeals from 1 Pet. 591-669 Notes on U. S. Reports. 106 territorial district to territorial supreme court; Burke v. Territory, 2 Okl. 515, 37 Pac. 835, Rev. St., § 725, limiting powers of United States court to summarily punish for contempt does not apply to territorial courts. 1 Pet. 591-G03, 7 L. 275, TAYLOR v. RIGGS. Syl. 1 (IT, 775). Best evidence. Approved in Security Trust Co. v. Robb, 142 Fed. 79, refusing copy of letter where adverse party not subpoenaed to produce original. Syl. 4 (II, 776). Foundation for secondary evidence. Approved in Jenkins v. Emmons, 117 Mo. App. 9, 94 S. W. 814, where contents of written instrument have been proven, party may testify as to its loss in suit against administrator. Syl. 6 (II, 777). Contracts — Preceding conversations inadmissible. Approved in Capell v. Fagan, 30 Mont. 512, 77 Pac. 56, applying rule to deed. Syl. 8 (II, 777). Sufficiency of parol to prove written contract. Approved in Capell v. Fagan, 30 Mont. 513, 515, 77 Pac. 56, 57, applying rule to deed. 1 Pet. 620-625, 7 L. 287, McDONALD v. SMALLEY. Syl. 3 (II, 782). Contracts — Motives do not affect validity. Approved in Bedford etc. Co. v. Oman, 134 Fed. 448, stranger to contract to maintain switch over private property, who is interested in maintenance of switch by railroad, cannot complain of contract as fraudulent merely because purchase price on sale of switch was paid in notes. 1 Pet. G40-654, 7 L. 295, BARRY v. COOMBE. Syl. 3 (II, 785). Statute of frauds — Place of signature. Approved in Delaware Ins. Co. v. Pennsylvania Ins. Co., 126 Ga. 388, 391, 55 S. E. 333, 335, upholding contract of fire insurance signed at place other than end. Syl. 6 (II, 786). Evidence to remove ambiguity in writing. Approved in Ismon v. Loder, 135 Mich. 351, 97 N. W. 771, uphold- ing deed by corporation signed by its president and secretary whose signature had appended to it designation "Pres.," "Sec." 1 Pet. 655-669, 7 L. 302, ROSS v. BARLAND. Syl. 2 (II, 788). Legal title prevails in ejectment. Approved in United States v. Anderson, 194 U. S. 399, 48 L. 1039, 24 Sup. Ct. 716, United States is precluded from retaining, as against grantees of indemnity lands, sum eolleeted from trespassers thereou for removal of stone during period of selection of lands to supply deficiency. 107 Notes on U. S. Keports. 2 Pet. 1-57 Syl. 3 (II, 788). Ejectment— Practice. Approved in Peyton t. Desmond, 129 Fed. 11, 63 C. C. A. 651, patent issued under homestead laws relates back to initiation of claim, and gives patentee right to recover value of timber wrongfully cut and removed from land after initiation of claim, and prior to is- suance of patent. 1 Pet. 686-694, 7 L. 315, BIDDLE v. WILKINS. Syl. 5 (II, 792). Administrator's suit — Profert of letters. Approved in Moore v. Petty, 135 Fed. 673, 68 C. C. A. 30G, executor may sue in another state to recover of his agent proceeds of sale of realty belonging to decedent's estate. Syl. 7 (II, 793). Action on judgment by administrator. Approved in Coram v. Ingersoll, 148 Fed. 176, judgment against ancillary administrator, in action on chose in action, deemed assets of estate in his jurisdiction, bars ancillary administrator in another jur- isdiction from suing on same cause of action. II PETERS. 2 Pet. 1-24, 7 L. 327, PENNOCK v. DIALOGUE. Syl. 2 (II, 795). Necessity for requests for instructions. Approved in Chicago Live Stock Com. Co. v. Fix, 15 Okl. 42, 78 Pac. 317, following rule: Steel Rail Sup. Co. v. Baltimore etc. Ey. Co., 130 Fed. 435, 64 C. C. A. 635, exception to so much of charge as states that only question is (stated question), does not support assignment of error based on failure to submit another question on which no in- struction asked. Syl. 7 (II, 797). Patents— Prior public use. Distinguished in Eastman v. Mayor etc. of N. Y., 134 Fed. 853, 69 C. C. A. 628, where inventor of fire-engine pump put device on engine of which he was engineer, where it was used for years, and shown to manufacturers, their placing it on other engines is not fraudulent. 2 Pet. 25-57, 7 L. 335, COLUMBIAN INS. CO. v. LAWEENCE. Syl. 7 (II, 800). Insurer must disclose all facts. Approved in Parsons, Eich & Co. v. Lane, 97 Minn. 113, 106 N. W. 492, condition in fire policy for unconditional ownership by insured and for ownership of lot on which building stands makes it incumbent on insured to disclose ground lease where no inquiries made; Tyree y. Virginia Ins. Co., 55 W. Va. 68, 104 Am. St. Rep. 983, 46 S. E. 2 Pet. 58-169 Notes on IT. S. Reports. 108 708, 66 L. E. A. 657, false statement by applicant to insurance agent that he is sole and absolute owner avoids policy. 2 Pet. 58-95, 7 L. 347, GARDNER v. COLLINS. Syl. 3 (n, 804). Statutes — Intent gathered from words of act. Approved in dissenting opinion in Irwin v. Irwin, 2 Okl. 220, 37 Pac. 560, majority holding act of Congress ratifying territorial law granting probate court jurisdiction in divorce cases did not deny power to repeal act, Syl. 5 (II, 805). Succession — Heirs of the blood. Approved in Finley v. Abner, 129 Fed. 736, 64 C. C. A. 262, under Kansas statute of descent which governs descent of allotments in Indian Territory, where Indian woman, whose parents were dead, died unmarried and without issue, but leaving half-brother, he in- herited to exclusion of uncles and cousins. 2 Pet. 137-149, 7 L. 374, VAN NESS v. PACARD. Syl. 2 (II, 812). Removal of fixtures by tenant. Approved in Shafter Estate Co. v. Alvord, 2 Cal. App. 605, 84 Pac. 280, upholding right of lessee of game preserve to remove buildings during term; Hay ward v. School District No. 9, 139 Mich. 542, 102 N. W. 1000, school district is owner of schoolhouse which it erects on leased land, and may remove same within reasonable time after ter- mination of lease on contingency; Winans v. Beidler, 6 Okl. 605, 52 Pac. 405, homestead settler making improvements on government land, whose entry afterward canceled, may remove same after land awarded to adverse settler; Crocker v. Donovan, 1 Okl. 174, 30 Pac. 377, improvements made by homesteaders on their claims are taxable, 2 Pet. 150-156, 7 L. 379, BOYCE v. ANDERSON. Syl. 2 (II, 815). Liability of slave carriers. Approved in Lewis v. Pennsylvania etc. R. R. Co., 70 N. J. L. 135, 56 Atl. 129, carrier of livestock not liable for injuries to cattle caused by failure to feed and water them where contract provided that shipper should do so. 2 Pet. 157-169, 7 L. 381, THOMPSON v. TOLMIE. Syl. 3 (II, 817). Judgments— Collateral attack. Approved in Threadgill v. Colcord, 16 Okl. 470, 85 Pac. 710, apply- ing rule to receiver's sale; Eddy v. People, 218 111. 616, 75 N. E. 1072, under Laws 1879, relating to police pensions, board of trustees i^n passing on right of applicant for pension acts in quasi-judicial capacity and its finding is binding. Syl. 4 (II, 819). Collateral attack on judicial sale. Approved in Clark v. Rossier, 10 Idaho, 359, 78 Pac. 360, applying rule to sale of mining claims. 109 Notes on U. S. Eeports. 2 Pet. 201-317 2 Pet. 201-215, 7 L. 397, HUNT v. WICKLIFFE. Syl. 6 (II, 828). "Two months" does not mean eight weeka. Approved in Bertwell v. Haines, 10 Okl. 471, 63 Pac. 702, term "month" in land contest statute means calendar month and not period of thirty days. 2 Pet. 245-252, 7 L. 412, WILLSON v. BLACKBIRD CREEK MARSH CO. Syl. 2 (II, 832). Benefits to public through medium of individuals. Approved in Pittsburg etc. Ey. Co. v. Wolcott, 162 Ind. 405, 69 N. E. 453, upholding Burns' Eev. St., §§ 4401-4410, relating to open- ing of streets. Syl. 3 (II, 832). Commerce — State law conflicting with congres- sional. Approved in Allen v. Eeed, 10 Okl. 124, 60 Pac. 78S, holding void territorial act regulating change of county seats. Syl. 4 (II, 833). Regulation of navigation by states. Approved in Manigault v. Springs, 199 U. S. 478, 482, 50 L. 277, 279, 26 Sup. Ct. 127, upholding state statute authorizing construction of dam across navigable stream to subserve drainage of lowlands; The Nonpariel, 149 Fed. 523, railroad maintaining bridge over Erie Canal with piers resting on cribs which extend over piers on canal sides without marking location is liable for damage by collision therewith; United States v. Union Bridge Co., 143 Fed. 390, 391, up- holding 30 Stat. 1153, relating to alteration of bridges which Secre- tary of War decides obstruct navigation; Maine Water Co. v. Knick- erbocker Steam Towage Co., 99 Me. 475, 59 Atl. 954, water pipe line across Kennebec river by authority of legislature and in accordance with plans authorized by Secretary of "War is not unlawful obstruc- tion; Crookston Waterworks etc. Co. v. Sprague, 91 Minn. 46S, 98 N. W. 349, 64 L. E. A. 977, construing Gen. St. 1894, §§ 2385, 2386, re- lating to log dams; Kansas City etc. E. R. Co. v. Wiygul, 82 Miss. 231, 33 So. 967, 61 L. R. A. 578, railroad which, under grant from state, has built bridge over navigable stream, may repair same. 2 Pet. 253-317, 7 L. 415, FOSTER v. NEILSON. Syl. 4 (II, S3S). Individual rights under treaties. Approved in In re Minook, 2 Alaska, 208, construing Russian treaty with reference to citizenship of half-breeds who have severed tribal relations. Syl. 7 (II, 839). Treaties equivalent to statutes. See 112 Am. St. Eep. 108, note. 2 Pet. 318-416 Notes on U. S. Reports. 110 2 Pet. 318-326, 7 L. 437, BANK OF KENTUCKY v. WISTER. Syl. 4 (II, 842). Assumpsit for bank deposit. Approved in Retan v. Union Trust Co., 134 Mich. 8, 95 N. W. 1008, deposits in bank of moneys paid into court are not special deposits entitled to priority over others on insolvency of bank. Syl. 6 (II, 843). Federal courts — Suits by holder of note. Distinguished in Utah-Nevada Co. v. De Lamar, 133 Fed. 122, 66 C. C. A. 179, suit by assignee of oral contract to recover money due thereon cannot be maintained in federal court unless assignor could Bue therein. 2 Pet. 358-369, 7 L. 450, AMERICAN FUR CO. v. UNITED STATES. Syl. 2 (II, 847), Liquor in Indian country — Burden of proof. Approved in State v. Barrett, 138 N. C. 640, 50 S. E. 510, upholding Laws N. C. 1903, prohibiting selling of liquor without license and making possession of liquor in quantities over quart prima facie evidence of his keeping it for sale. 2 Pet. 370-379, 7 L. 454, DANDRIDGE v. WASHINGTON'S EXECUTORS. Syl. 4 (II, 850). Executor represents residuaries. Approved in Rankin v. City of Big Rapids, 133 Fed. 672, 66 C. C. A. 568, where it had been determined in probate proceedings by receiver of insolvent national bank to establish claim for assessment on de- cedent 's stock that decedent was owner, distributees are estopped to relitigate decedent's ownership in subsequent suit to recover sub- sequent assessment. 2 Pet. 380-416, 7 L. 458, SATTERLEE v. MATTHEWSON. Syl. 2 (II, 850). Retrospective validating statute. Approved in Lohrstorfer v. Lohrstorfer, 140 Mich. 556, 104 N. W. 144, act of 1905, amending act of 1897, relating to payment of fees on appeal, by providing for reinstatement of appeal dismissed for nonpaj^ment of register's fees, is void as to appeals dismissed prior to amendment. Syl. 4 (II, 852). Exercise of judicial functions by legislature. Approved in Eddy v. People, 218 111. 616, 75 N. E. 1072, under Laws 1879, relating to police pensions, board of trustees in passing on application for pension acts in quasi-judicial capacity and its find- ing is binding. Syl. 5 (II, 852). Retrospective laws valid unless contracts im- paired. Approved in Whitlock v. Hawkins, 105 Va. 250, 53 S. E. 403, up- holding act of 1906, amending and re-enacting Code, c. 23, relating to assessment of land. Ill Notes on U. S. Reports. 2 Pet. 417-481 2 Pet. 417-441, 7 L. 470, EEYNOLDS v. M 'ARTHUR. Syl. 1 (II, 856). Retrospective construction of statutes. Approved in United States v. Jackson, 143 Fed. 788, 32 Stat. 397, relating to allowance to prisoners for good time, did not apply to prisoners sentenced before act took effect. 2 Pet. 449-480, 7 L. 481, WESTON v. CITY COUNCIL OF CHARLES- TON. Syl. 1 (II, 857). Suit defined. Approved in South Dakota etc. Ry. Co. v. Chicago etc. Ry. Co., 141 Fed. 580, proceeding by railroad to condemn right of way under South Dakota statute is removable where requisite diversity of citizen- ship and amount exist. Syl. 2 (II, 858). Prohibition is suit. Approved in State v. Chittenden, 127 Wis. 494, 107 N. W. 508, certiorari lies to review action of dental board in passing upon repu- tability of college under state statute. Syl. 7 (II, 859). Eight to tax unlimited. Approved in Gay v. Thomas, 5 Okl. 10, 46 Pac. 581, upholding act of 1895, relating to taxation or personalty in unorganized country or reservation. Syl. 10 (II, 861). State tax on government stock. Approved in South Carolina v. United States, 199 U. S. 452, 466, 50 L. 266, 272, 26 Sup. Ct. 110, United States may exact license tax from selling agents of state which has taken charge of liquor business; Mosely ^. State, 115 Tenn. 56, 57, 61, 86 S. W. 715, 716, 717, interest on United States bonds does not become taxable immediately upon being paid into hands of bondholder; dissenting opinion in Kingsley V. Merrill, 122 Wis. 202, 99 N. W. 1049, 67 L. R. A. 200, majority up- holding Rev. St. 1898, § 1036, making debts due from solvent debt- ors subject to taxation. Distinguished in Hibernia Savings etc. Soc. v. San Francisco, 200 U. S. 313, 50 L. 496, 26 Sup. Ct. 265, United States orders for inter- est accrued on registered government bonds are taxable by state in hands of owner. (II, 857.) Miscellaneous. Cited in State v. Godfrey, 54 W. Va. 71, 46 S. E. 192, as to whether prohibition lies to enjoin prosecution under void ordinance. 2 Pet. 481, 7 L. 492, PRESIDENT ETC. BANK OF UNITED STATES v. WEISINGER. Syl. 1 (II, 862). Death pending submission — Entry of order. Approved in Teske v. Dettberner, 70 Neb. 559, 9S N. W. 62, following rule. 2 Pet. 492-585 Notes on U. S. Eeports. 112 2 Pet. 492-526, 7 L. 496, BANK OF HAMILTON v. DUDLEY'S LESSEE. Syl. 4 (II, 865). Eepeal of law authorizing administrator's sales. Approved in Scott v. Jenkins, 46 Fla, 529, 35 So. 105, following rule. 2 Pet. 527-542, 7 L. 508, BANK OE UNITED STATES v. OWENS. Syl. 1 (II, 867). Usury defined. Approved in Gunby v. Armstrong, 133 Fed. 433, 66 C. C. A. 627, construing contract of loan association with borrowing stockholder as not being usurious. Syl. 2 (II, 868). Bank loan at ultra vires interest. Approved in Urwan v. Northwestern Nat. Life etc. Co., 125 Wis. 360, 103 N. W. 1105, under Eev. St. 1898, § 1955 o, prohibiting discrim- inatory contracts of insurance, where special agent's contract is issued, in violation of statute, as inducement to taking out of policy, insurer may sue for return of money paid in consideration of issu- ance of policy. Syl. 6 (II, 870). Enforcement of illegal contracts. Approved in Montgomery v. Whitbeck, 12 N. D. 392, 96 N. W. 329, holding void mutual insurance policy issued in disregard of statutes regulating same; Light v. Conover, 10 Okl. 737, 63 Pac. 968, no ac- tion can be maintained on lease for pasturage of cattle on Indian reservation made without approval of Indian agent; Garst v. Love, 6 Okl. 59, 55 Pac. 22, in suit for compensation under cattle pasturage contract, answer alleging pasture incloses government lafd states good defense; Kelly v. Courter, 1 Okl. 282, 30 Pac, 373, where one leases premises for sale of liquor, sale being illegal, tenant cannot recover for damage to liquor by landlord's breach of agreement to supply ice as agreed; dissenting opinion in Monahan v. Monahan, 77 Vt. 151, 59 Atl. 174, 70 L. R. A. 935, majority holding where com- plaint seeking to impress securities with trust alleges they were takeh in defendant's name without his knowledge and issues are only as to title, relief not denied because securities placed in defendant's name to avoid taxation; Escondido Lum. etc. Co. v. Baldwin, 2 Cal. App. G08, 84 Pac. 285, arguendo. 2 Pet. 566-585, 7 L. 521, BEATTY v. KURTZ. Syl. 1 (II, 875). What is valid dedication. Approved in Corsicana v. Anderson, 33 Tex. Civ. 600, 78 S. W. 263, following rule. Syl. 2 (II, 876). Charitable uses — Particular grantee unnecessary. Approved in Penny v. Central Coal & Coke Co., 138 Fed. 774, where unincorporated religious society had had uninterrupted possession of land in controversy for thirty years, and had used it as its own under 113 Notes ou U. S. Reports. 2 Pot. 5'j5-663 lost deed, it is presumed that title legally conveyed to trustees for its benefit. Syl. 4 (IT, 877). Grant of land afterward used for cemetery. Limited in Ex parte McCall, 68 S. C. 492, 47 S. E. 974, church which has allowed members to bury dead in church lot for twenty years not enjoined, where cemetery much neglected and church about to be moved, from selling lot and removing bodies. Syl. 6 (II, 878). Suit by members of religious society. Approved in Bingle v. State, 161 Ind. 370, 68 N. E. 646, upholding indictment for larceny alleging property stolen was property of several persons named "as trustees of" church. 2 Pet. 595-612, 7 L. 5,31, ENGLISH v. FOXHALL. Syl. 4 (II, 881). Relief under general prayer. Approved in Lockhart v. Leeds, 195 U. S. 437, 49 L. 209, 25 Sup. Ct. 76, under bill averring title to mine acquired under relocation made in pursuance of alleged fraudulent conspiracy with complainant's partner, whereby partner was to fail to. perfect original location, injunction against further mining may be granted. 2 Pet. 613 626, 7 L. 538, CHIRAC v. REINECKER. Syl. 5 (II, 882). Ejectment against tenant bars landlord. See 112 Am. St. Rep. 27, 32, note. 2 Pet. 627-663, 7 L. 542, WILKINSON v. LELAND. Syl. 4 (II, 884). Law violating property rights. Approved in King v. Hatfield, 130 Fed. 582, holding void West Vir- ginia constitutional and statutory provisions relating to forfeiture of tracts of over one thousand acres; McKinster v. Sager, 163 Ind. 675, 106 Am. St. Rep. 268, 72 N. E. 856, 68 L. R. A. 273, holding void Acts 1903, p. 276, c. 153, making sales by merchant, except in due course of trade, void as to creditors unless certain conditions as to schedule of creditors complied with; Ex parte Anderson, 46 Tex. Cr. 390, 392, 81 S. W. 982, 983, city court has no jurisdiction to try an accused for alleged violation of state penal statute. Syl. 5 (II, 886). Heir's title vests encumbered by liens. See 112 Am. St. Rep. 1022, note. Syl. 7 (II, 887). Act confirming void executor's sale valid. Approved in Fuller v. Hager, 47 Or. 244, 83 Pae. 783, Laws 1899, p. 64, § 3, validating guardians' sales made to bona fide purchasers, cured failure of guardian to take statutory oaths before fixing time and place of sale. Syl. 8 (II, 887). Validity of retrospective laws. Approved in Lohrstrofer v. Lohrstrofer, 140 Mich. 556, 104 N. W. 144, act 1905, amending act of 1897, relating to payment of fees ou 8 5 Pet. 12-56 Notes on U. S. Reports. Il4 appeal, by providing for reinstatement of appeals dismissed for non- payment of register's fees, is void as to appeals dismissed prior to amendment. Syl. 9 (II, 889). Statutes construed according to intent. Approved in Wadsworth v. Boysen, 148 Fed. 776, construing Act of Cong., March 3, 1905, ratifying agreement by w^hich Wyoming Indians ceded, for disposal by government, lands in Wind River Reservation; Parsliall v. United States, 147 Fed. 436, railway postal clerks cannot recover against government for expenses for bed and board vyhile on regular run, in addition to fixed salary; United States v. Jackson, 143 Fed. 787, 32 Stat. 397, relating to allowance for good time, does not apply to prisoners sentenced before it took eifect; Braitliwaite v. Cameron, 3 Okl. 635, 38 Pac. 1086, legislature may provide for payment of compensation out of territorial treasury to stenographer employed by legislature. Ill PETERS. 3 Pet. 12-32, 7 L. 585, UNITED STATES v. BUFORD. Syl. 1 (III, 9). Treasury transcripts as evidence. Approved in United States v. Pierson, 145 Fed. 819, in action on Indian agent's bond, transcript of books and proceedings of Treas- ury Department was admissible, though it contained some items of credit or debit concerning which it was not competent evidence. Syl. 2 (III, 9). State not barred by limitations. See 101 Am. St. Rep. 151, 165, note. Syl. 5 (III, 10). Assignment of claim to government. See 101 Am. St. Rep. 183, note. 3 Pet. 43-56, 7 L. 596, WILLISON v. WATKINS. Syl. 1 (III, 14). Tenant cannot dispute landlord's title. Approved in Ilagar v. WikoflF, 2 Okl. 584, 39 Pac. 282, one going into possession of town lot on public lands as tenant of one who has erected building cannot assert claim adverse to landlord till he surrenders premises. Syl. 4 (III, 16). Tenant disclaiming tenure. Approved in Stover v. Davis, 57 W. Va. 204, 205, 49 S. E. 1025, 1026, following rule; Dawson v. Falls City Boat Club, 136 Mich. 263, 99 N. W. 19, good faith is not element of adverse possession. Syl. 5 (III, 18). Adverse possession by disclaimer of tenure. Approved in Patterson v. Hewitt, 11 K M. 42, 66 Pac. 565, 55 L. K. A. 658, Conip. Laws, 1897, §§ 2916, 2930, apply limitations 115 Notes on U. S. Reports. 3 Pet. 99-208 to trusts founded on verbal agreements where defendant has not fraudulently concealed his cause of action, or its existence thereof from party entitled. 3 Pet. 99-192, 7 L. 617, INGLIS v. SAILORS' SNUG HARBOR. Syl. 2 (III, 28). Wills — Designation of trustees by official char- acter. Approved in Thompson v. Hale, 123 Ga. 310, 51 S. E. 385, superior court may fill vacancies in trusteeship of trust for educational pur- poses where no provision made therefor. ' Syl. 3 (III, 28). Bequest to society — Subsequent incorporation. Approved in Stearns v. Newport Hospital, 27 R. I. 317, 62 Atl. 135, hospital established under Laws 1873, § 222, may administer trust under will for care of sick, injured or infirm poor persons. Syl. 5 (HI, 31). Devise on happening of future event. Approved in Brigham v. Peter Bent Brigham Hospital, 134 Fed. 522, 67 C. C. A. '393, construing bequtst to trustees to manage and invest income for certain period, at expiration of which they were to form corporation to which estate and axicumulations should be transferred for purpose of founding hospital. Syl. 7 (III, 32). Wills— Enforcement of testator's intent. Approved in Speer v. Colbert, 200 U. S. 145, 50 L. 413, 26 Sup. Ct. 201, upholding bequest of sum not to exceed $5,000, to be equally ■ divided between two named charitable institutions which testator directs to be made in event of invalidity of prior bequest for an- other purpose; Anderson v. Messinger, 146 Fed. 938, where tes- tator declared if either of sons should die without lineal descendants, survivor should take, and if survivor had no descendants, half of all should go to testator's brother and a remainder to other brothers, sons acquired life estate in moiety. Syl. 8 (III, 32). When trust created by will. Approved in Speer v. Colbert, 200 U. S. 146, 50 L. 413, 26 Sup. Ct. 201, death or resignation of trustees named in will who are directed to pay and see to application of bequest to educational institution to be used for colonial research does not cause trust to fail; Gidley v. Lovenberg, 35 Tex. Civ. 210, 79 S. W. 835. uphold- ing devise of fund for establishing home for bettering condition and comforting the unfortunate widows of certain city. 3 Pet. 193-208, 7 L. 650, EX PARTE WATKINS. Syl. 2 (III, 38). Habeas corpus by federal court. Approved in Ex parte Moran, 144 Fed. 600, 601, upholding juris- diction of circuit court of appeals to issue habeas corpus to inquire into power of Oklahoma territorial court to imprison one convicted of capital crime. 3 Pet. 210-221 Notes on U. S. Reports. IIG Syl. 8 (m, 41). When judgment of imprisonment a nullity. Approved in Ex parte Stacey, 45 Or. 87, 75 Pae. 1061, following rule; In re Burkell, 2 Alaska, 110, when justice of peace added "at hard labor" to penalty, habeas coi-pus does not lie where hard labor not in fact being imposed as part of penalty; Ex parte Harlan, 1 Old. 50, 27 Pac. 921, habeas corpus does not lie to review judgment or sufficiency of indictment where court had jurisdiction. Syl. 9 (III, 43). Habeas corpus — Sufficiency of indictment. Approved in Hyde v. Shine, 199 U. S. 83, 50 L. 97, 25 Sup. Ct. 760, refusing on habeas corpus to determine sufficiency of indictment for conspiracy. Syl. 10 (III, 44). Judgment binding till reversed. Approved in Cobe v. Eicketts, 111 Mo. App. 113, 85 S. W. 133, where, after suit to dissolve loan association was brought in federal court, state court transferred similar suit brought previously and federal court rendered decree for sale of assets, decree not col- laterally attackable by one indebted to association on note in suit thereon by purchase of association's assets. Syl. 15 (III, 48). Collateral attack on court-martial 's judgment. Approved in Hamilton v. McClaughry, 136 Fed. 447, where return to habeas corpus alleges that petitioner is held under judgment of military coui't-martial, burden is on respondent to show condition of war existed. 3 Pet. 210-221, 7 L. 655, BOYCE v. GRUNDY. Syl. 2 (III, 49). Equity — Adequacy of law remedy. Approved in United Cigarette etc. Co. v. "Wright, 132 Fed. 197, following rule; Farwell v. Colonial Trust Co., 147 Fed. 482, up- holding bill against vendor and corporation to rescind sale of stock, recover purchase price and to relieve complainant from liability to corporation on account of the stock; Wilhite v. Skelton, 149 Fed. 72, upholding specific performance of agreement to convey fifth in- terest in leasehold; Trade Dollar etc. Min. Co. v. Fraser, 148 Fed. 593, fact that defendants claiming right to take water from stream under plans approved by state would be compelled to condemn right of way over prior appropriator 's lands does not prevent latter from enjoining works where construction would irreparably injure his prior rights; Castle Creek Water Co. v. City of Aspen, 146 Ped. 14, upholding specific performance where city has refused to per- form its contract to purchase waterworks at price based on pro- ductive worth to be determined by appraisers; General Elec. Co. V. Westinghouse Elec. & Mfg. Co., 144 Fed. 466, where contract for manufacture and sale of electric equipment provided that in case of violation, violator should pay fifty per cent of regular sale price as liquidated damages, injunction will not lie to prevent 117 Notes on U. S. Eeports, 3 Pet. 242-291 violation of contract; Brewster v. Lanyon Zinc Co., 140 Fed. 816, upholding equity jurisdiction on bill to give effect to forfeiture of oil lease and for cancellation of lease as cloud on title; Big Six etc. Co. V. Mitchell, 138 Fed. 2S6, upholding bill to cancel mining lease as cloud on title enjoins lessee from mining; Glucose Ref. Co. V. City of Chicago, 138 Fed. 211, upholding sufficiency of bill to enjoin enforcement of illegal smoke ordinance providing fine for each separate violation; Manning v. Berdane, 135 Fed. 160, up- holding federal equity jurisdiction of suit for cancellation of note obtained by fraud; Williams v. Neely, 134 Fed. 10, 69 L. R. A. 232, 07 C. C. A. 171, granting injunction to stay action at law on purchase money note until equitable defense of reduction for partial failure of consideration due to defect of title; Southern Pac. R. Co. V. United States, 133 Fed. 65G, 66 C. C. A. 581, upholding equity jurisdiction over suit by United States against railroad and its mortgagees to determine what portion of lands erroneously patented to company have been sold to bona fide purchasers, and for cancella- tion of patents to lands not so disposed of; Brown v. Arnold, 131 Fed. 727, upholding suit for specific performance of stipulation that action at law which has passed to judgment shall abide final deci- sion of another action; Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 141, 35 So. 51, upholding jurisdiction over suit by tenant in common against cotenant for accounting for timber taken during term of years, discovery and restraint of waste; Barnes v. Newton, 5 Okl. 435, 48 Pac. 193, successful contestant before Land Department may enjoin adversary from further interfering with possession and further occupancy; Ritterhoff v. Puget Sound Nat. Bank, 37 Wash. 80, 107 Am. St. Rep. 791, 79 Pac. 602, enjoining collection of note alleged to be forgery; Stauffer v. Cincinnati etc. R. R. Co., 33 Ind. App. 358, 70 N. E. 543, arguendo. Distinguished in dissenting opinion in Barnes v. Newton, 5 Okl. 446, 49 Pac. 1077, majority holding successful contestant before Land Department may enjoin adversary from further interfering with possession and further occupancy. 3 Pet. 242-268, 7 L. 666, SHANKS v. DUPONT. Syl. 10 (III, 59). Construction of treaties. Approved in In re Wyman, 191 Mass. 278, 77 N. E. 380, on death of Russian subject intestate, Russian vice-consul was entitled to administer estate to exclusion of public administrator. 3 Pet. 280-291, 7 L. 679, JACKSON v. LAMPHIRE. Syl. 1 (III, 62). Supreme court — Invalidity of law. Approved in Cantwell v. Missouri, 199 U. S. 602, 50 L. 329, 26 Sup. Gt. 749, following rule. 3 Pet. 307-458 Notes on U. S. Reports. 118 Syl. 3 (III, 63). Recording acts make void unrecorded deeds. Approved in Knights of Maccabees of the World v. Nitsch, 69 Neb. 375, 95 N. W. 627, upholding Comp. St. 1901, c. 43, § 112, requiring filing of proposed amendment to constitution or by-laws of fraternal beneficial societies with auditor of accounts as applied to certificate issued prior to law. Svl. 5 (III, 64). Legislature regulates limitations. Approved in Lamb v. Powder Riv. etc. Co., 132 Fed. 438, 67 L. R. A. 558, 65 C. C. A. 570, holding void Colorado act of 1899, limiting time for action on judgment as applied to action on sister state judgment rendered prior to passage of act. 3 Pet. 307-319, 7 L. 688, CANTER v. AMERICAN INS. CO. Syl. 5 (III, 70). No appeal from costs decree. Distinguished in Western Coal etc. Co. v. Petty, 132 Fed. 606, in action at law in circuit court judgment rendered on dismissal denying prevailing party costs is reviewable on writ of error. 3 Pet. 340-390, 7 L. 701, FINLAY v. KING. Syl. 1 (III, 72). Conditions precedent and subsequent distin- guished. Approved in Ranncls v. Rowe, 145 Fed. 300, condition in deed of Innd to railroad, that if road not built within three years lands to rrvert, was condition subsequent. See 102 Am. St. Rep. 366, 367, note. Syl. 4 (III, 74). Wills construed according to intent. Approved in Blinn v. Gillett, 208 111. 485, 100 Am. St. Rep. 234, 70 N. E. 707, construing bequest of profits of bank stock, with cer- tain conditions in case of liquidation of bank; Missouri etc. Sani- tarium y. McCune, 112 Mo. App. 338, 87 S. W. 85, where testatrix made several specific bequests in proper form, clause of will di- recting sale of stock to highest bidder and division of proceeds among specified legatees is bequest of proceeds and not of stock. 3 Pet. 398-410, 7 L. 719, FOWLE v. COMMON COUNCIL OF ALEXANDRIA. Syl. 4 (III, 76). City not liable for nonfeasance. Approved in Fifield v. Common Council of Phoenix, 4 Ariz. 287, 36 Pac. 917, 24 L. R. A. 430, city is not liable for injuries caused by discharge of fireworks because city authorities suspended for day ordinance prohibiting discharge of fireworks. 3 Pet. 433-458, 7 L. 732, PARSONS v. BEDFORD. Syl. 4 (III, 83). Common law distinguished from equity. Approved in In re E. T. Kenney Co., 136 Fed. 454, where cred- itors of bankrupt before bankruptcy assigned claims vo committee 119 Notes on U. S. Reports. 4 Pet. 1-101 in trust to purchase bankrupt's property and sell it for benefit of assignors, latter could not prove equitable interest as claims against estate though state statute abolished distinction bewecn law and equity. Syl. 5 (III, 84). Jury not required in equity. Approved in United States v. Luce, 141 Fed. 420, applying rule in suit to abate nuisance. Syl. 6 (III, 84). Jury — Suit at common law defined. Approved in Seliner v. McKay, 2 Alaska, 566, in action to quiet title where answer shows defendant was rightfully in possession and was ousted by plaintiff and wrongfully kept out of possession, defendant is entitled to jury trial; Chessman v. Hale, 31 Mont. 589, 79 Pac. 257, plaintiff in action for damages for maintenance of nui- sance is entitled to jury though he also seeks injunction; Bradford V. Territory, 1 Old. 370, 34 Pac. 67, proceeding b/ information in nature of quo warranto requires jury; dissenting opinion in Dorr V. United States, 195 U. S. 157, 49 L. 136, 24 Sup. Ct. 808, majority holding under Philippine temporary civil government right of trial by jury not included. Syl. 8 (in, 85-). Seventh amendment and judiciary act. Approved in Illinois Cent. Ry. Co. v. Davies, 146 Fed. 248, as- signment that verdict awarded excessive damages through preju- dice and passion is not reviewable on appeal. 3 Pet. 459, 460, 7 L. 741, FARRAR v. UNITED STATES. Syl. 3 (III, 88). Appearance cures defective service of process. Approved in dissenting opinion in Fisher v. Crowley, 57 W. Va. 329, 50 S. E. 429, majority holding defect in summons not waived by pleading to merits after overruling of motion to quash to which exception taken. IV PETERS. 4 Pet. 1101, 7 L. 761, CARVER v. JACKSON. Syl. 2 (III, 92). Appeal — Instructions on facts not considered. Approved in Pittsburgh Ry. Co. v. Bloomer, 146 Fed. 721, apply- ing rule in action for damages against street railway for negli- gence. Syl. 4 (III, 93). Recital of lease in deed binds parties. Approved in Davis v. Movies, 76 Vt. 33, 56 Atl. 176, petitions to legislature for grants of lauds reciting lands confiscated from peti- 4 Pet. 102-183 Notes on U. S. Ecports. 120 tioner's father, and private acts granting lands and reciting con- fiscation, not evidence of confiscation, so as to show title in state at time of grant as against trespasser; Eonk v. Higginbotham, 54 W. Va. 143, 46 S. E. 130, applying rule in ejectment. Syl. 6 (m, 98). State claiming under deed. Approved in Clark v. Sayers, 55 W. Va. 526, 47 S. E. 318, where one conveys land with general warranty which at time he does not own, or title to which is defective, and afterward acquires good title, acquisition inures to grantee. 4 Pet. 102-107, 7 L. 796, EX PARTE BRADSTREET v. THOMAS. Syl. 1 (III, 98). Mandamus to compel signing bill of exceptions. Approved in Herren v. Merrilecs, 7 Okl. 266, 54 Pac. 469, after bill of exceptions signed copy of motion for new trial certified to by clerk cannot be. annexed. 4 Pet. 108-110, 7 L. 798, EX PARTE TILLINGHAST. Syl. 1 (III, 101). Disbarment for contempt. Approved in Bessette v. W. B. Conkey Co., 194 U. S. 337, 48 L. 1005, 24 Sup. Ct. 665, order of circuit court finding one not a party to suit guilty of contempt in violating restraining order, is review- able on writ of error; State v. Mosher, 128 Iowa, 87, 103 N. "W. 107, upholding jurisdiction of district court to revoke license of attorney. 4 Pet. 111-123, 7 L. 799, BOYCE v. EDWARDS. Syl. 1 (III, 101). Drafts — Promise to accept. Approved in Bank of Seneca v. First Nat. Bank, 105 Mo. App. 726, 78 S. W. 1093, bank having no notice of letter of credit can- not have check v^-hich it cashed applied in extinguishment of amount named in letter. 4 Pet. 124-138, 7 L. 804, UNITED STATES v. MORRISON. Syl. 2 (III, 104). Following state statutory construction. Approved in dissenting opinion in James v. Gray, 131 Fed. 414, 65 C. C. A. 385, majority holding loan made by wife to husband from her separate projierty is provable against his estate in bankruptcy, irrespective of state law respecting its enforceability. 4 Pet. 172-t83, 7 L. 821, WILCOX v. PLUMMER. Syl. 1 (III, 110). When limitations for negligence runs. Approved in O'Connor v. Aetna Life Ins. Co., 67 Neb. 126, 93 N. W. 138, where one borrowed money to pay off mortgage and gave mortgage on same premises as security, and lender paid off mortgage without getting surrender and assignee' thereof foreclosed, borrower's suit against lender for damages barred in five years after 121 Notes on U. S. Reports. 4 Pet. 184-290 payment; Mast v. Sapp, 140 N. C. 539, 540, 541, 111 Am. St. Eep. 868, 53 S. E. 352, 5 L. R. A. (N. S.) 379, determining survival of action for injuries to house caused by breaking of reservoir in which accident owner killed. 4 Pet. 184-189, 7 L. 825, BARTLE v. COLEMAN. Syl. 1 (III, 112). No remedy on illegal contract. Approved in dissenting opinion in Monahan v. Monahan, 77 Vt. 152, 59 Atl. 174, 70 L. R. A. 935, majority impressing securities with trust where only issue raised was as to title, though complainant placed securities in defendant's name to avoid taxation. 4 Pet. 190-204, 7 L. 828, CALDWELL v. TAGGART. Syl. 1 (III, 114). Necessary parties must be before court. Approved in Lynch v. United States, 13 Okl. 158, 73 Pac. 1101, applying rule in suit to cancel townsite patent. 4 Pet. 205-231, 7 L. 833, LLOYD v. SCOTT. Syl. 1 (III, 115). Usury — Necessity for intent. Approved in Lusk v. Smith, 71 Kan. 555, 81 Pac. 175, where son received sum from mother stating he could get her ten per cent interest, and he deposited sum in bank as agent and gave his memo- randum-book in which he credited her with sum, adding "to be loaned out," usurious agreement not presumed from payment of interest by son. Syl. 6 (III, 117). Usurious contracts void as to strangers. Distinguished in In re Worth, 130 Fed. 932, under Iowa Code, 1897, § 3041, creditors of bankrupt cannot set up defense of usury against claim of another creditor. 4 Pet. 232-286, 7 L. 842, VAN NESS v. CITY OF WASHINGTON AND THE UNITED STATES. Syl. 2 (III, 118). Preliminary agreement urged in indenture. Approved in Arion Knitting Mills v. United States etc. Guaranty Co., 137 N. C. 570, 50 S. E. 306, 70 L. R. A. 167, applying rule in construing fidelity bond. 4 Pet. 287-290, 7 L. 861, LA GRANDE v. CHOUTEAU. Syl. 3 (III, 121). Specific performance on paying for surplus. Approved in King v. Raab, 123 Iowa, 638, 99 N. W. 308, where five year lease of town lot gave option to purchase for specified sum during term, and city caused street to be paved at cost of abutting owners, lessee must assume cost of pavement on asking specific performance. 4 Pet. 291-465 Notes on U. S, Keports. 122 (III, 119.) Miscellaneous. Distinguished in South Bound B. E. V. Burton, 67 S. C. 520, 46 S, E. 341, fee of streets in Columbia ia in «tate. 4 Pet. 291-310, 7 L. 862, CONRAD v. NICOLL. Syl. 1 (III, 119). Burden of proof of fraud. Approved in Kcssler v. Ensley, 141 Fed. 137, applying rule to pur- chase of pi'operty of corporation by director. 4 Pet. 331-348, 7 L. 876, GALT v. GALLOWAY. Syl. 1 (III, 122). Equity does not relieve against trespassers. Approved in dissenting opinion in Barnes v. Newton, 5 Okl. 460, 49 Pac. 1081, majority holding successful contestant before Land Department may enjoin adversary from further interfering with pos- session and further occupancy. 4 Pet. 349-365, 7 L. 882, EONKENDORFF v. TAYLOR. Syl. 5 (III, 126). Publication once a week. Approved in Forsman v. Bright, 8 Idaho, 472, 69 Pac. 475, publi- cation of summons in weekly paper five consecutive weeks, first issue on July 18th and last on August 15th, is publication for one month as required by statute; Derby v. Dancey, 112 La. 894, 36 So. 796, summons and notice, by which abandonment of wife by husband is required to appear by Civ. Code, art. 145, must be given each calendar month. 4 Pet. 393-109, 7 L. 897, SPRATT v. SPRATT. Syl. 1 (III, 128). Conclusion of naturalization proceedings. Approved in Dolan v. United States, 133 Fed. 449, certified copy of record of court showing admission of alien to citizenship is "certificate of citizenship" within Rev. St., §§ 5425, 5427, making it an offense to use or aid another in using false certificate of citizen- ship; Tinn v. United States Dist. Atty., 148 Cal. 775, 84 Pac. 152, order admitting alien to citizenship cannot be set aside on motion after lapse of six months; State v. Weber, 96 Minn. 428, 105 N. W. 492, record of common pleas ordering certificate of naturalization to be issued constitutes a judgment; State v. Chittenden, 127 Wis. 505, 107 N. W. 512, dental college entitled to certiorari to deter- mine its status among reputable colleges. 4 Pet. 410-465, 7 L. 903, CRAIG v. STATE OF MISSOURL Syl. 2 (III, 130). Exceptions on trial to court. Approved in Streeler v. Sanitary Dist. of Chicago, 133 Fed. 131, 66 C. C. A. 190, where case is trial by court, admission or rejection of evidence not necessarily ground for reversal. Syl. 9 (III, 133). Promise in consideration of illegal act is void. Approved in Monahan v. Monahan, 77 Vt. 143, 59 Atl. 172, 70 L. E. A. 935, impressing securities with trust where only issue was 123 Notes on U. S. Reports. 4 Pet. 46'3 565 as to title, tliough complainant placed securities in defendant's name to avoid taxation. 4 Pet. 466-479, 7 L. 922, HOLLINGSWOETH v. BARBOUR. Syl. 2 (III, 135). Publication against unknown heirs. Approved in Clapp v. Houg, 12 N. D. 606, 607, 102 Am. St. Rep. 589, 98 N. W. 712, 65 L. R. A. 757, holding void Codes 1899, § 6325, subd. 2, providing for appointment of administrator where death of person not satisfactorily proven, as applied to property of live per- son; Flournoy v. Bullock, 11 N. M. 101, 66 Pac. 549, 55 L. E. A. 745, arguendo. 4 Pet. 480510, 7 L. 927, SOCIETY FOR THE PROPAGATION ETC. V. TOWN OF PAWLET. Syl. 1 (III, 137). Corporations — General issue — Capacity to sue. Approved in Leader Printing Co. v. Lowry, 9 Okl. 106, 59 Pac. 247, plaintiff corporation need not aver that it is corporation. 4 Pet. 514-565, 7 L. 939, PROVIDENCE BANK v. BILLINGS. Syl. 2 (III, 143). Tax exemption not presumed. Approved in New York v. State Board of Tax Commrs., 199 IT. S. 36, 50 L. 74, 25 Sup. Ct. 715, upholding special franchise imposed by N. Y. Laws 1899, c. 712, as not impairing obligation of con- tracts by which right to construct and maintain street railways was granted in consideration of payment of certain amount; Kersey v. Terre Haute, 161 Ind. 474, 68 N. E. 1029, upholding license ordi- nance taxing vehicles using streets, but omitting street-cars, auto- mobiles and vehicles of nonresidents; Lake Drummond Canal Co. v. Commonwealth, 103 Va. 345, 49 S. E. 508, on purchase of prop- erty and franchises of another corporation on foreclosure of trust deed, corporation cannot claim tax immunity granted to prior cor- poration. See 105 Am. St. Rep. 698, note. Syl. 3 (III, 148). Object of incorporation. Approved in dissenting opinion in Hale v. Henkel, 201 IT. S. 85, 50 L. 670, 26 Sup. Ct. 370, majority holding protection against unreasonable searches cannot be invoked to justify refusal of officer of corporation to produce its books and papers in obedience to subpoena duces tecum; Fulkerson v. Taylor, 102 Va. 321, 46 S. E. 311, railroad acquiring imperfect title to land is governed by same prin- ciples as individuals in claiming compensation for value of improve- ments. Syl. 4 (III, 149). Taxing power operates on all. Approved in People v. Ronner, 185 N. Y. 291, 77 N. E. 1063, up- holding Laws 1905, p. 2059, c. 729, relating to taxation of real estate mortgages. 5 Pet. 1-114 Notes on U. S. Eeporta. 124 Syl. 5 (in, 149). Seeuritv against unwise legislation. Approved in Michigan etc. E. E. Co. v. Powers, 201 U. S. 296, 50 L. 762, 26 Sup. Ct. 466, affirming Michigan E. E. Tax Cases, 138 Fed. 234, and upholding Mich. Pub. Acts, 1901, act No. 173, for taxation of railroad property at average rate of taxation imposed on other property; Eddy v. People, 218 111. 616, 75 N. E. 1072, under Laws 1879, relating to police pensions, board of trustees in passing on application for pension acts in quasi-judicial capacity and its finding is binding; Pryor v. Bryan, 11 Okl. 363, 66 Pac. 350, up- holding act exempting from taxation property on Indian reservation attached to county for tax purposes, except for territorial and court fundsL V PETERS. 5 Pet. 1-80, 8 L. 25, CHEEOKEE NATION v. GEOEGIA. Syl. 1 (III, 153). Status of Indian tribe. Approved in Buster v. Wright, 135* Fed. 950, 68 C. C. A. 505, upholding power of deportation from Creek nation of person not paying permit tax; Labadie v. United States, 6 Okl. 413, 51 Pac. 670, act of 1888, punishing person cutting standing timber on Indian reservation, applies to tribal Indian cutting timber for speculative purposes. Syl. 5 (III, 155). Indian occupancy like fee simple. Approved in Winters v. United States, 143 Fed. 748, portion of waters of Milk river having been reserved by treaty for Indians cultivating reservation, grantees of lands outside reservation could not acquire exclusive right to use all waters of river for irrigation under desert land act. 5 Pet. 99-114, 8 L. 60, UNION BANK OP GEOEGETOWN v. GEAEY. Syl. 6 (III, 159). Eelinquishment of right to defense is considera- tion. Approved in Moore v. First Nat. Bank of Florence, 139 Ala. 609, 36 So. 781, forbearance by debtor to interpose defense to action by cred- itor is consideration for agreement by creditor to pay debtor's debt to third person; Duck v. Antle, 5 Okl. 156, 47 Pac. 1057, answer in suit on note that it was given as consideration for dismissal of con- test of homestead entry, which was prosecuted only to extort money, states good defense. 125 Notes on U. S. Reports. 5 Pet. 115-247 5 Pet. 115-130, 8 L. 66, UNITED STATES v. LINGEY. Syl. 2 (III, 160). United States may contract. Approved in Smith v. United States, 5 Ariz. 64, 45 Pac. 344, where bond of receiver of public moneys of land district was increased by direction of President over amount required by statute, it was not void; Dudley v. Eice, 119 Wis. 100, 95 N. W, 937, where bond of guardian of lunatic was conditioned to pay over amount found due on settlement, it was enforceable as voluntary bond, though court had no jurisdiction of guardianship proceedings. Syl. 4 (III, 161). Bond exacted for public officer. Approved in Commissioners of Logan Co. v. Harvey, 6 Okl. 632, 52 Pac. 403, holding void bond exacted of official whore statute did not require bond as condition precedent to discharge of duties. Distinguished in United States Fidelity etc. Co. v. United States, 150 Fed. 553, 554, bond required from Indian agent containing pro- visions not required by law not void when conditions not in viola- tion of law. 5 Pet. 151-159, 8 L. 79, HENDERSON v. GRIFFIN. Syl. 1 (III, 164). Following state statutory construction. Distinguished in Davis v. Commonv»'calth Land etc. Co., 141 Fed. 716, where, pending suits to quiet title in federal court which in- volved question of boundary, replevin to recover logs begun in state court and issues framed to cover boundaries, and owners not parties thereto, state decision not binding on federal court. 5 Pet. 190 223, 8 L. 92, EX PARTE CRANE. (Ill, 166.) Miscellaneous. Cited in Cassett v. Mitchell Coal & Coke Co., 150 Fed. 43, as to discretionary right to permit amendments or grant new trials. 5 Pet. 224-232, 8 L. 105, YEATON v. LYNN. (Ill, 168.) Miscellaneous. Cited in Leahy v. Haworth, 141 Fed. 854, foreign executor may sue in federal court to foreclose mortgage belonging to testator's estate, and subsequent taking out of ancillary letters in local jurisdiction relates back to filing of bill. 5 Pet. 233-247, 8 L. 108, PATTERSON v. WIXN. Syl. 1 (III, 169). "What constitutes our common law. Approved in In re Burkell, 2 Alaska, 118, stealing of dog is larceny; Valentine v. Roberts, 1 Alaska, 541, issuance and service of order of arrest in civil action on Sunday is void; Johnson v. Union Pac. Coal Co., 28 Utah, 58, 76 Pac. 1092, 67 L. R. A. 506, construing Rev. St. Wyo. 1899, § 2C95, adopting common law. 5 Pet. 264-303 Notes on TJ. S. Eeporta. 126 5 Pet. 264-283, 8 L. 120, CATHCAET v. KOBINSON. Syl. 2 (III, 172). Specific performance — Fraud — Unreasonableness. Approved in Marks v. Gates, 2 Alaska, 527, refusing to specifically enforce grubstake contract as vague, uncertain, unjust and perpetual; Schneider v. Schneider, 125 Iowa, 16, 98 N. W, 164, refusing specific performance of contract to sell realty between parties in fiduciary relation where contract obtained by fraud. Syl. 4 (HI, 172). Unfairness giving right to equitable relief. Approved in Ferguson v. Blackwell, 8 Okl. 498, 58 Pac. 650, follow- ing rule. Syl. 6 (III, 173). Equity — Decree as to legal matters. Approved in Marthinson v. King, 150 Fed. 54, denying specific per- formance of option to purchase cross-tie outfit where seller sold di- rect to buyer's vendee; Clinton v. Shngart, 126 Iowa, 188, 101 N. W. 789, where, under contract for conveyance of land in futuro, vendor was to pay taxes until conveyance, and he failed so to do and vendee tendered purchase price less taxes on day contract matured, vendee entitled to specific performance; Lowry v. Mitchell, 14 Okl, 248, 78 Pac. 381, defendant in forcible entry and detainer may plead former judgment in suit to enjoin defendant from interfering with plaintiff's possession, which allowed defendant possession pending further hearing; dissenting opinion in Hawley v. Griffin, 121 Iowa, 703, 97 N. W. 90, majority holding where heirs of deceased owner on securing vacation of decree in suit to quiet title by grantees in tax deed against owner, who was insane and did not appear, cannot defend suit by setting up right of redemption conferred by Code, §§ 892, 893. Syl. 7 (III, 173). Construction of adopted statutes. Approved in Johnson v. Union Pac. Coal Co., 28 Utah, 57, 76 Pac. 1092, 67 L. E. A. 506, construing Eev. St. Wyo. 1899, § 2695, adopting common law. 5 Pet. 284-291, 8 L. 127, NEW JERSEY v. NEW YORK. Syl. 2 (III, 175). Equity — Service of subpoena. Approved in dissenting opinion in Henry v. State, 87 Miss. 95, 39 So. 884, majority holding under constitution governor cannot sue in name of state. 5 Pet. 292-303, 8 L. 130, SMITH v. UNITED STATES. Syl. 9 (III, 177). Treasury transcript as evidence. Approved in United States v. Pierson, 145 Fed. 817, in action on bond of Indian agent, introduction of duly certified transcript of books and proceedings, of treasury department established prima facie case for government. 127 Notes on U. S. Reports. 5 Pet. 319-397 5 Pet. 319-357, 8 L. 140, CLARK v. COURTNEY. Syl. 1 (III, 178). Proof of handwriting of dead witness. Approved in Keely v. Moore, 196 U. S. 41, 49 L. 379, 25 Sup. Ct. 169, applying rule to proof of execution of will. Syl. 5 (III, 179). Adverse possession — Owner's possession of part. Approved in United States Min. Co. v. Lawson, 134 Fed. 772, 67 C. C. A. 587, bill to quiet title alleging possession and ownership of mining claim in complainant is not insufficient, because it also shows that defendant has through underground workings wrongfully entered and removed ore beneath surface of claim. Syl. 7 (III, 179). Possession under deed — Limits. Approved in Haggart v. Ranney, 73 Ark. 353, 84 S. W. 706, following rule. 5 Pet. 358-372, 8 L. 154, TAYLOE v. THOMSON. Syl. 8 (III, 182). Statutes regulating judgment liens — Rules of property. Approved in dissenting opinion in "Woodruff v. Wallace, 3 Okl. 381, 41 Pac. 366, majority holding district court may, by injunction, give exclusive possession to successful contestant before land office. 5 Pet. 373-389, 8 L. 159, FARRAR v. UNITED STATES. Syl. 1 (III, 182). Surety not liable beyond penalty. Approved in Board of Education v. National Surety Co., 183 Mo. 184, 82 S. W. 75, in action on bond to secure performance of building contract, judgment for full amount of bond with interest is erroneous. Distinguished in Greer v. McNeal, 11 Okl. 541, 69 Pac. 898, sureties on administrator's bond are liable for all moneys shown on final set- tlement to have come into his hands, Syl. 4 (III, 183). Surety — Liability for past misconduct. Approved in United States etc. Co. v. Fultz, 76 Ark. 415, 89 S. W. 95, where, as condition for doing business, insurance company must give bond for prompt payment of claims, and bond dated March 1, 1900, for one year was not approved until March 16th, it covered fire occurring March 2, 1900; Lake Co. v. Neilon, 4 Or. 17, 74 Pac. 213, applying rule to sureties on tax collector's bond. 5 Pet. 390-397, 8 L. 166, SHANKLAND v. MAYOR ETC. OF WASH- INGTON. Syl. 4 (III, 186). Parol evidence to vary writing. Approved in Blue Mt. Iron etc. Co. v. Portner, 131 Fed. 60, 65 C. C. A. 295, where order of court appointing receiver for corporation was in writing, parol evidence of judge who made order was inad- missible to show grounds thereof; Gill v. General Electric Co., 129 5 Pet. 398-494 Notes on U. S. Eeports. 128 Fed. 351, G4 C. C. A. 99, where series of writings intended to em- body entire contract from wliicli it appeared that one of defendants was joint contractor, parol evidence inadmissible to vary his con- nection therewith. 5 Pet. 398-401, 8 L. 168, HINDS v. VATTIER. Syl. 2 (III, 186). Judicial notice of state laws. See 113 Am. St. Eep. 873, note. 5 Pet. 402-448, 8 L. 170, BRADSTREET v. HUNTINGTON. Syl. 1 (III, 187). Disseisin — Deed by one without title. See 109 Am. St. Rep. 612, note. 5 Pet. 457-469, 8 L. 190", HAWKINS v. BARNEY. Syl. 1 (III, 19.0). Limitations — Reasonableness of time. Approved in Lamb v. Powder Riv. etc. Co., 132 Fed. 438, 67 L. R. A. 558, 65 C. C. A. 570, Colorado act of 1899, prescribing limitations on actions on foreign judgments, is void as applied to action on foreign judgment based on contract rendered prior to passage of action. Syl. 6 (III, 192). Burden of proof — Exception in deed. Approved in Davis v. Commonwealth Land etc. Co., 141 Fed. 733, applying rule in suit to quiet title. 5 Pet. 470-478, 8 L. 195, LEWIS v. MARSHALL. Syl. 6 (III, 193). Bible entries to prove death. Approved in Collins v. German-American etc. Assn., 112 Mo. App. 219, 220, 86 S. W. 894, admitting Irish church baptismal record as evidence of pedigree and of entries therein though party making en- tries is dead; Murray v. Supreme Hive, L. O. T. M., 112 Tenn. 680, 80 S. W. 831, reports of boards of health and census reports are com- petent evidence on questions of age and pedigree on hearing of com- plaint for expulsion from benefit society. 5 Pet. 485-494, 8 L. 200, PEYTON v. SMITH. Syl. 3 (III, 194). Tenant cannot contest landlord's possession. Approved in Stover v. Davis, 57 W. Va. 204, 49 S. E. 1026, following rule. Syl. 6 (in, 195). Forcible entry judgment for defendant. See 112 Am. St. Rep. 40, note. Syl. 7 (III, 195). Possession of tenant is landlord's. Approved in Hagar v. Wikoff, 2 Okl. 585, 39 Pac. 282, one going into possession of town lot on public land as tenant of one who has erected building thereon cannot assert claim adverse to landlord un- til vacation of premises. 129 Notes on U. S. Reports. 5 Pet. 495-717 5 Pet. 495 504, 8 L. 204, FOWLES v. LAWRSON. Syl. 1 (III, 196). Equity jurisdiction over accounts. Approved in Hosier Constr. Co. v. National Bank of Commerce, 35 Ind, App. 276, 73 N. E. 1008, action to recover for goods sold is at law and triable by jury, though complaint alleges defendant is entitled to certain credits, which sum cannot be stated because un- known to plaintiff, and concludes with prayer for accounting. Syl. 2 (III, 197). Objection to jurisdiction raised sua sponte. Approved in Allen v. Myers, 1 Alaska, 117, after applicant for patent has initiated proceedings in land office under Rev. St., §§ 2325, 232G, independent suit to quiet title is not maintainable. 5 Pet. 518-528, 8 L. 212, SMITH v. UNION BANK OF GEORGE- TOWN. Syl. 1 (III, 198). Law governing distribution of estates. Approved in Lewis v. Rutherford, 71 Ark. 220, 72 S. W. 374, where on death of nonresident leaving property here, administrators ap- pointed in both states, probate court here could not order ancillary administrator to pay to primary administrator assets so that all creditors would receive equal percentage of debts. Syl. 2 (III, 198). Goods within state subject to its laws. Approved in Manley v. Mayer, 68 Kan. 383, 75 Pac. 552, upholding Administrator's Act, § 203, relative to enforcing of contracts of non- resident decedents who owned realty in Kansas, by attachment in suit against nonresident executor; Cooper v. Philadelphia Worsted Co. (Lees v. Harding etc. Co.), 68 N. J. Eq. 625, 60 Atl. 353, contract with reference to title to machinery situated in another state made there between resident thereof and New Jersey corporation, and is to be there performed, is governed by law of that state. 5 Pet. 529-579, 8 L. 216, WINSHIP v. BANK OP UNITED STATES. Syl. 2 (III, 199). Partner's authority to "Tjorrow. Approved in Union Nat. Bank v. Neill, 149 Fed. 716, upholding liability of firm to bona fide holder on accommodation note signed by member in firm name. 5 Pet. 675-717, 8 L. 268, SHEPPARD v. TAYLOR. Syl. 1 (III, 209). Admiralty — Lien on proceeds of vessel. Approved in The Conveyor, 147 Fed. 591, 592, seamen having liens for wages on vessel which was sunk may enforce same against in- surance money paid on account of loss, subject only to claims for salvage, where proceeds of sale of vessel are insufficient to pay same; Bank of British N. A. v. Freights etc. of Hutton, 137 Fed. 538, 70 C. C. A. 118, where bank had maritime lien on freights of certain 9 6 Pet. 8-40 Notes on U. S. Eeports. 130 vessels for advances, it was entitled to enforce same in admiralty in rem, regardless of fact that it also had lien enforceable in equity, 5 Pet. 718-723, 8 L. 285, POTTER v. GAEDNEB. (in, 212.) Miscellaneous. Cited in Johnson v. Georgia Loan etc. Co., 141 Fed. 597, bona fide purchaser must allege and prove want of notice and actual payment of purchase price independently of recitals in deed. VI PETERS. 6 Pet. 8-19, 8 L. 299, UNITED STATES BANK v. BANK OF WASH- INGTON. Syl. 2 (III, 213). Eestoration on reversal of judgment. Approved in The Eliza Lines, 132 Fed. 244, 65 C. C. A. 538, one who acted as agent for party in obtaining erroneous judgment directing sale of cargo, but who was not party to record and had no personal interest in suit, cannot be held in damages as tort-feasor on account of sale; Chambliss v. Hass, 125 Iowa, 491, 101 N. W. 155, 68 L. E. A. 126, where defendant appealed and judgment affirmed, and paid on execution, it is no ground for denial of new trial for newly discovered evidence. Syl. 5 (III, 215). Eeversal after execution. Approved in Embry v. Galbreath, 110 Tenn. 301, 75 S. W. 1017, agent employed by grantor under trust deed to collect rents is not affected by notice that purchaser at foreclosure claimed property and would hold agent for rents collected; North Chicago St. E. Co. v. North Chicago Union Tr. Co., 150 Fed. 628, arguendo. Syl. 6 (III, 216). Effect of reversal on rights. Approved in Harrigan v. Gilchrist, 121 Wis. 441, 99 N. W. 1009, applying rule where amount allowed receiver for attorney's fee was re- duced. 6 Pet. 29-40, 8 L. 308, UNITED STATES v. BANK OF NOETH CAEOLINA. Syl. 3 (III, 217). "Due" means owing. Approved in Pope v. Matthews, 125 Ga. 347, 54 S. E. 154, construing act of 1905, requiring all taxes due state and county by persons re- siding in or on property in new county to be paid to collector of county from which territory taken. Syl. 5 (III, 218). Statutory construction — Long acquiescence. Approved in Pitts v. Logan County, 3 Okl. 740, 41 Pac. 591, holding void territorial act regulating accounting of fees of district court clerks. 131 Notes on U. S. Reports. 6 Pet. 51-85 6 Pet. 51-GO, 8 L. 316, UNITED STATES BANK v. DUNN. Syl. 2 (III, 221). Parol to vary writing. Approved in Earle v, Enos, 130 Fed. 470, parol agreement hj bank, made at time of delivery of accommodation note and its discount by bank, that it would not look to maker for payment, cannot be shown to defeat action on note. 6 Pot. 61-67, 8 L. 320, MILLER v. McTNTYRE. • ' Syl. 2 (III, 225). Limitations — Amendment adding new parties. Approved in United States v. Martinez, 195 U. S. 473, 49 L. 283, 25 Sup. Ct. 80, petition in action under Indian depredation act in which wrong alleged to have been done by particular tribe cannot be amended after expiration of three year limitation prescribed by act, by stating different tribe as wrongdoer. 6 Pet. 68-85, 8 L. 322, SMITH v. BELL. Syl. 1 (III, 227). Testator's intention prevails. Approved in Anderson v. Messinger, 146 Fed. 938, construing will which declared that if either of testator's sons died without issue, sur- vivor should take his estate, and if survivor died without lineal de- scendants, then estate divided among brother and sisters of testator. Syl. 2 (III, 229). Wills — Construction of ambiguous expressions. Approved in Burnes v. Burnes, 137 Fed. 792, 70 C. C. A. 357, where will devised property to brothers and expressed desire that they should adopt testator's children as his heirs, so that they would share equally with their children, no trust in favor of children created. Syl. 4 (III, 230). Wills— Life estate. Approved in Coats v. Harris, 9 Idaho, 466, 75 Pae. 245, will giving to wife life estate and son all property after her death empowers son to convey to mother and her heirs and assigns, property to become his after her death ; dissenting opinion in Meyer v. Weiler, 121 Iowa, 62, 65, 95 N. W. 258, 259, majority holding bequest to wife of all property re- citing intention to make her sole residuary legatee and owner, but con- ditioned that part remaining on her death should go to their heirs, created fee in wife and conditional limitation was void. Distinguished in Widows' Home v. Lippardt, 70 Ohio St. 281, 287, 288, 289, 290, 71 N. E. 772, 773, 774, will giving wife all estate, and providing that after her death if there is anything left it shall be distributed in certain way, gives widow power to convey fee. Syl. 6 (III, 232). Wills— Primary intent controls. Approved in Wheeler v. Long, 128 Iowa, 646, 105 N. W. 162, where will gave daughter realty but subsequent paragraphs provided that if she died before reaching maturity property to be divided between others, but if she married before maturity she should come into full control, devise not reduced to life estate. 6 Pet. 95-217 Notes on U. S. Keports. 132 6 Pet. 95-101, 8 L. 332, PEIESOLL v. ELLIOTT. Syl. 2 (III, 235). Cancellation of deed void on face. Distinguished in Shewalter v. Lexington, 143 Fed. 166, where suit was brought in federal court to quiet title as against street improvement cer- tificates amounting to less than $2,000, amount of certificates fixed jurisdictional amount. 6 PSt. 124-140, 8 L. 342, SICAED v. DAVIS. Syl. 1 (III, 237). Object of acknowledgment of deeds. Approved in Whalon v. North Platte Canal etc. Co., 11 Wyo. 348, 71 Pac. 1000, unacknowledged and unrecorded transfers of permits to construct irrigation ditch pass title as between parties. Syl, 6 (III, 239). Limitations — Amendment adding new cause. Approved in Patillo v. Allen West Com. Co., 131 Fed. 681, 65 C. C. A. 508, where complaint stated facts from which there is presumption of promise to pay balance of account stated, and demanded judgment therefor, amendment adding averment of promise to pay balance pre- sents no new cause of action; Covington v. Berry, 76 Ark. 464, 88 S. W. 1006, where second action of ejectment instituted after nonsuit in first is based on title acquired by plaintiff subsequent to commencement of first action, limitations do not cease to run against second action till commencement thereof. C Pet. 141, 142, 8 L. 348, UNITED STATES v. PAUL. Syl. 1 (III, 239). Federal crimes— State laws. Approved in Hollister v. United States, 145 Fed. 778, 779, uphold- ing 32 Stat. 793, adopting punishment provided for like offenses in South Dakota, for offenses on Indian reservation. 6 Pet. 143-150, 8 L. 349, OLIVEE v. ALEXANDEE. Syl. 4 (III, 240). Admiralty appeal — Joinder of joint libelants. Approved in The Joseph B. Thomas, 148 Fed. 767, following rule; Feely v. Bryan, 55 W. Va. 592, 47 S. E. 310, where several creditors with separate demands attack mortgage as preference, and decree adjudges property to be for benefit of all insolvent's creditors, sums due complainants cannot be added to give appellate jurisdiction. 6 Pet. 172-204, 8 L. 359, COX v. UNITED STATES. Syl. 1 (in, 243). Appeal by principal and surety. Approved in Grunberg v. United States, 145 Fed. 84, arguendo. 6 Pet. 216, 217, 8 L. 375, EX PAETE EOBEETS. Syl. 1 (III, 247). Mandamus to set aside default. See 98 Am. St. Eep. 901, note. 133 Notes on U. S. Eeports. 6 Pet. 218-347 6 Pet. 218-249, 9 L. 376, GRANT v. EAYMOND. Syl. 3 (III, 247). Correction of defective patent. Approved in Thomson-Houston Electric Co. v. Black River Tr. Co., 135 Fed. 766, 68 C. C. A. 461, though changes in description in speci- fication of reissued patent are not material, and claims are identical ■with some of those of original patent, such facts do not impeach their validity. Syl. 4 (III, 248). Construction of patent laws. Approved in Cortelyou v. Chas. Eneu Johnson & Co., 138 Fed. 114, owner of patent for rotary ncostyle, used for stencil duplication, may sell machines under restriction that they be used only with paper and ink made by owner; disscTiting opinion in Continental Paper Bag Co. V. Eastern Paper Bag Co., 150 Fed. 747, majority holding void Liddell patent No. 558,969, for paper-bag machine; Bobbs-Merril Co. v. Straus, 139 Fed. 169, arguendo. 6 Pet. 291-301, 8 L. 402, GREEN v. NEAL. Syl. 3 (III, 257). Following change in state statutory construction. Approved in Yocum v. Parker, 134 Fed. 212, 67 C. C. A. 227, apply- ing rule in construing devise of land. 6 Pet. 302-316, 8 L. 406, GREENLEAF v. BIRTH. Syl. 5 (III, 259). Ejectment— Burden of proof. Approved in Robinson v. Lowe, 56 W. Va. 312, 49 S. E. 252, and Altschul v. Casey, 45 Or. 190, 76 Pac. 1085, both following rule; Davis V. Commonwealth Land etc. Co., 141 Fed. 733, applying principle in suit to quiet title. 6 Pet. 323-327, 7 L. 414, NEW JERSEY v. NEW YORK. Syl. 1 (III, 261). Demurrer is appearance. Approved in United States v. Grief en (Sayre etc. Co. v. Grief en), 72 N. J. L. 3, 60 Atl. 513, filing of demurrer waives objection to juris- diction over person; Groel v. United Elec. Co., 68 N. J. Eq. 250, 59 Ala. 641, under Chancery Act, § 3, plea by foreign corporation in suit in which personal decree sought, reciting that defendant appears by officers solely to object to jurisdiction, is sufficient. 6 Pet. 328-347, 8 L. 415, BOARDMAN v. REED. Syl. 1 (III, 261). Hearsay evidence to prove boundaries. Approved in Ivey v. Cowart, 124 Ga. 162, 110 Am, St. Rep. 163, 52 S. E. 438, following rule. Syl. 9 (III, 264). Repugnant call in patent. Approved in United States v. Utah etc. Stage Co., 199 U. S. 423, 50 L. 255, 26 Sup. Ct. 69, increase in service required on mail route as result of establishment of new distributing station, amounting to 6 Pet. 389-444 Notes on U. S. Reports. 134 three hundred thousand miles of additional transfer service, cannot be required by postmaster without extra compensation; American Bonding Co. v. Pueblo Inv. Co., 150 Fed. 27, construing lessee's agree- ment and bond to install heating plant and to pay for same to end that no lien should be fastened on property; United States etc. Co. v. Board of Commrs., 145 Fed. 148, construing fidelity bond given by cashier of bank made depository of county funds ; Luhrig Coal Co. v. Jones etc. Co., 141 Fed. 622, construing contract of sale of coal for future delivery. 6 Pet. 389-403, 8 L. 437, WATTS v. WADDLE. Syl. 6 (III, 271). Belief granted under general prayer. Approved in Ratliff v. Sommers, 55 W. Va. 37, 46 S. E. 715, deter- mining right to amend bill to bring in necessary party as shown by evidence. Syl. 7 (III, 271). Compelling conveyance of extraterritorial lands. Approved in State v. District Court, 94 Minn. 372, 102 N. W. 870, action to cancel contract for sale of land on ground of fraud and for recovery of purchase price paid before fraud discovered is transitory. 6 Pet. 404-430, 8 L. 443, McLANE v. UNITED STATES. Syl. 2 (III, 271). Release of forfeiture. Approved in Marvin v. Trout, 199 U. S. 225, 50 L. 162, 26 Sup. Ct. 31, upholding Ohio Rev. St., § 4275, authorizing action to subject build- ing knowingly permitted to be used for gambling purposes to payment of judgment obtained by informer for recovery of money lost there at play. 6 Pet. 431-444, 8 L. 452, CINCINNATI v. WHITE. Syl. 5 (III, 275). Dedication — Fee in original owner. Approved in Nelson v. Randolph, 222 111. 538, 78 N. E. 916, under Rev. Laws 1833, p. 599, § 1, providing that plats of towns be made by county surveyor, plat not made by surveyor does not affect dedication of streets; Anderson v. Messinger, 146 Fed. 948, arguendo. Syl. 6 (III, 275). Owner cannot revoke dedication. Approved in Wilkins v. Chicago etc. R. R. Co., 110 Tenn. 450, 75 S. W. 1032, arguendo. Syl. 7 (III, 278). Construction of dedications. Cited in Lomax v. Phillips, 113 La. 858, 37 So. 780, arguendo. See 106 Am. St. Rep. 239, note. Syl. 10 (III, 282). Ejectment by owner of dedicated land. Approved in Conradt v. Miller, 2 Alaska, 436, injunction lies to pre- vent erection of wharves or warehouses by private persons on public highway or navigable streams in front of plaintiff's property, where hb shows special injury. 135 Notes on U. S. Reports. 6 Pet. 470-621 Distinguished in Bork v. United N. J. etc. Co., 70 N. J. L. 2G9, 103 Am. St. Rep. 808, 57 Atl. 413, 64 L. R. A. 836, owner of fee of land subject to easement of public highway may maintain ejectment against intruder who appropriates same to purpose foreign to easement. 6 Pet. 470-497, 4 L. 467, UNITED STATES v. NOURSE. Syl. 5 (III, 286). Appeal — Dismissal for want of jurisdiction. Approved in Miltimore v. Hoffman, 12.5 Wis. 562, 104 N. W. 842, where appeal from justice's court was perfected and circuit court found justice had no jurisdiction, it was its duty to dismiss action, 6 Pet. 498-514, 8 L. 477, BARCLAY v. HOWELL'S LESSEE. Syl. 1 (III, 286). Ejectment — Description of premises. See 101 Am. St. Rep. 118, note, Syl. 2 (III, 286), Map as evidence of dedication. Approved in Evans v. Blankenship, 4 Ariz. 315, 39 Pac. 813, deter- mining dedication of land as public square. Syl. 6 (III, 289). Property dedicated to particular use — Reverter. Approvetl in McAlpine v. Chicago etc. Ry. Co., 68 Kan. 214, 75 Pac. 75, 64 L. R. A. 85, following rule. Syl. 10 (III, 291). Dedication — Fee remains in land owner. See 101 Am. St. Rep. 104, note, 6 Pet. 515-597, 8 L. 483, WORCESTER v. GEORGIA, Syl. 14 (III, 297). Construction of Indian treaties. Approved in Conway v. United States, 149 Fed. 266, where Ponca squaw selected allotment and before approval thereof she married an- other allottee, and later each made separate lieu applications and by mis- take patent issued to husband as head of family, she was entitled to half of land ; Winters v. United States, 143 Fed. 746, under Indian treaty of 18S8, Indians residing on reservation were entitled to portion of waters of Milk river for irrigation of reservation lands; In re Heff, 197 U. S. 499. 49 L. 853, 25 Sup. Ct. 506, arguendo. Distinguished in Delaware Indians v. Cherokee Nation, 193 U. S. 140, 48 L. 653, 24 Sup. Ct. 342, parol evidence of understanding of parties is inadmissible to contradict terms of agreement of 1867 between Dela- ware and Cherokee nations. (Ill, 292.) Miscellaneous. Cited in Blevins v. Morledge, 5 Okl. 145, 47 Pac. 1069, words giving joint authority to three or more public officers give authority to majority of them. 6 Pet. 598-621, 8 L, 514, CRANE v. MORRIS. Syl. 1 (III, 298). Nonsuit against plaintiff's consent. Approved in Parks v. Southern Ey. Co., 143 Fed. 278. on making mo- tion by defendant for direction of verdict it is discretionary with court 6 Pet. 622-665 Notes on U. S. Reports. 136 to grant motion and to refuse plaintiff nonsuit; Huntt v. McXamee, 141 Fed. 294, after plaintiff submits evidence and motion for direction of verdict by defendant has been submitted and sustained, it is dis- cretionary to allow nonsuit. Syl. 7 (III, 300). Prima facie evidence not disregarded. Approved in State v. Martin, 47 Or. 290, 83 Pac. 852, witness in homicide case cannot be impeached by production of his testimony at inquest where stenographer could not say notes contained all of witness' testimony. 6 Pet. 622-633, 8 L. 523, KELLY v. JACKSON. Syl. 3 (III, 301). Prima facie evidence defined. Approved in State v. Dodds, 54 W. Va. 300, 46 S. E. 232, following rule; Tift v. Southern Ry. Co., 138 Fed. 759, act to regulate commerce creates presumption in favor of commissioner's report; Gilpin v. Mis- souri etc. Ey. Co., 197 Mo. 325, 94 S. W. 871, holding prima facie case not made out in action for killing of mare under statute making rail- road liable where stock killed after going on track at place where no cattle-guards existed. 6 Pet. 648-660, BOYLE v. ZACHRIE. Syl. 1 (III, 306). No error from refusal to quash execution. Approved in King v. Davis, 137 Fed. 233, where ejectment was brought by third person against tenant, and landlord had no knowledge of ac- tion in time to have himself made party, he may have default judgment against tenant opened, and be allowed to defend. Syl. 3 (III, 307). Federal equity practice not governed by states. Approved in Brown v. Lanyon, 148 Fed. 842, action at law not main- tainable for recovery of profits from infringement of patent. Syl. 5 (III, 308). Federal execution— Effect of state law. Approved in King v. Davis, 137 Fed. 241, Va. Code, 1887, § 3566, re- quiring filing of lis pendens in office of clerk of court in county where land lies does not apply to federal courts. Syl. 6 (III, 309). Stay of execution — Supersedeas prior to levy. Approved in Thalheim v. Camp Phosphate Co., 48 Fla. 195, 37 So. 525, Rev. St. 1892, § 1272, does not have effect of restoring property levied on to defendant in execution. 6 Pet. 661-665, 8 L. 537, EX PARTE DAVENPORT. Syl. 1 (III, 309). Mandamus to allow double plea. See 98 Am. St. Rep. 903, note. 6 Pet. 666-679, 8 L. 538, LINDSEY v. MILLER. Syl. 1 (III, 310). No limitations against state. See 101 Am. St. Rep. 151, 165, 182, note. 137 Notes on U. S. Reports. 6 Pet. 666-760 6 Pet. 691-760, 8 L. 547, UNITED STATES v. ARREDONDO. Syl. 1 (III, 312). Jurisdiction defined. Approved in Franklin Union v. People, 220 111. 366, 110 Am. St. Rep. 248, 77 N. E. 180, fact of defect of parties does not deprive court of jurisdiction over suit for injunction; O'Brien v. People, 210 111. 3G3, lOS Am. St. Rep. 219, 75 N. E. 112, where in suit to obtain injunction against strikers, defendants were served with process; but failed to file an- swers or demurrers, court acquired jurisdiction irrespective of defects in bill. Syl. 4 (III, 316). Effect of government's consent to suit. Affirmed in Walker v. United States, 139 Fed. 412, where marshal has in good faith rendered accounts against government, covering services of deputies, which have been allowed and paid, government cannot recover such sums after lapse of years. Syl. 9 (III, 318). Actual fraud not presumed. Approved in Kessler v. Ensley, 141 Fed. 137, applying rule to pur- chase of proj^erty of corporation by director. Syl. 13 (III, 319). Acts of ofliccrs not presumed usurped. - Approved in McGuire v. Blount, 199 U. S. 146, 50 L. 129, 26 Sup. Ct. 1, documents which show probate of will in proceedings had during Spanish control of Florida, and judicial sale of testator's lands, and bear evidence of age and authenticity, and come from custody of United States surveyor general, are admissible as ancient documents. Syl. 16 (III, 321). Conclusiveness of finding of public officers. Approved in Eddy v. People, 218 HI. 616, 75 N. E. 1072, under laws 1877, board of trustees in passing upon application for pension acts in quasi judicial capacity, and its finding is conclusive. Syl. 17 (III, 323). Judicial questions — Acts of public officers. Approved in Ward v. Board of Regents, 138 Fed. 378, where board of regents of college were authorized by statute to remove professors when- ever best interests of college should require, ground on which professor was removed prior to expiration of contract is not subject for judicial investigation; Threadgill v. Colcord, 16 Okl. 469, 85 Pac. 710, purchaser at master's sale who is himself party cannot collaterally attack decree for irregularity. Syl. 22 (III, 325). Nothing implied in public grant. Approved in Knoxville Water Co. v. Knox\-ille, 200 U. S. 35. 50 L. 359, 26 Sup. Ct. 224, municipal grant of waterworks franchise does not impliedly devest municipality of power to construct its own waterworks. 7 Pet. 1-50 Notes on U. S. Eeports. 138 Syl. 26 (III, 328). Seisin presumed from title. Approved in Tyee Consol. Min. Co. v. Langstcdt, 136 Fed. 128, 69 C. C. A. 548, no disseisin sufficient to start statute of limitations as against locator of mining claim can exist prior to issuance of patent. Syl. 29 (III, 329). Ratification of treaty relates to date. Approved in In re Minook, 2 Alaska, 208, construing Eussian treaty with reference to citizenship of half-breeds. VII PETERS. 7 Pet. 1-17, 8 L. 587, UNITED STATES v. McDANIEL. Syl. 3 (III, 334). Authority of departmental heads presumed. Approved in Benson v. Henkel, 198 U. S. 12, 49 L. 923, 25 Sup. Ct. 569, objections to indictment charging violation of Eev. St., § 5451, in bribing federal officer to reveal contents of reports of pending land department investigation, are not available in proceedings before com- missioner for removal of accused to another federal district. Syl. 4 (III, 334). Usage as evidence of construction of law. Approved in Walker v. United States, 139 Fed. 416, applying rule in estopping government from claiming setoff in suit by marshal, where items of setoff allowed and audited and paid to deputies for services. Syl. 5 (III, 335). Setoff by departmental clerk. Approved in United States v. Warren, 12 Okl. 365, 71 Pac. 690, in action by United States defendant may plead setoff to extent of demand made, but no judgment for balance in his favor can be rendered. (Ill, 334.) Miscellaneous. Cited in McDaid v. Territory 1 Okl. 112, 30 Pac. 444, as to right to appeal to courts from decision of local land office. 7 Pet. 28-50, 8 L. 596, UNITED STATES v. FILLEBEOWN. Syl. 1 (III, 338). Parol proof of proceedings of boards. Approved in City of Denver v. Spencer, 34 Colo. 274, 2 L. E. A. (N. S.) 47, 82 Pac. 591, where city charter did not specify how park board should act or that record of its acts should be exclusive evidence thereof, parol evidence admissible to show board had ordered erection of stand. Syl. 2 (III, 339). Services according to departmental usage. Approved in United States v. Schlierholz, 133 Fed. 335, special agent of general land office is not officer of United States within extortion act. 139 Notes on U. S. Reports. 7 Pet. 51-149 7 Pet. 51-98, 8 L. 604, UNITED STATES v. PERCHEMAN. Syl. 2 (III, 341), Cession of territory preserves property rights. Approved in In re Chavez, 149 Fed. 75, on bankruptcy of husband having only community estate, claims of antenuptial creditor postponed till satisfaction of community creditors; Catron v. Laughlin, 11 N. M. 630, 72 Pac. 31, where New Mexico surveyor general declared Mexican land grant valid and recommended its confirmation without limitation as to quantity, and Congress confirmed grant as recommended confir- mation is declaration that title to all land claimed is valid. 7 Pet. 99-102, 8 L. 621, MINOR v. TILLOTSON. Syl. 1 (III, 347). Secondary evidence — Diligence to obtain original. Distinguished in Brown v. Harkins, 131 Fed. 66, 65 C. C. A. So^, refusing evidence of contents of plaintiff's record-book in action by distiller to recover revenue taxes illegally collected, where col- lector took books. 7 Pet. 113-129, 8 L. 626, DOUGLASS ▼. REYNOLDS. Syl. 4 (III, 350). Construction of guaranties. Approved in First Nat. Bank v. Waddell, 74 Ark. 248, 85 S. W. 419, where mortgage issued by father to bank to cover advances to son to certain sum, payments made by son within amount did not discharge mortgage. Syl. 5 (III, 351). Letter of credit as continuing guaranty. Approved in Rouss v. King, 69 S. C. 174, 48 S. E. 222, surety not released by extension of credit beyond amount stipulated in contract. 7 Pet. 138-143, 8 L. 636, UNITED STATES v. MILLS. Syl. 2 (III, 356). Indictment in language of statute. Approved in United States v. Allen, 150 Fed. 154, holding indict- ment under Rev. St., § 4046, for embezzlement of money order funds, insuiTicient where it does not allege funds came into defendant 5p possession by virtue of employment; United States v. Green, 136 Fed. 641, 643, holding insufficient indictment under Rev. St., § 5431, for bribing officer with check. 7 Pet. 144-149, 8 L. 638, PICKETT'S HEIRS v. LEGERWOOD. Syl. 1 (III, 359). Failure to file return of error during term. Approved in Equitable etc. Soc. v. Tolbert, 145 Fed. 339, where, owing to delay in payment of docket fee, record, though lodged with clerk in time, was not filed until five days after return day, motion to dismiss writ of error four months afterward denied. Syl. 2 (III, 359). Error prior to judgment corrected on motion. Approved in Billups v. Freeman, 5 Ariz. 272, 52 Pac. 368, arguendo. See 97 Am. St. Rep. 372, note. 7 Pet. 150-242 Notes on U. S. Keports. 140 Syl. 4 (III, 360). "When coram nobis lies. Approved in King v. Davis, 137 Fed. 227, 233, vacating judgment in ejectment suit brought against tenant where landlord not made party to suit; Fugate v. State, 85 Miss. 94, 107 Am. St. Eep. 272, 37 So. 556, writ of error coram nobis cannot be invoked in criminal proceeding to revoke judgment by showing jurors had formed opinion unfavorable to accused; Hadley v. Bernero, 103 Mo. App. 562, 78 S. W. 68, where, on appeal from justice judgment, question of jur- isdiction for failure to appeal in time is not raised, motion in nature of writ of error coram nobis will not lie. 7 Pet. 150-163, UNITED STATES v. WILSON. Syl. 2 (III, 361). Pardon defined. Approved in Territory v. Eichardson, 9 Okl. 584, 60 Pac. 245, 49 L. E. A. 440, reaffirming rule; Fite v. State, 114 Tenn. 656, 88 S. W. 943, holding void statutory provision authorizing deduction of time for good conduct. Syl. 7 (in, 363). Pardon, how brought before court. Approved in Territory v. Eichardson, 9 Okl. 583, 60 Pac. 247, 49 L. E. A. 440, pardon may be available at any time before execution of sentence. Syl. 8 (III, 363). Pardon annuls offense. Approved in In re Briggs, 135 N. C. 123, 47 S. E. 405, upholding Code, § 1215, providing no witness can refuse to testify on prosecu- tion relative to gambling, but providing that disclosures made by him cannot be used against him. 7 Pet. 171-219, 8 L. 647, HOLMES v. TEOUT. Syl. 3 (III, 365), Cancellation of deed — Grantor's title not rein- stated. # Approved in Clark v. Harper, 215 111. 39, 74 N. E. 67, applying rule where deed made in violation of injunction was destroyed before rec- ord. 7 Pet. 222-242, 8 L. 665, SAMPEYEEAC v. UNITED STATES. Syl. 1 (III, 366). Eetrospeetive statutes valid. Approved in Wallace v. Adams, 143 Fed. 726, power conferred on Dawes Commission and federal courts in Indian Territory by act of 1896, and on supreme court by act of 1898, to determine who were citizens of Choctaw nation, was legislative, and judgments thereunder were subject to subsequent legislation respecting citizenship; Boggs V. Ganeard, 148 Cal. 721, 84 Pac. 199, upholding amendment of 1903, 141 Notes on U. S. Reports. 7 Pet. 243-275 to Pol. Code, § 3443, relating to contests by previous settlers as against purchasers who made application for purchase prior to ite passage. Syl. 3 (III, 367). Grantee conveys only his title. Approved in Lindblom v. Rocks, 146 Fed. 663, where defendant's grantor had no title nor right of possession to land in controversy at time he attempted to sell such right of possession to defendant, defendant acquired no title to subject matter of purchase and could not avail himself of defense of bona fide purchaser; Slaughter v. Mallet Land etc. Co., 141 Fed. 293, Texas county commissioner's courts may lease school lands and give preferential right of purchase to lessee. 7 Pet. 243-251, 8 L. 672, BARRON v. MAYOR AND CITY COUNCIL OF BALTIMORE. Syl. 1 (III, 3G7). Fifth amendment not applicable to states. Approved in Ex parte Munn, 140 Fed. 783, federal court has no power on habeas corpus to discharge prisoner for contempt of state court in refusing to answer questions as witness on ground that an- swers might incriminate him; Town of Nahant v. United States, 136 Fed. 281, 69 L. R. A. 723, 70 C. C. A. 641, determining right of municipality to compensation for structures and improvements on lands and streets taken by government by eminent domain; St. Louis etc. Ry. Co. v. Davis, 132 Fed. 632, federal court is not given juris- diction of suit to enjoin officers of state from contemplated act by allegation that act will be in violation of fifth amendment; State v. Rudolph, 187 Mo. 82, 85 S. W. 587, upholding state prosecution for felony by information; State v. Miller, 71 N. J. L. 532, 60 Atl. 203, admitting evidence of jail physician that he compelled defendant to strip and found wounds on back of his hands; State v. MacQueen, 69 N. J. L. 527, 55 Atl. 1008, admitting newspaper articles found on defendant when arrested; In re Briggs, 135 N. C. 120, 47 S. E. 404, upholding Code, § 1215, denying right to refuse to testify touching gambling transactions, and providing discovery made b}' witness cannot be used against him; Territory v. Stroud, 6 Okl. Ill, 50 Pac. 267, upholding prosecution of misdemeanors by information without preliminary examination; Riley v. Charleston Union Station Co., 71 S. C. 483, 110 Am. St. Rep. 581, 51 S. E. 495, upholding act of 1902, grant- ing corporation right to condemn land for union depot; King v. Hat- field, 130 Fed. 578, arguendo. 7 Pet. 252-275, 8 L. 675, VATTIER v. HINDE. Syl. 4 (III, 374). Rights of bona fide purchaser. Approved in Lindblom v. Rocks, 146 Fed. 663, where defendant's grantor had no title nor right of possession to land in controversy at time he attempted to sell right of possession to defendant, defendant acquired no title and could not set up liona fide purchase ; .lohnson V. Georgia Loan etc. Co., 141 Fed. 597, 598, bona fide purchaser must 7 Pet. 292-463 Notes on U. S. Reports. 142 allege want of actual notice and actual payment of purchase price independently of recitals in deed; Shook v. Southern B. & L. Assn., 140 Ala. 579, 37 So. 410, beneficiary in void trust deed executed by husband and wife conveying realty belonging in equity to wife, hus- band having legal title, to secure husband's debt, is not bona fide purchaser without notice of wife's equity; Slaughter v. Coke Co., 34 Tex. Civ. 602, 79 S. W. 865, under conveyance reciting grantor sold all right, title and interest in certain lands transferred to grantor by order of commissioner's court and contract for deed, grantee took only grantor's title. 7 Pet. 292-323, 8 L. 689, SHAW v. COOPER. Syl. 6 (III, 380). Patents — Acquiescence in public use. Approved in Victor Talking Mach. Co. v. American Graphaphone Co., 140 Fed. 864, mere exhibition of an experimentally constructed machine by inventor to audience, accompanied by explanation of invention, no charge being made, is not public use so as to defeat right to patent applied for two years afterward. Distinguished in Eastman v. Mayor etc. of N. Y., 134 Fed. 853, 69 C. C. A. 628, where inventor of improved fire-engine pump placed device on engine of which he was engineer, where it was publicly tested and used for years, and shown to manufacturers of engine, there is no piracy in manufacturer placing device on another en- gine which they sold to another city. 7 Pet. 324-347, 8 L. 700, PEYROUX v. HOWARD (THE PLANTER). Syl. 3 (III, 382). Admiralty — Enforcement of local law lien. Approved in Fredericks v. Jas. Rees & Sons Co., 135 Fed. 731, 68 C. C. A. 368, Pa. Act 1858, giving lien for repairs on vessels navi- gating certain rivers in state, does not apply to dredger-boat used only for supporting and moving dredging apparatus; Commonwealth v. Aver etc. Co., 117 Ky. 169, 77 S. W. 688, home port of vessel en- gaged in interstate commerce is its tax situs though owner resides in different state; The Sue, 137 Fed. 135, arguendo. 7 Pet. 348-398, 8 L. 709, MAGNIAC v. THOMPSON. Syl. 2 (III, 387). Charge on matters of fact not reviewable. Approved in Pittsburgh Ry. Co. v. Bloomer, 146 Fed. 721, applying rule in action for personal injuries against street railway. 7 Pet. 453-463, 8 L. 745, IN RE UNITED STATES v. EIGHTY-FOUR BOXES OF SUGAR. Syl. 2 (III, 394). Revenue penal laws strictly construed. Approved in United States v. Ninety-nine Diamonds, 139 Fed. 967, 968, 2 L. R. A. (N. S.) 185, where one who had right of possession of and lien on imports, together with option to purchase, declared 143 Notes oa U. S. Reports. 7 Pet. 4G9-650 in good faith in making entry tbat he was owner, he was not guilty of offense under 26 Stat. 135. 7 Pet. 469-553, 8 L. 751, LESSEE OF LIVINGSTON v. MOORE. Syl. 4 (III, 397). Ninth amendment not limitation on states. Approved in Territory v. Stroud, 6 Old. Ill, 50 Pac. 267, uphold- ing prosecution of misdemeanor by information without preliminary examination. Distinguished in Bradford v. Territory, 1 Okl. 371, 34 Pac. 67, hold- ing void Okl. St., c. 70, art. 18, § 22, providing that nine jurors may return verdict. 7 Pet. 568-585, 8 L. 780, EX PARTE WATKINS. Syl. 3 (III, 401). Commitment till fine paid. Approved in State ex rel. Caillouet v. Mannought, 111 La. 236, 35 So. 533, commitment for vagrancy fixing period of detention for certain designated period not void, though contrary to ordinance. 7 Pet. 608-624, 8 L. 801, BRASHEAR v. WEST. Syl. 9 (III, 407). Counterclaims acquired after assignment. Distinguished in Williams v. Neely, 134 Fed. 5, 69 L. R. A. 232, 67 C. C. A. 171, a sound reason, inhering in same transaction from which note springs, why holder ought not recover face value, is good equitable defense, though it constitute no offset against holder of note. Syl. 11 (III, 408). Service of garnishment. Approved in Barton v. Spencer, 3 Okl. 274, 278, 41 Pac. 606, 608, where service of process in garnishment is had, subsequent attach- ing creditors obtain no rights as against creditor obtaining garnish- ment. 7 Pet. 634-650, 8 L. 810, EX PARTE BRADSTREET. Syl. 3 (III, 410). Mandamus to reinstate cause and enter decree. Approved in Barber Asphalt Pav. Co. v. Morris, 132 Fed. 934, 956, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel cir- cuit judge to vacate order staying proceedings pending determina- tion of appeals in state court; In re Dowd, 133 Fed. 751, arguendo. See 98 Am. St. Rep, 893, note. VIII PETERS. 8 Pet. 1-3, 8 L. 845, DUNN v, CLARKE. Syl. .3 (III, 414). Citizenship — Injunction to stay execvition. Approved in O'Connor v. O'Connor, 146 Fed. 997, federal equity suit to set aside dismissal entered by same court in action at law is ancillary to such action and within, jurisdiction of federal court, ir- respective of citizenship; Campbell v. Golden Cycle Min. Co., 141 Fed. 613,. 616, dependent suit cannot be sustained to adjudicate claims of those not parties to or in privity with original suit, except in case of those who claim interest in property in custody of court. 8 Pet. 4-11, 8 L. 846, STRATTON v. JARVIS. Syl. 6 (III, 417). Admiralty — Amount in dispute — Joint claimants. Approved in The Joseph B. Thomas, 148 Fed. 767, where number of libelants j(nn in suit for wages, claims cannot be added together to give appellate jurisdiction. 8 Pet. 18-29, 8 L. 852, ERWIN v. BLAKE. Syl. 4 (III, 420). Equitable relief on equitable terms. Approved iu dissenting opinion in Haydon v. St. Louis etc. R. R. Co., 117 Mo. App. 108, 93 S. W. 843, majority holding restoration of consideration received is not prerequisite to cancellation of agree- ment and damages, if petition ask that all sums paid out by de- fendant under contract be credited on judgment. 8 Pet. 44-51, 1 L. 861, LEE v. LEE. Syl. 5 (111, 422). Acts in fraud of law violate it. Approved in Curley v. United States, 130 Fed. 11, 64 C. C. A. 369, one who, by agreement with another who desires appointment as letter carrier, falsely impersonates other at civil service ex- amination, is guilty of conspiracy to defraud within Rev. St., § 5440. 8 Pet. 52-74, 8 L. 863, ARMSTRONG v. LEAR. Syl. 3 (III, 422). Foreign laws must be pleaded. See 113 Am. St. Rep. 871, note. 8 Pet. 88-111, 8 L. 876, WATSON v. MERGER. Syl. 4 (III, 427). Validating acts do not impair contracts. Approved in Whitlock v. Hawkins, 105 Va. 251, 53 S. E. 404, upholding act of 1906, amending Code, c. 23, relating to assessments and validating assessments. [144] 145 Notes on U. S. Reports, 8 Pet. 112-28T 8 Pet. 112-117, 8 L. 885, BEOWN v. KEENE. Syl. 2 (III, 430). Federal jurisdiction must affirmatively appear. Approved in Thomas v. Board of Trustees, 195 U. S. 210, 218, 49 L. 164, 167, 25 Sup. Ct. 24, allegation that defendant, board of trustee3 of Ohio University, is citizen of that state, is insufficient averment that it is Ohio corporation, within federal jurisdictional rule, where statute creating board has been held not to confer corporate powers; Irving V. Smith, 132 Fed. 207, allegation in removal petition tliat defendant is citizen of another state is not equivalent to allegation of nonresidence; Myers v. Berry, 3 Okl. 618, 41 Pac. 582, denying equity jurisdiction of suit to annul action of townsite trustees in disposing of lot where petition insufficient. 8 Pet. 128-147, 8 L. 890, BANK OF UNITED STATES v. RITCHIE. Syl. 5 (III, 434). No decree pro confesso against infant. Approved in Rankin v. Schofield, 71 Ark. 173, 100 Am. St. Rop. 59, 66 S. W. 198, compromise judgment affecting interests of ward in estate, to which guardian assents, does not preclude appeal by ward after majority. 8 Pet. 148, 149, 8 L. 898, JACKSON v. ASHTON. Syl. 4 (III, 437). Want of jurisdiction cannot be waived. Approved in International etc. R. Co. v. Hoyle, 149 Fed. 182, want of jurisdiction of suit removed by one of two joint defendants raisable at any time by any party or by court sua sponte. 8 Pet. 150-164, 8 L. 899, UNITED STATES v. RINGGOLD. Syl. S (III, 438). Setoff against United States. Approved in United States v. Warren, 12 Okl. 365, 71 Pac. 690, allowing setoff in suit by United States to extent of demand made. 8 Pet. 262-270, 8 L. 938, BANK OF UNITED STATES v. WHITE. Syl. 1 (in, 445). Necessary parties to bill of review. Approved in State Fair Assn. v. Terry, 74 Ark. 157. 85 S. W. 89, where, pending appeal in suit to redeem from foreclosure, one de- fendant represented by guardian died, and appeal dismissed for failure to revive, notice of bill of review served on guardian and not on heirs is insufficient. 8 Pet. 2S1-287, 8 L. 945, MUMMA v. POTOMAC COMPANY. Syl. 2 (III, 448). Scire facias — Dissolution of corporation. Distinguished in Hudson v. Limestone Natural Gas Co., 132 Fed. 411, in absence of statutory authority therefor, stockholders of dis- solved corporation cannot be held imlividually liable for damages caused by negligence of corporation committed in conduct of its business before dissolution. 10 8 Pet. 291-374 Notes on U. S. Eeports. 146 Syl. 3 (III, 449). Corporate contracts — Cancellation of charter. Approved in Griffith v, Blackwater B. & L. Co., 55 W. Va. 609, 48 S. E. 443, 69 L. E. A. 124, where executory contract with cor- poration is terminated by dissolution of corporation, contractor is entitled to compensation for services till termination of contract and for reimbursement of necessary outlay. See 103 Am. St. Eep. 570, note. 8 Pet. 291-305, 8 L. 949, LIFE AND FIEE INS. CO. OF NEW YOEK V. WILSON'S HEIES. Syl. 1 (III, 453). No mandamus in doubtful cases. Approved in State v. United States Express Co., 95 Minn. 445, 104 N. W. 557, denying mandamus to compel carrier to accept pack- ages from one engaged in lottery business. Syl. 3 (III, 454). Mandamus to inferior tribunal. Cited in In re Dowd, 133 Fed. 751, arguendo. Syl. 4 (III, 454). New trial by successor of trial judge. Approved in United States v. Meldrum, 146 Fed. 392, applying rule in criminal case. Syl. 6 (III, 455). Mandamus to compel signing of judgment. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 954, 956, 67 L. E. A. 761, 66 C. C. A. 55, mandamus lies to compel circuit judge to vacate order staying proceedings pending determination of appeals in state court. See 98 Am. St. Eep. 894, note. 8 Pet. 361-374, 8 L. 974, BANK OF UNITED STATES v. DON- NALLY. Syl. 7 (III, 460). Law governing remedy on contracts. Approved in Anglo-American etc. Co. v. Wood, 143 Fed. 684, under Pennsylvania law permitting joinder of causes of action, judg- ment creditor of Kansas corporation suing stockholder in Pennsyl- vania federal court may join in the statement of claim counts based on Kansas statute giving him right of action because of insolvency of corporation and giving him right of action because of its dis- solution; Murray v. Farrell, 2 Alaska, 363, applying rule in action on note made in Montana where defendant moved to Alaska before Montana limitations ran; Brand v. Brand, 116 Ky. 797, 798, 76 S. W. 872, 63 L. E. A. 206, where plaintiff holding note against defend- ant assigned it to A. for collection, and New York court decided for defendant on ground of limitations, such judgment not bar to action in Kentucky where different limitation existed; Clark v. Eltinge, 38 Wash. 383, 107 Am. St. Eep. 858, 80 Pac. 559, exemp- tions of married woman as debtor are governed by law of place of suit; Supreme Lodge, Knights of Pythias v. Meyer, 198 U. S. 517, 49 L. 1149, 25 Sup. Ct. 754, arguendo. 147 Notes on U. S. Reports. 8 Pet. 375-699 8 Pet. 375-386, 8 L. 979, UNITED STATES v. JONES. Syl. 3 (III, 462). Admissibility of item in treasury transcript. Approved in United States v. Pierson, 145 Fed. 819, in action on bond of Indian agent, transcript of books and proceedings of treasury department is not evidence of receipt by such agent of moneys that did not come to his hands through ordinary channels of depart- ment. Syl. 4 (III, 463). Treasury transcript as evidence. Approved in United States v. Pierson, 145 Fed. 817, in absence of countervailing evidence in action on Indian agent's bond, duly certified transcript of books and proceedings of treasury depart- ment entitle government to judgment. 8 Pet. 399-419, 8 L. 988, UNITED STATES v. JONES. Syl. 5 (III, 4G4). Burden to disprove receipts. Approved in Devencenzi v. Cassinelli, 28 Nev. 232, 81 Pac. 42, applying rule in action for balance due on account stated. 8 Pet. 420-434, 8 L. 995, HOLT v. EODGERS. Syl. 2 (III, 464). Laches defeats specific performance. Approved in Marks v. Gates, 2 Alaska, 526, refusing specific per- formance of grubstake contract. 8 Pet. 538-556, 8 L. 1036, THE VIRGIN v. VYFHIUS. Syl. 6 (III, 477). Libel on bottomry bond — Burden of proof. Approved in The Wyandotte, 145 Fed. 326, following rule. 8 Pet. 588-590, 8 L. 1054, BRADSTREET v. HUNTINGTON. Syl. 1 (III, 481). Mandamus does not control discretion. Distinguished in Barber Asphalt etc. Co. v. Morris, 132 Fed. 956, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel circuit Judge to vacate order staying proceedings pending deter- mination of appeals in state court. 8 Pet. 591-699, 8 L. 1055, WHEATON AND DONALDSON v. PETERS AND GRIGGS. Syl. 3 (III, 482). Literary proprietorship in manuscript protected. Approved in Walker v. Globe Newspaper Co., 140 Fed. 306, 307, upholding right to sue at law for damages for infringement of copyrighted map; Werckmeister v. American Lith. Co., 134 Fed. 325, 68 L. R. A. 591, exhibition of original copyrighted* painting at academy, at which no person was entitled to copy same, and others than members only admitted on payment of fee, without notice of copyright thereon, is not publication avoiding copyright. 9 Pet. 8-106 Notes on U, S. Eeports. 148 Syl. 4 (m, 483). Common law of United States, Approved in Walker v. Globe Newspaper Co., 130 Fed. 596 (re- versed 140 Fed. 305), owner of copyrighted map cannot recover damages at law for infringement thereof; Valentine v. Koberts, 1 Alaska, 544, issuance and service of order of arrest in civil pro- ceeding on Sunday is void; In re Burkell, 2 Alaska, 117, stealing of dog is larceny, Syl. 7 (III, 484). Copyright is purely statutory. Approved in Bobbs-Mcrrill Co. v, Straus, 147 Fed. 19, 21, 23, where complainant sold copies of copyrighted book in which was published notice that retail price was $1, and that sales at less price would be treated as copyright, he was not entitled to injunc- tion restraining sale at less than $1; Hartman v. Park & Sons Co., 145 Fed. 360, upholding' contracts between maker of proprietary medicine between himself and wholesalers, to whom alone he sold medicine by which they sold only at certain price and to certain retailers, and between him and retailers whereby they' agreed to sell only at certain price. Syl. 9 (III, 485). Copyright vests on recordation. Approved in G. & C. Merriam Co. v. United Diet. Co., 140 Fed. 769, where plates for copyrighted books are, after publication here, taken to England and edition printed there without notice of Ameri- can copyright, reproduction here from copy of English edition is not infringement. IX PETSES; 9 Pet. 8-32, 9 L. 31, UNITED STATES v. NOUESE, Syl. 2 (III, 489). Execution is end of law. Approved in Ingraham v. National Salt Co., 139 Fed. 690, where, pending federal suit by attachment, state insolvency proceedings against defendant instituted under which receiver took possession of attached property and sold same, and subsequently plaintiff secured judgment in federal court and got execution, and state court enjoined federal sale, federal court refused to enjoin receiver; McKinster v, Sager, 163 Ind. 686, 106 Am. St. Kep. 268, 72 N. E. 860, 68 L. E. A. 273, holding void Acts 1903, p. 276, c. 153, making sales by merchant, save in usual course of trade, void as to creditors, excepting under certain conditions. 9 Pet. 86-106,-9 L. 660, CALDWELL v. CAEEINGTON. Syl. 3 (III, 493). Jurisdiction necessary to lis pendens. Approved in Hunter v. Coe, 12 N. D. 512, 97 N. W. 871, one pur- chasing realty with notice of outstanding option compelled to convey 149 Notes on U. S. Eeports. 9 Pet. 117-266 on purchaser paying him from unpaid purchase price amount paid to vendor. 9 Pet. 117-136, 9 L. 71, DELASSUS v. UNITED STATES. Syl. 2 (III, 494). Inchoate title to land is property. Approved in Crochet v. McCamant, 116 La. 12, 40 So. 477, homostcad entry becomes community property though certificate and patent issued after death of wife. Syl. 3 (III, 494). Cession treaty protects private property rights. Approved in Corkran Oil etc. Co. v. Arnaudet, 111 La. 577, 35 So. 753, reaffirming rule. 9 Pet. 174-181, 9 L. 91, TARVER v. TARVER. Syl. 4 (III, 498). Federal courts — Correction of erroneous probate. Approved in Medill v. Snyder, 71 Kan. 598, 81 Pac. 219, time limited by statute of wills for bringing action in district court to contest will is not extended by Code Civ. Proc, § 23, relating to revival of actions by representatives. See 106 Am. St. Rep. 643, note. 9 Pet. 182-203, 9 L. 94, FIELD v. UNITED STATES. Syl. 1 (III, 499). Priority of United States— Local law. See 101 Am. St. Rep. 165, note. Syl, 4 (in, 499). Exceptions to evidence — Trial to court. Approved in Streeter v. Sanitary Dist. of Chicago, 133 Fed. 131, 66 C. C. A. 190, applying rule in action to recover amount due on con- tract for excavation of canal. 9 Pet. 238-260, 9 L. 113, UNITED STATES v. BAILEY. Syl. 2 (III, 503). Perjury before state official. Approved in United States v. Union Bridge Co., 143 Fed. 387, up- holding 30 Stat. 1153, requiring alteration of bridges over navigable waters on determination by Secretary of War that they obstruct navi- gation; United States v. Hardison, 135 Fed. 422, where defendant swore falsely as to qualifications as surety on distiller's bond, before deputy internal revenue collector, he was guilty of perjury under Rev. St., § 5392, though under state law he was guilty of false swear- ing; Finch V. United States, 1 Okl. 401, 403, 33 Pac. 640, 641, giving false testimony by juror on voir dire before United States district court is perjury. Distinguished in United States v. Sandefuhr, 115 Fed. 51, Rev. St., § 3449, does not apply to shipment, concealing name or brands required by regulations of internal department to be put on all vessels contain- ing liquors. 9 Pet. 275-404 Notes on U. S. Eeports. 150 9 Pet. 275-291, 9 L. 127, BOYCE'S EXECUTOES v. GRUNDY. Syl. 2 (III, 505). Decreeing sale of land in another state. Approved in Jones v. Byrne, 149 Fed. 470, following rule. 9 Pet. 319-328, 9 L. 142, UNITED STATES v. EOBESON. Syl. 1 (in, 507). Setoff against United States. Approved in United States v. Warren, 12 Okl. 365, 71 Pae. 690, al- lowing setoff in action by United States to extent of demand made. Syl. 5 (III, 508). Contract fixing mode of compensation. Approved in Continental Ins. Co. v. Vallandingham, 116 Ky. 300, 105 Am. St. Eep. 218, 76 S. W. 24, failure of insured to submit ad- justment of loss to appraisers as provided in policy is good defense to suit thereon; Hebert v. Dewey, 191 Mass. 410, 413, 77 N. E. 825, where under building contract providing for final payment only ou certifi- cate of architect, recovery may be had without certificate where ar- chitect without excuse refuses to act; McNichols v. Prudential Ins. Co., 191 Mass. 308, 77 N. E. 757, where life policy provided that premiums to be recognized must be entered on premium receipt-book, it is error to admit evidence of payment not entered on book; E. E. Souther Iron Co. v. Laclede Power Co., 109 Mo. App. 364, 84 S. W. 453, where meter designated in contract for measuring electric power furnished under contract is inadaquate for that purpose, evidence is admissible as to operation of another meter and of results obtained; Grady v. Home etc. Ins. Co., 27 E. I. 441, 63 Atl. 175, where policy provided for arbitration of loss as condition precedent to right of uction, where arbitration fails without fault of either party, insured must demand new arbitration before suing; Plumbing Co. v. Carr, 54 W. Va. 278, 282, 46 S. E. 461, 463, where plumbing and heating con- tract provided work to be done to satisfaction of owner, reasons for rejection cannot be ignored where not fraudulent. Syl. 8 (III, 513). Adopting state practice. improved in Jones v. Eogers, 85 Miss. 830, 38 So. 745, execution sale by marshal on federal judgment, outside of county in which land situated, is void, unless return shows it was held at place of holding federal court at written request of defendant. 9 Pet. 378-404, 9 L. 163, BANK OF UNITED STATES v. WAG- GENEE. Syl. 1 (III, 515). Usury — Necessity for intent. Approved in Gunby v. Armstrong, 133 Fed. 432, 66 C. C. A. 627, applying rule to note given by borrowing stockholder of loan associa- tion where borrower subscribed for stock; Anderson v. Creamery etc. Mfg. Co., 8 Idaho, 208, 101 Am. St. Eep. 188, 67 Pac. 495, 56 L. E. A. 554, where note provides for interest at ten cent per annum both before and after judgment, and no corrupt intent on part of lender to receive unlawful rate of interest appears, it is not usurious. 151 - Notes on U. S. Keports. 9 Pet. 405-091 9 Tot. 405-417, 9 L. 173, PJATT v. VATTIER. Syl. 1 (III, 517), Pleading exception in limitation statute. Approved in Pierce v. Perry, 189 Mass. 335, 109 Am. St. Eep. 637, 75 N. E. 736, where bill alleged that defendant acted as financial agent and trusted adviser of plaintiff's intestate, and as such did various acts described in bill, allegations were sufficient to show limi- tations pleaded in bar inapplicable, without special replication. 9 Pet. 483-540, 9 L. 201, HARRISON v. NIXON. Syl. 4 (III, 524). Law governing construction of wills. Approved in In re Estate of Riescnberg', 116 Mo. App. 314, 90 S. W. 1172, where testator domiciled in Missouri makes bequest to sister resident in Germany, or in case of her death before him to her heirs, question of who are her heirs is governed by laws of Missouri. 9 Pet. 607-G31, 9 L. 246, OWINGS v. HULL. Syl. 3 (III, 529). Judicial notice of state laws. See 113 Am. St. Eep. 873, note. Syl. 6 (III, 530). Ratification of agent's acts — Knowledge. Approved in McGlassen v. Tyrrell, 5 Ariz. 54, 44 Pac. lOSS, payee of note does not, by accepting interest paid in advance to agent, without knowledge that it was advance interest, ratify act of such agent, so as to discharge surety on note; Fosha v. O'Donnell, 120 Wis. 336, 97 N. W. 927, applying principle to ratification of stipu- lations of attorney. 9 Pet. 632-662, 9 L. 255, LIVINGSTON v. STORY. Syl. 2 (III, 532). Equitable remedies in federal courts. Approved in Bowdish v. Metzger, 71 Kan. 754, 81 Pac. 484, where petition in suit to quiet title is sufficient except that it does not plead title under which defendants claim, but states that its nature and extent is unknown, and prays its disclosure, it states good cause of action for discovery and relief. Syl. 5 (III, 532). Demurrer to bill good in part. Approved in Maeder v. Buffalo Bill's W. W. Co., 132 Fed. 282, applying rule where necessary party not made defendant in suit to set aside conveyance. 9 Pet. 682-691, 9 L. 273, UNITED STATES v. BRIG BURDETT. Syl. 3 (III, 535). Reasonable doubt bars forfeiture. Approved in dissenting opinion in Paine v. Foster, 9 Okl. 283, 60 Pac. 31, majority determining rights arising over contest between homesteader and townsite settler. 10 Pet. 1-24 Notes on U. S. Eeports. - 152 9 Pet. 704-710, 9 L. 280. EX PARTE MILBURN. S7I. 3 (III, 537). Arrest not barred by forfeiture of bail. Approved in State v. Schenck, 138 N. C. 564, 49 S. E. 918, holding bail bond liable for fine where accused did not pay it. 9 Pet. 711-763, 9 L. 283, MITCHELL v. UNITED STATES. Syl. 5 (m, 537). Property rights in ceded territory. Approved in In re Chavez, 149 Fed. 75, on bankruptcy of husband having only community estate, claims of antenuptial creditor post- poned to those of community creditors. Syl. 8 (III, 538). King sues as subject. Approved in Mountain Copper Co. v. United States, 142 Fed. 629, government suing as land owner to enjoin lawful business as nuisance has only rights of individual suitor. Syl. 9 (III, 538). Fee in crown subject to Indian's possession. Distinguished in Labadie v. United States, 6 Okl. 416, 51 Pac. 671, Indian sustaining tribal relations is subject to penalty under Act Cong. .June 4, 1888, for cutting timber on reservation for speculative purposes. X PETERS. 10 Pet. 1-23, 9 L. 325, DUBOIS v. HEPBURN. Syl. 1 (III, 541). Construction of tax redemption acts. Approved in Hillis v. O'Keefe, 189 Mass. 140, 75 N. E. 148, where complainant claimed land under deed from one of heirs of R., and testified he had been on land and paid taxes assessed in name of heirs of R., evidence is prima facie to show ownership under statute au- thorizing owner to redeem from tax sale; Rogers v. Nichols, 186 Mass. 443, 71 N. E. 951, upholding statute of 1902 providing for redemption from tax sale by tender to collector instead of purchaser at sale, as against purchaser after passage of act for taxes assessed prior to its passage. , Syl. 2 (III, 542). Suit to redeem from tax sale — Tender. Approved in Hillis v. O'Keefe, 189 Mass. 141, 75 N. E. 149, where, in suit to redeem from tax sale, court found that plaintiff's agent offered to pay defendant what was due him on last day allowed for redemption and that defendant refused, tender waived. 10 Pet. 24, 9 L. 333, OWINGS v. TIERMAN. Syl. 1 (III, 542). Contemporaneous motions to docket and dismiss. Approved in Equitable Life Assur. Soe. v. Tolbert, 145 Fed. 339, where, owing to delay in payment of docket fee, writ of error, 153 Notes on U. S. Keports. 10 Pet. 25-256 though lodged with clerk in due time, was not filed until five days after return day, motion to dismiss made four months after record filed denied. 10 Pot. 25-57, 9 L. 333, HAEKIS v. ELLIOTT. Syl. 2 (III, 543). Land not appurtenant to land. Approved in Moss v. Chappell, 126 Ga. 202, 54 S. E. 971, construing deed to railroad for railroad purposes. Syl. 3 (III, 543). Highways — Fee remains in land owner. See 101 Am. St. Rep. 117, note. 10 Pet. 58-79, 9 L. 345, TUCKER v. MORELAND. Syl. 4 (III, 545). How infant avoids acts. Approved in Seed v. Jennings, 47 Or. 407, 83 Pac. 873, where father conveyed property to minor son and son reconvcycd same during minority but promptly disaffirmed reconveyance on majority, title after disaffirmance was in son. 10 Pet. 107, 9 L. 363, HOOK v. LINTON. (Ill, 550.) Dismissal where appellant dies. Approved in Brown v. Fletcher, 140 Fed. 645, where after death of complainant in federal equity court representatives do not, within reasonable time, revive suit, defendant may move to dismiss. 10 Pet. 137-159, 9 L. 373, ELLIOTT v. SWARTWOUT. Syl. 3 (III, 553). Recovery of payments — Mistake of law. Approved in Scott v. Ford, 45 Or. 544, 78 Pac. 746, 68 L. R. A. 469, where testator left property to daughter's five children and executor paid sixth to child of deceased child, he cannot recover sum so paid. 10 Pet. 161-176, 9 L. 382, VENTRESS v. SMITH. Syl. 7 (III, 558). Administrator's authority to sell. Approved in dissenting opinion in Thomas v. Provident Life etc. Co., 138 Fed. 369, majority holding where executor applied proceeds of loan raised by mortgage of testator's realty to pay debts of estate', estate bound to repay, though under will executor not authorized to execute mortgage. 10 Pet. 177-256, 9 L. 388, BOONE v. CHILES. Syl. 1 (III, 559). Equity— Presence of necessary parties. Approved in Lynch v. United States, 13 Okl. 156, 73 Pac. 1100, applying rule in suit to annul townsite patent where lots sold to numerous purchasers. Syl. 4 (III, 560). Bona fide purchaser — Grantor's notice. Approved in United States v. Clark, 138 Fed. 299, after entry is confirmed and patent issued, government cannot recover land for 10 Pet. 257-268 Notes on U. S. Reports. 154 fraudulent entry, as against bona fide purchaser; United States v. Detroit etc. Co., 131 Fed. 678, purchasers in good faith, without notice, for value, of title evidenced by receiver's final receipts upon which patents subsequently issue, may defend as bona fide purchasers against suit by government to avoid patents for fraud in procurement of patent. Syl. 6 (III, 561). Title of bona fide purchaser. Approved in Lynch v. United States, 13 Okl. 145, 73 Pac. 1096, applying rule in suit to annul townsite patent where lots sold to innocent purchasers. Syl. 7 (III, 561). Pleading defense of bona fide purchaser. Approved in Johnson v. Georgia Loan etc. Co., 141 Fed. 597, 598, one claiming as bona fide puchaser must allege and prove want of notice and actual payment of purchaser of money independently of re- citals in deed; Bell v. Pleasant, 145 Cal. 414, 104 Am. St. Eep. 61, 78 Pac. 958, in action to cancel deeds, where plaintiff claims under prior unrecorded deed and defendant claims under recorded deed rest- ing upon subsequent recorded deed from plaintiff's granter, under which grantee took no title as such, defendant has burden of proving he is bona fide purchaser; Slaughter v. Coke Co., 34 Tex. Civ. 602, 79 S. W. 865, conveyance reciting that grantor sold all right, title and in- terest in lands transferred to grantor by order of court and contract for deed shows grantee took only title grantor had. Syl. 8 (III, 564). Champerty does not bar action. Approved in Elser v. Village of Gross Point, 223 111. 240, 79 N. E. 30, fact that litigation grows out of champertous contract is no de- fense in collateral proceeding; Robertson v. Cayard, 111 Tenu. 366, 77 S. W. 1059, repeal of champerty act of 1821, by act of 1899, did not bar suit relating to champertous agreement. Syl. 10 (III, 565). Limitations against express trust. Approved in Patterson v. Hewitt, 11 N. M. 42, 66 Pac. 565, 55 L. R. A. C58, applying rule in enforcement of oral trust relating to mining locations. Syl. 14 (III, 567). Equity — Relief under general prayer. Approved in Lockhart v. Leeds, 195 U. S. 437, 49 L. 269, 25 Sup. Ct. 76, in suit to declare mining location by defendant void, and that plaintiff have possession, defendant may be treated as trustee ex male- ficio under prayer for general relief. 10 Pet. 257-268, 9 L. 416, SPRIGG v. BANK OF MOUNT PLEASANT. Syl. 3 (III, 568). Estoppel of principal to show he is surety. Approved in Merchants' Nat. Bank v. Murphy, 125 Iowa, 609, 101 N. W. 442, applying rule where surety agreed that whatever his re- lation was in fact, he should, as between himself and the creditor, be regarded as principal. 155 Notes on U. S. Reports. 10 Pet. 298-365 10 Pet. 298-302, 9 L. 432, GILMAN v. RIVES. Syl. 2 (III, 572). Judgment on demurrer as res adjudicata. Approved in Board of County Commrs. v. Cross, 12 N. M. 77, 73 Pac. G16, judgment of dismissal on sustaining demurrer passing on material issues involved is bar to second suit; Frye v. Miley, 54 W. Va. 333, 46 S. E. 139, decree dismissing bill on demurrer must show it is not on merits or that it is without prejudice; State v. McEl- downey, 54 W. Va. 701, 47 S. E. 652, applying rule in suit attacking tax sale. 10 Pet. 303-305, 9 L. 434, UNITED STATES v. FERNANDEZ. Syl. 1 (III, 573). Grant of lands in possession of Indians — Cession. Distinguished in Labadie v. United States, 6 Okl. 416, 51 Pac. 671, Indian sustaining tribal relations who cuts timber on reservation for speculative purpo.ses is liable imder Act Cong. June 4, 1888. 10 Pet. 308, 9 L. 435, UNITED STATES v. CHAIRES. Syl. 1 (III, 574). Confirmation of Spanish governor's grant. Cited in Wilson v. Knight, 48 Fla. 200, 37 So. 187, arguendo. 10 Pet. 326-337, 9 L. 442, SMITH v. UNITED STATES. Syl. 2 (III, 575). French treaty protected inchoate titles. Approved in Corkran Oil etc. Co. v. Arnaudet, 111 La. 577, 35 So. 753, following rule. Syl. 5 (III, 576). Private surveys not binding. Approved in United States v. Montana Lumber etc. Co., 196 U. S. 578, 49 L. 605, 25 Sup. Ct. 367, until identification by government survey of odd-numbered sections of railroad grant. United States may recover value of timber cut and removed by railroad or its grantees. 10 Pet. 343-365, 9 L. 448, UNITED STATES v. BRADLEY. Syl. 2 (III, 578). Voluntary bond to United States. Approved in Smith v. United States, 5 Ariz. 64, 45 Pac. 344, where bond of receiver of public moneys was, by direction of President, increased above statutory amount, bond not void on ground of duress; Dudley v. Rice, 119 Wis. 100, 95 N. W. 937, where guardian's bond was conditioned to pay over amount found due on settlement with court or ward, it was enforceable as voluntary bond, though court had no jurisdiction of guardianship proceedings. Syl. 3 (III, 579). Bond good in part. Approved in Potter v. Potter, 43 Or. 153, 72 Pac. 703, contract whereby husband, on payment of sum, agrees to convey to wife con- ditioned that paper is drawn that she release her dower in certain land and he release curtesy in her land, is entire; Probate Court of Central Falls v. Adams, 27 R. I. 99, 60 Atl. 770, bond given by executor 10 Pet. 400-446 Notes on U. S. Keports. 156 who is also residuary legatee, when property conditioned to pay debts and legacies, is not invalidated because it also contains clause re- quiring executor to account; Yost v. Eamey, 103 Va. 120, 48 S. E. 864, where executor's bond contained provision waiving right to dis- charge any liability except in legal tender as provided by repealed statute, bond not void; Osgood v. Central Vermont Ry. Co., 77 Vt. 342, 60 Atl. 139, 70 L. R. A. 930, where lessee of railroad right of way for coalsheds agreed to indemnify defendant for injuries to his> property or servants by negligence of defendant, contract was en- forceable as to indemnity, though statute punishing railroad agent's negligence provided it did not exempt liability for damages; dissent- ing opinion in McBride v. Farrington, 149 Fed. 115, majority holding valid leases by secretary of Chickasaw nation of mining lands, so far as they authorized coal mining for period not exceeding ten years. Syl. 4 (III, 581). Paymaster may act without bond. Approved in Houston v. Estes, 35 Tex. Civ. 104, 79 S. W. 851, though manner of qualification of policeman is not in strict con- formity with law, he is an officer de jure where he has taken oath and given bond which has been accepted. 10 Pet. 400-406, 9 L. 470, HAGAN v. LUCAS. Syl. 1 (III, 584). First levy gives jurisdiction. Approved in In re Porterfield, 138 Fed. 197, where trust deed from bankrupt to wife was recorded less than four months prior to state court suit, but more than four months prior to bankruptcy proceed- ings, which were brought within four months of state suit, and all parties to bankruptcy proceedings, state law relating to preferences not available to creditors; Burnham etc. Co. v. Dickson, 5 Okl. 117, 47 Pac. 1061, where execution issued out of probate court and later, on same day, attachment issued out of district court of same county, latter, having been first served, has priority. Syl. 2 (III, 589). Federal levy after state execution. Approved in Hearn v. Ayers, 77 Ark. 504, 92 S. W. 770, where property seized by sheriff on replevin was adjudged to belong to plaintiii", sheriff could not thereafter question plaintiff's title. 10 Pet. 412-446, 9 L. 475, ELLICOTT v. PEARL. Syl. 2 (III, 591). Witnesses — Impeachment and corroboration by declarations. Approved in Burks v. State, 78 Ark. 274, 93 S. W. 984, where wit- ness denied making statements contradicting testimony and evidence of contradictory statements admitted, former statements supporting testimony inadmissible in absence of proof of change of circum- stances; Legere v. State, 111 Tenn. 375, 77 S. W. 1061, where wit- ness in murder prosecution had made prior statements contradicting those made at trial, evidence that subsequent to those statements and 157 Notes on U. S. Reports. 10 Pet. 449-506 while negotiating for turning state's evidence for same murder he had made statements corroborative of those made at trial is inad- missible. Syl. 3 (III, 591), Discrediting own witness. Approved in dissenting opinion in People v. Elco, 131 Mich. 531, 94 N. W. 1070, majority holding prosecution in criminal case may show contradictory statements of hostile witness, whom law compels it to call, for purpose of affecting his credibility. Syl. 6 (m, 593). Entrance under color of title — Boundaries. Approved in Scott v. Mineral Development Co., 130 Fed. 501, 503, 506, 64 C. C. A. 659, continuation of possession of part of tract under deed of whole tract, for statutory period gives title to whole, though title obtained through separate conveyances of different parts of tract; United States v. Roth, 2 Alaska, 264, holding possession of homestead entryman under public land laws coextensive with his boundaries and to extend over shore lands of navigable gtream abutting thereon; Haggart v. Ranney, 73 Ark. 353, 84 S. W. 706, actual possession of tract under instrument giving color of title to it and to adjacent tract does not draw to it constructive possession of adjacent tract as against true owner. 10 Pet. 449-479, 9 L. 490, VOORHEES v. JACKSOX EX DEM. BANK OP THE UNITED STATES. Syl. 2 (III, 595). Conclusiveness of confirmation of judicial sale. Approved in Salemonson v. Thompson, 13 N. D. 194, 101 N. W. 323, judgment regularly rendered by court of competent jurisdiction is conclusive of debt and amount in action to try title by judgment creditor against alleged fraudulent grantee of debtor; Threadgill v. Colcord, 16 Okl. 471, 85 Pac. 710, applying rule to receiver's sale; dissenting opinion, Dye v. Crary, 12 N. M. 479, 78 Pac. 536, majority holding property levied on under alias attachment gives no jurisdic- tion over attachment; Clark v. Eltinge, 38 Wash. 3S2, 107 Am. St. Rep. 858, 80 Pac. 558, arguendo. Distinguished in Dye v. Crary, 12 N. M. 471, 474, 78 Pac. 533, 534, property levied on under alias attachment gives no jurisdiction over property. Syl. 4 (III, 602). Judgment without jurisdiction is void. Approved in Harrigan v. Gilchrist, 121 Wis. 228, 99 N. W. 934, determining power of court which had appointed receiver for corpora- tion who had lost some of property to make parties participating in loss defendants in pending suit and determine their liability. 10 Pet. 497-506, 9 L. 508, BROWN v. SWANN. Syl. 2 (III, 608). Requisite averments of bill of discovery. Approved in Larkey v. Gardner, 105 Va. 721, 54 S. E. SS7, follow- ing rule. 10 Pet 507-595 Notes on U. S. Eeports. 158 10 Pet. 507-520, 9 L. 512, COLUMBIA INS. CO. v. LAWEENCE. Syl. 8 (III, 613). Insurance — Fire caused by negligence. Approved in Beavers v. Security etc. Ins. Co., 76 Ark. 598, 90 S, W. 14, where policy did not exempt liability for loss of insured's negli- gence, it was error to charge that insurer not liable if loss occurred through negligence of insured or was result of his own wrong. 10 Pet. 524-531, 9 L. 519, DENN v. EEID. Syl. 1 (III, 616). Construction of unambiguous statute. Approved in Farmers' Loan etc. Co. v. Sioux Falls, 131 Fed. 908, construing grant of franchise to water company to use city streets; Kaufman v. Carter, 67 S. C. 318, 45 S. E. 214, Eev. St. 1893, § 1432, relating to posting up of names of partners in mercantile partnership applies only to limited partnerships. 10 Pet. 532-571, 9 L. 522, PETEE v. BEVEELY. Syl. 1 (III, 617). Each executor liable for own acts. Approved in Cheever v. Ellis, 144 Mich. 484, 108 N. "W. 392, apply- ing rule where loss occurred through fault of agent appointed by both executors, but one of them assumed through agent sole con- trol of properties. Syl. 5 (III, 618). Extinction of power by death of one trustee. Approved in Haggart v. Eanney, 73 Ark. 348, 84 S. W. 704, power to sell and convey in will to executor named vests legal title in him with power to sell, as trustee under will and not by virtue of appointment by court; Weaver v. Eichards, 144 Mich. 406, 407, 415, 108 N. W. 386, 387, 390, power appointing attorney to sell prop- erty of estate of decedent belonging to signers of power and to distribute proceeds, and reciting that it should be irrevocable and survive, is revoked by death of one grantor before execution. Syl. 8 (III, 620). Note taken for antecedent debt. Approved in Delaney etc. Co. v. The Winnebago, 142 Mich. 91, 105 N. W. 530, where builder's note taken for materials furnished for construction of vessel, but not paid, statutory lien not lost. 10 Pet. 572-582, 9 L. 538, DICKINS v. BEAL. Syl. 4 (III, 622). Notary's testimony as to notice of dishonor. Approved in Schofield v. Palmer, 134 Fed. 755, certificate of notary that he gave notice of dishonor is insufficient evidence thereof. 10 Pet. 583-595, 9 L. 542, WALLINGSFOED v. ALLEN. Syl. 2 (III, 624). Validity of conveyance by husband to wife. Approved in In re Tucker, 131 Fed. 648, transfer of stock by husband to wife as gift by surrendering certificates and causing: new ones to be issued in her name, being void under law of domicile, 159 Notes on U. S. Reports. 10 Pet. 596-738 its rctransfer to him by wife as loan is no basis for claim by her against his bankrupt estate; James v. Gray, 131 Fed. 403, 404, 65 C. C. A. 385, loan made by wife to husband from separate estate is provable as debt against his estate in bankruptcy irrespective of its enforceability under state laws. 10 Pet. 59G-617, 9 L. 547, BRENT v. BANK OF WASHINGTON. Syl. 3 (III, 626). United States bound by equities. , Approved in Mountain Copper Co. v. United States, 142 Fed. 629, applying rule in suit by government as land owner to abate alleged nuisance caused by smelter; Lynch v. United States, 13 Okl. 145, 73 Pac. 1096, applying rule in suit to cancel townsite patent. See 101 Am. St. Rep. 170, note. Syl. 5 (III, 627). Limitation statute bars remedy only. Approved in Brand v. Brand, 116 Ky. 798, 76 S. W. 873, 63 L. R. A. 206, where plaintiff assigned note to A. for collection and de- fendant got judgment in New York on ground of limitations, such judgment no bar to action in Kentucky where different limitations exist. 10 Pet. 662-738, 9 L. 573, NEW ORLEANS v. UNITED STATES. Syl. 1 (III, 628). Dedication without vesting title. Approved in Evans v. Blankenship, 4 Ariz. 316, 39 Pac. 813, apply- ing rule where land platted in recorded map as park. Syl. 2 (III, 628). Accretions follow riparian title. Approved in Missouri v. Nebraska, 196 U. S. 34, 35, 49 L. 375, 25 Sup. Ct. 155, avulsion by Missouri river, middle of whose channel forms boundary line between two states, works no change in boundary but leaves it in center of old channel. Syl. 3 (III, 630). Dedication — Designation on map and user. Approved in German Bank v. Brose, 32 Ind. App. 87, 69 N. E. 303, determining dedication of street by user; Kemp v. Stradley, 134 Mich. 678, 97 N. W. 41, under act authorizing council to construct wharves on public land and lease wharfing privileges, city may leas9 land and authorize lessee to build wharf. Syl. 5 (III, 632). Public common cannot be granted. Approved in Wilkins v. Chicago etc. E. E. Co., 110 Tenn. 450, 75 S. W. 1032, arguendo. XI PETERS. 11 Pet. 41-54, 9 L. 624, EWING v. BUKNET. Syl. 4 (III, 638). Entry under color of title is ouster. Approved in Zerres v. Vanina, 134 Fed. 613, applying rule in eject- ment by relocator; Jasperson v. Scliarnikow, 150 Fed. 573, taking possession and occupancy of vacant land by mere squatter does not work disseisin of true owner; Swope v. Ward, 185 Mo. 325, 84 S. W. 897, where person claiming title to land by adverse possession entered in beginning under claim of ownership with intent to claim land, he is not mere squatter. Syl. 13 (III, 643). Adverse possession — Payment of taxes. Approved in McCaughn v. Young, 85 Miss. 293, 37 So. 842, applying rule to wild land where one paid taxes for long term, used timber thereon and mortgaged same, and offered it for sale to public. 11 Pet. 63-72, 9 L. 633, ALLEN v. HAMMOND. Syl. 1 (III, 644), Eelief against contract made by mistake. Approved in Adams v. Washington Brick etc. Co., 38 Wash. 253, 80 Pac. 449, where lease of clay land made solely for purpose of using clay for brick-making, on exhaustion of clay before expiration of term, lessee could abandon premises. n Pet. 80-85, 9 L. 639, EVANS v. GEE. Syl. 3 (III, 647). Blank indorsement — Order to pay individual. Approved in Leahy v. Haworth, 141 Fed. 860, written assignment on back of promissory note payable to order of payee, signed by such payee, is equivalent of blank indorsement to transfer title to note free from equities; Consterdine v. Moore, 65 Neb. 293, 101 Am. St. Eep. 620, 91 N. W. 399, indorsement on note, "Pay to the order of ... . without recourse," signed by payee, docs not destroy negotiability in hands of bona fide purchaser. 11 Pet. 86-101, 9 L. 642, UNITED STATES v. LEFFLER, Syl. 8 (III, 649). Surety — Signing on condition other signs. Approved in Bunker v. Bunker, 140 N, C. 22, 52 S. E. 239, where, on accounting, claim for costs in prior suit filed as lien on realty belonging to estate payable out of rents by B, and disallowed and final judgment rendered providing that plaintiff recover certain sum and costs of action, and it was paid, judgment was res adjudicata of B. 's liability to pay costs of former suit from assets of estate. [160] 161 Notes on U. S. Reports. 11 Pet. 102-184 11 Pet. 102-lGl, 9 L. G48, CITY OF NEW YORK v. MILN. Syl. 1 (III, 651). Comnieicc — Requiring report as to passengers. Approved in Southern Ry. Co. v. Greensboro etc. Co., 134 Fed. 92, order of state corporation commission directing railroad to place cars loaded with coal shipped from another state on certain track for unloading, as requested by consignee, is void. Syl. 6 (III, 654). State's jurisdiction within its territory. See 101 Am. St. Rep. 159, note. Syl. 7 (HI, 656). Exclusive state police power. Approved in dissenting opinion in Pabst Brewing Co. v. Crenshaw, 198 U. S. 41, 49 L. 935, 25 Sup. Ct. 552, majority upholding Missouri beer inspection act. Syl. 8 (III, 656). State health laws valid. Approved in State v. Hyman, 98 Md. 614, 57 Atl. 8, 64 L. R. A. 637, upholding act of 1902, relating to use of rooms and apartments under sweating system of labor. Syl. 12 (III, 657). Congressional regulation of commerce in states. Apjirovcd in United States v. Union Bridge Co., 143 Fed. 391, upholding 30 Stat. 1153, requiring alteration of bridges over navigable streams on determination by Secretary of War that they obstruct navigation. 11 Pet. 175-184, 9 L. 677, STEAMBOAT ORLEANS v. PHOEBUS. Syl. 2 (III, 660). Admiralty — Accounts between i)art owners. Distinguished in The Emma B., 140 Fed. 771, admiralty court may, as incidental to principal cause of action, decree accounting between owners of vessel, with respect to past earnings in suit for her sale for partition. Syl. 3 (III, 661). Admiralty jurisdiction limited. Approved in The Mary F. Chisholm, 129 Fed. 817, sale by merchant to fishermen, who are about to go on fishing voyage under lay contract, of tobacco, clothing and other articles for personal use, is not maritime transaction. Syl. 8 (III, 664). Federal jurisdiction not conferred by local law. Approved in Jung v. Myer, 11 N. M. 386, 68 Pac. 936, Laws 1901, c. S2, authorizing ajipeals to supreme court from interlocutory orders affecting substantial rights, conflicts with organic act providing that appeals are allowed to supreme court from final decisions in all cases, under rules prescribed by law. 11 11 Pet. 213-650 Notes on U. S. Keports. 162 11 Pet. 213-225, 9 L. 691, WATERS v. THE MERCHANTS' LOUIS- VILLE INS. CO. Syl. 3 (in, 672). Explosion caused by fire — Proximate cause. Approved in Hall v. Insurance Co., 115 Tenn. 517, 92 S. W. 402, ■where policy excepted loss by explosion unless fire ensued, and then for fire only, and goods damaged solely by explosion in adjoining building, caused by fire therein, but without any fire in plaintiff's building, insurer not liable. 11 Pet. 257-350, 9 L. 709, BRISCOE v. THE BANK OF THE COM- MONWEALTH OF KENTUCKY. Syl. 6 (III, 677). Presumption as to state's powers from usage. Approved in State v. Stimpson, 78 Vt. 132, 62 Atl. 17, 1 L. E. A. (N. S.) 1153, upholding prosecutions by information. Syl. 7 (III, 678). State not suable without consent. Approved in Berman v. Minnesota etc. Society, 93 Minn. 127, 100 N. W. 732, Minnesota state agricultural society is department of state and immune from suits for wrongful conduct of servants. 11 Pet. 351-419, 9 L. 746, LIVINGSTON v. STORY. Syl. 2 (III, 680). Matter in abatement raised by plea. Approved in Wetzel etc. Ry. Co. v. Tennis Bros. Co., 145 Fed. 464, where, in action by foreign corporation^ defendant answered after de- murrer overruled, and after replication defendant filed cross-bill and plaintiff answered it, after demurrer overruled, it is too late to plead in abatement plaintiff's alleged disability to sue because it had not complied with state laws. (Ill, 680.) Miscellaneous. Cited in Moore v. Boagni, 111 La. 503, 35 So. 72L 11 Pet. 420-650, 9 L. 773, CHARLES RIVER BRIDGE v. WARREN BRIDGE. Syl. 3 (III, 682). State grants strictly construed. Approved in Blair v. Chicago, 201 U. S. 472, 50 L. 831, 26 Sup. Ct. 427, construing Illinois street railway corporation act of 1865; Kuoxville Water Co. v. Knoxville, 200 U. S. 33, 50 L. 359, 26 Sup. Ct. 224, municipal grant of waterworks franchise does not devest city of power to construct its own waterworks; Manigault v. Springs, 199 U. S. 481, 50 L. 279, 26 Sup. Ct. 127, obligations of agreement to remove existing dam from navigable stream and to allow stream to remain unobstructed, not impaired by subsequent state statute authorizing construction of dam by private persons to drain low- lands; New York v. State Board of Tax Commrs., 199 U. S. 37, 50 L. 75, 25 Sup. Ct. 715, special franchise tax imposed by N. Y. Laws, 1899, c. 712, does not impair obligation of contracts by which right 1C3 Notes on U. S. Reports. 12 Pet. 11-58 to construct and operate street railroads given in consideration of pay- ment of per cent of earnings; Pabst Brewing Co. v. Thorley, 145 Fed. 12C, where lessor obtained permit to build vault under side- walk subject to revocation when space needed for public improve- ments and thereafter leased premises for purpose for which vault necessary, and thereafter vault permit revoked, lessor was liable for breach of covenant; Tillamook "Water Co. v. Tillamook City, 139 Fed. 40G, contract between city and water company, by which latter is granted franchise to lay pipes in streets and furnish inhabitants with water for term, does not bind city not to construct competing plant; Cleveland El. Ry. Co. v. City of Cleveland, 137 Fed. 123, construing city ordinances . as not extending life of street railroad franchises; Green v. Ivey, 45 Fla. 349, 33 So. 714, refusing to enjoin defendant from operating ferry near complainant 's, where latter 's ferry fran- chise not exclusive; Commonwealth v. Boston Terminal Co., 185 Mass. 287, 70 N. E. 127, under Acts 1896, creating terminal company, there was no free grant of state lands below low-water mark; Peru V. Barrett, 100 Me. 217, 109 Am. St. Rep. 494, 60 Atl. 970, 70 L. R. A. 567, where merchant controls land on both sides of river and trans- ports customers free from his warehouse on one side to store on other, he is liable to holder of nearby ferry franchise for profits; Story V. Woolverton, 31 Mont. 354, 355, 78 Pac. 590, act Cong. 1891, grant- ing to Montana section of land of former military reservation to be selected so as to embrace improvements thereon, did not grant right to use of water of stream from which government took water by means of ditch across other lands; dissenting opinion in Houghton St. Ry. Co. V. Laurium Common Council, 135 Mich. 623, 98 N. W. 396, majority construing street-car franchise as authorizing connec- tion with branch line. See 105 Am. St. Rep. 699, note. XII PETERS. 12 Pet. 11-26. 9 L. 980. SWAYZE v. BURKE. Syl. 2 (III, 700). Fraud cognizable in law. Distinguished in Levin v. Northwestern Nat. Ins. Co., 146 Fed. 77, in action at law in federal court on fire policy, award of arbitrators, fixing amount of loss, made according to policy and pleaded by de- fendant, cannot be impeached by plaintiff for fraud. 12 Pet. 32-58, 9 L. 989, BANK OF UNITED STATES v. DANIEL. Syl. 5 (III, 702). Equitable relief against mistake. Approved in Utermehle v. Norment, 197 U. S. 56, 49 L. 662, 25 Sup. Ct. 291, ignorance of rule that party taking benefit of provision in 12 Pet. 59-100 Notes on U. S. Keports, 164 will itt bis favor is estopped to question validity of will, though coupled with ignorance of evidence on which contest based, does not prevent application of rule in absence of fraud; Burk v. Johnson, 146 Fed. 214, refusing to rescind contract assigning territory for promotion of burial associations under copyrighted plan, because of misrepresentation concerning rights under copyright, and that plan was not subject to supervision by state insurance departments; Scott V. Ford, 45 Or. 544, 78 Pac. 746, 68 L. E. A. 469, where will left property to five children and executor paid sixth share to child of one of deceased children, executor cannot recover. 12 Pet. 59-Go, 9 L. 999, BEADSTEEET v. THOMAS. Syl. 1 (III, 705). Waiver of want of allegation of citizenship. Approved in North Jersey etc. Ey. Co. v. Purdy, 142 Fed. 957, where no objection was made in trial court to sufficiency of 'proof to sustain obligation of plaintiff's citizenship for jurisdictional pur- poses, question of want of jurisdiction on that ground not considered on appeal. 12 Pet. 72-83, 9 L. 1004, UNITED STATES v. COOMBS. Syl. 4 (III, 707). Commerce — Eegulation of navigation. Approved in United States v. Union Bridge Co., 143 Fed. 391, upholding 30 Stat. 1153, relating to alteration of bridges over naviga- Lle streams on determination of Secretary of War that they ob- struct navigation. 12 Pet. 91-100, 9 L. 1012, GEOEGETOWN v. ALEXANDRIA CANAL CO. Syl. 4 (III, 710). Abatem'ent of public nuisance. Approved in State v. Louisiana etc. Gravel Eoad Co., 116 Mo. App. 199, 92 S. W. 161, upholding injunction where gravel road company was unlawfully exacting tolls from persons using public highway; Wilkins v. Chicago etc. E. E. Co., 110 Tenn. 463, 75 S. W. 1036, property owners who have no special interest different from that of other inhabitants as to period for which city contracts extend cannot restrain execution of contracts because they are too long; Van Alstyne v. Morrison, 33 Tex. Civ. 672, 77 S. W, 657, arguendo. Syl. 5 (III, 711). Injunction against nuisance. Approved in Conradt v. Miller, 2 Alaska, 436, injunction lies to prevent building of wharves or warehouses by private persons on public highwaj' or navigable streams in front of plaintiff's property, where he shows special injury; West & Severns v. Ponca City Milling Co., 14 Okl. 648, 79 Pac. 101, refusing to enjoin erection of frame building within fire limits. 165 Notes on U. S. Reports. 12 Pet. 143-200 12 Pet. 143, 144, 9 L. 1033, SAECIIET v. UNITED STATES. Syl. 1 (III, 716). Supreme court — Cases appealed to circuit. Approved in Comstock v. Eagleton, 196 U. S. 100, 49 L. 403, 25 Sup. Ct. 210, judgment of supreme court of Oklahoma affirming judgment of lower court on demurrer to petition for false imprisonment can only be reviewed in supreme court on writ of error. 12 Pet. 151-163, 9 L. 1035, ZACHARIE v. FRANKLIN. Syl. 1 (III, 718). Signing by mark. Approved in Loughren v. Bonniwell, 125 Iowa, 520, 106 Am. St. Rep. 319, 101 N. W. 288, upholding sufficiency of subscription to notice by justice of peace with stamp bearing fac-simile of signature; Agurs V. Belcher, 111 La. 380, 100 Am. St. Rep. 485, 35 So. 608, where body of act of sale gave true name, but name at foot of deed signed by mark was written differently by notary, it was notice sufficient to put subsequent purchaser on inquiry. 12 Pet. 164-173, 9 L. 1041, CLARKE v. MATTHEWSON. Syl. 1 (III, 718). Executor as real party in interest. Distinguished in Brown v. Fletcher, 140 Fed. 641, Rev. St. 955, re- lating to revival of actions abated by death of party, has no applica- tion to suits in equity. Syl. 2 (III, 718). Attached jurisdiction — Change in parties. Approved in Kirby v. American Soda etc. Co., 194 U. S. 146, 48 L. 913, 24 Sup. Ct. 619, upholding jurisdiction of circuit court where cross-bill seeks to recover balance of $1,700, due on contract of ex- change, where original bill, dismissed on complainants' motion, asked cancellation of agreement to pay $2,025, in consideration of exchange; O'Connor v. O'Connor, 146 Fed. 997, equity suit in federal court to set aside judgment of dismissal in same court is ancillary to such action, and where defendants named in bill were privies with parties to original action, service may be made on them, though they reside out of district. 12 Pet. 178-200, 9 L. 1046, CLARKE v. WHITE. Syl. 1 (III, 721). Specific performance of personalty contracts. Approved in Kane v. Luckman, 131 Fed. 619, refusing specific per- formance of oral contract for purchase of cows in exchange for land^ where it was indefinite and incomplete. Syl. 4 (III, 722). Setting aside transaction for fraud. Approved in Kessler v. Ensley, 141 Fed. 148, applying rule where land purchased of company by former director, and by corporation of which he was large stockholder from trustees, to whom it had been conveyed under agreement between stockholders and creditors; In re A. L. Robertshaw Mfg. Co., 133 Fed. 5G0, where debtor conveyed 12 Pet. 207-299 Notes on U. S. Reports, 166 property to certain creditors, -with intent to pay debts owing to tlicm, facts that transfer postponed other creditors, as intended, and that creditor aided in such intent, does not invalidate transfer. Syl. 9 (III, 722). Secret agreement on composition with creditors. Approved in Wheeler v, Pettyjohn, 14 Okl. 76, 77, 76 Pac. 119, fol- lowing rule. Syl. 10 (III, 722). Debtor may prefer creditor. Approved in Price v. Winnebago Nat. Bank, 14 Okl. 278, 79 Pac. 108, following rule. 12 Pet. 207-214, 9 L. 1058, ADAMS v. JONES. Syl. 2 (III, 724). Notice to guarantor of future advances. Approved in dissenting opinion in Cowan v. Eoberts, 134 N. C. 426, 101 Am. St. Eep. 845, 46 S. E. 983, 65 L. R. A. 729, majority holding where one signed written guaranty, to be delivered only on condition that it be signed by another and delivered to debtors, who delivered it to creditors without securing other signature, and creditor, having no notice of condition, extended credit on faith of guaranty, guarantor is liable. 12 Pet. 221-233, 9 L. 1063, ROGERS v. BATCHELOR. Syl. 3 (III, 728). Use of firm funds to pay individual debts. Approved in Hier v. Miller, 68 Kan. 265, 75 Pac. 79, 63 L. R. A. 952, where bank cashier undertakes to pay individual debt to de- positor by crediting amount on passbook and permits latter to check out, bank may recover of creditor. 12 Pet. 241-263, 9 L. 1070, JENKINS v. PYE. Syl. 3 (III, 731). Deed to parent valid. Distinguished in Perns v. Chapman, 211 111. 607, 71 N. E. 1110, holdin'g in suit to set aside for undue influence deed from son to father shortly after child comes of age, burden is on father to re- but presumption of improper influence. 12 Pet. 204-299, 9 L. 1079, GALLOWAY v. FINLEY, Syl. 1 (III, 732). Vendee cannot disown vendor's title. Approved in Petraski v, Minzgohr, 144 Mich. 358, 108 N. W. 78, following rule. Syl. 3 (III, 733). Vendee perfecting title reimbursed. Approved in Holloway v. Miller, 84 Miss. 781, 36 So. 533, where vendee, finding title was in United States, retained possession and perfected title in himself without notice to vcndnr, he can only recover sums expended and other damages caused by breach of warranty. 167 Notes ou U. S. Kepoils. 12 Pet. 300-475 12 Pet. 300-338, 9 L. 1093, TOLAND v. SPEAGUE. Syl. 4 (III, 735). Circuit court's process outside district. Approved in American etc. Colony Co. v. Schuler, 34 Tex. Civ. 566, 79 S. W. 374, where foreign corporation acquired lands in Texas, courts of latter cannot forfeit its charter. Syl. 7 (III, 737). Appearance waives service in district. Approved in Iowa etc. Min. Co. v. Bliss, 144 Fed. 449, where alien brought suit in state court against nonresident corporation, suit was removable to federal court by defendant. Syl. 10 (III, 739). Eendition of account does not make stated. Approved in Gillett v. Chavez, 12 N. M. 370, 78 Pac. 73, where statement of affairs of firm made by one of partners, who acted as firm's clerk merely, as basis for future settlement, fact that senior partner retained account without objecting thereto does not render it account stated. 12 Pet. 345-377, 9 L. 1111, HEPBURN v. DUBOIS. Syl. 5 (III, 743). Finding of jury concluded defeated party. Approved in Eureka Co. Bank v. Clark, 130 Fed. 326, 64 C. C. A. 571, finding of fact by court precludes appellate court from weigh- ing evidence for purpose of determining whether findings justified thereby. 12 Pet. 410-471, 9 L. 1137, STROTHER v. LUCAS. Syl. 4 (III, 746). Property rights ou cession. Approved in O'Reilly DeCamara v. Brooke, 135 Fed. 391, exclu- sive franchise to slaughter cattle in Havana granted by Spain is property which cannot be taken away by military governor of Cuba without compensation; Territory v. Delinquent Taxpayers. 12 N. M. 66, 73 Pac. 622, lands embraced in perfect Mexican land grant are taxable though grant submitted to confirmation by court of private land claims and patent not yet issued. Syl. 7 (III, 747). Grant evidences own validity. Approved in McGuire v. Blount, 199 U. S. 146, 50 L. 129, 26 Sup. Ct. 1, judicial sale had during Spanish control of Florida not defeated by technical objections, where sale had been confirmed as sufficient by land title commissioners. 12 Pet. 472-475, 9 L. 1161, POULTNEY v. CITY OF LA FAYETTE. (Ill, 751.) Miscellaneous. Cited in Meyers v. United States, 5 Okl. 185, 48 Pac. 189, as to power of Land Department to promulgate rule for reopening of case on equitable grounds. 12 Pet. 488-653 Notes on U. S. Eeports, 168 12 Pet. 488-496, 9 L. 1167, EX PARTE SIBBALB v. UNITED STATES. Syl. 3 (III, 755). Correction of judgment after term. Approved in King v. Davis, 137 Fed. 227, federal law court cannot vacate judgment of former term founded on false, but apparently valid, return of service of process; United States v. Four Lorgnette Holders, 132 Fed. 565, judgment of forfeiture for attempt to defraud customs laws cannot be vacated on petition filed after term, to per- mit importer to defend on ground of irregularities in procedure; dissenting opinion in State v. Marsh, 134 N. C. 200, 47 S. E. 12, 67 L. R. A. 179, majority holding, where on appeal conviction reversed because of omission of material allegation in indictment as contained in record, and it subsequently appeared that allegation was omitted by misprision of clerk, supreme court could, after term, grant cer- tiorari to correct record, and reset case. Syl. 5 (III, 756). Execution of mandate of appellate court. Approved in Montana Min. Co. v. St. Louis etc. Co., 147 Fed. 903, where circuit court of -appeals affirmed judgment for plaintiff, but subsequently on cross-writ reversed judgment on different questions and ordered new trial, questions determined on two appeals will not be reconsidered on error from second judgment; American etc. Co. v. Sample, 136 Fed. 858, where circuit court of appeals has adjudged in- valid claims of patent in issue in infringement suit, reversing circuit court, and ordering decree in conformity with opinion, circuit court cannot grant rehearing on ground that complainant has filed disclaimer in patent office; State v. District Court, 32 Mont. 24, 79 Pac. 411, where order taxing costs in favor of plaintiff and included in judg- ment did not include certain item, trial court could not, after affirm- ance on appeal, make order taxing such costs. See 98 Am. St. Kep. 904, note. Syl. 7 (III, 758). Construction of appellate mandate. See 98 Am. St. Rep. 905, note. (Ill, 753.) Miscellaneous. Cited in dissenting opinion State v. Marsh, 134 N. C. 192, 47 S. E. 9, 67 L. R. A. 179, on point that when government litigates with citizen, it has no superior rights by virtue of sovereignty. 12 Pet. 524-653, 9 L. 1181, KENDALL v. UNITED STATES. Syl. 2 (III, 764). Mandamus to compel ministerial duty. Approved in Traynor v. Beckham, 116 Ky. 24, 74 S. W. 1108, granting mandamus to compel governor to issue commission to police judge legally appointed by city council; McDaid v. Territory, 1 Okl. 97, 30 Pac. 440, upholding territorial district court's jurisdiction to issue mandamus compelling townsite trustees to issue deed to party they have decided is entitled to same; Clement v. Graham, 78 Vt. 169 Notes on U. S. Reports. 12 Pet. 524-653 319, 63 Atl. 155, granting mandamus to compel state auditor of ac- counts to permit inspection of record. See 98 Am. St. Rep. 874, note. Syl. 5 (III, 768). Mandamus defined. Approved in dissenting opinion in Henry v. State, 87 Miss. 95, 39 So. 884, arguendo. S}'!. 6 (III, 768). Mandamus to enforce right — Adequacy of remedies. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 95.5, 67 L. R. A. 761, 66 C. C. A, 55, granting mandamus to command circuit judge to vacate order staying proceedings pending determination of state court appeals; State v. United States Exp. Co., 95 Minn. 444, 104 N. W. 557, denying mandamus to compel express company to re- ceive package from one engaged in lottery scheme; In re Epley, 10 Okl. 644, 64 Pac. 21, judgment granting peremptory mandamus is re- viewable on appeal same as any other law judgment; Rider v. Brown, 1 Okl. 247, 32 Pac. 342, better practice is for writ of mandamus to issue in name of territory on relation of party interested. See 98 Am. St. Rep. 865, note. Syl. 13 (III, 770). Supreme court's mandamus to inferior court. Approved in Ex parte Moran, 144 Fed. 590, upholding jurisdiction of circuit court of appeals to issue habeas corpus to determine power of Oklahoma court to imprison one convicted of capital crime; Bar- ber Asphalt etc. Co. v. Morris, 132 Fed. 952, 67 L. R. A. 701, 60 C. C. A. 55, granting mandamus to compel circuit judge to vacate order staying proceedings pending determination of state court appeals. Syl. 15 (III, 770). Requisites of jurisdiction over person. Approved in Kibbler v. St. Louis etc. R. Co., 147 Fed. 880, foreign corporation is not suable in federal court in state unless it does business in some one of the counties within territorial jurisdiction of such court. Syl. 16 (III, 770). District of Columbia court issues mandamus. Approved in McDaid v. Territory, 1 Okl. 97, 30 Pac. 440, upholding territorial district court's jurisdiction to issue mandamus to compel townsite trustees to execute deed to party whom they have decided is entitled to same. Syl. 19 (III, 772). Construction of adopted statutes. Approved in Ex parte Anderson, 46 Tex. Cr. 399, 81 S. W. 987, city court has no jurisdiction to try accused for violation of state penal statute. Syl. 20 (III, 772). Federal court's mandamus to executive ofiicers. Approved in United States v. Lake Shore etc. Ry. Co., i97 U. S. 542, 49 L. 871, 25 Sup. Ct. 538, circuit court has no jurisdiction over original proceeding by mandamus to compel interstate carrier to make report which interstate commerce commission is authorized by commerce act to require. 12 Pet. 657-754 Notes on U. S. Reports. 170 (III, 703.) Miscellaneous. Cited in dissenting opinion in Tampa Waterworks Co. v. Tampa, 199 U. S. 247, 50 L. 175, 26 Sup. Ct. 23, majority holding provision of state constitution giving legislature full .power to correct abuses and jirevent excessive charges is self -execut- ing to extent that contracts made after its passage are subject to possibility of exercise of such power. 12 Pet. 657-754, 9 L. 1233, RHODE ISLAND v. MASSACHUSETTS. Syl. 1 (in, 774), Jurisdiction defined. Approved in Blake v. Nesbet, 144 Fed. 283, fact that defendant claims as his own money admitted to have been paid to him by bankrupt within four months of bankruptcy, on ground that payment was made to him as creditor, does not affect bankruptcy court's juris- diction in suit by trustee to recover money as preference to issue injunction against disposing of same; Franklin Union v. People, 220 111. 366, 110 Am. St. Eep. 248, 77 N. E. 180, it is no defense to con- tempt proceedings for violation of injunction that injunction is broader than justified by bill; O'Brien v. People, 216 111. 363, 108 Am. St. Rep. 219, 75 N. E. 112, defects in bill to enjoin strikers does not affect jurisdiction when defendants served but did not appear; Parker v. Lynch, 7 Okl. 647, 56 Pac. 1087, upholding jurisdiction to declare resulting trust in land acquired by homestead entry. Syl. 3 (III, 776). Appearance waives defect in service. Approved in Alabama etc. School v. Addler, 144 Ala, 557, 42 So. 117, under constitutional provision that state cannot be sued, judg- ment against Alabama Girls' Industrial School is against state, and void for want of jurisdiction, and failure of defendant to claim im- munity is not waiver. Syl. 10 (III, 778). Constitution — Exceptions not implied. Approved in Ex parte Anderson, 46 Tex. Cr. 380, 81 S. W. 976, city court has no jurisdiction to try accused for alleged violation of state penal statute. Syl. 11 (III, 778). Constitutional construction — Contemporaneous history. Approved in Ex parte Anderson, 46 Tex. Cr. 399, 81 S. W. 987, city court has no jurisdiction to try accused for alleged violation of state penal statute. Syl. 14 (III, 778). Jurisdiction to determine state boundary. Approved in Missouri v. Illinois, 200 U. S. 520, 50 L. 578, 26 Sup. Ct. 268, determining jurisdiction of supreme court to enjoin discharge of sewage of Chicago through canal into Mississippi on complaint of Missouri that water supply of its inhabitants contaminated. XIII PETERS. 13 Pet. 6-16, 10 L. 33, WHITING v. BANK OF UNITED STATES. Syl. 7 (III, 785). No bill of review after five years. Approved in Jorgensen v. Young, 136 Fed. 381, 69 C. C. A. 222, bill of review in equity court not filed until after lapse of two years from judgment in original suit, and until long after expiration of time to appeal is too late. 13 Pet. 26-44, 10 L. 42, SMITH v. RICHARDS. Syl. 2 (III, 7S9). Contract — Rescission — False representations. Approved in Kcll v. Trenchard, 142 Fed. 23, applying rule whore plaintiff purchased timber land under contract stating timber to be not less than certain amount, and on estimation of amount defend- ant's agent by false representations as to boundaries deceived plain- tiff as to amount; Kimber v. Young, 337 Fed. 748, 70 C. C. A. 178, determining sufficiency of allegations in action for deceit in sale of bonds. 13 Pet. 45-64, 10 L. 51, ROSS v. DUVAL. Syl. 1 (III, 791). Applying state practice — Statute. Distinguished in King v. Davis, 137 Fed. 239, Va. Code 1SS7, § 3566, providing lis pendens shall not affect bona fide purchaser, un- less memorandum filed with clerk of court in county where land lies does not apply to federal courts. Syl. 2 (III, 791). Burden of showing statutory exception. Approved in Bealmear v. Hutchins, 134 Fed. 266 (reversed 148 Fed. 545), under Rev. St. N. C. 1837, c. 42, § 1. one claiming entry of Cherokee lands has burden of showing on face of grant itself that land was at time vacant and unsurveyed. Distinguished in Bealmear v. Hutcliins, 148 Fed. 558 (reversing 134 Fed. 257), under Pub. Laws N. C. 1835, p. 7, c. 6, as amended in 1837, grant of Cherokee lands issued pursuant to authority of such law is presumptively of vacant and unsurveyed lands, and sufficient to maintain ejectment. Syl. 3 (III, 791). Bar of judgment bars execution. Approved in Miller v. Melone, 11 Old. 251, 67 Pac. 482, 56 L. R. A. 620, creditor's bill seeking to set aside fraudulent sale is barred where plaintiff's judgment becomes dormant pending suit. Syl. 6 (III, 792). Limitations — Pre-existing causes. See 111 Am. St. Rep. 461, note. [171] 13 Pet. 65-122 Notes on U. S. Eeports. 172 13 Pet. 65-80, 10 L. 61, ANDEEWS v. POND. Syl. 2 (III, 793). Usury — Charge for exchange as. Approved in In re Troy & Cohoes Shirt Co., 136 Ped. 427, arguendo. Syl. 5 (III, 794). Contracts — Lex loci governs. Approved in Easton v. Geo. Wostenholm & Son, 137 Fed. 530, 70 C. C. A. 108, where firm doing business in California and Costa Eica bought goods in England through purchasing agent, under agreement that agent in England should advance price and expenses for com- mission, agent's contract governed by English law; Nashua Sav. Bank v. Sayles, 184 Mass, 522, 100 Am. St. Eep. 573, 69 N. E. 310, arguendo. Syl. 7 (III, 795). Law governing interest in contracts. Approved in Davis v. Tandy, 107 Mo. App. 449, 81 S. W. 460, where note is usurious under laws of state where made and also where payable, and under laws of latter state mortgage securing it is void for usury, but is not void by laws of former state, mortgage is en- forceable in latter state under limitations placed on it in former. 13 Pet. 89-106, 10 L. 72, BRADLEY v. WASHINGTON ETC. STEAM PACKET CO. Syl. 1 (III, 799). Parol to explain writing. Approved in Simpson v. United States, 199 U. S. 399, 50 L. 246, 26 Sup. Ct. 54, construing contract to furnish beef to interior army posts in Cuba; Guaranty Trust Co. v. Atlantic etc. E. Co., 138 Fed. 521, affirming 132 Fed. 71, construing railroad mortgage giving lien on after-acquired property; Darnell v. Lafferty, 113 Mo. App. 303, 88 S. W. 791, memorandum evidencing sale of personalty described as "ten head of cows and heifers" is sufficiently definite in description of subject matter to satisfy statute of frauds; Humphrey v. Tinikon Carriage Co., 12 Old. 432, 75 Pac. 534, where complaint sets out order for goods and alleges acceptance and shipment, defendant may show by parol that order was not accepted on terms proposed. 13 Pet. 107-122, 10 L. 81, BANK OF UNITED STATES v. LEE. Syl. 5 (III, 802). Estoppel of wife by silence. Approved in Mutual Eeserve Fund etc. Ins. Co. v. Scott, 136 N. C. 160, 48 S. E. 583, defendant in default judgment cannot set it aside for fraud, consisting of false allegations and proofs, which were known to him at time judgment was rendered. Syl. 6 (III, 802). Sales of personalty valid where made. Approved in Cooper v. Philadelphia Worsted Co. (Lees v. Harding etc. Co.), 68 N. J. Eq. 631, 60 Atl. 356, Public Laws 1889, p. 421, relating to conditional sales, does not apply to contracts made and to be performed in another state with reference to chattels situated there betTreen president of that state and a New Jersey corporation; 173 Notes on U. S. Reports. 13 Pet. 123-194 Greenville Xat. Bk. v. Evans-Snydcr-Buell Co., 9 Okl. 3G9, 60 Pac. 254, mortgage executed in another state on property situated there and recorded according to laws of such state is valid after such prop- erty is brought into Oklahoma without being filed. 13 Pet. 123-127, 10 L. 89, BANK OF UNITED STATES v. PETER. S.vl. 1 (III, 803). Junior encumbrancer paying prior. See 99 Am. St. Rep. 521, note. 13 Pet. 136-152, 10 L. 95, WALLACE v. McCONNELL. Syl. 4 (III, 804). Concurrent jurisdiction — Priorities. Approved in Louisville Trust Co. v. Knott, 130 Fed. 825, 65 C. C. A. 158, where corporation's franchise had expired and assets delivered to liquidator, and minority stockholders filed bill in state court to ascertain assets and liabilities and sell and distribute assets, and ma- jority appeared in such suit, and pending suit creditor had federal receiver appointed, state court entitled to priority though receiver took assets; Logan County v. McKinlcy etc. Trust Co., 70 Neb. 405, 97 N. \V. 044, where foreclosure decree erroneously denies to owner of equity of redemption the time to redeem allowed by law, he can- not obtnined modification by objecting to confirmation of sale. 13 Pet. 181-194, 10 L. 115, STOKES v. SALTOXSTALL. Syl. 1 (III, 810). Care required of carrier of i)assengers. Approved in Gavin v. Southern Pac. Co., 136 Fed. 593, 69 C. C. A. 366, in action by mail clerk for injuries caused by derailment due to washout, it is error to charge that defendant only required to use such care as reasonably careful man would exercise in management of dangerous business; The Oregon, 133 Fed. 617, 6S C. C. A. 603, giving damages to passengers for failure of Nome steamer to furnish sufficient provisions and to be kept clean; Fillingham v. St. Louis Transit Co., 102 Mo. App. 584, 77 S. W. 317, upholding charge that carrier is held to utmost care and vigilance, accompanied by recital of particular facts which will sustain recovery; Taillon v. Mears, 29 Mont. 174, 74 Pac. 425, under Civ. Code, § 2790, carrier is liable for injuries to passenger caused by negligent acts of his servant, even though the acts complained of were not within scope of servant's em- ployment; Williams v. Spokane Falls etc. Ry. Co., 39 Wash. 89, 80 Pac. 1103, applying rule where in making up train coupler gave way and cars ran into mail car, in which plaintiff was working, and in- jured him. Distinguished in Stanley v. Steele, 77 Conn. 693, 60 Atl. 641, 69 L. R. A. 561, livery-stable keeper is not held to such degree of care with reference to defects in vehicles as common carrier of passenger. Syl. 3 (III, 812). Carriers — Presumptions from accident. Approved in Southern Pac. Co. v. Gavin, 144 Fed. 351, following rule; Cincinnati etc. Ry. Co. v. South Fork Goal Co., 139 Fed. 533, 13 Pet. 195-204 Notes on U. S. Reports, 174 where as result of rear end collision oil cars telescoped and sparks from engine started fire, which burned lumber piled on right of way, presumed that collision due to negligence in operation of trains; Burr V. Knickerbocker etc. Co., 132 Fed. 249, 65 C. C. A. 554, where tug moving schooner from dock to wider part of channel, to be there turned and headed for sea, ran aground on calm day with moderate tide, prima facie case of negligence shown; Denver Con. Tramway Co. V. Rush, 19 Colo. App. 73, 78, 73 Pac. 664, 666, applying principle where passenger injured while alighting from car because of sud- den starting of car; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 9, 105 Am. St. Rep. 558, 84 S. W. 28, in action by street-car passen- ger, showing that car came to sudden stop and passenger was thrown from his seat and injured, made prima facie case; St. Louis etc. Ry. Co. V. Parks, 97 Tex. 135, 76 S. W. 742, in action for injuries to pas- senger, when carrier introduces evidence to show it has used all proper care to avoid accident, charge that fact of injury is prima facie evidence of negligence which defendant may rebut by show- ing due care is improper; Firebough v. Seattle Elec. Co., 40 Wash. 662, 82 Pac. 997, 2 L. R. A. (N. S.) 836, applying rule where street- car passenger injured on jumping out when controller blew up. See 113 Am. St. Rep. 992, 1021, note. Syl. 4 (III, 815). Negligence — Acts in apprehension of injury. Approved in Omaha Water Co. v. Schamel, 147 Fed. 506, where fire started through negligence of defendants ' employee and flames shut off stairs, though some persons ran through them to stairs, plaintiff not negligent in jumping from window. Distinguished in Chretien v. New Orleans Ry. Co., 113 La. 766, 104 Am. St. Rep. 519, 37 So. 718, where decedent was passenger on car and wire fell and struck car and loud explosion occurred, scaring decedent so that he jumped olf and was killed, carrier is not liable, neither car nor other passengers being injured. 13 Pet. 195-204, 10 L. 123, CLARK v. SMITH. Syl. 2 (III, 817). Administering state law creating property rights. Approved in Mathews S. Co. v. Mathews, 148 Fed. 493, Rev. Laws Mass., c. 159, § 3, cl. 7, providing that supreme and superior courts shall have jurisdiction in equity of creditors ' suits to reach property of debtor which cannot be attached or executed upon at law, is not enforceable in federal courts; Ames Realty Co. v. Big Indian etc. Co., 146 Fed. 174, 175, 176, applying rule to equity suit where under Mon- tana Code in action to protect water rights plaintiff may make any or all jjcrsons who have diverted water from same stream parties; United States Min. Co. v. Lawson, 134 Fed. 771, 67 C. C. A. 587, remedy given by Utah statute authorizing suit to quiet title without previous adjudication of title in law action, and without reference to pos- session, is enforceable in federal court. 175 Notes on U. S. Rexjorta. 13 Pet. 209-262 Distinguished in Illinois Life Ins. Co. v. Newman, 141 Fed. 453, refusing to enjoin collection of state tax on ground of its illegality alone, though state authorized such action. 13 Pet. 209-224, 10 L. 129, STEIN v. BOWMAN. Syl. 7 (III, 822). Wife as witness against husband. Approved in Brock v. State, 44 Tex. Cr. 342, 100 Am. St. Rep. 859, 71 S. W. 22, 60 L. R. A. 465, wife is incompetent witness against husband in prosecution for rape though no objection raised by hus- band. Syl. 9 (iri, 823). Deposition of absent witness. Approved in Toledo Traction Co. v. Cameron, 137 Fed. 60, 65, 69 C. C. A. 28, permitting reading of testimony of witness given on former trial where he is without district and more than one hundred miles distant from place of trial. 13 Pet. 230-262, 10 L. 138, EX PARTE HEXNEN. Syl. 2 (III, 824). Removal of officers at pleasure. Approved in Hartigan v. United States, 196 U. S. 174, 49 L. 436, 25 Sup. Ct. 204, West Point cadet may be dismissed summarily by President; Cole v. Territory of Arizona, 5 Ariz. 141, 48 Pac. 218, territorial treasurer a])pointed by the governor after the adoption of Rev. St., par. 3049, may be removed at any time; State v. Maroney, 191 Mo. 551, 90 S. W. 147, under Laws 1903, p. 170, election commis- sioners cannot remove judge or clerk without charges and notice thereof. Distinguished in Christy v. City of Kingfisher, 13 Okl. 593, 76 Pac. 138, under statute, marshal of city of first class cannot be re- moved for cause without notice of charges. Syl. 4 (III, 826). Discretion to remove officer — Grounds. Approved in W'ard v. Board of Regents, 138 Fed. 378, where act incorporating board of regents of college authorized board to remove professors whenever interests of college required, in absence of fraud regents not liable in damages for discharging professor before ter- mination of contract of employment; dissenting opinion in Mial v. Ellington, 134 N. C. 177, 46 S. E. 976, 65 L. R. A. G97, majority hold- ing officer appointed for a definite time to public office has no vested interest therein or contract right thereto. Distinguished in Mial v. Ellington, 134 U. S. 142, 46 S. E. 965, 65 L. R. A. 697, an officer appointed for a definite time to public office has no vested interest therein or contract right thereto. Syl. 5 (III, 826). Officers — Appointment of successor is removal. Distinguished in Board of Education v. Territory, 12 Okl. 301, 70 Pac. 797, appointment of new commission to locate site for normal school under act of 1901, after time for appointment of commissioB had expired, is void. 13 Pet. 279-330 Notes on U. S. Eeports, 176 13 Pet. 279-291, 10 L. 161, EX PAETE HOYT. Syl. 1 (III, 829). Mandamus to compel judgment. Approved in Cattermole v. Ionia Circuit Judge, 136 Mich. 280, 99 N. W. 4, mandamus does not lie to review the action of circuit judge in quashing a writ of capias ad respondendum and to compel the setting aside of the order. Syl. 2 (III, 829). Mandamus to correct erroneous inferior judg- ment. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 955, 67 L. R. A. 761, 66 C. C. A. 55, upholding jurisdiction of circuit court of appeals to grant mandamus to compel circuit court to vacate order staying proceedings pending state court appeals. See 98 Am. St. Eep. 892, note. 13 Pet. 294-301, 10 L. 168, VAN NESS v. HYATT. Syl. 2 (III, 830.) Mortgage vests legal title in mortgagee. Approved in Lefmann v. Brill, 142 Fed. 48, wife who recovered de- cree against husband in suit for maintenance which awarded her specific property, including realty, upon which husband had prior to suit executed mortgage of his interest, cannot avoid mortgage on ground that it was made to defeat claim for maintenance. 13 Pet. 312-330, 10 L. 177, McELMOYLE v. COHEN. Syl. 3 (III, 832). No execution on foreign judgments. Approved in Lamb v. Powder Eiv. etc. Co., 132 Fed. 440, 67 L. R. A. 558, 65 C. C. A. 570, holding void Colorado act of 1895, as amended in 1899, prescribing limitation for actions on foreign judgments, as applied to action on foreign judgment based on contract and rendered prior to passage of act on cause of action, accruing more than six years prior thereto; In re Culp, 2 Cal. App. 82, 83 Pac. 94, judgment of sisfrer state giving petitioner in habeas corpus right to custody of child cannot be enforced in habeas corpus proceedings for possession of child. See 103 Am. St. Rep. 312, 313, note. Syl. 6 (III, 835). Limitations governed by lex fori. Approved in Rankin v. Barton, 69 Kan. 632, 77 Pac. 532, an ac- tion to enforce the individual liability of a stockholder in a national bank is governed by statute of limitations of state where action is brought. Syl. 7 (III, 837). Limitation on action on foreign judgments. Approved in Lamb v. Powder Riv. etc. Co., 132 Fed. 438, 67 L. R. A. 558, 65 C. C. A. 570, holding void Colorado act of 1895 as amended by act of 1899, prescribing limitation for actions on foreign judg- ments, as applied to action on foreign judgment based on contract and rendered prior to passage of act on cause of action which accrued more than six years prior thereto; Terry y. Heisen, 115 La. 1083, 40 177 Notes on U. S. Eeports. 13 Pet. 359-408 So. 4G5, upliokling article 233 of Constitution of 1898, establishing prescription of three years against actions to annul tax sales. Syl. 8 (III, 837). Foreign judgment — Priority in marshaling assets. Approved in Murray v. Farrell, 2 Alaska, 3G3, where one became indebted in Montana and before debt barred he removed to Alaska, in action on debt in Alaska, limitation statutes of that territory govern. 13 Pet. 359-377, 10 L. 200, STORY v. LIVINGSTON. Syl. 1 (III, 840). Exceptions to master's rejwrt. Approved in General Fire Extinguisher Co. v. Lamar, 141 Fed. 355, following rule; Neher v. Armijo, 11 N. M. 83, G6 Pac. 519, applying principle to errors in referee's report. Syl. G (in, 842). Interested persons are necessary parties. Approved in In re E. T. Kenney Co., 136 Fed. 455, beneficial inter- est of assignors in net proceeds of claims assigned to liquidating com- mittee after administering trust, not provable in bankru[»tcy. (Ill, 840.) Miscellaneous. Cited in Brown v. Fletcher, 140 Fed. 648, where cause of action involved in suit in equity has passed by assignment or devise from estate of deceased complainant to another, suit cannot be revived; Ex parte Marks, 136 Fed. 170, 69 C. C. A. 80, where mandate, after appeal, directed trial court to take such further proceedings as according to right and law ought to be had, court could, on ascertaining mistake in computation of judgment, correct error. 13 Pet. 378-380, 10 L. 209, WILCOX v. HUNT. Syl. 5 (III, 844). Contracts — Lex fori governs enforcement. Approved in Supreme Lodge, Knights of Pj'thias v. Meyer, 198 V. S. 517, 49 L. 1149, 25 Sup. Ct. 754, applying rule to question as to existence of relation of pliysician and patient so as to exclude former's testimony; Clark v. Eltinge, 38 Wash. 383, 107 Am. St. Rep. 858, 80 Pac. 559, married woman as debtor is entitled only to those ex- emptions provided by statutes of state of her residence and of place of suit. 13 Pet. 404-408, 10 L. 221, EX PARTE WHITNEY, Syl. 1 (III, 846). Mandamus to compel equity practice. Distinguished in Barber Asphalt etc. Co. v. Morris, 132 Fed. 956, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel circuit court to vacate order staying proceedings pending determination of state court appeals. 12 13 Pet. 309-485 Notes on U. S. Keports. 178 13 Pet. 309-414, 10 L. 223, EMERSON'S HEIES v. HALL. Syl. 2 (III, 848). Claims under private acts. Approved in United States v. Foreman, 5 Okl, 253, 48 Pac. 97, one suing government for recovery of money paid for land on wliich er- roneous entry was canceled need not show surrender of duplicate cer- tificate to Secretary of Interior nor relinquishment of all claims to land. Distinguished in Nutt v. Forsythe, 84 Miss. 219, 36 So. 248, where Congress appropriated a sum of money to the administrator of a de- cedent in payment of a claim of the decedent against the United States, the representatives of deceased heirs are entitled to share with living heirs in the distribution thereof. 13 Pet. 423-435, 10 L. 229, ANTHONY v. BUTLER. Syl. 1 (III, 849). Partner's deed does not bind other. Approved in Runner v. Woitke, 2 Alaska, 395, realty held by mercantile firm cannot be sold by one partner without written au- thority. 13 Pet. 436-458, 10 L. 235, BAGNELL v. BRODERICK. Syl. 8 (III, 853). Patent is conclusive of legal title. Approved in Schurmeier v. Connecticut etc. Ins. Co., 137 Fed. 47, 69 C. C. A. 22, federal court may entertain suit in equity to permit presentation of probate claim after time limited by order of Min- nesota probate court and within eighteen months allowed by stat- ute; Tyee Consol. Min. Co. v. Langstcdt, 13G Fed. 127, 69 C. C. A. 548, as against locator of mining claim there is no disseisin suffi- <-ient to start limitations prior to issuance of patent; Anglo-Amer- ican etc. Co. V. Lombard, 132 Fed. 731, 68 C. C. A. 89, in action at law in federal court to enforce statutory liability of stockholder in Kansas corporation, defendant cannot set off debt from corpora- tion to him; Peyton v. Desmond, 129 Fed. 10, 63 C. C. A. 651, state statute purporting to regulate effect of final receipts issued by United States Land Department cannot withhold from grantees of United States any of incidents of the transfer of government title; Tyee Consol. Min. Co. v. Langstedt, 1 Alaska, 444, ten year stat- ute of limitations begins to run in favor of one in adverse posses- sion of part of mining claim from time of location and not from date of patent; Adams v. Couch, 1 Okl. 29, 26 Pac. 1013, recovery in ejectment on duplicate receipt of register and receiver, not au- thorized by Neb. Code Civ. Proc, § 411. 13 Pet. 464-485, 10 L. 248, BURTON v. SMITH. Syl. 2 (III, 856). Sale of reversion to satisfy decedent's debt. See 112 Am. St, Rep. 1022, note. 179 Notes on U. S. Reports. 13 Pet, 486-518 13 Pet. 48G 497, 10 L. 258, MEREDITH v. UNITED STATES. Syl. 1 (III, 857). Debt for unpaid duties. Approved in United States v. National Fibre Board Co., 133 Fed. 597, upholding jurisdiction of district court over action to recover duties due from importer, which, through accident, mistake or fraud have not been paid. Syl. 3 (III, 857). Duties accrue on arrival of goods. Approved in United States v. Ed. S. Hartwell L. Co., 142 Fed. 436, where merchandise was imported before tariff of 1897 went into effect, and entry tendered before importation complete was re- jected and not renewed until act became operative, it was gov- erned by section 33 of said act. 13 Pet. 498-518, 10 L. 264, WILCOX v. JACKSON ex dcm. Mc- CONNELL. Syl. 1 (III, 858). Judgment binding till reversed. Approved in United States v. Praeger, 149 Fed. 485, whore a civilian was subpoenaed to testify before court-martial and refused to answer because answers might tend to incriminate him, decision of court that questions were proper is not conclusive on civil courts of question whether witness was guilty of contempt in refusing to answer. Syl. 3 (III, 8C0). Land officer's decision conclusive. Distinguished in De Laittre v. Board of Commissioners, 149 Fed. 804, under Oregon statutes prior to issuance of deed for school lands, state land board may, on receiving information of fraud in application for purchase, institute hearing. Syl. 5 (III, 861). President acts through departments. Approved in United States v. Tully, 140 Fed. 901, lands occupied but without limits of lands reserved for Missoula ^Military Reserva- tion by executive order, are not within such reservation; Behrends V. Goldsteen, 1 Alaska, 524, acts of Secretary of the Navy in re- serving parts of public domain constitute valid reservation so that discovery of mineral within reservation will not sustain mining loca- tion. Syl. 6 (III, 862). Legally appropriated lands severed. Approved in Scott v. Carew, 196 U. S. 109, 112, 49 L. 405, 406, 407, 25 Sup. Ct. 193, right of pre-emption given by act of 1826 did not extend to lands which had been appropriated for military post until such post was abandoned; United States v. Oregon etc. Co., 143 Fed. 771, railroad land grant of 1866 did not embrace land which at time of grant was subject to live homestead entry, though such entry relinquished prior to filing of map of definite location; Winters v. United States, 143 Fed. 748, grantees of public lands out- 13 Pet. 498-518 Notes on U. S. Reports. 180 side of Fort Belknap reservation could not acquire, as against Indians, exclusive right to waters of Milk river, for purposes of irrigation; United States v. Tully, 140 Fed. 905, lands occupied but without limits of lands reserved for Missoula Military Reservation by executive or9er are not within such reservation; Northern Lum- ber Co. v. O'Brien, 139 Fed. 616, under Northern Pacific grant of 1864, lands withdrawn by land department in advance of per- manent location of another road not embraced therein; Gibson v. Anderson, 131 Fed. 42, 65 C. C. A. 277, President, by proclamation, may reserve portion of unoccupied public lands for Indian reserva- tion; Gavigan v. Crary, 2 Alaska, 380, where tract of public land is actually set apart by war department for military purposes, and government appropriations expended in fitting it for such use and military forces remain in possession thereof until its abandon- ment by formal notice, it was a military reservation; Crawford v. 13urr, 2 Alaska, 35, where commander of military post gave party permission to erect stable on reservation, he initiated no right to ground by such possession; State v. Trustees of the Internal Im- provement Fund, 47 Fla. 325, 35 So. 995, applying rule where lands were listed as swamp and overflowed lands; Florida Town Imp. Co. V. Bigalsky, 44 Fla. 776, 33 So. 451, applying rule to public lands on north end of Amelia Island reserved for military purposes; State V. Tully, 31 Mont. 382, 78 Pac. 766, determining jurisdic- tion of state over homicide committed on land set apart to military reservation; McMichael v. Murphy, 12 Okl. 160, 161, 70 Pac. 191, homestead entry valid on its face segregates it from the public domain and precludes it from subsequent entry until original entry is canceled. See 106 Am. St. Eep. 800, note. Syl. 8 (III, 865). Patent alone passes perfect title. Approved in McCune v. Essig, 199 U. S. 390, 50 L. 241, 26 Sup. Ct. 78, doctrine of relation cannot be invoked to confer any right in land under operation of state laws upon daughter of deceased homesteader as against widow to whom patent has issued. Syl. 9 (III, 866). Statute conveying lands in present tense. Approved in Smith v. Beloit, 122 Wis. 407, 100 N. W. 881, where entryman on public land, after having paid his money and obtained register's certificate, platted land into city lots, on recording of patent to him, deeds to grantees conveyed legal title. Syl. 10 (III, 867). Federal laws govern passing of government title. Approved in Peyton v, Desmond, 129 Fed. 10, 63 C. C. A. 651, state statute purporting to regulate effect of final receipts of United States land department cannot withhold from grantees of govern- ment any of incidents of transfer of government title; Moore v. Halliday, 43 Or. 253, 99 Am. St. Eep. 724, 72 Pac. 804, one who haa 181 Notes on U. S. Ecports. 13 Pet. 519-G06 made Tiomcstcad filing on government land, and is in possession, but has not obtained title, cannot have title quieted as against one claiming an interest therein. Syl. 11 (III, 8G7). State regulation when title passes. Approved in Cunningham v. Krutz, 41 "Wash. 197, 83 Pac. 112, where husband homcsteaded lands and resided thereon with wife, and patent issued to him, and wife left will giving undivided half of land to her children, wife could not devise any part of same as coinmuincy property as patent vested entire estate in husband. Syl. 12 (III, 867). Suit against government officer. Approved in Wadsworth v. Boysen, 148 Fed. 780, suit to enjoin Indian agent from obstructing complainant in prospecting on reser- vation is not suit against government though defendant claims to be acting in official capacity. 13 Pet. 519-G06, 10 L. 274, BANK OF AUGUSTA v. EAELE. Syl. 4 (III, 871). Corporation cannot migrate. Approved in Lee v. Atlantic etc. R. Co., 150 Fed. 800, where peti- tion for removal by tlefendant corjioration alleges that it was or- ganized under laws of state other than that on which it is sued, an allegation that it is not a citizen of latter state is unnecessary; Miller v. Ahrens, 150 Fed. 056, since under West Virginia laws religious societies cannot be incorporated, a trust created by will for benefit of foreign religious corporation, involving devise of land in West Virginia, is void; Kirven v. Virginia etc. Co., 145 Fed. 292, failure of foreign corporation to comply with state stat- ute imposing conditions precedent to right of such corporations to do business in state, does not render contracts wholly void, but only suspends right to sue thereon until it complies.; Western Union Tel. Co. V. Pittsburg etc. Ey. Co., 137 Fed. 437, in federal equity suit for specific performance of telegraph right of way contracts with certain consolidated railroads, necessary parties being subject to court's jurisdiction, it is immaterial that portion of property affected is outside of district; Old Wayne Mut. Life Assn. v. Mc- Donough, 164 Ind. 327, 73 N. E. 705, upholding Pennsylvania stat- ute requiring foreign insurance companies to file with insurance commissioner permitting service of process on commissioner or on agent designated by company; Ham v. Booth, 72 Kan. 431, 83 Pac. 25, tax deed is not void for failing to give residence of assignee of certificate of sale where such assignee is foreign corporation and recital is that it is a corporation organized and existing under laws of designated state; Williams v. Metropolitan St. Ey. Co., 68 Kan. 21, 74 Pac. 602, 64 L. R. A. 794, foreign corporation is "out of the state" within meaning of Code, § 21, and therefore cannot avail itself of the statute of limitations; Pollock v. German Fire Ins. Co., 132 Mich. 227, 93 N. W. 437, upholding statutes relating t© 13 Pet. 519-606 Notes on U. S. Reports. 182 foreign insurance companies providing that term "agent" shall include any acknowledged agent or other person who shall aid in transaction of company's business; Groel v. United Elec. Co., G9 N. J. Eq. 410, 60 Atl. 827, upholding service on designated agent of foreign corporation; Myatt v. Ponca City Land etc. Co., 14 Okl. 223, 224, 226, 78 Pac. 194, 195, 68 L. R. A. 810, where foreign cor- poration, acting in excess of its conferred authority, attempts to acquire property vested in individual, latter may deny corporate f-apacity as defense to right of recovery; Chapman y. Cash Register Co., 32 Tex. Civ. 77, 73 S. W. 970, under Rev. St., arts. 745, 746, requiring foreign corporation to file certified copy of articles of in- corporation, such corporations must, on suing, allege compliance with statute; Booth v. Weigand, 28 Utah, 384, 79 Pac. 572, uphold- ing constitutional and statutory provisions prescribing conditions for transaction of business by foreign corporations; National Coun- cil etc. American Mechanics v. State Council, 104 Va. 205, 51 S. E. 169, upholding act of Feb. 17, 1900, constituting certain persons a body corporate and giving corporation exclusive authority to charter subordinate chapters, thereby in effect annulling prior ex- isting right of foreign corporation; dissenting opinion in Security etc. Ins. Co. v. Prewitt, 202 U. S. 265, 50 L. 1021, 26 Sup. Ct. 619, majority holding state may provide that if foreign insurance com- pany shall remove to federal court case commenced in state court, I'cense to do business in state shall be revoked; Kansas City etc. Py. Co. V. Stevenson, 135 Fed. 554, arguendo. Distinguished in Goodwin v. Clayton, 137 N. C. 235, 107 Am. St. Rep. 479, 49 S. E. 177, 67 L. R. A. 209, upholding right to proceed against New Jersey corporation by garnishment where services sued on performed in North Carolina and it had no property in former state. Syl. 8 (III, 877). Comity — Enforcement of foreign laws. Approved in Corbin v. Houlehan, 100 Me. 256, 61 Atl. 135, 70 L. R. A. 568, action for liquors sold in another state cannot be main- tained where statute of this state prohibits such sales; Holshouser v. Copper Co., 138 N. C. 258, 50 S. E. 654, 70 L. R. A. 183, claim for state license fee imposed by New Jersey statute on corpora- tions created by that state is not entitled to preference in insol- vency proceedings against such corporations in another state; dis- senting opinion in Warren v. Pim, 66 N. J. Eq. 417, 59 Atl. 797, majority holding voting trust in stock of fisheries company a New Jersey corporation, claimed by a British corporation, contrary to public policy and void. Syl. 11 (III, 879). Suit by foreign corporation. Approved in Evansville etc. Co. v. Henderson B. Co., 132 Fed. 404, federal equity court sitting in Kentucky cannot compel domes- tic corporation to permit Indiana railroad, which has not complied 183 Notes on U. S. Reports. 13 Pet. 519-606 with law relating to foreign corporations, to connect with and uso tracks over bridge to enable railroad to do business in Kentucky. Syl. 12 (III, 8S0). Imposition of terms on foreign corporations. Approved in Miller v. Ahrens, 150 Fed. 656, since, under West Virginia laws, religious societies cannot be incorporated, a trust created by will for benefit of foreign religious corporation involving devise of land in West Virginia is void; Kirven v. Virginia etc. Co., 145 Fed. 292, failure of foreign corporation to comply with state statute imposing conditions precedent to right of such corporations to do business in state does not render contracts wholly void, but only suspends right to sue therein until it complies; Prewitt v. Security etc. Ins. Co., 119 Ky. 327, 83 S. W. 612, upholding Ky. St. 1903, § 631, providing that if any foreign insurance company shall, without the consent of the other party to the suit, remove action to federal court, insurance commissioner shall revoke its license; State v. Cumberland Tel. etc. Co., 114 Tenn. 200, 86 S. W. 391, failure of foreign telephone company to file abstract of its charter in each county, where it has exchange as required by stat- ute, docs not work forfeiture of charter; Standard Oil Co. v. Com- monwealth, 104 Va. 685, 52 S. E. 390, holding Va. Code 1904, p. 2214, imposing license fee on foreign corporations, requires fee of corporations authorized to exercise powers of public service cor- poration, though it does not intend to exercise business of public service corporations; Presbyterian Ministers' Fund v. Thomas, 126 Wis. 286, 110 Am. St. Eep. 919, 105 N. W. 803, where foreign in- surance has failed to comply with statutes imposing conditions precedent to right of companies to do business witli residents, it cannot recover on such contract though made in anotlur state. Syl. 13 (III, 8S3). Franchises defined. Approved in Chicago v. Eothschild, 212 111. 593, 72 N. E. 699. city ordinance granting right to niaintain elevated passageway connect- ing store with elevated railroad, and limiting right to fifty years, was neither franchise nor freehold interest; Purnell v. McLane, 98 Md. 592, 56 Atl. 831, upholding Baltimore ordinance authorizing electrical commission to rent conduit space only to companies hav- ing authority to use streets. XIV PETERS. 14 Pet. 19-32, 10 L. 335, BANK OF THE METROPOLIS v. GUTTSCHLICK. Syl. 2 (IV, 8). Corporation's contract through officers. Approved in Sudworth v.- Morton, 137 Mich. 578, 100 N. W. 770, where, in action to recover money obtained by false representa- tions, declaration alleged representations were made to plaintiff, who paid money relying thereon, proof that representations mado to plaintiff's agent and that she paid money on plaintiff's behalf, and that he subsequently ratified her act, constitute no variance. Syl. 12 (IV, 10). Judgment on note. Limitations — Foreclosure. Approved in Haggart v. Wilczinski, 143 Fed. 28, under Mississippi statutes fact that debt secured, by mortgage was barred dii>roved in Pratt v. Fishwild, 121 Iowa, 649, 96 N. W. 1092, fol- lowing rule; Taylor v. Finnigan, 189 Mass. 575, 76 X. E. 205, 2 L. E. A. (X'^. S.) 973, oral modification of lease, consisting of promise by landlord to provide additional means of egress from demised prem- ises so as to make them comply with statute, is valid if founded on good consideration; McCormick v. Johnson, 31 Mont. 270, 78 Pac. 502, promise by partners to pay existing debt of corporation to another in consideration of such other giving them agency for sale of his coal, need not be in writing; Chicago etc. E. Co. v. Brown, 70 X'eb. 700, 97 X^. W. 1040, uncertainty as to which of two persons, both denying liability, is liable for fixed debt, is sufficient consideration for compromise between one of parties and creditor. 22 How. 46-48, 16 L. 285, OYERTOX v. CHEEK. Syl. 1 (V, 920). Seal necessary to writ of error. Distinguished in Kipp v. Burton, 29 Mont. 102, 101 Am. St. Rep. 544, 74 Pac. 87, 63 L. E. A. 325, under Act 1899, p. 145, § 2, sale under execution defective by reason of absence of seal was validated by act without amendment. 22 How. 48-56, 16 L. 269, XELSON v. LELAXD. Syl. 1 (Y, 921). Supreme court — District court's jurisdiction. Approved in Miltimore v. Hoffman, 125 Wis. 563, 1U4 X. W. 842, under Eev. St. 1898, § 3769, where appeal was properly perfected from justice's judgment, on which justice bad no jurisdiction, it is duty of circuit court to dismiss action. 22 How 96-111, 16 L. 323, BAXK OF PITTSBUEG v. XEAL. Syl. 1 (V, 825). Authority to fill blanks in note. Approved in ^Mechanics' Bank v. Chardavoyne, 69 X. J. L. 259, 101 Am. St. Rep. 7Ul, 55 Atl. lOSl, following rule; Thread v. Guer- L33yj 22 How. 129-214 Notes on U. S. Kcports. 340 niger, 115 La. 246, 38 So. 981, where holder of note secured by mort- gage left for safekeeping with notary who sold it ^nd mortgaged property was sold by owner who deposited in court amount sufficient to pay note, purchaser from notary was entitled to judgment on note; Merchants' etc. Bank v. Ohio Valley etc. Co., 57 W. Va. 630, 50 S. E. 882, 70 L. E. A. 312, bank discounting note in hands of agent with knowledge of agency and with notice that agent was to use l)roceods for personal use cannot recover of principal. (Y. 925.) Miscellaneous. Cited in Gilmore v. Meeker, 115 La. 866, '10 So. 244. 22 Eow. 129-132, 16 L. 294, KOACH v. CHAPMAN. Syl. 1 (V, 928). Shipbuilding contract not maritime. Approved in The Winnebago, 141 Fed. 949, fact that vessel sub- ject to statutory lien for labor or materials under state statute has been enrolled and engaged in interstate commerce, does not affect jurisdiction of state court over suit to enforce statutory liens; Delaney etc. Co. v. The Winnebago, 142 Mich. 88, 105 N. W. 529, up- holding Comp. Laws 1897, § 10,789, creating lien for materials furnished for original construction of ships and providing for en- forcement of lien. Syl. 2 (V, 930). Federal courts— State law giving lien. Approved in The San Eafael, 141 Fed. 280, state statute limiting time within which liens on vessels given thereby must be enforced does not affect admiralty jurisdiction to enforce lien given by general jtiaritime law. 22 How. 193-214, 16 L. 306, LYTLE v. ARKANSAS. Syl. 3 (V, 934). Fraud — Eeview of land office decisions. Approved in United States v. Detroit Timber etc. Co., 200 TJ. S. 339, 50 L. 506, 26 Sup. Ct. 282, bona fide holder of standing timber from holders of receiver's final receipts for land entered under timber act cannot on avoidance of patents for fraud of entryman, be re- quired to account to government for timber cut in reliance on pur- chase; Kstcs v. Timmons, 199 U. S. 395, 50 L. 244, 26 Sup. Ct. 85, perjury on hearing before Land Department of contest over entry under homestead laws is not ground for equitable relief against department decision; Le Marchel v. Teegarden, 133 Fed. 827, party attacking patent for mistake of fact must plead and prove evidence before department from which mistake resulted, particular mistake made and the way in which it occurred. Distinguislied in Estes v. Timmons, 12 Okl. 543, 73 Pac. 305, refus- ing to review determination of land department and declare trust where only allegation touching fraud is that some of witnessea before department testified falsely. 341 Notes on U. S. Eeports. 22 How. 214-269 22 How. 214-216, 16 L. 238, BONDIES v. SHEEWOOD. Syl. 1 (V, 935). Salvage — Eepudiation of contract. Approved in The Myrtle Tunnel, 146 Fed. 326, tug contracting to float and deliver stranded ship at certain port, which fails to do so, cannot recover salvage for its efforts as result of which ship floated by tide and rescued by other vessels. 22 How. 217-225, 16 L. 240, CHAFFEE v. BOSTON BELTING CO. Syl. 1 (V, 936). Eepair of patented machine by purchaser. Approved in National Cash Reg. Co. v. Grobet, 148 Fed. 387, where complainant sold two cash registers which were alike except that one contained printing device not attached to other, and defend- ant took off printing device and attached it to other, there was no infringement; Wagner Typewriter Co. v. Webster Co., 144 Fed. 410, 415, determining right to replace ribbon and spool for typewriters. Distinguished in Morrin v. Eobert etc. Works, 138 Fed. 73, holding reconstruction of generating tubes in steam generator to be infringe- ment. 22 How. 227-244, 16 L. 243, SINNOT v. DAVENPOET. Syl. 1 (V, 937). State navigation acts conflicting with federal. Approved in Jacobson v. Massachusetts, 197 U. S. 25, 49 L. 649, 25 Sup. Ct. 358, upholding Mass. Eev. Laws, c. 75, § 137, authorizing compulsory vaccination; Dobbins v. Los Angeles, 195 U. S. 237, 49 L. 175, 25 Sup. Ct. 18, holding void city ordinance narrowing limits within which gasworks may be erected where it included works in process of erection under prior ordinance, where change in limits not demanded by public welfare; Northern Securities Co. v. United States, 193 U. S. 336, 348, 48 L. 700, 704, 24 Sup. Ct. 436, combination by stockholders in two competing interstate railroads to form stock- holding coi'poration to acquire, in exchange for own stock controlling interest in stock of each road, violates anti-trust act of 1890 ; Crescent Liquor Co. v. Piatt, 148 Fed. 898, holding Acts W. Va. 1903, p. 130, c. 40, prohibiting delivery of liquor by agent to unlicensed person void as applied to interstate shipments; Hagan v. City of Eichmond, 104 Va. 732, 3 L. R. A. (N. S.) 1120, 52 S. E. 389, local authorities may keep navigable waters unobstructed, where war department does not remove obstructions. See 103 Am. St. Rep. 869, note. 22 How. 256-269, 16 L. 313, KIMBO v. BULLITT. Syl. 2 (V, 940). Trading partnership's bill of exchange. Approved in Marsh v, Wheeler. 77 Conn. 453, 454, 59 Atl. 411, firm engaged in making plumbing contracts and purchasing and selling fix- tures, though it has no store, is trading partnership, partners of which may bind firm by note. 22 How. 270-334 Notes on U. S. Reports. 342 Syl. 3 (V, 941). Accommodation acceptors of partnership paper for partner. Approved in Union Nat. Bank v. Neill, 149 Fed. 714, 717, where note wlien presented for discount was signed on face by three persons, fact that name of partnership subsequently adjudged banlcrupt ap- peared as second signer not notice that firm signed only as surety. 22 How. 270-273, 16 L. 337, CLARK v. BOWEN. Syl. 1 (V, 941). Effect of annulment of compromise. See 100 Am. St. Rep. 429, note. 22 How. 200-293, 16 L. 342, YTURBIDE'S EXECUTORS v. UNITED STATES. Syl. 1 (V, 943). Notice of appeal mandatory. Approved in Todd v. Peterson, 13 Wyo. 522, 81 Pac. 881, where mo- tion for new trial was not filed with clerk within time required, by mere inadvertence, court could not at subsequent term direct filing of motion nunc pro tunc. (V, 943.) Miscellaneous. Cited in Meyers v. United States, 5 Okl. 185, 48 Pac. 189, to point that land department may prescribe rules governing proceedings instituted to obtain title to public land. 22 How. 318-330, 16 L. 370, REFELD v. WOODFOLK. Syl. 2 (V, 944). Conveyance and payment of price correlative. Ai)proved in Williams v. Neely, 134 Fed. 8, 69 L. R. A. 232, 67 C. C. A. 171, partial failure of consideration resulting from defect of title is good defense pro tauto to action by vendor on purchase money note where vendor covenanted against encumbrances. Syl. 3 (V, 945). Agreement for warranty deed — Remedy. Distinguished in Williams v. Neely, 134 Fed. 10, 69 L. R. A. 232, 67 C. C. A. 171, enjoining action at law on purchase money note where vendor covenanted against encumbrances and there was defect in title. 22 IIuw. 330-334, 10 L. 249, WARD v. THOMPSON. Syl. 1 (V, 945). Admiralty — Accounting for profits of vessel. Cited in The Clifton, 143 Fed. 463, arguendo. Distinguished in The Emma B., 140 Fed. 771, upholding admiralty jurisdiction to decree accounting as incidental to suit for partition of vessel. Syl. 2 (V, 940). Who are partnors. Approved in Burton v. United States, 142 Fed. 62, where in execu- tion of joint enterprise one partner deposits nonmailable circular in mail with knowledge of other, latter causes circular to be so deposited witliin moaning of Rev. St., § ."jSOo ; Rector v. Rollins, 74 Ark. 442, S6 S. W. 069, holding erroneous instructions that if defendant agreed to 343 Kotes on U. S. Eeports. ' 22 How. 3-11-435 perform services for firm and to receive one-third of x'rL>flts^ but to contribute nothing to firm, he was not partner. 22 How. 341-352, 16 L. 260, REY v. SIMPSOX. Syl. 1 (V, 946). Tndorser before delivery. Approved in Keyser v. Warfield, 100 Md. 80, 59 Atl. 190. and Keyser V. Warfield, 103 Md. 167, 63 Atl. 218, both holding where plaintiff and intestate, prior to delivery of note executed by corporation to bank for discount, and before name of payee had been written therein in- dorsed note, they became joint makers. 22 How. 352-364, 16 L. 345, JETER v. HEWITT. Syl. 2 (V, 949). Following state law. Approved in City of Defiance v. McGonigale, 150 Fed. 697, following state decision to effect that city by accepting performance and itself performing water contract for several years estopped to question its * validity. 22 How. 364-380, 16 L. 296, ASPIXWALL v. COMMISSIONERS OF DAVIESS COUNTY. Syl. 1 (V, 949). Contracts— Railroad aid subscription. Approved in Farmers' Loan etc. Co. v. Siou.K Falls, 131 Fed. 912, under South Dakota constitution as amended in 191 12. city could not issue water bonds on note taken before aniendment under statute pro- viding that majority of electors should be determined by vote for mayor at preceding city election. 22 How. 392-406, 16 L. 353, UNITED STATES v. TESCHMAKER. Syl. 1 (V, 954). Mexican archives as evidence. Approved in Sjirinkle v. United States. 141 Fed. 820. admitting rules of Internal Revenue Department in prosecution for defrauding gov- ernment of tax on distilled liquors. 22 How. 422-435, 16 L. 387, THOMFSON v. LESSEE OF CARROLL. Svl. 1 (V, 956). Tax sale of lands — Exhaustion of personalty. Approved in Hadloy v. Iladley, 114 Tenn. 171, 87 S. W. 254, up- holding Acts 1897, c. 1, p. 5, as enacted in 1899, 1901. 190:5, under whirh lieu for taxes assessed to life tenant attaches to interest of re- mainderman. XXIII HOWARD. 23 How. 14-28, 16 L. 474, LAWRENCE v. TUCKER. Syl. 14 (V, 9G2). Parol to explain mortgage. Approved in Holley v. Curry, 58 W. Va. 75, 112 Am. St. Rep. 948, 51 S. E. 137, equitable mortgage containing clause that it is to secure to person named payment of whatever sum may be due on settlement, sufEciently describes debt. 23 How. 28-45, 16 L. 412, RICHARDSON v. GODDARD. Syl. 2 (V, 964). Shipping — Delivery to consignee. Approved in Vaughn v. New York etc. R. R. Co., 27 R. I. 237, 61 Atl. 696, where carrier permits consignee to open cars after they are on spur track and remove part of contents and put own locks on ears, carrier's liability is terminated. See 97 Am. St. Rep. 99, note. 23 How. 49-65, 16 L. 534, OELRICH v. FORD. Syl. 2 (V, 966). Custom to vary written contract. Approved in Moore v. United States, 196 U. S. 166, 49 L. 433, 25 Sup. Ct. 202, custom between shippers and ship owners at San Fran- cisco requiring consignee to designate berth for discharge^ of cargo does not prevail over contract for delivery at wharf in Honolulu; Knit- ting Mills V. Guaranty Co., 137 N. C. 570, 50 S. E. 306, 70 L. R. A. 167, indemnity bond cannot be modified by extrinsic evidence of pre- liminary negotiations. Syl. 3 (V, 967). When parol admissible to explain writing. Approved in Lillard v. Kentucky Distilleries etc. Co., 134 Fed. 182, 67 C. C. A. 74, applying rule to evidence of usage in reference to feed- ing cattle with distillery slop; Kalamazoo Corset Co. v. Simon, 129 Fed. 145, 146, usage that in sales of job lots of goods, buyer is not obligated if variation in quantity delivered is considerable, not ap- plicable where contract recited that proportion in sizes was nearly per- fect. Syl. 5 (V, 967). Principal's suit on agent's contract. Approved in In re Weisenberg, 131 Fed. 521, parol evidence if? ad- missible to show that joint notes signed by members of bankrupt firm are in fact firm debts. [344] 345 Notes on U. S. Eeports. 23 How. 66-132 23 How. «6-90, 16 L. 500, DUBUQUE AND PACIFIC E. E. CO. v. LITCHFIELD. Syl. 3 (V, 909). Public grants construed against grantee. Approved in Knoxville Water Co. v. Knoxville, 200 U. S. 35, 50 L. 359, 26 Sup. Ct. 224, municipal grant of waterworks francliise does not devest municipality of power to construct its own system ; Story V. Woolverton, 31 Mont. 354, 355, 78 Pac. 590, construing 26 Stat. 748, granting to Montana section of land of former military reserva- tion with reference to water rights. 23 How. 90-108, 16 L. 419, GEEEN'S ADXIINISTEATRIX v. CEEIGHTON. Syl. 2 (V, 971). Equity jurisdiction over executors as trustee. Approved in Schurmeier v. Connecticut etc. Ins. Co., 137 Fed. 47, 69 C. C. A. 22, upholding federJil jurisdiction over equity suit to per- mit presentation of and allow claim against estate of decedent after time limited by order of Minnesota court and within eighteen months provided by statute; dissenting opinion in Moore v. Fidelity Trust Co., 138 Fed. 1009, majority holding where surviving partner was one of executors of estate of deceased partner, which was being adminis- tered upon, bill by distributee under will to compel accounting by surviving partner not maintainable in federal court. Syl. 3 (V, 972). Insolvency court's jurisdiction, when exclusive. Distinguished in United States v. Bitter Eoot Development Co., 200 U. S. 475, 50 L. 562, 26 Sup. Ct. 318, denying equitable relief for wrongful conversion of timber from public domain where one of de- fendants is executrix of principal wrongdoer whose estate is insolvent. Syl. 4 (V, 973). Discovery of assets of insolvent surety for ex- ecutor. Approved in Fineke v. Bundrick, 72 Kan. 187, 83 Pac. 405, sale of testator's realty to surety on executor's bond under probate order pro- cured through executor's fraud set aside at suit of devisee though surety innocent. 23 How. 117-132, 16 L. 436, PENNOCK v. COE. Syl. 1 (V, 973). Mortgage of after-acquired property valid. Approved in Fisher v. Zollinger, 149 Fed. 57, taking possession of after-acquired property by mortgagee within four months of mort- gagor's bankruptcy does not create lien nor operate as preferential transfer within Bankr. Act, 1898, § 60a; Johnson v. Donohue, 11.1 Tenn. 450, 83 S. W. 361, where insolvent prior to bankruptcy assigned right to receive certain funds from railroad accruing under contract together with after-accruing funds, in consideration of pre-existing debt, assignee entitled to accruing funds, though at time of assignment debtor's right thereto .was contingent. See 99 Am. St. Eep. 253, 259, note. 123 How. 149-190 Notes on U. S. Keports, 346 23 How. 149-167, 16 L. 518, BENJAMIN v. HH^LAED. Syl. 3 (V, 978). Change of contract discharging surety. Approved in Groendyke v. Musgrave, 123 Iowa, 539, 99 N. W. 145, where defendant guaranteed payment under contract whereby plain- tiff sold twine for which notes given payable in October and November, and part of twine being inferior was returned and credit given there- for, guarantor not relieved; Segari v. Mazzei, 116 La. 1031, 41 So. 247, mere change in site of dwelling-hi)us:e from one place to another in same square does not discharge sunjty. Syl. 5 (V, 979). Damages for deficiency in machinery. Approved in American China Dev. Co. v. Boyd, 148 Fed. 271, allow- ing prospective damages consisting of unpaid contract price for dis- charge of servant before expiration of term; Thomas China Co. v. C. W. Eaymond Co., 135 Fed. 28, 67 C. C. A. 629, under contract for sale of machinery whereby seller agreed to replace parts breaking through defects, buyer could remedy defects or procure new parts from others and charge seller with cost under general warranty. 23 How. 167-170, 16 L. 410, OGDEN v. PARSONS. Syl. 1 (V, 979). Subjects of expert evidence. Approved in Hamann v. Milwaukee Bridge Co., 127 Wis. 565, 106 N. W. 1086, opinion evidence as to whether particular manner of moving heavy machine from car to building was proper, is incompetent. 23 How. 172-190, 16 L. 424, CASTLE v. BULLARD. Syl. 1 (V, 979). Peremptory nonsuit by circuit court. Distinguished in Parks v. Southern Ry. Co., 143 Fed. 278, and Huntt v. McNamee, 141 Fed. 294, both holding where voluntary nonsuit Y>er- mitted by state practice, it is discretionary with federal court to re- fuse nonsuit after conclusion of plaintiff's testimony and after di- recting verdict for defendant. Syl. 3 (V, 980). Evidence of other similar fraudulent acts. Approved in Exchange Bank v. Moss, 149 Fed. 344, where conspirac} to defraud covered long period of time, evidence of acts of defendant's cashier as to similar transactions tending to show defendant's com- plicity is admissible; Brooks v. United States, 146 Fed. 231, in jjrosecution for using mails to defraud letters other than those in in- dictment purported to be by defendant 's company are admissible ; Olson v. United States, 133 Fed. 854, 67 C. C. A. 21, under indict- ment to swindle government out of land by means of illegal entry, evidence of other similar entries is admissible. Syl. 5 (V, 981). Circumstantial evidence never irrelevant. Approved in Bryan v. United States,. 133 Fed. 500, 66 C. C. A. 369, in prosecution for uttering counterfeit live-cent pieces, where it is 347 Notes on U. S. Reports. 23 How. 190-235 shown that defendant passed such pieces, evidence of finding of mold for making twenty-five-cent pieces in his possession is admissible. Syl. 6 (V, 982). Liability of partners for firm's fraud. Approved in In re Hardie, 143 Fed. 608, materially false state- ment in writing made by partner in course of buying goods for pur- pose of obtaining credit, debars other partner from discharge in bank- ruptcy. 23 How. 190-209, 16 L. 484, BEAUBIEN v. BEAUBIEN. Syl. 4 (V, 983). Time of discovery of fraud must be alleged. Approved in Succession of Dauphin (Choppin v. Dauphin), 112 La. 140, 36 So. 300, mere general statement that discovery of fraud made within year is insufficient to annul judgment. 23 How. 209-220, 16 L. 433, PHILADELPHL\ ETC. R. R. v. PHIL- ADELPHIA ETC. TOWBOAT CO. Syl. 1 (V, 984). Admiralty jurisdiction in tort. Approved in United States v. Evans, 195 U. S. 365, 49 L. 237, 25 Sup. Ct. 46, upholding admiralty jurisdiction over libel in rem against vessel for colliding with beacon standing in water though built on piles driven into bottom; Bowers Hyd. Dredging Co. v. Federal Con- tracting Co., 148 Fed. 294, upholding admiralty jurisdiction over suit to recover hire of dredge intended to operate afloat, though dredge temporarily used for a partly land transaction. (V, 984.) Miscellaneous. Cited in The Cumberland, 135 Fed. 236. 23 How. 220-235, 16 L. 442, DERMOLT v. JONES. Syl. 2 (V, 987). Contracts — Dependent promises. Cited in Schaffer Piano Mfg. Co. v. National Fire Ext. Co., 148 Fed. 165, arguendo. Syl. 4 (V, 987). Assumpsit — Acceptance — Xoucomformity with con- tract. Approved in United States v. Molloy, 144 Fed. 323, where plain- tiff's delivery of stone was not in accordance with contract but de- fendant accepted it with knowledge, plaintiff could recover value of stone delivered less loss sustained by breach of contract; Clough v. Still- well Meat Co., 112 Mo. App. 189, 190, 86 S. W. 584, where warehouse- man agreed to store goods till certain date and prior to such time goods burned, warehouseman could recover value of his services. Distinguished in Tussey v. Owen, 139 N. C. 461, 52 S. E. 129, where child contracted to serve father till his death in consiction G. ZNIin. Co. v. Fortune G. Min. Co., 129 Fed. 674, 64 C. C. A. ISO, following rule; Balliet v. United States, 129 Fed. 696, 697, 64 C. C. A. 201, instructing in prosecution for using mails with intent to defraud, that jury may consider failure of defend- ant, who has testified, to explain material matters within his knowledge is misleading. Distinguished in dissenting o])inion in Resurrection G. ]\Iin. Co. t. Fortune G. Min. Co., 129 Fed. 681, 64 C. C. A. 180, majority following rule. 1 Wall. 721-74.5, 17 L. 627, ROMERO v. UNITED STATES. Syl. 1 (VI, 359). Mexican archives as evidence. Approved in Sprinkle v. Ihiited States, 141 Fed. 820, on trial for violation of internal revenue laws, regulations of revenue comuiissioiier are admissible. II WALLACE. 2 Wall. 1-9, 17 L. 762, DERMOTT v. JONES. Syl. 1 (VI, 362). Excuse for failure to perform contract in time. Approved in Cottrell & Son v. .Smokeless Fuel Co., 148 Fed. 597, under contract for sale and delivery of coal from certain mine, deliveries to be subject to strikes which might delay or prevent shipment, performance not excused because strike increased cost of production; Link Belt etc. Co. V. United States, 142 Fed. 247, under construction contract providing penalty for each day's delay, delay caused by inability to obtain steel owing to congestion of mills' is no excuse; Indian Mt. etc. Coal Co. v. Ascheville Ice etc. Co., 134 N. C. 584, 47 S. E. 120, under contract for sale of all coal defendant may require during certain period, defendant cannot be compelled to reduction by pro-rating with other patrons of plaintiff ; Wheeling etc. Foundry Co. v. Wheeling etc. Iron Co., 58 W. Va. 66, 51 S. E. 131, under contract to deliver machinery by certain time, fact that contractor acted in good faith and with due diligence is no defense to deduction of penalty from contract price. Syl. 2 (VI, 363). Assumpsit — Performance not according to contract. Ap])rnved in United States v. Molloy, 144 Fed. 325, 327, where plain- tiff's ilelivcry of stone was not in accordance with contract, but de- fendant accepted it with knowledge, he is liable on quasi contract for value of stone delivered less losses due to breach. 2 Wall. 10-23, 17 L. 776, HAWTHORNE v. (JALEF. Syl. 2 (VI, 366). Obligation of contracts — Stockholder's liability. Approved in Harrison v. Remington Paper Co., 140 Fed. 392, Laws Kan. 1898, c. 10, p. 27, repealing existing laws and substituting new form of action to enforce stockholder's liability, is void as to pre-ex- isting creditors; Knickerbocker Trust Co. v. Myers, 133 Fed. 767, Act. Md. 1904, p. 579, c. 337, substituting single suit in equity against stock- holders for benefit of all corporation 's creditors is void as against pre- existing creditors. Distinguished in Miners' etc. Bank v. Snyder, 100 Md. 65, 108 Am. St. Rep. 390, 59 Atl. 708, 68 L. R. A. 213, upholding Acts 1904, p. 597, c. 337, substituting remedy by bill in equity to enforce stockholder's liability as against creditor who has sued under prior law but has not obtained judgment. 2 Wall. 24-35, 17 L. 780, DRURY v. FOSTER. Syl. 2 (VI, 368). Delivery of deed in blank. Approved in Burk v. Johnson, 146 Fed. 219, where name of grantee iu escrow deed left blank at request of vendee, subsequent liiJing in [384] 385 Notes on U. S. ReporU. 2 Wall. 35-70 blank and recordation did not invalidate it; Carr v. McColgan, 100 Md. 477, 60 Atl. 608, act of mortgagees in accepting benefit of mortgage loan and participating in foreclosure sale estops them from excepting to sale on ground that scrivener's authority to fill in blanks rested only in parol. Syl. 4 (VI, 369). Married woman's power of attorney. Approved in Lewis v. Apperson, 103 Va. 632, 106 Am. St. Rep. 903, 49 S. E. 981, 68 L. R. A. 867, where wife joined commissioner in suit to subject lands to liens, in executing deed relinquishing dower rights, she is not estopped from claiming dower rights as husband did not join in deed. 2 Wall. 35-45, 17 L. 755, MILES v. CALDWELL. Syl. 3 (VI, 370). Res adjudicata — Parol to explain judgment. Approved in Halford v. James, 136 Fed. 555, 556, 69 C. C. A. 263, where issues involved in former case do not appear in entry of judg- ment pleaded as res adjudicata, and pleadings have been burned, parol is competent to prove issues. 2 Wall. 45-56, 17 L. 868, TOOL CO. v. NORRIS. Syl. 1 (VI, 372). Payment for getting government contract. Approved in Le Tourneux v. Gilliss, 1 Cal. App. 552, 82 Pac. 629, note for money advanced for expenses of lobbyist is void. Distinguished in Padilla v. Padilla, 11 N. M. 546, 70 Pac. 564, where brother secured judgment in court of claims on Indian depredation claim for property owned by himself and sister, and before judgment he agreed to pay sister her share when he received money, sister may re- cover. Syl. 2 (VI, 374). Contracts to control government's business opera- tion. Approved in Hazelton v. Sheckels, 202 U. S. 78, 79, 50 L. 941, 942, 26 Sup. Ct. 567, agreement to sell land at specified price is void where consideration was rendition of services in calling attention of Congress of desirability of land for public building site; Sussman v. Porter, 137 Fed. 164, agreement to procure consent of abutting property owners for construction of trolley line and to obtain franchise for same for contingent fee, is void; McGuffin v. Coyle, 15 Okl. 668, 674, 85 Pac. 960, 962, note payable to officers of railroad in personal capacity on condition that road built to certain point by certain time, is void. 2 Wall. 57-70, 17 L. 818, BANKS v. OGDEN. Syl. 1 (VI, 375). Accretions belong to riparian owner. Approved in Sherwin v. Bitzer, 97 Minn. 256, 106 N. W. 1048, state- ment in deed that land conveys certain number of acres does not con- trol description of lots abutting on water, where water has receded. 25 2 Wall. 70-96 Notes on U. S. Ecports. 386 Syl. 4 (VI, 376). Boundaries — Grant bordering on river. Approved in Western Union Tel. Co. v. Krueger, 36 Ind. App. 353, 74 N. E. 26 and Sweatman v. Bathrick, 17 S. D. 159, 95 N. W. 427, both following rule. 2 Wall. 70-87, 17 L. 732, BEOOKS v. MARTIN, Syl. 1 (VI, 377). Accounting where illegal contract performed. Approved in Doyle v. Burns, 123 Iowa, 512, 99 N. W. 204, where after plaintiff and defendant agreed to locate mining claims, latter sold claims receiving stock therefor, and defendant testified plaintiff made false proofs in perfecting title, and he and defendant directors in company to which mines sold for more than they were worth, plaintiff's actions not bar to suit to recover half of defendant's stock; Padilla v. Padilla, 11 N. M. 553, 70 Pac. 566, where brother recovered judgment in court of claims on Indian depredation claim for prop- erty owned by himself and sister, and before judgment promised to give sister her share, sister may recover; Monahan v. Monahan, 77 Vt. 143, 59 Atl. 172, 70 L. R. A. &35, where property put in defend- ant's name without his knowledge to avoid taxation, it is impressed with trust in favor of owner; Overholt v. Burbridge, 28 Utah, 416, 79 Pac. 563, bucket-shop accepting margin to protect short sale to one buying long and who paid bucket-shop, for seller, difference between market and sale price, cannot defend suit by seller for profit on ground of illegality of transaction. See 99 Am. St. Rep. 327, note. Distinguished in Smythe v. Evans, 209 111. 383, 70 N. E. 909, where corporation let contract for construction under supervision of engineer, contracts between engineer and contractor for division of profits is unenforceable; dissenting opinion in Stewart v. Wright, 147 Fed. 345, majority permitting recovery of money by one who was induced to participate in fake footrace and was given "double cross." Syl. 2 (VI, 381). Purchase of partner's interest — Good faith. Approved in Shevlin v. Shevlin, 96 Minn. 413, 105 N. W. 263, applying rule in holding that burden of proof to show no undue in- fluence was on elder brother with respect to stock transfer by drunken and financially embarrassed brother. 2 Wall. 87-96, 17 L. 836, BADGER v. BADGER. Syl. 1 (VI, 382). Laches barring equitable relief. Approved in dissenting opinion, Werner Co. v. Encyclopedia etc. Co., 134 Fed. 1024, majority holding, in suit for infringement of copy- right where complainant had no knowledge of infringing articles until less than eighteen months before suit, suit not barred by laches. Syl. 2 (VI, 384). Gross laches bars equitable relief. Approved in Frank v. Butler Co., 139 Fed. 124, suit in equity for enforcement of aid bonds barred after lapse of twenty years from re- fusal of registration; Kansas City etc. Ry. Co. v. Stevenson, 135 387 Notes on U. S. Eeports. 2 Wall. 106-122 Fed. 557, where defendant on resigning railroad presidency retained title to property donated to aid railroad extension, claiming same as his own, nine years' delay after knowledge in suing to establish trust bars suit; Eyan v. Woodin, 9 Idaho, 531, 75 Pac. 262, applying rule to suit to set aside sheriff's deed brought five years after its execution; Patterson v. Hewitt, 11 N. M. 18, 23, 66 Pac. 556, 558, 55 L. R. A. 658, applying rule in suit to enforce trust in mining claims; Bryan V. Dupoyster, 130 Fed. 87, 64 C. C. A. 417, arguendo. Syl. 3 (VI, 386). Pleading excuse for laches. Approved in Klcinclaus v. Dutard, 147 Cal. 250, 81 Pac. 518, apply- ing rule in suit to enforce express trust; Succession of Dauphin (Choppin V. Dauphin), 112 La. 140, 36 So. 300, applying rule in suit to annul judgment for fraud; Patterson v. Hewitt, 11 X. M. 42, 66 Pac. 564, 55 L, E. A. 650, applying rule in suit to enforce trust in mining claims. 2 Wall. 106-110, 17 L. 905, HUMISTON v. STAINTHORP. Syl. 1 (VI, 387). Final decree — Reference for account. Approved in Ex parte National Enameling etc. Co., 201 U. S. 160, 50 L. 708, 26 Sup. Ct. 404, denying cross-appeal by complainant from decree granting injunction against infringement of valid claims and dismissing bill as to those held invalid; Australian Knitting Co. v. Gormly, 138 Fed. 103, decree sustaining validity of patent and award- ing injunction against infringement, and referring question of damages to master, being interlocutory, is not conclusive of validity of patent in subsequent suit prior to rendition of final decree, 2 Wall. 110-122, 17 L. 857, MURRAY v. LARDNER. Syl. 2 (VI, 388). Presumptions on transfer of note before maturity. Approved in First Nat. Bank v. Moore, 148 Fed. 957, 958, following rule; dissenting opinion in Williams v. Neely, 134 Fed. 18, 69 L. R. A. 252, 67 C. C. A. 171, arguendo. See 103 Am. St. Rep. 984, note. Syl. 3 (VI, 389). Notes— Bona fides— Suspicion of defect. Approved in Fillebrown v. Hayward, 190 Mass. 480, 77 N. E. 47, where director sold his stock to another knowing that sale gave him control of company, and payments made by check signed by purchaser as treasurer, seller not charged with notice of misappropriation of funds by treasurer; Unaka Nat. Bank v. Butler, 113 Tenn. 585, 83 S. W. 658, where check was indorsed in blank and lost, merchant accepting same from customer unknown to him, but supposed to be payee, was bona fide purchaser; Bank v. Ohio Valley etc. Co., 57 W. Va. 630, 50 S. E. 882, 70 L. R. A. 312, applying principle where bank discounted note indorsed in blank by principal, with knowledge that holder was agent; dissenting opinion in Peirson v. McNeal, 1.37 Mich. 177, 100 N. W. 465, majority holding assignments of mortgages delivered to assignee prior to assignor's death. 2 Wall. 123-198 Notes on U. S. Reports, 388 Sjl. 4 (VI, 391). Negotiable instruments — Vendor's lack of title. Approved in Massachusets National Bank v. Snow, 187 Mass. 163, 72 N. E. 960, where note was indorsed in blank by payee and stolen from him by maker, who discounted it at bank, latter may collect it. 2 Wall. 123-134, 17 L. 859, HECKERS v. FOWLER. Syl. 2 (VI, 394). Reference of cause. Approved in Burrell v. United States, 147 Fed. 49, where parties .1 greed to trial before arbitrators, federal court may enter judgment on award. Distinguished in Swift v. Jones, 145 Fed. 493, circuit judge cannot in action at law, with consent of parties, order trial before special master. 2 Wall. 160-177, 17 L. 922, FREEBORN v. SMITH. Syl. 2 (VI, 396). Admission of states — Pending causes. Approved in Wallace v. Adams, 143 Fed. 726, upholding 32 Stat. 641, whereby citizenship court was created and empowered to review final judgments of federal courts under 29 Stat. 339, as against liti- gants who had not procured allotments prior to its passage. Syl. 4 (VI, 397). Correspondence between partners and agent. Approved in Inman Bros. v. Dudley etc. Lumber Co., 146 Fed. 455, I'^tter from agent to principal reporting interview between agent and third part}-- is inadmissible against latter. 2 Wall. 177-190, 17 L. 822, SHEETS v. SELDEN. Syl. 3 (VI, 398). "Month" means calendar month. Approved in Brock v. Kirkpatrick, 72 S. C. 495, 52 S. E. 593, con- struing code provision relative to publication of notice of hearing of application for discharge of executor. Syl. 4 (VI, 398). Computation of time. Approved in Maxwell v, Jacksonville etc. Co., 45 Fla. 455, 34 So. 265, applying rule to time for taking testimony in equity suits under rule of court. 2 Wall. 191-198, 17 L. 839, CHITTENDEN v. BREWSTER. Syl. 1 (VI, 399). Nonappellant cannot complain of error. Approved in Field v. Barber Asphalt Paving Co., 194 U. S. 621, 48 L. 1153, 24 Sup. Ct. 784, cross-appeal to review only nonfederal ques- tions decided against defendant may be taken directly to supreme court from circuit court. Syl. 4 (VI, 400). Assignment for creditors — Priority of jurisdiction. Approved in Louisville Trust Co. v. Knott, 130 Fed. 825, 65 C. C. A. 158, where, after expiration of franchise, assets of corporation de- livered to trustee as liquidator and minority stockholders filed state 389 Notes on U. S. Reports. 2 Wall. 200-237 suit for inspection of books, state court had jurisdiction prior to fed- eral court in subsequent creditor's suit based on collusive judgment. 2 Wall. 200-210, 17 L. 793, BANK TAX CASE. Syl. 1 (VI, 401). State tax on capital stock. Approved in Delaware etc. R. R. Co. v. Pennsylvania, 198 U. S. 354, 49 L. 1082, 25 Sup. Ct. 669, including, in appraisement of capital stock of domestic corporation, value of coal mined within state but situated elsewhere, is illegal; Scottish Union etc. Ins. Co. v. Bowland, 19G U. S. 626, 49 L. 626, 25 Sup. Ct. 345, bonds in which foreign insurance company is required to invest portion of capital stock under Ohio statutes are personal property within tax laws. Syl. 2 (VI, 401). State tax on bank's government bonds. Approved in First National Bank v. Douglas Co., 124 .Wis. 21, 102 N. W. 317, real estate belonging to national bank acquired with and constituting part of capital is exempt from taxation; dissenting opinion in South Carolina v. United States, 199 U. S. 466, 50 L. 272, 26 Sup. Ct. 110, majority holding United States may exact liquor license tax from state's dispensing agents. Distinguished in Hibernia Savings etc. Soc. v. San Francisco, 200 U. S. 313, 50 L. 496, 26 Sup. Ct. 265, United States treasury checks for accrued interest on government bonds are taxable by state in hands of owner; South Carolina v. United States, 199 U. S. 452, 50 L. 266, 26 Sup. Ct. 110, United States may exact liquor license tax from state's dispensing agent. 2 Wall. 210-217, 17 L. 783, FLORENTINE v. BARTON. Syl. 2 (VI, 404). Presumptions — Sale of decedent's realty. Approved in Threadgill v. Colcord, 16 Okl. 470, 85 Pac. 710, pur- chaser at master's sale under decree in suit to which he is party can- not collaterally attack decree. 2 Wall. 218, 17 L. 755, COOKE v. UNITED STATES. Syl. 1 (VI, 406). Amount in controversy — Subsequent reduction. Approved in Kirby v. American Soda etc. Co., 194 U. S. 146, 48 L. 913, 24 Sup. Ct. 619, upholding federal jurisdiction where cross-bill seeks recovery of $1,700 on contract for exchange of goods where original bill dismissed on complainant's motion prayed cancellation of agreement to pay $2,025, in consideration of exchange. 2 Wall. 219-237, 17 L. 788, SMITH v. UNITED STATES. Syl. 1 (VI, 219). Variation in agreement — Subscribed by surety. Approved in Jeigler v. Hallahan, 131 Fed. 209, 66 C. C. A. 1, surety for lessee under contract binding tenant to pay rent and deliver premises in good condition at end of term is discharged by modifica- tion of lease by provision for termination of lease by destruction of premises. 2 Wall. 237-328 Notes on U. S. Eeports. 390 2 Wall. 237-251, 17 L. 827, MILLEK v. SHEERY. Syl. 3 (VI, 410). Compelling conveyance of property out of juris- diction. Approved in Fuller v. Horner, 69 Kan. 470, 77 Pac. 89, creditor's suit, after lapse of limitations, to subject property bought with pro- ceeds of fraudulent sale is barred though proceeds first invested in another state. Syl. 5 (VI, 410). Purchaser pendente lite. Approved in Bridger v. Exchange Bank, 126 Ga. 829, 56 S. E. 101, lis pendens begins from filing of cross-complaint as to matters therein alleged. 2 Wall. 252-258, 17 L. 785, MARINE BANK v. FULTON BANK. Syl. 1 (VI,-411). Relation between bank and depositor. Approved in Burton v. United States, 196 U. S. 302, 49 L. 488, 25 Sup. Ct. 243, averment charging receipt of checks at St. Louis and payment thereon there not supported by evidence showing check drawn on St. Louis bank received by defendant in Washing- ton and there deposited in bank for collection; Board of Commrs. V. Patterson, 149 Fed. 233, where cashier of insolvent bank was county treasurer and deposited taxes in bank, county could recover same from receiver plus proceeds of loans of such taxes made by bank; Schinotti v. Whitney, 130 Fed. 781, money deposited in New York at interest subject to check is "money lent" within Civ. Code La., art. 3538, prescribing limitations for recovery thereof; Retan v. Union Trust Co., 134 Mich. 8, 95 N. W. 1008, deposits in bank made by county clerk of deposits in court are not special deposits en- titled to priority on failure of bank; Bank of Blackwell v. Dean, 9 Okl. 631, 60 Pac. 228, determining whether deposit was general or special. 2 Wall. 283-312, 17 L. 725, BRONSON v. LA CROSSE RY. CO. Syl. 3 (VI, 418). Defense by stockholders where directors re- fuse. See 97 Am. St. Rep. 41, note. Distinguished in Bowling Green Tr. Co. v. Virginia etc. R. Co., 132 Fed. 924, individual holders of small minority of railroad bonds cannot intervene in foreclosure to displace trustee, who is plain- tiff, where no fraud on his part is charged. 2 Wall. 320-328, 17 L. 817, CASE v. BROWN. Syl- 1 (VI, 420). Patents- — Claim for combination. Approved in Cortis v. American Street Lamp etc. Co., 145 Fed. 519, Cortis lamp patent No. 613,648, not infringed by mantle sup- porting device of Momand patent No. 781,013; American Crayon 391 Xotes ou U. S. Keports. 2 Wall. 328-474: Co. V. Sexton, 139 Fed. 5G6, construing Liedke patent No. 470,051, for crayon-making machine. 2 Wall. 328-349, 17 L. 871, HARVEY v. TYLER. Syl. 1 .(VI, 421). No exceptions to instructions as whole. Approved in Montana Min. Co. v. St. Louis etc. Co., 147 Fed. 906, where judge, after instructing .jury, but before sending them out, retired to chambers and there heard and allowed exceptions, he need not thereafter allow exceptions; Mountain Copper Co. v. Van Bureu, 133 Fed. 8, 66 C. C. A. 151, it is improper to permit exceptions to be noted in presence of jury and specification of objection to be noted in the record later; Steel Rail Supply Co. v. Baltimore etc. Ry. Co., 130 Fed. 434, 64 C. C. A. 635, exception to so much of charge as states that only question for consideration is certain ques- tion (loos not support assignment based on failure to submit an- other question. Syl. 4 (VI, 422). Collateral attack — .Judgment of court of general jurisdiction. Approved in Fowler v. Jenks, 90 Minn. 78, 95 N. W. 889, appoint- ment of new trustee under Bankr. Act, § 44, on reopening bankrupt estate, without prior action on part of creditors, is not invalid on collateral attack. Syl. 5 (VI; 423). Judgment — Court of general jurisdiction — Spe- cial powers. Distinguished in Taylor v. Huntington, 34 Wash. 458, 75 Pac. 1105. j'udgment of court of general jurisdiction foreclosing tax lien can- not he vacated on ground that affidavit of publication did not show holder of delinquency certificate had paid all accrued taxes. 2 Wall. 450-474, 17 L. 805, PACIFIC MAIL STEAMSHIP CO. v. JOLIFFE. Syl. 1 (VI, 432). Quasi contract for half pilotage. Approved in In re United Button Co., 140 Fed. 502, claim for un- liquidated damages resulting from injury to property not reduced to judgment cannot be liquidated under Bankr. Act, § G3b. Syl. 3 (VI, 432). Repeal of statute — Quasi contracts. Approved in Eidman v. Tilghman, 136 Fed. 143, 69 C. C. A. 139, legacies left by testator, dying within one year prior to amend- ment of 1901 to sections of war revenue act taxing inheritances are not taxable thereunder. Syl. 4 (VI, 434). Repealing statute same as repealed. Approved in Campbell v. California, 200 U. S. 92, 50 L. 387, 26 Sup. Ct. 182, enactment of new inheritance tax law after decision of state court that prior act did not deny equal protection does not convert federal question into moot one; Pratt v. Dudley, 73 Ark. 541, 84 S. W. 783, under repealing act of 1901, relating to levee ■*' . 2 Wall. 501-550 Notes on U. S. Eeports. 392 districts, commissioners created tliereby could recover from county- treasurer moneys collected by him under levee act of 1893; Wilson V. Head, 184 Mass. 517, 69 N. E. 318, construing amendment of 1901 to act of 1890, providing for recovery of payments made on sales on margin. 2 Wall. 501-510, 17 L. 851, LEVY COURT v. CORONER. Syl. 1 (VI, 437). Actions against municipality. Distinguished in Duncan v. Willits, 4 Pcnne. (Del.) 496, 57 Atl. 370, action ex contractu does not lie against county. 2 Wall. 510-525, 17 L. 900, RAILROAD CO. v. SOUTLER. Syl. 1 (VI, 438). Following mandate of appellate court. Approved in Ex parte Marks, 136 Fed. 170, 69 C. C. A. 80, where mandate directed trial court to take such further proceedings as, ac- cording to right and justice, ought to be had, trial court could cor- rect mistake in computation of interest. 2 Wall. 525-538, 17 L. 765, UNITED STATES v. STONE. (VI, 439.) Miscellaneous. Cited in Hollister v. United States, 145 Fed. 779, as to effect of scire facias. Syl. 2 (VI, 440). Land officer cannot cancel predecessor's acts. Approved in Sage v. Rudnick, 91 Minn. 334, 100 N. W. 108, pend- ency before Interior Department of asserted claim to public land does not suspend running of limitations in favor of adverse claim. Syl. 4 (VI, 441). Setting aside patent in equity. Approved in United States v. Laam, 149 Fed. 583, government may sue in equity to cancel patent issued through mistake under home- stead law to tract selected by state as school land where selection had not yet been approved; dissenting opinion in United States v. Ju Toy, 198 U. S. 277, 49 L. 1050, 25 Sup. Ct. 644, majority holding decision of Secretary of Labor affirming denial of immigration offi- cials of right* of Chinese to land is conclusive on federal courts on habeas corpus. Syl. 6 (VI, 442). Lands in reservation not patentable. Approved in Behrends v. Goldsteen, 1 Alaska, 524, setting apart by Secretary of Navy, and use by department for naval purposes, of public lands, constitutes valid reservation by executive. 2 Wall. 538-550, 17 L. 833, THE ANN CAROLINE. Syl. 6 (VI, 443). Admiralty — Allowance of interest. Distinguished in Burrows v. Lownsdale, 133 Fed. 251, 66 C. C. A. 650, interest not allowed on damages awarded in admiralty for per- sonal injury. 393 Notes on U. S. Eeports. 2 Wall. 550-759 2 Wall. 550-561, 17 L. 862, THE MOENING LIGHT. Syl. 2 (VI, 443). Collision — Inevitable accident defined. Approved in The Jumna, 149 Fed. 172, exonerating vessels for series of collision in East river following parting of towboat 's hawser; Bleakley v. New York, 139 Fed. 808, injury to scow by floating ir-e, left on side of pier in river at place exposed and generally regarded as dangerous when ice moving, not caused by inevitable accident; The Cornell, 134 Fed. 697, applying rule where tows were driven together by sudden and severe windstorm when passing at proper distance; Kenova Trans. Co. v. Monongahela Kiver etc. Coke Co., 56 W. Va. 73, 48 S. E. 846, where during fog in river in night towboat with barges drifted down and struck pier and one of barges cut loose and injured wharf-boat, injury caused by inevitable accident. 2 Wall. 591-605, 17 L. 812, BEAD v. BOWMAN. Syl. 1 (VI, 447). Liability of sureties. Approved in American Surety Co. v. Campbell & Zell Co., 138 Fed. 533, afl&rming Campbell & Zcll Co. v. American Surety Co., 129 Fed. 493, holding bond to discharge attachment in action by corporation's receiver is liable to corporation where declaration had been amended substituting corporation for receiver. 2 Wall. 609-649, 17 L. 886, MINNESOTA CO. v. ST. PAUL CO. Syl. 2 (VI, 448). Determining whether bill original or supple- mental. Approved in O'Connor v. O'Connor, 146 Fed. 997, suit in equity to set aside dismissal of judgment law action, being ancillary, service may be made on parties, though they reside outside district; Campbell V. Golden Cycle Min. Co., 141 Fed. 613, applying rule where minority stockholders filed bill to enjoin action at law against corporation on ground of conspiracy between plaintiff and controlling stockholders; Manning v. Berdan, 132 Fed. 384, bill in equity by nonresident de- fendant, to enjoin prosecution of law action, against plaintiff there- in and nonresident corporation, which is not party to law action, not being ancillary, must be brought in district of residence of plaintiff or defendant; Nelson v. Meehan, 2 Alaska, 494, where judg- ment obtained by fraud was appealed and judgment affirmed, court cculd vacate judgment where pending final disposition of case in dis- trict court defendants, by affidavit, disclosed fraud. 2 Wall. 728-759, 17 L. 768. LOVrLEE v. BANGS. Syl. 4 (VI, 452). Stipulation in charter-party as warranty. Approved in Eoss-Meehan Foundry Co. v. Eoyer Wheel Co., 113 Tenn. 376, 83 S. W. 168, 68 L. E. A. 829, contract to make and deliver for three years all castings required by defendant, each deliver}^ to be paid for within sixty days, may be terminated on failure to make payments as provided. Ill WALLACE. 3 Wall. 1-10, 18 L. 129, LOVEJOY v. MURRAY. Syl. 3 (VI, 455). Unsatisfied joint judgment as bar. See 111 Am. St. Eep. 287, note. Syl. 4 (VI, 456). Who are joint trespassers. Approved in Saxlehner v. Eisner, 140 Fed. 941. where executive officers of corporations controlled defense in infringement suit against corporation, suit lies to recover of them individually damages therein decreed. Syl. 5 (VI, 456). Satisfied judgment as bar to second recovery. Approved in Carey 1'. Bilby, 129 Fed. 205, 63 C. C. A. 361, where one claiming damages against two jointly for fraudulent misrepresentations in sale accepted money from one and executed release, reserving right to sue other, release no defense to action against other; Louisville etc. Mail Co. v. Barnes, 117 Ky. 874, 876, 111 Am. St. Eep. 280, 281, 79 S. W. 264, 64 L. R. A. 574, acceptance of money from one joint tort- feasor in part satisfaction and in consideration of his release from further payment does not preclude recovery against other. Syl. 7 (VI, 457). Unsatisfied judgment for conversion. Approved in Moss v. Marks, 70 Neb. 704, 97 N. W. 1032, dismissal of action for conversion is no bar to replevin. Syl. 8 (VI, 458). When third party concluded by judgment. Approved in Harrington v. Atlantic etc. Tel. Co., 143 Fed. 337, majority stockholder who controls affairs of and transferred to cor- poration patents in violation of trust, is jointly liable with it for in- fringement; Australian Knitting Co. v. Gornily, 138 Fed. 97, 98, manu- facturer of infringing article who assists purchaser in defending in- fringement suit, but who does not control defense, is not concluded by judgment; Friend v. Ralston, 35 Wash. 433, 77 Pac. 798, judgment by owner of building against contractor for breach of contract con- cludes surety. 3 Wall. 20-37, 18 L. 125, THE PLYMOUTH. Syl. 1 (VI, 459). Admiralty — Locality of torts. Approved in The San Rafael, 134 Fed. 752, railroad operating ferry- boat may limit liability for injuries to passenger by collision of boat though passenger carried on through ticket. [394] 395 Notes on U. S. Eeports. 3 Wall. 37-96 Syl. 2 (VI, 460). Admiralty — Maritime torts. Distinguished in United States v. Ev'ans, 195 U. S. 364, 368, 49 L. 236, 238, 25 Sup. Ct. 46, upholding admiralty jurisdiction over libel against vessel for collision with beacon built on piles in water. 3 Wall. 37-46, 18 L. 50, THE KIMBALL. Syl. 4 (VI, 462). Charter-party binding ship and cargo. Cited in Portland etc. Mills Co. v. Portland etc. S. S. Co., 145 Fed. 693, arguendo, Syl. 5 (VI, 462). Advance freight money — Failure of carriage. Distinguished in Burn Line v. United States & Australia S. S. Co., 150 Fed. 428, charter freight not recoverable where ship lost and bills of lading provided that freight prepaid should be considered as earned whether ship lost or not. Syl. 7 (VI, 462). Note does not discharge debt. Approved in The Winnebago, 141 Fed. 951, giving of notes by owner of vessel under construction to materialman to be used by him to raise funds is not payment depriving him of lien; Pflueger v. Lewis etc. Mach. Co., 134 Fed. 36, 67 C. C. A. 102, where bankrupt gave checks in payment of goods under agreement to provide funds in few days, seller entitled to original rights under sale; Davis v. Thomas, 66 Neb. 29, 32, 92 N. W. 1S7, 189, where part payment made and new note given for remainder and old note surrendered, but mortgage re- tained, mortgage was security for renewal note. 3 Wall. 51-83, 18 L. 137, THE BINGHAMPTON BRIDGE. Syl. 3 (VI, 466). Charter rights against state not presumed. Approved in Blair v. Chicago, 201 U. S. 472, 50 L. 831, 20 Sup. Ct. 427, Illinois amendatory act of 1865 did not extend right to use streets of Chicago for street railroad purj^oses to ninety-nine years, without reference to time limit fixed by city; Knoxville Water Co. V. Knoxville; 200 U. S. 35, 50 L. 359, 26 Sup. Ct. 227, municipal grant of waterworks franchise does not deprive city of right to construct own waterworks; Story v. Woolverton, 31 Mont. 355, 78 Pac. 590, congressional act granting state land of former reservation did grant right to use water of stream from which government had taken water by means of ditch across other lands. 3 Wall. 93-96, 18 L. 33, SHEBOYGAN COUNTY v. PARKER. Syl. 3 (VI, 470). Commissioners to issue aid bonds not officers. Approved in Daily Leader v. Cameron, 3 Okl. 682, 41 Pac. 636, Appro- priation Act of 1895, § 25, does not create office of public printer. 3 Wall. 97-145 Notes on U, S. Eeports. 396 3 Wall. 97-105, 18 L. 49, SPARROW v. STRONG, Syl. 1 (VI, 471). Appeal — Ifismissal — Record not filed in time. Approved in Perkins v. Boyd, 17 Colo. App. 448, 68 Pac. 1062, failure to file record within time specified by Code, § 389, not ground for dis- missal where filed prior to motion to dismiss. 3 Wall. 107-114, 18 L. 170, YORK CO. v. CENTRAL R. R. CO. Syl. 1 (VI, 473). Contract restricting carrier's liability. Approved in Cau v. Texas etc. Ry. Co., 194 U. S. 430, 48 L. 1056, 24 Sup. Ct. 663, following rule; Ficklin v. Wabash R. R. Co., 117 Mo. App. 226, 93 S. W. 848, where contract valued cattle at $50 per head, and provided that valuation was made to obtain reduced rate and limit carrier's liability, and there was no other rate for cattle of such valu- ation, carrier's liability not limited. Syl. 6 (VI, 477). Consideration — Contract limiting carrier's lia- bility. Approved in Cau v. Texas etc. Ey. Co., 194 XT. S. 431, 48 L. 1057, 24 Sup. Ct. 663, following rule; Arthur v. Texas etc. Ry. Co., 139 Fed. 129, upholding sufficiency of consideration expressed in bill of lading for carriage of cotton to support provision exempting carrier from liability for loss by fire. 3 Wall. 114-145, 18 L. 116, CLIQUOT'S CHAMPAGNE. Syl. 4 (VI, 479). Evidence to prove market value. Approved in American Bonding Co. v. Regents of Idaho University, 11 Idaho, 192, 81 Pac. 614, admitting testimony of witness engaged in plumbing business for over five years as to difference in price of ma- terials used in building and kind contract calls for, though he fixes difference from wholesaler's catalogue; McCrary v. Chicago etc. R. R. Co., 109 Mo. App. 572, 83 S. W. 83, evidence by shipper as to price paid for cattle at certain market on certain day not hearsay, though he was present only during part of day; Cameron Mill etc. Co. v. Anderson. 34 Tex. Civ. 232, 78 S. W. 972, physician who has never employed nurse, and has no personal knowledge of compensation of "nurses, can- not testify as to reasonable and customary compensation of pro- fessional nurse. Syl. 9 (VI, 480). Seizures— Burden of proof. Approved in Low Foon Yin v. United States etc. Commr., 145 Fed. 796, upholding provision of Chinese Exclusion Act of 1892, placing burden of proof of right of Chinese without certificate to remain in United States on him. Syl. 12 (VI, 481). Revenue laws not penal. Approved in Scow No. 36, 144 Fed. 934, vessel used in depositing refuse matter in navigable waters is subject to penalty imposed by Comp. St. 1901, pp. 3542, 3544, though act was without knowledge of 397 Notes on U. S. Reports. 3 ^Va]l. 140-11)0 owners; State v. Western Union Tel. Co., 96 Minn. 19, 104 X. W. 570, upholding Laws 1901, p. 251, authorizing taxation of tangible and intangible property of telegraph companies as system. 3 Wall. 145-149, 18 L. 121, FENNEESTEIN'S CHAMPAGNE. Syl. 1 (VI, 482). Admissibility of letters to show market value. Approved in United States v. Greene, 146 Fed. 795, book entries regularly made and contemporaneously with transactions are admis- sible in criminal prosecution; Cameron Mill etc. Co. v. Anderson, 34 Tex. Civ. 232, 78 S. W. 972, physician who is not nurse and has never employed one, and has no personal knowledge of their compensation, cannot testify as to their reasonable and customary compensation. 3 Wall. 164-174, 18 L. 85, THE LOUISIANA. Syl. 1 (VI, 485). Collision — Inevitable accident — Drifting vessel. Approved in The William E. Reis, 143 Fed. 1015, where moored vessel broke mooring after rise in river caused by flood and collided with another vessel, she was liable, lines not being properly adjusted; Eebstoek v. Gilchrist Transp. Co., 132 Fed. 177, holding where vessel moored away from channel and opposite bend in river, she was not in fault for collision with towed vessel which failed to make turn; The Drunieraig, 133 Fed. 804, breaking of ship from moorings and her drifting into collision not inevitable accident where there was warning of approach of storm, requiring putting out of more lines. Syl. 4 (Vr, 486). Collision — Inevitable accident — Breaking of moor- ings. Approved in Bleakley v. New York, 139 Fed. 808, crushing of vessel by floating ice not caused by inevitable accident where left on ex- posed side of pier, which was regarded as dangerous when ice moving in river. 3 Wall. 175-196, 18 L. 186, BLACKBURN v. CRAWFORDS. Syl. 4 (VI, 487). Baptismal register as evidence. Approved in Collins v. German-American etc. Life Assn., 112 Mo. App. 219, 86 S. W. 894, following rule; Casley v. Mitchell, 121 Iowa, 98, 96 N. W. 726, admitting register of parish in England to prove marriage recorded therein by vicar. Syl. 5 (VI, 487). Transcript of court record as evidence of illegiti- macy. Approved in Sorensen v. Sorensen, 68 Neb. 496, 497, 98 N. W. 839, decree denying alleged widow was decedent 's widow in proceeding for nomination of administrator not binding on one claiming to be legitimate son of woman and decedent, on petition for distribution. Syl. 8 (VI, 488). Privilege — Statements by testator to attorney. Approved in Ex parte Gfeller, 178 Mo. 268, 77 S. W. 558, decedent's attorney in discovery proceedings in matter of estate may be asked 3 Wall. 196-275 Notes on U. S. Eeports. 398 when lie last saw certain securities belonging to decedent, and wbetlior at her death he had any money belonging to her. Syl. 9 (VI, 488). Waiver of privilege by client. Approved in Denuzio v. Scholtz, 117 Ky. 192, 77 S. W. 716, where attorney employed to incorporate business was told by owner that he would give employer stock, and on employment to prepare owner 's will was told stock had been given, he may testify thereto. 3 Wall. 196-210, 18 L. 243, BLOSSOM v. EAILEOAD CO. Syl. 1 (VI, 489). Unaccepted highest bid — Eight to confirmation. See 97 Am. St. Eep. 661, note. Syl. 6 (VI, 491). Judicial sales — Discretion of officers to adjourn. See 97 Am. St. Eep. 655, note. 3 Wall. 210-214, 18 L. 180, TUENPIKE CO. v. THE STATE. Syl. 1 (VI, 491). Nonexclusive corporate privileges. Approved in Knoxville Water Co. v. Knoxville, 200 U. S. .37, 50 L. 361, 26 Sup. Ct. 24, municipal grant of waterworks franchise does not devest city of power to construct own system. 3 Wall. 225-2.31, 18 L. 194, THE CONVOY'S WHEAT. Syl. 3 (VI, 493). Obstacle to delivery to connecting carrier — Notice. Approved in Fisher v. Boston etc. E. E. Co., 99 Me. 343, 105 Am. St. Eep. 283, 59 Atl. 534, 68 L. E. A, 390, following rule. 8 Wall. 236-240, 18 L. 48, TEEEITOEY v. LOCKWOOD. Syl. 2 (VI, 494). Quo warranto — Parties. Approved in dissenting opinion in McDaid v. Territory, 1 Okl. 112, 30 Pac. 444, majority upholding territorial court's jurisdiction to issue mandamus to compel townsite trustees to issue deed to party they have decided is entitled thereto, and from whom they withhold deed merely because there is right to appeal from their decision. 3 Wall. 257-268, 18 L. 271, NEWELL v. NOETON AND SHIP. Syl. 1 (VI, 496). Admiralty — Dismissal as to part of defendants. Approved in The San Eafael, 141 Fed. 280, where exceptions to libel against vessel and owner sustained for misjoinder, libel may be amended to declare against vessel alone; Graham v. Oregon etc. Nav. Co., 134 Fed. 693, upholding amendment of libel in admiralty to show jurisdiction. 3 Wall. 268-275, 18 L. 165, THE OTTAWA. S;,-!-!. 2 (VI, 498). Collision — Vigilant lookout necessary. Approved in Brigham v. Luckenbach, 140 Fed. 326, applying rule where master was lookout and was in pilot-bouse; The Sitka, 132 Fed. 399 Notes on U. S. Keports. 3 Wall. 291-320 8G4, holding steamer leaving anchorage at night liable for collision with steamer passing with tow, where steamer's lookout not vigilant; The Tarpon, 132 Fed. 278, applying rule where steamer collided with drifting scow; The Echo, 131 Fed. 631, master of steamer on roof of boat is not proper lookout; The Dauntless, 129 Fed. 722, 64 C. C. A. 243, holding steamer at fault for collision in river with launch. 3 Wall. 294-304, 18 L. 38, HAVP^MEYER v. IOWA COUNTY. Syl. 2 (VT, 499). Impairment of contracts by decisions. Approved in Commrs. of Onslow Co. v. Tollman, 145 Fed. 763, fed- eral courts put own construction on state constitution whore at time of issuance of county aid bonds there was no state construction of constitutional provision relating thereto. 3 Wall. 310-315, 18 L. 179, THE CRANTTE STATM. Syl. 1 (VI, 502). Fault whore barge moored out of track. Distinguished in The Millville, 137 Fed. 975, vessel moored at end of pier on dark night in narrow channel constantly traversed by craft and not having lights, cannot recover for collision with passing tow. Syl. 2 (VI, 502). Collision — Fault where moored vessel struck. Approved in The Degama, 150 Fed. 324, fact that moving vessel colliding with moored barge not exonerated because being handled by tugs controlling her movements, unless defense pleaded and proved; Rebstock v. Gilchrist Transp. Co., 132 Fed. 177, vessel moored at side of channel opposite bend not liable for collision with tow where she was not in channel. Syl. 3 (VI, 503). Damages — Cost of repairs. Approved in The Mobila, 147 Fed. 883, measure of damages for total loss of vessel by collision is market value at time of loss determinable from opinions of experts. 3 Wall. 315-320, IS L. 76, THE SUFFOLK CO. v. HAYDEX. Syl. 1 (VI, 504). Abandonment of patent — Second application. Approved in Kinnear Mfg. Co. v. Wilson, 142 Fed. 973, where, pending application for patent and after notice of rejection of one of claims, applicant applied for another patent in which he incor- porated claim substantially like rejected one, and after allowance of last he canceled rejected claim of first, there was no abandonment of claim as allowed; Thomson-Houston Elec. Co. v. Black River Tr. Co., 135 Fed. 764, 68 C. C. A. 461, upholding Van Depoeli reissue No. 11,872, for traveling contract for electric railroads. Syl. 2 (VI, 504). Patents — Second application. Approved in Dodge Coal Storage Co. v. New York etc. R. R. Co., 139 Fed. 982, holding void Priz & Beaumont patents Nos. 668,960 and 688,111, for coal storage apparatus granted on division of same application- 3 Wall. 327-347 Notes on U. S. Beports. 400 Syl. 5 (VI, 505). Infringement — Damages — Value of use. Approved in Brown v. Lanyon, 148 Fed. 839, action at law not maintainable for sole purpose of recovering profits which infringer of patent has made; Dolen v. City of Boston, 138 Fed. 409, owner of patent may recover from user of infringing device as profits amount saved by substitution of such device. 3 Wall. 327-332, 18 L. 177, THOMPSON v. LEE COUNTY. Syl. 4 (VI, 510). Retrospective curative bond acts. Approved in Whitlock v. Hawkins, 105 Va. 259, 53 S. E. 406, upholding act of 1906, confirming assessments made in compliance with act of 1903. 3 Wall. 332-334, 18 L. 42, MINNESOTA CO. v. NATIONAL CO. Syl. 1 (VI, 513). Law not changed where court's personnel changed. Approved in Lockhart v. Leeds, 12 N. M. 164, 76 Pac. 314, judg- ment against plaintiff on bill to declare mine location void for fraud and collusion by defendants and violation of agreement to locate claim for plaintiff bars suit to have property declared to be held in trust. (VI, 513). Miscellaneous. Cited in State v. Jennings, 47 Fla. 321, 35 So. 993. 3 Wall. 334-347, 18 L. 257, BUCK v. COLBATH. Syl. 2 (VI, 514). Custodia legis- — Property seized under process. Approved in In re Moody, 131 Fed. 529, bankruptcy court may, by receiver, take property in possession of adverse claimant, which is alleged to have been fraudulently transferred, and may determine question of ownership; Tobin v. Central Vermont Ry. Co., 185 Mass. 341, 70 N. E. 433, where railroad's assets sold by federal receiver, state court has no jurisdiction of action for personal injuries sus- tained by employee of receiver; French v. White, 78 Vt. 96, 62 Atl. 36, 2 L. R. A. (N. S.) 804, property vesting in bankruptcy trustee is not subject to state attachment. Syl. 6 (VI, 517). Process directing seizure — Liability of officer. Approved in McKnight v. United States, 130 Fed. 666, 65 C. C. A. 37, sheriff liable for levying attachment against man on Indian wife's cattle on reservation which bore her own and Indian De- partment's brands, though running with husband's cattle. Syl. 8 (VI, 519). Concurrent jurisdiction — Priority. Approved in Guaranty Trust Co. v. North Chicago St. R. Co., 130 Fed. 807, 65 C. C. A. 65, pendency in federal court of cred- itor's suit against street railway for which receiver appointed, but whose road is operated under lease by federal receiver of lessee does not bar state to enjoin delivery of new lease. 401 Notes on U. S. Reports. 3 Wall. 3S2-407 Syl. ]0 (VI, 520). State suit against marshal- — Wrongful seizure. Approved in Guaranty Trust Co. v. North Chicago St. R. Co., 130 Fed. 805, 806, 65 C. C. A. 65, pendency in federal court of creditor's suit against street railway for which receiver appointed, but whoso road is operated unulation for return of account is not of essence of contract. 5 Wall. 509-517, 18 L. 524, INSURANCE CO. v. CHASE. Syl. 4 (VI, 734). Insurance — Specification of interest by owner. Approved in American Cer. Co. v. Western Assur. Co., 148 Fed. 79, where policy insured A against loss on certain property, loss payable to B as his interest might appear, A was insured. 5 Wall. 541-545, 18 L. 540, MERCHANTS' INSURANCE CO. v. RITCHIE. Sj'l. 1 (VI, 73G). Suit between citizens of same state. Approved in Thomas v. Board of Trustees, 195 U. S. 210, 49 L. 164, 25 Sup. Ct. 24, allegation that board of Ohio University trustees is citizen of state, and was created by state laws, is not sufficient aver- ment that it is Ohio corporation. Syl. 4 (VI, 737). Repeal of statute giving jurisdiction. Approved in United States v. Sena, 12 N. M. 414, 78 Pac. 62, repeal of Laws of 1901 deprived supreme court of jurisdiction over criminal appeals not taken during term at which judgment rendered; Terry v. McClung, 104 Va. 601, 52 S. E. 356, construing Acts 1887-88, p. 68, c. 58, relating to jurisdiction in road cases. Limited in Sena v. United States, 147 Fed. 488, where defendant in criminal case appealed from territorial district court within time and in accordance with existing statute, repeal of statute without saving clause before hearing of appeal did not deprive appellate court of jurisdiction. 5 Wall. 545-563, 18 L. 6G2, THE BIRD OF PARADISE. Syl. 2 (VI, 739). Contract affirming freight lien. Approved in Portland etc. Mills Co. v. Portland etc. S. S. Co., 145 Fed. 693, provision of bill of lading that carrier shall have lien on goods for all freights does not affect nature of lien; Michigan S. S. Co. V. Thornton, 136 Fed. 137, 69 C. C. A. 132, where charter-party provided that freight should be payable in cash on delivery of each cargo, and that ship should have lien on all cargo for freight, and con- eignee remitted to shipper for cargo and freight, money impressed with trust for freight. Syl. 3 (VI, 739). Lien for freight — Retention of goods. Approved in Portland etc. Mills Co. v. Portland etc. S. S. Co., 145 Fed. 692, provision of bill of lading that carrier shall have lien on goods for all freights does not affect nature of lien. 5 Wall. 563-663 Notes on IT. S. Reports. 422 5 Wall. 563-566, IS L. 692, UNITED STATES v. THE COMMIS- SIONER, Syl. 1 (VI, 741). Mandamus — Quasi-judicial duties. Approved in Hover v. People, 17 Colo. App. 392, 68 Pac. 685, man- damus does not lie to control determination of council as to sufTicipncy of funds to meet demands of city departments and amount of appro- priation. 5 Wall. 566-574, 18 L. 511, GOODRICH v. CHICAGO. Syl. 1 (VI, 742). State judgment on demurrer conclusive in ad- miralty. Cited in Loekliart v. Leeds, 12 N. M. 167, 76 Pac. 315, and Board of County Commrs. v. Cross, 12 N. M. 76, 73 Pac. 616, both holding where, on sustaining demurrer, material issues had to be passed on, and plaintiff did not amend, but allowed entry of dismissal, judgment was res adjudieata; Ayres v. Cone, 138 Fed. 781, arguendo. 5 Wall. 580-599, 18 L. 550, PACKET CO. v. SICKLES. Syl. 1 (VI, 744). Judgment as estoppel. Approved in Schwarz v. Kennedy, 142 Eed. 1029, judgment for de- fendant for costs in replevin against two defendants, in which one of defendants was owner of undivided interest only, is not bar to action for conversion of same property; Georgia etc. Banking Co. v. Wright, liJ2 Fed. 917, decision of Georgia supreme court in suit between rail- road and state that company's charter precluded greater tax than cer- tain percentage of earnings, concludes state in subsequent suit, though it involves taxes for different year or under different statute; State v. MeEldowney, 54 W. Va. 701, 47 S. E. 652, applying rule to decree in suit assailing validity of tax deed. Syl. 2 (VI, 746). Judgment — Evidence aliunde to explain. Approved in Fayerweather v. Ritch, 195 U. S. 306, 49 L. 213, 25 Sup. Ct. 58, declaring validity of releases to be res adjudieata; Hol- ford V. James, 136 Fed. 555, 69 C. C. A. 263, construing docket entries as indicating that action proceeded to final judgment; Oster v. Broo, 161 lud. 123, 64 N. E. 921, in suit to compel defendant to allow plaintiff to repair ditch across defendant's land, jurors in action by plaintiff against defendant for tearing up part of it cannot testify that they did not include cost of constructing ditch as part of re- covery. , 5 Wall. 660-663, 18 L. 678, MILWAUKEE R. R. CO. v. SOUTTER. Svl. 1 (VI, 751). Confirmation of judicial sale is exercise of dis- cretion. Approved in The -Sue, 137 Fed. 134, fact that first bidder has de- posited amount of bid or incurred expense on account of supposed purchase not ground for objection to setting aside unconfirmed sale in admiralty on offer of increased bid. 423 Kotes on U. S. Reports. 5 Wall. 6G3-704 5 Wall. 6G3-CS0, 18 L. 704, THOMPSON v. EIGGS. Syl. 4 (VI, 752). Bank deposits belong to bank. Approved in Burton v. United States, 196 U. S. 302, 49 L. 488, 25 Sup. Ct. 243, indictment charging receipt and payment of checks in St. Loufs not sup[)orted by evidence that checks drawn on St. Louis bank were received by defendant in Washington and deposited in local bank; Bank of Blackwell v. Dean, 9 Okl. 631, 60 Pac. 228, general depositor not entitled to priority over other general creditors on assignment of bank. Syl. 6 (VI, 754). Usage implied in contract. Approved in MeSlierry v. Blanchfield, 68 Kan. 312, 75 Pac. 122, where there is express contract for storage, evidence of existence of certain custom not admissible unless party presumed to know of it. 5 Wall. 6S1-G89, 18 L. 689, WOLCOTT v. DES MOIXES CO. Syl. 4 (VI, 757). Land grants — Exception of reserved lands. Approved in Northern Lumber Co. v. O'Brien, 139 Fed. 617, affirming 134 Fed. 304, holding where withdrawal of public lands along route of railroad is made by Land Department on filing general location, such withdrawal excepted lands from subsequent grant, though route subsequently changed. 5 Wall. 689-704, 18 L. 527, NASH v. TOWNE. Syl. 3 (VI, 758). What variance deemed material. Approved in Schiffer v. Anderson, 146 Fed. 459, where complaint alleged certain defendant was member of defendant's firm, and though other defendants had knowledge of facts, they did not denv allegation, but proved contrary under general denial, variance not material. Syl. 5 (VI, 759). Contracts — Surrounding circumstances considered. Approved in Cleveland-Cliffs Iron Co. v. East Itasca Mining Co., 146 Fed. 235, construing contract for assignment of mining leases on iron land on royalty; Vocalion Organ Co. v. Wright, 137 Fed. 316, construing contract between employer and its factory superintendent for interest in latter 's future inventions of or improvements in piano players; United Rys. etc. Co. v. Wehr, 103 Md. 339, 63 Atl. 478, where defendant solicited of plaintiff bid for scrap iron in building, not including engines or piping, and plaintiff bid for all old material for sale in building, parol admissible to show whether structural iron included; Milske v. Steiner Mantel Co., 103 Md. 246, 63 Atl. 473, 5 L. R. A. (N. S.) 1105, where contractor agreed to put up building according to plans and give bond, and bond recited that neither prin- cipal nor surety liable for damage caused by act of God, contractor not relieved from damage to building caused by storm. 5 Wall. 705-737 Notes on U. S. Keport8. 424 Syl. 8 (VI, 760). Parol to exonerate agent contracting as principal. Approved in Builders' Supply Co. v. North Augusta etc. Imp. Co., 71 S. C. 375, 51 S. E. 236, where owner of lot agreed with another to build house thereon and convey it free of liens, and permitted buyer to contract with builder, and took bond from builder and paid materialman, latter had lien on house and lot. Syl. 9 (VI, 761). Parol to show contract made by agent. Approved in In re Weisenberg, 131 Fed. 521, parol evidence is admissible to show that joint notes signed by members of bankrupt partnership are in fact firm debts. 5 Wall. 705-710, 18 L. 560, CITY OF GALENA v. AMY. Syl. 1 (VI, 761). Tax levy to pay fund<^d debt imperative. Approved in United States v. Cornell Steamboat Co., 202 U. S. 192, 50 L. 991, 26 Sup. Ct. 648, affirming 137 Fed. 458, 69 C. C. A. 603, Secretary of Treasury cannot arbitrarily refuse to refund duties on damaged imports provided by Comp. St. 1901, p. 1958; Jones v. Commissioners, 137 N. C. 592, 50 S. E. 295 (on rehearing), holding Laws 1903, p. 490, c. 289, authorizing issuance of refunding bonds, is mandatory; dissenting opinion in Battery Park Bank v. Madison Co. Commrs., 135 N. C. 240, 47 S. E. 1018, majority holding Laws 1903, p. 490, c. 289, authorizing issuance of refunding bonds, is not manda- tory. Syl. 4 (VI, 763). Obligation of contracts — Eepeal of law to pay debts. Approved in City of Ft. Madison v. Ft. Madison etc. Co., 134 Fed. 216, 67 C. C. A. 142, Code Iowa 1897, § 1305, providing for assessment of property at quarter of value, is void in so far as it affects ability of city to pay water rentals under contract made when law provided for assessment at actual value; Graham v. Folsom, 200 U. S. 252, 50 L. 468, 20 Sup. Ct. 245, arguendo. Syl. 6 (VI, 764). Mandamus to compel tax levy. Approved in Ward v. Piper, 69 Kan. 777, 77 Pac. 700, applying rule in action to compel municipal officers to pay judgment on bond coupons from interest fund; Territory v. Mayor etc. of City of Socorro, 12 N. M. 185, 76 Pac. 285, it is no defense to mandamus to compel city to levy tax to pay bonds that relator owns only por- tion of bond issue. 5 Wall. 720-737, 18 L. 614, PHILADELPHIA v. COLLECTOR. Syl. 4 (VI, 765). Payment by compulsion of law under protest. Approved in Kahn v. Herold, 147 Fed. 579, 580, where at time executors paid inheritance tax on life estate under protest they had no knowledge that life tenant had died, payment not voluntary so as to preclude recovery. 425 Notes on U. S. Eeports. 5 Wall. 737-808 5 Wall. 737-761, 18 L. 667, THE KANSAS INDIANS. Syl. 3 (VI, 768). Tribal Indians subject to federal ]aw3. Approved in In re Hctf, 197 U. S. 506, 49 L. 856, 2a Sup. Ct. 506, sale of liquor within state to Indian to whom allotment made under act of 1887, not an offense under 29 Stat. 506, c. 109. Distinguished in Montana Catholic Missions v. M-ssoula Co., 200 U. S. 127, 50 L. 402, 26 Sup. Ct. 197, claim that cattle owned by Jesuits are exempt from state taxation because Jesuits' income de- voted to educating reservation Indians does not confer federal juris- diction. Syl. 5 (VI, 769). State taxation of Indian's lands. Approved in Goudy v. Meath, 38 Wash. 129, 80 Pac. 297, where patent to Indians was subject to treaty exempting it from sale or levy until restriction removed by statute, and statute passed allowing alienation after ten years, lands taxable after ten year period elapsed. Syl. 8 (VI, 771). Construction of Indian treaties. Approved in Winters v. United States, 143 Fed. 746, under treaty of 1888 with Montana Indians, portion of waters of Milk river re- served for irrigation of reservation lands. 5 Wall. 772-785, 18 L. 556, SUPERVISORS v. SCHENCK. Syl. 5 (VI, 774). Ratification of railroad aid bonds. Approved in Schmitz v. Zeh, 91 Minn. 295, 97 N. W. 1051, where county aid bonds issued under authority of statute and sold to bona fide purchasers, and taxes levied for thirteen years to pay interest, taxpayer estopped to attack validity. 5 Wall. 795-808, 18 L. 653, DEERY v. CRAY. Syl. 1 (V.Y, 778). Recitals in ancient deeds as evidence. Approved in Wilson v. Braden, 56 W. Va. 375, 107 Am. St. Rep. 929, 49 S. E. 410, recitals of heirship and widowhood in deeds upward of thirty years old, under which possession continuously held, are ad- missible against adverse claimants. Syl. 3 (VI, 779). Recital in married woman's acknowledgment. See 108 Am. St. Eep. 569, note. Syl. 4 (VI, 780). Error must be prejudicial to reverse. Approved in Sprinkle v. United States, 150 Fed. 59, where defend- ants were jointly indicted with others, typewritten letter purported to have been dictated by one of them and signed in his name by rubber stamp was inadmissible against him; Inman Bros. v. Dudley etc. Co., 146 Fed. 452, in action for breach of contract to sell all lumber on hand and entire cut for certain year estimated at certain figure, ex- clusion of evidence by defendant of amount actually cut during year is prejudicial; Armour & Co. v. Russell, 144 Fed. 615, in action for 6 Wall. 31-78 Notes on U. S. Eeports. 42G personal injuries to servant, it is prejudicial to instruct that it is master's duty to furnish reasonably safe place to work, reasonably safe appliances, and to keep them in reasonably safe repair; Seattle Elec. Co. V. Hartless, 144 Fed. 381, under Bal. Code (Wash.), §§ 4828, 4838, relating to actions for wrongful death by heirs and personal representatives, in action by widow and daughter, evidence as to their physical condition is inadmissible; Bank of Havelock v. Western Union Tel. Co., 141 Fed. 526, where evidence is insufficient to sustain verdict for defeated party in action for sending unauthorized tele- gram, instruction directing verdict against him on other and errone- ous ground is not prejudicial; National Biscuit Co. v. Nolan, 138 Fed. 9, 70 C. C. A. 436, applying rule where, in action for personal injuries, jilaintiff permitted to testify that she depended on herself for sup- port; Union Pac. R. Co. v. Field, 137 Fed. 18, 69 C. C. A. 536, applying rale where counsel in argument insinuated erroneous views of law as to measure of damages; Resurrection Gold Min. Co. v. Fortuue Gold Min. Co., 129 Fed. 677, 64 C. C. A. 180, applying principle where wit- ness on direct examination had related part of conversation, and cross-examination as to entire conversation denied. 5 Wall. 819-822, 18 L. 613, WITHENBURG v. UNITED STATES. Syl. 1 (VI, 782). Final appealable decree in prize case. Approved in Dodge v. Norlin, 133 Fed. 365, 66 C. C. A. 425, bank- ruptcy court judgment that chattel mortgage on alleged property of bankrupt is voidable by trustee, and that mortgagee has no lien and is not entitled to preference out of proceeds, is final appealable judg- ment. VI WALLACE. 6 Wall. 31-35, 18 L. 749, SOUTHERN S. S. CO. v. PORT WARDENS. Syl. 1 (VI, 790). Congress exclusively regulates interstate com- merce. Approved in Globe Elevator Co. v. Andrew, 144 Fed. 884, holding void Laws Wis. 1905, p. 37, c. 19, as amended, providing for inspec- tion of grain, as applied to interstate shipments. Syl. 4 (VI, 791). Fee for vessels arriving is tonnage duty. Approved in Way v. New Jersey S. B. Co., 133 Fed. 192, Laws N. Y. 1897, p. 701, c. 592, § 63, imposing tonnage duty, is void. 6 Wail. 50-78, 18 L. 721, STATE OF GEORGIA v. STANTON. Syl. 1 (VI, 797). Political questions not for courts. Approved in Anthony v. Burrow, 129 Fed. 790, denying jurisdiction to enjoin state officers from issuing certificate of nomination to con- 427 Notes on U. S. Keports. 6 Wall. 78-91 gressional candidate; Shoemaker v. City of Des Moines, 129 Iowa, 248, 105 N. \V. 521, refusing to restrain execution of contract by city ofRoials at suit of voter, for purcliase of voting machines on ground that they are not adaptable. (VI, 797). Miscellaneous. Cited in Lockhart v. Leeds, 195 U. S. 437, 49 L. 269, 25 Sup. Ct. 76, relief under general prayer not deniable because it is asked for under different theory than that on which special prayer is based, where botli prayers based on same facts. 6 Wall. 7S-S0, 18 L. 730, LUKINS v. AIRD. Syl. 2 (VI, 799). Frauilulent conveyance — Sale by failing debtor. Apj)roved in Wise v. Pfaff, 98 Md. 583, 56 Atl. 817, where deed made immediately on receipt of letter that money due on mortgage must be paid, and grantor knew deficiency judgment would be entered, and grantee received none of rents from property for long time, deed was fraudulent. 6 Wall. 80-83, 18 L. 725, WOOD v. STEP^LE. Syl. 1 (VI, 801). Alteration of commercial paper as discharge. Approved in Merchants' etc. Bank v. Baltimore etc. S. B. Co., 102 Md. 580, 582, 63 Atl. 110, 111, change of date in bills of lading in- validates them; First National Bank v. Carter, 138 Mich. 428, 101 N. W. 588, whore school order for supplies was signed by officers, removal therefrom of certificate by payee that he had received official vouL'lier containing recital that matter left to vote of annual meeting of district was material alteration. Syl. 2 (VI, 801). Materiality of alteration of note for jury. Approved in Leppert v. Flaggs, 101 Md. 75, 60 Atl. 451, in action on building contract bond, plea that contract materially changed without averring in what respect it was changed or allegation of facts consti- tuting change is insufficient. Syl. 3 (VI, 801). When alteration of instrument material. Approved in Merchants' etc. Bank v. Baltimore etc. S. B. Co., 102 Md. 581, 63 Atl. 110, change in date of bills of lading invalidates them. Syl. 6 (VT, 802). Innocent holder of altered note. Approved in Merchants' etc. Bank v. Baltimore etc. S. E. Co., 102 Md. 583, 586, 63 Atl. Ill, 112, change in date of bills of lading invalidates them even in hands of bona fide pledgee. 6 Wall. 83-91, 18 L. 727. WILSON v. WALL. Syl. 5 (VI, 803). When vendee charged with constructive notice. Approved in United States v. Detroit Timber etc. Co., 200 U. S. 333, 50 L. 504, 26 Sup. Ct. 282, purchaser of property of lumber com- 6 Wall. 94-100 Notes on U. S. Eeports. 423 pany not charged with knowledge of wrongful character, as against government, of conveyances of standing timber which might have been gained by investigation of company's books; Eeed v. Munn, 148 Fed. 756, purchaser with notice under purchaser without notice is bona fide purchaser; United States v. Detroit etc. Lumber Co., 131 Fed. 675, receiver's final certificates are notice to purchasers of equi- table title they evidence that they are avoidable by Land Department for fraud or error at any time before patents issue; Ilavighorst v. Bowen, 214 111. 98, 73 N. E. 405, where beneficiary under trust deed ac- quired fee from grantor of trust deed, and trustee released deed before notes which were pledged to third party were due, fact that record showed notes had not matured is not notice pf improper discharge to subsequent lienholder; dissenting opinion in Wasserman v. Metzger, 105 Va. 768, 771, 54 S. E. 900, 901, majority holding where one of two notes paid and collusively transferred to another, who procured to him sale by trustee of property securing it, and he then executed trust deed to loan association for benefit of first payee's wife, latter not bona fide purchaser as against lien for payment of other note secured by original trust deed. 6 Wall. 94-100, 18 L. 752, WICKER v. HOPPOCK. Syl. 3 (VI, 805). Damages — Duty to diminish damages. Approved in Indian Mountain etc. Coal Co. v. Ashevillc etc. Coal Co., 134 N. C. 588, 47 S. E. 121, applying rule under contract to sell all coal required. Distinguished in Lillard v. Kentucky Dist. etc. Co., 134 Fed. 178, 67 C. C. A. 74, buyer of distillery slop for feeding purposes under contract, whereby seller was to deliver it in troughs suitable for feeding, may recover, though he did not himself erect troughs where he relied on seller's repeated promises to do so; Allen v. Field, 130 Fed. 653, 65 C. C. A. 19, where defendant contracted for purchase of greater part of product of plaintiff's distillery for fifteen years, on repudiation of contract by defendant after two years, plaintiff not bound to operate distillery and market product. Syl. 4 (VI, 805). Damages for breach of indemnity contract. Approved in Dancel v. Goodyear Shoe etc. Co., 137 Fed. 159, where corporation purchases entire property and assets of another, and gives bond to pay all its debts and assume all its contracts, latter is not indispensable party to suit in equity against purchaser to enforce its liability on such contract; Broadwell v. Banks, 134 Fed. 476, cov- enant by lessee to pay taxes, not being one of indemnity, cause of action to recover same accrues to lessor on failure to pay taxes; Cudaback v. Hay, 134 Fed. 123, where defendant purchased realty in another's name, agreeing to furnish money to pay taxes and principal and interest on mortgage, and save him harmless from all charges, defendant's liability was fixed on rendition of deficiency judgment on 429 Notes on U. S. Keports, 6 Wall. llG-139 foreclosure; Cousins v. Paxton & Gallagher Co., 122 Iowa, 469, 98 N. W. 279, where sheriff accepted bond to indemnify him against liability for damages sustained by levy on personalty, he cannot recover thereon for attorney's fees incurred in defending action for conversion till fee actually paid; Northern Assur. Co. v. Borgelt, 67 Neb. 286, 93 N. W. 227, where insurance agent gave bond to faithfully perform all duties i>.nd obey instructions, and they neglected to cancel policy as directed, action on bond not barred until five years from loss to obligee. 6 Wall. 116-124, 18 L. 730, OSTERMAN v. BALDWIN. Syl. 1 (VI, 807). Alien's capacity to hold lands. Approved in Pembroke v. Huston, 180 Mo. 639, 79 S. W. 472, alien not justified in rescinding contract for exchange of lands. Syl. 2 (VI, 807). Naturalization waives forfeitures due to alienage. Approved in Shea v. Nilima, 133 Fed. 215, 66 C. C. A. 203, agreement between two aliens to acquire mining claims for joint benefit may be enforced by one subsequently declaring intention to become citizen. 6 Wall. 134-139, 18 L. 765, THOMPSON v. EAILROAD COS. Syl. 1 (VI, 809). Jurisdictional objections raisable on appeal. Approved in Perez v. Fernandez, 202 U. S. 100, 50 L. 949, 26 Sup. Ct. 561, supreme court will of own motion, on writ of error, inquire into jurisdiction of lower court, irrespective of exception; Nichols v. Board of Commrs. of Western Co., 13 Wyo. 8, 76 Pac. 682, where final judgment is not supported by pleadings or findings, it may be vacated on error, on record proper, witliout bill of exceptions. Syl. 2 (VI, 810). Federal equity not limited by state law. Approved in Mutual Life Ins. Co. v. Blair, 130 Fed. 974, whers equity has jurisdiction of suit to cancel life policy for fraud, fact that insured died prior to answer and that action at law brought on policy does not deprive equity court of jurisdiction; Anthony v. Burrow, 129 Fed. 790, denying equity jurisdiction to enjoin state officers from is- suing certificate of nomination to congressional candidate. Syl. 3 (VI, 811). Adoption of state practice. Approved in Ames Realty Co. v. Big Indian etc. Co., 146 Fed. 176, rights given Civ. Code Mont., § 1891, providing that in actions for protection of water rights plaintiff may make all diverters of water from same source parties and court may settle rights of all parties, are enforceable in federal court; Levi v. Mathews, 145 Fed. 154, in action at law for recovery of money due under contract, court cannot entertain defense of fraud in procurement of contract; Chapman v. Yellow Poplar Lumber Co., 143 Fed. 206, bill in federal court to compel reconveyance of property conveyed by complainants to defendants and also for damages for breach of the contract, states two causes of ac- tion; Illinois Life Ins, Co. v. Newman, 141 Fed. 453, federal equity 6 Wall. 139-209 Notes on U. S. Reports. 430 cannot enjoin collection of state tax on ground of its illcgalitj'; Davidson etc. Imp. Co. v. Parlin etc. Co., 141 Fed. 40, simple contract creditor who has not reduced claim to judgment cannot have claim adjudicated in equity; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. 706, where cause removed from state court, which was competent to grant either equitable or legal relief, and plaintiff pro- ceeds in equity in federal court, and no case is made for equitable relief, court cannot award damages; Anglo-American etc. Co. v. Lombard, 132 Fed. 731, 68 C. C. A. 89, in action at law to enforce stockholder's liability, defendant cannot set off indebtedness from corporation to him. 6 Wall. 139-142, 18 L. 819, WEST v. AUEOEA CITY. Syl. 1 (VI, 812). Affirmative answer not new removable suit. Approved in Smithers .v. Smith, 35 Tex. Civ. 511, 80 S. W. 648, fol- lowing rule; Indian etc. Coal Co. v. Ashville etc. Coal Co., 135 Fed. 840, where, after judgment in favor of nonresident plaintiff was affirmed as to original cause of action but reversed as to counterclaim, defendant amended counterclaim by increasing amount demanded, plaintiff could not remove cause. Syl. 2 (VI, 813). Eemoval — Appearance in state court waives. Distinguished in Price v. Ellis, 129 Fed. 483, where defendant in action by nonresident files counterclaim for more than $2,000, cause is removable by plaintiff at or before time to plead to counterclaim. 6 Wall. 142-152, 18 L. 753, EECTOR v. ASHLEY. Syl. 4 (VI, 815). Statutes govern claimants to public lands. Approved in Tyee Consol. Min. Co. v. Langstedt, 1 Alaska, 447, ten year statute of limitations begins to run in favor of adverse possessor of part of mining claim from time of location and not from date of patent; Graham v. Great Falls etc. Co., 30 Mont. 403, 76 Pac. 811, applying rule in construing act of 1891, relating to confirmation of contested pre-emptions in hands of bona fide purchasers. 6 Wall. 153-157, 18 L. 762, PROVIDENCE RUBBER CO. v. GOOD- YEAR. Syl. 1 (VI, 816). Appeal — Rights determined from filing. Approved in In re McCall, 145 Fed. 901, 902, time limit for re- view of order confirming bankrupt's composition runs from entry of confirmation order on record. 6 Wall. 166-209, 18 L. 768, RIGGS v. JOHNSON COUNTY. Syl. 1 (VI, 819). Jurisdiction continues till judgment satisfied. Approved in Hatcher v. Hendrie etc. Supply Co., 133 Fed. 270, 68 C. C. A. 19, suit in equity to enforce attachment lien obtained in former action is maintainable irrespective of citizenship or of custody 431 Notes on U. S. Reports. 6 Wall. 213-230 of proceeds of attached property; Louisville Trust Co. v. Knott, 130 Fed. 825, 65 C. C. A. 158, where, on expiration of corporation's fran- chise, its assets delivered to liquidator and minority stockholders filed state suit to inspect books, and pending suit creditor obtained ap- pointment of federal receiver, state court had priority of jurisdiction; Ingraham v. National Salt Co., 139 Fed. 690, arguendo. Syl. 4 (VI, 820). Mandamus by circuit court. Approved in Barber Asphalt Pav. Co. v. Morris, 132 Fed. 955, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to circuit judge to vacate order staying proceedings in action on claim against city pend- ing state appeals. Syl. 7 (VI, 822). State injunction of federal proceedings. Approved in Beardslee v. Ingraham, 183 N. Y. 417, 76 X. E. 477, where federal court issued attachment against property of corporation, and writ filed in office of clerk of county where property situated, and afterward receiver appointed by state court in suit for dissolution, state court cannot enjoin marshal from selling attached property on execution. Distinguished in Shaw v. Frey, 69 N. J. Eq. 324, 59 Atl. 812, state court may enjoin prosecution of federal action pending discovery of matters necessary to trial of such action. Syl. 9 (VI, 824). Mandamus to levy tax to pay bonds. Approved in Theis v. Conimrs. of Washita County, 9 Okl. 653, 60 Pac. 508, where county commissioners have issued bridge warrants in accordance with statute, mandamus lies to compel tax levy ^o liquidate warrants. See 105 Am. St. Rep. 216, 217, note. 6 Wall. 213-216, 18 L. 753, THE ROCK ISLAND BRIDGE. ' Syl. 2 (VI, 827). Maritime lien not dependent on possession. Approved in The San Rafael, 141 Fed. 281, lien for maritime tort follows vessel into hands of buna fide purchaser. Syl. 4 (VI, 827). What subject to maritime lien. Approved in United States v. Evans, 195 U. S. 365, 49 L. 237. 25 Sup. Ct. 46, upholding admiralty jurisdiction over libel iu rem against vessel for negligently colliding with beacon built on piles iu channel; Bowers Hyd. etc. Co. v. Federal Cont. Co., 148 Fed. 294, upholding admiralty jurisdiction over suit to recover for hire of dredge intended to operate a float, though dredge temporarily used on land to dredge stream. 6 Wall. 225-230, 18 L. 823, THE VANDERBILT. Syl. 1 (VI, 829). Collision— Xnvigation in river. Approved in Lake Erie Transp. Co. v. Gilchrist Transp. Co., 1-12 Fed. 91, where it is customary for vessels to pass between buoy and G Wall. 231-262 Notes on U. S. Reports. 432 light, agreement made to pass port to port requires each vessel to keep on starboard side of channel between light and buoy. 6 Wall. 231-241, 18 L. 783, MASON v. ELDRED. Syl. 3 (VI, 830). Partner's obligations are joint. Approved in Outcalt v. Collier, 8 Okl. 477, 58 Pac. 644, where one of several joint debtors on note consents to judgment against all, and on motion court vacates judgment as to portion of defendants who did not authorize consent, judgment must be set aside as to all defendants. Syl. 4 (VI, 830). Judgment against on^ joint obligor. Approved in Outcalt v. Collier, 8 Old. 478, 58 Pac. 644, where one of several joint debtors on note consents to judgment against all, and on motion court vacates judgment as to portion of defendants who did not authorize consent, judgment must be set aside as to all de- fendants. (VI, 830). Miscellaneous. Cited in Bell v. St. -Tohnsbury etc. R. R. Co., 76 Vt. 52, 56 Atl. 109, notice and opportunity to be heard are prerequisites to judgment. 6 Wall. 247-254, 18 L. Sol, THE MAYOR OF NASHVILLE v. COOPER. Syl. 1 (VI, 832). No costs where no jurisdiction. Approved in Nutter v. Brown, 58 W. Va. 245, 52 S. E. 92, 1 L. R. A. (N. S.) 1083, decree respecting allowances of expenses and compensa- lion of receiver is appealable. Distinguished in Graham v. Oregon etc. Nav. Co., 134 Ped. 692. where exceptions to libel in admiralty for want of jurisdiction are sustained, libel may be amended. Syl. 2 (VI, 833). Doubts resolved in favor of validity of law. Approved in Board of Commrs. of Onslow Co. v. Tollman, 145 Fed 766, upholding Laws N. C. 1885, p. 439, c. 233, incorporating railroad and authorizing issuance of county aid bonds. Syl. 3 (VI, 833). Federal courts — Cases involving federal questions. Approved in Anthony v. Burrow, 129 Fed. 787, question whether county is lawfully in congressional district, where it was placed by state statute, is not federal question. 6 Wall. 258-262, 18 L. 829, MILLINGAR v. HARTUPEE. Syl. 1 (VI, 835). When federal question exists. Approved in Harris v. Rosenberger, 145 Fed. 452, appeal from cir- cuit court to circuit court of appeals lies where constitutionality of statute empowering postmaster general to issue fraud orders as well as its construction is involved; York Co. Sav. Bank v. Abbot, 131 433 Notes on U. S. Reports. 6 Wall. 280-316 Fed. 982, upholding federal jurisdiction over suit by lessee against nonresident lessor to conij)el lessor to either buy building from or sell land to complainant, at appraised value, under terms of lease. 6 Wall. 280-291, 18 L. 825, BARNEY v. BALTIMORE. Syl. 1 (VI, 838). Partition — All co-owners necessary parties. Approved in Goldman v. Millay, 7 Ariz. 288, 64 Pac. 434, in action for partition by administrator of mortgagee of undivided half of library against purchaser of other half, widow of mortgagor in pos- session of plaintiff's undivided half is necessary party. Syl. 2 (VI, 838). Proper and necessary parties distinguished. Approved in Perkins v. Hendryx, 149 Fed. 528, in suit to vacate decree in favor of partnership, where firm dissolved and one of part- ners has died since decree, his administrators are not necessary par- ties; United States v. Northern Pac. R. Co., 134 Fed. 719, 67 C. C. A. 269, in suit by United States, in which annulment of contract between corporations is sought is necessary incident to other relief, court can- not try case where it has no jurisdiction over one of corporations making contract. Syl. 4 (VI, 840). Citizen of territory cannot sue in federal court. Ajiproved in Laden v. Meek, 130 Fed. 879, 65 C. C. A. 361, allegation in removal petition that certain of petitioners are "residents" of state other than that of plaintiff's citizenship, and that none of them are "residents and citizens" of state of plaintiff's citizenship, is insufficient. 6 Wall. 291-298, 18 L. 919, CRAWFORD v. ADDISON. Syl. 1 (VI, 843). Salary as damages on quo warranto supersedeas. Approved in Jones v. Carver, 17 Colo. App. 489, 68 Pac. 1067, where opinion in proceedings to try title to office was that plaintiff was lawfully appointed and his removal illegal, judgment estopped de- fendant in action to recover emoluments of office. 6 Wall. 299-316, 18 L. 786, CLEMENTS v. MOORE. Syl. 2 (VI, 845). Fraudulent sale void 'though value paid. Approved in In re Pease, 129 Fed. 448, merchant gave chattel mort- gage on stock and with proceeds paid certain creditors in full and next day mortgagee took possession and sold stock, transaction was void under Bankr. Act, c. 541, § 67e. Syl. 3 (VI, 846). Equitable relief to buyers at fraudulent sale. Approved in Lynch v. Burt, 132 Fed. 432, 67 C. C. A. 305, one claiming through grantee in fraudulent conveyance, wlio did not par- ticipate in fraud, is entitled to reimbursement for payments for taxes. 28 6 Wall. 316-382 Notes on U. S. Reports. ' 434 Syl. 5 (VI, 847). Buyer has burden of disproving fraud. Approved in dissenting opinion in Ilickey v. Davidson, 129 Iowa, 396, 105 N. W. 682, majority holding where decedent 's son was in- solvent and his interest in decedent's property exhausted by advance- ments made by father, conveyance by sisters to infant son of in- solvent brother of their interest in land descended to them from father not in fraud of brother's creditors. 6 Wall. 316-318, 18 L. 736, THOMPSON v. BOWMAN. Syl. 1 (VI, 847). Partnership in purchase of lands. Approved in Beers v. Sharpe, 44 Or. 393, 75 Pac. 719, cotenant can- not transfer any greater interest in water rights appurtenant to es- tate than own interest. 6 Wall. 318-327, 18 L. 816, EX PARTE McCARDLE. Syl. 1 (VI, 848). Habeas corpus by federal courts. Approved in West Virginia v. Laing, 133 Fed. 891, 66 CCA. ni7, upholding release on habeas corpus where member of posse assisting in arrest of one indicted in federal court arrested under state process for murder; State v. Van Huse, 120 Wis. 21, 97 N. W. 505, arguendo. 6 Wall. 355-363, 18 L. 810, MASSINA v. CAVAZOO. Syl. 9 (VI, 853). Bills of exceptions must be signed. Approved in Woods v. Beaton, 2 Alaska, 3, where trial .i^f's^^. ^o whom bill of exceptions was presented, left bench without signing it, his successor cannot sign it. 6 Wall. 363-382, 18 L. 863, GRTSAR v. McDOWELL. Syl. 3 (VI, 854). Pueblo's claim imperfect till. lands assigned. Approved in Bowden v. San Francisco, 199 U. S. 600, 50 L. 328, 26 Sup. Ct. 748, following rule; Wallace v. Adams, 143 Fed. 724, arguendo. Syl. 12 (VI, 855). Confirmation of land grant dates back. Approved in United States v. Anderson, 194 U. S. 399, 48 L. 1039, 24 Sup. Ct. 716, government cannot, as against grantees of lands Avithin indemnity limits of railroad grant, retain sums collected for removal of stone betweerf selection and approval of selection ; Peyton V. Desmond, 129 Fed. 12, 63 C. C A. 651, homestead patentee may re- cover value of timber wrongfully cut after initiation of claim and prior to issuance of patent; Florida Town Imp. Co. v. Bigalsky, 44 Fla. 776, 33 So. 451, President could in 1842 and 1849, by executive order, without special congressional authorization, reserve part of public domain on Amelia Island for military reservation. Syl. 13 (VI, 856). President may reserve public lands. Approved in United States v. Tuily, 140 Fed. 901, reciting history of Ft. Missoula Military Reservation; Gibson v. Anderson, 131 Fed, 41, 435 Notes on U. S. Reports. 6 Wall. 385-402 65 C. C. A. 277, President may reserve portion of unoccupied public lands for Indian reservation, notwithstanding Rev. St., § 2319, relat- ing to mineral deposits on public lands; Crawford v. Burr, 2 Alaska, 35, arguendo. Syl. 14 (VI, 856). Suit against officer as suit against government. Approved in Wadsworth v. Boysen, 148 Fed. 780, denying federal jurisdiction over suit to enjoin Indian agent from obstructing com- plainant from prospecting on government lands; O'Reilly De Camara V. Brooke, 135 Fed. 388, upholding right of action against military governor of Cuba for tort committed in official capacity against indi- vidual in course of civil administration. See 108 Am. St. Rep. 839, note. C Wall. 385-402, 18 L. 830, UNITED STATES v. HARTWELL, Syl. 1 (VI, 857). Office defined. Approved in Smith v. Van Buren Co., 125 Iowa, 457, 101 N. W. 187, construing Code, § 441, relating to selection of official newspaper by supervisors; State v. Theus, 114 La. 1104, 38 So. 873, parish superin- tendent of public instruction is a public officer; State v. Maroney, 191 Mo. 545, 90 S. W. 146, judges and clerks of election appointed under Laws 1903, p. 170, are public officers holding for fixed period; Opinion of the .Tustices, 73 N. H. 622, 62 Atl. 970, notaries public arc public officers; Guthrie Daily Leader v. Cameron, 3 Okl. 682, 41 Pac. 636, Sess. Laws 1895, p. 47 does not create office of public printer. Syl. 2 (VI, 858). Clerk appointed by departmental head is officer. Approved in McGregor v. United States, 134 Fed. 196, clerk in Postoffice Department is officer indictable under Rev. St., §§ 1781, 1782, prohibiting officers from receiving compensation for aiding in procuring government contract. Distinguished in United States v. Schlierholz, 137 Fed. 620, 622, 623, sjjecial agent of Land Department appointed under appropriation act of June 4, 1897, was not United States officer within meaning of Rev. St., § 5481, relating to extortion; United States v. Cole, 130 Fed. 619, cashier of mint appointed under Rev. St., § 3504, is not officer of m'nt within Rev. St., § 3506, relating to custody of coin. Syl. 4 (VI, 859). Penal statutes strictly construed. Approved in W^adsworth v. Boysen, 148 Fed. 776, construing 36 Stat. 1016, ratifying agreement by which Shoshone Indians ceded Wind River Reservation; United States v. Greene, 14G Fed. 779, construing Rev. St., § 5497, relating to embezzlement of public money; Mclnerney V. United States, 143 Fed. 733, original application of alien for natural- ization filed in federal court, together v/ith record of proceedings thereon, constitute record within Rev. St., § 5403, punishing theft of records; State v. Woodward. 182 Mo. 407, 103 Am. St. Rep. 646, 81 S. W. 862, under Rev. St. 1S99, § 2043, punishing bribery of or at- 6 Wall, 402-419 Notes on U. S. Keports, 436 tempt to bribe jurors, evidence showing proposal of willingness to give bribe is sufficient; State v. Hesterly, 182 Mo. 27, 28, 103 Am. St. Eep. 634, 81 S. W. 628, Kev. St. 1899, § 1845, prohibits teacher from carnally knowing female pupil under eighteen at any time during ex- istence of relation of teacher and pupil; Choctaw etc. K. E. Co. v. Alexander, 7 Okl. 595, 54 Pac. 422, construing Stat. 1893, p. 597, c. 38, regulating prairie fires. G Wall. 402-419, 18 L. 925, STARK v. STARRS. Syl. 1 (VI, 860). Quieting title by possessor against adverse claim- ant. Approved in Shewalter v. Lexington, 143 Fed. 166, in suit to quiet title against street improvement certificates, amounting to less than $2,000, amount of certificates and not value of land constitutes subject matter of action; dissenting opinion in- Logan v. Ward, 58 W, Va. 378, 52 S. E. 403, arguendo. Syl. 2 (VI, 861). Suit by possessor to determine adverse claims. Approved in Foss v. Dam, 1 Alaska, 346, one in possession of lot on public lauds and using same for purposes of trade or residence may sue to quiet title thereto; Muckle v. Gord, 45 Or. 232, 77 Pac. 744, applj'ing rule in suit to quiet title to tide lands. Distinguished in Ladd v. Mills, 44 Or. 227, 75 Pac. 142, under B. & C. Comp., § 516, administrator may sue in equity to determine adverse possession. Syl. 5 (VI, 863). Patent relates back to inception of rights. Approved in United States v. Detroit Timber etc. Co., 200 U. S. 335, 50 L. 505, 26 Sup. Ct. 282, purchaser from patentees for value without notice of entryman's fraud is entitled to protection as bona fide purchaser under Comp. St. 1901, p. 1545, though he acquired in- terest in lands under contract for timber before patents issued; United States v. Anderson, 194 U. S. 399, 48 L. 1039, 24 Sup. Ct. 716, government cannot, as against grautcc of lands within indem- nity limits of railroad grant, retain sums collected for removal of stone between selection and approval of selection; Tegarden v. Le Marehel, 129 Fed. 490, state statute giving defendant in ejectment right to recover value of improvements made in good faith under color of title not applicable where plaintiff claims under patent is- sued after improvements made; Peyton v. Desmond, 129 Fed. 12, 63 C. C. A. 651, patentee under homestead laws may recover value of timber cut between initiation of claim and issuance of patent; Blumer v. Iowa R. R. Land Co., 129 Iowa, 38, 105 N. W. 344, as against railroad entitled to land under grant, limitations run in favor of occupant under timber culture act from time occupant enters under receiver's receipt; Flanagan v. Forsythe, 6 Okl. 236, 50 Pac. 155, lands entered for homestead are not exempt from liability for debts after final proof made and final certificates issued; Washington Rock 437 Notes on U. S. Eeports. 6 Wall. 458-481 Co. V. Young, 110 Am. St. Eep. 666, 29 Utah, 121, 80 Pac. 387, where entry of public land was made in land office on faith of original gov- ernment survey, patent related back to entry and was based on or- iginal survey; Knecland v. Korter, 40 Wash. 356, 82 Pac. 610, 1 L. R. A. (N. S.) 745, where tide lands within place limits of grant sur- veyed and identified and railroad performed all conditions prior to admission of state, railroad entitled to land though patent issued after adoption of constitution. Distinguished in dissenting opinion in Kneeland v. Korter, 40 Wash. 374, 82 Pac. 613, 1 L. R. A. (N. S.) 745, majority holding where tide lands within place limits of railroad grant surveyed and identified and railroad performed all conditions prior to admission of state, railroad entitled to laud though patent issued after adoption of constitution. Syl. 7 (VI, 8G5). Constructive trusts — Compelling conveyance. Approved in Kerns v. Lee, 142 Fed. 988, and .Johnson v. Pacific Coast S. S. Co., 2 Alaska, 238, both following rule. 6 Wall. 458-481, 18 L. 8G9, DOE, LESSEE, v. CONSIDINE. Syl. 2 (VI, 870). Measure of extent and duration of trusts. Approved in Brillhart v. Mish, 99 Md. 458, 58 Atl. 31, construing trust deed, for grantor's life, by owner of curtesy in land; Angle v. Marshall, 55 W. Va. 680, 47 S. E. S8G, construing trust deed for pur- pose of managing estate as power of attorney revocable irrespective of provision of irrevocability. Syl. 6 (VI, 871). Vested remainder defined. Approved in Archer v. Jacobs, 125 Iowa, 478, 481, 101 N. W. 199, devise to daughter for life, remainder to her children or grand- children, but if there be none then to testator's son, daughter took life estate and her children vested remainder; O 'Day v. Meadows, 194 Mo. 618, 92 S. W. 645, deed conveying land to wife through third person, estate to commence at death of husband and continue during wife's life, conveyed vested interest; Curtis v. Zutavern, 67 Neb. 194, 93 N. W. 405, quitclaim deed passes reversionary rights in land which owner holds subject to dower estate; In re Kountz's Estate, 213 Pa. 397, 62 Atl. 1105, 3 L. R. A. (N. S.) 639, under will provid- ing for children and grandcliildren, income to be paid to them for life, and for division among grandchildren after death of children, grandchildren took contingent remainder; Rhode Island Hospital Trust Co. V. Noyes, 26 R. I. 329, 58 Atl. 1002, under will giving cer- tain part of income to sister and residue to grandson until he should attain certain age, and if he should die before such age then income to go in other ways, grandson took vested interest in trust fund. 6 Wall. 481-494 Notes on U. S. Eeports. 438 Syl. 12 (VI, 872). Executory clevises and contingent remainders not favored. Approved in Anderson v. Messinger, 146 Fed. 939, where testator declared that if either of two sons died without descendants, survivor should take his estate, and if survivor so died then half of deced- ent's portion and half of portion taken by survivorship should go to testator's brothers and sisters, sons took life estate; Thomas v. Castle, 76 ('onn. 451, 56 Atl. 855, construing will giving estate in trust for son, who may use income and after his death to others, as creating contingent remainder. Syl. 15 (VI, 873). Vesting of devise to class in futuro. Approved in Taylor v. Stephens, 165 Ind. 205, 74 N. E. 9S2, con- struing devise to wife for life and at her death to testator's children as giving children vested remainder. 6 Wall. 481-484, 18 L. 930, WALKLEY v. CITY OF MUSCATINE. Syl. 1 (VI, 874). Mandamus to compel tax to pay judgment. Approved in Marra v, San Jacinto etc. Irr. Dist., 131 Fed. 790, applying rule where regularly organized irrigation district issued bonds; Anthony v. Burrow, 129 Fed. 789, refusing mandatory injunc- tion requiring state officer to certify nomination of certain person as congressional candidate. 6 Wall. 484-491, 18 L. 920, UNITED STATES v. ECKFOED. Syl. 2 (VI, 875). Circuit court's jurisdiction limited. Approved in Kentucky v. Powers, 201 U. S. 24, 50 L. 644, 2G Sup. Ct. 3S7, denial of equal civil rights in summoning or impaneling jurors docs not give right of removal of criminal prosecution. Syl. 4 (VI, 876). Setoff against United States. Approved in United States v. Gillies, 144 Fed. 991, limitation does not run against action on claim during pendency of action against claimant in which such claim is pleaded as setoff, which action is dis- continued by plaintiff; United States v. Warren, 12 Okl. 3G5, 71 Pac. 690, in action by United States, defendant may set off demand to extent of government's claim. 6 Wall. 492-494, 18 L. 931, FOLEY v. SMITH. Syl. 1 (VI, 876). Taker of overdue note subject to equities. Distinguished in Gardner v. Beacon Trust Co., 190 Mass. 31, 76 N. E. 456, 2 L. E. A. (N. S.) 767, where transferee of overdue note obtains it from owner by fraud, bona fide purchaser takes it free from equity of original owner. 439 Notes on U. t3. Keports. 6 Wall. 499-561 6 Wall. 499-511, 18 L. 890, GAEDNER v. THE COLLECTOR. Syl. 1 (VI, 878). President need not date bill on signing. Approved in Quinn v. Cambridge, 187 Mass. 509, 73 K. E. 6G1, 69 L. R. A. 311, determining when assessment for betterments must be made under Pub. St. 1882, c. 51, § 1, providing that assessment must be made within two years of original order. Syl. 3 (VI, 878). Statutes — Evidence to determine date of ap- proval or terms. Approved in In re Seaholm, 136 Fed. 145, 69 C. C. A. 142, under Comp. St. Supp. 1903, p. 411, amending bankruptcy act, bankrupt cannot procure discharge on own application where within six years he has been granted discharge in voluntary proceedings; Rogers v. State, 72 Ark. 5G7, 82 S. W. 170, holding void anti-gambling act of 1901; Ex parte Helton, 117 Mo. App. 619, 93 S. W. 915, construing Laws 1905, pp. 168, 169, relating to game protection. Limited in Sconten v. Whatcom, 33 Wash. 282, 74 Pac. 392, under statutes providing for consolidation of cities, election of officers may be conducted within six months of filing result of election with Sec- retary of State. 6 Wall. 514-517, 18 L. 933, UNITED STATES v. COUNCIL OF KEOKUK. Syl. 3 (VI, 881). Mandamus lies to compel tax levy. Distinguished in State v. Board of Conimrs. of Clinton Co., 162 Tnd. 606, 70 N. E. 984, mandamus will not lie to compel county commis- sioners to order collection of railroad aid tax which it had been en- joined from enforcing. 6 Wall. 532-542, 18 L. 939, HANGER v. ABBOTT. Syl. 10 (VI, 886). Limitation did not run during Rebellion. Approved in Alice E. Min. Co. v. Blanden, 136 Fed. 255, holding un- der Iowa limitation statute note sued on after death of maker, and at earliest possible date after maker's death, not barred. Distinguished in Patterson v. Safe Deposit etc. Co., 148 Fed. 790, where action commenced in District of Columbia more than two years after accrual was pending seven years later, when defendant died in Maryland, and two years after his death action commenced egainst executor in Maryland, plaintiff guilty of laches. 6 Wall. 55G-561f 18 L. 948, INSURANCE CO. v. HALLOCK. Syl. 1 (VI, 890). Process must have seal. Distinguished in Leas v. Merriman, 132 Fed. 512, notice given in conformity with Virginia statute authorizing judgment on motioi4 after notice need not be under seal. 6 Wall. 561-611 Notes on U. S. Eeports. 440 Syl. 2 (VI, 890). Order of sale void without seal. Approved in Kipp v. Burton, 29 Mont. 100, 101, 102, 101 Am. St. Eep. 544, 74 Pac. 86, 87, 63 L. R. A. 325, execution issued without seal was validated by Act of March 2, 1899, p. 145, § 2, without amendment by the court. 6 Wall. 561-572, 18 L. 894, CANAL CO. v. GOEDON. Syl. 2 (VI, 891). Failure to make contract payments as breach. Approved in Brock v. Williams, 16 Okl. 126, 82 Pac. 923, where subcontractor requests original contractor to have architect make estimate of materials furnished and labor done, and make payments as per contract, and contractor fails to do so, former nor bondsman not liable for abandoning work. 6 Wall. 578-582, 18 L. 791, EGBERTS v. GRAHAM. Syl. 1 (VI, 892). Special damages must be averred. Approved in Salt River etc. Co. v. Hickey, 4 Ariz. 244, 36 Pac. 173, in action for damages for refusal of corporation to deliver certificate of stock bought from it, allegation of general damages is sufficient; Thompson v. St. Louis etc. Ey. Co., Ill Mo. App. 475, 86 S. W. 468, functional trouble manifesting itself in woman seventy days after severe blow, caused by nervous shock, is matter of special damage which must be specially pleaded; Friedman v. Pulitzer Pub. Co., 102 Mo. App. 694, 77 S. W. 343, where petition for libel charged gen- erally that plaintiff had been greatly damaged by publication, and claimed actual and punitive damages, evidence that plaintiff had been suspended from association of persons engaged in his business inad- missible. Syl. 3 (VI, 893). Objection of variance not first raisable on ap- peal. Approved in Collot v. Kahner, 140 Fed. 839, following rule; Preiss v. Zitt, 148 Fed. 618, applying rule in action for broker's commissions; Chicago etc. Ry. Co. v. Voclker, 129 Fed. 529, 65 C. C. A. 226, 70 L. R. A. 264, where, in action for wrongful death by reason of de- fective coupler, there was no objection to evidence to interstate char- acter of shipment, objection to instruction applying Comp. St. 1901, p. 3174, not available on appeal where exception below not placed on ground that petition failed to aver interstate shipment; Black v. Teeter, 1 Alaska, 566, applying«rule in ejectment. 6 Vrall. 594-611, 18 L. 897, SOCIETY FOR SAVINGsV COITE. Syl. 2 (VI, 894). Corporate franchises are legal estates. Approved in dissenting opinion in San Francisco Nat. Bank v. Dodge, 197 U. S. 96, 49 L. 681, 25 Sup. Ct. 384, majority holding dis- crimination against national banks results from taxation of national bank shares under Cal. Pol. Code, §§ 3608-3610, at market value. 441 Notes on U. S. Reports. G Wall. Gll-739 Syl. 3 (VI, 854). Taxation of corporate franchises — Exemptions. Approved in New York v. State Board of Tax Commrs., 199 U. S. 40, 105 Am. St. Rep. 701, 50 L. 76, 25 Sup. Ct. 715, franchise tax imposed by Laws 1899, c. 712, does not impair obligation of grant of privilege of operating railway in New York on payment of per- centage of earnings; State v. Savage, 65 Neb. 747, 91 N. W. 721, state board of equalization in assessment of railroad and telegraph prop- erties should include value of franchises. Syl. 4 (VI, 895). Tax on deposits — Not property tax. Approved in American Smelting etc. Co. v. People, .34 Colo. 247, 82 Pac. 533, Sess. Laws 1902, p. 73, c. 3, § 65, imposing license tax on foreign corporations, does not impose property tax; Levy v. State, 161 Ind. 258, 68 N. E. 175, upholding Burns' Rev. St. 1901, §§ 7231a, 7231t, prohibiting business by transient merchants without license. 6 Wall. 611-632, 18 L. 907, PROVIDENT INSTITUTION v. MASS.V- CHUSETTS. Syl. 4 (VI, 897). State tax on bank deposits. Approved in Attorney General v. Electric etc. Battery Co., 188 Mass. 240, 74 N. E. 467, upholding Stat. 1903, p. 450, c. 437, § 75, imposing excise tax on foreign corporations assessed on capital stock. 6 Wall. 632-641, 18 L. 904, HAMILTON COUNTY v. MASSA- CHUSETTS. Syl. 3 (VI, 899). Corporate franchise are taxable. Approved in Attorney General v. Electric etc. Batterv Co., IBS Mass. 240, 74 N. E. 467, upholding Stat. 1903, p. 450, c."4;;7, § 75, imposing excise tax on foreign corporations assessed ou cajjital stock. 6 Wall. 642-719, 18 L. 950, GAINES v. NEW ORLEANS. Syl. 1 (VI, 900). Conclusiveness of foreign probate. Approved in Ward v. County Commrs. Logan Co., 12 Okl. 278, 70 Pac. 382, probate court decree admitting will to probate not col- laterally attackable in ejectment brought by heirs to dispossess dev- isee under will. 6 Wall. 723-739, IS L. 967, WILLIAMSON v. SUYDAM. Syl. 2 (VI, 903). Appointment of new trustees by court. Approved in dissenting opinion in Metcalfe v. Union Trust Co., 1S1 N. Y. 54, 73 N. E. 503, majority holding where will established trust fund to provide income for wife for life and children, assigned all in- terest in remainder to her and she then released to herself all inter- est in income, trust not terminated where will made prior to Laws 1897, p. 507, c. 417, § 3. C Wall. 747-759 Kotcs on U. S. Eeports. 442 6 Wall. 747, 748, 18 L. 847, FLEMING v. SOUTTER. Syl. 1 (VI, 904). Mortgages — Decree for installment payments. Approved in Cancel v. Goodyear Shoe etc. Co., 137 Fed. IGl, equity decree giving judgment on contract by which defendant must pay monthly installments, not all of which are due, may provide for entry of judgment for future installments as they fall due. G Wall. 748-750, 18 L. 859, EAILEOAD CO v. CHAMBEELAIX. Syl. 1 (VI, 904). Citizenship in ancillary proceedings. Approved in Ames Ecalty Co. v. Big Indian Min. Co., 146 Fed. 179, 180, in suit to protect water rights against other appropriators of stream, all of whom are citizens of different states from complainant, cross-bills by some defendants against complainant and codefendants setting up priority are maintainable irrespective of citizenship. G Wall. 752-75<5, IS L. 885, .TAMES v. EAILEOAD CO. Syl. 2 (VI, 90G). Purchase of corporate property at foreclosure by directors. Approved in The Telegraph v. Loe, 125 Iowa, 22, 98 N. W. .366, where treasurer secretly purchased claim against corporation for less than full value, and then sold portion to favored members, and then secretly paid himself amount of claim from corporation's funds, he is liable to corporation for profit. 6 Wall. 756-759, IS L. 973, SMITH v. COCKEILL. Syl. 1 (VI, 906). Adoption of state practice. Approved in Jones v. Eogcrs, 85 Miss. 830, 38 So. 745, under How. & H. Dig., p. 633, § 17, providing that sales of land shall be at court- liouse of county, execution sale by marshal, on federal judgment, out- side of county where land situated, is void. VII WALLACE. 7 Wall. 1-16, 19 L. 53, GIRARD v. PHILADELPHIA. Syl. 2 (VI, 912). Effect of change on rights of old muoicipalily. Approved in School Dist. No. 76 v. Capitol Nat. Bank, 7 Okl. 50, 54 Pac. 311, debts incurred by township for erection of schoolhouse, pay- ment of teacliers and for support of separate schools, under Laws 1890, c. 79, art. 13, are county and not township debts; City of Guthrie v. Territory, 1 Okl. 202, 31 Pac. 194, 11 L. R. A. 418, change of village corporation into city, since liability of village for debts of provisional organization fixed by legislature, does relieve city succeeding village from liability for debts; South Carolina Mut. Ins. Co. v. Price, 67 S. C. 210, 45 S. E. 174, where name of insurance company changed by legislature, member of old company not deprived of membership in new. T Wall. 16-25, 19 L. 57, BANKS v. NEW YORK (NEW YORK v. CONNELLY). Syl. 4 (VI, 914). State taxation of federal obligations. Ap]irovcd in dissenting opinion in South Carolina v. United States, 199 U. S. 466, 50 L. 272, 26 Sup. Ct. 110, majority holding govern- ment may exact revenue license from dispensing agents of state con- trolling liquor business. Distinguished in Hibernia Savings etc. Soc. v. San Francisco, 200 U. S. 313, 315, 50 L. 496; 497, 26 Sup. Ct. 265, United States treas- ury checks for interest accrued on government bonds are taxable by states in hands of owner; South Carolina v. United States, 199 U. S. 452, 50 L. 266, 26 Sup. Ct. 110, government may exact internal reve- nue license from dispensing agents of state which controls liquor business. 7 Wall. 26-31, 19 L. 60, BANK v. SUPERAHLSORS. Syl. 1 (VI, 914). State tax on federal obligations. Approved in Hibernia Savings etc. Soc. v. San Francisco, 200 U. S. 314, 50 L. 496, 26 Sup. Ct. 265, United States treasury cheeks for interest accrued on government bonds are taxable by states in hands of owner. 7 Wall. 44-53, 19 L. 65, INSURANCE CO. v. TWEED. Syl. 1 (VI, 915). Distinction between law and equity prevails. Approved in Tootle v. Brown, 4 Okl. 615, 46 Pac. 551, following rule; National Surety Co. v. Cincinnati etc. Ry. Co., 145 Fed. 35, [443] 7 Wall. 44-53 Notes on U. S. Keports. 444 where action at law is tried without jury and only general finding made and ultimate facts not agreed upon, and no exceptions taken to rulings, no questions are reviewable; York v. Washburn, 129 Fed. 566, 64 C. C. A. 132, opinion of trial judge does not become special finding of ultimate facts by being copied into judgment entry. Syl. 5 (VI, 919). Insurance — Proximate and remote cause. Approved in Niver Coal Co. v. Cheronea S. S. Co., 142 Fed. 410, where, because of strike of coal miners, much coal imported by many ships, causing delay in discharge, strike not proximate cause of de- lay within charter provision exempting charterer from demurrage on account of delay caused by strikes; Quinette v. Bisso, 136 Fed. 840, 69 C. C. A. 825, one entering skiff for passage across river during fog and run down by tug and drowned not contributorily negligent because skiff had no fog horn; Texas & P. Ey. Co. v. Coutourie, 135 Fed. 473, 68 C. C. A. 177, where loss alleged to have been caused by negligence of carrier in failing to protect goods, failure to specifically define proximate and remote causes not error where jury instructed that defendant's negligence must have been direct cause of loss; Empire State etc. Co. v. Atchison etc. Ey. Co., 135 Fed. 141, where carrier was unable to deliver cattle owing to floods and put them in another place in stockyards, which were flooded after arrival and cattle changed to prevent drowning, and many died, carrier not lia- ble; Jarnagin v. Travelers' Prot. Assn., 133 Fed. 894, 895, 68 L. E. A. 499, 66 C. C. A. 622, where it was alleged that deceased died from shot fired by third persons while in charge of ofiicers, and that death caused by negligence of officers in failing to protect him, proximate cause of death was shot; Fishburn v. Burlington etc. Ey. Co., 127 Iowa, 497, 103 N. W. 4S7, where railroad snow fence negligently constructed fell and injured boy, fact that earlier in day boy found panel in fence down and lifted it in place not independent interven- ing cause of accident; Georgetown Tel. Co. v. McCullough, 118 Ky. 189, 111 Am. St. Eep. 294, 80 S. W. 784, where defendant rented two rooms in building, using one for storing materials, and owner of building employed carpenter to build partition next to storeroom, to do which dynamite in room removed by carpenter exploded, injurying defendant's employee, defendant not liable; Haley v. St. Louis Transit Co., 179 Mo. 35, 77 S. W. 731, 64 L. E. A. 295, street-ear company not liable to passenger carried beyond destination and injured by slip- ping on sidewalk while returning to destination; Shippers' Compress etc. Co. V. Davidson, 35 Tex. Civ. 560, 80 S. W. 1033, where defendant unlawfully erected gangway in street and plaintiff's horse frightened at noise of defendant's servant in running down gang#ay with truck, defendant liable for consequent injuries; Snyder v. Philadelphia Co., 54 W. Va. 158, 102 Am. St. Eep. 941, 46 S. E. 369, 63 L. E. A. 896, where, by negligent blowing off of gas-well, horses frightened and rein breaks, causing driver to fall, blowing off of well is proxi- mate cause of injury, though rein was weak. 445 Notes on U. S. Eeports. 7 Wall. 53-107 7 Wall. 53-71, 19 L. 67, THE CHINA. Syl. 1 (VI, 919). Collision — Compulsory pilot's negligence. Approved in The Bulley, 138 Fed. 172, vessel liable for tortious act of master or crew in deluging another vessel with steam and hot water, though committed without authority of owners; The Robert Eiekmcrs, 131 Fed. 642, fact that anchorage of ship selected by mas- ter of tug does not relieve her from liability for injury to another vessel against which she drifted, due to fact that she was placed too near other vessel; The Surprise, 129 Fed. 881, 64 C. C. A. 309, per- sons furnishing wharfage or supplies to vessel on order of master have lien therefor, though, under charter, charterer is bound to make all disbursements and protect vessel from litns. Syl. 6 (VI, 921). Nature of maritime lien for collision. Approved in United States v. Evans, 195 U. S. 367, 49 L. 237, 25 Sup. Ct. 46, upholding admiralty jurisdiction over libel against ship for collision with beacon standing in channel and built on piles; The W. G. Mason, 142 Fed. 917, where two tugs belonging to same owner were towing ship, leading tug directing ship's movements, but rear tug's movements directed by own master, rear tug not liable in rem for stranding of tow through fault of leading tug. 7 Wall. 71-81, 19 L. 101, LANE COUNTY v. OREGON. Syl. 7 (VI, 922). Powers reserved to states. Approved in Northern Securities Co. v. United States, 193 U. S. 348, 48 L. 705, 24 Sup. Ct. 436, upholding enforcement of anti-trust act by federal decree enjoining corporation organized in pursuance of combination of stockholders of two competing interstate railroads to acquire control of companies from exercising such control. Syl. 12 (VI, 923). Extent, manner and subjects of taxation for states. Approved in Gay v. Thomas, 5 Okl. 10, 46 Pac. 581, upholding Act 1895, providing for taxation of cattle ranging in unorganized country in county to which country is attached for judicial purposes. Syl. 14 (VI, 924). Debts arising on contract — Taxation. Distinguished in In re Waller, 142 Fed. 887, county is not entitled to priority over other creditors for money due on delinquent taxes under Bankr. Act, § 64b. 7 Wall. 82-107, 19 L. 42, AURORA CITY v. WEST. Syl. 7 (VI, 926). Judgment must be final to work estoppel. Approved in Spring Valley Coal Co. v. Patting, 210 111. 347, 71 N. E. 373, judgment of reversal and granting new trial and subse- quent entry of nonsuit by trial court, not final judgment raising estop- pel by verdict. 7 Wall. 82-107 Notes on U. S. Eeports. 446 Syl. 12 (VI, 927). Former judgment as res adjudicata. Approved in Aj^res v. Cone, 138 Fed. 781, where validity of claim of petitioning creditor is put in issue by bankrupt's answer, and de- cided in favor of creditor, claim cannot again be contested when filed for allowance before referee; Third Nat. Bank v. Atlantic City, 130 Fed. 754, 65 C. C. A. 177, where bill to establish right to fund, set- ting out grounds of right and alleging its priority was taken pro con- fesso, decree rendered thereon was, after term, conclusive against de- faulting defendant as to any matters which might have been set uj) in answer; Rew v. Independent School Dist., 125 Iowa, 31, 106 Am. St. Eep. 282, 98 N. W. 803, federal judgment based on conclusion that school district is estopped by recitals in bonds from setting up certain defenses is res adjudicata in state suit between same parties involving same subject matter. Syl. 14 (VI, 928). Judgment on demurrer, when final. Approved in Frye v. Milej^, 54 W. Va. 333, 46 S. E. 139, where bill to set aside fraudulent conveyance before creditor's demand is due is dismissed, decree must save plaintiff right to prosecute other proper suit in respect to matters complained of in bill. Syl. 15 (VI, 928). Judgment on demurrer as res adjudicata. Approved in Board of County Commrs. v. Cross, 12 N. M. 77, 7" Pac. 616, where, on sustaining demurrer, material issues had to bo passed on and plaintiff did not amend but allowed entry of dis- missal, judgment was res adjudicata. Syl. 17 (VI, 928). Judgment on demurrer as bar. Approved in Board of County Commrs. v. Cross, 12 N. M. 76, 73 Pac. 616, following rule; Loekhart v. Leeds, 12 N. M. 167, 76 Paf. 315, judgment against plaintiff on bill to have mine location declared void for fraud and collusion of defendants and violation of agree- ment to locate claim for plaintiff, bars suit to have property declared to be held in trust for plaintiff. Syl. 21 (VI, 930). Former judgment, when conclusive. Approved in Delaware etc. E. Co. v. Kutter, 147 Fed. 59, where only defense pleaded in action for money due under contract was breach of contract by plaintiff, judgment therein is conclusive only on that question in subsequent suit for wrongful termination of con- tract by defendant; Georgia E. E. etc. Co. v. Wright, 132 Fed. 917, state decision that railroad charter was contract precluding imposition of tax in excess of certain percentage is res adjudicata in subsequent suit for taxes for other year under different statute; Pratt v. Eatliff, 10 Okl. 174, 61 Pac. 525, holding decree in suit to enjoin execution on judgment alleged to be void as res adjudicata in replevin against sheriff holding under execution on judgment; Moore v. Snowball, 98 Tex. 24, 107 Am. St. Eep. 596, 81 S. W. 8, 66 L. E. A. 745, decree in 447 Notes on U. S. Eeports. 7 Wall. 107-139 trespass to try title, where it was alleged tax sale void for want of service and because property sold in bulk not res adjudicata in suit for reconveyance, alleging invalidity of tax sale because of irregularities causing property to be sold for inadequate price; State v. McEldow- ney, 54 W. Va. 702, 47 S. E. 653, decree in suit assailing tax deed for errors and irregularities in sale is not res adjudicata on question of power to sell for taxes. 7 Wall. 107-113, 19 L. 154, DURANT v. ESSEX CO. Syl. 2 (VI, 934). Decree of dismissal not final decree. Approved in Robinson v. American Car etc. Co., 142 Fed. 171, de- cree of dismissal without prejudice of bill for infringement no estoppel in question of validity of patent. 7 Wall. 118-122, 19 L. 8G, COWLES v. MERCER COUNTY. Syl. 4 (VI, 938). State cannot limit federal jurisdiction. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 949, 950, 67 L. R. A. 761, 66 C. C. A. 55, Duluth charter which provides for ap- peals from allowance or rejection of city claims to state court, and prohibits payment pending appeals, does not restrict federal court jurisdiction over claims. Distinguished in Parks Co. v. City of Decatur, 138 Fed. 554, munic- ipal corporation not being suable by attachment in courts of another state, such suit is not removable. 7 Wall. 122-131, 19 L. 125, NICHOLS v. UNITED STATES. Syl. 11 (VI, 940). Judicial review of revenue department rulings. Approved in Christie-Street Com. Co. v. United States, 136 Fed. 330, 69 C. C. A. 464, claim for back internal revenue taxes illegally exacted may be enforced by action directly against United States; Cornell Steamboat Co. v. United States, 130 Fed. 482, and United States v. Cornell Steamboat Co., 202 U. S. 195, 50 L. 992, 26 Sup. Ct. 648, both upholding district court's jurisdiction over suit to recover from United States salvage on duties paid on cargo afterward saved from fire while in possession of customs officers. 7 V>'all. 132-139, 19 L. 106, LINCOLN v. CLAFLIN. Syl. 8 (VI, 942). Evidence of contemporaneous frauds. Approved in Exchange Bank v. Moss, 149 Fed. 344, in action for money- obtained by means of conspiracy extending over long period, evidence of similar deceits by cashier of defendant are admissible; Brooks V. United States, 146 Fed. 231, in prosecution for using mails to defraud, letters other than those laid in indictment purporting to have been written by defendants' company are admissible; Olson v. United States, 133 Fed. 854, 67 C. C. A. 21, under indictment for conspiracy to defraud government of lands by illegal entries, evidence that dc- 7 Wall. 139-152 Notes on U. S. Reports. 448 fendant induced other entries by other person at same time is admis- sible. Syl. 10 (VI, 944). Allowance of interest at law. Approved in Black v. Minneapolis etc. R. R. Co., 122 Iowa, 37, 96 N. W. 986, in action against railroad for burning of hay, jury may add interest to damages sustained; Union Water Power Co. v. Lewiston, 101 Me. 580, 65 Atl. 74, upholding denial of interest on value of each year's excess of water drawn by city in excess of grant. Syl. 12 (VI, 944). General exception unavailable where one cor- rect. Approved in Kansas City etc. Ry. Co. v. Prunty, 133 Fed. 21, 66 C. C. A. 163, applying principle to objection to charge in action for per- sonal injuries by employee. 7 Wall. 139-152, 19 L. 109, GREEN v. VAN BUSKIRK. Syl. 7 (VI, 947). Law governing sales of personalty. Approved in Reed v. Munn, 148 Fed. 748, where claimants of conflict- ing mining locations conveyed to trustee to adjust controversy, their equitable interest is subject to execution; In re Greene, 134 Fed. 138, bankrupt's chattel mortgage duly recorded in state where property lo- cated is valid as against creditors, though not recorded in state of residence of mortgagor and mortgagee; In re Brannock, 131 Fed. 820, under Iowa Code, § 2906, chattel mortgage on property in mortgagor's possession in county where he is at work and in which he actually re- sides while at work, is properly recorded in such county, though resi- dence there only temporary; Smead v. Chandler, 71 Ark. 511, 76 S. W. 1068, 65 L. R. A. 353, applying rule to trust deed executed by Mis- souri corporation in that state and assigning property lor benefit of creditors; Cooper v. Philadelphia Worsted Co. (Lees v. Harding etc. Co.), 68 N. J. Eq. 629, 60 Atl. 355, where contract with reference to title of goods situated in another state is there made between resident thereof and New Jersey corporation, to be there performed, it is gov- trued, as to its effect, by laws of that state; Greenville Nat. Bank v. Evans-Snyder-Buel Co., 9 Okl. 370, 60 Pac. 254, chattel mortgage duly filed according to laws of state wherein property situated is superior to rights of one attaching property after its removal to this territory though mortgage not recorded. Distinguished in Studebaker Bros. Co. v. Mau, 14 Wyo. 78, 82 Pac. 5, where vendee in conditional sale removes property to another state without consent of vendor, latter may enforce lien against subsequent bona fide purchasers, without complying with registration laws of other state. 449 Notes on U. S. Eeports. 7 Wall. 152-218 7 Wall. 152-165, 19 L. 129, THE SIREN, Syl. 5 (VI, 952). Damages for collision enforceable in rem. Approved in The John McCrakes, 145 Fed. 707, 708, vessels owned by port of Portland used by it in its work are not seizable by United States in admiralty suit in rem to recover damages for mari- time tort. Syl. 12 (VI, 952). Government's transfer subject to mortgage. Approved in Walker v. United States, 139 Fed. 413. denying right of government years after expiration of term of office to recover sums paid ma.rshal, who has in good faith rendered accounts for services of deputies which have been paid; United States v. War- ren, 12 Okl. 365, 71 Pac. 690, where government sues, defendant has setoff to extent of demand. 7 Wall. lSS-195, 19 L. 35, GOEDOX v. UNITED STATES. Syl. 2 (VI, 957).. Arbitrator defined. Approved in Levin v. Northwestern Nat. Ins. Co., 146 Fed. 77, award of arbitrators in federal action at law on insurance policy is unimpeachable for fraud or misconduct of arbitrators. Syl. 3 (VI, 957), Adjustment of government claims — Arbitra- tion. Approved in United States v. Foreman, 5 Okl. 257, 48 Pac. 98, one suing government in territorial court for recovery of money paid for land entry on which patent erroneously allowed and afterward canceled, need not show surrender of duplicate receipt to Secretary of Interior nor execution of relinquisliment of claim to land. 7 Wall. 196-205, 19 L. 113, THE GRACE GIRDLER. Syl. 5 (VI, 958). Inevitable accident defined. Approved in The .Jumna, 149 Fed. 172, applying rule to collision between tow and steamer and between tow and pier. 7 Wall. 205-218, 19 L. 134, BROWN v. PIERCE. Syl. 7 (VI, 960). What is duress warranting setting deed aside. Approved in Burnes v. Burues, 132 Fed. 493, where surviving brother and partner on opposition to proposed formation of corporation and division of stock threatened to administer on estate as surviving partner, settlement as he proposed not void for duress; First Nat. Bank v. Sargent, 65 Neb. 601, 91 N. W. 597, 59 L. R. A. 29G, where one in financial distress and indebted to bank conveyed land by absolute deed as security and thereafter procured purchaser but bank refused to consent to sale or release its interest unless given large bonus, bonus recoverable by debtor. 2& 7 Wall. 219-290 Notes on U. S. Eeports. 450 Syl. 13 (VI, 961). Priority of judgment lien. Approved in Lewis v. Atherton, 5 Okl. 94, 47 Pac. 1072, under Stat. 1893, c. 21, § 13, district court judgment agaiust one seised of realty and in whom title appears of record, is lien on property, though he had previously conveyed realty to another. 7 Wall. 219-228, 19 L. 158, SILVER v. LADD. Syl. 6 (VI, 963). Equitable relief where patent to wrong per- son. Approved in Johnson v. Pacific Coast S. S. Co., 2 Alaska, 238, and Smith V. Love, 49 Fla. 239, 38 So. 379, both following rule; Kerna V. Lee, 142 Fed. 988, arguendo. 7 Wall. 229-258, 19 L. 141, BRONSON v. EODES. Syl. 3 (VI, 965). Payment of money defined. Approved in Oneida Co. v. Tibbits, 125 Wis. 15, 102 N. W. 899, certificates issued in payment of expenses of reviewing county equali- cation are not receivable for taxes. 7 Wall. 258-262, 19 L. 149, BUTLER v. HORWITZ. Syl. 5 (VI, 968). Medium of payment — Contracts. Approved in San Juan v. St. .lohn's Gas Co., 195 U. S. 520, 49 L. 304, 25 Sup. Ct. 108, determining medium of payment under con- tract for street lighting in Porto Rico. 7 Wall. 262-269, 19 L. 88, NORTHERN CENTRAL R. R. CO. v. JACKSON. Syl. 2 (VI, 970). Tax on security and on debtor distinguished. Approved in Mosely v. State, 115 Tenn. 57, 86 S. W. 716, interest on government bonds not taxable as income. Syl. 3 (VI, 970). Tax on corporate property in other state. Approved in Union etc. Transit Co. v. Kentucky, 199 U. S. 202, 50 L. 153, 26 Sup. Ct. 36, assessment under Ky. St., § 4020, on roll- ing stock permanently located in other state denies due process to Kentucky railroad. 7 Wall. 272-290, 19 L. 74, ST. PAUL ETC. R. R. CO. v. SCHUB- MEIR. Syl. 4 (VI, 972). Meander lines not boundary lines. Approved in Johnson v. Hurst, 10 Idaho, 319, 321, 77 Pac. 788, 789, following rule; Whitaker v. McBride, 197 U. S. 512, 49 L. 861, 25 Sup. Ct. 530, patentee of government lands bordering on stream owns island on his side of center; Peoria v. Central Nat. Bank, 224 111. 52, 79 N. E. 298, applying rule where city claimed land as street; McBride v. Steinweden, 72 Kan. 515, 83 Pac. 824, approving defini- 451 Notes on U. S. Eeports. 7 Wall. 290-295 tion of "island"; Sherwin v, Bitzcr, 97 Minn. 255, 106 K W. 1047, transfer of government lot abutting on lake by number according to survey conveys all land ■which has become part of lot by recession of lake; Kleven v. Gunderson, 95 Minn. 251, 104 N. W. 6, applying rule where meander corners of government survey lost; Webber v. Axtell, 94 Minn. 379, 102 N. W. 916, patentee of meandered lots entitled to island in lake which later was connected with lots by sandbar, though island patented to another. Distinguished in Alaska Gold Mining Co. v. Barbridge, 1 Alaska, 324, 325, locator of mining claim cannot include in claim mineral lands that may extend under the sea below high-water mark. Syl. 8 (VI, 975). Title of riparian owner in stream. Approved in Franzini v. Layland, 120 Wis. 82, 97 N. W. 503, riparian proprietor on navigable stream owns unsurveyed island on his side of ordinary high-water mark. Syl. 9 (VI, 970). Eiparian owner's rights to wjharf out. Ai)proved in United States v. Roth, 2 Alaska, 202, homestead en- try on lands abutting navigable stream gives cntryman exclusive right to use and occupation of shore laud between high and lew water mark as against trespasser. Distinguished in Sutter v. Heckman, 1 Alaska, 8S. owner of up- lands bordering on sea has no exclusive right to fish alung tide flats. Syl. 11 (VI, 978). City's title in streets. Approved in Eiverside v. MacLain, 210 111. 321, 102 Am. St. Rep. 164, 71 N. E. 413, 66 L. R. A. 288, determining that city had ac- cepted dedication as park of land which had been so platted prior to incorporation. (VI, 972.) Miscellaneous. Cited in Minnesota Canal etc. Co. v. Koochiching Co., 97 Minn. 440, 107 N. W. 4U9, detiuiug navigable stream. 7 Wall. 290-295, 19 L. 190, MEAD v. BALLARD. Sj'l. 1 (VI, 979). Conveyance on condition that building erected. Approved in Rannels v. Rowe, 145 Fed. 300, conveyance on condi- tion of building of railroad within three years is on condition sub- sequent; State V. Irvine, 14 Wyo. 386, 84 Pac. 105, where state in- corporated agricultural college, which was public corpora tion, fact that property thereafter given in trust for it did not preclude re- peal of incorporation act. Syl. 4 (VI, 980). Deeds — "Pernmuent" in condition subsequent defined. Approved in Union Stockyards Co. v. Nashville Pack. Co., 140 Fed. 706, applying rule where land deed for erection of packing- 7 Wall. 299-327 Notes on U. S. Reports. 452 house which was built but subsequently abandoned; Lucas v. New York etc. E. Co., 130 Fed. 438, 64 C. C. A. 638, where, in considera- tion of grant of land to village for roadway, railroad when it changed its depot was to make entrances to depot grounds, which it did, but thereafter village changed grade of avenue so that en- trance was obstructed, railroad not liable for not continuing entrances, 7 Wall. 299-306, 19 L. 40, DUEY v. CEOSS. Syl. 4 ("\'T[, 980). Corporate directors act for benefit of all. Approved in In re Castle Braid Co., 145 Fed. 230, 231, 235, up- holding contract between corporation and directors for purchase of latter 's shares of stock in order to settle disputes and terminate litigation; Burns v. Cooper, 140 Fed. 277, applying rule where guardian sold ward's property under order of court, for purpose of having title transferred to himself; City Nat. Bank v. Goshen etc. Mills Co., 35 Ind. App. 579, 69 N. E. 211, applying rule where di- rector of insolvent resigned after it had been agreed that he should resign and have a preference; Attalla Iron Ore Co. v. Virginia etc. Coke Co., Ill Tenn. 536, 77 S. W. 776, where managing officers of corporation formed secret agreement with another to form new cor- poration in which officials were to have controlling interest, and then they entered into contract with new corporation on behalf of old, latter could annul contract. Distinguished in Beach v. McKinnon, 148 Fed. 736, bill by re- ceiver of insolvent corporation against director for accounting as to notes alleged to have been transferred from corporation to de- fendant is insufficient where it does not allege transfer was fraud- ulent. 7 Wall. 306-313, 19 L. 91, EDMOXDSON v. BLOOMSHIEE. Syl. 5 (VI, 9S3). Bond unnecessary to constitute appeal. Approved in In re T. E. Hill Co., 148 Fed. 833, 834, neither citation nor bond are jurisdictional requisite to bankruptcy appeal. 7 Wall. 316-320, 19 L. 192, BOYD v. MOSES. Syl. 2 (VI, 984). Carrier may refuse goods injurious to others. Approved in Birt v. Hardie, 132 Fed. 66, upholding refusal of load of flour where master had previously loaded kerosene and feared damage to flour. 7 Wall. 321-327, 19 L. 223, TWITCHELL v. THE COMMON- WEALTH. Syl. 5 (VI, 985). Fifth amendment not limitation on states. Approved in Ex parte Munn, 140 Fed. 783, federal court cannot, on habeas corpus, release witness imprisoned for refusing to answer questions on ground that answers might incriminate him; In re 453 Notes on U. S. Kcports. 7 Wall. 327-386 Briggs, 135 N. C. 121, 47 S. E. 404, upholding Code, § 1215, com- pelling testimony by gamblers; State v. Patterson, 134 N. C. 618, 47 S. E. 810, upliolding Laws 1903, p. 472, c. 349, § 2, providing that any place to which liquor shall be shipped for delivery to purchaser shall be deemed place of sale. 7 Wall. 327-331, 19 L. 93, TYLEE v. BOSTON. Syl. 2 (VI, 988). Patent for new chemical combination — Descrip- tion. Approved in Panzl v. Battle Is. Paper Co., 138 Fed. 53, 70 C. C. A. 474, Panzl patent No. 644,367, claims 1 and 2, for composition of material for lining pulp digesters, is void for failure to specify pro- portions of ingredients. Syl. 4 (VI, 988). Patents— " Equivalents " defined. Approved in Chadeloid Chemical Co. v. De Eonde Co., 14G Fed. 992, substitution of acetone for alcohol in paint remover is use of chem- ical equivalent. 7 Wall. 347-354, 19 L. 62, GAINES v. THOMPSON. Syl. 1 (VI, 991). Mandamus to control discretionary action. Approved in Adams v. Couch, 1 Okl. 34, 26 Pac. 1015, following rule; Bates etc. Co. v. Payne, 194 U. S. 109, 48 L. 895, 24 Sup. Ct. 595, refusing to enjoin postmaster general for refusing to admit to periodical to mails as second-class matter; Barnes v. Wilson Co. Commrs., 135 N. C. 39, 47 S. E. 741, refusing to mandamus commis- sioners to issue liquor license; Wilbourne v. Baldwin, 5 Okl. 272, 275, 47 Pac. 1048, denying injunction on application of homesteader where Interior Department has decided that Indian lands are not open to settlement; Fitzgerald v. Keith, 5 Okl. 263, 48 Pac. Ill, ter- ritorial courts cannot review^ action of Interior Department in dis- posing of public domain until title has passed from government; Laramie Nat. Bank v. Steinhoff, 11 Wyo. 307, 71 Pac. 994, where no patent issued on certificate of purchase, court cannot determine title between holder of certificate and claimant under entry; dissenting opinion in Sproat v. Durland, 2 Okl. 52, 35 Pac. 888, majority grant- ing injunction on application of homesteader against adverse claim- ant interfering with possession, though contest pending in Land Department. 7 Wall. 364-386, 19 L. 214, EX PAETE BEADLEY. Syl. 6 (VI, 995). Power to punish attorneys for misconduct. Approved in State v. Mosher, 128 Iowa, 86, 103 N. W. 107, trial court as authorized by statute may revoke license of attorney though supreme court has exclusive authority to admit. 7 Wall. 386-392 Notes on U. S. Reports. 454 Syl. 9 (VI, 996). Mandamus to inferior courts. Approved in State v. Graves, 66 Neb. 23, 92 N. W. 146, granting mandamus to vacate injunction granted without jurisdiction. Distinguished in Smith v. Connor, 98 Tex. 438, 84 S. W. 817, man- damus to inferior court cannot be substituted for appeal in cases where appeal not given. Syl. 12 (VI, 996). Mandamus for abuse of discretion. See 98 Am. St. Eep. 899, note. 7 Wall. 386-392, 19 L. 257, EIDDLESBARGER v. HARTFORD INS. CO. Syl. 1 (VI, 997). Limitation statutes give no right of action. Approved in Lynchburg etc. Co. v. Travelers' Ins. Co., 140 Fed. 724, conduct of insurer inducing delay in bringing suit beyond time limited in policy is not entire annulment of limitation clause. Syl. 3 (VI, 997). Shortening limitations by contract. Approved in Mead v. Phoenix Ins. Co., 68 Kan. 435, 75 Pac. 475, lU L. R. A. 79, applying rule where minor's house destroyed during minority and suit on policy brought on attainment of majority but after time limited in policy. Svl. 4 (VI, 997). Strict compliance with insurance contract re- quired. Approved in .Johnson v. Maryland Casualty Co., 73 N. H. 261, 111 Am. St. Eep. 610, 60 Atl. 1010, delay in giving notice of accident beyond time limit prescribed in policy bars recovery though delay result of the accident. Syl. 7 (VI, 998). Insurance — Condition fixing time to sue valid. Approved in Ward v. Pennsylvania Fire Ins. Co., 82 Miss. 129, 33 So. 842, following rule; Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 149 Fed. 958, where employer's liability policy provided for bar of action thirty days after accrual of right, but insurer participated in negotiations for settlement for more than ninety days after ex- piration of limit, limitation waived; Luekenbaeh v. Home Ins. Co., 142 Fed. 1026, upholding provision in marine policy limiting time to sue thereon and providing that if action brought after time lim- ited, lapse of time deemed conclusive of invalidity of claim; Spinks v. Mutual etc. Life Assn., 137 Fed. 170, applying rule to life policy; Paul V. Fidelity etc. Co., 186 Mass. 416, 104 Am. St. Rep. 594, 71 N. E. 802, running of limitations provided for in policy for action thereon not stopped by injunction against action thereon, issued after limitation commenced to run; Fey v. I. O. O. F. Mut. L. Ins. Soc. 120 Wis. 367, 98 N. W. 209, statute extending time to sue, where person entitled to sue dies, does not apply to insurance policy limit- ing time for beneficiary to sue. 455 Notes on U. S. Keports. 7 Wall. 392-425 Denied in Union etc. Ins. Co. v. Spinks, 119 Kan. 267, 83 S. W. 61G, provision in life policy that no suit shall be • commenced thereon after lapse of one year from death is void where statute prescribes fifteen year limitation. 7 Wall. 392-416, 19 L. 117, CHICAGO ETC. E. E. CO. v. HOWARD. Syl. 1 (VI, 1000). Corporate assets as trust fund for creditors. Approved in Ex parte Savings Bank of Eock Hill, 73 S. C. 396, 53 S. E. 615, where liquidating bank turned over assets to another bank to pay creditors, and before settlement liquidating bank became in- solvent creditor, former had prior lien on assets in possession of re- ceiver of latter belonging to former bank. Distinguished in Anderson v. War Eagle etc. Min. Co., 8 Idaho, 801, 72 Pac. 673, fact that manager and stockholder in corporation be- came manager of new corporation, which purchased all stock of old company, does not make new company liable for debts of old. Syl. 6 (VI, 1002). Corporations may issue negotiable paper. Approved in In re New York Car Wheel Works, 141 Fed. 435, up- holding validity of indorsement by corporation of notes of another corporation; Fidelity Trust Co. v. Louisville Gas Co., 118 Ky. 598, 111 Am. St. Eep. 302, 81 S. W. 930, where corporation authorized to issue bonds for half million it may guarantee payment of million dollars worth of bonds sold by it after it had lawfully acquired them. See 111 Am. St. Eep. 312, 328, note. Syl. 8 (VI, 1003). Estoppel of corporations by acts. See 111 Am. St. Eep. 322, note. Syl. 12 (VI, 1003). Necessary parties to suit against corporation. Distinguished in Guardian Trust Co. v. Kansas City etc. Ey. Co., 146 Fed. 339, 342, action on liability of foreclosure purchaser for mortgagor's debt under reorganization scheme not impeachment of decree in case in which liability not litigated in foreclosure suit. 7 Wall. 416-425, 19 L. 166, SHEETS v. SHELDON. Syl. 2 (VI, 1004). Equitable relief against ejectment judgment. Approved in Brewster v. Lanyon Zinc Co., 140 Fed. 816, upholding equity jurisdiction over suit to cancel oil and gas lease where work of development and production not exercised diligently. Syl. 6 (VI, 1005). Tenant's repairs at landlord's expense. Approved in American Bonding Co. v. Pueblo Inv. Co., 150 Fed. 28, following rule. Syl. 7 (VI, 1005). Tenant's liability for rent on destruction of premises. Approved in Stevens v. Wadleigh, 6 Ariz. 94, 46 Pac. 72, 6 Ariz. 357, 57 Pac. 624, where owner of land having right to use water for 7 Wall. 425-487 Notes on U. S. Ecports, 456 irrigation covenants to defend lessee of land in peaceable possession, failure to deliver water does not relieve from payment of rent. 7 Wall. 425-433, 19 L. 260, PAYNE v. HOOK. Syl. 2 (VI, 1006). Federal equity not limited by states. Approved in Carlson v. Sullivan, 146 Fed. 479, constitutional pro- vision relating to jury trials applies to suit in federal court in terri- tory by one in possession of land claiming whole title; dissenting opinion in Moore v. Fidelity Trust Co., 138 Fed. 1009, majority deny- ing federal jurisdiction over suit by distributee under will for ac- counting against decedent's surviving partner, who was executor of estate in probate in state court. Syl. 4 (VI, 1010). Equity jurisdiction to compel administrator to account. Distinguished in Thiel Detective etc. Co. v. McClure, 130 Fed. 58, 59, federal court has no equitable jurisdiction over suit by creditor of estate against executor for accounting. 7 Wall. 433-446, 19 L. 95, PACIFIC INS. CO. v. SOULE. Syl. 1 (VI, 1011). Congressional powers as to taxation. Approved in McCray v. United States, 195 U. S. 57, 49 L. 96, 24 Sup. Ct. 769, upholding Comp. St. 1901, p. 2228, § 8, taxing artificially colored oleomargarine. 7 Wall. 447-453, 19 L. 207, WAED v. SMITH. Syl. 5 (VI, 1014). Agent can only accept money. Approved in Cowling v. American Express Co., 102 Mo. App. 372, 76 S. W. 713, one acepting draft in payment of check he has for collection is liable where draft is stopped by debtor's order, 7 Wall. 463-482, 19 L. 249, UNITED STATES v. ADAMS. Syl. 2 (VI, 1018). Acceptance of amount allowed by government. Approved in County Commrs. v. Seawell, 3 Okl. 287, 41 Pae. 594, where claim against county is allowed in part and warrant drawn for part allowed is accepted, recovery on disallowed part of claim is barred. 7 Wall. 482-487, 19 L. 278, UNITED STATES v. KIEBY. Syl. 1 (VI, 1019). Obstructing mails— Intent. Approved in United States v. Fifty Waltham Watch Movements, 139 Fed. 300, where one intentionally failed to enter goods at custom- house, though if duly imported they are free of duty, merchandise is forfeitable under Eev. St., § 3082. Syl. 4 (VI, 1020). Statutory intent governs. Approved in Mottley v. Louisville etc. E. Co., 150 Fed. 411, Act of 1906, prohibiting free passes, did not invalidate contract made in 457 Notes on U. S. Eeports. 7 Wall. 49Golo 1871, by which carrier agreed to give pass for life in consideration of release of damages; Whitfield v. Aetna Life Ins. Co., 144 Fed. 360, construing Eev. St. Mo. 1899, § 7896, relating to suicide of in- sured as defense to action on policy; United States v. Ninety-nine Diamonds, 139 Fed. 965, 2 L. R. A. (N. S.) 185, one having right of possession of and lien on goods for dutj' paid, with option to pur- chase, is not liable under Comp. St. 1901, p. 1895, § 9, because he making entry as owner; United Shoe M. Co. v. Duplessis Shoe M. Co., 133 Fed. 933, under Comp. St. 1901, j). 589, patent suit against alien may be brought in any district in which defendant is found; Carri- gan V. Stillwell, 99 Me. 437, 59 Atl. 685, 68 L. R. A. 386, Rev. St., c. 28, § 38, requiring fire-escapes on buildings whore presence of workmen required above first floor, does not apply to ground floor restaurant, whose kitchen is on third floor, and only three employed in kitchen; Moody v. McKinney, 73 S. C. 440, 53 S. E. 544, where person did not voluntarily lend team to another under circumstances which should have led him to believe it would be used to transport liquor at night, team not liable to confiscation imder Cr. Code, 594; Jacobson v. Massachusetts, 197 U. S. 39, 103 Am. St. Rep. 876, 49 L. 655, 25 Sup. Ct. 358, arguendo. 7 Wall. 496-499, 19 L. 283, KELLY v. OWEX. Syl. 1 (VI, 1022). Marriage of w^oman to citizen makes her citizen. Approved in Hopkins v. Fachaut, 130 Fed. 843, 65 C. C. A. 1, marriage of alien woman to citizen pending proceedings for her de- portation entitles her to discharge on habeas corpus; Potter v. Hall, 11 Old. 181, 65 Pac. 844, widow of citizen who made homestead entry is citizen, and may acquire land under Rev. St, U. S., § 1994. 7 Wall. 506-515, 19 L. 264, EX PARTE McCARDLE. Syl. & (VI, 1024). Federal appellate jurisdiction limited by statute. Approved in Jung v. Myer, 11 N. M. 389, 68 Pac. 936, Laws 1901, c. 82, authorizing appeals to supreme court from interlocutary orders affecting substantial rights, is void as conflicting with organic act. Syl. 5 (VI, 1025). Where jurisdiction ceases court must dismiss. Approved in United States v. Sena, 12 N. M. 413, 414, 78 Pac. 61, 62, repeal of Laws 1901, p. 190, c. 99, dej^rived supreme court of jurisdiction over criminal appeals not taken during term at which judgment rendered. Distinguished in dissenting opinion in United States v. Sena, 12 N. M. 417, 78 Pac. 63, majority holding repeal of Laws 1901, p. 190, c. 99, deprived supreme court of jurisdiction over criminal ap- peals not taken during term at which judgment rendered. Syl. 9 (VI, 1027). Repeal of act extending jurisdiction. Approved in Sena v. United States, 147 Fed. 488, where defendant in criminal case took appeal within time provided by statute, repeal 7 Wall. 523-559 Notes on U. S. Eeports, 458 of such statute before hearing of appeal did not deprive appellate court of jurisdiction; State v. Van Huse, 120 Wis. 21, 97 N. W. 505, Laws 1903, p. 234, c. 160, legalizing attempted organization of school district, not void as retroacting on past controversy. 7 Wall. 523-541, 19 L. 285, EANDALL v. BRIGHAM. Syl. 2 (VI, 1029). Judicial officers not liable for judicial acts. Approved in United States v. Bell, 135 Fed. 338, 68 C. C. A. 144, applying rule in suit for damages against circuit court clerk for re- fusal to issue summons in action against state judge; Mitchel v. Galen, 1 Alaska, 340, justice of peace acting in collusion with others and issuing warrant for arrest of mine owner for trespass on own property, so that mine may be jumped, is liable to civil suit; Corn- stock v. Eagleton, 11 Okl. 492, 69 Pac. 957, probate judge not liable for false imprisonment for issuing commitment on judgment in bastardy proceeding; Smith v. Jones, 16 S. D. 345, 92 N. W. 1086, denying right of action against justice of peace for issuing warrant on defective complaint. Syl. 3 (VI, 1030). Method of disbarment of attorneys. Approved in In re Branch, 70 N. J. L. 548, 57 Atl. 435, Act April 7, 1903. relieving law clerks from examination, is void. Syl. 6 (VI, 1031). Following state statutory construction. Approved in City of Sioux Falls v. Farmers' Loan etc. Co., 13G Fed. 730, 69 C. C. A. 373, applying rule with reference to power of city to increase indebtedness for purpose of constructing waterworks, 7 Wall. 542-559. 19 L. 244, COPPELL v. HALL. Syl. 10 (VI, 1033). Illegality of contract cannot be waived. Approved in Fisher v. Hampton Transportation Co., 136 Mich. 223, 98 N. W. 1014, invalidity of contract need not be pleaded where com- plaint shows contract sued on is against public policy; McGuffin v. Coyle, 16 Okl. 653, 85 Pac. 955, in action on note, where language of note and all evidence shows it to be against public policy, demurrer to evidence sustained; Light v. Conover, 10 Okl. 737, 63 Pac. 968, no action is maintainable on lease made without consent of Indian agent for pasturage of cattle on Indian reservation; Kelly v. Courter, 1 Okl. 282, 30 Pac. 373, where under lease of building for keeping liquor for sale, landlord agrees to supply ice for cooling, tenant can- not recover for damages caused by failure to supply ice where sale of liquor is illegal; dissenting opinion in Stewart v. Wright, 147 Fed. 339, 342, majority holding party given double cross in swind- ling scheme may recover his money from co-swindlers; dissenting opinion in Monahan v. Monahan, 77 Vt. 151, 59 Atl. 174, 70 L. R. A. 935. majority holding where complainant seeks to impress securities with trust and issue is solely as to title, relief not denied him though securities placed in defendant's name to avoid taxation. 459 Notes on U. S. Keports. 7 Wall. 565-619 Distinguishecl in Stewart v. Wright, 147 Fed. 334, party given double cross in swindling schomn may recover his money from co- swindlers; Minnesota Sandstone Co. v. Clark, 35 Wash. 472, 77 Pac. 805, illegality of provision in contract for sale of store that seller would return to buyer freight rebates allowed by carrier does not affect rest of contract. 7 Wall. 565-571, 19 L. 151, LABER v. COOPER. Syl. G (VI, 1038). Denial of new trial not reviewable. Approved in United Engineering etc. Co. v. Broadnax, 136 Fed. 353, 69 C. C. A. 177, decision on motion for new trial is not subject of re- view in federal appellate court. 7 Wall. 580-583, 19 L. 263, UNITED STATES v. ROSENBUEGH. Syl. 1 (VI, 1041). Discretion to quash indictment. Approved in Dillard v. United States, 141 Fed. 305, applying rule to motion to quash indictment for misjoinder of courts; Chadwick v. United States, 141 Fed. 235, applying rule in prosecution for con- spiracy with national bank officer to wrongfully certify cheeks; McGregor v. United States, 134 Fed. 192, 194, applying rule in prose- cution for conspiracy to defraud government; Radford v. United States, 129 Fed. 52, 63 C. C. A. 491, denial of motion to quash indict- ment because it is based on incompetent evidence is matter of dis- cretion. 7 Wnll. 583 610. 19 L. 177, AGAWAM CO. v. JOEUON". Syl. 7 (VI, 1042). First person perfecting machine is inventor. Approved in United Shirt & Collar Co. v. Beattie, 149 Fed. 742, Pine patent No. 645,871, for collar-folding machine, valid though patentee emi)loyed another to construct machine. Syl. 9 (VI, 1043). Employees entitled to own inventions. Approved in Eastern etc. Bag Co. v. Continental etc. Bag Co., 142 Fed. 503, upholding Liddell patent No. 558,969, claims 1, 2, and 7, for paper-bag machine. Syl. 16 (VI, 1044). Patents — Burden of proving infringement. Approved in Scott v. Fisher etc. Mach. Co., 139 Fed. 145, following rule. 7 Wall. 613-619, 19 L. 203, MORGAN v. BELOIT. Syl. 1 (VI, 1045). Liability for debts on division of municipality. Approved in Gamble v. Rural etc. School Dist., 146 Fed. 119, under Iowa Code 1893, § 1715, suit by bondholder of divided school district to enforce payment by new districts, is within federal equity juris- diction; Chicago V. Cicero, 210 111. 294, 71 N. E. 358, upholding Laws 7 Wall, 619-656 Notes on U. S. Eeports. 460 1903, p. 113, § 1, enlarging corporate limits of sanitary district created by prior act. Syl. 3 (VI, 1045). Equity — Inefficiency of law remedy. Approved in Gamble v. Eural etc. Dist., 146 Fed. 120, upholding federal equity jurisdiction over suit by bondholder of divided school district to enforce payment by new district. 7 Wall. 619-624, 19 L. 205, BELOIT v. MORGAN". Syl. 1 (VI, 1046). Conclusiveness of judgment. Approved in Allen v. City of Davenport, 132 Fed. 221, 65 C. C. A. 641, where, after commencement of suit to enjoin street improvement and levy of special assessment therefor, work done and city paid for it, and later appellate court decided contract void, decree barred suit by city to enforce lien as on quantum meruit under curative statute; Lockhart v. Leeds, 12 N. M. 167, 76 Pac. 315, judgment against plaintiff on bill to have mine location declared void for fraud of defendants and violation of agreement to locate claim for plain- tiff bars suit to have property declared to be held in trust for plain- tiff; Board of County Commrs. v. Cross, 12 N. M. 76, 73 Pac. 616, where, on sustaining demurrer, material issues had to be passed on and plaintiff did not amend, but allowed entry of dismissal, judgment was res adjudicata; dissenting opinion in Leathe v. Thomas, 218 111. 2GS, 75 N. E. 818, majority holding that finding that plaintiff was not liable to defendant on judgment pleaded as counterclaim was res adjudicata, not ground for reversal of finding for defendant on counterclaim. 7 Wall. 624-646, 19 L. 266, THE BELFAST. . Syl. 14 (VI, 1054). States cannot create maritime liens. Approved in John Meunier Gun Co. v. Lehigh Valley etc. Co., 123 Wis. 148, 101 N. W. 388, action for damage to goods shipped not within exclusive admiralty jurisdiction where it is set up in answer that goods shipped by water and damaged while being lightered after grounding of ship; Arnold v. Eastin, 116 Ky. 699, 76 S. W. 856, arguendo. 7 Wall. 646-656, 19 L. 211, WHITE'S BANK v. SMITH. Syl. 2 (VI, 1056). Which is vessel's home port. Approved in The New Bninswick, 129 Fed. 896, 64 C. C. A. 325, sea-going vessel owned by corporation of another state not liable for lien for supplies though she was enrolled at port where supplies furnished. Syl. 6 (VI, 1057). Eecordation of mortgage on vessel gives prefer- ence. Approved in The Gordon Campbell, 131 Fed. 965, state statute in- validating chattel mortgage securing note which does not show it is so 461 Notes on U, S. Reports. 7 Wall. 666-743 secured does not affect mortgage on vessel enrolled under federal statute. Syl. 7 (VI, 1058). Eegulation of enrolled vessels. Approved in The Alta, 148 Fed. 665, vessel not registered in United States, though owned by citizen, is subject to tonnage duty on entry from foreign port. 7 Wall. 666-685, 19 L. 169, THE FLOYD ACCEPTANCES. Syl. 10 (VI, 1063). Acceptance of draft by government officer. Approved in United States v. Kauhoe, 147 Fed. 187, where sureties on postmaster's bond gave inspector note for amount of default in consideration of extension of time, note void as unauthorized. 7 Wall. 694-699, 19 L. 224, AUSTIN v. BOSTON. Syl. 2 (VI, 1066). Taxing power unlimited. Approved in McCray v. United States, 195 U. S. 57, 49 L. 96, 24 Sup. Ct. 769, upholding Comp. St. 1901, p. 2228, as amended in 1902, taxing artificial colored oleomargarine. 7 Wall. 700-743, 19 L. 227, TEXAS v. WHITE. Syl. 16 (VI, 1071). Validity of acts of rebel legislature. Approved in Day v. Smith, 87 Miss. 407, 39 So. 528, taxes levied in sxipport of confederacy by Mississippi cannot be treated as though never paid because illegal, in support of sale of land for taxes; Cul- lins V. Overton, 7 Okl. 4S0, 482, 54 Pac. 705, where Texas authorities organized disputed territory into county government and afterward courts decide territory was not in Texas, judgment of county court of such county is valid. Syl. 7 (VI, 1067). State's reserve powers not delegated to govern- ment. Approved in South Carolina v. United States, 199 U. S. 453, 50 L. 266, 26 Sup. Ct. 110, United States may exact revenue tax from dispensing agents of state which has taken charge of liquor business; Northern Securities Co. v. United States, 193 U. S. 34S, 48 L. 704, 24 Sup. Ct. 436, arguendo. Syl. 8 (VI, 1067). Effect of secession ordinances on states. Cited in Mial v. Ellington, 134 N. C. 156, 46 S. E. 969, 65 L. E. A. 697, arguendo. Syl. 1 (VI, 1066). Authority to sue on behalf of state. Approved in Henry v. State, 87 Miss. 35, 39 So. 803, governor can- not sue in name of state. Distinguished in dissenting opinion in Henry v. State, 87 Miss. 92, 39 So. 883, majority holding governor cannot sue in name of state. (VI, 1066.) Miscellaneous. Cited in Heiuze v. Butte etc. Min. Co., 129 Fed. 279, 63 C. C. A. 388, arguendo. VIII WALLACE. 8 Wall. 114, 19 L. 361, THORINGTON v. SMITH. Syl. 1 (VII, 7). Contracts in aid of insurrection unenforceable. Approved in Cullins v. Overton, 7 Okl. 482, 54 Pac. 705, where Texas authorities organized disputed territory into county government, judg- ment of county court thereof rendered prior to decree that territory was not in Texas is valid. Syl. 7 (VII, 12). Parol to explain ambiguity in writing. Approved in Kilby Mfg. Co. v. Hinchman Fireproofing Co., 132 Fed. 962, 66 C. C. A. 67, admitting parol evidence of prior statement of party as to width of pavement where contract silent. 8 Wall. 15-26, 19 L. 365, THE EAGLE. Syl. 7 (VII, 15). Federal admiralty jurisdiction act. Approved in The Winnebago, 141 Fed. 948, upholding Michigan Comp. Laws, c. 298, giving liens for labor and materials used in con- struction of vessels and providing for their enforcement in state courts. 8 Wall. 64-76, 19 L. 326, MEMPHIS CITY v. DEAN. Syl. 1 (VII, 20). Suit by stockholder for injury to corporation. Approved in Doctor v. Harrington, 196 U. S. 588, 49 L. 610, 25 Sup. Ct. 355, fact that interest of corporation defendant may be same as complaining stockholders does not require corporation to be grouped with complainants for purposes of federal jurisdiction,, where control of corporation is antagonistic to complainants. See 97 Am. St. Eep, 43, note. 8 Wall. 77-85, 19 L. 449, UNITED STATES v. SPEED. Syl. 5 (VII, 21). Damages for breach of contract — Expenditures. Approved in Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 244, following rule; Allen v. Field, 130 Fed. 657, 65 C. C. A. 19, in action for breach of contract to take entire product of distillery for term, expert evidence as to amount of deduction of damages by reason of less time engaged and release from trouble and risk of full execution of contract. 8 Wall. 85-106, 19 L. 332, EX PARTE YERGEB. Syl. 2 (VII, 22). Habeas corpus by supreme court. Approved in Ex parte Moran, 144 Fed. 596, upholding jurisdiction to issue habeas corpus to review power of Oklahoma court to imprison one convicted of capital offense. [462] 463 Notes on U. S. Reports. 8 Wall, 110-153 Syl. 5 (VII, 22). Federal original jurisdiction in habeas corpus. Approved in Ex parte Moran, 144 Fed. 596, upholding jurisdiction to issue habeas corpus to review power of Oklahoma court to imprison one convicted of capital offense. Syl. 6 (VII, 23). Habeas corpus to circuit court's decision. Approved in Ex parte Moran, 144 Fed. 601, upholding jurisdiction to review by habeas corpus power of Oklahoma court to imprison one .'-onvicted of capital offense. 8 Wall. 110-123, 19 L. 342, WARING v. THE MAYOR. Syl. 2 (VII, 25). State tax on original packages. Approved in Gulf etc. Ry. Co. v. State, 97 Tex. 286, 78 S. W. 499, determining when shipment of grain lost its interstate character. Syl. 3 (VII, 26). Sale of goods at sea. Approved in United States v. Hartwell Lumber Co., 142 Fed. 437, determining what tariff law governed where merchandise in American waters prior to taking effect of act of 1897, though not in jjlace customary for unloading until after act took effect. 8 Wall. 123-147, 19 L. 382, WOODRUFF v. PARHAM. Syl. 2 (VII, 26). Tax on goods from other states — Discrimination. Approved in In re Sydow, 4 Ariz. 210, 36 Pac. 215, upholding Laws 1893, Act No. 83, imposing license tax on vendors of merchandise ; Territory v. Denver etc. R. R. Co., 12 N. M. 433, 78 Pac. 76, upholding Laws 1901, p. 96, c. 45, § 3, prohibiting transportation out of territory of hides not inspected and tagged, for which ten cents a hide was charged; People v. Reardon, 184 N. Y. 456, 112 Am. St. Rep. 645, 77 N. E. 978, upholding Laws 1905, pp. 474, 477, imposing tax on trans- fers of corporate shares; Wrought Iron Range Co. v. Campen, 135 N. C. 516, 518, 47 S. E. 661, 662, Pub. Laws 1903, p. 333, c. 247, taxing peddlers of stoves, is void as to sales by sample of goods manufactured in another state and delivered in original package; American Steel etc. Co. v. Speed, 110 Tenn. 546, 100 Am. St. Rep. 814, 75 S. W. 1042, goods sent by foreign corporation to agent in state in original pack- age to have ready for future sales are taxable by state. See notes, 112 Am. St. Rep. 651; 100 Am. St. Rep. 835, 836. 8 Wall. 148-153, 19 L. 387, HENSON v. LOTT. Syl. 3 (VII, 29). Discrimination — State tax on imports. Approved in American Steel etc. Co. v. Speed, 110 Tenn, 546, 100 Am. St. Rep.. 814, 75 S. W. 1042, goods sent by foreign corporation to agent in state in original package to have ready for future sale are taxable by state. 8 Wall. 16S-1S5 Notes on U. S. Eeports. 464 8 Wall. 168-185, 19 L. 357, PAUL v. VrRGINIA. Syl. 1 (VII, 33). Equal protection — Corporations not citizens. Approved in Miller v. Ahrens, 150 Fed. 656, trust created by will for benefit of foreign religious corporation, involving devise of land in West Virginia, is void as against public policy of such state; Kirven v. Virginia-Carolina Chemical Co., 145 Fed. 292, failure of foreign corporation to comply with state statute imposing conditions precedent to right to do business in state does not render contracts void; Attorney General v. Electric Storage Battery Co., 188 Mass. 240, 74 N. E. 467, upholding Act of 1903, requiring certain classes of foreign corporations to annually file certificate of certain facts and pay excise tax assessed on its capital stock; Myatt v. Ponca City Land etc. Co., 14 Okl. 223, 78 Pac. 194, 68 L. E. A. 810, where foreign cor- poration attempts to acquire title to property vested in individual, latter may deny its corporate capacity as defense; Kansas City etc. Ey. Co. V. Stevenson, 135 Fed. 554, arguendo. Syl. 2 (VII, 34). Jurisdiction — Citizenship of corporation. Approved in Madisouville Traction Co. v. St. Bernard Min. Co., 196 U. S. 248, 49 L. 466, 25 Sup. Ct. 251, upholding removal of proceeding for taking laud by eminent domain under state statute. Syl. 3 (VII, 35). What are privileges and immunities guaranteed. . Approved in State v. Weber, 96 Minn. 431, 105 N. W. 493, uphold- ing state constitutional provision limiting right of suffrage of natural- ized citizens to such as are admitted three months prior to election. Syl. 6 (VII, 37). Eecognition of foreign corporation rests on county. Approved in State v. Kansas etc. Gas Co., 71 Kan. 791, 81 Pac. 508, and Standard Oil Co. v. Commonwealth, 104 Va. 685, 52 S. E. 390, both following rule; Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 252, 50 L. 1016, 26 Sup. Ct. 619, upholding state statute that if foreign insurance company removes case to federal court it shall lose license to do business in state; Evansville etc. Traction Co. v. Henderson Bridge Co., 132 Fed. 404, federal court cannot compel Kentucky cor- I)oration to permit Indiana railroad, which has not complied with Kentucky statutes, to connect with its tracks so as to permit railroad to do business in Kentucky; Black v. Vermont Marble Co., 1 Cal. App. 719, 82 Pac. 1061, Stat. 1899, p. Ill, providing that foreign corpora- tions not designating agent on whom process may be served cannot sue in state courts, prohibits such corporation from pleading limita- tions as defense; American Smelting etc. Co. v. People, 34 Colo. 255, 82 Pac. 536, upholding act of 1901, requiring foreign corporation to pay fee on filing certificate of incorporation; Old Wayie etc. Assn. V. McDonougli, 164 Ind. 327, 73 N. E. 705, upholding Pennsylvania statute requiring foreign insnrauee companies doing business there to stipulate that process may be served on it by service on insurance 465 Notes ou U. S. lieports. 8 Wall. 168-185 commissioner or on its designated agent; Prewitt v. Security etc. Ins. Co., 119 Ky. 327, 83 S. W. 612, upholding Ky. St. 1903, § 631, providing for revocation of license of foreign insiirance company removing suits to federal courts; Attorney General v. Booth, 143 Mich. 102, 106 N. W. 873, upholding Laws 1899, p. 409, No. 255, providing for revoca- tion of certificate of foreign corporation violating such act; Pollock V. Qerman Fire Ins. Co., 132 Mich. 227, 93 N. W. 437, upholding Comp. Laws, § 7246, defining term "agent" of foreign insurance companies; State V. Fleming, 70 Neb. 524, 97 N. W. 1063. upholding tax on gross earnings of foreign corporations as privilege of doing business in state; Fisher v. Traders' Mut. Life Ins. Co., 136 N. C. 223, 48 S. E. 669, upliolding Laws 1901, p. 66, c. 5, requiring foreign corporations to appoint agent, on whom process may be served, and providing for service on secretary of corporation commission if no agent designated; Chapman v. Hallwood Cash Kegister Co., 32 Tex. Civ. 78, 73 S. W. 970, foreign corporation suing on contract made within state must allege compliance with statutes relating to foreign corporations; Booth v. Weigand, 28 Utah, 385, 79 Pac. 572, contracts of foreign corporation which has failed to comply with statutes relating to such corporations are unenforceable; National Council v. State Coun- cil, 104 Va. 204, 51 S. E. 169, upholding act of 1900, creating cor- poration and giving it authority to organize subordinate councils of certain beneficial order, though it in effect annuls prior existing right of foreign corporation to transact business of order in state; Presby- terian Ministers' Fund v. Thomas, 126 Wis. 284, 110 Am. St. Eep. 919. 105 N. W. 802, upholding Kev. St. 1898, § 1978, prohibiting foreign insurance companies from doing business in state, except in ac- cordance with provisions of statutes; dissenting opinion in Webster v. Ferguson, 94 Minn. 93, 102 N. W. 215, majority liolding one not agent of insurance company, not insurance agent under Laws 1895, p. 437, § 87, making insurance agent personally liable on insurance made on behalf of company not authorized to do business in state. Syl. 7 (VII, 43). Scope of congressional power over commerce. Approved in Creek-American Sponge Co. v. Richardson Drug Co., 124 Wis. 474, 109 Am. St. Rep. 9G1, 102 N. W. 890, transaction by which goods are sold to resident by foreign corporation and are consigned to local agent of foreign corporation for delivery to purchaser, is interstate commerce; dissenting opinion in Northern Securities Co. V. United States, 193 U. S. 372, 48 L. 714, 24 Sup. Ct. 436, majority holding combination by stockholders in two competing interstate railroads to form holding company violates anti-tr.ust act. Syl. 8 (VII, 44). Issuance of insurance policy not commerce. Approved in Continental Ins. Co. v. Parkes, 142 Ala. 659, 39 So. 207, Code 1896, § 2619, providing that if insurer shall make agreement with insurance companies as to rates of premium, stipulation as to notice shall be void, is valid as to foreign insurance company; dis- 30 8 Wall. 202-242 Notes on U. S. Reports. 465 senting opinion in Northern Securities Co. v. United States, 193 U. S. 377, 48 L. 716, 24 Sup. Ct. 436, majority holding combination by stockholders in two competing interstate railroads to form holding company violates anti-trust act. Distinguished in Belle City etc. Co. v. Frizzell, 11 Idaho, 10, 81 Pac. 60, foreign corporation selling machinery to citizens of this state on orders to be approved by it, taken by agents, is not doing business here within act requiring such corporations to file articles. Syl. 9 (VII, 45). Statute licensing foreign insurance companies. Approved in Metropolitan Life Ins. Co. v. Board of Assessors, 115 La. 706, 39 So. 849, upholding Act No. 170, of 1898, taxing credits representing to equivalent thereof amount of property of foreign corporation utilized by it in business in state. 8 Wall. 202-229, 19 L. 306, SEYMOUR v. FREER. Syl. 1 (VII, 46). Partnership in lands. Distinguished in Dexter v. MacDonald, 196 Mo. 394, 95 S. W. 365, where one purchases land and executes instrument agreeing to give another half of net profits of land when sold, no trust created binding purchaser to hold title for such person for half interest in land. Syl. 8 (VII, 48). Action by cestui for breach of trustee's agree- ment. Approved in Jones v. Patrick, 140 Fed. 409, verbal agrccmout to co-operate in sale of mine and share in profit is not within statute of frauds so as to defeat recovery of share from party who took interest in mine as share of profit from sale. Syl. 10 (VII, 48). Limitations — Express trust — Absence of dis- claimer. Approved in Eddy v. San Francisco, 148 Fed. 280, under California statute providing for issuance of bonds for widening Dupont street, city not liable for failure to levy taxes for payment of bonds to bond- holder who brought suit eight years after maturity of bonds and over twenty years after their issuance; Patterson v. Hewitt, 11 N. M. 42. 66 Pac. 565, 55 L. R. A. 658, applying rule where claimants of con- flicting mining claim agreed to abandon claims and make new ones in name of one of them, all to do pro rata of assessment work, and some of claimants delayed eight years before commencing suit for accounting of proceeds. 8 Wall. 230-242, 19 L. 339, MOREY v. LOCKWOOD. Syl. 2 (VII, 49). Patents — Mel-e change in form. Approved in Edison etc. Elec. Co. v. Crouse etc. Elee. Co., 146 Fed. 547, holding Metzger patent No. 489,682, claims 5 and 7, for electric lamp socket, valid and infringed. 4C7 Notes on U. S. Kepoits.. 8 Wall. 2G9-310 8 Wall. 269-276, 19 L. 453, GIBBONS v. UNITED STATES. Syl. 2 (VII, 50). What is duress. Approved in Burnes v. Burnes, 132 Fed. 493, refusing to set aside agreement for division of stock between heirs and surviving partner, where latter threatened to administer estate as surviving partner unless corporation formed. Syl. 3 (VII, 50). Government not liable for misfeasance. Approved in Christie Street Com. Co. v. United States, 129 Fed. 507, 509, following rule. 8 Wall. 276-291, 19 L. 349, HUDSON CANAL CO. v. PENNSYL- VANIA COAL CO. Syl. 3 (VII, 52). Contracts — Implications from language. Approved in Grand Trunk etc. Ey. Co. v. Chicago etc. K. Co., 141 Fed. 802, construing lease of terminal facilities; Amalgamated Gum Co. v. Casein Co. of America, 146 Fed. 911, construing agree- ment by owner of patented article to sell to defendant as sole customer, provided latter accepted certain quantities, as not binding defendant to take such quantities; Barker v. Pullman Co., 134 Fed. 71, 67 C. C. A. 196, contract providing that insurer agrees, on expiration of insured's policies, to renew same for three years at specified rate, constitutes mere option not binding insured to take insurance; Muscogee Mfg. Co. v. Eagle etc. Mills, 126 Ga. 217, 54 S. E. 1031, construing covenant in city deed to water-front lots; dissenting opinion in Silver Springs etc. E. E. Co. v. Van Ness, 45 Fla. 5S3, 34 So. 891, majority construing provision in deed to right of way to effect that if mines found along way, and grantor desires to mine, railroad must move tracks on notice, as not being reservation nor condition subsequent. 8 Wall. 302-306, 19 L. 392, THE CAEEOLL. Syl. 1 (VII, 54). Collision between steamer and schooner. Approved in The Pocomoke, 150 Fed. 195, holding steamer liable for collision with launch where vessels were on crossing courses; Brigham V. Luckenbaeh, 140 Fed. 332, schooner sailing close-hauled and priv- ileged over tug approaching on crossing course not in fault because she kept course as required by rules. 8 Wall. 307-310, 19 L. 394, THE LUCY. Syl. 2 (VII, 56). Consent does not give jurisdiction. Approved in Clark v. Doerr, 143 Feil. 961, time to sue out writ of error under Comp, St. 190l, p. 547, cannot be extended by agree- ment. 8 Wall. 325-358' Notes on U. S. Eeporta. 468 8 Wall. 325-329, 19 L. 455, THE LADY FRANKLIN. Syl. 1 (VII, 58). Obligation of ship to cargo. Approved in Guffey v. Alaska etc. S. S. Co., 130 Fed. 274, 64 C. C. A. 517, where at time goods delivered on wharf under bill of lad- ing reciting goods to be shipped on vessel lying at certain port, but owner of goods knew vessel was at sea, and goods never delivered to vessel, vessel not liable to maritime lien for breach of contract; Eoy V, Northern Pac. Ey. Co., 42 Wash. 579, 85 Pac. 55, act of carrier's agent in delivering bill of lading for goods which he knew were not delivered to carrier does not bind carrier even as to in- nocent transferee. Syl. 2 (VII, 59). Bill of lading is contract and receipt. See 105 Am. St. Eep. 348, 350, note. 8 Wall. 330-333, 19 L. 396, UNITED STATES v. GILMOEE. Syl. 3 (VII, 59). Contemporaneous statutory construction. Approved in Pitts v. Logan County, 3 Okl. 740, 41 Pac. 591, state act attempting to regulate accounting by clerks of district courts of ter- ritory is void. 8 Wall. 333-337, 19 L. 379, WOOD-PAPEE CO. v. HEFT. Syl. 1 (VII, GO). Adverse interests of parties on appeal. Approved in Eidge v. Manker, 132 Fed. GOl, 67 C, C. A. 596, arguendo. 8 Wall. 342 334, 19 L. 457, EXPEESS CO. v. KOUNTZE BEOTHEES. Syl. 2 (VII, 62). Averments of diverse citizenship. Approved in Sun Printing etc. Assn. v. Edwards, 194 U. S. 383, 48 L. 1030, 24 Sup. Ct. 696, averment that plaintiff is resident of Delaware is sufficient averment of citizenship therein for purpose of federal jurisdiction, where testimony shows legal domicile therein. Syl. 8 (VII, 63). Necessity for request to charge. Approved in Steel Eail Sup. Co. v. Baltimore etc. Ey. Co., 130 Fed. 434, 64 C. C. A. 635, following rule. Syl. 9 (VII, 64). Carrier selecting unsafe route liable. Approved in Green Wheeler Shoe Co. v. Chicago etc. Ey. Co., 130 Iowa, 130, 106 N. W. 500, carrier negligently delaying shipment so that it is destroyed by flood, which would not have destroyed it ex- cept for delay, is liable. 8 Wall. 354-358, 19 L. 418, YOUNG v. MAETIN. Syl. 2 (VII, 65). Exceptions must present distinct rulings. Approved in Metropolitan E. E. Co. v. Macfarland, 195 U. S. 330, 49 L. 223, 25 Sup. Ct. 28, error in refusal of instructions not considered 469 Notes oa U. S. Reports. 8 Wall. 358-393 in absence of bill of exceptions, though transcript contains Tvhat purports to be instructions asked and refused, marked filed by clerk. Syl. 5 (VII, 65). Rcplieation to answer waives demurrer. Approved in Berry v. Barton, 12 Okl. 224, 71 Pac. 1075, 66 L. E. A. 513, leave to amend waives error in sustaining demurrer to an- swer; Kingman & Co. v. Pixley, 7 Okl. 352, 54 Pac. 495, filing of amended petition waives error in sustaining demurrer. 8 Wall. 358-362, 19 L. 303, GILBERT v. UNITED STATES. Syl. 2 (VII, 66). Contract with government official. Cited in North Chicago St. E. Co. v. Chicago Union Tr. Co., 150 Fed. 628, arguendo. 8 Wall. 370-376, 19 L. 380, MOTTINGLY v. NYE. Syl. 3 (VII, 67). Conclusiveness of judgment. Approved in Salemonson v. Thompson, 13 N. D. 193, 101 N. W. 323, applying rule in action to try title by judgment creditor against alleged fraudulent grantee of debtor. Syl. 5 (VII, 68). Grantor cannot impair rights under trust deed. Approved in Lynch v. Burt, 132 Fed. 428, 67 C. C. A. 305, judg- ment against fraudulent grantor, rendered after conveyance, not conclusive on grantee as to existence or amount of debt at time of transfer. 8 Wall. 376-377, 19 L. 422, AVENDANO v. GAY. Syl. 1 (VII, 68). Own error not assignable. Approved in Francisco v. Chicago etc. R. Co., 149 Fed. 355. writ of error at suit of plaintiff to review nonsuit rendered at his request. 8 Wall. 377-393, 19 L. 463, THE BALTIMORE. Syl. 6 (VII, 69). Damages for injury through collision. Approved in The Loch Trool, 150 Fed. 432, denying right to recover for depreciation in value of vessel where she was repaired and ren- dered as strong as before and received original classification; The Rickmers, 142 Fed. 309, denying right to recover for permanent in- jury in addition to expense of repairs where all known injuries were repaired. Syl. 7 (VII, 70). Collision— Damages for total loss. Approved in The Mobila, 147 Fed. 883, following rule. Syl. 9 (VII, 70). Collision — Damages avoidable by care. Approved in The Ashbury Park, 147 Fed. 195, steamer causing dangerous swell not liable for sinking of barge some time afterward, caused by failure to keep her pumped out; The Reno, 134 Fed. 556, 67 C. C. A. 479, where owner had vessel raised and repaired without 8 Wall. 393-420 Notes on U. S. Eeports, 470 ascertaining whether she was worth putting in as good condition as before collision, amount so expended is not measure of damages. 8 Wall. 393-397, 19 L. 467, BRADLEY v. EHINES. Syl. 2 (VII, 71). Federal suit by assignee. Approved in Kolze v. Hoadley, 200 U. S. 83, 50 L. 381, 26 Sup. Ct. 220, applying rule to suit to foreclose trust deed; Utah-Nevada Co. V. DeLamar, 133 Fed. 121, 66 C. C. A. 179, applying rule to suit by assignee or oral contract to recover money due thereon. 8 Wall. 397-420, 19 L. 437, TEAVELERS' INS. CO. v. MOSLEY. Syl. 4 (VII, 73). Evidence of declaration as to physical condition. Approved in Holloway v. Kansas City, 184 Mo. 39, 82 S. W. 94, physician testifying as expert cannot give opinion as to cause of in- jury based on history of case as he learned it from plaintiff's state- ments while treating her. Syl. 5 (VII, 74). Res gestae — Declarations as to bodily injury. Approved in Sprinkle v. United States, 141 Fed. 816, 817, on trial of defendants jointly indicted for defrauding government of reve- nue taxes, statements by defendants not on trial are admissible when part of res gestae; The San Rafael, 141 Fed. 279, admitting oral declarations of one alleged to have been drowned by sinking of \tssel, as to his intention to become passenger thereon; Guild v. Pringle, 130 Fed. 422, 423, 64 C. C. A. 621, declaration by man fatally injured by falling into excavation that there was no light there is inadmissible; Union etc. Surety Co. v. Mondy, 18 Colo. App. 397, 71 Pac. 677, where there was evidence of insured's injured condition other than his declarations, declarations as to cause of injury made immediately after occurrence are admissible; Rothrock V. Cedar Rapids, 128 Iowa, 254, 103 N. W. 476, admitting declara- tions of injured person as to manner in which and place at which injuries sustained made on arrival at home half hour after injury; Pledger v. Chicago etc. Ry. Co., 69 Neb. 461, 9.5 N. W. 1058, up- holding exclusion of declaration in answer to question of one in- jured that he was on train and that brakeman pushed him off; Murray v. Boston etc. R. R., 72 N. H. 37, 101 Am. St. Rep. 660, 54 Atl. 292, 61 L. R. A. 495, admitting declarations of one within two minutes after he was run over and while lying between planks with legs cut off that it happened from his falling over planks; Merrell v. Dudley, 139 N. C. 59, 51 S. E. 778, in action for malicious pros- ecution evidence of declaration by defendant to magistrate on ap- plying for warrant for plaintiff's arrest for stealing shovel that when shovel found in plaintiff's possession latter said, "To he.U with the shovel"; Puis v. Grand Lodge A. O. U. W., 13 N. D. 572, 102 N. W. 169, admitting spontaneous declarations of deceased to 471 Notes on U. S. Keports. 8 Wall. 430-507 attendants as to cause of illness, due to poison, from which he was then suffering. Distinguished in Eoss-Lewin v. Germania L. Ins. Co., 20 Colo. App. 271, 78 Pac. 308, in action on life policy by assignee, declarations of assured after assignment, tending to show intention to commit sui- cide, are inadmissible when not part of res gestae; Kegnicr v. Ter- ritory, 15 Okl. 6G1, 82 Pac. 511, where person shot from ambush asked brother if he knew who did it, and brother answered one of them was A, to which deceased replied, "Yes, and other was B, " conversation inadmissible. 8 Wall. 430-439, 19 L. 495, HOME OF THE FRIENDLESS v. ROUSE. Syl. 1 (VII, 78). Statute incorporating society — Tax exemption. Approved in Powers v. Detroit etc. Ey. Co., 201 U. S. 559, 50 L. S()G. 2G Sup. Ct. 556, upholding contract between state and rail- road exempting railroad from taxation other than prescribed in cer- tain statute; Hamilton Nat. Bank v. American Loan etc. Co., 6G Neb. 77, 92 N. W. 192, arguendo. Syl. 3 (VII, 79). Legislative charter exempting from taxation. Approved in Powers v. Detroit etc. Ry. Co., 201 U. S. 558, 50 L. 865, 26 Sup. Ct. 556, upholding contract between state and railroad exempting railroad from taxation other than prescribed in certain statute. Syl. 6 (VII, 79). Consideration — Power to exempt from taxation. Cited in Heerwagen v. Crosstown St. Ry. Co., 179 N. Y. 104, 71 N. E. 730, arguendo. Distinguished in Rochester v. Rochester Ry. Co.. 182 N. Y. IIG, 74 N. E. 958, 70 L. R. A. 773, immunity from contribution to expense of new pavements conferred by Laws 1S69, p. 54, c. 34, on street railway, was mere gratuity revocable at pleasure. 8 Wall. 4S9-491, 19 L. 472, PARISH v. UNITED STATES. (VII, 87.) Miscellaneous. Cited in Cbisholm etc. Mfg. Co. v. U. S. Canopy Co., Ill Tenn. 211, 77 S. W. 1064, on question of profits as element of damages. 8 Wall. 498-507, 19 L. 476. KENNEDY v. GIBSON. Syl. 2 (VII, 87). National bank receiver is instrument of comp- troller. Approved in Fish v. Olin, 76 Vt. 124, 125, 56 Atl. 533, 534, receiver of national bank may sue at law in own name in state courts. Syl. 3 (VII, 88). Enforcement of bank stoekhohler 's liability. Approved in Christopher v. Norvell, 201 U. S. 222, 50 L. 735, 26 Sup. Ct. 502, coverture of legatee of national bank shares when she 8 "Wall. 513-533 Notes on U. S. Reports. 472 received certificate of stock is no defense to personal judgment for amount of assessment, irrespective of local law; Eankin v. Barton, 199 U. S. 232, 50 L. 166, 26 Sup. Ct. 29, reversing 69 Kan. 631, 634. 77 Pac. 531, 532, and holding state statute of limitations does not begin to run against right to enforce national bank stockholder's liability until assessment by comptroller; McCIaine v. Rankin, 197 U. S. 159, 49 L. 705, 25 Sup. Ct. 410, personal liability of stockhold- ers in national bank for debts of bank not contract liability under statutes of limitation; Bennett v. Thorne, 36 Wash. 270, 78 Pac. 941, 68 L. R. A. 113, under Const., art. 12, § 11, action against stock- holders for additional liability accrues in bank's insolvency and is barred in six years. Syl. 7 (VII, 90). National bank creditors' remedy is through comptroller. Distinguished in Boyd v. Schneider, 131 Fed. 227, 65 C. C. A. 209, 70 L. R. A. 264, depositors in national bank may sue directors for negligently permitting its officers to loan bank's assets in violation of banking act. Syl. 10 (VII, 92). Statutes permitting suits against national banks. Approved in United States v. Eaisch, 144 Fed. 489, Rev. St., § 5424, prohibits felonious making of certificate of naturalization by one other applicant or his witnesses; Rankin v. Herod, 130 Fed. 390, under Comp. St. 1901, p. 514, circuit court has jurisdiction over equity suit by national bank receiver where amount involved ex- ceeded $500. 8 Wall. 513-533, 19 L. 426, CARPENTER v. DEXTER. Sj'l. 3 (VII, 94). Certificates of acknowledgment not technically voided. Approved in Trerise v. Bottego, 32 Mont. 250, 108 Am. St. Rep. 521, 79 Pac. 1059, certificate of acknowledgment of mortgage by hus- band and wife is sufficient to change notice though word "he" in- stead of "they" is used. See 108 Am. St. Rep. 530, 532, notes. Syl. 4 (VII, 95). Aider of defective certificate of acknowledg- ment. See 108 Am. St. Rep. 557, note. Syl. 5 (VII, 96). Acknoviiedgment — Statement of venue. See 108 Am. St. Rep. 544, note. Syl. 8 (VII, 96). Proper acknowledgment requisite to recorda- tion. Approved in National etc. Co. v. New Columbus etc. Co., 129 Fed. 116, 122, 63 C. C. A. 616, applying rule to registration of assignment of patent. 473 Notes on U. S. Reports. 8 Wall. 533-574 8 Wall. 533-556, 19 L. 482, VEAZIE BANK v. FENNO. Syl. 4 (VII, 97). State agencies not taxable by government. Distinguished in South Carolina v. United States, 199 U. S. 459, 50 L. 269, 26 Sup. Ct. 110, holding government may exact revenue license from dispensing agent of state which has taken charge of liquor business. Syl. 6 (VII, 98). Tax not void because oppressive. Approved in McCray v. United States, 195 U. S. 57, 49 L. 9G. 24 Sup. Ct. 765, upholding Comp. St. 1901, p. 2228, as amended in 1902, taxing artificially colored oleomargarine; Kersey v. Terre Haute, 151 Ind. 474, 68 N. E. 1029, upholding ordinance taxing vehicles though omitting automobiles and street-ears; Gay v. Thomas, 5 Okl. 10, 46 Pac. 581, upholding act of 1895, taxing cattle in unorganized coun- try in county to which country is attached for judicial purposes; Kettle V. Dallas, 35 Tex. Civ. 638, 80 S. W. 878, upholding act for creating improvement districts; dissenting opinion in Allen v. City of Davenport, 132 Fed. 227, 65 C. C. A. 641, 70 L. E. A. 264, major- ity holding where after letting of street-paving contract by city, abutting owners sued to enjoin work and assessment, and after work finished and city paid for work, court decided contract void, city cannot enforce lien on quantum meruit under curative statute. S Wall. 557-574, 19 L. 501, WILLAED v. TAYLOE. Syl. 1 (VII, 99). Covenant in lease giving option to purchase. Approved in King v. Eaab, 123 Iowa, 634, 99 X. W. 306, following rule; Slaughter v. Mallet Laud etc. Co., 141 Fed. 291, upholding validity of option in lease giving lessee preferential right to pur- chase; Watkins v. Eobcrtson, 105 Va. 280, 5 L. E. A. (X. S.) 1194, 54 S. E. 37, enforcing specific performance of option for sale of stock at certain price if accepted within certain time in considera- tion of $1. Syl. 2 (VII, 99). Specific performance — Option to purchase in lease. Approved in Kentucky Distilleries etc. Co. v. Blanton, 149 Fed. 40, following rule; Woodward v. Davidson, 150 Fed. 843, granting specific performance of contract for sale of realty signed by vendor but not by purchaser. Syl. 4 (VII, 100). Specific performance — Discretion. Approved in Sharp v. West, 150 Fed. 461, where vendor repudiated alleged contract of sale before tender made, tender not condition precedent to suit for specific performance; Jones v. Byrne, 149 Feil. 461, denying specific performance of contract for purchase of land where there was breach of trust by purchaser; Kentucky Distilleries etc. Co. V. Blanton, 149 Fed. 4(1, applying rule where delay in clearing title due to fault of purchaser in not examining abstract; 8 Wall. 575-639 Notes on U. S. Reports. 474 Meehan v. Nelson, 137 Fed. 737, 70 C. C. A. 165, granting specific performance of contract to convey interest in mining claim in con- sideration of complainant sinking three holes thereon to bedrock; Kane v. Luckman, 131 Fed. 621, denying specific performance of contract to purchase cows in exchange for land; Marks v. Gates, 2 Alaska, 526, 527, refusing to specifically enforce grubstake con- tract; Norris v. Clark, 72 N. H. 443, 57 Atl. 334, upholding refusal of specific performance of contract to convey interest in estate where consideration grossly inadequate; McClure v. Leaycraft, 183 N. Y. 42, 75 N. E. 963, denying injunction to enforce covenant against erection of apartment houses on land where greater part of limit of covenant had expired and such houses had been erected in im- mediate vicinity. Syl. 5 (VII, 101). Conditional grant of specific performance. Approved in King v. Eaab, 123 Iowa, 635, 636, 99 N. W. 307, where five year lease contained option to purchase during term for specified price, and after lease city ordered street paved, specific performance granted on condition that lessee pay cost of paving. Syl. 10 (VII, 102). Specific performance — Proper parties. Approved in Cclla v. Brown, 144 Fed. 755, 756, applying rule with reference to right of removal of cause. Syl. 14 (VII, 103). Specific performance — Tender of depreciated notes. Approved in San Juan v. St. John's Gas. Co., 195 U. S. 520, 49 L. 304, 25 Sup. Ct. 108, construing contract for street lighting in Porto Eico with reference to medium of payment. 8 Wall. 575-587, 19 L. 490, BUTZ v. CITY OF MUSCATINE. Svl. 7 (VII, 105). Bondholder's remedies not taken away by re- peal. Approved in City of Ft. Madison v. Ft. Madison etc. Co., 134 Fed. 216, 67 C. C. A. 142, Iowa Code 1897, § 1305, providing for reduc- tion of assessed value of property, is void in so far as it affects ability of city to meet water rent contract; Columbia Ave. Sav. Fund etc. Co. v. Dawson, 130 Fed. 175, grant by city to water com- pany of right to lay pipes in streets and to supply city with wator for term, cannot be impaired by construction of competing city works. 8 Wall. 603-639. 19 L. 513, HEPBURN v. GRISWOLD. Syl. 7 (VII, 108). Statutes upheld unless invalidity clear. Approved in United States v. Scott, 148 Fed. 433, holding void Comp. St. 1901, p. 3210, making it criminal for interstate carriers to compel employees to agree not to join labor unions. 475 Notes on U. S. Eeports. 9 Wall. 1-22 8 Wall. 650-672, 19 L. 320, MAGUIEE v. TYLER. Syl. 7 (VII, 113). Incomplete land titles not for courts — Sur- vey. Approved in Territory v. Delinquent Taxpayers, 12 N. M. 175, 76 Pac. 318, imperfect Mexican grant not taxable before confirmation of survey by court of private land claims; United States v. Mon- tana Lumber etc. Co., 196 U. S. 578, 49 L. 605, 25 Sup. Ct. 367, arguendo. IX WALLACE. 9 Wall. 1-12, 19 L. 590, NEALE v. NEALES. Syl. 1 (VII, 115). Amendment to fit evidence. Approved in Bulte v. Igleheart Bros., 137 Fed. 502, 70 C. C. A. 76, upholding refusal of amendment of bill for infringement of pat- ent; Kinney v. Craig, 103 Va. 1G7. 48 S. E. 867, where record in suit to recover debt secured by vendor's lien showed right of plaintiff to recover from any property owned by defendant at time of debt, and that he had given property in trust to children, bill amendable by allegation that deed made to defraud plaintiff; Katliff v. Som- mers, 55 W. Va. 37, 46 S. E. 715, arguendo. Syl. 3 (VII, IIG). Parol gift of land — Possession and improve- ments. Approved in Ilalsell v. Eenfrow, 14 Old. 692, 78 Pac. 123, holding sending of surveyors on to land not taking of possession sufficient to take parol agreement for sale of lands out of statute. 9 Wall. 13-22. 19 L. 541, REESE v. UNITED STATES. Syl. 2 (VII, 118). Change in contract releasing surety. Approved in Zeigler v. Hallahan, 131 Fed. 208, 66 C. C. A. 1, where lease bound tenant to keep and pay rent for premises, and at end of term deliver them in good condition, modification by pro- vision that in case of destruction rendering premises untenantable lease should be void releases surety; Orleans etc. Ry. Co. v. Inter- national Const. Co., 113 La. 413, 37 So. 11, applying rule where stipu- lation in building contract that bonds be deposited with trust com- pany to be disposed of to raise money changed to another scheme; Stern v. Sawyer, 78 Vt. 12, 13, 112 Am. St. Rep. 894, 61 Atl. 38, sale of portion of leased premises with tenant's consent releases tenant's surety. 9 Wall. 23-56 Notes on U. S. Kcports. 476 9 Wall. 23-32, 19 L. 545, McGOON v. SCALES. Syl. 2 (VII, 120). State law governs transfers. Approved in Southern Pac. Co. v. Western Pac. Ey. Co., 144 Fed. 179, determining title to Oakland waterfront; Hubbard v. Coin, 137 Fed. 826, 70 C. C. A. 320, construing deed to daughter and children, with provision that she do not sell or encumber land, but retain it for use of herself and children forever, as not within Shelley's Case. Syl. 4 (VII, 120). Collateral attack on attachment proceedings. Approved in Harper v. Eankin, 141 Fed. 630, judgment in favor of national bank receiver, based on findings that defendant, while bank official, embezzled bank funds, is conclusive of character of indebt- edness, on issue as to whether debt is released by discharge in bank- ruptcy; Logan V. Central Iron & Coal Co., 139 Ala. 555, 36 So. 731, where judgment in favor of administrator for wrongful death of in- testate is satisfied, it is not collaterally attackable for fraud in action on same cause by administrator de bonis non. 9 Wall. 35-38, 19 L. 573, GUT v. STATE. Syl. 2 (VII, 122). Ex post facto law — Changing venue. Approved in Barry v. Truax, 13 N. D. 144, 99 N. W. 773, upholding Eev. Codes 1899, § 8122, providing for change of place of trial on mo- tion of prosecution where fair trial cannot be had in original county; State V. Eooney, 12 N. D. 153, 95 N. W. 516, upholding Laws 1903, c. 99, substituting penitentiary for county jail as place of confine- ment pending execution, as applied to one convicted prior to passage of law. 9 Wall. 41-45, 19 L. 593, UNITED STATES v. DEWITT. Syl. 1 (VII, 124). Federal regulation of state's internal police. Approved in In re Ileff, 197 U. S. 50G, 49 L. 856, 25 Sup. Ct. 506, sale of liquor within state to Indian, to whom lands allotted under 24 Stat. 388, c. 119, not punishable under 21 Stat. 508, c. 109; Ex parte Dick, 141 Fed. 7, where government conveyed to individuals lands ceded to it by Indians, and municipality formed thereon, lands not subject to Eev. St., § 2139, prohibiting introduction of liquor into Indian country; Sanders v. Commonwealth, 117 Ky. 5, 111 Am. St. Eep. 221, 77 S. W. 359, 1 L. E. A. (N. S.) 932, upholding Ky. St. 1899, § 1274, forbidding sale of milk from cows fed on "still slop.'' 9 Wall. 50-56, 19 L. 594, CHICAGO v. SHELDON. Syl. 1 (VII, 126). Franchise requiring street repairs — Assessments. Distinguished in New York v. State Board of Tax Commrs., 199 U. S. 43, 105 Am. St. Eep. 703, 50 L. 77, 25 Sup. Ct. 715, upholding N. Y. Laws 1899, c. 712, imposing special franchise tax, as applied to street railway given franchise in consideration of payment of per- centage of earnings; American Bonding Co. v. City of Ottumwa, 137 477 Notes on U. S. Keports. 9 Wall. 76-124 Fed. 582, 70 C. C. A. 270, where street paving contract required con- tractor to keep same in repair, and experts decided that on account of bad material and workmanship entire resurfacing necessary, re- surfacing was repairs. Syl. 2 (VII, 127). Practical interpretation of contracts by parties. Approved in Cleveland-Cliffs Iron Co. v. East Itasca Min. Co., 146 Fed. 239, construing contract relating to mining leases; Columbus etc. Ey. Co. V. Pennsylvania Co., 143 Fed. 762, construing agreement be- tween railroads in contracts relating to joint use of terminal prop- erty; Uinta Tunnel etc. Co. v. Ajax etc. Min. Co., 141 Fed. 568, con- struing stipulation that lode claims of plaintiff were "located in com- pliance with law"; Northrup v. Eichmond, 105 Va. 339, 53 S. E. 963, construing ordinance requiring street-car companies to sell school chil- dren's tickets at reduced rates as requiring sale of such tickets to students of business college. Syl. 4 (VII, 129). Street railway franchise is contract. Approved in Blair v. Chicago, 201 U. S. 475, 50 L. 832, 26 Sup. Ct. 427, construing 111. Act, Feb. 6, 1805, with reference to extension of corporate life of street railway created by acts of 1859 and 18G1. 9 Wall. 76-83, 19 L. 597, SMITH v. MOESE. Syl. 2 (VII, 134). Arbitration decision conclusive. Approved in Eoberts etc. Shoe Co. v. W^estinghouse etc. Mfg. Co., 143 Fed. 224, holding where contract provided for reference of ques- tions to engineer, latter 's decision is conclusive. 9 Wall. 83-89, 19 L. 574, UNITED STATES v. KEEIILEE. Syl. 4 (VII, 136). Official bonds— Eobbery of funds no defense. Approved in Van Trees v. Territory, 7 Okl. 363, 54 Pac. 498, fact that county treasurer deposited funds in solvent bank, which after- ward failed, is no defense to action on bond. Distinguished in Sweeney v. Commonwealth, 118 Ky. 922, 82 S. W. 642, state auditor not liable on bond for moneys paid on vouchers for militia expenses signed by persons wrongfully acting as governor and adjutant general. 9 Wall. 108-124, 19 L. 604, CHEEVEE v. WILSON. Syl. 7 (VII, 145). Federal courts judicially notice state laws. See 113 Am. St. Eep. 873, note. Syl. 8 (VII, 146). Conclusiveness of divorce decree — Finding of residence. Approved in Haddock v. Haddock, 201 U. S. 570, 626, 50 L. 870, 893, 26 Sup. Ct. 525, mere domicile of one spouse does not give state court jurisdiction to render divorce against nonresident nonappearing defendant served by publication; Sheehun v. Farvvell, 135 Mich. 207, 9 Wall. 125-129 Notes on U. S. Eeports. 478 97 N. "W. 732, applying rule in action on foreign judgment. See 109 Am. St. Eep. 259, 268, note. Syl. 9 (VII, 147). "Wife may acquire separate domicile. Approved in Haddock v. Haddock, 201 U. S. 571, 583, 893, 50 L. 870, 875, 895, 26 Sup. Ct. 525, mere domicile of one spouse does not give state court jurisdiction to render divorce against nonresident non- appearing defendant served by publication; Gordon v. Yost, 140 Fed. 81, wife deserted by husband may sue for alienation of affections in federal court of state other than that of husband's residence or cit- izenship; Clark V. Clark, 191 Mass. 131, 77 N. E. 703, wife separated from husband because of his adultery may sue for divorce in county other than that of his residence if she resides in county of suit. See 109 Am. St. Eep. 259, 267, note. Syl. 10 (VII, 147). Jurisdiction — Divorce — Wife's separate dom- icile. Approved in Blair v. Chicago, 201 U. S. 449, 50 L. 821, 26 Sup. Ct. 427, motive with which creditor invokes federal jurisdiction is im- material; Toledo Traction Co. v. Cameron, 137 Fed. 56, 69 C. C. A. 28, where father and mother of infant plaintiff are divorced, and cus- tody awarded to mother, his citizenship and domicile are determined by hers, for purpose of federal jurisdiction; dissenting opinion in Haddock v. Haddock, 201 U. S. 611, 50 L. 887, 26 Sup. Ct. 525, ma- jority holding mere domicile of one spouse docs not give state court jurisdiction to render divorce against nonresident nonappearing de- fendant served by publication. 9 Wall. 125-129, 19 L. 608, NOEEIS v. JACKSON. Syl. 1 (VII, 148). Trial to court— Special findings. Approved in West v. Houston Oil Co., 136 Fed. 345, 69 C. C. A. 169, applying rule in trespass to try title; Anglo-American etc. Co. V. Lombard, 132 Fed. 734, 68 C. C. A. 89, applying rule in action to enforce stoc]fholder's statutory double liability. Syl. 2 (VII, 149). Conclusiveness of findings by court. Approved in Streeter v. Sanitary Dist. of Chicago, 133 Fed. 126, 66 C. C. A. 190; Paul v. Delaware etc. E. Co., 130 Fed. 953, and York v. Washburn, 129 Fed. 566, 64 C. C. A. 132, all following rule. Syl. 5 (VII, 151). Bill of exceptions on trial to court. Approved in Paul v. Delaware etc. E. Co., 130 Fed. 954, 955, fol- lowing rule; Fitzgerald v. Bassford, 142 Fed. 134, where action at law tried by court, and there was no special finding, assignment of error that court "erred in rendering judgnient in favor of plaintiff," is insufficient; West v. Houston Oil Co., 136 Fed. 350. 69 C. C. A. 169, applying rule in trespass to try title where vital issue was genuine- ness of deed. 479 Notes on U. S. Keports. 9 Wall. 129-156 Syl. 6 (VII, 152). Eeview in absence of special findings by court. Distiiiguislied in Streeter v. Sanitary Dist. of Ciiicago, 133 Fed. 129, 130, 66 C. C. A. 190, in cause tried b}^ court where there is no special findings, ruling on request for holding that plaintiffs were entitled to recover amount claimed is not reviewable. Syl. 7 (VIT, 153). Bill of exceptions to review law rulings. Approved in Paul v. Delaware etc. E. Co., 130 Fed. 956, following rule. 9 Wall. 129-145, 19 L. 651, THE GRAPESHOT. Syl. 2 (VII, 154). Master's bond for supplies in foreign port. Approved in The Wyandotte, 145 Fed. 324, 325, affirming 136 Fed. 473, where master of vessel in foreign port without funds was ready to sail, but could not hear from owners, draft to raise money for sup- plies creates maritime lien; The Worthington, 133 Fed. 725, 70 L. R. A. 353, 66 C. C. A. 555, one advancing money in foreign port to ship owner to be us^d to load vessel is entitled to maritime lien where it was loaned on credit of vessel; The Alcalde, 132 Fed. 578, denying maritime lien to bank advancing money to master at port of discharge to pay crew where receiver had been appointed for vessel; The Sur- prise, 1-9 Fed. 875, 64 C. C. A. 309, upholding lien for supplies and wharfage furnished vessel in foreign port on order of master, though ship navigated by charterer. Syl. 5 (VII, 157). Maritime lien — Necessity for repairs. Approved in The Wyandotte, 145 Fed. 326, affirming 136 Fed. 473, where, on libel on draft given for supplies, defendants claim supplies might have been obtained on personal credit of owners, burden was on owners to show they had credit in port where bond executed. Syl. 6 (VII, 157). Proof of necessity for ship's supplies. Approved in The Surprise, 129 Fed. 876, 883, 64 C. C. A. 309, uphold- ing lien for supplies and wharfage furnished vessel in foreign port on order of master, though ship navigated by charterer. 9 Wall. 145, 146, 19 L. 771, LATHAM'S AND DEMIXG'S APPEAL. Syl. 1 (VII, 158). Appellee cannot object to dismissal of appeal. Approved in Darlington-Miller etc. Co. v. Hall, 4 Okl. 671, 46 Pac. 494, where appellant, on appeal from judgment of probate court, has appeal dismissed in district court, latter court cannot, on motion of appellee, set aside order of dismissal. 9 Wall. 146-156, 19 L. 610, THE .TOHXSON". Syl. 2 (VII, 158). Navigators must observe navigation rules. Approved in The Sitka, 132 Fed. 805, holding steamer leaving ;in- choriige liable for collision for failure to keep eflicient lookout and for failure to give signal required by rules on leaving berth. 9 Wall. 161-197 Notes on U. S. Eeporta. 480 9 Wall. 161-175, 19 L. 629, THE HAEEIMAN. Syl. 3 (VII, 160). Contracts — Contingencies excusing performance. Approved in Eeid v. Alaska Packing Assn., 43 Or. 436, 73 Pac. 340, contract to sell salmon packed in Alaska, fish to be "exactly like Puget Sound fancy sockeye, ' ' not void, though fish of that sort not found in Alaska; Pearlstine v. Westchester Fire Ins. Co., 70 S. C. 80, 49 S. E. 5, proofs of loss made and sworn to by agent, where facts are within his own knowledge, and principal is absent, do not violate stipulation in policy that insured shall make proof; Wheeling etc. Foundry Co. v. Wheeling etc. Iron Co., 58 W. Va, 67, 51 S. E. 131, under contract to make and deliver machinery at certain time or forfeit $50 per day, forfeiture not excused because party acted in good faith and with due diligence. 9 Wall. 187-197, 19 L. 668, FEISBEE v. WHITNEY. Syl. 3 (VII, 162). Eights of pre-emptioner neither paying nor re- ceiving certificate. Approved in Oregon Short Line E. Co. v. Quigley, 10 Idaho, 781, 80 Pac. 403, 404, applying rule to grant of right of way to Utah etc. E. li. Co.; Graham v. Great Falls etc. Co., 30 Mont. 400, 402, 76 Pac. SIO, 811, preferential right given successful contestant under Comp. St. 1901, p. 1392, was not vested right enforceable against govern- ment; McDonald V. Union Pac. E. Co., 70 Neb. 350, 97 N. W. 441, state court cannot compel conveyance of lands, subject to entry under homestead laws, to person who has been denied privilege of making entry by government officials; Wallace v. Adams, 143 Fed. 724, ar- guendo. Syl. 5 (VII, 164). Title remains in government till payment. Approved in Eussian-American etc. Co. v. United States, 199 U. S. 57S,, 50 L. 316, 26 Sup. Ct. 157, value of improvements made on pub- lic lands in Alaska by mere trespasser are not recoverable from gov- ernment in its selection of lands for fish culture station under 26 Stat. 1100, § 14; Tegarden v. Le Marchel, 129 Fed. 490, claim for improve- ments made before issuance of patent are not recoverable in eject- ment; Nickelson v. Cameron Lumber Co., 39 Wash. 575, 81 Pac. 1061, one settling on unsurveyed lands cannot recover for cutting and re- moving of timber by another; State v. Eoss, 39 Wash. 409, 81 Pac. 867, mere rejected applicant for lease of public land cannot institute mandamus to compel land commissioner to advertise lease of such land; dissenting opinion in Bernardy v. Colonial etc. Mtg. Co., 17 S. D. 653, 106 Am. St. Eep. 800, 98 N. W. 171, majority holding where en- tryman before patent conveyed by deed which was recorded, and after patent he mortgaged land, mortgagee acquired no interest as against grantee. Distinguished in United States v. Oregon etc. E. Co., 133 Fed. 955, lauds pre-empted but not paid for are exempted from railroad land 481 Notes on U. S. lieports. 9 Wall. 203-274 grant of July 25, 18G6; Reservation Bank v. Hoist, 17 S. D. 246, 95 N. W. 933, 70 L. R. A. 799, where assignee of invalid lease from Indian allottee applied for homestead, which application was returned without action on same, and another took up residence on land and received receiver's receipt, former cannot recover crops planted by him and harvested by latter. 9 Wall. 203-237, 19 L. G38, THE STAR OF HOPE. Syl. 3 (Vir, ]G9). Collision — Sacrifice to avoid impending peril. Approved in Minnesota S. S. Co. v. Lehigh Valley etc. Co., 129 Fed. •'>2, G3 C. C. A. 672, determining fault for collision between one steamer having tow and two others coming down channel abreast; Oceanic Steam Nav. Co, v. Aitken, 196 U. S. 596, 49 L. 613, 25 Sup. Ct. 317, arguendo. 9 Wall. 254-274, 19 L. 554, SWAIN v. SEAMENS. Syl. 5 (VII, 173). Varying writing by parol — Statute of frauds. Approved in American Fine Art Co. v. Simon, 140 Fed. 535, 537, written contract requiring plaintiff to prepare designs which if ap- proved by defendant were to constitute order for work, is rescinded by oral agreement, after rejection of designs, that defendant should sign designs so that plaintiff could copyright them; McConathy v. Lanham, 116 Ky. 740, 76 S. W. 536, where written contract for sale of mineral rights provided for forfeiture if payment not made before certain time, parol agreement extending time is void; Cughan v. Lar- son, 13 N. D. 380, 100 N. W. 1090, refusing to specifically enforce parol modification of written contract for sale of land, though modifi- cation pertained only to performance of contract; Halsell v. Renfrow, 14 Okl. 689, 78 Pac. 122, applying rule where contract to sell land was modified by parol agreement to deduct certain sum for exclusion of certain lot from deed; Neppaeh v. Oregon etc. R. R. Co., 46 Or. 395, 80 Pac. 486, where vendor's title was in doubt and he requested postponement of further payments till title determined, to which ven- dee agreed, vendor cannot assert invalidity of latter agreement. Syl. 6 (VII, 174). Estoppel by silence. Approved in Marine Iron Wks. v. Weiss, 148 Fed. 153, owner of boat which was contracted to be of certain maximum draft is estopped to reject it for exceeding draft where he was present during its building and knew it would exceed draft, but said nothing; Alston v. Connell, 140 N. C. 493, 53 S. E. 295, request of postponement of tender of price in execution of contract for option for sale of land estops party from setting up statute of frauds; Globe Nav. Co. v. Maryland Casualty Co., 39 Wash. 309, 81 Pac. 830, applying rule in action on indemnity bond- Si 9 Wall. 274-315 Notes on U. S. Eeports. 482 9 Wall. 274-282, 19 L. 658, THE JUSTICES v. MUERAY. Syl. 1 (VII, 175). Seventh amendment applies to state court juries. Approved in Gunn v. Union R. E. Co., 27 E. I. 324, 62 Atl. 120, up- holding E. I. Gen. Laws 1896, c. 251, § 11, authorizing supreme court to direct judgment without further trial by jury. 9 Wall. 282-290, 19 L. 576, PUBLIC SCHOOLS v. WALKER. Syl. 2 (VII, 177). Limitation statute is one of repose. Approved in Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 140 Fed. 722, limitation for bringing suit as provided in insurance policy begins to run on clear announcement by company of its refusal to settle. 9 Wall. 290-294, 19 L. 712, BUENETT v. CALDWELL. Syl. 2 (VII, 178). Ejectment on vendee's default in payment. See 107 Am. St. Eep. 724, note. Syl. 3 (VII, 178). Notice to quit to vendee in default unnecessary. See 107 Am. St. Eep. 726, note. 9 Wall. 295-298, 19 L. 694, LOBEANO v. NELLIGAN. Syl. 1 (VII, 178). Statute permitting guardian to sell. Approved in State v. Bryan, 50 Fla. 363, 39 So. 951, upholding Laws 1905, c. 5384, abolishing certain schools and colleges. 9 Wall. 298-315, 19 L. 579, THE SECRETAEY OP THE INTERIOE V. McGAEEAHAN. Syl. 3 (VII, 179). No mandamus to control discretion. Approved in Beebe v. Commissioner of State Land Office, 137 Mich. 49, 100 N. W. 129, mandamus does not lie to review determination of State Land Commissioner under Act No. 107, p. 154 of 1899, requiring him to issue certificate of homestead entry when in his judgment appli- cation is made in good faith; Barnes v. Wilson County Commrs., 135 N. C. 40, 47 S. E. 742, denying mandamus to compel county board to issue liquor license; Wilbourne v. Baldwin, 5 Okl. 280, 47 Pac. 1050, refusing to enjoin Indian agent from removing homestead applicant from lands prior to issuance of patent; Fitzgerald v. Keith, 5 Okl. 264, 48 Pac. Ill, territorial courts cannot review action of Interior Department in its disposition of public lands prior to issuance of patent; dissenting opinion in Sproat v. Durland, 2 Okl. 52, 35 Pac. 888, majority holding in proceedings by homestead applicant to enjoin adverse claimant from interfering with possession, court may, on answer and cross-complaint, enjoin plaintiff from interfering with de- fendant's possession; Adams v. Couch, 1 Okl. 34, 35, 26 Pac. 1015, ejectment cannot be predicated on receiver's duplicate receipt; Wilson v. Cox, 73 S. C. 400, 53 S. E. 613, mandamus does not lie to compel dispenser to operate dispensary where, in order to do so, court would Bet aside election against dispensary; Laramie Nat. Bank v. Steinhoff, 483 Notes on U. S. Reports. 9 Wall. 315-364 11 Wyo. 307, 71 Pac. 994, in action by one in possession of land claim- ing under certificate of purchase, where no patent has issued, court cannot determine title. See 98 Am. St. Rep. 874, note. ^yl. 6 (VII, 180). Mandamus to olTicor abates on resignation. Approved in State v. Board of State Canvassers, 32 Mont. 15, 17, 79 Pac. 402, 403, where mandamus proceeding has abated because of expiration of term of office of official against whom directed, it will be dismissed on court's own motion; Holdermann v. Schanc, .^(3 W. Va. 15, 48 S. E. 514, where, when mandamus to compel mayor and councilmen to reconvene as canvassing board was issued, their terms had expired, writ cannot be used against successors. 9 Wall. 315-326, 19 L. 714, LYXCII v. BERNAL. Syl. 4 (VII, 182). Public lands— Doctrine of relation. Approved in United States v. Detroit Timber etc. Co., 200 U. S. 335, 50 L. 505, 26 Sup. Ct. 282, protecting bona fide purchaser from patentee without notice of entrj-man's fraud, though purchaser ac- quired interest in lands under contract for standing timber prior to issuance of patent; United States v. Anderson, 194 U. S. 399, 48 L. 1039, 24 Sup. Ct. 716, government cannot retain, as against grantee of lands within indemnity limits, money collected for removal of stone from land between selection of lands and approval of selection; Peyton V. Desmond, 129 Fed. 12, 63 C. C. A. 651, homestead patentee may recover value of timber wrongfully cut and removed from land be-' tween initiation of claim and issuance of patent. 9 Wall. 339-353, 19 L. 696, BIGELOW v. FORREST. Syl. 6 (VII, 187). Decree of sale of remainder. Approved in Turner v. Barraud, 102 Va. 332, 46 S. E. 322, decree of sale of remainder is void where issues did not involve interests of remainderman. Distinguished in Clevenger v. Figley, 68 Kan. 707, 75 Pac. 1004, judgment of district court on foreclosure of mortgage given by owner jointly with guardian of insane wife deciding issue as to whether prem- ises were homestead or not at time of mortgage is not collaterally attackable. 9 Wall. 353-364, 19 L. 701, FIRST NATIONAL BANK v. COMMON- WEALTH OF KENTUCKY. Syl. 1 (VII, 188). Tax on shares not tax on capital. Approved in People's Sav. Bank v. Layman, 134 Fed. 638, fact that bank's assets going to make up value of shares consists of government bonds does not entitle bank to deduction of such amount from assess- ment under Iowa Code, § 1322, assessing savings banks on shares; Stroh V. Detroit, 131 Mich. 116, 90 N. W. 1032, shares in foreign cor- poration, when its property is located and taxable here, are exempt 9 Wall. 364-370 Notes on U. S. Eeports. 484 from taxation under statutes; Old Nat. Bank v. State, 58 W. Va. 562, 52 S. E. 495, government bonds held by national bank as part of its capi- tal not taxable under state authority ; First Nat. Bank v. Douglas Co., 124 Wis. 21, 22, 102 N. W. 317, 318, real estate belonging to national bank which is acquired with and constituting part of its capital is ex- empt from taxation. Syl. 3 (VII, 192). Eequiring national bank to pay stockholder's tax. Approved in Carstairs v. Cochran, 193 U. S. 16, 48 L. 597, 24 Sup. Ct. 318, upholding Md. Laws 1892, c. 704, as amended in 1900, re- quiring owners of bonded warehouses to pay taxes on liquors stored and giving them lieii on property therefor; Commonwealth v. Citizens' Nat. Bank, 117 Ky. 955, 80 S. W. 160, upholding Acts 1900, p. 65, c. 23, relating to taxation of national bank shares. Syl. 4 (VII, 192). State regulation of federal instrumentalities. Approved in Hibernia Sav. etc. Soc. v. San Francisco, 200 U. S. 314, 50 L. 496, 26 Sup. Ct. 265, treasury checks for interest accrued on government bonds are taxable by state in hands of owner; Coving- ton V. First Nat. Bank, 198 U. S. Ill, 49 L. 969, 25 Sup. Ot. 562, holding Ivy. Act March 21, 1900, making national banks liable for taxes for past years on capital stock, is void, where previously national banks not rcquirfd to return shares held outside of state; Corry v. Baltimore, 196 U. S. 475, 103 Am. St. Eep. 371, 49 L. 561, 25 Sup. €t. 297, upholding Md. Code Pub. Gen. Laws, art. 81, imposing on nonresident stockholder in domestic corporation personal liability for taxes on his stock enforceable by personal action by corporation; State V. Shryaek, 179 Mo. 440, 78 S. W. 812, under Laws 1895, p. 242, real estate of banks mvist be assessed to corporation, the personalty not at all, and shares in names of stockholders; Cogswell v. Second Nat. Bank, 76 Conn. 254, 56 Atl. 575, upholding appointment of re- ceiver for national bank; State v. Fleming, 70 Neb. 538, 97 N. W. 1068, upholding Laws 1903, c. 73, taxing insurance companies. Distinguished in Knoxville Traction Co. v. McMillan, 111 Tenn. 525, 77 S. W. 666, 65 L. E. A. 296, holding void Acts 1903, p. 599, c. 257, making railroad leasing advertising privilege liable for tax on business of advertising in cars. 9 Wall. 364-370, 19 L. 734, JONES v. BOLLES. Syl. 1 (VII, 194). Equity jurisdiction over fraud. Approved in Levi v. Mathews, 145 Fed. 154, federal court at law cannot entertain defense setting up fraud in procuring contract sued on; Parker v. Black, 143 Fed. 561, bankruptcy trustee may sue in equity to recover payment made by bankrupt to creditor as voidable preference; Manning v. Berdan, 135 Fed. 161, upholding jurisdiction of bill to enjoin action at law OQ note obtained by fraud, and to cancel same. 485 Notes on U. S. Reports. 9 Wall. 3S7-40S Distinguished in General Elec. Co. v. Westingliouse Elec. & Mfg. Co., 144 Fed. 4G6, denying injunction to restrain violation of contract for manufacture and sale of goods which provided penalty for violation thereof. Syl. 3 (VII, 195). Proper parties — Cancellation of corporation's agreement. See 97 Am. St. Rep. 46, note. Syl. 4 (VII, 195). Equity — Allegations showing jurisdiction. Approved in Wood v. Deskins, 141 Fed. 507, where there is no con- troversy between one joint vendor and purchaser who has dispute with others as to rights under contract, first vendor who refused to join suit and was made defendant cannot be aligned as complainant to defeat federal jurisdiction. Distinguished in Shewalter v. Lexington, 143 Fed. 166, denying federal jurisdiction over suit to quiet title as against street improve- ment certificates amounting to less than $2,000. 9 Wall. 387-394, 19 L. 736, BUSHNELL v. KENNEDY. Syl. 3 (VII, 196). Federal suit by assignee. Distinguished in Kolze v. Hoadley, 200 U. S. 82, 85, 50 L. 380, 382, 26 Sup. Ct. 220, suit to foreclose trust deed cannot be maintained in federal court unless assignor could sue therein, though bill prays cancellation of release for fraud; Utah-Nevada Co. v. De Lamar, 133 Fed. 119, 66 C. C. A. 179, suit by assignee of oral contract to recover money due thereon cannot be brought in federal court unless assignor could sue therein. Syl. 5 (VII, 198). Defendant removing suit on assigned cause. Approved in Greevy v. Jacob Tome Institute, 132 Fed. 409, where state court acquired jurisdiction of suit by attachment against foreign corporation under state statute, federal court had jurisdiction on re- moval by defendant; Finley v. Chaniberlin, 46 Fla. 587, 35 So. 3, applying rule to change of venue for disqualification of judge. 9 Wall. 394-408, 19 L. 757, NOOXAN v. BRADLEY. Syl. 1 (VII, 198). Foreign administrator cannot sue. Approved in Brooks v. Southern Pac. Co., 148 Fed. 997, personal representative of decedent qualified in one state cannot sue in another for tort under state statute permitting action by foreign administrator for debts due decedent; Graham v. Lybrand, 142 Fed. Ill, applying rule to action by foreign administrator to compel resident executor to turn over to him assets of estate. Distinguished in Moore v. Petty, 135 Fed. 673, 68 C. C. A. 306, executor may sue in another state to recover from agent employed by him proceeds of sale of realty bcloughig to estate. 9 Wall. 409-486 Notes on XJ. S. Reports. 486 Syl. 8 (VII, 201). Ambiguities construed against party preparing bond. Approved in Hildreth v. Duff, 143 Fed. 140, construing contract of employment to perfect certain machine as not binding employee to assign patent for essentially different machine. 9 Wall. 409-414, 19 L. 704, THE MAYOR v. LORD. Syl. 6 (VII, 204). Mandamus to compel tax to pay bonds. Approved in Theis v. Commrs. of Washita County, 9 Okl. 653, 60 Pac. 508, where county commissioners issued bridge warrants in ac- cordance with statute, and failed to make tax levy to liquidate war- rants, remedy of holders is mandamus and not action to recover money. See 105 Am. St. Rep. 216, 217, note. 9 Wall. 415-419, 19 L. 732, SUPERVISORS v. DURANT. Syl. 1 (VII, 204). Mandamus to compel tax to pay judgment. Approved in Theis v. Commrs. of Washita County, 9 Okl. 653, 60 Pac. 508, where county board issued bridge warrants in accordance with statute and failed to make tax levy to liquidate them, mandamus and not action to recover money is remedy of holder. Syl. 2 (VII, 205). State injunction as barring federal mandamus. See 105 Am. St. Rep. 216, 217, note. 9 Wall. 435-461, 19 L. 772, THE MAGGIE HAMMOND. Syl. 7 (VII, 209). Rules of maritime law. See 113 Am. St. Rep. 883, note. Syl. 15 (VII, 210). Fear of ice justifying delay in transportation. Approved in Philadelphia etc. Ry. Co. v. Peale, Peacock & Kerr, 135 Fed. 60S, starting on voyage while there was floating ice in river which later injured barge and caused delay, not negligence. 9 Wall. 461-467, 19 L. 739, PHOEXIX INSURANCE CO. v. COPELIN. Syl. 3 (VII, 211). Unreasonable delay in repairs by insurer. Approved in Hume v. Frenz, 150 Fed. 508, applying rule where stranded vessel temporarily repaired by insurer, who five months later permanently repaired her and sold her for repairs. 9 Wall. 477-486, 19 L. 725, THE CITY OF KENOSHA v. LAMSON. Syl. 9 (VII, 216). Interest coupons not severed till paid. Approved in Wright v. East Riverside Irr. Dist., 138 Fed. 322, 326, where bonds issued under Cal. St. 1877, p. 34, c. 34, were prepared and coupons lithographed with name of then secretary of district, but not delivered for eighteen months, and successor of secretary signed them, but predecessor's signature on coupons not changed, bonds were void. 487 Notes on U. S. Eeports. 9 Wall. 486-575 9 Wall. 486-500, 19 L. 621, INGLE v. JONES. Syl. 7 (VII, 218). Further time to take testimony discretionary. Approved in Long v. Anderson, 48 Fla. 289, 37 So. 22U, it is abuse of discretion to refuse further time to take testimony where defend- ant prevented from taking testimony by absence of master in chan- cery; Maxwell v. Jacksonville Loan etc. Co., 45 Fla. 457, 34 So. 265, arguendo. 9 Wall. 501-504, 19 L. 762, HOE v. WILSON. Syl. 4 (VII, 219). No decree unless indispensable parties present. Approved in Florida Land etc. Co. v. Anderson, 50 Fla. 513, 39 So. 396, following rule. 9 Wall. 517-521, 19 L. 744. THE KEOKUK. Syl. 2 (VII, 222). No lien to cargo owner till delivery. Approved in Guflfey v. Alaska etc. S. S. Co., 130 Fed. 274, 64 C. C. A. 517, where at time goods delivered at wharf under bill of lading reciting goods to be shipped on board ship then at port, complainant knew ship at sea, and goods never delivered to ship, vessel not liable to lien for breach of contract. See 105 Am. St. Eep. 350, note. 9 Wall. 544-554, 19 L. 763, MICHIGAN BANK v. ELDRED. Syl. 8 (VII, 226). Notes— Authorization to fill blanks. Approved in Mechanics' Bank v. Chardavoyne, 09 N. J. L. 259, 101 Am. St. Rep. 701, 55 Atl. 1081, bank receiving from A, without notice of infirmity, note, in payment of debt due from him to bank, which A's wife had indorsed in blank for him to discount for her benefit, is bona fide holder. 9 Wall. 554-560. 19 L. 584, UNITED STATES v. ADAMS. Syl. 2 (VII, 227). Correction on appeal of mistake in findings. Approved in dissenting opinion in State v. Marsh, 134 N. C. 203, 47 S. E. 13, 67 L. E. A. 179, majority granting certiorari to correct record where appeal from conviction for rape reversed because indict- ment as shown by record failed to allege want of consent, whereas indictment did in fact contain such allegation. 9 Wall. 560-567, 19 L. 560, HORNTHALL v. THE COLLECTOR. Syl. 5 (VII, 229). No costs on dismissal for want of jurisdiction. Approved in Sena v. United States, 147 Fed. 490, where appellate court is without jurisdiction of criminal appeal, it cannot direct marshal to deliver prisoner to warden to carry out sentence. 9 Wall. 567-575, 19 L. 748, THE ASSESSOR v. OSBORNE. Syl. 7 (VII, 230). Repeal of law conferring jurisdiction. Approved in United States v. Sena, 12 N. M. 414, 78 Pac. 62, repeal of Laws 1901, p. 190, c. 99, deprived supreme court of jurisdiction 9 Wall. 575-630 Notes on U. S. Eeports. 488 over criminal appeals not taken during term at which judgment ren- dered; Terry v. McClung, 104 Va. 601, 52 S. E. 356, under Acts 1887-88, p. 68, c. 58, depriving county court of jurisdiction in road cases and conferring same on supervisors, pending proceedings lapsed. 9 Wall. 575-579, 19 L. 681, LITCHFIELD v. REGISTER AND RE- CEIVER. Syl. 2 (VII, 231). Equitable jurisdiction over public lands. Approved in Laramie Nat. Bank v. Steinhoff, 11 Wyo. 307, 71 Pac. 994, in action by one in possession of land under certificate of pur- chase against claimant under entry, court cannot determine title; dissenting opinion in Sproat v. Durland, 2 Okl. 52, 35 Pac. 888, ma- jority holding, in proceedings by homestead applicant to enjoin ad- verse claimant from interfering with possession, court may, on answer and cross-complaint, enjoin plaintiff from interfering wit"h defendant's possession. Syl. 3 (VII, 232). Equity jurisdiction after land office decision. Approved in Wilbourne v. Baldwin, 5 Okl. 276, 47 Pac. 1048, re- fusing to enjoin Indian agent from removing homestead applicant from lands prior to issuance of patent; Fitzgerald v. Keith, 5 Okl. 263, 48 Pac. Ill, territorial courts cannot review action of Interior Department in its disposition of public lands prior to issuance of patent; Adams v. Couch, 1 Old. 34, 35, 26 Pac. 1015, ejectment can- not be predicated on receiver's duplicate receipt. 9 Wall. 579-592, 19 L. 792, THOMPSON v. UNION PACIFIC R. R. Syl. 5 (VII, 233). State tax on federal agent's property. Approved in Baltimore Shipbuilding etc. Co. v. Baltimore, 195 U. S. 382, 49 L. 245, 25 Sup. Ct. 50, upholding tax on land conveyed to corporation for drydock purposes though government reserved right to free use of dock. 9 Wall. 592-603, 19 L. 683, MERRYMAN v. BOURNE. Syl. 2 (VII, 235). Grantee in fee may deny vendor's title. Approved in Oregon etc. R. R. Co. v. Quigley, 10 Idaho, 784, 80 Pac. 405, and Swain v. McMillan, 30 Mont. 441, 76 Pac. 946, both following rule; Scott v. Mineral Dev. Co., 130 Fed. 502, 64 C. C. A. 659, continuation of possession of tract under deed conveying whole tract but part of which only is entered, gives adverse title to whole as against one out of possession; Fountain v. Lewiston Nat. Bank, 11 Idaho, 469, 83 Pac. 510, arguendo. 9 Wall. 617-630, 19 L. 800, IRVINE v. IRVINE. Syl. 1 (VII, 238). Estoppel by deed— After-acquired title. Approved in Clark v. Sayers, 55 W. Va. 527, 47 S. E. 318, following rule; Weeks v. Wilkins, 139 N. C. 218, 51 S. E. 910, applying rule where infant on attaining majority failed to disaffirm deed. 489 Notes on U. S. Eeports. 9 Wall. 659-672 9 Wall. G59-GG1, 19 L. 807, DOWXHAM v. ALEXANDRIA. Syl. 1 (VII, 243). Writ of error to inferior state court. Cited in Kentucky v. Powers, 201 U. S. 38, 50 L. 650, 26 Sup. Ct. 387, arguendo. 9 Wall. 661-664, 19 L. 808, UMITED STATES v. ADAMS. Syl. 1 (VII, 244). Certiorari on diminution of record. Approved in Whitney v. Dick, 202 U. S. 139, 50 L. 966, 26 Sup. Ct. 584, circuit court of appeals cannot issue certiorari to review con- viction in inferior federal court where only question is whether fed- eral courts have jurisdiction over offense. 9 Wall. 665-G72, 19 L. 767, THE QUICKSTEP. Syl. 1 (VII, 245). Findings of fact by two courts. Approved in The Tnca, 148 Fed. 367, upholding findings on conflict- ing evidence as to liability of tug for grounding of tug. Syl. 2 (VII, 245). Liability for tort— Contract of towage. Approved in The Oceanica, 144 Fed. 304, towing vessel liable for injury to tow resulting from negligence notwithstanding contract that towing should be at tow's risk; The W. G. Mason, 142 Fed. 918, where two tugs of same owner were towing ship and master of leader directed movements of ship, but rear tug, as to own movements, was under control of own master, rear tug not liable in rem for stranding of tow through fault of other tug. Syl. 5 (VII, 246). Collision— Tow in control of tug. Approved in The Joseph Peene, 130 Fed. 490, holding tug liable for injuries to tow caused by floating ice. Syl. 6 (VII, 246). Duty of tug to properly secure lines. Approved in The Britannia, 148 Fed. 499, holding tug at fault for using hawser which was unsound, and not having more than one; The Inca, 148 Fed. 368, holding tug liable for grounding of tug on known mound of rocks and for injuries caused by pulling her off, instead of waiting for her to float with tide; Mouongahela Eiver etc. Co. v. O'Neil, 144 Fed. 79, holding tug liable for (;^psizing of towed dredger; Cotton v. Almy, 141 Fed. 362, upholding finding of negligence in towing houseboat between tug and loaded scows, thereby subjecting it to unnecessary strain; The Lyndhurst, 129 Fed. 844, holding tug liable for injury to tow from collision with moored vessel caused by towing line slipping. Distinguished in The Lyndhurst, 147 Fed. 113, holding canal boat towed by tug at fault for collision where its master failed to properly secure towing line. 9 Wall. G72-758 Notes on U. S. Eeports. 490 9 Wall. C72-G77, 19 L. 7S3, THE SYRACUSE. Syl. 2 (VII, 247). Failure to slacken speed in meeting tow. Approved in The Georgetown, 135 Fed. 858, holding steamer at fault for collision with barge in tow of tug; American S. S. Co. v. American S. B. Co., 129 Fed. 67, 63 C. C. A. 507, holding steamer at fault for collision while passing between meeting tows. 9 Wall. 677-681, 19 L. 810, INSURANCE CO. v. WEIDE. Syl. 3 (VII, 247), Admissibility of account-books to prove value. Approved in Grunberg v. United States, 145 Fed. 92, applying rule on issue as to contents and value of cases of imported goods alleged to have been entered at undervaluation through conspiracy. 9 Wall. 682-687, 19 L. 754, THE PORTSMOUTH. Syl. 1 (VII, 249). Jettison of cargo — Fault of master. Approved in Corsar v. Spreckels etc. Co., 141 Fed. 264, holding cargo improperly stowed, thereby rendering ship unseaworthy and vessel liable for jettison of part of cargo. 9 Wall. 740-743, 19 L. 586, WILKINS v. ELLETT, Syl. 1 (VII, 252). Situs of personalty of decedent. Approved in Hopkins' Appeal, 77 Conn. 652, 60 Atl. 660, exacting death duties under Rev. 1902, §§ 2367-2377, on personalty of resident decedent wherever situate; Hartley v. Hartley, 71 Kan. 693, 81 Pac. 5U5, damages recovered for death of Kansas resident by wrongful act committed in Iowa are disposed of by Iowa statute; Bates Machine Co. v. Norton Iron Works, 113 Ky. 379, 68 S. W. 425, where debtor is resident, fact that debt is about to be collected by cred- itor and money removed from state, not leaving sufficient to satisfy plaintiff's claim against creditor, is ground for attachment. Syl. 3 (VII, 254). Payment to foreign domiciliary administrator. Approved in O'Connor v. Root, 130 Iowa, 562, 107 N. W. 611, where administrator has collected all assets of estate of decedent, who was resident of this state, and all creditors are residents, creditor will be enjoined from applying for letters in another state, 9 Wall. J43-758, 19 L. 814, WALKER v. WALKER. Syl. 1 (VII, 255). Separate maintenance contracts valid. Approved in Baird v. Connell, 121 Iowa, 284, 96 N. W. 865, up- holding separation agreement under which husband paid wife $1,100 for her interest in certain lands; Bailey v. Dillon, 186 Mass. 246, 71 N. E. 639, 66 L. R. A. 427, upholding separation agreement, through trustee, by which wife, in consideration of payments, agrees to re- lease husband from liability for separate maintenance. 491 Notes on U. S. Reports. 9 Wall. 758-804 Syl. 5 (VII^ 25G). Federal jurisiliction over administrations. Approved in Hchurnicier v. Connecticut etc. Ins. Co., 137 Fed. 45, 69 C. C. A. 22, determining limitation on contingent claims against estates under Minnesota statutes; Alice E. Min. Co. v. Blanden, 136 Fed. 254, applying rule to establishment of claim against admin- istrator of deceased debtor; dissenting opinion in James v. Gray, 131 Fed. 415, 65 C. C. A. 385, majority holding loan by wife to husband from separate estate is provable against his bankrupt estate, irre- spective of its enforceability under state law. 9 Wall. 758, 759, 19 L. 710, THE GUY. Syl. 1 (VII, 257), Liens for supplies to vessel. Approved in The Surprise, 129 Fed. 876, 64 0. C. A. 309, upholding lien for supplies and wharfage furnished ship in foreign port on order of master, though she is navigated by charterer, who is bound to make all disbursements. 9 Wall. 759-766, 19 L. 820, WATKINS v. UNITED STATES. Syl. 3 (VII, 258). Credits allowed on officers' accounts. Approved in United States v. Pierson, 145 Fed. 817, 818, applying rule in action on bond of Indian agent. 9 Wall. 766-779, 19 L. 822, BUTLER v. MAPLES. Syl. 1 (VII, 259). General and special agency distinguished. Approved in Moore v. Skyles, 33 Mont. 137, 82 Pac. 799, 3 L. R. A. (N. S.) 136, one to whom money order given by another to see if it was all right, and if so, to cash it, is special agent. 9 Wall. 78S-S04, 19 L. 566, PROVIDENCE RUBBER CO. v. GOOD- YEAR. Syl. 8 (VII, 262). Process and product separate patent subjects. Cited in Sanitas Nut Food Co. v. Voight, 139 Fed. 552, arguendo. Syl. 10 (VII, 263). Extension of patent by commissioner conclusive. Approved in Eastern Paper Bag Co. v. Continental Paper Bag Co., 142 Fed. 511, holding Liddell patent No. 558,969, for paper-bag ma- chine, valid and infringed. Syl. 13 (VII, 264). Time to object to omission of word "patented." Approved in Pettibone etc. Co. v. Pennsylvania Steel Co., 134 Fed. 889, objection for failure to prove allegation, not denied, that machine was marked "patented" cannot be taken for first time on entry of de- cree. Syl. 14 (VII, 265). Profits of infringer of patents. Approved in Corbin v. Taussig, 137 Fed. 153, determining expenses to be offset from infringing profits where articles formed part of general business. 10 Wall. 1-22 Notes on U. S. Eeports. 492 9 Wall. 807-811, 19 L. 587, PROVIDENCE ETC. RUBBER CO. v. GOODYEAR ETC. RUBBER CO. S7I. 2 (VII, 267). Cross-bill is auxiliary to original suit. Approved in Gilmore v. Bort, 134 Fed. 661, 662, in suit for cancella- tion of bond to indemnify corporation and its treasurer for deposit of funds in bank, on ground of fraud in procurement, cross-bill by treasurer setting up defense against corporation does not entitle bins to object to dismissal. 9 Wall. 812-816, 19 L. 829, BISCHOFF v. WETHERED. Syl. 1 (VII, 268). Judgment on personal service out of jurisdiction. Approved in Haddock v. Haddock, 201 U. S. 568, 50 L. 869, 26 Sup. Ct. 525, mere domicile in state of one spouse does not give state courts jurisdiction to render divorce against nonresident nonappearing de- fendant served by publication; Murray v. Strong, 2 Alaska, 519, judgment in Yukon Territory against resident of Alaska on personal notice served in Alaska is void. X WALLACE. 10 Wall. 1-15, 19 L. 870, THE BLACKWALL. Syl. 4 (Vn, 271). Salvage defined. Approved in Spaulding v. Alaska Com. Co., 1 Alaska, 501, persons knowing barges driven on shore by wind at place designed by master, and reaching them ahead of owner's employees, and going aboard dryshod and attaching line to anchor ashore, are not salvors. Syl. 8 (VII, 272). Amount of salvage, how determined. Approved in The Chief, 147 Fed. 877, allowing $1,000 salvage for towing disabled tug worth $5,600, where she was in no great danger; The Lottie E. Hopkins, 133 Fed. 407, where fishing vessel valued at from $600 to $1,000 lost rudder and was drifting toward rocks in storm, tug towing ship to port entitled to $200 salvage. Syl. 9 (VII, 272). Salvage not awarded on quantum meruit. Approved in Spaulding v. Alaska Com. Co., 1 Alaska, 508, persons knowing barges driven ashore by wind at place designed by master, and reaching them ahead of owner's emploj^ees, and going aboard dry- shod and attaching line to shore anchor, are not salvors. 10 Wall. 15-22, 19 L. 875, THE DAVIS. Syl. 1 (VII, 273). Salvage of government property. Approved in The John McCracken, 145 Fed. 707, vessels owned by port of Portland and used by it to improve harbor are not seizable 493 Notes ou U. S. Reports. 10 Wall. 3,3-126 in admiralty suit in rem; United States v. Cornell Steamboat Co., 202 U. S. 190, 50 L. 990, 26 Sup. Ct. 648, affirming 137 Fed. 457, 69 C. C. A. 603, and upholding federal jurisdiction over libel in personam for salvage on duties collected on sugar afterward saved from fire while on lighter in charge of customs officials; Walker v. United States, 139 Fed. 413, refusing recovery of payments made by govern- ment as compensation to marshal long after expiration of term of office; Rees v. United States, 134 Fed. 146, allowing salvage to crew of one of two government vessels for saving government property from wreck of other. 10 Wall. 33-38, 19 L. 882, BATES v. EQUITABLE INS. CO. Syl. 3 (VII, 276). Policy indorsed payable to third person. Approved in Atlas Reduction Co. v. New Zealand Ins. Co., 138 Fed. 505, 510, indorsement of polic}' as payable to A as his interest may appear does not waive condition against encumbrances. 10 Wall. 38-56, 19 L. 844, PEOPLE'S RAILROAD v. MEMPHIS RAILROAD CO. Syl. 1 (VII, 277). Power to grant franchises not delegatable. Approved in Covin v. Chicago, 132 Fed. 854, construing term of grant under Illinois Acts of 1859, 1801, and 18G5, relating to Chicago city railways. Syl. 4 (A"II, 278). Consent by city to operation of street railroads. Approved in Blair v, Chicago, 201 U. S. 460, 50 L. 826, 26 Sup. Ct. 427, construing terms of grant under Illinois Acts of 1859, 1861, and 1865, relating to Chicago city railways. 10 Wall. 68-91, 19 L. 839, TEXAS v. HARDENBERG. Syl. 1 ("VII, 278). Relief under general prayer. Approved in Sprinkle v. W^ellborn, 140 N. C. 177, 111 Am. St. Rep. 837, 52 S. E. 671, 3 L. R. A. (X. S.) 174, where vendee, who has obtained deed by fraud, has conveyed property to bona fide purchaser, in suit to cancel deed original grantor may have personal judgment against his grantee for profits of sale. 10 Wall. 117-126, 19 L. 866, STIMPSON v. WOODMAN, Syl. 1 (VII, 281). Patents — Changes involving mechanical skill. Approved in Daylight Glass Mfg. Co. v. American Pris. Light Co., 142 Fed. 457, Cummings patent No. 695,282, for machine for making prismatic glass, is void in view of prior art; North Jersey St. Ry. Co. v. Brill, 134 Fed. 584, 67 C. C. A. 380, Brill patents Nos. 627,898 aad 627,900, for car trucks, are void in view of prior art. 10 Wall. 129-192 Notes on U. S. Eeports. _ 494 10 Wall. 129-133, 19 L. 884, WIGGINS v. BURKHAM. Syl. 1 (Vn, 282). Unobjected account becomes stated. Approved in Sharp v. Behr, 136 Fed. 798, where statements of ship- ments of ore, as to which party entitled to royalties, were without specifications, and party had no figures with which to verify account rendered, failure to object not waiver of right to object; Ketchum v. Stetson etc. Mill Co., 33 Wash. 95, 73 Pac. 1127, account in which purchaser of logs listed them at what seller claimed was agreed price is conclusive evidence that price of logs had been agreed on, though account contained counterclaim. 10 Wall. 141-152, 19 L. 923, FIELD v. FARRINGTON. Syl. 1 (VII, 286). Failure of principal to object to factor's delay. Approved in Mcintosh v. Merchant, 40 Wash. 480, 82 Pac. 754, where factor, unable to sell goods at principal's price, turned same over to another for sale and notified principal, latter 's failure to ob- ject for six months is ratification. 10 Wall. 152-158, 19 L. 897, BANK OF THE REPUBLIC v. MIL- LARD. Syl. 1 (VII, 287). Bank deposits belong to bank. Approved in Burton v. United States, 196 U. S. 301, 49 L. 488, 25 Sup. Ct. 243, allegation of payment at St. Louis not supported by evidence that checks drawn on St. Louis bank were received in Wash- ington and deposited in bank there; Bank of Blackwell v. Dean, 9 Okl. 631, 60 Pac. 228, determining whether or not deposit was special deposit entitled to priority on insolvency of bank; Guthrie Nat. Bank V. Gill, 6 Okl. 563, 54 Pac. 435, draft is not equitable assignment pro tanto of funds in hands of drawee to credit of drawer before accept- ance. Syl. 2 (VII, 289). Privity between drawer of check and bank. Approved in dissenting opinion in Burton v. United States, 196 U. S. 309, 49 L. 491, 25 Sup. Ct. 243, majority holding allegation of pay- ment at St. Louis not supported by evidence that checks drawn on St. Louis bank were received in Washington and deposited in bank there; Eastern Milling etc. Co. v. Eastern Milling etc. Co., 146 Fed. 762, holder of check has no right to priority of payment, on drawer 'a subsequent insolvency, from fund due from bank. 10 Wall. 176-192, 19 L. 909, MEMPHIS RAILROAD CO. v. REEVES. Syl. 4 (VII, 296). Carriers— Act of God— Burden of proof. Approved in Nashville etc. Ry. Co. v. Stone, 112 Tenn. 371, 79 S. W. 1036, following rule; Hunter v. Ricke, 127 Iowa, 111, 102 N. W. 827, applying nile where horse in charge of liveryman was burned in fire; Jones v. Minneapolis etc. Ry. Co., 91 Minn. 231, 97 N. W. 893, holding where cattle train caught in blizzard and cattle frozen, carrier not liable. 495 Notes on U. S. Ecports. 10 Wall. 192-218 Distinguished in Grier v. St. Louis etc. Ry. Co., 108 Mo. App. 570, 84 S. W. 159, in trover against carrier for failure to deliver goods, delivery by consignor and failure to deliver to consignee establishes prima facie case. Syl. 6 (VII, 297). Carriers — Proximate cause — Loss by delay. Approved in Green-'Wheeler etc. Co. v. Chicago etc. Ry. Co., 130 Iowa, 124, 106 N. W. 498, and Moffatt Com. Co. v. Union Pac. Ry. Co., 113 Mo. App. 548, 88 S. W. 118, both following rule; Northern Pac. Ry. Co. v. Kempton, 138 Fed. 997, applying rule when cattle injured by blizzard and separate delays contributed to injury; Texas & P. Ey. Co. v. Coutourie, 135 Fed. 475, 68 C. C. A. 177, applying rule where cotton would not have been in sheds and burned but for delay in forwarding; Empire State etc. Co. v. Atchison etc. Ry. Co., 135 Fed. 142, where, owing to floods, carrier could not deliver cattle but sent them to another place, where they were put in yards which were after- ward flooded by storms and cattle moved to prevent drowning, carrier not liable for loss; General Fire Extinguisher Co. v. Carolina etc. Ry. Co., 137 X. C. 283, 49 S. E. 210, applying rule where goods destroyed by fire; Hayes & Cooley, 13 N. D. 208, 100 N. W. 252. in action for breach of contract to thresh grain, loss of grain by exposure to storm is remote consequence. 10 Wall. 192-204, 19 L. 906, THE LULU. Syl. 2 (VII, 301). Foreign port — Pledge of vessel's credit. Approved in The New Brunswick, 129 Fed. 895, 64 C. C. A. 325. where place of business of corporation owning ship is at port in state other than that of its creation, master cannot impress lien on vessel in that port for supplies. Syl. 4 (A^II, 302). Burden to show necessity for vessel's credit. Approved in The Wyandotte, 145 Fed. 325, 326, affirming 136 Fed. 473, where master of English vessel in American port drew draft to raise money for supplies, which was discounted at instance of ship "s agents, discounters had lien on ship and burden was on owners to show they had personal credit; The Surprise, 129 Fed. 877, 64 C. C. A. 309, upholding lien for supplies and wharfage furnished vessel in foreign port on master's order, though navigated by charterer, who was to make all disbursements. 10 Wall. 204-218, 19 L. 941, THE KALORAMA. Syl. 1 (VII, 303). Action in rem for maritime contract. Approved in Bank of British N. A. v. Freights etc. of Hutton, 137 Fed. 538, 70 C. C. A. 118, where bank had maritime lien on freight of vessel for advances, it could enforce it by action in admiralty in rem, though it had equitable lien. 10 Wall. 218-299 Notes on U. S. Eeports. 496 Syl. 3 (VII, 304). Supplies in foreign port on ship's credit. Approved in The Wyandotte, 145 Fed. 325, where master of English vessel in American port drew draft to raise money for supplies, which was discounted at instance of ship's agents, discounter had lien on ship; The Surprise, 129 Fed. 875, 876, 64 C. C. A. 309, upholding lien for supplies and wharfage furnished vessel in foreign port on master's order, though navigated by charterer, who was to make all disburse- ments. Syl. 5 (VII, 305). Lien for supplies in foreign port. Approved in The Worthington, 133 Fed. 725, 70 L. R. A. 353, 66 C. C. A. 555, applying rule where one advanced money in foreign port on credit of vessel to owner of vessel, who was without funds, to be used for loading vessel; The Surprise, 129 Fed. 876, 64 C. C. A. 309, upholding lien for supplies and wharfage furnished vessel in foreign port on master's order, though navigated by charterer, who was to make all disbursements. Syl. 6 (VII, 305). State action for advances bars lien. Distinguished in Northwestern Com. Co. v. Bartels, 131 Fed. 27, 28, 65 C. C. A. 263, where one entitled to maritime lien files claim in state court receivership proceedings and consented to sale of ship, and asserts priority of claim to proceeds, he is estopped to enforce lien in admiralty. 10 Wall. 218-224, 19 L. 895, BRAUN v. SAUERWEIN. Syl. 1 (VII, 306). Suspension of limitations by statutory disability. Approved in Alice E. Min. Co. v. Blanden, 136 Fed. 255, holding under Iowa statutes action on note given by decedent not barred where administration could not have been had earlier; Cobb v. Hous- ton, 117 Mo. App. 653, 94 S. W. 301, statute of limitations is sus- pended during defendant's nonresidence. 10 Wall. 224-245, 19 L. 900, HORNSBY v. UNITED STATES. Syl. 8 (VII, 308). Mexican grantee's interest, how devested. Approved in Catron v. Laughlin, 11 N. M. 635, 72 Pac. 33, following rule. 10 Wall. 256-263, 19 L. 893, NEW ORLEANS R. R. v. MORGAN. Syl. 1 (VII, 309). Affirmance where no error disclosed. Cited in Cassatt v. Mitchell Coal & Coke Co., 150 Fed. 42, arguendo. 10 Wall. 273-299, 19 L. 915, SLAUGHTER-HOUSE CASES. Syl. 7 (VII, 312). Appeal from injunctional order not stay. Approved in Elliott v. Kuzek, 2 Alaska, 591, where, on dismissal after trial on merits, injunction pendente lite was dissolved, in action on injunction bond, plea setting up appeal from dismissal and giving of supersedeas bond is demurrable; State v. Superior Court, 39 Wash. 497 . Notes on U. S. Reports. 10 Wall. 308-321 117, 118, 109 Am. St. Rep. 862, 80 Pac. 1109, 1 L. R. A. (N. S.) d'.i, defendants restrained from operating shooting-gallery are not enti''iJsd, as matter of right, to supersede order pending appaal. Distinguished in State v. Dearing, ISO Mo. G7, 79 S. W. 4?.'^, where trial court on merits dissolves injunction and dismisses bill, it may continue temporary injunction pending appeal. 10 Wall. 308-321, 19 L. 931, COOPER v. REYNOLDS. Sy]. 1 (VII, 315), Judgment — Collateral attack for errors. Approved in Dye v. Crary, 12 N. M. 471, 78 Pac. 533, following rule; Vicksburg etc. R. Co. v. Tibbs, 112 La. 58, 36 So. 225, whore appeal taken by administrator is dismissed by consent, fact that ad- ministrator was discharged prior to rendition of judgment of dismissal is not ground for collateral attack on judgment; Held v. Ebncr, 133 Ped. 158, 66 C. C. A. 222, averment in answer of title through execu- tion sale, averring judgment sale and confirmation, is sufficient with- out setting up in detail proceedings relative to execution and sale; May v. Getty, 140 N. C. 320, 53 S. E. 79, where jurisdiction over non- resident obtained by attachment, judgment not collaterally attackable in so far as it affects attached property. Syl. 2 (VII, 317). Meaning of jurisdiction. Approved in Blevins v. Marledge, 5 Okl. 145, 47 Pac. 10G9, where reference is made to three referees, two only of whom qualify, act, and report, report is valid. Syl. 3 (VII, 318). Jurisdiction acquired by attachment and publica- tion. Ajiprovcd in May v. Getty, 140 N. C. 318, 53 S. E. 78, where juris- diction over nonresident obtained by attachment, sale under general execution issued on judgment is valid; Kerns v. McAulay, 8 Idaho, 565, 69 Pac. 540, where service on nonresident is made by publication and his property attached, personal judgment is valid only as against property attached; Brand v. Brand, 116 Ky. 791, 76 S. W. 870, 63 L. R. A. 206, upholding jurisdiction where property of nonresident was attached; Silver Camp Mining Co. v. Dickert, 31 Mont. 494, 78 Pac. 969, service of summons by publication on nonresident defendant does not warrant decree for specific performance of contract to convey land; Goodwin v. Claytor, 137 N. C. 230, 107 Am. St. Rep. 479, 49 S. E. 175, 69 L. R. A. 209, where service on nonresident was had by publication and garnishment of debt, plaintiff lost no lien on debt by taking judgment against defendant and garnishee; Saleinor.son v. Thompson, 13 N. D. 194, 101 N. W. 323, upholding judgment where property attached was alleged to have been transferred by debtor in fraud of creditors; Ireland v. Adair, 12 N. D. 33, 94 N. W. 767, judg- ment against nonresident served by publication is void where attach- ment return does not show delivery of copy of writ and of notice showing property attached to defendant. 32 10 Wall. 327-339 Notes on U. S. Eeports. . 498 Distinguished in Parks Co. v. City of Decatur, 138 Fed. 554, municipal corporation is not suable by attachment in courts of an- other state. Syl. 4 (VII, 320). Jurisdiction over person, how obtained. Approved in Metropolitan Rubber Co. v. Place, 147 Fed. 94, decree in suit for dissolution of corporation barring all claims not presented does not conclude nonresident creditor not personally served from suing corporation on claim. Syl. 5 (VII, 322). Levy of attachment requisite to action in rem. Approved in Coyle Mercantile Co. v. Nix, 7 Okl. 270, 54 Pac. 470, affidavit on attachment omitting amount of debt, being amendable, lien of writ issued thereon is prior to that of junior attachment levied before amendment; dissenting opinion in Dye v. Crary, 12 N. M. 478, 479, 480, 78 Pac. 536, 537, majority holding property levied on under alias writ of attachment gives no jurisdiction over such property. Distinguished in Dye v. Crary, 12 N. M. 473, 78 Pac. 534, property levied on under alias writ of attachment gives no jurisdiction over such property. 10 Wall. 327-334, 19 L. 935, JOXES v. ANDEEWS. Syl. 1 (VII, 326). Citizenship appearing from bill. Approved in Sun Printing etc. Assn. v. Edwards, 194 U. S. 383, 48 L. 1030. 24 Sup. Ct. 696, averment that plaintiff is resident of certain state regarded by appellate court as averment of citizenship, where evidence shows legal domicile therein. Syl. 3 (VII, 327). Waiver of jurisdiction by motion to dismiss. Approved in Wetzel etc. Ey. Co. v. Tennis Bros. Co., 145 Fed. 464, where in action by foreign corporation defendant demurred and an- swered, he cannot plead in abatement that plaintiff cannot sue because he has failed to comply with state laws. Syl. 4 (VII, 327). Citizenship in ancillary proceedings. Approved in O'Connor v. O'Connor, 146 Fed. 997, federal equity suit to set aside dismissal of law action being ancillary to action, service on defendants in bill who were parties to action may be made on them though they reside outside of district; Hatcher v. Hendrie etc. Supply Co., 133 Fed. 270, 68 C. C. A. 19, equity suit to enforce attachment lien obtained in former action in same court to subject attached property to judgment is maintainable irrespective of citizen- ship. 10 Wall. 334-339, 19 L. 946, THE FAEEAGUT. Syl. 1 (VII, 329). Collision — Absence of lookout. Approved in The Pocomoke, 150 Fed. 197, 198, small launch having only navigator as lookout is not negligent. 499 Notes on U. S. Reports. 10 Wall. 339-363 10 Wall. 339-363, 19 L. 955, MAEBLE CO. v. EIPLEY. Syl. 1 (VII, 330). Restraining violation of copartner's rights. Distinguished in Lord v. Hull, 178 N. Y. 19, 102 Am. St. Rep. 484, 70 N. E; 73, denying right of action by one partner for accounting against another where no dissolution is sought. Syl. 5 (VII, 331). Specific performance discretionary. Approved in Sharp v. West, 150 Fed. 461, denying specific perform- ance of contract for sale of land after three years' unexplained delay; Jones V. Byrne, 149 Fed. 401, refusing specific performance of contract for purchase of land where there was violation of trust by attorney; dissenting opinion in Stewart v. Wright, 147 Fed. 346, majority per- mitting recovery by one who was given double cross in known fake footrace. Syl. 6 (VII, 331). Specific performance — Subsequently developed hardship. Approved in Brewster v. Lanyon Zinc Co., 140 Fed. 806, upholding oil and gas lease in consideration of $1. Syl. 9 (VII, 332). Specific performance of option contract. Approved in Brewster v. Lanyon Zinc Co., 140 Fed. 812, constru- ing oil lease with reference to forfeiture clauses; Ormsby v. Graham, 123 Iowa, 209, 98 N. W. 727, where purchaser knew at time of con- tract that vendors had no title and coupled with tender of price a demand for good marketable title, he cannot compel specific per- formance by delivery of such title; Harlow v. Oregonian Pub. Co., 45 Or. 530, 78 Pac. 740, refusing specific performance of newspaper carrier route at instance of carrier. Distinguished in Kentucky Distilleries etc. Co. v. Blanton, 149 Fed. 42, enforcing contract by assignee for creditors of insolvent cor- poration for sale of its realty, though he agreed to get directors to resign 'so that purchaser could elect his own board. Syl. 10 (VII, 333). Specific performance — Contract imposing con- tinuous duties. Approved in General Elec. Co. v. Westinghouse Elec. & Mfg. Co., 144 Fed. 462, refusing specific performance of fifteen year contract, whereby complainant was to make and sell to defendant certain goods which defendant was to sell to exclusion of all others; Taussig v. Corbin, 142 Fed. 666, denying specific performance of contract giving exclusive right to sell patented goods in certain territory, sale of which he agreed to push; Western Union Tel. Co. v. Penn- sylvania Co., 129 Fed. 869, 870, 64 C. C. A, 285, 68 L. R. A, 968, decreeing specific performance of contract between railroad and tele- graph line for construction and operation of telegraph line along right of way; Marks v. Gates, 2 Alaska, 527, 530, refusing specific 10 Wall. 367-395 Notes on U. S. Keports. 500 performance of contract to convey all properties which promisor may acquire in Alaska. 30 Wall. 367-383, 19 L. 948, EAILROAD CO v. TRIMBLE. Syl. 4 (VII, 335). Parol inadmissible where writing clear. Approved in Delaware Securities Co. v. Metropolitan Trust Co., 146 Fed. 607, construing trust agreement pledging stocks as secur- ity for bondholders, reserving grantor's right to vote stock, with reference to right to require proxy from grantee. 10 Wall. 383-395, 19 L. 987, BARNARD v. KELLOGG. Syl. 2 (VII, 337). Usage to explain clear contract. Approved in Moore v. United States, 196 U. S. 166, 49 L. 433, 25 Sup. Ct. 202, custom at San Francisco requiring consignee to des- ignate berth for discharge of cargo does not control contract for de- livery of coal "on wharf as customary" at Honolulu; Harding v. Cargo etc. of Coal, 147 Fed. 975, provision in charter-party for carry- ing coal that "vessel to have turn in loading" does not make cus- tom of port to prefer steamers part of contract where it was not known to parties; Kentucky Vermillion etc. Co. v. Norwick etc. Ins. Co., 146 Fed. 699, refusing parol evidence of meaning of term "watch- man's clause" in insurance policy; The Mary N. Bourke, 135 Fed. 897, where it was custom of shipyard to add arbitrary per cent to net measurement of timber used in repairing vessels, for wastage, contract for repairs to vessel presumed made with reference to cus- tom, in absence of contrary evidence; Lillard v. Kentucky Dist. etc. Co., 134 Fed. 173, 175, 182, 67 C. C. A. 74, custom of contractors for sale of feeding slop to deliver at feeding lot supplied with cattle- pens and troughs; Clark v. Allaman, 71 Kan. 232, 80 Pac. 580, hold- ing custom does not prevail over statute with reference to acqui- sition of water rights for irrigation; Pennsylvania etc. R. R. Co. v. Naive, 112 Tenn. 257, 79 S. W. 128, 64 L. R. A. 443, where it is general custom at place of consignment not to give notice of ar- rival of or deliver freight on Fourth of July, it is not negligence for carrier to fail to give notice or make delivery on that day: McSherry V. Blanehfield, 68 Kan. 312, 75 Pac. 122, refusing evidence of custom ©f elevator-men as to disputed items. Syl. 3 (VII, 337). Custom to defeat plain intent — Caveat emptor. Approved ia Kell v. Trenchard, 142 Fed. 21, caveat emptor does not apply in case of actual fraud; Troy Grocery Co. v. Potter, 139 Ala. 368, 369, 36 So. 15, in an action for fish sold, plea setting up improper packing so that they spoiled held not to support conclusion of warranty. See 102 Am, St. Rep. 611, note. 501 Notes on U. S. Reports. 10 Wall. 395-415 10 Wall. 395-109, 19 L. 937, UNITED STATES v. HODSON. Syl. 1 (VII, 339). Eecovery on bond not conformable to statute. Approved in State v. Paxton, 65 Neb. 123, 90 N. W. 988, where official bond is filed and afterward new sureties added, new con- sideration required for new sureties; Jones v. Seaboard etc. Ry. Co., 67 S. C. 194, 45 S. E. 192, where railroad obstructed flow of freshet waters in navigjable stream by negligent construction of bridge, owner of land bordering on stream injured by obstruction may re- cover therefor. Syl. 2 (VII, 340). Disregard of illegal conditions in bond. Approved in Probate Court of Central Falls v. Adams, 27 R. T. 99, 60 Atl. 770, bond of executor, who is also residuary legatee, prop- erly conditioned, as required by statute, to pay debts and legacies, not invalidated because it requires executor to account. Syl. 4 (VII, 340). Voluntary bond — Estoppel to show constraint. Approved in Utermehle v. Norment, 197 U. S. 56, 49 L. 602. 25 Sup. Ct. 291, ignorance of rule that one taking benefits under will cannot assert its invalidity does not prevent application of rule; United States Fidelity etc. Co. v. United States, 150 Fed. 553, that Indian agent's bond contained provisions not required by statute does not affect its validity where its conditions were not in violation of law, and it was entered into voluntarily; Smith v. United States, 5 Ariz. 64, 45 Pac. 344, bond of receiver of public moneys increased by direction of president above statutory amount is not void; Terri- tory v. Cooper, 11 Okl. 707, 69 Pac. 816, applying rule where one secured release on bail and in action on bail bond alleged inapplica- bility of statute permitting bail. Syl. 6 (VII, 341). Laws to enforce collection of revenue not penal. Approved in State v. Western Union Tel. Co., 96 Minn. 19, 104 N. W. 570, construiug statutes for taxation of tangible and intan- gible propert}- of telegraph companies as a system. 10 Wall. 410-415, 19 L. 972, DUCAT v. CHICAGO. Syl. 1 (VII, 341). Corporations not citizens — Equal protection. Approved in In re Estate of Speed, 216 III. 29, 108 Am. St. Rep. 189, 74 N. E. 811, holding act of May 10, 1901, exempting religious bequests from transfer taxes, does not apply to legatee, which was foreign corporation; Prewitt v. Security etc. Ins. Co., 119 Ky. 327, 83 S. W. 612, upholding Ky. St. 1903, § 631, providing for revocation of license of foreign insurance company removing suit to federal court; Humphreys v. State, 70 Ohio St. 86, 101 Am. St. Rep. 888, 70 N. E. 962, 65 L. R. A. 776, charitable societies organized under laws of other states are subject to collateral inheritance tax under Eev. St., § 2331; dissenting opiuion in Security etc. Ins. Co. v. Prcw- 10 Wall. 416-436 Notes on U. S. Eeports. 502 itt, 202 IT. S. 261, 50 L. 1020, 26 Sup. Ct. 619, majority upholding Kentucky statute providing for revocation of license of foreign in- surance company removing suit to federal court; Metropolitan Life Ins. Co. v. Board of Assessors, 115 La. 706, 39 So. 849, arguendo. Syl. 3 (VII, 343). Commerce — License tax on foreign corporations. Approved in Pisher v. Traders' Mut. Life Ins. Co., 136 N. C. 223. 48 S. E. 669, upholding Pub. Laws 1901, p. 66, relating to service of process on agent of foreign corporations; Standard Oil Co. v. Com-, monwealtb etc., 104 Va. 685, 52 S. E. 390, construing Va. Code 1904, p. 2214, imposing license fee on foreign transportation companies. 10 Wall. 416-418, 19 L. 953, MASTEESON v. HEENDON. Syl. 1 (VII, 344). Appeal by one defendant alone. Approved in Port v. Schloss Bros. & Co., 149 Fed. 732, where two partners are jointly sued on firm debt, and judgment entered against both, Sne alone cannot maintain writ of error without severance. 10 Wall. 419, 420, 19 L. 963, THE MABEY. Syl. 1 (VII, 345). Admiralty — Additional testimony on appeal. Approved in The San Eafael, 141 Ped. 280, where exceptions to libel against vessel and its owner were sustained for misjoinder, libel may be amended so as to declare against vessel alone. 10 Wall. 421-423, 19 L. 973, CAMPBELL v. WILCOX. Syl. 1 (VII, 346). Failure to stamp note — Fraudulent intent. Approved in Baunihoff v. Oklahoma City etc. Co., 14 Okl. 138, 77 Pac. 42, complainant in action on contract need not allege instrument was stamped as required by Comp. St. 1901, p. 2300. 10 Wall. 423-427, 19 L. 954, UNITED STATES v. VIGIL. Syl. 2 (VII, 347). Nunc pro tunc entry of appeal. Distinguished in Gagnon v. United States, 193 U. S. 456, 48 L. 747, 24 Sup. Ct. 510, judgment of naturalization which has never been recorded cannot be entered nunc pro tunc thirty-three years after its rendition, where no entry appeared on records at time orig- inal judgment is supposed to have been rendered. 10 Wall. 427-436, 19 L. 947, TAPPAN v. BEAEDSLEY. ' Syl. 1 (VII, 347). Depositions in another action. Approved in In re Alphin etc. Cotton Co., 131 Fed. 827, testimony of one not member of bankrupt corporation, taken generally under Bankr. Act, c. 541, § 21a, and not directed to any defined issue, is not admissible in subsequent proceedings against corporation's offi- cers to compel surrender of property of estate. 503 Notes on U. S. Reports, 10 Wall. 454-507 ]0 Wall. 454-4G3, 19 L. 9G9, THE CLINTON BRIDGE. Syl. 1 (VII, 347). Bridge over navigable stream as post road. Approved in United States v. Union Bridge Co., 143 Fed. 386, up- holding Comp. St. 1901, p. 3345, requiring alteration of bridges on determination by Secretary of War that they do or will obstruct navigable waters; State v. Van Huse, 120 Wis. 21, 97 N. W. 505, Laws 1903, p. 234, c. 160, legalizing attempted organization of school district is not void as retroacting on pending controversy. (VII, 347.) Miscellaneous. Cited in United States v. Cincinnati etc. R. Co., 134 Fed. 357, 67 C. C. A. 335, construing word "bridge" in 25 Stat. 74. 10 Wall. 483-497, 19 L. 992, IN RE PASCHAL. Syl. 1 (VII, 350). Attorney's lien on client's papers. Approved in Nodine v. Hannum, 1 Alaska, 303, following rule; State v. District Court, 30 Mont. 110, 75 Pac. 962, contempt pro- ceedings for violation of injunction restraining trespasses on mining property cannot be resorted to for purpose of determining title to veins. 10 Wall. 497-507 19 L. 984, YATES v. MILWAUKEE. Syl. 1 (VII, 352). Riparian owner's right of access to wharf. Approved in United States v. Roth, 2 Alaska, 262, 263, where land abuts on waters of navigable stream, homesteader has exclusive right to use and occupation of shore between high and low water, as against trespasser; Sutter v. Heckman, 1 Alaska, 88, owner of upland has no proprietorship in tide lands immediately in front of his property; Richards v. New York etc. R. Co., 77 Conn. 505, 60 Atl. 297, 69 L. R. A. 929, determining amount of damages for im- pairment of right of access of riparian owner by construction of railroad; Thousand Island Steamboat Co. v. Visger, 179 N. Y. 210, 71 N. E. 764, grant of lands under navigable waters upon which riparian owner had erected docks for purpose of promoting commerce gave no exclusive right to use of dock; Matheny v. Aiken, 68 S. C. 177, 47 S. E. 61, private persons whose property outside city is damaged by sewage emptying into stream cannot abate nuisance, but are limited to statutory remedy for compensation; Taylor v. Common- wealth, 102 Va. 771, 102 Am. St, Rep. 865, 47 S. E. 880, title to bed of navigable river between low-water mark and line of naviga- bility is in state, who may lease same. Syl. 2 (VII, 354). Riparian rights are vested. Approved in Sutter v. Heckman, 1 Alaska, 192, owner of uplands bordering on sea cannot be deprived of littoral rights in fronting tide flats without compensation; San Francisco Savings Union v. R. G. li. Petroleum etc. Co., 144 CaL 137, 103 Am. St. Rep. 72, 77 10 Wall. 519-537 Notes on U. S. Eeports. 504 Pac. 824, 66 L. E. A. 242, erection of obstructions below high-water mark in front of land of littoral proprietor whose lands abut on ocean may be abated by proprietor whose access to ocean is pre- vented thereby; Crawford Co v. Hathaway, 67 Neb. 335, 108 Am. St. Eep. 654, 93 N. W. 784, riparian owner whose property rights are impaired by appropriation of water is entitled to compensation; Lathrop v. Eacine, 119 Wis. 473, 97 N. W. 196, holding void Eacine charter provisions for erection of docks at cost of waterfront owners as not providing for special benefits accruing to land owners. Syl. 5 (VII, 356). Eiparian rights not destroyed by statutes. Approved in Hume v. Laurel Hill Cemetery, 142 Fed. 565, refusing to enjoin burials in cemetery which is not nuisance, though ordinance prohibits burials in county; Small v. Harrington, 10 Idaho, 521, 79 Pac. 468, refusing to enjoin construction of log boom in navigable stream; Frostburg v. Winelaud, 98 Md. 244, 103 Am. St. Eep. 399, 56 Atl. 812, 64 L. E. A. 627, holding shade trees in street not per se a nuisance; Bryan v. Chester, 212 Pa. St. 262, 108 Am. St. Eep. 870, 61 Atl. 895, holding void ordinance prohibiting erection of billboards on private property; Newport News S. Co. v. Jones, 105 Va. 510, 54 S. E. 316, rights of dock company previously acquired under char- ter to dredge river for shipyard, covering part area assigned for oysterbed, are prior to those of assignee. Distinguished in Helena v. Kent, 32 Mont. 289, 80 Pac. 260, up- holding city ordinance making it duty of occupant of premises to keep sidewalk free from ice and snow. Syl. 7 (VII, 358). Eestraining taking property without compensa- tion. Approved in Wheeling etc. E. E. Co. v. Town of Triadelphia, 58 W. Va. 509, 52 S. E. 508, enjoining forfeiture of street railway franchise for alleged failure to perform conditions. See 107 Am. St. Eep. 221, note. (VII, 352.) Miscellaneous. Cited in Matheny v. Aiken, 68 S. C. 177, 47 S. E. 61, city is corporate entity capable of being sued. 10 Wall. 519-537, 19 L. 1002, BEOBST v. BEOCK. Syl. 6 (VII, 362). Mortgage sale passes mortgagee's title. Approved in Chesapeake Beach Ey. Co. v. Washington etc. E. R. Co., 199 U. S. 251, 50 L. 178, 26 Sup. Ct. 25, deed from trustee in mortgage conveys whatever title he had, though it recites foreclos- ure decree; Equitable Mortgage Co. v. Gray, 68 Kan. 102, 74 Pac. 615, mortgage foreclosure purchaser is subrogated to mortgagee's rights. 505 Notes on U. S. Keports. 10 Wall. 537-566 10 Wall. 537-540, 19 L. 1007, BETHELL v. DEMAEET. Syl. 1 (VII, 363). Review of state decisions — Federal question. Approved in Chicagro etc. R. E. Co. v. Newell, 198 U. S. 579, 49 L. 1171, 25 Sup. Ct. 801, following rule; French v. Taylor, 199 U. S. 277, 50 L. 192, 26 Sup. Ct. 76, state decision that formalities required by tax laws were fully observed does not present federal question. See 97 Am. St. Rep. 720, note. 10 Wall. 541-543, 19 L. 981, EX PARTE GRAHAM. Syl. 2 (VII, 364). Review of confiscation proceedings. See 111 Am. St. Rep. 934, note. 10 Wall. 553-556, 19 L. 998, PENNSYLVANIA v. QUICKSILVER MIN. CO. Syl. 1 (VII, 365). Averment of citizenship of corporation. Approved in Knight v. Lutcher etc. Lumber Co., 136 Fed. 406, 69 C. C. A. 248, for purposes of federal jurisdiction it must be al- leged that corporation is created by laws of other state, Syl. 2 (VII, 365). Supreme court— Suit by state. Approved in Oregon v. Hitchcock, 202 U. S. 68, 50 L. 938, 26 Sup. Ct. 568, state cannot sue Secretary of Interior in supreme court to restrain allotment and patenting in severalty swamp lands in In- dian reservation. 10 Wall. 557-506, 19 L. 999, THE DANIEL BALL. Syl. 2 (VII, 365). Test of navigable waters. Approved in Minnesota Canal etc. Co. v. Koochiching Co., 97 Minn. 443, 107 N. W. 410, following rule; United States v. Wishkah Boom Co., 136 I'ed. 45, 48, 68 C. C. A. 592, river navigable for some distance by small boats is navigable, though used chiefly for floating logs; State V. Twiford, 136 N. C. 606, 48 S. E. 587, applying rule in up- holding instructions in prosecution for obstructing navigable stream. Syl. 6 (VII, 369). When interstate commerce commences. Approved in United States v. Geddes, 131 Fed. 453, 65 C. C. A. 320, holding local railroad refusing interstate traffic except under local bill of lading, by which road assumed payment of other roads' charges, not engaged in interstate commerce. Syl. 7 (VII, 369). Interstate commerce — Employment of independ- ent agencies. Approved in United States v. Geddes, 131 Fed. 454, 65 C. C. A. 320, holding local railroad refusing interstate traffic except under bill of lading, by which road assumed payment of other roads' charges, not engaged in interstate commerce. 10 Wall. 566-676 Notes on U. S. Eeports. 506 10 Wall. 566-577, 19 L. 1029, LIVERPOOL INS. CO. v. MASSACHU- SETTS. Syl. 2 (VII, 371). Equal protection — Corporation not citizen. Approved in Miller v. Ahrens, 150 Fed. 656, under West Virginia laws relating to foreign religious societies, trust created by will for benefit of foreign religious corporation, involving grant of land in West Virginia, is void; Kirven v. Virginia-Carolina Chemical Co., 145 Fed. 292, failure of foreign corporation to comply with state statute imposing conditions on right to do business in state does not make contracts void. Syl. 3 (VII, 372). Foreign corporation as corporation here. Approved in dissenting opinion in Warren v. Pim, 66 N. J. Eq. 418, 59 Atl. 797, majority holding void, voting trust in stock of local corporation claimed by foreign corporation; Metropolitan Life Ins. Co. V. Board of Assessors, 115 La. 706, 39 So. 849, arguendo. 10 Wall. 583-589, 19 L. 1036, STOVALL v. BANKS. Syl. 3 (VII, 374). Conclusiveness of decree against administrator. Approved in Conway v. Carter, 11 N. M. 433, 68 Pac. 944, and Greer v. McNeal, 11 Okl. 529, 69 Pac. 894, both following rule; United Brethren v. Akin, 45 Or. 250, 77 Pac. 748, 66 L. R. A. 654, sureties on executor's bond who executed same without knowledge of his indebtedness to testator are liable under decree of distribution for such debt which was charged against him in account as money in liis hands. 10 Wall. 589-593, 19 L. 1038. STAGG v. CONN. MUT. INS. CO. Syl. 3 (VII, 375). Insurance agents — Right to renewal premiums. Approved in Chase v. N. Y. Life Ins. Co., 188 Mass. 273, 74 N. E. 326, where insurance agency contract providing for payment of com- missions or renewals for five years, if agency continued so long, agent fired before five years not entitled to such commissions. 10 Wall. 604-676, 19 L. 1008, MERCHANTS' BANK v. STATE BANK. Syl. 1 (VII, 376). When directed verdict proper. Approved in Parks v. Southern Ry. Co., 143 Fed. 278, and Huntt V. MeNamee, 141 Fed. 294, both upholding refusal of voluntary non- suit after plaintiff had concluded his evidence and defendant's mo- tion for direction of verdict had been sustained. Syl. 4 (VII, 377). Estoppel of corporation to deny contract. Approved in Sturdevant Bros. & Co. v. Farmers' etc. Bank, 69 Neb. 240, 95 N. W. 826, holding cashier cannot obligate bank by signing replevin bond in action between third parties. 507 Notes on U. S. Eeports. 10 Wall. G76-684 Syl. 5 (VII, 379). Liability of corporation for acts of agents. Approved in Hier v. Miller, 68 Kan. 268, 75 Pac. 80, 63 L. E. A. 952, where bank cashier attempts to pay individual debts by enter- ing same upon passbook of creditor, who is depositor, so that they are checked out, bank may recover amount from creditor. Syl. 6 (VII, 380). Corporation's liability for agents' torts. Approved in Stewart v. Wright, 147 Fed. 328, applying rule where bank officials participated in conspiracy to swindle by means of fake footrace. Syl. 7 (VII, 380). Liability created by certified check. Approved in Union Trust Co. v. Preston Nat. Bank, 136 Mich. 462, 99 N. W. 399, holding certified check valid in hands of bona fide holder, though drawer had no funds in bank when certified; Johnston etc. Co. v. National Bank of Guthrie, 4 Okl. 26, 44 Pac. 195, applying rule where president of national bank entered into conspiracy to defraud third persons, and carried out fraudulent de- sign, through his relations with bank; State v. Miller, 47 Or. 566, 85 Pac. 82, applying rule in prosecution of bank cashier for drawing and certifying personal check when he had no deposits. Syl. 8 (VII, 381). When bank check due. Approved in Elliott v. Capital City State Bank, 128 Iowa, 278, 103 N. W. 778, certificate of deposit is not due and payable until actual demand is made. Syl. 9 (VII, 381). Bank check not bill of exchange. Approved in United States v. Green, 136 Fed. 645, 646, 650. bank check is not "obligation for payment of money" within Rev. St., § 5451, punishing bribery. Syl. 11 (VII, 382). Evidence of usage to explain ambiguities. Approved in Harding v. Cargo etc. of Coal, 147 Fed. 976, provision of charter to carry coal that vessel to have turn in loading does not make part of contract port custom of giving preference to steamers filling bunkers. 10 Wall. 676-684, 19 L. 1040, MARSH v. FULTON COUNTY. Syl. 3 (VII, 383). Purchaser of bonds must examine officers' acts. Approved in Green Co. v. Shortell, 116 Ky. 126, 75 S. W. 254, holding county could plead noncompliance with statute in defense to action by bona fide holder of aid bonds containing no recital as to authority of officers to issue same. Syl. 5 (VII, 386). Compelling municipality to restore loan. Approved in Luther v. Wheeler. 73 S. C. 95, 52 S. E. 878, upholding right to recover of town money received on note for erecting public building, though note was invalid. 11 Wall. 1-65 Notes on U. S. Ecports. 508 Syl. 6 (VII, 387). Eatification of illegal county bonds. Approved in Wormstead v. Lynn, 184 Mass. 428, 68 N. E. 843, where one entered into contract with official undertaking to act for city, city not estopped to deny official's authority by proof that same officer had made similar contracts which had been ratified. Syl. 7 (VH, 387). Agency — Eatification is equivalent to prior au- thority. ■ Approved in Marion Water Co. v. City of Marion, 121 Iowa, 322, 96 N. W. 888, holding city liable on hydrant rental contract. XI WALLACE. 11 Wall. 1-36, 20 L. 90, NEW ENGLAND ETC. INS. CO. v. DUN- HAM. Syl. 4 (VII, 388). Scope of admiralty jurisdiction. Approved in Erie etc. Transp. Co. v. Erie E. Co., 142 Fed. 12, upholding admiralty jurisdiction over suit to enforce contribution in favor of one of two colliding vessels against other for damages to cargo owner, paid by libelant. Syl. 6 (VII, 389). Admiralty — What are maritime contracts. Approved in North German F. Ins. Co. v. Adams, 142 Fed. 440, following rule; Bowers Hyd. D. Co. v. Federal Cont. Co., 148 Fed. 293, upholding admiralty jurisdiction over suit for hire of dredge generally used for maritime purposes, though temporarily used for land transaction in dredging stream; The Conveyor, 147 Fed. 590, where proceeds of insurance money paid to custodian to pay for raising boat, repairs and supply liens, and pay remainder to mort- gagee, and boat raised but not repaired, and sold by his claimants, contract was maritime; United States Shipping Co. v. United States, 146 Fed. 919, upholding admiralty jurisdiction over suit against United States under Comp. St. 1901, p. 752, based on maritime con- tract of affreightment. Syl. 7 (VII, 391). Marine insurance is maritime contract. Distinguished in Graham v. Oregon etc. Nav. Co., 134 Fed. 464, denying admiralty jurisdiction of suit for breach of traffic agree- ment between railroad and steamship company. 11 Wall. 39-65, 20 L. 67, VIEGINIA v. WEST VIEGINIA. Syl. 1 (VII, 392). Supreme court's original jurisdiction in boun- daries. Cited in State v. Faudre, 54 W. Va. 125, 133, 102 Am. St. Eep. 927, 46 S. E. 270, 274, 63 L. E. A. 877, arguendo. . 609 Notes on U. S. Reports. 11 Wall. 88-112 11 Wall. 88-95, 20 L. 153, UNITED STATES v. TYNEN. Syl. 2 (VII, 398). Statutes — Repeals by implication. Approved in United States v. Cardish, 145 Fed. 245, construing 23 Stat.. 385, and Rev. St., § 2143, relating to arsop on reservation within state; Utter v. Franklin, 7 Ariz. 309, 64 Pac. 430, Laws 1899, Act No. 32, repealing territorial acts creating funding debt commission, is void; Pratt Institute v. City of New York, 183 N. Y. 157, 75 N. E". 1121, Laws 189G, p. 797, c. 908, § 4, subd. 7, ex- empting realty of educational institutions used exclusively for cor- porate purposes repeals special act granting tax exemption to edu- cational corporations; dissenting opinion in Lang v. United States, 133 Fed. 207, 66 C. C. A. 255, majority holding § 28 of Immigration Act of 1903 applies to prosecutions thereafter begun under old law, based on acts committed prior to its repeal. Syl. 3 (VII, 400). Repeal of statute ends jurisdiction. Approved in United States v. Sena, 12 N. M. 414, 78 Pac. 62, re- peal of Laws of 1901, p. 190, c. 99, deprived supreme court of juris- diction over criminal appeals not taken during term. 11 Wall. 96-108, 20 L. 155, CITY OF NEW ALBANY v. BURKE. Syl. 7 (VII, 403). Limitations — Means of detecting fraud. Approved in German Sav. Bank v. Des Moines Nat. Bank, 122 lown, 745, 98 N. W. 609, where bank cashier gave notes in individual capacity and as treasurer of a company to third party with bank's guaranty, and bank paid them before maturity, four years' delay by bank in suing to recover money so paid because it was represented to it that notes had been discounted in usual course was laches. 11 Wall. 108-112, 20 L. 65, DOWS v. CITY OF CHICAGO. Syl. 1 (VII, 403). Illegality of tax not ground for enjoining col- lection. Approved in Illinois Life Ins. Co. v. Newman, 141 Fed. 451, 452, refusing to enjoin collection of illegal state tax; dissenting opinion in San Francisco Nat. Bank v. Dodge, 197 U. S. 110, 111, 49 L. 686, 687, 25 Sup. Ct. 384, majority holding taxation of national bank shares at market value under Cal. Pol. Code, §§ 3608-3610, is discriminatory in view of exclusion of in^'.angible elements of value in assessing state banks. Syl. 5 (VII, 407). Effect of dismissal on cross-bill. Approved in Gilmore v. Bort, 134 Fed. 662, in suit for cancellation of bond given to indemnify corporation and its treasurer, cross-bill by treasurer setting up validity of bond and praying for roleaso on liis own bond if it is valid does not entitle treasurer to object to disiuissaJ of suit. 11 Wall. 113-135 Notes on U. S. Eeports. 610 11 WaU. 113-129, 20 L. 222, THE COLLECTOR v. DAY. Syl. 1 (VII, 407). State taxes on government instrumentalities. Approved in Mosely v. State, 115 Tenn. 59, 86 S. W. 716, interest on government bonds not taxable by states as income; dissenting opin- ion in South Carolina v. United States, 199 U. S. 468, 50 L. 272, 26 Sup. Ct. 110, majority holding government may exact revenue license from dispensing agent of state vphich has taken charge of liquor busi- ness. Limited in South Carolina v. United States, 199 U. S. 459, 50 L. 269, 26 Sup. Ct. 110, government may exact revenue license from dispensing agent of state which has taken charge of liquor business. Distinguished in Sackett v. McCaffrey, 131 Fed. 222, 65 C. C. A. 205, notary's certificate of acknowledgment of homestead declaration is sub- ject to stamp tax under War Revenue Act, § 13. Syl. 2 (VII, 408). Federal tax on state officer's salary. Approved in dissenting opinion in South Carolina v. United States, 199 U. S. 466, 50 L. 272, 26 Sup. Ct. 110, majority holding government may exact revenue license from dispensing agent of state which has taken charge of liquor business. Limited in South Carolina v. United States, 199 U. S. 453, 50 L. 266, 26 Sup. Ct. 110, government may exact revenue license from dispens- ing agents of state which has taken over liquor business. 11 Wall. 129-135, 20 L. 160, WESTERN TRANSPORTATION CO. v. DOWNER. Syl. 3 (VII, 410). Carriers — Avoidable danger presumes negligence. Approved in Cau v. Texas etc. Ry. Co., 194 U. S. 432, 48 L: 1057, 24 Sup. Ct. 663, burden of showing fire causing loss was due to negligence of carrier is on shipper where bill of lading exempts from loss by fire ; The Folmina, 143 Fed. 639, under bill of lading exempting from loss by sea water or sweating, evidence that vessel was seaworthy and cargo properly stowed, and that damage caused by seawater, shows good defense. Syl. 4 (VII, 411). Presumption of negligence from accident. Approved in Burr v. Knickerbocker etc. Towage Co., 132 Fed. 249, 65 C. C. A. 554, holding presumption of negligent towing shown where tow grounded on calm day; Rebstock v. Gilchrist Transp. Co., 132 Fed. 180, holding collision of steamer in tow of two tugs with moored vessel due to fault of rear tug in failing to properly assist steamer; The W. G. Mason, 131 Fed. 637, where steamer in tow of two tugs stranded, though she obeyed signals of leading tug, presumption is that stranding due to fault of tugs; Nashville etc. Ey. Co. v. Stone. 112 Tenn. 371, 7£ 6. W. 1036, applying rule where part of shipment of hogs dead when delivered. See 113 Am. St. Rep. 990, 992, note. 511 Notes on U. S. Keports. 11 Wall. 136-178 11 Wall. 136-139, 20 L. 101, AMY v. SUPERVISOES. Syl. 2 (VII, 413). Federal court cannot enjoin state. Approve:] in Ingraliam v. National Salt Co., 139 Fed. 690, where, pending attachment proceedings in federal court, state insolvency pro- ceedings begun and receiver took attached property and sold it, and then plaintiff recovered in federal court and marshal advertised execu- tion sale of attached property, state injunction suit against sale not en- joined. Syl. 6 (VII, 414). Honest intentions no excuse for officer. Approved in State v. McClellan, 113 Tcnn. 622, 85 S. W. 269, register of deeds is liable on bond for failure to correctly register conveyance. 11 Wall. 139-164, 20 L. 102, SMITH v. SAC COUNTY. Syl. 2 (VII, 414). Notes — Fraud as shifting burden of proof. Approved in Toledo etc. R. R. Co. v. Star etc. Mills Co., 146 Fed. 959, determining degree of proof required of railroad in action under Ohio statute making fact of fire caused by locomotive sparks prima facie negligence; Gamble v. Rural Ind. School Dist., 132 Fed. 521, one receiving school bond from jirior holder for legal services rendered to full value of bond is bona fide holder where bond not due and contained nothing on face to show illegality; Gibbs v. Farmers' etc. Rank, 123 Iowa, 742, 99 N. W. 706, in action to recover overpayments on note where indorsements show such overpayments, burden is on plaintiff throughout case; Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 134, 77 N. E. 754, applying rule in action by fireman for personal injuries received in consequence of defect in water gauge attached to his loco- motive. 11 Wall. 164-171, 20 L. 127, THE SAPPHIRE. Syl. 8 (VII, 417). Collision between anchored vessels. Approved in The City of Birmingham, 138 Fed. 559, holding dredge anchored at night near center of narrow channel liable for collision with passing steamer. 11 Wall. 172-178. 2 L. 179, SUSQUEHANNA ETC. COAL CO. v. BLATCHFORD. Syl. 1 (VII, 418). Jurisdiction — Diversity of citizenship. Approved in Sweeney v. Carter Oil Co., 199 U. S. 257, 50 L. ISO, 26 Sup. Ct. 55, two citizens of different states may sue in federal court citizen of another state; Anderson v. Bassman, 140 Fed. 11, denying federal jurisdiction over suit to enjoin diversion of. water by means of irrigation ditches, where one of defendants is citizen of same state as plaintiff. Syl. 2 (VII, 419). Diversity of citizenship of trustees. Approved in In re E. T. Kcnney ('o., 13G Fed. 455, beneficial inter- est of assignors in net proceeds of claims assigned to comuxitLce to set- 11 Wall. 193-243 Notes on U. S. Eeports. 512 tie affairs, after administering trust, are not provable in bankruptcy. Virginia etc. Power Co. v. Fisher, 104 Va. 135, 136, 51 S. E. 203, bond- holder cannot bring suit to foreclose mortgage securing railroad bonds, unless trustee refuses to do so. 11 Wall. 193-199, 20 L. 110, GENERES v. CAMPBELL. Syl. 2 (VII, 425). Seal not necessary to bill of exceptions. Distinguished in Kipp v. Burton, 29 Mont. 102, 101 Am. St. Eep. 544, 74 Pac. 87, 63 L. R. A. 325, execution issued without seal may be amended nunc pro tunc. 11 Wall. 199-203, 2 L. 134, CASE v. TERRELL. Syl. 2 (VII, 425). National bank receiver represents bank. Approved in Murphy v. Gumaer, 18 Colo. App. 190, 70 Pac. 802, where national bank had made loan to corporation in excess of legal amount, and its principal stockholder induced defendant to execute note payable to bank and others indorsed to it, unavithorized loans being released accordingly, release of claim on loans was on good considera- tion. 11 Wall. 217-238, 20 L. 50, MAY v. LE CLAIRE, Syl. 2 (VII, 429). Quitclaim deed — Bona fide purchaser. Approved in Lindblom v. Rocks, 146 Fed. 663, applying rule in eject- ment; Mosier v. Momsen, 13 Okl. 50, 74 Pac. 908, arguendo. Distinguished in Martin v. Ragsdale, 71 S. C. 77, 50 S. E. 674, fact that land conveyed by several quitclaim deeds, where last two grantors held under warranty deeds, does not affect bona fide purchaser, where inquiry under record facts would not have discovered facts relied on to defeat his title. Syl. 7 (VII, 432). Remedy of cestui on abuse of trust. Approved in Southern Pac. R. Co. v. United States, 133 Fed. 657, 66 0. C. A. 581, upholding equity jurisdiction over suit by government to ascertain wiiat portion of lands erroneously patented to railroad have been sold to bona fide purchasers and for cancellation of lands not so 'lisposed of, and for accounting. Syl. 8 (VII, 432). Specific performance — Adequacy of law remedy. Approved in Mutual Life Ins. Co. v. Blair, 130 Fed. 976, granting specific performance where life policy provided that on assured 's death settlement should be had by issuance of annuity policy. 11 Wall. 238-243, 20 L. 114, THE FANNIE. Syl. 1 (VII, 433). Collision — Steamer should avoid schooner. Approved in Brighara v. Luckenbach, 140 Fed. 333, holding tug liable for collision with steamer caused by jamming of wheel where it would not have happened if proper lookout kept; The W. G. Mason, 131 513 Notes on U. S. Keports. 11 Wall. 244-331 Fed. 635, determining liability for stranding of tow in charge of two tugs. Syl. 2 (VII, 433). Want of lookout immaterial, when. Approved in The Pocomoke, 150 Fed. 197, holding launch not liable for daytime collision for failure to have lookout other than navigator; The Fannie Hayden, 137 Fed. 283, 284, schooner at fault where only two men on deck were furling sail, though privileged vessel had no proper lookout. 11 Wall. 244-256, 20 L. 86, LEVY v. STEWART. Syl. 1 (VII, 434). Limitation statutes are of repose. Approved in Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 140 Fed. 724, conduct of insurance company inducing delay in bringing suit beyond time limit in policy for stated purpose of investigating claim suspends operation of time limit. 11 Wall. 259-268, 20 L. 80, McVEIGH v. UNITED STATES. Syl. 2 (VII, 435). Alien enemy entitled to all judicial remedies. Approved in Keele v. Keele, 118 Mo. App. 275, 94 S. W. 780, heir whose application to be heard in opposition to allowance of claim against decedent's estate may, under Rev. St. 1899, § 214, move to vacate order allowing claim; Youst v. Willis, 5 Okl. 416, 49 Pac. 1014, upholding act of 1895, providing for entry of judgment on appeal bond on motion and notice, when applied to appeal bond executed prior to passage of act; dissenting opinion in Daniels v. Homer, 139 X. C. 268, 51 S. E. 1010, 3 L. R. A. (N. S.) 997, majority upholding Acts 1905, c. 292, regulating fisheries and providing for seizure of illegal fish nets. Distinguished in Bennett v. Bennett, 16 Okl. 184, 83 Pac. 556, up- holding default divorce decree where alimony pendente lite not paid and defaulting defendant without answering asks leave to defend on merits, which leave is denied unless alimony paid. Syl. 3 (VII, 437). Alien may sue and be sued. Distinguished in Bennett v. Bennett, 16 Okl. 180, 83 Pac. 555, uphold- ing default divorce decree where defendant not answering was denied leave to defend on merits unless alimony order complied with. 11 Wall. 268-331, 20 L. 135, MILLER v. UNITED STATES. Syl. 10 (VII, 439). Effect of default in admiralty. Approved in Dowdell v. United States District Court, 139 Fed. 446, where proceedings for limitation of liability have been terminated by final decree, court cannot reopen proceedings to allow nonappearing claimants to prove claims. 33 11 Wall, 356-378 Notes on U. S. Eeports. 514 11 Wall. 356-369, 20 L. 167, THE DISTILLED SPIEITS. Syl. 4 (VII, 442). Statutes in pari materia construed together. Approved in Christie Street etc. Co. v. United States, 136 Fed. 333, 69 C. C. A. 464, action against government on claim to recover internal taxes illegally exacted, which has been presented but not approved by commissioner, is barred in two years. Syl. 6 (VII, 443). Agent's knowledge is principal's. Approved in Aetna Indemnity Co. v. Ladd, 135 Fed. 647, 68 C. C. A. 274, upholding instructions relative to presumption of authority of gen- eral agent of surety company; Modern Woodmen of America v. Colman, 68 Neb. 664, 94 N. W. 816, applying rule to knowledge of agent of mutual benevolent association. Syl. 7 (VII, 445). Presumption that agent has told principal. Approved in Dight v. Chapman, 44 Or. 278, 75 Pac. 589, 65 L. R. A. 793, knowledge of bankruptcy proceedings acquired by cashier of bank, which is bankrupt's creditor, is imputed to creditors of insolvent cor- poration, of which bankrupt is stockholder and of which cashier is re- ceiver. Syl. 8 (VII, 445). Notice to agent is notice to principal. ApproTed in American Bonding Co. v. Spokane etc. Loan Society, 130 Fed. 741, 65 C. C. A. 121, knowledge of president of loan society that secretary was, at time of indemnity policy, indebted to com- pany is not breach of warranty in policy that secretary was not so indebted; In re Pease, 129 Fed. 455, where trust company, through its attorney, who also acted for certain creditors of merchant, who was actually insolvent, loaned merchant money on borrower's stock, with which certain creditors paid in full, mortgage was void as preference under Bankr. Act, § 67e; Schollay v. Mofiit-West Drug Co., 17 Colo. App. 134, 67 Pac, 184, applying rule w-here agent of seller at time of sale to another agent was advised of latter agent's lack of au- thority to purchase. 11 Wall. 369-378, 20 L. 172, FIEST NAT. BANK v. LANIER. Syl. 6 (VII, 448), National bank shareholder selling during in- solvency. Approved in McDonald v. Dewey, 202 U. S. 520, 535, 50 L. 1132. 1139, 26 Sup. Ct. 731, stockholder in national bank, who, with knowl- edge of its insolvency, transfers shares to financially irresponsible vendee, cannot escape stockholder's liability; Third Nat. Bank v. Buffalo German Ins. Co., 193 U. S. 591, 48 L. 804, 24 Sup. Ct. 524, national bank cannot forbid transfer of its shares, without consent of directors, by stockholder while he is indebted to bank. Distinguished in Bridge v. National Bank of Troy, 185 N. Y. 150, 77 N. E, 1006, national bank acquires no equitable lien as against 515 Notes on U. S. Eeports. 11 Wall. 391-411 indebted stockholder on his distributive share of assets on liquida- tion of bank's affairs. Syl. 7 (VII, 448). Stock certificates approximate negotiable in- struments. Approved in Easton Nat. Bank v. American Brick etc. Co., 69 N. J. Eq. 335, 60 Atl. 58, bona fide transferees of stock certificates re- citing that they are fully paid up are not liable to creditors where they were ignorant that original subscribers had not paid in full. Syl. 10 (VII, 451). National banks — Stock transfers without sur- render. Approved in First Nat. Bank v. Strfbling, 16 Okl. 56, 57, 86 Pac. 517, corporate shares cannot be reissued without surrender of original certificate; dissenting opinion in Monahan v. Monahan, 77 Vt. 151, 59 Atl. 174, 70 L. R. A. 935, majority holding complainant seeking tc impress with trust securities which had been secretly obtained from him, not denied relief because securities put in defendant's name to evade taxation. 11 Wall. 391-395, 20 L. 190, SECOND NAT. BANK v. HUNT. Syl. 1 (VII, 453). Instructions cannot assume what not proven. Approved in Semet-Solway Co. v. Wilcox, 143 Fed. 840, applying rule in action for breach of contract of employment. Syl. 2 (VII, 453). Oral agreement by debtors to sell personalty. Approved in Feely v. Bryan, 55 W. Va. 588, 47 S. E. 308, where one loaned money to another on agreement that certain property was to be mortgaged to secure loan, and later borrower makes mortgage, it is not good, preference as other debts existing at date of mortgage. Syl. 4 (VII, 453). Chattel'mortgage permitting sale of goods. Distinguished in In re Burnham, 140 Fed. 929, provision of mort- gage permitting sale of mortgaged goods in usual course of business does not render it void as to after-acquired goods. 11 Wall. 395-411, 20 L. 116, MISSOURI v. KENTUCKY. Syl. 2 (VII, 454). Bouudary of Kentucky middle of Mississippi. Approved in Louisiana v. Mississippi, 202 U. S. 54, 50 L. 932, 26 Sup. Ct. 408, long acquiescence in assertion of particular boundary between states and exercise of sovereignty over territory within it is conclusive. Syl. 3 (VII, 455). State boundary once fixed — Changes in river. Approved in Missouri v. Nebraska, 196 U. S. 35, 49 L. 375, 25 Sup. Ct. 155, applying rule in determining boundary between Missouri and Nebraska; Moore v. McGuire, 142 Fed. 791, 792, 799, determining boundary between Arkansas and Mississippi, with reference to sover- 11 Wall. 411-432 Notes on U. S. Eeports. 516 eignty over island in river; Foppiano v. Speed, 113 Tenn. 173, 82 S. W. 223, one engaged In selling liquor on steamer making regular trips to port in another state is subject to tax imposed by Acts 1901, p. 214, while boat was in this state. Syl. 4 (VII, 455). Maps and books as evidence. Approved in Moore v. McGuire, 142 Fed. 793, determining bound- ary between Arkansas and Mississippi, with reference to sovereignty over island in river. 11 Wall. 411-416, 20 L. 191, THE MONTELLO. Syl. 2 (VII, 455). What is navigable water of United States. Approved in United States v. Union Bridge Co., 143 Fed. 378, Alle- gheny river is navigable waterway of the United States; State v. Twiford, 136 N. C. 606, 48 S. E. 587, upholding instructions defining navigable stream, in prosecution for obstructing same; Birch v. King, 71 N. J. L. 394, 59 Atl. 11, plea to jurisdiction averring that cause of action arose upon navigabile waters, is insufficient; Mani- gault V. Springs, 199 U. S. 478, 50 L. 277, 26 Sup. Ct. 127, arguendo. 11 Wall. 423-432, 20 L. 192, ST. LOUIS v. WIGGINS FERRY CO. Syl. 1 (VII, 457). Bill of exceptions unnecessary where speci.al findings. Approved in Webb v. National Bank of Republic, 146 Fed. 719, following rule. Syl. 3 (VII, 457). Exercise of corporate franchise extraterri- torially. Cited in Kansas City etc. Ry. Co. v. Stevenson, 135 Fed. 554, arguendo. Syl. 4 (VII, 458). Legislature decides mode and extent of taxa- tion. Approved in Union etc. Transit Co. v. Kentucky, 199 U. S. 205, 50 L. 154, 26 Sup. Ct. 36, holding void Kentucky tax on Kentucky railroad's rolling stock permanently located in other state; Flowei- ree etc. Co. v. Lewis & Clark Co., 33 Mont. 38, 81 Pac. 400, where corporation owning cattle which grazed in county where its business manager resided drove them elsewhere for feeding with intention to return them, cattle not taxable in latter county; Harrell v. Speed, 113 Tenn. 228, 106 Am. St. Rep. 814, 81 S. W. 841, one running bar on vessel belonging to Arkansas corporation and plying between Arkansas and Tennessee is liable to Tennessee license tax while running bar in Tennessee. Distinguished in Prairie Cattle Co. v. Williamson, 5 Okl. 494, 49 Pac. 939, where cattle owned in another state grazed in this state during entire year, they are taxable here though already listed in other state. 517 Notes on U. S. Eeports, 11 Wall. 438-507 Syl. 7 (VII, 458). What is home port of vessel. Approved in Aver etc. Tie Co. v. Kentucky, 202 U. S. 421, 50 L. 1087, 26 Sup. Ct. 678, rule not changed by Comp. St. 1901, p. 2831, § 21. 11 Wall. 438-442, 20 L. 197, INSUEANCE CO. v. WEIDE. Syl. 2 (VII, 460). What evidence should go to jury. Approved in Texas & P. Ey. Co. v. Coutourie, 135 Fed. 469, 68 C. C. A. 177, where destruction of cotton by fire while piled on dock was alleged to have been caused by negligent method of piling, evidence of habitual intoxication of superintendent is admissible. Syl. 4 (VII, 461). Presumption defined. Approved in Wabash E. Co. v. De Var, 141 Fed. 934, applying rule to instructions as to presumption of negligence in action for death caused by collision. 11 Wall. 459-483, 20 L. 199, GALVESTON E. E. v. COWDEEY. Syl. 10 (VII, 465). Corporation mortgage of after-acquired prop- erty — Estoppel. Approved in Pere Marquette E. E. Co. v. Graham, 136 Mich. 449, 99 N. W. 410, construing railroad mortgage covering present and after-acquired property, as covering after-acquired lot adjacent to main line. Syl. 14 (VII, 467). Mortgage covers rails put on subsequently. Approved in Missouri Pac. Ey. Co. v. Bradbury, 106 Mo. App. 458, 79 S. W. 968, where railroad granted right of way afterward aban- dons road without removing rails, they become property of owner of land. 11 Wall. 484-488, 20 L. 207, FOESYTH v. WOODS. Syl. 1 (VII, 471). Partner's joint contract not firm liability. Approved in In re Weisenberg, 131 Fed. 518, joint debts of part- ners comprising bankrupt firm are not provable against firm estate to share equally with firm creditors. Syl. 2 (VII, 471). Priority of firm debts on firm's bankruptcy. Approved in In re Weisenberg, 131 Fed. 519, 520, joint debts of partners composing bankrupt firm are not provable against firm es- tate to share equally with firm creditors. 11 Wall. 493-507, 20 L. 176, STEWAET v. KAHN. Syl. 2 (VII, 473). Omitted parts in Eevised Statutes. Approved in Succession of Dupre, 116 La. 1094, 41 So. 325, apply- ing rule in construing statutes relating to adoption; Dry den v. Pitts- 11 Wall. 508-560 Notes on U. S. Reports. 618 burg etc. Ey. Co., 208 Pa. St. 323, 57 Atl. 713, construing statutes and holding railroad in widening lines may condemn dwelling. Syl. 6 (VII, 474). Effect of Rebellion on statute of limitations. See 111 Am. St. Rep. 455, note. 11 Wall. 508-515, 20 L. 211, UNITED STATES v. WILEY. Syl. 2 (VII, 476). Statutes of limitation are of repose. Approved in Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 140 Fed. 724, conduct of insurance company inducing delay in bringing suit beyond time limit in policy, for stated purpose of investigating claim, suspends operation of time limit. Syl. 3 (VII, 476). Suspension of statute of limitations. Approved in Alice E. Min. Co. v. Blanden, 136 Fed. 255, applying principle to suit on note where maker died after maturity; Cobb v. Houston, 117 Mo. App. 653, 94 S. W. 301, statute of limitations is suspended during defendant 's nonresidence. 11 Wall. 516-560, 20 L. 33, SEYMOUR v. OSBORNE. Syl. 15 (VII, 482). Amendment of reissue patent. Approved in United States AVhip Co. v. Hassler, 134 Fed. 402, Turner reissue No. 12,058, for tension for racers of braiding machine, void as not being for same device as original. Syl. 19 (VII, 484). Patents — Construction with reference to spec- ifications. Approved in Comptograph Co. v. Universal etc. Mach. Co., 142 Fed. 543, upholding Felt patent No. 628,176, for improvement in comput- ing machine; O. H. Jewell Filter Co. v. Jackson, 140 Fed. 345, con- struing Jewell patent No. 509,126, for improvements in filtering ap- paratus; Scott V. Fisher etc. Mach. Co., 139 Fed. 145, Bellis patent No. 561,559, for improvements in knitting machines not infringed. Syl. 20 (VII, 484). Patents — New and useful improvements. Approved in United States Fastener Co. v. Meyers, 145 Fed. 537, Pringle patent No. 580,001, for separable button, limited and not infringed by device of Kerngood patent No. 645,624. Syl. 24 (VII, 485). Patent— Effect of foreign patent. Approved in Columbus Chain Co. v. Standard Chain Co., 148 Fed. 627, Carroll patent No. 620,826, for swaging device for regulating dimensions of chain links, anticipated by Swiss patent to Goerke No. 9592; Keasbey etc. Co. v. Philip Carey Mfg. Co., 139 Fed. 576, Han- more patent No. 545,843, for nonconducting cover for steam pipes not anticipated; Crown Cork etc. Co. v. Standard Stopper Co., 136 Fed. 204, 69 C. C. A. 519, Painter patents No. 468,258 and No. 582,762, for bottle-stoppers, infringed by device of Patterson patent No. 082,995; 519 Notes on U. S. Eeporta. 11 Wall. 5C0-616 Valvona v. D'Adamo, 135 Fed. 545, Valvona patent No. 701,776, for mold for biscuit cups used for holding ice-cream, not anticipated; Pettibone v. Pennsylvania Steel Co., 133 Fed. 737, Strom patent No'. 498,190, for railroad switch-stand, not anticipated. Distinguished in Wclsbach etc. Co. v. Cremo etc. Co., 145 Fed. 525. Heald patent No. 423,317, for gas-lamp appliance construed. Syl. 26 (VII, 487). Patents— Doctrine of equivalents. Approved in Cortis v. iVmerican etc. Supply Co., 145 Fed. 519, Cortis patent No. 613,648, for lamp and mantle supporting device, not infringed by device of Momand patent No. 781,613, 11 Wall. 560-566, 20 L. 214, HOLLIDAY v. HAMILTON. Syl. 1 (VII, 488). Bill of lading in consignee's name — Title. Approved in Easton v. Geo. Wostenholm & Son, 137 Fed. 532, 70 C. C. A. 108, where firm employed complainant to buy goods in England, he to advance money, title to goods passed on delivery to carrier, irrespective of time of delivery of bill of lading. 11 Wall. 581-590, 20 L. 216, LUDLOW v. EAMSEY. Syl. 1 (VII, 491). Judicial sale not collaterally attackable for errors. Approved in Heid v. Ebner, 133 Fed. 158, 66 C. C. A. 222, answer setting up title through execution sale, containing averments of judgment, execution and sale thereunder and confirmation, is good without setting out proceedings relative to execution and sale. 11 Wall. 591-609, 20 L. 220, EEED v. UNITED STATES. Syl. 1 (VII, 493). Affreightment and letting of ship distinguished. Approved in Grimberg v. Columbia Packers' Assn., 47 Or. 262, 263, 83 Or. 196, construing charter of vessel as one of affreightment merely. Syl. 3 (VII, 493). Demise of vessel — Hirer responsible for crew. Approved in Hills v. Leeds, 149 Fed. 880, construing charter for yacht for portion of year, hirer to control and pay captain as a let- ting of ship; Auten v. Bennett, 183 N. Y. 501, 76 N. E. 610, where, under charter, owner agreed to deliver vessel at certain port, and charterer was to have control of vessel, there was lease of vessel though owner paid wages. 11 Wall. 610-616, 20 L. 223, DUNPHY v. KLEINSMITII. Syl. 5 (VII, 496). Decree in suit for recovery of fraudulent con- veyance. Cited in Harrigan v. Gilchrist, 121 Wis. 252, 99 N. W. 912, arguendo. 11 Wall. 616-672 Notes on U. S. Reports. 520 Syl. 6 (VII, 496). Verdict by three-fourths of jury. Approved in Bradford v. Territory, 1 Okl. 374, 34 Pac. 68, holding void St. Okl., c, 70, art. 18, § 22, providing that nine jurors may return verdict. 11 Wall. 616-624, 20 L. 227, THE CHEROKEE TOBACCO. Syl. 8 (VH, 498). Treaty supersedes prior statute. Approved in Hijo v. United States, 194 U. S. 324, 48 L. 996, 24 Sup. Ct. 727, United States not suable under Tucker Act of 1887, on claim for value of use by army of Spanish merchant vessel captured during war. 11 Wall. 624-632, 20 L. 82, FOURTH NAT. BANK v. N. O. & CAR- ROLLTON R. R. CO. Syl. 2 (VII, 499). Partner entitled only to share in net profits. Approved in Moore v. Rawson, 185 Mass. 272, 70 N. E. 66, follow- ing rule. Syl. 6 (VII, 500). Indispensable party necessary to equity suit. Approved in United States v. Northern Pac. R. Co., 134 Fed. 719, 67 C. C. A. 269, suit by government to annul contract between cor- porations, not "within circuit court's jurisdiction, where it has not jurisdiction over one of corporations. 11 Wall. 652-659, 20 L. 235, HENDERSON'S TOBACCO. Syl. 1 (VII, 502). Statutes — Repeal by implication. Approved in United States v. Cardish, 145 Fed. 244, under 23 Stat. 385, arson may be committed on reservation, irrespective of race of defendant or of possessor of building; Christie Street Com. Co. v. United States, 136 Fed. 333, 69 C. C. A. 464, action against United States on claim to recover back internal taxes illegally collected is barred in two years; United States v. Foreman, 5 Okl. 257, 48 Pac. 98, one suing in territorial district court for recovery of money paid for land on which entry erroneously allowed and afterward canceled, nepd not show surrender of duplicate receipt or execution of relin- quishment of claims to land. 11 Wall. 659-672, 20 L. 29, COOK v. BURNLEY. Syl. 2 (VII, 504). Plea in abatement too late after answer. Approved in Wetzel etc. Ry. Co. v. Tennis Bros, Co., 145 Fed. 464, following rule. XII WALLACE. 12 Wall. 1-18, 20 L. 272, THE COLLECTOR v. HUBBARD. Syl. 9 (VII, 507). Recovery of taxes illegally collected. Approved in Kahn v. Herold, 147 Fed. 580, where, at time executors paid internal revenue inheritance tax on life estate under protest, they did not know life tenant had died, payment was not volun- tary. 12 Wall. 47-65, 20 L. 265, PHILADELPHIA ETC. RAILROAD CO. v. DUBOIS. Syl. 4 (VII, 511). Infringement — Fraud in procuring patent no de- fense. Approved in Eastern etc. Bag Co. v. Continental etc. Bag Co., 142 Fed. 511, upholding Liddell patent No. 588,969, for paper-bag ma- chine. 12 Wall. 65-86, 20 L. 354, BALTIMORE & O. R. R. CO. v. HARRIS. Syl. 1 (VII, 511). Chartering foreign corporation is mere license. Approved in Baltimore etc. R. R. Co. v. Allen, 58 W, Va. 398, 112 Am. St. Rep. 985, 52 S. E. 469, 3 L. R. A. (N. S.) 608, applying prin- ciple in garnishment proceedings; Kansas City etc. Ry. Co. v. Steven- son, 135 Fed. 554, arguendo. S}'1. 3 (VII, 513). Consent of foreign corporation to suit. Approved in Kibbler v. St. Louis etc. R. Co., 147 Fed. 881, for- ' eign corporation which, under state laws, can be sued in state courts only in counties where it does business, cannot be sued in federal court unless it does business in county within district; Old Wayne etc. Life Assn. v. McDonough, 164 Ind. 328, 73 N. E. 706, upholding Pennsylvania statute requiring foreign insurance companies to desig- nate insurance commissioner or other agent for service of process; Groll V. United Elec. Co., 69 N. J. Eq. 412, 414, 60 Atl. 828, determining that foreign corporation was doing business in state. Syl. 6 (VII, 518). Domestication of foreign corporation. Approved in Russell v. St. Louis etc. Ry. Co., 71 Ark. 454, 457, 75 S. W. 727, 728, foreign corporation complying with Acts 1889, p. 43, c. 34, became domestic corporation with power of eminent domain. Syl. 7 (VII, 519). Service of process on corporation. Approved in Sidway v. Missouri Land etc. Co., 187 Mo. 673, 86 S. W. 156, where foreign cor^joration was licensed to do business in [521] 12 Wall. 86-159 Notes on U. S. Reports. 522 Missouri and there maintained office and process agent, it was not nonresident witMn statute of limitations. Syl. 8 (VII, 519). Exercise of functions by foreign corporations. Approved in Old Wayne etc. Life Assn. v. McDonough, 164 Ind. 326, 327, 73 N. E. 705, upholding Pennsylvania statute requiring foreign insurance companies to designate insurance commissioner or other agent for service of process. Syl. 10 (VII, 520). Plea in bar waives plea in abatement. Approved in McFadden v. Heisen, 150 Fed. 570, agreement to dis- miss pending suit made out of court is waived by answering on merits amended bill filed thereafter. 12 Wall. 86-102, 20 L. 270, FRENCH v. SHOEMAKER. Syl. 1 (VII, 520). When decree final and appealable. Approved in Stout v. Stout, 104 Va. 484, 51 S. E. 834, decree in suit to construe will striking cause from docket with leave to re- instate it and seek proper relief at foot of decree is final. 12 Wall. 130-136, 20 L. 249, NEW ORLEANS ETC. MAIL CO. v. FLANDERS. Syl. 1 (VII, 524). Appellant alone can claim reversal. Approved in Field v. Barber Asphalt Paving Co., 194 U. S. 621, 48 L. 1153, 24 Sup. Ct. 784, cross-appeal to review only nonfederal questions decided against defendant may be taken directly to su- preme court, where circuit court's jurisdiction invoked because of constitutional grounds and of diverse citizenship. ■12 Wall. 150-159, 20 L. 262, BAKER v. MORTON. Syl. 5 (VII, 526). Duress sufficient to invalidate contract. Approved in Burnes v. Burnes, 132 Fed. 493, where surviving part- ner threatened to administer estate as survivor unless corporation formed and stock divided between heirs, there was no duress; First Nat. Bank v. Sargent, 65 Neb. 601, 91 N. W. 597, 59 L. R. A. 296, upholding instruction defining duress. Syl. 7 (VII, 526). Judgment lien constitutes no right in land levied. Distinguished in Lewis v. Atherton, 5 Okl. 94, 47 Pac. 1072, un- der Stat. 1893, c. 21, § 13, judgment against parties who had been seised of realty, and in whom title still appears of record, becomes lien on property though debtors had previously executed deed to third party. 523 Notes on U. S. Ecports. 12 Wall. 167-193 12 Wall. 167-173, 20 L. 382, THE STEAMER SYEACUSE. Syl. 1 (VII, 527). Collision caused by towboat's negligence. Approved in The Oceanica, 144 Fed. 305, following rule; The W. G. Mason, 142 Fed. 91?, where two tugs belonging to same owner were towing steamer under contract with such owner, and master of leader directed ship's movements, rear tug, whose movements controlled by own master, not liable in rem for stranding of tow through fault of leader; Cotton v. Almy, 141 Fed. 362, where lessees of houseboat at termination of lease undertook to deliver it at port other, than named in lease at owner's request, they are liable fcfr negligent towing; Winslow V. Thompson, 134 Fed. 449, 550, 551, 67 C. C. A. 363, hold- ing acts of tugs in attempting to pull grounded vessel over bar neg- ligence for which consignee who employed them was liable. Syl. 2 (VII, 528). Towboat must use care and skill. Approved in The Britannia, 148 Fed. 499, holding tug liable for loss of scows where it had but one hawser which parted three times; The Naos, 144 Fed. 296, where charterer employed tug to tow ves- sel and detained tow until full tide, both charterer and tug liable for grounding of tow. Syl. 3 (VII, 528). Collision avoidable by timely precaution. Approved in The Inca, 130 Fed. 42, holding tug liable for ground- ing of tug on known obstruction where he did not warn bark which was badly steered. Syl. 6 (VII, 529). No technical variance in admiralty. Approved in The Minnetonka, 146 Fed. 515, upholding power of ad- miralty court in libel for value of jewelry stolen by employee of ship, to permit amendment of libel to conform to proof as to value. 12 Wall. 181-193, 20 L. 366, HOFFMAN v. BANK OF MILWAU- KEE. Syl. 5 (VII, 531). Innocent holder of draft accompanied by bill of lading. Approved in Bank of Indian Territory v. First Nat. Bank, 109 Mo. App. 672, 83 S. W. 538, payment of draft by drawee cannot be avoided by him by showing he was mistaken in supposing he had money in his hands to pay it. Syl. 7 (VII, 531), Drafts — Failure of consideration — Eemote par- ties. Approved in Morrison v. Farmers' etc. Bank, 9 Okl. 700, 60 Pac. 274, where bank purchased draft from drawer before maturity and gave drawer credit on deposit account for face of draft, it is pur- chaser for value unless it is shown that amount of deposit had not been paid prior to acceptance of draft. See 105 Am. St. Eep. 359, note. 12 Wall. 194-254 Notes on U. S. Keports. 524 12 Wall. 194-201, 20 L. 378, HOWAKD ETC. IXS. CO. v. NORWICH ETC. TRANSP. CO. Syl. 6 (VII, 533). Insurance — Proximate and remote cause. Approved in Ellyson v. International etc. E. E. Co., 33 Tex. Civ. 5, 75 S. W. 870, where evidence showed intestinal trouble was prom- inent efficient cause of death, and that injuries only slightly con- tributed to it, error to charge that jury might consider injuries as cause of death, if they, in part, operating concurrently with disease, brought about result. 12 Wall. 204-226, 20 L. 370, STATE TONNAGE TAX CASES. Syl. 12 (VII, 536). Tax on steamers as tonnage tax. Approved in Way v. New Jersey S. B. Co., 133 Fed. 192, holding void Laws N. Y. 1897, p. 701, providing for payment of wharfage at Albany based on tonnage of ship. 12 Wall. 226-232, 20 L. 385, JUNCTION E. E. CO. v. BANK OF ASHLAND. Syl. 4 (VII, 537). Judicial notice of state laws. See 113 Am. St. Eep. 874, note. Syl. 10 (VII, 538). Payment of bonds guaranteed by third party as sale. Approved in Weed v. Gainesville etc. R. E. Co., 119 Ga. 591, 46 S. E. 894, defense of usury is not good as against bona fide purchaser of corporate bonds. 12 Wall. 232-246, 20 L. 360, UNITED STATES v. CHILD. Syl. 1 (VII, 538). Claims — Receipt of amount of partial allow- ance. Approved in County Commrs. v. Seawell, 3 Okl. 287, 41 Pac. 594 applying rule to claim against county. See 100 Am. St. Rep. 431, note. Svl. 2 (VII, 539). Compromise of controverted claim — Duress. Approved in Earle v. Berry, 27 R. I. 231, 61 Atl. 675, applying rule to compromise of stock transaction. 12 Wall. 246-254, 20 L. 388, UNITED STATES v. BURNS. Syl. 6 (VII, 540). Patents — Illegal use by government. Approved in dissenting opinion in International Postal Supply Co. V. Bruce, 194 U. S. 608, 48 L. 1138, 24 Sup. Ct. 820, majority hold- ing patentee of improvements in stamp-canceling machine cannot enjoin postmaster from using infringing machine of which govern- ment is lessee. 525 Notes on U. S. Reports. 12 Wall. 259-285 Syl. 9 (VII, 540). Court of claims— Rules of pleading. Approved in District of Columbia v. Barnes, 197 U. S. 154, 49 L. 702, 25 Sup. Ct. 401, following rule. 12 Wall. 259-261, 20 L. 392, GERMAIN v. MASON. Syl. 2 (Vir, 541). Appeal by one codefendant alone. Approved in Amadeo v. Northern Assur. Co., 201 U. S. 201, 50 L. 72G, 2G Sup. Ct. 507, death of insured after judgment for defend- ant in action on policy, where insured originally named as sole plain- tiff, not ground for dismissal of writ of error where insured had «iO interest in action and caption of declaration had been amended t<, show assignment; Grunbcrg v. United States, 145 Fed. 84, arguendo. 12 Wall. 2G2-275, 20 L. 423, HANNIBAL R. R. CO. v. SWIFT. Syl. 8 (VIT, 543). Baggage — Liability for other property. Approved in New Orleans etc. R. R. Co. v. Shackelford, 87 Miss. 615, 61G, 40 So. 428, carrier is liable for loss of sample case checked as baggage with knowledge of its character; Trouser v. Seaboard Air Line Rv., 139 N. C. 384, 51 S. E. 973, holding carrier liable for dam- age to drummer's samples carried as baggage, though no extra charges paid. See 99 Am. St. Eep. 355, note. Syl. 10 (VII, 544). What baggage must be carried. Approved in Clioctaw etc. R. R. Co. v. Zwirtz, 13 Okl. 41S, 73 Pac. 943, carrier need not carry articles intended for business use, as baggage. See 99 Am. St. Rep. 347, note. Syl. 11 (VII, 544). Surgeon's instruments as baggage. Approved in Yazoo etc. Railroad Co. v. Baldwin. 113 Tenn. 213, 81 S. W. G02, female's clothing, ornaments, bankbook and contents and zither key, carried in trunk, constitute baggage, though household goods are not. See 99 Am. St. Rep. 350, note. 12 Wall. 275-285, 20 L. 395, KEARNEY v. CASE. Syl. 3 (VII, 545). Bill of exceptions necessary to review facts. Approved in Fitzgerald v. Bassford, 142 Fed. 134, where action at law tried without jury and no special findings made, assignment that court erred in rendering judgment in favor of plaintiff presents no reviewable question. Syl. 5 (VII, 545). Issues of fact triable by jury. Approved in Swift v. Jones, 145 Fed. 493, circuit judge has no power, even with consent of parties, to order trial of issues in ac- tion at law before special master authorized to hear and pass on facts and report findings to court. 12 Wall. 285-342 Notes on U. S. Reports. 526 12 Wall. 285-304, 20 L. 398, MILLER v. LIFE INSURANCE CO. Syl. 2 (VII, 547). Findings may be general or special. Approved in Anglo-American etc. Co. v. Lombard, 132 Fed. 734, 68 C. C. A. 89, determining suiSciency of special finding of court in ac- tion at law. Syl. 5 (Vn, 548), No review of general finding without excep- tions. Approved in West v. Houston Oil Co., 136 Fed. 350, 69 C. C. A. 169, applying rule in trespass to try title. Syl. 9 (VII, 548). Presumption of credit from delivery of policy. See 107 Am. St. Rep. 136, note. Syl. 10 (VU, 549). Insurance — Credit by agent as payment. Approved in Mutual Life Ins. Co. v. Abbey, 76 Ark. 331, 88 S. W. 951, upholding recovery where general agent accepted premium notes in lieu of cash, though notes not paid; Aetna Life Ins. Co. v. Fal- low, 110 Tenn. 732, 733, 77 S. W. 940, where insured had been in- structed by general agent not to pay premiums until collector called, and he ffaid collector, but general agent did not transmit premium to company until after accident, company liable; Virginia Fire etc. Ins. Co. v. Richmond Mica Co., 102 Va. 437, 102 Am. St. Rep. 846, 46 S. E. 466, where agent, with knowledge of contract to sell prem- ises and that vendee was in possession, renewed policy, company estopped to assert forfeiture though policy provided that only cer- tain officers could waive provisions. Distinguished in Pennsylvania Casualty Co. v. Bacon, 133 Fed. 909, 67 C. C. A. 497, where deceased accepted accident policy providing that it was not to be effective unless premium paid prior to acci- dent, and waivers must be signed by officers, and insurer did not charge premiums to agents until actually received, subagent could not, by accepting note for premium, waive conditions. 12 Wall. 304-307, 20 L. 405, AVERY v. UNITED STATES. Syl. 4 (VII, 550). Audita querela where opportunity to defend. Cited in King v. Davis, 137 Fed. 235, arguendo. 12 Wall. 323-342, 20 L. 406, VILLA v. RODRIGUEZ. Syl. 4 (VII, 552). Quitclaim deed — Bona fide purchaser. Approved in Lindblom v. Rocks, 146 Fed. 663, where, in ejectment to recover lot on public domain, court instructed as to other defenses, instruction that defendant had burden of establishing plaintiff's abandonment set up as defense does not withdraw other defenses. Syl. 5 (VII, 552). Sale of redemption to mortgagee — Good faith. Approved in Hursev v. Hursey, 56 W. V:i. 157. 49 S. E. 370, ap- plying principle where deed intended to be mortgage was contended 527 Notes on U. S. Eeports. 12 "Wall. 342-358 to have, by subsequent agreement, changed to deed absolute; dissent- ing opinion in Staart v. Hauser, 9 Idaho, 77, 72 Pac. 727, majority- holding in equity suit by grantor to have deed declared mortgage, findings against grantor not disturbed where evidence conflicts. Syl. 6 (VII, 553). Sale of redemption — Confidential relations. Approved in Liskey v, Snyder, 56 W. Va. 623, 49 S. E. 520, follow- ing rule. 12 Wall. 342-349, 20 L. 439, HANAUER v. DOANE. Syl. 7 (VII, 554). Recovery of money lent for illegal purpose. Approved in McKinnon v. Watcrbury, 136 Fed. 491, fact that lender caused note and mortgage taken for loan to be made payable to alien in order to escape taxation, cannot be set up as defense to fore- closure; Merchants' etc. Bank v. Ohio Valley etc. Co., 57 W. Va. 632, 50 S. E. 882, 70 L. R. A. 312, applying principle where bank discounting negotiable paper knew person from whom it took it was mere agent. Distinguished in Schirm v. Wieman, 103 Md. 544, 63 Atl. 1057, where defendant agreed to pay for return of stolen watch and gave check to plaintiff, who indorsed it and cashed it at bank other than drawer and obtained watch with proceeds and gave it to defendant, who stopped check, which plaintiff made good on indorsement, con- tract to pay was valid. 12 Wall. 349-358, 20 L. 453, THOMAS v. CITY OF RICHMOND. Syl. 4 (VII, 556). Rescission of illegal contract before execu- tion. Approved in dissenting opinion in Stewart v. Wright, 147 Fed. 340, majority permitting recovery by participant in fake footrace where he was given double cross. Syl. 5 (VII, 556). Recovery under executed illegal contract. Approved in Haniman v. Northern Securities Co., 197 U. S. 296, 49 L. 763, 25 Sup. Ct. 493, original stockholders in two competing interstate railroads cannot reclaim specific shares they delivered to holding company in exchange for its stock pursuant to illegal com- bination; Padilla v. Padilla, 11 N. M. 547, 70 Pac. 504, where brother recovered judgment on Indian depredation claim for property jointly owned with sister, sister maj^ recover share of proceeds from him where he had, before judgment, agreed to pay her; dissenting opinion in Stewart v. Wright, 147 Fed. 343, majority permitting recovery by participant in fake footrace where he was double crossed. Syl. 7 (VII, 556). Parties in pari delicto unrelievable. Approved in dissenting opinion in Stewart v. Wright, 147 Fed. 339, 347, majority permitting participant in fake footrace swindle to re- cover money where he was given double cross. 12 Wall. 358-443 Notes on U. S. Eeports. 528 Syl. 9 (VII, 556). Eecovery of money paid for illegal city biiiS. Distinguished in Stewart v. Wright, 147 Fed. 336,'*permitting partici- pant in fake footrace swindle to recover money where he was given double cross. 12 Wall. 358-362, 20 L. 430, SMITH v. SHEELEY. Syl. 3 (VII, 559). Estoppel of vendor of land to corporation. Approved in Iowa etc. Min. Co. v. United States etc. Co., 146 Fed. 440, defendant sued by foreign corporation on contract made with it cannot defend because corporation has not complied with laws re- lating to such corporations; Southern Trust etc. Co. v. Yeatman, 130 Fed. 800, where, on organization, corporation received stock in an- other corporation in payment for its stock and received dividends thereon for two years, it is for jury to say whether stockholders had ratified transaction; State v. American Book Co., 69 Kan. 10, 13, 76 Pac. 414, 415, 1 L. E. A. (N. S.) 1041, contracts with foreign cor- poration before it has obtained statutory permission to do business in state are not voidable at suit of one of contracting parties. 12 Wall. 362-365, 20 L. 434, UNITED STATES v. NEW ORLEANS E. E. Syl. 3 (VII, 560). Mortgage of after-acquired property. Approved in Cummings v. Consolidated etc. Water Co., 27 E. I. 204, 61 Atl. 356, where mortgage provided that mortgagor should not suffer mechanic's lien on property which might be held prior to mortgage, and that after-acquired property might be mortgaged for improvements, mechanic's lien for improvents on after-acquired realty had priority. See 109 Am. St. Eep. 513, note. 12 Wall. 379-384, 20 L. 414, KNOX v. EXCHANGE BANK. Syl. 4 (VII, 564). Impairment of contracts — Assignment for creditors. Cited in State ex rel. Louisiana Imp. Co. v. Board of Assessors, 111 La. 1001, 36 So. 98, arguendo. 12 Wall. 418-433, 20 L. 449, WAED v. MAEYLAND. (VII, 569.) Miscellaneous. Cited in State v. Weber, 96 Minn. 431, 105 N. W. 493, upholding state constitutional provision limiting right of suffrage as respects naturalized citizens to those admitted three months prior to election. 12 Wall. 440-443, 20 L. 429, WALKEE v. DEEVILLE. Syl. 3 (VII, 576). Equity decrees reviewable by appeal. Approved in Bessette v. W. B. Conkey Co., ,194 U. S. 338, 48 L. 1006, 24 Sup. Ct. 665, writ of error and not appeal is mode of re- viewing federal order finding one not party to suit guilty of con- tempt in violating restraining order. 529 Notes on U. S. Reports. 12 Wall. 443-700 Syl. 4 (VII, 577). Foreclosure decree reviewable by appeal. Approved in Behn v. Campbell, 200 U. S. 611, 50 L. 619, 26 Sup. Ct. 753, following rule. 12 Wall. 443-445, 20 L. 438, SCOTT v. UNITED STATES. Syl. 2 (VII, 577). Contracts — Situation of parties. Approved in dissenting opinion in Atlas Red. Co. v. New Zealand Ins. Co., 138 Fed. 513, majority refusing parol evidence to show agents knew of encumbrance, where policy indorsed "loss payable to A" as his interest may appear. 12 Wall. 457-681, 20 L. 287, THE LEGAL TENDER CASES. Syl. 2 (VII, 580). Statutes presumed constitutional. Approved in Board of Commrs. v. Tollman, 145 Feu. 767, uphold- ing Laws N. C. 1885, p. 439, c. 233, incorporating railroad and au- thorizing issuance of county aid bonds; Ex parte Anderson, 46 Tex. Cr. 380, 81 S. W. 976, city court has no jurisdiction to try one for vio- lation of state penal statute. Syl. 5 (VII, 580). Power as aid to execution of power. Approved in Ex parte Riggins, 134 Fed. 410, upholding indictment for conspiracy under Rev. St., §§ 5508, 5509, for lynching negro charged with crime to prevent Ms trial. 12 Wall. 681-686, 20 L. 436, BRONSON v. CHAPPELL. Syl. 3 (VII, 584). Ratification of agent's acts by conduct. Approved in City Bank v. Thorp. 78 Conn. 217, 61 Atl. 430, where complainant permitted assigned claims to be paid to assignor before payment of loans for which assignment made, payment is good defense to claims. 12 Wall. 687-700, 20 L. 460, TREBILCOCK v. WILSON. Syl. 2 (VII, 586). Specie means coined dollars. Approved in San Juan v. St. John's Gas Co., 195 U. S. 520, 49 L. 304, 25 Sup. Ct. 108, determining medium of payment on contract for light- ing Porto Rico street lamps. 34 XIII WALLACE. 13 Wall. 1-3, 20 L. 556, BETHEL v. MATHEWS. Syl. 1 (VII, 589). Appellant cannot complain of favorable errors. Approved in Pearce v. Albright, 12 N. M. 209, 76 Pac. 287, appellant cannot complain because court did not pass on appellee's demurrer and motion to strike out. 13 Wall. 3-6, ?0 L. 556, NORWICH ETC. TRANSP. CO. v. FLINT. Syl. 1 (VII, 589). Shipping — Statements of officers as res gestae. Approved in Northern Commercial Co. v. Nestor", 138 Fed. 386, where officers of ship permitted passengers to discharge firearms on board in reckless manner, owner is liable to passenger injured. 13 Wall. 17-25, 20 L. 527, BOYDEN v. UNITED STATES. Syl. 1 (VII, 591). Public officer insurer of moneys. Approved in Poole v. Burnet County, 97 Tex. 84, 76 S. W. 427, county treasurer liable on bond for loss of funds wliich he bad deposited in bank which turned out to be insolvent. 13 Wall. 40-51, 20 L. 481, TOOF v. MARTIN. Syl. 2 (VII, 596). Insolvency defined. Approved in Suffel v. McCartney Nat. Bank, 127 Wis. 214, 106 N. W. 839, preferential payment by one subsequently becoming bankrupt is not recoverable by his trustee merely because creditor knew of facts caus- ing doubt as to debtor's solvency. Distinguished in Hussey v. Richardson etc. Co., 148 Fed. 600, where creditor had sold bankrupt goods and sent attorney to look after claim, and on being told that debtor was solvent and doing good business, took .chattel mortgage on stock, and debtor became bankrupt, mortgage not preference; Hardy v. Gray, 144 Fed. 925, determining that preference made where insolvent returned goods to creditor in payment of debt. Syl. 4 (VII, 598). Bankruptcy — Transfer by debtor as preference. Approved in In re Moody, 134 Fed. 632, where merchant sold entire stock to local firm, receiving in return farm which was taken in wife 's name, and purchasers paid debt to liank of which they were stockholders, transfer was void, under Bankr. Act, § 67e; Crandall v. Coats, 133 Fed. y69, where sureties on obligations of bankrupt obtained transfer of prop- erty from him in consideration of payment of debts which they had secured, and they executed new obligations to creditors, conveyance was [530] 531 Notes on U. S. Eeports. 13 Wall. 31-72 preference; Eex Buggy Co. v. Hearick, 132 Fed. 311, 65 C. C. A. 676, insolvent merchant who, within four months of involuntary bankruptcy, pays certain creditors in full and refuses others, commits act of bank- ruptcy within Bankr. Act, § 3a, cl. 2. Syl. 6 (VII, 601). Bankruptcy — Transfer by insolvent creditor as preference. Approved in Keegan v. Hamilton Nat. Bank, 163 Ind. 226, 71 N. E. 651, where corporation's directors borrowed money which was used by company, and thereafter, when it was insolvent, paid debt with money borrowed on individual notes, there was no preference ; Jackmann v. Eau Claire Nat. Bank, 125 Wis. 486, 104 N. W. 105, giving of chattel mort- gage, within time limited, by bankrupt to creditor to secure claim con- stitutes preference where undue advantage over other creditors is there- by obtained. (VII, 596.) Miscellaneous. Cited in Goldberg v. Harlan, 33 Ind. App. 475, 67 N. E. 711, demand unnecessary before action by bank- ruptcy trustee to recover property unlawfully transferred by bankrupt. 13 Wall. 51-56, 20 L. 531, WHEELER v. HARRIS. Syl. 1 (VII, 601). Affirmance without specifying sum not final. Approved in Northern Pac. Ry. Co. v. Ely, 197 U. S. 3, 49 L. 640, 25 Sup. Ct. 302, writ of error to state court which incorrectly states date of judgment below may be dismissed without prejudice to second writ correctly giving date. 13 Wall. 66-68, 20 L. 484, RICE v. HOUSTON. Syl. 1 (VII, 604). Citizenship — Suit by administrator. Approved in Wiemer v. Louisville Water Co., 130 Fed. 245, fact that complainant moved to another state to acquire right to sue in federal court does not defeat jurisdiction if there was bona fide intention to ac- ([uire new citizenship. 13 Wall. 68-72, 20 L. 513, CURTIS v. WHITNEY. Syl. 2 (VII, 606). Statute impairing contracts. Approved in Knoxville Water Co. v. Knoxville, 200 U. S. 36, 50 L. ed. 3G0, 26 Sup. Ct. 224, establishment of municipal waterworks does not impair obligation of agreement by city to give exclusive franchise for thirty years; Boggs v. Ganeard, 148 Cal. 721, 84 Pac. 199, upholding Stat. 1903, p. 67, amending Pol. Code, § 3443, and providing additional method of contesting right to purchase public land, as applied to ap- plication made and certificate issued prior to act; Atwood v. Buckingham, 78 Conn. 427, 62 Atl. 618, upholding Pub. Acts 1905, p. 413, relating to amount recoverable in actions pending to recover against adminis- trator for failure to file inventory; Miners' etc. Bank v. Snyder, 100 Md. 65, 108 Am. St. Rep. 390, 59 Atl. 708, 68 L. R. A. 312, upholding 13 Wall. 72-91 Notes on U. S. Eeports. 532 Acts 1904, p. 597, substituting remedy by bill in equity in behalf of all creditors against all stockholders, as applied to one who has sued in- dividually under old law but has not obtained judgment; Eauen v. Pru- dential Ins. Co., 129 Iowa, 731, 106 N. W. 200, arguendo. Syl. 3 (VII, 606). Eetroactive laws — Notice of tax sale. Approved in Lamb v. Powder Eiv. etc. Co., 132 Fed. 438, 67 L. E. A. 558, 65 C. C. A. 570, Colo. Sess. Laws 1895, p. 239, changing limitation of actions on foreign judgments is void as to foreign judgment rendered prior to its passage; Harrison v. Thomas, 103 Va. 335, 49 S. E. 486, under Acts 1901, p. 779, four months' notice required therein to be given by purchaser at tax sale need not be given where two years for redemp- tion expired before act took effect. 13 Wall. 72-91, 20 L. 485, JOHNSON v. TOWSLEY. Syl. 3 (VII, 608). Land officer's action conclusive. Approved in Miller v. Margerie, 149 Fed. 697, under Comp. St. 1901, p. 1467, deed of Alaska towusite trustee not set aside for fraud, unless particular facts which prevented complainants from having notice of proceedings and opportunity to protect rights; Peyton v. Desmond, 129 Fed. 9, 63 C. C. A. 651, homestead patentee may recover value of tim- ber wrongfully cut from land between initiation of claim and issuance of patent; Semer v. Auditor General, 133 Mich. 574, 95 N. W. 734, where lands bid off to state for taxes without application to redeem and town board requested examination by proper officers, who filed stat- utory report, laud owner cannot object to report; Cagle v. Dunham, 14 Okl. 615, 78 Pac. 562, refusing to set aside decision of Land Department on allegation of perjury by witnesses at trial before department; Okla- homa City V. Hill, 6 Okl. 129, 50 Pac. 247, under act opening Oklahoma, one entering lot for townsite purpose in violation of act, who is unlaw- fully dispossessed by city authorities, cannot claim damages for tres- pass; Barnes v. Newton, 5 Okl. 431, 48 Pac. 192, enjoining unsuccessful claimant before Land Department from interfering with occupation of disputed premises; Calhoun v. Violet, 4 Okl. 325, 47 Pac. 481, applying rule in suit to declare holder of legal title of homestead a trustee for benefit of claimant of superior equitable title; Woodruff v. Wallace, 3 Okl. 361, 378, 41 Pac. 359, 365, one whose homestead entry has been canceled for fraud in its inception cannot avail himself of occupying claimant's act, and district court may enjoin him from interfering with successful applicant; Laramie Nat. Bank v. Steinhoff, 11 Wyo. 308, 71 Pac. 994, where no patent issued, court in action by possessor undey certificate of purchase against entryman, cannot determine title. Syl. 4 (VII, 613). Equity jurisdiction to correct mistakes in patents. Approved in Paine v. Foster, 9 Okl. 223, 53 Pac. 112, following rule; Southern Cross etc. Co. v. Sexton, 147 Cal. 762, 82 Pac. 424, where, by mistake of Land Department, notice to adverse claimants of applica- tion for mining patent did not contain sufficient description, but cer- 533 Notes on U. S. Reports. 13 Wall. 72-91 tificate of purchase ii5sued, and long after republication order made, or- der canceling certificate as of date of republication order was erroneous. Limited in dissenting opinion in Paine v. Foster, 9 Okl. 274, 60 Pac. 29, majority following rule. Syl. 5 (VII, 613). Decision of land receiver — Vested rights. Approved in Bockfinger v. Foster, 10 Okl. 502, 62 Pac. 803, townsite trustees are not trustees for use of one claiming adversely to trust created by act of Congress under which patent was issued to them. Syl. 6 (VII, 614). Equitable trustee — Mistake in passing of title. Approved in Smith v. Townsend, 1 Okl. 122, 29 Pac. 82, and Adams T. Couch, 1 Okl. 39, 26 Pac. 1016, both following rule; Humbird v. Avery, 195 U. S. 503, 49 L. 297, 25 Sup. Ct. 123, refusing, prior to final action of Land Department, to determine rights of grantee of railroad of land claimed within indemnity limits and purchasers from government; Jones v. Hoover, 144 Fed. 220, under 23 Stat. 340, and 32 Stat. 730, relating to Umatilla Indian lands, purchaser of one hundred and sixty acres untimbcred land under first act could not buy under second; Tegarden v. Le Marchel, 129 Fed. 488, in ejectment in federal court equitable title cannot be set up to defeat legal title by impeach- ing government patent; Johnson v. Pacific Coast S. S. Co., 2 Alaska, 238, upholding jurisdiction to set aside townsite patent; Thompson v. Ferry, 6 Ariz. 306, 56 Pac. 743, holding parties barred by laches to claim trust; Love v. Flahive, 33 Mont. 354, 83 Pac. 883, where applications for home- stead entry on same land were filed simultaneously, finding of Secretary of Interior that applicant who had preserved right to land intact since should be preferred over other who had abandoned right was proper; McDonald v. Tnion Pac. By. Co., 70 Keb. 350, 97 N. W. 441, denying jurisdiction to compel conveyance of lands subject to homestead entry to one who has been denied privilege of entry by land department; Wilbourne v. Baldwin, 5 Okl. 280, 47 Pac. 1050, refusing to enjoin Indian agent from removing homestead applicant from land; Brown V. Parker, 2 Okl. 266, 39 Pac. 569, filing certificates issued by probate judge prior to entry have no legal force; dissenting opinion in Sproat v. Durland, 2 Okl. 52, 35 Pac. 888, majority holding court may, on answer and cross-complaint, enjoin homestead claimant from interfering with adversary's possession; Laramie Xat. Bank v. Steinhoff, 11 Wyo. 306, 310, 71 Pac. 994, 995. where no patent has issued, court, in action by possessor under certificate of purchase against entryman, cannot determine title. Distinguished in Watt v. Amos. 14 Okl. ISO, 79 Pac. 109, declaring holder of legal title a trustee though no fraud shown. Syl. 7 (VII, 618). Land officer's decision final — Equitable relief. Approved in Hartwell v. Ha\ighorst, 196 V. S. 635, 49 L. 629, 25 Sup. Ct. 793, Estes v. Timmons, 12 Okl. 540, 544, 73 Pac. 304, 3U5, 13 W.Jl. 92-104 Notes on U. S. Keports. 534 and Adams v. Coucli, 1 Okl. 34, 35, 40, 26 Pac. 1015, 1017, all following rule; Kerns v. Lee, 142 Fed. 988, applying principle under swamp land act of 1850; Le Marchel v. Tecgarden, 133 Fed. 827, one attacking land patent must plead and prove evidence before Land Department from which mistake resulted, particular mistake made, and how it oc- curred; Smith V. Love, 49 Fla. 239, 38 So. 379, applying rule where fraud alleged; Cook v. McGord, 9 Okl. 209, 60 Pac. 500, applying rule to finding of Land Department that lot had been abandoned by claimant; Black v. Jackson, 6 Okl. 754, 52 Pac. 407, where Land Department makes final award of adverse claims, loser cannot continue residence on land to bring suit to declare trust against adversary ; Cummings v. McDermid, 4 Okl. 280, 44 Pac. 278, applying rule where award of townsite trustees attacked; King v. Thompson, 3 Okl. 647, 39 Pac. 467, applying principle to acts of townsite trustees; dissenting opinion in Paine v. Foster, 9 Okl. 261, 60 Pac. 25, majority following rule. 13 Wall. 92-104, 20 L. 534, GIBSON v. CHOUTEAU. Syl. 1 (VII, 624). Limitations against state. Approved in Hagerman v. Territory, 11 N. M. 160, 66 Pac. 526, action in name of territory for delinquent taxes which are property of county in which they are assessed is not barred by limitations. See 101 Am. St. Rep. 151, 152, 153, 165, 182, note. Syl. 3 (VII, 627). State statutes cannot impair patent. Approved in Tegarden v. Le Marchel, 129 Fed. 488, 490, following rule; Tyee Consol. Min. Co. v. Langstedt, 136 Fed. 127, 69 C. C. A. 548, there is no disseisin sufficient to start limitations as against locator of mining claim prior to issuance of patent; Peyton v. Desmond, 129 Fed. 10, 63 C. C. A. 651, homestead patentee may recover value of tim- ber wrongfully cut after initiation of claims and prior to issuance of patent; Cook v. McCord, 13 Okl. 510, 75 Pac. 295, unsuccessful contestant for townsite lot, who, pending contest, made improvements thereon, cannot hold possession until improvements paid for under state occupying claimant 's land. Syl. 4 (YII, 628). Equity— Doctrine of relation. Approved in Peyton v. Desmond, 129 Fed. 11, 63 C. C. A. 651, home- steader may recover value of timber wrongfully cut after initiation of claim and prior to issuance of patent; Krakow v. Wille, 125 Wis. 288, 103 N. W. 1123, where contract for sale of land provides for de- livery of deed after certain portion of jniee paid, title vests as of date of contract. Distinguished in Tyee Consol. Min. Co. v. Langstedt, 1 Alaska, 443, 445, 447, ten year statute of limitations begins to run in favor of ad- verse possessor of part of mining claim from time of location. 535 Notes on U. S. Reports. 13 Wall. 104-128 Syl. 5 (VIT, 628). Title to public land commences when. Approved in United States v. Detroit Timber etc. Co., 200 U. S. 335, 50 L. 505, 26 Sup. Ct. 282, applying rule to purchaser of timber land from patentees for value and without notice of fraud on part of original entrymen; United States v. Anderson, 194 U. S. 399, 48 L. 1039, 24 Sup. Ct. 716, government cannot, as against its grantees of land within indemnity limits of railroad grant, retain sum col- lected from trespassers for removal of stone between selection and ap- proval of selection. Syl. 6 (VII, 629). Doctrine of relation— Public lands. Approved in Peyton v. Desmond, 129 Fed. 11, 63 C. C. A. 651, home- steader may recover value of timber wrongfully cut after initiation of claim and prior to issuance of patent; Gilbert v. McDonald, 94 Minn. 291, 110 Am. St. Rep. 370, 102 N. W. 713, interest of assignee of soldier's additional homestead certificate, upon filing of application for specific tract, may be transferred by quitclaim. Syl. 7 (VII, 631). Ejectment — Legal title necessary. Approved in Tegarden v. Le Marchel, 129 Fed. 488, following rule. Syl. 8 (VII, 631). Patent passes government title — Superior equities. Approved in Tyee Consol. Min. Co. v. Langstedt, 136 Fed. 126, 69 C. C. A. 548, there is no disseisin sufficient to start limitations as against locator of mining claim prior to issuance of patent; Tegarden v. Le Marchel, 129 Fed. 489, 491, defendant in ejectment cannot recover for Improvements made before patent issued to plaintiff; Smith v. Love, 49 Fla. 239, 38 So. 379, upholding jurisdiction to convert holder of legal title into trustee for true owner where patent should have gone to another. Distinguished in Blunier v. Iowa E. E. Land Co.. 129 Iowa. 38, 105 N. W. 344, as against railroad entitled to land under grant limitations run in favor of timber-culture occupant from time of latter 's entry under receiver 's certificate. Syl. 11 (VII, 632). Occupation for statutory period — Public lands. Approved in Tegarden v. Le Marchel, 129 Fed. 491, defendant in ejectment cannot recover for improvements made before jiatent issued to plaintifi:; Slaght v. Northern Pac. Ry. Co., 39 Wash. 582. 81 Pac. 1064, limitations do not run against settler on government land till patent issues. Distinguished in Tyee Consol. Min. Co. v. Langstedt, 1 Alaska, 4G4, mining locator acquires present vested estate in claim which he may defend by ejectment. 13 Wall. 104-128, 20 L. 585, NORWICH ETC. TRANSP. CO. v. WRIGHT. Syl. 2 (VII, 633). Ship owner's liability for master's neglisjenee. Aj>proved in The W. G. Mason, 142 Fed. 919, where two tugs be- longing to same owner were towing ship, rear tug, which did not 13 Wall. 128-165 Notes on U. S. Eeports. 536 control tow, was not liable in rem for stranding of tow through fault of leader; The Sacramento, 131 Fed. 374, where petition in admiralty to limit liability of vessel and cargo for collision failed to state facts, by reason of which exemption claimed, it was insuffi- cient to permit contest of question of vessel 's fault. Syl. 2 (VII, 633). Ship owner's limitation of liability. Approved ia The Lotta, 150 Fed. 221, where there was only one claim- ant against vessel for negligent death, owner could set up limited lia- bility as defense in state court; Hagan v. City of Eiehmond, 104 Va. 733, 52 S. E. 389, 3 L. E. A. (N. S.) 1120, holding void city ordinance declaring harbor commissioners shall remove wrecks injurious to harbor at owner's expense. 13 Wall. 128-150, 20 L. 519, UNITED STATES v. KLEIN. Syl. 3 (VII, 639). Pardon blots out offense. See 111 Am. St. Eep. 109, note. 13 Wall. 154-156, 20 L. 614, AEMSTEONG v. UNITED STATES. Syl. 2 (VII, 641). Judicial notice of executive proclamation. Approved in Sprinkle v. United States, 141 Fed. 820, in prosecution of violation of internal revenue laws, rules and regulations of Internal Eevenue Department are admissible. 13 Wall. 158-162, 20 L. 490, SEMMES v. HAETFOED INS. CO. Syl. 2 (VII, 642). Insurance — Limitation as to suit — Impossibility of performance. Approved in Lynchburg etc. Mill Co. v. Travelers' Ins. Co., 149 Fed. 957, where insured in employer's liability policy participated in nego- tiations for settlement for three months after expiration of time limit in policy, contract limitation was absolutely waived. Distinguished in Lynchburg etc. Co. v. Travelers' Ins. Co., 140 Fed. 721, 723, where insurer negotiated for settlement after expiration of contract limitation, such limitation not absolutely waived but merely suspended. 13 Wall. 162-165, 20 L. 566, EEICHE v. SMYTHE. Syl. 2 (VII, 644). Statutory construction. Approved in State v. Eldredge, 27 Utah, 488, 76 Pac. 341, con- struing proviso in Const., art. 13, § 11, that board of equalization shall ' ' also perform such other duties as may be prescribed by law. ' ' Syl. 3 (VII, 644). Statutes — Construction of words. Approved in United States v. Boden, 133 Fed. 840, canned pineapples containing sugar for flavoring only are liable for lower rate provided for by par. 263 of Act of 1897; Brennan v. United States, 129 Fed, 537 Notes on U. S. Eeports. 13 Wall. 16<5-222 838, pickled limes are dutiable under par. 266 of Tariff Act of 1897, and not free under par. 559. 13 Wall. 166-182, 20 L. 557, PUMPELLY v. GREEN BAY ETC. CANAL CO. Syl. 2 (VII, 646). Eminent domain — Right to compensation. Approved in dissenting opinion in Chicago etc. Ry. Co. v. Illinois, 200 U. S. 598, 50 L. 611, 26 Sup. Ct. 341, majority holding imposition on railroad of entire cost of removing and rebuilding of bridge made necessary by widening of channel by autl^orized officials not a "taking." Syl. 3 (VII, 647). Eminent domain— W^hat is "taking." Approved in Barron v. Memphis, 113 Tenn. 92, 106 Am. St. Rep. 810, 80 S. W. 833, where city enlarged bridge pier and thereby diverted current S9 that water overflowed land and eroded it, there was a "tak- ing"; Town of Nahaut v. United States, 136 Fed. 285, 69 L. R. A. 723, 70 C. C. A. 641, arguendo. Syl. 4 (VII, 648). Eminent domain — Flooding land as taking. Approved in Manigault v. Springs, 199 U. S. 484, 50 L. 280, 26 Sup. Ct. 127, flooding of lands consequent on erection of dam under statu- tory authority is not "taking" where flooding can be prevented by rais- ing height of dikes; Wright v. Austin, 143 Cal. 242, 101 Am. St. Rep. 97, 76 Pac. 1025, 65 L. R. A. 649, county cannot bore wells in highway and use subterranean water for sprinkling it; Baltimore etc. R. R. Co. V. Sattler, 100 Md. 329, 59 Atl. 658, owner of property injured by smoke and vibration of passing trains may recover without proof of negligence by railroad; Matheny v. Aiken, 68 S. C. 177, 47 S. E. Gl, owner of land outside city whose property is damaged by sewage emptying into stream is limited to statutory action for compensation, and cannot sue city to abate nuisance; Stockdale v. Rio Grande etc. Ry. Co., 28 Utah, 212, 77 Pac. 852, applying rule where switch-track erected on adjoining lands caused loss and inconvenience; Tracewell V. Wood County Court, 58 W. Va. 290, 52 S. E. 188, where municipal corporation by drainage ditch made along road collects surface water and casts it on land, it is liable for damage caused thereby; Lathrop V. Racine, 119 Wis. 473, 97 N. W. 196, Racine charter provisions requir- ing land owners along river to build docks void as not providing for determination of special benefits. See 109 Am. St. Rep. 905, 906, 916, note. (VII, 645). Miscellaneous. Cited in Matheny v. Aiken, 68 S. C. 174, 47 S. E. 60, fifth amendment is limitation on federal and not state government. 13 Wall. 190-222, 20 L. 550, PENNSYLVANIA COLLEGE CASES. Syl. 5 (VII, 657). Amendment of corporate franchises. Approved in State v. U. S. Grant University, 115 Tenn. 247, 249, 250, 90 S. W. 297, where educational institution transferred all its 13 Wall. 222-236 Notes on U. S. Reports. 538 property and corporate franchises to charitable society to transfer prop- erty to new corporation, and then ceased to perform its functions, its trustee cannot sue in its behalf. 13 Wall. 222-236, 20 L. 617, INSURANCE CO. v. WILKINSON. Syl. 2 (VII, 658). .Insurance — Disclosure of injuries. Approved in Rupert v. Supreme Court tJ. O. F., 94 Minn. 298, 102 N. W. 717, when questions to insurance applicant are in such terms as to include trivial ailments unconnected with any specific disease, they refer only to ailments affecting risk. Syl. 4 (VII, 658). Reformation of instruments for mistake by parol. Approved in Lyon v. United Moderns, 148 Cal. 476, 83 Pac. 807, where insured in good faith made truthful answers to questions in ap- plication, but answers were not correctly transcribed by mec]ical ex- aminer, insurer could not assert falsity of answers as defense; Far- mers' etc. Ins. Co. v. Jackman, 35 Ind. App. 18, 73 N. E. 736, where at time of policy insured owned property in fee but later conveyed it to son, retaining life interest, and officers said no change in policy necessary, condition as to character of title waived. Limited in Connecticut Fire Ins. Co. v. Buchanan, 141 Fed. 891, 892, refusing parol evidence of statements of agent as to necessity for obtaining vacancy permit where policy provided for cancellation if premises became vacant. Syl. 5 (VII, 661). Estoppel by conduct. Approved in Frels v. Lillie Black F. M. Ins. Co., 120 Wis. 598. 98 N. W. 524, where insurer ordered payment of loss in ninety days and in ten days was informed that policy held by assignee, and they notified latter that garnishment proceedings were pending, insurer estopped to set up contract limitation where garnishment proceedings dismissed after expiration of limit. Limited in Dimick v. Metropolitan Life Ir.s. Co., 69 N. J. L. 399, 55 Atl. 297, 62 L. R. A. 774, untrue answers entered by medical examiner and signed by applicant render policy void where answers are war- ranties under contract. Syl. 6 (VII, 662). Powers of insurance agent. Approved in American Tel. etc. Co. v. Green, 164 Ind. 357, 73 N. E. 709, applving rule where agent arranged consideration for release of claims for damages; Cullinan v. Bowker, 180 N. Y. 97, 72 N. E. 912, where clerk of agent authorized to execute liquor law bonds for his company issued bond, certificate for which had been forfeited, and later agent, in ignorance of forfeiture, signed bond, company not liable; Starr v. Mutual Life Ins. Co., 41 W^ash. 233, 83 Pac. 118, where solicitor executed receipt to apidicant making insurance in force from date of receipt if application accepted and policy issued, insurer es- 539 Notes on U. S. Reports. 13 Wall. 236-243 topped to deny agent's authority; Medley v. German etc. Tns. Co., 55 W. Ya. 349, 350, 47 S. E. 104, applying rule where title of fee to property M'as not in insured. Syl. 7 (VII, 6G3). Insurance — Declarations and acts of local agent. Approved in State Mut. Ins. Co. v. Latourette, 71 Ark. 247, 100 Am. St. Rep. 63, 74 S. W. 302, where local agent, who forwards applica- tions, receives policies an'd accepts premiums, is informed by applicant, prior to delivery of policy, that title is in another, delivery waives condition requiring title to be in insured; Nute v. Hartford Fire Ins. Co., 309 Mo. App. 596, 83 S. W. 86, where applicant correctly informed agent of state of title, insurer cannot defeat recovery because policy misstated title; German Ins. Co. v. Shader, 68 Neb. 8, 93 N. W. 975, 60 L. R. A. 918, admitting parol evidence of waiver of conditions in policy by agent; Aetna Life Ins. Co. v. Fallow, 110 Tenn. 734, 77 S. W. 940, applying rule where agent waived provision as to payment of premium in advance. See 107 Am. St. Rep. 122, note. Distinguished in Deming Inv. Co. v. Shawnee Ins. Co., 16 Okl. 11, 83 Pac. 921, holding company not liable where agent's limited autliority was known to applicant who made false statement as to encumbrances, though condition of title known to agent. Syl. 8 (VII, 668). Insurance — Agent preparing application. Approved in Connecticut Fire Ins. Co. v. Buchanan, 141 Fed. 893, refusing parol evidence of- statements of agents as to necessity for obtaining vacancy permit where policy provided for cancellation if premises became vacant; Bushnell v. Farmers' etc. Ins. Co., 110 Mo. App. 228, 85 S. W. 103, applying rule where there were encumbrances on property not mentioned in application. 13 Wall. 236-243, 20 L. 624, EX PARTE McXEIL. Syl. 4 (VII, G73). State pilotage laws valid. Approved in Olsen v. Smith, 195 U. S. 341, 49 L. 229, 25 Sup. Ct. 52, upholding Texas pilotage laws. Syl. 7 (VII, 674). Right created by state statute — Federal courts. Approved in Mathews Slate Co. v. Mathews, 148 Fed. 493, fed- eral court has no jurisdiction over suit brought under Massachusetts statute giving courts equity jurisdiction over suit by creditor to apply in payment of debt property of debtor which cannot be at- tached at law; Barber Asphalt etc. Co. v. Morris, 132 Fed. 949, 67 L. R. A. 761, 66 C. C. A. 55, provision of city charter for appeals from allowance or rejection of claims to district court and prohibiting pay- ment of claims pending appeal does not restrict federal jurisdiction; Madisonville etc. Co. v. St. Bernard Min. Co., 130 Fed. 792, uphold- ing removability of suit for condemnation of railroad right of way by Kentucky corporation against citizen of another state; The Sue 137 Fed. 135, arguendo. 13 Wall. 244-263 Notes on U. S, Eeports. 540 Distinguished in Illinois Life Ins. Co. v. Newman, 141 Fed. 450, denying federal equity jurisdiction to enjoin collection of state tax on ground of its illegality, though such power is conferred by state statute; Anthony v. Burrow, 129 Fed, 789, denying federal equity jurisdiction to require state officer to certify nomination of certain person as candidate for Congress. 13 Wall. 244-251, 20 L. 539, BATH COUNTY v, AMY. Syl. 1 (VII, 676). Circuit court's power to issue mandamus. Approved in Ex parte Massachusetts, 197 U. S. 488, 49 L. 848, 25 Sup. Ct. 512, denying jurisdiction to issue extraordinary writs to re- strain proceedings in equity cause; Ex parte Moran, 144 Fed. 596, upholding jurisdiction of circuit court of appeals to issue habeas corpus to determine power of Oklahoma court to imprison one con- victed of capital crime; United States v. Norfolk etc. Ey. Co., 138 Fed. 851, denying mandamus to compel interstate railroad to equita- bly distribute cars according to contract; Barber Asphalt etc. Co. v. Morris, 132 Fed. 953, 67 L. K. A. 761, 66 C. C. A. 55, granting man- damus to compel circuit judge to vacate order staying proceedings pending state court appeal; Mystic Milling Co. v. Chicago etc. Ey. Co., 132 Fed. 292, denying jurisdiction of mandamus proceeding on removal; Kelly v. Grand Circle, W. O. W., 129 Fed. 831, proceeding for mandamus by motion and affidavits as authorized by Bal. (Wash.) Code, § 5765, authorizing assessment of damages on judgment for applicant, is not removable. Syl. 2 (VII, 677). Mandamus issuable by circuit court. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 952, 67 L. E. A. 761, 66 C. C. A. 55, granting mandamus to compel circuit judge to vacate order staying proceedings pending state court ap- peal. 13 Wall. 254-257, 20 L. 681, UNITED STATES v. WILDEE. Syl. 3 (VII, 679). Part payment as affecting limitations. Approved in Good v. Ehrlieh, 67 Kan. 97, 72 Pac. 546, applying rule where payment made on note. 13 Wall. 257-263, 20 L. 635, KLINGEE v. MISSOUEL Syl. 1 (VII, 680). State record showing federal question. Approved in Allen v. Arguimbau, 198 U. S. 155, 49 L. 993, 25 Sup. Ct. 662, defense, in action on note given for promise to have cigars under certain contract, that it was contemplated that cigars were to be taken from factory without complying with federal statute, raises no federal question. 541 Notea onU. S. Eeports. 13 Wall. 264-297 13 Wall. 264-268, 20 L. 568, WILMINGTON R. R. CO. v. REID. Syl. 4 (VII, 683). Taxation — Scope of exemption of corporation's property. Approved in Southwestern Tel. etc. Co. v. San Antonio, 32 Tex. Civ. 102, 73 S. W. 860, franchises of corporation exercised by it in city are property, within city's charter taxing all property. 13 Wall. 270-291, 20 L. 571, CHICAGO & N. W. RY. CO. v. WHIT- TON. Syl. 1 (VII, 686). Corporation citizen of state of creation. Approved in Lee v. Atlantic etc. R. Co., 150 Fed. 796, where Vir- ginia railroad was merged with foreign railroad and stock in lat- ter canceled for stock in former, former continued to exist as Vir- ginia corporation; Western Union Tel. Co. v, Pittsburg etc. R}^ Co., 137 Fed. 437, in federal suit for specific performance of right of way contracts with consolidated railroad comjianies, it is immate- rial that portion of property affected is outside district; Baltimore etc. R. R. Co. V. Allen, 58 W. Va. 398, 112 Am. St. Rep. 985, 52 S. E. 469, 3 L. R. A. (N. S.) 608, railroads chartered by other states but operating roads here may be proceeded against as garnishees ir- respective of situs of debts. Syl. 2 (VII, 687). Citizenship of corporation chartered by two states. Approved in United States v. Milwaukee etc. Transit Co., 142 Fed. 254, upholding sufficiency of bill to enjoin rebating where officers of corporation formed transit company which made carriage con- tracts for it and received commissions for obtaining business; Dodd V. Louisville Bridge Co., 130 Fed. 195, denying removal whore con- solidated railroad sued citizen of one of states of incorporation of one of constituent companies; Russell v. St. Louis etc. Ry. Co., 71 Ark. 457, 75 S. W. 728, foreign railroad complying with Acts 1889, p. 43, c. 34, becomes domestic and may exercise right of eminent domain. Syl. 4 (VII, 691). State statute cannot restrict federal jurisdic- tion. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 949, 67 L. R. A. 761, 66 C. C. A. 55, city charter prohibiting payment of claims pending appeal from their allowance or rejection does not af- fect federal jurisdiction. 13 Wall. 291-297, 20 L. 562, MYERS v. CROFT. Syl. 2 (VII, 697). Vendor cannot question vendee's capacity. Approved in Clark v. Sayers, 55 W. Va. 526, 47 S. E. 318, where one conveys land with general warranty, and he afterward acquires good title, acquisition inures to grantee's benefit. 13 Wall. 297-328 Notes on U. S. Eeports. 542 Syl. 3 (VII, 697), Assignment of right of pre-emption. Approved in United States v. Clark, 200 U. S. 607, 50 L. 616, 26 Sup. Ct. 340, purchaser of timber lands after issuance of receiver's final receipts is bona fide purchaser as against cancellation for frauds of entryman; McEIhaney v. McElhaney, 125 Iowa, 282, 101 N. W. 91, where, after husband contracted to give wife half of all after- acquired property, he entered timber claim, and both spouses re- sided on land till after patent issued, agreement valid as to such land; Flanagan v. Forsythe, '.) Okl. 236, 50 Pac. 155, lands entered as homestead are not exempt from liability for debts after final proof made and final or patent certificate issued; Tecumseh State Bk. v. Maddox, 4 Okl. 594, 46 Pac. 567, relinquishment of preferential right to enter on public lands and agreement to sell personalty and im- provements thereon are good consideration for assignment of moneys; dissenting opinion in Hafemann v. Gross, 199 U. S. 352, 50 L. 226, 26 Sup, Ct, 80, majority upholding contract by which pre-emptioner agreed in consideration of advances to pay sum for locating him on land and percentage of proceeds of sale made after acquiring title. Syl. 4 (VII, 699). Alienability of lands prior to patent. Approved in Adams v. Church, 193 U. S. 517, 48 L. 772, 24 Sup. Ct. 512, argument by entryman under timber culture act to convey claim to proposed partnership as soon as he should acquire title is not void. 33 Wall. 297-306, 20 L. 579, PENDLETON COUNTY v. AMY, Syl. 1 (VII, 699). Action by bearer of bonds — Denial. Approved in Berry v. Barton, 12 Old. 23G, 71 Pac. 1079, 66 L. E. A. 513, where petition in action on note recites execution to plain- tiff for valuable consideration and default in payment, answer deny- ing that plaintiff is owner and holder and alleging that he is not real party in interest states no defense, 13 Wall. 306-311, 20 L. 683, WILLIAMS v. KIRTLAND, Syl. 2 (VII, 702). Binding effect of state statutory construction. Approved in Southern Pac. Co. v. Western Pac. Ry, Co., 144 Fed. 179, determining title to Oakland waterfront, 13 Wall. 311-328, 20 L, 581, DELAWARE ETC, CANAL CO. v. CLARK. Syl. 1 (VII, 702), Protection of words used as trademark. Approved in Gruber Almanack Co. v, Swingley, 103 Md. 376, 63 Atl. 686, holding misrepresentations on book did not deprive com- plainant of right to enjoin infringement of trademark. Distinguished in Smith-Dixon Co. v. Stevens. 100 Md. 124. 50 Atl. 404, refusing to restrain sale of bags containing imitation of plain- 543 Notes on U. S. Eeports. 13 Wall. 311-328 tiff's advertisement where plaintiff had printed form of label which he had registered for another company for long time prior to filing it with Secretary of State. Syl. 2 (VII, 703). Object of trademark stated. Approved in Hygeia etc. Water Co. v. Consolidated Ice Co., 144 Fed. 141, word "Hygeia" as name for distilled water used for long time becomes trademark; Dennison Mfg. Co. v. Scharf etc. Co., 135 Fed. 628, 68 C. C. A. 2G3, series of numbers used by label-maker in catalogues and in connection with name on boxes containing labels, to designate style of label, is not trademark. Syl. 3 (VII, 704). Essence of wrong in trademark infringement. Approved in Dennison Mfg. Co. v. Scharf Tag etc. Co., 135 Fed. 634, 68 C. C. A. 263, series of numbers used by label-maker in cata- logues and in connection with name on boxes containing labels, to designate style, is not trademark; Galena etc. Oil Co. v. Fuller, 142 Fed. 1007, trademark consisting of five-pointed star with word "Galena" above, and word "Oil" below it, and letter "G" in center, not infringed by six-pointed star made of triangles and hav- ing words "Extra Star"; Scriven v. North, 134 Fed. 370, 67 C. C. A. 348, applying rule where elastic seam drawers were imitated and advertised and sold as complainant's; Woodcock v. Guy, 33 Wash. 242, 74 Pac. 360, where petition to enjoin infringement of nonrogis- tered trademark asked protection of plaintiff in exclusive use of word, but failed to charge that defendant had simulates labels, it was insufficient. Syl. 4 (VII, 705). Trademark cannot give monopoly of other's goods. Approved in Diamond Watch Co. v. Saginaw Match Co., 142 Fed. 729, manufacturer, without patent, of tipped matches, head and tip are of different colors, is not entitled to monopoly of colors. Syl. 5 (VII, 707). Trademarks — Geographical name. Approved in Buzby v. Davis, 150 Fed. 278, use of word "Ivovstonc" by one manufacturer in his trade name to palm them off as those of another is enjoinable. Distinguished in Ncsne v. Sundet, 93 Minn. 302, 101 N. W. 492, corporation enjoined from using trade name lawfully adopted prior to its incorporation by partnership engaged in like business at same place. . Syl. 6 (VII, 709). Application as truthful when used by defendant. Approved in Howe Scale Co. v. Wyckoff, 198 U. S. 140, 49 L. 9S6, 25 Sup. Ct. 609, maker of typewriters under name "Eemington" cannot enjoin Eemington and Sholes from using name "Kemington- Sholes" on machines. 13 Wall. 329 357 Notes on U. S. Eeports. 544 (VII, 702.) Miscellaneous. Cited in Saxlehner v. Eisner, 140 Fed. 940, there is little analogj between trademark property rights and patents for inventions. 13 Wall. 329-335, 20 L. 696, THE PATAPSCO. Syl. 1 (VII, 709). Supplies to ship in foreign port. Approved in The Wyandotte, 136 Fed. 473, where charterer's agent in foreign port procured libelant to purchase master's draft for pay- ment of necessaries, owners cannot offset against same demurrage claims against charterers; The Surprise, 129 Fed. 875, 64 C. C. A. 309, supplies furnished vessel on order of master in foreign port create lien though vessel navigated by charterer, who is bound to make dis- bursements and protect vessel from liens. Distinguished in The New Brunswick, 129 Fed. 895, 64 C. C. A. 325, where place of business of corporation which is owner of vessel is at port in state other than that of its creation, master cannot impress lien for supplies in that port, where furnisher knew facts. 13 Wall. 335-357, 20 L. 646, BRADLEY v. FISHER. Syl. 3 (VII, 713). Liability of judges for official acts. Approved in Mitchell v. Galen, 1 Alaska, 341, where justice of peace collusively issues warrant for arrest of mine owner for trespass on his own property, so that he may be removed therefrom, and others acting with judge may take possession, he is civilly liable; McVeigh V. Ripley, 77 Conn. 141, 58 Atl. 703, where theft of horse punishable by imprisonment, and theft of property of value of $15 punishable by fine of not over $7, where justice fined horse thief $5 and committed him until fine paid, justice not liable for false imprisonment; Com- stock v. Eagleton, 11 Okl. 492, 69 Pac. 957, probate judge, in rendering judgment in bastardy case, is not liable for false imprisonment though judgment is erroneous. Syl. 4 (VII, 714). Judge's liability for action within jurisdiction. Approved in Bohri v. Barnett, 144 Fed. 390, false imprisonment based on arrest and conviction for violation of void ordinance does not lie against trial judge, constable and prosecuting attorney where magistrate had jurisdiction over violations of ordinances; United States v. Bell, 135 Fed. 338, 68 C. C. A. 144, where plaintiff's claim offered for filing in federal court against state judge of general juris- diction showed on face lack of cause of action against them, he was not injured by clerk's refusal to file papers; Rush v. Buckley, 100 Me. 331, 61 Atl. 778, 70 L. R. A. 464, municipal judge issuing warrants and trying case for violation of ordinance which never was legally passed is not liable for damages. Syl. 5 (VII, 715). Inherent power to disbar attorneys. Approved in dissenting opinion in In re Waugh, 32 Wash. 59, 72 Pac. 713, majority holding supreme court has no inherent original 545 Notes on U. S. Keports. 13 Wall. 363-373 jurisdiction of proceedings to disbar an attorney for fraud on superior court in procuring admission to practice. 13 Wall. 363-3G6, 20 L. 653, ROBINSON v. UNITED STATES. Syl. 1 (VII, 717). Evidence of custom to explain contract. Approved in Snoqualmi Realty Co. v. Moynihan, 179 Mo. 643, 78 S. W. 1018, where building contract required "San Domingo mahog- any," evidence admissible that such phrase meant mahogany equal in density to that grown in San Domingo. Syl. 2 (VII, 718). Usage considered when contract made. Approved in Cleveland-Cliffs etc. Co. v. East Itasca etc. Min. Co., 146 Fed. 235, construing contract for assignment of mining leases with reference to manner of conducting explorations; Northern Pac. Ry. Co. V. Kempton, 138 Fed. 995, where stock carriage contract was silent as to time and manner of performance, evidence of custom to furnish independent train transportation of stock of over ten carloads is admissible; Lillard v. Kentucky Dist. etc. Co., 134 Fed. 174, 175, G7 C. C. A. 74, evidence of custom is admissible to show that contract for delivery of distillery slop at cattle-feeding lot contemplated that lot be supplied with suitable pens equipped with troughs and pipes; Security Trust Co. v, Eobb, 142 Fed. 84, arguendo. Distinguished in Lillard v. Kentucky Distilleries etc. Co.. 134 Fed. 183, 185, 67 C. C. A. 74, evidence of custom is inadmissible to show that contract for delivery of distillery slop at cattle-feeding lot con- templated that lot be supplied with suitable pens equipped witp troughs and pipes. Syl. 4 (VII, 719). Evidence sufficient to establish usage. Approved in Chicago etc. Ry. Co. v. Lindeman, 143 Fed. 949, where plaintiff's witnesses testify that there was custom of doing act in certain way, and that they followed custom, and defendants' wit- nesses say they performed same act at same time in different way, custom not shown to be uniform; Penland v. Ingle, 138 N. C. 458, 50 S. E. 851, holding custom of real estate brokers to charge five per cent commission not sufficiently shown. 13 Wall. 3C7-373, 20 L. 594, HALL v. RAILROAD COS. Syl. 1 (VII, 719). Insurer's liability secondary to carrier. Approved in Firemen's Fund Ins. Co. v. Oregon Ry. etc. Co., 45 Or. 62, 76 Pac. 1077, 67 L. R. A. 161, where insurer pays loss under policy in sum less than insured's loss, and takes subrogation assign- ment for sum paid, insurer and insured may sue, in joint names, wrongdoer causing loss. 35 IS Wall. 373-3S6 Notes on U. S. Reports. 546 Syl. 2 (VII, 719). Payment of loss by marine insurers — Abandon- ment. Approved in The Livingstone, 130 Fed. 748, 65 C. C. A. 610, bill of sale of vessel sunk in collision and which is actual total loss and is abandoned does not vest insurer with right of action against vessel in fault for collision. 13 Wall. 373-379, 20 L. 611, EAST SAGINAW ETC. SALT CO. v. SAGINAW. Syl. 6 (VII, 724). Bounties are repealable. Approved in Powers v. Detroit etc. Ey. Co., 201 U. S. 557, 50 L. 865, 26 Sup. Ct. 556, Mich. Laws 1855, p. 305, § 9, providing that rail- road shall pay tax based on percentage of capital stock in lieu of other taxes, creates contract between state and railroad; Houghton V. Payne, 194 U. S. 99, 48 L. 891, 24 Sup. Ct. 590, construing Comp. St. 1901, p. 2646, with reference to second-class mail matter. 13 Wall. 379-386, 20 L. 627, SLAUGHTER v. GEESON. Syl. 1 (VII, 724). What misrepresentation vitiates contract. Approved in Chamberlayne v. American Law Book Co., 148 Fed. 317, representation to law-writer that he can complete certain treatise within time limit of contract is not basis of action for deceit; Kimber v. Young, 137 Fed. 747, 70 C. C. A. 178, in action for deceit in sale of corporate bonds allegations of false representations by defendant that he knew bonds were good and that they would be paid create no liability; Gardner v. Mann, 36 Ind. App. 698, 76 N. E. 418, where owner of city property exchanged it for land in another state on representation that it was raw prairie land, whereas it was desert, and neither party had seen it, city owner entitled to rescind. Syl. 3 (VII, 725). Misrepresentation — Means of knowledge avail- able to both. Approved in Curran v. Smith, 149 Fed. 950, affirming Smith v. Cur- ran, 13S Fed. 157, holding where contracting engineers enteretl into provisional contract to investigate pipe-line project, and if satisfactory to contract for its construction, and they investigated it for one month flnd then entered into final contract, they cannot defend breach on ground of misrepresentation; Heck v. Missouri etc. Ey. Co., 147 Fed. 780, one signing release of cause of action for damages on receipt of money, without reading it, cannot avoid release on ground of mis- representation of contents; Burk v. Johnson, 146 Fed. 215, one pur- chasing ri^ht to use copyrighted plan for establishment of mutual burial associations cannot rescind sale for misrepresentations as to rights under copyright where he had opportunity to ascertain rights; Pittsburg Life etc. Co. v. Northern etc. Ins. Co., 140 Fed. 893, where, in examination of condition of concern which purchaser bought, state- ment prepared by seller's officers for its own use was used, and after 547 Notes on U. S. Eeports. 13 Wall. 418-449 sale it was found that there were errors in it, action for deceit docs not lie. Distinguished in Mather v. Barnes, 146 Fed. 1004, where purchasera of coal land who sent experts into field to examine same were deceived by acts of agent of seller, sale set aside; Kell v. Trenchard, 142 Fed. 23, where land and standing timber estimated at not less than thirty- \We million feet sold, and buyer's agent deceived by seller's agent as to quantity by false representations as to boundaries, principal was liable for fraud of agent; Davis v. Moore, 46 Or. 155, 79 Pac. 416, where one employed to select land for homestead selected piece which plaintiff could not secure on account of mining claims, he cannot defend on ground that plaintiff saw evidence of mines on ground, where defendant represented they had been abandoned. 13 Wall. 418-432, 20 L. 655, DAVENPORT v. LAMB. Syl. 4 (VII, 731). Under territorial laws settlors have possessory right. Approved in Price v. Brockway, 1 Alaska, 236. one who erects cabin on town lot in Alaska and acquires undisj)uted possession and occu- panc}'^ thereof, may maintain ejectment against one who ousts him therefrom. 13 Wall. 434-449, 20 L. 659, CLINTON v. ENGLEBRECHT. Syl. 3 (VII, 733). Selection of juries left to territorial legislature. Approved in Ex parte Moran, 144 Fed. 604, selection of grand jurors in way not authorized by territorial statute does not entitle prisoner to discharge on habeas corpus; Allen v. Reed, 10 Okl. Ill, 60 Pac. 784, holding void election law providing for change in location of county scat; Cullins v. Overton, 7 Okl. 485, 54 Pac. 706, under act of Con- gress (29 Stat. 113), appellate court may determine cause jicnding therein on appeal from Greer county court taken prior to March 16, 1896, but not decided till after that date; Territory v. Stroud, 6 Okl. 114, 50 Pac. 267, upholding act providing for prosecution of misde- meanors by information without preliminary examination; Ex parte Hally, 1 Okl. 16, 25 Pac. 515, under Organic Act, § 10, United States commissioner may commit one charged with assault to custody of United States marshal; dissenting opinion in Allen v. Reed, 10 Okl. 130, 152, 63 Pac. 869, 876, majority holding void election law provid- ing for change in location of county seat. Syl. 7 (VII, 735). Territorial courts not United States courts. Approved in Cochran v. United States, 147 Fed. 207, on trial in territorial court of offense against United States, questions relating to severance and number of peremptory challenges are determined by territorial laws; Ex parte Moran, 144 Fed. 598, circuit court of ap- peals may issue habeas corpus to inquire into power of Oklahoma court to imprison one convicted of capital crime; Wallace v. Adams, 13 Wall. 456-479 Notes on U. S. Eeports. 548 143 Fed. 725, United States courts in Indian territory have equitable jurisdiction to charge titld to land evidenced by Dawes Commission certificate of allotment with trust in favor of rightful claimant; Welty V. United States, 14 Okl. 15, 16, 76 Pac. 123, in criminal prosecution in territorial court sitting with powers of federal court, territorial pro- cedure governs; Fuller v. Johnson, 8 Okl. 605, 58 Pac. 747, United States court of Indian territory is not "United States court" within Okl. St. 1890, p. 930, § 2, relating to limitation of actions; Ex parte Murphy, 1 Okl. 290, 29 Pac. 653, bail pending appeal in criminal case on federal side of territorial court is allowed as provided by territorial statute. 13 Wall. 456-465, 20 L. 629, BUTLER v. WATKINS. Syl. 4 (VII, 739). Requisites to show fraud. Approved in Rogers v. Virginia-Carolina etc. Co., 149 Fed. 19, upholding sufficiency of complaint in action for fraud in inducing contract for sale of options for purchase of phosphate lands. Syl. 6 (VII, 739). Corporation liable for agent's fraud. Approved in Stewart v. Wright, 147 Fed. 328, where bank knew that defendant was engaged in confidence game and represented him as man of credit to victims, and its officers drew drafts for victims, bank liable as party to scheme. Syl. 7 (VII, 739). Inference of fraudulent motive. Approved in Exchange Bank v. Moss, 149 Fed. 343, where petition in action for recovery of money obtained by conspiracy between bank and others to swindle strangers, alleged existence of conspiracy for long time, evidence of acts of bank's cashier with respect to similar transactions is admissible; Brooks v. United States, 146 Fed. 231, in trial for mailing certain letters with intent to defraud, other letters from defendant's company relating to company's transactions, admis- sible to show existence of fraudulent scheme; Olson v. United States, 133 Fed. 854, 67 C. C. A. 21, on indictment for conspiracy to defraud government by causing illegal entry of certain tract by certain per- son, evidence of inducement of entry by others of other tracts is ad- missible; Yakima VaJIey Bank v. McAllister, 37 Wash. 574, 107 Am. St. Rep. 823, 79 Pac. 1122, where, in action on note, defendant alleges in- dorsement procured by trick, evidence of similar trick played on others is admissible even as against bona fide holder. 13 Wall. 475-479, 20 L. 542, THE ARIADNE. Syl. 1 (VII, 741). Collision — Duty to have lookout. Approved in The Cypromene, 135 Fed. 565, holding steamer navi- gating river at night without lookout liable for collision with ship anchored in customary anchorage; The Sitka, 132 Fed. 864, holding steamer liable for collision with passing vessel where she had no efficient lookout; The Echo, 131 Fed. 631, holding steamer navigating 549 Notes on U. S. Reports. 13 Wall, 506-517 river opposite New Orleans liable for collision where she had no lookout other than master. 13 Wall. 506-517, 20 L. 702, FRENCH v. EDWARDS. Syl. 1 (VII, 744). Statutory requisitions for officers, when directory. Approved in Western Electric Co. v. North Electric Co., 135 Fed. 82, 67 C. C. A. 553, where, under Rev. St., § 4885, by reason of accumu- lation of work, patent cannot be prepared within six months after allowance, and it is reallowed and issued on later date, it is not void; Allen V. City of Davenport, 132 Fed. 215, 65 C. C. A. 641, under Iowa 25th Gen. Assem. Acts, c. 7, p. 18, providing that all street improve- ments shall be made by contract, special assessment cannot be levied unless valid contract made; Montana Ore etc. Co. v. Mahcr, 32 Mont. 487, 81 Pac. 15, ten days' notice to taxpayer of increase in assess- ment required by Pol. Code, § 3789, is jurisdictional; Hertzler v. Freeman, 12 N. D. 190, 96 N. W. 285, assessment of realty in name of another than true owner does not render tax void; Frazier v. Prince, 8 Okl. 258, 58 Pac. 752, under Okl, St. 1893, § 5618, where three con- tiguous lots are listed separately, but valued together, assessment is void; Sweet v. Boyd, 6 Okl. 711, 52 Pac. 943, refusing to enjoin col- lection of taxes for mere irregularities in tax proceedings which did not affect substantial rights; Sharpe v. Engle, 2 Okl. 628, 39 Pac. 385, taxpayer cannot enjoin collection of taxes because levied few days after time provided by Okl. St. 1893, § 5627; Tefft v. Lewis, 27 R. I. 17, 60 Atl. 246, under Pub. Laws 1903, p. 33, c. 1101, vesting title to property of abolished school districts in towns, and providing for appraisement of property and levy of tax to pay therefor, assess- ment without appraisal is void; Dickson v. Burckmyer, 07 S. C. 533, 46 S. E. 346, determining validity of tax sale. Syl. 2 (VII, 746). Tax sale— Sale of smallest portion. Distinguished in dissenting opinion in Jacobs v. Buckalcu, 4 Ariz. 357, 42 Pac. 621, majority holding under Rev. St., par. 2694, requiring collector to designate what portion less than whole he will sell, inquiry "who will take lowest quantity of said block and pay taxes and costs due" is not sufficient. Syl. 3 (VII, 746). Presumptions as to regularitj' of official acts. Approved in United States v. Cornell Steamboat Co., 202 U. S. 192, 50 L. 991, 26 Sup. Ct. 648, upholding liability of government for sal- vage on duties collected by it on cargo afterward saved from fire while in possession of customs officers; Wabash R. Co. v. De Tar, 141 Fed. 934, applying rule to instructions as to presumption of exer- cise of due care by one approaching railroad crossing. 13 Wall. 517-604 Notes on U. S. Eeports. 5o0 13 Wall. 517-523, 20 L. 543, MILWAUKEE ETC. EAILROAD CO. v. SOUTTER. Syl. 4 (VII, 748). Recovery of money paid under mistake of law. Approved in German Sav. & L. Soc. v. Tull, 136 Fed. 5, 69 C. C. A. 1, tenant in common who purchases entire interest through foreclosure not bona fide purchaser where he had knowledge of fraudulent pro- bate proceedings; dissenting opinion in Thomas v. Provident Life etc. Co., 138 Fed. 371, majority holding where property charged with legacy was sold, and proceeds paid to legatee, neither she nor judgment creditor of residuary legatees can object to mortgage of estate's lauds executed without authority in will. 13 Wall. 526-531, 20 L. 631, COMMONWEALTH v. BOUTWELL. Syl. 1 (VII, 749). Mandamus — Payment of claim after time. Approved in Bosworth v. Shuck', 118 Ky. 462, 81 S. W. 241, denying mandamus to compel treasurer to pay warrant for auditor's clerk issued pursuant to judgment, where appropriation was exhausted; Wilson V. Cox, 73 S. C. 400, 53 S. E. 613, denying mandamus to compel county dispenser to open dispensary where election had decided against dispensary. 13 Wall. 531-508, 20 L. 491, STOCKWELL v. UNITED STATES. Syl. 2 (VII, 750). When debt lies. Approved in United States v. Alcorn, 145 Fed. 1001, in action on projiosal bond given by bidder for mail contract under Comp. St. 1901, p. 2695, actual damages cannot be inquired into. Syl. 4 (VII, 750). Knowledge of one partner as knowledge of all. Approved in In re Hardie, 143 Fed. 609, materially false statement by One partner in course of firm's business for purpose of obtaining credit for firm bars other partner from right to discharge in bank- ruptcy. 13 Wall. 568-5S0. 20 L. 707, TWENTY PER CENT CASES. (VII, 752.) Miscellaneous. Cited in State v. Loechner, 65 Neb. 818, 91 N. W. 875, 59 L. E. A. 915, member of board of education of school district in city is ministerial ofiicer within Cr. Code, § 180, punishing malfeasance in office. 13 Wall. 603, 604, 20 L. 708, HOME ETC. INS. CO. v. BARTON. Syl. 1 (VII, 753). Discretion to grant or refuse new trial. Approved in Newport News etc. Electric Co. v. Youut, 136 Fed. 590, 69 C. C. A. 363, following rule. 551 Notes on U. S. Eeports. 13 Wall. 608 C23 13 Wall. 608-616, 20 L. 709, PAIGE v. BANKS. Syl. 2 (VII, 754). Assignment of copyright forever — Effect of statutory limit. Approved in New York Life Ins. Co. v. Smith, 139 Ala. 309, 35 So. lOOG, note for premium on policy stipulating for its deduction from policy if it becomes claim is not indebtedness on account of policy witliin provision for extended insurance for face of policy on payment of debt within thirty days of lapse of premium. 13 Wall. 616-623, 20 L. 501, PHOENIX MUT. LIFE INS. CO. v. BAILEY. Syl. 3 (VII, 755). Equitable relief — Adequate law remedy. Approved in United States v. Bitter Eoot etc. Co., 133 Fed. 278, 66 C. C. A. 652, denying equitable jurisdiction over suit by United States against number of corporations for joint trespass on public Luids and unlawful cutting of timber therefrom; Gulf Eed Cedar Co. V. Crenshaw, 138 Ala. 141, 35 So. 51, upholding jurisdiction over suit by tenants in common against cotenants for accounting of timber taken, discovery and injunction against future waste. Syl. 5 (VII, 757). Where law gives complete relief no equity. Approved in Ames Realty Co. v. Big Indian etc. Min. Co., 146 Fed. 176, in federal equity suit to protect water rights in stream against other separate appropriators, all of whom are citizens of different states from complainant, court may entertain cross-bill setting up priority, irrespective of citizenship; General Elec. Co. v. Westinghouse Elec. & Mfg. Co., 144 Fed. 466, where contract for manufacture of goods provided for liquidated damages at half of sale price in case of breach, violation thereof not enjoined; American Lighting Co. v. Public Service Corp. 134 Fed. 131, refusing to punish as contempt the disregard of restraining order issued in case where adequate remedy- at law existed; American Alkali Co. v. Salom, 131 Fed. 50, 65 C. C. A. 284, subscriber to corporate stock may plead rescission of sale for fraud as defense to action for assessment on subscription. Syl. 6 (VII, 757). Defense at law to legal demand bars equity. Approved in Scottish Union etc. Ins. Co. v. Bowland, 196 U. S. 633, 49 L. 628, 25 Sup. Ct. 345, refusing to enjoin prosecution of suits against foreign corporation for personal property taxes on ground that corporation is not personally liable therefor; Des Moines Life Ins. Co. v. Seifert, 210 111. 159, 71 N. E. 350, refusing to cancel insurance policy because of false statements by insured in application; Seymour Water Co. v. Seymour, 163 Fed. 127, 70 N. E. 516, refusing to cancel contract between city and water company granting latter exclusive right to furnish water at exorbitant rate; Security Sav. Bank v. Carroll, 128 Iowa, 233, 103 N. W. 380, receipt of notice ffom treasurer of intent to assess property alleged to have been omitted is no ground for injunction prior to time fixed for hearing; Lynch v. United States, 13 Wall. 664-738 Notes on U. S. Eeporta. 652 13 Okl. 145, 73 Pac. 1097, refusing at suit of government, to cancel patent obtained by bribery and perjury of cntryman who has sold to bona fide purchaser; Johnson v. Swanke, 128 Wis. 73, 107 N. W. 482, 5 L. E. A. (N. S.) 1048, maker of non-negotiable note procured by fraud is not entitled to its cancellation or to injunction againsi its transfer. 13 Wall. 664-672, 20 L. 632, EX PAETE EUSSELL. Syl. 2 (VII, 765). New trial after receipt of appellate mandate. Approved in Chambliss v. Hass, 125 Iowa, 488, 101 N. W. 155, 68 L. E. A. 126, where defendant appealed and judgment was affirmed, and it was paid on execution, defendant's motion for new trial on ground of new evidence made within statutory period. 13 Wall. 679-738, 20 L. 666, WATSON v. JONES. Syl. 2 (VH, 767). Abatement — Identity of other suit pending. Approved in In re Chandler, 135 Fed. 893, bankruptcy proceedings are still pending in district court notwithstanding dismissal of petition to revoke discharge so as to authorize order restraining bankrupt's arrest while cause stands on review in circuit court of appeals; Loewe v. Lawlor, 130 Fed. 634, pendency of state suit is not ground for abatement of federal suit to recover treble damages under Anti-trust Act, § 7; Mares v. Dillon, 30 Mont. 138, 75 Pac. 967, pendency of action in support of one mining claim not bar to suit in support of another claim. Syl. 3 (VII, 767). Interfering with possession of state court. Approved in Cobe v. Eicketts, 111 Mo. App. 110, 85 S. W. 132, where, after suit brought in federal court to dissolve loan society, state court attempted to transfer its jurisdiction previously attached in similar suit to federal court, which assumed jurisdiction, decree of sale of assets not collaterally assailable in suit on society's note. Syl. 10 (VII, 771). Eeligious societies — Determination of ques- tions of discipline. Approved in Shaeffer v. Klee, 100 Md. 271, 59 Atl. 852, members of religious society cannot sue to restrain trustees from changing language of service; First Presbyterian Church v. Myers, 5 Okl. 820, 50 Pac. 74, 38 L. E. A. 687, determining whether "call" made by Presbyterian church is proposition for a contract effective only on concurrency of presbytery. Explained in Hendryx v. People's United Church, 42 Wash. 340, 84 Pac. 1125, where members of church are expelled in pursuance of fraudulent scheme to divert property from its original purpose, expelled members may sue to protect church property. 553 Notes on U. S. Eeportg, 14 Wall. 44-84 Syl. 11 (Vn, 773). Eeligious societies — judicial review of de- cisions. Approved in Morris St. Baptist Church v. Dart, G7 S. C. 341, 100 Am. St. Eep. 727, 45 S. E. 754, majority of members of Baptist church may, at regular meeting properly called, dismiss pastor vpithout notice or trial on charges; Christian Church v. Church. of Christ, 219 III. 511, 76 N. E. 705, arguendo. (VII, 766.) Miscellaneous. Cited in Sumner v. Milford, 214 HI. 394, 73 N. E. 744, explaining meaning of word "jurisdiction." XIV WALLACE. 14 Wall. 44-69, 20 L. 815, HENDEESON'S DISTILLED SPIEITS. Syl. 2 (VII, 778). Forfeitures — Subsequent payment no defense. Approved in United States v. One Dark Bay Horse, 130 Fed. 241, where claimant of property had owned it for over five j'ears without suspicion of its illegal importation, proceeding for forfeiture is barred; Daniels v. Homer, 139 N. C. 230, 51 S. E. 996, 3 L. E. A. (N. S.) 997, upholding Acts Gen. Assem. 1905, e. 292, § 9, providing for seizure and sale of property used in illegal fishing. (VII, 778.) Miscellaneous. Cited in Leigh v. Green, 193 U. S. 88, 101 Am. St. Eep. 606, 48 L. 627, 24 Sup. Ct. 390, holding of lien on realty not denied due process by statute providing for service by publi- cation of notice of p)endency in rem to enforce lien of purchaser at tax sale. 14 Wall. 69-84, 20 L. 762, CHEISTMAS v. EUSSELL. Syl. 4 (VII, 780). Eequisites of equitable assignment. Approved in Weiss v. Gullett, 18 Colo. App. 128, 70 Pac. 444, con- tract between mine owners and attorneys to pay certain sum of pur- chase money of mine when sold gives no right of action by attorneys against purchaser; Eeviere v. Chambliss, 120 Ga. 716, 48 S. E. 123, unaccepted check is not assignment of money to credit of drawer. Syl. 6 (VII, 781). Assignment — Agreement to pay out of fund. Approved in Cogan v. Conover Mfg. Co., 69 N. J. Eq. 364, 60 Atl. 411, reaffirming rule; Long v. Farmers' State Bank, 147 Fed. 363, where debtor agreed to carry insurance on stock to protect bank's claim, assigning insurance to bank as collateral, there was no as- signment of policies in praesenti; In re Cramond, 145 Fed. 977, whore paving contractor assigned right to moneys due to bank to obtain advances to complete work, bank acquired equitable lien superior 14 Wall. 87-120 Notes on U. S. Reports. 554 to priority right of payment given by Bankr. Act, § 64 to laborers; Johnston v. Huff, 133 Fed. 706, 66 C. C. A. 534, where one contracting to board, track gang agreed with supply firm for credit, giving it order on railroad for sums due him, which was not to be presented unless he fell short in payments, and order not presented till one day prior to petition in bankruptcy, it was preference. Syl. 7 (VII, 782). Assignment — Order to pay out of specified fund. Approved in Gillette v. Murphy, 7 Okl. 105, 54 Pae. 417, order given by ex-sheriff to creditors on county for warrants due from it to such sheriff for fees is equitable assignment of account. 14 Wall. 87-98, 20 L. 832, TEADERS' BANK v. CAMPBELL. Syl. 4 (VII, 784). Bankruptcy — Preference to bank setoff of de- posits. Approved in Tomlinson v. Bank of Lexington, 145 Fed. 826, where concern had agreement with bank as to overdrafts, deposits applied to such overdrafts not preferences which must be surrendered before bank could prove notes against bankrupt's estate. 14 Wall. 98-109, 20 L. 804, THE THAMES. Syl. 3 (VII, 785). Duty of carrier to hold goods for consignees. Approved in Arkansas etc. Ry. Co. v. German Nat. Bank, 77 Ark. 487, 92 S. W. 524, following rule; dissenting opinion in Clegg v. Southern Ry. Co., 135 N. C. 156, 47 S. E. 670, majority holding where railroad refused to deliver fruit to owner on his refusal to pay freight in excess of that due, and before discovery of error fruit frozen, fact that at time of demand bill of lading had not been de- livered by consignee is no defense. Syl. 5 (VII, 785). Bill of lading— Title to goods. Approved in The Nimrod, 141 Fed. 217, where owners of tug con- tracted for repairs in name of company under which tug operated, but there was no corporation of that name, owners as individual could sue for breach of contract; General Electric Co. v. Southern Ry., 72 S. C. 254, 110 Am. St. Rep. 603, 51 S. E. 696, where freight shipped under bill of lading with draft attached, bill of lading run- ning to order of shipper, and to notify third party, carrier could not deliver without bill of lading. 14 Wall. 116-120, 20 L. 787, THE BRIDGEPORT. Syl. 1 (VII, 786). Collision — Deviation from usual course. Approved in The Degama, 150 Fed. 324, moving vessel colliding with moored vessel cannot be exonerated on ground that tugs con- trolled movements unless such defense is pleaded and proved. 555 Notes on U. S. Reports. 14 Wall. 120-252 14 Wall. 120-151. 20 L. 765, ARMSTEONG v. MORRILL. (VII, 787.) Miscellaneous. Cited in King v. Hatfield, 130 Fed. 578, arguendo. 14 Wall. 170-189, 20 L. 822, THE SCOTIA. Syl. 2 (VII, 790). Collision — Precautions where danger not appre- hended. Approved in The Kaiserin Maria Theresa, 149 Fed. 99, steamer is not required to maintain speed so low as to enable her to avoid collision without other vessel navigating without proper lights. Syl. 3 (VII, 790). Law governing whether act tortious. Approved in In re Clyde S. S. Co., 134 Fed. 99, upholding admiralty jurisdiction over suit for death due to collision on high seas, where recovery for wrongful death is given by statutes of state in which both vessels belonged. Syl. 6 (VII, 791). Rules of navigation part of maritime law. See 113 Am. St. Rep. 872, note. 14 Wall. 199-204, 20 L. 873, THE MERRIMAC. Syl. 1 (VII, 792). Liability for negligent sailing where pilot aboard. Approved in The Robert Rickmers, 131 Fed. 642, vessel liable for damage to another by drifting though anchorage chosen by master of her tug. 14 Wall. 204-216, 20 L. 881, THE MABEY AXD COOPER. Syl. 2 (VII, 793). Collision— Inevitable accident defined. Approved in New York etc. S. S. Co. v. New York etc. Ry. Co., 143 Fed. 993, defense of inevitable accident not made out where collision between tug and steamer caused by floating ice which was not seen because of absence of proper lookout on tug. 14 Wall. 244-252, 20 L. 797. GIBSON v. WARDEN. Syl. 3 (VII, 794). Assignees stand in place of bankrupt. Approved in Smith v. An Gres Twp. 150 Fed. 264, witness mav testify after death of bankrupt to admissions made by bankrupt concerning his estate while he was yet owner thereof; Tatman v. Humphrey, 184 Mass. 362, 100 Am. St. Rep. 562, 68 N. E 845, 63 L. R. A. 738, in case of preference by way of unrecorded chattel mortgage, transfer dates from acquisition of possession under mort- gage. Syl. 4 (VII, 795). Bankruptcy — Transfers in fraud of creditors. Approved in In re Pease, 129 Fed. 450, where trust company through its attorney, who also represented creditors of merchant, loaned money 14 Wall. 252-335 Notes on U. S. Keports. 556 on chattel mortgage on his stock, with which he paid attorney's clients, and next day company sold stock under mortgage, mortgage was void under Bankr. Act, § 67e. 14 Wall. 252-257, 20 L. 887, HOOK v. PAYNE. Syl. 1 (VII, 796). Administrators — Parties — Suit to recover dis- tributive share. Approved in O'Callaghan v. O'Brien, 199 U. S. 101, 50 L. 107, 25 Sup. Ct. 727, denying federal jurisdiction on ground of diversity of citizenship, over bill seeking declaration of nonexistence of will and nullity of its state probate, where state proceeding to contest will is only ancillary to original proceeding. ]4 Wall. 270-279, 20 L. 828, THE CAYUGA. Syl. 4 (Vn, 799). Demurrage for injuries caused by collision. Approved in The Mary N. Bourke, 145 Fed. 911, allowing owner of vessel to set off, against cost of repairs, demurrage because of unnec- essary de^Ty in their completion. 14 Wall. 282-297, 20 L. 809, CITY OF LEXINGTON v. BUTLER. Syl. 3 (VII, 800). Municipal negotiable securities — Bona fide pur- chasers. Approved in In re Troy & Cohoes Shirt Co., 136 Fed. 433, where oflScers of corporation drew note payable to corporation's order, which they indorsed in name of corporation and individually and delivered it to another officer for use of firm of which all were members, and it was indorsed in firm name, knowledge of discounter that officers were members of firm not notice of true character of notes. 14 Wall. 297-308, 20 L. 891, BIGLEE v. WALLER. Sy]. 1 (VII, 803). Deed of trust requiring notice of sale. Approved in Chace v. Morse, 189 Mass. 561, 76 N. E. 144, fact that notice of sale under power in mortgage, and sale itself, included land not mortgaged, renders sale voidable only; Moore v. Dick, 187 Mass. 211, 72 N. E. 968, applying rule where deed of trust provided for notice of sale in certain paper and notice given in another paper. 14 Wall. 314-335, 20 L. 852, FRENCH v. SHOEMAKER. Syl. 2 (VII, 804). Duress to avoid contract. Approved in First Nat. Bank v. Sargent, 65 Neb. 601, 91 N. W. 597, 59 L. R. A. 296, where one gave bank deed to land as security for debt, and debtor being broke procured pureliaser at good price, but bank refused to consent to sale, unless big bonus paid it, bonus procured under duress. 557 Notes on U. S. Eeporta, 14 Wall. 336-402 Syl. 3 ("VII, 805). Setting aside contract — Financial distress. Approved in Burnes v. Burncs, 132 Fed. 493, refusing to set aside agreement for division of stock in corporation formed out of busi- ness of decedent where decedent's partner threatened to administer estate as survivor unless corporation formed. 14 Wall. 336-345, 20 L. 813, THE LAURA. Syl. 1 (VII, 805). Abandoned vessel is derelict. Approved in The Myrtle Tunnel, 146 Fed. 330, where vessel stranded and contract made for floating her, but effort unsuccessful and she was abandoned by crew, and later she was moved off by high wind and found drifting by tug, and towed to port, tug en- titled to half proceeds for salving her as derelict. 14 Wall. 375-383, 20 L. 894, INSURANCE COS. v. WEIDES. Syl. 1 (Vn, 800). Insurance — Copy of original burned inventory admissible. Approved in Grunberg v. United States, 145 Fed. 96, 97, per- mitting use of entries in ledger showing gross amount of invoices of goods sold and pajanents made thereon, to refresh memory of member of firm, M'hcre ledger posted at end of month; United States v. Ninety-nine Diamonds, 139 Fed. 968, 2 L. R. A. (N. S.) 185, con- struing Comp. St. 1901, p. 1895; relating to false statements of en- try of merchandise; St. Louis etc. Ey. Co. v. White S. M. Co., 78 Ark. 5, 93 S. W. 60, where, on issue as to whether telegram sent, operator's testimony that he did not himself send message, but that service notation marks on original made by him and that from such memorandum he knew at time of making it that message was sent, is admissible; Meyers v. McAllister, 94 Minn. 512, 103 N. W. 565, upholding admission of list of personalty involving numerous items, shown to be correct by testimony of party who made it, without direct proof that he could testify to details independently of list; Manning v. School District No. 6, 124 Wis. 99, 102 N. W. 361, permitting witness to refresh memory from memorandum made by him at time of occurrence and remembered by him to have been then known to be correct, though he has no present recollection of facts, and admitting memorandum in evidence. 14 Wall. 383-402, 20 L. 840, BANK OF BETHEL v. PAHQUIOQUE BANK. Syl. 3 (VII, 809). Status of national bank in hands of receiver. Approved in Gerard v. Duncan, 84 Miss. 735, 36 So. 1035, 66 L. R. A. 461, notes and solvent credits of insolvent state bank passing to assignee by general assignment before February 1st in any year are taxable in hands of assignee; Fish v. Olin, 76 Vt. 125, 56 Atl. 533, receiver of national bank may sue at law in own name in 14 Wall. 402-433 Notes on U. S. Reports. 558 state courts; Muir v. Citizens' Nat. Bank, 39 Wash. 58, 80 Pac. 1007, where national bank went into voluntary liquidation, it was not thereafter required to register subsequent transfer of its stock and to issue new stock to transferee. Syl. 4 (VII, 809). Appointment of receiver does no.t dissolve bank. Approved in Cogswell v. Second National Bank, 76 Conn. 259, 56 Atl. 577, appointment of temporary receiver, though erroneous, under U. S. Rev. St., § 5242, is not ground for reversal, where ap- pointment made to fill vacancy caused by death. 14 Wall. 402-405, 20 L. 857, O'DOWD v. RUSSELL. Syl. 3 (VII, 811). Erroneous date on writ of error not fatal. Approved in In re McCall, 145 Fed. 903, applying rule where or- der overruling application for rehearing of order confirming bank- rupt's composition was entered on journal for October 10th, which contained filing indorsement of same date, and judge's direction to enter order was dated October 16th. 14 Wall. 406-418, 20 L. 774, THE STEAMER WEBB. Syl. 2 (VII, 812). Care required of towing tug. Approved in The Britannia, 148 Fed. 497, holding tug towing scows at fault where its only hawser parted thrice and scows lost; The Oceanica, 144 Fed. 303, where steamer towing barge broke pro- peller and cast barge loose, so that it drifted against pier, barge not in fault for not dropping anchor when cast adrift; The W. G. Ma- son, 142 Fed. 915, where steamer towed by two tugs promptly obeyed signals of leader, but stranded against channel, burden of disproving negligence is on tugs; Burr v. Knickerbocker etc. Co., 132 Fed. 249, 65 C. C. A. 554, where vessel being towed from dock up channel in calm weather stranded after going few lengths, negligence of tug presumed ; The W. G. Mason, 131 Fed. 636, applying rule where steamer in tow of tugs promptly obeyed signals of leader, but stranded against one side of channel; Williams v. Alaska Commercial Co., 2 Alaska 64, where tow-line broke outside of three-mile limit and tow left to its fate, and wrecked on shore, where decedent's death hap- pened, cause of action accrued in Alaska. 14 Wall. 419-433, 20 L. 748, SMITH v. MASON. Syl. 4 (VII, 814). Bankruptcy — Proceedings to recover property conveyed. Approved in First Nat. Bank v. Chicago Title etc. Co., 198 U. S. 289, 49 L. 1054, 25 Sup. Ct. 693, no appeal lies from decree of bank- ru]itey court in proceeding begun by receiver's petition for direc- tions respecting sale by which question of his possession decided, sale decreed and rights of adverse claimants determined. 559 Notes on U. S. Eeports. 14 Wall. 434-491 14 Wall. 434-441, 20 L. 858, MOWEY v. WHITNEY. Syl. 1 (VII, 815). Suit to annul patent by whom brought. Approved in Allen v. Consolidated Fruit Jar Co., 145 Fed. 949, denying jurisdiction over suit for accounting for profits, damages, or royalties based on contract granting license under patent, or for cancellation of patent; Eastern etc. Bag Co. v. Continental etc. Bag Co., 142 Fed. 511, alleged infringer cannot collateralh^ attack patent on ground that patentee's solicitor contributed substantial part of invention and embodied it in application after patentee had made oath to same; Calculagraph Co. v. Wilson, 132 Fed. 21, validity of patent regular on its face cannot be collaterally attacked on ground that final fee was not paid within six months required by statute. Syl. 2 (VII, 816), Equity jurisdiction to try conflicting claims on patents. Approved in Boston etc. Power Co. v. Eureka Patents Co., 139 Fed. 31, where identity of patent claims not shown, court cannot declare later patent invalid for want of patentability. 14 Wall. 442-452, 20 L. 807, SCHUYLKILL ETC. IMPROVEMENT & RY. CO. V. MUNSON. Syl. 2 (A'll, 817). Trial— Prima facie case. Approved in Swift v. Johnson, 138 Fed. 875, where father willfully abandoned family, evidence that prior to death, son said that if father were in need he would give him something, does not warrant recovery of more than nominal damages for wrongful death of son ; Minahan v. Grand Trunk etc. Ry. Co., 138 Fed. 45, 70 C. C. A. 403. holding evidence in action for injuries to passenger by derailment of car as it passed over defective switch presented question for jury; Chicago etc. Ry. Co. v. Andrews, 130 Fed. 74, G4 C. C. A. 399, apply- ing rule in action for injuries at railroad crossing where plaintiff's evidence showed culpable negligence; Gunn v. Union R. R. Co., 27 E. I. 327, 02 Atl. 121, upholding Gen. Laws 1S96, e. 251, § 11. au- thorizing supreme court to direct judgment without further trial by jury. Syl. 4 (VII, 819). Proof of loss of first survey to admit second. Approved in Brown v. Harkins, 131 Fed. 66, 65 C. C. A. 301, refus- ing secondary evidence of contents of record-book on proof that it had been taken to revenue office from collector's office, and that search had been made in revenue office for it. 14 Wall. 484-491, 20 L. 722, DIRST v. MORRIS. Syl. 2 (VII, 822). Review of evidence as to weight or sufficirn^^^ Approved in Coulter v. B. F. Thompson Lumber Co., 142 Fed. 708, court cannot instruct as to which class of evidence is preferred; 14 Wall. 491-535 Notes on U. S. Keports, 660 J. W. Bishop Co. V. Shelhorse, 141 Fed. 618, applying principle in action for wrongful death; Streeter v. Sanitary Dist. of Chicago, 133 Fed. 126, 128, 129, 66 C. C. A. 190, in case tried to court where there were no special findings nor stipulation of facts, ruling in re- quest that as matter of law plaintiff was entitled to recover amount claimed is not reviewable; Paul v. Delaware etc. E. Co., 130 Fed. 955, where general verdict is rendered only, such rulings in progress of trial are reviewable as are presented by bill of exceptions, or as may arise on pleadings. 14 Wall. 491-493, 20 L. 723, COLLINS v. EIGGS. Syl. 1 (YII, 823). Eedemption where sale for less than debt. Approved in Dougherty v. Kubat, 67 Neb. 274, 93 N. W. 319, mortgagee may insist upon tenant in common redeeming only to extent of his interest. 14 Wall. 493-504, 20 L. 726, UNITED STATES v. POWELL. Syl. 1 (VII, 823). Bond conditioned to comply with distillery laws. Approved in National Surety Co. v. United States, 129 Fed. 72, G3 C. C. A. 512, letter carrier's bond for performance of duties as carrier imposed by postal laws or regulations of department binds surety for discharge of duty of collecting letters to be registered imposed by order of department during term of bond. 14 Wall. 511-531, 20 L. 731, GOEHAM CO. v. WHITE. Syl. 1 (VII, 824). Patent for designs. Approved in West Disinfecting Co. v. Frank, 146 Fed. 3'^9. up- holding Taussig patent No. 33,633, for design for casing for disin- fecting apparatus. Syl. 2 (VII, 825). Design patents — What protected. Approved in General Gaslight Co. v. Matchless Mfg. Co., 129 Fed. 138, upholding Humphrey design patent No. 35,481, for cluster gas lamp. Syl. 3 (VII, 825). Patents — When designs identical. Approved in Baker v. Puritan Pure Food Co., 139 Fed. 683, hold- ing label used as trademark infringed; Williams Calk Co. v. Never- slip Mfg. Co., 130 Fed. 215, 217, holding void Williams design patent No. 29,793, for horseshoe calk, and not infringed. 14 Wall. 531-535, 20 L. 738, MOEGAN v. UNITED STATES. Syl. 1 (VII, 826). Belief for government official's tort. Cited in Christie-Street Com. Co. v. United States, 129 Fed. 507, arguendo. 561 Notes on U. S. Eeports. 14 Wall. 579-620 14 Wall. 579-606, 20 L. 779, THE DELAWARE. Syl. 5 (VII, 830). Carriers not liable where goods not delivered. Approved in Guffey v. Alaska etc. S. S. Co., 130 Fed. 274, 64 C. C. A. 517, where, at time of delivery of goods on wharf under bill of lading providing for shipment on certain vessel then at port, owner knew ship was at sea, and goods never delivered to ship's officers, vessel not subject to maritime lien for breach of contract. See 105 Am, St. Eep. 351, note. Syl. 6 (VII, 830). Evidence of usage — Mercantile contracts. Approved in Lillard v. Kentucky Dist. etc. Co., 134 Fed. 174, 1S2, 67 C. C. A. 74, admitting evidence of custom to show that contract for delivery of distillery slop at distiller's cattle-feeding lot contemplated that lot be supplied with pens, troughs and pipes; Portland etc. Co. v. British etc. Ins. Co., 130 Fed. 863, 65 C. C. A. 344, refusing evidence of custom of doing business where bill of lading is unambiguous. Syl. 7 (VII, 831). Parol evidence inadmissible to vary writing. Approved in Connecticut Fire Ins. Co. v, Buchanan, 141 Fed. 889, applying rule to conditions in insurance policy relating to use and occupancy of building; Eonan v. 155,453 Feet of Lumber, 131 Fed. 348, 349, memorandum delivered by carrier to master of barge after lumber loaded thereon, apparently to be signed by consignee as re- ceipt, and, which contained incomplete provisions as to demurrage, but was unsigned, does not exclude evidence of parol agreement with respect thereto. 14 Wall. 607-613, 20 L. 756, LEARY v. UNITED STATES. Syl. 1 (VII, 831). Charter-party when lease of vessel. Approved in Golcar S. S. Co. v. Tweedie Trading Co., 146 Fed. 569, charter of vessel at monthly hire for vessel and crew, captain ap- pointed by owners to be under charterer's orders, is demise of ship; Grimberg v. Columbia Packers' Assn., 47 Or. 264, 265, 83 Pac. 196, 197, construing charter-party giving charterer sole use of vessel except master's cabin, and providing that no goods shall be laden except for charterer, is not a demise. 14 Wall. 613-620, 20 L. 745, ERSKINE v. HOHNBACK. Syl. 2 (VII, 833), Process — Ministerial officer's liability. Approved in Rush v. Buckley, 100 Me. 329, 61 Atl. 777, 70 L. R. A, 464, holding magistrate issuing warrant and trying case and officer serving warrant not liable for false imprisonment though ordinance violated by plaintiff was void. 36 14 ^Yall. 020-670 Notes on U. S. Eeports. 562 14 Wall. 020-653, 20 L. 860, MOWRY v. WHITNEY. Syl. 2 (VII, 834). Process patent. Approved in Johnson v. Foos Mfg. Co., 141 Fed. 84, Johnson patent No. 506,268, for process and apparatus for separating cotton-sccd and hulls from fiber is valid as to process claim, but void as to mechanical claim. Syl. 2 (VII, 834). Patents — Construction of specifications. Distinguished in Universal Brush Co. v. Sonn, 146 Fed. 520, Mor- rison patent No. 717,014, claim 1 for method of making brushes, is infringed by method of Sonn patent No. 791,510. Syl. 3 (VII, 834). Damages — Profits of infringer of improvement. Approved in Brown v. Lanyon, 148 Fed. 839, action cannot be maintained for sole purpose of recovering profits which infringer of patent has made; New York Bank Note Co. v. Hamilton Bank Note Co., 180 N. Y. 296, 73 N. E. 53, where press manufacturer having agreement not to attach certain device to presses already sold, did so sell, buyer liable for difference between profits made from use of device and those made without it. 14 Wall. 653-661, 20 L. 896, THE KEY CITY. Syl. 3 (VII, 838). Consolidation of corporations — Purchaser with- out notice. See 103 Am. St. Eep. 557, note. 14 Wall. 661-670, 20 L. 757, DELMAS v. MERCHANTS' MUTUAL INSURANCE CO., Syl. 2 (VII, 839). State statute— Contracts— Violation of federal constitution. See 97 Am. St. Eep. 720, not*. XV WALLACE. 15 Wall. 1-3, 21 L. 113, PORTLAND CO. v. UNITED STATES. Syl. 1 (VII, 842). Appeal dismissed where brief not in form. Approved in Fitch v. Eichardson, 147 Fed. 196, following rule. 15 Wall. 3-7, 21 L. 118, DUBUQUE ETC. R. R. CO. v. RICHMOND. Syl. 1 (VIT, 842). Record showing federal question. Approved in Nutt v. Knut, 200 U. S. 19, 50 L. 352, 26 Sup. Ct. 216, following rule. 15 Wall. 9-28, 21 L. 73, DEXTER v. HALL. Syl. 3 (VII, 843). Lunatic's power of attorney is void. Approved in White v. Martin, 2 Alaska, 502, where residence of Fairbanks, who owned property there, became insane and wandered away, there is no presumption of intent to abandon possessory claims on public lands; Weber v. Delia Mountain Min. Co., 11 Idaho, 275, 81 Pac. 934, applying principle where part of stock of controlling member of corporation was obtained from lunatic. Denied in Wolcott v. Connecticut etc. Ins. Co., 137 Mich. 313, 100 N. W. 571, assignment of contract to purchase land by insane person is voidable only. 15 Wall. 36-51, 21 L. 107, SMOOT'S CASE. Syl. 4 (VII, 844.) Refusal to perform contract warranting termina- tion. Approved in McBath v. Jones Cotton Co., 149 Fed. 386, where con- tract called for delivery of goods on or before certain date, and prior to that date part of shipment refused as not up to contract, purchaser could not refuse further offers made prior to date called for in con- tract; Wells v. Hartford Manilla Co., 76 Conn. 34, 55 Atl. 601, where contract provided for certain amount of pulp before certain time, as ordered, and for some time no orders given, and later purchaser telegraphed that no shipments be made, there was no breach war- ranting seller's rescission and suing for damages; Swiger v. Hayman, 56 W. Va. 126, 107 Am. St. Rep. 901, 48 S. E. 840, applying rule where renunciation of contract was retracted before other party had acted on it; Barker etc. Lumber Co. v. Edward Ilines Lumber Co., 137 Fed. 309, arguendo. [563] 15 Wall. 51-94 Notes on U. S. Eeports. 564 15 Wall 51-57, 21 L. 41, KEAENEY v. DENN. Syl. 2 (VII, 846). Conclusiveness of judgment of illegitimacy. Approved in Sorensen v. Sorensen, 68 Neb. 496, 98 N. W. 839, decree on appointment of administrator that mother was not de- cedent's wife is not conclusive on petition for distribution, where petitioner was not party in former proceedings'. 15 Wall. 63-67, 21 L. 45, GRAY v. DARLINGTON. Syl. 1 (VII, 847). Advance in value as gain or profit. Approved in Mercer v. Buchanan, 132 Fed. 508, where owner of stock in manufacturing corporation conveyed stock in trust to pay net income to grantor for life, and then to daughter for life, and after grantor's death company sold plant for fifty per cent cash, and stock in purchasing company equal to six times its capital stock, which was distributed as dividends, dividend was not net income. 15 Wall. 75-77, 21 L. 63, ERSKINE v. VAN ARSDALE. Syl. 3 (VII, 849). Interest on illegal tax collected. Approved in Herold v. Shanley, 146 Fed. 24, affirming 141 Fed. 430, following rule. 15 Wall. 77-94, 21 L. 82, THE YOSEMITE VALLEY CASE (HUTCH- ING S v. LOW). Syl. 1 (VII, 850). Vested rights of settler on public lands. Approved in Oregon etc. R. R. Co. v. Quigley, 10 Idaho, 781, 80 Pac. 403, 404, construing 17 Stat. 612, granting railroad right of way and requiring filing of map of definite location; Graham v. Great Falls etc. Co., 30 Mont. 402, 76 Pac. 811, 812, preferential right given successful claimant under Comp. St. 1901, p. 1392, was not vested right, and his privilege was cut off by 26 Stat. 1098; McDonald v. Union P. Ry. Co., 70 Neb. 350, 97 N. W. 441, state courts cannot compel conveyance of lands subject to homestead entry, to one who has been denied privilege of making such entry by land officials. Syl. 2 (VII, 851). Settler acquires vested right, when. Approved in Russian-American etc. Co. v. United States, 199 U. S. 578, 50 L. 316, 26 Sup. Ct. 157, all rights previously acquired under Comp. St. 1901, pp. 1467, 1468, by settlement and survey of public lands in Alaska, were terminated by President's proclamation reserv- ing land in question for fish culture station; Wallace v. Adams, 143 Fed. 724, upholding 32 Stat. 641, whereby citizenship court created and empowered to review final judgments of United States courts; United States v. Oregon etc. R. Co., 133 Fed. 955, railroad grant ex- empting land granted, reserved or pre-empted, excluded lands upon which pre-emption filed and accepted by land office though lands not paid for; Graham v. Great Falls etc. Co., 30 Mont. 400, 76 Pac. 810, preferential right given successful claimant under Comp. St. 1901, 565 Notes on U. S. Eeports. 15 Wall. 94-105 p. 1392, was cut off by 26 Stat. 1098; Tegarden v. Le Marchel, 129 Fed. 490, arguendo. Distinguished in Eeservation Bank v. Hoist, 17 S. Dak. 246, 95 N. W. 933, 70 L. R. A. 799, where application for homestead was re- turned unacted upon and applicant sowed part of land and mort- gaged crop, and another made homestead thereon and received re- ceiver's certificate and former started contest, latter acquired title to crop. Syl. 5 (VII, 853). Officer's neglect no bar to individual's recovery. Approved in Smith v. Bonifer, 132 Fed. 891, where selection of lands for allotment made by Indian, act of allotment commissioners in wrongfully allotting them to another does not cut off heirs of person entitled. 15 Wall. 94-105, 21 L. 64, CHESAPEAKE ETC. CANAL CO. v. HILL. Syl. 2 (VII, 853). Contracts — Consideration of surrounding cir- cumstances. Approved in United States v. Utah etc. Stage Co., 199 U. S. 423,' 50 L. 255, 26 Sup. Ct. 69, increase in service required on mail route as result of establishment of new distributing station amounting to more than three hundred thousand miles of additional transfer service cannot be acquired without additional compensation; American Bond- ing Co. v. Pueblo Inv. Co., 150 Fed. 27, construing lease and bond; United States etc. Co. v. Board of Commrs., 145 Fed. 148, constru- ing bond to indemnify county for loss suffered through acts of public depository; Luhrig Coal Co. v. Jones etc. Co., 141 Fed. 622, constru- ing contract of sale of coal for future delivery providing for furnish- ing of proportionate number of cars if there were not sufficient cars; Ward V. Foley, 141 Fed. 365, contract by which vendor agrees to sell his interest in three hundred and twenty acres of land at rate of $14 per acre means sale of interest in land at rate of $14 for each acre in entire tract; Stadler v. Missouri River Power Co., 139 Fed. 308, construing lease of lands permitting lessor to flood lands by means of dam as not releasing lessor from damages for flooding other lands owned by plaintiff and not mentioned in lease; Vocalion Organ Co. v. Wright, 137 Fed. 317, construing contract for interest in future inventions; Armour Packing Co. v. Metropolitan Water Co., 130 Fed. 855, 65 C. C. A. 335, where city ordinance granting water franchise provides that rates shall not exceed those charged in ad- joining city in which same company furnished water, it did not include prices charged in such adjoining city after it had bought out corpora- tion's water plant. Syl. 3 (VII, 854). Grant of water as will pass through aperture. Approved in Oakland Woolen Co. v. Union Gas etc. Co., 101 Me. 198, 210, G3 Atl. 920, construing grant of right to take water from 15 Wall. 111-165 Notes on U. S. Eeports. 566 dam for carrying on tannery business; Muscogee Mfg. Co. v. Eagle etc. Mills, 126 Ga. 224, 54 S. E. 1034, arguendo. 15 Wall. 111-123, 21 L. 49, UNITED STATES v. SINGER. Syl. 4 (VII, 856). Duties covered by official bond. Approved in United States v. Kauhoe, 147 Fed. 186, where sureties on postmaster's bond were given extension of time to pay liability by inspector on condition that they execute note for amount' of lia- bility, note was void; National Surety Co. v. United States, 129 Fed. 72, 63 C. C. A. 512, bond of letter-carrier for faithful discharge of duties imposed by law and departmental rules binds surety to faithful discharge of additional duty of receiving letters for registration im- posed by departmental order. 15 Wall. 131-140, 21 L. 69, BOULDIN v. ALEXANDER. Syl. 8 (VII, 859). Judicial inquiry as to expulsion from church. See 100 Am. St. Rep. 738, note. 15 Wall. 146-151, 21 L. 121, MARSHALL v. VICKSBURG. Syl. 1 (VII, 860). Equity does not enforce forfeiture. Approved in Brewster v. Lanyon Zinc Co., 140 Fed. 818, canceling oil and gas lease, where it had been terminated by breach of covenant, but still appeared of record; Duff v. Gilliland, 135 Fed. 585, refusing to cancel contract for assignment of patent in consideration of royalties on ground of breach of contract; Wheeling etc. R. R. Co. v. Town of Triadelphia, 58 W\ Va. 520, 52 S. E. 512, enjoining forfeiture of street railway franchise where municipal officers are acting un- fairly in forfeiture proceedings. 15 Wall. 151-165, 21 L. 123, SHUTTE v. THOMPSON. Syl. 2 (VII, 801). Waiver of statutory right. Approved in Shepard v. Barron, 194 U. S. 567, 48 L. 1120, 24 Sup. Ct. 737, abutting owners who petitioned for street improvement can- not object that front-foot rule denies due process of law; Mutual Life Ins. Co. v. Hill, 193 U. S. 560, 48 L. 794, 24 Sup. Ct. 528, declara- tion in policy that it is to be construed according to New York laws does not make controlling New York law relating to notice of for- feiture for nonpajnnent of premiums where policy contains stipulation as to notice; Womack v. Gross, 135 N. C. 380, 47 S. E. 465, where objections to irregularities in taking of deposition not made till after trial begun, they are waived; United States v. Foreman, 5 Okl. 257, 48 Pac. 98, one suing in territorial district court for money paid for land on which entry was erroneously allowed and afterward cancelea need not show surrender of duplicate receipt and execution of relin- quishment of claims to land as provided by act of 1880; Lone v. Mutual Life Ins. Co., 33 Wash. 581, 74 Pac. 690, where insured paid uo premiums for over twelve years, administrators could not recover 567 Notes on U. S. Keports. 15 Wall. 165-231 on policj, though statute provided against forfeiture for nonpayment notice given prior to day when premium payable. 15 Wall. 165-177, 21 L. 142, DUNCAN v. JAUDON. Syl. 6 (VII, .865). Pledge of trust stock— Notice. Approved in Sternfels v. Watson, 139 Fed. 508, applying rule to mortgage of trust lands; Ford v. Brown, 114 Tenn. 475, 88 S. W. 1038, where certificate of deposit was paj-able to one as "trustee," and he wrongfully indorsed same, indorsee was chargeable with notice of trust character; dissenting opinion in State v. Omaha Nat. Bank, 66 Neb. 915, 93 N. W. 339, majority holding where person having lawful custody of property consents to its receipt or disposition by another, guilty intent is essential element of conversion. Distinguished in Interstate Nat. Bank v. Claxton, 97 Tex. 578, 80 !S. W. 607, 65 L. E. A. 820, where trustee deposits cestui 's money in bank, latter not liable for his misappropriation thereof, though it knew he was violating trust. 15 Wall. 211-231, 21 L. 43, OELEICHS v. SPAIN. Syl. 1 (VII, 871). Equity — Objection of adequacy of law remedy. Approved in Levi v. Mathews, 145 Fed. 154, denying federal juris- diction over offense, where, in action at law to recover money due on contract, answer alleges fraud in procurement of contract. Distinguished in Southern Pac. E. Co. v. United States, 133 Fed. G55, 66 C. C. A. 581, objection to jurisdiction of equity on ground of adequacy of remedy at law, where bill shows equity jurisdiction to grant relief sought, and court has jurisdiction over subject matter, is waived, if not taken by answer to merits. Syl. 3 (VII, 873). Equity— Multiplicity of suits. Approved in Southern Pac. E. Co. v. United States, 133 Fed. 656, 1)6 C. C. A. 581, upholding jurisdiction over suit by government against railroad and others to determine what portion of lauds errou- eously patented to railroad have been sold to bona fide purchaser, and to cancel patents to lands not so sold, and for accounting for moneys received for lands sold; United Cigarette etc. Co. v. Wright, 13- Fed. 197, bill to require accounting from defendant is not multifarious because different and separate transactions growing out of agency are set out, and discovery and accounting demanded as to each; Mutual Life Ins. Co. v. Blair, 130 Fed. 977, upholding equity jurisdiction over suit to cancel for fraud, insurance policy provitling that on insurer's death settlement should be made by issuance of annuity policy to in- sured's wife, annuity payable to wife or her children; Baer v. Fidelity & Deposit Co., 130 Fed. 98, 64 C. C. A. 42S, where bond to secure de- posit as condition of setting aside injunction and appointment of re- ceiver was to indemnify against damage sustained by reason of d<- posit, words "as court might determine" meant court then having jurisdiction of case. 15 Wall. 232-2S2 Notes on U. S. Eeports. 568 Syl. 4 (VII, 874). Equity jurisdiction over trusts. ■ Approved in George v. Wallace, 135 Fed. 292, 68 C. C. A. 40, where assets of insolvent bank placed in hands of trustee for benefit of another bank which assumed debts of first, holder of note execut /d by first bank as part of assumption contract could sue to assert pledge lien without first reducing claim to judgment. Syl. 8 (Vn, 875). Liability on injunction bond. Approved in Sheets v. Hays, 36 Ind. App. Ill, 112, 75 N. E. 22, con- tractor who is admitted as defendant in suit to enjoin county com- missioners from paying him money or completing contract is entitled to benefit of injunction bond. Syl. 10 (VII, 875). Counsel fees not allowed on injunction bond. Approved in Frantz v. Saylor, 12 Okl. 41, 42, 69 Pac. 795, following rule; Lindeberg v. Howard, 146 Fed. 470, 471, attorney's fees ex- pended in obtaining dissolution of injunction not proper element of damages in action on injunction bond. 15 Wall. 232-282, 21 L. 146, CASE OF THE STATE FEEIGHT TAX. Syl. 5 (VII, 878). Object of Congressional regulation of commerce. Approved in Globe Elevator Co. v. Andrew, 144 Fed. 884, Laws Wis. 1905, p. 37, c. 19, as amended in 1905, providing for inspection and grading of grain, is void as to interstate commerce. Syl. 6 (VII, 878). Transportation is constituent part of commerce. Approved in Farris v. Henderson, 1 Okl. 393, 33 Pac. 383, holding void Okl. Stat., c. 3, art. 1, providing for inspection of cattle driven into certain county and providing for collection of certain fees per head. Syl. 11 (VII, 884). State tax on corporate franchises. Approved in New York v. State Board of Tax Commrs., 199 U. S. 40, 105 Am. St. Eep. 701, 50 L. 76, 25 Sup. Ct. 715, New York special franchise tax does not impair obligation of contract by which state or city granted right to construct and operate street railway in con- sideration of percentage of gross earnings; State v. Savage, 65 Neb. 747, 91 N. W.721, in assessment of railroad and telegraph prop- erties, board of equalization should include value of franchises. Syl. 15 (VII, 885). Exclusive congressional regulation of national commerce. Approved in Globe Elevator Co. v. Andrew, 144 Fed. 879, 883, Laws Wis. 1905, p. 37, c. 19, as amended in 1905, providing for inspection a.nd grading of grain, is void. 569 . Notes on U. S. Eeports, 15 Wall. 284-328 15 Wall. 284 299, 21 L. 164, STATE TAX OX RAILWAY GROSS RECEIPTS (READING R. R. CO. v. PENNSYLVANIA). Syl. 1 (VII, 887). What is regulation of commerce. Approved in Howard v. Illinois Central Ry. Co., 148 Fed. 1001, hold- ing void 34 Stat. 232, c. 3073, making carriers liable to employees for damages by reason of negligence; Noble v. Amoretti, 11 Wyo. 252, 71 Pac. 881, state tax on stock of goods licensed Indian trader, located on reservation, is not regulation of commerce with Indians; dissenting opinion in People v. Miller, 178 N. Y. 205, 70 N. E. 476, earnings of domestic corporation, whose sole business is transportation of products from other states to this state, and vice versa, are not subject to franchise tax. Syl. 4 (Vn, 889). State tax on imports after package broken. Distinguished in Southern Ry. Co. v. Greensboro etc. Coal Co., 134 Fed. 92, where cars of coal shipped from one state into another, state railroad corporation commission cannot order railroad to place them on certain tracks for unloading. Syl. 6 (VII, 891). State tax on corporate franchises. Approved in New York v. State Board of Tax Commrs., 199 U. S. 40, 105 Am.' St. Rep. 701, 50 L. 76, 25 Sup. Ct. 715, New York special franchise tax does not impair obligation of contract by which state or city granted right to construct and operate street railway in con- sideration of percentage of gross earnings; State v. Savage, 65 Neb. 747, 91 N. W. 721, in assessment of railroad and telegraph properties, board of equalization should include value of franchises. 15 Wall. 300-328, 21 L. 179, STATE TAX ON FOREIGX-IIELD BONDS (CLEVELAND ETC. RAILROAD CO. v. PENNSYL- VANIA). Syl. 2 (VII, 892). State's taxing power limited to territorial jurisdiction. Approved in Union etc. Transit Co. v. Kentucky, 199 U. S. 202, 204, 50 L. 153, 26 Sup. Ct. 36, state taxation of rolling stock of domestic corporation permanently located in other states and there employed denies due process of law; Goodsite v. Lane, 139 Fed. 594, under Ohio St. 1890, § 2731, taxing all property in state and all moneys, credits or investments in stocks or otherwise of residents, where trust estate and beneficiaries were both outside of state, estate not taxable though trustee resident of state where he did not act as trustee in state; Buck V. Beach, 164 Ind. 41, 108 Am. St. Rep. 272, 71 N. E. 965, where New Yorker loaned money in Ohio secured by mortgages on property there situated, and notes and mortgages were kept by agent in Indiana, they were taxable in Indiana; Metropolitan Life Ins. Co. v. Board of Assessors, 115 La. 706, 39 So. 849, arguendo. 15 Wall. 328-355 Notes on U. S. Eeporta. 570 Syl. 3 (VII, 893). Limits of state taxing power. Approved in Carstairs v. Cochran, 193 U. S. 16, 48 L. 597, 24 Sup. Ct. 318, upholding state tax on liquors in bonded warehouse under statute requiring warehousemen to pay tax, and giving them lien on property therefor; State v. Western Union Tel. Co., 96 Minn. 23, 104 N. W. 572, upholding Laws 190, c. 180, p. 251, providing for taxation of tangible and intangible property of telegraph companies situated in state, as system; People v. Wells, 184 N. Y. 279, 77 N. E. 20, where foreign corporation maintained office in state for sale of its products, which are sold in original package, and took bills receivable, which are held in state until maturity and proceeds re- mitted to home office, bills are taxable. Syl. 5 (VII, 894). Debts taxable at situs of creditor. Approved in Pennsylvania etc. Ins. Co. v. Meyer, 197 U. S. 416, 49 L. 815, 25 Sup. Ct. 483, cause of action on insurance policy issued by foreign company arises within state within meaning of statute relat- ing to service of summons on foreign corporations, where property there situated and loss was adjustable there; Buck v. Beach, 1G4 Ind. 42, 51, 108 Am. St. Rep. 272, 71 N. E. 965, 968, where New Yorker loaned money in Ohio, secured by mortgages on property there situated, and notes and mortages were kept by agent in Indiana, they were taxable in Indiana; State ex rel. Louisiana Imp. Co. v. Board of Assessors, 111 La. 999, 36 So. 97, municipal certificates of indebtedness are not sub- ject to taxation; Commonwealth v. Williams, 102 Va. 785, 47 S. E. 869, under Code 1887, §§ 491, 492, relating to assessment of personalty, shares of stock are located at domicile of creditor, though evidence of same be without jurisdiction of court, Syl. 6 (VII, 896). State tax on bonds held by nonresident. Qualified in State v. Fidelity etc. Co., 35 Tex. Civ. 218, 80 S. W. 547, municipal securities deposited by foreign corporation in accordance with state statute are taxable in state. Syl. 9 (VII, 897). Taxation of mortgage held by nonresident. Approved in Adams v. Colonial etc. Mortg. Co., 82 Miss. 397, 100 Am. St. Ecp. 633, 34 So. 530; loan made by nonresident is not taxable in state though negotiations for it made in state, and it is secured by mortgage on land in state. 15 Wall. 328-337, 51 L. 35, FOWLER v. RAPLEY. (VII, 898.) Miscellaneous. Cited in State ex rel. Louisinna Imp. Co., V. Board of Assessors, 111 La. 995, 36 So. 96, discussing situs of bonds for purposes of taxation. 15 Wall. 337-355, 21 L. 89, UNITED STATES v. THOMAS. Syl. 7 (VII, 900). Liability on bond of public depository. Approved in Johnson v. Fleming, 116 Ky. 682, 50 S. W. S55, where court has failed to select bank as depository, commissioner is liable 571 Notes on U. S. Kcports. 15 Wall. 355-377 only for ncgligonce in selection of bank for deposit of money paid into court. Syl. 9 (VII, 901). Official bonds — Moneys taken by public enemy. Distinguished in Van Trees v. Territory, 7 Okl. 363, 369, 54 Pac. 498, 500, fact that county moneys deposited in solvent bank which subsequently failed, resulting in loss to county without fault of treasurer, is no defense to action on bond. 15 Wall. 355-373, 21 L. 170, GEAND CHUTE v, W^INEGAR. Syl. 1 (VII, 903). Direction of verdict. Approved in Gunn v. Union R. R. Co., 27 R. I. 32G, 62 Atl. 120, upholding Gen. Laws 1896, c. 251, § 11, authorizing supremo court to direct judgment without further trial by jury. 15 Wall. 373 377, 21 L. 174, GRAND CHUTE v. WINEGAR. Syl. 1 (VIT, 905). When party deprived of jury. Approved in Ames Realty Co. v. Big Indian Min. Co., 146 Fed. 176, Civ. Code Mont., § 1891, providing that in actions for protection of water rights all parties who divert water from same stream may be made parties and court may settle rights of all, is enforceable in federal equity court; General Elec. Co. v. Westinghouse Elec. & Mfg. Co., 114 Fed. 466, refusing to restrain violation of contract for man- ufacture and sale of goods which provides for payment of fifty per cent of regular sale price as liquidated damages in case of breach; Allen V. Myers, 1 Alaska, 117, denying equity jurisdiction over suit to quiet title after applicant for patent has initiated proceedings in land office; American Lighting Co. v. Public Service Corp., 134 Fed. 131, refusing to punish as contempt violation of restraining order against violation of lighting contract. Syl. 2 (VII, 905). Adequacy of law remedy — Restraining suit on bonds. Approved in Scottish Union etc. Ins. Co. v. Bowland, 196 U. S. 633, 49 L. 628, 25 Sup. Ct. 345, refusing to enjoin prosecution of suits against foreign corporation for recovery of personal property taxes, on ground that corporation is not personally liable therefor; Glenn v. West, 103 Va. 524, 49 S. E. 672, holder of equitable title, out of posses- sion, cannot sue to quiet title possessor under tax title, between whom and himself there is no privity; dissenting opinion in Barnes v. Newton, 5 Okl. 458, 460, 49 Pac. 1080, 1081, majority holding successful party in contest before Land Department may enjoin adversary from further interfering with his possession. Distinguished in Ritterhoff v. Puget Sound Nat. Bank, 37 Wash. 82, 107 Am. St. Rep. 791, 79 Pac. 602, refusing to restrain collection of note or to declare it void where complainant alleges it is forged. 15 Wall. 377-426 Notes on U. S. Eeports. 572 15 Wall. 377-379, 21 L. 176, KIMBALL v. WEST. Syl. 2 (VII, 907). Eoscission of executed sale. Approved in Lynch v. United States, 13 Okl. 145, 73 Pac. 1097, re- fusing to cancel land patent for fraud in procurement where govern- ment not injured. Syl. 3 (VII, 907). Rescission — Compensation for defective title. Approved in Kentucky Distilleries etc. Co. v. Blanton, 149 Fed. 41, decreeing specific performance where slight defects in title re- moved before decree. 15 Wall. 384-387, 21 L. 131, EX PAETE EGBERTS. Syl. 1 (VII, 908). Eevocation of allowance of appeal. Approved in Mackenzie v. Pease, 146 Fed. 744, circuit court of appeals may vacate order allowing appeal inadvertently entered. Syl. 2 (VII, 908). Mandamus to hear and decide new trial. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 954, 956, 67 L. E. A. 761, 66 C. C. A. 55, granting mandamus to command circuit judge to vacate order staying proceedings pending state court appeal; In re Dowd, 133 Fed. 751, arguendo. 15 Wall. 401-410, 21 L. 114, WASHINGTON ETC. RAILROAD CO. V. GLADMON. Syl. 2 (VII, 910). Burden of proving contributory negligence. Approved in Armour v. Carlas, 142 Fed. 722, upholding refusal to direct verdict for defendant in action for injuries caused by collision between two teams: Wabash Ey. Co. v. De Tar, 141 Fed. 934, applying rule to instructions as to presumption of due care used by traveler injured at railroad crossing; The Nellie, 730 Fed. 215, applying rule where vessel injured by submerged pile near wharf; Southern Pac. Co. V. Tomlinson, 4 Ariz. 134, 33 Pac. 712, applying rule in action for wrongful death at railroad crossing. Syl. 3 (VII, 912). Negligence — Care required of infant. Approved in Mundhenke v. Oregon City Mfg. Co., 47 Or. 133, 81 Pac. 979, 1 L. E. A. (N. S.) 278, question whether servant of im- mature years assumed risk of exposed gearing and slippery floor is for jury; Dubiver v. City Ey. Co., 44 Or. 236, 74 Pac. 918, applying rule where child of fifteen years injured by collision between street- car and wagon which he was driving. 15 Wall 410-426, 21 L. 198, TIFFANY v. LUCAS. Syl. 1 (VII, 914). Sale within six months of bankruptcy. Approved in Empire State Trust Co. v. Fisher Co., 67 N. J. Eq. 100, 57 Atl. 507, holding company executing mortgage to creditojt 573 Notes on U. S. Keports. 15 Wall. 427-470 was not insolvent at time of its execution, though it was adjudged bankrupt one month afterward. Distinguished in In re Pease, 129 Fed. 451, 452, where trust com- pany through its attorney, who also represented some creditors of bankrupt, made loan with which he paid some creditors, including clients of attorney, in full, and loan was secured by chattel mortgage on stock under which lender sold it mortgage was void as preference. 15 Wall. 427-429, 21 L. 177, GEAHAM v. NORTON. Syl. 1 (VII, 915). Federal mandamus to state officer. Approved in United States v. Norfolk etc. Ry. Co., 138 Fed. 851, denying mandamus at suit of shipper to compel interstate railroad to make equitable distribution of cars as per contract. 15 Wall. 429-439, 21 L. 200, CITY OF RICHMOND v. SMITH. Syl. 1 (VII, 915). Waiver of jury in civil action. Approved in Swift & Co. v. Jones, 145 Fed. 494, circuit court, in action at law, cannot even by consent of parties order trial before special master authorized to hear and pass on issues of fact and re- port findings to court. 15 Wall. 439-449, 21 L. 224, HANAUER v. WOODRUFF. Syl. 1 (VII, 916). Consideration for note — Bonds of Confederate state. Approved in dissenting opinion in Mouahan v. Monahan, 77 Vt. 151, 59 Atl. 174, 70 L. R. A. 935, majority holding complaint seeking to impress securities with trust and alleging that they were taken in defendant's name without his knowledge cannot be denied re- lief because securities put in defendant's name to avoid taxation. 15 Wall. 454-459, 21 L. 204, TOMLINSON v. .JESSUP. Syl. 4 (VII, 918). Charter reservation of right to alter. Approved in Prewitt v. Security etc. Ins. Co., 119 Ky. 328, 83 S. W. 613, upholding Ky. St. 1903, § 631, providing for revocation of authority of foreign insurance company to do business in state if it removes suit to federal court. Syl. 5 (VII, 919). Charter reservation — Repeal of tax exemption. Distinguished in Omaha Water Co. v. City of Omaha, 147 Fed. 6, where city contractor for construction and operation of waterworks for term, and ordinance fixed maximum rates, it could not reduce specified rates. 15 Wall. 460-470, 21 L. 189, TOMLINSON v. BRANCH. Syl. 1 (VII, 920). Privileges on consolidation of corporations. Distinguished in .lones v. Missouri-Edison Elec. Co., 144 Fed. 775, 776, where holders of majority of stock of corporation, against pro- 15 Wall. 471-523 Notes on U. S. Eeports. 574 test of owners of majority of preferred stock, consolidated with corporation whose stock was owned by majority, and ratio of pre- ferred stock to assets as thereby reduced, minority eould attack consolidation for fraud. Syl. 2 (VII, 921). Tax exemption — Consolidation of corporations. Approved in Lee v. Atlantic etc. R. Co., 150 Fed. 790, where Vir- ginia railroad was consolidated and merged with another under agree- ment providing that stock of latter canceled and stock of former issued in its place, agreement was merger and not consolidation. 15 Wall. 471-477, 21 L. 58, PROUT v. EOBY. ■ Syl. 8 (VII, 924). Re-entry by land for nonpayment of rent. Approved in American Bonding Co. v. Pueblo Inv. Co., 150 Fed. 21, surrender between rent days releases tenant and his sureties for rent to accrue but not as to rent due arid accrued. 15 Wall. 478-499, 21 L. 98, MILLER v. STATE. Syl. 4 (VII, 925). Reserved power to alter corporate charter. Approved in McKee v. Chautauqua Assembly, 130 Fed. 540, 65 C. C. A. 8, upholding act consolidating corporations whose management has been in board of trustees of one of them. 15 Wall. 500-523, 21 L. 133, HOLYOKE WATER POWER CO. v. LYMAN. Syl. 2 (VII, 926). Right of fishery subject of ownership. Approved in De Wilt v. Bissell, 77 Conn. 536, 60 Atl. 144, 69 L. R. A. 933, where in natural use of millpond it is necessary in sum- mer to draw water so that portions of bottom are exposed, pur- chasers of property near pond cannot object to such use on account of odors. Syl. 5 (VII, 927). Ambiguous grants construed in favor of public. Approved in Knoxville Water Co. v. Knoxville, 200 U. S. 34, 50 L. 359, 26 Sup. Ct. 227, municipal grant of waterworks franchise does not devest city of power to construct own system; Minnesota Canal etc. Co. V. Koochiching Co., 97 Minn. 435, 107 N. W. 407, in pro- ceedings to condemn private property all reasonable doubts as to au- thority are resolved in favor of land owner. Syl. 7 (VII, 927). Right to regulate fisheries. Approved in People v. Bootman, 180 N. Y. 9. 72 N. E. 507. uphold- ing power of state to make possession of imported game unlawful. 575 Notes on U. S. Keports. 15 Wall. 524-549 15 Wall. 524-539, 21 L. 206, THE NITRO-GLYCEEINE CASE. Syl. 2 (VII, 929). Presumption as to carrier's knowledge of pack- ages. Approved in Clark v. Missouri etc. Ej. Co., 179 Mo. 94, 77 S. W. 890, common carrier is not chargeable with notice that Texas cattle carried by it are dangerous and vicious and liable to injure servants. Syl. 3 (VII, 929). Negligent handling by carrier — Knovfledge of contents. Approved in Skinn v. Reutter, 135 Mich. 59, 106 Am. St. Rep. 384, 97 N. W. 153, 63 L. R. A. 743, purchaser of hogs from dealer, who bought and sold them to him without knowledge of their dis- eased condition, may recover of original seller for death of own hogs which he placed with diseased ones. Syl. 4 (VII, 930). Injury to passenger prima facie negligence. See 113 Am. St. Rep. 988, note. Syl. 6 (VII, 930). Burden of proving negligence. Approved in Greeley v. Foster, 32 Colo. 299, 75 Pae. 353, no pre- sumption of negligence arises from accident to city employee ex- cavating trench in street; Chicago etc. R. R. Co. v. Reilly, 212 111. 511, 103 Am. St. Rep. 243, 72 N. E. 455, where one standing at cross- ing is injured by scantling projecting from passing flat-car, negli- gence of railroad not presumed; East Tennessee etc. R. R. Co. v. Lindamood, 111 Tenn. 463, 78 S. W. 100, applying rule in action for injuries to brakeman caused by alleged defects in brakes. See 113 Am. St. Rep. 1005, note. Syl. 7 (VII, 931). Negligence — Measure of care against accident. Approved in Southern Ry. Co. v. Chatman. 124 Ga. 1036, 53 S. E. 697, determining liability of railroad for accident at street crossing; Johnson v. Union Pac. Coal Co., 28 Utah, 51, 76 Pac. 1090, 67 L. R. A. 506, employer building track in mine shaft who lowers rails with- out fastening them to ear so that one fell over side and injured employee working at bottom, is liable, in absence of proof, that mode of work was as safe as mode in general use; Globe Nav. Co. v. Mary- land Casualty Co., 39 Wash. 308, 81 Pac. 829, where surety agreed to indemnify vessel owners against damages for injuries suffered by employees through owner's negligence, and judgment against own- ers was based on failure to supply medical assistance, surety could not set up ignorance of facts exempting it from liability where it had copy of complaint in suit. 15 Wall. 547-549, 21 L. 231, HANNEWINKLE v. GEORGETOWN. Syl, 1 (VII, 932). Restraining collection of illegal tax. Approved in Devine v. Los Angeles, 202 U. S. 335, 50 L. 1054, 26 Sup. Ct. 652, verbal assertions of ownership do not constitute cloud 15 Wall. 549-573 Notes on U. S. EeportB. 576 on title, which equity will remove; Illinois Life Ins. Co. v. Newman, 141 Fed. 451, denying power of federal equity court to enjoin col- lection of state tax on ground of its illegality, though such power is conferred in state courts. Syl. 3 (VII, 933). Cloud on title — Void tax sale. Approved in Ashburn v. Graves, 149 Fed. 972, refusing to cancel deed void on its face as cloud on title. 15 Wall. 549-552, 21 L. 232, EIGGIN v. MAGUIEE. Syl. 1 (VII, 933). Contract liability provable in bankruptcy. Approved in In re Ellis, 143 Fed. 106, subcontractor has no prov- able claim against contractor under Bankr. Act., c. 541, § 59b, for work for which contractor has not been paid by owner, where con- tract provides that contractor's liability does not accrue till con- tractor paid; In re Pettingill, 137 Fed. 146, claim based on liability of bankrupt on guaranty executed by him of payment by corporation of certain rate of dividends on stock held by another is not provable debt as to dividends not due at time of bankruptcy; Conklin v. United States Shipbuilding Co., 136 Fed. 1008, surety on bond of insolvent corporation has no claim provable as debt in insolvency proceedings against corporation merely because of pendency of suit on bond; Dight v. Chapman, 44 Or. 272, 75 Pac. 587, 65 L. E. A. 793, where there was decree establishing indebtedness of corporation and awarding recovery against it for that amount and against stockhold- ers for their proportion of capital stock, decree as against nonresident stockholder not party to suit, made liability debt provable on his subsequent bankruptcy. 15 Wall. 552-555, 21 L. 60. FEOW v. DE LA VEGA. Syl. 1 (VII, 935). Decree against one joint defendant pending suit. Approved in First Baptist Church v. Harper, 191 Mass. 210, 77 N. E. 781, where, under E. Laws, c. 182, §§ 6-10, certain defendants to bill to quiet title failed to appear and no interlocutory decree taking bill pro confesso was ordered case not ready for final disposition. 15 Wall. 562-566, 21 L. 250, YOUNG v. GODBE. Syl. 3 (VII, 936). Interest, when recoverable. Approved in Harding v. York Knitting Mills, 142 Fed. 229, allow- ing interest on claim for goods sold on definite term of credit. 15 Wall. 566-573, 21 L. 251, POLICE JUEY v. BEITTON. Syl. 1 (VII, 937). Negotiable refunding securities. Approved in Glass v. Parish of Concordia, 113 La. 554, 37 So. 192, following rule. 577 Notes on U. S. Eeports. 15 Wall. 573-624 Syl. 2 (VII, 937). Municipalities maj incur debts through con- tracts. Approved in Luther v. Wheeler, 73 S. C. 91, 52 S. E. 876, where town of less then one thousand inhabitants under municipal resolu- tion gave note for money used for necessary public building, it is invalid, but holder may recover of town amount received and used as money had and received. Syl. 3 (VII, 937). Municipal contracts creating debts subject to equities. Approved in Morrison v. Austin State Bank, 213 111. 484, 104 Am. St. Eep. 225, 72 X. E. 1113, municipal warrants, though negotiable in form, are not within rule guarding commercial paper in hands of bona fide purchaser. Syl. 5 (VII, 937). Issuance of negotiable parish bonds. Cited in Glass v. Parish of Concordia, 113 La. 547, 37 So. 189, arguendo. 15 Wall. 573-580, 21 L. 229, PAKTKIDGE v. THE INSURANCE CO. Syl. 1 (VII, 940). Parol to incorporate custom into contract. Approved in Harding v. Cargo etc. of Coal, 147 Fed. 976, provision in charter-party for ship to carry coal, "vessel to have turn in load- ing," does not make port custom to give steamers preference in filling bunkers part of contract, where custom unknown to parties; Lillard V. Kentucky Distilleries etc. Co., 134 Fed. 182, 67 C. C. A. 74, evi- dence of custom is admissible to show that contract to deliver dis- tillery slop at distiller's cattle-feeding lot, contemplated compliance with custom to supply lot with pens and troughs. Syl. 3 (VII, 940). State rules of setoff in federal courts. Distinguished in Anglo-American etc. Co. v. Lombard, 132 Fed. 732, 68 C. C. A. 89, in federal action at law to enforce stockholder's statu- tory liability defendant cannot set off indebtedness from corporation to him. 15 Wall. 580-591, 21 L. 236, MUTUAL LIFE INS. CO. v. TERRY. Syl. 4 (VII, 941). Insurance — Suicide while insane. Approved in Knapp v. Order of Pendo, 36 Wash. 606, 79 Pac. 211, following rule. 15 Wall. 610-624, 21 L. 212, GUNN v. BARRY. Syl. 3 (VII, 944). Remedies as part of contract obligation. Approved in Ex parte Goldsmith, 68 S. C. 538, 47 S. E. 987, de- termining right of widow in balance of proceeds of mortgage fore- closure on lands which they had abandoned as home. 37 15 Wall. 643-649 Notes on U. S. Keporta. 578 Syl. 5 (VII, 946). Statute increasing amount of exempt property. Approved in Welsh v. Cross, 146 Cal. 633, 106 Am. St. Eep. 63, 81 Pac. 233, amendment of 1897 to Code Civ. Proc, § 702, extend- ing time for redemption from execution sale, is void as to judg- ments existing at time of its passage. Distinguished in Lewis v. Goldthwaite Nat. Bank, 36 Tex. Civ. 440, 81 S. W. 799, Laws 1897, p. 131, c. 101, exempting from garnishment for six months after sale proceeds of voluntary sale of homestead, applies to debts existing prior to its passage. (VII, 944.) Miscellaneous. Cited in In re Mullen, 140 Fed. 206, bankrupt who is registered hunting guide under Maine laws, is en- titled, under Kev. St. Me., c. 83, § 64, par. 6, to exemption of canoe but not to rifle. 15 Wall. 643-649, 21 L. 244, CAMMACK v, LEWIS. Syl. 1 (VII, 948). Life insurance — Wager policy. Approved in Gould v. New York Life Ins. Co., 132 Fed. 931, where bankrupt's life policy, payable to his administrator, had no sur- render value, and his trustee allowed it to lapse by failing to pay ]iremium, on bankrupt's death, policy passed to administrator; Gor- don V. Ware Nat. Bank, 132 Fed. 446, 67 L. E. A. 550, 65 C. C. A. 580, purchaser of policy from pledgee thereof takes good title to pol- icy and its proceeds though he has no insurable interest in in- sured's life; Metropolitan etc. Ins. Co. v. Elison, 72 Kan. 204, S3 Pac. 412, 3 L. R. A. (N. S.) 934, assignment of half-interest in pol- icy to one having no insurable interest, in consideration that as- signee pays premiums, is void. Distinguished in Mechanics' Nat. Bank v. Comins, 72 N. H. 19, 101 Am. St. Eep. 650, 55 Atl. 195, upholding assignment of life pol- icy to one having no insurable interest where assignment bona fide. Syl. 2 (VII, 948). Assignment of life policy to creditor of assured, Approved in Wilton v. New York Life Ins. Co., 34 Tex. Civ. 158, 78 S. W. 404, niece having no expectation of pecuniary benefit from uncle further than probability of occasional gift has no insurable in- terest in his life. Distinguished in Hinton v. Mutual Reserve etc. Life Assn., 135 N. C. 323, 102 Am. St. Rep. 545, 65 L. E. A. 161, 47 S. E. 477, where policy payable to estate of insured was secured under agreement between insured and one having no insurable interest tliat latter would pay premiums and take proceeds, and policy was assigned to him. he could not sue on it as administrator. 579 Notes on U. S. Eeports. 15 Wall. 649-671 15 Wall. 649-660, 21 L. 220, NEW ORLEANS EAILROAD CO. v. BANNING. Syl. 2 (VII, 950). Liability of principal for agent's acts. Approved in Arthur v. Texas etc. Ry. Co., 139 Fed. 131, where railroad gave receipt for cotton delivered by plaintiff to independent compress company on compress receipt, and cotton burned while on compress company's platform, railroad not liable for negligence of compress company. Syl. 3 (VII, 951). Master and servant — Contract to furnish labor. Distinguished in Kelleher v. Schmidt & Henry Mfg. Co., 122 Iowa, 638, 98 N. W. 483, when manufacturing corporation let out part of work to firm, which occupied part of corporation's building and used its machinery, but controlled its own employees, corporation not lia- ble for injuries to employee of firm. 15 Wall. 664-671, 21 L. 246, MERCHANTS' ETC. INSURANCE CO. V. LYMAN. Syl. 3 (VII, 952). Parol to show prior parol insurance contract. Approved in Connecticut Fire Ins. Co. v. Buchanan, 141 Fed. 889, 892, applying rule where policy provided for cancellation if occu- pants be changed or use be changed, and use of building as normal school had been suspended at time of loss and new school tenant had not taken possession. Syl. 5 (Vn, 952). Merger of prior negotiations in writings. Approved in Young v. St. Paul etc. Ins. Co., 68 S. C. 390, 47 S. E. 682, following rule; Liverpool etc. Ins. Co. v. Richardson Lumber Co., 11 Okl. 581, 601, 69 Pac. 936, 943, fact that local and state agents examined property and knew its situation is no waiver of written clauses in policy. XVI WALLACE. 16 Wall. 1-6, 21 L. 491, DATE v. UNITED STATES. Syl. 1 (VII, 954). Surety — Bond to be executed bv others. Approved in City of Butte v. Cook, 29 Mont. 95, 74 Pac. 69, where names of two sureties appear in body of bond, which is signed by one only, surety signing may defend on ground that liability was conditioned on cosurety signing; Eollins v. Ebbs, 138 N. C. 146, 147, 153, 50 S. E. 579, 581, where sureties in guardian's bond from which penalty was omitted, gave it to another for deliver}'-, and when filed penalty was inserted, sureties estopped to assert its invalidity; Baker County V. Huntington, 46 Or. 282, 283, 79 Pac. 190, 191, where sher- iff's bond did not show sheriff's name as principal and name of only one of six signing sureties appeared in body, and entries opposite names showed they had signed only for $7,000, whereas bond called for $10,000, sureties could deny sheriff's want of authority to deliver bond. Syl. 2 (VII, 956). Estoppel — Contradiction injuring others. Approved in Newman v. Scarborough, 115 La. 866, 40 So. 250, where person signs guaranty thinking it is for eleven hundred dollars, when in reality it is for so many thousands, guaranty is binding only for eleven hundred. 16 Wall. 6-16, 21 L. 272, LYNDE v. WINNEBAGO COUNTY. Syl. 1 (VII, 956). Special tax levy for courthouse. Approved in Thcis v. Commissioners of Washita Co., 9 Okl. 650, 60 Pac. 508, under Stat. 1890, where county commissioners are au- thorized by vote of people to construct bridges and levy tax for snch purpose, they may make contract therefor and issue warrants in pay- ment thereof in anticipation of fund. Syl. 4 (VII, 958). Absent judge not functus officio. Approved in Watkins v. Mooney, 114 Ky. 656, 71 S. W. 625, presi- dent of board of aldermen cannot appoint police commissioner while mayor was absent for day at another town twenty-five miles away. 16 Wall. 36-130, 21 L. 394, SLAUGHTER-HOUSE CASES. Syl. 3 (VII, 900). Extent of police power. Approved in Bland v. People, 32 Colo. 323, 105 Am. St. Rep. 80, 76 Pac. 360, 65 L. B. A. 424, upholding Laws 1899, p. 175, prohibiting [580i 581 Notes on U. S. Reports. 16 Wall. 36-130 use ©f unregistered docked horses; State v. Eobb, 100 Me. 186, 60 Atl. 876, upholding city ordinance giving exclusive privilege of col- lecting garbage to persons specially appointed; Squire v. Tellier, 185 Mass. 20, 102 'Am. St. Eep. 322, 69 N. E. 313, upholding Stat. 1903, p. 389, providing that sale of stock goods is void as to creditors un- less inventory made and buyer notify creditors; O'Neil v. State, 115 Tenn. 444, 90 S. W. 631, upholding Acts 1901, p. 115, prohibiting practice of medicine without license, as applied to one who diagnosed diseases by microscopic examination of drop of blood and treated them by electric lights; dissenting opinion in "Wright v. Hart, 182 N. Y. 354, 75 N. E. 413, 2 L. R. A. (N. S.) 338, majority holding void Laws 1902, p. 1249, making sale of stock of merchandise in bulk, fraudulent as to creditors unless seller makes inventory five days prior to sale and buyer notifies creditors. Syl. 4 (VII, 962). Police power exclusive in states. Approved in Ex parte Dick, 141 Fed. 7, where government has conveyed lands within state ceded to it by Indians, and lands have passed to individuals and municipality of state formed thereon, they are not subject to laws against introduction of liquor into Indian country. Syl. 5 (VII, 962). Police power — Slaughter monopoly. Approved in Leigh v. Green, 193 U. S. 89, 101 Am. St. Rep. 606, 48 L. 627, 24 Sup, Ct. 390, holder of lien on realty not denied due process b}^ lack of personal service of notice of proceeding in rem to enforce tax sale purchaser's lien whose notice is given by publi- cation; Grainger v. Douglas Park Jockey Club, 148 Fed. 521, 522, 523, 529, 542, upholding Act Ky. March 26, 1906, creating state racing commission and giving it exclusive control over regulation of racing of running horses; O'Reilly De Camara v. Brooke, 135 Fed. 388, 389, where Spanish subject owned perpetual exclusive right to slaughter of cattle in Havana under Spanish grant, franchise was private prop- erty protected by Spanish treaty; State v. Robb, 100 Me. 188, 60 Atl. 877, upholding municipal ordinance giving exclusive privilege of collecting garbage to persons specially appointed. Distinguished in "White v. Holman, 44 Or. 184, 74 Pac. 934, Laws 1903, p. 238, creating sailor's boarding-house commission with power to license or reject applicants, does not authorize grant of but one license so as to create monopoly. Syl. 7 (VII, 904). Involuntary servitude includes peonage. Approved in Clyatt v. United States, 197 U. S. 218, 49 L. 730, 25 Sup. Ct. 429, upholding Rev. St., §§ 1990, 5526, prohibiting peonage in any state or territory; Ex parte Riggins, 134 Fed. 406, 407, 423, negro in charge of sheriff who is taken out and lynched by con- spirators because of his race is denied rights and privileges secured 16 Wall. 36-130 Notes on U. S, Reports. 582 by constitntion: United States v. Moore, 129 Fed. 634, denying fed- eral jurisdiction to punish conspiracy to oppress citizen to prevent his forming miners' union, in furtlierance of which he was assaulted. Syl. 8 (VII, 965). Construction of constitutional amendments. Approved in Pope v. Williams, 98 Md. 71, 103 Am. St. Rep. 379, 56 Atl. 545, 66 L. R. A. 398, upholding Acts 1902, p. 204, providing no one coming from another state shall register as voter until one year after declaration of intention. Syl. 9 (VII, 965). Fourteenth amendment — Citizenship of United States. Approved in In re Heff, 197 U. S. 504, 49 L. 855, 25 Sup. Ct. 506, Indian allottee, on receipt of first patent under 24 Stat. 388, c. 119, is within provision of § 6, of that act, subject to laws of state where he resides; Pope v. Williams, 98 Md. 67, 103 Am. St. Rep. 379, 56 Atl. 544, 66 L. R. A. 398, upholding Acts 1902, p. 204, providing that no one coming from another state shall register as voter until one year after declaration of intention. Syl. 11 (VII, 9G6). Privileges and immunities of citizens. Approved in United States v. Moore, 129 Fed. 635, denying federal jurisdiction to punish conspiracy to oppress citizen to prevent him from forming miners' union, in furtherance of which he was as- saulted; Sanders v. Commonwealth, 17 Ky. 6, 111 Am. St. Rep. 221, 77 S. W. 359, 1 L. R. A. (N. S.) 932, upholding Ky. St. 1899, § 1274, prohibiting sale of milk from cows fed on "still slop." Syl. 15 (VII, 969). Due process — Slaughter-house monopoly. Approved in In re Zehizhuzza, 147 Cal. 335, 81 Pac. 958, upholding Oakland ordinance giving city exclusive right to remove garbage and providing fee for removal thereof, recoverable by civil action. Syl. 18 (VII, 970). Extent of police power. Approved in Block v. Schwartz, 27 Utah, 405, 76 Pac. 28, holding void act of 1901, regulating sales of stocks of merchandise in bulk; State v. Brown, 37 Wash. 100, 107 Am. St. Rep. 798, 79 Pac. 636, 68 L. R. A. 889, holding void Laws 1891, p. 314, requiring examination and license by dental board before one may own, run or manage dental office; In re Aubrey, 36 Wash. 315, 104 Am. St. Rep. 952, 78 Pac. 902, holding void Sess. Laws 1901, p. 116, providing for ex- amination and registration of horseshocrs in certain cities. Syl. 22 (VII, 971). Scope of guaranty of life and pi-opcrty. Approved in Martell v. White, 185 Mass. 263, 102 Am. St. Rep. 341, 69 N. E. 1089, where manufacturers formed association, by-law of which provided for assessment of members doing business with non- members, and plaintiff's business thereby ruined, members were lia- 583 Notes on U. S. Reports. 16 Wall. 130-177 ble; State v. Chapman, 69 N. J. L. 466, 55 Atl. 95, upholding Pub, Law, 1898, p. 119, regulating practice of dentistry: Schnaier v. Xa- varre Hotel etc. Co., 182 N. Y. 89, 108 Am. St. Eep. 790, 74 N. E. 562, 70 L. R. A. 722, holding void Laws 1896, p. 1052, prohibiting firms in New York from engaging as master plumbers unless each member is registered after examination. (VII, 960.) Miscellaneous. Cited in Ex parte Moebus, 137 Fed. 156, upholding federal jurisdiction over petition for habeas corpus alleging that petitioner since extradition has been confined only on governor's warrant. 16 Wall. 130-142, 21 L. 442, BRADWELL v. STATE. Syl. 1 (VII, 972). Privileges and immunities of citizens. Approved in Wadleigh v. Newhall, 136 Fed. 946, upholding Cal. Code Civ. Proc, § 1747, authorizing proceedings for appointment of guardians for persons and estates of minors having no guardians by will or deed. Syl. 2 (VII, 973). Right to practice law — Privilege of citizenship. Approved in In re Branch, 70 N. J. L. 548, 57 Atl. 431, act of 1903, relieving registered law students, whose clerkship began more than three years prior to passage of act, from examination, is void. 16 Wall. 147-156, 21 L. 426, CARLISLE v. UNITED STATES. Syl. 2 (VII, 974). Pardon obliterates offense. Approved in State v. Lewis, 111 La. 696, 35 So. 817, person par- doned cannot be reinstated as member of gi-and jury whose term has expired. Syl. 3 (VII, 975). General terms in statute limited to application. Approved in Mottley v. Louisville etc. R. Co., 150 Fed. 411, 34 Stat. 5S4, c. 3591, prohibiting interstate passes, did not invalidate contract made prior to its passage, by which interstate carrier agreed to issue free passes for life of complainant in consideration of release of claim for damages. Svl. 6 (VII, 976). Claims against government. See 103 Am. St. Rep. 311, note. 16 Wall. 166-177, 21 L. 350, HAXRICK v. BARTON. Svl. 1 (VII, 977). Mexican grant — Inurement of grant to attorney. Approved in Allen v. Parma lee, 142 Fed. 363, where grantee of Texas land to be located as vacant land executed power of attorney to locate such lands and also act of sale, to attorney, and latter executed substitution to another, giving him same powers, and latter located land, substitution was act of sale. 16 Wall. 177-233 Notes on U. S. Eeports. 584 Syl. 6 (VII, 977), Admissibility of certified copy of lost deed. Approved in Surghenor v. Ranger, 133 Fed. 459, where purchaser of concession land in Texas agreed to sell to another, who agreed to perform conditions of grant and latter transferred to another, who had land surveyed and got title of possession, there was act of sale. 16 Wall. 177-185, 21 L. 354, THE CAYUGA. Syl. 2 (VII, 978). Collision — Towing with long hawser. Approved in The Inca, 148 Fed. 368, holding tug liable for sinking of lumber bark in tow by being grounded on rock in channel known to be there by navigators but not known to tug. 16 Wall. 196-203, 21 L. 465, KOONTZ v. NORTHERN BANK. Syl. 1 (VII, 979). Inquiry by purchaser at receiver's sale. Approved in Threadgill v. Colcord, 16 Okl. 470, 85 Pac. 710, following rule. 16 Wall. 203-233, 21 L. 447, DAVIS v. GRAY. Syl. 1 (VII, 980). Receiver appointed for benefit of all. Approved in Vila v. Grand Island etc. Co., 68 Neb. 240, 110 Am. St. Rep. 416, 97 N. W. 616, denying jurisdiction to appoint receiver for corporation at suit of private parties where sole object is to se- questrate property and business of corporation. Syl. 2 (VII, 980). Leave of court required to sue receiver. Approved in Commonwealth Roofing Co. v. North American Trust Co., 135 Fed. 989, 68 C. C. A. 418, where building contractor had finished one building and was working on another at time receiver appointed, and four months after receiver appointed he attached by leave of court and submitted claim for liens in receivership suit, he did lose right to liens by failure to attach with statutory time; Ridge v. Manker, 132 Fed. 602, 67 C. C. A. 596, decree against receiver of another court is not nullity attackable collaterally merely because record fails to show affirmatively grant of permission to sue ; Hampton Roads etc. Co. V. Newport News etc. Co., 131 Fed. 536, where federal court has jurisdiction of assets of street railroad operating same through re- ceiver, it may, at suit of receiver, restrain competitor from obstructing highway in such way as to destroy receiver's property, irrespective of citizenship. Syl. 3 (VII, 981). Equity receiver's powers. Approved in Mason v. Wolkowich, 150 Fed. 701, federal bankruptcy court may enforce summarily completion of sale of assets made by re- ceiver; Bay State Gas Co. v. Rogers, 147 Fed. 559, where receiver appointed in domiciliary district of corporation and thereafter an- cillary appointment made in other district, receiver could sue in latter district in name of corporation to recover profits made by corpora- 585 Notes on U. S. Eeports. 16 WaU. 203-233 tion's trustee; Johnson v. Southern B. & L. Assn., 132 Fed. 543, 544, tax deed executed after property has passed into custody of court by its appointment of receiver for mortgagee is void and ineffective to cut off receiver's right of redemption. Syl. 4 (VII, 982). State as party to action. Approved in State v. Mortensen, 69 Neb. 385, 95 N. W. 834, denying jurisdiction over mandamus to compel board of public lands and build- ings to perform contract for leasing of convict labor. See 108 Am. St. Rep. 832, note. Distinguished in Sanders v. Saxton, 182 N. Y. 480, 481, 108 Am. St. Eep. 826, 75 N. E. 530, no action lies at suit of land owner against land commissioner and comptroller to have comptroller's deed to state on delinquent tax sale declared void. Syl. 5 (VII, 982). Suit against officer not against state. Approved in Smith v. Alexander, 146 Fed. 108, refusing preliminary injunction in suit against board of state commissioners, real purpose of which is enforcement of contract between state and complainant. Syl. 6 (VII, 984). Injunction against land officials. Approved in Walker v. United States, 139 Fed. 413, where marshal rendered accounts against government for services of deputies, which were audited, allowed and paid in accordance with recognized rules, government cannot recover same years after he has gone out of office ; dissenting opinion in Henry v. State, 87 Miss. 89, 39 So. 882, majority refusing to restrain prison board of control from carrying out contract to work plantation with convicts. See 108 Am. St. Eep. 838, 839, note. Distinguished in Do Laittre v. Board of Commrs., 149 Fed. 802, re- fusing to compel state land commissioners to issue deeds for state land; Sanders v. Saxton, 182 N. Y. 479, 108 Am. St. Eep. 826, 75 N. E. 529, action by owner of laud against land commissioner and comptroller to have deed executed by comptroller to state on delinquent tax sale declared void cannot be maintained. Syl. 7 (VII, 986). Federal suit loses no state remedies. Approved in Harrison v. Eemington Paper Co., 140 Fed. 399, under Kan. Civ. Code, § 23, where there is voluntary dismissal without preju- dice of state action, new suit is maintainable in federal court; Frank v. Butler County, 139 Fed. 126, refusing equitable relief on county aid bonds where holder delayed twenty years and did not avail himself of remedies allowed by state statute; Duryea v. American Woodworking etc. Co., 133 Fed. 332, state does not lose right to enforce annual license fee against property of insolvent corporation because at time of its assessment property was in hands of federal receiver; Barber Asphalt etc. Co. v. Morris, 132 Fed. 949, 67 L. K. A. 761, 66 C. C. A. 55, federal jurisdiction not affected by provision of city charter relating 16 Wall. 244-258 Notes on U. S. Reports. 586 to appeals from allowance and rejection of claims against city and prohibiting payment of claims pending appeal. Distinguished in Illinois l^ife Ins. Co. v. Newman, 141 Fed. 450, federal court cannot enjoin collection of state tax on ground of its illegality though such power is conferred on state courts; Anthony V. Burrow, 129 Fed. 789, denying jurisdiction to enjoin state officers acting under state statute from issuing certificate of nomination to Congressional candidate. Syl. 9 (VII, 987). Equitable relief from deed — Conditions prece- dent. Approved in Rannels v. Eowe, 145 Fed. 299, deed to railroad pro- vided road built three years, and if not built in that time lands to revert, was on condition subsequent. Syl. 10 (VII, 987). Conditions subsequent, when enforced at law. Approved in Wilmore Coal Co. v. Brown, 147 Fed. 938, second deed by grantor after default of condition in deed of mineral under certain land that it is void unless railroad built within five years, devests title of first grantee though grantor also assigns to grantee nil rights under first deed. Syl. 12 (VII, 988). State as party to contract. Cited in Gilmore v. Schenck, 115 La. 400, 39 So. 45, arguendo. 16 Wall. 244-249, 21 L. 326, HUMPHREY v. PEGUES. Syl. 1 (VII, 990). Privileges of other corporations — Tax exemption. Approved in Gunter v. Atlantic etc. R. R. Co., 200 U. S. 279, 281, 283, 284, 285, 287, 288, 289, 290, 291, 293, 50 L. 481, 482, 483, 484, 485, 486, 487, 26 Sup. Ct. 252, determining effect of principal case as res adjudicata; Lake Drummond Canal etc. Co. v. Commonwealth, 103 Va. 346, 49 S. E. 509, sale on foreclosure of trust deed of all property and franchises of corporation does not pass to purchaser tax immunity granted by state to corporation and its assigns, Syl. 2 (VII, 991). Charter tax exemption. Approved in Prewitt v. Security etc. Ins. Co., 119 Ky. 328, 83 S. W. 613, upholding Ky. St. 1903, § 631, providing for revocation of license of foreign insurance company removing suit to federal court. 16 Wall. 250-258, 21 L. 278, DICKINSON v. PLANTERS' BANK. Syl. 1 (VII, 992). Review of facts on trial to court. Approved in De La Rama v. De La Rama, 201 U. S. 310, 50 L. 768 26 Sup. Ct. 485, finding of fact stated in opinion of trial court is not finding of fact within statute ; Townsend v. Beatrice Cemetery Assn., 138 Fed. 383. on appeal in equity, recourse cannot be hid to oi^iuion of lower court to ascertain facta where there is nc» 587 Notes on U. S. Reports. 16 Wall. 258-310 evidence in record; York v. Washburn, 129 Fed. 566, 64 C. C. A. 132, opinion of trial judge setting forth reasons for decision does not become special finding by being copied into judgment entry; Larson V. Union P. R. Co., 70 Neb. 266, 97 N. W. 315, appointment of ad- ministrator made contrary to statute providing order in which persons are entitled to administrator is not collaterally attackable. 16 Wall. 258-271, 21 L. 493, KNICKERBOCKER INSURANCE CO. V. COMSTOCK. Syl. 3 (VII, 993). Mode of re-examining facts tried by jury. Approved in Sclincr v, McKay, 2 Alaska, 566, in action to quiet title, where answer shows defendant rightfully in possession was ousted by plaintiff and wrongfully kept out, defendant entitled to jury; Bradford v. Territory, 1 Okl. 370, 34 Pac. 67, proceeding by informa- tion in nature of quo warranto is suit at common law triable by j"ry- Syl. 4 (VII, 994). Mandamus to compel decision. Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 954, 955, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel cir- cuit judge to vacate order staying proceedings pending state appeal; In re Uowd, 133 Fed. 751, arguendo. See 98 Am. St. Rep. 891, note. 16 Wall. 271-277, 21 L. 313, CARPENTER v. LONGAN, Syl. 3 (VII, 995). Mortgage secured by note — Bona fide purchaser. Approved in Cudahy Packing Co. v. State Nat. Bank, 134 Fed. 546, 67 C. C. A. 662, mortgage securing negotiable note passes free from equities between original parties to bona fide indorsee of note; First Nat. Bank v. National Live Stock etc. Bank, 13 Okl. 723, 76 Pac. 131, assignee before maturity of note secured by chattel mort'/age, though assignment of mortgage not made, is protected against subse- quent purchasers in good faith. 16 Wall. 277-310, 21 L. 280, BUCHANAN v. SMITH. Syl. 2 (VII, 999). Bankruptcy — Probable cause to believe insolvent. Approved in In re McMurtrey, 142 Fed. 856, transfer by insolvent firm of all its property to certain creditors on their demand and threats to sue, which property was accepted in full payment of claims largely exceeding its value, is voidable preference; In re Moody, 134 Fed. 633, where bankrupt within four months of bankruptcy sold stock of goods to firm in exchange for farm taken in wife's name, and firm also paid his debt to bank of which members were stockholders and officers^ firm and bona fide purchaser; Crandall v. Coats, 133 Fed. 969, holding preferred creditors of bankrupt charged with notice of in- solvency at time of conveyance ; Capital Nat. Bank v. Wilkerson, .'56 Ind. App. 474, 75 N. E. S39, holding preferred creditor had reason- 16 Wall. 314-366 Notes on U. S. Keports. 588 able cause to believe at time payments made that preference was ob- tained. 16 Wall. 314-318, 21 L. 357, WALKER v. WHITEHEAD. Syl. 1 (VII, 1001). Law governing contracts. Approved in In re Thompson Milling Co., 144 Fed. 316, attorney's fee provided for in note payable on condition that default made in payment of note, and it is placed in hands of attorney for collection or suit brought thereon, is not fixed liability provable against bank- rupt's estate; Ex parte Folsom, 131 Fed. 503, holding constitutional amendment abolishing corporate existence of certain townships which had issued railroad aid bonds, impairs obligation of contracts ; Boyd V. Schneider, 131 Fed. 226, 70 L. R. A. 264, 65 C. C. A. 209, national bank act providing for administration of affairs of insolvent bank by receiver does not prevent depositors from suing directors for negli- gently loaning asset in violation of act; State ex rel. Louisiana Imp. Co. V. Board of Assessors, 111 La. 1001, 36 So. 98, arguendo. 16 Wall. 318-330, 21 L. 297, MICHIGAN CENTRAL R. R. CO. v. MINERAL SPRINGS MFG. CO. Syl. 1 (VII, 1003). Liability of connecting carrier. Approved in Pittsburgh etc. Ry. Co. v. Bryant, 36 Ind. App. 345, 75 N. E. 831, carrier receiving goods for shipment to consignee beyond its own line does not become liable for loss beyond its own line; Fisher v. Boston etc. R. R. Co., 99 Me. 343, 345, 105 Am. St. Rep. 283, 59 Atl. 534, 68 L. R. A. 390, determining liability of carrier for deviation from route without notice to shipper. See 97 Am. St. Rep. 97, note. 16 Wall. 331-336, 21 L. 339, COFIELD v. McCLELLAND. Syl. 1 (VII, 1006). Entries in trust under Denver relief act. Approved in Martin v. Hoff, 7 Ariz. 252, 64 Pac. 447, imoccupied lots entered under Comp. Laws, c. 80, § 3, could be disposed of only by legislative authority, and mandamus does not lie to compel trustee to convey lots to petitioner who had settled thereon for ten years. 16 Wall. 338-347, 21 L. 499, MERRILL v. PETTY. Syl. 2 (VII, lOOS). Revision of judgment of lower court. Cited in Taylor v. Colorado Iron Works, 33 Colo. ISO, 80 Pac. 131, arguendo. 16 Wall. 352-366, 21 L. 341, McNITT v. TURNER. Syl. 7 (VII, 1010). Collateral attack on administrator's sale. ^ Approved in White v. Martin, 2 Alaska, 498. jurisdiction of probate court to appoint guardian for lunatic's property not^ collaterally at- tackable. 589 Notes on U. S. Eeports. 16 Wall. 366-390 (VII, 1009). Miscellaneous. Cited in McGuire v. Blount, 199 U. S. 144, 50 L. 128, 26 Sup. Ct. 1, plaintiff in ejectment must recover upon strength of own title. 16 Wall. 366-377, 21 L. 287, TAYLOR v. TAINTOR. Syl. 1 (VII, 1011). Concurrent jurisdiction — Priority. Approved in In re Southwestern Bridge etc. Co., 133 Fed. 571, where Kansas corjDoration and Oklahoma corporation each did business in its own state, but were owned and managed by same persons, and busi- ness of both intermingled and both became bankrupt in Kansas and later receiver appointed for Oklahoma corporation, Kansas courts had priority of jurisdiction; Threadgill v. Colcord, 16 Okl. 469, 85 Pae. 709, where purchaser at master's sale under decree is himself a party to suit in which decree entered, he cannot collaterally attack regularity of decree. Distinguished in Beavers v. Haubert, 198 U. S. 85, 49 L. 053, 25 Sup. Ct. 573, prosecution of proceedings to remove to another district for trial one charged with offense is not unlawful intorfcreuco wi.n jurisdiction of circuit court in whose custody accused held to a\vait trials pending in such court, where such court consented. Syl. 2 (VII, 1012). Extradition — Requiring prisoner to appear. Approved in In re Beavers, 131 Fed. 368, where federal prisoner was removed to certain district for trial on indictment pending in such district, he cannot object to removal to another district on indict- ment ponding in such district before trial in first district. See 112 Am. St. Rcj). 110, 115, 129, note. Syl. 4 (VII, 1013). Dominion of bail over prisuner. Approved in United States v. Peckham, 143 Fed. G2S, one who is arrested in one federal district for removal to another for trial on criminal charge, and bound over, and gives bail for appearance in other district, cannot obtain review of magistrate's decision on his sur- render by his bail; Mackenzie v. Barrett, 141 Fed. 965, 966, one giving bail on appeal from order on ne exeat is entitled to writ of habeas corpus; Coleman v. State, 121 Ga. 598, 49 S. E. 717, without proof of authority to do so, son of bail cannot empower third person to re- capture principal. 16 M^all. 378-390, 21 L. 358, NEW ORLEANS ETC. INSURANCE CO. V. PIAGGIO. Syl. 2 (VII, 1014). New venire where facts on record. Approved in Farrar v. Wheeler, 145 Fed. 487, where in action for personal injuries only error related to assessment of damages, circuit court of appeals had jurisdiction on reversal to limit retrial to question of damages; Nichols v. Board of Commrs., 13 Wyo. 7, 76 Pac. 681, where final judgment not supported by pleadings or findings, it is reversible 16 Wall. 390-479 Notes on U. S. Eeports. 590 on error on record proper without bill of exceptions, though no excep- tion taken to proceedings below. Syl. 6 (VII, 1014), Abstractly correct instructions — Bill of excep- tions. Cited in Cassett v. Mitchell Coal & Coke Co., 150 Fed. 42, arguendo, 16 Wall. 390-402, 21 L, 361, BUEKE v. SMITH, Syl. 1 (VII, 1014). Directors cannot release stock subscriber. Approved in Maryland Trust Co. v. National Mech. Bank, 102 IMd. 627, 63 Atl. 77, holding trust company cannot purchase its own stock. 16 Wall. 414-436, 21 L. 457, UNITED STATES v, HUCKABEE. Syl. 3 (VII, 1017). Contract under duress is void. Approved in First Nat. Bank v, Sargent, 65 Neb. 601, 91 N. W. 597, 59 L. E. A. 296, where one conveyed land to bank as security for debt and he later, while broke, procured purchaser at good })rice, but bank refused to consent to sale unless bonus given, payment of bonus was under duress. Syl. 4 (VII, 1018), Duress, sale when not made under. Approved in Burnes v, Burnes, 132 Fed. 493, threat of surviving partner to administer estate as survivor unless corporation formed by heirs and stock divided, is not duress. 16 Wall. 446-452, 21 L. 367, EIBON v. EAILEOAD COS, Syl. 2 (VII, 1019). Equity — Want of necessary party. Approved in United States v. Northern Pac. E. Co., 134 Fed. 720, 67 C. C. A. 269, suit by government in which annulment of contract between corporations is sought as necessary incident to other relief, cannot be tried on merits where court has no jurisdiction of one of corporations; Weidenfcid v. Northern Pac. Ey. Co., 129 Fed. 311, 63 C. C. A. 537, where stockholder sued to restrain corporation from retiring preferred stock and issuing common stock in its place, but thing primarily sought was destruction of ownership of majority of stock by securities company formed for that purpose, securities com- pany is indispensable party; Lynch v. United States, 13 Okl. 158, 73 Pac. 1101, applying rule in suit to cancel land patent. Syl. 3 (VII, 1020). Suit by minority stockholders — Parties. See 97 Am. St. Eep. 47, note, 16 Wall. 471-479, 21 L. 303, MOEGAN v. PAEHAM. Syl. 2 (VII, 1022). Enrollment of vessel in other port. . Approved in Olson v. San Francisco, 148 Cal. 83, 82 Pac. 851, vessel engaged in commerce on high seas is taxable in San Francisco, wlicre her managing owner resided, though temporarily registered in Wash- ington and has never been in California waters. 591 Notes on U. S. Keports. 16 Wall. 483-535 Syl. 4 (VII, 1023). Tax on vessel registered in other state. Approved in Ayer etc. Tie Co. v. Kentucliy, 202 U. S. 422, 50 L. 1087, 2G Sup. Ct. 678, Comp. St. 1901, p. 2831, did not change situs of vessel for purpose of taxation; Union etc. Transit Co. v. Ken- tucky, 199 U. S. 205, 50 L. 154, 26 Sup. Ct. 3G, Kentucky state tax on rolling stock of Kentucky railroad permanently located in other states denies it due process of law; Old Dominion S. S. Co. v. Virginia, 198 U. S. 306, 308, 49 L. 1062, 1063, 25 Sup. Ct. 686, vessels which, though engaged in interstate commerce, are employed in such com- merce wholly within limits of a state, are taxable there though en- rolled at port outside of state; Commonwealth v. Ayer etc. Tie Co., 117 Ky. 169, 77 S. W. 688 (reversed 202 U. S. 409), where Illinois corporation having principal office in Chicago operated vessel having painted on its stern "of Paducah, Kentucky," vessel was taxable in Paducah. Distinguished in Foppiano v. Speed, 199 TI. S. 520, 50 L. 292, 26 Sup. Ct. 138, state license tax on person selling lifjuor in state on board interstate boat is autliorizcd by Comp. St. 1901, p. 3177. 10 Wall. 483-504, 21 L. 473, PLANTERS' BANK v. UNION BANK. Syl. 7 (VII, 1027), Keeovcry of consideration on executed illegal contract. Approved in Barnes v. Lynch, 9 Old. 193, 59 Pac. 1009, following rule; Padilla v. Padilla, 11 N. M. 553, 70 Pac. 566, where brother re- covered judgment on Indian depredation claim for property owned by himself and sister jointly, and agreed to give sister share when money received, sister may recover share; Overholt v. Burbridge, 28 Utah, 415, 79 Pac. 563, compelling bucket-shop to pay profits of sale on margin. Distinguished in Erpelding v. McKearnan, 143 Mich. 413, 107 N. W. 108, in action by stockholders of corporation, whose property sold to another corporation, to recover from another stockholder, plaintiff's share of sum alleged to have been received by defendant under secret agree- ment with purchaser, evidence of illegal contract to which plaintiff and defendant were parties is admissible; Ruemmeli v. Cravens, 13 Okl. 354, 74 Pac. 912, where nonresident employed agent to sell liquor without procuring license and agent procures license in own name, principal cannot recover of agent moneys unaccounted for. 16 Wall. 522-535, 21 L. 369, AMERICAN STEAMBOAT CO. v. CHASE. Syl. 6 (VII, 1031). Admiralty — Right of common-law remedy. Approved in The Lotta, 150 Fed. 220, where there was only one claim- ant against vessel for wrongful death, owner could set up limited lia- bility as defense in state court, and federal court could not restrain state action though extent of liability had been determined in federal court. 16 Wall. 535-560 Notes on U. S. Keports. 592 Syl. 7 (VII, 1031), Maritime tort — Jurisdiction of suit in personam. Approved in Tlie Saginaw, 139 Fed. 908, in enforcing in court of ad- miralty right of action for wrongful death in collision on high seas, which is given by statute of vessel's home state, measure, of damages is governed by law of such state. IG Wall. 535-544, 21 L. 292, BEALL v. NEW MEXICO. Syl. 1 (VII, 1032). Judgment against sureties on appeal bond. Approved in Empire State etc. Co. v. Hanley, 136 Fed. 103, 69 C. C. A. 87, upholding Idaho Ann. Code 1901, § 3576, authorizing entry of judgment, on motion against sureties, by court from which appeal is taken. Syl. 3 (VII, 1033). Administrator de bonis cannot sue predecessor. See 108 Am. St. Eep. 427, note. Distinguished in Ellyson v. Lord, 124 Iowa, 132, 99 N. W. 585, in suit by administrator de bonis non and administrator and sureties, latter cannot defend on ground that funds for which administrator did not account were proceeds of un- authorized sale of decedent's realty. 16 Wall. 544-551, 21 L. 322, MITCHELL v. HAWLEY. Syl. 1 (VII, 1034). Patents— Title— Purchase of right to use. Approved in Bobbs-Merrill Co. v. Straus, 139 Fed. 187, purchaser of copyrighted books from publisher does not infringe by resale though books contain notice that no one authorized to sell at less price than fixed by publisher; Geo. Frost Co. v. Kora Co., 136 Fed. 488, purchaser of patented clasp in open market who detaches them from cord to which they are attached and attaches them to supporters to make which both are licensed, is not infringer, Syl. 2 (VII, 1035). Patents — Restrictions in conveyance of use. Approved in New York Phon. Co. v. Edison, 136 Fed. 613, where as- signment of patent provided for assignment of improvements made within fifteen years and improvements made subsequently, and assignee authorized to extend license subject to original agreement, licensee not authorized to second extension in perpetuity. 16 Wall. 551-560, 21 L. 481, MARSHALL v. KNOX. Syl. 2 (VII, 1036). Conflicting jurisdiction — Seizure by before bank- ruptcy. Approved in First Nat. Bank v. Chicago Title etc. Co., 198 U. S. 289, 49 L. 1054, 25 Sup. Ct. 693, banlcruptcy court after adjudging, on re- ceiver's petition for directions respecting sale, that receiver was not in possession, cannot decree sale and determine rights of adverse claim- ants to proceeds; In re Reynolds, 133 Fed. 589, where after adjudica- tion in bankruptcy property taken by mortgagee under chattel mortgage given more than four months prior to filing of petition, trustees suing in 593 Notes on U. S. Keports. 16 Wall. 564-584 state court for value of property cannot institute summary proceedings in bankruptcy court. Syl. 3 (VII, 1037). Jurisdiction of suits by bankruptcy assignee. Approved in Security Warehousing Co. v. Hand, 143 Fed. 38, order on petition in bankruptcy court in nature of bill in equity to establish rights of i)etitioner to possession of property also claimed by bank- rupt 's trustee is reviewable by appeal. 16 Wall. 564-566, 21 L. 348, SPECHT v. IIOWAED. Syl. 1 (VII, 1038). Withdrawal of improper evidence. Approved in State v. Emblem, 56 W. Va. 686, 49 S. E. 557, apply- ing rule in prosecution for letting house to be used as house of ill-1'amo. Sjd. 2 (VII, 1038). Contemporaneous parol agreement to vary writ- ing. Approved in Earle v. Enos, 130 Fed. 470, parol agreement at time of discount of accommodation note that it would not look to maker for payment cannot be shown to defeat action on note. 16 Wall. 500-577, 21 L. 485, ST. PAUL WATER CO. v. WARE. Syl. 3 (VII, 1040). City's liability for injury by contractor's ob- struction. Approved in Huntt v. McNamee, 141 Fed. 299, owner of lot who let work of excavating thereon to independent contractor is not liable for injuries caused by blasting by contractor unless he knew contractor was negligent or knew work was dangerous to neighbors; Thomas v. Har- rington, 72 N. H. 48, 54 Atl. 287, 65 L. R. A. 742, abutting owner em- ploying independent contractor to put in water-pipe from road is liable for injuries to one falling into unguarded and unlighted trench; MuUius V. Siegel-Cooper Co., 183 N. Y. 136, 75 N. E. 1115, abutting owner ig liable for injuries caused pedestrian by sidewalk defectively constructed by contractor; Cameron Mill etc. Co. v. Anderson, 34 Tex. Civ. 108, 78 S. W. 10, holding one holding underground oil tank permit liable for injuries to one falling into unlighted or unguarded pit being made by his independent contractor. Distinguished in City of Pawtucket v. Pawtucket Elee. Co., 27 R. I 133, 61 Atl. 50, where railroad gave bond to save city harmless' from acts of company, city could not sue in trespass to recover amount of judg- ment rendered against city for defect in street caused by company 's negligence. 10 Wall. 577-584, 21 L. 489, WALBRUN v. BABBITT. Syl. 1 (VII, 1041). Bankruptcy — Sale of stock of goods as fraud. Approved in In re Knopf, 144 Fed. 248, 255, and In re Knopf, 14G Fed. 110, both following rule; Dokkcn v. Page, 147 Fed. 440, where bankru^jt, when insolvent, sold to petitioner entire stock for less than 38 16 Wall. 584-610 Notes on U. S. Reports. 504 half price, without invoice, sale was fraudulent as to creditors; In re Moody, 134 Fed. 632, where retail merchant sold entire stock to firm in exchange for farm taken in wife's name and also in consideration of payment of claim of bank of which members of firm were officers, transfer void as preference; In re Pease, 129 Fed. 448, 452, where trust company, through its attorney, made loan to merchant, with which he paid certain creditors including attorney's clients, loan being secured by mortgage on stock, and company next day sold out stock under mortgage, mortgage was void as to creditors. 16 Wall. 584-603, 21 L. 504, WAGER v. HALL. Syl. 2 (VII, 1042). Bankrupt— When trader is insolvent. Approved in Suffel v. McCartney Nat. Bank, 127 Wis. 214, 106 N. W. 839, preferential payment by one subsequently bankrupt is not recov- erable by trustee merely because creditor knew of facts tending to produce doubt as to debtor 's solvency. Syl. 4 (VII, 1042). Bankruptcy — Inquiries as to solvency of mort- gagor. Approved in In re Knopf, 144 Fed. 255, sale of entire stock of retail merchant within four months of bankruptcy puts burden on purchaser to show good faith; In re Moody, 134 Fed. 631, where retail merchant sold entire stock to firm in exchange for farm taken in wife's name, and also in consideration of payment of claim of bank of which mem- bers «f firm were officers, transfer was void as preference; Crandall V. Coats, 133 Fed. 969, holding creditors had notice of bankrupt's insolvency at time of conveyance; In re Pease, 129 Fed. 453, where trust company, through its attorney, made loan to merchant, with which he paid certain creditors, including attorney's clients, loan being secured by mortgage on stock, and next day company sold stock under mortgage, mortgage void as preference; Capital Nat. Bank v. Wilkerson, 36 Ind. App. 474, 75 N. E. 839, holding creditor had rea- sonable cause to believe that at time payments made preference was intended and being obtained. Syl. 5 (VII, 1042). Bankruptcy — Preference — Transfer to one cred- itor. Approved in Rex Buggy Co. v. Hearick, 132 Fed. 311, 65 C. C. A. 676, merchant hopelessly insolvent who, within four months of involuntary bankruptcy, pays certain creditors in full, but refuses others, commits act of bankruptcy. 16 Wall. 003-010, 21 L. 373, KANSAS PACIFIC RAILWAY CO. v. PEESCOTT. Syl. 2 (VII, 1043). Taxation of lands prior to patent. Approved in dissenting opinion in Delinquent Tax List v. Territory of Arizona, 4 Ariz. 189, 39 Pac. 328, majority holding taxpayer cannot 595 Notes on U. S. Reports. 16 Wall. 610-693 object to tax on unconfirmecl Mexican grant without first tendering taxes due on his other property included in assessment. Syl. 3 (VII, 1044). Taxation of public lands prior to payment. Approved in Topcka etc. Security Co. v. McPherson, 7 Okl. 341, 54 Pac. 492, lots in governmont townsite are not subject to sale for taxes levied while contest pending in Land Department and before deed issued by townsite trustees. Distinguished in Territory v. Delinquent Taxpayers, 12 N. M. 67, 73 Pac. 623, lands embraced in perfect Mexican grant are taxable, though grant submitted to court of private land claims for confirma- tion, and patent not yet issued. 10 Wall. 610-644, 21 L. 430, CEAPO v. KELLY. Syl. 3 (VII, 104G). Situs of vessels. Approved in In re Clyde S. S. Co., 134 Fed. 99, suit is maintainable in admiralty for damages for wrongful death caused by collision on high seas where recovery for wrongful death is given by states to which vessels belong. 16 Wall. 644-667, 21 L. 328, ST. JOSEPH TOWNSHIP v. ROGERS. Syl. 4 (VII, 1049). Assent of majority of voters. Approved in Sharp v. George, 5 Ariz. 68, 46 Pac. 213, under Laws 18th Leg. Asscm., Acts No. 32, relating to election to form union high school district, majority of those voting is sufficient. 10 Wall. 667-678, 21 L. 375, CHICAGO ETC. RAILROAD CO. v. COUNTY OF OTOE. Syl. 1 (VII, 1050). Legislature may authorize county railroad aid. Approved in Horton v. City of Newport, 27 R. I. 288, 61 Atl. 761, upholding power of legislature to provide for payment of city police out of local city funds. 16 Wall. 678-698, 21 L. 382, OLCOTT v. THE SUPERVISORS OF FON DU LAC CO. Syl. 3 (VII, 1052). Binding effect of state decisions. Approved in Board of Commrs. v. Tollman, 145 Fed. 763, where at time of issuance of aid bonds there was no state decision construing constitutional provision alleged to be violated, federal court puts own construction on constitution irrespective of state decision rendered after issuance of bonds; Phoenix Bridge Co. v. Castleberry, 131 Fed. 178, 65 C. C. A. 481, right of collateral attack on judgment is matter of general law, as to which state decisions are not binding. Syl. 7 (VII, 1054). Railroad is public highway. Approved in Donovan v. Pennsylvania Co., 199 U. S. 292, 50 L. 199, 26 Sup. Ct. 91, railroad having arrangement with transfer company 17 Wall. 1-29 Notes on U. S. Keports. 596 for furnishing at depot all vehicles necessary for accommodation of its passengers may exclude other cabmen from its depot; McLucas v. St. Joseph etc. Ey. Co., 67 Neb. 610, 93 N. W. 929, railroad operated in state is public highway; dissenting opinion in Western Union Tel. Co. V. Pennsylvania K. E. Co., 195 U. S. 577, 49 L. 326, 25 Sup. Ct. 133, majority holding under Eev. St., §§ 5263 et seq., telegraph companies not granted right to occupy railroad rights of way without consent of railroad. 1CVII WALLACE. 17 Wall. 1-9, 21 L. 587, COEDOVA v. HOOD. Syl. 4 (VIII, 7). Waiver of vendor's lien by taking note. Approved in Griffin v. Smith, 143 Fed. 866, following rule. Syl. 6 (VIII, 8). Means of knowledge equivalent to actual knowl- edge. Approved in National Cash Eegister Co. v. New Columbus Watch Co., 129 Fed. 116, 63 C. C. A. 616, where attorney for inventor, being requested to ascertain whether client would sell pending application for patent, bought it for himself on quiet and sold it to complainant for big gain, complainant not affected by his knowledge of equitable interest of others; Pierce v. Vansell, 35 Ind. App. 536, 74 N. E. 558, applj'ing rule where administrator conveyed tract of thirty-nine acres under description which by mutual mistake was supposed to convey twelve acres, and defendant acquired same as part of larger tract which was conveyed by antenuptial contract. 17 Wall. 19, 21 L. 611, EYAN v. KOCH. Syl. 1 (VIII, 11). Judgment affirmed in absence of assignment of errors. Approved in Fitch v. Richardson, 147 Fed. 196, following rule. 17 Wall. 19-29, 21 L. 054, NATIONAL BANK OF THE METEOP- OLIS V. KENNEDY. Syl. 1 (VIII, 11). National bank receiver's suit in own name. Approved in Fish v. Olin, 76 Vt. 124, 56 Atl. 533, national bank receiver may sue at law in own name in state court. Syl. 10 (VIII, 12). Evidence not included in bill of exceptions. Approved in The Wyandotte, 145 Fed. 326, applying rule in ad- miralty. Syl. 12 (VIII, 13). Eolicf of one party docs not control. Approved in Barataria Canning Cn. v. Ott, 84 ]Miss. 757, 37 So. 125, in construing reservation in deed, intention of parties cannot be Bhowa. 597 Notes on U. S. Eeports. 17 Wall. 32-81 17 Wall. 32-44, 21 L. 566, BRANSON v. WIRTH. Syl. 5 (VIII, 14). Estoppel against estoppel. Approved in Tappan v. Huntington, 97 Colo. 35, 106 N. W. 99, conveyance by subsequent grantee subject to encumbrances makes mortgage enforceable by original grantor who has acquired mortgage; United States Fid. etc. Co. v. Ettenheimer, 70 Neb. 151, 99 N. W. 653, one who executes bond under circumstances which estop him from pleading want of consideration cannot defend action on bond on ground that plaintiff is estopped to assert consideration. Sji. 6 (VIII, 14). Estoppel by acts inducing reliance. Approved in Wiser v. Lawler, 7 Ariz. 185, 62 Pac. 701, holding vendor of mine not estopped to assert title thereto where they had given option to party who assigned to corporation which defaulted in payment. Syl. 9 (VIII, 14). Recitals in private acts as evidence. Approved in Davis v. Moyles, 76 Vt. 37, 56 Atl. 178, petitions to legislature for grant of lands reciting lands confiscated from peti- tioner's father and private acts granting land and also reciting con- fiscation, are not evidence of confiscation, so as to show title in state at time of grant as against defendant in suit for trespass by one claiming through grantee. 17 Wall. 44-64, 21 L. 570, OLCOTT v. BYXUM. Syl. 9 (VIII, 17). Power of mortgagee to sell — Sale of part. Approved in Croze v. St. Mary's Canal etc. Co., 143 Mich. 517, 107 N. W. 93, where mortgaged logs were mingled with other logs so that sorting at place of seizure impossible, mortgagee not guilty of conversion in removing them to lake for sorting. 17 Wall. 64-G7, 21 L. 543, EX PARTE WARMOUTH. Syl. 2 (VIII, "18). Prohibition by supreme to circuit court. See 111 Am. St. Rep. 934, 936, note. 17 Wall. 67-75, 21 L. 564, MASON v. UNITED STATES. Syl. 7 (VIII, 19). Acceptance of lesser amount on government claim. Approved in Burnes v. Burnes, 132 Fed. 493, threat of surviving partner to administer estate as survivor if corporation not formed and stock allotted to heirs is not duress. 17 Wall. 78-81, 21 L. 558, HARWOOD v. CINCINNATI ETC. RAIL- ROAD CO. Syl. 2 (VIII, 20). Laches not dependent on statute of limitations. Approved in Patterson v. Hewitt, 11 N. .M. 20, 66 Pac. 557, 55 L. R. A. 658, holding claimants of conflicting mining claims who aban- 17 Wall. 82-123 Notes on U. S, Reports. 598 doned locations and made new locations in name of one of parties barred by laches. Syl. 3 (VIII, 21). Foreclosure not set aside after five years. Approved in Cole v. Birmingham Union Ey. Co., 143 Ala. 434, 39 So. 405, stockholder's suit to set aside sale of corporation's property for shares of stock in purchasing company is barred ten years after sale, property meanwhile having been sold to third party, who mort- gaged it; Patterson v. Hewitt, 11 N. M. 33, 66 Pac. 561, 55 L. E. A. Cj8, holding claimants of conflicting mining claims who abandoned locations and made new location in name of one of parties barred by laches. 17 Wall. 82-96, 21 L. 613, AVEEILL v. SMITH. Syl. 6 (VIII, 22). Probable cause — Trespass against officer. Approved in Agnew v. Haymes, 141 Fed. 637, 638, in action against internal revenue officer for wrongful seizure of property returned to claimant intact, proof of probable cause is good defense under Eev. St., § 989, though court in rendering judgment in proceeding for for- feiture failed to make certificate of probable cause provided for by Eev. St., § 970. Distinguished in Haymes v. Brown, 132 Fed. 529, under Eev. St., § 989, probable cause is no defense to action against revenue officer i'jT wrongful seizure. Syl. 7 (VIII, 22). Trespass by officer — What is probable cause. Approved in United States v. 83 Sacks of Wool, 147 Fed. 748, on judgment for claimant of property seized by customs officers, certifi- cate of probable cause should be entered where it is shown that officers acted in good faith and on reasonable ground of suspicion. 17 Wall. 9G-109, 21 L. 611, BAILEY v. HANNIBAL ETC. EAILEOAD CO. Svl. 4 (VIIT, 23). Contracts — Different writings read together. Approved in Lillard v. Kentucky Dist. etc. Co., 134 Fed. 180, 67 C. C. A. 74, where distilleries company agreed to sell slop and deliver it to feeding lot, and contemporaneous contract provided for lease of land bv purchaser to company to be used as feeding lot, lessor to have refusal of slop at market price, two contracts were separate. 17 Wall. 109-123, 21 L. 618, OULTON v. SAYINGS INSTITUTION. Syl. 3 (VIII, 24). Kinds of banks. Approved in State v. German Sav. Bk., 103 Md. 204, 63 Atl. 484, in action for collection of franchise tax on savings bank, allegation that defendant was ordinary state bank, with paid-up capital, is not inconsistent with allegation that it is not savings liank; Hamilton Nat. Bank v. American Loan & Trust Co., 66 Neb. 72,' 92 N. W. 191, 599 Notes oa U. S. Eeports. 17 Wall. 153-182 corporation authorized to negotiate loans, buy and sell notes, mort- gages and bonds, borrow money and receive deposits and execute trusts, is bank. Syl. 5 (VIII, 24). Taxes — Savings banks doing other business. Approved in Western Investment etc. Co. v. Murray, 6 Ariz. 223, 56 Pac. 731, where corporation received money and loaned it in names of depositors, and collected rents and interest on loans, which were subject to check by owners, for which it charged commission, it is a bank. 17 Wall. 153-167, 21 L. 622, HOMESTEAD CO. v. VALLEY E. R. Syl. 4 (VIII, 28). Kecovery of taxes paid by claimant of land. Apjiroved in Bryant v. Nelson-Frey Co., 94 Minn. 308, 102 N. W. S(!0, voluntary payment for number of years of taxes on vacant land of anotlier by stranger to title, under mistaken belief that he had tax title, creates no obligation on part of owner to repay. Distinguished in Armijo v. Neher, 11 N. M. 656, 72 Pac. 14, in suit for accounting between cotenants, possessor erroneously claiming en- tire tract is entitled to credits for taxes paid, where he acted in good faith, 17 Wall. 168-182. 21 L. 538, UNITED STATES v. COOK. Syl. 3 (VIII, 30). Indictment under statute containing exception. Approved in United States v. Sheridan-Kirk etc. Co., 149 Fed. 813, in prosecution for violation of eight-hour law, burden of showing justification is on defendant; United States v. Stone, 135 Fed. 395, applying rule to indictment based on Rev. St., § 5440, charging con- spiracy to defraud United States by violating subsequent statute; Johnson v. People, 33 Colo. 231, 108 Am. St. Rep. 85, 80 Pac. 135, applying rule to indictment under Mills' Ann. St. Rev. Supp., § 1209, for murder committed in procuring miscarriage; Smith v. .Jones, 16 S. D. 343, 92 N. W. 1085, upholding sufficiency of complainant for malicious prosecution, though it showed on face that offense has been outlawed and did not plead exceptions provided in statute; dissenting opinion in People v. Ebelt, 180 N. Y. 481, 73 N. E. 23S, majority hold- ing written challenge to jury panel that special jury act violated Const., art. 3, § IS, but failing to allege that bill not reported to legis- lature by revision commissioners as required by § 23, is insufficient; United .States v. Praeger, 149 Fed, 485, arguendo. Syl 5 (Vill, 31). Every ingredient of oflfense must be alleged. Approved in Laiited States v. Allen, 150 Fed. 154, indictment under Rev. St., § 4046,. must charge that money order funds embezzled came into defendant's possession by virtue of his employment; United States v. Green, 136 Fed, 641, 643, upholding sufficiency of indict- ment under Rev, St., § 5440, for conspiracy to defraud government; Niece v. Territory, 9 Okl. 539, 60 Pac, 301, indictment for bigamy 17 Wall. 191-253 Notes on U. S. Reports. 600 under Stat. 1893, § 4351, must negative fact that alleged bigamous wife was person other than wife of defendant at time of second wife; Parker v. Territory, 9 Okl. 114, 59 Pac. 10, indictment for rape must allege that female was not wife of accused; Young v. Territory, 8 Okl, 528, 58 Pae. 725, indictment for assault to rape must allege that female was not wife of accused. Syl. 7 (VIII, 32). Indictment — Statute containing exception. Approved in Tomlinson v. Bainaka, 163 Ind. 114, 70 N. E. 15G, complaint in action to enforce lien for building partition fence is sufficient, though it did not allege lands were inclosed to retain stock; State V. Snyder, 182 Mo. 498, 82 S. W. 22, 66 L. R. A. 490, holding indictment seeking to overcome limitations must allege that defendant was not inhabitant of state subsequent to offense; Wilkerson v. State, 44 Tex. Cr. 458, 72 S. W. 852, indictment under Pen. Code, art. 379, charging gaming at hotel is sufficient, though it does not negative fact that game was in private residence. Syl. 11 (VIII, 33), Defense of limitations raisable by demurrer. See 112 Am. St. Eep. 123, note, Syl. 13 (VIII, 33). Indictment — Demurrer raising defense of limi- tations. Approved in United States v. Brace, 143 Fed. 704, demurrer cannnt raise defense of plea of statute of limitations to indictment; Ex parte Townsend, 133 Fed. 75, judgment of court-martial confirmed according to articles of war is not reviewable on habeas corpus on ground that prosecution was barred by limitation. 17 Wall. 191-206, 21 L. 606, LAPEYRE v. UNITED STATES. Syl. 3 (VIII, 35). When piesidential proclamation takes effect. Approved in Railroad Commission of Louisiana v. Kansas City etc. Ry. Co., Ill La. 140, 35 So. 490, determining that railroad had con- structive notice of order of railroad commission ordering removal of Bpur track. 17 Wall. 207-210, 21 L. 553, ALLEN v. UNITED STATES, Syl. 4 (VIII, 35). Setoff on claim ex contractu. Approved in Tidewater Quarry Co. v. Scott, 105 Va. 164, 52 S. E. 837, defendant in assumpsit may set off claim for conversion of his property by plaintiff, 17 Wall. 211-253, 21 L. 523, HOLDEN v. JOY, Syl. 12 (VIII, 37). Conditions subsequent — Who claims breach. Approved in Jordan v. Goldman, 1 Okl. 440, 441, 34 Pac. 376, under Cherokee treaties, Cherokee nation settlement and operation of stone quarries on outlet was unwarranted. 601 Notes on U. S. Reports. 17 Wall. 253-354 17 Wall. 253-294, 21 L. 576, TYLER v. MAGUIRE. Syl. 4 (VIII, 38). Matters considered on second appeal. Approved in United States v. Denver etc. R. R. Co., 11 N. M. 154, 66 Pac. 552, applying rule to question as to right to cut timber on government lands adjacent to railroad right of way. 17 Wall. 322-335, 21 L. 597, UNITED STATES v. BALTIMORE ETC. RAILROAD CO. Syl. 4 (VIII, 41). Federal taxation of state agencies. Distinguished in South Carolina v. United States, 199 U. S. 460, 50 L. 269, 26 Sup. Ct. 110, government may exact revenue tax from dispensing agent of state which has taken charge of liquor business. Syl. 7 (VIII, 42). Public and private corporations distinguished. Approved in Worcester v. Worcester etc. St. Ry. Co., 196 U. S. 549, 49 L. 595, 25 Sup. Ct. 327, city cannot invoke protection of con- tract clause of constitution against abrogation, by statute, of contract between city and street railway as to paving of streets; Kittel v. Trustees etc. Imp. Fund, 139 Fed. 953, under Florida improvement fund act, trustees could confirm railroad land grant passed by legis- lature in strict conformity with improvement act. See 97 Am. St. Rep. 349, note. Distinguished in Lexington v. Thompson, 113 Ky. 545, 101 Am. St. Eep. 361, 68 S. W. 478, 57 L. R. A. 775, holding void act of 1900, attempting to fix compensation of members of city fire department. Syl. 8 (VIII, 43). Federal tax on municipal revenues. Approved in Mosely v. State, 115 Tenn. 59, 60, 86 S. W. 716, state cannot tax interest on government bonds on its being paid into hands of bondholder; dissenting opinion in South Carolina v. United States, 199 U. S. 466, 467, 468. 471, 50 L. 272, 274, 26 Sup. Ct. 110, majority holding government may exact revenue tax from dispensing agent of state which has taken charge of liquor business. Distinguished in South Carolina v. United States, 199 U. S. 453, 50 L. 266, 26 Sup. Ct. 110, government may exact revenue tax from dis- pensing agent of state which has taken charge of liquor business. 17 Wall. 336-351, 21 L. 602, HUME v. BEALE 'S EXECUTRIX. Syl. 4 (VIII, 45). Excuse for cestui 's laches. Approved in Patterson v. Hewitt, 11 N. M. 28, 66 Pae. 560, 55 L. R. A. 658, evidence of poverty of complainant is no excuse for long delay in assertion of rights. 17 Wall. 351-354, 21 L. 542, ALLEN v. MASSEY. Syl. 3 (VIII, 46). Following state statutory construction. Approved in In re Wood, 147 Fed. S7S, under Wisconsin decisions homestead owned by bankrupt, though purchased while insolvent from 17 Wall. 357-384 Notes on U. S. Eeports. 602 proceeds of nonexempt property, is exempt; York v. Washburn, 129 Fed. 567, 64 C. C. A. 132, federal courts follow state courts in deter- mining whether oral contract for lease of realty for more than one year not conforming to statute of frauds is void or voidable; dissent- ing opinion in James v. Gray, 131 Fed. 414, 65 C. C. A. 385, majority holding loan made by wife to husband from separate estate is debt provable against his bankrupt estate, irrespective of its enforceability under state laws. 17 Wall. 357-384, 21 L. 627, NEW YORK CENTEAL EAILEOAD CO. V. LOCKW^OOD. Syl. 1 (VIII, 48). Drover riding on pass is passenger. Approved in Weaver v. Ann Arbor E. E. Co., 139 Mich. 600, 601, 602, 102 N. W. 1041, 1042, following rule; McNeill v. Durham etc. Ey. Co., 135 N. C. 699, 47 S. E. 767, 67 L. E. A. 227, holding railroad liable for injuries to one riding on pass, though pass was void; Nickles V. Seaboard etc. Ey., 74 S. C. 133, 135, 54 S. E. 265, 266, where hus- band agrees to go to certain point as witness for railroad on condition that it furnish transportation for his wife, stipulation on pass relieving company from negligence is no defense to action for death of wife; Feldschneider v. Chicago, Milwaukee etc., 122 Wis. 432, 99 N. W. 1037, where contract of stock carriage provided that shipper might accompany stock, clause that carrier not liable for personal injuries in excess of $500 is void. Distinguished in Yarrington v. Delaware etc. Co., 143 Fed. 567. under Penn. P. L. 58, railway mail clerk is not passenger. Syl. 3 (VIII, 49). Limitation of carrier's liability. Approved in Central etc. Ey. Co. v. Hall, 3 24 Ga. 325, 110 Am. St. Ecp. 172, 52 S. E. 681, 4 L. E. A. (N. S.) 898, upholding contract lim- iting liability of carrier of livestock to injuries caused by gross negligence. Syl. 5 (VIII, 50). Co-ordinate jurisdiction on commercial law. Approved in Spinks v. Mutual etc. Life Assn., 137 Fed. 171, ap- plying rule in determining validity of provision of insurance policy that no action shall be brought after one year from insured's death. Distinguished in Yarrington v. Delaware etc. Co., 143 Fed. 569, under Penn. P. L. 58, railway mail clerk is not passenger. Syl. 9 (VIII, 52). Common carrier becoming private carrier. Distinguished in Texas etc. .Ey. Co. v. Fenwick, 34 Tex. Civ. 226, 78 S. W. 551, railroad liable for injuries to newsboy employed by another to sell papers on train though he signed antecedent release. Syl. 10 (VIII, 53). Care required of carriers of passengers. Approved in Memphis News Pub. Co. v. Southern Ey. Co., 110 Tenn. 703, 63 L. R. A. 150, 75 S. W. 945, where railroad contracted with 603 Notes on U. S. Reports. 17 Wall. 357-384 newspaper to run special early train carrying only its newspapers, paper j^uaranteeing certain revenue from train, and train became one of scheduled trains, railroad could not refuse other papers. Syl. 12 (VIII, 55). Gross and ordinary negligence. Approved in Evansville etc. R. R. Co. v. McKinney, 34 Ind. App. 408, 73 N. E. 150, where complaint alleged agreement for round-trip shipment of racehorses, and that on return carrier refused to ship unless contract limiting liability to .$100 for each horse signed, and horses injured by carrier's negligence, cause of action is stated; Nashville etc. Ry. Co. v. Stone, 112 Tenn. 377, 105 Am. St. Rep. 955, 79 S. W. 1038, stipulation limiting liability for loss of hogs shipped to $5 per head is void wliere real value was treble that sum. Syl. 13 (VIIT, 55). Ordinary, slight and gross negligence distin- guished. Approved in Raymond v. Portland R. R. Co., 100 Me. 534, 62 Atl. (104, construing instruction as to care required of conductor of street- ear in permitting passenger to aliglit from car. Syl. 14 (VIII, 50). Negligence defined. Approved in Maniujn v. Camden etc. Ry. Co., 50 W. Va. 550, 49 S. E. 451, applying rule where street-car passenger injured. Syl. 16 (VIII, 56). When carrier can stipulate against negligence. Approved in Kelly v. Malott, 135 Fed. 76,. 67 C. C. A. 548, charac- terization of defendant's negligence as "gross" in declaration does not change effect of allegation from what it w'ould have been if term "negligence" alone used; Chicago etc. Ry. Co. v. Ilaniler, 215 III. 540, 106 Am. St. Rep. 187, 74 N. E. 710, where sleeping-car porter injured by blowing up of locomotive of his train, contract releasing railroad from liability is complete defense, though negligence was gross; Evansville etc. R. R. Co. v. McKinney, 34 Ind. Apj). 409, 73 N. E. 150, complaint alleging agreement for round-trip shipment of racehorses, and that carrier refused to ship on return unless contract limiting liability to .$100 for each horse signed, value being fixed by carrier, states cause of action. Syl. 17 (VIII, 59). Carrier cannot stipulate against negligence. Approved in Can v. Texas etc. Ry. Co., 194 U. S. 431, 48 L. 1057. 24 Sup. Ct. 663, exemption of carrier from liability for fire is valid though opportunity to ship under common-law liability not presented; Arthur v. Texas etc. Ry. Co., 139 Fed. 130, where shipper accepted bill of lading containing fire exemption clause without request for rate under common-law liability, carrier not liable for loss by fire; Pennsylvania R. Co. v. Burr, 130 Fed. 850, 65 C. C. A. 331, where bill of lading limits carrier's liability to value of goods at time and place of shipment, and gives carrier benefit of insurance effected by ship- per, carrier cannot claim insurance covering current value at destina- tion; Wilson V. Atlantic C. L. R. Co., 129 Fed. 779, 780, where car- 17 WaU. 384-398 Notes on U. S. Reports. 604 rier agreed to haul circus cars, loading of which was to be in charge of circus men, for reduced rate, stipulation releasing carrier from liability for negligence of its employees is valid. Syl. 18 (VIII, 64), Carrier's liability to drover — Contract exemp- tion. Approved in Paul v. Pennsylvania E. R. Co., 70 N. J. L. 445, 57 Atl. 140, following rule; The Oregon, 133 Fed. 630, 68 C. C. A. 603, applying rule to stipulation of ticket exempting carrier from liabil- ity for own or agent's negligence, provided it has used due diligence to make vessel seaworthy; Johnston v. Fargo, 184 N. Y. 384, 77 N. E. 390, agreement between express company and an employee re- lieving company from liability for injuries caused through its negli- gence is void; McNeill v. Durham etc. Ey. Co., 135 N, C. 702, 703, 704, 47 S. E. 772, 773, 67 L. E. A. 227, holding railroad liable for in- juries to one riding on pass though pass was void; Sprigg v. Eut- land R. E. Co., 77 Vt. 356, 357, 358, 60 Atl. 146, 147, applying rule to contract exempting carrier from liability for injuries to care- taker of cattle; Chesapeake etc. Ey. Co. v. Beaslcy, 104 Va. 792, 3 L. R. A. (N. S.) 183, 52 S. E. 567, under Code 1887, § 1296, contract limiting carrier's liability is void; Shannon v. Chesapeake etc. Ey. Co., 104 Va. 649, 52 S. E. 377, holding railroad liable for injuries to ex- press messenger; Bosley v. Baltimore etc. E. R. Co., 54 W. Va. 579, 46 S. E. 619, 66 L. R. A. 871, contract limiting liability of carrier of stock to amount expended by owner for food and water in event of delay through carrier's negligence does not exempt carrier from lia- bility for damage caused by its negligence; Cherry v. Chicago etc. R. R. Co., 191 Mo. 517, 109 Am. St. Rep. 830, 2 L.. R. A. (N. S.) G95, 90 S. W. 389, arguendo. 17 Wall. 384-398, 21 L. 644, STITT v. HUIDEKOPEES. Syl. 3 (VIII, 65). Affirmative witness preferred to negative. Approved in Rich v. Chicago etc. Ry. Co., 149 Fed. 83, in action for death at crossing where engineer and fireman testified bell was ringing, testimony of others that they did not hear bell does not war- rant finding of negligence; The Fin MacCool, 147 Fed. 127, apply- ing rule where master and crew of sunken dredge testified to placing lights thereon and that they were burning immediately preceding collision; Baltimore etc. R. Co. v. Baldwin, 144 Fed. 56, where fore- man of track crew and others testified to warning of approach of en- gine, testimony of others that they did not hear warning creates no conflict; Chicago etc. Ry. Co. v. Andrews, 130 Fed. 70, 64 C. C. A. 399, applying rule where in action for injuries at railroad crossing many witnesses testified to hearing signals and saw train approaching; State V. Murray, 139 N. C. 548, 51 S. E. 776, upholding instruction defining positive and negative testimony in prosecution for mur- der. 605 Notes on U. S. Reports. 17 Wall. 398-437 17 Wall. 398-405, 21 L. 649, CONWAY v. STANNAED. Syl. 2 (VIII, 65). Notice of sale of perishable property. Cited in Daniels v. Homer, 139 N. C. 230, 51 S. E. 996, 3 L. E. A. (N. S.) 997, arguendo. 17 Wall. 409-411, 21 L. 665, EEED v. GAEDNEE. , Syl. 1 (VIII, 66). Eeview of matters in bill of exceptions. Approved in Newport etc. Ey. & Elec. Co. v. Yount, 136 Fed. 590, 69 C. C. A. 363, assignment of error based on giving and refusal of instructions not considered on appeal, unless bill of exceptions contains evidence pertinent to issues. 17 Wall. 417-424, 21 L. 642, MOORE v. HUNTINGTON. Syl. 4 (A'lII, 68). Judgment against defendant and appeal sure- ties. Approved in Empire State etc. Co. v. Hanley, 336 Fed. 103, 69 C. C. A. 87, where, after affirmance on appeal, appellee filed in trial court motion to proceed, containing notice to sureties on supersedeas bond that he would apply for summary decree on bond, court could render summary judgment against surety. 17 Wall. 425-437, 21 L. 650, STATE v. STOLL. Syl. 1 (VIII, 68). Repeal by later law. Approved in Guthrie v. Sparks, 131 Fed. 449, 65 C. C. A. 427, Ky. St. 1894, § 1882, empowering county fiscal courts to levy county taxes, but excepting power to levy tax for railway aid bonds, is not impliedly repealed as to exception by § 1S39, relating to ad valorem taxes; Giles v. Dennison, 15 Okl. 63, 78 Pac. 177, Laws 1897, p. 250, § 2, relating to construction of courthouse, is not repealed by Laws 1903, c. 11, p. 146; Carpenter v. Eussell, 13 Okl. 283, 73 Pac. 932. Stat. 1893, c. IS, art. 13, relating to appeals, is not inconsistent with Act of 1893 extending jurisdiction of probate court and providing for appeals therefrom; Tootle v. Kent, 12 Okl. 700, 73 Pac. 318, Code Civ. Proc, § 56, relating to change of venue, does not conflict with 28 Stat. 21, and is valid; Buchanan v. State Treasurer, 68 S. C. 415, 47 S. E. 684, construing salary reduction act of 1893, and general ap- propriation act passed on following day. Syl. 3 (VIII, 70). Special charter unaffected by general law. Approved in Christie-Street Com. Co. v. United States, 136 Fed. 333, 69 C. C. A. 464, limitation of two years for commencement of actions to recover back internal revenue taxes illegally exacted pre- scribed by Eev. St., § 3227, is not repealed by Comp. St. 1901, p. 752; Bealmear v. Hutchins, 134 Fed. 262, under Eev. St. N. C. 1837, c. 42, § 1, relating to entry of Cherokee lands, burden is on entryman to show on face of grant itself that laud was at time vacant and un- surveyed. 17 WaU. 445-473 Notes on U. S. Reports. 606 17 Wall. 445-453, 21 L. 675, WASHINGTON ETC. RAILEOAD CO. v BE OWN. Syl. 2 (VIII, 72). Process — ^Presumption as to continuance in offi- cial capacity. Approved in dissenting opinion in Thum v. Pyke, 8 Idaho, 30, 66 Pac?163, majority holding judgment against corporation is void where service of summons made on one not secretary at date of service. Syl. 4 (VIII, 72). Eailroads — Escape of legal duties by lease. Approved in Muntz v. Algiers etc. Ey. Co., Ill La. 428, 100 Am. St. Eep. 495, 35 So. 627, 64 L. R. A. 222, railroad is liable for in- juries caused by its negligent operation of cars upon road operated by its lessee. (VIII, 72.) Miscellaneous. Cited in Chicago etc. R. R. Co. v. Newell, 198 U. S. 579, 49 L. 1171, 25 Sup. Ct. 801. 17 Wall. 453-460, 21 L. 700, ADAMS v. BUEKE. Syl. 2 (VIII, 75). Patents — License to sell or use. Approved in Hartman v. Park & Sons Co., 145 Fed. 364, upholding contract between maker of proprietary medicine and wholesalers bind- ing latter to sell at fixed price and to retailers designated by maker only; Bullock etc. Mfg. Co. v. Westinghouse etc. Mfg. Co., 129 Fed. 109, 63 C. C. A. 607, where defendant restrained from making or selling patented article, his making and selling single element of combination for use in foreign country for use with other elements of patent is not contempt. Syl. 3 (VIII, 75). Patents — Sale of right in certain district. Cited in Eubber Tire Wheel Co. v. Milwaukee Eubber etc. Co., 142 Fed. 536, arguendo. 17 Wall. 460-463, 21 L. 679, PHILP v. NOCK. Syl. 1 (VIII, 76). Measure of damages for patent infringement. Distinguished in Brown v. Lanyon, 148 Fed. 839. action at law is not maintainable for sole purpose of recovering profits of infringer of patent. Syl. 2 (VIIT, 76). Damages for infringement of part. Approved in Westinghouse v. New York Air Brake Co., 140 Fed. 547, following rule. 17 Wall. 463-473, 21 L. 517, CAELTON v. BOKEE. Syl. 3 (VIII, 77). Patents — All embracing claims. Approved in Queen v. Fricdlar.dcr, 149 Fed. 777. holding void Sayer patent No. 594,036, claim 1, for improvement in vacuum tubes. 607 Notes on U. S. Reports. 17 Wall. 473-514 17 Wall. 473-488, 21 L. 723, WILSON v. CITY BANK. Syl. 1 (VIII, 78). Objects of bankruptcy. Approved in In re Armstrong, 145 Fed. 208, holding mortgages given while actually insolvent, but where debtor did not so believe, not to be preferences. Syl. 5 (VIII, 78). Bankruptcy — Transfers void as fraudulent pref- erence. Approved in Western Tie etc. Co. v. Brown, 196 U. S. 509, 49 L. 574, 25 Sup. Ct. 339, sum retained by creditor with knowledge of debtor's insolvency, within four months of bankruptcy, which sum was due bankrupt under agreement by which creditor deducted from employee's wages sums due bankrupt, is not preference; Hardy v. Gray, 144 Fed. 925, 926, holding payment by insolvent to creditor by return of goods to be preference. Syl. 6 (VIII, 78). Insolvent not compelled to petition for adjudica- tion. Approved in Eichmond etc. Iron Co. v. Allen, 148 Fed. 661, insol- vent corporation does not give preference by permitting its property on leased premises to be sold for past rent. Syl. 10 (VIII, 80). Bankruptcy — Passive nonresistance not prefer- ence. Approved in .Johnson v. Anderson, 70 Neb. 243, 97 N. W. 342, hold- ing attachment and judgment thereon not preference. 17 Wall. 496-507, 21 L. 728, UNITED STATES v. ISHAM. Syl. 2 (VIII, 84). Statutory construction — Punctuation. Approved in Crawford v. Burke, 195 U. S. 192, 49 L. 153, 25 Sup. Ct. 9, only debts created by fraud of bankrupt while he was acting as officer or in fiduciary capacity are excepted from operation of dis- charge in bankruptcy by Bankr. Act, § 17, subd. 4. Syl. 5 (VIII, 84). Taxation — Doubts construed in favor of exemp- tion. Approved in State v. Western Union Tel. Co., 96 Minn. IS, 104 N. W. 570, under Laws 1891, p. 70, c. 8, as amended in 1901, tangible and intaxable property of telegraph companies are taxable. 17 Wall. 50S-514, 21 L. 705, NORTHWESTEEN PACKET CO. v. Mc- CUE. Syl. 3 (VIII, 85). When relation of master and servant ceases. Approved in Arkadelphia Lumber Co. v. Smith, 78 Ark. 510, 95 S. W. 801, where lumber company furnished employees with hnnd- car to go home at end of day's labor, employees still in company's service while traveling over road to homes. 17 Wall. 521-559 Notes on U. S. Eeports. 608 Distinguished in O'Neil v. Pittsburg etc. E. Co., 130 Fed. 208, flagman crossing tracks after work ended cannot recover for injury caused by negligence of train crew. J 7 Wall. 521-532, 21 L. 687, BOAED OF PUBLIC WOEKS v. COLUM- BIA COLLEGE. Syl. 3 (VIII, 87). Judgments— Full faith and credit. Approved in In re Box's Will, 127 Wis. 270, 106 N. W. 10G5, on proceedings to probate will which had been probated in Illinois, where copy of record not authenticated is required by statute, county court had no jurisdiction to admit will to probate. 17 Wall. 532-545, 21 L. 707, EEA v. MISSOUEL Syl. 3 (VIII, 90). Witnesses — Scope of cross-examination. Approved in dissenting opinion in Eesurrection Gold Min. Co. v. Fortune Gold Min. Co., 129 Fed. 682, 64 C. C. A. 180, majority hold- ing cross-examination of witness should be limited to subjects of his direct examination. 17 Wall. 545-553, 21 L. 685, ELDEED v. BANK. Syl. 1 (VIII, 91). Plea is appearance. Approved in Groel v. United Elec. Co., 68 N. J. Eq. 251, 59 Atl. 641, under Eev. 1902, P. L., p. 511, plea by foreign corporation in suit in which personal decree sought, reciting that it appears by its officers for sole purpose of objecting to jurisdiction, is sufficient. 17 Wall. 553-559, 21 L. 739, UNION PACIFIC EAILEOAD CO. v. FOET. Syl. 1 (VIII, 92). Theory of fellow-servant rule. Approved in Bering Mfg. Co. v. Femelat, 35 Tex. Civ. 43, 79 S. W. 873, instruction that employer cannot escape liability for injury to servant caused by wrongful act of foreman is erroneous. Syl. 2 (VIII, 93). Presumption of servant's assumption of risks. Distinguished in McMillan v. Grand Trunk Ey. Co., 130 Fed. 829, 65 C. C. A. 165, where boy of seventeen, who had gone into railroad yards with experienced servant to be instructed in car-coupling, was killed, proof that servant who was with deceased was also young does not show defendant's negligence. Syl. 4 (VIII, 95). Ordering minor to do perilous work is negli- gence. Distinguished in Texas etc. Coal Co. v. Manning, 34 Tex. Civ. 325, 78 S. W. 547, where neither express authority to one employee to direct another, nor knowledge of such assumed authority brought ••v)me to employer, no presumption of authority arises. 609 Notes on U. S. Reports, 17 Wall. 560-581 Syl. 5 (VIII, 96). Implied agreement not endanger servant. Approved in Vohs v. Shorthill, 130 Iowa, 541, 107 N. "W. 418, hold- ing it was duty of master to warn inexperienced servant of danger from flying splinters in cutting steel rails. 17 Wall. 560-570, 21 L. 710, CHICAGO & N. W. RAILROAD CO. v. FL'LLER. Syl. 1 (VIII, 97). Commerce — Requiring posting of railroad rates. Approved in Louisville v. Wehmhoff, 116 Ky. 830, 76 S. W. 881, under Ky. St. 1899, §§ 2742, 2782, 2783, council may pass ordinance pro- hibiting poolrooms; Walker v. Southern Ry. Co., 137 N. C. 168, 49 S. E. 86, upholding Acts 1903, p. 999, c. 590, imposing penalty on railroad failing to transport interstate freight within four days after its receipt; Atlantic Coast Line Ry. Co. v. Commonwealth, 102 Va. 617, 46 S. E. 916, upholding corporation commission's rules regarding storage, demurrage, car service and car detention charges; Hagan v. City of Richmond, 104 Va. 732, 3 L. R. A. (N. S.) 1120, 52 S. E. 389, Comp. St. 1901, p. 3546, authorizing Secretary of War to remove obstructions from navigable waters, does not prohibit states or cities from removing obstructions where secretary does not act. Syl. 3 (VIII, 98). Commerce embraces what. Approved in dissenting opinion in Northern Securities Co. v. United States, 193 U. S. 392, 48 L. 723, 24 Sup. Ct. 436, majority upholding anti-trust act of 1890. Syl. 4 (Vm, 98). State regulation of commerce in absence of congressional. Approved in Arkansas etc. Ry. Co. v. German Nat. Bank, 77 Ark. 490, 92 S. W. 525, upholding Kirby's Digest, §§ 530. 531, prohibit- ing delivery of goods except on surrender of bill of lading. 17 Wall. 570-581, 21 L. 657, HORN v. LOCKHART. Syl. 1 (VIII, 99). Who are indispensable parties. Approved in Lynch v. United States, 13 Okl. 158, 73 Pac. 1100, where patent issued to homesteader for townsite purposes and many lots sold, government cannot cancel patent for fraud of entryman. Syl. 2 (VIII, 99). Presence of indispensable parties necessary to jurisdiction. Approved in New York etc. Co. v. City of New York, 145 Fed. 662, under state statute giving tenant under lease for more than ten years right to sue to remove cloud from title, lessor is not indis- pensable party to suit by lessee to set aside local improvement assess- ment. Syl. 5 (VIII, 101). Validity of acts of rebel states. Approved in Cullins v. Overton, 7 Okl. 481, 54 Pac. 705, where Texas authorities organized disputed territory into county, vvnose 39 17 Wall. 582-609 Notes on U. S. Eeports, 610 inliabitants exercised all governmental functions until it was de- cided that territory was not in Texas, judgment of court of such county was valid. 17 Wall. 582-586, 21 L. 682, THE MEEEITT. Syl. 1 (VIII, 103). Nonregistration of vessel owned by citizen. Approved in The Alta, 148 Fed. 665, vessel not registered in United States, though owned by citizen, is subject to tonnage duty; The Alta, 136 Fed. 519, 69 C. C. A. 289, foreign-built vessel owned by citi- zen is not subject to tonnage duty. 17 Wall. 596-600, 21 L. 737, SOHN v. WATERSON. Syl. 1 (VIII, 105). Statutes presumed prospective. See 111 Am. St. Rep. 461, note. Syl. 2 (VIII, 105). Limitation statutes may be retroactive. Approved in Schauble v. Schulz, 137 Fed. 391, 69 C. C. A. 581, Rev. Code N. D. 1899, § 3491a, validating titles held by adverse pos- session, is retroactive; Herriek v. Boquillas Land etc. Co., 200 U. S. 102, 50 L. 391, 26 Sup. Ct. 192, ten year limitation prescribed by Ariz. Rev. St. 1901, par. 2938, for actions to recover lands adversely held, does not apply to action brought between date when statute enacted and date when revision of statutes took effect; Lamb v. Powder River etc. Co., 132 Fed. 436, 438, 67 L. R. A. 558, 65 C. C. A. 570, holding Colo. Sess. Laws 1895, p. 239, c. 106, as amended in 1899, prescribing limitation of actions on foreign judgments, is void. See 111 Am. St. Rep. 455, note. Syl. 4 (VIII, 106). When limitations begin to run. Approved in Crothers v. Edison Electric Co., 149 Fed. 607, 608, 609, under amendment of 1905, 40 Cal. Code Civ. Proc, § 350, reducing limitations for actions for negligence, as to causes of actions previ- ously accrued, but not barred under old law, new period ran from taking effect of amendment; Keagy v. Wellington National Bank, 12 Okl. 36, 69 Pac. 813, statute of limitations does not begin to run until debtor becomes resident of territory; Huber v. Zimmerman, 8 Okl. 574, 58 Pac. 738, holding note sued on not barred; Southgate v. Frier, 8 Okl. 438, 57 Pac. 842, effect of act of 1893, abolishing lim- itation statute of 1890, was to renew causes of action which had not expired before new statute took effect; Richardson v. Mackay, 4 Okl. 337, 46 Pac. 549, where cause of action arose in another state, stat- Tite of limitations does not begin to run until debtor becomes resi- dent of territory. 17 Wall. 604-609, 21 L. 721, UNITED STATES v. EOUTWELL. Syl. 2 (VIII, 108). Mandamus does not reach office of respondent. Approved in New Mexico v. Baker, 19G U. S. 440, 49 L. 543, 25 Sup. Ct. 375, successor in office of territorial judge uuiy be substituted in 611 Notes on U. S. Eeports 17 Wall. 610-650 place of predecessor on appeal from denial of mandamus to compel latter to take jurisdiction of action; State v. Board of State Canvas- sers, 32 Mont. 16, 79 Pac. 403, mandamus to compel state officers to perform duty where, prior to liearing, term of office expired and suc- cessors given no notice of proceedings; Iloldermann v. Sciiane, 56 W. Va. 15, 48 S. E. 514, mandamus awarded against mayor and council- men to compel them to convene as canvassing board cannot be used against successors. Syl. 6 (VIII, 109). Abatement of mandamus by death or retirement of officer. Approved in New Mexico v. Baker, 196 U. S. 442, 49 L. 544, 25 Sup. Ct. 375, successor in office of territorial judge may be substituted in place of predecessor on appeal from denial of mandamus to compel latter to take jurisdiction of action; State v. Board of State Can- vassers, 32 Mont. 17, 79 Pac. 403, dismissing mandamus to compel state officers to perform official duties where prior to hearing terms ex- pired and demand 'not made on successors to perform duties. 17 Wall. 610-624, 21 L. 731, SAWYER v. HOAG. Syl. 1 (VIII, 110). Bankruptcy assignee may set aside conveyances. Approved in Commercial Bank v. Warthen, 119 Ga. 994, 47 S. E. 5.'?7, on corporation's bankruptcy, right of corporation to sue on unpaid stock subscriptions passes to trustee. Syl. 2 (VIII, 111). Corporation's capital stock is trust fund. Approved in In re Remington etc. Motor Co., 139 Fed. 776, where corporation conveyed "paid-up" shares of its stock at trifle less than par to board of trade in exchange of building site, and board sold stock at cost, purchasers not liable to further assessments on corpora- tion's bankruptcy. Syl. 3 (VIII, 115). Directors cannot release stock subscription. Approved in Vaughn v. Alabama Nat. Bank, 143 Ala. 576, 42 So. 64, stockholder who purchased corporate stock at less than par is liable to corporation's creditors for difference between purchase price and par; Maryland Trust Co. v. National Mech. Bank, 102 Md. 627, 63 Atl. 77, trust company chartered subject to Acts 1892, p. 156, c. 109, § 85e, and Const., art. 3, § 39, cannot purchase its own stock. 17 Wall. 624-630, 21 L. 741, KIBBE v. BENSON. Syl. 4 (VIII, 119). Service of process at dwelling. Approved in Graham v. Loh, 32 Ind. App. 187, 69 N. E. 476, in action to vacate judgment for fraud predicated on false return of service of summons, neither allegation in complaint that plaintiff's name forged on note sued on nor long delay in enforcing judgment show fraud in procurement of jurisdiction. Syl. 5 (VUl, 120). Equity sets aside default — Void service. Cited in King v. Davis, 137 Fed. 228, arguendo. 17 Wall. 630-CG5 Notes on U. S. Keports. 612 17 Wall. 630-639, 21 L. 717, SMITHS v. SHOEMAKEE. Syl. 5 (VIII, 120). No reversal for harmless error. Approved in Armour v. Eussell, 144 Fed. 615, reversing judgment for servant in action for injuries on account of erroneous instruction as to master's duty regarding safety of tools and place to work; Seattle Elec. Co. v. Hartless, 144 Fed. 381, under Washington statutes making action for personal injury occasioning death survive to wife or children, evidence as to physical condition of widow and daughter is inadmissible; National Biscuit Co. v. Nolan, 138 Fed. 9, 70 C. C. A. 436, reversing judgment in action for personal injuries where plain- tiff permitted to testify that she depended on herself for support; Union Pac. E. Co. v. Field, 137 Fed. 18, 69 C. C. A. 536, reversing judgment on account of prejudicial remarks of counsel in argument. 17 Wall. 639-648, 21 L. 661, DANIEL v. WHAETENBY. Syl. 7 (VIII, 122). Estates — "Issue" depends on context. Approved in Yocum v. Parker, 134 Fed. 210, 67 C. C. A. 227, under Eev. St. Mo. 1845, c. 32, §§ 5, 6, devise to son, provided if he did die without issue lands to go to another, gave son fee simple devestable on his dying without issue. Syl. 8 (VIII, 122). Wills— Eule in Shelley's Case. Approved in dissenting opinion in Doyle v. Andis, 127 Iowa, 57, 102 N. W. 184, 69 L. E. A. 953, majority holding deed to grantee during his natural life and then to his heirs conveys fee simple to him. 17 Wall. 648-651, 21 L. 774, WALKEE v. STATE HAEBOE COM- MISSIONEES. Syl. 2 (VIII, 123). Following state construction. Approved in Southern Pac. Co. v. Western Pac. Ey. Co., 144 Fed. 179, 193, determining title to Oakland waterfront. 17 Wall. 657-665, 21 L. 745, SIOUX CITY ETC. EAILEOAD CO. v. STOUT. Syl. 2 (VIII, 125). Care required of child. Approved in Shellabcrger v. Fisher, 143 Fed. 940, holding owner of apartment building liable for injuries to child of five, caused by operation of automatic passenger elevator; Euhloff v. Fair Haven etc. E. E. Co., 76 Conn. 693, 58 Atl. 7, applying rule where child of eight years run over while crossing street-car tracks; Mattson v. Minnesota etc. E. E. Co., 95 Minn. 482, 111 Am. St. Eep. 487, 104 N. W. 445, '70 L. E. A. 503, holding owner of dynamite leaving same unguarded on premises, where it was found by children and exploded, liable for injuries caused; Dubiver v. City etc. Ey. Co., 44 Or. 236, 74 Pac. 918, applying rule where boy of fifteen years was injured in collision be- tween street-car and wagon which he was driving. 613 Notes on U. S, Reports. 17 Wall. 657-665 Syl. 3 (VIII, 126). Eailroads — Care required toward trespassers. Approved in Bucci v. Waterman, 25 R. I. 127, 54 Atl. 1060, allegation that where child attempted to get on wagon was in threatening man- ner ordered off and so disconcerted that he fell off is sufficient. Syl. 7 (VIII, 128). Negligence, when question for jury. Approved in Blackman v. Edsall, 17 Colo. App. 437, 68 Pac. 792, up- holding sufficiency of evidence or undue influence in execution of will; Ft. Wayne Traction Co. v. Hardendorf, 164 Ind. 410, 72 N. E. 595, where passenger standing on running-board of street-car was injured by being struck by passing car, question of defendant's negligence in running cars so close together is for jury; Buehner Chair Co. v. Feul- ner, 164 Ind. 373, 73 N. E. 817, holding question of contributory negligence in action for injuries to servant is for jury; Indianapolis St. Ey. Co. V. O'Donnell, 35 Ind. App. 316, 73 N. E. 164, applying rule where plaintiff injured while crossing street-car tracks; Plainview V. Mendelson, 65 Neb. 90, 90 N. W. 957, upholding submission of question of negligence in construction of sidewalk; Neeley v. South- western etc. Oil Co., 13 Okl. 371, 75 Pac. 542, 65 L. R. A. 145, applying rule in action against master for personal injuries sustained by servant. Syl. 8 (VIII, 132). Eailroads— Injury to child in turntable. • Approved in Chicago etc. R. Co. v. Krayonbuhl, 65 Neb. 900, 91 N. W. 881, 59 L. R. A. 920, following rule; Shellaberger v. Fisher, 143 Fed. 939, holding owner of apartment building liable for injuries to child of five, caused by operation of automatic passenger elevator; York V. Pacific etc. Ey. Co., 8 Idaho, 585, 69 Pac^ 1045, upholding verdict for plaintiff in action for death of child of four years while playing on turntable; Lopes v. Sahuque, 114 La. 1012, 38 So. 813, holding where child injured while playing on defendant's cart left in street, there can be no recovery. Limited in Driscoll v. Clark, 32 Mont. ISO, 181, 80 Pac. 2, in action for injuries to child while playing around machinery, allegation that machinery attracted children is insufficient. Qualified in Walker v. Potomac etc. E. Co., 105 Va. 228. 229, 53 S. E. 113, 114, holding railroad maintaining unfastened turntable on premises about fifty feet from public grounds not liable for injuries to trespassing child of twelve years. Distinguished in Seymour v. Union Stockyards Co., 224 HI. 585, 79 N. E. 951, where child attracted to right of way by clay piled along tracks, and while playing there was attracted to passing train and began playing alongside of cars, railroad not liable for injuries; Foster- Hel-bert Stone Co. v. Pugh, 115 Tenn. 698, 91 S. W. 202, stone truck with bed below axle is not peculiarly attractive to children so to re- quire owner to exercise greater care in its use than employment of careful driver. 18 Wall. 5-50 Notes on U. S. Eeports. 614 17 Wall. 666-G72, 21 L. 683, THE EMILY SOUDER. Syl. 4 (VIII, 135). Note not presumed to be payment. Approved in The Winnebago, 141 Fed. 951, giving of notes by owner of ship under construction to materialman to raise funds does not deprive latter of right to lien. Syl. 6 (VIII, 136). Advances to captain in foreign port. Approved in The Worthington, 133 Fed. 725, 70 L. E. A. 353, 66 C. C. A. 555, one loaning funds in foreign port to owner of vessel to be used in loading her is entitled to lien; The Surprise, 129 Fed. 875, 64 C. C. A. 309, though vessel navigated by charterer, who is to make all disbursements and protect vessel from liens, one furnishing wharfage and supplies in foreign port on order of master acquires lien. Syl. 7 (VIII, 136). Presumptions as to advances in foreign port. Approved in The City of Camden, 147 Fed. 848, one lending money on credit of vessel to enable owner to pay off liens thereon given by state law, and which is so used, acquires lien of equal standing with those discharged; The Alcalde, 132 Fed. 78, where, while ship at port of discharge, receiver appointed in suit between owners, but master refused to surrender her until wages paid, and then he drew draft and paid himself and crew and left ship, lender not entitled to lien. • XVIII WALLACE. 18 Wall. 5-50, 21 L. 787, UNION PACIFIC RAILEOAD CO. v. PENIS- TON. Syl. 1 (VIII, 139). Limits of state taxing power. Approved in Union Eefrigerator Transit Co. v. Kentucky, 199 U. S. 206, 50 L. 154, 26 Sup. Ct. 36, due process is denied Kentucky cor- poration by tax assessed under Kentucky statute on its rolling stock located in other states. Syl. 7 (Vm, 140). Exemption of federal agencies from state tax. Approved in Hibernia Savings etc. Soc. v. San Francisco, 200 U. S. 314, 50 L. 496, 26. Sup. Ct. 265, United States Treasury checks for interest on government bonds are taxable by state in hands of owner; Baltimore Shipbuilding etc. Co. v. Baltimore, 195 U. S. 382, 49 L. 245, 25 Sup. Ct. 50, land conveyed by government to corporation for drydock purposes is not exempt from state taxation because of reservation of right to free use of dock; Noble v. Amoretti, 11 Wyo. 251, 71 Pac. 881. upholding state tax on stock of goods of licensed Indian trader located on reservation. 615 Notes oa U. S. Reports. 18 Wall. 57-^4 18 Wall. 57-71, 21 L. 798, WEBER v. BOARD OF HARBOR COM- MISSIOXERS. Syl. 1 (VIII, 142). Riparian owner's right of access. Approved in United States v. Roth, 2 Alaska, 2G3, one entering shore lands between high and low water mark in front of homestead entry of public lands is trespasser; Sutter v. Heckman, 1 Alaska, 91, granting injunction to protect owner of upland in right of ingress and egress between land and sea oter tide lands. Syl. 5 (VIII, 144). Riparian owner's right to wharf out. Approved in West Chicago St. R. R. Co. v. Illinois, 201 U. S. 524, 50 L. 852, 26 Sup. Ct. 518, upholding right to require street railway to stand expense of lowering tunnel constructed by it under river, which, though not obstruction to navigation when constructed, has become such by increased size of vessels using river; Southern Pac. Co. V. Western Pac. Ry. Co., 144 Fed. 199, 201, determining title to Oakland waterfront; Sutter v. Heckman, 1 Alaska, 88, granting in- junction to protect owner of upland in right of ingress and egress be- tween land and sea over tide lands; City of Providence v. Comstock, 27 R. I. 552, 65 Atl. 312, title to land along original shore line of tide w^