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NOTES
ON THE
UNITED STATES SUPREME COUET REPORTS
BMBBACINQ VOLUMES
2-4 DALLAS; 1-^ OEANOH; 1-8 WHEATON
THE CITATIONS IN THIS BOOK
include all from the following reports and all preceding them in each
State or series :
U. S 241
L. Ed 60
Fed 233
Alft 192
Alaska 4
Ariz 17
Ark 120
Cal 171
Cal. App 28
Cal. Unrep 7
Colo 60
Colo. App 27
Conn / 89
Del 4 Boyce
D. C. App 44
Fla 69
Ga 144
Idaho 28
III 272
Ind 183
Ind. App 59
Iowa 171
Kan 96
Ky 169
La 138
Mc 113
Md 127
Mass 222
Mich 186
Minn 130
Miss 108
Mo 266
Mo. -App 192
Mont 51
Neb 98
Nev 38
N. H 77
N. J. Eq 84
*^ • *» • •^-^ . ••••.•••■•.•••«,•*•>••* 0/
N. M 18
N. Y 217
N. C 170
N. D 32
Ohio 92
Okl 45
10
.79
251
37
101
Okl. Cr
Or
Pa
E. I
S. C.
S. D 35
Tenn 134
Tenn. Civ 5
Tex 10<)
Tex. Cr 74
Tex. Civ 62
Utah 45
Vt 88
Va 118
Wash 90
W. Va 75
Wis 102
Wyo 22
Am. Dec. [notes]- 100
Am. Rep, [notes] 60
Am. St. Rep. [notes] 140
Ann. Cas. (Am. & Eng.) [notes] 1916E
L. R. A. [notes]. 1916D
N. C. C. A. [notes] 10
B. R. C. [notes] 5
E. R. C. [notes] 26
with duplicate references to Am. Dec, Am. Rep., Am. St. Rep., Ann.
Cas. (American and English), L. R. A., N. C. C. A., and the Reporter
System.
ROSE'S NOTES
ON THE
UNITED STATES SUPREME COURT REPORTS
(2 Dallas to 241 United BUtes Reports)
8HOWINO THE
PSESE9T VALXTE AS AXTTHORITY
OF AU. OASES THEBEDT BEPOBTED AS DISCLOSED
BT ALL ST7BSEQT7ENT
CITATIONS
IN ALL THE C0UBT8 OF LAST RESORT, BOTH FEDERAL AND
STATE, AND IN THE ANNOTATIONS IN AMERICAN DECISIONS,
AMERICAN REPORTS, AMERICAN STATE REPORTS,
ANNOTATED CASES (AMERICAN AND ENGLISH),
LAWYERS' REPORTS ANNOTATED, ENGLISH
RULING CASES, BRITISH RULING CASES,
NEGLIGENCE AND COMPENSATION
CASES ANNOTATED
WITH
PARALLEL REFERENCES TO THE ABOVE-MENTIONED ANNOTATED
CASES, THE LAWYERS' EDITION OF THE U. S. REPORTS
AND THE REPORTER SYSTEM
WALTER MALINS ROSE
COMPLETE BETISED EDITION BT
CHAS. L. THOMPSON
BOOK ONE
2 Dallas to 8 Wheaton, Inclusive
BANCBOFT-WHITNEY COMPANY,
San Francisco
THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY,
RochcstoT, N. Y.
1917
\
Copyright, 1899
BY
WALTER MALINS ROSE
%
COPYBIOHT, 1904
BY
BANCROFT-WHITNEY COMPANY
Copyright, 1909
BY
BANCROFT-WHITNEY COMPANY
Copyright,* 1917: ; •: .. r
*'. • • • • : -•• •'!.;♦•• • ;
r» •
BANCROFT-WHITNEY COMPANY
237773
San Francisco
Thb Filhxr Brothers Electrotype Company
Typographers and Stereotypers
N
PREFACE TO REVISED EDITION.
In pnblishing this revised edition of Rose's Notes on United States
Snpreme Court Reports the publishers have been prompted by the knowl-
edge that the membership of the American Bar have, ingencral, learned
the ^eat utility of citation information and have so adapted themselves
to the use of annotated citations that a work such as Rose's Notes on
United States Supreme Court Reports is an indispensable adjunct to the
busy lawyer engaged in legal research.
The first edition of this work was prepared by Mr. Walter Malins Rose,
and the first volume was published in 1899, by Bancroft- Whitney Com-
pany, of San Francisco, Cal. At that time the use and value of citations
of cases was practically unknown to the profession. The great number
of citations which have accumulated since the publication of the first
edition is the weightiest testimony of the great practical use to which
citations have been employed by both courts and practitioners. The num-
ber of citations of United States Supreme Court Reports which have
accumulated since the publication of Rose's Notes on United States Su-
preme Court Reports in 1899 is equal, if not greater, than all of the
citations which had accumulated in all the years prior to that time.
In the preparation of this edition the original work of Mr. Rose has
been completely revised and corrected whenever necessary. The great
number of new citations have made it incumbent upon the editor to so
arrange the new matter that the investigator may, without the loss of
any time, obtain the latest interpretation of the principle under investiga-
tion, and at the same time get a full and comprehensive view of the
various applications thereof. The system of treating the citations and
the general arrangement has been the same as in the original edition,
with the exception that index phrases of the cited principles have been
nsed, whenever possible, in the place of syllabi and only cited syllabi have
been used. Cases which have not been cited up to the time of the publi-
cation of this edition are included in their p^per chronological order and are
followed by the words "not cited."
In the treatment of the citations in the various monographic notes con-
tained in the various annotated cases the title of the subject matter of the
note has been given in all instances, and not merely the bare citation. .
The original publishers, realizing the great worth of the Lawyers Edi-
tion of United States Supreme Court Reports, have associated the pub-
lishers of that series, the Lawyers Co-operative Publishipg Company of
Rochester, N. Y., in this enterprise.
CHAS L. THOMPSON.
San Francisco, Cal., January, 1917.
(V)
PREFACE.
The many novel features of this publication justify a somewhat detailed
statement of its scope and the method of its preparation.
Broadly speaking, it consists of two classes of matter: first, chronologi-
cally arranged syllabi of all points of law determined in the Supreme Court
decisions; and second, notes appended to such syllabi, based upon and col-
lecting all the subsequent citing cases pertaining thereto. These citation
notes are prepared by the editors from complete numerical tables of citations
which disclose as to each case all the subsequent cases in which it has been
cited in the Supreme Court, the intermediate and inferior Federal courts,
and the courts of last resort of all the States of the Union. Proceeding upon
the theory that the profession wants something more than bald, unclassified
numerical tables of citations, the notes aim to present complete citation in-
formation respecting each case in the most orderly and available form ; and
to that end the citing cases are so classified and discussed as to show the
points to which they cite, their nature, their application of the cited prin-
ciple, and their general effect.
It is earnestly believed that the plan of arrangement adopted in the prepa-
ration of the notes will commend itself to the large and growing class of
lawyers who have already learned the utility of citation information, and
convert yet others to a realization of the importance of this groove of in-
vestigation in the rapid and exhaustive compilation of authorities on any
given point.
That plan has been to examine, group, and classify the citations of each
annotated case under the respective syllabus points to which they pertain.
Within that classification they have been further separated, the cases which
afi&rm, follow, or apply the syllabus principle being treated first, followed
by the cases which distinguish, qualify, criticise, limit, or deny it, in a
separate paragraph, so as most readily to indicate the present status of the
case as an authority and the extent and limits of its applicability. In each
instance, the notes show the circumstances or state of facts to which the
citing case applies the cited principle; or, as the case may be, the grounds
upon which it distinguishes or qualifies it. The cases which neither apply,
nor distinguish, nor question the syllabus principle — ^which affirm the doc-
trine merely in an obiter discussion — are for obvious reasons treated most
briefly and placed after the applying cases and before the paragraph con-
taining the distinguishing and criticising cases. In addition, the rule has
been where the citing case collects or reviews a number of authorities, to
note that fact, and it is hoped that this will prove an assistance where ihe
investigator is seeking a rapid compilation of authorities.
(vii)
/
viii PREFACE.
/
In a few of the great cases this general plan of treatment has been de-
parted from in favor of a more elaborate and analytical discussion.
In the preparation of the syllabi, clearness, brevity, and the statement of
legal principles, rather than complicated rehearsals of fact, have been earn-
estly striven for. Syllabi of propositions decided but not thereafter cited,
are included, as well as syllabi of points as to which the case has been cited.
Many of these latter have not hitherto been syllabused or digested at all, and
are brought to light for the first time by the method of preparation of this
work. Obviously, this adds greatly to the value of the digest feature of the
publication, which is to be supplemented and rendered accessible by a com<
plete index of subject matters.
So much for the nature and scope of the notes. The writer is tempted, in
conclusion, to call attention to certain considerations which experience has
forcibly shown in Mie practical use of the complete citations of the Supreme
Court reports. That they will disclose the extent to which a case is an au-
thority to-day is sufficiently obvious. But experience in their use further
shows that they are by far the most rapid agency for the collecting of a
number of authorities on a point, particularly if the point is somewhat out
of the beaten track, and is touched upon by but a few cases in all of the
law. Indeed, it is plain, a priori, that a decision of the National Supreme
Court on any proposition of law will be more widely cited and referred to
than State court cases, and consequently that its citations will collect a very
considerable proportion of all the authorities on the point. Not only this,
but they will often disclose cases which could not be obtained through other
channels at all, for the sufficient reason that the point has been buried by
failure to syllabus it.
Inasmuch as the decisions of the Supreme Court have quite thoroughly
covered the domain of general constitutional and commercial law^ as well
as the narrower field of Federal jurisprudence, the utility of this work is by
no means restricted to Federal practitioners.
WALTER MAUNS ROSE.
San Francisco, August, 1899.
» 4
• ' ''.
^ - •
NOTES
ONTBX
UNITED STATES REPORTS-
II DALLA&.
2 DalL 401, 1 L. Ed. 433, WEST ▼. BABNES.
Wilt of error to Supreme Court must issue from clerk of tbat court.
Distinguished in Mussina y. Cavazos, 6 Wall. 357, 18 L. Ed. 811, act of
1792 changed rule and authorized its issuance by Circuit Court, clerks;
Cotter V. Alabama G. S. R. Co., 61 Fed, 748, holding Circuit Court of
Appeals may amend writ of error by affixing seal.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 835.
2 DalL 401, 1 L. Ed. 433, VANSTOFHOBST y. MABYItAND.
Motion for commission to examine witnesses in foreign country should name
commissioners.
Cited in Chisholm v. Georgia, 2 Dall. 429, 1 L. Ed. 445, as instance where
State voluntarily appeared before Supreme Court, and discussing right to
compel appearance.
2 Dall. 402-409, 1 L. Ed. 433„aEOBaiA y. BBAILSFOBD.
A State by its Ooyemor, although not a party to an action in the lower
court, may properly apply to Supreme Court for injunction against payment of
eziocution moneys to claimant until its own claim thereto is adjudicated.
Approved in State v. Huston, 21 Okl. 785, 786, 97 Pac. 983, holding
Governor had power to institute suit in name of State; cited as instance
of exercise of original jurisdiction by Supreme Court*^here State a party,
in New Jersey v. New York, 5 Pet. 288, 8 L. Ed. 128, Wisconsin v. Pelican
Ins. Co., 127 U. S. 294, 295, 32 L. Ed. 244. 245, 8 Sup. Ct. 1376, 1377, Cali-
fornia V. Southern Pacific Co., 157 U. S. 258, 39 L. Ed. 694, 16 Sup. Ct. 603,
deciding other questions as to such jurisdiction.
Whenever a State is a party. Supreme Court has exclusiye Jurisdiction.
Denied in Texas v. Lewis, 12 Fed. 3, 14 Fed. 66, holding alien defendant
may remove suit by State to Federal court ', State ex rel. v. Doyle, 40 Wis.
^-1 (1)
• a
2 DaU, 40a-^r-. ' '" NOTES ON U. S. REPORTS.
• •
200, holding inferior Federal court cannot oust jurisdiction of State court
.\ -^vhelrer State a party.
• •
To support preliminary injuaetion, W^ must show probable right, and prob-
able danger that right would be defeated unless injunction granted.
Approved in Camors-McConnell Co. v. McConnell, 140 Fed. 418, enjoining
defendant from violating contract not to engage in certain business; Hoy
V. Altoona etc. Oil Co., 136 Fed. 485, granting preliminary injunction where
recoveiy of shares of stock alleged to have been obtained through fraud ;
Harriman' v. Northern Sec. Co., 132 Fed. 478, granting preliminary injunc-
tion to prevent violafion of anti-trust act by merger of corporations in
new corporation; Denver & R. G. R. Co. v. United States, 124 Fed. 161,*
restraining railroad from cutting timber on government land: Egbert v.
Greenberg, 100 Fed. 450, enjoining infringement of racing chart copyright ;
Sanitary Reduction Works v. California Reduction Works, 94 Fed. 697,
granting preliminary injunction against removal of garbage outside city
limits; Southern Pac. Co. v. Earl, 82 Fed. 691, 48 U. S. App. 719, where
injunction granted; Branch Turnpike Co. v. Supervisors of Yuba Co., 13
Cal. 190, where denied; Blount v. Societe Anon, etc., 53 Fed. 101, 6 U. S.
App. 335, where granted in patent case; Overweight etc. Co. v. Cahill
etc. Co., 86 Fed. 339, where denied; Read v. Dews, Charlt. (Ga.) 363, .
denying conditionally a motion to dissolve ; Binney's Case, 2 Bland Ch. 104,
where injunction dissolved; Salmon v. Clagett, 3 Bland Ch. 162, where in-
junctioji continued; Newton v. Levis, 79 Fed. 718, 49 U. S. App. 271,
amplifying rule and affirming allowance of injunction by lower court;
Allison V. Corson, 88 Fed. 584, allowing temporary injunction.
Temporary injunction may issue to restrain payment of %ebt confiscated
until rightful payee is determined at law.
Approved in Love v. Atchison etc. Ry. Co., 186 Fed. 332, 107 C. C. A.
403, upholding temporary injunction against enforcing statute lowering
railway rates; City of Grand Rapids v. Warren Bros. Co., 196 Fed. 895,
116 C. C. A. 454, upholding preliminary injunction to restrain infringement
of patent; Wilmington City Ry. Co. v. Taylor, 198 Fed, 198, upholding
preliminary injunction against enforcing order reducing car fares; Irwin
V. Dixion, 9 How. 29, IS' L. Ed. 84, where the legal question was as to pub-
lic rights in alleged highway; Western U. Tel. Co. v. Union etc. Ry., 1
McCrary, 565, 3 Fed. 430, where question of validity of contract had to be
determined before the propriety of granting perpetual injunction against
its violation could be decided ; Thompson v. Carr, 5 N. H. 515, confiscation
act of 1778, vested ifi State all property of persons named in act.
Distinguished in Nenn v. Blackstone B. & L. Assn., 149 Mo. 84, 50 S. W.
439, holding receiver of insolvent corporation may recover its property
which has been fraudulently conveyed by debtor ; La Mothe v. Fink, 8 Bliss.
497, Fed. Cas. 8032, where injunction was held improper because a remedy
at law.
State suing in Supreme Court may properly do so by Oovemor ia behalf
of State.
3 HAYBURN'S CASE. 2 Dall. 409-414
Cited in Chisholm y. Georgia, 2 Dall. 452, 1 L. Ed. 454, in suit against
State process may properly be served upon Grovernor and attorney general ;
Grovemor of Georgia v. Madrazo, 1 Pet. 122, 7 L. Ed. 79, In re Ayers, 123
U. S. 488, 31 L. Ed. 224, Kentucky v. Dennison, 24 How. 96, 16 L. Ed.
725, and Western etc. Co. v. Henderson, 68 Fed. 591, holding suit by
or against Governor virtue officii, deemed suit by or against State itself;
dissenting opinion in McNutt v. Bland, 2 How. 27, 11 L. Ed. 166, arguing
tbat suit there was by Governor as private citizen; dissenting opinion in
Florida v. Georgia, 17 How. 500, 15 L. Ed. 197, arguing that a}4>earance
by United States attorney general in suit between States made the United
States a party; State ex rel. Drake v. Doyle, 40. Wis. 205, denying Federal
court's jurisdiction to enjoin state officer from revoking license of foreign
corporation; dissenting opinion in Henry v. State, 87 Miss. 94, 39 South.
884, majority holding under Constitution Governor cannot sue in name of
State.
2 Dall. 409^14, 1 li. Ed. 436, HAYBUBN'8 CASE.
Act of 1792, enjoining Circuit Court to examine pension dainifl imposes
ncmjiidlcial functions.
Approved in United States v. Evans, 213 U. S. 301, 23 L. Ed. 805, 29
Sup. Ct. 507, holding where Supreme Court could not on appeal affect
judgment, hearing and deciding case as moot case to establish rule was
not exercise of judicial power; Muskrat v. United States, 219 U. S. 352,
55 L. Ed. 248, 31 Sup. Ct. 250, holding Congress could not provide that
suit be brought in Court of Claims with appeal to Supreme Court to
test constitutionality of prior acts of Congress; District of Columbia v.
Eslin, 183 U. S. 66, 46 L. Ed, 86, 22 Sup, Ct. 18, holding Supreme Court
has no jurisdiction over appeal from Court of Claims where pending appeal
act giving latter court jurisdiction was repealed; United States v. E. I.
Du Pont De Nemours & Co., 188 Fed. 155, holding court would not super-
vise new conditions in recreation of combination dissolved as in restraint
of trade as such act is administrative; State v. Barker, 116 Iowa, 109, 89
N. W. 208, holding act authorizing courts to appoint trustees of water-
works in cities of first class invalid; State v. Brill, 100 Minn. 508, 10
Ann. Cafl. 425, 111 N. W. 643, holding void statute requiring judges of Dis-
trict Court to appoint board of control; City of Zdnesviile v. Zanesville
Tel. etc. Co., 63 Ohio St. 454, 59 N. E. 110, holding Ohio Rev. Stats., § 3461,
iniiK>ses legislative functions on courts; In re Opinion of the Judges, 25
Okl. 77, 105 Pac. 325, holding void statute requiring justices of Supremo
Court to act as advisers to Governor; Sabre v. Rutland R. Co., 86 Vt.
379, Ann. Gas. 1915C, 1269, 85 Atl. 707, holding functions of court could
not be conferred on railroad commission; In re Macfarland, 30 App. D. C.
383, holding void act of Congress requiring Supreme Court of District
of Columbia to fix value of gas plant; dissenting opinion in Sinking Fund
Comrars. etc. v. George etc., 104 Ky. 285, 47 S. W. 786, majority hold-
ing I^slatnre may appoint officers; United States v. Ferreira, 13 How.
49^ 50, 14 L. Ed. 46, holding decision of a territorial judge directed by
2 DalL 416 NOTES ON U. S. REPORTS. 4
Congress to perform similar duties, not judicial and, therefore, not appeal-
able; Gordon v. United States, 117 U. S. 703, holding act inyalid allow-
ing appeals to Supreme Court from Court of Claims; United States y.
Waters, 133 U. S. 213, SS L. Ed. 595, 10 Sup. Ct. 250, holding allowance
of counsel fees to district attorney by District Court a judicial act and
not subject to reversal by the attorney general; In re Pacific Ry. Comsn.,
12 Sawy. 586, 32 Fed. 258, holding void provision of act creating Pacific
railway commission, which authorized courts to aid in its investigations;
In re Interstate Commerce Comsn., 53 Fed. 479, holding invalid provision
authorizing Circuit Courts to make orders enforcing subpoenas issued by
interstate commerce commission) Ex parte Riebeling, 70 Fed. 311, 314,
315, declaring invalid act requiring circuit judges to certify to secretary
of the treasury value of services of informer against smugglers; Ex parte
Griffiths, 118 Ind. 84, 10 Am. St. Rep. 108, 20 N. E. 513, annulling statute
requiring judges to make syllabi of their decisions; Auditor v. Atchison,
etc. R. R., 6 Kan. 508, 7 Aju. Rep. 579, annulling statute delegating duty
of assessing property to Supreme Court; In re Senate, 10 Minn. 78, declar-
ing void act requiring judges to furnish opinions on constitutional ques-
tions to senate or house on demand ; Taylor v. Place, 4 R. I. 333, 334, 357,
358, holding legislative attempt to open a judgment and permit amendment
of pleadings, a judicial act and 'Void; Bates v. Kimball, 2 D. Chip. 90,
annulling legislative act allowing appeal in civil case after prescribed time ;
dissenting opinion in Commissioners of Sinking Fun<f v. George, 47 S. W.
786, majority upholding statute authorizing legislature to appoint peni-
tentiary commissioners.
Cited as instance where court refused to recognize validity of act of
Congress, in Emerick v. Harris, 1 Binn. 422, holding that courts may de-
clare act invalid; United States v. Williams, 28 Fed. Cas. 616, upholding
embai^o laws. »
Distinguished in Interstate Com. Comsn. v. Brimson, 154 U. S. 481, 484,
38 L. Ed. 1058, 1060, 14 Sup. Ct. 1134, 1135, holding act of Congress au-
thorizing Circuit Courts to use their process in aid of inquiries before the
interstate commerce commission valid, and not a delegation of nonjudicial
functions to that court; Kentucky etc. Co. v. Louisville etc. R. R., 37
Fed. 614, affirming validity of provision making findings of that commis-
sion prima facie evidence in Federal courts; Striker v. Kelly, 7 Hill, 23,
27, farming statute respecting New York streets authorizing the muni-
cipality to apply to Supreme Court for appointment of commissioners of
estimate and assessment; dissenting opinion in In re Macfarland, 30 App.
D. C. 397, holding acts required were judicial in nature.
Miscellaneous. Cited in Valarino v. Thompson, 28 Fed. Cas. 866, iu
reference to rule 7 of Supreme Court stated in 2 Dall. 413.
2 DalL 415, II.. Ed. 438, 08WAIJ> ▼. STATE OF NEW TOSK.
Order that defendant State appear in the aboye-entltled action hy niUEt
term day on penalty of judgment by default.
Cited to point that reason State cannot be sued is not because of non-
liability, but want of tribunal competent to adjudge it in Coster v. Mayor
5 NOTES ON U. S. REPORTS. 2 DaU. 415-480
etc., 43 N. Y. 408; as instanee of suit against a State in New Jersey v.
New York, 5 Pet. 288, 8 L. Ed. 129.
2 DalL 415-^19, 1 la. Ed. 438, OEOBGIA ▼. BBAIL8F0BD.
Injunction continued until next term, to be then dissolved unless Georgia
lutf begun action at law for tbe money confiscated.
Approved in States v. Huston, 21 Okl. 786, 97 Pac. 984,. holding Governor
could institute suit on behalf of State; State v. Frost, 113 Wis. 655, 89
N. W. 923, granting removal of injunction against Federal receiver; cited
in Wisconsin v. Pelican Ins. Co., 127 U. S. 295, 32 L. Ed. 245, 8 Sup. Ct.
1376, and California v. Southern Pacific Co., 157 TJ. S. 259, 39 L. Ed. 694,
15 Sup. Ct. 603, as instance of exercise of original jurisdiction of Supreme
Court where State a party; Thompson v. Carr, 5 N. H. 515, confiscation,
act of 1778, vested in State all property of persons named in act; to
point that original jurisdiction of Supreme Court was deemed exclusive
by early cases, State ex rel. Drake v. Doyle, 40 Wis. 200, denying right
of inferior Federal court to oust State court of jurisdiction where State
a party; to point that injunction will issue only upon showing the prob-
able right and probable injury in Read v. Dews, Charlt. 363.
2 BaU. 419-480, 1 L. Ed. 440, OHISHOLM V. GEOBGIA.
Originally State was suable in the Supreme Co/art by citlsen of another
Approved in South Dakota v. North Carolina, 1&2 U. S. 315, 320, 329,
332, 48 L. Ed. 459, 462, 466, 467, 24 Sup. Ct. 274, 277, 280, 281, uphold-
ing Supreme Court's jurisdiction over action by one State against another
to ^nforee payment of bonds of such other State which are specifically
secured by shares of stock belonging to debtor State, by ordering fore-
closure of security; Smith v. Reeves, 178 U. S. 446, 447, 44 L. Ed. 1145,
20 Sup. Ct. 923, upon question of jurisdiction of Federal courts over suit
by Federal corporation against State; Governor v. Madrazo, 1 Pet. 122,
7 L. Ed. 79, holding Federal courts without jurisdiction under eleventh
amendment to try ia libel for certain moneys and slaves in the possession
of the State government of Georgia; New Jersey v. New York, 5 Pet. 289,
8 L. Ed. 129, affirming jurisdiction of suits between two States, and la}'-
ing down various rules of practice governing such suits; Briscoe v. Bank
etc. of Kentucky, 11 Pet. 321, 9 L. Ed. 734, holding that bills of credit
of defendant bank were not issued by State because bank could be sued
and State could not; dissenting opinion in Florida v. Georgia, 17 How.
519, 524, 15 L. Ed. 193, 194, majority holding that United States may
intervene in boundary suit between two States upon allegation that Federal
territory is involved; Kentucky v. Dennison, 24 How. 96, 16 L. Ed. 725,
holding Supreme Court has original jurisdiction of suits between States /
without any enabling act of Congress; United States v. Lee, 106 U. S.
207, 27 L. Ed. 177, 1 Sup. Ct. 249, afiftrming Lee v. Kaufman, 3 Hughes,
b^, 95, 137, Fed. Cas. 8191, upholding a suit against oflftcers of Federal
government ; New Hampshire v. Louisiana, 108 U. S. 86, 91, 27 L. Ed. 660,
\
2 Dall. 419-480 NOTES ON U. S. REPORTS. 6
662, 2 Sup. Ct. 180, 184, reviewing history of eleventL amendment, and
holding that one State might not sue another as assignee of debts due
to certain of its citizens; Ames v. Kansas, 111 U. S. 466, 28 L. Ed. 489,
2 Sup. Ct. 445, to point that original jurisdiction of Supreme Court not
an exclusive jurisdiction; Wisconsin v. Pelican Ins. Co., 127 XJ. S. 289,
298, 32 L. Ed. 243, 246, 8 Sup. Ct. 1374, 1378, holding that Supreme Court
has no originalr jurisdiction of suit by State to recover penalty against a
foreign corporation adjudged by its domestic courts; Buckner v. Street,
1 Dill. 259, Fed. Cas. 2098, remarking that eleventh amendment was given
retrospective operation in holding that thirteenth amendment retroacted
to invalidate previous slave contracts; dissenting opinion in Baltimore
etc. R. R. V. Allen, 17 Fed. 177, majority upholding judgment awarding
injunction against State officers, on the ground that it was really a suit
against a State; Brown Univ. v. Rhode Island College, 56 Fed. 58, deny-
ing jurisdiction of Circuit Court over injunction proceedings against State
treasurer respecting State school lands, because really a suit agaihst the
State; Thebo v. Choctaw Tribe, 66 Fed. 375, 27 U. S. App. 657, applying
principle of nonsuability of sovereign State to Indian nation; Western
XJ. Tel. Co. V. Henderson, 68 Fed. 590, holding injunction |)roceeding.s
against State auditor to restrain enforcement of taxation law alleged to
be unconstitutional, not suit against State; Smith v. Racklif^fe, 87 Fed.
968, .holding suit against State treasurer to recover taxes paid, a suit
against a State; Ex parte State, 52 Ala. 236, 23 Am. Bep. 572, holding
repeal of law authorizing suit against State retroacted upo^ pending suits
to oust jurisdiction ; filoxham v. Florida etc. R. R., 35 Fla. 713, 17 South.
918, holding suit against State officers for recovery of money paid as
taxes, a suit against a State ; Lodor v. Baker etc. Co., 39 N. J. L. 50,
holding that State treasurer cannot be garnishe^d as to moneys of non-
resident debtor in his hands; State ex rel. Drake v. Doyle, 40 Wis. 200,
201, 205, denying jurisdiction of Federal Circuit Court over suit against
State officer in his official capacity and affecting matter of State right,
because a suit against a State; Board of Commrs. v. Walling, Dall. (Tex.)
526, holding that certain act as to establishment of land claims authorized
suit against State and that State might thus waive its nonsuability; Padel-
ford V. Mayor etc., 14 Ga. 478, 479, giving the history of the principal
case at length; State v. Young, 29 Minn. 531, 9 N. W. 743, holding that an
executory contract of a State, whose performance rests with subsequent
legislatures, is a valid contract, although not specifically enforceable ; Briggs
V. Light-Boats, 11 Allen, 176, denying right to put a lien upon a light-
boat belonging to the United States; Piqua Branch Bk. v. Hnoup, 6 Ohio
St. 375, 383, affirming the appellate jurisdiction of Federal Supreme Court
in certain matters, over the State courts; Houston v. State, 98 Wis. 487,
74 N. W. 43, holding statute permitting suits against State contemplated
only suits upon contract and not for torts of State officials; Garner v.
Worth, 122 N. C. 252, 29 S. £. 364, refusing mandamus to compel payment
of money claimed as due from the State; Smith v. Rackliffe, 87 Fed. 968,
holding action against State officer to recover taxes in effect an action
against the State; State v. Curran, 12 Ark. 343, holding constitutional pro-
7 CHISHOLM V. GEORGIA. 2 Dall. 419-480
vision authorizing snit against State should be liberally construed; Jim v.
State, 3 Mo. 149| remarking that principal case seems to have proceeded on
notion that legislation was necessary to give powers ^f Supreme Court
activity; Mayor v. Bailey, 2 Denio, 447, holding that government by be-
coming an incorporator lays aside its nonsuable sovereign character; Gar-
land V. Davis, 4 How. 149, 11 L. Ed. 915, holding that public agents are
not usually liable on contracts made in behalf of their principals; dissent-
ing opinion in Atlantic etc. R. R. Co. v. Dortch, 124 N. C. 676, 33 S. E.
159, construing acts concerning board of internal improvements ; dissenting
opinion in SUte Prison of N. C. v. Day (Day's Case), 124 N. C. 388, 32
S. £. 756, 46 L. R. A. 295, arguendo.
Distinguished in Farmers' Nat. Bank v. Jones, 105 Fed. 462, holding
Federal courts have no jurisdiction of suits i^ainst State officers; dis-
senting opinion United States v. Lee, 106 U. S. 242, 27 L. Ed. 189, 1 Sup.
Ct. 279, as not in point on question of suability of Federal government.
Criticised in Hans v. Louisiana, 134 U. S. 11, 12, 13, 16, 18, 21, 83 L. Ed.
846, 847, 848, 849, 10 Sup. Ct. 505, 506, 507, 508, 509, affirming s. c, 24
Fed. 67, holding that State cannot be sued in Federal Circuit Court by
its own citizen upon suggestion that Federal question is involved.
Federal Jurisdiction In admiralty.
Approved in Levin v. United States, 128 Fed. 830, holding Congress may
empower State courts to adnvit qualified aliens to citizenship; People v.
Tyler, 7 Mich. 269, 270, 74 Am. Dec. 716, denying that Federal admiralty
jurisdiction covered the great lakes; in Keating v. Spink, 3 Ohio St. 107,
62 Am. Dec. 216, affirming that State and Federal courts have joint juris-
diction oy^r inland rivers; dissenting opinion in Waring v. Clark, 5 How.
489, 12 L. Ed. 249, majority affirming the admiralty jurisdiction of waters
within limits of a county.
Sapreme Oouit's jurisdiction of suits by a State against citizens of another.
Approved in State of Kansas v. State of Colorado, 206 U. S. 82, 83, 51
L. Ed. 968, 27 Sup. Ct. 655, holding Supreme Court had jurisdiction to
determine suit between states relating to river control; Ex parte Young,
209 U. S. 150, 14 Ann. Oas. 764, 13 L. R. A. (N. S.) 932, 52 L. Ed. 725,
28 Sup. ' Ct. 441, holding eleventh amendment did not deprive Supreme
Court of jurisdiction of suit by stockholder to enjoin directors of corpora-
tion from complying with provisions of state statute alleged unconstitu-
tional; St. Louis etc. R. Co. v. Hadley, 161 Fed. 423, holding eleventh
amendment did not deprive Supreme Court of jurisdiction of suit to en-
join attorney general and railroad commission of State from enforcing
statute regulating railroad rates; State v. Southern Ry. Co., 145 N. C.
525, 13 L. R. A. (N. 8.) 966, 59 S. E. 580, holding under eleventh amend-
ment Federal court could not enjoin prosecution in State court of criminal
offense against State; Wisconsin v. Pelican Ins. Co., 127 U. S. 289, 32
L. Ed. 243, 8 Sup. Ct. 1374, in arguing that Supreme Court would not
entertain such suit when for the enforcement of a State's domestic penal
law.
2 Dall. 41»-480 NOTES ON U. S. REPORTS. 8
Federal JivUdary posiessei only thftt Jurisdiction delegated to it by Con-
stitution. . •
Approved in Clark v. Allaman, 71 Kan. 216, 80 Pac. 575, determining ap-
plicability of common-law rules relating to riparian rights ; Floyd v. Quinn,
24 R. I. 150, 52 Atl. 881, upholding State judiciary act of 1893 ; In re
Barry, 136 U. S. 607, 608, 617, 84 L. Ed. 507, 510, 42 Fed. 120, 121, 127,
Fed. Gas. 1059, holding that Circuit Courts have no additional common-law
jurisdiction; In re Metzger, 17 Fed. Cas; 234, ai^endo; Robertson v. Bald-
win, 165 U. S. 279, 41 L. Ed. 716, upholding act of Congress authorizing jus-
tices of the peace to issue warrants for apprehension of deserting seamen ;
United States v. New Bedford Bridge, 1 Wood. & M. 408, Fed. Cas. 16,867,
holding indictment would not lie in Federal court for obstructing navigable
river in absence of act of Congress prohibiting it; Wilson v. Jordan, 124
N. C. 722, 33 S. E. 147, arguendo.
Jurisdiction of Supreme Court of ''controversies" where State a party.
Approved in Muskrat v. United States, 219 U. S. 357, 55 L. Ed. 250, 31
Sup. Ct. 260, holding void act requiring Supreme Court on appeal from
Court of Claims to determine constitutionality of certain prior acts of
Congress, on ground "controversy" was not involved; South Dakota v.
North Carolina, 192 U. S. 318, 48 L. Ed. 461, 24 Sup. Ct. 276, upholding
Supreme Court's jurisdiction over action by one State against another to
enforce payment of bonds of such other State which are specifically se-
cured by shares of stock belonging to debtor State, by ordering foreclositre
of security; United States v. Lenore, 207 Fed. 869, holding "case" includes
naturalization proceeding, so that errors therein are reviewable by Circuit
Court of Appeals ; Wisconsin v. Pelican Ins. Co., 127 U. S. 298, 82 L. Ed.
; 846, 8 Sup. Ct. 1378, holding Supreme Court would not take original juris-
diction of suit by State to enforce its domestic penal law ; In re Pacific Ry.
Comsn., 12 Sawy. 582, 32 Fed. 255, holding that Federal courts cannot be
required to aid investigations of commission beyond matters over which
Constitution gives it jurisdiction ; King v. McLean Asylum, 64 Fed. 336, 21
U. S. App. 481, holding that petition for habeas corpus by citizen of one
State for release of citizen of another, a controversy giving Federal court
jurisdiction ; State v. Frost, 113 Wis. 654, 89 N. W. 922, removing suit to
enjoin Federal receiver.
When public officers are subject to suit although they assume to be
acting for a State or the United States. Note, 108 Am. St. Rep. 832.
When action against officers deemed against State. Note, 44 L. R. A.
(N. S.) 191.
The sovereignty of nation is in people of nation, and residuary sovereignty
of each State in its people who are joint tenants thereof.
Cited in Douglass v. Stephens, 1 Del. Ch. 473, construing constitutional
guaranty of rights in one State of citizens of another; dissenting opinion
in McElvain V. Mudd, 44 Ala. 67, majority upholding an action on note
for purchase money of slaves; dissenting opinion in Rohrbacher v. City of
9 CHISHOLM V. GEORGIA. 2 DaU. 419-480
Jaekson, 51 Miss. 752, discussing conclusiveness of legislative journals ; dis-
senting opinion in Ex parte Bushnell, 9 Ohio St. 295, 297, majority uphold-
ing fugitive slave laws; Gifford v. Livingston, 2 Denio, 400, arguendo.
Bemedial power in Constitution is to be liberally construed.
Cited in United States v. Rhodes, 1 Abb. 52, Fed. Gas. 16,151, to the civil
rights bill and thirteenth amendment.
Subpoena issued from Supreme Court in suit against State may be served
on Ooyemor and attorney general of such State, and if defendant fail to appear ^
platntiff may proceed ex parte.
Cited in New Jersey v. New York, 3 Pet. 466, 7 L. Ed. 473, where defend-
ant State failed to appear, s. c, 5 Pet. 289, 8 L. Ed. 129, laying down
various other rules of practice in such cases ; Rhode Island v. Massachusetts,
12 Pet. 761, 9 L. Ed. 1275, where defendant, after appearing, was permitted
to withdraw; Texas v. Steele, 57 Tex. 204, a suit against a State; Meri-
wether V. Bank of Hamburg, Dudl. L. 37, holding service on president and
cashier of corporation sufficient; United States v. Lee, 106 U. S. 206, 27
* L. Ed. 176, 1 Sup. Ct. 248, discussing reasons why the United States is not
suable; State m. Huston, 21 Okl. 785, 786, 97 Pac. 983, 984, holding Governor
could institute suit on behalf of State; dissenting opinion in Henry v.
State, 87 Miss. 94, 95, 39 South. 884, majority holding under Constitution
Governor cannot sue in name of State.
Distinguished in Illinois Cent. R. R. Co. v. Adams, 180 U. S. 38, 45 L, Ed.
414, 21 Sup. Ct. 254, holding question as to whether suit against individual
is suit against State within eleventh amendment should be raised by
demurrer.
Common law of England so far as applicable to cLrcomstances of country
is in force in tbe United States except wbere controlled by legislation.
Approved in State v. Akers, 92 Kan. 193, Ann. Cas. 1916B, 543, 140 Pac.
646, holding strict rule of common law that only tidal streams are navigable
not part of common law of Kansas.
Bepublican form of government is one constructed on principle that supreme
power resides in body of people.
Approved in Kiernan v. Portland, 57 Or. 471, 37 L. R. A. (N. S.) 832,
112 Pac. 405, and SUte v. Board of Commrs., 93 Kan. 412, 144 Pac. 244,
both upholding initiative and referendum laws.
Extent and adoption of common law. Note, Ann. Gas. 1913E, 1232.
Miscellaneous. Cited in Hennessy v. Richardson Drug Co., 189 U. S.
34, 47 L. Ed. 698, 23 Sup. Ct. 533, discussing questions reviewable where
question of jurisdiction on ground of diversity of citizenship is certified;
dissenting opinion in Hill v. Atlantic etc. R. Co., 143 N. C. 595, 9 L. R. A.
(K. S.) 606, 55 S. E. 874, referring to Justice Iredell's dissent in principal
case.
/
NOTES
OKTHB
UNITED STATES REPORTS.
in DALLAS.
J
3 Dall. 1-5, 1 I.. Ed. 483, STATE OF aEOBOIA V. BBAII.8F0BD.
ProTlnce of court and jnry. ^
Accuracy of report of principal case was doubted in United States v.
Morris, 1 Curt. 57, Fed. Cas. 16,815, court saying that if correctly reported
it was not in accordance with views of any other court.
Jury Bbould not have Impressions of favor for one party or otker.
Cited in State v. Wheeling etc. Bridge Co., 13 How. 588, 14 L. Ed. 279,
court presujnes jury would do equal justice between citizens of their own
State, and another State or its citizens.
Miscellaneous. Cited but not in point in The Anna, Blatchf. Pr. 339,
Fed. Cas. 400.
3 DalL 6-16» 1 L. Ed. 486, GLASS ▼. THE SIiOOP BETSEY.
Appeal must be presented to court or Judge.
Cited in Steamboat New England, 3 Sumn. 498, Fed. Cas. 10,151, appeal
lies from decree of a District Court in admiralty except to next term of
Circuit Court; Norton v. Rich, 3 Mason, 444, Fed. Cas. 10,362, appeal must
be taken in open court before adjournment sine die unless a different period
be prescribed by court; Merrill v. Petty, 16 Wall. 342, 21 L. Ed. 499, act
relating to appeals in admiralty was taken subject to limitations as to
value of matter in dispute.
District Courts possess all powers of Court of Admiralty.
Approved in The Paquette Habana, 175 U. S. 680, 44 L. Ed. 321, 20
Sap. Ct. 292, upholding Supreme Court's admiralty appellate jurisdiction
in prize cases without regard to amount in dispute; Arnold v. Eastin, 116
Ky. 699, 76 S. W. 856, recording of mprtgage in place other than home
port of vessel does not impart constructive notice; Juando (Stoughton) v.
Taylor, 2 Paine, 670, 683, Fed. Cas. 7558, and The Hiawatha, Blatchf. Pr. 7,
Fed. Cas. 6451, both discussing question of jurisdiction of District Courts
in prize cases; United States v. Ames, 99 U. S. 36, 25 L. Ed. 297, to point
(11)
3 Dall. 6-16 NOTES ON U. S. REPORTS. 12
that prize jurisdiction was involved in general delegation of admiralty and
prize jurisdiction; The Cargo of the Emulous, 1 Gall. 573, Fed. Cas. 4479,
where court considered over what prizes Admiralty Court had jurisdiction
as prize court; Simpson v. Nadeau, Conf. N. C. 264, 2 Am. Dec. 635, hold-
ing question of prize was exclusively of admiralty jurisdiction; Penhallow
V. Doane, 3 Dall. 97, 108, 1 L. Ed, 525, 530, District Court had jurisdiction
of libel to carry into execution decree of Court of Appeals in prize case
after latter court had expired; Jansen v. Brigantine Magdalena, Bee, 20,
Fed. Caa. 7216, where vessel belonging to neutral country was seized by
privateer; Novion v. Hallett, 16 Johns. 346, holding that no action at
common law lies for an illegal capture on the high seas ; 1253 Bags of Rice,
Blatchf. Pr. 213) Fed. Cas. 10,535, where question was as to whether cer-
tain property seized was lawful prize; The Isabella Thompson v. United
States, 3 Wall. 162, 18 L. Ed. 57, holding parties were entitled to decree
of restitution and damages if seizure made without probable feause ; Slocum
V. Wheeler, 1 Conn. 447, to render its sentences in prize cases conclusive
District Court must have had jurisdiction: L'Invincible, 1 Wheat. 243, 4
L. Ed. 82, where res escapes from former captor, action becomes transitory
and follows the thing; The Anna, Blatchf. Pr. 339, Fed. Cas. 402, where it
was contended that district attorney in prize court did not act in char-
acter of prosecuting officer in court of law; The Admiral v. United States,
3 Wall. 612, 18 L. Ed. 59,* prior to act of March 3, 1863, appeals in prize
cases were directly to Supreme Court; Fay v. Montgomery, 1 Curt. 269,
Fed. Cas. 4709, defense that a vessel was captured as prize of war does
not bar libel in instance side of court for marine tort in seizing vessel;
The City of Panama, 101 U. S. 458, 25 L. Ed. 1063, libel against steamship
to recover damages for personal injuries; Martins v. Ballard and Talbot,
Bee, 55 Fed. Cas. 9175, a libel for damages for trespass upon high seas;
The Meteor, 17 Fed. Cas. 180, libel for breach of neutrality ; The Isabella,
Browne, 98, Fed. Cas. 7100, a proceeding in rem, to recover seamen's wages ;
dissenting opinion in Root v. United States, 9 Ct. CI. 223, holding that
court could not make expenses of sale of prize property a charge upon the
fund for defraying expenses of suits in which the United States is a party ;
The United States v. The New Bedford Bridge, 1 Wood. & M. 455, Fed. Cas.
15,867, where question as to criminal jurisdiction of the Circuit Court was
considered ; The Divina Pastora, 4 Wheat. 66, 4 L. Ed. 515, where ' it
was said principal case had sometimes been criticised as involving denial
that jurisdiction of prizes belongs exclusively to tribunals of captors;
Brown v. The United States, 8 Cr. 137, 138, 3 L. Ed. 514, where question
was whether enemy's property on land at the commencement of hostilities
could be seized and condemned; Wheelwright v. Depeyster, 1 Johns. 481,
8 Am. Dec. 849, holding that naked sale by captor even of property pro-
fessedly belonging to an enemy is void; In re Metzger, 17 Fed. Cas. 234,
affirming rule generally; British • Consul v. 22 Pipes of Wine, Bee, 180
Fed. Cas. 1900, arguendo.
Foreign courts cannot be instituted witliin United States.
Approved in Territory v. Delinquent Tax List, 3 Ariz. 91, 21 Pac. 894,
holding special term of District Court has no jurisdiction of application
13 UNITED STATES v. HAMILTON. 3 Dall. 17-18
for judgment for delinquent taxes, though it was next teim •held after
publication of delinquent list and notice; Noble v. Cullon, 44 Ala. 560,
applying the principle in holding that the rebel governments established
in Alabama during the rebellion were not legal governments; Ex parte
Bibb, 44 Ala. 153, where judgment of rebel court was opened; Guaranty
Trust Co. V. Green Cove R. R., 139 U. S. 147, 85 L. Ed. 120, 11 Sup. Ct.
516, to point that the jurisdiction of any court may be inquired into where
its proceedings are relied upon ; Williamson v. Berry, 8 How. 641-, 12 L. Ed.
1190, where court looked into jurisdiction of the chancellor of New York;
Moch V. Virginia etc. Ins. Co., 4 Hughes, 119, 10 Fed. 706, power to look
into jurisdiction did not relieve court from doctrine of res judicata ; Horau
T. Wahrenberger, 9 Tex. 321, 58 Am. Dec. 147, an appeal cannot confer
jurisdiction that court a quo did not possess; Bell v« Ohio L. & T. Co.,
1 Biss. 270, Fed. Cas. 1260, priority of^ jurisdiction as between State and
United States courts was determined by issuance of process; The Divina
Pastora, 4 Wheat. 66, 4 L. Ed. 515, citing cases on jurisdiction over cap-
tures; dissenting opinion in McElvain v. Mudd, 44 Ala. 66, as to rights
which are inherent in sovereignty which is an essential element of State
authority; The Invincible, 2 Gall. 38, 40, Fed. Cas. 7054, where jurisdiction
of a neutral country was considered and court said authority of the prin-
cipal case seemed to be shaken by opinion in Hudson v. Guestier^ 4
Cranch, 293, 2 L. Ed. 293 , s. c, 6 Cranch, 281, 3 L. Ed. 281.
3 DalL 17-18, 1 L. Bd. 490, UNITED STATES ▼. HAMILTON.
Prisoner charged with Ugh treason admitted to bail upon application by
liabeaa corpus.
Approved in Ex parte Moran, 144 Fed. 600, Circuit Courts of Appeals
may issue habeas corpus within respective jurisdictions ; Ex parte Burford,
4 Cr. 449, 2 L. Ed. 405, issuing writ of habeas corpus; Ex parte Tergcr,
8 Wall. 98, 19 L. Ed. 336, holding that the Supreme Court of the United
States could by the writ of habeas corpus revise the decision of the Circuit
Court; dissenting opinion in Hyatt v. Allen, 64 C^l. 364, discussing power
to issue writs of habeas corpus ; United States v. The New Bedford Bridge,
1 Wood. & M. 440, Fed. Cas. 15,867, where jurisdiction of Federal courts
and lowers of Congress considered; Ex parte Virginia, 100 U. S. 343, 25
L. Ed. 678, while generally writ of habeas corpus cannot subserve the
purpose of writ of error, yet if prisoner is held without authority, au-
thority of court will be examined into; Ex parte Watkins, 3 Pet. 207, 208,
7 L. Ed. 655, where court refused to discharge prisoner held under judg-
ment of court of general criminal jurisdiction; King v. McLean Asylum,
64 Fed. 334, 346, 347, 21 U. S. App. 481, i>etition by citizen of one State
seeking release from illegal restraint by citizen of another State; Ex parte
Burford, 3 Cr. 449, 2 L. Ed. 495, holding that warrant of commitment by
justice of peace must state good cause certain, supported by oath; In re
Kaine, 14 How. 130, 132, 146, 14 L. Ed. 356, 357, 363, where eourt refused
to release prisoner who had committed an assault in Ireland and who was
committed by the commissioner pending order of President of United
States; In re Metzger, 5 How. 189, 191, 12 L. Ed. 110, holding writ of
3Dall.l9-42 NOTES ON U. S. REPORTS. 14
habeas corpus could not issue to review decision of District Court commit-
ting prisoner to custody awaiting order of President to deliver him to
French government; dissenting opinion in Ex parte Wells, 18 How. 317,
15 L. Ed. 426, where court refused to discharge prisoner conditionally par-
doned; Ex parte Lange, 18 Wall. 166, 21 L. Ed. 876, prisoner cannot be
both fined and imprisoned under statute conferring power ^o fine or iki-
prison; Ex parte Watkins, 7 Pet. 572, 573, 8 L. Ed. 788, where prisoner
confined under sentence of fine and imprisonment was discharged; In re
Barry, 42 Fed. 124, Fed. Cas. 1059 (opinion of Betts, J., reprinted in 136
U. S. 613, 34 L. Ed. 509), where a father who was foreigner attempted to
recover his children by writ of habeas corpus; Ex parte BoUman and
Swartwout, 4 Cranch, 100, 101, 103, 104, 2 L. Ed. 663, 664, following rule ;
Holmes v. Jennison, 14 Pet. 620, 10 L. Ed. 622, where writ of error to an
order of State court on habeas co^us was dismissed; People v. Turner, 1
Cal. 147, 52 Am. Dec. 298, where question was whether Supreme Court had
power to issue writs of mandamus; In re MacDonald, 16 Fed. Cas. 25, 26,
affirming federal jurisdiction to issue habeas corpus; cited in the rules
of Supreme Court of United States in 3 Dallas, 120, 1 L* Ed. 535, under the
order that all evidence on motions for a discharge of prisoner upon bail
shall be by way of deposition and not viva voce. And see In re Fries,
9 Fed. Cas. 842.
Criticised in dissenting opinion in Ex parte Watkins, 7 Pet. 581, 8 L. Ed.
791, majority refusing to discharge prisoner.
Bail in capital cases. Note, 39 L. R. A. (N. S.) 759.
Bemlssion to special Circuit Court.
Cited in United States v. Cornell, 2 Mason, 99, 100, Fed. Cas. 14,868,
motion for special session comes too late after indictment is found or a
trial had at general session; Memorandum, 4 Craich C. C. 338, Fed. Cas.
9411, Circuit Court cannot, at special session for criminal causes, try
cause which was pending at preceding stated session; United States v.
Insurgents, 26 Fed. Cas. 499, rejecting motion for change of trial to special
term.
3 DaU. 19-42, 1 !■. Ed. 491, BINaHAM ▼. CABBOT.
Bill of exceptions is conclusive.
Applied in Gladden v. State, 12 Fla. 573, if grounds of objection do not
appear in record they cannot be properly considered; Sloan v. Territory,
6 N. M. 86, 27 Pac. 418, every reasonable intendment ought to be indulged
in favor of judgment.
Presumed that Oovemor of Martinique, in signing certificate, acted with
antborlty.
CitdH in Charles Green's Sons v. Salas, 31 Fed. 113, where there was
question as to naturalization of citizen in foreign country.
Not bound to deliver verdict tn conformity to opinion of court.
Cited in dissenting opinion in Sharf v. XTHited States, 156 U. S. 158, 89
L. Ed. 381, 15 Sup. Ct. 314, where court in prosecution for murder in-
structed jury that they could not find verdict for less offense.
16 UNITED STATES v. LAWRENCE. 3 Dall. 4^-54
Ciieiiit Oonrt'B Jnrisdlctloii oTer action to recoTor ttom public agent pro-
ceeds ftom lale of prize.
Cited in Bierbower v. Miller, 30 Neb. 181, where there was motion to
remove cause to Circuit Court; Brown v. Noyes, 2 Wood. & M. 79, Fed.
Cas. 2023, where there was declaration for money had and received and
also for like sum for goods sold in the usual form; Bank of the United
States V. Moss, 6 How. 37, 12 L. Ed. 334, to point that money counts aver
enough to give Circuit Court jurisdiction where they state indebtedness
and promise to pay, made directly to plaintiffs, though there is no all^a-
tion of residence in different States.
lietten by public agent to government as evidence.
Approved in The Emma Silver M. Co. v. Park, 14 Blatchf. 418, Fed.
Cas. 4467, where letters written to codefendant during time when scheme
charged was being concocted were admitted in evidence; The Meteor, 17
Fed. Cas. 188, admitting communication of Secretary of State to prove
vrar existed between two foreign powers.
Admiralty in disposition of costs looks to substantial rights and equities of
tbe parties.
Cited in Shaw v. Thompson, Olcott, 156, Fed. Cas. 12,726, holding that
court may withhold costs from both parties when neither propose, to do
what is substantially just; The Ship Moslem, Olcott, 378, Fed. Cas. 9876,
holding that prima facie prevailing party is entitled to recover costs.
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 dis-
tant, president of aldermanic board cannot appoint police commissioner.
Meaning of "absent" or "absence" as applied to public officer. Note,
Ann. Cas. 1912G, 353.
3 DalL 42-n54, 1 I.. Ed. 502, UNITED STATES v. I^AWBENOE.
Mandamus wUl not lie to control decision.
Approved in Kerr v. Superior Court, 130 Cal. 185, 62 Pac. 480, refusing
mandamus against Superior Court to issue citation against director of
irrigation district; Sears v. Vary, 208 Mass. 209, 94 N. E. 468, applying
rule to assessors in levying tax; Lyle v. Cass Circuit Judge, 157 Mich. 34,
121 N. W. 306, holding mandamus not available to review refusal to change
venue; Cattermole v. Ionia Circuit Judge, 136 Mich. 280, 99 N. W. 3, man-
damus does not lie to review action of circuit judge in quashing writ and
to compel setting aside of order; State v. Plumley; 83 Vt. 493, 76 Atl. 147,
holding mandamus does not lie to compel assistant county judges to agree
on liquor license commissioners; State ex rel. Driver v. Commissioners etc.
of Talladega, 3 Port. 416, inferior tribunal will not be compelled to grant
right under statute to which party J»pplying has not entitled himself;
Ex parte Railway Co., 101 U. S. 720, 25 L. Ed. 875, writ refused where
remedy was by appeal; In re Turner, 5 Ohio, 544, wh9re mandamus issued
to compel court to proceed to trial; dissenting opinion in Richardson v.
Farrar, 88 Va. 773, 15 S. E. 122, holding court would be compelled to
3DalL42-M NOTES ON U. S. REPORTS. 16
hear and determine election contest ; Ex parte Newman, 14 Wall; 16>6, 20
L; Ed. 879, refusing mandamus to compel Circuit Court to entertain juris-
diction of appeal from District Court in libel for wages; People ex rel. v.
Weston, 28 Cal. 641, where mandamus issi^ed to compel county judge to
try cause on ground that he has improperly dismissed appeal from Jus-
tice's Court ; Commonwealth v. Judges, 3 Binn. 275, holding writ does not lie
to reinstate appeal; Territory v. Ortiz, 1 N. M. 15, holding that continu-
ance was in the discretion of court and that niandamus would not lie
to compel the court to proceed to judgment; Petition of Farwell, 2 N. H.
125, where judgment refusing to accept an award was not reviewed ; State
v. Mitchell, 3 Brev. (S. C.) 522, holding that mandamus would not lie in
case the ordinary should grant administration to one not entitled; People
ex rel. Doughty v. Judges of Dutchess Common Pleas, 20 Wend. 660, Su-
preme Court cannot by mandamus dictate judgment to be rendered; People
ex rel. v. Judge of Wayne Co., 1 Mich. 361, holding writ would not be
allowed to compel court to come to particular conclusion or to retrace its
steps where it has already acted; Judges of the Oneida Common Pleas v.
People, 18 Wend. 94, holding decision that title to land had come in ques-
tion could not be reviewed by mandamus; Arberry v. Bravers, 6 Tex. 468,
55. Am. Dec. 7^^* holding writ would not lie to compel chief justice of
(vounty to order election for seat of justice of county; Fisher's Negroes v.
Dobbs, 6 Yerg. 151, Jiolding that discretion of the chancellor in relation
to consenting to manumission of slave was subject to control; Richards v.
Wheeler, 2 Aik. 372^ holding that writ would not lie to compel County
Court to accept report of auditors; Borough of Ansonia v. Studley, C7
Conn. 180, 34 Atl. 1032, where mandamus to compel judge to make a find-
ing of facts was denied ; Chase v. Blackstone Canal Co., 10 Pick. 246, where
court refused to grant mandamus to compel allowance of costs; Laird v.
Abrahams, 15 N. J. L. 26, where court compelled a justice of peace to issue
execution ; Ex parte Crane, 5 Pet. 207, 8 L. Ed. 99, People ex rel. v. Pear-
son, 2 Scam. 204, 33 Am. Dec. 448, and Page v. Clapton, 30 Gratt. 419,
all holding that mandamus lies to compel judge to sign bill of exceptions;
Jelley v. Roberts, 60 Ind. 7, holding that where judge had settled and
signed bill he would not be compelled to amend same; Detroit etc* Co. v.
Gartner, 75 Mich. 377, 42 N. W. 974, where an application for mandamus
to compel the granting of new trial was denied ; State ex reh v. Macon Co.
Court, 68 Mo. 51, where mandamus to compel County Court to allow cred-
itor whose claim had been reduced to judgment, a warrant on the treasurer
payable out of a particular fund, was refused; Commonwealth ex rel.
Brackenridge v. Judges gf the Common Pleas, 1 Serg. & R. 195, 196, hold-
ing that writ would not lie to compel admission of an attorney; Ex parte
Echols, 30 Ala. 700, 88 Am. Dec. 751, holding that writ would not lie to
compel speaker to send bill to senate; Board of Supervisors of Mason Co.
V. Mintum, 4 W. Va. 304, holding writ would not lie to compel board
of supervisors to permit one to give bond and qualify as treasurer; Griffith
' V. Cochran, 5 Binn. 103, 106, holding writ would lie to secretary of land
office to compel hinfto make calculations of purchase money and interest
on land sold; State ex rel. Register of Lands v. Secretary of State, 33 Mo.
17 PBNHAIiiOW V. DO ANE. 3 Dall. 64r-120
304, holding writ would not lie to compel Secretary of State to verify
correctness of an account; In re Proprietors of Kennebunk'ToU Bridge, 11
Me. 260, holding that county commissioners could not be compelled to
accept a report; Gibbs v. Co. Commrs. of Hampden, 19 Pick. 299, holding
that mandamus would not lie to compel county commissioners to reverse
decision upon complaint for abatement of tax; Towle v. State, 3 Fla. 210,
holding writ would not lie against a Controller of State in administration
of the affairs of his office.
Law of mandamus. Note, 89 Am. Dec. 732.
3 Oaa 54-120, 1 L. Ed. 507, PENHAUiOW V. DOANE.
Congress, under Oonfederatioii, had power to Institate 00^ of Aivpeals
wltli jurisdiction in prize cases.
Approved in Ryman Steamboat Line Co. v. Commonwealth, 125 Ky. 257,
10 L. R. A. (N. S.) 1187, 101 S. W. 403; holding jurisdiction over Cumber-
land River for purposes of interstate commerce is in Congress ; Bingham v.
Cabbdtt, 3 Dall. 40, 1 L. Ed. 501, where, in action by privateer against pub-
lic agent, to recover the proceeds of prize, it was held that Congress had
power to pass resolutions relating to prize ; Shallenberger v. Brinton, 52 Pa.
St. 74, holding that Congress has power to issue treasury notes and make
them lawful money and legal tender; King v. McLean Asylum, 64 Fed.
336, 21 U. S. App. 481, where there was a petition for habeas corpus to
secure release by a citizen of one State from illegal restraint by a citizen
of another State ; Mayor etc. v. Dargan, 46 Ala. 317, to point that general
assembly within limit of its powers is only legislative body of State.
Oaptain of privateer is responsible to Congress or to their constituted
authority for legality of captures.
Cited in Jennings v. Carson, 4 Cr. 17, 20, 21, 2 L. Ed. 586, 587, privateer
capturing neutral not liable to decree of restitution unless property or
its proceeds came to his hands.
PtoceedingB of admiralty are in rem and death of one of parties does not
affect light to have decree executed.
Approved in The Ticeline, 208 Fed. 671, holding claim in rem against
vessel for tort not abated by death of claimant; Erie etc. Transp. Co. v.
Erie R. 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; Whitney v.
Walsh, 1 Cush. 32, 48 Am. Dec. 590, where decree of United States District
Court forfeited goods as smu^led; The N. W. Thomas, 1 Biss. 215, Fed,
CaB. 10,386, where libel was filed on claim for services performed; Juando
(Stoughton) V. Taylor, 2 Paine, 679, Fed. Cas. 7658, where libel for dam-
ages was brought against privateer; Webber v. Underbill, 19 Wend. 451,
where effect of death of defendant in replevin was considered; Cushing v.
Laird, 107 U. S. 80, 27 L. Ed. 896, 2 Sup. Ct. 205, where there was libel
in admiralty to recover damages for destruction of libelant's vessel ; Munks
V. Jackson, 66 Fed. 574, 29 U. S. App. 482, to point that claim that no
1—2 . ,
V
\
3 DaU. 64r-120 NOTES ON U. S. REPORTS. ' 18
jadgment could be rendered because claimant of yessel wbo was costipu-
lator on bond was dead, is untenable; The James A. Wright, 10 Blatchf.
163, Fed. Cas. 7191, where before trial one of defendants died; Dan-
forth V. Danforth, 111 111. 241, where party died after trial but before
judgment; Reid v. Holmes, 127 Mass. 328, where judgment was entered
after defendant's death on default suffered in his life.
Distinguished in iBLaydock v. Cobb, 5 Day, 529, holding that in equity
decree cannot have any effect against stranger unless there were proper
parties before court.
Judgments in rem and their effect as res adjudicata. Note, 76 Am.
Dec. 725.
Agent pasring over money under judgment after notice of an appeal is not
excused in payment.
Cited in Penacoock Sav. Bank v. Hubbard, 68 N. H. 167, where money
was paid on a check by mistake to messenger who paid it to payee, it could
not be recovered from messenger.
Appeal snspends execution of decree from moment it was made.
. Cited in Folger v. The Robt. G. Shaw, 2 Wood. & M. 540, Fed. Cas.
4899, where appeal was taken by libelant for salvage on account of small-
ness of salvage allowed; State v. Johnson, 13 Fla. 46, where an appeal
has been taken and supersedeas allowed from order appointing receiver,
power of lower court is suspended; Anonymous, 1 Gall. 24, Fed. Cas. 444,
where court said cause is to be heard anew both as to law and fact; Poole
v. Nixon, 19 Fed. Cas. 999, arguendo.
Distinguished in, United States v. Chin Dong Ying, 229 Fed. 816, holding
appeal from order of deportation vacated order entirely ; Dixon v. Watkins,
9 Ark. 152, execution wrongfully issued upon judgment appealed from is
voidable but not absolutely void.
Writ of inhibition enables appellate court in case of disobedience to punish
inferior court for contempt.
Cited in In re Lyman, 55 Fed. 43, holding that threatened ^attempt to
oust court and its officers from their rooms might be properly enjoined.
Want of monition to appellees to compel their appearance is cured by ap-
pearance in appellate court. i
Cited in the Columbia, 73 Fed. 237, 44 U. S. App. 326, where several
parties with distinct claims were brought into one proceeding for the
limitation of liability by a ship owner; The Joseph H. Toone, Blatchf. Pr.
259, Fed. Cas. 7542, where district attorney obtained order for monition
to attach vessel by delivering copy of monition to proctor.
The State, in fact, is composed of all citizens, not of part only.
Approved in People v. Crane, 214 N. Y. 160, Ann. Gas. 1916B, 1254, 108
N. £. 429, holding State could discriminate between employment of citizens
and aliens in public work ; Texas v. White, 7 Wall. 720, 19 L. Ed. 236, where
meaning of the term ''State" was discussed; Brown v. State, 5 Colo. 499,
where point was made that a complaint was entitled ''State of Colorado"
19 PENHALLOW v. DOANE. 3 Dall. 64-120
•
instead of The People of the State of Colorado"; West River Bridge Co.
V. Diz, 6 fiow. 539, 12 L. Ed. 648, to point that all property of State is
derived from its government held suhject to its wants in taxation and to
public uses both in war and peaee; Bogart v. United States, 2 Ct. CI. 164,
where term "war risk" in poHcy wherein government was insurer was
construed.
District Court has whole original Jurisdiction in admiralty and maritime
Cited in Packard y. The Sloop Louisa, 2 Wood. & M. 52, Fed. Cas.
10,652, where libel was filed for wages; The Cargo of the Ship Emulous,
1 Gall. 573, Fed. Cas. 4479, where extent of this jurisdiction was con-
sidered; Brown v. United States, 8 Cr. 137, 3 L. Ed. 514, holding that
British property in the United States at breaking out of hostilities cannot
be condemned without legislative act; The Hiawatha, Blatchf. Pr. 7, Fed.
Cas. 6451, District Courts have exclusive jurisdiction in prize cases ; Robin-
son V. Hook, 4 Mason, 146 Fed. Cas. 11,956, which was bill for discovery
of an informer's share; The Amiable Nancy, 1 Paine, 117, Fed. Cas. 331,
where libel was filed for damages by owner of schooner against owner of
privateer.
Distinguished in Braithwaite v. Jordan, 5 N. Dak. 216, 65 N. W. 707,
holding that admiralty did not have exclusive jurisdiction to enforce bonds
&nd stipulations taken on the instance side of the court. *
A Court of Admiralty of one nation can carry into effect determination of a
Court of Admiralty of another.
Cited in The Centurion, 1 Ware, 480, Fed. Cas. 2554, where libel in per-
sonam was brought against master of a brig for salvage; The Steamship
Zodiac, 5 Fed. 222, to point that libel in personam will in some cases lie
to enforce a decree in rem; The Enterprise, 2 Curt. 319, Fed. Cas. 4497,
where court said that libel in personam will lie to enforce decree for wages ;
The Meteor, 17 Fed. Cas. 180, on admiralty jurisdiction of Federal courts.
Distinguished in Assign v. The Lamar, 2 Fed. Cas. 69, holding judgment
in common-law court not enforceable in admiralty.
On writ of error to Supreme Court from decree in admiralty, decree can be
rectified in the parts considered erroneous.
Approved in Lamport v. Smedley, 213 N. Y. 85, 106 N. E. 923, holding
appellate division of court, could on reversal of judgment in equity make
its own findings and decree ; Braithwaite v. Jordan, 5 N. Dak. 252, 65 N. W.
720, on appeal in admiralty cases, case is heard de novo; Insurance Co.
V. Folsom, 18 Wall. 249, 21 L. Ed. 833, if finding of court be general one.
Supreme Court will only review questions of law; Barreda v. Silsbee, 21
How. 167, 16 L.Ed. 93, holding that sufficiency of evidence was for jury
to determine; United States v. King, 7 How. 865, 12 L. Ed. 948, holding
that writ of error only brings up questions of law and that questions of
fact remain unexamined; The Brig Oriole, Olcott, 70, Fed. Cas. 10,573, to
point that admiralty divides, modifies or withholds costs in correspondence
with extrinsic justice of cause; In re Metzger, 17 Fed. Cas. 234; arguendo.
\
N
3 Dall. 121-132 NOTES ON U. S. REPORTS. 20
Distingaished in Cotton t. Wallace, 3 Dall. 304, 1 L. Ed. ttS, holding that
where judgment pr decree is affirmed on writ of error 4tere can be no
allowance of damages except for delay.
/ Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. B. A. 863.
8 DaU. 121-182, 1 L. Bd. 585, triTITED STATES ▼. PETERS.
The District Court has no Jurisdiction of libel against foreign privateer for
capturing American vessel on blgb seas.
Approved in Murray v. Wilson Distilling Co., 164 Fed. 18, 92 C. C. A. 1,
holding Federal court has jurisdiction of suit against State Dispensary
Commission of South Carolina; The Invincible, 2 Gall. 36, 42, Fed. Cas.
7054, trial of prizes belongs exclusively to courts of country of the captors ;
Juando (Stoughton) v. Taylor, 2 Paine, 670, 679, 683, Fed. Cas. 7558,
holding that this country has jurisdiction over captures by foreign vessels
if such vessels were equipped here and the prizes brought here; The pivina
Pastora, 4 Wheat. 66, 4 L. Ed. 515, holding that unless neutral rights of
United States are violated, legality of captures by cruisers of foreign
country cannot be determined; The Santissima Trinidad, 7 Wheat. 350,
6 L. Ed. 471, in case of violation of neutral territorial jurisdiction no
distinction is made between capture of public and private armed ships*;
Llnvincible, 1 Wheat. 252, 259, 260, 4 L. Ed. 84, 86, legality of belligerent
seizures is exclusively for courts of capturing power to determine; Gov-
ernor of Georgia v. Madrazo, 1 Pet. 122, 7 L. Ed. 79, where libel was filed
for slaves which had been brought into a State and seized as an illegal
importation; dissenting opinion in Chaffraix v. Board of Liquidation, 11
Fed. 648, holding that Circuit Court has jurisdiction to prevent State
officers from diverting a fund collected by taxation; Western Union Tel.
Co. v. Henderson, 68 Fed. 591, suit to restrain State auditor from cer-
tifying and transmitting to the county auditors valuations of the property
of complainant.
ProMbition lies to district Judge from Supreme Court, when court is acting
in case where it has no Jurisdiction.
Approved in State v. White, 40 Fla. 320, 24 South. 167, holding plea
to jurisdiction unnecessary before resort to jurisdiction when petition
on its face showed lack of jurisdiction; United States v. Hoffman, 4
Wall. 163, 18 L. Ed. 355, holding that prohibition will not lie where
court has already disposed of the case; Ex parte Easton, 95 U. S. 71,
24 L. Ed. 374, application to restrain District Court from exercising
jurisdiction in proceeding in rem to enforce a lien for wharfage; Bains v.
Schooner James etc., 1 Bald. 563, Fed. Caa. 756, where libel was filed to
obtain the payment of a balance due for wages; Ex parte Phonix Ins. Co.,
118 U. S. 626, 80 L. Ed. 280, 7 Sup. Ct. 32, petition by owner of steam
vessel to try his liability for damages to buildings by fire and for limi-
tation of such liability; In re Cooper, 143 U. S. 506, 506, 86 L. Ed. 248,
12 Sup. Ct. 461, 462, application for prohibition to the District Court of
21 TALBOT V. JANSON. 3 Dall. 133-170
Alaska to Testrain enforcement of decree of condemnation; Tapia v.
Martine£^ 4 N. M. 167, 16 Pac. 274, where there was a motion for per-
emptoiy prohibition to restrain a justice from proceeding in replevin;
Ez parte Graham, 10 Wall. 643, 19 L. Ed. 982, holding writ will not lie
in proceedings to confiscate real estate under the act of July 17, 1862;
Smith V. Whitney, 116 U. S. 176, 29 L. Ed. 604, 6 Sup. Ct. 575, holding
that writ does not lie to the secretary of the navy; Lincoln etc. M. Co. v^
District Court, 7 N. M. 492, 495, 507, 38 Pac. 58g, 583, 687, holding writ
may be issued in vacation to a board or officer exercising judicial or quasi-
judicial functions ; State v. Gleason, 12 Fla. 203, an application to Supreme
Court to issue a quo warranto.
The writ of prohibition. Note, 111 Am. St. Bep. 944.
Superintending control of civil courts over courts-martial. Note, 20
L. B. A. (N. S.) 416.
Superintending control and supervisory jurisdiction over inferior or
subordinate tribunal. Note, 51 L. B. A. 104.
3 DaU. 135-170, 1 L. Ed. 640, TAISOT v. JANSON.
How expatriation effected.
Approved in Mackenzie v. Hare, 165 Cal. 779, Ann. Oas. 1915B, 261, 134
Pac. 714, holding native-born woman lost American citizenship by mar-
riage to alien ; Comitis v. Parkerson, 56 Fed. 558, 560, holding that expatria-
tion can only be effected in accordance with law; Murray v. McCarty, 2
Munf. (Va.) 402, 403, 404, where question was whether right of citizen-
ship in Virginia can be relinquished without complying with act relating
to expatriation; Amy v. Smith, 1 Litt. (Ky.) 341, holding that every white
person bom within United States is a citizen; Ware v. Wisner, 4 McCr.
69, 50 Fed. 312, holding that persons bom of citizens who never renounced
their citizenship within the rule laid down in the principal case have
not ceased to be citizens; Norris v. Doniphan, 4 Met. (Ky.) 407, where
right of Federal government over citizens was considered ; Brooks* v. Clay,
3 A. K. Marsh. 550, s. c, sub nom. Shearer v. Clay, 1 Litt. (Ky.) 266, hold-
ing that an American citizen removing to the dominions of a friendly
power is capable of holding and selling lands previously acquired; dis-
senting opinion in Shanks v. Dupont, 3 Pet. 267, 7 L. Ed. 675, discussing
the subject of expatriation and citizenship.
Prizes captured in violation of neutrality laws by our citizens and brought
here wUl be restored to rightful owners.
Approved in Llnvincible, 1 Wheat. 253, 258, 260, 4 L. Ed. 84, 85, 86,
a proceeding to obtain restitution of a prize ; Fay v. Montgomery, 1 Curt.
269, Fed. Cas. 4709, where vessel was seized as prize and the owners
filed libel for restitution and damages; The Schooner Tilton, 5 Mason,
471, Fed. Cas. 14,054, where a libel was brought to restore to the rightful
owner the possession of a ship; The Schooner Lively, 1 Gall. 322, 324,
Fed. Cas. 8403, on the point as to the damages allowed on the restitution
3 Dall. 171-184 NOTES ON U. S. REPORTS. 22
Qf a prize; Juando (Stoughton) v. Taylor, 2 Paine, 670, 674, 676, 681,
Fed. Gas. 7558, where court said that courts could not punish subject of
another government for executing mandates of his sovereign beyond its
jurisdiction; Hallett v. Lamothe, 3 Murph. (N. C.) 296, holding that courts
of common law have no jurisdiction over prizes; Novion v. Hallett, 16
Johns. 346, holding that jurisdiction in cases of prize and of everything
incidental belongs exclusively to admiralty; Brown v. United States, 8
Or. 137, 3 L. Ed. 514, on the point that couks of United States have as
full jurisdiction in matters of admiralty, maritime, and prize as admiralty
of England; The Ship Emulous, 1 Gall. 573, Fed. Gas. 4479, holding that
cargo of enemy in our ports at breaking out of war is confiscable ; Gotton
V. Wallace, 3 pall. 304, 1 L. Ed. 613, holding that where decree was
affirmed there could be no allowance of damages except for delay; Stewart
V. United States, 1 Gt. Gl. 117, holding captor had no such interest in
vessel recaptured as would compel the government to press a claim for it.
Distinguished in The Invincible, 2 Gall. 37, 40, Fed. Gas. 7054, holding
that trial of prizes belongs exclusively to captors; Teasdale v. Sloop
Rambler, Bee, 10, Fed. Gas. 13,815, holding that plea to jurisdiction can
only be interposed by defendant in propria persona.
Miscellaneous. Gited in Bond v. Storrs, 13 Gonn. 415, erroneously;
The Newaygo, 205 Fed. 181, rate of interest in admiralty claims oonforms
to legal rate of state, and is not necessarily six per cent.
0
3 DaU. 171-184, XL. Ed. 656, HYLTON Y. UNITED STATES.
A tax oh carriages Is not direct tax and does not have to be apportioned
among States according to numbers.
Approved in Brushaber v. Union Pac. Ry. Go., 240 U. S. 14, 19, 60 L. I|d.
600, 502, 36 Bup.Gt. 240, 242, upholding income tax provisions of tariff act
of 1913 ; Thomas v. United States, 192 U. S. 370, 48 L. Ed. 484, 24 Sup. Gt.
306, upholding stamp duty on sale of share of corporate stock imposed
by war revenue act of 1898; Knowlton v. Moore, 178 U. S. 85, 86, 94,
44 L. Ed. 987, 20 Sup. Gt. 764, upholding and construing 20 Stat. 448,
§§ 29, 30, relative to taxes on legacies; De Pass v. Bidwell, 124 Fed. 622,
upholding 31 Stat. 77, § 5, providing for revenues for Porto Rico ; Ex
parte White, 228 Fed. 91, holding army officer not subject to pbll tax
of State in which he was on duty, his residence being elsewhere; United
States V. Thomas, 115 Fed. 212, holding tax on corporate shares not direct ;
Territory v. Gonnell, 2 Ariz. 343, 16 Pac. 210, upholding law taxing all
liquor dealers within five miles of town at one price and liquor dealers
at wayside inns at less price ; Wheeler v. Weightman, 96 Kan. 66, L. R. A.
1916A, 846, 149 Pac. 984, holding void statute imposing lax payable on
record of real estate mortgage; Mark v. District of Golumbia, 37 App.
D. G. 566, 567, 37 L. R. A. (N. S.) 440, upholding wheel tax on automo-
biles; State V. Brodnax, 228 Mo. 46, 137 Am. St. Rep. 613, 128 S. W.
183, upholding stamp tax act of 1907; People v. Reardon, 184 N. Y. 447,
112 Am. St. Rep. 637, 77 N. E. 975, upholding tax on stock transfers;
Springer v. United States, 102 U. S. 597, 599, 602, 26 L. Ed. 257, 258, 259,
23 HYLTON v. UNITED STATES. 3 DaU. 171-184
holding that direct taxes are only capitation taxes and taxes on real
estate; Pacific Ins. Co J v. Soiile/ 7 Wall. 444, 445, 19 L. Ed. 99, holding
that income tax upon insurance companies under the act of July 13, 1866,
was a duty or excise; Edye t. Robertson, 21 Blatchf. 465, 18 Fed. 139,
holding that an act imposing a duty on passengers is not a capitation.
tax ; Scholey y. Rew, 23 Wall. 347, 23 L. Ed. 102, holding that a ^accession
tax was not a direct tax but an impost or excise; Smedberg v. Bentley.
22 Fed. Cas. 369, upholding income ta? of 1870 ; Fifield v. Close, 15 Mich.
506, and Smith v. Short, 40 Ala. 386, both holding that Congress had not
the power to require a stamp on process of State courts; dissenting opinion
in Rhinehart v. Scliuyler, 2 Gilm. 539, holding that law regulating classi-
fication and taxation of lands was constitutional; Veazie Bk. v. Fenno,
8 Wall. 544, 546, 19 L. Ed. 486, 487, holding that taxation of national
banks under act of March 13, 1866, was not a direct tax ; Dodge v. Woolsey,
18 How. 352, 15 L. Ed. 409, holding that where State chartered a bank
and charter stipulated amount of tax, statute fixing a different tax was
unconstitutional; Pollock* v. Farmers' L. & T. Co., 157 U. S. 570, 571, 576,
577, 616, 621, 623, 625, 626, 628, 631, 633, 636, 639, 640, 642, 646, 647, 89
L. Ed. 815, 818, 819, 832, 834, 836, 15 Sup. Ct. 685, 687, 689, 703, 714, 158
U. S. 623, 626, 627, 642, 647, 648, 649, 651, 653, 655, 657, 663, 665, 670,
686, 687, 689, 095, 698, 707, 711, 715, 39 L. Ed. 1120, 1122, 1127, 1129, 1133,
1137. 1142, 1146, 1147, 1150, 15 Sup. Ct. 915, 916, 922, 924, 933, 939, 941,
943, 944, 947, 95p, where the income tax law was held unconstitutional;
dissenting opinion in Solon v. State, 54 Tex. Cr. 291, 114 S. W. 362,
majority upholding statute prohibiting lending money to pay poll tax in
order to enable borrower to vote.
What is "direct tax" within meaning of Federal constitution. Note,
Ann. Oas. 1912B, 1829.
Constitutionality of poll taxes. Note, ,12 Ann. Oas. 317.
Poll taxes. Note, 29 L. B. A. 404.
Validity of stock transfer tax. Note, 8 L. B. A. (N. S.) 315.
Power to declare statute void will never be exercised except in a very clear
case.
Approved in Smeltzer v. St. Louis etc. R. Co., 158 Fed. 652, upholding
section 20 of Interstate Commerce Act of 1887; Flint River S. S. Co. v.
Foster, 5 Ga. 205, 48 Am. Dec. 257, Cotton v. County Comnirs. of Leon Co.,
6 Fla. 613, Cincinnati etc, R. R. Co. v. Commissioners of Clinton Co.,
1 Ohio St. 83, Carey v. Wyandot County, 20 Ohio, 4, Louisville etc. R. R.
Co. v. County Court, 1 Sneed, 670, 62 Am. Dec. 438, Emerick v. Harris,
1 Binn. 422, all following rule; White v. Kendrick, 1 Brev. (S. C.) 473,
holding an act extending the jurisdiction of justices to thirty dollars to be
nnconstitutional ; O'Neil v. McKewn, 1 S. C. 151, holding that Conprrcss
has power to make treasury notes lawful money and legal tender; United
States V. William, 28 Fed. Cas. 616, 617, upholding embargo law ; dissent-
ing opinion in Howard v. Illinois etc: R. Co., 207 U. S. 510, 62 L. Ed. 314,
28 Sap. Ct. 141, majority holding void Employers' Liability Act of 1906.
3 DaU. 184-198 NOT^S ON U. S, REPORTS. 24
3 DaJl. 184-188y 1 Ii. Ed. 662, HHJiS Y. BOSS.
Failure of record to show facte on w^b decree based not groimd for
reversaL
Explained in Pike v. Armistead^ 2 Dev. Eq. 25, holding that decree not
declaring any facts or any principle but simply dismissing the bill, will
not be, of course, reversed, but cause will be reheard upon proofs.
8 DaU. 188-198, 1 L. Ed. 663, McDONOUOH v. DANNEBT ft THE SHIP
MABT FOBD.
District Court's Jorlsdlction to award salvage against an English ship.
Cited in The Schooner Tilton, 5 Mason, 471, Fed. Cas. 14,054, an action
to recover possession by the owner of a vessel wrecked and sold; Bond v.
The Brig Cora, 2 Wash. 85, 2 Pet. Adm. 379, Fed. Cas. 1621, holding owner
of vessel and not freighter is entitled to salvage; Waterbury v. Myrick,
Blatchf. & H. 44, Fed. Cas. 17,253, an action in rem and personam to re-
cover salvage; The Brig C. W. Ring, 2 Hughes, 102, Fed. Cas. 3525, ap-
portioning salvage among owner, master and crew; Kennedy v. Ricker, 14
Fed. Cas. 321, allowing salvage to seaman; Tyson v. Prior, 1 Gall. 135,
Fed. Cas. 14,319, holding amount rests in sound discretion of court, and in
gei^eral it ought to be not less than one-third; Row v. The Brig, 1 Mason,
377, Fed. Cas. 12,093, holding that in general a moiety is rule of salvage in
cases of derelicts, but that the rule is flexible, yielding to circumstances;
Kennedy v. Ricker, Smith (N. H.), 438, discussing amount of salvage.
Explained in British Consul v. 22 Pipes, Bee, 180, Fed. Cas. 1900, holding
that salvage should never exceed more than one-half of the property saved.
Distinguished in The Ship Henry Eubank, 1 Sumn. 427, 428, Fed. Cas.
6376, where amount of salvage was discussed and the court said it was
the rule to allow third.
District Court having jurisdiction to award salvage baa jurisdiction to
determine ownership of residue.
Cited in Walker v. Sturbans, 38 Fed. 301, where court in adjusting
priority of several liens directed an execution to issue for the sale of land;
Leland v. The Ship Medora, 2 Wood. & M. 114, Fed. Cas. 8237, to point
that if court properly has jurisdiction and sells ship, it .may decree some of
the funds to claimants whose claim was not an admiralty one.
Immediately on capture of property captors acquire such right as no neutral
nation can justihy impugn or destroy.
Cited in Hopner v. Appleby, 5 Mason, 75, Fed. Cas. 6699, where a Spanish
vessel was captured by Colombian privateer and by collusion between cap-
tors and an American was wrecked on the coast of Florida, cargo landed
and sold, American becoming purchaser; Booth v. L'Esperanza, Bee, 93,
Fed. Cas. 1647, where vessels in distress are met with at sea and brought
into port of neutral power, they must be restored after payment of salvage;
The Divina Pastora, 4 Wheat. 68, 4 L. Ed. 616, holding that captures by
cruisers of other countries are regarded as other captures jure belli, legality
of which cannot be determined in courts of a neutral country.
25 WARE V. HYLTON. 3 Dall. 19d-285
\
Explained in L' Invincible, 1 Wheat. 268, 4 L. Ed. 86, holding that courts
of this Goontry cannot redress torts on high seas by cruiser regularly com-
missioned by foreign and friendly power unless such cruiser has been fitted
out in violation of our neutrality.
Appellate court wUl not take notice of iiChts of parties who have not
lOTMled.
Cited in The Gray Eagle, 9 Wall. 511, 19 L. Ed. 744, if owner of vessel
fails to appeal, presumption is that vessel is at fault on charge of negli-
gence; Mail Co. V. Flanders, 12 Wall. 136, 20 L. Ed. 250, to point that no
one but an appellant can be heard in an appellate court for reversal of a
decree rendered in a subordinate court; Vinal v. Spaiford, 139 Mass. 130,
29 N. E. 288, appeal by one party from a judgment against him does not
reopen judgment in his favor.
Miscellaneous. Cited erroneously on question of eminent domain, in
Varick v. Smith, 9 Paige, 559, and State v. Dawson, 3 Hill L. 111.
3 Dall. 109-286, 1 Is. Ed. 568, WABE Y. HTLTON.
Effect of Declaration of Independence on State sovereignty.
Cited in Scheible v. Bacho, 41 Ala. 433, 434, and Hubbard v. Harnden,
10 R. I. 250, holding southern States de facto but not de jure governments
daring the Civil War; United States v. Johnson, 25 Fed. Cas. 1233, holding
daring Civil War Federal government entitled to rules as to belligerency.
Citizenship of individuals after Declaration of Independence.
Cited in Inglis v. Sailors' etc. Harbor, 3 Pet. 160, 7 L. Ed. 639, discuss-
ing question of citizenship for purpose of inheritance.
Declaration of Independence was of independence of each State and not
States collectively.
Cited in Dred Scott v. Sandford, 19 How. 502, 15 L. Ed. 741, in discuss-
ing the status of African slaves prior to the Civil War.
Nation at war may seize and confiscate all movable property of its enemy»
indading debts due enemy's citizens.
Approved in Hanger v. Abbott, 6 Wall. 537, 18 L. Ed. 942, remarking
that power to confiscate debts is seldom or never practically exercised;
Thompson v. Carr, 5 N. H. 515, a land case where title was deraigned
through a confiscation act; Smith v. Brazelton, 1 Heisk. 59, 2 Am. Eep.
684, examining authorities and holding that southern States were entitled
to this and other belligerent rights just the same as the United States;
Perkins v. Rogers, 35 Ind. 145, 9 Am. Rep. 655, - collecting authorities and
holding statute of limitations suspended during Civil War; United States
V. One Hundred Barrels, 27 Fed. Cas. 294, to point that alien enemy cannot
sue in domestic court; dissenting opinion in Brown v. United States, 8 Cr.
143, 3 L. Ed. 516 (see s. c, 1 Gall. 580, Fed. Cas. 4479), arguing that
enemy's property found in the United States can be condemned without
any legislative act authprizing its confiscation, majority holding statute
necessary.
/
3 DalL 190-286 NOTES ON U. S. REPORTS. 26
Questioned in Norris v. Doniphan, 4 Met. (Ky.), 435, 436, argoing that
the power to confiscate i^o longer subsists.
ProviBlons of St&te Constitutions or laws In conflict with treaties althougb
previousliy enacted, are yoid.
Approved in Maiorano ▼. Baltimore etc. R. Co., 213 U. S. 273, 63 L. Ed.
795, 29 Sup. Ct;. 424, holding treaty with Italy did not give nonresident
alien relatives of subject of Italy right of action for damages for his death ;
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; Minnesota Canal & Power Co. v. Pratt, 101 Minn.
232, 11 L. R. A. (N, S.) 105, 112 N. W. 405, holding treaty as to flow of
Rainy Ri^r controlled right *of diversion by public service corporation;
Geofroy v. Riggs, 133 U. S. 267, 33 L. Ed. 645, 10 Sup. Ct. 297, holding
domestic law of District of Columbia as to aliens taking by descent, sus-
pended as to French citizens by treaty with France ; Hauenstein v. Lynham,
100 U. S. 489, 490, 25 L. Ed. 630 (reversing s. c, 28 Gratt. 75), holding
that Swiss treaty, pro tanto, superseded Virginia law as to aliens taking
by descent; Little v. Watson, 32 Me. 225, where treaty as to Canadian
boundary was held operative to divest rights of Maine claimants protected
by the State Constitution ; In re Parrott, 1 Fed. 501, 502, 6 Sawy. 369, 370,
holding California statute, forbidding corporations to employ Chinese, in
conflict with treaty with China; People v. Dibble, 16 N. Y. 224, and Fellows
v. Denniston, 23 N. Y. 427, applying principle to treaties with Indian tribes ;
In re Race Horse, 70 Fed. 606, where Wyoming statute J)rotecting game was
held repugnant to Indian treaty in certain respects; In re Rabasse, 47
La. Ann. 1455, 49 Am. St. Rep. 433, 17 South. 867, holding French treaty
provision as to representation of absent heirs overruled State statute ; Hep-
bum's Case> 3 Bland Ch. 121, 122, discussing the consequences and history
of the confiscation laws , cited simply to point that treaty is a law in Crane
V. Reeder, 25 Mich. 308, holding one naturalized under a treaty, naturalized
under a law; in general discussion, Norris v. Doniphan, 4 Met. (Ky.) 413,
430 ; Pollard v. Kibbe,' 14 Pet. 412, 10 L. Ed. 619, a land suit.
Distinguished in Wunderle v. Wunderle, 144 111. 54, 33 N. E. 197, holding
German treaty not infringed by State law as to inheritance by alien.
Treaty guaranties to aliens. Note, 16 L. B. A. 277.
Treaty-making power may annul State statutes and destroy rights acquired
by individuals in virtue of such acts.
Cited in Geofroy v.* Riggs, 133 U. S. 267, 83 L. Ed. 646, 10 Sup. Ct. 297,
discussing treaty-making power in holding that treaty with France sus-
pending certain domestic laws of District of Columbia so far as conflict-
ing; Hauenstein v. Lynham, 100 U. S. 489, 490, 25 L. Ed. 630 (reversing
s. c, 28 Gratt. 75), construing Swiss treaty.
The States have often taken private property for public use, paying com-
pensation therefor.
Cited in Sinnickson v. Johnson, 17 N. J. L. 145, 34 Am. Dec. 187, with
remark that right is not dependent upon constitutional provisions, but is
27 NOTES ON U. S. REPORTS. 3 Dall. 285-301
an attribute of sovereignty; Varick v. Smith, 9 Paige, 559, ai^endo; dis-
senting opinion in State v. Dawson, 3 Hill, 111, majority affirming right
to take property for streets without compensation.
VTliether court may declare treaty nnconstltutlonal, not decMled.
Cited in Lacroix v. Escobal, 37 La. Ann. 537, noting other cases where
qaestion raised.
State laws jn conflict with a treaty ratified prior to the Oonstltution are
TOld.
Referred to in Sims v. Irvine, 3 Dall. 464, 1 L. Ed. 681, case involving
military land appropriation; Cole v. Madison Co., Breese (Ill.)y 1^9, 12
Abl Dec. 166, holding repeal of penal law retroacted to annul pending suits.
Debts not confiscated and not paid revive at conclusion of war.
Cited in Hanger V. Abbott, 6 Wall. 537, 18 L. Ed. 942, holding period of
Civil War is to be saved from statute of limitations; Newton v. Bushong,
22 Gratt. 637, 12 Am. Bep. 559, *where, however, property was confiscated ;
McVeigh v. Bank, 26 Gratt. 200, denying defendant's claim that war ipso
facto released debt sued on; Skelley v. St. Louis etc. B. Co., 176 Mo. App.
164, 161 S. W. 880, deaning "confiscate."
Ck>iirt8 of United States adopt law of nations in its modem state of purity.
Cited Ella Warley, Blatchf . Pr. 207, Fed. Cas. 4371, affirming power of
courts to appraise prize property and transfer it to use of government
before condemnation.
IdBglslatlvf acts beyond scope of legislative power are void.
CSted in Dale v. Governor, 3 Stew. 418, collecting cases.
A Constitution of State is the fundamental law of that State.
Approved in State v. Roach, 230 Mo. 433, 139 Am. St. Rep. 639, 130 S. W.'
694, holding initiative petition to fix senatorial districts was for legislative
act and not for constitutional amendment.
Treaties are to be construed under general rule that intention of parties
governs.
Approved in Maiorano v. Baltimore etc. R. Co., 216 Pa. 406, 116 Am. St.
Rep. 778, 65 Atl. 1078, applying rule in construing treaty with Italy.
3 DalL 285-296, 1 L. Ed. 606, OEYEB Y. MICHEIf AND THE SHIP DEK
It Is mere replacement, to replace guns of privateer and substitute new for
old gun carriages in ports of neutral. v
Approved and followed in Moodie v. The Ship Phoebe Anne, 3 Dall. 319,
1 L. Ed. 619.
S DaU. 297-SOl, 1 L. Ed. 610, UNITED STATES Y. LA VENGEANCE.
Information to forfeit vessel for illegal exportation is civil cause of admir-
alty and maritime Jurisdiction.
3 Dall. 297-501 NOTES ON U. S. REPORTS. 28
■
Approved in Four Hundred and Forty-Three Cans of Frozen Egg Product
V. United States, 226 U. S. 180, 57 L. Ed. 178, 33 Sup. Ct. 50, referring to
provision in Pure Food Act of 1906, for trial by jury; Kirkland v. State, 72
Ark. 179, 106 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 tbat mere preponderance of evi-
dence suffices ; Rose v. State, 171 Ind. 670, 17 Ann. Gas. 228, 87 N. E. 106,
holding proceeding under act of 1907 for sei^ng intoxicating liquors gov-
erned by rules in civil actions; The Anonymous, 1 Gall. 24, 25, Fed. Gas.
444, to effect that libels in rem for violations of municipal laws are of
admiralty and maritime jurisdiction ; United States v. Schooner Sally, 2 Cr.
406, 2 L. Ed. 820, question of forfeiture of a vessel under act of Congress
against slave trade is of admiralty and maritime jurisdiction ; The Steamer
Missouri, 3 Ben. 515, Fed. Cas. 9662, proceeding against vessel under
revenue laws to recover penalty is civil case of admiralty jurisdiction ; The
Sarah, 8 Wheat. 394, 6 L. Ed. 644, Whelan v. United States, 7 Cr. 112, 8
L. Ed. 286, and United States v. Schooner Betsey and Charlotte, 4 Cr. 446,
452, 2 L. Ed. 674, 676, all holding that all seizures under laws of import,
navigation, or trade on waters navigable from the sea by vessels of ten
or more tons burden are civil cases of admiralty and maritime jurisdiction ;
The Samuel, 1 Wheat. 14, 4 L. Ed. 24, holding that prosecutions under
nonimportation laws are causes of admiralty and maritime jurisdiction;
Novion V. Hallett, 16 Johns. 346, no action at common law lies for an
illegal capture on high seas as prize of war; The Wave, 1 Blatchf. & H. 240,
Fed. Cas. 17,297, United States courts have jurisdiction over claims for
salvage upon waters within the ebb and flow of the tide though within body
of State ; The Steamship Idaho, 29 Fed. 189, 12 Sawy. 159, in case of seizure
place of seizure and not that of commission of act determines jurisdiction;
.United States v. Burlington etc. Ferry Co., 21 Fed. 338, 340, proceeding
by information against defendants in personam charging them, as owners
and masters, with violating laws regulating steam yessels; The Margaret^
9 Wheat. 428, 6 L. Ed. 12t, libel for forfeiture under registry act;
United States v. One Case of Silk, 4 Ben. 541, Fed. Cas. 15,925, libel against
goods to forfeit them for violation of the revenue laws; United States v.
Arms and Ammunition, 24 Fed. Cas. 863, holding this jurisdiction exercis-
able in case of forfeiture as well upon high seas ; The Meteor, l7 Fed. Cas.
180, affirming jurisdiction in case of forfeiture for breach of neutrality;
. United States v. Athens Armory, 2 Abb. (U. S.) 143, Fed. Cas. 14,473, s. c,
35 Qa. 357, a proceeding to enforce a seizure under confiscation act; Union
Ins. Co. V. United States, 6 Wall. 766, 18 L. Ed. 882, to point that proceed-
ing under confiscation act of 1861 should be conformed to common-law
side of court; dissenting opinion in the Confiscation Cases, 20 Wall. 113,
22 L. Ed. 325, holding that an information under confiscation act of 1862
has substance and all requisites of common-law proceeding; Waring v.
Clark, 5 How. 458, 12 L. Ed. 234, holding that United States admiralty
and maritime courts have jurisdiction over cases of collision in tide water
on the Mississippi River; The Eagle, 8 Wall. 26, 19 L. £d« 370, a libel for
29 UNITED STATES v. LA VENGEANCE. 3 Dall. 297-301
a eolUsion oeeurring in Detroit River; De Lovio t. Boit, 2 GkiU. 474, Fed.
Cas. 3776, admiralty has jurisdiction over all maritime contracts whereso-
ever executed and whatever the form of the stipulations; The Belfast, 7
Wall. 638, 19 L. £d« 270, a proceeding to enforce a maritime lien; Leland
v. The Ship Medora, 2 Wood. & M. 109, Fed. Cas. 8237, libel for repairs
and supplies; United States v. La Vengeance, 2 Ware, 109, Fed. Cas. 6914,
libel in personam for the loss of goods ; The New Jersey S. N. Co. v. Mer-
chants' Bank, 6 How. 387, 12 L. Ed. 484, affirming a judgment upon a libel
in personam against a steamboat company for the loss of specie; United
States V. Wiltberger, 6 Wheat. 115, 5 L. Ed. 48, United States courts have
no jurisdiction of manslaughter by master upon a seaman on merchant
vessel in River Tigris ; United States v. Ortega, 11 Wheat. 474, 6 L. Ed. 623,
where person was indicted for offering violence to foreign minister ; Roberts
v. Skolfield, 3 Ware, 187, Fed. Cas. 11,917, an action for a joi;jt tort can-
not, in admiralty, be united with a tort against one separately; Slocum v.
Wheeler, 1 Conn. 446, to render judgment of the District Court conclusive
on the State court, District Court must have had jurisdiction.
Distinguished in People v. Tyler, 7 Mich. 273, where a party was in-
dicted for a murder committed on an American vessel in waters outside
the State and the United States.
Criticised in dissenting opinion in Waring v. Clark, 5 How. 486, 12 L. Ed.
447, and in dissenting opinion, in Jackson v. Steamboat Magnolia, 20 How.
310, 329, 15 L. Ed. 915, 924, both saying it might be doubted whether princi-
pal ease was sufficiently considered.
Suit for statutory penalty as civil or criminal prosecution. Note, 27
L. B. A. (N. S.) 754.
Court takes Judiolal notice of fact that Sandy Hook is upon water.
Approved in Ex parte Lair, 177 Fed. 794, holding court will take judicial
notice that sea-going vessel carrying emigrants from France did not find
port of entry in northern district of Illinois ; Hipes v. Cochran, 13 Ind. 177,
where the court ^ook notice of facilities of Iraivel in determining time neces-
sary to travel from point to point ; Gulf etc. Ry. Co. v. State, 72 Tex. 409,
13 Am. St. Bep. 818, 10 S. W. 82, where court took judicial notice of lead-
ing geographical features of land; Price v. Page, 24 Mo. 68, where court
took notice that State of Missouri is east of the Rocky Mountains ; Peyroux
V. Howard, 7 PeU 342, 8 L. Ed. 707, where court took judicial notice of
New Orleans to determine whether the tide ebbed and flowed there ; Bruma-
gim V. Bradshaw, 39 Cal. 40, where court took judicial notice that the
Potrero in year 1850 was separated from the city of San Francisco and
that it is now a portion of city of San Francisco.
Judicial notice. Note, 89 Am. Dec. 678.
Judicial notice of geographical facts. Note, 12 Ann. Gas. 927.
Whether in any case the costs will he awarded against United Statea,
((aery*
3 DaU. 302-306 NOTES ON U. S. REPORTS. 30
Cited to point that costs ard never awarded against the United States in
Hathaway v. Roaeh, 2 Wood. & M. 68, Fed. Gas. 6213, an action' for the
violation of a patent in which court discussed the allowance of costs.
State's right to appeal in criminal case. Note, 19 Ii..B. A. 344*
3 DaU. 302-304, 1 L. Ed. 612, COTTON v. WAUiACE.
Damages on afflimance.
Cited, but not in point, in Lewis v. Outlaw, 1 Overt. 143.
Miscellaneous. Cited in The Newaygo, 205 Fed. 181, rate of interest on
admiralty claim's is that of the^tate and not necessarily six per cent.
3 DalL 805-306, 1 L. Ed. 613, HUNTEB v. FAIBFAX'S DEVISEES.
Oontltfeance because of death- of only counsel employed.
Approved in Allen v. State of Geoi^a, 10 G^. 92, holding illness of coun-
sel ground for continuance; Borden v. Houston^ 2 Tex. 604, to authorize
reversal for granting or refusing continuance, it must appear that judge
has abused his discretion.
Continuances of civil causes. Note, 74 Am. Dec. 150.
3 DaU. 306, 1 L. Ed. 613, ABCAMBEL V. WISEMAN.
Counsel fees are not allowed in the assessment of 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 damliges; Missouri Pacific Ry. Co.
V. Larabee, 234 U. S. 468, 58 L. Ed. 1405, 34 Sup. Ct. 979, holding neither
State court nor statute could gi^e attorneys* fees to party prosecuting writ
of error in Federal court; TuUock v. Mulvane, 184 U. S. 511, 515, 46 L. Ed.
666, 667, 22 Sup. Ct. 377, 379, holding attorneys' fees not recoverable in
action on injunction bond; Siimpson v. The Railroads, 1 Wall. Jr. 170,
Fed. Cas. 13,456, jury cannot allow plaintiif in patent case as damages any
expenditure for counsel fees or other charges necessarily incurred in vindi-
cating his rights ; Whittemore v. Cutter, 1 Gall. 438, Fed- Cas. 17,600, hold-
ing that in an action for violation of a patent right, counsel fees were not
ground of damages ; Pacific Ins. Co. v. Conrad, 1 Bald. 143, Fed. Cas. 10,647,
holding that in an action of trespass counsel fees were not recoverable;
Jacobus V. Monongahela etc. Bank, 35 Fed. 397, counsel fees and other
expenses not taxable as costs in defending against an attachment wrong-
fully laid; McDaniel v. Crabtree^ 21 Ark. 434, an action for damages for
suing out of an injunction; Gear v. Shaw, 1 Pinn. 615, and Oelrichs v.
Spain, 15 Wall. 230, 231, 21 L. Ed. 46, both holding that attorneys' fees
were not recoverable in a suit on an injunction bond; Stringfield v. Hirsch,
94 Tepn. 432, 45 Am. St. Rep. 737, 29 S. W. 611, holding that in an action
on an attachment or injunction bond, attorneys' fees are not recoverable;
31 NOTES ON U. S. REPORTS. 3 D;dl. 307-319
\ . ■
Gadsden v. Bank of Georgetown, 5 Rich. 344, holding that in a snit on
an injunction bond counsel fees were not recoverable.
Denied in Boston Mfg. Co. v. Fiske, 2 Mason, 120, 122, Fed. Gas. 1681,
in an action for infringement of patent jury could allow plaintiff expenses
for counsel fees or other eharges necessarily incurred ; Hannibal etc. R. R.
Co. V. Shepley, 1 Mo. App. 257, holding that in an action on an injunction
bond, the word ''damages" would be held to include reasonable attoi^neys'
tees*
Distinguished in Bucki etc. Lumber Co. v. Fidelity etc. Co., 109 Fed.
405, 406, 408, holding under Florida statute, attorneys' fees recoverable in
suit on attachment bonds ; Mulvane v. TuUock,. 58 Kan. 632, 50 Pac. 901,
granting attorneys' fees in suit on injunction bond given in Federal court;
Wisconsin etc. Bank v. Durner, 114 Wis. 374, 90 N. W. 436, allowing coun-
sel fees.
Recovery on injunction bond of attorneys' fees necessarily expended
in dissolving injunction. Note, 16 L. R. A. (N. S.) 60.
3 DaU. 307, 1 L. Ed. 614. MOODIE v. THE SHIP ALFRED.
Building of vessel to be used as privateer, fitting her with some of eqaip-
ments used in war, and her sale to belligerent is not violation of neutrality.
Cited on point as to what constitutes outfitting of privateer in a neutral
Iiort, in The Divina Pastora, 4 Wheat. 69, 4 L. Ed. 616.
Distinguished in The Meteor, 17 Fed. Gas. 200, condemning vessel fitted
oat in United States as violating neutrality with Spain.
3 DalL 308-318, 1 L. Ed. 614, OLNET v. ABKOU>.
Superior Court of Bliode Island is highest court of law of that State within
meaning of twenty-fifth section of judicial act.
Cited in Fleming v. Clark, 12 Allen, 198, holding that Supreme Court
would not discharge prisoner convicted in Superior Court, although writ
of error had been issued by justice of the Supreme Court of United States.
What adjudication of State courts reviewable in Federal Supreme
Court. Note, 62 L. R. A. 619.
Rejection of bond for duties proper where it appears a former bond due
and unsatisfied.
Cited in Howland v. Harris, 4 Mason, 499, 501, Fed. Cas. 6794, where
question was as to liability of consignee for duties.
3 Dall. 319, 1 la. Ed. 618, MOODIE V. THE SHIP PHOEBE ANNE.
What is augmentation of force in privateer.
Cited in Den Onzekeren, 3 Dall. 296, 1 L. Ed. 610, holding mere replace-
ment of guns of foreign privateer in neutral port is not an augmentation
of her force, ^ted as' to what was not an illegal outfitting in a neutral
port in The Divina Pastora, 4 Wheat. 69, 4 L. ISd. 516, discussing question
of jurisdiction of Admiralty Courts in cases of captured.
/
3 Dall. 320-330 NOTES ON U. S. REPORTS, 82
3 DaU. 820-321, 1 L. Ed. 619, OBATliON T. VIBOINXA.
Serrlee of proc«M In motion ftgainst » State.
Approved in State v. Huston, 21 Okl. 785, 786, 97 Pac. 983, 984, boldiug
Govei^nor had power to institute suit on behalf of State; Henry v. State,
87 Miss. 34, 95, 39 South. 863, 884, under Constitution, Governor cannot
sue in name of State; Oswald v. New York, 2 Dall. 415, 1 L. Ed. 438, where
the court made an order that unless the State appeared by the first day of
the next term or showed cause, judg^OTit would be entered by default
against the State; New Jersey v. New York, 3 Pet. 466, 7 L. Ed. 748, where
the court did not require an ex parte argument in favor of their authority
to grant a subpoena in a proceeding by New Jersey against State of New
York ; Rhode Island v. Massachusetts, 12 Pet. 760, 761, 9 L. Ed. 1276, where
court held that if State shall neglect to appear, no coercive measures will
be taken to compel appearance, bnt complainant will be allowed to proceed
ex parte ; New Jersey v. New York, 5 Pet. 289, 290, 291, 8 L. Ed. 129, dis-
cussing procedure where State is party; Florida v. Georgia, 17 How. 49?,
15 L. Ed. 189, permitting attorney^ general to intervene in a boundary suit
between State; Kentucky v. Dennison, 24 How. 97, 16 L. Ed. 725, upholding
service on GK)vemor.
Court may adopt rules to govern its proceedings.
Cited in In re Finks, 41 Fed. 386, holding that the sureties of a clerk
are liable for his misappropriation under an order of court, not based upon
direct^ statutory authority.
Miscellaneous. Cited in Whitford v. Panama R. Jl. Co., 23 N. Y. 471,
not in point.
3 DaU. 321-330, 1 Ii. Ed. 619, WISOABT ▼. D'AUOHT.
Finding that conveyance Is intended to defraud is finding of fact.
Cited in Carter v. Carter, 5 Tex. 99, where necessity of alleging fraudu-
lent intent was considered; Matter of Hissim, 3 Penr. & W. 166, where
question was as to whether certain conveyance was fraudulent.
On removal of equity or admiralty to Supreme Court, statement of facts is
conclusive in absence of evidence.
Approved in Connor v. United States, 214 Fed. 527, 131 C. C. A. 68,
holding court had not absolute discretion to set aside findings of master,
but findings on conflicting evidence were unassailable ; Jennings v. The Per-
severance, 3 Dall. 337, 1 L. Ed. 626, holding that statement of facts sent
up with record is conclusive; The Abbotsford, 98 U. S. 442, 26 L. Ed. 169,
holding findings of fact by Civil Court in admiralty cases conclusive ; Insur-
ance Co. V. Folsom, 18 Wall. 249, 21 L. Ed. 833, holding that if finding of
Circuit Court be general one Supreme Court will only review questions
of law presented by bill of exceptions or apparent on face of pleadings;
Davis V. Schwartz, 155 U. S. 636, 39 L. Ed. 293, 15 Sup. Ct. 239, holding
that in a case referred to master, there is a presumption of correctness of
his finding; Walters v. Western & A. R. Co., 69 Fed. 710, master's report
33 WISCART V. D'AUCHY. 8 DaU. 321-330
mast be fteoepted by court in absence of evidence of bias or clear mistake ;
United States Trust Co. v. Mercantile Trust Co., 88 Fed. 153, holding toas-
ter's findings binding where based on conflicting evidence.
Error and not appeal Is proper mode of reviewing equity and admiralty
causes in Supreme Court.
Approved in Nashville Ry. & Light Co. v. Bunn, 168 Fed. 865, 64 C. C. A.
274, holding judgment in mortgage foreclosure 'reviewable on appeal only ;
Gloucester Ins. Co. v. Younger, 2 Curt. 336, Fed. Cas. 5487, where practice
of appeal without evidence on facts found was disapproved; Gallion v.
McCaslin, 1 Blackf. 95, to point that in Supreme Court practice was for
chancery cases to be removed thither only by a writ of error with state-
ment of facts; Republic of Texas v. Smith, DaU. (Tex.) 409, where remedy
by appeal was discussed; Cotton v. Wallace, 3 Dall. 304, 1 L.v£d« 613,
arguendo.
IMstinction between appeal and writ of error.
Approved in Choctaw etc. R. Co. v. Rice, 7 Ind. Ter. 518, 104 S. W. 821,
and Behn, Meyer & Co. v. Campbell & Go Tauco, 205 U. S. 407, 61 L. Ed.
859, 27 Sup. Ct. 502, both refusing to review facts on writ of error; Elliott
V. Toeppner, 187 U. S. 334, 47 L. Ed. 208, 23 Sup. Ct. 136, reversing bank-
ruptcy decree on matters of law ; Munson S. S. Liner v. Miramar S. S. Co.,
167 Fed. 961, 93 C. C. A. 360, holding appeal in admiralty case opens case
for trial de novo ; Lewis v. Little, 7 Ind. Ter. 606, 104 S. W. 852, dismiss- ^
ing writ of error for failure to join all parties defendant against whom
judgment was rendered; Chattanooga v. Keith, 115 Tenn. 689, 94 S. W. 63,
upholding provision of Chattanooga charter denying right of appeal from
city court where fine does not exceed ten dollars; Tyson v. Scott, 116 Va.
252, 81 S. E. 60, holding appeal not new suit under section 2934 of code;
Wingfield v. Neal, 60 W. Va. 113, 116 Am. St. Rep. 882, 9 Ann. Cas. 982,
lOL. B. A. (N. S.) 448, 54 S. E. 49, holding appeal from Circuit to Supreme
Court is beginning of new suit; Bumbalek v. Peehl, 95 Wis. 128, 70 N. W.
71, following, rule ; State v. Jones, 7 Qa. 423, to effect that writ of error
removes nothing for examination but the law; United States v. King, 7
How. 865, 12 L. Ed. 948, holding that a writ of error brings up only ques-
tions of law, and questions of fact remain unexaminable ; United States v.
Wonson, 1 Gall. 6, Fed. Cas. 16,750, holding that writ of error is the proper
process to correct errors of District Court in common-law actions; Dover
V. Richards, 151 U. S. 663, 664, 38 L. Ed. 807, 14 Sup. Ct. 454, holding that
the Supreme Court upon a writ of error to highest court of a State cannot
review its judgment upon question of fact; dissenting opinion in Styles v.
Tyler, 64 Conn. 472, 30 Atl. 179, holding that jurisdiction of Supreme Court
relates to determination of questions of law and not trial and retrial of
questions of fact; Vanderheyden v. Reid, 1 Hopk. Ch. 469, holding that
by the practice of civil law, cause removed by an appeal is reheard at large
upon facts as well as law; Howe v. Patterson, 5 Or. 355, holding that a
suit in equity which has been fully tried in Circuit Court and decree therein
rendered must, if appealed, be tried anew; Lyles v. Barnes, 40 Miss. 609^
1—3
\
8 DaU. 321-330 NOTES ON U. 8. REPORTS. 34
holding that on appeals from the County to the Circuit Court trial is
not de novo on its merits, but upon record; Ex parte Henderson, 6 Fla.
289, holding that appeals may be taken from Justice's Court to Circuit
Court and tried by latter agreeably to the Constitution; United States v.
Wonson, 1 Gall. 8, 14, Fed, Cas. 16,750, holding that where there has been
a jury trial in District Court there cannot be a new trial by a jury in
Circuit Court; Bishop v. State, 43 Tex. 400, where court reversed a case
for a clearly erroneous instruction, although excepted to for first time
on appeal; Christianson v. Farmers' Warehouse Assn., 6 N. D. 445, 67
N. W. 302, holding an act providing that all cases shall on appeal be tried
anew, did not require Supreme Court to perform any functions not per-
taining to appellate jurisdiction; United States v. Sawyer, 1 Gall. 102,
Fed. Cas. 16,227, court saying that whenever the decision below shuts out
evidence necessary for final decision, no proper judgment could be given
without remanding cause for further proceedings; Barlow v. Daniels, 25
W. Va. 521, where constitutional prohibition against retrying a case tried
by a jury otherwise than according to the common law was considered;
Merrill v. Petty, 16 Wall. 342, 21 L. Ed. 449, where an appeal on a libel
in personam was dismissed; Studabaker v. Markley, 7 Ind. App. 369, 34
^, E. 607, holding that in a proceeding to have a person declared of
unsound mind, petitioner can appeal only as to costs; Day v. Holland, 15
Or. 470, 15 Pac. 859, holding that on appeal, a decree until annulled or
reversed is binding; United States v. Goodwin, 7 Cr. 110, 8 L. Ed. 285,
holding that no writ of error lies in United States Supreme Court to reverse
judgment of Circuit Court in civil action which has been carried up to
Circuit Court from the District Court by writ of error; United States v.
Coe, 155 U. S. 83, 39 L. Ed. 78, 15 Sup. Ct. 18, holding that judicial action
of al) inferior courts established by Congress may be subjected to the
appellate jurisdiction of Supreme Court.
Basis of Supreme Oonrt's appellate jurisdiction.
Approved in United States v. Mar Ying Yuen, 123 Fed. 160, holding
government has no appeal from commissioner's order giving Chinese right
to land; Fleming v. Fleming, 40 Fla. 155, 23 South. 572, holding appeal
cannot be entered to day of same term; Ex parte France, 176 Ind. 101, 95
N. E. 525, construing power of Supreme Court to review decisions of
appellate court; Ex parte McCardle, 7 Wall. 513, 19 L. Ed. 265, holding
that jurisdiction of court comes from the Constitution and is not derived
from acts of Congress ; The Francis Wright, 105 U. S. 384, 26 L. Ed. 1101,
holding that actual jurisdiction under Constitution is confined within such
limits as Congress sees fit to prescribe; Colorado Cent. Mining Co. v.
Turck, 150 U. S. 141, 37 L. Ed. 1031, 14 Sup. Ct. 36, to the point that
Supreme Court exercises appellate jurisdiction only in accordance with act
of Congress on that subject; Nashville etc. Ry. Co. v, Taylor, 86 Fed. 171,
discussing nature and extent of Federal jurisdiction; Murdock v. City of
•Memphis, 20 Wall. 620, 22 L. Ed. 439, where the judicial power of Supreme
Court of United States was discussed; Baker v. Biddle, 1 Bald. 406, Fed.
35 / WISCART V. D'AUCHY. 3 Dall. 321-^330
Cas. 764, holding that the sixteenth section of the judiciary act is a declara-
tory act settling the law as to cases of equity jurisdiction in the nature
of a proviso, limitation, or exception to its exercise; State v. Daugherty,
5 Tex. 3, 4, and Rogers v. Kennaid, 54 Tex. 38, both construing a consti-
tutional grant of jurisdiction somewhat similar; Harris Mfg. Co. v. "Walsh,
2 Dak. Tr. 43, 3 N. W. 309, to point that an affirmative description of
power implies a negation of appellate powers not comprehended within
it; Curry v. Marvin, 2 Fla. 417, holding that an act limiting the jurisdic-
tion of the Supreme Court did not conflict with the Constitution; Warner
V. Uncle Sam, 9 Cal. 735, holding that the failure of Congress to provide
for an appeal from State courts in civil admiralty cases cannot affect
question as to their concurrent original jurisdiction; Bamett v. Meredith,
10 Gratt. 655, where nature of appellate jurisdiction was considered;
Tarborough v. The State, 2 Tex. 527, holding an appeal does not lie from
award of District Court refusing hail; Robinson v. Baillieul, 2 Tex. 161,
holding that no appeal lies from an interlocutory judgment; Rupert v.
Board of Commrs., 2 Idaho, 22, 2 Pac. 719, holding no appeal lies from
judgment of District Court upon an election matter; dissenting opinion
in United States ex rel. y. .Flidges etc., 3 Wall. 677, 18 L. Ed. 113, holding
that where an« appeal pending in the District Court from a decree of the
commissioners to settle California titles was transferred to Circuit Court,
an appeal lay to United States Supreme Court; Dismukes y. Stokes, 41
Miss. 435, where court said that the High Court of Errors and Appeals
had such jurisdiction as properly belonged to such a court and held that
it was for the legislature to determine this ; American Constr. Co. v. Jack-
sonville etc. R. R. Co., 148 U. S. 378, 87 L. Ed. 489, 13 Sup. Ct. 761, where
there were petitions in alternative for mandamus or certiorari to United
States Circuit Court of Appeals ; Ex parte Bradley, 7 Wall. 384, 19 L. Ed.
221, holding that mandamus would lie by United States Supreme Court to
an inferior court to restore an attorney disbarred by latter court when
it had no jurisdiction; Ex parte Crane, 5 Pet. 205, 8 L. Ed. 98, Ivilding
Supreme Court could compel circuit judge of United States to sigikbill of
exceptions ; Ex parte Lange, 18 Wall. 205, 21 L. Ed. 888, holding that where
prisoner shows he is held under Federal judgment without authority
Supreme Court will by habeas corpus or certiorari look into record; Ten-
nessee v. Davis, 100 U. S. 290, 25 L. Ed, 659, where party was indicted
for murder in State court, and on his petition showing he was an officer
of United States in discharge of his duties, case was removed to Federal
courts; dissenting opinion in Williams v. Louisville etc. R. Co., 176 Ala.
657, 58 South. 324, construing power of Supreme Court to superintend
Court of Appeals; dissenting opinion in State v. Thayer, 158 Mo. 62, 58
S. W. 18, majority holding appeal lies from Criminal County Court to
Supreme Court. *
Distin^ished in Finlen v. Heinze, 27 Mont. 127, 69 Pac. 829, 70 Pac.
518, holding Constitution does not give legislature power to limit Supreme
Court's appellate jurisdiction; People v. Jordan, 65 Cal. 648, 4 Pac. 686,
holding that where legislature has prescribed no means of taking an appeal.
3 DaU. 331-336 NOTES ON U. S. REPORTS, 36
appellate court has inherent power to establish any appropriate means of
procedure.
On requirements of statement of seasons of appeal in equity case.
Note, Ann. Gas. 1914D, 522.
8 Dan. 881-332, 1 I.. Ed. 823, HtLLS T. BOSS.
Apipearance by partnersldp and attorney's authority.
Approved in Taylor v. Felder, 3 Ga. App. 110, 59 S. E. 329, holding judg-
ment entered on appearance by one partner for partnership binds only
partnership assets; King v. Nat. Oil Co., 81 Mo. App. 165, holding that
notice to one partner is notice to others ; Grazebrook v. McCredie, 9 Wend.
441, where judgment was entered on a cognovit by an attorney as attorney
of two partners, when he was employed by only one; Lucas ▼. Bank of
Darien, 2 Stew. 319, where court said that one partner may acknowledge
service for firm; Scott v. Dunlop, 2 Munf. (Va.) 356, holding that if
names of partners be omitted in writ and declaration, and writ be served
on person not named in either, judgment against the company cannot be
sustained ; Deniott v. Swain, 5 Stew. & P. 296, holding that acknowledgment
by one partner of service of process after dissolution is not authorized;
Beal V. Snedicor, 8 Port. 525, holding that if both defendants appear,
advantage cannot be taken of irregularity of the service ; Taylor v. Coryell,
12 Serg. & R. 250, holding that one partner may bind by an agreement
not under seal to refer any partnership matter; Harshey v. Blackman,
20 Iowa, 171, 89 Am. Dec. 522, holding that party represented by an unau-
thorized attorney, to be relieved, must negative presumption of authority;
Lagow V. Patterson, 1 Blackf. 327, holding that where in suit against
four defendants, an attorney apx>eared, the judgment ought not to be
arrested merely because capias had been executed on only two defendants ;
Miller v^ Ewing, 8 Smedes & M. 428, holding that where process is not
served, but an attorney files a plea to suit, such plea constitutes an appear-
ance; The Schooner Joseph H. Toone, Blatchf. Pr. 259, Fed. Cas. 7542,
to point that appearance of owner by proctor would cure want of monitioq.
or due notice to vessel and would stand as notice to the owner.
Distinguished in Clarke v. State V. R. Co., 136 Pa. St. 416, 20 Atl. 563,
holding that majority of partners may give valid warrant of attorney in
name of firm.
Partner's power to authorize appearance for firm. Note, IS Am. Dec.
726.
Effect of judgment on unauthorized appearance. Note, 21 L. B. A.
848, 849. I
8 DalL 888-335, lli. Ed. 624, THE GBAND 8A0HEM, DEL OOL ▼. ABNOLD.
Cause for seizure of neutral vessels.
Cited in The Schooner Tilton, 5 Mason, 471, Fed. Cas. 14,054, holding
that admiralty has jurisdiction over petitory as well as possessoiy suits
37 THE GRAND SACHEM, DEL COL v. ARNOLD. 3 Dall. 333-336 ,
to reinstate owners of ships ; The Delta, Blatchf . Pr. 135, Fed. Cas. 3777,
holding that where knowledge of blockade exists vessel cannot lawfully "
approach port, even to inquire as to its continuance; Fay v. Montgomery,
1 Curt. 269, Fed. Cas. 4709, to effect that it is not enough to set up that
vessel was captured as prize to bar libel for marina tort in seizing vessel ;
Bouysson v. Miller, Bee, 188, Fed. Cas. 1709, where court said that principal
case implied that after condemnation capture would be regular.
Limited on point as to jurisdiction of United States courts in matters
of prizes made by foreign cruisers, in The Invincible, 2 Gall. 38, 41, Fed.
Cas. 7054, holding that trial of prizes belongs exclusively to courts of
country of captors.
Criticised and explained in Llnvincible, 1 Wheat. 259, 261, 4 L. Ed. 86,
holding that courts have no jurisdiction to redress any torts on high seas
by cruiser commissioned by foreign and friendly power.
8ei2ding and bringing )k vessel for fnrtlier examination.
Cited in The Jane Campbell, Blatcfif . Pr. 104, Fed. Cas. 7205, holding
that settled rule is to require captors to bring in for examination master
and principal officers and some of crew.
IdabUity of owners of privateer for offlceis' miscondtict and amount of
damages.
Cited in The Amiable Nancy, 3 Wheat. 560, 4 L. Ed. 469, an. action for
an illegal seizure; British Consul v. Thompson, Bee, 142, Fed. Cas. 1899,
where there was no ground for a capture, owner could recover damages and
have goods restored; The Amiable Nancy, 1 Paine, 119, Fed. Cas. 331, hold-
ing that if master or crew of privateer exceed their authority, owners
are Kable; The Schooner Lively, 1 Gall. 322, Fed. Cas. 8403, holding that
on an illegal capture supposed profits are not allowable and where voyage
has not been lost, freight is not proper item; Pope v. Nickerson, 3 Story,
474, Fed. Cas. 11,274, where question was as to what law governs liability
of owners; The Umbria, 166 U. S. 422, 41 L. Ed. 1062, 17 Sup. Ct. 617,
The Steamiship Aleppo, 7 Ben. 127, Fed. Cas. 158, The Mary J. Vaughan,
and The Steamboat Telegraph, 2 Ben. 50, Fed. Cas. 9217, all libels to
recover damages for collision; New Jersey S. N. Co. v. Merchants' Bank,
6 How. 435, 12 L. Ed. 504, holding owner liable beyond value of vessel
and freight if damage or neglect were with his fault or privity; Pacific
Insurance Co. v. Conard, 1 Bald, 143, Fed. Cas. 10,647, holding that one
in possession under respondentia bond may recover full value in trespass,
but cannot recover counsel fees or expenses of suit; The Divina Pastora,
4 Wheat. 69, 4 L. Ed. 516, where cases on jurisdiction in prize and
admiralty matters are collated; Moodie v. Harriet, Bee, 131, Fed. Cas.
9744, as to amount of salvage allowed upon the recapture of ransomed
ship; City of Cincinnati v. Evans, 5 Ohio St. 604, an action of trespass for
an injury to a building occupied by the plaintiff resulting in an inter-
raption to his business ; Mendell v. Martin White, 17 Fed. Cas, 3, affirming
admiralty jurisdiction in suit in rem for personal injuries in collision on
iia\'igable waters.
3 Dall. 336-341 NOTES ON Ui S. REPORTS. 38
IzregnUrity in attachment is waived where the parties ai^ee that proceeds
shall ahide the issue of litigation.
Distinguish^ in Manro v. Almeida, 10 Wheat. 487, 6 L. Ed. 372, holding
that United States courts proceeding as courts of admiralty may issue
attachments to compel appearance.
Miscellaneous. Cited in The Newaygo, 205 Fed. 181, rate of interest
on admiralty claims is legal state rate and not necessarily six per cent.
3 DaU. 336-338, 1 L. Ed. 626, JENNINGS T. THE BBIG PEBSEVEEAKOE.
Affirmance of admiralty decree in absence of statement of facts.
Cited in Wiscart v. D'Auchy, 3 Dall. 330, 1 L. Ed. 623, holding that
statement of facts is conclusive even if evidence be sent up with it;
United States v. Sawyer, 1 Gall. 102, Fed. Cas. 16,227, upon writs of error
in causes of equity or admiralty jurisdiction, court cannot examine any
new evidence; United States v. Wonson, 1 Gall. 8, Fed. Cas. 16,750,
holding that where cause has been •once tried by a jury in District Court,
there cannot, even supposing an appeal lay, be a new trial by jury in
Circuit Court; United States v. Hooe, 1 Cr. 320, 2 L. Ed. 122, holding
that in appeals and writs of error from courts of United States in District
of Columbia, statement of facts must accompany transcript; United States
v. King, 7 How. 865, 12 L. Ed. 948, holding -that writ of error brings
up only questions of law, and questions of fact remain unexaminable ;
Insurance Co. v. Folsom, 18 Wall. 249, 21 L. Ed. 833, holding that where a
case is tried by a circuit judge under the law of March 3, 1865, if finding
be general one. Supreme Court will only review questions of law; Dower
v. Richards, 151 U. S. 664, 88 L. Ed. 307, 14 Sup. a. 454, holding that
Supreme Court cannot, upon error to State court in an action at law, review
its judgment upon question of fact.
Damages for delay appeals.
Cited in Cotton v. Wallace, 3 Dall. 304, 1 L. Ed. 613, holding that where
a judgment or decree is affirmed there can be no damages awarded except
for delay; Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 421, 65 Am. Dec. 605,
to the point that earlier decisions deny profits as any part of damages
to he compensated.
Costs of printed statement of case for use of Judges cannot be allowed.
Cited in Price v. Garland, 4 N. M. 366 (Johnson's ed.), s. c., 6 N. M.
101, 20 Pac. 183, holding that although record is required to be printed,
expense of printing it and appellant's brief and the stenographer's fee are
not proper items of costs.
8 DaU. 339-341, 1 L. Ed. 627, HUGEB ▼. SOUTH OABOUKA.
Where service of subpoena Is proved in action against State, complainant
is entitled to proceed ez parte.
Cited in New Jersey v. New York, 6 Pet. 290, 8 L. Ed. 129, following
rule.
39 NOTES ON U. S. REPORTS. 3 Ball. 342-^64
3 OalL M2-843, 1 1.. Ed. 628, OUESBKE T. HABWOOD.
Costa on reversaL
Cited in Tugman v. Nat. S. S. Co., 24 Blatchf. 309, 8. c, 30 Fed. 804,
where there was an application to stay proceedings until certain costs were
paid; cited as reversing the judgment of the Court of Appeals of Mary-
land in Court v. Vanhibber, 3 Har. & McH. 147.
Liability for costs of trial court after reversal of judgment by appel-
late court. Note, 4 Ann. Gas. 79.
3 DalL 344-366^ 1 K Ed. 629, BBOWN ▼. VAN BBAAM.
Practical constmctlon by State conrta of laws of tliat State will bo
ad]i0red to. ^
Cited in Thompson v. Phillips, 1 Bald. 284, Fed. Cas. 13,974, holding that
the settled construction of a State law by the highest courts of a State is
considered by the Federal courts as their rule of decision; Williams v.
Bank of Michigan, 7 Wend. 556, where the power of one State to declare
unconstitutional the law of another State was considered; Raymond v.
Danbary etc. R. R. Co., 43 Conn. 599, holding that in the assessment of
damages on default. Circuit Court would follow State court.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removed to, Federal courts.
Note, 40 L. B. A. (N. S.) 388.
Calculation of interest on aiBrmance.
Cited in Raymond v. Danbury etc. R. R. Co., 14 Blatchf. 135, Fed. Cas.
11,593, holding that in an action of tort in a Federal court where defendant
defaults, plaintiff has no constitutional right to have damages assessed by
jury.
Damages recoverable by holder of dishonored foreign bill of exchange.
Note, Ann. Oaf. 1913A, 811, 818.
Necessity of jury to compute damages on default judgment. Note,
20 L. B. A. (N. S.) 28.
Miscellaneous. Miscited to question of marine tort in New Jersey Steam
etc. Co. V. Merchants' Bk., 6 How. 432, 12 L. Ed. 60S.
3 DalL 357-^364, 1 L. Ed. 634, FENEMOBE ▼. UNITED STATEa
Recovery for fraud on government.
Approved in Gonsouland v. Rosoraano, 176 Fed. 487, 100 C. C. A. 97,
holding petition stated cause of action for damages for deceit; Price v.
Mutual Reserve life Ins. Co., 107 Md. 382, 68 Atl. 690, holding count for
fraudulent procurement of money by insurer from insured on life policy
cofold not be joined with counts of assumpsit and breach of contract:
State V. Howard, 83 Vt. 17, 74 Atl. 396, holding State could recover money
paid when auditor's approval to improper claim was procured by fraud;.
3 DaU. 365-369 NOTES ON U. S. REPORTS. 40
Moore v. Mandelbaom, 8 Mich. 449, where money was received by the
^atidulent procurement of deed; Byles v. Rowe, 64 Mioh. 631, 31 N. W.
467, where complaint was filed to set aside attachment and execution levies
upon real estate. and for injunction to prevent due sale; State v. Phoenix
Bank, 33 N.* Y. 27, holding that award by board of State auditors obtained
on an ex parte hearing upon fictitious and groundless claim may be
impeached.
The right to waive tort and sue on assumpsit. Note, 1S4 Am. St. Rep.
194.
3 DaU. 366-369, lli. Ed. 638, BROWN v. BABBY.
Bepealing act and Suspending act passed at same session take effect at
tbe same time.
Approved in Pepin Township v. Sage, 129 Fed. 662, 64 C. C. A. 160.
applying rule under Minnesota act of 1894 to act repealing special act
creating village; Blackwell v. Bank of Albuquerque, 10 N. M. 566, 63
Pac. 47, construing delinquent tax act; Pennsylvania R. Co. v. Phila-
delphia County, 220 Pa. 119, 15 L. R. A. (N. S.) 108, 68 Atl. 685, con-
struing together railway incorporating act, and supplement enacted on
same day; Proudfit v. Murray, 1 Call (Va.), 403, holding that the act of
Virginia of 1748, relative to bills of exchange, did not cease until November,
1793, notwithstanding the act of 1792, upon the subject ; Heinssen v. State,
14 Colo. 235, 23 Pac. 997, holding that when the suspension of a general
law within a city results from a city ordinance, repeal of ordinance leaves
general law in force; Adam v. Wright, 84 Qa. 724, 11 S. E. 895, where
an act relating to the payment of certain insolvent criminal costs was
repealed by an act which was itself repealed before it became operative;
Missouri etc. Ry. Co. v. Shannon, 100 Tex. 397, 10 L. R. A. (N. S.) 681,
100 S. W. 146, arguendo.
Construction together of contemporaneous statutes in pari materia.
Note, 18 Ann. Gas. 424.
Acts in derogation of common law are strictly construed.
Approved in Whitfield v. Aetna Life Ins. Co., 144 Fed. 360, under Rev.
Stats. 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; Chauncey v. Dyke Bros., 119 Fed. 17, construing acts Ark. 1895,
p. 217, § 3, relative to priority of mechanics' liens ; Johnson v. Southern
Pac. Co., 117 Fed. 466, construing act of March 2, 1893, relative to use of
automatic couplers; Watts v. Dull, 184 111. 90, 56 N. E. 305, construinj^
Illinois adoption act;'Stames v. Hill, 112 N. C. 20, 16 S. E. 1017, where
question was whether rule in Shelley's Case had been abrogated; Furgeson
V. Jones, 17 Or. 217, 11 Am. St. Rep. 818, 20 Pac. 849, where statute
relating to adoption was construed; Liogan v. Logan, 77 Ind. 562, where
an act authorizing married woman to sue in her own name was considered ;
41 BROWN V. BARRY. 3 Dall. 365-369
dissenting opinion in, Sires v. Melvin, 135 Iowa, 480, 481, 113 N. W. 113,
114, majority upholding statute relating to adoption.
Intention of legldatnre when discoTered mnit prevail in construction of
itfttntes.
Approved in In re Lands of Five Civilized Tribes, 199 Fed. 824, con-
struing allotment of Indian lands; Je&ceys v. Huston, 23 Ida. 379, 129
Pae. 1068, construing appropriation bills relating to same subject; Lane
V. Commissioners of Missoula Co., 6 Mont. 475, 13 Pac. 137, construing
act regulating sheriffs' fees for boarding prisoners; Beckman v. Hudson
River W. S. Ry. Co., 35 Fed. 9, where acts creating the District Courts in
New York were under consideration; Henry v. Trustees, 48 Ohio St. 676,
30 N. E. 1124, construing an act authorizing tq^mi trustees to acquire lands
for cemetery ; Quebec BiVnk v. Carroll, 1 8. D. 4, 44 N. W. 724, construing
statute relating to appeals.
Ptoof of piotest for nonacceptance of foreign bill of exchange is not necea-
nry in action for nonpayment.
Cited in Bead v. Adams, 6 8eig. & R. 357, 358, 359, following rule;
Clarke v. Russell, 3 Dall. 424, 1 L. Ed. 664, an action on bill of exchange ;
Hodgson V. Turner, 1 Cr. C. C. 75, Fed. Cas. 6570, where instruction to
effect that such notice must be proved was refused ; Bradshaw v. Hubbard,
1 Gilm. 395, holding that in suit by indorsees against ' their immediate
indorsers for nonpayment, proof of nonpayment and notice are sufficient
to sustain the action.
Explained in United States v. Barker, 4 Wash. 469, Fed. Cas. 14,520,
where it was held that notice of nonacceptanee of a bill of exchange must
be given without awaiting maturity of the bill ; Duncan v. Course, 1 Mill.
(S. C.) 103, holding that if foreign bill be not protested for nonaccept-
anee, though notice be given of its being dishonored, holder discharges
indorser.
Criticised in CuUum v. Casey, 9 Port. 134, 88 Am. Dec. 304, holding
that protest is only competent evidence of the nonacceptanee of a foreign
bill; Thompson v. Cumming, 2 Leigh (Va.), 324, 327, holding that in an
action against indorser of a foreign bill it is necessaiy to prove due notice
to him of dishonor of bill by nonacceptanee.
Protest as evidence. Note, 96 Am. Dec. 604.
In an action on foreign bill of excliange, failure to allege valne of money
if cured ty verdict.
Cited in Howe v. Nickerson, 14 Allen, 406, in an action by a seaman
under a contract executed in a; foreign country, value of the foreign
money must be ascertained in American money in rendering judgment;
in the note to Gay v. Joplin, 4 McCrary, 464, 13 Fed. 654, the omission
to aver value of foreign money in an action on a* bill of exchange is cured
by verdict.
3 Dall. 369-370 NOTES ON U. S. REPORTS. 42
3 DaU. 368-370, 1 I.. Ed. 6i0, EMOBY V. GBEENOUGH.
Debt is not diacliarged by dlscliarge In bankruptcy in another State.
Approved in Pugh v. Bussell, 2 Blackf . 397, 400, holding that discharge ,
in bankruptcy has no extraterritorial effect; Cook v. Moffatt, 5 How. 316,
.12 L. Ed. 169, holding that contract made in New York is not affected by
a discharge in Maryland; Smith v. Smith, 2 Johns. 241, 242, S Am. Dec.
413, 414, applying principle in case of a debtor residing in Rhode Island
giving his note dated in Massachusetts, the suit being brought in New
York; Mitchell v. McMillan, 3 Mart. (0. S.) 684, 6 Am. Dec. 694, holding
that proceedings in bankruptcy in a foreign country cannot affect the
rights of citizens under contracts made here; Towne v. Smith, 1 Wood.
& M. 127, 133, Fed. Gas. 14,115, holding that if party be discharged in
any State where insolvent system exists, discharge is good elsewhere, but
if contract is made or to be performed abroad such discharge is not bar;
Le Roy v. Crowinshield, 2 Mason, 162, Fed. Gas. 8269, discharge under
bankruptcy laws of place of contract is good discharge in every other
place; Blanchard v. Russel, 13 Mass. 9, 7 Am. Dec. 112, and Walsh v.
Nourse, 5 Binn. 385, both discussing effect 6f discharges in bankruptcy;
Fanning r. Consequa, 17 Johns. 519, 8 Am. Dec. /444, holding that con-
tract is to be interpreted according to law of the place where executed.
Jurisdiction dependent upon diverse citisenship must affirmatively appear
in/ procesB.
Approved in Hill v. Walker, 167 Fed. 246, 92 G. C. A. 633, holding com-
plaint prima facie showed court had jurisdiction ; Gamp v. Wood, 10 Watts,
122, holding that it is essential to judgment of a Justice's Gourt for sum
exceeding one hundred dollars that it should appear that parties appeared
in person and confessed judgment; Morrison v. Bennet, 1 McLean, 330,
Fed. Gas. 9843, where declaration averred that plaintiff was citizen of New
York, one defendant a citizen of Ohio, and the writ, which had also issued
against another, was returned non est, etc., no averment being made of his
citizenship.
Translation from Hnbenu upon subject of law govem^g contracts was
read in argument.
This translation has been referred to in the following authorities: Han-
rick V. Andrews, 9 Port. 27; Ford's Curator v. Ford, 2 Mart. (N. S.) 577,
14 Am. Dec. 203; Depau v. Humphreys, 8 Mart. (N. S.) 8; Miles v.
Oden, 8 Mart. (N. S.) 223, 19 Am. Dec. 182; Broh v. Jenkins, 9 Mart.
(O. S.) 552, 18 Am. Dec. 321; Morris v. Eves, 11 Mart. (0. S.) 732; Winny
V. Whitesides, 1 Mo. 475; Edmondson v. Ferguson, 11 Mo. 345; Thurston
V. Rosenfeld, 42 Mo. 479, 97 Am. Dec. 352; Varnum v. Gamp, 13 N. J. L.
335, 25 Am. Dec. 484, 485; Whitford v. Panama R. R. Co., 23 N. Y. 471;
Guillander v. Howell, 35 N. Y. 658; Caldwell v. Maxwell, 2 Overt. 106,
108; Fitch v. Remer, 1 Flipp. 17, Fed. Gas. 4836.
•.
43 NOTES ON U. S. REPORTS. 3 Dall. 371-382
3 JHSL 371-377, 1 L. EcL 642, HAMTLTOir ▼. MOOBE.
Writ of error tested of term preceding that to which it is made retumahle.
Cited in Janes v. May, Hempst. 289, Fed. Gas. 7206c, where writ was non-
prossed, because of term intervening between issuing of writ and filing
record and writ ; Grigsby v. Purcell, 99 U. S. 506, 507, 25 L. Ed. 854, where
court said that an attempt seemed to have been made in Wood v. Lide,
4 Or. 180, 2 L. Ed. 588, to adopt a less stringent rule, but that uniform
current of decisions since was all other way ; State v. Kennedy, 18 N. J. L.
26, holding that service of a writ of certiorari after its return day is void
and error cannot be cured by rule of court.
3 DalL 878-382, 1 I.. Ed. 644, HOLUNOSWO&TH ▼. VIBGINIA.
President need not approve an amendment to Constitution.
Approved in Warfield v. Vandiver, 101 Md, 117, 60 Atl. 642, constitu-
tional amendment need not be presented to Oovernor before submission
to people; Ricdardson v. Young, 122 Tenn. 533, 125 S. W. 678, Governor not
required to approve of joint resolution ; State ex rel. v. Secretary of State,
43 La. Ann. 655, 9 South. 798, holding that it settled that such propositions
did not require executive approval; In re Senate File 31, 25 Neb. 873, 41
K. W. 983, where validity of a proposed amendment was under discussion ;
State v. Dahl, 6 N. D. 83, 68 N. W. 419, holding legislative resolution
respecting constitutional convention need not be signed by Governor.
Necessity of approval by executive of proposed constitutional amend-
ment. Note, 4 Ann. Cas. 703.
Effect of eleventh amendment.
Approved in Alabama etc. School v. Addler, 144 Ala. 557, 42 South. 117,
judgment against Alabama Girls' Industrial Sehool is void for want of
jurisdiction, as judgment against State; Commonwealth v. Griest, 196
Pa. St. 412, 46 Atl. 509, holding Governor's approval not necessary to sub-
mission of constitutional amendment ; Crisholm v. State of Georgia, 2 Dall.
480, 1 Ii» Ed. 466, where judgment had been rendered and a writ of inquiry
awarded, but writ having never been executed, this cause with others was
swept from record; Hans v. Louisiana, 134 U. S. 11, 33 L. Ed. 846, 10
Sup. Ct. 506, eleventh amendment superseded all suits pending and pre-
vented institution of new suits; McElvain v. Mudd, 44 Ala. 74, 76, where
question was as to effect of emancipation declaration upon note given for
slaves; Buckner v. Street, 7 Ba.ik. Reg. 267, s. c, 1 Dill. 259, Fed. Cas.
2098, holding that right of action on slave contract does not survive thir-
teenth amendment; Ex parte Poulson, 19 Fed. Cas. 1207, act of 1831, de-
prived Federal court of power to punish for contempt one publishing
article prejudicing rights of party to suit; Johnson v. Tompkins, 1 Bald.
598, 13 Fed. Cas. 852, Fed. Cas. 7416, an amendment may control the pro-
visions of the Constitution authorizing power to be exercised by declara-
tion tbat it shall not give such power; Bains v. Schooner James, 1 Bald.
561, 2 Fed. Cas. 419, Fed. Cas. 756, holding that seventh amendment to
Constitution excludes jurisdiction of admiralty over eontracts regulated
3 Dall. 382-384 NOTES ON U. S. REPORTS. 44
by common law; dissenting opinion in Livingston v. Story, 11 Pet. 397,
9 L. Ed. 764, where phrase "nothing in this act shall be so construed" was
interpreted; Ex parte Alabama, 52 Ala. 236, 23 Am. Rep. 572, and Bay
City etc. R. R. Co. v. Austin, 21 Mich. 414, both holding that repeal of
statute defeats right to recovery ; Roberts v. The State, 2 Overt. 425, holding
that repeal of penal statute without saving clause pardons all offenses
committed befoi'e; Rhode Island v. Massachusetts, 12 Pet. 731, 9 L. Ed.
1263, where the court said eleventh amendment left exercise of jurisdiction
over controversies between States as free as it had been before; United
States V. Lee, 106 U. S. 242, 27 L. Ed. 189, 1 Sup. Ct. 279, where doctrine
that, except where Congress has provided, the United States cannot be
sued, was affirmed ; Governor of Georgia v. Madrazo, 1 Pet. 122, 7 L. Ed.
79, and State ex rel. v. Doyle, 40 Wis. 202, 205, both holding that where
an officer is sued in his official capacity to affect the right of the State,
the State is real defendant; Dudley's Case, 7 Fed. Cas. 1151, construing
proviso of bankrupt law; dissenting opinion in South Dakota v. North
Carolina, 192 U. S. 331, 24 Sup. Ct. 281, majority upholding Supreme
Court's jurisdiction over action by one State against another to enforce
payment of bonds of such other State which are specifically secured bj'^
shares of stock belonging to debtor State by ordering foreclosure of
security.
Distinguished in Central of Georgia Ry. Co. v. Railroad Comsn., 161 Fed.
975, holding rule did not apply to suit to enjoin officers of State from
enforcing void statute; Buckingham v. Granville Alexandria Soc, 2 Ohio,
367, where question was as to effect of change in or repeal of law relating
to judgments and executions.
3 J>all. 382-384, 1 K Ed. 646, BINQHAM ▼. CABOT.
To glYB Circuit Court Jurisdiction, it is necessary to set fortb citlBensliip
of parties. .
Approved in Butterfield v. Miller, 195 Fed. 204, 115 C. C. A. 152, holding
bill for attachment showed diversity of citizenship to give jurisdiction;
Stephens V. Smartt, 172 Fed. 475, holding complaint failed to show di-
versity of citizenship to give jurisdiction; Hill v. Walker, 167 Fed. 246, 92
C. C. A. 633, holding complaint prima facie showed court had jurisdiction ;
Philadelphia etc. R. R. Co. v. Quigley, 21 How. 216, 16 L. Ed. 78, failure
to make averment is fatal to jurisdiction; Wood v. Wagnon, 2 Cr. 9,
2 L. Ed. 191, where judgment was reversed because it did not appear par-
ties were residents of different States; Dred Scott v. Sandford, 19 How.
402, 473, 15 L. Ed. 699, 728, Brown v. Keene, 8 Pet. 115, 116, 8 L. Ed. 886,
and Ingraham v. Arnold, 1 J. J. Marsh. 407, all to point that case must
plainly and by positive averments upon record be brought within juris-
diction; Childress v. McG«hee, Minor, 133, in courts of limited jurisdiction,
facts or circumstances which give jurisdiction must appear on record;
Turner v. Enrille, 4 Dall. 8, 1 L. Ed. 718, holding that if jurisdiction de-
pends upon fact that parties are residents of different States, it must so
appear; Brown v. Noyes, 2 Wood. & M. 80, Fed. Cas. 2023, where plaintiff
was described as citizen of Rhode Island and defendants as citizens of
\
45 BINGHAM v. CABOT. 3 DaU. 382-384
Massaehnsetts ; Abercrombie y. Dupuis, 1 Cr. 343, 2 L. Ed. 130, holding a
description of the defendant as "Charles Abercrombie of the district of
Georgia, Esquire," was not suffioient; Berlin v. Jones, 1 Woods, 639, Fed.
Cas. 1343, construing averment that party defendant was citizen of south-
em district of 'Alabama; Grace v. American Cent. Ins. Co., 109! U. S. 284,
285, 27 L. Ed. 935, 3 Sup. Ct. 211, averment that parties reside, or t'hat
firm does business in particular State not sufficient; Stuart v. JSaston, 156
U. S. 47, 89 L. Ed. 341, 15 Sup. Ct. 268, averment that plaintiff is a "citizen
of London, England," not sufficient; Course v. Stead, 4 Dall. 26, 1 L. Ed.
726, where there was a supplemental bill by a new party not described;
Bors V. Preston, 111 U. S. 263, 28 L. Ed. 422, 4 Sup. Ot. 412, holding that
alienage is not to be presumed from fact that one is foreign consul; Bank
of United States v. Moss, 6 How. 37, 12 L. Ed. 334, holding court would
presume evidence of jurisdiction to have been given ; dissenting opinion in
McNutt V. Bland, 2 How. 20, 24, 11 L. Ed. 168, 165, where Governor and
party sued were citizens of same State, but not party for whose use suit
was brought : Heyer v. Burger, 1 Hoff. Ch. 17, holding defect may be taken
advantage of upon appeal; Speigle v. Meredith, 4 Bliss. 126, Fed. Cas.
13,227, holding that if bill fails to show jurisdiction it will be bad on de-
murrer and any decree would be liable to reversal; Donaldson v. Hazen,
Hemp. 424, Fed. Cas. 3984, holding omission may be taken advantage of
by motion to dismiss, by motion in arrest, or by writ of error ; Morrison v.
Bennet, 1 McLean, 330, Fed. Cas. 9843, on the same point ; Burrow v. Dick-
son, 4 Fed. Cas. 840, holding jurisdiction appearing on any part otf the
record sufficient after judgment; Florence Sewing Machine Co. v. Grover
etc. Co., 110 Mass. 81, where there was a petition to remove cause because
of diverse citizenship; Beebe v. Armstrong, 11 Mart. (0. S.) 441, and Mer-
chants' Nat. Bank v. Brown, 4 Woods, 264, s. c, 17 Fed. 161, both holding
that a petition for removal of cause must aver that parties are citizens of
different States ; dissenting opinion in Beerbower v. Miller, 30 Neb. 181, 47
N. W. 2, holding that right of nonresident to remove a cause is limited by
the amount in dispute; cited generally as to removal of causes in Jim
(a slave) v. The State, 3 Mo. 168 ; Marshall v. Baltimore etc. R. R. Co., 16
How. 340, 14 L. Ed. 964, holding that a citizen of Virginia may sue a rail-
road corporation in the Circuit Court; North River S. N. Co. v. Hoffman, 5
Johns. Ch. 303, holding that where corporation is plaintiff, it must appear
that all persons jointly interested are entitled to sue in United States
courts ; Bank of Cumberland v. Willis, 3 Sumn. 473, Fed. Cas. 885, holding
that to entitle corporation to sue in Circuit Courts, all members must be
citizens of some State other than that of defendant; Shaw v. Quinoy M.
Co., 146 U. S. 447, 36 L. Ed. 770, 12 Sup. Ct. 936, holding corporation incor-
porated in one State only, and having usual place of business in another
State, cannot be sued in a Circuit Court held in latter place, by citizen of
different State; Ducat v. City of Chicago, 48 111. 176, 95 Am. Dec. 531, where
question was as to whether corporation was a citizen; Allen v. Blunt, 1
Blatchf . 485, Fed. Cas. 215, holding that in actions under patent laws, juris-
diction of Circuit Court does not depend upon citizenship but upon subject
matter; Homthall v. The Collector, 9 Wall. 565, 19 L. Ed. 562, holding that
3 DaU, 384^01 NOTES ON U. S. REPORTS. 46
jurisdiction between citizens of same State in internal revenue eases had
been taken away from Federal courts ; Camp v. Wood, 10 Watts, 122, where
principle that jurisdiction must appear was applied to justice's judgment;
Duryee v. Webb, 8 Fed. Cas. 139, arguendo.
Distinguished in Oakey v. Commercial & R. R. Bank, 14 La. 517, 518,
holding that in petition to remove cause, court cannot inquire into truth of
allegations jn petition; Prentiss v. Barton, 1 Brock. 392, Fed. Cas. 11,384,
where question was as to what constituted citizenship in another State.
Miscellaneous. Cited in Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31
Pac. 990, consent cannot give jurisdiction; miscited in Magill v. Brown, 16
Fed. Cas. 419.
3 DaU. 384-385, 1 L. Ed. 647, JONES ▼. US TOMBE.
Personal liability of public ol&cer on contract.
Approved in Armour v. Roberts, 151 Fed. 852, holding collector of in-
ternal revenue hot personally liable for inheritance tax wrongfully col-
lected; Doming v. Bullitt, 1 Blackf. 242, where it was said that term
''agent" is merely descriptive of obligor; Passmore v. Mott, 2 Binn. 202,
holding that secretary of an incorporated company who as such signs lottery
ticket is not personally responsible to holder; Aven v. Beckom, 11 Ga. 6,
where an administrator selling slave was held personally liable on warranty ;
Balcombe v. "Northup, 9 Minn. 177, holding that where public officer makes
contract fairly within scope of his authority presumption is he made it
officially; Yulee v. Canova, 11 Fla. 47, where question was as to liability of
an impressing officer during Civil War; Seidle v. Peschkaw, 27 N. J. L. 430,
holding that an agent who is authorized to accept for his principal and ap-
propriates the avails of the acceptances is liable on an implied contract;
Brown v. Rundlett, 15 N. H. 364, wh^re at attempt was made to charge a
highway surveyor personally with the price of certain gravel; Underbill v.
Gibson, 2 N. H. 356, 9 Am. Dec. 86, where agent of public corporation mak-
ing promise in writing without authority, was held personally liable.
Distinguished in Comparet v. Burr, 5 Blackf. 420, holding that trover
would lie for drafts drawn upon fund commissioners.
Officer's liability on contracts made for public. Note, 15 L. B. A. 512.
Liability of one signing contract in representative capacity. Note, 42
L. R. A. (N. S.) 28.
Exemption and privileges of consuls. Note, 45 L. B. A. 681.
3 BaU. 38&-401, 1 L. Ed. 648, CAIJ>E& ▼. BXJLL.
Ex post facto laws within the prohibition of the national Oonstitntion do
not include retroq^ectiye laws civU in their nature, but criminal laws only,
as follows: (1) Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal; and ponishes such action.
(2) Every law that aggrayates a crime or makes it greater than it was when
committed, (3) Every law that changes the punishment and inlUcts a greater
47 CALDEE v. BULL. 3 Dall. 386-401
■
panidiment tlum the lav azmes^ed to the crime when committed. (4) Every
law that alters the legal rules of evidence, and receires less or different testi-
mony than the law required at the time of the commission of the offense, in
order to convict the offender. Laws which mitigate the punishment are not
within the prohibition.
In addition to the definition of ex post facto laws given by Justice Chase,
the following are among the most important attempts at a definition of the
term : Blackstone thus characterizes it : "When, after an action' (indiiferent
in itself) is committed, the legislature for the first time declares it to have
been a crime, and inflicts a punishment upon the person who has committed
it." It is thus referred to in the Federalist, No. 84, "The creation of crimes
after the commission of the act, or in other words, the subjecting of m%n
to punishment for things which when they were done were breaches of no
law, and the practice of arbitrary imprisonments, have been in all ages the
favorite and most formidable instruments of tyranny." Chief Justice
Marshall's definition of an ex post facto law, which has frequently been
favorably commented on, is, any law "which renders an act punishable in a
manner in which it was not punishable when it was committed." Fletcher
V. Peek, 6 Cr. 138, 8 L. Ed. 178. "An ex post facto law," says Justice
Washington, "is one which, in its operation, makes that criminal which was
not so at the time the action was performed ; or which increases the punish-
ment, or, in short, which, in relation to the offense or its consequences,
alters the situation of a party to his disadvantage." United States v. Hall,
2 Wash. C. C. 366, Fed. Cas. 15,286. Sir Thomas Tomlin, in his law dic-
tionary, thus defines the term: "Ex post facto is a term used in the law,
siiniifying something done after, or arising from, or to affect another thing
that was committed before." And again, "An ex post facto law is one
which operates upon a subject not liable to it at the' time the law was
made." See further definitions collected in Moore v. State, 43 N. J. L. 214,
215, 225, 231, 39 Am. Rep. 568, 569, 570; Kring v. Missouri, 107 U. S.
227, 232, 238, 27 L. Ed. 508, 510, 512, 2 Sup. Ct. 449, 452, 457; Anderson v.
Baker, 23 Md. 566, 581, 605.
The late citations of the ]|^rincipal case approve and apply the syllabus
proposition as 'follows: State v. Malloy, 95 S. C. 446, Ann. Oas. 19150, 1053,
78 S. E. 997, affirmed in Malloy v. South Carolina, 237 U. S. 183, 59 L. Ed.
907, 35 Sup. Ct. 507, upholding State law substituting electrocution for
hanging as to crimes previously committed; United States v. Spohrer, 175
Fed. 446, United States v. Mansour, 170 Fed. 675, and Johannessen v.
United States, 225 U. S. 242, 56 L. Ed. 1072, 32 Sup. Ct. 613, all upholding
Federal statute authorizing impeachment of naturalization certificates;
Kentucky Union Co. v. Kentucky, 219 U. S. 153, 66 L. Ed. 154, 31 Sup. Ct.
171, upholding statute forfeiting land titles for failure to list and pay
taxes; Rooney v. North Dakota, 196 U. S. 325, 49 L. Ed. 497, 25 Sup. Ct.
264, North Dakota act of 1903, changing place of confinement to peniten-
tiary before execution of death penalty, is not ex post facto as applied to
conviction before its passage; Orr v. Gilman, 183 U. S. 286, 46 L. Ed. 201,
22 Sup. Ct. 216, upholding section 5 of New York tax law of April 16, 1897 ;
Mallett V. North Carolina, 181 U. S. 593, 46 L. Ed. 1018, 21 Suiy Ct. 732,
/ ^/
3 Dall. 386-401 NOTES ON U. S. REPORTS. 4S
appellate laws held not ex post facto ; De Pass v. Bidwell, 124 Fed. 623, up-
holding Foraker act imposing duties on importation from Porto Ricfe;
Dodge v. Mission Township, 107 Fed. 828, 54 L. R. A. 24fi, denying validity
' of township bonds for promotion of sugar factories; Diamond State Iron
Co. V. Husbands, 8 Del. Ch. 226, 68 Atl. 246, upholding law relieving corpo-
ration from consequences of failure to record its charter in time ; Frisby v.
United States, 38 App. D. C. 24, 25, 29, 37 L. R. A. (N. S.) 96, defendant
could not be punished for forging of instrument attached to answer in
equity where law, subsequently repealed, provided that pleading could be
used only as evidence of perjury ; Goode v. State, 50 Fla. 47, 39 South. 462,
statute changing rules as to sufficiency! of evidence in prosecutions for vio-
lations of liquor laws ex post facto as to offense committed phor to law;
Pittsburgh etc. R. Co. v. Lightheiser, 168 Ind. 446, 78 N. E. 1036, prohibi-
tion of ex post facto laws does not apply to Employers' Liability Act ; Ware
v. Sanders, 146 Iowa, 247, 124 N. W. 1086, construing statute providing for
indeterminate sentences as inapplicable to offenses committed prior to its
- passage; Shepherd v. Grimmett, 3 Idaho, 409, 31 Pac. 795, upholding elec-
tor's test oath ; State v. Tyree, 70 Kan. 205, 78. Pac. 525, where one con-
victed prior to indeterminate sentence law of 1903, but sentenced under the
law, such law ex post facto as to him; Cassard v. Tracy, Cassard v. Zacharie,
52 La. Ann. 845, 27 South. 372, construing constitutional provision giving
appellate court jurisdiction over questions of fact; Cowling v. Zenith Iron
Co., 50 La. Ann. 1249, 69 Am. St Rep. 473, 24 South. 241, construing con-
stitutional provision as to trial without jury; State v. Vannah, 112 Me. 253,
91 Atl. 987, right to have jury selected from another county or district is
not within prohibition of ex post facto laws ; State y. Vannah, 112 Me. 252,
91 Atl. 986, repeal of act requiring indictments for murder to be certified
to Supreme Court is valid as to murder previously committed; Murphy v.
Commonwealth, 172 Mass. 269, 70 Am. St. Rep. 271, 48 L. R. A. 164, 52 N. E.
507, upholding Stats. 1895, p. 504, relative to fixing punishments by the
court ; McGuire v. State, 76 Miss. 513, 514, 26 South. 497, construing act of
April 5, 1872, giving jury in murder prosecutions right to fix punishment;
State V. Mallinckrodt Chemical Works, 249 Mo. 730, 156 S. W. 975, up-
holding statute requiring corporation to file anti-trust affidtCvit; Adams v.
County Commrs. of Norfolk, 166 Mo. 303, 65 S. W. 768, construing Constitu-
tion, article II, section 12, authorizing prosecution by information; State
V. Hoon, 78 Neb. 621, 111 N. W. 463, to support conviction of wife deser-
tion, both "abandonment" and "failure to provide" must have occurred
prior to passage of statute ; Howell v. Hurley, 170 N. C. 405, 87 S. E. 109,
upholding law admitting in evidence abstract of public land grants; State
V. Rooney, 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, 11 L. R. A. 418, 25 Pac. 747, Act
1st Assem. Okl. T., § 1, continuing in force Neb. Cr. Code, is not ex post
facto as to offense already committed; Commonwealth v. Kalck, 239 Pa.
538, 87 Atl. 62, indeterminate sentence law held not ex post facto because
mitigatin^^ penalty.
I
49 CALDER ▼. BULL. 3 DaU. 386-401
Xhtentloii tbat Uw retroact miuit be plain.
The rule is "clearly maintained by writers of the highest authority and
conclusively settled in a variety of decided cases." Lewis v. Bf ackenridge,
1 Blackf . 222, 12 Am. Dec. 280 ; Burke v. Barron, 8 Iowa, 135 ; Wilder v.
Lumpkin, 4 Ga. 214, 215, 218; Boyce v. Holmes, 2 Ala. 66; Couch v. McKce,
6 Ark. 493 ; Larkin v. Saffarans, 15 Fed. 150 ; Rich v. Flanders, 39 N. H.
313, 381, 349, 376, 380, 381, 387; Den ex dem. Berdan v. Van Riper, 16
N. J. L. 10, 14; Commonwealth v. Homer, 153 Mass. 344, 26 N. E. 872; Ex
parte Quarrier, 4 W. Va. 212, 223 ; Dash v. Van Kleeck, 7 Johns. 489, 491,
499, 507, 5 Am. Dec. 298, 299, 306, 812.
Applies to criminal laws only.
Oyer the rule first authoritatively announced in the leading case to the
effect that the phrase ex post facto in the Constitution is to be understood
in its technical sense, and as referring solely to criminal laws, there has
been no controversy. The high authority of the tribunal announcing it, the
soundness of the reasoning by which the conclusion was reached, and the
evident intention of the framers of the Constitution so to limit the appli-
cation of the term have been deemed by subsequent cases conclusive upon
the point. As early as Forsyth v. Marbury (1830), Charlt. (Ga.) 329, the
court, speaking per Law, J., said of the rule of the leading case, that it
"stands unchanged and has never been renounced by the court, and it will,
I presume, control the meaning of these words so long as it does remain."
The Supreme Court of N<HTth Carolina has referred to it as "universally
accepted and approved." State v. Bell, Phill. (N. C.) 76, at p. 81. In the
following ca&es also this distinction drawn by the leading case is referred
to and approved: In re Sawyer, 124 U. S. 219, 31 L. Ed. 408, 8 Sup. Ct. 492;
Locke V. New Orleans, 4 Wall. 174, 18 L. Ed. 335 ; Albee v. May, 2 Paine,
74, 79, Fed. Cas. 134; United States v. Gibert, 2 Sumn. 101, Fed. Cas.
15,204; Holman v. Bank of Norfolk, 12 Ala. 417; Burt v. State, 39 Ala. 650;
Elliott V. Mayfield, 4 Ala. 423; Dale v. Governor, 3 Stew. (Ala.) 418, 420,
421 ; Aldridge ^v. Tuscumbia etc. R. R. Co., 2 Stew. & P. 199, 207, 23 Am.
]>e& 312 ; Bridgeport v. Hubbell, 5 Conn. 240 ; Bridgeport v. Housatonic R.
E. Co., 16 Conn. 496, 497; Randel v. Shoemaker, 1 Harr. (Del.) 577; Aycjock
v. Martin, 37 Ga. 124, 177, 185 ; Boston v. Cummins, 16 Ga. 107, 60 Am.
Dec. 720; Coles v. Madison Co., Breese, 156, 12 Am. Dec. 163; Andrews v.
Russell, 7 Blackf. 476; State v. Squires, 26 Iowa, 346; Henderson etc. R. R.
Co. V. Dick^rson, 17 B. Mon. 177, 66 Am. Dec 149, 150 ; Davis v. Ballard,
1 J. J. Marsh. 577, 579; Le Breton v. Morgan, 4 M^irt. (La.) (N. S.) 142;
Baugher v. Nelson, 9 Gill, 299, 305, 307, 52 Am. Dec. 698, 699; State v.
Hufty, 11 La. Ann. 316, 318; Wilson v. Hardesty, 1 Md. Ch. 68; Scott v.
Smart, 1 Mich. 302, 307; Drehman v. Stifel, 41 Mo. 204, 97 Am. Dec. 273;
State V. Mayor etc., 37 N. J. L. 43; Suydam v. Receivers etc., 3 N. J. Eq.
117; Grim v. Weissenberg School Dist., 57 Pa. St. 435, 98 Am. Dec. 239;
Lane v. Nelson, 79 Pa. St. 410 ; Hess v. Werts, 4 Serg. & R. 364 ; Eakin v.
Raub, 12 Serg. & R. 330, 358 ; Mercer v. Watson, 1 Watts, 366 ; Stoddart v.
Smith, 5 Binn. 364, 364; Commonwealth v. Lewis, 6 Binn. 271; Bjmie v.
Stewart, 3 Des. Eq. 477; De Cordova v. Galveston, 4 Ter. 473, 474, 478;
\
3t Dalf. 386-401 NOTES ON U. S. REPORTS. 60
Bender v. Crawford, 33 Tex. 761, 752,. 7 Am. Rep. 272, 273; Danville v.
Pace, 25 Gratt. 1, 10, 18 Am. Rep. 669 ; Caperton v. Martin, 4 W. Va. 150,
6 Am. Rep. 279 ; State v. Staten, 6 Coldw. 233, 278 ; Carpenter v. Pennsyl-
vania, 17 How. 463, 15 L. Ed. 129; Anderson v. Baker, 23 Md. 566, 581,
605 ; Burch v. Newbury, 10 N. Y. 374, 391, 394 ; Lynn v. State, 84 Md. 67,
78, 35 Atl. 22 ; People v. Hawker, 152 N. Y. 234, 240, 46 N. E. 608 ; Weister
V. Hade, 52 Pa. St. 480 ; Baltimore R. R. v. Nesbit, 10 How. 402, 13^. Ed.
472.
The prohibition to be liberally construed in favor of personal liberty.
The prohibition is "an additional bulwark in favor of the personal secur-
ity of the subject." Calder v. Bull, 3 Ball. 390, 1 L. Ed. 650. And the
authorities show that the tendency has been to a liberal, rather than a nar-
row, construction in favor of individual rights. Compare Cummings v.
Missouri, 4 Wall. 277, 18 L. Ed. 356, Ex parte Garland, 4 Wall. 333, 18
L. Ed. 366, and Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, with State
V. Moore, 42 N. J. L. 208. "The Constitution deals with substance not
shadows," said Justice Field in Cummings v. Missouri. *1ts inhibition was
leveled at the thing not the name. It intended that the rights of the citizen
should be secure against deprivation for past conduct by legislative enact-
ment, under any form, however disguised. If the inhibition can be evaded
by the form of the enactment, its insertion in the fundamental law was a
vain and futile proceeding."
Statutes pnrportlxig to be civil in their nature may be within its meaning.
Accordingly while the distinction is in general between civil and crimi-
nal laws a statute apparently civil in its nature, which yet retroacts on past
offenses and seeks to punish for them by indirection, is equally within the
prohibition. Cummings v. Missouri, 4 Wall. 277 (1), 18 L. Ed. 356; Ex
parte Garland, 4 Wall. 390, 18 L. Ed. 874. This proposition is illustrated
by several cases involving the validity of certain test oath a^\3 passed
at the close of the Civil War in several States and by Congress.
Statute must retroact criminally.
Moreover a statute partaking of the nature both of a criminal and civil
law, but which retroacts only in its civil aspects, is not prohibited. Accord-
ingly a retrospective law taxing the purchases of merchants for the previ-
ous year, and imposing a penalty for failure to furnish the information
necessary to assess the tax, is wholly prospective in its criminal operation ;
State V. Bell, Phill. (N. C.) 81. And a statute prohibiting the sale of
liquor, though applicable to liquor previously manufactured, is not ex post
facto, because retroacting only in the "civil consequence of lessening the
value of certain property owned at the time of its passage." State v. Paul,
5 R. I. 190.
Justice Chase's definition.
The definition propounded by Justice Chase of laws which are within the
prohibition '^has been accepted generally, and, we believe, everywhere in
the United States without exception.'' £x parte Bethurum, 66 Mo. 549.
51 CALDER V. BULL. 3 Dall. 386-401
Justice Miller has said of it. ' ' This exposition of the nature of e:{\post facto
laws has never heen denied, nor has any court or any commentator on the
Constitution added to the classes of laws here set forth as coming within
that elause of the organic law,'' dissenting opinion in Ex parte Garland,
4 Wall. 391, 18 L. Ed. 374. So Byrd, J., in Hart v. State, 40 Ala. 34, 37,
38, 88 Am. Dec. 755, 756, declared it "too long acquiesced in and recognized
by repeated and uniform adjudication to be now disturbed; and . . .
the only question is as to its application to cases as they may arise." The
definition is also adopted in the following cases: Cummings v. Missouri, 4
Wall. 277, 18 L. Ed. 356; In re Angelo de Giacomo, 12 Blatchf. 401, Fed.
Cas. 3747; State v. Hoyt, 47 Conn. 532; Reynolds v. State, 1 Ga. 228;
Strong V. State, 1 Blackf. 197; Walston v. Commonwealth, 16 B. Mon. 37,
39; State v .Johnson, 12 Minn. 484, 485, 93 Am. Dec. 247, 248; State v.
Garesche, 36 Mo. 259; Rich v. Flanders, 39 N. H. 304, 313, 321, 349, 376,
380, 381, 387; Woart v. Winnick, 3 N. H. 473, 475, 476, 14 Am. Dec. 385,
387; State v. Moore, 42 N. J. L. 228; Dickinson v. Dickinson, 13 Murph.
(N. C.) 330, 9 Am. Dec. 609; Green v. Shumway, 39 N. Y. 424, 432; Hartung
V. People, 22 N. Y. 104 ; Holt v. State, 2 Tex. 364 ; Ex parte Hunter, 2 W.
Va. 159, 172; United States v. Hughes, 8 Ben. 30, 32, Fed. Cas. 15,416; State
, V. Thompson, 141 Mo. 417, 42 S. W. 951. Yet it has not proved broad enough
to cover all the adjudicated cases: Moore v. State, 43 N. J. L. 203, 214,
215, 217, 225, 231, 39 Am. Rep. 568, 569, 570 ; Reynolds v. State, 1 Ga. 228 ;
Kring V. Missouri, 107 U. S. 227, 232, 238, 27 L. Ed. 508, 510, 512, 2 Sup.
Ct. 449, 452, 457. The stress of the facts in Kring v. Missouri, 107 U. S.
221, 27 L. Ed. 506, in the opinion of a majority of the Supreme Court of
the United States, necessitated a slightly different statement of the rule
for determining the validity or invalidity of a statute retroacting upon
past conduct, which was embodied in the syllabus of the case, as follows:
** Within' the meaning of the Constitution, any law is ex post facto which
is enacted after tl\e offense was committed, and which, in relation to it^or
its consequences, alters the situation of the accused to his disadvantag^e. "
It is in order to take up group (1), which comprises:
(1) Every law that makes an action done before the passing of the law,
and which was innocent when done, criminal, and punishes snch action.
It had previously been observed with reference to certain English ex
post facto laws that "Sometimes they respected the crime, by declaring
acts to be treason which were not treason when coriimitted" (p. 389), and
the two ideas are manifestly to be construed together. The proposition
thus set forth seems clear and devoid of any perplexities. A Mississippi
case furnishes an illustration of its application. By a law in force in that
State in 1887, the carrying of concealed weapons was prohibited except
where the party had "good and sufficient reasons to apprehend an attack,"
the penalty being fixed at a maximum of one hundred dollars, or two
months' imprisonment. An amendment in 1888 struck out the exceptioi\
and inserted a minimum penalty of twenty-five dollars, or one month. This
was held ex post facto as applied to a previous offense, because, in certain
cases, making criminal an act innocent when done, and in all, inflicting a
3 DaU. 386-401 NOTES ON U. S. REPORTS. 62
possibly greater penalty. Lindzey y. State, 66 Miss. 543, 7 Am. St. Rep.
675, 6 South. 99. Again, it is relied on in one of the test oath cases
already considered. Clergymen were by law, in Missouri, required to take
oath that they had never borne arms against the United States, and that
they had never left the State to avoid enrollment or draft in the army;
and those who could not take the oath were forbidden the exercise of their
calling. ^ The Supreme Court held, per Field, J. (Chase, C. J., Swayne,
Miller and Davis, J J., dissenting), that this latter requirement of the oath
had the effect to make criminal an act inno(^nt when done, since leaving
the State to avoid draft in the military service had not formerly been a
crime. The decision, however, is based mainly on the point that the stat-
ute had the effect to inflict additional punishment, and was, therefore,
within the third portion of the definition of the leading case.
The legislature may not revive criminal prosecutions barred by statute of
limitations or pardon.
Not only are laws prohibited which punish an act as criminal which was
innocent when done, but also laws w(|ich inflict punishment for an act
as to which there was no criminal liability to pjtinishment at the time of
its passage. As, to extend the time allowed for prosecuting a criminal
offense by a retrospective statute seeking to revive the right to prosecute
a former offense, which had lapsed under the old law. Moore v. State, 43
N. J. L. 203, 39 Am. Rep. 558, reversing State v. Moore, 42 N. J. L. 208;
State V. Sneed, 25 Tex. Supp. 66, where it was held that the provisions of
the new code extending the time in which a criminal offense might be prose-
cuted did not operate retrospectively to revive any right of action, because
if so applied it would be ex post facto; State v. Keith, 63 N. C. 140, where
the question was whether the State constitutional convention could revive
the right to prosecute for a felony which had been pardoned by a con-
gressional act of amnesty. In declaring the provision void because ex post
facto, the court said: "The ordinance in question was substantially an
ex post facto law ; it made criminal what, before thp ratification of the ordi-
nance, was not so; and it took away from the prisoner his vested right to
immunity." There is also some ground for saying that jurisdiction can-
not subsequently be conferred to try a previous crime which was not in-
dictable in any court when committed; United States v. Starr, Hempst. 471,
Fed. Cas. 16,379; though the decision was put upon the ground that the
statute in question was not intended to retroact at all. See, also, Falconer
V. Campbell, 2 McLean C. C. 195, Fed. Cas. 4620.
But if the immunity from prosecution arises, not by operation of law
in the jurisdiction where the crime was committed, but by intervention
of the laws and protection of another jurisdiction, a law depriving the
offender of the protection thus conferred is not within the rule of Moore
V. State. Thus an extradition treaty whereby a person is surrendered by
the United States for a murder committed in a foreign country previous to
the ratification of such treaty is not ex post facto in a sense to protect
such offender from the operation of the treaty ; assuming that a treaty is
a law ahd subject to the constitutional limitations imposed upon legislative
acts. In re Angelo de Giacoma, 12 Blatchf . 401, Fed. Cas. 3747.
63 CALDEB v. BULL. 3 Ball. 386-401
(2) Srery law tliat aggravates a crime, or makes It greater tlian it was
whflD committed.
None of the cases oitiz^ Calder ▼. Bull come under this head ezcltisively.
Apparently the reference is to such statutes as make a certain fact a
greater offense in the eyes of the law than previously; as, for instance, a
statute declaring that a breaking in in the daytime be burglary not in the
second but in the first degree. In general, the repugnance of such a law,
if retrospective, is apparent on other grounds ; since practically, and almost
necessarily, an aggravation of the punishment is the invariable concomi-
tant of an aggravation of the crime, thus bringing the statute under the
third prohibited group of laws. But if the class is intended to include
laws not within the third group — a law, for instance, aggravating a crime
without changing its form of trial, or aggravating its punishment in any
way, affecting the accused only in giving his offense a more opprobrious
title, it would not seem to be altogether sound, especially in view of the
rule laid down subsequently in the Kring,case. In many of the cases
groups (2) and (3) are classed together. State v. Moore, 42 N. J^ L. 228.
(3) Every law that changes the punishment, and inflicts a greater punish-
ment, than the law annexed to the crime, when committed — ^punishment, what is.
What constitutes a punishment within the interdict of the constitutional
provision is a question concerning which there has been upon occasion con-
siderable difference of opinion. In general it has been defined as the
penalty imposed for a transgression of the law. Dissenting opinion in
Ex parte Garland, 4 Wall. 393, 18 L. Ed. 874. But mere matters of prison
discipline or penal administration, although they may impose more onerous
conditions upon those under sentence, are not within the meaning of the
term. Hartimg v. People, 22 N. Y. 95, 105. Denio, J., who delivered the
opinion in that cas^ says : "Any change which would be referable to prison
discipline or penal administration, as its primary object, might also be
made to take effect upon past as well as future offenses, as changes in the
manner or kind of employment of convicts sentenced to hard labor, the
system of supervision, the means of restraint, or the like. Changes of this
sort might operate to increase or mitigate the severity of the punishment
of the convict, but would not raise any question under the constitutional
provision we are considering." And see Lindzey v. State, 65 Miss. 545,
7 Am. St. Rep. 676," 6 South. 100. In In re Miller, UO Mich. 677, 64
Am. St. Bep. 877, 68 N. W. 990, a statute denying to convicts serving a
second term, any reduction from their sentence for good behavior, is held
applicable to criminals whose first offense antedated the act.
Certain civil consequences may be punishment.
It would not seem to be necessary that the law contemplate a criminal
penalty at all in the strict sense of that term. Certain other civil conse-
quences attached to a past offense, in their nature disadvantageous to the
offender, are equally prohibited. Thus a law which authorized the grant-
ing of a divorce for adultery, previously only punishable by fine, has been
held ex post facto and void when applied to pre-existing offenses. Dickin-
son V. Dickinson, 3 Murph. (N. C.) 330, 9 Am. Dec. 609, though the oppo-
3 Dall. 386-401 NOTES ON U. «. REPORTS. 64
site conclnsion has been reached elsewhere. Elliott v. Elliott, 38 Md. 362 ,
Jones V. Jones, 2 Overt. 2, and see Carson v. Carson, 40 Miss. 349. A
statute requiring defendants, in certain suits prosecuted by the Federal
government, to produce certain books and papers upon demand of the
government's attorney, on pain df having the facts expected to be proved
thereupon taken as confessed in case of refusal, inflicts a punishment,
although the proceeding is civil in its nature, and is inapplicable ex post
facto. United States v. Hughes, 8 Ben. 30, 32, Fed. Cas. 15,416. Again,
the deprivation of the right to practice law or conduct religious services
is a punishment just as much prohibited, when imposed for past offenses,
as flue or imprisonment. Cummings v. Missouri, 4 Wall. 277, 18 L. Ed.
366; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Murphy & Glover Test
Oath Cases, 41 Mo. 370 ; State v. Bermondy, 36 Mo. 279 ; State v. Mc Adoo,
36 Mo. 452 ; State v. Adams, 44 Mo. 670 ; State v. Neal, 42 Mo. 119 ; Cohen
V. Wright, 22 Cal. 319 ; Ex parte Law, 35 Ga. 297. And it is not essential
that such an act define any crime or purport to inflict any penalty at all.
It may, upon its face, be no more than a mere civil regulation, and it is
only essential that it do in fact operate to inflict punishment for past
conduct. While the Supreme Court has never modified or departed from
the doctrine of these "Test Oath" cases (Pierce v. Carskadon, 16 Wall. 234,
21 L. Ed. 276), the acquiescence of some of the State tribunals has been
attended by many adverse criticisms concerning it. The Supreme Court
of Missouri still maintained that such legislation is not ex post facto , and
that to be such it should punish a x>ast act as criminal. Murphy & Glover
*Test Oath Cases, 41 Mo. 339, at p. 370. And similarly the leading 4ase
has elsewhere been relied upon as at variance with the doctrine of the
Cummings and Garland Cases. Ex parte Hunter, 2 W. Va. 159, 172; Ex
parte Quarrier, 4 W. Va. 212, 223; Peerce v. Carskadon, 4 W. Va. 248,
6 Am. Bep. 292, reversed in 16 Wall. 234, 21 L. Ed. 276. "I feel con-
strained to acknowledge," said Brown, J., in delivering the opinion of the
West Virginia Supreme Court, in one ca&e, "that in my humble opinion
the weight of the argument is decidedly in favor of the dissenting judges."
Ex parte Quarrier, 4 W. Va. 212, 223 ; and. Mason, J., dissenting in a New
York case, criticised them as giving "an interpretation to this clause of
the Constitution never contemplated by the framers and wholly at variance
with the early expounder of that instrument." Gr^en v. Shumway, 39
N. Y. 418, 434. See, also. State v. Cummings, 36 Mo. 273.
Deprivation of right to vote, whether a punishment.
A statute which in effect, though not expressly, prohibits certain persons
from engaging in professional pursuits, undoubtedly inflicts a punishment,
whether or no it be a punishment within the meaning of the rule of the
principal case. There would seem to be less ground, however, for hold-
ing a statute which similarly effects a deprivation of the right to vote for
delegates to a constitutional convention, to be a punishment in any proper
sense of the term. Yet such was one ground of the decision of the court in
Green v. Shumway, 39 N. Y. 424, 432, following Cummings v. Missouri,
and Ex parte Garland; only two of the five concurring judges, however,
based their assent upon this ground, and the proposition seems unsound
I
55 CALDER v. BULL. 3 Dall. 386-401
and has been denied elsewhere. Anderson v. Baker, 23 Md. 605 ; Washing-
ton V. State, 75 Ala. 582 ; Blair v. Ridgely, 41 Mo. 171, 97 Am. Dec. 252 ;
Shepherd v. Grimmett, 2 Idaho, 1128, 31 Pac. 795.
In the proper exercise of Its police power the State may incidentally punish
for past acts by deprivation of certain civil rights.
An important limitation has been engrafted upon the prohibition against'
ez post facto laws by a case arising under a New York statute. A law
of that State, as amended in 1895, prohibited any person from practicing
medicine as a physician who had ever been convicted of a felony by any
court. One H. was indicted and found guilty under this statute, it being
shown that he "had in 1878 been found guilty of the crime of abortion and
sentenced to imprisonment in the State penitentiary. For defendant it
was insisted that the statute was ex post facto as applied to him, because
inflicting additional punishment for past acts; and upon the other hand
it was argued that the statute was a reasonable police regulation which
the State might lawfully establish for the better proteqtion of the public
health and morals. A judgment sustaining this latter contention, by a
bare majority, in tha New York Court of Appeals, was affirmed also by a
divided court, upon appeal to the national Supreme Court. People v.
Hawker, 152 N. Y. 240, 46 N. E. 608 ; Hawker v. New York, 170 U. S. 201,
42 L. Ed. 1007, 18 Sup. Ct. 578.
Different or greater punishment, what is.
A very slight change in the punishment is sufficient to bring a statute
under the ban as "changing the punishment and inflicting a greater pun-
ishment" than that previously imposed. This is true unless the new pen-
alty be clearly a mitigation or remission of the former punishment, when
the rule is otherwise. 'It is enough to bring the law within the condemna-
tion of the Constitution," said Denio, J., "that it changes the punishment
after the commission of the offense, by substituting for the prescribed
penalty a different one. We have no means of saying whether one or the
other would be the most severe in a given case. That would depend upon
the disx)osition and temperament of the convict. The legislature cannot
thus experiment upon the criminal law." Hartung v. People, 22 N. Y. 106.
In that case the validity of a law was involved which changed the pun-
ishment for murder from death upon the order of the trial judge, to im-
prisonment at hard labor for one year, and then death upon the warrant
of the Governor of the State, and not otherwise, thus putting it in the
power of the executive to postpone sentence of death for an indefinite
time. This was held inapplicable to a pre-existing case on the above
grounds, although the court admitted that very probably the legislature
intended the law as favorable to those accused. This law being repealed,
and the old re-enacted, it was held upon similar reasoning that the old
law could tLot be applied retroactively because not clearly in mitigation
of the statute thereby repealed. Ratzky v. People, 29 N. Y. 124 ; see, also,
Wilson V. Ohio etc. R. R., 64 111. 542. A law, changing the penalty for
murder from imprisonment or death, to death, is plainly objectionable
as inflicting a greater punishment. Marion v. State, 16 Neb. 353, 20 N. W.
3 Ball. 386-401 NOTES ON U. S. REPORTS. 56
291. Nor is it necessaiy to show in the particular case that 'the law must
necessarily inflict a greater punishment than would otherwise have heen
imposed. It is enough that it might do so. Thus^ the statute making the
minimum penalty for ^keeping a disorderly house, greater than under the
previous law, even though the maximum penalty is reduced, cannot be
retrospectively applied. Beard v. State, 74 Md. 132, 21 Atl. 701; Lindzey
V. State, 65 Miss. 545, 7 Am. St. Bop. 676, 5 South. 100.
Additional panlshment, however slight, inhibited.
Similarly additional punishment imposed, though of small moment as
compared to the original penalty, is within the definition of "greater pun-
ishment." Thus to enact that one guilty of treason shall be deprived of
the right to practice law is void if retrospective. Cumraings v. Missouri
4 Wall. 277, 18 L. Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366.
With reference to this point Justice Miller, in his dissenting opinion, said :
"A part of the matter of which the applicant is required to purge himself
on oath may amount to treason, but surely there could be no intention
or desire to inflict this small additional punishment for a crime whose
penalty already was death and confiscation of property" (p. 394), 18
L. Ed. 375. The majority of the court, however, thought otherwise. The
proposition is further illustrated by a Colorado statute, respecting con-
victed murderers. The statute directed the warden of the penitentiary to
keep such prisoners in solitary confinement, admitting only physicians,
attendants, counsel and a religious adviser to see them, and empowered the
warden^ instead of the trial judge, to fix the time of execution, requiring
him not to divulge it to the prisoner. In general these features were ab-
sent from the old law by "which such offenders were imprisoned in the
county jails, and were declared sufficient to bring the statute within the
prohibition of the ex post facto clause of the Constitution, if applied to
prior crime. Medley, Petitioner, 134 U. S. 171, 83 L. Ed. 840, 10 Sup. Ct.
384. The decision was largely based upon the fact that solitary confine-
ment was a very palpable addition to the previous penalty. Justice Miller
said: "Instead of confinement in the ordinary county prison of the place
where he and his friends reside; where they may, under the control of the
sheriff, see him and visit him; where the sheriff and his attendants must
see him; where his religious adviser and his legal counsel may often visit
him without any hindrance of law on the subject, the convict is trans-
ferred to a place where imprisonment always implies disgrace, and which,
as this court has judicially decided in Ex parte Wilson, 114 U. S. 417, 29
li. Ed. 89, 5 Sup. Ct. 935 , Mackin v. United States, 117 U. S. 348, 29 L. Ed.
909, 6 Sup. Ct. 777, Parkinson v. United States, 121 U. S. 281, 30 L. Ed.
959, 7 Sup. Ct. 896, and United States v. De Walt, 128 U. S. 393, is itself
an infamous punishment, and is there to be kept in solitary confinement."
Pages 168, 169, 33 L. Ed. 839, 10 Sup. Ct. 386, 387. Justices Bradley and
Brewer, dissenting, held that these changes were merely trifling. The case
overruled In re Tyson, 13 Colo. 484, 22 Pac. 810,
\
67 CALDER v. BULL. 3 Dall. 386-401
S0tro«peetiTe laws In mitUstkUon of punlsliment not problbited.
This rule is dearly announced by Justice Chase in the leading case
(p. 391), and has often been followed; although different courts have dif-
fered in their views as to what constituted a mollification of the prior
penalty. Lynn v. State, 84 Md. 78, 35 Atl. 22; Hartung v. People, 22
N. Y. 104 ; Commonwealth v. Wyman, 12 Cush. 239. Judge Denio lays
down the following rule: "In my opinion ... it would be perfectly com-
petent for the legislature by a general law to remit any separable portion
of the prescribed punishment," as to dispense with the fine or imprison-
ment in a law prescribing both as a penalty, or "the term of imprisonment
might be reduced or the number of stripes diminished in cases punishable
in that manner. Anything which, if applied to an individual sentence,
would fairly fall within the idea of a remission of part of the sentence
would not be liable to objection." Hartung v. People, 22 N. Y. 95, 105.
To a similar effect is the language of Chief Justice Shaw : "An act plainly
mitigating the punishment of an offense is not ex post facto; on the con-
trary it is an act of clemency." Commonwealth v. Wyman, 12 Cush. 239,
where a law changing the penalty for arson from death to life imprison-
ment, was held not inhibited when retrospectively applied. People v.
Hayes, 140 N. Y. 491, 492, 37 Am. St. Eep. 576, 35 N. E. 952, involved the
validity of a law amending the pre-existing punishment so that imprison-
ment thereundrt* might be for a less but not for a greater term; and it
was held applicable to a previous offense. The Supreme Court of Mary-
land has declared unobjectionable, when retrospectively applied, a statute
deereasing from seven years to one year, the maximum period during which
the putative father of a bastard child might be imprisoned for failure to
execute a proper bond for its maintenance. Lynn v. State, 84 Md. 78, 35
Atl. 22.
But in some other jurisdictions courts have upheld retrospective laws
which were not so clearly in mitigation of the previous penalty. It has
heen held that a statute changing a penalty for aiding in the concealment
of stolen property from imprisonment in the penitentiary for a certain
term of years, to the same penalty and "fine and imprisonment, or both,
at the discretion of the juiy" was not ex post facto. Turner v. State, 40
Ala. 21, 29. The ground of the decision was that the statute simply pro-
vides a "mitigated alternative punishment." See, also, Moore v. State, 40
Ala. 49, 54. Still more at variance with the doctrine of the New York
and Massachusetts cases above, is Strong v. State, 1 Blackf. 193, 197 (see
Dawson v. State, 6 Tex. 347), where a retrospective statute changing the
penalty for perjury from a maximum of one hundred stripes, to a maxi-
mum of seven years' imprisonment, was held valid. The decision was
hased ux>on the ground that the new statute did not clearly increase the
punishment, and that, therefore, the law should be upheld.
(4) Every law tbat alters the legal rules of evidence, and receives less, or
diffezent testimony,, than the law required at the time of the commission of the
offense, tn order to convict the offender.
"At other times," said Justice Chase, in speaking of certain English
ex post facto laws, "they violated the rules of evidence (to supply a defi-
i
3 DaU. 386-401 NOTES ON U. S. REPORTS. 69
ciency of legal proof) by admitting one witness when the existing law re-
quired two; by reoeiving evidence without oath; or the oath of the wife
against a husband, or other testimony, which the courts of justice would
not admit/' It is not surprising to find that the application of this branch
of the rule has been attended with difficulty. ^ "Legal rules of evidence"
shade off into other rules of procedure, and it is no easy task to reconcile
the authorities by adopting this basis of the distinction between the admis-
sible and the inadmissible. The Supremo Court of New Jersey has ex-
pressed some ^oubt as to the soundness of this statement, declining in the
Moore Case already discussed, to base its decision thereon. 42 N. J. L. 208,
43 N. J. L. 203, 39 Am. Rep. 558. "Such a construction," said Chief Justice
Beasley, speaking of this rule, "obviously expends the constitutional pro-
hibition so as to interdict an alteration by subsequent legislation of a part
of the legal procedure in force at the time of the committing of the offense.
I am not aware that this view has been sanctioned by a judicial decision."
42 N. J. L. 229. And Judge Dixon observed : "It may not be presumptuous
to say that doubts may be entertained whether this fourth class does not
inchide cases outside of the prohibition. . . . Mr. Bishop declines to assent
to it, and Chief Justice Beasley mentions it with a 'perhaps' (vide supra),
and it is easy to see that it may entrench too far upon legislative control
over mere methods of procedure." 43 N. J. L. 216, 39 Am. Rep. 569. Not-
withstanding this criticism, however, it is sufficiently apparent from the
decisions that the class thus defined in the leading case has proved not too
broad, but too narrow; and the effect of the Kring Case and of others to
be discussed below has rather been to extend than to restrict the operation
of the prohibition.
Less or different testimony, what is.
An instance of a statute declaring sufficient, less or different testimony
than the preceding law required, is to be found in an Alabama case. A
statute of that State which provided for the conviction of an accused for
misdemeanor, on the uncorroborated testimony of an accomplice, cor-
roborating evidence having been required under the old law, is clearly
ex post facto and inapplicable to prior offenses. Hart v. State, 40 Ala. 22.
The same is true of a law permitting conviction upon circumstantial evi-
dence where a former law demanded direct evidence. This is illustrated
by State v. Johnson, 12 Minn. 484, 485, 93 Am. Dec. 247, 248, where an
amendatory statute, respecting polygamy, which permitted indirect or cir-
cumstantial evidence of cohabitation, to prove a marriage, where formerly
direct evidence only was admissible, was held void when applied retrospec-
tively. So, too, a statute overthrowing certain legal presumptions advan-
tageous to an accused, is objectionable if retrospectively applied. As,
where a statute with reference to the crime of selling liquor to a slave, de-
clared that the act of the agent so doing was to be presumed to be the act
of the principal (State v. Bond, 4 Jones (N. C), 10), or subverts the pre-
sumption of innocence to which an accused is entitled. Cummings ▼.
Missouri, 4 Wall. 277, 18 L. Ed. 356. A statute overthrowing a mere pre-
sumption as in State v. Bond, 4 Jones (N. C), 10, differs from a statute
overthrowing a conclusive presimiption of innocence, since in the latter case
50 CALDER v. BULL. 3 Dall. 386-401
the amount or value of the testimony supporting the accusation is wholly
immaterial. Nevertheless it was held in the Kring Case/ that a law which
makes a sentence for a lesser degree of murder operate as a conclusive pre-
sumption of innocence of the greater, is a legal rule of evidence ; and that a
statute doing away with this rule is within this definition so far as retro-
spective hecause it ''so changes the rules of evidence that what was conclu-
sive evidence of innocence of the higher grade of murder when the crime was
eommitted, namely, a judicial conviction for a lower grade of homicide, is
fiot received as evidence at all, or if received, is given no weight on hehalf
of the offender." Kring v. Missouri, 107 U. S. 228, 27 L. Ed. 508, 509,
2 Sup. Ct. 449. It would seem, .however, that this point was considered
of but little weight, and the decision was rested mainly on other grounds.
The same would seem to be true of the decision of Ignited States v. Hughes,
8 Ben. 30, 32, Fed. Cas. 16,416.
As to mere matters of procedure.
A distinction is drawn in many of the cases between statutes altering
rales of evidence and those concerned with mere matters of procedure.
State V. Moore, 42 N. J. L. 228 ; Moore v. State, 43 N. J. L. 214, 215, 225,
231, 39 Am. Rep. 568, 569, 570; State v. Bond, 4 Jones (N. C), 10; Mrous
T. State, 31 Tex. Cr. Rep. 699, 37 Am. St. Rep. 835, 21 S. W. 764; Walston
V. Commonwealth, 16 B. Mon. 37, 39 ; People ex rel. v. McDonald, 5 Wyo.
533, 534, 42 Pac. 17; State v. Hoyt, 47 Conn. 532. Upon this ground a
provisi#n of the Kentucky Criminal Code of 1854, allowing the State a
right to challenge five jurors in criminal cases, none being previously per-
mitted, was held applicable in the trial of prior offenses, it being further
pointed oat that defendant had a right not to a partial, but to an impartial,
JQjy merely. And similarly a statute increasing the number of peremptory
fhallenges allowed the State from two to twenty has been held applicable
in the trial of a murder previously committed. State v. Hoyt, 47 Conn.
532; see, also, State v. Ryan, 13 Minn. 375, 377. So, also, errors in the
commitment of a prisoner, as to the place of imprisonment or time of
punishment, may also be corrected by a retroactive statute. Ex parte
Bethurum, 66 Mo. 648, 549.
But a diange In procedure may be objectionable ez t>ost facto.
A distinction which excludes all matters of pirocedure, however, does not
reach the true line of delimitation between valid and* invalid retrospective
<*riminal laws. And it is just here that we have to consider an important
principle which has been introduced by the authorities, and which supple-
ments the rule of the leading case in an important regard. It is that a
change in procedure may be objectionable, although not within the terms
of Mr. Justice Chase's definition, if it operates to deprive an accused of
any of those substantial rights which may have been vested in him at the
time of the offense, and upon which he was entitled to rely. Gibson v. Mis-
sissippi, 162 U. S. 590, 40 L. Ed. 1081, 16 Sup. Ct. 910 ; People ex rel. v.
McDonald, 5 Wyo. 533, 534, 42 Pac. 17; State v. Thompson, 141 Mo. 417,
42 8. W. 951 ; Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262, 4 Sup. Ct. 202 ;
Mrous V. State, 31 Tex. Cr. Rep. 599, 37 Am. St, Rep. 835, 21 S. W. 764.
\
3 Dall. 386-401 NOTES ON U. S. REPORTS. 60
It will be seen hereafter that the Supreme Court has gone further than
this in some of its ntterances^ though not in its decisions, and has broadly
declared that any law which "alters the situation of an accused to his
disadvantage" is iri'valid ex post facto. Kring v. Missouri, 107 U. S. 231,
27 L. Ed. 509, 2 Sup. Ct. 449 ; and see People ex rel. v. McDonald, 5 Wyo.
533, 534, 42 Pac. 17. But the decided cases stop short of this affirmation
and hold retrospective statutes affecting rules of evidence and other mat-
ters of procedure inapplicable only when the change dispenses with some
substantial protection vested in the accused at the time of his offense.
This is, perhaps, the true ground of the decision that a New Jersey statute,
seeking to reanimate a right to prosecute which had expired by statute
of limitation, might not be so applied, because ex post facto. Moore v.
State, 43 N. J. L. 203, 214, 215, 225, 231, 39 Am. Rep. 568, 569,^570. And
also the true ground of several other cases, although they affirm the prin-
ciple rather in the broader form in which it appears in the Kring Case.
Thus a Georgia statute, enacting that a juror is incompetent only, if his
opinion as to the guilt or innocence of the accused has been formed from
sworn testimony, was held ex post facto when applied to prior offenses,
the old rule having been that a juror was incompetent who had previously
formed any opinion in the matter at all. The decision was put upon the
ground that the practical effect of the new law was "greatly to impair
the chance for acquittal; . . . and that if not ex post facto, technically
speaking, such a law had a retrospective operation which ought not to bf
sanctioned in the criminal law.*' Rejmolds v. State, 1 Ga. 228. Similarly
a statute requiring the jury to assess the punishment in certain cases
had been held inapplicable to pre-existing offenses, 6n 'the ground that
such a law prejudiced the situation of the accused. Holt v. State, 2 Tex.
363, 364. A State constitutional provision withdrawing riprht of jury trial
altogether is objectionable, ex post facto. State ex rel. v. Baker, 24 South.
241. And, again, in the Kring Case, already adverted to, a law which
made a plea of guilty of murder in the second degree operate as an ac-
quittal of murder in the first degree, was replaced by a statute, declaring
this rule inoperative, where the judgment on the plea of guilty was there-
after lawfully set aside. This amendatory statute was held inapplicable
to the case of a defendant whose offense was committed under the old
law, although it was strenuously argued that the change was a mere
alteration "of a rule of procedure. Kring v. Missouri, 107 U. S. 231, 27
L« Ed. 509, 2 Sup. Ct. 449; see, also, in a Colorado case a statute repeal-
ing a provision whereby a plea of guilty operating as a conviction of murder
in the second degree, was held inapplicable ex post facto. Garvey v.
People, 6 Colo. 565, 45 Am. Rep. 536.
If change in procedure depriye an accuaed of no substantial rlglits It Iq
unobjectionable.
But if the change in procedure does not deprive an accused of any of
those substantial and vested rights to which he is entitled, it is unobjec-
tionable. Upon this ground it was held that a law, giving to justices of
the peace jurisdiction of cases of intoxication, may be applied in the trial
of a pre-existing cause. Stat« v. Welch, 65 Vt. 54, 25 Atl. 901. The num-
61 CALDER V. BULL. 3 Dall. 386-^1
ber of trial ju^es within a given jurisdiction may be enlarged. State ▼.
Thompson, 141 Mo. 417, 42 S. W. 951. And in Jones v. Commonwealth,
86 Va. 663, 10 S. E. 1006, a /law dispensing with a preliminary examina-
tion in criminal proceedings was held applicable to the trial of an offense
previonsly committed, on the ground that no vested right of the defendant
was infringed. Similarly a law providing that criminal prosecutions
might be either by information or indictment, as thus applied, was declared
not objectionable. In re Wright, 3 Wy6. 481, 483, 31 Am. St. Bep. 97, 99,
27 Pac. 566; 567. As also a law changing the method of prosecution from
indictment to information (Lybarger v. State, 2 Wash. 557, 27 Pac. 450) ;
a law permitting prosecution by either of these proceedings instead of but
one (Sage v. State, 127 Ind. 19, 26 N. E. 669) ; and a statute taking from
the jury power to judge lK>th law and fact (Marion v. State, 20 Neb. 233,
29 N. W. 911). The number of trial jurors may be reduced from twelve
to eight in the trial of a prior homicide (State v. Bates, 14 Utah, 304, 47
Pac. 81) ; no rights of an accused are impaired by a statute subsequent
to the offense charged, imposing certain qualifications on jurors, and re-
quiring that they possess good intelligence, sound judgment and fair char-
acter (Gibson v. Mississippi, 162 U. S. 590, 40 L. Ed. 1081, 16 Sup. Ct.
910). "The inhibition upon the passage of ex post facto laws," said the
national Supreme Court, "does not give a criminal a right to be tried, in
all respects, by the law in force when the crime charged was committed.
The mode of trial is always under legislative control, subject only to the
condition thai the legislature may not, under the g^ise of establishing
modes of procedure and prescribing remedies, violate the accepted prin-
ciples that protect an accused person against ex post facto enactments."
And it has been held elsewhere, after an elaborate review of the authori-
ties, that the repeal of a statute, allowing an' accused upon a certain show-
ing of fact, a change of venue for his preliminary examination, violates
no substantial right and is not ex post facto. People ex rel, v. McDonald,
5 Wyo. 533, 42 Pac. 17. Furthermore it is settled that a statute which
merely enlai^es the class of persons competent to testify affects no vested
rights of an accused. The State may, therefore, apply an enactment
rendering convicted felons competent witnesses, in the trial of a prior
offense (Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262, 4 Sup. Ct. 202) ; or a
statute making a seduced female a competent witness, in a prosecution
for the seduction, prior to the statute. Mrous v. State, 31 Tex. Cr. Rep.
599, 87 Am. St. Bep. 836, 21 S. W. 764. In the Texas case the court
declared that "Removing restrictions upon the competency of certain
classes of witnesses relates to mode of procedure only, in which no one can
be said to have a vested right, and which the State, on grounds of public
policy, may regulate at pleasure. Laughlin v. Commonwealth, 13 Bush,
261." Mrous v. State, 31 Tex. Cr. Rep. 600, 87 Am. St. Rep. 835, 21 S. W.
764. A similar question was raised in Commonwealth v. Homer, 153 Mass.
343, 26 N. E. 872, but the court disposed of the point by holding that it
did not plainly appear that the law was intended to retrospect at all.
An act permitting the comparison by witnesses and jury of a writing, the
genuineness of which was in dispute, with others admittedly genuine, and
3 Dall. 386-401 NOTES ON U. S. REPORTS. 62
making admissible the testimony deduced therefrom, is applicable in the
trial of an offense committed at a time when this line of proof was inad-
missible. State V. Thompson, 141 Mo. 417, 42 S. W. 951, affirmed in 171
U. S. 382, 383, 48 L. Ed. 206, 18 Sup. Ct. 922, 923. See, also, the learned
opinion rendered by the Supreme Court of Wyoming, per Qroesbeck, C. J.,
where the cases in which mere changes in procedure have been held un-
' objectionable are Vsummarized. People ex rel. v. McDonald, 6 Wyo. 533,
534, 42 Pac. 17; see, also. Murphy v. Commonwealth, 52 N. E. 507, a
Massachusetts case reviewing the authorities and upholding a statute
imposing indeterminate sentences.
Definition of tlie leading case as affected by Krlng ▼. Missouri.
It only remains to consider the decision in the Hiring Case, with the
definition of the ex post facto laws, which it offered, and its effect upon
the authority of that laid down in the principal case. Kring v. Missouri
was the first case in which the Supreme Court felt called upon to with-
hold its approval from the long-established definition of Justice Chase,
and the majority opinion contains a statement of the ex post facto pro-
hibition which was manifestly believed to be more nearly accurate. See
People V. McDonald, 5 Wyo. 533, 43 Pac. 17. "An ex post facto law,"
it was said, ''is one which, in its operation, makes that criminal which was
not so at the time the action was performed; or which increases the pun-
ishment, or, in short, which in relation to. the offense or its consequences,
alters the situation of a party to his disadvantage." According to this
definition which, it was affirmed, was a correct exposition of the term,
the law in question in the case at bar was declared invalid as thus applied;
because taking away what, by the law of the State at the time of the
homicide, was a good defense to the charge of murder in the first degree.
The dissenting judges relied largely upon the definition of the principal
case, which, they insisted, included all objectionable forms of retrospective
criminal legislation. Obviously the proposition that a law which alters the
situation of an accused to his disadvantage is objectionable when applied
ex post facto broadens the scope and operation of the constitutional pro-
hibition considerably beyond the definition of the leading case. It is ap-
parent, also, that it is broad enough to include all the laws declared ex post
facto, which could not be brought fairly within the definition of Calder
V. Bull. But the difficulty with it is that it seems to be too broad, and
must be received with caution. It would include changes in procedure
which have been declared unobjectionable^ because depriving of no vested
right, although manifestly to the possible disadvantage of an accused.
Hopt V. Utah, 110 U. S. 574, 28 L. Ed, 262, 4 Sup. Ct. 202; Mrous v. State,
31 Tex. Cr. Repi 599, 37 Am. St. Rep. 835, 21 S. W. 764. "That decision,"
observed the Supreme Court of Indiana, with reference to Kring v.
Missouri, "does not go to the extent of breaking down the general rule
so long approved by the courts and text- writers, for the most that can be
said of that decision is that it declared the mode of procedure may some-
times so far materially affect the rights of an accused as to fall within
the sweep of the constitutional provision prohibiting the enactment of
ex post facto laws." Sage v. State, 127 Ind. 19, 20, 26 N. E. 669. It
63 CALDER v. BULL. 3 Ball. 386-101
mmld be a mistake to suppose that it has supplanted the definition of the
(flincipal ease. And while the authorities recognize the modification
which the Kring Case introduced (In re Medley, 134 U. S. 160, SS L. Ed.
835. 10 Sup. Ct. 384 , People ex rel. v. McDonald, 6 Wyo. 533, 42 Pac. 17) , *
they still cite, and to a large extent follow, the early decision. State v.
Welch, 65 Vt. 54, 25 Atl. 901 ; Jones v. Commonwealth, 86 Va. 663, 10 S. E.
1006; Lybarger v. State, 2 Wash. 557, 27 Pac. 450; People v. Hawker, 152
N. Y. 234, 240, 46 N.^E. 608; Hawker v. New York, 170 U. S. 201, 42 L. Ed.
1007, 18 Sup. Ct: 578 ; In re Wright, 3 Wyo. 481, 483, 31 Am. St. Rep. 97,
W, 27 Pac. 666, 667; People ex rel. v. McDonald, 5 Wyo. 533, 42 Pac. 17;
Gibson v. Mississippi, 162 U. S. 590, 40 L. Ed. 1081, 16 Sup. Ct. 910; Lynn
V. State, 84 Md. 78, 35 Atl. 22 ; Thompson v. Missouri, 171 U. S. 382, 383,
43 L. Ed. 206, 18 Sup. Ct. 922, 923.
The syllabus point has been distinguished in People v. Turner, 116 Mich.
391, 74 N. W. 519, arguendo.
Ex post facto laws. Notes, 45 Am. Rep. 644, 546; 37 Am. St. Rep.
588, 594, 596.
Laws changing punishment as ex post facto laws. Note, 8 Ann. Gas.
78. (
Constitutional provision against ex post facto laws as applicable to
judicial decision. Note, Ann. Gas. 19140, 228.
Statute changing existing law respecting peremptory challenges as ex
post facto. Note, Ann. Gas. 1912B, 812.
Ex < post facto, repeal of statute excluding evidence obtained by judi-
cial proceedings. Note, 87 L. R. A. (N. S.) 97.
Betrospectlve statutes are, in general, to 1>e condemned, althougb they may
be beneficial; and a statute should, If possible, be construed prospectively only;
but even if deariy retrospective, or if really an exercise of Judicial functions,
they violate no Federal limitations.
In applying the syllabus point the following cases, which approve the
rule there laid down are of interest : League v. Texas, 184 U. S. 161, 46
L Ed. 481, 22 Sup. Ct. 477, holding retroactive legislation is not repugnant
to Fourteenth Amendment; State v. Travelers' Ins. Co., 73 Conn. 285, 57
L. R. A. 481, 47 Atl. 310, construing Gen. Stats., § 3836, relative to taxation
of shares of insurance companies; State v. Williams, 146 N. C. 622, 14 Ann.
Gas. 562, 17 L. R. A. (N. S.) 299, 61 S. E. 62, holding void statute forbid-
ding carrying more than one-half gallon of alcoholic liquor into certain
county; Wilson v. Brinn, 124 N. C. 722, 33 S. E. 147, 148, construing act
of March 6, 1899, abolishing courts named in acts of 1895 and 1897 ; Ward
Lumber Co. v. Henderson- White Mfg. Co., 107 Va. 634, 17 L. R. A. (N. S.)
324, 69 S. E. 479, upholding law authorizing service of process on corpora-
tions by publication where they have no agent in county of suit; Win-
chester etc. R. Co. V. Commonwealth, 106 Va. 268, 269, 55 S. E. 693, uphold-
ing law creating state corporation commission.
A retrospective statute is that which takes away or impairs any vested
right acquired,, under existing laws, or creates a new obligation^ or imposes
/
3 DaU. 386-401 NOTES ON U. S. REPORTS. 64
a new duty, or attaches a new disability, in respect to transactions or con-
siderations already passed, or gives some different l^al effect to some
previous transaction to that which it had under the law when it took place.
Sedgwick on Stat. & Const. Law, 2d ed. 1874, p. 160; Cooley's Const. Lim.,
6th ed., p. 464; Wade on Retroactive Laws, §§ 1, 194, 263; City of New
Orleans v. New Orleans etc. R. R. Co., 36 La. Ann. 682; Society etc. v.
Wheeler^ 2 Gall. 138, 139, Fed. Cas. 13,166; Frellsen v. Mahan, 21 La. Ann.
104. But a mere incidental reference to past acts, as in a statute author-
izing the imposition of a tax according to a previous assessment, is not
within the meaning of this definition. Locke v. New Orleans, 4 Wall. 174,
18 L. Ed. 335; FrelLsen v. Mahan, 21 La. Ann. 104. Neither is the appli-
cation of the rate of interest prescribed by a new law to a previous loan,
where such loan was not paid and there was a continual refusal or neglect
to pay it, a retrospective operation of such law; because the new law takes
effect upon a new violation of the former obligation. Bullock v. Boyd, 1
Hoff. Ch. 303.
A law should have no retrospect.
It is laid down in the leading case and is the established rule that a law
should have no retrospect. Chief Justice Kent says: "The very essence
of a new law is a rule for future cases." Dash v. Van Kleeck, 7 Johns.
477, 502, 5 Am. Dec. 308. To the same effect is the maxim nova constitutio
futilris formam debet imponere, non praeteritis, quoted by Thompson, J.,
in the same case, and by many other cases asserting this rule. People v.
San Francisco, 4 Cal. 135; Forsyth v. Marbury, Charlt. (Ga.) 329; Bryce
V. Holmes, 2 Ala. 56. Based upon the same reasoning as the rule that a
law should have no retrospect is the constantly reiterated assertion of the
courts that legislation of this character is "generally unjust, and may be
oppressive," and "that there is neither policy nor safety in such laws . . .
they accord neither with sound legislation nor the fundamental principles
of the social compact"; Calder v. Bull, 3 DaU. 386, 397, see, also. Dash v.
Van Kleeck, 7 Johns. 489, 491, 499, 607, 5 Am. Dec. 298, 299, 305, 312 ; Davis
V. Minor, 1 How. (Miss.) 193, 28 Am. Dec. 331; Denio ex dem. Berdan v.
Van Riper, 16 N. J. L. 10, 14; Scott v. Smart, 1 Mich. 295, 302, 307; Boston
V. Cummins, 16 Ga. 107, 60 Am. Dec. 720 ; Lane v. Nelson, 79 Pa. St. 410 ;
Hess V. Werts, 4 Serg. & R. 364; Fisher v. Cockerill, 6 T. B. Mon. 138; dis-
senting opinion in Cunningham v. Dixon, 1 Marv. (Del.) 170, 41 Atl. 622.
The legislative Intent that tbe law retroact must, therefore, be clearly
ezpressed.
It must clearly appear from the words and spirit of the statute that it
was intended by the legislature to be applied retroactively. This rule has
already been asserted with reference to ex post facto laws; it applies
equally to civil and criminal statutes. In addition to the authorities there
cited, see Fisher v. Cockerill, 6 T. B. Mon. 138; Wheelwright v. Greer, 10
Allen, 391; People v. San Francisco, 4 Cal. 136; Forsyth v. Marbury,
Charlt. (Ga.) 329; Boyce v. Holmes, 2 Ala. 66; Danville v. Pace, 26 Gratt.
10, 18 Am. Rep. 669; Hannum v. Bank of Tennessee, 1 Cold. 402. As has
been said, it is not enough that a retrospective effect might be given to the
65 CALDER v. BULL. 3 Dall. 386-401
statute without doing violence to the words, the intention that it retrospect
most he clearly and anequivoeally expressed. Thus, a New York statute
was iconstraed hy the courts in such a way that a sheriff could not set up
as defense in an action of deht for the escape oi a prisoner, the subsequent
recaption of such prisoner. A later statute declaring, "That nothing in
the former act shall be construed to prevent" the setting up of such de-
fense, was held inapplicable to a case then pending. Dash v. Van Kleeck,
7 Johns. 489, ^1, 499, 507, 5 Am. Dec. 298, 299, S05, 312. A Georgia stat-
ute declared that "from and after the passage of this act" securities on
appeal and injunction bonds need not be parties to a writ of error; and
this was held not to include cases pending. Wilder v. Lumpkin, 4 Ga. 208,
214, 215, 218. In Massachusetts a statute declared that if a woman en-
titled to make complaint for the support of bastard children failed to do
so. that certain officers "may make the complaint." This was held inappli-
cable to the case of children bom before the passage of the act. Wheel-
wright V. Greer, 10 Allen, 391. A law enacting that "in any suit which
shall hereafter be commenced" persons ejected by paramount title might
recover the value of improvements made, was held by the Supreme Court of
Alabama not to apply in a subsquent suit over previous improvements.
Boyce v. Holmes, 2 Ala. 56. Contra, Bacon v. Callender, 6 Mass. 303.
If the law retroactively construed would have the effect to impair vested
rights, the courts are still more loath to accept such an interpretation on
the ground that it is strongly to be presumed that the legislature did not
in fact intend the statute so to operate. Lewis v« Brackenridge, 1 Blackf .
222, 12 Am. Dec. 2S0; Steele v. Steele, 64 Ala. 452; State v.^Sqiiircs, 26
Iowa, 346 ; Lowe v. Harris, 112 N. C. 480, 17 S. E. 540; Forsyth v. Marbuiy,
Charlt. (Ga.) 329. "Whenever an act is susceptible of a prospective opera-
tion," said the Georgia Supreme Court, "which although not favored by the
exact letter, yet may well stand with the general scope of the statute, it
shall be so construed rather than retroactively so as to take away a vested
risrht." Forsyth v. Marbury, Charlt, 324, 333, 334. In holding a law ex-
tending the time of the statute of limitations not to operate to revive old
elaims, the Supreme Court of Mississippi declared that so construed it
woald divest vested rights, and observed: "The intention of the law giver
is the best rule of expounding statutes; and when it can be discovered,
according to Lord Bacon, it ought to prevail, even though it be contrary to
the letter." Davis v. Minor, 1 How. (Miss.) 183, 194, 28 Am. Dec 832.
Similarly a Maine statute validating a previous marriage, void through
some informality, was held constitutional in this aspect; but the court de-
clared that such a statute was not to be presumed to contemplate other
retroactive effects which might follow, such as removing the obligation to
pay for the past support of paupers so married, from one town, and placing
it upon another ; that as so construed it would affect vested rights, and that
the legislature was not to be supposed to have intended these consequences,
Bnmswiek v. Litchfield, 2 Greenl. (Me.) 33. And see Lewis v. Bracken-
ridge, 1 Blackf. 220, 222, 12 Am. Dec. 280; Steele v. State, 64 Ala. 452;
State V. Squires, 26 Iowa, 346; Lowe v. Harris, 112 N, C. 472, 480, 17 S. E.
MO.
3 Dall. 386-401 NOTES ON U. S. REPORTS. 66
When remedial or iMiieflciaL
But this presumption against retrospective intent is not so strong when
the statute is beneficial or remedial, and in accordance with natural equity.
In Larkin v. Saffarans, 15 Fed. 150, Hammond, J., held an act of Congress
conferring additional jurisdiction on the Circuit Courts, without any ex-
press reference to pending cases, to be applicable to them, and based his
decision on this ground. Statutes of oblivion or pardon fall under this
head; or a law curing a defect in a conveyance of land (Mercer v. Watson,
1 Watts, 356 , affirmed in 8 Pet. 110, 8 L. Ed. 884 ; Lane v. Nelson, 79 Pa.
St. 410 ; Wilkinson v. Leland, 2 Pet. 661, 7 L. Ed. 554) ; statutes legalizing
a previous issue of bonds (McMillen v. County Judge, 6 Iowa, 394; Bass
v. Mayor etc., 30 Ga. 851) ; statutes validating marriages void for some
minor defect (Goshen v. Stonington, 4 Conn. 209, 224, 226, 10 Am. Dec. 128,
180; Boston v. Cummins, 16 Ga. 107, 60 Am. Dec. 720). It is perhaps safe
to lay it down as a general rule that laws coming under this head include
most, if not all, of those retrospective laws which are upheld as valid by
the court. "There are cases," observed Chief Justice Chase in the prin-
cipal case, "in whicK laws may justly, and for benefit of the community,
and also of individuals, relate to a time antecedent to their commence-
ment." On this same point Chief Justice Hosmer says: "I very much ques-
tion whether there is an existing government in which laws of a retroactive
nature and effect, impairing vested rights, but promotive of justice and tl(e
ereneral good, have not been passed." (Joshen v. Stonington, 4 Conn. 209,
222, 10 Am. Dec. 126. And see Fisher y. Hi^ns, 5 T. B. Mon. 140, 148,
149. '
Not speciflcally prohibited in the national Constitution.
This follows practically from the proposition that ex post facto applies
to criminal laws only, and was directly involved and passed upon in the
leading case. The prohibition against laws impairing the obligation of
contracts places the ban of unconstitutionality on retrospective civil laws
of that character; and since the adoption of the Fourteenth Amendment,
retrospective laws which work a deprivation of property without due pro-
cess of law are also inhibited. Freeland v. Williams, 131 U. S. 420, 83
L. Ed. 199, 9 Sup. Ct. 768. A similar provision is contained in the Con-
stitutions of the States generally, and the effect of this limitation upon the
principles underlying the power to enact retrospective laws will be con-
sidered on a subsequent page.
Aside from the limitations which these clauses have put upon the power
to pass retrospective laws, the national Constitution contains no restric-
tions controlling such legislation. "That there exists a general power in
the State governments," said the court in Baltimore etc. R. R. v. Nesbit,
10 How. 410, 13 L. Ed. 472, '*to enact retrospective or retroactive laws,
is a point too well settled to admit of question at this day." ** There
is certainly no part of the Constitution of the United States which applies
to a State law of this description; nor are we aware of any decision of
this, or of any Circuit Court, which has condemned such a law upon this
ground, provided its effect be not to impair the obligation of a contract."
/
67 CALDER v. BULL. 3 Dall. 386-401
Saiterlee v. Matthewson, 2 Pet. 380, 413, 7 L. Ed. 469, afifirming the deci-
sion in the Pennsylvania court, 16 Sergs & R. 186. See, also, Watson v.
Mercer, 8 Pet. 110, 8 L. Ed. 884; Carpenter v. Pennsylvania, 17 How. 463,
15 L. Ed. 129; Freeland v. Williams, 131 U. S. 420,^ 33 L. Ed. 199, 9 Sup.
Ct. 768; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773;
Albee v. May, 2 Paine, 79, Fed. Cas. 134; Wilson v. Hardesty, 1 Md. Ch.
68; Buekner v. Street, 1 Dill. 264; 7 Bank. Reg. 262, Fed. Cas. 2098. It
may, therefore, be afl&rmed that jetrospective laws, with the above-noted /
exceptions, are valid, unless prohibited in the fundamental law of the sev-
eral States. This rule is recognized in the above cases, and in many others,
among which may be mentioned, Scott v. Smart, 1 Mich. 295, 302, 307;
Coles v. Madison Co., Breese, 156, 12 Am. Dec. 163; Danville v. Pace, 25
Gratt. 10, 18 Am. Rep. 669; Henderson R. R. v. Dickerson, 17 B. Mon. 177,
6B Am. Dec. 149, 150 ; Bonner v. Martin, 40 Ga. 505 ; Peerce v. Kitzmiller,
19 W. Va. 573, 577 ; Fisher v. Higgins, 5 T. B. Mon. 148.
Of the proper scope or retrospective legislation.
Notwithstanding all that may be said against retrospective legislation,
there is a well-recognized field for its legitimate operation. "Whence,"
ssks Saltonstall, J., i^ Foster v. Essex Bank, 16 Mass. 245, 261, in conced-
ing the power to enact retrospective laws, "whence, it may be asked, does
this arise ? From the necessary imperfections of human society. If society
were so perfect as never to be in need of occasional remedial and equi-
table regolatioais, by means of retrospective laws, it would, perhaps, hardly
need any laws." "A legislature,'' says Parker, C. J., in the same case,
"which in its acts not expressly authorized by the Constitution, limits itself
to correcting mistakes, and to providing remedies for the furtherance of
justice, cannot be charged with violating its duty or exceeding its author-
ity." Laws may therefore retrospect when beneficial in their objects, vio-
lating no true equitable rights, and operating in furtherance of essential
justice. And this proposition may thus be illustrated : A and his wife
attempted to convey the estate of the wife by a deed defectively acknowl-
edged; after the wife's death, the grantees under the deed were, by reason
of this defect, ejected by the heirs at law. The legislature subsequently
remedied the defective deed, and the grantees thereunder were thus en-
abled to recover the land which A and his wife intended to convey to them.
The law thus applied was held valid. Mercer v. Watson, 1 Watts, 356,
affirmed in, 8 Pet. 110, 8 L. Ed. 884; and see, also, to the same effect, Ran-
dall v. Kreiger, 23 Wall. 149, 23 L. Ed. 126; again, B and his wife attempted
to convey a parcel of land to C by a deed defectively acknowledged ; by a
later valid deed the property was conveyed to D, who was ignorant of the
T>rior deed. A subsequent statute^ gave validity to the defective deed to
C. but this was held inapplicable to divest D, an innocent purchaser for
value, of his vested right in the property. Brinton vT See vers, 12 Iowa,
389. Nor can it be said that retrospective laws whose operation is benefi-
cial and in furtherance of justice, violate any vested rights, for as said
by Parker, C, J., "There is no such thing as a vested right to do wrong."
Foster v. Essex Bank, 16 Mass. 245, 273. Advantages acquired through a
mere slip of fo^ and contrary to natural justice are not vested rights to
3 Dall. 386-401 NOTES ON U. S. REPORTS. 68
be protected by the courts. Freeland v. Williams, 131 U. S. 420, 33 L. Ed.
199, 9 Sup. Ct. 768. But in remedial legislation of this character, it must
appear that the legislature had power to dispense with the necessity for
• such a formality, or whatever it may be, by prior statute, ere it be declared
capable of remedying it by subsequent law. To illustrate: Certain min-
isters of the gospel, having been in the habit of performing marriage cere-
monies in Connecticut, who were not empowered by the State law to per-
form the marriage ceremony, it came about that many parties who had
been regarded as properly married were not so in fact; the legislature
accordingly passed a law declaring that previous marriages, so performed,
were to be considered as valid. This law was upheld by the court as a
valid exercise of power. Goshen y. Stonington, 4 Conn. 209, 224, 226, 10
Am. Dec. 128, 130. See, also, State v. Adams, 65 N. C. 537. Again, a
board of public works in the District of Columbia, having entered into con-
tracts for the improvement of streets, and levied taxes therefor without
specific authority. Congress subsequently passed an act ratifying such ac-
tion, w^hich was held valid. Mattingly v. District of Columbia, 97 U. S.
687, 24 L. Ed. 1098. This rule is recognized in a number of cases, among
which may be mentioned, Bridgeport v. Housatonic R. R., 15 Conn. 496, 497;
Gibson v. Mason, 5 Nev. 297; Goshen v. Stonington, 4 Conn. 209, 224, 226,
10 Am. Dec. 128, 180; Brunswick v. Litchfield, 2 Greenl. (Me.) 33; Trus-
tees v. McCaughy, 2 Ohio St. 152 ; McMillen v. County Judge, 6 Iowa, 394.
In some jurisdictions, however, the courts have gone further in sanction-
ing retrospective legislation. And in a Georgia case a judgment was
vacated in order to admit certain evidence on a subsequent trial. Bonner
v. Martin, 40 Ga. 501, 505. See, also. Ex parte Bibb, 44 Ala. 152 ; Ex parte
Norton & Shields, 44 Ala. 185. In Forster v. Forster, 129 Mass. 566, Gray,
J., collects and classifies cases upholding retrospective legislation.
But where the defect in the transaction sought to be validated is some-
thing more than mere matter of form, the rule is otherwise. The propo-
sition is illustrated by Shonk v. Brown, 61 Pa. St. 320. In that case a
married woman who held property as beneficiary under a will and under
express restraints upon her power to convey sought to give deed for the
same; an attempt was made to validate this deed by a subsequent statute,
in defraud of the rights of her heirs in whom the property had vested upon
her death. This statute was held inoperative. Aiid see Mitchell v. Camp-
bell, 19 Or. 208, 24 Pac. 468.
Bemed&irstatutaB, what are.
Remedial laws have been defined as those "made from time to time to
supply defects in the existing law, whether arising from the inevitable
imperfection of human legislation, from change of circumstances, from
mistake, or any other cause." Sedgwick's Stat. & Const. Law (2d ed.),
p. 32. And see Gillespie v. Allison, 115 N. C. 548, 20 S. E. 629. Of such
a nature are statutes confirming proceedings of a court void for want of
jurisdiction. Simmons v. Hanover, 23 Pick. 193. Similarly laws altering
certain matters of procedure are remedial. A statute requiring a defend-
ant in pleading usury as a defense against a note, to tender payment of
the legal rate of interest (Baugher v. Nelson, 9 Gill, 299, 305, 307, 52 Am.
69 • CALDER v. BULL. 3 Dall. 386-401
Dec 698, 699) ; and a statute saving a certain period from the time within
which an appeal from a lower to a higher court must he had, as applied
to cases already commenced. Davis v. Ballard, 1 J. J. Marsh. 577, 579.
Laws confirming marriages illegally celehrated are remedial (Goshen v.
Stonington, 4 Conn. 209, 224, 226, 10 Am. Dec. 128, ISO; Brunswick v.
Litchfield, 2 Greenl. 26, 33) ; so also are laws validating conveyances of
land (Watson v. Mercer, 8 Pet. 110, 8 L. Ed. 884) ; and void sales of land
by an executor (Leland v. Wilkinson, 10 Pet. 294, 9 L. Ed. 4S0). See, also,
Aldridge v. Tuscumhia etc. R. R. Co., 2 Stew. & P. 207, 23 Am. Dec. 812 ;
Elliott V. Mayfield, 4 Ala. 423 ; Scott v. Smart, 1 Mich. 302, 307 ; Foster v.
Essex Bank, 16 Mass. 245 ; McMillen v. County Judge, 6 Iowa, 394. A ^
statute giving to remaindermen the right to have partition of lands Held
in remainder vested before the passage of the act is remedial and valid.
Gillespie v. Allison, 115 N. C. 548, 20 S. E. 629.
Changes in rules of procedure applicable in the trial of pre-existing causes.
The general rule is that a party must submit to have his cause tried by
the rules of procedure in force at the time his cause is being adjudicated.
This is true even in those States in which retrospective laws are specifically
prohibited. Willard v. Harvey, 24 N. H. 344; Rich v. Flanders, 39 N. H.
313, 321, 349, 376, 380, 381, 387. Unless such change in procedure affects the
rights of either party injuriously, oppressively or unjustly* Simpson v.
City Savings Bank, 56 N. H. 469, 22 Am. Bep. 493.
Express prohlbitionB against.
The twenty-third article of the Bill of Rights of New Hampshire pro-
vides: "Retrospective laws are highly injurious, oppressive, ajid unjust.
No such laws, therefore, should be made, either for the decision of civil
causes or the punishment of offenses." Woart v. Winnick, 3 N. H. 475,
476, 14 Am. Dec. 385, 387 ; Rich v. Flanders, 39 N. H.^ 304 ; Simpson v. City
Sav. Bank, 56 N. H. 466, 469, 22 Am. Rep. 498. In Missouri the Constitu-
tion declares that "no law retrospective in its operation can be passed.''
State V. Fry, 4 Mo. 120. The Constitution of 1865 of (Georgia proyides,
ex post facto laws impairing the obligation of contracts, and retrospective
laws injuriously affecting any right of the citizen are prohibited. Aycock
V. Martin, 37 Ga. 124. Section 16 of the Declaration of Rights of Texas
declares that : "No retrospective or ex post facto law, or law impairing the
obligation of contracts shall be made." De Cordova v. City of Galveston,
4 Tex. 473. The provision of the Louisiana Constitution of 1868, that "No
ex post facto or retroactive law, nor any law impairing the obligation of
contracts shall be passed, nor vested rights be divested, unless for pur-,
poses of public utility and for adequate compensation made," has, how-
ever, been held to be simply a prohibition against "retroactive laws which
impair the obligation of contracts or which divest vested rights, unless for
purposes of public utility and for adequate compensation made." City of
Xew Orleans v. New Orleans etc. R. R. Co., 35 La. Ann. 682. The Consti-
tution of Colorado provides in section 11 of the Bill of Rights, "that no
ex post facto law, nor law impairing, the obligation of contracts, or retro-
spective in its operation • • . shall be passed." Denver etc. R. R. Co. v.
3 Dall. 386-401 NOTES ON U. S. REPORTS. • 70
Woodward, 4 Colo. 162. Section 20 of article I of the Constitution of
Tennessee is: "That no retrospective law, or law impairing the obligation
of contracts shall be made." Hope v. Johnson, 2 Yerg. 123. The Constitu-
tion of Ohio, art. II, § 28, thus provides against the passage of retrospec-
tive laws: ''The general assembly shall have no power to pass retroactive
laws, or laws impairing the obligation of contracts, provided, however, that
the general assembly may, by general laws, authorize courts to carry into
effect the manifest intention of parties and officers, by curing omissions,
defects and errors in instruments and proceedings, arising out of their want
of conformity with the laws of this State, and upon such terms as shall be
just and equitable.'' State v. Richland Tp., 20 Ohio St. 369.
JnrlsdlctionB where no express prohibition against retrospective laws im-
pairing vested rights.
Aside from these few States wherein retrospective laws are prohibited,
eo nomine, there are elsewhere recognized certain limitations upon the
power of the legislature to affect past acts and transactions by retroactive
statute. The prohibition against laws impairing the obligation of con-
tracts effectually prohibits one very large species of retroactive legislation,
although the citations of Calder v. Bull do not require a consideration of
them here. But when legislation of this sort seeks to divest rights which
have vested under the existing law, otherwise than by contract, it has been
considered a grave question whether any constitutional limitation is or is
not infringed. The reprehensible character of such legislation has often
led the courts, as has been seen, to refuse to give a retrospective construc-
tion to a statute unless its language imperatively so requires. As to pro-
visions in* the Constitution of the United States, it is well settled that prior
to the adoption of the Fourteenth Amendment,- legislation of this sort was
not thereby prohibited. In Freeland v. Williams, 131 U. S. 405, 420, 33
L. Ed. 193, 199, 9 Sup. Ct. 763, 768, Justice Miller observed that "prior to
the Fourteenth Amendment the power to provide such remedies, although
they may have interfered with . . . vested rights, seems to have been
fully conceded." Other cases in which such legislation has been declared
not repugnant to any Federal limitation are: Proprietors etc. v. Laboree,
2 Greenl. 289, 11 Am. Dec. 90 ; Burch v. Newbury, 10 N. Y. 390, 391, 394 ;
Denver etc. R. R. Co. v. Woodward, 4 Colo. 167; New Orleans v. New
Orleans etc. R. R. Co., 35 La. Ann. 682 ; Grim v. Weissenberg School Dist.,
57 Pa. St. 435, 98 Am. Dec. 239 ; Henderson etc. R. R. Co. v. Dickerson, 17
B. Mon. 173, 177, 66 Am. Dec. 149, 150 ; Bender v. Crawford, 33 Tex. 745,
751, 7 Am. Rep. 272; Coles v. Madison Co., Breese, 156, 12 Am. Dec. 163;
'Drehman v. Stifel, 41 Mo. 204, 97 Am. Dec. 273. In one case the fifth
amendment securing property against deprivation by Congress has been
relied upon in holding void an act of Congress validating certain payments
to a provost marshal during the war. Clark v. Mitchell, 64 Mo. 574, re-
versed in Mitchell v. Clark, 110 U. S. 633, 28 L. Ed. 279, 4 Sup. Ct. 170, on
other grounds. But since the adoption of the Fourteenth Amendment this
proposition no longer holds true. Freeland v. Williams, 131 U. S. 420, 33
L. Ed. 199, 9 Sup. Ct. 768. This ataendment prohibits a deprivation of
71 C ALDER V. BULL. 3 DaU. 386-401
property without due process of law, a constitutional limitation which is
to be found in the organic law of all the States. And this limitation has
been invoked against the validity of retrospective laws divesting vested
rights; and the weight of authority declares such legislation repugnant
upon this ground. Proprietors etc. v. Laboree, 2 Greenl. 289, 11 Am. Dec.
90; Andrews v. Russell, 7 Blackf. 475; Caperton v. Martin, 4 W. Va. 150,
6 Am. Rep. 279 ; Dockeiy v. McDowell, 40 Ala. 481 ; Wilder v. Lumpkin,
4 Ga. 214, 215, 218; Forster v. Forster, 129 Mass. 566; Aldridge v. Tus-
cimibia etc. R. R., 2 Stew. & P. 207, 23 Am. Dec. 312 ; Westervelt v. Gregg,
12 N. Y. 202 ; Baugher v. Nelson, 9 Gill, 305, 307, 52 Am. Dec. 698, 699 ;
Davis V. Ballard, 1 J. J. Marsh. 577, 579. But see Wilson v. Hardesty, 1
Md. Ch. 66, 68; Henderson etc. R. R. v. Dickinson, 17 B. Mon. 177, 66 Anu
Dec. 150 ; Holman v. Bank of Norfolk, 12 Ala. 417 ; Gillespie v. Allison, 115
N. C. 548, 20 S. E. 629. Laws of this sort have also been declared to be
invalid by the fundamental principles of the social compact (Wilder v.
Lumpkin, 4 Ga. 214, 215, 218) ; or, because an exercise of judicial power,
as they may sometimes be (Forster v. Forster, 129 Mass. 566) ; or, simply
ipso facto, without an attempt to assign coiistitutional objection. Brinton
V. Seevers, 12 Iowa, 389, 393. In some of the courts views directly con-
flicting have been advanced, and laws impairing vested rights declared
void at one time and valid at another. For instance, the Supreme Court
of Alabama declared such legislation prohibited by the Bill of Rights of
that State (Aldridge v. Tuscumbia etc. R. R. Co., 2 Stew. & P. 199, 207,
23 Am. Dec. 312) ; another view of the same court was that retrospective
laws "although they operate on vested civil rights, provided they do not
impair the obligation of contracts," are not prohibited (Holman v. Bank
of Norfolk, 12 Ala. 417) ; but it was declared that if operating to divest
rights of a particular person and not of others of the same class generally,
that such legislation is invalid. A later case declared laws divesting a citi-
zen of a lawfully acquired right or title to property to be void by the com-
mon law. Dockery v. McDowell, 40 Ala. 481. Compare Davis v. Ballard,
1 J. J. Marsh. 577, 579, with Henderson etc. R. R. Co. v. Dickerson, 17
B. Mon. 177, 66 Am. Dec. 149, 150; Baugher v. Nelson, 9 Gill, 305, 307, 52
Am. Dec. 698, 699, with Wilson v. Hardesty, 1 Md. Ch. 68. An early Maine
ease illustrates this limitation upon the power to enact retrospective laws.
By a rule of the common law long recognized in that State, one having an
adverse possession^ of land for thirty years disseised the true owner of the
entire tract, if his deed were on record; but only so much as he had in
visible possession, if no deed were recorded. This rule was changed by a ,
statute declaring that the same legal consequences against a demandant were
to be attached to a possession without deed recorded, as to a possession
under deed registered in the public register, i. e., the true owner might be
disseised of the entire tract by a visible possession without deed on record of
even part of it. The tenants in this case had had in possession for thirty
years one-half of the premises in question ; but claimed the entire tract by
virtue of this statute, then recently passed. This act, by its terms intended
to apply retrospectively, was declared void in its retroactive effect because
operating to divest vested rights of property, which was prohibited by the
3 Dall. 386-401 NOTES ON U. S. REPORTS. 72
State Constitution. Proprietors etc. v. Laboree, 2 Greenl. 275, 288, 11 Am.
Dec. 89.
Corporate taxation as affected by contract clause in Federal Constitu-
tion. Note, 60 L. B. A. 48.
Vested right means the power to do certain actions or possess certain
things according to the law of the land.
Approved in Lohrstrofer v. Lohrstrofer, 140 Mich. 560, 104 N. W. 146,
holding void Comp. Laws 1897, § 652, amending law requiring pajjment of
register's fees on appeal, so as to provide for reinstatement of appeals dis-
missed for nonpayment, in so far as applicable to appeals dismissed prior
to passage of act; Gladner v. Sydnor, 172 Mo. 326, 328, 95 Am. St. Rep.
520, 524, 72 S. W. 556, 55/, holding homestead act of 1895 void ; Graham
V. Great Falls etc. Co., 30 Mont. 400, 76 Pac. 810, preferential interest given
successful contestant under 21 Stat. 140, not vested in property right. In
other cases the syllabus point has been cited as follows: De Cordova v,
Galveston, 4 Tex. 480; Hamilton v. Flynn, 21 Tex. 716; Grigsby v. Peak,
57 Tex. 147; Mellinger v. City of Houston, 68 Tex. 48, 3 S. W. 249; Beebe
V. State, 6 Ind. 501, 524, 530 ; White v. Commissioners, 13 Or. 322, 54 Am.
Rep. 844, 10 Pac. 485; Munn v. People, 69 111. 95. "When vested rights
are spoken of by the courts as being guarded against legislative inter-
ference," said Martin, J., in Baugher v. Nelson, 9 Gill, 299, "they mean
those rights to which a party may adhere, and upon which he may insist,
without violating any principles of sound morality. ... In the nature of
things there can be no vested right to violate a moral duty, or to resist
the performance of a moral obligation." Or, as it is elsewhere stated,
"Courts do not regard rights as vested contrary to the justice and equity
of the case." State v. Newark, 27 N. J. L. 197, See, also, Foster v. Essex
Bank, 16 Mass. 245, 273; Freeland v. Williams, 131 U. S. 420, S3 L. Ed.
199. This principle is obviously akin to the rule which declares the true
purpose of retrospective laws to be remedial and beneficial; and illustra-
tions there given of the operation of that rule apply also in this. Further
illustrations are: A statute, removing a disability which prevented a party
defeated in the lower court from appealing to the higher (Henderson etc.
R. R. Co. V. Dickerson, 17 B. Mon. 177, 66 Am. Dec. 149, 150) ; a statute
granting a rehearing in the matter of the probate of a will (Calder v. Bull,
3 Dall. 386), although Justice Chase held that the statute affected a right
to recover property merely, and not a vested right. Upon this principle
also may be justified retrospective statutes affirming jurisdiction of certain
cases pending on appeal, and as to which there was vested in the defend-
ants a valid defense against such proceedings. Scott v. Smart, 1 Mich. 302,
307 ; Simmons v. Hanover, 23 Pick. 193. Although the rule is otherwise if
the irregularity has operated to the substantial injury of either party in
respect to his constitutional right to a fair trial. Lane v. Nelson, 79 Pa.
St. 410.
Vested right in defense of limitations. Note, 45 L. B. A. 614.
73 CALDER v. BULL. 3 Dall. 386-401
lAwn saving time from tbe ttatate of Umltatloiui are somotinieB proper
and necessazy.
Such laws when retrospective have been held not to divest vested rights.
Caperton v. Martin, 4 W. Va. 160, 6 Am. Rep. 279 ; Bender v. Crawford, 33
Tex. 751, 7 Am. Rep. 272 ; Davis v. Ballard, 1 J. J. Marsh. 577, 579. But
it has been declared that retrospective laws, extc^nding the time of the stat-
ute of limitations and reviving a right of action previously lapsed, are pro-
hibited as divesting vested rights, although upon this point the authorities
are not fully agreed. Davis v. Minor, 1 How. (Miss.) 193, 28 Am. Dec.
831 ; Woart v. Winnick, 3 N. H. 481, 14 Am. Dec. 391 ; Briggs v. Hubbard,
19 Vt. 86; Conch v. McKee, 6 Ark. 495; Wheeler's Appeal, 45 Conn. 318,
320. But if by the operation of the existing statute of limitations, no right
of defense has accrued, it is competent for the legislature to shorten or
extend the time within which an action may be brought, provided it be not
made so short that a party is practically deprived of his right of action.
Griffin v. McKenzie, 7 Ga. 166, 50 Am. Dec. 391.
Courta may declare a statute void, but it is presumed conatltatioiial and
will be declared void only in very clear caae.
Cited to point that courts have power to adjudge nneonstitutionality of
statute, in the following cases: Hnbley v. White, 2 Yeates, 133, 147; Santo
V. State, 2 Iowa, 208, 63 ^jsl Dec. 506; State v. County Judge, 2 Iowa, 283;
Stewart v. Board of Supervisors, 30 Iowa, 15, 17, 1 Am. Rep. 242, 244;
Beall V. Beall, 8 Ga. 218 ; Bank of St. Mary v. State, 12 Ga. 498 ; Stockton
V. Montgomery, Dall. (Tex.) 485; Lewis v. Woodfold, 2 Baxt. 47; Lonas v.
State, 3 Heisk. 30L Cited to point that repugnancy of statute must bo
dear : Hubley v. White, 2 Yeates, 133, 147 ; State v. Fry, 4 Mo. 135 ; Burton
V. State, 3 Gill (Md.), 1, 6; Stow v. Parks, 2 Finn. (Wis.) 129 (1 Chand.
60, 68) ; Santo v. State, 2 Iowa, 208, 63 Am. Dec. 506; State v. County
Judge, 2 Iowa, 283; Stewart v. Board of Supervisors, 30 Iowa, 15, 17,
1 Am. Rep. 248, 244; Carey v. Giles, 9 Ga. 259; Sacerdotte v. Duralde, 1
La. (O. S.) 482; Simpson v. City Sav. Bank, 56 N. H. 466, 469, 22 Am. Rep.
408; Mayor etc. v. State, 15 Md. 389; Maxent v. Maxent, 1 La. (O. S.) 453;
United States v. Williams, 28 Fed. Cas. 617.
Approved in Ladd v. Holmes, 40 Or. 182, 91 Am. St. Rep. 470, 66 Pac.
720, construing primary election law of 1901 ; dissenting opinion in Atchison
etc. E. Co. V. Matthews, 174 U. S. 114, 43 L. Ed. 916, 19 Sup. Ct. 609, 613,
majority upholding Kansas act allowing recovery of attorneys' fees in
actions against railroads for damages by fire ; dissenting opinion in Evans-
Snider-Buel Co. v. MTadden, 105 Fed. 304, 305, 68 L. R. A. 900, majority
upholding 29 Stat. 510, c. 136, relative to validation of mortgages in Indian
Territory.
Statutes infringing fundamental principles of social compact are void
altiiou^ not repugnant to any specific constitutional limitations.
Reaffirmed in the following cases: Grifiin v. Mixon, 38 Miss. 434; People
V. Collins, 3 Mich. 395 ; Wilder v. Chicago etc. R. R. Co., 70 Mich. 385, 38
N. W. 290 ; State v. Flanders, 24 La. Ann. 71 ; Wilder v. Lumpkin, 4 Ga,
214, 215, 218; Goshen v. Stonington, 4 Conn. 209, 224, 226, 10 Am. Dec
3 DaU. 386-401 NOTES ON U. S. REPORTS. 74
128, 130; In re Dorsey, 7 Port. 375, 417; McVeigh v. United States, 11
Wall. 267, 20 L. Ed. 81; Legal Tender Cases, 12 Wall. 582, 670, 20 L. Ed.
322, 350 ; Osborn v. Nicholson, 13 Wall. 662, 20 L. Ed. 695 ; Gunn v. Barry,
15 Wall. 623, 21 L. Ed. 215; Sinking Fund Cases, 99 U. S. 765, 25 L. Ed.
518; Legal Tender Case, 110 U. S. 469, 28 L. Ed. 221. 4 Sup. Ct. 141;
City of Janesville v. Carpenter, 77 Wis. 303, 20 Am. St. Rep. 184, 46 N. W.
132; Prince William School Board v. Stuart, 80 Va. 77; Peerce v. Carska-
don, 4 W. Va. 248, 6 Am. Rep. 292; Gage v. Neblett, 57 Tex. 375; Kelly
V. Pittsburgh, 85 Pa. St. 182, 27 Am. Rep. 639; Clark v. Mitchell, 64 Mo.
574, 582; Hepburn's Case, 3 Bland Ch. 96; Durkee v. City of Jantsville,
28 Wis. 468, 9 Am. Rep. 503; Spring Valley W. W. v. Bartlett, 16 Fed.
634, 635, 8 Sawy. 580; Smith v. Lake etc. Ry., 72 N. W. 336. And cited
in the following cases, although not altogether approved ; State v. Allmond,
2 Houst. (Del.) 639; Holt v. Moore, 4 Ala. 394, 396; People v. Gallagher,
4 Mich. 248; Simmons v* Hanover, 23 Pick. 193; Baugher v. Nelson, 9
Gill, 305, 307, 52 Am. Dec. 698, 699 ; Commonwealth vl McCloskey, 2 Rawle,
373 ; Wynehamer v. People, 13 N. Y. 390, 431 ; Ingram v. Colgan, 106 Cal.
123, 46 Am. St. Rep. 229, 38 Pac. 316. Justice Iredell's emphatic denial of
the existence of any such power is cited with approval in the following
cases: People v. Gallagher, 4 Mich. 248; Maynard v. Board of Canvassers,
84 Mich. 256, 47 N. W. 764; Campbell's Case, 2 Bland Ch. 209, 232, 237,
20 Am. Dec. 873, 878; Ex parte Law, 35 Ga. 285, 297, 15 Fed. Cas. 8, 12;
Macon etc. R. R. Co. v. Little, 45 Ga. 388 ; State v. Allmond, 2 Houst. 639 ;
Bridgeport v. Housatonic R. R. Co., 16 Conn. 496, 497; Billings v. Hall,
7 Cal. 23; In re Dorsey, 7 Port. 375, 417; Sharpless v. Mayor, 21 Pa. St.
163, 59 Am. Dec. 767; Wynehamer v. People, 13 N. Y. 378, 390, 431; Bell
V. Gough, 23 N. J. L. 624, 695; Williams v. Camack, 27 Miss. 219, 61
Am. Dec. 514; Gibson v. Mason, 5 Nev. 297; Blair v. Ridgely, 41 Mo. 171,
97 Am. Dec. 252; Dorman v. State, 34 Ala. 232, 233; Albee v. May, 2 Paine,
79, Fed. Cas. 134 ; Loan Assn. v. Topeka, 20 Wall. 669, 22 L. Ed. 468. And
quoted, although not altogether approved, in Simmons v. Hanover, 23 Pick.
193.
Approved in Eberhart v. United States, 204 Fed. 892, 123 C. C. A. 180,
holding void Federal statute extending time for bringing suit against
surety of contractor with government beyond time stipulated in bond;
Stephens v. Cherokee Nation, 174 U. S. 478, 48 L. Ed. 1053, 19 Sup. Ct.
722, upholding act of July 1, 1898, giving Supreme Court jurisdiction of
appeals from Federal court in Indian Territory ; National Union v. SheiTy,
180 Ala. 633, 61 South. 946, but holding benefit certificate issued when law
provided that misrepresentations would not avoid policy, unless fraudulent
or material, unaffected by subsequent change in law ; Town of New Decatur
V. American Tel. & Tel. Co., 176 Ala. 508, Ann. Cas. 1915A, 875, 58 vSouth.
618, holding void ordinance depriving telephone company of franchise,
though State Constitution provided that franchises should be revocable;
Miles Planing Co. v. Carlisle, 6 App. D. C. 148, 149, holding void provisions
of revenue act granting bounty to sugar producers; 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, 50 S. E. 509, upholding Laws 1903, p. 749, c. 434,
75 CALDER v. BULL. 3 Dall. 386-401
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; United States v. United States Fidelity &
Guaranty Co., 80 Vt. 96, 66 Atl. 814, act permitting suit in Federal court
on bond of contractor with govemmeni held not retrospective; dissenting
opinion in McLendon v. State, 179 Ala. 79, Ann. Gas. 19150, 691, 60 South.
400, majority upholding law imposing occupation tax but exempting ex-
Confederate soldiers therefrom ; dissenting opinion in Whaley v. State, 168
Ala. 169, SO L. R. A. (N. S.) 499, 52 South. 946, majority upholding statute
authorizing street railroad companies to make reasonable rules concerning
transfers; dissenting opinion in Crane v. Waldron, 133 Mich. 84, 94 N. W.
597, majority upholding act No. 99 of 1897, relating to proof in suits in aid
of execution; dissenting opinion in State v. Chicagoi etc. R. Co., 239 Mo.
332, 143 S. W. 827, majority upholding law which required railroad com-
panies to operate at least one passenger train each day including Sunday;
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, relat-
ing to refunding bonds of Madison county is not mandatory; dissenting
opinion in Ex parte Townsend, 64 Tex. Cr. 395, 144 S. W. 652, majority
upholding law imposing prohibition tax upon sale of nonintoxicating malt
liquors.
It is asserted that in no instance have those courts afiEbrming the existence
of the right to declare a statute void because violating the first principles
of the social compact ever based such avoidance upon this ground and no
other. State v. Allmond, 2 Houst. 639. But in Wilder v. Railway Co..
70 Mich. 385, 38 N. W. 290, a statute permitting a successful plaintiff in
an action against a railway company for killing cattle to add twenty-five
dollars attorney's fee as x>ft^ of costs was held void because ''repugnant
to oar form of government, and out of harmony with the genius of our
free institutions." See Denver etc. Ry. v. Outcalt, 2 Colo. App. 403, 407,
31 Pac. 181, to the same effect. A similar holding, however, in South etc.
R. R. Co. V. Morris, 65 Ala. 193, was based upon repugnancy to the provi-
sion of the national Constitution which secures to all citizens the e<iual
protection of the laws. See contra, Wortman v. Kleinschmidt, 12 Mont.
331, 352, 30 Pac. 285, 293. On the other hand, courts have declined to
declare a law void on this ground (State v. Flanders, 24 La. Ann. 71;
Williams v. Camack, 27 Miss. 209, 219, 61 Am. Dec. 514) ; and when holdins;
void a statute allied to be in conflict with fundamental principles, have
chosen rather to base their disaffirmance upon a liberal construction of some
specific constitutional restriction. Gunn v. Barry, 15 Wall. 623, 21 K Ed.
215; Proprietors etc. v. Laboree, 2 Greenl. 289, 11 Am. Dec. 90; Forster v.
Forster, 129 Mass. 566 ; Commonwealth v. McCloskey, 2 Rawle, 373.
Distinguished in Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 68, 54
L. Ed. 935, 30 Sup. Ct. 663, upholding statute penalizing casual a^d invol-
untary trespass in cutting timber upon state lands.
The national Constitution does not prohibit exercise of Judicial functions
liy State legislatures, and a Connecticut statute granting a rehearing in tlie
3 Dall. 386-401 NOTES ON U. S. REPORTS. 76
matter of a iMrobata decree iofringes no Federal Umitation. It ieeow tl&at
under the CaDBtitation of that State the legislature haa always had Judicial
poweiB.
The citations show that in a number of cases it has been sought to jus-
tify legislation involving the exercise of judicial powers upon the authority
of the principal case; but the courts, in determining its value as an au-
thority, have generally not failed to recognize the anomalous nature of the
power which the Connecticut assembly exercised at that time. Merrill v.
Sherburne, 1 N. H. 209, 213, 8 Am. Dec. 55, 61, 64 ; Dash v. Van Kleeck, 7
Johns. 499, 5 Am. Dec. 305 ; Bates v. Kimball, 2 D. Chip. 86 ; Lewis v. Webb,
3 Me. 326, 334 ; State v. Huf ty, 11 La. Ann. 316, 318 ; Griffin v. Cunningham,
20 Gratt. 54 ; Bradford v. Shine, 13 Fla. 393, ^, 7 Am. Rep. 248 ; Trustees
etc. V. Bailey, 10 Fla. 249, 254; Starr v. Pease, 8 Conn. 547; Higbee v.
Higbee, 4 Utah, 30, 5 Pac. 696 ; Clark v. Mitchell, 64 Mo. 574, 582 ; Magill
v.. Lyman, 6 Conn. 67; Burch v. Newbury, 10 N. Y. 390, 391, 394, 60 Am. St.
Rep. 6S4. In other cases, however, this distinction is not so clearly recog-
nized. Rhinehart v. Schuyler, 2 Gilm. 510 ; Edwards v. Pope, 3 Scam. 473 ;
Bonner v. Martin, 40 Ga. 505; Chattaroi Ry. Co. v. Kinner, 81 Ky. 224.
These are fol* the most part dases of statutes of a judicial character, which
were equitable knd remedial in their operation; as, a statute permitting
the introduction of evidence of tender of payment in an action on a note,
and ordering certain prior judgments to be vacated. Bonner v. Martin,
40 Ga. 505, To a similar effect is Bradee v. Brownfield, 2 Watts. & S. 285.
Statutes ordering a new trial in certain cases where there existed a good
and meritorious defense also came under this category. Ex parte Bibb, 44
Ala. 152 ; Ex parte Norton, 44 Ala. 185.
The general rule under the various Constitutions, undoubtedly is, that
a legislature cannot enact laws that are in the nature of an exercise of
judicial functions. A statute ordering a rehearing or permitting an appeal
in other than the ordinary manner is void on this ground. Bates v. Kim-
ball, 2 D. Chip. 86; Griffin v. Cunningham, 20 Gratt. 54; Trustees etc. v.
Bailey, 10 Fla. 249, 254 ; Lewis v. Webb, 3 Me. 334. See, also, Burch v.
Newbury, 10 N. Y. 374, 390, 391, 394. Similarly an act, confirming the
title of land in B, which operates to divest A's lawful title (Robinson v.
Barfield, 2 Murph. (N. C.) 422) ; although such an act is generally avoided
on other grounds. Brinton v. Seevers, 12 Iowa, 389. Legislative decrees
of divorce have also been declared void as an exercise of judicial power.
Higbee v. Higbee, 4 Utah, 30, 5 Pac. 696; State v. Fry, 4 Mo. 135, 144, 177.
The syllabus point has also been approved in the following recent cases :
Wallace v. Adams, 204 U. S. 422, 51 L. Ed. 651, 27 Sup. Ct. 363, upholding
Federal statute empowering Choctaw and Chickasaw citizenship court to
review final judgments in citizenship eases ; Ex parte Anderson, 46 Tex. Cr.
399, 81 S. W. 987, city court has no jurisdiction to try accused for violation
of state statute ; State v, Kreutzberg, 114 Wis. 539, 91 Am. St. Rep. 941, 90
N. W. 1102, holding void Rev. Stats. 1898, § 4466b, as amended by Laws
1899, c. 332, prohibiting employers from discharging nonunion workmen.
LeglBaatiixe may take private property for pablic uae upon making coio-
pensatlon.
77 CALDER v. BULL. 3 DalL 386-401
Reaffirmed in Robinson v. Barfield, 2 Murph. (N. C.) 390, 422; Den ex
dem. Berdam v. Van Riper, 16 N. J. L. 10, 14 ; Seott v. Smart, 1 Mich. 302,
307; New Orleans etc. R. R. Co. v. New Orleans, 26 La. Ann. 521; Beard
V. Smith, 6 T. B. Mon. 499, 500.
State legislatures retain powers delegated to them and not taken away by
Federal Oonstitntion. Federal government possesses only powers expressly
delegated.
Cited in People v. Naglee, 1 Cal. 235, 52 Am. Dec. 315, holding valid
State law imposing license fee on foreign miners; Hawkins v. Filkins, 24
Ark. 300, discussing the limitations of Federal power; Passenger Cases, 7
How, 555, 12 L. Ed. 816, reviewing authorities upon State and Federal
powers; United States v. New Bedford Br., 1 Wood. & M. 427, Fed. Cas.
15,867, in general review of cases on the subject; Dunne v. People, 94 111.
129, 84 Am. Rep. 219, examining the cases on this subject in upholding
State militia act; Harlan v. People, 1 Doug. (Mich.) 210, applying the
general principle in holding that States have concurrent power with the
Federal government in punishing counterfeiting; Campbell's Case, 2 Bland
Ch. 232, 237, 20 Am. Dec 373, 378, discussing the doctrine generally.
Implied restrictions on power of legislatures. Note, 17 L. B. A. 840.
Snpreme Court has no authority to adjudge repugnancy of State statute to
State Constltation. #
Cited to this point in dissenting opinions in State v. Hufty, 11 La. Ann.
316, arguing that act removing public officer was invalid; and in Williams
V. Bank of Michigan, 7 Wend. 553, holding foreign corporation was to be
deemed legally constituted.
Legislative power to annex territory to municipalities. Note, 27
L. B. A. 746.
Federal Constitution does not affect Juridical acts.
Approved in Frank v. Mangum, 237 U. S. 344, 69 L. Ed. 987, 35 Sup. Ct.
582, refusing to review State decision that certain objection should have
been raised on motion for new trial; Ross v. Oregon, 227 U. S. 161, Ann.
Cas. 1914C, 224, 57 L. Ed. 463, 33 Sup. Ct. 220, upholding judgment of
State court which construed constitutional amendment requiring prosecu-
tion by indictment as prospective only.
Miscellaneous. Cited in Weems v. United States, 217 U. S. 373, 19
Ann. Cas. 705, 54 L. Ed. 801, 30 Sup. Ct. 544, treatment which doctrine of
principal case has received exemplifies fact that constitutional construction
is growing thing; Moulton v. Scully, 111 Me. 471, 89 Atl. 963, to point
that when statute is clear on its face there is no room for construction;
United States v. Arredondo, 6 Pet. 715, 8 L. Ed. 556, to point that custom
and usage are sources of some of our law; Jackson v. Magnolia, 20 How.
334, 15 L. Ed. 926, upon question of admiralty jurisdiction; State v.
Wright43on, 56 N. J. L. 209, 28 Atl. 65 , United States v. Gilbert, 2 Sumn.
101, Fed. Cas. 15,204, and United States v. Harris, 1 Abb. (U. S.) 115,
Fed. Cas. 15,312, as illustration of a legal term so concise that its meaning
3 Dall. 401-408 NOTES ON U. S. REPORTS. 78
can only be determined from usage; State v. Dews, Charlt. (Ga.) 429,
to point that the contract obligation clause applies only td private eon-
tracts; Cohen v. Wright, 22 Cal. 319, to the point that mere statutory
privileges are liable to divestiture by the legislature; Magill v. Lyman,
6 Conn. 67, remarking that decision in Calder v. Bull^was not part of the
probate record of Connecticut; Hicks v. Hotchkiss, 7 Johns. Ch. 310,
11 Am. Dec. 480, arguing in support of bankrupt law; North etc. Min. Co.
V. United States, 8^ Fed. 679, not in point; People v. Turner, 74 N. W. 619,
on waiver of objection in criminal case; United States v. William, 28 Fed.
Cas. 618, as to author of Federalist; Magill v. Brown, 16 Fed. Cas. 420, to
point that legislative usage is evidence of supreme law, where unwritten.
3 DaU. 401-408, II.. Ed. 655, WILSON ▼. DANIEL.
Writ of error lies, although judgment is imperfect and informal, where it
is such that execution could issue on it.
Cited in Brewer v. Ware, 18 N. J. L. 371, holding the writ will not lie
to bring up proceedings on trial of feigned issue; Harris v. Hopkson, 5
Tex. 533, where Supreme Court received affidavits to prove appeal bond
not filed within time, but fraudulently antedated.
Right to appeal from void judgment, decree, or order. Note, 33
L. B. A. 734.
Jurisdiction on appeal, based upon amount tn dispute, is determined by
amount demanded by plalntiif.
Approved in Hampton Stave Co. v. Gardner, 154 Fed. 806, 83 C. C. A.
521, Woodling v. Romero, 16 N. M. 57, 58, 113 Pac. 622, 623, Ray v. South-
em Ry. Co., 77 S. C. 107, 57 S. E. 637, and Battle v. Atkinson, 115 Fed.
385, all following rule; Lowenthal v. Georgia Coast & P. R. Co., 233 Fed.
1015, upholding jurisdiction over suit by holder of bonds to value of six
thousand dollars to foreclose mortgage to secure whole issue, though unpaid
interest installment on complainant's bonds did not amount to three thou-
sand dollars; Maryland Casualty Co. v. Price, 231 Fed. 403, and Ohman v.
City of New York, 168 Fed. 960, both holding where allegations showed
only nominal damage, demand for larger sum did not give jurisdiction;
Thoinpson v. Southern R. Co., 116 Fed. 891, refusing to remand for want
of jurisdiction though court certain that demand was below jurisdictional
amount; Interstate Bldg. etc. Loan Assn. v. Edgefield Hotel, 109 Fed. 693,
holding valid defense apparent on face of bill reducing amount of recovery
does not affect jurisdiction; Kunkel v. Brown, 99 Fed. 595, holding amount
in dispute unaffected by honest mistake; Ung Lung Chung v. Holmes, 98
Fed. 325, holding jurisdiction not ousted by failure of evidence of amount
in dispute; dissenting opinion in Levinski v. Middlesex Bank. Co., 92 Fed.
464, majority holding demurrer to part of items does not affect Federal
jurisdiction on removal; Mills v. Couchman, 4 J. J. Marsh. 242, holding
that in actions ex contractu the amount in controversy is the debt or dam-
ages sued for; Hayward v. Nordberg Mfg. Co., 85 Fed. 6, holding juris-
diction cannot be defeated under this act if the amount declared might be
79 WILSON V. DANIEL. 3 Dall. $01-408
recovered, unless the amount stated was colorable; Odell v. Culbert, 9
Watts & S. 68, 42 Am. Dec. 319, holding that if the sum demanded is re-
duced below the required amount by setoffs, the court nevertheless has
jurisdiction; Swigley v. Dickson, 2 Tex. 195, where suit was brought on »
note, the amount due on which had been reduced by payment to less thai/
one hundred dollars; Kline v. Wood, 9 Serg. & R. 299, holding that the
District Court has no jurisdiction where the value put in demand by the
plaintiff's declaration is under one hundred dollars; Sweeney, Ex parte, 126
Ind. 590, 27 N. E. 129, where the question was discussed as to the effect
of the amount of the recovery on the jurisdiction; Murphy v. Howard,
Hempst. 206, Fed. Cas. 9949a, an action of assumpsit for the value «)| a
keel boat ; Vance v. W. A. Vandercook Co., 170 U. S. 472, 42 L. Ed. 118,
18 Sup. Ct. 647, where, from the case stated, a judgment could not be ren-
dered for a sum sufficient to give jurisdiction, although the damages were
laid at a larger sum; Spear v. Place, 11 How. 526, 13 L. Ed. 798, where
a libel was filed against a schooner, her tackle and cargo, on a claim
for salvage; O'Reilly v. Murdock, 1 Gill, 39, holding that, in eases of tort,
sounding in damages, the amount put in demand is the test of jurisdiction ;
Herbert v. Rainey, 54 Fed. 251, a bill in equity to enjoin execution and
maintenance of a nuisance; Hoit v. Malony, 2 N. H. 324, an action of
trover for household goods ; Hancock v. Barton, 1 Serg. & R. 269, an action
of trespass vi et armis for an assault and battery; Singleton v. Madison,
1 Bibb (Ky.), 345, and Strong v. Daniels, 3 Mich. 472, both actions of
trespass on the case; Burr v. Bayne, 10 Watts. 300, an action of trespass
de bonis asportatis ; Norton v. Hart, 1 Ohio, 155, holding that the plaintiff,
in actions for trespass upon real property, where«»the damages laid exceed
one hundred dollars, is entitled to costs ; Barry ▼. Edmunds, 116 U. S. 560,
29 L. Ed. 782, 6 Sup. Ct. 50p, where exemplary damages beyond the sum
necessary to give jurisdiction were claimed in an action for malicious
trespass.
Denied in Gordon v. Ogden, 3 Pet. 34, 7 L. Ed. 593, holding that the
jurisdiction depends upon the sum in dispute as it stands upon the writ
of error; said to be overruled by Gordon v. Ogden in Hilton v. Dickinson,
108 U. S. 169, 172, 174, 175, 27 L. Ed. 689, 690, 691, 2 Sup. Ct. 426, 428,
430, laying down the rule as to cases in which the Supreme Court had
jurisdiction; Decker v. Williams, 73 Fed. 310, holding the District Court
of (Alaska had no jurisdiction over appeals from United States commis-
sioners unless the amount involved is two hundred dollars; Gordon v. Ross.
2 Cal. 157, holding that though the plaintiff recover less than two hundred
dollars, the defendant may appeal if the costs added to the judgment
exceed two hundred dollars; Tipton v. Chambers, 1 Met. (Ky.) 568, hold-
ing the judgment to be the test of appellate jurisdiction; Quimby v. Hop-
ping, 52 N. J. L. 118, 19 Atl. 123, the court saying that the act of New
Jersey differs from the Federal act.
Distinguished in Holden v. Utah etc. Co., 82 Fed. 210, holding rule
changed by act of March 3, 1875 ; Levinski v. Middlesex Bank. Co., 92 Fed.
458, holding demurrer to part of items does not affect Federal jurisdiction
on removaL
3 Dall. 409-415 NOTES ON U. S. REPORTS. 80
Modified in Greene Co. Bank v. Teasdale Comm. Co., 112 Fed. 803,
holding in action for recovery of money only amount of recovery deter-
mines jurisdiction.
Miscellaneous. Cited erroneously in Dale v. The Governor, 3 Stew. 418.
3 Dall. 409-410, 1 I.. Ed. 668, DEWHUB9T v. G0U1.THABD.
Snpreme Court will not take cognizance of any suit or controversy which
was not hronght hef ore it hy regular process of law. ^
Cited in Hoover v. Hanna, 3 Blackf. 48, where suit was commenced by
appearance of parties and their filing an agreement as to facts; Caulk v.
Fox, 13 Fla. 147, where it was apparent that only portion of proceedings
were embraced in what was certified.
Distinguished in Mitchell v. McMillan, 3 Mart. (0. S.) 684, 6 Am. Dec.
694, where effect of foreign discharge was considered, court saying point
was not discussed in the principal case, as it went off on another ground.
S DaU. 411-415, 1 L. Ed. 658, TOWLEB v. UNDSET.
When State Interested for purpose of Snpreme Court jurisdiction.
Approved in Coal & Coke Ry. Co. v. Conley, 67 W. Va. 142, 67 S. E..619,
holding State had not such interest in penalties imposed for excess car-
riage charges as to make it party to suit to declare void act imposing
charges; dissenting opinion in Hopkins v. Hebard, 194 Fed. 315, 114
C. C. A. 261, majority holding question not involved; Wisconsin v. Pelican
Ins. Co., 127 U. S. 288, 32 L. Ed. 242, 8 Sup. Ct. 1373, holding Supreme
Court did not have original jurisdiction of an action by State upon judg-
ment recovered by it, in one of its own courts, against a citizen ; dissenting
opinion in Poindexter v. Greenhow, 114 U. S. 296, 29 L. Ed. 195, 6 Sup. Ct.
917, where the question was as to whether a State had an interest ; McNutt
V. Bland, 2 How. 27, 11 L. Ed. 166» holding that a citizen of another State
has right to sue upon a sheriff's bond, and fact that the Governor and
party sued are citizens of the same State will not oust Circuit Court of
jurisdiction.
Distinguished in Governor of Georgia v. Madrazo, 1 Pet. 122, 7 L. Ed.
79, where court said that there was no case in which State had been sued
without making it party ; New Jersey v. New York, 5 Pet. 290, 8 L. Ed. 129,
the court saying that no doubt was entertained in the principal case of
the propriety of exercising original jurisdiction, had the State been a
party: State ex rel. Drake v. Doyle, 40 Wis. 206, where suit was prose-
cuted in Federal court against State officer, in his official capacity only,
to affect right of State only.
State may file bill to quiet title to boundaries of disputed territory, and
Supreme Court may appoint commissioners to ascertain and report these
boundaries^
Cited in Rhode Island v. Massachusetts, 12 Pet, 727, 744, 749, 9 L. Ed.
1261, 1268, 1670, where the court considered the question of jurisdiction
over boundaries between States; United States v. Texas, 143 U. S. 647, 36
f
f
81 CLARKE V. RUSSEL. 3 Dall. 415-426
L Ed. 298» 12 Sup. Ct. 494, holding Supreme Court had original jurisdic-
tion of a suit in equity, by United States against a State, to determine
boundary between that State and a territory ; Kennedy v. Elliott, 85 Fed.
835, holding suit to quiet title would not lie by an individual while bound-
ary of States, involving the particular property, was in controversy.
Certiorari never Issues from superior to Inferior court to remove cause
merely because of defect of Jurisdiction.
Approved in United States v. Dickinson, 213 U. S. 102, 53 L. Ed. 719,
29 Sup. Ct. 485, power to issue writ does not extend to give appeal in
eriminal case to correct mere error; Whitney v. Dick, 202 U. S. 138, 139,
50 L. Ed. 965, 966, 26 Sup. Ct. 584, certiorari cannot be issued by*Circuit
Court of Appeals to review conviction in lower Federal court; State etc.
Fourth Bank of Philadelphia etc. v. Johnson, 103 Wia. 625, 51 L. R. A.
83, 79 N. W. 1091, authorizing certiorari as ancillary to mandamus to
inferior court; People ex rel. v. Lindsay, 1 Idaho, 398, to point that it
is practice of Supreme Court of United States to issue writ of certiorari
only in aid of its appellate jurisdiction; Basnet v. City of Jacksonville,
18 Fla. 527, holding that if court has jurisdiction, and there is no irregu-
larity or illegality in the procedure, the certiorari must be quashed;
American Constr. Co. v. Jacksonville etc. Ry. Co., 148 U. S. 380, 37 L. Ed.
490, 13 Sup. Ct. 762, to point that the writ has never been issued to bring
up, from inferior court of United States, for trial, a case within exclusive
jurisdiction of higher court.
3 DalL 415-425, 1 L. Ed. 660, CTLABKE ▼. BTTSSEL.
Acknowledgment of Judge's seal, affixed to blU of exceptions, not neces-
sary where bill of ezcexytions tacked to record.
Cited in Brown v. Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 662, court
sayii^ bill of exceptions is not part of the record it is tacked to, and its
authority depends upon acknowledgment by judge of his seal; Withers
V. Gillespie, 7 Serg. & R. 15, bill of exceptions is part of record anf always
comes up with it; Agnew v. Campbell, 17 N. J. L. 296, holding bill of
exceptions must be drawn up and sealed at time of trial and cannot be
sealed afterward without consent.
Identification of letters in bill of exceptions.
Cited in Sams v. King, 18 Fla. 555, holding that where papers are
referred to in bill of exceptions, filed in Circuit Court, with sufficient cer-
tainty, insertion of papers in extenso in the record prepared for appellate
court is proper.
Evidence not stated, or referred to, In bill of exceptions, must be excluded
from discussion arising on bill of exceptions.
Cited in Downing v. Funk, 5 Rawle, 73, where counsel discussed prin-
ciples not presented; Barnard v. Vignaud, 10 Mart. (0. S.) 637, to point
that party objecting to introduction of witness must declare why he is
incompetent.
I— a
3 Dall. 415-426 NOTES ON U. S. REPORTS. 82
Bills of exclxuigB not accepted and protested for nonpayment are admis-
eible in an action for nonpayment wltlioiit evidence of nonacceptance.
Cited in Hodgsgn v. Turner, 1 Cr. C. C. 76, Fed. Caa. 6570, holding tliat
in an action against indorser of a foreign bill of exchange for nonpay-
ment, it is not necessary to produce protest for nonacceptance; Read v.
Adams, 6 Serg. & R. 358, 359, holding that in an action by indorsee of
foreign bill, protested for nonacceptance, it was not necessary to prave
notice of nonacceptance of bill.
Distinguished in United States v. Barker, 4 Wish. 469, Fed, Cas. 14,520,
holding that notice of refusal to accept or of protest for nonacceptance
must be given; Duncan v. Course, 1 Mill (S. C), 103, holding that protest
of foreign bill for nonacceptance is necessary.
Denied in Cullum v. Casey, 9 Port. 134, 83 Am. Dec. 804, holding weight
of authority is in fevor of necessity of protest where acceptance of foreign
bill is refused.
Protest as evidence. Note, 96 Am. Dec. 604.
Protect of negotiable instruments. Note, 48 Am. Dec. 228. i
Undertaking which is required to be in writing cannot be varied or added
to by parol. '
Approved in Pierce v. Cobb, 161 N. C. 307, 77 S. E. 352, excluding parol
evidence to avoid condition in note; Bradley v. Washington etc. P. Co.,
13 Pet. 101, 10 L. Ed. 79, holding parol evidence admissible to apply the
contract to its proper subject matter, where otherwise application could
not be made; Rogers v. Atkinson, 1 Ga. 20, holding that conversations and
stipulations anterior to or contemporaneous are merged; Ratliff v. Ellis,
2 Iowa, 63, 68 Am. Dec. 478, holding that an absolute deed cannot be
changed into one of trust unless there be fraud, accident or mistake ; Rich
v. Elliott, 10 Vt. 214, holding parol evidence not admissible to show that
different line was intended than that described in deed ; Bank of St. Mary's
V. Mumford, 6 Ga. 77, holding parol evidence admissible in suit against
joint ai^i several promisors to show that one was security only; Snapp
V. Moore, 2 Overt. 237, holding that admissions of joint obligor, though
not a party, are admissible against his co-obligors; Smith v. Williams, 1
Murph. (N. C.) 433, 4 Am. Dec. 569, where, on sale of slave, it was held
that warranty of soundness could not be proved by parol; Bumford v.
Purcell, 4 G. Greene, 489, holding parol promise to pay debt of another
without consideration, void; Eaton v. Mayo, 118 Mass. 143, where ques-
tion was as to whether certain letter amounted to guaranty j O'Harra v.
Hall, 4 Dall. 340, 1 L. Ed. 859, where, in an action by assignee of bond
against assignor, plaintiff attempted to show assignor had guaranteed pay-
ment; Hodgkins v. Bond, 1 N. H. 286, an assumpsit upon a promise of a^
defendant to guarantee the pa3nncnt of a note; Douglass v. Reynolds, 7
Pet. 119, 8 L. Ed. 629, where, in an action upon guaranty, evidence was
held admissible to establish that credit had been given upon strength of
it; Hall v. Rand, 8 Conn. 575, where, in an action on a guaranty, parol
evidence of subject matter and of circumstances was held inadmissible;
in note to Lanusse v. Barker, 3 Wheat. 148, 4 L. Ed. 856, where cases on
83 SIMS V. IRVINE. 3 DaU. 425-466
the subject of the construction of guarantees are cited; O'Harra y. Hall,
18 Fed. Cas. 628, rejecting evidence to alter writing; Emerson v. Slater,
22 How. 42, 16 L. £d. 365, holding parol evidence' admissible to show that
parties had' subsequently made new oral agreement; Swain v. Seamans,
9 Wall. 272, 19 L. Ed. 660, written contract, within statute of frauds,
cannot be varied by parol agreement; Peisch v. Dickson, 1 Mason, 12,
Fed. Cas. 10,911, where rules as to latent and patent ambiguities were
stated.
Distinguished in Packard v. Richardson, 17 Mass. 142, 9 Am. Dec. 135,
where principal case was cited as deciding that consideration of promise
to pay debt of another must be in writing.
S DUlL 425-466, 1 L. Ed. 665, SIMS v. IBVINE.
Compact between States by which disputed territory ceded together with
act confirming rights of holders of cede^ territory, confers complete legal title.
Cited in Rhode Island v. Massachusetts, 12 Pet. 725, 9 L. Ed. 1261, a
suit to establish a boundary; Pollard v. Kibbe, 14 Pet. 413, 416, 10 L. Ed.
519, 521, where ejectment was brought for piece of land in Mobile, title
to which was confirmed by special act of Congress ; Coleman v. Doe ex dem.
Tish Ho Mah, 4 Smedes & M. 49, holding that legal title is vested in an
Indian who brought himself within provisions of fourteenth article of
the Dancing Creek treaty.
Warrant and survey accompanied by payment, though unaccompanied hy
patent^ give legal right of entry.
Cited in Cox v. Cromwell, 3 Binn. 119, holding that an estate of this kind
is stronger than that of man who has contracted to purchase land and
paid his tnoney but obtained no conveyance; Wells v. Wright, 3 Wash.
254, Fed. Cas. 17,405, which held that party cannot set up title by settle-
ment prior to day stated for commencement of his settlement in warrant
issued to him; Herron v. Dater, 120 U. S. 471, 80 L. Ed. 751, 7 Sup. Ct.
623, and Kirk v. Smith, 9 Wheat. 297, 6 L. Ed. 94, where in both cases
court said that warrant, survey and payment give an absolute estate;
Goodlet V. Smithson, 5 Port. 249, 30 Am. Dec. 563, holding that purchaser,
by act of entry and payment, acquires an inchoate legal title which may
be alienated or divested; Winter v. Jones, 10 Ga. 202, 54 Am. Dec. 387,
holding that holder of receipt from State for price is indefeasibly entitled
to patent; Cawley v. Johnson, 21 Fed. 495, holding receipt issued upon
payment constitutes such conveyance that it will form foundation for
adverse possession; Murphy v. Packer, 152 U. S. 399, 38 L. Ed. 490, 14
Sup. Ct. 636, holding that it was not competent for the State to affect
that title by subsequent patent to stranger; dissenting opinion in Bagnell
V. Broderiok, 13 Pet. 456, 10 L. Ed. 245, where it was held that patent from
United States was conclusive in an action at law; Hamilton v. Avery, 20
Tex. 635, holding that proviso in an act saving rights of third persons,
saved claim of one who had caused certificate to be located on part of
land; Mitchell v. United States, 9 Pet. 747, 9 KEd. 296, in which claim
to landfr derived from grants by Creek and Seminole Indians, ratified by
3 DalL 425-466 NOTES ON U. S. REPORTS. 84
local authorities of Spain before cession, was confirmed; Doe v. Eslava,
9 How. 447, 13 L. Ed. 210, where there were conflicting claims and both
had been confirmed by acts of Congress, and question was as to which
claim had priority ; Mayer v. Foulkrod, 4 Wash. 355, Fed. Cas. 9341, where
court considered effect of legal remedy upon jurisdiction of equity.
Limited in Copley v. Riddle, 2 Wash. 354, Fed. Cas. 3214, where eject-
ment was brought and plaintiff nonsuited beci^use no proof of pajnnent
appeared; Dubois v. Newman, 4 Wash. 77, Fed. Cas. 4108, court saying
this doctrine was peculiar to Pennsylvania.
Where navigable river is boundary, middle of bed of river la boundary
line.
Cited in Trapier v. Wilson, 2 McCord, 197, where grant of land having
general course of an island was construed.
A warrant and survey accompanied by payment confer title snfilcieiit to
sustain ejectment, althou^ patent haa not issued.
Approved in Beatty v. Wilson, 161 Fed. 460, to point that principal
case recognized that purchaser of school lands prior to issuance of patent
acquired only equitable interest and could not maintain ejectment against
subsequent purchaser from state ; Doe v. West, 1 Blackf . 134, holding that
in ejectment, prior peaceable possession under claim of right will prevail
against mere intruding; Jackson ex rel. McConnell v. Wilcox, 1 Scam.
373, holding that certificate of register of land office is of as high au-
thority as patent; Donald v. McKinnon, 17 Fla. 749, where party pur-
chased title of landlord at execution and sued lessee to recover possession;
Strother v. Lucas, 12 Pet. 452, 9 L. Ed. 1154, an ejectment upon title
confirmed by board of commissioners; Wilson v. Kilcannon, 1 Overt. 205,
where bill in equity was brought to prevent dispossession of plaintiff by
an ejectment brought by -defendant.
Statute will be construed, if possible, so as not to revoke grant alzBadj
made.
Approved in Nivens v. Nivens, 4 Ind. Terr. 579, 76 S. W. 115, .holding
rights as widow and heir under Cherokee statute of descent having vested
they were not affected by subsequent repeal of statute.
Miscellaneous. Cited in Gravenberg v. Laws, 100 Fed. 4, refusing inter-
vention by labor lienors in action at law to recover fixed sum due under
a contract.
NOTES
ONTHB
UNITED STATES REPORTS.
IV DALLAS
4 DaU. 1-6, 1 Ik Ed. 715, STATE OF NEW YOBK Y. OONNEOTIOTTT.
Act reqnixing notice to advene party extends to injunctions granted by
Supreme, or Circuit Ctourts^ as well as by single judge.
Cited in Wynn v. Wilson, Hempst. 699, Fed. Cas. 18,116, denying injunc-
tion; Mowrey y. Indianapolis, 4 Biss. 80, Fed. Cas. 9891, dissolving injunc-
tion.
Injimction to stay proceedings at law granted only at instance of party to
Rich proceedings or one Interested therein.
Cited and principle applied in McDowell's Appeal, 123 Pa. St. 411, 16
Atl. 759, where plaintiff was heldto be party interested, within rule.
Instance of jurisdiction of Supreme Court where State a party.
Cited as instance of exercise of original jurisdiction by Supreme Court
where suit against a State in Governor v. Madrazo, 1 Pet. 122, 7 L. Ed. 79 ;
New Jersey v. New York, 5 Pet. 290, 8 L. Ed. 129, Wisconsin v. Pelican
Ins. Co., 127 U. S. 288, 32 L. Ed. 242, 8 Sup. Ct. 1373, and State ex rel.
Drake v. Doyle, 40 Wis. 205; as showing that Federal Supreme Court
exercises its jurisdiction without enabling acts of Congress in refuting
argument that enabling act was necessary to exercise of jurisdiction of
justice of the peace, More v. Woodruff, 5 Ark. 215; in refuting argu-
ment as to concurrent jurisdiction of law and equity in State Court,
Hempstead v. Watkins, 6 Ark. 357, 42 Am. Dec. 702; erroneously to a
question of admiralty jurisdiction in Waring v. Clarke, 5 How. 489, 12
L. Ed. 249.
Approved in Missouri v. Illinois etc. Dist., 180 U. S. 224, 45 L. Ed. 506,
21 Sup. Ct, 337, upholding Supreme Court's jurisdiction as involving con-
troversy between two States; State v. Frost, 113 Wis. 655, 89 N. W. 923,
arguendo.
Baprems Court htm no jnrlsdiction of salt by State respecting territory
onlflss sabstantlal xigbt of soil as distinguished from mere political jurisdiction
involved.
(86)
4 Dall. 7-11 NOTES ON U. S. REPORTS. 86
Cited in Georgia v. Stanton, 6 Wall. 72, 18 L. Ed. 723, holding suit call-
ing in^question reconstruction acts involved political question within rule,
and would not he considered ; dissenting opinion in Rhode Island v. Massa-
chusetts, 12 Pet. 753, 9 L. Ed. 753, arguing that boundary dispute between
States raised political question; dissenting opinion in Hopkins v. Hebard,
194 Fed. 316, 114 C. C. A. 261, majority not passing on point.
4 I>alL 7-8, 1 L. Ed. 717, TUBNEB v. EKBILLE.
JurlBdlction depending upon alienage or diverse dtlienshlp must affirma-
tlvely appear on record.
Cited in Morgan v. Gay, 19 Wall. 83, 22 L. Ed. 100, where citizenship
of plaintiff's assignors was not averred and judgment reversed; Bank v.
Willis, 3 Sumn. 473, Fed. Cas. 886, applying rule to averments of citizen-
si ip of members of corporation; Morrison v. Bennet, 1 McLean, 330, Fed.
Cas. 9843, holding failure to aver citizenship of one of several defendants
ousted jurisdiction as to him; Commissioners v. Thompson, 18 Ala. 697,
applying rule to commissioners' court of State; Ingraham v. Arnold, 1
J. J. Marsh. 407, holding averments suflScient; Camp v. Wood, 10 Watts.
122, requiring that certain jurisdictional facts appear in record of justice
court action; dissenting opinion in Dred Scott v. Sandford, 19 How. 473,
15 L. Ed. 728, arguing that plea to jurisdiction of Circuit Court could not
be waived; dissenting opinion in Marshall v. Baltimore, 16 How. 340, 14
L. Ed. 964, majority holding sufficient an averment that defendant was
body corporate created by legislature of Maryland; dissenting opinion in
McNutt V. Bland, 2 How. 20, 11 L. Ed. 163, majority upholding federal ju-
risdiction over suit on sheriff's bond by nonresident; dissenting opinion in
Bierbower v. Miller, 30 Neb. 181, 47 N. W. 2, majority holding nonresident
defendant cannot remove cause for local prejudice unless matter in dispute
exceeds two thousand dollars.
CkMrtfl In Supreme Court taxed against def endaat In error, mit being
reversed for want of JurlBdlctiLon In Circuit Court.
Cited in Bradstreet v. Higgins, 114 U. S. 264, 29 L. Ed. 176, 5 Sup. Ct.
880, holding that defendant in error may recover costs incident to motion
to dismiss for want of jurisdiction.
Want of Jurisdiction of Circuit Court raised by writ of error.
Cited in Jim v. State, 3 Mo. 163, to point that want of jurisdiction in
Federal courts is taken advantage of by writ of error, by demurrer, or at
trial by motion in arrest of judgment.
4 Daa 8-11, 1 L. Ed. 718, TUBNEB v. BANK OF NOBTH AMEBIOA.
Assignee of chose In action may not sue in Federal Circuit Court unless his
assignor might have done so.
Approved in Kolze v. Hoadley, 200 U. S. 83, 50 L. Ed. 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 com-
87 TURNER v. BANK OF NORTH AMERICA. 4 Dall. g-11
plainant'B rights, wlio held deeds as collateral security for loan to trustee ;
Emsheimer ▼. New Orleans, 186 U. S. 47, 46 L. Ed. 1048, 23 Sup. Ct. 646,
Circuit Court jurisdiction over assignees of chose in action relates to time
of bringing suit; Portage City^ Water Co. v. City of Portage, 102 Fed. 7Tl,
holding assignee of chose in action may sue in Federal court if he is resi-
dent of different State from defendant ; 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 coqtract to recover money due thereon, where assignor
could not have maintained suit in such court ; MoUan v. Torrance, 9 Wheat.
539, 6 L. Ed. 154, indorsee suing a remote indorser must show citizenship
of intermediate indorsers to be different from that of defendant; Moigan
V. Gay, 19 Wall. 83, 22 L. Ed. 100, holding similarly as to suit by indorsee
against payee; Coffee v. Planters' Bank, 13 How. 187, 14 L. Ed. 106, deny-
ing jurisdictioin of suit by indorsee of check on this ground; Phillips v.
Preston, 5 How. 291, 12 L. Ed. 157, and Bank v. Moss, 6 How. 36, 12 L. Ed.
334, appljring rule in denying jurisdiction as to counts of complaint based
upon negotiable instrument, but sustaining jurisdiction as to certain other ^
common money counts for same ; Brown v. Noyes, 2 Wood. & M. 79, Fed. Cas.
2023, ruling similarly; United States v. McNair, 56 Fed. 327, and Rogers
▼. Ldnn, 2 McLean, 127, Fed. Cas. 12,015, sustaining demurrer for absence
of allegation of diverse citizenship of original parties; Corhin v. Black
Hawk, 105 U. S. 667, 26 L. Ed. 1139, applying rule to suit for specific per-
formance, holding it a suit to recover a chose in action within the statute;
Bradley v. Rhines, 8 Wall. 396, 19 L. Ed. 469, applying rule to suit upon
lease by an assignee; Parker v. Ormsby, 141 U. S. 85, 35 L. Ed. 656, 11
Slip. Ct. 913, reviewing authorities, noting limitations of rule, and quoting
later statutes of 1875 and 1887 abrogating its provisions as to certain
negotiable instruments.
Distinguished in Evans v. Gee, 11 Pet. 83, 9 L. Ed. 641, holding trans-
feree of bill of exchange might sue in Federal court although original
parties were all of same State ; Bushnell v. Kennedy, 9 Wall. 39.0, 19 L. Ed.
738, holding rule inapplicable to cause removed from State court; Holmes
V. X5oldsmith, 147 U. S. 157, 37 L. Ed. 121, 13 Sup. Ct. 290, also holding
it inapplicable where maker of note was an accommodation party to use of
payee, a citizen of same State, and transferee was of a different State;
Jewett V. Bradford, 45 Fed. 802, holding suit to compel transfer of cor-
porate stock on corporate books, not suit on chose in action within act;
Vamer v. West, 1' Woods, 495, Fed. Cas. 16,885, denying application of
principle where note was made payable to A B, or bearer, and transferred
by mere delivery; Dundas v. Bowler, 3 McLean, 208, Fed. Cas. 4140, where
instrument sued upon was mortgage aAd suit was by an assignee to fore-
close, though original parties were of same State. The rule was abrogated
as to n^^tiable instruments by act of 1875, Adams v. Commissioners,
23 Fed. 212, holding county warrants negotiable instruments under act of
1875, and restored as to all save bills of exchange by act of 1887, Parker
V. Ormsby, 141 U. S. 85, 35 L. Ed. 656. U Sup. Ct. 913.
4 Dall. 8-U NOTES ON U. S. REPORTS. 88
Inferior Federal conrtB are of limited Jnrlsdictioii and Jurisdictional facts
should appear upon record. Averment tliat A "used trade" at certain place is
InsuffldMit averment of his citizenship.
Approved in Teel v. Chesapeake etc. Ry. Co., 204 Fed. 919, 47 L. R. A.
(N. S.) 21, 123 C. C. A. 240, holding provision of Employers' Liability Act
against removal of cases from State to Federal courts applied to all sub-
sequent actions, whether cause of action arose before or after act; Gibson
V. Bellingham etc. Ry. Co., 213 Fed. 489, holding District Court could not
hold void provision of act of Congress limiting right of removal from State
court; Farr V. Hobe-Peters Land Co., 188 Fed. 15, 16, 110 C. C. A. 160,
sustaining jurisdiction where original holder of chose in action as well as
plaintiff and immediate assignor might have sued in that court ; Lewis Pub.
Co. V. Wyman, 152 Fed. 202 , Divine v. Unaka Nat. Bank, 126 Tenn. 108,
39 L. R. A. (N. S.) 586, 140 S. W. 749, and Fish v. Chicago etc. Ry. Co.,
263 Mo. 117, Ann. Cas. 1916B, 147, 172 S. W. 343, all holding State courts
had jurisdiction over cases involving rights under Federal statutes unless
deprived thereof by Federal law ; Mahopoulus v. Chicago etc. Ry. Co., 167
Fed. 167, holding action by nonresident alien against corporation in court
of State where it does business, not removable to State where corporation
resides, on ground of diversity of citizenship; Kettelhake v. American Car
& Foundry Co., 243 Mo. 417, 147 S. W. 480, holding alleged error in refus-
ing removal to Federal court did not involve validity of authority exercised
under United States ; Grace v. American Co., 109 U. S. 283, 27 L. Ed. 936,
3 Sup. Ct. 210, holding averment that A is a resident, or "of" a certain
State insufficient ; Assessor v. Osbornes, 9 Wall. 575, 19 L. Ed. 761, holding
insufficient, averment that parties were in trade in certain place; Con-
tinental So. V. Rhoads, 119 U. S. 239, SO L. Ed. 380, 7 Sup. Ct. 193, hold-
ing essential an averment of citizenship of administrator as well as of
his testator; Bank v. Willis, 3 Sumn. 473, Fed. Cas. 885, requiring aver-
ment that citizenship of all members of a plaintiff corporation was different
from that of defendant; Fideliter v. United States, 1 Sawy. 156, 1 Abb.
579, Fed. Cas. 4755, holding libel for condemnation of vessel defective for
failure to allege seizure of the vessel; Clark v. Harkness, 1 Scam. 58 (over-
ruled in Kenney v. Greer, 13 III. 452), holding State Circuit Court to be
limited; Beebe v. Armstrong, 11 Mart. 441, holding that defendant seeking
removal to Federal court must aver citizenship of plaintiff as of the do-
mestic State ; Br<twn v. Noyes, 2 Wood. & M. 79, Fed. Cas. 2023 , Shaw v.
Quincy M. Co., 145 U. S. 447, 36 L. Ed. 770, 12 Sup. Ct. 936, and Marks
V. Marks, 75 Fed. 325, involving questions of acts, necessary to effect change
of residence and citizenship; dissenting opinion, in Marshall v. Railroad,
16 How. 340, 341, 14 L. Ed. 964, arguing that it is insufficient to aver that
defendant was a body corporate created by the legislature of Maryland.
Federal Oircnit Courts are not inferior courts but courts of limited Juris-
diction and Jurisdictional facts mast ai&rmatively appear.
Approved in Hornthall v. The Collector, 9 Wall. 565, 19 L. Ed. 662, fol-
lowing rule; Ex parte Wisner, 203 U. S. 455, 61 L. Ed. 266, 27 Sup. Ct. 150,
holding Circuit Court must remand to State court case transferred to it
89 TURNER v. BANK OP NORTH AMERICA. 4 Dall. ^-11
but of which it had no jurisdiction ; United States v. Barrett, 135 Fed. 194,
Federal court has no jurisdiction over action on bond of govei^nment con-
tractor for use of materialman unless requisite citizenship and amount are
affirmatively 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; Huntington v, Pinney, 126 Fed. 239, holding where
in suit to quiet title brought against several defendants, only two joined
to remove cause on ground of citizenship, and failure of others to join was
sought to be obviated by rearrangement of parties according to alleged
adverse interests, but such rearrangement did not extend to all defendants,
defect of misjoinder was fatal; Fife v. Whittell, 102 Fed. 539, right of
removal must appear either in record in State court or in petition for re-
moval; Thompson v. Sdlithem |ly., 130 N. C. 142, 41 S. E. 10, refusing
removal when x)etition does not specifically allege (hat corporation is non-
resident; Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 990, uphold-
ing territorial court's jurisdiction over suit, though petition incorrectly
described court as Federal court; dissenting opinion in Matter of Moore,
209 U. S. 609, 14 Ann. Gas. 1164, 52 L. Ed. 912, 28 Sup. Ct. 706, majority .
holding either party could waive objections that case was not brought in
particular Federal court required by statute; dissenting opinion in Giles v.
Harris, 189 U. S- 501, 47 L. Ed. 918, 23 Sup. Ct. 646, majority denying Cir-
cuit Court's jurisdiction to compel board of registers to enroll negroes;
Commissioners v. Thompson, 18 Ala. 697, applying the doctrine in holding
commissioners' court to be inferior, and that its jurisdiction of proceedings
for establishment of road must affirmatively appear; Wright v. Marsh, 2
G. Green, 103, holding Iowa territorial District Courts not inferior but
limited ; tiowry v. Erwin, 6 Rob. (La.) 206, 39 Am. Dec. 566, holding juris-
diction of Circuit Court to render judgment may be collaterally examined
where litigated title is based thereon; Railroad Co. v. Gray, 38 Mich. 468,
and Bagley v. Pridgeon, 42 Mich. 552, 4 N. W. 289, holding municipal
courts to be of limited jurisdiction, and that it must affirmatively appear;
Reed v. Vaughn, 10 Mo. 448, holding that bankruptcy discharge in District
of Columbia Federal court will be presumed to have been duly granted;
Blair v. West etc. Co., 7 N^b. 164, holding that in petition for removal
to Federal court. State court has right to examine into allegations as to
diverse citizenship; State v. Scott, 9 N. J. L. 20, applying principle in set-
ting aside return of road surveyors, since it appeared that they did not
meet at place designated; similarly because they were not all personally
notified of the meeting, as required ; State v. Van Geison, 15 N. J. L. 341,
under statute omission to give each road surveyor personal notice of time
and place of meeting vitiates proceedings ; Den v. Hammel, 18 N. J. L. 80,
holding Orphans' Court not limited or inferior; Princeton v. Overseers,
23 N". J. L. 173, holding that proceedings for removal of paupers must be
strictly pursued and jurisdiction appear; Van Doren v. Horton, 25 N. J. L.
208, requiring that jurisdictional facts appear in record of case before
justice of peace and when so appearing that judgment was conclusive in a
suit brought thereon; Graham v. Whitely, 26 N. J. L. 262, applying prin-
eiple by analogy^ to proof of due execution of deed in another State ; Frees
4 Dall. 8-U NOTES ON U. S. REPORTS. 90
V. Ford, 6 N. Y. 178, and Gilbert v. York, 111 N. Y. 548, 19 N. E. 270,
holding County Courts in New York limited; Johns v. Marion Co., 4 Or*
51, holding proceedings in County Courts for laying out of roads to be
exercise of limited jurisdiction for which jurisdictional facts must appear;
Duffield V. Smith, 3 Serg. & R. 599, holding a >court-martial special and
limited and that one who has pleaded guilty before it may afterward con-
test its jurisdiction; Thompson v. Lyle, 3 Watts & S. 168, holding Federal
District Court limited but not inferior, and the order of a judge thereof
sufficient justification for the seizure of a vessel; dissf^nting opinion in
McNutt V. Bland, 2 How. 20, 11 L. Ed. 163, majority upholding Federal
jurisdiction over suit on sheriff's bond by nonresident; Ludington v. The
Nucleus, 15 Fed. Cas. 1095, holding contracts for materials furnished at
vessel's home port not within statute of 1845, extending admiralty jurisdic-
tion of District Court; United States v. New Bedford Br., 1 Wood. & M.
406, Fed. Cas. 15,867 , Wyman v. Campbell, 6 Port. 244, 31 Am. Dec. 691 ,
Harrison v. Hadley, 2 Dill. 234, Fed. Cas. 6137 , Ex parte Law, 35 Ga. 289,
15 Fed. Cas. 5, and dissenting opinion in Bierbower v. Miller, 30 Neb.
.181, 47 N. W. 2, all arguendo.
Inferior Federal coorte derive their ' judicial power ftotti Congress^ not
directly from Constitiition.
Approved in Stevenson v. Fain, 195 U. S. 167, 49 L. Ed. 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 contro-
versy under grants from different states; Sheldon v. Sill, 8 How. 449, 12
L. £d. 1151, applying doctrine in sustaining the constitutionality of statute
restricting Federal jurisdiction o^ suits by assignee of chose in action to
cases where original parties were of different States ; dissenting opinion in
McNutt V. Bland, 2 How. 27, 11 L. Ed. 166, arguing against Federal juris-
diction of suit for use of citizens of one State brought by the Governor
against citizens of another; In re Barry, 136 U. S. 609, 615, 34 L. Ed. 508,
509, 42 Fed. 122, 126, Fed. Cas. 1059, denying common-law jurisdiction in
Circuit Courts; In re Sewing Machine Cos., 18 Wall. 577, 21 L. Ed. 919,
denying the right under the statute to remove a case to Circuit Court where
only two of three defendants are of different State from plaintiff; United
States V. New Bedford Br., 1 Wood. & M. 431, 432, 435, 438, 442, 455, 492,
Fed. Cas. 15,867, denying Federal jurisdiction to indict for obstructing
navigable waters, in absence of statute; North Carolina v. Trustees, 1
Hughes, 137, Fed. Cas. 10,318, 5 Natl. Bank, Reg. 470, 65 N. C. 718, holding
that Federal Circuit Court has not jurisdiction of suit by State against
its own citizens ; In re Cilley, 58 Fed. 978, holding probate proceedings not
removable to Federal court under judiciary- ^ct ; Harrison v. Hadley, 2 Dill,
234, Fed. Cas. 6137, denying Federal jurisdiction of contested election for
State office ; In re McDonald, 16 Fed. Cas. 18, affirming Federal jurisdiction
in habeas corpus matter; Roberts v. Knight, 7 Allen, 451, denying Federal
jurisdiction of suit between two aliens.
Miscellaneous. Cited in Maskall v. Maskall, 3 Sneed, 209, as holding
that appeal suspends or makes void judgment appealed from, and appeal
is same suit in different forum.
91 NOTES ON U. S. REPORTS. 4 Dall. 12-20
4 DalL 12-14, 1 L. Ed. 720, MOSSMAN v. HXGOINSON.
Jndlclaiy act of 1789 does not Include suit between aliens but only between
alien and dtlzen, and facts of dtizensbip must afflrmatiyely appear.
Approved in I^high Valley Coal Co. v. Yensarage, 218 Fed. 554, 134
C. C. A. 275, sustaining jurisdiction where citizenship of defendant ap-
peared on face of pleadings, though denied, when defendant pleaded to
merits; Stuart v. Easton, 166 U. S. 47, 39 L. Ed. 341, 15 Sup. Ct. 268, hold-
ing averments insufficient; Cissel v. McDonald, 16 Blatchf. 151, Fed. Cas.
2729, denying Federal jurisdiction of suit between alien and citizen of Dis-
trict of Columbia; Hinckley v. Byrne, Deady, 227, Fed. Cas. 6510, aflSrming
jurisdiction between citizen plaintiff and alien defendant ; Pooley v. Luco,
72 Fed. 563, holding fact that lands in dispute were within jurisdiction of
Circuit Court gave it no jurisdiction where parties were all aliens; Orosco
V. Gagliardoy 22 Cal. 85, refusing to grant removal to Federal court where
both parties were aliens; Florence v. Grover, 110 Mass. 81, denying re-
moval where only some defendants were of different State ; Hemdon v. In-
sorance Co., 107 N. C. 195, 12 S. E. 242, holding allegations of citizenship
insufficient and denying removal; dissenting opinions in McNutt v. Bland,
2 How. 21, 11 L. Ed. 164, and Marshall v. Railroad, 16 How. 340, 14 L. Ed.
964, aiding against Federal jurisdiction in those cases. Cited. generally
in United States v. Jarvis, 3 Wood. & M. 224, Fed. Cas. 15,469, Commis-
sioners V. Thompson, 18 Ala. 697, Clarey v. Marshall, 4 Dana, 97.
Distinguished in Texas v. Lewis, 12 Fed. 3, 14 Fed. 67, holding Congress
may eonfer upon Circuit Court jurisdiction of suit by State against an
alien.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. R. A. 839.
Writ of error regulaily tested, but witb return day left blank, may be
amoided by Inserting return day.
Cited in Walton v. Marietta Co., 157 U. S. 345, 89 L. Ed. 726, 15 Sup.
Ct. 627, allowing an amendment by substitution of one person as adminis-
trator and plaintiff in error in place of another ; Commissioners v. Atlantic
etc. R. R., 3 N.'M. 355 (438), 9 Pac. 522, holding teste may be amended
and return day inserted; Hillebrant v. Brewer, 5 Tex. 568, holding it un-
necessary in the writ to give accurately the date of the judgment. Cited
generally as to liberality in allowing amendments, in Buchanan v. Trotter,
4 Fed. Cas. 539.
Right to amend jurisdictional writ made returnable at unauthorized
time. Note, Ann. Gas. 1913A, 556.
4 Dan. 14r-20, 1 L. Ed. 721, COOPEB v. TELFAIR.
C^eorgia act of attainder and confiscation for treason is Talid.
«
Followed in Thompson v. Carr, 5 N. H. 515, sustaining similar act;
Hunt V. McMahaUi 5 Ohio^ 135| upholding occupying claimant law.
4 Dall. S-U NOTES ON U. S. REPORTS* 90
V. Ford, 6 N. T. 178, and Gilbert v. York, 111 N. Y. 548, 19 N. E. 270,
holding County Courts in New York limited; Johns v. Marion Co., 4 Or.
51, holding proceedings in County Courts for laying out of roads to be
exercise of limited jurisdiction for which jurisdictional facts must appear;
Duffield V. Smith, 3 Serg. & R. 599, holding a court-martial special and
limited and that one who has pleaded guilty before it may afterward con-
test its jurisdiction; Thompson v. Lyle, 3 Watts & S. 168, holding Federal
District Court limited but not inferior, and the order of a judge thereof
sufficient justification for the seizure of a vessel; dissenting opinion in
McNutt V. Bland, 2 How. 20, 11 L. Ed. 163, majority upholding Federal
jurisdiction over suit on sheriff's bond by nonresident; Ludington v. The
Nucleus, 15 Fed. Cas. 1095, holding contracts for materials furnished at
vessel's home port not within statute of 1845, extending admiralty jurisdic-
tion of District Court; United States v. New Bedford Br., 1 Wood. & M.
406, Fed. Cas. 15,867 , Wyman v. Campbell, 6 Port. 244, 31 Am. Dec. 691 ,
Harrison v. Hadley, 2 Dill. 234, Fed. Cas. 6137, Ex parte Law, 35 Ga. 289,
15 Fed. Cas. 5, and dissenting opinion in Bierbower v. Miller, 30 Neb.
.183, 47 N. W. 2, all arguendo.
Inferior Federal courtB derive their ' Judicial power from Oongnas, not
directly from Oonstitatlon.
Approved in Stevenson v. Fain, 195 U. S. 167, 49 L. Ed. 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 contro-
versy under grants from different states; Sheldon v. Sill, 8 How. 449, 12
L. Ed. 1151, applying doctrine in sustaining the constitutionality of statute
restricting Federal jurisdiction o^ suits by assignee of chose in action to
cases where original parties were of different States ; dissenting opinion in
McNutt V. Bland, 2 How. 27, 11 L. Ed. 166, arguing against Federal juris-
diction of suit for use of citizens of one State brought by the Governor
against citizens of another; In re Barry, 136 U. S. 609, 615, 84 L. Ed. 508,
509, 42 Fed. 122, 126, Fed. Cas. 1059, denying common-law jurisdiction in
Circuit Courts; In re Sewing Machine Cos., 18 Wall. 577, 21 L. Ed. 919,
denying the right under the statute to remove a case to Circuit Court where
only two of three defendants are of different State from plaintiff; United
States V. New Bedford Br., 1 Wood. & M. 431, 432, 435, 438, 442, 455, 492,
Fed. Cas. 15,867, denying Federal jurisdiction to indict for obstructing
navigable waters, in absence of statute; North Carolina v. Trustees, 1
Hughes, 137, Fed. Cas. 10,318, 5 Natl. Bank, Reg. 470, 65 N. C. 718, holding
that Federal Circuit Court has not jurisdiction of suit by State against
its own citizens ; In re Cilley, 58 Fed. 978, holding probate proceedings not
removable to Federal court under judiciary ^act ; Harrison v. Hadley, 2 Dill.
234, Fed. Cas. 6137, denying Federal jurisdiction of contested election for
State office ; In re McDonald, 16 Fed. Cas. 18, affirming Federal jurisdiction
in habeas corpus matter; Roberts v. Knight, 7 Allen, 451, denying Federal
jurisdiction of suit between two aliens.
Miscellaneous. Cited in Maskali v. Maskail, 3 Sneed, 209, as holding
that appeal suspends or makes void judgment appealed from, and appeal
is same suit in different forum.
91 NOTES ON U. S. REPORTS. 4 Dall. 12-20
4 DalL 12-14, 1 Iiu Bd. 720, MOBSMAN ▼. HXOGINSOK.
Judiciary act of 17)S9 does not include suit between aliens but only between
aUen and citizen, and facts of citizenship must aflixmatively appear.
Approved in I^high Valley Coal Co. v. Yensarage, 218 Fed. 554, 134
C C- A. 276, sustaining jurisdietion where citizenship of defendant ap-
peared on face of pleadings, though denied, when defendant pleaded to
merits ; Stuart v. Easton, 156 U. S. 47, 89 L. Ed. 841, 15 Sup. Ct. 268, hold-
ing averments insufficient; Cissel v. McDonald, 16 Blatchf. 151, Fed. Cas.
2729, den3ring Federal jurisdiction of suit between alien and citizen of Dis-
trict of Columbia ; Hinckley v. Byrne, Deady, 227, Fed. Cas. 6510, afl^rming
jurisdiction between citizen plaintiff and alien defendant; Pooley v. Luco,
72 Fed. 563, holding fact that lands in dispute were within jurisdiction of
Circuit Court gave it no jurisdiction where parties were all aliens ; Orosco
▼. Gagliardo, 22 Cal. 85, refusing to grant removal to Federal court where
both parties were aliens; Florence v. Grover, 110 Mass. 81, denying re-
moval where only some defendants were of different State ; Hemdon v. In-
surance Co., 107 N. C. 195, 12 S. E. 242, holding allegations of citizenship
insufficient and denying removal; dissenting opinions in McNutt v. Bland,
2 How. 21, 11 L. Ed. 164, and Marshall v. Railroad, 16 How. 340, 14 L. Ed.
964, arguing against Federal jurisdiction in those cases. Cited. generally
in United States v. Jarvis, 3 Wood. & M. 224, Fed. Cas. 15,469, Commis-
sioners V. Thompson, 18 Ala. 697, Clarey v. Marshall, 4 Dana, 97.
Distingaished in Texas v. Lewis, 12 Fed. 3, 14 Fed. 67, holding Congress
may confer upon Circuit Court jurisdiction of suit by State against an
alien.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. R. A. 839.
Writ of error regulaxly tested, but with return day left blank, may be
amended by Inserting return day.
Cited in Walton v. Marietta Co., 157 U. S. 345, 89 L. Ed. 726, 15, Sup.
Ct. 627, allowing an amendment by substitution of one person as adminis-
trator and plaintiff in error in place of another; Commissioners v. Atlantic
etc. R. R., 3 N.'M. 355 (438), 9 Pac. 522, holding teste may be amended
and return day inserted; Hillebrant v. Brewer, 5 Tex. 568, holding it un-
necessary in the writ to give accurately the date of the judgment. Cited
generally as to liberaiity in allowing amendments, in Buchanan v. Trotter,
4 Fed. Cas. 539.
Right to amend jurisdictional writ made returnable at unauthorized
time. Note, Ann. Oas. 1913A, 556.
4 DaJl. 14-20, IK Ed. 721, OOOPEB ▼. TEU'AIR.
Georgia act of attainder and confiscation for treason is yalid.
Followed in Thompson v. Carr, 5 N. H. 515, sustaining similar act;
Hunt V. McMahan, 5 Ohio, 135, upholding occupying claimant law.
4 Drill. 14-20 NOTES ON U. S. REPORTS. 92
Judiciary may declare leglslatlTe enactments void, but they are presumed
▼alld and reimgnancy must be clear.
Approved in Cheyney v. Smith, 3 Ariz. 149, 23 Pac. 682, holding United
States Rev. Stats., § 1852, as amended in 1880, providing that sessions of
territorial legislatures shall be limited to sixty days' duration means sixty
legislative working days and not sixty consecutive days; State v. Lay, 86
Conn. 145, 84 Atl. 523, upholding act requiring records of information
agency to be open to inspection of Bureau of Labor Statistics; Young v.
Salt Lake City, 24 Utah, 333, 67 Pac. 1068, upholding statute changing
municipal boundaries; Morrison v. Springer, 15 Iowa, 348, and Lehman v.
McBride, 15 Ohio St. 591, upholding laws authorizing citizens of State, in
military service elsewhere, to vote, confessedly upon this ground; Osburn
v. Staley, 5 W. Va. 94, 13 Am. Rep. 647, according it controlling weight;
Erie v. Casey, 26 Pa. St. 317, upholding law forfeiting railroad charter for
misuser and declaring the proof of misuser introduced, to be fortified by
this presumption. The following citing cases lay down tHe rule and apply
it in upholding various statutes : United States v. Rhodes, 1 Abb. 52, Fed.
Cas. 16,151, upholding civil rights bill ; Cotton v. Commissioners, 6 Fla.
613, internal improvement act; Beall v. Bealls, 8 Ga. 218, Carey v. Giles,
9 Ga. 259^ and Pleuler v. State, 11 Neb. 555, 10 N. W. 481, upholding liquor
law; Rich v. Flanders, 39 N. H. 312, sustaining statute permitting inter-
ested parties to testify; George v. Concord, 45 N. H. 437, upholding legal
tender act ; Simpson v. City Bank, 56 N. H. 469, 22 Am. Rep. 493, statute
respecting savings bank deposits; Bloodgood v. Railroad, 18 Wend. 50, 51,
31 Am. Dec. 347, 348, sustaining condemnation act for railroad com-
panies; Delafield v. State, 26 Wend. 217, upholding judiciary act; Cin-
cinnati etc. V. Commissioners, 1 Ohio St. 83, sustaining act authorizing
municipal aid of railroads; Fleischner v. Chadwick, 5 Or. 154, sustaining
a repealing act; Sharpless v. Mayor, 21 Pa. St. 164, 59 Am. Dec. 769, up-
holding act authorizing municipal aid of railroads ; Louisville etc. v. County
Court, 1 Sneed, 670, 62 Am. Dec. 438, sustaining such a statute with refer-
endum clause; Smith v. O'Dell, 1 Pinn. 455, upholding act creating Su-
preme Court commissioners; United States v. Hall, 26 Fed. Cas. 77, up-
holding act of 1825, respecting private transportation of mails. Cited in
following dissenting opinions arguing against decisions declaring statutes
invalid: Aycock v. Martin, 37 Ga. 169, 92 Am. Dec. 68; Koehler v. Hill, 60
Iowa, 588, 14 N. W. 761 ; Jacobs v. Smallwood, 63 N. C. 126 ; In re North
Milwaukee, 93 Wis. 629, 67 N. W. 1037. Cited in People v. Collins, 3 Mich.
404, arguing in support of a liquor law in which the court was evenly di-
vided : Murphy etc. Test Oath Cases, 41 Mo. 382, criticising Supreme Court
decision annulling test oath acts; State v. Fry, 4 Mo. 177, arguing in
favor of statute granting divorce, court being equally divided; State v..
Doyle, 40 Wis. 191, 22 Am. Rep. 697, criticising case which went out of its
way to pronounce act invalid; United States v. Mackenzie, 30 Fed. Cas.
1162, affirming rule in chaise to jury. Cited simply to point that courts
have power to declare a law void, in Bank v. State, 12 Ga. 498.
93 WILLIAMSON v. KINCAID. 4DaU.20-21
LeglaUtive power, when undeflned, inclndes as well judicial and exeeutlirt
attxibntee.
Cited in Mayor v. State, 15 Md. 479, upholding statute providing for ap-
pN>intment of Baltimore police commissioners by State legislature.
Miscellaneous. The principal case is also cited to the point that in con-
struction of statutes intention of the legislature must prevail, although it
seems not to have decided that proposition: United States v. Freeman, 3
How. 565, 11 L. Ed. 728; Beals v. Hale, 4 How. 51, 11 L. Ed. 872; State v.
Commissioners, 20 Fla. 432; Akin v. Freeman, 49 Ga. 54; also to the point
that ex post facto applies to criminal laws only, which it does not decide,
Le Breton v. Morgan, 4 Mart. (N. S.) 142; and again that a statute in-
fringing fundamental rights is void, Kelly v. Pittsburgh, 85 Pa. St. 186,
27 Am. Rep. 642 ; Willow River Club v. Wade, 100 Wis. 94, 42 L. B. A. S05,
76 N. W. 274, to point that title to public lands at outbreak of Revolution
devolved on States.
4 DaU. 20-21, 1 L. Ed. 723, WILLIAMSON ▼. KJNOAIB.
Whether the value of property in dispute solllces to sustain a writ of error
may be ascertained by affidavits to be taken on ten days' notice, the writ mean-
time is not a supersedeas.
Approved in McLaughlin v. Darlington, 6 Kan. App. 216, 60 Pac, 509,
and Course v. Stead, 4 DalL 25, 1 L. Ed. 724, both following rule ; Ringgold's
Case, 1 Bland Ch. 24, approved as proper in chancery appeals in Mary-
land; Harris v. Hopson, 5 Tex. 533, holding that State Supreme Court
mi^ht receive affidavits to prove that an appeal bond was filed too late and
fraudulently antedated ; Austin v. Bahn, 87 Tex. 683, 29 S. W. 646, order-
ing affidavits of value to determine right of appeal where value was not
disclosed by record; Davie v. Heyward, 33 Fed. 94, holding that it is
for Supreme and not Circuit Court to pass upon question of value on
application for writ of error; Elgin v. Marshall, 106 U. S. 580, 27 L. Ed.
250, 1 Sup. Ct. 487, holding that where record showed judgment for
less than , necessary amount, writ would not lie even though ultimate
amount in dispute was greater; Harman v. Lynchburg, 33 Gratt. 40, dis-
cussing appeals as determined by value in dispute.
Distinguished in Richmond v. Milwaukee, 21 How. 392, 16 L. Ed. 72, and
Red River Cattle Co. v. Needham, 137 U. S. 634, 84 L. Ed. 800, 11 Sup.
Ct. 209, holding that where record contained allegations of value insuffi-
cient to sustain writ, affidavits would not be received to enhance or vary it.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 866.
.(
Miscellaneous. Cited erroneously on question of estoppel by award in
Shepard v. Ryers, 15 Johns. 503 i Crabtree v. Green, 8 Ga. 19.
4 Dall. 21-27 NOTES ON U. S. REPORTS. 94
4 DaU. 21, 1 L. £d. 724, BLAIR ▼. MILI£B.
Writ of error not returned at term to which it is returnable is nullity.
Approved in Grisby v. Purcell, 99 U. S. 506, 507, 25 L. Ed. 354, dismissing
appeal for failure to return writ and file transcript; Haden y. United
States, 4 Port. 395, where judgment below was affirmed on this ground and
motion to set it aside denied; Carleton v. Goodwin, 41 Ala. 155, affirming
judgment on this ground; Alexander v. Nelson, 42 Ala. 466, where trial
court proceeded in probate matter thus appealed from, the appeal having
lapsed, and this action was sustained.
Distinguished in Tardy v. Murry, 17 Ala. 586, and held inapplicable
where a second writ is pending, although the first has lapsed; Wood v.
Lide, 4 Or. 181, 2 L. Ed. 588, allowing return of writ after return day if
served before.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 851. «
4 Dall. 22, 1 Ifc Ed. 724, BtJTHEBFOBD T. FISHEB.
Writ of error will lie only ftom final judirment.
Followed in United States v. Girault, 11 How. 32, 13 L. Ed. 592,^ dismiss-
ing appeal where suit on bond and note had not been disposed of as to all
parties when appeal was taken ; Luxton v. North etc., 147 U. S. 341, 37 L.
Ed. 196, 13 Sup. Ct. 358, holding order of Circuit Court appointing com-
missioners to assess damages upon condemnation proceedings not final
within rule; Blakeley v. Fish, Hempst. 12, Fed. Gas. 18,240, dismissing ap-
peal from order overruling demurrer; Eslava v. Rigland, 3 AJa. 364, hold-
ing order quashing attachment not final or appealable. Cited in Ringgold's
Case, 1 Bland Ch. 17, discussing appeals generally.
Miscellaneous. Cited erroneously in Hillebrant v. Brewer, 5 Tex. 568.
4 DaU. 22, 1 L. Ed. 724, BLAINE ▼. SHIP OHAKLES OARTEB.
Appeal Arom Olrcult Oourt must invariably be by writ of error.
Cited in United States v. Wonson, 1 Gall. 8, 28, Fed. Cas. 16,750,
applying rule in debt for penalty tried in District Court.
4 DaU. 22-27, 1 L. Ed. 724, OOUBSE V. STEAD.
Jurisdiction dependent upon diverse citizenship must be supported by aUe-
gation by citizensldp of aU parties, including party introduced by supplemental
biU.
Cited in Blair v. West Co., 7 Neb. 154, holding allegations of diverse
citizenship in petition for removal, denied by answer, may be tried by State
court; dissenting opinion in McNutt v. Bland, 2 How. 21, 11 L. Ed. 164,
arguing against Federal jurisdiction of suit brought for benefit of citizens
of one State by Governor against citizens of another; dissenting opinion in
Gwin V. Breedlove, 2 How. 41, 11 L. Ed. 172, majority holding that motion
95 PRIESTMAN v. UNITED STATES. 4 Dall. 28-34
by plaintiff for judgment against marshal who held certain execution
moneys collected upon judgment in plaintiff's favor need not aver marshal's
citizenship as it was but incident to a suit in which citizenship of the prin-
cipal parties was averred; dissenting opinion in Marshall v. Baltimore, 16
How. 342, 14 L. Ed. 965, arguing that allegation that corporation was
created by legislature of Maryland was insufficient.
Approved in Schuyler N. Bank v. Gadsden, 179 U. S. 681, 45 L. Ed. 884,
21 Sup. Ct. 918 , Southern R. Co. v. Postal Tel. Co^ 179 U. S. 643, 45 L. Ed.
356, 21 Sup. Ct. 250, and Southern R. Co. v. Postal Tel. Co., 93 Fed. 396,
all following rule.
To determine wbether matter in dUqnite is of snfllcient valus to authorise
Witt of enor, affidavits of value may be 'taken.
Approved in McLaughlin v. Darlington, 6 Kan. App. 216, 50 Pac. 509,
following rule; Harman v. Lynchburg, 33 Gratt. 40, discussing, gener-
ally, amount in dispute as determining right of appeal.
Distinguished in Red etc. v. Needham, 137 U. S. 634, 84 L. Ed. 800, 11
Sup. Ct. 209, holding that where record contained allegations of value in-
sufficient to sustain the writ, affidavits would not be received to enhance
or vary it ; Richmond v. Milwaukee, 21 How. 392, 16 L. Ed. 72, where affi-
davits were sought and refused after judgment of dismissal for want of the
proper showing of value.
On appeal ftom Oirenlt Oonxt, laws of any 8tat«i may be read without
liavlng 1)een proved in evidence.
Distinguished in Hanley v. Donoghue, 116 U. S. 6, 29 L. Ed. 537, 6 Sup.
Ct. 245, holding that on error to State Supreme Court only laws of that
State will be judicially noticed.
Proof and evidence of foreign laws and their effect. Note, 113 Am.
St Rep. 873.
Teste of writ of error Is amendable of coune, and name of district may
be suivlled.
Cited in Walton v. Marietta Co., 157 U. S. 345, 346, 89 L. Ed. 726, 727,
15 Sup. Ct. 627, 628, holding that writ in name of one person as admin-
istrator may be amended by substitution of name of his successor; Com-
missioners V. Railroad, 3 N. M. 355, 356 (438), 9 Pac. 522, 523, follow-
ing rule; Ringgold's Case, 1 Bland Ch. 24, general discussion of chancery
appeal practice.
4 DaU. 28-34, 1 L. Ed. 727, PBIESTAfAK ▼. X7NITBD ftTATB&
Under act of 1793, foreign goods exceeding eight hundred dollars in value,
transported without permit ftom Maryland acrow Delaware to Pennsylvania,
are liable to forfeiture.
Distinguished as to form of the information, in Cross v. United States,
1 Gall. 31, Fed Cas. 3434, holding information for such offense must allege
it to be against the form of the statute, and remarking that this defect in
the principal case was not brought to the court^s attention.
4 Dall. 34-46 NOTES ON U. S. REPORTS. 96
Bevenue system dioald be f altbfoUy obeenred and strictly executed.
Cited in Lane v. Russell, 4 Cliff. 125, Fed. Cas. 8053, construing term
"ribbons" in tariff law; Maus v. Railroad, 27 111. 86, construing State reve-
nue law. •
Courts must conform to letter of statute wlien ftee from ambiguity, with-
out ^peculating as to supposed intent. %
Approved in Union Pac. Ry. Co. v. Karges, 169 Fed. 462, construing act
of 1862 granting lands tb Union Pacific Railroad ; McKay v. Fair Haven &
W. R. Co., 75 Conn. 611, 54 Atl. 924, construing Pub. Acts 1899, chapter
187, page 1102, relative to trial dockets; Farrell v. Dart, 26 Conn. 382, con-
struing statute validating certain deeds; Annan v. Houck, 4 Gill, 332, 45
Am. Dec. 136, refusing to extend statute by construction ; Maxwell v. State,
40 Md. 295, refusing to obviate consequences of a palpable mistake in a
statute, by construction ; Mayor v. Lord, 18 Wend. 139, holding statute too
plain for judicial construction ; Randall v. Railroad, 107 N. C. 750, 12 S. E.
606, declining to hold thing within words of statute to be without its mean-
ing; Fisher v. Dabbs, 6 Yerg. 150, collecting rules of construction, in inter-
preting a law respecting procedure; dissenting opinion in Pennsylvania
etc. V. Pittsburgh, 104 Pa. 553, refuting argument drawn from a supposed
legislative intent not expressed in words ; dissenting opinion in Buffham v.
Racine, 26 Wis. 464, arguing against proposition that municipality is ex-
cepted, by implication, from statute respecting garnishment; dissenting
opinion in Hawaii v. Mankichi, 190 U. S. 248, 47 L. Ed. 1034, 23 Sup. Ct.
802, construing resolution annexing Hawaii.
Tax on manufacturing corporations. Note, 64 L. B. A. 61.
Miscellaneous. Miscited in Chicago etc. R. R. v. Ellson, 113 Mich. 37,
71 N. W. 326. Cited in Union etc. Ry. v. Wyler, 158 U. S. 296, 39 L. Ed.
990, !I5 Sup. Ct 882, to point that Federal courts judicially notice state
laws.
4 DaU. 84r-36, 1 U Ed. 780, TALBOT ▼. THE AMEUA.
American recaptors . are entitled to salvage for rescuing armed neutral
vessel from French captors.
Followed in Has v. Tingy, 4 Dall. 42, 1 L. Ed. 733, a similar case.
Duty of conquering with respect to obligations of conquered state.
Note, 5 B. R.^ 0. 907.
4 Dall. 37-46, 1 L. Ed. 731, BA8 ▼. TINaT.
War is external contention by force between some of the members of two
nations, authorized by legitimate powers.
Approved in Montoya v. United States, 180 U. S. 267, 45 L. Ed. 524, 21
Sup. Ct. 360, holding hostile Apaches leaving reservation constitute "band''
within meaning of Indian Depredation Act.
Congress may wage general or limited war.
Cited in Metropolitan Bank v. Van Dyck, 27 N. Y. 449, in observing that
power to declare war means also power to wage it.
NOTES
ONTHB
UNITED STATES REPORTS.
I CBANCH.
1 Or. 1-45, 2 1^. Ed. 15, TAI.BOT ▼. SEEMAN.
Salvage ftom vessel saved from pirates Is comi>ensatloii for actual services
rendered but taking must be lawful and service must be meritorious.
Approved in The Job H. Jackson^ 161 Fed. 1017j holding service by tugs
towing derelict after latter towed to anchorage by another .vessel not sal-
vage service ; Clarke v. Brig Dodge Healy, 4 Wash. C. C. 657, Fed. Cas. 2849,
denying right to salvage where it did not appear vessel was saved by libel-
ant's instrumentality; Davidson v. Sealskins, 2 Paine, 333, Fed. Cas. 3661,
denying salvage because taking was unlawful; Steamboat Narragansett,
01c. 392, Fed. Cas. 10,020, denying salvage where effort was unsuccessful;
Butterworth v. Washington, 4 Fed. Cas. 926, allowing slight salvage, aid
having been continuous and successful.
Intent with whlcli recapture is made is not material on question of salvage.
Approved in Le Tigre, 3 Wash. C. C. 574, Fed. Cas. 8281, where seizure
was not made to protect or benefit the owner.
To entitle to salvage danger of property saved must be real and imminent;
Imt loss need not be inevitably certain.
Cited in Spencer v. Steamboat, 1 Bond, 121, Fed. Cas. 13,232, holding
danger, to life not an essential element ; The Spokane, 67 Fed. 256, allow-
ing salvage under facts although i)eril but slight; Bark Delphos, 1 Newb.
419, Fed. C!as. 14,400, discussing various considerations which go to fix
amount of salvage; Steamboat Pontiac, 5 McLean, 365, 1 Newb. 135, Fed.
Cas. 8801, steamboat held in great danger from ice upon river; The Conne-
mara, 108 TJ. S. 357, 27 L. Ed. 763, 2 Sup. Ct. 756, awarding salvage to
rescue from fire although the danger of loss was relatively slight; The
Senator, 1 Brown Adm. 375, Fed. Cas. 12,664, holding danger sufficient to
entitle to small salvage; Brooks v. Wm. Penn, 2 Hughes, 148, Fed. Cas.
1965, remarking that salvage is to be encouraged by liberal reward.
1—7 (97)
1 Cr. 1-45 NOTES ON U. S. REPORTS. 98
Salvage for recapture of neutral venel armed liy Frencli during period of
limited war.
Approved in The Panama, 176 U. S. 546, 547, 44 L. Ed. 581, 582, 20 Sup.
Ct. 484, holding mail ships are prizes of war; Murray v. Charming Betsey,
2 Cr. 121, 2 L. Ed. 227, as to recapture of neutral from the French ; Will-
iams V. Suffolk Ins. Co., 3 Sumn. 276, Fed. Cas. 17,738, awarding salvage in
similar case because of practice of Buenos Ayres government similar to
French ; United States v. Wilder, 3 Sumn. 315, Fed. Cas. 16,694, following
rule; Peck v. Randall, 1 J9hns. 177, respecting exceptional rule where con-
demnation imminent ; Snowden v. Ins. Co., 3 Binn. 468, 471, a suit for insur-
ance money on vessel ; Clayton v. Ship Harmony, 1 Pet. Adm. 78, Fed. Cas.
2871, awarding salvage to those rescuing vessel captured by French.
Foreign laws muat be proved aa facts.
Approved in Yang Tsze Ins. Assn. v. Fumess, 215 Fed. 866, 132 C. C. A.
201, refusing to take judicial notice of foreign law in fixing liability of
foreign vessels responsible for collision; Jennings v. Smith, 99 Fed. 189,
refusing to review finding of referee as to foreign law; Hanley v. Donog-
hue, 116 U. S. 4, 7, 29 L. Ed. 536, 537, 6 Sup. Ct. 244, 245, holding States
of Union foreign within rule, and that Supreme Court on error to State
court notices only such laws as it does; Liverpool etc. Co. v. Phoenix Ins.
Co., 129 U. S. 446, 82 L. Ed. 794, 9 Sup. Ct. 473, declining to notice Eng-
lish law; Brashear v. Williams, 10 Ala. 633, holding Choctaw Indian cus-
tom and law as to descent must be proved; Brackett v. Norton, 4 Conn.
521, 10 Am. Dec. 181, and Dyer v. Smith, 12 Conn. 390, holding laws of
sister State foreign and must be proved,; €)wen v. Boyle, 15 Me. 149, 32
Am. Dec. 145, discussing mode of proof and noting the exception intro-
duced by the leading case; Bowditch v. Soltyk, 99 Mass. 138, where proof
was testimony of foreign jurists; Ward v. Morrison, 25 Vt. 602, holding
that if foreign law was claimed to be different from domestic it must be
proved so; Allen v. Watson, 2 Hill L. 320, admitting official publication
of Georgia law; Henthorn v. Doe, 1 Blackf. 160, .discussing acts of Con-
gress providing mode of proof; Ennis v. Smith, 14 How. 427, 14 L. Ed.
484, discussing modes of proof and holding it must be the best evidence
obtainable; The Pawashick, 2 Low. 144, 147, Fed. Cas. 10,851, applying
rule in admiralty and discussing mode of proof of English laws ; People v.
Lambert, 5 Mich. 361, 72 Am. Dec. 51, ruling that proof of sister State law
may be proved by authenticated copies; Barrows v. Downs, 9 R. I. 448,
11 Am. Rep. 285, allowing Spanish lawyer to prove Cuban law; Dundee
Co. V. Cooper, 26 Fed. 669, 11 Sawy. 507, permitting witness to testify that
certain volume was authoritative copy of English statutes ; Beach v. Work-
man, 20 N. H. 383, refusing to admit Canadian publication in proof of
English statute ; Dawson v. Peterson, 110 Mich. 433, 68 N. W. 247, admit-
ting volume of Canadian statute proved by testimony of Canadian solicitor.
Cited in general discussion in McCall v. United States, 1 Dak. 312, 46 N. W.
610.
Foreign pnblic laws and decrees on subject of international ooncem,
promulgated by tlie United States, Judicially noticed.
99 TALBOT v. SEEMAN. 1 Cr. 1-45
Approved in The New York, 175 U. S. 196, 44 L. Ed. 180, 20 Sup. Ct. 70,
holding coarts of admiralty take judicial notice of foreign navigation
lales; East Building etc. Assn. v. Williamson, 189 U. S. 125, 47 L. Ed. 739,
23 Sup. Ct. 529, holding courts follow decisions of their own State in con-
struing statutes of sister State; Radcliff v. Unit. Ins. Co., 7 Johns. 51,
holding diplomatic correspondence printed by government , admissible;
People v. Lambert, 5 Mich. 361, 72 Am. Dec. 51, discussing modes of proof ;
Barrows v. Downs, 9 R. I. 448, 11 Am. Rep. 285, where Spanish lawyer was
allowed to testify to Cuban partnership law ; Dundee etc. Co. v. Cooper, 26
Fed. 669, 11 Sawy. 507, McCall v. United States, 1 Dak. 312, 46 N. W.
610, and Allen v. Blunt, 2 Wood. & M. 128, Fed. Cas. 217, in general dis-
cussion.
Proof and evidence of foreign laws and their effect. Note, 113 Am.
St. Rep. 874, 884.
Admissibility of printed copy of statutes to prove law of another juris-
diction. Note, Ann. Gas. 1916D, 857, 858.
Oral proof of foreign laws. Note, 25 L. R. A. 450, 451, 455, 456, 460,
461.
How case determiued when proper foreign law not proved. Note, 67
L. R. A. 83.
anprane Conn wtUi rwpect to facts Is llmlMl to statsment In lower court
Cited in Insurance Co. v. Folsonv 18 Wall. 249, 21 L. Ed. 237, applying
rule in reviewing trial of fact by court without jury; United States v.
King, 7 How. 865, 12 L. Ed. 948, applying rule.
Legislation founded on mlstaJsen notice of what is law does not change
ictnal state of law as to pre-existing cases.
Approved in Blanchard v. Railroad, 31 Mich. 49, 18 Am. Rep. 146, argu-
ing that individuals cannot change legal effect of their written instru-
ments; Van Norman v. Jackson, 45 Mich. 210, 7 N. W. 798, holding legis-
lation assuming existence of a remedy does not establish it; Rhoadea
V. Davis, 61 Mich. 311, 16 N, W. 662, holding .that empowering statute
does not necessarily show that power did not previously exist; dissenting
opinion in Lott v. Lott, 146 Mich. 591, 8 L. R. A. (N. S.) 755, 109 N. W.
1130, majority holding that before act of 1877 wife did not have right to
bar dower by separate deed.
Dnty of conquering with respect to obligations of conquered State.
Note, 5 B. R. 0. 907.
Miscellaneous. Cited as to amendment of writ of error. Garland v.
Davis, 4 How. 154, 11 L. Ed. 918; as case where "reasonable cause'' ahd
"probable cause" were used interchangeably; Stacey v. Emery, 97 U. S.
646, 24 L. Ed. 1036, Perkins v. Hill, 2 Wood. & M. 165, Fed. Cas. 10,987,
and McLaren v. PenningtoU; 1 Paige, 108, not in point.
1 Cr. 45-103 NOTES ON U. S. REPORTS. 100
1 Cr. 46-103, 2 Ifc Bd. 29, WILSON ▼. MASOK.
Compact of two States cannot deprlye Congress of powifr to regulate
appellate Jurisdiction of Supreme Court. .
Cited in Young v. Bank, 4 Cr. 388, 2 L. Ed. 656, holding invalid a cor-
porate charter provision denying right of appeal in all cases where Federal
law or law of sister State conferred such right ; Wheeling Bridge Case, 18
How. 433, 15 L. Ed. 438, holding compact of two States as to Ohio River
cannot' restrict power of Congress to regulate conmierce thereon ; Ex parte
Holman, 28 Iowa, 105, 4 Am. Rop. 169, holding one in custody under Fed-
, eral process cannot be released by habeas corpus in State court ; Ex parte
Biddle, 2 liiason, 473, Fed. Cas. 1391, on question of removal; dissenting
opinion in Ex parte Crane, 5 Pet. 200, 205, 8 L. Ed. 96, 98, as instance of
Supreme Court's appellate jurisdiction ; Baker v. ^Biddle, 1 Bald. 406, 409,
Fed. Cas. 764, on jurisdictional matters.
Cnder Virginia land act of 1779, survey without an entry is not sofllcient
foundation for title.
Approved in Latham v. Oppy, 18 Ohio, 110, 112, following rule; Patter-
son V. Bradford, Hard. (Ky.) Ill, holding registering of survey equally
abortive if not in pursuance of an entry; Railroad v. Hoye, 2 Bland Ch.
261, holding survey made before warrant lodged with surveyor, void as
against regular entry and survey; Kendrick v. Dallum, 1 Overt. 499, as to
calls in an entry; Miller v. Page, 6 Call, 39, 40, 41, 42, where entry was
held too vague; Depew v. Howard, l.Munf. 301, where held sufficient.
Cited generally in Rich v. Elliot, 10 Vt. 215. And see Carson v. Hanway,
3 Bibb. 160, McGee v. Thompson, 1 Bibb. 133, 134, Beard v. Smith, 6 T. B.
Mon. 510.
Distinguished in Overton v. Campbell, 5 Hayw. 171, where two claims
rested upon different statutes.
Virginia land act provided metbod of acquiring title and courts could
not liold sufficient substitution of equivalent acts.
Approved in Campbell v. Galbreath, 1 Watts, 93, but upholding an earlier
entry although defective against later ; Reid v. Dodson, 1 Overt. 409, apply-
ing principle to statutory requirement as to notice.
Distinguished in Overton v. Campbell, 5 Hayw. I7l, where two claims
rested upon different statutes.
Fact that other claimant had actual notice of survey does not make tliat
equivalent to entry.
, Approved in Miller v. Paige, 6 Call, 36, 40, 41, and Latham v. Oppy, 18
Ohio, 110, following rule; Kerr v. Mack, 1 Ohio, 166, holding vague-
ness in entry not cured by actual notice to other claimant, and in Smith v.
Fultz, 4 Serg. & R. 479. Cited in general discussion as to entry and notice
in Mc Arthur v. Phoebus, 2 Ohio, 420, Jones v. Van Zant, 5 How. 225,
12 L. Ed. 127, Davis v. Bryant, 2 Bibb, 112.
One acquiring legal title with notice of another's cKiulty Is pro tanto
trustee^ But if no equity tlien lie is not trustee.
N
101 ^JNITED STATES v. SCHOONER PEGGY.' " 1 Or. 103-110
Approved in Johnson v. Georgia Loan etc. Co., 141 Fed. 597, bd^ia fid«
poxehaser of lands which had been previously conveyed by grantor tanst^
allege and prove want of notice and actnal payment of money independ-*
ently of recitals in deed; Dunlap v. Stetson, 4 Mason, 376, Fed. Cas. 4164,
holding that grantor afterward acquiring paramount title holds as trustee
for his grantee; Miller v. Aldrich, 31 Mich. 420, holding that certain
grantee held insurance policy as trustee for the mortgagee; Bnie v. Pol-
lock, 55 Miss. 314, holding legatees paid before creditors to be deemed
trustees for them; cited generally in consideration of innocent purchaser's
rights in equity in Boone v. Chiles, 10 Pet. 212, 9 L. Ed. 400, Perkins v.
Swank, 43 Miss. 358, and Byers v. Fowler, 12 Ark. 286, 54 Am. Dec. 288^
Caveat is remedy to prevent patent Issuing where statutory directions
liave been violated to Injury of commonwealtli.
Quoted approvingly in Miller v. Page, 6 Call, 39.
In case of doubt literal construction leading to an absurdity .rejected In
favor of more lil>eral which will effectuate object intended.
Cited in Weatherhead v. Bledsoe, 2 Overt. 379, following rule.
Miscellaneous. Cited in Hampton v. McGinnis, 1 Overt. 294, and Tumey
V. Young, 2 Overt. 268, to point that real property laws should be certain
and uniform; Pierpont v. Fowler, 2 Wood. & M. 31, Fed. Cas. 11,152, to
point that equitable remedy must be fuller or better than remedy at law;
McLaren v. Pennington, 1 Paige, 108, to point that State may change
remedy upon contract; erroneously in Muldrow v. Agnew, 11 Mo. 621.
1 Cr. 103-110, 2 Ifc Ed. 49, UNITED STATES V. SCHOONEB PEOOY.
Finality of decree of inferior courts
Cited in Sharon v. Hill, 11 Sawy. 308, 26 Fed. 389, holding Superior
Court judgment, pending on appeal not res judicata; Hills v. Sherwood,
33 Cal. 478, 479, holding that covenant in deed that title would be con-
firmed by Federal court, not satisfied until time of appeal had expired;
Cakes v. Rogers, 47 Minn. 39, 28 Am. St. Rep. 327, 49 N. W. 331, and Cary
V. Richardson, 35 La. Ann. 506, holding certain judgment fin^ and not
interlocutory.
Treaty is part of supreme law and binding on Judiciary, thou^th affectli^
pending litigation.
Approved in Maiorano v. Baltimore etc. R. Co., 213 U. S. 273, 53 L. Ed.
795, 29 Sup. Ct. 424, nonresident alien not given right of action by treaty
with Italy for wrongful death of relative; De Lima v. Bid well, 182 U. S.
195, 45 L. Ed. 1055, 21 Sup. Ct. 752, holding Porto Rico not a foreign
State within meaning of tariff laws; United Shoe Machinery Co. v. Du-
plessis Shoe Mach. Co., 155 Fed. 845, 84 C. C. A. 76, treaty as construed by
act of Congress did not change term of patent expiring with British patent ;
Lone Wolf v. Hitchcock, 19 App. D. C. 329, courts cannot go behind treaty
to find out whether fraud and deception induced Indians to consent to it ;
Pollard V. i^bbe, 14 Pet. 412, 415, 10 L. Ed. 519, 520, in construing Spanish
treaty ceding Florida; Fellows v. Blacksmith, 19 How. 372, 15 L. Ed. 686,
• •
J ♦
t •
lCr.l03-liCr'. NOTES ON U. S. REPORTS. 102
..wJiere treaty with Seneca Indians was involved; In re Metzger, 17 Fed. Cas.
.' 254,* folding French treaty as to extradition to be enforced by the courts
•'/like an act of Congress; In re Race Horse, 70 Fed. 607, where Indian
arrested for violating game laws was reletused under treaty provisiqn;
Howell V. Fountain, 3 Ga. 179, 46 Am. Dec. 417, where Indian treaty pro-
vision as to land sale was held part of law to be observed ; Little v. Watson,
32 Me. 225, holding treaty provision as to Canadian boundary supreme
over provision of State Constitution ; In re Kaine, 14 Fed. Cas. 89, holding
treaty is in force as law without, any enabling act; State v. Foreman, 8
Yerg. 313, discussing history of Indian treaties at length; dissenting opin-
ion in Ex parte Crane, 5 Pet. 204, 8 L. Ed. 97, in general discussion.
Effect of treaties as laws and power to annul them by hostile legisla-
tion. Note, 81 Am. Dec. 539.
Distinguished in Sharon v. Sharon, 79 Cal. 647, 22 Pac. 30, refusing to
reverse State court judgment merely because it appeared that Federal
court had reached different conclusion.
VHiere private TighU are involved, courts struggle bard against retro-
spective construction of 14w.
Approved in Snow v. Union Pacific R. Co., 55 Colo. 180, 133 Pac. 1039,
giving retrospective operation to United States statute allowing individuals
to obtain title to railroad right of way by adverse possession under State
laws ; In re Kean, 2 Hughes, 329, Fed. Cas. 7630, refusing to apply a statute
retrospectively in cases where it would affect vested rights of individuals;
Gilliland v. Phillips, 1 S. C. 155, holding contract governed by usury law
in forc^ when entered into; State v. Dews, Charlt. (Ga.) 406, upholding
act transferring custody of jail from sheriff; Schenck v. Peay, 21 Fed. Cas.
673, sustaining proposition that Congress may validly pass retrospective
laws; dissenting opinion in Rich v. Flanders, 39 N. H. 367, ai*guing that
retrospective law affecting remedies might be invalid.
Distinguished in Union Pacific R. Co. v. Snow, 231 U. S. 211, 58 L. Ed.
188, 34 Sup. Ct. 104, retrospective operation not' given to United States
statute allowing individuals to obtain title to unused portion of railroad
right of way by adverse possession under State law ; dissenting opinion in
Snow V. Union Pacific R. Co., 55 Colo. 181, 133 Pac. 1040, majority holding
that retrospective operation should be given to United States statute allow-
ing individuals to obtain title to unused portion of railroad right of way
by adverse possession under State statute.
Effect of change of law pending appeal
Approved in Gulf etc. Ry. Co. v. Dennis, 224 U. S. 506, 56 L. Ed. 861,
32 Sup. Ct. 542, intervening decision of State court that statute allowing
attorneys' fees is invalid causes United States court to reverse decision
of State court valid where rendered; Dinsmore v. Southern Express Co.
etc., 183 U. S. 120, 46 L. Ed. 113, 22 Sup. Ct. 46, applying rule in connec-
tion with passage of act of 1901, excluding e^q^ress companies from opera-
tion of war revenue act of 1898, pending appeal of cause; Pelt v. Payne,
90 Ark. 603, 184 Am. St. Rep. 45, 30 S. W. 427, reversing decision by lower
court that mortgage was void, since retroactive act passed pending appeal
103 XJNITED STATES v. SCHOONER PEGGY. 1 Cr. 103^110
▼alidated defeetive mortgages ; People v. Bank of San Luis Obi8X)0, 159 Cal.
68, Ann. Gas. 1912B, 1148, 37 L. B. A. (N. S.) 984, 112 Pac. 867, final judg-
ment of appellate court that bank ia insolvent cannot be destroyed by
repeal of statute supporting it pending decision in collateral proceeding;
Vance ▼. Rankin, 194 111. 628, 62 N. E. 808, applying rule where statute
allowing disconnection of territory from municipalities was repealed; Mc-
Dowell ▼. Fuller, 183 Mich. 644, 646, 160 N. W. 354, 355, statute passed,
pending appeal^ withdrawing consent of State to be sued takes away sup-
port of judgment against warden of reformatory in breach of contract
case; Simpson v. Stoddard Co., 173 Mo. 476, 73 S. W. 714, applying prin-
ciple where pending proceedings to quiet title to swamp-lands irregularly
conveyed by county curative act w^&s passed; McKennon v. State, 42 Tex.
Cr. 373, 96 Am. St. Bep. 802, 60 S. W. 42, applying principle to appeal from
conviction in Justice Court ; State v. Abraham, 64 Wash. 628, 117 Pac. 504,
statute passed pending appeal and expressly validating defective commer-
cial waterway district organized under former act controls decision of
appellate couart; Chicago etc. R. R. Co. v.. People, 219 111. 413,^ L. R. A.
(N. 8.) 508, 76 N. E. 572, majority holding where Supreme Court finally
adjudges particular tax invalid, legislature cannot validate levy and make
tax collectible; State v. Baltimore etc. R. R., 3 How. 552, U L. Ed. 722,
where repeal of law imposing a penalty was held a remission thereof;
First etc. Bank v. Henderson, 101 Cal. 310, 35 Pac. 899, where act imposing
penalty was repealed before decision in appellate court and repealing act
was held applicable; Coles v. Madison Co., Breese (111.), 159, 160, 12 Am.
Dec 166, 167, where penal law was repealed after verdict and before judg-
ment and was held bar to judgment; Thompson v. Basset, 5 Ind. 536,
affirming that suit for penalty cannot be sustained after repeal of law
creating it; Exeter v. Stratham, 2 N. H. 104, and State v. Norwood, 12
Md. 206, reversing a judgment based on stamp act thereafter repealed;
Mayor v. State, 30 Md. 119, penal law. was repealed after indictment and
repeal was held bar; Day v. Day, 22 Md. 539, reversing judgment allowing
patent on ground of subsequent law prohibiting it; State v. Edward, 5
Mart. (O. S.) 475, dismissing appeal on this ground. The principle is ap-
plicable where the statute repealed is criminal and necessitates the de-
fendant's discharge: Keller v. State, 12 Md. 326, 327, 71 Am. Dec. 597,
598 ; Wall v. Stete, 18 Tex. 697, 70 Am. Dec. 306 ; Mahoney v. State, 5 Wyo.
525, 63 Am. St. Bep. 67, 42 Pac. 15. Cited in general discussion and more
generally applied in Price v. Nesbit, 29 Md. 266, Wade v. St. Mary's
School, 43 Md. 181, Montague v. State, 54 Md. 483, Turner v. Bryan, 83
Md. 374, 35 Atl. 21, Bayard v. McLane, 3 Harr. (Del.) 233, Allen v.
Farrow, 2 Bail. L. 587 , State v. Taylor, 2 McCord, 490.
Distinguished in Wheelock v. Myers, 64 Kan. 52, 67 Pac. 633, holding
lower court erred in following mandate when statute upon which it was
based was repealed pending proceeding.
Miscellaneous. Cited in Ledgarwood ▼. Picket, 1 McLeani 145, Fed. Cas.
8175, not in point.
1 Cr. U0^137 NOTES ON U. S. REPORTS. 104
1 Cr. 110-117, 2 L. Ed. 61, IKEflliEB ▼. SHEHEE.
Plea at term next exunilng Judgment by default ia permissible, Imt at
subsequent term It is discretionary.
Cited in Martin v. Baltimore etc. R. R., 151 U. S. 680, 38 L. Ed. 816,
14 Sup. Ct. 538, where petition for removal after prescribed time was
denied; Dibble v. Rogers, 2 Mich. 407, holding same rale as to discretion
applicable in granting of new trial.
I Or. 117-137, 2 L. Ed. 63, TUBNEB ▼. FENDALIi.
Fact of insolvency is matter in pals to be proved by parol and other
testimony.
Followed in Dunlop v. Munroe, 1 Cr. C. C. 541, Fed. Ca^. 4167, and
Noland v. Moore, 2 Litt. (Ky.) 368, allowing proof by parol that A B was
justice of peace; Williams v. Clay, 5 Litt. 57, allowing parol proof of dis-
charge in insolvency; Phelps v. Burton, 6 T. B. Mon. 37, holding such dis-
charge not within issue of nul tiel record.
To sustain exception to rejection of testimony its relevancy must be made
affirmatively to appear.
Cited in Duffee v. Pennington, 1 Ala. 508, Crenshaw v. Davenport, 6
Ala. 392, 41 Am. Dec. 57, Carter v. Bennett, 4 Fla. 339, Jackson v. Roberts,
II Wend. 429, and Polk v. Robertson, 1 Overt. 457, following rule; Blair
V. Cofifman, 2 Overt. 177, 5 Am. Dec. 660, following rule on relevancy of
testimony.
Money may be seized upon execution.
Approved in Citizens' Banking Co. v. Ravenna Nat. Bank, 234 U. S. 365,
58 L. Ed. 1354, 34 Sup. Ct. 806, failure of insolvent to vacate preference
for four months after levy of execution is not final disposition of property ;
Spenoer v. Blaisdell, 4 N. H. 201, 17 Am. Dec. 414, holding bank bills may
be attached ; Sheldon v. Root, 16 Pick. 509, 28 Am. Dec. 267, holding sale
thereof unnecessary; Handy v. Dobbin, 12 Johns. 220, with express ap-
proval ; Holmes v. Nuncaster, 12 Johns. 396, upholding levy on bank notes ;
United States v. Canoe, 5 Hughes, 493, Fed. Cas. 14,718, holding money
included within prohibition against goods and chattels; Corbett v. State,
31 Ala. 340, holding bank bills may be subject of larceny ; Doyle v. Sleeper,
1 Dana, 535, 543, 559, and Howe v. Waysman, 12 Mo. 174, 49 Am. Dec. 130,
holding fraudulent, as against creditors, purchase by father in his chil-
dren's name; Edmonson v. Meacham, 50 Miss. 39, as to similar deed in
name of wife and children ; Harris v. Moody, 30 N. Y. 277, 282, 86 Am. Dec.
383, holding bank notes ^able along with rest of cargo to contribute to
general average loss; Citizens' Bank v. Nantucket Co., 2 Story, 52, Fed.
Cas. 2730, arguendo.
Execution cannot be levied upon money of defendant when in hands of
sheriif collected upon Judgment in such defmdant's favor in another suit.
Approved in In re Kenney, 97 Fed. 556, holding proceeds of execution
levied within four months of bankruptcy belong to bankrupt estate; Com-
merce Vault Co. ▼. Barrett, 222 111, 176, 177, 78 N. E. 48, 49, where mort-
105 TURNER v. TEND ALL. 1 Cr. 117-137
gBged leasehold was sold on foreolDSure and holder of judgment against
mortgagor, obtained after foreclosure redeemed, had leasehold resold, dther
judgments obtained by judgment creditor after resale are not lien on
excess; Eaton v. McElhonc, 6 Kan. App. 226, 227, 49 Pac. 695, holding
sheriff cannot execute on moneys in his own hands collected by him on
former execution; Fulghum v. Williams Co., 114 Ga. 646, 40 S. E. 696,
holding mortgagee of chattels cannot under power of sale in moi-tgage sell
goods when in hands of sheriff by virtue of execution; Hardy ▼. Tilton,
68 Me. 196, 28 Am. Rep. S6, following rule; Barnett v. Bass, 10 Ala. 954,
holding contrary practice of coroner error and declaring that he should have
made special return setting forth facts; Reddick v. Smith, 3 Scam. (III.)
452, applying rule to attachment proceedings; Campbell v. Hasbrook, 24
111. 246, holding question settled in Illinois; Winton v. State, 4 Ind. 323,
although statute authorized levy on money in general terms; Hooks v.
York, 4 Ind. 637, holding judgment money in court's hands not leviable;
Stratton v. Ham, 8 Ind. 90, holding executor may be garnished as to un-
ascertained distributive shares of an estate; County of Polk v. Sypher,
17 Iowa, 366, 86 Am. Dec. 672, holding contra, although not distinguishing
main ease where writ was not required to be returned into court; First
V. Miller, 4 Bibb (Ky.), 312, Harding v. Stevenson, 6 Har. & J. 267, and
Jones V. Jones, 1 Bland Ch. 461, 18 Am. Dec. 842, holding that sheriff
could not be compelled to return money into another court than that of the
execution ; Wilder v. Bailey, 3 Mass. 291, expressly approving rule ; Thomp-
son V. Brown, 17 Pick. 464, penalizing sheriff for contrary practice ; Marvin
V. Hawley, 9 Mo. 384, 388, 48 Am. Dec. 549, noting and criticising contrary
rule ; Curling v. Hyde, 10 Mo. 376, denying that administrator can be gar-
nished for property in his hands ; Ex parte Fearle, 13 Mo. 468, 63 Am. Dec.
155, approving act of sheriff in obtaining order of court permitting appli-
cation of such moneys to the second writ; State ex rel. v. Boothe, 68 Mo.
549, 551, hofding money in sheriff's custody from an attachment afterward
dissolved could not be levied upon by execution; Crane v. Freese, 16
N. J. L. 307, following rule, although statute authorized execution upon
moneys in general terms ; Davis v. Mahany, 38 N. J. L. 107, holding, how-
ever, that execution moneys may be attached; Miller v. Adsit, 16 Wend.
363 , Baker v. Ken worthy, 41 N". Y. 217, reviewing New York cases ; State
Y. Lea, 8 Ired. L. 95, 96, Dawson v. Holcomb, 1 Ohio, 276, 13 Am. Dec.
619, and Means v. Vance, 1 Bail. L. 40, expressly approving rule; Hill v.
Lacrosse etc. R. R., 14 Wis. 293, 80 Am. Dec. 784, collecting cases and
noting jurisdictions contra ; Reno v. Wilson, Hempst. 93, Fed. Cas. 11,700a,
applying rule; Clarke v. Shaw, 28 Fed. 356, 24 Blatchf. 97, noting that
Vermont rule is contra, but following principal case as to money in hands
of United States marshal in that State. The Vermont court adopted the
rule in Prentiss v. Bliss, 4 Vt. 516, 24 Am. Dec. 632, but afterward ruled
oontra; Summers v. Caldwell, 2 Nott & McC. 342, but upholding act of
sheriff in levying execution upon such execution money; Wintercast v.
Smith, 4 Rawle, 185, arguendo.
Bight to garnish or attach proceeds of execution sale in hands of
sheriff. Note, 48 L. R. A. (N. S.) 571, 672.
1 Cr. 117-137 NOTES ON U. S. REPORTS. 106
Distingaished in dissenting opinion in Eaton v. McElhone, 6 Kan. App.
228, 49 Pac. 696, majority holding sheriff cannot execute on moneys in his
own hands collected by him on former execution ; Dunlop v. Patterson Ins.
Co., 74 N. Y. 150, SO Am. Rep. 286, holding money deposited with court
clerk in lieu of undertaking on appeal liable to attachment.
Denied in Dolby v. MullinSi 3 Humph. 437, 438, 89 Am. Dec. 181, adopt-
ing rule that sherifE may so levy on execution moneys; Hamilton v. Ward,
4 Tex. 367, 369, Pace v. Smith, 57 Tex. 560, 561, Mann v. Kelsey, 71 Tex.
613, 10 Am. St. Rep. 803, 12 S. W. 45^ and Pawley v. GainS| 1 Overt. 209,
following Tennessee rule.
Execution creditor has ne property In or title to any specific pieces of
money realized by sheriff under execution. *
Approved in In re Easley, 93 Fed. 421, holding bankruptcy act 1898,
section 67, does not affect lien of execution levied within four months but
founded on judgment recovered two- years before; Carlton v. Conroy, 21
Cal. 172, holding that creditor cannot follow such moneys deposited by
sheriff with his banker; Scott v. Smith, 2 Kan. 445, holding depositor in bank
had no leviable property in any specific money; Adams v. Lane, 38 Vt.
646, holding execution moneys deposited by sheriff with his banker not
attachable.
Sheriff having money collected for execution creditor against whom he
holds execution must return money into court, and not apply it on execution.
Approved in Bank of Minnesota v. Hayes, 11 Mont. 538, 539, 540, 29
Pac. 91 , Hickman v. Matlock, 1 Overt. 262, following rule ; Clarke v. Lane-
more, 188 U. S. 489, 47 L. Ed. 558, 23 Sup. Ct. 364, holding proceeds of exe-
cution levy in hands of sheriff at time of bankruptcy belong to bankrupt
estate; In re Kenney, 97 Fed. 557, holding proceeds of execution levied
within four months of bankruptcy belong to bankrupt estate; The Fanny,
8 Fed. Cas. 992, applied in distribution of remnants and surpluses in ad-
miralty; Acker v. Ledyard, 8 N. Y. 63, applying principle in holding that
sheriff may protect himself against hostile claimants to execution moneys
by paying into court; Clerk's Ofi&ce v. Allen, 7 Jones L. 158, holding that
court may order application of plaintiff's execution money in sheriff's
hands, to payment of his costs; First etc. Bank v. Hanchett, 126 111. 505,
16 N. E. 909, Harding v. Stevenson, 6 Har. & J. 267, Dennison v. Circuit
Judge, 37 Mich. 284, Jones v. Jones, 1 Bland Ch. 461, 18 Am. Dec. 342,
and Briggs v. Planters' Bank, 1 Freem. Ch. 585. holding sheriff cannot be
required to return moneys into another court than that of execution;
Stebbins v. Walker, 14 N. J. L. 93, 97, 100, 26 Am. Dec. 601, 505, 508,
remarking that sheriff may pay money over where no conflicting claims, but
is entitled to protect himself by paying it into court; Williams v, Rocers,
5 Johns. 167, remarking that surplus moneys of defendant in execution
in sheriff's hands might be subjected to a second execution; Dewey v.
White, 65 N. C. 228, arguendo.
Miscellaneous. Distinguished in Williamson v. Ringgold, 4 Cr. C. C.
59, Fed. Cas. 17,755, as not in point on question of replevin. Cited in
107 MARBURY v. MADISON, 1 Cr. 137-180
Baker ▼• Allen, 2 Overt. 176, on point that regularity of summary pro-
ceedings ought to be favored in appellate eourt.
1 Or. 187-180, 2 L. Bd. 60, MABBXTBT ▼. MADISON.
Since al&rmative words must often 1>6 miderstood as implying a negative,
file grant of original jurisdiction to the Supreme Oourt contained in the Oon-
stltation. Implies that its original jurisdiction shall he restricted to the con-
stitatioiial grant; and an act of Oongress authorizing an additional original
Jurisdiction to issae mandamus and other writs is pro tanto void. So also it
leems that the grant of original Jurisdiction in the specified instances implies
a prohlhitlon against the concurrent exercise of any of that Jurisdiction hy
other courts.
The proposition stated in the syllabus has been approved in the follow-
ing recent cases : In re Winn/213 U. S. 466, 58 L. Ed. 876, 29 Sup. Ct. 515,
mandamus compelling Federal Circuit Court having no jurisdiction to re-
mand cause and State court is part of appellate jurisdiction of this court;
Storm Lake Tub ft Tank Factory v. Minneapolis etc. R. Co., 209 Fed. 902,
action against railroad to recover damages to interstate shipment through
negligence not removable to Federal court as violation of Interstate Com-
merce Act and amendments; United States v. Mills, 11 App. D. C. 511,
certiorari is proper means to restrain United States commissioner claiming
right to release person sentenced by police court of District of Columbia
under Federal law; Seymour v. South Carolina, 2 App. D. C. 245, Court of
A])pea]s has .no appellate jurisdiction to review decision of commissioner
refusing r^striation of trademark ; Williams v. Louisville etc. R. Co., 176
Ala. 657, 58 South. 324, certiorari is appropriate remedy to review decisions
of Conrt of Appeals by Supreme Court under constitutional power to su-
perintend and control inferior courts; Pacific Telephone & Telegraph Co.
r. Eshleman, 166 Cal. 647, 690, Ann. Oas. 19150, 882, 50 L. R. A. (N. S.)
58, 137 Pac. 1120, 1138, legislature has power under State Constitution to
limit jurisdiction of courts by giving right of review of railroad commis-
sion's orders to Supreme Court only; Ex parte Cox, 44 Fla. 540, 61 L. R. A.
784, 33 South. 610, writ of error does not lie from Supreme Court to review
judgment in habeas corpus rendered by justice thereof in habeas corpus;
State V. Anheuser-Busch Brewing Assn., 76 Kan. 193, 90 Pac. 780, court,
having original jurisdiction in quo warranto, may issue injunction to re-
strain use and transfer of property, and appoint receiver for property
owned and used by foreign brewing company unlawfully conducting busi-
ness in State ; In re Burnette, 73 Kan. 623, 85 Pac. 580, holding statute re-
lating to appeals in disbarment cases does not authorize trial de novo, and
is not void as extension of original jurisdiction; Sanders v. Common-
wealth, 117 Ky. 7, 111 Am. St. Rep. 822, 1 L. R. A. (N. S.) 982, 77 S. W.
359, upholding act of 1899, prohibiting sale of milk from cows fed on dis-
tillery slop; State v. Assur. Co. of America, 251 Mo. 299, 158 S. W. 647,
court, having original jurisdiction in quo warranto, may issue temporary
injunction to prevent violation of anti-trust law of State by foreign fire in-
surance company; Mott v. Commissioners, 126 N. C. 875, 36 S. E. 333,
holding acts of 1899, chapter 371, infringing on criminal jurisdiction of
1 Cr. 137-180 NOTES ON U. S. REPORTS, 108
Superior Courts, void ; State v. Cole, 4 Okl. Cr. 38, 109 Pac. 742^ Criminal
Court of Appeals, in the exercise of its appellate jurisdiction, has power
to issue writ of mandamus directed to an inferior court; State v. Huston,
21 Okl. 789, 97 Pac. 985, Governor under constitutional power to execute
laws of State has right to bring suit in name of State, and by writ of pro-
hibition prevent court from exercising unauthorized judicial power; Hig-
gins V. Tax Assessors, 27 R. I. 405, 63 Atl. 36, act giving Superior Court
jurisdiction of prerogative writs does not infringe constitutional power of
Supreme Court to issue these writs where power of latter is not exclusive;
State v. Ansel, 76 S. C. 405, 413, 11 Ann. Cas. 613, 57 S.'E. 190, 192, cerr
tiorari will not lie to review Governor's removal of State dispensary board,
when such removal was within his discretion; Redmond v. Smith, 22 T^ex.
Civ. 324, 54 S. W. 637, holding State courts have jurisdiction of actions by
or against consuls; Windsor v. Bridges, 24 Wash. 547, 64 Pac. 782, holding
prohibition does not lie from Supreme Court to State land commission;
as the syllabus shows, the Supreme Court held in this case that its original
jurisdiction could not be enlarged by Congress.
Marbury v. Madison has been deemed to have "settled this construction
of the Constitution . . . and no one wha has examined the subject now
questions it." Florida v. Georgia, 17 How. 505, 609, 15 L. Ed. 199, 201.
See, also, Harrison v. Nixon, 9 Pet. 510, 530, 9 L. Ed. 211, 218 ; United States
v. New Bedford Bridge, 1 Wood. & M. 440, Fed. Cas. 15,867; California v.
Southern Pacific Co., 157 U. S. 261, 89 L. Ed. 695, 15 Sup. Ct. 604; Jim v.
State, 3 Mo. 147, 149 ; Ex parte Vallandigham, 1 Wall, 252, 17 L. Ed. 593 ;
Virginia v. Rives, 100 U. S. 327, 25 L. Ed. 672. And if not by 'Congress then
not by the courts themselves. Accordingly it has been held that certiorari
would not issue from it to review proceedings of a military commission or<-
dered by a general officer of the United States army. Ex parte Vallandig-
ham, 1 Wall. 252, 17 L. Ed. 593. And that parties may not come in as in-
terveners when a prize cause is before the Supreme Court, who were not
parties below, the Supreme Court having no original jurisdiction in prize
causes. The William Bagaley, 5 Wall. 412, 18 L. Ed. 591. And in a more
recent case the proposition is relied on in denying the original jurisdiction
of the Supreme Court in a suit between a State and citizens of the same as
well as of a foreign State. California v. Southern Pacific Co., 157 U. S. 261,
39 L. Ed. 695, 15 Sup. Ct. 604. This fact has also been pointed out as one
of the peculiarities of the Supreme Court in a case discussing the limited
character of the Federal jurisdiction and holding that a Federal criminal in-
dictment must be sustainable by the provisions of Federal law. It is also
made the basis for the proposition that it is incompetent for the Supreme
Court, upon motion in a mandamus proceeding pending before it on appeal,
to substitute the name of a new incumbent as defendant in place of that
of his predecessor in office; United States v. Boutwell, 17 Wall. 609, 21
L. Ed. 722, 3 MacA, 177, 178.
A further and most important consequence of this rule that the original
jurisdiction of the Supreme Court may not be enlarged is the fact that the
Supreme Court is thus cut off from power to issue the prerogative writs
except as incident and auxiliary to the exercise of a jurisdiction already
109 MARBURT V. MADISON. ICr; 137-180
otherwise acquired. It can, therefore, only issue mandamus in the exer-
dise of original jurisdiction in the few cases "where a State or ambassador
or other public minister, or a consul or a vice-consul is a party," since it
is only in these cases that it has original' jurisdiction at all; Virginia v.
Rives, 100 U. S. 327, 25 L. Ed. 672. These restrictions on the power to
issue mandamus were specifically decided in Marbury v. Madison, andvthe
citations concerned therewith are, therefore, more numerous. As to the
proposition that the Supreme Court has no jurisdiction to issue mandamus
in the exercise of its original jurisdiction, except as noted al)ove, there
seems to have been no subsequent diversity of opinion. Apparently but
one other case has reached the Supreme Court upon this question. Mc-
Cluny v. Silliman, 2 Wheat. 370, 4 L. Ed. 263. - Marbury v. Madison has
"ever since been accepted as fixing the construction of this part of the
Constitution." Ex parte Yerger, 8 Wall. 97, 19 L. Ed. 886; see, also, Riggs
v. Johnson Co., 6 Wall. 188, 18 L. Ed. 774; Ex parte Newman, 14 Wall.
165, 20 L. Ed. 879; United States v. Boutwell, 17 Wall. 609, 21 L. Ed. 722.
There has, however, been considerable litigation in the settlement of
other phases of the question. It was early decided that the Circuit Courts
of the United States were similarly without power to issue mandamus to
executive officers. Mintife v. Wood, 7 Cr. 504, 3 L. Ed. 420 ; M'Clung v.
Silliman, 6 Wheat. 604, 5 L. Ed. 341, Van Antwerp v. Hulburd, 7 Blatchf.
426, 433, Fed. Cas. 16,826, State ex rel. Attorney-General v. Cunningham,
81 Wis. 603, 51 N. W. 736; except in the exercise of a jurisdiction already
otherwise acquired — as, for instance, to compel county officers to levy a
tax to pay railroad bonds, it having been duly decided that the bonds were
a valid obligation and this the proper remedy. Riggs v. Johnson Co., 6
Wall. 188, 18 L. Ed. 774. But much of the effect of this ruling was coun-
teracted by the further holding of another early case, that the jurisdiction
of the Circuit Court for the District of Columbia is more extensive. And
it is well settled that that tribunal and its successor, the Supreme Court
for the district, may issue mandamus to officers of the executive depart-
ment of the government to compel the performance of mere ministerial
duties. The leading case arose upon a petition for a mandamus to the
postmaster-general to compel him to credit applicants with certain sums
of money on mail contracts as provided by special act of Congress. The
Circuit Court for the District of Columbia took jurisdiction and ordered
the mandamus to issue. Upon appeal this decision was affirmed thougli
not without vigorous dissent on the part of three members of the court.
The cases holding that the Circuit Courts in the several States had no
jurisdiction to issue mandamus except in the exercise of a jurisdiction al-
ready otherwise acquired, were distinguished upon the ground that Con-
gress had not conferred upon them all of the judicial power of the United
Stales as it had upon the Circuit Court for the district; and the decision
was rested mainly upon the ground that as the common law of Maryland
passed with the ceded territory and continued a part of the law of the
District of Columbia, this law, unless repealed in some way, continued in
force and gave a right to the remedy of mandamus wherever such a right
existed at common law. Kendall v. United States, 12 P^t. 617, 618, 621,.
1 Cr. 137-180 NOTES ON U. S. REPORTS. 110
651, 9 L. Ed. 1218, 1219, 1231 , affirming United States v. Kendall, 5 Cr.
C. C. 163, 175, 183, 187, 190> 259, Fed. Cas. 15,517 ; see, also, State ex rel.
V. Cunningham, 81 Wis. 503, 51 N. W. 736. Mandamus and the other State
writs have issued from that court to the executive officers of the Federal
government in a great variety of cases, which it is not necessary to note
at greater length in this connection.
But although the decision in the leading case frustrated the intention of
Congress to confer upon the Supreme Court power to mandamus executive
'officers of the United States, the prohibition of the Constitution was held
to offer no impediment to the issuance of the writ to other Federal courts.
And this, because cases in which mandamus issues to such courts are cases
involving the exercise of appellate and not original jurisdiction. Ex parte
Crane, 5 Pet. 200, 8 L. Ed. 96 ; Ex parte Newman, 14 Wall. 165, 20 L. Ed.
879 ; Virginia v. Rives, 100 U. S. 327, 25 L. Ed. 672. The citations do not
lead us into an extensive discussion of the circumstances under which man-
damus issues in accordance with the principles and usages of law to lower
courts. In one of the citations it issued to compel a judge to sign a bill
of exceptions. Ex parte Crane, 5 Pet. 189, 8 L. Ed. 92. And in another
to the Federal Circuit Court at the instance of the Virginia State court to
compel the removal of a cause of which the Federal court had improperly
taken cognizance, in to the State tribunal. Virginia v. Rives, 100 U. S.
313, 25 L. Ed. 667. But it will not issue to control the discretion of a
lower court. Ex parte Newman, 14 Wall. 166, 20 L. Ed. 879. In that case
Mr. Justice Clifford, speaking for the court, thus states the rule : "Applica-
tions for mandamus to a subordinate court are warranted by the principles
and usages of law in cases where the subordinate court, having jurisdiction
of a case, refuses to hear and decide the controversy, or where such a
court, having heard the causes, refuses to render judgment or enter a de-
cree in the case ; but the principles and usages of law do not warrant man-
/ damns to re-examine a judgment or decree of a subordinate court in any
case, nor will the writ be issued to direct what judgment or decree such
a court shall render in any pending case, nor will the writ be issued in any
case if the party aggrieved may have a remedy by writ of error or appeal,
as the only office of the writ when issued to a subordinate court is to direct
the performance of a ministerial act, or to command the court to act in a
case where the court has jurisdiction and refuses to act, but the super-
visory court will never prescribe what the decision of the subordinate
court shall be, nor will the supervisory court interfere in any way to con^
trol the judgment or discretion of the subordinate court in disposing of
the controversy." In a learned opinion in Virginia v. Rives, 100 U. S. 313,
329, 25 L. Ed. 673, Mr. Justice Field also enters into a discussion of this
point, and holds that 'It is well settled that the writ of mandamus will
issue to correct the' action of subordinate or inferior courts or judicial
officers, where they have exceeded their jurisdiction and there is no other
remedy. *It issues,' says Blackstone, 'to the judges of any inferior court,
commanding them to do justice according to the powers of their office,
whenever the same is delayed. For it is the peculiar business of the Court
of King's Bench to superintend all inferior tribunals, and therein to en-
Ul MARBURY v. MADISON. 1 Cr. 137-180
force the due exercise of all those judicial or ministerial powers with which
the crown or the legislature have invested them; and this not only by re-
straining their excesses, but also by quickening their negligence and obvi-
ating the denial of justice/ 3 Bl. Com. 110." Accordingly it was there
held the proper remedy to reinstall the jurisdiction of a State court where
a Federal Circuit Court had improperly allowed a removal.
Although concerned primarily with the question of jurisdiction to issue
mandamus, the reasoning of the leading case extends equally to the writ
of habeas corpus; and the issuance of that writ by the Supreme Court,
except in those cases in which it has original jurisdiction, must be justified
as an exercise of appellate jurisdiction. Ex parte BoUman, 4 Cr. 100, lOt),
2 L. Ed. 563, 665; Ex parte Watkins, 7 Pet. 572, 8 L. Ed. 788; In re Mat-
ter of Metzger, 5 How. 191, 12 L. Ed. Ill ; In re Kaine, 14 How. 119, 128,
14 L. Ed. 351, 355; Ex parte Wells, 18 How. 317, 15 L. Ed. 426; Ex parte
Yerger, 8 Wall. 97, 19 L. Ed. 336; Ex parte Virginia, 100 U. S. 341, 25
L. Ed. 677; Ex parte Clarke, 100 U. S. 408, 25 L. Ed. 728; In re McDonald,
16 Fed. Cas. 25. It has, however, uniformly been held that the issuance
of this writ does involve an exercise of appellate jurisdiction. 'It is
a revision of a decision of an inferior court by which a citizen has been
committed to jail," observed Chief Justice Marshall in one of the earliest
of these cases. "It has been demonstrated at the bar that the question
brought forward on habeas corpus is always distinct from that which is
involved in the cause itself. The question whether the individual shall b^
imprisoned is always distinct from the question whether he shall be con-
victed or acquitted of the charge on which he is to be tried,' and, therefore,
these questions are separated and may be decided in different courts. The'
decision that the individual shall be imprisoned must always precede the
application for a writ of habeas corpus, and this writ must always be for
the purpose of revising that decision, and, therefore, appellate in its na-
ture." Ex parte Bollman, 4 Cr. 101, 4 L. Ed. 563. In a later case Mr.
Justice McLean was of opinion that "there is some refinement in denomi-
nating that an appellate power which is exercised through the instrumen-
tality of a writ of habeas corpus" (In re Metzger, 5 How. 191, 12 L. Ed.
Ill); though he makes no question but that such was the settled rule of
law. The case decided that the writ would not issue to inquire into an
order of commitment made by a district judge at chambers, as the court
had no appellate sux)ervision over such an order; but the anithority of the
case "has been much shaken." In re Kaine, 14 How. 103, 14 L. Ed. 345;
Ex parte Yerger, 8 Wall. 85, 19 L. Ed. 332; Ex parte Virginia, 100 U. S.
341, 25 L. Ed. 677. And it seems to be regarded as sporadic and not in
harmony with the general tendency of the cases which rather incline to an
extension of the jurisdiction to issue habeas corpus to all commitments
made by officers exercising any part of the judicial power of the United
States.
In a number of cases habeas corpus has issued to the Circuit Courts.
Ex parte Wells, 18 How. 317, 15 L. Ed. 426 ; Ex parte Watkins, 7 Pet. 572,
8 L. Ed. 788; Ex parte Yerger, 8 Wall. 85, 19 L. Ed. 332; Ex parte Clarke,
100 U. S. 408, 25 L. Ed. 728. The writ of habeas corpus may even issue
1 Cr. 137-180 NOTES ON U. S. REPORTS. 112
in cases not ma4^ cognizable by writ of error (Ex parte Clarke, 100 U. S.
408, 25 L. Ed. 728) ; or appeal (Ex parte Yerger, 8 Wall. 85, 19 L. Ed.
332). It has also issued "in favor of liberty" where error would admit-
tedly have been a more appropriate method of procuring a review. Ex
parte Virginia, 100 U. S. 343, 25 L. Ed. B7B. And it has been held that a
writ issued returnable to a justice of tne Supreme Court might be tried
by the whole court if it was a proper case for the exercise of its appellate
jurisdiction. Ex parte Clarke, 100 U. S. 408, 25 L. Ed. 728.
In denying the argument that certiorari is coextensive with mandamus,
the Supreme Court of New Jersey remarked in an early case that whila the
right to mandamus the Secretary of State was decided by the leading case,
it could scarcely be held that certiorari would have been a proper method
of reviewing the action of that officer, had he erroneously granted* Mr.
Marbury's commission. Whitehead v. Gray, 12 N. J. L. 36, 40.
As has been seen above, Marbury v. Madison settled the proposition that
the original jurisdiction of the Federal Supreme Court cannot be enlarged
by Congress. The reasoning of the case goes further, however, and denies
the right of Congress to give appellate jurisdiction where the Constitution
confers original.
This second proposition the courts have had to modify and explain. A
case came before the Supreme Court, on appeal, a few years after the de-
cision in Marbury v. Madison, in which the State of Virginia and one of
its citizens were parties, the question at issue involvii^g the construction
of an act of Congress. It was urged that as the> Supreme Court had origi-
nal jurisdiction in cases in which a State was a party, this excluded its
appellate jurisdiction. But the Court held otherwise, and decided that the
original jurisdiction of the Supreme Court in cases in which a State was
a party referred only to those cases in which the Sup];pme Court obtained
jurisdiction , by reason of the character of the parties, and not at all to
those cases in which the Federal jurisdiction attached, because the question
involved arose under the Constitution,- treaties Or laws of the United
States. Referring to the Constitution, based upon Marbury v. Madison,
the court, speaking again by Chief Justice Marshall, observed : "The truth
is that where the words confer only appellate jurisdiction, original juris-
diction is most clearly not given; but where the words admit of appellate
jurisdiction, the power to take cognizance of the suit originally, does not
necessarily negative the power to decide upon it on an appeal, if it may
originate in a different court.
"It is, we think, apparent, that to give this distributive clause the inter-
pretation contended for, to give to its affirmative words a negative opera-
tion, in every possible case, would in some instances defeat the obvious
intention of the article. . . . The court may imply a negative from affirma-
tive words where the implication promotes, not where it defeats the in-
tention." Cohens v. Virginia, 6 Wheat. 397, 398, 5 L. Ed. 289, 11 Wheat.
472, 6 L. Ed. 523. Again, speaking directly of the leading case, the chief
justice observes : "It is a maxim not to be disregarded that general expres-
sions in every opinion are to be taken in connection with the case in which
those expressions are used. If they go beyond the case they may be re-
/
*
I
U3 MABBURY v. MADISON. 1 Cr. 137-180
speeted, but ought not to control the judgment in a subsequent suit when
the very pQJnt is presented for decision. The reason of this maxim is ob-
vious. The question actually before the court is investigated with care
and considered in its full extent. Other principles which may serve to
illustrate it are considered in their relation to the case decided, but their \
possible bearing on all other cases is seldom completely investigated."
Latei* cases have not, however, left even this much of the/ doctrine of to
exclusive original jurisdiction. The judiciary act of 1789, invested the
District Courts of the United States with "jurisdiction exclusively of the
courts of the several States, of dll suits against consuls or vice-consuls."
And this provision was early declared constitutional, notwithstanding the
fact that the Constitution confers upon the Supreme Court original juris-
diction. Qittings V. Crawford, Taney, 1, Fed. Cas. 5465; see, also, United
States y. Ravara, 2 Dall. 297, 1 L. Ed. S88; State v. De La Foret, 2 Nott
& McC. 217, 224; Davis v. Packard, 7 Pet. 284, 8 L. Ed. 687, 11 Wheat. 472,
6 L. Ed. 523; Bors v. Preston, 111 U. S. 258, 28 L. Ed. 421, 4 Sup. Ct. 410;
contra. Commonwealth v. Kosloff, 5 Seig. & R. 545, 549. In Gittings v.
Crawford, Chief Justice Taney observed, after an elaborate review of the
authorities, that "the true rule in this case is, I think, the rule which is
constantly applied to ordinary acts of legislation in which the grant of
jurisdiction over a certain subject matter to one court does not, of itself,
imply that that jurisdiction is to be exclusive. In the clause in question
there is nothing but mere affirmative words of grant, and none that import
a design to exclude the subordinate jurisdiction of other courts of the
United States on the same subject matter." Taney, 1, 9, Fed. Cas. 5465.
And the following significant language is used by Chief Justice Waite in
Ames V. Kansas: "In view of the practical construction put on this provi-
sion of the Constitution by Congress at the very moment of the organiza-
tion of the government, and of the significant fact that from 1789 until now
no court of the United States has ever in its actual adjudications deter-
mined to the contrary, we are unable to say that it is not within the power
of Congress to grant to the inferior courts of the United States jurisdiction
in cases where the Supreme Court has been vested by the Constitution
with original jurisdiction. It rests with the legislative department of the »
government to say to what extent such grants shall be made, and it may
safely be ^sumed that nothing will ever be done to encroach upon the high
privileges of those for whose protection the constitutional provision was
intended. At any rate, we are unwilling to say that the power to Inake
the grant does not exist." Ill U. S. 469, 28 L. Ed. 490, 4 Sup. Ct. 447. ^
Neither does the grant to the Supreme Court of original jurisdiction in
eases in which a State is a party preclude the Supreme Court of a State
from taking jurisdiction of a case between a state and a citizen of another
State. Delafield v. State of Illinois, 26 Wend. 215 ; affirmed in 2 Hill, 168.
Nor does the fact that the Supreme Court is given appellate jurisdiction
in eases in which the United States is a party preclude the United States
from coming in as a party in an original controversy between two States
before the Federal Supreme Court. Florida v. Georgia, 17 How. 505, 509,
15 L. Ed. 199, 201.
1—8
I
L Cr. 137-180 NOTES ON U. S. REPORTS. 114
It thus appears, that the proposition that the original jurisdiction of the
Supreme Court is exclusive practically fails. This conclusion, however, in
no wise affects the decision in Marbury v. Madison, though it fixes impor-
tant limitations upon the language used — limitations which Chief Justice
/ Marshall was himself the first to point out.
Not unnaturally the State courts have upon occasion found a helpful
analogy in Marbury v. Madison when confronted with similar jurisdic-
tional questions in the interpretation of their own Constitutions and laws.
Thus, in deciding as to the right to issue mandamus and habeas corpus in
the exercise of their original jurisdiction, the highest courts of the States
have in several instances resorted to the reasoning and followed the conclu-
sions set forth in the leading case. The provision* of the first Constitu-
tion and statute of California upon the subject of the State writs, was
identical with that of the national Constitution and laws, and the State
court accordingly followed Marbury v. Madison in holding that mandamus
to an officer of another department of the government was an exercise of
original jurisdiction and inadmissible, but that it might properly be di-
rected to a judge of a subordinate court. People v. Turner, 1 Cal. 146, 52
Am. Dec. 298. Subsequently, this law was changed, and under the second
and third Constitutions the court had power to issue the prerogative or
State writs in original causes. In thus deciding the construction of the
third Constitution the court was divided, one of the judges holding that
it was intended to aitthorize the issuance of these writs only in aid of the
court's appellate jurisdiction, and citing the leading case to the point that
mandamus is often used as an incident of appellate jurisdiction. Hyatt
V. Allen, 54 Cal. 353, 364. Again it is cited in several cases to the point
that the right to issue the common-law writs is one of the inherent powers
of an appellate court, and, therefore, that the constitutional grant of power
to issue them must mean a grant of such power in the exercise of original
jurisdiction. Wheeler v. N. C. Irrigation Co., 9 Colo. 251, 11^ Pac. 104 ;
State V. Archibald, 5 N. D. 362, 66 N. W. 236; and see Attorney General
V. Railroad Co., 35 Wis. 515.
Elsewhere it has been held that the mere grant of appellate jurisdiction
to a court would "give it a right to issue the common-law writs," and that
as appellate jurisdiction "revises and corrects" a cause in a lower court,
mandamus could issue in that limited class of cases only. Ex parte White,
4 Fla. 171; Jared v. Hill, 1 Blackf. 155, 156; see, also, Fannin v. High-
tower, 9 Tex. Civ. App. 298, 29 S. W. 190 ; Dobson v. Westheimer, 5 Wyo.
36, 36 Pac. 626. By a later Constitution the Supreme Court of Florida
was given this right. State v. Gleason, 12 Fla. 190, 206. That courts of
appellate jurisdiction have no power to issue mandamus in original causes
was deemed by the Supreme Court of Iowa to have been settled by Mar-
bury V. Madison, and accordingly it was held that the court had not the
power to mandamus the board of election commissioners. United States
ex rel. V. Commissioners of Dubuque Co., Morr. (Iowa) 36. To the same
effect is a Virginia ease. Sharpe v. Robertson, 5 Gratt. 636. Somewhat
similarly the Texas Court of Civil Appeals, having appellate jurisdiction
only, refused to mandamus a lower court to proceed with the trial of a
115 MARBURY v. MADISON. 1 Cr. 137-180
eaQse, holding that as the refusal was interlocutory and not appealable,
mandamus in such a case would be an exercise of original jurisdiction.
Fannin v. Hightower, 9 Tex. Civ. App. 298, 29 S. W. 190. But the Su-
preme Court of Texas has affirmed the validity of a statute providing that
the Court of Civil Appeals might certify to it certain questions for adjudi-
cation without first deciding upon them; although Stayton, C. J., dissent-
ing, relied upon the leading case to the contrary. Darnell v. Lyon, 85 Tex.
470, 22 S, W. 311. And the Supreme Court of Wisconsin, in an early case,
held that it had no original jurisdiction to issue a mandamus under a Con-
stitution conferring upon it appellate jurisdiction only, even though an-
other section gave it power to issue the common-law writs. State ex rel.
V. Farwell, 3 Pinn. 393, 416. Later, however, the court was given express
power to issue the common-law writs in all cases appellate and original.
Attorney Qeneral v. Blossom, 1 Wis. 317, 331; see, generally Taylor v.
Governor, 1 Ark. 23.
The proposition that courts of appellate jurisdiction have no power to
issne writs in original causes merges itself in the broader proposition that
a court of purely appellate jurisdiction may not exercise original jurisdic-
tion at all. To this point Marbury v. Madison is cited in several cases.
Ex parte Floyd, 40 Ala. 120; Chumasero v. Potts, 2 Mont. 242, 292; Daniel
V. Ct. of Warren, 1 Bibb (Ky.), 496, 5,00.
When State may invoke original jurisdiction of United States Supreme
Court. Kote, Ann. Gas. 1912G, 529.
It is the essential ciiterlon of appellate Jurisdiction that it rerviaea and
corrects the proceedings in a cause already instituted, and does not create that
cause. The issuance of mandamus by the Supreme Court against the Secretary-
of State would be the exercise of original not appellate Jurisdiction^
Approved in Ex parte Moran, 144 Fed.\696, determining power of Circuit
Court of Appeals to issue habeas corpus to inquire into power of Oklahoina
court in capital cases; State v. Nixon, 232 Mo. 510, 134 S. W. 542; court
having jurisdiction on appeal of cases arising within territorial limits can-
not hear cases arising beyond these limits; In re Peterson's Estate, 22
N- D. 506, 134 N. W. 763, statutes vesting in District Court jurisdiction to
try probate cases de novo, not violation of constitutional grant to County
Courts of exclusive original jurisdiction of probate matters; State v.
Ausherman, 11 WJyo. 425, 72 Pac. 202, upholding jurisdiction of Supreme
Court to issue prohibition to restrain action of inferior court in excess of
its jurisdiction.
The influence of the principle laid down in the jxrincipal case to the effect
that afitenative words must often be understood in a negative or exclusive
sense in order to carry out the intended meaning is apparent in other con-
nections than in questions arising out of the construction of the national
Constitution by the Federal courts. It has been applied in the construc-
tion of provisions of the State Constitutions. Thus the Constitution of
Florida conferred upon the Supreme Court power to issue writs of prohi-
bition, and the same power upon the County Court when necessary to the
complete exercise of its jurisdiction. Under the foregoing rule this was
1 Cr. 137-180 NOTES ON U. S. REPORTS. 116
held to exclude the right of the County Court to issue the writ as part of
its original jurisdiction. Singer Mfg. Co. v. Spratt, 20 Fla. 125. The
organic law of Nebraska extends the original jurisdiction of the Supreme
Court to mandamus, quo warranto and habeas corpus, and this was held
to negative original jurisdiction to issue prohibition. State v. Hall, 47
Neb. 583, 66 N. W. 643. The Constitution of Nevada conferred upon the
Supreme Court appellate jurisdiction in a number of cases, and the court
followed Marbury v. Madison in holding this an exclusion of original juris-
diction. Lake v. Lake, 17 Nev. 238, 239, 30 Pac. 880. To the same effect
was a decision of the Supreme Court of New Mexico in a case involving
the construction of the organic law of that territory, and the court held
that it had not power to issue mandamus in original causes. Territory v.
Ortiz, 1 N. M. 13. The Constitution of Rhode Island vested the judicial
power in the courfs of the State, and this was held under the above rule
to imply a prohibition against the exercise of such power by the legisla-
ture. A law setting aside certain judgments was, therefore, declared in-
valid. Taylor v. Place, 4 R. I. 367, 358. The Supreme Court of Utah has
also invoked this rule in holding that thexrganic law by implication pro-
hibited to it the issuance of injunction in original proceedings. Godbe v.
Salt Lake City, 1 Utah, 78. And the Supreme Court of Colorado Territory
recognized and followed this principle in holding that the organic law did
not authorize a legislative provision for appeals from Probate to District
Courts. Cass v. Davis, 1 Colo. 48.
This rule of construction has also been applied in other connections. It
has been held that a statute providing for the review of a case by app>eal
impliedly excluded all other means of bringing it before an appellate tri-
bunal. Thompson v. Lea, 28 Ala. 469, 463. A court rule permitting a
rehearing after decree entered, within ten days after such entry, prohibits
such action at any later time. The Illinois, 1 Brown Adm. 13, 30, Fed.
Cas. 13,602. The exemption of certain things from the operation of a stat-
ute of limitation during a certain period also carries the implication that
the statute is to operate fully as to all matters not excluded. Coleman v.
Holmes, 44 Ala. 124, 129, 4 Am. Rep. 121. When a statute requires a
judge to mark all requests for charge to a jury "given" or "refused," it is
inadmissible for the judge to insert qualifying words. Lyon v. Kent, 45
Ala. 656, 665. Finally, the rule has been invoked in holding that a stat-
ute granting a certain remedy against the official bond of a sheriff pro-
hibits and repeals a certain other remedy granted by an earlier law.
Shaeffer v. Jack, 14 Serg. & R. 429.
The cases discussed above, in which mandamus and habeas corpus have
issued from the Supreme Court, serve in part to illustrate this definition
of appellate jurisdiction, and it seems well settled on the authority of
Marbury v. Madison that mandamus or habeas corpus to lower courts
awarded according to the usages and practices of law, is generally an
exercise of appellate jurisdiction. See, in addition to the cases discussed
above, Ex parte White, 4 Fla. 166, 171; People ex rel. v. Bacon, 18 Mich.
247, 263 ; People ex rel. v. Spiers, 4 Utah, 387, 10 Pac. 610 ; State v. Ber-
mudez, 14 La. 478, 482. Though an early case falls into the error of hold-
117 MABBURY v. MADISON. 1 Cr. 137-180
ing that mandamns can never be issued by a court of appellate jurisdiction
at all. Howell v. Crutchfield, Hempst. 100, Fed. Cas. 6778a.
In addition there are other cases among the reports in which this defi-
nition has been applied. Thus it has been held by a divided court that the
issuance of an injunction by the Supreme Court in a case where the Cir-
cuit Court was divided in opinion as to its propriety is an exercise of
appellate jurisdiction. Mr. Justice Catron dissenting, defined appellate
jurisdiction as meaning. "to re-examine and to reverse or aflSrm the judg-
ment, sentence, order or decree of an inferior court — ^to pass on that which
has been adjudged." United States v. Chicago, 7 How. 197, 12 L. Ed. 666.
A revision of the acts of an officer not exercising a part of the judicial
power of the United States is not an exercise of the appellate jurisdiction
of the national Supreme Court. In re Kaine, 14 How. 119, 128, 14 L. Ed.
351, 355. It is not sufficient that there has been a decision by some offi-
cer, but it must be one with judicial authority and acting in a judicial
capacity. Dunn v. State, 2 Ark. 229, 257, 35 Am. Dec. 70. An act pro-
viding for an appeal from the decision of a county board of clerks author-
ized to appraise taxes, to a Supreme Court having only appellate jurisdic-
tion, is, therefore, unconstitutional, since such a board exercises no part
of the judicial power. Auditor v. Atchison etc. R. R., 6 Kan. 500, 506,
7 Am. Bep. 578. And to mandamus a bqard of penitentiary inspectors
would be to exercise an original jurisdiction. Ex parte Allis, 12 Ark. 105.
Courts of law do iu>t themselves always and in all jurisdictions act in a
judicial capacity; but it is only when they are so acting that mandamus
to control those acts is an exercise of appellate jurisdiction. Lavergne's
Heirs v. Elkins' Heirs, 17 La. 227. Again, where the tribunal to be man-
damused is not properly a subordinate court, but a distinct tribunal, such
as a court of chancery, mandamus from the highest law court has been
held original aa^pot appellate jurisdiction. Sharpe v. Robertson, 5 Gratt.
636. And it haftjibeen held in reliance upon this principle that it would
not be an exercia#. of appellate jurisdiction to consider a cause brought up
by appeal from a pro forma decree entered below by consent. Darden v.
Lines, 2 Fla. 572.
It would be error for a court having only appellate jurisdiction to allow
someone not a party below to prosecute a writ of error (Arnett v. McCain,
47 Ark. 412, 1 S. W. 873) ; or to substitute upon a mandamus the successor
in office of the original defendant. United States v. Boutwell, 17 Wall.
609, 21 L. Ed. 722, 3 MacAr. 177, 178. But it is not an exercise of origi-
nal jurisdiction to mandamus a subordinate judge to restore certain attor-
neys to the right to practice, of which they had been deprived. People
V. Turner, 1 Cal. 143, 146, 147, 52 Am. Dec. 298. Or to compel a lower
court to take jurisdiction and proceed in a proper case. State v. Ber-
mudez, 14 La. 478, 482. A court which passes upon the propriety of the
action of an inferior tribunal which dismissed a suit on the ground that
it had no jurisdiction is exercising an appellate and not an original juris-
diction. Nichol V. Patterson, 4 Ohio, 200, 203.
The leading case has also had 8on\.e further influence as authority for
general points in the matter of the jurisdiction of Federal courts. Thus
1 Cr. 137-180 iSrOTES ON U. S. REPORTS. 118
it is cited to the point that for the appellate jurisdiction of the Supreme
Court to attach the Constitution must give a capacity to take and an act of
Congress supply the requisite authority. Daniels v. Railroad Co., 3 Wall.
254, 18 L. Ed. 226. And again, to the point that the judicial power of the
United States cannot be enlarged by Congress. Ex parte Clarke, 100 U. S.
408, 25 L. Ed. 728. It is cited in the Circuit Court to the point that Fed-
eral courts are courts of limited jurisdiction, which must be exercised in
the mode pointed out by the Constitution; that acts of Congress directing
differently are void; and that the enumeration of cases in which the Fed-
eral courts may act is exclusive of all others. Baker v. Biddle, Baldw.
394, 406, Fed. Cas. 764. And in holding a case arising under the national
bankruptcy laws, removable to the Federal court, it is cited as authority
for the proposition that a case or suit involving a question under the
Constitution, treaties or laws of the United States, 'is cognizable in the
courts of the nation. Connor v. Scott, 4 Dill. 242, 246, Fed. Cas. 3119.
The Supreme Court of New Hampshire also cites Marbury v. Madison to
the point that cases arising under the laws of the United States are ''such
as grow out of the legislation of Congress within the scope of its consti-
tutional authority, whether they constitute the right, privilege or claim,
or protection or defense of a party in whole or in part by whom they are
asserted.'' Beavins' Petition^ 33 N. H. 89, 91. In this case the court up-
held a law providing that naturalization proceedings should be cognizable
only in the Court of Common Pleas.
There remi^n under this topic a few citations which are of a general
or miscellaneous nature and illustrate no one of the points upon which the
leading, case lays especial emphasis. In holding that an action appealed
to an appellate court might not be remanded to chancery again, the
Supreme Court of Alabama cites Marbury v. Madison to the point that it
had no inherent power to grant such a motion. Sanders ▼. Cabaniss, 43
Ala. 190. Marbury v. Madison is 'cited to the point that appellate jurisdic-
tion revises and corrects proceedings in a cause already instituted, in a
case holding that a law prohibiting appeals in certain actions under
twenty-five dollars did not conflict with the constitutional provision that
the Supreme Court was to have appellate jurisdiction of all cases — ^it was
pointed out that there was still a method of review by certiorari. Tiemey
V. Dodge, 9 Minn. 170. Another case cites it as a general authority on
questions of jurisdiction, and yet another as defining the jurisdiction of
the Federal courts. Connor v. Scott, 4 Dill. 246, Fed. Cas. 3119; White
V. Kendrick, 1 Brev. (S. C.) 473. In holding a provision of the judiciary
act of 1789 void, the Supreme Court of Virginia remarked that the
national Supreme Court had itself found the act invalid in another par-
ticular. Hunter v. Martin, 4 Munf. 28. Again, the leading case is cited
as illustrating the point that there is no general principle forbidding the
grant of additional jurisdiction to a court created by a fundamental law,
and that such a principle must be inferred from something else in the
Constitution indicating an intention not to allow the increased jurisdiction.
Ex parte Towles, 48 Tex. 452. In holding that an act of the legislature,
authorizing the Court of Civil Appeals to certify questions to the Supreme
119 MARBURY v. MADISON. 1 Cr. 137-180
Court for decision was invalid, becanse the Constitution gave to the
Supreme Court only appellate jurisdiction, and this was not an exercise of
appellate jurisdiction, Stayton, C. J., in his opinion in the foregoing case,
quotes at length, from Marbury v. Madison in defining apx)ellate jurisdic-
. tion. And again, the Mississippi Supreme Court remarked the limitations
upon the original jurisdiction of the Federal Supreme Court as decided in
Marbury v. Madison in holding a grant ' of original jurisdiction by the
legislature of that State, not invalid. Blanchard v. Buckholt, Walk.
(Miss.) 64.
Original jurisdiction of court of last resort in mandamus. Note, 58
L. R. A. 8S3, 836, 847, 867.
'Right to certiorari where there is an appeal. Note, 50 L. R. A. 789.
To entitle an applicant to the writ of mandamus, he must have (1) a dear
legal xi^t to liave the thing done which he thus seeks to compel, and (2) no
other adequate legal remedy. Mandamus may issue even against high ezecn-
tivo officers to compel the performance of ministerial duties, imposed by law,
and Involving the sKerdse of no discretion; for it is not by the office of the
person to whom the writ is directed, but the natdre of the thing to be done, that
the pgopriety or impropriety of landng a mandamus is to be determined. And
upon the same princij^ it may issne against an inferior court in ministerial
Before proceeding to a discussion of the point more particularly in-
volved, viz., the right to mandamus an executive office, it is in order to
note briefly some of the citations which serve to outline the general nature
of the writ of mandamus. It has been defined as "a command issuing
from a common-law court of competent jurisdiction, in the name of the
State or sovereign, directed to some corporation officer or inferior court,
requiring the performance of a particular duty therein specified, which
duty results from the official station of the party to whom the writ is
directed, or from operation of law." High on Extraordinary Legal Reme-
dies, § 1. The definitions of Lord Mansfield and of Blackstone, quoted in
the principal case, are also to be found in the citations, the former credited
by one court to Marbury v. Madison. Harris v. State, 2 Ga. 292.
The late citations have applied the syllabus proposition in a variety of
ways, as may be seen from the citations: Louisiana v. McAdoo, 234 U. S.
834, 58 L. Ed. 1509, 34 Sup. Ct. 938, suit by State of Louisiana against Sec-
retary of Treasury to compel revision of sugar tariff rates not allowed,
since this act involved discretion; Garfield v. United States, 211 U. S.
261, 63 L. Ed. 174, 29 Sup. Ct. 62, mandamus will lie against Secretary of
Interior, ^oing beyond authority in erasing name of Indian from citizen-
ship-rolls; In re Garrosi, 229 Fed. 365, mandamus will not lie to compel
District Court of Porto Rica to send suit to appellate court before judg-
ment to save cost and delay ; Branaman v. Harris, 189 Fed. 463, injunction,
restraining postmaster from executing "fraud order," refused, as court is
unwilling to interfere with executive officer in exercise of discretion;
Wadsworth v. Boysen, 148 Fed. 780, denying jurisdiction of suit to enjoin
Indian agent from obstructing complainant firom prospecting on rcsrrva-
1 Cr. 137-180 NOTES ON U. S. REPORTS. 120
tion lands; Barber Asphalt Pay. Co. v. Morris, 132 Fed. 955, 67 L. B. A.
761, 66 C. C. A. 55, upholding power of Circuit Court of Appeals to issue
mandamus where lower Federal court stayed all proceedings until deter-
mination of- matter by State court; Kimberlin v. Comm. to Five Civilized
Tribes, 104 Fed. 655, 656, 658, denying mandamus to commission of five
civilized tribes; State ex rel. Higdon v. Jelks, 138 Ala. 121, 35 South. 61,
denying mandamus to compel Governor to reinstate national guard officer;
Insane Asylum v. Wolfly, 3 Ariz. 133, 22 Pac. 383, holding mandamus does
not lie to territorial Governor to compel him to sign warrant on treasurer
for funds for territorial asylum, at instance of directors of asylum ; People
V. Ward, 10 Cal. App. 537, 102 Pac. 678, mandamus lies to compel secretary
of foreign corporation resident of State to deliver books of cqrporation,
where there is no other adequate remedy; Stewart v. Torrance, 9 Cal. App.
211, 98 Pac. 397, mandamus to compel settlement of bill of exceptions in
divorce case refused by Court of Appeal, as it would be invasion of juris-
diction of Supreme Court; People v. District Court, 29 Colo. 236, 68 Pac.
254, holding that in suit to enjoin assesso]>it is immaterial whether com-
plainants will be compelled to institute multiplicity of suits; State Board
L. Commrs. v. Carpenter, 16 Colo. App. 438, 66 Pac. 166, holding action
lies against board of land commissioners to reinstate lease wrongfully can-
celed; Ray V. Garrison, 42 App. D. C. 38, under statute imposing no duty
to certify name of army officer entitled to promotion. Secretary of State
cannot be enjoined from nominating other army officer; Holzendorf v. Hay,
20 App. D. C. 581, judiciary cannot by mandamus compel Secretary of
State to ui]ge claims of citizen of this country against foreign country;
West V. Hitchcock, 19 App. D. C. 342, mandamus lies to compel Secretary
of Interior to make allotment of land to adopted members of Indian tribe,
where all requirements of law complied with and allotment is mere min-
isterial act; Brown v. Root, 18 App. D. C. 242, mandamus will not lie to
compel Secretary of War to muster out and discharge army officer claim-
ing dismissal by court-martial was 'unlawful ; United States v. Windom,
8 Mack. (D. C.) 60, mandamus lies to compel Secretary of Treasury to
perform ministerial act of delivering draft to which creditor has legal
right ; Donaldson v. Wright, 7 App. D. C. 59, refusing injunction to restrain
superintendent of census from publishing altered bulletins on condition of
Indians; United States v. Bayard, 5 Mack. (D. C.) 429, 434, payment of
money by Secretary of State is ministerial duty, where claimant has clear
legal right, and mandamus will lie; United States v. Boutwell, 3 McAr.
(D. C.) 177, mandamus will not lie to compel payment of money by Secre-
tary of Treasury when act involves discretion ; Seymour v. South Carolina,
2 App. D. C. 256, mandamus will not lie to compel commissioner of patents
to issue trademark, his duties in such case involving judgment and discre-
tion; Ingard v. Barker, 27 Idaho, 137, 147 Pac. 297, mandamus to compel
delivery of commission by Secretary of State refused until reasonable time
given for horticultural association to make recommendation, as provided
by law, though Governor not compelled to appoint from those recom-
mended; Farrelly v. Cole, 60 Kan. 378, 56 Pac. 499, holding Governor's
action in calling extra session of legislature is not reviewable; Board of
121 liARBUBY V. MADISON. 1 Cr. 137-180
Trustees ▼. McCroiy, 132 Ky. 92, 21 L. R. A. (N. S.) 583, 116 S. W. 327,
eonrt, having no appellate power over trustees of firemen's pension fund,
cannot on mandamus review act involving discretion; Traynor v. Beckham,
116 Ky. 24, 74 S. W. 1107, mandamus lies to Grovemor to •ompel issuance
of commission to police judge legally appointed hy city council; In re
Lanritsen, 99 Minn. 325, 109 N. W. 409, mandamus will not lie to determine
charges of fraud and illegality in voting in election contests; State v.
Smith, 23 Mont. 48, 57 Pac. 450, refusing mandamus to compel board of
examiners to approve contracts; State v. Savage, 64 Neb. 696, 90 N. W.
899, holding mandamus may lie to compel Governor to appoint Rre and
police commissioners for city of Omaha; State v. Dickerson, 33 Nev. 566,
113 Pac. 113, granting mandamus directing Governor to perform minis-
terial act of accepting bonds as required by statute; State R. M. F. Co.
V. Toole, 26 N. H. 28, 91 Am. St. Rep. 888, 66 Pac. 498, mandamus lies to
compel State board to sign contract after formally accepting bid for sup-
plies ; Durker v. Venable, 126 N. C. 449, 35 S. E. 819, holding mandamus
to compel superintendent to sign teacher's demand may be returnable at
chambers ; White v. Auditor, 126 N. C. 680, 581, 596, 36 S. E. 134, 135, 140,
holding mandamus lies to compel auditor to issue warrant for oyster in-
spector's salary ; State v. Huston, 27 Okl. 626, 629, 84 L. R. A. (N. &) 380,
113 Pac. 198, 199, executive officers of State, other than Governor, enjoined
from removing offices, public records, books and papers from seat of
government; Norris v. Cross, 25 Okl. 310, 311, 105 Pac. 1009, Secretary of
State may be compelled by mandamus to grant hearing as to sufficiency of
referendum petitions filed, but cannot be compelled to decide in any par-
ticular way; City of El Reno y. Cleveland-Trinidad Paving Co., 25 Okl. 661,
27 L. R. A. (N. S.) 650, 107 Pac. 167, executive officers of city enjoined
from repealing assessing ordinance, such repeal not within exercise of legis-
lative discretion, but beyond its powers as invading property rights of
contractor; State v. Huston, 21 Okl. 802, 97 Pac. 990, prohibition lies where
court assumes jurisdiction over suit prosecuted by attorney general with-
out executive request; McDaid v. Territory, 1 Okl. 98, 30 Pac. 440, grant-
ing 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; Hatfield v. Graham,
73 W. Va, 769, L. R. A. 1915A, 175, 81 S. E. 537, executive not amenable
to judiciary for exercise of power within his discretion to suppress news-
paper aiding rioters in district under martial law ; Ekern v. McGovern, 154
Wis. 220, 46 L. R. A. (N. S.) 796, 142 N. W. 612, Governor may remove
commissioner of insurance, but not within his discretion to forcibly install
successor in office; State v. Brooks, 14 Wyo. 412, 84 Pac. 490, upholding
jurisdiction to issue mandamus to compel Governor to issue certificate of
election as State treasurer; dissenting opinion in People v. Rose, 207 111.
375, 69 N. E. 770, majority denying mandamus to compel Secretary of
State to cancel forfeiture of corporate charter for failure to comply with
Laws 1901 ; dissenting opinion in Ellingham v. Dye, 178 Ind. 420, Ann. Cas.
19150, 200, 99 N. E. 31, majority holding that duties imposed on Governor
1 Cr. 137-180 NOTES ON U. S. REPORTS. 122
to submit Constitation to electors were ministerial, and performance conld
be restrained by injunction; dissenting opinion in People v. Dunne, 258
111. 461, 45 L. R. A. (N. S.) 500, 101 N. E. 567, majority holding that man-
damus will not lie to compel Governor of State to canvass abstract of
votes and issue certificate of election to petitioner; dissenting opinion in
Henry v. State, 88 Miss. 844, 39 South. 890, majority holding that Governor
cannot sue to have contract for convict labor canceled; dissenting opinion
in H. P. Cornell Co. v. Barber, 31 R. I. 393, 76 Atl. 814, majority holding
that mandamus will lie to compel town treasurer to pay claims properly
audited.
The principal case lays down the principle, that in order to entitle an
applicant to the writ two things must concur: First, a clear legal right
to have the thing done, to cbmpel the doing of which the writ is sought;
and second, that there is no other adequate legal remedy by which the
specific performance of the duty can be enforced. Ex parte Mackey, 15
S. C. 336; see, also. Wood on Mandamus, §§68, 84, 89, 110; Brown v.
Bragunier, 79 Md. 236, 29 Atl. 8; State v. Larrabee, 3 Pinn. 168; Baker
v. Johnson, 41 Me. 20 ; State v. Holliday, 8 N. J. L. 206, 208. If, there-
fore, the statute conferring the right be unconstitutional, this may be
argued in defense and will defeat the application. Hoover v. McChesney,
81 Fed. 483 ; Van Horn v. State, 46 Neb. 82, 64 N. W. 372 ; State v. Auditor,
47 La. Ann. 1694, 18 South. 751. In accordance with this rule, also, an
appellate court has declined to command a subordinate tribunal to strike
out a certain portion of a decree which did not alter its l^al effect and so
interfered with no specific right of the applicant (State ex rel. v. Larrabee,
3 Pinn. 166, 168) ; or to mandamus a road commission to grant petitioner
a ferry license; since it did not appear that he owned the land on both
sides of the stream as required by statute. State v. Com. of Roads, 3
Port. 416. And this doctrine means not only that he must show a clear
duty on the part of the defendant to perform the act sought to be com-
pelled, but also, in general, some personal or special interest of his own
in the subject matter, -as a foundation of his right to the relief. High on
Extraordinary Legal Remedies, § 431. To this rule, however, there is an
exception where the duty sought to be enforced is a public one, and the
petitioner need not show the same degree of interest in the performance
of this duty as is required where the relief is sought merely for the pro-
tection of private rights. In general it is sufficient in such a case for the
petitioner to show that he is a citizen and as such interested in the execu-
tion of the laws. Wise v. Bigger, 79 Va. 273; State Vv Ware, 13 Or. 384,
10 Pac. 887. A fortiori it is competent for anyone specially interested in
the performance of a public duty to apply for mandate to compel its ob-
servance— as, for instance, for a telephone company to mandamus an elec-
tric railway to maintain guard wires above its trolleys as required by city
ordinance. State ex rel. v. Janesville Str. R. R., 87 Wis. 79, 41 Am. St.
Rep. 28, 57 N. W. 972.
The second half of the proposition, viz., that there must be no other
adequate remedy existent, is also illustrated by the citations, and is un-
questioned law. Upon this and other grounds mandamus to a State auditor
123 I MARBURY v. MADISON. 1 Cr. 137-180
to compel pajonent of a claim was refused, there being a plain, speedy and
adequate remedy, so the court declared, in an application to the. legislative
assembly. State ex rel. v. Kenney, 9 Mont. 380, 24 Pac. 97. To the same
effect is Reeside v. Walker, 11 How. 292, IS L. Ed. 701. So,, also, man-
damus to a State (Governor to issue a commission to office has been re-
fused upon the ground, among others, that the claimant has a remedy
by legal contest under a State statute. Brown v. Bragunier, 79 Md. 236,
29 Atl. 8. If it appears that resort to the ordinary form of relief would
cause delay, and consequent injury to the complainants' rights, this will
sometimes justify the exercise of this form of extraordinary relief. Hatch
y. City Bank, 1 Rob. (La.) 495. In general, mandamus is not the proper
method of trying title to an office against one actually in possession under
color of law, but rather quo warranto proceedings which serve at once
to remove the incumbent in a proper case, and install the proper officer.
French v. Cowan, 79 Me. 426, 10 Atl. 340 ; Brown v. Turner, 70 N. C. 93,
106 ; Supervisors v. O'Malley, 46 Wis. 69, 50 N. W. 525. But one legally
elected to an office may mandamus the incumbent, so it has been held,
to deliver over the office and books to him, on the ground that quo warranto
would merely procure defendant's removal and would not be adequate.
Harwood v. Marshall, 9 Md. 83, 98; and see Conklin v. Cunningham, 7
N. M. 466. And elsewhere it has been allowed against one who had no
color o{ title to the office in favor of one with prima fsifiie title. State v.
Archibald, 5 N. D. 362; and see Manor v. State ex rel., 149 Ind. 318, 49
N. E. 163. So, also, injunction may be a proper remedy to prevent one
holdiiig an office from being forcibly removed. Butler v. White, 83 Fed.
582, 588.
Moreover, courts will not grant the writ unless it appears that it would
aeeomplish the desired purpose. Accordingly an application for mandamus
to a board of election canvassers to compel them to count certain ballots
was refused by the Supreme Court of South Carolina, as it appeared that
the board would go out of existence before the mandate could be granted.
Ex parte Mackey, 15 S. C. 336; and see Brown v. Bragunier, 79 Md. 236,
29 Atl. 8. ,
In the code States the cases in which mandamus is admissible are gen-
erally provided by statute, the scope of the enactments being sometimes
more sometimes less extensive than at common law. Thus mandamus is
admissible in Louisiana, not only where there is no adequate remedy, but
also where the legal remedy is likely to produce great delay or defeat the
ends of justice. Hatch v. City Bank, 1 Rob. (La.) 497.
The first case calling definitely for a decision upon this question of the
right to mandamus an executive officer arose in 1837. As has been se^n
above, the courts early decided that the Circuit Court for the District of
Columbia was empowered to issue the writ in original causes. And this
case came before the Supreme Court upon appeal from a judgment of that
tribunal awarding mandamus against the postmaster-general. One Stokes
and others, having certain contract claims against the postoffice depart-
ment, payment of which was refused, applied to Congress for relief, and
succeeded in procuring the passage of an act of Congress, providing, among
1 Cr. 137-180 NOTES ON U. S. REPORTS. 124
other things, "that the solicitor of the treasury do examine into and adjust
the said claims therein specified, and that the postmaster-general credit
said contractors with whatever sum or sums of money;, if any, the said
solicitor shall so decide to be due to them on account of such service or
contract." In accordance with this act the solicitor of the treasury did
make an award which, however, the postmaster-general refused to credit
in full to the relators, as directed by the act, and as recommended by a
subsequent senate resolution. In an elaborate opinion the decision below
was affirmed and the mandamus allowed. "There are certain political
duties imposed upon many officers in the executive department," observed
the. court, per Thompson, J., "the discharge of which is under the direc-
tion of the President. But it would be an alarming doctrine that Congress
cannot impose upon any executive officer any duty they may think proper,
which is not repugnant to any rights secured and protected by the Con-
stitution; and in such cases the duty and responsibility grow out of and
are subject to the control of the law, and not to the direction of the Presi-
dent, and this is emphatically the case where the duty enjoined is of a
mere Vinisterial character." Kendall v. United States, 12 Pet. 610, 9
L. Ed. 1215. And again, "the act required by the law to be \done by the
postmaster-general is simply to credit the relators with the full amount
of the award of the solicitor. This is a precise definite act, purely minis-
terial, and about which the postmaster-general had no discretion \f hatever.
. . . There is no room for the exercise of any discretion, official or other-
wise; all that is shut out by the direct and positive command of the law,
and the act required to be done is in every just sense a mere ministerial
act." This reasoning was affirmed in Decatur v. Paulding, 14 Pet. 497, 10
L. Ed. 559, which was an application for mandamus against the Secre-
tary of the Navy to compel him to pay certain pension claims. The man-
damus, was there refused, however, as the act sought to be compelled was
held to involve the exercise of discretion, and the judiciary had no power
to control an executive officer in an executive duty.
Since the decision of these cases there have been a variety of causes
before the national courts involving the question of the power of the court
to control and direct certain acts of the executive department; and all
recognize and emphasize the doctrine announced by the foregoing cases.
"It is elementary law," observed the Supreme Court, per Mr. Justice White,
"that mandamus will only lie to enforce a ministerial duty, as contradis-
tinguished from a duty that is merely discretionary. This doctrine was
clearly and fully set forth by Chief Justice Marshall in Marbury v. Madi-
son, 1 Cr. 137, and has since been many times reasserted by this court."
United States ex rel. v. Lamont, 155 U. S. 308, 89 L. Ed. 168, 15 Sup. Ct.
98. The general principle is more fully stated by Mr. Justice Bradley in
another case: "The court will not interfere by mandamus with the exec-
utive officers of the government in the exercise of their ordinary official
duties, even where those duties require an interpretation of the law, the
court having no appellate power for that purpose; but where they refuse
to act in a case at all, or where by special statute, or otherwise, a mere
ministerial duty is imposed upon them, that is, a service which they are
125 MARBURY v. MADISON. 1 Cr. 137-180
bound to perform without farther question, then, if they refuse, a man-
damus may be issued to compel them." United States ex rel. v. Black, 128
U. S. 48, 82 L. Ed. 857, 9 Sup. Ct. 14. And the statement of the prin-
ciple in other cases differs in the wording only, and its authority is well
established. See, in particular, Noble v. Union etc. R. R., 147 U. S. 171,
37 L. Ed. 125, 13 Sup. Ct. 272; Mississippi v. Johnso|i, 4 Wall. 498, 18
L. Ed. 441 ; Gaines v. Thompson, 7 Wall. 349, 19 L. Ed. 64 ; United States
V. Schurz, 102 U. S. 395, 26 L. Ed. 171; Redfield v. Windom, 137 U. S. 643,
84 L. Ed. 814, 11 Sup. Ct. 199 ; N. 0. Nat. Bank v. Merchant, 18 Fed. 850 ;
Taylor v. Kercheval, 82 Fed. 499; Hoover v. McChesney, 81 Fed. 482;
Cunningham v. Macon etc. R. R., 109 U. S. 453, 27 L. Ed. 994, 3 Sup. Ct.
297 ; Houston etc. R. R. v. Comr., 36 Tex. 411 ; Brown v. Turner, 70 N. C.
105, 106; Treat v. ^iddletown, 8 Conn. 247; Ex parte Echols, 39 Ala. 700,
88 Am. Dec. 751; Ex parte Hill, 38 Ala. 485; Dudley v. James, 83 Fed.
345, 347; Ex parte Reeside, 20 Fed. Cas. 458; McElrath ▼. Mcintosh, 16
Fed. Cas. 79.
The verdict of the State courts. seems to be equally unanimous as to
executive officers, other than the State Governors themselves, McCauley
V. Brooks, 16 Cal. 41 ; Pacheco v. Beck, 52 Cal. 10 ; Bledsoe v. Int. R. R.,
40'Tex. 537, 556; Bonner v. State, 7 Ga. 482; Swann v. Buck, 40 Miss.
268, 290; Chumasero v. Potts, 2 Mont. 242, 256; State v. Lord, 28 Or. 525,
43 Pac. 478; Howell v. Cooper, 2 Colo. App. 531, 31 Pac. 523; State v.
Auditor, 47 Iia. Ann. 1686, 18 South. 748.
•The rule then is that mandamus will only lie when the act sought to be
compelled is a mere ministerial duty. The party must, of course, show
the lack of other adequate remedy and establish in himself a clear ri^ht to
the thing sought. So, also, the obligation to perform the duty sought to
"be enforced must be both peremptory and plainly defined. The law must
not only authorize but require the act to be done. United States v.
Lamont, 155 U. S. 308, 39 L. Ed. 163, 15 Sup. Ct. 98; Reeside v. Walker,
11 How. 292, 18 L. Ed. 701. And the duty must exist at the time the
application for the mandamus is made. United States v. Lamont, 155 U. S.
308, 39 L. Ed. 168, 15 Sup. Ct. 98.
It is not always easy to decide when an official duty is merely ministe-
rial, imposed by law, and involving the exercise of no discretion, and when
it is one which the courts have no right to enforce or control. As was
said by Mr. Justice Catron, dissenting in Decatur v. Paulding, 14 Pet. 518,
10 L. Ed. 669: "Any sensible distinction applicable to all cases it is im-
possible to law down; such are the refinements and mere verbal distinc-
tions as to leave an almost unlimited" discretion to the court." "A minis-
terial act," in the words of the Supreme Court of Kansas, "is one which a
public* officer or agent is reqilired to perform upon a given state of facts,
in a prescribed manner, in obedience to the mandate of legal authority, and
-without regard to his own opinion concerning the propriety or impro-
priety of the act to be performed." Martin v. Ingham, 38 Kan. 651, 17
Pac. 168. Most of the duties of an executive officer are not mere minis-
terial duties. **The head of an executive department of the government, in
the administration of the various and important concerns of his office^ ia
1 Cr. 137-180 NOTES ON U. S. REPORTS. 126
continually required to exercise judgment and discretion. He must exer-
cise his judgment in expounding the laws and resolutions of Congress,
under which he is from time to time required to act. If he doubts, he has
a right to call on the attorney general to assist him with his counsel."
Decatur v. Paulding, 14 Pet. 615, 10 L. Ed. 568.
It 'may safely be affirmed that the courts will control the acts of executive
officers only in a clear case; and that the deference due to a co-ordinate
department of the government will lead them to indulge every reasonable
doubt in favor of the freedom of executive action. One case ffoes to the
extent of asserting that not all ministerial acts may be controlled by man-
damus. R«dfield v. Windom, 137 U. S. 643, 84 L. Ed. 814, 11 Sup. Ct. 199.
And while the proposition seems scarcely tenable, it indicates the reluc-
tance often manifested by the courts in granting mandamus against an
executive officer.
There are among the citations numerous other attempts at a definition
of ministerial duties. The distinction between ministerial and other acts
has been pointed out as follows : "When the law prescribes and defines the
duty to be performed with such precision and certainty as to leave noth-
ing to the exercise of discretion or judgment, the act is ministerial; but
where the act to be done involves the exercise of discretion or judgment
in determining whether the duty exists, it is not to be deemed merely minis-
trial." Comr. V. Smith, 5 Tex. 47j9. It is but going over the same ground
to say of the duty for whose performance the mandamus is asked that it
must be "a simple definite duty arising under conditions admitted or
proved to exist and imposed by law" (Mississippi v. Johnson, 4 Wall. 498,
18 L. Ed. 441); or that it must be "clear and indisputable" (Knox Co.
Commrs. v. Aspinwall, 24 How. 376, 16 L. Ed. 735); or that it must be
"peremptory and plainly defined" (United States ex rel. v. Lamont, 165
U. S. 308, 39 is. Ed. 168, 16 Sup. Ct. 98) ; and see State v. Lord, 28 Or. 525,
43 Pac. 478; Enterprise etc. v. Zumstein, 67 Fed. 1007, 37 U. S. App. 71;
State ex rel. v. Meier, 143 Mo. 446, 43 S. W. 307.
Mandamus has been likened to injunction with respect to the propriety
of its issuance against an executive officer. "In the one case," said Mr.
Justice Miller, in Gaines v. Thompson, 7 Wall. 362, 353, 19 L. Ed. 65, "the
officer is required to abandon his right to exercise his personal judgment,
and to substitute that of the court, by performing the act as it commands.
In the other he is forbidden to do the act which his judgment and discre-
tion tell him should be done. There can be no difference in the principle
which forbids interference with the duties of these officers, whether it be
by writ of mandamus or injunction." See, also. Noble v. Union etc. Co.,
147 U. S. 171, 87 L. Ed. 125, 13 Slip. Ct. 272 ; Enterprise Savings Assn. v.
Zumstein, 67 Fed. 1007, 37 U. S. App. 71 ; Lane v. Anderson, 67 Fed. 565 ;
Dudley v. James, 83 Fed. 349.
The matter can be elucidated further only by illustrations taken from
the decided cases. Aside from Kendall v. United States, 12 Pet. 610,
9 L. Ed. 1215, and Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559, which
are often referred to as well illustrating the line of demarcation, there
are many cases among the citations in which the courts have been com-
127 . MARBURY v. MADISON. 1 Cr. 137-180
pelled to decide whether a given duty was or was not merely ministerial.
The ease of United States v. Black, 128 U. S. 40, 82 L. Ed. 854, 9 Sup.
Ct. 12, offers a further admirable illustration of the difference between
executive and ministerial duties. It was there held that the commissioner
of pensions, by receiving the application of a pensioner fo^ an increase
in his pension, as provided by act of June 16, 1880, by considering it
and the evidence in support of it, and by deciding adversely to the peti-
tioner, performed an executive act which the courts have no right to
control, either by mandamus or on appeal. If, however, this decision
of the commissioner of pensions had been afterward overruled by the
Secretary of the Interior, and the commissioner had then refused to carry
out the command of his superior, then the court declared that mandamus
might properly have issued to compel compliance with such command.
The principal case declares the delivery of a judicial commission, duly
signed and sealed, to be a mere ministerial duty imposed by law upon the
Secretary of State. Such also is the duty of the Secretary of the Interior
in delivering over the patent to lands, although he has first to determine
by scrutiny of the seal, signatures, etc., that the document is valid and
genuine. United States v. Schurz, 102 U. S. 396, 399, 402, 26 L. Ed. 171,
172, 174. The Supreme Court of California has decided that the Gov-
ernor might be mandamused to perform the ministerial duty of signing a
similar patent to certain lands. Middletown v. Low, 30 Cal. 601. And in
a Colorado case the writ issued against the same ofBcer for the delivery
of a patent for public lands.. Greenwood v. Routt, 17 Colo. 169, 81 Am.
St. Bep. 294, 28 Pac. 1129. If an executive officer issue an erroneous deed,
he may be compelled by mandamus to correct it. McCready v. Sexton, 29
Iowa, 381, 4 Ain. Bep. 222. The duty of a Secretary of State in placing
the great seal of the State upon a commission issued by the Governor is
also ministerial. State ex rel. v. Crawford, 28 Fla. 476, 508, 511, 10 South.
120y 128, 129. And it has been held that the duty of the same officer in
issuing notices for an election is merely ministerial, so that he may be en-
joined from issuing such notices under a void apportionment act. State
ex rel. v. Cunningham, 81 Wis. 503, 51 N. W. 736. So, also, a Secretary
of State has been required to count votes for congressman transmitted to
him from the various counties, and issue a commission to the candidate
receiving the greatest number. Pacheco v. Beck, 52 Cal. 3, 10. This same
duty of canvassing a vote cast has been compelled when reposed in the
Governor, marshal and Secretary of State, the court holding that it in-
volved the exercise of no more discretion than adding a column of figures.
Chumasero v. Potts, 2 Mont. 256, 292.
The duty of a State auditor or controller in drawing warrants upon
the State treasurer is often ministerial. So that he may be compelled to
issue such a warrant for the payment of the salary of another executive
officer, as a Secretary of State (Page v. Hardin, 8 B. Mon. 652; State v.
Hickman, 9 Mont, 377, 23 Pac. 742) ; or a district attorney (Swann v.
Buck, 40 Miss. 268, 290); or a controller (Thomas v. Owens, 4 Md. 189) ;
or a court stenographer's salary (Pickle v. McCall, 86 Tex. 218, 24 S. W.
265) ; or of an allowed claim (State v. Auditor, 47 La. Ann. 1686, 18 South.
1 Cr. 137-180 NOTES ON U. S. REPORTS. ' , 128
«
748) ; and to pay a State printer for work done, there being no dispute as
to the amount of the claim (Fish v. Cuthbert, 2 Mont. 593, 605). But the
right to .compel an auditor by, mandamus to issue a warrant upon the State
treasurer for the payment of a reward offered has been questioned. State
ex rel. v. Auditor, 61 Mo. 263, 268.
The duty ^posed upon other ofiicers, such as a State board of education,
directed by statute to draw warrants upon the State treasurer for the
payment of obligations incurred is also ministerial in some instances, and
may be controlled by mandamus. Granville etc. Board v. State Board of
Education, 106 N. C. 83, 10 S. E. 1002. So, also, the Governor of a State
may be mandamused in the performance of this duty in those jurisdictions
where mandamus to that officer is allowed. Gotten v. Ellis, 7 Jones (N. G.),
550.
Sometimes also the act of the v. register of a government land office in
preparing and signing the patents for public lands may be enforced by
mandamus. This is true where all necessary conditions have been com-
plied with by the claimant. State ex rel. v. Nicholls, 42 La. Ann. 223, 7
South. 744. In a Texas case this duty was compelled where the grant of
land was to a railroad company upon condition that a certain portion
of its road was first to be completed, though the court was divided in
opinion and the leading case was called in question by the dissentients.
Kuechler v. Wright, 40 Tex. 632, 651, 652, 659, 685, 689 ; and see Houston
etc. R. R. V. Kuechler, 36 Tex. 382, 411. But it has been held by Mr. Justice
Miller at circuit that the duty of a register ai^d receiver of the land depart-
ment in acting upon claims to pre-emption o£ land is not a mere ministerial
duty. **They have first to determine whether the land which is the sub-
ject of the claim belongs to the government, and is not already taken up
under some superior claim, and then whether the party claiming has made
the requisite improvement, and has shown the required residence on the
land. All these questions are to be investigated in a manner which re-
quires the exercise of judicial judgment and discretion, and are the very
reverse of ministerial." Litchfield v. Register, 1 Woolw. 309, Fed. Gas.
8388. Accordingly he refused to issue an injunction restraining the issu-
ance of patents to such lands. Litchfield v. Register, 9 Wall. 575, 19
L. Ed. 681. In another case the national Supreme Gourt held that the act
of the Secretary of the Interior in ordering the cancellation of an entry
under which defendants claimed an equitable interest iiv certain lands was
not at all a ministerial act subject to control by mandamus or injunction.
''The action of the officers of the law department," said the court, per
Mr. Justice Miller, referring to ministerial acts, "with which we are asked
to interfere in this case, is clearly not of this character. The validity of
plaintiff's entry, which is involved in their decision, is a question which
requires the careful consideration and construction of more than one act of
Gongress. It has been for a long time before the department, and has
received the attention of successive secretaries of the interior, and has
been found so difficult as to justify those officers in requiring the opinion
of attorney general. It is far from being a ministerial act under any
definition given by this court." Gaines v. Thompson, 7 Wall. 353, 19
129 MARBURY v. MADISON. 1 Cr. 137-180
L Ed. 65. A later ease in the same court, however, decided that the Secre-
tary of the Interior might be enjoined from revoking a grant of a right of
way through certain lands which his predecessor had given, it being a
plain jfiolation of private rights. Noble v. Union etc. Co., 147 U. S. 171,
37 L. Ed. 125, 13 Sup. Ct. 272. But it has been held that the courts are
without jurisdiction to 'enjoin an order of the postmaster-general, prohibit-
ing a certain corporation from using the money order department, he hav-
ing, in the exercise of a discretionary duty imposed by Congi'ess, decided
that the corporation was using the mails in the conduct of a lottery.
Enterprise etc. v. Zumstein, 67 Fed. 1007, 37 U. S. App. 71.
Nor may they mandamus the speaker of the State assembly to compel
him to transmit a bill to the State senate. £x parte Echols, 39 Ala. 700,
88 Am. Dec. 751.
Elsewhere it has been held that the duty of a county clerk in making
out notices for an election, naming the offices to be filled, was ministerial
and enforceable by mandamus. Fisher v. Dabbs, 6 Yerg. 152. As also
the duty of a court clerk to issue an order of sale upon a judgment ren-
dered. Moore v. Muse, 47 Tex. 210, 216. And the duty of the overseers
of a highway in opening a certain road to the public (State v. Holliday,
8 N. J. L. 206, 208) ; or in paying assessed damages on a highway laid out
by them. Treat v. Middletown, 8 Conn. 243, 247. A purchaser at execu-
tion sale may mandamus the proper officer to compel delivery of a deed at
the expiration of the redemption period. Whiting v. Butler, 29 Mich. 122,
139. A North Carolina statute required the treasurer of the State to
deliver over to a railroad company certain railroad mortgage bonds upon
tender of State bonds ; and this was held a ministerial duty, although there
were many kinds of State bonds on the market, and it was sus:gestcd that
there might be some discretion as to which the treasurer was to accept.
Kaleigh etc. R. R. v. Jenkins, 68 N. C. 502, 504. While an executive officer
or board may be vested with discretion as to the manner of discharging
certain duties, they may sometimes still be mandamused to exercise that
discretion. Howell v. Cooper, 2 Colo. App. 531, 31 Pac. 523. The presi-
dent of a municipal council may be compelled by mandamus to sign an
ordinance where his refusal rested solely upon an assumption of fact as to
its irregularity, which the records showed to be erroneous. State ex rel.
V. Meier, 143 Mo. 446, 43 S. W. 307.
But where the terms of the statute prescribing the duty whose perform-
ance is sought to be secured by mandamus are not peremptory and manda-
ton', the conclusion is that the officer is invested with discretion in the
matter. Accordingly, where a statute requires a State treasurer to pay
out money, if, ''in his opinion" the amount is due, the duty of the treas-
nrer in that connection is a discretionary one. Louisiana College v. State
Treasurer, 2 La. 394, 396. So, also, a statute declaring that ^^the post-
master may, upon evidence satisfactory to him," that a person is conduct-
ing any fraudulent lottery, deny to such person the privileges of the regis-
tered letter and money order system, reposes a discretion which may not
be controlled by injunction. Enterprise etc. Assn. v. Zumstein, 64 Fed.
840, 37 U. S. App. 71 ; see, also, N. 0. Nat. Bk. v. Merchant, 18 Fed. 851.
1—9
1 Cr. 137-180 NOTES ON' U. S. REPORTS. 130
The Supreme Court of Idaho decided that mandamus would not lie to
compel the Secretary of the Territory to deliver over to the Speaker of
the house the house journal, in order that certain corrections might be
made therein, it being the duty of the secretary to keep such joum^, and
no statutory provision requiring its delivery under such circumstances.
Burkhart v. Reed, 2 Idaho, 483, 22 Pac. 6.
The duty of the President of the nation in carrying out the laws is, of
course, clearly not a ministerial duty, although the question was considered
sufficiently doubtful to warrant a test in the Federal Supreme Court.
Mississippi v. Johnson, 4 Wall. 498, 18 L. Ed. 441. An injunction was
there sought and refused against President Johnson to restrain him from
signing and carrying out an act of Congress alleged to be unconstitutional.
The appointment and removal of officers and employees involves the exer-
cise of judgment or discretion, and is not controllable by mandamus. Tay-
lor V. Kercheval, 82 Fed. 499. Mandamus to a State officer to compel the
payment of coupons upon State bonds has also been held to be an inter-
ference with the political department of the government, and the duty
devolving upon such officer something more than a mere ministerial duty.
Louisiana v. Jumel, 107 U. S. 743, 27 L. Ed. 459, 2 Sup. Ct. 154. The duty
of choosing a site for public buildings, and purchase of land therefor, is
not ministerial. State v. Lord, 28 Or. 525, 43 Pac. 478. Finally, it may
be added that in applications for mandamus against an executive officer,
the courts will consider the practical consequences of its issuance, and
refuse it if the result would be to subvert some well-recognized principle
of the law; as that the sovereign may not be sued except by consent
(Reeside v. Walker, 11 How. 292, 113 L. Ed. 701); or to lead to some
absurd results, as to compel the Secretary of War to sign a contract with
a party already under contract to perform the same service at a less
amount. United States ex rel. v. Lamont, 155 U. S. 308, 39 L. Ed. 163,
15 Sup. Ct. 98. This is, of course, no more than saying that the applicant
must establish in himself a legal right to the performance of the act sought,
a principle underlying the issuance of the writ in all oases.
The question of the right to mandamus the chief executive of a State
presents so many features that are distinct from those involved in the
question of mandamus to other executive officers as to justify a separate
examination. The courts seem to be about equally divided upon the ques-
tion, some holding that the Governor of a State may be mandamused to
compel the performance of a mere ministerial duty involving the exercise
of no discretion and which might as well have devolved upon another
officer;, and others, that under no circumstances will this remedy lie
against so high an officer.
The citations show that the principal case has been cited as authority
upon both sides of this controversy, and in cases whose conclusions are
directly contradictory. It is cited in the following cases, affirming the
right to mandamus: Tennessee etc. R. R. v. Moore, 36 Ala. 380, 381,
McCauley v. Brooks, 16 Cal. 41, 44, 52, Middleton v. Low, 30 Cal. 601,
Harpending v. Haight, 39 Cal. 210, 2 Am. Bep. 445, Greenwood etc. Co.
V. Routt, 17 Colo. 169, 81 Am. St. Bep. 294, 28 Pac. 1129 , Martin v. Ingham,
131 MARBUBY v. MADISON. 1 Cr. 137-180
38 Kan. 653, 657, 17 Pac. 169, 171 , Magruder v. Swann, 25 Md. 209 , Brown
V. Bragunier, 79 Md. 236, 29 Atl. 8, Gotten v. Ellis, 7 Jones (N. C), 545, 550,
State ex rel. v. Chase, 5 Ohio St. 528, 535, Mott v. Pennsylvania R. R.,
30 Pa. St. 9, 33, 72 Aln. Dec. 679 , State ex rel. v. Marks, 6 Lea, 21 , State
V. Farwell, 3 Pinn. 438 , and see Slack v. Jacob, 8 W. Va. 662 , Woods v.
Sheldon, 9 S. D. 407, 69 N. W. 607. It is relied on to the contrary in
Hawkins v. Governor, 1 Ark. 584, 589, 33 Am. Dec. 849, 353, Niles v.
Bradford, 22 Md. 184, 86 Am. Dec. 645, People ex rel. v. Morton, 156 N. Y.
141, 162, 66 Am. St Rep. 650, 50 N. E. 792 , distinguished in State ex rel.
V. Drew, 17 Fla. 73, 74, 86, State ex rel. v. Warmoth, 22 La. Ann. 3, 2
Am. Rep. 714, Dennett, Petitioner, 32 Me. 511, 64 Am. Dec. 603, White
Creek etc. Co. v. Marshall, 2 Baxt. 123 , Bates v. Taylor, 87 Tenn. 332, 11
S. W. 269, and rejected and criticised as dictum in Hovey v. State, 127
Ind. 595, 22 Am. St. Rep. 668, 27 N. E. 177, People ex rel. v. Governor^
29 Mich. 320, 327, 18 Am. Rep. 96, Pacific R. R. v. Governor, 23 Mo. 359,
66 Am. Dec. 677, State ex rel. v. Fletcher, 39 Mo. 394, State v. Governor,
25 N. J. L. 331, 352, all of wliich deny the right to mandamus the chief
executive of a State. To the same effect, also, are State v. Lord, 28 <3r.
525, 43 Pac. 478, Low v. Towns, 8 Ga. 372. On the whole, therefore,
while courts affirming the existence of the right to mandamus a State
Governor, place much weight upon it as authority, courts holding to the
eontrary seek rather to deny its applicability in the matter at all. Cer-
tainly the speeifie question of the right to mandamus a State Governor
was not at all in the mind of Chief Justice Manhall in the leading case,
but it is made undeniable by the citations that the courts affirming the
existence of the right have placed reliance upon certain expressions in
the opinion which may well be considered as fully applicable, and calcu-
lated to sustain their position. Thus, where, after disclaiming all in-
tention to interfere in the political affairs of trie government, the court
observes: ''But if this be not such a question, ... if it be no inter-
meddling with a subject over which the executive can be considered as
having exercised any control; what is there in the exalted station of the
officer which shall bar a citizen from asserting in a court of justice his
1^^ rights, or shall forbid a court to listen to the claim, or to issue a
mandamus, directing the performance of a duty not depending on execu-
tive discretion but on particular acts of Congress and the general principles
of law." And again: **It is not by the office of the person to whom the
writ is directed, but the nature of the thing to be done that the propriety
or impropriety of issuing a mandamus is to be determined." ''Notwith-
standing this proposition has been characterized as obiter," said the
Supreme Court of Colorado, referring to the foregoing in affirming the
right to mandamus the State Governor, "it has served as a text for
numerous judicial decisions, State and Federal." Greenwood etc. Co. v.
Routt, 17 Colo. 167, 31 Am. St. Rep. 292, 28 Pac. 1128.
The principal case has also been cited as authority with respect to the
eases in which a subordinate court or judge may be mandamused- by a
higher court. It has been seen above, supra, that courts possessing only
appellate jurisdiction may issue the writ in such cases; and that the lead-
1 Cr. 137-180 NOTES ON U. S. REPORTS. 132
ing ease settled the proposition that this is an exercise of appelate juris-
diction. The terse principle propounded by Chief Justice Marshall, that
it is not the person to whom the writ is directed, but the nature of the
thing to be done that determines the propriety of its issuance, has also
been followed by the courts in determining when it may properly issue
to a subordinate court or judge. Here, too, we find that it is a cardinal
rule that mandamus is not to be made a means for controlling and direct-
ing discretionary matters. Ex parte Newman, 14 Wall. 165, 20 L. Ed.
879; People v. Pearson, 2 Scam. 204, 38 Am. Dec. 448; Ex parte Harris,
52 Ala. 90, 23 Am. Rep. 560; Jelley v. Roberts, 50 Ind. 1, 4. It may issue
to compel the performance of a mere ministerial duty, or to compel a
court to act in cases in which it has jurisdiction and refuses to do so.
As to compel a circuit judge to take cognizance of a case properly ap-
pealed from the District Court. Insurance Co. v. Comstock, 16 Wall. 270,
21 L. Ed. 498. But when a court has acted, and exercised its judicial dis-
cretionary power, this remedy is not a proper method of obtaining a review,
even though there be no other. Ex parte Newman, 14 Wall, 152, 20 L. Ed.
877. Nor is it proper to use the writ to re-examine a judgment or decree
of a subordinate court, or to direct what judgment or decree shall be
entered.
The rule is best illustrated by those cases in which it is sought to com-
pel a subordinate court or judge. to sign and settle a bill of exceptions.
This is a ministerial act, and it is well settled that its performance may
be compelled by mandamus. Ex parte Crane, 5 Pet. 189, 8 L. Ed. 92;
Jelley v. Roberts, 50 Ind. 1, 4; People v. Pearson, 2 Scam. (111.), 204, 33
Am. Dec. 448. But the appellate court cannot go further and specify the
contents of a bill, or direct the signing of a particular bill, unless the
trial judge has admitted gits entire accuracy. **A11 that a judge can be
required to do is to sign such a bill as presents the facts in accordance
with his knowledge and recollection, since this must necessarily be the
test in determining what particular bill shall be signed." High on Extraor-
dinary Legal Remedies, § 202, quoted in Jelley v. Roberts, 50 Ind. 1, 5.
Nor will a judge, having signed and sealed one bill of exceptions, be com-
pelled to sign a second, where he alleges the first to be correct and denies
the accuracy of the second. Or where the first was inaccurately drawn
and an amended bill subsequently offered, the judge having meantime for-
gotten the circumstances and so being unable to vouch for the accuracy
of the bill as amended. People ex rel. v. Anthony, 128 111. 223, 21 N. E.
781.
But the applicability of mandamus as a remedy where the actions of a
lower court are concerned is not limited to bills of exceptions. Elsewhere
it has issued from the Supreme Court of the United States to the Federal
Circuit Court to compel the removal of a cause into a State tribunal. Vir-
ginia V. Rives, 100 U. S. 327, 25 L. Ed. 672. A judge has been thus com-
pelled to approve the bond of a tax collector, there being no other objec-
tion than the delay of the officer in offering the same. State ex rel. v.
Ely, 43 Ala. 576. So, also, the bond of a sheriff, Ex parte Harris, 52 Ala.
87 90 23 Am. Rep. 560. The Supreme Court of Louisiana has compelled
133 MARBURY v. MADISON. 1 Cr. 137-180
a probate judge, by mandamns, to appoint a tutor for certain minor chil-
dren (State v. Bermudez, 14 La. 478), and to admit ^ a certain will to
probate (Succession of Wedderbum, 1 Rob. (La.) 265) ; while the Supreme
Court of Tennessee has compelled the clerk of the Probate Court to trans-
mit a certain record to the County Court (Fisher v. Dabbs, 6 Yerg, 152),
though refusing mandamus to a judge who had refused to grant a writ of
habeas corpus. State v. Elmore, 6 Cold. 531.
The principal case has been distinguished on the syllabus point in State
V. Huston, 27 Okl. 613, 84 L. R. A. (N. S.) 380, 113 Pac. 192, District Courts
of Oklahoma have no jurisdiction to control action of Governor, even in
ministerial acts; dissenting opinion in White v. Auditor, 126 N. C. 609, 36
S. E. 144, majority holding mandamus lies to compel auditor to issue war-
rant for oyster inspector's salary.
When mandamus is the proper remedy against public officers. Note,
98 Am. St. Rep. 874.
Right to mandamus against public officer. Note, 16 E. R. 0. 787.
Mandamus to Governor. Note, 6 L. R. A. (N. S.) 759, 765.
Superintending control and supervisory jurisdiction over inferior or
subordinate tribunal. Note, 51 L. R. A. 67, 84, 104.
Right of action against public officers. Note,- 1 E. R. 0. 827.
A il^t to an appointive office is complete when the appointing power
has done everytbing to be perfonned by him. Neither delivery of the com-
miasion nor acceptance is necessary to complete an appointment. When com-
plete it is irrevocable.
Approved in Harrington v. Pardee, 1 Cal. App. 280, 82 Pac. 84, under
Stats. 1887, p. 67, c. 57, appointment is not complete until commission is
issued; United States v. Newman, 42 App. D. C. 100, Ann. Oas. 1915D,
1146, inquiry into residential qualifications of commissioner of District
of Columbia not judicial invasion of executive discretion in making ap-
pointments; In re William Connors Paint Mfg. Co., 27 App. D. C. 391,
commissioner of patents may refuse to register trademark in simulation
of great seal of the United States; Commissioners etc. v. Byars, 167 Ky.
308, 180 S. W. 381, commissioner of motor vehicles appointed for definite
term cannot be removed by board making appointment in absence of stat-
ute conferring such right; Little v. Schul, 118 Md. 462, 84 Atl. 652,
constable lawfully appointed for term fixed by Constitution could not be
deprived of office by legislature; McCarthy v. Commonwealth, 204 Mass.
484, 90 ^N. E. 879, on removal of member of district police, forty-eight
hours held reasonable notice ; Germaine v. Ferris, 176 Mich. 593, Ann. Cas.
1915B, 418, 46 L. R. A. (N. S.) 857, 142 N. W. 741, official action of Gov-
ernor in removing mayor cannot be reviewed by certiorari without invasion
of executive functions of government; Attorney General v. Oakman, 126
Mich. 721, 86 N. W. 152, holding senate has power, before action taken
on vote, to reconsider its consent to an appointment by the Governor;
Sperry v. Barber, 77 N. J. L. 56, 71 Atl. 64, term of office of deputy tax
receiver expires with that of tax receiver who appointed him; Territory
1 Cr. 137r-180 NOTES ON U. S. REPORTS. 134
V. Armijo, 14 N. M. 219, 89 Pac. 272, power of removal cannot be implied
from appointing power, allowing Governor of ten'itory to remove sheriff
elected by people; Territory v. Armijo, 14 N. M. 221, 89 Pac. 272, Gov-
ernor 's power to commission officers elected by people does not imply power
of removal ; Wheeler v. Lawson, 103 N. Y. 40, 79 Am. St. Rep. 557, 57 N. E.
91, holding civil service provision void; State v. Breckinridge, 34 Okl. 659,
126 Pac. 810, appointment, under act of 1909, creating Superior Courts
and providing that Governor appoint judges to serve until 1910 elections
take place, continues for next term where court established too late for
1910 election; State v. Rhame, 92 S. C. 459, 461, Ann. Gas. 1914B, 519,
75 S. E. 883, removal of State bank examiner not incident to Gk>vernor'8
power to appoint where length of term is fixed by statute and no authority
to remove is given; Hardy v. Reamer, 84 S. C. 490, 66 S. E. 679, statute,
giving mayor and aldermen power to establish board of police commis-
sioners with four year term does not authorize removal of member or abol-
ishing board by ordinance ; State v. Tyrrell, 158 Wis. 433, 149 N. W. 283,
election of city attorney by common council complete, therefore irrevocable.
Issuing of certificate by city clerk ministerial act and no part of appoint-
ing power ; dissenting opinion^ in State v. Moores, 55 Neb. 527, 76 N. W.
190, majority holding Laws of 1897, c. 10, Comp. Stats, c. 12a, void as
being attempt to infringe on right to local self-government.
Distinguished in Mcfeeever v. Colvin, 31 Okl. 718, 123 Pac. 158, Gov-
ernor's power to fill vacancy in office of county assessor not exhausted by
one appointment, but exists until successor elected; dissenting opinion in
White V. Auditor, 126 N. C. 610, 612, 36 S. E. 144, 145, majority holding
mandamus lies to compel auditor to issue warrant for oyster inspector's
salary.
The citations show that the propositions of law laid down in the syllabus
have been extensively relied on in later decisions. The rule that an appoint-
ment is complete when the last act to be done by the appointing power
has been performed, has been followed and approved in many cases.
Conger v. Gilmer, 32 Cal. 79; People v. Perkins, 85 Cal. 513, 26 Pac. 247;
Morgan v. Vance, 4 Bush (Ky.), 323, 328; State ex rel. v. Love, 39 N. J. L.
14, 21; People ex rel. v. Fitzsimmons, 68 N, Y. 518; State v. Hamilton Co.,
7 Ohio, 145; Lane v. Commonwealth, 103 Pa. St. 485; Seaman v. North-
western Mutual Life Ins. Co., 86 Fed. 497. It holds true whether the
appointing power be a single officer, as in Marbury v. Madison, or an
executive board, such as a board of supervisors (Conger v. Gilmer, 32
Cal. 79) ; or a mayor and board of aldermen (State ex rel. v. Dews, Charlt.
(Ga.) 425, 430) ; or a municipal board of finance and taxation (State ex
rel. V. Love, 39 N. J. L. 21). It is not at all necessary that the api^int-
ing power be at the time aware that its acts are final. A nomination to
an office, made under the erroneous impression that the approval of an-
other body was necessary, has been held a valid appointment, because
the appointing power had performed the last act necessary. People ex rel.
V. Fitzsimmons, 68 N. Y. 519. And in a Virginia case a board of bank
directors had proceeded to a second election thinking the first to have
been ineffective. Booker v. Young, 12 Gratt. 309.
/
135 MARBURY v. MADISON. 1 Cr. 137-180
The test is always whether the final act has really been performed, not
whether the appointing power so intended its acts — ^provided, .of course,
that there be no fraud or undue influence. A Connecticut case will illus-
trate this point. A municipal common council, authorized to appoint a
prosecuting attorney, met for that purpose and voted 'Ho proceed to
ballot for a prosecuting attorney." A ballot having been taken and one
Coogan having received a clear majority of all the votes cast, and this
result being announced by the presiding officer, a resolution was offered
that Coogan be declared elected. This resolution was lost. Two resolu-
tions were then offered and adopted, one declaring the ballot to be void
by reason of errors (which ilf was found did not exist), and the other
declaring that one Barbour be deemed '^ elected and appointed prosecut-
ing attorney." The court, decided that the first vote taken, there being
no fraud of any kind, was valid and binding; and that the result was to
confer upon Coogan a right to the office. State ex rel. v. Barbour, 53 Conn.
89, 22 Atl. 689. This, however, is not to be understood as depriving a de-
liberative body of a right to reconsider its acts when any just ground for
so doing exists, as an illegal vote, or a participation of those not qualified.
It is, of course, immaterial that the appointment is not to take effect
until some future day, for when the appointment has once been made^
it is final and irrevocable, and the appointing power may not choose another
before the first appointee enters upon its duties. Whitney v. Van Buskirk,
40 N. J. L. 470.
But the right to the office is incomplete so long as anything remains
undone by the appointing power, for it is still possible by refusal to per-
form such act to render the whole proceedii^ nugatory. An Ohio case
illustrates this proposition. There the question was as to the validity
of an appointment to the office of clerk of a County Court. The claimant
rested his case upon a certain writiilg signed by three of the four judges,
in form following: **We agree to the appointment of Samuel H. Good-
win to the office of clerk of the Court of Common Pleas," etc.; and upon
the order given for the entry of this appointment in the minute-book of
the court The entry was in fact never made, and the appointment was
later repudiated. A statute required that the minutes of the court should
be publicly read before every adjournment, corrected, and then signed by
the presiding judge; and that ''no proceedings, orders, judgments or
decrees . . . shall be in force or valid until so recorded and signed." The
court, therefore, held that the appointment was not completed by the writ-
ing, that something yet remained to be done, and that until the signing
of the minutes containing the appointment the court might reconsider and
recall its former actions. State v. Hamilton Co., 7 Ohio, 134.
In the proxx)sition that an appointment is complete upon the performance
of the last act of the {^pointing power is involved the further propo-
sition that the acceptance of such appointment is unnecessary. This is
undeniably true so far as the right to the office is concerned. The Su-
preme Court of Alabama also argued, therefrom, that the resignation of
an officer might be effective before acceptance. State ex rel. v. Fitts, 49
Ala. 402.
1 Cr. 137-180 NOTES ON U. S. REPORTS. 136
But the eitations have not interpreted the leading case as holding that
the appointee is completely inducted into office for all purposes. In an
early New Hampshire case it became material to determine whether the
office of collector of taxes was filled by one J., who had been appointed
but had not taken the oath of office, or by a later appointee whose appoint-
ment was, of course, invalid if J. was actually incumbent. The court de-
clared, per Woodbury, J., that "In no case can the office itself be con-
sidered as filled till the acceptance of the appointment by the person
chosen." Johnston v. Wilson, 2 N. H. 203, 9 Am. Dec. 51. And, again,
in a Califoi^ia case, the successful candidate for the office of State Con-
troller had meanwhile been appointed surveyor-general by the Federal
government though he had not accepted or qualified as such. The State
Constitution prohibited his holding both offices, and the* unsuccessful can-
didate, therefore, claimed the commission as State controller. But the
court held that as his competitor had not accepted or qualified for the
Federal office, he did not hold such office within the meaning of the con-
stitutional prohibition. People ex rel. v. Whitman, 10 Cal. 38, 43, 44.
"To constitute the holding of an office, within the meaning of the Constitu-
tion," observed the court, per Burnett, J., "there must be the concurrence
of two wills — ^that of the appointing power and that of the person ap-
pointed. If the mere tender of a commission could produce this result,
then it would be in the power of the President to disqualify any person
from holding a State office without his consent." "To a complete in-
vestiture of an office," said Mr. Justice Field in the same case, "the acts
of the appointing power and of the person appointed must in some in-
stances concur. The appointment is complete when the commission is
signed by the President, but it is competent for Congress to require the
performance of certain acts by the appointee, such as the execution of
security, the taking of the oath of office, and the like, before he can enter
upon the possession of the office. ' '
As has been seen above. Chief Justice Marshall sought further to justify
the proposition that acceptance was not necessary to complete the appoint-
ment by declaring that such was the understanding of the government
upon the question, calling attention to the fact that the salary of an officer
commenced from the appointment and not from the transmission or accept-
ance of his commission ; and also observing, that where an appointee refuses
to accept, the successor is nominated in his place, and not in place of the
one originally creating the vacancy. The latter as well as the former of
these propositions seems to refer to a mere custom of the executive depart-
ment of the government. Justices of Jefferson Co. v. Clark, 1 T. B. Mon. 85.
Both have upon occasion been misunderstood and regarded as holdings of
the court in the leading case. In two Maryland cases the statement that the
salary of an officer began from the time of his commission was made the
basis of a claim for salary from the date of an election, rather than the day
when the duties of the office were formally undertaken. And in both, the
Supreme Court of Maryland criticised this "dictum" of Marbury v. Madi-
son as inaccurate, in holding that salary properly began from the time
when the appointee qualified. Thomas v. Owens, 4 Md. 220, 227; Jump v.
lar MARBURY V. MADISON. 1 Cr. 137-180
Spence, 28 Md. 1, 11. Elsewhere the statement is more accurately inter-
preted as the custom of the Federal government (Haight v. Love, 39 N. J. L.
479, 23 Am. Bep. 236); or the common-law role applicable in the absence
of statute indicating a contrary intent. Burks v. Hinton, 77 Va. 37.
The second statement, that an appointee before acceptance is regarded
as so far invested with the office that in case of his refusal to accept the
successor is nominated in his place, has also been cited as though a propo-
sition of law laid down by the court. Johnson v. United States, 5 Mason,
4S8, Fed. Cas. 7419; Booker v. Young, 12 Gratt. 309. Mr. Justice Story
so interpreted it, suggesting as a possible deduction that a new appoint-
ment, before acceptance by the appointee, would operate as a complete
removal from office of the incumbent. Johnson v. United States, 5 Mason,
425, 438, Fed. Cas. 7419. The true purport of the statement is properly
understood in a Kentucky case, and by the reporter's note it appears that
the practice of the State executive department is similar. ^' There is
obviously," said the court, ''in the practice of the general government,
an intrinsic fitness and propriety; for, otherwise, as an appointment may
be refused verbally, there would be nothing in the records of the execu-
tive department to show the refusal, and two or more appointments would
appear to have been made to fill the same vacancy." Justices of Jefferson
Co. V. Clark, 1 T. B. Mon. 82, 85.
It thus appears from the foregoing, that while an appointment to office
is complete when the last act of the appointing power has been performed,
yet that until acceptance and proper qualification the appointee is not
to be regarded as actually holding the office for all purposes. The unilat-
eral act of the appointing power cannot be made the means of fastening
upon such appointee obligations or duties which he has not undertaken,
and of which perhaps he is entirely ignorant. For certain incidental or
administrative purposes indeed, the appointment does suffice in legal con-
templation to make the appointee the incumbent of such office. But it is
safe to say that while it is binding upon the appointing power, and while
it confers upon the appointee a right, it may not be made an instrument
of injustice to the one upon whom it is bestowed.
Delivery of the commission is no more necessary to confer a right to an
office than is acceptance of the appointment. The proposition is of more
extensive application than to the case of the commission to an office. ''In
all cases of letters patent," observed Chief Justice Marshall, "certain
solemnities are required by law, which solemnities are the evidences of the
validity of the instrument, a formal delivery to the person is not among
them." 1 Cr. 137, 159, 160. See Conklin v. Cunningham, 7 N. M. 460,
38 Pac. 174. None of the citations on this point are concerned with com-
missions to an office, though several cases cite the leading case in holding
that delivery is not necessary to the validity of a patent to public lands.
Sayward v. Thompson, 11 Wash. 709, 40 Pac. 380. Accordingly title
passes when the patent has been duly signed and sealed, without delivery.
United States v. Schurz, 102 U. S. 395, 26 L. Ed. 171 ; Le Roy v. Clayton,
2 Sawy. 493, 496, 497, Fed. Cas. 8268. An entry made in a public record
of a grant by the Sxmnish government in the early days has been held
1 Cr. 137-180 NOTES ON U. S. REPORTS. 138
operative to pass title. Lavergne's Heirs v. Elkins' Heirs, 17 La. 227. So,
also, an entry made by a town alcalde in the official book. Donner v.
Palmer, 31 Cal. 513. The principle of the leading case has also been ap-
plied to the case of a prosecution for failure to obtain a steamboat license.
It appeared that the license had been duly executed, sealed, signed, dated
and numbered, but not actually delivered to the party; and the court held
delivery unnecessary so far as the prosecution was concerned. Steamboat
Planter, Newb. 267, Fed. Cas. 16,054.
An executive pardon has been held to differ from other letters patent
and to require delivery for its validity. In re De Puy, 3 Ben. 316, Fed.
Cas. 3814. A delivery by transmission to the warden of a penitentiary
has been held sufficient upon the analogy of Marbury v. Madison (Ex
parte Powell, 73 Ala. 522, 49 Am. Bep. 76) ; though delivery to a United
States marshal has been deemed inoperative to deprive of the right of
withdrawal again. In re De Puy, 3 Ben. 316, Fed. Cas. 3814.
While, however, delivery is not generally necessary to the validity of
an appointment, there may be circumstances under which, by the terms
of the appointment, delivery is necessary to its completion. Thus, where
an appointment of a guardian is made upon the express condition that
it is to be delivered to the appointee when the proper bond is filed, and
the instrument of appointment is so indorsed, the appointee may not as-
sume to act without compliance with such condition. Fay v. Hurd, 8
Pick. 631.
Where the appointee is to hold at will the appointment is, of course,
at any time revocable (Parson v. United States, 167 U. S. 337, 42 L. Ed.
189, 190, 17 Sup. Ct. 884, 885); but in all other cases the appointing
power has no further control over the appointment after the performance
of the last act necessary to its validity. In other words, the appointment
is then irrevocable. Speed v. Common Council, 97 Mich. 207, 56 N. W.
573 ; Brady v? Howe, 50 Miss. 621 ; Myers v. Chalmers, 60 Miss. 772, 789 ;
State ex rel. v. Love, 39 N. J. L. 21; Whitney v. Van Buskirk, 40 N. J. L.
470 ; People ex rel. v. Murray, 70 N. Y. 526 ; Ewirig v. Thbmpson, 43 Pa. St.
372, 375; State ex rel. v. Barbour, 53 Conn. 85, 86, 55 Am. Rep. 68, 69,
22 Atl. 688, 689. The appointee has a vested right to the office which the
law will protect. Butler v. White, 83 Fed. 578, 582, 588. And when the
power of appointment has once been exercised, it is exhausted, and a sub-
sequent appointment, in the absence of a proper revocation, is void. State
ex rel. v. Finnerud, 7 S. D. 245, 64 N. W. 124. The remedy of an ag-
grieved appointee is often mandamus to compel the performance of those
ministerial acts necessary to invest the appointee with the evidence of
office which may be necessary in the particular case. As to compel the
approval of a bond by a board of aldermen. Speed v. Common Council,
97 Mich. 207, 56 N. W. 573. In a proper case injunction will lie to re-
strain a subsequent unlawful appointee from taking p>ossession of the
office, books, etc. Ewing v. Thompson, 43 Pa. St. 372, 375; and see Butler
V. Wbite, 83 Fed. 578, 588. Or where the purpose is to oust from office
one improperly installed, and to secure the place for the lawful appointee,
quo warranto is the proper proceeding to try the title to such office.
139 MARBURY v. MADISON. 1 Cr. 137-180
Brady v. Howe, 50 Miss. 621; State ex rel. Haight v. Love, 39 N. J. L.
21 ; Haight v. Love, 39 N.^J. L. 479, 23 Am. Rep. 236; State ex rel. Whit-
ney V. Van Buskirk, 40 N. J. L. 470 ; People ex rel. v. Murray, 70 N. Y. 526.
In the foregoing discussion of the irrevocability of appointments and of
the precise time when an appointment becomes complete and irrevocable,
no particular reference has been made to cases in which the title to an office
is acquired by election rather than by appointment. Nor is there any
distinction to be drawn between the two classes of cases so far as the
present discussion is concerned. In each the essence of the act is choice.
And in both instances this choice is irrevocably made, in accordance with
the principle of the leading case, whenever the person or body aggregate,
invested with the power to choose, has performed the last act required of
it by law. Accordingly the authorities have extended the doctrine of the
principal case to controversies as to the title to an elective ofi&ce. State
ex rel. v. Barbour, 53 Conn. 83, 55 Am. Rep. 66, 22 Atl. 687; Sprowl v.
Lawrence, 33 Ala. 674, 689; Wright v. Lanckton, 19 Pick. 290; State v.
Johnson, 17 Ark. 414.
The right to an elective office rests, therefore, upon the choice of the
electors and not upon the commission, just as an appointment depends
upon the act of the appointing 'power and not the actual execution and
delivery of the commission. Accordingly, when a candidate has received
a majority of the votes polled, been declared elected by the election judges,
and commissioned by the Gt)vemor, he is, nevertheless, not duly elected
if it appear that the majority arises because of the votes of electors not
properly qualified. It is the free choice of the qualified electors that
confers a right to the office. State v. Johnson, 17 Ark. 414. So, also,
where an academic board of trustees votes that a certain degree be con-
ferred, this vote operates to confer such degree, and is not merely i an
authority to the president or other competent officer to do so. Wright v.
Lanekton, 19 Pick. 290. Nor can the failure of a Secretary of State to
deliver the returns of an election for Gk>vemor to the Speaker of the
house of representatives deprive the party elected of his right to the office.
£x parte Smith, 8 S. C. 519. ''If there be a commission, or an oath of
office, or any ceremony or inauguration, these are forms only, which may
or may not be necessary to the validity of any acts under the appoint-
ment, according as usage or positive statute may or may not render-
them indispensable." Johnson v. Wilson, 2 N. H. 202, 9 Am. Dec. 50.
The filing of a bond on oath of office or other ceremony is, therefore, not
a condition precedent to the vesting of a title to an office, but rather a
condition subsequent whose nonperformance may or may not operate as
a defeasance. Sprowl v. Lawrence, 33 Ala. 689, 690. But it may and
will be a condition precedent to the right to enter upon the duties of an
office. State ex rel. v. Moffit, 5 Ohio, 366.
The principle is, of course, the same whether the election be by popular
vote or the vote of a deliberative or other assembly. A board, commis-
sion or other small executive body is generally held to appoint rather than
elect. The same has been held of a municipal counciL State ex rel. v.
Barbour, 40 N. J. L. 76.
/
I Cr. 137-180 NOTES ON U. S. REPORTS. 140
A few citations upon this point may be briefly considered. • The leading
case is cited to the point that if an office is created and the term of office
fixed for a certain definite period by Congress the executive may not re-
move him from office before that time has expired. People ex rel. v.
Jewett, 6 Cal. 292. A proposition which seems clearly to follow from the
reasoning of Chief Justice Marshall. But even where a statute fixes the
term of office for a definite time, it may yet be the intent of the statute
to invest the executive with the further power of removal within that time.
The act of Congress providing that United States district attorneys should
hold office for four years has been so construed. Parsons v. United States^
167 U. S. 335, 337, 42 L. Ed. 189, 190, 17 Sup. Ct. 884, 885. And the
power of removal has been somewhat similarly exercised in the case of
judges of the Alaska territorial court. McAllister v. United States, 141
U. S. 188, 189, 35 L. Ed. 698, 11 Sup. Ct. 954, 955. And these cases would
seem to impair the authority of the leading case upon this point very
materially. The citations do not warrant an extended discussion of the
question as to the right of removal in the case of an officer whose term
is not fixed by statute and who, ,on the other hand, is not declared to be
removable at will. It appears to be a mooted point (McDougal v. Quigon,
27 Gratt. 136), and the principal case has certainly not been regarded as
a direct authority upon the question. An Illinois case, however, cites it,
in holding that the Governor might not remove from office a Secretary of
State whose term was not prescribe\d, upon the ground that the legislature
has given him- no express authority to do so. Field v. People, 2 Scam.
93, 129.
Before proceeding to a discussion of the citations resx>ecting the nature
and legal effect of a commission to office, a few further citations remain
to be considered under the head of appointments. The principal case is
cited to the point that the power of making appointments is in general
an executive rather than a judicial or legislative function. State ex rel.
Barbour, 53 Conn. 85, 55 Am. Rep. 68, 22 Atl. 688 ; State ex rel. v. Moores,
76 N. W. 190, dissenting opinion; State ex rel. Denny, 118 Ind. 465, 21
N. E. 279; and see State v. Boucher, 3 N. D. 403, 56 N. W. 147. And,
accordingly, a statute creating a fire department in a town, and naming
the first board of commissioners, is defective for this reason, as well as
because inconsistent with the right of local self-government. State ex rel.
v. Denny, 118 Ind. 465, 21 N. E. 279 ;' and see State ex rel. v. Moores, 76
NI W. 176. But a somewhat similar provision in the charter of a muni-
cipal corporation in which the legislature named the initiatory board of
trustees was held valid, it being declared that an appointment is not neces-
sarily or essentially an executive act. State v. Swift, 11 Nev. 136; and
see Collins v. State, 8 Ind. 351; State v. Boucher, 3 N. D. 403, 56 N. W.
147. These cases would seem to indicate a conflict among the authorities
on this point, into which we may not enter. The validity of an appoint-
ment, however, is clearly a judicial question. Rice v. State, 7 Ind. 335.
A Louisiana case makes the principal case authority for the proposition
that an officer appointed for an unexpired term does not hold beyond
that term. Andrews v. Saucier, 13 La. Ann. 303. In citing and quoting
141 MARBURY v. MADISON. 1 Cr. 137-180
from the principal case to the point that an appointment must be evi-
denced by some "open unequivocal act/' the Kentucky Court of Appeals
held that a writing was not necessary to an appointment made by the
judges of a court under a statute prescribing no particular method of
making the appointment, and declared that an oral appointment was valid
and binding. Hoke v. Field, 10 Bush, 146, 19 Am. Bep. 59. Again the
principal case is cited, to the point that '^ nominate" means to recommend
for confirmation, whence the Supreme Court of Montana argued that the
appointment of a Governor without the requisite consent of the legislative
counsel was ineffective. Territory ex rel. v. Rodgers, 1 Mont. 259. And
in Lapeyre v. United States, 17 Wall. 205, 21 L. Ed. 610, the dissenting
judges found it necessary to distinguish the principal case, the majority
having held a proclamation of the chief executive operative when signed
and sealed without publication.
When appointment to public office is complete. Note, Ann. Oas. 1914D,
304, 306.
Right of appointing power to remove officer when term of office is
fixed. Note, Ann. Oas. 1914B, 525.
The coimnission of an appointee to an (Mce is mere evidence of bis title
and not neceesaxy to ita vecrtiture. As against the appointing power it is oon-
dnflive evidence.
The rule of the principal case, that a commission to office is merely evi-
dence of title and not necessary to the vesting of a right to the office, has
often been cited. Sprowl v. Lawrence, 33 Ala. 689; State ex rel. in re
Strawbridge, 39 Ala. 367, 386; State ex rel. v. Peelle, 124 Ind. 520, 24
N. E. 442; Allen v. M'Neel, 1 Mills, 459, 463; State v. Toomer, 7 Rich.
216, 227; Billy v. State, 2 Nott & McC. 361. Accordingly, it has been
held that the proceedings of a justice of the peace, duly appointed, but
without his commission, are not thereby invalidated. Billy v. State, 2
Nott & McC. 361. And that an exemption from military duty having been
duly declared, the mere failure to make out the certificate would not make
such exemption inoperative. State ex rel. in re Strawbridge, 39 Ala. 386.
The proposition that a commission is conclusive evidence of title, as
against the appointing power, has also been cited. Quimby v. Boyd, 8
Colo. 207, 6 Pac. 470. Whence it has been argued that a commission is
conclusive evidence that the appointment has been regularly made; and
that a clerical error in the date affixed to the commission of a notary pub-
lic was inoperative to defeat a conveyance of land in the execution of
which the notary participated. Quimby v. Boyd, 8 Colo. 207, 6 Pac. 470.
But if the title to the office is derived from some other source, it is held
only prima facie evidence. State ex rel. v. Peelle, 124 Ind. 520, 522, 24
N. £. 442. So, also, as against another claimant it is merely prima facie
evidence, and as such 'enables the possessor to hold the office pending a
judicial settlement. Supervisors etc. v. 0 'Malley, 46 Wis. 59, 50 N. W. 525.
Being in the nature of *'best evidence *' of title to an office, its produc-
tion is sometimes necessary to prove that one is an officer de jure, as
well as de facto. Thus, it has been required of the officer of a ship claim-
1 Cr. 137-180 NOTES ON U. S. REPORTS. 142
ing prize money as an officer, that he produce his commission, the court
holding that proof of his having acted as officer was insufficient. Allen
V. M'Neel, 1 Mills, 463.
The fact that no valid commission has been issued to an officer cannot
be set up as a defense in an action upon his bond, if it appear that other-
wise he has been duly appointed. State v. Toomer, 7 Rich. 227. See Ver-
ner v. Seibels, 60 S. C, 576, 39 S. E. 275> holding officer's term commences
to run from date of commission.
CommisBlon duly ordered to be recorded is to be considered as recorded.
In the principal case it was held that when the recording of a commis-
sion had been duly ordered, the instrument was to be considered as re-
corded, although "the manual labor of inserting it in a book kept for that
purpose may not have been performed." The learned chief justice also
intimated that this rule is of more extended application than to commis-
sions; and holds good of "any instrument whatever" required to be re-
corded. The Supreme Court of Ohio has adopted and acted upon this
view. King v. Kenny, 4 Ohio, 83. In that case the question was whether
a certain public highway had been legally established. The statute pro-
vided that the proposed road should be viewed and surveyed, "and that
the survey and report of the viewers" be recorded, and from thenceforth
such road should be a public highway. Through the fault of the clerk of
the commission no such record had been made, but the court held that this
ministerial nonfeasance should not be allowed to render the whole proceed-
ing nugatory. The same court has also held immaterial a failure of a
town clerk to record a special permit granted by the town trustees and by
them ordered recorded. Ratcliff v. Teters, 27 Ohio St. 81. In still another
case it intimated, in accordance with this principle, that the failure of a
county clerk to file the power of deputy of a deputy sheriff would not
operate so as to invalidate the power. Lessee of Haines v. Lindsey, 4
Ohio, 90, 19 Am. Dec. 588. So, also, where the recording of a will has
been ordered by a probate judge, and every act performed save the actual
recording, the will is deemed in law as recorded. McClaskey v. Barr, 47
Fed. 170. While the Supreme Court of North Carolina, by a question-
able extension of the principle, has held that a deed of trust duly proved
but not registered within six months as required, owing to the death of
the raster, though registered upon the appointment of his successor
thereafter, was to be considered as duly registered. Moore v. Collins, 3
Dev. 140. This case, however, seems to lack the essential element upon
which the soundness of the principle rests. An instrument is considered
as recorded when it has been so ordered by a competent power, because
the issuance of the order by a superior power to an inferior ministerial
officer with no choice but to obey is the real fact which makes the record
binding at law. The foregoing is a case where the registering of the deed
was a duty imposed upon an individual for his own protection and is
plainly distinguishable; William Firth Co. v. South Carolina Loan etc.
Trust Co., 122 Fed. 577, holding mortgage covering cotton mill and machin-
ery therein valid as to machinery though recorded only in record for realtv
143 MARBURY v. MADISON. 1 Cr. 137-180
mortgages ; Holmes v. Cleveland C. etc. Co., 93 Fed. 108, holding where use
by a city of a street is by express l^slative authority it is presumed for
benefit of public.
The courtB have no authority to Inquire Into and control political matters
left by law to the executive discretion.
Approved in Bonbright v. Schoettler, 127 Fed. 324, holding void Penn-
sylvania fire-escape act of June 11, 1879, official certificate of approval,
properly issued, is conclusive evidence of compliance with act and protects
o-wTier of building from liability thereunder for either the penalty or
damages; Attorney General v. Renihan, 184 Mich. 282, 151 N. W. 326,
vacancies in Superior Court must be filled by Governor under constitutional
prcn-ision, not by municipal council as charter provides ; Atkinson v. Wood-
mansee, 68 Kan. 81, 90, 64 L. R. A. 825, 74 Pac. 644, 647, holding void
Gen. Stats. 1901, § 5125, permitting recovery of attorneys' fees as costs
in mechanics' liens .cases ; Territory v. Armijo, 14 N. M. 224, 89 Pac. 274,
executive power vested in Governor of New Mexico by organic act does
not include right to remove an officer elected in accordance with tenitorial
law. There remain a few cases in which the courts have considered Mar-
bury V. Madison as a helpful authority in the settlement of some of the
other manifold questions growing out of this peculiar feature of our gov-
ernment. They make it plain that the courts have adhered to the rule of
the leading case which disclaims all right to intermeddle in the political
or discretionary duties of the executive.' In re Kaine, 14 How. 119, 128,
14 L. Ed. 351, 355, Durand v. HoUis, 4 Blatchf. 454, Fed. Cas. 4186, State
V. Churchill, 48 Ark. 443, 3 S. W. 360 , Burch v. Hardwicke, 23 Gratt. 51,
60, Druecker v. Salomon, 21 Wis. 629, 94 Am. Dec. 577, Worthington v.
Scribner, 109 Mass. 487, 490, 12 Am. Dec. 739, Morton v. Green, 2 Neb.
455, Tennant's Case, 3 Neb. 409, 19 Am. Rep. 634, and see Slack v.
Jacob, 8 W. Va. 662 , Woods v. Sheldon, 9 S. D. 407, 410, 69 N. W. 607,
608. Accordingly, in an action of false imprisonment against a State Gov-
ernor for enforcing a draft of soldiers ordered by the President of the
United States, the court declined to consider the question whether the
executive was justified in calling out troops, holding that in such a mat-
ter the judgment and discretion of the executive was supreme. Druecker
V. Salomon, 21 Wis. 629, 94 Am. Dec. 577. Neither will a court of law,
at the suit of a municipal corporation court, stay an investigation insti-
tuted by the municipal executive into the conduct of the chief of police.
Burch v. Hardwicke, 23 Gratt. 60. An order of the executive through the
Secretary of the Navy for the bombardment of a certain port is a political
act; and an action for damages will not lie against the latter for the
destruction of the private property of a neutral in the bombarded town.
Durand v. Hollins, 4 Blatchf. 454, Fed. Cas. 4186. So, also, in arresting
and surrendering over an English fugitive from justice, a United States
commissioner would seem to be acting politically so that habeas corpus
will not lie to review the detention. In re Kaine, 14 How. 119, 128, 14
la. Ed. 351, 355. Again, a department of the executive, such as the treas-
juy, cannot be compelled to divulge the name of the informant who pro-
1 Cr. 137-180 NOTES ON U. S. REPORTS. 144
cured the prosecution of a charge for defrauding the revenue. The case
has been likened to that of official or cabinet secrets which the leading
case intimates are not the subject of judicial investigation. Worthington
V. Scribner, 109 Mass. 490, 12 Am. Rep. 739. And it has been held that a
public officer of the United States cannot be garnisheed as to moneys due
from the United States to a private individual. Averill v. Tucker, 2 Cr.
C. C. 546, Fed. Cas. 670.
A State Governor is acting politically in issuing a proclamation calling
for a convention of the legislature; and the act may not be called in
question in a court of law. Tennant's Case, 3 Neb. 429. Until the grant-
ing or refusal of a patent to land by the land department there is no
ground for judicial interference. Morton v. Green, 2 Neb. 441, 455. But
the question of eligibility to political office is a legal an^ not a political
question. State v. Gleason, 12 Fla. 260.
An early case tried before Chief Justice Cranch in the Circuit Court
for the District of Columbia is interesting as illustrating the extent to
which the theory of the immunity of the executive from judicial super-
vision was at one time sought to be carried. The case was an indictmient
for obtaining money by false pretenses, against the fourth auditor of the
United States, in which were alleged certain frauds perpetrated against
the government by that officer in the discharge of his duties. For the
defendant it was argued, among other things, that in deciding his guilt or
innocence it was necessary to inquire into the extent of his powers and
duties as fourth auditor; that no judicial tribunal had power to question
his official acts unless they violated the vested rights of some individual;
and that so long as they affected the public only they must be left to the
control of his superior executive officer. Marbury v. Madison was cited
in support of this position, which, it is scarcely necessary to say, was not
accepted as sound by the court. Clearly, the acts were not exclusively
official acts and such as involved no breach of a specific duty imposed by
law. United States v. Watkins, 3 Cr. C. C. 441, 589, Fed. Cas. 16,649.
From the proposition that in those matters within the discretion of the
executive department that discretion is supreme and unlimited, except
politically or so far as controlled by the dictates of conscience; and from
other similar holdings respecting the legislative and judicial departments,
the Federal Supreme Court in a later case drew a generalization wliich
has been quoted in an interesting line of cases. 'It is a universal prin-
ciple," declared the court, "that where power or jurisdiction is delegated
to any public officer or tribunal over a subject matter, and its exercise is
confided to his or their discretion, the acts so done are binding and valid
as to the subject matter; and individual rights will not be disturbed col-
laterally for anything done in the exercise of that discretion within the
authority and power conferred. The only questions which can arise . . .
are power in the officer and fraud in the party. All other questions are
settled by the decision made or the acts done by the tribunal or officer;
whether executive . . . legislative , . . judicial ... or special . . . unless
an appeal is provided for, or other revision by some appellate or super-
145 MARBURY v. MADISON. 1 Cr. 137-180
▼isoiy tiibunal is prescribe4 by law." United States v. Arredondo, 6 Pet.
729, 8 K Ed. 561.
It has been made authority in cases involving the question of the valid-
ity of a grant of land from the State or sovereign, for the proposition that
sach a grant made by an officer of the government, within the apparent
scope of his authority, was presumptively sufficient to pass the government
title in the premises. United States v. Arredondo, 6 Pet. 729, 8 L. Ed.
561 ; Ryder v. Innerarity, 4 Stew. & P. 30 ; McConnell v. Wilcox, 1 Scam.
351. This presumption, however, has been held to be insufficient as
i^ainst parties claiming a pre-existing adverse and paramount title in
themselves. Sabariego v. Maverick, 124 U. S. 282, 31 L. Ed. 439, 8
Sup. Ct. 472. If the grant is to be upon certain conditions, it is conclu-
sive upon the point that those conditions are performed. United States
V. California etc. Land Co., 148 U. S. 44, 37 L. Ed. 360, 13 Sup. Ct. 463.
So, also, it is. cited to the point that a court has the power to determine
its own jurisdiction, and that its judgments are not void but voidable.
Borden v. State, 11 Ark. 548, 54 Am. Dec. 217, 238. '
Power of courts to enforce ministerial duties of heads of departments.
Note, 52 L. B. A. (N. S.) 419, 420, 427.
It is not only the right but the duty of the judiciary to pass upon and
declare void statutes in conflict with the organic law, otherwise consUtutional
limitations would he vainly imposed. Ours is a government of laws, not or
men. The courts may not investigate matters left to the legislative discretion.
Approved in Muskrat v. United States, 219 U. S. 356, 357, 358, 55 L. Ed.
250, 251, 31 Sup. Ct. 250, act of Congress, authorizing suits by Cherokee
Indians with appeal to Federal Supreme Court to determine validity of
former acts of Congress before case had arisen, is invalid ; Downes v. Bid-
well, 182 U. S. 289, 45 L. Ed. 1107, 21 Sup. Gt. 787, holding Porto Rico not
part of United States within taxing clause of Constitution; Fairbank v.
United States, 181 U. S. 285, 45 L. Ed. 864, 21 Sup. Ct. 649, holding void
stamp tax on foreign bill of lading as tax on exports ; Kansas City Gas Co.
v. Kansas City, 198 Fed. 513, defendant enjoined from lev3dng penalties
upon gas company under municipal ordinance "impairing obligation of
contract" within Federal Constitution; Kansas Natural Gas Co. v. Has-
kell, 172 Fed. 557, statute of Oklahoma, prohibiting transportation or sell-
ing of natural gas outside State, void as attempt to interfere with inter-
state commerce; St. Louis etc. R. Co. v. Hadley, 168 Fed. 357, statutes
. establishing freight and passenger rates in Missouri is confiscatory and
unconstitutional; United States v. Delaware & H. Co., 164 Fed. 235, "com-
modities clause" of Interstate Commerce Act, interfering with vested
rights o'f railroads in coal lands in Pennsylvania, conflicts with fifth
amendment to Federal Constitution ; Southern Ry. Co. v. McNeill, 155 Fed.
783, 784, pending decision as to constitutionality of North Carolina stat-
ute. Federal court issues injunction to restrain enforcement of passenger
and freight rates established by State railroad commission; Hume v.
Laurel Hill Cemetery, 142 Fed. 563, holding void San Francisco ordinance
prohibiting burials within city limits ; Jew Ho v. Williamson, 103 Fed. 17,
I— 10
1 Cr. 137-180 NOTES ON U. S. REPORTS. 146
holding void a munieipal regulation establishing qaarantine against Chinescf
in district, but not against others; State v. Joseph, 175 Ala. 597, Ann.
Oas. 1914D, 248, 57 South. 948, whether bill constitutionally enacted and
contains all provisions enacted by Assembly must be determined by en-
rolled bill and journals, and cannot be impeached by memorandum of Gov-
ernor's secretary; Curran Bill Posting etc. Co. v. Denver, 47 Colo. 225,
27 L. R. A. (N. S.) 544, 107 Pac. 263, ordinance of city of Denver regu-
lating billboards unreasonably restricts use of private property and is not
valid exercise of police power of State; State v. Travelers' Ins. Co., 73
Conn. 260, 47 Atl. 300, upholding Gen. Stats., § 3916, taxing insurance
companies for stock held by nonresident ; Bernardin v. Seymour, 10 App.
D. C. 315, decisions of commissioner of patents in issuance of patents are
exercise of judicial not executive power, and statute giving Court of Ap-
peals power to review is valid ; State v. Holmes, 53 Fla. 229, 44 South. 180,
on mandamus to compel issuance of liquor license by county commission-
ers, question of constitutionality of statute may be determined, though it
does not affect commissioners personally; Ex parte Crane, 27 Idaho, 682,
151 Pac. 1009, act prohibiting manufacture or sale of intoxicating liquor
within prohibition district is reasonable exercise of police power; Haller
Sign Works v. Physical Culture Training School, 249 111. 441, 34 L. R. A.
(N. S.) 998, 94 N. E. 922, statute prohibiting erection of billboards within
five hundred feet of public park in city of one hundred thousand popula-
tion is an unreasonable attempt to limit the use of private property and
not within police power ; EUingham v. Dye, 178 Ind. 386, Ann. Gas. 19150,
200, 99 N. E. 19, act providing for vote of electors on proposed new con-
stitution and not complying with Constitution is invalid; State v. City of
Lawrence, 79 Kan. 246, 100 Pac. 489, act authorizing city of Lawrence to
issue bonds in aid of University is not repugnant to constitutional pro-
vision prohibiting conferring corporate powers by special act; Bosworth
V. State University, 166 Ky. 444, 179 S. W- 407, appropriation clause not
indicated ip title in act providing for chemical analysis of food is invalid ;
Ragland v. Anderson, 125 Ky. 155, 128 Am. St. Rep. 242, 100 S. W. 868,
act redistricting State into representative districts unequal in population
is void ; Painter v. Mattf eldt, 119 Md. 472, 87 Atl. 416, act to create good
roads commission, not showing by title that people were taxed in other
ways than by bonds, is void; Winslow Elevator & Machine Co. v. Hoff-
man, 107 Md. 636, 17 L. R. A. (N. S.) 1130, 69 Atl. 396, losses of rents ef
office building are not direct and natural result of breach of contract to
install an elevator, but are special damages; Daugherty v. Thomas, 174
Mich. 384, 386, Ann. Oas. 1915A, 1163, 45 L. R. A. (N. S.) 699, 140 N. W.
620, 621, statute making owner of motor vehicle liable for injury caused
by negligent operation by any person is not valid exercise of police power,
but invasion of property rights of owner; St. Louis Gunning Advertise-
ment Co. V. St. Louis, 235 Mo. 157, 137 S. W. 946, municipal ordinance
regulating billboards is not an unreasonable exercise of police pdwer ; State
V. Layton, 160 Mo. 489, 61 S. W. 174, holding act prohibiting sale of alum
baking powders within police power; Booth v. McGuinness, 78 N. J. L.
370, 75 Atl. 461, general law providing for regulation of municipal affairs
147 MARBURY v. MADISON. 1 Cr. 137-180
by commission not invalid as interference with local self-government; Tor-
rez V. County Comma's., 10 N. M. 689, 65 Pac. 181, holding chapter 34,
Laws 1899, void; Schieffelin v. Komfort, 212 N. Y. 630, L. R. A. 1915D,
485, 106 N. E. 678, taxpayer cannot test constitutionality of statute, pro-
viding for constitutional convention, in injunction suit against State offi-
cers to prevent election of delegates, where no interference with his rights
apart from those of general public are shown; Board of Education v.
Henderson, 126 N. C. 698, 36 S. E. 161, holding void Laws 1899, chapter
128, § 2, relative to actions against towns for penalties ; Mott v. Commis-
sioners, 126 N. C. 868, 36 S. E. 331, holding void Acts 1899, chapter 371,
infringing on criminal jurisdiction of Superior Courts; White v. Auditor,
126 N. C. 582, 583, 594, 36 S. E. 135, 139, holding mandamus lies to com-
pel auditor to issue warrant for oyi^ter inspector's salary; Wilson v. Jor-
dan, 124 N. C. 722, 33 S. E. 148, holding legislature cannot deprive officer
of his office while office still exists; State v. Miller, 87 Ohio St. 26, Ann.
Gas. 1913E, 761, 44 L. R. A. (N. S.) 712, 99 N. E. 1079, act provid-
ing for election of judicial offiTcers by separate ballot is valid exercise of
legislative power; Cincinnati v. Trustees of Hospital, 66 Ohio St. 452,
64 N. E. 424, holding act of April 29, 1902, regulating Commercial
Hospital of Cincinnati, is void as special legislation; Coyle v. Smith, 28
Okl. 172, 113 Pac. 965, ''irrevocable ordinance" of enabling act pro-
viding for location of capital is no part of fundamental law, but merely
exercise of l^slative power, and may be repealed by legislature;
Arie v. State, 23 Okl. 172, 1 Okl. Cr. 256, 673,^ 100 Pac. 25, oA
adoption of constitutional . provision as to prohibition/ prior grant
of liquor license was revoked ; Ex parte Crump, 10 Okl. Cr. 145, 135 Pac.
433, pardon granted by lieutenant-governor, in absence of Governor, is
valid act; Ellis v. Frazier, 38 Or. 464, 63 Pac. 642, holding void tax on
bicycles in certain counties as special legislation; Ex parte Flake, 67 Tex.
Cr. 222, 149 S. W. 149, act taxing storage of intoxicating or nonintoxi-
eating liquors in prohibition territory is valid exercise of police power
and not infringement of private property rights; 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 ; United States v. United States
Fidelity & Guaranty Co., 80 Vt. 95, 66 Atl. 813, amendatory act, provid-
ing remedy in Federal courts to person suing in name of United States on
contractor's bond, held not retrospective and did not preclude action in
State court; State v. Howell, 85 Wash. 293, 147 Pac. 1166, statute pro-
tecting special funds of cities of first class is emergency act under police
power, and not subject ;to referendum; State v. Meath, 84 Wash. 308,
147 Pac. 13, act changing membership of State board of land commission-
ers not an emergency act exempt from referendum; Herold v. McQueen,
71 W. Va. 45, 75 S. E. 314, act creating county high school and making
members of County Court member of board of directors with payment
per diem, not unconstitutional as increasing salary of members of court;
State V. Donald, 160 Wis. 139, 140, 151 N. W. 370, 371, while reforesta-
tion within police power and legitimate object of State expense, legisla-
ture cannot divert lands impressed within educational trust; In re Bolens,
1 Cr. 137-180 NOTES ON U. S. REPORTS. 148
148 Wis. 544, Ann. Oas. 191SA, 1147, L. R. A. 1915B, 569, 136 N. W. 165,
taxpayer, as relator of State, may enjoin State oflBcer from disbursing
public money in enforcement of income tax law violating Constitution;
Borgnis v. Falk Co., 147 Wis. 372, 376, 37 L. R. A. (N. S.) 488. 489, 133
N. W. 224, 226, 3 N. C. C. A. 696, 700, Workmen's Compensation Act
abolishing defenses of assumed risk and fellow-servant is not void as
against public policy ; State v. Frear, 142 Wis. 360, 20 Ann. Oas. 633, 125
N. W. 976, primary election law providing for referendum not unconstitu-
tional as delegation of power given by Constitution to legislature; Bon-
nett V. Vallier, 136 Wis. 203, 128 Am. St. Rep. 1061, 17 L. R. A. (N. S.)
486, 116 N. W. 888, injunction granted to prevent officers from interfer-
ing with construction of building under law unreasonably infringing pri-
vate property rights; State v. Redraon, 134 Was. 103, 107, 126 Am. St.
Rep. 1003, 15 Ann. Gas. 408, 14 L. R. A. (N. S.) 229, 114 N. W. 139, 141,
law giving occupant of lower berth of sleeping-car option to have upper
berth closed if unoccupied, unreasonable interference with property rights,
and not within police power; State v. Kreutzberg, 114 Wis. 533, 91 Am.
St. Rep. 936, 90 N. W. 1099, holding void act prohibiting discharge of
anion workmen; State v. Chittenden, 127 Wis. 519, 521, 107 N. W. 517,
518, construing dental act; dissenting opinion in Lottery Case, 188 U. S.
372, 47 L. Ed. 507, 23 Sup. Ct. 333, majority upholding 28 Stat. 963, pro-
hibiting lotteries; dissenting opinion in Dooley v. United States, 183 U. S.
173, 46 L. Ed. 187, 21 Sup. Ct. 762, majority upholding Foraker law, taxing
United States imports into Porto Rico; dissenting opinion in Downes v.
Bidwell, 182 U. S. 358, 359, 381, 45 L. Ed. 1134, 1142, 21 Sup. Ct. 814, 815,
823, majority holding Porto Rico not part of United States within taxing
clause of Constitution; dissenting .opinion in Whaley v. State, 168 Ala. 169,
30 L. R. A. (N. S.) 499, 52 South. 946, majority holding that act, authoriz-
ing street-car companies to make rules regulating transfers, and making
fraudulent or willful violations of rules unlawful, was valid; dissenting
opinion in State v. Moore, 76 Ark. ^06, 88 S. W. 884, majority upholding
State guard appropriation act of 1905 ; dissenting opinion in United States
v. O'Neal, 10 App. D. C. 248, majority holding that act of Congress, pro-
viding no appeal should lie from decision of justice of peace tried by jury,
was valid ; dissenting opinion in Admiral Realty Co. v. City of New York,
206 N. Y. 160, Ann. Oas. 1914A, 1054, 99 N. E. 257, majority holding con-
tract, between city and private corporation for joint operation of subways
and preferential payment to corporation, not infringement of constitutional
prohibition to give money in aid of corporation; dissenting opinion in
Citizens' Sav. Bank v. Greenburgh, 173 N. Y. 232, 65 N. E. 983, majority
upholding Laws 1892, chapter 493, relating to establishment of highways;
dissenting opinion in State v. Armour & Co., 27 N. D. 211, 212, 213, 145
N. W. 1046, 1047, majority holding regulations of weights, measures and
labels of foods sold within State was not unreasonable exercise of police
power or interference with interstate commerce; dissenting opinion in
Coyle V. Smith, 28 Okl. 182, 113 Pac. 969, majority holding that ** irrev-
ocable ordinance" of enabling act, determining temporary location of
capital, and providing for location of permanent capital by electors, was
149 MARBURY v. MADISON. 1 Cr.437-180
law which legislattlre could repeal;, dissenting opinion in Ex parte Town-
send, 64 Tex. Cr. 377, 378, 144 S. W. 643, act prohibiting occupation of
selling intoxicating liquors and requiring license for sale of nonintoxicating
malt liquors within p>olice power of State; dissenting opinion in State v.
Clausen, 85 Wash. 276, Ann. Gas. 1916B, 810, 148 Pac. 34, majqrity holding
that legislature had power of withholding referendum of State highway
appropriation act under State Constitution, and mandamus will issue com-
pelHni? auditor to pay claims; dissenting opinion in State v. Marcus, 160
Wis. 408, 152 N. W. 439, majority holding that constitutional amendment
l^^y adopted, though legislative proposal in final form not entered at
large on journals of both houses; dissenting opinion in In re Bolens, 148^
Wis. 532, Ann. Gas. 1918A, 1147, L. B. A. 1915B, 569, 134 N. W. 699,
majority holding taxpayer, as relator of State, may enjoin State officers
from enforcing income tax laws alleged unconstitutional; dissenting
opinion in State v. Daniels, 143 Wis. 657, 128 N. W. 567, majority holding
that statute, providing for appointment of nonresident commissioners to
reassess taxes not levied in compliance with law by local authorities, not
unconstitutional as contravention of local rights; dissenting opinion in
Riley v. Chicago etc. Ry. Co., 138 Wis. 234, 119 N. W. 317, majority holding
law, making common carrier liable for injury due to negligence of co-
employee to secure safety of public, valid ; dissenting opinion in Taylor etc.
Marshall y. Bukham, 178 U. S. 586, 44 L. Ed. 1203, 20 Sup. Ct. 1009,
arguendo.
Distinguished in Higgins v. Tax Assessors of Pawtucket, 27 R. I. 405,
63 Atl. 36, upholding practice act 1905, p. 4, § 12, giving Superior Cpurt
jurisdiction in cases of prerogative writs.
We find that the principal case has also been recognized as an authority
of considerable importance, respecting the relations of the judicial and
l^slative d«fartments, though an accurate delimitation of the scope of
legislative po^fers would be equally, if not more, difficult than in the case
of the exectrtfte. The principal case does not attempt that, and its cita-
tions do not, therefore, take us far into the many vexed problems which
are continually arising in this connection, v It is certain, however, that
the principal case has exerted a very marked influence in establishing the
equality of the judicial with the other departments, and in settling many
important points respecting the relations between the department which
declares what the law is and the department which declares what the law
is to be. It is difficult to carry one's self back to a time when the power
of the court to examine into the validity of a legislative appointment
because an exercise of political power was denied (State ex rel. v. Paul,
6 Stew. & P. 40, 51; overruled in State ex rel. v. Porter, 1 Ala. 688, 704) ,
and its power to question or annul legislation because in conflict with the
organic la\fr, controverted with zeal and argument by those opposed to the
exercise of so dangerous a function. But it is only by doing so that we
can estinlate the progress that has been made toward a complete adjust-
ment of the relations between the co-ordinate branches of the government,
and the place of the principal case in the development of this distinctive
feature of American law. In finally settling the principle that it is not
1 Cr. 137-180 NOTES ON U. S. REPORTS. ibo
only the right, but the duty of the judiciary to pass upon the constitu-
tionality of legislative enactments and declare them void if in conflict with
the fundamental law, the principal case performed a service which has
called forth exalted eulogies from later jurists.
It cahnot be claimed for the principal case, that it is the first case in
this country in which this point was involved and adjudicated in favor of
the authority of the judiciary. Judge Dillon, in his lectures on Laws and
Jurisprudence, has collected the early cases on this point, and finds Holmes
V. Walton, referred to in State v. Parkhurst, 4 Halst. (N. J.) 444, decided
by the Supreme Court of New Jersey, in 1780, to be the first case on the
« question. Other early cases are Conmion wealth v. Caton, 4 Call (Va.), 5
(1782) , "Case of the Judges," Id. 135 (1788) , Kamper v. Hawkins, 1 Va.
Cas. 20, Bowman v. Middleton, 1 Bay (S. C), 262, Trevett v. Weeden
(decided by the Superior Court of Rhode Island in 1786; see Cooley's
Const. Lim., 6th ed., p. 193, n.) , Bayard v. Singleton, 1 Mart. (N. C.) 48,
Ogden V. Witherspoon, 2 Hay w. 227 , see, also, In re Davis, 58 Kan. 385, 49
Pac. 165.
All these cases, however, seem important, historically rather than legally.
There is nothing to indicate that they, or any of them, were considered
as settling the question, while it is undeniable that the courts have always
accorded this distinction to the principal case. "Since the case of Mar-
bury V. Madison, 1 Cr. 137," said the Supreme Court of Missouri, in 1822,
"this question has been generally looked upon as settled." Baily v. Gentry,
1 Mo. 167, 13 Am. Dec. 485. The Supreme Court of New Jersey has ob-
served: "The question is elaborately discussed in the Federalist, and it
was' not set at rest until it received the lucid exiK>sition of the greaf mind
of Chief Justice Marshall, in Marbury v. Madison." Moore v. State, 43
N. J. L. 244, 39 Am. Bep. 668 ; and see Van Horn v. State, 46 Neb. 82, 64
N. W. 372. A decision contemporary with Marbury v. Madison, and hold*
ing that the courts have power to declare void an unconstitutional statute,
was Emerick v. Harris, decided by the Supreme Court of Pennsylvania, in
1808. Yeates, J., in his opinion remarked that it had been drawn up
previous to the publication of the decision by the Federal Supreme Court.
1 Binn. 423.
While there would seem to be no case in the reports holding to the con-
trary of Marbury v. Madison, it would be a mistake to suppose that all
argument on the question was immediately silenced by that decision. As
late as 1825, Judge (afterward Chief Justice) Gibson of Pennsylvania
characterized the reasoning and opinion of Chief Justice Marshall as
''inconclusive"; and while conceding the right to declare void laws in con-
flict with the Federal Constitution, he was for denying the right to avoid
Icofislation, in conflict with the Constitution of a State. Eakin v. Raub,
12 Serg. & R. 346.
The principle is so clearly and so firmly settled, and is now so elementary
in our law, that it is entirely unnecessary to prolong this discussion. Cer-
tainly no court to-day can feel it necessary to append authority to so
axiomatic a statement; and it is noteworthy that the Supreme Court cites
it to this point but once (Pollock v. F. L. & T. Co., 157 U. S. 554, 39 L. EcL
151 MARBURY v. MADISON. 1 Cr. 137-180
810» 15 Sup. Ct. 679) in its subsequent decisions annulling laws, either
State or Federal. Bonaparte v. Camden & A. R. R., Bald. 219, Fed. Cas.
1617; In re Bogart, 2 Sawy. 406, Fed. Cas. 1596; Dale v. Governor, 3
Stew. 418; Demott v. Swaim, 5 Stew. & P. 308; Fulmore v. Brady, 44 Ala.
223 ; Noble v. Cullom, 44 Ala. 560 ; Ex parte Selma etc. R. Co., 45 Ala. 728,
6 Am. Bep. 727; Rison v. Farr, 24 Ark. 168, 87 Am. Dec. 56; Caultield v.
Hudson, 3 Cal. 390; Nongues ▼. Douglass, 7 Cal. 80; Dawson v. Shaver, 1
Blackf. 207; Beebe v. State, 6 Ind. 508; Seymour ¥. State, 51 Ala. 53;
Robinson v. Schenck, 102 Ind. 319, 1 N. E. 705; Reed v. Wright, 2 G.
Greene, 30; Koehler v. Hill, 60 Iowa, 656, 15 N. W. 635; Crescent City
etc. Co. V. New Orleans etc. Co., 27 La. Ann. 143, 146; Louisiana Ice Co.
V. State Nat. Bank, 32 La. Ann. 597, 598 ; Anderson v. Baker, 23 Md. 563 ;
Baily v. Gentry, 1 Mo. 167, 13 Am. Dec. 485; State v. Fray, 4 Mo. 178;
Wilcox V. Saunders, 4 Neb. 579 ; Merrill v. Sherburne, 1 N. H. 202, 8 Am.
Dec 55; Moore v. State, 43 N. J. L. 244, 39 Am. Bep. 558; Griffith v.
Commissioners etc., 20 Ohio App. 5; Cincinnati etc. R. R. v. Commis-
sioners, 1 Ohio St. 82; Eakin v. Raub^ 12 Serg. & R. 330; Lonas v. State,
3 Heisk. 301; Lewis v. Woodfolk, 2 Baxt. 47; Stockton v. Montgomery,
Dall. (Tex.) 480, 485; Ex parte Rodriguez, 39 Tex. 757; Wise v. Bigger,
79 Va. 269, 273 ; State v. Auditor, 47 La. Ann. 1694, 18 South. 751 ; In re
Davis, 58 Kan. 385, 49 Pac. 165 ; In re Klein, 14 Fed. Cas. 719 ; Magill y.
Brown, 16 Fed. Cas. 419.
The principal case is also cited in several cases as one of the three in-
stances in which acts of Congress have been declared void by the Supreme
Court, the others being Dred Scott v. Sandford, 19 How. 393, 15 L. Ed.
€91, and Ex parte Garland, 4 Wall. 333, 18 L. Ed. 866; United States v.
Rhodes, 1 Abb. (U. S.) 28, 52, Fed. Cas. 16,151; Seymour v. State, 51 Ala.
63; In re Bogart, 2 Sawy. 406, Fed. Cas. 1596. Before the court will
declare a statute void, it must clearly appear that it is incompatible with
the oiganic law. Simpson v. Savings Bank, 56 N. H. 469, 2i2 Am. Bep.
493.
Aside from the foregoing, the citations afford us further illustrations
of the extent to which the judiciary deem it their right to go in an exam-
ination of acts of the legislative department. These citations are based
in part upon specific expressions in the opinion in the leading case, but
many of them rather reflect the general tone of firmness which character-
izes the principal case in its assertion of the rights of the judiciary. Thus
we find that courts have quoted the words: "To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if
these limits may at any time be passed by those intended to be restrained V
And they have held that although the legislature may have expressly, de-
clared that a certain statute is passed for the benefit of the public health
and morals, this does not avail to preclude an inquiry as to whether it be
such in fact. Mugler v. Kansas, 123 U. S. 661, 31 L. Ed. 210, 8 Sup. Ct.
297; McCullough v. Brown, 41 S. C. 243, 19 S. E. 471. The fact that a
statute is intended as an exercise of the police power does hot preclude
a judicial inquiry as to whether it be a valid exercise of that power.
McCullough V. Brown, 41 S. C. 243, 19 S. E. 471 ; In re Jacobs, 98 N. Y.
1 Cr. 137-180 NOTES ON U. S. REPORTS. 162
112, 50 Am. Bep. 645. So, also, a statute making certain acta a criminal
misdemeanor, is not therefore conclusively a valid exercise of the police
power. Ah Lim v. Territory, 1 Wash. 178, 24 Pac. 594. In other words,
it is immaterial what may have been the opinion of the legislature as to
the extent of its powers under the Constitution, so long as it does, in fact,
exceed them. Maize v. State, 4 Ind. 346. On the other hand, the judiciary
has no power to question legislation on any other than constitutional
grounds. Ex parte Screws, 49 Ala. 66.
There are, also, other portions of the opinion whose general tenor is
the same. In the terse saying that ours is a "government of laws and not
of men," Chief Justice Marshall epitomizes what is now very firmly estab-
lished as the attitude of the courts upon the difficult questions of con-
stitutional law. In the leading case this assertion was followed by a clear
statement of the proposition that executive officers are not beyond the
control of the courts of law, simply because part of a co-ordinate depart-
ment of the government. "The truth is," says Mr. Justice Field, in an
early California case, "no officer, however high, is above the law." McCau-
ley V. Brooks, 16 Cal. 41. The citations above, especially those upon
the subject of mandamus, and the right to declare void unconstitutional
statutes, show how steadily the courts have adhered to 'this principle.
Other cases also quote these "impressive and weighty words" of the great
chief justice. Poindexter v. Greenhow, 114 U. S. 298, 29 L. Ed. 195, 6
Sup. Ct. 918 ; Louisiana v. Jumel, 107 U. S. 743, 27 L. Ed. 459, 2 Sup. Ct.
154; Standeford v. Wingate, 2 Duv. (Ky.) 457; People ex rel. v. Governor,
29 Mich. 327, 18 Am. Rep. 95.
While the principal case affirmed the power of the courts in certain of
its relations with the legislative department, on the other hand it dis-
claimed any pretensions to control any of those acts in which the discre-
tion and power of the legislature was exclusive. We have seen above, that
the court recognized certain executive acts as discretionary, or political
in character, and others as properly reviewable in the courts, and that sub-
sequent cases have followed this doctrine in their rulings. The citations
also disclose a few cases in which similar questions have arisen, respect-
ing legislative acts which were claimed to be beyond the control of the
courts. Here, also, we may note that the influence of the principal case
has been to encourage a vigorous assertion of judicial power. In an early
Alabama case the court decided that it had no power to review a legis-
lative appointment of a judicial officer, and quoted Chief Justice Mar-
shall's words in the leading case, disclaiming all desire to interfere in
political questions. State ex rel. v. Paul, 5 Stew. & P. 51. But this deci-
sion was speedily overturned and the contraiy doctrine established, the
principal case being again cited, this time as illustrating the extent and
variety of the questions into which the courts may inquire. State ex rel.
V. Porter, 1 Ala. 704. This latter citation more accurately indicates the
general tendency noticeable in the other citations on this point. Thus the
dissenting judges in an Indiana case of more recent date cite Marbury v.
Madison to the point that the validity of an appointment is essentially a
judicial question, although it was then held that the court could not inter-
163 MABBUBY v. MADISON. 1 Cr. 137-180
fere to try the title to the office of lieutenant-govemory that power hav-
ing been conferred by the Constitution on the general assembly. Robert-
son V. State, 109 Ind. 90, 10 N. E. 582. Again, it has been vigorously
maintained that legislative enactments apportioning the State into dis-
tricts for electoral purposes were not subject to review, respecting the pro-
priety of these apportionments. But these acts have in several instances
been declared inconsistent with some constitutional prevision; and in two
cases the analogy of Marbury v. Madison has been relied upon in assert-
ing that a judicial question was involved in such legislation. Parker v.
State ex rel., 133 Ind. 185, 32 N. E. 838 ; State ex rel. v. Cunningham, 83
Wis. 136, 85 Am. St. Bep. 44, 53 N. W. 53. So, also, in deciding which of
two contestants is the duly elected Speaker of a legislative assembly, the
eourt is dealing with a proper judicial question, although it be necessary
in so doing to pass upon the credentials of the members of the house. In
re Gunn, 50 Kan. 265, 32 Pac. 967.
It remains to note under this head that in the leading case attention is
called to the attempt of Congress to impose certain duties as pension com-
missioners on *the Federal judges, and the refusal of the judges so to act.
The principal case is cited to this point in a Dakota case, which decided
that the only questions which might be brought before the Supreme Court
upon certiorari to a county board of commissioners were judicial and not
political or executive questions. Champion v. Commissioners, 5 Dak. Ter.
429, 41 N. W. 742 ; Territory v. Cox, 6 Dak. Ter. 505.
Unconstitutionality of statute as defense against mandamus to compel
enforcement. Note, 47 L. B. A. 512.
Miscellaneous. A few citations do not belong under* any of the fore-
going heads, and serve little more than to illustrate the great number of
I)oints to which the leading case has been cited. Three of them, decide^
in the Supreme Court of Indiana, "follow the precedent set by tHe Supreme
Court of the United States in Marbury v. Madison," in discussinp: the
case at bar on its merits, although it was possible to dispense with it
temporarily upon a technicality. Beal v. Ray, 17 Ind. 559; State ex rel.
.V. Allen, 21 Ind. 516, 520, 83 Am. Dec. 367, 369; Robertson v. State, 109
Ind. 90, 99, 10 N. E. 582, 592. In several others the citation occurs in a
quotation from Cohens v. Virginia on the subject of dictum, where the
court was making a similar effort to get away from a questionable doc-
trine. Leisy v. Hardin, 135 U. S. 135, 84 L. Ed. 141, 10 Sup. Ct. 693;
State ex rel. v. Doyle, 40 Wis. 190, 22 Am. Rep. 695 ; Ex parte Young Ah
Gow, 73 Cal. 449, 15 Pac. 81; Cooper v. Freeman L. Co., 61 Ark. 44, 32
S. W. 494 ; Carroll v. Carroll, 16 How. 287, 14 L. Ed. 941 ; Matz v. Chicago
& A. R. R. Co., 85 Fed. 183. Two others, decided in the Supreme Court
of Louisiana, cite the leading case to the point that where a right is clearly
established and no remedy at law, one was to be found in equity; Crescent
City etc. Co. v. New Orleans etc. Co., 27 La. Ann. 143, 146; State ex rel.
V. Dubuclet, 28 La. Ann, 708. Still others cite it to the point that the
courts are bound to take judicial notice of the statutes, enacted by the
legislative department. State v. Coosaw Min. Co., 45 Fed. 809; Turner's
Adm. V. Patton, 49 Ala. 411.
1 Cr. 181-194 NOTES ON U. S. REPORTS. 154
The remaining citations all differ one from another. One is that that'
c6nstruction of a Constitution is to be favored which makes all parts
operative. Ex parte Lusk, 82 Ala. 525, 2 South. 144. Another that the
granting of divorces by parliament, in England is an exercise of a judi-
cial power. State v. Fry, 4 Mo. 144. A third, that in cases arising under
Federal law, the State courts cannot allow a defense which ^e Federal
courts have not allowed. Hall v. Hall, 43 Ala. 503, 94 Am. Dec. 713, 2
South. 144. The Supreme Court of Massachusetts makes Marbury v.
Madison authority for the statement that the act of the legislature sub-
stituting a bridge franchise for the ferry franchise of Harvard College
was, undoubtedly, a taking of private property, but that compensation
has been made and its adequacy has not been questioned. Charles River
Bridge v. Warren Bridge, 7 Pick. 452. It is also cited to the point that
the Federal Constitution had not been lavish in endowing even the Federal
court with jurisdiction in national matters, in holding that a State court
had no jurisdiction to try the title to the office of director of a national
bank. State ex rel. v. Curtis, 35 Conn. 382, 95 Am. Dec. 268. In declar-
ing void a portion of the judiciary act of 1789, the Supreme Court of
Virginia remarked that the Federal court hadjtself found the act invalid
in another respect. Hunter v. Martin, 4 Munf. 28. Another citation of
Marbury v. Madisoii is appended to the statement that upon the approval
of an act of Congress by the president, it becomes law. American etc. Co.
V. Glens Falls etc. Co., 4 Fish. Pat. 561, 566, Fed. Cas. 321a. Another to
the statement that when the powers of one department are granted to
another, such grant must be strictly construed. Robertson v. State, 109
Ind. 94, 10 N. E. 589. In an early New York case, it is cited to the point
that a public officer is not personally liable for public debts incurred by
him officially. Osborne v. Kerr, 12 Wend. 180. Marburv- v. Madison is
ipcluded in a numerous list of authorities cited in a Federal case to sus-
tain the proposition that a witness will not be compelled to answer a ques-
tion tending to disgrace him. United States v. White, 5 Cr. C. C. 459, Fed.
Cas. 16,679. And finally the Supreme Court of Georgia cites it in declar-
ing that the laws of the State were made up as follows and in the follow-
ing order: (1) Constitution of the United States, (2) treaties, (3) acts of.
Congress, (4) State Constitution, (5) State statutes, (6) common law of
England. Flint River etc. Co. v. Foster, 5 Ga. 205, 48 Am. Dec. 257, and
in Averill v. Tucker, 2 Cr. C. C. 545, Fed. Cas. 670, on question of liability
of public agent. Lockhard v. Asher Lumber Co., 123 Fed. 501, Southern
Ry. Co. V. St. Clair Co., 124 Ala. 504. 27 South. 29, Barber etc. Co. v.
French, 158 Mo. 639, 540, 58 S. W. 936, Brown v. Chicago etc. R. Co., 102
Wis. 154, 78 N. W, 772, Griffin v. Woolford, 100 Va. 477, 41 S. E. 950, as
to dicta.
1 Cr. 181-194, 2 L. Ed. 74, OLABK v. YOXTNO.
The giving of note for antecedent debt is oondltlonal payment merely.
Approved in Dille v. White, 132 Iowa, 334, 347, 10 L. R. A. (N. S.) 510,
109 N. W. 912, 916, giving draft or cashier's check by insolvent bank in
lieu of money borrowed does not constitute payment; Patapsco Ins. Co. v.
155 CLARK V. YOUNG. 1 Cr. 181-194
Smith, 6 Ear. & J. 170, 14 Am. Dec. 269, Griffith v. Grogan, 12 Cal. 322,
Merrick v. Bowry, 4 Ohio St. 66, Wade v. Staunton, 5 How. (Miss.) 635,
Knox V. Gerhauser, 3 Mont. 278, all following rule; Wright v. First etc.
€k>., 1 N. H. 282, 8 Am. Dec. 69, remarking farther that if creditor trans-
fers note it becomes absolute payment; Lover v. Bessenger, 9 Baxt. 396,
holding note not payment unless such was intended; Austin v. Curtis, 31
Vt. 73, holding indorser on overdue note not discharged by taking new
note as collateral ; dissenting opinion in Winship v. Bank of United States,
5 Pet. 568, 8 L. Ed. 230, arguendo.
Distinguished in Harris v. Johnston, 3 Cr. 319, 2 L. Ed. 453, holding
that where note is negotiated by creditor, this extinguishes original debt ;
Roach V. HuUings, 16 Pet. 326, 10 L. Ed. 981, as inapplicable to case re-
specting presumption of payment from nonproduction of note; The Betsy
6 Rhoda, 2 Ware (Davies), 115, Fed. Cas. 1366, noting that Maine rule
makes such note prima facie pajrment; Smith v. Bettger, 68 Ind. 258, 34
Am. Bep. 258, remarking conflict among authorities and holding that
Indiana rale is contra.
Payment by commercial paper. Note, 85 L. B. A. (N. S.) 18.
Necessity for diligence where note is given ae conditional payment of
aatecedeat delrt.
Approved in Russell v. Hester, 10 Ala. 536, failure of creditor to pre-
serve liability of indorser on such note made him liable in damages to
debtor for full amount of note; Weston v. Reading, 5 Conn. 270, creditor
liable for loss from delay in enforcing such note; Hanna v. Pegg, 1 Blackf.
184, Hoffman v. Johnson, 1 Bland Ch. 107; Watkins v. Wopthington,' 2
Bland Ch. 541 , Cochran v. Wheeler, 7 N. H. 205, 26 Am. Dec. 784 , Tobey
V. Barber, 5 Johns. 73, Whitin v. Paul. 13 R. I. 44, Ringgold v. Newkirk,
3 Ark. 109 , Pope v. Nance, 1 Stew. 370, 18 Am. Dec. 63, discussing rationale
of rule; Trotter v. Crockett, 2 Port. 409, Chilton v. Comstock, 4 Ala. 59,
and Cocke v. Chaney, 14 Ala. 66, all discussing rule and duties of cred-
itor respecting note in order to preserve the liability of the original debt :
Kephart v. Butcher, 17 Iowa, 24fl, holding that true test is whether in
respect to note creditor has been guilty of any omissions actually injuring
debtor; Watkins v. Worthington, 2 Bland Ch. 527, arguendo.
Distinguished in Stocking v. Conway, 1 Port. 262, holding that even
where maker of note is insolvent, demand and every effort to collect must
be made.
Judgment in favor of defendant Indorser on technical grounds not bar to
flolt againet same defendant on original contract for which note given.
Approved in Davenport v. Chicago etc. R. R., 38 Iowa, 640, holding judg-
ment in suit for one yearns taxes not a bar to similar suit for taxes of an-
other ; Embden v. Lishemess, 89 Me. 579, 66 Am. St. Bep. 444, 36 Atl. 1102,
judgment to be a bar must have been on same subject matter and on the
merits, and holding judgment in one tax suit not on merits and so not a
bar to second.
Release of indorser of note by failure to enforce liability of maker.
Note, 18 L. B. A. (N. S.) 657.
I Cr. 194^239 . NOTES ON U. S. REPORTS. 156
Surrender of negotiable paper as condition to recovery on or^nal
obligation. Note, 20 Ann. Oas. 857.
1 Or. 194-211, 2 li. Ed. 79, WILSON v. I.ENOZ
Declaration in debt slLonld state amount with certainty.
Followed and applied under similar Kentucky statute in similar actions.
Johnson v. Bank^ 6 T. B. Mon. 120 ; Pendleton v. Bank, 2 J. J. Marsh. 149.
Cited in Musson v. Lake, 4 How. 282, 11 L. Ed. 975, and Dunbar v. Breese,
1 Pinn. Ill, but not in point; Dallyn v. Brady, 205 Fed. 431, in action
on bill of exchange^ protest fees part of debt so as to give Federal court
jurisdiction.
1 Or. 212-214, 2 L. Ed. 85, OX.ABKE V. BAZADONE.
Writ of error fronk Snpreme Court to general court of Northwest Territory
not authorized by act of Oongrefis.
Cited in dissenting opinion in United States v. Circuit Judges, 3 Wall.
677, 18 L. Ed. 113, arguing against the holding of majority that appeal lay
from Circuit Court in certain case, although not specially authorized by
Congress; dissenting opinion in Tennessee v, Davis, 100 U. S. 290, 25
L. Ed. 659, and Warner v. Steamer Uncle Sam, 9 Cal. 736, declaring that
appellate jurisdiction of Supreme Court is restricted to cases authorized
by Congress; United States v. New Bedford Bridge, 1 Wood. & M. 435,
Fed. Cas. 15,867, declaring that Congress and the Constitution must both
unite to give Federal courts jurisdiction ; Dismukes v. Stokes, 41 Miss. 435,
dismissing ^appeal not authorized by statute; Robinson v. BaiUieul, 2 Tex.
161, holding no appeal from interlocutory judgment until authorized by
legislature; Yarbrough v. State, 2 Tex. 527, holding no appeal lies from
order refusing bail; dissenting opinion in Curless v. Watson, 180 Ind. 129,
102 N. E. 513, majority holding void repeal of act of 1901 by act of 1913,
cutting off right of review in Supreme Court of certain cases decided in
appellate court; dissenting opinion in Ex parte France, 176 Ind. 127, 128,
95 N. E. 535, majority holding constitutionality of acts of 1911, chapter
117, defining jurisdiction of Supreme and Appellate Courts may be raised
tm petition .of clerk of Supreme Court for directions as to his duty.
Distinguished in Curless v. Watson, 180 Ind. 90, 94, 102 N. E. 499, 500,
holding void act cutting off right of review in Supreme Court of decisions
of Appellate court.
1 Or. 214-239, 2 L. Ed. 86, HOOE v. QROVEBMAN.
Letting of tonnage of a vessel does not make hirer the owner pro hac vice.
In the following cases it is held that a charter-party is to be construed
only as a contract of affreightment, and the charterer is not owner for the
voyage : Marcardier v. Chesapeake Ins. Co., 8 Cr. 50, 3 L. Ed. 484, holding,
therefore, that the master who was the owner could not have committed
barratry ; The Aberf oyle. Abb. Adm. 251, Fed. Cas. 16 ; Donahoe v. Kettell,
1 Cliff. 138, Fed. Cas. 3980; Kleine v. Catara, 2 Gall. 76, Fed. Cas. 7869:
Eames v. Cavaroc, Newb. 530, Fed. Cas. 4238; The Volunteer, 1 Sumn.
157 NOTES ON U. S. REPORTS. 1 Cr. 239-259
56S, Fed. Gas. 16,991; The Nathaniel Hooper, 3 Snmn. 577, Fed. Cas.
10,032; Palmer v. Gracie, 4 Wash. C. C'. 119, 122, Fed. Cas. 10,692; The
L. L. Lamb, 31 Fed. 32 ; Swift v. Tatner, 89 Ga. 668, 32 Am. St. Rep. 107,
15 S. E. 844; Slark v. Broom, 7 La. Ann. 341; State v. Baltimore Co., 13
Md. 190 ; Clarkson v. Edes, 4 Cow. 478, 480 ; Hagar v. Clark, 78 N. Y. 51,
overruling s. e., 12 Hun, 529, Schr. Arglye v. Worthington, 17 Ohio, 465;
Bramble v. Cuhner, 78 Fed. 502, 42 U. S. App. 303. In United States v.
Shea, 152 U. S. 187, 38 L. Ed. 406, 14 Sup. Ct. 521, a charter-party is held
to operate as a demise of the vessel. But see Richardson v. Winsor, 3
Cliff. 399, Fed. Cas. 11,795, remarking that courts incline to regard such
a contract as not a demise of the ship. Cited in Thwing v. Great Western
Ins. Co., 103 Mass. 405, 4 Am. Rep. 671, holding that charter of the whole
tonnage of a ship transfers only the cargo space; New Orleans-Belize etc.
S. S. Co. V. United States, 239 U. S. 206, 60 L. Ed. 280, 36 Sup. Ct. 78,
holding owner and not charterer liable for injuries to vessel during charter,
due to marine risks and for demurrage thereafter during period of repair.
1 Cr. 239-252, 2 Ik Ed. 94, WOOD v. OWINOS.
Wlien deed complete and necessity for recording.
Cited in De Lane v. Moore, 14 How. 266, 14 L. Ed. 265, and Moore v.
Thomas, 1 Overt. 203, applying principle in holding unrecorded deed bind-
ing between the parties; as also in Salmon v. Clagett, 3 Bland Ch. 172,
and Taylor v. Holter, 1 Mont. 711, the latter holding further that a defec-
tive acknowledgment does not destroy the deed as between the parties;
Hutchins v. Taylor, 12 Fed. Cas. 1081, and Clagett v. Salmon, 5 Gill & J*
325y both arguendo.
1 Cr. 252-259, 2 L. Ed. 98, UNITED STATES V. SIBOCS.
This case is an instance of the exercise of apx)ellate jurisdiction by the
Supipeme Court in a criminal case; but the court later denied its right
to this jurisdiction, declining to be bound by this precedent. United
States v. Moore, 3 Cr. 172, 2 L. Ed. 401. See dissenting opinion in Ex
parte Bollman, 4 Cr. 104, 2 L. Ed. 564; United States v. Sanges, 144 U. S.
319, 321, 36 L. Ed. 449, 450, 12 Sup. Ct. 612, 613, reviewing the question
of the Supreme Court's appellate jurisdiction, Darden v. Lines, 2 Fla.
580, approves the course of the Supreme Court in declining to be bound by
this case. Commonwealth v. Cummings, 3 Cush. 218, 50 Am. Dec. 737, cites
the case in holding that the State may not maintain writ of error in crim-
inal cases; dissenting opinion in Ex parte Crane, 5 Pet. 203, 8 L. Ed. 97,
arguing that Supreme Court may not issue mandamus; State v. Thayer,
158 Mo. 50, 58 S. W. 13, as an instance of case in which Supreme Court
took appellate jurisdiction of criminal case.
Distinguished in New v. Oklahoma, 195 U. S. 256, 49 L. Ed. 184, 25
Sup. Ct, 68, Supreme Court cannot review judgment of Oklahoma Supreme
Court in capital cases.
State's right to appeal ifi criminal case. Note, 19 L. R. A. 844.
1 Cr. 259-282 NOTES ON U. S. REPORTS. , 168
Act of 1801, reepectlng DlBtrtct of OolmnbU, gives no new remedy for
recovery of penalties, but leaves that prescribed by State law in force.
The mle is applied in the following cases respecting indictments in the
District, dismissing them as not according to the State statute: United
States V. Ellis, 1 Cr. C. C. 126, Fed. Cas. 16,046 ; United States v. Pickering,
2 Cr. C. C. 117, Fed. Cas. 16,042 ; United States v. Rounsavel, 2 Cr. C. C.
134, Fed. Cas. 16,199. Cited in United States v. Evans, 4 Cr. C. C. 106,
Fed. Cas. 15,066, holding that on conviction under gaming indictment,
judgment for statutory penalty may be entered; United States v. Laescki,
29 Fed. 700, holding indictment for counterfeiting improper and that
informer must sue for penalty; United States v. Abbott, 24 Fed. Cas. 744,
and United States v. Tillotson, 28 Fed. Cas. 180, holding that a prescribec^
statutory remedy cannot be varied from; United States v. The C. B.
Church, 1 Woods, 277, Fed. Cas. 14,762, arguendo.
Laws of Maryland and Virginia were left in force in respective portions
of District of Oolumbia ceded by those States.
Cited in United States v. Eliason, 16 Pet. 301, 10 L. Ed. 972, following
rule; dissenting opinion in Slack v. Perrine, 9 App. D. C. 169, majority
holding that laws of Maryland respecting custody and control of infant
children not applicable where question has been determined by court of
New Jersey having jurisdiction of subject matter and parties.
Extent of adoption of common law. Note, Ann. Oas. 1913E, 1241.
Miscellaneous. Cited In re Buell, 3 Dill. 118, Fed. Cas. 2102, holding
libel in district an offense against United States; State v. Cummings, 33
Conn. 264, 89 Am. Dec. 209, on point that common law is in force in dis-
trict.
1 Or. 259-282, 2 Ii. Ed. 101, FEITWICK v. SEABS.
Bight of admlnlstratoTB appointed in Maryland before District of Colum-
bia ceded to sae in District without first obtaining letters tbereln.
Approved in Barrielle v. Bettman, 199 Fed. 844, in suit on claim due
estate of deceased citizen of France from citizen of Ohio, laws of Ohio
determine right of decedent's heirs to sue; Turner v. Campbell, 124 Mo.
App. 138, 101 S. W. 121, ancillary letters must be taken out in this State
to collect debt from person residing therein ; Vaughn v. Northup, 15 Pet. 6,
10 L. Ed. 641, Noonan v. Bradley, 9 Wall. 400, 19 L. Ed. 759, upon point
that foreign administrator or executor may not sue in the domestic court
ivithout first obtaining letters ; Trecothick v. Austin, 4 Mason, 32, Fed. Cas.
14,164, doubting whether English administration authorized suit in the
colonies before the revolution; Embry v. Miller, 1 A. K. Marsh. 302, 10
Am. Dec. 735, Lusk v. Kimball, 87 Fed. 547, holding suit so instituted
a mere nullity which cannot be cured by subsequently obtaining letters and
amending pleadings; Le Cesne v. Cottin, 2 Mart. (N. S.) 486, arguing
against the right of foreigner to act as beneficiary heir in Louisiana.
As authority for the proposition that executors and administrators have
no authority outside the State where they are appointed : Leavens v. Butler,
159 THOMPSON v. JAMESON. 1 Cr. 282-290
8 Port. 401 ; St. James Church v. Walker, 1 Del. Ch. 293 ; Davis v. Smith,
5 Ga. 296, 48 Am. Dec. 295; Southwestern R. Co. v. Paulk, 24 Ga. 371;
Naylor v. Moody, 2 Blackf. 248; Lucas v. Tucker, 17 Ind. 44; Moore v.
Tanner, 6 T. B. Mon. 46, 17 Am. Dec. 89; Haven v. Foster, 9 Pick. 134,
19 Am. Dec. 862; In re Stockman, 71 Mich. 193, 38 N. W. 881; Winter v.
Winter, Walk. 212; Sabin v. Oilman, 1 N. H. 193; Taylor v. Barron, 36
N. H. 495 ; Pelletreau V. Rathbone, 1 N. J. Eq. 333 ; Haight v. Executors, 15
N. J. L. 185; Morrell v. Dickey, 1 Johns. Ch. 156; Campbell v. Tousey,
7 Cow. 68; Leake v. Gilchrist, 2 Dev. 81; Plummer v. Brandon, 5 Ired. Eq.
194; Vaughn v. Barrett, 5 Vt. 336; 26 Am. Dec. 807; Crumlish v. Shenan-
doah R. Co., 40 W. Va. 650, 22 S. E. 99. Melius v. Thompson, 1 CliflF. 128,
131, Fed. Cas. 9405, holding that an executor appointed in California can-
not be substituted for the decedent in an equity suit in Massachusetts
abated by decedent's death; Eels v. Holder, 2 McCrary, 622, 12 Fed. 669,
holding that under Kansas statutes mortgage on Kansas lands, made by
Kansas mortgagor to Ohio mortgagee, is assets in hands of mortgagee's
administrator in Ohio ; Greer v. Ferguson, 56 Ark. 330, 19 S. W. 967, hold-
ing that foreign executor appearing and defending suit against decedent
does not confer jurisdiction, nor do^s statute authorizing foreign executors
to sue include right to be sued; Louisville R. Co. v. Brantley, 96 Ky. 304,
49 Am. St. Bep. 296, 28 S. W. 478, holding that statute authorizing foreign
administrators to sue for accounts due intestates does not allow action
by Indiana administrator to recover damages for tort causing death of his
intestate.
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; Glassell v. Wilson,
4 Wash. C. C. 60, Fed. Cas. 5477, holding that Pennsylvania practice per-
mits suit by foreign executor or administrator.
Foreigfn judgments against an executor or administrator. Note, 27
L. B. A. 102, 107, 108.
Law governing succession and administration. Note, 2 E. B. 0. 90.
Miscellaneous. Cited to point that remedies and proceedings are gov-
erned by the law of the place where suit is brought, in Scobey v. Gibson,
17 Ind. 580; Shaffer v. Bolander, 4 Greene, 202; Union Bank v. Smith,
4 Cr. C. C. 36, Fed. Cas. 14,362 ; Jones v. Gibson, 1 N. H. 268 ; Hinkley v.
Marean, 3 Mason, 90, Fed. Cas. 6,523; Riddle v. Bedford County, 7 Serg.
6 R. 392 ; State v. Clark, 4 Strob. 315.
1 Cr. 282-290, 2 L. Ed. 100, THOMPSON v. JAMESON.
Where complaint declares for amount of decree, without interest and decree
^t in evidence includes interest, variance is fatal.
Cited in Pearsall v. Phelps, 3 A\a. 527, applying principle in holding
that declaration averring judgment in "the county of Richmond" is not
supported by proof of judgment in "the city of Albany"; Griffin v. Gana-
way, 6 Ala. 152, holding that difference of one-fourth of cent between
1 Cr. 290-309 NpTES ON U. S. REPORTS, 160
amount of attachment alleged and amount proven is immaterial; Caldwell
v. Bell, 3 Ark. 422, that averment of judgment with costs, naming costs, is
not sustained by proof of judgment with costs, not naming amount;
Rapelye v. Bailey, 3 Conn. 444, 8 Am. Dec. 201, holding that contract of
guaranty must be proved as laid; Williams v. Preston, 3 J. J. Marsh. 606,
20 Am. Dec. 185, holding that variance between declaration and proof, as
to amount and character of judgment, is fatal; Tilford v. Oakley, Hempst.
\197, Fed. Cas. 14,038a, holding that action of debt is proper remedy to
enforce decree for payment for specific sum of money; cited in Cain v.
Butler's Admrs., 4 Hayw. (Tenn.) 64, not in point.
1 Or. 290-299, 2 Ii. Ed. 112, MANDEVILLi: y. BIDDLR
Assignee of note may^ sue maker in debt; may also sue immediate assignor
in assumpsit but not remote assignor.
Cited in Riddle v. Mandeville, 5 Cr. 328, 3 L. Ed. 116, where it was held
that assignee might, however, sustain fuch suit in equity; Bank of United
States V. Weisiger, 2 Pet. 347, 7 L. Ed. 447, remarking that doctrine is
peculiar to Kentucky and Virginia, and holding that every effort must first
be made to collect from maker before -suing indorser ; by majority holding
in Dunlop v. Harris, 5 Call, 55, and in Caton v. Lenox, 5 Rand. 42, and
Drake v. Johnson, Hard. (Ky.) 230. Cited in Drane v. Scholfield, 6 Leigh,
396, and Long v. Pence, 93 Va. 587, 25 S. E. 594, noting that subsequent
Vii^nia statute conferred right to sue remote assignor at law ; McCarty v*
Rhea, 1 Blackf. 55, assignee cannot sue remote assignor^ dissenting opinion
in Hunter v. Hempstead, 1 Mo. 70, arguing for rule; on point that action
for debt lies on promissory note in National Bank v. Abell, 63 Me. 349, De
Proux v. Sargent, 70 Me. 271, and Payne v. Smith, 12 N. H. 41 ; Moses v.
Bank, 149 U. S. 303, 87 L. Ed. 745, 13 Sup. Ct. 901, discussing question under
statute of frauds; Hurd v. Hall, 12 Wis. 136, on question of warranty by
assignee of a chose in action.
Distinguished in Clifford v. Keating, 3 Scam. 252, holding that statute
authorized suit against remote indorser; Walker v. Brooks, 125 Mass. 245,
upon general question of right of assignee to sue in equity ; Banking Co. v.
Myer, 12 N. J. L. 147, and Watson v. Hahn, 1 Colo. 495, on statutory
grounds; Smith v. Harley, 8 Mo. 560, holding may sue remote indorser in
equity. See appendix, 1 Cr. 367-461, 2 L. Ed. 139, opinion of Cranch, J.,
at circuit, in Dunlop v. Silver, 1 Cr. C. C. 27, Fed. Cas. 4169, reversed by
principal case.
, Release of indorser of note by failure to enforce liability of maker.
Note, 18 L. B. A. (N. S.) 531.
Questions of State law as to which State court decisions must be fol-
lowed in actions originating in, or removed to, Federal courts.
Note, 40 L. B. A. (N. S.) 888.
1 Or. 299-309, 2 L. Ed. 115, STUABT y. LAIBD. '
Ck>ngre8B may establish such inferior courts as It sees fit and transfer a
cause from one such to anotheir.
161 STUART ▼. LAIRD. 1 Cr. 299-309
Cited in United States v. Haynes, 29 Fed. 696, 697, where indictment was
remitted from District to Circuit Court; dissenting opinion in Curless v.
Watson, 180 Ind. 121, 102 N. E. 510, majority holding act making final
decisions of appellate court in certain cases void.
FarULcomin^ bond is an appendage to canfle.
Cited in White t. Crump, 19 W. Va. 693, hblding supersedeas bond not
contract within obligation clause; State v. Blair, 29 W. Va. 476, 2 8. E.
334, holding that supersedeas to original judgment will supersede judgment
on delivery bond.
ConBtraction of statute fixed, hy coatemporaxLeous construction evidenced
Iff practice tliereunder, followed and acquiesced in for period of fears.
Approved in United States v. Midwest Oil Co., 236 U. S. 473, 59, L. Ed.
681, 35 Sup. Ct. 309, upholding right of President to withdraw public lands
without authorization from CcMigress; United States Fidelity etc. Co. v.
Commonwealth, 186 Fed. 291, 108 C. C. A, 331, upholding recovery on
ofScial bonds of county commissioners for use of county as poor district;
Ritcr-Conley Mfg. Co. v. Aiken, 203 Fed. 702, 121 C. C. A. 655, holding
building structures to be "manufactures" in construction of patents; Teel
V. -Chesapeake etc. Ry. Co., 204 Fed. 920, 47 L. R. A. (N. S.) 21, 123
C. C. A, 240, upholding provision of Federal Employee's Liability Act tak-
injT away right of removal from State courts to Federal courts; Leary v.
Mayor etc. of Jersey City, 208 Fed. 858, 126 C. C. A. 12, upholding location
of land for assessment and taxation in city limits; Levin v. United States,
128 Fed. 829, holding Congress may empower State courts to admit quali-
fied aliens to citizenship; Coming v. Board of Commrs., 102 Fed. 61, con-
struing Gen. Kan. Laws 1876, chapter 107, relative to issuance of bonds;
State V. Board of School Commrs., 183 Ala. 674, 63 South. 82, upholding
construction of statute providing for lease of school lands ; State v. Carter,
174 Ala. 279, 56 South. 979, act providing judge of inferior criminal court
shall act as ex officio of civil court not violative of Constitution prohibiting
holding two offices by one person ; Railroad Commrs. v. Market St. Ry. Co.,
132 Cal. 680, 64 Pac. 1066, holding that legislative iiiterpretation of Con-
stitution may be considered by courts; Board of Water Commissioners v.
Curtis, 87 Conn. 512, 517, 89 Atl. J.91, 192, upholding construction of word
"law" as "general law" as adopted in resolution of condemnation; State v.
Bryan, 50 Fla. 390, 39 South. 960, construing school laws ; Hill v. Tohill,
225 111. 393, 80 N. E. 256, upholding long construction of statute with
reference to partition fences ; McCurtain v. Grady, 1 Ind. Ter. 125, 38 S. W.
70, upholding right of discoverer to take coal within radius of one mile
from point of discovery; State v. Young, 137 La. 120, 68 South. 247, up-
holding right of Governor to fill vacancy in of&ce during recess of Seiiate ;
State V. New Orleans By. & Light Co., 116 La. 148, 40 South. 598, ihere
tinder 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; Baltimore City v. John-
son, 96 Md. 743, 54 Atl. 648, construing tax laws; State v. Northern Pac.
By. Co., 95 Minn. 47, 103 N. W. 732, foreign railroad, paying taxes under
I— 11
1 Cr. 299-309 NOTES ON U, S. REPORTS, • 162
gross earnings law, not prevented by failure to list credits from deducting^
debtS| from such credits; Henry v. State, 87 Miss. 57,. 58, 39 South. 871,
Acrts 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; Gill v. Board of Commissioners, 160 N. E. 190, 48 L. B. A.
(Nv 8.) 293, 76 S. E. 209, upholding construction that petition for forma-
tion of school district must be signed by "f reeholders who are voters ; Mis-
souri etc. Ry. Co. v. State, 29 Okl. 646, 119 Pac. 119, upholding interpreta-
tion of "public conveniences" in Constitution as including union passenger
depot; Higgins v. Brown, 20 Okl. 371, 94 Pac. 709, upholding ^ght of
State to prosecute crime for which indictment was found under territory;
Ex parte CIrump, 10 Okl. Cr. 147, 135 Pac. 434, upholding pardon granted
by Lieutenant-governor whjen Governor absent from State; Higgins v.
Brown, 1 Okl. Cr. 48, 94 Pac. 709, indictment for murder pending in Fed-
eral court of Indian Territory when State admitted to Union cog^zable in
District Court of State after admission; Floyd v. Quinn, 24 R. I. 161, 52
Atl. 885, upholding State judiciary lict of 1893; 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,
1 L. R. A. (N. S.) 1153, 62 Atl. 17, upholding statute permitting prosecu-
tion by information all crimes except those punishable by death or life
imprisonment; Colton etc. More v. Montpelier, 71 Vt. 416, 45 Atl. 1040,
construing Vt. Stats., § 365, authorizing towns to exempt manufacturing
establishments from taxation; State v. Davis, 62 W. Va. 510, 14 L. R. A.
(N. S.) 1142, 60 S. E. 588, holding sale of intoxicating liquors by retail
dealer a sale at place of business ; State v. Harden, 62 W. Va. 326, 58 S. E.
720, holding certain acts vest in council of town sole power to grant or
refuse license for sale of intoxicating liquors; dissenting opinion in Fair-
bank V. United States, 181 U. S. 319, 320, 321, 323, 45 L. Ed. 877, 878, 879,
21, Sup. Ct. 659, 662, 664, majority holding void stamp tax on foreign bill
of lading as tax on experts; dissenting opinion in Railroad Commrs. v.
Market St. Ry. Co., 132 Cal. 690, 64 Pac. 1070, majority holding that legis-
lative interpretation of Constitution may be considered by courts; dissent-
ing opinion in State v. Smith, 158 Ind. 561, majority upholding act of
1899, authorizing, for taxing purposes, deduction of mortgage indebtedness
from assessed value ; dissenting opinion rn Coyle v. Smith, 28 Okl. 220, 113
Pac. 984, majority holding invalid provision in enabling act by which
State was admitted requiring capital to be located in one place for certain
period; dissenting opinion in State v. Marcus, 160 Wis. 407, 152 N. W.
438, majority holding legislative act "entered" on journals of each house
when entered by number or title ; United States v. Ship Recorder, 1 Blatchf .
223, Fed. Cas. 16,129, as to construction of importation in foreign vessels
law;lUnited States v. Richardson, 28 Fed. 71, adhering to settled practice
in summoning of grand jurors; Rand v. United States, 38 Fed. 667, re-
quiring treasury department to adhere to practice of paying certain com-
missioners* fees ; Schell v. Fauch^, 138 U. S. 572, 34 L. Ed. 1043, 11 Sup. Ct.
380, sustaining validity of prospective protests against duties charged;
McPherson v. Blacker, 146 U. S. 27, 86 L. Ed. 874, 13 Sup. Ct. 7, as to
163 STyART V. LAIRD. ICr. 299-309
practice under presidential elector law*, In re Warfield, 22 Gal. 71, 83
Am. Dec. 58, affirming certain probate practice, although contrary to letter
of the statute; People v. Loewenthal, 93 111: 204, sustaining a corporate
charter, although presciibed formalities had b^en neglected ; Fall v. Hazel-
rigg, 45 Ind. 585, 14 Am. Bep. 282, applying rule to certain portion of
statute of frauds ; Board of Commrs. v. Bunting, 111 Ind. 145, 12 N. E. 151,
affinning power of county commissioners to build jail; State v. Harrison,
116 Ind. 307, 308, 19 N. E. 149, 150, upholding settled view as to amount
of salaries authorized by certain laws; Hovey ▼. State, 119 Ind. 388, 21
N. E. 890, declaring right o'f general assembly to appoint certain trustees
upon ground of settled practice; Parvin v. Wimberg, 130 Ind. 565, 30
Am. St. Bep. 258, 30 N. E. 791, approving construction of election law,
which election commissioners had taken upon advice of leading Ifiwyers;
Maxent v. Maxent, 1 La. 469, 470, affirming practice, commonly used, of
recording family meetings in French ; Newton v. Griffith, 1 Har. & G. 138,
sustaining construction of act of descents dn ground of long acquiescence;
Opinion of Justice, 126 Mass. 594, 595, applying rule of contemporaneous
construction in determining meaning of "money bill" in Constitution;
Winchester v. Glazier, 152 Mass. 323, applying this rule of interpretation
to partnership articles ; Clark v. Mowyer, 5 Mich. 468, disregarding certain
alleged irr^nlarities in notices of tax sale because long acquiesced in;
Franklin v. Kelley, 2 Neb. 87, approving a construction of pre-emption law
of thirty years' standing; State v. Glenn, 18 Nev. 45, 1 Pac. 191, upholding
settled practice of the signing of bills by assistant secretary of senate; State
T. Gray, 21 Nev. 389, 32 Pac. 194, sustaining practice of publishing consti-
tutional amendments in statutes and not in newspapers, as sufficient ; Fritcs
V. Kuhl, 51 N. J. L. 201, 17 Atl. 105, affirming temporary appointment to
office by executive as settled practice ; Attorney General v. Bank, 5 Ired. Eq.
72, den3ring claim that stockholders should pay tax under the statute since
corporation had for years paid without question ; Jack v. Shoemaker, 3 Binn.
285, 'applying rule to construction of statute respecting summons ; Pennsyl-
vania R. R. V. Pittsburgh, 104 Pa. St. 558, denying claim for municipal
tax against certain railroad property on ground of contrary construction
settled. for twenty years; Billis v. State, 2 McCord, 15, holding State bank
notes valid because legality long acquiesced in; Laval v. De Lieserline, 4
McCord, 75, sustaining power of municipality to appoint sheriff from long
user; Smith v. Hickman, Cooke (Tenn.), 336, sustaining settled construe-
tion of act, in land case ; Cox v. Breedlove, 2 Yei^. 502, sustaining, from
long user, practice of appointing special judges where regular ones dis-
qualified ; Hampton v. Allison, 9 Humph. 115, approving settled interpreta-
tion of act respecting process in Justice Court; Hillebrand v. McMahan,
59 Tex. 455, holding similarly as to act respecting jurisdiction in same;
Treawirer v. Kelsey, 4 Vt. 388, upholding act authorizing recognizance to
be proved before assistant fcounty judge from long usage thereunder,
although literally unconstitutional; Emerson v. Washburn, 8 Vt. 14, ap-
proving settled practice allowing execution for costs ; Boyden v. Brookline,
8 Vt. 286, holding rule that town officers not entitled to fees for services,,
settled by long usage; dissenting opinion in Oilman v. Morse, 12 Vt. 558,.
I Cr. 299-309 NOTES ON U. S. IHjlPORTS. " 164
maintaining State ijower to organize militia from long exercise thereof;
France v. Connor, 3 Wyo. 463, 27 Pac. 575, construing certain congressional
territorial legislation as to dower; Commissioners v. Gwin, 136 Ind. 572,
36 N. E. 240, holding that established usage requi^d Circuit Courts to be
held in county seat; Commonwealth v. Lockwood, 109 Mass. 339, 12 Am.
Bep. 713, holding that by settled practice Governor may pardon after
verdict and before sentence ; People v. Mayor etc., 25 Wend. 38, justifying
holding that aldermen may sit as judges in New York, from settled usage ;
Simpson v. Willard, 14 S. C. 195, deciding that under settled usage ap-
pointee upon death of incumbent held for unexpired term merely; dis-
senting opinion in Trout etc. Club v. Mather, 68 Vt. 354, 36 Atl. 329,
arguing as to meaning of ''boatable waters" in the Constitution; Lafayette
etc. R. R. V. Geiger, 34 Ind. 203, upholding statute authorizing municipal
aid to railroads ; Detroit v. Chapin, 108 Mich. 143, 66 N. W. 589, affirming
as valid signature by Governor to bill after adjournment from settled
practice though possibly not slrictly authorized; United States V. Rein-
deer, 27 Fed. Cas. 761, upholding settled interpretation of vessel license
law against its letter. Upholding validity of variety of laws upon ground
of long acquiescence: Prigg v. Pennsylvania, 16 Pet. 621, 10 L. Ed. 1091,
fugitive slave law ; The Laura, 114 U. S. 4l6, 29 L. Ed. 148, 5 Sup. Ct. 883,
statute authorizing secretary of treasury to remit steamboat penalties;
McPherson v. Blacker, 146 U. S. 27, S5 L. Ed. 874, 13 Sup. Ct. 7, sustaining
Michigan presidential elector law; Ex parte Gist, 26 Ala. 164, affirming
Federal statute as to commitment by justice of peace; McElvain v. Mudd,
44 Ala. 54, 4 Am. Bep. 110, as to slave legislation of Congress; Rogers v.
Beiler, 3 Mart. (La.) (0. S.) 670, sustaining early act of territorial Gov-
ernor creating office of special administrator; State v. New Orleans Co.,
II Mart. (La.) (0. S.) 311, affirming power of Congress to govern the
territories; Holmes v. Hunt, 122 Mass. 516, 23 Am. Rep. 385, sustaining
validity of reference of account to auditor; dissenting opinion in Parsons
V. Russell, 11 Mich. 124, arguing that statute was valid from acquiescence ;
Detroit Ry. v. Mills, 85 Mich. 646, 48 N. W. 1009, affirmirig municipal right
to authorize electric railways; Bell v. West Point, 51 Miss. 276, applying
rule in considering jurisdiction of Justices* Courts under the statutes;
NewGomb v. Smith, 2 Pinn. 138, upholding mill-dam law; United States v.
Mackenzie, 30 Fed. Cas. 1166, upholding act of 1800, as to crimes in navy.
In following cases the rule is applied in sustaining various statutes upon
ground that legislation attacked was similar to other statutes whi^h had
been upon statute books for years; Cooley v. Board, 12 How. 315, 13
L. Ed. 1008, upholding half pilotage law ; Auffmordt v. Hedden, 137 U. S.
329, 34 L. Ed. 680, 11 Sup. Ct. 109, provision of tariff act making merchant
appraiser's decision final ; Field v. Clark, 143 U. S. 691, 86 L. Ed. 309, 15
Sup. Ct. 504, of same law, giving President power to suspend certain
duties; Weaver v. Templin, 113 Ind. 301, 14 N. E. 601, where municipal
corporations were held authorized to make repairs without notice; Blood-
good V. Railroad, 18 Wend. 48, 31 Am. Dec. 345, sustaining right of eminent
domain for railroad as similar to turnpike; Knoxville R. R. v. Hicks, 9
Baxt. 451, affirming l^slative power to exempt corporations from taxa-
165 HAMILTON v. RUSSELL. 1 Cr. 309-318
tion; Bridges v. Shallcross, 6 W. Va.>576, involving a statute respecting
State penitentiary; dissenting opinion in Scott v. Sandford, 19 How. 616,
15 L. Ed. 788, arguing as to congressional power over slavery in the terri-
tories; Stewart v. Supervisors, 30 Iowa, 23, 1 Am. Bep. 248, sustainitig act
authorizing municipal aid to railroads; Cooper Co. v. Ferguson, 113 U. S.
733, 28 L. Ed. 1138, 5 Sup. Ct. 741, applying the principle in holding a
constitutional clause may be interpreted in the light of a contemporaneous
statute; dissenting opinion j^n Sparf v. United States, 156 U. S. 169, 39
L. Ed. 884, 15 Sup. Ct. 319, arguing that by early construction of law,
juries in criminal cases might disr^ard court's instructions as to the law,
majority sustaining later cases, contra; Ridgely v. Iglehart, 3 Bland Ch.
548, in general discussing of laws respecting real property liens.
Distinguished in Fairbank v. United States, 181 U. S. 307, 309, 45 L. Ed.
872, 873, 21 Sup. Ct. 658, holding void stamp tax on foreign bill of lading
as tax on exports; State v. Nashville Baseball Club, 127 Tenn. 304, Ann.
Cas. 1914B, 1243, 154 S. W. 1154, denying application of rule in holding
void Sunday law that had not passed three readings on three different^
days ; O'Donnell v. Glenn, 9 Mont. 463, 23 Pac. 1020, on ground that usage
must be uniform and not total joisregard of law; dissenting opinion in
State V. Kelsey, 44 N. J. L. 49, discussing extent and limits of rule and
aiguing it inapplicable there because the meaning of act was plain; State
V. Wrighton, 56 N. J. L. 206, 208, 28 Atl. 64, holding rule inapplicable
where statute clear; Egnew v. Cochrane, 2 Head, 332, where no evidence
of usage appeared in record, and usage relied ux>on to overcome statute
was by those interested in evading it.
Effect given by courts to contemporaneous practical Constitution of
unambiguous statute. Note, 10 Ann. Oas. 52, 53.
Appointment to office as executive or legislative function. Note, 13
Am. St. Bep. 145.
Removal of crin^inal causes into Federal courts from State or other
Federal courts. Note, 53 L. R. A. 568.
1 Cr. 300-318, 2 L. Ed. 118, HAMILTON ▼. BUSSEIiZk
Sale of personalty without transfer of pooseasion Is firandulent, per se, not
merely preeumptiyely so.
In Federal courts foregoing rule is applied in Meeker v. Wilson, 1 Gall.
423, Fed. Cas. 9392, holding attempted assignment void; Moore v. Ring-
gold, 3 Cr. C. C. 434, Fed, Cas. 9773, in instruction to jury that sale of
horse is void without delivery; Hamilton v. Franklin, 4 Cr. C. C. 730,
Fed. Cas. 5981, sale of slave invalid on this ground; Durham v. Ashton,
8 Fed. Cas. 130, no opinion reported; In re Hussman, 2 N. B. R. 437, 12
Fed. Cas. 1076, denying bankrupt's discharge for such fraudulent sale;
The Romp, 01c. 203^ Fed. Cas. 12,030, respecting a mortgage of a vessel;
Wyoming 'etc. Bank v. Dayton, 1 Wyo, 347, holding sale of certain wood
frauduleilt because no change of possession. The rule is followed in Cali-
fornia and expressly incorporated into its statutory law ; Stevens v. Irwin,
15 Oal. 506, 76 Am. Sec. 502, holding, however, that rule was not violated
ICr. 309^18 / NOTES ON U. S. REPORTS. 166
if at a snbsequent time the vendor was given custody of the chattels sold ;
Woods V. Bugbey, 29 Cal. 476, sale of kiln of bricks held fraudulent for
want of change of possession; Bunting v. Saltz, 84 Cal. 172, 24 Pac. 1(38,
declaring sale of farming implements void on this ground. As also, in
Colorado by statute: Finding v. Hartman, 14 Colo. 599, 23 Pac. 1005, dis-
cussing, but not deciding, point ; Roberts v. Hawn, 20 Colo. 80, 36 Pac. 887,
affirming rule, but holding transfer after execution of a conditional bill of
sale and before levy of attachment sufficient. The Florida courts have
nominally followed Hamilton v. Russell, but assert that vendor's cbntinued
possession is merely presumptive fraud ; Gibson v. Love, 4 Fla. 239 ; Holli-
day v. McEinney, 22 Fla. 165. Followed in KeAtucky, Dale v. Arnold,
2 Bibb, 606, holding fraudulent sale of slave without transfer; Grimes v.
Davis, 1 Litt. 242, a similar case; Goldsbury v. May, 1 Litt. 256, sale of
horse held fraudulent on this ground; Laughlin v. Ferguson, 6 Dana, 119,
holding sale of slaves fraudulent for this reason ; Foster v. Grigsby, 1 Bush,
98, resting decision on other ground. The Missouri courts adopted rule in
Sibly V. Hood, 3 Mo. 299, applying it in holding such sale of slaves fraudu-
lent even though conditional and not absolute; later cases departed^ from
it, but by act of 1865, it was practici^ly restored; Claflin v. Rosenber;c:,
42 Mo. 448, 97 Am. Dec. 3S8 ; Pattison v. Letton, 56 Mo. App. 331, 332, 333.
It is adopted by statute in Montana: Dodge v. Jones, 7 Mont. 141, 14 Pac.
715, holding branding of horses in a common pasture sufficient transfer.
The New Hampshire court follows rule with slight modification, holding
that continued possession is prima facie, and if unexplained, conclusive
evidence of fraud ; Coburn v. Pickering, 3 N. H. 425, 428, 14 Am. Dec. 878,
380 ; Shaw v. Thompson, 43 N. H. 132, applying rule to mortgage of person-
alty; Putnam v. O^ood, 52 N. H. 156, reviewing cases. See, however,
Haven v. Low, 2 N. H. 17, 9 Am. Dec. 28. Chancellor Kent practically
indorsed rule in Sturtevant v. Ballard, 9 Johns. 339, 6 Am. Dec. 282, con-
ceding there may be special exceptions. But later cases and act of 1830
established modified rule making presumption concltsive only when pos-
session unexplained. Hall v. Tuttle, 8 Wend. 388; Stoddard v. Butler, 20
Wend. 519, 533 ; Cole v. White, 26 Wend. 520 ; Hanf ord v. Artcher, 4 Hill,
309. In North Carolina rule is followed in Gaither v. Mumford, Tayl.
167 (604, 605), avoiding bill of sale of slavei though with some doubt,
afterward it was denied: Trotter v. Howard, 1 Hawks, 323, 9 Am. Dec. 642;
Smith V. Niel, 1 Hawks, 343. Oregon court followed rule in Monroe v.
Hussey, 1 Or. 190, 75 Am. Dec. 553, holding mortp^age in form of absolute
bill of sale invalid. Rule followed in Clow v. Woods, 5 Serg. ft R. 284,
287^ 9 Am. Dec. 354, 356, avoiding mortgage on this, ground ; Hower v.
Geesaman, 17 Serg. & R. 254, annulling deed of assignment; Younig v. Mc*
Clure, 2 Watts & S. 151, holding there must also be continued change of
possession; Milne v. penry, 40 Pa. St. 358; Stephens v. Gilford, 137 Pa.
St. 229, 21 Am. St. Rep. 871, 20 Atl. 543, reviewing authorities and reaf-
firming rule. Followed in Ragan v. Kennedy, 1 Overt. 98, 100, feut denied
in later case, Callen v. Thompson, 3 Yerg. 476, 24 Am. Dec. 588. Vermont
follows rule in two early citing cases, Weeks v. Wead, 2 Aik. 68; Fuller
V. Scars, 5 Vt. 531. In Virginia, Hamilton v. Russell rule is followed and
167 HAMILTON v. RUSSEUi. 1 Cr. 309-318
applied in Fitzhagh v. Anderson, 2 Hen. & M. 302, 303, 8 Am. Dec. 628,
629 , Land v. Jeffries, 5 Rand. 606, with some explanation and distinctions ;
Glasscock ▼. Batton, 6 Rand. 83, 18 Am. Dec. 706, Clayton v. Anthony, 6
Rand. 304, affirming rule expressly; Burchard v. Wright, 11 Leigh, 470,
applying role by analogy in (case sustaining executrix sale of property of
legEtee left in her possession; afterward overthrown in Davis v. Turner, 4
Gratt. 434, 460, 461, 462. Cited in general discussion reviewing cases,
Huntley v. Eangman, 152 U. S. 533, 38 L. Ed. 543, 14 Sup. Gt. 691, uphold-
ii^ deed of trust preferring certain creditors ; Howlan^ v. Dews, Charlt.
(Ga.) 386, ai^endo; Ramsey v. Stevenson, 5 Mart. (O. S.) 23, incident-
ally; Irwin V. Wells, 1 Mo. 12, in general discussion; Hall v. Snowhill, 14
N. J. L. 20, in general discussion holding such sale good between parties ;
Hudnal v. Wilder, 4 McCord, 297, 17 Am. D^c. 746 , Salmon v. Clagett, 3
Bland Ch. 172, holding such mortgage good between parties; Halbert ▼.
Grant, 4 T. B. Mon. 587, avoiding a conveyance from father to son. Ap>
proved in Bender v. Kingman, 64 Neb. 770, 90 N. W. 888, upholding direc-
tion of verdict in case of fraudulent intent; Horton v. Bamford, 79 N. J.
Eq. 379, 81 ^^tl. 771, applying rule to transfer of stock by bankrupt to ex-
tent of inadequacy of consideration; Morrison ▼. Marker, 93 Fed. 696,
arguendo.
Criticised in Warner v. Norton, 20 How. 459, 460, 461, 16 L. Ed. 963, re-
marking that weight of authority was contra, and distinguished on g^und
that there was constructive change of possession.
Distinguished in Wilson v. Walrath, 103 Minn. 415, 24 L. B. A. (N. S.)
1127, 115 N. W. 204, fraud overcome by evidence showing good faith of
vendee purchasing automobile; United States v. Hooe, 3 Cr. 89, 2 L. Ed.
875, upholding mortgage to secure further indebtedness where no change
of xMMsession; Etting v. Bank of United States, 11 Wheat. 75, 6 L. Ed.
422; Brooks v. Murbury, 11 Wheat. 81, 82, 6 L. Ed. 424, where deed of
trust to secure certain creditors was upheld although donor remained in
possession; Merrill v. Dawson, Hempst. 602, Fed. Cas. 469, holding posses-
sion by mortgagor not per se fraudulent ; Howard v. Prince, 1 Hughes, 242,
11 N. B. R. 326, Fed. Cas. 762, on ground that court was bound by local
law which had in Davis v. Turner, 4 Gratt. 423, abandoned rule of prin-
cipal ease; Howe Co. v. Clayboume, 6 Fed. 440, on ground that Michigan
statute made fraud question of fact; Malone v. Hamilton, Minor, 289, on
ground that it was there not an absolute conveyance but in trust merely.;
Chinn v. Russell, 2 Blackf . 173, where goods were not left with a debtor
vendor but with another; Watson v. Williams, 4 Blackf. 29, 28 Am. Dec.
39, mortgagor's continued possession of the chattels may be explained by
evidence; Greathouse v. Brown, 5 T. B. Mon. 282, 17 Am. Dec. 68, affirming
general rule but holding it inapplicable where purchase was at public auc-
tion; dissenting opinion in Yoder v. Standeford, 7 T. B. Mon. 510, on same
ground; Head v. Ward, 1 J. J. Marsh. 283, holding it inapplicable to deed
of trust of realty; Hundler v. Webb, 3 J. J. Marsh. 646, 20 Am. Dec. 192,
approving rule but holding it inapplicable to conditional sales; Breck-
enridge ▼. Anderson, 3 J. J. Marsh. 713, 714, holding it inapplicable to
sales under process of .law; Dawes v. Cope^ 4 Binn. 265, affirming rule but
i
1 Cr. 309-318
NOTES ON U. S. REPORTS.
168
noting exceptions and holding constructive delivery sufficient; Nelson v.
Good, 20 $. C. 233, holding that possession may be explained; Rose v. Bur-
gess, 10 Leigh, 197, upholding, under recording law, a mortgage without
change of possession.
Denied in Alabama, adopting rule that continued possession only pre-
sumptive fraud, Hobbs v. Bibb, 2 Stew. 60, 61, A3nres v. Moore, 2 Sfew.
342, 343, 344 , Killough v. Steele, 1 Stew. & P. 273 , Blocker v. Burness, 2
Ala. 356, Planters' Bank v. Borland, C Ala. 547; Burroughs v. Stoddard,
3 Conn. 434, holding it question of fact whether leaving of attached prop-
erty in defendant's possession made it fraudulent; Swift v. Thompson, 9
Conn. 68, 69, 21 Am. Dec. 722, 723, holding it question of fact; Osborne v.
Tuller, 14 Conn. 539, declaring fraud question for the jury but under
court's direction; Trotter v. toward, 1 Hawks, 323, 9 Am. Doc. 642, over-
ruling Gaither v. Mumf ord, Tayl. 167, 604, 605 ; Smith v. Niel, 1 Hawks,
343, holding fraud a question for the jury; Callen v. Thompson, 3 Yerg.
476,424 Am. Dec. 588 (overruling Ragan v. Kennedy, 1 Overt. 98), holding
possession may be explained; Bryant v. Kelton, 1 Tex. 423, reviewing au-
thorities at length; Davis v. Turner, 4 Gratt.-434, 460, 461, 4^, reviewing
and analyzing cases at length; fpllowed by Howard v. Prince, 1 Hughes,
242, Fed. Cas. 6762 ; Bindley v. Martin, 28 W. Va. 791, after a very elabor-
ate review and collecting of cases, and remarking increasing tendency to
abandon rule of the principal case. Somewhat criticised in New Hamp-
shire in Haven v. Low, 2 N. H. 17, 9 Am. Dec. 28, but afterward nominally
followed. In New Jersey, Runyon v. Groshen, 12 N. J. Eq. 89, inclines to
rule of prima facie presumption.
Transfer of property in another jurisdiction. Note, 12 Am. Dec. 470.
Retention of possession by vendor as evidence of fraud. Note, 14 Am.
Dec. 309.
Whether presumption of fraud flpwing from retention of chattel by
vendor may be overcome. Note, 24 L. R. A. (N. 8.) 1183, 1143, 1144.
Effect on legal title of conveyance in fraud of creditors. Note, 67
L. E. A. 865, 894.
Necessity of change of possession on sale of chattels. Note, 5 E. E. 0.
40.
Statute of ftands of Virginia and Bngliah statute np<»i wMdi it is based
are declaratory of common law.
Cited in Sumner v. Hicks, 2 Black, 534, 17 L. Ed. 357, collecting au-
thorities ; Blackman v. Wheaton, 13 Minn. 330, holding similarly as to Min-
nesota statute ; Rocheblave v. Potter, 1 Mo. 563, 14 Am. Dec. 307, deciding
case of fraud on cdhmion-law grounds; Pattison v. Letton, 56 Mo. App.
331, applying rule to Missouri statute; Monroe v. Hussey, 1 Or. 190, 75
Am. Dec. 553, Davis v. Bigler, 62 Pa. St. 248, 1 Am. Bep. 396, Hudnal v.
Wilder, 4 McCord, 297, 17 Am. Dec. 746, following rule as to South Caro-
lina law ; Meeker v. Wilson, 1 Gall. 423, Fed Cas. 9392 , Bean v. Smith, 2
Mason, 276, Fed. Cas. 1174, Hamilton v. Franklin, 4 Cr. C. C. 730, Fed. Cas.
5981, applying rule to Maryland statute; Howland v. Dews, Charlt. (Ga.)
I
169 NOTES ON U. S. REPORTS. 1 Cr. 318-332
386, Miller v. Marckle, 21 IlL 153, Beal v. Warren, 2 Gray, 46f, Drake ▼.
Rice, 130 Mass. 413, Piper v. Johnson, 12 Minn. 66, Howe ▼. Waysmen, 12
Mo. 172, 49 Am. Dec. 128, Brice v. Meyers, 5 Ohio, 123, Clow v. Woods» 6
Sei^. & R. 284, 287, 9 Am. Dec. 354, 356, Stephans v. Gifford, 137 Pa. St.
229, 21 Am. St. Rep. 871, 20 Atl. 543, Weeks v. Wead, 2 Aik. 68 , United
States V. Chnrch, 6 Utah, 543, 18 Pac. 38 , Gibson v. Love, 4 Fla. 239, Gary
V. Jaeobson, 55 Miss. 206, 30 Am. St. Rep. 516, Doolittl« v. Lyman, 44 N. H.
613, Beckwith v. Burrough, 14 R. I. 367, 51 Am. Rep. 398, Findley v. Cooley,
1 Blackf. 263, holding fraudulent deed good between the parties; similarly
in Springer v. Drosh, 32 Ind. 490, 2 Am. Rep. 360 , Webb v. Roff, 9 Ohio St.
434, noting contrary doctrine on this point; Nellis v. Clark, 20 Wend. 30,
approving rule.
Insbuctiona upon aSetraet propositioiia of law, not relevMit to cause, are
properly refosed.
Cited in Halliday v. McDougall, 22 Wend. 273, Lewis v. State, 4 Ohio,
397, remarking further that to refuse proper instructions is error; Shep-
herd v. McQuilkin, 2 W. Va. 100, remarking that relevancy must affirma-
tively appear; King v. Kenny, 4 Ohio, 82; Sterling v. Ripley, 3 Pinn. 163,
collating other rules and eases; Jones v. 'Riurmond, 5 Tex. 329; Proctor
V. Hart, 5 Fla. 467, Dibble v. Truluck, 11 Fla. 140, 143, holding that in-
struction on abstract question, if misleading to jury, is error; State v.
Chandler, 5 La. Ann. 491, 52 Am. Dec. 602; Clarke v. Baker, 7 J. J. Marsh.
197. Cited generally Frisbie v. Timanus, 12 Fla. 543.
Proper subjects of instructions to juries and to what extent judges
may comment upon evidence. Note, 72 Am. Dec. 540.
Virginia recording ac^ does not comptebend absolute blUa of sale so that
recording ^vaUdates ihem.
Cited, and this construction of similar fCentucky statute adopted, in
Dale V. Arnold, 2 Bibb, 606.
Right to impeach settlement of property^ not subject to execution*
-Note, 12 E. R. C. 342.
1 Or. 818-320, 2 L. Ed. 121, XTNITED 8TATE0 ▼. HOOE.
Appeal ftom Dkrtrlct of Columbia Court dismissed for waat of statement
of factein transcript.
Cited in Thompson v. Riggs, 5 Wall. 677, 18 L. Ed. 707, holding that in
cases appealed from Supreme Court of District of Columbia bill of ex-
ceptions is necessary; and to same effect in Stanton v. Embrey, 93 U. S.
555, 23 L. Ed. 984; United States v. Wonson, 1 Gall. 8, Fed. Cas. 16,750,
arguendo.
1 Or. 321-4»2, 2 li. Ed. 122, HEPBURN ▼. AVU), g. c, 5 Cr. 262, 3 U Ed. 96,
1 Wheat. 184, 4 L. Ed. 67.
To entitle plaintiff to performance he must diow perf ormaxice of precedent
acts due from himself or acts of defendant excusing perf onuanoe.
1 Cr. 332-343 KOTES ON U. S. REPORTS. 170
Cited lit Morgan v. Morgan, 2 Wheat. 299, 4 L. Ed. 244, holding speeifio
performance of contract for sale of land unenforceable because vendor
could not give good title ; Park v. Kelly Co., 49 Fed. 626, 6 U. S. App. 26,
where full tender of performance appeared; Powell v. Dayton R. Co., 14
Or. 359, 12 Pac. 667, holding that neither party to contract for contempora-
neous delivery of deed and payment of price can sue without showing
performance or offer.
Distinguished in dissenting opinion in Rogers v. Saunders, 16 Me. 109.
Tender of performance, to be availing, must not be accompanied by un-
aathorlzed conditions.
Approved in Dyer v. Muhlenberg Co., 117 Fed. 592, holding tender in
full of principal, interest and costs good under certain compromise agree-
ment; Danciger Bros. v. American Express Co., 172 Mo. App. 403, 158
S. W. 469, carrier contracting to return, at his own cost, goods unable to
deliver, tenders them to shipper on condition of release from liability for
nondelivery; Wendell v. New Hampshire Bank, 9 N. H. 413, holding tender
insufficient, because made conditional ux>on the giving of an assignment,
not required by the contract.
Distinguished in Skeels v. Blanchard, 85 Vt. 295, 81 At|l. 916, where
mortgagor deeding premises to mortgagee, who promised to reconvey upon
receipt of certain sum, tenders sum and demands quitclaim deed, tender
not conditional. '
Sufficiency and effect of tender. Note, 6 E, R. 0. 696.
1 Or. 332-342, 2 L. Bd. 128^ BCABINB IMBw OO. ▼. TOXTKa.
Assumpsit will not lie upon insurance policy under seal.
Approved in Kinney v. McNabb, 44 App. D. C 344, assumpsit will not
lie upon unexecuted sealed instrument in Action for breach of promise;
Eeffleman v. Pennington Co., ^3 S. D.^ 165, 52 N. W. 851, holding that seal
makes an instrument specialty; Fresh v. Gilson, 16 Pet. 335, 10 L. Ed. 985,
discussing cases where assumpsit will lie upon agreement substituted for
original under seal.
1 Or. 343, 2 L. Bd. 129, ABEBCTBOMBIB ▼. DUPUI8.
Citizentfiip of partiee must be averred where jurlsdictioii dependent
thereon.
Approved in Butterfield v. Miller, 195 Fed. 204, 115 C. C. A. 152, refer-
ence in complaint to defendant as citizen of Indiana is sufficient allegation
of nonresidence of Tennessee to give Federal court jurisdiction in attach-
ment; Kansas City etc. Ry. Co. v. Prunty, 133 Fed. 16, 66 C. C. A. 163,
right to remote to Federal court on ground of diverse citizenship not
shown by mere averment of residence; North River Co. v. Hoffman, 5
Johns. Ch. 303, Camp v. Wood, 10 Watts, 123, Commissioner's Court v.
Thompson, 18 Ala. 697, Ingraham v. Arnold, 1 J. J. Marsh. 407, and Don'-
aldson v, Hazen, Hempst. 424, 425^ Fed. Cas. 3984, all following rule; Brown
V. Keene, 8 Pet. 115, 8 L. Ed. 885, holding that the averment that defend*
\.
171
NOTES ON Ui S. REPORTS.
1 Cr. 34a-365
ant is "a citizen or resident of Louisiana'' isinsu£Scient; Marshall V. Balti-
more & Ohio Co., 16 How. 340, 14 Ii. Ed. 964, where the averment that
defendant is ^'a body corporate under an act of Maryland" is held suffi-
cient by a majority of the court, bu< Daniel, J., dissenting, cites the prin-
cipal case; Grace v. Amerfcan Ins. Ct>^ 109 U. S. 284, 27 L. Ed. 936, 3 Sup.
Ct. 211, holds that ''doing busines$ and residing in New York" is not
sufficient averment; Sherman v. Aidams, 19 Blatchf. 316, 11 Fed. 852,
description of plaintiff as "of C. in the State of Vermont" is held insuffi-
cient; Berlin v. Jones, 1 Woods, 639, Fed. Cas. 1343, holds ^that alleging
defendant to be "a citizen of the Southern District of Alabama" is equi-
valent to averring that he is a citizen of Alabama; Merchants' Bank v.
Brown, 4 Woods, 264, 17 Fed. 161, citizenship of defendant not averred,
and court dismissed case on that ground; Stephenson v. The Francis, 21
Fed. 718, description of a party as ''of" a certain State insufficient;
Morrison v. Bennett, 1 McLean, 330^ Fed. Cas. 9843, failure to aver citi-
zenship of one defendant ousted jurisdiction as to him; Speigle v. Mere-
dith, 4 Biss. 126, Fed. Cas. 13,227, averment that citizenship of certain
defendants is unknown insufficient excuse; Prentiss v. Barton, 1 Brock.
392, Fed. Cas. 11,384, examining .into truth of allegations as to citizenship;
Dred Scott v. Sandford, 19 How.' 473, 16 L. Ed. 728, arguendo; Shaw v.
Quincy etc. Co., 145 U. S. 447, 36 L. Ed. 770, 12 Sup. Ct. 936 , United States
V. Woolsey, 28 Fed. Cas. 769, remarking that rigor of rule is modified in
later cases. f
Distinguished in Atchison etc. By. Co. v. Phillip^ 176 Fed. 665, 100
C. C. A. 215, in action by widow for wrongful death of husband, juris-
diction of Federal court not defeated by failure to all^^ citizenship of
formal party without interest; Allen v. Blunt, 1 Blatchf. 485, Fed. Cas.
215, holding rule inapplicable to patent cases because jurisdiction rests
upon the snbjeet matter.
1 C^. 343-346, 2 I». Ed. 190, XJNIK> ▼. OABXmES.
Debt win not Ue on pcomlsBaiy note.
Cited in Olive v. Napier, Cooke^ 14, 20, to point that assumpsit, not debt,
lies by indorsee of note- against maker; Butcher v. Hixton, 4 Leigh, 528,
and Mclver v. Moore, 1 Cr. C* C. 91, Fed. Cas. 8831, holding that action
of debt is no exception to rule that the statute of limitations must be
specially pleaded.
Release of indorser of n4>te by failure to enforce liability of maker.
Note, 18 L. B. A. (N. a) 540.
1 Ot. 345^365, 2 Ii. Ed. 180, HODGSON ▼. DEZTEB.
Contracts made by public agent pursuant to his duty and authoiity bind
goreniment except when there is very plain intent that he be liable personally.
Approved in District of Columbia v. Camden Iron Works, 181 U. S. 460,
45 L. Ed« 953, 21 Sup. Ct. 683, holding where contract was executed as and
for District of Columbia, the seals of the commissioners are assumed to
be affixed as seal of District; Armour v. Roberts, 151 Fed. 852, liability
I
I
V
1 Cr. 345-365 NOTES ON ti. S. REPORTS. 172
to refund inheritance taxes, receiveij from bequests not taxable, enforce-
able against tax collector's successbr in office; Speir v. United States,
31 App. D. C. 482, contract betweeii builder and board of commissioners
of soldiers' home to erect building is contract with United States though
name of latter inadvertently omitted; Rood v.^Murray, 50 M6nt. 246, 146
Pac. .543, state superintendent of eotistruetion entering into contract for
labor and superintendence in construction of State building is not liable
personally; McKagen v. Windham, 59 S. C. 439, 38 S. E. 4, holding com-
plaint in action against county board of control as individuals niust allege
that members intended to bind themselves as individuals; State v. McCau-
ley, 15 Cal. 457, State prison commiasibners held public agents, within rule,
and not liable x>ersonally; Adams v. Whittlese/, 3 Conn. 566, also one
authorized to make and repair highway who employed assistants; Perry
V. Hyde, 10 Conn. 338, committee to build a bridge for a town ; Ogden v.
Raymond, 22 Conn. 385,' 58 Am. Dec* 432, school trustees in employing
teachers; Hewitt v. Wheeler, 22 Conn. 562, church building committee
lin contracting for church edifice ; Ghent v. Adams, 2 Ga. 218, justices of
the peace. in contracting for courthouscf no clear intent to bind themselves
appearing; Perrin v. Lyman, 32 Ind. 18^ ?ainy quartermaster in employing
clerk; Newman v. Sylyester, 42 Ind. 113, municipal common coupcil in
contracting street improvements, though beyond their jurisdiction; Brown
.'V. Austin, 1 Mass. 219, congressional commissioner appointed to investigate
a contested election. Elsewhere a State prison warden held not liable for
costs because a public agent. .Bradford v. Rowe, 3 Pick. 18. Hospital
trustee not personally chargeable because a State agent. Dewey v. Gar-
vey^ 130 Mass. 87. School trustees not: liable even though their contract
did not bind the school district. Sanborn v. Neal, 4 Minn. 139, 77 Am.
Dec. 505. Auditor of public accounts not bound personally on written
promise to pay salary. Copes v. Matthews, 10 Smedes & M. 402. School
trustees not liable iipon written order for salary. Tutt v. Hobbs, 17 Mo.
489. Surveyor-general not personally liable to one employed to make sur-
veys. Reed v. Conway, 26 Mo. 24. County judges not chai^able upon
county interest coupons because mere pub£c agents. Hannibal etc. R. R.
v. Marion Co., 36 Mo. 305. Town selectmaii not liable because their prin-
cipal bound. Hanover v. Eaton, 3 N. H. 39. Similar holding as to sur-
veyor of highways. Brown v. Rundleff, 15 N. H. 363, 366. Sheriff not
liable upon warranty in tax deed. Stevenson v. Weeks, 22 N. H. 263.
Overseers of poor not liable in contract for maintenance of paupers. In-
habitants V. Colfax, 6 N. J. L. 118, and Olney v. Wickes, 18 Johns. 125,
126. A township committee not liable upon promissory note, approving
rule in express terms. Knight v. Clark, 48 N. J. L. 74, 57 Am. Rep. 535, 2
Atl. 781. Quartermaster-general not liable on contract employing laborers.
Walker v. Swartwout, 12 Johns. 448, 449, 7 Am. Dec. 336, 338. Army
captain not personally liable to pay reward offered by him for capture
of deserters. Belknap v. Rhinehart, 2 Wend. 377, 20 Am. Dec. 622.
County magistrate not liable upon similar offer. Hite v. Goodman, 1
Dev. & B. Eq. 365. County commissioners not liable upon courthouse
building contract. Dameron v. Irwin, 8 Ired. 423. Parish road commis-
I
f
I
173 HODGSON v. PEXTER. 1 Cr. 345-365
sioneiB not liable in contracting for a|biidge, no dear intent apx)earing
to bind themselves. Miller v. Ford, 4 kich. 385, 55 'Am. Dec. 691. Tax'
collector not liable upon tax deed wasranty. Gibson v. Mussey, 11 Vt.
214. Purchasing agent of Confederate army not liable. Walker v.
Christian, 21 Gratt. 298. Army commiisaary-general not personally liable
in buying supplies. Syme v. Butler, 1 dall, 116. Executor not liable per-
sonally on covenant of deed although lie did not bind testator's estate.
Thayer v. Wendell, 1 Gall. 40, Fed. Cas. |l3y873. Clerk of House of Repre-
sentatives not liable in contracting for Sprinting of statutes. Garland v.
Davis, 4 How. !I%8, 11 L. Ed. 915. Vilagd officer not personally bound
by his order upon another. Graves v. McWilliams, 1 Pinn. 493; see, also,
1 Blackf. 242, note. The principal case has been relied on in holding that
government auditor could not be garnisheed as to government clerk's
salary. Averill v. Tucker, 2 Cr. C. CJ 545, Fed. Cas. 670; dissenting
opinion in De Bebian v. Gola, 64 Md. 273| 21 Atl. 279, arguing that Italian
consul not liable qu his note under oons|ilar seal. The doctrine has also
had another application; and it has been! hfeld that suit brought upon the
contract of a public agent should run in the name of the government as
plaintiff and not the agent. Bainbridge t- Downie, 6 Mass. 257, Balconibe
V. Northup, 9 Minn. 177. Cited in general discussion in Whiteside v. Jen-
nings, 19 Ala. 789, remarking that doctriile is to liability of public agents
is exception to general rule; Hovey v. M^giO, 2 Conn. 683, 689, case hold-
ing a certain private agent not liable; Merchants' Bank v. Central ' Bank,
1 Ga. 429, 44 Am. Dec. 668, discussing liability of corporate agent. Cited
arguendo, in holding congregational society bound by its agent's acts,
Barlov^ v. Congregational Society, 8 Allen, 463 $ Stone v. Wood, 7 Cow. 455,
17 Am. Dec. 531, a case of private agent; Commissioners v. Perry, 5 Ohio,
64, cited generally; Meyer v. Barker, 6 ^inn. 234, holding private agent,
liable; Roberts v. Button, 14 Vt. 204, fi'case involving private agent's
liability; as also, Devendorf v. West Virginia etc. Co., 17 W. Va. 158;
Sheets v. Selden, 2 Wall. 187, 17 L. Ed. 826, holding deed executed by
Governor and auditor sufficient to convey Ic^nd for State ; Bank v. Baldwin,
1 Cliff. 523, Fed. Cas. 892, a case of private agency; Potts v. Lazarus, 2
Car. L. Rep. 83 (180), J Bibb. 321. To point that if agency appears in
the body of contract form of signature is immaterial, in Ohio etc. R. R.
V. Middleto^, 20 111. 637. Cited, but not in point, Rogers v. Omaha Co.,
4 Neb. 57. In elaborate discussion of liabilities of pNiblic agents in Bel-
knap V. Schild, 161 U. S. 17, 40 L. Ed. 601, ]6 Sup. Ct. 445, holding gov-
ernment agents may be personally sued for their personal infringement of
patent rights.
Distinguished in Dwinelle v. Henriquez, 1 Cal. 392, holding public admin-
istrator not a public agent but personally liable for attorney fee ; Sterling
V. Peet, 14 Conn. 252, holding ^town warden arid burgesses liable because
not duly authorizedi and no clear intent not to bind themselves; Yulee v.
Canova, 11 Fla. 47, where corporate officer was held personally bound
because exceeding his authority in contracting for supplies; Wilson v.
Fridenburg, 22 Fla. 151, holding executrix, borrowing money, under order
of court, liable because order was invalid and she not a public agent;
I
^ i / •
1 Cr. 365-46X NOTES OK b. S. REPORTS. 174
Clesveland y. Stewart, 3 Ght. 297 holding academy trustees not public
agents; Aven v. Beekom, 11 QtL d holding administrator liable upon his
warranty because not a public 'aaent; Gillaspie v. Wesson, 7 Port. 461,
31 Am. Dec. 719, holding brigad^r-general of militia had no power to
bind United States for horses bought; Bank v. Sanders, 3 A. K. Marsh.
185, 13 Am. Dec. 159, where a cliar intent to bind public agent did ap-
pear; Stinchfield v. little, 1 Me. £34, 19 Am. Dec. 66, as inapplicable to
private corporate agents; Sumnen v. Williams, 8 Mass. 185, 212, 6 Am.
Dec. 95, holding administrator oi insolvent estate liable on covenant in
deed; Simonds v. Heard, 23 Pico. 124, 34 Am. Dec. 42, on ground that
contract was for a municipal •co|*poration and defendants bound them-
selves personally; McClenticks vi Bryant, 1 Mo. 600, 14 Am. Dec. 312,
holding town commissioners liablei because they had exceeded their author-
ity ; Underbill v. Gibson, 2 N. H. }55, 356, 9 Am. Dec. 84, 86, holding town
selectmen liable for same reason ;!Waldron v. Tuttle, 4 N. H. 150, holding
one procuring warrant of arrest |to be issued and pron^sing to pay con-
stable for serving it, liable beoai^e not a public agent; Sheffield v. Wat-
son, 3 Gaines; 73 (but see Walkeri v. Swartwout, 12 Johns. 448, 449, 7 Am.
Dec. 836, 838), doubting rule aiid holding public agents to have bound
themselves personally; Gill v. Btown, 12 Johns. 388, holding that intent
appeared to bind* agents personally; Providence v. Miller, 11 R. I. 278,
23 Am. Rep. 457, on ground tha^ agent of city contracted personally and
bound himself; Ives v. Hulet, 12 Vt. 319, 334, overseers of poor hold liable
because by their default publio wtere not.
r
1 Or. 366-866^ 2 L. Bd. 137, X<ZiOYt> ▼. AUSZANDEB. .
If citation not served thirty diays, court will not take up case until thirty
days expire, unless defendant appear. i
Cited in National Bank v. Bank of Com., 99 U. S. 609, 25 L. Ed. 362,
holding statute means that defendant shall have at least thirty days'
notice before hearing, and not that citation shall be served thirty days
before return day; Knight v. Weiskopf, 21 Fla. 162, holding citation iip-
properly served ; Sammis v. Wightman, 25 Fla. 554, 6 South. 175, arguendo.
Distinguished in Welsh v. Mandeville, 5 Cr. 321, 3 L. Ed. 114, holding
that principal case did not decide that court would take up case at the
end of thirty days without defendant's consent.
Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. B. A. 846, 853.
A citation not served la a nullity.
, Followed in Vallabolos v. United States, 6 How. 90, 12 L. Ed. 856, hold-
ing appeal taken without a citation, a nullity; Kitchen v. Randolph, S6
TJ. S. 87, 23 L. Ed. 810, citation is essential to validity of writ.
1 Or. 367-461, AFPEMBIZ A.
(An opinion by Cranch, J., in Dunlop v. Silver, 1 Cr. C. C. 27, Fed. Cas.
4169; contra to Mandeville v. Riddle, 1 Cr. 290-299, 2 L. Ed. 112, supra.)
175 APPENDIX B. ICr. 462-466
Cited in 22 Blatchf. 60; 19 Fed. 303; 5 Ala. 574; 5 Conn. 24; 5 Conn.
75, IS Am. Dec 40; 29 Me. 225; 4 N. J. L. 356; 4 Wend. 497; 12 Rich.
528, 531, 78 Am. Dec. 472, 476; 2 Overt. 268; 2 Yerg. 44; 59 Vt. 339, 10
Atl. 634.
Approved in Kilbourn^ v. Wiley, 124 Mich. 375, 83 N. W. 101, holding
attorney entitled to lien on land for fees where he recovered land on
eontingency. m
1 €t. 402-466^ APFBKDIZ B.
(Reporter's note to Lindo v. Gardner, 1 Cr. 343-345, 2 L. Ed. 180.)
Cited in 3 J. J. Marsh. 367; 6 R. I. 26; 4 Leigh, 528; Cooke (Tenn.), 14,
20; 2 Cr. C. C, 7U; Fed. Cas. 17,791. '
\
/
\
NOTES
ON THB
UNITED STATES REPORTS
n CBANCH.
2 Ot. 0, 2 Ii. Ed. 191, WOOD ▼. WAONOK. .
Where jurisdiction depends upon dlyerse dtisensbip, aveirment that one
paity is ''of tbe State of Oeorgta** is insofflcient.
Approved in Brown v. Keene, 8 Pet. 116, 8 L. Ed. 887, holdinjj insuffi-
cient an averment that defendant id resident of Louisiana, having fixed
and permanent residence in St. Charles Parish; McNutt v. Bland, 2 How
21, 11 L. Ed. 164, where fact that parties are citizens of same State held
not to oust jurisdiction, provided party for whose use suit is brought is
citizen of another State ; dissenting opinion' in Marshall v. B. & 0, R. R.
Co., 16 How. 340, 14 L. Ed. 964, majority holding sufficient, averment that
'defendants are a body corporate, created by the l^^latnre of Mary-
land"; Dred Scott v. Sandford, 19 How. 473, 15 L. Ed. 728, holding free
n^ro not to be a citizen within meaning of Constitution; Grace v. Insur-
t anee Co., 109 U. S. 285, 27 L. Ed^ 935, 3 Sup. Ct. 211, holding insufficient,
averment that plaintiffs I 'are of the county of Kings and State of New
York"; Brown v. Noyes, 2 Wood. & M. 79, Fed. Cas. 2023, where court
held to have prima facie jurisdiction if parties are alleged to be citizens
of different States; Parkhurst v. Kinsman, 3 Wood, to M. 174, Fed. Cas.
10,761, holding averment that party is ''commorant" in a State, insuffi-
cient; Allen V. Blunt, 1 Blatchf. 485, Fed. Cas. 215, where jurisdiction of
court depended upon service of subpoena in district, and jurisdiction
denied, such service not appearing affirmatively on the record ; Sherman v.
Windsor etc. Co., 19 Blatchf. 315, 11 Fed. 852, holding averment of citizen-
ship insufficient; Prentiss v. Barton's Exr., 1 Brock. 392, Fed. Cas. 11,384,
holding further that person does not renounce citizenship by reason of
absence from State for purpose of business; Berlin v. Jones, 1 Woods,
639, Fed. Cas. 1343, holding averment that party is a citizen of Southern
District of Alabama^ equivalent to averment that he is citizen of State of
Alabama; Merchants' Bank v. Brown, 4 Woods, 264, 17 Fed. 161, as to
petition for removal of cause; Speigle v. Meredith, 4 Biss. 126, Fed. Cas.
13,227, holding insufficient, averment that residence of defendants is un-
known; Stephenson v. The FraYicis, 21 Fed. 718, dismissing libel and hold-
ing description of chartcrei-s as bcinj; *'of the city of New York," not
I— la (177)
2Cr.&-33 NOTES ON U. S. REPORTS. ' 178
sufficient aveiment of residence to establish maritime lien; United States
V. Woolsey, 28 Fed. Gas. 769, holding further that defect mdy be taken
advantage of by demurrer; Commissioners Court of Talladega Co. v.
Thompson, 18 Ala. 697, holding that in order to establish jurisdiction of
County Court of roads it must appear affirmatively that road is within
county; Ingraham t. Arnold, 1 J. J. Marsh. 407, holding that where juris-
diction limited, necessary facts must be averred in declaration; Jim v.
State, 3 Mo. 163, holding further as to means of taking advantage of de-
fect; North River Steaml^oat Co. v. Hoffman, 5 Johns.. Ch. 303, denying
petition for removal where some of the parti/^, plaintiffis and defendants
respectively, were citizens of same State; Donaldson v. Hazen, Hempst.
424, Fed. Cas. 3984, discussing general subject. i
Miscellaneous. Cited in Robinso^ v. Peru Plow etc Co., 1 OkL 1#, 31
Pac. 990, consent cannot give jurisdiction.
2 Or. 9^10, 2 li. Sd. 191, jrTLLLAMB y. LTLBa
Error in ipecitals of sums in forthcoming bond does not invalidate bond
where wbole gum for v/hich. bond w«a given was amount of debt and costs of
execution. ,
Approved in Holt v. Lynch, 18 W. Va. 671, holding that where recital
sets forth lai^r sumjkhan is due, it is not such variance as will invalidate
bond, but judgment should be given for amount actually due.
2 Or. 10-33, 2 Ik Ed. 191, FAW ▼. SaEABSTEIXBR.
Contxact for paynMQt of distinct soms at dliferent times is of nature of
distinct contracts; debt lies for eacb as it becomes due.
Cited in Davis v. Preston, 6 Ala. 85, as to contract to pay certain sum
for services in semi-annual installments; Broumel' v. Rayner, 68. Md. 50,
11 Atl. 834, holding that where contract provides for paving certain
streets, waiver as to some streets does not impair obligation as to others.
Distinguished in dissenting opinion in Hutchinson v. New York Sc
Pennsylvania Co., 269 Fed. 515, majority holding logging contract with
requirement to, cut certain quantity each year and pay for logs as cut not
severable.
Parol eivldence i« Inadwriwible to contradict twms of deed.
Approved in Warner v. Brinton^ 29 Fed. Cas. 238, holding void will con-
taining patent ambiguity; Ratliff v. Ellis, 2 Iowa, 63, 63 Am. Dec. 473,
holding parol evidence inadmissible to change absolute deed into trust
deed, in absence of fraud, accident or mistake.
Explicit provisions in statute, comprehending in terms whole class not
restrained by applying implication from subsequent Y'ords, unless Imi^llcation
clear.
Apixroved in McGrew v. Missouri Pac. Ry. Co., 230 Mo. 524, 132 S, W.
1084, short-haul rule incorporated in Missouri Constitution not restricted
by implication in subsequent section that leg^lature is to prevent only
179 FAW V. MARSTELLER. 2 Cr. 10-33
imjast diseriiniiiations ; National Bank v. City of St. Joseph, 24 Blatchf.
440, 31 Fed. 218, constroing statute providing for issue of bonds h^ city;
United States v. Debs, 64 Fed. 749, where expression "in restraint of
trade" held to extend not only to combination in form of trusts, but also
to eombinations of labor; Bartlett v. Morris, 9 Port. 268, where statute
authorizing alien to inherit such estates as she, might have inherited had
she not been an alien, held not to have removed alien ancestor's disability
to transmit property to her; Mangham v. Cox, 29 Ala. 88, holding liability,
under statute providing against transjMrtation of slave without master's
■written consent, to. extend to such act committed unintentionally; Siming-
ton V. State, 5 Ind. 484, interpreting act prescribing jurisdiction of courts ;
Leonard v. Wiseman, 31 Md. 205, construing act providing for bounty to
volunteers and enlisted men, holding it to repeal prior statute so far as
inconsistent; Jim v. State, 3 Mo. 167, as to construction generally; Cham-
berlain V. Western Transportation Co., 44 N. Y. 311, 4 Am. Rep. 686,
holding exemption of carrier from liability for loss by fire of "any goods
or merchandise whatsoever," to extenM to baggage of passengers; Stiles
V. Murphy, 4 Ohio, 97, construing statute prescribing effect of judgment yss
lien ; in Walden v. Lane, 1 Overt. 75, as to statute limiting jurisdiction of
Justices' Courts.
Wliere case tfio?ni to be out of spirit of law, letter of statute will not be
deemed to exclude another construction.
Approved in Jim v. State, 3 Mo. 170, construing statute providing for
change of venue on ground of interest of judge; Ayers v. Lawrence, 59
K. Y. 199, holding that under act for '^ protection of taxpayers against
wrongful acts of public officers or agents," action lay to prevent unauthor*
ized act by special commissioner.
Obligation of contract to pay "current money*' is satisfied by payment of
tiist wbich law recognises as mcmey wben payment due.
Approved in Legal Tender Cases, 12 Wall. 548, 20 L. Ed. 311, upholding
power of Congr^s to make United States notes legal tender; but distin-
guished in dissenting opinion in Herbert v. Eaton, 4^ Ala. 553, holding,
however, that true criterion is value of property at date of sale; so also
in Bozeman v. Rose's Exrs., 51 Ala. 325; Higgins v. Bear River Mining
Co., 27 Cal. 161, but holding further as to effect of agreement to pay in
particular kind of money; dissenting opinion in Hepburn v. Griswold, 2
Duv. (Ky.) 72, majority holding legal tender acts unconstitutional^, Howe
V. Nickerson, 14 Allen, 402, where court refused to enforce specific per-
formance of award to pay certain number of dollars ''in gold"; applied
in George v. Concord, 45 N. H. 448, under similar facts. Cited in Metro-
politan Bank v; Van Dyck, 27 N. Y. 454, as to satisfaction of mortgage ;
L^al Tender Cases, 52 Pa. St. 70, where rent payable iu ''lawful silver
money" held satisfied by payment in treasury notes; Dearing's Admx. v.
Rucker, 18 Gratt. 450, as to note taken in lieu of payment in Confederate
currency. Criticised in dissenting opinion, Legal Tender Cases, 12 Wall.
661, 20 Ii. £d. 348, majority upholding power of Congress to make United
States notes legal tender.
/
i Cr. 33-64 NOTES ON U. S. REPORTS. 180
2 Or. S3, 2 L. Bd. 198, OOLS ▼. LER
«
Oofat can conaidflr only queettons upon "wliicli Judges Mbw divided In
opinion.
Approved in Ward v. Chamberlain, 2 Black, 434, 17 L. Ed. 828, refusing
to consider irregularities in proceedings below; dissenting opinion in Dow
V. Johnson, 100 U. S. 173, 25 L. Ed. 637, majority holding that Circuit
Court could take cognizance of certificate of division 4n a case not within
its jurisdiction, in first instance; State v. Crocker, 5 Wyo. 398, 40 Pac.
684, holding that although questions may be reserved before judgment,
hearing of them upon certificate is within appellate jurisdiction of higher •
court.
By determination of questional parties are not precluded from bringing
writ of eirer on final Judgment below.
Approved in Daniels v. Railroad Co., 3 Wall. 255, 18 L. Ed. 225, dis-
missing action for want of jurisdiction, certificate havipg brought up whole
case, both fact and law, although by single points^; Bpgg v. City of Detroit,
5>Mi<^h. 70, holding that it is no objection to jurisdiction that whole matter
may be again brought up on appeal.
Interlocutory decree may be reversed by court at any time. ,
Cited in Griffin v. Oman, 9 Fla. 47, as to decree directing reference for
purpose of ascertaining material facts; Deickhart v. Rutgers, 45 Mo. 136,
as to decree directing payment of sum to be ascertained by referee; dis-
senting opinion in County of Cook v. Canal Co., 131 IlL 519, 23 N. E.
632, majority holding that after term has expired, court has no authority
at subsequent term to set aside decree granting new trial.
2 Or. 83-64, Ii. Ed. 199, PENNIKOTON y. COZE.
Every part of an act must be considered to discover intent of legislature.
This rule has been applied in the following cases, construing various
statutes : United States v. Freeman, 3 How. 565, 11 L. Ed. 728 ; dissenting:
opinion in Hendenion's Distilled Spirits, 14 Wall. 68, 20 L. Ed. 820;
Arthur v. Lahey, 96 IJ. S. 117, 24 L. Ed. 767; Wilson v. Rousseau, 1
Blatchf. 84, Fe^. Cas. 17,832; In re Jayne, 28 Fed. 424; Cross v. See-
berger 30 Fed. 428; Van Patten v. Chicago etc. Ry. Co., 81 Fed. 547;
Eslava's Heirs v. Boiling, 22 Ala. 736; State ex rel. v. Commissioners, 20
Fla. 432; Akin v. Freeman, 49 Ga. 54; Lyles v. Barnes, 40 Miss. 609;
Lamed v. Corley, 43 Miss. 695 ; New Orleans J. & G. N. Ry. Co. v. Evans,
49 Miss. 788 ; Jim v. State, 3 Mo. 167, 170 ; State v. Delesdenier, 7 Tex.
106.
Approved in In re Lands of Fi^-e Civilized Tribes, 199 Fed. 824. Sup-
plemental agreement of 1902 construed to give Choctaw and Chickasaw
freedmen homestead protected by same restrictions attaching to homestead
of members of tribes; United States v. Baltimore et<i. R. Co., 159 Fed. 37,
86 C. C. A. 223, statute tegulating time of confining stock in cars without
linloading, with proviso for extending time upon consent of owner of ship-
ment, construed to allow penalty for each shipment; Louisiana v. American
/
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181 MURRAY V. THE CHARMING BETSEY. 2 Cr. 64r-126
etc. Refining Co., 108 La. 635, 32 South. 978, holding sugar refiner is
manufacturer, and as such exempt from license taxation under Constitu-
tion; Great Southern Fire Proof Hotel Co. v. Jones, 178 U. S. 94, 44 L. Ed.
889, 20 ^up. Ct. 690, arguendo.
2 Cr. 64-126, 2 I.. Bd. 206, MUBBAY r. THB CHABMINO BETSEY.
Act of Congress norer coostraed^to violate law of natlcms, If any other
pooilble construction remaiiuk
Cited in Waltham Watch Co. v. Keene, 202 Fed. 242, patent laws not
construed to give owner of patent right to fix price for resale of patented
article by dealers, in violation of public policy; opinion rendered by Apple-
ton 4ind Kent, JJ., to House of Representatives, declaring ** personal
liberty acts" constitutional (46 Me. 687; Ex parte Blumer, 27 Tex. 740),
holding foreigners not domiciled in Confederate States not liable to enroll-
ment under conscript laws.
Vessel and cargo belonging to one, who, thougb born in the TTnlted States,
was resident of Danish island, and had taken oath of aUeglance tp Idng of
Denmazk, is not liable to forfeiture under act suspending Intercourse with
France. .
Cited in Sands v. Knox, 3 Cr. 503, 2 L. Ed. 512, holding that noninter-
eourse act imposed no liability upon United States vessels sold bona fide
to foreigners, while act in force; United States v. Wong Kim Ark, 169
U. S. 658, 42 L. Ed. 894, 18 Sup. Ct. 460, holding child bom of Chinese
parents resident in this country, to be citizen- within meaning of Fourteenth
Amendment; Comitis v. Parkerson, 56 Fed. 558, holding a9tual removal
from country and acquisition of domicile elsewhere to be condition prece-
dent to expatriation; Schooner Amado and Cargo, 1 Newb. 407, Fed. Cas.
12,005, holdinpdiable to forfeiture vessel owned by Frenchman domiciled
in Mexico, with which country United States was at war ; dissenting
opinion in AmgB; v. Smith, 1 Litt. (Ky.) 341, majority holding free negro
not citizen by reason of birth in this country; Lyndon v. Danville, 28 Vt.
816, hol4ing that alien born does not have settlement in State which his
father had, if before birth of child, fattier removed into foreign jurisdic-
tion and did not return. Cited in general discussion of subject in The
Mary and Susan, 1 Wheat. 55, 4 L. Ed. 35; United States v. One Hundred
and Fifty-nine Packages, 27 Fed. Cas. 286, 290.
Probable cause' for seizure.
Approved in The Panama, 176 U. S. 544, 547,^4 L. Ed. 581, 582, 20
Sup. Ct. 484, hol(iing mail steamer carrying guns and ammunition liable
to capture as prize ; The George, 1 Mason, 27, Fed. Cas. 5328, holding suifi-
cient circumstances which warrant reasonable suspicion of illegal conduct;
Burke v. Trevitt, 1 Mason, 102, Fed. Cas. 2163, where officer of revenue,
seizing vessel under probable cause, held liable only for ordinary neglect.
The Ship La Manche, 2 Sprague, 224, Fed. Cas. 8004, holding probable
cause to be excuse, although vessel acted involuntarily, and was misled
by mistakes of revenue officei:8 of captor's government; Williams v.
2Cr.l26 NOTES ON U. S. REPORTS. 182
Delano, 165 Mass. 14, 28 N. E. 1123, holding further pendency of libel
for forfeiture of vessel to he bar to action of conversion a^nst captor;
The Marianna Flora, 3 Mason, 123, Fed. Cas. 9080, and Shattuok v. Malley,
1 Wash. 247, Fed. Cas. 12,714, both arguendo.
Meaaure of damages for illegal seizure.
Approved in Manro v. Almeida, 10 Wheat. 486, 6 L. Ed. 872, holing-
further that damages are decreed against person of libelant; The Scotland,
105 U. S. 36, 26 L. Ed. 1005, holding that if cargo has no market value
in place of shipment, measure is price at port of destination with fair
deduction for profits and charges ; The Schooner Lively and Cargo, 1 Gall.
322, Fed. Cas. 8403, holdings supposed loss of cargo not to be item of
damages; Dyer v. National etc. Co., 14 Blatchf. 489, Fed. Cas. 4225, and
in the Mary J. Vaughn, 2 Ben. 50, Fed. Gas. 9217, ruling similarly in ac-
tion for damages for loss cf vessel in collision; Pacific Ins. Co. ▼. Conrad^
1 Bald. 143, Fed. Cas. 10,647, sustaining right of holder of goods on re-
spondentia bond, to recover for illegal seizure; The Propeller Galatea, 6
Ben. 262, Fed. Cas. 5185, holding report of commission to assess damages
should state items explicitly; The Aleppo, 7 Ben. 125, Fed. Cas. 158, hold-
ing that where contract price of cargo included expenses for drayage,
charges for brokerage, and commissions and consul's certificates, they
should be allowed as part of prime cost. Cited approvingly in discussion
of general subject in Malley v. Shattuck, 3 Cr. 489, 2 L. Ed. 508.
Interest on sum allowed as damages. Note, 18 L. R. A. 458.
Interest on unliquidated damages. Note, 28 L. R. A. (N* 8.) 9. '
Defect appaxent on face of report iiwewiing damage ia not cured by fall-
lire of party to except to It.
Cited to same effect in Whitehead v. Perie, 15 Tex. 15, as ta aeeovat of
auditor, which failed to state items as required by statute.
Duty of conquering with respect to obligations of conqueied State.
Note,. 5 B. R. 0. 907.
Miscellaneous. Cited in Price y. Thornton, 10 Mo. 138, on point that
owners of vessel are liable for tortious acts of master, unless they are
acts of piracy; erroneously in Turley v. Dreyfus, 33 La. Ann. 887,
2 Cr. 126, 2 li. Ed. 229, OAFROK ▼. VAN NOOBDEK.
Oitlzensliip of plaintiff In Circolt Court must be clearly shown.
Approved in Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S.
453, 44 L. Ed. 844, 20 Sup. Ct. 692, holding limited partnership not a
corporation within judiciary act ; Hill v. Walker, 167 Fed. 246, 92 C. C. A.
633, in action on colitract alleging plaintiff and defendant citizens of
different States, Federal court has jurisdiction unless evidence disproves
. it; Utah-Nevada Co. v. De Lamar, 133 Fed. 121, 66 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; Wahl
V. Franz, 100 Fed. 682, holding probate o|f will is not within jurisdiction
183 CAPRON V. VAN NOORDEN. 2 cA 126
of Circuit Court; Myers v. Berry, 3 Old. 618, 41 Pac. 682, denying equity
jnrisdietion over petition to annul action of townsite trustees in disposing '
of lot where findings on which action based and allegations of fraud are
not set out; litz v. Rowe, 117 Va. 759, L. R. A. 1916B, 802, court must,
of its own motion, deny jurisdiction in all cases where such does not
affirmatively appear of record; Freer v. Davis, 52 W. Va. 12, 13, 94 Am.
St Sep. 905, 906, 43 S. E. 168, 169, holding appellant not estopped on ap- y
peal to attack jurisdiction; Whitworth v. Illinois Cent. R. Co., 107 Fed.
560, arguendo; Brown v. Keene, 8 Pet. 116, 8 L. Ed. 886, holding instiffi-
eient allegation that party is ''resident of Louisiana"; Bank of United
States V. Moss, 6 How. 39, 12 L. Ed. 835, holding, however, that where
declaration contains special and common counts, apd jurisdiction is not
apparent as to special counts, if common counts are sustained court will
not set aside jud^ent unless ohjection made during trial ; dissenting opin-
ion in Marshall v. B. & 0. R. R. Co., 16 How. 340, 14 L. Ed. 964, majority
holding sufficient, averment that "defendants are a body corporate created
by l^islature of Maryland"; Bors v. Preston, 111 U. S. 263, 28 L. Ed.
422, 4 Sup. Ct. 412, holding alienage not i^resumable from mere fact that
party is consul in this country of foreign government; Stuart v. Easton, ,
156 U. S. 47, 39 L. Ed. 341, 15 Sup. Ct. 268, holding insufficient, alleo:ation
that plaintiff is "a citizen of London, England"; Brown v. Noyes, 2 Wood.
& M. 80, Fed. Cas. 2023, where court held to have prima facie jurisdiction
where diverse citizenship alleged; Parkhurst v. Kinsman, 3 Wood. & M.
174, Fed. Cas. 10,761, holding insufficient, allegation that party is ''com-
morant" in a State; Berlin v. Jones, 1 Woods, 639, Fed. Cas. 1343, hold-
ing averment that defendant is citizen of Southern District of Alabama,
equivalent to averment that he is citizen of State of Alabama; Donaldson
V. Hazen^ Hempst. 424, Fed. Cas. 3984, holding further that the record,
must show one of parties to be citizen of State where action brought;
Speigle V. Meredith, 4 Biss. 126, Fed. Cas. 13,227, holding insufficient an
averment that residence of some of defendants is unknown; Fideliter v.
United States, 1 Sawy. 156, 1 Abb. (U. S.) 579, F^d. Cas. 4755, holding
that where seizure of vessel is jurisdictional fact, it must be alleged; also
in Commissioners' Court v. Thompson, 18 Ala. 697, holding that in order
to establish jurisdiction of a County Court of roads, it must appear
afiBrmatively that road is within county; dissenting opinion in Ex parte
Holman, 28 Iowa, 156, majority holding that mandamus is not in nature
of a new and original action, but ancillary to an original action ; Ingraham
V. Arnold, 1 J. J. Mar3h. 407, as to averment of jurisdictional facts where
jurisdictipn of court special and limited; Beebe v. Armstrong, 11 Mart
(0. S.) ^1-1, as to averments in petition for removal of cause; Klein v.
Pillsbury, 29 La. Ann. 790, applying principle \n holding that where stat-
ute prescribes form of warrant any other form is of no effect ; North River
Steamboat Co. v. Hoffman, 5 Johns. Ch. 303, .holding that cause cannot
be removed to Circuit Court where some of parties, plaintiffs and defend*
ants respectively, are citizens of same State; Myers v. Berry, 3 Okl. 618,
41 Pfu:. 582, holding jurisdiction of subject matter is determined from alle-
gations. The principal case has also been cited in the following cases ,
\
2 Or! 126 NOTES ON U. S. REPORTS. 184
discussing the general subject : Dred Scott v. Sandf ord, 19 How. 402, 430,
15 L. Ed. 699, 711, dissenting opinion in Salisbury v. State, 6 Conn. 106,
Wandling v. Straw, 25 W. Va. 700.
Plaintiff may assign for error, want of Jurisdiction of court in which he
Instituted suit.
Approved in Intemationaretc. R. Co. v. Hoyle, 149 Fed. 182, following
rule; Alexander v. CroUott, 199 U. S. 581, 50 L. Ed. 817, 26 Sup. Ct. 161,
New Mexico territorial Supreme Court may refuse to restrain ju^ice of
peace from taking further proceedings in unlawful detainer; Wallace v.
Degree, 38 App. D. C. 148, Ann. Cas. 19130, 118, dismissing replevin for
want of jurisdiction where plaintiff alleged and defendant did not deny
in Justice's Court that value of goods not more than three hundred dollars,
consent of parties not giving jurisdiction; People v. Evans, 262 111. 238,
104 N. E. 647, claimant of interest in land not made party to suit to fore-
close tax lien, may attack decree directly by writ of error for want of
jurisdiction; Litz v. Rowe, 117 Va. 760, L. R. A. 1916B, 802, plaintiff may
assign as error want of jurisdiction of court in which he filed suit for parti-
tion of real estate; Dred Scott v. Sandford, 19 How. 473, 518, ^66, 15
L. Ed. 729, 748, 768, following rule; M. C. & L. M. Ry. Co. v. Swan, 111
U. S. 382, 383, 28 L. Ed. 464, 4 Sup. Ct. ^11, 612 ; where plaintiff alleged
citizenship of defendant as unknown; also in Mexican etc. R. R. Co. v.
Davidson, 157 U. S. 208, 39 L. Ed. 675, 15 Sup. Ct. 565, on same point;
United States v. New Bedford Bridge, 1 Wood. & M. 406, Fed. Cas. 15,867,
holding further that objection may be made at any time; likewise in Van
Antwerp v. Hubbard, 7 Blatchf . 441, Fed. Oas. 16,826 , Bobyshall v. Oppen-
heimer, 4 Wash. 483, Fed. Cas. 1592, holding no inference in favor of
jurisdiction can be drawn from trial and judgment of cause; so, also, in
The John C. Sweeney, 55 Fed. 541, dismissing libel after hearing on
merits; Wabash Ry-Co. v. Barbour, 73 Fed. 516, 43 U. S. App. 102, as to
removal to court lacking jurisdiction ; Hale v. Crowell's Admx., 2 Fla. 538,
539, 50 Am. Dec. 300, 803, allowing appeal from judgment in action upon
joint contract, against one defendant, after action discontinued as to
others; Teal v. Russell, 2 Scam. 321, holding it to be error to take final
judgment against parties defaulting in action against several, before plea
filed by others disposed of; Jones v. Wight, 4 Scam. 339, 89 Am. Dec. 418,
as to plaintiff's right to bring error when judgment rendered in his favor,
in order to allow him to commence new action; Thayer v. Finley, 36 111.
264, where entry of confession of judgment without consent of, plaintiff
held to be error; Jordan v. Dennis, 7 Met. 590, as to judgment in replevin
rendered in Justice Court; Downing v. Still, 43 Mo. 318, holding void,
judgment rendered by court lacking jurisdiction; also in Evans v. Ills, 7
Ohio St. 235, and Abrams v. Jones, 4 Wis. 808, on same point. Cited
approvingly in Ricks v. Hall, 4 Port. 180, Jim v. State, 3 Mo. 163, 168,
discussing subject of appeal generally; dissenting opinion in Lincoln etc.
Min. Co. V, District Court, 7 N. M. 530, 38 Pac. 594, but application not
apparent.
Distinguished in Mercelis v. Wilson, 235 U. S. 583, 59 L. Ed. 371, 35
Sup. Ct. 150, where court had jurisdiction of subject matter and parties
\
186 HEAD V. PROVIDENCE INSURANCE CO. 2 Cr. 127-169
complainants cannot assign for error mling they invoked, changing bill
for injunction to prevent trespass into proceeding to quiet title ; Blanchard
V. Neill, 83 N. J. £q. 446, 91 At^, 811, complainant receiving less relief
than demanded is aggrieved by judgment and may sue but writ of error
through' judgment in his favor ; Monti v. Bishop, 3 Colo. 607, where appeal
denied defendant in equity who obtained affirmative relief upon answer
praying only to be "hence dismissed''; Ward v. Bull, 1 Fla. 276, refusing
to allow appeal where error one of fact.
Right of party to review judgment in his favor. Note, 3 ^Lnn. Gas.
610.
Estoppel of party invoking jurisdiction to deny it. Note, 16 L. B. A.
273.
Right of invoking party to raise, on appeal, objection of lack of juris-
diction. Note, L. B. A. 1916B, 804.
2 Ot. 127-169, 2 K Ed. 229, HEAD ▼. PBOVIDEKCE INSUBAKOE CX>.
Corporate powers axe derived from charter and can be exercised only in
maimer autboilzed by it.
Approved in Supreme Council of the Royal Arcanum v. Green, 237
U. S. 543, L. B. A. 1916A, 771, 59 L. Ed. 1101, 35 .Sup. Ct. 724, in-
crease of assessment rates by fraternal association, deriving authority
from Massachusetts charter and laws, held legal in Massachusetts, ap-
plies in New York; Waters-Pierce Oil Co. v. Texas, 177 U. S. 44, 44 L. Ed.
664, 20 Sup. Ct. 624, upholding Texas act of March 30, 1890, prohibiting
foreign corporations which violated act from .doing business in State;
Astoria v. American La France Fire Engine Co., 225 Fed. 23, contract of
municipal council of Astoria for purchase of fire eng^ine not authorized by
ordinance, as required by charter, is void; Seattle Gas etc. Electric Co. v.
Citizens' Light etc. Power Co., 123 Fed. 691, holding New Jersey corpora-
tion organized under general corporation laws cannot sell gas in another
State; State etc. v. Lashar, 71 Conn. 546, 42 Atl. 638, holding, under char-
ter provision, election of commissioner by certain municipal board was
void; Mason v. Mason, 160 Ind. 197, 65 N, E. 588, holding where decedent
took out death benefit in railroad relief society in favor of mother, and
after marriage surrendered certificate and requested issuance of new cer-
tificate of differeift class,* in favor of wife, but certificate did not name
beneficiary, there was no new designation of beneficiary; Silver v. Indiana
StBie Board, 35 Ind. App. 459, 72 N. E. 836, construing statutes relating
to revision of school books ; Scott v. Bankers' Union of the World, 73 Kan.
584, 85 Pac. 607, fraternal insurance society not having express power
under charter to issue promissory notes has no such implied power; 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 designa-
tion of beneficiary on third day after admission; Paul v. Seattle, 40 Wash.
330, 82 Pac. 604, under Seattle Charter, article IV, sections 27, 28, fact that
benefit of irregularly executed contract has been received by city does
not estop it from denying liability thereon ; dissenting opinion in Marshall
2 Cr. 127-169 NOTES ON U. S, REPORTS. , 186
etc. Co. V. City of Nashville, 109 Tenn. 515^ 71 S. W. 820, majority holding
ordinance providing that all city printing shall bear ni^ion label is void,
but as all city contracts must be let to Ipwest bidder, contract for printing
binding on city though work did not bear label; United States Bank v.
Dandridge, 12 Wheat. 98, 101, 6 L. Ed. 564, 565, holding, howe^^r, that
when by-laws provide for acceptance of cashier's bond, such provision is-
merely directory, and acceptance not a condition precedent to legal per-
formance of duties ; Bank of Augusta v. Earle, 13 Pet. 587, 10 L. Ed. 307;
holding power to purchase bills of exchange includes foreign bills ; Perrine
V. Chesapeake etc. Canal Co., 9 How. 184, 13 L. Ed. 97, where power to
take toll for commodities held not to include power, to take toll for vessel
or passengers; Pearce v. Madison etc. R. R. Co., 21 How. 444, 16 L. Ed.
, 185, holding power to do all necessary to construct lines does not include
power to consolidate; dissenting opinion in Rogers v. City of Burlington,
3 Wall. 669, 18 L. Ed. 84, as to power of municipal corporation to borrow
money; Sumner v. Marcy, 3 Wood. & M. 112, Fed. Cas. 13,609, holding
powers of lumber corporation do not include power to purchase stock in
* bank for purpose of securing control; Russell v. Topping, 5 McLean, 197,
Fed. Cas. 12,163, as to powers of bank to hold real estate; Alabama etc.
R. R. V. Jones, 5 Bank. Reg. 106, 1 Fed. Cas. 278, where corporation was
not authorized to carry on business necessary to bring it within bank-
ruptcy act, and proceedings dismissed; Hitchcock v. City of Galveston,
2 Woods, 286, Fed. Cas. 6532, applying principle to municipal corporation
in exercise of powers to construct and repair sidewalks; Merrill v. Monti-
' cello, 138 U. S. 687, 34 L. Ed. 1075, 11 Sup. Ct. 446, construing strictly
section in municipal charter providing method of issuing bonds; Pullan v.
Railroad Co., 4 Biss. 41, Fed Cas. 11,461, holding void a mortgage of cor-
^ ^ porate franchise, power to execute such mortgage not being inferable
from power to mortgs^e "road, income and other property"; Laclede Fire
Brick Co. v. Hartford etq. Ins. Co., 60 Fed. 368, 19 U. S. App. 610, as to
manner of executing 'policies; City of Superior v. Morton, 63 Fed. 359, 24
U. S. App. 69, construing strictly provision in municipal charter prescrib-
ing mode of executing contracts ; Citizens' Ry. Co. v. City Ry. Co., 64 Fed.
654, as to provision in charter regarding use of city streets ; First National
Bank v. Citizens' Bank, 9 Fed. Cas. 87, holding that bank authorized to
receive deposits generally could not receive special deposit in nature of
wager to be paid to one of two persons upon certain contingency; State
V. Stebbins, 1 Stew. 307, as to inability of corporation to exercise of bank-
ing powers in absence of express authorization; State v. Mayor etc. of
Mobile, 5 Port. 310, 30 Am. Dec. 567, where power to regulate width of
streets generally held not to apply to street whose width is fixed by
charter; Smith v. Insurance Co., 4 Ala. 561, as to section of charter pre-
scribing method of investing corporation capital; Ex parte Burnett, 30
Ala. 465, where power to fix price of liquor licenses held not to authorize
fixing of prohibitory license; City of Selma v. Mullen, 46 Ala. 414, sus-
taining power of city to contract by parol where manner not otherwise
prescribed; Lindauer v. Insurance Co., 13 Ark. 471, holding that agree-
ment to cancel policy must be executed in same manner as that prescribed
for execution of policies; Dunbar v. Alcalde etc. of San Francisco, 1 Cal.
X
187 HEAD T. PROVIDENCE INSURANCE CO. 2 Cr. 127-169
356^ as to act of city officers in destro3dng building to arrest progress of
fire; Holland v. San Francisco, 7 Cal. 375, as to method prescribed for
sale of city property; bat see also McCracken v. San Francisco, 16 Cal.
619, overraling preceding case under similar facts; Zottman v. San Fran-
ciseo, 20 Cal. 102, 81 Ai]^ Dec. ].01, construing strictly, provision regulating
method of awarding contracts for public improvements; also in French, v.
Teschemaker, 24 Cal. 550, as to method prescribed for investing city funds,
citing preceding case ; .Hartford Bank v. Hart, 3 Day, 495, as to power of
banking corporation to discount ^otes ; Weston v. Estey, 22 Colo. 344, 45
Pae. 370, denying power of bank to enter into contract to engage in min-
ing; New York Firemen Ins. Co. v. Ely, 5 Conn. 568, 13 Am. Dec. 101,
holding prohibition in charter against exercising banking powers includes
loaning of money ; Thames Mfg. Co. v. Lathrop, 7 Conn. 556, as to method
of assessing taxes prescribed in city charter; Berlin v. New Britain, 9 Conn.
180, construing strictly limitations on city power to regulate streets; dis-
senting opinion in Philadelphia Loan Co. v. Towner, 13 Conn. 267, majority
holding that where, under statute, contracts tainted with usury were not
absolutely void, charge by corporation of greater interest than that pre-
scribed in the charter did not render contract void; dissenting opinion in
Stamford Bank v. Ferris, 17 Conn. 275, majority holding transfer of stock
to cashier in his own name effective as transfer to bank; Couch v. Insur-
ance Co., 38 Conn. 187, 9 Am. Bep. 379, holding further as to inability of
coiTporation to waive provisioiis in charter; dissenting opinion in Southern
Ins. A Trust Co. v. Lanier, 5 Fla. 171, on same point; American Coloniza-
tion Society v. Gartrell, 23 Qa. 452, where corporation empowered to
reeeive piroperty for the pijirpose of colonizing free negroes, held not
capable of takhig slaves under a will, for purpose of sending them to
Africa; Betts v. Menard, Breese, 400, denying right of municipality to
grant ferry privileges to corporation, charter providing for grant to "per-
son"; Metropolitan Bank v. Godfrey, 23 111. 552, as to right of banking
corporation to hold real property under charter; Doe v. Chunn, 1 Blackf.
337, holding that power of municipal corporation to sell land for delin-
quent taxes confers no power to execute conveyance; Leonard v. Insurance
Co., 97 Ind. 304, construing strictly authorization to insure unincumbered
property; Presbyterian etc. Fund v. Allen, 106 Ind. 596, 7 N. E. 319, where
provisions as to method of contracting held to be mandatory; City of
Davenport v. Kelley, 7 Iowa, 106, as to exercise by municipal t^orporatioii
of powers incidental to granted powers; Coles v. Insurance Co., 18 Iowa,
429, holding that insurance corporation cannot be sued upon policy an-
nulled pursuant to charter; dissenting opinion in Cook v. School District,
40 Iowa, 446, majority holding defendant liable on parol contract for em-
ployment of teacher, although statute provided that such contracts be in
writing; Bank of United States v. N^rvell, 2 A. K. Marsh. 102, holding
corporation confined to charter powers in suing on note ; Breaux v. Parish
of Iberville, 23 La. Ann. 236, as to power of officers to bind city by issuing
notes; Laycock v. City, 35 La. Ann. 477, denying power of city council to
ratify unauthorized contract for purchase of gas, although city had re-
ceived benefit ; dissenting opinion in Bragdon v. Insurance Co., 42 Me. 267,
majority holding that custom may change rule; Weckler v. The Bank, 42
I
\/
2 Cr. 127-169 NOTES ON U. S. REPORTS. 188
4
lid, 590, 20 Am. Bot>. 101, as to power of banking corporation to sell bonds
on commission; Perry v. House of Refuge, 63 Md. 23, 52 Am. Rep. 498,
ruling similarly in holding corporation not liable for unauthorized assault
by officers; Mclntyre v. Ingraham, 35 Miss. 55, where power to assign
notes held not implied from general power to hold property; Mobile etc.
R. R. Co. V. Franks, 41 Miss. 511, holding that railroad corporation can-
not limit common-law liability as carriers; Plahto v. Insurance Co., 38
Mo. 255, holding by-laws to govern strictly method of issuing policies;
Ruggles ▼. Collier, 43 Mo. 375, as to provision in city charter prescribing
method of regulating street paving; Matthews v. Skinner, 62 Mo. 332,
21 Am. Bep. 427, constnling strictly charter provision as to holding of
land ; Lebcher v. Commissioners etc., 9 Mont. 320, 23 Pac. 714, as to power
of county to regulate mpde of caring for poor; Trustees of Peaslee, 15
N. H. 331, as to powers of trustees of charitable corporation; Bergen v.
Clarkson, 6 N. J. L. 364, construing strictly provision in city charter regu-
lating method of levying taxes ; Paxson v. Sweet, 13 N. J. L. 203, as to
implied powers of municipal corporation ; B^atty v. Insurance Co., 2 Johns.
114, 3 Am» Dec. 408, •as to provision regulating method of paying losses ;
Hosack V. College of Physicians, 5 Wend. 552, holding corporation incom-
petent to transact business on days other than those specified in charter;
Welland Canal Co. v. Hathaway, 8 Wend. 484, 24 Am. Dec. 55, holding
corporation not estopped to deny capacity to execute unauthorized con-
tracts; Safford v. Wyckoff, 4 Hill, 448, construing statute regulating
method of issuing bills of exchange by banks; Bard v. Chamberlain, 3
Sand. Ch. 33, holding that in action at law, corporation must allege
powers; see also dissenting opinion in Curtis v. Leavitt, 15 N. Y. 257, 270;
Crocker v. Whitney, 71 N. Y. 166, construing strictly provision in national
bank act, limiting amount of real estate to be held by bank ; State v. Rail-
road Co., Busbee's Law, 236, holding indictment against railroad corpora-
tion must allege powers and duties; Commissioners of Gallia County v,
Holcomb, 7 Ohio, 232, as to right of municipal corporation to bring action
not among those authorized by charter; Bank of Chillicothe v. Town of
Chillicothe, 7 Ohio (pt. H), 36, 80 Am. Dec. 187, where power to effect
public improvements held to include power to borrow money necessaiy for
such purpose; Bank of Chillicothe v. Swayne, 8 Ohio, 287, 82 Am. Dec.
715, holding violation of prohibition against usurious interest renders
contract void ; State v. Granville etc. Society, 11 Ohio, 12, holding express
words necessary to confer banking powers ; Overmyer's Lessee v. Williams,
15 Ohio, 31, as to power of railroad corporation to hold real estate; Straus
V. Insurance Co., 5 Ohio St. 62, as to limitations on investment of capital ;
Vanatta v. The Bank, 9 Ohio St. 34, as to method prescribed for dis-
counting notes ; Weckerley v. Lutheran Congregation, 3 RawllB, 181, holding
further as to liability of a corporation for acts of officers ; Fowler v. Scully,
72 Pa. St. 461, 18 Am. Rep. 702, construing section of national currency
act prescribing kind of securities on which banks might loan; Malone v.
Philadelphia, 147 Pa. St. 420, 23 Atl. 629, as to method of contracting for
public improvements; Boston etc. R. R. Co. v. New York etc. R. R. Co.,
13 R. I. 273, holding that power limited to performance of single act does
/\
189 HEAD V. PROVIDENCE INSURANCE CO. 2 Cr. 127^169
\
not exist after performance, of act ; Fergusoa v. Halsell, 47 Tex. 423^ hold-
ing void sale of county property at private sale, where statute provided
for public sale at auction in all cases ; Noel v. San Antonio, 11 Tex. Civ.
App. 585, 33 S. W. 266, holding bond issue invalid where provision not
made for payment of interest as required by statute; Hardware Co. v.
Manufacturing Co., 86 Tex. 150, 24 S. W. 17, holding void, deed executed
by insolvent corporation; Whitney v. Bank, 50 Vt. 400, 28 Am. Rep. 510,
holding that national bank has no power to execute contract of bailment, '^
and so is not liable for loss of property; Arnott v. Spokane, 6 Wash. St.
447, 33 Pac. 1065, as to method of contracting for public improvements;
Pennsylvania etc.^o. v. Board of Education, 20 W. Va. 365, and Exchange
Bank v. Lewis County, 28 W. Va. 287, on same point; Janesville Bridge
Co. V. Stoughton, 1 Pinn. 672, holding that grant of power to erect bridge
is not exclusive unless so expressed.
The principal case -is also cited in the following oases discussing the
general subject: Bank of United States v. Dandridge, 12 Wheat., 68,
6 L- Bd. 554; Hartford etc. R. R. Co. v. Kennedy, 12 Conn. 508; White v.
Howard, 38 Conn. 360; Gifford v. Livingston, 2 Denio, 395; Dousman v.
Milwaukee, 1 Pinn. 83; Mackey v. Mackey, 29 Gratt. 168.
Distinguished in Planters' Bank v. Sharp, 6 How. 322, 12 L. Ed. 456,
holding void statute prohibiting bank from transferring notes by indorse-
ment, charter having empowered bank to "hold and dispose of" property,
real and personal (but see dissenting opinion, p. 337, 12 L. £d. 462);
Hitchcock's Admr. v. Bank, 7 Ala. 434, where lijnitation as to rate of
interest to be charged in State of incorporation, held not to apply to con-
tract made elsewhere; Trimmier v. Bomar, 20 S*. C. 362, where provisions
regarding manner of holding elections held to be merely directory; Parker
V. Building & Loan Assn., 19 W. Va. 759, holding that where association
is authorized to loan to members only, it may enforce contract against one
who has acted as member, but never signed Constitution.
Modified in Campbell v. Mining Co., 51 Fed. Rep. 4, 7, holding mere
failure to exercise powers in manner prescribed renders acts voidable
only; German Iris. Co. v. City of Manning, 78 Fed. 902, holding city es-
topped from denying validity of bonds signed by officers riot authorized,
in absence of mandatory requirement as to signing; likewise in Market
Bank v. Smith, 16 Fed. Cas. 758, holding that charge of grater interest
than amount allowed by charter does not avoid entire contrirot; Wiley v.
Starbuck, 44 Ind. 310, 312, holding violation of provision regulating, rate of
interest does not render contract entirely void; Sam)om v. Insurance Co.,
16 Gray, 454, 77 Am. Dec. 421, holding that although charter requires
policies to be in writing, preliminary insurance may be effected by parol.
Limited in Bulkley v. Derby, 2 Conn. 256, where usage held to render
valid contracts not made pursuant to charter; so also in Warren v. Insur-
ance Co., 16 Me. 449, 450, 451, 33 Am. Dec. 678, 679, 680; Barnes v. Bank,
19 N. Y. 163, where bank held liable on note, although not executed in
accordance with banking law; Cincinnati v. Cameron, 33 Ohio St. 363,
holding rule not to apply to executed contracts, corporation having received
benefit.
2 Cr. 170-179 NOTES ON U. S. REPORTS. 190
Qualified in St. Joseph ete. Co. y. Globe etc. Co., 156 Ind. 676, 59 N. E,
999, upholding oral eontraet of corporation!
Delivery and acceptance o£ policies of insurance. Note, 188 Am. St.
Rep. ;89.
Miscellaneous. App^diz, 97 Me. 593, opinion of Supreme Court to
senate; State v. School Comm., 94 Md. 345, 51 Atl. 291, denying right of
action figainst board of education for personal injuries.
2 0r. 170-179, 2 L. Ed. 243, LITTLE r. BABBEME.
Ooniiniislon of illegal acts is notJnstifLed by anthorisatiUm or oomnMknd
of superior.
Approved in Philadelphia Co. v. Stimson, 223 U. S. 620, 66 L. Ed. 576,
32 Sup. Ct. 340, exemption of United States from suit does not preclude
actioit against Secretary of War wrongfully invading propertj' rights in
fixing harbor limits; McCreery Engineering Co. v. Massachusetts Fan Co.,
195 Fed. 507, 115 C. C. A. 408, exemption of State from suit does not pre-
clude holding county commissioners personally liable and enjoining inter-
ference with complainant's property rights in patent; O'Reilly De Camara
V. Brooke, 135 Fed. 387, military Governor of Cuba appointed pursuant to
treaty of Paris is liable for dan^ages caused by order abolishing franchise
to slaughter cattle in Havana; In re Cooper^ 143 U. S. 500, 36 L. Ed. 241,
12 Sup. Ct. 459, discussing cases on general subject; Belknap v. Schild, 161
U. S. 18, 40 L. Ed. 602, 16 Sup. Ct. 445, as to personal liability of the
officers of the United States for infringement of patent, although acting
under orders ; Hendricks v. Gonzalez, 67 Fed. 353, 35 U. S. App. 127, hold-
ing collector of customs not justified in refusing clearance papers, although
acting under instructions from Secretary of Treasury in so doing; Averill
V. Tucker, 2 Cr. C. C. 545, Fed. Cas. 670, holding treasurer of United States
to be public agent and not liable as such as garnishee of employee of gov-
ernment ; United States v. Bright, 24 Fed. Cas. 1238, holdihg militia officer
liable for interfering with arrest by United States marshal, although act«
ing Under orders from Governor; Christian County Court v. Rankin, 2
Denio, 504, 87 Am. Dec. 507, as to acts of Confederate soldiers in destroy-
ing public building; Hogue v. Penn, 3 Bush, 666, 96 Am. Dec. 276, holding
officer of St fte troops liable for trespass committed under orders ; Burke v.
Trevitt, 1 Mason, 102, Fed. Cas. 2163, discussing general subject; United
States v. One Hundred and Twenty-nine Packages, 27 Fed. Cas. 278, and
Thaver :v. Hedges, 22 Ind. 302, discussing subject of incidental powers of
Confess.
Distinguished in The Paquete Habana, 189 U. S. 465, 47 L. Ed. 903, 23
Sup. Ct. 594, .under facts decreeing against United States and not against
captors individually; Garlan^/v. Davis, 4 How. 149, 11 L. Ed. 915, holding
public agents not liable on contracts made for principals where no mis-
feasance shown; The Marianna Flora, 3 Mason, 123, Fed. Cas. 9080, in
proceedings against vessel, seizure having been lawful, but made through
mistake of fact; Mandeville v. Cofopendorfer, 3 Cr. C. C. 400, 401, Fad,
\
191 NOTES ON U. S. REPOETS. 2 Cr. 180-239
Cas. 9010, refusing to extend rule to i negligent act of agent where no mis-
feasance shown.
Remedy against government or its agents for infringement of patent^
rights. Note, 15 Aim. Gas. 1110.
Miscellaneous. Cited erroneously in State v. Cardinas, 47 Tex. 290. ,
2 Or. 180-185, 2 Lw Ed. 246, DUNLOP Y. BALL. ,
Payment presumed from lapse of time.
Approved in Cobb v. Houston, 117 Mo. App. 656, 94 S. W. 302, under act
providing that judgment presumed paid after twenty years, but that pre-
suinption may be repelled by written aipknowledgment or proof of part pay-
ment, absence from state does not prevent running of time in favor of
presumption; Lessee of Ransdale v. Grove, 4 McLean, 284, Fed. Cas. 11,570,
holding statute of limitations does not run against nonresident owners of
land claimed by lapse of time; Lynde v. Denison, 3 Conn. 392, as to in-
capacity of feme covert to sue on probate bond; Reddingtod v. Julian, 2
Ind. 225, holding further, presumption is rebuttable; McLellan v. Crofton,
6 Me. 334, where absence from country and poverty of debtor held not to
prevent operation of statute of limitations; Gxi^lick v. Loder, 13 N. J. L.
(1 Green L.) 73, 23 Am. Dec. 714, holding further as to pleading; Thorpe
V. Corwin, 20 N. J. L. 318, holding further, presumption is rebuttable ; Long
V. Clegg, 94 N. C. 768, where time intervening between death of testator
and administration of estate, held to be period of disability; dissenting
opinion in Summerville v. Holliday, 1 Watts, 521, on point that question of
sufficiency of disability is to be determined by court and not by jury;
Foulks v. Brown, 2 Watts, 215, holding that death of feme covert l^atee,
whose husband survived, and the fact that her estate was not administered
upon are not such facts as will repel presumption of payment of legacy;
Ext. of Palmer v. Admr. of Dubois, 1 Mill (S. C.) 180, holding that com-
mencement of suit afterward abandoned did not affect presumption; Heirs
of Marr v. Gilliam, 1 Cold. 502, discussing general subject.
Distinguished in Boardman v. De Forest, 5 Conn. 13, where discharge
in insolvency held not to create disability to recover on judgment rendered
after discharge; Shubrick v. Adams, 20 S. C. 56, holding currency of stat-
ute of limitations not interrupted by disability intervening after right of
action accrued.
Miscellaneous. Cited in Beverly v. Burke, 9 Ga. 447, 54 Am. Dec. 856,
on point that question of adverse possession is one for jury.
2 Cr. 187-239, 2 L. Bd. 249, OinmCH v. HOBBABT.
Seizure of vessel for attempt at illicit trade is not loss witliin policy con-
taining exception of risk of illicit trade.
Cited in Andrews v. Insurance Co., 3 Mason, 20, Fed. Cas. 374, holding
mere proceeding to port for purpose of illicit trade to be within such ex-
ception; Goicoechea v. Insurance Co., 6 Mart. (N. S.) 58, 17 AiL Dec. 178,
I
/
2 Cr. 187-239 NOTES ON U. S. REPORTS. 192
giving effect to exeeption of illicit trade, notwithstanding declaration in
policy that goods belong to country at war with that to which Vessel is
bound.
I
Seizure nnut b« Jostiflable in order to come within exception of risk of
ilUdt trade.
Cited in Carrington v. Insurance Co., 8 Pet. 617, 618, 623, 8 L. Ed. 1029,
1031, holding, ' however, that there need not be justifiable cause for con-
demnation; Graham v. InsAranCe Co., 2 Wash. 120, Fed. Cas. 6674, holding
that circumstances of seizure and illicit trade must concur; Higginson v.
Pomeroy, 11 Mass. 109, 112, holding further that terms of prohibitory law
govern construction of excepting clause; Francis v. Insurance Co., 6 Cow.
424, 427, holding burden of proof on insurance company to show seizure
authorized ; Smith v. Insurance Co., 3 Serg. & R. 84, holding seizure result-
ing from ignorance of prohibition not within exception; Fandel v. Insur-
ance Co., 4 Serg. & R. 69, holding that ta bring seizure within exception
it must appear in sentence that goods were condemned for violation of pro-
hibition ; Thompson v. Insurance Co., 2 La. 238, discussing general subject
and defining "illicit trade." ,
■
Iiimit of joxladiction on high seas is not fixed, but extends at least to
distance of "cannon shot."
Cited in The Brig Ann, 1 Gall. 63, Fed. Cas. 397, construing embargo
f^ct ; The Kodiak, 63 Fed. 128, where jurisdiction held to extend over waters
-between headlands of an inlet ; The Alexander, 60 Fed. 918, to same effect ;
The Coquitlam, 67 Fed. 710, 716, where jurisdiction held to extend thirty
miles from coast; CucuUu v. Insurance Co., 6 Mart. (N. S.) 481, 482, 16
Am. Dec. 207, 208, and Francis v. Insurance Co., 6 Cow. 426, under facts
similar to principal case; Mahler v. Norwich, 36 N. Y. 366, as to jurisdic-
tion of State court over case of collision in sound, included within limits
of State ; United |H;ates v. New Bedford Bridge, 1 Wood. & M. 488, Fed.
Cas, 16,867, discussing general subject.
Seizure of vessels outside territorial jurisdiction for violation of
municipal law. Note, S Ann. Cas. 811.
Jurisdiction over sea. Note, 46 L. R. A. 266.
Foreign laws and judgments must be proved before th^ can be received
in court of Jiistice.
Approved in Nashua Savings Bank v. Anglo-American Co., 189 U. S.
228, 47 L. Ed. 785, 23 Sup. Ct. 617, holding British statutes governing
stockholders' liability sufficiently authenticated by testimony of English
solicitor; United States v. Lew Poy Dew, 119 Fed. 789, holding United
States commissioner's certificate that Chinese had right to remain is mere
recital of judgment rendered at hearing ; Nashua Sav. Bank v. Anglo- Am.
Land Mort. etc. Co., 108 Fed. 766, holding statutes governing stockholders'
liability suflBciently authenticated by testimony of English solicitor; Win-
ter V. Latour, 36 App. D. C. 419, priority of filing of patent by French in-
ventor not lief eated by contention that French law did not meet require-
193 CHURCH V. HUBBART. 2 Cr. 187-239
ment of United States statute when French law not in evidence nor of
record; f^nnis v. Smith, 14 How. 427, 14 L. Ed. 484, holding copy of La.
Code Civil indorsed, **Les garde des Sceaux de France a la Cour Supreme
des Etats Unis," competent evidence to prove rule of descent; Hanley v.
Donoghne, 116 U. S. 4, 29 L. Ed. 536, 6 Sup. Ct. 244, holding allegation in
declaration as to effect of foreign law, to be allegation of fact admitted by
demurrer; Liverpool etc. Co. v. Insurance Co., 129 U.S. 445, 32 L. Ed. 793,
9 Sup. Ct. 473, as to carrier's liability under contracts made in Great
Britain; United States v. Wilson, 1 Bald. 91, Fed. Cas. 16,730, holding
pardon granted by Governor of State under great seal evidence per se of
fact of pardon ; Edison etc.~Co. v. Electric etc. Co., 60 Fed. 403, holding in-
admissible, certificate of grant of patent by Russian government in absence
of signature and seal of superior office of government ; In re Metzger, 17
Fed. Cas. 237, as to authentication of depositions; Smith v. Zane, 4 Ala.
104, holding admissible as evidence, transcript of record of births and mar-
riages signed and sealed by keeper of records and certified to be true copy ;
McNeil V. Arnold, 17 Ark. 166, as to proof of statutes of sister States ;
Griswold V. Pitcairn, 2 Conn. 90, holding admissible, judgment authenti-
cated by public seal of Denmark ; Dyer v. Smith, 12 Conn. 390, as to stat-
utes of sister States ; State v. Crawford, 28 Fla. 492, 10 South. 124, as to
importance of national seal in authenticating commissions; Franklin v.
Twogood, 25 Iowa, 528, 96 Am. Dec 78, holding, however, that one State is
not bound by construction of common-law rule by another State as to con-
tract made in latter; Canne v, Sagory, 4 Mart. (0. S.) 87, as to protest of
foreign bills of exchange, and in Las Caygas v. Larionda's Syndics., 4 Mart.
(0. S.) 285, on same point; Woolsey v. Paulding, 9 Mart. (0. S.) 294, as
to authentication of depositions ; Isabella v. Pecot, 2 La. Ann. 391, holding
that unwritten law may be proved by parol evidence; Levy v. Merrill, 4
Me. 190, as to foreign law providing for arrest of debtor on civil process;
Corrie's Case, 2 Bland Ch. 508, as to authentication of appointment as
sraardian ; Kline v. Baker, 99 Mass. 255, holding further that when evi-
dence of foreign law consists entirely of judicial opinion, question of its
construction and effect is for the court; People v. Lambert, 5 Mich. 360, 72
Am. Dec. 61, as to proof of statute of sister States; Gunn v. Peakes, 36
Minn. 179, 1 Am. St. Rep. 662, as to proof of foreign judgments generally;
Martin v. Martin, 1 Smedes & M. 177, as to laws regulating rate of in-
terest; Stewart v. Swanzy, 23 Miss. 505, as to authentication of will exe-
cuted in another State ; Karr v. Jackson, 28 Mo. 318, as to proof of record
of association of persons for purpose of establishing bank; Dunlap v.
Waldo, 6 N. H. 453, as to authentication of depositions; Mahurin v. Bick-
ford, 6 N. H. 570, as to proof of judgments rendered in courts of sister
States; Beach v. Workman, 20 N. H. 382, holding inadmissible, a gazette
purporting to contain copies of foreign laws ; Watson v. Walker, 23 N". H.
496, holding that to prove unwritten laws, witness must have special knowl-
edge of them; Pickard v. Bailey, 26 N. H. 167, and Hali v. Costello, 48
N. H. 179, 2 Am. Bep. 209, holding further that evidence of foreign laws
fihoold be addressed to court and not to jury; Emery v. Berry, 28 N. H.
1—18
2 Cr ,187-239 NOTES ON U. S. REPORTS. 194
485, 61 Am. Dec. 626, holding that statute law eannot be proved by parol
evidence; Hutchins v. Gerrish, 52 N. H. 207, 13 Am. Bep. 21, where record
of conviction for larceny, improperly authenticated, held inadmissible as
evidence to impeach witness; Francis v. Insurance Co., 6 Cow. 428, 429,
as to laws of Great Britain, relating to seizures for illicit trading; Chan-
oine V. Fowler, 3 Wend. 177, holding that commercial code of France could
not be proved by production of book admitted to be conformable to official
edition xmblished by government; Hill v. Packard, 6 Wend. 389, on same
point; Lincoln v. Battelle, 6 Wend. 482, holding that statute law cannot
be proved by parol evidence; Hosford v. Nichols, 1 Paige Ch. 226, as to
foreign laws relating to mortgages; Dougherty v. Snyder, 16 Seig. & R.
87, 16 Am. Dec. 524, holding that registered edict must be proved by copy
properly authenticated ; Phillips v. Gregg, 10 Watts, 169, 36 Am. Dec. 161,
162, affirming principle that best evidence must be produced; Phillips v.
Lyons, 1 Tex. 394, holding that great seal of State affixed to record does
not import verity per se; State v. Cardinas, 47 Tex. 290, holding inadmis-
sible copy of a copy of grant ; Williams v. Conger, 49 Tex. 601, as to proof
of power of attorney; Tunstall v. Pollard, 11 Leigh (Va.), 28, as to proof
of appointment as executor; Elliott v. Ray, 2 Blackf. 31, discussing sub-
ject of State statutes; Wilson v. Robertson, 1 Overt. 269, discussing gen-
eral subject; Loree v. Abner, 57 Fed. 164, 6 U. S. App. 649, to point that
Federal courts will take judicial notice of laws of several States; Forsyth
V. Vehmeyer, 176 111. 362, 52 N. E. 56, arguendo.
Distinguished in Hite v. Keene, 149 Wis. 216, Ann. Gas. 1913D, 251, 134
N. W. 386, where evidence of Swiss statute before court is parol testimony
of Swiss lawyers, as experts, jury, not court, construes law; Schroecken v.
Swift etc. Co., 19 Blatchf. 210, 7 Fed. 471, under statute; Thompson v.
Stewart, 3 Conn. 182, 3 Am. Dec. 171, holding that seal of Court of Ad-
miralty proves itself; Adams v. Way, 33 Conn. 429, and Williams v.
Wilkes, 14 Pa. St. 230, holding that Federal courts are domestic courts
for purposes of proof of records in State courts; Snyder v. Wise, 10 Pa.
St. 160, holding judgment, of justice of peace not to be within meaning of
act of Congress directing mode of authenticating records.
Limited in Barrows v. Downs, 9 R. I. 449, 11 Am. Rep. 285, holding parol
evidence of expert admissible to prove foreign written law.
Proof and evidence of foreign laws and their effect. Note, 113 Am.
St. Bep. 881, 882.
Admissibility of printed copy of statutes to prove law of another ju-
risdiction. Note, Ami. Gas. 1916D, 858.
Oral proof of foreign laws. Note, 25 L. R. A. 449, 450, 452, 454.
Authentication of foreign law is not oonsular function.
Cited in Stein v. Bowman, 13 Pet. 218, 10 L. £d. 134, holding insufiQcient
authentication by minister resident from Great Britain; Levy v. Burley,
2 Sumn. 359, Fed. Cas. 8300, holding consular certificate of any fact not to
be evidence between third parties; The Alice, 12 Fed. 925, as to copy of
bill of lading certified by consul; Stein v. Stein's Curator, 9 La. 281, as to
195 MASON V. SHIP BLAIREAU. 2 Cr. 240-271
attestation of signatures of public functionaries; Sioux City etc. R. R. v.
Washington Co., 3 Neb. 42, holding that county board of equalization act-
ing under special authority can exercise only powers expressly granted.
Limited in State v. Behrman, 114 N. C. 805, 19 S. E. 223, holding certifi-
cate of marriage attested by consul, admissible in corroboration.
Jurisdiction and powers of consuls. Note, 45 L. R. A. 497.
Submission to Jury of inadmissible evidence of material fact is ground
for new trial and court cannot consider tlie soilLciency.
Approved in Forsyth v. Wehmeyer, 176 111. 362, 52 N. E. 56, holding evi-
dence of existence of judgment record sufficiently proved; State v. Smith,
164 N. C. 480, 79 S. E. 981, in divorce action for wife, admission of aban-
donment in answer in previous action begun by wife not material fact
prejudicial to defendant; Smith v. Carrington, 4 Cr. 72, 2 L. Ed. 553, as to
admission of improved copy ; Luty v. Purdy, 2 Overt. 165, as to erroneous
charge upon a material point ; Washburn v. Tracy, 2 D. Chip. 136, 15 Am.
Dec 663, as to refusal to charge jury on a material point.
Distinguished in Eaiapp v. McBride, 7 Ala. 30, holding mere omission to
charge jury upon material point not ground for reversal. Limited in Well-
bom V. Carr, 1 Tex. 469, holding admission of such evidence as to point
not traversed not to be ground for reversal.
Rules for interpretation of written instruments. Note, ^14 £. B. 0.
664.
2 Cr. 240-271, 2 I.. Ed. 266, MASOK T. SHIP BIATKBAV.
No po6itiT6 role governs rate of salvage; In fixing It^ common usages of
commercial nations tfioold be regarded.
Approved in The Lyman M. Law, 122 Fed. 822, awarding twelve thou-
sand dollars as salvage for rescue of abandoned coal schooner; The Thomas
L. James, 116 Fed. 670, fixing salvage for rescuing stranded lumber
schooner; United States v. Morgan, 90 Fed. 572, upholding twelve hundred
dollars for salvage service to government lightship; The Connemara, 108
U. S. 369, 27 L. Ed. 753, 2 Sup. Ct. 758, and Tyson v. Prior, 1 Gall.
135, Fed. Cas. 14,319, holding amount to be in discretion of court; Rowe
V. Brig , 1 Mason, 377, Fed. Cas. 12,093, and Bond v. The Cora, 2
Pet. Adm. 376, 2 Wash. C. C. 82, Fed. Cas. 1621, holding rate to be gov-
erned by circumstances; The Fannie Brown, 30 Fed. 221, holding, how-
ever, amount not measured by risk to salvor; Gaynor v. The Gler, 31 Fed.
426, holding tugboat entitled to salvage although city fire engines greater
service ; Bay of Naples, 48 Fed. 739, 1 U. S. App. 47, readjusting amount
awarded in lower court ; The Waterloo, Blatchf . & H. 127, Fed. Cas. 17,257,
under similar acts; Taylor v. The Cato, 1 Pet. Adm. 60, 63, 66, Fed. Cas.
13,786, holding dominant consideration to be benefit accruing to owners of
property saved; Hand v. Elvira, Gilp. 73, Fed. Cas. 6015, allowing two-
fifths of property saved ; Cape Fear etc. Co. v. Pearsall, 90 Fed. 438, hold-
ing that apportionment of salvage between owners and crew is to be gov-
2 Cr. 240-271 NOTES ON U. S. REPORTS. 196
emed by circumstances; The Alabamian, 1 Fed. Cas. 284, holding further
that salvors of cargo only cannot claim as salvors of ship; The Huntress,
12 Fed. Cas. 981, allowing one-fourth of value of vessel and cargo ; Pent
V. The Ocean Belle, 19 Fed. Cas. 201, and Walter v. The Montgomery, 29
Fed. Cas. 115, where rate held to be governed by circumstances; The San-
dringham, 5 Hughes, 334, 10 Fed. 571, discussing general subject.
Limited in The Brixham, 54 Fed. 541, allowing no salvage to cargo, as
such, of saving vesssel ; The Dupuy de Lome, 55 Fed. 96, 97, holding ship-
per not entitled to salvage, unless he was on board and cpnsented to devia-
tion.
Right to claim for salvage. Note, 24 E. E. 0. 527, 528.
Owner of saviiig veiBel 1b entitled to Uiare of salvage In amount awarded.
Qne-tlilid allowed.
Approved in Cape Fear Towing, etc.. Transportation Co. v. Pear-
sail, 90 Fed. 438, holding that there is no true rule governing division
of salvage between owner and crew; Sewell v. Nine Bales of Cotton,
21 Fed. Cas. 1108 , The Camanche, 8 Wall. 473, 19 L. Ed. 403, follow-
ing rule; The Saragossa, 1 Ben. 559, Fed. Cas. 12,335, but allowing one-
half in case of steamship; Waterbury v. Myrick, Blatchf. & H. 44, Fed.
Cas. 17,253, basing right on risk incurred ; The Galaxy, Blatchf. & H. 274,
Fed. Cas. 5186, but allowing only one-fourth; and in The C. W. Ring, 2
Hughes, 102, 103, Fed. Cas. 3525, allowing. three-fifths; The Charles, Newb.
334, 339, Fed. Cas. 4556 , The T. P. Leathers, Newb. 421, Fed. Cas. 9736 ,
Bond V. The Cora, 2 Pet. Adm. 382, Fed. Cas. 1621, The Henry Eubank, 1
Sumn. 426, 427, Fed. Cas. 6376 , The Nathaniel Harper, 3 Sumn. 577, Fed.
Cas. 10,032, holding right not affected by fact that vessel is sailing under
charter-party; The Pomona, 37 Fed. 816, allowing four-fifths to owners.
Distinguished in The Persian Monarch, 23 Fed. 822, 823, 824, allowing
no share to owner where consent not given to deviation.
Rights as to things produced by labor of employee. Note, 5 L. B. A.
(N. S.) 1160.
Embezdement on part of salvor works forfeiture of Ills sbare.
Approved in Flinn v. The Leander, Bee, 262, Fed. Cas. 4870, as to con-
cealment of part of property; Cromwell v. Island City, 1 Cliff. 229, Fed.
Cas. 3410, on same point; The Schooner Boston, 1 Sumn. 339,' 340, Fed.
Cas. 1673, as to embezzlement while vessel in port; The Albany, 44 Fed.
.434, decreeing forfeiture of owner's share for embezzlement by crew; The
Missouri's Cargo, 1 Sprague, 270, Fed. Cas. 9654, holding, however, that
embezzlement by master does not affect rights of crew ; Lewis v. The Eliza-
beth and Jane, 1 Ware, 43, Fed. Cas. 8321, where gross negligence held
ground for forfeiture. Cited in The Rising Sun, 1 Ware, 381, Fed. Cas.
11,858, holding, however, innocent, salvors not affected by embezzlement;
American Ins. Co. v. Johnson, Blatchf. & H. 29, Fed. Cas. 303, decreeing
forfeiture for neglect of salvor to inform master of wrecked vessel of im-
minent danger, known only to former; Alexander v. Gallway, Abb. Adm.
197 MASON V. SHIP BLAIRE AU. 2 Cr. 240-271
262, Fed. Cas; 167^ holding seaman's wages forfeited by embezzlement of
part of cai^o; Breevoor v. The Fair American, 1 Pet. Adm. 99, Fed. Cas.
1847; The Sumner's Apparel, Brown Adm. 54, Fe^. Cas. 13,608, on general
subject; The Florence, 9 Fed. Cas. 296, as to forfeiture of seaman's wages;
followed in The Mulhouse, 17 Fed. Cas. 966 ; Roberts v. The St. James, 20
Fed. Cas. 928, holding further that it is discretionary with coui-t to deter-
mine what interest shall be benefited by forfeiture ; Williams ▼. Waterman,
29 Fed. Cas. 1417, as to forfeiture of seaman's wages, holding, however,
that embezzlement works forfeiture only to value of property taken.
Sbare of apprentice belongs to him and not to master.
Rule applied in Waterbury v. Myrick, Blatchf . & H. 43, Fed. Cas. 17,253 ;
Bell y. The Ann, 2 Pet. Adm. 282, Fed. Cas. 1245; The Wave, Blatchf. &
H. 263, Fed. Cas. 17,297. Approved in Ex parte Steiner, 22 Fed. Cas. 1234,
enforcing agreement of master to pay apprentice for overwork; Gale v.
Parrbtt, 1 N. H. 30, 32, 33, as to minor's share in prize money, holding
further that it cannot be recovered by parents from master; Browning, v.
Baker, 2 Hughes, 41, Fed. Cas. 2041, enumerating classes entitled to sal-
vage.
Distinguished in Bailey v. King, 1 Whart. 114, 29 Am. Dec. 44, denying
right of apprentice to recover from master for extra services performed
during apprenticeship.
Maziner of veiBel saved, left on board when veBsel deserted by officers
and crew, and who did salvage service is entitled to share in compensation.
Approved in The Eliza Lines, 199 U. S. 127, 50 L. Ed. 119, 26 Sup. Ct. S,
abandonment of vessel entitles cargo owners to refuse to go on with voyage
where master has not obtained vessel from salvors before cargo owncis
have announced decision; Hobart v. Drogan, 10 Pet. 122, 9 L. Ed. 363;
The Centurion, 1 Ware, 482, Fed. Cas. 2554, and The Wave, Blatchf. &
H. 243, Fed. Cas. 17,297, holding that pilot, having discharged duty as
such, is entitled to salvage for saving vessel subsequently deserted; The
Two Catherines, 2 Mason, 335, Fed. Cas. 14,288, and The Massasoit, 1
Sprague, 98, Fed. Cas. 9260, where seamen allowed salvage to amount of
wages, when not entitled otherwise because of failure of freight; The
Wave v. Hyer, 2 Paine, 140, Fed. Cas. 17,30(5, holding seamen discharged
by such circumstances from contract of mariner; The Triumph, 1 Sprague,
430, 431, Fed. Cas. 14,183, and The Umatilla, 12 Sawy. 178, 29 Fed. 259,
under facts similar to principal case; The Acorn, 3 Ware, 98, Fed. Cas.
10,252, holding seamen entitled to salvage, although after desertion by
most of crew they left vessel, returning the following day; The Aguan, 48
Fed. 322, holding seamen entitled to salvage when vessel wrecked and
voyage broken up. Cited generally on this point in The John Perkins, 13
Fed. Cas. 704.
Distinguished in The Comet, 205 Fed. 992, fishermen towing to safety
helpless schooner, upon which employed not entitled to salvage, since ves-
sel not abandoned ; The C. P. Minch, 61 Fed. 512, refusing remaining sail-
ors salvage on ground that danger was not extreme; Phillips v. McCall,
2 Cr. 240-271 NOTES ON U. S. REPcCrTS. 198
4 Wash. 147, Fed. Cas. 11,104, holding seamen on vessel taken as prize not
entitled to salvage for retaking; The Olive Branch, 1 Low. 287, Fed. Cas.
10,490, holding seamen, not discharged by desertion of master alone; The
C. P. Minch, 73 Fed. 862, 38 U. S. App. 536, holding that- abandonment by
rest of crew must be final ; The Nebraska, 75 Fed. 600, 24 U. S. App. 559,
holding that detention of vessel in civil fituit does not discharge master, and
entitle him to salvage for saving vessel while in marshal's custody; The
D. M. Hall V. The John Land, 7 Fed. Cas. 775, holding that transfer of
crew of vessel in peril to another vessel, pursuant to agreement between
masters, does not discharge crew.
Rights of seamen as salvors. Note, 64 Ii. B. A. 198, 199.
Admiralty courts of TTnited States have Jurisdiction of case of salvage of
one foreign vessel by offlcen and crew of aootber.
Approved in Bradbury v. Chicago etc. Ry. Co., 149 Iowa, 59, 40 L. R. A.
(N. S.) 684, 128 N. W. 4, plaintiff employed by carrier in interstate com-
merce allowed to recover in State court under Federal statute for injury
due to negligence of employee ; Disconto Gesellschaf t v. Umbreit, 127 Wis.
660, 106 N. W. 823, where German corporation obtained judgment in Wis-
consin against nonresident alien, on cause of action accruing in Germany,
corporation could not impound, by ancillary remedies in Wisconsin, prop-
erty of debtor there, as against Wisconsin creditor whose cause of action
subsequently accrued; The Belgenland, 114 U. S. 363, 29 L. Ed. 155, 5
Sup. Ct. 863, as to collisions between foreign vessels on high seas; The
Adolph, 1 Curt. 89, Fed. Cas. 86, ordering marshal to pay salvage money
into court at instance of French consul; The Jerusalem, 2 QsXL, 199, Fed.
Cas. 7293, entertaining suit to enforce bottomry bond executed in foreign
country between subjects of foreign country, vessel being in United States
territory; The Tilton, 5 Mason, 471, Fed. Cas. 14,054, ordering sale of
wrecked ship upon ajsplication of master; One Hundred and Ninety-four
Shawls, Abb. Adm. 322, Fed. Cas. 10,521, holding, however, jurisdiction
to be in discretion of court, and not compulsory; Fisher v. Rutherford,
1 Bald. 193, Fed. Cas. 4823, sustaining jurisdiction where no objection
made; in Barrell v. Benjamin, 15 Mass. 357, sustaining an action, on con-
tract made in foreign country, against foreigner temporarily within juris-
diction of State courts; Cofrode v. Circuit Judge, 79 Mich. 340, 44 N. W.
625, holding consent sufficient to give jurisdiction over persons in action
on contract.
Distinguished in Piquignat v. Railway Co., 16 How. 106, 14 Ii. Ed. 864,
where it did not affirmatively appear that defendant was an alien.
Nonresident's right to sue foreign corporation. Note, 70 L. B. A. 538.
Miscellaneous. Cited in The Waterloo, Blatchf. & H. 122, Fed. Cas.
17,257, on point not arising in principal case. S0| also, in Gourdin v.
West, 11 Rich. 296, as to right of owner of slave to salvage earned by
latter. Also in Dabney v. Insurance Co., 14 Allen, 318, on point that
underwriter is not discharged by deviation to assist vessel in distress.
199 OGDEN V. BLACKLEDGE. 2 Cr. 272-279
EiToneonsly cited in Scott v. Jones, 5 How. 374, 12 L. Ed. ^6, and Luther
▼. Borden, 7 How. 67, 12 L. Ed. 605. See, also, Thatcher v. McCuUoch,
01c 371, Fed. Cas. 13,862, citing note to principal case aa to what con-
stitutes deviation.
2 Cr. 272-279, 2 K Ed. 276, OGDEN T. VLACKJ^El
B^pealed statute not affected hj snbseqnent statute dMlaring repeal Ino]^
eiatlTe, so far as cases pxlor to last statute are concerns.
Approved in dissenting opinion in Milton v. Pace, 85 S. C. 379, 67 S. E.
460, majority holding that execution of trust in life tenant by Constitution
of 1868 did not suspend operation of statute of limitations, as to remainder-
men, commencing to run against trustee in 1866; Maryland v. Todd, 1 Biss.
71, Fed. Gas. 9220, holding right to sue barred under statute, not revived by
subsequent statute; Tinker v. Van Dyke, 1 Flipp. 534, Fed. Cas. 14,058,
construing bankrupt act; Boyce v. Holmes, 2 Ala. 56, holding statute not
to act retrospectively; Dockery v. McDowell, 40 Ala. 481, 482, holding stat-
ute inoperative to impair vested right; Thome v. San Francisco, 4 Cal.
136, holding statute not retrospective when not expressly declared so;
Perkins v. Perkins, 7 Conn. 564, 566, 18 Am. Dec. 123, 126, as to statute pro-
viding for appeal in certain oases; Forsyth v. Marbury, Charlt. (Ga.) 334,
holding that statute of limitations, to be operative, must allow time in
fnturo to commence, action; Wilder v. Lumpkin, 4 Ga. 219, holding act
requiring security on appeal and injunction inapplicable to cases pending
at time of passage; Lewis v. Brackenridge, 1 Blackf. 222, 12 Am. Dec. 230,
declaring retrospective statute unconstitutional and void; McKinncy v.
Springer, 8 Blackf. 507, 46 Am. Dec. 496, as to statute reviving action
barred by statute; White v. Brown, 3 Mart. (N. S.) 20, as to statute regu-
lating execution of notes ; State v. Reed,^ 31 N. J. L. 135, distinguishing
between ex post facto and retroactive laws, and holding that in latter
retroactive intention must be expressed; Dash v. Van Kleeck, 7 Johns.
490, 498, 507, 5 Am. Dec. 299, 304, 312, where sheriff held liable for escape
occurring before passage of act removing such liability; Nichols v. Poul-
8on, 6 Ohio, 309, holding contract invalid when made, not revived by repeal
of statute under which it was invalidated; Bedford v. Shilling, 4 Serg.
ft R. 403, 411, 8 Am. Dec. 719, where statute prohibiting certain suits
held not to apply to suits already pending; Girdner v. Stephens, 1 Heisk.
285, 2 Am. Bep. 703, as to inability of legislature to divest right under
statute of limitations ; Vanderpoql v. La Crosse etc. R. R. Co., 44 Wis. 668,
holding necessary expression of intention that statute shall act retrospec-
tively; Fisher v. Cockerill, 5 T. B. Mon. 135, where authorities collected*
and discussed; dissenting opinion in Cunningham v. Dixon, 1 Marv. (Del.)
170, 41 Atl. 522.
Distinguished in Jackson Hill Coal & Coke Co. v. Board of Commis-
sioners, 181 Ind. 340, 104 N. E. 498, action for recovery of taxes improp-
erly paid revived by repeal of statute of limitations after period had
elapsed to bar recovery; Goshen v. Stonington, 4 Conn. 223, 10 Am. Dec.
2 Cr. 280-336 NOTES ON U. S. REPORTS. 200
127> enforcing statute expressly declared to be retrospective; Ex parte
Quarrier, 4 W. Va. 212, continuing an act requiring attorneys at law to
take oath before being allowed to practice, and enforcing it as to attorney
previously admitted. Denied in Smith v. Hickman, Cooke,' 336.
Construction of statutes is not a function of legldature.
Approved in Rodwell v. Harrison, 132 N. C. 49, 43 S. E. 641, construing
municipal election laws of 1893 ; State v. Harden, 62 W. Vft. 351, 58 S. E.
731, legislature, in giving municipal council power to grant liquor licenses,
no authority to determine validity of previous amendment to town charter;
Koshkonong v. Burton, 104 U. S. 678, 26 L. Ed. 890, holding court bound
to disregard erroneous construction; United States v. Chong Sam, 47 Fed.
886, as to construction of terms in Chinese exclusion acts; In re Lands-
berg, 14 Fed. Cas. 1068, as to revenue acts ; in Jones v. Wootten, 1 Harr.
81, holding legislature incompetent to declare what the law has been;
State V. Dews, Charlt. (Ga.) 400, distinguishing between legislative and
judicial power; Wilder v. Lumpkin, 4 Ga. 214, as to provisions in statute
repealing statute requiring security on appeal; Rockhold v. Canton etc.
Society, 129 111. 461, 21 N. E. 797, holding legislative construction of act
relating to powers of corporations not binding on courts; Merrill v. Sher-
burne, 1 N. H. 204, 8 Am. Dec. 56, holding act of legislature granting
new trial unconstitutional; People v. Supervisors of New York, 16 N. Y.
432, as to act declaratory of intention of legislature in prior act regulating
taxation; Respublica v. McClean, 4 Yeates, 406, as to act declaratory of
judicial powers under State Constitution; Eakin v. Raub, 12 Serg. & R.
360, as to power of court to declare legislative acts unconstitutional.
Distinguished in Satterlee v. Matthewson, 2 Pet. 413, 7 L. Ed. 469,
holding statute judicial in its nature not to be repugnant to Constitution.
Miscellaneous. Cited in Brown v. Hiatt, 1 Dill. 386, Fed. Cas. 2011,
and Caldwell v. Southern Express Co., 1 Flipp. 90, Fed. Cas. 2303, to
point that war suspends operation of statute of limitations [point not
in issue in principal case] ; Bender v. Crawford, 33 Tex. 751, s. c, 7 Am.
Bep. 272, to point that retrospective laws are obligatory unless forbidden
by State Constitutions.
2 Cr. 280-336, 2 I*. Ed. 279, McILVAINE ▼. GOZE'8 LBB8EE.
(See 4 Or. 209, 2 I*. Ed. 598.)
States of Union became entitled on July 4, 1776, to rights and powers of
sovereign States, so far as respects their internal regulations.
Cited in United States v. New Bedford Bridge, 1 Wood. & M. 431, Fed.
Cas. 15,867, in discussing subject of powers of Federal government.
Where State asserted right to allegiance of all persons bom, and at that
time residing within State, act of sucA person in afterward leaving and adher-
ing to crown did not render him an alien.
Approved in Jones v. McMasters, 20 How. 20, 15 L. Ed. 810, holding
burden of proof on party asserting change of allegiance; Brooks v. Clay,
201 ADAMS V. WOODS. 2 Cr. 33^342
3 A. K. Mareli. 550, s. c, 1 Litt. (Ky.) 266, holding expatriation not to
deprive owner of property previously Acquired; Lessee of Jackson v.
Bums, 3 Binn. 86, holding British subject, resident in Pennsylvania before
Declaration of Independence, incapable of taking land by descent.
Distinguished in Hebron v. Colchester, 5 Day, 173, where British subject
coming to this country prior to 1775 was held to have become legally
settled by purchase of lands after treaty of peace.
•
Miscellaneous. Cited in, but not in point, Andrews v. Fenter, 1 Ark.
197; Biggers v. Pace, 6 Ga. 176; State v. LaugUlin, 10 Mo. App. 2.
2 Or. 336-342, 2 li. Ed. 297, ADAMS v. WOODS.
<)iii tarn action founded on act prohibiting slave trade is barrefd by lapse
of time, under act limiting prosecution under penal statutes.
Approved in Williams v. Wells Fargo & Co. Express, 177 Fed. 355, 21
Ann. Gas. 699, 35 L. B. A. (N. S.) 1034, 101 C. C. A. 328, action for penalty,
one-half to informer, cannot be brought in name of informer where stat-
ute expressly commands bringing of action in name of United States;
Carter. V. New Orleans etc. R. Co., 143 Fed. 101, action against carrier
for damages for unlawful discrimination is governed by Rev. Stats., § 1047,
and is barred in five years; Htintii^on v. Attrill, 146 U. S. 673, 36 L. Ed.
1180, 13 Sup. Ct. 230, as to penalty for falsifying certificate of amount of
capital stock; Campbell v. Haverhill, 155 U. S. 616, 39 L, Ed. 282, 15
Sap. Ct. 220, as to actions for infringement of letters patent; United
States V. Mayo, 1 Gall. 397, Fed. Cas. 15,755, as to forfeiture under em-
bargo act; in Johnson v. United States, 3 McLean, 89, Fed. Cas. 7418, hold-
ing statute limiting prosecutions to apply to offenses under subsequent
statutes, so also in United States v. Ballard, 3 McLean, 470, Fed. Cas.
14,507; United States v. Dustin, 25 Fed. Cas. 946, and United States v.
Piatt, 27 Fed. Cas. 549, under similar acts; United States v. Shorey, 27
Fed. Cas. 1072, as to prosecution under indictment for violation -of revenue
laws; Johnson v. Hughes, 1 Stew. 265, as to penalty for failure to keep
cdtton gin inclosed; Western Union Tel. Co. v. Nunnally, 86 Ga, 505, 12
S. E. 579, as to penalty for failure of telegraph company to deliver dis-
patch; Davidson v. Missouri Pac. Ry., 3 Tex. App. Civ. 217, as to penalty
for overcharge on freight.
Distinguished in United States v. Tithing Yard, 9 Utah, 277, 34 Pac. 56,
under facts.
Action of debt lies for recovery of penalty or forfeiture.
Approved in United States v. Stevenson, 215 U. S. 198, 54 L. Ed. 167,
30 Sup. Ct. 35, statute making it misdemeanor to assist importation of
contract laborers under penalty recoverable in action of debt does not
prohibit indictment; Waters-Pierce Oil Co. v. State, 48 Tex. Civ. 185,
106 S. W. 929, statute of limitations barring recovery in criminal action
does not prevent action of debt for recovery of penalties imposed by
anti-trust law; Ex parte Marguand, 2 Gall. 554, Fed. Cas. 9100, as to
2 Cr. 342-344 NOTES ON U. S. REPORTS. 202
fine for impeding customs officers; United States y. Elliott, 25 Fed. Cas.
1266, holding further that declaration must state precise sum demanded;
State V. Desporges, 5 Rob. (La.) 259, as to suit on recognizance; State
V. Williams, 7 Rob. (La.) 267, where indictment held not to lie, if stat-
ute provides penalty ; Scarborough v. Judges, 43 La. Ann. 1167, 10 South.
255, holding procedure civil and not criminal in nature within sense of
articles of the Constitution relative to appellate jurisdiction; State v.
Baker, 47 Miss. 95, holding debt to be the only appropriate remedy;
Morrison v. Bedell, 22 N. H. 239, holding that action for penalty for
cutting of trees cannot be joined with action of trespass; and in David-
son V. Missouri Pac. Ry., 3 Tex. App. Civ. 217, holding debt to be proper
remedy when no other mentioned in statute; United States v. Stocking,
87 Fed. 860, 861, United States v. Gates, 25 Fed. Cas. 1266, United
States V. Chapel, 25 Fed. Cas. 397, discussing general subject.
Distinguished in United States v. Brown, 2 Low, 268, Fed. Cas. 14,665,
holding prosecution for crime punishable by imprisonment not to be
within meaning of act limiting prosecutions for penalties; dissenting
opinion in State v. Williams, 7 Rob. (La.) 274, majority holding indict-
ment did not lie if statute provides penalty.
General ezpreesions In statute eonstmecL as inclnslTe of everytliing within
scope, unless restrained by wxirds sbowlng ns^ in particular sense.
Approved in Gompers v. United States, 233 U. S. 612, Ann. Oas. 1915D,
1044, 68 L. Ed. 1120, 34 Sup. Ct. 693, proceedings for contempt in violat-
ing injunction is barred by statute of limitations requiring prosecution
of o^enses not capital within three years; United States v. Debs, 64
Fed 749; construing a statute prohibiting conspiracies in restraint of
trade; dissenting opinion in Gulliver v. Roelle, 100 111. 181, as to con-
struction of term "corporator"; Spencer v. State, 5 Ind. 58, holding
that to repeal statute by implication, language must be clearly repugnant.
2 Or. 341^344, 2 L. Ed. 299, WINOHESTEB T. HACKLEY
Creditor upon open account, who has assigned claim wltb assent of debtor,
may sue debtor for use of his assignee.
Approved in Suydam v. Ewing, 2 Blatchf. 361, Fed. Cas. 13,655, hold-
ing that assignee of non-negotiable contract cannot sue in his own name;
Armstrong v. Mutual Life Ins. Co., 20 Blatchf. 496, s. c, 11 Fed. 576,
holding life insurance policy assignable only to extent provided in con-
tract; Sloan V. Sommers, 14 N. J. L. 512, where nominal plaintiff in ac-
tion on note was not allowed to release action without consent of real
plaintiff.
Distinguished in Neyfong v. Wells, Hard. (Ky.) 563, holding that
assignor cannot sue in his own name for use of assignee if instrument
negotiable in form; Reed v. Bainbridge, 4 N. J. L. 356, denying right
of assignor to sue for assignee, where bonds made assignable by statute.
In action by assignor, debtor may set off bis claims against the assignee.
Cited in Pitcher v. Patrick, Minor, 322, under joint plea by adminis-
trators of obligee on bond of two, debt from intestate to one of obligees
203 NOTES ON U. S. REPORTS. 2 Cr. 344-405
may "be set off; Campbell v. Hamilton, 4 Wash. 94, Fed. Gas. 2359, bs
to action on bond; Bridge v. Johnson, 5 Wend. 356, as to negotiable
paper transferred when overdue; Patts v. St. Clair, 11 Gratt. 24, render-
ing judgment for costs gainst real plaintiff when suit abandoned; Wart-
man V. Yost, 22 Gratt. 606, allowing judgment assigned to defendant to
be set off in action on bond.
Claim for nnllaoidated damages cannot be subject of setoff.
Cited in Hutchinson v. Coombs,' 1 Ware, 69, Fed. Cas. 6955, as to
claim for damages for tortious discharge of seaman; Smith v. Washing-
ton Gas Light Co., 31 Md. 18, 100 Am. Dec. 51, as to claim arising from
breach of contract; Jackson v. Bell, 31 N. J. Eq. 557, as to trespass;
Murray v. Toland, 3 Johns. Ch. 576, as to negligence; Heck v. Scheucr,
4 Scrg. & R. 260, 8 Am. Dec. 710, holding evidence of embezzlement not
admissible as setoff in action to recover for services.
2 Or. S44r-357, 2 I«. Ed. 300, BEILY ▼. I«A1£AB.
Citation is not necessary if appeal be taken during same term at wUcli
final decree is made.
Rule applied in The San Pedro, 2 Wheat. 142, 4 L. Ed. 205, as to appeal
in admiralty. Approved in Hudgins v. Kemp, 18 How. 537, 15 L. Ed.
514, but holding citation necessary when appeal allowed by judge in
vacation; Hewitt v. Filbert, 116 U. S. 144, 29 L. Ed. 582, 6 Sup. Ct. 320,
but holding citation necessary when appeal allowed at subsequent term.
Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. R. A. 843.
Miscellaneous. Cited in Ex parte Hull, 12 Fed. Cas. 856, M^rril v. Sher-
bmrne, 1 N. H. 204, but not in point.
2 Gr. 358-406, 2 I.. Ed. 304, UKITED STATES ▼. FISHEBw
In oonstming itotate^ every part is to be considered, including titles^
Approved in United States v. First National Bank, 234 U. S. 258, 58
L. Ed. 1S04, 34 Sup. Ct. 846, holding that taxes have priority of payment
in bankruptcy proceedings over claims of creditors, but not over e3q)enses
of proceedings ; Lapina v. Williams, 232 U. S. 92, 58 L. Ed. 520, 34 Sup. Ct.
196, holding that acts of 1903 and 1907 were directed against all aliens
irrespective of previous domicile in this country; Cornell v. Coyne, 192
U. S. 430, 48 L. Ed. 509, 24 Sup. Ct. 386, holding quantity of "filled cheese"
manufactured expressly for export not exempt from taxation by 29 Stats.
253; White v. United States, 191 U. S. 550, 48 L. Ed. 297, holding provi-
sions of navy personnel act (30 Stat. 1004) as to crediting officers appointed
from civil life with five years' service on date of appointment for purpose
of computing pay, apply to pay officers thereto appointed from commence-
ment of next fiscal year, but not to pay for period prior thereto; Patterson
v. Bark Eudora, 190 U. S. 172, 47 L. Ed. 1003, 23 Sup. Ct. 822, construing
30 Stat. 755, 763, relative to seaman's wages; Piru v. Chicago Title etc.
Co., 182 U. S. 452, 46 L. Ed. 1179, 21 Sup. Ct. 911, construing bankrupt
2 Cr. 358-405 NOTES ON U. S. REPORTS. 204
act of July 1, 1898, chapter, 541, section 60, relative to preferences ; Dewey
V. United States, 178 U. S. 521, 44 L. Ed. 1174, 20 Snp. Ct. 985, construing
Rev. Stats., § 902, in determining question of superiority of force at battle
of Manila Bay; Knowlton v. More, 178 U. S. 65, 44 L. Ed. 979, 20 Sup. Ct.
756, upholding provision of war revenue act imposing taxes on l^acies;
Connole v. Norfolk etc. Ry. Co., 216 Fed. 827, holding that where Ohio
Workmen's Compensation Act provides that it shall apply to employers
and employees engaged in intrastate, interstate and foreign, commerce, it
was not class legislation; United States v. Sutherland, 214 Fed. 324, where
in United States district having two divisions, but where divisions are not
statutory, in criminal case judge has discretion to transfer cause from one
division to other for prosecution ; United States v. Breeding, 207 Fed. 650,
holding that as no Federal statutes limits number of persons to be sum-
moned to complete grand jury, court can order summoning of more than
twenty-three; In re Lands of Five Civilized Tribes, 199 Fed. 824, holding
that act of April 21, 1904, did not remove restrictions relating to "home-
steads" of Choctaw-Chickasaw freedmen; Frame v. Bivens, 189 Fed. 790,
holding that where an intermarried citizen of Chickasaw nation executed
mortgage prior to obtaining patent, such instrument amounted to aliena-
tion within the meaning of act of April 21, 1904; In re Halsey Electric
Generator Co., 175 Fed. 831, construing words "mixed-blood Indians," and
holding that any Indian having identifiable mixture of other than Indian
blood is within meaning of words ; United States v. Merriam, 161 Fed. 308,
88 C. C. A. 349, holding that where later act of Congress does not in its
title amend or repeal an act requiring record of map, act must not be con-
strued to imply repeal ; St. Louis etc. R. Co. v. Delk, 158 Fed. 935, 14 Ann.
Oas. 233, 86 C. C. A. 95, holding Safety Appliance Act of 1893 , railroads
must keep cars ~ equipped with automatic couplers and use reasonable care
to keep such couplers in repair; United States v. Colorado etc.^R. Co., 157
Fed. 324, 13 Ann. Oas. 893, 15 L. B. A. (N. S.) 167, 85 C. C. A. 27, holding
that appliances required under the acts of Congress of March 2, 1893, April
1, 1896, and March 2, 1903, on cars of railroads engaged in interstate com-
merce, must be used even where company operates wholly within single-
state ; Rodgers v. United States, 152 Fed. 350, 81 C. C. A. 454, holding that
act of March 3, 1903, does not apply to aliens already domiciled in this
country; Farmers' Loan etc. Co. v. Sioux Falls, 131 Fed. 908, under Const.
S. D., art. XIII, § 4, city indebted to nearly fifteen per cent of assessed
value of property could not issue bonds so as to increase debt to twenty-
three per cent; M'Dumon v. Southern Pac. Co., 122 Fed. 676, holding
Missouri Rev. Stats. 1899, § 2876, relative to contracts limiting liability of
railroads for injuries to servants has no application to Pullman porters;
United States v. McCrory, 119 Fed. 864, holding act of February 26, 1900,
provides for restoration of suits pending in Federal courts; Johnson v.
Southern Pac. Co., 117 Fed. 465, holding 27 Stat., chap. 196, p. 531, does
not make it unlawful for interstate carriers not to use automatic couplers;
Swarts V. Si^el, 117 Fed. 19, construing bankruptcy act of 1898, § 57g;
Southern Ry. Co. v. Machinists' Local Union, 111 Fed. 57, construing
Tenn. Acts 1875, chapter 93; and holding it unlawful for striking labor
205 UNITED STATES v. FISHER. 2 Cr. 368-405
unioiiists to persuade apprentices to quit work; The Kestor, 110 Fed. 438,
439, upholding 30 Stat. 755, § 24, prohibiting prepayment of seamen's
wages; M'Master v. New York Life Ins. Co., 99 Fed. 868, construing insur-
ance policy; Webber v. St. Paul City*Ry. Co., 97 Fed. 145, construing Gen.
Stat. Minn. 1894, § 5912, relative to survival of actions for personal in-
juries; Mobile etc. R. Co. v. Spenny, 12 Ala. App. 411, 67 South. 751, hold-
ing that where white sheriff with negro prisoner refused to observe rule
requiring separation of races on passenger car, and was ejected and ob-
tained judgment for damages from ejecting company, judgment should be
reversed; Griswold v. Griswold, 23 Colo. App. 370, 129 Pac. 562, holding
that where marriage was contracted in New Mexico, and valid under laws
of that State, it was valid in Colorado, even though contracted before pro-
hibited time for contracting marriage after divorce obtained in Colorado
had expired; Mercer v. Mercer, 13 Colo. App. 245, 57 Pac. 752, holding
Session Laws of 1893 deprives Court of Appeals of appellate jurisdiction in
divorce suits; Holden v. United States, 24 App. D. C. 336, holding that
where discharge of gas products into Potomac was prohibited by law,
result, even though it renders manufacture of gas impracticable, will liot
justify court in refusal to enforce it ; State v. Shelton, 38 Jnd. App. 87, 77
N. E. 1054, holding that sale of liquors on Labor Day violated act concern-
ing legal holidays which prohibited such sale ; State v. Meek, 148 Iowa, 680,
AniL Oaa. 19120, 1075, SI L. R. A. (N. S.) 566, 127 N. W. 1026, holding
that where county treasurer received delayed payment of taxes without
exacting penalty, question as to his willfulness was for jury; Succ.ession
of Baker, 129 La. 85, Ann. Oas. 1912D, 1181, 55 South. 718, holding that
word "strangers" as used in inheritance tax statute, where tax is imposed
on inheritances to direct and collateral relations, applies to all persons not
included in other specified classes ; State v. Boasberg, 124 La. 297, 50 South.
164, holding that as appointment by judge of substitute for district at-
torney was nullity, information filed by substitute was also nullity; State
v. Bolden, 107 La. 119, 90 Am. St. Rep. 280, 31 South. 394, upholding
article XUV of act of 1890, making it a crime to willfully shoot any per-
son with intent to kill ; Pelletier v. O'Connell, 111 Me. 48, Ann. Oas. 1915B,
1074, 88 Atl. 60, holding, that proceedings to unseat members of common
council must be in accordance with rules of common law ; Phillips v. Mayor
etc. of Baltimore, 110 Md. 439, 25 L. R. A. (N. S.) 711, 72 Atl. 906, statute
allowing suit against corporation may be brought in county where its cer-
tificate is recorded or where it transacts business, does not apply to munici-
pal corporation; State v. Mississippi Valley Trust Co., 209 Mo. 492, 108
S. W. 102, holding executor of trustee hot liable for tax on trust estate not
held by executor; Forrester v. Southern Pac. Co., 36 Nev. 270, 48 L. R. A.
(N. S.) 11, 134 Pac. 759, action for wrongful expulsion from train com-
menced by nonresident,* may be continued by plaintiff's administratrix;
State V. Erie R. Co., 83 N.J. L. 236, 84 Atl. 700, question whether dense
smoke created by use of soft coal by railroad was nuisance was for jury;
White V. White, 61 N. J. Eq. 631, 47 Atl. 629, holding under chancery act
as amended in 1 Gen. Stats., p. 402, appeals must be taken within three
months of filing decree; School Commrs. v. Board of Alderman, 158 N. C.
2 Cr. 368-405 NOTES ON U. S. REPORTS. 206
197, 73 S. £. 908; holding that school commissioners had exclusive control
and fund should be paid them by aldermen; State v. Thompson, 21 N. D.
437, 131 N. W. 237, holding cumulative voting not authorized in election
of city officers ; Luick v. Arends, 21 N. D. 637, 132 N. W. 361, holding that
statute of state wherein action was pending controlled as against statute
of sister state ; Neilson v. Alberty, 36 Okl. 495, 129 Pac. 849, holding issu-
ance of certificate of competency to Osage Indian did not subject land to
•judgment lien recovered before such issuance; Choctaw etc. R. R. Co. v.
Alexander,'7 Okl. 583, 584, 595, 52 Pac. 945, 54 Pac. 422, construing act
regulating prairie fires; Osgood v. Central Vermont Ry. Co., 77 Vt. 340,
70 L. R. A. 930, 60 Atl. 139, under statute providing for imprisonment of
agent of railroad whose negligence causes injury, but not exempting liabil-
ity for damages, lessor of part of right of way for coalsheds under agree-
ment for indemnity for negligence of railroad's servants, cannot recover for
negligent running of engine against shed; dissenting opinion in Chauncey
V. Dipke Bros., 119 Fed. 16, 17, majority holding liens of laborers and
materialmen superior under Ark. Acts 1895, p. 217, § 3, to that of mort-
gagees ; dissenting opinion in People v. Harrison, 191 III. 271, 6l N. E. 104,
majority holding that under annexation act 1889, p. 18, liquor prdinances
of Hyde Park continued in force after annexation to Chicago; dissenting
opinion in McDermott v. State, 143 Wis. 44, 21 Ann. Oas. 1315, 126 N. W.
895, majority holding that provisions of act of Congress of June 30, 1906,
does not in depriving infringers of property and liberty violate Constitu-
tion; Anable v. Montgomery County Commrs., 34 Ind. App. 78, 107 Am.
St. Rep. 173, 71 N. E. 274, arguendo; Smythe v. Fiske, 23 Wall. 380, 23
L. Ed. 49, construing revenue laws; Doggett v. Railroad Co., 99 U. S. 78,
25 L. Ed. 303, as to statute providing for taxation of bonds ; Lake County
V. Rollins, 130 U. S. 671, 32 L. Ed. 1063, 9 Sup. Ct. 652, construing con-
stitutional limitation on counties as to indebtedness; Church of the Holy
Trinity v. United States, 143 U. S. 462, 36 L. Ed. 229, 12 Sup. Ct. 513, as
to act relating to immigration under contract to perform labor; Coosaw
Mining Co. v. South Carolina, 144 U. S. 563, 86 L. Ed. 542, 12 Sup. Ct.
692, construing strictly legislative grant of property; Bate Refrigerating
Co. V. Sulzberger, 157 U. S. 38, 39 L. Ed. 611, 15 gup. Ct. 517, as to patent
laws ; United States v. Oregon etc. R. R., 164 U. S. 541, 41 L. Ed. 545, 17
Sup. Ct. 170, holding, however, that title cannot be considered, unless act
otherwise ambiguous ; Price v. Forrest, 173 U. S. 427, 43 L. Ed. 755, hold-
ing preamble* may be considered; Ogden v. Strong, 2 Paine, 588, Fed. Cas.
10,460, where rule is applied to private statutes ; Copeland v. Memphis etc.
R. R. Co., 3 Woods, 661, Fed. Cas. 3209, as to preamble of act of incorpo-
ration; in Hahn v. Salmon, 10 Sawy. 196, s. c, 20 Fed. 809, but holding
preamble to be considered only in case of ambiguity; Wilson v. Spauld-
ing, 19 Fed. 305, as to title of tariff statute; in United States v. Union
Pac. Ry. Co., 37 Fed. 553, as to title of act granting land to railroad com-
pany; United States v. Chong Sam, 47 Fed. 884, in construing Chinese
exclusion act; Berlin Bridge Co. v. San Antonio, 62 Fed. 889, as to con-
stitutional limitation on contraction of debts by city; Oregon etc. Ry. Co.
V. United States, 67 Fed. 655, 29 U. S. App. 497, as to railroad land grant ;
207 UNITED STATES v. FISHER. 2 Cr. 358-405
■
Knox Co. V. Morton, 68 Fed. 789, 32 U. S. App. 513, as to statute limiting
time for presentment of county warrants; Shreve v. Cheesman, 69 'Fed.
789, 32 U. S. App. 676, as to statute providing for recovery of costs; St.
Paul etc. Ry. Co. v. Sage, 71 Fed. 47, 36 U. S. App. 340, as to railroad land
grants ; Barber etc. Co. v. City of Denver, 72 Fed. 345, 36 U. S. App. 499,
constming city charter; Pearsall v. Great Northern Ry. Co., 73 Fed. 942,
as to statutes amending corporate charter; in In re Wong Fock, 81 Fed.
561, determining jurisdiction under Chinese exclusion act ; In re Chad wick,
5 Fed. Cas. 400, construing bankruptcy act; Ludington v. The Nucleus, 15
Fed. Cas. 1095, as to act extending jurisdiction of admiralty to lakes and
rivers; Prentiss v. Ellswortl^, 19 Fed. Cas. 1282, construing patent laws;
in Bartlett v. Morris, 9 Port. 268, 270, as to private statute, holding title
to govern only when act ambiguous; Wiswell v. Monroe, 4 Ala. 17, con-
struing statute as to duty of register to certify facts to court; Enslava's
Heirs v. Boiling, 22 Ala. 736^ as to private act for relief of heirs of dece-
dent; Broadbent v. Tuskaloosa Scientific etc. Assn., 45 Ala. 171, as to cor-
porate charter, where State Constitution requires title to clearly express
intention of legislature; Ex parte Ellis, 11 Cal. 225, holding statute in
derogation of common law to be construed strictly; Tape v. Hurley, 66
Cal. 474, 6 Pac. 130, construing statute opening schools to white children,
to include Chinese under amendment making no mention of race; Metcalf
V. Qillet, 5 Conn. 403, as to act regulating method of appraisement of
prox)erty taken under execution; dissenting opinion in Booth v. Booth, 7
Conn. 368, as to statute regulating levy of executions; Farrell Foundry v.
Dart, 26 Conn. 381, holding statute not to be extended beyond clearly ex-
pressed intention of legislature ; White v. Camp, 1 Fla. 109, holding statute
in derogation of common law to be strictly construed ; State v. Commis-
sioners of Jefferson Co., 20 Fla. 432, as to act regulating sale of intoxi-
cating liquors; Eastman v. McAlpin, 1 Ga. 171, but holding title not to be
part of statute; Akin v. Freeman, 49 Ga. 54, as to statute amending prior
statute of limitations, holding prior statute should be considered; dissent-
ing opinions in People v. Wren, 4 Scam. 277, 282, when construing an act
creating a county which included part of another county, majority held
act to create county absolutely, without regard to option of inhabitants
to organize or not; Perry County v. Jefferson County, 94 111. 220, giving
effect to title in construing act establishing boundary between counties;
Ohio & Miss. Ry. Co. v. People, 123 111. 486, 14 N. E. 881, as to constitu-
tional provision regarding corporations; Spencer v. State, 5 Ind. 58, hold-
ing clearly repugnant language necessary to effect repeal of statute, and
giving effect to title of act ; Simington v. State, 5 Ind. 484„ as to construc-
tion of acts defining jurisdiction of courts; Dodd v. State, 18 Ind. 62, as
to amendatory act ; Duf9ur v. Dufour, 28 Ind. 425, construing term "final
settlement" in statute regulating administration; Garrigus v. Commission-
ers of Parke Co., 39 Ind. 71, holding title to be considered when act other-
wise ambiguous ; Cory v. Carter, 48 Ind. 337, 17 Am. Rep. 745, as to provi-
sions of State Constitution; Stout v. Commissioners of Grant County, 107
Ind. 347, 8 N. E. 224, holding intention of legislature must be regarded;
United States Savings etc. Co. v. Harris, 142 Ind. 231, 40 N. E. 1073, hold-
2 Cr. 35&-405 NOTES ON U. S. REPORTS. 208
ing term "conveyance of real estate" to include mortgage; dissenting
opinion in Jones v. Iowa, 1 Iowa, 403, as to proviso in repealing act;
Doane v. Farrow, 9 Mart. (La.) (0. S.) 254, as to statute requiring notice
in certain actions ; Borie v. Borie, 5 La. 92 , as to statute regulating control
of property of feme covert; State v. Cazeau, 8 La, Ann. 116, holding title
not to govern clear expression of act; Harlow v. Young, 37 Me. 91, but
holding title and preamble not parts of act; Frazier v. Warfield, 13 Md.
301, 304, as to act providing for inspection of grain ; Miller v. Cumberland
Cotton Factory, ^6 Md. 492, as to act creating liens; Smith v. Thursby, 28
Md. 260, construing State Constitution ; Leonard v. Wiseman, 31 Md. 205,
as to act providing for payment of bounty to enlisted men; Maxwell v.
State, 40 Md. 292, as to act providing for assessment of taxes; Common-
wealth V. Casey, 12 Allen, 221, construing statute providing penalty for
violation of revenue laws; Bronson v. Newberry, 2 Doug. (Mich.) 43, as
to "nonimprisonment act"; Wales v. Lyons,^ 2 Mich. 286, as to statute
abolishing special pleadings; People v. Plumsted, 2 Mich. 468, as to act
exempting homesteads from forced sale; Taylor v. Taylor, 10 Minn. 120,
construing strictly statute in derogation of common law; Minor v. State,
36 Miss. 636, as to statute providing for appeals in criminal cases ; Learned
V. Corley, 43 Miss. 695, as to statute regulating procedure in ejectment;
State V. Williams, 35 Mo. App. 547, construing "Sunday laws"; Boyd v.
Ward Furniture etc. Co., 38 Mo. App. 217, construing, liberally, statute
regulating executions on personal property; State v. Macklin, 41 Mo. App.
342, as to statute prescribing qualifications of school directors; Westport
V. Mastin, 62 Mo. App. 658, construing section of city charter providing
for tax levy ; Smith v. Williams, 2 Mont. 200, as to act to prevent tres-
passing of cattle; Davis v. Clark, 2 Mont. 396, as to ejectment under stat-
ute; Smiley v. Sampson, 1 Neb. 90, restraining general words when par-
ticular intent not apparent; Shellenbei^er v. Ransom, 41 Neb. 643, 59
N. W. 939, as to statute regulating descent; Brown v. Davis, 1 Nev. 414,
as to statute defining duties of public officers ; Bow v. Nottingham, 1 N. H.
264, as to statute providing for settlement of illegitimate children ; Kidder
V. Stewartstown, 48 N. H. 292, holding title of statute to be considered;
Hale V. Everett, 53 N. H. 82, 16 Am. Bep. 127, construing clause of State
Constitution holding, where intention is clear, there is no room for con-
struction; but see also dissenting opinion, pages 165, 225, minority hold-
ing that consequences should be considered, and if the language results
in an exception to a general rule, the intention must be clearly and irre-
sistibly so expressed; Ogden v. Price, 9 N. J. L. 170, but holding statute
must be ambiguous in order to apply rules of construction; Brown v.
Wright, 13 N. J. L. 242, construing insolvency act; State v. Clark, 29
N. J. L. 99, as to act constituting willful destruction of property an in-
dictable offense; Rudderow v. State, 31 N. J. L. 515, as to act regulating
assessment of stock; Evemham v. Hulit, 45 N. J. L. 55, but holding title
incompetent to supply defects or omissions in body of statute; Wallace v.
Wallace, 3 N. J. Eq. 623, construing statute regulating probate of wills;
Morris Canal etc. Co. v. Central R. R. Co., 16 N. J. Eq. 428, as to title of
act of incorporation; Tafoya v. Garcia, 1 N. M. 483, as to title of act "rela-
209 UNITED STATES v. FISHER. 2Cr.36S-405
tive to revision of statutes'' ; Buel v. Southwick, 2 N. M. 384, dissenting
opinion to effect that where terms are plain there is no room for construe-
tion; Jackson v. Van Zandt, 12 Johns. 175, construing statute abolishing
entails; People v. Roper, 35 N. Y. 635, as to statute exempting class from
taxation ; People v. Molyneux, 40 N. Y. 122, considering title in act relative
to national guard; People v. Potter, 47 N. Y. 382, applying principle to
construction of State Constitution; Ayers v. Lawrence, 59 N. Y. 197, as to
act for protection of taxpayers against frauds of public officers; People
V. Wood, 71 N. Y. 374, as to acl providing for settlement of floating debt
of city; Van Voorhis v. Brintnall, 86 N. Y. 37, 40 Am. Rep. 519, as to
statute relating to validity of marriage contracts; Cogswell v. New York
etc. R. R. Co., 103 N. Y. 22, 8 N. E. 542, construing section of corporate
charier granting certain jwwers; Hill v. Mayor of New York, 139 N. Y.
502, 34 N. E. 1092, on same point; Morton v. Mayor of New York, 140
N. Y. 213, 35 N. E. 491, and Simonston v. Lanier, 71 N. C. 502, construing
corporate charter; Freight Discrjjnination Cases, 95 N. C. 447, holding title
of act competent to indicate intention; State v. Pugh, 43 Ohio St. 113,
1 N. E. 448, as to title of act to reorganize certain cities; State v. Robin-
son, 32 Or. 46, 48 Pac. 358, holding title is to be considered in construing
penal statute; Deddrick v. Wood, 15 Pa. St. 12, construing act prohibit-
ing obstruction of river; State v. Holman, 3 McCord (S. C.) 307, as to act
relating to fraudulent packing of cotton; State v. Williams, 2 Strob. 477,
as to penal statute; Asdell v. Sutherland, Peck (Tenn.), 129, holding fur-
ther that prior statutes on same subject should be considered; Trott v.
McGavock, 1 Yei^. 479, construing statute relating to officer's duties in
levying executions ; Fisher V. Dabbs, 6 Yerg. 149, construing statute pro-
viding for manumission of slaves; State v. Delesdenier, 7 Tex. 104, 106,
as to statute exempting certain public lands from taxation; dissenting
opinion in Texas B. & I. Co, v. Cohen, 47 Tex. 413, and principle applied
to construction of provision in policy of insurance ; Cline v. State, 36 Tex.
Cr. 351, 61 Am. St. Rep. 870, 36 S. W. 1108, construing section of Constitu-
tion regarding right to "speedy public trial"; United States v. Snow, 4
Utah, 320, 9 Pac. 702, construing terms of "Edmunds act" ; Pratt v. Swan,
16 Utah, 491, 52 Pac. 1094, construing statute relative to powers of munici-
pal officers; State v. Shattuck, 69 Vt. 409, 60 Am. St. Rep. 939, 38 Atl.
82, as 'to statute forbidding guilty party to decree of divorce to remarry;
Crafford v. Supervisors of Warwick Co., 87 Va. 115, 12 S. E. 148 ; holding
word "persons," inclusive of "corporations"; dissenting opinion in Buffhan
v. Racine, 26 Wis. 453, to point that where language is plain, rules of con-
struction not to be applied. The principal case has also been cited in the
following cases, discussing general subjects: In re Smith, 22 Fed. Cas.
402 ; Opinion of Justices, 46 Me. 586 ; Jim y. State, 3 Mo. 167, 170 ; Wear
V. Bryant, 5 Mo. 172, dissenting opinion in Seldon v. Hall, 21 Mo. App.
466; dissenting opinion in Rich v. Flanders, 39 N. H. 370; State v. Whitaker,
85 N. C. 569 ; Weatherhead v. Bledsoe, 2 Overt. 379.
Preference given by Bankruptcy Act, section 6, is not confined to persons
accountable for public money, but. extends to debtors of United States gsur
erally.
1—14
2 Cr. 358-405 . NOTES ON U. S. REPORTS. 210
Approved in In re Bennett, 153 Fed. 689, 82 C. C. A. 531, holding that
under bankruptcy act of July 1, 1898, right of priority of claim in bank-
ruptcy, passes to assignee; Advance Thresher Co. v. Beck, 21 1^. D. 59,
Ann. Oas. 191dB, 517, 128 N. W. 316, holding that threshing machine might
be sold to pay taxes, interest and taxes, but no more; S. H. Hawes & Co.
V. Wm. R. Trigg Co., 110 Va. 206, 65 S. E. 554, holding that statutory lien
for labor and supplies was superior to lien of government ; Lewis v. United
States, 92 U. S. 621, 28 L. Ed. 514, as to money advanced for disburse-
ment ; United States v. Hoiar, 2 Mason, 316, Fed. Cas. 15,373, holding stat-
ute of limitations does not extend to debts due United States; United
States V. Cook County Bank, 9 Biss. 58, Fed. Cas. 14,853, as to postal
and money order funds deposited in bank; United States v. Wilkinson, 5
Dill. 277, Fed. Cas. 16,695, holding priority of United States secured only
when by act of law or the debtor property is being administered for bene-
fit of creditors generally; United States v. Eggleston, 4 Sawy. 204, Fed.
Cas. 15,027, but holding that priority does not create lien; to same effect
also in United States v. Griswold, 7 Sawy. 303, 8 Fed. 501; Anderson v.
State, 23 Miss. 475, but holding right of prior payment does not of itself
create lien; United States v. Hahn, 37 Mo. App. 583, holding, however,
costs of administration and widow's allowance to take precedence over
claims of United States; Aikin v. Dunlap, 16 Johns. 85, holding priority
does not create lien ; on same point in Storm v. Waddell, 2 Sandf . Ch. 527 ,
Ridgley v. Iglehart, 3 Bland Ch. 542, 544, United vStates v. Thompson,
33 Md. 577, State v. Harris, 2 Bail. 600, dissenting opinion in Merrill v.
National Bk. of Jacksonville, 173 U. S. 177, 48 L. Ed. 657, arguendo.
Distinguished in Postmaster-General v. Bobbins, 1 Ware, 169, Fed. Cas.
11,314, holding such debts not to take priority over widow's allowance
from decedent's estate; Bush v. United States, 8 Sawy. 330, 14 Fed. 323,
holding priority attaches only in case property assigned for benefit of all
creditors; Wilcocks v. Wain, 10 Serg. & R. 380, holding that debts due
United States do not take priority over debt secured by mortgage.
Priority of State of United States in payment. Note, 29 L. R. A. 228,
229, 241.
Power to make all laws necessary and proper tx> carry Into execation
powers granted, confen on Congress choice of means and does not confine it
to what is Indispensably necessary. "^
Approved in United States v. 288 Packages of Merry World Tobacco,
103 Fed. 454, upholding act of July 24, 1897, prescribing contents of
tobacco packages; dissenting opinion in People v. McCullough, 254 111. 33,
Ann. Cas. 1913B, 995, 98 N. E. 164, majority holding officers of Secretary
of State are within civil service law; dissenting opinion in Civil Rights
Cases, 109 U. S. 51, 27 L. Ed. 853, 3 Sup. Ct. 50, where the majority held
the passage of civil rights act not within the power of Congress ; Juilliard
V. Greenman, 110 U. S. 440, 441, 28 L. Ed. 212, 4 Sup. Ct. 126, upholding
power of Congress to make treasury notes legal tender; dissenting opinion
in Baldwin v. Franks, 120 U. S. 701, 80 L. Ed. 776, 7 Sup. Ct. 667, major-
ity holding unconstitutional, a statute providing for punishment of con-
211 UNITED STATES v. FISHER. 2 Cr. 358-405
spiraeies to deprive aliens of rights secured by treaty; dissenting opinion
in In re Neagle, 135 U. S. 87, 84 L: Ed. 79, 10 Sup. Ct. 676, to point that
act of Congress is necessary to give jurisdiction to Circuit Courts; In re
Jackson, 14 Blatchf. 250, Fed. Cas. 7124, upholding constitutionality of act
providing penalty for siding matter relating to lotteries through the
mails; In re Reiman and Friedlander, 7 Ben. 466, Fed. Cas. 11,673, hold-
ing power of Congress over bankruptcy, general and unlimited; People v.
Na^lee, 1 Cal. 235, 62 Am. Dec. 315» to point that powers not granted to
Congress are reserved to the States, and State may exact license fee from
foreigners for privilege of working mines; Lick v. Faulkner, 25 Cal. 422,
as to power of Congress to make treasury notes legal tender; Thayer v.
Hedges, 23 Ind. 146, on same point ; McCormiok v. Humphrey, 27 Ind. 154,
as to power of Congress to provide for transfer, before judgment, of causes
within jurisdiction of United States courts; Lafayette etc. R. R. Co. v,
Gei^er, 34 Ind. 213, as to grant of power to State legislature; Hancock v.
Yaden, 121 Ind. 370, 373, 16 Am. St. Rep. 399, 401, 23 N. E. 254, 255, holding
constitutional, act of legislature prohibiting contracts waiving right to pay-
ment in lawful medium of payments; Dupuy v. Bemiss, 2 La. -Ann. 514,
upholding jurisdiction of Circuit Court of United States in actions between
citizens of different States; George v. Concord, 45 N. H. 443, 447, uphold-
ing constitutionality of legal tender acts; so, also, in Metropolitan Bank
V. Van Dyck, 27 N. Y. 437, 476 , The Legal Tender Cases, 52 Pa. St. 65, 88,
discussing general subject; Chartiers etc. Co. v. McNamara, 72 Pa. St.
285, 13 Am. Rep. 680, where acts of Congress relating to taxation and
revenue considered and compared.
Wben statute is plain and ambiguous, constniction Is uinecessary.
Approved in Kerr v. State, 33 Okl. 115, 124 Pac. 286, holding that sec-
tion of Constitution intended to limit amount of indebtedness to be as-
sumed ; Atlantic Coast Line R. Co. v. Richardson, 121 Tenn. 460, 117 S. W.
499, where injury to property occurred outside State where action was
bron^ht, court had no jurisdiction; Grass v. Big Creek Development Co.,
75 W. Va. 734, 84 S. E. 756, applying rule in construing covenants of oil
and gas lease; Central Banking & Security Co. v. United States Fidelity
etc. Co., 73 W. Va. 202, 51 L. R. A. (N. S.) 797, 80 S. E. 123, holding that
sureties on additional bond given liable on suit for contribution brought
by surety on original bond after his payment of liability; Layne v. Chesa-
peake etc. Ry. Co., 66 W. Va. 614, 67 S, E. 1106, construing section of code
of West Virginia in reference to extension of time to prepare bills of
exception; White v. Bailey, 65 W. Va. 576, 23 L. R. A. (N. S.) 282> 64
S. E. 1021, construing deed as to clause therein reserving lien for main-
tenance, where grantee abandoned land.
What is indebtedness within meaning of prohibitions against munici-
pal indebtedness. Note, 44 Am. St. Rep. 232.
Presumption against statutory authority to commit nuisance. Note,
• 70 L. R. A. 588.
Effect of legislative authority on liability for private nuisance. Note,
1 L. R. A. (N. S.) 122.
2Cr.406 NOTES ON U. S. REPORTS. 212
«
Local or statutory authority as justification for a nuisance. Note, "^
16 E. B. 0. 583.
Miscellaneous. Cited to effect that mortgage is conveyance and passes
property conditionally to mortgagee: Porter v. Greene, 4 Iowa, 574, Bab-
cock V. Hoey, 11 Iowa, 377, United States v. Hawkins, 4 Mart. (La.)
(N. S.) 330, Pickett v. Buckner, 45 Miss. 244, Bank of Muskingum v. Car-
penter's Admrs., 7 Ohio (pt. I), 70, 28 Am. Dec. 620, Holmes v. Gardner,
50 Ohio St. 176, 33 N. E. 646 , and Jordan v. Peak, 38 Tex. 442 , to point
that construction is not to be retrospective; Boyce v. Holmes, 2 Ala. 56,
Thome v. San Francisco, 4 Cal. 136, and Mussey v. Noyes, 26 Vt. 474, as
to distinction between general and partial assignment.
2 Cr. 406, 2 L. Ed. 320, UNITED STATES v. SOHOONEB SALLT.
Question of forfeiture of vessel for violation of act prohibiting slave
trade is within Jurisdiction of admiralty, and trial is not to be by Jury.
Approved in Four Hundred and Forty-three Cans of Frozen Egg Pro-
duct V. United States, 226 U. S. 180, 57 L. Ed. 178, 33 Sup. Ct. 50, hold-
ing Federal court decree dismissing libel for condemnation of food prod-
ucts seized on land for violation of pure food act is reviewable on error
and not by appeal; United States v. Schooner Betsey and Charlotte, 4 Cr.
446, 2 L. Ed. 674, following rule ; The Sarah, 8 Wheat. 394, 5 L. Ed. 644,
holding that where libel charges seizure on water navigable from sea, and
it appears seizure was made on land, court cannot direct trial by jury
without amendment; Waring v. Clarke, 5 How. 458, 12 L. Ed. 234, apply-*
ing principle to case of collision on Mississippi river; New Jersey Steam
Navigation Co. v. Merchants' Bank, 6 How. 388, 12 L. Ed. 484, upholding
admiralty jurisdiction over contracts of affreightment to be executed on
high seas; dissenting opinion in The Steamboat Magnolia, 20 How. 334,
15 L. Ed. 926, majority holding jurisdiction to extend to case of collision
on river navigable from sea above tide water; De Lovio v. Boit, 2 Gall.
474, Fed. Cas. 3776, holding Admiralty courts to have concurrent jurisdic-
tion with common-law courts over maritime contracts ; The Wave, Blatchf .
& H. 240, Fed. Cas. 17,297, holding jurisdiction to extend to case of sal-
vage on waters within boundaries of a State; Slocum v. Wheeler, 1 Conn.
446, to point that seizures to give admiralty jurisdiction must be on navi-
gable water; Novion v. Hallett, 16 Johns. 347, holding no action lies at
common law for illegal seizure on high seas; United States v. Wiltberger,
5 Wheat. 115, 5 L. Ed. 48 , The Eagle, 8 Wall. 26, 19 L. Ed. 370, and
Anonymous, 1 Gall. 25, Fed. Cas. 444, discussing general subject and col-
lecting authorities; People v. Tyler, 7 Mich. 274, wJiere constitutionality
of acts extending admiralty jurisdiction to great lakes considered and
denied.
2 Cr. 406, 2 L. EO. 320, BAIUTF v. TIPPINO.
Citation mnnt issue with writ of error.
Cited in Villabolos v. United States, 6 How. 90, 12 L. Ed. 356, holding
that when entry of appeal is made, and no citation served within time
required, appeal will be dismissed on motion.
213 NOTES ON U. S. REPORTS. 2 Cr. 407^44
Distinguished in Naylor v. Phillips, 3 Stew. 210, where appellant vol-
ontarily appeared.
Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. B. A. 844.
2 Cr. 407-418, 2 L. Ed. 320, TELFAIB v. STEAD'S .EXE0UTOE8.
Landi! of deceased debtor, in Oeorgia, are liable in equity for payment
of his debts^ witbout "^""g heirs parties to suit.
Cited in Alston v. Rowles, 13 Fla. 116, under statute ; so, also, in
Coombs V. Jordan, 3 Bland Ch. 307, 22 Am. Dec. 255 ; dissenting opinion in
McArthur v. Porter, 1 Ohio, 107, majority holding that where vendor hav-
ing lien for purchase pric^ of land obtains judgment u^on which land is
sold, the lien does not pass to the purchaser and so cannot be set up
against widow's claim of dower; Mauldin v. Gossett, 15 S. C. 580, discuss-
ing general subject; Carey v. Roosevelt, 91 Fed. 568, following assets of
estate into hands of distributees, to pay debts.
Miscellaneous. Cited in Quong Wing v. Kirkendall, 223 U. S. 64, 56
L Ed. 352f 32 Sup. Ct. 192, to point that court will not consider point not
raised in discussing validity of Montana laundry license tax.
2 Or. 41»-444, 2 L. Ed. 324, GBAVES v. BOSTON MARINE INS. OO.
One partner effecting insurance in own name on property on board Tetssel
cannot recovw indenmity for loss sostsdned by his flrnt
Approved in American Livestock etc. Co. v. Great Northern Ry. Co.,
48 Mont. 504, 138 Pac. 1104, holding one number of pool cannot sue alone
where damajge is to all those belonging to pool jointly; Durand v. Thouron,
1 Port. 245j^ as to indemni^ for loss of property left with insured for
sale; Batre v. Durand, 1 Port. 255, under similar facts; Merchants' Ins.
Co. V. Mazaoge, 22 Ala. 179, as to right of temporary occupant of prem-
ises under decree of Court of Chancery; McCord v. Scale, 56 Cal. 264,
holding evidence of interest of copartner inadmissible, where complaint
averred individual interest; Russell v. Insurance Co., 4 Mass. 84, hold-
ing that under policy of insurance in name of A as agent of B, the latter
cannot recover for use of C, whom he declares alone intereste<f in the
policy ; Dumas v. Jones, 4 Mass. 652 ; and Finney v. Insurance Co., 8 Met.
351, 41 Am. Dec. 517, under facts similar to those in principal case ; Peoria
etc. Ins. Co. v. Hall, 12 Mich. 210, and Wise v. Insurance Co., 23 Mo. 85,
holding policy of insurance to cover insurable interest of those only who
are named in the policy. So also in Plahto v. Insurance Co., 38 Mo. 254,
and in Pacific Ins. Co. v. Catlett, 4 Wend. 82 ; Manhattan Ins. Co. v. Web-
ster, 59 Pa. St. 230, 98 Am. Dec. 334, partner on receipt of insurance must
account to firm.
Distinguished in Bartlett v. Walter, 13 Mass. 269, 7 Am. Dec. 144, where
plaintiff. Hirer of vessel, held to have valuable insurable interest| having
eontracted with owner to effect insurance.
2 Cr. 407-444 NOTES ON U. S. REPORTS. / 214
Policy of insurance will not be reformed by equity after loss, upon doubtful
proof of Intention of insured, or of its communication to underwriter.
Approved in Western Sugar Refining' Cd. v. Helvetia Swiss Fire Ins.
Co., 163 Fed. 645, holding insurance policy will not be reformed so as to
allow suit against undisclosed principal; Sullivan v. Louisville etc. R. R.
Co., 128 Ala. 94, 30 South. 533, holding word "assigns," as used in con-
tract, does not mean partner; Murphy v. Royal Ins. Co. of Liverpool, 62
La. Ann. 788, 27 South. 148, holding assured accepting policy containing
clause that no officer can waive stipulations unless waiver is in writing,
is bound ^hereby; Merchants' Mut. Fire Ins. Co. v. Harris, 51 Colo. 105,
116 Pac. 147, holding knowledge of diversity of interests given to agent
is imputed to insurance company; Dearborn v. Niagara Fire Ins. Co., 17
N. M. 231, 125 Pac. 608, holding where mi^ake is mutual, courts will
reform policy so as to include party, originally intended to be insured;
Carpenter v. Providence- Washington Ins. Co., 4 How. 224, H L. Ed. 949,
refusing to confirm policy of insurance, where there was provision requir-
ing notice of subsequent insurance and such notice had not been given;
Insurance Co. v. Nelson, 103 U. S. 549, 26 L. Ed. 438, where amount of
proof sufficient to impeach mortgage considered; Andrews v. Essex Ins.
Co., 3 Mason, 10, 15, Fed. Cas. 374, denying ruling where mistake injamit-
ting clause in policy did not clearly appear; Sias v. Insurance Co., 8 Fed.
188, holding terms of insurance contract, when clear, cannot be varied
by evidence of extrinsic circumstances; so, also, in Insurance Co. v. Wil-
cox & Gibbs Guano Co., 66 Fed. 730, 25 U. S. App. 201, under similar
facts; Worley v. Tuggle, 4 Bush (Ky.), 175, as to proof required to reform
a deed; Reeve v. Insurance Co., 23 La. Ann. 221, holding that in action
to recover on policy, insured cannot set up his ignorance of clause against
storing inflammable oils; Chase v. Insurance Co., 67 Me. 92, holding that
provisions in application for policy cannot control policy itself; Tesson
v. Insurance Co., 40 Mo. 36, 37, 93 Am. Dec. 295, 296, holding that mis-
take in policy must be proved by clearest evidence ; Henderson v. Stokes,
42 N. J. Eq. 589, 8 Atl. 719, as to omission of clause in policy; Smith v.
Alli3, 52 Wis. 348, 9 N. W. 157, holding that to impeach acknowledgment
of mortg€ige, evidence of fraud must be clear.
Distinguished in Snell v. Insurance Co., 98 U. S. 89, 90, 26 L. Ed. 54»
where insured never had possession of policy.
Reformation of contracts. Note, 66 Am. St. Bep. 482.
Sufficiency of evidence to warrant reformation of instrument on
ground of mutual mistake. Note, 19 Ann. Gas. 360.
Relief from mistake of law as to effect of instrument. Note, 28
L. R. A. (N. S.) 836.
Equity will not grant relief where there is plain, adequate and complete
remedy at law, though question not raised by defendant in pleadings.
Approved in Allen v. Myers, 1 Alaska, 117^ applying rule in suit to quiet
title to mining claim; Hipp v. Babin, 19 How. 278, 16 L. Ed. 636, where
bill brought in equity to recover real estate based on purely legal title;
x
216 HEPBURN v. ELLZEY. ^ 2 Cr. 446-453
Parker v. Winnipiseogee ete. Co., 2 Black, 551, 17 L. Ed. 837, as to action
for injury to water-power when no allegation of irreparable injury ; Insur-
ance Co. y. Bailey, 13 Wall. 621, 20 L. Ed. 503, refusing to order cancel-
lation of policy on ground that representations were fraudulent, where '
these representations can be used in suit at law upon the policy; Baker
V. Biddle, 1 Bald. 407, 416, 420, Fed. Cas. 764, holdii^ bill for account not
to lie where account has been rendered and received; Berry v. Ginaca, ^
Sawy. 396, 5 Fed. 481, where complainant failed to establish right to
vendor's lien; Dugan v. Cureton, 1 Ark. 42, 31 Am. Dec. 733, 734, holding
mere failure to perform contract not ground for equitable relief against
payment.
Distinguished in Oelrichs v. Spain, 15 Wall. 228, 21 L. Ed. 44, holding
that although action at law may be maintained on injunction bond, equity
must still settle rights of obligees; Pierpont v. Fowle, 2 Wood. & M. 29,
Fed. Cas. 11,162, as to violation of copyright, equitable action being more
effective.
Retention of policy as waiver of mistake or fraud of insurer or agent.
Note, 67 L. R. A. 726, 789.
Rules for construing insurance policies. Note, 14 E.^ R. 0. 16,
2 Cr. 445-153, 2 I«. Ed. 332, HEPBURN ▼. ELI2ET.
District of OolnmUa Is not *'a State," and its citlsens cannot sue in TMted
States courts as citizens of any State.
Approved in Ex parte Massachusetts, 197 U. S. 487, 40 L. Ed. 848, 26
Sap. Ct. 612, denying prohibition as ancillary to suit between citizen of
District of Columbia and citizens of another State; Downes v. Bidwell,
182 U. S. 269, 46 L. Ed. 1096, 21 Sup. Ct. 776, holding Porto Rico not part
of United States within meaning of tariff clause of Constitution ; Clark v.
Southern Pac. Co., 176 Fed. 126, citizen of territory of Arizona is not citi-
zen of State so as to confer Federal jurisdiction on accounfof diversity
of citizenship ; Kuchler v. Greene, 163 Fed. 97, to oust court of jurisdiction
on account of diversity of citizenship, party in question must be indispen-
sable one; Iowa etc. Min. Co. v. Bliss, 144 Fed. 466, where alien sued non-
resident guaranty corporation on bond in which principal held guaranty
company harmless 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, 66 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 petitioners are residents and citizens of State
whereof plaintiff is citizen, is insufficient; United States v. Whelpley, 126
Fed. 617, holding 28 Stat. 963, does not prohibit transportation of lottery
tickets from a State to the District of Columbia; United States v. Ames,
.95 Fed. 466, holding territories are not "States" within lottery act, 28
Stat. 963; Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31 Pac. 991,
arguendo; New Orleans v. Winter, 1 Wheat. 94, 4 L. Ed. 46, holding a
territory not a State for purpose of suing in United States courts; Scott
2 Cr. 445-453 NOTES ON U. S. REPORTS. 216
V. Jones, 5 How. 377, 12 L. Ed. 197, holding that Supreme Court of United
States has not jurisdiction to try the question as to whether a political
body passing a law was a State; Barney v. Baltimore City, 6 Wall. 287,
18 L. Ed. 827, under facts similar to principal case; dissenting opinion in
Texas v. White, 7 Wall. 737, 19 L. Ed. 241, majority holding citizens of
Texas during reconstruction period to be citizens of "a State''; Railroad
Co. V. Harris, 12 Wall. 86, 20 L. Ed. 359, holding railroad company extend-
ing into the District of Columbia amenable to courts of the District for
injuries to a citizen of Washington; Metropolitan R. -R. v. District of
Columbia, 132 U. S. 9, 33 L. Ed. 234, 10 Sup. Ct. 22, but holding District
to be a municipal corporation capable of suing and being sued; Hooe v.
Jamieson, 166 U. S. 397, 398, 41 L. Ed. 1050, 17 Sup. Ct. 597, holding citi-
zen of District cannot sue, although joined with competent person as
coplaintiff; Picquet v. Swan, 5 Mason, 65, Fed. Cas. 11,134, as to action
by alien against citizen of District; Prentiss v. Brennan, 2 Blatchf. 164,
Fed. Cas. 11,385, and in Cissel v. McDonald, 16 Blatchf. 152, Fed. Cas.
2729, denying petition for removal from State court to Circuit Court, of
action by citizen of District against a subject of Great Britain; Land Co.
y. Elkins, 22 .Blatchf. 204, 20 Fed. 546, where necessary defendant was
citizen of District'; Watson v. Brooks, 8 Sawy. 320, 321, 13 Fed. 543, 544,
as to citizens of a territory; Darst v. City of Peoria, 13 Fed. 564, as to
removal to Circuit Court on application of citizen of territory; Seddon v.
Virginia etc. Co., 36 Fed. 8; suit against corporation and directors is not
removable where one of directors is citizen of District of Columbia; Myer
V. Herrera, 41 Fed. 66, holding Circidt Court has no jurisdiction of action
between citizen and alien temporarily resident in same State; Dunton v.
Muth, 45 Fed. 394, as to removal from territorial court ; Qrether v. Wright,
75 Fed. 753, 43 U. S. App. 770, upholding power of Congress to exempt
bonds of District of Columbia from taxation within the United States;
dissenting opinion in McElvain v. Mudd, 44 Ala. 65, majority holding Con-
federate State after ordinance of secession to be a State within meaning
of constitutional prohibition on States against impairing obligation of con-
tracts ; Shorter v. Cobb, 39 Ga. 299, holding that United States courts will
not review statute passed by State when in rebellion; Binney's Case, 2
Bland Ch. 147, holding citizenship of individual members of corporation
must govern jurisdiction; Texas Pacific Ry. Co. v. Gay, 86 Tex. 582, 26
S. W. 601, to the point that United States Circuit Court could not have
jurisdiction on grounds of diverse citizenship, over a corporation chartered
by act of Congress; Draper's Exrs. v. Gorman, 8 Leigh (Va.), 631, 640,
holding that act of Congress declaring effect of judgments rendered in
State courts did not apply to those rendered in courts of District of
Columbia; Smith v. United States, 1 Wash. Ter. 269, holding a territory
not a State; dissenting opinion, Newcomb v. Smith, 2 Pinn. 143, majority
holding constitutional authorization of the taking by States of private .
property for public use, to extend to territories. The rule is also- approved .
in the following cases, discussing the general subject: McNutt v. Bland,
2 How. 23 , 11 L. Ed. 164 ; Glover v. Shepperd, 11 Biss. 576, 15 Fed. 836 ;
Laird v. Insurance Co., 44 Fed. 712; Calhoun v. Calhoun, 2 S. C. 295.
V
217 HEPBWRN V. ELLZEY. 2 Cr. 44&-453
See also State t. White, 23 Tex. Supp. 613; State ▼. Burke, 33 La. Ann.
516.
Limited in Geofroy v. Riggs, 133 U. S. 269, 38 L. Ed. 645, 10 Sup. Ct.
297, holding the District of Columbia to be one of the ''States of the
Union," within meaning of treaty r^ulating taking of land by descent;
Talbott V. Silver Bow Mining Co., 139 U. S. 444, 35 L. Ed. 212, 11 Sup.
Ct. 596, holding act of Congress providing that States may tax national
banks extends to territories; The UUock, 9 Sawy. 642, 19 Fed. 212, The
Paiuuna, Deady, 33, Fed. Cas. 10,702, and In re Bryant, Deady, 121, Fed.
Cas. 2067, holding term "State" includes territory under act of Congress
regulating navigation; Neil v. Wilson, 14 Or. 415, 12 Pac. 812, holding
power of territory to r^ulate pilotage co-ordinate with that of State,
/
NOTES
OKTHX
UNITED STATES REPORTS.
m CBAKCH.
\
3 Cr. 1-73, 2 L. Ed. Si7. HUIDEKOFEB ▼. DOUOZJUM.
IiegiaUtiTe contracts sbould be constraed accoidlng to ordinftrj mles of
cttDtnctiial constrnctioiL
Cited in Leasure y. Wilson, 3 Wntts, 174, and Ross v. Barker, 5 Watts,
397, following rale; dissenting opinion in Charles River Bridge v. Warren
Bridge, 11 Pet. 611, 9 L. Ed. 849, majority holding a right could not be
implied, because not expressly forbidden; dissenting opinion in Rich-
mond etc. R. R. Co. V. Lonisa R. R. Co., 13 How. 86, 14 L. Ed. 62, major-
ity eonstming stipulation restraining State, strictly; in United States v.
Arredondo, 6 Pet. 749, 8 L. Ed. 568, holding ''in possession'' of land satisfied
by oonstractiye possession; State v. Real Estate Bank, 5 Ark. 599, 41 Am.
Dec. 112, holding charter of corporation forfeited by assignment of all its
property; Jasper v. Quarles, Hardin, 477, holding right of settler dates
from commencement of services necessary to procure a certificate; Stark
V. Mather, Walk. (Miss.) 193, if government gives title to another he is
trustee for first grantee; Leavitt v. Lovering, 64 N. H. 608, 15 Atl. 415,
rejecting words to which no effect consistent with statute could be given ;
Thompson v. People, 23 Wend. 579, in construing act giving right to build
bridge; Durer v. Boyd, 1 Serg. & R. 207, holding a person obtaining an-
other's patent as trustee for him; Barnes v. Irvine, 5 Watts, 503, as to
settlement of land; Dodson v. Cocke, 1 Overt. 322, subsequent grantee
cannot avoid prior grant for fraud against State; Weatherhead v. Bled-
soe, 2 Overt. 374, 379, construing statute of limitations; Pinson v. Har-
kins, 1 Yerg. 330, 339, treating State as an individual; as also in Neal v.
E. T. College, 6 Yerg. 194; Thompson v. Phillips, Bald. 385, Fed. Cas.
13,974, arguendo.
Terms of law requiring two incompatible things must be reconciled witli
least possible change in meaning, and to give expression to general intent.
Approved in State v. Earnhardt, 170 N. C. 727, 86 S. E. 961, where
statute dictated uniforms of convicts.
(219)
3 Cr. 73-92 NOTES ON U. S. REPORTS. - 220
3 Or. 73-92, 2 L. Ed. 370, UNITED STATES v. HOOE. ^
Theie most be general yolantary awrignmeiit to render delvtor insolvent
wltliin bankrupt act.
Approved in In re McCrtun, 214 Fed. 210, 130 C. C. A. 555, holdinj^
not general assignment where part of property only assigned; Missouri-
American Electric Co. v. Hamilton-Brown -Shoe Co., 165 Fed. 288, 91
C. C. A. 251, holding that assignment of part of properties of corpora-
tion is not a general assignment so as to bring it within bankruptcy-
laws; The United States v. The Marshalt etc., 2 Brock. 491, Fed. Cas.
15,727, if inconsiderable part of property is retained, it is question for
court: United States v. Lan^on, 5 Mason, 284, Fed. Cas. 15,560, holding:
a smidl portion left out by mistake does not defeat priority; United
States V. McLellan, 3 Sumn. 352^ Fed. Cas; 15,698, holding conveynnce
of all property, but in distinct parts, is good, unless especially to evade
priority; Conard v. The Atlantic Ins. Co., 1 Pet. 439, 7 L. E4. 212, hold-
ing that a bona fide general assignment defeats priority; Huntley y.
Kingman, 152 U. S. 533, 38 L. Ed. 548, 14 Fed. Cas. 690, bona fide as-
signment of part of a debtor's property is valid; Bush v. United States,
8 Sawy. 330, 14 Fed. 323, holding confession of judgment is not a volun-
tary assignment; Holt v. Bancroft, 30 Ala. 201, holding an assignment
of all his property, with fraudulent intent, but by distinct deeds, a gen-
eral assignment; Campbell v. The Colorado Coal etc., 9 Colo, 66, 10 Pac.
252, holding partial assig^nment valid; McLean v. Rankin, 3 Johns. 374,
holding plaintiff must show that the shipment constituted the whole of
defendant's property; Ewing v. Runkle, 20 111. 462, both parties must
have fraudulent intent, to invalidate a conveyance; United States v. Bank
of U. S., 8 Rob. (La.) 416, holding priority not defeated by partial assign-
ments of all property; as also in Marshall v. Barclay, 1 Paige Ch. 161;
Willing V. Bleeker, 2 Serg. & R. 225, and Downing v. Kintzing, 2 Serg.
& R. 337, two assignments held a general assignment; Mussey v. Noyes,
26 Vt. 473, holding partial assignment valid; Stanley v. Robbins, 36 Vt.
429, holding a lease not an assignment; United States v. Couch, 25 Fed.
Cas. 674, holding assignment of property of firm and one partner, not
enough to give priority to United States; United States v. Wood, 28 Fed.
Cas. 753, holding partial assignment gives no preference; dissenting opin-
ion in Winner v. Hoyt, 66 Wis. 247, 28 N. W. 390, majority holding where
all ppoi)erty was transferred by different mortgages, it was general assign-
ment.
Distinguished in Mc Arthur v. Chase, 13 Qratt. 691, holding "insolvency"
in that statute meant insufficient property to pay debts; Ex parte Hull,
12 Fed. Cas. 856, defining insolvency in statute; Thelusson v. Smith, 2
Wheat. 424, 4 L. Ed. 278, holding United States in cases specified in act
of 1799, has preference over judgment lien.
Mortgagor's remaining in poseeaelon of property is i^per and not evidence
.of ftand.
Cited in Almy v. Wilbur, 2 Wood. & M. 388, Fed. Cas. 256, holdin*? pos-
session by mortgagor not evidence of fraud; Bingham v. Frost, 6 Bank.
221 UNITED STATES v. HOOE. * 3 Cr. 73-92
Beg. 131y 3 Fed. Cas. 401^ holding that word ''conveyance'' includes a
mortgage; Malone v. Hamilton, Minor, 289, where the deed contained a
power of sale, and surplns was to he paid to mortgagor; The Planters'
etc. Bank of Mohile v. Willis & Co., 5 Ala. 780, where mortgagor re-
tained possession of the chattel; Hempstead v. Johnston, 18 Ark. 134, 65
Am. Dec. 467, holding grantor's remaining in possession does not in-
vaKdate trust deed; Walters v. Whitlock, 9 Fla. 102, 76 Am. Dec. 613,
holding whether retention of possession of a chose in action by an assignor
is fraud, is a question of fact; Suiter v. Turner, 10 Iowa, 523, holding
retention of possession of realty by grantor no evidence of fraud; Bank
of Commerce v. Payne, 86 Ky. 464, 8 S. W. 862, holding whether the
conveyance is fraudulent depends on intent; Lunt v. Whi taker, 10 Me.
314, holding where mortgagor retained possession of horse, mortgagee had
good title against a purchaser; Wilson v. Russell, 13 Md. 530, 71 Am. Dec.
648, holding that mortgagor's remaining in possession does not invalidate
deed; Dawes v. Cope, 4 Binn. 265, holding delivery of a bill of lading is
a sufficient transfer of possession; dissenting opinion in Wolf v. Farrell,
3 Brev. 76, majority holding title passed, though mortgagor of chattel
retained possession; Rose v. Burgess, 10 Leigh (Va.), 197, holding mort-
gagor's retention of possession of chattels does not make it liable to his
creditors.
Distinguished in Fowler v. Merrill, 11 How. 394, 13 L. Ed. 748, where
mortgage was recorded; In re Hussman, 2 Bank, Reg. 140, 12 Fed. Cas.
1076, holding sale without change of possession was void against creditors ;
Merrill v. Dawson, Hempst. 603, 616, Fed. Cas. 9469, where sale was held
fraudulent per se; Cobum v. Pickering, 3 N. H. 425, 14 Am. Dec. 878,
holding retention of possession of chattel after absolute sale is prima
facie evidence of fraud ; Clow v. Woods, 5 Serg. & R. 284, 9 Am. Dec. 854,
holding mortgagor's continuing in possession fraudulent per se.
Mortgagor retaining x)ossession as a fraud on creditors. Note, 18
E. R. 0. 56.
Mortgage to secure future advances Is valid.
Approved in In re Sunflower State Refining Co., 183 Fed. 838, holding
mortgage made by corporation to secure future issue of bonds good as
against lien accruing afterward, but before bonds are issued; Courier
Joomal Job Printing Co. v. Schaefer-Meyer Brew. Co., 101 Fed. 705, hold-
ing future advance mortgage constitutes continuing security up to amount
fixed; Lawrence v. Tucker, 23 How. 27, 16 L. Ed. 479, United States v.
Lennox, 2 Paine, 183, Fed. Cas. 15,592, and Leeds v. Cameron, 3 Sumn.
492, Fed. Cas. 8206, all following rule; Turnbull v. Thomas, 1 Hughes,
176, Fed. Cas. 14,243, holding a deed of trust for future advances a good
* lien ; Perkins & Elliot v. Mayfield, 5 Port. 187, where deed was given to
secure one against the consequences of suretyship; Allen v. Montgomery
R. B. Co., 11 Ala. 452, holding deed of real estate for security of bonds
to be issued not void per se; as also in Tully v. Harloe, 35 Cal. 309, 95
Am. Dec. 105; Peters v. Goodrich, 3 Conn. 152, holding mortgage to
secure an indorser valid; Crane v. Deming, 7 Conn. 397, mortgage for
3 Cr. 73-92 ' NOTES ON U. S. REPORTS. \ 222
future advances held good, where advancements were made after subse-
quent mortgages; Hubbard v. Savage, 8 Conn. 220, where mortgage to
secure against future liabilities was held good; Speer v. Skinner, 35 111.
293, sustaining mortgage for future advances ; as also in Collins v. Carlisle,
13 111. 259; Stewart v. English, 6 Ind. 182, where a bona fide conveyance
to pay debts was sustained; Grifiith v. Bank, 6 Gill. & J. 436, where deed
to indemnify indorsers was held good as against creditors; Commercial
Bank v. Cunningham, 24 Pick. 274, 35 Am. Dec. 323, holding like mortgage
good; Robins v. Embry, 1 S. & M. Ch. 267, holding assignment not vitiated,
because for future advances; Boisregard v. Wall, 1 S. & M. Ch. 430, hold-
ing mortgages given to secure debts of a partnership valid; as also in
James v. Morey, 2 Cow. 292, 14 Am. Dec. 485 , Hendricks v. Robinson, 2
Johns. Ch. 308, holding bona fide assignment by debtor in insolvent cir-
cumstances for future advances good; Walker •v. Snediker, 1 Hoff. Ch.
146, holding such a mortgage valid, "but future liabilities not embraced by
a subsequent parol agreement ; Truscott v. King, 6 N. Y. 159, holding when
a judgment to secure future advances has been paid, it cannot be set up
for subsequent -advances as against an intervening encumbrancer; Robin-
son V. Williams, 22 N. Y. 383, holding such a mortgage is good as against
creditor by judgment recovered before such advances became due; Young
V. Wilson, 27 N. Y. 363, holding mortgage to secure liabilities, though not
specifying amount, was certain enough; Sabin v. Columbia Fuel Co., 25
Or. 24, 42 Am. St. 7.61, 34 Pac. 695, holding mortgage valid though it may
subsequently turn out that, at the time, mortgagor was unable to pay all
his debts; McGavock v. Deery, 1 Cold. 270, holding assignment for future
advances valid; McCarty v. Chalfant, 14 W. Va. 547, holding deed of
trust for future advances valid.
Distinguished in Craig v. Tappin, 2 Sand. Ch. 84, mortgage there not
reciting its object.
Validity of mortgages to secure future advances. Note, 20 Am. Dec.
659.
United States is entitled to priority of payment, but has no lien.
Approved in People 's Nat. Bank v. Corse, 133 Tenn. 725, 182 S. W. 918,
holding priority given United States by statute cannot defeat bona fide
lien; dissenting opinion in New York Terminal Co. v. Gaus, 204 N. Y. 523,
98 N. E. 15, majority holding lien for taxes superior to lien of mortgage;
Beaston v. Farmers' Bank of Delaware, 12 Pet. 134, 9 L. Ed. 1029, holdings
an attachment of an individual not defeated by a subsequent attachment
of the United States; In re Hambright, 11 Fed. Cas. 316, 2 Bank. Reg.
158, holding creditor's valid prior lien prevailed over costs of bankruptcy;
United States v. The Canal Bank, 3 Story, 81, Fed. Cas. 14,715, this
priority rests on statute; Postmaster-General v. Robbins, 1 Ware, 169,
Fed. Cas. 11,314, holding that widow's allowance took precedence; Perry
Manufacturing Co. v. Brown, 2 Wood. & M. 454, Fed. Cas. 11,015, holding
that where proceedings in insolvency advanced to appointment of a mes-
senger, this inchoate title was not defeated by a subsequent lien; United
States V. Wilkinson, 5 Dill. 278, Fed. Cas. 16,695, where a purchaser under
223 UNITED STATES v. HOOE. 3 Cr. 73-92
an attachment took free from preference; United States v. McLellan, 3
Sumn. 353, Fed. Cas. 15,698, holding conveyance of all his property to
creditors is not a voluntary assignment within the statute; United States
V. Hawkins, 4 Mart. N. S. (La.) 330, holding United States has not pref-
erence in an insolvent estate ahove mortgage creditor; Farmers' Bftnk
V. Beaston, 7 Gill & J. 426, 28 Am. Dec. 229, an attachment, operating as
a lien, takes priority over United States where receiver was appointed;
Watkins v. Otis, 2 Pick. 102, holding a foreign attachment not such a
one as to give United States priority; Anderson v. State, 23 Miss. 476,
holding United States has no lien; Finney v. Steamboat Fayette, 10 Mo.
619, to point that United States has lien on conamencement of suit; United
States V. Crookshank, 1 Edw. Ch. 237, holding priority does not exist in
relation to real estate descended to heirs; Bank of Muskingum v. Car-
penter, 7 Ohio (pt. I), 70, 28 Am. Dec. 620, holding an equitable mortgage
to be preferred to a judgment of later date; Wileocks v. Walm, 10 Serg.
6 R. 380, holding a mortgage prior to general assignment cuts off prefer-
ence; State V. Harris, 2 Bail. 600, holding the State not entitled to prior-
ity at common law; Ex parte Waddell, 28 Fed. Cas. 1314, holding decree
of bankruptcy creates no lien, estate vests in assignee; Savings Society
V. Multnomah, 169 U. S. 428, 42 L. Ed. 805, 18 Sup. Ct. 395, holding that
a mortgage conveys an interest in land and may be taxed; United States
V. Areola, 24 Fed. Cas. 850, holding interest of mortgagee is distinct from
that of mortgagor; note to 4 Wheat. 120, 4 L. Ed. 530, on this subject;
dissenting opinion in Winner v. Hoyt, 66 Wis. 247, 57 'Am. Bep. 263, 28
N*. W. 390, majority holding separate assignments covering all his prop-
erty are a general assignment; Conard v. Atlantic Ins. Co., 1 Pet. 441,
7 L. Eft. 213, holding priority of United States will not divest a specific
lien such as a mortgage; Thelluson v. Smith, 1 Pet. C. C. 196, 198, Fed.
Cas. 13,878, holding priority of United States does not cut off a judgment
creditor.
Distingnished in Frame v. Bivens, 189 Fed. 790, holding mortgage is
sufficient conveyance to defeat right of priority; State v. Mississippi Val-
ley Trust Co., 209 Mo. 492, 108 S. W. 102, holding right of priority does
not exist against estate where estate is solvent; Advance Thresher Co. v.
Beck, 21 N. D. 59, Ann. Caa. 1913B, 517, 128 N. W. '316, holding State
statute gives tax lien priority over all other liens affecting same property;
S. H. Hawes & Co. v. Wm. R. Trigg Co., 110 Va. 206, 65 S. E. 554, holding
materialmen's lien on ships sux)erior to lien to United States for install-
ments paid during construction.
Priority of claims for taxes. Note, 29 L. B. A. 280.
Priority of State of United States in payment. Note, 29 L. B. A.
229, 283.
Whether costs may be awarded against United States, query.
Approved in District of Columbia v. Lyon, 7. Mackey (D. C), 224, hold-
ing costs not allowed against District of Columbia in criminal action in-
stituted by it, when defendant is acquitted; Hath way v. Roach, 2 Wood.
& M. 68, Fed. Cas. 6213, and Stanley v. Schwalby, 162 U. S. 272, 40 L. Ed.
3 Cr. 92-139 NOTES ON U. S. REPORTS. 224
966, 16 Sup. Ct. 761, holding United States are not liable to judgment for
costs; Carlisle v. Cooper, 64 Fed. 474, 26 U. S. App. 240, holding in ab-
sence of legislation by Congress, costs cannot be awarded against United
States; Curtis v. Banker, 136 Mass. 360, refusing to give costs against the
United States; United States v. Davis, 54 Fed. 153, 12 U. S. App. 47,
allowing costs, by statute, in proceeding to recover excessive duties.
Costs where United States is a party. Note, 16 Am. Dec. 407.
Canoe may be removed ftom Circuit to Supreme Court by irtit of error.
Cited to this point in Harrison v. Burgess, 1 Hawks, 392.
Distinguished in The San Pedro, 2 Wheat. 143, 4 L. Ed. 206, holding
cause could not be removed by writ of error.
•
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 842, 846.
Effect of insolvency statutes on mortgage or sale preferring creditors.
Note, 37 L. B. A. 485.
Miscellaneous. Cited in Enders v. Swayne, 8 Dana, 111, but not in
point. Cited generally in United States v. Wilkinson, 5 Dill. 277, Fed.
Cas. 16,695.
3 Cr. 92-06, 2 I*. Ed. 876, PEYTON v. BBOOKB.
Judgment for costs includes all costs, prior or subsequent to its rendition.
Cited in Blake v. Hawkins, 19 Fed. 205, holding that a judgment opens
to include commissions of clerk; Windrum v. Parker, 2 Leigh (Va.), 366,
holding a party having taken one execution can take another at his own
costs.
3 Cr. 97-139, 2 L. Ed. 377, UIMBEBT v. PAINE.
A devise of all one's estate carries fee without words of inlieiltaace,
Bilger v. Nunan, 199 Fed. 660; 118 C, C. A. 23, holding that devise giv-
ing wife all estate, both real and personal, to have, hold, use and dispose
of, with full power and authority to sell, despite attempted disposition
of any remainder at her death, carries fee; Clay v. Chinault, 108 Ky.
92, 55 S. W. 733, holding absolute power of disposition when contained
in will conveys fee ; Roberts v. Lewis, 153 U. S. 377, 38 L. Ed. 750, 14 Sup.
Ct. 946, construing the words "all my estate, real and personal," etc.,
in a devise to carry a fee; Denechand v. Berry, 48 Ala. 605, construing
words ''all property" in a statute to mean everything capable of owner-
ship; Robinson v. Randolph, 21 Fla. 637, 644, holding word ''property"
in a devise carries fee; Fogg v. Clark, 1 N. H. 167, holding "all my
landed property" in a will conveyed a fee; Den v. Schenck, 8 N. J. L.
39, where words "all my real estate" were followed by qualifying clause,
held devisee took fee subject to qualification; Jackson v. Robins, 16 Johns.
588, a devise of "all his estate" to B, and in case of her death without
alienation to C B, takes a fee ; Bradstreet v. Clarke, 12 Wend. 661, devise
to executors of my "landed estate" gives a fee; Fox v. Phelps, 20 Wend.
225 HODGSON v. BUTTS. 3 Cr. 140-158
445, holding a devise "of my estate" carries fee; dissenting opinio"irin
French v. M'llhenny, 2 Binn, 19, majority held a devise "of his planta-
tion" carried fee; Campbell v. Carson, 12 Serg. & R. 55, holding a devise
of *'all lands to be by her fully possessed" carried fee; dissenting opinion
in Steele v. Thompson, 14 Serg. & R. 92, majority held devise of "planta-
tion" carried life estate; Waterman v. Greene, 12 R. I. 484, holding devise
of my "mill, land," etc., took fee; Troth v. Robertson, 78 Va. 55, "estate"
in statute includes real and personal property; Byers v. Fowler, 12 Ark.
2S6, 54 Am. Dec. 288, arguendo.
Distinguished in Wright v. Denn, 10 Wheat. 235, 6 L. Ed. 311, where
words **all the rest of my lands and tenements" carried only a life
estate; Bcal v. Holmes, 6 Har. & J. 225, holding ''all thiit tract of land"
carried only a life estate.
Devise or bequest for life with power of disposal. Note, 189 Am. St.
Rep. 115.
Iiittle aid can be had tram adjudged casee in construing wllla.
Cited to this pbint in Rosenberg v. Frank, 58 Cal. 411, and Le Breton
V. Cook, 107 Cal. 416, 40 P^. 553.
Meaning of adjudged words should be adhered to In construing will.
Approved in Kean v.^Roe, 2 Harr. (Del.) 116, 29 Am. Dec. 848, giving
technical words in will their technical meaning.
Pxtmary purpose In Interpretation of wills is to ascertain testator's intent.
Approved in In re Henderson's Estate, 161 Cal. 357, 119 Pac. 498, holding
loose use by testator of technical terms does not prevent distribution of
realty as well as personalty to persons mentioned as "residuary legatees";
In re Lotzgesell 's Estate, 62 Wash. 359, 113 Pac. 1108, where in clause dis-
posing of livestock, agricultural implements, etc., words "and all personal
property" were used, and testator left money not otherwise disposed of,
this clause included it.
Requisites to disherison of heir. Note, 9 £. R. 0. 297.
Alien's right to inherit. Note, 81 L. B. A. 178.
Miscellaneous. Cited in Boone v. Chiles, 10 Pet. 212) 9 L. Ed. 400,
apparently not in point; Johnson v. Georgia Loan etc. Co., 141 Fed. 597,
bona fide purchaser of lands previously conveyed by grantor must allege
and prove want of notiee and payment of purchase money independently
of recitals in deed.
S Cr. 140-168, 2 I*. Ed. 391, HOXKWON T. BUTTS.
Chattel mortgagee of Tessel acknowledged before bat two witnesses only
Is Toid as to creditors and subseaoent purchasers.
Approved in Hobbs v. Young, 30 Okl. 276, 120 Pac. 948, chattel mort-
gage not having been recorded prior to purchase by another of same
chattels, question of consideration paid for purchase cannot be entered
into; Bank of the United States v. Lee, 13 Pet. 122, 10 L. Ed. 89, holding
1—16
/
3 Cr. 159-174 NOTES ON U. 8. REPORTS. 226
a deed of slaves to wife, duly recorded good against subsequent creditors ;
Killough V. Steele, 1 Stew. & P. 267, 279, where an unrecorded ehattd
mortgage upon a valuable consideration was held not within the statute of
frauds; Baker v. Washington, 5 Stew. & P. 149, holding a mortgage upon
valuable consideration need not be registered; Rushin v. Shields, 11 Gku
640, 56 Am. Dec. 438, holding the irregular registration of a deed is not
even notice; Shepherd v. Burkhalter, 13 Ga. 449, 58 Am. Dec. 526, holding
a recorded instrument to be constructive notice only so far as it appears
on the record; Walker v. Gilbert, 1 Freera. Ch. 93, holding a deed not
duly registered not notice; Smith v. Chamberlain, 2 N. H. 441, refusing
to extend statute, by requiring ''competent" witnesses^; Gooding v. Riley,
50 N. H. 409, restricting it to subsequent creditors without notice; Simon
V. Brown, 3 Yeates, 187, 2 Am. Dec. 368, holding an unauthorized record-
ing is no evidence of notice; Heister v. Fortner, 2 Binn. 44, 4 Am. Dec.
420, holding registry of a defectively proved deed is not constructive
notice; Johnson v. Slater, 11 Gratt. 325, held a deed not duly recorded
is void as to creditors; Wolf v. Farrell, 3 Brev. 78, arguendo; The Bramen,
Brown Adm. 162, Fed. Gas. 1805, holding mortgagee is ^iftble for mate's
wages. .
Distinguished in McGregor v. Hall, 3 Stew. So P. 404, where mortgagu
was left to be recorded; Hobson v. Eassam, 8 Ala. 362, holding valid a
deed of trust not recorded in statutory form. .
Necessity and sufficiency of acknowledgment of chattel mortgage.
Note, Ann. Oas. 1915D, 304, 306.
Master of Teasel lias rlglit to retain f relgbt for debts dne blm.
Cited in The Ship Packet, 3 Mason, 264, Fed. Gas. 10,654, holding
master has lien on freight for advances made abroad; Snow v. (Goodrich,
14 Me. 239, holding master pledging his individual credit to obtain cargo
has lien on it; IngersoU v. Van Bokkelein, 7 Cow. 679, holding master
has lien on freight for liability incurred; Starr v. Knox, 2 Conn. 228,
holding register of ship is prima facie evidence of ownership.
Distinguished in Van Bokkelein v. IngersoU, 5 Wend. 325, holding
master has no lien on freight for wages; Shaw v. Godkin, 7 N. H. 20,
master has no lien on ship's earnings as general creditor.
3 Or. 159-174, 2 L. Ed. 397, UNITED STATES T. MOS&
Supreme Court lias appellate power only in tlie cases provided for by
OongtesB.
Approved in United States v. Dickinson, 213 U. S. 100, 68 L. Ed. 718, 29
Sup. Ct. 485, certiorari cannot be granted in criminal case at instance of
United States whatever questions involved, nor for correction of mere
error; Fields v. United States, 205 U. S. 297, 51 L. Ed. 811, 27 Sup. Ct. 543,
holding that where matter in dispute involves merely deprivation of com-
missions of receiver and fine, certiorari will not issue; New v. Oklahoma,
195 U. S. 256, 49 L. Ed. 184, 25 Sup. Ct. 68, Supreme Court cannot review
Oklahoma judgment in capital case; Bradford v. Southern Ry. Co., 195
227 UNITED STATES v. MORE. 3 Cr. 159-174
U. S. 250, 49 L. Ed. 181, 25 Sup. Ct. 55, writ of error in forma pauperis
cannot be prosecuted from Circuit Court of Appeals; Thatcher v. United
States, 212 Fed. 805, 129 C. C. A. 255, holding that matter involving ques-
tion of disbarment was reviewable on writ of error, and not by appeal;
£x 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 convicted of capital crime; United States v. Mar
Ying Yuen, 123 Fed. 160, appeal by United States does not lie from com-
missioner's order discharging Chinese arrested for being unlawfully in
this country ; dissenting opinion in Ex parte France, 176 Ind. 127, 95 N. E.
535, majority holding void act of 1911, defining jurisdiction of Supreme
Court and making decisions of appellate coxctt final in certain cases ; In re
Kaine, 14 How. 120, 14 L. Ed. 352, holding it has no power to review deci-
sion of Circuit Court remanding prisoner on writ of habeas corpus in
absence of statute; dissenting opinion in Ex parte Bradley, 7 Wall. 384,
386, 19 L. Ed. 221, majority holding they had right to review, by writ of
mandamus, disbarment proceedings ; Baker v. Biddle, 1 Bald. 403, 406, Fed.
Cas. 764, holding United States courts will not sustain suits in equity
where the remedy at law is adequate ; dissenting opinion in Ex parte Crane,
5 Pet. 200, 204, 219, 8 L. Ed. 96, 98, 103, majority holding they had right
to issue mandamus compelling Circuit Court to sign bill of exceptions;
dissenting opinion in Ex parte Lange, 18 Wall. 185, 205, 21 L. Ed. 882, 888»
majority holding Supreme Court will, by writ of habeas corpus, see if
Federal court had authority over prisoner; Forsyth v. United States, 9
How. 572, 13 L. Ed. 263, where right to review criminal cause had been
given J)y law; dissenting opinion in Decatur v. Paulding, 14 Pet. 603, 607,
10 L. Ed. 612, 614, majority holding Supreme Court has right to mandamus
ministerial Federal officer; Ex parte Watkins, 3 Pet. 201, 7 L. Ed. 652,
holding this court cannot revise proceeding of Circuit Court in criminal
cases; Daniels v. Railroad Co.,, 3 Wall. 254, 18 L. Ed. 225, holding appel-
late jurisdiction depends on act of Congress ; dissenting opinion in Tennes-
see V. Davis, 100 U. S. 283, 290, 25"1j. Ed. 657, 659, majority held provision
of Constitution extending judicial power of United States "to all cases
in law and equity" embraces criminal cases; United States v. Sanges, 144
U. S. 319, 36 L. Ed. 449, 12 Sup. Ct. 612, holding writ of error does not
lie in behalf of United States in a criminal case; Cross v. United States,
145 U. S. 574, 36 L. Ed. 822, 12 Sup. Ct. 843, holding a statute permitting
appeals from District and Circuit Courts in capital cases, does not em-
brace Supreme Court of District of Columbia; Cross v. Burke, 146 U. S.
87, 36 L. Ed. 898, 13 Sup^ Ct. 23, holding this court has no jurisdiction
over judgment of court of District of Columbia on habeas corpus; Chap-
man V. United States, 164 U. S. 447, 448, 450, 41 L. Ed. 508, 509, 17 Sup.
Ct- 77, 78, holding they had right to review, by writ of error, judgment
of Court of Appeals oi District of Columbia in a criminal case; as also in
United States v. Plumer, 3 Cliff. 26, Fed. Cas. 16,055, and Humphrey v.
State, Minor, 65 ; Warner v. Steamer Uncle Sam, 9 Cal. 736, holding failure
of Congress to provide for appeals from State court does not affect their
original jurisdiction; Laverty v. Duplessis, 3 Mart. (0. S.) 49, holding
\ -
3 Cr. 179-180 NOTES ON U. S. REPORTS. 250
S Cr. 179-180, 2 L. Ed. 404, BAY v. LAW.
Decree of sale, after f ore<dofnire, is final, from wlilch appeal lies.
Approved in Chase v. Driver, 92 Fed. 784, holding decrees ordering and
confirming sales of property are final and appealable; Thomson v. Dean,
7 Wall. 346, 19 L. Ed. 95, decree directing transfer of stock, and account
of amount paid and to be paid for same, is final; Marin v. Lalley, 17
Wall. 17, 21 L. Ed. 596, holding from proceeding in its nature similar to
foreclosure of mortgage, appeal lies; Whiting v. Bank, 13 Pet. 15, 10 K Ed.
38, holding a decree of foreclosure and sale a final decree; Bronson v.
Railroad Co., 2 Black, 531, 17 L. Ed. 360, holding right to appeal cannot
be suspended by cross-bills between others; The Steamboat New England,
3 Sumn. 507, Fed. Cas. 10,151, holding one party may appeal from decree
of sale, or wait until definitive decree; Railroad Co. v. Swasey, 23 Wall.
409, 23 L. Ed. 137, and Grant v. Insurance Co., 106 U. S. 431, 27 L. Ed.
238, 1 Sup. Ct. 416, restricting appeal to case where amount due was
determined ; Chicago etc. R. R. v. Fosdick, 106 U. S. 70, 27 L. Ed. 55, hold-
ing decree final, though it does not exhaust equity of redemption; Key-
stone Iron Co. V. Martin, 132 U. S. 93, 96, 33 L. Ed. 276, 277, 10 Sup, Ct.
33, 34, holding granting of perpetual injunction and ordering an account
not a final decree; McGourkey v. Toledo & Ohio Ry., 146 U. S. 545, 36
L. Ed. 1083, 13 Sup. Ct. 172, decree final if there is a ministerial reference,
not if judicial; Desvergers v. Parsons, 60 Fed. 150, 23 U. S. App. 239,
decree terminating litigation on its merits, leaving nothing but its execu-
tion, is final; Weatherford v. James, 2 Ala. 176, though there be a refer-
ence to compute damages, decree is final; Ex parte Crittenden, 10 Ark.
356, 370, decree of dower, appointing commissioners to ascertain inter-
mediate rents, not final; Farmers' Loan etc. v. Canada etc. Ry. Co., 127
Ind. 256, 26 N. E. 785, decree of sale, proceeds in court, subject to lien-
holders, is conclusive upon the parties; Ringgold's Case, 1 Bland Ch. 17,
discussing whether an appeal from ex parte proceedings lies, not decided;
Benedict v. Thompson, 2 Doug. (Mich.) 303, holding order for appraise-
ment of mortgaged premises final; Cromwell v. Craft, 47 Miss. 59, hold-
ing decree to sell specified articles unless claim is paid, is final; Baker v.
Lehman, Wright, 523, holding decree for sale of mortgaged premises final;
Hey V. Schooley, 7 Ohio (pt. II), 49, holding decree to sell, not opened by
appeal from decree confirming; Royall v. Johnson,^ 1 Rand. 430, holding
decree as to one defendant final, though action is pending as to rest;
Thorntons v. Fitzhugh, 4 Leigh (Va.), 216, holding decree, with reserva-
tion of further decree if unavailing, is final; Core v. Strickler, 24 W, Va.
694, holding decree ascertaining amount of debts and ordering sale, final;
Suckley v. Rotchford, 12 Gratt, 70, 66 Am. Dec. 245, discussing point
generally.
Distinguished in Deslions v. La Campagnie Generate Transatlantique,
210 U. S. 113, 52 L. Ed. 982, 28 Sup. Ct. 664, holding that until nature of
and amounts of the claims involved are ascertained the decree was inter-
locutory; Lynham v. Hufty, 44 App. D. C. 594, holding that in divorce
order made before final decree awarding sum to wife to pay fee is final
adjudication of matter of fee ; The Palmyra, 10 Wheat. 504, 6 L. Ed. 376,
231 LEVY V. GADSBY. 3 Cr. 180-186
holding decree not final where damages were nnasaessed; Beebe v. Russell,
19 How. 286, 15 L. Ed. 669, holding appeal will not lie where there is a
reference to state an account; Burlington etc. Ry. v. Simmons, 123 U. S.
55, 31 L. Ed. 74, 8 Sup. Ct. 59, where no sale was ordered ; Gray v. Palmer,
9 Gal. 635, where partnership accounts remained to be taken; Cocke v.
Gilpin, 1 Rob. (Va.) 39, 40, holding decree not final where further action
of court is necessary ; Cent. Trust Co. v. Ry. Co., 89 Fed. 27, holding while
decree of foreclosure is final, it did not prevent purchaser from filing a
supplemental bill for an injunction restraining others from bringing suit
in State court attacking validity of decree.
S Cr. 180-186^ 2 Zi. Ed. 404, IiEVT T. GADSBY.
Court has eizdusive power of deciding whether written contract is osurlons.
Approved in Missouri etc. Ry. Co. v. United States, 178 Fed. 17, 101
C. C. A. 143, holding error to leave construction of written request to jury ;
Sea Ins. Co. v. Johnston, 105 Fed. 289, applying ride of principal case in
suit on insurance policy; Walker v. Bank, 3 How. 72, 11 L. Ed. 499, hold-
ing question of usury depended on writing is for court ; Buttrick v. Harris,
1 Biss. 445, Fed. Cas. 2256, holding court should construe instrument in-
directly involving usuiy; Qoddard v. Foster, 17 Wall. 142, 21 K Ed. 595,
where agreement was deduced from correspondence of parties; Higgins v.
McCrea, 116 U. 8. 682, 29 L. Ed. 768, 6 Sup. Ct. 662, where facts not dis-
puted, construction rules of a board is a question of law; Comfort v.
BftUingal, 134 Mo. 288, 35 S. W. 611, but if jury construed correctly judg-
ment will not be reversed; Archibald v. Thomas, 3 Cow. 289, court has
exclusive power to decide whether written contract is usurious; Morris v.
Ward, 36 N. Y. 595, construing grant; Dwight v. G^rmania Life Ins. Co.,
103 N. Y. 353, 67 Am. Rep. 734, 8 N. E. 658, contract of insurance ; Deni-
son V. Wertz, 7 Sei^. & R. 376, holding error to leave construction of
written instrument to jury; also Evans v. Negley, 13 Serg. & R. 220, and
McFarland v. Newman, 9 Watts, 59, 34 Am. Dec. 602; Reid v. Dodson, 1
Overt. \L2, as to military entry ; San Antonio v. Lewis, 9 Tex. 71, legal
effect of written evidence a matter of law ; Lloyd v. Scott, 4 Cr. C. C. 213,
Fed. Cas. 8434, and Insurance Co. v. Walsh, 18 Mo. 237, in general dis-
cussion.
Construction of writing, when question for court and when for jury.
Note, 69 Am. Dec. 464.
Usury is provable under general issue.
Approved in Ambler v. Ruddell, 17 Ark. 140, holding defense of usury
may be set up under general issue in action on oral promise, notwith-
standing statute; Stockham vl Munson, 28 111. 53, holding it is not neces-
sary to set up usury plea ; Fulton Bank v. Stafford, 2 Wend. 486 , Solomon
V. Jones, 3 Brev. 56, and Bank v. Evans, 9 W. Va. 382, holding usury may
be proved under general issue; Howard v. Thompson, 21 Wend. 334, hold-
ing in action of libel defendant may rest on probable cause, after abandon-
ing defense of justification; Irwin v. Bell, 1 Overt. ^6, holding plaintiff
failing to prove under special count may resort to general count*
3 Cr. 187-210 NOTES ON U. S. REPORTS. 232
Disting^aished in Little v. Riley, 43 N. H. 112, holding in suit on writ
of entry upon a mortgage, usury could not be set up under general issue;
Barbour v. Tompkins, 31 W. Va. 415, 7 S. E. 4, holding defense of usury
must be directly raised.
Miscellaneous. Cited in Oates v. National Bank, 100 U. 8. 249, 25 K Ed.
584, Atkinson v. Allen, 71 Fed. 59, 36 U. S. App. 265, Gittell v. Riley,
Hardin, 87 , Polk v. Robertson, 1 Overt. 457, in general discussion.
If borrower agrees to pay same rate of interest he receives on reloan by
himself, usury In second contaract makes first illegaL
Cited in Newman v. Williams, 29 Miss. 222, holding where one is to
receive more than the legal rate for forbearance, agreement is usurious;
Pfeister v. Building Assn., 19 W, Va. 718, holding if building association
advances money at legal rate to one paying highest premium, loan is
usurious.
Distinguished in Nichols v. Fearson, 7 Pet. 108, 8 L. Ed. 625, holding
sale of note by drawee at discount is not per se usurious; lOmball v.
Athenaeum, 3 Gray, 232, holding agreement to pay rate of interest and to
give creditor notes and pay him for disposing of them is not usurious.
3 dr. 187-192, 2 I.. Sd. 406, MABINE INS. OO. T. WILSON.
Surveyor's reporting vessel unsound, not refenring to time, will not dis-
charge policy*
Distinguished in Dorr v. Ins. Co., 7 Wheat. 614, 5 L. Ed. 537, this case
not resembling that in evidence or pleadings; as also in Watson v. Insur-
ance Company of North America, 2 Wash. C. C. 153, Fed. Cas. 17,284i
3 Or. 193-210, 2 L. Ed. 408, WILSON v. CODMAN.
Defendant not entitled to continuance upon death of plaintiff, bat may
insist on production of letters testamentary.
Cited in Alexander v. Patten, 1 Cr. C. C. 339, Fed. Cas. 171, and North
V. Clark, 3 Cr. C. C. 93, Fed. Cas. 10,308, holding administrator bound to
give oyer of his letters, whenever demanded, before expiration of time
to plead; Equitable Life etc. v. Trimble, 83 Fed. 87, 48 U. S. App. 569,
holding administrator may be substituted as plaintiff without filing sup-
plf^nental pleadings; Taylor v. Western Pacific R. R. Co., 45 Cal. 337,
upon plaintiff's death, his representative was substituted by ex parte order;
Dale V. Roosevelt, 8 Cow. 343, defendant may call upon administrator
d. b. n. to produce letters ; Hobbs v. Bush, 2 Dev. & B. 512, where husband
moves to be admitted as party, objections to validity of marriage must be
made then.
Immaterial averment in declaration need not be proved; such is an aver-
ment that note is ansiicned for value received.
Approved in Cabiness v. Brown, Minor, 42, where variance was imma-
terial and not misleading; Marr v. Plummer, 3 Me. 76, holding indorsee
of promissory note entitled to recover against maker, without alleging it
233 NOTES ON U. S. REPORTS. 3 Cr. 210-228
was made for valuable consideration ; Ward v. Steamboat Little Red, 7 Mo.
584, where averment was 'alleged by way of inducement, and was descrip-
tive of written instrument; Mechanics' etc. Bank v, Whinfield, 24 Wend.
418, holding immaterial averment need not be proved; dissenting opinion
in dinger v. McChesney, 7 Leigh (Va.), 679, majority holding in tort
action founded on contract, variance from contract alleged will be fatal;
also concurring- opinion, same case, page 683, declaring Wilson v. Codman
not applicable; Averett v. Booker, 15 Gratt. 164, 76 Am. Dec. 204, in action
on bill of exchange it is not necessary to aver it was given for value.
Glalnui against agent cannot be offset against principal.
Cited in Taylor v. Eancaid, Hard. 88, holding usury between assignor
and assignee does not discharge obligor; Def ranee v. Davis, Walk. (Miss.)
71, holding interest of assignee onaffeoted by subsequent bankruptcy of
assignor; Mott v. Hicks, 1 Cow. 538, IS Am. Dec. 557, one indorsing as
"agent" not liable as indorser; Olive v. Napier, Cooke, 14, holding action
of debt not maintainable by indorsee of promissory note, not under seal.
Evidence of general reputation to prove existence of partnership.
Note, 4 Ann. Oas. 817.
3 Cr. 210-219, 2 Zi. Ed. 414, HAIiLET T. JENES.
American veaael entering TtButh port under streis of weather,* and com-
pelled 1»7 French to load French cargo, does not violate nonintercoorga act of
1798 ao as to forfeit insurance.
Cited in Crawford v. The William Penn, 3 Wash. C. C. 493, Fed. Cas.
3373, holding hypothecation of vessel in enemy's country to procure money
to return valid; Amory v. McGregor, 15 Johlis. 36, holding citizen of one
belligerent may withdraw his goods, within a reasonable time after declara-
tion of war ; New Orleans etc. R. R. Co. v. Evans, 49 Miss. 788 , Pelletreau
V. Rathbone, 1 N. J. £q. 333 , Booth v. Cotton, 13 Tex. 362, in general dis-
eussion.
Loss by capture under hostilities subsequently arising as risk not in-
sured against. Note, 14 E. B. 0. 138.
3 Ct. 220-228, 2 Ii. Ed. 417, MIIiZaiaAN T. MTTJilTOgB.
Want of proper parties not good plea if bill suggests that they are out
of court's jurisdiction.
Cited in Harrison v. Urann, 1 Story, 66, Fed. Cas. 6146, holding joinder
of those persons whose citizenship would oust court of jurisdiction dis-
pensed with; Bowman v. Burnley, 2 McLean, 379, Fed. Cas. 1740, holding
necessary parties within jurisdiction must be before court; Trecothick v.
Austin, 4 Mason, 32, 41, Fed. Cas. 14,164, holding administrators need not
be parties if without jurisdiction; West v. Randall, 2 Mason, 196, Fed. Cas.
17,424, holding interested party without jurisdiction need not be joined;
Wood V. Dummer, 3 Mason, 317, Fed. Cas. 17,944, holding parties dis-
pensed with where they are so numerous that it is impossible to join all;
Wormley y. Wormley, 8 Wheat. 456, 5 K Ed. 660, holding party without
3 Cr. 229-236 NOTES ON U. S. REPORTS. 234
jurisdiction need not be joined; Lncas v. Bank of Darien, 2 Stew. 326,
Reese v. Bradford, 13 Ala. 844, where court held removal of party from
State does not give jurisdiction of a legal demand; London etc. Bank v.
Smith, 101 Cal. 423, 36 Pac. 1030, holding nonresident surviving partner
need not be a party; Etheridge v. Vemoy, 71 N. C. 186, holding appear-
ance of parties out of jurisdiction dispensed with.
Distinguished in Plumb v. Bateman, 2 App. D. C. 168, holding that bill
of resident creditors to subject realty within district to payment of
decedent's debts can be maintained without joining nonresident executors.
Matter in plea mast be complete bar to eqnitj in bill.
Approved in Glucose etc. Co. v. Douglass, 146 Fed. 960, plea of non-
infringement of patent is not good in suit in equity ; Rhode Island v. Mas-
sachusetts, 14 Pet. 262, 10 L. Ed. 448, holding proper pleading to bill con-
taining no equity is demurrer; Piatt v. Oliver, 1 McLean, 303, Fed. Gas.
11,114, if plea is not complete bar it must be set aside; Sharp v. Reissner,
20 Blatchf. 13, 9 Fed. 447, plea denying infringement of patent, stricken
out; Salmon v. Glagett, 3 Bland Ch. 136, denial of facts not proper for a
plea.
Bill should not be dlamissed for want of proper parties.
Approved and applied in Berry v. Rogers, 2 B. Mon. 308, holding leave
should be given to amend, not dismiss absolutely; Colt v. Lasnieri 9 Cow.
334, ordering the cause to stand over that necessary parties may be added.
Miscellaneous. Cited in Trescott v. Trescott, 1 McCord's Ch. 433.
3 Or. 229-236, 2 I*. Ed. 420, OOOKE v. OBAHAM.
Upon oyer, If declaration miadescribes date of bond, it is bad on general
desnurrer.
Approved in Tingey v. Carroll, 3 Cr. C. C. 694, Fed. Cas. 14,066, holding
variance as to ''seals'' fatal; Chilton v. People, 66 111. 603, holding where
one declares on a bond and upon oyer, instrument is unsealed, variance
is fatal; as also in Deming v. Bullitt, 1 Blackf. 241; Smith v. Brown,
3 Blackf. 26, proving of a different date than that alleged, does not sustain
the action, note ; Palmer v. McGinnis, Hard. 616, where the variance is in
form only, must .demur specially; Long v. Overton, 7 Mo. 668, holding omis-
sion of month in declaration a fatal variance; Messer v. Smythe, 68
N. H. 313, holding operation of oyer is to make the writing part of the
pleadings; Church v. Feterow, 2 Penr. & W. 303, holding variance in date
fatal; Cabell v. Hardwick, 1 Call (Va,), 364, holding contract as evi-
denced must correspond with that declared on ; Bennetts v. Lloyd, 6 Leigh
(Va.), 318, holding variance in date fatal; Damarin v. Young, 27 W. Va.
437, holding variance in date between note declared on and produced is
fatal.
Distinguished in Moses v. United States, 166 U. S. 678, ^ L. Ed. 1122,
17 Sup. Ct. 686, holding where trial is upon the merits variance in date in
declaration and instrument is not fatal.
235 HANNAY v. EVE. 3 Cr. 242-249
Judgment upon demnrrer it against party making first error.
Approved in United States v. Peralta, 99 Fed. 624, treating demnrrer as
special plea in suit to compel issuance of land patent; Aurora v. West,
7 Wall. 93, 19 L. Ed. 46 , United States v. Bank, 10 Fed. 615 , Peoria etc.
R. R. V. Neill, 16 111. 271, Tillotson v. Stipp, 1 Blackf. 77, Conner v. Pax-
son, 1 Blackf. 209, Joy v. Simpson, 2 N. H. ISl, Governor v. Porter, 4
Yer^. 192, and State v. Williams, 8 Tex. 265, all holding court will give
judgment against party whose pleading is first defective in substance;
Henley v. Brush, 33 Ala. 641, to show that a visitation of a demurrer was
within mischief intended to be guarded against by code.
» Distinguished in Park v. Kelly, 49 Fed. 622, holding that a demurrer to
an answer den3ring plaintiff's power to make the contract sued upon does
not admit the facts therein alleged so as to make them part of the petition.
In construing bonds, letter of . condition may bo departed flrom to carry
out intention.
Approved in Dowiat v. The People, 193 111. 267, 61 N. E. 1061, holding
liquor dealer's bond given under Rev. Stats., chap. 43, § 5, covers damages
from selling liquor; Whitsett v. Womack, 8 Ala. 481, holding bond vary-
ing from form prescribed by statute good; Swain v. Graves, 8 Cal. 551,
holding court will transpose or reject meaningless words in construing an
appeal bond; Stockton v. Turner, 7 J. J. Marsh. 192, holding a repugnant
stipulation in a condition will not change the import of the contract ; Giles
V. Halsted, 24 N. J. L. 367, 370, 61 Am. Dec. 669, 671, holding though con-
dition of bond be meaningless it should be construed according to the
intention of the parties; Roth v. Miller, 15 Sei^. & R. 107, holding sure-
ties are as much bound by the true intent of the meaning of the instru-
ment as the principals.
3 Gr. 2«t-2i9, 2 I*. BO. 4S7, KAHHAY ▼. EVE.
AgzMOMBt m fraud of law of UMted Stataa la imenf oroeablo, and snbae-
qniaiit mfl of law is immateriaL
Approved in Willcox v. Edwards, 162 Cal. 461, Ann. Oas. 19130, 1392,
123 Pac. 278, holding that moneys paid on void contracts were not recov-
erable, but stock certificates pledged to secure advancements made on such
contracts, not having been applied for advancements before demand made
for their return, are recoverable; Piatt v. Oliver, 1 McLean, 301, Fed.
Cas. 11,114, holding agreement between persons not to bid at sheriff's sale
is void against public policy; as also in Piatt v. Oliver, 2 McLean, 277,
Fed. Cas. 11,115; Tufts v. Tufts, 3 Wood. & M. 505, Fed. Cas. 14,233,
refusing specific performance of an illegal contract; Mitchell v. Doggett,
1 Fla. 371, holding no action can be maintained on illegal contract, after
statute illegalizing is repealed; Howell v. Fountain, 3 Ga. 184, 46 Am.
Dec. 422, holding no action maintainable on contract growing out of im-
moral or ill^al transaction; as also in Martin v. Barstow Iron Works, 35
Ga. 328 ; Overshiner v. Wisehart, 59 Ind. 138, if parties are in equal fault,
no relief given in case of fraud; Marienthal etc. v. Shafter, 6 Iowa, 226,
holding there can be no action on contract with illegal consideration;
3 Cr. 249-266 NOTES ON U. S. REPORTS. 236
Bank of the United States v. Norvell, 2 A. K. Marsh,' 105, holding title
acquired against law not enforceable ; Bank of Michigan v. Niles, 1 Poug.
412, 41 Am. Dec. 683, holding contract for purchase of land by corpora-
tion in excess of legal amount allowed, to be held void; Drexler v. Tyrrell,
15 Nev. 132, holding agreement to place property without operation of
revenue law void ; Chauncy v. Yeaton, 1 N. H. 157, if property is tortiously
taken and put to illegal use, owner cannot recover money received for that
use; Gulick v. Ward, 10 N. J. L. 92, 18 Am. Dec. 394, holding contract con-
travening an act of Congress is void; Graves -v. Delaplaine, 14 Johns, 169,
holding contract for trade, during nonintercourse law, void, and that no
recovery can be had on it ; Alwyn v. Perkins, 3 Desaus. Eq. 307, one cannolT
recover commissions for holding property of a foreigner to avoid foreign
law; Hunt v. Robinson, 1 Tex. 762, holding contract in violation of land
laws unenforceable.
Distinguished in Greffin v. Lopez, 5 Mart. (0. S.) 165, where person mak-
ing deed to defeat creditors was permitted to recover his property; Ker-
shaw V. Kelsey, 100 Mass. 566, 97 Am. Dec. 129, 1 Am. Bep. 146, upholding
lease of plantation in rebel State during war ; James v. Fulcrod, 5 Tex. 522,
55 Am. Dec. 750, upholding agreement where two persons with honest in-
tent agreed to purchase at a public sale, one to bid for both.
Effect on contract made void by statutory or constitutional provision
• of subsequent repeal of such provision. Note, Ann. Oas. 1913C,
1398.
Miscellaneous. Cited generally in The M. M. Chase, 37 Fed. 711, Dar-
rington v. Borland, 3 Port. 35, and State v. Doyle, 40 Wis. 194, 22 Am.
Bep. 699.
3 Cr. 24^250, 2 L. Ed. 429, MONTALET ▼. MURBAY.
Upon afflimance of Judgment on writ of error, coats are awarded as of
course.
Cited in Burnham v. Rangeley, 2 Wood. & M. 422, Fed. Cas.' 2177, hold-
ing where case is dismissed for lack of jurisdiction no costs allowed. See
4 Cr. 46, 2 L. Ed. 545, for this case on further hearing.
ft
3 Cr. 250-266, 2 L. Ed. 429, SILSBY ▼» YOUNG.
Where In case of insufficiency of estate to pBj all legacies one shall abate,'
sufficiency of estate is ascertained as of time of distribution.
Cited in Kirkman v. Mason, 17 Ala. 139, where legacy was given after
debts were paid ; Allen v. Puritan Trust Co., 211 Mass. 420, L. B. A. 19150,
513, 97 N. E. 919, holding bank liable where depositor withdrew funds
from his account as administrator of estate to replace overdrafts of hia
account as an individual.
Specific, demonstrative, and general bequests defined and distin*
guished. Note, 140 Am. St. Bep. 611.
237 STRAWBRIDGE v. CURTISS, 3 Cr. 267-268
3 Gr. 267-268, 2 L. Ed. 485, STBAWBBIDaE T. C70BTISS.
Each plaintiff must be capable of suing each defendant in Federal court*
Approved in Cuebas y Arredondo v. Cuebas y Arredondo, 223 U. S.
387, 56 L Ed. 480, 32 Snp. Ct. 277, holding Federal court has no jizris-
diction where sole plaintilf and some defendants are aliens, notwithstand-
ing other defendants are citizens of United States ; Sweeney v. Carter Oil
Co., 199 U. S. 257, 50 L. Ed. 180, 26 Sup. Ct. 55, two citizens of different
States may sue citizen of third State in Federal district of latter's resi-
dence; Florida Central etc. R. R. v. Bell, 176 U. S. 332, 333, 44 K Ed. 491, 492,
20 Sup. Ct. 403, 404, holding court has no jurisdiction of suit by citizens
of different States where they assert joint claim to land ; State of Maine
Lumber Co. v. Kingfield Co., 218 Fed. 905, refusing jurisdiction where it
does not appear affirmatively in bill what are the residences and citizen-
ship of others who may intervene and become parties ; H. G. Baker & Bro.
V. Pinkham, 211 Fed. 731, 732, 733, holding Federal court has jurisdic-
tion to remove suit where both defendants, one of whom is an alien and
other is resident of different State than plaintiff; Ware-Ejramer Tobacco
Co. V. American Tobacco Co., 178 Fed, 120, refusing jurisdiction where
plaintiff and one of the defendants are not citizens of district wherein
suit is brought; Atchison etc. Ry. Co. v. Phillips, 176 Fed. 667, 100 C. C. A.
215, holding court had jurisdiction where amended coniplaint alleged eer-
tain added defendants, although residents of same State as plaintiff had
no interest in suit; A. B. Andrews Co. v. Puncture Proof Footwear Co.,
168 Fed. 765, refusing jurisdiction where one of complainants and corpo-
ration defendant are citizens of same State; Anderson v. Barsman, 140
Fed. U, Circuit Court has no jurisdiction of suit against several defend-
ants to enjoin diversion of water, where one of defendants is citizen of
same State as complainant; Goodwin v. New York, N. H. & H. R. R. Co.,
124 Fed. 367, holding corporation incorporated in different States cannot
be sued in one of those States by citizen of same State; Abel ▼. Book,
120 Fed. 48, refusing to grant joint removal when one of defendant's
originally entitled to remove had waived right; Kromer v. Everett Imp.
Co., 110 Fed. 24, denying Federal jurisdiction where suit dismissed as to
party making citizenship diverse; Sengel v. Am. Smelting etc. Co., 110
Fed. 21, holding under judiciary act of August 13, 1888, section 1, suits
dependent on diversity of citizenship for Federal jurisdiction must be
brought where all plaintiffs or where all indispensable defendants reside;
Empire Min. Co. v. Propeller Tow Boat Co., 108 Fed. 902, holding Federal
court has jurisdiction of removed suit, though defendant removing suit is
nonresident ; Roberts v. Pacific etc. Ry. etc. Nav. Co., 104 Fed. 579, holding
Federal court has jurisdiction of suit against two defendants, one of whom
is an alien and other citizen of different State from plaintiff; New Orleans
V. Winter, 1 Wheat. 95, 4 L. Ed. 45, holding citizen of a territory cannot
sue a citizen of State in these courts, though joined with parties capable of
so suing; Wormley v. Wormley, 8 Wheat. 457, 6 L. Ed. 661, holding court
will not allow its jurisdiction to be ousted by joinder or nonjoinder of •
formal parties; Commercial etc. Bank of Vicksburg v. Slocomb, 14 Pet. 64,
10 L. Ed. 356, holding all the corporators must be citizens of a different -
3 Cr. 267-268 NOTES ON U. S. REPORTS. 238
State from the other party; dissenting opinion in Marshall v. Baltimore So
0. R. R. Co., 16 How. 340, 14 L. Ed. 964, majority holding that averment,
defendants are a corporation, created by legislature of Maryland, gives
the court jurisdiction ; Wood v. Davis, 18 How. 469, 15 L. Ed. 461, holding
joinder of formal parties cannot oust courts of jurisdiction; Coal Co. v.
Blatchford, 11 Wall 174, 20 L. Ed. 180, holding executors not qualified
because of citizenship cannot sue, although those they represent are quali-
fied ; Case of the Sewing Machine Companies, 18 Wall. 574, 21 L. Ed. 918,
holding, where one defendant is citizen of plaintiff's State, court has no
jurisdiction; Peninsular Iron Co. v. Stone, 121 U. S. 632, 30 L. Ed. 1020,
7 Sup. Ct. 1010, 1011, holding, if necessary party on both sides is citizen
of same State, court has no jurisdiction ; Smith v. Lyon, 133 U. S. 318, 319,
320, 33 L. Ed. 636, 637, 10 Sup. Ct. 304, s. c, 38 Fed. 64, plaintiffs citizens
of different States cannot unite in a suit in a State of which either is a
citizen ; Hanrick v. Hanrick, 153 U. S. 195, 38 L. Ed. 686, 14 Sup. Ct. 836,
holding all plaintiffs and defendants must be citizens of different States ;
Hooe V. Jameson, 166 U. S. 397, 398, 41 L. Ed. 1050, 17 Sup. Ct. 597, hold-
ing citizen of Distriq^t of Columbia canno^ maintain an action, though
joined with a competenUperson ; Hubbard v. Northern R. R. Co., 3 Blatchf.
88, Fed. Cas. 6818, holding plaintiffs cannot be citizens of different States ;
Hatch V. The Chicago etc. R. R. Co., 6 Blatchf. 113, Fed. Cas. 6204, holding
no defendant can be citizen of same State as plaintiff; Brigham v. Lud-
dington, 12 Blatchf. 241, Fed. Cas. 1874, if suit is not maintainable without
proper parties, and bringing them in would oust court of jurisdiction,
action must be dismissed; Petterson v. Chapman, 13 Blatchf. 399, Fed. Cas.
11,042, holding no plaintiff and defendant can be of same State ; Sawyer v.
Switzerland Marine Ins. Co., 14 Blatchf. 452, Fed. Cas. 12,408, holding
requisite jurisdictional citizenship must exist as to each plaintiff; Case v.
Douglas, 1 Dill. 300, Fed. Cas. 2491, holding all the plaintiffs must be
shown to be citizens of another State ; Barney v. Baltimore, 1 Hughes, 121,
Fed. Cas. 1029, holding citizenship of one of the suitors in District of
Columbia does not give jurisdiction; Ward v. Arredondo, 1 Paine, 412,
Fed. Cas. 17,148, holding joining of nominal parties, without requisite
citizenship, does not oust court; Moffat v. 'Saley, 2 Paine, 105, Fed. Cas.
9688, holding plaintiffs must be citizens of same State; Smith v. Rincs,
2 Sumn. 345, 347, Fed. Cas. 13,100, Circuit Court has jurisdiction wheitj
there are joint defendants, if all petition for removal ; Bank of Cumberland
V. Willis, 3 Sumn. 473, Fed. Cas. 885, all of the incorporators must be
citizens of another State; New Jersey v. Babcock, 4 Wash. 346, Fed. Cas.
10,163, holding, if State be a party, the Circuit Court is without juris-
diction and will remand cause, even after it has been docketed; Kirk-
patrick v. White, 4 Wash. 598, Fed. Cas. 7850, holding all of the corpo-
rators must be citizens of another State ; Nesmith v. Calvert, 1 Wood. & M.
38, Fed. Cas. 10,123, where suit could be maintained alone against one
defendant, that others were citizens of same State as plaintiff, was not
fatal to jurisdiction; Saginaw Gas Light Co. v. Saginaw, 28 Fed. 531,
holding no plaintiff or defendant can be of same State; Kane v. Indian-
apolis, 82 Fed. 772, holding one joint defendant cannot have cause re-
239 STRAWBRIDGE v. CURTISS. 3 Cr. 267-268
moved, unless other defendant has capacity; Excelsior Pebble Phosphate
Co. V. Brown, 74 Fed. 324, holding Circuit Court has no jurisdiction, where
plaintiffs are nonresidents, but only one defendant is a resident; Calder-
wood V. Braly, 28 Colo. 99, holding all defendants must be citizens of
another State to authorize a removal ; Howland Coal etc. Works v. Brown,
13 Busli (Ky.), 687, holding court had no jurisdiction where corporation,
one of defendants, Was of same State as plaintiff; Bryant v. Rich, 106
Mass. 192, 8 Am. Rep. 815, if a defendant or plaintiff, real party in in-
terest, is of same State, court has no jurisdiction; North River Co. v.
Hoffman, 5 Johns. Ch. 303, holding each incorporator must have juris-
dictional citizenship; Schuyler v. Pelisser, 3 Edw. Ch. 192, holding though
Federal court has no jurisdiction, it cannot be enjoined by State court;
James v. Thurston, 6 R. I. 431, holding presence of coplaintiff of different
State, entitled to decree, fatal to jurisdiction; Robb v. Parker, 3 S. C. 70,
holding court has no jurisdiction where plaintiffs are citizens of different
States; as also in Belknap v. Northern R. R. Co., 26 Vt. 719; Beery v.
Iriek, 22 Gratt. 487, 12 Am. Rep. 541, if any plaintiff and defendant are
of same State, case is not removable; Tuckerman v. Bigelow, 24 Fed. Cas.
282, holding where interests are joint, each plaintiff must be comx)etent to
sue each defendant; West v. Randall, 2 Maison, 197, Fed. Cas. 17,424, and
Eames v. Carlisle, 3 N. H. 131, both following rule^
Distinguished in Louisville R. R. v. Lctson, 2 How. 554, 11 L. Ed. 376,
declaring main case was carried too far, and that a corporation is a citizen
of the State under whose laws it is organized, though corporators be citi-
zens of other States ; Northern &. R. Co. v. Michigan C. R. R., 15 How. 248,
14 L. Ed. 681, where it is declared to have been overruled; Ober v. GFal-
lagher, 93 U. S. 205, 23 L. Ed. 831, where it is declared to have been ob-
viated by statute; Sands v. Smith, 1 Abb. (U. S.) 371, 376, 1 Dill. 293, 297,
Fed. Cas. 12,305, holding that an action brought against a citizen of that
State, and citizen of another State, latter voluntarily appearing, cognizable
in United States courts; Pond v. Railroad Co., 12 Blatchf. 290, Fed. Cas.
11,265, holding defendant who is citizen of State where action is brought
cannot objec^ to jurisdiction because other defendant resides in a different
State; P^ram v. United States, 1 Brock. 262, Fed. Cas. 10,906, holding
that in an action against defendants, some of whom are nonresidents, judg-
ment may be taken against the residents; Florence etc. Co. v. Grover etc.
Co., Holmes, 242, Fed. Cas. 4883, holding under later act one defendant
may remove cause though others be citizens of same State as plaintiff;
Doremas v. Bennet, 4 McLean, 225, Fed. Cas. 4001, holding defendant can-
not plead to jurisdiction because other defendants and plaintiff are citizens
of same State; Wildes v. Parker, 3 Sumn. 596, Fed. Cas. 17,652, court
doubting whether American citizen domiciled in foreign country is an
alien; Froment v. Duclos, 30 Fed. 385, a case concerning a consul, and
hence one where Federal courts have exclusive jurisdiction.
Denied in Wiggins v. The Railway, 1 Hask. (Fox's Dec.) 126, 128, 129,
130, Fed. Cas. 17,626, holding Circuit Court has jurisdiction, though re-
spondent is a nonresident, served in this State, and remaining respondents
are residents; Heriot v. Davis, 2 Wood. & M. 231, 232, Fed. Cas. 6404^
3 Cr. 268-282 NOTES ON U. S. REPORTS. 240
holding that if respondent appears court has jurisdiction, though other
respondents be citizens of same State as plaintiff; Zambrino y. Gal-
veston Ry., 38 Fed. 451, holding that a corporation is presumed to be a
citizen of the State where created; as also in Ysletli v. Cauda, 67 Fed. 7,
holding same of municipal corporation; Ex parte Andrew, 40 Ala. 646, 649,
651, holding where interests of parties are distinct,' requisite citizenship
need not be common; Home Ins. Co. v. Council, 50 Ga. 541, holding a
foreign corporation to be an ''inhabitant," and liable to same taxes as indi-
viduals; Renard v. Hargous, 13 Nl Y. 265, holding an attachment author-
ized, though one partner was a nonresident; Cooke v. Bank, 52 N. Y. 110,
11 Am. Bep. 676, holding a corporation a citizen of State creating, irre-'
spective of citizenship, incorporators; Cromwell v. Insurance Co., 2 Rich.
516, holding a corporation's residence is wherever its corporate business is ;
Hall v. Bank of Virginia, 14 W. Va. 619, holding a corporation is a citizen
of State where created; State v. Railroad, 45 Wis. 593, holding a corpora-
tion to be a citizen of the State where its principal place of business is.
Distinguished in Valarino v. Thompson, 7 N. Y. 582, where defendant was
•a consul, and Federal court had exclusive jurisdiction ; Babcock v. Millard,
2 Fed. Cas. 299, where it was not an original suit; Taylor v. Rockefeller,
23 Fed. Cas. 795, holding cause may be removed under later act, though
nominal plaintiffs and defendants be of same State.
Removal of causes from State to Federal courts. Note, 12 Am. Bep.
645.
Residence of corporation for jurisdictional purposes. Note, 88 Am.
Dec. 400.
8 Or. 268-270, 2 I«. Ed. 436, OOBDON ▼. CALDOLEUQO.
If State court decrees In favor of rU^t claimed under Fedelral act, Bnpreme
Court lias no JnrlBdiction on wilt of error.
Approved in Lynde v. Lynde, 181 U. S. 186, 45 L. Ed. 814, 21 Sup. Ct.
556, refusing to review State decree giving full faith and credit to decree
in another State for alimony; Scott v. Jones, 5 How. 375, 12 L. Ed. 196,
Roosevelt v. Meyer, 1 Wall. 517, 17 L. Ed. 502, Missouri v. Andriano, 138
U. S. 501, 84 K Ed. 1014, 11 Sup. Ct. 387, holding court was without juris-
diction; Whitten v. Tomlinson, 160 U. S. 238, 40 L. Ed. 411, 16 Sup. Ct.
300, and Fleming v. Clark, 12 Allen, 196, in general disoussioi}.
Time and manner of raising and deciding questions in State court to
obtain review in Federal Supreme Court. Note, 63 L. B. A. 54.
8 Cr. 270-282, 2 L. Ed. 436, McFBEBAK T. TAYIiOS.
Vendor is bound by description given by himself, though error therein
be by innocent mistiake.
Approved in Josljm v. Cadillac Automobile Co., 177 Fed. 867, 101 C. C. A,
77, holding that evidence of misrepresentation was sufficient to make it
error to instruct a verdict for defendant; Kuhlman t. Shaw, 91 Neb* 475^
136 N. W. 58, holding that representations as to quantity of land were
241 McFEERAN v. TAYLOR. 3 Cr. 270-282
material; 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 vendee to make false estimate,
vendee entitled to abatement of price; Equitable Trust Co. v. Milligan,
31 Ind. App. 24, 65 N. E. 1046, holding where party in possession and
claiming to own whole of tract pointed out boundaries to proposed pur-
chaser and sale was agreed on of whole tract, and neither vendor's deed
nor title covered whole tract, vendee may recover pro rata value of omitted
part ; dissenting opinion in Browning v. Boswell, 215 Fed. 840, 132 C. C. A.
168, majority holding lessee estopped from asking cancellation of mining
lease on ground of misrepresentation of quantity, where he had worked
mine for years after knowledge of quantity ; dissenting opinion in Schagun
v. Scott Mfg. Co., 162 Fed. 223, 89 C. C. A. 189, majority holding where
plaintiff received machine under agreement of acceptance or return within
limited time, and, after trying it, retained it and gave notes therefor, which
after maturity were renewed and part payment made, and continued un-
successfully experimenting with it, no suit for fraud or deceit could be
maintained; Smith v. Richards, 13 Pet. 38, 10 L. Ed. 48, holding false
affirmation of material fact, though innocently made, is good ground for
rescission ; Barnes v. Union Pao. Ry. Co., 64 Fed. 90, 12 U. S. App. 1, per-
mitting recovery on misrepresentation, without alleging knowledge or
fraud ; Moline Plow Co. v. Carson, 72 Fed. 392, 36 U. S. App. 448, holding
vendor liable for misrepresentation when he ought to have known its truth ;
Ricks V. Dillahunty, 8 Port. 138, holding an express warranty extends to
all defects, known or unknown; Pitts v. Cottingham, 9 Port. 677, holding
false 'representation gives vendee right to rescind; as also in Read v.
Wilker, 18 Ala. 333; Sears v..Hicklin, 13 Colo. 152, 21 Pac. 1024, holding
material misrepresentation made by mistake, ground for relief, though
vendee might have learned its falsity ; Smith v. Mitchell, 6 Ga. 480, holding
knowledge of maker of material misrepresentation immaterial; as also in
ITammons v. Espy, 1 Wils. (Ind.) 538, and Borders v. Kattleman, 142 III.
104, 31 N. E. 21 ; Cowger v. Gordon, 4 Blaekf . 113, even if vendor believes
misrepresentation to be true, he is liable; Frenzel v. Miller, 37 Ind. 13,
10 Am. Bep. 67, holding knowledge of maker of misrepresentation im-
material ; Wilcox V. Iowa Wesley an University, 32 Iowa, 374, but purchaser
must have relied on them; Waters v. Mattingly, 1 Bibb, 244, holding
knowledge of maker of misrepresentation is immaterial; Bean v. Herrick,
12 Me. 269, 28 Am. Dec. 180, holding though party making misrepresenta-
tion has no interest, he is liable; Taymon v. Mitchell, 1 Md. Ch. 499, if
misrepresentation is material, knowledge of maker is immaterial; Parham
V. Randolph, 4 How. (Miss.) 451, 35 Am. Dec. 405, holding any misrepre-
sentation by vendor as to title is fraudulent ; Rimer v. Dugan, 39 Miss. 483,
77 Am. Dec. 688, holding material misrepresentation, though innocently
made, is binding; Owens v. Rector, 44 Mo. 393, holding knowledge of
seller as to misrepresentation, a material question of fact; Phillips v.
Jones, 12 Neb. 215, 10 N.' W. 709, holding vendor liable for misrepresenta-
tion, though made through mistake; Leavitt v. Sizer, 35 Neb, 85, 52 N. W.
833, holding party liable, though not knowing statement ontrae; Hoook v.
1—16
3 Cr. 283-298 NOTES ON U. S. REPORTS. 242
Bowman, 42 Neb; 84, 47 Am. St. Rep. 694, 60 N. W. 390, holding false
description of property grounds for rescission of contract. Rule applied
in Walsh v. Hall, 66 N. 0. 241, holding defendant had right of rescission
of contract induced by fraudulent misrepresentation; McCall v. Davis,
56 Pa. St. 435, 94 Am. Dec. 96, holding absence of willful fraud in vendor
will not relieve him from mistake ; Donelson v. Weakley, 3 Yerg. 197, hold-
ing material misrepresentation authorizes rescission; Lewis v. McLiemore,
10 Yerg. 209, holding party liable for misrepresentation of material fact,
innocently made, upon similar facts as original case; also McMullin v.
Sanders, 79 Va. 365, and Miner v. Medbury, 6 Wis. 309.
Distinguished in Dorsey v. Watkins, 151 Fed. 346, holding rule in-
applicable to sale of livestock where there was no warranty and purchaser
had opportunity for inspection; Buford v. Guthrie, 14 Bush (Ky.), 694,
where misrepresehtation was as to title and title was made good; Brooks
V. Hamilton, 15 Minn. 34, where party had opportunity to examine the
goods ; Erie etc. Wo^ks v. Barber, 106 Pa. St. 141, 51 Am. Rep. 516, hold-
ing that to recover in action of deceit, defendant must have been guilty of
some moral wrong; Smith v. Mariner, 5 Wis. 577, 68 Am. Dec. 78, where
there was no contract, but representation was as to date of public sale.
Avoidance of contracts for mutual mistake of fact. Note, 45 Am.
Dec. 682.
Liability of vendor of realty for false representations innocently made.
Note, Ann. Gas. 19130, 68.
Misrepresentation as to location of property. Note, 38 L. R. A.
(N. S.) 803.
Finding of Jury, contradicting fact admitted by pleadings is to be diB-
regarded.
Approved in Grady v. Robinson, 28 Ala. 303, holding defendant cannot
prove a fact which he failed to put in issue in his answer; Roth v. Miller,
15 Serg. & R. 105, holding verdict, contradicting a fact admitted in plead-
ing, is to be disregarded.
Distinguished in Bright v. Haggin, Hard. 638, holding that defendant
denying contract in bill, but setting up one under different circumstances,
'does not have to prove the circumstances.
Miscellaneous. Cited in Keatts v. Rector, 1 Ark. 425, HoUingshead v.
McKenzie, 8 Ga. 459, and Woodman v. Freeman, 25 Me. 554, 560, but not
in point.
S Cr. 283-293, 2 L. Ed. 441, WILSON V. SPEED.
Miscellaneous. Cited in Sarchet v. The Sloop Davis, Crabbe, 191, Fed.
Cas. 12,357, but not in point.
S Or. 293-298, 2 L. Ed. 444, BODDIOUM Y. KIBK.
Formal errors in taking dHWSltion h^d to have been waived.
Cited in Shutte v. Thompson, 15 Wall. 160, 21 L. Ed. 156, holding that
refraining from objecting until after possibility of removal is a waiver; to
\
243 DOUGLASS v. McALLISTER. 3 Cr. 298-300
same effect, Doane v. Glenn, 21 Wall. 35, 22 Ir. Ed. 476, and Howard v.
Siillwell & Bierce, 139 U. S. 205, 35 L. Ed. 150, 11 Sup. Ct. 503, holding
failure to object to formal irregularity in taking deposition amounts to a
waiver; Murray v. Larabie, 8 Mont* 213, 19 Pac. 576, delay in objecting to
defect waives it; Town of Alton v. Town of Gilmanton, 2 N. H. 521, 522,
holding attorney may waive any objection to notice; Perkins v. Hawkins,
9 Gratt. 655, overruling objection made after reading of deposition, and
after death of witness.
Distinguished in Webb v. Ritter, 60 W. Va. 228, 54 S. E. 498, holding
that service of notice to take deposition of resident upon attorney insuffi-
cient, in absence of waiver of lack of service.
Where notice says commission will adjourn tram day to day, if they
adjourn for more than one day, deposition is not taken agreeably to notice.
Approved in Harding v. Merrick, 3 Ala. 60, holding commission could not
adjourn to a day more remote than that succeeding. ^
Distinguished in Glover v. Mullings, 2 Stew. & P. 39, where there was no
direction to adjourn from day to day; Mann v. County Court, 58 W. Va.
661, 52 S. E. 779, determining power of court to adjourn to distant day.
Deposltiona to perpetuate testimony may be taken according to common
Dsaga
Approved in Westinghouse Mach. Co. v. Electric Storage Battery Co.,
17i) Fed. 432, 25-^ R. A. (N. S.) 678, 95 C. C. A. 600, holding court has
jurisdiction to entertain original bill in perpetuam rei memoriam; United
States V. Fifty Boxes etc. of Lace, 92 Fed. 603, holding phrase in Rev.
Stat., § 866, "according to common usage" means according to usage when
section was enacted ; Indng v. Lutton, 1 Cr. C. C. 575, Fed. Cas. 7078, hold-
ing notice of motion to take depositions may be given to attorney.
Distinguished in The West Minister, 96 Fed. 767, holding admiralty
eoorts need not conform to State practice in taking depositions.
under plea of payment to bond, evidence of wheat delivered and of debts
anigned will support issae.
Approved in Howe v. Mackay, 5 Pick. 46, and Richbaugh v. Dugan, 7 Pa.
St. 396, holding under plea of payment, defeiidant may show a chattel or
land was received as satisfaction. f
Miscellaneous. Cited in United States v. Parrott, MoAU. 456, 457, Fed.
Cas. 15,999, United States v. Cameron, 15 Fed. 796, 5 McCrary, 97, but not
in point.
3 Cr. 298-^00, 2 L. Ed. 245, D0Uai.A88 y. McALUBTEB.
' Value of arti<de sold on day cause of action arose is measure of damages
for breach.
Approved in Berbarry v. Tombacker, 162 N. C. 499, 77 S. E. 413, holding
that no substantial damages being shown, plaintiff entitled to recover nomi-
nal damages only; Willis v. Dudley, 10 Ala. 938, holding purchaser entitled
to value of article if warranty had been true; Leach v. Smith, 25 Ark. 253,
3 Cr. 300-311 NOTES ON U. S. REPORTS. 2tt
allowing value of article at time it was due ; Mc Alpin v. Lee, lA Conn. 133,
holding measure of damages- is difference between price agreed upon and
real value of property; Davenport v. Wells, 1 Iowa, 599, holding value of
goods on day they were due the measure of damages; Thompson v. Howes,
14 La. Ann. 45, allowing market price of article at time of breach; Clark
V. Pinney, 7 Cow. 687, allowing difference between contract price and value
of goods at time of delivery; Wilson v. Robertson, 1 Overt. 466, holding
value of land at time of rendering judgment the daihages; Hendrick v.
Stewart, 1 Overt. 477, holding party is entitled to what he actually lostj
Ferris v. Barlow, 2 Aikens, 107, following rule; dissenting opinion in
Christian v. Miller, 3 Leigh (Va.), 83, 23 Am. Dec. 254^ majority holding
where there is failure to deliver as per contract, remedy of purchaser is
damages for breach of contract.
In jury trial court Is bound to give an opinion upon any releraat point.
Approved in Emerson v. Hogg, 2 Blatchf . 7, Fed. Cas. 4440, holding ex-
ceptions will lie for refusal to give instructions ; Colquitt v. Thomas, 8 Ga.
272, giving improper charge amounts to a refusal to charge ; State v. Brette,
6 La. Ann. 662, holding where judge refuses to charge a certaifi way, but
jury find in accordance with charge requested, no error; State v. Donnelly,
9 Mo. App. 525, holding court may refuse instructions based upon hypo-
thetical facts, where there is no competent evidence tending to prove them ;
State V. Hascall, 6 N. H. 359, court may refuse to instruct as to point not
raised at tricil; Linn v. Ross, 16 N. J. L. 57, holding refusal to charge is
error; Dunlop v. Patterson, 5 Cow. 246, holding it is not error to refuse to
charge upon matter to which attention was not drawn; Halliday v. Mc-
Dougall, 22 Wend. 273, holding that a refusal to charge that general repu-
tation is not alone sufficient to establish a copartnership, is not error.
3 Or. SOO-Sll, 2 L. Ed. 446, SIMMS v. SL00X7M.
Fraudulent judgments are not absolutely void, and all acts perfonned
under them are valid as respects third persons. Obligor on prison-bounds bond
is protected by discharge from prison rules under Virginia insolvent act fraud-
ulently obtained.
Approved in dissenting opinion in Haddock v. Haddock, 201 U. S. 627,
60 L. Ed. 893, 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 decree of divorce enforceable in all other States against nonresident
only constructively served; In re Casey, 195 Fed. 328, holding order in
bankruptcy obtained on false testimony not collaterally attackable; Ammi-
don V. Smith, 1 Wheat. 460, 4 L. Ed. 135, 136, a similar case, holding dis-
charge of prisoner, obtained by fraud, is lawful discharge, and no action
lies on the bond ; Noble v. Railroad, 147 U. S. 174, 37 L. Ed. 127, 13 Sup. Ct.
274, holding judgment cannot be impeached collaterally, even if court was
imposed upon; Ex parte Freedley, Crabbe, 550, Fed. Cas. 5079, court can-
not compel purchaser at sheriff's sale to relinquish property though judg-
ment be reversed; Derby v. Jacques, 1 Cliff. 437, Fed. Cas. 3817, holding
judgment cannot be questioned collaterally; Bank of the United States v.
Voorhees, 1 McLean, 224, Fed. Cas. 939, holding purchaser under judg-
245 SIMMS V. SLOCUM, 3 Cr. 300^311
menty however erroneous, is protected ^ Fanners* L. & T. Co. v. McKinney,
6 McLean, 10, Fed. Cas. 4667-, holding judgment cannot be treated as a
nullity for error in proceedings ; "Woodhull v. Wagner, 1 Bald. 299, Fed.
Cas. 17,975, holding discharge by bankrupt laws of foreign country no bar
to action here; Hancock v. Jenks, 21 Fed. 914, recital "that patentee had
made oath," cannot be inquired into; Davis v. Cathey, 1 Stew. 404, holding
fraudulent discharge of debtor, without collusion of surety, exempts latter;
Mabry v. Hemdon, 8 Ala. 863,- query whether discharge of bankrupt can be
impeached for fraud ; Bumham v. Stone, 101 Cal. 174, 35 Pac. 630, holding
sheriff taking possession under fraudulent judgment is not a trespasser;
Camp v. Moseley, 2 Fla. 195, holding an ofi&cer protected under process,
showing court has jurisdiction of subject matter ; Ponder v. Moseley, 2 Fla.
268, 48 Am. Dec. 202, holding judgments import absolute verity until re-
versed ; as also in Wiley v. Kelsey, 9 Ga. 120 ; Jamison v. Beaubien, 3 Scam.
115, 36 Am. Dec. 535». holding pre-emption may be shown to have been
obtained by fraud; Wadhams v. Gay, 73 111. 422, holding innocent pur-
chaser at judicial sale not affected by reversal of judgment; Gilman v.
Hamilton, 16 111. 232, holding decree of specific performance is not judicial
sale, purchaser is not protected under erroneous judgment; Granger v.
Clark, 22 Me. 130, holding judgment, where want of jurisdiction is not on
record, not impeachable; .Wilton Mfg. Co. v. Butler, 34 M^er'411, holding
officer is protected under irr^ular writ, though judgment afterward re-
versed; Way V. Howe, 108 Mass. 507, 11 Am. Rep. 390, holding dischai^
in bankruptcy cannot be impeached for fraud; Milburn v. Gilman, 11 Mo.
€7, holding sheriff levying execution under fraudulent judgment not a
trespasser; Johnson v. Jones, 2 Neb. 133, holding judgment cannot be
attacked collaterally for falsity of return of summons; Lincoln v. Williams,
12 Serg. & R. 106, where debtor performs bond, surety cannot be held,
though the^ was fraud in its inception ; Farmers' Bank v. Boyer, 16 Serg.
ft R. 50, holding surety does not stand on more advantageous terms than
principal; Petterman v. Murphy, 4 Watts, 426, 28 Am. Dec. 730, holding
title of innocent purchaser at judicial sale unaffected by fraud in judg-
ment; Eldridge v. Bush, Smith, 297, holding as in main case upon similar
facts; Hoffman v. Coster, 2 Whart. 472, holding ju^^^ent, though fraudu-
lent, cannot be impeached by a party or privy; Cochran y. Eldridge, 49
Pa. St. 369, holding court has power to relieve against inequitable award of
arbitrators; Gregg v. Bigham, 1 Hill (S. C), 303, 26 Am. Dec. 183, holding
purchase under fraudulent judgment good; Hunter v. Ruff, 47 S. C. 554,
58 Am. St. Bep. 930, 25 S. E. 75, holding judgment voidable where de-
fendant was not properly summoned; to same effect as original case,
Hibber v. Hammond, 2 Strob. 107, holding discharge of prisoner releases
bondsmen; Turner v. Malone, 24 S. C. 406, holding judgment will not be
avoided collaterally, for lack of jurisdiction not appearing on record;
Raymond v. Southerland, 3 Vt. 506, holding certificate of board of com-
missioners as to notice conclusive; Jackson v. Astor, 1 Pinn.'159, 39 Am.
Dec ^Mfi, holding judgment cannot be impeached collaterally.
Distinguished in Pratt v. Northam, 5 Mason, 103, Fed. Cas. 11,376, hold-
ing jnd^nent in Court of Probate, obtained by fraud, not conclusive;
3 Cr. 311-319 NOTES ON U. S. REPORTS. 246
Murchison v. Wliite, 54 Tex. 86, holding fraudulent judgment is open to
collateral attack by strangers.
Defects in process which do not affect officer. Note, 21 Aiji. Doc. 198.
Character and kinds of judgments and orders not collaterally assail-
able for fraud not affecting jurisdiction. Note, 36 L. R. A. (N. S.)
988.
3 Cr. 311-319, 2 L. Ed. 450, HARRIS v. JOHNSTON.
Indorsee, in Virginia, cannot sue remote indoner at law.
Cited in Walker v. Brooks, 125 Mass. 245, holding assignee cannot sue
in equity, because he cannot sue at law in his own name; Hunter v. Hemp-
stead, 1 Mo. 70, holding indorsee can sue immediate indorser; McGee v.
Lynch, 3 Hayw. 106, holding assignee cannot sue remote assignor.
Distinguished in Clifford v. Keating, 3 Scam. 262; where'statute provided
that all indorsers should be liable to last assignee.
Bill of parcels delivered by A and stating goods as bouglit of A Ik B»
may be explained by extraneous evidence to show A Ik B not Joint owners.
Approved in Grant v. Frost, 80 Me. 205, 13 Atl. 882, holding bill of
parcels is always open to parol evidence, to show the real terms ; Hazard v.
Loring, 10 Cusb. 268, and Jones v. Rahilly, 16 Minn. 324, holding that
transfer of personal property may be shown orally to have been pledge;
Wallace v. Rogers, 2 N. H. 507, admitting parol evidence to change terms
in a bill of parcels; Perrine v. Cooley, 39 N. J. L. 452, admittin^parol
evidence of representations as to soundness of a horse; Crosby v. Canal
Co., 141 N. Y. 592, 36 N. E. 334, admitting parol evidence of a transaction
to show whether it was a sale or a bailment.
Parol evidence to contradict written instrument. Note, 11 E. &. 0.
226.
Action cannot be maintained on original contract by one wbd has received
note as conditional payment and indorsed it to thlxd person.
Approved in United States v. United States Fidelity & Guaranty Co.,
172 Fed. 270, surety on government contractor's bond is not released from
liability to subcontractor by latter's taking contractor's note for his claim
due in three months, but which did not mature until final settlement be-
tween government and contractor; Looney v. District of Columbia, 113
U. S. 261, 28 L. £d. 975, 5 Sup. Ct. 464, to facts similar to those in prin-
cipal case; Russell v. Hester, 10 Ala. 536, holding failure of creditor to
preser\'e liability of indorser of promissory note, received for debt, renders
him liable; Cocke v. Chaney, 14 Ala. 66, by transferring'note, creditor ac-
cepts it as payment ; Ware v. Russell, 57 Ala. 45, 29 Am. Rep. 711, holding
if creditor transfers collateral note first it operates pro tanto as payment
of original vote ; Ringgold v. Newkirk, 3 Ark. 109, holding guarantor can-
not be held unless creditor uses reasonable diligence; Costar v. Davies, 8
Ark. 217, 46 Am. Dec. 812, holding note received in discharge of an open
account is a bar to an action on that account; Salomon v. Pioneer Co-op-
247 DIXON V. RxiMSAY, 3 Cr. 319-324
craiive Co., 21 Fla. 382, allegation in plea that defendant gave draft on
third person which was accepted as payment constitutes a good defence;
Wylly V. Collins, 9 Ga. 240, holding note of debtor or third person not pay-
ment, unless accepted as such; Stevens v. Bradley, 22 111. 248, holding
where vendor took notes without indorsement, he cannot recover of pur-
chaser ; Patapsco Ins. Co. v. Smith, 6 Har. & J. 170, 14 Am. Dec. 270, hold-
ing one accepting note of agent for debt, cannot sue principal ; Hoffman v.
Johnson, 1 Bland Ch. 107, holding that where note is given, creditor must
use due diligence in collecting; Watkins v. Worthington, 2 Bland Ch. 527,
holding where a decedent and creditor are jointly liable, creditor must
show how decedent was bound; Wright v. First Crockery Ware Co., 1
If. !tT. 282, 283, 8 Am. Dec. 69, 70, holding that vendor taking agent's note
cannot sue principal; Hill v. Marcy, 49 N. H. 269, holding that a creditor
selling a negotiable note is presumed to have taken it as payment; Hut-
chins V. Olcutt, 4 Vt. 555, 24 Am. Dec. 639, holding promissory note re-
ceived as payment a bar to action on account ; Torrey v. Baxter, 13 Vt. 457,
holding note of third person proving unavailable is not pasmient; Dickin-
son V. King, 28 Vt. 381, holding note not pajrment, though negotiaSd, if
indorsee has unsatisfied judgment.
Distinguished in Roach v. HuUings, 16 Pet. 326, 10 L. Ed. 981, where
there was no evidence to show a note had been given ; Stebbins v. Kellopp,
5 Conn. 269, where note was not received as conditional payment and was
not passed away ; Penny v. Crane, 80 111. 247, holding where note is taken
as collateral, party is an absolute guarantor; Daniels v. Bumham, 2 La.
247, where bills given were protested; Wade v. Staunton, 5 How. (Miss.)
635, where note was not taken as payment; Steamboat Charlotte v. King-
land, 9 Mo. 67, 68, where note was not transferred.
Surrender of negotiable paper as condition to recovery on original ob-
ligation. Note, 20 Ann. Cas. 867.
t^ayment by commercial paper. Note, 35 L. R. A. (N. S.) 41.
3 Cr. 319-324, 2 L. Ed. 453, DIXON V. BAM8AT.
Foreign executor cannot maintain suit in domestic const upon his foreign
letters.
Approved in Courtney v. Pra^t, 160 Fed. 563, 87 C. C. A. 463, holding
citizen of Kentucky cannot maintain action there against nonresident ex-
ecutor; Vaughn v. Northup, 15 Pet. 6, 10 L. Ed. 641, holding that an ad-
ministrator in a State is not liable to be sued in District of Columbia;
Xoonan v. Bradley, 9 Wall. 400, 19 L. Ed. 759, holding that an adminis-
trator ap])ointed in one State cannot sue in another ; Melius v. Thompson,
1 pliff. 128, 131, 132, Fed. Cas. 9405, holding administrator could not be
sued in foreign State; Swatzel v. Arnold, Woolw. 388, Fed. Cas. 13,682,
holding administrator may maintain suit in foreign State, if, after obtain-
tng letters there, he avers it by amendment; Eells v. Holder, 2 McCrary,
622, 12 Fed. 669, holding administrator cannot sue out of the State where
appointed; Kropff v. Poth, 19 Fed. 200, holding administrator cannot con-
tinue suit brought in another State, unless he has taken out letters there;
3 Cr. 319-324 NOTES ON U. S. REPORTS. 248
Lusk V. Kinjball, 87 Fed. 547, holding suit commenced by foreign adminis-
trator without first taking out letters here is a nullity; Leavens v. Butler,
8 Port. 401, holding court could not direct the division of lands situate in
other States; Harrison v. Mahorner, 14 Ala. 835, holding administrator
may sue in another State, under statute, on recording letters; Equitable
Life Assurance Society v. Vogel, 76 Ala. 447, 52 Am. Rep. 846, holding
administrator can sue a foreign corporation, in his own State; Greer v.
Fei^son, 56 Ark. 330, 19 S. W. 967, holding suit cannot be revived against
executor appointed in another State; Hobart v. Turnpike Co., 15 Conn.
147, holding executor cannot sue in another State; Davis v. Smith, 5 Ga.
206, 48 Am. Dec. 295, holding administrator is not liable for failure to ap-
pear in action brought in another State; Naylor v. Moody, 2 Blackf. (Ind.)
248, that executor cannot bring suit in another State; Lucas v. Tucker, 17
Ind. 44, holding executor, by complying with law where realty is, acquires
power over it; Embry v. Millar, 1 A. K. Marsh. 302, 10 Am. Dec. 735, hold-
ing personalty cannot be recovered in another State, unless administrator
is appointed there; Moore v. Tanner, 5 T. B. Mon. 46, 17 Am. Dec. 39,
holding that administrator in State cannot sue in District of Columbia;
Sneed v. Ewing, 5 J. J. Marsh. 467, 22 Am. Dec. 48, holding a probate to
be a judgment in rem; Louisville & Nashville R. R. Co. v. Brantley, 96 Ky.
304, 49 Am. St. Bep. 295, 28 S. W. 478, holding administrator cannot sue
in another State; Haven v. Poster, 9 Pick. 134, 19 Am. Doc. 362, holding
administratrix had no power to make tender in another State; Sabin v.
Oilman, 1 N. H. 194, holding that an administrator cannot sue in another
State ; as also Taylor v. Barron, 35 N. H. 495 , Leonard v. Putnam, 51 N. K.
250, 12 Am. Bep. 108, holding powers of guardians do not extend to other
States; Haight v. Bergh, 15 N. J. L. 185, holding that attachment cannot
be issued against executors; Patterson v. Pagan, 18 S. C. 588, holding ad-
ministrator cannot sue in this State, unless letters are issued here; Cald-
well V. Maxwell, 2 Overt. 107, holding, where executrix moved to another
State with the effects, courts in latter State could specifically enforce will;
Vaughn v. Barret, 5 Vt. 336, 26 Am. Dec. 307, holding administrator has
no power to discharge debt due from citizens of another State; Hooper v.
Hooper, 29 W. ¥a. 294, 1 S. E. 293, holding sureties liable for assets
brought by executor from another State and wasted; dissenting opinion
in Crumlish v. Railroad Co., 40 W. Va. 650, 22 S. E. 99, agreeing with ma-
jority in this, that administrator cannot be sued out of his State; Anthes
V. Anthes, 21 Idaho, 310, 121 Pac. 555, ai^nehdo.
Distinguished in Moore v. Petty, 135 Fed. 673, 68 C. C. A. 306, executor
may sue in foreign State to recover from agent proceeds of sale of dece-
dent's realty; Pedan v. Robb, 8 Ohio, 227, holding that ward could main-
tain suit against her guardian's representatives.
Foreign judgments against an executor or administrator. Note, 27
L. R. A. 102, 107, 108.
Power of executor is derived ftom testator's will wliicb Inyesto bim wltA
whole personal estatew
249 DIXON V. RAMSAY. 3 Cr. 319-324
Cited in WaU v, BisseU, 126 U. S. 387, 31 L. Ed. 775, 8 Sup. Ct. 982,
holding, under a statute, executor has no right to disiwse of pn^erty, until
after letters; Gayle v. Blackburn, 1 Stew. 433, holding executor has right
to property in another State, if he can get it without suit ; Johnes v. Jack-^
son, 67 Conn. 89, 34 Atl. 711, deciding that service of attachment, before
will probated, holds property.
Bight to personalty is goyemed by law of testator's domicile.
Approved in Union Bank of Georgetown v. Smith, 4 Cr. C. C. 36, Fed.
Cas. 14,362, holding lex domicilii governs order of payment of debts; as
also in Harvey v. Richards, 1 Mason, 408, Fed. €as. 6184, as to distribution
of estate of intestate ; Irving v. McLean, 4 Blackf . 53, and Barnes v. Bras-
hear, 2 B. Mon. 382, as to testamentary disposition; as also in Penny v.
Christmas, 7 Rob. La. 497; Binney's Case, 2 Bland Ch. 146, holding, though
a canal is declared personalty, it must be governed by lex situs; Rue v.
High, 2 Doug. (Mich.) 522, holding will made according to lex domicilii
passes personalty wherever situated; Garland v. Rowan, 2 Smedes & M.
635, holding lex domicilii governs distribution of personalty; Fishburne v.
Kunhardt, 2 Spears, 562, holding registry of mortgage of personalty gov-
erned by lex domicilii; Latine v. Clements, 3 Ga. 432, arguendo.
Distinpniished in Vamum v. Camp, 13 N. J. L. 336, 25 Am. Dec. 485,
holding that instrument legal at maker's domicile will not pass personalty
elsewhere, if prohibited by local law; dissenting opinion in Bonati v.
Wclsch, 24 N. Y. 164, majority holding that rights of wife under laws of
France will attach to property of husband dying domiciled here; Hyman
V. Gaskins, 5 Ired. (N. C.) 269, holding that it is not absolutely necessary
that will should first be submitted to forum of domicile.
Suit for property of testator is governed by lez fori.
Approved in Barrielle v. Bettman, 199 Fed. 844, holding that alien
claimant having died, suit to recover personalty could not be maintained
in State court by hi« heirs; Clark v. Eltinge, 38 Wash. 383, 107 Am. St.
Bep. 858, 80 Pac. 559, in action against husband and wife to recover bal-
ance due on mortgage debt incurred while defendants were nonresidents,
liability of wife depends on law of State of residence at time debt created ;
Willard v. Wood, 135 U. S. 313, 34 L. Ed. 213, 10 Sup. Ct. 832, where mort-
gagee sued on mortgage debt; Hinkley v. Marean, 3 Mason, 90, Fed. Cas.
6523, as to insolvency laws; Thomas v. American Freehold etc., 47 Fed.
554, holding proceedings on note regulated by lex fori; Munos v. Southern
Pac. Co., 51 Fed. 190, 2 U. S, App. 222, holding that lex fori governs as to
statute of limitations; Jordan v. Thornton, 7 Ark. 231, 44 Am. Dec. 548,
holding assignor may bring suit against previous indorser, lex fori gov-
erning; Embry v. Miller, 1 A. K. Marsh. 302, 10 Am. Dec. 735, holding
action to recover personalty governed by lex fori; De Sobry v. De Laistre,
2 Har. & J. 228, 3 Am. Dec. 544, holding remedy on contract should be gov-
erned by lex fori; Whittemore v. Adams, 2 Cow. 632, holding an insolvent
law, not exempting future acquisitions, being a remedy, lex fori governs;
Edmondson v. Ferguson, 11 Mo. 345, holding remedy and contract are dis-
tinct, act affecting remedy is constitutional.
Conflict of laws as to wills. Note, 2 L. R. A. (N. S.) 410.
3 Cr. 324^37 NOTES ON U. S. REPORTS. 250
Misoellaneous. Cited, but not in point in Holland y. Jones, 9 Ind. 496,
and Winfried v. Yates, DalL (Tex.) 364.
3 Ox. 32^^31, 2 I.. Ed. 455, SCOTT y. NEOBO IiOTTDON.
Under statute providing, If owner of slave removing Into Virginia takes
required oath, slave shall not be free, removal of master and importation
of slave need not be contemporaneous.
Distinguished, Murray v. McCarty, 2 Munf. (Va.) 401, 406, holding stat-
ute does not authorize importation by citizen residing away temporarily.
3 Cr. 331-337, 2 IV. Ed. 467, WISE v. WITHESa
Decision of court-martial without its Jurisdiction cannot protect officer
who executed it.
Approved in McClaughry v. Doming, 186 U. S. 63, 69, 46 L. Ed. 1055,
1067, 22 Sup. Ct. 792, 794, holding objection that court-martial of volun-
teer was by regulars may be taken on habeas corpus ; Hamilton v. ' Mc-
Claughry, 136 Fed. 447, where on return to habeas corpus respondent jus-
tified under judgment of court-martial, burden is on him to show judgrment
based on positive law ; Doming v. McClaughry, 113 Fed. 650, holding void
court-martial of volunteer by regulars; Luther v. Borden, 7 How. 61, 12
L. Ed. 607, holding person liable for excessive force in enforcing martial
law ; Dynes v. Hoover, 20 How. 80, 82, 15 L. Ed. 844, where authorities are
examined, court holding it was not false imprisonment, where court-martial
had jurisdiction; dissenting opinion in Dow v. Johnson, 100 U. S. 189,
25 L. Ed. 643, majority holding army officer not liable for seizing goods
in enemy's country ; Smith v. Whitney, 116 U. S. 177, 29 L, Ed. 604, 6 Sup.
Ct. 575, holding writ of prohibition does not lie to court-martial having^
jurisdiction ; Runkle v. United States, 122 U. S. 566, 30 L. Ed. 1170, 7 Sup.
Ct. 1146, where jurisdiction depended on approval of president, sentence
without it was inoperative; Tolmie v. Thompson, 3 Cr. C. C. 137, Fed. Cas.
14,080, holding sale by commissioners without jurisdiction is void; Greene
V. Briggs, 1 Curt. 333, Fed. Cas. 5764, holding order of justice of peace,
upon matter without his jurisdiction, is void; United States v. Stowell, 2
CuVt. 156, Fed. Cas. 16,409, holding every fact necessary to existence of
authority must appear on face of indictment or process; Smith v. Miles,
Hempst. 34, Fed. Cas. 13,079a, if court has jurisdiction, officer is not liable
as trespasser on execution; The J. W. Frencb, 5 Hughes, 433, 13 Fed. 919,
920, holding that a court may examine collaterally into jurisdiction of an-
other court to pass upon title of property, and an act coram non judice
may be disregarded; Thurston v. Martin, 5 Mason, 503, Fed. Cas. 14,018,
tax collector, in excess of jurisdiction, imprisoning one, is liable for tres-
pass; Barrett v. Hopkins, 2 McCrary, 131, 7 Fed. 313, holding jurisdiction
of court-martial may be inquired into; Clarke & Co. v. Clarke, 3 Woods,
412, Fed. Cas. 2846, holding collectors collecting on property exempt are
trespassers; Justices etc. of Morgan Co. v. Selman, 6 Ga. 442, holding
where court of ordinarjr, without jursidiction, granted letters, act is void;
Hall V. Rogers, 2 Blackf . 430, holding one arresting under warrant from
- )
251 WISE V. WITHERS. 3 Cr. 331-337
justice of peace exceeding jurisdiction, is liable ; Nooe v. Bradley, 3 Blackf .
160, holding county board exceeding its authority liable; Barkeloo v, Ran-
dall, 4 Blackf. 478, 32 Am. Dec. 47, holding one acting under attachment
issued without a bond is a trespasser; Steel v. Williams, 18 Ind. 164, hold-
ing one procuring arrest by void process, liable for trespass; dissenting
opinion in Ex parte Holman, 28 Iowa, 178, majority holding State court
has no right to interfere with jurisdiction of Federal courts; White v.
MeBride, 4 Bibb (Ky.), 62, holding court-martial being without jurisdic-
tioQ could not punish the parties; Campbell v. Webb, 11 Md. 481, holding
officer, acting under process, void on its face, is liable; Brooks v. Adams,
11 Pick. 442, holding proceedings of court-martial without legally ap-
pointed judge-advocate are void; Brooks v. Daniels, 22 Pick. 601, holding
same as to judges irregularly chosen ; Fisher v. McGirr, 1 Gray, 45, 61 Am.
Dec. 404, discharging prisoner committed by magistrate whose want of
jurisdiction appeared on the face of the proceedings; Tyler y. Pomeroy,
8 Allen, 485, holding one seized and taken into camp without authority has
a cause of action; Clark v. Holmes, 1 Doug. (Mich.) 394, holding actions
of inferior courts in excess of jurisdiction are void; dissenting opinion in
Wall V. Trumbull, 16 Mich. 252, majority holding board of supervisors not
liable for errors in judgment, provided they had jurisdiction; Morrill v.
Taylor, 6 Neb. 246, holding board has no jurisdiction without taking re-
quired oath; Webber v. Aldrich, 2 N. H. 462, holding action for goods
illegally taken in trespass not assumpsit; Cloutman v. Pike, 7 N. H. 211,
holding collector, defendant for distress, must show a tax legally granted;
Smith V. Shaw, 12 Johns. 267, 272, holding commanding officer of court-
martial also liable; Mills v. Martin, 19 Johns. 31, 35, holding one justify-
ing: under judgment of court-martial must affirmatively show jurisdiction ;
Bell V. Tooley, 11 Ired. 607, holding acts of court-martial, not regularly
organized, void; School Directors v. Carlisle Bank, 8 Watts, 294, holding
act of board in levying tax void ; Porter v. Webb, 4 Yerg. 162, holding, in
action against sheriff for nonreturn, all necessary facts must appear, to
give court jurisdiction; Bates v. Hazeltine, 1 Vt. 84, holding one justifying
as tax collector must show authorizing facts ; Warner v. Stockwell, 9 Vt.
17, holding imposition of fines, by military officers, acting within their
jurisdiction, are conclusive; Barrett v. Crane, 16 Vt. 251, 254, 257, hold-
ing proceedings of court of limited jurisdiction exceeding its jurisdiction
are void; Driscoll v. Place, 44 Vt. 258, holding process gives no protection,
court being without jurisdiction; Ex parte Henderson, 11 Fed. Cas. 1068,
discharging prisoner on habeas corpus where court-martial was without
jurisdiction; In re Reynolds, 20 Fed. Cas. 605, holding State court may,
under habeas corpus, discharge a prisoner illegally held; Lampert v. Gas
Light Co., 14 Mo. App. 387, arguendo.
Distinguished in Ex parte Watkins, 3 Pet. 209, 7 L. Ed. 655, involving a
court of general jurisdiction ; Noble v. Railroad, 147 U. S. 173, 37 L. Ed.
126, 13 Sup. Ct. 273, holding that quasi- jurisdictional facts, once estab-
lished, cannot be collaterally attacked; PuUan v. Kinsinger, 2 Abb. (U. S.)
101, 104, Fed. Cas. 11,463, where statute provides that no suit to restrain
the collection of taxes may be maintained^ applies where an officer has the
3 Cr. 337-^56 NOTES ON U. S. REPORTS. 262
power, however erroneous his decision may be; Borden v. State, 11 Ark.
549, 54 Am. Dec. 239, holding judgment of Superior Court not void, though
party had no notice ; McCraw v. Welch, 2 Colo. 290, holding where attach-
ment is issued upon a defective bond, and subsequently a good bond is
filed, attachment becomes valid from the beginning; Milburn v. Oilman, 11
Mo. 69, holding person acting under erroneous judgment not liable if court
.had jurisdiction; Savacool v. Boughton, 5 Wend. 179, 180, 21 Am. Dec. 188,
189, holding ministerial officer is protected, if process on its face shows
jurisdiction of subject matter; as also in Parker v. Walrod, 16 Wend. 518,
619, 30 Am. Dec. 128; Chegary v. Jenkins, 5 N. Y. 382, holding warrant
in due form, to collect taxes, is a protection, whether tax was legally issued
or not ; Commonwealth v. Cornman, 4 Serg. & R. 100, holding court-martial
has jurisdiction over one on list of exempts, who did not appear to claim
his privilege; Miller v, Grice, 1 Rich. 153, holding one acting under war-
rant, lack of junsdiction not appearing on its face, is not liable (cited dis-
senting opinion of same case, p. 156) ; Delaware R. R. Co. v. Prettyman, 7
Fed. Cas. 410, holding collector acting under assessor who acts within his
jurisdiction is not a trespasser.
Distinguished in St. Lawrence Co. v. Holt, 51 W. Va. 364, 41 S. E. 356,
holding adjudication that particular case is of equitable jurisdiction can-
not be collaterally attacked.
Justice of peace of District of Oolmnhia is ofAcer of goyemment of United
States and exempt from militia duty.
Approved in dissenting opinion in United States v. O'Neal, 10 App. D. C
248, majority holding that no appeal lies from judgment of justice of the
peace of the District of Columbia in any case tried before him witit jury.
Civil liability of military and naval officers. Note, 42 Am. Dec. 56.
Responsibility of soldiers and militiamen. Note, L. R. A. 1915A, 1173.
8 Cr. 337-356, 2 !■. Ed. 459, UNITED STATES v. GSUNDT.
Forfeiture as remedy for false oath in registering vesseL
Approved in Wilmington City Ry. Co. v. Wilmington etc, Ry. Co., 8 Del.
Ch. 508, 46 Atl. 21, holding corporation granted franchise, having failed
to use it, franchise became forfeited and vested in public; State v. King,
64 W. Va. 69, 63 S. E. 495, holding forfeited title to land for nonpayment
of taxes vested in State and its purchasers at tax sale; 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
w«re six coal veins in land there was reservation of title in coal; Wilson
V. Fisher, 172 Mo. 20, 72 S. W. 668, arguendo ; Caldwell v. United States,
8 How. 382, 12 L. Ed. 1122, holding title is consummated after condemna-
tion, but intermediate sales are avoided; The Distilled Spirits, 11 Wall.
368, 20 L. Ed. 171> declaring that forfeiture to United States defeats inno-
cent purchaser; Henderson's Distilled Spirits, 14 Wall. 56, 58, 20 L. Ed. 817,
holding, where forfeiture is absolute, decree of condemnation relates back
to time of commission; Burbank v. Conrad, 96 U. 8. 300, 24 L. Ed. 726,
253 UNITED STATES v. GRUNDY. 3 Cr. 337-356
holding title vested from judgment in confiscation proceedings; United
SUtes V. Fifty-six Barrels of Whisky, 1 Abb. (U. S.) 105, Fed. Cas. 15,095,
holding where forfeiture is in direct terms, it occurs from time of offense;
United States v. One Hundred Barrels of Spirits, 2 Abb. (U. S.) 314, Fed.
Cas. 15.948, holding, unless words of statute ar3 absolute, forfeiture will
not defeat bona fide purchaser; United States v. York Street Flax, etc.,
17 Blatchf. 139, Fed. Cas. 16,781, holding, in action for value of goods for-
feited, recovery not limited to price received by defendant; The Florenzo,
Blatchf. & H. 60, 61, Fed. Cas. 4886, holding judgment of forfeiture relates
back to time of sale to alien ; United States v. One Hundred Barrels Spirits,
1 Dill. 57, Fed. Cas. 15,948, holding, unless statute is absolute, title of bona
fide purchasers not defeated; The Brig Mars, 1 Gall. 195, Fed. Cas. 9106,
holding that innocent purchaser is protected from United States in all
cases ; The Mary Celeste, 2 Low, 357, Fed. Cas. 9202, holding if forfeiture
is not absolute innocent purchaser is protectefi; The Steamboat Laurel,
Newb. 273, Fed. Cas. 15,569, holding, where no forfeiture was declared by
statute, government took subject to lien of materialmen; The Kate Heron,
6 Sawy. 110, Fed. Cas. 7619, holding time forfeiture takes effect depends
on intention of Congress; Six Hundred Tons of Iron Ore, 9 Fed. 600,
holding freight earned before government elects has first right; Trustees
of University v. Winston, 5 Stew. & P. 27, holding forfeiture being abso-
lute, it takes place at once ; Gills v. Taylor, 3 Port. 185, holding failure to
pay final payment extinguished his interest in land ; Selma etc. R. R. Co. ^^
Tipton, 5 ^a. 802, 89 Am. Dec. S50, holding right of corporation to for-
feiture is eomulative to right to sue for subscnption ; ^Oakland R. R. Co. v.
Oakland etc. Co., 45 Cal. 374, 13 Am. Rep. 185, holding' under statute title
Tests in State at once; Areata v. Areata etc. R. R. Co., 92 Cal. 647, 28^Pac.
678, holding, in absence of statute, right terminates on judgment of for-
feiture; State V. Emmert, 19 Kan. 549, holding failure to pay, by pur-
chaser of school land, ipso facto, forfeits ; Summers v. Clark, 29 La. Ann.
102, holding where statute is absolute, goods vest immediately in govern-
ment; Mitchell V. Cunningham, 29 Me. 382, holding that government title
to vessel fishing without license vests upon condemnation; IngersoU v.
Jackson, 13 Mass. 185, holding where statute was alternative, no forfeiture
until seizure; Hamilton v. O'Neil, 9 Mo. 18, holding widow's right to dower
is absolute until divested by-election; Welch v. Anderson, 28 Mo. 299,
holding widow has no right until election is made ; also in Matney v. Gra-
ham, 50 Mo. 564, and Brawf ord v. Wolfe, 103 Mo. 399, 15 S. W. 428 ; Scott
V. Wilson, 3 N. H. 323, holding entire title of owner divested by forfeiture ;
Fontaine v. Phoenix Ins. Co., 11 Johns. 300, holding where statute is abso-
lute, forfeiture occurs at once; Tracey v. Corse, 58 N. Y. 149, holding title
to property seized for revenue is divested only on judgment; Hollman v.
Peebles, 1 Tex. 703, holding abandonment of public land ipso facto restores
it to government; United States v. Haun, 26 Fed. Cas. 230, holding prop-
erty smuggled into United States under Federal court's jurisdiction ; United
States V. Hamilton, 26 Fed. Cas. 91, holding forfeiture of vessel does not
vest until after election ; Schenck v. Peay, 21 Fed. Cas. 683, holding, unless
intention is apparent, courts will nojt construe a forfeiture to be ipso facto.
\
3 Cr. 367-398 NOTES ON U. S. REPORTS. 254
Distinguished in The Neptune, 3 Wheat. 607, 4 L. Ed. 471, forfeiting
vessel for use of fraudulent certificate of registry; United States v. Coffee,
8 Cr. 408, 3 L. Ed. 606, holding that where statute is absolute forfeiture
occurs on commission of offense; United States v. Maillard, 4 Ben. 467,
Fed. Cas. 15,709, where the commission of the offense was a question of
fact; United States v. Bark Reindeer, 2 Cliff. 68, Fed. Cas. 16,144, and
United States v. Distilled Spirits, 3 Cliff. 315, 317, Fed Cas. 16,306, holding^
where words in statute are absolute, title vests from time of wrong ; Parker
V. United States, 2 Wash. C. C. 363, Fed. Cas. 10,751, holding under statute
providing if vessel '"shall" be seized, government may sue, forfeiture takes
place from time of wrong; Hornbrook v. Elm Grove, 40 W. Va. 548, 21
S. E. 852, holding State alone can enforce forfeiture of charter of a munici-
pality; 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.
When forfeiture of property under statute takes effect. Note, 7 Ann.
Gas. 899, 900.
Witness Is not bound to answer If pecuniary Interest will be affected.
Denied in Brooks v. McKinney, 4 Scam. 315, holdmg party though not
to record compelled to testify against his own interest; Bull v. Loveland,
10 Pick. 12, holding witness bound to answer, though his interest is affected.
Privilege of witness to refuse to testify on ground that testimony
will subject him to civil action or be against his interests. Note,
^ Ann. Gas. 1912A, 388.
Protection against self-crimination in civil cases. Note, 29 L. B. A«
816.
Miscellaneous. . Cited in United States v. Willetts, 5 Ben. 223, Fed. Cas.
16,699, but not in point.
S Or. 357-398, 2 L. Ed. 466, MABINE INS. OO. ▼. TUCKER.
Intended deviation is not sufficient to defeat insurance.
Cited in dissenting opinion in Thames etc. Ins. Co. v. O'Connell, 86 Fed.
154, 56 U. S. App. 682, majority holding intent to use a forbidden
port exonerated company; Lawrence v. Ocean Ins. Co., 11 Johns. 261, 263,
265, holding an intended deviation will not discharge the policy; also in
Snow V. Insurance Co., 48 N. Y. 630, holding similarly.
Distinguished in Merrill v. Ins. Co., 3 Allen, 249, 252, holding policy de-
feated by substitution of new port of discharge, though at time of loss
vessel is on regular course.
Vitiation of policy by deviation. Note, 9 E. R. 0. 364.
Where vessel is captored, recaptured and sold, insured may abandon for
total loss.
Cited in Peele v. Merchants' Ins. Co., 3 Mason, 56, Fed. Cas. 10,905,
holding owner had right to abandon vessel in desperate situation, though
255 UNITED STATES v. HETH. 3 Cr. 399-414
injury was less than half the value; Thompson v. Marine Ins. Co., 2 La.
240, 22 Am. Dec. 136, holding if prospect of getting possession of vessel be
feeble, may abandon; Greene v. Ins. Co., 9 Allen, 226, holding inability to
procure means to refit vessel, amounts to constructive total loss; Post v.
Ins. Co., 10 Johns. 84, holding owners entitled to recover for total loss,
where ship, when recovered, could not prosecute her voyage.
When abandonment may be made and total loss claimed under marine
policy. Note, 1 E. R. 0. 20.
Miscellaneous. Cited in Kimbal v. Jenkins, 11 Fla. 125, 89 Am. Dec.
241. May v. Wright, 1 Overt. 389, and Dunn v. Wagoner, 3 Yerg. 59, to
points not decided in principal case.
>..
a Cr. 399-414, 2 L. Ed. 479, UNITED STATES Y. HETH.
Retroactive construction 1^ to be avoided when possible:
Approved in Union Pacific R. Co. v. Laramie Stockyards Co., 231 U. S.
199, 58 L. Ed. 182, 34 Sup. Ct. 101, holding that act of June 24, 1912, per-
mitting State statutes of limitations to apply to adverse possession of
rijrhts of way granted to railroad company, was not retroactive; United
f^tates Fidelity & Guaranty Co. v. United States, 209 U. S. 314, 52 L. Ed.
807, 28 Sup. Ct. 537, holding act of February 24, 1906, does not affect
actions based on rights of materialmen accruing prior to its passage ; In re
Wehrli, 157 Fed. 938, and United States v. Lengyel, 220 Fed. 724, both
holding that act of June 29, 1906, in re limit in which to file petition for
naturalization, and instead of cutting off privileges, extended time of aliens
to file ; United States v. Tsu ji Suekichi, 199 Fed. 753, 118 C. C. A. 188,
holding that act of March 26, 1910, does not apply to case of alien deported
before its passage for offense; In re United States Restaurant & Realty
Co., 187 Fed. 119, 109 C. C. A. 36, holding that corporation not within
category of possible bankrupts, making general assignment prior to pas-
sage of act of June 25, 1910, cannot be subject to bankruptcy proceedings ;
United States v. North German Lloyd S. S. Co., 185 Fed. 162, 165, holding
that that portion of the act of February 20, 1907, holding steamship com-
panies liable for expense of deportation of prostitutes, not applicable to
entries of such persons before passage of act; United States v. Schofield,
182 Fed. 243, holding that act of February 24, 1905, does not affect con-
tracts made before its passage; Seaboard Steel Casting Co. v. William R.
Trigg Co., 124 Fed. 78, holding 32 Stat. 797, chapter 487, § 2, making ap-
pointment of receiver, because of insolvency, an act of bankruptcy is not
retroactive; Dodge v. Nevada Nat. Bank, 109 Fed. 731, holding Cal. Pol.
Code, § 3608, providing foil taxation of national bank shares was not retro-
active; Strong V. United States, 93 Fed. 259, holding act of June 27, 1898,
decreasing jurisdiction of District Court over actions by United States
officers for compensation, does not apply to pending suits; Curtis v.
Boquillas Land etc. Co., 9 Ariz. 66, 76 Pac. 613, holding that Revised Stat-
utes of 1901, paragraph 2938, relating to limiting time within which to
bring actions for recovery of realty, has no application to action begun
3 Cr. 399-414 NOTES ON U. S. REPORTS. 256
before statute took effect; United States v. McPhee, 51 Colo. 431, 118 Pac.
998, liolding that act of Congress of February 24, 1906, does not prevent
suit on bond given prior to act; Ducey v. Patterson, 37 Colo. 227, 119 Am.
St. Rep. 284, 11 Ann. Gas. 393, 9 L. B. A. (N. S.) 1066, 86 Pac. 112, hold-
ing statute providing that release of one or more joint debtors shall not
release all does not apply to releases made before statute went into effect ;
Jons 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 revived, does not apply to judji:-
^ents existing at its passage; De Ferrahti v. Lyndmark, 30 App. D. C.
422, holding that although applicant for patent had filed application there-
for prior to passage of the act of Congress of March 3, 1903, it constituted
no vested right that was beyond power of Congress to affect; Pratt v.
Union Nat. Bank, 79 N. J. L. 119, 76 Atl. 314, holding that statute limiting:
time for commencing action for forgery had no application to case of
forgery committed prior to passage of act; Crane v. Cox, 18 N. M. 382,
137 Pac. 590, holding section 34, chapter 84, Laws of 1913, of New Mexico,
relating to sale of property for delinquent taxes, authorized sale for taxes
delinquent prior to passage of act; Jacobus v. Colgate, 217 N. Y. 240, 111
N. E. 839, holding that under section 982a, Code of Civil Procedure of
New York, action could be maintained there for injury to personalty in
sister State; Casey v. Bingham, 37 Okl. 491, 132 Pac. 666, holding that
provision of act of May 27, 1908, relating to contracts of Chickasa^s for
sale of lands, did not affect deed made after land was filed and not subject
to restrictions; Collins etc. Daugherty v. Sherwood, 50 W. Va. 146, 40
S. E. 608, holding Code 1899, chapter 31, § 25, is not retroactive; Solra v.
Waterson, 17 Wall. 599, 21 L. Ed. 738, construing statute of limitations;
Twenty Per Cent Cases, 20 Wall. 187, 22 L. Ed. 341, as to act reducing
salaries; Chew Heong v. United States, 112 U. S. 559, 28 L. Ed. 778, 5
Sup. Ct. 266, construing Chinese restriction act; United States v. Burr, 159
U. S. 82, 40 L. Ed. 83, 15 Sup. Ct. 1004, construing tariff act not to apply
to transactions completed before its enactment; The Circassian, 11 Blatchf.
481, Fed. Cas. 2726, holding rule of admiralty cannot revive claim almost
barred; Fuller v. United States, 48 Fed. 655, holding amendment decreas-
ing interval between sums paid soldiers, not retrospective; United States
V. National Exch. Bank, 53 Fed. 10, 9 U. S. App. 145, holding court has
no jurisdiction to review judgment rendered before court was created;
Central Trust Co. v. Sheffield etc. Co., 60 Fed. 16, holding act regulating
sale of property not applicable to judgments rendered prior to act: Mc-
Clellan v. Pyeatt, 66 Fed. 846, 32 U. S. App. 104, holding statute of frauds
to have no retrospective effect; Anglo-California Bank v. Secretary of
Treasury, 76 Fed. 755, 48 U. S. App. 51, holding goods in bonded warehouse
are not included in reduction of tariff act passed subsequently; Lawrence
V. Louisville, 96 Ky. 599, 49 Am. St. Rep. 311, 29 S. W. 451, applying
rule in statute of limitation ; appeal of Lambard, 88 Me. 591, 34 Atl. 531,
holding property of one d3dng* before, but whose will was probated after
act, not subject to tax; Gillette v. Hibbard, 3 Mont. 417, giving statute of
limitation no retrospective effect; Fitzgerald v. Fitzgerald etc. Co., 41
257 MANELLA v. BARRY. 3 Cr. 416-448
Keb. 462, 59 N. W. 862, holding Interstate Commerce Act abrogated existing
special riates based upon contract; dissenting opinion in Ri«h v. Flanders,
39 N. H. 367, majority holding statute removing disqualification of interest
in witness, to apply to existing cases; Berdan v. Van Riper, 16 N. J. L.
15, giving act relating to joint tenants prospective operation only; Mc-
Govern v. Connell, 43 N. J. L. 109, holding act providing for execution
applies only to judgments obtained after its passage; Williamson v.
N. J. S. B. R. Co., 29 N. J. Eq. 334, refusing to give statute retroactive
effect, especially where a different construction would render statute uncon*
stitutional; Boylan v. Kelly, 36--N. J. Eq. 334, giving chattel mortgage act
prospective operation only ; Potter v. Rio Arriba etc. Co., 4 N. M. 326, 327,
17 Pae. 613, 614, holding statute for forfeiture of lands of aliens no defense
to specific performance' of contract made before statute; American Inv.
Co. V. Thayer, 7 S. D. 74, 63 N. W. 234, holding unless intent is dear,
statute will not be given retroactive effect; Ex parte Graham, 12 Rich.
Eq. 283, as to repealing act, exempting from military service; Stewart v.
Vandervort, 34 W. Va. 530, 12 S. E. 739, refusing to give retroactive effect
to marriage laws; The Circassian, 5 Fed. Cas. 692, holding same as to
amendment of rule in admiralty; Nor. M. L. Ins. Co. v. Seaman, 80 Fed.
359, holding statute that no Federal judge shall ''hereafter" appoint a
relative a court officer, does not invalidate appointment previously made;
The Circassian, 11 Blatchf. 481, Fed. Cas. 2720a, amended twelfth rule of
1872, permitting materialmen to proceed in rem or in personam, does not
apply to suits brought or supplies furnished before rule; In re Mont-
gomery, 12 N. B. R. 321, 17 Fed. Cas. 625, construing amendment to
bankruptcy act.
Distin^shed in Cook v. United States, 138 U. S. 181, 34 L. Ed« 912,
11 Sup. Ct. 274, where intent of Congress that act should operate retro-
actively was clear and positive; i^ also in In re Perkins, 6 Biss. 187, Fed.
Caa, 10,983, as to repealing law; Southern Wire Co. v. Railroad Co., 38
Mo. App. 198, giving Interstate Commerce Act retrospective effect.
Ambiguous words are to be taken most strongly against lawmakers.
Cited United States v. fiuggett, 40 Fed. 643, refusing to enlarge criminal
statute.
Miscellaneous. Cited in Swaim v. Buck, 40 Miss. 302, holding contract
of employment of government official not within the obligation clause of
the Constitution.
3 er. 41S-448, 2 L. Bd. 484, MAKEUP Y. BABBT.
Factor foQoivliig apedfic instruction from general agent at variance with
general instructions from principal, held not to have deviated from his
insCfiMStions.
Cited in The Joseph Grant, 1 Biss. 197, Fed. Cas. 7538, holding owner
not bound by bill of lading signed in blank by master; Ferguson v. Porter,
3 Fla. 38, holding factor bound to follow instructions, unless inconsistent
with special agreement with principal; Hays v. Stone, 7 Hill, 135, hold*
ing agent must follow instructions.
1—17
\
\
3 Cr. 448-453 NOTES ON U. S. REPORTS, 258
S Cr. 448-453, 2 L. Ed. 495, EX PASTE BUBFOBI>.
Supreme Court has power to isroe writ of habeas corpus to examine came
of commitment by Circuit Court.
Approved in Ex parte Moran, 144 Fed. 600, detennining power of Cir-
cuit Court of Appeals to issue habeas corpus where one was imprisoned on
conviction of capital crime in Oklahoma; Ex parte Watkins, 7 Pet. 573,
581, 8 L. Ed« 788, 701, holding court has power to issue writ, where it
was revising effect of process of Circuit Court; Decatur v. Paulding, 14
Pet. 620, 10 L. Ed. 622, holding the issue of writ to be an exercise of
appellate jurisdiction; Ex parte McCardle, 6 Wall. 324, 18 L. Ed« 817,
holding, under statute, appeal lies to this court from judgments on writs
in Circuit Court ; Ex parte Yerger, 8 Wall. 98, 10 L. Ed. 336, holding court
may issue writ in the exercise of its appellate jurisdiction ; Ex parte Lai^,
18 Wall. 166, 205, 21 L. Ed. 875, 888, holding court will issue writ to ex-
amine authority of court in committing defendant; Ex parte Virginia, 100
U. S, 343, 25 L. Ed. 678, Ex parte Siebold, 100 U. S. 374,-25 L. Ed. 718,
issuing writ to inquire into imprisonment under unconstitutional act; In re
Barry, 136 U. S. 613, 34 L. Ed. 509, 42 Fed. 124, holding writ wUl not issue
to release child unlawfully detained by grandparents; In re Martin, 5
Blatchf. 306, Fed. Cas. 9151, holding, under statute. Supreme Court may,
issue certiorari, as ancillary to habeas corpus; Ex parte Perkins, 29 Fed.
Cas. 908, releasing on writ, person imprisoned for contempt by court with*
out jurisdiction; King v. Asylum, 64 Fed. 343, 21 U. S. App. 481, holding
Circuit Court had no jurisdiction to determine the custody of an insane
person, by habeas corpus; State v. Neel, 48 Ark. 288, 3 S. W. 633, holding
Supreme Court has jurisdiction to review proceedings of courts and judges
upon application for habeas corpus; State v. Gleason, 12 Fla. 203, holding,
under statute. Supreme Court could issue writs; The People v. Turner, 1
Cal. 147, 62 Am. Dec. 298, holding Supreme Court could exercise its appel-
late jurisdiction by mandamus, habeas corpus, etc.; In re Snell, 31 Minn.
Ill, 16 N. W. 692, holding Supreme Court has original jurisdiction of
habeas corpus; Peltier v. Penningtoil) 14 N. J. L. 318, refusing to release
prisoner on civil process, for irregularity in process; In re Kaine, 14 Fed.
Cas. 83, refusing to grant writ, unless all the proceedings are laid before
the judge ; In re Kaine, 14 Fed. Cas. 88, holding Federal court can examine
into legality of an imprisonment.
Distinguished in People v. Murphy, 188 111. 149, 58 N. E. 985, denying
habeas corpus where petitioner was indicted for murder, and errors were
mere irregidarities ; Ex parte Watkins, 3 Pet. 208, 7 L. Ed. 655, holding
this court cannot by habeas corpus revise conviction of prisoner by Cir-
cuit Court; In re Kaine, 14 How. 124, 125, 126, 130, 134, 14 L. Ed. 853, 354,
356, 358, holding Supreme Court could not issue writ, Circuit Court having
dismissed one; In re Metzger, 5 How. 189, 12 L. Ed. 110, holding court
cannot issue writ, where judge in chambers surrendered prisoner, this not
being appellate jurisdiction.
Denied in dissenting opinion in Ex parte BoUman, 4 Cr. 103, 107, 2 L. Ed.
564, 565, majority holding Supreme Court may issue writ to examine com-
mitment by Circuit Court.
Contempt procedure in Federal court. Note, Ann. Cas. 1915D, 1060.
259 HOPKIRK v. BELL. 3 Cr. 454-458
Warrant of commitment by Justice of peace mnst be under oatb and state
a good cause.
Approved in United States v. Baumert, 179 Fed. 739, holding that on an
information made by district attorney alone on his information and belief,
no warrant should issue; Ex parte Owen, 10 Okl. Cr. 292, 136 Pac. 200,
Salter v. State, 2 Okl. Cr. 469, 471, 139 Am. St. Rep. 936, 25 L. R. A.
(N. S.) 60, 102 Pac. 721, 722, De Graff v. State, 2 Qkl. Cr. 628, 103 Pac.
541, all holding that where information was supported solely by affidavit
not positively sworn to, but simply verified as a matter of belief, warrant
should not issue; United States v. Martin, 9 Sawy. 99, 17 Fed. 166, holding
warrant chai^ng "murder" sufficient; ^United States v. Tureaud, 20 Fed.
623, holding information must be based on affidavits of peirsons with
knowledge; Erwin v. United States, 37 Fed. 486, holding a writ of commit-
ment should set forth cause of detention; In re Gburdin, 45 Fed. 842,
holding that affidavits are required to issuance of warrants; Eic. parte
Dimmig, 74 Cal. 167, 15 Pac. 620, holding warrant upon affidavit of opinion
insufficient; al^o, State v. Gleason, 32 Kan. 251, 4 Pac. 366, and State v.
Wimbush, 9 S. C. 316, holding warrant not sworn to void; In re Metzger,
17 Fed. Cas. 233, holding no one can be extradited, unless judge declares
probable cause.
Distinguished in Clark v. Hampton, 163 Ky. 700, 174 S. W. 491, holding
that where warrant issued and arrest and imprisonment followed without
information having been in writing and filed with magistrate, he incurred
no civil liability; Sprigg v. Stump, 7 Sawy. 288, 8 Fed. 213, where it was
held not to apply to warrant for examination of alleged lunatic ; Territory
V. Cutinola, 4 N. M. 102, 14 Pac. 811, holding it is not necessary that infor-
mation filed by ex-officio prosecuting attorney be sworn to ; Commonwealth
V. Muiray, 2 Va. Cas. 507, holding it is not necessary that warrant of
commitment set forth that party is charged under oath.
Miscellaneous. Cited in Hyde v. Shine, 199 U. S. 85, 50 L. Ed. 98, 25
Sup. Ct. 760, as to power of Circuit Court to issue certiorari auxiliary to
habeas corpus.
I
3 Cr. 454-468, 2 Ik Ed. 497, HOPEIBE ▼. BELL.
Peace treaty of 1783 between England and America stayed operation of
statute of limltationfl against Brltifih debts.
Cited in Pollard v. Kibbe, 14 Pet. 412, 10 L. Ed. 519, holding treaty to
be supreme law of the land ; Hanger v. Abbott, 6 Wall. 541, 18 L. Ed. 943,
holding war merely suspends the nmning of the statute; Braun v. Saner-
wein, 10 Wall. 222, 19 L. Ed. 896, holding statute of limitations suspended
by act of Congress, while suspension was enforced ; Brown v. Hiatt^ 1 Dill.
386, Fed. Cas. 2011, holding statute suspended by war; Dunlop v. Alex-
ander, 1 Cr. C. C. 498, Fed. Cas. 4166, holding bar of statute of limita-
tions removed by treaty of peace; Pollard v. Kibbe, 14 Pet. 412, 10 L. Ed»
519, arguendo.
3 Cr. 468-496 NOTES ON U. S. REPORTS. 260
3 Or. 458-492, 2 L. Ed. 498, MALEY ▼. BOATTUOK.
Foreign sentence of condemnation as good prise is not conclusive' that
title was not in neutraL
Approved in McCann v. Ellis, 172 Ala. 72, 56 South. 306, holding that
where only question involved was as to whether instrument was will, find-
ing establishing status of parties is not conclusive on that issue; Gushing
V. Laird, 107 U. S. 80, 27 L. Ed* S95, 2 Sup. Ct. 204, holding final decree
of restitution to only claimant by prize court does not determine title;
Bradstreet v. Ins. Co., 3 Sumn. 614, Fed. Cas. 1793, holding sentence in
rem of admiralty court, with jurisdiction, is conclusive; Bailey v. Insur-
ance Co., 3 Brev. (S. C.) 360, holding condemnation of foreign court as
good prize, does not falsify the warrant of neutrality; Pinson v. Ivey,
] Terg. 350, holding decision of board with jurisdiction is conclusive. See
note on this subject in 75 Am. Dec. 724.
Judgments in rem and their effect as res adjudicata. Note, 75 Am.
Dec. 724.
Conclusiveness in judgment in rem. Note, 11 £. £. 0. 47.
Kentral vessel resisting search or attempting to enter Uockaded port may
1>e condemned.
Cited in The Baigorry, 2 Wall. 481, 17 L. Ed. 881, holding vessel of
neutral engaged in trade of enemy subject to condemnation ; The George,
1 Mason, 27, Fed. Cas. 5328, holding that to constitute probable cause for
capture, prima facie evidence to condemn, unnecessary; The Marinna
Flora, 3 Mason, 123, Fed. Cas. 9080, holding capture in mutual combat
by mistake lawful; The Ship La Manche, 2 Sprague, 214, Fed. Cas. 8004,
holding captors not liable, where vessel presents probable . cause for cap-
ture; Fay V. Montgomery, 1 Curt. 269, Fed. Cas. 4709, in defense to 'charge
of illegal seizure party must show there is really a question of prize to
be tried; Parkhill, 18 Fed. Cas. 1187, holding person in a hostile country
has no claim for merchant vessel captured.
Damages for unlawful seizure of vessel is Talue of vessel and cargo.
Approved in The Schooner Lively and Cai^o,' 1 Gall. 322, 324, Fed. Cas.
8403, allowing prize, cost and interest; The Mary J. Vaughan etc., 2 Ben.
50, Fed. Cas. 9217, holding damages for vessel lost in collision to be value
at time and place of shipment.
Miscellaneous. Cited in Price v. Thornton, 10 Mo. 138, holding master
liable for tort of captain ; Manro v. Alameida, 10 Wheat. 486, 6 L. Ed. 372,
but not in point ; as also in N. J. Nav. Co. v. Bank, 6 How. 432, 12 L. Ed.
503, and Burke v. Trevitt, 1 Mason, 102, Fed. Cas. 2163.
3 Or. 492-496, 2 L. Ed. 509, LAWBASON v. MASON.
Assumpsit against one who offers in writing to become security for future
obligation of another liy one wbo acts upon offer. ■
Approved in Hanlon v. Smith, 175 Fed. 198, holding that wher^ receivers
operated railroad during their management, purchasing company was
201 KNOX V. SUMMERS- 3 Cr. 496-498
liable for snch expenses of operation ; Opdyke ^ Pacific R. R., 3 Dill. 73,
Fed. Cas. 10,546, holding guaranty of bond follows it- to every holder ; '
Smith V. Ledyard, 49 Ala. 282, holding one advancing money on faith
of letter of credit can sue in his own name ; Laf ai^e v. Harrison, 70 Cal.
386, 59 Am. Rep. 420, 9 Pac. 262, holding if party could reasonably infer
from letter, authority to^ve credit, waiter is liable for damage incurred;
Smith V. Bell, 30 Ga. 920, applying rule and holding letter actionable;
Birckhead v. Brown, 5 Hill, 643, holding letter of credit, addressed to all,
may be enforced by anyone acting upon it ; Lonsdale v. Bank, 18 Ohio, 142,
holding action maintainable by third x)erson who has taken bills on faith
of letter for breach of promise to accept; Northumberland Bank v. Eyer,
58 Pa. St. 103, holding guaranty on note is same as general letter of credit ;
Griffin ▼. Rembert, 2 S. C. 416, holding any party advancing on fait^. of
letter could sue; as also Lowry ▼. Adams, 22 Vt. 167, and McNaughton v.
Conklings, 9 Wis. 322.
Distingniished in Bank v. Benoist, 10 Mo. 525, where bill was not dis-
counted on faith of guaranty; Evansville Bank v. Kaufman, 93 N. T. 286,
45 Am. Bep. 218, holding that special guaranty can only be accepted by
one person ; Fahnestock v. Schoyer, 9 Watts, 103, deciding that holder of a
specif^ bill "accepted" must sue acceptor in name of drawer; Roman v.
iSerena, 40 Tex. 317, holding the letter of credit a special contract and non-
negotiable.
Letters of credit. Note, 28 Am. Bep. 347^
If money be delivered by A to B, to pay over to O, tlie latter may sue B
m SMUmpBtt.
Cited approvingly to this point in Johnson v. Collins, 14 Iowa, 65.
Miscellaneous. Cited in Hidden v. Bishop, 5 R. 1, 32^ but not in point.
3 Cr. 496-498, 2 L. Ed. 510, KNOX ▼. SUMMESa
Appearance by attorney cures all i^sguladty of proeesa
Approved in Barnes v. Western Union Tel. Co., 120 Fed. 554, holding
general demurrer and answer after special appearance waives irr^^arity
in service of process; Atkins v. The Disintegrating Co., 18 Wall. 298, 21
L. Ed. 843, holding appearance equivalent to service 6f regulai: process;
McCoy V. Lemons, Hempst. 216, Fed. Cas. 8730a, holding want of notice
eured by appearance; Flanders v. Insurance Co., 3 Mason, 160, Fed. Cas.
4852, holding entering of general appearance waives objection to service;
Romaine v. Union Ins. Co., 28 Fed. 638, to avoid waiver of irregular ser-
vice one must appear specially; Piatt v. Manning, 34 Fed. 818, holding
appearance cures defect in service; Pearce v. Thackeray, 13 Fla. 577, and
Barro v. Gordon, 21 Fla. 36, holding appearance waives any irregularity
in service; EastoH v. Altum, 1 Scam. 251, holding irregularity in process,
void and voidable, cured by appearance; Dyson v. Brandt, 9 Mart. ^La.)
(0. S.) 497, holding that appearance of insolvent debtor cures want of
fitation; Maine Bank vf Hervey, 21. Me. 45, holding general appearance
cures all defect in service; Smith v. Robinson, 13 Met. 167, holding appear-
3 Cr. 603-514 NOTES ON U. S. REPORTS. 262
ance waives irregularity in service of writ; Gray v. Young, Harp. L.
(S. C.) 40, holding by pleading one waives objections to regularity of at-
tachment; Wilson v. Pierce, 30 Fed. Cas. 154, holding general appearance
waives personal privilege as to jurisdiction ; Clarke v. New Jersey St.- etc.
Ct., 1 Story, 540, Fed. Cas. 2859, arguendo.
Distinguished in Buford v. Hickman, HempSt. 234, Fed. Cas. 2114a,
holding that record must furnish legal evidence of appearance; Beall v.
Blake, 13 Ga. 221, 58 Am. Dec. 515, holding that defect totaling invalidat-
ing proceedings not waived; Converse v. Warren, 4 Jowa, 172, holding that
one objecting to defective service, and forced to plead, does not waive
objection; Gardner v. James, 5 R. I. 242, holding an appearance to plead
in abatement not a waiver of that right.
S Or. 608-518, 2 Ii. Ed. 612, RANDOLPH ▼. WAKB.
Claim of many years' standing, tlia witnesses being for the most part dead,
h^ld stalei
Approved in Gibbons v. Duley, 7 Mackey (D. C), 329, refusing to remove
cloud on title of long standing; Covington v. Griffin, 98 Va. 128, 84 ^S. E.
975, holding allegation of fraud or breach of trust necessary to sustain
laches.
Customs and their validity. Note, 60 Am. Dec. 104.
Duty of factor to insure goods of principal. Note, 14 Aan. Oaa. 680.
Liability of agent for failure to insure principal's property. Note, 18
£. B. 0. 406.
8 Or. 614, 2 L. Sd. 616^ FIELD ▼. lOLTOK.
Awarded wli«re citation served but not sent up with the transcript of
the record.
Approved in State etc. Fourth Nat. Bank of Phila. etc. v. Johnson, 103
Wis. 625, 79 N. W. 1091, allowing a certiorari as ancillary to mandamus
to inferior court.
a Or. 614, 2 L. Ed. 616, WINOHESTEB ▼. 7A0K80K.
Where parties do not appear upon record to be citizens of different States,
writ of error will be dlsmiBsed.
Cited in dissenting opinion in McNutt v. Bland, 2 How. 22, 11 L. Ed.
164, majority holding if real plaintiff had right to sue, incapacity of nomi-
nal plaintiff will not oust court of jurisdiction; Speigle v. Meredith, 4 Biss.
126, Fed. Cas. 13,227, dismissing bill because it did not allege jurisdic-
tional facts. As also in Donaldson v. Hazen, Hempst. 424, Fed. Cas. 3984.
Costs allowed' pn dismissal of writ of error for want of Jurisdiction, if
original defendant be defendant in error.
Cited in Inglee v. Coolidge, 2 Wheat. 368, 4 L. Ed. 263, court refusing
to allow costs on dismissal for want of jurisdiction ; Homthall v. Collector,
9 Walt. 567, 19 L. Ed. 562, not allowing costs where bill was dismissed for
263 WINCHESTER v. JACKSON. 3 Cr. 514
want of jurisdiction apparent on its face ; Bumham v. Bangeley, 2 Wood.
& M. 419, 421, Fed. Cas. 2177, holding court has no power to give costs
on dismissing for want of jurisdiction without a statute; M. etc. Ry. Co.
V. Swan, 111 tr. S. 387, 388, 28 L. Ed. 465, 466, 4 Sup. Ct. 514, holding costs
may be awarded against party wrongfully removing cause from State
court; Bradstreet Co. v. Higgins, 114 U. S. 264, 29 L. Ed. 176, 5 Sup. Ct.
880, giving costs to defendant, on whose motion writ of error is dis-
missed; Miller v. Clark, 62 Fed. 902, giving costs where defendant wrong-
fally removed cause from State court ; Kent v. Commissioners etc., 42 Kan.
538^ 22 Pac. 611, giving costs to appellee upon dismissal for want of juris-
dietion.
Distinguished in Abbey v. The Stevens, 1 Fed. Cas. 12, libel dismissed
for want of jurisdiction, but without costs.
V MisceUaneous. Cited in Merril v. Jones, 8 Port* 557| bnt not in point;
Montalet v. Murray, 4 Cr. 47, 2 L. Ed. 546.
V
NOTES
ONTHS
UNITED STATES REPORTS.
IV CRANCH.
i Cr. 2-29, 2 L. EcL 531, JENNINaS ▼. OABSOK.
District Courts of United States are courts of prise, witb all lowers of
Continental Courts of Appeal in prise cases.
Approved in dissenting opinion in Brown v. United^States, 8 Cr. 137,
3 L. £d. 514, majority denying jurisdiction where property left on mud by
tide; Taylor v. Carryl, 20 How. 600, 15 L. Ed. 1034, holding further that
seizure must be valid, and control of marshal actual; The Hiawatha,
Blatchf. Pr. 7 Fed. Cas. 6451, and holding jurisdiction not restricted to
seizures made within territorial dimensions or on high seas; The Actor,
Blatchf. Pr. 200, Fed. Cas. 36, holding question as to whether seizure
is one of prize is one for court in first instance; The Lizzie Weston
Blatchf. Pr. 265, Fed. Cas. 8425, as to procedure; The Wave, Blatchf. & H.
252, Fed. Cas. 17,297, holding act of Coi^ress unnecessary to establish
jurisdiction in civil causes ; Fay v. Montgomery, 1 Curt. 269, Fed, Cas. 4709,
holding that court will first ascertain whether case is one of prize; The
Emulous, 1 Gall. 573, Fed. Cas. 4479, as to captures made in port; The
Centurion, 1 Ware, 480, Fed. Cas. 2554, to point that one court may enforce
decree of another court; Jones v. The Richmond, 13 Fed. Cas. 1013, hold-
ing action against vessel for salvage, service does not dex>end upon ques-
tion as to whether vessel was arrested or brought within territorial juris-
diction of court; The Young America, 30 Fed. 791, and The Rio Grande,
23 Wall. 465, 23 L. £d. 159 , accidental or improper removal of vessel from
marshal's custody, or its delivery to party on security, does not destroy
jurisdiction; see, also. The Ella Warley, Blatchf. Pr. 207, Fed. Cas. 4371,
citing note to principal case on this point; The Anna, Blatchf. Pr. 339,
Fed. Cas. 402, discussing general subject.
Distinguished in Assign v. The G. B. Lamar, 2 Fed. Cas. 69, holding
judgment against master for wages recovered in common-law court cannet
be enforced in admiralty; Slocum v. Wheeler, 1 Conn. 447, where property
seized on shore held not to be subject to admiralty jurisdiction; Braith-
walte ▼. Jordan, 5 N. D. 216, 65 N. W. 707, holding action on bond given
for stay of proceedings not to be part of original prize action.
(265)
4Cr.29^6 NOTES ON U. S. REPORTS. 266
In all proceedings in rem property is presumed to be in custody of law
nnless contrary appears.
Cited in The Celestine, 1 Biss. 7, Fed. Cas. 2541, as to attachment in
State court, denying control to a creditor in United States Court ; also in
The Bolina, 1 Gall. 81, Fed. Cas. 1608, as to seizure for violation of revenue
laws; Burke v. Trevitt, 1 Mason, 100, Fed. Cas. 2163, as to libel for resti-
tution of goods seized under revenue laws; and in The Robert Fulton, 1
Paine, 626, Fed. Cas. 11,890, as to libel for materials furnished ; The Phebe,
1 Ware. 364, Fed. Cas. 11,066, holding attachment will issue where prop-
erty taken from custody of officer of court; United States v. The Pitt, '27
Fed. Cas. 542, holding that court may order delivery of property to claim-
ants upon filing stipulation bond; so also in the Frank Vanderkerchen, 87
Fed. 765; Tracey v. Corse, 58 N. Y. 151, as to property seized for viola-
tion of revenue laws.
Distinguished in Cushing v. Laird, 107^. 8. 78, 27 L. Ed. 304, 2 Sup. Gt.
202, arguendo.
The property does not follow appeal Into higber court, tad lower court
may order it sold notwltliBtiandlng appeal.
Reaffirmed in The William Bagaley, 5 Wall. 412, 18 L. Ed. 691.
Approved in Jones v. Springer, 226 U. S. 156, 57 L. Ed. 164, 33 Sup. Ct.
64, upholding order of territoriij court for sale of perishable property in
hands of its receiver, though bankruptcy proceedings pending; The Olinde
Rodrigues, 174 U. S. 535, 43 L. Ed. 1076, 19 Sup. Ct. 862, decreeing resti-
tution without damages; Riverdale Cotton Mills v. Alabama etc. Mfg. Co.,
Ill Fed. 433, holding Circuit Court has ancillary power to enjoin one of
parties to a suit from which an appeal is pending, from prosecuting suit
in State court involving same question as appeal; McKinnon-Toung Co. v.
Stockton, 53 Fla. 764, 44 South. 246, appljring rule where possession of re-
ceivers appointed by lower court was interfered with; Lamb v. Rowan,
81 Miss. 372, 33 South. 5, holding appeal from order dissolving partner-
ship does not deprive lower court of right to make orders for protection
of property.
Discussed in Young v. Kellar, 94 Mo. 594, 4 Am. St. Rep. 413, 7 S. W.
298, and principle applied to sale of perishable goods held under attach-
ment ; so, also, in Cilley v. Jenness, 2 N. H. 92.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. R. A. 863.
Miscellaneous. Cited in Erie etc. Transp. Co. v. Erie R. Co., 142 Fed.
12, decree in suit for damages by collision is conclusive ; dissenting opinion
in In re Moyer, 35 Colo. 178, 117 Am. St. Rep. 189, 12 L. R. A. (N. S.) 979,
85 Pac. 196, for 4 Cr. 75 ; Averill v. Smith, 17 Wall. 93, 21 L. Ed. 616, to
point that custodian of goods seized is responsible for loss or injury due
to neglect.
4 Or. 29--46, 2 Z^ Ed. 640, BHINELANDEB ▼. INSTTBANGE CO. OF
PEKKSYLVANIA.
Capture of neutral vessel by belligerent constitiites constmctlve total loM^
and entitles Insured to abandon at any time before restitation.
267 MONTALET v. MURRAY. 4 Cr. 46-47
Approved in Marshall v. Insurance Co., 4 Ci*. 206, 2 L. Ed. 597, under
similar facts; Olivera v. Insurance Co., 3 Wheat. 195, 4 L. Ed. 368, as to
vessel in hlockaded port; Thompson v. Insurance Co., 2 La. 240, 22 Am.
Dec. 136, as to unwarranted seizure on ground of illicit trade; Bohlen v.
Insurance Co., 4 Binn. 441, but holding that assured need not abandon
before vessel condemned; Peele v. Insurance Co., 3 Mason, 65, 67, Fed.
Cas. 10,905, and Thompson v. Insurance Co., 2 La. 240, 22 Am. Dec 136,
discussing general subject.
Liability of marine insurer for losses arising out of war. Note, 5
B. E. 0. 25, 44. ^
State of loss at time of offer to abandon fixes rights of iMotles, and sabse-
qaent release does not prevent recovery for total loss.
Cited in Bradlie v. Insurance Co., 12 Pet. 397, 9 L. Ed. 1132, where value
of vessel, at place where repairs must be made, held to govern right;
Orient Ins. Co. v. Adams, 123 U. S. 75, 31 L. Ed, 67, 8 Sup Ct. 72, holding,
where abandonment is in good faith, it is not affected by change in cir-
cumstances rendering repairs less expensive; Peele v. Insurance Co., 3
Mason, 37, Fed. Cas. 10,905, holding further act of underwriter, in taking
possession, constituted acceptance of abandonment; and, conversely, where
abandonment not made when right accrued, but vessel repaired, owner
ooiild not afterward abandon; Humphreys v. Insurance Co., 3 Mason, 436,
Fed. Cas. 6871 , Fuller v. Insurance Co., 31 Me. 327, holding repair of ves-
sel by purchaser after abandonment not to impair validity of abandon-
ment ; Dickey v. Insurance Co., 4 Cow. 243, holding repairing of vessel by
master destroys right, although unknown to owner; Radcliff v. Coster,
1 Hoff. Ch. 103, holding- offer to abandon must be based upon information
or faets soffieient to warrant abandonment.
Miscellaneous. Cited in Flanagan v. Insurance Co., 25 N. J. L. 521, to
point that, when policy is ox)en; insurer can only recover to extent of
damage, although loss be total.
4 Or. 46-47, 2 L. Ed. 645, MONTAIiET V. MUBBAT.
Facts necessary to give Jurisdiction most be averred.
Cited in Blair v. West Point Mfg. Co., 7 Neb. 154, following rule; dis-
senting opinion in McNutt v. Bland, 2 How. 22, 11 L. Ed. 164, majority
holding it sufficient if parties beneficially interested be competent; dis-
senting opinion in Marshall v. Railroad Co., 16 How. 341, 14 L. Ed. 964,
declaring corporation not a citizen and that citizenship of president and
directors should be averred; Dred Scott v. Sandford, 19 How. 402, 15
L Ed. 699, holding free negro, bom of slave parents, not a citizen;
Ciuldress v. McGehee, )iinor, 133, and principle applied to Justices' Courts
as being of limited jurisdiction; also in Commissioners' Court V. Thompson,
18 Ala. 697, as to commissioners' court of roads; and in Ingraham v.
Arnold, 1 J. J. Marsh. 407, to the "General Court"; Clarey v. MarshalFs
Heirs, 4 Dana (Ky.), 97, holding, further, that facts may appear in any
part of r^ord; Beebe v. Armstrong, 11 Mart. (La.) (O. S.) 441, as to
removal of causes ; Florence Co. v. Baker Co., 110 Mass. 81, on same point.
4 Cr. 46-47 NOTES ON U. S. REPORTS. 268
Federal courts liave not Jorisdiction 1)atwee]i aliens.
Approved in dissenting opinion in Lehigh Valley Coal Co. v. Yensavage,
218 Fed. 554, 134 C, C. A. 275, majority holding that objection that suit be-
tween alien and citizen was not brought in proper district does not survive
general appearance ; Picquet v. Swan, 5 Mason, 65, Fed. Cas. 11,134, holding
citizen of territory not citizen for purpose of suing in Federal courts ; Pooley
V. Luco, 72 Fed. 561, under facts similar to those in principal case ; Petroco-
kino V. Stuart, 19 Fed. Cas. 385, holding that fact that foreign corporation
has office within jurisdiction does not rendec it competent to sue another
alieii; Orosco v. Gagliardo, 22 Cal. 85, denying petition for removal to
Federal court.
Distinguished in Hinckley v. Byrne, Deady, 227, Fed. Cas. 6510, where
plaintiff was citizen of United States.
Where payee and maker of note are both aliens Indorsee cannot sue in
Federal court.
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; Portage City
Water Co. v. City of Portage, 102 Fed. 771, 773, holding nonresident as-
signee of note may sue in Federal court if original parties could sue
there; Morgan v. Gay, 19 Wall. 83, 22 L. Ed. 100, where payee of inland
bill of exchange not competent to sue; Parker v. Ormsby, 141 U. S. 85,
35 L. Ed. 656, 11 Sup. Ct. 913, dismissing suit where citizenship of payee
not averred; Shurford v. Cain, 1 Abb. (U. S.) 308, Fed. Cas. 12,823, where
original parties citizens of same State; Rogers v. Linn, 2 McLean, 127,
Fed. Cas. 12,015, sustaining demurrer where citizenship of assignor of
bond not alleged; Hampton v. Canal Co., 9 Sawy. 383, 19 Fed. 3, ruling
similarly as to mechanics' liens; New Orleans etc. Co. v. The Recorder,
27 La. Ann. 293, dismissing suit where original parties to mortgage not
competent to sue; Bullard v. Bell, 1 Mason, 251, Fed. Cas. 2121, and Don-
aldson V. Hazen, Hempst. 425, Fed. Cas. 3984, discussing the general
subject.
Distinguished in Lip8chitz,v. Napa Fruit Co., 223 Fed. 702, 139 C. C. A.
228, where suit on contract could have been maintained between original
parties, citizenship of intermediate assignees is immaterial; Farr v. Hobe-
Peters Land Co., 188 Fed. 16, 110 C. C. A. 160, jurisdiction sustained
where original holder of mortgage, as well as plaintiff and his immediate
assignor, might have brought suit; Coffee v. Planters' Bank, 13 How. 187,
14 L. Ed. 106, and Phillips v. Preston, 5 How. 291, 12 L. Ed. 157, where
suit was not upon note assigned but upon new agreement between maker
and assignee; Wilson v. Fisher, 1 Bald. 137, Fed. Cas. 17,803, holding that
where original parties competent, intermediate assignment to one not com-
petent is immaterial; Dundas v. Bowler, 3 McLean, 208, Fed. Cas. 4140,
denying application to case of mortgage; Towne v. Smith, 1 Wood. & M.
119, Fed. Cas. 14,115, where note payable to maker, and by him indorsed,
held payable to bearer.
If Judgment is refrersed for want of Jurisdiction, costs are not to be
allowed.
/
269 *NOTES ON U. S. REPORTS. 4 Cr. 48-62
Approved in Bice v. Boothsville Telephone Co!, 62 W. Va. 523, 125 Am. St.
R^. 986, 59 S. E. 502, Freer v. Davis, 52 W. Va. 16, 94 Am. St. Rep. 909, 59
L. R. A 656, 43 S. E. 170, and State v. Lambert, 52 W. Va. 251, 43 S. E. 178,
all following rule; Hornthall v. The Collector, 9 Wall. 567, 19 L. Ed. 562, and
Abbey v. The Robert L. Stevens, 1 Fed. Caa. 12, in admiralty proceedings,
dismissing libels for want of jurisdiction; Bumham v. Rangely, 2 Wood.
& M. 421, 422, Fed, Cas. 2177, ruling similarly in dismissing suit in equity;
Miller V. Clark, 52 Fed. 902, and Jim v. State, 3 Mo. 163, discussingj^ gen-
eral subject.
Limited in Mansfield etc. Ry. Co. v. Swan, 111 U. S. 388, 28 L. Ed. 466,
4 Sup. Ct. 514, awarding costs against party wrongfully removing cause
to Federal court; Bradstreet v. Higgins, 114 U. S. 264, 29 L. Ed* 176, 5
Sup. Ct. 880, holding party entitled to costs incident to motion to dismiss;
Bitz v. Meyer, 40 N. J. L. 256, 29 Am. Rep. 236, awarding costs where
trial of issue of fact necessary to determine jurisdiction.
Power of appellate court to* award costs on dismissal of appeal for
want of jurisdiction. Note, 13 Ann. Gas. 1048.
4 Or. 48-^9, 2 L. Ed. 546^ XTMITED STATES ▼. WILUNOS.
VesBel transferred, by parol, at sea, and resold to vendor, on arrival In
port does not lose her American character.
Rule applied in Calais Steamboat Co. v. Van Pelt, 2 Black, 285, 17 L. Ed.
289, and in Scudder v. Calais Steamboat Co., 1 Cliff. 380, Fed. Cas. 12,565 ;
also in Barnes v. Taylor, 31 Me. 334; see also Vinal v. Burrill, 16 IPick.
406, discussing subject generally.
Denied in Ohl v. Insurance Co., 4 Mason, 394, Fed. Cas. 10,473, holding
written contract necessary.
Transfer of vessel at sea without change of papers does not work for-
feiture of her national character.
Approved in D'Wolf v. Harris, 4 Mason, 533, Fed. Cas. 4221, also in
The Forrester, Newb. 94, Fed. Cas. 15,132, holding further as to distinction
between registration and enrollment.
Question of fact as to authority of managing owner of ship. Note,
24 E. B. 0. 243.
■
4 Cr. 60-62, 2 I*. Ed. 650, ONEALE V. LOK0.
Exceptions will lie to refusals of the court to give instructions when
regnested to do so.
Approved in Emerson v. Hogg, 2 Blatchf. 7, Fed. Cas. 4440, holding that
where charge does not comply with prayer, instructions are to be con-
sidered as refused.
Alteration of bond by principal, in substituting surety without consent
of other Boreties, renders bond invalid.
Cited in Anderson v. Bellenger, 87 Ala. 337, 13 Am. St. Rep. 48, 6 South.
82, holding contract of suretyship should be construed strictly in favor of
surety; Sans v. People, 8 111. 336, as to alteration of penalty in bail bond;
\
\
4 Cr. 62-73 NOTES ON U. S. REPORTS." 270
Covert V. Shirk, 58 Ind. 268, as to withdrawal by surety on appeal bond
before approval by court; People v. Brown, 2 Doug. (Mich.) 13, as to
alteration of penalty in sheriff's bond; Humphreys v. Gnillow, 13 N. H.
387, 38 Am. Dec. 500, principle applied to material alteration of promissory
note. The principle has also been approved in following cases discussing
the general subject: Taylor v. Johnson, 17 Ga. 533; Barrett v. Thomdyke,
1 Me. 76 ; Walla Walla County v. Ping, 1 Wash. Ter. 344.
Distinguished in Keilsohn v. Slaton, 144 Ga. 372, 87 S. E. 298, upholding
bond against surety who signed it in blank where it was signed by another
surety without his knowledge; Clark v. Macon Telegraph Pub. Co., 143
Ga. 281, 84 S. E. 578, surety held liable when he knew that bond with
name of original surety had been rejected by obligee; State v. Pepper, 31
Ind. 86, holding that where spaces are left for subsequent insertions, surety
is estopped from denying validity; Teager v. Musgrave, 28 W. Va. Ill, as
to immaterial alteration by third party.
Liability on bond conditionally delivered. Note, 25 Am. Rep. 709.
4 Cr. 62-73, 2 L. Ed. 650, SMITH Y. OABBINQTON.
Admission of copy of letter, not authenticated, where original unaccounted
for, is ground for reyersal.
Cited in Manhattan Malting Co. v. Sweteland, 14 Mont. 272, 36 Pae.
84, as to admission of parol evidence where statute requires written; Laty
v. Purdy, 2 Overt. 165, discussing general subject.
Misdirection in the charge to the Jury affords ground for bill of exceptions.
Approved in Stephenson v. Atlantic Terra Cotta Co., 230 Fed. 22, court
not bound to instruct as to defense in absence of proper prayer for in-
structions ; Texas & Pac. Ry. v. Volk, 151 U. S. 78, 38 L. Ed. 80, 14 Sup.
Ct. 240, as to omission of court to charge when requested; and, on same
X>oint, in Emerson v. Hogg, 2 Blatchf. 7, 13, Fed. Cas. 4440; Brackett v.
Norton, 4 Conn. 521, 10 Am. Dec. 181« as to charge containing construction
of unproved foreig^n laws; State v. Hascall, 6 N. H. 359, as to omission to
charge regarding competence of evidence; Firemen's Ins. Co. v. Walden,
12 Johns. 517, 7 Am. Dec. 344, holding erroneous a positive direction as to
materiality of facts; Fletcher v. Howard, 2 Aikens, 117, 16 Am. Dec. 689,
as to refusal to instruct regarding effect of possession by pledgor in case
of pledge; Gordon v. City of Richmond, 83 Va. 439, 2 S. E. 729, as to
obscure and misleading instructions.
Distinguished in Knapp v. McBride, 7 Ala. 30, holding mere neglect to
charge not ground for reversal; Dunlop v. Patterson, 5 Cow. 246, and
Washburn v. Tracy, 2 D. Chip. 136, 15 Am. Dec. 663, holding that omission
must be of instruction requested by counsel.
Court cannot be required to charge respecting matter of fact.
Approved in dissenting opinion in Texas etc. P. Ry. Co. v. Patton, 61
Fed. 272, majority reversing where record shows lack of negligence and
defendant failed to ask peremptory instruction; United States v. Bum-
ham, 1 Mason, 69, Fed. Cas. 14,690, where request contained recital o£
271 NOTES ON U. 8. REPORTS. 4 Cr. 73-137
evidence; so, also, in Stearns v. Barrett, 1 Mason, 173, Fed. Gas. 13,337;
Proctor V. Hart, 5 Fla. 467, holding court may refuse to charge as to ab-
stract proposition not based on color of evidence. Followed in Brooke v.
Young, 3 Rand. 112; in Peasley v. Boatwright, 2 Leigh (Va.), 197, under
facts similar to principal case. Rule discussed and approved in Kitty v.
Fitzhugh, 4 Rand. 604.
Proper subjects of instructions and when judges may comment upon
evidence. Note, 72 Am. Dec. 542.
Incompetency of witness as to one point Is not ground for his rejection
generally.
Cit^d in Beers v. Broome, 4 Conn. 256, as to witness interested in part
of transaction; McMicken v. Fair, 4 Mart. (La.) (N. 8.) 173, as to interest
in certain items of account; Knowles v. Dow, 22 N. H. 410, 55 Am. Dec.
171, discussing subject of evidence of custom.
When realty considered firm property. Note, 27 L. B. A. 481.
Miscellaneous. Cited in Sibly v. Hood, 3 Mo. 298, as to functions of
jury; bIso in Denny v. Palmer, 5*Ired. 624, but not in point.
i Cr. 73-7i, 2 If. Ed. 564, PENDLETON Y. WAMBEB8IB.
Assignee of copartner may maintain bill for an account against other
members of partnership formed to deal in lands.
Cited in Hirbour v. Reeding, 3 Mont. 25, holding, further, as to effect
of statute of frauds ; so, also, in Chester v. Dickerson, 54 N. Y. 7, 13 Am.
Bep. 552; Tiller v. Cook, 77 Ga. 481, as to partnership formed for purpose
of repairing and operating mill.
i cr. 75-137, 2 L. Ed. 554, EX PASTE BOUJIiAN Y. SWABTWOTJT.
Courts are created by written law, and whose Jurisdiction is defined by
written law, cannot txanscend that Jurisdiction.
Approved in Kentucky v. Powers, 201 U. S. 24, 50 L. Ed. 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 ; In re Garvey, 7 Conn. 248, denying author-
ity of judge to issue habeas corpus, in chambers, where such authority
not given by statute; People v. Taylor, 1 Scam. 202, State Supreme Court
refusing writ of habeas corpus in exercise of original jurisdiction; Qaker
v. Chisholm, 3 Tex. 158, disclaiming jurisdiction to entertain apx>eal from
decision of lower court in contested Section case; Solon v. State, 5 Tex.
App. 305, denying jurisdiction of Justice's Court over misdemeanor not
specified by statute.
Federal courts have no common-law Jurisdiction, and can take cognizance
of offenses only as anthoxlzed by Oongress.
Cited in dissenting opinion in Tennessee ▼. Davis, 100 U. S. 282, 25 L. tSd.
657, majority holding trial for murder, committed by revenue officer in
4 Cr. 75-137 NOTES ON U. S. REPORTS. 272
diseharge of duty, removable to. Federal court; dissenting opinion in Tn re
Neagle, 135 U. S. 78, 96, 84 L. Ed. 76, 83, 10 Sup. Ct. 673, 679, majority
sustaining decree of Circuit Court discharging, in habeas corpus proceed-
ing, Federal officer held for murder by State court; In re Barry, 136 U. S.
601, 607, 608, 609, 610, 612, 613, 84 L. Ed. 505, 507, 508, 509, 42 Fed.
116, 120, 121, 122, 123, 124, 126, 127, Fed. Cas. 1059, denying jurisdiction
of Circuit Court to issue writ, at instance of alien parent, to determine
right of other parent to custody of child; United States v. Wilson, 3
Blatchf. 438, Fed. Cas. 16,731, where jurisdiction given to Circuit Court,
over torts committed on *'high seas," held not to extend to those com-
mitted in port ; Ex parte Everts, 1 Bond, 200, 202, Fed. Cas. 4581, refusing
writ to review ptoeeedings of State court awarding custody of child, al-
though petitioner was citizen of another State; so, also, in Bennett v.
Bennett, Deady, 314, Fed. Cas. 1318; United States v. New Bedford Bridge,
1 Wood. & M. 408, 436, 440, 448, Fed. Cas. 15,867, quashing indictment
against corporation for maintaining obstruction in navigable river, in ab-
sence of act of Congress making such act punishable; United States v.
Plumer, 3 Cliff. 55, Fed. Cas. 16,056, denying jurisdiction of Circuit Court
to review, on writ of error, judgment of District Court in criminal cause ;
In re Boles, 48 Fed. 76, 4 U. S. App. 1, den3ring jurisdiction of Federal
Court of Appeals to issue writ of habeas corpus to be served outside of
circuit; King v. McLean Asylum, 64 Fed. 342, 347, 348, 21 U. S. App. 481,
refusing writ to review commitment of person in insane asylum, by order
of State court; Ludington v. The Nucleus, 15 Fed. Cas. 1095, holding con-
tracts for materials furnished at home port in building vessel not to be
within act extending jurisdiction of District Courts to great lakes; dissent-
ing opinion in Slocum v. Wheeler, 1 Conn. 453, arguing that in order to
render judgment of District Court, sitting as Admiralty Court, conclusive,
jurisdiction must appear on record ; dissenting opinion, Chumasero v. Potts,
2 Mont. 290, arguing that territorial court cannot issue writ of mandamus
without authority of Congress. The principle has also been applied in
In re Garvey, 7 Colo. 507, 4 Pac. 760, denying jurisdiction of judge to
issue habeas corpus at chambers where statute gives such jurisdiction to
court generally.
Distinguished in Ex parte Des Rochers, McAll. 72, 73, Fed. Cas. 3824,
issuing writ, at instance of party to suit, where justice of State Supreme
Court, whose presence was necessary to decide cause, was deprived of
liberty by individuals.
Extent of adoption of common law. Note, Ann. Oas. 1918E, 1285.
The nature of provision In statute, as well as Its context, may be resorted
to to determine Its meaning.
Cited in Brady v. Bai-tlett, 56'Cal. 364, construing statute directing mode
of levying assessments for public improvements.
State courts are not Inferior courts wltliin meaning of Federal OonstitntlOB.
Cited in Davison v. Champlin, 7 Conn. 248, holding that Congress cannot
confer on State court jurisdiction of offense arising under postal laws.
273 EX PARTE BOLLMAN v. SWARTWOUT. 4 Cr. 75-137
Habeas cbipus will not issae from Federal to State court except in cases
arising nnder laws of United States.
Cited in Holmes v. Jennison, 14 Pet. 620, 621, 625, 626, 10 L. Ed. 622,
623, 625, 626, refusing writ where prisoner held for extradition under war-
rant issued by Governor of State; Ex parte Hung Hang, 108 U. S. 553,
27 L. Ed. 812, 2 Sup. Ct. 864, where petitioner held for trial for violation
of city ordinance alleged to be repugnant to Federal Constitution; In re
Barrj-, 136 U. S. 625, 34 L. Ed. 513, 42 Fed. 133, Fed. Cas. 1059, refusing
writ to review decision of State court awarding custody of minor child;
so also in Ex parte Everts, 1 Bond, 200, 202, Fed. Cas. 4581, Bennett v.
Bennett, Deady, 314, Fed. Cas. 1318, and King v. McLean Asylum, 64 Fed.
342, 347, 348, 21 U. S. App. 481.
8ui»reme Court has Jurisdiction to issue habeas corpus to examine com-
mitment by inferior Federal court.
Approved in Ex parte Watkins, 7 Pet. 572, 573, 8 L. Ed. 788, where
prisoner committed under ca. sa. to collect fine ; dissenting opinion in In re
Kaine, 14 How. 146, 14 L. Ed. 363, majority refusing writ where proceed-
ings of commissioner committing prisoner had been held valid in Circuit
Court upon a habeas corpus ; Ex parte Milligan, 4 Wall. 110, 18 L. Ed. 292,
holding that suspension of privilege of writ does not suspend writ itself,
and it will issue to review decision of lower court committing prisoner
;nder declaration suspending writ; Ex parte McCardle, 6 Wall. 324, 18
Tj. Ed. 817, and Ex parte Yerger, 8 Wall. 97, 98, 19 L. Ed. 836, holding
that Supreme Court may issue writ accompanied by writ of certiorari
to revise decision of lower court, in habeas corpus proceedings, remanding
prisoner; Ex parte Lange, 18 Wall. 166, 21 L. Ed. 875, extending principle
and discharging prisoner held under 6nal judgment of lower court, 'ren-
dered without authority; Ex parte Perkins, 29 Fed. 908, appl3dng principle
in Circuit Court issuing habeas corpus where prisoner committed for con-
tempt by court lacking jurisdiction in first instance; State v. Sullivan, 50
Fed. 598, holding that grant by Congress of general power to issue writ
included writ of habeas corpus cum causa; In re McDonald, 16 Fed. Cas.
20, 23, collecting and discussing authorities; Ex parte Harbour, 39 Ark.
129, holding that Supreme Court of State may review, on certiorari, deci-
sion of inferior court refusing bail; State v. Neel, 48 Ark. 288, 3 S. W.
633, issuing writ to determine as between lessees, who has right to services
of convict; State v. Mace, 5 Md. 340, issuing writ of habeas corpus ad
testificandum; State v. Grant, 10 Minn. 46, holding constitutional, act of
legislature conferring upon Supreme Court power to issue writ; dissenting
opinion in Ex parte Marmaduke, 91 Mo. 251, 4 S. W. 99, as instance where
United States Supreme Court issued writ; State v. Barber, 4 Wyo. 63, 32
Pae. 16, holding that where State Supreme Court is authorized to issue
writ of mandamus generally, it may issue it to compel election board to
canvass returns; cited generally in Ex parte Davis, 7 Fed. Cas. 47; In re
Kaine, 14 Fed. Cas. 87, 88, discussing subject of habeas corpus; People v.
Turner, 1 CaL 147, 62 Am. Dec. 298, discussing subject of ex parte juris-
dietion of State Supreme Court; dissenting opinion in Hyatt v. Allen, 54
1—18
4 Cr. 75-137 NOTES ON U. S. REPORTS. 274
Cal. 364, 368, as instance where Supreme Court issued writ in exercise of
appellate jurisdiction.
Distinguished in Ex parte Kearney, 7 Wheat. 42, 5 L. Ed. 892, holding
ccmimitment for contempt to be in the nature of a conviction, and hence
habeas coi-pus could not issue; Ex parte Watkins, 3 Pet. 208, 7 L. Ed. 655,
where prisoner held under conviction in criminal case by court of compe-
tent jurisdiction; In re Metzger, 5 How. 189, 190, 191, 12 L. Ed. 110, deny-
ing jurisdiction of court to issue writ, as incident to appellate power,
where commitment ordered by district judge at chambers; In re Kaine, 14
How. 119, 130, 131, 133, 14 L. Ed. 851, 856, 857, denying jurisdiction to
issue writ where legality of proceedings of commissioner ordering extradi-
tion of prisoner had been inquired into and sustained by Circuit Court;
dissenting opinion in Ex parte Wells, 18 How. 317, 15 L. Ed. 426, majority
entertaining writ to inquire as to legality of imprisonment under sentence
of Circuit Court; Ex parte Siebold, 100 U. S. 374, 375, 25 L. Ed. 718,
denying authority to issue writ where commitment was under decree of
court of competent jurisdiction; In re Kaine, 14 Fed. Cas. 83 (see 14 How.
119, 130, 131, 133, 14 L. Ed. 851, 856, 857). See also dissenting opinion of
Johnson, J., in Ex parte Watkins, 7 Pet. 581, 8 L. Ed. 791, where rule
criticised and denied.
Habeas corpus ad testificandum. Note, Aim. Oas. 1915D, 1028, 1029,
1080.
Superintending control and supervisory jurisdiction over inferior or
subordinate tribunaL Note, 51 L. R. A. 87, 104.
Beclsion that individual shall be imprisoned must always precede appli-
cation for habeas corpus.
Approved iaTWhitnew v. Dick, 202 U. S. 136, 50 L. Ed, 964, 26 Sup. Ct.
584, Circuit Courts of Appeal have no power to issue original and independ-
ent writs of habeas corpus; United States Fong On v. McCarthy, 228 Fed.
399, refusing to review evidence upon which Chinese was ordered deported
since appeal would lie fro^n decision of commission; 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; Ware v. Sanders, 146 Iowa, 245, 124 N. W.
1085, judge of Supreme Court may issue writ anywhere in State ; dissenting
opinion in Miskimmins v. Shaver, 8 Wyo. 432, 58 Pac. 423, majority hold-
ing court may, on habeas corpus, examine acts alleged to be contemptuous ;
Ex parte Tom Tong, 108 U. S. 560, 27 L. Ed. 828, 2 Sup. Ct. 873, refusing
to entertain certificate of division from Circuit Court as to whether writ
should issue to State court, there having been no commitment by a Federal
court; Tarborough v. State, 2 I'ex. 521, holding that appeal does not lie
to State Supreme Court from inferior court remanding prisoner on hiibeas
corpus; People v. Spiei-s, 4 Utah, 387, 10 Pac. 610, discussing powers of
territorial courts to issue writs ancillary to appellate jurisdiction.
If BDf&cient ground for prisoner's detentloa tfiown, he is not to be dis-
charged for mere defects in commitment.
/
276 EX PARTE BOLLMAN v. SWARTWOUT. 4 Cr. 7&-137
Approvtd in Palmer Colladay, 18 App. D. C. 430, reaffirming rule ; Yordi
T. Kolte, 216' U. S. 233, 54 l!^ Ed; 172, 30 Sup. Ct. 90, error in making
complaint in extradition on information and belief iil cured "by producing
record at hearing; State ex rel. Turner v. Huegin, 110 Wis. 235, 236, 85
N. W. 1057, holding commitment stating offense charged with reasonable
certainty is sufficient; dissenting opinion in Low Kwai v. Backus, 229 Fed.
485, majority holding that Secretary of Commerce and Labor cannot dele-
gate to Commissioner of Immigration power to decide whether alien should
be deported; Nishimura Ekiu v. United States, 142 U. S. 662, 85 L. Ed.
1160, 12 Sup. Ct. 339, refusing writ to review decision of inspector denying
right of immigrant to land, although such decision irregular in form; In re
Van Campen, 2 Ben. 421, 422, Fed. Cas. 16,835, holding, as to indictment
imder national bank act, for embezzlement, that probable cause to believe
in guilt is sufficient to warrant commitment ; In re Veremaitre, 28 Fed. Cas.
1149, remanding prisoner for extradition where warrant of commissioner
prima facie sufficient; Peltier v. Pennington, 14 N. J. L. 318, remanding
prisoner, where original warrant irregularly issued; Ex parte Mooney, 26
W. Va. 39, 58 Am. Rep. 61, holding that where person is imprisoned under
sentence, part of which is invalid, he will not be discharged until legal
portion of sentence has been served.
A conspiracy to sabvert government by force is not treason; war must
actaally be levied.
Approved in dissenting opinion in Ex parte Jones, 71 W. Va. 618, Ann.
Cas. 1914C, 81, 45 L. B. A. (N. S.) 1080, 77 S. E. 1051, majority holding
that facts showed insiurection existed in certain portion of State; Unitdd
States V. Hanway, 2 Wall. Jr. 202, Fed. Cas. 15,299, defining treason in
charge to jury ; affirmed in United States v. Burr, 25 Fed. Cas. 165, where
same facts involved as in principal case;, State v. McDonald, 4 Port. 463,
applying principle in holding that to make a free person guilty of encoura-
ging a rebellion of slaves there must be proof of actual rebellion ; dissenting
opinion in Luther v. Borden, 7 How. 81, 12 L. Ed. 615, and United States
V. 0 'Sullivan, 27 Fed. Cas. 378, arguendo.
If body of men be actually assembled to snbvert government by f orce»
all wlio perform past, however minute and however remote from scene of
action, ai?^ traltonk
Cited in United States v. Athens Armory, 2 Abb. (U. S.) 146, Fed. Cas.
14,473 (see 35 Ga. 360), holding property used for purpose of manufactur-
ing arms for Confederate government liable to confiscation; United States
V. Greathouse, 2 Abb. 373, 4 Sawy. 467, Fed. Cas. 15,254, defining treason
in cbaj^e to jury on indictment for fittitig out vessel to aid rebel govern-
ment; Lawson v. Miller, 44 Ala. 625, 4 Am. Rep. 149, Hill v. Edwin, 44
Ala. 667, 668, and Latham v. Clark, 25 Ark. 579, holding Confederate gov-
ernment to have been treasonable in origin, hence notes issued Jby it could
not constitute valid consideration for contract; State v. Larkin, 49 N. H.
43, holding remote acts done in aid of conspiracy renders person con-
spirator; Dmecker v. Salomon, 21 Wis. 626, 94 Am. Dec. 575, holding per-
sons remotely connected with concerted attempt to resist execution of
4 Cr. 75-137 NOTES ON U. S. REPORTS. 276
draft, guilty of levying war; Sparf v. United States, 156. U. S. 66, 39
L. Ed. 349, 15 Sup. Ct. 279, discussing subject of evidence of accomplices ;
Noble V. Cuflom, 44 Ala. 562, maintaining invalidity of judgments ren-
dered by courts in insurrectionary States; Anderson v. Baker, 23 Md. 625,
enumerating crimes defined in State Constitution.
Distinguished in Young v. United States, 97 U. S. 65, 24 L. Ed. 999, as
to nonresident alien; Charge to Federal Grand Jury by Sprague, J., 1
Sprague, 594, Fed. Cas. 18,263, holding action of mob in interrupting pro-
ceedings of court and rescuing fugitive slave not to constitute ''levying
war. ' '
Affidavit made before one magistrate may Justify commitment by another.
Approved in United States v. Yarborough, 122 Fed. 296, holding applica-
tion for warrant of one for removal to another district for trial should
be made to nearest commissioner; In re Kaine, 14 Fed. Cas. 90, holding
that distnct judge awarding writ of habeas corpus may make it returnable
before Circuit Court; In re Metzger, 17 Fed. Cas. 235, in extradition pro-
ceedings, committing prisoner on affidavits made in foreign court, and duly
authenticated; In re Alexander, 1 Low. 531, Fed. Cas. 162, where person
was arrested in one judicial district for crime committed against Federal
laws in another district, and certified copy of indictment found in latter
held admissible in evidence.
Place of trial of Federal offenses committed without Jorisdlction of any
State or district.
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 offense committed had
touched at Hawaii, where warrant issued though unexecuted; Jones v.
United States, 137 U. S. 212, 84 L. Ed. 695, 11 Sup. Ct. 83, extending
principle to crime of murder committed upon Guano Islands, previously
declared to be United States territory; United States v. Bird, 1 Sprague,
300, Fed. Cas. 14,597, sustaining indictment for violation of anti-slavery
laws upon high seas; United States v. Baum, 74 Fed. 46, as to adultery
committed in territory, holding offense punishable in territorial court.
In this case writ of habeas corpus waa accompanied by writ of certiorari.
Approved in Hyde v. Shine, 199 U. S. 85, 50 L. Ed. 98, 25 Sup. Ct. 760,
refusal of Circuit Court to grant certiorari as ancillary to habeas corpus,
being discretionary, is not assignable as error; In re Martin, 5 Blatchf. 306,
308, Fed. Cas. 9151, reviewing commitment by commissioner to await action
of Federal grand jury; In re SncU, 31 Minn. Ill, 16 N. W. 692, issuing
writ to examine record of court, prisoner to answer on criminal charge.
Courts liave power to protect themselves.
Approved in In re Maury, 205 Fed. 629, 123 C. C. A. 642, punishing at-
torney for contempt in using contemptuous language toward jury.
Before accused is put upon his trial, all proceedings are ex parte.
Approved in Logan v. State, 131 Tenn. 78, 173 S. W. 444, accused need
not he present when special venire summoned; Kemper v. State, 63 Tex.
277 EX PARTE BOLLMAN v. SWARTWOUT. 4 Cr. 75-137
Cr. 40, 138 S. W. 1045, preliminary proceeding before indictment is not
"criminal prosecution" within Bill of Rights.
It Is for legidatiire to say when writ of habeas corims shall be suspended.
Approved in Ex parte McDonald, 49 Mont. 467, L. B. A. 1915B, 988,
143 Pac. 951, Gk)vemor cannot suspend writ of habeas corpus by declaring
military law; dissenting opinion in In re Moyer, 35 Colo. 178, 194, 117
Am. St. Rep. 189, 12 L. R. A. (N. S.) 979, 85 Pac. 196, 202, majority hold-
ing one arrested by military for aiding insurrection not entitled to release
on habeas corpus pending insurrection; dissenting opinion in Ex parte
Muncy, 72 Tex. Cr. 573, 675, 163 S. W. 51, majority upholding statute
which compelled witness to testify concerning offense upon being guaran-
teed immunity from punishment. The following cases cite the principal
case as authority for holding that privilege of writ of habeas corpus can be
suspended only by authority of Congress : Ex parte Field, 5 Blatchf . 82 Fed.
Cas. 4761, Ex parte Menyman, Taney, 267, Fed. Cas. 9487, Ex parte Bene-
dict, 3 Fed. Cas. 168, 171.
Contempt procedure iu Federal court. Note, Ann. Oas. 1915D, 1060.
Constitutional right of an accused to be confronted by the witnesses,
and what is an invasion of that right. Note, 129 Am. St. Rep. 27.
Martial law. Note, Ann. Oas. 19140, SO.
Suspension of writ of habeas corpus. Note, 45 L. R. A. 833.
Miscellaneous. Cited in Hastings v. Murchie, 219 Fed. 86, 134 C. C. A.
1, to point that person arrested for crime triable in another district should
be allowed to present evidence showing want of probable cause; Hoimes
V. Jennison, 14 Pet. 628, 10 L. Ed. 627, as instance of practice on award-
ing writ; difliSfenting opinion in Luther v. Borden, 7 How. 87, 12 L. Ed.
618, to x)oinMhat writ of habeas corpus is in force during insurrection
as well as peace^ unless suspended by competent authority; Ex parte
Terry, 128 U. S. 303, 82 L. Ed. 408, 9 Sup. Ct. 79 (see also 13 Sawy.
462), and United States v. New Bedford Bridge, 1 Wood. & M. 440,
Fed. Cas. 15,867, to point that Federal courts have power to punish
for contempt (not directly decided in principal case), Johnson v. Tomp-
kins, 1 Bald. 594, Fed. Cas. 7416, citing argument of counsel to effect
that accused in criminal proceedings has right to be confronted with
witnesses against him; Dunlop v. Monroe, 1 Cr. C. C. 541, Fed. Cas.
4167, to point that parol evidence is admissible to show authority of per-
son taking deposition; In re Dana, 68 Fed. 894, as to practice in taking
testimony in ex parte proceedings ; so also in In re Bates, 2 Fed. Cas\ 1018,
Hussey v. State, 87 Ala. 126, 6 South. 421, to point that where affidavits
are presented in support of change of venue counter-affidavits may be
received; Johnson v. Duncan, 3 Mart. (La.) (0. S.) 533, 6 Am. Dec. 676,
as to suspension of writ of habeas corpus ; Swan v. Gray, 44 Miss. 392, to
point that acts of de facto officer will be deemed valid as regards third
persons ; Oirard v. Taggart, 5 Serg. ft R. 35, as holding that courts are not
precluded frongi examining into the correctness of their previous decisions;
\
4 Cr. 137-164 NOTES ON U. S. REPORTS. 27S
State V. Frew, 24 W. Va. 437, 49 Am. Bep. 258» and State v. Tiigwell, 19
Wash. 252, 52 Pac. 1061, to point that courts have power to punish for
contempt. Erroneously cited in Little v. Chauvin, 1 Mo. 632.
4 Cr. 137-141, 2 L. Ed. 574, SKXLIiEBN'S EKBS. v. MAT'S EXBS.
Injiiuction against Judgment based on obligation to convey lands, iiart of
wliich lost througb obligor's neglect to pay taxes.
Approved in Gund v. Ballard, 73 Neb. 656, 103 N. W. 312, permitting^
stockholders to impeach collusive judgment of corporation against its presi-
dent; Tufts V. Tufts, 3 Wood. & M. 475, 503, Fed. Cas. 14,233, as to con-
tract for sale of land where vendee has failed to pay any part of purchase
price; Smith v. Robertson, 23 Ala. 318, as to contract for sale of land
where defect in vendor's title.
Distinguished in Buford v. Bisrd, 8 Mo. 243, where action not in equity.
4 Cr, 141-164, 2 L. Ed. 576, FRENCH v. BANK OF COLUMBIA.
Accommodation indorser is entitled to bave demand. on maker and notice.
Cited in dissenting opinion in Magruder v. McDonald, 3 Cr. C. C. 310,
Fed. Cas. 8965, majority holding first accommodation indorser may recover
half of what he has paid from his indorsee; RamduloUday v. Darieux, 4
Wash. 63, Fed. Cas. 11,543, as to indorser of bill of exchange, where drawer
not entitled to notice; Phipps v. Harding, 70 Fed. 478, 34 U. S. App. 148,
holding insolvency no excuse for failure of notice; so also in Adams v.
Torbert, 6 Ala. 868 ; Holland v. Turner, 10 Conn. 315, following rule ; Hill
V. Martin, 12 Mart. (La.) (0. S.) 182, 184, 13 Am. Dec. 875^ as to note
indorsed after maturity; Hilton v. Smith, 5 Gray, 401, Ferris v. Saxton,
4 N. J. L. 21, and in Bogy v. Keil, 1 Mo. 743^ under facts similar to those
in principal case; applied in Brown v. Mott, 7 Johns. 362, holding further
as to liability of indorser; Agan v. McManus, 11 Johns. 182, holding in-
solvency of maker no excuse unless known to indorser; Smedes v. The
Bank, 20 Johns. 382, as to note indorsed and delivered to bank for collec-
tion; Denny v. Palmer, 5 Ired. 623, 624, where belief on part of indorser
that note would not be paid, held not to excuse notice; Richter v. Selin,
8 Serg. & R. 438; applied in McNeill v. Elara, Peck (Tenn.), 269, holding
further as to right to sue prior indorsers; Farmers' Bank v. Vanmeter, 4
Randolph, 559, holding further no right of contribution as between several
accommodation indorsers in absence of agreement; Catlin v. Jones, 1 Finn.
132, holding that declaration must aver presentment and dishonor; Cor-
with v. Morrison, 1 Pinn. 490, as to note indorsed after maturity; Yeaton
v. Bank, 5 Cr. 50, 3 L. Ed. 34, Woodworth v. Bank, 19 Johns. 407, 10 Am.
Dec. 252, and Strothart v. Lewis, 1 Overt. 258, discussing general subject
of liability of accommodation indorsers.
Distinguished in Morris v. Bank, 93 Ala. 513, 9 South. 606, holding that
where note made for accommodation of payee, he is not entitled to notice
of presentment to maker; Blenderman v. Price, 50 N. J. L. 300, 12 Atl.
777, and in Mechanics' Bank v. Griswold, 7 Wend. 168, where note wms
discounted for accommodation of indorser*
279 NOTES ON U. S. REPORTS. 4 Cr. 165-168
Drawer of Mil of exchange entitled to strict notice, If, at time of drawing
UU, he hae right to expect It will he honored.
Approved in Dickins v. Real, 10 Pet. 577, 578, 9 L. Ed. 540, holdings
drawer entitled where he had funds in hands of drawee.; Hopkirk v. Page,
2 Rrock. 27, Fed. Cas. 6697, holding notification by drawee to drawer that
bills will not be honored, excuses indorsee^ separate opinion of Godard, J.,
in Shepard v. Hawley, 1 Conn. 372, 6 Am. Dec. 247, applying principle in
holding each joint indorser entitled to notice; Pitts v. Jones, 9 Fla. 524,
holding that drawer's right to sue drawee fixes right to notice; Bloodgood '
V. Hawthorn, 9 La. 127, holding that where from nature of business rela-
tions, drawer conld reasonably expect draft to be honored, mere lack of
funds in drawee's hands does not excuse notice; Eichelberger v. Finley,
7 Har. & J. 387, 16 Am. Dec. 316, holding where check is drawn without
funds in bank, drawer is not entitled to notice although drawee has not
been diligent in presenting; Grosvenor v. Stone, 8 Pick. 83, where draft
drawn pursuant to agreement to honor; Dunbar v. Tyler, 44 Miss. 13,
holding that open and current account between parties creates implied
authority to draw; so also in Robinson v. Ames, 20 Johns. 150, 11 Am.
Dec. 260 ; Durrum v. Hendrick, 4 Tex. 500, where bill drawn in good faith
but without funds in drawee's hands; see also Neederer v. Barber, 17 Fed.
Cas. 1274, and Hamlin v. Simpson, 105 Iowa, 128, 74 N. W. 907, discussing
general subject of notice.
Distinguished in Bowen v. Bank, 87 Fed. 436, undter State statute holding
notice excused by absence of prejudice to dafawer; Taylor v. Bank, 7 T. B.
Mon. 582, holding excuse of notice to drawer not to apply to indorser.
Limited in Foard v. Womack, 2 Ala. 371, and in McRae v. Rhodes, 22
Ark. 319, holding notice excused where no funds in drawer's hands.
4 Or. 165-166, 2 It. Ed. 688, HICKS ▼. BOaEBS.
In Vennont deylsees of a tract of land "to he equally divided between
them," may maintain ejectment Jointly.
Cited in Matthews v. Hall, 1 Vt. 331, to- support the rule that a note
payable to A or bearer may be sued upon by a bearer without indorsement ;
Lytle V. State, 17 Ark. 659, and McFarland v. Stone, 17 Vt. 175, 44 Am.
]>ec. 328, applying rule where part of heirs were barred by limitations;
Campbell v. Wallace, 12 N. H. 370, 37 Am. Dec. 224, arguendo.
i Or. 167-168, 2 L. Ed. 584, UNITED STATES Y. OAKTBII..
A pena| statute. In Itself repugnant, cannot support an indictment.
Cited in Hall v. Bank, 6 Whart. 597, construing statute providing x)enalty
for failure of bank to redeem notes; Campbell's Case, 2 Bland Ch. 231,
20 Am. Dec. 872, arguendo.
Criticised in United States v. Howell, 11 Wall. 437, 20 L. Ed. 197, up-
holding act of 1862, § 6, authorizing issuance of United States notes.
Distinguished in Mackey v. State, 3 Ohio St. 364, State v. Randall, 2
Aikens, 102, 105, and -State v. Twitty, 2 Hawks, 453, under facts, in con-
struing statutes providing penalty for counterfeiting bank notes.
4 Cr. 169-180 NOTES ON U. S. REPORTS. 280
4 Cr. 169-171, 2 K Bd. 684, STHBESHLBY y. XTNITED STATES.
Collector has no authority to receive dtttiee after lUs removal, thongh they
became payable while he was in olllce.
Rule applied in Cutis v. United States, 1 Gall. 74, Fed. Cas. 3622.
Miscellaneous. Cited also in Calhoun v. Levy, 33 La. Ann. 1299, but not
in point.
4 Cr. 172-177, 2 I.. Ed. 585, MABSHAIJ. v. CUBBIE.
If monuments mentioned in deed are uncertain, courses and distances may
identify or dispense with them.
Approved in Watkins v. King, 118 Fed. 537, upon question of conflicting
calls; Higueras v. United States, 5 Wall. 836, 18 L. Ed. 471, to point that
monuments, when certain, control courses and distances; McNeel v. Herold,
11 Gratt. 315, as to description in entry u}>on public lands.
General rules for the location of boundaries. Note, 129 Am. St. Bep.
1004.
4 Cr. 177-179, 2 L. Ed. 585, VIEBS v. MONTGOMEBY.
In absence of ftaud, equity wlU not interfere between donee of land by
deed and devisee under wi^ of the donor.
Cited in Boyd v. Anderson, 1 Overt. 443, as to conveyance of land con-
taining invalid warranty.
4. Cr. 179-180, 2 L. Ed. 587, DlOaS V. WOLCOTT.
A United States court cannot enjoin proceedings in State court.
Approved in Bertha Zinc etc. Mineral Co. v. Cariro, 61 Fed. 137, fol-
lowing rule; Hull v. Burr, 234 U. S. 723, 58 L. Ed. 1563, 34 Sup. Ct. 892,
denying to defendants injunction against plaintiffs in State court, who
were trustees in bankruptcy, on ground that bankruptcy proceedings were
invalid; Rochester German Ins. Co. v. Schmidt, 175 Fed. 728, 99 C. C. A.
296, where four actions were brought against insurance companies for
same loss and two were removed to Federal court, injunction against re-
maining two was refused; Patton v. Marshall, 173 Fed. 357, 26 L. B. A.
(N. S.) 127, 97 C, C. A. 610, refusing to enjoin suit in State court in order
that plaintiffs therein might be brought in as defendants to Federal equity
suit ; Security Trust Co. v. Union Trust Co., 134 Fed. 302, refusing to enjoin
sale under State decree, where court of competent jurisdiction had ap-
pointed receiver in proceedings to foreclose railroad mortgage and directed
sale; Aultman etc. Taylor Co. v. Brumfield, 102 Fed. 11, denying Federal
injunction against treasurer's action for recovery of tax assessment;
Leathe v. Thomas, 97 Fed. 139, holding Federal court cannot enjoin sheriff
from collecting execution issued by State court; Coeur D'Alene Ry. etc.
Nav. Co. V. Spalding, 93 Fed. 282, holding Circuit Court cannot enjoin
State court on ground of removal of cause when removal is not complete;
Keane v. Chamberlain, 14 App. D. C. 102, quaere whether section 720, Re-
281 DIGGS V. WOLCOTT. 4 Cr. 179-180
vised Statutes, applies to District of Columbia; Bo wen v. Ledbetter, 32
Okl. 518, 122 Pae. 133^ refusing to enjoin parties to contest before Com-
mifisioner to Five Civilized Tribes; Henderson v. Henrie, 61 W. Va. 190,
11 Ann. Oi^ 741, 56 S. E. 371, refusing to enjoin execution of deed in
bankruptcy proceedings; Peck v. Jenness, 7 How. 625, 12 L. Ed. 846, hold-
ing that attachment on mesne process of State court could not be defeated
by subsequent decree of bankruptcy rendered by District Court; Riggs v.
Johnson County, 6 Wall. 195, 18 L. Ed. 776, as to validity of State court
to enjoin proceedings in United States court; United States v. Keokuk, 6
Wall. 517, 18 L. Ed. 934, on same points Watson v. Jones, 13 Wall. 719,
20 L. Ed. 672, reaffirming the rule; Dial v. Reynolds, 96 U. S. 341, 24
L. Ed. 644, applying the rule in a case respecting foreclosure proceedings;
dissenting opinion in Providence etc. S. S. Co. v. Hill Mfg. Co., 109 U. S.
607, 27 L. Ed. 1048, 3 Sup. Ct. 620, majority holding that proceedings in Dis-
trict Court relating to liability of ship owners for damage to goods, take
precedence over proceedings in State courts; In re Sawyer, 124 U. S. 220,
31 L. Ed. 409, 8 Sup. Ct. 492, holding injunction cannot issue from Cir-
cuit Court to restrain removal of municipal officer; The Celestine, 1 Biss.
12, Fed. Cas. 2541, where domestic vessel seized under State statute;
Amory v. Amory, 3 Biss. 271, Fed. Cas. 334, holding that United States
courts cannot impeach decree of State court having jurisdiction; Ruggles
V. Simonton, 3 Biss. 330, Fed. Cas. 12,120, as to sale of property under
decree of State court; City Bank of New York v. Skelton, 2 Blatchf. 28,
Fed. Cas. 2740, following and applying the doetrine ; Dennistoun v. Draper,
4 Blatchf. 339, Fed. Cas. 3804, holding further as to removal of causes
from State courts ; Evans v. Peck, 2 Flipp. 271, 274, Fed. Cas. 4566, deny-
ing power of Federal court to enjoin action of trespass in State court;
Perry Mfg. Co. v. Brown, 2 Wood. & M. 469, Fed. Cas. 11,015, holding
construction of State statutes by State courts conclusive ; Sumner v. Marcy,
3 Wood. & M. 119, 'Fed. Cas. 13,609, under facts similar to principal case;
Hutchinson v. Green, 2 McCrary, 476, 6 Fed. 638, as to disposition of
property under control of State court; Yiok Wo v. Crowley, 11 Sawy.
423, 425, 26 Fed. 208, 209, as to service of warrant issued by Police Court ;
Clark V. Binnringer, 3 Bank. Reg. 130, s. c, 38 How. Pr. 345, as to pro-
ceedings for dissolution of partnership; Wagner v. Drake, 31 Fed. 851,
extendii^ prohibition to injunctions issued to parties before State courts;
Tefift v. Sternberg, 40 Fed. 4, as ^ to disposition of property held under
mesne process of State court; Dillon v. Kansas City etc. Ry. Co., 43 Fed.
Ill, Federal court cannot, pending condemnation proceedings in State
court, enjoin petitioner from entering on land sought to be condemned;
Whitney v. Wilder, 54 Fed. 555, 13 U. S. App. 180, as to acts of adminis-
trator in distributing funds; Reinach v. Atlantic etc. Ry. Co., 58 Fed. 44,
as to acts of receiver appointed by State court; Worthy v. Lyon, 18 Ala.
787, holding that one State court will not interfere with proceedings in
another of co-ordinate jurisdiction; Ex parte Hill, 38 Ala. 462, but hold-
ing that State court could determine question of fact in case of arrest
by marshal of Confederate States under conscript laws; City of Opelika
▼. Daniel, 59 Ala. 215, as to interference by one State with proceedings
\
4 Cr. 179-180 NOTEiS ON U. S. REPORTS. 282
in another; Strozier v. Howes, 30 Ga. 680, as to inability of State 6oTirt
to enjoin proceedings in Federal courts; Munson v. Harroun, 34 111. 423,
86 Am. Dec. 317, on same point; Ex parte Holman, 28 Iowa, 106, 4 Am.
Bep. 169, as to habeas corpus to procure release of prisoner, held under
order of Federal court; Goodrich v. Hunton, 29 La. Ann. 376, holding that
suit pending in State court to enjoin execution of judgment of same court
cannot be removed to Federal court; Watson v. Bondurant, 30 La. Ann.
(pt. I), 8, as to auxiliary proceeding in State court; discussed and prin-
ciple applied in Brown v. Wallace, 4 Gill & J. 496, 2 Bland Ch. 603, as
to courts of concurrent jurisdiction in same State; Hill Mfg. Co. v. Provi-
dence etc. S. S. Co., 113 Mass. 500, 18 Am. Rep. 582, holding proceedings
in State court against ship owner for loss of goods, not affected by sub-
sequent proceeding in Federal court; Stone v. Sargent, 129 Mass. 507,
holding State Supreme Court has jurisdiction over bill of exceptions from
order of superior judge removing cause to Federal court; Carroll v. The
Bank, Harr. Ch. (Mich.) 204, as to proceedings in courts of sister States;
Rushworth v. The Judges, 58 N. J. L. 101, 32 Atl. 745, holding further
as to appellate jurisdiction of Federal courts; Mead v. Merritt, 2 Paige,
404, as to proceedings in courts of sister States ; Boyd v. Hawkins, 2 Dev.
Eq. 337, on same x)oint; Chapin v. James, 11 R. I. 89, 28 Am. Rep. 415,
as to process of Federal courts; Lockwood v. Nye, 2 Swan, 521, 58 Am.
Dec. 76, as to attachment issued by court of sister State; Dorr's Admr.
V. Rohr, 82 Va. 370, 3 Am. St. Rep. 114, fbllowing rule; Edwards etc. Co.
\v. Sprague, 76 Me. 62, refusing to remove cause only effect of which is
to stay proceedings in State court; Kittredge v. Emerson, 15 N. H. 269,
270, following rule.
Distinguished in Simon v. Southern Ry. Co., 236 U. S. 124, 127, 59 L. £<L
498, 499, 35 Sup. Ct. 255, restraining enforcement of void judgment of
State court; Hunt v. New York Cotton Exchange, 205 U. S. 338, 51 L. Ed.
827, 27 Sup. Ct. 529, Federal Circuit Court might enjoin use of exchange
quotations, although action on same subject matter pending in State court ;
Shaw V. Frey, 69 N. J. Eq. 324, 59 Atl. 812, State court may compel dis-
covery from one under its jurisdiction of matters necessary to trial of
Federal action and may for that purpose restrain prosecution of Federal
action pending discovery; Huntington v. Laidley, 176 U. S. 678, 44 L. Ed.
635, 20 Sup. Ct. 530, arguendo ; Moran v. Sturges, 154 U. S. 268, 38 L. Ed.
985, 14 Sup. Ct. 1022, as to admiralty proceeding to enforce maritime lien.
District Court having exclusive jurisdiction; Perry v. Sharpe, 8 Fed. 23,
holding that injunction prayed for before removal from State court may
be granted in Federal court; Texas etc. Ry. Co. v. Kuteman, 54 Fed. 551,
13 U. S. App. 99, holding that Federal court may enjoin prosecution in
State courts of multiplicity of suits not actually begun; Fisher v. Lord,
9 Fed. Cas. 135, where parties subject to jurisdiction of Federal courts;
Irving V. Hughes, 13 Fed. Cas. 13, and Yeadon v. Bank, 30 Fed. Cas. 797,
holding that while Federal court cannot enjoin proceedings in State court
it may enjoin party from suing contrary to bankrupt act of Congress;
Gay V. Brierfield etc. Co., 94 Ala. 311, 38 Am. St. Rep. 129, 11 South. 356,
holding that pendency of suit in Federal court against insolvent corpora-
283 NOTES ON U. S. REPORTS. ; 4 Cr. 180-202
tion does not onst jurisdiction of State court to entertain bill by creditors
not parties to former suit in Federal court.
Injunction against execution sales or other proceedings under final
process. Note, 30 L. B. A. 134.
4 Cr. 180-181, 2 I.. Ed. 588, WOOD Y. LIDE.
If writ of error be served before return day, it may be returned after,
•Ten at 0n1)6eanent term.
ReaflBrmed in l^ickett's Heirs v. Legerwood, 7 Pet. 147, 8 L. Ed. 639, and
Sparrow v. Strong, 3 Wall. 103, 18 L. Ed. 49. See also note, 1 Blackf. 6,
on general subject. While approving the principle, following cases have
dismissed appeals where record did not show proper service and return:
Villabolos v. United States, 6 How. 90, 12 L. Ed. 356, Buford v. Hick-
man, Hempsi 234, Fed. Cas. 2114a, State v. Kennedy, 18 N. J. L. 24, 25,
and State v. Commissioners etc., 37 N. J. L. 395. $ee also McCoy v. .
Lemons, Hempst. 216; Fed. Cas. 8730a, where appearance held to be waiver
of service.
Overruled in Grigsby v. Pureell, 99 U. S. 507, 26 L. Ed. 854.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 840, 841, 861, 858.
4 Gr. 186-202, 2 K Ed. 591, FITZSIMMONS v. KEWFOBT INS. CO.
Mmsm intention to enter blockaded port is not breach of blockade; there
nut be actual attempt to enter, knowing tbe fact of blockade.
Approved in dissenting opinion in The Adula, 176 U. S. 390, 44 L. Ed.
617, 20 Sup. Ct. 443, majority holding vessel leaving with intent to violate
blockade is liable to capture immediately upon departure; Olivera v. In-
surance Co., 3 Wheat. 197, 4 L. Ed. 368, on general subject; The Delta,
Blatchf . Pr. 134, 135, Fed. Cas. 3777, and United States v. Tropic Wind, 28
Fed. Cas. 219, arguendo.
Rule limited in The Empress, Blatchf. Pr. 178, 179, Fed. Cas. 4477, and
The Nyade, Newb. 372, Fed. Cas. 7046, where intention eoupled with
knowledge of facts held to be sufficient. In United States v. Packages,
27 Fed. Cas. 286, the principal case has been cited as holding that mere
sailing with intent to enter blockaded port constitutes breaclT of blockade.
Distinguished in The Adula, 176 U. S. 371, 44 L. Ed. 510, 20 Sup. Ct.
436, holding vessel sailing with intent to violate blockade renders her
subject to capture the moment she departs.
Liability of marine insurer for losses arising out of war. Note, 6
B. R. C. 16.
Sentence of foreign Court of Admiralty Is condusiTe with respect to wliat
f% prof esMs to decide.
Reaffirmed in Croudson v. Leonard, 4 Cr. 435, 2 L. Ed. 670. Cited in
Pinson ▼. Ivey, 1 Yerg. 350, as to adjudication regarding title to land.
Judgments in rem and their effect as res adjudicata. Note, 76 Am.
Dec. 724.
4 Cr. 202^216 NOTES ON U. S. REPORTS. 284
4 Or. 202-208, 2 L. Ed. 696, MABSHALL v. DELAWAKB INS. 00.
The State of the loss at the time of offer to abandon fixes right to abandon.
Approved in Bradlie v. Insurance Co., 12 Pet. 397, 9 L. Ed. 1182, where
value of vessel at place where repairs mast be made, held t(t-govem right ;
Orient Ins. Co. v, Adams, 123 U. S. 75, 81 L. Ed. 67. 8 Sup. Ct. 72, where
abandonment in good faith held not affected by change in circumstitnces
rendering repairs less expensive; Peele v. Insurance Co., 3 Mason, 37,
Fed. Cas. 10,905, holding further, act of underwriter in taking possession,
constituted acceptance of abandonment; Humphreys v. Insurance Co., 3
Mason, 436, Fed. Cas. 6871, holding that where abandonment not made
when right accrued, but vessel repaired, owner could not afterward
abandon-; Fuller v. Insurance Co., 31 Me. 327, as to repair of vessel by
purchaser after abandonment; Dorr v. Insurance Co., 4 Mass. 229, dis-
cussing right of abandonment; Radcliff v. Coster, 1 Hoff. Ch. 103, holding
offer must be based upon information of facts sufficient to warrant aban-
donment; MontgWery v. Insurance Co., 4 Binn. 470, but holding that
where assured does not abandon he may recover to extent of loss; Beale
V. Pettit, 1 Wash. 244, Fed. Cas. 1158, on general subject.
When abandonment may be made and total loss claimed under marine
policy. Note, 1 E. B. 0. 19.
When abandonment is necessary in order to claim total loss. Note,
1 E. B. 0. 44.
Criterion of time in cases of abandonment and total loss under marine
policy. Note, 1 E. B. 0. 180.
In case of capture, right to abandon ceases with final decree of restitatioii.
Cited in Olivera v. Union Ins. Co., 3 Wheat. 195, 4 L. Ed. 366^ and prin-
ciple applied where vessel detained in blockaded port; Adams %. Insurance
Co., 3 Binn. 293, where offer made after decree, but before actual restitu-
tion; Peele v. Insurance Co., 3 Mason, 65, 67, Fed. Cas. 10,905, in discus-
sion of general subject.
Liability of marine insurer for losses arising out of war. Note, 6
B. B. 0. 44, 46.
4 cr. 209-215, 2 L. Ed. 698, McILVAINE T. COX'S ISSSBE.
[See 2 Cr. 280, 2 L. Ed. 279.]
States became entitled on July 4, 1776, to rights and powers of soverelgii
States, .as respects their internal regulations.
Approved in dissenting opinion in Scheible v. Bacho, 41 Ala. 454, ma-
jority holding governments of Confederate States were governments de
facto, and that validity of contracts made under them must be tested by
Constitution as then existing; dissenting opinion in McElvain v. Mudd,
44 Ala. 70, majority holding that emancipation proclamation did not of
itself determine status of slaves, and thus did not invalidate eontraets
relating to them; Commonwealth v. Philadelphia etc. R. B. Co., 62 Pa. St.
292, 1 Am. Bep. 408, holding constitutional, act taxing tonnage of rail-
285 UNITED STATES v. BRIG UNION. 4 Cr. 216-218
ro&ds ; Sporrer y. Eifler, 1 Heisk. 637, snstaining power of State to provide
rules of evidence for its o^n courts. And see Dred Scott v. Sandford, 19
How. 502, 15 L. Ed. 741, where subject discussed generally.
When State of New Jersey, by act of 1776, asserted right to allegiance
of all persons bom, and at that time residing within State, act of such person
in afterwafd leaving and adhering to crown did not render him an alien.
Approved in dissenting opinion in Shanks v. Dupont, 3 Pet. 266, 7 L. Ed.
674, majority holding that marriage of woman to alien does not destroy
her allegiance; Dred Scott v. Sandford, 19 How. 577, 15 L. Ed. 772, as to
effect of Declaration of Independence; Jones v. McMasters, 20 How. 20,
15 L. Ed. 810, where burden of proof held to be on party asserting change
of allegiance; White v. Burnley, 20 How. 250, 15 L. Ed. 890, as to citizen-
ship of person forced to leave Texas prior to independence, and holding
farther as to effect of intention ; Boyd v. Thayer, 143 U. S. 163, 36 L. Ed.
110, 12 Sup. Ct. 382, holding that declaration of intention by father dur-
ing son's minority fixes status of latter; Cornwall v. Hoyt, 7 Conn, 427,
holding abandonment of country and adhering to public enemy, on part of
husband, restores wife to capacity as feme sole; Brooks v. Clay, 3 A. K.
Marsh. 550, 1 Litt. (Ky.) 266, where expatriation held not to work for-
feiture of property already acquired; Trimbles v. Harrison, 1 B. Mon.
143, where fact of remaining in country after treaty of peace, held prima
facie an election of allegiance; dissenting opinion in State ex rel. Thayer
y. Boyd, 31 Neb. 750, 48 N. W. 759, majority holding that act of Congress
admitting territory into Union does not ipso facto render inhabitants citi-
zens; Munro v. Merchant, 28 N. Y. 34, holding son, born of alien parents
daring temporary residence, to be alien if he adopts foreign residence of
parents; Dupont v. Pepper, Harp. Eq. 18, to point that marriage with
officer of foreign government does not divest wife of citizenship; Kil-
Itatrick v. Sisneros, 23 Tex. 125, holding status of residents of Texas fixed
by act declaring independence ; dissenting opinion in Read v. Read, 5 Call
(Va.), 198, majority holding that British subject born before Revolution
eonld not, before treaty of peace, inherit lands in this country. See also
oote to Jackson v. Clarke, 3 Wheat. 12, 4 L. Ed. 322. ^
Distinguished in Inglis v. Trustees, 3 Pet. 124, 125, 160, 163, 171, 7
L. Ed. 626, 627, 689, 640, 642, where person who left country previous to
Declaration of Independence, held never to have been citizen; Hebron v.
Colchester, 5 Day, 173, where British subject coming to this country pre-
vious to Declaration of Independence, held to have become legally settled
by purchase of lands after treaty of peace; Jackson v. White, 20 Johns.
326, where person claiming citizenship remained in country only as pris-
oner of war.
Effect of State Constitutions and statutes on inheritance by or from
alien. Note, 31 L. B. A. 96.
4 Or. 21&-218, 2 I.. Ed. 600, UNITED STATES y. BBIQ UNIOK.
Appeal dismissed for want of Jurisdictional facta.
Cited in Dred Scott v. Sandford, 19 How. 473, 15 L. Ed. 728, collecting
authorities on averment of jurisdictional facts.
4 Cr. 219-224 NOTES ON U. S. REPORTS. 286
Oral testimony admitted to determine vahie of property in dilate for
purpooes of appellate Jnrlediction.
Cited in Elgin v. Marshall, 106 U. S. 580, 27 L. Ed. 250, 1 Snp. Ct. 487,
holding affidavits admissible; Ringgold's Case, 1 Bland Oh. 24, admitting
affidavits and holding further as to notice to adverse party; Harris v.
Hopson, 5 Tex. 533, following rule; Dryden v. Swinbum, 15 W. Va. 250,
holding statement of record of lower court that value has been proved,
sufficient to establish jurisdiction; The Philadelphian, 60 Fed. 428, 21 U. S.
App. 90, discussing general subject.
4 Cr. 219-224, 2 L. Ed. 601, PAWUNQ Y. UNITKD STATES.
Testimony ia to be taken most strongly against party demurring.
Approved in Turner v. Anderson, 260 Mo. 18, 168 S. W. 947, and
Williams v. Kansas Southern Ry. Co., 257 Mo. 112, 52 L. R. A.
(N. S.) 443, 165 S. W. 794, reaffirming rule; Hardy v. Wise, 5 App.
D. C. Ill, refusing: to direct a verdict where evidence was conflicting;
Metropolitan Ry. Co. v. Fonville, 19 Okl. 293, 91 Pac. 905, court should
direct verdict where evidence is undisputed and conclusive ; dissenting opin-
iqx^ Slocum v. New York Life Ins. Co., 228 U. S. 414, 415, Ann. Cas.
1914D, 1029, 57 L. Ed. 900, 33 Sup. Ct. 523, majority holding that Circuit
Court of Appeals cannot, in accordance with State practice, direct that
judgment on evidence be entered contri^ry to verdict, but must award new
trial ; Columbian Ins. Co. v. Catlett, 12 Wheat. 389, 6 L. Ed. 667, as to evi-
dence of usage of trade; Pleasants v. Fant, 22 Wall. 121, 22 L. Ed. 783, hold-
ing further as to charge^to jury regarding burden of proof; United States
V. Williams, 1 Ware, 178, Fed. Cas. 16,724, holding, however, that party
demurring admits only facts fairly inferred from evidence; Hathaway v.
East Tennessee etc. R. R., 29 Fed. 491, as to evidence of negligence; Mt.
Adams etc. Ry. Co. v. Lowery, 74 Fed. 469, 43 U. S. App. 408, holding
further as to sufficiency of evidence; Catlin v. Gilder's Exrs., 3 Ala. 545,
holding that party having oifered evidence may not withdraw it and
demur tq evidence adduced by adverse party; Southern Life Ins. Co. v.
Gray, 3 Fla. 265, as to evidence of contract; Wilkinson v. Railroad Co.,
35 Fla. 85, 17 South. 72, and Higgs v. Shehee, 4 Fla. 384, as to effect where
evidence uncertain and contradictory; Phillips v. Dickerson, 85 111. 15,
as to facts admitted by demurrer; Joliet etc. Ry. Co. v. Velie, 140 111. 62,
29 N. E. 707, as to evidence of negligence; Hanna v. Pegg, 1 Blackf. 186,
as to evidence of assignment of promissory note ; Lindley v. Kelley, 42 Ind.
300, holding further, bill of exceptions will not lie where there is demurrer
to evidence; Willcutts v. Insurance Co., 81 Ind. 303, as to effect of con-
flict in evidence; Talkington v. Parish, 89 Ind. 203, as to evidence of
fraud in conveyance; Cleveland etc. Ry. Co. v. Adair, 12 Ind. App. 590, 39
N. E. 679, discussing what evidence may be demurred to; Stanchfield v.
Palmer, 4 G. Greene, 24, as to evidence tending to prove partnership;
Chewning v. Gatewood, 5 How. (Miss.) 555, holding that demurrer to evi-
dence of presentation of note admits fact; Nolan v. Shickle, 3 Mo. App.
309, as to evidence of contributory negligence and holding further as to
sufficiency of evidence; Muhleman v. Nat. Ins. Co., 6 W. Va. 614, applying
rule in action on insurance policy.
X
287 PAWLING v. UNITED STATES, 4 Cr. 219-224
Distinguished in Sl6cum v. New York Life Ins. Co^ 228 U. S. 391,
Ann. Oas. 1914D, 1029, 57 L. Ed. 891, 33 Sup. Ct. 523, Circuit Court of Ap-
peals cannot, in accordance with State prractice, direct that judgment on
evidence he entered contrary to verdict, but must award new trial.
Right to withdraw civil action from jury for insufficiency of proof.
Note, 15 E. R. 0. 71.
Stipulation by surety that bond not to be delivered until other sureties
sign renders instrument escrow; and parol is admissible to show stipulation.
Approved in Beach • v. Nevins, 162 Fed. 133, 18 L. R. A. (N. S.) 288,
89 C. C. A. 129, admitting oral evidence to show that note was delivered
on condition that certain corporate stock should be delivered to maker;
Torbiner v. White, 19 App. D. C. 172, parol evidence admissible to show
that maker of notes executed them as accommodation ; Davis v. O'Bryant,
23 Ind. App. 377, 55 N. E. 261, holding surety on appeal bond liable where
he consented to filing of bond without signature of other obligor; Novak
V. Pitlick, 120 Iowa, 291, 94 N. W. 918, holding instrument with blank
for •sureties and signed by alleged surety alone, principal not signing,
cannot be enforced against surety in absence of proof that he consented
to its delivery in its defective condition ; Hendry v. Cartwright, 14 N. M.
83, 84, 87, 8 L. R. A. (If. S.) 1056, 89 Pac. 311, 312, refusing to enforce
injunction bond against surety who signed it on promise of indemnity,
because bond was not acknowledged as required by rule of court; Horton
V. Stone, 32 R. I. 505, 506, 80 Atl. 4, refusing to enforce bond against
surety who signed it on condition that' another should sign, and signature
of latter was placed on bond by agent; Bopp v. Hansford, 18 Tex. Civ.
347, 45 S. W. 748, holding surety on guardian's bond did not sign condi-
tionally; Williams v. Hitchcock, 86 Wash. 540, 150 Pac. 1145, creditors
held not bound to examine receiver's bond ; Kidd v. Beckley, 64 W. Va. 85,
86, 60 S. E. 1092, irregular indorser of note who left same with maker for
deliveiy held liable thereon when payee had no notice of oral agreement
affecting delivery; Philadelphia etc. R. R. Co. v. Howard, 13 How. 334,
14 L Ed. 169, holding parol evidence admissible to show deed not fully
executed ; Ware v. Allen, 128 U. S. 597, 32 L. Ed. 565, 9 Sup. Ct. 176, ad-
mitting parol as to agreement to control note ; Burke v. Dulaney, 153 U. S.
235, 38 L. Ed. 700, 14 Sup. Ct. 818, as to promissory note delivered con-
ditionally; United States v. Hammond, 4 Biss. 286, Fed. Cas. 15,292, under
facts similar to those in principal case; Virginia v. Evans, 1 Cr. C. C.
582, Fed. Cas. 16,969, holding sureties competent witnesses as to provisions
in bond; Piles v. Plum, 2 Cr. C. C. 32, Fed. Cas. 11,165, where defendants
in joint action of trespass held competent witnesses for each other, if they
plead severally; Brown v. Brown, 1 Wood. & M. 330, Fed. C«s. 1994, as
to deed of gift ; Cowen v. Adams, 78 Fed. 551, 47 U. S. App. 676, as to
deed; Bibb v. Reid, 3 Ala. 91, as to executor's bond; Morgan v. Smith, 29
Ala. 286, to point that deed cannot be delivered to grantee as escrow;
Sharp V. Allgood, 100 Ala. 186, 14 South. 17, as to note signed by surety
on condition that another surety be obtained; State v. Wallis, 57 Ark.
73, 20 S. W,, 812, as to bond of special attorney for State; Hoboken Bank
y
4 Cr. 219-224 NOTES ON U. S. REPORTS. 288
V. Phelps, 34 CoBn. 103, as to bond securing loan^ Crawford ▼• Foster,
6 Qa. 204, 50 Am. Dec. 828, appl3ring the rule; Pepper v. State, 22 Ind.
411, 412, 85 Am. Dec. 439, 440, as to bond of county treasurer; Allen v.
Mamey, 65 Ind. 401, 32 Am. Rep. 75, following rule; McCramer v. Thomp-
son, 21 Iowa, 248, 260, arguendo; Millett v. Parker, 2 Met. (Ky.) 614,
holding surety to be competent witness to show condition; Chamberlin v.
Bi>ewer, 3 Bush (Ky.), 570, as to sheriff's bond; Wells v. Dill, 1 Mart.
(La.) (N. S.) 594, as to bond of administrator; McNamara v. Jarvis, 2
La. Ann. 592, holding further as to negligence of principal in performing
condition ; Canal etc. Co. v. Brown, 4 La. Ann. 546, but holding that surety
must retract within reasonable time after failure of condition; Hall v.
Parker, 37 Mich. 593, 26 Am. Rep. 542, where surety released because of
failure of condition; McCullough v. Day, 45 Mich. 557, 8 N. W. 536, hold-
ing, however, that evidence of intention must be clear; Linn Co. v. Farris,
52 Mo. 77, 14 Am. Rep. 391, and further as to effect of fraud in securing
signatures of sureties; Ayres v. Milroy, 53 Mo. 522, 14 Am. Rep.' 470, as
to promissory note delivered conditionally ; State v. Potter, 63 Mo. 219, 227,
21 Am. Rep. 443, 449, holding surety signing with such stipulation liable
to innocent obligee where bond delivered contrary to agreement; Gay v.
Murphy, 134 Mo. 107, 56 Am. St. Rep. 501, 34 S. W. 1093, holding fur-
ther as to burden of proof; State Bank v. Evans, 15 N. J. L. 162, 28 Am.
Dec. 405, and Ordinary v. Thatcher, 41 N. J. L. 417, 32 Am. Rep. 236, fol-
lowing rule; Black y. Lamb, 12 N. J. Eq. 117, as to indemnity bond;
People V. Bostwick, 32 N. Y. 453, as to bond securing loan; Whitford v.
Laidler, 94 N. Y. 152, 46 Am. Rep. 136, as to lease ; Milliken v. Brown, 1
Rawle, 399, where receipt, not under seal, to one of several joint debtors
for his proportion of debt, held to discharge others; Sullivan v. Williams,
43 S. C. 507, 21 S. E. 649, following rule; McCormick etc. Co. v. Faulkner,
7 S. D. 366, 58 Am. St. Rep. 841, 64 N. W. 164, applying principle to promis-
sory note; Brown v. State, 18 Tex. App. 328, holding as to effect of de-
livery to obligee ; State Bank v. Burton etc. Co., 14 Utah, 423, 48 Pac. 403,
holding further that promissory note containing conditional guaranty may
be delivered to payee; Fletcher v. Austin, 11 Vt. 449, 34 Am. Dec. 699,
following rule ; Smith v. The Bank, 32 Vt. 350, 353, 76 Am. Dec. 188, 186,
as to deed; Ward v. Churn, 18 Gratt. 811, 812, 98 Am. Dec. 756, 757. Hodge
V. Bank, 7 Ind. App. 98, 34 N. E. 124, and Floumoy v. Andrews,, 6 Mo.
515, following rule.
Distinguished in Newman v. Baker, 10 App. D. C. 195, refusing to admit
oral evidence to show that delivery and acceptance of sealed instrument
were conditional ; Book v. Hunt, 124 N. C. 175, 176, 32 S. E. 548, holding
that as against bona fide purchaser surcfties on note are bound though they
signed conditionally; Snowden v. State, 53 Tex. Cr. 442, 110 S. W. 443,
surety held liable on bail bond though he had agreed with sheriff that he
should be liable for smaller amount; also in the following cases where
instrument was perfect on its face and delivered unconditionally: Dair v.
United States, 16 Wall. 5, 21 L. Ed. 493; Riley v. Johnson, 10 Ga. 419;
Guard v. Bradley, 7 Ind. 605; Deardorff v. Foresman, 24 Ind. 483; State
V. Pepper, 31 Ind. 85; Carroll County v, Ruggles, 69 Iowa, 273, 275, 58
289 GRANT V. NAYLOR. 4 Cr. 224-236.
Am. Rep. 226, 226, 28 N. W. 592, 593 ; State v. Peck, $3 Me. 289, 296 ; Bank
V. Smith, 5 Ohio, 222; Bank v. Gass, 31 Vt. 319; Nash v. Pugate, 24 Gratt.
213, 18 Am. Rep. 645, s. c., 32 Gratt. 607, 34 Am. Rep. ^88 ; King County
V. Feny, 5 Wash. St. 545, 34 Am. St. Rep. 887, 32 Pac. 541 ; also in Mathis
V. Morgan, 72 Ga. 530, 53 Am. Rep. 850, holding snrety estopped from
claiming delivery as escrow when such delivery afforded opportunity for
forppcry of name^ of cosureties; State v. Clirisman, 2 Ind. 132; Carter v.
Houlton, 51 Kan. 14, 37 Am. St. Rep. 261, 32 Pac. 634; Blume v. Bowman,
2 Ired. 341, and Easton v. Driscoll, 18 R. I. 321, 27 Atl. 446, holding rule
inapplicable where instrument delivered to obligee; Taylor v. Jones, 3 La.
Ann. 621, holding judge by whom administrator's bond accepted not to be
competent to prove that bond was executed conditionally; Bickford v.
Daniels, 2 N. H. 74, holding that defeasance dependent for delivery upon
condition never performed will not render absolute deed a mortgage ; Bopp
V. Hansford, 45 S. W. 748, where surety signed renewal of guardian's bond,
attempting to impose condition that others sign, but judge accepting it
did not undi^rstand it to be conditional.
Criticised upon this point in Russell v. Freer, 56 N. Y. 69, State v.
Lewis, 73 N. C. 142, 143, 21 Am. Rep. 462, 463, Dun v. Garrett, 93 Tenn.
ass, 42 Am. St. Rep. 949, 27 S. W. 1014, and Belden v. Hurlbut, 94 Wis.
566, 69 N. W. 358, in discussions of general subject.
Escrows. Note, 130 Am. St. Rep. 914, 930.
Instruments to which term "escrow" may be applied. Note, Ann. Gas.
1916B, 1031.
• Failure of principal to sign obligations as affecting liability of surety.
Note, 2 Ann. Gas. 226.
Parol agreement against contract taking effect until others sign.
Note, 45 L. Ri A. 321, 324, 326, 339, 340, 345.
Parol evidence to contradict written instrument. Note, 11 £. R. G.
234.
i Or. 224-236, 2 L. Ed. 603, GRANT v. NAYLOR.
Wliere letter of credit is ambigaous as to name of party to whom addressed,
parol evidence is not admissible to show intention of writer.
Approved in Sprankle v. Truelove, 22 Ind. App. 685, 54 N. E. 464, hold-
ing parol evidence inadmissible to show that a written proposal of sale to
third party was in fact made to plaintiff; Morris & Co. v. Imcker, 158
Mich. 520, 123 N. W. 22, parol evidence inadmissible to show that contract
of guaranty executed for benefit of partnership was intended to be for
benefit of corporation; Bank of Seneca v. First Nat. Bank, 105 Mo. App.
725, 78 S. W. 1093, where bank cashed check without knowledge of' exist-
ence of letter of credit addressed "To Whom It May Concern," it cannot
have amount of check credited against amount named in letter; Black v.
Albery, 89 Ohio St. 245, 106 N. E. 40, refusing to enforce in fiavor of one
or more copartners contract of suretyship made in favor of partnership;
Levy V. Yarbrough, 41 Okl. 20, 136 Pac. 1121, mere acceptance of purchase
price or ordering of abstract will not take contract for sale of lands out
1—19
4 Cr. 224-236 NOTES ON U. S. REPORTS. 290
of statute of frauds; Lamm & Co. v. Colcord, 22 Okl. 499, 19 L. R. A.
(N. S.) 901, 98 Pac. 357, guaranty against default of individual cannot be
enforced where goods in question were furnished to corporation; Mead v.
White, 53 Wash. 642, 182 Am. St. Rep. 1092, 23 L. R. A. (N. S.) 1197. 102
Pac. 755, signatures of alleged sureties at bottom of building contract with-
out anything to show their relation thereto, do not satisfy statute of
frauds ; dissenting opinion in Salmon etc. Co. v. Goddard, 14 How. 463, 14
L. Ed. 500, majority holding parol evidence admissible to explain equivocal
terms in a memorandum of sale; National Bank v. Hall, 101 IT. S. 51, 25
L. Ed. 825, as to insufficiency of correspondence purporting to authorize
cashing of drafts; Butler v. Thompson, 11 Blatchf. 538, Fed. Cas. 2244,
holding memorandum of sale made by broker insufficient under statute;
Warner v. Brinton, 29 Fed. Cas. 237, holding void, will ambiguous in its
words and containing no reference to anything which would cure such
defect ; First National Bank v. Sowles, 46 Fed. 732, and Merchants' Bank
v. Armstrong, 65 Fed. 940, where representation by directors as to solvency
of bank held insufficient, under Vermont statute, to charge directors, such
representation not being addressed expressly to plaintiff; Allen v. Booker,
2 Stew. 24, 19 Am. Dec. 84, as to contract for purchase of land ; Woodbury
Bank v. Insurance Co., 29 Conn. 382, holding, parol evidence inadmissible
to show real party to contract of insurance; Henderson v. Johnson, 6 Ga.
392, holding parol inadmissible to show consideration for guaranty, where
under statute such consideration must be evidenced by writing; Johnson v.
Brown, 51 Ga. 500, holding further as to effect of alteration in letter of
credit without drawer's consent; Hodgins v. Bond, 1 N. H. 286, holding
that where signature was placed on blank note, a guaranty subsequently
written by payee was not sufficient memorandum; Ham v. Gk>odrich, 33
N. H. 36, Hickman v. Fargo, 1 Kan. App. 709, 42 Pac. 386, as to bail
bond; Bell v. Norwood, 7 La. 103, remarking that guaranty must be con-
strued strictly to charge guarantor; dissenting opinion in Succession of
Edwards, 34 La. Ann. 228, majority holding that authorization of agent to
bind principal by agreement required to be in writing may be shown by
parol ; Hood v. Bowman, 1 Freem. Ch. 294, respecting a contract to convey
and parol' proof thereof; Crane v. Specht, 39 Neb. 133, 42 Am. St Rep.
569, 57 N. W. 1018, following rule; Waters v. Travis, 9 Johns, 462, hold-
ing parol evidence inadmissible to vary terms of deed ; Lenington v. Camp-
bell, Tappan (Ohio), 109, holding that part performance of contract to
convey land does not take case out of statute ; McGovney v. State, 20 Ohio,
98, following rule; dissenting opinion in Williamson's Admr. v. Hall, 1
Ohio St. 198, majority holding that misrecital of condition in bond may
be corrected by parol ; dissenting opinion in Brown v. Dysinger, 1 Rawle,
418, majority holding parol evidence admissible to establish trust in case
of purchase of land; Sollee v. Warley, 1 Bail. 622, holding letter of credit
not assignable without consent of writer; Patton v. McClure, Mart, ft Y.
338, holding that equity will not relieve against provisions of statute; Alli-
son V. Rutledge, 5 Yerg. 194, following rule ; Smith v. Montgomery, 3 Tex.
207, where letter of credit addressed to two persons, but acted upon by one
only without reference to other, held not binding on guarantor.
291 WOODS V. YOUNG. 4 Cr. 237-238
Distinguished in Bleeker v. Hyde, 3 McLean, 280, Fed. Cas. 1537, where
letter gave general credit and advances made afterward approved by, guar-
antor; Loomis V. Smith, 17 Conn. 119, where parol evidence/ held admis-
sible, not to show guaranty, but extent of debt ; Michigan Bank v. Peck, 28
Yt. 207, 65 Am. Dec. 237, holding that where initials are used in letter of
credit, parol evidence is admissible to identify parties.
Letters of credit. Note, 28 Am. Rep. S47.
Contract by letter, when complete. Note, 32 Am. Eep. 51.
Liability after change in partnership or corporation under continu-
^g guaranty thereto. Note, 14 L. B. A. (N. S.) 1232.
Necessity that memorandum within statute of frauds show parties to
contract. Note, 13 Ann. Gas. 314.
Miscellaneous. Cited in Webster v. Wyser, 1 Stew, 188, to point that
in any action there can be but one plea puis darrein continuance; also in
Wiehold v. Hermann, 2 Mont. 610, to point that complaint must, under
statute, contain Christian names of parties; erroneously in United States
V. New Bedford Bridge, 1 Wood. & M. 488, Fed. Cas. 16,867.
i Gr. 237-238, 2 L. Ed. 607, WOODS ▼. YOTTNG,
Befnaal to continue cauae after It is at issue cannot be assigned as error.
Approved in United States v. Rio Grande Irrigation Co., 184 U. S. 423,
46 L. Ed. 622, 22 Sup. Ct. 430, Lyman v. Warner, 113 Fed. 88, Missouri
etc. Ry. Co. v. Elliott, 102 Fed. 99, and Hannum v. Hill, 52 W. Va. 170, 43
S. E. 225, all following rule ; Clement v. United States, 149 Fed. 312, up-
holding denial of continuance because of age and physical infirmity of
aecosed; Bradshaw v. Stott, 7 App. D. C. 280, quaere whether rule would
be followed when there was manifest abuse of discretion; Wright v. Hol-
lingsworth, 1 Pet. 168, 7 L. Ed. 98, applying rule to refusal of court to
allow amendment in pleadings ; Eamshaw v. United States, 146 U. S. 68, 36
L Ed. 889, 13 Sup. Ct. 15, and Isaacs v. United States, 159 U. S. 489, 40
L. Ed. 230, 16 Sup. Ct. 52, all following rule ; Texas etc. Ry. Co. v. Nelson,
50 Fed. 815, 2 U. S. App. 213, as to continuance because of absence of
material witness ; as also in Richmond etc. Co. v. Dick, 52 Fed. 380, 8 U. S.
App. 99, and Drexel v. True, 74 Fed. 13, 36 U. S. App. 611; Baker v. The
Bank, 74 Fed. 601, 41 U. S. App. 185, as to refusal to grant continuance
upon application of an intervener; Taylor v. Powers, 3 Ala. 285, where
principle applied to refusal to allow revision of defective bond; White v.
Trinity Church, 5 Conn. 188, as to refusal to grant new trial; Stone v.
Stevens, 12 Conn. 227, 30 Am. Dec. 615, as to refusal to set aside verdict ;
State V. Hunt, 4 La. Ann. 439, as to motion for continuance in criminal
cases ; also in State v. Brette, 6 La. Ann. 660, and State v. Muldoon, 9 La.
Ami. 26, on same point; Babcock v. Scott, 1 How. (Miss.) 101, and
Jameson v. Butler, 1 Neb. 119, both following rule; Romaine v. Norris,
8 N. J. L. 82, holding it to be within discretion of court to determine when
motion for nonsuit shall be heard ; M'Courry v. Doremus, 10 N. J. L. 249 ,
following rule; Crawford v. Railroad Co., 28 N. J. L. 482, applying rale
4 Cr. 239-293 NOTES ON U. S. REPORTS. 292
to refusal to allow amendment of pleadings as to substance; Bruch v.
Carter, 32 N. J. L. 559, and People v. Colt, 3 Hill, 436, ^as to continuance
in criminal cases; Clymer v. Thomas, 7 Serg. & R. 180, as to amendment
pi pleadings; also in Burk y. Huber, 2 Watts, 312, on same point; Borden
V. Houston, 2 Tex. 604, and Ringgold's Case, 1 Bland Ch. 9, discussing gen-
cral subject.
Denied in Brussard v. Trahan's Heirs, 4 Mart. (La.) (0. S.) 501.
Distinguished in Gilliland v. Rappleyea, 15 N. J. L. 143, holding that
where verdict has been set aside at instance of plaintiff, it is error to
render judgment for defendant; Brooks v. Calloway, 12 Leigh (Va.), 474,
holding rule otherwise as settled in Virginia; Fowler v. Colton, 1 Pinn.
339, and Wisconsin v. Doty, 1 Pinn. 404, under statute.
Limited in Logic v. Black, 24 W. Va. 22, and Buster v. Holland, 27
W. Va. 534, holding that abuse of discretion in refusing continuance is
subject for inquiry in higher court.
4 Or. 239-241, 2 L. Ed. 607, YOUNO ▼. PBESTON.
If contract under seal partly performed, and further performance pre-
yented by defendant, remedy is action on sealed instrument and not in assump-
sit upon Quantum meruit.
Approved in Kinney v. McNabb, 44 App. D. C. 344, and Magruder v. Belt,
7 App. D. C. 312, both reaffirming rule ; Walker v. Brown, 28 111. 384, 81 Am.
Dec. 289, holding that implied contract cannot exist where there is exx)ress
contract as to same subject matter; Clendennen v. Paulsel, 3 Mo. 232, 25
Am. Dec. 436, 487, holding person having contract under seal to do work
cannot, upon breach of contract by employer, sue in assumpsit for work and
labor; Boston etc. Co. v. Smith, 13 R. I. 35, holding where parties liable
jointly under specialty, action does not lie against one in assumpsit; Lewis
V. Weldon, 3 Rand. 82, ruling similarly in case of a series of dependent
contracts; Garred v. Doniphan, 10 Mo. 165, arguendo.
Distinguished in Saxton v. Railway Co., 4 N. M. 383 (202), 16 Pac. 853,
holding that where law prescribes form of corporate seal, private seal of
chief engineer of corporation is, therefore, not the corporate seal, and
corporation may be sued in assumpsit for breach of contract to which such
seal affixed.
4 Cr. 241-293, 2 L. Ed. 608, BOSE v. HIMELY.
Authority of tribunal as prize court, aa well as Jurisdiction on property,
may be inauired into. ^
Approved in Old Wayne Mutual Life Assn. v. McDonough, 204 U. S. 16,
51 L. Ed. 348, 27 Sup. Ct. 236, refusing to enforce judgment against non-
resident who was not served with process and made no appearance;
National Exchange Bank v. Wiley, 195 U. S. 263, 49 L. Ed. 187, 25 Sup.
Ct. 70, judgment under warrant of attorney annexed 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; Harris v. Cosby^ 173 Ala. 96, 55 South. 235, holding that General
293 ROSE V. HIMELY. 4 Cr. 241-293
«
Assembly of Cumberland Church, with concurrence of Presbyteries, could
authorize union with Presbyterian Church of United States; Territory v.
Delinquent Tax List, 3 Ariz. 91, 21 Pac. 894, holding Special Term of Dis-
trict Court has no jurisdiction of application for judgment for delinquent
taxes, though it was the next term held after the publication of the de-
linquent list and notice; Morse v. United States, 29 App. D. C. 439, order
directing sale of infant's realty held void for want of statutory authority;
Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 561, 78 Am. St. Rep. 749, 57
N. E. 449, holding order in garnishment proceedings requiring garnishee
to deliver property of defendant which he holds outside of State is void;
dissenting opmion in United States v. Ju Toy, 198 U. S. 276, 49 L/ Ed.
1049, 25 Sup. Ct. 644, majority upholding conclusiveness of decision of
immigration officers denying right of citizen of Chinese descent to enter
United States; dissenting 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
public administrator where deceased left no kin, that deceased left prop-
erty in State, is conclusive on collateral attack ; Hickey's Lessee v. Stewart,
3 How. 762, 11 L. Ed. 819, holding want of jurisdiction renders judgment
void; Williamson v. Berry, 8 How. 541, 12 L. Ed. 1190, as to decree of
eourt of equity ; Thompsofi v. Whitman, 18 Wall. 461, 21 L. Ed. 899, as to
judgment of Siajte court in case of seizure of vessel for violation of State
statute ; Guaranty etc. Co. v. Green Cove etc. Co., 139 U. S. 147, 86 L. Ed.
120, 11 Sup. Ct. 616, as to decree of foreclosure ; Scott v. McNeal, 154 U. S.
46, 38 L. Ed. 902, 14 Sup. Ct. 1113, as to proceeding in Probate Court;
Bell V. Ohio Life & Trust Co., 1 Biss. 270, Fed. Cas. 1260, holding further,
priority of jurisdiction determined by service of process ; The J. W. French,
5 Hughes, 432, 13 Fed. 919, holding void, sentence against person in suit
to which he was not a party, and which was not in rem nor against the
vessel; Lincoln v. Tower, 2 McLean, 477, 486, Fed. Cas. 8355, where prin-
ciple is applied to judgments of sister States; Juando (Stoughton) v.
Taylor, 2 Paine, 677, 678, 683, Fed. Cas. 7558, holding further as tQ juris-
diction of court over incidental questions; Ex parte Norton, 44 Ala. 186,
Slocum V. Wheeler, 1 Conn. 439, 451, 454, 457, as to jurisdiction of prize
court over prox)erty of enemy seized on land ; Holcomb v. Phelps, 16 Conn.
132, as to jurisdiction of Probate Court to order sale of property; Pritchett
V. Clark, 3 Harr. 247, holding as to effect of judgment where jiirisdietidb
fails ; also in McNealy v. Gregory, 13 Fla. 446, and in Opinion of Court to
Governor, 14 Fla. 306, on same point ; Justices- v. Selman, 6 Ga. 442, as
to power to appoint guardian ; Thomas v. People, 107 111. 627, 47 Am. Rep.
468, holding void, decree of Probate Court ordering sale of property, owner
being alive; Nooe v. Bradley, 3 Blackf. 160, Beard v. Beard, 21 Ind. 327, as
to jurisdiction to decree alimony; Melhop v. Doane, 31 Iowa, 400, 401,
7 Am. Rep. 149, 150, holding further as to effect of failure of jurisdiction ;
Magnire v. Maguire, 7 Dana (Ky.), 183, as to jurisdiction in action for
divorce; Cucullu v. Louisiana Ins. Co., 5. Mart. (N. S.) 469, 16 Am. Dec.
199, in proceedings between insurer and insured under marine insurance
contract; Palmer v. Oakley, 4 Dough. (Mich.) 490, 47 Am. Dec. 67, as id
^
/
4 Cr. 241-293^ NOTES ON U. S. REPORTS. 294
decree of Probate Court appointing guardian; Gkrault v. Anderson, Walk.
(Miss.) 34, 12 Am. Dec. 625, holding void decree in chancery against un-
represented deceased person; Latimer v. Union Pac. Ry., 43 Mo. 109, 97
Am. Dec. 379, as to judgments of courts of sister States; also in Russell
V. Perry, 14 N. H. 156, and Kittredge v. Emerson, 1^ N. H. 263, 267, on
same point ; Pennywit v. Foote, 27 Ohio St. 616, 22 Am. Rep. 349, in action
to recover on foreign judgment; Trutch v. Bunnell, 11 Or. 60, 60 Am. Rep.
457, 4 Pac. 589, as to jurisdiction to authorize mortgage by guardian of
ward's land; Cheriot v. Foussat, 3 Binn. 250, 267, as to decree of foreign
prize court condemning vessel; Bailey v. Insurance Co., 3 Brev. (S. C.)
369, holding sentence of foreign Admiralty Court conclusive as to rights
■ under marine insurance policy; Miller v. Miller, 1 Bail. 245, holding judg-
ment void if face of record shows want of jurisdiction; James v. Smith,
2 S. C. 187, holding further as to mere irregularity in proceedings; Lyles
V. Bolles, 8 S. C. 262, as to judgment pronounced at chambers; McCreery
V. Davis, 44 S. C. 211, 51 Am. St. Rep. 805, 22 S. E. 184, as to jurisdiction
of parties in divorce proceedings; Den v. Deaderiok's Ezrs., 1 Yerg. 140,
as to judgment on attachment ; also in Moren v. Killibrew, 2 Yei^. 380, as
to judgments of sister States generally; and in Earthman v. Jones, 2 Yerg.
493, holding further as to effect on jurisdiction where no process served;
Horan v. Wabrenberger, 9 Tex. 321, 58 Am. Dec 147, holding further as
to distinction between courts of general and those of limited jurisdiction ;
Hunter v. Martin, 4 Munf. (Va.) 53, holding jurisdiction of United States
court in issuing mandate directing reversal of judgment, reviewable in
State court; Herring v. Lee, 22 W. Va. 672, holding further as to fraud
of third party in altering judgment ; In re Tarble, 25 Wis. 398, 8 Am. Rep.
89, holding that State court may inquire into legality of detention of per-
son by military officer of United States.
Distinguished, in Noble v. Railroad Co., 147 U. S. 173, 87 L. Ed. 126, 13
Sup. Ct. 273, holding that decision of Secretary of Interior as to whether
railroad is entitled to right of way cannot be attacked collaterally.
Judgments in rem and their effect as res adjudicata. Note, 75 Am.
Dec. 724.
Foreign Judgment rendered by court of competent jurladlctlon, in conclu-
sive as to matters which it professes to decide.
Approved in Frame etc. v. Thormann, 102 Wis. 670, 79 N. W. 43, uphold-
ing decree thAt decedent was resident in State and administering on estate
located therein after appointment of administrator in another State ; Moch
V. Insurance Co., 4 Hughes, 119, 10 Fed. 706; Juando (Stoughton) v.
Taylor, 2 Paine, 679, Fed. Cas. 7658, following rule; The Fortitude, 3
Sumn. 230, Fed. Cas. 4953, as to action in rem on bottomry bond; Brad-
street V. Insurance Co., 3 Sumn. 605, Fed. Cas. 1793, holding sentence con-
clusive as to facts upon which based; The, Trenton, 4 Fed. 661, holding
that sale of vessel under decree of maritime eourt discharges all liens,
although same court could not have enforced liens for want of jurisdic-
tion; Pierce v. The Alberto, 19 Fed. Cas. 633, holding that conversion by
foreign government of piratical vessel into public vessel is conclusive evi-
295 ROSE V. HIMELY. 4 Cr. 241-293
dence of condemnation as prize; Wyman y. Campbell, 6 Port. 233, 238,
31 Am. Dec. 683, 686, holding that mere irregularity does not impair valid-
ity of judgment ; Holcomb v. Phelps, 16 Conn. 131, as to decree of Probate
Court directing sale of property; Rodgers y. Evans, 8 Ga. 145, 52 Am. Dec.
391, holding farther as to effect of error; Roth v. Roth, 104 111. 46, 44 Am.
Sep. 84, applying principle to decrees affecting status of persons; Reed
T. Wright, 2 G. Greene, 35, holding judgment not impeachable collaterally,
unless void on its face; Seely v. Reid, 3 G. Greene, 379, to same effect;
CQeuIlu V. Insurance Co., 5 Mart. (La.) (N. S.) 477, 16 AnL Dec. 205, as to
condemnation of vessel for illicit trade ; Moulin v. Insurance Co., 24 N. J. L.
237^ holding further i^ to effect of failure to serve process on defendant ;
so also in Monroe v. Douglas, 4 Sand. Ch. 181, 183 ; Hunt v. Hunt, 72 N. Y.
234, 28 Am. Sep. 141, as to decree of divorce ; Pelton y. Platner, 13 Ohio,
217, 42 Am. Dec. 199, applying rule to judgments in personam of sister
States; Sipes v. Whitney, 30 Ohio St. 74, to same effect; Cheriot v. Foussat,
3 Binn. 258, 260, 261, a prize case ; Passmore Williamson's Case, 26 Pa.
St. 30, 67 Am. Dec. 394, holding that State court cannot issue habeas
corpus to obtain release of prisoner confined under order of United States
eonrts; Keystone Bridge Co. v. Summers, 13 W. Va. 506, as to decree estab-
lishing highway.
Distinguished in Wisconsin v. Pelican Ins. Co., 127 U. S. 291, 82 L. Ed.
243, 8 Sup. Ct. 1374, as to. judgment in action for recovery of penalty;
Risley v. Bank, 83 N. Y. 332, 38 Am. Bep. 429, holding confiscation pro-
ceedings under act of Congress do not divest title of third persons which
originated prior to seizure, or of real owner not proceeded against.
Foreign judgment, how far conclusive. Note, 11 Am. Rep. 487.
Conclusiveness and enforceability of judgment of foreign court hav-
ing jurisdiction. Note, 5 £. E. 0. 745.
Conclusiveness of judgment of foreign country. Note, 20 L. R. A. 668.
Beeognition of foreign States is political question, to be decided by gov-
eament and not by courti of justice.
Cited in Gelston v. Hoyt, 3 Wheat. 324, 4 L. Ed. 401, holding insurrec-
tionary government not to be a "prince or State" within meaning of act
prohibiting fitting out of service of a foreign prince or State; Cherokee
Nation v. Georgia, 5 Pet. 59, 8 L. Ed. 46, holding that Indian tribe is not
"foreign State," and so cannot sue in United States courts; Luther v.
Borden, 7 How. 57, 12 L. Ed. 605, as to power to declare which is rightful
{.Dvernment in case of insurrection within a State; Mennett v. Chambers,
14 How. 51, 14 L. Ed. 322, holding further as to effect of subsequent recogni-
tion; White V. Hart, 13 Wall. 649, 20 L. Ed. 687, as to right of Congress
to authorize framing of new State Constitution ; Clarke v. United States,
3 Wash. 102, 104, Fed. Cas. 2838, refusing to recognize independence of
de facto government established in St. Domingo; The Ambrose Light, 25
Fed. 418, 433, holding further that recognition of rebel belligerency clothes
insurgents with quasi sovereignty for war purposes ; United States v. Pack-
ages, 27 Fed. Cas. 289, holding ''nonintercourse acts" to be in force until
determined otherwise by political authorities; so also in United States v.
4 Cr. 241-293 NOTES ON U. &. REPORTS. 296
Cement, 27 Fed. Cas. 293, and United States v. Cotton, 27 Fed. Cas. 328;
dissenting opinion, Scheible v. Bacho, 41 Ala. 460, majority holding Con-
federate States duriQg rebellion to have been de facto governments, and
contracts then made should be governed by respective Constitutions; Cen-
tral R. R. etc. Co. V. Ward, 37 Ga. 625, as to recognition of Confederate
States ; Perkins v. Rogers, 35 Ind. 156, 9 Am. Rep. 664, on the same point ;
Russell V. Barnes, 13 Johns. 155, under facts similar to those in principal
case ; so also in Gielston v. Hoyt, 13 Johns. 588 ; Wright v. Overall, 2 Cold.
340, 341, as to r6c<^nition of Confederate States, holding payment of debt
in Confederate currency void; also in Thornburg v. Harris, 3 Cold. 169,
on sfune point ; Hedges v. Price, 2 W. Va. 225, 226, 94 Am. Dec. 611, 612,
holding that persons engaged in rebellion are amenable to sovereign power
for injuries committed while so engaged; Baxter v. Brooks, 29 Ark. 190,
discussing general subjept.
Whether particular act is act of sovereignty or belligerent right is deter-
mined by nature of law and proceedings under It.
Approved Ex parte McDonald, 49 Mont. 47^, L. R. A. 1915B, 988, 143
Pac. 954, Governor cannot suspend constitutional guaranties in portion of
State where insurrection exists; The Prize Cases, 2 Black. 673, 17 L. Ed.
478, where principle is held to apply in case of rebellion ; Miller v. United
States, 11 Wall. 307, 20 L. Ed. 146, on same point ; The Hiawatha, Blatchf .
Pr. 10, 13, Fed. Cas. 6451, holding further as to effect of such acts on
neutrals; The Sarah Starr, Blatchf. Pr. 83, Fed. Cas. 12,352, arguendo;
Dole V. Insurance Co., 2 Cliff. 420, Fed. Cas. 3966, holding further as to
seizure by privateer; The Amy Warwick, 2 Sprague, 133, Fed. Cas. 341,
holding that belligerent right may exist without any declaration of Con-
gress ; The Ambrose Light, 25 Fed. 441, as to right of belligerents to seize
as pirates vessels acting as privateers without commissions ; United States
V. Tropic Wind, 28 Fed< Cas. 221, holding authority to establish blockade
to be a belligerent right; Norris v. Doniphan,. 4 Met. (Ky-) 395, as to
insurrection, and holdhig that insurgents cannot be treated at same time
as alien enemies and rebellious subjects ; Kershaw v. Kelsey, 100 Mass. 576,
97 Am. Dec. 138, 1 Am. Eep. 166, holding it to be discretionary as to which
will be exercised ; Hammond v. State, 3 Cold. 138, distinguishing, however,
between belligerent States and rebels as belligerents; Beirne v. Brown, 4
W. Va. 79, holding that either may be exercised in confiscating enemy's
property ; Caperton v. Martin, 4 W. Va. 140, 141, 143, 159, 6 Am. Rep. 271,
273, holding that both .may be exercised at same time toward insurgents ;
Hedges v. Price, 2 W. Va. 233, 94 Am. Dec. 618, discussing general subject.
Persons on board t'essel represent all interested in it, and if so situated
that they must take notice of proceedings and may assert rights of tbose
interested, all persona concerned are parties.
Approved in Overby v. Gordon, 177 U. S. 222, 44 L. Ed. 745, 20 Sup. Ct.
606, as to scope and binding effect of State court's finding as to domicile
in proceeding in rem; McMillan v. Spider Lake S. M. etc. L. Co., 115 Wis.
337, 96 Am. St. Rep. 947, 60 L. R. A. 689, 91 N. W. 980, holding that non-
resident alien cannot sue for death of son; Andrews y, Andrews, 188 U. S.
\
297 ■ ^ HUDSON v. GUESTIER. 4 Cr. 29^-298
35, 47 L. Ed. 871, 23 Sup. Ct. 241, arguendo ; dissenting opinion in Florida
V. Georgia, 17 How. 502, 15 L. Ed. 198, majority holding that in suit
between States to settle bounda^, United States not party, although
jiroprietor of lands in disputed territory; Gushing v. Laird, 107 U. S. 81,
27 L. Ed. 395, 2 Sup. Ct. 205, holding further that upon decree of restitu-
tion, vessel may be delivered to master.
Distinguished in dissenting opinion in Miller v. United States, 11 Wall.
328, 20 L. Ed. 152, majority holding that seizure of corporate stock may
be made by serving notice on president of corporation.
Jurisdiction over ie&. Note, 46 L. B. A. 265.
Seizure beyond limits of terzitofial Jurisdiction, for breach of municipal
regulation, gives no jurisdiction to courts of offended country.
Approved in Brown v. Estate of Fletcher, 210 U. S. 89, 52 L. Ed. 970, 28
Sup. Ct. 702, decree against executor with will annexed of nonresident does
not bind nonresident execptors and legatees ; Rainy Lake River Boom Corp.
V. Rainy River Lumber Co., 162 Fed. 292, 89 C. C. A. 267, State statute
held not to authorize corporation to extend boom beyond center of inter-
national boundary river to aid floating of logs; Duluth v. Orr, 115 Minn.
270, 132 N. W. 265, city adopting charter cannot extend jurisdiction beyond
city boundaries; The Sarah Starr, Blatchf. Pr. 82, Fed. Cas. 12,352^ argu-
endo; dissentii^ opinion in Hewett V. Allen, 54 Wis. 585, 12 N. W. 46, ma-
jority holding homestead exemption statute does not require residence in
State; Hernandez v. Aury, 12 Fed. Cas. 33, following rule; The Invihcible,'2
Gall. 39, 40 Fed. Cas. 7054, approving opinion of Johnson, J., on point that
vessel remains within jurisdiction of courts of captor's country, although
taken to neutral port.
Distinguished in Hudson v, Guestier, 4 Cr. 293, 2 L. Ed. 625| where
vessel seized within territorial jurisdiction.
Overruled in Hudson v. Guestier, 6 Cr. 284, 285, 8 L. Ed. 225.
Denied in Francis v. Ocean Ins. Co., 6 Cow. 425./
Seizure of vessels outside territorial jurisdiction for violation of
municipal law. Note, S Ann. Gas. 811. r '
Law governing validity of transfer of property. Note, 5 £. R. 0. 927,
929.
Miscellaneous. Cited in Jecker v. Montgomery, 13 How. 517, 14 L. Ed.
248, as to procedure; also in De Lovio v. Boit, 2 Gall. 436, Fed. Cas. 3776,
holding that jurisdiction of admiralty is not defeated in case of marine
tort by any subsequent act on land ; Prescott v. Bennett, 50 Ga. 274, as to
procedure; erroneously cited in Bank v. Moss, 6 How. 38, 12 L. Ed. 334;
Schooner Tilton, 5 Mason, 471, Fed. Cas. 14,054, as instance where admir-
alty asserted jurisdiction in petitory suit.
4 Or. 29S-298, 2 L. Ed. 625, HXTDSOK ▼. GIJESTIEB.
Foreign Judgment, rendered by court of competent JuxMictlon, in an
action in rem, la conclutlTe as to titld.
4 Cr. 299-305 NOTES ON U. S. REPORTS. * 298
Cited in Hradstreet v. Insurance Co., 3 Sumn. 605, Fed. Cas. 1793, hold-
ing sentence of condemnation conclusive as to rights of parties under
contract of marine insurance; Slocum-y. Wheeler, 1 Conn. 457, holding
further as to effect of loss of jurisdiction by recapture or escape; Cheriot
V. Foussat, 3 Binn. 251, 256, under facts similar to that in principal case.
Distinguished in Wisconsin y. Pelican Ins. Co., 127 U. S. 291, S2 L. Ed.
243, 8 Sup. Ct. 1374, as to judgment in action for recovery of penalty;
Hilton V. Guyot, 159 U. S. 167, 40 L. Ed. 109, 16 Sup. Ct. 145, as to judg-
ment for recovery of sum of money.
Conclusiveness of judgment of foreign country; Note, 20 L. R. A. 668.
Seizure for Iweach of municipal regnlatlons, made within jniladlction,
confers po88e88io& on sovereign, «ad his courts may condemn, althouifh res be
in neutral port.
Approved in Orient Ins. Co. v. Rudolph, 69 N. J. Eq. 679, 61 Atl. 31, pro-
duction and proof in ^efw Jersey court of order hy New York court appoint-
ing receiver in supplementary proceedings and reciting necessary jurisdic-
tional facts is conclusive of validity of order; Jecker v. Montgomery, 13
How. 516, 14 L. Ed. 248, where property sold in foreign port ; The Schooner
Bolina, 1 Qall. 81, Fed. Cas. 1608, as to seizure for violation of revenue
laws; The Invincible, 2 Gall. 36, 40 Fed. Cas. 7054, holding that rule
applies, although captured vessel belongs to neutral; The Arabella, 2 Gall.
370, Fed. Cas. 501, holding, however, that master of ship and ship's papers
must be brought within jurisdiction; Cheriot v. Foussat, 3 Binn. 259, 260,
261, holding further as to effect of recapture or escape; The Hiawatha,
Blatchf . Pr. 10, Fed. Cas. 6451, and The Sarah Starr, Blatchf . Pr. 83, Fed.
Cas. 12,352, discussing general subject.
Distinguished in Juando (Stoughton) v. Taylor, 2 Paine, 678, Fed. Cas.
.7,558, holding that where vessel is captured by noncommissioned privateer
and taken to neutral port, courts of such neutral country may decree
restitution. •
Questioned in Page v. Lenox, 15 Johns. 174.
4 Or. 209-305, k L. Ed. 627, AUSZANDEB ▼. HABBia
Averment of demise for three years not supported by proof of lease for
one year certain, and two years' further by consent of landlord.
dited in Tice v. Norton, 4 Wend. 666, following rule; Gladwell v. Hol-
comb, 60 Ohio St. 434, 71 Am. St. Rep. 727, 54 N. E. 475, holding upon
statutory three days' notice landlord may bring forcible detainer against
tenant holding over.
Plea of no rent azrear admits the demise as laid in avowry.
Cited in Middleton v. Quigley, 12 N. J. L. 356, distinguishing between
pleas non tenuit and no rent arrear. Rule applied directly in Hill v.
Miller, 5 Serg. & R. 357, Williams v. Smith, 10 Serg. & R. 205, and Carter
V. Grant, 32 Gratt. 772.
Miscellaneous. Cited in Kessler v. McConachy, 1 Rawie, 442, to point
that interruption of enjoyment of premises demised suspends rent.
299 CH APPEDELAINE v. DECHBNAUX. 4 Cr. 306-316
4 Cr. 30&^16, 2 L. Ed. B29, CHAFFEDELAIKB ▼. DXSOHENAUX.
Execatorg and admlnlstratOTs having JnriBdlctional capacity may sne in
Federal courts, althon^ decedent could not.
Approved in Ingersoll v. Coram, 211 U. S. 361, 5S L. Ed. 227, 29 Sup. Ct.
92, suit between administrators to enforce attorney's lien on distributive
share; Lanbscher v. Fay, 197 Fed. 880, applying rule to personal repre-
sentative who brings action for wrongful death on behalf of widow and
children of deceased; Irvine v. Bankard, 181 Fed. 210, citizenship of re-
ceiver appointed to enforce stockholder's liability is test of jurisdiction;
Atchison etc. Ry. Co. v. Phillips, 176 Fed. 667, 100 C. C. A. 215, mere
formal parties held not "interested"; Bishop v. Boston etc. M. R. R., 117
Fed. 772, holding complaint must allege citizenship of administrator;
Cincinnati etc. Ry. Co. v. N. K. Fairbanks etc. Co., 96 Fed. 467, holding
foreign administrator, being real party in interest in suit for wrongful
death, he may sue in Federal court; Sheltman v. Taylor's Committee, 116
Va. 764, 82 S. E. 699, residence of committee of lunatic governs jurisdic-
tion of suit against lunatic's estate; dissenting opinion in Lehigh Valley
Coal Co. V. Yensavage, 218 Fed. 554, 134 C. C. A. 275, majority holding
that objection that suit was not brought in proper district did not survive
general appearance ; Brown v. Fletcher, 235 U. S. 600, 59 L. Ed. 879, 35 Sup.
Ct. 154, and Ban v. Columbia Southern Ry. Co., 117 Fed. 25, both arguendo;
Childress v. Emory, 8 Wheat. 669, 5 L. Ed. 711, as to suit between execu-
tors of different estates; Clarke v. Mathewsen, 12 Pet. 171, 9 L. Ed.
1044« holding that administrator, although personally lacking jurisdictional
capacity, may revive suit in which decedent as plaintiff was competent to
sae; McNutt v. Bland, 2 How. 15, 11 L. Ed. 161, sustaining jurisdiction
where party beneficially interested- was competent (but see dissenting
opinion, 2 How. 22, 11 L. Ed. 164, to point that such interest must be
averred) ; dissenting opinion in Florida v. Georgia, 17 How. 499, 15 L. Ed.
196, majority holding attorney general to be vested with interests of United
States, as party to suit to settle boundary between States; Bushnell v.
Kennedy, 9 Wall. 391, 19 L. Ed. 738, limiting rule prohibiting actions by
assignees of ehoses in action, holding it to apply only to rights of action
founded on contract; Susquebanna Coal Co. v. Blatchford, 11 Wall. 175,
20 L. Ed. 180, appl3ring principle to actions by trustees; Rice v. Houston,
13 Wall. 67, 20 L. Ed. 484, asserting jurisdiction in case where executors
originally competent to sue removed to State where defendant resided;
Carter v. Treadwell, 3 Story, 50, Fed. Cas. 2480, holding, however, that
character as administrator must be fully established; so also in Vase v.
Philbrook, 3 Story, 344, Fed. Cas. 17,010, and Wood v. Mann, 1 Sumn.
583, Fed. Cas. 17,952; Harper v. Railroad Co., 36 Fed. Rep. 104, as to
action for damages for causing death of intestate; Reinach v. Railroad
Co., 58 Fed. 38, holding that beneficiary jurisdictionally competent, may
sue in case trustee incompetent by reason of citizenship; CaJderwood v.
Braly, 28 Cal. 99, as to removal of cause; Sharps etc. Co. v. Rowan, 34
Conn. 332, 91 Am. Dec. 729, holding that where jurisdiction depends on
citizenship of party, it is the party on the record; Dunn v. Waggoner, 3
Terg. 59, holding action by trustees, citizens of same State as defendants.
4 Cr. 306-^16 NOTES ON U. S. REPORTS. 300
not within jurisdiction of United States courts, although cestui que trust
resident of another State; Mead v. Walker, 15 Wis. 503, as to action by
trustee to recover debt; Mayer v. Foulkrod, 4 Wash. 352, Fed. Cas. 9341,
and dissenting opinion in Marshall v. Baltimore etc. R. R., 16 How. 350,
14 L. Ed. 968, approving rule in general discussion.
Distinguished in Sere v. Pitot, 6 Cr. 336, 3 L. Ed. 241, and United States
Bank v. McNair, 56 Fed. 325, denying application of rule jn suit by as-
signee of insolvent; Melius v. Thompson, 1 Cliff. 131, Fed. Cas. 9405, hold-
ing that administrator cannot be party to suit in official character in
another State for assets lawfully received by him in State of appointment;
Dodge V. Perkins, 4 Mason, 438, Fed. Cas. "3954, holding executor incom-
petent if citizen of same State as defendant, although testator competent ;
Clarke v. Mathewson, 2 Sumn. 263, Fed. Cas. 2,857, refusing to entertain
bill of revivor under which executor would be citizen of State of defendant.
Foreign judgments against an executor or administrator. Note, 27
L. R. A. 114.
«
AccQunt stated Is a bar to bill in equity to open settled account, unless
complainant dearly show it to be erroneous.
Approved in White v. Safe Harbor Match Co., 106 Fed. 110, holding
affidavit of settlement bar to reopening of account; Gordon v. Frazer, 13
App. D. C. 387, answer to account stated must relate to such account itself
and not to matters of anterior liability ; Marmion v. McClellan, 11 App.
D. C. 483, where one party to mutual accounts gives note to the other, it
is presumed to be in settlement of such accounts; State t. Illinois Cent.
R. Co., 246 111. 243, 248, 92 N. E. 838, 839, holding semi-annual statements
. of railroad company filed with Governor to be stated and settled accounts ;
Stock v.. Christie, 151 Iowa, 243, 36 L. R. A. (N; S.) 556, 130 N. W. 1076,
applying rule to amicable settlement of dispute as to amount of rent due;
Lull & Skinner Co. v. Klemmer etc. Co., 136 Iowa, 554, 114 N. W. 24, apply-
ing rule to settlement of amount due upon breach of contract; Johnson
V. Gallatin Valley Milling Co., 38 Mont. 89, 98 Pac. 885, applying nile
to settlement of dispute as to amount of grain delivered, resulting from
inaccuracy of scales ; Lawler v. Jennings, 18 Utah, 41, 55 Pac. 61, holding
palpable errors in settlement of account are not binding; Craig v. Gf^ley
Coal Land Co., 73 W. Va. 629, 80 S. E. 947, right to. open account stated
held barred by statute of limitations; Baker v. Biddle, 1 Bald. 418, Fed.
Cas. 764, holding further that where account is retained unreasonable time
without objection, it becomes a stated or settled account; so al^o in Bain-
bridge V. Wilcocks, 1 Bald. 540, Fed. Cas. 755 ; Pulliam v. Pulliam, 10 Fed.
56, Fed. Cas. 11,463a, but holding a,ccount stated only prima facie evidence
of its correctness; Elder v. Clark, 51 Fed. 120, holding evidence of mis-
take or iraud must be clear in order to set aside account; Clafling v. Ben-
nett, 51 Fed. 700, as to settlement of accounts between partners; Baxter
v. Card, 59 Fed. 167, holding acceptance of note for balance due, conclusive,
subject only to correction for mistake; Langdon v. Roane's Admr., 6 Ala.
526, 41 Am. Dec 61, holding further as to burden of proof where mistake
alleged; Desha y. Smith, 20 Ala. 752, and Paulling v. Creagh's Admr., 54
301 NOTES ON U. S. REPORTS. 4 Cr. 316-321
Ala. 652, on same point; Roberts v. Totten, 13 Ark. 616, as to settlement
of partnership accounts ; Branger v. Chevalier, 9 Cal. 361, on same point,
holding further as to effect on whole, of allegations of mistake in par-
ticular items ; so also in St. Louis v. Alexander, 23 Mo. 526, to same effect ;
Lawler v. Jennings, 55 Pac. 61, going behind an account stated, there being
a palpable error ; Kennedy v. Goodman, 14 Neb. 688, 16 N. W. 836, as to
presumption in case of fraud or mistake; Keller v. Keller, 18 Neb. 368, 25
N. W. 365, as to burden of proof; Swayze v. Swayze, 37 N. J. Eq. 187,
liolding burden of proof on party disputing* account ; Lockwood v. Thorne,
11 N. Y. 176, 62 Am. Dec. 84, as to what constitutes account stated ; McDow
V. Brown, 2 S. C. 107, 112, as to accounts between administrator of de-
ceased ward and executor of guardian; Seabright v. Seabright, 28 W. Va.
433, holding account stated presumed to be correct; Holmes v. Hunt, 122
Mass. 513, 23 Am. Rep. 388, arguendo.
Account stated. Note, 62 Am. Dec. 91.
The effect of balances struck in pass-books. Note, 134 Am. St. Rep.
. 1024.
4 Cr. 316-317, 2 Ii. Ed. 632, UNITED STATES T. McDOWELL.
Jnriidlctional amount in action on bond.
Approved in Cabot v. M'Master, 61 Fed. 131, 132, dismissing case where
evidence showed that plaintiff claimed less than jurisdictional amount;
United States v. Hill, 123 U. S. 683, 31 L. Ed. 276, 8 Sup. Ct. 309, denying
jurisdiction where amount due United States less than jurisdictional
amount, although penalty greater; Reynolds v. Sneed, 1 Ark. 200, denying
appeal where damages awarded against appellant less than amount re-
quired to g^ve jurisdiction, although amount claimed had been more than
necessar3r; State v. St. Louis Court of Appeals, 87 Mo. 572, under facts
similar to those in principal case ; Lewis v. Long, 3 Munf . ( Va.) 151, 155,
as to appeal from judgment in action of debt where amount awarded less
than jurisdictional amount; so also in Clark v. Brown, 8 Gratt. 553, in
action on the case.
Distinguished in Postmaster-General v. Cross, 4 Wash. C. C. 327, Fed.
Cas. 11,306, where action was to recover penalty itself.
Jurisdiction as to values, how determined. Note, 21 Am. St. Bep.
619.
4 Cr. 317--321, 2 I*. Ed. 633, MAYOB, ETC., OF ALEXANDRIA T. PATTEN.
In absence of direction, creditor may at any time dlect as to api^ication-
of payment.
Approved in White v. Costigan, 138 Cal. 568, 72 Pac. 179, holding credits
to have been applied to money borrowed for purchase money of land;
American Woolen Co. v. Maaget, 86 Conn. 244, Ann. Gas. 1913E, 889, 85
Atl. 587, applying payments to earliest items of account in absence of any
other application; People v. Grant, 139 Mich. 28, 102 N. W. 227, in absence
of designation by debtor to which of several accounts payment shall apply,
r»
4 Cr. 317-321 NOTES ON U. S. REPORTS. 302
•
creditor may make application at any time before suit; City of Lincoln v.
Lincoln St. R. Co., 67 Neb. 492, 93 N. W. 774, applying rule to payment
of taxes; Hopper v. Hopper, 61 S. C. 137, 39 S. E. 370, holding where pay-
ments are made generally, creditor may apply them to barred claims; Page
r. Patton, 5 Pet. 310, 8 L. Ed. 137, holding further that application is con-
cluded by election; Jones v. United States, 7 How. 691, 12 L. Ed. 874,
applying rule to accounts between government and postmaster; Sehuelen-
burg V. Martin, 1 McCrary, 351, 2 Fed. 749, sustaining right to apply to
debts unsecured; Martin v. Pope, 6 Ala. 540, 41 Am. Dec. 70, as to appro-
priation by factor of proceeds of sales; Haynes v. Waite, 14 Cal. 449,
holr^ing institution of suit evidences creditor's application; Wendt v. Ross,
33 Cal. 667, holding creditor bound by his election; Fairchild v. Holly, 10
Conn. 184, but applying 4)ayment to oldest debt, neither party having
directed application; Pickering v. Day, 3 Houst. 538, 95 Am. Dec. 310,
holding, however, that delay of creditor must not be such as to prejudice
third pai;ties ; Randall v. Pettes, 12 Fla. 535, holding that where bank held
notes and deposits of debtor, latter could not, after drawing largely on
deposits, direct application of balance toward payment of notes ; Hargroves
V. Cooke, 15 6a. 329, holding, however, that where neither party applies
payment, court may do so; Koch v. Roth, 150 111. 226, 37 N. E. 321, hold-
ing, however, that exercise of option by creditor must be reasonable; Fore-
lander V. Hicks, 6 Ind. 450, where principle applied to judgment debts;
Plummer v. Erskine, 58 Me. 61, holding election final; Mitchell v. Dall,
2 Har. & G. 173, holding application may be implied from circumstances;
Brady's Admr. v. Hill, 1 Mo. 317, 13 Am. Dec. 505, following rule; Paulson
v. Collier, 18 Mo. App. 606, 607, as to payment of rent' due ; Hilton v. Bur-
ley, 2 N. H. 196, holding that where neither party has directed application,
court should appropriate to unsecured debt; Caldwell v. Wentworth, 14
N. H. 437, holding that in absence of such reason court should appropriate
to earliest debt; Edwards v. Derrickson, 28 N. J. L. 67, applying rule; in
Seymour v. Van Slyck, 8 Wend. 417, holding it to be duty of court to make
application where neither party has done so; Stone v. Seymour, 15 Wend.
32, 40, applying rule in action against sureties on bond ; Bank of California
v. Webb, 94 N. Y. 472, holding as to effect qf request by debtor to exer-
cise option; Mass v. Adams, 4 Ired. Eq. 52, holding, however, that where
court makes direction it should be to debt most precarious; Bogart v.
Nevins, 6 Serg. & R. 378, as to bills of exchange ; Matossy v. Frosh, 9 Tex.
613, following the rule; Taylor v. Coleman, 20 Tex. 777, as to time when
option should be exercised ; Robinson v. Doolittle, 12 Vt. 249, holding, how-
ever, that intention of debtor, if determinable, must govern; Frazer v.
Miller, 7 Wash. 527, 35 Pac. 428, holding further as to proof of applica-
tion, Brady v. United States, 1 Wood. & M. 168, I^ed. Cas. 1636, as author-
ity for holding that application should be to oldest debt, but this is errrone-
ous. The rule has been approved in the following cases, discussing the
general subject: Bailey v. Wynkoop, 10 111. 452; Chapman v. Smith, 26
Gratt. 747; Miller v. Womble, 122 N. C. 139, 29 S. E. 103.
Distinguished in Stone v. Talbot, 4 Wis. 449, holding application cannot
be made to disputed debt; Jones v. Williams', 39 Wis. 308, holding rule
inapplicable where debtor has had no opportunity to direct application.
303 DAWSON 'S LESSEE v. GODFREY. 4 Cr. 321-^24
Application of payments. Note, 96 Am. St. Bep. 72.
Time when creditor may make application of payment. Note, Ann.
Gas. 1913E, 897, 898.
4 Or. 821-324, 2 L. Ed. 834, DAWBON'8 LESSEE ▼. OODFBET.
Ri^t of alien to inherit depends upon existing state of allegiance at
tijne descent cast.
Cited in Fairfax's Devisee v. Hunter's Lessee, 7 Cr. 620, 8 L. Ed. 459,
as to rights confirmed by treaty; Inglis v. Trustees, 3 Pet. 171, 7 L. Ed.
642, holding that person who left this country before Declaration of In-
dependence and never returned was an alien and could not subsequently
inherit lands; Tannis v. St. Cyre, 21 Ala. 465, as to right of emancipated
slave to inherit; Donovan v. Pitcher, 53 Ala. 414, 25 Am. Rep. 635, hold-
ing that where capacity wanting at time of descent cast, subsequent laws
enlarging it cannot operate retrospectively; Lyons v. California, 67 Cal.
382, 7 Pac. 764, defining term *' alien" in statute providing that nonresi-
dent aliens may inherit; Hebron v. Colchester, 5 Day, 172, holding that
British subject, coming to this country in 1775, and acquiring land by
purchase in 1794, was not an alien; Wundei^e v. Wunderle, 144 111. 58,
33 K E. 198, construing statute limiting disabilities of aliens; so also in
Crane v. Reeder, 21 Mich. 68, 4 Am. Rep. 439, to same effect, holding that
act authorizing ''any foreigner to take and hold lands," does not confer
upon heirs of such foreigner right to take such lands by inheritance;
Montgomery v. Dorion, 7 N. H. 480, holding further as to escheat of lands
of alien; Jackson v. White, 20 Johns. 324, holding resident in this country
while under parole as prisoner of war insufficient to establish right to
inherit; Orser v. Hoag, 3 Hill. 82, denying right of inheritance of one
bom here who left in 1783 and never returned ; Jackson 's Lessee v. Bums,
3 Binn. 82, 87; Trezevant v. Osbom, 3 Brev. (S. C.) 31, following rule;
Hunter v. Fairfax's Devisee, 1 M>inf. (Va.) 227, arguendo.
Effect of treaties on alien's right to inherit. Note, 32 L. R. A. 180.
Effect of State Constitutions and statutes on inheritance by or from
alien. Note, 31 L. R. A. 95. ,
Bight of inheritance not natural and perfect right, but creature of law.
Approved in Stone v. Elliott, 182 Ind.'462, 106 N. E. 713, title of
heirs related to deceased by blood is no higher than that of other heirs.
Nature of right to take by will or inheritance. Note, 9 L. R. A. (K. S.)
12L
Right to take property by inheritance or will as natural right pro-
tected by Constitution. Note, 9 Ann. Oas. 726.
Who are aliens, and their rights. Note, 2 E. R. 0. 648.
Miscellaneous. Cited also in Society etc. v. New Haven, 8 Wheat. 481,
5 L. Ed. 666» on point that Revolution did not deprive individual of dvil
rights!
4 Cr. 324-333 NOTES ON U. S. REPORTS. \ 304
4 Cr. 324-328, 2 L. Ed. 635, MOUNTS v. HODGSON.
Quaere, whether writ of error lies to refusal of court below to guadi an
execution upon motion.
Referred to in McCargo v. Chapman, 20 How. 566, 15 L. Ed. 1022, hold-
ing error does not lie to order of lower court quashing execution; so also
in The Elraira, 16 Fed. 136; Hicks v. Murphy, Walk.' (Miss.) 67, holding
that error will not lie for irregularity on part of clerk in issuing execu-
tion. But see Norcross v. Boulton, 16 N. J. L. 314, referring to principal
case and holding that error will lie to order quashing execution.
\
4 Cr. 328-333, 2 L. Ed. 636, BIiAINE ▼. THE CHARLES CABTEB.
Bottomry bond creates right enforceable in admiralty.
Cited in The Mary, 1 Paine, 676, Fed. Cas. 9187, enforcing bottomry
bond given by owner for money advanced to purchase cargo; concurring
opinion irf New Jersey etc. Co. v. Bank, 6 How. 421, 12 L. Ed. 498, dis-
cussing general subject; The Draco, 2 Sumn. 177, Fed. Cas. 4057, defining
bottomry bond.
Claims of seaman for wages -are preferred to a bottomry bond.
Cited in The Rodney, Blatchf. & H. 230, Fed. Cas. 11,993, marshaling
claims against vessel; Lewis v. The EKzabeth and Jane, 1 Ware, 41, Fed.
Cas. 8321, holding further as to effect of abandonment of wreck; The Dora,
34 Fed. 349, where advancement of money to pay seamen's wages held to
create lien superior to all others; The America, 1 Fed. Cas. 613, deferring
lien of materialman to that of seaman.
Priority between execution and bottomry bond not enforced till after
▼oyage bonded complete.
Approved in The Samuel Little, 221 Fed. 311, 137 C. C. A. 136, and The
Towanda, 215 Fed. 234, both holding seaman's wages preferred to lien
for repairs filed prior to wage claim; The Underwriter, 119 Fed. 740, 757,
discussing question of effect of limitation of master's authority in charter-
party; The Dubuque, 2 Abb. (U. S.) 31, 33, Fed. Cas. 4110^ applying rule
to attachment under claim for wages, and holding further as to time
within which original lien should be "enforced; The Favorite, 1 Biss. 528,
Fed. Cas. 4696, holding libel not maintainable where filed two years and
ten months after injury, and after attachment of vessel by assignee o{
shipper's bill of lading; The Utility, 1 Blatchf. & H. 225, Fed. Cas. 16,806,
as to lien for supplies furnished ; The Boston, Blatchf. & H. 326, 327, Fed.
Gas. 1669, on same point; Burke v. Brig M. P. Rich, 1 Cliff. 315, Fed. Cas.
2161, holding that delay must be unreasonable, and that mere departure
irom return, port does not waive lien ; Vande water v. The Yankee Blade,
McAll. 13, Fed. Cas. 16,847, holding further that maritime lien will not
be extended by implication; The Buckeye State, Newb. 114, Fed. Cas.
13,445, as to lien for materials furnished, holding a& to time in which
same must be enforced; Furniss v. Brig* Magoun, 01c. 66, Fed. Cas.
5163, discussing also priority- of lien for w:ages; The Schooner Romp,
01c. 207, Fed. Cas. 12,030, as to mortgage on vessel to secure pr&e of
305 BLAINE v. THE CHARLES CARTER. 4 Cr. 328-333
eaigo; Griswolj v. The Nevada, 2 Sawy. 146, Fed. Cas. 5839, holding claim
against vessel for injuries barred by unreasonable lapse of time ; Packard
V. The Sloop Louisa, 2 Wood. & M. 60, 61, 63, Fed. Cas. 10,652, as to
time within which lien for wages must be enforced ; Leland v. Ship Medora,
2 Wood. & M. 105, 107, Fed. Cas. 8237, also as to essentials of bottomry
bond; Greely v. Smith, 3 Wood. & M. 253, Fed. Cas. 13,009, on same
jjoint; The Arcturus, 18 Fed. 744, defining maritime lien; The J. W.
Tucker, 20 Fed. 133, as to lien for towage; The Young America, 30 Fed.
792, discussing priorities between liens; The Nebraska, 69 Fed. 1014,
34 U. S. App. 119, as to time within which lien must be enforced ; Marsh
v. The Minnie, 16 Fed. Cas. 812, determining priority between mortgage
and other liens; Pierce v. The Alberto, 19 Fed. Cas. 634, ai^^endo.
Distinguished in Cole v. The Atlantic, Crabbe, 448, Fed.^Cas. 2976, hold-
ing lien for materials not barred by lapse of two years, unaccompanied by
culpable neglect; The Mary, 1 Paine, 186, Fed. Cas. 9186, holding failure
of seamen to enforce lien for wages in port where discharged before end
of voyage does not waive lien.
Execution issued by Circuit Court before expiration of statutory period
after judgment is not void* but merely voidable.
Approved in Voorhees v. B^nk of United States, 10 Pet. 477, 9 L. Ed.
501, af&rming Bank of United States v. Van Voorhees, 1 McLean, 225,
Fed. Cas. 939, and holding sale on execution cannot be attacked collaterally,
although record does not show that all statutory provisions have been
eomplied with; Beebe v. United States, 161 U. S. 113, 40 L. Ed. 638, 16
Sup. Ct. 536, holding further as to presumption of regularity; Thompson
V. Phillips, 1 Bald. 271, Fed. Cas. 13,974, as to validity of sale, where alias
fieri facias not issued as required by statnte; Sumner's Lessee v. Moore,
2 McLean, 65, Fed. Cas. 13,610, holding sheriff's deed not avoidable col-
laterally, bec&u^e of defect in levy of execution; Wyman v. Campbell,
6 Port. 243, 31 Am. Dec. 689, as to sale under statute regulating sales of
property of deceased persons ; Tucker v. Harris, 13 Ga. 10, 58 Am. Dec. 494,
as to presumption of regularity of judgment where jurisdiction shown;
Swiggart v. Harber, 4 Scam. 373, 39 Am. Dec 424y discussing revivor of
judgment against administrator; Jones v. Carnahan, 63 Ind. 234, holding
that advantage may be taken of such irregularity only by defendant in
direct proceeding; Cavender v. Heirs of Smith, 1 Iowa, 348, holding pro-
visions in statute regulating levy of executions to be directory merely,
and on the same point in Denegre v. Haun, 14 Iowa, 248, 81 Am. Dec. 485 ;
Cross V. Knox, 32 Kan. 733, 5 Pac. 37, as to sale under decree of fore-
closure; Commonwealth v. O'Cull, 7 J. J. Marsh. 149, 23 Am. Dec. 394, as
to sale under execution issuing to county where defendant does not reside ;
Chesbro v. Barme, 163 Mass. 81, 82, 39 N. E. 1033, applying principle to
arrest of debtor under alias execution before return day of original; Elliott
V. Hart, 45 Mich. 236, 7 N. W. 813, as to writ of replevin, irregular on face
in description of property; Carson v. Walker, 16 Mo. 86, as to execution
issued within period forbidden by law; Wood v. Kinsman, 5 Vt. 598, as
to arrest under attachment of person exempt from arrest on civil process ;
1—20
4 Cr. 33a-366 NOTES ON U. S. REPORTS. 306
Pierson v. Gale, 8 Vt. 512, 30 Am. Pec, 489, holding sale under first execu-
tion, however irregular; conclusive, and attempt to enter under alias
execution renders party trespasser; and in Jackson v. Astor, 1 Pinn. 161,
39 Am. Dec. 294, as to sale by administrator under order of Probate Court;
Bayard v. Bayard, 2 Fed. Cas. 1060, arguendo.
Distinguished in dissenting opinion in Borden v. State, 11 Ark. 564,
majority holding judgment cannot be attacked collaterally, unless void for
want of jurisdictiozi.
4 Or. 333-346, 2 L. Ed. 638, UNITED STATES ▼. GUENEY.
Demurrer iKringB all pleadi&gs before court, and judgment mmit be glv«n
against party committing flxBt fault.
Cited in Donnell v. Jones, 13 Alal 500, 48 Am. Dec. 60, following iMle;
United States v. Peralta, 99 Fed. 624, treating demurrer as special plea.
Oovemment contracts are to be construed according to same rules as those
of indlvidualfl^ and intent controls.
Cited in dissenting opinion in Charles River Bridge v. Warren Bridge,
11 Pet. 611, 9 L. Ed. 611, majority holding that grant of charter powers to
corporation is to be construed strictly as against the corporation; Thorn-
dike v. United States, 2 Mason, 20, Fed. Cas. 13,987, holding that where
United States notes are payable in one year with interest until due, interest
continues until payment made after maturity; State v. Real Estate Bank,
5 Ark. 599,141 Am. Dec. 112, construing provisions in charter of banking
corporation; Thompson v. People, 23 Wend. 580, as to charter of bridge
corporation.
Payment after day stipulated, if accepted, discharges debt or obligation,
and is waiver of damages.
Cited in McConaughy v. Wiley, 13 Sawy. 163, 33 Fed. 452, as to pay-
ment for swamp-land purchased from State, holding that l^;islatnre could
not declare deed void after payment accepted; Mc Waters v. Draper, 5
T. B. Mon. 496, holding that plea of such payment and acceptance must
aver payment of full amount due.
Default of payment wlien due gives right to interest Arom such date.
Cited in Eaton v. Truesdail, 40 Mich. 7, holding that where instrument
specifies no time for payment, it bears interest from date of execution.
Miscellaneous. Cited in State v. Crocker, 5 Wyo. 398, 40 Pac. 684, to
point that certificate of division removes certified questions only and not
the whole cause; State v. Ashworth, 50 La. Ann. 100, 23 South. 272, ad-
mitting dying declarations in favor of accused in murder prosecution.
4 Cr. 347-366, 2 I*. Ed. 643, PEISCH v. WASE.
Goods saved from derelict not liable to forfeiture for nonpayment of duties
Wliere goods removed by strangers without consent of owners.
Approved in United States v. One Black Horse, 129 Fed. 168, livery rig
used wholly in United States to transport smuggled goods is subject to
307 PEISCH V. WARE. 4 Cr. 347-366
forfeiture, tiLough liveryman had no knowledge of purpose for which team
used; United States v. Two Barrels Whisky, 96 Fed. 482, holding wagon
used without owner's knowledge to convey unstamped whisky is not subject
to forfeiture; United States v. Thirty-three Barrels of Spirits, 1 Abb.
(U. S.) 313, 1 Low. 241, Fed. Cas. 16,470, to forfeiture, under internal
revenue laws, of implements found on premises where illicit trade carried
on ; The Waterloo, 1 Blatchf . & H. 120, Fed. Cas. 17,267, as to entry into
blockaded port of derelict vessel, brought in by salvors without owner's
consent; The Schooner Mary, 1 Gall. 210, Fed. Cas. 9183, as to entry into
blockaded port, of vessel in distress; and in United States v. Hayward,
2 Gall. 609, Fed. Cas. 16,336, on same point; Six Hundred and Fifty Chests
of Tea V. United States, 1 Paine, 607, 611, Fed. Cas. 12,916, holding rights
of 9wner not affected by fraud or misconduct of revenue officers-; The
Gertrude, 3 Story, 72, 74, 2 Ware (Dav.), 180, 182, Fed. Cas. 6370, as to
foreign goods found derelict and brought into port without collector's '•
stamp affixed; and in United States v. Curtis, 16 Fed. 189, on same point;
Cargo ex Lady £ssex, 39 Fed. 767, as to vessel entering port in distress,
and in United States '^. Eleven Hundred and Fifty Pounds of Celluloid,
82 Fed. 629, 632,"^ on same point ; United States v. Halberstadt, 26 Fed. Cas.
71, 73, construing act .providing against removal of empty liquor casks.
Distinguished in Moody v. McKinney, 73 S. C. 442, 63 S. E. %46, 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 con-
fiscation; United States v. The Sarah B. Harris, 4 Cliff. 154, Fed. Cas.
16,223, where act was intentional, and innocence of intention held no
excuse; United States v. Hutchinson, 1 Hask. (Fox's Dec.) 166, Fed Cas.
16,431, holding master liable for importing goods without manifest, al-
though ignorant that goods were on board; so also in Jackson v. United
States, 4 Mason, 190, Fed. Cas. 7149 ; United States v. Mules, 36 Fed. 84,
decreeing forfeiture of animals used in violi^tion of revenue law, although
owner ignorant of such wrongful use.
Action in rem against proceeds of private sale of property against
which such an action would lie. Note, 2 B. B. 0. 69.
Qaaeze, wlivtber goods saved from wreck are liable to duty.
Cited in The Waterloo, Blatchf. & H. 122, Fed. Cas. 17,267, holding
derelict goods dutiable under act of Congress; Bryant v. Commonwealth
Ins. Co., 6 Pick. 142, but i)oint not decided.
Amount of recovery for salvage. Note, 24 E. B. 0. 574.
Miscellaneous. Cited in Houseman v. Schooner North Carolina, 16 Pet.
48, 10 L. Ed. 667> as to jurisdiction of admiralty under facts similar to
those in principal case; also in The Wave, Blatchf. & H. 240, Fed. Cas.
17,297, on same point. Distinguished in Church v. Seventeen Hundred
Dollars, 6 Fed. Cas. 674, denying jurisdiction of admiralty, over action
for money had and received under agreement to do salvage service.
/
4 Cr. 367-398 NOTES ON U. jS. REPORTS. 308
4 Cr. 867--369, 2 L. Ed. 649, SHEABMAN y. IBVINE'S LESSEE.
Entry need not be made daring period prescxlbed by sMnte of limita-
tions, after title has accrued, unless possession of party occuping is adverse.
Cited in Wade v. Doyle, 17 Fla. 528, in ejectment plea of limitations
simply denying seizure or possession of plaintiff, his ancestor or predecessor,
within seven years, is bad ; May v. Rumney, 1 Mich. 11, as to ejectment for
dower ; Hawk v. 'Senseman, 6 Serg. & R. 24, holding that it is unnecessary
to action of ejectment'^o allege possession within statutory period.
4 Or. 370-382, 2 L. Ed. 650, ALEXANDER v. BALTIMORE INS. CO.
Seizure of cargo, vessel being at liberty to proceed, does not justify
abandonment of vessel.
Cited in Bradlie v. Insurance Co., 12 Pet. 401, 402, 9 L. Ed. 1183, 1134,
holding that loss of voyage does not justify abandonment; and in Church
V. Insurance Co., 1 Mason, 343, Fed. Cas. 2711, to same effect; Taber v.
Insurance Co., 131 Mass. 249, holding further as to effect of delay on part
of insured in abandoning ; Ritchie v. Insurance Co., 9 Serg. & R. 506, hold-
ing that total loss of cargo, during voyage, does not constitute constructive
total loss of. vessel; Greene v. Insurance Co., 9 Allen, 225, arguendo.
DistinguRhed in Peele v. Insurance Co., 3 Mason, 58, Fed. Cas. 10,905,
where such abandonment was accepted by underwriters.
When abandonment is necessary in order to claim total loss. Note,
1 E. R. 0. 45.
Liability of marine insurer for losses arising out of war. Note, 5
E. B. 0. S9, 44.
4 Cr. 382-383, 2 L. Ed. 654, MATTHEWS v. ZANE.
Supreme court's appellate Jurisdiction extends to question respecting title
to land, both parties claiming under same act of Congress.
Cited in Ross v. Barland, 1 Pet. 664, 7 L. Ed. 306, and Mobile v. Eslava,
16 Pet. 249, 10 L. Ed. 953, both following rule ; Buel v. Van Ness, 8 Wheat.
324, 5 L. Ed. 627, extending principle to conflicting claims to forfeiture
under revenue laws; Kissell v. St. Louis Public Schools, 18 How. 27, 16
L« Ed. 328, as dispute regarding title to school lands ; Lewis v. Lewis, 9 Mo.
190, 43 Am. Dec. 546, asserting jurisdiction of State courts to determine
rights of parties in first instance.
Time and manner of raising and deciding questions in State court to
obtain review in Federal Supreme Court. Note, 63 L. B. A. 55.
4 Cr. 384-398, 2 L. Ed. 655, TOUNQ v. BANK OF ALEXANDBIA.
Act creating corporation Is public act, and being printed in conformity
with general act, is sufficiently authenticated.
Cited in Cox v. Robinson, 2 Stew. & P. 97, as to act prescribing rate of
interest; and in Handrick v. Andrews, 9 Port. 38, on same point; Vance v.
Bank, 1 Blackf . 80, as to act of territorial legislature creating bank after-
309 YOUNG V. BAl^^ OP ALEXANDRIA. 4 Cr. 384-398
ward recognized by State Constitution as corporate body; Henthorn v.
Shepherd, 1 Blackf. 160, holding that act of State ceding land to United
States will be judicially noticed ; Emery v. Berry, 28 N. H. 486, 61 Am. Dec.
627, holding that such acts cannot be proven by parol evidence alone;
Smith V. Strong, 2 Hill, 247, as to act incorporating bank; Crawford v.
Linn Co., 11 Or. 600, 6 Pac. 747, holding that question as to whether act
is public or private is to be determined by subject matter ; l^iddis v. James,
6 Binn. 327, 6 Am. Dec. 457, extending principle to private acts; Kean v.
Rice, 12 Serg. & R. 207, as to penal statute; Penniman, Petitioner, 11 R. I.
339, as to act prescribing liability of stockholders of corporation; Bank of
Newberry v. Railroad Co., 9 Rich. 498, as to act incorporating bank; State
V. Abbey, 29 Vt. 65,^ 67 Am. Dec. 756, as to act regulating production of
evidence in prosecution for bigamy; and in Stribbling v. Bank, 5 Rand.
140, as to act incorporating bank; United States v. Wilspn, 1 Bald. 91,
Fed. Gas. 16,730, discussing general subject.
Admissibility of verified copy of public document. Note, 11 E. R. O.
457.
Chrants of extraordinary remedies form.no part of corporate franchises
-wtilcli will be respected in foreign courts.
Cited in Bank of Columbia v. Okely, 4 Whea,t. 245^ 4 L. E4.. .561, as to
clause giving summary process by execution; United States v. Railroad,
98 U. S. 606, 25 L. Ed. 152, asserting right of Congress to modify charter
provision relating to procedure ; Carey v. Giles, 9 Ga. 258, upholding power
of legislature to appoint receiver for insolvent bank; Miners' Bank v.
United States, Morris, 484, 43 Am. Dec. 116, holding that bank charter may
be repealed where such power reserved in act of incorporation; Howard v.
Insurance Co., 13 B. Mon. 285, 286, ' as to act providing that insurance
company may j^ sued in certain courts; Burton v. State, 3 Gill, 9, as to
exemption of bigik from operation of law requiring affixing of stamps to
bonds or obligations; Debolt v. Insurance Co., 1 Ohio St. 687, applying
pfiinciple to exemption from taxation.
Appeal lies from Circuit Court for District of Columbia to Supreme Court,
wliere corporation chartered by Virginia is party, although charter contains
pirovifllon to contrary.
Approved in Winslow v. Baltimore etc. R. R. Co., 28 App. D. C. 139,
xipholding power of Court of Appeals of District of Columbia to review
final order of Supreme Court of that District; Carter's Heirs v. Cutting,
8 Cr. 252, 3 L. Ed. 553, sustaining appeal from decree of Circuit Court of
District, affirming judgment of Orphans' Court; Railroad Co. v. fchurch,
19 Wail. 64, 22 L. Ed. 98, holding that appeal lies in all cases not ex-
pressly excepted by act of Congress; Ormsby v. Webb, 134 U. S. 55, 61,
S3 !■. Ed. 809, 811, 10 Sup. Ct. 481, 483, upholding Supreme Court's juris-
diction over error to District of Columbia Supreme Court in will case;
Smith V. Bank of Columbia, 4 Cr. C. C. 149, Fed. Cas. 13,011, construing
section of charter of Bank of Columbia.
\
4 Cr. 398-414 NOTES ON U. S. REPORTS. 310
4 Cr. 398-401, 2 L. Eel 659, SPIEBS v. WILLISON.
Parol evidence of existence of deed of gift is admissible to show nature
of possession accompanying it.
Approved in Ramsay v. Lee, 4 Cr. 402, 2 L. Ed. 660, following rule;
Graham v. Lockh'art, 8 Ala. 25, holding admissible, parol evidence of notes
described as considei-ation for deed of trust; Hogan v. Reynolds, 8 Ala.
68, holding, in action for purchase money of note, parol evidence of sale
admissible, without production of note; East v. Pace, 57 Ala. 524, where
rule as to production of best evidence held not to apply to matter merely
incidental or collateral; and in Sprague v. Hosmer, 82 N. Y. 471, to same
effect; Lowry v. Pinson, 2 Bail. 328, 23 Am. Dec. 142, holding that barty
impeaching sale for fraud may show by parol the execution of ailothcr
conveyance without consideration; Sims v. Jones, 43 S. C. 95, 20 S. E. 906,
discussing proof of instrument on cross-examination; Merrit v. Smith,
6 Leigh (Va.), 493, under facts similar to principal case; Taylor y. Peck,
21 Gratt. 20, holding that where fact of occupation alone is in issue, with-
out respect to terms of tenancy, lease may be proven by parol.
4 Cr. 40&-414, 2 L. Ed. 660, 8TEAD ▼. 00X7BSE.
Plea containing, in substance, sufllcient to bar bill, if replied to and found
tme in fact, is bar, tboagb defective in form.
Approved in Barber v. National Carbon Co., 129 Fed. 377, 64 C. C. A. 40,
appl3dng rule to plea to bill for infringement of patent; Jones v. Hillis,
100 Fed. 356, holding that determination in favor of defendant of facts
stated in plea does not result in dismissal of bill; Dalzell v. Dueber Mfg.
Co., 149 U. S. 326. 37 L. Ed. 756, 13 Sup. Ct. 890, on point that where plea
is not supported by testimony it must be overruled; United States v. Cali-
fornia Land Co., 148 U. S. 40, 37 L. Ed. 359, 13 Sup. Ct. 461, foUowing
rule ; Farley v. Kittson, 120 U. S. 315, 30 L. Ed. 688, 7 Sup. Ct. 540, hold-
ing, however, that objection to equity of plaintiff's claim cannot be taken
by pleas.
Distinguished in Matthews v. Lalance etc. Co., 18 Blatchf. 87, 2 Fed. 235,
where plea held bad in substance.
Tax collector must conform to law from wbicb bis power is derived,
otherwise he makes no title. Unnecessary sale of ^ifhole tract where sale of
part would satisfy tax is void.
Approved in Williams v. Chas. F. Dunn & Sons Co., 163 N. C. 214, 79
8. E. 515, setting aside execution sale of three lots sold en masse where
sale of- one would have been sufficient, and fraud was shown ; Younger v.
Meadows, 63 W. Va. 283, 59 S. E. 1090, setting aside tax sale of property
en masse for grossly inadequate price; Columbia Finance & Trust Co. v.
Fierbaugh, 59 W. Va. 338, 53 S. E. 470, holding burden of proof is on
purchaser at tax sale in action seeking to set aside s^le of land for de-
linquent taxes; Williams v. Peyton's Lessee, 4 Wheat. 82, 4 L. Ed. 520,
holding that party claiming under such sale must show compliance with
statute ; so also in Mason v. Fearson, 9 How. 260, IS L. Ed. 130, and Early
T. Homans, 16 How. 618, 14 L. Ed. 1083; French v. Edwards, 13 Wall. 513,
3U STEAD V. COURSE. 4 Cr. 403-414
20 L. Ed. 704, holding recitals in she^if's deed as to manner in which judg-
ment executed to be evidence against grantee; Schroeder v. Young, 161
U. S. Ml, 40 L. Ed. 725, 16 Sup.' Ct. 515, as to sale on execution ; United
States V. Pacific R. R., 1 McCrary, 7, 1 Fed. 102, holding, however, that
statute should be construed favorably to innocent purchasers; Lyon v.
Hant, 11 Ala. 312, 46 Am, Dec. 223, as to burden of proof; Mahone v.
Williams, 39 Ala. 217, as to sale under decree of foreclosure; Ritch v.
£ichell!^rger, 13 Fla. 182, setting aside sale where more land sold than
necessary to pay tax; Dickerson v. Acost^, 15 Fla. 620, construing act of
Congress providing for forfeiture of land for nonpayment of taxes ; Curtis
¥. ^wearingen, Breese, 142, discussing as to burden of proof; Day v.
Graham, 1 GiU, 443} as to sale of lots en masse when susceptible of di-
vision; Scott V. Babcock, 3 G. Greene, 140, holding that there is no pre-
sumption in f avo:r *of authority of officer to sell ; Laraby v. Reid, 3 G.
Greene, 420, where order of sale did not conform to that prescribed by
statute; Penn v. Clemans, 19 Iowa, 379, holding irregular sale in gpross of
several distinct parcels of land; McCready v. Sexton, 29 Iowa, 392, 4 Am.
Rep. 230, holding clause in statute making tax deed "conclusive evidence,"
to apply only to regularity of proceedings and not to authority of officer
to sell; City Bank oi New Orleans v. Mclntyre, 8 Rob. (La.) 478, but
where execution debtor made no objection to manner of sale, held he could
not enjoin purchaser . from using property pending suit to annul; Nesbitt
v. Dallam, 7 Gill & J. 512, 28 Am. Dec 248, as to sale of property en masse ;
Hamilton v. Valiant, 30 Md. 140, as to failure to give notice where re-
quired ; Margraff v. Cunningham, 57 Md. 588, as to sale en masse ; Rowland
V. Doty, Har. Ch. (Mich.) 10, holding tax sale, although regular, void if
tax paid; Reeds v. Morton, 9 Mo. 886, affirming Morton v. Reeds, 6 Mo. 73,
86, holding that in all summary and ex parte proceedings burden of proof
is on party claiming under them; Gordon>^. Edson, 2 N. H. 153, holding
sheriff liable for escape where prisoner released ou bonds in sum less than
that required by statute ; Brown v. Dinsmoor, 3 N. H. 105, as to failure to
describe land of nonresident in assessment list; Thompson v. Currier, 24
N. H. 239, as to sale on execution of more property than necessary to
satisfy judgment; Howell v. Sebring, 14 N. J. Eq. 93, holding executor
bound by directions in will regarding disposal of property; Johnson v.
Crarrett, 16 N. J. Eq. 32, under facts similar to principal case; Hopper v.
Malleson's Exrs., 16 N. J. Eq. 384, holding that the tax deed impugned is
not prima facie evidence of regularity; dissenting opinion in Jackson v.
Roberts' Exrs., 11 Wend. 434, 435, majority holding parol evidence in-
admissible to show that one of several executions under which sales made
had been satisfied; Tieman v. Wilson, 6 Johns. Ch. 414, under facts similar
to principal case; dissenting opinion in Register v. Bryan, 2 Hawks, 21,
majority holding sale en masse valid; Lessee of Holt v. Hemphill, 3 Ohio,
234, holding further as to burden of proof; Lafferty v. Byers, 5 Ohio, 458,
on same point ; Wain v. Shearman, 8 Serg. & R. 369, as to tax sale void
for want of authority to sell ; dissenting opinion in Stewart v. Schoenf elt,
13 Serg. & R. 375, majority holding valid, sale of property for taxes, where
original assessment made without authority; Winters v. Burford^ 6 Cold.
4 Cr. 415-421 \ NOTES ON U. S. REPORTS. 312
332, as to sale en masse; Hadley v. Tankersley, 8 Tex. 20, <;onstruing
statute providing that "tax deed shall be good and effectual both in- law
and equity"; Hall v. Collins, 4 Vt. 324, discussing as to bulrden of proof;
Flanagan v. Grimmet, 10 Gratt. 426; Dequasie v. Harris, 16 W. Va. 353,
construing strictly, statute providing that tax deed shldl be prima facie
evidence of regularity of sale. The principal case has been approved on
this point in the following cases discussing the general subject : Jackson v.
Morse, 18 Johns. 443, 9 Am. Dec. 227; Jackson v. Shepard, 7 Cot^ 92, 17
Am. Dec. 505 ; Aldrich v. Wilcox, 10 R. I. 411.
Distinguished in Merrick v. Hutt, 15 Ark. 338, and Sharpleigh v. Sur-
dam, 1 Flipp. 481, Fed. Cas. 18,711, under statute; Cavender v. Smith,
] Iowa, 354, holding statute prescribing order in which property is to be
sold, to be merely directory; Hutchins v. Lee, Walk. (Miss.) 294, holding
provisions in statute regulating sale of fugitive slaves to be directory only ;
Minor v. Natchez, 4 Smedes & M. 627, 43 Am. Dec. 495, as to mere irregu-
larity in form of sale under execution; dissenting opinion in Morton v.
Reeds, 6 Mo. 103, majority holding that in all summary proceedings burden
is on party claiming under them. Limited in Allen v. Robinson, 3 Bibb
(Ky.), 328, holding sheriff's deed to be prima facie evidence of regularity
of proceedings; Woods v; Monell, 1 Johns. Ch. 506, holding that proof of
abuse of power must be clear ; Williamson v. Farrow, 1 Bail. 619, 21 Am.
Dec. 499, holding that irregularity must be as to matter of substance.
Validity of sale by sheriff of more land, than necessary. Note, 13
Am. Dec. 213. ' ",
Judicial or sheriff's sale of property in parcels or en masse. Note,
8 Ann. Gas. 741.
Bight of purchaser at tax sale to reimbursement upon failure of title
in absence of statute. Note, 7 Ann. Oas. 920.
Miscellaneous. Cited in Ocala etc. Works v. Lester, 49 Fla. 369, 38
South. 62, when replication filed to plea, defendant must prove facts which
plea suggests; Blight's Heirs v. Tobin, 7 T. B. Mon. 615, 18 Am. Dec. 223,
to point that equity has jurisdiction to revise sales under fieri facias.
4 Cr. 415-421, 2 Ik Ed. 664, HXGOINSON ▼. MEIK.
Oonflscation act of Georgia vested in tlui State the property of all persons
contemplated in the act.
Cited in Thompson v. Carr, 5 N. H. 515, construing like statute of New
Hampshire.
Possession of person claiming under mortgagor is not adverse as regards
mortgagee.
Approved in Herbert v. Hanrick, 16 Ala. 594, following rule ; Brunswick
Terminal Co. v. Nat. Bank, 99 Fed. 637, holding Georgia, and not Mary-
land, statute applies to action in Maryland to enforce stockholders' liability
of Georgia corporation; Byrd v. McDaniel, 33 Ala. 27, holding, however,
that possession of mortgagee after payment due may be sufficiently ad-
313 POLLARD v. DWIGHT. 4 Cr. 421-433
verse to bar mortgagor's equity of redemption, after period of time pre-
scribed in statute for bringing actions generally, has expired; Wbittington
V. Flint, 43 Ark. 515, 51 Am. Rep. 579, following rule; Jefferson etc. R. R.
Co. V. Oyler, 82 Ind. 399, applying principle to possession of land by vendor
after sale; Tripe v. Marcy, 39 N. H. 445, holding mortgagor in possession
to be tenant at will; Bailey v. Jackson, 16 Johns. 214, 8 Am. Dec. 310,
holding, however, that payment of mortgage d^bt may be presumed from
lapse of time, when mortgagor in possession and no interest paid ; Roberts
V. Welch, 8 Ired. Eq. 292, on same i)oint; McCormick v. Hemdon, 86 Wis.
453, 56 N. W. 1098, where principle applied to possession of land by
grantor after sale.
Adverse possession by mortgagor or grantee against mortgagee. Note,
1 L. Rr A. (K. S.) 1037.
' Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Note, 15 L. R. A. (N. S.) 1194.
Presomption of payment ftom lapse of time may be re1)utted.
Approved in Howard v. Hildreth, 18 N. H. 106, where payment of in-
terest proven; so also in Tripe v. Marcy, 39 N. H. 449, Gulick v. Loder,
13 N. J. L. 73, 28 Am. Dec. 714, and Jackson v. Sackett, 7 Wend. 98, on
same point; Summerville v. HoUiday, 1 Watts, 615, as to payment of
legacy; Hazard v. Martin, 2 Vt. 87, where principle applied to pr«>snmp-
tion of regularity in proceedings of administrator arising from lapse of
time; Appleton v. Edson, 8 Vt. 241, as to adverse possession, holding that
presumption is always in favor of legal estate where possession vacant.
Bar of principal debt as bar to foreclosure of mortgage or deed of
trust. Note, 21 L. B. A. 551.
Miscellaneous. Cited in Quinette v. Pullman Co., 229 Fed. 336, decision of
Oklahoma Supreme Court that railroad, because of its noncompliance with
requirements as to appointment of process agent, could not plead limita-
tions, was conclusive on Federal courts in action for injuries sustained in
Oklahoma; Bauserman v. Blunt, 147 U. S. 662, 37 L. Ed. 318, 13 Sup. Ct.
469, and Balkam v. Woodstock Iron Co., 154 U. S. 188, 38 L. Ed. 957, 14
Sup. Ct. 1014, to point that United States Supreme. Court will recognize
construction of statute of limitations of highest court in State where cause
arose ; dissenting opinion in McArthur v. Porter, 1 Ohio, 108, on same point
as to rule of property generally; Floyd v. Harrison, 4 Bibb (Kiy.), 78, but
clearly not in point.
4 Cr. 421-433, 2 I*. Ed. 666, POLLABD ▼. DWIOHT.
« Appearance of defendant In foreign attaclunent waives service of process^
Approved in Matter of Moore, 209 U. S. 502, 14 Ann. Gas. 1164, 52 L. Ed.
909, 28 Sup. Ct. 706, and Anderson v. Morton, 21 App. D. C. 449, both
holding that where defendant enters appearance such act amounts to ac-
ceptance of jurisdiction; State v. Coal etc. Co,, 49 W. Va. 143, 38 S. E.
5^, holding that after general appearance special appearance cannot be
4 Cr. 421-433
NOTES ON U. S. REPORTS.
314
entered to take advantage of defects in process or service thereof; Blair ▼.
Henderson, 49 W. Va. 285, 38 S. E. 554, holding judgment rendered on
defective summons after general appearance is valid; dissenting opinion
in Fisher v. Crowley, 57 W. Va. 329, 50 S.'E. 429, majority holding de-
fendant appearing in court of record to quash defective summons need
not recite that appearance is for that purpose only to avoid waiver; Toland
V. Sprague, 12 Pet. 331, 9 L. Ed. 1105, holding appearance and pleading
to merits waives exemption from foreign attachment; Atkins v. Disin-
tegrating Co., 18 Wall. 298, 21 L. Ed. 843, as to proceeding in admiralty;
St. Louis etc. Ry. Co. v. McBride, 141 U. S. 132, 85 L. Ed. 661, 11 Sup. Ct.
984, holding that appearance waives objection to jurisdiction; Flanders
V. Aetna Ins. Co., 3 Mason, 160, Fed. Cas. 4852, as to general appearance
of corporation; followed in Clarke v. New Jersey etc. Co., 1 Story, 540,
Fed. Cas. 2859, following rule; United States v. Ottman, 1 Hughes, 316,
Fed. Cas. 15,977,, holding further as to effect of imprisonment of defend-
ant; Kelly V. Insurance Co., 3 Hughes, 450, Fed. Cas. 7677, and Kansas
etc. Ry. Co. v. Lumber Co., 37 Fed. 5, holding as to practice on removal;
Romaine v. Insurance Co., 28 Fed. 638, and Piatt v. Manning, 34 Fed. 818,
applying rule where service unauthorized; Southern Express Co. v. Todd,
56 Fed. 107, 12 U. S. App. 351, where defendant exempt from service;
Wabash etc. Ry. Co. v. Brow, 65 Fed. 945, 31 U. S. App. 192, holding that
filing petition for removal without objecting to jurisdiction of State court
constitutes general appearance (but see s. c, 164 U. S. 280, 41 L. Ed. 435,
17 Sup. Ct. 128, infra) ; Central Trust Co. v. Railway Co., 68 Fed. 695,
holding foreign attachment not maintainable in United States courts with-
out personal service or voluntary appearance; The Willamette, 70 Fed.
878, 44 U. S. App. 26, where right of claimant in libel in rem to have action
commenced in district of his residence, held waived by appearance in other
district; L'Engle v. Gates, 74 Fed. 514, under Florida statute; Creagh v.
Equitable Life Assur. Co., 83 Fed. 850, where filing of petition and bond
for removal held waiver of objection to jurisdiction; Wilson v. Pierce, 30
Fed. Cas. 154, as to proceeding in admiralty ; Pearce v. Thackeray, 13 Fla.
577, as to irregularity in sfervice of notice; Baars v. Gordon, 21 Fla. 36,
holding further as to effect of dissolution of attachment where jurisdic-
tioYi acquired by general appearance; Wheeler v. Cobb, 75. N. C. 25, as to
irregularity in service of summons by publication; Bell v. Bell, 3 W. Va.
193, and Bank of Valley v. Bank of Berkeley, 3 W. Va. 391, where de-
fendants not subject to service of process; Mahany v. Kephart, 15 W. Va.
618, as to defective execution of process, and in Shepherd v. Brown, 30
W. Va. 18, 3 S. E. 189, on same point. The rule has been approved in
general discussion in the following cases: Picquet v. Swan, 5 Mason, 571,
Fed. Cas. 11,135; Woolfolk v. Cage, Walk. (Miss.) 301.
Distinguished in Goldey v. Morning News, 156 U. S. 520, 39 L. Ed. 518,
15 Sup. Ct. 560, and Wabash Ry. Co. v. Brow, 164 U. S. 280, 41 L. Ed.
435, 17 Sup. Ct. 128, where special appearance held not to waive objection
to jurisdiction; Picquet v. Swan, 5 Mason, 48, 49, Fed. Cas. 11,134, refus-
ing to enter default against defendant not amenable to process; Steele v.
Harkness, 9 W. Va. 24, holding that where defendant's objection that
\
315 POLLARD V. DWIGHT. 4 Cr. 421-433
cause has not matured for trial has been overruled, he does not, by appear-
ing and pleading, waive such objection.
Jurisdiction of actions, aided by attachment or garnishment, against
resident. Note, 49 L. B. A. (N. fi|.) 549.
IMstrict Judge may alone hold Circuit Court, although there he no Judge
of Supreme Court allotted to circuit.
Approved in Floyd v. Quinn, 24 R. I. 161, 52 Atl. 885, upholding State
judiciary act of 1893 ; In re Kaine, 14 Fed. Cas. 86, following rule ; State
V. Lane, 4 Ired. 460, holding that on death of justice of State Supreme
Court, surviving justices may hold court and exercise all its functions.
Number of judges necessary to transact business of court. Note,
Ann. Cas. 1912A, 1254.
United Siateis courtp wUl he guided by construction given by State to
its own statijbe regulating property rights.
Approved in Yocum v. Parker, 134 Fed. 211, 67 C. C. A. 227, applying
role in construing will under Missouri laws; dissenting opinion in Mc-
Arthur v. Porter, 1 Ohio, 108, holding rule to be applicable in territorial
Supreme Court where decisions of general court of territory are uniform
on the questibn; Vaughan v. Phebe, Mart. & T. 24, 17 Am. Dec. 779, in
general discussion.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removed to. Federal courts.
Note, 40 L. &. A. (N. S.) 394.
Supremacy of State or nation over devolution of property. Note, 17
L. &• A. 87.
Action will lie for breach of covenant of seisin without averment of
onster.
Approved in Le Roy v. Beard, 8 How. 465, 12 L. Ed. 1158, and Wright
Y. Phipps, 90 Fed. 567, holding covenant broken at time of conveyance;
Mitchell V. Warner, 5 Conn. 503, denying right of assignee of covenant of
seisin to recover on covenant.; and in Gale v. Frazier, 4 Dak. 202, 30 N. W.
140, to same effect; Furman v. Elmore, 2 Nott & McC. 195, holding, how-
ever, that covenant of seisin cannot be implied *from general covenant of
warranty, and in Moore v. Lanham, 3 Hill, 304, on same point; but see
Talbot V. Bedford, Cooke, 458, where covenants of warranty and seisin
held to be identical; Brandt v. Foster, 5 Iowa, 295, and Robinson v.
Coulter, 90 Tenn. 707, 26 Am. St. Rep. 709, 18 S. W. 251, and Curtis v.
Brannon, 98 Tenn. 157, 38 S. W. 1073, discussing general subject.
Distinguished in Bird v. Smith, 8 Ark. 372, and Fitzhugh v. Croghan,
2 J. J. Marsh. 438, 19 Am. Dec. 148, holding rule inapplicable to covenant
of warranty.
Covenants of seisin. Note, 125 Am. St. Rep. 446, 448.
When ordinary covenant of seisin or of right to convey is broken if at
all. Note, Ann. Gas. 1913B, 1186.
4 Cr. 434-443 NQTES ON U. S. REPORTS. 318
Eviction as essential to action on warranty of title or seisin. Note,
17 L. B. A. (N. S.) 1188, 1184.
Survey liy State surveyor is presumed to be correct and cannot be im-
peached collaterally. /
Approved in Murphy v. Tanner, 176 Fed. 643, 100 C. C. A. 126, holding
that correctness of United States soi'vey is unassailable by mere homestead
claimant; Cragin v. Powell, 128 U. S. 699, 82 L. Ed. 669, 9 Sup. Ct. 206,
as to survey by surveyor-general of United States.
Miscellaneous. Cited generally as to practice on removal of causes,
in Dinnistoun v. Draper, 5 Blatchf. 339, Fed. Cas. 3804, Ward v. Alex-
ander, 1 Paine, 4l5, Fed. Cas. 17,148, State v. Circuit Judge, 33 Wis. 132,
and Garland v. Davis, 4 How. 164, 11 L. Ed. 918, as instance of practice on
reversal of lower court; Insurance Co. v. Francis, 11 Wall. 216, 20 L. Ed.
78, to point that where corporation's citizenship # not averred no juris-
diction exists.
4 Cr. 434-443, 2 I.. Ed. 670, CBOUDSON T. LEONABD.
Foreign admiralty judgment of court of competent jurisdiction, condemn-
ing vessel for breach of blockade, is conclusive as to that fact in action for
insurance.
Approved in The Kaiser Wilhelm Der Grosse, 175 Fed. 217, holding that
judgment rendered in foreign admiralty court is conclusive evidence of
fact of fault; Cushing v. Laird, 6 Ben. 461, Fed. Cas. 3509, Tompkins v.
Tompkins, 1 Story, 553, Fed. Cas. 14,091, in matter of foreign probate of
will under State laws; Bradstreet v. Insurance Co., 3 Sumn. 606, Fed. Cas.
1793, as to sentence of condemnation in prize court; Blanque v. Peytavin,
4 Mart. (La.) 469, 6 Am. Dec. 706, holding sentence of foreign Court of
Admiralty, conclusive as to national character of vessel ; dissenting opinion
in Owings v. Nicholson, 4 Har. & J. 109/ majority holding sentence of con-
demnation not conclusive of rights of parties in collateral proceeding to
recover sum already paid on debt for security of which vessel was con-
demned ; Barney v. Patterson, 6 Har. & J. 203, holding that judgment of
Circuit Court is not foreign judgment for purpose of proof in State;
Baxter v. Insurance Co., 6 Mass. 299, 4 Am. Dec. 141, under facts similar
to principal case; Farrell iT. City of St. Paul, 62 Minn. 274, 64 Am. St. Rep.
643, 64 N. W. 810, as to decree directing sale of property for nonpayment
of special assessment; United States v. Maxwell etc. Co., 5 N. M. 307, 21
Pac. 156, holding that decree of Circuit Court holding patent valid bars
action by United States in territorial court to set aside such patent;
Cheriot v. Foussat, 3 Binn. 260, holding sentence of foreign prize court
conclusive as to legality of seizure ; dissenting opinion in Pinson v. Ivey, 1
Yerg. 350, majority holding condemnation of land by commissioners not to
be conclusive as to title; Williams v. Saunders, 5 Cold. 77, as to judg-
ment of Probate Court ; Brown v. Brown, 86 Tenn. 319, 7 S. W. 647, hold-
ing further as to who are parties; Tilson v. Davis' Admr., 32 Gratt..l04,
holding former adjudication in action by creditors estops action for equita-
ble relief by one who was party to original action.
317 U. S. V. THE BETSEY AND CHARLOTTE. 4 Cr. 443-452
Didtinguishtid in The Mary, 9 Cr. 142, 145, 8 L. Ed. 684, 685, holding
judgment against one defendant by default does not preclude other defend-
ant from contesting admission of party in default.
Limited in Hilton v. Guyot, 159 U. S. 167, 182, 40 L. Ed. 109, 116, 16
Sup. Ct.'145, 151, holding foreign judgment for sum of money to be prima
facie evidence only of merits of suit ; dissenting opinion in Fisher v. Field-
ing, 67 Conn. 128, 34 Atl. 723, majority holding judgment on pecuniary
diBmand conclusive as to merits ; Melhop v. Doane, 31 Iowa, 401, 7 Am. Rep.
150, holding unsatisfied judgment of another State, rendered in action in
rem of which defendant had no notice, is of nor force as judgment in per-
sonam; Pelton v. Platner, 13 Ohio, 217, 42 Am. Dec. 199, as to judgment
in personam. ^
Criticised in Graning v. Insurance Co., 1 Nott & McC. 540, as applied
to sentences of admircUty courts.
Denied in New York etc. Ins. Co. v. De Wolf, 2 Cow. 70, and Ocean
Ins. Co. V. Francis, 2 Wend. 68, 19 Am. Dec. 558, holding sentence of con-
demnation in admiralty court to be prima facie evidence only of facts.
Judgments in rem and their eifect as res adjudicata. Note, 75 Am.
Conclusiveness of judgment of foreign country. Note, 20 L. R. A. 669.
Condus^l^l^ss of judgment in rem. Note, 11 R R. 0. 45, 46.
. Any person liaving Interest in. property may interpose, claim, or appeal
ftom sentence In prize ca«e.
Cited in Cnshing v. Laird, 107 U. S. 79, 27 L. Ed. 396, 2 Sup. Ct. 204,
Beach v. Workman, 20 N. H. 383, arguendo. ,
Pcflicies of marine insurance are maritime contracts..
Cited in De Lovis v. Boit, 2 Gall. 475, Fed. Cas. 3776, sustaining admir-
alty jurisdiction.
Law governing validity of transfer of property. Note, 5 £. B. 0. 929.
MiscelTaneous. Cited in The Parkhill, 18 Fed. Cas. 1192^ as to juris-.
diction and composition of admiralty courts generally.
4 Or. 443-A52, 2 L. Ed. 673, UNITED STATES V. THE BETSEY AND
(mAELOTTE.
Admiralty Jurisdiction extends to all seizures made on waters navigable
from sea by vessels of ten or more tons burden.
Approved in Four Hundred and Forty-Three Cans of Frozen Egg Pro-
duct V. United States, 226 U. S. 180, 57 L. Ed. 178, 33 Sup. Ct. 50, holding
action of District Court in proceedings for seizure of goods under pure
food act can only be reviewed on writ of error; Maben v. Rosser, 24 Okl.
594, 103 Pac. 676, interpreting word ** including'*; Whelan v. United
States, 7 Cr. 112, 3 L. Ed. 286, denying trial by jury; The Sarah, 8 Wheat.
394, 5 L. Ed. 644, distinguishing between common law and admiralty juris-
diction of District Courts; New Jersey etc. Co. v. Bank, 6 How. 388, 12
Ij. Ed. 484, as to seizure for violation of navigation laws; The Belfast, 7
4 Cr. 469-508 NOTES ON U. S. REPORTS. 318
Wall. 638, 19 L. Ed. 270, as to maritime liens; The Eagle, 8 Wall. 26>
19 L. Ed. 370, sustaining jurisdiction of admiralty over cases of collision
on great lakes ; United States v. Winchester^ 99 IT. S. 374, 25 L. Ed. 480,
distinguishing between admiralty and common-law jurisdiction of District
Courts;. United States v. Athens Armory, 2 Abb. (U. S.) 138, Fed. Cas.
14,473, 35 Ga. 352, on same point; The Lewellen, 4 Biss. 160, Fed. Cas.
8307, as to seizure under navigation laws; The Wave, Blatchf. & H. 240,
Fed. Cas. 17,297, sustaining jurisdiction over suits for pilotage; United
States V. The Reindeer, 2 Cliff. 69, Fed. Cas. 16,144, as to seizure for viola-
tion of acts prohibiting slave trade; Anonymous, 1 Gall. 24, 25, Fed. Cas.
444, holding further that information in rem is civil proceeding; De Lovio
v. Boit, 2 Gall. ^74, Fed. Cas. 3776, as to jurisdiction over maritime con-
tracts; Roberts v. Skolfield, 3 Ware, 187, Fed. Cas. 11,917, as to jurisdic-
tion over torts; The Meteor, 17 Fed. Cas. 180, as to seizure for violation
of neutrality laws, and in United States v. Arms and Ammunitions, 24
Fed. Cas. 863, on same point.
Criticised in dissenting opinion in Waring v. Clarke, 5 How. 485, 486,
12 L. Ed. 247, majority sustaining jurisdiction over torts committed within
those limits; dissenting opinion in Jackson v. The Magnolia, 20 How. 334,
15 L. Ed. 926, and in People v. Tyler, 7 Mich. 274, den3ring constitutionality
of acts of Congress extending admiralty jurisdiction to great lakes.
Distinguished in Slocum v. Wheeler, 1 Conn. 445, holding jurisdiction
not to extend to seizures made on land.
#
Meaning of term ^'including.'' Note, Ann. Oas. 1912D, 687.
4 Cr. 469-508, 2 L. Ed. 684, APPENDIX B, IN BE BUBB.
Question of constmctive presence of accused in conq^aey cases, dis-
cussed.
Cited in Tillinghast v. Richards, 225 Fed. 232, holding that doctrine of
constructive presence should not he stretched to remote acts; State v.
Whitman, 103 Minn. 95, 14 Ann. Oas. 809, 114 N. W. 364, upholding in-
dictment charging defendant with committing felony, where it was shown
on trial that he was not physically present at commission but only pro-
cured it.
Every opinion, to be correctly understood, ougbt to be considered with a
view to case In which it was delivered.
Cited in Douglas County v. Vinsonhaler, 82 Neb. 818, 118 N. W. 1063,
arguendo.
NOTES
ONTHB
UNITED STATES REPORTS-
V CEANCH.
6 Cr. 1-11, 8 L. Ed. 19, ALSXANDEB ▼. MATOB ETO. OF AIiEXANBBIiL
Moaning of don1>tfiil pluase in statute may be establlahed by a subsequent
dauae or statute.
Approved in New York etc. Ry. Co. v. Peninsula Produce Exchange,
240 U. S. 40, 60 L. Ed. 515, 36 Sup. Ct. 232, construing amendment of
1906, to act of 1887, making initial carrier liable to holder of bill of lading
for loss or damage; United States v. Baltimore etc. R. Co., 159 Fed. 37^
86 C. C. A. 223, under act of 1906, requiring carriers of livestock to unload
for food and rest every twenty-four hours, penalty therein provided is
recoverable for each of several shipments on same train; Hutchens v.
Covert, 39 Ind. App. 388, 78 N. E. 1062, construing act of 1903, relating
to pensions to families of policemen killed while in line of duty; Chamber-
lain V. Iowa Tel. Co., 119 Iowa,' 627, 93 N. W. 599, holding under Code
1873, § 1324, as amended, telephone company may occupy city streets with
its poles and lines without city's consent; United States v. Morton, 65 Fed.
210, 24 U. S. App. 531, adopting the construction /lanctioned by a subse-
quent act where first statute was ambiguous; Saltonstall v. Birtwell, 66
Ffed. 975, 33 U. S. App. 52, construing words ''payment under protest"
in custom law; Supervisors v. Ehlers, 45 Wis. 295, construing statute
providing for liability of official bondsmen; dissenting opinion in Hasel-
tine V. Hewitt, 61 Wis. 139, 20 N. W. 684, majority held second act
unconstitutional.
Bepresentation in preamble that town Is laid off in half -acre lots imma-
terial, if enacting clause comprehends lots within its limits not so subdivided.
Cited in Weatherhead v. Bledsoe, 2 Overt. 355, holding words in statute
of limitation not restrained by preamble.
6 Cr. 11-13, 3 L. Ed. 22, HENDEBSON ▼. MOOBE.
Beceipt in fall upon part payment is presumptive evidence of pajanent
in, full and will support such a plea.
Approved in Frye v. Hubbell, 74 N. H. 363, 17 L. B. A. (N. S.) 1197,
68 AtL 327, following rule; Blanchard v. Noyes, 3 N. H. 519| holding agree-
(319)
/
6 Cr. 11-13 NOTES ON U. S. REPORTS. 320
ment to accept a less sum in satisfaction may be left to the jury as evi-
dence that the rest has been paid; Reid v. Reid, 2 Dev. 250, 18 Am. Dec.
572, holding a receipt for specific sum stated to be in full is prima facie
evidence of a settlement; Chesnut v. Strong, 1 Hill Eq. 128, holding cred-
itor bound by receipt in full, though it afterward turn out he was entitled
t« more; Trimmier v. Thomson, 10. S. C. 190, holding receipt for a smaller
sum expressed to be in full is presumed true; Steele v. Atkinson, 14 S. C.
161, 37 Am. |top. 731, holding such a receipt by sheriff a satisfaction of
the execution.
Distinguished in Howe v. Mackey, 5 Pick. 48, holding that to maintain
plea of payment one must prove thing received was of full value of debt,
or w%s received as such ; Seely v. Spencer, 3 .Vt. 335, holding a^eement of
creditor to discharge several -debtors from whom he received part did not
relieve others from liability.
Accord and satisfaction. Note, 100 Am. St. Rep. 480.
BefiiMtl of court below to grant new trial is not error.
Approved in Yarber v. Chicago etc. Ry. Co., 235 111. 599, 85 N. E. 932,
and Board of Commrs. v. Keene Five-Cents Sav. Bank, 108 Fed. 516, both
^ following; Smith v. United States, 231 Fed. 32, refusing to disturb order
denying motion for new trial where court below had received and consid-
ered all proper testimony; Duke v. St. Louis etc. R. Co., 172 Fed. 686,
applying rule where discretion referred to is legal and not arbitrary;
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, question as to new trial not review-
able; Kelly v. Moore (2), 22 App. D. C. 29, upholding rule where court
gave full consideration to alleged acts of misconduct on part of jury, and
found they were not sustained; Walden v. Craig, 9 Wheat. 578, 6 L. Ed.
164, holding writ of error will not lie to the refusal to grant an amend-
ment to the declaration;^ Wright v. Hollingsworth, 1 Pet. 169, 7 L. Ed.
98, holding allowance of amendment to declaration is not error; Pomeroy
V. Bank, 1 Wall. 598, 17 L. Ed. 640, holding overruling a motion for a n^w
trial is not proper subject of a bill of exceptions; Ewing v. Howard, 7
Wall. 502, 19 L. Ed. 295, and Insurance Co. v. Barton, 13 Wall. 604, 20
L. Ed. 709, refusing to consider overruled motion for new trial, or one in
arrest of judgment; likewise in Indianapolis R. R. Co. v. Horst, 93 U. S.
301, 23 L. Ed. 901, Jones v. Buckell, 104 U. S. 555, 26 L. Ed. 841, Edge etc.
v. Fields, 58 Fed. 173, 8 U. S. App. 449, and Walton v. Railroad Co., 56
Fed. 1008, 12 U. S. App. 511 , Earnshaw v. United States, 146 U. S. 68, .36
L. Ed. 889, 13 Sup. Ct. 15, holding action of appraisers, not abusing their
discretion, is final ; Texas etc. Ry. Co. v. Nelson, 50 Fed. 816 , 2 U. S. App.
213, holding application for a continuance rests within the discretion of
the Circuit Court without regard to the practice of State courts; White
V. Church, 5 Conn. 189, following rule; State v. Hunt, 4 La. Ann. 439,
holding no appeal lies from order of judge of the first instance overruling
an application for a new trial in a criminal case; State v. Brette, 6 La.
Ann. 660, holding Supreme Court can only determine questions of law sub-
321 COOKE V. WpODROW. 6 Cr. 13-15
mitted by bill of exceptions ; Dibble v. Rogers, 2 Mich. 407, holding decision
granting new trial cannot be reviewed; likewise in Romaine v, Korris, 8
N. J. L. 82, as to refusal to hear motion for nonsuit after regular time;
McCourry v. Doremus, 10 N. J. ]^ 249, as to refusal to continue a cause;
Crawford v. Railroad Co., 28 N. J. L. 482, as to amending of pleadings;
Coleman v. Bell, 3 N. M. 497, s. c, 4 N. M. 47, 12 Pac. 668, and Law v.
Merrills, 6 Wend. 278, as to motion for new trial ; and Richards v. Wheeler,
2 Aikens, 369, as to rejection of a report of auditors; Ringgold's Case,
1 Bland Ch. 9, discussii^ right of appeal ; approvingly Taylor v. Carpen-
ter, 2 Wood. & M. 3, Fed. Cas^ 13,785. And see 1 Blackf. (Ind.) 22.
Distinguished in Dwyer v. United States, 170 Fed. 165, 95 C. C. A. 416,
where court excluded affidavits and exercised no discretion as to matters
stated therein, action of court is preserved by exception for review by
appellate court; Jones v. Van Zandt, 5 How. 224, 12 L. Ed. 126, enter-
taining the cause since division of opinion did not embrace things urged
merely as reasons for a new trial; United States v. Chicago, 7 How. 191,
12 L. Ed. 663, entertaining a certified question involving right of the mat-
ter whether subject on hearing was one of discretion or not; .Span*ew v.
Strong, 3 Wall. 105, 18 L. Ed. 50, where jud^ent did not purport to
affirm an order overruling a motion for a new trial, but to affirm judgment
of District Court in theNaction of ejectment; Mattox v. United States, 146
U. S. 147, 36 L. Ed. 920, 13 Sup. Ct. 52, holding the question of admissi-
bility of affidavits offered in support of motion for a new trial may be
brought up on writ of error, when lower court, in passing upon motion,
exercised no discretion in respect to- matter in affidavits.
Denied in Sorrel v. St. Julien, 4 Mart. (0. S.) 509, holding denial of a
new trial may he relieved in Supreme Court; Gilliland v. Rappleyea, 15
N". J. L. 143, holding court having set aside verdict and ordered a new
trial, it was error to revive verdiot and render judgment thereon at a sub-
sequent term; Fowler v. Colton, 1 Pinn. 340, and Territory v. Doty, 1 Pinn.
404, holding, und^r statute, Supreme Court has cognizance of questions
of law arising upon motions for a new trial.
5 Cz. 1^15, 3 Xi. EO. 22, COOKE v. WOODROW.
Best evidonoe wUcli nature of case admits of must be produced.
Approved. in Fresh v. Gilson, 16 Pet, 332, 10 L. Ed. 934, rejecting evi-
dence by one witness of testimony of another at a previous trial.
If, after due diligence, suhscrihing witness cannot be found, hiS hand-
writing may be proved.
Approved in Stebbins v. Duncan, 108 U. S. 44, 27 L. Ed. 646, 2 Sup. Ct.
321, and McVicker v. Conkle, 96 Ga. 586, 24 S. E. 24, allowing proof of
handwriting where witness to deed was dead ; Bennet v. Robinson, 3 Stew.
6 P. 238, holding evidence of the subscribing witness is the only admissi-
ble evidence, unless he cannot be found or becomes legally incompetent;
Ingram v. Plasket, 3 Blackf. 454, holding evidence of handwriting of
obligor to bond admissible, before plaintiff had produced evidence that
handwriting of subscribing witnesses could not be proved; Kemper v.
1—21
6 Cr. 15^19 NOTES ON U. S. REPORTS. 322
Pryor, 1 J. J. Marsh. 599, admitting proof of handwriting where witness
could not be found; Whittemore v. Brooks, 1 Me. 60, rejecting evidence
of handwriting, where there was no proof of diligent search after the
other subscribing witness; Famswdrth v. Briggs, 6 N. H. 564, holding
where attesting witness cannot be produced, his handwriting may be
proved; as also in Dunbar v. Marden, 13 N. H. 316, where witness was
without jurisdiction of court; Patterson v. Tucker, 9 N. J. L. 332, 333,
17 Am. Dec. 476, 477, where witness denied his handwriting.
Distinguished in Wilbur v. Selden, 6 Cow. 165, refusing to admit entries
by notary's clerk in register, though latter waa without jurisdiction of
court
Necessity for calling subscribing witnesses to prove attested instru-
ments. Note, '35 L. B. A. 323.
In trover, if Judgment is for plaintiff, it determines value of matter in
dUvate, but if for defendant declaration fixes it.
Approved in Livinski v. Middlesex Bank. Co., 92 Fed. 458, holding sus-
tention of demurrer t6 items so as to reduce amount below jurisdictional
amount does not deprive Federal court of jurisdiction; Phoenix Wholesale
Meat Co. v. Moss, 7 Ariz. 276, 64 Pac. 443, applying rule to appeal in suit
for compensation for meat inspection; Walker v; United States, 4 Wall.
164, 18 L. Ed. 319, dismissing writ of error; Batchelder v. Richardson, 75
Va. 837, holding if actual amount in dispute does not otherwise appear,
the court will look to the whole record; McCrowell v. Burson, 79 Va. 300,
holding amount in declaration governed jurisdiction where judgment waa
for defendant; Ringgold's Case, 1 Bland Ch. 24, discussing in what cases
and to what amount appeal bond may be required; Greigg v. Reade,
Crabbe, 66, Fed. Cas. 5804, arguendo; Hilton v. Dickinson, 108 U. S. 169,
174, 27 L. Ed. 689, 691, 2 Sup. Ct. 427, 430, discussing appeal not justified
by the amount in dispute.
Distinguished in Peyton v. Robertson, 9 Wheat. 528, 6 L. Ed. 151, hold-
ing in iieplevin for property distrained for rent, the amount for which
avowry is made is the real matter in dispute; Gk>rdon v. Ogden, 3 Pet.
34, 7 L. Ed. 592, holding if writ of error be brought by defendant, matter
in dispute cannot exceed amount of that judgment dismissing writ.
Jurisdiction as to values, how determined. Note, 21 Am. StJ Rep. 619.
5 Or. 16-19, 8 L. Ed. 23, MANDEVILLE ▼. WIL80K.
Exceptions in favor of merchant's accounts extends to all accounts cnxrent
which concern the trade of merchandise between merchants.
Cited in Spring v. Gray, 6 Pet. 167, 8 L. Ed. 358, holding charter-party
is not an account within the exception; Spring v. Gray, 5 Mason, 524, 527,
Fed. Cas. 13,259, holding same; McCulloch v. Judd, 20 Ala. 708, holding
an account containing several items of debit for goods bought and one
item of credit for cash paid is not within the exception; Bradford v. Spy-
ker, 32 Ala. 143, holding where there are mutual accounts between persons,
the statute does not bar if one item is within the period; as also in Gonn
323 MANDEVIliLE v. WILSON. 6 Cr. 16-19
V. Gunny 74 Ga. 568, 58 Am. Rep. 456; Brackenridge v. Balteell, 1 Ind.
334, holding ''running accounts'^ means mutual accouilt, and when be-
tween merchants is without ^e statute; Lansdale v. Brashear, 3 T. B.
Mon. 334, holding partners in forming are not merchants so their accounts
are not within the exception; Dyatt v. Letcher, 6 J. J. Marsh, 644, 545,
and McLellan v. Crofton, 6 Me. 344, holding the account within the ex-
ception; Union Bank v. Knapp, 3 Pick. 112, 15 Am. Dec. 189, holding an
account which has been balanced is not within the exception; Murray v.
Coster, 20 Johns. 597, holding where one joint purchaser takes all the
goods, and agrees to account to the other for his share, this is not within
the exception; Jayne v. Mickey, 55 Pa. St. 262, where merchant furnished n
goods ''to be sold on agency and to be accounted for,'' etc., held this was
within the exception; Watson v. Lyle, 4 Leigh (Va.), 249, holding demand
barred. Cited in general discussion iirBass v. Bass, 6 Pick. 363, State v.
School District, 30 Neb. 623, 27 Am. St. Bep. 422, 46 N. W. 613, Van Rhyn
V. Vincent, 1 McCord 's Eq. 315, and Blair v. Drev, 6 N. H. 238.
Distinguished in Lowe v. Dowbam, 26 Tex. 510, holding, under their
statute, mutual accounts not between merchants are barred.
Account cnnent does not become accoimt stated by cessatton of dealings
bttwacn the pearttee.
Approved in Stewart v. St. Louis ete. Ry. Co., 157 Mo. App. 241, 137
S. W. 51, applying rule where on presentation of aecount the party to be
charged denied balance was due and owing ; McMahon v. Brown, 219 Mass.
27, 106 N. E. 678, where balance had been struck against partner and
amount charged off to profit and loss and not carried over to next year,
the account still remained open for adjustment; White v. Campbell, 25
Mich. 469, holding presentation of account to party, who remains passive,
will not convert it into an account stated ; Volkening v. De Graaf , 81 N. T.
271, and Whittlesey v. SpojQ^ord, 47 Tex. 18, holding to maintain action on
account stated, it must be shown account was closed with assent of plain-
tiff; Coalter v. Coalter, I.Bob. (Va.) 85, 92, holding statute is no bar where
there has been cessation of dealings.
What constitutes account stated. Note, 27 L. E. A. 825.
Allowance \>r rejection of amendments to pleadings is not subject to review
on appeal.
Approved in Hartley v. Lapidus & Holub Co., 216 Fed. 96, 132 C. C. A.
336, upholding refusal of court to .permit filing of reply after trial was-
commenced; Moss v. Riddle, 5 Cr. 358, 3 L. Ed. 125, following rule; Cook
V. Burnley, 11 Wall. 676, 20 L. Ed. ^6, holding application to supply a lost
record not reviewable; Chapman v. Barney, 129 U. S. 68l, 32 L. Ed. 801,
9 Sup. Ct. 427, as t9 an amendment substituting a plaintiff; Gormley v.
Bunyan, 138 U. S. 630, 34 L. Ed. 1089, 11 Sup. Ct. 455, as to granting or
refusal of leave to file an additional plea; Heye v. Lieman, 12 Fed. Cas. 90,
declaring allowance of amendments rests in the discretion of the court;
Poole V. Nixon, 9 Pet. Appx. 770, 19 Fed. Cas. 995, holding granting or
refusal of leave to amend pleadings not reviewable; Watkins v. Oayle, 4
/
6 €r, 19-21 NC^TES ON U. S. REPORTS. 324
/
Ala. 155, holding on application b}"^ officer to correct his return of process,
decision of primary court is conclusive ; Nicks v. Rector, 4 Ark. 277, hold-
ing courts permitting exhibit to be proven ViVa voce not reviewable ; Fuller
V. Hampton, 5 Conn. 425; Merriam v. Langdon, 10 Conn. 472; Henderson
V. Hame*, 5 How. (Miss.) 538, and Austin Vi' Jordan, 5 Tex. 133, holding
allowance or disallowance of amendment to pleadings not a ground of
error; Stewart v. Bennett, 1 Fla. 443, declining to revise judgment on
ground that court erred in allowing amendments; Brett v. Ming, 1 Fla.
452, holding appellate court may amend error apparent on record; Romainc
V. Norris, 8 N. J. L. 82, holding whether motion for nonsuit shall be
heard after regular rests in discretion of the court; State v. Raiford, 2
Dev. 215, holding decision of court below on plea of nul tiel record is
conclusive ; Fowler v. Colton, 1 Pinn. 337, holding refusal of court to allow
a notice to be amended is not errorf
I Distinguished in Broussard v. Trahan, 4 Mart. (O. S.) 504, holding where
court below improperly denies a continuance, relief may be had in Supreme
Court; Avery v. Bowman, 39 N. H. 395, 397, holding refusal to g^ant
amendment, because court has no power to grant it, is error in law, and
may be corrected upon exceptions.
Miscellaneous. Cited in Van Bokkelen v. Cook, 5 Sawy. 593, Fed. tJaa.
16y831, to point that declaration need not set forth thq facts which take
case out of statute.
5 Or. 19-21, S la. Ed. 24, FAIBPAZ ▼. FAIRFAX.
Upon issue of plene admlnlBtravit, verdict should be for amount of assets
nnadininistered.
Approved in Sizlar v. HayWood, 8 Wheat. 679, 5 L. Ed. 714, following
rule; Edmonds v. Crenshaw, 14 Pet. 169, 10 L. Ed. 404, holding executor,
though responsible only for assets received, cannot discharge himself by
paying over these to his coexecutor; Smith v. Chapman, 93 U.^S. 43, 23
Lw Ed. 796, holding in action against executor upon contract of testator,
where a devastavit is alleged and proved, a judgment de bonis propriis is ^
erroneous; Thomson v, Searcy, 6 Port. 413, declaring 'sureties liable for
amount of assets which came into the hands of the administrator; Moody
V. Keener, 7 Port. 234, setting aside verdict because it did not respond to
the issue; King v. Anthony, 2 Blackf. (Ind.) 132, Johnson v. Hawkins, 2
Blackf. (Ind.) 461, and Porter v, Glenn, 3 Bibb (Ky.), 86, holding upon
issue of plene administravit jury should also find amount of assets in
defendant's hands unadministered ; as also in Young v. Whitaker, 1 A. K.
Marsh. 399, McKinley v. McCall, 1 T. B. Mon. 57, Young v. Wickliife, 17
Dana (Ky.), 448, and Nixon v. Bullock, 9 Yerg. 416, holding verdict insuffi-
cient; Bishop v. Hamilton, 4 J. J. March. 549, holding precise amount of
assels need not be found when verdict ascertains that assets are sufficient.
Distinguished in Thrash v. Sumwalt, 5 Ala. 16, holding on issue of plene
administravit verdict general in its terms is suf&cient.
What special verdict must contain. Note, 24 L. B. A. (N. 8.) 6,
N
325 McKEEN v. DELAJSTCT* 6 Cr. 22-34
Citation upon ^irit of error ii properly served upon hiuband of defendant
marrying after Judgment.
Cited in Tripp v. Railroad Co., 144 U. S. 129, 26 L.'Ed. 372, 12 Sup. Ct.
656, holding mailing citation to defendant's attorney insufficient service;
United States M. A. A. v. Weller, 30 Fla. 218, 11 South. 788, holding writ
of error, duly served, not abated by marriage of female defendant after
judgment.
Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. B. A. 846.
5 Cs. 22-34, 3 L. Ed. 25, McKEEK V. DEI*ANCT.
Practical constmction of a statute acquiesced in for a long time controls.
Approved in Chicago etc. Ry. Co. v. Dodson, 26 Okl. 829, 107 Pac. 924,
appl3ang rule to words and phrases employed in a tariff approved by the
interstate commerce commission; United States v. Arredondo,€ Pet. 715,
8 L. Ed. 556, holding courts are bound to notice general customs and usages
«as the law of the land; Schell v. Fauche, 138 U. S. 572, 34 L. Ed. 1043, 11
Sup. Ct 380, holding that in cases of ambiguity contemporaneous con-
struction by courts and officials is controlling; United States v. Ship
Recorder, 1 Blatchf . 223, Fed. Cas. 16,129, holding contemporaneous con-
struction of act corrol>orated by years of usage must govern; Talcott v.
Pine Grove, 1 Flipp. 156, Fed. Cas. 13,735,' holding contracts' based upon
State law uhiversally and continuously treated as valid will be supported
by Federal courts notwithstanding late State decisions to contrary; dis-
senting opinion in Northern Pac. R. R. Co. v. Barden, 46 Fed. 623) con-
struing grants by Congress to railroads; Panaud v. Jones, 1 Cal. 499, re-
fusing to set aside verdict because evidence of custom ' was received ^
Hoghea v. Lane, H 111. 131, 50 Am. Dec. 440, construing statute providing
for acknowledgment of deed by married woman; State v. Harrison, 116
Ind. 308, 19 N. E. 149, construing doubtful statute, according to practice
and usage; Harriman v. @tate, 2 G. Greene, 275, in case of doubt, long
practice under a statute favors its validity; Clark v. Mowyer, 5 Mich. 468,
following practical construction of statute; Westbrook v. Miller, 56 Mich.
152, 22 N. W. 257, as to statute providing for signing of tax deed; Frank-
lin V. Kelley, 2 Neb. 87, holding conveyance by pre-emptor before issuance
of patent valid; State v. Grey, 21 Nev. 389, 32 Pac. 194, construing Con-
stitution as to publication of proposed amendments; Den v. Geiger, 9
N. J. L. 231, holding a certified acknowledgment of a deed valid, if it shows
a substantial compliance with statute; Shinn v. Roberts, 20 N. J. L. 450,
holding order of sale made by Orphans' Court vfelid; Jackson v. 6umaer,
2 Cow. 567, holding certificate of acknowledgment in usual form sufficient;
Meriam v. Harsen, 2 Barb. Ch. 270, certificate of acknowledgment sub-
stantially complying with the statute sufficient; Bank v. Mersereau, 3
Barb. Ch. 577, 49 Am. Dec. 205, holding deed in customary form sufficient;
Moore v. Vance, 1 Ohio, 12, holding deed without subscribing witnesses
valid ; Chestnut v. Shane, 16 Ohio, 603, 47 Am. Dec. 390, holding if con-
struction is doubtful usage ilrill control; McFerren v« PowerB| 1 Serg. A R.
5 Cr. 22-34 NOTES ON U. S. REPORTS. 326
106) holding acknowledgment of deed before associate judge of a county
other than t!iat in which land lay, valid; Harrington v. Smith, 28 Wis.
68, and State v. Timme, 54 Wis. 340, 11 N. W. 793^ declaring that great
weight is to be given to the practical construction of a statute by officials;
Reals V. Hale, 4 How. 51, 11 L. Ed. 870, applying rule to recording acts;
McCall V. Hinkley, 4 Gill, 160, and dissenting opinion in McArthur v. Porter,
1 Ohio, 108, arguendo.
Distinguished in Love v. Hinckley, Abb. Adm. 441, Fed. Cas. 8548, hold-
ing proof did not establish the custom; O'Donnell v. Glenn, 9 Mont. 461,
463, 23 Pac. 1019, 1020, that the use of erroneous form of verification of
location notice was not generally enough to make it sufficient; Cuming
Co. V. Tate, 10 Neb. 196, 4 N. W. 1047, where there was no evidence of
deviation or universality of a custom; Gray v. Askew, 3 Ohio, 479, 'refus-
ing to follow a practice neither old nor general.
Effect given by courts to contemporaneous practical cohstruction of
miaihbig^ous statute. Note, 10 Ann. Oaa. 52.
Federal conrtg follow State conrts' constrttttion of State statutes. »
Approved in Reed v. Munn, 148 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; State
V. Board of School Commrs., 183 'Ala. 575, 63 Soutn. 82, upholding action
of school board in leasing sixteenth section lands though /statute requires
sale or lease shall be made with eonsent of inhabitants; Townsend v.
Meneley, 37 Ind. App. 137, 74 N. E. 277, decision by United State Circuit
Court on question of inheritance by illegitimates, rendered before State
Supreme Court had construed the statute, will not be followed; Mullen
v. Glass, 43 Okl. 552,. 143 Pac. 680, and Ma Harry v. Eatman, 29 Okl. 54,
116 Pac. 938, both upholding authority of United States District Court
to appoint a guardiap either at domicile of ward or where his land is
located; Dewalt v. Cline, 35 Okl. 204, 128 Pac. 124, upholding practice of
County Court after acquiring jurisdiction of person and estate of minor
to order sale of land of minor in another county; Jackson v. Chew, 12
Wheat. 168, 6 L. £d. 167, adopting local law of real property as ascer-
tained by d<ecisions of State courts; Green v. Neal, 6 Pet. 296, 8 L. Ed.
404, applying rule to statute* of limitations; Webster v. Cooper, 14 How.
504, 14 L. £d. 517, following State court exposition of State Constitution ;
Supervisors v. United States, 18 Wall. 82, 21 L. Ed. 776, applying rule to
tax law; McArthur v. Scott, 113 U. S. 391, 28 L. Ed. 1031, 5 Sup. Ct.
667, as to statute providing for probate of will; Thompson v. Phillips,
Bald. 284; Fed. Cas. 13,974, law limiting lien of judgments; Merrill v.
Portland, 4 Cliff. 144, Fed. Cas. 9470, as to statute prescribing conditions
annexed to the right to recover for injury received in consequence of de-
fect in highway; Bowditch v. Boston, 4 Cliff. 341, Fed. Cas. 1719, as to
statute rendering city liable for property destroyed to stop a fire; In re
Wylie, 2 Hughes, 460, Fed. Cas. 18,112, as to ''State exemption laws";.
GriflBng v. Gibb, 1 McAlL 222, Fed. Cas. 5819, construing legislative
grants; Mitchell v. Lippincott, 2 Woods, 472, Fed. Cas. 9665, as to ''mar-
327 TUCKER, V. OXLEY. 6 Cr. 34-46
ried woman's law"; State v. Railway Co., 3 Fed. 888, statute proyiding
for removal of criminal case; Lookout etc. R. R. Go. v. Houston, 44 Fed.
450, holding decision of State court on demurrer is binding on Federal
eoort to which case has been removed : Prentice v. Zane, 19 Fod. Cas. 1272,
following State courts' construction of negotiable paper Ir^w; Bloodgood
V. Grasey, 31 Ala. 589, following foreign States' construction of its own
statutes; Youley v. Lavender, 27 Ark. 264, holding Federal courts will fol-
low State statute limiting rights of creditor in probate matters; McClure
V. Owen, 26 Iowa, 253, holding Federal courts will follow latest adjudi-
cations of State courts construing States statutes; Levy v. Mentz, 23 La.
Ann. 262, holdi^ that Federal courts will follow State courts' interpreta-
tion of State laws, respecting titles; Craig v. Fox, 16 Ohio, 569, refusing
to alter construction of statute sanctioned by many decisions; Smith v.
Power, 23 Tex. 33, holding decisions of this court, construing local statutes
affecting titles to real property, are binding on all courts; Derby v.
Jacques, 1 Cliff. 439, Fed. Cas. 3817, holding Federal courts follow State
practice in law cases.
Distinguished in Burgess v. Seligman, 107 U. S. 34, 27 L. Ed. 865, 2 Sup.
Ct. 22, refusing to follow decision of State court rendered after Circuit
Court had construed State statute; Ryan v. Staples, 76 Fed. 727, 40 U. S.
App. 427, holding Federal courts not bound by single decision of State
court applying principles of common law to question as to validity of
judgment, where rights of party became vested before decision was made;
Blanchard v. Sprague, 1 Cliff. 290, Fed. Cas. 1516, holding that in equity
cases State laws do not furnish rules of evidence to Federal courts.
Questions of State law as to which State court decisions mi;st be
followed in actions originating in, or removed to, Federal courts.
Note, 40 L. B. A. (K. S.) 415.
If land in two counties be conveyed by one deed, it need be recorded
only in one county.
Cited in Wilt v. Cutler, 38 Mich. 194, holding deed covering land in dif-
ferent counties is properly recorded in any one of them; Leazure v. Hille-
gas, 7 Serg. & R. 318, holding an exemplification certified by the recorder
of a county of a deed conveying lands in that and in another county is
evidence in dispute concerning the latter; Hancock v. Lumber Co., 65 Tex.
233, holding valid registration of deed in one county establishes prima
facie its execution everywhere; Bcals v. Hale, 4 How. 54, 11 L. Ed. 873,
arguendo.
Distinguished in Penn v. Preston, 2 Rawle, 18, holding the covenant
on part of grantor to procure recording of a power is not fulfilled in rela-
tion to lands in one county by recording it in another.
Admissibility of record, or copy of record, to prove deed under which
party offering it claims. Note, 19 L. R. A. (N. 8.) 440.
6 Or. 34-45, 3 L. Ed. 29, TUCKEB ▼. OXLET.
A Joint debt under bankrupt Itbw may be set off against separate daim of
amrignee of one of partners.
\
5 Cr. 34-45 NOTES ON U. S. REPORTS. 328
. Approved in Cromwell v. Parsons, 219 Mass. 301, 106 N. E. 1021, re-
affirming rule ; Hooka v. Gila Valley Bank & Trust Co., l2 Ariz. 317, 100
Pac. 807, where firm note to a bank was assumed by insolvent partner, on
dissolution of partnership it became his individual debt and could be set
off against amount due him from bank; Darby v. Freedman's Savings etc.
Co., 3 McAr. (D. C.) 358, where husband and wife executed trust deed
to secure note of husband to trust company, which became involved, hav-
ing in its hands cash deposit of wife, claim of wife can be set off against
that of trust company; Mead v. Bank, 6 Blatchf. 187, Fed. Cas. 9366, hold-
ing creditor, taking for partnership debt, note of copartnership and in-
dividual notes of partners, indorsed by copartners, was entitled, after
bankruptcy, to dividends out of the several estate, joint or several; In re
Jewett, 7 Biss. 337, Fed. Cas. 7306, declaring that a partnership creditor
could prove his debt against the estate of an individual partner; Wilkins
V. Davis, 2 Low. 514, Fed. Cas. 17,664, holding that a joint creditor may
prove against the separate estate of the bankrupt and will receive divi-
dends from joint assets and surplus of separate assets after separate debts
are paid ; In re Webb, 4 Sawy. 328, Fed. Cas. 17^317, holding joint cred-
itor, in case of bankruptcy of one partner, has a right to prove his joint
debt and vote for assignee; In re Carrier, 39 Fed. 198, holding, where one
of two joint debtors becomes bankrupt, the creditor may set off the debt
against his separate indebtedness to the bankrupt; In re Lloyd, 15 Nat.
Bank Reg. 257, 15 Fed. Cas. 713, holding in involuntary proceedings
against a separate partner, creditors of partnership must be counted in
computing legal quorum ; In re Melick, 16 Fed. Cas. 1328, 4 N.* B. R. 97,
hplding an adjudication of bankruptcy may be made against one partner
only upon a joint debt; In re Rice, 20 Fed. Cas. 655, holding firm creditors
can participate in a dividend without showii^ they have exhausted the
individual estate of the retiring partner; Harris v. Peabody, 73 Me. 268,
holding, if^there is no joint estate and no solvent partners, joint and
separate creditors share the separate estate together; Allen v. Wells, 22
Pickk 455, 33 Am. Dec. 761, holding separate property may be attached for
partnership debts and a lien so acquired will not be defeated by subse-
quent attachment by separate creditor; BuUard v. Dorsey, 7 Smedes & M.
13, holding individual debt due a joint creditor could not be set off against
joint debt; Dahlgren v. Duncan, 7 Smedes & M. 294, holding, under stat-
ute, individual and partnership debts stand on equality as to insolvent's
est;ate; Simpson v. Schulte, 21 Mo. App. 644, holding partnership creditor
may have judgment against any partner without joinder of the others;
Lathrop v. Reed, 13 Allen, 295, holding contract claim for unliquidated
damages provable in insolvency; Smith v. Spengler, 83 Mo. 413, and Green
V. Conrad, 114 Mo. 664, 21 S. W. 841, holding debt due before assign-
ment by bank may be set off against debt due after it; Pearce v. Cooke, 13
R. I. 187, holding partnership creditor could prove his judgment against
separate estate; Higgins v. Rector, 47 Tex. 364, deciding that holder of a
claim against a partnership can establish his claim against estate of a
deceased partner; Morris v. Morris, 4 Gratt. 312, 323, quaere, if joint
creditor is entitled to share in separate estate of debtor wi^h separate
r
329 TUCKER v. OXLEY. 6 Cr. 34-46
creditors ; Bardwell v. Perry, 19 Vt. 301, 47 Am. Dec. 692, holding all that
separate creditors can require, in equity, is that partnership creditors first
exhaust partnership funds; Curtis v. Woodward, 58 Wis. 604, 505, 506,
46 Am. Eep. 649, 650, 651, 17 N. W. 331, holding firm debt provable in
bankruptcy against individual partner, where there was no partnership
property, and other partners had been discharged from liability ; Receivers
V. Gas Light Co., 23 N. J. L. 297, debtor of insolvent bank may set off
against his debt to receiver a deposit in bank.
Distinguished in In re Shults, 132 Fed. 675, solvent partnership which
is indebted to bankrupt cannot set off against such indebtedness a claim
due from bankrupt estate to one. of partners ; Murrill v. Neill, 8 How. 427,
12 L. Ed. 1141, holding that individual property shall first be applied to
individual debts of respective partners; Gray V. RoUo, 18 Wall. 633, 634,
635, 21 L. Ed. 929, holding, where a bankrupt owes a joint debt and holds
a note given by orie of the joint creditdrs and a third person, the two
flarms cannot be set off; Hitchcock v. Rollo, 3 Biss. 287, Fed. Cas. 6535,
holding assignee of claim* against an insolvent insurance company,, as-'
sigmed after notice of insolvency, cannot set it off against his previous in-
debtedness; McKinney v. Bellows, 3 Blackf. 33, holding setoff applies only
to debts due in the same right ; 'Oillaspy v. Peck, 46 Iowa, 462, holding lien
of subsequent judgment for an individual debt dpes not ta^e j)iiority over
lien of previously l*enaered' judgment upon a partniei:ship debt, as to
^eparatb estate; MeCullohv. Dashiell, 1 Har. &*<}. 106, KTT, 18 Am. Dftc.
279, holding joint creditors in equity can only look to the efilrplus off the
separate estate; In re Wilcox, 94 Fed. 103) 104, arguendo.
8etoff' under American bankruptcy acts. Note, Anni Oas. 19160, 977.
' Setoff against claim in hands of receiver, assignee or trustee for
creditors. Note, 23 L. R. A. 320.
Setoff in bankruptcy. Note, 55 L. It. A. 42.
Boles for marShaUng assets are equitable restraints on legal rights.
Cited in In re Nims, 10 Ben. 56, Fed. Cas. 10,268, holding joint creditors
share equally with partnership creditors in the partnership assets.
Distinguished in Cleghorn v. Bank, 9 Ga. 323, holding equity in favor of
separate creditors will not be allowed to take away a right acquired by an
execution at law on the part of joint creditors against the separate estate.
In adopting and enacting foreign statute decisions expounding it are
adopted witii it (followed as to bankrupt law).
Approved in James v. Appel, 192 B. S. 135, 48 L. Ed. 379, 25 Sup. Ct.
223, holding Ariz. Rev. Stats. 1897, par. 837, requiring motions for new
trial to be determined at texib at which motion shall be made, is manda-
tory and does not permit of continuance; Jennings v. Alaska Treadwell
Gold Min. Co., 170 Fed. 149, 95 C. C. A. 388, statute adopted from another
State which has been construed by the highest court there is presumed
to be adopted with the construction thus placed upon it; Peterman v.
Northern Pao. R.: Co., !]J05 Fed.* 336> applying role to Idaho statute giving
right of action for wrongful deatb to heirs or personal representatives;
i
I
6Cr.49^7 NOTES ON U. S. REPORTS. 330
Warnrir v. Railway Co., 104 U. S. 423, 41 L. Ed. 500, 17 Sup. Ct. 149, hold-
ing States, in adopting statute of frauds, adopted the settled oonstruction
of it; Willis v. Eastern & C. Co., 169 U. S. 307, 42 L. Ed. 768, 18f Sup. Ct.
35^ holding that United States, in adopting Massachusetts statute pro-
viding "summary process for recovery of land," adopted the settled con-
struction of it; Cronan v. Cotting, 104 Mass. 249, 6 Am. Rep. 285, con-
struing phrase "fiduciary character" in bankruptcy act ; Merrill v. National
Bank of Jacksonville, 173 U. S. 160, 175, 43 L. Ed. 651, 656, as to bank-
rupt act adapted from English statute of James.
EfEect of discharge in bankruptcy of individual partner upon liability
for partnership debts. Note, 3 Ann. Oas. 800.
Discharge of partnership liability in individual bankruptcy proceed-
ings. Note, 69 L. S. A. 774.
Miscellaneous. Cited in United States v. Eliason, 16 Pet. 301, 10 L. Ed.
972, and Derby v. Jacques, 1 Cliff. 433, Fed. Cas. 3817, as having allowed
I writ of error upon an agreed case ; generally in Greene v. Darling, 5 Mason,
206, Fed. Cas. 5765; Bemis v. Smith, 10 Met. 199, as to the meaning of
"debt" in bankrupt law; New Orleans etc. R. R. Co. v. Evans, 49 Miss. 788;
Adams v. Jeffries, 12 Ohio, 271, 40 Am. Dec. 478. ,
5 Cr. 49-57, 8 li. Ed. ll», TEATOK Y. BANK OF AIiEXAllDBIA.
• .Usages control and regulate general laws as to contracts made mider
and in reference thereto.
Cited in Renner v. Bank, 9 Wheat. 592, 6 L. Ed. 168, where, by custom,
four days of grace were allowed; United States v. Arredondo, 6 Pet. 715,
8 L. Ed. 556, holding courts bound to notice general customs and usages ^
law of land.
Usages of banks. Note, 50 Am. Dec. 97.
In Virginia, accommodation indorser promises to pay if, by due diligence,
payment cannot be obtained ftom maker.
Cited in Camden v. Doremus, 3 How. 533, 11 L. ]Bd. 713, discussing what
constitutes due diligence.
Where consideration moves to maker, on credit of indorser, maker and
indorser are charged equally.
Approved in Jones v. Berryhill, 25 Iowa, 298, where note was trans-
ferred to third person who knew there was no consideration for indorse-
ment; Kenworthy v. Sawyer, 125 Mass. 29, holding wife as accommodation
indorsei* cannot question consideration of note when sued by indorsee;
dissenting opinion in Magruder v. McDonald, 3 Cr. C. C. 310, Fed. Cas.
8965 ; majority holding first indorser may recover half of what he has paid
from his indorser; Central Bank v. Davis, 19 Pick. 375, holding acconmio-
dation note entitled to no peculiar favor; Love v. Wall, 1 Hawk. 315,
arguendo.
Under act of incorporation of Bank of Alexandzia* accommodation indorser
is liable on note as soon as it becomes due.
331 HOPE INS. CO. v. BOARDMAN. * 6 Cr. 57-61
Approved in First Nat. Bank v. Golden, 19 Gal. App. 505, 126 Pac. 499,
order on savings bank, given to debtor of commercial bank with accom-
panying pass-book, for collection, which was not unconditional and free
from other contract, was a non-negotiable chose in action ; Caton v. Lenox,
5 Rand. 42, as bearing on question of right pi last assignee to maintain
action against any or all assignors; Long v. Pence, 93 Va. 587, 25 S. E.
594, where statute relating to indorsers is construed; Hurd v. Hall, 12 Wis.
136, arguendo.
Release of indorser of note by failure to enforce liability of maker.
Note, 18 L. B. A. (N. S.) 532. ^
Oonstraction dioold not be resorted to anlaiB ambiguity txiits.
Approved in United States v. Baltimore etc. R. Co., 184 Fed. 95, apply-
ing rule in construing section 4 of Safety Appliance Act of March 2, 189S.
Prlncipla of law cannot be altered by implication drawn from preamble
to itatute.
Cited in Weatherhead v. Bledsoe's Heirs, 2 Overt. 355, 356, copstming
statute of limitations.
fi Or. 67-61, 8 li. Ed. S6^ HOPS IK8. 00. Y. BOABDMAN.
A ootporatipn aggregate is not a citisen.
Approved in dissenting opinions in Marshall v. B. & O. Ry. Co., 16 How.
348, 14 L. Ed. 968, and Dodge v. Woolsey, 18 How. 364, 15 L. Ed. 415,
where citizen of one State sued corporation formed in another, majority
of court holding corporation is a citizen for jurisdictional purposes ; Paul
T. Virginia, 8 Wall. 178, 19 L. Ed. 369, and Ducat v. Chicago, 48 111. 176,
95 Am. Dec. 581, holding corporation not to be^ citizen within meaning of
elanse providing "citizens of each State shall be entitled to all privil^es
and immunities of citizens in the several States"; Wood v. Hartford, 13
Conn. 209, 212, 88 Am. Dec. 896, 899, where corporation claimed it must •
be sued in county in which it has its residence; the court held it had no
residence. The general rule is approved in Tatem v. Wright, 23 N. J. L.
442, Smith v. Bank, 5 Serg. & R. 320, and Barrow Co. v. Kane, 170 U. S.
106, 42 L. Ed. 966, 18 Sup. Ct. 528, although all follow Marshall v. B. & O.
Ry. Co., supra, and hold, for purposes of jurisdiction, corporation will be
considered as citizen. Cited in Lexington Co. v. Dorr, 2 Litt. (Ky.) 257,
holding court will look to character of individuals who compose corpora-
tion, and if they may sue in any particular court, in right of citizenship,
corporation may; Wilson v. Pierce, 30 Fed. Cas. 163, and in dissenting
opinion, B. & 0. R. R. Co. v. Cary, 28 Ohio St. 218, as to what is test of
citizenship of corporation.
CMMudty of corporation aggregate to sue in Federal courts depends on
citizenship of members, and this must be shown by proper avennents.
Approved in Doctor v. Harrington, 196 U. S. 586, 49 L. Ed. 609, 25 Sup.
Ct. 355, presumption that stockholders are citizens of State of creation
of corporation does not preclude th^m from asserting actual citizenship
X
5 Cr. 61-92 ' NOTES ON U. S. REPORTS ^ 332
to sustain Federal jurisdiction when sued' as stockholders ; H. L. Bruett
6 Co. V. F. C. Austin Drainage Excavator Co., 174 Fed. 673, partnership
may sue or be sued in proper Circuit Court if the citizenship of its mem-
bers be such as to confer jurisdiction on the court; United States v. Mil-
waukee etc. Transit Co., 1^2 Fed. 253, where corporation organized and
owned by officers and stockholders o:l^ another, and was used merely as
dummy to. get rebates from carriers, thpy are treated as identical ; Barik
of Cumberland v. Willis, 3 Sumn. 473, Fed. Cas. 885, following rule; Kirk-
patrick v. White, 4 Wash. 597, Fed. Cas. 7850, where plea to jurisdiction
was sustained, it hj||pg shown four of the corporators were residents of
same State as plaintiff; North River 'Co. v. Hoffman, 6 Johns. Ch. 303,
where some members of corporation were residelits of sime State with de-
fendant; dissenting opinion in Marshall I v. B. & 0. Ry* Co., 16 How. 348,
350, 16 lai Ed. 968, 969, majority holding^ averment that corporations is
formed under laws of particular State sufficient, without any averments
as to citizenship of members; Covington Drawbridge Co. v. Shepherd, 20
How. 233, 15 L. Ed. 898 , Paul v. Virginia, 8 Wall. 178, 19 L. Ed. 359, cor-
poration nqt citizen within equal privilege clause; Shaw v. Quincy Co., 145
U. S. 451, 36 L. Ed. 772, 12 Sup. Ct. 938, St. Louis & S. F. Ry.-Co. v.
James, 161 U. S. 557, 40 L. Ed. 806, 16 Sup. Ct. 625, holding there is an in-
disputable presumption that corporation is composed of citizens' of State
which created it; dissenting opinion in Mc^utt v* Bland^ 2 How. 22, 11
L. B4. 164, arguqndo; Hollingsworth v. Southern Ry. Co., 86 Fed. 356,
where rule in Covington Drawbridge. Co. v. Shepherd, supra^ is adopted ;
Middlebrook v. Insurance Co., 14 Conn. 309, arguendo.
Distinguished in Wells v. Russellville Antljracite Coal Min. Co., 206
Fed. 530, allegation of corporate existence establishes citizenship of all
stockholders, and cannot be disproved by evidence that the stockholdei^,
or some of them, are not citizens of the State which created the corpora-
tion ; Springs v. Southern Ry., 130 N. C. 195, 41 S. E. 104, holding allow-
ance by Federal court of amendment to petition for removal does not euro
defect in petition presented to State court.
Wliere Juzisdiction depends on oltizenBliip of parties, citizenBliip of eacH
must lie stated positlTOly In pleadings.
Cited in Speigle v. Meredith, 4 Biss. 126, Fed. Cas. 13,227, Bank v.
Simonton, 2 Tex. 539, where foreign corporation made no allegations as
to capacity in which it sued; Donaldson v. Hazen, 1 Hempst. 424, 425,
Fed. Cas. 3984, following rule.
fi Or. 61-92, 3 L. Ed. 38, XTNITED STATES BANK v. DEVEAUZ.
Capacity of corporation aggregate to sue In Federal courts depends upon
dtlzenslilp of Its members.
• • Approved in Empire Rice Mill Co. v. Neumond, 199 Fed. 802, as to a part-
nership/ the presumption that its members are citizens of the State of its
domicile, does not apply ; H. L. Bruett & Co. v. F. C. Austin Drainage Exca-
vator Co., 174 Fed. 673, partnership may sue or be sued in proper Circuit
Court if citizenship of its individual members is shown to confer jurisdic-
333 UNITED STATES BANK v. DEVEAUX. 5 Cr. 61-92
/
tion; Sewing Machine Cases, 18 Wall. 675, 21 L. £d.,918, holding where one
of three defendants resides in same'' State as plainti% foreign defendants
cannot remove case to Federal courts; Commercial Bank v. Slocomb, 14
Pet. 64, 10 L. Ed. 356, holding like rule applies when corporation i^ de-
fendant ; Flanders v. Aetna Co., 3 Mason, 159, Fed. Cas. 4852 , North River
Co. V. Hoffman, 5 Johns. Qh. 303, holding if one member 6f corporation
resides in same State as defendant. Federal courts would have no juris-
diction to try case; Hays v. Pennsylvania Co., 17 Pa. St. 12, holding rule
applies in action in State court; Bacon v. Robertson, 18 How. 485, 15
L Ed. 502, upholding jurisdiction over stockholders' suit ; dissenting opin-
ion in Marshall v. Baltimore, 16 How. 344, 14 L. Ed. 966, majority holding
averment that defendants are body corporate created by laws of Maryland
is sufficient for jurisdictional purposes ; Philadelphia R. R. Co. v. Quigley,
21 How. 215, 16 L. Ed. 77, arguendo; Bank of United States v. Planters'
Bank, 9 Wheat. 911, 6 L. Ed. 245, upholding Federal jurisdiction over ac-
tion by United States bank against State bank; Bank of United States v.
McKenzie, 2 Brock. 400, 401, Fed. Cas. 927, as bearing on question of
residence of corporation; Hcckscher v. Binney, 3 Wood. & M. 336, 337,
Fed. Ca& 6316, arguendo; Thornburgh v. Savage Mining Co., 23 Fed. Cas.
1121, and Farfield v. Thorp, 13 Conn. 179, to show that courts will look
beyond the charter to determine the rights and liabilities of corporation;
Binney's Case, 2 Bland Ch. 147, arguendo ; Bank of Edwardsville v. Simp-
son, 1 Mo. 185, holding court will look beyond corporate name, and notice
individuals who compose corporation, and will, therefore, allow foreign
corporation to maintain suit in State courts; Dartmouth College v. Wood-
ward, 1 N. H. 116, ,Dartnlouth College is a public corporation. ^
Modified in Park Bank t. Nichols, 4 Biss. 315, Fed. XUas. 10,048, holding
it is a nonrebuttable presumption that corporators are citizens of State
in which corporation has its legal existence. -
Distinguished in Wells v. Russellville Anthracite Coal Min. Co., 206 Fed.
530, allegation of corporate existence establishes citizenship of all stock-
holders and cannot be disproved by evidence that some of them are not
citizens of State which created the corporation; Hirsch v. Independent
Steel Co., 196 Fed. 110, as a corporation is composed of citizens of State •
where it is incorporated, no jurisdiction can be taken of a suit by stock-
holders against the corporation; Bogue v. Chicago etc. R. Co., 193 Fed. '
733, citizenship of a corporation is that of the State wherein it is incor-
porated ; Middlebrooks v. Insurance Co., 14 Conn. 309, 310, Vhere attempt
was made to bring foreign corporation into State court by service of sum-
mons on resident stockholders; Adams v. Wiscasset Bank, 1 Me. 365, 10
Am. Dec. 90, as presenting an entirely different point; IJnion Bank v.
United States, 4 Humph. 370, decided on statutory grounds.
Removal of i causes from State to Federal courts. Note, 12 Am. Rep.
546. ^ \
"Bight of action given by act of Congress does not imply right to sue in
Federal courts unless it is so expressed.
Approved in Stevenson v. Fain, 195 U. S. 168, 49 L. Ed. 143, 25 Sup. Ct
6, Circuit Court of Appeals decree is final in controversy betwiben diverse
I - •
5 Cr. 61-92 ^ NOTES ON U. S. REPOjRTS. 334
citizens claiming nnd^r grants from different States; Levin ▼. United
States, 128 Fed. 830^ holding Congress may empower State courts to admit
qaalified aliens to citizenship ; Claflin y. Honseman, 93 U. S. 135, 28 L. Ed.
838, interpreting bankruptcy act, holding assignee may sue in State courts
to recover assets of bankrupt; In re Bany, 136 U. S. 609, Q15, 34 L. Ed.
508, 509, 42 Fed. 122, 126, Fed. Cas. 1059, holding Circuit Courts possess
no jurisdiction other than that which Constitution and acts of Congress
concur in conferring; Harrison v. Hadley, 2 Dill.. 235, Fed. Cas. 6137,
where action was brought in Circuit Court to determine controversy be-
tween two citizenis of same State involving title to oflSce; United States
V. New Bedford Bridge, 1 Wood. & M. 431, 438, 455, Fed. Cas. 15,867,
holding the Circuit Court has no power to punish for the erection of a
bridge over tide water or the obstruction of navigation in navigable
waters ; Pettilon v. Noble, 7 Biss. 453, Fed. Cas. 11,044, and National Bank
V. Hubbard, 49 Vt. 2, 24 Am. Rep. 98, holding further, clause giving United
States courts jurisdiction of suits by or against national banking associa-
tions, does not invest said courts with exclusive jurisdiction; Robinson v.
Bank, 81 N. T. 391, 37 Am. Rep. 513, holding statute permitting suits to
be brought in certain Federal courts is permissive, and does not limit
general rule which permits civil cases arising under laws of the United
States to be prosecuted and determined in State courts; Cadle v. Tracy,
11 Blatchf. HI, Fed. Cas. 2279, national bank incorporated under act of
Congress of 1864, can be sued only in courts designated in fifty-seventh
section of said act; Magill v. Parsons, 4 Conn. 322, arguendo; Crocker v.
Marine Bank, 101 Mass. 241, 8 Am. Rep. 337, bank organized under act
of Congress of 1864^ can be sued in State court only in county where
it is established.
Charter of United States bank empowers it to sue in any court which
would have cognizance of cause, if individual were party, but does not enlarge
Jurisdiction of any Federal courts.
Approved in Bankers' Trust Co. v. Texas etc. Ry. Co., 241 U. S. 303,
60 L. Ed. 1013, 36 Sup. Ct. 569, construing jurisdiction over suit against
railroad created under a)et of 1871; Central Bank v. Gibson, 11 Qa. 456,
where like provision in State charter was under consideration; dissenting
opinion in Osbom v. Bank, 9 Wheat. 877, 888, 6 L, Ed. 237, 240, where
' second charter is construed ; St. Louis Bank v. Allen, 2 McCrary, 93, 5 Fed.
552, and National Bank v. Superior Court, 83 Cal. 499, 24 Pac. 160, where
that section of national banking law relating to corporation's right to sue
and be sued is construed.
Distinguished on ground of wording of second charter^ Osbom v. Bank,
9 Wheat. 817, 6 L. Ed. 288.
A corporation aggregate 19 not a dtiien.
Approved in Davis v. Chesapeake etc. Ry. Co., 116 Ky. 151, 75 S. W.
277, compliance by foreign railroad with Kentucky laws requiring 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 Fed-
eral court; ^issenting opinion in Rundle v. Delaware Co.^ 14 How. 99^ 100,
335 UNITED, STATES K^K v. DEVEAUX. 6 Cr. ai-^92
\
102, 14 L. Ed. 34S| 344, majority holding it a citizen for purpose of giving
jurisdiction; dissenting opinion in Marshall v. B. & O. Ry. Co., 16 How.
348, 14 L. Ed. 967, majority following Rundle v. Delaware, snpra; dissent-
ing opinion in Dodge v. Woolsey, 18 How. 364, 15 L. Ed. 415, where cor-
porator brought suit against corporation, majority holding he might bring
suit in Federal courts if he resided in different State from that in which
corporation has its domicile; Wood v. Insurance Co., 13 Conn. 209, 212,
53 Am. Dec. 896, 399, corporation has no residence, but for purpose of
maintaining jurisdiction courts will regard residence of stockholders as
residence of corporation;. Ducat v. Chicago, 48 111. 176, 95 Am. Bee. 532,
also Commonwealth v. Milton, 12 B. Mon. 227, 64 Am. Bee. 535, and Tatem
V. Wright, 23 N. J. L. 442, 443, holding corporation not a citizen within
meaning of clause of Constiti^jtion whiph declare3 citizens of/ each State
shall be entitled to all privileges and immunities of citizens of the several
States ; Bank of Augusta v. Earle, 13 Pet. 586, 10 L. Ed. 30^, and Paul v.
Yii^nia, 8 Wall. 179, 19 h* Ed. 359, as luring on claim of corporation
to privileges and immunities of citizens; Society v. New Haven, 8 Wheat.
491, 5 L. Ed. 669, where question whether property of corporation was
protected by treaty of peace of 1783 in same manner as that of natural
persons was determined; Northern Ind. Ry. Co. v. Michigan Central Ry.
Co., 15 How. 249, 251, 14 L. Ed. 681, 682, San Mateo Co. v. S. P. R. R. Co.,
7 Sawy. 525, 13 Fed. 161, Clarke v. Bank of Missouri, 10 Ark. 520, 521,
522, 52 Am. Dec. 250, 251, 252, and State v. Milwaukee Ry. Co., 45 Wis.
593, as bearing on question of commorancy of corporation; Goshen Turn-
pike Co. V. Sears, 7 Conn. 94, as an instance where corporation was in fact
treated as a natural person; Davis v. Central R. I(. Co., 17 Qa. 327, as
bearing on question as to where residence of corporation is considered to
be; American Society v. Gartrell, 23 Ga. 458, In re Assurance Assn., 26
N. J. L. 368 , In re Kipp, 1 Paige Ch. 613, holding members of corporation
are competent as witnesses for or against corporation; Smith v. Bank,
5 S. ft R. 320, arguendo; Cromwell v. Insurance Co., 2 Rich. 516, holding
corporation has its residence wherever it does its corporate business.
Modified in Ohio & M. Co. v. Wheeler, 1 Black, 295, 17 L. Ed. 133, and
Barrow Co, v. Kane, 170 U. S. 106, 107, 42 L. Ed. 966, 967, 18 Sup. Ct.
528, holding for purpose of giving jurisdiction in Federal courts corpora-
tion may be considered a citizen ; McKinley v. Wheeler, 130 U. S. 635, 636,
32 L. Ed. 1050, 9 Sup. Ct. 640, holding corporation may join in location
of mining claims' upon public lands in like manner as individual citizens ;
Raibroad Tax Case, 8 Sawy. 265, 283, 13 Fed. 745, 758, 9 Sawy. 193, 18
Fed. 403, where a private corporation is said to be a citizen within the
meaning of the first section to the Fourteenth Amendment to the Constitu-
tion; Louisville Ry. Co. v. Letson, 2 How. 554, 11 L. Ed. 376, holding for
jurisdictional purposes, corporation will be considered a citizen of State
which created it; and to same effect, Elson v. Piggott, 94 Ind. 22; also,
Cooke V. State Bank, 52 N. T. 110, 11 Am. Rep. 676, and B. & O. R. R. Co.
V. Cary, 28 Ohio St. 218, collecting authorities. ^
Residence of corporation for jurisdictional purposes. Note, 33 Am*
Dec 400.
/
/^
5 Cr. 61-92 NOTES ON U.* S. REPORTS. 336
Corporations sning in Federal courts, mast aver facts to show that its
members are entitled as cltiscns to maintain action.
Approved in Doctor v. Harrington, 196 U. S. 686, 49 L. Ed. 609, 25
Sup. Ct. 355, presumption that stockholders are citizens of State of crea-
tion of corporation does not preclade them from asserting actual citizen-
ship to sustain Federal jurisdiction when sued as stockholders; dissenting
opinion in Marshall v. B. & 0. Ry. Co., 16 How. 340, 14 L. Ed. 964, where
no averments were made as to citizenship of members, the rule was denied
by majority; Bank of Cumberland v. Willis, 3 Sumn. 473, Fed. Cas. 885,
following rule; Karkpatrick v. White, 4 Wash. 597, Fed. Cas. 7850, where
plea in abatement that one member of corporation was resident of same
State as defendant was sustained; Susquehanna Bridge Co. v. Evans, 4
Wash. 482, Fed. Cas. 13,635, note by Washington, J. Principle applied in
Lexington Co. y. Dorr, 2 Litt. 257, where corporation brought action in
State court; I^ank v. Martin, 5 Pet. 480, 8 L. Ed. 198, where suit brought
by United States Bank was disipissed by United States District Court for
want of jurisdiction; Society v. Wheeler, 2 Gall. 133,' Fed. Cas. 13,156,
arguendo; Heriot v. Davis, 2 Wood. & M. 231, Fed. Cas. 6404, as bearing
on question of right of Circuit Court to entertain jurisdiction of case when
it does not have jurisdiction over all of defendants.
Overruled in Marshall v. B. & 0. Ry. Co., 16 How. 326, 14 L. Ed. 958,
holding averment that corporation was organized under laws of State of
which adverse party is not a resident is sufficient; Covington Drawbridge
Co. V. Shepherd, 20 How. 233, 234, 16 L. Ed. 898, 899, where rule in Mar-
shall V. B. & O. Ry. Co., supra, was approved; Louisville Ry. Co. v. Letson,
2 How. 554, 11 L. Ed.. 376, holding corporation a citizen of State creating
it for jurisdictional purposes. The rule in Louisville v. Letson, supra,
approved generally in Ober v. Gallagher, 93 U: S. 205, 23 L. Ed. 881,
Missouri Ry. Co. v. Texas Ry. Co., 4 Woods, 364, 10 Fed. 600, Shaw v.
Quincy Mining Co., 146 U. S. 451, 86 L. Ed. 772, 12 Sup. Ct. 938, holding,
further, corporation, like individual, can only be sued in district of its
domicile, or in that of plaintiff; so also it is approved and followed in
St. Louis & San Francisco Ry. Co. v. James, 161 U. S. 655, 566, 657,
40 L. Ed. 806, 16 Sup. Ct. 625, Barrow v. Kane, 170 U. S. 106^ 107, 42
L. Ed. 966, 967, 18 Sup. Ct. 628 , Doremas v. Bennett, 4 McLean, 226, Fed.
Cas. 4001 , Hall v. Bank, 14 W. Va. 619, 621 , Maltz v. American Express
Co., 1 Flipp. 612, Fed. Cas. 9002, Insurance Co. v. "C. D., Jr.," 1 Woods,
74, Fed. Cas. 7051, Terry v. Insurance Co., 3 Dill. 410, Fed. Cas. 13,839,
holding corporation created by laws of Great Britain to be an "alien," and
entitled, when sued, to have action brought in Federal court; Lonergan v.
Illinois Ry. Co., 55 Fed. 651, but a mere averment that corporation is a
citizen of a particular State is insufficient; City of Ysleta v. Cauda, 67
Fed. 7, case of a municipal corporation; Hollingsworth v. Southern Ry.
Co., 86 Fed. 356, holding, further, that one State by adopting a corporation
already organized under the laws of another State, does not make cor-
poration a citizen of its State, so that Federal court is divested of juris-
diction in an action between one of its citizens and corporation; Dinsmore
v. Philadelphia Ry. Co., 7 Fed. Cas. 728, and Bank v. Simonton, 2 Tex,
\
\
337
MATTHEWS v. ZANE.
6 Cr. 92-99
539, fdllowing Louisville v. Letson, supra, but holding there must be an
avennent of jurisdictional facts in case of corporations suing, the Bame
as when individual citizen sues.
Distinguished in Winkler v. Chicago etc. E. Co., 108 Fed. 308, holding
insufficient averment that corporation was at time of conmiencdment of
suit and still is citizen of another State ; Spring v. Southern Ry. Co., 130
K. C. 195, 201, 41 6. E. 104, holding allowance by Federal court of amend-
ment to petition for removal does not cure defect in petition presented
to State court; Calvert v. Railway Co., 64 S. C. i42, 41 S. E. 964, holding
railroad incorporated in another State may remove suit to Federal court
though it has complied with act of March 19, 1896.
Residence of corporation for jurisdictional purposes. Note, S8 Am.
Dec. 400.
The tenn "Inliabitant" may Include coxporationa having property within a
district. I ,
Cited in Gilbert v. New Zealand Ins. C($, 49 Fed. 885, and Zambrino
V. Galveston Ry* Co., 38 Fed. -451, 453, holding corporation may be an in-
habitant of a district other than that of which it is a citizen or subject;
Home Ins. Co. v. Augusta, 50 6a. 541, 542, where foreign corporation
having local agent was held to be an inhabitant ;. Slavens v. S. P. R. R.
Co., 51 Mb. 310, where corporation was held to be resident of county
throusfh which its railroad passed; Bushel v. Comm. Ins. Co., 15 Serg. &
B. 177, holding the word "person" as used in a statute, includes corpora-
tions as well as individuals ; Yadkin Cq, v. Benton, 1 Hawk. 423, implying,
without deciding, residence of corporation is confined to county in which
it has its principal office ; Alabama etc. Mfg. Co. v. Riverdale Cotton Mills,
127 Fed. 504, arguendo. / .
Trustee is a real person, capable of being a citizen or alien, who has tbe
Wilde legal estate in himself. «
Cited in Mead v. Walker, 15 Wis. 503, which involved the question
whether trustee or cestui que trust was real party in interest in suit
hrought by former.
Dissolution of corporations. Note, 12 Am. Dec. 241. ' ^
Miscellaneous, tijited in Gates v. Johnson, 10 Fed. Cas. 87, not clear
to what point cited ; Sill v. Bank of United States, 5 Conn. 106, as to value
of a decision wheu. court did not consider particular point decided ; State
V. Finley, 6 Kan. 369, not in point ; Jetts Case, 18 Gratt. 949, as to duties
of courts in interpreting statutes; Farmers' Bank v. Sawyer, 7 Wis. 385,
as authority for holding a demurrer to a complaint that it did not allege
corporation was created under laws of some State, could not be considered
frivolous; Milwaukee Mechanics' Ins. Co. v. Russell, 65 Ohio St. 258, 62
X. E. 339, holding void condition in insurance policy giving insurer option
to rebuild.
6 Cr. 92-99, 3 K Bd. 4ft, MATTHEWS v. ZAKB.
Public lands lying in one district cannot be sold at land ofllce of anothw
district
I— 2a
/
6 Cr. 100-141 NOTES ON U. S. REPORTS. 338
Cited in Doe v. Eslava, 9 How. 447, 13 L. Ed. 211, as bearing on ques-
tion as to title acquired by certificate of purchase.
Modified in Garner v. Willett, 18 111. 458, 459, where application to
purchase was made while land was lying within district from whose office
it was afterward sold."
6 Or. 100-116, 3 K Ed. 48, HODCffiON V. BfABINE IKS. CO.
Insurance made for benefit of all whom it may cpncem, without warranty
as to neutrality, covers the tnterest of a belligerent^
Approved in Seamens v. Loring, 1 Mason, 136, Fed. Gas. 12,583, hold-
ing policy issued under such circumstances covers interest of all who have
authorized the insurance; Maryland Ins. Co. v. Bathurst, 5 Gill & J. IL91,
where loss occurred through ship and cargo being property of belligerent.
Liability of marine insurer for losses arising out of war. No(!e, 6
, B. R. 0. 5.
Overvaluation, without other evidence of fraud, will not avo^d policy.
Cited in Brooke v. Insurance Co., 4 Mart. (N. S.) 643, where payment
of policy was contested on ground of overvaluation of cargo; Akin v.
Insurance Co., 4 Mart. (N. S.) 662, where insured recovered, although
goods invoiced at sum less than amount insured for; Phoenix Co. v. Mc-
Lpon, 100 Mass. 476, holding, in absence of fraud, valuations are binding
on insurers both in law and equity.
Overvaluation of property insured. Note, 29 Ajn. Dec. 619.
An Innocent misrepresentation, not material to risk, does not avoid policy.
Cited in Dewees v. Insurance Co., 34 N. J. L. 251, holding plea setting
up misrepresentation collateral to contract of insurance in avoidance of
policy, must show it was material and fraudulently made.
6 or. 115-141, 3 L. Ed. 53, UNITED STATES V. PETERS.
Federal courts have Jurisdiction over case in which State may be ultimately
affected, provided State be not necessarily party defendant.
Approved in State ex rel. Sorrel v. Judge, 106 La. 428, 31 South. 58,
issuing peremptory mandamus commanding judge to reinstate cause for
negligent killing of bull by railroad and to proceed to trial on merits;
Salem Mills Co. v. Lord, 42 Or. 91, 69 Pac. 1936, holding that court may
look behind nominal parties to determine if action is against a State;
Board of Education v. Volk, 72 Ohio St. 486, 74 N. E. 650, arguendo;
Louisville Ry. Co. v. Letson, 2 How. 550, 11 L. Ed. 875, where corporation
was sued in United States Circuit Court, although State was a member
of corporation; also in Lee v. Kaufman, 3 Hughes, 103, Fed. C^s. 8191,
and United States v. Lee, 106 U, S. 209, 211, 212, 27 L. Ed. 178, 179, 1 Sup.
Ct. 279, where suit was maintained against defendants who held as repre-
sentatives of the United States; South Carolina v. Wesley, 155 U. S. 544,
39 L. Ed. 254, 15 Sup. Ct. 231, where there was a suggestion that the State
was a necessary party, but no averment and proof thereof; Tindal v. Wee-
339 UNITED STATES v. PETERS. 6 Cr. 100-141
ley, 1«7 U. S. 214, 221, 42 L. Ed. 140, 143, 17, Sup. Ct. 774, 777, holding
averment by- defendants that they hold as representatives of the State does
not make State defendant ^itliin meaning of eleventh amendment so as
to deprive court of jurisdiction; Head v. Porter, 48 Ted, 482, where suit
was maintained against government armorer for infringement of patent;
Howell V. Miller, 91 Fed. 135, holding injunction maintainable to prevent
infringement of copyright by State agents preparing a new edition of its
laws; dissenting opinion in Cunningham v. Mafson Ry. Co., 109 U, S. 462,
27 L. Ed. 998, 3 Sup. Ct. 612, majority, holding, under facts, State was an
indispensable party defendant.
Explained in dissenting opinion in United States v. Lee, 106 U. S. 242,
27 L. Ed. 189, 1 Sup. Ct. 279, majority upholding jurisdiction over suit
against defendants who held as representatives of United States.
Distinguished in Governor v. Madrazo, 1 Pet. 122, 7 L. Ed. 79, where
it was held a suit against Governor of a State officially is suit against State ;
Briggs V. Lightboats, 11 Allen, 178, where lien for labor and material fur-
nished in construction of boat was sought to be enforced against United
States, after title and possession had passed to United States; Board v.
Gannt, 76 Va. 463, where suit was in State court, against State official,
although State was held to be real party defendant ; State v. Doyle, 40 Wis.
203y 206, where it was held a suit could not be maintained against the
Secretary of State, when he is sued in his official capacity.
When action against officers deemed against State. Note, 44 L. B. A.
(N. 8.) 196.
jQxifldiction of Federal courts cannot be affected by State legislation.
Approved in State v. Wildes, 34 Nev. (94), 116 Pac. 597, State legislature
had no power to disturb property rights acquired under judgment order-
ing bank into involuntary liquidation; Riggs v. Johnson County, 6 Wall.
195, 18 L. Ed. 776, where State couri enjoined defendant from acting, the
effect of which was to annul judgment of Federal court; Ex parte Hill,
38 Ala. 437, where the jurisdiction of officers created by Confederate
States government was sought to be abridged by act of one of the Con-
federate States; Rhode Island v. Massachusetts, 12 Pet. 750, 751, 9 L. £d.
1270, 1271, arguendo; Bank of Commerce v. New York, 2 Black, 633, 17
L. Sd. 455, as an instance where power of State to encroach on powers of
Federal government was denied; Mayor v. Cooper, 6 Wall. 253, 18 L. Ed.
853, as to right of national government to have its laws interpreted and
applied by its own tribunals ; The Celestine, 1 Biss. 12, Fed. Cas. 2541, as
to exclusive jurisdiction of court once having acquired jurisdiction ; In re
Brinkman, 7 Bankr. Reg. 426, 4 Fed. Cas. 147, as to prohibition on State
(courts from taking cognizance of cases falling within exclusive jurisdic-
tion of Federal ccftirts; Ex parte Hill, 38 Ala. 462^ arguendo; Ex parte
Holman, 28 Iowa, 105, 4 Am. Bep. 169, as bearing on question of right of
State court to interfere with operation of Federal; Semple v. Hagar, 27
Cal. 170, as to right of State courts to review decisions of Federal ; Lincoln
Mining Co. v. Court, 7 N. M. 505, 38 Pac. 586, holding void territorial act
of 1889, relating to change of venue of territorial' causes.
6 Cr. 14^154 NOTES ON U. S. REPORTS. 340
It rests with Federal courts to detennine the au^Btlon of tli«ir own juris-
diction.
Approved in Starr v. Chicago etc. P. Ry.*Co., 110 Fed. 6, and Freeman
V. Howe, 24 How. 459, 16 L. Ed. 752, both following rule ; Ex parte Holman,
28 Iowa, 104, 4 Am. Rep. 168, arguendo.
Miscellaneous. Cited in Ex parte Crane, 5 Pet. 219, 8 L. Ed. 103, People
V. Pearson, 2 Scam. 204, 33 Am. Dec. 448, Richards v. Wheeler, 2 Aiken,
370, Holmes v. Jennison, 14 Pet. 632, 10 L. Ed. 630, Ex parte Newman,
14 Wall. 166, 20 L. Ed. 879, and Jelley v. Roberts, 50 Ind. 7, as an instance
where mandamus was issued by Supreme Court, and as bearing on general
subject of power to issue writ of mandamus; Assigns v. Lamar, 2 Fed.
Cas. 69, where reason for enforcement by one court of decree rendered in
another is stated ; Ex parte Reynolds, 20 Fed. Cas. 598, as having no bear-
ing on case; Ex parte Law, 35 Ga. 289, as authority for holding United
States Circuit and District C!iyurts are not inferior courts within^echnical
use of that term ; erroneously in Cline v. Greenwood, 10 Or. 241, and Cook
V. Portland, 20 Or. 582, 27 Pac. 264.
Superintending ^control and supervisory jurisdiction over inferior or
subordinate tribunal. Note, 51 L. R. A. 84.
• Mandamus to compel inferior court to enforce its judgment or decree.
Note, 24 L. R. A, (N. S.) 887.
5 Or. 142-154, 3 L. Ed. 61, VIOLETT v. PATTON.
Blank indorsement with intent to give person credit, precludes indomer
from denying that it was not filled up when he indorsed it.
Approved in Gronvold v. Federal Union Surety Co., 212 Fed. 912, 129
C. C. A. 428, one who signed printed blank application and printed blank
indemnity bond to surety company, was estopped from denying he executed
and authorized the delivery of the completed bond; Michigan Bank v.
Eldred, 9 Wall. 552, 19 L. Ed. 776, where blanks in note were filled in by
holder, after which it was transferred to bona fide purchaser; Goodman v.
Simonds, 10 How. 361, 15 L. Ed. 939, and Bank v. Neal, 22 How. 108, 16
L. Ed. 328, holding, where party to negotiate instrument intrusts it to an-
o^er with blanks not filled up, such instrument carries on its face implied
authority to fill up blanks ; Roberts v. Adams, 8 Port. 301, 33 Am. Dec. 292,
where firm had signed blank note, and after dissolution it had been filled
out by one of the partners and given in satisfaction of firm debt ; Herbert
V. Huie, 1 Ala. 20, 34 Am. Dec. 756, where note was filled in for greater
sum than had been agreed on; Beckwith v. Angell, 6 Conn. 321, where
agreement between indorser and holder was filled in subsequent to indorse-
ment; South Berwick v. Huntress, 53 Me. 91, 87 Am. Dec. 537, where
penal bond was signed by sureties before sum was inserted, it was pre-
sumed parties had agreed that one to whom bond was delivered might
make insertion; Androscoggin Bank v. Kimball, 10 Cush. 374, holding, if
one sign note with blank date for accommodation of another, it will be
presumed he authorized. other to fill in date; Greenfield Bank v. Stowell,
123 Mass. 198, 25 Am. Rep. 68, holding indorsement and delivery uiid^r
/•
341 VIOLETT v. PATTON*. 5Cr.l42-j^
soeh circumstances makes one to whom delivered indorser's agent; Whit-
more V. Nickerson, 125 Mass. 498, 28 Am. Kep. 258, where A indorsed in
blank unsigned promissory note and delivered it to B to deliver to C, when
C signed his firm name thereto, B delivered to C, who sighed his indi-^
vidnal name; Rogers v. Stevenson, 16 Minn. 73, where C indorsed A's un-
sigTied note to B, B afterward acquiring A's signature 'thereto; Chaddock
V. Vanness, 35 N. J. L. 524, 10 Am. Bep. 262, arguendo ; Nelson v. Duhois,
13 Johns. 179, where indorsement was made in blank before note was de-
livered to payee, holder may write over name of indorser a guaranty, so
as to take promise out of statute of frauds ; Van Duzer v. Howe, 21 N. Y.
537, and Waldron v. Young, 9 Heisk. 782, where filling of blank was viola-
tion of agreement and to that extent a forgery; Selser v. Brock, 3 Ohio
St. 306, where principal debtor and payee agreed upon and filled in illegal
rate oi interest; Frazier v. Gains, 2 Baxt. 97, where principal debtor in-
serted greater sum in note than his sureties had agreed to be liable for;
Orrick v. Colston, 7 Qratt. 195, Hopkins v. Richardson, 9 Qratt. 495, where
indorser of bond was held, the principal debtor becoming insolvent ; Snyder
V. Van Doren, 46 Wis. 608, 32 Am. Rep. 748, 1 N. W. 288 ; dissenting
opinion in Magruder v. McDonald, 3 Cr. C. C. 310, Fed. Cas. 8965, Clark
V. Sigoumey, 17 Conn. 525, Weav^* v. Marvel, 12 La. Ann. 518, as an
instance where note was indorsed containing blank to be afterward filled;
Pibrse v. Irvine, 1 Mfnn. 375, as an instance where parol evidence was
adifdtted to explain the nature of contract arising under such circum-
stances; Hodgkin v. Bond, I'N. H. 285j holding, where one indorses in
blank, this is not sufficient memorandum, within meaning of statute of
frauds.
Distinguished in United States v. Neldon, 2 Brock. 72, Ffed. Cas. I5,862i,
holding. principle does not apply to seated instrumerits ; Angle v. Insur-
ance Co., 92 U._ S- 339, 28 I/. Ed. 559, where material parts of printed form
were.altered ; iq^li'shv. Breheman, 5 Ark. 382, 41 Am. Dec. 99, where note
was altered hgiansertion of date after execution.
•
Implied authority to fill in blanks so as to complete signed instrument.
Note, 2 Ann. Gas. 331.
Liability of maker, acceptor or indorser of commercial paper where
blanks .tlietein- are filled contrary to instructions. Note, 5 B. B. 0.
704.
Ben^t to promisor or damage to promisee constitutes good consideration.
Approved in First Nat. Bank v. Hinton, 123 La. 1028, 49 South. 695,
applying rule to accommodation note given to a bank for the purpose of
holding indorser should make default ; White Sewing Mach. Co. v. Fowler,
28 Nev. 110, 78 Pac. 1035, bond given to enable principal to obtain exten-
sion of credit shows sufficient consideration to bind sureties; dissenting
opinion in Baltimore etc. R. Co. v. Duke, 38 App. D. C. 175, Ann. Cas. 1913G,
83^ majority upholding contract of employment entered into by employee
of express company whereby he assumed all risk connected with his em-
ployment; United States v. Linn, 15 Pet, 314, 10 L. iSd. 751, and Ken-
worthy v. Sawyer, 125 Mass. 29, where accommodation sureties were held
I
:^]
6 Cr. 142-154 NOTES ON U. S. REPORTS. 342
bound on strength of something of value flowing from promisee to their
principal; Emerson v. Slater, 22 How. 43, 16 L. Ed. 365| and Offcutt v.
Hall, 1 Cr. C. C. 574, Fed. Cas. 10,450, holding averment that defendant
/ indorsed note to give it credit, and that this induced plaintiff to accept
same, is sufficient averment of consideration; Rucker v. Bolles, 80 Fed.
513, 49 U. S. App. 375, where performance of. act by promisee under no
obligation to do so was held good codsideration ; Gillespie v. Battle, 15 Ala.
283, holding note given by vendee in possession for purchase money of
land cannot be avoided on ground that contract is void by statute of
frauds; Whiteside v. Jennings, 19 Ala. 790, where note given by purchaser
for land sold under order of Orphans' Court was held good consideration
for bond for titles executed by commissioners; R. E. Lee Min. Co. v.
Omaha Co., 16 Colo. 132, 26 Pac. 331, where advance by promisee to
promisor was held good consideration; Fickling v. Marshall, 22 La. Ann.
507, where promisee relinquished third party from mortgage obligation;
Farmer v. Stewart, 2 N. H. 101, holding forbearance of right to object
to award is good consideration for promise ; Sands v. Grooke, 46 N. T. 570,
where risk incurred by prondsee was held sufficient consideration; Bason
V. Hughart, 2 Tex. 479, where promisee relinquished judgment; MuUer v.
Riviere, 59 Teif. 642, 46 Ain« Rep. 292, holding agreement of promisee not
to foreclose deed of trust on stock of goods owned by promisor's husband,
and to furnish promisor goods under same terms they were famished her
husband, is good consideration for promise to pay husband's deb^; Piatt
V. United States, 22 Wall. 507, 22 L. Ed. 861, applying rule to government
contract; Somers v. Miner, 9 Conn. 466, holding where several subscribe
and agree to pay to a certain fund,* the promises of others are good con-
sideration for promise of each subscriber ; Vincent v. Larson, 1 Idaho, 248 ,
Owing's Case, 1 Bland Ch. 401, 17 Am. 1>6C. 837, Love v.' Wall, 1 Hawk.
315, arguendo. *
Distinguished in Rutledge v. Townsend, 38 Ala. 716, where new Jioto
were given as collateral security for existing indebtedness; hel4 no damage
to promisee; Crane v. BtiUock, Charlt. (Ga.) 320, hblding a promiBe by
trustee to pay, individually, debt of cestui que trust, to be withoat oon*
sideration.
V
Blank indorsement, for accommodation, wltli Intent to glTe a penen credit*
is in effect a letter of credit.
Cited in Israel v. Gale, 77 Fed. 533, holding indorser liable to' every-
one except party for whom it was intended; Jones v. Berryhill, 25 Iowa,
300, holdiiig guarantor, under statute, liable the same as accommoda-
tion indorser; Breckenridge v. Lewis, 84 Me. 356, 30 Am. St. Rep. 356»
24 Atl. 865, where one intrusted his signature to agent to have some obli-
gation written over it; Johnson v. Blasdale, 1 Smedes & M. 20, 40 Am.
Dec. 86, holding further, where agent exceeds his authority, and purchaser
is aware of this fact, note will be void beyond sum authorized; Davis v.
Lee, 26 Miss. 509, 59 Am. Dec. 268, where party to whom note was in-
trusted was authorized to fill up as he chose, not inconsistent with
purpose for which signed; Smith v. Wyckoff, 3 Sand. Ch. 90, arguendo;
343 VIOLETT v. PATTON. 6 Cr. 142-164
Chemang Bank ▼. Bradner, 44 N. Y. 686, where member of finxl signed
draft in blank with firm's name, and delivered same to third party ; Whittle
V. ffide Bank^ 7 Tex. Civ. App. 618, 26. S. W. 1012, where accepted draft
was used by holder to defraud acceptor; Teaton v. Bank of Alexandria,
5 Cr. 53, 3 L. Ed. 36, sastaining action against accommodation indorser;
Folger V. Chase, 18 Pick. 68, where indorsement was on blank piece of
paper attached to note; Centril Bank v. Davis, 19 Pick. 375, holding
"accommodation indorser is entitled to no peculiar favor''; Michigan Co.
V. Leavenworth, 30 Vt. 20, following rule.
Distinguished in Conway v. Bank, 6 J. J. Marsh. 132, where note was
indorsed under agreement that it was to be discounted by particular party,
whieh agreement was broken.
Wlifltlier suit against maker of note would lutve inrodactfd money is a^Mstloii
for jnzy.
Cited in Camden v. Doremus, 3 How. 633, 11 L. Ed. 713, and Poeocke v.
Blount, 6 Mo. 346, arguendo.
Before resort can be liad to indorser of note, maker must be sued if solvent.
Approved in Smith etc. Co. v. Ojerholm, 93 Tex. 36, 63 S. W. 341,. hold-
ing under Rev. Stats., art. 1204, maker must be execution proof; Hanna
V. Pegg, 1 Blackf. 184, suit against assignor; Herald v. Scott, 2 Ind. 67,
holding where assignee sues assignor, he must show that maker is unable
to pay any part; Bozell v. Hauser, 9 Ind. 624, where maker was shown
to be utterly insolvent; Morrison v. Lovell, 4 W. Va. 360, as to what
circumstances relieve holder from pursuing principal debtor; Tisbaugh v.
Spunaugh, 118 Iowa, 340, 92 N. W. 69, arguendo.
Release of indorser of note by failure to enf oree liabiUty of maker.
Note, 18 L. R. A. (N. 8.) 557.
Virginia statute of frauds construed and manner in wtalch it differs from
ai^^Odi statote, as to requiring agreement to answer for debts of another to
state consideration therefor, pointed out.
Cited in Thompson v. Hall, 16 Ala. 207, 208 , Packard v. Richardson, 17
Mass. 141, 9 Am. Dec. 134, Pearce v. Wren, 4 Smedes & M. 97, as author-
ity for holding a promise to answer for debts of another need not state
eonsideration ; also in Britton v. Angier, 48 N. H. 423, 424, Miller v.
Irvine, 1 Dev. & B. 107, where above rule is adopted. The rule of Thomp-
son V. Hall, supra, is followed in Fyler v. Givens, 3 Hill, 61, 63 , Taylor v.
Ross, 3 Yerg. 332, 333, Colgin v. Henley, 6 Leigh 100, 103, Dorman v.
Richard, 1 Fla. 292. Cited generally in Rigby v. Norwood, 34 Ala. 133,
How V. Ecmball, 2 McLean, 107, Fed. Cas. 6748 , EUett v. Britton, 10 Tex.
212, as being contra to English rule in the following; Hayes v. Jackson,
159 Mass. 453, 34 N. E. 684, Bean v, Valle, 2 Mo. 138, Neelson v. Sanborne,
2 N. H. 414, 9 Am. Bee. 108, as authority for holding no action can be
maintained, in case where statute requires agreement to be in writing,
unless consideration for promise be stated in writing.
When consideration of contract must be expressed and what is suffi-
eient expression. Note, 60 Am. St. Rep. 435, 436.
/
\
5Cr.l64r-173 NOTfes ON U. S. REPORTS, . 344
Statement of consideration in memorandum of contract to answer for
debt of another. Note, Ann. Gas. 191SB, 990.
Miscellaneous. Cited in dissenting opinion in Hunter v. Hempstead, 1
Mo. 7Q, as to right of indorsee to sue remote indorser, not in point.
5 Cr. 164-173, 3 L. Ed. 64, FIEBOE v. TtTB^B.
Virginia statute making void as to creditoiB conyeyances not acknowledged
and recorded as therein provided, word "creditors" refers to those of grantor
only.
Approved in Gilbert v. Peppers, 65 W. Va. 365, 36. L. R. A. (N. S.) 1181,
64 S. E. 365, deed of trust of stock of merchandise, which permitted debtor
to remain in possession and dispose of gqods, was void; Kelly v. Mills, 41
Miss. 283, holding deed from naked trustee' to complainant not void as to
trustee's creditors for failure to record; Mississippi etc. Co. v. Chicago etc.
R. R. Co., 58 Miss. 856, holding unrecorded mortgage not void as to cred-
itors of mortgagee's constructive trustee who is charged with notice; Givens
V. Bradford, 2 McCord,.155, 13 Am. Dec. 705, holding unrecorded marriage
settlement not void as to creditor of husband who had notic\; Crenshaw
y. Anthony, Mar^. & Y. 112, holding failure to record trust deed in Tennes-
see, and possession for .five years by husband of cestui que trust, wlTo
had notice, does not give husband title or make deed void as to his cred-
itors; Morgan v. Elam, 4 Yerg. 428, 449, holding ujjrecorded marriage
settlement, made in Virginia, i^t void as to creators of husband,. who was^
party thereto ; Bra^shaw v, Thomas, 7 Yerg. 499, applying rule to similar
statute and admitting in evidence unregistered contract tq sell a horse to
prove title in obligor when levied on by obligee's creditor; Hamilton v.
Bishop, 8 Yerg. 42, 29 Am. Dec. 108, holding unre^stered deed of slave
to separate use of married woman not void so as to give tilile to purchaser
under mortgage made by her husband; Douglass v. Morford, 8 Yerg. 385,
holjding a proviso in registration statute in favor of "rights of creditors"
referred to creditors of grantor as to whom unregistered bill of sale held
void; Baldwin v. Baldwin, 2 Humph. 477,, holding unregistered deed of
feme sole to trustee fpr her benefit in contemplation of marriage, not void
as to creditors of husband; Land v. Jeffries, 5 Rand. 222, 258, holding un-
recorded deed by feme sole intended as a trust, made in contemplation of
marriage, not void as to her husband's creditors ; Chamberlayne v. Temple,
2 Rand. 398, 14 Am. Dec. 790, arguendo.
Criticised in dissenting opinion in Land v. Jeffries, 5 Rand. 233.
Distinguished in McCandlish v. Keene, 13 Gratt. 637, creditor must have
some lien, by judgment or otherwise ; Harmon v. Oberdorf er, 33 Gratt. 503,
against principal case in view of change in statute expressly changing rule;
Thomas v. Gaines, 1 Gratt. 357, 358, holding deed of marriage settlement
not recorded, void as to creditors of husband, though he joined therein.
Cited as authority for a construction since altered by statute ii^ Snyder v.
Martin, 17 W. Va. 287, holding void a grant of land by parol accompanied
hy delivery of possession as to creditor of grantor's heir. See also Ander-
son v. Anderson, 2 Call. (Va.), 207, note. ■ /
345 KEMP'S LESSEE v. KENNEDY. 6 Cr. 173-187
Wliaro the i^pUcatioii of a law works an injury* the remedy is in the legi»
latiire» not in the court.
Cited in Alvord v. Lent, 23 Mich. 373, following rule.
Miscellaneous. Erroneously cited in 1 Wash. Ter. 277, and in 13 Ga. 76.
6 or. 178-187, 3 I.. Bd. 70, KEMP'S LESSEE Y. KBNNEDY.
United States courts are courts of limited Jurisdiction.
CSted in Brown v. Noyes, 2 Wood. & M. 79, Fed. Cas. 2023, and Luding-
ton v. The Nucleus, 15 Fed. Cas. 1095, holding pleadings must allege facts
showing jurisdiction; Fideliter v. United States, 1 Sawy. 156, 1 Abb. 579,
Fed. Cas. 4755, so in admiralty seizure must be alleged; United States v.
New Bedford Bridge, 1 Wood. & M. 406, Fed. Cas. 15,867, presumption is
against jurisdiction; In t0 Booth, 3 Wis. 180, and they are strictly limited
to jurisdiction conferred by statute; La^^ v. Benedict, 73 N. Y. 35, 29
Am. Rep. 94, Circuit Court is a court of limited jurisdiction but not an
inferior court. But, jurisdiction having once been conferred,, it will not
be presumed taken away unless intention is plain. United StatSff v. Shaw,
39 Fed. 433. ' , ' .
Judgments of inferior United States courts are erroneous, but not void if
proceedings fail to show Jurisdiction!
Approved in Edelstein v. United States, 149 Fed. 638, judgment of bank-
ruptcy courts are not collaterally attackable; iMcCormick v. Sullivant, 10
Wheat. 199, 6 L. Ed. 302, holding such a judgment valid between the
parties until reversed; Kennedy v. Geoi^a Bank, 8 How. 611, 12 L. Ed.
1219, and Dowell v. Applegate, 152 U. S. 337, 38 L. Ed. 467, 14 Sup. Ct.
615, holding they may not be impeached collaterally; in the following:^
Baker v. Biddle, 1 Bald. 406, Fed. Cas. 764, Farmers' Loan v. McKinney,
6 McLean, 9, Fed. Cas. 4667, Brown v. Noyes, 2 Wood. & M. 80, Fed. Cas.
2023, holding such a judgment is not a nullity though reversible on direct
attack; Bank of United States v. Moss, 6 How. 39, 12 L. Ed. 335, and
until reversed must be enforced; Ex parte Watkins, 3 Pet. 203, 7 L. Ed.
653, extends rule to criminal cases; Cuddy, Petitioner, 131 U. S. 284, 33
L. Ed. 156, 9 Sup. Ct. 704, to contempts; In re Osterhaus, 18 Fdd. Cas. 895,
to judgments of territorial courts; Ward v. Cozzens, 3 Mich. 258, to pro-
cess of Circuit Courts. Cited in general discussion, in Ex parte Lennon,
64 Fed. 322, 22 U. S. App. 561, Fisher v. Rutherford, 1 Bald. 193, Fed.
Cas. 4823.
Rule does not apply where record shows court was y wholly without juris-
diction. Moore v. Edgejfield, 32 Fed. 501; dissenting opinion in McNutt v.
Bland, 2 How. 22, 11 L. Ed. 164, proceedings of Circuit Court are erro-
neous unless jurisdiction shown.
Subsisting judgment of a court of competent Jurisdiction is valid until
reversed.
Approved in In re Holling, 229 Fed. 351, following rule; United States
V. Morse, 218 U. S. 506, 21 Ann. Gas. 782, 54 L. Ed. 1128, 31 Sup. Ct.
37, decree of Supreme Court of District of Columbia for sale of infant's
6 Cr. 173-187 NOTES ON U. S. REPORTS. 346
real property for purposes of reinvestment, was not opto to collateral
attack; Alexander v. CroUott, 199 U. S. 581, 50 L. Ed. S17, 26 Sup. Ct.
161, New Mexico territorial Supreme Court is justified in refusing to re-
strain justice of peace from further proceedings in unlawful detainer,
where right of appeal exists; Loeser v. Savings Deposit Bank etc. Co., 163
Fed. 214,-89 C. C. A. 642, refusing to expunge erroneous judgment on motion
at subsequent term, although jurisdiction was not shown on record; Taylor
V. Huntington, 34 Wash. 458, 459, 75 Pac. 1105, judgment of court of gen-
eral jurisdiction foreclosing tax lien not vacated in motion because affida-
vit of publication of notice defective; Cooper v. Reynolds, 10 Wall. 316,
19 L. Ed. 932, Wyman v. Campbell, 6 Port. 238, SI Am. Dec. 686, Rodsrers
v. Evans, 8 Ga. 145, 52 Am. Dec. 391, Haywood v. Collins, 60 111. 342;.
dissenting opinion in Horner v. Doe, 1 Ind. 133, 48 Am. Dec. 358, all hdld-
iifg that erroneous judgment is not open to collateral attack; Harvey v.
Tyler, 2 Wall. 340, 342, 343, 17 L. Ed. 873, 874, unless it be affirmatively
shown that they have no jurisdiction; White v. Crow, 110 U. S. 189, 28
L. Ed. 116, 4 Sup. Ct. 74, even where error consists in entry before expira-
tion of statutory period; Birdsall v. Phillips, 17 Wend. 468, or where error
involves a finding as to a jurisdictional fact; Telford v. Ba'mey, 1 G.
Greene, 589, rule extends to all judicial acts of court of competent juris-
dic(;ion; Kittredge v. Emerson, 15 N. H. 263, and to judgments of sister
States; State v. Middlesex, 15 N. J. L. 71, to erroneous process; Quesen-
berry v. Barbour, 31 Gratt. 500, and Jackson v. Astor, 1 Pinn. 158, 39 Am.
Dec. 291, following rule; Camberford v. Hall, 3 McCord (S. C), 346, hold-
ing that garnishee cannot take advantage of errors in suit against original
debtor; Applegate v. Lexington Mfg. Co., 117 U. S. 269, 29 L. Ed. 896,
6 Sup. Ct. 748, Wright v. Marsh, 2 G. Greene, 114, and Boker v. Chapline,
*12 Iowa, 206, all holding every presumption not inconsistent with the
record will be indulged in favor of the jurisdiction of such a court; Diehl
V. Page, 3 N. J. Eq. 147, and State v. Lewis, 22 N. J. L. 566, rule extends
to case where special powers are conferred on court of general jurisdiction
and every intendment is in favor of the judgment. The following have
been held courts of general jurisdiction within the rule: Borden v. State,
11 Ark. 552, 54 Am. Dec. 242, Johnson v. Beazley, 65 Mo. 259, 27 Am. Rep.
281 , Guilford v. Love, 49 Tex. 742, Probate Courts , Pittenger v. Pittenger,
3 N. J. Eq. 167, Orphans' Court, Fprt v. Stevens, l7 Wend. 484, 485, Court
of Common Pleas, Russell v. Lewis, 3 Or. 383, a County Court in probate,
matters, and Gresham v. Ewell, 85 Va. 6, 6 S. E. 702, a County Court.
Cited in general discussion in Lincoln v. Tower, 2 McLean, 478, Fed. Cas.
8355, Hunt's Heirs v/ Ellison's Heirs, 32 Ala. 196, 199, Mosely v. Tuthill,
45 Ala. 652, 6 Am. Rep. 718, Morewood v. Hollister, 6 N. Y. 315, James
V. Smith, 2 Sup. Ct. 187, Francis v. Washburn, 5 Hayw. ^Tenn.) 301.
On the other hand, it has been held in Tolmie v. Thompson, 3 Cr. C. C.
137, Fed. Cas. 14,080 (afterward reversed, 2 Pet. 157, 7 L. Ed. 881), Moi-se
v. Presby, 25 N. H. 302, and Werz v. Werz, 11 Mo. App. 35, that where
a special jurisdiction has been conferred oi^ a court of general jurisdiction
the rule does not apply; Van Doren v. Horton, 25 N. J. L. 207, a court
of limited jurisdiction must cause jurisdiction to be shown on the face
I
/
347 MARINE INS. CO. OF ALEXANDRIA v. YOUNG. 6 Cr. 187-191 /
of the proceedings (Clark v. Holmes, 1 Doug. (Mich.) 394), or its judg-
ment is open to collateral atiack;/ Ex parte Kearny, 55 Cal. 215, 216,
Police Conrts are courts of inferior jurisdiction; Russell v. Work, 35
N. J. L. 320, Camp v. Woods, 10 Watts, 120, 122, Justices' Courts^ Young
y. Rathbone, 16 N. J. Eq. 227, 84 Am. Dec. 153, where a judgment is not
merely erroneous, but a usurpation of jurisdiction, rule does not apply;
Hart V. Seixas, 21 Wend. 55, 57|. jurisdiction will ^not be presumed upon
appeal.
Inferior courts are technically those whose Judgments are subject to re-
Tlsion, bat they are not necessarily courts of special and limited Jurisdiction,
whose judgments are disregarded unless their proceedings show Jurisdiction.
Definition cited and approved in Nugent v. State, 18 Ala. 524, La Croix
V. Commissioners, 49 Conn. 596, and State v. Fillebrown, 2 S. C. 407*
Cited in Fox v. Hoyt, 12 Conn. 497, 31 Am. Dec. 763, questioning whether
Justice's Court is one of special and limited jurisdiction; Keni^edy v.
Greer, 13 HI. 452, holding Circuit Courts in Illinois not inferior; Lange
V. Benedict, 73 N. Y. 35, 29 Am. Rep. 94; United Staiiea Circuit Court is
not inferior; Supervisors v. Le Clerc, 3 Finn. 325,( County Court in Wis-
consin are. Cited in general discussion in Gay v. Lloyd, 1 G. Greene, 85,
46 Am. Dec. B04, Seymour v. Bailey, 66 111. 297, The Fideliter, 1 Abb. 579,
1 Sawy. 156, Fed. Cas. 4755, Waters v. Randall, 8 Met. 134, Clark v.
Holmes, 1 Doug. (Mich.) 394, Curtis v. Leavitt, 15 N. Y. 229, Waller v.
Condray, 2 Yerg! 173, Maskall v. Maskall, 3 Sneed, 209.
Oonrt liaTlng Jurisdiction nuy decide every question which arises in case.
Approved in Hall v. Ames, 182 Fed. 1014, while State court had juris-
diction over subject matter of suit involving trust agreement, bill in
Federal court could not be maintained.
Judgments of courts of special and limited jurisdiction are not exempt
ftom collateral attack.
Approved in City of Hartford v. Poindexter, 84 Conn. 131, 79 Atl. 83,
applying rule to acts of municipal authorities in laying out and altering
streets and establishing building lines; Hull v. Burr, 64 Fla. 88, 59 South.
788, collateral attack cannot be made in State court upon proceedings of
Federal court in bankruptcy; Crawford v. Lees, 84 N. J. Eq. 332, 93 Atl.
204, in suit to construe trust created by will> grant or probate by sur-
rogate is not a judgment of an inferior court subject to collateral attack.
What irregularitieft and defects will avoid attachment. Note, 79 Am.
Dec. 164. ^
5 Or. 187*191, 3 I.. Ed. 74, MASIKE IKS. CO. OF AI^ZANDBIA v. YOUNO.
Befusal by lower court to grant motion for new trial is not assignable error.
Approved in Victor American Fuel Co. v. Tomljanovich, 232 Fed. 666,
refusing to review on appeal the question whether the evidence supported
plaintiff's contention or was against it; Yarber v. Chicago etc, Ry. Co.,
235 111. 599, 85 N. £. 932, in the Federal courts the appellate tribunal
V,
N
/
5 Cr. 191-234 NOTES ON U. S. REPORTS. 348
will not look into the evidence to determine whether or not it sustains
the verdict J Pomeroy's Lessee v. Bank, 1 Wall. 598, 17 L. Ed. 640, declin-
in<^ to entertain bill of exceptions to ruling of lower court, denying mo-
tion for new trial; Wright v. Lessee, 1 Pet. 169, 7 L. £d» 98, applying
principle to granting of motion to amend pleadings by lower court, re-
fusing to entertain writ of error therefor; Railway Co. v, Twombly, 100
U. S. 81, 25 L. Ed. 550, refusing to entertain writ of error for refusal
to grant new trial; Earnshaw v. United States, 146 U. S. 68, 86 L. Ed.
889, 13 Sup. Ct. 15, holding exercise of discretion by appraisers in refus-
ing to postpone reappraisement of imported goods in absence of importer^
not subject to review; Willis v. Board, 86 Fed. 877, where Circuit Court
of Appeals refused to review denial of motion to grant new trial ; Chouteau
V. Consoue, 1 Mo. 351, refusing to entertain writ 6f error to correct the
decision of lower court claimed to be contrary to evidence, because if error,
it was error in fact; M'Courry v. Doremus, 10 N. J. L. 249, holding refusal
of lower to continue cause not error, for which writ of error will lie;
Crawford v. Railroad Co., 28 N. J. L. 482, holding refusal to grant leave
to amend as to matters of substance not assignable error; Law v. Merrills,
6 Wend. 278, refusing to reverse judgment for refusal to grant a new trial.
Cited, generally, in Ringgold's Case, 1 Bland Ch. 9.
Distinguished in Jones v. Van Zandt, 5 How. 224, 12 L. Ed. 126, enter-
taining, jurisdiction of cause on certificate of division of opinion in Circuit
Court, where division not upon questions urged as reasons for new trial;
United States v. Chicago, 7 How. 191, 12 L. Ed. 668, entertaining juris-
diction on certificate of division where question of right invoired in deter-
mining motion for preliminary injunction; Goldsby v. Roberstoai, 1 Blackf.
(Ind.) 22, holding refusal to grant motion for new trial assignable as
error where new trial was a matter of right; Gilliland v. Rappleyea,
15 N. J. L. 143, holding writ of error did lie where, after order granting
plaintiff a new trial, he was non prossed and judgment subsequently
entered for defendant; different rule announced in Sorrel v. St. Julien,
4 Mart. (0. S.) (La.) 509, where the Supreme Court of Louisiana enter-
tained appeal from order denying new trial on ground that it was a court
of appeals, not merely a court of error.
5 Or. 191-234, 3 I*. Ed. 76, BODLEY et aL ▼,. TAYI.OS.
tTnited States Supreme Court, following State practice, will take Juriadic-
tion as court of equity of suit setting up equitable against legal land title.
Approved in Sawyer v. Gray, 205 Fed. 162, following rule; Brush v.
Ware, 15 Pet. 105, 10 L. Ed. 677, where court went behind patent and
examined equitable title, in view of peculiar system of Virginia, Ken-
tucky and Ohio ; Lorman y. Clarke, 2 McLean, 575, Fed. Cas. 8516,^ holding,
when a right created by statute existed in Michigan enforceable only
in equity, the Federal court would take equitable jurisdiction to give
eifect thereto; Reed v. Bullock, Lit. Sel. Cas. 514, 12 Am. Dec. 349, holding
entry for land gave an equitable right which could be feet up in a court
of chancery; Davis v. Fletcher, 11 La. Ann. 506, holding court had juris-
diction to quiet title in equitable owner against one who held legal title;
349 BODLEY ET AL. v. TAYLOR. S Cr. 191-234
Ludelling v. Vester, 20 La. Ann. 4'36, holding court could go behind patent
and investigate "validity of conflicting titles' from their inception ; Stephen-
son y. Smith, 7 Mo. 619, where court of equity took jurisdiction of bill
to enjoin ejectment where equitable title set up against legal title of
defendant which was alleged to be based on fraud; Lamont v. Stimson,
3 Wis. 556, 62 Am. Dec. 701, holding equity could go behind patent and
decree legal title to person having equitable right; Taylor v. Brown, 5
Cr. 255, 256, 3 L. Ed. 94, where court took jurisdiction where equitable
set up against legal title.
Denied in M 'Clung v. Hughes, 5 Rand. 475, holding that in absence of
fraud court would not go behind patent to determine title.
Distinguished in Maguire y. Tyler, 40 Mo. 439, denying jurisdiction
of court of equity, where junior patent based on confirmation in 1810,
attempted to be set up against elder patent based on claim filed in 1806.
In all cases in which equity takes Jurisdiction it will exercise that Juris-
diction in conformity wltli settled i^lnciples of coort of chancery.
Cited in Ex parte Crane, 5 Pet. 210, 8 L. Ed. 100, dissenting opinion,
contendiQg that exercise of jurisdiction conferred by Congress on Federal
courts should^. be in conformity with settled principles of common law,
equity and admiralty, not with the usages, principles and practice of
State courts; Hall y. Mining Co., 1 Woods, 547, Fed. Caa. 6955, holding
that a Georgia statute providing equitable relief could not be adminis-
tered by a Federal court, because the mode of proceeding prescribed by
the statute was a legal proceeding; Brown v. Buck, 75 Mich. 278, 13 Am.
St Rep. 441, 42 N. W. 828, holding unconstitutional a statute which at- •
tempted to transfer the cognizance of equitable questions to a jury;
Pittsburgh Co. v. Keokuk Co., 68 Fed. 21, 46 U. S. App. 530, holding that
the existence of a legal remedy by State law d^es not oust Federal court
in such State of its equitable jurisdiction when by the settled principles
of equity the question is an equitable one; Cropper v. Cobum, 2 Curt.
472, Fed. Cas. 3416, holding that State law by providing a legal remedy
cannot deprive parties entitled to come into Federal courts of a remedy
which would otherwise exist in equity.
Federal courts conform to State decisions, respecting State laws.
Approved in Green y. Neal, 6 Pet. 296, 8 L. Ed. 404, where United States
Supreme Court conformed to decision of State court upon State statute
of limitations; Prentice v. Zane, 19 Fed. Cas. 1272, in argument to sup-
port decision that Federal court in Pennsylvania should adopt construc-
tion of State statute by State court; Lorman v. Clarke, 2 McLean, 575,
Fed. Cas. 8516, where a right created by statute in Michigan was enforce-
able only in equity there, the Federal court took equitable jurisdiction
to give effect thereto ; Vaughan v. Phebe, Mart & Y. 24, 17 Am. Dec. 779,
holding construction of Virginia law by Virginia court authority for
Tennessee court.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removed to. Federal courts.
Note, 40 L. R. A. (N. S.) 417.
/
5 Cr. 234-256 NOTES ON U. S. REPORTS. . 350
\
Only such reasonable certaihty of entry required as will enable gabsequent
locator by exercise of due Judgment and diligence to locate bis own lands on
adjacent residunm.
Cited in McNeel v. Herol/dy U Gratt. 314, in determining conflicting
boundaries.
Wbere description begins on road and calls for distance from given point
on road, distance measured according to meanders of road.
Rule applied in Preeble v. Vanhoozer, 2 Bibb, 120, construing entry to
determine boundary where claims conflicting.
Where one call in entry is vague and uncertain, but there is enough that
is certain to determine location, vague part will be discarded, but certaiQ part
wlU not be vitiated by it.
Approved in Cochran v. Schreiber, 107 Fed. 375, construing land do-
aoription in verdict in trespass to try title.
Miscellaneous. Cited in Ex parte Crane, 5 Pet. 200, 8 L. Ed. 96, as
precedent for considering jurisdictional questions flrst; Walden v. Bodley,
14 Pet. ]69, 10 L. Ed. 400, and Walden v. Bodley, 9 How. 36, 13 L. Ed. 36,
referring to principal case as growing out of same transactions; Bayard
V. McLane, 3 Harr. 233.
r
5 Cr. 234-256, 3 L. Ed. 88, TAYLOB V. BBOWK.
Certificate of surveyor is snlficient evidence that warrant was in hands of
surveyor at time of survey.
Cited in Craig v. Radford, 3 Wheat. 597, 4 L. Ed. 468, following rule;
Cragin v. Powell, 128 U. S. 699, 32 L. Ed. 569, 9 Sup. Ct 206, holding
courts have no power to correct surveys except by a direct proceeding;
Cohas V. Raisin, 3 Cal. 448, holding that where alcalde of San Francisco
granted lands during war with Mexico, grant presumed to be regular;
Lamboum v. Hartswick, 13 Serg. & R. 122, to effect that where survey
regularly returned and party has been in possession for time analogous
to statute of limitations, presumption is in favor of reg^arity of pro-
ceedings.
Virginia act of 1748, requiring surveyor to record survey within two
months, is directory merely. v
Approved in Craig v. Radford, 3 Wheat. 597, 4 L. Ed. 468, holding
same act directory as to provision therein requiring surveyor "to see
the land plainly bounded by natural bounds or marked trees''; Stringer
v. Lessee etc., 3 Pet. 339, 340, 7 L. Ed. 699, 700, holding subsequent Vir-
ginia act containing similar provision merely directory and legal title
not affected by failure to comply therewith; Garrard v. Silver Peak Mines,
82 Fed. 590, holding a location and record of the survey, though not
within time specified by act of Congress, valid against one who attempts
to acquire adverse title twenty years afterward; County of Riddle, 51
Tex. 366, holding survey not forfeited when return not made as required
by statute.
\
351 TAYLOR v. BROWN. 6 Cr. 234^256
It is not necessary under Virginia statute tbat deputy surveyor who made
snnrey should make out plat and certify it. ^
Approved in Craig v. Radford, 3 Whe&t. 597, 4 L. Ed. 468, holding
principal surveyor could legally make and certify plat of survey made
by his d^fiased deputy.
Title commences with survey which is the appropriation. '
Cited in Ashley v. Cramer, 7 Mo. 102, holding title never acquired,
where survey never made y McAfee v. Keim, 7 Smedes & M. 789, 45 Am.
Dec. SSS, holding patent related back to equitable title acquired by settle-
ment and entry; Silver etc. Co. v. Clark, 5 Mont. 423, 5 Pac. 581, and
Talbot V. King, 6 Mont. 108, 9 Pac. 442, holding junior patent related
back to prior location; Wardwell v. Paige, 9 Or. 524, where location made
under State law on United States public lands before selection by State,
and subsequently and after selection defendant obtained legal titlOj held
that he was trustee for first locator.
Patent as evidence of title. Note, 12 Am. Dec. 668.
Courts can neither make nor correct surveys.
Approved in Murphy v. Tanner, 176 Fed. 543, 100 C. C. A. 125, correct-
ness of United States survey could not be attacked by homestead claim-
ant in action of ejectment brought by one having title by United States
patent.
Where one watches for accidental mistakes of others to take advatftage
of them, equity wlU not enforce advantage gained.
Cited in Cragin v. Powell, 128 U. S. 700, 32 L. Ed. 569, 9 Sup. Ct. 206,
dismissing petition where plaintifEs, discovering error in survey, obtained
grant describing land by quantity, township and section and sought to
recover from parties holding under old erroneous survey; Deweese v.
Reinhard, 165 U. S. 393, 41 L. Ed. 760, 17 Sup. Ct. 843, dismissing bill to
enjoin ejectment where plaintiff with knowledge of defendant's posses-
sion sought to take advantage of an error.
Equity will entertain jurisdiction to estahlLA prior equitable title against
mbsequent legal title.
Approved in Stephenson v. Smithy 7 Mo. 619, entertaining jurisdiction
of bill to establish equitable against legal title where latter claimed to have
been founded on fraud; McAfee v. Keim, 7 Smedes & M. 789, 45 Am.
Dec. 333, holding equitable title acquired by settlement, and patent related
back to it; Mc Arthur v. Phoebus, 2 Ohio, 420, when court went behind
elder patent and examined equities of parties; Maguire v. Tyler, 40 Mo.
439^ arguendo.
Denied in Virginia by M 'Clung v. Hughes, 5 Itand. 476, holding patent
established title in absence of fraud; French v. Successors of Loyal Co.,
5 Leigh, 666, refusing to entertain bill setting np equitable title against
patent.
In queetlons respecting title to real estate Federal oonrts will follow ded-
BionB of State courts.
6Cr.257-26i NOTES ON U. S. REPORTS. 352
Cited in Prentice v/Zane, 19 Fed. Gas. 1272, where decisions of Penn-
sylvania courts construing Pennsylvania statute regarded as authority;
Vaughan v. Phebe, Mart. & Y. 24, holding Virginia court's construction of
Virginia statute authority in Tennessee; Green v. Neal, 6 Pet. 296, 8 L. Ed.
404, overruling former decision construing Tennessee statute**^ limita-
tions to conform to subsequent construction of Tennessee couf£.
Questions of State law as to which State court decisions most be
followed in actions originating in, or removed to. Federal courts.
Note, 40 L. R. A. (N. S.) 388, 417.
Survey not vitiated by including surplns laud.
Cited in Vanderslice v. Hanks, 3 Cal. 43, holding a grant from Mexican
government not vitiated because survey contained surplus; Houston v.
Pillow, 1 Terg. 488, holding title not vitiated, because survey included
too much. ,
^ Modified in Coan v. Flagg, 123 U. S. 126, 31 L. Ed. Ill, 8 Sup. Ct. 61,
holdiiig survey fraudulently including more than warrant calls for does
not give title against United States, and fraud presumed from very large
excess. , /
Miscellaneous. Cited, in Poole v. Nixon, 19 Fed« Cas. 999, 9 Pet. Appx.
770.
5 Cr. 257-261, S L. Ed. 94, T7NITED STATES v. ARTHUR.
tJpon demurrer judgment must be agi^inst party who committed the first
error in pleading.
^ Approved in Morton v. Kirk, 79 Fed. 291, where bill dismissed for sub- ^
stantial defect upon demurrer to response; Stoney v. McNeile, 1 McCord,
87, where defect in plea was fatal on demurrer to replication ; Potter
V. Titcomb, 7 Me. 323, adjudging replication bad for failure to allege
fraud ;, Hall v. Williams, 8 Me. 436, holding plea bad on general demurrer
to rebutter; Will v. Mattherson, 2 G. Greene, 186, where, on demurrer
to replication, plea held bad because statute of limitations pleaded, which
was not a bar; Anderson v. Barry, 2 J. J. Marsh. 269, where sufficiency
of declaration examined on demurrer to plea.
Distinguished in Aurora v. West, 7»Wall. 93, 19 L. Ed. 46, where objec-
tion as to mere matter of form- not fatal to replication on demurrer to
rejoinder; Jackson v. Rundlet, 1 Wood. & M. 383, Fed. Cas. 7145, re-
versing and remanding where fault not cured by verdict.
A plea of performance of condition of a bond, without oyer, is bad on
demurrer.
Cited in Anderson v. Barry, 2 J. J. Marsh. 278, in argument of court
that declaration was good, notwithstanding want of profert, to show that
oyer may be craved, nevertheless; Clancy v. Dickey, 2 Hawks (N. C), 515,
arguing that bond is not in the record, though profert made, if no oyer
craved. See also Polk etc. v. Bull, 1 Harr. 437, note.
Distinguished in State v. Mayugh, 13 Md. 378, holding such defect can
be availed of only by special demurrer.
353 ^EP^URN V. AULD. * 6 Cr. 262-280
5 Cr. 262-280, 3 L. Ed. 96, HEPBtTBN v. AULD.
After long possession in severalty deed of partition will be presumed.
Approved in Scott v. Evans, 1 McLean, 489, Fed. Cas. 12,629, holding:
where statute of limitations was not applicable by reason of nonresidence,
plaintiff's title was nevertheless barred by lapse of tiiae; Beardslee vi
French, 7 Conn. 128, 18 Am. Dec. 88, where long nonuser of highway held
evidence of abandonment ; Gaines v. Conn 's Heirs, 2 J. J. Marsh. 107, where
conveyance presumed from thirty years' possession by purchaser who held
bond for title; Kingston v. Leslie, 10 Serg. & R. 391, holding admissible,
evidence of long possession upon which to presume conveyance; Hanes
V. Peek, Mart. & Y. 233, where title presumed from more thirty years'
possession. /
Distinguished in Ransdale v. Grove, 4 McLean, 284, Fed. Cas. 11,670,
where mere possession for long time held not ground for the presumption
when inconsistent with the evidence.
l^ecific performance of part of contract for sale of land denied where
Tender fails to give good title to rest and it is not fit subject fojr compensation.
Approved in^ Wesley v. Eells, 177 U. 9. 376, 44 L. Ed. 812, 20 Sup. Ct.
664, holding that specific performance of executory contract will not be
decreed where doubt exists; Blanton v. Ky. Distilleries and Warehouse
Co., 120 Fed. 369, holding tender of deed by vendor not essential to specific ,
performance; American Security & Trust Co. v. Muse, 4 App. D. Q, 24,
declaring against afi&rmance of sale where objections to title were not
unreasonable or frivolous; Wood v. Mason, 2 Cold. 253, holding vendee
of land entitled to rescission where vendor failed to give good title to
part ; Lewis v. Yale, 4 Fla. 438, where court refused to give compensation
because it was not a case where . specific performance could have been
granted; Thompson v. Gould, 20 Pick. 139, holding court could not decree
compensation where portion of consideration had failed by burning of
house on land; Gregoire v. Bulow, Riclf. Eq. Cas. 244, where court refused
to decree specific performance or grant compensation where there was
title outstanding to one-twelfth of the whole tract; Morgan v. Morgan,
2 Wheat. 299, 4 L. Ed. 244, where court refused to grant relief because
neither party able to give good title as to whole of his tract.
Modified in Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo.
701, 14 Ann, Cas* 652, 111 S. W?487, even vendee may enforce contract in
part and extort compensation for mistaken description by which he was
deceived.
Vendor may compel specific performance of contract for sale of land If
al>le to give good title to whole thereof at date of decree, tbougli he could not
have done so at proper time for performance.
Approved in Hosmer v. Wyoming Ry. & I. Co., 129 Fed. 892, 66 L. R. A.
81, applying rule to sale of mining property; Gibson v. Brown, 214 111.
336, 73 N. E. 680, applying rule to exchange of realty for stock of mer-
chandise; Md. Construction Co. v. Kuper, 90 Md. 542, 46 Atl. 199, holding
removal of encumbrance at time of decree is sufficient for specific per-
formance; Scaver v. Hall, 50 Neb. 884, 70 N. W. 376, holding vendor may
I — 28
I
\
i
5 Cr. 262-280 NOTES ON U. S. REPORTS. 364
tender good title at any time prior to decree for specific performance;
Armstrong v. Maryland Coal Co., 67 W. Va. 611, 69 S. E. 205, if purchaser
refuses to ga on with contract, vendor may sue for specific performance,
though he may not be in position to perform at time of suit; Langwoith
• V. Taylor, 1 McLean, 401, Fed. Cas. 8490, holding where vendor guilty of
negligence himself and had acquiesced in delays of vendee, time not ma-
terial and court entertained bill for specific performance; Morgan v.
Morgan, 2 Wheat. 304, 4 L. Ed. 246, note discussing authorities; Wilson
v. Tappan, 6 Ohio, 174, holding complainants entitled to specific perform-
ance if they could make good title any time before decree; Linn v. Mc-
Lean, 80 Ala. 368, holding plaintiff, vendor, could make good title any
time before date of decree on bill in the oiature of specific performance ;
Chrisman v. Partee, 38 Ark. 60, where a mistake had b/feen made in de-
scription of property in deed tendered before trial, held plaintiff entitled
to specific performance if he tendered good deed before decree; Bracken-
ridge V. Dawson, 7 Ind. 387, holding offer of performance by vendor when
both parties in default and in absence of stipulation making time material
entitles him to decree when vendee brings suit for rescission; Tewksbury
V. Howard, 138 Ind. Ill, 37 N. E. 358, holding vendor entitled to specific
performance where good title made out before decree; Lancaster v^
Roberts, 144 HI. 225, 33 N. E. 30, holding, where time expressly made
material in contract to sell but subsequently waived by both parties and
vendor subsequently makes good title he is entitled to specific perform-
ance ; Steele v. Branch, 40 Cal. 11, holding where plaintiffs, vendees, agreed
to pay off mortgage on land when due, a short delay in paying, granted
by mortgagees, did not deprive them of right to specific performance;
Mathews v. Gillis, 1 Iowa, 254, holding plaintiff, vendee, entitled to specifio
performance where, though plaintiff guilty of lacl^es, defendant has not
acted on the contract as forfeited ; Manning v. Brown, 10 Me. 52, principle
applied where held under agreement to convey land on payment of notes at
maturity, when plaintiff sued on notes he waived stipulation as to time
in agreement to convey; Barnard v. Lee, 97 Mass. 94, holding plaintiff,
vendee, entitled to specific performance though he did not tender pay-
ment till some days after time fixed by contract; Davidson v. Moss, 5
How. (Miss.) 686, where rescission denied when asked for on ground of fail-
ure to give title, when title was made good before decree; Rodman v. Zilley,
1 N. J. Eq. 327, holding vendor entitled to specific performance though
deed not tendered till after day named in contract; Oakley v. Cook, 41
N. J. Eq. 364, 7 Atl. 503, where encumbrances on property at time of
contract in violation thereof no bar to specific performance if cleared off
before decree; Fletcher v. Wilson, 1 Smedes. & M. Ch. 389, holding that
though vendor could not give title at time of contract aad sale, vendee
not entitled to rescission when title perfected by time of hearing; Wiswall
V. McGowan, 1 Hoff. Ch. 134, holding plaintiff entitled to specific perform-
ance where defendant had extended time by parol; Gregoire v. Bulow,
Rich. Eq. Cas. 242, where court of equity took jurisdiction of suit for
specific performance, notwithstanding plaintiff could not give good title
at time of contract; 8eymour v. Delancy, 3 Cow. 519, 15 Am. Dec 284,
355 HEPBURN v. AULD. 5 Cr. 262-280
holding failure to give title on day when contract was to |)e performed
not a bar to specific performance ; Tufts v. Tufts, 3 Woofl. & M. 474, Fed.
Cas. 14,233, buti court declined to decide whether case was within the rule.
Distinguished in Day v. Mountin, 137 Fed. 762, 763, 70 C. C. A. 190, con-
tract 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; Qarnett v.
Macon, 2 Brock. 247, Fed. Cas. 5245, 6 Call, 371, holding time material
because of fall in price and bill dismissed; Sneed v. Wiggins, 3 Ga. 99,
holding time material, when payments of installments required ^o be on
named days; Glass v. Rowe, 103 Mo. 539, 15 S. W. 341, wjiere bill dis-
missed because time had been expressly made of the essence of the con-
tract; Curtis V. Blair, 26 Miss. 327, 59 Am. Dec. 262, where time held mate*
rial because expressly made so, and bill, therefore, dismissed; Inman v.
Insurance Co., 12 Wend. 461, where time held material where by policy
plaintiff being required to notify defendants forthwith of destruction of
property, waited several weeks.
Right to specific performance with compensation of contract for sale
of land. Note, Ann. Oas. 1915D, 1108, 1115.
Right of vendor whose title is defective to specific performance upon
condition of' compensation or indemnity. Note, 52 L. B. A. (N. S.)
968.
Lapse of time not dlaregarded in equity.
Cited in Taylor v. Williams, 2 Colo. App. 563, 3iPac. 505, holding failure
of vendor to produce abstract showing clear title by day agreed on not
eured by subsequently showing defeats disclosed by abstract do not exist
in fact; Green v. Covillaud, 10 Cal. 328, 70 Am. Dec. 738, holding where
culpable neglect in vendees in l3dng by for rise in price is shown, they can-
not have specific performance; Rogers v. Saunders, 16 Me. 101, 33 Am.
Dec. 642, holding time material where great change in value has occurred ;
Richmond v. Gray, 3 Allen, 30, where plaintiff held not entitled to specific
performance when he could not make good title at time fixed in contract
thoogh he could do so before decree; Goldsmith v. Guild, 10 Allen, 242,
where held plaintiff not entitled to specific performance when contract by
its terms to be performed in ten days and he did not perform on his part
within that time; Barnard v. Lee, 97 Mass. 94, arguendo.
Criticised in* dissenting opinion in Rogers v. Saunders, 16 Me. 109.
Equity cannot compel specific performance on terms and conditions, nor
ezecnte for part and assess damages as to residue.
Criticised in Clark v. Seirer, 7 Watts, 111, 82 Am. Dec. 748.
Tender of assignment of contract not vitiated by recital in assignment of
release of all demands where sach release would not impair rights of assignee.
Cited in Hepburn v. Dunlop, 1 Wheat. 184, 185, 4 L. Ed. 67, case grow-
ing out of the same transactions, in statement of facts by court.
Miscellaneous. Cited in Keats v. Rector, 1 Ark. 425.
'5 Cr. 280-283 NOTES ON U. S. REPORTS. 356
5 Cr. 280-281, 3 L. Ed. 101, UNITED STATES v. EVANS.
In case of yoljmtary nonsuit, writ of error will not lie, upon Jutlge's reftual
to reinstate case.
Approved in Willis v. Davis, 184 Fed. 890, 107 C. C. A. 211, reaffirming
rule; 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 involuntary nonsuit, he cannot take
error; Jones v. Kennedy, 81 Miss. 501, 33 South. 287, refusing to reinstate
voluntary dismissal of assumpsit; Marsh v. Graham, 6 Iowa, 78, where
plaintiff, after voluntary nonsuit, attempted, upon writ of error, to review
the rulings and decisions of the court below ; Andrews v. Bank, 77 Md. 29,
25 Atl. 917, where plaintiff neglected to summon his witnesses or in any
manner to prepare for trial, held that he might not appeal from judgment
of nonsuit; Ewing v. Glidwell, 3 How. (Miss.) 335, 34 Am. Dec. 97, where
plaintiff, voluntarily submitting to nonsuit, was not permitted to review
judgment on writ of error; Copeland v. Mears, 2 Smedes & M. 521, hold-
ing writ of error would not lie where plaintiff voluntarily accepted non-
suit upon the improper exclusion of his testimony; in general discussion
in Railway Co. v. Railway Co., 68 Tex. 108, 3 S. W. 566; Ringgold's Case,
1 Bland Ch. 9; Sorrell v. Julien, 4 Mart. (O. S.) 509. See also 12 Ind.
96, note ; 4 La. Ann. 439, note ; 6 La. Ann. 660, note.
Distinguished in Transportation Co. v. Pullman, 139 U. S. 3d, 36 L. £d.
61, 11 Sup. Ct. 480, holding rule otherwise in case of compulsory nonsuit ;
Gilliland v. Rappleyea, 15 N. J. L. 143, as a different case from that at bar.
Right of plaintiff to appeal from voluntary judgment of nonsuit.
Note, 9 Ann. Cas. 631, 633.
5 Cr. 281-283, 3 L. Ed. 101, YEATON v. UNITED STATES.
Appeal in admiralty suspends the sentence altogether.
Approved in Gilchrist v. Chicago Ins. Co., 104 Fed. 570, holding 26 Stat.
826, chapter 517, did not change rule as to admiralty appeals in Circuity
Court; Irvine v. The Hesper, 122 U. S. 266, 30 L. Ed. 1178, 7 Sup. Ct. 1182 ^
The Louisville, 154 U. S. 657, 26 L. Ed. 771, 14 Sup. Ct. 1191, Saratoga v.
Four Hundred and Thirty-eight Bales, 1 Woods, 79, Fed. Cas. 12,356,
United States v. Preston, 3 Pet. 66^ 7 L. Ed. 605, Folger v. Robt. Shaw, 2
Wood. & M. 540, Fed. Cas. 4899, Dixon v. Watkins, 9 Ark. 152, Hudson
V. Smith, 9 Wis. 126, Hughes v. Dundee Co., 11 Sawy. 558, 28 Fed. 43,
and Souter v. Baymore, 7 Pa. St. 418, 47 Am. Dec. 519, all refusing to
allow decree in admiralty which had been appealed from to be pleaded;
<»ited, discussing generally effect of appeals as vacating judgment of lower
courts, in Tyler v. Shea, 4 N. D. 385, 60 Am. St. Rep. 666, 61 N. W. 471 ,
Texas v. Smith, Dall. (Tex.) 409, Aetna Ins. Co. v. McCormick, 20 Wis.
272, State v. Johnson, 13 Fla. 46, and Palmer v. Conly, 4 Denio, 377, Bay-
ard V. McLane, 3 Harr. (Del.) 233, construing agreement for contingent
fee in admiralty cause; Braithwaite v. Jordan, 5 N. D. 252, 65 N. W. 720,
decree of lower court may be jenf orced pending appeal unless aecurity be
given.
I
357 YEATON v. UNITED STATES. 6 Cr. 281-283
When fUtnte antborlziiig forfeiture is repealed pending appeal, there can
be no decree of condemnation without special reservation in statute.
Approved in Pensacola etc. R. R. Co. v. State, 45 Fla. 89, 110 Am. St.
Rep. 68, 33 South. 986, following rule ; Gwin v. United States, 184 U. S.
676, 46 L. Ed. 749, 22 Sup. Ct. 529, applying rule and dismissing appeal;
United States v. Four Cases of Lastings, 10 Ben. 374, Fed. Cas. 15,145,
as an authority on the main proposition, but section 13 of Revised Stat-
utes modified this rule by providing that repeal of statute shall not re-
lease any penalty unless it expressly so provides; dissenting opinion in
State Bank v. Knoop, 16 How. 408, 14 L. Ed. 993, and Ex parte Larkin, 1
Okl. 55, 68, 11 L. R. A. 418, 25 Pac. 746, both arguendo. |
Effect of repeal of criminal statute after judgment. Note, 1 AiUL Oas.
220.
Aft«r expiration or repeal of law no penalty can be enforced or poniBb-
ment iniiicted for violationB of law committed while it waa in force.
Approved in People v. Bank of San Luis Obispo, 159 Cal. 69, 79, Ann.
Oas. 1912B, 1148, 37 L. R. A. (N. S.) 934, 112 Pac. 867, 868, 872, where
iiidsrment had become final while statute was in force, its finality is not dis-
turbed by pending motion for new trial; Atwood v. Buckingham, 78 Conn.
425, 62 Atl. 617, repeal of Gen. Stats. 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; Zintzmaster
V. Aikin, 173 Ind. 275, 90 N. E. 83, repeal of drainage law without saving
clause as to drainage proceedings required dismissal proceedings; State v.
VVhitbeek, 136 La. 899, 67 South. 950, and- State v. Hagen, 136 La. 885, 67
South. 940, both discharging persons convicted of maintaining nuisance,
where ordinance under which they were convicted was superseded by stat-
ute imposing severe penalty pending appeal; Terry v. McClung, 104 Va.
601, 52 S. E. 356, passage of act of 1888 depriving County Court of juris-
diction in void cases caused pending cases to lapse; dissenting opinion in
People V. McNulty, 3 Cal. Unrep. 462, 28 Pac. 824, majority holding law
amended pending appeal which imposed greater punishment than law re-
pealed was ex post facto^as to prisoners awaiting execution; Assessor v.
Osbomes, 9 Wall. 575, 19 L. Ed. 751, holding where jurisdiction depends
on statute, suits brought pending its existence abate with its repeal ; Mary-
land V. Baltimore, 3 How. 652, 11 L. Ed. 722, if State repeal a law imposing
penalty, it constitutes remission of penalty already incurred; Union Iron
Co. V. Pierce, 4 Bias. 332, Fed. Cas. 14,367, repeal of penal statute defeats
pending actions for penalties; United States v. Mann, 1 Gall. 182, Fed.
Cas. 15^718, penalties incurred under the embargo act are abrogated by
the repeal of the embargo ; Unfted States v. Van Vliet, 22 Fed. 643, penal
statute cannot be enforced after repeal, though offense was committed
before repeal; Moore v. United States, 85 Fed. 468, 56 U. S. App. 477,
conviction under penal statute applicable to territories cannot be had
after abrogation of the statute by admission of the territory, where offense
was committed as a State; State v. Tombeckbee Bank, 1 Stew. 349, penal-
ties incurred under statute, though before repeal, cannot be recovered
/
/
5 Cr. 281-283 NOTES ON U. S. REPORTS. 358
afterward; Pope v. Lewis, 4 Ala. 489, common informer cannot recover
penalty where statute has been repealed ; George v. State, 39 Ala. 677, per-
son cannpt be convicted of pffense committed while a slave under law
applicable only to slaves, when law ha6 been ^ince repealed by abrogation
of slavery ; First Nat. Bank v. Henderson, 101 Cal. 310, 36 Pac. 900, where
defense in nature of penalty is erroneously disregarded, repeal of statute
pending appeal cures error; Bank v. State, 12 Ga. 491, 493, right to a
penalty is not vested, but may be defeated by repeal of statute" before
judgment; Western Union v. Smith, 96 Ga. 571, 23 S. E. 900, judgment
for penalty will be set aside where statute is repealed after judgment
and order denying new trial but before expiration of time allowed by law
to except to order ; Coles v. Madison County, Breese, 158, 12 Am. Dec. 165,
county has no vested right in a penalty which may not be taken away
before judgment by repeal of statute creating the penalty; Thompson v.
Bassett, 5 Ind. 536, to same effect; Commonwealth v. Cain, 14 Bush (Ky.),
536, indictment for embezzling funds of bank quashed where, pending
proceedings, act creating penalty expires by limitation; Speckert v. Louis-
ville, 78 Ky. 290, repeal of statute defeats suit for penalty; State v. Balti-
more R. R. Co., 12 Gill & J. 437, 38 Am. Dec. 324, repealing of statute de-
feats suit for penalty; Keller v. State, 12 Md. 326, 71 Am. Dec. 597, repeal
of statute creating offense defeats criminal action at any tin'? prior to
final affirmance; Saco v. Gumey, 34 Me. 14, repeal of statute defeats suit
for penalty; State v. Edward, 5 Mart..(0. S.) 475, judgment ot forfeiture
will be reversed if statute creating forfeiture is repealed pending pro-
ceedings; Teague v. Mississippi, 39 Miss. 520, repeal of statute defeats
suit for penalty; Globe v. State Bank, 41 Neb. 181, 59 N. W. 684, rule
applies to suit to enforce any obligation imposed solely by statute; Lewis
V. Foster, 1 N. H. 62, repeal after judgment and before review defeats
action for penalty and judgment will be set aside in higher court; Belvi-
dere v. Warren R. R. Co., 34 N. J. L. 199, repeal of tax statute imposing
twelve per cent penalty for delinquency, prevents recovery of amount of
penalty, although original assessment may be enforced; Curtis v. Leavitt,
15 N. Y. 229, the right to a defense of usury may be taken away by repeal
of statute pending proceedings; Hartung v. People, 22 N. Y. 101, 109,
repeal of criminal statute imposing penalty, after conviction, entitles de-
fendant to reversal on appeal ; Allen v. Farrow, 2 Bail. 587, repeal defeats
a qui tam action; State v. Cole, 2 McCord (S. C), 3, repeal of statute re-
leases penalty imposed; Mahoney v. State, 5 Wyo. 524, 63 Am. St. Bep. 67,
42 Pac. 14, repeal of criminal statute, after conviction, pending appeal,
entitles defendant to dismissal of action; Sheppard v. State, 1 Tex. App.
524, 28 Am. Bep. 423, where penal statute is repealed pending appeal,
action must be dismissed; Butler v. Palmer, 1 Hill, 330, and Hunt v. Jen-
nings, 5 Blackf. 196, 33 Am. Dec. 466, where statute from which court
derives jurisdiction in particular case is repealed, the court cannot pro-
ceed under repealed statute even in suits pending at the time of repeal
unless repealing statute contains saving clause ; G. & 0. R. R. Co. v. Patton,
9 W. Va. 658, where procedure is changed pending appeal proceedings
should conform to the new law. "^
359 lYEATON V. UNITED STATES. 5 Cr. 281-283
Distinguished in Tinker v. Van Dyke, 1 Flipp. 527, Fed. Cas. 14,058, dis-
tinguishing hetween penalties imposed and rights conferred by statute;
Taylor v. Rushing, 2 Stew. 162, where penalty has accrued to a private
individual he has a vested right, which is not impaired by repeal of stat-
ute before recovery of judgment (which was afterward overruled in Pope
V. Lewis, 4 Ala. 493) ; United States v. Barr, 4 Sawy. 254, Fed. Cas..
Ufi27f rule has been changed by section 13 of Revised Statutes, so that
even a crime may be punished, notwithstanding subsequent repeal of the
statute constituting the act a crime; State v. Crusius, 57 N. J. L. 282, 31
Atl. 236, holding that a similar rule of construction has been enacted in
New Jersey ; Hargrove v. Chambers^ 30 Ga. 602, rule has no application to
liability of directors of bank imposed as penalty for violation of their
eharter, such a penalty subsists after expiration of the bank's charter;
State V. Taylor, 2 McCord (S. C), 490, where a statute has been repealed,
persons may be punished for offenses committed before its repeal ; NiclTolas
V. Commonwealth, 91 Va. 816, 22 S. E. 508, where jurisdiction to try cases
has been taken away after conviction, court is not deprived of power to
fix day for carrying sentence into effect, it being merely the execution of
an existing judgment.
Qualified in State v. Addington, 2 Bkil. 519, 28 Am. Dec. 152, holding
repeal after judgment will not defeat execution of sentence. ,
Effect of repeal of criminal statute. Note, 94 Am. Dec. 218. .
EfEgct of statutes to defeat or preserve pending civil actions. Note,
14 L. R. A. 722. i
Effect of repeal, upon prior conviction under penal statute or ordi-
nance. Note, 23 L. B. A. (If. S.) 245.
On appeal in admiralty cause in tiled de novo.
Approved in Munson S. 8. Line ▼. Miramar S. 8. Co., 167 Fed. 961, 962,
965, 93 C. C. A. 360, where one party did not appeal, appellate court was
not precluded from directing entry of a judgment more favorable to him;
The San Rafael, 141 Fed. 275, fact that claimants did not appeal does not
alter rule ; Chicago Ins. Co. v. Graham etc. Transp. Co., 108 Fed. 273, hold-
ing new pleadings and evidence may be permitted in admiralty appeals;
Prescott v: Brooks, 11 N. D. 100, 90 N. W. 132, construing Rev. Codes,
§5631; Anonymous, 1 Gall. 24, 25, Fed. Cas. 444, permitting amendment
in Circuit Court ; Jay v. Olney, 1 Wood. & M. 271, Fed. Cas. 7236, Circuit
Court may increase damages awarded by District Court ; The Philadelphia,
60 Fed. 426, 21 U. S. App. 90, additional proof may be introduced in Cir-
cuit Court of Appeals; Nelson v. White, 83 Fed. 217, and The M. M.
Morrill, 48 U. S. App. 660, holding record on appeal to Circuit Court of
Appeals must contain all the evidence so that case may be tried de'novo;
The Beeche Dene, 55 Fed. 527, 13 U. S. App. 211, su^ests that in prize
cases the cause is tried de novo in Supreme Court, in others the practice
has been modified by rule. On this point sep the following: Gedney v.
L'Amistad, 10 Fed. Cas. 151 , Vanderheyden v. Reid, 1 Hopk. Ch. 412 ,
Clarke v. Manchester, 56 N. H. 506, Sharon v. Sharon, 79 Cal. 647, 22
Pae. 30; Kennon y. Shull, 9 Ind. 156; Lyles v. Barnes, 40 Miss. 609 , Stal*
/
6 Cr, 284-288 NOTES ON U. S. REPORTS. | 360
bird V. Beattie, 36 N. H. 456, 72 Am. Dec. 318. Cited in general discus-
sion in the following: Leschi v. Washington Territory, 1 Wash. "Tr. 17,
People V. Townsey, 5 Denio, 72, Smith v. Hard, 59 Vt. 19> -8 Atl. 319,
Moore v. State, 43 N. J. L. 222, 39 Am. Rep. 574, Scott v. Watkins, 22
Ark. 564 , Cook v. Gray, 2 Houst. 475, 81 Am. Dec. 193 , Robinson v. Beall,
26 Ga 86 , Musgrove v. Vicksburg R. R. Co., 50 Miss. 681 , State v. Academy
'of Science, 13 Mo. App. 219, Johnson v. Hahn, 4 Neb. 147, Dartmouth
College V. Woodward, 1 N. H. 133 , Rii^Ji v. Flanders, 39 N. H. 388, dissent-
ing opinion.
Distinguished in Sims v. United States, 121 Fed. 517, holding Chinese
Exclusion Act was re-enacted by Rev. ^tats., § 13.
After dismissal of libel for forfeiture, property libeled will be restored to
claimants, they paying duties thereon if not already paid.
CUed generally in Whelan v. United States, 7 Cr. 112, 3 L. Ed. 286,
United States v. Wonson, 1 Gall. 14, Fed. Cas. 16,750, Steamship Co. v.
Joliffe, 2 Wall. 465, 466, 17 L. £d. 809, 810.
Denied in United States v. Five Hundred Boxes of Pipes, 2 Abb. (U. S.)
\ 501, Fed. Cas. 15,116, Supreme Court possesses no admiralty jurisdiction
to enforce payment of duties. ^
5 or. 2^4-287, 3 L. Ed. 102, UNITED STATES v. POTTS.
Oopper plates turned up at the edge are exempt from duty, thongli ^oported
as "raised bottoms."
" Cited in Hartranft v. Wiegmann, 121 U. S. 615, 30 L. Ed. lOlf, 7 Sup.
Ct. 1243, where shells cleaned by acid ai^d ground on an emery-wheeF were
exempt from dttty as "shells of every description, not manufactured";
Patton V. United States, 159 U. S. 509, 40 L. Ed. 237, 16 Sup. Ct. 92, hold-
ing wool, which had actually undergone the process of scouring, properly
classified as imported scoured, although not known commercially as scoured
wool ; New Orleans v. N. O. Coffee Co., 46 La. Ann. 89, 14 South. 503, hold-
ing a corporation producing "brands" of coffee, made by secret, non-
patented, roasting and cooling process^ is not manufacturer, nor exempt
as such from the payment of a license.
A change in the condition of a thing is not a "making."
Approved in In re I. Rbeinstrom & Sons Co., 207 Fed. 131, bankrupt
company which purchased cherries from Greece and Italy and prepared
them for future use was a manufacturing establishment.
What constitutes manufacture. Note, 14 L. E. A. 109.
Tajc^on manufacturing corporations. Note, 64 L. B. A. 88, 45.
6 Or. 287-288, 3 L. Ed. 103, BUSH v. PABKEB.
United States courts will grant time to produce affidavits aa to tlie Talue
of the matter in dispute.
Cited in Richmond v. City of Milwaukee, 21 How. 392, 16 L. Ed. 72,
holding affidavits as to value shall not be filed after the case has been
361 LOGAN V. PATRICK 6 Cr. 288-289
heard and dismissed for want of jurisdiction, nor at all, if value of prop-
erty appears in pleadings; The Grace Girdler, 6 Wall. 442, 18 L. Ed. 790,
to point that value of matter in dispute may be shown by affidavits filed
when question of jurisdiction is raised; Cattle Co. v. Needham, 137 U. S.
634, 34 L. Ed. 800, 11 Sup. Ct. 209, holding where the nature of the action
requires value of thing demanded to be stated in- pleadings, affidavits will
not be received 'to vary value appearing in record ; Davie v. Hey ward, 33
Fed. 94, holding where defendant applied for citation in writ of error with-
out stating value of his interest, while plaintiff's affidavit in opposition
showed amount, question of jurisdictional amount must be left to the
Supreme Court; in Ringgold's Case, 1 Bland Ch. 24, holding that affidavits
shall be received, as to value of matter in dispute, when that fact does not
appear in the record, in order to fix the amount of appeal bond. Cited
approvingly in Harman v. Lynchburg, 33 Gratt. 40, upholding appellate
jurisdiction where amount claimed exceeded jurisdictional amount,
6 Cr. 28S-289, 3 L. Ed. 103, LOGAN v. PATRICK.
Circuit Court has Jurisdiction to stay proceedings upon Judgment at law
l)etween same parties, though subpoena served on defendant in another district.
Approved in Brun v. Mann, 151 Fed. 150, 12 L. B. A. (N. S.) 160, 80
C. C. A. 513, reaffirming rule ; 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; Leigh v. Kewanee Mfg. Co.,
127 Fed. 992, holding where action at law pending in Federal Circuit Court,
fuch court had ancillary jurisdiction before judgment to entertain bill to
restrain further prosecution of such action on equitable grounds not avail-
able as defense to action at law, without regard to citizenship; Jones v.
Andrews, 10 Wall. 333, 19 L. Ed. 937, affirming jurisdiction of Circuit
Court of a bill in equity to enjoin garnishee proceedings at law irrespective
of the residence of the parties; French v. Hay, 22 Wall 252, 22 L. Ed* 858,
holding in case removed from State tp Circuit Court, Circuit Court may
enjoin the complainant from proceeding in any other court; Christmas v.
Russel, 14 Wall. 81, 20 L. Ed. 763, holding when no party to original suit
had any connection with filing the bu^ such bill is original and Circuit
Court has no jurisdiction between citizens of same State; Krippendorf v.
Hyde, 110 U. S. 281, 28 L. Ed. 147, 4 Sup. Ct. 29, holding where goods are
attached by process of the Circuit Court, third party claiming title to same
may file bill upon equity side of court, which proceeding will be considered
auxiliary; Hatch v. Dorr, 4 McLean, 113, Fed. Cas. 6206, holding creditor's
bill for discovery not an original proceeding and not affected by defend-
ant 's change of residence ; Cortez Co. v. Thannhauser, 20 Blatchf . 61, 9 Fed.
227, holding suits in equity, brought to stay the prosecution of suits at
law, dependent and supplementary merely; McBee v. Railroad Co., 48 Fed.
246, holding the jurisdiction of court unaffected^in an original bill in equity
supplementary to an ancillary foreclosure suit which it seeks to oppose;
Maitland v. Gibson, 79 Fed. 138, holding bill filed to enforce the payment
of costs against the plaintiff in an equity suit, may be treated as de-
pendent proceeding; McDonald v. Seligman, 81 Fed. 756, holding bill in
^'
5 Cr. 289-302 NOTES ON U. S. REPORTS. 362
equity to enjoin enforcement of a judgment obtained in Circuit Court,
is ancillary, and maintainable without diversity of citizenship; Towne v.
Smith, 1 Wood. & M. 120, Fed. Cas! 14,115, denying to assignee of insol-
vents the perpetual injunction against attachment issuing out of the Cir-
cuit Court; Dunlap v. Stetson, 4 Mason, 361, Fed. Cas. 4164, holding suit
for relief upon judgment an auxiliary proceeding; Clarke v. Navigation
Co., 1 Story, 640, Fed. Cas. 2859, sustaining jurisdiction of admiralty court
in proceeding in rem irrespective of residence of claimants; Williams v.
Byrne, Hempst. 473, Fed. Cas. 17,718, holding a bill to. enjoin judgment
in Circuit Court not an original bill; Freeman v. Howe, 24 How. 460,
16 L. Ed. 752, following rule; Davis v. Packard, 10 Wend. 55, scire facias
or recognizance is not original proceeding; Bank v. Leland, 17 Fed. Cas.
60, arguendo.
The entering of appearance by defendant 1b an admission of due and
efTectaal service.
Cited in Segle v. Thomas, 3 Blatchf . 15, Fed. Cas. 12,633, holding that
defendant appearing and answering bill in equity cannot object upon hear-
ing that he was not served with process; Flanders v. Insurance Co., 3
Mason, 160, Fed. Cas. 4852, holding corporation, having entered a general
appearance in suit brought in another State, waived objection to service;
Harrison v. Rowan, 1 Pet. C. C. 491, Fed. Cas. 6140, holding eleventh sec-
tion of judiciary act not denial of jurisdiction .but grant of privilege to
defendant, which he waives by voluntary appearance; Winans v. Railroad
Co., 6 Blatchf. 219, Fed. Cas. 17,862, holding where defendant corpora-
tion removed case to Circuit Court, and etttered appearance thereon. It
waived question of service ; Reinstadler v. Reeves, 33 Fed. 310, /holding
defendants, by formal appearance in another State waive right to service
in <listrict in which they reside ; Shainwald v. Davids, 69 Fed. 702, denying
sufficiency of service upon law firm in an original proceeding; Lee v.
Aetna Ins. Co., 15 Fed. Cas. 141, holding process of court served upon cor-
poration in another State, effectual where such corporation has filed con-
sent that process shall be valid if so served; Wilson v. Pierce, 30 Fed.
Cas. 154, to point that right to be served in district of residence is per-
sonal and may be waived by general appearance; Trinity etc. R. R. Co. v.
Brown, 91 Tex. 678, 45 S. W. 795, 46 S. W. 929, upholding jurisdiction in
a foreclosure proceeding obtained by such voluntary appearance; Picquet
V. Swan, 5 Mason, 571, Fed. Cas. 11,135, and Cortez v. Thannhauser, 20
Blatchf. 62, 9 Fed. 228, arguendo.
5 Or. 289-302, 3 L. Ed. 104, HARBISON ▼. 8TEBBY.
While law of place where contract is made is law of contract» xlglit of
priority is privilege dependent on place where property lies.
Approved in New Orleans Terminal Co. v. Hanson, 188 Fed. 642, 643,
110 C. C. A. 452, reaffirming rule; In re Brannock, 131 Fed. 820, record of
mortgage in State of mortgagor's residence is not notice to creditors of
mortgagor where property located in another State; Aultman & T. Mach.
Co. V. Kennedy, 114 Iowa, 447, 89 Am, St. Rep. 375, 87 N. W. 436, holding
363 HARRISON v. STERRY. 5 Cr. '289-302
chattel mortgages are governed by law of place whejte property is situated ;
Holshouser v. Gold Hill Copper Co., 138 N. C. 255, 70 L. R.'A. 183, 50 S. E.
653, New Jersey statute declaring that annual corporation license fee shall
be preferred debt in case of insolvency is not binding in another State;
Greenville Nat. Bank v. Evans-SnydernBuel Co., 9 Okl. 364, 60 Pac. 253,
mortgage executed 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. Tates, 112 Tenn. 313, 105 Am. St. Rep. 941, 64 L. R. A.
358, 79 S., W. 796, chattel mortgage executed and recorded in Illinois on
property iiafterward transferred to Tennessee does not give priority over
liens of local attaching creditors; Wall v. Norfolk etc. R. R., 52 W. Va.
494, 94 Am. St. Rep. 956, 44 S. E. 298, upon question of privity of rights
of connecting carriers under contract for use of cars over attachment «
creditors; Smith v. Union Bank, 5 Pet. 523, 8 L. Ed. 214, and Bank v.
Smith, 4 Cr. C. C. 35, 37, Fed. Cas. 14,362, holding priority of decedent's
debts to be determined by law of place where property is found; Bur-
rows V. Hann^an, 1 McLean, 316, Fed. Cas. 2206, lex looi applies to
assignments; Le Prince v. Guillemot, 1 Rich. Eq. 213, marriage settlement
constituting lien in France is valid contract here, but lien gives no priority
over American creditors; The Trenton, 4 Fed. 665, sale of vessel under
proceedings in rem extinguishes lien acquired in another jurisdiction;
Underwriters' Wrecking Co. v. The Katie, 3 Woods, 186, Fed. Cas. 14,342,
mortgage on vessel in home port has priority over a previous lien in for-
eign jurisdiction; Donald v. Hewitt, 33 Ala. 545, 546, 78 Am. Dec. 433,
Hen of attaching creditor in one State preferred to prior lien in foreign
State; Crowell v. Skipper, 6 Fla. 583, although contract is construed accord-
ing to lex loci contractus, property rights under it are subject to the
regulations of the country into which the property affected may be
brought; Hardeman v. Downer, 39 Ga. 438, held by anajogy, that home-
stead and exemption laws do not impair obligation of contract, quoting
and approving, this case at length ; Lee v. Creditors, 2 La. Ann. 604, foreign
lienholder accorded no priority in local insolvency proceedings; Corbett
V. Littlefield, 84 Mich. 35, 22 Am. St. Rep. 684, 47 N. W. 582, subsequent
attachment takes priority over foreign chattel mortgage; Saunders v.
Williams, 5 N. H. 215, subsequent attachment preferred to foreign assign-
ment in insolvency; Dalton v. Currier, 40 N. H. 248, and also Dunlap v.
Rogers, 47 N. H. 287, 98 Aif. Dec. 435, holding same as preceding case;
Johnson v. Hunt, 23 Wend. 90, property taken by absconding debtor to
foreign State and then transferred to citizen of that State will not be af-
fected by involuntary subsequent assignment in State from which he fled
nor can it be seized if bror'2;ht again within its jurisdiction; Hall v. Harris,
11 Tex. 310, lien acquired by wife by marriage contract in Louisiana
will be deferred to lien acquired subsequently by trustee under law of
Texas; cited, generally, in In re Sun Ins. Co., 22 Fed. 115, Handrick v.
Andrews, 9 Port.. 27; Weinstein v. Freyer, 93 Ala. 261, 9 South. 286,
Leake v. Gilchrist, 2 Dev. 80, Dow v. Rowell, 12 N. H. 50, Hardeman v.
Downer, 39 Ga. 428, Sherill v. Hopkins, 1 Cow.' 108.
5 Cr. 2^9-302 NOTBS ON U. S. REPORTS. 364
Denied in Watts v. Kilbum, 7 Ga. 359, holding removal of property to
foreign State and voluntary sale there will not defeat previously acquired
judgment lien if property is brought back, to State from whence removed;
Colt V. O'Callaglmn, 2 La. Ann. 985, where vendor Acquires no privilege
under the law of place of sale he acquires none by translation of the prop-
erty to place where law gives such privilege to contracts made there.
Distinguished in Taylor v. Boardman, Jr., 25 Vt. 591, holding that lien
acquired by chattel mortgage upon personal property in foreign State
will be enforced where property has been wrongfully removed from State,
even as against attaching creditors.
The United States are entitled to priority independent of whether claim
proved or not.
Cited in Lewis v. United States, 92 U. S. 622, 23 L. Ed. 514, holding
United States need not prove iilaim in bankruptcy proceedings ; Thelluson
V. Smith, 1 Pet. C. C. 198, Fed. Cas. 13,878, United States takes priority
over judgment creditors; United States v. Lewis, 26 Fed. Cas. 925, 13
Bank. R^g. 33, United States need not prove debt in insolvency prior to
filing bill to enforce priority; Commonwealth v. Lewis, 6 Binn. 274, and
Willing V. Bleeker, 2 Serg. & R. 228. United States takes priority over
foreign attachment, where no right of property has been acquired; dis-
senting opinion in Merrill v. National Bk. of Jacksonville, 173 U. S. 177,
43 L. Ed. 657, as to distribution of dividends of bankrupt national bank.
Distinguished in Guarantee Title & Trust Co. v. Title Guaranty etc. Co.,
224 U. S. 157, 56 L. Ed. 709, 32 Sup. Ct. 457, by bankrupt of July 1, 1898,
claims for labor are given priority over all debts except taxes due the
United States or any State or county.
Priority of Sttite of United States in payment. Note, 29 L. R. A. 229,
236, 241.
Where contract made with foreigners in foreign country, bankruptcy laws
of foreign country are incapable of operating legal transfer of property here.
Approved in In re Delehanty's Estate, 11 Ariz. 369, 21 Ann. Oas. 1038,
17 L. R. A. (IS, S.) 173, 95 Pac. 110, foreign assignment by bankrupt
did not convey real estate in Arizona; Ogden v. Saunders, 12 Wheat. 361,
6 L. Ed. 657, holding discharge in insolvency not a bar against action by
citizen of another State in Federal courts; In re Klein, 1 How. 280, 11
L. Ed. 132, 14 Fed. Cas. 717, discharge in one sovereignty is not recog-
uized in another except upon principles of comity ; Booth v. Clark, 17 How.
337, 1$ L. Ed. 170, discussing effect of assignment under foreign law;
Security Trust Co. v. Dodd Mead, 173 U. S. 629, 43 L. Ed. 837, holding-
assignment under Minnesota insolvent law unavailing to prevent attach-
ment of ! Massachusetts personalty by a New York creditor; Towne v.
Smith, 1 Wood. & M. 131, 137, Fed. Cas. 14,115, States held foreign within
the rule; Betton v. Valentine, 1 Curt. 172, Fed. Cas. 1370, holding assignee
in Massachusetts not authorized to represent creditors in Rhode Island
for the purpose of setting aside conveyance void as to them; The Watch-
man, 1 Ware, 237, Fed. Cas. 17,251, local attaching creditor has priority
over foreign assignee for benefit of creditors; Peirry Mfg. Co. v. Brown,
365
HARRISON V. STERRY.
5 Cr. 289-302
2 Wood. & M. 454, 465, 466, 467, Fed. Cas. 11,015, right of attachment
exists until assignee takes ^possession ; Woodhull v. Wagner, 1 Bald. 301,
Fed. Cas. 17,975, discharge in one State does not protect from arrest in
another; McCarty v. Hall, 13 Mo. 483, State will not suffer property to
be withdrawn under foreign laws of administration which may be neces-
sary to Satisfy debts due its citizens ; Abraham v. Plestoro, 3 Wend. 549,
559, 562, 20 Am. Dec. 742, 751, 753, foreign assignment in insolvency does
not operate td transfer title to goods on the high seas at the time, even
as against bankrupt, it not appearing that the vessel carrying them be-
longred to the foreign country in question (reversing Plestoro v. Abraham,
1 Paige Ch. 237); Lehmer v. Herr, 1 Duv. (Ky.) 362, arguendo; Willitts
V. Waite, 25 N. Y. 586, holding foreign assignee in bankruptcy takes prop-
erty subject to claims of local attaching creditors; Milne v. Moreton, 6
Binn. 364, 371, 372, 6 Am. Dec. 471, 478, 479, collecting authorities; Good-
sell v. Benson, 13 R. I. 247, 250, insolvency laws have no extraterritorial
effect; In re Bugbee, 4 Fed. Cas. 610, 9 Bank. Reg. 261, attaching creditor
has priority over foreign assignee; Pug\i v. Bussel, 2 Blackf. 401, dis-
charg;e in insolvency has no operation as to contracts not made and to be
performed there nor over citizens of other States; Oliver v. Townes,
2 Mart. (La.) (N. S.) 101, local attachment prevails over prior assignment
unaccompanied by delivery, although such assignment would have been
valid by the law of the assignor's domicile ; Fox v. Adams, 5 Me. 254, local
attachment has priority over previous foreign assignment in insolvency;
Carrier's Case, 2 Bland Ch. 497, 498, property of decedent may be detained
in country where situated in opposition to foreign administration or bank-
rupt laws : Blake v. Williams, 6 Pick. 309, 310, 17 Am. Dec. 378, 880, local
attachment has priority over foreign assignment in bankruptcy; Cross v.
Brown, 19 R. I. 238, 33 Atl. 153, local attaching creditor preferred to
foreign assignee in bankruptcy; Topham v. Chapman^ 1 Mill. 286, 12 Am.
Dec. 629, holding similarly.
Cited in general discussion in Planters' Bank v. Sharp, 6 How. 330,
12 L. Ed. 459 , Brooks v. Marbury, 11 Wheat. 102, 6 L. Ed. 430 , Ogden v.
Saunders, 12 Wheat. 362, 6 L. Ed. 657, Meeker v. Wilson, 1 Gall. 429^
Fed. Cas. ^392 , Blane v. Drummond, 1 Brock. 65, Fed. Cas. 1531 , Steams
V. Burnham, 5 Me. 263, 17 Am. Dec. 229 , Reynolds v. McMuUen, 35 Mich.
585, 54 Am. Rep. 397, 22 N. W. 50, La Selle v. Woolery, 14 Wash. 71,
53 Am. St. Bep. 856, 44 Pac. 115.
Distinguished in Stowe v. Belfast Sav. Bank, 92 Fed. 96, 98, holding
State insolvency laws cannot aid or defeat assignment for benefit of cred-
itors made in another State ; Crapo v. Kelly, 16 Wall. 627, 21 L. Ed. 437»
property of bankrupt being a vessel on the high seas at time of assign-
ment, held title passed to assignee in State to which vessel belonged (re-
versing Kelly V. Crapo, 45 N. Y. 91, 6 Am. Rep. 37) ; Ex parte Norwood,
3 Biss. 512, Fed. Cas. 10,364, receiver under foreign jurisdiction may prove
debt in another jurisdiction.
Criticised in In re Republic Ins. Co., 20 Fed. Cas. 549, receiver of cor-
poration allowed to prove debt in foreign insolvency proceedings; Robin-
son V. Rapelye, 2 Stew. 101, assignment for benefit of creditors in New
V
*
5 Cr. 289-302 NOTES ON U. S. REPORTS. ' 366
Yprk, held valid in Alabama against loeal attaching creditor; Wilson v.
Matthew, 32 Ala. 346, where court of Alabama gave effect to insolvency,
discharge obtained in Louisiana as against a resident of Louisiana who
participated in the insolvency proceedings; Frank v. Bobbitt, 156 Mass.
115, 29 N. E. 210, where prior foreign assignnlent was upheld to exclusion
of subsequent attachment of foreign creditor.
Questioned in Holmes v. I^emsen, 4 Johns. Ch. 488, 8 Am. Dec. 596, which
was afterward disapproved' on this point in Holmes v. Remsen, 20 Johns.
266, 11 Am. Dec. 280 , Hoyt v. Thompson, 5 N. Y. 344, receiver of insolvent
corporation may sue in foreign State where he does not come into conflict
with creditors resident in that State; Long v. Girdwood, 150 Pa. St. 418,
24 Atl. 711, domestic court wiU not give foreign attaching creditor priority
oven foreign assignment.
Commented on ih Lehmer v. Herr, 1 Duv. (Ky.) 362, Hoyt v. Thonipson,
5 N. Y. 350, Weider v. Maddox, 66 Tex. 376, 59 Am. Rep. 620, 1 S. W. 170,
but a voluntary assignment made in foreign State, valid according to the
laws of State where property is situated had it been made there, will be
upheld; Dana v. LuU, 17 Vt. 395, one of two partners may not assign all
the property of the firm for the benefit of its creditors and then put an
end to the firm; Peck v. Hibbard, 26 Vt. 704, 62 Am. Dec. 609, dischai^e
by insolvency proceedings in the country where an obligation is created
is a valid defense to the obligation wherever sued upon ; Hanf ord v. Paine,
32 Vt. 456, 78 Am. Dec. 591, distinguishing between voluntary and in-
voluntary assignment, and holding former valid even as against local
attaching creditors; Mowry v. Crocker, 6 Wis. 331, a foreign voluntary
assignment is valid as against attaching creditor of same foreign State.
Extraterritorial effect of transfers of personalty. Note, 55 Am. Bep.
130.
Transfer of property in another jurisdiction. Note, 12 Am. Dec. 472.
Effect of bankruptcy of owner on title of property in foreign country.
Note, 21 Ann. Oas. 1040.
Transfer of property out of State by bankruptcy, or kindred proceed-
ings. Note, 23 L. R. A. 43. y
An instrument executed in contemplation of insolvency and in fraud of
the bankrupt act is void.
Cited in Kahn v. Salmon, 10 Sawy. 198, 20 Fed. 811, assignment for
benefit of creditors held void when, by confessing judgment, assignor had
previously put the bulk of his property out of his possession; Receivers
etc. V. Paterson Bank, 10 N. J. Eq. 18, assignment of notes in contem-
plation of insolvency for the purpose of preferring one creditor, held void.
Wliere bankruptcy proceedings are against one only of two partners, aa-
signee acquires only his interest in firm property.
Cited in Amsinck v. Bean, 22 Wall. 406, 22 L. Ed. 805, holding in bank-
iniptcy against individual partner only his interest in partnership property
passes I Clarke v. Stan wood, 166 Mass. 381, 44 N. E. 537, discussing, gen-
367 HARRISON v. STERRY. 6 Cr. 289-302
erally, rights of creditors where one partner only is insolvent; Winship y.
Bank, 5 Pet. 576, 8 L. Ed. 233, arguendo.
Equity wlU sapport an equitable assignment.
Cited in Houston v. NowIand,| 7 Gill & J. 493, holding an equitable
assignment of an interest in lands which leaves nothing hut the dry legal ^
title in the assignor is valid to defeat an attachment of the land in suit
against the assignor.
Bii^t of priority is no part of a contract. It is extrinsic and dependent
on the lex fort
Cited in McLure v. Menton, 24 S. C. 568, 58 Am. Bep. 276, wherp it is
held that law changing the priority of payment of decedent's debts did
not impair the obligation of a contract; Baldwin v. Buswell, 52 Vt. 64,
nor a law changing right of priority under attachment.
One partner may make valid assignment in bankruptcy of partnersbip
effects, when tbe other is absent from comitry.
Approved in Forbes v. Scannell, 13 Cal. 288, appl3dng rule to assignment
for benefit of creditors; dissenting opinion in Leitensdorfer v. Webb, 1
N. M. 68, holding partner may make general assignment in absence of
other partner; Egberts v. Wood, 3 Paige Ch. 525, 24 Am. Doc. 242, partner
may make valid assignment preferring one partnership creditor without
concurrences of his partners ; Mabbett v. White, 12 N. Y. 454, partner may
sell all partnership property to creditor in payment of debt without con-
sulting other partners; Clafflin Co.' v. Evans, 55 Ohio St. 192, 60 Am. 4t.
Rep. 689, 45 K. E.*4, partner may make assignment wheii he is "managing"'
partner; Deckard v. Case, 5 Watts, 24, SO Am. Dec. 289, partner may make
assignment of all partnership property if transaction is bona fide ; Hennessy
V. Western Bank, 6 Watts & S. 311, 40 Am. Dec. 562, holding two partnei-s
have power to make assignment of partnership property in absence of third
partner; White v. Union Ins. Co., 1 Nott & McC. 560, 9 Am. Doc. 727,
surviving partner may assign effects of firm to third person for purpose
of paying firm debts ; Robinson v. Crowder, 4 McCord, 537, 17 Am. Dec.
766, partner may make valid assignment for purpose of paying debts;
Gordon v. Cannon, 18 Gratt. 404, as to authority of partner to execute
such assignment ; Rumery v. McCiilloch, 54 Wis. 572, 12 N. W. 68, partner
has authority to execute assignment for benefit of creditors where other
partner has departed the country. Cited in general discussion in Bohler
V. Tappan, 1 McCrary, 135) 1 Fed. ^70; Robards v. Waterman, 96 Mich.
235, 55 N. W. 663; Moore v. Stevens, 60 Miss. 816; Boswell v. Green, 25
K. J. L. 396 ; Stegall v. Coney, 49 Miss. 770.
Distinguished in Bowen v. Clark, 1 Biss. 132, Fed. Cas. 1721, holding
rule not applicable where other partner has given express notice that he
will not be bound ; Ex parte Hartz, 11 Fed. Cas. 723, decree in bankruptcy
cannot be rendered on voluntary petition of partner, unless all unite.
Qualified in Kirby v. IngersoU, Harr. Ch. (Mich.) 185, holding rule does
not apply when other partner is on the ground and can be consulted;
Kiiby Y. IngersoU, 1 Doug. (Mich.) 486, 490, 501, afi&rming the preceding
5Cr.303 NOTES ON U. S. REPORTS. 368
case on appeal ; Havens v. Hussey, 5 Paige, 32, partner has not authority
to make general assignment without consent of copartners; Hutchinson
V. Smith, 7 Paige, 26, but he may not assign partnership property in pref-
• erence of individual creditor after death of one of the partners; dissent-
ing opinion in Mabbett v. White, 12 N. Y. 460, limiting rule to partial
assignments, the other partner being absent from the country; Sloan v.
/ Moore, 37 Pa. St. 223, partner may not assign all of partnership property
pending dissolution, other party being accessible and not assenting; In re
Daniels, 14 R. I. 501, limiting rule to case where partner not uniting in
assignment is inaccessible; Sibley v. Young, 26 S. C. 419, 2 S. E. 317, hold-
ing by analog3JV that partner is not bound by sealed instrument executed
by his partner; Musson v. Lake, 4 How. 278, 11 L. Ed. 974, arguendo.
Assignment for creditors by one partner. Note, 48 Am. Rep. 859.
Conflict of laws as to chattel mortgages. Note, 64 L. B. A. 353.
Miscellaneous. Cited erroneously in Trice v. Smith, 6 Yerg. (Tenn.)
320.
6 Cr. 803, 3 L. Ed. 108, BBOWK ▼. 8TB0DE.
Federal courts have jurisdiction over suits between citizens of saina State,
'. when plaintiffs are nominal plaintiffs for use of alien*
Approved in United States Fidelity & Guaranty Co. v. United States,
204 U. S. 354, 51 L. Ed. 518, 27 Sup. Ct. 280, sustaining jurisdiction 4)f
Federal court in suit brought by United States for benefit of a material-
man upon bond of contractor for public work ; Howard .v. United States,
184 U. S. 681, 46 L. Ed. 757, 22 Sup. Ct. 546, holding action on bond
of Circuit Court clerk arises under laws of United States; Atchison etc.
Ry. Co. V. Phillips, 176 Fed. 666, 667, 100 C. C. A. 215, in action by widow
to recover for wrongful death of husband, where heirs of deceased were
joined as defendants because they refused to join as plaintiffs, such heirs
were merely formal parties and their citizenship was immaterial; Stephens
V. Smartt, 172 Fed. 472, stakeholder or active trustee, having duty to per-
form which court may enforce, is not a mere nominal party whose citizen-
ship can be disregarded; Taylor v. Weir, 171 Fed. 639, 96 C. C. A. 438,
president of a joint stock association sued on a cause of action against
the association was merely a nominal party, and his citizenship could not
confer jurisdiction ; Slater Trust Co. v. Randolph-Macon Coal Co., 16^ Fed.
^ 178, inability to make service upon another party named as a defendant
whose interest is merely ministerial will not deprive Federal court of
jurisdiction; Kuchler v. Greene, 163 Fed. 98, where real controversy is
' between citizens of different States but plaintiff was compelled to use the
name of another party not a citizen of another State to perform a minis-
terial act, joinder of such party did not deprive court of jurisdiction; .
Burrell v. United States, 147 Fed. 46, suit by materialman, in name of
United States, under 28 Stat. 278, relating to contractor'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
\
369 BROWN v. STRODE. 6 Cr. 303
of United States, under 28 Stat. 278, relating to contractors' bonds, may
be brought in Federal court regardless of citizenship of parties or amount
in controversy; Einstein v. Georgia/ Southern & F. Ry. Co., 120 Fed. 1009,
holding Federal court had jurisdiction where ojie' of three trustees Was
made party defendant by other two though He resided in same State as
defendant; Bishop v. Boston, 117 Fed. 772, holding citizenship of admin-
istrator and not of beneficiaries controls ; Missouri etc. T. Ry. Co. v. Elliott,
102 Fed. 5, 6, -holding action on contractor's bond in erection of public
buildings may be brought by United States in State courts; Smith v.
Packard, 98 Fed. 797, holding plaintiff in attachment may sue in Federal
court on forthcolhing bond though sheriff did not have requisite citizen-
ship; Sheltman v. Taylor's Committee, 116 Va. 764, 82 S. E. 699, where
nonresident committee was appointed for ^ lunatic, residence of com-
mittee rather than that of lunatic is the place where suit is maintainable;
McXutt V. Bland, 2 How. 14, 15, 11 L. Ed. 161, holding citizens of other
States entitled to sue upon sheriff's bond in Federal court sitting in
Mississippi, though such suits are required to be taken in name of the
Governor; Florida v. Georgia, 17 How. 499, 15 L. Ed. 196, holding that in
suit between States to establish their boundary, attorney general may
intervene on behalf of United States; Wood v. Davis, 18 How. 469, 15
L. Ed. 461, where real parties in interest resided out of State, and nominal
parties were mere special agents; Rice v. Houston, 13 Wall. 67, 20 L. Ed.
484, holding executors or administrators to be real parties in interest and
(entitled as such to maintain actions against citizens of other States;
Walden v. Skinner, 101 U. S. 589, 25 L. Ed. 968,^holding jurisdiction of
the Circuit Court not defeated because joined with the defendant as
nominal parties, are the executors of a deceased trustee, citizens of same
State as complainant; Maryland v. Baldwin, 112 U. S. 491, 28 L. Ed. 823,
5 Sup. Ct. 279, holding a suit on an administrator's bond taken in name
of State is to be regarded, for purposes of jurisdiction, as taken in the
name of the party for whose benefit it is brought; Stewart v. Railroad
Co., 168 U. S. 449, 42 L. Ed. 539, 18 Sup. Ct. 106, holding the administrator
of a deceased person but nominal party to a suit for damages for benefit
of widow ; Patterson v. Mater, 26 Fed. 32, where goods in possession of a
marshal were taken by State process, and bond given for their return,
holding marshal may maintain an action in Federal courts irrespective of
the question of citizenship between himself and obligors; Sioux City Ry.
Co. V. Chicago Ry. Co., 27 Fed. 772, holding sheriff and other officials,
named as joint defendants in an equity bill, are to be considered mere
nominal parties in absence of averments to contrary; Wade v. Wortsman,
29 Fed. 757, holding marshal having no interest in suit save proper per-
formance of his official duty, not party in interest, and his residence in
no way materiid ; Ferguson v. Ross, 38 Fed. 163, holdiiig suit by individual
in his official capacity as shore inspector against a citizen of another State,
cannot be removed from State court, real plaintiff being the State of New
York; Goodnow v. Leichfield, 47 Fed. 753, 4 McCrary, 216, where a peti-
tion for removal alleged that plaintiff, a citizen of same State as defendant,
was only a nominal party; Carver v. Trust Co., 73 Fed. 12, holding a de-
1—24
I
5 Cr. 303 NOTES ON U. S. REPORTS. 370
fendant dropped from iihe case, in the State court, as having no interest
in it is to be regarded as a mere formal party; Missouri v. Bowles Mill.
Co., 80 Fed. 161, suit on attachment bond in name of State a nominal
party, held not to oust Circuit Court's jurisdiction; Governor v. Ball,
Hempst. 545, Fed. Cas. 530, holding action upon administration bond pay-
able to the Governor by name, must be brought in name of Governor for
time being; Middlebrooks v. Insurance Co., 14 Conn. 310, applies rule
where secretary of foreign corporation, who was temporarily within State,
was served with summons and he was not real party in interest, and cor-
poration oould not be sued in State court ; Clarey v. Marshall, 4 Dana, 97,
it appearing from the record tha^ the court had jurisdiction, no exception
can be taken after verdict ; Cooke v. Bank, 52 N. Y. 113, 11 Am. Bep. .678,
holding a suit might be remqyed to Federal court upon the application of
one defendant, the others not being necessary parties ;'Hadley v. Dunlap,
10 Ohio St. 6, holding right of defendants to remove cause into the Circuit
Court cannot be taken away by joining with them an unnecessary defend-
ant, resident in State where suit is brought; Sands v. Smith, 1 Dill. 294,
1 Abb. *(U. S.) 372, Fed. Cas. 12,305, discussing removal of causes; Heriot
V. Davis, 2 Wood. & M. 223, Fed. Cas. 6404, as to whether those voluntarily
appearing are to be regarded as parties for jurisdictional purposes; Foss
V. Bank, 1 Mcfcrary, 477, 3 Fed. 187, arguendo; Gbodnow v. Litchfield, 4
McCrary, 216, 47 Fed. 753, approving the rule ; In re Barry, 42 Fed. 122,
Fed. Cas. 1059, discussing Circuit Court jurisdiction; Coal Co. v. Blatch-
ford, 11 Wall. 176, 177, 20 L. Ed. 181, holding trustees suing for benefit
of others form no excex)tion to rule, and must be considered as parties in
interest ; Knapp v. Railroad Co., 20 Wall. 123, 22 L. Ed. 381, holding suit
by trustees for bondholders of a railroad company cannot be removed to
the Circuit Court, the defendant being a corporation resident in same
State as trustees ; New- Orleans v. Gaine's Administrator, 138 U. S. 607,
34 L. Ed. 1106, 11 Sup. Ct. 431, l^olding one pursuing an equitable right,
based upon her own claims and by subrogation by operation of law, stands
upon her own citizenship irrespective of the citizenship of the persons
to whose rights she is subrogated.
Distinguished in Irvine v. Lowry, 14 Pet. 300, 10 L. Ed. 465, holding in
suit for payment of "office notes," jurisdiction is determined by the citizen-
ship of the parties to the record, even though the contract may have been
assigned; United States v. Myers, 2 Brock. 523, Fed. Cas. 15,844, holding
a nominal party to be one to whom nothing is due — in this case action,
was upon unpaid custom duties and the plaintiff is a party in interest;
Dodge V. Perkins, 4 Mason, 438, Fed. Cas. 3954, holding where adminis-
trator sues as such, and is citizen of same State as defendant, court has
no jurisdiction, although intestate was a citizen of another State; Ward
V. Arrendondo, 1 PaiVie, 412, Fed. Cas. 17,148, holding one receiving a deed
in trust to be delivered at his discretion upon the payment of a sum of
money, is a party in interest in suit to compel delivery of deed; Texas
V. Lewis, 12 Fed. 3, holding in suit by State against an individual who was
merely nominal party, real parties at interest being aliens might removo
the case to Circuit Court; in same case, upon rehearing, 14 Fed. 67; Harper
371 " HODGSON V. BO WERBANK. 6Cr.30a-304
V. Norfdk & W. R. R. Co., 36 Fed. 103, 104, holding an administrator
real party to suit, and question of jurisdiction determined by his residence,
and not intestate's; Reinach v. Railroad Co.; 58 Fed. 37, holding suit to
foreclose, brought by alien mortgage bondholder, is maintainable in Fed-
eral court although legal title is in citizen of same State as some of. the
defendants; Shipp v. Williams, 62 Fed. 6, 22 U. S. App. 380, holding no
jurisdiction in Federal courts of bill by beneficiary under deed of trust,
against debtor and trustee to foreclose deed, where trustee and debtor are
citizens of same State; Calderwood v. Braly, 28 Cal. 99, holding that all
defendants must be aliens or citizens of another State or cause cannot be
removed to Circuit Court; Vimont v. Railway Co., 64 Iowa, 517, 518, 17
N. W. 32, 33, 64 Iowa, 524, 21 N. W. 12, asserting plaintiff there to be mere
conduit, through whom parties aggrieved were to sjek their remedy, and
holding trustee real party in' interest ; Miller v. Sunde, 1 N. D. 4, 44 N. W.
302, holding citizenship of administrator determines . question of diverse
citizenship on which Federal jurisdiction depends ; Robb v. Parker, 3 "S. C.
70, where assignees of a bond sued thereon in a State court, in their own
names, holding question of Federal jurisdiction depends upon the citizen-
ship of assignees; Geyer v. Life Ins. Co., 50 N. H. 233, 9 Am. Bep. 187,
holding suit brought by administrator against citizen of same State cannot
be removed to United States courts ; Dunn v. Waggoner, 3 Yerg. 59, hold-
in|: trustees in whom legal interest is vested are parties in interest so as
to oust the Federal courts of jurisdiction.
Criticised and rule denied in dissenting opinon in McNutt v. Bland, 2
How. 24, 26, 11 L. Ed. 165, 166, holding jurisdiction not affected by joinder
of nominal parties. Cited in Gill v. Stebbins, 2 Paine, 419, Fed. Cas.
5431, as being overruled in Osborne v. United ^States Bank, 9 Wheat. 856,
6 L. Ed. 282, where rule is laid down that the jurisdiction is determined
by relative situation of the parties named on the record.
5 Cr. 303-304, 3 L. Ed. 308, HODGSON v. BOWEBBANE.
Altbough plaintiff is alien, defendant most be expressly stated to be citizen
of particular State to give Federal courts Jurisdiction.
Cited in dissenting opinion in McNutt v. Bland, 2 How. 22, 11 L. Ed.
164, majority holding fact that Governor and party sued on bond are citi-
zens of the same State will not oust court of jurisdiction; dissenting
opinion in Marshall v. Railroad Co., 16 How. 340, IS L. Ed. 964, majority
holding citizen of one State can sue in Federal courts a corporation averred
to have been created in another; Shaw v. Mining Co., 145 U. S. 447, 36
L. Ed. 770, 12 Sup. Ct. 936, holding, under act of March 3, 1887, corpora-
tion incorporated in one State cannot be compelled to answer in the Cir-
eait Court held in another State, where its usual place of business is, to
suit by citizen of different State; The Fideliter, 1 Abb. (U. S.) 579, 1 Sawy.
156, Fed. Cas. 4755, holding libel defective for not alleging a seizure;
Donaldson v. Hazen, Hempst. 424, Fed. Cas. 3984, holding jurisdictional
facts must be set forth in the pleadings; Blair v. Manufacturing Co., 7
Neb. 154, holding jurisdictional facts as to citizenship must appear on the
record; Hemdon v. Insurance Co., 107 N. C. 195, 12 S. E. 242, holding fact
6 Cr. 304^313
NOTES ON U. S. REPORTS.
372
\
that defendant is a foreign corporation d6es not riender wanecessary the
allegation of the citizenship of the pliuntiffs.
Distinguished in Commercial Bank v. Green, 2 Flipp. 182, Ffed. Cas. 3059,
holding service upon defendant as citizen of one State when, in fact, he
was citizen of another, did not oust jurisdiction.
Jurisdiction of Federal courts is limited by Constitution.
Approved in In re Barry, 136 U. S. 609, 34 L. Ed. 508, holding District
Court has no authority to issue a writ of habeas corpus to restore an infant
to father unlawfully detained by grandparents ; Florence S. M. Co. v.
Machine Co., 110 Mass. 81, holding suit in which a defendant and plaintiff
a^e citizens of the same State cannot be removed; Pooley v. Luco, 72 Fed.
561, Orosco v. Gagliardo, 22 Cal. 85, and Roberts v. Knight, 7 Allen, 451,
all holding, Federal ccArts without jurisdiction of suits between aliens.
Becord, defective for not allowing defendants citizens of some partlciilar
State, was amended by consent.
Cited in Glover v. Shepperd, 11 Biss. 580, 15 Fed. 838, holding if requisite
citizenship actually exists, petition may be amended.
5 Or. 304-311, 3 I>. Ed. 108, KEENS y. TTNtTED STATES.
Jurisdiction of District Court over seizures does not attach uxiless there
has been an open seizure by one with authority.
Rule applied in The Fideliter, 1 Abb. (U. S.) 578, 1 Sawy. 155, Fed. Cas.
4755, dismissing libel.
Court of district in whicli seizure is made on land has Jurisdiction to try
question of forfeiture.
Approved in United States v. Bark Reindeer, 2 Cliff. 69, Fed. Cas. 16,144,
holding vessel could be condemned by court of district where she was
seized; The Washington, 29 Fed. Cas. 338, holding to authorize District
Court to condemn, the first seizure must be within its district. Cited in
Tug May, 6 Biss. 249, note, Fed. Cas. 9330, and dissenting opinion in
Slocum V. Wheeler, 1 Coiin. 448.
Miscellaneous. Cited in Blanchard v. Sprague, 3 Sumn. 284, Fed. Cas.
1517.
5 Cr. 311-313, 3 I>. Ed. 110, X7NITED STATES v. BIDDLE.
A doubt concerning construction of 4aw of seizure may authorize certiflcate
of probable cause. ^
Cited in Averill v. Smith, 17 Wall. 92, 21 L. Ed. 616, and Stacey v.
Emery, 97 U. S. 646, 24 L. Ed. 1036, holding trespass will not lie against
a collector of internal revenue where a certificate of probable cause has
been granted; United States v. Ship Recorder, 2 Blatchf. 121, Fed. Cas.
16,130, granting certificate where seizure was under construction of act
given by attorney general; The Active, Deady, 176, Fed. Cas. 33, allowing
certificate where seizure was within the letter of the act ; Schooner Friend-
ship, 1 Gall. 112, Fed. Cas. 5125, holding a doubt of the law is proper cause
y
373 HIMELY v. HOSE. 5 Cr. 313-320
for a certificate of probable cause; United States v. Rings, 1 Sprague, 298,
Fed. Cas. 16,572, granting certificate of reasonable cause, for doubts of the
law; Ship La Manche, 2 Sprague, 215, 224, Fed. Cas. 80(>4, holding captors
not liable where vessel presents probable cause for capture; United States
V. Cable, 27 Fed. Cas. 266, giving certificate where seizure was made in
good faith in the belief that the law was being violated; United States v.
Reindeer, 27 Fed. Cas. 768, granting certificate where there were doubts
as to the construction of the law ; United States v. Cloth, 28 Fed. Cas. 108,
and United States v. Horse, 22 Vt. 657, allowing certificate where seizure
was under circumstances warranting suspicion.
Tlie attempt* no€ the intention, to defraud revenue laws is punishable.
Approved in State v. Staples, 110 Me. 266, 85 Atl. 1064, reafiirming rule ;
United States v. One Trunk, 171 Fed. 775, where importer swore to false
invoice but presented invoice at custom-house showing true value, illegal
intent was abandoned before "attempt" was made to make entry of goods;
Commonwealth v. Peaslee, 177 Mass. 273, 59 N. E. 56, holding attempt to
induce servant to bum house is punishable under Pub. Stats., chap. 210,
§ 8 ; United States v. Packages, Gilp. 325, Fed. Cas. 16,561, holding mak-
ing up of a false invoice, at place of exportation, is not an offense, until
followed up by an actual attempt; United States v..Batchelder, 24 Fed. Cas.
1037, holding declaration defective because it did not allege that the de-
fendant made the entry upon the false invoice.
5 Or. 313-320, 8 L. Ed. Ill, mMELY V. ROSE.
On appeal from proceedings under mandate to lowex court, nothing Is be-
fore court, but proceedings subsequent to mandate.
Approved in Illinois v. Illinois Cent. R. R. Co., 184 U. S. 91, 46 L. Ed.
446, 22 Sup. CL 305, Butler v. Thompson, 52 W. Va. 315, 43 S. E. 176,
StoU V. Loring, 120 Fed. 806, and Dent v. Pickens, 59 W. Va. 277, 53
S. £. 155, all real&rming rule; Mutual Reserve Fund Life Assn. v. Beatty,
93 Fed. 754, holding same question decided on previous appeal will not
be reviewed on subsequent appeal of same case; The Santa Maria, 10
Wheat. 442, 446, 6 L. Ed. 361, 862, holding interest or damages could not
he given by Circuit Court in the execution of a mandate, where same had
not been decreed by Supreme Court upon the original appeal; Boyce v.
Grundy, 9 Pet. 290, 9 L. Ed. 132, holding Circuit Court could not, in carry-
ing out the decree, allow interest, where court in affirming decree allowed
none ; Ex parte Sibbald v. United States, 12 Pet. 492, 9 L. Ed. 1169, hold-
ing inferior court can examine mandate for no other purpose than exe-.
cution; Washington B. Co. v. Stewart, 3 How. 424, 425, 11 L. Ed. 668,
664, holding Supreme Court has no power to review its own decision in
a cause; Corning v. Factory, 15 How. 466, 14 L. Ed. 775, dismissing ap-
peal, where court below had not acted on the mandate; Roberts v. Cooper,
20 How. 481, 15 L. Ed. 974, and Supervisors v. Kennicott, 94 U. S. 499,
24 L. Ed. 260, holding writ of error brings up for revision nothipg but
the proceedings subsequent to the mandate; Tyler v. Maguire, 17 Wall.
284, 21 L. Ed. 583, holding this court could examine into the sufficiency of
/
6 Cr. 313-320 NOTES ON U. S. REPORTS. 374
the reason of the State court for not executing its mandate; Stewart ▼.
Balamon, ,97 U. S. 362, 24 L. Ed. 1045, dismissing appeal from decree of
Circuit Court passed in exact accordance with the mandate of this court
upon a previous appea}; Clark v. Keith, 106 U. S. 465, 27 L. Ed. 802, 1
Sup. Ct. 669, and Chafiin v. Taylor, 116 U. S. 572, 29 L. Ed. 729, 6 Sup.
CI. 520, holding whatever was examined here on writ of error cannot be
re-examined upon a subsequent writ; In re W. & G. R. R. Co., 140 U. S. 97,
35 L. Ed. 842, 11 Sup. Ct. 674, where affirming judgment said nothing
about interest, judgment on mandate should not have allowed it; Metcalf
V. Watertown, 68 Fed. 861, 34 U. S. App. 107, holding where judgment on
mandate determines questions not covered thereby, it is subject to review;
Republican Min. Co. v. Mining Co., 79 Fed. 735, 48 U. S. App. 218, hqiding
appellate court is not bound to consider any of the questions, which were
before it on first writ of error; Fortenberry v. Frazier, 5 4-rk. 202, 39
Am. Dec. 374, holding after a case has been remanded and is again brought
before Supreme Court, nothing is before court for adjudication but pro-
ceedings subsequent to the mandate; Davidson v. Dallas, 15 Cal. 83, and
Davenport v. Kleinschmidt, 8 Mont. 480, 20 P^c. 826, holding decision of
Supreme Court cannot be reviewed; Roberts v. Haggart, 4 Dak. 212, 29
N. W. 656, holding rehearing cannot be granted after final judgment and
adjournment of term; temple v. Anderson, 4 Gil. (111.) 562, holding court
will not go behind its former adjudication even though it appear of record
that court acted without jurisdiction; Dodge v. Gaylord, 53 Ind. 369,
holding second appeal hrings up for review only proceedings subsequent
to reversal; Hey v. Schooley, 7 Ohio (pt. II), 49, holding a final decree
to sell mortgaged premises is not opened by appeal from decree affirming
sale; Overton v. Bigelow, 10 Yerg. 53, holding that rehearing of cause
cannot be allowed at a subsequent term, although cause was retained for
taking account; Chambers v. Hodges, 3 Tex. 529, holding, after close of
torm, court cannot revise decree; Silva v. Pickard, 14 Utah, 251, 47 Poc.
146, holding that decision of Supreme Court will not be reviewed; dis-
senting opinion in State v. Circuit Court, 71 Wis. 610, 38 N. W. 199,
majority holding lower court can grant new trial, though denial of previous
motion for new trial has been affirmed by Supreme Court; Bissell etc. Co.
V. Goshen etc. Co., 72 Fed. 553, 43 U. S. App. 47, Poole v. Nixon, 9 Pet.
App. 780, 9 L. Ed. 809, Fed. Cas. 11,270, and Sanderson v. Sanderson, 20
Fla. 299, following rule.
Distinguished in Hastings v. Foxworthy, 45 Neb. 692, 63 N. W. 960,
holding where the case on first appeal was remanded generally for a new
trial, the appellate court on second appeal may reverse its rulings in the
first; Tcai¥ v. Hewitt, 1 Ohio St. 520, 59 Am. Dec. 637, holding appeal
from final decree opens up the whole merits of cause.
Power of appellate court after remittitur. Note, 21 Am. Dec. 119.
Conclusiveness of prior decisions on subsequent appeals. Note, 84
L. B. A. 880.
Right to recover interest on fund in litigation or deposited in ooort.
Note, Ann. Oas. 1912B, 1005.
375 NOTES ON U. S. REPORTS. 5 Cr. 321-333
Miscellaneous. Cited incidentally in Stnrgis v. Fay, 16 Ind. 431, 79
Am. Dec. 442.
5 Cr. S21, 3 L. Ed. 113, WBLSH ▼. MAKDEVILLE.
Supreme Court will not compel hearing, nnleas citation be served tliirty
days before first day of term.
Cited in National Bank v. Bank, 99 U. S. 609, 25 L. Ed. 362, holding
the meaning of the statute is not that the citation be served thirty days
before the return day, but that the defendant shi^l have thirty days ' notice
before he shall be compelled to answer; Cox v. McQarrahan, 131 U. S.
100, 19 L. Ed. 500, denying a motion to rescind an order advancing a cause,
founded upon the fact that the writ of error to judgment below was
allowed less than thirty days before the first day .of the term.
Distinguished in Sammins v. Wightman, 25 Fla. 554, 6 South. 175, where
twenty-^ve days cannot elapse between bringing of writ and first term
of Supreme Court, wpt should be returnable on next term.
Practice and procedure governing transfer of causes of Federal
Supreme Court for review. Note, 66 L. B. A. 846.
5 Cr. 322-333, 3 I*. Ed. 114, SIDDLE ▼. MANDEVILLE.
Under Virginia law, indorsee of promissory note may recover directly from
a remote indorser in equity.
Approved in Bank of United States v. Weisiger, 2 Pet. 347, 7 L. Ed. 447,
following rule ; Smith v. Harley, 8 Mo. 560, applying rule to non-negotiable
note; Dorsey v. Hadlock, 7 Blackf. 115, extends rule to suit by assignee
of non-negotiable note against remote assignor; Tumeys v. Hunt, 8
B. Mon. 407, 408, if immediate indorser is insolvent it furnishes even a
stronger ground for equity; Watson v. Hahn, 1 Colo. 495, this right will
support an express promise to pay, enforceable at law; Walker v. Henry,
36 W. Va. 110, 14 S. E. 443, arguendo.
Criticised in Hayward v. Andrews, 106 U. S. 677, 27 L. Ed, 273, 1 Sup,
Ct. 549, holding that a mi^re assignee of a chose in action cannot sue in
equity without some particular fact existing, bringing the case within the
cognizance of a court of equity, and holding in this case that the fact that
assignee could not sue in his own name at law would not entitle him to
sae in equity if the assignor had not refused to permit him to use his
name; Walker v. Brooks, 125 Mass. 245, applies the same doctrine.
Disting^shed in Breeden v. Frankfort Marine etc. Ins. Co., 220 Mo.
410, 119 S. W. 601, in suit against employer for injuries to employee,
insurer in a policy indemnifying employer against loss for such injuries
may aid in defending such action; Clifford v. Keating, 3 Scam. 252, Long
V. Pence, 93 Va. 587, 25 S. E. 594, and Watson v. Hahn, 1 Colo. 495, on
ground that under statute in some States indorsee may sue remote in-
dorser directly at law in the following: McCarthy v. Rhea, 1 Blackf. (Ind.)
55, Dunn v. Price, 11 Leigh (Va.), 209, and Drane v. Schofield, 6 Leigh,
396, Long v. Pence, 93 Va. 587, on ground that indorsee may sue remote
indorser in name of assignor.
5 Cr. 322-333 NOTES ON U. S. REPORTS. 376
Questions of State law as^to which State court ^decisions must be fol-
lowed in actions originating in^ or removed to. Federal courts.
Note, 40 L. R. A. (N. S.) 888.
Indorsement of promissory note is prima fade evidence of indorsement for
full value.
Cited in Moses v. Lawrence County Bank, 149 U. S. 302, 303, 87 L. Ed.
745, 3'Sup. Ct. 901, Cowles v. Harts, 3 Conn. 622, Canal Co. v. Templeton,
20 La. Ann. r42, 96 Am. Dec. 886, Labadie 's Exr. v. Chouteau, 37 Mo. 421,
Morton v. Rogers, 14 Wend. 586, following rule; Worthington v. Curd, 15
Ark. 506, arguendo.
Quaere whether sale of chattel under bill of sale containing warranty of
title would not entitle suVsequent assignee to sue original warrantor.
Cited in Bo^d v. Whitfield, 19 Ark. 461, as showing that covenants of
warranty do not pass from one vendee to another by mere sale oi^ chattel.
Indorser sued by remote indorsee may set up any defense available against
immediate indorsee.
Cited in Turneys v. Hunt, !B B. Mon. 410, Smith v. Harley, 8 Mo. 560, and
Caton V. Lenox, 5 Randqlph,. 43, followins rule.
Where estate has been distributed or executor is Insolvent, a creditor may
sue the legatees in chancery.
• Cited, in Davis v. Vansands, 45 Conn. 604, Trescot v. Trescon, McCord
Ch. (S. C.) 433, and Buchanan v. Pue, 6 Gill (Md.), 118, executor may sue
legatees to recover estate distributed before ins^ciency of assets was
known; Hammond v. Hammond, 2 Bland Ch. 348, where executor is dead
or insolvent creditor may sue heirs and devisees; Gregory v. Forrester, 1
McCord Ch. (S. C.) 326, holding similarly; Chewett v. Moran, 17 Fed.
821, and Continental Bank v. Heilman, 81 Fed. 42, to suit against heirs to
charge lands in their hands with ancestor's debts.
But held in McCoUum v. Hinckley, 9 Vt. 149, creditor must not have
been guilty of laches. ,
Equity will make that party immediately liable who is ultimately liable
at law.
Approved in In re Seigel-Hillman Dry Goods Co., Ill Fed. 985, apply-
ing principle in adjusting equities between creditors in bankruptcy; Gaines
v. New Orleans, 4 Woods, 221, 222, 17 Fed. 20, and applied to suit against
a grantor for rents and profits received by his grantees; United States v.
Aborn, 3 Mass. 129, 131, Fed. Cas. 14,418, applied to suit against sureties
on probate bond of insolvent executor; Dickinson v. Hoomes, Admr., 8
Gratt. 405, covenant of warranty running with land may be enforced in
equity against remote warrantor; Rodney v. Shankland, 1 Del. Ch. 46,
12 Am. Dec. 74, appl3ring rule to suit by cestui que trust to enforce trust;
Trecothick v. Austin, 4 Mason, 36, Fed. Cas. 14,164, equity will not put
cestui que trust to circuity of action to enforce trust; Henshaw v. Freer,
Bail. £q. 316, applied to suit against estate for services rendered deceased
/
377 NOTES ON U. S. REPORTS. 5 Cr. 333-343
executor for benefit of estate which would have been entitled to recover
from the estate. Cited in general discussion in Colt y. Lasnier, 9 Cow.
331, Grant v. Ludlow, 8 Ohio SI. 24, Henshaw v. Freer, Bail. Eq. 318.
There Is no privity at common law between indorsee and remote indorser
of promissory note.
r
Cited in dissenting opinion in Hempstead v. Hunter, 1 Mo. 70, majority
holding indorser and payee are liable to another indorser; Long v. Pence,
93 Va. 587, holding similar want of privity between assignee and remote
assignor; Wood v. Dummer, 3 Mason, 313, Fed. Cas. 17,944, Oelrichs v.
Spain, 15 Wall. 229, 21 L. Ed. 45, Leavens v. Butler, 8 Port. 395, Thomas
V. Brinsfield, 7 Ga. 161, Watkins v. Worthington, 2 Bland Ch.'523, and
Moses V. Lawrence Bank, 149 U. S. 302, 87 L. Ed. 745, 13 Sup. Ct. 901,
arguendo.
5 Or. 3S3'-334, 3 L. Ed. 117, DT7I.ANT Y. HODOSIN.
Under Virginia law indoner is not liable unlesB plaintiff show maker Ut
inaolvMit, or that he has brought suit' and it has proved fruitlees.
Cited in Camden v. Doremus, 3 How. 533, 11 L. Ed. 713, holding the
ascertainment of the notorious insolvency answers the demand of due
diligence; Drane v. Schofield, 6 Leigh (Va.), 390, 398, holding if holder
elects to pursue maker into an adjoining State, and then fails to commence
or prosecute his suit, he has no recourse against assignor.
Release ofindorser of note by failure to ei^force liability of maker.
Note, IS L. B. A. (N. 8.) 661.
5 Or. 335-348, 3 L. Ed. 117, TEATON Y. FRY. '
*
Voyage from neutral to blockaded port with notice of blockade incurs
liability to capture and condemnation as prize.
Approved in The Adula, 176 U. S. 370, 44 L. Ed. 509, 20 Sup. Ct. 435,
holding blockade operative as to vessels bound to Guantanamo; The Cir-
cassian, 2 Wall. 151, 17 L. Ed. 800 (affirming s. c, 5 Fed. Cas. 712), apply-
ing principle where blockaded port was not immediate but ultimate •
destination; The Pearl, 19 Fed. Cas. 54, where blockaded port ultimate,
not immediate destination; United States v. One Hundred and Twenty-
nine Packages, 27 Fed. Cfis. 286, where vessel had not even left port but
was prepared to proceed, held vessel and whole cargo contraband and
otherwise liable to seizure.
Liability of marine insurer for losses arising out of war. Note, 5
B. B. 0. 81.
Policies are liberally construed In order to effect intention of parties, hut
exoeptions are construed against insurer.
Approved In Ocean SS. Co. v. Aetna Ins. Co., 121 Fed. 884, following
rule; Pacific Creosoting Co. v. Thames etc. Marine Ins. Co., 210 Fed.
960, applying rule in construing clause in a marine policy on cargo ; Laker
5 Cr, 333-343 NOTES ON U. S. REPORTS. 378
V. Royal Fraternal Umon, 95 Mo. App. 368, 75 S. W. 709, construing
benefit policy in connection with by-laws; Northwest Trans. Co. v. Boston,
Ins. Co/, 41 Fed. 801, holding exception of jferils from want of ordinary
skill, etc., in navigation strictly construed against insurer; Koons v. La
Fonciere Compagnie etc., 71 Fed. 983, construing language of exception of
less than fifty per cent of value against insurer; Hernandez v. Sun Mut.
Ins. Co., 6 Blatchf. 325, Fed. Cas. 6415, holding whole policy should be
read together in arriving at intention of parties; Palmer v. Warren Ins.
Co., 1 Story, 364, 366, 368, Fed. Cas. 10,698, holding visit to port during
excepted period does not exonerate from liability for loss after expiration
of period^ Canton Ins. Co. v. Woodside, 90 Fed. 305, 306, holding policy
on personal effects with stipulation "warranted free from all average,"
does not exempt insurer from liability for articles totally lost because a
few others are saved; Greenleaf v. St. Louis Ins. Co., 37 Mo. 29, deciding
navigation of excepted waters does not preclude recovery upon subsequent
loss elsewhere; Grant v. Lexington etc. Ins. Co., 5 Ind. 26, 61 Am. Dec.
77, holding violations of exceptions do not preclude recovery when viola-
tion has ceased and loss is from cause. not affected thereby; Parkhurst v.
Gloucester etc. Ins. Co., 100 Miss. 302, 97 Am. Dec. 102, holding policy
against usual marine risks to cover loss by barratry of master; Hoffman
v. Aetna Fire Ins. Co., 32 N. Y. 414, 88 Am. Dec. 345, holding transfer of
interest in partnership goods from one partner to another does not avoid
policy under proviso against assignments; Paul v. Travelers' Ins. Co.,^ 112
N. Y. 479, 8 Am. St. Bep. 762, 20 N. £. 349, holding accidental death from
suffocation by gas not within exceptions of policy; Wilkins v. Insurance
Co., 30 Ohio St. 336, 339, 27 Am. Rep. 457, 459, holding recovery not pre-
cluded where policy permitting navigation of certain waters, vessel navi-
gates others, returns safely and is subsequently destroyed; Webster v.
Insurance Co., 53 Ohio St. 564, 58 Am. St. Rep. 660, 42 N. £. 547, con-
struing liberally representation of insured that property was owned jointly
by himself and wife; United States Mut. Ace. Assn. v. Newman, 84 Va.
59, 3 S. E. 808, construing strictly against insurer words of exception
where insured died from suffocation by gas; Blumer v. Insurance Co., 45
Wis. 641, holding statement in application for insurance that x>ersons slept
in mill insured does not preclude recovery if persons subsequently cease
to sleep there under circumstances of case; Wakefield v. Insurance Co., 50
Wis. 636, 7 N. W. 649, construing strictly against insurer continuing war-
ranty that house shall not be left vacant; Warren v. Springfield etc. Ins.
Co., 13 Tex. Civ. App. 469, 35 S. W. 811, holding representation in policy
as to ownership of house by a husband sufficiently satisfied by proof that
lie built it, though on wife's land; Wright v. Sun Mut. Ins. Co., 30 Fed. Cas.
706, arguendo.
Distinguished in Hood v. Insurance Co., 11 N. Y. 541, refusing to extend
rule to cover timbers not united to structure where insurance is of barque
in course of construction.
Rules for construing insurance policies. Note, 14 £. B. 0. 15.
379 OWINGS V. NORWOOD'S LESSEE. • 6 Cr. 344-360
Copies of proceedings of foreign admiralty court certified by deputy
registrar wlio is certified by court judge who is certified by notary public
admissible in evidence.
Approved in Aarber v. International Co. of Mexico, 73 Conn. 603, 48
Atl. 764, holding sufficient the official attestation of the verity of a copy
of a public document as **a true copy"; United States v. Lillby, 1 Wood.
& M. 226, Fed. Cas. 15,597, admitting documents under seal of Portuguese
notary in Africa, certified to by Portuguese consul in Brazil, forwarded
under signature of American consul there; Thompson v. Stewart, 3 Conn.
181, 8 Am. Dec. 171, admitting document under seal of foreign vice-
admiralty court certified by deputy registrar; Lincoln v. Battelle,^6 Wend.
484, where document refused because only a copy of a copy; Stoddard v.
Sloan, 65 Iowa, 685, 22 N. W. 926, where court took judicial notice of
notary public's seal; Tibbetts v. Shaw, 19 Me. 209, deciding appellate
court had no jurisdiction where statute gave lower court authority to
determine upon its own seal and it had done so.
Distinguished in Williams vv Wilkes, 14 Pa. St. 230, holding United
States Circuit Court not being a foreign tribunal its seal proves itself.
One party cannot except to deposition taken before commissioners on his
own behalf for failure to prove notice to other party.
Approved in Andrews v. Graves, 1 Dill. 110, Fed. Cas. 376, following
rule; Iiawprenee v. Graves, 5 N. B. R. 281, 15 Fed. Cas. 72, holding deposi-
tion admissible when both sides represented when taken; Stewart v. Hood,
10 Ala. 608, holding such deposition admissible where party introducing
was present and cross-examined; Greene v. Chickering, 10 Mo. lU, hold-
ing party taking deposition would not object to its admissibility on account
of his own irregularity; Devinney v. Jelly, Tapp. (Ohio) 128, where plain-
tii! permitted to read defendant's deposition, but held he waived objections
and notice by so doing.
Criticised in Sexton v. Brock, 15 Ark. 352, 353, excluding deposition of
opposite party where introducing party was notified, but did not attend
taking.
Admissibility of deposition against party taking it. Note, Ann. Gas.
1918B, 1170. V
Domicile of wife for purpose of divorce suit. Note, 16 K B. A. 498.
6 Cr. 344-350, 3 L. Ed. 120, OWINQS v. NORWOOD'S LESSEE.
Supreme Court has Jurisdiction of cases arising under treaties; but eject-
ment where defendant sets up outstanding title, alleged to be protected by
treaty, is not such case.
Approved in Tyler v. Judges of Court of Registration, 179 U. S. 407,
45 L. Ed. 253, 21 Sup. Ct. 207, holding that error to State court does not
lie unless petitioner shows Federal question involves his personal interest
in proceedings ; Fisher v. Cockerell, 5 Pet. 257, 8 K Ed. 117, denying juris-
diction where party claiming title under compact between Virginia and
Kentucky did not show it on the record; Crowell v. Bandell| 10 Pet. 392,
5 Cr. 344-350 NOTES ON U. S. REPORTS. 380
9 L. Ed. 468, denying jurisdicition where nothing apparent from the record
bringing cases within twenty -fifth section of judiciary act; Henderson v.
Tennessee, 10 How. 323, 13 L. Ed. 439, denying jurisdiction where out-
standing title in third person under treaty set up as defense in ejectment;
Wynne v. Morris, 20 How. 5, 15 L. Ed. 801, denying jurisdiction because
claim made was not under any Federal statute; Verden v. Coleman, 1
Black, 474, 17 L. Ed. 162, denying jurisdiction where outstanding title
under treaty in thir4 person set up as defense, and jurisdiction claimed
thereon; Long v. Converse, 91 U. S, 113, 23 L. Ed. 23$, denying jurisdic-
tion when outstanding title of Federal assignee in bankruptcy who was not
a party set up as defense againstsofficers of State court; Miller v. Lan-
caster Bank, X06 U. S. 544, 27 L. Ed. 290, 1 Sup. Ct. 537, 538, denying
jurisdiction where petition by parties in possession to enjoin execution
of writ is based on claim that title has never passed out of a corporation
not a party, on account of inability of defendant under Federal banking*
act to acquire title ; Giles v. Little, 134 U. S. 650, 33 L. Ed. 1064, 10 Sup.
Ct. 625, applying by analogy denying jurisdiction where outstanding title
in person not a party under judgment of Federal courts set up as ground
thereof; Connor v. Scott, 4 Dill. 246, Fed. Cas. 3119, where Federal Circuit
Court took jurisdiction of suit to enforce lien where defendant claimed
under Federal assignee in bankruptcy; United States v. Old Settlers, 148
U. S. 469, 87 L. Ed. 525, 13 Sup. Ct. 667, holding that court has jurisdiction
to determine rights under Indian treaty, but cannot go behind treaty to
pass bn matters settled thereby; Crystal etc. Co. v. Los Angeles, 82 Fed.
120, denying jurisdiction where both parties claiming under treaty with
Mexico, there was no controversy over construction thereof; dissenting
opinion in Gill v. Oliver, 11 How. 549, 13 L. Ed. 808, arguing that court
has jurisdiction where both parties claim under treaty, though treaty itself
not subject of construction; Baker v. Shy, 9 Heisk. 92, protecting right of
Frenchman to convey land in Tennessee under treaty and statute ; Nashville
etc. Ry. Co. v. Taylor, 86 Fed. 182, applying by analogy and holding Fed-
eral question involved where party not allowed equal privileges with all
others under State tax laws; Opinion of Judge Davis, 44 Me. 592, holding
question of right of suffrage of free colored persons not Federal question.
See also Mathew^ v. Zane, 7 Wheat. 208, note, 5 L. Ed. 436, majority deny-
ins^ jurisdiction where outstanding title under treaty set up as defense in
ejectment.
Distinguished in dissenting opinion in Henderson v. Tennessee, 10 How.
327,^ 13 L. Ed. 441.
What adjudications of Stat^ courts reviewable in Federal Supreme
Court. Note, 62 L. R. A. 521, 532.
Acts of confiscation passed by State during Bevolution vested titles in
State where comply legal title was previously vested in British subject.
Cited in Atherton v. Johnson, 2 N. H. 35*
\
1
381 MOSS V. RIDDLE. ^ 6 Cr. 351>358
5 Cr. 351-358, 3 L. Ed. 123, MOSS v. RIDDLE.
A bond cannot be delivered to obligee as an escrow.
Approved in Snowden v. State, 63 Tex. Cf. 442, 110 S. W. 443, and
Biebcor v. Qans, 24 App. D. C. 521, both reaffirming rule ; Blewitt v. Rail-
way Co., 49 Fed. 127, holding deed cannot be delivered to grantee in
escrow; United States v. Hammo'nd, 4 Biss. 285, Fed. Cas. 15,292, holding
good a plea of surety that bond delivered to principal obligor was not to
be delivered until cosurety joined and plaintiff bad notice; Bibb y. Reid,
3 Ala. 91, upholding similar pleas of sureties; Firemen's etc. Co. v. Mc-
Millan, 29«Ala. 161, holding where plea alleged delivery in escrow, pre-
sumption is of delivery to obligee and plea is demurrable; Morgan v.
Smith, 29 Ala. 286, where delivery of bill of sale to vendee held to convey
title; State v. Chrisman, 2 Ind. 132, sustaining demurrer to plea admit-
ting signing and not denying delivery of bond to obligee, but averring it
was done on condition that others should sign; Deardorf v. Foresman, 24
Ind. 483, holding, in absence of notic6 to payee, signing and delivery of
promissory note by sureties to maker on condition others will join before
delivery to payee and condition not performed, sureties liable; Hubble v.
Murphy, 1 Duv. (Ky.) 280, holding, when maker delivers to payee, latter 's
failure to perform agreement to obtain another on note no defense; Neely
V. Lewis, 5 Gilm. (111.) 32, holding delivery. to obligee for execution by
another surety not an escrow ; Brown v. State, 18 ^ex. App. 328, holding
agreement that there should be another surety on bail bond no defense
when delivered to sheriff; Miller v. Fletcher, 27 Gratt. (Va.) 412, 2} Am.
Bep. 362, collecting cases and holding no escrow when bond delivered to
obligee on condition; Johnson v. Branch, 11 Humph. 522, holding delivery
of bond to obligee upon condition liot an escrow; Lambert v. McClure, 12
Tex. Civ. App. 579, 34 S. W. 974, holding delivery of deed to grantee with
oral conditions an absolute delivery; Pope v. Latham, 1 Ark. 74, holding
delivery of bond to County Court clerk for sheriff an absolute delivery.
Escrows. Note, 130 Am. St. Bep. 929.
Parol agreement against contract taking effect until others sign.
Note, 45 L. B. A. 842.
Effect of delivery to grantee, subject to extrinsic condition. Note,
16 L. B. A. (N. 8.) 94S.
Frand consists in intention, which must be averred.
Approved in Hall v. McKinnon, 193 Fed. 581, 113 C. C. A. 440, in action
to recover possession of mining ground, court properly refused to give
instruction that location was a ''dummy location,'' where fraud was not
made an issue in the pleadings ; Cella v. Brown, 144 Fed. 754, mere allega-
tion that plan of reorganization between two railroads was fraudulently
designed, without specifically chai^ng that said companies participated
therein or specifying in what fraud consisted, is insufficient; Williamson
V. Boardsley, 137 Fed. 469, 69 C. C. A. 615, in suit to set aside convey-
ances of realty by executor, mere allegations that sales were fraudulent,
and that proceedings were fraudulently conducted, without averment of
5 Cr. 358-361 NOTES ON U. S. REPORTS. 382
6ubs,tantive facts censtituting fraud, are insufficient; Bartol v. Walton e^c.
Whann Co., 92 Fed. 14, holding false statement of facts with fraudulent
intent must be alleged to authorize rescission of stock subscription; Har-
gadine-McKitrick Dry Goods Co. v. Bradley, 4 Ind. Terr. 257, 69 S. W.
867, allegation that mortgage was fraudulent because made for purpose
of defeating creditors was not sufficient to charge fraud; Brooks v.
O'Hara, 2 McCrary, 649, 8 Fed. 532, sustaining demurrer to bill for not
averring fraud with sufficient particularity; Feency v. Howard, 79 Cal.
528, 12 Am. St. Bep. 164, 21 Pac. 985, holding where fraudulent intent
hot alleged, fraud cannot be set up as defense in suit to declare a trust;
TVoodroof v. Howes, 88 Cal. 190, 26 Pac. 113, holding allegation of fraud
and intent in terras sufficient; Ross v. Webster, 63 Conn. 68, 26 Atl. 478,
holding ''earnest solicitation" on part of plaintifE not fraud; Robson y.
Hai'well, 6 Ga. 614, refusing to infer fraud from averment of parol agree-
ment declaring trust and failure to execute it; Gray v. Earl, 13 Iowa, 190,
holding inadmissible evidence of fraud, where not alleged; Savage v. Davis,
7 Wend. 225, holding averment of fraud and intent in plea material
averment.
Distinguished in Carter v. Carter, 5 Tex. 99, holding rule to he in that
State that fraud need not be expressly pleaded.
Trayene caimot be of matters of inducement or conclnsions of law.
, Cited in Finley v. Quirk, 9 Minn. 201, 86 Am. Dec. 97, where defendant
attempted to avail himself of new matter under a denial of allegations of
complaint; Griggs v. St. Paul, 9 Minn. 234, sustaining demurrer to com*
plaint where no traversable facts alleged.
Refusal to allow amended plea to be filed after plea held bad is not ground
for reversaL
Cited in Romaine v. Norris, 8 N. J. L. 82, holding refusal to hear motion
for nonsuit out of regular order not error because in discretion of court.
Delivery to one of several obligees constituting a partnersblp is delivery
to all.
Approved in White Sewing Mach. Co. v. Saxon, 121 Ala. 402, 25 South.
786, holding sureties signing bond on condition that others sign before
delivery to obligee are not bound where no other signatures are procured;
Dils V. Bank of Pikeville, 109 Ky. 763, 60 S. W. 716, holding accommoda-
tion indorsers are liable on note in spite of agreement that note was not
to be accepted or discounted until other indorsement procured ; Hudspith 's
Admr. v. Tyler et al., 108 Ky. 523, 56 S. W. 974, holding though surety
not released by parol agreement to procure other sureties he may recover
damages for breach of agreement.
Miscellaneods. Cited erroneously in Boyd y. Whitfield, 19 Ark. 461.
5 Cr. 358^61, 3 L. Ed. 125, BBEKT y. CHAPMAN.
Five years' adyerae possession of slave by Virginia statute glyes title, oa
which action may be maintained for recovery.
383 BRENT v. CHAPMAN. 5 Cr. 358-361
Approved in Lightfoot ▼. Davis, 198 N. T. 265, 139 Am. St Bep. 817, 19
Ann. Gas. 747, 29 L. B. A. (N. S.) 119, 91 N. E. 583, thief can acquire no
title by adverse possession; Shelby v. Guy, 11 Wheat. 371, 6 L. Ed. 497,
holding wheire title to slave vested in vendor by statute in Virginia by
adverse i>ossession, it wad available defense for vendee in Tennessee;
Mitchell v. Wilson, 3 Cr. C. C, 249, Fed. Cas. 9672, holding possession of
slave during period of limitation gave title ; Sims v. Canfield, 2 Ala. 561,
holding title to slave acquired by adverse possession of defendant execu>
tor and his testator all together for more than six years ; Goodman v.
Munks, 8 Port. 95 (overruled in Jones v. Jones, 18 Ala. 253), holding bar
of South Carolina statute of limitations an available defense in Alabama
against recovery on note made in South Carolina (overruled in Jones v«
Jones, 18 Ala. 253) ; Sadler v. Sadler, 16 Ai'k. 643, holding peaceable
possession of slave for more than five years vested title under Arkansas
statute; Hicks v. Flint, 21 Ark. 465, holding possession of horse in Arkansas 1
daring i)eriod of limitation vested title and action maintainable to recover
^lien; Paschal v. Davis, 3 Ga. 265, holding title to slave vested in vendee
by possession during period of statute of limitation where slave belonged ^
to vendor's intestate; Wynn v. Lee, 5 Ga. 232, holding title to slave ac-
quired by possession in Mississippi during period of statute may be set
up in Georgia; Stanley v. Earl, 5 Litt. 282, 15 Am. Dec« 67, holding title
was acquired by adverse possession ot slave for five years and recovery
may be had upon such title from former owner ; Cook v. Wilson, Litt. Sel.
Cas. 439, holding adverse possession of slave for twenty years gave title
upon which to base action for recovery; Bunce v. Bid well, 43 Mich. 546,
admitting instructions to jury that adverse possession of land for twenty
years gave perfect title; dissenting opinion in Alexander v. Burnet, 5
Rich. ?09, holding that possession of slave during statutory period would ^
give title, though party claiming thereunder held in another State ; Kegler
V. Miles, Mart. & Y. 430, 17. Am. Dec. 822, holding adverse possession of
slave for three years, vested title upon which recovery could be had ; Mor-
ris V. Lyon, 84 Va. 334, 4 S. E. 735, holding adverse possession of breast-
T)in more than five years vested title; Hall v. Webb, 21 W. Va. 325, hold-
ing where title once vested to land, through ^dverse^ possession, subsequent
repeal of statute of limitations cannot disturb title; Thomburg v. Bowen,
37 W. Va. 543, 16 S. E. 827, holding subsequent purchaser for value of
horses acquired title by five years' possession, notwithstanding original
fraud of vendor; Sprecher v. Wakeley, 11 Wis. 440, holding after expira-
tion of statute of limitations, subsequent statute cannot renew right to
bring ejectment for lands; Hamilton v. Cooper, Walker, 544, 12 Am. Dec.
590, holding plea g(thd of title acquired to slaves by adverse possession in
another State ; Huffman v. Alderson^ 9 W. Va. 623, arguing that right to be
released from payment of ndte is vested by statute of limitations expiring
and cannot be divested by new statute.
Distinguished in Townsond v. Jemison, 9 How. 419, 13 K Ed. 199, hold-
ing a statute of limitations which merely bars recovery on» contract not
available in another jurisdiction; Powell v. Wragg, 13 Ali. 164, holding
\
6 Cr. 361-368 NOTES ON U. S. REPORTS. » 384
possession founded upon bill of sale in fraud of rights of vendor's credit-
ors does not give title; Jones v. Jones, 18 Ala. 253, deciding though
recovery on contract barred by Georgia statute not available defense in
Alabama; Moseby v. Williams, 5 How. (Mi^s.) 524, holding possession,
not adverse, for five years, did not give title in Tennessee $ Smoot v^
Wathen, 8 Mo. 524, holding adverse possession did not appear; Moore v.
State, 43 N. J. L. 205, 39 Am* Rep. 560, holding rule does not apply to
prevent prosecution for crime oarred by statute after statute repealed.
Modified in Alexander v. Burnett, 5 Rich. 203, 204, holding possession of
slave during statutory period does not avail when party claiming there-
under held in another State; dissenting opinion in Hunt v. Fay, 7 Vt. 189,
arguing that New Hampshire creditor of deceased barred by' New Hamp-
shire statute may present claim to ancillary administrator in Vermont;
Coleman v. Holmes, 44 Ala. 126, 4 Am. Bep. 122, holding valid an enact-
ment in 1865^ omitting time from jC861 to 1865, in computing statute of
limitations; Cunningham v. Frandtzen, 26 Tex. 41, where court refused to
decide whether rule applied under Texas statute. /
Effect of the bar of the statute of limitations. Note, 95 Am. St. Rep.
671.
Supreme Court will entertain wilt of error where case decided ^upon agreed
statement.
Cited in Suydam v. Williamson, 20 How. 434, 15 L. Ed. 980, in general
discussion upon methods of getting facts in record for appellate court;
Derby v. Jacques, 1 Cliff. 433, Fed. Cas. 3817, holding court will hear case
on a^eed statement; United States v. Eliason, 16 Pet. 301, 10 L. Ed. 972,
where Supreme Court entertained writ of error to Circuit Court in District
'of Columbia from judgment rendered on agreed statement; Holbrook v.
Allen, 4 Fla. 101, where Florida Supreme Court entertained appeal from
judgment upon agreed statement.
Miscellaneous. Cited in Athcrton v. Johnson, 2 N, H. 35.
5 Cr. 361-363, 3 L. Ed. 126, AXTIJ) Y. NORWOOD.
9
Four years' adverse possession of chattel cannot be conliected wltb f ouz
years' previous possession by another under owner to constitute fraudulent loan
within Virginia statute.
Cited in Lightfoot v. Strother, 9 Leigh, 454, holding where loanee of
slave sold her, purchaser could not add his subsequent possession to posses-
sion of loanee to make loan fraudulent.
5 Cr. 363-368, 3 L. Ed. 126, SZiACUM ▼. SDiOCS ft WISE.
Discharge of Insolvent who Is In custody by magistrate who is surety on
Ms bond Is void.
Cited in Eldridge v. Bush, Smith (N. H.), 297, holding discharge void
because obtaihed by fraud, and sureties on bond liable.
385 UNITED STATES v. VOWELL. 5 Cr. 368-372
Distinguished in Tappan v. Bellows, 1 N. H. 108, holding sheriff not
liable for escape of prisoner for debt for giving him liberty of yai'd upon
his giving bond with two sufficient sureties.
5 Cr. 368-372, 3 L. Ed. 128, UNITED STATES ▼. VOWELK
IHitiee on Imports accrue on arrival at port of entry and not before.
Approved in Dooley v. United States, 183 U. S. 165, 46 L. Ed. 131 (see
21 Sup. Ct. 762), upholding Foraker act taxing goods imported into Porto
Rico from United States; Franklin Sugar Refining Co. v. United States,
178 Fed. 747, date of importation's date of arrival at port of entry and
not date of liquidation, or even of entry; United States v. Hartwell Lum-
ber Co., 142 Fed. 436, where merchandise was imported shortly before act
of 1897 went into effect, and importers tendered entry before importation
complete, which tender was rejected, and not renewed till after act was
effective, provisions of section 33 of skid act governed; Ellison v. United
States, 136 Fed. 972, imported merchandise entered at one port for im-
mediate transportation to anotlier cannot be entered for consumption at
latter port before its arrival within limits of that port; American Sugar
Refining Co. v. Bidwell, 124 Fed. 679, 680, 681, holding goods arriving from
Philippines after proclamation of April 11, 1899, were not subject to duty;
American Sugar Refining Co. v. Bidwell, 124 Fed. 685, holding sugar
shipped from Porto Rico which did not arrive in New York until after
Porto Rico was annexed was not subject to duty ; Arnold v. United States,
9 Cr. 120, S L. Ed. 676, holding duty did not accrue until' arrival at port
of entry ; Meredith v. United States, 13 Pet. 494, 10 L. Ed. 262, holding
duti^ on goods constituted personal debt against importer from arrival
at port of entry; Saltonstall v. Russell, 152 U. S. 631, 88 L. Ed. 577, 14
Sup. Ct. 734, holding assessment of duties on cargo at. first port of entry
final; United States v. Dodge, Deady, 126, Fed. Cas. 14,973, where salt
discharged at Astoria and subsequently written entry made, held duty
accrued at time of arrival; United States v. Boyd, 24 Fed. 694, holding
where fraudulent attempt made to land goods free, duty accrued imme-
diately upon arrival with intent to unlade ; McLean v. Hager/ 31 Fed. 606,
holding seizure for nonpayment of duties illegal where ship entered San
Francisco for purpose of transferring cargo without landing; United
States v. Lyman, 1 Mason, 499, Fed. Cas. 15,647, holding duty was due
from inaporter immediately upon arrival; United States v. Segars, 27 Fed.
Cas. 1017, holding duties a personal liability accruing at time of arrival,
which cannot be deducted from amount of appraisement; United States
V. Sugar, 1 Abb. (U. S.) 423, note. Fed. Cas. 16,666, quoting opinion in
United States v. Segars, supra; United States v. Arnold, 1 Gall. 353, 354,
358, Fed. Cas. 14,469, holding duties did not accrue until arrival at port of
entry; Prince v. United States, 2 Gall. 208, Fed. Cas. 11,425, holding prize
brought in before, but not condemned till after, act reducing duty on prize
goods not entitled to benefit of act; Enders v. Breene, 4 Ri^d. 445, holding
duties a personal debt against importer from arrival at port of entry, and
1—26
5 Cr. 368-372 NOTES ON U. S. REPORTS. 386
his bondsmen who have paid them money be substituted as creditors in
equity in place of government.
Importation is complete when Tessel arrives at port of entry and not before.
Approved in Hartwell Lumber Co. v. United States, 128 Fed. 3fy9, hold-
ing tender of entry of merchandise after its arrival within customs collec-
tion district, but before it reaches port, is invalid, and collector may reject
it; Brown v. Maryland, 12 Wheat. 453, 6 L. Ed. 690, holding State license
tax on importers of foreign goods unconstitutional because external com-
merce does not cease until introduction of goods into country; Harrison
V. Vose, 9 How. 381, 13 L. Ed. 183, holding when vessel merely touched
at Kingston for advices not an arrival; United States v. Cigars, 2 Curt.
437, Fed. Cas. 16,450, holding arrival at port of .entry with intent to unlade
an importation and without manifest incurs forfeiture; United States v.
Dodge, Deady, 126, Fed. Cas. 14,973, where cargo of salt held imported
from time when brought within port of entry with intent to unlade, and
not from time of subsequent written entry at custom-house ; The Gertrude,
3 Story, 71, 2 Ware, 180, Fed. Cas. 5370, holding where vessel driven on
shore by stress of weather, goods not imported ; The Cargo ex Lady Essex,
39 Fed. 767, holding where cargo unladen on account of stress of weather
not a violation of law; Kidd v. Flagler, 54 Fed. 369, holding exportation
complete when goods landed in foreign territory; Flagler v. Kidd, 78 Fed.
344, holding exportation not complete if goods landed temporarily with
intent to return; The Coquitlam, 77 Fed. 751, 48 U. S*^App. 116, holding
a casual entry of foreign vessel in United States waters to transfer oai^o
when not bound to United States not an arrived within revenue laws; The
Mary, 1 Gall. 209^ Fed. Cas. 9183, holding not an importation where vessel
driven into port by stress of weather; United States v. Merriam, 26 Fed.
Cas. 1239, holding act providing penalty for false entry not repealed by
act providing, penalty for illegal importation because latter completed
before former can be done; Enders v. Brune, 4 Rand. 445, holding impor-
tation was complete upon arrival in port of entry; United States v. Ar-
nold, 1 Gall. 358, Fed. Cas. 14,469, holding importation not complete until
arrival at port of entry; dissenting opinion in Keck v. United States, 172
U. S. 463, 43 L. Ed. 405, 19 Sup. Ct. 254, arguing as to meaning of word
** smuggle.'*
Distinguished in Waring v. Mayor, 8 Wall. 120, 19 L. Bd. 345, holding
where port of Mobile permanently obstructed by shoals, 4mportation took
place when cargo delivered to lighters outside.
Miscellaneous. Cited 'generally in United States v. Reiter, 27 Fed. Cas.
779.
NOTES
ON THB
UNITED STATES REPORTS.
VI CRANCH.
6 Cr. S-8, 3 L. Ed. 136, SCOTT v. NEOBO BEN.
In spite of amUgiioiu terms, court will endeavor to constme statute so M
to accompliiOi its intent.
Cited to this point in Commonwealth v. Baird,v4 Serg. ft B. 145.
6 Cr. 8^-29, S L. Ed. 136, FIELD ▼. HOUaAND.
Auditors are not arbiters. They do not decree, but prepare materials ftom
which decree may be made.
Cited in Dorsey v. Hammond, 1 Bland Ch. 469, 470, as to character of
auditor's office and duties.
Auditor's report does not conclude court, which may, on exceptions filed,
look into evidence and direct issue, which it may reyo]|e.
Approved in Pepper v. Addicks, 163 Fed. 407, in suits by receiver of cor-
poration for profits wrongfully made by director,, court not bound to
appoint master to, take account'; Briggs v. Neal, 120 Fed. 228, holding
reference to master may be made where bill shows necessity for taking
account; In re Nethaway, 108 Minn. 47, 121 N. W. 421, court might try
equity case itself after submitting question to jury; City of Memphis v.
Brown, 20 Wall. 322, 22 L. Ed. 272, upholding right of court upon notice
to parties to refer matter to master for decision before cause is ready for
decree; Garsed v. Beall, 92 U. S. 694, 23 L. Ed. 690, as supporting pro-
pnety of reference in case of greatly involved questions of fact; Fitton
V. Phoenix Assur. Co., 23 Blatchf. Ill, 23 Fed. 4, as supporting right of
Circuit Court to send issues to jury in equity case under section 648,
Revised Statutes; Pulliam v. Pulliam, 10 Fed.* 27, Fed. Cas. 11,463a, as to
duty of court of equity before making reference to ascertain facts and
principles for guidance of master; Simonds Rolling-Machinery Co. v.
Hathom Mfg. Co., 83 Fed. 492, as to right of Circuit Court to permit
inquiries by master incidental to principal labor which rests upon court;
May V. May, 19 Fla. 394, holding that where facts and law are not in
doubt, and it is plain what decree should be made^ chancellor need not
(387)
\
6Cr.8-29 NOTES ON U. S. REPORTS. 388
state an account either before rendering decree or in body of it; dissent-
ing opinion in Jenkins v. International Bank, 97 111. 581, as to right of
court before reference to determine rights of parties by interlocutory de-
cree, and settle rules to govern master; Head v. Head's Admr., 3 A. K
Marsh. 120, upholding right of court of equity to complete decision of
controversy without reference, wliere questions are legal; McKim v.
Thompson, 1 Bland Ch. 160, maintaining right of court to render inter-
locutory decree from facts as presented without master's report; Holmes
V. Hunt, 122 Mass. 513, 28 Am. Rep. 383, as to right of Chancery Court
to refer matters of account to auditors, there being no master in chancer)';
dissenting opinion in Hill v. Jones, 2 Dev. Eq. 109, upholding right of !
court, if judgment on issue ordered is not satisfactory, to set it aside or
decree against it without setting it aside.
Questioned in Phoenix etc. Life Ins. Co. v. Grant, 3 McAr. D. C. 48, issue
of absolute payment should have been tried by court before referring case
to auditor for account or marshaling of securities.
An interlocutory decree is an Implied discharge of previous onLer directing
an issue.
Cited to this point in Lane v. Kingsberry, 11 Mo. 408, holding granting
a new trial impliedly sets aside a former judgment.
In suit by purchasezs from Judgment debtor to set aside title to land
obtained by levy of execution, answer of Judgment creditor is evidence against
plaintiffs.
Cited in Lenox v. Natrebe, Hempst. 257, Fed. Cas. 8246c, holding that
answer of one cod ef end ant, though not evidence against another, may be
evidence against complainant; West v. Randall, 2 Mason, 205, Fed. Cas.
17,424, holding answer of one codefendant not evidence against another;
Chambliss v. Smith, 30 Ala. 368, to same gentjral rule; Barraque v. Siter,
Price & Co., 9 Ark. 547, holding answer of one defendant not evidence
against codefendant, because no cross-examination is allowed; Whiting v.
Beebe, 12 Ark. 563, holding answer of one defendant evidence against co-
defendants claiming under or through him as purchasers pendente lite;
Pleasanton v. Raughley, 3 Del. Ch. 129, holding that while such answer
is not evidence against codefendant, it is evidence in favor of him so far
as responsive; Administrators of Ligon v. Rogers, 12 Ga. 292; Clayton v.
Thompson, 13 Ga. 208, holding such answer evidence against codefendant
where relation of partners subsists or there is privity between them;
Robinson v. Sampson, 23 Me. 389, to general rule; case recognizes excep-
tions to rule, but does not come within them; Powles v. Dilley, 9 Gill, 237,
as modifying rule excluding defendant's answer as evidence against co-
defendant; Jones V. Magill, 1 Bland Ch. 198, holding that answer of de-
fendant binds those claiming under him; Lingan v. Henderson, 1 Bland
Ch. 267, as raising exception to general rule where one codefendant claims
under another; Mills v. Gove, 20 Pick. 34, where codefendant was dei>osi-
tary to chattel claimed by plaintiff and defended under title of another
defendant, and holding of principal case was approved; Etheredge v. Par-
m.:
r -
J* -
it I '
389' FIELD V. HOLLAND. 6Cr.8-29
tain, 10 Rich. Eq. 216, where facts were similar; Salmon v. Smith, 58 Mist.
'ofb 409, holding answer of defendant responsive to bill, to inure to benefit
35 :. of codefendants, and that where such answer shows plaintiff not entitled
itL^- to relief, latter must overcome it to recover; Bellows v. Stone, 18 N. H.
la*. 472> as giving same effect to answer where distinction between matters
te > responsive to bill and those of defense set up by way of avoidance was
, 1 not raised; Miles v. Miles, 32 N. H. 166/64 Am. Dec. 867, holding answer,
so far as responsive to bill, coiiclusive in his favor until overcome, but
requiring matters set up in defense and avoidance to be independently
proved; Brown v. Bulkley, 14 N. J. Eq. 300, holding that plaintiff cannot
impeach answer of defendant upon bill of discovery on account of latter 's
want of integrity; Woodcock v. Bennet, 1 Cow. 743, 13 Am. Dec. 679, an
answer responsive to. a bill and within the discovery sought is legal evi-
dence; Dade v. Madison, 5 Leigh, 405, helding, in action upon note, that
answer of drawer that it was founded upon gaming consideration is not
evidence against drawee, no other evidence being given and notice being
denied by latter.
Denied in Blakeney v. Fei^son, 14 Ark. 655, 656, 659, 660, 664, except
'^ in eases where codefendant, by admissions or otherwise, binds himself by
declaration or answer of other codefendant; Ward v. Davidson^ 2 J. J.
Marsh. 445, as opposed to Kentucky authority; Jones v. Hardesty, 10 Gill'
& J. 415, 32 Am. Dec. 185, as opposed to an otherwise unbroken series of
authorities; both English and American; Winn v. Albert, 2 Md. Ch. 176,
as to point criticised in above citations, namely, that answer of defei^d-
ant is evidence against codefendant claiming under him.
Gritieised in Dunn v. Graham, 17 Ark. 69, and Glenn v. Baker, 1 Md.
Ch/77, id, as opposed to Maryland doctrine so far as it holds answer of
defendant evidence against codefendants claiming under him; Christie v.
Bishop, 1 Barb. Ch. 116, 117, 121, as opposed to authority in so far as it
allows answer of one defendant to be evidence against 'codefendant;
Wright V. Bates, 13 Vt. 351, holding that such answer should not be evi-
dence against codefendants, except such as acquire title subsequent to an-
swer, as where grantee of mortgagee is held bound by his grantor's
answer; Pettit v. Jennings, 2 Rob. (Va.) 681, holding assignee of bond
not affected by answer of assignor or obligee, his codefendant, J;hough bond
was based upon gamiiig consideration.
Limited in Schwarz v. Wendell, Walk. Ch. 296, construing answer.
Upon debtor's failing to direct application, power to make such application
devolves upon creditor.
Approved in Hopper v. Hopper, 61 S. C. 137, 39 S. E. 370, holding creditor
may apply general payments to barred claim;. Carson v. Cook County Liquor
Co., 37 Okl. 16, Ann. Gas. J.915B, 695, 130 Pac. 304, general direction by
debtor, prior to making payments, as to their application is sufficient ; Page
V. P«atton, 5 Pet. 310, 8 L. Ed. 137, holding election as to application af
payments conclusive; note to Lanusse v. Barker, 3 Wheat, 155, 4 L. £d.
369, upholding creditor's right to apply, in default of debtor; Wendt v^
Ross, 33 Cal. 657^ holding that there was sufficient evidence of appliea-
6Cr.8-29 NOTES ON U. S. REPORTS. 390
tion by the direction of one or agreement of both parties ; Pickering v. Day,
3 Houst. 538, 95 Am. Dec. 310, holding that creditor may exercise his
option any time before account settled or action brought; National Ma-
haiwe Bank v. Peck, 127 Mass. 301, 84 Am. Rep. 370, upholding right of
bank holding personal and official notes of depositor, latter being secured
by surety's indorsement, to apply depositor's account to either note,
though secured note matured first; Shortridge v. Pardee, 2 Mo. App. 366,
holding that creditor may exercise his option any time before suit and
need not consult debtor's benefit; Christnot v. Montana Grold etc. M, Co.,
1 Mont. 48, as to creditor's right to apply, upon default of debtor, where
creditor entitled to mechanic's lien had two accounts against debtor;
National Bank of Newburgh v. Bigler, 83 N. Y. 64, holding that creditor
may apply proceeds of collateral security to any notes due when money
is received; Jones v. Benedict, 83 N. Y. 86, to direct point; Bank of Cali-
fornia V. Webb, 94 N. Y. 472, allowing creditor to apply more than a year
after payments made ; Gaston v. Barney, 11 Ohio St. 514, allowing creditor
to apply to unsecured notes regardless of interests of sureties on remain-
ing notes; Jones v. Williams, 39 Wis. 308, holding that debtor must have
had opportunity to apply and failed to do so before creditor's right arises,
hence that where debtor dies without opportunity to apply creditor's right
does not arise.
Where parties do not, court may apply payments so as to eztinguidi lint
those debts for whicli security is most precarious.
Approved in Boatmen's Bank v. Fritzlen, 221 Fed. 168, 137 C. C. A. 54,
applying rule to case of marshaling assets; Tolerton etc. Co. v. Roberts,
115 Iowa, 476, 91 Am. St. Bep. 172, 88 N. W. 966, chattel mortgagor hav-
ing right to direct application of voluntary payments cannot direct applica-
tion of foreclosure proceeds; National City Bank v. Torrent, 130 Mich.
263, 89 N. W. 940, holding where owner of claim agreed to assign to another
so mufeh thereof as should remain unsecured on certain date, granishee
process in suit on claim was security within meaning of contract, en-
titling owner of claim to retain it subject to examination of garnishees
as to their liability; Wardlaw v, Troy Oil Mill, 74 S. C. 371, 64 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; Page v. Patton, 5 Pet. 310,
8 L. ISd. 137, holding that debt of administrator against estate having
been paid, amount should be credited to fund out of which paid, which,
under facts of case, was not administration fund; Boody v. United States,
1 Wood, & M. 168, Fed. Cas. 1636, holding that court should apply to
oldest debt; Whetmore v. Murdock, 3 Wood. & M. 395, Fed. Cas. 17,510,
holding that if one demand is secured and another not, court will apply
to latter; Schuelenburg v. Martin, 1 McCord, 350, 351, 2 Fed. 749, 750,
where earlier items of account were secured and later items unsecured;
Nichols, Shepherd & Co. v. Knowles, 3 McCord, 479, 17 Fed. 495, holding
that presumption favors application to least secured debt; Coons v. Tome,
9 Fed. 536, favoring such application as most favorable to creditor; Kort-
/
391 FIELD V. HOLLAND. 6Cr.a-29
i
lander v. Elston, 62 Fed. 184, 6 U. S. App. 283, where installment debt
secured as to whole by insurance policy and as to first part by ^arantee,
creditor could apply proceeds of policy to part of debt not covered by
guaranty; National Bank v. Mechanics' Nat. Bank, 94 U. S. 439, 24
L Ed. 178> holding that neither party can make application after trial
begim; The Katie O'Neil, 65 Fed. 117, 118, to point that court should
make application to least secured debt; also in following: Robinson's
Admrs. v. Allison, 36 Ala. 531, Randall v. Pettes, 12 Fla. 536, Wilhelm
V. Schmidt, 84 111. 188, King v. Andrews, 30 Ind. 430, Bond v. Armstrong,
88 Ind. 69, Blanton v. Rice, 5 T. B. Mon. 254, McDaniel v. Barnes, White
& Co., 5 Bush (Ky.), 186, Poulson v. Collier, 18 Mo. App. 608, Goetz
V. Piel, 26 Mo. App. 641, 643, Hilton v. Burley, 2 N. H. 196, Smith v.
Steam 3iiU, 66 N. H. 615, 34 Atl. 154, Clarksville B. & L. Assn. v. Ste-
phens, 26 N. J. Eq. 356, Webster v. Singley, 63 Ala. 210, 25 Am. Eep. 610.
holding that mortgagor receiving money from Wrtgaged property must
apply to mortgage and not to unsecured debt; Mnrdock y. Clarke, 88
Cal. 390, 26 Pac. 603, holding that court acting in accordance with justice
and equity will respect rights of both parties; California Nat. Bank v.
Ginty, 108 Cal. 153, 41 Pac. 40, recognizing right of creditor holding col-
lateral security to have it applied to least secured debt; Stamford Bank
V. Benedict, 15 Conn. 443, holding, however, that court will not apply to
andue debt if there be one already due; Snyder v. Robinson, 35 Ind. 315,
9 Am. Bep. 74l, where purchaser of land assumed portion of mortgage
thereon and later made genei^al payment on mortgage debt, which court
applied to portion assumed by him; First Nat. Bank v. Hollin^worth,
78 Iowa, 577, 579, 43 N. W. 537, 638, to point that payments upon open
running account should be applied to items in order of date; Burks v.
Albert, 4 J. J. Marsh. 99, 20 Am. Dec. 211, holding that in applying pay-
menjs, court will prefer note upon which there is no surety to one upon
which there is; Lash v. Edgerton, 13 Minn. 219, holding that court will
apply to interest before principal; Hersey v. Bennett, 28 Minn. 91, 41
Am. Sep. 275, 9 N. W. 593, following role; Caldwell v. Wentworth, 14
N. H. 438, raising an exception to general rule applying payment to
earliest debt; Stone v. Seymour, 15 Wend, 24, 29, 31, as holding that court
must consult benefit of creditor, as to which authorities are in conflict;
Camp V. Smith, 136 N. Y. 201, 32 N. E. 644, ^here debtor being liable
to creditor upon individual and upon joint debt, it was queried whether
court would apply payment to former; Moss v. Adams, 4 Ired. Eq. 53,
where creditor was allowed to apply long after payment to least secured
debt, debtor's insolvency intervening; Patterson v. Bank, 26 Or. 522,
38 Pac. 821, applying payments to oldest items in account regardless of
rights of accommodation indorser; Stafford v. Walker, 12 Serg. & B. 195,
applying successive payments of dues so as to avoid forfeiture of mem-
bership, because of arrears; Pierce v. Sweet, 33 Pa. St. 157, applying pay-
ments to debts as to which creditor had no lien; Morgan v. Tarbell, 28
Vt. 504, where payments to partnership taking old firm's accounts were
applied to old debts rather than to debts of new firm; Smith v. Loyd, 11
Leigh, 516, 87 Am. Dec. 622, holding that court should consult interests
6 Cr. 29-61 NOTES ON U. S. REPORTS. 392
of neither party, but only equity of case;^ Chapman v. Commonwealthi 25
Gratt. 747, where payments tp officer having had two successive bonds
were applied to bond under term of which made; Lingle v. Cook's Admrs.,
32 Gratt. 272, applying legacy to debt from legatee to testator and dis-
charging sureties thereon ; Smyths v. New England Loan etc. Co., 12 Wash.
^7, 41 Pac. 185, where in case of involuntary payment on guaranty it
was held that application should be to unsecured principal rather than
secured interest; Hempfield R. R. Co. y. Thomburg, 1 W. Va. 267, applying
right of way payments by railroad company to removal of buildings
rather than price of land, vendor "having lien for latter; Illsly v. Gray-
son, 105 Iowa, 687, 75 N. W. 518, applying rule in considering a question
of application of counterclaim in action for rent ; M. & M. Bank v. Evans,
9 W. Va. 389, and Reed v. Board of Education, 39 Ohio St. 638, ai^endo.
Criticised in Hersey v. Bennett, 28 Minn. 92, 41 Am. Bep. 276, 9 N. W.
594, applying payments to earlier items of continuous account, though
such items might be satisfied out of resulting trust in favor 'of creditor,
and later items could not be; Pattison v. Hull, 9 Cow. 771, as opposed
to weight of authority requiring court to consult benefit of debtor rather
than creditor; Norris v. Beatty, 6 W. Va. 483; Orleans County Nat. Bank
v. Moore, 112 N. Y. 555, 556, 8 Am. St. Bep. 784, 785, 20 N. E. 363, 364,
restricting application of rule in principal case to voluntary pa3rment8, not
to payments by process of law in applying which, priority and security
are disregarded; Blackmore v. Granbery, 98 Tenn. 283, 39 S. W. 230, ad-
hering to Story's rule in 9 Wheat. 720, 6 L. Ed. 199; Robinson v. Doolittle,
12 Vt. 249, holding that application by court should be to greatest benefit
of debtor.
Distinguished in McMillan v. Grayston, 83 Mo. App. 432, holding pro-
visions as to application of payments in chattel mortgage have no effeet
on proceeds of realty mortgage given as further seeurity.
Application of payments. Note, 96 Am. St. Bep. 61.
6 Or. 29-51, 3 L. Ed. 143, MAHYlSllND IKS. OO. T. WOOBS.
Construction of Insiirance policy may be according to constmction given
it in commercial world«
Cited in Ocean SS. Co? r. Aetna Ins. Co., 121 Fed. 884, refusing to admit
parol evidence to construe marine policy which was plain in its terms;
General Mut. Ins. Co. v. Sherwood, 14 How. 362, 14 L. Ed. 456, holding
that such construction may be governed by probable intent of parties; as
also in Hernandez v. Sun Mut. Ins. Co., 6 Blatchf . 325, Fed. Cas. 6415.
Master is not bound to inquire elsewhere than of blockading squadron, and
other knowledge will not dispense with warning.
Approved in The Adula, 176 U. S. 372, 44 L. Ed. 610, 20 Sup. Ct. 436,
upholding Guantanamo blockade; Prize Cases (Hiawatha), 2 Blackf. 686,
17 L. Ed. 482, holding that vessel cannot be captured except where there
is attempt to enter after warning ofE.
393 YOUNG v. GRUNDY. ^ 6 Cr. 51-52
Denied in* The Revere, 2 SpVagne, 117, Fed. Cas. 11,716, holding thjtt
only vessels ignorant of blockade are entitled to warning off and indorse-
ment.
Distingaished in dissenting opinion in The Adula, 176 U. S. 392, 44
L. Ed. 518, 20 Sup. Ot. 444, upon the question of notice of the Guantanamo
blockade. - ^
Liability of marine insurer for losses arising out of war. Note, 5
B. S. 0. 12, 16, 18, 28.
Miscellaneous. Cited in United States v. Bearnes, 24 Fed. Cas. 1052,
as to power of admiralty courts, holding that court has full power to
fine party who takes vessel from its custody without permission.
6 Cr. 51->52, S L. Ed. 149, YOUNQ V. OBUNDY.
If answBr neitlier admits nor denies allegations in bill, they must be iiroved
<m final beaxlng. Upon question of diasolntion of injunction they are taken as
Approved in In re Doran (Moorman v. Beard), 154 Ted. 489, 83 C. C. A.
265, applying rule to appeal in bankruptcy proceeding from order deny-
ing priority to claim ; Mason "v. Jones, 7 D. C. 255, biit holding answer to
contain sufficient denials ; Whitaker v. Middle States Loan etc. Co., 7 App.
D. C. 208, incomplete or evasive answer to bill in equity may be excepted
to, bat cannot be treated as admission; United States v. Low, 16 Pet. 168,
10 L. Bd. 925, applying rule to allegations of location of claim neither
admitted or denied ; Brown v. Pierce, 7 Wall. 211, 212, 19 L. Ed. 136, h.old-
ing that after lapse of time, however, answer taken as sufficient tends
to prove bill ; Board of Public Works v. Columbia College, 17 Wall. 528,
21 L. Ed. 691, where allegation^ in bill being denied, case was' brought
up on pleadings without further evidence; Robinson v. Cathcart, 2 Cr.
C. C. 600, 601, 603, Fed. Cas. 11,946, holding answer evidence for defend-
ant so far as responsive to bill ; Rogers v. Marshall, 3 McCord, 93, 13 Fed.
64; Wooster v. Muser, 20 Fed. 163, where answer was insufficient, but
orator traversed and joined issue and was required to overcome denials
and maintain his bill; Jones v. Lamar, 34 Fed. 470, holding that silence
as to point upon which bill in terms does not seek discovery does not war-
rant decree for specific amount; Whittemore v. Patten, 81 Fed. 528, up-
holding right of complainant to except to evasive answer in order to have
judgment of court as to its effect as denial or admission; Mason v. Jones,
16 Fed. Cas. 1042, applj^ng rule where motion was to dissolve injunction
against negotiating notes alleged to be vitiated by fraud; Blakeney v.
Ferguson, 14 Ark. 652, holding that complete failure to answer exception
taken to answer for incompleteness constitutes admission; Warfield v.
Gambell, 1 Gill & J. 510, holding that to give to defective answer effect of
admission, complainant must except to it; Dugan v. Gittings, 3 Gill, 165,
43 Am. Dec. 319, holding that answer of executrix admitting possession
of assets does not admit allegation of sufficiency of such assets; Briesch
T. McCauleyi 7 Gill^ 196, holding that where one defendant answers in
/
6 Cr. 52-53 NOTES ON U. S. REPORTS. 394
full, but others do not, his admissions do not conclude then:?^ Gartman v.
Jones, 24 Miss. 236, holding that allegations not responded to in answer
are in issue, and decree must accord with proof; Brockway v. Copp, 3 Paige,
545, and McArthur v. Phoebns, 2 Ohio, 424, arguendo.
Criticised in Neale v. Hagthrop, 3 Bland Ch. 576, 679, holding that un-
answered allegations in bill are deemed true and taken pro confesso.
Appeal does not lie from Interlocutory decree, dissolving Injunction.
Approved in Grahai^ v. Conway, 82 Mo. App.\651, holding appeal from
order dissolving temporary prohibition does not operate as supersedeas;
The Palmyra, 10 Wheat. 604, 6 L. Ed. 876, refusing to allow division of
cause so as to bring up part of appeal; Clark v. Shelton, Hempst. 208,
Fed. Cas. 2833b, Norton v. Hood, 12 Fed. 765, Blakely v. Fish, Hempst. 12,
Fed. Cas. 18,240, refusing to allow appeal, no final decree bein^ shown;
Thomas v. Woolbridge, 23 Wall. 288, 23 L. Ed. 186, refusing to allow ap|-
peal from such decree where bill was not dismissed before appeal; Kirwan
v. Murphy, 170 U. S. 209, 42 L. Ed. 1010, 18 Sup. Ct. 593, refusing
appeal from interlocutory order of Circuit Court for issue of temporary
injiinction; Johnson's Admrs. v. Henry's Exrs., Minor, 13, refusing writ
. of error; Qarrow v. Carpenter, 4 Stew. & P. 345, holding that appeal from
such decree d^es not revive injunction; Hicks v. Micl^ael, 15 Cal. HI, nor
does it create one where decree appealed from refused injunction; Russell
V. Pierce, 7 Port. 277, refusing to allow writ of error to such decree where
enabling - statute authorized appeal; Andrews v. Loveland, 1 Colo. 10;
Nacoochoe H. M. Co. v. Davis, 40 Ga. 317, requiring final judgment before
allowing writ of error; Pentecost v. Magahee, 4 Scam. 327, intimating
that where bill merely asks for injunction, order dismissinfi^ injunction
might be final and appealable; Cain y^. Foote, 8 Blackf. 464, refusing writ
of error in like case, though there was statutory appeal lost through fidl-
ure to perfect; Ringgold's Case, 1 Bland Ch. 17, holding final decree not
always necessary to appeal in Maryland; Cohn v. Lehman, 93 Mo. 684,
6 S. W. 270, refusing to allow action on injunction bond until final decree
in cause where given; Browne v. Edwards etc. Lumber Co., 44 Neb. 366,
62 N. W. 1072; Wood v. Dwight, 7 Johns. Ch. 296, holding that appeal
from order dissolving injunction does not suspend plaintifiTs right to
proceed with his execution.
e Cr. 52-53, 3 L. Ed. 149, BZ PARTE WILSON.
Habeas corpus is not the proper remedy, in case of arrest under civil
process.
Cited in In re Barry, 136 U. S. 613, 34 L. Ed. 609, 42 Fed. 124, refusing
habeas corpus to determine, between parents living apart, right to custody
of child; Wilson v. Marshall of D. C, 1 Cr. C. C. 609, Fed. Cas. 17,822,
releasing prisoner on habeas corpus where illegally held for debt greater
than due ; Bell v. State, 4 Gill, 306, 306, 45 Am. Dec. 132, refusing habeas
corpus where execution issued on erroneous judgment; Peltier v. Penning-
ton, 14 N. J. L. 318, refusing habeas corpus where sole question was aa
395 NOTES ON U. S. REPORTS. 6Cr.5a~8G
to regularity of process and validity of arrest; Cabe v. Cooper, 15 Johns.
156, where it appeared to court that habeas corpus did not apply to cases
of imprisonment, on cure process. \
Criticised in Bling v. McLean Asylum, 64 Fed. 343, 21 U. S. App. 481,
discussing habeas corpus to determine custody of insane person; Ex parte
Rollins, 80 Va. 318, 2 Brock. 475, Fed. Cas. 11,558, holding that doubt ex-
pressed in principal case no longer exists. ,
Right to bail pending attempt to avoid body execution. Note, L. R. A.
1915E, 341.
6 Cr. 63-70, 3 L. Ed. 150, ONEAIiB v. THOBNTOK.
Legislative power to resell lots already sold for default in payment con-
templates BtagLe resale only.
Cited in Stoddart v. Smith, 5 Binn. 362, construing similar statute as
constitutional and binding upon those who contract in view of it; New
Orleans etc. R. R. Co. v. City of New Orleans, 26 La. Ann. 521, as to gen-
eral legislative control over cities, and especially as to power of legislature
to grant railroad right of way through street in New Orleans; Wilder v.
Lumpkin, 4 Ga. 220, as to sacred character of private rights against ex
post facto legislation.
6 Or. 71-82, 3 I.. Ed. 155, KINO v. DELAWABE INB. OO.
If voyage is abandoned by reason of fear of seizure founded on false
information, no real cause for seizure existing, underwriters are not liable.
Distinguished in The Kronprinzessin Cecilie, 228 Fed. 959, master of
ship .held justified, usder eircmnstanees, when war was imminent between
Ms eonntry and that of his deatinationy in turning back.
Frustration of voyage because of existence of war as constructive
total loss within marine insurance policy. Note, Ann. Oas. 1916D,
885.
Liability of marine insurer for losses arising out of war. Note, 5
B. R. 0. 19, 29.
6 Or. 82-86, 3 L. Ed. 160, LEWIS V. HABWOOD.
Wbere particular breaches must be assigned and damages estimated by
jury, bond is not assignable under Virginia statute.
Cited in Winston v. Metcalf, 6 Ala. 760, 7 Ala. 841, holding that assignee
of bond given for hire of slaves cannot avail himself of obligor's failure
to keep condition as to clothing slaves; Brown v. Chambers, 12 Ala. 707,
where assignee of bond with reciprocal covenants was allowed to maintain
action thereon upon showing performance by assignor; Wilson v. McElroy,
2 Smedes & M. 250, construing statute authorizing assignees of choses in
fiction to sue thereon, with reference to assignment of judgments ; Shackle-
ford V. Franks, 25 Miss. 53, holding nonassignable, bond conditioned to be
void upon breach of warranty therein; Craig v. Craig, 1 Call (Va.), 484,
6 Cr. 86-148 NOTES ON U. S. REPORTS. 396
•
liolding assignee of bond with collateral conditions cannot sue thereon;
Henderson v. Hepburn, 2 Call (Va.), 238, holding that such bond is non*
assignable under act of 1748 ; Crist v. McDaniel, 15 Okl. 471, 82 Pac. 992,
arguendo.
6 Ot. 86» 3 I.. Ed. 161, BIDBLE v. 2iANt>EVILLB.
' Court below, upon mandate on reversal of its judgment in chancery suit,
may award costs and issue execution therefor.
Cited in Bumham v. Rangeley, 2 Wood. & M. 419, 422, Fed. Cas. 2177,
refusin<^ award of costs to defendant when bill dismissed for want of juris-
diction ; Tugman v. National Steamship, 24 Blatchf . 309, 30 Fed. 804, hold-
ing that State court may not award costs in suit wherein it has been deter-
mined it has no jurisdiction ; United States v. Southern Pac. R. R. Co., 56
Fed. 866, holding that Circuit Court may award costs in favor of United
States where mandate from Supreme Court directs decree in favor of
United States ; Elliott v. The Leah H. Miller, 8 Fed. Cas. 543, holding that
it rests ^vithin discretion of court to entertain motion for .reargument on
question of costs after decree.
6 Cr. 87-148, S L. Ed. 162, FI^ETOHEE V. FEOK.
If plea to any count of declaration is bad, Judgpient for defendant cannot
be sustained.
Cited in Tucker v. hee, 3 Cr. C. C. 686, Fed. Cas. 14,221, holding that
general verdict for plaintiff, where some of breaches of contract averred
in the contract are insufficient, is bad and judgment must be arrested.
Plea that Oovemor had authority to convey Starte lands, in answer to
declaration averring that legislature had not authority, is argumentative.
Cited in Roosevelt v. Fulton, 7 Cow. 7o, holding, however, that such plea,
though bad on demurrer, is cured by verdict.
•
Beclaration need not assign breach in words of the covenant, it is enough
that it shows substantial breach.
Approved in Murphy v. Lawrence, 2 Qa. 262, Pumeroy v. Bruce, 13^ Serg.
& R. 189, and Smith v. Lloj-d, 16 Gratt. 312, following rule.
Amendment of pleadings may be made in Supreme Court by consent of
parties.
.Approved in Kansas City etc. Ry. Co. v. Prunty, 133 Fed. 17, 66 C. C. A.
163, Circuit Court of Appeals may permit amendment in that court of re-
moval petition by supplying requisite averment of citizenship inadvertently
omitted where parties consent; Hudgins v. Kemp, 18 How. 534, 15 L. Ed.
512, following rule; Warren v. Moody, 9 Fed. 674, where amendments were
made in the Circuit Court upon appeal from the District Court; United
States v. Hopewell, 51 Fed. 800, 5 U. S. App. 137, where the doctrine was
applied upon appeal to the Circuit Court of Appeal; and in Fitchburg v.
Nichol, 85 Fed. 870, which holds that a defective allegation of citizenship
397 FLETCHER v. PECK. 6 Cr. 87-148
of the parties may, by consent ojf the parties, be corrected on appeal to
sustain the judgment.
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.
Grant of State lands may be made by legislature.
Approved in Doe v. Mobile, 9 How. 469, 13 L. Ed. 220, holding ythat a
grant of lands of Congress to the city of Mobile did not need the aid of
a patent; Strother v. Lucas, 12 Pet. 454, 9 L. Ed. 1154; Angle v. Chicago
etc. Ry. Co., 151 U. S. 40, Farmers' L. & T. Co. v. Chicago etc. Ry. Co., 39
Fed. 151, McNee v, Donahue, 76 Cal. 502, 18 Pac. 440, and in North P. R.
R. Co. V. Majors, 5 Mont. 126, 2 Pac. 325, grant may be made by law as
well as by a patent pursuant to law ; Daggett v. Bouewitz, 107 Ind. 278, 7
N. E. 901, Dolph V. Baraey, 5 Or. 202, and Blakesly v. Caywood, 4 Or. 288,
holdini^ grant of lands made by law in words of present grant vests an
immediate legal estate in the grantee; Canal Co. v. Railroad Co., 4 Gill &
J. 128, and Matheny v. Golden, 5 Ohio St. 366, it is said that "a State may
contract by act of its legislature," and that "a legislature has the capacity
to contract"; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 61, 6 Cr. 128, cited
as sustaining power of the legislature to make grants, though Constitution
does not expressly confer it ; citation in Houston etc. R. R. Co. v^ Kuechler,
36 Tex. 410, respecting power of political department to dispose of the pub-
lic domain probably has reference to this holding.
Unconstitutionality of statute is not to bf affirmed in cases of doubt.
Reaffirmed in Ogden v. Saunders, 12 Wheat. 294, 6 L. Ed. 634; Passenger
Cases, 7 How. 496, 12 L. Ed. 791; Legal Tender Cases, 12 Wall. 531, 20
L. Ed. 806; Livingston Co. v. Darlington, 101 U. S. 410, 25 L. Ed. 1017;
Civil Right Cases, 109 U. S. 27, 27 L. Ed. 845; Brown v. Walker, 161 U. S.
596, 40 L. Ed. 821, 16 Sup. Ct. 646 ; Scott v. McDonald, 165 U. S. 106, 41
L. Ed. 647, 17 Sup. Ct. 274; Illinois Central R. R. Co. v. State, 20 Fed.
471; Smith v. Fond dn Lac, 8 Fed. 295, 10 Biss. 427; Singer Mfg. Co. v.
Wright, 33 Fed. 128; United States v. Goldman, 3 Woods, 194, Fed. Cas.
15,225 ; Brown v. Walker, 70 Fed. 48 ; Baltimore etc. R. R. Co. v. Van Ness,
4 Cr. C. C. 600, Fed. Cas. 830 ; United States v. Rhodes, 1 Abb. 52; Fed.
Cas. 16,151 ; Owen v. Branch Bank, 3 Ala. 262 ; State v. Sorrells, 15 Arkr
679; Carpentier v. Atherton, 25 Cal. 569)^572; Cohen v. Wright, 22 Cal.
.308 ; Bourland v. Hildreth, 26 Cal. 228 ; Lick v. Faulkner, 25 Cal. 420 ; 01m-
stead V. Camp, 33 Conn. 551, 89 Am. Dec. 228; Cotton v. County Commis-
sioners, 6 Fla. 614 ; Wooley v. Watkins, 2 Idaho, 564, 22 Pac. 105 ; People
V. Marshall, 1 Qilm. 689 ; C. D. & V. R. R. Co. v. Smithy 62 111. 272, 14 Am.
Rep. 101; Harmon v. Chicago, 140 111. 399, 29 N. E. 740; Lafayette etc.
R. R. Co. V. Geiger, 34 Ind. 199; Coffman v. Keightley, 24 Ind. 514;
M'Comas v. Krug, 81 Ind. 332, 42 Am. Rep. 189; Nicholson v. Thompson,
5 Rob. (La.) 391, 404; Edwards v. Dupuy, 21 La. Ann. 695; Fisher v.
Auditor etc., 39 La. Ann. 450, 1 South. 185; State v. Taylor, 34 La. Ann.
981 ; Davidson v. Houston, 35 La. Ann. 493 ; Kennebec Purchase v. Laboree,
2 Me. 297, 11 Am. Dec. 97; Spring v. Russell, 7 Me. 291; Opinions in Pe]>
6 Cr. 87-148 NOTES ON U. S. REPORTS. 398
sonal Liberty Laws, 46 Me. 586; Eamcs v. Savage, 77 Me. 216, 52 Am.
Rep. 752; Ames v. Lake Superior etc. R. R. Co., 21 Minnr. 282; State v.
Fry, 4 Mo. 177; State v. Camp Sing, 18 Mont. 138, 56 Am. St Rep. 553,
44 Pac. 517 ; Evans v. Job, 8 Nev. 337 ; Harris v. Vanderveer, 21 N. J. Eq.
440 ; Payne v. Mahon, 44 N. J. L. 215 ; Baca v. Perez, 8 N. M. 196, 42 Pac.
165 ; Bloodgood v. M. & H. R. R. Co., 18 Wend. 50, 31 Am. Dec 347; Morris
V. People, 3 Denio, 394; Newell v. People, 7 N. Y. 122; Metropolitan Bank
V. Van Dyck, 27 N. Y. 460; Stanmire v. Tyler, 3 Jones, 211; Jacobs v.
Smallwood, 63 N. C. 126; Cincinnati etc. R. R. Co. v. Commissioners of
Clinton Co., 1 Ohio St. 83; Opinion of Hitchcock, C. J., 20 Ohio App. 5;
Kneedler v. Lane, 45 Pa. St. 330; Shollenbergcr v. Brinton, 52 Pa. St. 68,
89 ; State v. Narragansett, 16 R. I. 440, 16 Atl. 906 ; M'Cullough v. Brown,
41 S. C. 234, 19 S. E. 467 ; Railroad Co. v. Commissioners etc., 36 Tex. 407,
410; Henderson v. Beaton, 52 Tex. 38; Brimm v. Jones, 11 Utah, 205, 39
Pac. 825 ; Eyre v. Jacob, 14 Gratt. 426, 73 Am. Dec. 369 ; Roberts v. Cocke,
28 Gratt. 219; Ah Lim v. Territory, 1 Wash. 159, 24 Pac. 588; Bridges v.
Shallcross, 6 W. Va. 568; Newcomb v. Smith, 2 Pinn. 139.
Approved in United States v. Oregon-Washington R. & N. Co., 210 Fed.
380, upholding statute forbidding transportation of liquor from one State
to another to be used in violation of State law; Sunset Telephone & Tele-
graph Co. V. City of Pomona, 172 Fed. 837. 97 C. C. A. 251, refusing to
adjudge State statute void where it had been upheld by highest court of
State; Logan v. Postal Telegraph etc. Co., 157 Fed. 586, upholding law
penalizing telegraph companies for receiving messages relating to sale of
commodity on margin or for future delivery; Board of Commrs. v. Toll-
man, 145 Fed. 767, upholding Laws N. C. 1885, p. 439, c. 233, incorporating
railroad and authorizing issuance of county aid bonds; United States v.
Union Bi-idge Co., 143 Fed. 389, upholding 30 Stat. 1153, relating to altera-
tion of bridges; Grossman v. United States, 105 Fed. 610, upholding pro-
visions of Hawaiian annexation resolution relative to customs duties;
United States v. 288 Packages of Merry World Tobacco, 103 Fed. 454,
upholding act of July 24, 1897, § 10, cl. 3, prescribing contents of tobacco
packages; St. Louis etc. R. Co. v. Heyser, 95 Ark. 419, Ann. Oas, 1912A,
610, 130 S. W. 566, upholding Federal law giving right of action against
initial' carrier in interstate shipments for negligence of connecting carriers ;
State v. Byles, 93 Ark. 617, 37 L. R. A. (TX. S.) 774, 126 S. W. 96, uphold-
ing license tax imposed upon j^ddlers of certain enumerated articles;
Naganab v. Hitchcock, 25 App. D. C. 205, upholding statutes creating forest
reserve and restricting cutting of timber in Indian reservation; Thompson
V. Rig:?s, 6 D. C. Ill, upholding act of 1862 making treasury notes legal
tender; Welborne v. State, 114 Ga. 819, 40 S. E. 868, upholding act of
September 6, 1891, establishing Criminal Court of Atlanta; Noble v.
Bragaw, 12 Idaho, 272, 85 Pac. 904, holding State Constitution did not re-
quire whole statute to be republished, but only section amended; People v.
Butler Street Foundry, 201 111. 259, 66 N. E. 357, upholding anti-trust law
of 1891, as amended in 1893; Smith y. Indianapolis St. R. Co., 158 Ind.
427, 63 N. E. 850, holding Acts 1899, p. 260, relating to granting of fran-
chises to street railroads in certain classes of cities is not special law;
399 FLETCHER v. PECK 6 Cr. 87-148
SUte 7. Jack, 69 Kan. 402, 1 L. R. A. (N. S.) 167, 76 Pac. 9l6, witness
cannot refuse to testify as to his knowledge of violations of anti-trust act
on ground that section 10 does not grant him immunity from prosecutions
under Federal anti-trust law; Commonwealth of Kentucky v. Grinstead
etc. Tinsley, 108 Ky. 71, 56 L. R. A. 709, 56 S. W. 724, upholding Ky. Stats.,
§§ 3915, 3917, prohibiting combinations to fix prices ; Police Jury v. Mayor
etc. of Shreveport, 137 La. 1045, 69 South. 832, upholding statute which
denied to municipalities right to vote on local option separately from
parishes to which they belonged; State v. Poulin, 105 Me. 228, 134 Am.
St Bep. 543, 24 L. R. A. (N. S.) 408, 74 Atl. 121, upholding statute em-
powering Governor to appoint special attorney in 'any country to prosecute
for infractions of liquor law ; State v. Lubee, 93 Me. 421, 45 , Atl. 521,
upholding Acts 1897, chapter 285, relative to short lobsters; State v. Board
etc., 85 Minn. 167, 168, 88 N. W. 534, 535, construing chapter 122, General
Laws 1901, relating to board of control of penal and charitable institu-
tions ; State v. Barton, 91 Neb. 385, 136 N. W. 32, holding title of statute
sufficient; State v. Hamilton, 33 Nev. 425, 111 Pac. 1029, refusing, in face
of statute, to allow candidates nominated at primary to withdraw; Ex
parte Kair, 28 Nev. 146, IIS Am. St. Rep. 817, 6 Ann. Oas. 893, 80 Pac.
466, upholding Stat. 1903, p. 33, c. 10, imposing penalty on person working
more than eight hours per day in any mine or ore-mill ; Sharp v. Sweeney,
74 N. J. L. 429, 65 Atl. 860, holding statute satisfied reqtiirement that it
should embrace but one subject, expressed in its title; State v- Marron, 17
X. M. 312, 128 Pac. 487, upholding general appropriation act as against
objection that it treated of too many subjects ; State v. Miller, 87 Ohio St.
27, Ann. Oas. 1913E, 761, 44 L. R. A. (N. S.) 712, 99 N. E. 1079, upholding
statute providing for election of judicial oflBcer^ by separate ballot ; Ander-
son V. Ritterbusch, 22 Okl. 798, 98 Pac. 1017, upholding law providing
method by which taxes on omitted property might be assessed and col-
lected; Noble State Bank v. Haskell, 22 Okl. 84, 97 Pac. 605, upholding
law establishing fund to insure depositors against loss from bank failure ;
Ex parte Wilson, 6 Okl. Cr. 454, 119 Pac. 597, holding void law which for-
bade any person to have more than one quart of alcoholic liquor; Reising
V. City of Portland, 57 Or. 300, Ann. Oas. 1912D, 895, 111 Pac. 379, uphold-
ing civil se^ice provisions of charter as against constitutional provisions
regulating tenure of oifice ; Kadderly v. Portland, 44 Or. 143, 74 Pac. 719,
upholding initiation and referendum amendment to Constitution ; State v.
Cochran, 55 Or. 180, 105 Pac. 888, upholding law increasing number of
Supreme Court judges; Petterson v. Pilot Commrs., 24 Tex. Civ. 42, 57
S. W. 1007, upholding Rev. Stats., arts. 3792, 3798, relative to pilots ; High-
land Boy etc. Min. Co. v. Strickley, 28 Utah, 231, 107 Am. St. Rep. 711, 78
Pac. 297, upholding Sess. Laws 1901, p. 19, cff 25, relating to condemnation
for tramways for operation of mines ; Whitlock v. Hawkins, 105 Va. 249,
53 S. £. 403, upholding act ^ of 1906, validating acts done under amending
Code, c. 23, relating to assessments of lands; National Council etc. y.
State Council, 104 Va. 202, 51 S. E. 168, upholding act of February 17, 1900,
creating corporation with exclusive authority to grant charters to sub-
ordinate connoils, thereby annulling prior right of foreign corporation to
6 Cr. 87-^48 NOTES ON U. S. BEPORTS. 400
transact buHness of order in States Herold v. McQueen, 71 W. Va. 45, 76
S. E. 314, upholding statute creating high school; dissenting opinion in
United States v. Delaware & H. Co., 164 Fed. 251, majority holding void
"cpifimodities clause'' Interstate Commerce Act; dissenting opinion in
McLendon v. State, 179 Ala. 66, Ann. Gas. 19150, 691, 60 South. 396,
majority upholding proviso in revenue law which exempted ex-Confederate
soldiers from payment of occupation tax; dissenting opinion in In re
Sherrell, 188 N. Y. 232, 81 N. E. 140, majority holding act apportioning
State into senatorial districts to I5e void; dissenting opinion in Allen v.
Reed, 10. Okl. 160, 63 Pac. 878, majority holding void act of 1893, relating
to change of county seats; United States v. Guiteau, 1 Mackey D. C. 579,
and Park v. Candler, 114 Ga. 471, 40 S. E. 525, both arguendo.
In Sweet v. Rechel, 159 U. S. 393, 40 L. Ed. 194, 16^ Sup. Ct. 46, court
said: "It is a well-settled rule of constitutional exposition that if a statute
may or may not be, according to circumstances, within the limit of legis-
lative authority, the existence of circumstances necessary to support it
must be presumed." In United States v. Boyer, 85 Fed. 430, it is said:
"The judiciary should presume, until the contrary is clearly shown, that
there has been no transgression of power by Congress." In In re Smith,
2 Woods, 463, Fed. Cas. 12,996, court said: "The court ought not to pro-
nounce a law unconstitutional, unless its incompatibility be then decided
and inevitable." • In United States v. Fairchild, 1 Abb. 76, Fed. Cas.
15,067, court said: "To warrant the courts in setting aside this law as
unconstitutional, the case must be so clear that no reasonable doubt can
be said to exist." But see Sadler v. Langham, 34 Ala. 321. In Alabama
& Florida R. R. Co. v. Burkett, 42 Ala. 87, and People v. Wilson, 15 111.
392, it is held that limitation of power of the State l^slature should be
strictly construed. In Osborne v. Mayor etc., 44 Ala. 499, it is held that
"a State law, and for like reason the law of a State municipal corporation,
will not be declared unconstitutional unless it is clearly not in conformity
to that instrument." In Thome v. San Francisco, 4 Cal. 158, Heydenfeldt,
J., said: "It is indisputable now that a law will not be declared invalid,
unless there is a clear and strong conviction of its repugnancy to the Con-
stitution." In People v. Scott, 9 Colo. 432, 12 Pac. 613, it is said that prin-
ciples announced in cited case are "only suggestions to be co|(sidered by
thq judiciary." In Eames v. Savage, 77 Me. 216, 52 Am. Bep. 762, it is
declared that the presumption is in favor of the validity of a statute, "and
it is a presumption of great strength — all the judges and writers agree on
that." In Commissioners on Inland Fisheriies v. Holyoke Water Power
Co., 104 Mass. 449, 6 Am. Bep. 250, it is said : "No act of the legislature
is to be declared invalid unless its repugnancy to the Constitution is mani-
fest and unavoidable." In Ba»k v. Darlington, 50 S. C. 363, 27 S. E. 858,
it is held that statute must be construed as qualiRed by the Constitution
upon ,the well-settled principle that a statute will never be construed as
unconstitutional when it can in any way possible^e reconciled with the Con-
stitution. In Sears v. Cottrell, 6 Mich. 259, court said: "The power of
declaring laws unconstitutional should be exercised with extreme caution,
and never where serious doubt exists as to the. conflict; and see Mitchell.
401 FLETCHER v. PECK. 6 Cr. 87-148
T. Blodgetf, 13 Mich. 161. In Whaley v. Whaley, 51 Mo. 86, .court said:
"When the Constitution restrains the exercise of legislative power, the re-
straint itself, and the terms upon which it is imposed,^ should be so con-
strued as to sustain ithe power as exercised unless such construction is
clearly unconscionable." In George* v. Concord, 45 N. H. 437, it is said :
^ 'Courts will never decree a statute void, unless the nullity and invalidity
of the act are placed in their judgment beyond a reasonable doUbt." In
Williams v. Bank of Michigan, 7 Wend. 556, it is held that one State will
not inquire into the constitutionality of a law of another State or terri-
tory. In Wooley v. Watkins, 2 Idaho, 5^, 22 Pac. 105, it is said: "More
than three^uarters of a century ago, that great lawyer and eminent jurist,
Chief '.Justice Marshall, announced a rule of interpretation in cases involv-
ing alleged conflicts between statutes and constitutions, which has ever
since commanded the respect of courts of justice."
The principles of the cited case have been held to apply to the construc-
tion of the Constitution as to the Governor's power of appointment (Nichol-
son V. Thompson, 5 Rob. (La.) 391, 404) ; and to the sustaining of the
validity of a constitutional amendment (Koehler v. Hill, 60 Iowa, 588, 14
N. W. 761). They have been cited and applied in support of the constitu-
tionality of a State insolvency law (Ogden v. Saunders, 12 Wheat. 294,
6 L Ed. 684) ; of a State law taxing alien passengers upon their arrival in
port (Passenger Cases, 7 How.. 496, 12 L. Ed. 791); of the legal tender
acts of Congress (Legal Tender Cases, 12 Wall. 531, 20 L. Ed. 306; Lick
V. Faulkner, 25 Cal. 420 ; Metropolitan Bank v. Van Dyke, 27 N. Y. 460 ;
Shollenberger v. Brinton, 52 Pa. St. 58, 89) ; of an act establishing a State
reform school, and authorizing municipal corporation to devote money to
secure its location (Livingston Co. v. Darlington, 101 U. S. 410, 25 L. Ed.
1017); of the civil rights act of Congress (Civil Rights Cases, 109 U. S.
27, 27 L. Ed. 845, dissenting opinion ; United States v. Rhodes, 1 Abb. 52,
Fed. Cas. 16,151) ; of a law suppressing the manufacture of oleomargarine
(Powell V. Pennsylvania, 127 U. S. 685, 82 L. Ed. 256, 8 Sup. Ct. 996) ; of
the act of Congress compelling testimony before the interstate commerce
commission (Interstate Commerce Commission v. Brimson, 154 U. S. 478,
38 L. Ed. 1058, 14 Sup. Ct. 1133; Brown v.' Walker, 161 U. S. 596, 40 L. Ed.
821, 16 Sup. Ct. 646, 70 Fed. 48) ; of a law authorizing a city to take
lands for public use, under the police power, prior to making compensation
(Sweet V. Rechel, 159 U. S. 393, 40 L. Ed. 194, 16 Sup. Ct. 46); of acts
authorizing municipal corporations and counties to subscribe to railroad
stock (Smith v. Fond du Lac, 8 Fed. 295, 10 Biss. 427; Ex parte Selma
etc. R. R. Co., 45 Ala. 728, 733, 6 Am. Rep. 727, 732; Cotton v. County
Commrs., 6 Fla. 614; C. D. & V. R. R. Co. v. Smith, 62 111. 272, 14 Am.
Rep. 101; Lafayette etc. R. R. Co. v. Geiger, 34 Ind. 199; Stewart v. Super-
visors, 30 Iowa, 15, 1 Am. Rep. 242; Cincinnati etc. R. R. Co. v. Commis-
sioners, 1 Ohio St. 83, 20 Ohio App. 5 ; Sharpless v. Mayor, 21 Pa. St. 164,
59 Am* Dec. 769) ; of a State law imposing a tax upon sewing-machine
companies (Singer Mfg. Co. v. Wright, 33 Fed. 128); of . the act of Con-
gress against the intimidation of voters (United States v. Goldman, 3
Woods, 194, Fed. Cas. 15,225) ; of the bankrupt law of 1873 (In re Smith,
I— 2ft
OCr. 87-148 NOTES ON U. S. REPORTS. 402
2 Woods, 463, Fed. Cas. 12,996) ; of the pension act of 1864 (United States
V. Fairchild, 1 Abb. 76, Fed. Caa. 15,067) ; of the law authorizing condem-
nation of lands for railroad (Baltimore etc. R. R. Co. v. Van Ness, 4 Cr.
C. C. 600, Fed. Cas. 830) ; of a postal law (United S^tes v. Hall, 26 Fed.
Cas. 77) ; of naval court-martial law (United States V. Mackenzie, 30 Fed.
Cas. 1162; Bloodgood v. M. & H. R. R. Co., 18 Wend. 50, 81 Am. Dec. 347) ;
of laws establishing State banks (Owen v. Branch Bank, 3 Ala. 262; People
V. Marshall, 1 Qilm. (111.) 689) ; of a law allowing the nomination of a
judge by consent of parties, when, the judge is disqualified (Alabama &
Florida R. R. Co. v. Burkell, 42 'Ala. 87) ; of a State act enforcing the
Fourteenth Amendment to the Federal Constitution (McElvain v. Mndd,
44 Ala. 78) ; of a law changing the charter of a municipal corporation
(Mayor etc. v. Dargan, 45 Ala. 318) ; of various State acts relating to
judges and counties (State v. Sorrello', 15 Ark. 679 ; Edwards v. Dupny, 21
La. Ann. 695 ; Harris v. Vanderveer, 21 N. J. Eq. 440 ; Skinner v. Collector,
42 N. J. L. 410; Payne v. Mahon, 44 N. J. L. 215; Morris v. People, 3
Denio, 394 ; Grant Co. v. Sels, 5 Or. 245 ; Tribou v. Strowbridge, 7 Or. 159 ;
Cresap v. Gray, 10 Or. 349; Henderson v. Beaton, 52 Tex. 38) ; of a retro-
spective redemption act (Thome v. San Francisco, 4 Cal. 158) ; affirming
constitutionality of an act imposing test oaths of allegiance (Cohen v.
Wright, 22 Cal. 308; contra, Murphy. v. Glover, 41 Mo. 373, 382); of an
act allowing soldiers to vote (dissenting opinion in Bourland v. Hildreth,
26 Cal. 228; contra, Twitchell v. Blodgett, 13 Mich. 151) ; of a specific con-
tract act (Carpentier v. Atherton, 25 Cal. 569, 572; of a flowage act
(Olmstead v. Camp, 33 Conn. 551, 89 Am. Dec. 228); of a local option
liquor law (Territory v. O'Connor, 5 Dak. 413, 41 N. W. 752; People v.
Collins, 3 Mich. 404; contra. Maize v. State, 4 Ind. 344); of an act dis-
franchising a voter for nonpayment of taxes (Frieszleben v. Shallcross, 9
Hoi^st. 108, 111, 19 Atl. 595, 597) ; of a municipal license tax upon boats
and vessels (Harmon v. Chicago, 140 111. 399, 29 N. E. 740) ; of an act
changing the inchoate right of dower (Noel v. Ewing, 9 Ind. 43) ; of acts
authorizing municipal appropriations for bounties to volunteers (Coffman
V. Keightley, 24 Ind. 514; Speer v. School Directors, 50 Pa. St. 158) ; of an
act authorizing the removal of an officer for intoxication (McComas v.
Krug, SI Ind. 332, 42 Am. Rep. 139); of an act for the suppression of
intemperance (Santo v. State, 2 Iowa, 208, 63 Am. Dec. 506); of an act
requiring judicial advertisements in French as well as English (Davidson
V. Houston, 35 La. Ann. 493) ; of personal liberty laws respecting fugitive
slaves (Opinions of Judges Appleton and Kent, 46 Me. 586) ; of acts re-
lating to canals (Spring v. Russell, 7 Me. 291; Newell v. People, 7 N. Y.
322) ; of an act amending a corporate charter under reserved power (Com-
missioners on Inland Fisheries v. Holyoke Water Co., 104 Mass. 449, 6 Am.
Rep. 250; Ames v. Lake Superior etc. R. R. Co., 21 Minn. 282) ; of an act
granting a divorce (State v. Fry, 4 Mo. 177); of laws relating to taxes
and revenue (State v. Cumberland & Pennsylvania R. R. Co., 40 Md. 54;
Sears v. Cottrell, 5 Mich. 259; Whaley v. Whaley, 51 Mo. 36; State v.
Camp Sing, 18 Mont. 138, 56 Am. St. Rep. 558, 44 Pac. 517 ; Ash v. Park-
inson, 5 Nev. 35) ; of an act equalizing loans to depositors in insolvent
403 FLETCHER v. PECK 6 Cr. 87-148
savings banks (Simpson v. Savings Bank, 56 N. H. 469, 22 Am. Bep. 493) ;
of the jndieiary act of Congress giving original but not exclusive juris-
diction of controversies when another State is a party (Delafield v. State,
26 Wend. 217) ; of a retrospective stay law (dissenting opinion in Jacobs
T. Small wood, 63 N. C. 126) ; of the conscription act of Congress of 1863
(Kneedler v. Lane, 46 Pa. St. 310) ; of acts taxing litigation (Harrison v.
Willis, 7 Heisk. 44, 19 Am. Bep. 6()9), and collateral inheritance (Eyre v.
Jacob, 14 Gratt. 426, 78 Am. Dec. 869); and the occupation of attorney
(Lan^iile v. State, 4 Tex. App. 322) ; of an act to prevent opium smoking
(Ah Lim v. Territory, 1 Wash. 159, 24 Pac. 588) ; and of various 9ther
State acts (Demott v. Swaim, 5 Stew. & P. 308 ; Citizens' M. I. Co. v. Lott,
45 Mh. 196; Wilder v. Lumpkin, 4 Ga. 212, 215; State v. County Judge,
2 loi^a, 283 ; State v. Taylor, 34 La. Ann. 981 ; Fisher v. Auditor, 39 La.
Ann. 450, 1 South. 885 ; Kennebec Purchase v. Laboree, 2 Me. 297, 11 Am.
Dec 97; Eames v. Savage, 77 Me. 216, 52 Am. Bep. 752; Mayor v. State,
15 Md.. 389; Curryer v. Merrill, 25 Minn. 4, 88 Am. Bep. 452; Evans v.
Job, 8 Nev. 337 ; State v. Narragansett, 16 R. I. 440, 16 Atl. 906 ; Railroad
Co. v. Commissioners, 36 Tex. 407; Brimm v. Jones, 11 Utah, 205, 39 Pac.
825; Danville v. Pace, 25 Gratt. 9, 18 Am. Bep. 668; Roberts v. Cooke, 28
Gratt. 208; Bridges v, Shallcross, 6 W. Va. 568; Newcomb v. Smith, 2 Pinn.
139).
The following cases, while citing and approving the principles of the
principal case as applied to cases where the unconstitutionality of an act
is a matter of doubt, also affirm £iud apply the doctrine of that' case in
re^rard of the duty of the court to hold an act unconstitutional in a clear
ease, and have held various statutes unconstitutional : Illinois Central R. R.
Co. V. Stone, 20 Fed. 471 ; Sadler v. Langham, 34 Ala. 321 ; Eason v. State,
11 Ark. 486; Patterson v. Temple, 27 Ark. 206; People v. Scott, 9 Colo.
432, 12 Pac. 613 ; Mun v. Georgia, 1 Ga. 246 ; Bank of St. Mary's v. State,
12 Ga. 498 ; Maize v. State, 4 Ind. 344 ; State v. Springfield, 6 Ind. 87 ; State
V. Fa^an, 22 La. Ann. 557; dissenting opinion in Gross v. Rice, 71 Me.
258; Murphy v. Glover, 41 Mo. 382; Newell v. People, 7 N. Y. 109; Stan-
mire v. Taylor, 3 Jones, 211 ; McCullough v. Brown, 41 S. C. 2.34, 19 S. E.
467; Atkins v. Randolph, 31 Vt. 242.
Improper motives' of legislature In passing bill cannot be Inquired Into In
suit between private Individuals.
Cited with approval in following cases : Dodge v. Woolsey, 18 How. 371,
15 L. Ed. 418; United States v. Des Moines etc. Co., 142 U. S. 545, 35
L. Ed. 1109, 12 Sup. Ct. 318; United States v. Old Settlers, 148 U. S. 466,
87 L. Ed. 523, 13 Sup. Ct. 666 ; Angle v. Chicago etc. R. R. Co., 151 U. S.
17, 38 L. Ed. 64, 14 Sup. Ct. 246 ; Farmers' L. & T. Co. v. Chicago etc. Ry.
Co., 39 Fed. 154, 155, 151 U. S. 43, 45; Ex parte Newman, 9 Cal. 515;
First Society v. Piatt, 12 Conn. 192; Bartlett v. Kennedy, 15 Conn. 334;
State V. Blake, 69 Conn. 75, 36 Atl. 1022 ; Macon etc. R. Co. v. Little, 45
Ga, 389 ; Wright v. Def rees, 8 Ind. 303 ; Miners' Bank v. United States, 1
G. Greene, 565; Corbin v. Marsh, 2 Duv. 198; Elraondorff v. Carmichael,
3 Litt. 482, 14 Am. Dec. 95 ; Jones v. Chiles, 4 J. J. Marsh, 613 ; Villavaso
V. Barthet, 39 La. Ann. 258, 1 South. 607; State v. Fagan, 22 La. Ann.
6 Cr. 87-148 NOTES ON U. S. REPORTS. 404
548 ; l^ederick v. Gill, 38 Mo. 527 ; Tennant's Case, 3 Neb. 429 ; Gibson ▼.
Mason, 5 Nev. 299; Jersey City etc. R. R. Co. v. Jersey City etc. R. R.
Co., 20 N. J. Eq. 76; People v. Devlin, 33 N. Y. 279, 86 Am. Dec. 888; State
V. Cincinnati G. L. Co., 18 Ohio St. 300; Jones v. Jones, 12 Pa. St. 357,
51 Am. Dec. 615; Sharpless y. Mayor, 21 Pa. St. 163, 59 Am. Dec. 767;
Helsey v. Gaines, 2 Lea, 356 ; Crutehfield v. Car Works, 8 Baxt. 245 ; Lynn
V. Polk, 8 Lea, 218, 233, 298 ; State v. Cunningham, 81 Wis. 509, 51 N. W.
738.
It has also been approved in the following cases: American Banana Co.
V. United Fruit Co., 213 U. S. 358, 53 L. Ed. 833, 29 Sup. Ct. 511, holding
act o£ inducing foreign government to seize plantation not tortious; New
Orleans. V. Warner, 175 U. S. 145, 44 L. Ed. 108, 20 Sup. Ct. 54, refusing
to review amount that city of New Orleans paid for certain property;
Lone Wolf v. Hitchcock, 19 App. D. C. 327, refusMg to declare void act of
Congress ratifying agreement with Indians on ground that agreement was
procured by fraud ; Murphy v. Chicago etc. Ry. Co., 247 111. 619, 93 N. E.
383, refusing to consider motives of city council in passing ordinance;
Ansley v. Ainsworth, 4 Ind. Ter. 327, 69 S. W. 891, refusing to consider
objection that Congress procured agreement with Indian tribes by duress
and coercion ; State v. Terre Haute etc. R. Co., 166 Ind. 584, 77 N. E. 1078,
refusing to hold railroad liable for attempting by bribery to prevent pas-
sage of statute enabling State to recover certain jmrtion of net profits;
dissenting opinion in Ekem v. McGovem, 154 Wis. 313, 46 L. B. A. (N. S.)
796, 142 N. W. 644, majority protecting commissioner of insurance from
summary removal by (Governor.
In Dodge v. Woolsey, 18 How. 371, 15 L. Ed. 418, Mr. Justice Campbell
said: "The courts cannot look to the corruption, the blindness, nor the
mischievous effects of State legislations to determine its binding opera-
tion." In United States v. Des Moines etc. R. R. Co., 142 U. S.«545, 85
L. Ed. 1109, 12 Sup. Ct. 318, court said: "Although it has sometimes been
argued at the bar that the courts ought to inquire into the motives of the
legislajkure when fraud and corruption are alleged, and annul their action
if the allegations were established, the argument has in no case been
acceded to by the judiciary, and they have never allowed the inquiry to
be entered into." In Angle v. Chicago etc. R. R. Co., 151 U. S. 17, 18, 38
L. Ed. 64, 14 Sup. Ct. 246, court said: "The rule upon which this decision,
rests has been followed in many cases and has become a settled rule of
jurisprudence." In United States v. Old Settlers, 148 U. S. 466, 87 L. Ed.
523, 13 Sup. Ct. 666, the Supreme Court approved of action of the Court
of Claims in declining to go behind treaty of 1846, upon the ground that
it was not within province of court, either of law or equity, to determine
that treaty or act of Congress had been procured by duress or fraud and
declare it inoperative for that reason. In First Society v. Piatt, 12 Conn.
192, it was held that a resolution of the general assembly could not be dis-
regarded as constructively fraudulent for want of notice to an ecclesi-
astical society affected by it. In State v. Blake, 69 Conn. 75, 36 Atl. 1022,
it is held that it cannot be shown that the legislature was misled or acted
under a mistake in its action. In Elmondorff v. CarmicKael, 3 Litt. 482,
405 FLETCHER v. PECK. 6 Cr. 87-148
14 Am. Dec. 95, court said: ''No instance, it is believed, can be found of
either estoppel being allowed to operate or fraud to be charged against
the crown of England, or the commonwealth of America." In Jones v.
Chiles, 4 J. J. Marsh. 613, court said: "Fraud cannot be imputed to the
government, nor is there in her grants any warranty, express or implied."
In Corbin v. Marsh, 2 Dnv. 198, court said : "This court must look only to
the power, and never presume an unconstitutional motive for its exercise."
In Jdnes v. Jones, 12 Pa. St. 357, 51 Am. Dec. 615, it was held that evi-
dence ^s inadmissible to show that a divorce granted by tne legisFature
was obtained by fraud or falsehood, or that one of the members of the
le^pslature misrepresented the facts. In Lynn v. Polk, 8 Lea, 218, 233,
298, it was held that bribery of the legislature could not be shown to
invalidate an act; Tennant's Case, 3 Neb. 429, held that thi^ doctrine was
also applicable to the motive of the executive in issuing a proclamation
to convene the legislature. In Bartlett v. Kingsley, 15 Conn. 334; Villa-
vaso.v. Barthet, 39 La. Ann. 268, 1 South. 607, Crutchfield v. Car Works,
8 Baxt. 245, and Jersey City etc. R. R. Co. v. Jersey City etc. R. R. Co.,
20 N. J. £q. 76, it was held that the same principles which forbid an
investigation into the motives of the State legislature forbid spch investi-
gation into the motives of a municipal legislature in the passage of a
muncipal ordinance; and that such ordinance could not be avoided for
illegal intention, or for fraud in its procuremeht; but see contra, State v.
Cincinnati G. L. Co., 18 Ohio St. 300. >y .
Motives of legislatures or members thereof will not be inquired into.
Note, 51 Am. Dec. 628.
Judicial inquiry into wisdom of policy of statute, or motives prompt-
ing its enactB}|pt. Note, 1 Ann. Oas. 570. \
Bona fide purcliiiiia for value, witliont notice of fraud, as betweep prior
grantor and grantee, are protected from rescission on account of it.
Approved in Fidelity Mutual Life Ins. Co. v. Clark, 203 XL S. 73, 51
L. Ed. 95, 27 Sup. Ct. 19, holding assignees of part of judgment fraudu-
lently obtained not affected by notice; Young v. Wiley, 183 Ind. 458, 107
N. E. 281, judgment quieting title cannot be collaterally attacked for fraud
where property has passed to bona fide purchaser; Vanzant v. Bodcaw
Lamber Co., 128 La. 931, 55 South. 580, grantor in deed cannot plead
a^inst bona fide purchaser that he signed it in error through failure to
read it ; Bell v. La Fosse, 126 La. 531, 52 South. 688, and Chaffe v. Minden
Lumber. Co., 118 La. 757, 43 South. 399, both holding that fraud of admin-
istrator in buying property of succession through third person did not
affect bona fide purchaser; State v. Hackley, 124 La. 861, 50 South. 775,
State cannot recover land from bona fide purchaser for fraud of patentee;
Vital V. Andrus, 121 La. 222, 46 South. 217, holding bona fide purchaser not
affected by fraud in tax sale ; Cochran v. Cobb, 43 Ark. 184, applying rule to
a purchase of State swamp-lands in levee bounds, and holding that , where
contract was executed by conveyance and the lands had passed into hands
of innocent third parties for value, State was estopped by its own
grant to resort to land; Bleecker v. Bond, 3 Wash. C. C. 542, Fed. Cas.
6 Cr. 87-148 NOTES ON U. S. REPORTS. 406
1534; bona fide purchasers from State of Georgia protected; Johnston ▼.
Smith, 21 Tex. 729, holding that in case of grant by government, parol
evidence of fraud in obtaining grant not permitted to impeach grant in
hands of bV>na fide purchasers after great lapse of time. In Smith ▼.
Ewing, 11 Sawy. 64, 23 Fed. 747, Quick v. Milligan, 108 Ind. 423, 68 Am.
Rep. 52, 9 N. E. 395, Broussard v. Broussard, 45 La. Ann. 1089, 13 South.
701, Blanchard v. Castillo, 19 La. 364, Hubbard v. Greeley, 84 Me. 347,
and Somers v. Brewer, 2 Pick. 201, 13 Am. Dec. 417, doctrine was applied
to the protection of a bona fide purchaser from a defrauded grantor; Myers
v. Sanders, 7 Dana, 519, applying rule to protection of bona fide purchaser
under sheriff's deed, made with fraudulent collusion; Jackson v. Henry, 10
Johns. 197, 6 Am. Dec. SSI, applying rule to protection of bona fide pur-
chaser under sale of mortgaged property against usury in mortgage 'debt ;
Paddock v. Fish. 10 Fed. 128, Wood v. Mann, 1 Sumn. 510, Fed. Gas. 17,951,
Thames v. Rembert, 63 Ala. 571, Paige v. O'Neal, 12 Cal. 497, George ▼.
Kimball, 24 Pick. 239, Thomas v. Mead, 8 Mart. (N. S.) 343, 19 Am. Dec
187, Water v. Riggin, 19 Md. 554, Wineland v. Coonce, 5 Mo. 300, 82 Anu
Dec. 323, Gordon v. Haywood, 2 N. H. 403, Savings Bank v. Mead, 63
N. H. 436, 82 Am. Dec.^ 248, Anderson v. Roberts, 18 Johns. 531, 9 Anu
Dec. 242, Mateer v. Hissim, 3 Penr. & W. 165, Sawtelle v. Weymouth, 14
Wash. 27, 43 Pac. 1103, and Simms v. Morse, 2 Fed. 329, 4 Hughes, 583^
all applying rule to protection of bona fide purcHasers of property con-
veyed in fraud of the creditors of the grantor; Danbury v. Robinson, 14
N. J. Eq. 219, rights of such bona fide purchaser not afitected or impaired
by fact that judgments were reversed against the fraudulent grantor prior
to conveyance; Agricultural Bank v. Dorsey, Freem. Ch. 343, protection
of bona fide purchasers against creditors of grantor does not extend to pur-
chase or a mortgage for pre-existing debt; Miles v. Oden, 8 Mart (N. S.)
227, 19 Am. Dec. 188, protection of bona fide purchasw from frand of
vendor applies to protection of bona fide purchaser of note giveD to 'vendor
upon fraudulent transfer of his property; Henninger v. Heald, 52 N. J.
Eq. 439, 29 Atl. 194, doctrine of protection of bona fide purchaser without
notice of prior equity, arising out of fraud, extends to protection of grantee
of such grants, though he had notice of fraud if he was not a participant
therein; Gilman v. Hamilton, 16 111. 232, doctrine applies to protection of
bona fide purchaser at judicial sale under voidable decree of sale; Barrow
V. Bispham, 11 N. J. L. 116, doctrine does not extend to assignment of
chose in action, purchaser of which, however bona fide, must abide by case
of one from whom he bought; Chew v. Calvit, Walk. (Miss.) 61, arguendo.
A party should not be judge tn his own cause, and if legislature claim
this right, it must be governed by equitable and legal roles.
Cited in Clyma v. Kennedy, 64 Conn. 318, 42 Am. St. Rep. 196, 29 Atl.
539, holding justice of peace not qualified to decide criminal action for
newspaper libel against himself upon complaint of grand juror.
Disqualification of sheriff to act as justice of the peace. Note, 16
£. K 0. 96.
407 FLETCHER v. PECK. 6 Cr. 87-148
One legislature may repeal any act wUch it was . competent for former
legislatare to pass, and one legislature cannot abridge powers of its successors.
Cited in State v. Dews, Charlt. (Ga.) 412, 419, following nile; Smith v.
Westcott, 17 R. I. 367, 22 Atl. 281, holding that legislature may transfer the
custody of funds held upon a public trust from one set of commissioners
to another ; Blair v. Marye, 80 Va. 491, holding that power of legislature
over public officers generally does not extend to constitutional officers;
Gilleland v. Schuyler, 9 Kan. 580, holding ttat the right to contest the
election of a public officer given by one legislature may be taken away
by another legislature, and that the appeal of the law authorizing such
rontest could abate an action already commenced ; Bank v. Bond, 1 Ohio St.
640, and Sandusky City Bank v. Wilbur, 7 Ohio St. 497, holding that an.
aet incorporating State bank and other banking companies was a public
and general law, which might be changed upon subject of taxation ; Provi-
dence Bank v. Billings, 4 Pet. 563, 7 L. Ed. 956, Seymour v. Hartford, 21
Conn. 486, Grand Lodge of Masons v. City, 44 La. Ann. 665, 11 South. 151,
Washington University v. Rouse, 42 Mo. 317, Plankroad Co. v. Husted,
3 Ohio St. 683, and Iron City Bank v. Pittsburg, 37 Pa. St. 343, holding
that the State has a general power of taxation over corporations, when
exemption from taxation does not form a valid and binding part of the
eharter; dissenting opinion in Dodge v. Woolsey, 18 How. 378, 15 L. Ed.
421, insists upon sovereign power of legislature^ over the subject of taxa-
tion; Appeal Tax Court v. Patterson, 50 Md. 372, holding that general
power of taxation by a State is not affected by the^exemption from taxation
ander the laws of another State of corporate stocks held by citizens of
taxing State; Dartmouth College v. Woodward, 1 N. H. 132, 135, holding
that the charter of Dartmouth College was a subject of general legislation
which might be changed (overruled in 4 Wheat. 518, 4 L. Edi 629) ; State
T. Southern Pac. Co., 24 ^Tex. 125, holding that charter of a railroad
corporation does not prevent the exercise of the general power of the
l^slature, and that it may authorize a suit in the name of the people
to forfeit charter for violation of law ; Railroad Co. v. Transportation Co.,
25 W. Va. 353, holding that irrevocable grants and franchises conferred
upon a railroad company are nevertheless subject to the general, power
of the legislature to fix charges for transportation ; Pennsylvania College
Cases, 13 Wall. 213, 20 L. Ed. 558, Miller v. New York, .15 Wall. 489,' 21
L Ed. 101, Leep v. Railroad Co., 58 Ark. 429, 41 Am. St. Rep. 124, 25 S. W.
81, State V. Northern Cent. Ry. Co., 44 Md. 165, Commissioners on Inland
Fisheries v. Holyoke Water Co., 104 Mass. 448, 6 Am. Rep. 249, Proprietors
of Side Booms v. Haskell, T Me. 477, In re Matter of Bank, 21 N. Y. 14,
M'Laren v. Pennington and Others, 1 Paige, 108, Iron City Bank v. Pitts-
buig, 37 Pa. St. 343, and State v. Brown etc. Mfg. Co., 18 R. I. 24, 25 Atl.
249, holding that general power of legislature over corporations continues
to exist when a power of amendment or repeal has been reserved from
its charter; Ex parte Mayer, 27 Tex. 720, holding that legislature may
repeal acts which relate to public policy, and that conscription law! allow-
ing substitutes for drafted men could be repealed, and one who had sent a
substitute be made liable to military duty.
6 Cr. 87-148 NOTES ON U. S. REPORTS. 408
Acts done under one law cannot be undone by a sncceeding legislature.
Cited in State v. County Court, 19 Ark. 373, 374, State v. Southern Bank,
23 La. Ann. 272, United States v. Minnesota etc. R. R. Co., 1 Minn. 133,
People V. Collins, 3 Mich. 395, People v. O'Brien, 111 N. Y. 48, 7 Am. St.
Rep. 702, 18 N. E. 702, Eakin v. Raub, 12 Serg. & R. 366, 372, and Bank v.
M'Veigh, 20 Gratt. 467, all following rule; Western Union Telegraph Co.
V. Julian, 169 Fed. 175, foreign corporation cannot be deprived of fran-
chise to operate telegraph lines because it maintains suits in Federal
courts; Town of New Decatur v. American Tfel. & Tel. Co., 176 Ala. 506,
507, 517, 629, Ann. Oa^. 1915A, 876, 58 South. 617, 621, 624, holding void
ordinances which repealed telephone franchises and ordered company to
remove poles from streets.
Bights vested under a law, wblch is in its nature a contract, cannot be
divested by legislature.
Approved in Condon v. City of Eureka Springs, 135 Fed. 568, repeal of
act of Arkansas 1875, authorizing cities to call in outstanding warrants
and reissue them, was effective with respect to outstanding warrants;
Finders v. Bodle, 58 Neb. 61, 78 N. W. 481, holding curative legislation
does not affect rights of bona fide purchasers acquired prior to its enact-
ment; Wasserman v. Metzger, 106 Va. 766, 54 S. E. 899, determining whether
purchaser was bona fide i^rchaser entitled to priority; dissenting opinion
in Evans-Snider-Buel Co. v. M'Fadden, 106 Fed. 304, majority upholding
29 Stat. 510, chapter 136, validating Indian Territory mortgages; State
Branch Bank v. Knoop, 16 How. 284, 14 L. Ed. 983, and State v. County
Court, 19 Ark. 373, 374,- which hold that a law exempting lands from
taxation under contract with the legislature cannot be repealed; Poin-
dexter v. Greenhow, 114 U. S. 297, 29 L. Ed. 195, 5 Sup. Ct. 918, which
holds that act making coupons receivable for taxes conferred a contract
right upon the holders of coupons, which could not be impaired by the
l^slature; Filer v. Fuller, 44 Ark. 282, holding that an act repealing an
overdue tax law cannot deprive attorneys of their vested right to com-
pensation in pending suits; Boston etc. R. R. Co. v. Salem etc. R. R. Co.,
2 Gray, 31, 34, which holds that a railroad charter made exclusive by the
act granting it is a contract of the commonwealth protected as a grant of
a vested right; People v. O'Brien, 111 N. Y. 48, 7 Am. St. Rep. 702, 721,
18 N. E. 702, which holds that vested rights of a corporation in its prop-
erty cannot be divested, under reserved i)ower to repeal its charter;
Howard v. Jones, 50 Ala. 69, Watson v. Rose, 51 Ala. 300, Micou v. Tallas-
see B. Co., 47 Ala. 656, Moore v. State, 43 N. J. L. 217, 89 Am. Rep. 570,
and United States v. Johnson, 5 Dill. 212, Fed. Cas. 15,489, holding that
law in force at the time of making of a contract and in any manner affect-
ing \i enters into and becomes part of contract, and cannot be repealed or
altered so as to affect obligation of contract or to impair rights vested
under those laws; Homestead Cases, 22 Gratt. 287, 288, 12 Am. Bep. 614,
515, holding that law exempting certain property from execution when
debt incurred could not be changed so as to increase exemption against the
creditor; Commissioners* Court v. Rather, 48 Ala. 447, English v. Oliver,
409 FLETCHER v. PECK. 6 Cr. 87-148
28 Ark. 334, County Commrs. v. King, 13 Fla. 474, State v. Walsh, 31 Neb.
476, 48 N. W. 266, Munday v. Rahway, 43 N. J. L. 340, and United States
V. Qnincy, 4 Wall. 549, 18 L. Ed. 408, holding that holders of bonds issued
under a statute have a vested right in the statutory remedy of levying a
tax to pay the bonds, of which they cannot be deprived by repeal or change
of statute ; Graham v. Chicago etc. R. R. Co., 53 Wis. 484, 10 N. W. 613,
holding that lawfulness of act done depends upon laws in force at the
time, and vested right of action for unlawful acts cannot be ti^ken away
by repeal of statute making such acts unlawful; Enfield Toll Bridge v.
Hartford etc. R. R. Co., 17 Conn. 61, 42 Am. Dec. 723, holding not violation
of Constitution or of vested rights to take lands held either under executed
or executory contract under i)ower of eminent domain upon making com-
pensation therefor.
In a number of citing cases it iB held that* vested rights are protected
against any power of the legislature to divest them. Thus it is held that
the property of an alien cannot be divested by- law without his consent,
otherwise than by the power of eminent domain (Bonaparte v. Camden
etc. R. R. Co., 1 Bald. 220, Fed. Cas. 1617) ; that legislature cannot divest
any citizen of a lawfully acquired right or title to property (Dockery v.
McDowell, 40 Ala. 482) ; that the property of a ward cannot be converted
into illegal Confederate money by authority of the legislature (Newman
V. Reed, 50 Ala. 303) ; that county bonds issaed under a law in aid of
harbor improvement could not be curtailed in amount by the legislature to
the injury of bondholders (Sla^hter v. Mobile County, 73 Ala. 138) ; that
the State cannot by a change of the Constitution cut oft or destroy rights
and remedies vested under valid contracts lawfully made under the former
Constitution (Jacoway v. Denton, 25 Ark. 643; Berry v. Bellows, 3Q Ark.
204). So also that rights vested in a fund provided for the payment of
bonds under an internal improvement act cannot be divested by a subse-
quent act devoting the fund to other purposes (Trustees etc. v. Bailey, 10
Fla. 130, 81 Am. Dec 199) ; that an act for the issuance of county bonds
proyiding for levy of a tax to pay them cannot be repealed or changed to
the detriment of the bondho^ers (County Conmirs. v. King, 13 Fla. 474) ;
that a remedial act cannot be allowed to operate retrospectively so as to
divest a right of action in a pending cause (Wilder v. Lumpkin, 4 Ga. 215,
220; Satterlee v. Matthewson, 16 Serg. & R. 185). But see 2 Pet. 380,
7 L. Ed. 458, contra. Again that a retrospective act cannot take away any
csdsting personal liability of an executor or administrator (Martindale v.
Moore, 3 Blackf. 277, 278); that rights of property vested under a con-
tract for State printii^, authorized by law, cannot be divested by repeal
of the law (State v. Barker, 4 Kan. 387, 96 Am. Dec. 179); that rights
vested under a ^tate grant cannot be divested by eminent domain for the
purpose of establishing a town (Jackson v. Winn, 4 Litt. (Ky.) 329) ; that
rights vested under a l^slative grant of a lottery privilege cannot be
divested by repeal of the law (Gregory v. Trustees, 2 Met. (Ky.) 598,
quoted from, but overruled in, Douglas v. Commonwealth, 168 U. S. 500,
42 L. Ed. 557, 18 Sup. Ct. 203) ; that the vested property rights of a city
are protected against divestiture by the legislative power (New Orleaps
6 Cr. 87-148 NOTES ON U. S. REPORTS. 410
etc. R. R. Co. V. New Orleans, 26 La. Ann. 521; Milwaukee v. Milwankeei
12 Wis. 102; In re Malone, 21 S. C. 449). It has been further held that
rights vested under a valid common-law rule of property cannot be divested
by a retrospective statute (Kennebec Purchase v. Laboree, 2 Me. 289, 11
Am. Dec. 90) ; that while the legislature may control the general plan of a
city laid out under authority of a law of Congress, rights vested in pur-
chasers, whose lots are bounded on a street or square, cannot be divested
(Cooper V. Alden, Harr. Ch. (Mich.) 85) ; that a vested right of defense
under the statute of limitations cannot be divested by a change or repeal
of the statute (Davis v. Minor, 1 How. (Miss.) 192, 28 Am. Dec. 380;
Newland v. Marsh, 19 111. 385; Eakin v. Raub, 12 Serg. & R. 366, 371) ;
that a right vested by lapse of the time within which an appeal might be
taken cannot be divested by a retrospective act allowing an appeal (Burch
V. Newburg, 10 N. Y. 391) ; that Congress cannot confiseate debts due from
one citizen to another (Clark v. Mitchell, 64 Mo. 575) ; that the legislature
cannot lawfully deprive a person of a legally vested right, but that the
decision of a law court that such vested right might be taken under the
powersof eminent domain, in establishing a ferry, was binding upon a
court of equity (Stark v. McGowan, 1 Nott & McC. 400) ; that an act
allowing parol evidence to identify lands which were previously inad-
missible under the statute of frauds could not have retrospective effect
upon a previous contract wMch was void under that statute (Lowe v. Harris,
112 N. C. 480, 481, 17 S. E.^540) ; that the legislature cannot validate void
deeds of married women (Robinson v. Barfield, 2 Murphy, 422) ; that a
State cannot make scrip a legal tender for the payment of a note (Knighton
v. Burns, 10 Or. 550) ; nor suspend execution upon judgments unless plain-
tiff should accept bank notes in payment (Townsend v. Townsend, Peck, 12,
14 Am. Dec. 732) ; that the vested rights of an owner of land held under
the State cannot be affected by an act allowing a trespasser for his im-
provements in an action of ejectment (Briscoe v. Evans, 2 Overt. 346) ;
that an act allowing appeal after the prescribed time, impaired the con-
tract arising from the judgment (Bates v. Kimball, 2 D. Chip. 89; Nelson
v. Allen, 1 Yerg. 379); that an act authorizing payment in .Confederate
currency cannot be made to apply to debts contracted before its passage
(Bank v. McVeigh, 20 Gratt. 466, 467) ; that a remedy cannot be taken
away or encumbered with burdensome restrictions without impairing the
obligation of the contract (American B. & L. Assn. v. Rainbolt, 48 Neb.
450, 67 N. W. 499) ; and that a legislative divorce impairs the marriage
contract and is void (State v. Fry, 4 Mo. 132).
On the other hand, the following cited cases hold that rights may be
affected or changed by retrospective legislation where the obligation of
contracts is not impaired thereby; in Satterlee v. Mstthewson, 2 Pet. 413,
7 L. Ed. 469, the reference of which to Fletcher v. Peck is repeated in the
cases of Charles River Bridge v. Warren Bridge, 11 Pet. 581, 9 L. Ed. 837,
and' Cochran v. Van Surlay, 20 Wend. 371, 373, 32 Am. Dec. 572, 574, it is
said that the case of Fletcher v. Peck nowhere intimates that a statute
which divests vested rights retrospectively is repugnant to the Constitu-
tion of the United States, provided it does not impair the obligation of
4U FLETCHER v. PECK 6 Cr. 87-148
contracts, and it is held that an act making a change in the relation of
landlord and tenant between Connecticut settlers and Pennsylvania claim-
ants might operate retrospectively on pending suits.* In Charles River
Bridge V. Warren River Bridge, 11 Pet. 681, 9 L. Ed, 837, it is held that
an act legalizing competition of the Warren Bridge with the Charles River
Bridge was a valid exercise of legislative power, and violated no right
gruaranteed to the latter by the State of Massachusetts. Contra, per
Stoiy, J., dissenting, pp. 617, 634, 645, 9 L. Ed. 861, 8^8, 86S. In United
SUtes ex rel. v. Stockslager, 129 U. S. 477, 32 L. Ed. 787, 9 Sup. Ct. 384,
it is held that an act of Congress for the relief of heirs did not give vested
rights in certificates to be issued thereunder, and that such act may be
snspcjnded by Congress before any certificates had been taken out. In
Buckner v. Street, 1 Dill. 2^1, Fed. Cas. 2098, and McElvain v. Mudd, 44
Ala. 76, 4 Am. Bep. 106, it is held that slave contracts were abolished and
made ill^;al by the constitutional amendment abolishing slavery.
In other citing cases it is held that the law-making power may pass
retrospective enactments, as follows: To confirm deeds of married women
which were defectively acknowledged (Watson v. Mercer, 8 Pet. 110,
8 L. Ed. 884) ; to direct the court to set aside the inquisition of a jury as
to damages for the condemnation of land, and to order a new inquisition
(Baltimore etc. R. R. Co. v. Nesbit, 10 How. 402, 13 L. Ed. 472) ; to impose
a collateral inheritance tax applying in the case of persons who died be-
fore the passage of the law (Carpenter v. Commonwealth, 17 How. 463,
15 L. Ed. 129) ; to require a retrospective test oath dissenting opinion ^in
£x parte Garland, 4 Wall. 390, 18 L. Ed. 374; dissenting opinion Green v.
Shnmway, 39 N. Y. 432 ; majority in each case being to contrary ; Ex parte
Hunter, 2 W. Va. .159; Ex parte Quarrier, 4 W. Va. 223) ; to divest rights
accrued under a mere gratuitous grant of a lottery franchise, by repeal of
the law granting the license, such rights being deemed to have accrued
subject to the police power of the State to revoke the license (Douglas v.
Commonwealth, 168 U. S. 500, 42 L. Ed. 657, 18 Sup. Ct. 203, overruling
Gregory v. Trustees,^ Met. (Ky.) 598); to repeal an act conferring a
military title, and settling an annuity (Dale v. Governor, 3 Stew. 395, dis-
senting, Id. 422) ; to affect the rights of heirs after descent cast (Holmes
V. Bank of Norfolk, 12 Ala. 417) ; to make Confederate money illegal by
ordinance of a convention (Lawson v. Miller, 44 Ala. 626, 4 Am. Bep. 150) ;
to tax insurance companies by percentage on premiums for a year com-
mencing before the passage of the act (Citizens' M. I. Co. v. Lott, 45 Ala.
196) ; to confirm municipal bonds (Bridgeport v. Housatonic R. R. Co., 15
Conn. 497) ; to repeal an act containing an executory promise without con-
sideration, before rights are acquired under it (Trustees of Bishop's Fund
Y. Rider, 13 Conn. 96; Allen v. Forrest, 8 W^ash. 703, 36 Pac. 972); to
repeal a bridge franchise granted without consideration, before it is put
into execution (Young v. Harrisor, 6 Ga. 155) ; to repeal a penal statute
giving a qui tam action to an informer, so as to abate an action pending
prior to judgment (Bank of St. Marys v. State, 12 Ga. 498); to validate
the previous action of a municipal corporation (Bass v. Mayor etc., 30 Ga.
851); to change a waterfront line previously established by law, in front
/
6 Cr. 87-148 NOTES ON U. S. REPORTS. 412
of a line of water Ic^ts (Floyd ▼. Blanding^ 54 Cal. 46) ; to change the rules
of evidence in action upon antecedent contracts, and dispense with proof
of execution of a note unless denied under oath (Temple v. Hayes, Morris
(Iowa), 12) ; to prohibit, by police power of the State, the use of land
granted for burial purposes (Lake View v.. Rose Hill Cemetery Co., dis-
senting opinion of Sheldon, J., 70 111. 203) ; to take away a right to com-
plete the contest of an election already begun (Gilleland v. Schuyler, 9
Kan. 580) ; to establish a drainage company to drain marsh lands, i£ not
infringing the rights and obligations of vendors and vendees (Petition of
New Orleans Drainage Co., 11 La. Ann. 348).
Other citing cases have found this principle no obstacle to affirming the
following laws: To limit the rate of parish taxation so as to affect the
salary of a parish attorney appointed by tne District Judge (State v.
Police Jury, 34 La. Ann. 45) ; to take away an exemption from taxation
forming no part of a charter grant (Grand Lodge of Masons v. City, 44
La. Ann. 665, 11 South. 151; Washington University v. Rouse, 42 Mo. 317;
Providence Bank v. Billings, 4 Pet. 663, 7 L. Ed. 956 ; Seymour v. Hartford,
21 Conn. 486; Plank Road v. Husted, 3 Ohio St. 583; Iron City Bank v.
Pittsburg, 37 Pa. St. 343) ; to regulate remedies between borrower and
lender upon usurious contract, and to require usury to be pleaded, and^
sum due to be paid with interest (Baugher v. Nelson, 9 Gill, 307, 52 Am.
Dec. 699) ; to provide mode of proceeding against banks for violating their
charter, and to authorize injunction to restrain collection of demands due
them (Commercial Bank ▼. State, 4 Smedes & M. 507) ; to remove dis-
qiialification of interested witnesses, as applied to causes of action existing^
prior to passage of act (Rich v. Flanders, 39 N. H. 313, 376) ; to authorize
sale of estate of infants for their maintenance and education (Cochran v.
Van Surlay, 20 Wend. 371, 82 Am. Dec. 572) ; to confirm validity of taxes
and take away right to recover them when paid without uathority of law,
and to take away right to recover costs in pending action prior to judge-
ment (Grim v. School District, 57 Pa. St. 435, 98 Am. Dec 238) ; to cure
defects in judicial proceedings, and validate sale of 'land therein (Lane v.
Nelson, 79 Pa. St. 410) ; to change a provision in municipal charter that
when street has been once improved it should not be again improved (Ladd
V. Portland, 32 Or. 273, 51 Pac. 654) ; to change remedy ui)on appeal bonds,
and transfer appeal causes from one court to another (Mexican N. R. R.
Co. V. Mussette, 86 Tex. 715, 26 Sup. Ct. 1077) ; and retrospectively to ex-
tend time for redemption of lands under execution (Scobey v. Gibson, 17
Ind. 577).
Effect of statutes making pre-existing contracts ill^al. Note, 120
Am. St. Rep. 468.
It seems that nature of society and of government establish certain limi<
tatlons upon legislative power apart from constitutional provlslonB.
The language of Chief Justice Marshall in reference to this proposition
has been quoted from in the following cases: Satterlee ▼. Matthewson,
2 Pet. 413, 7 L. Ed. 469 ; Poindexter v, Greenhow, 114 U. S. 297, 29 L. Ed.
195, 5 Sup. Ct. 918; Legal Tender Cases, 12 Wall. 581, 20 L. Ed. 322;
\
413 FLETCHER v. PECK. 6 Cr. 87-148
Chicago etc. R. R. Co. v. Chicago, 166 IL^S. 237, 41 L. Ed. 985, 17 Sup. Ct.
585 ; Avery v. Fox, 1 Abb. 253, Fed. Cas? 674 ; Baltimore etc. K. R. Co. v.
Van Ness, 4 Cr. C. C. 600, Fed. Cas. 830 ; Albee v. May, 2 Paine, 80, Fed.
Cas. 134; Bleecker v. Bond, 3 Wash. C. C. 541, Fed. Cas. 1534; Ex parte
Martin, 13 Ark. 207, 58 Am. Dec. 327; Jacoway v. Denton, 25 Ark. 643;
Hooker v. Van Haven & N. Co., 14 Conn. 153, 36 Am. Dec. 479 ; Campbell
Y. State, 11 Ga. 370 ; Beebe v. State, 6 Ind. 525 ; Petition of New Orleans
Drainage Co., 11 La. Ann. 349; Kennebec Purchase v. Laboree, 2 Me. 289,
11 Am. Dec. 90; People v. Collins, 3 Mich. 395; People v. Gallagher, 4 Mich.
251; Clark v. Mitchell, 64 Mo. 575; Griffin v. Mixon, 38 Miss. 434; Wyne-
hamer v. People, 13 N. Y. 391; Kelly v. Pittsburg, 85 Pa. St. 182, 186;
Bristoe V. Evans, 2 Overt. 346; Peerce v. Carskadon, 4 W. Va. 247, 6 Am.
Rep. 292; Baugher v. Nelson, 9 (G^ill, 307, 52 Am. Dec. 699. Mr. Justice
Johnson's observations upon the same matter are quoted in Durkce v;
Janesville, 28 Wis. 468, 9 Am. Rep. 50S, and in Milwaukee v. Milwaukee,
12 Wis. 100. In Charles River Bridge v, Warren Bridge, if Pet. 617, 9
L Ed. 851, Mr. Justice Story says: "It would be against the first prin-
ciples of justice to presume that the legislature' reserved a right to destroy
its own grant. That was the doctrine of ^letcher v. Peck, 6 Cr. 87, in this
f ourt^ and in ether cases turning upon the same grand principle of political
and constitutional duty and right." In The Legal Tender Cases, 12 Wall.
581, 20 L. BA» 322, Chase, C. J., after quoting the words of Chief Justice
Marshall, said: "These remarks of Chief Justice Marshall were made in a
case in which it became necessary to determine whether a certain act of
the legislature of Georgia was within the constitutional prohibition against
impairing the obligations of contracts. And they assert fundamental prin-
ciples of society and government in which that prohibition had its origin.
They apply with great force to the construction of the Constitution of the
United States. In like manner and spirit, Mr. Justice Chase had previously
declared (Calder v. Bull, 3 Dall. 388, 1 L. Ed. 649) that an act of the
legislature contrary to the great first principles of the social compact can-
not be considered a rightful exercise of legislative authority." In Poin-
dexter v. Greenhow, 114 U. S. 297, 29 L. Ed. 195, 6 Sup. Ct. 918, the words
of Chief Justice Marshall are quoted and referred to as expressing the
doctrine on which the constitutional provision rests. In Chicago etc. R. R.
Co. V. Chicago, 166 U. S. 237, 41 L. Ed. 985, 17 Sup. Ct. 585, Mr. Justice
Harlan said: "In Citizens' S. & L. Assn. v. Topeka, 20 Wall. 663, 22
L Ed. 461, Mr. Justice Miller, delivering the judgment of this court, after
observing that there were private rights in every free government beyond
the control of the State, and that a government, by whatever name it was
called, under which the property of citizens was at the absolute disposi-
tion and unlimited control of any depository of power was after all a
despotism, said: 'The theory of our governments, Stkte and national, is
opposed to the deposit of unlimited power anywhere. The executive, the
legislative, and the judicial branches of these governments are all of
limited and defined power. There are limitations on such power which
grow out of the essential nature of all free governments. ' " In accordance
with these principles it was held in that case that the property of the citi-
6 Cr. 87-148 NOTES ON U. S. REPORTS. 414
zen could not be taken un^er the poweil: of taxation to promote private
objects.
The principle enunciated in the syllabus is also approved in Eberhart v.
United States, 204 Fed. 893, 123 C. C. A. 180, where Congress had fixed
limitation fpr suits upon contractor's bond either by United States or by
creditors, it could not thereafter revive such liability; and in dissebting^
opinion in McLendon v. State, 179 Ala. 81, Ann. Gas. 19150, 691, 60 South.
4Q1, majority upholding proviso in revenue law which exempted ex-
Confederate soldiers from payment of occupation tax.
In Boswell v. Dickerson, 4 McLean, 267, Fed. Cas. 1683, Fletcher v. Peck
is cited to sustain the proposition that "an act assuming the power to
dispose of the property of nonresidents without notice would be opjK>sed
to the immutable principles of justice,* and under the doctrine of the
Supreme Court of the Union, the law would be held void." In Wilder v.
Lumpkin, 4 Ga. 215, it is said that "the fundamental principles of the
social compact and free government require that private rights be held
sacred." In Campbell v. State, 11 Ga. 370, it is held that "any law sub-
versive of the principle of personal liberty and natural justice is invalid,
independently of written constitutions." In Bleecker v. Bond, 3 Wash.
C. C. 641, Fed. Cas. 1634, and Grifen v. Mixon, 38 Miss. 434, the lai^uage of
Chief Justice Marshall is expressly approved. In Schroder v. Ehles, 31
N. J. L. 60, the court said: "If in England at this day an act should be
passed totally subversive of the great natural rights of man, a question
by no means settled would be presented for adjudication. In, this country
likewise, that important subject has received considerable attention at the
hands both of judges and speculative ^writers, and the preponderance of
authority seems to be adverse to the omnipotence of the legislative power.
This side of the controversy is certainly sustained by the great names of
Marshall and of Story." In Stat v. Flanders, 24 La. Ann. 71, a quotation
is made from Story on the Constitution, 1399, on this point. In Wyne-
h'amer v. People, 13 N. T. 391, it is said that "aside from the special limi-
tations of the Constitution, the legislature cannot exercise powers which
are in their nature essentially judicial or executive, but where the Consti-
tution is silent, and there is no clear usurpation of power, there would be
great difficulty and danger in attempting to define the limits of the power."
In Kelly v. Pittsburg, 86 Pa. St. 182, 186, 27 Am. Rep. 689, Chief Justice
Agnew quotes words of Chief Justice Marshall with approval, and in
support of the invalidity of an act taxing farming lands within the bound-
aries of a city, which could derive no benefit from municipal taxation,
which, it was urged, infringed the fundamental rights of the citizen. In
Peerce v. Carskadon, 4 W. Va. 247, 6 Am. Rep. 292, the court expressly
approves the language of Chief Justice Marshall. In Durkee v. Janes-
ville, 28 Wis. 468, fe Am. Rep. 503, the language of Mr. Justice Johnson
is quoted with approval, and a number of cases are referred to similar
effect.
But in Bridgeport v. Housatonic R. R. Co., 16 Conn. 497, it is said that
"a conflict of opinion is noted as to whether the legislature may take
away vested rights by retroactive legislation, without just compensation,
N.
415 FLETCHER v. PECK. 6 Cr. 87-148
<
as being opposed to the spirit of the Constitution and the fancied social
eompact, though not within the letter of any constitutional prohibition."
To similar effect is Bass v. Mayor etc. of Columbus, 30 Ga. 851. In
Stewart v. Supervisors of Polk Co., 30 Iowa, 17, 1 Am. Bep. 244» it is said
that "there is no paramount and supreme law which defines the law of
nature independent of the Constitution, and ^courts cannot assume the
rights of the people to correct unwise legislation." In Beebe v. State, 6
Ind. 525, the language of Chief Justice Marshall is distinguished as inap-
plicable to the exercise of the police power, in prohibiting the liquor
traffic. In Petition of New Orleans Drainage Co., 11 La. Ann. 349^ it is
said: "This is very delicate ground. It is asking us to hush the declared
will of a co-ordinate branch of the government, not because it contravenes
any provision of the oi^anic law which we are to expound, but because
it contradicts our notion of justice. Perhaps we have stach power; like
the right of revolution, it is continuously hinted at in judicial opinions."
In People v. Galagher, 4 Mich. 251, a conflict of opinioii is declared upon
the point stated; but in the dissenting opinion, p. 275, the language of
Chief Justice Marshall is quoted with approval. In Orr v. Quimby, 54
N. H. 647, the doctrine is criticised. In Milwaukee v. Milwaukee, 12 Wis.
100, which cites the opinion of Mr. Justice Johnson, it is said : "There are
those who, independently of constitutional restriction, and upon general
principles, and on the reason and nature of things, hold that legislative
bodies have no such authority (as to divest vested rights), and that such
a proceeding would be an act of lawless violence. The Constitution, State
and Federal, furnish ample grounds against such abuses, without resort
to such general principles." In State v. Allmond, 2 Houst. 640, it is stated
that Chief Justice Marshall "recoiled from the doctrine" announced by
him, supra, and that "there is no judicial precedent for it," and the court
declines to make the first judicial precedent, as being unnecessary, for
the reason that the guaranties of the Constitution afforded sufficient
grounds for protection.
It Is leglBlative function to prescribe general rules for goyemmest of
society. But application of those rules to individuals pertains to other de-
partment*
Approved in Taylor etc. v. Bukham etc., 108 Ky. 296, 94 Am. St. Bep.
866, 56 S. W. 181, holding legislative journals containing record of guber-
natorial election contest cannot be impeached in court; Pumell v. Mann,
105 Ky. 99, 48 S. W. 410, upholding act of March 11, 1898, giving legisla-
tnre power to appoint election commissioners; Minnesota Canal etc. Co.
V. Koochiching Co., 97 Minn. 437, 107 N. W. 408, property devoted to gen-
eration of water-power for distribution and sale to general public is de-
voted to public use ; Dow v. Railroad, 67 N. H. 47, 36 Atl. 534, as to effect
of legislative amendment to charter authorizing lease of railroad corpora-
tions; St. Paul etc. R. R. Co. v. St. Paul etc. R. R. Co., 68 Fed. 18, 32
U. S. App. 372, query whether exercise of power to forfeit lands under
voidable grant pertains solely to judiciary, or may be done by legislative
enactment; Dale v. Governor, 3 Stew. 418, Flint River S. Co. v. Foster,
6 Cr. 87-148 • NOTES ON U. S. REPORTS. 416
5 Ga. 205, 48 Am. Dec. 257, and Louisville etc. R. R. Co. v. County Court,
1 Sneed, 671, 62 Am. Dec. 488, holding it is province of the judiciary to
pronounce upon invalidity of law; Beall v. Beall, 8 Ga. 218, this power
belongs to every branch of judiciary from highest to lowest; Turner v.
Althaus, 6 Neb. 72, holding that power of judiciary department does not ex-
tend to declaring of law in^^^alid merely because it is wrong or unjust ; Cole-
man V. Newby, 7 Kan. 87, it is the province of legislature to make laws, of
judiciary to construe and to expound them, and of executive to execute
and enforce thepi ; and it is held that court rules are not in nature of law^ ;
State Bank v. Cooper, 2 Terg. 605, 24 Am. Dec. 522, holding that legisla-
ture could not create special court for determination of suits commenced
by State bank; Fisher v. Dabbs, 6 Yerg. 150, holding that legislative de-
partment cannot control the judiciary, within their peculiar sphere, nor
direct chancellor to dismiss certain cases, and to send record to another
court for trial; Powell v. State, 17 Tex. App. 361, holding to be beyond
the power of the legislative department to interpret and declare the mean-
ing of a constitutional provision; Seat of Government Case, 1 Wash. Ter.
127, holding that l^slative department of Federal government acts under
grant of i)ower from Federal Constitution, while State Constitution is mere
limitation of power of legislative department of Stat^.
Distinguished in Western Union Tel. Co. v. Myatt, 98 Fed. 347, holding
void Kansas act creating court of visitation.
Appointment to office as executive or legislative function. Note, 13
Am. St. Rep. 139.
How far iK>weor of giving law may involTe every otlier iK>wer, in cases
wbere OonBtitntlon i8 silent, never definitely stated.
Approved in Sinking Fund Commrs. etc. v. George etc., 104 Ky. 266, 47
S. W. 780, holding void act of March 5, 1898, creating board of peniten-
tiary commissioners; Territory v. Cox, 6 Dak. 508, 524, saying that "the
powers of the co-ordinate departments of government overlap so that the
line^f separation is often indiscernible by the judicial eye" ; Hovey v. State,
119 Ind. 402, 21 N. E. 24, observing that : "The line between the legislative
and executive departments is not clearly defined. The legislature may
name agencies or leave their selection to the executive"; Commissioners v.
Carter, 2 Kan. 132, holding that while line separating legislative from
judicial departments is not clearly marked, yet legislature has no powex
to declare void county bonds valid; Ex parte Williams, 31 Tex. Cr. 273,
20 S. W. 581, holding that occupation tax upon lawyers cannot be held
to be an indirect crippling of judicial department ; Commissioners of Sink-
ing Fund V. George, 47 S. W. 780, affirming act making penitentiary com-
missioners elective by legislature; Ptmell v. Mann, 48 S. W. 410, upholding
similar act respecting election commissioners.
The States are not sovereign powers, bat members of th^ Union, wliose
Oonstitation is suprema.
Cited in The Parkhill, 18 Fed. Cas. 1188, denying restitution of cor-
porate merchantman captured during Civil War.
\
417
FLETCHER v. PECK.
6 Cr. 87-148
Protiibitloii agaiBtt Impairing contract obUgations protects executed con-
tracts or grants as well as executory contracts. Contracts defined, and these
two kinds distinguished.
The language of Chief Justice Marshall uj^on this point is quoted from,
in whole or in part, in Dartmouth College v. Woodward, 4 Wheat. 682,
4 L. Ed. 670; Green v. Biddle, 8 Wheat. 92, 5 L. Ed. 570, Coast Line R. R.
Co. V. Mayor, 30 Fed. 649 , St. Louis v. Western Union Tel. Co., 63 Fed.
70. Cincinnati etc. R. R. Co. v. McKeen, 64 Fed. 46, 24 U. S. App. 218,
Stein V. Mobile, 49 Ala. 368, 20 Am. Rep. 285, Mobile v. Railroad Co., 84
Ala, 120, 5 Am. St. Rep. 846,' 4 South. 108, State v. County Court, 19 Ark.
364, 367, Adams v. Barrett, 5 Ga. 414, 415, Chanely v. Bailey, 37 Ga. 536,
State V. Mayor, 32 La. Ann. 716, Sandusky City Bank v. Wilbur, 7 Ohio
St. 494, 497, and Adams v. Reed, 11 Utah, 502, 40 Pae. 724. In Charles
River Bridge v. Warren Bridge, H Pet. 573, 9 h. Ed. 834, McLean, J., said :
'If it had not been otherwise laid down in Fletcher v. Peek, I should have
doubt^ whether this inhibition did not apply exclusively to executory
contracts. This doubt would have arisen as well from the consideration of
the mischief against which the provision is intended to guard, as from the
language of the provision itself." In Myers v. English, 9 Cal. 349, Fletcher
y. Peck is criticised as applied to executed contracts, upon ground that an
executed contract has no obligation to be impaired, and is to be protected
merely on ground of vested right. But the contrary is held and doctrine
of Fletcher v. Peck on this point affirmed, ndt only in quoting cases supra,
but also in many other citing cases hereinafter set forth.
The syllabus is also approved in Seattle etc. Ry. Co. v. Seattle, 190 Fed.
79, when street railway franchise reserved conditional right of repeal,
finding of city council that condition had arisen was not binding on court ;
Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 303, 67 S. W. 762,
holding where city grants electric company right to erect poles in street,
it cannot afterward charge company rent for use of ground occupied hy
iwlcs; Dickson v. Dick, 69 Colo. 687, 161 Pac. 443, holding void decree
which preferred buyers who had only partly ptM for their water rights
to those who had fully paid ; Milwaukee Electric Ry. etc. Co# v. Railroad
Commissioner, 153 Wis. 619, Ann. Oas. 1915A, 911, L. R. A. 1915F, 744,
142 N. W. 499, holding ordinance granting street railway franchise not to
be contract protected from impairment ; Mitel v. Gales, 12 S. D. 640, 82
N. W. 183, applying rule to question of parol modification of written con-
tract; Blood V. Electric Co., 68 N. H. 342, 39 Atl. 336, holding Manchester
council may contract for lighting beyond the expired terms of their office ;
dissenting opinion in Louisville etc. R. Co. v. Central Stockyards Co., 133
Ky. 202, 97 S. W. 797, majority holding constitutional provision to require
railroad company to transfer and deliver its own cars as well as those of
other companies; dissenting opinion in Gile v. Inter-State Motor Car Co.,
27 N. D. 135, L, R. A. 1915B, 109, 145 N. W. 743, majority holding that
want of mutuality in contract was cured when contract ceased to be
executory.
In State v. Mayor etc. of Jersey City, 31 N. J. L. 581, 86 Am. Dec. 244,
as also in Peerce v. Kitzmiller, 19 W. Va. 573, it is held that judgments
I— -27
6 Cr. 87-148 NOTES ON U. S. REPORTS. 418
for damages in tort are not contracts within the protection of the con-
stitutional provision iigainst impairment of the obligation of contracts. In
Tllinois v. Illinois Central R. R. Co., 33 Fed. 774, 775, it is said: "This gen-
eral language is to be interpreted with reference to the facts and issue in
that particular case." In Adams v. Reed, 11 Utah, 502, 40 Pac. 724, it is
held that a defective deed is an executory contract, and stands upon the
same footing as a contract to convey. In the following cases it is held that
a promise without consideration is not a binding contract within the con-
stitutional provision where no rights have become vested under it: Young
V. Harrison, 6 Ga. 155, Trustees of Bishops' Fund v. Rider, 13 Conn. 96,
and Allen v. Forrest, 8 Wash. 703, 36 Pac. 972. In Mexican N. R. Co. v.
Mussette, 86 Tex. 715, 26 S. W. 1077, it is said: "Obligations which are
protected are such as exist by reason of contract, which never ^xist with-
out consent or agreement of parties, express or implied; and it cannot be
implied when the party in whose favor the obligation exists has no power
to prevent it,*' and it is held that appeal bonds are not based uqqq the
consent of adverse litigants, and that the legislature may retroactively
affect the remedy upon such bond. In Ex parte Mayer, 27 Tex. 720, it
is held thi^t contracts whose obligations are protected do not include
rights growing out of regulations of the government relating to public
policy. In Bates v. Kimball, 2 D. Chip. 88, it is held that a report of com-
missioners allowing claims against an estate has the effect of a judgment,
and of a perfected contract of record, the obligation of which cannot be
impaired by the legislature.
The language of the chief justice as to the invalidity of a law divesting
an executed grant is quoted in Grogan v. San Francisco, 18 Ca). 612. In
Roach V. Gunter, 44 Ala. 212, 4 Am. Eep. 184, it is held that the State
cannot provide that the grantor of a conveyance may rescind it, without
the excuse of fraud, accident or mistake. In Newlan v. Marsh, 19 HI. 385,
it is held that a statute cannot be operative to take the title of one citizen
and confer it upon another, and it must not be so construed. In Lowe v.
Harris, 112 N. C. 480, 48jL, 17 S. E. 540, it is said : "No law which divests
property ou^ of one person and vests it in another for his own private
purposes, without the consent of the owner, has ever been held a valid
exercise of legislative power,- in any State of the Union." In the following
cases it is held that a municipal corporation is '^estopped by its grant of a
franchise, and that it cannot resume, modify or impair the obligation of
the grant; Coast liine etc. R. R. Co. v. Mayor etc., 30 Fed. 649; St. Louis
V. Western Union T. Co., 63 Fed. 70; Stein v. Mobile, 49 Ala. 368, 369,
20 Am. Rep. 285; Los Angeles v. L. A. C. W. Co., 61 Cal. 69; Jewett v.
Alton. 7 N. H. 256; Mayor v. Houston S. R. Co., 83 Tex. 555, 29 Am. St.
Rep. 685, 19 S. W. 129. In Lonsdale v. Moies, 15 Fed. Cas. 863, the
proposition that a grant is a contract is relied on to justify calling a deed
an agreement.
Corporate taxation as affected by contract clause in Federal Constitu-
tion. Note, 60 L. R. A. 43.
Oontracte to whldi State is party being within obligation dadse, taiA
Idgiflative grant» being a contract, may not be sabseanently impaired.
419 FLETCHER v. PECK 6 Cr. 87-148
Approved in Des Moines City Ry. Co. v. Des Moines, 151 Fed. 868, re-
straining city from tearing up tracks of street railroad in violation of
franchise; Lansing v. Michigiin Power Co., 183 Mich. 416, 150 N. W. ^56,
rieht arising from acceptance and user of grant from State to use streets
for supplying electricity cannot be abrogated by State ; Shepherd's Point
Land Co.v. HoteJ, 134 N. C. 398, 46 S. E. 749, applying rule to grant by
State to persons as owners and riparian proprietory of lot in harbor in
navigable arm of sea in front of their lands ; Noble State Bank v. Haskell,
22 Oki. 58, 97 Pac. 595, upholding law establishing fund to insure de-
positors against loss from bank failure; State v. Whitney, 66 Wash. 489,
120 Pac. 122, Congressional grant of school lands could not be withdrawn
in favor of settlers thereon before survey; dissenting opinion in State v.
Cantwell, 142 N. C. 616, 9 Ann. Gas. 141, 8 L. B. A. (N. S.) 498, 55 S. E.
824, majority holding exemption from jury duty to be mere gratuity which
might bo revoked; Trustees v. Smith, 188 N. Y. 89, 11 Ann. Gas. 1^ 9
L R, A. (N. S.) 326, 80 N. E. 671, arguendo; State v. Wilson, 7 Cr. 166,
3 L Ed. 303, and Louisiana v. Jumel, 107 U. S. 750, 27 L. Ed. 462, follow-
ing rule : Greenwood v. Union F. Co., 105 U. S. 20, 26 L. Ed. 964, and Leep
V. Railway Co., 58 Ark. 429, 41 Am. St. Rep. 124, 25 S. W. 81, it is ob-
served that the doctrine of Fletcher v. Peck, was extended and advanced
in Dartmonth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, for the
protection of franchises granted by the State to private corporations. In
Canal Co.'s Case, 83 Md. 626, 35 Atl. 365, it is stated that "the State can
no more impair through her judiciary her own contract than she can
impair the obligation of the same contract through her legislature." In
Commissioners v. Holyoke W. Co., 104 Mass. 448, 6 Am. Bep. 249, the court
Faid: "In the United States it has been settled for more than half a cen-
tniy by the decision of the Supreme Court that a grant or charter from
a State legislature is a contract within the meaning of the article of the
Constitution which declares that no State shall pass any law impairing the
obligations of contracts." In State v. Young, 29 Minn. 525, 9 N. W. 739,
it is said: "There seems to have been doubt suggested at an early day
that the clause applied to contracts made by a S^ate. The question waa
first raised in Fletcher v. Peck." In Jackson etc. R. B, Co. v. Davison,
65 Mich. 452, 37 N. W. 544, Moore, J., said : "Since the case of Fletcher
V. Peck, no one has supposed that a State can revoke its own grant, with-*
out legal proceedings."
In the following citing cases the principle that the Constitution forbids
a State to impair the obligations of its own grants and contracts has been
recognized and applied to the protection against impairment by subse-
quent enactment, of acts exempting property from taxation under a con-
tract made by the State : State v. Wilson, 7 Cr. 166, 3 L. Ed. 303 ; State
Bank v. Knoop, 16 How. 384, 14 L. Ed. 983 ; State v. County Court, 19
Ark. 364, 367, 373, 374; Seymour v. Hartford, 21 Conn. 486; State v.
Southern Bank, 23 La. Ann. 272 ; State v. Commrs., 37 N. J. L. 251 ; State
V. Branin, 23 N. J. L. 500 ; Worth v. Bailroad Co., 89 N. C. 300, 45 Am. Bep.
686; Matheny v. Golden, 5 Ohio St. 366; though a grant of such exemption
ia not to be construed as a contract unless made clearly binding as such.
\
6 Cr. 87-148 , NOTES ON U. S. REPORTS. 420
(London v. Litchfield, 11 Conn. 268, Sejonour v. Hartford, 21 Conn. 486,
Proyidence Bank v. Billings, 4 Pet. 563, 7 L. Ed. 956; Grand Lodge v. Cit>%
44 La. Ann. 665, Washingtoif University v. Rouse, 42 Mo. 317, Plank Road
Co. V. Husted, 3 Ohio St. 683, Iron City Bank v. Pittsburg, 37 Pa. St.
343, and Herrick v. Randolph, 13 Vt. 530) ; nor is an exemption in another
State effective to preclude taxation. Appeal Tax Court v. Patterson, 50
Md. 372. Again the doctrine has been applied to the protection of acts
conferring charters and franchises upon private corporations: Dartmouth
College V. Woodward, 4 Wheat. 656, 682, 4 L. Ed. 664, 670 ; Planters' Bank
V. Sharp, 6 How. 331, 12 L. Ed. 460 ; Davis v. Gray, 16 Wall. 232, 21 L. Ed.
457; Greenwood v. Union Freight Co., 105 U. S. 20, 26 L. Ed. 964; Pearsall
V. Great N. R. R. Co., 161 U. S. 662^ 40 L. Ed. 843, 16 Sup. Ct. 708; Gray
V. Davis, 1 Woods, 423, 424, Fed. Cas. 5715; Camblos v. Philadelphia etc.
R. R. Co., 4 Fed. Cas. 1106; Bronson v. Taylor, 33 Conn. 117; W. & B.
R. R. Co. v. Bowers, 4 Houst. 533 ; Young v. Harrison, 6 Ga. 154 ; Hamilton
V. Keith, 5 Bush, 462; Montpelier A. Trustees v. George, 14 La. 408, 83
Am. Dec. 590 ; State v. Noyes, 47 Me. 206 ; Canal Co. v. Railroad Co., 4 Gilt
& J. 128, 146; Boston etc. Corp. v. Salem etc. R. R. Co., 2 Gray, 31, 34;
Michigan State Bank v. Hastings, 1 Doug. (Mich.) 234, 41 Am. Dec. 551;
Dow v. Northern R. R. Co., 36 Atl. 534; State v. Branin,^23 N. J. L. 500;
Matheny v. Grolden, 5 Ohio St. 366; State v. Matthews, 3 Jones, 464;
State V. Heyward, 3 Rich. 409; Attorney General v. Railroad Co., 35 Wis.
563; but where there is a reserved power to repeal or amend the charter
^of a corporation, no contract is violated or impaired by ^uch repeal or
amendment (Penn. College Cases, 13 Wall. 213, 20 L. Ed. 553; Miller v.
New York, 15 Wall. 489, 21 L. Ed. 101; Leep v. Railway Co., 58 Ark. 429,
41 Am. St. Rep. 124, 25 S. W. 81 ; Bronson v. Taylor, 33 Conn. 117 ; Statt
V. Northern C. R. R. Co., 44 Md. 165; Commissioners v. Holyoke W. Co.,
104 Mass. 448, 6 Am. Rep. 249; Proprietors v. Haskell, 7 Me. 477; In the
Matter of Oliver Lee etc. Bank, 21 N. Y. 14; MXaren v. Pennington and
Others, 1 Paige, 108;*Iron City Bank v. Pittsburg, 37 Pa. St. 343; State
V. Brown Mfg. Co., 18 R. I. 24, 25 Atl. 249) ; though, even in ^uch cases,
the property rights of a cor])oration remain inviolable (Attorney General
V. Railroad Co., 35 Wis. 563 ; People v. O'Brien, 111 N. Y. 48, 7 Am. St.
Rep. 702, 721, 18 N. E. 702). Acts and Constitutions of Kentucky and
Vii^inia constituting a compact between those States for thp protection of
claimants of lands under laws of Virginia are protected bj/ this principle
(Green v. Biddle, 8 Wheat. 92, 5 L. Ed. 570) ; as also a patent to lands
granted by a State (Williams v. Norris, 12 Wheat. 125, 6 L. Ed. 574; Doe
V. Buford, 1 Dana, 488) ; a grant of lands by the King of Spain (United
States V. Arredondo, 6 Pet. 738, 8 L. Ed. 565) ; acts granting lands in aid
of railroads (Davis v. Gray, 16 Wall. 232, 21 L. Ed. 457; Gray v. Davis,
1 Woods, 423, Fed. Oas. 5715; United States v. Minnesota etc. R. R, Co.,
1 Minn. 133 ; Koenig v. Omaha etc. R. R. Co., 3 Neb. 383 ; Railroad Co. v.
Commissioners, 36 Tex. 427, 434) ; but Congress may repeal a territorial
grant to a railroad company made upon condition which was not fulfilled
(Rice V. Minn. etc. R. R. Co., 1 Black, 374, 17 L. Ed. 151) ; and a State
may repeal a grant of submerged lands in a harbor made without con-
r
y
421 FLETCHER v. PEQK. 6 Cr. 87-148
sideration to a railroad oompany^ so far as not executed by improvements
actually made (State v. Illinois C. R. R. Co., 33 Fed. 774, 775) ; acts grant-
ing lands for public squares may not be impaired (United States v. Illinois
Cent. R. R. Co., 164 U. S. 244, 38 L. Ed. 976, 14 Sup. Ct. 1019 ; Warren v.
Mayor, 22 Iowa, 358; Cooper v. Alden, Harr. (Mich.) 85; Le Ole^q ▼.
Trustees, 7 Ohio, 221, 28 Am. Dec. 64S) ; nor an act granting a franchise
to build a track in a street (Port of Mobile v. L. & N. R. R. Co., 84 Ala.
120, 5 Am. St. Bep. 346, 4 South. 108) ; or a right to construct locks (En-
field Toll B. Co. V. Conn. R. R. Co., 7 Conn. 48) ; a State contract leasing
a State's prison is inviolable (McCauley v. Brooks, 16 Cal. 30) ; a State
grant of swamp-lands (Montgomery v. Kasson, 16 Cal. 194) ; legislative
grant of lands to a city or town (Grogan v. SaA Francisco, 18 Cal. 612,
613; Richardson v. Brown, 6 Me. 358; In re Malone's Estate, 21 S. C. 449;
Brownsville v. Basse, 36 Tex. 501) ; or to a county (Galveston v. Tank-
(rsly, 39 Tex. 657) ; lands granted in aid of schools (State v. Springfield
Tp., 6 Ind. 97; Roberts v. M. & Ky. etc. R. R. Co., 43 Kan. 108, 22 Pac.
1008; Simmons v. Holmes, 49 Miss. 140; Grammar School v. Burt, 11 Vt.
Wl; Grammar School v. Bailey, 62 Vt. 476, 477, 20 AtL 823); but Con-
press with the consent of the State at any time prior to survey could
change the terms of the grant of the sixteenth and eighty-sixth section
in aid of schools so as to except mineral lands, and grant others in lieu
thereof (Haydenfeld v. Daney etc. Co., 10 Nev. 310) ; other grants of land
from the State are protected (Hilliard v. Connolly, 7 Ga, 179; Winter v.
Jones, 10 Ga. 196, 54 Am. Dec. 388).
The following have also been held inviolable contracts under the doctrine
of the principal case: An act granting 'a lottery franchise for a license
paid therefor (Boyd v. State, .46 Ala. 334) ; the executed compact of the
States with the Federal government (Hawkins v. Filkins, 24 Ark. 319;
Chanceley v. Bailey, 37 Ga. 536) ; an act granting to a purchaser at tax sale
the right to repayment with interest of all money paid (Corbin ▼. Commis-
sioners, 3 Fed. 362, 1 McCrary, 527) ; and the right to a deed within a
specified time (Hull v. State, 29 Fla. 89, 30 Am. St. Bep^99, 11 South. 99;
Brace V. Schuyler, 9 111. 276, 278, 46 Am. Dec. 458, 460) ; a legislative
grant of a right to take tolls upon a turnpike (Derby Tp. v. Parks, 10
Conn. 541, 27 Am. Dec. 704) ; a municipality's lighting contract (Blood v.
Manchester Elec. L, Co., 39 Atl. 336) ; an exclusive right to erect a toll
bridge (Enfield T. B. Co. v. Hartford etc. R. R. Co., 17 Conn. 61, 42
Am. Dec 723 ; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 68 ; see Charles
River Bridge v. Warren Bridge, 7 Pick. 507, 11 Pet. 420, 9 L. Ed. 778 ;
Chenango B. Co. v. Binghamton B. Co., 27 N. Y. 92, 119) ; a State indorse-
ment of bonds of railroad companies, except as adjusted with the consent
of Bondholders (State v. Cobb, 64 Ala. 152) ; a State appropriation for pay-
ment of its obligations (Carr v. State, 127 Ind. 207, 22 Am. St. Bep. 627,
26 N. E. 779) ; State railroad bonds, which cannot be impaired by con-
stitutional amendment (State v. Young, 29 Minn. 526, 529, 531, 9 N. W.
739, 741^ 743) ; a legislative grant of a charity (Prince William S. Board
V. Stuart, 80 Va. 80, i)er Lewis, J., majority holding contra that the
charity was within the scope of general legislative power) ; a grant from
\
6 Cr. 87-148 NOTES ON U. S. REPORTS. 422
the State authorizing the obstruction of a stream by a dam (Glover v.
Powell, 10 N. J. Eq. 229; People v. Piatt, 17 Johns. 216, 8 Am. Dec.
388; State v. Glenn, 7 Jones, 327); a State contract for the constmction
of a public work (Danolds v. State, 89 N. Y. 45, 46, 42 Am. Rep. 280) ;
an a«t granting a right to cut a canal through the State (State v. Burgess,
23 La. Ann. 227) ; a State grant of 'a right of wharfage (Langdon v.
Mayor, 93 N. Y. 166) ; a sale of land by commissioner appointed by the
legislature (Stanmire v. Taylor, 3 Jones, 213); and an act funding the
public debt and making coupons receivable for demands due the State
(Antoine v. Wright, 22 Gratt. 872).
In Boston Water P. Co. v. Boston etc. R. R. Co., 23 Pick. 394, H, is held
that a State grant of land does not preclude the taking of the land by
the State by the power of eminent domain, upon payment of compensation.
In Allen v. Forrest, 8 Wash. 703, 36 Pac. 972, it is held that a law grant-
ing to the improver of tide-lands ^a right to purchase them from the State
conferred no vested right prior to purchase, and that as to cases when
the privilege of purchase had not been exercised, the legislature might
repeal the law, and provide for use and occupation of the lands for other
purposes. In Russell v. Barney, 6 McLiean, 682, Fed. Cas. 12,162, it is
held that the principle that a grant made pursuant to an act of' the legis-
lature may not be impaired by the State is inapplicable to a statute of
limitations operating conditionally to defeat the title granted. In The
P^alo Alto, 2 Ware (Dav.), 366, Fed. Cas. 10,700, it is held that the prin-
ciple of the cited case is inapplicable where a donation from the govern-
ment is not delivered or is coupled with a condition precedent to be per-
formed hy the grantee. In State v. Young, 29 Minn. 529, 631, 9 N. W.
741, the question is discussed as to how far there may be an obligation
resting upon a State for which there may be no judicial remedy. In Carr
V. State, 127 Ind. 207, 22 Am. St. Rep. 627, 26 N. E. 779, it is said that
the State may defeat enforcement of its obligation by failure to make an
appropriation, and that it cannot be sued. In Poindexter v. Greenhow,
114' U. S. 286, 29 Ji. Ed. 191, 6 Sup. Ct. 912, it is said: "It is true that no
remedy for breach of its contract by a State by way of damages for its
compensation, or by means of process to compel its performance, is |ppen
in the courts of the United States, by a direct suit against the State itself
on the part of the injured party, being a citizen of another State or sub-
ject of foreign State. But it is equally true that whenever in a contro-
versy between parties to a suit of which these courts have jurisdiction, the
question arises upon the validity of a law of a State impairing the obliga-
tion of its contract, the jurisdiction is not thereby ousted, but must be
exercised, with whatever legal consequence, to the rights of the litigants,
may be the result of the determination."
Distinguished in Supreme Council v. Logsdon, 183 Ind. 192, 108 N. E.
690, where charter granted to benefit association, reserved right of amend-
ment, l^slature might provide that amendments to by-laws must be
attached to certificate.
Power of State to annul its contract by legislative act. Note, Ann.
Gas. 1915B, 187.
423 FLETCfiER v. P^CK.. 6 Cr. 87-148
Nullification or breach of State contract as impairment of obligation
of contract. Note, 45 L. B. A. (N. S.) 721.
Bevocation of license of foreign corporation for removal of action to
Federal court. Note, L. R. A. 1916F, 1191.
Federal Uxnitatioiis upon State power are f ouided on d^ire to protect
life and property from midden and strong passions to whicli men are exposed.
Cited in Cummings v. Missouri, 4 Wall. 322, 18 L. Ed. 362, United States
V. Johnson Co., 5 Dill. 212, Fed. Cas. 15,485, Bonaparte v. Camden Co., 1
Bald. 220, Fed. Cas. 1617, Jacoway v. Denton, 25 Ark. 643, Weidenger v.
Spruance, 101 111. 298, State v. Johnson^ 12 Minn. 485, 93 Am. Dec. 248,
and Garland v. Brown, 23 Gratt. 176.
Bills of attainder may affect the life of an individnal or confiscate his
property, or may do botlu »
Approved in Norris v. Doniphan, 4 Met. (Ky.) 434, where an act of
1862 confiscating the property of rebels as a punishment for treason was
held unconstitutional; In re Yang Sing, 13 Sawy. 485, 36 Fed. 439,
where it is held that a legislatiye act "^hich undertakes to inflict upon
Chinese the punishment of banishment or exile from the United States is
void as being a bill of attainder; Ex parte Law, 35 Gn. 302, 15 Fed. Cas.
10, and In re Shorter, 22 Fed. Cas. 19, which af&rm the invalidity of the
test oath aot of Congress of 186i5; Myers v. Sanders, 7 Dana, ^9, where
it is held that an act making a patent from the State a subject of for-
feiture was a bill of pains and penalties.
Ex post facto law is one which renders an act panUOiable in a manner
in which It was not punishable wlien committed.
Approved in Frank v. Mangum, 237 U. S. 344, 59 L. Ed. 987, 35 Sup. Ct.
582, and Boss v. Ort^n, 227 U. S. 161, Ann. Gas. 19140, 224, 57 L. Ed.
463, 33 Sup. Ct. 220, both holding that provision against ex post facto
laws applies only to legislative and not to judicial action; Kentucky
Union Co. v. Kentucky, 219 U. S. 153, 65 L. Ed. 155, 31 Sup. Ct. 171,
upholding law forfeiting land titles for failure to list and pay taxes;
Orr V. Gilman, 183 U. S. 286, 46 L. Ed. 201, 22 Sup. Ct. 216, uphold-
ing tax act of April 16, 1897, subdivision 5; Iowa v. Jones, 128 Fed.
628, holding Laws 27th General Assembly, Iowa, page 58, chapter 109, pro-
viding that whenever per^n has been twice convicted of larceny of prop-
erty exceeding twenty dollars in value, and shall thereaften be convicted
of such offense, he shall be punished for term of not less than fifteen years,
not ex post facto where prior convictions and punishments therein com-
pleted prior to its passage; De Pass v. Bidwell, 124 Fed. 623, upholding
section 5 of Foraker act relating to Porto Rico ; Diamond State Iron Co. v.
Husbands, 8 Del. Ch. 226, 68 Atl. 246, upholding statute which gave to
corporate charter not recorded in time fixed by general law the same effect
as if it had been so recorded ; Shepherd v. Grimmett, 3 Idaho, 409, 31 Pac.
795, upholding elector's oath, act of February 25, 1891; State v. Rooney,
12 N. D. 151, 95 N. W. 515, act of 1903, substituting })enitentiary for coun^^
j&il as place of confinement pending execution and directing executions
there, not ex post faeto as to one convicted prior to its pasigage; Jones y.
6 Cr. 87-148 NQTES ON- U. S. REPORTS. 424
State, 9 Okl. Cr. 652, 48 L. B. A. (N. 8.) 204, 133 Pac. 252, statute impos-
ing greater penalty for second conviction is not ex post facto as -to one
whose first conviction occurred prior to its passage; Ex parte Larkin, 1
Okl. 58, 11 L. B. A. 418, 25 Pac. 747, act of territorial assembly continuing
in force Neb. Cr. Code is not ex post facto as offenses already committed
but not prosecuted ; League v. Texas, 184 U. S. 161, 46 L. Ed. 478, 22 Sup.
C^. 477, arguendo; Cummings v. Missouri, 4 Wall. 326, 18 L. Ed. 864, test^
oath imposed by Missouri Constitution is ex post facto; Gut v. Minnesota,
9 Wall. 38, 19 L. Ed^74, law changing place of trial of criminal case,
though passed subsequent to commission of the offense or finding of the
indictment, is not invalid ; L&peyre v. United States, 17 Wall. 206, 21 L. Ed.
611, where Hunt, J., expressed opinion that act previously lawful cannot
be made unlawful and punishable whether matter was considered as crimi-
nal or civil in its nature; Bui^ess v. Salmon, 97 p. S. 384, 24 L. Ed. 1106,
where it is held that an act increasing a duty on tobacco and imx)08ing a
penalty for nonpayment is ex post facto as applied to lesser duty paid
before act took effect; Ex parte Medley, 134 U. S. 171, 83 L. Ed. 840, 10
Sup. Ct. 387, where it was held that an act providing solitary confinement
before the execution of a murderer was ex post facto as to a crime com-
mitted before its passage ; Whitney v. Emmet, 1 Bald. 316, Fed. Cas. 17,585,
where it is held that law construed as imx)osing a forfeiture of the rights
of a plaintiff in a patent case, when he was entitled to. treble damages for
injury, would be ex post facto ; Hart v. State, 40 Ala. 38, BB Am. Dec. 756,
wMch holds that law authorizing a conviction upon less evidence than was
required when the offense was committed is ex post facto; Ex parte Law,
35 Qa. 310, 16 Fed. Cas. 12, holding that retrospective part of test oath,
act of Congress of 1865 was bill of attainder and ex post facto; Blake's
Case, 1 Blackf . 483, as to nature of an ex post facto law, but holding that
retrospective act requiring an attorney to take oath that he has not en-
gaged in" duel is not ex post facto ; Wooley v. Watkins, 2 Idaho, 566, Shep-
herd V. Grimmett, 2 Idaho, 1128, 31 Pac. 795, and Anderson v. Baker,
23 Md. 566, 582, 605, holding that law requiring electors to verify their
qualifications by oath was not ex post facto; Strong v. State, 1 Blackf. 198,
n. 2, where definition is held not to preclude act changing punishment of
offense after its commission, from stripes to confinement in State prison;
Wilson v. 0. & M. R. W. Co., 64 111. 546, 16 Am. Rep. 568, holding that act
substituting new punishment for violation of iA*ior prohibited act is ex
post facto ; Weidenger v. Spruance, 101 111. 298, where Mr. Justice Dickey
is of opinion that a law imposing a new liability upon holders of fully
paid-up stock in a corporation was in the nature of a bill of attainder and
an ex post facto law; In re Petty, 22 Kan. 482, holding that law imposing
one year's imprisonment in addition to penalty of death, as to crimes pre-
viously committed, is ex post facto and void ; Lynn v. State, 84 Md. 78, 35
Atl. 22, holding that retrospective act for benefit of the accused, lessen-
ing the penalty, is not ex post facto; In re Miller, 110 Mich. 677, 64 Am.
St. Rep. 377, 68 N. W. 990, upholding statute denying to convicts serving
second term any reduction in sentence for good behavior, though first
offense was prior to its enactment; Murphy and Glover Test Oath Cases,
41 Mo. 371, where Holmes, J., is of opinion that retrospective test oath aet
425 FLETCHER v. PECK. 6 Cr. 87-148
is biU of pains and penalties mei^ng ex post facto elements ;. State v.
Johnson, 12 Minn. 484, 98 Am. Dec. 247, holding act allowing evidence of
an indirect character to pi:pve marriage under an indictment for polygamy
was ex post facto as applied to past offenses ; State v. Thompson, 141 Mo.
417, 42 S. W. 961, holding that law regulating evidence and mode of proce-
dure in criminal case and providing for leomparison of handwriting is not
ex post facto as applied to crimes previously committed; State v. Ryan,'
13 Minn. 375, holding that act allowing seven peremptory challenges to
State upon trial of offenses committed before its passage was not ex post
facto; State v. McDonald, 20 Minn. 139, holding that act adding an alter-
native punishment of fine and imprisonment for offense previously punish-
able only by imprisonment, as to offenses previously committed, is ex post
facto; lindzey v. State, 65 Miss. 546, 7 Am. St Rep. 677, 5 South. 100,
holding ex post facto an act precluding a defense to a misdemeanor, and
changing, without mitigating, the punishment; Moore v. State, 43 N. J. L.
217, where definition of Chief Justice Mailshall was criticised as not pro-
viding for validity of a mitigation of punishment, and it was held that act
anthorizing a trial and punishment of one against whose punishment limi-
tation had previously run, was ex post facto, and the quoting caaie; State
V. Moore, 42 N. J. L. 232, was overruled on that point, Van Syckel, J., dis-
senting, pp. 231, 235 ; Hartung v. People, 22 N. Y. 104, 109, holding that
act adding imprisonment at hard labor to the death penalty, as to persons
previously convicted, was ex post facto ; Shepherd v. People, 25 N. Y. 415,
where Sutherland, J., says, in reference to the definition quoted: "Add to
this *or which increases the punishment with which the act was punish-
able when committed,' and 1 think the definition will be as complete and
certain and safe as can well be made,'' but it was held that an act changing
the punishment for arson in the first degree from death to imprisonment
for life could not be said with certainty not to increase the punishment,
and was ex post facto as applied to previous offenses ; Green v. Shumway,
39 N. Y. 424, holding retrospective test oath law was ex post facto ; Holt
V. State, 2 Tex. 364, holding act requiring the jury to assess punishment
to be inflicted held not ex 'post facto a3 applied to prosecution pending;
Murray v. State, 1 Tex. App. 428, holdinjg that change of Constitution tak-
ing away an alternative power of the jury to substitute imprisonment for
life for death penalty, secured by a previous Constitution, as applied to
previous offenses, is ex post facto ; In re Wright, 3 Wyo. 483, 27 Pac. 567,
holding thit act substituting trial by information instead of by indictment
is not ex post facto as to previous offenses.
In the following cases it is held that the doctrine of ex post facto laws
applies to criminal cases only, and not retrospective laws affecting civil
cases or vested rights ; Watson v. Mercer, 8 Pet. 110, 8 L. Ed. 884 ; Balti-
more etc. R. R. Co. V. Nesbit, 10 How. 402, 13 L. Ed. 472; Carpenter v.
Commonwealth, 17 How. 463, 15 L. Ed. 129; Society v. Wheeler, 2 Gall.
138, Fed. Cas. 13,156 ; Ex parte Gariand, 4 Wall. 390, 18 L. Ed. 874 ; Holmes
V. Bank of Norfolk, 12 Ala. 417; Wilder, v. Lumpkin, 4 Ga. 215; Martin-
dale V. Moore. 3 Blackf . 277, 278 ; Baugher v. Nelson, 9 Gill, 306, 52 Am.
Dec. 698; Anderson v. Baker, 23 Md. 566, 582, 605; Davis v. Minor, 1 How.
6 Cr. 87-148 NOTES ON U. S. REPORTS. 426
(Miss.) 192, 28 Am. Dec. 830; Rich v. Flanders, 39 N. H. 313, 376; Suydam
V. Bank of New Brunswick, 3 N. J. Eq. 117; Green v. Shumway, 39 N. Y.
432 ; Burch v. Newbilrg, 10 N. Y. 391 ; Grim v. Weisenbui^ S. Dist., 57 Pa.
St. 435, 98 Am- Dec. 238; Lane v. Nelson, 79 Pa. St. 410; Ex parte Hunter,
2 W. Va. 159 ; Ex parte Quarrier, 4 W. Va. 223.
Ex post facto laws. Note, 37 Am. St. Bep. 584-587.
Provision of Constitation, afterward clianged by amendmenli, considered
in ar^nilng as to auestion of construction.
In Hoffman v. Harrington, 28 Mich. 109, it is said: ^A constitutional
provision may have a modified application in consequence of a construction
based on its original connection with clauses erased by amendment ; Norris
V. Clinkscales', 47 S. C. 506, 25 S. E. 804, applies cited case to change in
language in section of new Constitution as compared with same section in
the other Constitution.
«
Beservatlon of Indian lands did not alter houndaries of colony, and State
was seised in fee of such lands^ notwithstanding Indian tlUe which was to he
respected until extinguishment.
Approved in Labadie v. United States, 6 Okl. 414, 51 Pac. 670, Indian
sustaining tribal relations and cubing timber on Osage reservation for
speculative purposes is subject to fine; dissenting opinion in Kean v. Calu-
met Canal Co., 190 U. S. 479,' 47 L. Ed. 1144, 23 Sup. Ct. 659, majority
holding nnder swamp-land act of 1850, Indians acquired all land under
water up to State line; Johnson v. Mcintosh, 8 Wheat. 592, 5 L. Ed. 693;
Cherokee Nation v. State, 5 Pet. 48, 8 L. Ed. 42; Clark v. Smith, 13 Pet.
201, 10 L. Ed. 126; Leavenworth etc. R. R. Co. v. United States, 92 U. S.
754, 23 L Ed. 643, holding that Indian title was in its nature mere right of
occupancy, which was incapable of alienation. In Cherokee Nation v.
Georgia, 5 Pet. 57, 70, 8 L. Ed. 45, 50, Justice Thompson s^ys: "Whether
they have a right of soil or a right of occupancy, they are entitled to proteo- »
tion according to Fletcher v. Peck," Elk v. Wilkins, 112 U. S. 108, 28
L. Ed. 648, 5 Sup. Ct. 48, holding that Indian who is member of tribe recog-
nized by government, though residing in State, is not citizen of United
States under Fourteenth Amendment; Blocker v. Bond, 3 Wash. C. C.
542, Fed. Cas. 1534, and Gilman v. Brown, 1 Mason, 212, Fed. Cas.
5441, opposing doctrine of Fletcher v. Peck, as to the nature of the
Indian title and the power of the State to grant lands in fee; Goodfellow
V. Muckey, 1 McCrary, 244, Fed. Cas. 5537, holding that treaty with Potta-
watomie tribe of Indians did not amount to grant in praesenti to that tribe;
Thompson v. Doaksum, 68 Cal. 595, 10 Pac. 200, holding that Congress has
control over all Indian lands, and that lands in California in occupancy of
Indian tribes at date of the treaty of Hidalgo because part of public do-
mains are subject to pre-emption ; East Haven v. Hemingway, 7 Conn. 198,
holding that Indians had no legal capacity to sell lands occupied by them,
and legislature could grant them or ratify the sale of them to a town;
Doe V. Avaline, 8 Ind. 13, holding that legislative designation of Indians,
jas having one-eighth of Indian blood, applies to an act for the relief of
427 FLETCHER v. PECK 6 Cr. 87-148
the Miami Indiana ; Roberts v. M. K. & T. R. R. Co., 43 Kan. 108, 22 Pao.
1008, holding that grant of the sixteenth and thirty-sixth sections to State
ineloded those occupied by Indians; Caldwell v. State, 1 Stew. & P. 347,
holding that the State had tight to extend its civil and criminal jurisdiction
over any tract of Indian country within its limits, though Indian title then
is not extinguished; Gaines v. Hale, 26 Ark. 184, holding that though the
United States conld convey in fee simple lands occupied by Indian tribes
before Indian title was extinguished, yet it was policy of government to
protect such land, and that right of pre-emption did not extend to such
lands; Veale v. Maynes, 23 Kan. 28, holding that treaty of 1846 with
Pottawatomie Indians only recognized their possessory right, but 'that
under treaties of 1861 and 1867 conveyances were contemplated/ to adult
male heads of families who left tribe and became eitizeps, and that patent
to head of family conveyed title as against allotment to another member;
Breaox v. Johns, 4 La. Ann. 142, 143, 60 Am. Dec. 557, 558» holding that
Indian tribes in Louisiana to whom lands were allotted by laws of Spain,
were never invested with ownership, but title was in United States, who
eonld grant fee subject to Indian right of occupancy; Montgomery v. Ives,
13 Smedes ft M. 175, holding that Indian title not being exting^iished in lands
reserved under the proclamation of George 11, grant by royal Gbvemor in
1772 had no vaHdity; Utah Mining Co. v. Mining Co., 6 Utah, 3.96, 21 Pae.
1007, holding that government of United States having succeeded to title in
fee simple of lands occupied by Indians subject to their right of occupancy.
United States by treaty with Chippewa Indians could confer upon land
department power to dispose of lands to heads of families without consent
or ratification of Congress; Vender v. Guppy, 3 Wis. 526, holding that pos-
session of land by Indians did not affect validity of the government grant,
and that right of Indiana to occupancy was not involved in suit between
individuals claiming under same grant of Congress; In re Narragansett
Indians, 40 Atl. 368, holding conveyance of lands by Indian sachem, re-
serving certain lands to himself and heirs forever, did not Vest in him fee
in part reserved.
Qualified in The Narragansett Indians, 20 R. I. 769, 40 Ati. 368, dis-
cussing title to lands of Narragansett Indians.
Eminent domain consists of power to oblige dtisen to sell and convey,
when public necensities require it.
This proposition is quoted and applied in Chambers' v. C. ft G. R. R. Co.,
69 Ga. 322, State v. Nemaha Co., 7 Kan. 674, BuUer v. Sewer Commission,
39 N. J. L. 669, Russel v. Mayor, 2 Denio, 472, and White .¥• Nashville etc.
B. R. Co., 7 Heisk. 539.
Feigned case should not be decided.
Cited in Smith v. Brown, 3 Tex. 372, 49 Am. Dec. 749, holding that a
fictitious case brought for purpose of obtaining opinion of court on the
matters presented by it is contempt of court, and court will not give opin-
ion on abstract question of law, where case is made up for that purpose ;
Am. W. P. Co. V. Heft, 131 U. S. 93, Appx., opinion of Johnson, J., is
6Cr.l4a-170 NOTES ON U. S. REPORTS. 428
referred to as favoring dismissal of an appeal where it appears that the
suit was fictitious and collusive; Ward v. Alsup, IQO Tenn. 739, 740, 46
S. W. 574, reviewing authorities upon this poimt at length, but dismissing;
appeal on other grounds. ^ ^
CompromlM hy State aaid the United States of controveiBy as to vacant
lands will not now be disturbed.
Cited in Rhode Island v. Massachusetts, 12 Pet. 729, 9 L. Ed. 1262, Dred
Scott V. Sandford, 19 How. 502, 15 L. Ed. 741, and Seneca Nation v.
Christie, 126 N. Y. 137, 27 N. E. 279, discussing various matters as to terri-
tory of United States; In re Narragansett Indians, 40 Atl. 368, as to Rhode
Island settlement with Indians.
Constitutionality of Sunday laws. Note, 49 Am. Dec. 621.
Effect of dissolution of corporation, whether by repeal of its charter
or otherwise. Note, 7 Am. St. Rep. 702, 721.
Legislative control over the property of municipalities. Note, 35 Am.
St. Rep. 583. '
Priority between different grantees of land. Note, 10 E. R. G. 544.
Miscellaneous. Cited in Gidings v. San Antonio, 47 Tex. 556, 26 Am.
Rep. 326, ascribing the constitutional requirement that the title of an act
state its contents, to frauds under the Yazoo act of Georgia of 1795, out of
which Fletcher v. Peck arose ; Van Dolsen v. New York, 17 Fed. 818, 21
Blatchf . 456, as an instance of title traced to royal grant from the crown ;
Montgomery v. Ives, 13 Smedes & M. 173, and In re Turner, 5 Ohio, 543,
but not in point.
6 Cr. 14S-170, S L. Ed. 181, MASSIE ▼. WATT8. '
[Affirmed by Kerr v. Watts, 6 Wheat. 657, 558, 560, 5 L. Ed. 330, 337.]
In QLuestioBs of contract, tmst and fraud, equity has Jurisdiction wherever
person is found, though decree may affect lands without its jurisdiction.
Approved in Hale v. Tyler, 11 Fed. 839, and Manley v. Carter, 7 Kan.
App. 87, 52 Pac. 915, both following rule; Philadelphia Co. v. Stimson,
223 U. S. 622, 56 L. Ed. 578, 32 Sup. Ct. 340, courts of District of Columbia
have jurisdiction of suit to restrain Secretary of War from interfering
with attempts of riparian owner in Pennsylvania to reclaim submerged
lands; Fall v. Eastini, 215 U. S. 9, 28 L. B. A. (N. S.) 924, 54 L. Ed. 69,
30 Sup. Ct. 3, deed to land in one State executed in carrjdng out decree
of divorce in another need not be recognized under full faith and credit
clause; Orinoco Iron Co. v. Metzel, 230 Fed. 47, bankruptcy court in
determining conflicting claims to property in its jurisdiction acts essen-
tially as court of equity; Louisville & N. R. Co. v. Western Union Tel. Co.,
207 Fed. 6, 124 C. C. A. 573, Federal court in one State had power to pre-
vent removal of telegraph poles and wires from entire railroad system, situ-
ated partly in other States; Texas Co. v. Central Fuel Oil Co., 194 Fed. 8,
114 C. C. A. 21, suit to enforce specific performance of contract to deliver
oil may be maintained in any court having jurisdiction of persons of de-
\
429 MASSIE v. WATTS. • 6Cr.Ua-170
fendants; California Development Cy. v. New Liverpool Salt Co. (Th^
Salton Sea Cases), 172 Fed. 816, 97 C. C. A. 214, enjoining injury to real
property caused by improper construction of wprks for diversion of water
situated in Mexico; Byrne V. Jones, 159 Fed. 329, 90 C. C. A. 101, com-
pelling trustee to reconvey lands fraudulently acquired by him in another
jurisdictioi>; Vacuum Oil Co. v. Eagle Oil Co., 154 Fed. 875/ granting relief
against acts of fraud and unfair competition committed partly in foreign
country; Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 16, 81 C. C. A.
207, Federal courts in Nevada had jurisdiction of action by owner of water
right in Nevada to prevent interference therewith by appropriator in Califor-
nia of waters from same stream ; Wilhite v. Skelton, 149 Fed. 72, upholding
jurisdiction over suit for specific performance of contract to convey interest
in mine situated out of jurisdiction and to recover share of profits ; Western
Union 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 territorial jurisdiction; Miller v. Rickey, 127
Fed. 579, holding suit brought to enjoin defendant from wrongfully diverting
in California, waters naturally flowing down a river having its source in that
State, and flowing into and through State of Nevada, wl^re complainant's
lands are situatea, is transitory action, so that court in Nevada having
acquired jurisdiction of defendant's person can try same; Memphis Sav.
Bank v. Houchens, 115 Fed. 109, holding equity may direct administration
of trust, though part of property is without its territorial jurisdiction;
Guarantee Trust etc. Co. v. Delta etc. Co., 104 Fed. 10, holding equity Fed-
eral court cannot, through its master, transfer title to lands in another State ;
Title Ins. & Trust Co. v. CaUfornia Dev. Co., 171 Cal. 198, 199, 152 Pac.
553, court of equity may control action of stockholders in Mexican corpo-
ration; Griffith V. Stewart, 31 App. D. C. 36, specifically enforcing con-
tracts made in Maryland concerning land in that State; Moore v. Jaeger,
2 McAr. (D. C.) 471, enforcing resulting trust in lands situated in another
jurisdiction ; Bevans v. Murray, 251 111. 625, 626, 96 N. E. 554, setting
aside void conveyance of land in other State made under testamentary
power of sale ; White Star Min. Co. v. Hultberg, 220 111. 600, 77 N. E. 335,
enforcing award of arbitrators concerning mining claim in Alaska; Sulli-
van V. Kenney, 148 Iowa, 388, 126 N. W. 359^ setting aside deeds of land
in other State for fraud and undue influence; Chicago etc. Ry. Co. v.
Wynkoop, 73 Kan. 593, 85 Pac. 596, action of injunction to prevent closing
of under-grade railroad crossing need not be brought in county where
crossing is situated; Fulton v. Oertling, 131 La. 773, 60 South. 240, injunc-
tion liAg to prevent mortgagor from destroying mortgaged property situ-
ated without jurisdiction of court; Kinder v. Scharff, 125 La. 598, 51 South.
656, court may annul conveyance of lands in Texas made in fraud of cred-
itors; Willey V. St. Charles Hotel Co. etc. Consolidated, 52 La. Ann. 1593,
,28 South. 187, holding creditor having two funds amenable to his debt
may be compelled to do equity to person having but one fund; White v.
Warren, 214 Mass. 207, 100 N. E. 1106, court of sister State granting
divorce may by decree in personam incidentally affect dower right in
X
/
dCr. 148-170 NOTES ON U. S. REPORTS. 4S0
Massachusetts; State v. District Cou»t 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; Hewitt v. Price, 204
Mo. 44, 120 Am. St. Rep. 681, 102 S. W. 650, wliere, in suit on note for defi-
ciency, defendant pleaded as counterclaim invalidity of foreclosure for
fraud, action was triable only in county where land was situated; State
V. Homer, 164 Mo. App. 353, 145 S. W. 503, enforcing covenant as
to switching cars contained in deed of right of way in another State;
Silver Camp Mining Co. v. Dickert, 31 Mont. 493, 78 Pac. 968, action for
specific performance of contract to convey realty is in personam; Wyman.
V. Herard, 9 Okl. 63, 59 Pac. lt)17, upholding jurisdiction over counter-
claim; Bowler v. First Nat. Bank, 21 S. D. 459, ISO Am. St. Rep. 725, 113
N. W. 622, State court has jurisdiction of action by trustee in bankruptcy
to vacate deed of bankrupt, though property situated in other State;
Roberts v. W. H. Hughes Co., 86 Vt 96, 83 Atl. 816, court of New York,
by virtue of its jurisdiction over corporation and its directors, might com-
pel transfer of title to realty in Vermont to receiver; Rosenbaum v. Evans,
63 Wash. 509, 510, 115 Pac. 1055, court had jurisdiction to correct descrip-
tion in deed to land in another State; State v. Superior Court, 55 Wash.
330, 133 Am. St. Bep. 1030, 104 Pac. 608, action to enforce trust in real
and personal property is transitory; Webb v. Ritter, 60 W. Va. 235, 54
S. E. 501, Virginia court might decree sale of land, though owing to divi-
sion of State part of it no longer lay in Virginia; Dickson v. Loehr, 126
Wis. 645, 4 L. B. A. (N. S.) 986, 106 N. W. 794, where vendee agreed to
convey land in another State as security for installment of price, in action
to foreclose entitled to judgment that vendee pay amount due or convey
land; O'Dell v. Boyden, 150 Fed. 736, arguendo; Pennoyer v. Neff, 95
U. S. 723, 24 L. Ed. 569, holding, however, that such exercise of jurisdic-
tion does not interfere with control of property by State of situs; Ager
V. Murray, 105 U. S. 131, 26 L. Ed. 943, subjecting patent right to pa3rment
of judgment against patentee; Hart v. Sansom, 110 U. S. 155, 28 L. Ed.
108, 3 Sup. Ct. 589, holding that decree removing cloud from title to land
within State does not bar nonresident defendant, cited by publication,
from suing in Circuit Court to recover land; Cole v. Cunningham, 133
U. S. 117, 118, 83 L. Ed. 543, 10 Sup. Ct. 272, 273, holding that equity may
enjoin citizens of one State from prosecuting suits in another; similarly
in Cole v. Young, 24 Kan. 438, Hay den v. Yale, 45 La. Ann. 371, 40 Am.
St. Rep. 240, 12 South. 637, Dehon v. Foster, 4 Allen, 551, and Williams
v. Fitzhugh, 37 N. Y. 450 ; Carpenter v. Strange, 141 U. S. 106, 36 L, Ed.
647, 11 Sup. Ct. 966, holding, however, that such decree does not binc^
courts of State of land's situs; dissenting opinion in Cherokee Nation
V. Georgia, 5 Pet. 79, 8 L. Ed. 58, denying injunction against enforcement
of certain Georgia laws concerning Cherokee territory; Pierpont v. Fowle,
2 Wood & M. 39, Fed. Cas. 11,152, upholding right of equity in proper case
to settle dispute as to title to copyright; Briggs v. French, 1 Sumn. 504, ^
Fed. Cas. 1870, asserting equity jurisdiction over constructive trust, though
lands to be affected are without its jurisdiction; Northern Indiana R. R.
Co. V. Michigan Cent. R. R. Co., 15 How. 243, 14 L. Ed. 679, holding, how-
431 MASSES V. WATTS. 6 Cr. 14g-l70
ever, that sneli jurisdiction does not include local actions as to land;
Picqnet v. Swan, 5 Masoiiy 42, Fed. Cas. 11,134, distinguishing local actions
from matters collateral and binding upon conscience; Baker v. Biddle,
1 Bald. 416, Fed. Cas. 764, holding that at any stage of equity caus^ de-
fendant may object that plaintiff has remedy at law; Leland t. The Ship
Medora, 2 Wood. & M. 114, Fed. Cas. 8237, holding that equity having
jurisdiction for one purpose' may act as to incidental legal matters; Cheever
V. Wilson, 9 Wall. 121, 19 L. Ed. 607, holding that decree may be enforced by
proper proceedii^gs in situs rei, if valid; Clark v. Hammett, 27 Fed. 341, hold-
ing that decree against nonresident quieting title to lands within jurisdiction
does not bar his subsequent action of ejectment; Remer v. McKay, 54 Fed.
4^, where suit was to remove cloud cast upon title to Iowa land by void
decree of Iowa court against Illinois defendant; Lynde v. Columbus,
C. & 0. Ry. Co., 57 Fed. 996, holding thai equity decree foreclosing mort-
gage on railroad situate in two States, without execution, does not bar suit
in another State between same parties to foreclose same mortgage; Muni-
cipal Ins. Co. V. Gardiner, 62 Fed. 956, holding that suit to enforce contract
to convey land should be brought where one of the parties resides ; Wood-
bury V. Allegheny & K. R. R. Co., 72 Fed. 374, 375, holding th^t courts
of either State may foreclose mortgage of railroad situated in two States ;
Guild V. Guild, 16 Ala. 125, holding that court having jurisdiction of hus-
band can decree, to nonresident wife, settlement out of her separate estate ;
Pillow V. King, 55 Ark. 639, 18 S. W. 765, upholding decree of Tennessee
court conjpelling restoration of deed of Arkansas land, where court had
jurisdiction of parties; Rourke v. McLaughlin, 38 Cal. 201, enforcing for
nonresident plaintiff against resident defendant contract to convey Cali-
fornia likids; Le Breton v. Superior Court, 66 Cal. 29, 4 Pac. 779, holding
that action for settlement of trust in real and personal property need not
be brought in- county of situs of real property ; Smith v. Davis, 90 Cal. 30,
25 Am. St. Rep. 94, 27 Pac. 27, appointing trustees to carry out trust deed
of foreign lands ; Winn v. Strickland, 34 Fla. 630, 16 South. 612, holding
that such decrees may bind parties in other State as to matters properly
determined; Adams v. Lamar, 8 Ga. 94, refusing partition of local lands
against nonresident not consenting to court's jurisdiction; Engel v. Scheu*
erman, 40 Ga. 210, 2 Am. Rep. 674, restraining resident from collecting in
another State, judgment obtained therein ; Kennedy v. Northup, 15 111. 153,
affirming equity jurisdiction in cases of fraud; Alexander v. Tolleston
Club, 110 111. 77, enjoining one resident in favor of another from inter-
fering with right of way over lands in another State ; Johnson v. Gibson,
116 111. 302, 6 N. E. 209, compelling conveyance of lands in foreign juris-
diction in case of fraud ; Cloud v. Greasley, 126 111. 319, 17 N. E. 828,
den3ring specific })erformance of contract as to foreign lands because of
noncompliance with statute of frauds; Hayes v. O'Brien, 149 111. 410, 37
N. E. 74, decreeing specific performance of contract to convey land in
another county; McGregor v. MacGregor, 9 Iowa, 78, 80, holding New York
decree as to Iowa lands conclusive upon Iowa courts ; Gilliland v. Inabnit,
92 Iowa, 50, 51, 60 N. W. 212, 213, holding that Kentucky court may
enforce execution of trust in Iowa lands, though title is essential point;
6 Cr. 148-170 NOTES ON U. S. REPORTS. 432
Frank v. Peyton, 82 Ky. 153, upholding jurisdiction of Kentucky court to
enjoin conveyance ' of Illinois lands, and to entree contract to convey;
McQuerry v. Gilliland, 89 Ky. 440, 12 S. W. 1038, allowing action in Ken-
tuck|' to enforce conveyance of lands in Iowa; Reed v. Reed, 75 Me. 269,
holding that equity may pass upon deed and mortgage of foreign lands;
Brown v. Chesapeake etc. Canal Co., 73 Md. 607, upholding power of Mary-
land court to sell canal in entirety though partly located outside jurisdic-
tion; Binney's Case, 2 Bland Ch. 145, discussing right of Maryland court
to control expenditures of resident corporation in other States where it
held property; Brown v. Desmond, 100 Mass. 269, issuing process to en-
force Rhode Island decree of specific performance of contract to convey
Massachusetts lands; Carver v. Peck, 131 Mass. 292, denying equity's
jurisdiction to enforce payment of debt out of property not reachable by
execution, where law judgment Was not had; Jenkins v. Lester, 131 Mass.
357, refusing, as against resident trustee, enforcement of trusty created by
decree of foreign court having jurisdiction thereof; Graydon v. Church, 7
Mich^ 53, allowing New York assignee for benefit of creditors to file bi]
to foreclose Michigan mortgage included in assignment; Edson v. Cuming
52 Mich. 55, 17 N. W. 694, annulling local judgment and enjoining proceed-
ings thereon in Ohio; McKinney v. Curtiss, 60 Mich. 621, 27 N. W. 696,
upholding equity's jurisdiction in case of fraud though triable at law;
Great Falls Mfg. Co. v. Worster, 23 N. H. 468, enjoining resident defend-
ant from injuring orator's property in Maine; Marsh v. Eastern R. R. Co.,
40 N. H. 575, 77 Am. Dec. 744, holding that equity may enforce, in New
Hampshire, contract made and to be performed in Massachusetts; Lindley
v. O'Reilly, 50 N. J. L. 641^7 Am. St. Rep. 806, 15 Atl. 382, holding that
decree in such suit imposes mere personal obligation, but does not 'transfer
or vest title in foreign jurisdiction; Bullock v. Bullock, 51 N. J. Eq. 446,
447, 27 Atl. 436, affirmed in 52 N. J. Eq. 566, 46 Am. St. Rep. 531, 30 Atl.
677, refusing to execute New York decree ordering execution of mortgao:e
on New Jersey lands as security for alimony; United States v. Maxwell
Land Grant Co., 5 N. M. 304, 21 Pac. 155, to direct point of principal case ;
Mitchell 'v. Bunch, 2 Paige, 616, 22 Am. Dec. 674, holding that equity may
compel defendant within jurisdiction to pay debts out of property else-
where; Sutphen v. Fowler, 9 Paige, 282, oi^dering resident infant heir to
perform ancestor's contract to convey Michigan lands; Shattuck v. Cas-
sidy, 3 Edw. Ch. 153, enforcing contract as to foreign lands, defendants
having submitted to jurisdiction; De Klyn v. Watkins, 3 Sand. Ch. 187,
setting asi.-e conveyance of foreign lands and ordering reconveyance ; New-
ton V. Bronson, 13 N. Y. 591, 67 Am. Dec. 91, decreeing specific perform-
ance of contract to convey Illinois lands; Gardner v. Ogden, 22 N. Y. 336,
78 Am. Dec. 198, ordering reconveyance of foreign lands; Williams v.
Fitzhugh, 37 N. Y. 450, ordering cancellation of Ohio mortgage given to
secure New York contract void for usury; dissenting opinion in Pitiket v.
Johns, 1 Dev. Eq. 135, which held South Carolina decree declaring con>
veyence of North Carolina lands void, a nullity; Burnley v. Stevenson, 24
Ohio St. 478, 15 Am. Bep. 625, holding Kentucky decree ordering convey-
ance of Ohio lands, though unexecuted, conclusive upon parties and
433 MASSIE v. WATTS. 6 Cr. 148-170
privies; Johnston v. Wadsworth, 24 Or. 498, 34 Pac. 14, enforcing contract
to purchase lands in another county; Robertson v. Auld, 6 Yerg. 410,.hold-
ing suit by locator for locative interest not necessarily local, may be per-
sonal; Pickett V. Ferguson, 86 Tenn. 650, 651, 652, 8 S. W. 388, 389, passing
without decision, question as to court's jurisdiction to enforce constructive
trust in foreign lands ; King v. Pillow, 90 Tenn. 288, 16 S. W. 469, com-
pelling restoration of fraudulently destroyed deed of Arkansas lands;
Mosby V. Gisbom, 54 Pac. 127, allowing action to set aside judgment in the
county where rendered, though lands elsewhere affected; DiclmnBon v.
flpomes, 8 Gratt. 411, 413, compelling Virginia heirs to pay ancestor's
debts out of lands descended to them in Kentucky; Virginia v. Levy, 23
Grait. 35, holding conclusive upon Virginia courts, decree of New York
court holding charitable devise of Virginia lands by fTew York resident
void ; Barger v. Buckland, 28 Gratt. 863, sustaining power of Circuit Court
to direct sale of land lying partly in Virginia and partly in West Vir-
ginia; Davis V. Morris Exrs., 76 Va. 30, holding Virginia trustee's estate
liable for breach of trust in Mississippi lands,^ beneficiaries being Virginia
residents; Pqindezter v. Burwell, 82 Va. 513, approving Virginia process,
directing resident trustee to satisfy personally binding contract out of
individual interest in trpst lands in Texas; State v. Superior Court, 7
Wash. 307, 34 Pac. 1103, holding action to enforce trust and have account-
ing thereunder transitory; Leach v. Buckner, 19 W. Va. 45, (Correcting
decree of settlement between Ohio, court and domiciliary administrator,
vitiated by fraud, same person being ancillary administrator in West Vir-
ginia; Chapman v. Railroad Co., 26 W. Va. 309, where, Pennsylvania. court
having directed sale of all title held in West Virginia lands under mort-
gage. West Virginia court upheld its right to determine what such title
was.
Distinguished in Jones v. Byrne, 149 Fed. 470, Federal court cannot
decree foreclosure of lien on and order sale of land in another State;
Columbia National Sand Dredging Co. v. Morton, 28 App. D. C. 296, 7
L B. A. (N. S.) 114, refusing to enjoin dredging of sand and gravel-bar
in Maryland where only question involved was one of title; Phelps v.
McDonald, 2 McAr. (D. C.) 400, refusing to compel bankrupt to assign
money paid to British government upon awards under treaty of 1871;
Randall v. Ross, 94 Kan. 713, 147 Pac. 74, action to annul exchange of
lands fraudulently obtained held properly brought in county where lands
were situated; Fall v. Fall, 75 Neb. 126, 129, 113 N. W. 178, 179, where
person ordered by court to convey land in another State failed to do so,
title to such land was not affected by decree ; Burton-Lingo Co. v. Patton,
16 N. M. 310, 27 L. E. A. (N. S.) 420, 107 Pac. 681, disregarding decree of
Texas court adjudicating and transferring lien on land in New Mexico;
Holt V. Guerguin, 106 Tex. 189, 50 L. R. A. (N. S.) 1136, 163 S. W. 12,
court had no power to set aside deed of deceased person to land in Mexico
or to decree partition thereof ; Tennants ' Heirs v. Frelts, 67 W. Va. 571,
140 Am. St. Bep. 979, 29 L. R. A. (N. S.) 625, 68 S. E. 388, jurisdil^tion of
suit to remove cloud and quiet title is determined by situs of land ; Jones
V. Fletcher, 42 Ark. 446, 447, where Arkansas statute gave equity judg-
1—28
6 Cr. 148-170 NOTES ON U. S. REPORTS. 434
ment as to foreign landsi effect of judgment in rem ; Blackman v. Wright,
96 Iowa, 651, 65 N. W. 846, holding New York decree ordering conveyance
bt lands in Iowa not binding upon prior grantees of parties; Mussina v.
Aliiilg, 11 La. Ann. 572, refusing to direct conveyance of Texas lands in
case of fraud; Worthington v. Lee, 61 Md. 542, holding that Maryland
courts cannot decree performance of covenants of renewal as to parties
outside jurisdiction, though lands are within it; Texas & Pacific Ry. Co.
V. Gay, 86 Tex. 589, 26 S. W. 605, holding Circuit Court of Louisiana
could hot appoint receiver of Texas property, and confer upon him power
to take possession and administer. ^
Action for specific performance of contract to convey realty as action
in personam, or in rem. Note, 3 Ann. Oas. 1004.
Right of vendor in executory contract for sale of realty to maintain
action for specific performance where land is situated in another
State or country. Note, Ann. Oas. 19120, 539.
Equity jurisdiction over suits affecting realty outside State. Note,
69 L. R. A. 675, 677, 678, 689.
Law governing validity of transfer of property. Note, 5 £. R. C. 930.
If by any reasonable construction of an entry It can he supported, courts
will support it.
Cited in Green v. Neal, 6 Pet. 296, 8 L. Ed. 404, holding decisioSis of
State courts upon similar local statutes binding upon Federal courts;
McArthur v. Nevill, 3 Ohio, 186, holding that entry should be construed,
if possible, according to the intentions of the locator.
In construing entry, rectangular form should be preserved in absence of
crontrolling caUs directing otherwise.
Approved in Kentucky Coal & Timber Dev. Co. v. Kentucky Union Co.,
214 Fed. 601, applying rule to entry of State land in Kentucky; Doe v.
Porter, 3 Ark. 57, 36 Am. Dec. 451, construing boundaries in deed, quantity
yielding to distance which yields to objects; White v. Gay, 9 N. H. 131,
31 Am. Dec. 226, holding that of inconsistent boundaries retain those best
comporting with prevailing design; Buckley v. Gilmore, 12 Ohio, 78, sus-
taining ambiguous entry by retaining most important boundaries; Fereru-
son V. Bloom, 144 Pa. St. 565, 23 Atl. 52, construing location as rectangle
by presumptions as to boundaries; Hull v. Fuller, 7 Vt. 105, holding that
redundancy of description should not overcome intentions of parties ; Smith
V. Chapman, 10 Gratt. 474, holding that more material and certain calls
should control in case of confiict; McNeel v. Herold, 11 Gratt. 315, discuss-
ing disputed boundaries of claims whose calls intersect.
Criticised in Corlies v. Little, 14 N. J. L. 378, as to its holding, in
interpreting boundaries in deed.
Where agent acting for principal surveys land and takes patent in own
name, he becomes trustee for principal.
Approved in Copper River Min. Co. v. McClellan, 2 Alaska, 144^ apply-
ing rtile to location of mining claims; Thompson v. Burk, 2 Alaska, 252,
435 MASSIE v. WATTS. 6 Cr. 148^170
where defendant located placer claim, bat made no discovery, and there-
after ]daintiff relocated and without notifying defendant 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. 607, 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 oiler's descend-
ants by operation of law, it was incumbent on them to convey to com-
plainant right purchased; Brandon v. West, 28 Nev. 507, 83 Pac: 328,
where land owner conveyed all sand on land by executed oral sale, it was
incumbent on his descendants to convey right purchased; Skerrett v.
Presbyterian Society, 41 Ohio St. 630, holding that such trust attaches to
lands in hands of agent's grantee; Gardner v. Ogden, 22 N. Y. 341, 78
Am. Dec. 202, liolding broker's clerk trustee where he purchased under
knowledge obtained in his emplojnnent; Columbus Co. v. Hurford, 1 Neb.
160, applying rule to agent acting for principal and purchasing in his own
name; Rose v. Hayden, 35 Kan. 109, 57 Am. Rep. 147, 10 Pac. 556, apply-
ing rule where agent to purchase land bought and took title in his own
name; Irvine v. Marshall, 20 How. 565, 15 L. Ed. 998, disciissing jurisdic-
tion of United States courts tp enforce such trusts; Felix v. Patrick, 145
U. S. 327, 86 L. Ed. 724, 12 Sup. Ct. 865, holding as trustee for Indian
one who illegally located land taken by fraud from latter; Chaffin v. Hull,
49 Fed. 528, applying rule where agent bought outstanding claim against
principal's land which latter wished to contest if he could not acquire
hy purchase.
Miscellaneous. Cited in United States \. Wonson, 1 Gall. 18, Fed. Cas.
16,750, as sustaining right of Circuit Court to proceed as appellate court
witliout retrial of cause by jury..
Suit in chancery to try title to land must be tried in district In wbicb
land lies.
Approved in Schmaltz v. York Mfg. Co., 204 Pa. St. 13, 93 Am. St. Rep.
786, 59 L. R. A. 907, 53 Atl. 526, holding Pennsylvania court could enjoin
one of its citizens from removing property in New York transferred by
conditional sale; Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 450, 58
L. E. A. 178, 67 S. W. 857, holding void Shannon's Code, section 5298,
relative to personal judgments and attachments against nonresidents;
Rpbinson v. Johnson (Tenn. Ch. App.), 52 S. W. 705, holding equity can
compel heirs of intestate to convey lands located in another State, to a
special commissioner to be sold for payment of debts ; Mosby v. Gisborn, 17
Utah, 278, 54 Pac. 127, holdifig action to vacate decree may be brought
where rendered though it affects land elsewhere; Wilson v. Braden, 48
W. Va. 199, 36 S. E. 368, holding trustee appointed by court of another
State cannot convey land in this State.
Distinguished in Lindsley v. Union etc. Min. Co., 26 Wash. 303, 304, 66
Pae. 383, holding equity has no jurisdiction to enjoin trespass and waste
in a mine located in a foreign jurisdiction.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removed to. Federal courts.
Note, 40 L. R. A. (N. 8.) 888.
/
6 Cr, 171-183 NOTES ON U. S. REPORTS. 436
Miscellaneonfi. Cited in American Creosote Works v. C. Lembcke & Co.,
165 Fed. 812, and Ryan v. Martin, 165 Fed. 773, to point that court of
equity ynll settle whole controversy where it has jurisdiction of part in-
volving principles upon which whole depends.
6 Cr. 171-176, ^L. Ed. 180, UNITED STATES y. nALL.
'^Dangers of seas'* includes stress of weather l^ringing ship to foreign port,
where local authorities land it.
Approved in The Frey, 106 Fed. 320, holding that excessive violence of
sea causing shifting of cargo was proximate cause; Duronsseau v. United
States, 6 Cr. 322, 3 L. £d. 287, holding, where party to embargo bond was
prevented from relanding goods under similar circumstances, he had good
defense; The G. R. Booth, 171 U. S. 453, 43 L. Ed. 437, 19 Sup. Ct. 11,
holding explosion of part of cargo not peril of seas within exception in bill
of lading; Dixon v. United States, 1 Brock. 183, Fed. Cas. 3934, holding
that under embargo act bond made ^payable to United States is good.
Consequence of perils of sea must be ascribed to proximate cause.
Cited in Dyer v. Piscataqua F. & M. Ins. Co., 53 Me. 120, in construing
policy of marine insurance, loss must be traceable to peril insured against,
as proximate cause.
Miscellaneous. The following citations respecting ex post facto laws
arise from the principles discussed in United States v. Hall, 2 Wash. C. C.
366, Fed. Cas. 15,285, affirmed by the principal case: Garvey v. People, 6
Colo. 566, 571, 45 Am. Rep. 537, 540, and Kring v. Missouri, 107 U. S. 229,
27 L. Ed. 509, as defining ex post facto law; In re Wright, 3 Wyo. 481,
81 Am. St. Rep. 98, 27 Pac. 566, distinguishing holding of lower court from
that in principal case; and to same point in People v. McDonald, 5 Wyo.
534, 42 Pac. 17; State v. Rooney, 12 N. D. 150, 95 N. W. 515.
6 Or. 176-183, 3 L. Ed. 190, CAMPBELL ▼. GORDON.
Certificate that proper oath administered to applicant raises presumption
that prerequisites complied with.
Approved in United States v. Stoller, 180 Fed. 913, refusing to vacate
decree of naturalization for failure to comply with directory provisions of
statute ; United Sj;ates v. Aakervik, 180 Fed, 141, refusing \o vacate, under
naturalization act of 1906, order admitting to citizenship where time to
vacate such order under prior law had expired ; -Dolan v. United States,
133 Fed. 448, certified copy of record of court showing admission of alien
to citizenship constitutes ''certificate of citizenship" within meaning of
Rev. Stats., §§ 5425, 5427, making it criminal to aid another in using false
certificate for certain purposes; State v. Weber, 96 Minn. 428, 105 N. W.
492, record of Court of Common Pleas of Meigs county, Ohio, constitutes
judgment admitting to citizenship person therein named ; City of Rockland
V. Inhabitants of Hurricane Isle, 106 Me. 172, 76 Atl. 287, record of natural-
ization need not show residence in State for required time; dissenting
opinion in United States .v. Mulvey, 232 Fed. 521, majority holding that^
437
CAMPBELL V. GORDON.
6 Cr. 176-183
where applicant was not entitled to naturalization, certificate might be set
aside on application by .district attorney; Croesus Mining etc. Co. v. Colo-
rado Land etc. Co., 19 Fed. 82, one having tkken oaih of intention may
locate mining claim; In re Bodek, 63 Fed. 814, holding that naturalization
proceedings are judicial; United States v. Gleason, 78* Fed. 397, :w^here
naturalization by New York Superior Court was in question; Headman v.*
Rose, 63 Gra. 463, admitting in evidence minutes of City Court of Savannah
to show ex parte judgment of naturalization; People v. McGowan, 77 III.
647, 20 Am. Rep/ 255, holding such presumption conclusive as to recitals
in record; Morgan v. Dudley, 18 B. Mon. 719, 68 Am. Dec. 743, sustaining
jurisdiction of State courts in exercising powers of naturalization; Andres
V. Circuit Judge, 77 Mich. 88, 43 N. W. 858, disallowing attack by showing
lack of conformity to -previous requirements; Priest v, Cummings, 16
Wen^. 625, holding that such proceedings should be liberally construed and
every intendment made in their favor; McCarthy v. Marsh, 5 N. Y. 284, as
to conclusiveness of judgment of court of competent jurisdiction admitting
alien to citizenship; Towle's Cases, 5 Leigh, 746, holding that certificate
need not set forth* statutory oath as given.
Distinguished in Johannessen v. United States, 225 U. ,S. 236, 56 L. Ed.
1069, 32 Sup. Ct. 613, certificate of naturalization fraudulently and illegally
procured by perjured testimony may be.ci^nceled in independent proceed-
ings under act of 1906; Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S.
245, 23 L. Ed. 318, holding that such certificate cannot be introduced m
distinct proceeding as proof of age, residence or character of applicant,
and passing upon letters of administration as evidence; Charles Green's
Son v. Sales, 31 Fed. 110, holding that naturalization cannot be proven by
certificate of clerk of court, giving no extract from record; to same effect
in Miller v. Rein^art, 18 Ga. 246; Dryden v. Swinburne, 20 W. Va. 121,
124, 127, 129, holding that presumption does not validate naturalization
provable only by parol, no record existing or being given in evidence.
»
Grant of administration as evidence of death. Note, 19 Am. Rep. 150.
NatnraUzation of father glvcfi citizensbip to minor child within United
States at passage of act 1802, though in foreign ceuntry when father natu-
ralized.
">,
Approved in In re De Simone, 108 Fed. 944, holdihg courts may deter-
mine citizenship of party under naturalization laws notwithstanding ad-
verse decision by immigration officers; Conover v. Old, 80 N. J. L. 539, 77
Atl. 1071, naturalizaEon of father confers citizenship upon minor child
who resides in United States afterward and during minority; Boyd v.
State, 143 U. S. 177, 36 L. Ed. 115, 12 Sup. Ct. 387, extending statute so
as to give it respective operation; United States v. Kellar, 11 Biss. 318,
s. c, 13 Fed. 84, 85, holding that marriage of alien widow to naturalized
citizen confers citizenship ui>on her and her son; dissenting opinion in
Amy V. Smith, 1 Litt. (Ky.) 341, majority holding slaves not citizens;
Mick V. Mick, 10 Wend. 380, holding that alien widow of natural-born
citizen cannot be endowed by reason of her alienism; Young v. Peck, 21
Wend. 391, 393, affirmed by 26 Wend. 624, holding that daughter of Ameri-
6 Cr. 183-192 NOTES ON U. S. REPORTS. 438
can resident before .Deolaration of Independence is not an alien, thoagh
born in Scotland in 1769, living there until ^830, when she came to
America, though her father died in America in 1823; Sasportas v. De la
Mottd, 10 Rich. Eq. 46, applying rule to children born abroad of nataral-
ized parents; State v. Boyd, 31 Neb. 710, 48 N. W. 746, holding, however,
that where child is above twenty-one he does not become a citizen; with
same qualification in Dryden v. Swinburne, 20 W. Va. 129; Vint v. King^
28 Fed. Cas. 1203, holding that where a man was naturalized in 1787, his
children coming from Ireland in 1792 became naturalized.
Distinguished in Zartarian v. Billings, 204 U. S. 174, 51 L. Ed. 429, 27
Sup. Ct. 182, alien minor child coming to join naturalized parent debarred
from landing because afflicted with dangerous contagious disease; State v.
Andriano, 92 Mo. 76, 77, 79, 4 S. W. 264, 266, 266, givi^ to statute. pros-
pective application applicable to all naturalizations thereunder.
Miscellaneous. Cited in Holmgren v. United States, 217 U. S. 517, 19
Ann. Ctti. 778, 54 L. Ed. 865, 30 Sup. Ct. 988, to point that Congress may
authorize naturalization proceedings in State courts.
6 Or. 183-187, S L. Ed. 193, McKNIOHT Y. CBAXO'8 AI>MB.
I
Upon death of defendant pendente Ute, administrator can only plead on
sctre facias^ what intestate might have pleaded.
# Cited in Janney v. Mandeville, 2 Cr. C. C. 31, Fed. Cas. 7213, following
rule; Borden v. Thorpe, 13 Ired. 302, holding that admiiiistrator cannot
plead want of assets.
In cases of reversal, court below will enter Jadgmmt with costa of that)
court.
Cited in Bumham y. Rangeley, 2 Wood. & M. 422, Fed. Caa. 2177, hold-
ing that costs will not be allowed to party, where he has oaae dismiaaed
for want of jurisdiction.
Distinguished in Tugman y. National Steamship Co., 24 Blatchf. 309,
s. c, 30 Fed. 804, where question as to costs arose up6n order of Supreme
Court to proceed no fui^her in matter.
6 Cr. 187-192, S !•. Ed. 194, KENNEnY y. BBBNT.
Marshal most serve process as soon as he reasonably can.
Cited in Whitney v, Butterfield, 13 Cal. 340, 73 Am. Dec. 586, holding
sheriff responsible for failure to do so ; Winter v, Ludlow, 30 Fed. Cas. 340,
holding that process issued by Circuit Court for either of two districts in
State may be served in other.
After service of process upon him, garnishee cannot legally part with
money.
Cited in Pratt v. Burr, 5 Biss. 53, Fed. Cas. 11,373, applying rule where
maker of note after bill tiled against him and assignees thereof to set aside
transfer and recover note, pays judgment in favor of assignees; Comstock
439 KORN V. MUTUAL ASSURANCE SOCIETY. 6 Cr. 192-202
y. Rayford, 1 Smedes ft M. 442, 40 Am. D9C. 105, holding that gamiflhee
is liable if he allows property out of his hands after service of subpoena.
Writ of error allowed In Supreme Court on Judgment in agreed case.
Cited in United States v. Bliason, 16 Pet. 301, 10 L. Ed. 972, and Derby
V. Jacques, 1 Cliff. 433, Fed. Cas. 3817, as allowing writ of error in Supreme
Cotirt to Circuit Court on judgment rendered ux>on agreed case.
Miscellaneous. Cited in Dillon v. Fahey, 88 Conn. 607, 92 Atl. 413, to
X>oint that beneficiary of garnishment must follow strictly form and
requisites of writ. ^
6 Om 192-202, 3 Ik Ed. 196, EOBN v. MUTUAIi ASSX7SAKCE SOOIETT. v
Contract obligations . existing between Individuals were not affected by
a^iwntlon of Alexandria ttoai Virginia.
Cited in Mutual Assurance Soc. v. Watts, 1 Wheat. 282, 4 L. Ed. 91,
appl3ring holding to liens on Alexandria property for assurance assessments.
Members by agreement may be bound by future changes in regulations
and 1>7-lawi of.
Approved in Reynolds v. Supreme Council Royal Arcanum, 192 Mass.
156, 7 Ann. Oas. 776, 7 L. R. A. (N. S.) 1154, 78 N. E. 132, mutual benefit
society may adopt increased graduated benefit assessment schedule suffi-
cient to cover cost of insurance; Farmers' etc. Ins. Co. v. Kinney, 64 Neb^
811, 90 N. W. 927, holding member of mutual insurance company bound
by subsequently enacted by-laws which are reasonable in their nature, and
adopted in conformity with authority conferred by statute upon such
compafiy ; Thomas v. Knights of Maccabees, 85 Wash. 672, L. R. A. 1916A,
750, 149 Pac. 10, holder of mutual benefit certificate held to have no vested
right preventing association from raising assessment in order to meet death
claims; Zinn v. Oermantown etc. Ins. Co., 132 Wis. 89, 111 N. W. 1107,
surplus of mutual insurance company, ordered to be distributed, becomes
at once property of several members thereof then existing; Supreme Com-
mandery v. Ainsworth, 71 Ala. 451, 46 Am. Rep. 841, and Hobbs v. Iowa
Mut. Benefit Assn., 82 Iowa, 113, 31 Am. St. Rep. 471, 47 N. W. 985, hold-
ing that, in absence of enabling stipulations, subsequent changes in by-laws,
cannot work forfeiture of preissued certificate; Sprigg v. Western Tele-
graph Co., 46 Md. 78, holding that charter changed by legislature and
adopted by majority of members of corporation binds nonconsenting mem-
bers, unless purpose of corporation is thereby changed; Wist v. Grand
Lod^e, A.. 0. U. W., 22 Or. 286, 29 Am. St. Rep. 613, 29 Pac. 614, holding
that changed law cannot work forfeiture l^y retroaction upon member un-
able, without fault of his own, to perform new conditions created by it;
Straus V. Eagle Ins. Co., 5 Ohio St. 63, holding that corporation may
make contracts necessary to purposes of its creation ; in Stratton v. Mutual
Assurance Soc, 6 Rand. 28, as to general principles applicable to powers
of such corporations.
6 Cr. 203-206 NOTES ON U. S. REPORTS. MO
Liability of members of mutual fire insurance eompanies. Note, 32
L. R. A. 486, 487.
Effect on insurance of foreign insurer's failure to comply with statu-
tory requirements. Note, 20 L. R. A, ^09.
Miscellaneous. Approved in Fidelity etc. Casualty Co. v. Fruman, 109
Fed. 857, upholding Tenn. Acts 1895, chapter 160, section 22, relative to
warranties and misrepresentations in insurance policies; Huber v. Martin,
127 Wis. 432, 105 N. W. 1037, determining rights of members of mutual
insurance company in net assets when it ceases to do business.
6 Or. 203, 3 Ik Ed. 199, UNITED STATES v. SHIP HELEN.
.
Vessel having violated law of United States cannot be seized after expira-
tion of such law.
Approved in Thompson v. Union Trust Co., 130 Mich. 513, 90 N. W. 296,
holding depositor may set off amount standing to his credit when bank
becomes insolvent, against his notes payable to bank and not then due;
Maryland v. Baltimore etc. R. R. Co., 3 How. 552, 11 L. Ed. 722, holding
that State has right to remit penalty imposed by law; Dagccs v. EweJl, 3
Woods, 348, Fed. Caa. 3537, holding that repeal of law forfeiting inteicst
on usurious contracts does not affect existing contracts; United State's v.
Van Vliet, 22 Fed. 643, holding that after repeal of law imposing penalty
for exacting excessive fee for procuring pension, penalty is remitted as
to offenses prior to repeal; State v. President etc. Tombeckbee Bank, 1
Stew. 349, applying rule to repeal of statute imposing penalty upon banks
for failure to pay stock tax; Coles v. County of Madison, Breese, 158, 12
Am. Dec. 165, applying rule so as to remit penalty after verdict, but before
jtldginent^ Thompson v. Bassett, 5 Ind. 536, applying rule to penalty for
breach of bond to procure liquor license, law requiring such bond being
repealed; Keller v. State, 12 Md. 326, 71 Am. Dec. 597, applying princ>ple
where repeal was made pending appeal from judgment, but not brought
before court until judgment afl&rmed; Exeter v. Stratham, 2 N. H. 103,
applying principle to repeal of law as to warning and residence of paupers ;
State V. Tombeckbee Bank, 1 Stew. 349, holding that repeal exonerates all
persons against whom final, judgment has not been entered before repeal;
i^eddle v. HoUinshead, 9 Serg. & R. 283, as to right of legislature which
grants stay of execution to withdraw indulgence.
Effect of repeal of criminal statute after judgment. Note, 1 Ann. Cas.
220.
6 Or. 203-205, 3 L. Ed. 199, STEWABT v. ANDERSON.
Maker of note may set off against assignee thereof note of assignor not
due at time of notice of assignment, and payable before first note.
Cited in Small v. Strong, 2 Ark. 202, construing Arkansas statute as
allowing setoff only of debts mutually subsisting between plaintiff and
defendant; Triplet v. Bradley, 6 T. B. Mon. 355, allowing as setoff note
assigned to defendant on intermediate assignor while latter owned note
441 MARINE INSUEANCE CO. v. HQDGSON. 6 Cr. 206-221
sued upon; Smith v. Mo8by> 9 Heisk. 505, holding that in order to offset
certificate of deposit against ^demand of bank's receiver upon note of
defendant, latter must prove possession of certificate before filing of peti-
tion in insolvency; Stebbins v. Bruce, 80 Va. 398, holding that one sued
by assignees of his bond may offset against it' debts owing him by assignor
before notice to defendant of assig^nment.
Distinguished in Greene v. Darling, 5 Mason, 206, 215, Fed. Cas. 5765,'
showing thaf the principle is limited by fact that it is based upon con-
struction of local statute; Somerville v. Brown, 5 Gill. 413, and refused
adherence because of differences in law merchant as to negotiable instru-
ments; Bradley v. Smith's Sons, 98 Mich. 453, 39 Am. St Rep. 568, 57
N*. W. 577, as not applicable whdre obligation against which setoff is
claimed was not due when assigned, being to pay money to be earned in
the fature; Feazle v. Dillard, 5 Leigh, 35, holding that principle stated in
principal case does not preclude equity from allowing as setoff, bond not
due when assigned bond is due. ^
Setoff against assignee of commercial paper, (of claim against assignor.
Note, 23 L. B. A. 326.
Effect of immaturity of claim at time of insolvenoy on right of setoff.
Note, 17 L. B. A. 460. *
6 Or. 20e-221, 3 t.. Ed. 200, BCABIKE INHUBAKCB OO. ▼. H0D060N; s. c.,
7 Or. 332, 3 I.. Ed. 362.
Befosal to recelTe additional plea, to amend one already filed, or to grant
new trial or continuance, is not reviewable by writ of error.
Approved in Loeb v. Eastman Kodak Co., 183 Fed. 710, 106 C. C. A. 142,
there is no abuse of discretion in permitting defendant to withdraw plea
and file demurrer; Missouri etc. Ry. Co. v. Elliott, 102 Fed. 99, and Kerr-
Murray Mfg. Co. V. Hess, 98 Fed. 57, both applying rule to continuance; *
United States v. Wood, 1 McAr. (D. C.) 244, holding decision of justice
refusing new trial not proper subject for review at general term; Spencer
V. Lapsley, 20 How. 267, 15 L. Ed. 904, appl>^ng principle to refusal to
allow plea in abatement; Sparrow v.- Strong, 3 Wall. 105, 18 L. Ed. 60,
refusing to review refus^ of new trial, but assuming jurisdiction on
another ground ; Embry v. Palmer, 107 U. S. 17, 18, 27 L. Ed. 351, 2 Sup.
Ct. 37, State v. Hunt, 4 La. Ann. 439, where new trial on ground of newly
discovered evidence ^as refused; Anderson v. State, 5 Har. & J. 175,
Albert ^f. Hart, 44 N. J. L. 368, refusing to review refusal of new trial,
unless lower court had exceeded jurisdiction or assumed unwarranted
powers; ttms v. Hudley, 6 How. 6, 12 L. Ed. 321, overruling exceptioii to
refusal to continue <}ase to another term ; Davis v. Patrick, 57 Fed. 913, 12
U. 8. App. 629, refusing to review refusal of continuance; Gladden v.
Florida, 12 Fla. 571, holding similarly, unless discretion is arbitrarily or
oppressively exercised ; Sealy v. State, 1 Ga. 215, 44 Am. Dec. 642 , State *
V. Brette, 6 La. Ann. 660, holding that in criminal case, appellate court
cannot review snch discretion except as to matters of law submitted by
bill of exceptions or assignment of error; State v. Muldoon, 9 La. Ann.
6 Cr. 206-221 NOTES ON U. S. REPORTS. 442
I
26, refusing to review such refusal in criminal case; Babeock v. Scott, 1
How. (Miss.) 101, holding similarly in civil case; Eamshaw v. United
States, 146 U. S. 68, 36 L. Ed. .880, 13 Snp. Ct. 16, holding discretionary
action of persoi^s appointed to reappraise imported goods final ; as to allow-
ance of amendments in Buchanan y. Trotter, 4 Fed. Cas. 539, allowing
amendment where justice required and no laches of defendant was shown;
Mahone v. Williams, 39 Ala. 212, holding irreviewable, imposition of terms
upon allowance of amendment to pleadings by trial court ; Fuller v. Hamp-
ton, 5 Conn. 425, refusing to notice allegation on writ of error that com-
plaint below was improperly amended ; EUicott v. Eustace, 6 Md. 508, Hen-
derson ▼. Mamer, 5 How. (Miss.) 538, Bruch v. Caxter, 32 N. J. L. 558, and
Davis v. Township of Delaware, 42 N."J. L. 517, nolding, similarly, Where
refusal was of amendment to lower court's records; Hicks v. Lawson, 39
Ala. 94, refusing to review action of trial court in overruling second motion
to suppress deposition; Doane v. Cummins, U Conn. 158, applying rule
as to time and order of admitting testimony in trial of cause; Ringgold's
Case, 1 Bland Ch. 9, discussing right of appeal both in law and equity;
Dibble v. Rogers, 2 Mich. 407, refusing to review order of Circuit Court
remanding cause to County Court for new trial; Romaine v. Norris, 8
N. J. L. 82, holding that whether motion for nonsuit will be heard after
regular time is discretionary with trial court; Clason v. Shotwell, 12
Johns. 50, holding that Court of Errors may on writ of error review action
of Supreme Court in awarding re-restitution in forcible entry and detainer.
Distinguished in Fuller v. State, 1 Blackf. 64, holding that in some cases
appellate court may review such discretion; Vanblaricum v. Ward, 1
Blackf. 50, reversing judgment below for error in refusing continuant;
Broussard v. Trahan's Heirs, 4 Mart. (0. S.) 501, afi&rming that Supreme
Court may relieve from improper denial of continuance in District Court ;
Carr v. Dawes, 46 Mo. App. 601, holding illegal, arbitrary or oppressive
exercise pf discretion reviewable; Gilliland v. Rappleyea, 15 N. J. L. 143,
allowing review of action of lower court where, having non prossed plain-
tiff out of court, it recurred to verdict previously set aside and entered
judgment thereon against him ; Welch v. County Court, 29 IV. Va. 68, 1
S. E. 340, distinguishing between pure discretion, which is not reviewable,
and sound legal discretion, which is, and reviewing refusal of certiorari;
Ordroneaux v. Prady, 6 Serg. & R. 512, Clymer v. Thomas, 7 Serg. & R.
180, Burk V. Huber, 2 Watts, 312, and Fowler v. Colton, 1 Finn. 337, all
following rule.
Inferior court, after remand, may receive additional pleas, or allow amend,
ments, though appellate court held such pleas bad on demurrer.
" Approved in Rio Grande Dam & Irr. Co. v. United Sjkates, 215 U. S. 275,
54 L. Ed. 193, 30 Sup. Ct. 97, permitting Uling of supplemental bUl where
facts alleged therein grew out of same transaction; Hartley v. Lapidus &
llolub Co., 216 Fed. 961, 132 C. C. A. 336, refusal to permit filing of reply
after trial commenced within discretion of court ; Qarland v. Davis, 4 How.
154, 11 L. Ed. 918, remanding ca^e so that pleadings may be amended;
Campbell v. Read, 2 Wall. 198, 17 L. Ed. 842, reversing judgment and al-
y
443 MARINE INSURANCE CO. v. HODGSON. 6 Cr. 206-221
lowing defendants to require proof of certain averments of complainti
though on appeal he had been refused right to object that plaintiff below
had not made such proof; In re Sanford etc. Tool Co., 160 U. S. 259, 40
L Ed« 417, 16 Sup. Ct. 294, holding that where case is left open, Circuit
Court might allow amendment to pleadings, to get at facts; Hart's Exrs.
Y. Smith, 20 Ma. 61, holding that after cause remanded. Circuit Court may
admit amendments, unless Supreme Court otherwise directs; Lane v. Mor-
ris, 8 Ga. 472, holding it improper after judgment on general demurrer to
allow demurrer to be withdrawn.
In action on policy, where defendant pleads covenants perf onned, he must
confine his evidence to his plea.
Cited in Garland v. Davis, 4 How. 148, 11 L. Ed. 915, to general rule
that evidence must be limited to plea; Cooper v. Watson, 10 Wend. 205,
holding where plea in suit for breach of warranty is non est factum, plain-
tiff need only prove execution of deed to recover.
Depogltion used in Ubel and condemnation In admiralty not evidence In
action on insurance policy.
Cited in Tappan v. Beardsley, 10 Wall. 436, 19 L, Bd. 976, holding that
admission of former proceeding to prove it does not justify use of dejwsi-
tions therein, against different parties not in privity with former parties.
Ib nttt upon policy, insurers may not contradict valuation given In policy.
Approved in 0 'Brien v. if orth River Ins. Co., 212 Fed. 106, 128 C. C. A.
618, parties may agree tiot only to value of tangible property but amount
of expected profits; British & Foreign Marine Ins. Co. v. Maldonado &
Co., 182 Fed. 752, 106 C. C. A. 122, requiring insurer of cargo to pay dam-
a^ to same and general average not exceeding agreed valuation, though
contributory value of cargo was greater; The Levingstone, 122 Fed. 281,
The St. Johns, 101 Fed. 475, and International Nav. C<j. v. Atlantic Mut.
Ins. Co., 100 Fed. 316, 323, all following rule of principal case: Insurance
Co. of North America v. Willey, 212 Mass. 77, 98 N. E. 677, holdinjr policy
to be open and not valued; Michael v. Prussian etc. Ins. Co., 171 N. Y.
33, 63 N. E. 812, construing policy insuring use and occupancy of grain
elevator; Milwaukee Mechanics' Ins. Co. v. Russell, 65 Ohio St. 268, 62
N. E. 339, holding refusal of insured to furnish plans for rebuilding is no
defense to action on policy; Griswold v. Union Mut. Ins. Co., 3 Blatchf.
233, Fed. Cas. 5840, following rule ; Alsop v. Commercial Ins. Co., 1 Sumn.
471, Fed. Cas. 262, holding that while fraudulent overvaluation vacates
policy, innocent overvaluation will not; Brooke V. Louisiana State Ins. Co.,
4 Mart. (N. S.) 643, holding that overvaluation may .be used to prove
frand; Whitney v. American Ins. Co., 3 Cow. 219, holding such value con-
clusive in absence of fraud or imx)osition ; Warner v. Brinton, 29 Fed. Cas.
235, holding that where will is in suit^ instructions given draftsman are not
admissible to explain it.
6 Cr. 221-225 NOTE^ ON U. S. REPORTS. 444
6 Cr. 221-225, 3 Zi. Sd. 205, SLACUM i. POMEBY.
indorsement of bill or note is separate, substantive contract, govemeA by
lex loci contractus.
Approved in Atwood v. Little Bonanza Quicksilver Co., 13 Cal. App. 596,
110 Pac. 344, note which fails tb show place of payment is payable at
domicile of maker; Mackintosh v. Gibbs, 79 N. J. L. 43, 74 Atl. 709, law
of New Jersey governs transfer by indorsement in that State of non-
negotiable note secured by mortgage of land in California ; Codman v. Ver-
mont & Canada R. R. Co., 16 Blackf. 176, Fed. Cas. 2935, holding that
such contract may be separate from that in note as to interest; De Hass
V. Dibert, 70 Fed. 230, 28 U. S. App. 559, holding that one who takes note
from payee without indorsement and indorses to third person is liable
on his indorsement; dissenting opinion in Tevis v. Young, 1 Met. (Ky.)
209; Heifer v. Alden, 3 Minn. 337, holding promissory note under seal
not negotiable instrument; Williams v. Wall, 60 Mo. 321, holding indorse-
ment in payment of gambling debt of valid draft, void under gaming act;
Seymouj v. Van Slyck, 8 Wend. 422, holding indorser of non-negotiable in-
strument liable as on guaranty; Poage v. State, 3 Ohio St. 233, holding
indorsement subject of forgery ; Lcidy v. Tammany/ 9 Watts, 357, holding
that blank indorser of non-negotiuble instrument is liable; Lawrence v.
Mabry, 2 Dev. 475, 21 Am. Dec. S47, holdii^ that indorser of bill in which
payee's name is admitted may be hold liable; Taylor v. Beck, 3 Rand. 328,
allowing indorser as competent witness to prove usurious consideration of
note in suit between holder and maker; Greathead v. Walton, 40 Conn.
236, holding indorsement of New York note in Connecticut governed by
law of latter State; Cox v. Adams, 2 Ga. 162, 168, holding that remedies
upon such contract are those of lex fori; Depau v. Humphreys, 8 Mart.
(N. S.) (La.) X6, holding that lex Ipci governs as to question of usury on
note; Trabue v. Short, 18 La. Ann. 258, applying rule where contract in-
dorsed in Kentucky was sued upon in Louisiana; Glidden v. Chamberlain,
167 Mass. 494, 57 >Ain. St. Rep. 484, 46 N. E. 104, holding New York law
OS to usury inadmissible evidence in suit upon Massachusetts indorsement
of New York note ; Phipps v. Harding, 70 Fed. 471, 34 U. S. App. 148, fol-
lowing rule; Dow v. Rowell, 12 N.- H. 51, but holding that indorsement
will not be allowed to change originaj liability of promisor; Aymar v.
Sheldon, 12 Wend. 443, 27 Am. Dec. 1^9, where bill drawn in French West
Indies was indorsed i^ New York; Case v. Heffner, 10 Ohio, 184, allowing
recovery of Ohio rate of interest in suit upon Ohio indorsement of New
York bill; Lebanon Bank v. Mangan, 28 Pa. St. 458, refusing to recognize
rights of indorsee of non-negotiable certificate of deposit as a^i^ainst cred-
itor of indorser attaching funds in bank before transfer; Trabue v. Short,
5 Cold. 296, following rul^; Cook v. Moffatt, 5 How. 315, 12 L. Ed. 168,
holding that discharge of debtor under insolvency laws of Maryland does
not affect New York contract ; Burrows v. Hannegan, 1 McLean, 316, Fed.
Cas. 2206, holding that lex fori governs as to remedy upon contract; Han-
drick V. Andrews, 9 Port. 27, where rule was applied as to question of
interest; Sherrill v. Hopkins, 1 Cow. 108, holding that rule applies, unless
/.
445
SLACUM V. POMERY.
6 Cr. 221-225
contrary intention of parties appears; Peck v. Hibbard, 26 Vt. 702, 62
Am. Dec. 607, applying rule to bill drawn in Canada payable in n^ particu-
lar place ; Nelson v. Fotterall, 7 Leigh, 202, holding that rule obtains, ex-
cept when contract is made with reference to laws of another State.'
Distinguished in Fitch v. Remer, 1 Flipp. 16, 1 Diss. 338, Fed. Cak 4836,
holding mortgage usurious in New York, where payable, could be enforced
in Michigan, where the mortgaged land was situated.
Conflict of laws as to measure of damages. Note, 91 Am. St. Rep.
719; 56 L. R. A. 308.
Conflict of laws as to negotiable paper. Note, 61 L. R. A. 315.
Damages recoverable by holder of dishonored foreign bill of exchange,
l^ote, Ann. Gas. 191SA, 812.
It Is not too late to aver on appeal fault in declaration wUcli sliouia
iavfi prevented rendition of judgment.
Approved in Nalle v. Oyster, 230 U. S. 177, 57 L. Ed. 1444, 33 Sup. Ct.
3043, exception unnecessary to review, in Court of Appeals of District
of Columbia, order sustaining demurrer to count in complaint; Griggs v.
Nadeau, 221 Fed. 383, 137 C. C. A. 189, reversing, without exception,
where complaint failed to state cause-of action; Marinette Sawmill Co. v.
Scofield, 174 Fed. 563, 98 C. C. A. 344, in action tried by stipulation to
court record without bill of exceptions, presents only question whether
pleadings support general findiifg and judgment; Phoenix Assur. Co. v.
Maryland etc. Co., 146 Fed. t602, where judgment, sought to be reviewed
on error, had for sole support verdict which was outside issues but in
direct conflict with complaint, court cotald not remit excess and affirm
same; Western Union Tel. Co. v. Sklar, l26 Fed. 302, applying rule where
declaration in action to recover damages for delay in delivery of telegram
was insufficient to support judgment; Warner v. Baker, 36 App. D. C. 510,
failure of declaration to state cause of action may be raised in first
instance on appeal; Mansfleld v. Winter, 10 App. D. C. 556, reversing,
without bill of exceptions, when complaint should show that action was
for less than jurisdictional amount; Chicago etc. Ry. Co. v. Woodworth,
1 Ind. Ter. 24, 35 S. W. 239, when complaint does not state cause of
action, defect is not cured by answer to merits; Nichols v. Commissioners
of Weston County, 13 Wyo. 7, 76 Pac. 682, where final judgment is not
supported by pleading or findings, it may be vacated on error, on record
without bill of exceptions, though no exception taken ; Pomeroy's Lessee v.
Bank, 1 Wall. 600, 17 L. Ed. 641, holding that writ of error brings up
whole record for review; Rogers v. Burlington, 3 Wall. 661, 18 L. Ed. 82,
holding bill of exceptions unnecessary to point out errors of record ; New
Orleans R. R. Co. v. Morgan, 10 Wall. 261, 19 L. Ed. 893, but holding
that error shotrtd, in general, appear from record, bill of exceptions,
agreed statement, demurrer or special verdict; Barth v. Clise, 12 Wall.
403, 20 L. Ed. 394, refusing reversal in favor of plaintiff for error where
tatter's case was inherently and fatally defective ; Insurance Co. v. Piaggio,
16 Wall. 386, 21 L. Ed. 859, noticing, from record, error in allowance of
/
6Cr,22ft-233 NOTES ON U. S. REPORTS. 446
insurance, interest and damages; Garland v. Davis, 4 How. 143, 11 L. BcL
913, noticing error in pleadings not raised by exceptions; Suydam ▼.
Williamson, 20 How. 433, 15 L. Ed. 980, holding that writ of error ad-
dresses itself to record as entirety; Baltimore etc. R. R. Co. v. Trostees,
91 U. 'S. 130, 28 L. Ed. 261, holding that error made to appear in any
legal manner is revisable; Storm v. United States, 94 U. S. 81, ii L. Ed.
44, but holding that error must appear either from bill or record; Cragin
V. Lovell, 109 U. S. 200, 27 L. Ed. 906, 3 Sup. Ct. 135, reversing default
judgment for error appearing of record; Kentucky Life etc. Ins. Co. v.
Hamilton, 63 Fed. 99, 22 U. S. App. 386, 548, reviewing sufficiency of
pleadings to warrant judgment; Board Commrs. v. Sherwood, 64 Fed. 110,
27 U. S. App. 458, as to when objection to admission of evidence raises
question as to sufficiency of complaint; World's Col. Expos. Co. v. Republic
of France, 91 Fed. 69, holding facts in record must show a cause of action ;
Murry v. Burris, 6 Dak. 180, 42 N. W. 29, holding that appellate court
may notice jurisdictional matters in record affecting validity of judgment;
Sedgwick v. Dawkins, 16 Fla. 201, noticing error i^ substituting motion
for new trial for motion in arrest of judgment after term; Blacklege v.
Benedick, 12 Ind. 389, holding objection to sufficiency of complaint good
on appeal; Read v. Wheeler, 2 Yerg. 56, reversing judgment on- instru-
ment where declaration contained nd averment of consideration; Knott v.
Hicks, 2 Humph. 163, reversing judgment where declaration on note con-
tained no averment of notice of dishonor to indorser sued; Gautier v.
Franklin, 1 Tex. 738, reversing judgment where record showed erroneous
failure of court below to notice plea of statute of limitations.
Right to question sufficiency of complaint for first time on ai^>eal.
Note, 8 Ann. Gas. 545. '
Federal court abould follow State court's construction of State statute.
Cited in Austen v. Miller, 5 McLean, 156, Fed. Cas. 661, where court
refused to follow such construction as to principles of common or
mercantile law.
In action of debt against indorser of bUl of exchange, declaration should
aver notice of protest for nonpayment.
Approved in Sykes v. Kruse, 49 Colo. 664, 113 Pac. 1015, presentment
and notice of dishonor essential under negotiable instruments act.
Making indorsement on instrument as forgery. Note^ Ann. Gas.
1915A, 1047.
6 Or. 226-233, 3 L. Ed. 207, VASSE V. SMITH.
Infancy is no complete bar to action of trover, though possession of goods
by Infant was under contract.
Approved in Ex parte McFerren, 184 Ala. 233, Ann. Gas. 1916B, 672,
47 L. B. A. (N. S.) 543, 63 Sputh. 162, permitting infant lessee, who has
received no benefit from leased premises, to recover money paid as rent;
Watson V. Wrightsman, 26 Ind. App. 440, 59 N. E. 1066, holding after
\
447 VASSE V. SMITH. ^ 6 Gr. 226-^33
appearance in person and by attorney infant cannot/ interpose defense of
minority; Slayton y. Barry, 175 Mass. 514, 78 Am. St. Rep. 511, 56 N. E.
575, holding seller of goods to infant on latter's misiTepresentation of age
cannot maintain trover; Almy v. Wilbur, 2 Wood. & M. 402, Fed. Gas. 256,
holding that conversion of goods rightfully held dates from demand and
refusal; Howe v. The Lexington, 12 Fed. Gas. 661, holding action on con-
tract proper, where carrier has not performed contract in bill of lading;
Oliver v. McGlellan, 2t^Ala. 678, allowing detinue againsl^ infant for goods
tortioasly held, though rightfully taken ; Flexner v. Dickerson, 72 Ala. 322,
.holding infancy good defense on obligation given for payment of rent, action
being commenced before expiration of term, and befo/e infant had come
of age ; Rice v. Boyer, 108 Ind. 475, 58 Am. Rep. 66, 9 N. E. 422, holding
infant liable ex delicto for injury by false representations ; Lewis v. Little-
field, 15 Me. 236, holding infancy no defense where defendant holding
stakes paid same to winner after notice from loser not to do so ; dissenting
opinion to preceding case, 1^. Me, 42, to point that conversion by infant
under mistake as to his rights does not render him liable ; Hall v. Gorcoran,
107 Mass. 255, 9 Am. Rep. S3, holding that person converting horse hired
under illegal contract is liable in tort; Woodman v. Hubbard, 25 N. H. 73,
57 Am. Dec. 315, and Ferguson v. Bobo, 54 Miss. 131, following rule;
Railway Go. v. Jones, 73 Miss. 122, 55 A^ St. Rep. 492, 19 South. 106, as
illustrating rule that mistake as to one's personal rights under law arising
from existing facts is one of fact; Gonway v. Reed, 66 Mo. 351, 27 Am.
Rep. 865, affirming allowance of damages to one shot by minor, acci-
dentally, but negligently; Wirt v. Dinan, 44 Mo. App. 592, allowing recov-
ery against husband and wife for wife's fraudulently inducing contract,
void by reason of her coverture, contract being for sale of stolen property;
Fetts y. Hall, 9 N. H. 443, 447, holding liable in tort, infant inducing con-
tract by fraudulent representations as to his age who disaffirmed contract
and refused to deliver goods; Garr v. Glough, 26 N. H. 294, 69 Am. Dec.
349, affirming that infant wishing to disaffirm horse trade must offer to
return horse received before he can sue for one traded; Gampbell v. Stakes,
2 Wend. 144, 19 Am. Dec. 668, and Freeman v. Boland, 14 R. I. 39, 51 Am.
Rep. 341, holding infant liable in trover who hires horse to drive to one
place and drives elsewhere or beyond; Towne v. Wiley, 23 Vt. 361, 56 Am.
Dec. 87, and Peigne v. Sutdiffe, 4 McG. 390, 17 Am. Dec. 758, holding infant
of age of discretion liable on case for embezzlement of goods intrlisted tc
him ; Green v. Sperry, 16 Vt. 393, 42 Am. Dec. 620, holding infant liable
in trover where he borrowed one's watch from latter's wife; Gotton v.
Sharpstein, 14 Wis. 230, 80 Am. Dec. 777, holding attorney liable for con-
verting property of client placed in his charge and to execution against his
body.
Distinguished in Wilt v. Walsh, 6 Watts, 12, holding that where sub-
stance of action \s contract, recovery cannot be had in tort, as where infant
hires horse to drive to one place, drives beyond and horse dies in conse-
qaence; West v. Moore, 14 Vt. 447, 39 Am. Dec. 286, holding infant not
liable for false and deceitful warranty on sale of horse; Eaton v. Hill,
\
6 Cr. 233-237 NOTES ON U. S. REPORTS. 448
50 N. H. 239, 9 Am. Rep. 192, excusing infant from liability where, from
lack of discretion, he unintentionally over-drove hired horse.
Liability of infant for tort connected with or growing out of contract.
Note, Ann. Gas. 1913A, 974.
Infant's liability for torts. Note, 57 L. R. A. 678, 681.
Bill of exceptions ought to state that evidence ^^tjA ottered, of facts upon
which opinion of court was prayed.
Cited in United States v. Morgan, 11 How. 158, 13 L. Ed. 645, holding
that though bill is imperfect, if court can ascertain, by inference, sub-*
stance of facts it will give opinion on points presented; Insurance Co. v.
Baring,^ 20 Wall. 162, 22 L. Ed. 251, holding that court need not grant
prayer for instructions not supported by evidence; United States v. Three
Hundred and Thirty-seven Cases of Wine, 1 Woods, 50, Fed. Cas. 16,506,
refusing to reverse judgment for failure to instruct where bill of excep-
tions did not conform to cited principle; Peden v. Moore, 1 Stew. & P. 81,
21 Am. Dec. 656, holding, however, that upon objection to instructions
given, court may review them as to legal correctness; Proctor v. Hart, 5
Fla. 469, holding that unless bill shows evidence upon which instructions
were intended, court will not adjudge them erroneous; Law v. Merrills, 6
Wend. 274; Dunlop v. Patterson,^ 5 Cow. 246, holding error not to lie for
failure to instruct upon evidence not brought to court's notice; Stafford v.
Walker, 12 Sei^. & R. 197, refusing reversal for immaterial error.
Miscellaneous. Cited in State v. Stark, 149 Iowa, 752, Ann. Cas. 1912D,
362, 129 N. W. 332, error to render judgment against minor without defense
by guardian.
6 Cr. 233-237, 3 Ik Ed. 209, OUBTISS v. OEOBaETOWN ETC. TUBN-
PIKE OO.
Supreme Court has jurisdiction to review order of Circuit Court for Dis-
trict of Columbia, quashing an Inquisition.
^Approved in Winslow v. Baltimore etc. R. Co., 28 App. D. C. 138, court
of appeals may review order of Supreme Court of District confirming
award of appraisers in eminent domain; dissenting opinion in Kendall v.
United States, 12 Pet. 640, 9 L. Ed. 1227, favoring reversal of Circuit
Court's judgments for unauthorized issuance of mandamus; Kendall v.
United States^ 12 Pet. 619, 9 L. Ed. 1218, sustaining power of Circuit Court
for District of Columbia to mandamus public officer; Railroad Co. v.
Church, 19 Wall. 64, 22 L. Ed. 97, holding that writ of error lies from
Supreme Court to Circuit Court for District of Columbia; Ormsby v.
Webb, 134 U. S. 60, 83 L. Ed. 811, 10 Sup. Ct. 483, in case of order
of Circuit Court affirming order of Probate Court in admitting writing as
will.
Record by clerk of an Inquisition la merely mlnlaterlal act and of ItgeU
gives no validity to proceedings.
I
449 LODGE'S LESSEE v. LEE, 6 Cr. 237-238
Cited in Bauman v. Ross, 167 U. S. 593, 42 L. ^d. 289. 17 Sup. Ct.
983, holding that estimate of compensation under eminent domain pro-
ceedings is not required to be made by jury.
6 Cr. 237-238, S Ir. Ed. 210, LODGE'S LESSEE vl LEE.
Grant of idand by name in Potomac Elver, adding connes and distances
which do not include whole island, passes whole island.
Approved in Veve y Diaz v. Sanchez, 226 U. S. 239, 57 L. Ed. 203, 33
Sup. Ct. 36, holding mortgage of land in Porto Rico described by exterior
boundaries and quantity included after«acquired land embraced within such
boundaries ;Barksdale v. Barksdale, 92 'Miss. 178, 45 South. 618, grant of
all land bequeathed by uncle in G. county, known as Minter place, includes
remainder in uncle's devise not in Minter place, latter being erroneous de-
scription; Mays V. Morrell, 65 Or. 567, 132 Pac. 717, holding- description
of land as all land owned by certain person controls erroneous specific
description; Fentress v. Pocahontas Fowling Club, 108 Va. 159, 60 S. E.
634, holding that true boundary of tract of marsh-land was waters men-
tioned as surrounding it and not courses and distances; United States v.
Arredondo, 6 Pet. 839, 8 L. Ed. 565, construing Spanish grant of lands
in Florida; Sherwood v. Whiting, 54 Conn. 334, 1 Am. St. Rep. 119, 8
Atl. 82, holding that misdescription in deed does not affect it, so long as
property conveyed may be identified; Melvin v. Merrimack Locks & Canals,
5 Met. 29, 38 Am. Dec. 388, where conveyance of "estate called C. Farm,"
same as conveyed by M. to K., was held to pass entire farm, though con-
veyance mentioned did not; Slater v. Breese, 36 Mich. 82, holding additions
of untrue circumstances will not defeat otherwise satisfactory description ;
Rutherford v. Tracy, 48 Mo. 328, 8 Am. Rep. 106, where conveyance of
certain lot described by courses and distances, including less than whole
lot, was held to pass entire lot; Thomson v. Thomson, 115 Mo. 64, where
devise was of "land on which I now residej" with added courses and dis-/
tances, including less than whole tract ; in Ela v. Card, 2 N. H. 178, 9 Am;
Dec. 49, under similar facts to same effect ; Drew v. Drew, 28 N. H. 503,
512, holding that devise of homestead, all "upon which 1 now live, same
devised to me by my father," passes whole homestead, though part was
not so devised; Conover v. Wardell, 22 N. J. Eq. 502, holding that general
terms of description, preceded by metes and bounds, are subordinate
thereto; Jones v. Smith, 73 N. Y. 210, holding that less certain general de-
scription is controlled by more certain particular description following:
Trapier v. Wilson, 2 McC. 197, where grant under facts similar to those
in principal case was held to pass entire island.
Distinguished in Conkling Min. Co. v. Silver King etc. Mines Co., 230
Fed. 557, courses and distances given in mineral patent cannot be con-
trolled by evidence of monuments not mentioned therein, under authority
of subsequent act of Congress ; Thompson v. Hill, 137 Ga. 3i2, 73 S. E. 642,
description by courses and distances held to control description by lot
number; Belden v. Seymour, 8 Conn. 31, where measurements were held
to give way to boundaries ; in dissenting opinion to Buchanan v. Stewart, 3
1—29
6 Cr. 238-263 NOTES ON U. S. REPORTS. 460
Har. & J. 338y which held that quantity as described should prevail over
courses and distances; Woodmap v. Lane, 7 N. H. 247, allowing grant of
homestead farm to be restricted and restrained by subsequent particular
description.
Restriction of nullification of grant of estate in deed by subsequent
clause or reference to another instrument. Note, AnxL Gaa. 1913B,
415.
6 Cr. 238-262» 8 L. Ed. 211, FINIiET ▼. LTMN.
If bond executed in pursuance of agreement depart thfrttiom, equitj
will reUeve.
Approved in Electric Goods Mfg. Co. v. Koltonski, 171 Fed. 553, relief
in equity cannot be granted on facts merely suggested in prayer; Thraves
V. Greenlees, 42 Okl. 774, 142 Pac. 1026, allegations of mistake held insuffi-
cient; Ivinson v. Button, 98 U. S. 83, 25 L. Ed. 68, ordering correction of
papers effecting dissolution of partnership, because founded on mistake;
Heam v. Equitable Safety Ins. Co., 4 Cliff. 198, Fed. Cas. 6300, reform-
ing insurance policy to conform to original agreement of parties.
Acceptance of obligation of one partner for firm debt as discharging
other partners. Note, Ann. Cas. 1915C, 1201.
Agreement of partners may make debt of individual partner flim dBht,
Cited in Davis v. Dodge, 30 Mich. 270, enforcing similar agreement where
dealings were between each firm and partners of other firm.
Oourt will remand cause to have account taken wbieh complainants ts
entitled to, but did not ask for.
Approved in May v. Le Claire, U Wall. 227, 20 L. Ed. 52, allowing re-
view where record is defective, but shows merits of case; Dupont de
^emours v. Vance, 19 How. 173, 16 L. Ed. 588, allowing relief which
record, though defective, shows to be proper; Alton v. Gilmanton, 2 N. H.
521, refusing client relief against waiver of notice by his attorney where
agreement of /waiver was part of court record.
6 Or. 252-263, 3 L. Ed. 215, DE BUTTS ▼. BAOON.
Defense of usury allowed in suit to foreclose mortgage.
Cited in dissenting opinion in Palmer v. Mead, 7 Conn. 159, maintaining
that defense that mortgage was in fraud of creditors should be available
on foreclosure, and that defense of title should be similarly available;
Cowles V. Woodruff, 8 Conn. 36, following rule; PheJps v. Pierson, 1 G.
Greene, 127, holding that demurrer will lie to bill to enforce contract
usurious on its face. Cited in Spaun v. Baltzell, 1 Fla. 355, 46 Am.
Dec. 356, holding that if creditor offers additional security for less sum
than is due, consideration is good.
Disapproved in Palmer v. Mead, 7 Conn. 153, holding that on bill to
foreclose, mortgagee's title may not be investigated.
451 SHEBHY v. MANDEVILLE AND JAMESSON. 6 Cr. 263-267
6 Or. 253-267, 3 Ik Ed. 215, BSEEHY ▼. MANDEVILXS AND JAMESSON.
Note of debtor or tbird person may, by agreement, be received, and
operate ae payment of debt.
Approved in San Juan v. St. John's Gas Co., 195 U. S. 621, 49 L. Ed.
304, 25 Sup. Ct. 108, agreement that pajnment in United States currency
should extinguish larger amount due under street lighting contract esti-
mated in Porto Rican currency, is binding where there was dispute as to
medium of payment; United States v. Sunday Creek Co., 194 Fed. 254,
earner which receives note from shipper in payment of freight violates
Elkins act; Mulligan v. HoUingsworth, 99 Fed. 219, holding that where
lease provides that lessee shall execute note for rent, execution of note
constitutes payment of rent; Brown v. Kem, 21 Wash. 216, 57 Pac. 800,
holding where judgment debtor pays portion of debt and gives security
for part of balance, there is sufficient consideration for satisfaction of
judgment; Grubbe v. Lahay, 156 Wis. 32, 33, Ann. Oas. 19150, 1199, 145
N. W. 209, acceptance of due-bill from one partner held, under circum-
stances, to be waiver of claim against other partner; Segrist v. Crabtree,
131 U. S. 289, 83 L. Ed. 126, 9 Sup. Ct. 688, holding, however, that evi-
dence that notes were taken absolutely as payment must be given ; Embrey
V. Jemison, 131 U. S. 347, 83 L, Ed. 176, 9 Sup. Ct. 779, holding that in
sait upon note plea of wager consideration is good ; In re Morrill, 2 Sawy.
358, Fed. Cas. 9821, holding that surety may pay debt for which he is
contingently liable by giving his note, if it is so accepted; Palmer v.
Priest, 1 Sprague, 514, Fed. Cas. 10,694, holding note of one debtor re-
ceived by creditor who receipts account, prima facie payment thereof;
United States v. Williams, 1 Ware, 180, Fed. Cas. 16,724, refusing to apply
principle to check received by collector of customs in payment of duty
until check is paid; Harris v. Lindsay, 4 Wash. 274, Fed. Cas. 6124, hold-
ing that giving of note raises no presumption of payment; Slocumb v.
Lurty, Hemp. 433, Fed. Cas. 12,949, requiring draft of third person to be
received unconditionally as payment to discharge debt; Wallace v. Agry^
4 Mason, 343, Fed. Cas. 12,360, holding that taking bill of exchange is at
most only prima facie evidence of payment; The Betsey and Rhoda, 2
Ware, 115, Fed. Cas. 1366, throwing upon debtor burden of proof that
note was intended as payment; In re Parker, 6 Sawy. 250, 11 Fed. 399,
Estate of Davis v. Desanque, 5 Whart. 537, 34 Am. Dec. 576, Lee's Admrs.
V. Fontaine, 10 Ala. 766, 44 Am. Dec. 508, allowing action against original
debtor after judgment upon invalid note received as payment; Pope v.
Tunstall, 2 Ark. 226, holding that agreement to receive note as payment
destroys right of action on original contract ; Costar v. Davies, 8 Ark. 217,.
46 Am. Dec. 312, holding action on account barred, though note received
in payment is unpaid ; Brugman v. McGuire, 32 Ark. 740, requiring special
agreement to constitute note payment; First National Bank v. Newton, 10
Colo. 171, 172, 14 Pac. 432, 433, holding presumption that note was not
received as payment not rebutted by receipt in full; Bill v. Porter, 9 Conn.
30, requiring special agreement to prove receipt as payment; May v. Gam-
ble, 14 Fla. 493, Salomon v. Pioneer Co-op. Co., 21 Fla. 379, as to cor-
6. Cr. 253-267 NOTES ON U. S. REPORTS. 452
xectness of pleading as to note received as payment; Wylly ▼. Collins, 9
Ga. 240, requiring that note be specially accepted as payment; Jewett v.
Pleak, 43 Ind. 370, holding note of third person good as pajnnent, if parties
so ap:ree; Sneed v. Wiester, 2 A. K. Marsh, 286, Johnson v. Weed, 9 Johns.
311, 6 Am. Dec. 279, Tomlin v. McChord 's Admr., 6 J. J. Marsh. 4, holding
that one covenant may be annihilated^ by later covenant variant therefrom
and in satisfaction thereof; Steamboat Charlotte v. Hammond, 9 Mo. 63,
43 Am. Dec. 539, requiring special agreement to extinguish original cause
of action; Wright v. First Crockeryware Co., 1 N. H. 281, 8 Am. Dec.
69, allowing such agreement that effect, whether note is of principal debtor
or third person; Page v. Pendergast, 2 N. H. 235, holding note payment of
award, agreement being shown; Elliott v. Sleeper, 2 N. H. 527, where new
note given for note secured by mortgage was held not to discharge mort-
gage; Morris Canal v. Van Vorst, 21 N. J. L. 119, 126, requiring that to
make note effective as payment, agreement must be pleaded and proved;
Arnold v. Camp, 12 Johns. 411, 7 Am. Dec. 329, where individual note
of partner was taken in exchange for partnership note and held to con-
stitute payment thereof; Day v. Leal, 14 Johns. 405, holding that unsatis-
fied judgment on collateral security is no bar to suit on original debt;
Boyd V. Hitchcock, 20 Johns. 79, 11 Am. Dec. 248, holding that agreement
may make note satisfaction of dobt greater than note's face value; Mul-
don V. Whitlock, 1 Cow. 306, 307, 13 Am. Dec. 537, holding original debtor
still liable unless he prove agreement to take note of another as payment ;
Booth V. Smith, 3 Wend. 68, affirming that proof of such agreement bars
action on debtor's note for which another's note was substituted; Way-
dell V. Luer, 5 Hill, 450, refusing to allow creditor, by agreement, to make
note of joint debtor satisfy precedent liability of all; s. c, 3 Denio, 414,
419, 420, allowing such effect to note given by partner after dissolution
of partnership, and accepted as payment of partnership • debt ; Brown v.
Scott, 51 Pa. St. 363, holding that whether note effects payment is one of
intention and for the jury; Blair v. Wilson, 28 Gratt. 174, Towhsends v.
Stevenson, 4 Rich. 67, holding that note of individual partner may merge
and extinguish claim against partnership; Lepham v. Barnes, 2 Vt. 216,
holding that third j>erson giving note, effectual as payment of debt, may
sue debtor for money paid to his use; Hutchins v. Olcutt, 4 Vt. 555, 24
Am. Dec. 639, holding that one taking note as payment for labor bestowed
upon article loses his lien thereon; Edgell v. Stanford, 6 Vt. 556, holding
that usurious and void note taken in exchange for valid note does not,
upon being declared void, render suit on original debt impossible; Torrey
v. Baxter, 13 Vt. 457, holding, however, that note will not amount to pay-
ment even with agreement, if it prove unproductive; Hard v. Burton, 62
Vt. 322, 20 Atl. 272, holding that unperformed agi*eement of one joint
debtor to settle account does not release other debtor, where agreement
was to accept performance; Poole v. Rice, 9 W. Va. 77, refusing to
allow agreement effect where secured by fraud; Feamster v. Withrow, 9
W. Va. 326, holding that taking new security from one joint debtor will
only release others where creditor so agrees ; Bowyer v. Knapp, 15 W. Va.
296, and Bantz v. Basnett, 12 W. Va. 792, 836, where, part of debt being
453 SHEEHY v. MANDEVILLE AND JAMESSON. 6 Cr. 263-267
paid before due, new note executed for residue, and old note surrendered,
latter was held extinguished as basis for action; Hoeflinger ▼. Wells, 47
Wis. 631, 632, 3 N. W. 591, 592, holding that partner's note will not extin-
guish partnership debt in absence of agreement, where such note was
taken for loan at time of loan; dissenting opinion in Winship ▼. United
States Bank, 5 Pet. 568, 8 L. Ed. 280, majority discussing responsibility
of partner for misappropriation of money received for notes discounted.
Distinguished in Whitbeck ▼. Van Ness, 11 Johns. 413, 414, 6 Am. Dec.
886, holding that note of third person taken by vendor from purchaser is
presumed payment and taken at vendor's risk; Tyson v. Pollock, 1 Peur.
& W. 381, holding that two firms jointly liable cannot, by each giving
draft npon third person, merge joint liability into several; Melntyre v.
Kennedy, 29 Pa. St. 462, upholding presumption that check of third per-
son taken from debtor is received as conditional payment ; Ward v. Motter,
2 Rob. (Va.) 564, 666, holding that one taking specialty of partner loses
remedy against later discovered dormant partner; United States Bank v.
Daniel, 12 Pet. 57, 9 L. Ed. 999, under the facts.
Accord and satisfaction by part payment. Note, 20 L. B. A. 794.
Payment by commercial paper. Note, 85 L. B. A. (N. S.) 14.
Commercial paper of partner as payment of firm debt not previously
assumed. Note, 15 L. B. A. (N. S.) 1021.
Judgment against one joint debtor sued severally is no bar to another in
action against both foimded on original joint promise.
Cited in dissenting opinion in United States v. Price, 9 How. 98, 18
L. Ed. 62, majority holding that after recovery against all obligors jointly
on joint and several bonds and subsequent decease of surety, his assets may
not be reached in hands of his administrator ; United States v. Cushman, 2
Sumn. 438, Fed. Cas. 14,908, holding that after joint judgment on joint and
several bond against obligors and sureties, there may be recovery out of
asset4S of deceased Surety, surviving obligors being insolvent; United
States V. Cushman 's Admr., 2 Sumn. 313, Fed. Cas. 14,907, where ques-
tion was not raised, suit being at law against administrator of joint judg-
ment debtor; Murray v. Ijovejoy, 2 Cliff. 199, Fed. Cas. 9963, holding un-
satisfied judgment against one of several tort-feasors no bar to action
against others; Sheldon v. Kibbe, 3 Conn. 218, 220, 8 Am. Dec. 179, 181,
holding similarly as to cotrespassers ; Swett v. Black, 1 Sprague, 583,
Fed. Cas. 13,690, where the doctrine is approved and followed; Sheldon
V. Kibbe, 3 Conn. 222, 8 Am. Dec. 183, holding execution against body of
judgment debtor not satisfaction of judgment to b^ action against his
cotrespassers ; Morgan v. Chester, 4 Conn. 389, holding unsatisfied judgment
against joint debtor not to bar action against others, obligation being joint
and several; Griffin v. Orman, 9 Fla. 52, holding judgment against two
of firm not judgment against third member not named in pleading; Klirk-
patrick v. Stingley, 2 Ind. 273, holding that on joint and several obligation,
judgment against all does not bar subsequent action against one, and
vice versa; Sherman v. Christy, 17 Iowa, 326, holding that confession of
6 Cr. 253-267 NOTES ON U. S. REPORTS. 454
judgment against firm by one member upon note signed by firm name, but
upon which other partner is alone liable, does not bar action against latter;
Sayre v. Coleman, 9 Dana, 174, holding judgment against several eo-
obligors not bar to action against one as to whom former action was abated
upon return of not found; Dennett v. Chick, 2 Me. 193, 11 Am. Dec. 61,
holdii^ unsatisfied judgment in another State against one joint promisor
no bar to suit against other; Farmer v. Stewart, 2 N. H. 99, to point that
in actions against joint debtors, judgment binds only those notified ; Town-
send y. Riddle, 2 N. H. 450, where judgment in favor of one joint and
several promisor held no bar to action against another unless founded upon
satisfaction or discharge of contract; Collins v. Lemasters, 1 Bail. 352,
21 Am. Dec. 473, holding that in action on joint bond, unsatisfied judg-
ment against one codefendant is no bar as to other; Treasurers v. Bates,
2 Bail. 382, applying rule where unsatisfied judgment against sheriff was
set up in bar of action against sheriff and sureties for same default ; Wat-
son V. Owens, 1 Rich. 113, following rule; Union Bank v. Hodges, 11 Rich.
483, 4^, holding judgment against two partners no bar to suit against all ;
Nichols V. Cheairs, 4 Sneed, 232, holding unsatisfied judgment against
one partner on note given for partnership obligation no bar to suit against
other and dormant partner; dissenting opinion in Ward v. Motter, 2 Rob.
(Va.) 554, 559, wherein holding of principal case is interpreted; Oleson
v. Merrihew, 45 Wis. 401, in support of holding that former judgment is
bar only when parties are same.
Distinguished in Van Ness y. Forrest, 8 Cr. 35, 8 L. Ed. 479« allowing
one member of c(Hnmercial company to sue another in his own name on
note given him by that other for use of company, though money, when
recovered, would belong to company, and noticing principal case as to
proper pleadings; Wood worth v. Spafford, 2 McLean, 173, Fed. Cas. 18,020,
holding that judgment against one joint obligation bars suit againat other
co-obligors; United States v. Price, 9 How. 93, IS L. Ed. 60, holding joint
judgment conclusive and bar to several suits on joint and several bond;
Scott V. Colmesnil, 7 J. J. Marsh. 419, 420, and cited as supporting holding
that judgment against one upon contract apparently sole does not bar sub-
sequent suit thereon in its true character of joint contract; Ward v. John-
son, 13 Mass. 151, 152, holding that judgment against one on joint promise
bars subsequent action thereon against both; Trafton v. United States,
3 Story, 649, 650, 651, Fed. Cas. 14,135, holding judgment against one of
two joint contractors bars suit against both; Lawrence v. Vernon, 3 Sumn.
25, Fed. Cas. 8146, but cited to point that where claim and parties are
same, former judgment is bar though forms ^f action are different; Fair-
child V. Holly, 10 Conn. 479, as questioned authority not involved in case
at bar; Palmer v. Gallup, 16 Conn. 566, where it is refused adherence and
question is raised whether judgment against three co-obligors, valid only
as to one, bars action against other two; BedeU's Admrs. and Heirs v.
Keethley, 5 T. B. Mon. 601, holding ^hat judgment against administrators
ux)on joint obligation of them and heirs, though unsatisfied, bars suit
against latter; dissenting opinion in Union Bank y. Hodges, 11 Rich. 726,
455 SHEEHY v* MANDEVILLE AND JAMESSON. 6 Cr. 263-267
731, 732, 735, 736, 737, majority holding jn^ment against two partners
no bar to suit against all. ^
Denied in Hutchinson v. Brown, 8 Mackey, D. C. 1^1, judgment accepted
against one joint promisor puts end to cause of action against other;
Mason v. Eldred, 6 Wall. 236, 237, 238, 18 L. Ed. 784, 785, holding that
judgment against one person on joint contract merges it and bars further
action thereon; Sedam v. Williams, 4 McLean, 62, Fed. Cas. 12,609, where
obligation was of partnership; United States v. Ames, 24 Fed. Cas. 783|
where action was held barred, though against dormant partner not dis-
covered until after judgment; Ferrall v. Bradford, 2 Fla. 615, 516, 50
Am. Dec. 296, 298, though former judgment was unsatisfied;, Wajin v. Mc-
Nulty, 2 Gilm. 359, 43 Am. Dec 60, where obligation was of partnership;
Taylor v. Qaypool, 5 Blackf. 558, obligation being joint note; Crosby v.
Jeroloman, 37 Ind. 274, where obligation was mortgage; Robertson v.
Smith, 18 Johns. 482, 483, 484, 9 Am. Dec. 232, 233, 234, 235, where former
judgment was unsatisfied; Pierce v. Kearney, 5 Hill, 94; Sloo y. Lea,
18 Ohio, 306, where obligation was of partnership; Smith v. Black, 9
Serg. & R. 143, 144, 11 Am. Dec. 687, 688, where action barred was against
dormant partner discovered after former judgment; Anderson v. Levan,
1 Watts & S. 339; Steams v. Aguirre, 6 CaL 180, holding one's elec-
tion of remedies cpnclusive uxx>n him when, holding joint and several
obligation, he sues either jointly pr, severally; Brown's Admr. ▼. Johnson,
13 Gratt. 650, holding that defeat of remedy against one joint obligor
on ground not personal to him bars recovery against all; How v. Kane,
2 Pinn. 551, 54 Am. Dec. 158, holding that while one who gets judgment
against ostensible partner cannot thereafter get personal judgment against
dormant partner, he may make him discover partnership assets in his
possession.
Judgment against partner or partnership obligation as bsr to suit
against copartner. Note, 8 Ann. Gas. 315.
Effect of judgment in action against part of joint or joint and sev-
eral obligors on liability of others. Note, 43 K B. A. 161, 1679
170, 175.
Proper parties defendanl. Note, 1 E. B. 0. 182.
Merger of cause of action in judgment. Note, 17 E. B. 0. 366.
Supreme Court will not, on remand, direct amendments In court below,
amendments being discretionary with latter court.
Approved in Hartley v. Lapidus & Holub Co., 216 Fed. 96, 132 C. C. A.
336, refusal of district court to permit filing of reply after commencement
of trial held not ground for reversal ; Chapmui v. Barney, 129 U. S. 681,
S2 L. Ed. 801, 9 Sup. Ct. 427, refusing to review amendment allowed by
lower court substituting new party plaintiff; State v. Raiford, 2 Dev. 215,
refusing to direct amendment in lower court; Fowler v* Colton, 1 Finn.
^37j refusing to review discretion of lower court.
6 Cr. 267-268 NOTES ON U. 6. REPORTS. 456
Conclusiveness of prior decisions on subsequent appeals. Note, 34
L. B. A. 334.
Efltect of transfer, without indorsement, of worthless check or note
to third person. Note, 10 K B. A* (N. S.) 549.
6 Cr. 267-268, 8 L. Ed. 220, SKILI£BN ▼. BffAY.
After cause sent back by mandate tf Circuit Court, it is too late to ques-
tion that court's jurisdiction.
Approved in United States v. Morse, 218 U. S. 506, 21 Ann. Oas. 782,
54 L. Ed. 1128, 31 Sup. Ct. 37, decree of Supreme Court of District of
Columbia •for .sale of infant's realty, made with jurisdiction of res and of
parties, not open to collateral attack; Riverdale Cotton Mills v. Alabama
etc. Mfg. Co., 198 U. S. 197, 49 L. Ed. 1016, 25 Sup. Ct. 629, Federal court
which has decreed 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; United States v. Ness, 230 Fed. 953, State court
has power to determine whether absence of certificate as to entry into
United States was fatal in naturalization proceeding; Messinger ▼. Ander-
son, 171 Fed. 790, 96 C. C. A. 445, every question decided by Circuit Court
of Appeals upon writ of error is conclusively settled for further proceed-
ings in same action; Looser v. Savings Deposit Bank etc. Co., 163 Fed.
214, 89 C. C. A. 642, judgment of Circuit Court of Appeals reversing judg-
ment of bankruptcy court on appeal, instead of on motion to revise, is
not nullity; Johnson v. Hunter, 127 Fed. 227, holding under Ark. act
of 1895, providing for sale of land for nonpayment of levee taxes, by
means of proceedings in Superior Court of record to foreclose lien, decree
forclosing such lien not subject to collateral attack on ground that record
of proceedings did not disclose all jurisdictional facts; White v. Bruce,
109 Fed. 364, holding orders in obedience to mandate cannot be reviewed
in court making the mandate; In re Columbia Real Estate Co., 101 Fed.
970, holding court may permit amicus cuHse to contest adjudication in
bankruptcy on ground of want of jurisdiction; Continental Trust Co. v.
Toledo etc. R. Co., 99 Fed. 178, holding Federal judge need not certify
to bill of exceptions in equity ; Tube City Min. etc. Co. v. Otterson, 16 Ariz.
312, 146 Pac. 206, refusing to set aside judgment foreclosing lien because
of bankruptcy proceedings against judgment debtor; Wattles v. Foster,
126 Tenn. 451, Ann. Oas. 1913E, 69, 150 S. W. 419, where Supreme Court
inadvertently assumed jurisdiction of appeal, its judgment was not void;
Butler V. Thompson, 52 W. Va. 314, 43 S. E. 175, holding on remand for
further proceedings according to written opinion lower court cannot permit
new pleadings ; McCormick v. Sullivant, 10 Wheat. 199, 6 L. Ed. 302,
holding that decrees of inferior United States courts in proceedings of
which jurisdiction is not alleged are erroneous, not void; Ex parte Wat-
kins, 3 Pet. 206, 7 L. Ed. 664, and McNutt v. Bland, 2 How. 22, 25, 11
L. Ed. 164, 165, holding that such decrees may be reversed by proper au-
457 SKILLERN v. MAY. 6 Cr. 267-268
fhority; Bank of tTnited States v. Moss, 6 How. 39, 40, 12 L. Ed. S85;
Kennedy v. Georgia State Bank, 8 How. 611, 12 L. Ed. 1219 ; Des Moines
Navigation Co. v. Iowa Homestead Co., 123 U. S. 557, SI L. Ed. 204, 8
Sap. Ct. 219, to same effect, though want of jurisdiction is apparent on
face of proceedings; Dowell v. Applegate, 152 U. S. 338, 88 L. Ed. 467,
14 Sup. Ct. 615, holding such decrees not liable to collateral attack ; Evers
V. Watson, 156 U. S. 533, 39 L. Ed. 522, 15 Sup. Ct. 432, and Brown v.
Noyes, 2 Wood. & M. 89, Fed. Cas. 2023, holding that such decrees cannot
be vacated on motion by same court; In re Eaton, 51 Fed. 804, applying
holding to order of injunction in Circuit Court; Ex parte Lennon, 64 Fed.
322, 22 U. S. App. 561, doubting if judgment of Circuit Court under such
circumstances may be collaterally attacked; Dexter ▼. Sayward, 84 Fed.
302, 304, supporting negative of last proposition, as to decree of Circuit
Court of Appeals; Pearce v. Winter Iron Works, 32 Ala. 72, where decree
was of District Court and lacked jurisdiction -owing to residence of par-
ties; Binney v. Chesapeake etc. Canal Co., 8 Pet. 219, 8 L. Ed. 928, affirm-
ing it to be duty of Supreme Court to affirm ji^dgments of Circuit Court
which in x)oint of law should be affirmed; Ex parte Story, 12 Pet. 343, 9
L. Ed. 1110, sustaining refusal of District Court to receive supplemental
pleadings after mandate and decree by Supreme Court ; Washington Bridge
Co. V. Stewart, 3 How. 425, 11 L. Ed. 664, holding that upon second appeal
it cannot be urged that Supreme Court had no jurisdiction of first appeal
upon which case was tried on merits and mandate issued to Circuit Court;
Bank of United States v. Moss, 6 How. 39, 40, 12 L. Ed. 885, holding that
judgments of Supreme Court cannpt be changed at subsequent term in
matters of law; Noonan v. Bradley, 12 WalL 129, 20 L. Ed. 281, and Cook
T. Burnley, 11 Wall. 674, 20 L. Ed. 85, refusing writ of error to review
action of lower court in carrying out mandate of Supreme Court; Tyler
v. Maguire, 17 WalL 283, 21 L. Ed. 588, affirming that lower court must
carry out mandate of Supreme Court and may not question jurisdictio^i
thereof where decision was on merits ; Williams v. Bruffy, 102 U. S. 255, 26
L Ed. 187, and Insurance Co. v. Boon, 95 U. S. 148, 24 L. Ed. 408, holding
that after expiration of term of rendition of judgment court below cannot
supply special findings of fact, execution having issued on judgment;
Gaines v. Ru^, 148 U. S. 241, 37 L. Ed. 486, 13 Sup. Ct. 616, issuing man-
damus to inferior court to execute mandate of Supreme Court without pro-
ceedings to construe its meaning and intent; Aspen Mining etc. Co., v.
Billings, 150 U. S. 37, 87 L. Ed. 988, 14 Sup. Ct. 6, refusing appeal to
Supreme Court from decree of Circuit Court entered according to mandate
of Circuit Court of Appeals; Oalpin v. Page, 1 Sawy. 340, Fed. Cas. 5205,
discussing validity of decree as to parties before court, where rendered
without objection in absence of essential party, unreversed and sale had
thereunder; Nesmith v. Calvert, 1 Wood. & M. 38, Fed. Cas. 10,123, holding
objection to jurisdiction too late when made after answers to merits,
replications and publication of evidence; Fisher v. Rutherford, 1 Bald. 193,
Fed. Cas. 4823, allowing amendment showing jurisdiction within reasonable
time after question is raised ; John Hanooek Mut. life Ins. Co. y. Manning,
7 Fed; 300, holding that Circuit Court, after mandate, from Supreme Court,
6 Cr. 267-268 NOTES ON U. S. REPORTS. 468
cannot entertain motion for new trial because of newly discovered evi-
dence; Holmes v. OregoA etc. R. R. Co., 7 Sawy. 392, 9 Fed. 237, affirming
that judgment based upon allegations showing jurisdiction cannot be col-
laterally attacked for want of ^risdiction ; Moore v. Town of Edgefield,
32 Fed. 501, holding impervious to collateral attack, judgment based- upon
jurisdiction of pers6n or 'subject matter; Kimberly v. Arms, 40 Fed. 551,
holding that Circuit Court may not review its decree in pursuance of
Supreme Court's mandate, without leave of latter court; Billings v. Aspen
Min. etc. Co., 53 Fed. 561, holding that Circuit Court can exercise no dis-
cretion concerning mandate of Supreme Court, but must simply execute
it; 'fhatcher v. Gottlieb, 59 Fed. 873, 19 U. S. App. 469, holding decision
on appeal, law of case upon subsequent new trial or appeal, evidence in
two cises being same; Davidson v. Dallas, 15 Cal. 83, and Dodge v. Gay-
lord, 53 Ind. 368, holding that on second appeal only proceedings had subse-
quent to first appeal may be reviewed ; Davenport v. Kleinschmidt, 8 Mont.
480, 20 Pac. 826; Foltz v. St. Louis & S. F. Ry. Co., 60 Fed. 318, 19
U. S. App. 576, discussing conclusiveness of final judgments on collateral
attack; Board of Commissioners v. Piatt, 79 Fed. 571, 49 U. S. App. 222,
holding judgment based upon jurisdiction not subject to collateral attack,
because obtained by fraud or collusion; United States v. Peralta, 27 Fed.
Cas. 497, allowing District Court to examine Supreme Court's affirmance
of former court's confirmation decree to ascertain if both judgments are
in accord with title papers upon which they are based ; Nims v. Sturde-
vant, 36 Ala. 641, refusing to allow question of jurisdiction to be raised
on second appeal; Fortenberry v. Fr^er, 5 Ark. 202, 39 Am. Dec 374,
holding that though error is apparent .on face of mandate of appellate
court, inferior court can only execute it; Cunningham v. Ashley, 13 Ark.
671, and Borden v. State, 11 Ark. 539, 54 Am. Dec. 230, considering judg-
ments and Probate Court when collaterally attacked for lack of jurisdiction ;
Ashley v. Cunningham, 16 Ark. 174, holding that after cause remanded by
Supreme Court for further proceedings, parties may not question correct-
ness of mandate; Roberts v. Haggart, 4 Dak. 212, 29 N. W. 656, holding
that rehearing cannot be granted after final judgment and adjournment
of term ; Wadham v. Gay, 83 111. 253, holding that where cause is remanded
with direction to dismiss bill for want of equity, it is error to allow com-
plainant to dismiss it without prejudice; Lynn v. Lynn, 160 111. 318, 43
N. E. 485, holding that where mandate and decree settle title, further pro-
ceedings in lower court questioning title are not allowable; Wright v.
Marsh, 2 G. Greene, 114, disallowing collateral attack of judgment, record
of which showed jurisdiction; Jameson v. Moseley, 4 T. B. Mon. 415,
holding mandate and decree upon appeal from interlocutory order final,
and not to be changed by either court; Ward v. Cozzens, 3 Mich. 258,
allowing protection to person acting under order of court of superior
jurisdiction erroneous but not void; Werz v. Werz, 11 Mo. App. 36, wherein
doctrine of presumptions in supx>ort of jurisdiction is considered at length ;
Morse v. Presby, 25 N. H. 302, to point that powers of District Court as
to bankruptcy are special and summary, and jurisdiction must be shown;
Milam Co. v. Robertson, 47 Tex. 238, following rule; Reniok v. Lading-
469 CHESAPEAKE INS. CO. v. STARK 6 Cr. 268-273
ton, 20 W. Va. 537, holding decision* on prior appeal, though erroneons,
res judicata on subsequent appeal; State v. Waupaca County Bank, 20
Wis. 643, holding that final judgment of court of last resort is conclusive
and binding, though court in similar cases had held that it had no juris-
diction; Poole y. Nizon, 19 Fed. Cas. 995, discussing bills of review.
Distinguished in Kingsbury v. Buckner, 134 U. S. 675, 33 L. Ed. 1057, 10
Sup. Ct 646, where principal case is held not to support position that
decree in pursuance of mandate may be attacked because infant party was
not before court where action was originally brought; Kenney v. Greer,
13 111. 444, 452, 54 Am. Dec. 442, holding that want of jurisdiction of United
States Circuit Court is presumed where pleadings fail to show jurisdiction ;
City of Hastings v. Foxworthy, 45 Neb. 692, 63 N. W. 960, maintaining
right of court to review its decision on former appeal, and overrule it
where plainly erroneous.
Effect of inadvertent assumption of jurisdiction by appellate court.
Note, Ann. Oas. 1913E, 70.
Conclusiveness of prior decisions on subsequent appeals. Note, 84
L.B,A.8S4.
6 Gr. 268-278^ 3 Zi. Ed. 220, OHESAPEAXE IKa 00. T. 8TABK.
Agent who effected insurance la competent to abandon vessel to under-
writen.
Cited in Cassedy v. Louisiana State Ins. Co., 6 Mart. (La.) (N. S.) 423,
where agent held policy.
Upon abandonment, property vests at once In underwxltexs. Deed is not
enentlal.
Approved in Mason v. Marine Ins. Co., 110 Fed. 455, holding damages
lor collision belong to insured; Copeland v. Phoenix Ins. Co., Woolw. 286,
Fed. Cas. 3210, where. equivocal words are held not to constitute abandon-
ment, and assent thereto, not to constitute acceptance; Mutual Safety Ins.
Co. V. Cargo of Brig George, 01c. 95, Fed. Cas. 9981, holding that upon
abandonment insurers succeed to insured's rights and may sue thereon in
their own names; Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 544, holding
that insurers having accepted abandonment, become liable for total loss;
Mellon V. Bucks, 5 Mart. (La.) (N. S.) 375, holding that, after abandon-
ment, insured cannot sue owners of vessel for failure to deliver abandoned
property; Northwestern Transportation Co. v. Thames & Mersey Ins. Co.,
59 Mich. 229, 26 N. W. 341, where suflficiency of written notice under policy
is passed upon, and it is held that insured cannot exercise rights antagon-
istic to those conveyed after acceptance of abandonment ; Radcliff v. Coster,
1 Hoff. Ch. 108, where right of indemnity under French treaty is held to
vest in insurers ux)on abandonment and payment; Cincinnati Ins. Co. v.
Dnffield, 6 Ohio St. 205, 67 Am. Dec. 341, holding abandonment to transfer
only interest covered by policy.
Distinguished in Clark v. Wilson, 103 Mass. 227, 4 Am. Bep. 638, holding
that even when abandonment is followed by payment of total loss, action
6 Cr. 268-273 NOTES ON U. S. EEPOETS. 460
may be brought in insured's name for conversion of property before aban-
donment.
Bevocatlon of abandomnent may result from subsequent acts of ownersbip
of insured.
Cited in Gloucester Ins. Co. v. Younger, 2 Curt. 337, Fed. Cas. 5487, hold-
ing that acceptance of abandonment may be implied from acts of insurer;
Catlett V. Pacific Ins. Co., 1 Wend. 574, to direct point, though holding that
when such acts were performed by insured as agent of insurer, revocation
is not effected.
Distinguished in Columbian Ins. Co. v. Ashby, 4 Pet. 144, 7 L. fid. 810,
holding that in some cases such acts may not amount to revocation.
Abandonment must be wltbia reasonable time, wUch is question for Jury
under directions of court.
Approved in Hamilton v. Phoenix Ins. Co.,* 61 Fed. 388, 391, holding
where question of reasonable time depends on many circumstances which
do not constantly recur, it is for the jury; Norton v. Lexington Fire etc.
Ins. Co., 16 111. 254, holding that right to abandon when lost by delay is
not revived by delay of insurers in paying or repairing; Haskins v. Hamil-
ton Mut. Ins. Co., 5 Gray, 438, where question whether insurers repaired
machinery within reasonable time was left to jury ; Brown v. Phoenix Ins.
Co., 4 Binn. 475, refusing to require abandonment within reasonable time
where impossible.
Criterion of time in cases of abandonment and total loss under marine
policy. Note, 1 E. R. 0. 140.
Venire de novo awarded where special verdict fails to find as to essential
facts.
Approved in Ward v. Gradin, 15 N. D: 657, 109 N. W. 60, insufficiency
of special verdict cannot be supplied by evidence ; Holt v. Van Eps, 1 Dak.
212, 46 N. W. 691, following rule ; Saltonstall v. Birtwell, 150 U. S. 419, 87
L. Ed. 1129, 14 Sup. Ct. 170, applying rule directly where action was to
recover import duties paid under protest; Ward v. Cochran, 150 U. S. 608,
87 L. Ed. 1198, 14 Sup. Ct. 233, holding judgment erroneous where based
upon such defective verdict; United States v. Sawyer, 1 Gall. 103, Fed.
Cas. 16,227, holding that Circuit Court upon reversal of District Court's
judgment may direct venire de novo triable at bar of Circuit Court; dis-
senting opinion in Prentice v. Zane's Admr., 8 How. 487, 12 L. Ed. 1167,
majority holding that upon waiver of defect in verdict, venire de novo not
awarded.
Distinguished in Prentice v. Zane's Admr., 8 How. 484, 12 L. Ed. 1166,
holding that upon waiver of defect in verdict by parties, venire de novo
will not be awarded.
What special verdict must contain. Note, 24 L. B. A. (N. S.) 18.
Abandonment, if legal, puts underwriters in place of assured.
Approved in The Livingstone, 122 Fed. 282, holding insurer is entitled to
salvage.
461 \ LIVINGSTON v. MARYLAND INS. CO. 6 Cr. 274-281
6 Or. 274^281, 3 Zi. Ed. 222, UVINOSTON v. MABYIiAND INS. 00.
Venire de novo awarded 'because of defective special verdict. . ^
Approved in dissenting opinion in Prentice v. Zane's Admr., 8 How. 487,
12 L. Ed. 1167, favoring venire de novo, because special verdict found evi-
dence, not facts; United States v. Sawyer, 1 Gall. 103, Fed. Cas. 16,227,
ordering venire de novo for defective special verdict, same to be tried by
jury at bar of Circuit Court.
Warranty of neutrality in insurance policy is satisfied if one of Joint
ownm of cargo, whose interest is insured, is i^eutral.
Cited in note to The May and Susan, 1 Wheat. 55, 4 L. Ed. '35, holding
similar warranty satisfied by residence of insured as merchant in neutral
country ; American Ins. Co. v. Dunham, 15 Wend. 17, holding that warranty
against illicit trade can only be broken by insured, not by master or
marines.
Liability of marine insurer for losses Arising out of war. Note, 5
B. B. C. 10, 14.
Effect of misrepresentation or concealment upon policy depends upon its
materiality, which is question for Jury.
Cited in Clark v. Manufacturers' Ins. Co., 8 How. 248, 250, 12 L. Ed.
1066, 1067, avoiding xx>licy for misrepresentation as to use of lamps in
picking-room of cotton factory; s. c, 2 Wood. & M. 492, Fed. Cas. 2829,
holding that material misrepresentation, whether from fraud or neglect,
avoids policy; NicoU v. American Ins. Co., 3 Wood. & M. 536, Fed. Cas.
10,259 ; 8. c, 7 Cr. 506, 3 L. Ed. 421, holding that best criterion as to mate-
riality of misrepresentation is whether or not it increases risk; Sayles v.
Northwestern Ins. Co., 2 Curt. 613, Fed. Cas. 12,422, holding that warranty
of force-pump in mill includes warranty of power to work it, but not that
fire may not disable it; Fidelity & Casualty Co. v. Alpert, 67 Fed. 463, 28
U. S. App. 393, where materiality of statements in application was in ques-
tion; New York Fireman's Ins. Co. v. Walden, 12 Johns. 516, 7 Am. Dec.
343, ordering venire de novo where lower court instructed jury "that repre-
sentations were material.
Proof of foreign laws not shown to be in writing may be by parol.
Approved in Eastern Building etc. Assn. v. William'son, 189 U. S. 125,
47 L. Ed. 739, 23 Sup. Ct. 529, holding construction of foreign laws is for
the court; McNeil v. Arnold, 17 Ark. 167, to same effect as -to customs,
usage and practice of another State; Franklin v. Twogood, 25 Iowa, 528,
96 Am. Dec. 78, holding adjudications of other States upon questions of
common law admissible in evidence ; Charlotte v. Chouteau, 25 Mo. 473,
holding that foreign written laws must be proven by copies; Hill v. Pack-
ard, 5 Wend. 389, where commercial law of Havana was in question and
query is raised whether foreign code is provable by parol; Dougherty v.
Snyder, 15 Serg. & R. 87, 16 Am. Dec. 524, allowing parol proof of Louisiana
law not alleged to be written; Bollinger v. Gallagher, 170 Pa. St. 94, 32
Atl. 573, ruling inadmissible, opinion of witness as to how courts of another
State would apply given law to given facts; Tunstall v. Pollard's Admr.,
6 Or. 281-^286 NOTfeS ON U. S. REPORTS. 462
11 Leigb, 28, upholding eourt's right to inquire into Engliflh law as to
administration of foreign assets.
Oral proof of foreign laws. Note, 25 L. S. A. 452.
6 Cr. 281-285, 3 Ii. Ed. 22^ HUDSON V. QUESTIEB.
Foreign decree of coDdemnatlon for breach of municipal regiilatl(»i8 cannot
be collaterally attacked for lack of jurisdiction*
Cited in Williams v. Armroyd, 7 Cr. 432, 3 L. Ed. 395, refusing to inter-
fere with unjust decree of French court, because co-ordinate courts can-
not review each other's decrees ; Rhode' Island v. Massachusetts, 12 Pet.
738, 9 L. Ed. 1266, holding that prize courts of admiralty jurisdiction are
strictly judicial and their decrees conclusive of prox)erty rights; The Rio
Grande, 23 Wall. 465, 23 L. Ed. 159, as to conclusiveness of admiralty de-
cree; In re Cooper, 143 U. S. 509, 36 L. Ed. 244, 12 Sup. Ct. 463, holding
that United States District Courts sitting in admiralty are courts of
superior jurisdiction and every intendment is in favor of their decrees:
Noble V. Union River Logging R. R. Co., 147 U. S. 174, 87 L. Ed. 127, 1^3
Sup. Ct. 274, as illustrating class of quasi-jurisdietional facts as to which
finding of court cannot be collaterally attacked; In re Lennon, 166 U. S.
553, 41 L. Ed. 1112, 17 Sup. Ct. 660, holding that jurisdictional averments
cannot be questioned on habeas corpus, except as to false recital, concern-
ing parties to collateral proceedings; The Invincible, 2 Gall. 40, Fed. Cas.
7054, holding that trial of prizes belongs exclusively to courts of country
of capture, and jurisdiction is not destroyed by recapture. Other courts
cannot interfere ; The Arabella and the Madeira, 2 Gall. 370, Fed. Cas. 501,
holding that prize courts of belligerents may adjudicate upon prize prop-
erty lying in neutral port; Bradstreet v. Neptune Ins. Co., 3 Sumn. 605,
Fed. Cas. 1793, refusing to recognize distinction between such foreign de-
cree and like one pronounced by Municipal Court in rem, concerning con-
clusiveness as to facts or title; The Trenton, 4 Fed. 662, holding sale of
vessel under Canadian decree to extinguish all liens thereon and vest full
title in purchaser; Reinaoh v. Atlantic & G. W. R. R. Co., 58 Fed. 43, as
illustrating class of quasi-jurisdictional facts as to which judgments can-
not be collaterally questioned ; In re McKibben, 16 Fed. Cas. 212, 12 Bank.
Reg. 101, and Page v. Lenox, 15 Johns. 174, raising query whether or not
prize court in belligerent country could proceed against prize lying within
territory of neutral power; Frances v. Ocean Ins. Co., 6 Cow. 425, apply-
ing holding to same point as to certain British trade and navigation laws ;
Abraham v. Plestoro, 3 Wend. 554, 20 Am. Dec. 746, dissenting opinion,
maintaining that British assignment in bankruptcy is effectual to trans-
fer to assignee personal property of bankrupt in latter's possession on high
seas.
Distinguished in Slocum v. Wheeler, 1 Conn. 439, 457, holding State
court competent to examine into United States admiralty court's jurisdic-
tion in particular case coming up also and later in State court.
Seizure of vessels outside territorial jurisdiction for violation of
municipal law. Note, 3 Ann. Gas. 811.
Jurisdiction over sea. Note, 46 L. R. A. 266.
463 SMITH V. STATE OF MARYLAND. 6 Cr. 286^07
Upon TtrretEtX in favor of plaintiff on bill of exceptioiis to instractions,
court below must award new trial. (
Cited in United States v. Sawyer, 1 Gall. 103, Fed. Caa. 16,227, main-
taining authority of Cironit Court to award venire de novo triable at bar
of court, upon reversal of judgment.
6 Gr. 286-807, 3 L. Ed. 225, SBOTH v. STATE OF IffABTIiAKD.
Conatmction of treaty ia drawn in queatlon for purpoae of Federal Juris-
diction where iasue as to title to land ia wbetber State statute of oonflscatlon
effected complete conflacation witbin meaning of treaty.
Cited in Martin v. Hunter, 1 Wheat. 359, 370, 4 L. Ed. Ill, 113, affirm-
ing nght of court on writ of error to examine decision of highest court of
State where is drawn in question treaty or statute of United States; note
to Matthews v. Zane, 7 Wheat. 208, 5 L. Ed. 436, upon direct point; dis-
senting opinion in Qill v. Oliver's Exrs., 11 How. 549, 18 L. Ed. 808, to
the contention that court might review, by writ of error, judgment of Mary-
land Court of Appeals, awarding money to claimant under Mexican treaty ;
Craig V. Missouri, 4 Pet. 429, 7 L. Ed. 910, holding that Supreme Court
may review judgment of Missouri Supreme Court involving constitution-
ality "of State law under United States Constitution; Crowell v. Randell,
10 Pet. 393, 9 L. Ed. 468, dismissing writ of error for want of jurisdiction
and reviewing cases construing twenty-fifth section of judiciary act.
Distinguished in Williams v. Oliver, 12 How. 124, 13 L. JGd. 921, directly
following Gill v. Oliver's Exrs., 11 How. 549, 13 L. Ed. 808, of which case
it was a branch, and dismissing case for want of jurisdiction.
What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. S. A. 532.
Time and manner of raising and deciding questions in State court to
obtain review in Federal Supreme Court. Note, 63 L. B. A. 51.
Conflacation acta of Maryland dlveated equitable intereata and vested them
in State without entry or office found.
Approved in Morris v. United States, 174 U. S. 231, 48 L. Ed. 958, 19 •
Sup. Ct. 649, applying rule in determining ownership of reclaimed lands
of Potomac ; Columbia Valley R. Co. v. Portland etc. Ry. Co., 162 Fed. 606,
•89 C. C. A. 361, holding act of 1906 forfeiting railroad right of way over
public lands effective at once without any judicial proceeding; State v.
King, 64 W. Va. 609, 63 S. E. 494, holding provision of State Constitution
forfeiting land for nonentry on tax books not to contravene Fourteenth
Amendment ; White River Club v. Wade, 100 Wis. 94, 76 N. W. 274, hold-
ing owner of both banks of navigable stiream has no exclusive right to fish
in stream; United States v. Repentigny, 5 Wall. 268, 18 L. Ed. 646, holding
legislative act directing appropriation and possession of land equivalent
to office found; Atlantic & Pac. R. R. Co. v. Mingus, 165 U. S. 431, 41
L. Ed. 778» 17 Sup. Ct. 352, holding that where United States grants land
on condition^ subsequent, right of re-entry for breach thereof may be exer-
cised by l^slation; Schenck v. Peay, 21 Fed. Cas. 683, upholding power
6 Cr. 307-324 NOTES ON U. S. REPORTS. 4L64
of United States to declare immediate forfeiture of land for nonpayment of
taxes^ to take effect without further proceedings; Kershaw v. Kelsey, 100
Mass. 574, 97 Am. D6c. 136, as supporting right of State to confiscate land
within its territory belonging ip subjects of enemy; Atherton v. Johnson,
2 N. H. 35) holding New Hampshire confiscation acts, passed during Revo-
lution, binding and valid ; Thompson v. Carr, 5 N. H. 515, holding that New
Hampshire confiscation act of 1778 vested in State, property of persons
named in act ; Heirs of Holliman v. Peebles, 1 Tex.- 709, affirming that no
proceeding of office found was necesfsary to revest in Mexico, lands granted
colonist and later abandoned by him; Willow River Club v. Wade, 76
N. W. 274, holding title to public lands vested in State on breaking out of
Revolution.
Distinguished in Society for Propagation of Gospel v. New Haven, 8
Wheat. 492, 5 L. Ed. 669, holding that property of British corporations in
this country was protected by treaty of 1783, and title confirmed by tlytt of
1794, and could not be forfeited by intermediate legislation.
6 Or. 307-324, 8 I«. Ed. 232, DUBOXTSSEAU ▼. UNITED STATES.
Appellate Jurisdiction of Supreme Court is given by C<Mi8tltiition and
limited by Congress in Jndiciaxy act, afflrmatiye description in wliich implies
negation of cases not enumerated.
Approved in Ex parte Moran, 144 Fed. 689, determining jurisdiction of
Circuit Court of Appeals to issue habeas corpus where one is imprisoned
for capital crime on conviction by Oklahoma court; United States v. Mar
Ying Yuen, 123 Fed. 160, holding government cannot appeal from order of
discharge in Chinese landing case; State v. Crenshaw, 138 Ala. 509, 35
South. 456, State cannot appeal from judgment in proceedings to determine
right to register as elector; Jung v. Myer, 11 N. M. 388, 68 Pac. 936, Laws
1901, c. 82, authorizing appeals to Supreme Court from interlocutory orders
affecting substantial rights is void; United States v. Sampson, 19 App.
D. C. 438, judgment of Supreme Court of District in prize case appealable
directly to Supreme Court of United States; United States v. O'Neal, 10
App. D. C. 244, no appeal lies from judgment following jury trial in Jus-
tice Court in District; District of Columbia v. Prospect Hill Cemetery, 5
App. D. C. 511, motion to vacate order of Supreme Court of District con-
firming report of commissioners in condemnation proceedings is not appeal-
able; State v. Olsen, 39 Utah, 180, 115 Pac. 969, no appeal given from
judgment of District Court in case appealed to it from Municipal Court;
dissenting opinion in Ex parte France, 176 Ind. 127, 95 N. E. 535, majority
holding that legislature could not deprive Supreme Court of part of its
appellate jurisdiction by making decisions of appellate court final ; dissent-
ing opinion in State v. Thayer, 158 Mo. 61, 65, 58 S. W. 17, 19, majority
holding appeal lies from conviction in Criminal Court of Jackson county
on information for misdemeanor; Ex parte Crane, 5 Pet. 203, 204, 205,
8 L. Ed. 97, 98, holding Supreme Court, may mandamus Circuit Court to
sign bill of exceptions in case "before it; In re Kaine, 14 How. 120, 14
L. Ed. S52> refusing to grant habeas corpus to inquire into commitment of
prisoner by commissioner under treaty of 1842 between Great Britain and
465 DUROUSSEAU v. UNITED STATES. 6 Cr. 307-324
United States; Ex parte Vallandingham, 1 Wall. 251, 17 L. Ed. 59S, refus-
ing to review by certiorari proceedings of military commission of United
States army; Daniels v. Railroad Co., 3 Wall. 254, 18 L. Ed. 225, refusing,
to review questions of mixed law and fact certified to it upon disagreement
of circuit judges by consent of parties; dissenting opinion in United^ States
V. Circuit Judge, 3 Wall. 678, 18 L. Ed. 114, majority holding that appeal
lay from decree in Circuit Court in proceeding settling land claims in Cali-
fornia and transferred to it from District Court ; dissenting opinion in Ex
parte Bradley, 7 Wall. 384, 19 L. Ed. 221, holding that mandamus would
issue from Circuit Court to Supreme Court of District of Columbia to re-
store attorney disbarred without jurisdiction; Merrill v. Petty, 16 Wall.
346, 21 L. Ed. 501, refusing to entertain appeal on account of defect as
to jurisdictional amount ; dissenting opinion in Ex parte Lange, 18 Wall.
185, 205, 21 L. Ed. 882, 888, holding that court may, by habeas corpus, re-
view decision of Circuit Court imprisoning person in criminal trial where
question of jurisdiction was fairly raised by petition ; Ex parte McCardle, 7
WaU. 513, 19 L. Ed. 265, following rule ; Baker v. Biddle, 1 Bald. 406, Fed.
Cas. 764, dismissing case for want of jurisdiction under judiciary act;
Mnrdock v. City of Memphis, 20 Wall. 620,^22 L. Ed. 439, discussing effect
of act of February 6, 1867, second section, as amendinent of judiciary act
of 1789; United States v. Young, 94 U. S. 259, 24 L. Ed. 153, denying juris-
diction of court to use writ of certiorari to compel Court of Claims to send
to it proceedings in latter cou^ had in case subsequent to appeal thereof
to Supreme Court; Raibroad Co. v. Grant, 98 U. S. 401, 251 L. Ed. 232,
holding that party to suit has no vested right to an appeal, and that repeal
of law conferring appellate jurisdiction, unless containing saving clause
as to pending cases, brings all such within it ; dissenting opinion in Tennes-
see V. Davis, 100 U. S. 290, 25 L. Ed. 659, where case held that case could
be transferred to Federal courts where charge of murder was placed against
Federal officer, crime being committed in discharge of his duties; The
Francis Wright, 105 U. S. 385, 26 L. Ed. 1101, declaring constitutional
chapter 77, act of February 16, 1875, limiting appellate jurisdiction of
court in admiralty cases to questions of law arising on record; Kationail
Bank of Baltimore v. Peters, 144 U. S. 572, 36 L. Ed. 546, 12 Sup. Ct. 768,
dismissing appeal as filed too late under statute repealing former ones as
to certain appeals, saving those taken before given 'date ; American Con-
Btruction Co. v. Jacksonville Ry. Co., 148 U. S. 378, 37 L. Ed. 489, 13 Sup.
Ct. 761, denying mandamus to Circuit Court of Appeals and to Circuit
Court and refusing to review decree of former by certiorari ; United States
V. American BeU Tel. Co., 159 U. S. 549, 40 L. Ed. 256, 16 Sup. Ct. 70, hold-
ing that court has appellate jurisdiction of judgment of Circuit Court of
Appeals in suit brought by United States to cancel patent of invention;
United States v. Plumer, 3 Cliff. 26, Fed. Cas. 16,055, holding that writ of
error does not lie from Supreme to Circuit Court in criminal case ; Pueblo
Case, 4 Sawy. 579, Fed. Cas. 12,316, refusing to allow appeal from decision
of Circuit Court upon appeal from decision of commission appointed to
settle California land titles ; In re Cilley, 58 Fed. 988, denying to Circuit.
1—80
6 Cr. 307-n324 NOTES ON U. S. REPORTS. 466
Court appellate jurisdiction in probate matters; in dissenting opinion to
Ex parte Banks, 28 Ala. 45, 46, where court held that granting the change
of venue was discretionary with trial judge and not revisable by mandamus
or otherwise; Thompson v. Lea, 28 Ala. 459, overruling motion to dismiss
appeal^or lack of statutory bond and security, because latter were waived
by joinder in error; also in dissenting opinion to same, pp. 46|4, 466;
Sanders v. Cabaniss, 43 Ala. 190, refusing to remand cause penoing an
appeal in Supreme Court; Warner v. Steamer Uncle Sam, 9 Cal. 736, hold-
ing, however, that failure by Congress to provide for appeal from State
courts in civil admiralty cases cannot affect question as to their original
concurrent jurisdiction under United Sti^tes Constitution; Farrell v. Win-
chester Ave. R. R. Co., 61 Conn. 130, 23 Atl. 758, holding that corporation
can only exercise powers enumerated in charter; Harris Mfg. Co. v. Walsh,
2 Dak. Ter. 43, 3 N. W. 309, applying rule to statutory authority conferred
upon Supreme Court of territory to review judgments of District Courts;
Fleming v. Clark, 12 Allen, 195, refusing to discharge, on habeas corpus,
prisoner convicted of crime in Superior Court, though writ of error has
issued from single justice of Supreme Court of United States to Superior
Court; Jim v. State, 3 Mo. 149^ holding that court cannot refuse to enter-
tain matter within jurisdiction conferred upon it by Constitution or stat-
ute; Yarbrough v. State, 2 Tex. 527, dismissing appeal from judgment of
inferior court refusing bail to prisoner before court on habeas corpus;
State V. Dougherty, 5 Tex. 3, 4, dismissing, as outside court's jurisdiction,
appeal in criminal case in behalf of State; Irrigation Co. v. Canal Co., 14
Utah, 163, 167, 46 Pac. 826, 827, refusing to entertain appeal from order
of District Court granting injunction pendente lite, where Constitution
gave appeal to Supreme Court from final judgments of District Court;
Eastman v. Gurrey, 14 Utah, 171, 46 Pac. 828, refusing for same reason to
entertain appeal from decree of latter court setting aside judgment in eject-
ment and ordering new trial; Bamett v. Meredith, 10 Gratt. 655, holding
that under Constitution and statutes, Supreme Court cannot mandamus
Circuit Court to try cause before it.
Distinguished in Gresham v. Ewell, 84 Va. 788, 6 S'. E. 136, holding that
Virginia Constitution does not ex proprio vigorc confer jurisdiction upon
Supreme Court, but empowers legislature to do so, and in absence of legis-
lative authority, court may not issue writ of prohibition to County Court;
dissenting opinion in Ex parte Crane, 5 Pet. 219, 8 L. Ed. 103, majority
holding Supreme Court may mandamus Circuit Court to sign bill of excep-
tions; Curless v. Watson, 180 Ind. 90, 94, 102 N. E. 499, 500, legislature
could not deprive Supreme Court of part of its appellate jurisdiction by
making decisions of appellate court final ; Finlen v. Heinse, 27 Mont. 127,
69 Pac. 829, 70 Pac. 518, construing State constitutional provision relative
to Supreme Court's appellate jurisdiction.
Statute should be construed according to its spirit and Intention, even it
some implication be necessary.
Approved in United States v. American Surety Co., 200 U. S. 203, 50
L. £d. 440, 26 Sup. Ct. 168, labor and materials used in prosecution of
467 DUROUSSEAU v. UNITED STATES. 6 Cr. 307-324
public worky whether famished under contract directly to contractor or to
subcontractor, are within obligation of bond given pinrsuant to 28 Stat.
278, c. 280; The Pliquete Habana, 175 U. S. 685, 44 L. Ed. 823, 20 Sup. Ot.
294, construing judiciary act of 1891; United States v. Wells-Fargo Ex-
press Co., 161 J'ed. 611, holding issuance of franks by express company, to
be "discrimination"; Power v. Hamilton, 22 N. D. 182, 132 N. W. 666,
holding requirement of affidavit of registered voter not to apply where,
through official oversight, there was no registration; Allen v. Oliver, 31
Okl. 358, 121 Pac. 226, holding lands allotted to Indian tribe not alienable
until five years after issuance of patent; Ex parte Hunnicutt, 7 Okl. Cr.
223, 123 Pac. 184, and Ex parte Whitehouse, 3 Okl. Cr. 106, 104 Pac. 375,
botlt ignoring punctuation in order to arrive at true construction of stat-
ute; dissenting opinion in United States v. Midwest Oil Co., 236 U. S. 510,
59 L Ed. 695, 35 Sup. Ct. 309, majority upholding order of President with-
drawing certain public lands from entry, in spite of subsequent act of Con-
gress authorizing such withdrawal; Baring v. Erdman, 2 Fed. Cas. 788,
applying rule in constriiing Pennsylvania road and canal statutes, though
result is apparently contrary to letter of statute; Montgomery etc. Ry. Co.
V. Sayre, 72 Ala. 450, construing statute giving appeal from assessment of
damages by commissioners' where land is condemned for railroad right of
way; Hedrick v. Kramer, 43 Ind. 365, holding that under act providing
for organization of Superior Courts, same rules as to costs prevail therein
as obtain in Circuit Court; Roland Park Co. v. State, 80 Md. 451, 31 Atl.
299, construing statute imposing bonus tax on new corporations; Brien v.
Williamson, 7 How. (Miss.) 19, construing State Constitution and legisla-
tion as avoiding contracts in pursuance of slave traffic, because opposed
to public policy ; Smiley v. Sampson, 1 Neb. 90, construing statute concern-
ing filing statement of intention to pre-empt land; Tafoza v. Garcia, 1
N. M. 483, holding that Revised Statutes of Territory, adopted 1864-65,
repeal by implication all previous statutes omitted therefrom; Vermont
Loan & T. Co. v. Whithed, 2 N. D. 101, construing statute as excepting
transactions between building and loan associations and their stockholders
from the operation of general usury law; State v. Delesdenier, 7 Tex. 106,
construing statute establishing general land office as repealing all previous
acts relating thereto ; Gas Co. v. Wheeling, 8 W. Va. 358, construing charter
of Wheeling Gas Co., especially as to its provisions for purchase of prop-
erties of company by city of Wheeling.
Statute eBtabUahing mstrlct Court of New Orleans constmed as subject-
ing dedsioiis of such court to same supervision by Supreme Court as District
Court of Kentucky decisions.
Approved in W51der*s SS. Co. v. Low, 112 Ped. 164, holding admiralty
decree of Hawaiian District Court is appealable to Circuit Court of Appeals ;
In re Cooper, 143 U. S. 512, 36 L. Ed. 245, 12 Sup. Ct. 464, applying rule
to statute giving Supreme Court jurisdiction of appeals from Alaska Dis-
trict Court, holding such jurisdiction to apply to decrees of latter court in
admiralty.
I
• \
6 Cr. a24r^0 NOTES ON U. S. REPORTS. 468
6 Or. 324-327, 3 L. Ed. 237, TTliER ▼. TUEL.
Assignee of t^a^ of patent right cannot sue at law for violation tliereof.
Cited in Moore v. Marsh, 7 Wall. 521, 19 L. Ed. 39, allowing action on
case by original owner of patent for infringement committed during time
he was owner, though he subsequently assigned half intefest; Potter v.
Holland, 4 Blatchf. 210, Fed. Cas. 11,329, defining assignment, assignee,
grant and grantee as used in patent law of July 4, 1836 ; Bryan v. Stevens,
4 Fed. Cas. 510, allowing trustees of license to use patent in certain ter-
ritory, to enjoin violation, without joining beneficiaries; Meyer v. Bailey,
17 Fed. Cas. 245, holding that transferee of exclusive right as to patent
within Pennsylvania is not assignee of patent, whose consent to its reissne
is essential; Valentine v. Marshal, 28 Fed. Cas. 869, holding that partial
owner of patent right cannot sue alone for its infringement; Holden v.
Curtis, 2 N. H. 63, holding unrecorded assignment of patent valid except
as to creditors and subsequent purchasers from patentee without notice.
Distinguished in Whittemore v. Cutler, 1 Gall. 430, 431, Fed. Cas. 17,600,
allowing joint action for violation of patent by patentee and assignee of
right thereto.
6 Or. 329-^0, 3 li. Ed. 239, THE SGHOONEB BACHEL v. UNITED STATES.
Sentence of condemnation not affirmed if law tinder wblch forfeiture
accrued has expired, tboogh money liad been iftaid before expiration.
Approved in Gwin v. United States, 184 U. S. 675, 46 L. Ed. 760, 22 Sup.
Ct. 529, following rule ; Gulf etc. Ry. Co. v. Dennis, 224 U. S. 506, 56 L. Bd.
861, 32 Sup. Ct. 542, reversing, without consideration of federal question,
where, pending appeal. State Supreme Court had declared statute void be-
cause subject not sufficiently expressed in title; Pensacola etc. R. R. Co. v.
State, 45 Fla. 89, 110 Am. St. Rep. 69, 33 South. 986, applying principle
whiBre pending appeal statute prescribing penalty for violation of railroad
rate regulations repealed ; Lears v. Seaboard Air Line Ry., 3 Ga. App. 620,
60 S. £. 345, holding that statute relieving from attachment wages of non-
residents earned wholly without State applied to pending proceedii^;
Ex parte Larkin, 1 Okl. 55, 11 L. B. A. 418, 25 Pac. 746, arguendo; dis-
senting opinion in Steamship Co. v. Joliffe, 2 Wall. 465, 17 L. Ed. 809,
majority holding that repeal of statute pending appeal as to claim there-
under did not affect right of court to review judgment; Assessor v. Os-
bomes, 9 Wall. 575, 19 L. Ed. 751, holding that where jurisdiction of case
or class of cases depends entirely upon statute, suits already brought fall
with its repeal ; State v. Baltimore etc. R. R. Co., 3 How. 552, 11 L. Ed. 722,
refusing to allow recovery of penalty under repealed statute, for failure
to locate railroad as provided by law; Ex parte Hull, 12 Fed. Cas. 854,
holding that debt contracted before passage of bankruptcy act may be used
• to support adverse decree of bankruptcy thereunder; Pope v. Lewis, 4 Ala.
489, holding that no judgment can be rendered in action founded upon
penal statute after its repeal ; First Nat. Bank v, Henderson, 101 Cal. 310,
35 Pac. 900, holding that appeal must follow law existing when, deoision
thereon is rendered; Cook v. Gray, 2 Houst. (Del.) 475, 81 Am. Dec. 193,
469 THE SCHOONER RACHEL v. UNITED STATES. 6 Cr. 329-330
distinguishing between obligation of and remedy upon contracts as to
the extent to which legislation may interfere with each; Higginbotham v.
State, 19 Fla. 560, holding that repeal of statute, in absence of saving
clause, terminates all proceedings to enforce penalties thereunder; Bank
of St. Marys v. State, 12 Ga. 49^ holding that vested right to forfeiture
under penal statute is ^nly acquired by final judgment, and no such judg-
ment can be rendered under repealed statute; Robinson v. Beall, 26 Ga.
87, holding that expiration of bank charter extinguishes ri^ht of plaintiff
to pursue stockholders upon their stockholders' liability, where suit was to '
recover X)enalty incurred by issuing change bills in contravention of stat-
ute since repealed; Coles v. County of Madison, Breese, 158, 12 Am. Dec.
165, holding that repeal of statute remits penalty upon which verdict,
but not judgment, had been had; Thompson v. Bassett, 5 Ind. 536, holding
repeal of liquor laws to terminate prosecutions on penal bonds executed
under prior repealed laws ; Kennon v. Shull, 9 Ind. 156, dismissing appeal
where statute had been passed depriving court of jurisdiction; State v.
Edward, 5 Mart. (0. S.) 475; applying rule where act imposing forfeiture
for illegal importation of slaves was repealed ; Musgrove v. Vicksburg etc.
R. R. Co., 50 Miss. 682, holding that though original judgment was void
under then existing laws, if such laws are repealed pending appeal. there-
from, court will not reverse; Johnson v. Hahn, 4 Neb. 147, holding that
upon repeal of statute, penalties thereunder, even as to pending prosecu-
tions, are gone; Exeter v. Stratham, 2 N. H. 104, holding that warning out
of pauper, defectively begun under existing law, may be validated by
change of law and proper completion under new law ; dissenting opinion in
Rich y. Flanders, 39 N. H. 388, discussing retrospective statutes ajs to
remedy and obligation of contracts ; Butler v. Palmer, 1 Hill, 330, applying
construction where statute altered right of redemption from mortgage
sale; Palmer v. Conly, 4 Denio, 377, in note, to direct point; People v.
Townsey, 5 r^enio, 77, where, however, repealed liquor law was hot one
under which defendant wis indicted; Curtis v. Leavitt, 15 N. Y. 229,
holding that after repeal of usury statute, no defense of usury based
thereon can be interposed; Hartung v. People, 22 N. Y. 101, holding that
repeal of penal statute arrests judgment thereunder; Commonwealth v.
Standard Oil Co., 101 Pa. St. 150, refusing to impose penalty upon cor-
poration for failure to make report, where statute fixing such penalty had
heen repealed.
Distinguished in People v. Bank of San Luis Obispo, 159 Cal. 69, Ann.
Cas. 1912B, 1148, 37 L. R. A. (N. S.) 934, 112 Pac. 868, affirming order
denying new trial, though statute which supported judgment had been
repealed; United States v. Four Cases of Lastings, 10 Ben. 373, Fed.
Cas. 15,145, where lorfeiture declared under law later repealed was
affirmed, court relying under general saving clause as to pending appeals
in Revisea Statutes, section 13 ; Hargroves v. Chambers, 30 Ga. 602, hold-
ing that expiration of bank charter does nut extinguish bank's debts nor
liability of directors imposed by charter; State v. Cole, 2 McCord (S. C),
4, where act relied upon as repeal of former acts was merely re-enactment
of them and fine imposed under them was allowed to be collected.
6 Cr. 332-^338 NOTES ON U. S. REPORTS. 470
^Effect of repeal of eriminal statute after judgment. Note, 1 Amu
Cas.\ 220.
Effect of repeal, upon prior conviction under penal statute or ordi-
nance. Note, 23 L. R. A. (N. S.) 245.
Effect of repeal of statutes to defeat or preserve pending civil ac-
tions. Note, 14 L. R. A. 722.
6 Or. 332-338, 3 L. Ed. 240, lElEBE Y. PITOT.
Assignee of InsolYeiit cannot sue in Federal courts if his assignor could not^
Approved in North Am. etc. Co. v. Morrison, 178 U. S. 268, 44 L. Ed.
1064, 20 Sup. Ct. 872, following rule ; Kolze v. Hoadley, 200 U. S. ^, 50
L. Ed. 380, 26 Sup. Ct. 220, applying rule to stdt to foreclose trust deed ;
Glass V. Concordia Parish PoHce Jury, 176 U. S. 209, 210, 44 L. Ed. 437, 20
Sup. Ct. 347, holding Circuit Court has no jurisdiction of suit by party ac-
quiring title through probate sale, where the decedent was citizen of same
State as defendant; Sullivan v. Ayer, 174 Fed. 201, applying rule to assig^ii-
ment by national Bank ; Gorman- Wright Co. v. Wright, 134 Fed. 366, 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 re-
ceiver, where pledgor is resident of State of which corporation is citizen;
ptah-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 main-
tained in Federal court unless assignor could sue therein; Hoadley v. Day,
128 Fed. 304, upholding Federal jurisdiction over suit to foreclose trust
deeds securing accommodation notes; Smith v. Packard, 98 Fed. 797, hold-
ing Circuit Court has no jurisdiction of suit on forthcoming bond by plain-
tiif in attachment; Smith v. Railroad Co., 99 U. S. 400, 25 L. Ed. 438,
refusing relief demanded by creditor's bill where there had been no assign-
ment of claim sued upon to plaintiff; Smith v. Commrs. of Bourbon Co.,
43 Kan. 621, 23 Pac. 643, and Corbin v. County of Black Hawk, 105 U. S.
666, 26 L. Ed. 1138, refusing to allow suit for specific performance of con-
tract by assignee thereof for like reason; Mexican Nat. R. R. Co. y.
Davidson, 157 U. S. 205, 39 L. Ed. 674, 15 Sup. Ct. 564, holding that Cir-
cuit Court has no jurisdiction of suit by assignee of claim removed to it
(from State court, unless it could have been brought in Circuit Court in
first instance; Ballard v. Bell, 1 Mason, 251, Fed. Cas. 2121, where suit
was not founded upon assignment, but original parties were before court;
Clarke v. City of Janesville, 1 Biss. 102, Fed. Cas. 2854, holding that bond
given by city to railroad company located in same State cannot be sued
upon in Federal court by assignee; Hill v. Winne, 1 Biss. 277, 278, Fed.
Cas. 6503, refusing to allow suit in Federal courts by assignee of mort«
gage, pai;ties to which were residents of one State; Wilkinson v. Wilkin-
son, 2 Curt. 583, Fed. Cas. 17,677, applying rule directly; Bradford v.
Jenks, 2 McL. 134, Fed. Cas. 1769, holding that receiver of bank, to sue
in Federal courts must show that same suit could have been maintained
by bank; Mayer v. Foulkrod, 4 Wash. 352, Fed. Cas. 9341, holding an ex-
ecutor or adiiiinistrator not an assignee under section 14 of judiciary act;
/
471 SERE V. PITOT. 6 Cr. 332-338
WUson ▼. Fisher's Ezrs., 1 Bald. 136, Fed. Cas. 17,803, allowing assignee
of judgment in favor of New York citizen against Pennsylvania citizen
to sue thereon regardless cf intermediate assignment to citizen of latter
State; Cronin v. Patrick Co., 4 Hughes, 532, 89 Fed. 83, holding that as-
signee of non-n^;otiable instrument takes subject to all equities which
arose prior to assignment ; Hampton v. Trr^ckee Canal Co., 9 Sawy. 383, 19
Fed. 3, dismissing suit by assignee of mechanic's lien because of no allega-
tion showing that such suit could have been brought by assignors ; Dimmock
y. Doolittle, 29 Fed. 545, holding that in suit by assignor of non-
n^tiable contract for use of his assignee, citizenship of former deter-
mines question as to removal of cause from State to Circuit Court ; Simons
V. l^)silanti, *33 Fed. 194, 195, applying principle to suit by assignee of
orar contract to purchase goods; United States Bank v. McNair, 56 Fed.
326, holding that in absence of showing that court would have had juris-
diction of suit by assignor, it will refuse jurisdiction of same suit by as-
signee; Jackson & Sharp Co. v. Pearson, 60 Fed. 117, refusing jurisdic-
tion of suit by assignee of railroad company against trustee of county's
subscription to railroad bonds, both company and trustee being citizens
of same State; Cronin v. Patrick Co., 89 Fed. 83, to point that assignee
of chosV in action takes subject to equities against prior holder.
Distinguished in Brown v. Fletcher, 235 U. S. 596, 59 L. Ed. 877, 35
Sap. Ct. 154, rule does not apply to assignee of part of beneficiary's interest
in testamentary trust; IngersoU v. Coram, 211 U. S. 361, 58 L. Ed. 227,
29 Sup. Ct. 92, enforcing lien upon interest of heir, though his citizenship
was same as that of administrator; Irvine v. Bankard, 181 Fed. 210, re-
ceiver appointed to enforce stockholders' liability may bring action in
Federal court on his own citizenship, and not that of creditor; Portage
City W^ater Co. v. Portage, 102 Fed. 733, arguendo; Halsted v. Lyon, 2
McL. 229, Fed. Cas. 5968, allowing suit by assignee of promissory note pay-
able to bearer, though maker and payee of note were citizens of one State ;
Dodge's Exrs. v. Perkins, 4 Mason, 438, Fed. Cas. 3954, holding that ^uit
cannot be maintained by administrator against citizen of same State with
him, though his intestate was citizen of another State.
Criticised in Bushnell v. Kennedy, 9 Wall. 393, 19 L. Ed. 739, holding that
provisions of judiciary act construed in principal case apply only to con-
tracts having contents, and not to mere rights of action founded upon
tort or negligence; Dundas v. Bowler, 3 McL. 208, Fed. Cas. 4140, allow-
ing suit by assignee to foreclose mortgage, though court would have had
no jurisdiction of same suit brought by plaintiff's assignor.
Power of assignee for benefit of creditors to set aside fraudulent
transfer. Note, 86 Am. Rep. 569.
Creditor's bill and proceedings in equity in aid of executions. Note,
90 Am. Dec. 291.
Power of legislating for territory is inevitahle consequence of right to
acquire territory.
Approved in Christianson v. King County, 239 U. S. 362, 60 L. Ed. 381,
36 Sup. Ct. 117, upholding statute of territory of Washington, which pro-
6 Cr. 338-^340 NOTES ON U. S. REPORTS. 472
vided for escheat to county on death of owner in fee without heirs; Dorr
v. United States, 195 U. S. 140, 49 L. Ed. 129, 24 Sup. Ct. 808, right of trial
by juiy was not extended to Philippines; Ex parte Ortiz, 100 Fed. 961,
holding so long as state of war existed in Poi^ Rico, court-martial had
jurisdiction to try civilian for crime; dissenting opinion in Downes v. Bid-
well, 182 U. S. 290, 45 L. Ed. 1108, 21 Sup. Ct. 788, majority holding that
Porto Rico is not part of the United States within taxing clause of Con-
stitution ; dissenting opinion in Dred Scott v. Sandf ord, 19 How. 611, 613,
15 L. Ed. 786, 787, as sustaining power of United States to acquire and
govern territory.
6 Or. 888-340, 3 I.. Ed. 242, MASYUiND INS. OO. ▼. BTTDSN'S ADBONIS-
TRA.TOB. ^
Operation of concealment on policy depends upon its materiality to il8k,
which is question for jury.
Cited in McLanahan v. Universal Ins. Co., 1 Pet. 191, 7 L. Ed. 108, where
question was as to materiality of time of sailing of ship; Clark v. Manu-
facturers' Ins. Co., 8 How. 248, 12 L. Ed. 1066, 2 Wood. & M. 492, Fed.
Gas. 2829, Fidelity & Casualty Co. v. Alpert, 67 Fed. 463, 28 U. S. App.
393, where concealment was as to age of insured; Penn. Mut. Life Ins. Co.
V. Mechanics' Savings Bank etc. Co., 72 Fed. 432, 37 U. S. App. 692, where
concealment was of temporary ailments insured had suffered, he being re-
quired to disclose diseases he had had; N'ew York Foremen 'a Ins. Co. v.
Walden, 12 Johns. 516, 7 Am. Dec. 344, where concealment was as to char-
acter of master of insured vessel.
Bill of lading is not concluslye as ta ownerBhip of property covered, but
may be contradicted.
Approved in Herbst v. The Asiatic Prince, 97 Fed. 345, holding delivexy
of consignment of dutiable goods to customs ofi&cers is good delivery;
Jones V. Sims, 6 Port. 162, following rule; Harrison v. Hixson, 4 Blackf.
228, holding that such bill may be introduced as evidence of delivery to
carrier, and qualified by other evidence as to ownership ; Witzler v. Collins,
70 Me. 301, 35 Am. Rep. 333, holding similarly as to statement in bill of
lading concerning condition of goods when received; Ellis v. Willard, 9
N. Y. 531; Alton v. Gilmanton, 2 N. H. 521, holding that agreement of
attorney waiving notice to his client, made after entering of action, and
become part of court files, is conclusive as to facts recited therein; Barney
v. Bliss, 2 Aik. 63, holding that receipts may be varied by parol evidence.
If yerdict is against evidence, only remedy is new trial to be granted by
court in which verdict was found.
Approved in Victor American Fuel Co. v. Tomljanovich, 232 Fed. 666,
where there was no motion to direct verdict on ground of insufficiency of
evidence, question could not be considered on appeaL
NOTES
ONTHS
UNITED STATES REPORTS,
Vn GRANGE.
7 Ot. 1, 8 L. Ed. 240, HUDSON ▼. GXTESTIEB.
Cue eaiinot be reheard in tbe Supreme Court after the term in which it
was decided.
Approved in United States v. Mayer, 236 U. S. 67, 59 L. Ed. 186, 36 Sup.
Ct. 16, Omaha Electric Light etc. Co. v. Omaha, 216 Fed. 854, 133 C. C. A.
52, Roberts v. Haggart, 4 Dak. 211, 212, 29 N. W. 656, 667, and Bushnell
v. Crooke M. & S. Co., 160 U. S. 83, 87 L. Ed. 1007, 14 Sap. Ct. 22, all
following mle ; Brooks y. Railroad Co., 102 U. S. 107, 26 L. Ed. 92, coart
saying that nothing more eoald be done than to correct clerical errors
after term; Schooner Lizzie Weston, Blatchf. Pr. 266, Fed. Cas. 8426, hold-
ing court could not reopen decree after term; People ex rel. v. Mayor etc.
of N. Y., 25 Wend. 256, 85 Am. Dec. 672, where court refused to grant
rehearing after final judgment on merits; Allen v. Wilson, 21 Fed. 883,
holding Circuit Court cannot set aside or modify decree after term ; Gratiot
V. Missouri Pac. R^. Co., 116 Mo. 472, 21 S. W. 1100, where motion was
made to set aside an order overruling motion for rehearing; The Martha,
Blatchf. & H. 173, Fed. Cas. 9144, holding that equity will not, except
with the consent of all the parties, grant a rehearing or modify decree
after term; Emerson v. Davies, 1 Wood. & M. 23, Fed. Cas. 4437, holding
rehearing in equity would not be granted on mere certificate of counsel
as to sufficiency of reasons for it; The Major Barbour, Blatchf. Pr. 315,
Fed. Cas. 8984, holding that courts of law and of equity are governed by
the same rules ; Tyler v. Magwire, 17 Wall. 283, 21 L. Ed. 583, holding final
decree in equity to be as conclusive as judgment at law ; Doggett v. Emer-
son, 1 Wood. & M. 4, Fed. Cas. 3961, to point that until decree is actually
entered and until the close of the term it may be reviewed; Petty v. Mer-
rill, 12 Blatchf. 17, Fed. Cas. 11,051, where doctrine was applied in ad-
miralty; The Avery, 2 Gall. 389, 390, Fed. Cas. 672, where after captured
vessel was condemned, one moved to interpose claim of property; The
Steamer New England, 3 Sumn. 503, Fed. Cas. 10,151, where court con-
sidered but did not decide whether libel of review would lie in admiraltv:
Sloman v. Wyssman, 22 Fed. Cas. 349, holding review in libel could not be
(473)
7Cr.^26 NOTES ON U. S. REPORTS. 474
had after term; Snow v. Edwards^ 2 Low. 275, Fed. Gas. 13,145, holding
that after term the court can entertain libel of review in admiralty; The
Illinois, 1 Brown, 21, Fed. Gas. 7003, holding admiralty conld not after
term set aside final decree because of mistake or oversight; Remnants of
The Gaithneshire, Abb. Adm. 164, Fed. Gas. 2294, where power to award
costs was considered.
Distinguished in Burget v. Robinson, 123 Fed. 264, holding court may
permit petition for rehearing to be filed aft^ time prescribed by roles.
7 Or. 2-22, 3 I.. Ed. 248, FITZSIMM0N8 ▼. OODEN.
Between merely equitable cUtmantB, each having equal equity with otner,
he who has precedency in time has advantage in right.
Gited in Boone v. Ghiles, 10 Pet. 210, 9 L. Ed. 400, where claim of bona
fide purchaser was set up; Byers v. Fowler, 12 Ark. 285, 54 Am. Dec 286,
where question was as to priority between purchasers under executions;
Wallace v. Bartle^ 21 Iowa, 350, Bd Am. Dec. 586, where purchaser at exe-
cution purchased an equitable title of defendant; Wailes v. Gooper, 24 Miss.
231, where doctrine was applied in favor of a mortgagee as against holder
of an equitable title; Shelton v. Lewis, 27 Ark. 197, where rights of wards
against bona fide purchasers was considered.
Priority between different grantees of land. Note, 10 E. R. 0. 644.
Legal title prevailing where equities are equal. Note, 10 E. R. 0. 569.
Priority between mortgages. Note, 18 E. R. 0. 528.
One who has an equal equity with aaotlier is justified in buying in legal
estate to obtain soperiority,
Gited in Bye^ v. Fowler, 12 Ark. 286, 54 ASL Dec. 287, where rights of
bona fide purchaser from fraudulent vendee in execution sale were con-
sidered ; Boone v. Ghiles 10 Pet. 211, 9 L. Ed. 400, holding that as against
an innocent purchaser any adversary must be left to his remedy at law;
Holmes v. Stout, 4 N. J. Eq. 494, 10 N. J. £q. 420, 422, to point that grants
of bona fide purchaser is not charged with notice though known to him.
BeLease regularly executed aad delivered cannot be avoided at law by
failure of one of parties to perform act in consideration of which release given.
Gited in Kingsley v. Kingsley, 20 111. 208, where one of parties to con-
tract failed to perform; Glaflin & Go. v. Dacus, 59 Fed. 1000, where effect
of release given by creditor to assignee for creditors in consideration of
payment in full, was considered.
7 Cfr. 22-28, 3 li. Ed. 256, THE BBIQ JAMES WESLLS ▼. TTNITED STATES.
New evidence admitted in an admiralty case in the Supreme Court.
Gited in the note to The Argo, 2 Wheat. 289, 4 L. Ed. 241, to point that
further proof is admissible in prize as well as in instance cases; Vander-
hey den v. Reid, 1 Hopk. Gh. 469, to point that cases in admiralty upon
appeal are reheard at large; Folger v. The Robert G. Shaw, 2 Wood. & M.
540, Fed. Gas. 4899, to effect that it is layrful to make new allegations and
proof on leave in appellate court. -
475 NOTES ON U. S. REPORTS. 7 Cr. 26-34
7 Cr. 25-51, 3 L. Ed. 267, ISABTI^ilKI) INS. OO. ▼. LB BOY.
Taldng an addttional cargo not sanctioned 1>y tlie contract of Uumrance
dtsehATgeB Insurer from ]iAl)lUt7.
Approved in Globe Navigation Co. v. Russ Lnmber & Mill Co., 167 Fed.
230, holding taking tow causing delay was deviation; Natchez Ins. Co. v.
StantoQ, 2 Smedes & M. 375, 376, 41 Am. Dec. 595, where it was held that
taking a tow was a deviation ; Leitch v. Atlantic Mnt. Ins. Co., 66 N. Y. 108,
where the insurer was discharged because of improper stowage.
Deviation disduurgea underwriter wlLether any increase of rink resulted or
not.
Cited in Moore v. Phoenix Ins. Co., 62 N. H. 243, 13 ASL St. Bep. 559,
where poliqy was avoided for nonoccupation of premises ; Stewart v. Tenn.
M. & F. Ins. Co., 1 Humph. 250, holding that lashing flatboat to steam-
boat violated policy; dissenting opinion in Thorndike v. Bordman, 4 Pick.
493, court saying discharge comes because contract is not pursued, and
not because of increase of risk; Schroeder v. Schweizer etc. Geselischaft,
66 Cal. 297, 5 Pac. 480, holding that a transshipment of a cargo discharged
underwriters.
Distinguished in Hughes v. Union Ins. Co., 3 Wheat. 165, 166, 4 L. Ed.
360, 361, where there was a stoppage and delay to avoid capture; Jolly v.
Bait. Eq. Soc., 1 Har. & G. 303, 306, 18 ASL Dec. 291, 293, where the court
further said, however, that if the principal case decided that the mere
taking on board of the jackasses discharged the insurer, it would not
follow it.
HeesMtty alone sanctions deviation and deviation must be strictly com-
■ansnrats wltli vis major producing it.
Cited in Turner v. Protection Ins. Co., 25 Me. 524, 48 AuL Dec. 299,
holding a voyage can be departed from only to protect life and property.
Carrier's duty to proceed by usual route. Note, 5 E. R. 0. 280.
Vitiation of policy by deviation. Note, 9 E. R. C. 868.
What action at intermediate port constitutes a deviation. Note, 9
£• R. C^ 883.
Miscellaneous. Cited in Van Deusen v. Hayward, 17 Wend. 71, but not
in point. *
7 Ct. 32-84, 3 Xi^ Ed. 259, UNITED STATES v. HUDSON.
Acquiescence in construction of an act for many years is of welgbt as an
eiem&nt in its interpretation.
Cited in Clark v. Mowyer, 5 Mich. 468, where rights had become vested
under a tax law ; Sears v. Cottrell, 5 Mich. 265, appljring this doctrine in
construing tax law.
Courts created by general goYemment possess no jurisdictloa but what is
given tliem by power that creates them.
Approved in Mahopoulus v. Chicago etc. Ry. Co., 167 Fed. 167, and Ex
parte Wisner, 203 U. S. 455, 51 L. Ed. 266, 27 Sup. Ct. 150, both holding
7 Cr. 26-34 NOTES ON U. S. REPORTS. 476
suit which coald not have been commenced in Circuit Coart could not be
ren^ioved thereto &-om State court; Kentucky v. Powers, 201 U. S. 24,
50 L. Ed. 644, 26 Sup. Ct. 387, Circuit Court has na jurisdiction on removal
of criminal prosecution wherein equal civil rights secured by Federal la'wrs,
but not authorized by State law, were denied accused in summoning and
impaneling jury; Stevenson v. Fain, 195 U. S. 167, 49 L. Ed. 143,^25 Sup.
Ct. 6, decisions of Circuit Court of Appeals is final in action in Circuit
Court between diverse citizens claiming under grants from different States ;
United States v. Martin, 176 Fed. 112, indictment held to charge crime
under Interstate Commerce Act of 1906; Columbus Iron & Steel Co. v.
Kanawha etc. Ry. Co., 171 Fed. 715, holding Circuit Court had no juris-
diction until given by Interstate Commerce Acts to enjoin carriers' rates ;
United States v. Grimaud, 170 Fed. 206, 207, holding void, act making it
penal offense to violate rules thereafter to be made by Secretary of In-
terior as not designating act which shall constitute crime; Pereles v. WeiL
157 Fed. 423, holding indictment charging common-law crime of conspiracy
charged no offense within jurisdiction of cou;rt; Lewis Pub. Co. v. Wyman,
152 Fed. 202, holding State courts might have jurisdiction until divested
by Congress over causes which could, under Constitution, be conferred on
Federal courts alone ; United States v. Barrett, 136 Fed. 192, Federal court
has no jurisdiction over suit in name of United States on bond of con-
tractor under 28 Stat. 278, unless requisite citizenship and amount in
controversy shown; Wilkins v. United States, 96 Fed. 839, upon question
of offenses against revenue laws ; Peters v. United States, 94 Fed. 131, hold-
ing Federal courts know no common-law crimes; Taylor v. State, 49 Fla.
80, 38 South. 384, upholding power of court to appoint anothw member of
bar to act as adviser of grand jury where State attorney xefnses to dis-
charge duties; Kettelhake v. American Car & Foundry Co., 243 Mo. 417,
147 S. W. 480, holding right of removal to Federal court depended on
statute, and constitutional question involved; Ex parte De Vore, 18 N". M.
253, 136 Pac. 49, holding statute adopting common law "as recognized by
the United States'' adopted common law, though common law was never
adopted by United States as such; Johnson v. State, 66 Ohio St. 66, 90
Am. St. Bep. 568, 63 N. £. 609, holding it must be shown that tinlavrful
act, resulting in unintentional homicide, was contrary to statute; Barclay
V. United States, 11 Okl. 509, 69 Pac. 800, stealing of property »in Indian
Territory and bringing it into Oklahoma not being crime under Federal
law, it is crime against Oklahoma law; Divine v. Unaka Nat. Bank, 125
Tenn. 108, 39 L. R. A. (N. S.) 586, 140 S. W. 749, holding State court had
probate jurisdiction of estate of inmate of national soldiers' home Bitn-
ated on land ceded by State to Federal government; Baker v. Biddle,
1 Bald. 403, Fed. Cas. 764, holding sixteenth section of judiciary act to
be imperative ; and in the same case, at page 406, to point that an enumera-
tion of cases on which the Federal court may act is an exclusion of all
others ; United States v. Eckford, 6 Wall. 488, 18 L. Ed. 921, judiciary act
does not authorize suit against the United States in any Federal court;
Campbell v. United States, 4 Fed. Cas. 1202, to point that District Court
has no common-law jurisdiction; Lynch v. Clarke, 1 Sand. Ch. 651, dis-
477 UNITED STATES v. HUDSON. 7 Cr. 26-34
cussing whether there was any common law of the United States ; United
States V. Cmikshank, 92 U. S. 564, 23 L. Ed. 695, the court saying that
appellate jurisdiction does not extend to any case not within jurisdiction
of the inferior court; McNealy v. Gregory, 13 Fla. 435, where the court
said that the jurisdiction of courts was no part of the obligation of a
contract ; MagiU v. Parsons, 4 Conn. 322, holding that an assumpsit brought
by the Bank of the Un^ited States was a case arising under the laws of
the United States; Cast v. Cast, 1 Utah, 118, discussing the jurisdiction
of District Courts in divorce actions; Gatton v. Chicago etq. Ry. Co., .95
Iowa, 122, 131, 135, 63 N. W. 592, 595, 596, holding that overcharges fdr
freight on an interstate shipment prior to the Interstate Commerce Act
could not be recovered; Harrison v. Hadley, 2 Dill. 234, Fed. Cas. 6137,
where question was as to jurisdiction in cases of contested elections; dis- •
senting opinion in Ex parte Crane, 5 Pet. 204, 8 L. Ed. 98, majority hold-
ing that Supreme Court could compel signing of a bill of exceptions;
Forward v. Adams, 7 Wend. 207, to point that Federal courts have no
general common-law criminal jurisdiction; In re Barry, 42 Fed. 119, 120,
121, Fed. Cas. 1059, 136 U. S. 605, 607, 608, 34 L. Ed. 506, 507, where right
to issue the writ of habeas corpus was discussed; dissenting opinion in
In re Neagle, 135 U. S. 89, 34 L. Ed. 80, 10 Sup. Ct. 677, vhere there was
IKJtition to discharge prisoner on habeas corpus; United States v. Coolidge,
1 Wheat. 41(5, 4 L. Ed. 126, where question was whether the Circuit Court
had jurisdiction over offenses at common law; Bray v. United States,
1 N. M. 4/ holding that courts have no jurisdiction of offenses at common *
law without legislative sanction; Mitchell v. State, 42 Ohio St. 385, hold-
ing that there are no common-law offenses; United States v. Coolidge,
1 Gall. 495, Fed. Cas. 14,857, where the court considered the question as
it respected offenses of admiralty and maritime jurisdiction ; United States
V. Wilson, 3 Blatchf. 438, Fed. Cas. 16,731, to point that to give Federal
courts jurisdiction over crimes there must be a designation both of the
offense and the tribunal; MuUer's Case, 17 Fed. Cas.^976, a proceeding
against forger and fugitive from justice; State v. Buchanan, 5 Har. & J.
361, 9 Am. Dec. 570, United States v. Benson, 70 Fed. 594, 44 U. S. App.
219, United States v. Britton, 108 U. S. 206, 27 L. Ed. 700, 2 Sup. Ct. 535,
all cases of conspiracy; In re Dana, 68 Fed. 899, where defendant was in-
dicted for libel; United States v. Rogers, 46 Fed. 3, where stolen property •
was brought within jurisdiction; United States v. Hall, 98 U. S. 345,
25 L. Ed. 181, where defendant was indicted for embezzlement; In re
lasigi, 79 Fed. 752, a proceeding against consul for embezzlement; United
States V. Boyer, 85 Fed. 436, where defendant was indicted for bribery;
In re Kelly, 71 Fed. 546, where one was committed for an assault in
national soldiers' home; United States v. Lewis, 13 Sawy. 533, 36 Fed.
450, holding that assault on the high seas was not within the statute con-
ferring jurisdiction; dissenting opinion in Tennessee v. Davis, 100 U. S.
275, 25 L. Ed. 654, where deputy collector of internal revenue was indicted
for murder ; United States v. Plumer, 3 Cliff. 55, Fed. Cas. 16,056, indict-
ment for murder on high seas; United States v. McKenzie, 26 Fed. Cas.
1120, 30 Fed. Cas. 1162, where murder was committed on board United
7 Cr. 26-34 NOTES ON U. S. REPORTS. 478
States ship of war; Jones v. United States, 1^7 U. S. 211, 34 L. Bd. 696,
11 Sup. Ct. 83, where murder was committed in Guano Islands; United
States y. Terrel, Hempst. 412, Fed. Gas. 16,452, holding there was no law
of Congress to punish robbery; United States v. New Bedford Bridge,
1 Wpod. & M. 435, 438, 448, Fed. Gas. 15,867, indictment against corpora-
tion for obstructing a river; United States v. Durkee, McAll. 201, Fed.
Gas. 15,009, where defendant was indicted for larceny; In re Greene, 62
Fed. Ill, where defendant was indicted under act against monopolies;
United States v. Eaton, 144 U. S. 687, 36 L. Ed, 594, 12 Sup. Gt. 767, hold-
ing that dealer in oleomargarine was not liable for failing to keep books
and make monthly return; United States v. Reese, 92 U. S. 216, 23 L. Ed.
564, indictment against election inspectors for refusing to receive vote of
* negro; United States v. Abbott, 24 Fed. Gas. 744, where defendant "was
indicted for violating revenue laws ; United States v. Mitc\iell, 58 Fed. 997,
where party was indicted for refusing to answer questions put by census
marshal; Gonmionwealth v. Peters, 12 Met. 394, the court saying that the
authority of the principal case was impugned by United States v. Goolidge,
1 Gall. 495, Fed. Gas, 14,857, but approving of principal case.
To punish for contempt and enforce obedience of order are powers wliicli
necessarily result to courts from nature of their institution.
Approved in United States v. Toledo Newspaper Go., 220 Fed. 473, hold-
ing publisher of newspaper in contempt for publications obstructing justice
. in pending cause; In re Maury, 205 Fed. 629, 123 G. 0. A. 642, holding
attorney in contempt for contemptuous sta4^ements to jury; United States
v. Dietrich, 126 Fed. 678, holding one elected to United States Senate,
until he has been accepted by Senate as member and assumed duties of
office, is not member of Gongress within Rev. Stats., § 1781, punishing mem-
ber of Gongress who receives bribe; Ripon Knitting Works v. Schreiber,
101 Fed. 813, 814, holding court may, without jury, punish disobedience
to orders in bankraptcy; United States v. Sweeney, 95 Fed. 450, holding
persons violating injunctions are not entitled to juiy trial; Re Gompers,
40 App. D. G. 322, holding defendants in contempt for violation of in-
junction against boycott ; Ghicago etc. Ry. Go. v. Gildersleeve, 219 Mo. 178,
184, 16 Ann. Gas. 749, 118 S. W. 88, 90, holding void statute limiting power
. of court to punish for contempt; Carter's Gase, 96 Va. 807, 32 S. E. 7^2,
holding void Acts 1897-98, p. 548, providing for jury trial in contempt
proceedings; United States v. New Bedford Bridge, 1 Wood. & M. 440,
Fed. Gas. 15,867, court saying power was inherent and not necessary to
be conferred; In re Terry, 13 Sawy. 461, where defendant openly resisted
authority of court; Ex parte Terry, 128 U. S. 302, 32 L. Ed. 408, 9 Sup. Ct.
79, where Gircuit Gourt inflicted immediate punishment for contempt/ in
its presence; Ex parte Hamilton, 51 Ala. 68, State v. Matthews,' 37 N. H.
453, Fischer v. Hayes, 19 Blatchf . 21, 6 Fed. 72, and In re Debs, 158 U. S.
596, 39 L. Ed. 1106, 15 Sup. Gt. 911, all proceedings for disobedience of
injunctions ; Gartwright's Gase, 114 Mass. 238, where receiver disobeyed
order of court ; Kregel v. Bartling, 23 Neb. 852, 37 N. W. 670, where parties
violated judgment of court; Fishback v. State/ 131 Ind. 312, 30 N. E. 1090,
\
479 SHIRRAS v. CRAIG & MITCHELL. 7 Cr. 34-52
liolding newspaper article refieoting upon grand jury was contempt ; People
V. Wilson, 64 111. 226, 16 Am. Eep. 642, holding publication in paper at
remote place, tending to influence administration of justice, was contempt ;
State y. Morrell, 16 Ark. 389, holding court could punish libelous publica-
tions degrading its authority; Little v. State, 90 Ind. 339, 46 Am. Bep. 225,
holding that to report for gain that juror can be bribed, is contempt ; Hale
V. State, 55 Ohio St. 215, 60 Am. St. Bep. 694, 45 N. £. 200, holding it to
be contempt to remove witness from county of his residence; Powell v.
State, 48 Ala. 156, where juror left court without the permission of court;
In re Harris, 4 Utah, 9,v 5 Pac. 131, where witness was punished for re-
fusing to answer before grand jury; Territory v. Murray, 7 Mont. 257, 15
Pae. 148, where wager had been made upon decision of the court ; dissenting
opinion in In re Buckley, 69 Gal. 17, 10 Pac. 78, proceeding in contempt be-
cause of an alleged agreement to influence court; Interstate Commerce
Commission v. Brimson, 154 U. S. 489, 38 L. Ed. 1061, 14 Sup. Ct. 1138,
holding power to punish for contempt was had by interstate commerce com-
mission; United States v.Jacobi, 1 Flipp. 110, Fed. Cas. 15,460, holding con-
tempt of Federal court crime within meaning of judiciary act; Smith v.
Myers, 109 Ind. 7, 58 Am. Bep. 380, 9 N. E. 697, to point that legislature
may make and enforce orders for the production of papers; Ex parte
Dalton, 44 Ohio St. 150, 58 Am. Bep. 801, 5 N. E. 138, holding that standing
legislative committee could punish for contempt ; Matter of Meador, 1 Abb.
(U. S.) 324, Fed. Cas. 9375, where court considered powers of supervisor
of internal revenue; Ex parte Crane, 5 Pet. 210, 8 L. Ed. 100, where ques-
tion was as to power to issue writs of mandamus ; Oshoga v. State, 3 Pinn.
59, holding that grand jury could be impaneled at extra jury term ; Super-
visors of Crawford Co. v. Le Clerc, 3 Pinn. 327, holding that County Courts
have no power to employ interpreters ; In re Metzger, 17 9ed, Cas. 234, dis-
cussing as to when judiciary can act without direction; In re Neagle, 14
Sawy. 269, 39 Fed. 858, where court discussed implied powers of govern-
ment.
Power to punish for contempt. Note, 12 Am. Dec. 179 ; 15 E. B. 0. 35.
Courts, tribunals, and persons authorized to punish contempts. Note,
117 Am. St. Bep. 952, 958.
Legislative power to abridge court's power to punish for contempt.
Note, 86 L. B. A. 255.
Adoption of common law in relation to crime. Note, Ann. Cas. 1913E,
1252, 1253.
Adoption of common law in United States. Note, 22 L. B. A. 507.
Miscellaneous. Cited probably by inadvertence in The Free State, 1
Brown, 264, Fed. Cas. 5090, a libel for a collision ; Gaines v. Hale, 26 Ark.
209, as to relief in equity against judgment at law.
7 Cr. 34-52, 3 L. Ed. 260, SHIBBAS v. CBAIQ &; MITGHEUi.
Purchaser of equitable Interest purchases at his pedl and acqnlreB prop-
erty burdoied with every prior equity charged upon It.
7 Cr. 34r^2 NOTES ON U. S. REPORTS. 480
Approved in Davis v. Carlisle, 142 Fed. 108, where nnder ehattel mort-
gage providing for future advances, but leaviiig it optional with mortgagee
whether he shall make them, they are made after notiee of subsequent
mortgage, his lien for advances is subsequent to second 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 independently of recitals in deed; Morgan v. King, 27
Colo. 560, 63 Pac. 423, holding '\|fife of bank director, by transfer, acquires
no better title to property wrongfully acquired by him than he had ;
Wasserman v. Metzger, 105 Va. 752, 54 S. E. 895, determining that pur-
chaser only bought equity and was not bona fide purchaser for value;
Shelton v. Liewis, 27 Ark. 198, 200, holding that ward's right to property
purchased with their funds may be enforced against conveyance in trust to
secure bona fide debtors ; Wallace v. Bartle, 21 Iowa, 351, 89 Am. Dec. 586,
where person purchased equity of an execution defendant in realty at judi-
cial sale ; Ketchum v. Creagh, 53 Ala. 227, where land was sold by order of
Probate Court; Brown v. Phillips, 40 Mich. 270, holding that purchase-
money mortgage cannof attach to anything which purchaser did not own
at the time of giving it; Meade v. Thompson, Walk. (Miss.) 450, holding
that purchaser tmder execution takes subject to vendor's lien where defend-
ant in execution had only bond for title; Shoufe v. Griffiths, 4 Wash. St.
165, 31 Am. St. Rep. 913, 30 Pac. 94, holding that such purchaser acquired
property burdened 'with every prior equity charged upon it; Stewart v.
McLaughlin, 11 Colo. 463, 18 Pac. 621, where holder of certificate of pur-
chase deposited it as security and afterward sold property; American Mfg.
Co. V. Hopper, 64 Fed. 560, 29 U. S. App. 12, holding purchaser from a pre-
emptor was not a bona fide purchaser; Klatt v. Dummert, 70 'Minn. 471,
holding bona fide ussignee of executory contract to buy and sell realty not
protected against action by vendor to correct error in description of the
land; California Redwood Co. v. Little, 79 Fed. 856, holding purchaser of
a certificate of purchase not entitled to protection as bona fide purchaser;
McCormack v. James, 36 Fed. 18, holding beneficiary under deed of trust
not estopped to assert his lien as against subsequent purchaser by having
been cognizant of negotiations ; McLean v. The Lafayette Bank, 3 McLean,
604, Fed. Cas. 8888, where bank took mortgage from its debtor; McLean v.
Lafayette Bank, 4 McLean, 436, Fed. Cas. 8889, holding that where mort-
gage was given on land and personalty and other liens are set up to person-
alty court will sell realty first. See also Boone v. Chiles, 10 Pet. 212,
Briscoe v. Ashby, 24 Gratt. 477, 478, Smith v. Montoya, 3 N. M. 11, 1 Pac.
181, 9 L. Ed. 400, and Byers v. Fowler, 12 Ark. 286, 288, 64 Am. Dec. 288,
289, all discussing fully the subject of bona fide purchasers.
Purchaser of equitable title, whether and when entitled to protection
as purchaser in good faith without notice. Note, 97 Am. Dec. 434.
Plat or map referred to in deed, but not annexed to or recorded with deed,
affords no evidence In aid of description.
Approved in Drug Co. v. Self, 77 Mo. App. 292, holding when chattel
mortgage refers to inventory which is not recorded, the validity of the de-
481 SHIRRAS v. C AIG & MITCHELL. 7 Cr. 34-52
seription is determined by the mortgage; McDonald v. Lindall, 3 Rawie,
496, holding that Men of mechanic does not extend beyond description of
property in claim filed ; Dorr v. School District No. 26, 40 Ark. 243, where
court said that saeh plat in connection with other proofs might be im-
portant in fixing origin, date and limits of possession; Ripley v. Harris, 3
Biss. 201, Fed. Cas. 11,853, to point that reference to bond in mortgage
is sufficient without its being set out; United States v. Arredondo, 6 Pet.
739, 740, 8 L. £d« 565, where grant by King of Spain was construed; Coos
Bank v. Brooks, 2 N. H. 149, to point that in all conveyances every interest
less than that mentioned passes.
Negligence or fraud In omitting to place a deed on record cannot be
in^mted to one who haa used all the dispatch which the law requires.
Approved in McDaniel v. Parish, 4 App. D. C. 221, holding that with-
holding deed from record did not amount to fraud; Wynn v. Garland, 16
Ark. 455, holding that it is not fraud in one legally entitled to pre-emption
to fail to give notice of his rights to subsequent "settler ; Kemper v. Camp-
bell, 44 Ohio St. 219, 6 N. E. 570, where question was as to necessity of re-
cording an absolute deed intended as mortgage; The Derby Tp. Co. v.
Parks, 10 Conn. 539, 27 Am. Dec. 702, holding that application to legisla-
ture for right to collect tolls was not void for failure to give notice. ^
Though deed misrepresents transaction, if upon inyestigation it appears to
be fair, one claiming under it will not be deprived of his real rights.
Approved in In re Silver, 208 Fed. 803, holding mortgage could be identi-
fied by parol with obligation secured ; In re Farmers' Supply Co., 170 Fed.
507, upholding mortgage not accurately describing debt securejd; Ladd v.
Lookout Distilling Co., 147 Ala. 175, 40 South. 611, holding purpose of
mortgage provable by parol ; Droop v. Ridenour, 11 App. D. C. 238, holding
consideration for deed attacked as fraudulent could be shown to be greater
than recited; Hester v. Gairdner, 128 Ga. 536, 58 S. E. 167 and Langerman
V. Puritan Dining-room, 21 Cal. App. 657, 132 Pac. 626, both upholding oral
agreement that mortgage secure future advances; Weber Implement Co. v.
Dunard, 140 Mo. App. 496, 120 S. W. 614, holding identity of debt secured
provable by parol; Youngs v. Wilson, 27 N. Y. 356, holding that mortgage
to secure liabilities incurred is not void because it does not specify amount ;
Wood V. Weimar, 104 U. S. 793, 26 L. Ed. 7fll, where mortgage on person-
alty was upheld although items making up amount were not set forth;
D'Oyly V. Capp, 99 Cal. 156, 33 Pac. 736, holding that untrue recitals or
omission to disclose real nature of transaction would not invalidate mort-
gage; Stover V. Herrington, 7 Ala. 150, 41 Am. I)ec. 88, where mortgage
stated debt to be secured at greater amount than was due; Davis v.
Schwartz, 155 U. S. 645, 39 L. Ed. 296, 15 Sup. Ct. 242, where insolvent
mortgaged property much in excess of indebtedness; Lawson v. Alabama
Warehouse Co., 80 Ala. 343, holding that false recital as to consideration
was only badge of fraud open to explanation; Booth v. Barnum, 9 Conn.
290, 23 Am. Dec. 341, where description of debt as of thirty dollars, or
thereabouts, was held sufficient to put one on inquiry; Goddard v. Sawyer,
1—31
7 Cr. 34-52 NOTES ON U. S. REPORTS. 482
9 Allen, 80, to effect that variance betweeti note described and that pro-
duced is immaterial ; Riggs v. Armstrong, 23 W. Va. 771, holding that tmst
deed may stand for real equitable claims of cestui que trust if they are
bona fide; Nicklin v. Betts Spring Co., 11 Or. 411, 50 Am. Rep. 481, 5 Pac.
54, holding that bill of sale absolute became chattel mortgage upon proof
by parol that, it was made to secure debt ; Friedley v. Hamilton, 17 Serg.
& R..73, 17 Am. Dec. 642, holding that absolute deed and defeasance con-
stitute mortgage; Christie v. Hale, 46 111. 120, to point that deed absolute
to secure debt is not void unless third parties sustain injury; Tingle v.
Fisher, 20 W. Va. 504, holding that to constitute assignment of debt in
equity, no particular form is necessary ; Baldwin v. Raplee, 4 Ben. 442, Fed.
Cas. 801, holding that mortgage to pay certain sum according to terms of
a bond is not void because bond was never exjBcuted; Pascoult v. Cochran,
34 Fed. 363, where bai^ainee was omitted from deed ; Dickson v. McLamey,
97 Ala. 390, 12 South. 401, where creditor assailed conveyance by insolvent
as fraudulent; Holt v. Craemer, 34 N. J. Eq. 189, where mortgage was exe-
cuted by mortgagor with fraudulent intent and mortgagee knew it; Hub-
bard V. Savage, 8 Conn. 220, holding that in absence of fraud a mortgage to
secure future liabilities described with reasonable certainty is valid; Col-
lins V. Carlisle, 13 111. 259, holding such mortgage to be valid although it
^ does not show real character of transaction ; Speer v. Skinner, 35 III. 292,
' holding it was not essential to validity of chattel mortgage that it should
show it was intended to secure future advances; Alexandria Sav. Inst. v.
Thomas, 29 Gratt. 492, holding that mortgage to secure future advances
was not void because it did not specify amount of indebtedness; Miller v.
Lockwood, 32 N. Y. 299, holding that sum named as a consideration of such
mortgage was of no importance; McCarty v. Chalfant, 14 W. Va. 546, 547,
where there was deed of trust to secure future advances; Tully v. Harloe,
35 Cal. 309, 95 Am. Dec. 105, where mortgage was given to secure both
present debt and future advances; Walker v. Snediker, 1 Hoff. Ch. 146,
holding that future advances will not be embraced in mortgage by subse-
quent parol agreement; Hendrix v. Gore, 8 Or. 409, holding such mortgage
to be valid as to future advances actually made in pursuance of parol
agreement entered into when it was given; Doe v. McLoskey, 1 Ala. 736,
Tison V. People's Sav. & L. Assn., 57 Ala. 330, Hendon v. Morris, 110 Ala.
114, 20 South, 29, Harrington v. Samples, 36 Minn. 202, 30 N. W. 672,
Stevens v. Hampton, 46 Mo. 410, McKinster v. Babcock, 26 N. Y. 381, Hall
V. Tay, 131 Mass. 194, and Jones v. Gnaranty & Indemnity Co., 101 U. S.
631, 25 L. Ed. 1036, all holding that parol evidence was admissible to show
the real consideration ; Claremont v. Carlton, 2 N. H. 372, to point as to ad-
missibility of parol evidence to control deed; Edwards v. Dwight, 68 Ala.
391, where court said they would hesitate before admitting parol evidence
to enlarge amount of a mortgage or tack on another debt; Craig v. Tappin,
2 Sand. Ch. 83, 85, where question was as to priority between successive
mortgages; Robinson v. Williams, 22 N. Y. 385, where question of priority
between mortgagee in mortgage to secure future advances and judgment
creditor was considered.
Description of indebtedness in ^ mortgage. Note, 49 Am. St. Rep. 209.
m SHIRRAS T. CAia & MITCHELL. 7 Cr. 34^52
Mortgage to secure fntare advances corer advances made pxlor to receipt
of actual notice of aabseqiient title of other claimants.
Approved in In re Sunflower State Reflning Co., 183 Fed. 839, holding
bonds issued after attachment of property and secured by mortgage of
property executed before attachment had priority; The Seattle, 170 Fed.
288, 95 C. C. A. 480, holding further optional advance made under terms
of chattel mortgage took precedence over second mortgage ; Courier-Journal
Job Printing Co. v. Schaefer-Meyer Brew. Co., 101 Fed. 705, holding mort-
gage for future advances to be a continuing security ; Richards v. Waldron,
9 Mackey (D. C), 688, upholding deed of trust given to secure future ad-
vances made under unrecorded agreement ; Blackmar v. Sharp, 23 R. I. 424,
50 Atl. 857, holding that by virtue of contract mortgage was valid and
prior to lien; Holley v. Curry, 58 W. Va. 75, 112 Am. St. Bep. 948, 51 S. E.
137, holding description of debt secured insufficient to constitute new prom-
ise removing bar of limitations;. Home Sav. etc. Loan Assn. v. Burton,
20 Wash. 699, 700, 56 Pac. 944, holding materialman's lien is inferior to
mortgage recorded prior to erection of building; Webb v. Crouch, 70 W. Va.
585, Ann. Cas. 1914A, 728, 74 S. E. 732, holding mortgagor could not
redeem except on payment of original debt and sums subsequently ad-
vanced on faith of mortgage; Seymour v. Darrow, 31 Vt. 134, holding
that all thai is required is that extent of mortgage should be described
in general terms; Louisville Banking Co. v. Leonard, 90 Ky. Ill, 13
S. W. 522, holding mortgage must so disclose its purpose that creditors
may know what was intended to be secured; Bell v. Fleming, 12 N. J. Eq.
16, and Summers v. Roos, 42 Miss. 779, 2 Am. Bep. 657, both holding it was
not necessary that it should appear that mortgage was to secure future ad-
vances; McGavock v. Deery, 1 Cold. 270, holding that only question is bona
fides of transaction ; Foster v. Reynolds, 38 Mo. 557, holding security may
be taken in sum large enough to cover the floating debt to be secured
thereby ; McDaniels v. Colvin, 16 Vt. 305, 42 Am. Dec. 514, where mortgage
to secure future accruing accounts as they become due was held valid;
Wilson V. Russell, 13 Md. 535, 71 Am. Dec. 652, where parties had agreed to
loan grantors in deed of trust certain sum from time to time as might be
desired; Bank of Utica v. Finch, 3 Barb. Ch. 298, 303, 49 Am. Dec. 176,
holding that mortgages or judgments may be given to secure future ad-
vances or as security for balances due from time to time; Lawrence v.
Tucker, 23 How. 27, 16 L. Ed. 478, where mortgage was made to secure
both an existing debt and future advances ; Hendricks v. Robinson, 2 Johns.
Ch. 309, holding an assignment by an insolvent to secure existing claims
and future indebtedness was valid; Crane v. Doming, 7 Conn. 397, where
mortgage referring to bond for the conditions of advances was held valid;
Hall V. Tay, 131 Mass. 193, where mortgage was given by husband and wife
on her land to A as security for goods to be sold to husband ; Fisher v. OtiS;
3 Finn. 91, where mortgage for gross sum was in reality security for ad-
vances to be made; Didier v. Patterson, 93 Va. 537, 25 S. E. 662, holding
that absolute assignment as security was mere badge of fraud repellable by
showing good faith ; Brinkerhoff v. Marvin, 6 Johns. Ch. 327, holding that
judgment may be taken to secure future advances ; Clapp v. Ely, 27 N. J. L.
7 Cr. 34r^2 NOTES ON U. S. REPORTS. 484
611, where judgment was confessed in payment of a debt and in part to
secure future advances; Union Nat. Bank v. Moline etc. Co., 7 N. D. 209,
73 N. W. 529, upholding prior mortgagee's lien, no actual notice havinpr
been given him of the second lien; Johnson v. Bratton, 112 Mich. 323, 70
N. W. 1022, holding parol admissible to show that mortgage was intended
to secure future advances ; Truscott v. King, 6 N. Y. 159, and Ely v. Park-
hurst, 25 N. J. L. 192, both upholding judgment confessed to secure future
advances; James v. Morey, 2 Cow. 292, 14 Am. Dec. 485, holding that in
some cases subject pledged may be considered as security for future loans ;
Keyes v. Bump, 59 Vt. 398, 399, 9 Atl. 601, holding that consideration
named in mortgage does not determine amount; Bell v. Radcliff, 32 Ark.
664, where loans above limitations in deed were protected; Commercial
Bank v. Cunningham, 24 Pick. 274, 35 Am. Dec. 324, holding new notes,
whether given in renewal or not, were covered by mortgage; Downing v.
Palmateer, 1 T. B. Mon. 70, holding that advances made in continuation of
those provided for will be tacked to it; Bell v. Fleming, 12 N. J. Eq. 493,
holding such mortgages to be valid as against subsequent purchasers for
value; United States v. Lenox, 2 Paine, 183, Fed. Cas. 15,592, holding such
assignment is valid as to all advances except such as are made after liens
of third persons have intervened ; Ward v. Cooke, 17 N. J. Eq. 100, holding
that if prior mortgagee have knowledge of second mortgage he cannot give
further credit ; Boswell v. Goodwin, 31 Conn. 81, 94, 81 Am. Dec. 170, hold-
ing that mortgage was not affected by subsequent mortgage, although ad-
vances were made after its recording; National Bank of Chester v. Gun-
house, 17 S. C. 494, to point that mortgage is postponed as against second
mortgage where advances were made after knowledge; Schmidt v. Zahrndt,
148 Ind. 453, 47 N. E. 337, holding that subsequent advances are lien as
against subsequent purchaser or encumbrancer with notice; Alexandria
Sav. Inst. V. Thomas, 29 Gratt. 489, where court said that if it was compul-
sory on mortgagee to loan he would take precedence even if he had notice ;
Ackerman v. Hunsicker, 85 N. Y. 47, 49, 39 Am. Rep. 622, 623, holding that
such mortgage has preference over subsequent judgments; Ter-Hoven v.
Kerns, 2 Pa. St. 98, where the court was of opinion that future advances
would not be preferred to liens attaching before such advances are made;
Tapia v. Demartini, 77 Cal. B86, 387, 11 Am. St. Rep. 290, 291, 19 Pac. 643,
liolding such mortgage to be prior lien as against mechanic's lien; Tumbull
v. Thomas, 1 Hughes, 176, Fed. Cas. 14,243, where question was as to prior-
ity between deeds of trusts; In re Haake, 2 Sawy. 241, Fed. Cas. 5883,
where, after executing trust deed to secure future advances, party declared
homestead on premises; Potter v. Holden, 31 Conn. 394, where mortgagee
in such mortgage assigned it with same power of disposition that mort-
gagee had.
Distinguished in Holbrook v* Betton, 5 Fla. 107, holding that record of
mortgage was sufficient as against subsequent encumbrancer; Mead v.
York, 6 N. Y. 451, 57 Am. Dec. 468, holding mortgage once paid cannot by
parol be kept alive and maintain priority over subsequent judgment credi-
tors.
N
485 SCHOONER PAULINA'S CARGO v. UNITED STATES. 7 Cr. 52-68
Validity of mortgages to secure future advances. Note, 20 Am. Dec
659, 662.
Validity and construction of mortgage on realty to secure future ad-
vances. Note, Ann. Cas. 19130, 558, 560.
Necessity that instrument given in execution of power should contain
reference to power. Note, Ann. Gas. 1918D/ 291.
Keeping equitable mortgage alive after payment*. Note, 1 L. R. A.
(N. S.) 407,
Miscellaneous. Cited but not in point in Baker v. Biddlb, 1 Bald. 403,
Fed. Cas. 764 ; Coon v. Bosque etc. Co., 8 N. M. 131, 42 Pac. 80, to point
that breach of any mortgage covenant renders whole sum due.
7 Cr. 52-68, 3 L. Ed. 266, SCHOONEb PAUUNA'S OABGO v. UNITED
STAT^.
Embargo act of 1808 inroUblted traoiqportation of any artlde whatever
fzoi» United Statea to any foreign port.
Cited in The Brig Short §taple, 1 Gall. 110, Fed. Ca?. 12,813, a prosecu-
tion for violation of the act.
In construing laws, court must effect intention of legislature, which inten-
tioD is to be aeaxcbed for in words of statute.
Approved in Kemper v. State, 63 Tex. Cr. 28, 138 S. W. 1039, following
^ rule ; dissenting opinion in Irwin v. Irwin, 2 Okl. 218, 37 Pac. 560, majority
holding repeal of law giving probate courts jurisdiction in divorce, such
courts have no jurisdiction in such cases; Eason v. State, 11 Ark. 495,
where question was as to whether a later act operated as a repeal pro
tanto; Bourland v. Hildreth, 26 Cal. 181, holding that when the language
of the Constitution is unambiguous, no construction opposed to its express
words should be given ; Cory v. Carter, 48 Ind. 337, 17 Am. Rep. 745, where
court said that one of cardinal rules of construction was that whole instru-
ment was to be examined in construing any portion; Louisiana Lottery
Cases, 20 Fed. 627, where expression "sending" of letters and circulars con-
cerning lotteries was construed; In re Swearinger, 5 Sawy. 53, Fed. Cas.
13,683, where construction placed on an act by court of State from which
act was adopted was not followed ; Lehman v. Robinson, 59 %A.la. 238, hold-
ing that where legislature employs different language in subsequent statute,
court will presume change of law was intended; Irwin v. Irwin, 2 Okl. 218,
37 Pac. 560, where question was as to power of territorial legislature to re-
peal act granting Probate Courts jurisdiction in divorce suits ; In re Meteor,
17 Fed. Cas. 201, holding it dangerous to vary explicit meaning by consid-
erations as to intent; Penn. R. R. Co. v. Pittsburgh, 104 Pa. St. 652, court
saying that in construing an act upon theory of supposed intention, evi-
dence of intention must be found in language of act and not outside of it ;
In re Kounnan, 7 Bank. Reg. 19, where it was said that court could not
substitute in place of an expressed intention presumed intention; State v.
Sinks, 42 Ohio St. 367, holding a tax law unconstitutional; Bartlett v.
Morris, 9 Port. 268, holding that where language is plain there is no room
7 Cr. 69-99 NOTES ON U. S. REPORTS. 486
left for constmction and resort to extrinsic facts is not permitted; Leonard
V. Wiseman, 31 Md. 205, holding that courts have no power to set aside a
statute or evade its operation ; Simington v. State, 5 Ind. 484, where statute
was held to deprive certain courts of jurisdiction over felonies; Delaplane
V. Crenshaw, 15 Gratt. 481, where evidence of member of the legislature
was excluded.
Seizure of veoBel^trnder act of April 25, 1808, is not Justified because veesel
takes on cargo, but not under inspection of revenue officer.
An information against a vessel for taking on board goods without per-
mit was abandoned after decision in principal case, in The Schooner
Friendship, 1 Gall. Ill, Fed. Cas. 6125,
Legislatures to declare how far citizen shall be restrained in ezerdse of
power over property which ownership gives, and court applies rule.
Cited in United States v. Marks, 2 Abb. (U. S.) 540, Fed. Cas. 15,721,
where defendants were tried and imprisoned for receiving excessive fees
as pension agents ; United States v. Thirty-seven Barreb of Apple Brandy,
28 Fed. Cas. 66, where the court said that although revenue statutes were
not as strictly construed as penal, yet it would not adjudge punishment un-
less law expressly required it ; Our House No. 2 v. State, 4 G. Greene, 175,
to point that proposition that proceedings in rem against property used for
unlawful purposes may be sanctioned by law without violating Constitu-
tion, is conclusively settled.
Tax on manufacturing corporations. Note, 64 L. B. A. 61.
%
7 Cr. 69-99, 3 L. Ed. 271, BUSSEUi v. OLABEE.
Construction of letters of guaranty must be the same in both courts of
law and equity.
Approved in Johnson v. Charles D. Norton Co., 159 Fed. 365, 86 C. C. A.
361, holding Federal court not bound to follow decisions of State court in
construing letters of guaranty; Colgen v. Henley, 6 Leigh (Va.), 94, the
court saying that if words of promise are at all. doubtful, court will take
into consideration circumstances and situation of parties at time.
Equity will not afford relief for injury sustained by fraud of person who
is no party to contract induced by that fraud.
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 subscription contract;
Alger V. Anderson, 92 Fed. 708, 709, arguendo; Russell v. Little, 28 Ala.
163, where the court refused to entertain a bill, the sole object of which
was to recover money alleged to have been paid through ignorance or mis-
take and fraud ; Foster v. Swasey, 2 Wood. & M. 221, Fed. Cas. 4984, holding
that fraud and discovery are grounds of equitable relief and that equity
will go on and continue proceedings; Vanbibber v. Beirne, 6 W. Va. 175,
176, where court doubted jurisdiction of equity in cases of fraud where
party had plain and complete remedy at law; Woodman v. Freeman, 25
487 RUSSELL v. CLARKE. 7 Cr. 69-99
Me. 541, 555, holding that equity wonld relieve when proper case was
presented, but that cases which declare that equity had jurisdiction in
every kind of fraud were to be viewed with caution; Bradley v. Bosley,
1 Barb. Ch. 150, holding that bill in equity would not lie by vendee against
vendor for false representations, for damages only; Warner v. Daniels,
1 Wood. & M. 112, Fed. Cas. 17,181, court saying it could not be held other-
wise in United States courts under judiciary act if remedy at law is com-
plete ; Phalen v. Clark, 19 Conn. 434, 50 Am. Dec. 257, holding that equity
has jurisdiction to relieve against every species of fraud and in many
eases concurrently with a court of law; Howse v. Moody, 14 Fla. 64, hold-
ing that where plaintiff seeks to set aside fraudulent judicial proceedings
he should make all persons parties who were actors and claim a present
interest.
Distinguished in Bean v. Smith, 2 Mason, 271, Fed. Cas. 1174, holding
that a bill in equity lies to set aside fraudulent conveyance; Harding v.
Wheaton, 2 Mason, 382, Fed. Cas. 6051, holding that equity had jurisdiction
of suit by heirs at law to set aside deed by their ancestor because of undue
influence.
On a bill for discovery, if answer of defendant discloaes notbing and plain-
tljf supports his claim by evidence in his own possession,' he should be dls-
missocl from court of equity.
Approved in Linden Inv. Co. v. Honstain Bros. Co., 221 Fed. 181, 136
C. C. A. 121, denying relief for amount alleged to be due on building con-
tract in action to foreclose mechanic's lien, where foreclosure was only
ground alleged for equitable relief and it failed; United Cigarette Mach.
Co. V. Winstofi Cigarette Mach. Co., 194 Fed. 957, 114 C. C. A. 583, holding
bill did not show cause of action in equity for discovery; Lewis Pub. Co.
v., Wyman, 168 Fed. 762, refusing to enjoin postmaster from refusing to
admit magazine as second-class matter, where pending suit new permit
granted; Sloss-Sheffield Steel & Iron Co. v. Maryland Casualty Co., 167
Ala. 559, 52 South. 752, upholding bill for discovery ; McCormick v. District
of Columbia, 4 Mackey (D. C), 406, holding where foundation was laid
for discovery, equity, after granting it, would proceed to administer relief
thereon; Brauer v. Laughlin, 235 111. 274, 85 N. E. 287, where plaintiff sued
for specific performance of contract whereby defendant was to hold stock
in trust and for accounting, and failed to show right to equitable relief,
it was error to retain jurisdiction in order to decree for money loaned;
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, insufficient as not averring discov-
ery indispensable to recovery ; Viele v. Hoag, 24 Vt. 52, holding that if bill
is brought for discovery merely in aid of proceedings at law and discovery
fails, bill will be dismissed; Home Ins. Co. v. Stanchfield, 1 Dill. 430, 2
Abb. (U. S.) 5, Fed. Cas. 6660, the court saying that necessity for dis-
covery fails when complainant has failed to obtain discovery he sought f
Hcnken v. Gramann, 2 Rich. 367, court saying adduction by plaintiff of
other evidence would remove only ground for jurisdiction of equity; Ilalo
7 Cr. 69-99 NOTES ON U. S. REPORTS. 488
V. Clarkson, 23 Gratt. 48, and Baker v. Diddle, 1 Bald. 409, 420, Fed. Cas.
764, both holding that discovery did not lie for matter of which plaintiff
had knowledge and means of proof; Bell v. Pomeroy, 4 McLean, 68, 59,
Fed. Cas. 1263, holding that in discovery to aid prosecution at law bill
should aver the materiality of facts, and that they can only he proved by
defendant; Brown v. Swann, 10 Pet. 603, 9 L. Ed. 511, holding that bill
should show that facts are known by defendant and should be disclosed,
and that claimant is unable to prove them; Cecil Nat. Bank v. Thurber,
69 Fed. 914, 8 U. S. App. 496, holding that where bill seeks relief as well
as discovery, complainant must allege his inability to establish at law mat-
ters of which discovery is sought; Coquillard v. Suydam, 8 Blackf. 31,
where bill did not allege discovery was indispensable and matter was de-
nied by answer; Stacy v. Pearson, 3 Rich. Eq. 152, where court held that
party may have discovery not only when he is destitute of other evidence,
but also to aid such evidence or to render it unnecessary; Berry v. Ginaca,
6 Sawy. 395, 6 Fed. 481, holding that where plaintiff alleges in connection
with his legal cause of action some equitable matter not sustained by proof,
he cannot have decree for legal matter; Buzard v. Houston, 119 U. S. 354,
30 L. £d. 454, 7 Sup. Ct. 253, where bill showed ground for legal and not
equitable relief and prayed for discovery as incidental only; Leggett v.
Postley, 2 Paige, 602, holding discovery would not lie merely to guard
against anticipated perjury in suit at law; Crane v. Bunnell, 10 Paige Ch.
335, where bill was filed for relief against fraudulent contract and for
discovery of the fraud; Virginia etc. M. & M. Co. v. Hale, 93 Ala. 545,
9 South. 258, where discovery was sought from corporation; Baker v. Bid-
die, 1 Bald. 417, Fed. Cas. 764, holding that bill, if sustained, does not
give power to make final decree if relief is not incidental to discovery.
Distinguished in Tyler v. Savage, 143 U. S. 94, 96, 86 L. Ed. 88, 89, 12
Sup. Ct. 345, where discovery was only one of grounds of jurisdiction and
answers disclosed facts; Tappan v. Evans, 11 N. H. 324, holding that it
is sufficient to sustain jurisdiction that discovery is had of facts which
are material to case.
Pleading in bill of discovery. Note, 2 Am. Dec. 70,
If claim is to be satisfled out of fund whldi is accessible only by aid of
a court of diancery, application may be made in first instance to that court.
Approved in Alger v. Anderson, 92 Fed. 711, holding where legal equi-
table relief is sought in connection with, and latter fails, court will not
retain jurisdiction to grant purely legal relief; Brockett v. Lewis, 144 Mich.
562, 108 N. W. 429, upholding 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; Burnham, Munger etc. Co. v. Smith, 82 Mo.
App. 42, arguendo; O'Brien v. Coulter, 2 Blackf. 423, holding that
party need not first obtain judgment where debtor is deceased or where
claim is to be satisfied out of fund accessible only in equity; Postel-
woit V. Howes, 3 Iowa, 385, holding that rule requiring return of
489 RUSSELL v. CLARKE. 7 Cr. 69-99
nnll^ bona did not apply when creditor's bill was filed against an estate;
Snodgrass v. Andrews, 30 Miss. 490, 64 Am. Dec. 173, and Hamilton
V. Miss. College, 52 Miss. 68, both holding chancery to be proper tribunal
where relief was sought against fraudulent conveyances by decedent; Luthy
V. Woods, 6 Mo. App. 69, to point that creditor must obtain judgment at
law before proceeding in equity where there is no original ground of
equity jurisdiction; Miller v. Davidson, 3 Gilm. 523, 44 Am. Doc. 718, hold-
ing that creditor seeking to satisfy claim out of equitable right not liable
to execution, must exhaust his remedj^ at law; Shufeldt v. Boehm, 96 111.
563, where equity refused to enjoin sale under ^n execution on the ground
that judgment was fraudulently confessed; Kankakee Woolen Mill Co, v.
Kampe, 38 Mo. App. 236, holding that creditor at large may proceed in
equity to set aside invalid preference; Early Times Dis. Co. v. Zeiger, 9
N. M. 36, 49 Pac. 724, upholding right of creditor to sue in equity to estab-
lish trust in debtor's property fraudulently conveyed without first obtain-
ing judgment at law; Kahn v. Salmon, 1 Sawy. 190, 20 Fed. 805, holding
lien of attachment is sufficient to enable creditor to maintain suit in equity
to set aside fraudulent assignment; Qetzler v. Saroni, 18 111. 518, holding
that judgments on attachments are proper foundation* for equitable inter-
position to set aside conveyance in fraud of creditors; Gamage v. Harris,
79 Me. 536, 11 Atl. 423, where complainant brought bill to remove cloud,
alleging that defendant held under fraudulent judgment, and failed to
prove fraud; Ferson v. Sanger, 2 Ware (Dav.), 261, Fed. Cas. 4751, holding
equity will not entertain suit for damages arising out of fraud when dam-
ages are the sole object of the bill; Kent v. Curtis, 4 Mo. App. 127, 128,
131, holding petition to subject property purchased with funds converted
by defendant and conveyed to his wife to be demurrable; Batchelder v.
Altheimer, 10 Mo. App. 185, holding creditor of insolvent limited partner-
ship Aiay without judgment invoke equity to protect and distribute assets ;
Pullman v. Stebbins, 51 Fed. 12 holding that on dissolution of corporation
creditors may sustain bill unsupported by judgments to reach assets;
Pierpont v. Fowle, 2 Wood. & M. 29, 30, Fed. Cas. 11,152, holding that bill
for account of sales under copyright and for injunction gives chancery
prima facie jurisdiction; Pendleton v. Perkins, 49 Mo. 568, holding that
where debtor has absconded and there was no proceeding by which his
property can be reached, creditor's bill will lie in first instance; Merchants'
Kat. Bank v. Paine, 13 R. I. 593, holding that where one had absconded
in debt, leaving no legal assets which could be attached, his creditors can
proceed at once in equity; Hipps t. Babin, 19 How. 278, 15 L. £d. 635,
holding that equity would not entertain bill seeking to enforce merely legal
titie to land; County of Cook v. Davis, 143 111. 153, 32 N. E. 177, holding
that if county treasurer fails to pay over all fees, remedy is complete on
his bond; Baker v. Biddle, 1 Bald. 408, Fed. Cas. 764, to point that sub-
poena in equity cannot be abused as pretext for bringing causes proper
for court of law into equity; Jones v. Newhall, 115 Mass. 249, 15 Am. Rep.
102, holding equity will decree specific performance of contract for the sale
of land when all that is to be done by vendee is to pay money; dissenting
7 Cr: 69^99 NOTES ON U. S. REPORTS. 490
opinion in Ladd v. Judson, 174 111. 355, 66 Am. St. Rep. 271, 51 N. E. 842,
majority holding judgment at law an indispensable prerequisite to credit-
or's bill; Stanton v. Catron, 8 N. M. 361, 45 Pac. 885, as one of three
classes of cases where creditor may resort primarily to equity.
Distinguished in Pratt v. Northam, 5 Mason, 106, Fed. Cas. 11,376, hold-
ing that bill for a recovery of assets lies, notwithstanding remedy at law.
Creditors' bills. Note, 52 Am. Rep. 673.
Demands which will "support a creditor's bill. Note, 66 Am. St. Rep.
288.
Exceptions to rule requiring creditor to reduce his claim to judgment
before suing to set aside fraudulent conveyance. Note, 1 Ann. Cas.
629.
Conditions precedent to equitable remedies of creditors. Note, 23
L. R. A. (N. S.) 102.
One having no interest must pay debt of another only when his undertaic.
ing manifests dear intention to bind himself for that debt.
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 guaranty that contract
will be carried out; Tucker v. Bitting, 32 Pa. St. 430, holding that parol
evidence to charge one with debt of another must be clear, explicit and
certain; Rankin v. Childs, 9 Mo. 678 (669), 680 (672) where words, "I
hereby guarantee the payment of the above bill," were construed; Doug-
lass V. Reynolds, 7 Pet. 118, 122, 8 L. Ed. 629, 630, where letter of credit
was construed and evidence of reliance upon it allowed; Bell v. Bruen,
1 How. 185, 11 L. Ed. 96, holding that commercial letters are not construed
on the same principles as bonds, but ought to receive reasonable interpreta-
tion according to true import of thie terms; Eaton v. Mayo, 118 Mass. 143,
when following letter was held not to be a guaranty: ''Let M. have what
goods he may want on four months, and he will pay as usual."
Distinguished in Home Sav. Bk, v. Hosie, 77 N. W. 628, holding guar-
anty should be fairly construed.
One who contracts on credit of another should require explicit and plain
declaration of obligation he is about to assume.
Approved in Musgrove v. D. E. Luther Pub. Co., 5 Qa. App. 285, 63 S. E.
55, construing contract to be one of guaranty; Yates Center Nat. Bank v.
Allen, 92 Kan. 483, Ann. Cas. 1916B,*376, L. R. A. 1915A, 100, 141 Pac.
554, holding letter of recommendation did not constitute contract of guar-
anty; Unangst v. Hibber, 26 Pa. St. 153, holding that proof of promise
must be clear and must contain positive declaration of obligation assumed ;
Smith V. Montgomery, 3 Tex. 209, holding that liability of guarantor or
surety cannot be extended beyond actual terms of his engagements; First
Nat. Bank v. Sowles, 46 Fed. 732, where directors, during run on bank,
posted notice to effect that bank was solvent.
Distinguished in Home Sav. Bank v. Hosie, 119 Mich. 124, 77 N. W. 628,
holding where stockholders executed to bank a bond reciting that for certain
491 RUSSELL v. CLARKE. 7 Cr. 69-99
period, secretaiy was authorized to borrow np to certain amount, it con-
stituted a continuing guaranty; Moore v. Holt, 10 Gratt. 294, 295, where
it was held that letter of introduction with ''assurance that any contract
of his will and shall be promptly paid, ' ' was guaranty.
One to wliom guaranty has been given should give inpMdlate notice to
guarantor of extent of Us engagement.
Approved in Shows v. Steiner, 175 Ala. 368, 57 South. 702, holding notice
not required where contract was bilateral and completely executed on face ;
German Sav. Bank v. Roofing Co., 112 Iowa, 188, 83 N. W. 962, holding
instrument reciting that to induce bank to extend credit to principal,
which is not signed in bank's presence or at its request, is mere offer of
guaranty, requiring notice of acceptance; Pugh v. Calloway, 10 Ohio, 495,
holding where bill of goods is taken on faith of letter of credit, notice
must be given to guarantor; Acme Mfg. Co. v. R«ed, 197 Pa. St. 365, 47
Atl. 207, holding notice necessary to guarantor of payment of merchan-
dise order; Grice v. Ricks, 3 Dev. 65, holding that where liability of one
is npon collateral obligation, he who takes benefit must give other notice ;
Montgomery v. Kellogg, 43 Miss. 492, 5 Am. Bep. 510, holding that it was
necessary to give notice, first, of acceptance; second, of amount of credit;
third, of failure to pay; Rankin v. Childs, 9 Mo. 680 (672), holding that
notice should be given of acceptance and of failure to pay; Lee v. Dick,
10 Pet. 494, 9 L. £d. 508, where party was held not bound because notice
of acceptance had not been given; Adams v. Jones, 12 Pet. 213, 9 L. Ed.
1060, holding that if notice of acceptance was not given, no subsequent
diligence can make the guarantor liable; Gardner v. Lloyd, 110 Pa. St.
288, 2 Atl. 565, holding that if party promises that if creditors will grant
time he will guarantee punctual payment, notice of acceptance must be
given; Taylor v. McClung, 2 Houst. 38, and Mayfield v. Wheeler, 37 Tex.
260, both holding that guarantor for future credit must be given notice of
acceptance; Rapelye v. Bailey, 3 Conn. 443, 8 Am. Dec. 201, where one
person wrote to another that he would pay for goods furnished a third
person if the last did not; Cahuzac v. Sumini, 29 Ala. 292, holding notice
of acceptance to be necessary unless parties resided in same city and agree-
ment to accept was contemporaneous with offer; Wildes v. Savage, 1 Story,
32, Fed. Cas. 17,653, holding that notice of acceptance is not necessary
where agreem^it to accept is contemporaneous with the guaranty; Davis
V. Wells, 104 U. S. 163, 26 L. Ed. 688, holding that rule requiring notice of
acceptance applies only when such acceptance is necessary to that mutual
assent without which there can be no contract; Norton v. Eastman, 4 Me.
526, Wilcox V. Draper, 12 Neb. 142, 143, 10 N. W. 580, 581, and Powers
V. Bmncratz, 12 Ohio St. 277, 283, all holding that where guaranty is abso-
lute, no notice of acceptance is necessary; Beckman v. Hale, 17 Johns.
140, holding that letter in which one said he would stand responsible, did
not constitute absolute guaranty and that notice if^as necessary; Douglass
V. Reynolds, 7 Pet. 126, 8 L. Ed. 631, holding that notice was not necessary
in cases of continuing guaranties; Soller v. Meugy, 1 Bail. 623, where
letter of credit was given, and court held that immediate notice of accept-
7 Cr. 69-99 NOTES ON U. S. REPORTS. 492
anee was necessary; Kincheloe v. Holmes, 7 B. Mon. 9, 45 Am. Dec. 45,
and Craft v. Isham, 13 Conn. 35, both holding that guarantor was entitled
to notice within reasonable time; Farmers' Bank v. Tatnall, 7 Houst. 300,
31 Atl. 880, holding that delay of over year discharged guarantor; Central
Sav. Bank v. Shine, 48 Mo. 465, 8 Am. Rep. 117, holding that in offer by
letter to guaranty pa3mi^t of future advances, there should be distinct
notice of acceptance ; Menard v. Scudder, 7 La. Ann. 388, 389, 56 Am Dec.
61S, 614, holding that express notice from creditor is not indispensable if
fact is brought to guarantor in any other way; Lachman v. Block, 47 La.
Ann. 512, 17 South. 156, where the words, "I agree to become surety for
ten thousand dollars," with no designation of the debt, were construed;
Meyers v. Campbell, 59 N. J. L. 379, 35 Atl. 789, holding that securities
belonging to a principal debtor and pledged to indemnify his surety, will
inure to benefit of his creditors.
Distinguished in Seaver v. Bradley, 6 Me. 66, holding guarantor had
seasonable notice of facts suf&cient to charge him; Douglass v. Howland,
24 Wend. 50, holding that where one covenanted that another "shall per-
form the agreement" an action would lie without notice of the nonper-
formance.
One having no interest in transactioii making representatioa as to credit
of another honestly, is not responsible for its actual verity.
Approved in Bartles v. Courtney, 6 Ind. Terr. 391, 98 S. W. 137, follow-
ing rule; Continental Nat. Bank v. First Nat. Bank, 1 Tenn. Ch. App. 475,
upholding finding that loan was not made upon false representations by
defendant as to solvency of borrower; State Bank v. Hamilton, 2 Ind. 464,
holding that if representations were fraudulently made, one was liable,
otherwise if made in good faith ; Wynne v. Allen, 7 Baxt. 316, 32 Am. R^.
565, holding that if party honestly believed he stated truth he is not
liable; Marsh v. Falker, 40 N. Y. 569, holding that false representations
as to credit of another to be actionable must be known to be false or mnst
convey impression of actual knowledge; Einstein v. Marshall, 58 Ala. 159,
25 Am. Rep. 733, holding that if person recommends to wholesale merchant
one who desires to purchase on credit, good faith requires his representa-
tion must be true ; Hubbard v. Briggs, 31 N. Y. 529, holding it is not neces-
sary that defendant should be benefited by deceit or in collusion with the
party benefited; Young v. Hall, 4 Ga. 100, holding an action lies against
one who gives recommendation of character and credit to another ; Adding-
ton V. Allen, 11 Wend. 402, holding that where goods were sold to A upon
false representation of B as to A 's credit, an action lies against B; Wafer
V. Harvey County Bk., 46 Kan. 608, 26 Pac. 1036, holding that where fraud
consists in inducing sale of goods to insolvent from whom misrepresenting
party obtains them, seller may sue latter; Robbins v. Barton, 50 Kan. 126,
31 Pac. 686, where representation was, 'VJ consider perfectly good
for a bill of goods amounting to "; Merchants' Nat. Bk. v. Sells, 3 Mo.
App. 94, where party identified another at bank and he was not party he
was represented to be ; Nevada Bk. v. Portland Nat. Bk., 59 Fed. 344, hold-
ing a national bank to be liable for fraudulent representations through its
493 RUSSElX V. CLARKE. 7 Cr. 69-99
cashier to another bank as to financial responsibility of customer; Mer-
chants' Nat. Bk. V. Armstrong, 65 Fed. 940, holding that to make one
liable for deceit, false representations must have been made directly to
party injured; Feirson v. Sanger, 1 Wood. & M. 146, Fed. Cas. 4752, holding
that there must be knowledge to charge one criminaliter for fraud of an
agent. Cited, in discussing the question of fraud, in Green v. Bryant,
2 Ga. 70, Campbell v. Kinlock, 9 Rich. 310, and Meyers v. Merillion, 118
Cal. 356, 50 Pac. 663.
Liability for recommendation as to another's credit. Notes, 5 Am. Dec.
212; 25 Am. Dec. 448, 450.
Liability of person giving letter of recommendation to person suffering
loss by reliance thereon. Note, Ann Oas. 1916B, 378.
Expression of opinion as fraud. Note, 35 L. R. A. 421.
Fraudulent recommendation will subject the person giving It to the dam-
ages sustained by the person trusting It.
Approved in Seven Cases etc. v. United States, 239 U. S. 518, 60 L. Ed.
417, 36 Sup. Ct. 193, upholding provision of food and drug act providing
for condemnation of drugs falsely branded as to curative powers ; Edward
Barron Estate Co. v. Woodruff Co., 163 Cal. 578, 42 L. E. A. (N. S.) 125,
126 Pac. 358, holding architect liable for excess cost of building which he
fraudulently represented not to cost in excess of certain sum; Browning v.
National Capital Bank, 13 App. D. C. 11, holding one representing borrower
to be worth certain amount, but saying nothing of debts owing to himself
and others, was liable for loss of loan made on faith of representation.
If act Immoral and designedly Injurious to another were not punishable
by law, our system of Jurisprudence would be defective.
Cited in Bean v. Herrick, 12 Me. 265, 28 Am. Dec. 177, holding that if
I)arty makes false affirmation, although he has no interest he is liable;
Bristol Mfg. Co. v. Gridley, 28 Conn. 211, holding that assessor was liable
where he altered assessment list so that property of the plaintiff was rated
higher than it was before alteration.
Answer responsive to bill is evidence.
Cited in Dilly v. Barnard, 8 Gill & J. 188, holding answer to be evidence
even where the equity of the complainant's bill is grounded upon allegation
of fraud ; Jewett v. Cunard, 3 Wood. & M. 294, Fed. Cas. 7310, where ques-
tion was whether an answer voluntarily sworn to was evidence; Tufts v.
Tufts, 3 Wood. & M. 467, Fed. Cas. 14,233, arguendo ; Martin v. Martin,
13 Mo. 64, where executor sued son to recover slave given to son by father,
plaintiff charging that slave was loaned not given.
One indorsing bills on faith of guaranty cannot resort to trust fund for
the Indenmity of guarantor, both principal and guarantor being insolvent.
Cited in Keene Five Cents Sav. Bk. v. Herrick, 62 N. H. 176, holding
that payee of note is entitled to have mortgage given by maker to his
surety assigned to him; In re Baldwin, 19 N. B. R. 52, 2 Fed. Cas. 509,
holding that after insolvency of either principal or surety property is to
7 Cr. 69-99 NOTES ON U. S. REPORTS. 494
be applied upon debt for which surety is bound; Belcher v. Hartford Bk.,
15 Conn. 383, holding it was debt that was to be protected, and however
it may be modified or into whose hands it may come, fund accompanies it ;
New London Bk. v. Lee, 11 Conn. 119, 27 Am. Dec. 716, holding that the
security for debt in whose hands soever it may be is held for t^e payment
of such debt.
One taking asslgmneBt with notice of trust takes It clothed with tlie trust.
Cited in Breedlove v. Stump, 3 Yerg. 270, holding that to constitute
abandonment of trust fund there must be clear and decisive act; Wood v.
Dummer, 3 Mason, 313, Fed. Cas. 17,944, holding that capital stock is trust
fund for the payment of bank notes, and may be followed in hands of
stockholders.
One for whose benefit trust created, who Is to be ultimate receiver of
money, may sue in equity to have It paid directly to himself.
Approved in Morrill v. American Reserve Bond. Co., 151 Fed. 308, hold-
ing forbearance of trustee to sue did not prejudice right of beneficiary to
enforce trust; Rodney v. Shankland, 1 Del. Ch. 47, 12 Am. Dec. 75, hold-
ing that person for whose benefit trust is created may enforce it, although
he is not party to it; Trecothick v. Austin, 4 Mason, 36, 41, Fed. Cas.
14,164, holding cestui que trust may enforce his rights directly in equity
not only against trustee, but against all others; Homer v. Savings Bk.,
7 Conn. 484, where security is given fpr the better protection of debt
chancery will make it effectual to others who are entitled to debt ; Kinp: v.
Harman, 6 La. 620, 621, 26 Am. Dec. 488, 489, holding that bond creditor
in chancery has benefit of all counter-bonds or collateral securities given
by the principal to surety; Breedlove v. Stump, 3 Yerg. 263, holding that
indorsers of negotiable paper were entitled to benefit of collateral security
given to indorser; Ray v. Proffet, 15 Lea, 523, holding that indemnity or
collateral security given by debtor to his surety inures to benefit of credi-
tors; National Bk. v. Ridenour, 46 Kan. 713, 27 Pac. 152, where chattel
mortgage was executed by firm to one of the members thereof to secure
note executed by members of firm to bank; Sedam v. Williams, 4 McLean,
54, Fed. Cas. 12,609, holding that if debtor of a judgment debtor agree to
pay judgment creditor he may be decreed to make payment; Duke of
Cumberland v. Codrington, 3 Johns. Ch. 261, 8 Am. Dec. 501, holding that
if one takes conveyance subject to mortgage covenanting to indemnify
grantor, and having paid off part dies, land was primarily to be resorted
to for residue.
Distinguished in McConnell v. Dickson, 43 111. 108, holding that where
security pays debt he has no right in equity in first instance.
Since Circuit Courts cannot proceed against one residing within United
States, but not within district, courts may dispense with parties merely formal.
Approved in Atchison etc. Ry. Co. v. Phillips, 176 Fed. 667, 100 C. C. A.
215, holding joinder of formal parties as defendants could not affect juris-
diction ; Slater Trust Co. v. Randolph-Macon Coal Co., 166 Fed. 178, hold-
ing inability to make service on one party named as defendant but having
4S6 RUSSELL v. CLARICE. 7 Cr. 69-99
ministerial interest only did not affeet jurisdiction; Kuchler v. Greene,
163 Fed. 98, holding nominal party resident in district joined as plaintiff
did not deprive Federal court of jurisdiction where real party was non-
resident of State; Abbot v. American Hard Rubber Co., 4 Blatqhf. 492,
Fed. Gas. 9, holding that where person is beyond reach of process, court
will dismiss only when his presence is indispensable; Heriot v. Davis,
2 Wood. & M. 233, Fed. Cas. 6404, holding that case will proceed against
persons appearing and notified without prejudice to others where their
interests can be severed; Ribon v. Chicago etc. R. R. Co., 16 Wall. 451,
21 L. Ed. S69, holding that ^vhere decree can be made as to those present
without affecting those absent, court will proceed; Carneal v. Banks, 10
Wheat. 188, 6 L. £d. 299, to point that parties having been improperly
made defendants cannot affect the jurisdiction as between parties properly
before court ; Wood v. Davis, 18 How. 469, 15 L. Ed. 461, where real parties
in interest were those who resided out of State; Harrison v. Urann, 1
Stoiy, 66, Fed. Cas. 6146, holding that question of jurisdiction of United
States courts as to parties can only apply as between very parties who
by false allegation are brought within their jurisdiction ; United States v.
Amer. Lumber Co., 80 Fed. 311, to point that Circuit Court subpoena
served ou.side court's territorial jurisdiction is a nullity.
Where essential parties are not before court, the court will not make
decree.
Approved in United States Telephone Co. v. Central Union Telephone
Co., 171 Fed. 136, holding in action by telephone company to enjoin other
company from making connections with local companies with whom plain-
tiff had contract for exclusive connections, such local companies were
necessary parties; Nichols v. Nichols, 79 Conn. 654, 66 Atl. 164, applying
rule to action for accounting for proceeds of sale of land ; Lynch v. United
States, 13 Okl. 168, 73 Pac. 1100, applying rule in suit to cancel town-site
patent; Hamilton v. Savannah etc. Ry. Co., 49 Fed. 418, holding that,
iiotwithstanding the act of Congress of 1838 and rule 47 of equity practice,
no decree can be made involving rights of omitted party; California v.
Southern Pac. Co., 157 U. S. 249, 39 L. Ed. 691, 15 Sup. Ct. 599, holding
that in an original cause in Supreme Court, court would not proceed in
absence of parties whose rights would be in effect determined, though not
technically bound ; Porter v. Clements, 3 Ark. 382, holding it must appear
that ends of justice would be defeated and that rights of absent persons
would not be affected before court will proceed; Florida v. Georgia, 17
How. 508, 15 L. Ed. 200, holding that United States should have an oppor-
tunity to be heard in a controversy between States to establish a boundary ;
Christian v. Atlantic etc. R. R. Co., 133 U. S. 241, 33 L. Ed. 592, 10 Sup.
Ct. 262, holding State is an indispensable party to any proceeding in equity
to subject its property to payment of its obligations ; Tobin v. Walkinshaw,
McAU. 29, Fed. Cas. 14,068, holding that where bill prayed for cancella-
tion of conveyances in which absent parties were interested, court had no
jurisdiction; Mahr v. Norwich Union Fire Ins. Co., 127 N. Y. 461, 28 N. E.
393, holding that in an action by an equitable assignee of policy to restrain
7 Cr. 69-99 NOTES ON U. S. REPORTS. 496
its payment^ one to whom insured had assigned it absolutely should be
made a party; dissenting opinion in Eyster v. Gaff, 2 Colo. 241, holding
assignee in bankruptcy must be party in a suit by a mortgagee; Shields v.
Barrow, 17 How. 139, 140, 15 L. Ed. 160, holding compromise executed
by six persons could not be rescinded in action against two only; Qray v.
Larrimore, 4 Sawy. 650, 2 Abb. (U. S.) 556, Fed. Cas. 5721, holding that
all partners or their representatives are indispensable parties to a bill to
dissolve partnership and for an accounting; Griffin v. Lovell, 42 Miss.
404, holding that on bill filed by executor to foreclose mortgage, heirs need
not be made parties; West v. Smith, 8 How. 410, 12 L. Ed. 1134, holding
that on bill by legatee to compel executor to sell realty to pay legacies it
was not necessary to make a special devisee, residing out of State, a party ;
West V. Randall, 2 Mason, 196, 198, Fed. Cas. 17,424, 8 Wheat. 457, 5 L. Ed.
660, court being of opinion that heirs could not sue for a distributive share
without making other heirs or next of kin parties; Reese v. Bradford, 13
Ala. 844, holding that if absent parties are not mere passive parties to
decree, equity will not proceed without them.
Instead of dismissing bill brought to hearing without proper parties^ court
may xive leave to make new parties.
Cited in Hightower v. Mustian, 8 Ga. 511, holding that generally bill
will not be dismissed for want of proper parties but may be dismissed;
Picquet v. Swan, 5 Mason, 571, Fed. Cas. 11,135, to point that dismissal is
common course where persons who are necessary parties refuse to appear
and court cannot reach them by its process ; Beasley v. Shively, 20 Or. 510,
26 Pac. 847, where it appeared from record that real merits could not be
determined without essentially affecting persons not parties and court
dismissed the complaint; Lucas v. Bank of Darien, 2 Stew. 326, holding
that if case were with appellant dismissal generally would not be proper;
Sloan V. Sloan, 21 Fla. 598, where defect of necessary parties which existed
prior to decree appealed from was discovered on appeal ; Fisher v. Ruther-
ford, 1 Bald. 194, Fed. Cas. 4823, to point that parties may be added after
reversal of filial decree and the cause is remanded to Circuit Court; Poole
V. Nixon, 9 Pet. 775, 19 Fed. Cas. 996, 9 L. Ed. 307, where there was bill
of review and the court said that such bills would lie only in favor of a
party or privy to original suit ; Alston v. Rowles, 13 Fla. 114, where appeal
prosecuted by "defendants now living," omitting individual names and by
legal representative of one who was a party, was dismissed; Baker v.
Biddle, 1 Bald. 416, Fed. Cas. 764, holding that objection to jurisdiction
for want of proper parties may be made at hearing or on appeal.
Equity, being rightfully in posBession of a cause, will proceed to detomine
the whole matter in controversy.
Cited in Stow v. Barzeman, 29 Ala. 403, where this principle was ap-
plied on bill filed by vendee for an abatement of price on account of mis-
1 epresentations ; Howards v. Selden, 4 Hughes, 310, 5 Fed. 474, where
Federal court having jurisdiction over parties before it granted prayer of
petition though both petitioner and respondent were residents of same
State; McLaren v. Steapp, 1 Ga. 378, and Prior v. Adams, 1 Call, 392,
V.
497 NOTES ON U. S. REPORTS. 7 Cr. 99
both holding that where it was necessary to establish an account, equity
woald grant discovery and then grant appropriate relief consequent upon
it; Lancy v. Randlett, 80 Me. 176, 6 Am. St. Eep. 171, 13 Atl. 687, holding
that equity could grant relief, even though discovery showed proper relief
to be an award of damages ; Magic Ruffle Co. v. Elm City Co., 14 Blatchf .
112, Fed. Cas. 8950, where court having granted discovery, proceeded to
give proper relief in damages; Woodman v. Freeman, 25 Me. 545, holding
that relief can be given as consequent upon discovery only upon bill aver-
ring facts of which discovery is desired, that they rest in knowledge of
defendant alone and are material; Dowell v. Mitchell, 105 U. S. 432, 26
L Ed. 1143, to point that where jurisdiction is taken in equity of legal
cau«e of action because of some equitable relief which cannot be granted,
equity should dismiss bill ; Real Estate Sav. Inst. v. Collonious, 63 Mo. 295,
where suit was brought to set aside partition sale for fraud; Boland v.
Ross, 120 Mo. 216, 25 S. W. 526, holding that mortgagee by answering and
setting up his mortgage as prior lien waives objection that cross-bill is not
germane ; Kent v. Curtis, 4 Mo. App. 124, court saying that where principal
matter of controversy is cause of action at law it should be settled at law
wherever possible ; Magic Ruffle Co. v. Elm City Co., 13 Blatchf. 158, Fed.
Cas. 8949, holding that bill upon license under patent, although no royalties
were payable and patent had expired, is not open to objection that there
is remedy at law where an account and discovery/ are necessary.
Rule that equity assuming jurisdiction for one purpose will retain it
for all purposes^ Note, Ann. Oas. 1912A, 808.
Right, upon failure to establish ground of equitable jurisdiction, to
obta^ in a suit in equity relief obtainable at law. Note, 19 L. R. A.
(N. S.) 1071. (
Injunction against collection of illegal taxes. Note, 22 L. R. A. 702.
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 ad-
judge that it is rendered on that ground or be made without prejudice;
as to jurisdiction of ^Federal courts in Pond v. Vt. Valley R. R. Co., 12
Blatchf. 291, Fed. Cas. 11,265, Howard v. Cannon, 11 Rich. Eq. 26, 75 Am
Dec. 739, Romaine v. Union Ins. Co., 28 Fed. 639.
7 Cr. 99, 3 K Ed. 281, SOHOONEB CATHERINE ▼. UNITED STATESw
Appeal will be dismissed where appellant fails to fnmish court with a
statement of points of cane.
Cited in Southern Exp. Co. v. Van Meter, 17 Fla. 796, holding that dis-
cussion of certain errors in brief is abandonment of others.
7 Cr. 99, 3 I«. Ed. 281, BINOHAM Y. MOBBia
Motion to dismiss appeal for failure to file transcript in time denied where
transcript filed before motion made.
Approved in The Kawaitani, 128 Fed. 880, reaffirming rule; Equitable
life Assur. Soc. v. Tolbert, 145 Fed. 339, applying rule where record on
1—32
7 Cr. 100-107 NOTES ON U. S. REPORTS. 498
error, though lodged with'^lerk in due time, was not filed till five days after
return day owing to delay in payment of docket fee; Oilman v. Femald,
141 Fed. 940, where tran^ript is filed in Court of Appeals within sixty
days from signing of citation and within time specified, but after returr
day of writ of error, and failure to file before return day has not continued
hearing over any term, and no motion to dismii^s made tUl transcript
printed, writ not dismissed; Kimball Lumber Co. v. Ruge, 26 Fla. 61, 7
South. 374, and Lake v. Hancock, 29 Fla. 337, 11 South. 97, in both cases
motion being made to dismiss because appellant had not filed his transcript
on first day of the term ; Armijo v. Abeytia, 5 N. M. 538, 25 Pac. 778, where
transcript was not filed within ten days before first day of term as pre-
scribed by statute; West Chic^o St. Ry. Co. v. Ellsworth, 77 Fed. 665, 46
U. S. App. 603, where rule was applied in motion to dismiss cause in Cir-
cuit Court of Appeals ; Altenberg v. Grant, 83 Fed. 981, 54 U. S. App. 315,
writ of error will not be dismissed by Circuit Court of Appeals because
return was not made until one day after it was returnable; Sparrow v.
Strong, 3 Wall. 103, 18 L. Ed. 49, where record was filed and cause docketed
before motion to dismiss was made; Walker v. Tifl&n Mining Co., 2 Colo.
92, holding that demurrer subsequent to expiration of rule was in time if
filed before any steps were taken.
Practice and procedure governing transfer of causes to Federal Supreme
Court for review. Note, 66 L. R. A. 850.
7 Or. 100-107, 3 Is, Ed. 282, SLOOP ACTIVE ▼. UNITED STATES.
Vessel leaving wharf without clearance under suspicious circumstances is
not liable to forfeiture where she was seized in port. ^
Cited in United States v. The George Darby, 25 Fed. Cas. 1285, vessel
has not departed on her voyage until she is outside limits of harbor ; United
States V. One Hundred and Twenty-nine Packages, 27 Fed. Cas. 288, hold-
ing shipment of goods in violation of statutes is overt act, and such goods
are "proceeding to" interdicted port.
Licensed vessel employed in a trade other than that for which she wap
licensed is subject to forfeiture. /
Cited in United States v. The Paryntha Davis, 3 Ware, 162, Fed. Cas.
16,004, holding that vessel with cod-fishing license may take mackerel for
bait, but if she engages in this fishery she is liable; The Nymph, 1 Ware,
262, Fed. Cas. 10,389, and The Schooner Nymph, 1 Sumn. 518, Fed. Cas.
10,388, both holding word "trade" is equivalent to employment or business
and that cod fishing was a trade; The Boat Eliza, 2 Gall. 10, Fed. Cas.
4346, holding that if vessel, licensed for fisheries, be engaged in an illegal
traffic, she is liable ; The Ocean Bride, 1 Hask. 339, 340, Fed. Cas. 10,404,
holding that vessel licensed for fisheries, which brings merchandise, is
liable; The Willie G., 1 Hask. 260, Fed. Cas. 17,762, holding that vessel
sailing under fishing license may touch at foreign port and procure sup-
plies: Schooner Two Friends, 1 Gall. 121, Fed. Cas. 14,289, holding that
vessel licensed for fisheries taking on board goods for illicit voyage is sub-
499 NOTES ON U. S. REPORTS. ' 7 Cr. 107-112
ject to forfeiture ; Schooner Three Brothers, 1 Gall. 144, Fed. Cas. 14,009,
holding; that purchase and taking on board of fish was trading.
Distinguished in The Boat Swallow, 1 Ware, 24, Fed. Cas. 13,666, taking
of few cattle as neighborly act is not engaging in trade ; United States V.
The Reindeer, 27 Fed. Cas. 764, 766, vessel licensed to catch cod will not be
forfeited f6r catching mackerel.
7 Ct. 107-108, 3 L. Ed. 284, THE CLABISaA OI.AIBOBNE HAWTHOBN v.
UNITED STATES.
Commissioii to take depositions to be used in the Supreme Court will be
granted in an admiralty case.
Cited in Vanderheyden v. Reid, Hopk. Ch. 469, to point that eanse on
appeal in admiralty is reheard; Souter v. Baymore, 7 Pa. St. 418, 47 Am,
Dec. 519, where court said that information filed in inferior may be
amended in superior tribunal; dissenting opinion in Nickels v. Griffin, 1
Wash. Ter. 396, where there was motion to strike from files certain deposi-
tions filed by appellant ; The Argo, 2 Wheat. 289, 4 L. Ed. 241, holding that
the provision in judiciary act as to taking depositions de bene esse did not
apply to cases pending in the Supreme Court.
7 Gr. 108-112» 3 L. Ed. 284, UNITED STATES ▼. GOODWIN.
Where canse was removed from District Court to Circuit Court by writ of
error, Supreme Court cannot review Judgmenrt of Circuit Court.
Approved in dissenting opinion in State v. Thayer, 158 Mo. 53, 56, 58
S. W. 14, 15, majority holding appeal lies in misdemeanor prosecutions by
information from Jackson county Criminal Cotirt; The Pueblo Case, 4
Sawy. 580, Fed. Cas. 12,316, holding that appellate jurisdiction of Supreme
Court existed only, in those cases in which it was expressly granted ; Baker
V. Biddle, 1 Bald. 403, 406, Fed. Cas. 764, saying that Federal courts are
of limited jurisdiction, which must be exercised in the mode pointed out;
United States v. Tenbrock, 2 Wheat. 259, 4 L. Ed. 234, where writ of error
from Circuit Court in an action removed there from District Court by writ
of error was dismissed; United States v. Gordon, 7 Cr. 288, 3 L. Ed. 347,
following rule; Sarchet v. United States, 12 Pet. 144, 9 L. Ed. 1033, where
defendant in an action on bond for duties appealed to Circuit Court; Mer-
rill V. Petty, 16 Wall. 342, 21 L* Ed. 499, holding power to re-examine de-
crees of Circuit Courts removed there by appeal from the District Court
was conferred by twenty-second section of judiciary act ; Holmes v. Jenni-
son, 14 Pet. 621, 10 L. Ed. 623, holding that writ of error does not lie from
Supreme Court to State court to revise proceedings on habeas corpus;
dissenting opinion in United States v. Circuit Judges, 3 Wall. 679, 18 L. Ed.
114, holding that decree of the Circuit Court in a proceeding to settle pri-
vate land claim was subject to appeal ; United States v. Nourse, 6 Pet. 495,
497, 8 L. Ed. 476, 477, holding that there is no provision to authorize appeal
from judgment or decree of District Court to Circuit Court ; United States
V. Wonson, 1 Gall. 6, 7, Fed. Cas. 16,750, holding that no appeal lies from
District to the Circuit Court except in civil cases in admiralty and mari-
7Cr.U2-115 NOTES ON U. S. REPORTS. 600
time jnrisdiction and that a writ of error is proper proce3S in eommon-law
actions ; dissenting opinion in Ex parte Crane, 5 Pet. 204, 8 L. fid. 98» hold-
ing Supreme Court can compel circuit judge to sign bill of exceptions.
Appeal and writ of errox distininiished.
Approved in In re Soudan Mfg. Co., 113 Fed. 806, holding^ validity of
mortgage within four months of bankruptcy depends on notice of insol-
vency ; Wingfield v. Neal, 60 W. Va. 113, 116 Am. St. Rep. 882, 9 Ann. Gas.
982, 10 L. R. A. (N. S.) 443, 54 S. E. 49, holding appeal from Circuit to
Supreme Court was beginning of new action; Dower v. Richards, 151 U. S.
663, 38 L. Ed. 307, 14 Sup. Ct. 454, where the court held that the Supreme
Court cannot, upon a writ of error to the highest court of a State, review
its judgment upon a question of fact ; dissenting opinion in Ex parte Crane,
5 Pet. 205, 8 L. Ed. 98, following rule; Christiansen v. Farmers' Ware-
house Assn., 5 N. D. 445, 67 N. W. 302, where act providing that cases on
appeal shall be tried anew was construed; Bishop v. State, 43 Tex. 400,
where court considered the effect of errors not excepted to; dissenting
opinion in Day v. Holland, 15 Or. 470, 15 Pac. 859, holding that appeal
from decree did not break it up, that until annulled or reversed it was
binding; Carter v. Buchanan, 2 Ga. 339, holding writ of error will not lie
for errors committed upon trial of cause before petit jury, where appeal is
pending; Crane v. Reeder, 28 Mich. 535, 15 Am. Rep. 230, on ineaning of
words "trial" and "hearing."
Reqjoirements of statement of reasons oi^ appeal in equity case. Note,
Ann. Gas. 1914D, 522.
7 Ct. 112, 3 L. Ed. 286, WHEIAN y. UNITED STATES.
Seizure, for breach of Federal law, of vessel on waters navigable from sea
for vessels of ten or more tons burden, is admiralty cause, triable without Jury.
Cited in The Meteor, 17 Fed. Cas. 180, applying rule to libel of forfeiture
against vessel upon such waters; The Wave, Blatchf. & H. 240, Fed. Cas.
17,297, to point that violations of revenue laws in waters of bays, harbors,
etc., are in their nature cases of admiralty jurisdiction; United States v.
Arms and Ammunition, 24 Fed. Cas. 863, holding that jurisdiction in ad-
miralty includes cases of seizure and forfeiture on tide waters without as
well as within the United States.
Distinguished in dissenting opinion in Waring v. Clarke, 5 How. 486, 12
L. Ed. 247, majority holding that in cases of torts or collisions on the high
seas or within ebb and flow of tide, admiralty has jurisdiction, although it
was infra corpus comitatus.
7 Or. 113-115, 3 If. Ed. 286, UNITED STATES v. BBia EUZA.
Vessel inroceeding to foreign port in violation of embargo act is liable to
seizure on hex return.
Cited in The Brig Short Staple, 1 Gall. 110, Fed. Cas. 12,813, holding
that a restored vessel is within the prohibition of the third section of the
act of the 9th of January, 1808, chapter 6; Smith v. United States, 1 Gall.
501 UNITED STATES v. CROSBY. 7 Cr. 115-116
267, Fed. Cas. 13,122, holding that in debt for penalty under embargo act,
it need not be averred that vessel and cargo have not been apd could not
be seized ; Betz v. Maier, 12 Tex. Civ. App. 220, 33 S. W. 711, construing
words "trade or profession."
Distinguished in United States v. Woolsey, 28 Fed. Cas. 769, holding
that declaration need not aver arrival of vessel at foreign port; IngersoU
V. Jackson, 14 Mass. 110, where claimant was bona fide purchaser and pur-
chased vessel before it was seized.
7 Cr. 115-116, S If. Ed. 287, UNITED STATES Y. OBOSBY.
Title to land can be acquired and lost only in manner prescribed by law of
Iilace where land situated.
Approved in Olmsted v. Olmsted, 216 U. S. 393, 26 L. R. A. (N. S.) 1292,
54 L. Ed. 533, 30 Sup. Ct. 292, holding courts of New York not required
to give effect to Michigan statute so as to vest in children of testator
legitimatized by such statute, property, title to which had already vested in
other legitimate children; Clarke v. Clarke, 178 U. S. .191, 44 L. Ed. 1031,
20 Sup. Ct. 875, holding courts of State where realty is situated alone have
right to appointment of guardian for nonresident minor; Williamson v.
Majors, 169 Fed. 764, 95 C. C. A. 186, construing deed of trust under laws
of State where land lay; 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. Luckman,
131 Fed. 617, applying rule in ^ecific performance of oral contract for
purchase of cows in exchange for farm; Postal Tel. Cable Co. v. Southern
Ry. Co., 122 Fed. 160, following State practice in determining compensa-
tion in condemnation proceedings; Norton v. House of Mercy, 101 Fed.
38^, construing rights tinder a will ; Deck v. Whitman, 96 Fed. 884, holding
in foreclosure. Federal courts conform to State statutes governing the
remedy; Crossett Lumber Co. v. Ffles, 104 Ark. 602, 149 S. W. 909, hold-
ing will executed in foreign State could not dispose of land in State con-
trary to policy of State; McLaughlin v. Sentman, 2 Penne. (Del.) 566, 47
Atl. 377, holding findings of fact of court of another State are not con-
clusive where such court had no jurisdiction ; Chidsey v. Brookes, 130 Ga.
220, 14 Ann. Cas. 975, 60 S. E. 530, holding title under foreign will coul4
pass only when will had been probated in State; Succession of Hasling,
114 La. 296, 38 South. 174, validity of will made in Louisiana by citizen
thereof devising land in Mississippi is tested by law of latter; Brine v.
Insurance Co., 96 U. S. 635, 24 L. Ed. 861, and Houghton v. Page, 2 N. H.
46, to point that deeds or devises are governed by the law of the place
where they are to be executed ; Vaughan v. Phebe, Mart. & Y. 24, 17 Am.
Dec. 779, holding decisions of State as to lands within it would not be ques-
tioned by any other tribunals; In re Zug, 30 Fed. Cas. 948, 16 N. B. R.
280, and Missouri etc. T. Co. v. Krumseig, 77 Fed. 40, 40 U. S. App. 620,
court saying in both cases that as to questions touching venire of realty,
Federal courts are governed by laws and decisions of local tribunals ; Doyle
V. Maguirei 38 Iowa, 412, court saying that this riile applies not only to
7 Cr. 116-116 NOTES ON U. S. REPORTS. 502
form and manner of conveyances, but to rights of parties and their capa-
city to contract; Chappell v. Jardine, 51 Conn. 66, holding that mortga^
of land at time within State of New York, but which on an adjustment
became part of Vermont, is governed by laws of New York ; Schley v. Pull-
man Car Co., 120 U. S. 680, 30 L. Ed. 791, 7 Sup. Ct. 732, where question '
was as to whether married woman joined with her husband in conveyance
within meaning of statute; Thompson v. Kyle, 39 Fla. 694, 63 Am. St.
Rep. 196, 23 South. 16, where married woman executed mortgage on land
in another State, although by law of her domicile she could not execute
mortgage; Hoadley v. Stephens, 4 Neb. 436, holding that deed in another
State was not admissible without evidence that it was executed. according
to its laws; Taylor v. Benham, 6 How. 273, 12 L. Ed. 149, to point that
necessity for recording sales depends entirely upon local laws; dissenting
opinion in Burbank v. Conrad, 96 U. S. 298, 24 L. Ed. 726, where court con-
sidered effect of conveyance without registration ; Klinck v. Price, 4 W. Va.
9, 6 Am. Rep. 269, holding that contract for loan secured by conveyance
executed in New York is governed by laws of that Staie; Allen v. Allen,
95 Cal. 199, 30 Pac. 215, holding right to redeem governed by laws
of State where land was situated; Bcntley v. Whittemore, 18 N. J. Eq.
373, holding preferential assignment, valid where made, to be void as to
lands situated in New Jersey; Sneed v. Ewing, 5 J. J. Marsh. 465, 22 Am.
Dec. 47 , Kerr v. Moon, 9 Wheat. 670, 6 L. Ed. 163, and Calloway v. Doe,
1 Blackf. 372, all holding will must conform to laws of State where realty
situated ; Eyre v. Storer, 37 N. H. 121, holding that in respect to wills, law
of place governed as to capacity to devise and forms necessary; Irving v.
McLean, 4 Blackf. 53, and Schultz v. Pulver, 11 Wend. 363, to point that
personalty is disposed of and distributed according to law of domicile;
Ross V. Ross, 129 Mass. 245, 37 Am. Rep. 322, holding that capacity of
succession or inheritance was determined by law of domicile ; De Vaugh v.
Hutchinson, 165 U. S. 670, 41 L. Ed. 829, 17 Sup. Ct. 462, where will devis-
ing real estate in District of Columbia was construed ; McCormick v. Sulli-
vant, 10 Wheat. 202, 6 L. Ed. 803, holding that probate of will of lands in
one State does not affect title of real property in another; Crusoe v. Butler,
36 Miss. 107, holding that will could not pass title to land situated in an-
other State unless admitted to probate there; Hutchinson v. State Bank,
12 Met. 424, where court said that, where it was necessary to make title
to real estate through an executor, it must be by letters from some pro-
bate court in that State; Wills v. Cowper, 2 Ohio, 128, where court said
that sale of realty, by an administrator without State authorizing it, is
inoperative; Heydock's Appeal, 7 N. H. 602, holding that executor was
liable for proceeds of the sale of land in another State as personalty;
Magill V. Brown, 16 Fed. Cas. 447, where question was as to validity of
charitable bequest; Seaman v. Cook, 14 111. 506, where court examined
statutes of New York to determine whether trust existed; Commercial
Bank v. Jackson, 7 S. D. 140, 63 N. W. 660, where deed and declaration
of trust were executed in Indiana, where transaction was void, and subse-
quently a new deed was executed in Illinois, where it was valid; Corrie's
Case, 2 Bland Ch. 499, discussing validity of marriages; Allen v. Allen, 95
603 SCHOONER EXCHANGE v. McFADDON. 7 Cr. 116-147
Cal. 196; 30 Pae. 214, to point that laws of State existing at time contract
made must be read as a part of contract ; Langdon v. Sherwood, 124 U. S.
82, SI L. Ed. 346, 8 Sup. Ct. 431, construing act giving judgment for con-
veyance of land same effect as conveyance ; United States v. Ames, 1 Woodl
& M. 80, Fed. Cas. 14,441, considering rights and remedies of United States
owning lands; Tarpey v. Desert Salt Co., 5 Utah, 212, 14 Pac. 340, dis-
cussing effect of want of attestation to deed.
Miscellaneous. Cited erroneously in United States v. Mackenzie, 26 Fed.
Cas. 1120.
Law governing construction of will of realty. Note, 11 Ann. Cas. 498.
Conflict of laws as to contracts relating to realty. Note, L. R. A.
1916A, 1012, 1020, 1021.
Law governing status of legitimacy. Note, 5 £. B. C. 763.
7 Cr. lie-147, 3 L. Ed. 287, SGHOONEB EXOHANaE v. McFADDON.
JnriBdlction of nation within its own territory is exclusive and absolute,^
and is susceptible of no limitation not Imposed by itself.
Approved in Paterson v. Bark Eudora, 190 U. S. 176, 47 L. Ed. 1007,
23 Sup. Ct. 823, holding 30 Stat. 755, relative to seamen's wages, applies to
seamen on foreign vessels shipped in American port; The Kestor, 110 Fed.
^7, holding 30 Stat. 755, relative to seamen's wages, applies to British sub-
i^ts shipping in American ports on British ships; Minnesota Canal &
Power Co. v. Pratt, 101 Minn. 229, 11 L. R. A. (N. S.) 105, 112 N. W. 404,
holding nation recognized no comity to prevent full control over waters
'within boundaries; dissenting opinion in Tucker v Alexandroff, 183 U. S.
^6, 457, 458, 46 L. Ed. 277, 278, 22 Sup. Ct. 207-209, majority holding for-
^^So. warship being constructed here was from beginning a foreign war-
ship; People v. Tyler, 7 Mich. 234, where defendant was indicted for a mur-
ver on American vessel, in foreign waters; People v. McLeod, 25 Wend.
^, 1 Hill, 417, 37 Am. Dec. 347, holding that British subject was liable to
^ proceeded against criminally in State of New York; The Chinese Exclu-
^OQ Case, 130 U. S. 604, 32 L. Ed. 1075, 9 Sup. Ct. 629, holding that act of
iA« "^^ 1, 1888, excluding Chinese laborers, was constitutional ; In re Debs,
^ tr. g^ 579^ 39 L. Ed. 1101, 15 Sup. Ct. 904, to point that United States
,1?^*^ txient had jurisdiction over every foot of soil within its territory,
•p ,*^'ti:j^gQig}ied in Watts & Co. v. Unione Austriaca Di Navigazione, 224
..' -^^1, holding admiralty court of neutral country had jurisdiction over
j*^*^ to enforce obligation between citizens of two foreign belligerents,
«i^^ discretion to refuse to exercise it.
'^^i.Tisdiction over sea. Note, 46 L. R. A. 275.
^ ^Xxisdictlon of court of action against foreign sovereign or foreign
State. Note, 14 Ann. Cas. 575.
^Xuisdiction of suit against foreign sovereign. Note, 16 L. B. A.
(N. S.) 276, 278.
^ti^sponsibility of soldiers and militiamen. Note, L. R. A. 1915A, 1143.
^iitervention. Note, 123 Am. St. Bep. 308.
7 Cr. 116-147 NOTES ON U. S. REPORTS. 604
War flUps entering port of a friendly power are exempted by consent of
that power from its jnxlsdictlon.
Approved in United States v. Cornell Steamboat Co., 202 U. S. 190, 50
L. Ed. 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; Workman v.
New York Mayor etc., 179 U. S. 666, 45 L. Ed: 322, 21 Sup. Ct. 217, holding
municipal corporations are within reach of admiralty process; Motherwell
V. United States, 107 Fed. 441, holding article IX of Russian treaty of 1832
does not authorize arrest of member of Russian navy, sent to form part of
unaccepted warship; Mason v. Intercolonial Ry., 197 Mass. 352, 125 Am.
St. Rep. 871, 14 Ann. Cas. 574, 16 L. R. A. (N. S.) 276, 83 N. E. 877, hold-
ing court had no jurisdiction over action for injuries against railway owned
by King of England and operated for public purposes; dissenting opinion
in Tucker v. Alexandroff, 183 U. S. 456, 459, 46 L. Ed. 277, 278, 22 Sup. Ct.
207, 209, majority reversing 107 Fed. 437, and holding warship being con-
structed here for foreign power is from beginning a foreign warship, and
deserter therefrom cannot be arrested here; United States v. Wong Kim
Ark, 169 U. S. 683, 684, 685, 686, 687, 42 L. Ed. 903, 904, 18 Sup. Ct. 470,
471, to point as to extent of jurisdiction of nation and exemptions from it ;
The Santissima Trinidad, 1 Brock, 497, Fed. Cas. 2568, holding that this
exemption is granted only on condition that sovereignty shall be respected ;
Walley v. Schooner Liberty, 12 La. 101, 32 Am. Dec. 115, holding that,
while Texas and Mexico were at war, Texas was to be regarded as sovereign
and her armed vessels entitled to our hospitality; The Pizarro v. Matthias,
19 Fed. Cas. 787, 789, holding that foreign ship of war is not liable to
arrest on process for wrongful collision; L'Invincible, 1 Wheat. 252, 4
L. Ed. 84, holding that courts cannot redress torts on the high seas by a
cruiser of foreign and friendly power; Lee v. E[aufman, 3 Hughes, 102,
Fed. Cas. 8191, holding that courts may take cognizance of actions affect-
ing personal property of savereign power under certain circumstances;
Wildenhus' Case, 120 U. S. 11, SO L. Ed. 567, 7 Sup. Ct. 387, and People v.
Tyler, 7 Mich 209, 74 Am. Dec. 706, to point that private ship entering
port of foreign country is subject to its laws ; United States v. Diekelman,
92 U. S. 525, 23 L. Ed. 745, holding that vessel visiting blockaded ports
assents to the conditions of blockade ; Brown v. Duchesne, 2 Curt. 372, Fed.
Cas. 2004, holding that patent laws were not intended to apply to a vessel
of a foreign friendly nation; Clarke v. New Jersey S. N. Co., 1 Storey,
542, Fed. Cas. 285, holding that in all proceedings in rem, when admiralty
had jurisdiction over thing, it was unimportant to whom it belonged ; United
States V. Wilder, 3 Sumn. 315, 316, Fed. Cas. 16,694, Briggs v. Light Boats,
11 Allen, 184, Long v. Tampico, 16 Fed. 494, 496, all proceedings to enforce
claims against government; Stanley v. Schwalby, 162 U. S. 270, 40 L. Ed.
965, 16 Sup. Ct. 761, holding no officer was authorized to waive the exemption
of the United States, dissenting opinion in United States v. Lee, 106 U. S.
235, 249, 251, 27 L. Ed. 187, 192, 1 Sup. Ct. 273, 280, 285, 286, discussing
liability of officers of United States ; Stanley v. Schwalby, 147 U. S. 513,
37 L. Ed. 261, 13 Sup. Ct. 420, an intervention by way of suggestion by
505 SCHOONER EXCHANGE v. McFADDON. 7 Cr. U6-147
United States attorney; Middlebrooks v. Springfield F. Ins. Co., 14 Conn.
308, discussing liability of stockholders of foreign corporation; The Wil-
lamette Valley, 62 Fed. 305, holding steamship of insolvent corporation in
possession of receiver was' not exempt from judicial process.
Distinguished in Johnson Lighterage Co. No. 24, 231 Fed. 366, 368, hold-
ing suit in rem for salvage services maintainable against vessel of foreign
government destined for public use; The Luigi, 230 Fed. 495, holding com-
ity did not require discharge of attachment on private, foreign vessel requi-
sitioned by government of home country as vessel of war; The Santissima
Trinidad, 7 Wheat. 352, 5 L. Ed. 471, holding that exemption of foreign
pubhc ships does not extend to their prize ships, or goods captured in vio-
lation of our neutrality ; United States v. Lee, 106 U. S. 209, 27 L. Ed. 178,
1 Sup. Ct. 251, where doctrine that the United States cannot be sued was
examined and reafi&rmed.
SoYerelgii granting ftee XMunage through bis dominions to foreign army
waives all Jurisdiction over troops during their passage.
Approved in Hamilton v. McClaughry, 136 Fed. 448, 449, upholding juris-
diction of court-martial during '* Boxer Uprising"; Motherwell v. United
States, 107 Fed. 444, 447, 448, 451, 452, 453, holding article IX of Russian
treaty of 1832 does not authorice arrest of member of Russian navy sent
to form part of unaccepted warship; dissenting opinion in Tucker v.
Alexandroff, 183 U. S. 459, 46 L. Ed. 278, 22 Sup. Ct. 209, majority re-
versing 107 Fed. 437, and holding warship being constructed here for for-
eign power is from beginning foreign warship, and deserter therefrom
cannot be arrested here; Dow v. Johnson, 100 U. S. 165, 25 L. Ed. 686,
holding that an oflficer during Rebellion was not liable for injuries from his
niilitary acts; Coleman v. Tennessee, 97 U. S. 515, 516, 24 L. Ed. 1122, hold-
ing the same.
^distinguished in Tucker v. Alexandroff, 183 U. S. 431, 46 L. Ed. 268,
^ Sup. Ct. 198, reversing 107 Fed. 437, and holding that warship being
^ostruQied here for foreign power is from beginning a foreign warship,
^d deserter therefrom cannot be arrested here.
, Q^exy, wlietlisr private ships entering foreign jtort become subject to local
^««<Uetion.
. *^*iiiguished in Ex parte Anderson, 184 Fed. 116, holding under treaty
^ "Norway, Norwegian vice-consul in American port had jurisdiction of
**^\?-er8y relating to discipline between master and crew of Norwegian
■ ^^^cUaneous. Cited in Percy Summer Club v. Astle, 110 Fed. 488, hold-
er, ^'^it involving right to exclusive fisheries involves public question in
L :te State may intervene; South Carolina v. Wesley, 155 U. S. 544, 39
"^^^ 264, 15 Sup. Ct. 231, to point that the Circuit Court ought not to •
^^^^ proceedings on mere suggestion of attorney general.
7 Cr. 147-152 NOTES ON U. S. REPORTS. 606
7 Cr. 147-152, 3 L* Bd. 297, FBEELAND y. HSBON.
Wlienj one sends an account current to another in different country, wlio
keeps it two years without objections, It is stated account.
Approved in Patillo v. Allen- West Com.. Co., 131 Fed. 688, 66 C. C. A.
608, where complaint stated facts from which presumption of promise to
pay balance of account stated arose, amendment adding averment of prom-
ise to pay balance of stated account presented no new cause of action;
Langdon v. Roane, 6 Ala. 627, 41 Am Dec. 62, holding that party receiving
account must examine it, and if he remains silent it; becomes account
stftted; Bainbridge v. Wilcocks, 1 Bald. 540, Fed. Cas. 766, and Baker v.
Biddle, 1 Bald. 418, Fed. Cas. 764, both holding that if account is retained
an unreasonable time without objection it becomes stated account; Swayze
v. Swayze, 37 N, J. Eq. 188, where matters were equally within knowledge
of both men and settlement was- allowed to stand for five years ; Baxter v.
Waite, 2 Wash. Ter. 238, 6 Pac. 431, where court considered as to whether
account stated was created by estoppel and reviewed instructions upon ques-
tion ; Lockwood v. Slevin, 26 Ind. 135, to point that there is acqiiiescence in
an account if no objection is made after several opportunities ; ; Chapman v.
Lee, 47 Ala. 166, where court considered relevancy of evidence to prove ac-
count .stated ; Anding v. Levy, 57 Miss. 63, 34 Am. Bep. 437, where court
said rule as to stated accounts applied only in controversies between mer-
chants; Shepard v. Bank of State of Missouri, 15 Mo. 161, holding that
there is no reason why same doctrine should not apply to other persons;
Lockwood v. Thome, 11 N. Y. 174, 62 Am. Dec. 83, holding account stated
need not be signed; Watson v. Lyle, 4 Leigh (Va.), 249, where question
was as to whether account was barred; Roberts v. Totten, 13 Ark. 616,
to point that settled accounts may be impeached for fraud or mistake;
Marye v. Strouse, 6 Sawy. 212, 6 Fed. 491, where court said that an ac-
count stated could not be opened because of an item of interest not recov-
erable; Towns V. Birchctt, 12 Leigh (Va.), 193, to point that retaining
account did not conclude one from surcharging and falsifying it; St. Louis
V. Alexander, 23 Mo. 526, holding that, in bill to open settled account, it
is not sufficient to allege generally that it is erroneous; Porter v. Price,
80 Fed. 660, 49 U. S. App. 304, refusing to reopen an account stated for
alleged error in compounding interest thereon; Allen-West Com. Co. v.
Patillo, 90 Fed. 631, holding account stated, unobjected to for two years,
cast upon defendant burden of showing certain commissions charged to be
error.
Accounts stated. Notes, 62 Am. Dec. 88; 136 Am. St. Bep. 44.
Wliat constitutes account stated. Note, 27 L. R. A. 822.
Effect of retaining statement of account to render it an account stated.
Note, 29 L. R. A. (N. S.) 337, 344.
What may be recovered on a stated account. Note, 1 £. R. 0« 431.
507 NOTES ON U. S. REPORTS. 7 Cr, 152-159
7 C^. 15^156, 3 !■. Ed. 299, WELCH y. MANBEVIUJES.
Motion to reinstate case dismissed is an application to discretion of court,
tt4 Its refusal is not ground for error.
Approved in Edward P. Allis Co. v. Standard Nat. Bank, 113 Fed. 48, fol-
lowing rule, Trice v. Smith, 6 Yerg. 320, and Marsh v. Graham, 6 Iowa, 78,
ooth holding that writ of error will not lie on refusal to reinstate after volun-
^a/y nonsuit; Ringgold's Case, 1 Bland Ch. 9, to point that there can be no
writ of error for refusal to reinstate after nonsuit or dismissal ; Andrews v.
Central Nat. Bk., 77 Md. 27, 25 Atl. 917, where there was dismissarby legal
plaintiff and motion by equitable plaintiff to reinstate; Hazleton etc. Co. v.
Citizens' St. Ry. Co., 72 Fed. 328, holding that, after direction for decree
stranger will not be given leave to file supplemental bill ; Welch v.^ County
Court, 29 W. Va. 68, holding doctrine that discretionary matters will not
be reviewed must be limited to matters purely of discretion, or such as
cannot do injury; Stephenson v. Mansony, 4 Ala. 320, holding an order,
striking a cause from docket, was not revisable; State v. Hunt, 4 La. Ann.
439, appeal from order overruling an application for new trial; Carlisle v.
Wilkinson, 12 Ind. 96, where motion was made to set aside default; State
V. Brette, 6 La. Ann. 660, holding court will not re-examine a decision upon
a question of fact.
Distinguished in Gilliland y. Rappleyea, 15 N. J. L. 143, where court
said that error might be assigned on such intermediate proceedings not
apparent of record as show final judgment to be erroneous.
7 Or. 156-159, 3 L. Ed. 300, MABSTELUSB V. McLEAN.
Replication should contain full and complete answer to bar, and Joint plea
wMch Is bad affects with Its consequences all parties Joining in it.
Cited in Kerr v. Force, 3 Cr. C. C. 33, Fed. Cas. 7730, upon the qualities
of a replication; Taylor v. Benham, 5 How. 263, 12 L. Ed. 145, holding
that any special excuse for not suing within the statutory time should be
set up in the original bill or by amendment to it; Ferrall v. Bradford, 2
I^a. 519, 50 Am. Dec. 800, Marsh v. Smith, 18 N. H. 369, and Poulk v.
Slocum, 3 Blackf . 429, to point that where several defendants join in plea,
if it is bad as to one it is bad as to all.
•All parties In a suit must be competent to sue, otherwise tlie action cannot
^ AQPPorted.
approved in Davis v. Collins, 174 U. S. 725, 43 L. Ed. 1150, 19 Sup.
^' 835, applying principle to suit in ejectment by tenants in common;
^prria v. Wheat, 8 App. D. C. 385, to support recovery in ejectment all
joittt tenants must be able to recover; Beck v. Ashland Cigar & Tobacco
^^ 14:6 Wis. 328, Ann. Cas. 19120, 239, 130 N. W. 466, holding life tenant
?i *'^»nainderman could join in ejectment; Pringle v. Gaw, 5 Serg. & R.
^> holding that, if widow join with heirs in ejectment, the heirs* cannot
'^.^^xr alone.
.?.^^^nguished in Lytle v. State, 17 Ark. 652, 659, holding that the dis-
,/^^y of one of several coplaintiffs operated neither to advantage nor
^^^'^^ntage of the others.
7 Cr. 156-159 NOTES ON U. S. REPORTS. 508
When once statute of limitatlona nuui against one of two parties entltlea
to Joinit* action, it operates as bar to snch action, notwithstanding disability or
the first party.
Approved in Davis v. Coblens, 12 App. D. C. 60, holding bar of limitation
against one joint tenant in ejectment barred all; Pickens v. Stout, 67
W. Va. 440, 68 S. E. 362, holding disability of one cotenant did not avail
others to avoid bar of limitation; Russell v. Tennant, 63 W. Va. 634, 129
Am. St. Rep. 1024, 60 S. E. 613, holding limitations did not rup against
joint tenant by reason of possession by cotenant and stranger; Dickey v.
Armstrong, 1 A. K. Marsh. 41, holding that in joint estate, if right of
entry is tolled as to some, all are barred; Hardeman v. Sims, 3 Ala. 751,
holding it was settled rule that where joint right of action accrued it must
exist in all at time the action is brought; Keeton v. Keeton, 20 Mo. 544,
holding that one party who is saved can obtain no relief upon bill jointly
with others who are barred; Allen v. Farrington, 2 Sneed, 534, holding
that an action, barred as to one partner, is barred as to nonresident part-
ner; dissenting opinion in Chase v. Henry, 166 Mas. 582, 65 Am. St. Bei».
426, 44 N. E. 989, court presuming it would make no difference that one
of parties lived out of the State; Turner v. Debell, 2 A. K. Marsh. 384,
holding that, if one executor was barred from suing, the other was barred ;
Jordan v. McKenzie, 30 Miss. 35, where the principle was applied, in an
action by distributees, to set aside an unauthorized sale ; Shannon v. Dunn,
8 Blackf. 183, holding that it is no answer to the plea of statute to writ
of error that within five years after one of plaintiffs arrived at age it was
prosecuted ; State v. Wilson, 3 Harr. 356, holding husband of a legatee^ may
appeal and right is barred in three years after marriage, although wife
was an infant; Layton v. State, 4 Harr. 20, where legatee married and
was under coverture when she attained full age and a suit was brought
by husband and wife within three years afterward; Peters v. Jones, 35
Iowa, 519, and Henry v. Stewart, 2 Hill, 333, both holding that the
minority of one party vrill not save those who are of full age; Griffith v.
Huston, 7 J. J. Marsh. 390, holding that disability of one parcener did
not waive right of €ntry of others; Barrow v. Navee, 2 Yerg. 227, 228,
holding that upon joint demise by tenants in common, if' one is barred it
is not bar to all, contra in personal actions where all are compelled to join ;
Ridon v. Frion, 3 Murph. (N. C.) 578, court sa3ring that the parties who
are competent ought to take care of interests of all ; Doe v. Kennon, 1 Ga.
380, to point that where statute has begun to run its operation is not
arrested even where there is legal impossibility to assert right; Gross v.
Disney, 95 Tenn. 596, 32 S. W. 633, considering what one relying upon
disability must allege; Buel v. St. Louis Transfer Co., 45 Mo. 564, discuss-
ing relation of amendment to pleading.
Distingbished in United States v. O'Leary, 8 Mackey (D. C), 132, hold-
ing plea sustainable against one of beneficiaries of guardian's bond without
affecting rights of others; Doe ex dem. v. Barksdale, 2 Brock. 445, Fed.
Cas. 8317, saying principal case rested not upon rights of parties, but
form of the pleading; Shipp v. Miller, 2 Wheat. 324, 4 L. Ed. 251, where
•court drew distinction between saving clause in statute of limitations and
609 WELCH V. UNDO. 7 Cr. 159-164
that nnder statute requiring entries of land to be surveyed by certain time;
University of Vermont v. Reynolds, 3 Vt. 557, 23 Am. Dec. 241, where
ejectment brought under charter from the State making a grant of land;
Moore v. Armstrong, 10 Ohio, 14, 36 Am. Dec. 64, the court saying that
in principal case interest was joint, while in case under consideration
interest was several and distinct; Weare v. Burge, 10 Ired. 171, holding
that where only one of several tenants in common of negro sued in tort,
statute could not operate upon him, though it might as against all of his
eotenants; said to be neutralized by Doe ex dem. v. Barksdale, in Jordan
r. Thornton, 7 Ga. 524, 626, holding that where one of two or more co-
tenants was barred, those within the exception may recover; Hill v. Wil-
son, 4 Rich. 528, 55 Am. Dec. 700, holding that successive minorities of
eotenants will protect .the interests of adults; Wilkins v. Philips, 3 Ohio,
50, 17 Am. Dec. 579, holding that where one party to a writ of error is
within saving clause case was saved as to all; Sturges v. Longworth, 1
Ohio St. 562, holding that where interests of two defendants are joint,
disability of one inures to benefit of other ; Shute v. Wade, 5 Yerg. 10, and
Masters v. Dunn, 30 Miss. 269, 270, 272, both holding that, if all be under
disability to sue, statute will not conmience running until disability of all
be removed.
Disabilities exempting from statute of limitation. Kote, 36 Am. Dec.
77.
Disability of one of several parties to an action or proceeding. Note,
49 Am. St Rep. 712.
7 Cr. 159-164, S L. Ed. 301, WELCH v. UNDO.
Poesession of note by one who had assigned it to another is not evidence
that It was property of possessor.
Cited in Hunt v. Stewart, 7 Ala. 527, holding action by indorser cannot
be supported; Greenhough v. Keyworth, 30 Fed. Cas. 1087, holding that
where note was indorsed for collection indorser may sue; McCormick v.
Eckland, 11 Ind. 294, to point that, if note is in hands of an indorser,
presumption is that assignment never was completed; Mitchell v. Fuller,
15 Pa. St. 270, 63 Am. Dec. 595, holding note specially indorsed cannot be
recovered on by anyone but special indorsee; Davis v. Christy, 8 Mo. 571,
holding that the erasure of the assignment on a bond did not reinvest title
in assignor; Robson v. Early, 1 Mart. (N. S.) 374, holding that possession
w not evidence of property in note which, on inspection^ appears to be
another's.
Distinguished in dissenting opinion in Wood v. Barthoud, 4 J. J. Marsh.
^^f an action by an intermediate assignor; Bell v. Morehead, 3 A. K.
f^^rsh. 161, holding that an assignor of a note negotiated in bank, acquir-
"^ possession, is prima facie the owner; said to be overruled in principle
^^ ^Ugan V. United States, 3 Wheat. 172, 4 L. Ed. 862 ; Norris v. Badger,
; ^o^^ 455^ holding that an intermediate indorser may sue a previous
^^oi^^j.. Kells V. Northwestern Livestock Ins. Co., 64 Minn. 393, 58 Am.
^ ^p. 544, 67 N. W. 216, where court said that the weight of authority
7 Cr. 164r-167 NOTES ON U. S. REPORTS. 610
•
is that possession by the payee of note specially indorsed is prima facie
evidence of ownership; Hanna v. Pegg, 1 Blackf. 186, approving doctrine
of Dugan v. United States, 3 Wheat. 172, 4 L. Ed. 362, and holding aix
assignee regaining possession is prima facie owner.
Under Indorsement of note without recourse, it cannot be Inferred tbat
nominal value of note was actually paid.
Cited in Watson v. Chesire, 18 Iowa, 205, 209, 87 Am. Dec. 384, 387,
holding that it will not protect assignor from liability for fraud in assi^n-
.ment; Cowles v. Harts, 3 Conn. 522, where payees of a bill indorsed it,
"Pay G. C, or order, without recourse to us.'*
Indorsement '* without recourse.'' Note, 87 Am. Dec. 890.
Miscellaneous. Cited erroneously in Bates v. Kimball, 2 D. Chip. 89.
7 Cr. 164-167, 3 L. Ed. 303, STATE OF NEW JERSEY v. WILSON.
Writ of error may be directed to a judgment of State court ftom tlia
Supreme Court of the United States.
Cited in Wurts v. Hoagland, 105 U. S. 702, 26 L. Ed. 1110, court saying
that this was course adopted in the principal case, and discussing time of
service of a writ of error.
Contract by State, exempting property ftom taxation, is vaUd and cannot
be abrogated by subsequent repeal of statute granting exemption.
Approved in Choate v. Trapp, 224 U. S. 676, 56 L. Ed. 946, 32 Sup. Ct.
565, holding tax exemption in patents for Indian allotments did not fall
with removal of restrictions on alienation ; Great Northern R. Co. v. Minne-
sota, 216 U. S. 233, 54 L. Ed. 460, 30 Sup. Ct. 344, holding void statute
taxing gross earnings of railroad in lieu of other taxation when property
thus exempted was not exempted by Constitution; Grand Canyon R. Co. v.
Treat, 12 Ariz. 78, 79, 95 Pac. 190, holding benefit of exemption extended
to successors in interest on foreclosure sale of railroad; Bennett v. Nichols,
9 Ariz. 146, 80 Pac. 394, upholding statute exempting railroad from taxa-
tion for twenty years after construction; Colorado Farm ^tc. Co. v. Beer-
bohm, 43 Colo. 479, 96 Pac. 448, holding void act of 1902 relating to public
revenues so far as it sought to tax lands exempted on sale by State; Wells
v. Savannah, 107 Ga. 3, 32 S. E. 669, refusing to imply perpetual exemp-
tion from tax exemption ; State v. Great Northern .Ry. Co., 106 Minn. 326,
319 N. W. 207, holding increase of gross earnings tax did not impair obliga-
tion of contract; Morris Canal & Banking Co. v. State Board of Assessors,
76 N. J. L. 629, 71 Atl. 329, holding under terms of charter lease of canal
waived exemption from taxation; Skaneateles W. W. Co. v. Skaneateles,
161 N. Y. 167, 55 N. E. 565, applying rule of inviolability of contracts to
grant of municipal franchise; dissenting opinion in Jobe v. Caldwell, 93
Ark. 520, 125 S. W. 429, to point that statute could not affect contract
made by State in erecting State building; dissenting opinion in State v.
Cantwell, 142 N. C. 616, 9 Ann. Cas. 141, 8 L. R. A. (N. S.) 498, 55 S. E.
824, majority holding statute exempting members of fire-engine company
5U STATE OF NEW JERSEY v, WILSON. 7 Cr. 164^-167
from jury duty was not contract ; dissenting opinion in Freeport Water Co.
V, Freeport, 180 U. S. 608, 46 L. Ed. 692, 21 Sup. Ct. 501, arguendo;
Northern Pac. R. R. Co. v. Garland, 5 Mont. 187, 3 Pac. 155, holding that
Congress could exempt railroads from taxation; Jefferson Branch Bank v.
Skelly, 1 Black, 446, 17 L. Ed. 178, holding that State may contract not to
exercise taxing power; Matheny v. Golden, Treasurer, 5 Ohio St. 366, where
act leasing land to university and providing it should be exempt was held
valid; Erie Ry. Co. v. Pennsylvania, 21 Wall. 498, 22 L. Ed. 598, court
saying language must be clear and unmistakable; Bradley v. McAtee, 7
Bush (Ky.), 673, 3 Am. Bep. 313, holding taxing, power is never presumed
to be relinquished and that State is never bound unless there is some duty
imposed; State v. County Court o^ Crittenden Co., 19 Ark. 367, 372, 374,
holding that lands exempted from taxation for certain time cannot le
subject to taxation; Gonzales v. Sullivan, 16 Fla. 812, First Division of St.
Paul etc. Ry. Co. v. Parcher, 14 Minn. 326, State v. Georgia R. R. etc. Co.,
54 Ga. 426, and Hewitt v. New York etc. R. R. Co., 12 Blatchf. 459, 460,
Fed. Cas. 6443, all holding an act exempting property of a railroad to be a
contract; Osborne v. Humphrey, 7 Conn. 342, holding that an act exempt-
ing land given to pious uses was a contract; Grand Lodge F. & A. M. v.
New Orleans, 166 U. S. 146, 41 L. Ed. 952, 17 Sup. Ct. 524, holding act
exempting hall occupied by Masons "so long as they occupied'' it, was not
contract; Franklin St. Society v. Manchester, 60 N. H. 350, to point that
an agreement exempting property from taxation on consideration paid is
contract; Tucker v. Ferguson, 22 Wall. 573, 22 L. Ed. 815, holding that
an act exempting a railroad was not a contract unless there was considera-
tion; Home of the Friendless v. Rouse, 8 Wall. 438, 19 L. Ed. 498, to point
that an exemption is presumed to be on a sufficient consideration; Wash-
ington Univ. V. Rowse, 42 Mo. 318, holding that act exempting property
without any consideration might be repealed; Tomlinson v. Jessup, 15
Wall. 458, 21 L. Ed. 206, holding that where charter was amended so as to
exempt its property, subsequent statute making all property subject, was
valid; Landon v. Litchfield, 11 Conn. 262, holding that the repeal of an
act exempting church property violated the obligation of a contract ; State
Bank V. Knoop, 16 How. 385, 401, 14 L. Ed. 984, 990, where an act fixed
the tax a bank should pay and an act increasing this amount was held
void; Iron City Bank v. City of Pittsburg, 37 Pa. 344, holding that if the
/eg^islature prescribes a rate of taxation a subsequent tax law is void;
State V. Commissioners of Taxation, 37 N. J. L. 2i51, holding that a cor-
poration with a charter providing a special mode of taxation may consent
to another mode without impairing its exemption; Knoxville etc. R. R.
^o- V. Hicks, 9 Baxt. 445, holding that an exemption granted a railroad
IP^se^ to the purchaser; State ex rel. Gaines v. Whitworth, 8 Lea, 604,
. '**^'e court said the exemption will not extend to a grantee unless the
[J^^tion is evinced beyond reasonable doubt; Brainard v. Colchester, 31
®^n. 410, holding that an act that land leased or conveyed by a society
J^^til^ be taxed, was valid; Appeal Tax Court v. Patterson, 50 Md. 372,
oiaii^r that contract of exemption is limited to State granting it; Salt
^' V. East Saginaw, 13 Wall. 376, 20 L. Ed. 613, holding that a law offer-
7 Cr. 164-167 NOTES ON U. S. REPORTS. 512
ing a bounty for salt manufactured and exempting the property from taxa-
tion was a mere gratuity; East Saginaw Mfg. Co. v. East Saginaw, 19 Midi.
293, where an act exempting corporations engaged in manufacture of salt
was amended by limiting the exemption; State v. Branin, 23 N. J. L. 492,
500, holding that exemption of a corporation extends to the stockholders;
Brewster v. Hough, 10 N. H. 145, holding that a resolution exempting
property of Dartmouth College was terminated by adoption of the Con-
stitution and the laws passed under it ; Coney v. Owen, 6 Watts, 438, hold-
ing that a sale for taxes of unseated donation land during the life of the
soldier was void; Given v. Wright, 117 U. S. 649, 653, 29 L. Ed; 1022. 1024,
6 Sup. Ct. 908, 910, where lands held to be exempt in the principal case
w^re assessed ; State v. Wright, 41 N. J. L. 481, holding that by voluntary
payment for many years right of exemption was waived; Bonaparte v.
Camden & Amboy R. R. Co., 1 Bald. 220, Fed. Cas. 1617, to point that
rights vested by contract cannot be impaired; Winter v. Jones, 10 Ga.
196, 54 Am. Dec. 382, holding that an objection that a law impairs the obli-
gation of a contract does not depend upon the extent of the change; dis-
senting opinion in Scobey v. Gibson, 17 Ind. 578, holding that act provid-
ing for redemption of realty was void as to prior contracts; Temple v.
Hays, Morris, 12, holding that statute declaring that fraud may be set
up against note does not apply to note assigned before; Martindale v.
Moore, 3 Blackf. 279, holding that statute that no mispleading or lack of
pleading should render any executor personally liable did not apply to
judgment rendered previously; Corbin v. Board of County Commissioners,
1 McCrary, 527, 3 Fed. 362, holding a statute for the return of money
paid by purchasers at invalid tax sales to be contract when acted on;
Danolds v. State, 89 N. Y. 45, 46, 42 Am. Rep. 280, and PoindextB^^ v.
Greenhow, 114 U. S. 286, 29 L. Ed. 191, 5 Sup. Ct. 912, to point that
State cannot violate the obligation of its own contracts; Hawkins v. Fil-
kins, 24 Ark. 319, holding that a State convention could not violate the
obligation of contracts; Howard v. Jones, 50 Ala. 69, to jwint that larws
in force at making of contract enter into and become part of it; McElvain
V. Mudd, 44 Ala. 76, to point that State cannot assail contract by repeal
of law on which it stands ; Bruce v. Schuyler, 4 Gil. 278, 46 Am.' Dec. 460,
holding that rights of purchaser under revenue law to deed cannot be
taken away by repeal of statute; People ex rel. McLane v. Bond, 10 Cal.
572, holding that an act funding debt could not be substantially changed;
dissenting opinion in Antoni v. Greenhow, 107 U. S. 802, 27 L. Ed. 481, Lynn
v. Polk, 8 Lea, 305, and Antoni v. Wright, 22 Gratt. 841, 852, 858, 872," all
holding that an aci^roviding that coupons shall be receivable in payment
of taxes could not be affected ; dissenting opinion in In re Ayers, 123 U. S.
515, 31 L. Ed. 233, 8 Sup. Ct. 188, holding that act of Virginia of 1877,
concerning suits to collect taxes from persons who had tendered coupons, did
not violate the contract ; dissenting opinion in Mayre v. parsons, 114 U. S.
336, 29 L. Ed. 209, 5 Sup. Ct. 966, holding that contract right of a coupon-
holder under Virginia act of March 30, 1871, can be exercised only by
taxpayer; English v. Oliver, 28 Ark. 334, holding that tax laws in force
when bonds were issued are still in force for the purpose of paying the
513 STATE OF NEW JERSEY v. WILSON. 7 Cr. 164-167
bonds, althongh repealed; Louisiaiia v. Jumel, 107 U. S. 750, 27 L. Ed. 462,
where court considered effect of constitutional amendment upon rights of
bondholders; Von Hoffman v. City of Quincy, 4 Wall. 550, 554, 18 L. Ed.
408, 410, holding that a statute repealing the power of taxation so as to
affect mnnieipal bonds is. void; County Commissioners v. Eling, 13 Fla.
474, holding that where coupty issues bonds, legislature cannot limit
amount of taxes to be levied; State v. Young, 29 Minn. 538, 9 N. W. 747,
holding where State had issued bonds, amendment providing that no tax
should be levied until submitted to the, people was void; Commissioners'
Court of Limestone Co. v. Rather, 48 Ala. 447, holding that bonds issued
by a county under an act created obligations, x>ayment of which would be
enforced by mandamus; Bobertson v. Commissioners of State Land Office,
44 Mich. 278, 6 N. W. 661, to point that a State selling lands is in the same
position as any other proprietor; Houston etc. R. R. Co. v. Kuechler, 36
Tex. 434, to point that legislative grant is contract; Proprietors etc. v.
Haskell, 7 Me. 477, to point that grant is contract and rights under it
cannot be divested; Davis v. Gray, 16 Wall. 232, 21 L. Ed. 457, to point
that a railroad land grant was contract; City of Brownsville v. Basse, 86
Tex. 501, to point that an act in nature of a public grant cannot be re-
pealed; Thorpe v. Rutland & B. R. R. Co., 27 Vt. 146, 62 Am. Dec. 629,
holding that grant to be irrevocable must be based on a consideration;
Floyd V. Blanding, 54 Cal. 46, holding that an act providing for disposition
of lands of State known as the Waterlot act, was not contract ; People v.
Piatt, 17 Johns. 215, 8 Am. Dec. 389, holding t)iat under a patent to land
bordering on Lake Champlain and on river without any reservation,
patentee fias exclusive rights; Micou v. Tallassee Bridge Co., 47 Ala. 656,
holding that an act incorporating company with authority to erect a toll
bridge was a contract; Gray v. Davis, 1 Woods, 423, 424, Fed. Cas. 5715,
holding an act incorporating a railroad and making a grant to it on certain
conditions to be a contract; Montgomery v. Kasson, ^6 Cal. 194, holding
that an act for construction of canals and reclaiming of lands was a con-
tract and repealing act was void ; Glover v. Powell, JLO N. J. Eq. 229, hold-
ing an act granting, on sufficient consideration, the right to maintain dam
was contract; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 69,
holding grant of an exclusive right to maintain bridge was franchise; En-
field Toll Bridge Co. v. Connecticut River Co., 7 Coin. 48, holding that
a grant to construct locks was exclusive ; New Orleans Gas Co. v. Louisiana
Light Co., 115 U. S. 665, 673, 29 L. Ed. 522, 524, ,6 Sup. Ct. 260, 264,
holding that legislative grant of an exclusive right to furnish gas could
not be impaired; East Hartford v. Hartford Bridge Co., 17 -Conn. 93, hold-
ing, an act giving an exclusive right to transport passengers to be con-
stitutional; Charles River Bridge v. Warren Bridge, 7 Pick. 446, holding
grant of a ferry privilege a contract; Langdon v. Mayor etc. of New York,
93 N. Y. 157, holding grant; of right of wharfage carries right of way to
wharf, and that easement could not be impaired; Trustees etc. v. Rider,
13 Conn. 96, holding act giving to church a percentage of funds received
was not contract; Boyd v. State, 46 Ala. 334, holdiing that where an act
granted an association the right to carry on lottery, rights under it could
I — 33
7 Cr. 164-167 NOTES ON U. S. REPORTS. 614
not be defeated; Doe ex dem. Gaines v. Buford, 1 Dana, 488, holding an
act f orf eitiag lands unless certain improvements are made was void ; Pierce
V. Kitzmiller, 19 W. Va. 573, to point that legislatures are not inhibited
divesting vested rights unless rights are vested by contract; Bailey v.
Philadelphia etc. R. R. Co., 4 Harr. 401, 44 Am. Dec. 603, holding that
where an act gave right to a closed bridge, a subsequent act giving an action
for obstruction to navigation was void; Commonwealth v. Pennsylvania
Canal Co., 66 Pa. St. 50, 5 Am. Rep. 341, holding an act requiring a canal
company to change its dams at its own cost to be void; McLaren v. Pen-
nington, 1 Paige Ch. 108, Chesapeake & Ohio Canal Co. v. Baltimore &
Ohio R. R. Co., 4 Gill. & J. 128, and Young v. Harrison, 6 Ga. 154, all
holding that charter is contract and cannot be altered; State v. Noyes,
47 Me. 206, holding that such charter was to be construed upon the same
principles which are applied to contracts ; West River Bridge Co. v. Dix,
6 Howl 542, 12 L. Ed. 649, holding that charter to bridge corporation was
contract but subject to right of eminent domain ; dissenting opinion in
State V. Matthews, 3 Jones (N. C), 464, and Pearsall v. Great Northern
Ry. Co., 161 U. S. 662, 40 L. Ed. 848, 16 Sup. Ct. 709, discussing the in-
violability of a charter; Le Clercq v. Town of Gallipolis, 7 Ohio, 221, 28
Am. Dec; 643, to point that franchises held by a corporation cannot be
revoked unless for forfeiture; Michigan State Bank v. Hastings, 1 Doug.
234, 41 Am. Dec. 551,' holding that repeal of charter which contained no
reservation of a right of repeal, was void ; Young v. Harrison, 6 Qa. 155, to
point that charter granted without consideration and before its execution
may bo repealed; Planters' Bank v. Sharp, 6 How. 332, 12 L. Ed. 460,
where, after a bank had been chartered, a statute forbade banks to trans-
fer any note or bill; Clark v. Mitchell, 64 Mo. 582, holding that in times
of peace Congress cannot confiscate debts; Armington v. Town of Barnet,
15 Vt. 751, 40 Am. Dec. 708, holding an act authorizing the taking of a
franchise of a turnpike corporation for public use to be valid; Saginaw
G. L. Co. V. Saginaw, 28 Fed. 532, discussing jurisdiction of Federal courts ;
United States v. Arredondo, 6 Pet. 738, 8 L. Ed. 566, construing treaty
with Spain in 1819, relative to land in Florida, and act of Congress to
adjust claims; dissenting opinion in Farris v. Vannier, 6 Dak. 213, 42
N. W. 41, holding ^lat an act taxing personalty in any unorganized county
in the nearest organized county is invalid; McCuUough v. Virginia, 172
U. S. 119, 43 L. Ed. 388, 19 Sup. Ct. 134, in an incidental reference to
cases where Supreme Court had reviewed State court decisions.
Distinguished in Jetton v. University of the South, 208 U. S. 503, 52
L. Ed. 590, 28 Sup. Ct. 375, holding exemption did nof extend to interest
of lessee ; Schock v. Sweet, 45 Okl. 57, 64, 145 Pac. 390, 392, Allen v. Trim-
mer, 45 Okl. 99, 144 Pac. 800, and Gleason v. Wood, 28 Okl. 513, 114 Pac.
708, all holding Indian lands from which restrictions were removed be-
came subject to taxation; 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 grafted to original cor]3oration ; McCallie v. Mayor etc. of
Chattanooga, 3 Head, 320, holding act for extension of town limits was not
515 KING V. RIDDLE. 7 Cr. 16g-17J
contraet; Debolt v. Ohio Life Assor. Co., 1 Ohio St. 589, holding that pledge
to bank to surrender right of taxation would not be binding ; Armstrong v.
Athens Co., 16 Pet. 289, 10 L. Ed. 968, where an act taxing certain landB
held under conveyances from Ohio University was held valid ; Town of New
Hampshire v. Sheffield, 30 Conn. 174, Armstrong v. Treasurer of Athens
Co., 10 Ohio, 246, and Commissioners etc. v. Brackenridge, 12 Kan. 119«
all holding exemption from taxation did not Extend to purchaser; Green-
how v. Vashon, 81 Va. 345, holding that under an act providing that cou-
pons are receivable for taxes, such coupons could not be used for school
taxes; dissenting opinion in Landon v. Litchfield, 11 Conn. 268, 270, 272,
where an act exempting church property was repealed; Hanna v. Com-
missioners of Allen Co., 8 Blackf. 356, holding an act exempting lands
sold by State until payment, did not prevent their being taxed afterward ;
Toledo Bank v. Bond, 1 Ohio St. 670, and Dartmouth College v. Woodward,
1 N. H. 132, both holding that charter of corporation is not contract ; Mat-
ter of Meador, 1 Abb. (U. S.) 327, Fed. Cas. 9375, discussing distinction
between power of taxation and of eminent domain; Morgan v. Louisiana,
93 U. S. 223, 23 L. Ed. 862» holding that immunity from taxation is not
itself a franchise of a railroad corporation; Providence Bank v. Billings,
4 Pet. 563, 7 L. Ed. 956, where a legislature granted a charter to bank
and an act subsequently imposing tax on banks was held constitutional;
State V. Morgan, 28 La. Ann. 487, 493, holding that a right of exemption
was not transferable; Herrick v. Randolph, 13 Vt. 531, holding that act
taxing buildings on public lands was valid; Dale v. The Governor, 3 Stew.
396, 418, 423, holding that an act conferring a military title and settling
an annuity created no contract; limited in East Saginaw Mfg. Co. v. East
Saginaw, 19 Mich. 282, 2 Am. Rep. 91, where court said principal case may
well be referred to an exercise of the treaty-making power; Rhode Island
V. Massachusetts, 12 Pet. 744, 9 L. Ed. 1268, bill by one State against an-
other to quiet title to boundaries; denied in Mott v. Pennsylvania R. R.
Co., 30 Pa. St. 29, 72 Am. Dec. 675, holding that legislature cannot grant
exemption from taxation forever; Webster v. Reid, Morris, 478, doubting
the power to exempt from taxation, the court saying the principal case
went to the verge of judicial power.
Exemptioa from taxation or assessments of lands owned by govern-
mental bodies or in which they have an interest. Note, 132 Am.
8t. Rep. 348.
Power of State legislature to exempt from taxation. Note, 19 L. Rw A.
77.
Corporate taxation as affected by contract clause in Federal Constitu-
tion. Note, 60 L. R. A. 38.
Miscellaneous. Cited erroneously in Noyes v. Stauff, 5 Or. 458.
7 Cr. 168-171, 3 I.. Ed. 304, KLSQ y. BIDDIiB.
If plaintiff not bound to pay money, and it was paid without request of
defendant^ plaintiff ia not entitled to recover.
7 Cr. 171-176 NOTES ON U. S. REPORTS. 616
Cited in dissenting opinion in Cndahy Packing Co. v. Sioux Nat. Bk., 75
Fed. 479; 40 U. S. App. 142, point that one cannot constitute himself cred-
itor of another by paying his debts voluntarily or at the request of his
debtor or of stranger.
Kedtal-in deed admitting debt to be due is sufficient to take case out ol
statute of limitations.
Cited in Shepherd v. Thompson, 122 U. S. 235, 80 L. Ed. 1157, 7 Sup.
Ct. 1231, holding that a mere acknowledgment of the debt, though in writ-
ing, did not revive debt; Centet v. The P. & M. Bank, 22 Ala. 759, holding
recital in mortgage to be sufficient to put one on inquiry.
What amounts to a contract for the sale of land within the meaning
of the statute of frauds. Note, 102 Am. St. Rep. 247.
Giving check, bill, note, etc., as part payment or collateral security, as
starting statute of limitations running anew. Note, 15 Ann. Gas.
S32. .
7 Cr. 171-176, 3 Ii. Ed. 305, DAVY v. PAW.
Omission of arbitrators to act upon matter submitted is not ground fox
setting aside award where party is not injured.
* Cited in Daniels v. Willis, 7 Minn. 378, holding courts of law are less
liberal than courts of equity in setting aside awards ; Whitteinore v.
Whittemore, 2 N. H. 27, holding an award of demands, actually laid before
arbitrators, was binding, although agreement was to submit all demands;
Fluharty v. Beatty, 22 W. Va. 707, holding that presumptions are not to be
raised against aWards ; Green v. Ford, 17 Ark. 593, to point that awards of
only parcel of the things submitted will be disregarded, if injurious; Page
V. Poster, 7 N. H. 395, holding that one objecting to hearing of certain de-
mand cannot afterward claim it was within the submission; Merritt v.
Thompson, 27 N. Y. 232, where acts of the arbitrators, though not author-
ized, were merely clerical.
Necessity that arbitrators determine all matters submitted to arbitra-
tion. Note, Ann. Cas. 1916A, 351.
Award will not be set aside, because of conduct which is indiscreet, but not
indicative that an unjust award made.
Cited in Silver v. Connecticut River Lumber Co., 40 Fed. 194, holding
that jealousy of one arbitrator of another, resulting in a slight warping of
his judgment, will not vitiate .an award; Ormsby v. Bakewell, 7 Ohio, 114,
holding that arbitrators after the hearing may meet for consultation with-
out notice; Brush v. Fisher, 70 Mich. 473, 14 Am. St Rep. 513, 38 N. W.
448, holding that commission of error of law or facJt would not vitiate an.
award, unless so gross as to be proof of fraud ; Underbill v. Van Cortlandt,
2 Johns. Ch. 3^68, holding that if there was no corruption or partiality an
award was binding, however unjust it might appear; Carey v. Wilcox, 6
N. H. 179, where court stated grounds upon .which an award could be im-
peached; Furber v. Chamberlain, 29 N. H. 417, to point that an award
617 HUGHES v. MOORE, 7 Cr. 176-194
fairly made in pturstian^e of submission is conclusive; even upon questions
touching real estate.
Award need not be by deed where the dispute is not as to tlie title, but
only as to price of land.
Cited in Tracy v. Herrick, 26 N. H. 400, where objection was made, be-
cause one award only was signed while the submission provided that it
should be tripartite; Hewitt v. Lehigh etc. River R. R. Co., 67 N. J. Eq.
617, 42 Atl. 327, holding certain letters to constitute written agreement to
arbitrate.
Validity of parol submission to arbitration or parol award. Note,
Ann. Gas. 1913D, 199, 202.
Validity of award under parol submission involving title to real prop*
crty. Note, 22 L. B. A. (N. S.) 716.
7 Cr. 176^194, 3 li. Ed. 307, HUGHES v. MOOBE.
Plaintiff may discontinue count in his declaration after taking issue on
some of pleas and demurring to others.
Approved in Crandall v. Lynch, 20 App. D^ €. 78, holding discontinuance
at trial of count for mesne profits in ejectment not amendment ; Leavitt v.
Cowles, 2 McLean, 493, Fed. Cas. 8171, where plaintiff in an action on note
asked leave to discontinue the first and second counts; Kimball v. Bellows,
13 N. H. 68, where it was said that such discontinuance was no admission
of the truth of a plea; Keeler v. Bartine, 12 Wend. 113, considering the
effect of nolle prosequi as to one count.
Oyer of written contract alleged in first count of declaration does not
spread contract on record so as to make it part of jAeas to other counts,
Approved in.Messer v. Smythe, 68 N. H. 313, where operation and effect
of profert and oyer were considered; EstiU v. Jenkins, 4 Dana (Ky.), 77,
holding that where declaration contained several counts plea not restricted
to any particular count must be taken as an answer to the whole declara-
tion; Larry v. Herrick, 68 N. H. 41, to point that inconsistent counts are
not evidence. .
Tortious act in obtaining patent does not deprive the owner of a plat and
survey of bis equitable title.
Cited in Alston v. Rawles, 13 Fla. 142, point that where one takes title
in the name of another to defraud creditors, a trust results ; Rooker v.
Rooker, 75 Irid. 574, where an action was brought to enforce a parol trust
against a purchaser at sheriff's sale; Oliver v. Dougherty, 3 G. Greene,
373, and Botsford v. Burr, 2 Johns. Ch. 409, point that advances of money
after a purchase cannot raise a resulting trust without overturning the
statute of fra:uds.
No distinction within statute of frauds between sale of land to which one
has only equitable title and sale of land to which he has legal title.
Approved in Friar v. Baldridge, 91 Ark. 140, 120 S. W. 992, following
rule; Stevenson v. Haynes, 220 Mo. 206, 119 S. W. 348, holding where party
/
7 Cr. 176-194: NOTES ON U. S. REPORTS. 618
setting up resulting trust made no payment, lie could not shbw by parol
purchase was made on his account; Pickens v. Wood, 67 W. Va. 483, 60
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 his wife by parol agreement; Smith v. Bumham, 3 Sumn. 461,
Fed. Gas. 13,019, holding parol agreement to become partners in purchase
and sale of lands was within the statute; Chenowith v. Lewis, 9 Or. 162,
holding verbal agreement for sale of an interest in land was void;
Dougherty v. Catlett, 129 111. 438, 21 N. E. 934, following rule; West v.
Randall, 2 Mason, 203, Fed. Cas. 17,424, Tynan v. Warren, 53 N. J. Eq.
320, and Darling v. Butler, 46 Fed. 335, all holding that one could not
acquire an equitable interest in land by parol ; dissenting opinion in Brown
v. Dysinger, 1 Rawle, 418, holding it to be an established rule of chancery
never to decree against the statute upon parol proof which was contra-
dictory. '
Distinguished in Grumley v. Webb, 48 Mo. 670, 694, where party was in
possession and the purchase money was paid under a parol contract of
purchase.
Statute of frauds, contracts affecting real estate. Note, 17 Am. Dec.
58. ■
Where seveiral sued jointly, one cannot be proceeded against alone until
time for appearance of others expires.
- Approved in Crumbaugh v. Otterback, 9 Mackey (D. C), 463, holding
discontinuance as to one of two joint debtors was effective as to both;
Gibbons v. Surber, 4 Blackf. 156, where action of debt was brought by
assignee of joint and several bond; Helm v. Van VIeet, 1 Blackf. 344, 12
Am. Dec. 249, where declaration was filed against two and judgment by
default was taken against one; Brooks y. Mclntyre, 4 Mich. 319, where
there was joint action and one defendant was served and non est inventus
was returned as to ^ther; Doggett v. Jordan, 3 Fla. 217, 218, holding that
return by an officer "not in the county" does not warrant an abatement or
discontinuance as to one or more several joint defendants; Pegram v.
United States, 1 Brock, 263, Fed. Cas. 10,906, where there was action
on joint and several. bond against several defendants, some of whom were
nonresidents and there was return of "no inhabitants" as to them; dissent-
ing opinion in Hanley v. Dewes, 1 Mo. 21, where suit was against five,
only one was served, and judgment by default was taken against all;
Goodhue v. Palmer, 13 Ind. 458, to point that all parties to joint action
must be brought into court before judgment is taken against any; Sneed
V. Wiester, 2 A. K. Marsh. 282, discussing when non est inventus can be
returned.
Denied in Loney v. Bailey, 43 Md. 19, holding that if two or more are
sued in a joint action plaintiff may proceed against one or more, though
others may not be served; Early v. Clarkson, 7 Leigh (Va.), 86, court saying
that probably Supreme Court was not apprised of decision of Supreme
519 NOTES ON U. S, REPORTS., 7 Cr, 202-208
Court of Viiginia, and long-continued practice there; Beagley v. Sims, 81
Va. 646, holding rule changed by Vii^nia code.
Reversal of judgment as affecting judgment based thereon in another
proceeding. Note, Ann. Caa. 191dA, 468.
7 or. 202-20e, 3 L. Ed. 315, WIIJ30K T. KOONTZ.
Bemoval of defendant to another county does not stop running of limlta-
tiODS, unlesB plaintiff has been actually defeated or ohstrudted in bringing
action by removal.
Approved in Cheatham v. Aistrop, 97 Va. 460, 34 S. E. 59, holding re-
moval of debtor from State stops running of statute; Nelson v. Beveridge,
21 Mo. 25, construing the section suspending right of action, where one
prevented its commencement; Brown v. Butler, 87 Va. 625, 13 S. E. 72,
where defendant removed from State; McDonald v. Underbill, 10 Bush
(Ky.), 590, where one residing in Alabama and owing debts in New York
absconded and took up his residence in New York under an assumed name ;
Comstock V. Rayford, 1 Smedes & M. 440, 441, 40 Am. Dec. 104, 105, to point
that a nonresident may proceed against a nonresident debtor provided there
is also resident debtor.
Distinguished in Ten Eyck v. Wing, 1 Mich. 55, where the question was
as to the sufficiency of an acknowledgment to take a case out of the statute.
BUI in nature of attachment in chancery against surviving partner as prin-
cipal and others as gamishees is case at law.
Cited in dissenting opinion in Kelso v. Blackburn, 3 Leigh, 315, to point
that though proceeding under an attachment is in equity, question between
debtor and creditor is generally legal demand; Gilbert v. Lynch, 17
Blatchf. 406, 1 Fed. 115, point that a bill to appropriate a dividend of an
insolvent estate to a debt is in effect action at law; Templeman v. Fauntle-
roy, 3 Rand. 440, where foreign attachment was sued out against absent
debtor and resident garnishee; explained in Moore v. Holt, 10 Gratt, 292,
holding there to be no doubt that purely equitable rights might be secured
and enforced, through medium of foreign attachment.
7 Cr. 206-208, 3 Ii. Ed. 317, BIDDLE v. MOSS.
Principal obligor is not competent as a witness in an action against the
surety on bond.
Approved in Oexner v. Loehr, 117 Mo. App. 710, 93 S. W. 336, whore one
of makers of note was originally codefendant, but defaulted, his wife can-
not testify for accommodation indorser defendant; Hunter v. Gatewood,
5 T. B. Mon. 269, following rule ; Caldwell v. Mc Vicar, 12 Ark. 751, where
court said this was so, even though he was not party; United States v.
Lcffler, 11 Pet. 95, 9 L. Ed. 645, where United States instituted joint action
on joint and several bond executed by collector of taxes and his sureties ;
Kelly V. Lank, 7 B. Mon. 226, holding the principal in delivery bond not to
be competent witness to sustain plea of non est factum for surety ; Cannon
V. Jones, 4 Hawks, 370, where surety filed bill to be relieved from judgment
7 Cr. 208^218 NOTES ON U. S. REPORTS. 520
because of laches ; Henderson v. Lewis, 9 Serg. & R. 383, 11 Am. Bee. 734,
holding that one of two joint obligors not summoned is not witness for other
who is summoned; Governor of Virginia v. Evans, 1 Cr. C. C. 582, Fed. Cas.
16,969, holding principal obligor to be competent for sureties upon col-
lateral issue; Owings v. Low, 7 Har. & J. 130, where witness was held
incompetent because interested in defeating suit; Bennett v. Dowling, 22
Tex. 662, holding, that liability of witness to one of. parties for costs makes
him interested; t^innell y. Cox, 3 Met. (Ky.) 248, holding that payee and
indorser of a bill wais not competent witness for accommodation acceptor;
Bank of Montgomery Co. v* Walker, 9 Serg. & R. 237, 11 Am. Dec. 713,
holding indorser of not to be incompetent in suit against the maker; Chur
v. Keckcley, 1 Bail. 481, holding that maker of note is not competent wit-
ness for indorser; Gayle v. Bishop, 14 Ala. 556, holding principal in note to
be. competent against surety with whom he has deposited indemnity; Haig
v. Newton, 1 Mills (S. C), 426, holding drawer to be incompetent in action
against the indorser; Caldwell v. McVicar, 12 Ark. 754, on the point of
release of interest.
Distinguished in Cfass v. Stinson, 2 Sumn. 459, Fed. Cas. 5260, holding
that principal was competent where surety had been discharged from all
liability.
7 Cr. 208-218, 8 I.. Ed. 317, 8HEEHY T. MANDEVIUiE.
In actioxui on q;»ecial agreements oi; written contracts, contract given In
evidence must correspond with that stated in declaration.
Approved in Davenport Locomotive *Works v. Lemann Co., 118 La. l93,
42 South. 771, holding variance between contract alleged and proof was
fatal; Munn v. Haynes, 46 Mich. 144, 9 N. W. 137, holding declaration
setting out joint obligation will not be sustained, unless joint debt is
proved; Reed v. Cox, 5 Blackf. 314, and Greenough v. Keyworth, 30 Fed.
Cas. 1087, where there was variance in time of payment of note sued on ;
Stone V. Lawrence, 4 Cr. C. C. 11, Fed. Cas. 13,484, holding that note pay-
able "at St. Louis, in the territory of Missouri," is not admissible upon
count not so describing note ; Osborne v. Fulton, 1 Blackf. 234, holding
that, wJiere no day of payment is set forth, it is fatal variance if note
produced was not payable for four months; Connolly v. Cottle, Breese,
365, where note declared on was payable to A. C, and one produced was
payable to the creditors of S. B. S. ; McRae v. McLean, 3 Port. 172, holding
averment of a promise by "Duncan McL.," is supported by evidence of
I^omise by "D. McL." ; Frank v. Morrison, 58 Md. 441, where variance was
held immaterial in action on contract to purchase stock on installments;
Burton v. State, 6 Blackf. 341, where doctrine was applied to scire facias
on a recognizance ; Pearsall v. Phelps, 3 Ala. 526, where there was variance
between pleading of foreign judgment and the exemplification produced;
Cabell V. Hardwick, 1 Call (Va.), 354, holding that in debt on administra-
tion bond, if declaration does not show that plaintiffs sue as justices of the
court, it is fatal variance; Kellogg v. Denslow, 14 Conn. 429, 431, holding
variance to be fatal, where all^ation was of sale' of a condenser and evi-
621 CONWAY V. ALEXANDER. 7 Cr. 218^241
denee was for sale of sundry articles, including condenser ; Bprder Min. Co.
V. Barry, 17 Md. 431, holding there was no substantial variance where
declaration was for freight at certain rate and proof was freight at certain
rate or current rates; Frankliil Ins. Co. v. Smith, 82 111. 132, where rule
was applied in action on insurance policy; Long v. Overton,- 7 Mo. 568,
holding omission of words "of October'' in action on a bond to b% fatal
variance.
Note liaviiig no day of payment is payable Immediately.
Cited in Eaton v. Truesdail, 40 Mich. 6, applying principle to mortgage
deed; White v. Tarbell, 27 Vt. 574, holding allegation that plaintiff was
"bona fide owner and bearer of" note^ without stating the time of pay-
ment, was sufficient.
Ftodnction of note in executing wxit of inauixy.in assompalt on note is
necessary.
Interest, when allowed. Note, 6 Am. Dec. 189.
7 Cr. 218-241, 3 L. Ed. 821, OONWAT ▼. AI^BZANDBR.
Individuals may make contracts for purchase and sale of lands def ea8il>ie
lay payment of money at future day.
Approved in Baird v. Baird, 48 Colo. 514, HI Pac. 82, holding sale with
right to repurchase was not mortgage; Felton v. Grier, 109 Ga. 325, 35
S. E. 177, compelling specific performance of conditional sale, though ilj
resembled mere loan at usurious i^terest ; Tucker v. Witherbee, 130 Ky.
274, 113 S. W. 125, holding contract was mortgage; McG.uire v. Lee, 10
N. D. 169, 86 N. W. 717, holding certain fleeds by husband and wife not to
be mortgage; HoUaday v. Willis, 101 Va. 281, 43 S. E. 618, holding where
plaintiff owned house occupied by herself and mother in law, and not being
able to pay mortgage thereon, and wishing to save property as home,
deeded it to defendant, who thereupon, paid mortgage and gave mother in
law option to repurchase, and latter subsequently refused to purchase and
defendant sold it, contract was conditional sale ; Sadler v, Taylor, 49 W. Va.
119, 120, 38 S. E. 589, 590, holding intention determines whether agreement
is deed or mortgage; Cornell v. Hall, 22 Mich. 383, holding only safe
criterion between conditional sale and mortgage is in i^itent; Alstin v. Cun-
diff, 52 Tex. 462, holding t^at, in determining, reference must be had to
whether relation of debtor and creditor exists; Prince v. Karnes, 59 111.
278, and Hicks v. Norris, 5 Gill & J. 86, both holding inquiry must be
whether contract is security; Hinckley v. Wheelwright, 29 Md. 348, Hol-
ton V. Meighen, 15 Minn. 76, Turner v. Kerr, 44 Mo. 433, and Sears v.
Dixon, 33 Cal. 333, all holding that absolute deed is mortgage, if intended
as security; Henley v. Hotaling, 41 CaL 27, Gassert v. Bogk, 7 Mont. 600,
19 Pac. 285, and Mitchell v. Wellman, 80 Ala. 20, all holding that t,o change
deed into mortgage evidence must be clear ; Bridges v. lender, 60 Iowa, 192,
Voss V, EUer, 109 Ind. 264, 10 N. E. 76, and Alleghany R. R. Co. v. Casey,
79 Pa. St. 97, all holding conveyance in satisfaction of debt with an agree-
ment to reconvey not to be mortgage; Barnes v. Holcomb, 12 Smedes & M.
7 Cr. 218-241 NOTES ON U. S. REPORTS. 522
314, to point that absolnte deed on account of pre-existing debt with an
agreement to reconvey is mortgage; Devore v. Woodruff, 1 N. D. 148, 45
•N. W. 702, holding separate agreement to reconvey did not conclusively
show mortgage; Keithley v. Wood, 151 111. 674, 42 Am. St. Bep. 268,
38 N. E. 151, holding that, in case of a warranty deed with agree-
ment to reconvey, character of deed depends upon intent; Smith v. Crosby,
47 Wis. 166, 2 N. W. 108, where warranty deed with an agreement for re-
conveyance was regarded as an absolute conveyance; Flagg v. Mann, 14
Pick. 480, holding conditional sales to be valid; Johnson v. Clark, 5 Ark.
342, to point that parties can make conditional sales to become absolute
on certain contingencies; Hollingsworth v. Handcock, 7 Fla. 346, holding
conditional sales will be supported when clearly purpose of parties;
Lucketts V. Townsend, 3 Tex. 129, 49 Am. Dec. 725, discussing distinction
between conditional sales, mortgages and pawns; Fowler v. Stoneum, 11
Tex. 508, 62 Am. Dec. 502, to point that conditional sale passes title in
first Instance with right of repurchase; Lowry v. McGhee, 8 Yerg,,248, on
the point that in conditional sale condition must be strictly performed.
Absolute deed and agreement to reconvey. Note, 17 Am. Dec. 800,
305.
Leaning of courts is against conditional sales, and in doubtful cases they
have generally been decided to be mortgages.
Approved in Pontiac Buggy Co. v. Skinner, 158 Fed. 866, holding con-
tract was not conditional sale but invalid mortgage; Fletcher v. North-
cross, 3 Cal. Unrep. 801, 32 Pac. 329, holding contract was conditional
sale; Cold v. Beh, 152 Iowa, 372, 373, 132 N. W. 74, holding deed was
absolute conveyance; Bigler v. Jack, 114 Iowa, 674, 87 N. W. 702, holding
conveyance under agreement to repurchase not a mortgage; Day v. Davis,
101 Md. -269, 61 Atl. 580, holding deed was accompanied by grantee's option
to reconvey on payment of consideration and grantor could redeem ; Schmidt
V. Barclay, 161 Mich. 12, 20 Ann. Cas. 1194, 125 N. W. 734, holding deed
absolute was intended as mortgage; Smith v. Jensen, 16 N. D. 412, 114
N. W. 307, holding contract to be mortgage; Spalding v. Brown, 36 Or.
167, 59 Pac. 188, holding bill of sale of bicycles was conditional sale and
not a mortgage; Liskey v. Snyder, 56 W. Va. 636, 49 S. E. 526, 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 reten-
tion of possession and payment of taxes by grantor is mortgage ; Sadler v.
Taylor, 49 W. Va. 128, 38 S. E. 593, holding intention determines whether
transaction is conditional sale or mortgage; Walker v. Farmers* Bk., 8
Houst. 261, 10 Atl. 97, s. c, 6 Del. Ch. 91, to point that policy of law is to
prohibit conversion of a mortgage into sale; Dougherty v. McColgan, 6
Gill & J. 281, holding that, in doubtful cases, leaning of the courts was
in favor of mortgage; Stephens v. Allen, 11 Or. 190, 3 Pac. 169, Rc^ed v.
Reed, 76 Me. 271, and Hughes v. Sheaff, 19 Iowa, 343, all holding that char-
acter of the conveyance is determined by intention; Hoffman v. Ryan, 21
W. Va. 429, Vangilder v. Hoffman, 22 W. Va. 16, and Ruffier v. Womack,
30 Tex. 340, all holding true issue to be, docs relation of debtor and ored-
523 CONWAY v. ALEXANDER. 7 Cr. 218-241
itoT exist; Bangher v. Menyman, 32 Md. 192, holding conveyance, what-
ever its form, taken as security, was mortgage; Davis v. Stonestreet, 4
Ind. 105, holding equity was disposed to construe every deed taken as secur-
ity to be mortgage ; Plummer v. Shirley, 16 Ind. 382, where personalty is
^ven as security, it is chattel mortgage ; Bacon v. Brown, 19 Conn. 34, and
Stoever v. Stoever, 9 Seig. & R. 447j both holding deed, with condition
that it is to be void if a certain sum is paid by certain day, is mortgage;
Brown v. Dewey, 1 Sand. Ch. 64, holding an absolute conveyance by-
mortgagor to mortgagee, with an agreement to reconvey, to be mortgage;
Matthews v. Sheehan, 69 N. T. 591, holding absolute assignment of life
insurance policy may be shown to be a mortgage by parol.
What constitutes a transaction a sale. Note, 94 Am. St. Bep. .236> 289.
Mortgage and conditional sale. Note, 50 Am. Dec. 196.
Want of covenanit to repay money is not complete evidence that condi-
tional sale was Intended, but it is circumstance.
Approved in White v. Redenbaugh, 41 Ind. App. 583, 82 N. E. Ill, fol-
lowing rule ; Johnson v. National Bank of Commerce, 65 Wash. 272, L. R. A.
1916B, 4, 118 Pac. 24, holding where there was no covenant to reconvey
evidence that deed was intended as mortgage must be convincing ; Gassert
V. Bogk, 7 Mont. 598, 19 Pac. 284, and Scott v. Britton, 2 Yerg. 223, 224,
both holding that where there is an absolute conveyance and no obligation
to pay appears, prima facie transaction is sale ; Moss v. Green, 10 Leigh,
272, and Brown v. Dewey, 1 Sand. Ch. 71, holding that want of such agree-
ment is not conclusive against a contract being a mortgage; Matthews v.
Sheehan, 69 N, Y. 593, holding that an absolute assignment of policy with
an absolute promise by the assignor to pay the premiums was not essential
to constitute it mortgage; Holmes v. Fresh, 9 Mo. (210) 211, holding that
all parties must have intended transaction to be mortgage to change an
absolute deed into mortgage; Robinson v. Farrelly, 16 Ala. 478, and Rogan
V. Walker, 1 Wis. 570, both holding that whatever its form, if security, it
is mortgage ; Horn v. Keteltas, 46 N. Y. 611, holding that an absolute con-
veyance can be shown to be a mortgage by parol; Low v. Henry, 9 Cal.
549, discussing admissibility of parol evidence to show deed to be mort-
gage; Hickman v. Cantrell, 9 Yerg. 182, 30 Am. Dec. 397, where bill of sale
with covenant to reconvey on payment was held not to be mortgage.
Distinguished in Floyd v. Harrison, 2 Rob. (Va.) 181, where one had
covenanted to repay with interest.
Test between mortgage and conditional sale. Note, 18 £. E. 0. 13, 15.
It Is necessary ingredient in mortgage that mortgagee shotad have remedy
against person of debtor.
Approved in Northern Cent. Ry. Co. v. Hering, 93 Md. 176, 48 Atl. 462,
holding where creditor and debtor agree that debt shall be discharged by
payment of annuity, original debt is extinguished; Hopper v. Smyser, 90
Md. 382, 45 Atl. 209, where one gives mortgage in several lots and there-
after sells equity of redemption in one mortgage, must first exhaust secur-
ity of other lots; Reed v. Parker, 33 Wash. 117, 74 Pac. 64, construing
7 Cr. 218-241 NOTES ON U. S. REPORTS. 524
transaction as sale with option to repurchase and not mortgage; Hicks v.
Hicks, 5 Gill & J. 83, holding that to constitute a mortgage remedies must
in all respects be material; Calhoun v. Lumpkin, 60 Tex. 189, and Desloge
V. Ranger, 7 Mo. 330, both holding that whether transaction is a sale or
mortgage depends upon intent ; Slutz v. Desenberg, 28 Ohio S|:. 377, Hubby
V. Harris, 68 Tex. 95, 3 S. W. 559, and Robinson v. Cropsey, 2 Edw. Ch.
144, all holding that criterion is whether the relation of debtor and cred-
itor exist; Demond v. Crary, 9 Fed. 752, where deed absolute in considera-
tiqn of debt paid for grantor was held not to be mortgage.
Denied in Kerr v. Kilmore, 6 Watts, 410, holding deed of conveyance
with separate defeasance to be mortgage.
Court will examine extrinsic circumstances for purpose of determining
whether contract is to be construed as deed or mortgage.
Approved in Gibbons v. Joseph Gibbons Con. M. & M. Co., 37 Colo. 104,
11 Ann. Cas. 323, 86 Pac. 96, holdii^g parol evidence admissible to prove
bill of sale was intended or chattel mortgage ; Harmon v. Grants Pass Bank-
ing & Trust, 60 Or. 74, 118 Pac. 190, Miller v. Smith, 20 N. D. 100, 126
N. W. 501, and Hobbs v. Rowland, 136 Ky. 200, L. R. A. 1916B, 1, 123 S. W.
1186, all holding that fact that deed was intended as mortgage provable
by parol; Suavely v. Pickle, 29 Gratt. 31, holding that whether deed abso-
lute is mortgage depends upon circumstances with leaning in favor of
mortgage; Spence v. Steadman, 49 Ga. 138, holding that test was whether
relation of debtor and creditor existed; Cleveland v. La Crosse etc. Co.,
5 Fed. Cas. 1035, Scott v. Cunningham, 13 Ark. 127, Campbell v. Dearborn,
109 Mass. 145, 12 Am. Rep. 682, Schriber v. Le Claire, 66 Wis. 599, 29
N. W. 892, Page V. Foster, 7 N. H. 394, and Hicks v. Norris, 5 Gill & J.
&6, all holding that transaction depends upon whether contract is security
for repayment of money; Rockwell v. Humphrey, 57 Wis. 416, 16 N. W.
396, to pK>int that, if there is nothing to show an intent to transfer as secur-
ity, transaction is usually held to be conditional sale; Neaso v. Capehart,
8 W. Va. 125, holding that, where object of conveyance is to secure pay-
ment of money, right to redeem exists; McNamara v. Culver, 22 Kan. 669,
670, and Flagg v. Mann, 2 Sumn. 534, Fed. Cas. 4847, both holding test to
be existence of debt; Byrne y, Marshall, 44 Ala. 357, to point that two
instruments relating to the same transaction will be considered in con-
struing a contract; Vangilder v, Hoffman, 22 W. Va. 21, where court re-
viewed circumstances which would indicate transaction to be mortgage;
Flagg V. Mann, 14 Pick. 478, to point that whether there was any agree-
ment to reconvey is material in determining; Hays v. Carr, 83 Ind. 283,
where grantee agreed to pay debt of grantor, and upon repayment to re-
convey; Davis V. Demming, 12 W. Va. 281, holding that conveyance for
payment of debt lyith condition for reconveyance on repayment was mort-
gage; Murphy v. Barsfield, 27 Ala. 639, where there was sale of slaves
with words of conveyance and stipulation for redemption ; dissenting opin-
ion in Livingston v. Story, 11 Pet. 405, 9 L. Ed. 768, where contract of loan
with absolute (Conveyance was construed ; Hinckley v. Hinckley, 79 Me. 323,
9 Atl. 898, where son conveyed property to his mother and received agree-
ment to reconvey when indebtedness was paid; Kroesen y. Seevers, 5
525 . CONWAY v. ALEXANDER. 7 Cr. 218-241
Leigh; 441, and Haynie v. Robertson, 58 Ala. 40, both holding that an abso-
lute sale with condition for resale was not mortgage ; Amory v. Lawrence,
3 Cliff. 530, Fed. Cas. 336, where there was conyeyan^e to one who was to
pay debt of the grantor and account for balance; Refers v. Beach, 115
Ind. 416, 17 N. E. 611, to point that an agreement to give grantor increased
price, if vendee should sell, does not make contract mortgage; HoUings-
worth V. Handcock, 7 Fla. 350, where party failed to assert his -claim for
great length of time without any explanation; Jewett v. Cunard, 3 Wood.
& M. 295, Ped. Cas. 7310, to point that an absolute deed may be changed
to mortgage by subsequent special agreement; Hubby v. Harris, 68 Tex.
94, 3 S. W, 558, Alexander v. Rodriguez, 1 Fed. Cas. 377, and Klein v.
McNamara, 54 Miss. 101, to point that parol evidence is admissible to show
real nature of transaction; Hudson v. Isbell, 5 Stew. & P. 80, Huoncker
V. Merkey, 102 Pa. St. 467, Lewis v. Wells, 85 Fed. 899, and Babcock v.
Wyman, 19 How. 299, 15 L. Ed. 648, all holding that an absolute convey-
ance can be shown to be a mortgage by parol ; Wyman v. Babcock, 2 Curt.
398, Fed. Cas. 18,113, holding deed may be shown to be mortgage by oral
testimony of two witnesses against denial of answer; Roberts v. McMahan,
4 G. Greene, 35, holding that ordinarily oral evidence was not admissible
to contradict writing; Hatfield v. Montgomery, 2 Port. 69, where question
as to admissibility of testimony of fraudulent grantor in favor of his
grantee was discussed; Russell v. Southard, 12 How. 147, 13 L. Ed. 930,
holding extraneous evidence was admissible to inform the court of every
material fact.
Distinguished to point as to what transaction "Was a mortgage in Coles v.
Peny, 7 Tex. 130, 150, where an instrument was held to be an executory
eontract of sale and not a mortgage.
Parol evidence that instrument importing a complete transfer was in-
tended as a mortgage or pledge. Note, L. B. A. 1916B, 132, 204, 215,
288, 240, 242, 316, 858, 361, 891, 893, 397, 401, 427, 481, 482, 484,
466, 468, 488, 582.
If inst^imemt waa really security for money advanced and to be repaid,
It is mortgage, Ixreapective of Intention.
Approved in Rogers v. Burt, 157 Ala. 96, 47 South. 228, holding deed
absolute was not intended as mortgage; Riggin v. Robinson, 117 Md. 84,
83 Atl. 145, holding deed in question could not be r^arded as mortgage,
deed of trust or conditional sale; Hinckley v. Wheelwright, 29 Md. 360,
IH)int that absolute conveyances taken as security are mortgages ; Johnson
V. Clark, 5 Ark. 338, to point that a contract is a mortgage, no matter what
its form of intended security for a debt ; Cake v. Shull, 45 N. J. Eq. 212,
16 Atl. 435, to point that, if no security is intended, transaction is sale,
althoi^h there is provision for reconveyance ; Musgat v. Pumpelly, 46 Wis.
666, 1 N. W. 416, to point that court is justified in presuming relation of
debtor and creditor, where contract is to secure indebtedness; Alexander
V. Rodriguez, 1 Fed. Cas. 381, holding conveyance in satisfaction of prece-
dent debt, so that there is no personal remedy left to the creditor, is not
mortgage.
Essential character of a mortgage. Note, 18 E. E. C. 5.
7 Cr. 218-241 NOTES ON U. S. REPORTS. 526
Existence of debt iB drcmiMttance In d^tenniiiiiig wlMtlier tratmction iB
absolute sale oi mortgage. '
Approved in Donovan v. Boeck, 217 Mo. 87, 116 S. W, 647, holding in
absence of debt contract was conditional sale; Shields v. Simonton, 65
W. Va. 182, 63 S. E. 973, holding where debt continued and was evidenced
by notes, deed was mortgage ; De Bruhl v. Maas, 54 Tex. 472, holding that
in doubtful cases contract will be construed to be mortgage; Bentley v.
Phelps, 2 Wood. & M. 443, 446, Fed. Gas. 1331, to point that relationship of
debtor and creditor and amount of consideration are material; Douglass
V. Moody, 80 Ala. 69, to point that absence of independent evidence of
debt is a circumstance to show conditional sale; McKinstry v. Conly, 12
Ala. 681, holding very clear evidence is necessary to create mortgage where
evidences of debt are given up; West v. Hendrix, 28 Ala. 234, holding con-
veyance in consideration of pre-existing debt was not mortgage; Cully v.
Bloomingdale, 68 Ga. 759, where deed signed by husband and wife, pro-
vided that if certain sum were paid by certain day, it should be void;
Baxter v. Willey, 9 Vt. 280, SI Am. Dec. 625, Hoopes v, Bailey, 28 Miss.
339, and Reed v. Bond, 96 Mich. 140, 55 N. W. 621^ all holding that con-
veyance in payment of debt with a privilege of repurchase was not mort-
gage ; Winters v. Swift, 2 Idaho, 66, 69, 3 Pac. 19, 21, Glover v. Payne, 19
Wend. 521, and Gait v. Jackson, 9 Ga. 156, all holding conveyance with an
agreement for reconveyance did not show mortgage; Sewall v. Henry, 9
Ala. 33, where sale of negro with stipulation to resell if applied for in cer-
tain time, was held not to be mortgage; Mobile Bldg. & Loan Assn. v.
Robertson, 65 Ala. 388, holding that if contract is intended as security
it is mortgage no matter what its form; Porter v. Clement, 3 Ark. 384,
holding parol evidence admissible to show deed to be mortgage; Pace v.
Bartles, 47 N. J. Eq. 176, 20 Atl. 369, where court reviewed transaction
and held it to be conditional sale ; Almy v. Wilbur, 2 Wood. & M. 384, Fed.
Gas. 256, where promise to buy machinery and let another use it for cloth
at such other's factory was held not mortgage.
Distinguished in Plato v. Roe, 14 Wis. 457, where vendor had expressly
applied for loan.
Inadeauacy of consideration on sale by one pressed for money is material
in determining whether contract is sale or mortgage.
Approved in Wagg v. Herbert, 19 Okl. 557, 558, 92 Pac. 263, foUowing
rule; 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 ;
Flagg V. Mann, 2 Suran. 537, Fed. Gas. 4847, court saying true question to
be determined was whether debt still existed ; Russell v. Southard, 12 How.
148, 151, 13 L. Ed. 931, 932, holding a transaction, the consideration being
grossly inadequate, to be mortgage; Holmes v. Fresh, 9 Mo. 210, 211,
Lane v. Dickerson, 10 Yerg. 374, and West v. Hendrix, 28 Ala. 235, all
holding that mere inadequacy was not sufficient to convert sale into mort-
gage ; Wilson v. Patrick, 34 Iowa, 370, and Husheon v. Husheon, 71 Cal.
412, 12 Pac. 412, both holding that transactions in land intended only as
a security for performance of another act are mortgages; De Laigle v.
527 . DUNLOP v, MUNROE. 7 Cr. 242-270
Denham, 65 Ga. 491, where there was an absolute conveyance with an
agreement for repurchase.
Miscellaneous. Cited erroneously in State ex rel. Klein v. Pilsbury, 29
La. Ann. 790, mandamus case ; Bank of Mt. Pleasant v. Sprigg, 1 McLean,
182, Fed. Cas. 891, question in estoppel.
7 Cr. 242-270, 3 L. Ed. 242, DVNLOV v. MXTNEOB.
Postmaster is not liable for negUgehce and carelessness of his assistants.
Approved in Bankers' Mut. C. Co. v. Minneapolis etc. Ry. Co^ 117 Fed.
440, holding railroad not liable for theft of mail from its station ; Hutchins
V. Brackett, 22 N. H. 255, 53 Am. Dec. 250, holding mail contractors not
to be liable for negligence of carriers employed; Keenan v. South worth,
110 Mass. 475, 14 Am. Bep. 614, holding postmaster not liable for loss of
letter by an assistant; Coleman v.,Frazier, 4 Rich. 150, 53 Am. Dec. 729,
holding postmaster to be liable for his servant's negligence or default;
Bishop V. Williamson, U Me. 502, 505, holding postmaster liable for acts
of one he leaves in chaise of office, not sworn; Schroyer v. Lynch, 8 Watts,
457, holding postmaster liable for want of attention to official duties by
his subordinates, but not for their secret delinquencies; United States v.
Kochersperger, 26 Fed. Cas. 806, to point that postmasters are not in any
respect carriers of mail; Raisler v. Oliver, 97 Ala. 714, 38 Am. St. Rep.
214, 12 South. 240, holding a postmaster to be liable for negligence of a
clerk employed independently of lawful authority; Sawyer v. Corse, 17
Gratt. 240, 94 Am. Dec. 448, holding public officer not to be liable for acts
of his official subordinates; United States v. Thomas, 15 Wall. 344, 21
L. Ed. 91, and Robertson v. Sichel, 127 U. S. 516, 32 L. Ed. 206. 8 Sup. Ct.
1291, both laying down rule as to liability of collector of public money;
United States v. Collier, 3 Blatchf. 349, Fed. Cas. 14,833 where an action
was brought against collector for balance alleged to be due; Supervisors of
Albany v. Dore, 25 Wend. 442, holding public officer not to be liable for
money stolen from his office ; Richmond v. Long, 17 Gratt. 378, 94 Am, Dec.
463, holding cities not liable for misconduct of agents; Movins v. Lee, 24
Blatchf. 301, 30 Fed. 305, where action was brought against directors of
national bank.
Distinguished in Commissioner of Jeiferson Co. v. Lineberger, 3 Mont.
242, 35 Am. Rep. 465, hdlding county treasurer to be liable for trust money
stolen from the safe; United States v. Zabriskie, 87 Fed. 717, holding a
melter and refiner to be liable for embezzlement by his assistant.
Liability of postmasters. Note, 42 Am. Dec. 209.
If it is intended to charge postmaster for negligence of his assistants,
pleadings must l>e made np according to case.
Cited in Macumber v. White River Log etc. Co., 52 Mich. 197, 17 N. W.
806, to point that under a count for malfeasance one cannot recover for
nonfeasance.
7 Cr. 271-273 NOTES ON U. S. REPORTS. 628
Each 1)1U of exceirtioiis must be considered as presenting a distinct; sal^
stantive case.
Approved in Pittsburg Gas & Coke Co. v. Goff-Kirby Coal Co., 151 Fed.
469, 81 C. C. A. 76, refusing to consider transcript of evidence not in-
corporated in bill of exception; Downing v. State, 10 Wyo. 378, 69 Pac.
265, holding appeal founded on giving of erroneous instructions will not
be dismissed for failure to set out evidence in bill of exceptions, where
errors assigned could not have been correct under any evidence; Car-
michael v. Browder, 4 How. (Miss.) 433, holding that mere statement by
clerk that certain papers were read^ or reference to papers will not con-
stitute them part of record; Southwestern Va. Imp. Co. v. Frari, 58 Fed.
172, 8 U. S. App. 444, and Jones v. Buckell, 104 U. S. 566, 26 L. Ed. 841,
both holding that appellate court would not consider instructions unless
bill of exceptions contained evidence; Doe ex dem. Cdmmys v. Latimer, 2
Fla. 89, where court said that if bill was defective in any mBterial point,
it could not be supplied by intendment; New York etc. R. R. Co. v. Madi-
son, 123 U. S. 526, 31 L. Ed. 260, 8 Sup. Ct. 247, holding that rulings on
questions of law will not be considered unless it appears from bill that
facts make them material; United • States v. Three Hundred and Thirty-
seven Cases of Wine^ 1 Woods, 50, Fed. Cas. 16,506, holding- cause would
not be reversed for error in an abstract cause which bill does not show
was pertinent.
Court cannot go beyond bill of exceptions and collect other facts.
Approved in United States v. Wingate, 44 Fed. 131, to point that court
will not look outside of bill to determine the correctness of instruction;
Barfield v. Impson, 1 Smedes & M. 330, holding bill of exceptions to be
only medium of communication between lower and higher courts; Lewis v.
Baca, 5 N. M. 294, 21 Pac. 343, holding that extrinsic evidence of matters
occurring at trial was not admissible to aid in construing a bill of excep-
tions; Insurance Co. v. Folsom, 18 Wall. 249, 21 L. Ed. 833, to point that
facts are not re-examinable in Supreme Court; dissenting opinion in United
States v.- King, 7 How. 865, 12 L. Ed. 948, holding that writs of error
bring up questions of law only and that facts remain uncxaminable ; United
States V. Jarvis, 3 Wood. & M. 225, Fed. Cas. 15,469, holding that bill
must show party objected to rulings; Hombuckle v. Stafford, 111 U. S.
393, 28 L. Ed. 469, 4 Sup. Ct. 517, to point that on an exception to evi-
dence bill should show what excluded testimony was.
Liability for lost or stolen mail. Note, L. R. A. 1915A, 876.
Who was public ofScer. Note, 17 L. R. A. 249.
7 Ct. 271-273, 3 L. Ed. 339, WOOD v. DAVIS.
Judgment that mother was bom free is not conclQsiye eyidence of fteedom
of her children, in suit between other parties.
Approved in Kapiolani Estate v. Atcherley, 238 U. S. 138, 69 L. Ed.
1238, 35 Sup. Ct. 832, holding judgment against grantee of portion of
grantor's property not privy to suit against grantee of another portion and
629 . NOTES ON U. S. REPORTS. 7 Cr. 273-276
judgment therein not res ad judicata as to first grantee; Bloodgood v.
Grasey, 31 Ala. 591, holding that judgment in suit for freedom in favor of
petitioner's mother does not estop one claiming under defendant therein;
Nowak V. Knight, 44 Minn. 243, 46 N. W. 349, to point that the estoppel
of a judgment must be mutual; Chamberlain v. Carlisle, 26 N. H. 552,
holding former judgment must be strictly between the same parties and
upon same matter; Greely v. Smith, 1 Wood. & M. 182, Fed. Cas. 5749,
where, to an action of trover, defendant pleaded replevin for same prop-
erty; Dent V. Ashley, Hempst. 55, Fed. Cas. 3809a, holding that where an
administration is granted in two States, there is no privity between admin-
istrators; Chamberlain v. Pierson, 87 Fed. 424, holding judgment in crim-
inal case was not admissible in civil; Burlen v. Shannon, 3 Gray, 390,
holding decree dismissing libel for divorce for extreme cruelty is not con-
clusive of a wife having unjustifiably left the house; Warner v. Brinton,
29 Fed. Cas. 235, to point as to admissibility of minutes of proceedings
before register to show foundation of decree of register.
7 Cr. 273-276, 3 L. Ed. 340, MOBOAN V. BEINTZELIi.
Payment of note by Indorser is sofllcient consideration to support promise
hy maker to pay amount of note and costs of protest.
Cited in Doughty v. Hildt, 1 McLean, 336, Fed. Cas. 4027, holding payee
is entitled to recover costs of protest against indorser; Morse v. Bellows,
7 K. H. 569, 28 Am. Dec. 880, to point that where demand is made of
maker, note itself should be produced.
Distinguished in Roach v. Hullings, 16 Pet. 326, 10 L. Ed. 981, where
court refused an instruction as to payment by note and surrender and
cancellation of note. /
Right of action on lost note or bill. Note, 4 E. R. 0. 653.
7 Cr. 276, 3 L. Ed. 341, WISE V. COLUMBIAN TURNPIKE CO.
Writ of error to Circuit Court of District of Columliia dismissed if award
less than one hundred dollars, although greater sum was claimed.
Approved in Kline v. Wood, 9 Serg. & R. 30l, where judgment was for
less than necessary amount, although plaintiff claimed more; Batchelder v.
Richardson, 75 Va. 837, holding that on money demand, if difference be-
tween amount decreed and amount asserted is not sufBcient to give court
jurisdiction, appeal will be dismissed; Kanouse v. Martin, 15 How. 208,
14 L. Ed. 664, where court said words "matter in dispute" referred to
claim presented on the record; Walker v. United States, 4 Wall. 164, 18
L Ed. 319, to point that amount in controversy is fixed by judgment;
Reynolds v. Sneed, 1 Ark. 200, to point that judgment is amount in dis-
pute on an appeal by a defendant; Gordon v. Ogden, 3 Pet. 35, 7 L. Ed.
593, to point that the test of jurisdiction depends upon amount in dispute
as case stands upon writ of error; Merrill v. Petty, 16 Wall. 344, 21 L. Ed.
500, where an appeal in libel in personam for collision was dismissed be-
eaose the judgment was for less than two thousajid dollars.
1—84
7 Cr. 276-279 NOTES ON U. S. REPORTS. 530
Discussed and said to be imperfectly reported in Hilton v. Dickinson,
108 U. S. 170, 172, 27 L. Ed. 689, 690, 2 Sup. Ct. 427, 428, holding that sum
demanded governs until it appears it was not sum in dispute.
7 Ci. 276-277, 3 L. Ed. 341, OALDWEIiL v. JACKSON.
Each party Is liable to the clerk for his fees for services performed for
such party.
Distinguished in Livinski v. Middlesex Bank. Co., 92 Fed. 458, arguendo ;
In re Stover, 1 Curt. 204, 205, Fed. Cas. 13,507, holding that rule as to
liability was not changed by decree dismissing libel ''without costs to
either party"; In re Stover, 1 Curt. 98, 99, Fed. Cas. 13,506, holding fees
paid by claimant did not have to be refunded by United ' States ; Anony-
mous, 2 Gall. 101, Fed. Cas. 445, holding attachment would issue to enforce
payment of fees against an indorser on a writ; Frese v. Biedenfeld, 14
Blatehf. 402, Fed. Cas. 5111, where attachment was refused to a plaintiff
to compel a defendant to pay fees; In re Atlantic Mut. L. Ins. Co., 9
Ben. 338, Fed. Cas. 629, where court said it was unable to find any theory
upon which such practice could be sustained in New York.
Copy of record is not part of the costs which are to he taxed against the
other paxty as costs of suit.
Approved in American Bank Protection Co. v. City Nat. Bank, 203 Fed.
719, following rule; Price v. Garland, 5 N. M. 101, s. c, 4 N. M. 366, 20
Pac. 183, holding expense of record or of appellant's brief or stenographer's
fee are not costs; Goodyear v. Sawyer, 17 Fed. 5, where court said that
fees of an attorney under certain circumstances were taxable as costs.
7 Cr. 277-278, 3 L. Ed. 342, BLACKWELL v. PATTEN.
Writ of error will not he dismissed because a term intervenes hetween the
teste and the return day.
Cited in State v. Kennedy, 18 N.*J. L. 26, holding writ of certiorari to
be void if not executed before its return day; United States v. Jarvis, 3
Wood. & M. 224, Fed. Cas. 15,469, to point as to allowance of amendments
on writs of error and in proceedings they are brought to reverse.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 838.
7 Cr. 278-279, 3 L. Ed. 342, WALLEN v. WIIiIJAMS.
Court will not quash an execution on writ of error to original decree whlcli
did not award the writ.
Approved in New England R. Co. v. Hyde, 101 Fed. 400, holding super-
sedeas cannot be allowed by filing writ of error after sixty days from entry
of judgment; Slaughter House Cases, 10 Wall. 292, 19 L. Ed. 9i20, holdin?
that neither appeals nor writs of error. become a supersedeas by virtue
merely of process issued by Supreme Court; Adams v. Law, 16 How. 148,
14 L. Ed. 882, holding that if bond is not filed in time, motion for super-
531 McKIM V. VOORHIES. 7 Cr. 279-281
sedead is not sustained ; French v. Shoemaker, 12 Wall. 100, 20 L. Ed. 271,
holding that on an appeal from a decree in a suit for an injunction Su-
preme Court may issue supersedeas; dissenting opinion in Telegraph Co. v.
Eyser, 19 Wall. 430, 22 L. Ed. 45, to point that writs of error or appeals
do not operate as stay' unless act of Congress is complied with within ten
days; Union Mut. Life Ins. Co. v. Windett, 36 Fed. 839, to point that after
an appeal court has power to execute the decree ; Chicago, R. I. & P. R. R.
Co. V. Grinnell, 53 Iowa, 56, to point that judgments are not superseded
by appeal and may be enforced by proper process.
Distinguished in Ferguson v. Dent, 29 Fed. 3, discussing effect of decree
on appoinnnent of receiver.
•Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 863.
Miscellaneous. Cited erroneously in Worthy v. Lyon, 18 Ala. 787.
7 Gr. 279-281, 8 li. Ed. 342, McKIM v. VOOBHIES.
State court has no jurisdiction to enjoin judgment of Circuit Court of the
United States.
Approved in McCullough v. Hicks, 63 S. C. 546, 41 S. E. 762, holding
State court cannot enjoin enforcement of mandamus by Federal Court;
Henderson v. Henrie, 61 W. Va. 190, 11 Ann. Oas. 741, 56 S. E. 371, hold-
ing State court could not enjoin action by United States District Court ;>
Somner v. Marcy, 3 Wood. & M. 119, Fed. Cas. 13,609,' and Dorr v. Rohr,
82 Va. 370, 3 Am. St. Rep. 114, both holding that State court could not
enjoin decree of Federal court ; Schuyler v. Pelissier, 3 Edw. Ch. 193, where
State court refused to enjoin an action brought in United States Circuit
Court; Edwards v. Nicholson, 13 La. 586, to point that a District Court of
United States first taking jurisdiction has exclusive jurisdiction of all pro-
ceedings arising therein; Central Nat. Bk. v. Hazard, 49 Fed. 295, holding
that a Federal court ordering sale of railroad has complete jurisdiction
so as to exclude all interference; Mabry v. Hemdon, 8 Ala. 861, holding
State court can inquire into Federal discharge in bankruptcy; Ex parte
Holman, 28 Iowa, 105, 4 Am. Rep. 168, holding that person in custody,
nnder an order of Circuit Court, cannot be discharged in State court;
United States v. Council of Keokuk, 6 WalL 517, 18 L. Ed. 934, and Riggs
V. Johnson Co., 6 Wall. 194, 18 L. Ed. 776, both holding an injunction by
State court to be inoperative against a mandamus by Federal court to com-
pel levy of tax; Duncan v. Darst, 1 How. 306, 11 L. Ed. 141, holding that
a person in custody, under authority of a Circuit Court, could not be dis-
charged from imprisonment by State officer; Mead v. Merritt, 2 Paige,
404, holding that chancery will not restrain suit previously commenced in
sister State or Federal court; Kendall v. Winaor, 6 R. I. 462, holding this
rule to be specially applicable in suit for damages for the infringement of
patent; Ex parte Hill, 38 Ala. 438, and Ex parte Hill, 38 Ala. 462, both
holding State court could not on habeas corpus discharge an enrolled con-
script from custody of Confederate State officer; Stozier v. Howes, 30 Ga.
7 Cr. 281-284 ' NOTES ON U. S. REPORTS. 532
579, and C^apin v. James, 11 R. I. 89, 23 Am. Bep. 415, both holding State
court could not enjoin executions from the Circuit Court; dissenting opin-
ion in Pi'ovidence etc. S. S. Co. v. Hill Mfg. Co., 109 U. S. 607, 27 L. Ed.
1048, 3 Sup. Ct. 620, holding that proceedings in District Court to limit
liability of a shipowner supersedes all other proceeding; Kittredge v.
Emerson,. 15 N. H. 269, holding that Federal judges are restrained by gen-
eral laws from staying proceedings in any State court; Boyd v. Hawkins,
2 Dev. Eq. 337, and Amory v. Amory, 3.Biss. 271, Fed. Cas. 334, to point
that Federal courts will not disturb judgments in State courts; Reinach v.
Atlantic etc. R. R. Co., 58 Fed« 44, holding Federal «ourt could pot enjoin
receiver under a State court from issuing receiver's certificates ;' The Celes-
tine, 1 Bis^. 12, Fed. Cas. 2541, holding creditor could not in Circuit Court
obtain any control over property seized under State laws; Fisher v. Lord,
9 Fed. Cas. 135, where proceedings did not operate upon State court, but
respondent was enjoined in personam; Cropper v. Cobum, 2 Curt. 469,
Fed. Cas. 3416, holding that an unauthorized attachment may be enjoined
in the Federal courts; Moran v. Sturges, 154 U. S. 267, 88 L. Ed. 985, 14
Svip. Ct. 1022, holding that District Court could interfere where State
court had no jurisdiction; City of Opelika v. Daniel, 59 Ala. 216, whe,re
suit was brought in Federal courts on city bonds previously declared void
by State court ; Brown v. Wallace, 4 Gill & J. 496, s. c, 2 Bland Ch. 603,
holding that proceedings of a trustee, under court of chancery, cannot be
investigated in bill filed on equity side of County Court; Perry lyifg. Co.
v. Brown, 2 Wood. & M. 469, Fed. Cas. 11,015, discussing the relative juris-
diction of State and Federal courts; Freeman* v. Timanus, 12 Fla. 410,
holding equity will not entertain bill to enjoin proceedings, where there is
good defense at law.
Relief in equity, other than appellate proceedings, against judgments^
decrees and other judicial determinations. Note, 54 Am. St. Rep.
261.
Power of State court to enjoin proceedings in Federal court. Note^
11 Ann. Cas. 744.
7 Ot. 281-284, 3 L. Ed. 348, B£ATTY V. STATE OF MABYIiAND.
Settlement of final account by Orphans' Court is not concluBive in an action
by creditors on an administration bond.
Cited in Nicholls v. Hodge, 2 Cr. C. C. 583, Fed. Cas. 10,231, holding that
creditors may contest the settlement of an executor's account and appeal;
Lupton V. Janney, 5 Cr. C. C. 477, Fed. Cas. 8607, where court was of
opinion that settlement was conclusive against •distributees and residuary
legatees, but not against creditors; Bank of Troy v. Topping, 13 Wend.
563, holding that creditors flfre not parties to proceedings until they have
received their dividends; Cameron v. Gibson, Walk. (Miss.) 503, holding
that an account was not conclusive between the parties where there was no
evidence that it had been passed upon ; Pulliam v. Pulliam, 10 Fed. 29, Fed.
Cas. 11,463a, where bill was brought by widow against an executor for
general settlement of account.
533 NOTES ON U. S. REPORTS. 7 Cr. 285-288
7 Cr. 285-286^ 8 L. ISd. 344, nNITQ> STATES ▼« TTUSB.
Jndges of lower court being divided on question under embargo act, it was
certified to Supreme Court for its direction.
Cited in United States v. Sanges, 144 U. S. 321, 86 L. Bd. 449, 12 Sup.
Ct. 613, to point as to manner of bringing up criminal «ases upon certificate
of division of opinion ; Forsyth v. United States, 9 How. 572, 15 K Ed.
268, where power of Supreme Court to revise judgments in criminal cases
was considered. • '
Valtmtion by Jury is not ne^sessary in prosecution, under embargo act^ for
loading goods on carriages witb an intent to transport tbem to Canada.
Ciited in Mason v. People, ^ Colo. 374, holding that in an indictment
for larceny jnry need not specially find value.
Miscellaneous. Cited in United States v. Mann, 1 CkiU. 181, 186, Fed.
Cas. 15,718, • holding that an offense punishable under the embargo^ act
of January 9, 1809, was not saved from repeal by the saving clause of
second section of the act of June 28, 1809, chapter 9; United States v.
New Bedford Bridge, 1 Wood. & M. 453, Fed. Cas. 15,867, to point that
whatever the law declares crime must be prosecuted by indictment, unless
remedy by information is specially given.
7 Ot. 287-288, 3 I.. Bd. 347, tJNITED STATES v. GOBDON.
ExceSBlye embargo bond executed under duress is void.
Cited in Jackson v. Simonton, 4 Cr. C. C. 261, Fed. Cafi^. 7147, holding
that no officer can take bond in his official capacity which he is not specially
authorized to take; Whitsell t. Womack, 8 Ala. 476, where bond was
given to release vessel under process; Hawes v. Marchant, 1 Curt. 139,
Fed. Cas. 6240, holding that statutory bond for liberties of prison, executed
under duress, is void ; United States v. Mynderse, 27 , Fed. Cas. 57, hold-
ing that bond which is extorted by a public official, containing conditions
different from those prescribed, is void; United States v. Jones, 77 Fed.
720, holding that no recovery could be had on bond given by assistant
melter and refiner of mint for prior defalcation.
Distinguished in McWhorter v. McGehee, 1 Stew. 555, where question
Wiis as to validity of sheriff's bond.
Writ of error will not lie to the Supreme Oourt of tbe United States from
a judgment in a cause carried to the Circuit Court by writ of error from tbe
District Court.
Cited in Sarohet v. United States, 12 Pet. 144, 9 L. Ed. 1033, holding
that cases at law can only be brought from Circuit Court by writ of error
and cannot be brought by appeal; Ex parte Crane, 5 Pet. 204, 8 L. Ed.
98, to point that ah enumeration of cases in which Supreme Court has
appellate jurisdiction is ati exclusion of all others ; Baker v. Biddle, 1 Bald.
403, Fed. Cas. 764, to point that jurisdiction of the Circuit Court must be
exercised within limits prescribed by organic law.
7 Cr. 288>299 NOTES ON U. B. REPORTS. 634
7 Cr. 288-290, 3 !•. Ed. 347» BABTOK V. PETIT.
Judgment on forthcoming 1>ond :miuit be reversed if Judgment upon- wlilcli
it was issued Is reversed.
Cited in Fowler v. Gibson, 4 Ark. 428, where court could see from
record that bond was for property levied upon under execution on judg-
ment; Mills V. Conner, 1 Blackf. 10, holding that if original judgment be
reversed, scire facias to revive cannot be supported ; Buckingham v. Bailey,
4 Sfnedes & M. 547, where judgment upon which forthcoming bond pur-
ported to be founded was void for want of jurisdiction; Gaspar v. State,
11 Ind. 548, where suit was brought upon forfeited recognizance taken in
prosecution under liquor act of 1853; White v. Crump, 19 W. Va. 593, and
State V. Blair, 29 W. Va. 476, both holding that sfupersedeas to the original
judgment will supersede judgment on delivery bond ; Hoy v. Couch, 5 How.
(Miss.) 194, where court said it was not necessary to enter formal motion
to quash latter.
On error to Judgment on forthcoming bond, where original Judgment re-
versed, court directed certiorari to clerk to certify execution so as to show
connection between two Judgments.
Approved in United States v. Dickinson, 213 U. S. 102, 63 L. Ed. 719, 29
Sup. Ct. 485, holding act of 1907 giving appeal to government in certain
criminal cases did not permit bringing up of criminal case for correction
of mere error; Whitney v. Dick, 202 U. S. 139, 60 L. Ed. 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 ; Amer-
ican Construction Co. v. Jacksonville etc. Ry. Co., 148 U. S. 380, 87 L. Ed.
490, 13 Sup. Ct. 762, to point that certiorari is an auxiliary process only to
supply imperfections in case already before court.
7 Cr. 290-299, 3 li. Ed. 348, MIMA QUEEK v. HEFBUBK.
Hearsay Is Incompetent to establish fact, which Is susceptible of proof by
witnesses who speak from own knowledge.
Approved in Donnelly v. United States, 228 U. S. 276, Ann. Gas. 1913E,
710, 57 L. Ed. 834, 33 Sup. Ct. 465, holding extrajudicial confession of third
person, since deceased, that he had committed the murder not admissible
on behalf of defendant ; Wong Yee Toon v. Stomp, 233 Fed. 197, holding
hearsay statement of Chinese inadmissible to establish fact that minor
son of merchant wa;s not son ; In re J. S. Appel Suit & Cloak Co., 198 Fed.
327, holding statements of bankrupt's agents inadmissible to show title of
goods shipped to bankrupt and claimed by shipper; Hanger v. United
States, 173 Fed. 58, 97 C. C. A. 372, holding incriminating statements of
wife of accused not admissible in prosecution for counterfeiting; Thomas
V. United States, 156 Fed. 915, 17 L. R. A. (N. S.) 720, 84 C. C. A. 477,
reversing judgment on verdict on hearsay evidence; Board of Commrs. v.
Keene Five-Cents Sav. Bank, 108 Fed. 511, refusing to admit self-serving
statements of municipality made by its agents, and written statements of
third parties filed in its office; Sheppard v. Austin, 159 Ala. 363, 48 South.
535 MIMA QUEEN v. HEPBURN. 7 Cr. 290-299
697, holding hearsay statement in slander aotion not admissible as admis-
sion of defendant under circumstances of case; Welch v. Lynch, 30 App.
D. C. 139, holding declarations of deceased children as «to business relations
of parents inadmissible to establish- pedigree ; Warner v. Marshall, 166 Ind.
121, 75 N. E. 592, holding self-serving declaration as to. meaning of will
inadmissible in action to quiet title; State v. Beeson, 155 Iowa, 360, Ann.
Cas. 1914D, 1275, 136 N. W. 319, declaration of third person, not part of
res gestae, inadmissible in murder trial ; Mallinger y. Sarbach, 94 Kan. 509,
146 Pac. 1150, testimony as to forgotten statement . held inadmissible ;
State V. Hammon, 84 Kan. 144, 113 Pac. 420, holding jurors who sat on
trial of another rape case involving same evidence not properly qualified;
Marler v. Texas etc. R. R. Co., 62 La. Ann. 731, 27 South. 178, refusing to
admit declarations made deliberately under pressure of questions; Knee-
land V. Great Western Elev. Co., 9 N. D. 53, 81 N. W. 69, applying rule with
regard to statements as to what was paid for certain flax; Glover v. Mill-
ings, 2 Stew. & P. 43, holding there was no exception to this rule where
one applied for freedom; Davis v. Wood, 1 Wheat. 8, 4 L. Ed. 23, holding
that evidence of general reputation was not admissible to prove freedom;
Brown v. Crandall, 11 Conn. 94, 95, holding general reputation to be inad-
missible to prove partnership; Sexton v. Hollis, 26 S. C. 235, 237, 1 S. E.
896, 897, and Taliaferro v. Pryor, 12 Gratt. 282, both holding that evidence
was inldmissibte to show reputation of ownership; People v. Fulton F. I.
Co., 25 Wend. 220, where on question of escheat, declarations of deceased
members and reputation existing in family were admitted ; Casey v. Inloes,
1 Gill 492, 39 Am. Dec. 669, holding facts of great antiquity and resting
in parol may be proved by hearsay; People v. Mayne, 118 Cal. 519, 62
Am. St. Rep. 257^ 50 Pac. 655, holding an entry in family Bible to be
iiieompetent where person making it was alive; Bradford v. Haggerthy, 11
Ala. 701, holding declaration by person as to his place of residence to be
hearsay; Ellicott v. Pearl, 1 McLean, 209, Fed. Cas. 4386, where evidence
to prove what deceased person had said in relation to certain boundary
was not admitted; Barker v. Pope, 91 N. C. 169, where court ruled out
question as to whether witness had ever heard of grantor's incompetence^
Hammond v. Noble, 57 Vt. 203, where there was introduced hearsay evi-
dence to prove incompetency of juror; Brown v. Foster, 41 S. C. 122, 19
S. E. 301, holding that evidence of general knowledge of fact that partner-
ship was dissolved was incompetent; United States v. MulhoUand, 50 Fed.
419, holding evidence of admission of theft by person since deceased was
inadmissible; Moore v. Greene, 2 Curt. 209, Fed. Cas. 9763, to point as to
admissibility of evidence of tradition to prove death; Scott v. Ratcliffe,
'5 Pet. 86, 8 L. Ed. 55, holding that hearsay evidence of death was admis-
sible; Hopt V. Utah, 110 U. S. 581, 28 L. Ed. 266, 4 Sup. Ct. 206, holding
that testimony of surgeon making post-mortem examination that third
person had identified body was inadmissible; Wells v. Compton, 3 Rob.
193, holding plats made by parish surveyor were admissible after his de-
cease; dissenting opinion in Insurance Co. v. Mosely, 8 Wall. 409, 19 L. Ed.
441, where question was as to admissibility of declarations as part of res
gestae; National Masonic Ace. Assn. v. Shryock^ 73 Fed. 778, 36 U. S.
7 Cr. 290-299 . NOTES ON U. S. REPORTS. 636
App. 658, holding that declarations of a person two hours after injury
were inadmissible; Silva v. Pickard, 10 Utah, 88, 37 Pac. 89, where cause
was reversed because of admission of self-serving declarations; Famer v.
Turner, 1 Iowa, 59, where court referred to admit a book of original entries
of firm to prove title in third person ; Oelrichs v. Ford, 21 Md. 514, holding
correspondence between principal and agent to be competent to prove con-
tract ; Ewing ^. Keith, 16 Utah, 322, 52 Pac. 7, rejecting parol statements
of party in his own favor, to prove deed lynd mortgage*
Proof of death. Note, 91 Am. Dec. 529.
Rule rejecting hearsay evidence applies to suits to establish freedom.
Cited in Walkup v. Pratt, 5 Har. & J. 56, holding shch evidence not ad-
missible to prove pedigree ; dissenting opinion in State v. Marshall, 137 Mo.
478, 479, 36^3. W. 620, to point that evidence admissible in pedigree case
is not admissible in a suit for freedom ; Gregory v. Baugh, 4 Rand. 615, 620,
holding evidence of reputation that an ancestor of the plaintiff was entitled
to her freedom was incompetent; Johnson v. Tompkins, 1 Bald. 577, Fed.
Cas. 7416, to point that on question of freedpm same rules of evidence as
in other contests~govern ; United States v. Morris, 1 Curt. 45, 48, Fed. Cas.
15,815, to point that evidence that a. person was bought and also as slave
was admissible; Marguerite v. Chouteau, 2 Mo. 77, holding that Indians
taken in war prior to 1769 by the French and sold as sla^ws, and Iheir de-
scendants, are slaves; Hamilton v. Wabash etc. Ry. Co., 21 Mo. App. 157,
holding that oral declarations of pedigree were admissible if declarant was
dead.
Rule that hearsay evidence Is Inadmissible to prove specific fact will not
be departed ftom because eye-witnesses to that fact are dead.
Approved in Louisville etc. R. Co. v. Murphy, 150 Ky. 182, 150 S. W.
82, and Englebretson v. Industrial Accident Commission, 170 Cal. 798, 151
Pac. 423, 10 N. C. C. A. 558, both following rule ; Stegall v. Stegall, 2
Brock. 263, Fed. Cas. 13,351, where court considered effect of general
^ reports in a neighborhood as to illegitimacy; Gregory v. Baugh, 2 Leigh,
679, 695, holding that in suit for freedom hearsay was inadmissible to
prove pedigree ; Taylor v. Glenn, 29 S. C. 297, 18 Am. St. Rep. 727, 7 S. E.
485 ; Alexander v. Gossett, 29 S. E. 423, 7 S. E. 816, and EUicott v. Pearl, 10
Pet. 437, 438, 9 L. Ed. 486, all holding that hearsay as to boundary was inad-
missible; Clement V. Packer, 125 U. S. 321, 81 L. Ed. 726, 8 Sup. Ct. 912,
where question was as to whether boundary could be proved by hearsay;
McEwen v. Portland, 1 Or. 304, 306, holding it to be error to admit evi-
dence of reputation to support title.
It Is too late to object to competency of a Juror after he Is sworn.
Approved in State v. Stephens, 11 S. C. 320, holding that objections to
the panel or to jurors must be made before jury were sworn; Costly v.
State, 19 Qa. 628, applying rule to challenge for nonresidence ; Tide Water
Canal Co. v. Archer, 9 Gill & J. 499, holding that objection that juror is
related comes too late upon inquisition; Page v. Danvers, 7 Met. 328, where
court refused to set aside verdict because some of jurors were irregularly
537 BANK OF COLUMBIA v. PATTERSON. 7 Cr. 299-307
fieleeted; Croy v. State, 32 Ind. 389, wher^ juror though resident was not
householder; Turner v. Hahn, 1 Colo. 28, and Kohl v. Lehlback, 160 U.*S.
301, 40 L. Ed. 435, 16 Sup. Ct. 307, where juror was an alien ; Presbury v.
Commonwealth, 9 Dana (Ky.), 204, where alienage was not known until
after verdiijt; People v. Wintermute, 1 Dak. 76, 46 N. W. 699, where court
considered as to when objection should be made to grand/ juror; Johns v.
Hodges, 60 Md. 222, 45 Am. Rep. 724, where juror was not of proper age;
Wentworth v. Famington, 51 N. H. 136, holding that objections to highway >^
commissioners must be made before they have entered on their duties;
Livingston v. Heerman, 9 Mart. (0. S.') 701, where eourt did not decide
question, but left it open.
Jnror Is Incompetent in suit for freedom who avows detestation of slavery
to be sncli that in doubtful case, or if testimony were equal, he would find for
plaintiff.
Approved in United States v. Angney, 6 Mackey (D. C.) 89, holding
verdict would not be disturbed for mere technical reason that juror was
incompetent, where moving party not injured; Ciioteau v. Pierre, 9 Mo.
7, holding that in a suit for freedom it was good cause of challenge if
juror should feel bound in conscience to find for plaintiff; Smith v. Eames,
3 Seam. 77^ 36 Am. Dec. 516, holding that juror with decided opinions was
subject to challenge for cause; Connors v. United States, 158 U. S. 413,
39 L. Ed.' 1035, 15 Sup. Ct. 953, where court refused to allow juror to be
asked if his political or party predilections would bias his judgment ; Milan
V. State, 24 Ark. 354, holding that one who would convict negro on less
evidence than he would white man was incompetent; Sto«ts v. State, 108
Ind. 417, 9 N. E. 381, to point that person prejudiced against* a busi-
ness so that he would doubt testimony of one engaged in it is incom-
petent; People V. BodinC; 1 Den. 309, where effect of fixe4 opinion as to
guilt was considered.
Rejection of jurors for bias. Note, 9 Am. St« Rep. 746*
7 Cr. 299-307, 3 K Bd. 351, BANK OF 00I.X7MBIA ▼. PATTEBSOIT.
Assmnpsit lies to recover stipulated price due on special contract not under
seal, where contract fully executed.
Approved in Stephens Lumber Co. v. Cates, 62 Fla. 388, 56 South. "300,
holding on part performance party performing could sue for actual value
of labor and materials which promisee accepted and enjoyed ; Board etc. v.
Gibson, 158 Ind. 483, 63 N. E. 986, holding assumpsit lies on executed
building contract which fixes only maximum price; Third Nat. Bank v. St.
Charles Savings Bank, 244 Mo. 602, 149 S. W. 509, sustaining count for
money had and received where guaranty under which money was paid was '
void for want of authority to execute it ; Hilliard v. Douglas Oil Fidds, 20
Wyo. 216, 122 Pac. 629, holding where nothing remained to be done under
contracts except compute expenditure, action on account could be main-
tained without suing on contracts; Arnett v. Evans, Walk. (Miss.) 473, and
Brackett v. Hammond, 2 Cr. C. C. 56, Fed. Cas. 1916, both holding that
7 Cr. 299-307. NOTES ON U. S. REPORTS. 638
although special contract existed, plaintiff may recover on common counts;
Hansur v. Botts, 80 Mo. 655, holding assumpsit would lie on special con-
tract where nothing remained to he done hut pay money ; Corhett v. Lucas,
4 McCord, 328, where court said consideration is distinct substantive cause
of action independently in some sort of the contract; Lyell v. Superv. of
Lapeer Co., 6 McLean, 450, Fed. Cas. 8618, where plaintiff brought assump-
sit and declared specially upon county order; Goshom v. Stewart, 15 W.
Va. 662, holding assumpsit would lie for use and occupation where agree-
ment was not by deed; Williams v. Sherman, 7 Wend. 110, holding that in
an action for use and occupation plaintiff may avail himself of agreement
not under seal ; Thomas v. Dickinson, 12 N. Y. 370, where court said that in
contract of eicchange executed by plaintiff, he could recover any balance
under common counts ; Dukes v. Leowie, 13 Ala. 459, holding assumpsit would
lie on an executed parol contract ; Welsh v. Welsh, 5 Ohio, 432, to point that
where contract has been put an end to by defendant plaintiff may recover
on common counts; Wheeler v. Curtis, 11 Wend. 665, holding that under
contract of charter-party assumpsit would lie for freight; Eggfeston v.
Buck, 24 111. 264, and Hancock v. Ross, 18 Ga. 365, where assumpsit was
brought on special contract for sale of goods; Holbrook v. Armstrong, 10
Me. 39, where assumpsit was brought for price of cows .delivered to de-
fendant to be returned in a certain time or paid for; Mitchell v. Gile, 12
N. H. 391, where one agreed to deliver goods to another, other to deliver
to plaintiff goods of similar nature on demand ; Peltier v. Sewall, 12 Wend.
388, where vendor sold goods agreeing to retain one-half interest, and
vendee sued in assumpsit for one-half the loss ; Pool v. Tuttle, 11 Me. 472,
26 Am. Dec. 558^ holding that if purchaser of goods gives another's note
and it is not paid, assumpsit lies ; N. O. etc. R. R. Co. v. Pressley, 45 Miss
71, holding that where there is special agreement to pay for goods in any
other way than money, it must be specially declared on; Holden Steam
Mill Co. V. Westervelt, 67 Me. 450, holding in an action for goods fur-
nished under an express contract, plaintiff cannot abandon such contract
and recover on an implied one ; Lanier v. Chappell, 2 Fla. 630, holding that
assumpsit would lie for hire of slaves , although note had been given ;
Walker v. Brown, 28 111. 385, 81 Am. Dec. 290, where work was done under
special contract; Newman v. McGregor, 5 Ohio, 352, 24 Am. Dec. 295, and
Feeter v. Heath, 11 Wend. 484, both holding that under special contract
to do work one may recover in assumpsit; Throop v. Sherwood, 4 Gilm.
98, where assumpsit was brought for work and labor done, and on an
account stated; Londregon v. Crowley, 12 Conn. 562, where there was a
special contract for. personal services, and plaintiff had declared on special
contract and failed in his proof because of variance ; Cranmer v. Graham,
1 Blackf. 408, where there was special contract to pay one certain
amount per month for twelve months for work done; Girohan v. Dailey, 4
Ala. 340, where party contracted to serve another for year, and it was
held the entire service was condition precedent to recovery; Emslie v.
City of Leavenworth, 20 Kan. 569, assumpsit against city for work done
on bridge contract ; Chesapeake etc. Canal Co. v. Knapp, 9 Pet. 566, 9 L. Ed.
231, where assumpsit was brought to recover money due for construction
539 BANK OP COLUMBIA v. PATTERSON. 7 Cr. 299-307
of locks; Cook v. Linn^ 19 N. J. L. 20, holding that one who at another's
request discharges sum of money dae may recover in assumpsit; Ridgely
V. Crandall, 4 Md. 441, assumpsit on contract to pay difference in value
on a partition ; Ford v. Rockwell, 2 Colo. 377, where an action was hrought
for board and tuition furnished to appellant's nephew at appellant's re-
quest; Bertrand v. Byrd, 5 Ark. 657, holding that if speoial contract remains
open and unperformed, or is for anything else than the payment of money,
assmnpsit will ftot lie; Beck v. Pearse, 1 Bail. 156, holding that assumpsit
would not lie under building contract to be paid for in installments ; State
y. Harmon, 15 W. Va. 124, holding that assumpsit. would not lie on bond;
Garred v. Maecy, 10 Mo. 165, to point that assumpsit will not lie on special
contiiact under seal which has been fully executed; Kerstetter v. Ray-
mond, 10 Ind. 203, where court said that if defendant in assumpsit would
avail himself of special contract he must plead it ; Weart v. Hoagland, 22
N. J. L. 519, holding special contract was admissible in assumpsit to fix
price stipulated.
Sealed Inatnmient does not extinguish simple contract where it merely
recognizes existing de'bt, and provides mode to ascertain* itii amount and liqui-
dation.
Cited in Langdon v. Paul, 20 Vt. 221, holding that sealed instrument
certifying that maker had executed certain .notes and waiving the statute
of limitations did not supersede remedy on notes; Baker v. Baker, 28
K. J. L. 18, 75 Am. Dec. 247, holding that taking of higher security extin-
guishes those of inferior degrees ; Beede v. Fraser, 66 Vt. 119, 44 Am. St.
Bep. B28, 28 Atl. 882, on effect of higher security merging lower; Wallace
▼. Fairman, 4 Watts, 379, holding note undw seal with warrant to con-
fess judgment did not extinguish original debt.
Special agreements are admissible under general covnts in indebitatus as-
nunpsit.
Cited in Keyser v. District No. 8, 35 N. H. 483, holding that one selling
building may recover amount in assumpsit; Stout v. Gallagher, 2 A. K.
Marsh. 160, where under such count special agreement for work was held
admissible; Schwartzel v. Karnes, 2 Kan. App. 785, 44 Pac. 42, holding
assumpsit would lie on special contract for services where plaintiff had
fully performed; Lawson v. Williamson Coal So Coke Co., 61 W. Va. 679,
57 S. £. 262, arguendo.
Corporation may by corporate act, not under corporate seal, appoint agent
whose acts and contracts hind It.
Appreved in International Seal Co. v. Beyer, 33 App. D. C. 177, holding
answer under oath of corporation by proper officer need not have corporate
seal attached; Brown Mfg. Co. v. Gilpin, 120 Mo, App. 134, 96 S. W. 669,
holding appeal bond of corporation signed by treasurer sufficient without
seal or attestation of secretary ; Young v. United States Mortgage & Trust
Co., 214 N. Y. 285, 108 N. E. 420, holding corporation bound by informal
contract of executive committee to pay salary to president; W. B. Mershon
& Co. V. Morris, 148 N. C. 52, 61 S. E. 648, upholding contract of cor-
7 Cr. 299-307 NOTES ON U. S. REPORTS. 640
.. poration executed by president without seal; Green v. State, 8 Ohio, 314^
where the appointment of a superintendent was by parol; Everett v. United
States, 6 Port. 182, SO Am. Dec. 588, and State v. AUis, 18 Ark. 280, botli
. holding that corporation may appoint agent whose acts within his powers
wBuld be valid without seal; Fitch v. Lewiston Steam Mill Co., 80 Me.
38, 12 *Atl. 734, holding that this was rule whatever purpose of agency;
Garvey v. Colcock, 1 Nott & McC. 233, holding that while a corporation
cannot act directly except under seal, it may appoint b/ vote an agent
whose acts will be binding; Davis v. Memphis etc. Ry. Co., 22 Fed. 886,
to point that a president may employ attorneys without any contract
under seal; Osbom v. United States Bank, 9 Wheat. 829, 6 L. Ed. 226,
holding that it was unnecessary for an attorney to produce authority
under seal; The Banks v. Poitiaux, 3 Rand. 143, 147, 15 Am. Dec. 708, 711,
holding corporate seal was not essential to an agreement to convey real
estate; Female Orphan Asylum v. Johnson, 43 Me. 184, holding that cor-
poration empowered to make contracts in writing is not thereby authorized
to confer tha^ power on their officers ; Savings Bank v. Davis, 8 Conn. 207,
210, to point that corporation cannot convey or mortgage except by its
corporate seal; Union Bank v. Ridgely, 1 Har. & G. 421, holding that acts
of corporations may now be evidenced by writing without seal; Hamilton
V. Lycoming Ins. Co., 5 Pa. St. 344, holding that corporations may con-
tract by parol within sphere of their proper functions; Crawford v. Long-
street, 43 N. J. L. 329, holding lease for years, need not be under seal;
Commercial Bank v. Newport M. Co., 1 B. Mon. 14, S5 Am. Dec. 172, and
Butts V. Cuthbertson, 6 Ga. 171, both holding that note given by an agent
within his powers bound the corporations ; Garrison v. Combs, 7 J. J. Marsh.
85, 22 Am'. Dec. 121, holding seal was not necessary to pass interest in
note ; Eastman v. Coos Bank, 1 N. H. 26, holding express vote is not neces-
sary to authorize cashier' to deliver notes for collection; Gottfried v.
Miller, 104 U. S. 527, 26 L. Ed. 853, holding corporation may assign letters
patent without seal ; in The Cape Sable Co.'s Case, 3 Bland. Ch. 610, Poult-
ney v. Wells, 1 Aik. 184, and Baptist Church v. Mulford, 8 N. J. L. 186,
all holding that assumpsit lies against corporation; Saxtoi^ v. Texas etc.
R. R. Co., 4 N. M. 385 (203), 16 Pac. 854, Damon v. Granby, 2 Pick. 353,
and State v. Allis,,18 Ark. 278, to point that seal of an agent is not the
seal of the corporation ; Union Bank v. Jacobs, 6 Humph. 519, holding that
a corporation created to construct road may borrow money, although char-
ter directs that funds shall be raised by subscription; Dennis v. May-
nard, 15 111. 478, holding that warrant issued by tax commissioners without
seal was valid.
Denied in Frankfort Bank v. Anderson, 3 A. K. Marsh. 3, holding that
a corporation can 6nly bind itself by a seal, and that a banking corporation
is no exception.
Necessity for corporate seal to notes. Note, 13 Am. Dec. 562.
Effect of failure to affix seal to instrument executed by corporation.
Note, Ann. Gas. 1915A, 1065.
Requisites of contracts by corporation. Note, 6 £• R. C. 324.
641 BANK OF COLUMBIA v. PATTERSON. 7 Cr. 299-397
Parol contracts by antboiized agents are express promises of corporation,
and all duties lmi>osed on tliem by law, and all benefits conferred at tlielr
request, raise. implied promises binding on corporation. ' ^
Approved in Michigan v. Leeds, 24 Ind. App. 274, 55 N. E. 800, holding
where mayor authorized to contract for > office room he was authorized io
make a ten^year lease ; Beach v. Stouffer, 84 Mo. App. 398, admitting parol
evidence of acts of board of directors in fixing salary of officer where writ-
ing lost; Adam v. New England Inv. Co., 33 R. I. 204, 80 Atl. 430, holding
corporation bound by contract to purchase stock of another corporation,
benefit of which it had accepted ; Moss v. Averell, 10 N. Y. 454, and Kelly
v. Board of Public Works, 75 Va. 271, to point that corporation may bind
itself in any way that a natural person may bind himself; Badger v. Bank
of Cumberland, 26 Me. 435, holding that authority need not be proved by
record or writing; Southern Hotel Co. v. Newman, 30 Mo. 121, to point
that promises may be implied from its acts and acts of its agents; Union
Bank v. Ridgely, 1 Har. & G. 413, holding a corporation may be bound by
the acts of its agents not "reduced to writing; Garrison v. Combs, 7 J. J.
Marsh. 88, 22 Am. Dec. 124, holding agent within his authority may bind
by any agreement which if made in his own right would bind him; In re
Troy Woolen Co., 8 N. B. R. 414, 24 Fed. Cas. 246, to point that party
dealing with agent acting for benefit of his principal may sue principal;
Mott V. Hicks, 1 Cow. 532, 537, 18 Am. Dec. 552, 556, holding corporation
to bcf liable in assumpsit for simple contracts of its ageiits within their
authority ; Cram v. Bangor House Proprietary, 12 Me. 357, holding assump-
sit would lie where directors acting within their authority contracted under
their own seals; Stamford Bank v. Benedict, 15 Conn. 445, holding verbal
direction from directors to a cashier is sufficient authority; pavenport v.
Peoria M. & F. I. Co., 17 Iowa, 283, holding that acts of corporation evi-
denced by vote are as binding as most solemn acts.uijder seal; Preston v.
Missouri & Penn. Lead Co., 51 Mo. 45, holding officers may confer author-
ity on agent to draw and execute bills of exchange for the company J^ Bank
of the United States v. Dandridge, 12 Wheat. 74, 100, 101, 106, 114, 6
L Ed. 556, 565, 567, 570, holding that bond, of a cashier need not be accepted
to enable him to enter upon hi^ duties ; Ohio etc. R. R. Co. v. Middleton,
20 111. 636, to point that signature of corporation, to contract executed by
agent is not material; Richards v. Merrimac etc. R. R. Co., 44 N. H. 135,
to point that notes signed by office:irs acting within their authority are
binding; Kramrath v. City of Albany, 127 N. Y. 581, 28 N, E. 401, where
coiirt said that the contract must be within sco}>e of corporate powers,
and not required to be made in particular way; Mount Sterling etc. Tp.
Co. V. Looney, 1 Met, (Ky.) 552, 71 Am. Dec. 493, holding that to bind
corporation by contract of its president, power under act of incorporation
or ratification must be shown ; Savings Bank v. Davis, 8 Conn, 202, hold-
ing an agent or attorney may be appointed and authorized to convey realty
by a vote of the directorsji without seal ; Baptist Church v. Mulf ord, 8
N. J. L. 193, holding assumpsit would lie against trustees of a church in
their corporate capacity, for work and labor and goods sold; McKim v.
Odom, 3 Bland Ch. 421, to point that an answer of representative of cor-
7 Cr. 299-307 NOTES ON U. S. REPORTS. 642
poration in a suit against it is received as evidence against the corfK>ra-
tion itself; Eagle Woolen Mills Co. v. Monteith, 2 Or. 288, on the point
that a deed by an agent most be in name of the corporation; Crowley v.
Grenesee Min. Co., 56 Cal. 277, on the point that a corporation is bound by
acts of its officers if it so acts as to deceive third persons; Tracy v. Tal-
mage, 14 N. Y. 191, 67 Am. Dec. 161, to point that a corporation may
become liable on contract founded upon moral obligation; New York etc.
R. R. Co. V. Schuyler, 34 N. Y. 86, holding that corporation wrongftilly
permitting the transfer of stock was liable upon an implied promise; San
Antonio v. Lewis, 9 Tex. 70, where action was brought against city on con-
tract by a mayor under parol authority by board of aldermen; Russell v.
Mayor etc. of N. Y., 2 Denio, 473, where plaintiff sued on assumpsit for
merchandise blown up by order of mayor and aldermen; Memphis v.
Adams, 9 Heisk. 629, 24 Am. Rep. 338, holding city may, without express
authority, employ counsel to attend to the corporate interests ; Chapman v.
City of Brooklyn, 40 N. Y. 380, holding city is liable to refund proi>erty
received under contract, whos^ consideration has failed; Bushel v. Com-
monwealth Ins. Co., 16 Serg. & R. 176, where the court said that with
multiplication of corporations there had been corresponding change in law
relating to them; Chestnut Hill T. Co. v. Rutter, 4 Serg. & R. 16, 8 Am.
Dec. 676, trespass on case lies against corporation for tort.
Distinguished in Crescent City Bank v. Carpenter, 26 Ind. 113, holding
that assignment to cashier was assignment to him personally and not to
bank.
Denied in Waller v. Bank of Kentucky, 3 J. J. Marsh, 203, holding cor-
poration can only contract through medium of its corporate seal.
Assumpsit will lie against a corporation on an implied contract.
Cited in Joiies v. Trustees etc., 46 Ala. 630, on agreement to pay certain
sum as an endowment; Selma v. Mullen, 46 Ala. 414, holding assumpsit
would lie against city upon an express or implied promise; Seagraves v.
Alton, 13 111. 371, assumpsit against city for the support of pauper; Randall
V. Van Vechten, 19 Johns. 66, 10 Am. Dec. 196, holding assumpsit would
lie against city on contract by its agents under their own seals; Dunn v.
St. Andrew's Church, 14 Johns. 119, assumpsit against church for work
and labor by clerk of the church ; Steele v. Oswego etc. Mfg. Co., 15 Wend.
266, holding assumpsit would not lie on note to which corporate seal was
attached; McCuUough v. Talladega Ins. Co., 46 Ala. 378, an assumpsit on
a written contract to pay money; Foster v. Essex Bank, 17 Mass. 503, 9
Am. Dec. 174, to point that actions lie against corporations same as against
individuals ; dissenting opinion in Mott v. Hicks, 1 Cow. 542, 13 Am. Dec.
560, holding assumpsit lies against corporation on simple contracts of its
agents ; Worrall v. Munn, 5 N. Y. 243, 245, 55 Am. Dec. 339, 340, to point
that assumpsit lies on contract by an agent under seal where his authority
was by parol ; People ex rel. Lynch v. Mayor etc. of N. Y., 25 Wend. 685,
to point that assumpsit will lie for neglect of corporate duty; Ex parte
Lynch, 2 Hill, 46, another phase of the same case; Kortright v. Buff.
•Comm. Bk., 20 Wend. 94, holding assumpsit would lie against corporation
refusing to permit transfer of its stock; Wyman v. American Powder Co.,
/
/
543 BANK OF COLUMBIA v. PATTERSON. 7 Cr. 299-^07
«
8 Cash. 181, holding assumpsit lies on refusal to give the owner of stock
certificates on demand; Bank of State v. Harrison, 66 Ga. 700, holding that
mandamus wonld not lie to compel a transfer of stock; Childs v. Bank of
Missouri, 17 Mo. 216, holding that actions of malicious prosecution, slander,
or false imprisonment would not lie against corporations.
Distinguished in Orr v. Bank of the United States, 1 Ohio, 42, 18 Am.
Bee 590, holding that action of assault and battery will not lie against
corporation.
OorporationB can make promlBes and enter into contracts without express
antbority.
Approved in Passino v. Brady Brass Co., 83 N. J. L. 421, 84 Atl. 616,
holding question for jury whether employment by corporation for year
had been continued by its conduct; Welland Canal Co. v. Hathaway, 8
Wend. 484, 24 Am« Dec. 65, to point that a corporation can only bind itself
in pursuance of powers given it; Sanborn v. Fireman's Ins. Co., 16 Gray,
^ ^^9 77 Am« Dec. 421, holding insurance companies could make oral con-
\ tracts though authorized to make contracts by signature of president;
Betweiler v. Breckenkamp, 83 Mo. 63, on the point that corporations have
power to make contracts necessary and usual in the course of their busi-
ness ; First National Bank v. North Mo. C. & M. Co., 86 Mo. 140, holding
that authority of corporation to issue note need not be expressly given;
Falckner v. United States Bank, 8 Wheat. 358, 6 L. Ed. 636, to point that
the common law cannot control by implication the powers of corporation
«nder statute; Planters' Bank v. Sharp, 6 How. 322, 323, 12 L. Ed. 466,
^^Z holding that statute limiting the powers of chartered banks to contract
^as unconstitutional.
'^'^resiimption as to ratification of contract of agent of corporation.
-Approved in The Sappho, 94 Fed. 551, holding corporation bound by acts
^^ oflg^ei^ in making contract for repair of vessel; Ogden City v. Weber
s iZ ^^ Utah, 136, 72 Pac. 435, holding city furnishing relief to indigent
^^' * ^^n refusal of county commissioners to furnish such relief, may main-
,j^- ** ^^.ction to recover from county sum expended by it on refusal of com-
^ ® doners to reimburse it for means necessarily expended, and need not
l^^**t to mandamus against commissioners; Leggett v. New Jersey Manu-
Q ^^^>:«r8, 1 N. J. Eq. 557, 2S Am. Dec. 737, holding corporation may ratify
gi ^^'thorized acts of its agents; Meliedge v. Boston Iron Co., 6 Cush. 175,
j^l^^^^^^^n. Dec. 67, to point that corporation acting on contract of an agent
g^^^^s it; Skinner v. Dayton, 19 Johns. 550, 558, 10 Am. Dec. 305, and
j(j,^'^^^nt V. Franklin Ins. Co., 8 Pick. 98, 19 Am. Dec. 309, to point that
pp '-^^^mct by agents under their seals is binding on corporation when it
l^^^^^i^ized the contract ; Pittsburgh etc. Ry. Co. v. Keokuk etc. Bridge Co.,
tj^^ XJ. S. 381, 33 L. Ed. 160, 9 Sup. Ct. 773, holding contract by president
p^^m to directors and not disapproved by them binds corporation; Union
^1^^ - Ry. Co.. V. Chicago etc. Ry. Co., 51 Fed. 327, 10 U. S. App. 98, holding
^^^« '^ contract letting another railroad into joint use of the company's
^^^l^e was binding, although never formally ratifted; Missouri Pac. R. R.
^^ V. Stdell, 67 Fed. 469, 35 U. S. App. 152, holding that contract made
7 Cr. 307-^27 . NOTES ON U. S. REPORTS. 644
to pay for construetion of an extension of the road was valid, although
never approved by stockholders; American Exchange National Bank v.
First National Bank, 82 Fed. 972, 48 U. S. App. 652, holding fact that
directors umte in making guaranty note to secure loan previously arranged
for by cashier, is evidence of ratification for cashier's acts; Mason v.
Crosby, 1 Wood. & M. 358, Fed. Cas. 9234, holding principal could not
receive proceeds of sale by an agent without being liable civilly for his
fraudulent representations; Merchants' Bank v. Central Bank, 1 Oa. 428,
44 Am. Dec. 6fi6, holding that corporation by uiSe of property and receipt
of benefit under contract, ratifies it; Legrand v. Manhattan Mercantile
Assn., 80 N. Y. 639, to point that contract of hiring by manager of corpo-
ration is binding When it was known and assented to by directors; Union
Bank v. Ridgely, 1 Har. & G. 427, to point that money paid on contract
of an agent is evidence of ratification; Durar v. Hudson County etc, Ins^ Co.,
24 N. J. L. 201, to point th^t an entry made by the secretary in books, and
subject at all times to inspection, presupposes authority to make it ; Logans-
port V. Dykeman, 116 Ind. 19, 17 N' E. 590, and S^n Francisco Gas Co. v.
San Francisco, 9 CaL 471, both holding that city could not receive benefit
of services and property and then deny its liability; Keyser v. District
No. 8, 35 N. H^ 481, holding that school district by claiming building under
purchase in its behalf, ratifies action of committee; Peterson v. Mayor etc.
of N. Y., 17 N. Y. 453, holding resolution adopting plans prepared at re-
quest of committee not authorized, and directing erection- of building was
ratification ; Goshom v. County Court^ 42 W. Va. 740, 26 S. E. 454, where
court said that if municipality obtains property without authority, law,
independent of statute, will compel restitution; Fullam v. Inhabitants of
West Brookfield, 9 Allen, 5, holding that where town committee makes
contract binding only themselved, town revoking authority and prohibiting
execution is not liable; Taylor v. Lambertville, 43 N. J. Eq. 110, 10 Atl.
811, holding city liable under an implied contract to pay for gas for year
where it accepts gas for any considerable portion of year; Cady v. Shep-
herd, 11 Pick. 406, 22 Am. Dec. S83, holding partner may bind his copart-
ner by contract under seal, provided copartner assents to or ratifies the
contract ; Herbert v. Hanrick, 16 Ala. 59Q, holding subsequent parol ratifi-
cation by partner of deed by his copartner was adoption of deed; Worrall
V. Munn, 5 N. Y. 242, 55 Am. Dec. 338, where partner's power to bind his
copartner by deed was discussed.
Papol evidence to vary, etc., written contract. - Note, 17 L. R. A. 272.
Miscellaneous. Cited in McEntee v. Kingston Water Co., 165 N. Y. 32,
58 N. E. 786, holding customer may enjoin shutting off of water supply
for nonpayment, where company fails to furnish sufficient water as per
contract.
7 Cr. 307-327, 3 L. Ed. 354, CIiABK ▼. OABBIKGTON.
Judgment against person to be indemnified, obtained on notice to war-
rantor, is admissible In suit against Mm on indemnity.
Cited in dissenting opinion in Middkton v. Thompson, 1 Spear, ^4,
holding that reasonable notice to a warrantor to come in and defend is
\
545 DICKEY v. BALTIMORE INS. CO. 7 Cr. 327-332
sufficient ; Brown v. Chaney; 1 Ga. 414, where court said that to make such
a judgment conclusive, notice was indispensably necessary; Boston v.
• Worthington, 10 Gray, 499, 71 AnL Dec. 679, where question was as to the
conclusiveness of judgment d^ainst city for defects in highway, as against
tenant of the land; Littleton v. Richardson, 34 N. H. 187, holding party
obstructing a highway bound by judgment by traveler against town because
of it; Gibson v. Love, 2 Fla. 616, holding that surety is in privity with
judgment rendered against his cosurety; Lacock v. Commonwealth, 99 Pa.
St. 210, to point that a judgment .gainst surety is evidence against his
principal; The Alert, 40 Fed. 837, to point that notice by the charterers of
proceeding in rem against ship bound them; Holbrook v. Holbrook, 15 Me.
12, action upon promise to indemnify plaintiff against all claims by one to
whom he had previously given bond to convey; Salle v. Light's Exrs., 4
Ala. 707, 39 Am. Dec. 320, holding judgment against vendee by third per-
son is not evidence that vendor had no title ; Carpentier v. Pier, 30 Vt. 88.
73 Am. Dec. 291, holding that one transferring note with a warranty wa^
privy so as to be bound by judgment ; Smeltzer v. White 92 U. S. 394, 23
L Ed. 509, to i)oint that warrantor is concluded by judgments if he had
reasonable notice^ and was required to assist ; New York etc. Co. v. Pro-
tection Ins. Co., 1 Story, 462, Fed. Cas. 10,216, to point that if notice of
suit upon original policy is given reassurers, they must act upon such
aotice within reasonable time; Kessler v. McConachy, 1 Rawle, 446, to
I point that judgment ascertaining precise fact, character or privilege, is
j always evidence where it comes in question.
I Judgments as evidence against persons liable to defendants. Note, 83
/ Am. Dec. 385.
Conclusiveness of judgment, whethef judgments creates estoppel in
favor of one who was not a party to nor bound by the prior litiga-
tion. Note, 2 Am. St. Bep. 878. ^
'^'^ect upon surety of judgment against principal. Note, 40 L. R. A.
iHf. S.) 726.
Gotten forming part of correspondence between parties relating to trans-
^^^'^sfcK'6 admissible In actions Involylnff those transactions.
^^^^ in Wilhite v. Houston, 200 Fed. 393, 118 C. C. A. 542, arguendo.
1 ^ ^^^^^332, 3 In Ed. 360, DICKEY v. BALTIMOBE INS. 00.
V^^^^zance at and from an Island Insures vessel while coasting from port
k ^<^ of the Island for purpose oX voyage Insured.
^^ted in Equitable Ins. Co. v. H^arne, 20 Wall. 497, 22 L. Ed. 399, where
jicy on voyage ''from Liverpool to Cuba and to Europe via Falmouth ''
^58 construed.
Distinguished in Heam v. New England M. M. S. Co., 3 Cliff. 325, Fed.
Cas. 6301, holding that word ''port'' does not mean "port or ports."
Admissibility of evidence of custom or understanding of merchants to
explain ambiguous expressions in policy. Note, 14 £. R. 0. 47.
I— 85
7 Cr. 332-338 NOTES OJt U. S. REPORTS. 646
7 Or. 33^-338, 3 L. Ed.. 862, MABINE INS. CO. OF AICZAKDBIA ▼.
HODOBOK.
Equitable relief against judgments. #
Approved in Farmers' etc. W. H. Co. v. Pridemore, 55 W. Va. 463, 47
S. E. 263, reaffirming rule ; Pickford v. Talbott, 225 U. S. 658, 56 L. Ed.
1246, 32 Sup. Ct. 687, holding defense against enforcement of judgment
on ground of newly discovered evidence not made out^ Wliitcomb v.
Shultz, 223 Fed. 273, 138 C. C. A. 510, dismissing suit to enjoin judgment
where fraud in procuring contract sued on was not shown, though it could
not have been pleaded in suit; Christy v. Atchison etc. Ry. Co., 214 Fed.
1022, holding suit to set aside judgment barred by laches; Singer Sewing
Mach. Co. V. Benedict, 179 Fed. 638, 103 C. C. A. 186, holding bill to enjoin
collection of tax not alleging property subject to distraint stated no ground
for relief; F. H. Peavey & Co. v. Union Pac. R. Co., 176 Fed. 417, holding
parties injuriously affected by orders of interstate commerce commission
could sue to enjoin, suspend or annul such orders; Miller v. Mai^iie, 149
Fed. 698, denying equity jurisdiction to set aside town site deed for fraud
where facts and circumstances preventing complainants from having notice
of hearing and opportunity to. protect rights before trustee not alleged;
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 invoking equitable aid to enjoin profit-
cution of action; In re Roukous, 128 Fed. 646, holding composition with
creditors for fraud will be set aside where bankrupt made false schedule,
where petitioning creditor did not know of such fraud until after con-
firmation, notwithstanding recital in order of confirmation that bankrupt
had not been guilty of acts jrhich would bar discharge; National Surety
Co. V. State Bank, 120 Fed. 598, holding Federal courts may enjoin un-
conscionable State judgments; L. Bucki etc. Lumber Co. v. Atlantic Lum-
ber Co., 116 Fed.- 5, reducing amount of judgment on ground of mistake;
Holton V. Davis, 108 Fed. 149, holding equity will enjoin judgment procured
by fraud, where it is shown that but for the fraud the judgment would
not have been rendered; Pittsburgh etc. St. Ry. Co. v. Keokuk etc. Co.,
107 Fed. 786, holding that bill of review on ground of fraud must show
how fraud was discovered, and why it could not have sooner been dis-
covered; Allen V. Allen, 97 Fed. 529, holding that fraud must be success-
ful in order to impeach judgment; Perry v. Johnston, 95 Fed. 325, re-
lieving against judgment which was affirmed without notice, contrary to
stipulation; 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; In re Walker's Estate, 160 Cal. 549,
36 L. R. A. (N. S.) 89, 117 Pac. 511, where will was discovered after decree
of distribution in probate, devisees could recover in equity from dis-
tributees and will cx>uld therefore be probated; Bacon v. Bacon, 150 Cal.
487, 491, 89 Pac. 321, 322, setting aside decree of distribution made under
mistake in terms of will; Curtis v. Schelly 129 Cal. 215, 79 Am. St. B«p.
547 MARINE INS. CO. v. HODGSON. 7 Cr. 332-338
112» 61 Pac. 953, holding equity would relieve against fraudulent probate
decree of sale, by taking charge of proceeds without setting aside probate
order; Talbott v. Pickford, 36 App. D. C. 298, refusing to enjoin judgment
in libel suit where injunction was sought on ^ound of newly discovered
evidence ; Brooks v. Twitchell, 182 Mass. 446, 94 Am. St. Rep. 665, 65 N. E.
844, allowing equitable relief where default judgment was entered contrary
to agreement; Steele v. Bliss^ 170 Mich. 192, 135 N. W. 933, setting aside
default judgment against garnishee obtained on representation that noth*
ing further would be done in case; Jackson v. Chestnut, 151 Mo. App.
280, 131 S. W. 749, setting aside default judgment when attorney failed
through illness to plead defense; Engler v. Kndblaugh, 131 Mo. App. 493,
110 S. W. 21, holding execution of judgment falsely entered with mistaken
conditions should be restrained; Schwaman v. Truax, 179 N. Y. 44, 103
Am. St. Rep. 832, 71 N. E. 467, setting aside judgment and sale in partition,
whete plaintiff had by fraud been deprived of power to bid at sale and
defendant bid in property at less than value ; Bri^egger v. Cartier, 20 N. D.
79, 80, 126 N. W. 494, holding complaint stated cause of action for relief
from judgment; Hockaday v. Jones, 8 Okl. 163, 56 Pac. 1056, denying
jurisdiction to enjoin execution of and annul default judgment obtained
without service; Bowsman v. Anderson, 62 Or. 441, 123 Pac. 1095, setting
aside judgment based on probate proceedings and sale thereunder con-
ducted in fraud of decedent's heirs by one falsely claiming to be creditor;
McMahen ▼. Whelan, 44 Or. 406, 75 Pac. 71&, judgment for plaintiff in
justice court in unlawful detainer, nor its af&rmance on appeal, does not
estop defendant suing for specific performance of verbal lease and to en-
join judgment; Do well t. Goodwin, 22 R. I. 291, 47 Atl. 695, enjoining
enforcement of judgment obtained by fraud in service of writ; Heam 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; Adams v.
First Nat. Bank (Tex. Civ.), 52 S. W. 643, refusing equitable relief where
fraud in procuring judgment not alleged; Spokane et^. Min. Co. v. Pear-
son, 28 Wash. 126, 68 Pac. 168, refusing to enjoin default judgment by
stockholder against corporation for work done, where examination of cor-
poration's books would have disclosed facts; Laun v. Kipp, 155 Wis. 369,
372, 373, 145 N. W. 191, 192, holding complaint stated case for relief from
judgment for extrinsic fraud; Boring v. Ott, 138 Wis. 286, 19 L.*R. A.
(N. S.) 1080, 119 N. W. 875, holding evidence did not make out case to
enjoin judgment on ground that it was obtained by perjury; Embry v.
Palmer, 107 U. S. 10, 27 L. Ed. 849, 2 Sup. Ct. 31, Phillips v. Negley,
117 U. 8. 675, 678, 29 L. Ed. 1015, 1016, 6 Sup. Ct. 905, 906, and Hood v.
New Haven etc, R. R. Co., 23 Conn. 622, all holding no relief will be
granted where the courts of law can furnish adequate relief; Batchelder
V. Bean, 76 Me. 375, where court said that equity would not enjoin judg-
ment on precise ground defendant sought to prevent recovery of judgment;
Barton v. Radclyffe, 149 Mass. 280, 21 N. E. 375, where defendant presented
no different inquiry from that involved in original suit; Stout v. Slocum,
52 N. J. Eq. 89, 28 Atl. 7, holding equity will never interfere unless de-
7 Cy. 332-338 NOTES ON U. S. REPORTS. 648
•
fendant can show merits; Grim v. Handley, 94 U. S. 658, 24 L. £d. 218,
holding that absence of one of the counsel is not ground for relief; Ames
V. Snider, 55 111. 501, holding that inattention of counsel was no ground
for interfering; Thomas v. Phillips, 4 Smedes & M. 424, where court said
that equity would not relieve unless defense was prevented without fault,
even though contract was against public policy; A5n'es v. Morehead, 77
Va. 588, holding that one who by his own and partly his attorney's neg-
ligence fails to avail himself of defense is not entitled to relief; Rogers
V. Parker, 1 Hughes, 155, Fed. Cas. 12,018, and Dickinson v. Sizer, 4 Rand.
121, where relief was not granted because of negligence of attorney; Kersey
v. Rash, 3 Del. Ch. 333, bill in equity because complainant was not able to at-
tend trial owing to illness, and because of newly discovered evidence ; Dob-
son v. Pearce, 12 N. Y. 165, 62 Am. Dec. 154, restraining proceedings upon
judgment fraudulently obtained ; Cairo & F. R. R. Co. v. Titus, 27 N. J. Eq.
106, where equity refused to interfere because of new testimony obtainable
by diligence; Norton v. Woods, 22 Wend. 523, where question was as to
whether defendant omitting to file bill for discovery could subsequently
file bill for relief; Stroup v. Sullivan, 2 Ga. 279, 46 Am. Dec. 390, where
garnishee was not relieved from judgment in suit which he supposed was
abandoned, but without justification; Trefz v. Knickerbocker, 8 Fed. 180,
holding equity would grant relief from judgment on ground of fraud;
Lazarus v. McGuirk, 42 La. Ann. 201, 8 South. 255, holding that rule
that judgment silences all defenses does not apply in cases of fraud ; State
V. Matley, 17 Neb. 567, to point that judgment obtained through fraud,
accident or mistake will be set aside; Fumald v. Glenn, 56 Fed. 374, and
Mayor etc. of N. Y. v. Br^y, 115 N. Y. 616, 22 N. E. 242, holding that
equity would not set aside judgment for fraud, if complainant had an
opportunity to obtain relief; Lyme v. Allen, 51 N. H. 245, to point that
fraud must be such as to deprive injured person of his rights and be un-
mixed with any fault; Hinrickson v. Van Winkle, 27 111. 337, holding
equity would not relieve against judgment obtained by fraud or accident
if there had been fault; Smith v. Worthington, 53 Fed. 981, 10 U. S.
App. 616, where suit was brought to set aside an administrator's sale for
fraud; Wingate v. Haywood, 40 N. H. 441, where court said that equity
had so great an abhorrence of fraud that it would set aside its own
decrees if founded thereupon; dissenting opinion in Parish v. Gear, 1
Pinn. 274, where injunction was sought because judgment was fraudulent
and included debt paid; Street v. Alden, 62 M^nn. 162, 54 Am. St. Rep.
633, 64 N. W. 158, where relief was sought from verdict fraudulently and
surreptitiously obtainel by collusion and conspiracy; Graver v. Faurot,
64 Fed. 244, where the only fraud consisted in false swearing and perjury ;
Young V. Sigler, 48 Fed. 183, where equity enjoined judgment against two
parties where one of defendants secretly compromised whole claim; Nor-
man V. Burns, 67 Ala. 250, holding equity will relieve where party was
without fault in failing to assert his legal rights or was prevented from
doing so by fraud, accident or mistake; Owens v. Ranstead, 22 111. 168,
holding judgment by means of false return and without notice might be
relieved ; Graver v. Faurot, 76 Fed. 259, 46 U. S. App. 268, suit to annul
549 MARINE INS. CO. v. HODGSON^ 7 Cr. 332-338
a fraudulent deoree, fraud being positive and actual; Ross v. Banta, 140
Ind. 133, 34 N. £. 868, holding that judgment may be collaterally attacked
in equity where it was against conscience to execute it; Davenport v.
Moore, 74 Fed. 947, holding Circuit Court could annul decree of State
court for fraud, where there was diverse citizenship ; Hibbard v. Eastman,
47 N. H. 509, 93 Am. Dec. 469, where holder agreed to discharge maker
on receiving note of third person, and receiving such note proceeded to
judgment; Purviance v. Edwards, 17 Fla. 143, holding equity would enjoin
judgment where one interposes no defense, relying upon assurance of
pFaintiff 's attorney that he will not take judgment; Tucker v. Talbott, 15
Ind. 118, a suit to enjoin judgment on note because of violation of pnor
oral agreement by plaintiff; Dilly v. Barnard, 8 Gill & J. 185, where court
refused to relieve against judgment because of bad faith of adversary,
the complainant being guilty of bad faith himself; Ballard v. Railroad
Co., 94 Tenn. 206, 28 S. W. 1088, holding equity would not relieve because
plaintiff was deprived of his right of appeal through refusal of judge to
carry out agreement to complete bill of exceptions after term; Webster v.
Skipwith, 26 Miss. 350, where there was misunderstanding between counsel,
and court relieved against judgment because of mistake of fact; Qunn
V. Fish, 8 Blackf . 409, and Lieby v. Ludlow, 4 Ohio, 492, in both cases to
point that because court of law decides question erroneously it is not
ground for relief in equity; Pollock v. Gilbert, 16 Ga. 403, 60 Am. Dec.
785, holding that no degree of wrong in determination of cause would
entitle one to relief; Walker v. Shreve, 87 111. 477, holding that mere fact
of judgment by Uef ault in trespass is for much greater sum that it ought
to have been is not ^ound for relief; Stilwell v. Carpenter, 59 N. Y. 423,
where court said it is not sufficient ground that the claim was unfounded
or that court acted erroneously; Palmer v. Bethard, 66 111. 531, where
judgment settling partnership account was not set aside because of mis-
takes subsequently discovered; State Bank v. Campbell, 12 Ind. 45, where
mistake was held not ground for relief after six years; Kearney v. Sascer,
37 Md. 276, holding that mistake as to facts arising from want of due
diligence would not entitle one to relief; Currier v. Esty, 110 Mass. 544,
where parties in writ of entry by mistake included parcel to which no
elaim was made; Kibbe v. Benson, 17 Wall. 628, 21 L. Ed. 742, where a
judgment by default on insufficient service, defendant having no actual
notice and averring good title in himself, was set aside; Hoey v. Jackson,
31 Fla. 555, 13 South. 463, holding that party regularly served and neg-
lecting to appear will not be relieved; Handley v. Jackson, 31 Or. 555,
65 Am. St. Bep. 841, 50 Pac. 916, injunction granted on ground that only
appearances for defendant not served was by an unauthorized attorney;
Crocker v. Allen, 34 S. C. 463, 27 Am. St. Rep. 838, 13 S. E. 653, where
equity refused to relieve against judgment rendered without service of
process in absence of any showing of equitable grounds ; Ridgway v. Bank
of Tennessee, 11 Humph. 525, holding equity would interfere where slieriff
made, false return, and judgment was rendered without notice or appear-
ance; Goalsby v. St. John,'^5 Gratt. 162, holding that one who had notice
of judgment in time to quash it was not entitled to relief; Rhode Island
7 Cr. 332-338 NOTES ON U. S. REPORTS. 550
Exchange Bank v. Hawkins, 6 R. I. 204, holding equity would relieve
garnishee where court of law was unable to do so; Walker v. Heller, 90
Iild. 202, and Vennum v. Davis, 35 HI. 574, to point that if one has grood
defense not available it is good ground for injunction; White y. Hemdon,
40 Ga. 498, holding that equitable defenses and defenses accruing since
the Judgment can be taken advantage of in equity; Powers y. Butler,. 4
N. J. Eq. 470, where judgment was enjoined because of defense unknown
to defendant at the trial; Hughes v. Nelson, 29 N. J. Eq. 551, holding
that judgment at law is no bar in equity on matters which are grounds
of equitable relief only; Stevens v. Hertzler, 114 Ali^ 574, 22 South. 124,
holding that where defendant has a purely equitable defeQse he is not
debarred by deferring to file his bill until judgment was rendered; Barnes
v. Dodge, 7 Gill, 118, where judgment was enjoined until equities of par-
ties were adjusted; in Montgomery v. Griffin, Walk. (Miss.) 460; Briesch
v. McCauley, 7 Gill, 197, and Chicago etc. R. R. Co. y. Field, 86 IlL 273,
where relief was granted so as to enable one to have benefit of a setoff;
Robinson v. Wheeler, 51 N. H. 386, holding equity would not suspend pro-
, ceedings to enable defendant to obtain adjustment of partnership concerns
that he may set off balance due him, unless bill shows balance will be due
him ; Gaines v. Hale, 26 Ark. 197, holding that judgment based on certificate
of entry which has been properly canceled will not be enforced; Carter
v. Anderson, 4 Ga. 519, holding that dismissal of an executor is a com-
plete bar unless impeached for fraud; Hickerson v. Raiguel, 2 Heisk. 336,
where accommodation indorser was relieved from judgment where bill
was disposed of in an unauthofiied manner without his knowledge; Free-
man v. Miller, 53 Tex. 378, where garnishee applied for relief against
judgment; Fowler v. Dillon, 1 Hughes, 238, 12 Bank. Reg. 314^ Fed. Cas.
5000, holding that equity could reduce the amount of judgments in Con-
federate money to equivalent in legal money; Walls y. Endel, 20 Fla. 98,
where relief was said to be proper against judgment in ejectment where
deed under which plaintiff claimed was mortgage; Warren v. Baker, 43
Me. 573, holding that discovery will not lie for purpose of obtaining new
trial in an action at law; Marshall v. Holmes, 141 U. S. 596, 35 L. Ed. 873,
12 Sup. Ct. 64, where the court said that equity would not assume to con-
trol judgment at law simply for purpose of giving new trial ; Sumner v.
Marcy, 3 Wood. & M. 114, Fed. Cas. 13,609, where judgment to recover
property of a debtor recovered in another State was enjoined; Governor
v. Barrow, 13 Ala. 542, where it was held that mistake or intoxication of
a witness was no ground for relief in equity; Bell v. Cunningham, 1 Sumn.
104, Fed. Cas. 1246, holding equity would enjoin pro tanto, so much of
judgment as was recovered by surprise; Montgomery v. Scott, 9 S. C. 34,
where one sought relief from bond and mortgage against bona fide holder.
Judgments based on false returns. Note, 19 Am. Dec. 1S8.
Relief in equity, other than appellate proceedings, against judgments,
decrees, and other judicial determinations. Note, 54 Am. St. Rep.
242.
551 MARINE INS. CO. v. HODGSON. 7 Cr. 332-338
Equitable relief against Jodgment on account of good defense.
Approved in Stewart Lumber Co. v. Downs, 142 Iowa, 423, 19 Ann. Oas.
1100. 29 L. R. A. (N. S.) 1190, 120 N. W. 1068, holding judgment for ex-
eessive amount against debtor would not be corrected at suit of another
creditor in absence of showing of fraud and collusion of debtor in. fraud
of plaintiff's rights; Ellis v. Akers, 32 Okl. 99, -121 Pac. 259, holding in-
junction did not lie to prevent enforcement of judgment when defendant
had remedy by appeal; Hockaday v. Jones, 8 Okl. 163, 56 Pac. 1056, refus-
ing to enjoin execution of default judgment, rendered without jurisdiction
of the person ; Heam v. Canning, 27 R. I. 220, 61 Atl. 604, refusing injunc-
tion against judgment by confession, alleged entered by mistake, when
entry was due to negligence of complainant and his attorney; Kersey v.
Rash, 3 Del. Ch. 339, holding that the loss of a case through a party's own
laches will defeat his claim; Duncan v. Lyon, 3 Johns. Ch. 357, 8 Am. Dec.
'516, where relief was denied to one because of delay; Doyle v. Reilly, 18
Iowa, 113, 85 AnL Dec. 585, on ther point that plaintiff must be unmixed
with fault or negligence himself; Thomas v. Thomas, 88 Wis. 93, 59 N. W.
506, where petition 'was denied because if petitioner was ignorant, it was
through negligence; Scl{roeppell v. Shaw, 3 N. Y. 452, holding that passive
neglect of creditor to enforce bond and mortgage gave no ground for relief
to surety; Kearney v. Smith, 3 Yerg. 132, 24 Am. Dec. 552, where com-
plainant alleged that his plea in abatement was unexpectedly stricken out
and plea to merits required instanter, which being filed, cause was put to
jury without his witnesses ; Huston v. Ditto, 20 Md« 324, holding that de-
fense available at law and lost by acquiescence in decision was not ground
for relief; George v. Tutt, 36 Mo. 142, where it was held that party proj)-
erly served who failed to appear would not be relieved ; Shricker v. Field,
9 Iowa, 372, where court said that negligence of one's attorney was no
groond for relief; Richmond Enquirer Co. v. Robinson, 24 Qratt. 552,
holding that negligence of an officer of corporation would exclude corpora-
tion ; Prater v. Robinson, 11 Heisk. 395, where court refused relief against
default which was grossly unjust, party" not being without fault and hav-
ing an attorney; Green v. Dodge, 6 Ohio, 83, 25 Am. Dec. 738, holding
judgment will not be relieved against because complainant incorrectly
stated his case or made false admission in another action; Miller v.
Palmer, 55 Miss. 335, where a purchaser at administration sale was held
not to be negligent because he in good faith relied upon validity of the
proceedings; Oregon etc. Co. v. Gates, 10 Or. 518, holding that generally
equity would not interfere to relieve defendant who has neglected to make
his defense ; Brown v. County of Buena Vista, 95 U. S. 159, 24 L, Ed. 423,
holding a court will not relieve where the party has been gitilty of laches -
or fault ; Life Ins. Co. v. Bangs, 103 U. S. 783, 26 L. Ed. 609, holding that
bill will not lie where complainant sets up matters which he had full oppor-
tunity to plead ; Warner v. Helm, 1 Gilm. 231, where court said that equity
will not relieve against accident, result of one's own negligence; Smith
V. Allen, 63 111. 476, where court refused to interfere on ground that de-
defendant was necessarily absent and prepared an affidavit which could not
be used because clerk did not attach his seal; Russ v. Wilson, 22 Me. 211,
7 Cr. '332-338 NOTES ON U. S. REPORTS. 552
where equity refused to enjoin judgment because defendant had failed to
comply with an agreement with plaintiff; Horn v. Queen, 4 Neb. 114, where
new trial was granted in equity because of illness of defendant ; Cammann
V. Traphagan, 1 N. J. Eq. 30, holding that matters of defense which came
to complainant's knowledge since trial, are proper grounds for an injunc-
tion and requiring discovery; Wells, Fargo & Co. v. Wall, 1 Or. 296, 299,
holding that ignorance of material fact was not ground as the party had
a remedy at law; Phillips v. Pullen, 45 N. J. Eq. 6, 16 Atl. 10, holding
equity would not enjoin judgment because it was unjust; Galveston etc.
Ry. Co. V. Dowe, 70 Tex. 4, 6 S. W. 792, holding injunction would not lie
to correct errors of an infeHor court, even when no appeal would lie;
Rosenberger v. Bo wen, 84 Va. iB63, 5 S. E. 699, holding tKat equity will
not interfere on ground that the judgment was erroneous ; Miller v. Duval,
26 Md. 52, where the principal grounds for equitable interposition were re-
fusal of court to admit testimony and the insolvency of defendant ; Stirving
v. National Life Insw Co., 59 Fed. 744, 19 U. S. App. 442^ where judg-
ment fairly and regularly obtained against school district on warrants was
not enjoined, although there was good defense at law; Barnett v. Bamett,
83 Va. 511, 2 S. E. 736, holding that in equity ooligor could not set up
that he had discharged bond, as that was defense he should have set up at
law; Cotton v. Hiller, 52 Miss. 11, where court said that complainant seek-
ing new trial must establish to high degree of certainty, validity and
'potency of his defense; Miller v. Doxey, Walk. (Miss.) 333, 338, where
court refused to grant relief where case was wholly cognizable at law
and new proofs were merely cumulative; Pierce v. Winter Iron Works,
32 Ala. 74, holding that setoff available either at law or in equity is not
ground for relief; Parker v. Morton, 5 Blackf. 2, point that if defense was
set up and tried at law, equity will not interfere ; Hendrickson v. Hinckley,
17 How. 445, 15 L. Ed. 124, to point that equity will not relieve unless
complainant has an equitable defense of which he could not avail himself
at law ; Pollock v. Gilbert, 16 Ga. 405, 60 Am, Dec. 737, holding that equity
would interfere if the execution of decree would be against conscience and
that such fact could not be taken advantage of ^t law; Bassett v. Henry,
34 Mo. App. 556, where the court interfered to stay enforcement of judg-
ment which in equity and good conscience had been paid; McCoy v. Presi-
dent etc. of Bank of U. S., 5 Ohio, 552, holding that indorsers charged
at law on ground of being secured, cannot be relieved where subsequently
deprived of security fund in favor of a previous lien; Semple v. Hagar,
27 Cal. 169, where relief was sought from judgment on ground of fraud;
Smith V. Nelson, 62 N. Y. 289, holding judgment would not be annulled for
fraud if there was good defense and facts were known ; Blackburn v. Bell,
91 111. 442, where it was held one could not maintain bill to obtain relief
from judgment where he was party to the fraud; Dringer v. Receiver of
Erie Ry., 42 N. J. Eq. 582, 8 Atl. 816, holding that to annul judgment be-
cause of fraud it must appear that if there had been no fraud there would
be no judgment; Miller v. Gaskins, 1 Smedes & M. Ch. 526, where judg-
ment was relieved against because of illegality of the aontract, the defense
not being set up, through ignorance; Knox County v. Harshman, 133 U. S.
\
>
553 LOCKE v. UNITED STATES. 7 Cr. 339-348
154, 38 L. Ed. 588, 10 Sup. Ct. 258, where court denied bill to restrain
execution on the ground of improper service; dissenting opinion in Gaines
V. Hale, 26 Ark. 209, holding that a judgment based on certificate of entry
which has been properly canceled, will be annulled; Mattingly v. Nye, 8
Wail. 373, 19 L. Ed. 381, to point that if there is any ground for equitable
relief against a judgment, it should be presented directly; Veazie v. Will-
iams, 8 How. 161, 12 L. Ed. 1030, to point that Supreme Court on its
equity side is capable of imposing its own terms on the party to whom it
grants relief.
Power of equity to relieve against judgments at law. Note, 19 Am.
Dec. 603.
Injunction against judgments for errors and irreg^arities. Note, 30
L. R. A. 703.
Injunction against judgments for diejfenses existing prior to rendition.
Note, 31 1m. B. a. 756.
Miarepreiientation of age and tonnage of vessel hy which insurers agreed
to M^ei: valuation is no ground for relief in equity where plaintiffs not
prevented ftom using it in an action on policy.
Approved in Milwaukee Mechanics' Ins. Co. v. Russell, 65 Ohio St. 258,
62 N. E. 339, holding void condition in policy giving insurer option to re-
baild i^ case of total loss; Phoenix Ins. Co. v. McLoon, 100 Mass. 476, on
the point that valuation of a subject insured in a policy is conclusive in the
absence of fraud.
^ Miscellaneous. Cited in Sawyer v. Gray, 205 Fed. 162, listing cases cited
by counsel. *
7 Cr. SS9-348, 3 Lb Ed. 364, LOCKE v. UNITED STATES.
Information for unloading goods vrithout permit is sufficient, although
tb&e and place of importation and vessel in which made not alleged.
Approved in United States v. Philadelphia etc. Ry. Co., 184 Fed. 645,
holding indictment against railroad under Elkins act sustained by proof
on one of several counts; Gonipers v. puck's Stove etc. Co., 33 App. D. C.
^^5, sustaining judgment of conviction on part of counts made ; Hartford
^' United States, 8 Cr. 110, 3 L. Ed. 504, construing section 50 of collection
ji^t of 1799^ requiring a permit for the landing of goods ; United States v.
Three Parcels of Embroidery, 3 Ware, 79, Fed. Cas. 16,512, where essen-
IIMS \xx an information in rem for a forfeiture under chapter 22, section
W) of the act were considered; Friedenstein v. United States, 125 U. S.
J-y^ 237, 31 L. Ed. 740, 742, 8 Sup! Ct. 842, 845, holding information under
ycnue laws for forfeiture of goods where no fine or imprisonment was
5ought,\vas a civil action; United States v. O'SuUivan, 27 Fed. Cas. 37^,
to point that in libels on information to enforce forfeitures, pleading ac-
cording to terms of the statute is sufficient ; Gelston v. Hoyt, 3 Wheat. 330,
1 L Ed. 402, to point as to the degree of certainty required in an informa-
tion; American Ins. Co. v. Johnson, Blatchf. & H. 15, Fed. Cas. 303, the
court saying that true spirit of all pleadings is to give notice to opposite
7 Cr. 339-348 NOTES ON U. S. REPORTS. 564
party of the charge; Clifton v. United States, 4 How. 250, 11 L. Ed. 961,
to point that one good count will uphold a general verdict, although some of
counts are had ; Claasen v. United States, 142 U. S. 147, 35 L. £d. 968, 12
Sup. Ct. 170, where president of bank was indicted for embezzling prop-
erty of the institution ; United States v. Whiskey, 28 Fed. Gas. 537, where
amendments to information by adding counts were allowed.
Probable cause in seisure cases defined.
Approved in United States v. 83 Sacks of Wool, 147 Fed. 749, on judg-
ment for claimant of property seized by customs officers because of f raudn-
lent importation, certificate of reasonable cause should be entered, though
verdict w^as correct, where it is shown officers acted in good faith; Agnew
V. Haymes, 141 Fed. 636, in action against internal risvenue officer for
wrongful seizure of property returned to claimant intact, proof that de-
fendant made seizure by direction of revenue commissioner upon in-
formation received from agents showing suspicion of violation of law
shows probable cause; The Thompson, 3 Wall. 162, 18 L. Ed. 57, ax>-
plying this principle to case where captured vessel was restored with-
out costs or damages; United States v. Ship Recorder, 2 Blatchf. 121,
Fed. Cas. 16,130, holding it made no difference whether collector
acted under a mistake as to facts or as to law; The Ship La Manchc, 2
Spra^e, 214, Fed. Cas. 8004, where vessel was 'led into predicanwent in
which she was found by mistakes of revenue officers of captor's own gov-
ernment; The Geoi^e, 1 Mason, 27, Fed. Cas. 5328, holding that justifica-
tion from probable cause may be forfeited by subsequent misconduct or
negligence; United States v. The Reindeer, 27 Fel. Cas. 768, holding that
court will certify that reasonable cause existed for seizure, when there
\ was ground for suspicion; United States v. Three Bales of Cloth, 28 Fed.
Cas. 108, fact that public appraiser reported that certain goods were in-
voiced nineteen per cei^ below their market value was of itself reasonable
ground of suspicion ; The Gala Plaid, Brown's Adm., 7 Fed. Cas. 5183, where
goods are restored, claimant cannot recover damages where the officer was
warranted in seizure ; Averill v. Smith, 17 Wall. 92, 21 L. Ed. 616, holding
trespass would not lie when seizure was maHe by the collector where it
was his duty to make it; Brown v. Griffin, Chev. L. 33, holding that true
bill found constituted presumption of probable cause; Lincoln v. Smith,
27 Vt. 357, holding that under a(jt to prevent traffic in liquor, finding o^
liquor was evidence of probable cause; Sarah B. Harris, 1 Hask. (Fox's
Dec.) 60, Fed. Cas. 12,344, holding that verbal assent from customs officer
to land goods was not compliance with act of 1799; United States v. One
Sorrel Horse, 22 Vt. 657, holding horse was within provisions of act re-
quiring one importing "merchandise" to give manifest ; The City of Mexico,
25 Fed. 925, court saying that persons who carry on trade up to brink of
illegality must avoid at their peril additional circumstances of suspicion;
United States v. Three Thousand Eight Hundred and Eighty Boxes, 8
Sawy. 133, 12 Fed. 405, holding that where opium was seized, burden of
proof is on claimant to show property was of domestic manufacture; Tho
Brig Busy, 2 Curt. 587, Fed. Cas. 2232, holding that having on board of
555 NOTES ON U. S. REPORTS. 7 Cr. 349-364
considerable nniiiber of cigars not entered and with no accoant of their
purchase and price was sufficient to put burden on claimant; Chaflce v.
United States, 18 Wall. 546, 21 L. Ed. 914, to point that burden of proof
is on claimant where probable cause, was shown for seizure; Lillienthal's
Tobacco V. United States, 97 U. S. 265, 24 L. Ed. 904, instruction that if
one violated the revenue laws burden was on him to prove it was not done
to defraud the government, correct.
Qaalified in United States v. Diamond Rings, 1 Sprague, 297, Fed. Cas.
16,572, where court considered what was a sufficient concealment of goods
under collection law of 1799.
CBxgo of vessel is snbject to condemnation on fraudulent entry ^to port
of United States.
Approved in State v. Hooker, 22 Okl. 728, 98 Pac. 971, upholding statute
providing for forfeiture of liquors kept in violation of liquor law.
Miscellaneous. Cited in Dimmick v. United States, 116 Fed. 832,
holding general verdict will not be reversed if any of counts of indictment
are good ; to point that statutes prescribing for the seizure of things with-
out service of process have been held constitutional in Qlennon v. Britton,
155 111. 245, 40 N. £. 598, holding a statute authorizing search warrants was
constitutional; erroneously in Smith v. Montoya, 3 N. M. 11, 1 Pac. 181.
7 Cr. 849, 3 Ifc Bd. 867, 80H00NEB GK>OD i CATHABINE v. UNITED
STATEa '
Oondenmation for violation of embargo where vessel originally American
condemned and purcliased by former master, an American, took on goods
other tlum provisions and stores necessary for voyage and cleared as Dane.
Cited to point as to the right to withhold freight where goods are dam-
aged in Bradstreet v. Heron, Abb. Adm. 214, Fed. Cas. 1792, holding that
consignees are entitled to a reasonable opportunity to ascertain whether
goods correspond in quantity and condition.
■
7 Or. 360-354, 3 L. Ed. 367, BOND v. JAT.
In Maryland statute of limitations does not run against accounts be-
tween merchant and marcliant, either of whom resided out of province.
Approved in State v. Lancashire Ins. Co., 66 Ark. 473, 476, 51 S. W. 636,
636, holding anti-trust act of 1899, page 50, does not apply to combina-
tions formed outside of State; West v. Hymer, 7 Ohio, 236, to point that
"beyond seas" and "out of the State" are analogous; Sneed v. Ewing,
5 J. J. Marsh. 483, 22 Am. Dec. 62, upon power and duty of State to refuse
to admit application of public law adopted by other States for regulating
international rights.
Distinguished in Didier v. Davison, 2 Sand. Ch. 69, where the accounts
between merchants were within statutory bar.
Averment that creditor had come within State is insnfflcient unless it
ilflo aver plaintiff had become resident of State within such tiime as to cause
Unitatlons to run.
7 Cr. 354-363 NOTES ON U. S. REPORTS. 556
Distinguished in Jones v. Coal Creek Min. etc. Co.; 133 Tenn. 168, 180
S. W. 182, holding if persons excepted by statute come at any time within
United States, they were no longer protected.
7 Cr. 354-356, 3 L. Ed. 369, FBESTOK ▼. TBEMBLE.
BlU In equity will not lie for relief where an equitable title is merged
in iorant, remedy being at law.
Cited in Porter v. Robb, 7 Ohio, 210, where owner of entry in Virginia
military lands made mistake in surveying and obtained patent accordingly.
7 Or. 356-^58, 3 L. Ed. 869, THE PENOBSCOT ▼. UNITED STATES.
Under nonintercoorse laws vessel comes into our waters at her perlL
Cited in United States v. One Hundred and Twenty-nine Packages, 27
Fed. Cas. 288, to point as to what are overt acts of "proceeding to."
7 Or. 358-363, 3 L. Ed. 370, OAZE v. BALTIMOBE INS. 00.
Underwriter on cargo of ship is not responsible for payment of fteigbt
where there was an abandonment.
Cited in Indianapolis Ins. Co. v. Mason, 11 Ind. 182, where flat boat
stranded and sank and it became necessary to reship cai^o, which was
damaged ; Shultz v. Ohio Ins. Co., 1 B. Mon. 345, holding that law of insur-
ance is scrupulous in scrutinizing cause of loss; Daniels v. Atlantic M. S.
Co., 24 N. T. 454, to point that existence of a lien on cargo for freight
does not vary the legal responsibility of underwriter of such cargo after
abandonment; Columbian Ins. Co. v. Catlett, 12 Wheat. 396, 6 L. Ed. 670,
liolding that freight was not a charge upon the salvage of cargo in the
liands of underwriters, whether assured is owner of ship or not.
When freight pro rata itineris is due where voyage has been abandoned.
Approved in The Eliza Lines, 199 U. S. 128, 50 L. Edi 149, 26 Sup. €t.
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; The Ann D. Rich-
ardson, Abb. Adm. 504, Fed. Cas. 410, holding that without delivery at
destination acceptance at an intermediate place was necessary to enable
ship owner to recover freight; Halwerson v. Cole, 1 Spear, 323, 40
Am. Dec. 604, where a vessel put into intermediate port owing to stress
of weather, where vessel was sold; Brown v. Harris, 2 Gray, 360, holding
that passage money may be recovered back on breaking up of voyage;
The Ship Nathaniel Hooper, 3 Sumn. 550, 551, 554, Fed. Cas. 10,032, where
vessel struck on reef, part of her cai^o jettisoned, and she abandoned;
Marcardier v. Chesapeake Ins. Co., 8 Cr. 50, 3 L. Ed. 484, where technical
total loss was sought on ground of deterioration of the cargo; Sampayo v.
Salter, 1 Mason, 44, Fed. Cas. 12,277, where vessel was captured and
condemned at an intermediate port and part of cargo was restored and
sold at same port ; Shultz v. Ohio Ins. Co., 1 B. Mon. 339, holding an insur-
ance company to be liable for extra freight incurred by transshipment;
^
557 LEE V. MUNROE. 7 Cr. 366-37(^
Weston V. Minnot, 3 Wood. & M. 442, 444, Fed. Cas. 17,453, holding that
freight contracted for in gross cannot be apportioned for part unless an
apportionment becomes feasible and just; Rogers v. West, 9 Ind. 407, to
point that freight pro rata itineris is never allowed unless there is new
contract express or implied; Rossiter v. Chester, 1 Doug. (Mich.) 176,
where vessel was by stress of weatfier compelled to put into an intermediate
port and goods were there accepted; Adams v. Haught, 14 Tex. 254, hold-
ing it was not abeeptanee where vessel was compelled to put into an
intermediate port and master refusing to repair, owner received goods;
Welch V. Hicks, 6 Cow. 510, 16 Am. Dec. 445, holding that acceptance
mnst be voluntary; Rosenberg v. Frank, 58 Cal. 405, as to meaning of the
words "pro rata" where these words in will were construed.
Disapproved in Columbian Ins. Co. v. Catlett, 12 Wheat. 402, 403, 404,
405, 406, 6 L. Ed. 672, 673, and said to be hasty decision against pro rata
freight.
Distinguished in Scow No. 190 and Four Hundred etc. Bales of Cotton,
88 Fed. 321, holding where there are several distinct carriers for different
stages of the transportation, pro rata recovery may be had where goods are
damaged in transit and sold.
Bight to proportional freight in case of accident at sea preventing con-
tinuance of voyage. Note, 12 £. B. 0. 367. *
7 Cr. 366-370, 3 Ii. Ed. 373, I£E Y. MUNBOE.
Where prospective lender asks prior mortgagee whether he has any Interest,
and latter denlea having any interest, his claim will he postponed.
Cited in Lascelle v. Barnett, 1 Blackf . 150, applying rule to assignee of
mortgagee; Veazie v. Williams, 8 How. 157, 12 L. Ed. 1028, where false
steps were taken to enhance the price of property sold at auction.
Mortgagee's forfeiture of priority by fraud, negligence or notice of
prior equity. Note, 18 E. B. 0. 533.
United States not liable for damage on account of misstatements of
official, not within sphere of official duties.
Approved in Pine River Logging Co. v. United States, 186 U. S. 291,
46 L. Ed. 1170, 22 Sup. Ct. 925, holding fact that Indian agent consented
to certain construction of timber contract does not excuse material de-
parture from terms of contract; Graham v. United States, 188 Fed. 656,
110 C. C. A. 465, upholding authority given to annul contract for public
building; United States v. Kauhoe, 147 Fed. 187, where defendants, who
were liable on postmaster's bond for embezzlement, requested inspector
to extend time, and he consented in consideration of their executing note,
note was unauthorized and void; Potter v. United States, 122 Fed. 54,
holding special government agent cannot by his acts estop government;
Chicago V. McKechney, 205 111. 470, 68 N. E. 988, holding letters written
to city contractor by agents appointed by him to examine condition of
work done, and to report thereon, are inadmissible in favor of contractor
7 Cr. 366-370 NOTES ON U. S. REPQRTS. 558
in action to recover value of work done; 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 defense against surety's liability; Perry
Water, Light etc. Co. v. City of Perry, 29 Okl. C05, 39 L. R. A. (N. S.) 72.
120 Pac. 587, holding void contract of city council for purchase of per-
sonalty in excess of sum fixed by law^ Whitesides v. United States, 93
U. S. 257, 23 L. Ed. 885, holding assistant special agent had no authority
to bind the government by contract to pay expenses of transporting cap-
tured or abandoned cotton; Hawkins v. United States, 96 U. S. 692, 24
L. Ed. 608, holding assistant superintendent of public building could not
vary contract; United States v. Martin, 2 Paine, 71, Fed. Cas. 15,732,
holding United States not liable for declarations of agent unless it clearly
appears that he was acting within his authority ; Parcel v. Barnes, 25 Ark.
267, holding county clerk could not issue county warrants /otherwise than
upon order of County Court; Dartmouth Sav. Bk. v. School Dists., 6 Dak.
344, 43 N. W. 825, holding that school district was not estopped to deny
organization of district ; Tules v. Canova, 11 Fla. 47, holding that impress-
ing officer cannot change terms of impressment statute; State v. South-
western R. R. Co,, 66 Ga. 406, holding attorney general could not settle
tax executions at 'less than their full amount; Indiana Central Canal Go.
v. State, 53 Ind. 5d3, holding State was not bound when Governor and
auditor pointed out land sold by State; Mayor etc. of Baltimore v. Esch-
bach, 18 Md. 283, holding that city could not be held for unauthorized
acts of its agent ; State v. Bank of State, 45 Mo. 538, holding that a Gov-
ernor could not ratify sale of State lands; Sooy v. State, 38 N. J. L. 338,
holding that State was not bound by gratuitous statements of its officers;
Supervisors of Richmond County v. Ellis, 59 N. T. 625, holding that super-
visors could not audit claim not legally chargeable to county; State ex rel.
Proudfit V. Hastings, 10 Wis. 554, holding Secretary of State could not
order blank forms from State printer; Mayor v. Musgrave, 48 Md. 289,
SO Am. Bep. 465, holding city not to be liable for acts outside of authority
of commissioners appointed to condemn property for street; Mayor etc. of
Baltimore v. Reynolds, 20 Md. 11, 83 Am. Dec. 541, holding that city con-
tractors must take notice of powers of city commissioner; Murdock v.
Chaffe, 67 Miss. 752, 7 South. 521, holding that one claiming under statu-
tory power of sale must see that precedent facts warrant power; Sooy v.
State, 41 N. J. L. 399, holding that notice to individual members of legis-
lature was not notice to State; McLean v. State, 8 Heisk. 234, to point
that the State is not liable for misconduct of its officers in discharge of
their duties; Wright v. Nagle, 48 Ga. 392, to point that towns have au-
thority to bind public only where authority is expressly given.
Admissibility of an agent's admissions against a principal. Note,
« 53 Am. Dec. 775, 777.
Miscellaneous. Cited in Commonwealth S. S. Co. v. American Shipbuild-
ing Co., 197 Fed. 788, to point that fraud or mistake must be very manifest
to justify setting aside contract; State v. Pullman, 23 Wash. 590, 63 Pac.
/ \
559 HERBERT v. WREN. 7J».370-3S2
267, holding city not estopped from pleading ultra vires by accepting bene-
fit of contract for use of w%ter which was void ab initio.
7 Cr. 370-382, 8 I^ Ed. 374, HEBSEBT ▼. WBEN;
Conrts of equity and of law liave concurrent Jurisdiction In assigning
dower.
Approved in Beeman v. Ketzman, 124 Iowa, 94, 99 N. W. 174, it is
immaterial that widow styles action as one i^ partition if petition' states
facts on which dower may be assigned; Godwin v. King, 31 Fla. 540, 13
South. Ill, where widow who was administratrix applied for dower and
part of personal property; Yeo v. Mercereau, 18 N. J. L. 404, holding that
equity had jurisdiction in matters of dower although right was a legal
right ; Jones v. Van Doren, 130 U. S. 692, 82 L. Ed. 1080, 9 Sup. Ct. 687,
where a bill in equity to obtain right of dower was brought; Bean v.
Smith, 2 Mason, 271, Fed. Cas. 1174, to point that there is concurrent
remedy at law and in equity where remedy. at law is not complete; Mayor
V. Foulkrod, 4 Wash. 353, Fed. Cas. 9341, holding that legatee could resort
to equity; Pierpont v. Fowle, 2 Wood. & M. 32, Fed. Cas. 11,152, holding
equity had jurisdiction of an accounting and disclosure of sale under copy-
right ; Baker v. Biddle, 1 Bald. 408, 416, 421, Fed. Cas. 764, holding bill for
accounting does not lie where accounting has been rendered and received;
Foster v. Swasey, 2 Wood. & M. 221, Fed. Cas. 4984, to point that equity
has jurisdiction to proceed and complete inquiries or send the case to
court of law if relief is fully as adequate; Bishop v. Woodward, 103 Ga.
284, 29 S. E. 969, holding equitable jurisdiction existed notwithstanding
code provision; Baer v. Ballingall, 37 Or. 422, 61 Pac. 854, arguendo.
Assignment of dower. Note, 79 Am. Dec. 604.
When widow pat to election.
Approved in In re Bloss' Estate, 114 Mich. 207, 72 N". W. 149, holding
where husband's will gives wife both realty and personalty, she cannot
elect to take realty under the will as personalty under statute; Stone v.
Cook, 179 Mo. 541, 64 L. R. A. 287, 78 S. W. 802, legatee accepting legacy
under protest that will invalid cannot contest will by allegation of readi-
ness to pay. amount into court or to have it deducted from share if will
set aside; WVight v. West, 2 Lea, 81, 31 Am. Rep. 588, holding that widow
who is insane and did not dissent from will may in equity claim as if
she had dissented; Washburn v. Van Steenwyk, 32 Minn. 351, 20 N. W.
328, where Probate Court made election in behalf of insane widow to take
against will; Carter's Appeal, 59 Conn. 587, 22 Atl. 322, holding that
presenting of claim for life interest and receipt of dividends was waiver
of dower; Schorr v. Etling, 124 Mo. 48, 27 S. W. 396, holding there was
no inconsistency between taking devise under will and homestead under
law ; Schwatken v. Dandt, 53 Mo. App. 3, holding an acceptance under will
defeated dower in personalty; Fisher v. Boyce, 81 Md. 53, to point that
equity will not permit one to hold under and against will; Van Duyne v.
Van Duyne, 14 N. J. Eq. 52, holding that party could not take beneficial
\
/
[)-!l82
7 Cr. 370-382 NOTES ON U. S. REPORTS. 560
interest under will and at same time set up any claim of his own ; Bannister
V. Bannister, 37 S. C. 531, 16 S. E. 613, holdftig that if provision is given
"in lieu of dower," the widow is put to an election; Pemberton v. Pem-
berton, 29 Mo. 413, holang that bequest of personalty would not be bar;.
Norris v. Clark, 10 N. J.- Eq. 56, where bequest of money and i)ersonalty
was held to be bar of dower both in personalty and realty; Brown v.
Pitney, 39 111. 473, holding testator may make bequest of personalty in
lieu of dower; Dixon v. Mo^ue, 14 Gratt. 550, holding that if a widow's
taking real estate will interfere with will, she must elect; Melceod v.
McDonnel, 6 Ala. 242, where widow was put to her election; Bailey v.
Duncan, 4 T. B. Mon. 266, holding a widow is entitled to dower in lands
which another is seized of to use of her husband; Crawford v. Bloss, 72
N. W. 149, refusing»to let widow take under will as to realty and under
statute as to personalty.
When a widow is by a will required to elect between its benefits and
her right to dower or in the community property. Note, 92 Am.
St. Rep. 696.
Necessity of election between devise and dower. Note, 10 £. B. O.
347.
On a lease for yean by husband Joined in by wife, wife is entitled to lier
dower in the rent.
Approved in Swayne v. Lone Acre Oil Co., 98 Tex. 608, 69 L. B. A. 986,
86 S. W. 743, where grantees of remainderman occupying in severalty by
virtue of fee title of grantors to two-thirds, but to entire exclusion of life
tenant, discovered oil, life tenant only entitled to interest on one-third of
proceeds of sale of oil ; Ludington v. Patton, 111 Wis. 261, 68 N. W. 688,
holding on facts that trustees under husband's will must account to widow
as constructive trustees for all property of which she would have come into
possession under will; Sykes v. Sykes, 49 Miss. 218, holding that widow
was entitled to dower in realty occupied by tenant under lease; Boyd v.
Hunter, 44 Ala. 719, court saying that if rent is reserved, widow is entitled
to proportionate part of rent; Maccubbin v. Cromwell, 2 Har. & G. 456,
holding that widow was entitled to dower in money from sale of husband's
lauds.
If land snbject to dower is sold, a gross sum cannot be allotted in lieu
of dower if any of parties do not consent.
Cited in Wilson v. Branch, 77 Va. 70, holding that court cannot, without
consent of widow, decree sale of realty and give her money in lieu of
dower ; Holden v. Boggess, 20 W. Va. 72, 88, holding wife had dower inter-
est in the surplus where land was sold to satisfy a lien ; Wilson v. Davison,
2 Rob. (Va.) 402, where bill was filed by widow against persons in posses-
sion and others to whom the land had been aliened, claiming to be en-
dowed; Blair v. Thompson, 11 Gratt. 452, holding that court erred in
decreeing a gross sum against purchaser in lieu of dower; Ex parte Win-
sted, 92 N. C. 705, holding that on sale in partition of lands subject to
dower, her life estate may be valued in money; Harrison ^. Payne, 32
561 CARGO OF BRIG AURORA v. UNITED STATES. 7 Cr. 382-389
\
Grstt. 389, 391, and Williams' Case, 3 Bland Ch. 262, on the point that
one-third of proceeds must be invested and interest paid to widow ; Beavers
V. Smith, 11 Ala. 34, holding that where compensation is made in money,
decree should not be for gross sum, but for payment annually ;' Burgess v.
Burgess, 2 Ind. 545, where court said that if lieind subject to dower was
sold, dower right attached to proceeds ; Martin v. Wharton, 38 Ala. 642, to
point that no absolute money valuation could be fixed upon dower rights.
Commutation of value of life estate and payment of same to life
tenant in gross instead of by way of interest. Note^ Ann. Gas.
1912D, 42.
7 0§ 382-389, 3 L. Bd. 378, OABGO OF BBIG AX7BOBA Y. UNITED STATES.
LegiSlatiire may prcTvlde that operation of an act may depend ap<« any
rabsequent combination of events.
Approved in Monongahela Bridge Co. v. United States, 216 XT. S. 192,
54 L Ed. 441, 30 Sup. Ct. 368, and Union Bridge Co. v. United States,
204 U. S. 378, 51 L. Ed. 530, 27 Sup. Ct. 367, both holding Congress could
impo^ on Secretary of War duty of ascertainii^ what cases came under
statute providing for removal of obstructions to navigation of rivers;
St Louis Cons. Coal Co. v. lUinois, 185 U. S. 210, 45 L. Ed. 877, 22 Sup. Ct.
619, upholding Illinois mining inspection law of May 28, 1879; People v.
Perkins, 56 Colo. 36, Ann. Gas. 1914D, 1154, 137 Pac. 61, holding amend-
ment to city charter not void because effective only on contingency; South-
ern Ry. Co. V. Melton, 133 Ga. 287, 316, 65 S. E. 669, holding rules of
railroad commission not void as attempt to legislate; Idaho Power etc. Co.
V. Blomquist, 26 Idaho, 253, 141 Pac. 1092, holding legislative power not
del^ated to Public Utilities Commission; State v. Rogers, 97 Minn. 325,
106 N. W. 346, upholding Laws 1903, chapter 333, page 577, r^ulating
collection and disposition of fees of district court clerks in counties of over
two hundred thousand inhabitants; Hudspeth v. Swayze, 85 N. J. L. 608,
89 Atl. 787, upholding act effective on contingency of approval on refer-
endum; Hopkins v. Richmond, 117 Va. 707, 86 S. E. 143, holding ordinance
providing for se^egation of residential streets for whites and negroes not
effective on condition; State v. Bryan, 50 Fla. 371, 39 South. 954, argu-
endo; Ex parte Wall, 48 Cal. 314, 17 Am. Bep. 428, where court con-
sidered nature of contingency upon which taking effect must depend;
Pratt V. Allen, 13 Conn. 128, holding an act providing for holding an
election was not void because it .depended on contingency; Chicago v.
Stratton, 162 111. 502, 53 Am. St. Rep. 329, 44 N. E. 855, folding valid an
ordinance making it unlawful to locaTe stable except by consent of the
lot owner; People' v. Fire Assn. of Philadelphia, 92 N. Y. 321, 44 Am. Eep.
385, holding retaliatory insurance laws to be valid ; Galveston etc. R. R. Co.
V. Gross, 47 Tex. 436, where an act provided for substituting land grants
for State bonds when State had power; Ex parte Bassitt, 90 Va. 682,
19 S. E. 454, holding an act authorizing County Courts to appoint addi-
tional justices where needed to be valid ; Pueblo Co. v. Smith, 22 Colo. 542^
45 Pac. 361, where an act authorizing an additional justice in precincts
1—86
/
7 Cr. 389-395 NOTES ON U. S. REPORTS. 662
containing over a certain number of inhabitants was held constitutional;
Fell V. State, 42 Md. 85, holding that an act whose going into effect de-
pended on popular vote was valid; Bull v. Read, 13 Gratt.- 90, holding an
act making free school system dependent upon popular vote to be valid;
St. Louis V. Alexander, 23 Mo. 514, where an act for subscription to a
railroad providing that matter be submitted to the voters was held valid;
Fell V. State, 42 Md. Ill, 20 Am. Rep. 87; Rice v. Foster, 4 Harr. (Del.)
494; Paul v. Gloucester Co., 50 N. J. L. 594, 614, 15 Atl. 276, 286; and
Parker v. Commonwealth, 6 Pa. St. 526, 47 Am. Dec. 496, all holding
statutes allowing voters to control sale of liquor to be valid; dissenting
opinion in State ex rel. v. Pond, 93 Mo. 653, 6 S. W. 486, and Gordon v.
State, 46 Ohio St. 634, 23 N. E. 67, both holding local option laws t^ be
valid; dissenting opinion in Rohrbacker v. City of Jackson, 51 Miss. .775,
where an act reg^ilating sale of liquor at retail was held Valid; State v.
Liedtke, 9 Neb. 498, 4 N. W. 80, where an act appropriating money was
not to be effected until the general government reimbursed the State;
Gray v. Delaware, 2 Harr. 96, where legislature dispensed with trial by
jury conditionally.
On revival of an act, legislature presuned to give it same force and effect
wlilch it bad at expiration.
Cited in Field v. Clarke, 143 U. S. 682, 691, 698, 86 L. Ed. 806. SOS,
312, 12 Sup. Ct. 501, 504, 506, holding that an act conferring on President
power to suspend by proclamation free introduction of certain articles
was valid; Ex parte Wells, 21 Fla. 323, to point that Congress may make
the revival of a law conditional on a fact contingent; Fisher v. Higgins,
5 T. B. Mon. 149, where an act repealing statute revived statute in opera-
tion before repealed act was passed.
Itibel need not state any fact which constitutes dafense of claimant.
Approved in Six Hundred and Fifty-one Chests of Tea v. United States,
1 Paine, 514, Fed. Cas. 12,916, holding that information against teas for
want of proper marks need not allege an illegal importation or nonpay-
ment of duties; United States v. Schooner Little Charles, 1 Brock. 352,
Fed. Cas. 15,612, holding that a libel against vessel for violating embargo
laws need not state she is within the exception; United States v. Tilden,
28 Fed. Cas. 179, holding indictment for carrying letter out of mail need
not negative citizenship of the owner; Our House, No. 2 v. State,
4 G. Greene, 175, holding an indictment stating charge substantially in
language of code was sufficient; The Meteor, 17 Fed. Cas. 182, holding it
to be discretionary to permit amendments to libel of forfeiture.
Miscellaneous. Cited in Talcott v. Tp. of Pine Grove, 1 Flipp. 156, Fed.
Caa. 13,735, on established practice as evidence of law.
7 cr. 389^95, 3 L. Ed. 380, SCHOONER HOPiPET v. UNITED STATES.
Information in admiralty for violation of nonintercourse law must con-
tain substantial statement of offense.
Approved in dissenting opinion in Slack v. State, 61 Tex. Cr. 406, 410, Ann.
Cm. 1913B, 112, 136 S. W. 1091, 1093, majority holding exqeptions in statute
5^3 SCHOONER HOPPET v. UNITED STATES. 7 Cr. 389-395
need not he negatived in indictment charging violation of liquor law ; United
States V. Schooner Little Charles, 1 Brock. 350, Fed. Cas. 15,612, holding that
libel for violating embargo laws need not state particular character of ves-
sel; United States v. Seventy-eight Casks of Books, 2 Bond, 273, Fed. Cas.
16,258, holding information for fraud in undervaluing merchandise must
aver valuation was under cost at the place of exportation ; United States v.
Fifteen Barrels of Distilled- Spirits, 51 Fed. 422, where sufficiency of
information for forfeiture of imported spirits was considered; dissenting
opinion in Friedenstein v. United States, 125 U. S. 236, 31 L. Ed. 741,
^ Bap. Ct. 844, holding information need not allege that the acts were done
^th actual intent to defraud; Schooner Anne v. United States, 7 Cr. 572,
^ li. Ed. 442, and United States v. Weed, 5 Wall. 68, 18 L. Ed. 533, both
liolding a libel must aver specifically all the facts ; The Confiscation Cases,
^0 Wall. 110, 22 L. Ed. 324, where an information was held sufficient
^though its allegations were in the alternative; The Merino, 9 Wheat.
^^1) 6 L. Ed. 121, holding it was sufficient if an information set out offense
80 clearly as to bring it within statute; United States v. Three Hundred
^d Ninety-six Barrels, 28 Fed. Cas. 122, holding that allegations must be
*^ciently specific to enable claimant to traverse them ; Wells v. The Anne
*it>line^ 29 Fed. Cas. 641, holding that an omission of libel to strfte car-
p^^ facts is faulty pleading; United States v. One Distillery, 4 Biss. 27,
<fes#» 5^^- 15,929, holding an information for forfeiture of a distillery must
*^^ej?^ with reasonable certainty the things on which a judgment is
the ^> United States v. Mann, 95 U. S. 586, 24 L. Ed. 638, to point that
^ ^^rge in libel ought to conform to the true sense and meaning of the
"vX^^ of the statute; United States v. Schoioner Paryutha Davis, 1 Cliff.
^^^, ^ed. Cas. 16,003, holding libel against vessel in an ill^al employment
^eed not specify the particular trade ; United States v. Huckabee, 16 Wall.
431, 21 Lw Ed. 463, court saying information should propound in distinct
articles the cause of forfeiture; Ex parte Hull, 12 Fed. Cas. 854, to point
that the plain terms of a statute must be executed without regard to its
reason or justice; Anonymous, 1 Gall. 26, Fed. Oaa. 444, to point as to
allowance of amendments of informations in rem.
Defendant canncyt be charged with one crime and convicted of another.
Cited in Click v. Texas, 3 Tex. 287, holding it is not sufficient to chaige
a defendant with kidnaping generally.
Decree must be secundum allegata as well as secundum probata.
Approved in Second Pool Coal Co. v. People's Coal Co., 188 Fed. 895,
110 C. C. A. 526, holding proof not corresponding with pleadings of no
avail; Morris v. Bartlett, 108 Fed. 677, holding admiralty decrees are not
conclusive as to immaterial questions; Bender v. Bender, 14 Or. 355, 12
Pac. 714, holdii^ this rule applicable under the system of pleading in
Oregon; The Steamship Rhode Island, 01c. 511, Fed. Cas. 11,745, to point
that in admiralty proofs must correspond to the pleadings, and decree
with pleadings and proofs.
7 Cr. 396-415 NOTES ON U. S. REPORTS. 564
7 Cr. 396-399, 3 L. Ed. 383, MUTUAL AS8UBAN0E SOOIETSr ▼. SOBN.
Liability of members of mutual fire insurance companies. NotOj 32
L. B. A. 486.
7 Cr. 399-402, 3 I.. Ed. 384, WEBSTER ▼. HOBAN.
Upon refusal by vendee at auction to comply with Us bid, no action lies
against Um until after resale.
Cited in Anderson v. Truitt, 53 Mo. App. 593, and Townsend v. Simon,
38 N. J. L. 242, holding that difference in price between first and second
sales may be taken as criterion but is not conclusive.
Distinguished in Friedly v. Scheetz, 9 Serg. & R. 163, 11 Am. Dec. <96,
where declaration was filed on a bond for the purchase price.
Criticised in School Commrs. v. Aiken, 5 Port. 179, where school lands
were sold and the vendee did not comply with terms of sale.
Law of auction sales. Note, 131 Am. St. Bep. 497.
Conditions of sale at auction. Note, Ann. Oaa. 1912A, 1184.
Measure of damages against vendee for refusing to perform Ms
.contract for purchase of land. Note, 67 Am. Dec. 278.
Vendor's right to hold purchaser, refusing to perform, liable for de-
ficiency on resale. Note, 8 L. B. A. (N. S.) 139.
7 Cr. 402-408, 3 L. Ed. 386, MABYI.ANZ> IlfS. GO. v. WOOD.
Entry into blockaded port for inquiry as to blockade.
Cited in dissenting opinion in Marshall v. Baltimore & Ohio R. R. Co.,
16 How. 348, 14 L. Ed. 967, in illustration of point as to conditions
under which corporations might be parties to suits in Federal courts.
7 Cr. 408-415, 3 L. Ed. 386, FERGUSON y. HABWOOD.
If foreign record is certified as in manner prescribed by statute, evidence
that attestation is not in due form is not admissible.
Approved in Seymour v. Du Bois, 145 Fed. 1007, upholding sufiiciency
of authentication of record of judgment within provisions of Rev.
Stats., §905; Priest v: Capitain, 236 Mo. 468, 139 S. W. 211, holding
officer of another State could not amend return of service after his term;
Trowbridge v. Spinning, 23 Wash. 60, 62 Pac. 128, holding court takes
judicial notice of laws of State from which a record comes; Wickersham
V. Johnston, 104 Cal. 414, 43 Am. St. Bep. 122, 38 Pac. 90, where question
was as to how proof was made of probate of foreign will; Giles v. Shaw,
Breese, 126, holding the certificate of judge omitting to state that attesta-
tion is m due form is insufficient; Morris v. Patchin, 24 N. Y. 396, 82
Am. Dec. 318, holding that attestation of judgment signed only by deputy
clerk is insufiicient; Duncommun v. Hysinger, 14 111. 251, to point that
judge need not certify to the official character of clerk; Haynes v. Cowen,
15 Kan. 643, where record attested by clerk with the seal attached and
certification by presiding judge that attestation is in due form was held
565 FERGUSON v. HARWOOD. 7 Cr. 408-415
admiBsible; Hutchins v. Currish, 52 N. H. 206, 18 AoL Bep. 20, to point
that the certificate of presiding judge is indispensable and conclusive;
Gfltling y. Robbins, 8 Ind. 187, boiding certificate b£ judge to be at least
prima facie if not conclusive evidence of form of attestation being correct ;
Folsom V. Bloody 53 N. H. 435, holding record of judgment must be accom-
panied by certificate that clerk's attestation was in due form; Hatcher v.
Rocheleau, 18 N. Y. 94, holding that certificate by presiding judge proved
itself and was sufficient prima facie evidence of official character; Grover
V. Grover, 30 Mo. 403, where clerk certified transcript to be full and judge
certified that certificate and attestation were in due form; Ordway v.
Conroe, 4 Wis. 48, 49, holding that a record does not require proof that one
is officer in whose custody same must be kept ; Bellamy v. Hawkins^ 17 Fla.
757, holding that certificate by custodian stating copy to be an extract
is not admissible^ McRae v. Stokes, 3 Ala. 403, 37 Am. Bee. 700, holding
certificate is sufficient if it complies with form prescribed in place where
made; Bonesteel v. Sullivan, 104 Pa. St. 13, where an exemplification of
papers as same remain on file was held admissible; Edmiston v. Schwartz,
13 Sei^. & R. 136, holding certificate "that the ^aper Was truly copied
from the records" imports that it is an entire record; Warner v. Brinton,
29 Fed. Cas. 235, to point that one may refer to the minutes to show the
foundation of decree of a register's court; Kungle v. Fasnacht, 29 Kan.
562, to point that courts when necessary resort to contents of instrument
to which it is attached for purpose of upholding certificate; Carr v. Gale,
3 Wood. & M. 60, Fed. Cas. 2435, holding that whole record in proceedings
in bankruptcy was competent, including schedule annexed to petition;
Tayler v. Carpenter, 2 Wood. & M. 4, Fed. Cas. 13,785, 'where a document
attested by clerk with seal and certificate of presiding judge and called an
"exemplified copy" was held admissible.
Distinguished in Richardson v. Hobart, 1 Stew. 504, 18 Am. Bee. 72,
where decree was held to be evidence although whole record was not
produced.
Admissibility of copies of records of other States. Note, 5 L. B. A.
(N. 8.) 954, 972.
Wilting which is mere transcript to minutes of a court is not admissible.
Approved in People v. Le Doux, 155 Cal. 549, 102 Pac. 523, holding
certified copy of unacknowledged marriage certificate not competent evi-
dence of marriage in fiCct to prove bigamy; Pepin v. Lachemeyel*, 45
N". Y. 32, where transcript from docket of court was held inadmissible
under act of Congress; Donald v. McKinnon, 17 Fla. 748, where it was
held that enough should appear to show jurisdiction; In re Coleman, 15
Blatchf. 426, Fed. Cas. 2980, holding that where docket entries stand in
place of any other record, they receive same consideration as record;
White V. Strother, 11 Ala. 723, to point that presumption is that judg-
ments and probates of wills are everywhere matters of record.
Variance is immaterial where it does not change the nature of the con-.
tract
Approved in Lowenstein v. Holmes, 40 Okl. 36, 135 Pac. 729, following
rule; Cannell v. Milburn, 3 Cr. C. C. 424, Fed. Cas. 2384, and Harrison
7 Cr. 415-420 NOTES ON U. S. REPORTS. 666
V. Weaver, 2 Port. 545, where variance^ in desieription of contract did not
change its nature or legal effect; Drake' v. Fisher, 2 McLean, 73 Fed. Cas.
4061, holding note dated at Cincinnati and described as dated Cincinnati
in State of Ohio, is admissible; Pearsall v. Phelps, 3 Ala. 628, where
variance was held material in an action on judgment of sister State;
James v. Scott, 7 Port. 32, where, in description on bond, words "value
received*' were inserted; Neale -v. Fowler, 31 Md. 157, where the declara-
tion on bond alleged an indebtedness in a certain sum and the contract
offered in evidence was materially variant; Barkman v. Duncan, 10 Ark.
466, where plaintiff sued as administrator of goods unadministered and
obligation was made to plaintiff as administrator de bonis non; Hough v.
Rawson, 17 111. 592, where the doriaration read ''wheat of the weight of
fifty-six pounds to the bushel" and contract read ''per bushel of fifty-
six pounds"; Silver v. Kendrick, 2 N. H. 161, 162, holding that declara-
tions for false affirmations, on an express contract need not contain precise
words used; Moore v. Lake Co., 58 N. H. 255, holding expressions "would
draw lumber to the pond of said mill" and "would deliver lumber to said
mill" were equivalent; State Bank v. Peel, 11 Ark. 753, where Christian
name was described as "John" and in note offered it was "Jno"; Badger v.
Burleigh, 13 N. H. 512, 513, where sufficiency of a complaint for breach
of warranty of horse was considered ; McLendon v. Godfrey, 3 Ala. 184,
where contract was alleged to be for services for particular year and
contract produced was for one year; Connolly v. Cottle, Breese, 365, where
note declared on was payableUo the plaintiff and note produced was pay-
able to creditors of third person jointly; Stone v. Lawrence, 4 Cr. C. C.
11, Fed. Cas. 13,484, holding note on its face payable '"at St. Louis in
the territory of Mo." was not admissible upon count not so describing
note; People v. Braman, 30 Mich. 466, to point thatf writing must be
continued to be understood in pleading in same sense as out of it; Kellogg
V. Denslow, 14 Conn. 429, holding that where declaration was for sale of
condenser and evidence was of sale of various articles, variance was fatal.
7 Or. 415-420, 3 L. Ed. 389, BIAYS V. CHESAPEAKE INS. 00.
When part of cargo is lost, and residue arrives in safety at port of
destini^tion, cargo consisting all of same kind of articles, loss is partial.
Approved in Washburn etc. Mfg. Co. v. Reliance Ins. Co., 179 U. S.
10, 45 L. Ed. 56, 21 Sup. Ct. 3, 4, holding insurer not liable for construc-
tive total loss of cargo warranted free from average unless general and
free from particular average but liable for absolute total loss of part;
Insurance Co. v. Fogarty, 19 Wall. 643, 22 L. Ed. 218, to point that there
cannot be total loss of part of a cargo; Hernandez v. Sun Mut. Ins. Co.,
6 Blatchf. 324, Fed. Cas. 6415, to point as to the effect of words *'free
from average unless general"; Woodside v. Canton Ins. Co., 84 Fed. 284,
285, where policy on "personal effects" and warranted "free from all
average" was construed; Wain v. Thompson, 9 Serg. & R. 121, 122, 11
Am. Dec. 677, 679, and Louisville M. & F. I. Co. v. Bland, 9 Dana (Ky.),
156, 157, both holding that under a policy "warranted free from average"
567 BIAYS V. CHESAPEAKE INS. CO. 7 Cr. 415-420
«
it was held there most he i^n actual total loss to enahle the plaintid to
recover; Wadsworth v. Pacific Ins. Co., 4 Wend. 40, 43, holding underwriters
were not liable for partial loss on memorandum articles, except for gen-
eral average; Poole v. Protection Ins. Co., 14 Conn. 60, where there was
total loss of part of goods insured, being memorandum articles; Moreau
V. United States Ins: Co., 1 Wheat. 227, 4 L. Ed. 78, holding that an in-
siL^r on memorandum articles is only liable for total loss, which cannot
happen where part of cargo reaches its destination; Pearse v. Quebec
S. S. Co., 24 Fed. 287, where a clause that ship owners wduld not be
liable for more than invoice value was construed; Humphreys v. Union
Ins. Co., 3 Mason, 443, Fed. Cas. 6871, where there was an insurance
on eargo principally 'of lemons and oranges, \ where oranges were lost and
the lemons were saved; Newlin v. Insurance Co., 20 Pa. St. 316, holding
that where loss was to equal a certain per cent, the per cent was to be
calculated on total value of the goods; Wallerstein v. Columbian Ins. Co.,
44 N. 7. 216, 4 Am. Bep. 666, to point that each article insured is deemed
subject of a distinct insurance; Wright v. Williams, 20 Hun, 323, where
complaint was held to sufficiently aver total loss ; Pierce v. Columbian Ins.
Co., 14 Allen, 324, where goods were transshipped into other vessels, one
of which was lost; Neidlinger v. Insurance Co., 10 Ben. 262, Fed. Cas.'
10,086, where court said that an insurance upon grain in sacks could not
be said to consist of a single article ; Brooke v. Louisiana Ins. Co., 5 Mart.
(La,) (N. 9i) 536, 541, where court said a constructive total loss is ex-
cluded in all memorandum articles; Silloway v. Neptune Ins. Co., 12 Gray,
87, holding an insurance company to be liable for a total loss on any one
kind of article which is so damaged as to be of no value.
Distinguished in Shultz v. Ohio Ins. Co., 1 B. Mon. 338, holding that
insurers who are to be liable only if the loss equals a certain per cent
are bound for their proportion of salvage, although the loss falls below.
Underwriters aito not Uahle for salvage wbere part of a cargo consisting
of one soecies of arttclee is lont. *
Cited in Wadsworth v. Pacific Ins. Co., 4 Wend. 39, on the right to re-
cover salvage chaises on memorandum articles; Indianapolis Ins. Co. v.
Mason, 11 Ind. 184, to point that expenses of the insured cannot be added
to the loss to bring it up to a certain per cent.
Underwriters are not liable, under sue and labor salvage clause, for sal-
▼aire for part of cargo lost, unless where salvage may have prevented total
loss.
Approved in Munson v. Standard Marine Ins. Co., 166 Fed. 48, 84 C. C. A.
210, holding sue and labor clause did not apply to expense of defending
boat against suit to establish its liability for collision; Henderson Lighting
& Power Co. v. Maryland Casualty Co., 153 N. C. 284,. 30 L. E. A. (N. S.)
1106, 69 S. E. 238, holding indemnity insurer against damage for bodily
injuries not liable for cost of defending groundless action against insured,
or settlement thereunder.
/
'7 Cr. 420-422 NOTES ON U. S. REPORTS. 668
t
7 cr. 420-422, 3 L. Ed. 391; STARE Y. OHESAPEAEB INS. CN3.
Becord of naturalizatioii need not idiow that all reqnisltes to entitle ono
to be admitted to citizensliip bave been complied witb.
Approved in United States v. Stoller, 180 Fed. 913, holding judgment
admitting applicant to citizenship was not subject to collateral attack
for failure of court to comply with directory provisions of statute; United
States V. Aakervik, 180 Fed. 142, holding certificate of citizenship could
not be set aside for perjury in procurement when time to vacate judg-
ment had elapsed before naturalization act of 1906 went into effect ; In re
Symanowsski, 168 Fed. 981, holding applicant entitled to citizenship though
record showed declaration was made before he reached his majority ; Dolan
v. United States, 133 Fed. 449, certified copy of recdrd of court showing
admission of alien to citizenship constitutes "certificate of citizenship"
within Rev. Stats., §§5425, 5427; Tinn v. United States Dist. Atty., 148
Cal. 775, 84 Pac. 152, order vacating order admitting alien to citizenship
for fraud in its procurement, made after lapse of six months from natural-
ization is void; Rockland v. Inhabitants of Hurricane Isle, 106 Me. 172,
76 Atl. 287, holding naturalization record sufficient though it did not show
residence in State for required time; In re Coleman, 15 Blatchf. 426, Fed.
Gas. 2980, where court considered what constituted record of naturaliza-
tion; Priest V. Cummings, 16 Wend. 625, holding that proceedings in rela-
tion to naturalization are liberally construed and every intendment \a \x\
their favor; Harley v. State ex rel. Attorney General, 40 Ala. 697, hold-
ing that plea of naturalization in answer to information need not cover
more than judgment or record; Andres v. Arnold, 77 Mich. 88, 43 N. W.
858, where the question was as to whether declaration of intention could
be made before clerk of court anywhere but in his office or in open court;
Ritchie v. Putnam, 13 Wend. 526, holding judgment pf court admitting
alien to become citizen is conclusive evidence upon that point; The Acorn,
2 Abb. (U. S.) 443, Fed. Cas. 29, and People v. Snyder, 41 N. Y. 409, both
holding that naturalization was judicial act and, as such, conclusive;
McCarthy v. "Marsh, 5 N. Y. 284, holding that a judgment admitting to citi-
zenship could not be impeached by proof contradicting recitals; Common-
wealth V. Towles, 5 Leigh (Va.), 747, holding that certificate of naturaliza-
tion stating that a party took an oath, imported he took the oath in form
prescribed; In re Bodek, 63 Fed. 814, to point that courts admitting to
citizenship act judicially; Croesus M. etc. Co. v. Colorado L. & M. Co.,
19 Fed. 82, to point that courts of record of various States have power
to admit to citizenship; Morgan v. Dudley, 18 B. Mon. 719, 68 Am. Dec.
748, holding that any court of record having common-law jurisdiction can
naturalize ; Mutual Benefit L. I. Co. v. Tisdale, 91 U. S. 245, 28 L. Ed. 318.
to point that the certificate of naturalization is not evidence of residence,
age or character of applicant; McLane v. Moore, 6 Jones (N. C), 524,
on the point that judgment cures all mere irregularity.
Grant of administration as evidence of death. Note, 19 Am. Rep. 150.
Miscellaneous. Cited in Holmgren v. United States, 217 U. S. 517, 19
Ann. G^. 778, 54 L. Ed. 865, 30 Sup. Ct. 588, to point that validity of
statutes regulating naturalization has never been questioned.
5^9 WILLIAMS v. A14R0YD, ^ 7 Cr. 423-434
7 Ct. 425-434, 3 L. Ed. 392, WHJJAMS y. AMBOYD.
Sentence of competent court proceeding in rem is conclnsive with respect
to thing itself and operates as absolute change of property.
Cited in Holcomb v. Phelps, 16 Conn. 132, holding this principle to be
especially true as to judgments of sister States; The Trenton, 4 Fed. 667,
holding that sale in Ontario of an American vessel discharges lien for
necessaries furnished in Cleveland; McKinsey v. Harding, 16 Fed. Cas.
227, 4 N. B. R. 38, to point that the judgment of a competent court is
conclusive as to matter involved; Pel ton v. Platner, 13 Ohio, 217, 42 Am.
I^c. 199, holding that foreign judgment has same effect as in place it was
rendered ; Cushing v. Laird, 107 U. S. 80, 27 L. Ed. 895, 2 Sup. Ct. 204, to
point that proceeding of prize court in rem is conclusive against all world ;
Hilton y. Guyot, 159 U. S. 167, 40 L. Ed. 109, 16 Sup. Ct. 145, where
<'ourt considered conclusiveness of foreign judgment; The Parkhill, 18
^'ed. Cas. 1192,, on the point that jurisdiction of prize courts is exclusive
^^ that of all other courts ; Alabama etc. R. R. Co. v. Jones, 7 Bank. Reg.
^^1, 1 Fed. Cas. 282, to point that bankruptcy record cannot be impeached.
t/adgments in rem and their effect as res adjudicata. Note, 75 Am.
Dec. 72S.
^ere captured goods are sold before condenmatlon, sabsequent c<m-
^^atlon relates back to capture and afilrms it.
^g J^^^ in Jecker v. Montgomery, 13 How. 516, 14 L. Ed. 248, on point
Mv ^^cr of captor to selt captured property and proceed to an ad-
^^tiion afterward.
"Decree condenming captured property is not less binding because the
decree is subversive of law of nations.
Cited in Melhop v. Doane, 31 Iowa, 401, 7 Am. Eep. 150, on the x>oint
that whatever disposition court makes of property it is held valid ^n every
other country; Arnold v. Shields, 5 Dana, 25, 80 Am. Dec. 675, to point
that condemnation of goods under the Milan decree is binding, although
the decree is against the law of nations; Faudel v. Phoenix Ins. Co., 4
Serg. & R. 69, to point that the Berlin and Milan decrees are direct and
flagrant violation of international law.
Foreign judgments. Note, 94 Am. St. Rop. 551.
Conclusiveness of judgment of foreign country. Note, 20 L. B. A*
668.
Law governing validity of transfer of property. Note, 5 £. B. 0. 928,
929.
Blanifest error in decree of a court of competent Jurisdiction does not
^ render it less binding.
Cited in Ex parte Watkins, 3 Pet. 206, 7 L. Ed. 654, holding that judg-
ment in its nature concludes subject on which it is rendered; Wright v.
Marsh, 2 G. Greene, 114, holding that where petition states all the facts
conferring jurisdiction, but omits to describe interests of unknown owners,
defect cannot be collaterally assailed.
7 Cr. 434-455 NOTES ON U. S. REPORTS. 570
7 Or. 434-436, 8 Ii. Bd. 396, SSCTH Y. DELAWABE IKS. 00.
Judgment on verdict "subject to the opinion of the court on the points
reserved," will be reversed where the facts do not appear so that Judgment
might be reversed or ai&rmed on merits.
Approved in Barge v. Haslam, 65 Neb. 659, 91 N. W. 529, following rule.
Liability of marine insurer for losses arising out of war. Kote^ 5
B. B. 0. 12.
7 Or. 436-455, 3 I^ Ed. 896, HAUDSB Y. PABXEB.
Attorney may refer a cause to arbitrators without the consent of his
client.
Approved in Beverley v. Stephens, 17 Ala. 704, following rule; Lee v.
Grimes, 4 Colo. 189, where parties to replevin suit submitted to an arbitra-
tion ; McGinnis v. Curry, 13 W. Va. 47, and Daniels v. City of New London,
58 Conn. 172, 19 Atl. 575, both holding that an attorney could not submit
cause by submission in pais; Stokely v. Robinson, 34 Pa. St. 317^ where
court said this power must be exercised in formal submission precedent
to the award; Mills v. Conner, 1 Blackf. 8, holdings: that consent of par-
ties to rule of reference must appear of record ; Denny ^v. Brown,- 7 Fed.
Cas. 491, holding that such submfssion would bind client without acqui-
escence ; Morris v. Grier, 76 N. C. 411, holding reference without knowledge
or authority of client to be binding; Talbot v. McGee, 4 T. B. Mon. 377,
holding a client bound by admissions of his attorney; Jenney v. Deles-
dernier, 20 Me. 193, holding an attorney may approve receipt taken by an
officer for personalty; Ball v. Ban^ of Alabama, 8 Ala. 599, 42* Am. Dec
653, holding attorney cannot remit liability his client may enforc^ against
a witness ; Jones v. Horsey, 4 Md. 314, 59 Am. Dec. 83, holding an attorney
may transfer case from judges selected by the client;' Alton v. Gilraan-
ton, 2 N. H. 521, holding an attorney has authority ex 66icio to bind his
client by agreement in certain cases; Pike v. Emerson, 5 N. H. 394, 22
Am. Dec. 468, holding that an attorney may waive his client's right of
appeal; Fogg v. Dummer, 58 N. H. 507, holding that selectmen may sub-
mit to arbitration; Hale v. Lawrence, 22 N. J. L. 87, holding that attorneys
may stipulate touching the conduct and management of suits; Clark v.
Randall, 9 Wis. 138, 76 Am. Dec. 255, holding that an attorney employed
to collect a debt has authority to indemnify officers making a levy; Smith
V. Bossard, 2 McCord Ch. (S. C.) 408, holding that an attorney may refer
all matters of account to special accountants; Whitestown Mill Co. v.
Zahn, 9 Ind. App. 273, 36 N. E. 654, holding an attorney may bind client
as to the manner of trial; Eastman v. Burleigh, 2 N. H. 488, holding that
if one agree to refer a cause on behalf of himself and another his authority
must appear.
Who may submit causes to arbitration when acting for another. Note,
80 Am. Doc 628.
571 HALKER v. PARKER. 7 Cr. 436-455
Attorney cannot compromlBe without consent of client, yet court would
be disinclined to disturb comprondse unless so unreasonable as to Indicate
imposition or fraud.
Approved in United States v. Beebe, 180 U. S. 351, 45 L. Ed. 569, 21 Sup.
Ct. 374, holding that United States district attorney has no x>ower to com-
promise suits; Christy v. Atchison, T. & S. F. Ry. Co., 233 Fed. 256, up-
holding stipulation made by attorney for county admitting existence of
relevant facts; 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 ad-
judicated; Davis V. First Nat. Bank, 139 Ga. 711, 78 S. E. 194, holding
complaint stated c&jase of action to set aside decree entered by consent
of counsel in opposition to instructions of client; Kilmer v. Gallaher, 112
Iowa, 585, 84 N. W. 697, holding assistant counsel cannot consent to entry
of judgment as part of compromise; Nelson v. Nelson, 111 Minn. 188,
189, 137 Am. St. Rep. 549, 81 L. R. A. (N. S.) 523, 126 N. W. 733, holding
validity of former compromise and settlement made by attorney was
proper issue in new action on same cause; Raming v. Metropolitan St. Ry.,
157 Mo. 490, 50 S. W, 794, holding prochein ami cannot apply for change
of venue; Harris v. Root, 28 Mont. 168, 72 Pac. 432, holding where con-
tract for attorney's fees in will contest provided that ''your fee in case
will is defeated and our clients get their shares shall be," etc., and case
was compromised, attorney taking part, recovery of attorney must be in
quantum meruit and not on contract; Beliveau v. Amoskeag Co., 68 N. H.
227, 73 Am. St. Bep. 579, 40 Atl. 735, upholding agreement by an attorney
for entry and satisfaction of judgment on payment of > certain sum; Bank
of Qlade Spring v. McEwen, 160 N. C. 422, Anli. Gas. 19140, 542, 76 S. £.
225, holding so much of consent judgment as did not receive consent of
defendant parties was not binding; Fleishman v. Meyer, 46 Or. 275, 80
Pac. 213, attorney at law, in absence of express authority, cannot com-
promise claim for client; Maddux v. Bevan, 39 Md. 493, 501, and Davidson
V. Rozier, 23 Mo. 389, both following rule; Levy v. Brown, 56 Miss. 89,
holding an attorney could release all attachments and liens not belonging
to original demand; Bonnefield v. Thorp, 71 Fed. 928, where court said
subject matter of the litigation is ^clusively within the control of client;
Saleski v. Boyd, 32 Ark. 83, 84, and Smith v. Dixon, 3 Met. (Ky.) 444,
both holding that attorney under general power cannot compromise; Pres-
ton V. Hill, 50 Cal. 51, 19 Am. Rep. 650, holding that an attorney could
not compromise an custion and consent to entry of judgment in accordance
with stipulation; Dewart v. Loomer, 21 Conn. 257, holding that an attor-
ney employed to commence and prosecute suit could not settle and discharge
it; North Whitehall v. Keller, 100 Pa. St. 108, 45 Am. Rep. 362, where
an attorney compromised an award obtained against a township for road
damages ; Watt v. Brookover, 35 W. Va. 326, 29 Am. St. Rep. 814, 13 S. E.
1008, holding that attorney employed to collect cannot compromise claim
after judgment; Eaton v. Knowles, 61 Mich. 632, 28 N. W. 742, holding
/
7 Cr. 436-465 NOTES ON U. S. REPORTS. 572
that author! fy to compromise a claim cannot be implied from authority to
collect and receive payment; Crotty v. Eagle, 35 W. Va. 151, 13 S. B. 62,
holding that an attorney cannot by an agreement in pais commute debt
or compromise the suit ; Jeffries v. Mut. L. Ins. Co., 110 IT. S. 309, 28 L. Ed.
157, 4 Sup. Ct, 11, holding that an attorney could compromise after death,
where his power of attorney was coupled with an interest; Huston v.
Mitchell, 14 Serg. & R. 309, 16 Am. Dec. 507, where an attorney com-
promised by an agreement that land should be taken in place of money;
Beliveau v. Amoskeag etc. Co., 40 Atl. 735, sustaining final settlement in
nature of a compromise made by an attorney; Union etc. Ins. Co. v.
Buchanan, 100 Ind. 78, holding that an attorney has no general power to
compromise claims; Potter v. Parsons, 14 Iowa, 289, to point that a com-
promise will not be relieved against unless so unreasonable as to warrant
belief that attorney was imposed upon; Williams v; Nolan, 58 Tex. 713,
holding that equity will set aside judgment on an unauthorized agreement
only when^ the plaintiff has received injury requiring relief; Whipple v.
Whitman, 13 R. I. 514, 43 Am. Bep. 45, holding that fair compromise with
assent of parties in interest but not of the plaintiff of record, will not be
disturbed; De Louis v. Meek, 2 G. Greene, 70, 50 Am. Dec. 504, holding
equity would interfere if it worked great injustice; Roller v. Woolbridge,
46 Tex. 495, where court said tha^ the conduct of a party seeking to be
relieved should be faultless; Mayer v. Foulkrod, 4 Wash. C. C. 511, Fed.
Cas. 9342, where one, after receiving the fruits, acquiesced for ten or
twelve years in what had been done; Luce v. Foster, 42 Neb. 827, 60 N. W.
1030, holding an attorney could not execute an indemnity bond to a sheriff ;
Markley v. Amos, 8 Rich. 469, holding an attorney may submit client's
cause to arbitration by rule of court but in no other way; Adams' Assignee
V. Roller, 35 Tex. 712, where an attorney agreed that plaintiff should take
judgment by default for certain sum, with a stay of execution; Fife v.
Bohlen, 22 Fed. 882, holding an attorney could not bid for his client at
sheriff's sale; Hardesty v. Pyle, 15 Fed. 781, where an attorney without
any special authority signed an agreement as basis of a consent decree;
Dalton V. West End St. Ry. Co., 159 Mass. 223, 38 Am. St. Rep. 411, 34
N. E. 262, holding that stich a judgment on an unauthorized agreement by
,an attorney will be vacated on application, though paid; Bunton v. United
States, 62 Fed. 171, holding that after judgment decree will not be opened
because an agreement of an attorney was unauthorized; Jubilee Placer
Co. v. Hossfield, 20 Mont. 237, 50 Pac. 717, where letter from client was
held only to authorize dismissal, not decree determining rights; Hale v.
Crowell, 2 Fla. 540, 50 Am. Dec. 305, to point that one should not be
permitted to suffer because of the mismanagement and errors of his attor-
ney; Halliday v. Stuart, 151 U. S. 235, 38 L. Ed. 144, 14 Sup. Ct. 304,
where an agreement was made by attorneys that property might be sold
pending an appeal; Merritt v. Clow, 2 Tex. 589, and Powell v, Spaulding,
3 G. Greene, 468, holding that an unauthorized confession of judgment
will be set aside; Marbourg v. Smith, 11 Kan. 562, holding that an un-
573 BARNITZ V. CASEY. 7 Cr. 450-471
authorized agreement by an attorney that dismissal should be bar was
nullity; White v. Davidson, 8 Md. 186, 63 Am. Dec. 703, holding that an
attorney in an injunction suit cannot bind his client to indemnify a surety;
Glezen v. Farrington, 7 R. I. 282, and Holbert v. Montgomery, 5 Dana, 14,
both holding that powers and duties of attorney cease when final judgment
is rendered; Holbert v. Montgomery, 5 Dana (Ky.), 13, holding that after
final judgment counsel cannot consent to set it aside; Foster v. Wiley, 27
Mich. 247, 15 Am. Rep. 186, where the court said authority of attorney
does not cease on recovery of judgment in all cases; Southern Kansas Ry.
Co. V. Pavey, 57 Kan. 527, 46 Pac. 971, holding stipulation that issue 6f
negligence should abide Supreme Court decision in another case, was bind-
ing; Isaacs V. Boyd, 5 Port, 393, where the court considered the powers of
a prochein ami.
Right of attorney to compromise or arbitrate. Note, 30 Am. Rep.
359, 360.
Right of attorney to compromise client's cause of action. ' Notes,/ 41
Am. Rep. 349; 21 Ann. Gas. 577. '
Powers of attorneys at law. Note,' 76 Am. Dec. 261.
Implied authority of attorney in conducting litigation. Note, 132 Am.
St Rep. 152, 166, 169, 170.
Implied power of attorney to compromise cause of action. Note, 31
L. R. A. (N. S.) 525.
Power to bind client by consent decree. Note, 46 L. R. A. (N. S.) 75(i.
Miscellaneous, tlited in Miocene Ditch Co. v. Campion Mining etc. Co.,
197 Fed. 499, 117 C. C. A. 61, to point that court could not enforce agree-
ment for judgment made by attorney without authority of client.
7 Or. 45^-471, 3 L. Ed. 403, BABNITZ ▼. CASEY.
If leRiilatiire proceed on mistake, court cannot enlarge natural import of
Words in order to supply deflc^ncles occasioned hy that mistake.
Cited in Blair v. Adams, 59 Fed. 247, where statute giving bastards a^
right to inherit and transmit was construed.
Maryland statute of descents does not provide for descent from brotker
to brother; tklB is governed by common law.
Cited in Carroll v. Lessee of Carroll, 16 How. 283, 14 L. Ed. 940, to point
as to the effect of a change in the statute relating to wills.
Distinguished in McManus v. Lynch, 28 App. D. C. 389, determining
descent under D. C. Code, §§ 940, 950, where decedents' only descendants
were descendants of maternal grandfather.
Succession to estates of intestates. Note, 12 Am. St. Eep. 105.
Executory devise is not too remote if' contingency may happen within
life or lives in being, or twentor-one years and few months after.
\
■N
7 Cr. 456-471 NOTES ON U. S. REPORTS. 574
Approved in Mohn v. Mohn, 148 Iowa, 302, 126 N. W. 1132, holding con-
tingent remainder may be deviled' on contingency of event, and not of
^ person; Keeler v. Lauer, 73 Kan. 394, 85 Pac. 543, upholding trast ter-
minating within twenty-one years; Becker v. Chester, 115 Wis. 132, 91
•N. W. 102, upholding trust of personalty directing delivery at expiration
of lives in being at creation of estate and the added common-law period
thereafter; In re Kopmeur, 113 Wis. 239, 89 N. W. 136, upholding devise
after testator's wife's death, to his children, but no part of estate to be
conveyed before expiration of twenty-one years; dissenting opinion in
"^an Home v. Campbell, 100 N. Y. 320, 3 N. E. 778, to point that subse-
quent words of limitation creating a remainder control the apparent import
of a prior devise; Dallam v. Dallam, 7 Har. ft J. 239, 249, where words
were same as in the principal case; Abbott ▼. The Essex Co., 2 Curt. 135,
Fed. Cas. 11, to point as to when an estate is a conditional fee simple and
not an estate-tail.
Rule against perpetuities. Note, 49 Abl St. Rep. 117«
Perpetuities anii their value. Note, 21 E. R. 0. 166.
Contingent remainders and executory devises are transmissible to Tiein of
party to whom they are limited, If he die hefore contingency happens.
Approved in Holcomb v. Wright, 5 App. D. C. 87, holding on devise of fond
to another for life and remainder to infant son of testatrix with residue of
estate to infant and heirs on condition that if infant dies during minority
entire estate should go to mother, where infant survived mother but died dur-
ing infancy, executory devise went to heirs of mother; Landio v. Simms, 1
App. D. C. 511, holding under devise to wife for life, with remainder in fee
simple to children if any sur^dved, such surviving child took by purchase
under will; Calvin v. Springer, 28 Ind. App. 447, 63 N. E. 42, construing
feontingent bequest; Fisher v. Wagner, 109 Md. 251, 21 L. R. A. (N. S.)
121, 71 Atl. 1002, holding contingent estate of inheritance coupled with an
interest transmissible by descent and devisable where person to take was
certain; Mercer v. Hopkins, 88 Md. 312, 41 Atl. 159, construing trusts
under will; Ackless v. Seekright, Breese, 79, where executory devise was
held to pass to one's heirs, although he died before contingency happened;
Conner v. Waring, 52 Md. 734, where court held that an estate vested by
way of reverter in heirs at law of the original donor of a power; Shadden
V. Hembree, 17 Or. 24, 18 Pac. 576, where court considered contingency
upon which an executory devise may be limited; Buck v. Lantz, 49 Md.
444, 445, where the one through whom claim is made died before contin-
gency happened ; Garrison v. Hill, 79 Md. 81, 47 Am. St. Rep. 365, 28 Atl.
1063, holding that only those in esse when contingency happens can take;
Payne v. Rosser, 53 Ga. 664, holding that interests descend to such as
answer character of heirs when estate was determined; Bevan v. Taylor,
7 Serg, & R. 398, where court construed statute of descents in Pennsyl-
vania; George v. Green, 13 N. H: 527, on the point that it is not necessary
that possession or an unexecuted interest should be in testator; Medley v.
675 BLACKWELL v. PATTON. 7 Cr. 471-480
•
Medley, 81 Va. 271, where court said that rule laid down in the principal
case was jrule of the conunon law and that it had been abrogated in Vir-
ginia; Howard v. Trustees, 41 Atl. 159, devise in trust for X. for lifetime,
then in trust for his children for twenty years, vests only at the end
of the twenty years if X. die without issue.
Time to which contingency of death of legatee* or devisee without
child or issue, upon which gift conditioned is referable. Note, 25
L. B. A. OX. S.) 1154.
Tenant in common cannot maintain ejectment against his cotenant nnlesfl
thm is an actual ouster.
Approved in Nehcr ▼. Armijo, 9 N. M. 339, 54 Pac. 241, following rule;
Story V. Saunders, 8 Humph. 668, where court said that tenants in common
are jointly seized of entire estate ; Fuller v. Montague, 69 Fed. 215, 16 U. S.
App. 391, holding partition suit could not be maintained by persons not'
having legal title against persons in possession claiming adversely; Aber-
crombie v. Baldwin, 15 Ala. 368, holding that po^ession of one tenant
in common may become antagonistic and exclusive; Neher v. Armijo, 54
Pac. 241, holding grantors of certain tenants in common had acquired
adverse title against remaining tenants; Taylor v. Hill, 10 Leigh (Va.),
465, holding that in ejectment by one tenant in common against cotenant,
actual ouster must be found.
iliscellaneous. Cited in Adams y. Yazoo etc. R. R. Co., 24 South. 319,
remarking that Mr. Justice Story corrected and changed the opinion in
the principal case after the first edition of 7 Cranch was published, in
holding that decision reversing a cause might be added to after a retrial
below; Railroad v. Adams, 77 Miss. 308, arguendo.
7 Cr. 471-480, 3 L. Ed. 408, BLAOEWELL ▼. PATTOK.
Declaration Ifi ejectment may be amended by making date of conveyance
aUeRed conform to proof.
Approved in King v. Davis, 137 Fed. 211, under Code Va. 1887, section
3253, where i^ ejectfiient original declaration contained description of land
and allegation that defendants were unlawfully withholding possession
from plaintiff, he could amend description before defendants' appearance;
Den ex dem. Williamson v. Snowhili, 13 N. J. L. 32, 22 Am. Dec. 505,
holding that amendments of declarations in ejectment are freely allowed;
Garland v. Davis, 4 How. 154, 11 L. Ed. 918, where court refused to allow
replead^er, but remanded cause so that pleading might be amended; Buch-
anan V. Trotter, 4 Fed. Cas. 539, to point that courts do not hesitate to
grant amendments in matters of substance up to the period that case
terminates in judgment.
Distinguished in Den ex dem. Vanarsdalen v. Hull, 9 N. J. L. 282, on
ground that there was no analogy between Circuit Court of the United
States and of State Circuit Court.
«
\
7 Cr. 481-487 NOTES ON U. S. REPORTS, 676
7 Or. 481-487, 3 L. Ed. 411, MILLS ▼. DUBYEE.
Judgment of one State has same effect in other States as In the State
wliere rendered. . \
Approved in Jordan v. Muse, 88 Ark. 590, 115 S. W. 162, and Damon v.
Webber, 111 Me. 477, 89 Atl. 736, both following rule; Bigelow v. Old
Dominion Copper Min. etc. Co., 225 U. S. 135, Ami.*^Oas 1913E, 875, 56
L. Ed. 1024, 32 Sup. Ct. 641, decree of Circuit Court sitting in New York
dismissing suit in personam against one of two joint tort-feasors not
denied full credit by refusal of Massachusetts court to give it effect as bar
against other who was nonresident of New York and not party to first
suit; Smithsonian Institution v. St. John, 214 U. S. 28, 53 L. Ed. 897, 29
Sup. Ct. 601, holding erroneous construction of statute by State court did
not deny judgment right to full faith and credit; Old Wayne Mutual Life
Assn. V. McDonough, 204 U. S. 16, 51 L. Ed. 348, 27 Sup, Ct. 236, holding
personal judgment against corporation of another State without its ap-
pearance or legal notice of suit was void for want of due process of law;
Bryar v. Campbell, 177 U. S. 654, 44 L. Ed. 928, 20 Sup. Ct. 796, holding
State court judgment res adjudicata; Carpenter v. Beal-McDonnell & Co.,
222 Fed. 459, holding rule applied to judgment on gambling contract not
declared void by law of State where rendered; Keyser v. Lowell, 117 Fed.
402, holding void Colo. Sess. La"^s 1899, chapter 113, barring action on for-
eign judgment against its residents ; Union etc. Planters' Bank v. Memphis,
111 Fed. 571, holding in Federal courts effect of State court judgment when
pleaded as res adjudicata depends on law of State where rendered ; Bidwell
V. Huff, 103 Fed. 376, holding State court judgment is good foundation for
creditor's bill in Federal court ; 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 defendant
on original debt, leave denied; Bonfils v. Gillespie, 25 Colo. App. 500, 139
Pac 1056, holding judgment of another State was not merely evidence
of debt, and suit thereon only raised question whether judgment had been
recovered; Sistare v. Sistare, 80 Conn. 4, 125 Am. St. Bep. 102, 66 Atl.
773, holding where decree for maintenance was subject to change at dis-
cretion, and enforceable in State of origin only by special process, it
had no extraterritorial force; Whitley v. Spokane etc. Ry. Co., 23 Idaho,
657, 132 Pac. 125, holding recovery for death under Idaho statute in
another State did not bar suit by one who was heir under Idaho law, but
not under law of State where judgment was recovered; American Mut.
Life Ins. Co. v. Mason, 159 Ind. 16, 18, 64 N. E. 525, 526, holding that
transcript of sister State judgment shows jurisdiction and presence of
judge; Barbee v. Shannon, 1 Ind. Ter. 208, 40 S. W. 587, holding judgment
in court of Creek Nation that lease was valid precluded inquiry as to valid-
ity in District Court; Old Dominion Copper Min. etc. Co. v. Bigelow, 203
Mass. 207, 40 L. R. A. (N. S.) 314, 89 N. £. 214, holding rule applied in
courts of State to judgment of Federal court in State; Lieber v. Lieber,
239 Mo. 30, 143 S. W. 467, holding such judgment could be set aside
\
577 MILLS V. DURYEE. 7 Cr. 481-487
for extrinsie fraad in its procurement, but evidence herein did not show
such fraud; Anthony v. Wilson, 74 N. J. L. 631, 65 Atl. 988, approving
instruction in action on judgment of another State that burden was on
defendant to show lack of jurisdiction of court rendering it; Levin v.
Gladstein, 142 N. C. 486, 115 Am. St. Bep. 747, 32 L. R. A. (N. S.) 905,
55 S. E. 373, holding judgment of another State void on ground that it
was procured by fraud; Gray v. Richmond Bicycle Co., 167 N. Y. 356,
60 N. E. 665, holding judgment in one State against maker of note ob-
tained by payee is bar to suit by transferee in another State; Kelly v.
Kelly, 118 Va. 379, 87 S. E. 568, holding decree of Massachusetts court
that wife left husband for good cause barred husband's action for divorce ;
Anderson etc. v. Chicago Title, etc. Co., 101 Wis. 391, 77 N. W. 712,
holding judgment of County Court cannot be collaterally attacked in
another State; dissenting opinion in Haddock 7. Haddock, 201 U. S. 626,
632, 50 L. Ed. 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 decree enforceable in other States against
defendant constructively served; dissenting opinion in Smith v. Willung,
123 Wis. 386, 101 N. W, 695, arguendo; Wiggins Ferry Co. v. Chicago
etc. R. R. Co., 3 McCrary, 613, 614, 11 Fed. 381, to point Congress has full
4)0wer to give conclusive effect to judgments of State courts; Suydain v.
Barber, 18 N. Y. 471, 75 Am. Dec. 256, holding such judgments are not
entitled to any higher or other effect than in the State where rendered;
Sharon v. Hill, 11 Sawy. 304, 371, 26 Fed. 346, 391, where court said that
law of State where judgment was rendered governs its effeist and opera-
tion in national courts ; Dearing v. Bank of Charleston, 5 Ga. 518, 48 Am.
Dec. 316, to point that judgment of sister State void where made is void
elsewhere; Wilbur v. Abbott, 60 N. H. 51, holding that judgment valid in
sister State is not in another State unless it would have been valid if
rendered there; Gulick v.-Loder, 13 N. J. L. 70, 23 Am. Dec. 712, and
Scott V. Bogart, 14 La. Ann. 263, Crapo v. KeUy, 16 Wall. 637, 21 L. Ed.
440, to point that judgment of another State has same effect in every
other State as in State where rendered; Christmas v. Russell, 5 Wall. 302,
18 L Ed. 478, holding statute destroying right to enforce a judgment was
void; Hilton v. Guyot, 159 U. S. 182, 187, 200, 40 L. Ed. 115, 116, 121,
16 Sup. Ct. 151, 152, 157, and McElmoyle v. Coken,. 13 Pet. 326, 328, 10
L. Ed. 184, 185, both holding judgment was conclusive upon merits ; Hackee
V. Caimes, 2 Mart. (N. S.) 601, holding such judgment between same
parties for same thing sustains plea of res judicata; Barnes v. Gibbs, 31
N. J. L. 318, 86 Am. Dec. 210, holding judgment in one State bars second
action for same cause in another State ; Moore v. Paxton, Hempst. 51, Fed.
Cas. 9772a, holding that where process was served on defendant or his
appearance entered judgment was conclusive; Sayre v. Harpold, 33 W. Va.
557, 11 S. E. 17, and Goodrich v. Jenkins, 6 Ohio, 44, both holding judg-
ment was conclusive not only as to all matters determined but as to all
which could have been determined; Dudley v. Lindsey, 9 B. Mon. 488,
1—87
7 Cr. 481-487 NOTES ON U. S. REPORTS. 678
50 Am. Dec. 524, McCaiiley v. Hargroves, 48 Ga. 52, 15 Am. Rep. 661, and
Dickinson v. Railroad Co., 7 W. Va. 418, all considering effect of Federal
judgments; Blackwell v. Glass, 43 Ark. 212, Mastin v. Gray, 19 Kan. 464,
27 Am. Rep. 154, Warren v. Flagg, 2 Pick. 449, Robinson v. Prescott, 4
N. H. 453, Silver Lake Bk. v. Harding, 5 Ohio, 547, and Thomas v. Robin-
son, 3 Wend. 269, all discussing effect of judgments of a justice of the
peace; Stell v. Glass, 1 Ga. 486, on point that an order by court within its
jurisdiction cannot be attacked indirectly; Anderson v. Chicago Title etc.
Co., 77 N. W; 712, giving Illinois county judgment full faith in Wisconsin ;
McDade v. Burch, 7 G^. 564, 50 Am. Dec. 411, where rule was applied to
an order of court of ordinary directing an administrator to sell; Mutnal
Life Ins. Co. v. Harris, 97 U. S. 336, 24 L. Ed. 962, holding final judgment
to be admissible under general issue in assumpsit or when specially pleaded ;
Dow V. Johnson, 100 U. S. 186, 25 L. Ed. 642, where one sued in Circnit
Court on judgment rendered in State court against officer during war for
seizing goods; Holcomb v. Phelps, 16 Conn. 132, where rule of principal
case was applied to a decree of Probate Court ; Slack v. Walcott, 3 Mason,
519, Fed. Cas. 12,932, to point that probate, conclusive where made, is
conclusive in other courts; Liatine v. Clements, 3 Ga. 429, holding that
action will lie against an administrator with will annexed in Georgia on
judgment obtained in Virginia against an executor; Virginia ▼. Levy, 23
Gratt. 38, holding that a decree construing a will in one State was con-
clusive in another; Sanborn v. Perry, 86 Wis. 366, 56 N. W. 339, holding
that disallowance of claim was given same effect in sister State as where
rendered ; Kingman v. Paulson, 126 Ind. 509, 22 Am. St. Bep. 613, 26 N. E.
393, applying rule to judgment by confession; Dillingham v. Hawk, 60
Fed. 498, 23 U. S. App. 273, holding judgment in State court against re-
ceiver appointed by Federal court to be conclusive; Cheever v. Wilson, 9
Wall. 123, 19 L. Ed. 608, and Dickson v. Dickson, 1 Terg. 114, 24 Am. Dec.
447, both holding that decree of divorce valid where made was valid every-
where; Alkine Grocery Co. v. Richesin, 91 Fed. 83, holding State court
judgment estopped parties from raising question thus decided in the Fed-
eral court ; Cochran v. Fitch, 1 Sand. Ch. 146, holding attachment regularly
prosecuted was a bar to suit by creditor to enforce demand; Mutual F. I.
Co. V. Phoenix Fur. Co., 108 Mich. 172, 62 Am. St. Rep. 694, 66 N. W. 1095, '
holding judgment against corporation fixing the indebtedness and direct-
ing an assessment is conclusive in an action for assessment; Cole v. Flit-
craft, 47 Md. 320, holding prior suit in another State in personam between
same parties for same cause of action would not bar suit; Harrington v.
Harrington, 154 Mass. 519, 28 N. E. 903, holding an action to compel a
transfer of trust estate and to pay over rents and profits was bar to an
action for rents and profits ; Burnham v. Webster, 1 Wood. & M. 175, Fed.
Cas. 2179, where an action was brought on note, and defendant, to bar.
it, offered in evidence a former judgment in foreign court; City of New
Bedford, 20 Fed. 62, where court said that compulsory payment under
judgment on a garnishee process in Massachusetts should be deemed ^ralid
579 MILLS V. DUEYEE. 7 Cr. 481-487
by comity; Kittredge v. Emerson, 15 N. H. 263, Whittemore v. Adams, 2
Cow. 633, and Haggerty v. Amory, 7 Allen, 459, discussing effect of a dis-
charge in bankruptcy in another State; Green v. Van Buskirk; 7 Wall.
148, 19 L. Ed. 112, considering effect of judgment on an attachment in one
State against a chattel mortgage in another State where parties were
domiciled; Tucker v, Harris, 13 Ga. 10, 58 Am. Dec. 493, and HoUister v.^
Abbott, 31 N. H. 448^ 64 Am. Dec. 344, to point that correctness of judgment
camiot be attacked collaterally; West Feliciana R. R. Co. v. Thornton, 12
La. Ann. 738, 68 Am. Dec. 781, holding judgment cannot be impeached on
account of its not being logical sequence of opinion ; Kinnier ▼. Kinnier, 45
N. T. 541, 6 Am. Rep. 137, holding judgment of sister State cannot be
impeached by showing irregularity or nonconformity with some law; Wy-
man y. Campbell, 6 Port. 237, 31 Am. Dec. 686, holding that judgment was
eoncluaive though the record abounded with irregularities which would
authorize its reversal; Walker v. Sleight, 30 Iowa, 326, holding it could
not be shown that the judgment was for greater amount than claimed;
Barras v. Bidwell, 3 Woods, 7, Fed. Cas. 1039 ; Wilcox v. Kassick, 2 Mich.
168, 169, 171, 173, Marton v. Naylor, 1 Hill (S. C), 440, Estes v. Kyle,
Meigs, 42, Fletcher y. Ferrel, 9 Dana (Ky.), 377, 85 Am. Dec. 148, and Bank
of North America y. Wheeler, 28 Conn. 439, 78 Am. Dec 684, all holding
that whatever plea would be goocL in State where judgment was rendered
would be good and no other; Dunbar y. Hallowell, 34 111. 169, and Tenny
V. Townsend^ 9 Blatehf. 277, Fed. Cas. 13,832, both holding judgment is
prima facie evidence pf jurisdiction; Citizens' Bank v. Brooks, 23 Fed.
22, 23 Blatehf. 138, Crawford v. Simonton, 7 Port. 127, Lawrence v. Jarvis,
32 111. 309, Wemwag v. Pawling, 5 Gill & J. 507, 25 Am. Dec. 319, Miller
V, Ewing, 8 Smedes & M. 431, Pennywit v. Foote, 27 Ohio St. 617, 22 Am.
Rep. 349, Rathbone v. Terry, 1 R. I. 77, and McCreery v. Davis, 44 S. C.
211, 51 Am. St. Rep. 805, 22 S. E. 184, all holding that want of jurisdiction
may be shown in action upon judgment ; Price v. Hickok, 39 Vt. 300, Mid-
dlesex Bk. V. Butman, 29 Me. 24, and Hunt v. Ellison, 32 Ala. 202, all
holding that judgment is void if the record shows that the court had no
jurisdiction ; Foster v. Glazener, 27 Ala. 398, and Hall v. Williams, 6 Pick.
237, 246, 17 Am. Dec. 859, 366, holding that, under plea of nil debet, de-
fendant may show want of jurisdiction; Graham v. Spencer, 14 Fed. j605,
Thompson v. Whitman, 18 Wall. 462, 21 L. Ed. 899, Bradshaw v. Heath, 13
Wend. 416, 416, 423, and Price v. Schaeffer, 161 Pa. St. 534, 29 Atl. 279,
all holding record may be contradicted by evidence of facts impeaching
jurisdiction; People v. Dawell, 25 Mich. 269, holding recital of facts show-
ing jurisdiction was not conclusive where judgment came collaterally in
question; Zepp v. Hager, 70 111. 225, and Carpentier v. City of Oakland,
30 Cal. 446, both holding that inquiry into the jurisdiction is restricted
to an inspection of the record; Wheeler v. Raymond, 8 Cow. 314, holding
defendant's appearance conclusive of sister State court's jurisdiction;
Potter V. Merchants' Bk., 28 N. T. 654, 86 Am. Dec. 279, to point as to
whether jurisdiction may be proved by recitals in record; Barrett v. Oppen-
7 Cr. 481-487 NOTES ON U. S. REPORTS. 580
heimer, 12 Heisk. 302, to point that question of jurisdiction, when deter-
mined, is as conclusive as any other question decided; Hunt v. Ellison,
32 Ala. 212, to point that knowledge of suit shown by parol evidence and
dehors record fixes liability; Hoxie v. Wright, 2 Vt. 267, holding judgment
to be conclusive, although defendant ^resided out of the State, if he ap-
peared and made defense; Fisher v. March, 26 Gratt. 778, where effect of
record showing, or failing to show, jurisdiction was considered; Sammis v.
Wightman, 31 Fla. 25, 12 South. 530, holding that one attacking jurisdic-
tion must negative every fact upon which such jurisdiction can be predi-
cated;' Jarvis v. Ro{>inson, 21 Wis. 525, 94 Am. Dec. 560, holding that tvaiit
of jurisdiction must be specially pleaded, unless it positively appears from
record; Wilson v. Jackson, 10 Mo. 332, 333, where sufficiency of plea to
jurisdiction was considered; Moch v. Insurance Co., 4 Hughes, 119, 10
Fed. 706, holding that, although court may inquire into question of juris-
diction, this does not relieve parties from operation of principle of res
judicata; Aldrich v. Kinney, 4 Conn. 383, 10 Am. Dec. 152, Pritchett v.
Clark, 3 Harr. 259, Moulin v. Trenton etc. Ins. Co., 24 N. J. L. 230, 231,
236, 240, 241, Shumway v. Stillman, 6 Wend. 450, Hoffman v. Hoffman,
46 N. Y. 33, 7 Am. Bep. 801, Fei^son v. Crawford, 70 N. Y. 261, 26 Anu
Bep. 595, Newcomb v. Peck, 17 Vt. 309, 44 Am. Dec. 341, and Crumlish v.
Central Imp. Co., 38 W. Va. 398, 45 Am. St. Rep. 878, 18 S. E. 459, all
holding that judgment without any service of process and without appear-
ance is void; Melhop v. Doane, 31 Iowa, 400, 406, 7 Am. Bep. 150, 154, and
Middlesex Bk. v. Butman, 29 Me. 23, and Burt v. Delano, 4 Cliff. 616, Fed.
Cas. 2211, holding judgment is void if rendered against nonresident upon
whom no service has been made; Dowver v. Shaw, 22 N. H. 282, to point
that an attachment of property cannot have effect to extend jurisdiction
over person of absent owner ; Gilchrist v. West Virginia, 0. & 0. L. Co., 21
W. Va. 118, 45 Am. Bep. 557, and Dearing v. Bank of Charleston, 5 Ga.
512, 48 Am. Dec. 310, holding decree against corporation, without any ap-
pearance, was of no effect; Jardine v. Reichert, 39 N. J. L. 167, holdin<^
that no mere irregularity in service could be set up; in Wetherill v. Stillman,
65 Pa. St. 115, Bennett v. Morley, 10 Ohio, 102, 103, and May v.^ Jameson,
11 Ark. 373, holding that a record showing personal service cannot bo
contradicted; Swift v. Stark, 2 Or. 101, 88 Am. Dec. 465, and Bonesteel v.
Todd, 9 Mich. 376, 80 Am. Dec. 91, considering effect of judgment under
joint debtor act, where all were not served; Bowler v. Huston, 30 Gratt.
274, 32 Am. Bep. 677, holding judgment against all members of dissolved
firm will not bind partner who was not served; Easterly v. Goodwin, 35
Conn. 278, holding that judgment, where property had been attached but
no service made, could not be basis of action of debt; Sanford v. San ford,
28 Conn. 20, Harshey v. Blackmarr, 20 Iowa, 172, 89 Am. Dec. 522, and
Sperry v. Reynolds, 65 N. Y. 187, all holding judgment may be set aside
when there is no appearance or an unauthorized appearance; Baltzell v.
Nosier, 1 Iowa, 588, 68 Am. Dec. 467, holding that defendant may deny
authority of the attorney who appeared for him'; Rogers v. Bums, 27 Pa.
I
I
/
581 MILLS V. DURYEE. 7 Cr. 481-487
St. 526, holding judgment cannot be impeached, becanse exemplification
does not show- warrant of attorney to institute suit ; Lynch v. Colum-
bus etc. Ry, Co., 67 Fed. 996, Middlebrooks v. Springfield F. I. Co., 14
Conn. 307, Van Cleaf v. Bums, 133 N. Y. 542, 30 N. E. 662, and Burnley v.
Stevenson, 24 Ohio St. 479, 15 Am. Bep. 626, considering effect of judg-
ments operating on property in another. State ; Miller v. Leach, 95 N. C.
231, l^olding judgments of sister States are conclusive of all questions
involved, except fraud and want of jurisdiction; Benton v. Burgot, 10
Serg. & R. 242, holding a plea of fraud was bad; Davis v. Smith, 5 Ga.
297, 48 Am. Dec. 296, Hunt ▼. Hunt, 72 N. Y. 225, 28 Am. Bep. 134, and
Bimeler v. Dawson, 5 111. 540, 39 Am. Dec. 432, all holding decree of sister
State could be impeached for fraud or for want of jurisdiction; Ambler
y. Whipple, 139 111. 324, 32 Am. St. Bep. 211, 28 N. E. 844, holding plea of
fraud was not admissible where court had jurisdiction of person and
subject matter; McJilton v. Love, 13 111. 493, 54 Am. Dec. 452, holding
pendency of a suit in one State was no bar to suit in another; Rogers v.
Odell, 39 N. H. 458, 460, Morris v. Burgess, 116 N. C. 42, 21 S. E. 28,
McGilvray v. Avery, 30 Vt. 540, 541, Whiting v. Burger, 78 Me. 294, 4
Atl. 696, Bank of United States v. Merchants' Bk., 7 Gill, 418, 432, and
Wright V. White, 14 La. Ann. 585, all holding plea that, since commence-
ment of the action, judgment had been rendered in sister State, was good ;
Paine v. Schenectady Ins. Co., 11 R. I. 413, 416, and Piedmont etc. L. I. Co,
V. Ray, 75 Va. 823, both considering effect of an appeal or writ of error;
Gulick V. Loder, 14 N. J. L. 574, where court said that record of judgment
was binding, however unlike the record court was used to; Breuglc v.
McCleilan, 7 Gill & J. 441, holding a judgment of a sister State was simple
contract debt and not entitled to priority it had in State where rendered;
Besley v. Palmer, 1 Hill, 484, holding a judgment of sister State had same
effect in extinguishing demand as domestic judgment; Bank of United
States V. Bank of Baltimore, 7 Gill, 435, holding that assumpsit cannot be
maintained on original demand; Citizens' Bk. v. Hancock, 35 La. Ann.
44, to point that cause of action is merged in judgment ; Baxley v. Linah,
16 Pa. St. 248, 56 Am. Dec. 496, holding judgment to be conclusive of sub-
ject matter and merger of original cause of action ; Wyman v. Mitchell, 1
Cow. 319, 320, to point as to the right to maintain assumpsit on judgment ;
Knapp V. Knapp, 59 Fed. 643, holding an action will lie in Federal court
upon decree of divorce of a State court for alimony; McKim v. Odam, 12
Me. 96^ 110, holding that debt will lie on decree of court of chancery of an-
other State for payment of money only; Williams v, Preston, 3 J. J.
M&T8h, 604, 20 Am. Dec. 184 ; Tenney v. Townsend, 9 Blatchf . 277, Fed. Cas.
^832^ holding that declaration need not aver that court had jurisdiction ;
S^ftantian v. Morton, 31 Ga. 45, holding such judgment does not preclude
p/eading any special matter in avoidance of judgment ; Carter v. Wilson, 1
p^- & B, 365, holding only proper plea is nul tiel record; Jackson v, Baxter,
^Ind. 44^ where nul tiel record was pleaded to declaration setting out judg-
^'^^^'^t and statute ; Hunt v. Mayfield, 2 Stew. 128, 129, holding special mat-
ters of defense must be specially pleaded; Keith v. Estill, 9 Port. 671,
molding statute of limitations was not good plea in bar to debt on judg-
7 Cr. 481-487 NOTES ON U. S. REPORTS. 682
ment; Napier v. Oidiei'e, 1 Spear Eq. 229, 40 Am. Dec. 615, where court
said that pleas in suits on judgments are lef^to be prescribed by States;
Dunlap V. Waldo, 6 N. H. 453, where court considered the effect' to be given
to seal to record from sister State; Lincoln v. Tower, 2 McLean, 478, 480,
Fed. Cas. 8355, holding record imports absolute verity and cannot be
traversed; Taylor v. Carpenter, 2 Wood. & M. 4, Fed. Cas. 13,785, holding
document attested by clerk under seal with certificate of judge and jcalled
an exemplified copy was competent evidence *of judgment described; Hamp*
ton V. McConnell, 3 Wheat. 235, 4 L. Ed. 879, following rule; D'Arcy v.
Ketchum, 11 How. 175, 176, 13 L. Ed. 653, where judgment was given
against two partners, one of whom was nonresident; Chicago etc. R. R.
Co. V. Wiggins Ferry Co., 119 U. S. 622, 30 L. Ed. 522, 7 Sup. Ct. 402, to
point that public acts of every State shall be g^ven same effect as they
hav^by law and usage at home; Joice v. Scales, 18 Ga. 727, to point that
provision requiring full faith is referable to such records as pleadings and
evidence ; Mervin v. Kumbel, 23 Wend. 303, debt on judgment against joint
debtors, only one of whom was served; Merritt v. American Steel Barge
Co., 75 Fed. 818, 40 U. S. App. 127, considering whether question as to
whether full faith and credit had been given was constitutional question ;
Crapo V. Kelly, 16 Wall. 619, 21 L. Ed. 434, holding that overruling of
plea gave Federal court authority over question; Pelton v. Platner, 13
Ohio, 217, to point that foreign judgments in rem in regard to i>er8onalty
are conclusive; Williams v. Preston, 3 J. J. Marsh, 601, 80 Am. Dee. 181,
to point that foreign judgment is only prima facie evidence where suit is
brought upon it ; Fisher v. Fielding, 67 Conn. 116^ 34 Atl. 719, to point that
the common-law doctrine as to effect of foreign judgments has been gen-
erally adopted; Hilton v. Guyot, 159 U. S. 215, 217, 40 L. Ed. 126, 127, 16
Sup. Ct. 163, 164, holding judgment for money in foreign countiy is prima
facie and not conclusive evidence as to merits.
Distinguished in De Vail v. De Vail, 57 Or. 134, 109 Pao. 758, memoran-
dum of sister State judgment cannot, by being recorded under lien docket
in Oregon, become encumbrance on realty therein or authorize execution
based on such entry; Commonwealth v. Green, 17 Mass. 546, holding con-
viction in one State of an infamous crime does not make defendant incom-
petent as witness in another State; Blackman v. Wright, 96 Iowa, 551,
65 N. W. 846, holding judgment in New York setting aside deed of land
in Iowa to be void, for want of jurisdiction ; Hyatt v. McBurney, 18 S. C.
210, where court considered as to whether judgment was res judicata;
Cameron v. Wurtz, 4 AfeCord (S. C), 280, holding that judgment <u sister
State ranks only as simple contract, in marshaling assets ; Hall v. Williams,
10 Me. 286, 287, where court said that judgment erroneously entered up
against one could have no binding efiScacy ; discussed and its doctrine held
to be limited to cases where the court had jurisdiction in the following
cases: McElmoyle v. Cohen, 13 Pet. 326, 10 L. Ed. 184, where statute of
limitations was pleaded to an action on judgment of sister Stat^; FuUerton
V. Horton, 11 Vt. 426, saying principal case did not cover case where court
was without jurisdiction ; Pritchett v. Clark, 3 Harr, 247, 525, 526, holding
that full faith and credit are given when it appears from record that court
583 MILLS V. DURYEE. 7 Cr. 481-487
a
had jurisdiction; Mitchell v. Ferris, 5 JEoust. 38, 39, holding that, notwith-
standing the Constitution and statutes, jurisdiction may he contradicted,
inqnired into, and disproved; Harding v. Alden, 9 Me. 149, 23 Am. Dec.
554, holding judgment against party not amenable to its jurisdiction is
entitled to no credit; Starbuck v. Murray, 5 Wend. 155, 21 AnL Dec. 175,
holding judgment could be e?camined to see if court had jurisdiction;
Shumway v. Stillman, 4 Cow. 294, 295, 15 Am. Dec. 375, 376, and Lucas
V. Bank of Darien, 2 Stew. 315, both holding judgment may be avoided by
showing want of jurisdiction; Eaton v. Hasty, 6 Neb. 426, 29 Am. Bep.
367, holding that judgment may be impeached for fraud or want of juris-
diction; Sallee v. Qayes, 3 Mo. 118, holding judgment rendered without
notice is not entitled to full faith and credit; Crone v. Dawson, J.9 Mo.
App. 219, where court held that plea of nil debet will allow defendant to
show that' the court had no jurisdiction; Marx v. Fore, 51 Mo. 76, 77,
11 Am. Bep. 435, and Glcason v. Dodd, 4 Met. (Mass.) 336, both holding
that one could impeach by proof that he had no legal notice of the suit
and did not appear; Miller v. Miller, 1 Bail. 248, holding action would not
lie on judgment against defendant not within State and who had not
appeared; Shumway v. Stillman, 6 Wend. 451, holding that if record set
forth that defendant did appear by attorney, the defendaofc may disprove
it; Wood V. Augustins, 70 Vt. 639, 640, 41 Atl. 584, examining principal
case at length, declaring it modified by Thompson v. Whitman, 18 Wall.
457, 21 L. Ed. 899, and holding it competent to impeach judgment of
sister State by showing that defendant not served, not an inhabitant of the
State, and his appearance by attorney unauthorized; Carleton v. Rickford,
13 Qray, 594, 74 Am. Dec. 654, holding return of officer, that he made per-
sonal service on defendant, may be contradicted by parol ; Rape v. Heaton,
9 Wisr 336, 76 Am. Dec. 274, holding want of jurisdiction may be shown
where record recites the jurisdictional facts ; Ritchie v. Carpenter, 2 Wash.
523, 26 Am. St. Rep. 886, 28 Pac. 384, and Aultman v. Mills, 9 Wash. 69,
70, 36 Pac. 1046, 1047, both holding that want of jurisdiction may be shown
even to extent of contradicting express recitals in record; Leith v. Leith,
39 N. H. 41, holding that question of residence in another State is open
when divorce is granted in sister State, although record of proceedings
is in due form ; Iglehart v. Moore, 16 Ark. 54, 55, holding that nothing less
than actual notice or a waiver of it could give validity to judgment against
nonresident; Borden v. Fitch, 15 Johns. 143, 8 Am. Dec. 228, holding that
judgment of divorce in another State without jurisdiction would not be
rec(^ized ; Anderson v. Anderson, 8 Ohio, 109, 110, holding that plea that
jndgnient was obtained by fraud is not available; Boston India Rubber
Factory v. Hoit,'14 Vt. 98, holding assumpsit would not lie upon judg-
ment of sister State, but declaration must be in debt; Thompson v. Whit-
!»an, 18 Wall. 463, 464, 21 L. Ed. 900, court saying it was not intended
w principal case to exclude pleas of avoidance and satisfaction ; Hazzard
^» Nottingham, Tapp. 116, 119, 121, 122, 123, holding judgment of sister
S)\.^te to be foreign judgment and only prima facie evidence.
Effects of judgments of other States. Notes, 2 Am. Dec. 42, 43, 44;
103 Am. 8t. Bep. 305, 307, 323.
7 Cr. 481-487 NOTES ON U. & REPORTS. 684
Conclusiveness of sister State judgment. Note, 26 Am. Bep. 30.
Judgment by unauthorized appearance of attorney. Note, 75 Am. Dec.
149.
Effect of judgment on unauthorized appearance. Note, 21 L. R. A.
848, 858, 860.
Right to plead fraud as defense in action on foreign judgment. Note,
Ann. Gas. 1914D, 1004.
Right to resist judgment of sister State on ground of fraud. Note,
32 L. R. A. (N. S.) 907, 909, 915, 918, 932.
Nil debet cannot be pleaded to an action on a judgnient of a sister State.
Approved in Arrington v. Arrington, 127 N. C. 194, 37 S. E. 213, holding
in suit on foreign decree granting alimony defendant cannot plead to
merits of original suit; Levin v. Gladstein, 142 N. C. 485, 486, 487, 115
Am. St. Rep. 747, 32 L. R. A. (N. S.) 905, 55 S. E. 373, holding sister State
judgment void on ground of fraud in its procurement; Andrews v. Mont-
gomery, 19 Johns. 163, 164, 10 Am. Dec. 213, 214, Oulick v. Loder, 13
N. J. L. 70, 23 Am. Dec. 712, both holding judgment was conclusive evi-
dence of debt ; Builer v. Sidell, 43 Fed. 117, holding that paragraph of the
answer which merely denied indebtedness should be stricken out; Ridley
V. Buchanan, 2 Swan, 560, holding that order compelling an election be-
tween pleas of nil debet and nul tiel record was error; Amory v. Amory,
3 Biss. 271, Fed. Cas. 334, holding it is duty of Circuit Court to give
full faith to the judgments of State courts; in Marr ▼. Wetzel, 3 Colo.
5; Lucas v. Bank of Darien, 2 Stew. 308, and Kopf v. Huckins, 11 Tex.
Civ. App. 88, 32 S. W. 42, all holding that it is still open to party to deny
jurisdiction; Holt v. AUoway, 2 Blackf. 109, holding defendant may show
fraud or want of jurisdiction; Lapham v. Briggs, 27 Vt. 32, holding that
question of jurisdiction is conclusively determined by its record, construed
according to law of its own State; Davis v. Lane, 2 Ind. 549, saying prin-
cipal case had been construed not to extend to pleas of payment, release,
etc.; Ea^hman v. Jones, 2 Yerg. 485, 487, holding judgment against non-
resident upon an attachment wrbhout process or appearance is no evidence
of debt; Jacquette v. Hugunon, 2 McLean, 129, Fed. Cas. 7169, holding
that judgment is conclusive of subject matter, and no plea can be filed which
contradicts record; Westerwelt v. Lewis, 2 McLean, 513, Fed. Cits. 17,446,
holding that record when duly authenticated was conclusive; Warren Mfg.
Co. V. Aetna Ins. Co., 2 Paine, 508, Fed. Cas. 17,206, holding that whatever
plea would be good where rendered would be good and no other; Breugle
V. McClellan, 7 Gill & J. 440, 441, court saying the "full faith and credit"
has never been carried further than to give judgment sanie effect it had in
State where rendered ;- Maxwell v. Stewart, 22 Wall. 81, 22 L. Ed. 666, and
Allison V. Chapman, 19 Fed. 488, both holding that a plea of fraud was
no defense; Kimmel v. Shultz, 1 III. 170, where judgment was obtained
against joint debtors; Wells v. Edmison, 4 Dak. 51, 22 N. W. 499, and
Williams v. Guignard, 2 How. (Miss.) 723, where discharge in insolvency
was pleaded; Evans v. Tatem, 9 Serg. & R. 260, 11 Am. Dec. 720, holding
that in an action on decree of equity pleas of nil debet and nul tiel record
685 MILLS V. DURYEE. 7 Cr. 481-487
are bad on general demorrer; Coleman v. Waters, 13 W. Va. 307, holding
judgment by confession, by virtue of warrant of attorney, was entitled to
fnll faith and credit; Black v. Smith, 13 W. Va. 792, where court con-
sidered how far judgment would be inquired into; Indianapolis etc. R. W.
Co. v. Risley, 50 Ind. 62, and Buchanan v. Port, 5 Ind. 265, both following
rale; Hindman v. Mackall, 3 G. Greene, 173, and Judkins v. Union Mut.
F. L Co., 37 N. H. 475, 476, 477, 479, 481, holding that under plea of nil
debet the defendant may show want of jurisdiction and fraud; Drax>er v.
Gorman, 8 Leigh, 631, 638, 639, 641, where, in an action on a judgment of
District of (Columbia, plea of nil debet was received and the ;p\e& that
money was won at gambling was rejected; Morehead v. Grisham, 13 Ark.
435, holding judgment was conclusive and that debt and not assumpsit was
proper form of action.
In an action on Judgment of sitter State, exempllflcation of record is
dedsive; original need not be produced.
Approved in Crippen v. Laighton, 69 K. H. 548, 76 Am. St. Rep. 194, 44
Atl. 540, holding courts of one State are not bound to enforce statutes of
another State with regard to stockholder's liability; Bennett v. Bennett,
63 N. J. Eq. 308, 49 Atl. 502, holding that foreign judgment is of no efScacy
in sister State unless it is there made a judgment ; Trowbridge v. Spinning,
23 Wash. 60, 62 Pac. 128, taking judicial notice in suit to recover alimony
adjudged in Missouri of certain Missouri divorce law; Tumbull v. Payson,
95 U. S. 422, 24 L. Ed. 4S9, where court said that attestation of clerk with
seal of court annexed is sufficient authentication ; Emery v. Berry, 28 N. H.
486, 61 Am. Dec. 626, where court considered how laws of sister State were
to be proved.
Judgments may be complete and perfect and have full effect independent
of the Tight to iBsue executlozL
Approved in Michigan Trust Co. v. Ferry, 228 U. S. 356, 57 L. Ed. 875,
33 Sup. Ct. 550, upholding judgment for devastavit rendered against admin-
istrator after he became incompetent and removed to another State; New
York Security & T. Co. v. Equitable Mtg. Co., 71 Fed. 560, application
by creditor in Circuit Court for Missouri to have his claim determined,
although original proceedings were in New York; Bank of United States
V. Merchants' Bank of Baltimore, 7 Gill, 423, to point that execution can-
not issue on a judgment of sister State.
Judgments of sister States are conclusive in the District of Columbia.
Approved in Thompson v. Thompson, 226 U. S. 561, 57 L. Ed. 351, 33
Sup. Ct. 129, following rule.
Effect of foreign divorce on dower rights. Note, Ann. Gas. 1913E, 558.
Domicile of wife for purpose of divorce suit. Note, 16 L. B. A. 498.
Miscellaneous. Cited in Raher v. Raher, 150 Iowa, 521, Ann. Gas. 1912D,
680, 35 L. B. A. (N. S.) 292, 129 N. W. 497, to point that dissenting opinion
in principal case holds that judgment is not binding on defendants not
owing allegiance or not found within limits of States where judgment is
\
7 Cr. 487-500 NOTES ON U. S. REPORTS. 686
y
fl
rendered; Tiedemann v. Tiedemann, 36 Nev. 506, 137 Fao. 828, discnssing
but not deciding whether finding in decree as to residence of plaintiff in
divorce was conclusive or merely evidence as to that fact ; Crippen v. Laigh-
ton, 69 N. H. 556, 76 Am. St. Bep. 203, 44 Atl. 544, arguendo.
7 Or. 487-496, 3 L. Ed. 414, OIJVEB ▼. MABYI.AND INS. CO.
Idle waste of time, after vessel lias comI^leted purposes for wliicli sbe
entered port Is deviation dlsclUurglng underwriters.
Approved in Globe Navigation Co. v. Russ Lumber & Mill Co., 167 Fed-
230, holding taking another vessel in tow causing delay was deviation;
Natchez Ins. Co. v. Stanton, 2 Smedes & M. 376, 41 Am. Dec. 595, holding
that taking of brig in tow amounted to deviation; Riggin v. Patapsco Ins.
Co., 7 Har. & J. 291, 16 Am. Dec. 308, holding fear of capture at port of
destination founded on mere rumors will not justify deviation.
Distinguished in Columbian Ins. Co. v. Catlett, 12 Wheat. 390, 6 L. Ed.
668, where the court said that whether delay constituted a deviation de-
pended upon usage of trade.
Detention for reasonable time for purpose of adventure insured as a
deviation. Note, 9 E. B. 0. 4G0.
Unavoidable necessity as excuse for deviation. Note, 9 £. B. 0. 418.
Wliat is unreasonable delay discharging underwriters.
Cited in Hostetter v. Park, 137 U. S. 40, 34 L. Ed. 572, 11 Sup. Ct. 4, on
the point that touching at port out of course is no deviation where such
departure was within the usage of trade; Constable v. National S. S. Co.,
154 U. S. 66, 38 L. Ed. 911, 14 Sup. Ct. 1068, holding that berthing of ship
at pier other than her own was not in legal effect deviation; Hostetter v.
Gray, 11 Fed. 181, holding that after express provisions of contract, usage
of trade was predominating test as to deviation ; Thatcher v. McCuUoh, 01c.
370, Fed. Cas. 13,862, where it was known usage of trade and navigation
to touch at this intermediate port.
Danger of capture Justifying vessel remaining in port must be obvious
and immediate in reference to situation of s^ip at particular time.
Cited in Crosby v. Fitch, 12 Conn. 421, 81 Am. Dec. 749, to point that
pretended danger will not justify any unusual or hazardous experiment.
Miscellaneous. Cited to point that if there was negligence, one is liable
for loss, although immediate cause of loss was an act of God, in Morgan v.
Dibble, 29 Tex. 120, 94 Am. Dec. 268.
7 Or. 496-500, 3 Ii. Ed. 417, BBIO OABOLINE ▼. UNITED STATES.
Xdbel for a forfeiture must aver specially all the material facts con-
stituting the offense.
Cited in United States v. Huckabee, 16 Wall. 431, 21 L. Ed. 463, court
saying that information should propound in distinct articles causes of for-
feiture and should aver same are contrary to statute; United States v.
Weed, 5 Wall. 69, 18 L. Ed. 533, where court said claimant had right to be
\
687 BRIG CAROLINE v. UNITED STATES. 7 Cr. 496-500
informed by libel of specific act ; United States t. One Distillery, 4 Biss.
27y Fed. Cas. 15,929, where there was information under internal revenue
law claiming forfeiture of distillery; United States v. Mann, 95 U. S. 586,
24 L. Ed. 533, to point that commission of statutory offense must be accu-
rately and clearly alleged; United States v. Fifteen Barrels of Distilled
Spirits, 51 Fed. 421, where, information for forfeiture of certain spirits
was held bad for indefiniteness ; The Confiscation Cases, 20 Wall. 106, 22
L Ed. 323, where there was an information under confiscation act of 1862 ;
The Emily and The Caroline, 9 Wheat. 387, 6 L. Ed. 117, holding libel of
information does not require all technical provisions of an indictment at
common law; State v. Perry, Wright, 671, holding that object of pleading
is brevity and certainty, and whatever attains to that is sufficient; Com-
monwealth V. King, 1 Whart. 459, on the point that penalty does not arise
on an offer to do the act where it is consequent on an act completed*
Ubel for forfeiture, wblcli Is defective, may be amended.
Approved in Graham v. Oregon R. etc. Co., 134 Fed. 693, where excep-
tions to libel in admiralty for want of jurisdiction are sustained, amend-
ment may be allowed ; Davis v. Adams, 102 Fed. 525, allowing libel for. tort
to be amended to conform to evidence; McDonald v. Nebraska, 101 Fed.
177, permitting petition in suit by State treasurer to be amended by sub-
stitution of State as plaintiff; Van Doren v. Pennsylvania R. Co., 93 Fed.
272, allowing amendment changing capacity in which suit is brought so as
to conform to statute; The Martha, 1 Blatchf. & H. 166, Fed. Cas. 9144,
where court said that courts of admiralty dealt liberally with suitors in
matters of practice; Anonjrmous, 1 Gall. 26, Fed. Cas. 444, holding that
such amendments are not allowed as of course ; The Edward, 1 Wheat. 264,
4 L Ed. 87, holding that in revenue or instance courts, Circuit Court may,
vpoa appeal, allow introduction of new all^ations by way of amendment;
Merriam v. Langdon, 10 Conn. 472, holding qui tam information was amend-
able after time limited for presenting new information has elapsed; Gar-
land V. Davis, 4 How. 154, 11 L. Ed. 918, where the court abstained from
awarding repleader but remanded case so that pleadings might be amended ;
The Ma1bey,|lO Wall. 420, 19 L. Ed. 963, to point that there can be no sub-
stantial am£idmefit in Supreme Court, but cause will be remanded with
directions to amend; The Sarah, 8 Wheat. 397, 5 L. Ed. 645, where a bill
charged a seizure on land where in fact it was made on water; Bieren v.
Steamboat Triumph, 2 Ala. 742, to point that admiralty never sends party
out of court so long as proceedings can be perfected by amendment ; Rich-
mond V. The New Bedford Copper Co., 2 Low. 317, Fed. Cas. 11,800, where
court said it had been held that action can never fail for want of proper
alleviations, if merits appear; dissenting opinion in Cleveland Ins. Co. v.
Globe Ins. Co., 98 U. S. 376, 379, 25 L. Ed. 204. 205, and Stickney v. ^Vilt,
11 Bank. Reg. 107, s. c, 23 Wall. 164, 28 L. Ed. 54, both as to practice
where court below had no jurisdiction in any form of proceeding.
Miscellaneous. Cited in Baker v. Biddle, 1 Bald. 406, Fed. Cas. 764, to
point that the apx)ellate jurisdiction of Circuit Court is subject to control
of Congress ; Robinson v. Hook, 4 Mason, 153^ Fed. Cas. 11,956, where court
considered rights of informers.
7 Cr. 600-506 NOTES ON U. S. REPOETS. 588
7 Or. 600-504, 3 Ii. Ed. 410, BIOGS T. LINDSAY.
One aathorlslii^ another to draw upon him is liable for amount of draf t8»
protest and coits, if he fails to pay them.
Approved in Pavenstedt v. New York life Ins. Co., 203 N. Y. 104, Ann^
Gas. I913A, 805, 96 N. E. 109, holding damages in such ease on foreigrn
bill may include "re-exchange" charges; Greene v. Goddard, 9 Met. 223,
holding that one requesting another to draw bills of exchange, undertook
and was liable to indemnify him for so doing; Bowen v. Stoddard, 10 Met.
380, holding acceptor not liable for damages but only for amount of bill,
with interest and costs; Russell v. Wiggin, 2 Story, 242, Fed. Cas. 12,165,
where action was brought against banker for not paying drafts drawn
under letter of credit; Pendleton v. Knickerbocker L. I. Co., 7 Fed. 172,
to point that failure to accept and pay renders one liable in damages;
Ulster County Bank v. McFarlan, 3 Denio, 557, on the point that proniise
to accept should describe the bill so it could not be mistaken.
Damages recoverable by holder of dishonored foreign bill of exchange.
Note, Ann. Oas. 191SA, 811.
Acceptor's duty to indemnify drawer on return of bill dishonored.
Note, 4 £. B. 0. 576.
Where letter written by codefendant to plaintiif admitted, evidence to
show that writer had, at another time, given different account of same trans-
action is admissible.
Cited in Blossom v. Barrett, 37 N. Y. 438, 97 Am. Dec 750, to point that
one voluntarily accepting immaterial issue and giving evidence upon it can-
not complain if court allowed other side to answer.
Miscellaneous. C^ed in Chesapeake' etc. Co. v. Ejiapp, 9 Pet. 567^ 0
L. Ed. 2S2, holding that if special contract is open, remedy is on eontract,
but if it is ended, assumpsit lies.
7 Or. 604-506, 3 Xb Ed. 420, McINTIBE ▼. WOOD.
Power of Circuit Courts to issue mandamus is confined to cases in which
it may be necessary to exercise of Jurisdiction.
Approved in Bumham v. Fields, 157 Fed. 247, holding Circuit Court
could not issue mandamus as original remedy; Barber Asphalt etc. Co. v.
Morris, 132 Fed. 955, 67 L.. R. A. 761, 66 C. C. A. 55, upholding jurisdiction
of Court of Appeals to issue mandamus to compel Circuit Court to vacate
order staying proceedings in State court ; North Carolina Corp. Commission
V. Southern Ry. Co., 151 N. C. 454, 66 S. £. 431, holding original mandamus
proceeding not removable to Federal court ; Robertson v. State Land Board,
42 Or. 188, 70 Pac. 616, refusing to review decision of State land board
refusing to cancel contract for sale of State land ; McCullough v. Hicks, 6^4
S. C. 545, 41 S. E. 762, holding State court cannot enjoin Federal man-
damus ancillary to original proceedings; dissenting opinion in Tampa
Waterworks Co. v. Tampa, 199 U. S. 247, 50 L. Ed. 175, 26 Sup. Ct. 23,
majority upholding power of municipality of Florida to reduce water rates ;
Gares v. Northwestern etc. Assn., 55 Fed. 210, holding that Circuit Courts
589 McINTIRE v. WOOD. 7 Cr. 504-606
•
eoald not issue mandamas even when, in State where court sits, mandamus
was reg;arded as civil action ; Smith v. Jackson ex dem. Allyn, 1 Paine, 455,
Fed. Cas. 13,064, holding that mandamus will not lie to District Court to
compel it to expunge amendments improperly made in the record; United
States V. New Bedford Bridge Co., 1 Wood. & M. 438, Fed. Cas. 15,867,
holding that Circuit Court has such jurisdiction only as is conferred upon
it; Ladd v. Tudor, 3 Wood. & M. 332, Fed. Cas. 7975, where question was
whether a Federal court could issue writ to State court; In re Forsyth,
78 Fed. 301, where court refused to issue mandamus on petition of re-
eeiver in State court as against clerk of District Court ; United States v.
Judges etc., 85> Fed. 179 , s. c. In re Harless, 56 U. S. App. 36, rule applies
to Circuit Court of Appeali, where there was\an application to compel
judges to admit oi^e to bail; Ex parte Van Orden, 3 Blatchf. 169, Fed.
Cas. 16,870, to point that Federal courts cannot issue mandamus to any
magistrate other than to those in the District of Columbia ; Ex parte Crane,
5 Pet. 206, 8 L. Ed. 98, holding that Supreme Court could compel circuit
judge to sign bill of exceptions ; Fisk v. Union Pac. Ry. Co., 6 Blatchf. 396,
397, Fed. Cas. 4827, holding that mandamus was not necessary to enforce
tffirmative action to remove cause from State to Federal court; State v.
Lake Erie^ W. Ry. Co., 85 Fed. 3, holding that an application for a
mandamus begun in State court is not removable to Federal court; Rosen-
baum V. Board of Supervisors, 11 Sawy. 621, 28 Fed. 224, 120 U. S. 453,
454, 455, 30 L. Ed. 745, 7 Sup. Ct. 634, 635, holding that jurisdiction could
not be conferred by commencing proceedings in State court and remov-
ing them to Circuit Court ; United States v. Plumer, 3 Cliff. 61, Fed. Cas.
16,056, holding that writ of error coram nobis does not, lie to Circuit Court
in criminal ease; Denton v. Baker, 79 Fed. 194, 48 U. S. App. 44, holding
that holder of judgment against insolvent national bank on claim rejected
by receiver cannot resort to mandamus ; Lyell v. Supervisors of Lapeer Co.,
6 McLean, 456, Fed. Cas. 8618, to point that Circuit Court cannot issue
mandamus to State officer ; Conmiissioner v. Smith, 5 Tex. 478, holding the
wfit will lie to heads of departments where duty is plain and there is no
discretion; Van Antwerp v. Hulburd, 7 Blatchf. 433, Fed. Cas. 16,826,
holding that Circuit Court could not compel an officer to perform 'minis-
terial duty; Hoover v. McChesney, 81 Fed. 482, to point that courts cannot
interfere with conduct of an officer except where duties are ministerial;
Enterprise Sav. Assn. v. Zumstein, 67 Fed. 1007, 37 U. S. App. 71, to
point that discretionary acts will not be controlled; Litchfield v. The Reg-
ister ft Receiver^ Woolw. 312, Fed. Cas. 8388, holding that court will not
interfere by injunction with political or discretionary power; State ex rel.
Bayha v. Phillips, 97 Mo. 346, 10 S. W. 861, holding that mandamus would
lie to correct an arbitrary exercise of discretion ; Meyer v. Carolan, 9 Tex.
253, where question was whether mandamus would lie to clerk of District
Court to compel the approval of appeal bond; Bledsoe v. International
R. R. Co., 40 Tex. 557, where there was an application to compel counter-
signing and registering of bonds by controller ; Kuechler v. Wright, 40 Tex.
660, 665, holding ministerial duty of commissioner of general land office '
7 Cr; 504-50P NOTES ON U; S. REPORTS. 590
would not be eu forced by mandamus; Lewis v. Lewis, 9 Ma. (185) » 186,
43 Am. Dec. 541, to point that State courts cannot control officers of gen-
eral go-v^ernment in disposal of the public domain; Gaines v. Thompson, 7
Wall. 349, 19 L. Ed. 64, holding that canceling an entry will not be interfered
with; The Secretary v. McGarratian, 9 Wall. 311, 19 L. Ed. 683, holdinjr
mandamus would not lie to compel issuance of a patent; dissentiii.^r
opinion in Louisiana v. j'umcl, 107 U. S. 762, 27 L. Ed. 466, 2 Sup. Ct.
170, 171, where mandamus was sought to compel an auditor and State
treasurer to apply funds to retirement of bonds; Riggs v. Johnson County,
6 Wall. 189, 18 L. Ed. 774, 777, Bath County v. Amy, 13 WalL 240,
20 L. Ed. 541, Heine v. The Levee Commissioners, 19 Wall. 660, 22 L. Ed.
226, Stryker v. Board of Commissioners of Grand County, 77 Fed. 574, 40
U. S. App. 583, all proceedings to compel levy of tax ; Decatur ▼. Paulding,
14 Pet. 601, 10 L. Ed. 610, where court refused to issue mandamus against
Secretary of the Navy; United States v. Pearson, 32 Fed. 310, 24 Blatehf.
454, holding that writ could not issue against postmaster to compel him to
transmit mail as third and not as second-class matter; McClung v. Silli-
man, 6 Wheat. 599, 604, 5 L. Ed. 340, 341, holding that State court cannot
issue mandamus to an officer of United States; United States v. Schors^
102 U. S. 393, 26 L. Ed. 170, holding that Supreme Court of District of
Columbia could issue mandamus as an original process; State v. Curtis, 35
Conn. 383, 95 Am. Dec. 268, where court discussed the right of Federal
courts to issue writs ; Ex parte Hill v. Confederate States, 38 Ala. 485, where
question was as to whether State courts could discharge enrolled conscripts
from the custody of Confederate States officers; American Constr. Co. v.
Jacksonville etc. Ry. Co., 148 U. S. 380, 37 L. Ed. 490, 13 Sup. Ct. 762, to
point that certiorari is used as an auxiliary process only.
Explained in Kendall v. United States, 5 Cr. C. C. 172, 173, 174, 183, 184,
185, 187, 242, 247, 256, Fed. Cas. 15,517, s. c, 12 Pet. 615, 616, 617, 618, 624,
626, 627, 633, 642, 646, 9 L. Ed. 1217, 1218, 1221, 1222, 1224, 1228, 1229,
dissenting opinion, reported in 13 Pet. 609, 10 L. Ed. 318, holding that
Circuit Court could issue writ to compel postmaster-general to perform a
ministerial duty, i
Qualiiied in In re Blake etc., 175 U. S. 119, 44 L. Ed. 96, 20 Sup. Ct. 44,
holding writ of error and not mandamus is remedy for failure of lower
court to comply with mandate.
Distinguished in United States v. Virginia-Carolina Chemical Co., 163
Fed. 67, holding on indictment for conspiracy in restraint of trade Circuit
Court could issue process to bring before it defendant corporations citizens
of State but not found therein; McDaid v. Territory, 1 Okl. 97, 30 Pac.
440, territorial court may issue mandamus to compel townsite trustees to
issue deed to contestant they have decided is entitled to it; King v. Mc-
Lean Asylum, 64 Fed. 343, 21 U. S. App. 481, distinguishing writs of
habeas corpus from mandamus.
Circuit Courts liave such powers only as are delegated to them b^ statute.
Approved in Matter of Moore, 209 U. S. 509, 14 Ann. Gas. 1164, 52 L. Ed.
912, 28 Sup. Ct. 706, holding either party could waive objection that suit
591 UVINGgTON v. MAEYLAND INS. CO. 7 Cr. 506~5d8
was not brought in or removed to particular Federal court provided by
statute; Ex parte Wisner, 203 U. S. 465, 61 L. Ed, 266, 27 Sup. Ct. 150,
holding Circuit Court had no jurisdiction over suit by citizen of another
State against nonresident defendant citizen of State other th^n that of
plaintiff; Kentucky v. Powers, 201 U. S. 24, 50 L. Ed, 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 re-
move criminal prosecution to'Federal courts; Stevenson v. Fain, 195 U. S.
167, 49 L. Ed. 148, 25 Sup. Ct. 6, Circuit Court of Appeals has no jurisdic-
tion over controversy between claimants under grants from different States
where diverse citizenship did not exist; Mahopoulus v. Chicago etc. Ry.
Co., 167 Fed. 167, holding action by nonresident alien against corporation
in State other than that of defendant's incorporation but in which it was
subject .to service not removable to Federal Court except by consent;
Kettelhake v. American Car & Foundry Co., 243 Mo. 417, 147 S. W. 480,
holding where jurisdiction was founded on question of validity of statute,
claim must involve substantial dispute to give jurisdiction to Circuit Court ;
Case of the Sewing Machines Cos., 18 Wall. 577, 21 L. Ed. 919, and Sheldon
V. Sill, 8 How. 449, 12 L. Ed. 1151, both holding that court created by stat-
nte can have no jurisdiction but such as statute confers ; Harrison v. Had-
ley, 2 Dill. 234, Fed. Cas. 6137, holding that there must be an act of Con-
gress expressly conferring jurisdiction; United States v. New Bedford
Bridge Co., 1 Wood. & M. 432, 435, Fed. Cas. 15,867, to point that acts
of Congress as well as Constitution must generally unite to give jurisdic-
tion to particular court ; United States v. Shaw, 39 Fed. 433, holding that
limitation on amount necessary to give jurisdiction does not apply to suits
*Q which United States is party ; dissenting opinion in Ex parte Crane, 5
^et. 202, 8 L. Ed. 97, holding that Supreme Court could issue mandamus to
compel circuit judge to sign bill of exceptions; United States v. Eckford,
^ ^all. 488, 18 L. Ed. 92, holding that jurisdiction could not be exercised
^ Circuit Court unless plaintiff could bring his case within some act of
Y^n^ess; The Assessors v. Osborne, 9 Wall. 575, 19 L. Ed. 751, holding
If *' ^here jurisdiction depends wholly on statute, suits brought during
12 4^«tence fall with its repeal ; In re Heath, 144 U. S. 95, 86 L. Ed. 300,
jjj^ ^'*X>- Ct. 616, holding Supreme Court has no appellate jurisdiction over
. ^*^«nts of Supreme Court of District of Columbia in criminal eases;
^^^\i Carolina v. Trustees of University, 1 Hughes, 137, Fed. Cas. 10,318,
^a. State V. Trustees of University, 65 N. C. 718, both holding that Cir-
^t^t Courts have no jurisdiction of a case in which State i^ plaintiff against
its own citizen^; In re Cilley, 58 Fed. 978, where there was petition for
removal to Federal court of a probate appeal.
Removal of causes. Note, 12 Am. Bep. 547.
7 Or. 506^48, 3 K Ed. 421, LIYIKGSTON T. MABYIaAND INS. CO.
False representation, though no breach of the contract, if material, avoids
the policy on the ground of frand.
Cited in Marshall v. Columbian M. F. I. Co., 27 N. H. 166, holding that,
in an application for fire insurance, whatever is material to risk should bo
7 Cr. 500-548 NOTES ON U. S. REPOBTS. 692
net forth correctly in application; Clark v. Manufacturers' Ins. Co., 8 How.
248, 12 L. Ed. 1066, where there was representation that no lamps were
used ; Caltaghan v. Atlantic Ins. Co., 1 Edw. Ch. 77, holding that assertion
of a material eircnmatance in an nnqualified manner, withont knowledge,
vitiates the policy.
Bepreientations and amblpiltles In apfrtleatton for Inniruiee.
Cited m Nieoll v. American Ins. Co., 3 Wood. & M. 536, Fed. Cm. 10,259,
to point that, if the representations are ambiguous, the defendant should
ask for explanations before taking tnsnrance; AUegre v. Maryland Ins.
Co., 2 Gill & J. 160, 20 Am. Dec. 429, holding that orders for insurance
mnat be liberally construed and with respect to the situation and circam-
stances of parties.
Invalidity of insurance on ship or goods for ill^»l voyage. Note, IS
E. B. 0. 562.
Ooncealment of papers li lireach of warranty. Bale dots not apply wbero
by usage of trade papers sbDold be on board.
Approved in Maritime Ins. Co. v. M. S. Dollar S. S. Co., 177 Fed. 131,
100 C. 0. A. 547, holding policy giving consent to run blockade necessarily
gave consent to carrying false clearance papers.
When foreign trader deemed resident.
Cited in Elbers v. United Ins. Co., 16 Johns. 134, to point that bona fide
settler is deemed to be a resident.
Paper wblcb expmtiy refers to another paper wltUn power of putjr
gives notice of contents of tbat otber i^per.
Approved in United States Trust Co. v. David, 36 App. D. C. 556, follow-
ing rule; Den v. McKnight, 11 N. J. L. 393, to point that one ia deemed
to have notice of faets of which he has means of knowledge.
Usage may be proved by parol, altbongb founded on law or edlcta of anotlier
coantry.
Cited in Drake v. Hudson, 7 Har. & 3. 408, where parol evidence of the
usages of customs officers at Havana was introduced.
Party bas right to direct and positive Instructions.
Approved in Richards v. United States, 175 Fed. 949, 99 C. C. A. 401,
instruction considered and held to be mere generality and properly refused ;
Kafahdin Pulp & Paper Co. v. Peltomaa, 156 Fed. 347, 84 C. C. A. 238,
approving instruction as to duty of employer to maintain safe appliances ;
Cornelius v. Cornelius, 233 Mo. 38, 135 S. W. 74, disapproving instructions
in suit for alienation of affections; Tonotey v. Metropolitan St. Ry. Co.,
129 Mo. App. 602, 107 S. W. 1092, disapproving instruction in personal
injury case not requiring defendant to have knowledge of defect causing
injury; Wren v. MetropoUtan St. Ry. Co., 125 Mo. App. 607, 102 S. W.
1078, holding direct and positive instruction on theory of defense improp-
erly i'cfused; dissenting opinion in Ware v. United States, 154 Fed. G92,
12 Ann. Caa. 233, 12 L. B. A. <H. S.) 1053, 64 C. C. A. 503, majority approv-
593 NOTES ON U. S. REPORTS. 7 Cr. 648-5C6
ing instructions j Campbell v. Campbell, 64 Wis. 98, 11 N. W. 468, holding
that refusal in slander of a proper instruction as to damages was error;
Cahn V. Rcid, 18 Mo. App. 136, holding one was entitled to instructions on
every le^\ phase of case justified by evidence ; Gray v. McDonald, 28 Mo.
-^Pp. 492, where court said principle governing should be substantially
stated in instructions ; Koontz v. Kaufman, 31 Mo. App. 420, holding that
P^y has right to direct and positive instructions; Rives v. McLosky, 5
Btew. & p. 337, holding that refusal of an instruction is error, although
^urt subsequently gives an instruction which, by inference, may lead to
«^ent of charge refused ; Taylor v. Hillyer, 3 Blackf . 435, 26 Am. Dec.
^^2, where evidence clearly showed that instruction asked was relevant;
W V. Rodgers, 19 Ala. 337, holding that chaige, if full and fair, is not
<^froiicoiis, although not in language requested; Colquitt v. Thomas, 8 Ga.
^f holding that where one requests a charge in presence of jury, and
*ODrt replies, "I will charge it," without an3rthing more, it is error; Blake
^' Smithy 3 Fed. Cas. 606, to point that misdirection affecting result is
S^and for setting aside verdict; Snyder v. Laframboise, Breese, 346, 12
m Dec. 190, holding that instructions should be positive and specific and
^'^e nothing to inference.
•Liability of marine insurer for losses arising out of war. NotOj 5
B. R. 0. 10, 22.
^' S4s^60, 3 L. Ed. 485, YOUNO T. QRUNDY.
^^en new contract bars right of action for nonperformance.
^istii:^guished in Hunt v. Martin, 2 Litt. (Ky.) 86, holding that debt con-
to -^ ^^ payee of note to payer after assignment of note is no ground
*^Joiji assignee recovering the amount. \
Afiso^llaneous. Cited in Whittemore v. Patten, 81 Fed. 528, but not in
^ ^^ ^^0^66, 3 L. Ed. 436, PALMBB T. ALLES.
'^x%:siiclpal regulationfl imposing restraints upon State officers In execution
0 P^oc^^^^ ^^ ^^ binding upon officers of United States.
^X>>:-oved in King v. Davis, 137 Fed, 241, Va. Code 1887, § 3566, relating
^ ^ ^i^ndens, has no application to Federal courts; Boyle v. Zacharie, 6
y ' ^*S9, 8 L. Ed. 536, holding that acts of Maryland, regulating proceed-
S^^ ^^^ injunctions and other matters, do not affect Federal courts; In re
^^^^^^^5Bn, 2 Curt. 493, Fed. Cas. 5083, where statute of Massachusetts,
^. ^^V^ing imprisonment for debt, was construed ; Duncan v. Darst, 1 How.
JS^^^ Xn L. Ed. 306, holding that x)er8on in custody under authority of Cir-
^^5^ ^ourt cannot be discharged by State officer under State insolvent law;
Q. Aer's Lessee v. Corwin, 5 Ohio, 404, 24 Am. Dec. 305, holding that judg-
^enis of Circuit Court attached as liens on adoption by that court of execu-
tions laws of State; Ex parte Boyd, 105 U. S. 661, 26 L. Ed. 1202, holding
that holder of Federal judgment might resort to proceedings supplementary
io execution; Lamson v. Mix, 14 Fed. Cas. 1056, holding that State laws
famish rule of decision in cases of jeommon law, but State law cannot en-
1—88
r Cr. 565-570 NOTES ON U. S. REPORTS. 694
lai^e subjects of chancery jurisdiction in Federal courts; United States
V. Humphreys, 3 Hughes, 205, Fed. Cas. 15,422, to point that conditiona or
exceptions in State laws do not limit rights conferred by the act of Con-
gress adopting State law; United States v, Tetlow, 2 Low, 161, Fed. Cas.
16,456, holding that process and forms of proceedings adopted by Con-
gress from State laws are binding on United States; ItfcNntt v. Bland, 2
How. 17, 11 L. Ed. 1G2, to point that discharge under State law not adopted
by Congress dooa not exonerate an officer; Springer v. Foster, 1 Story,
602, Fed. Cas. 13,265, to point that where Federal court adopts State
processes, change in State law does not affect Federal court unless adopted ;
The Antelope, 10 Wheat. 66, 6 L. Ed. 268, holding that act prohibiting sale
under execution for less than certain sum did not apply to Circuit Coart;
explained in Wayman v. Southard, 10 Wheat. 37, 38, 39, 40, 41, 6 L. Ed.
261, 262, holding that Stat£ taw regulating executions was not applicable
to Federal judgments unless expressly adopted.
Necesaitv of formal commitment to render Imprisonmeut valid. Note,
38 L. B. A. (N. S.) 611.
7 at. 566-570, 3 Zi. Ed. 440, TOTTNa T. VLA.CK.
Under nonassumpslt the defendant may elve in evidence anrtblng wblcli
■hows that no debt was due at the time the action was commenced, inclndlug
a formei jndxment.
Approved in Arkansas Grand Prairie Oil etc? Co. v. Davidson, 233 Fed.
644, holding mental incapacity to contract could be shown under pica of
nonassumpsit; Holford v. James, 136 Fed. 555, 69 C. C. A. 263, upholding
sufficiency of docket entries to support plea of res adjudicata; Hennequiii
V. Barney, 24 Fe* 582, Lampton v. Jones, 5 T. B. Mon. 236, Reynolds v.
Stausbury, 20 Ohio, 350, 55 Am. Dec. 461, Mutual Life Ins. Co. v. Harris, 97
U. S. 336, 24 L. Ed. 962, Eastman v. Cooper, 15 Pick. 286, 26 Am. Dec.
606, Arnold v. Paxton, 6 J. J. Marsh. 505, and Bartels v. Schell, 16 Fed.
343, all to point that foimer-judgment was admissible for defendant under
plea of general issue; Wood v. Jackson, 8 Wend. 22, 35; 22 Am. Itac 610,
holding judgment may be given in evidence with parol proof to ahow
grounds upon which it proceeds; Winne v. Elderkin, 2 Pinn. 231, 62 Am.
Dec. 161, holding that evidence of award in favor of defendant is admis-
sible in assumpsit under general issue; Young v. Rummell, 2 Hill, 480, 38
Am. Dec. 596, Miller v. Manioc, 6 Hill, 124, OfEutt v. John, 8 Mo. 127, 40
Am. Dflc. 130, all holding that judgment given in evidence under general
issue was as conclusive as though specially pleaded in har; Wann v.
McNulty, 7 111. 360, 43 Am. Dec 61, holding that judgment admitted under
general issue was but prima facie evidence, while, if pleaded, it was com-
plete bar; Kingsland v, Spalding, 3 Barb. Ch. 343, to point that former
judgment may be given in evidence in those cases where form of pleading
does not permit of special pleading; Meredith v. Santa Clara M. Assn., 56
Cal. 183, liolding that tender and setoff were admissible ; Reed v. The Fanny
20 Fed, Cas. 440, holding that prior decree in an admiralty cause should be
given in evidence and not set up by summary motion to prevent further
505 YOUNG V. BLACK. 7 Cr. 565-570
hearing; Oseanyan ▼. Winchester etc., 15 Blatchf. 87, Fed. Cas. 10,600,
holding defense that contract was against public policy could be set up;
Mason v. ISldred, 6 Wall. 234, 18 L. Ed. 784, to point that one may show
that the alleged cause of action never existed ; Dihgee v'. Letson, 15 N. J. L.
262, holding that partial as well as full payment may be given in evidence.
Parol evidence to contradict written instrument. Note, 11 £. B. 0.
235.
Controversy wUcli has become res Judicata, the law will not suffer again
to be drawn into question.
Approved in Wagenhurst v. Wineland, 22 App. D. C. 362, holding decree
dismissing former bill for same subject matter was bar to new action } J. T.
McTeer Clothing Co. v. Hay, 163 N. C. 500, 79 S. E. 957, holding judgment
on note covering all sums then due not estoppel as to different cause not
then in issue; Carl v. Knott, 16 Iowa, 383, where court said it is not
always necessary that it should appear afl&rmatively on record that same
canse of action was embraced in pleadings; Marsh v. Pier, 4 Rawle, 286,
26 Am. Dec. 140, holding recovery in assumpsit for price of goods is bar
to replevin; Covilltf^v. Oilman, 13 W. Va. 327, holding this rule to be
applicable where matters determined in common-law court were afterward
in controversy in equity; Beckwith v. Thompson, 18 W. Va. 119, holding
that facts not necessarily involved in former suit, however important, are
open to controversy; Washington etc. S. P. Co, v. Sickles, 24 How. 344, 16
L. Ed. 654, holding a judgment on a general verdict on a declaration con-
taining special and common counts, is hot bar in suit on special count;
Godding V. Livestock Co., 4 Colo. App. 18, 34 Pac. 943, holding that point
once adjudicated may be relied on as an estoppel, whenever either party
or privy alleges anjrthing inconsistent with it; Embury v. Conner, 3 N. Y.
523, 58 Am. Dec. 833, and Aurora City v. West, 7 Wall. 101, 19 L. Ed. 49,
both holding that former judgment is final as to every matter which might
l^ave been litigated ; Hanna v. Read, 102 111. 603, 40 Am. Rep. 612, hold-
^fig that judgment to set aside deed because of insanity is conclusive as
U> another deed made at same time ; Emmons v. Dowe, 2 Wis. 356, where
Judgment for the plaintiff in replevin was construed and was held not to
conclude question of ownership; Stiel v. Glass, 1 Ga. 486, to point that
^'"ders of court of competent jurisdiction within its authority cannot be
«^taeked indirectly; Cannony v. Hoober, 5 Pa. St. 310, holding that former
'lecovery on technical objection merely is not pleadable in bar; Hargus v.
^^<iman, 12 Ind. 632, where judgment in an action of trespass was held
^ ^H,x to an action of ejectment; Wyman v. Campbell, 6 Port. 237, 31
r^ Dec. 686, holding that judgment is conclusive, although there were
^'^gxilarities for which judgment would have been reversed; Gaines v.
p*^iien, 24 How. 579, 16 L. Ed. 779, on the point that judgment is not
^^ 'Where there is difference between causes of action and parties; Eling
^' ^hase, 15 N. H. 15, 41 Am. Dec. 677, holding that former judgment is
^^^clxisive only as to matter directly in issue; in Yates v. Yates, 81 N. C.
^\ Caperton v. Schmidt, 26 Cal. 505, 85 Am. Dec. 200, Lyman v. Becan-
/
7 Cr. 565-570 NOTES ON U. S. REPORTS. B96
aon, 29 Kich. 470, and Wood v. Jackson, 8 Wend. 44, 83 Am. D«c. 819, to
point that parol evidence is admissible to show what was- litigated.
Distingnisbed in Gerrish t. Pratt, 6 Minn. 62, holding tiiat judgment in
former suit for costs only, on ground that complaint contained no canse
of action and in which merits were not litigated, was not bar.
Joint contract can neret 'bt defeatttd tr mere pilvate contract of Indl-
Tldnal fb whom tftHeia IiaTe confided no autborltr.
. Cited in Lawrence v. Vilaa, 20 Wis. 391, to point that debt owing by
one of two or more partners cannot be set oS against partnership demand.
Demurrer to STtdence la allowed or denied In exercise of soimd discretion
nnder all clrcnmstancea of the case.
Approved in Duncan v. State, 29 Fla. 451, 10 South. 817, holding that in
criminal trials it ia entirely discretionary to entertain a demurrer to evi-
dence, even though both counsel consent; Van Stone v. Stiltwell etc. Mfg.
Co., 142 U. S. 134, S5 L. Ed. 963, 12 Sup. Ct. 183, holding that the action
of the canrt is not assignable as error; Alexander v, ritzpatrick, 4 Port,
409, holding error would lie for refusal in proper case; Sawyer v. Fitts,
2 Port. 14, 15, holding that on demurrer to evidence party must admit the
facts and conclusions which may be reasonably inferred ; Snydam v. Will--
iamson, 20 How. 436, 16 L. Ed. 961, holding that a demurrer to evidence
made evidence part of record; State v. Soper, 16 Me, 297, S3 Am, Dec
CB7, where it was said that demurrers to evidence were an unusual and
antiquated practice calculated to suppress truth and justice; Miller t.
Baltimore etc. Ry. Co., 17 Fed. Cas. 304, holding that demurrer is allowed
in no case where there are facts and circumstances which tend to estabttsh
issues; Waul v. Kirkman, 27 Miss. 830, holding that demorrer admitted
evidence but not facts which it was offered to prove; Pe<^le v. Roe, 1
Hill, 472, where cases on office and effect of demurrer to evidence are col-
lected; Welch V, County Court, 29 W. Va. 68, 1 S. E, 340, holding rule
that discretionary matters are not reviewed most be confined to cases which
are purely matters of discretion or such as in their result cannot do injury;
Jenkins v. Brown, 21 Wend. 456, to point that bill of exceptions will not
reach a decision which rests in discretion; State v. Muldoon, 9 La. Ann.
27, and State v. Hunt, 4 La. Ann. 439, to point that writ of error does
not lie to refusal to grant new trial or continuance; Lee v. Hardgrave, 3
Mich, 84, to point that refusal to reopen a cause will not be reviewed.
Distinguished in Moye v. Petway, 76 N. C, 330, where motion was made
for judgment non obatante veredicto.
DemuTBnt to erldance admits as trne all the facta whlcli that evidence
legally may conduce to Trove.
Approved in Slocum v. New York Life Ins. Co., 228 U, S. 390, 391, 414,
Ann. Cas. 19140, 1029, 67 L. £d, 891, 000, 33 Sup. Ct. 523, following rule;
Johnson v. United States, 5 Mason, 436, Fed. Cas. 7419, holding that party
demurring is bound to admit all facts evidence conduces to prove; Nolan
V. Shiekle, 3 Mo. App. 310, to point that on a demurrer only such inferences
597 SCHOONER ANNE v. UNITED STATES. 7 Cr. 570-572
from facts as are reasonable and legal can be taken as admitted; Joliet
etc. Ry. Co. V. Velie, 140 111. 62, 29 N. E. 707, holding: that if defendant
demur to evidence and there is evidence to prove issues in favor of plain-
^y the judgment must be in his favor; Pickel v. Isgri^, 10 Biss. 233, 6
Fed. 679, holding that every fact there is any evidence tending to prove
ninat be admitted so that court will have nothing to do but apply facts;
Mobile etc. R. R. Co. v. McArthur, 43 Miss. 186, holding demurrer ought
^oi to be allowed unless evidence be stated in form of facts proved so as
^ limit court to merely applying law; Hi^s v. Shehee, 4 Fla. 384, holding
^ftt where evidence is loose and indeterminable, court should not give
judgment on demurrer to evidence; Indianapolis etc. R. R. Co. v. McLin,
^2 Ind. 445, holding that on demurrer court need not weigh or reconcile
^iiflicting evidence jior consider which favors demurrant; Copeland v.
*^ew England Ins. Co., 22 Pick. 139, holding party demurring cannot avail
^jmself of such facts evidence tends to prove in his own favor; Pino v.
^^tch, 1 N. M. 131, holding that if there is disagreement as to facts, court
^JUiot decide what facts have been proved and compel party to join in
^^^emurrer to evidence not admitted, where demurrant refuses to admit
vf* ^hich other side attempts to prove.
^Oi^^ ^^ in Morrison v. McKinnon, 12 Fla. 558, holding that it is discrc-
^^^ with court to compel one to join in demurrer to evidence; Catlin
^* ^ud.crs, 3 Ala. 545, to point that one offering evidence cannot demur
\f^ -{acts which his adversary has proved; United States Bank v. Smith, 11
^Vlieat. 183, 6 h, Ed. 448, where court said the practice of demurring to
evidence should be discouraged.
Miscellaneous. Cited erroneously in State v. Brette, 6 La. Ann. 660.
7 Cr. 570-672» 3 L. Ed. 442, 8CH00NES ANNE ▼. XTNITED STATES.
Libel for forfeiture, stating generally grounds on which forfeiture is
claimed, la insufficient.
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 aver-
ment; United States v. Mann, 95 U. S. 586, 24 L. Ed. 53S, to point that
a charge in libel should conform to true sense and meaning of words as
used by legislature; United States v. One Distillery, 4 Biss. 27, Fed. Cas.
15,929, to point that every fact and circumstance material must be set
forth.
Libel In admiralty which is insufficient may be amended.
Approved in Ghcaham v. Oregon R. etc. Co., 134 Fed. 693, where excep-
tions to libel in admiralty for want of jurisdiction are sustained amend-
ment may be allowed; Davis v. Adams, 102 Fed. 525, holding admiralty
libel may be amended to conform to evidence; Union Cent. Life Ins. Co. v.
Phillips, 102 Fed. 28, holding amendments to pleading are discretionary
7 Cr. 572-575
NOTES ON 0. S. REPORTS.
598
And not reviewable; Anonymous, 1 Gall. 26, Fed. Cas. 444, holding Circuit
Court could allow amendments in revenue cases or proceedings in reniy
brought by appeal from District Court; The Martha, 1 Blatchf. & H. 166,
Fed. Cas. 9144, to point that amendments are freely allowed in admiralty ;
The Sarah, 8 Wheat. 397, 5 L. Ed. 645, to point that if there are merits
and. an amendment is wanted to make the allegations correspond "with
proof, cause will be remanded with directions to permit amendment ; "Wig*-
grins Ferry Co. v. Ohio & Miss. Ry. Co., 142 U. S. 415, 35 L. Ed. 1062,
12 Sup. Ct. 194, to point that it is within discretion even of appellate court
to permit amendment; Richmond V- The New Bedford Copper Co., 2 JuO'w.
317, Fed. Cas. 11,800, court saying some authorities held an action can
never fail for want of proper allegations, if merits appear; United States
V. Three Hundred and Ninety-six Barrels of Whisk.ey, 28 Fed. Cas. 122,
holding that informations of forfeiture filed by United States attorneys are
amendable, even after pleas filed ; Merriam v. Langdon, 10 Conn. 472, hold-
ing qui tam information was amendable after timet limited for presenting
new information.
7 Ct. 572-575, 3 L. Ed. 443, UNITED STATES ▼. JANUARY.
Be-reported by Judge Story, in 6 Mason, 87, note.
If debtor neglect to make application of payment, creditor may make
applicatiflai: if lie iieglects it, law will make it.
Approved in Taylor v. La Follettc, 49 W. Va. 484, 39 S. E. 278, holding
auditor must apply taxes paid during last year of sheriff's term for year
in which said taxes were assessed ; Martin v. Pope, 6 Ala. 540, 41 Am. Dec
70, where factor sold goods and appropriated proceeds to his account;
Hiltpn v. Burley, 2 N. H. 196, to point that where no direction is ^ven
the creditor may appropriate it to any legal demand; National Bank v.
Mechanics' Nat. Bk., 94 U. S. 439, 24 L. Ed. 178, to point that neither
party can make an application after controversy has arisen; Schulenberg
v. Martin, 1 McCrary, 351, 2 Fed. 750, holding that where money is paid
on running account without application the chancellor can apply it to an
unsecured portion; Robinson v. Doolittle, 12 Vt. 249, to point that in
equity payment will be applied on debt where security is. most precarious;
Caldwell v. Wentworth, 14 N. H. 438, holding that payment made on ac-
count of illegal claims could not be rescinded and be applied to other and
lej^^al claims; Matassy v. Frosh, 9 Tex. 613, where debtor neglected to ap-
propriate payment and creditor by his bookkeeper applied it; Summers v.
Lake, 12 N. J. L. 106, holding evidence that payment was specific and not
general, was admissible; Randall v. Pettes, 12 Fla. 535, where subject of
appropriation of payments was considered and leading authorities were
referred to; lUsly v. Grayson, 105 Iowa, 687, 75 N. W. 518, affirming rule
in discussing questions under certain pleadings.
Distinguished in Pattison v., Hull, 9 Cow. 771, where debts were of dif-
ferent character and a general payment was made without application.
Application of payments. Notes, 96 Am. St. Bep. 74; 8 £. R. 0. 855.
-^
699 UNITED STATES v. JANUARY. 7 Cr. 672-575
AppUcAtion of payments does not apply to payments by public officer,
vlio lias given different bonds witb different sureties.
Cited in United States v. Eckford, 1 How. 261, 11 L. Ed. 124, holding
that if collector continued in office more than one term, but gave different
sureties, their liability is estimated as if new person had been appointed;
Draffen v. CSty of Boonville, 8 Mo. 398, where a collector of city revenue
gave different bonds for each year with different sureties; Boody v. United
States, 1 Wood. & M. 168, Fed. Caa. 1636, holding payment by a deputy
postmaster before giving of a second bond was presumptively to be applied
on first bond.
Where public officer gives two bonds at different times and with different
Mts of sureties, moneys collected subsequent to execution of second bond
i^uuiot be applied to payment of first bond.
Approved in Columbia Digger v. Rector, 215 Fed. 625, 632, under plea
0^ payment in action against surety, erroneous application of payment may
^ proved ; First Nat. Bank v. National Surety Co., 130 Fed. 406, 407, 409,
^® li. R. A. 777, applying principle to indemnity bond of bank official;
^^nited States v. Honsman, 70 Fed. 583, 44 U. S. App. 174, where question
^as between sureties on different bonds of postmaster; Jones v. United
States, 7 How. 688, 69l', 12 K Ed. 873, 874, where there was but one bond
given by postmaster and question was as to the application of payments
successively made; Pickering v. Day, 2 Del. Ch. 366, where bonds were
•recuted by receiver of public revenue at different times, with different
^ts of sureties ; Pickering v. Day, 3 Houst. 540, 541, 96 Am. Dae. 312, 313.
^here sheriff gave different bonds with different setsi of sureties; Texas
^' ^iddleton's Sureties, 57 Tex^l90, holdin|; that taxes collected and paid
ftto treasury cannot be applied to the discharge of pre-existing debt of
P^ collector; Paw Paw v. Eggleston, 25 Mich. 40, and United States v.
^^p 2 McLean, 502, 505, Fed. Cas. 15,606, both holding that sureties are
° ^^vind for any previous defalcation; Seymour v. Van Slyck, 8 Wend.
» ^nd State v. Chadwick, 10 Or. 432, both holding that payments made
J ^S" particular terra were to be credited to that terra; Postmaster-Gen-
^^ V. Norvell, Gilp. 126, Fed. Cas. 11,310, holding that each set of sureties
^ Answer for its own defaults and is entitled to be credited with its
, \^ T>ayment8; Boring v. Williams, 17 Ala. 523, 524, where tax collector
, . office for^two successive terms with different sets of sureties ; Ana-
fteim Xj. W- Co. v. Parker, 101 Cal. 490, 35 Pac. 1050, holding bond of a
J, ^^^ry of a corporation was not retroactive; Inhabitants of Porter v.
^^^ley, 47 Me. §19, 74 Am. Dec. 502, holding that appropriations by
*'V^<i.\.inen of taxes to make up deficiencies of former years were unauthor-
VUfe^ "> Myers v. United States, 1 McLean, 498, Fed. Cas. 9996, to point that
^neys received by government cannot be applied to a balance due before
^4te of bond; Commonwealth v. Rcitzel, 9 Watts & S. 114, where officer
^as defaulter for several years previous to time defendant became a
surety; United States v. Morgan, 28 Fed. 51, affirmed in 35 Fed. 490, where
there were deficits in accounts of disbursing officer in funds for which
/
7 Cr. 675-^589
NOTES ON U. S. REPORTS.
600
\
sureties never became responsible; United States v. Nicholl, 12 Wlieat. 511,
6 L. Ed. 710, and 5 Mason, 94, Fed. Gas. 16,640, holding sureties were not
responsible for moneys placed in the hands of the principal after the ter-
mination of his office; Stone v. Seymour, 15 Wend. 36, where payments
were made by collector after new bond with new sureties had been given ;
State V. Sooy, 39 N. J. L. 547, holding that sureties of State treasurer are
liable for moneys received in payment of arrears due at the time the bond
was priven; United States v. Wardwell, 5 Mason, 87, 92, Fed. Cas. 16,640,
holding officers of the treasury department cannot apply payments a^inst
the will of the debtor; Chapman v. Commonwealth, 25 Gratt. 743, 747,
holding that if debts be due by an officer with different bonds, payments
under one bond will be applied on that bond.
Distinguished in Postmaster-General v. Furber, 4 Mason, 335, Fed. Cas.
11,308, where there were running accounts between a postmaster-general
and deputy, and it was held the credits were to be applied on debi& in
order due in absence of any appropriatiofi ; United States v. BtHcet, 24
Fed. Cas. 1143, where an action was brought on distiller's bond; Stone v.
Seymour, 15 Wend. 39, 43, where payments were made by collector after
new bond with new sureties given.
Liability of sureties on successive bonds. Note, 10 Am. St. Rep. 850.
7 Or. 575-676, 3 L. Ed. 444, UNITED STATES Y. PATTERSON.
When one delivering evidences of debt to officer to collect money due
and apDly it on debt due government entitled to credit.
Cited in State v. Newton, 33 Ark. 285, where State treasurer accepted
from his predecessor receipt or check of depositary with whom same was
left by officer.
7 Cr. 577-589, 3 L. Ed. 444, UVINaSTON v. DORGENOIS.
Mandamus and not writ of error lies to order to stay proceedings finally
upon suggestion of United States attorney, where United States not party.
Cited in Stephenson v. Mansony, 4 Ala. 320, holding an order striking a
cause from docket was not revisable, but that if wrong was done, man-
damus would lie; State ex rel. v. Superior Court, 14 Wash. 698, 45 Pac.
674, to point that appellate court will issue mandamus where there is no
appeal and act was not discretionary; Woodstock v. Gallup, 28 Vt. 592,
to point that mandamus is appropriate remedy where court disposes of
matters upon some incidental question and declines to hear case upon its
merits; Lloyd v. Brinck, 35 Tex. 9, holding mandamus lies to compel entry
of a judgment on a verdict; People v. Pearson, 3 111. 204, S3 Am. Dec. 448;
dissenting opinion in Ex parte Crane, 5 Pet. 219, 8 L. Ed. 103, and Jelley
v. Roberts, 50 lud. 7, all holding that Supreme Court may compel signing of
bill of exceptions; Schintz v.' Morris, 13 Tex. Civ. App. 598, 35 S. W. 525,
holding mandamus will issue to inferior court to compel performance of
ministerial duty.
NOTES ON U. S. REPORTS. 7 C^. 589-601
0^<^^<umi8 in nature of procedendo awarded by Supreme Court against
k^v tlonrt to stay proceedings in a canse.
- ^V^Kived in Barber Asphalt etc. Co. v. Morris, 132 Fed. 954, 966, 67
•^ ^ A. 761, 66 C. C. A. 56, Circuit Court of Appeals has jurisdiction to
issue mandamus to compel circuit judge to vacate order staying proceed-
ings in State court; In re Dowd, 133 Fed. 761, arguendo.
Snperintending control and supervisory jurisdiction over inferior or
subordinate tribunal. Note, 61 L. B. A. 84.
7 Cr. 58d-596, 3 L. Ed. 448, OTIS v. BACON.
Vessel cannot be seized for violating embargo after she has arrived at
port of discharge and has received permit to discharge from collector.
Cited in Otis v. Walter, 6 Wheat. 590, 5 L. Ed. 338, holding that demand
of permit to land does not terminate voyage, so as to preclude right of
detention; Hendricks v. Gonzales, G7 Fed. 353, 35 U. S. App. 131, to point
that if plaintiff has complied with conditions entitling him to clearance,
collector cannot refuse him one.
Distinguished in Otis v. Walter, 2 Wheat. 23, 4 L. Ed. 175, holding it
18 not indispensable to termination of voyage that vessel anive at terminus
of her original destination.
7 Gr. 596-601, 3 L. Ed. 451, THORNTON v. OABSON.
Award in the alternative and which gives a party an election is not void.
Approved in Brock v. Lawton, 210 Pa. 202, 59 Atl. 999, applying rule
where bill filed to compel delivery of stock or payment of its value.
Distinguished in Archer v. Williamson, 2 Har. & G. 69, where an award
comprehending part only of the matter submitted was held to be void.
If facts to prove award unreasonable do not appear in record, they can*
not be noticed by court.
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; Nolan v. Colorado Cent. Min. Co., 63 Fed. 934, 27
U. S. App. 433, holding appellate court will confine its rulings to questions
of law arising; upon facts shown ; York etc. R. R. Co. v. Myers, 18 How.
^2, 15 la. Ed. 3^3, to point as to the practice of reviewing awards in Fed-
eral courts ; Bond v. Dustin, 112 U. S. 606, 28 L. Ed. 836, 5 Sup. Ct. 297, to
point that in actions referred to arbitrators, only rulings and decisions on
flJstters of law are reviewable; Heckers v. Fowler, 2 Wall. 130, 17 L. Ed.
761, where court said it had been practice of the Federal courts to revise
\^igments and opinions of arbitrators; Roberts v. Benjamin, 124 U. S.
.^^ 31 L. Ed. 336, 8 Sup. Ct. 396, holding that exceptions to rulings on
evidence or to findings or refusal to find would not be reviewed; Duncan
V. Atchison etc. R. R. Co., 72 Fed. 811, 44 U. S. App. 431, holding right
of review is limited to questions of law appearing on the face of record.
7 Cr. 603-:632
NOTES ON U. S. REPORTSi
602
7 Or. 60S-6S2, 8 K Ed. 453, FAIBFAX V. HUNTEB.
Lord Fairfax, at time of his deatb, had absolute property of soil of waste
and unappropriated lands in Northe^ Neck of Virginia. ~-^
Cited in Stephen v. Swann, 9 Leigh, 414, holding that D. M. Fairfax
took whole interest of Lord Fairfax under his will; Martin v. Waddell, 16
Pet. 429, 10 L. Ed. 1020, construing letters-patent to the Duke of York by
King Charles the Second.
Distinguished in Morris v. United States, 174 U. S. 229, 43 L. Ed. 958,
19 Sup. Ct. ,663, construing claims of Marshall heirs to bed of Potomac.
By common law an alien can take lands by purdiase tliougli not by
descent.
Approved in Elmendorff v. Carmichael, 3 Litt. (Ky.) 474, 14 Am. Dec. 88,
holding an inquest of office was absolutely necessary to divest an alien ;
People V. Conkling, 2 Hill, 69, 71, to point that there is no difference be-
tween title acquired by devise and one acquired by any other form of
purchase; Kershaw v. Kelsey, 100 Mass. 675, 676, 97 Am. Dec. 137, 138,
holding an alien enemy could acquire lands by purchase during war ; Giiyer
V. Smith, 22 Md. 247, 85 Am. Dec. 652, holding that illegitimate alien chil-
dren may take by devise; S temple v. Herminghouse, 3 G. Greene, 410,
holding that nonresident foreig^ier cannot inherit estate of his resident
parent; Orser v. Hoag, 3 Hill, 82, holding that person born in this country
but who left it in July, 1783, and never returned, was an alien and incapa^
ble of taking by descent; Shanks v. Dupont, 3 Pet. 268, 7 L. Ed. 672», dis-
senting opinion, where treaty with Great Britain of 1794 was construed
and effect of marriage with an alien considered; Hardy v. De Leoli, 5 Tex.
240, holding that where one dies leaving issue who are aliens, estate goes
to next of kin who are citizens; O'Hanlin v. Van Kleeck, 20 N. J. L. 44,
holding that realty of person dying intestate and leaving no heirs capable
of inheriting, vests in the State at instant of his death ; Jackson v. Adams,
7 Wend. 368, holding that if an alien holding land under acts of 1802 and
1808 dies intestate, his lands descend to his hei^, though aliens; Craig v.
Radford, 3 Wheat. 699, 4 L. Ed. 469, where point was made that British
subject could not take legal title in Virginia, and that grant to him in 1788
was void and not protected by treaty of 1794; Conrad v. Waples, 96 U. S.
289, 24 L. Ed. 724, where the act of 1862, relating to confiscation of prop-
erty was construed.
By common law alien can take but not bold lands; until lands are seized
by sovereign, lie lias complete dominion over same.
Approved in In re Palmer Window Glass Co., 183 Fed. 903, holding
foreign corporation licensed to do business in Pennsylvania could acquire
real estate there and mortgage it; Donaldson v. State, 182 Ind. 625, 101
N. E. 489, holding land of alien at his death vested in State; Husbands v.
Polivick, 128 Ky. 665, 96 S. W. 830, holding' tax sale did not pass title to
State; Pembroke v. Huston, 180 Mo. 638, 79 S. W. 471, alien cannot aban-
don property and rescind contract for exchange of lands; Louisville Prop-
erty Co. V. Mayor & City Council of Nashville, 114 Tenn. 221, 84 S. W.
603 FAIRFAX v. HUNTER. 7 Cr. 603-632
s
812y purchftse of land by foreign corporation without first complying with
laws relating to foreign corporations is no bar to snit for damage to land
from ehxmge of street grade; State v. King, 63 W. Va. 608, 63 S. E. 494,
npholding State statute providing for sale of lands forfeited for nonentry
on tax-books ; Quigley v. Birdseye, 11 Mont. 446, 28 Pac. 743, holding that
an alien may acquire title to ditch and water right and hold the same until
office found; Cunningham v. Browning, 1 Bland Ch. 308, where court con-
sidered objects of inquest of office and cases in which it was necessary;
Montgomery v. Dorion, 7 N. H. 480, 481, holding that where an alien dies
her land vests at once in State ; Miller v. Harwell, 3 Murph. 202, 205, hold-
ing that an alien can be devisee ; Vaux v. Nesbit, 1 McCord Ch. 381, hold-
ing that alien devisee may hold in exclusion of next heir until office found ;
Leazure v. Hillegas, 7 Serg. & R. 322, holding Bank of North America
could purchase land in distant country, although their title was defeasible ;
MoUett V. Simpson, 94 N. C 41, 55 Am. Bep. 596, and National Bank v.
Matthews, 98 U. S. 628, 25 L. Ed. 190, both holding that where corporation
was incompetent to take a title to realty, conveyance to it was voidable
and not void ; Williams v. Wilson, Mart. & Y. 253, 254, where title to lands
derived through an alien was held to be valid; Farmers' Loan & T. Co. v.
McEjnney, 6 McLean, 5, Fed. Cas. 4667, to point that an alien may con-
vey defeasible estate which may be diverted on office found; Jenney v.
Laurens, 1 Spear, 365, where court said that if he were out of possession
it would seem he could maintain no action to recover it; Bradstreet v.
Oneida County, 13 Wend. 548, to point that an alien may defend but can-
not prosecute an action touching realty ; Rouche v. Williamson, 3 Ired. 147,
holding an alien can bring an action of ejectment ; Etheridge v. Malempre,
18 Ala. 574, on the point that an alien can convey and bring action for
possession; Lobdell v. Hall, 3 Nev. 516, on the point that an alien may de-
fend himself against real action; Wadsworth v. Wadsworth, 12 N. Y. 380,
to point that a conveyance by an alien is good as against himself, but title
is voidable by the sovereign; Crane v. Reeder, 21 Mich. 73, 4 Am. Rep.
443, where it was said no alien could inherit or transmit by inheritance;
Guyer v. Smith, 22 Md. 248, 85 Am. Dec. 653, holding that an escheat
patent had same effect as office found; Baker v. Shy, 9 Hcisk. 90, to point
that the government alone can allege the escheat of lands in possession of
alien; Kershaw v. Kelsey, 100 Mass. 574, 97 Am. Dec. 136, to point that
country can confiscate the property of an alien ; Heirn v. Bridault, 37 Miss.
229, holding that alien enemies could not maintain any action or- acquire
any right to property.
Distinguished in Columbia Valley R. Co. v. Portland etc. Ry. Co., 162
Fed. 606, 89 C. C. A. 361, holding act of 1906, providing that United States
resumed rights to lands granted to railroads upon failure to construct road
for five years after location, was legislative adjudication of forfeiture and
effective at once ; Abrams v. State, 45 Wash. 339, 122 Am. St. Eep. 914, 13
Ann. Cas. 110, 9 L. R. A. (N. S.) 186, 88 Pac. 329, holding under State
Constitution aliens could hold land by descent from aliens ; Wulf v. Manuel,
9 Mont. 285, 23 Pac. 725, holding that an act of naturalization would not
retroact to purchase or possessory right in mining claim.
AUen's right to inherit. Note, 31 L. R. A. 177.
/
7 Cr. 603-632 NOTES ON U. S. KEPOBTS. - 604
Tbere la no dlflarance between kllen friends and alien enemlM In rsQsct
to TlgMa and dlubllltlM as to lioldlng propertr.
Cited in Kauenstein v. Lynham, 100 U. 8. 484, 25 L. Ed. 629, wher« rig^ht
of an alien, a native of Switzerland, as an heir to one dying in Vii^nia,
was considered; Kershaw v. Kelsey, 100 Mass. 575, 97 Am. Dec. 1S7, where
court said it liad been held that aiiea enemy could take by devise; ^eo v.
Mercereau, 13 N. J. L, 397, holding that children of an alien who purchased
while he was alien enemy before January 22, 1817, and continued to hold
after that time and after he became an alien friend, may inherit; Hardy v.
De Leon, 5 Tex. 239, where court said there were circumstances where their
rights widely differed; Jenkins v, Noel, 3 Stew, 80, holding that alien may
purchase and hold land until ofiice found and may sue for its possession ;
Crutcher v. Hord, 4 Bush (Ky.), 367, holdii^ that an alien enemy-may be
devisee or legatee.
Title acquired by alien by pnrcbase not dlveited imtu office found; contia
aa to lands cast by deanent npon alien.
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 hos-
pital, fact that at testator's death charitable corporation could not hold
property to amount of devise did not invalidate gift -as to excess where
special act passed permitting corporation to take ; Shea v. Nilima, 133 Fed.
215, 66 C. C. A. 263, upholding agreement between two aliens to locate
mining claims; United States v. Hepentigny, 5 Wall. 268, 17 L. Ed. 646,
holding that legislative act is equivalent to office found and that the mode
of assuming forfeited grant is subject to the legislative authority; Schenck
V. Peay, 21 Fed. Cas. 682, as to the nature of inquest of office; Tibbitts v.
Ah Tong, 4 Mont. 537, 2 Pac 760, holding that an alien can neither locate
nor acquire title by patent to mineral land ; Harley v. State ex rel. Attorney
General, 40 Ala. 696, holding that alien may purchase and hold hia land
by defeasible title; Reid v. State ex tel. Thompson, 74 Ind. 256, holding
that where alien dies, State has title at once, and may enter without office
found; Slater v. Nason, 15 Pick. 349, holding that an alien has no inherit-
able blood and that no one can derive title through him ; Haigh v. Haigh,
9 R. I. 29, holding that prior to chapter 700 of the statutes, an alien had
no inheritable blood and no trust in real estate could be created in his
favor; Cross v. Del Valle, 1 Cliff. 286, Fed. Cas. 3430, and Taylor v. Ben-
ham, 5 How. 270, 12 L. Ed. 148, both holding that land taken by devise did
not escheat until office found; Crane v. Reeder, 21 Mich. 80, 4 Am. Bep.
448, holding wliere an alien owning lands in Michigan, leaves child bom in
England, land escheated; Sands v. Lynham, 27 Gratt. 297, 21 Am. Bep.
351, where effect of sale of land to pay debt was considered; Priest v. Ciun-
mings, 20 Wend. 357, holding that a widow was not entitled to dower in
lands of her husband before act of 1802, to enable aliens to purchase;
Rnnyan v. Lessee of Coster, 14 Pet. 131, 10 L. Ed. 387, where powers of
corporation in another State were considered; Perry v. Commissioners of
(05
FAIRFAX V. HUNTER. 7 Cr. 603-632
Clinton eto. R. R. Co.^ 11 Rob. (La.) 415, holding an act declaring railroad
forfeited to the State to be unconstitutional ; Cross v. De Valle, 1 Cliff. 286,
Fed. Cas. 3430, holding same.
Necessity for judicial proceeding to effect escheat. Note, 15 L. R. A.
(N. S.) 380, 382. ^
Escheat to government. Note, 8 E. R. 0. 170.
Commonwealtli cannot grant land held by alien by purchase until title
perfected by inquest of office followed by entry and seizure where possession
was not vacant.
Cited in Thompson v. Bright, 1 Cush. 430, holding that this principle
applies to all cases of forfeiture except as to forfeiture of lands of persons
attainted of high treason ; Society etc. v. New Haven, 8 Wheat. 492, 6 L. Ed.
669, holding an act granting lands belonging to a society to the respective
towns in which the lands lie was void ; Commonwealth v. Hite, 6 Leigh, 594,
29 Am. Dec. 228, holding that the king or State can acquire possession of
escheated lands only by some matter of record.
^ Statute should not be construed strictly to yest lands of aliens in com-
monwealth wltiiDut inquest for cause of alienage.
Cited in Robinson v. Huff, 3 Ldtt. (Ky.) 38, holding that rule requiring
office found may be repealed, but that it' must be in clear terms*; Rose-
baugh v. Saffin, 10 Ohio, 36, to point that nothing is presumed in favor of
a forfeiture in a statute if there is any room for doubt ; Bennett v. Hunter,
9 Wall. 336, 19 L. Ed. d76, to point that a forfeiture is not to be inferred
from language capable of any milder construction; Griffin v. Mixon, 38
Miss. 445, to point that statutes declaring forfeitures axe not supplied by
intendment; Martin v. Snowden, 18 Gratt. 127, holding an act forfeiting
\ lands for nonpayment of taxes to be unconstitutional ; Atlantic R. R. Co.
V. Mingus, 165 U. S. 432, 41 L. Ed. 778, 17 Sup. Ct. 353, holding that Con-
gress did not exceed its powers in forfeiting a land grant; Exeter v.
Stratham, 2 N. H. 104, to point that inchoate rights depending upon e^ist-
^^ statutes cease on the repeal of those statutes; King v. Mullins, 171
" S. 4i7j construing West Virginia law forfeiting property for failure to
piaee it on prescribed books for taxation.
^eaty auprema law of land.
. ^ited in Opel v, Shoup, 100 Iowa, 424, 69 N. W. 563, holding that treaty
6i^Hg^ aliens right to inherit does not alter statute of State as to descents
w ^^ to render it unconstitutional; Wunderle v. Wunderle, 144 111. 54, 33
^« 197, to point that disqualification of alien is removed by a treaty
CO
r ^-^^rring right to take, hold and transfer real property; Hauenstein v.
^Ham, 100 U. S. 490, 25 L. Ed. 630, to point that the treaty of 1794 with
Ukt^^t Britain removed the impediments of alienage and was within tho
^Q^titutional powers of the Union; Stockton v. Montgomery, Dall. (Tex.)
^50, to point as to the general theory of the co-ordinate branches of govern-
flient; PoUard v. Kibbe, 14 Pet. 412, 10 L. Ed. 519, following rule.
Succession to estates of intestate. Note, 12 Am. St. Rep. 95.
7 Cr. 603-632
NOTES ON U. S. REPORTS,
606
Miscellaneous. Cited in Louisville etc. R. R. tHo. v. Stewart, 241 U. S.
263, 60 L. Ed. 994, 36 Sup. Ct. 586, on question 6i procedure or error to
State court ; Stanley v. Schwalby, 162 U. S. 280, 282, 40 L. Ed. 969, 16 Sup.
Ct. 764, 765, upon the appellate jurisdiction of the Supreme Court of United
States; In re Booth, 11 Wis. 508, holding Constitution gave Congress the
power te provide for appeal to Supreme Court of United States from State
court*
NOTES
ON THE
UNITED STATES REPORTS.
Vm CBANCH.
8 Or. 0-30» 8 Ii. Ed. 471, aBIFFJTH ▼. FRAZIER.
Wlien there is one auaUfl^d esEeentor, court is trltbont Jurisdiction to
appoint another.
Approved in Newman y. Schwerin, 61 Fed. 870, holding appointment
of administrator ad litem under Act Tennessee 1889 cannot be upheld in
absence of showing in recQ;rd that there was no administrator or executor;
Fleming v. Capital Traction Co., 40 App. D. C. 491, holding court could
not appoint administrator to bring action for death, when administrator
was already in existence; In re Estate of Brinckwirth, 266 Mo. 482, 181
S. W. 405, holding where will was discovered after appointment of admin-
istrator, such administrator was not entitled to letters with will annexed;
Nash V. Sawyer, 114 Iowa, 746, 87 N. W. 709, arguendo ; Kane v. Paul, 14
Pet. 40, 10 L. Ed. 345, holding appointment of administrator during life
of qualified executor void; Cuyler v. Ferrill, 1 Abb. (U. S.) 178, Fed. Cas.
3523, holding decree of partition by court without jurisdiction is void;
Holmes v. Oregon & Cal. R. R. Co., 6 Sawy. 282, 7 Sawy. 383, 6 Fed. 631,
9 Fed. 231| holding decision Qi State court on inhabitancy not open to ex-
amination in Federal court; Nettleton v. Hosier, 3 Fed. 388, 389, holding
appointment of guardian to nonresident infant open to collateral attack;
In re Haynes, 30 Fed. 770, holding order of remission of indictment by
court without jurisdiction is void; Matthews v. Douthitt, 27 Ala. 276, 62
Am. Dec. 766, holding void, appointment of administrator de bonis non
before office of his predecessor is vacant ; Hooper v. Scarborough, 57 Ala.
514, holding appointment of administrator void, with first letters unre-
voked; Haynes V. Meeks, 10 Cal. 119, 70 Am. Dec. 708, holding, accepting
resignation of administrator, without an accounting, voidable, hence not
subject to collateral attack; Terry's Appeal from Probate, 67 Conn. 187,
34 Atl. 1033, holding after court approves of the executor in will, he can-
not appoint administrator; Davis v. Shuler, 14 Fla. 445, 447, holding acts
of sheriff not empowered by court as administrator do not bind estate;
Epping & Co. V. Robinson, 21 Fla. 49, holding letters granted by County
Court, where want of jurisdiction appeared on record, void; Mathews v.
(607)
8 Cr. 9^0
NOTES ON U. S. REPORTS.
608
1/
Durkee, 34 Fla. 562, 16 South. 412, holding revocation of letters cannot be
attacked collaterally; Justices v. Selman, 6 Qa. 442, holding second_ad-
ministrator cannot be appointed until office is vacant; Thompson v.
Knight, 23 Ga. 401, holding acts of administrator after revocation of his
powers, pending appeal, are void; Heirs v. Baker, 23 111. 436, holding salo
by administrator will be declared void, if record does not show jurisdic-
tional facts authorizing his appointment; Nool v. Bradley, 2 Blackf. 159,
holding appointment of a justice of peace in anticipation of vacancy, void ;
Koehler v. Hill, 60 Iowa, 631, 15 N. W. 623, holding recital in joint reso-
lution by succeeding general assembly, not conclusive upon courts as to its
original form; Perry v. St. J. & W. etc. Co., 29 Kan. 423, holding issuing
^f letters on estate of nonresident, leaving no property here, void; Sneed
V. Ewing, 5 J. J. Marsh. 460, after foreign will is recorded here, appoint-
ment of administrator, without annexing it, is void; Holyoke v. Haskins,
5 Pick. 27, 16 Am. Dec. 376, holding administration void, acquires no
validity from acquiescence ; Waters v. Stickney, 12 Allen, 13, 90 Am. Dec.
132, holding Probate Court has power to approve a codicil, after admitting
will to probate ; Mousseau's Wilt, 30 Minn. 206, 14 N. W. 889, declaring
proceedings to re-probate will, when it has been regularly probated, void;
Vick v. Mayor etc., 1 How. (Miss.) 440, 31 Am. Dec. 180, holding appoint-
ment of administrator, without stating jurisdictional facts, is void;
Thomas v. Burrus, 23 Miss. 557, 57 Am. Dec. 156, holding appointment of
second guardian void; Post v. Caulk, 3 Mo. 36, holding appointment of
second administrator void; Johnson v. Beazley, 65 Mo. 259^ 264, 27 Am.
Rep. 282, 286, holding appointment of administrator by court of general
jurisdiction cannot be questioned, collaterally; dissenting opinion in State
V. Benton, 12 Mont. 80, 29 Pac«-429, majority holding ' appointment of
second administrator not proper case for writ of prohibition; Morgan v.
Dodge, 44 N. H. 260, 82 Am. Dec. 217» limiting power of court to a revoca-
tion only of letters granted without jurisdiction; State v. Sheriff, 15
N. J. L. 71, holding judgment of court with jurisdiction cannot be re-
dressed by habeas corpus; Hyman v. Gaskins^ 5 Ired. 273, holding, if court
under any circumstances could have granted letters in such a case they are
not void ; Adams v. Jeffries, 12 Ohio, 274, 40 Am. Dec. 480, holding admin-
istrator's sales, under order of court not showing heirs parties, is without
jurisdiction and void; Ramp v. McDaniel, 12 Or. 116, 6 Pac. 460, holding
appointment of administrator out of order, fixed by code not nullity;
Camp V. Wood, 10 Watts, 120, 122, holding decree of justice of peace void,
where record does not show jurisdiction; Franklin v. Franklin, 91 Tenn.
127, 18 S. W. 63, holding appointment of administrator by court of gen-
eral jurisdiction only voidable; State v. de Casinova, 1 Tex. 404, holding
court must exercise power conferred by statute in prescribed way, other-
wise it has no jurisdiction; Fisk v. Norvel, 9 Tex. 19, 58 Am. Dec. 132,
holding it cannot be proved collaterally that Probate Court acted er-
roneously upon subject matter within its cognizance; Brockenborough v.
Melton, 55 Tex. 501, holding decree of court of general jurisdiction is con-
clusive against collateral attacks, as to jurisdictional facts; Ex parte
Barker, 2 Leigh, 720, where first court had no jurisdiction, second admin-
609 GRIFFITH v. FRAZIER. 8 Cr. 9-30
istrator may be appointed; Fisher v. Bassett, 9 Leigh, 140, 33 Am. Dec.
238, holding appointment of administrator by court without jurisdiction,
only son; 39 W. Va. 306, 45 Am. St. Sep. 918, 919, 19 S. £. 625, holding
where Probate Court of general jurisdiction errs in taking jurisdiction of
a particular case, its decree is voidable ; Evans v. Johnson, 39 W. Va. 3G6,
45 Am. St. Rep. 918, 919, 19 S. E. 625, holding act of clerk, appointing
committee for insane person without notice to him, void; Atchison v.
Rosalip, 3 Finn. 291, holding sale under judgment of justice of peace,
defendant not being served or appearing, void; Sitzman v. Pacquette, 13
Wis. 311, holding* appointment of administrator de bonis non, when office
was not vacant, void ; Tison v. McAfee, 50 Ga. 287, 290, 291, and Mc Artlnir
V. Scott, 112 U. S. 399, 28 L. Ed. 1034, 5 Sup. Ct. 672, both arguendo.
Distinguished in Young's Admr. v. Chesapeake etc. Ry. Co., 136 Ky. 788,
J 25 S. W. 242, holding administrator appointed on same day will was ad-
mitted to probate became administrator with will annexed ; Noble v. Rail-
road Co., 147 U. S. 173, 37 L. Ed. 126, 13 Sup. Ct. 273, holding that quasi-
iurisdietional facts once established, a decision of Secretaiy of Interior
is final; Veach v. Rice, 131 U. S. 313, 33 L. Ed. 170, 9 Sup. Ct. 737, hold-
ing under code, where one joint executor dies, ordinary can appoint an-
other; Brock V. Frank, 51 Ala. 92, holding appointment of administrator
here, after will had been probated in South Carolina, voidable; Roach v.
Martin, 1 Harr. 559, 560, 27 Am. Dec. 760, 762, holding order for sale of
land is conclusive as to facts necessary to order; Ponder v. Moscley, 2
Fla. 267, 48 Am. Dec. 201, and Tucker v. Harris, 13 Ga. 8, 17, 58 Am. Dec.
4:92, 600, both declaring that judgments of courts of general jurisdiction
are never void; Gray v. State, 78 Ind. 73, 41 Am. Rep. 549, holding that
8Meti*s on guardian's bond, after he has sold real estate, are estopi)cd
from denying he is guardian; Ames v. Williams, 72 Miss. 771, 775, 17
South. 765, 767, holding appointment of guardian by court of general ju-
risdiction cannot be . collaterally attacked by showing nonresidcnce of
minor; Scobey v. Gano, 35 Ohio St. 554, holding that where first guardian
was ineligible, another could be appointed without vacating first; Levy v.
Riley, 4 Or. 396, holding sale by disqualified administrator not absolutely
void; McPherson v. Cunliflf, 11 Serg. & R. 430, 14 Am. Dec. 651, upholding
decree, though heirs were not parties and plaintiff was estopped from
denying it.
Probate of will or letters of administration when void for want of
jurisdiction. Note, 33 Am. Dec. 239. *
Ai^polntment of administrator by court without Jurisdiction is void.
Approved in Cunnius v. Reading School Dist., 198 U. S. 473, 49 L. Ed.
1131, 25 Sup. Ct. 721, upholding Pa. Laws 1885, p. 155, for administration
of estates of absentees ; American Loan & Trust Co. v. Grand Rivers Co.,
159 Fed. 779, holding Federal court had no jurisdiction to order payment
to United States as on escheat of money deposited with court and un-
claimed ten years ; Richmond etc. R. R. Co. v. Gorman, 7 App. D. C. J.03,
110, holding grant of letters in another State not subject to collateral
attack; Savings Bank of Baltimore v. Weeks, 103 Md. 606, 64 Atl. 296,
1—89
/
8 Cr. 9-30
NOTES ON U. S. REPORTS,
610
\
\
holding void act, of 1896, giving Orphans' Court jurisdiction to appoint
administrator for estate of person unheard of for seven years; Murray v.
American Surety Co. of N. Y., 70 Fed. 346, holding that in proceedings
under Cal. Stats. 1886-87, p. 90 (bank commissioner's act), court could
not appoint receiver; Carr v. Brown, 20 R. I. 222, 78 Am. St. R^. 861,
38 Atl. 11, holding void Pub. Laws 1882-85, chapter 298, providing for ad-
ministration of estate of persons not heard of for seven years; Roy v.
Whitaker (Tex. Civ.), 60 S. W. 492, holding in proceedings to review ad-
ministrator's sale of Und purchasers from grantee are not proper parties ;
Jordan v. Chicago etc. Ry. Co., 126 Wis. 588, 592, 110 Am. St. Rep. 865,
1 L. R. A. (N. S.) 885, 104 N. W. 805, 807, under Rev. Stats. 1898, § 3819,
County Court on hearing petitioiji for administration may determine
whether or not deceased leaves property in State, and its determination
is not collaterally attackable; Rice v. Tilton, 14 Wyo. 113, 82 Pac. 579,
administrator appointed under voidable order reciting proof of notice
made, but where in fact statutory notice to executor named in will not
mailed, is entitled to commissions and disbursements; Vermillion v. Le
Clare, 89 Mo. App. 61, arguendo ; Scott v. McNeal, 164 U. S. 40, 42, 38
L. Ed. 899, 900, 14 Sup. Ct. 1110, 1111; Stevenson v. Superior Court, 62
Cal. 62 ; Thomas v. People, 107 111. 622, 625, 47 Am. Rep. 459, 462 ; Burns
v. Van Loan, 29 La. Ann. 564; Springer v. Shavender, 116 N. C. 16, 47
Am. St. Rep. 792, 21 S. E. 399; Devlin v. Conmionwealth, 101 Pa. St.
277, 47 Am. Rep. 712, D'Arusment v. Jones, 4 La. 364, 40 'Am. Rep. 13,
and Mclia v. Simmons, 46 Wis. 338, 30 Am. Rep. 747, all holding admin-
istration of estate of living person is void; Lavin v. Bank, 18 Blatehf. 36,
1 Fed. 674, holding payment to administrator appoii^ted under statute,
where party has been absent, etc., is no defense in action by creditor;
United States v. Payne, 4 Dill. 389, Fed. Cas. 16,014, holding grant of
letters on estate of Indian void; Jochumsen v. Savings Bank, 3 Allen,
93, allowing person to recover deposit, though it had been paid to admin-
istrator; Rodcrigas v. Savings Institution, 76 N. Y. 320, 322, 32 Am. Rep.
311, 312, holding letters received by administratrix from derk on petition
upon information void; Blakely v. Frazier, 20 S. C. 155, declaring that
appointment by Probate Court of executor not nominated in the will is
a nullity; Hamilton v. Brown, 161 U. S. 267, 40 L. Ed. 697, 16 Sup. Ct.
589, arguendo.
Denied in Roderigas v. Savings Institution, 63 N. T. 469, 20 Am. Rep.
562, holding that money l^ing paid to administrator is a bar to an action.
Validity of grant of administration. Note, 79 Am. Dec. 66.
Grant of letters of administration to -one not entitled is binding until
annulled.
Approved in Steinberg v. Saltzman, 130 Wis. 427, 110 N. W. 201, fol-
lowing rule; Singo v. Fritz, 165 Ala. 662, 61 South. 869, holding decree
setting aside property to decedent's widow, when minor heir had no notice
of proceedings, was voidable on motion of heir at same term ; Cowie v.
Stiohmeyer, 160 Wis. 443, 136 N. W. 973, as illustrating distinction b^
611 - VAN NESS V. FORREST. 8 Cr. 30-36
tveen jurisdiction of subject matter rendering erroneous judgment bind-
ing till impeached and mere assertion of jurisdiction.
Conclusiveness of decrees of probate courts. Note, 27 Am. Bep. 286.
Conclusiveness of probate as res judicata. Note, 21 L. B. A. 685.
Collatefftl attack on decree granting letters testamentary or of admii\;
istration. Note, 4 Ann. Oas. 1119.
Jurisdiction of probate court over administration on estate of living
person. Note, 80 Am. Rep. 748, 749, 752.
AdmSi^tration on estate- of living person. Notes, 47 Am. Rep. 465;
73 Am. Dec. 126.
Administrators de bonis non. Note, 108 Am. St. Rep. 414.
Right of alien or nonresident to act as executor or administrator.
Note, 8 Ann. Oas. 991.
Nonresident's right to act as executor or administrator. Note,
1 L. R. A. (N. S.) 842, 844.
Who may be executor. Note, Ann. Oas. 1918B, 1168.
C^rsnt of administration during absence of next of kin beyond seas.
Note, 2 E. B, 0. 122.
Validity of acts under letters probate afterward revoked or held in-
vaUd. Note, 21 L. R. A. 147, 148.
^ -^^'•ciitor wiM alNMBts bimMf from State is stlU bound to perform all
^^^^I>Jroved in Edmonds v. Crenshaw, 14 Pet. 169, 10 L. Ed. 404, holding
« '^Hq removal of an executor from the State does not disqualify him
^ '^Ckntinuing to execute his trust.
'^^cct of death after judgment on remedy by execution. Note, 61
X4. R. A. 867.
a ^^^llaneous.- -Cited in Leahy v. Haworth, 141 Fed. 862, arguendo;
^^^\ing opinion in May v. May, 7 Fla. 231 ; Hatch v. White, 2 Gall. 162,
\^. Cas. 6209; Walker v. Torrance, 12 Ga. 607, but without particular
application.
B Cr. 30-35, 3 L. Ed. 478, VAN NESS ▼. FORREST.
Note payable to A B, as president of company, is suable by A B In own
, name, though proceeds belong to company.
Approved in Bank of United States v. Lyman, 1 Blatchf . 306, Fed. Cas.
924, 20 Vt. 675, holding parol evidence inadmissible to show who is real
party in interest to a promissory note; Pacific Guano Co. v. HoUeman, 4
Woods, 464, 12 Fed. 62, holding proof inadmissible to show principal is
owner of note^ and he may sue in his own name; Coursly v. Baker, 7 Har.
& J. 32, holding note given in individual's name for partnership debt may
be sued on by him; Hymer v. Ijams, .56 Md. 473, holding that where note
vas given in name of treasurer, suit should be brought in his name; as
also Haynes v. Covington, 13 Smedes & M. 412, where note was made
/
8 Cr. 36-39
NOTES ON U. S. REPORTS.
IS12
payable to president of board; Underbill v. Gibson, 2 N. H. 357, where
note was to agent of corporation; Hunt v. Van Alstyne, 25 Wend. 611.
where action was in name of president, plea as to illegality of corporation
not good ; Blanchard v. Ely, 21 Wend. 345, 34 Am. Dec. 252, arguendo.
Suit by principal on note to agent. Note, 12 Am. Dec. 710, 715.
Ownership of paper payable to directors or officers of corporation.
Note, 50 L. B. A. (N. S.) 1122.
Character of contract as affecting right of undisclosed principal to sue
thereon. Note, 29 L. B. A. (N. S.) 473, ^
Bule prohibiting one partner suing another does not apply where note
given by one partner to indlTidual partner.
Cited in Lyon v. Malone, 4 Port. 500, holding where one partner after
dissolution pays firm's debts, he may sue others; Grigsby v. Nance, 3 Ala.
351, holding partner may sue on note given as part of capital stock;
Huyck V. Meador, 24 Ark. 194, holding that in transactions not connected
with the partnership partners stand as individuals; Caswell v. Cooper,
18 111. 535, holding one partner can sue on note received after dissolution
for sale of goods to another; dissenting opinion in Causten v. Burke, 2
Har. & G. 302, 18 Am. Dec. 299, majority holding one partner cannot
sue for work done on account x)f partnership; Cook v. Canny, 96 Mich.
401, 55 N. W. 987, holding one partner can sue another upon agreement in
partnership articles; Gibson v. Moore, 6 N. H. 554, holding partner can
sue on award for general balance ; Gridley v. Dole, 4 N. Y. 492, holding one
partner can sue on note received after dissolution; Crater v. Biningcr,
45 N. T. 548, holding partner can sue, if obligation, though relating to
partnership, is distinct; Wilson v. Wilson, 26 Or. 258, 38 Pac. 188, holding:
partner can sue another on note given for particular items; Collamer v.
Foster, 26 Vt. 759, holding one partner can sue on express agreement on
distinct matter; Willis v. Barron, 143 Mo. 457, 65 Am. St. Rep. 676,
45 S. W. 290, holding one partner can sue another to compel him to pay
his share of a partnership note.
Where defense is matter of fact in denial of contract alleged, it amounts
to tbe flreneral issue.
Cited in Little v. BoUes, 12 N. J. L. 174, holding, under statute, that
defendant cannot givo notice of special matter when general issue is
proper plea.
8 Cr. 3e>39, 3 L. Ed. 479, BANE OF ALEXANDRIA ▼. HERBERT.
Tmstee of insolvent debtor reuresents creditors and is not bound l>y
irregularly recorded mortgage, though debtor would be.
Approved in Fourth St. Nat. Bank v. Milbourne Mills Co's. Trustee, 172
Fed. 179, SO L. R. A. (N. 8.) 552, 96 C. C. A. 629, holding trustee in bank-
ruptcy could avoid any transfer of property which any creditor might have
avoided; Casey v. Cavaroc, 96 U. S. 489, 24 L. Ed. 788, holding pledgee
cannot recover from receiver of pledgor, when there was no change of
possession; McQuire v. Briscoe, 16 Fed. Cas. 138, arguendo.
613 MARCARDIER v. C5BESAPEAKE INS. CO. 8 Cr. 39-50
Distinguished in Colbert v. Baetzer, 4 App. D. C. 425, holding assignee
of insolvent under voluntary assignment was not purchaser without notice
as ag^ainst prior equitable claim ; Haskill v. Sevier, 25 Ark. 161, 162, hold-
ing irregularly recorded mortgage good against administrator of mort-
gagor.
8 Or. 39-50, 3 L. Ed. 481, MABOABDIEB v. CHESAPEAKE IKS. 00.
Charter-party being mere contract of affreightment, freighter not liable
wherr owner of yessel retains command.
Approved in United States v. Hvoslef, 237 U. S. 16, Ann. Oas. 1916A,
286, 59 L. Ed. 820, 35 Sup. Ct. 459, holding void tax on charter-party;
Hahio V. Benedict, 216 Fed. 305, 132 C. C. A. 447, charter considered and
held to give charterer full control over navigation of vessel ; The Del Norte,
111 Fed. 544, holding charterer for terra cannot hold ship liable for malfeas-
ance of master; The Livingstone, 104 Fed. 924, holding charterer of vessel
for season became owner and is entitled to recover only one-half loss from
other colliding vessel ; Adams v. Carey, 60 Or. 159, 162, 118 Pac. 556, char-
ter held contract of affreightment; Grimberg v. Columbia Packers' Assn.,
47 Or. 264, 266, 83 Pac. 197, construing charter of vessel as contract of
affreightment and not demise; Reed v. United States, 11 Wall. 601, 20
L Ed, 220, where vessel was ordered by government to take cai^o, but
master was in command and possession, held, he and not the government
was the owner; Leary v. United States, 14 Wall. 611, 20 L. Ed. 756, if
owner retains command and possession, he is still liable as owner ; Shaw v.
United States, 93 U. S. 241, 23 L. Ed. 881, is to same effect; United States
V. Shea, 152 U. S. 187, 38 L. Ed. 406, 14 Sup. Ct 521, where government
was to have control of vessel for stated time, held to be only special owner ;
Donahoe v. Kettrell, 1 Cliff. 138, Fed. Cas. 3980, where owner is to furnish
^^^ and have control, it is mere letting; as also in effect Richardson v.
Wnsor, 3 Cliff. 399, Fed. Cas. 11,795; Webb v. Peirce, 1 Curt. 106, Fed.
yfis. 17^20, if master is to have possession and navigation of vessel, he is
}i^ble as owner ; Kleine v. Catara, 2 Gall. 76, Fed. Cas. 7869, holding if ship
i?.*^ be navigated at expetise of owner, charterer is not owner for voyage;
^^ V. Steamer Golden Gate, Newb. 314, Fed. Cas. 6492, if charterei-s
^o have possession and control, they are owners; as also in Eames v.
Vi^\a.Toc, Newb. 530, Fed. Cas. 4238 ; The Ship Panama, 01c. 362, Fed. Cas.
1^)103, holding agent purchasing ship and furnishing money not owner,
.|jough bill oi sale in his name ; The Schooner Volunteer, 1 Sumn. 568,
fed. Cas. 16,991, and Kerry v. Marine Co., 121 Cal. 568, 66 Am. St. Rep.
65, 54 Pac. 90, both holding general owner will be deemed owner for tho
voyage, notwithstanding charter-party if he retains control; as also in
Certain Logs of Mahogany, 2 Sumn. 595, 596, Fed. Cas. 2559; Ship
Nathaniel Hooper, 3 Sumn. 577, Fed. Cas. 10,032, and Palmer v. Gracie,
4 Wash. 120, Fed. Cas. 10,692 ; Perkins v. Hill, 2 Wood. & M. 165, Fed.
Cas. 10,987, holding freight should be paid to charterer, even if owner
mans vessel; The Aberfoyle, Abb. Admr. 250, Fed. Cas. 16, construing the
charter-party to be an affreightment for the voyage; T. A. Goddard, 12
8 Cr. 39-60
NOTES ON U. S. REPORTS,
614
/
Fed. 178, holding owners of a chartered vessel, retaining control of her
navigation, are liable to injuries to cargo, because of dangerous goods
taken aboard ; Scull v. Raymond, 18 Fed. 550, holding part owner excluded
from participation in management not liable for collision; L. L. Lamb,
31 Fed. 32, holding where owner went with vessel, but charterers were
. to pay crew, latter had lien on ship for wages; The Terrier, 73 Fed. 267,
holding where owner appoints officers and crew and retains control, he is
liable as owner; as also in Bramble v. Culmer, 78 Fed. 502, 42 U. S. App.
303, holding charterers not liable for loss of vessel through negligence of
pilot hired by them; Hayes- v. Campbell, 55 Cal. 425, 36 Am. Bep. 46,
holding owner of chartered vessel has lien on cargo; Slark v. Broom,
7 La. Ann. 341, holding owners liable; State v. Baltimore etc. Co., 13 Md.
. 189, holding general owner retaining possession and control is owner;
Pickman v. Woods, 6 Pick. 254, holding where charterer appointed master,
\ but owner victualed and manned her, latter had no lien; Adams v.
Homeyer, 45 Mo. 550, 100 Am. Dec. 393, where owner reserved rent but
gave up all control, charterer is owner for the term; to same effect Clark-
son v. Edes, 4 Cow. 476, 478, 480, holding general owner had lien on
freight; Hagar v. Clark, 78 N. Y. 51, holding charter-party a contract of
affreightment; Schooner Argyle v. Worthington, 17 Ohio, 465, where owner
furnished master and crew.
Liability of owner of hired vessel. Note, IS Am. Dec. 89.
Demise of vessel by charter-party. Note, 5 Ann. Oaa. 624*
To Justify abandonment for technical total loss for deterioration In Tmlna
of cargo, deterioration must be of moiety, excluding memorandum artiLcles.
Approved in Washburn etc. Mfg. Co. v. Reliance Ins. Co., 179 U. S. 10,
11, 16, 45 L. Ed. 56, 57, 59, 21 Sup. Ct. 3, 4, 6, construing memorandmn
clause and rider and holding no right to constructive loss existed, and
afBrming Washburn etc. Mfg. Co. v. Reliance Marine Ins. Co., 106 Ped.
117; Soelberg v. Western Assur Co., 119 Fed. 31, 32, holding mere proof
that cost of repair would exceed value of ship when repaired does not
prove either actual total or constructive total or partial loss; Moreaa v.
United States Ins. Co., 1 Wheat. 228, 4 L. Ed/ 78, declaring insurer of
memorandum articles is never liable for fotal loss, where part have reached
destination; Humphreys v. Union Ins. Co., 3 Mason, 443, Fed. Cas. 6871,
holding, even if all of one article is lost, insurers not liable for total loss
under memorandum clause; Robinson v. Insurance Co., 3 Sumn. 224, Fed.
Cas. 11,949, holding there must be total loss of cargo; Washburn v. Insur-
ance Co., 82 Fed. 297, holding underwriters not liable for constructive total
loss, under warranty against partial loss; Woodside v. Canton Ins. Office,
84 Fed. 284, where clause was construed as a severable contract, and
insured recovered for each article lost; Williams v. insurance Co., 54
Cal. 451, 35 Am. Rep. 79, holding total loss does not mean extinction;
Poole v. Insurance Co., 14 Conn. 60, holding that there was total loss,
where goods couldn't reach destination; Brooks v. Insurance Co., 4 Mart.
(La.) (N. S.) 641, holding under memorandum clause insurers are liable
only for a total loss; Brooke v. Insurance Co., 5 Mart. (La.) (N. S.) 636,
ei5 NOTES ON U. S. REPORTS, 8Cr.50^9
^, Holding that constructive loss is excluded in all memorandum articles ;
*Villard v. Insurance Co., >24 Mo. 666, holding there can be no recover}' on
^'cight insured against "total loss," in case of constructive total loss;
^aln v. Thompson, 9 Serg. & R. 120, 11 Am. Dec. 677, holding same as to
^^Jss of profits insured; Mayo v. India M. Ins. Co., 162 Mass. 176, 23
^ St. Rep. 817, 26 N. E. 81, Heebner v. Insurance Co., 10 Gray, 136,
^37, 69 Am. Dec. 310, 311, Citizens' Ins. Co. v. Glasgow, 9 Mo. 420 (416),
^^endo.
I>i8tinguished in Insurance Co. v. Fogarty, 19 Wall. 643, 22 L. Ed. 218,
molding machinery total loss, though of value as old iron.
When abandonment is necessary in order to claim total loss. Note,
1 E. B. 0. 45.
faster, beinx owner, cannot commit barratry.
-Approved in Wilson v. Insurance Co., 12 Cush. 365, 59 Am. Dec. 191, ♦
molding jnaster, part owner, cannot commit barratry.
Wliich of two or more is master of person conceded to be servant of
one. Note, 37 L. R. A. 67.
* ^- 60-62, 3 L. Ed. 484, HALL y. LEIGH.
Joix^t owners consigning goods, each giving direction for his share, may
'^^^luitlly sua consignee.
jj^J^J^Px'oved in Arnold v. Producers' Fruit Co., 128 Cal. 641, 61 Pac. 286,
^S contract between fruit company and several fruit growers was
jg.^^^1 so as to allow one grower to sue thereon; Shipman v. Mining Co.,
C ^* ^^^' ^^ ^* ^^ ^^^^' ^^ ^^P* ^*' ^^^' ^^®^® *^^'®® parties con-
j ^^ to ship coal, rendering separate bills, contract was held several;
^^. ^^^ V. Cunard, 3 Wood. & M. 321, Fed. Cas. 7310, holding separate
j^y^ ^ could be maintained, where there is separate interest and consider-
co//^ > Gray v. Buck, 78 Me. 478, 7 Atl. 16, holding same where one owner
^j^^^^'^^ all insurance on vessel; Parker v. Elder, 11 Humph, 548, holding
*^ one joint party has been paid, other may sue alone; Welch v. Insur-
Ho., 23 W. Va. 311, and^ Scott v. McKanney, 98 Mass. 348, arguendo.
S^^tinguished in Suydam v. Combs, 16 N. J. L. 136, holding where two "^
Jies delivered a Jiorse to be sold, their action for price was joint;
•pigas V. Robinson, 69 Vt. 689, 59 Am. Rep. 760, 8 Atl. 499, holding settle-
uient with one joint contractor is not a severance, unless all parties agree
to it.
8 Cr. 66^9, 3 L. Ed. 486, PLEASANTS v. MABYLAND INS. CO.
Extent of recovery on valued policy on property covered by ' other
policies. Note, 14 E. R. 0. 497.
What constitutes a valued policy, a|id conclusiveness of the valuation.
Note, 14 E. R. 0. 231.
Miscellaneous. Cited in Insurance Co. v. Sugar Ref. Co., 87 Fed. 494.
8 Cr. 69-71
NOTES ON U. S. REPORTS.
616
/
8 Ct. 59-66, 3 L. Ed. 487, McCAIiL V. MABINB INS. CO.
Liability of marine insurer for losses arising oat of war. Note,
6 B. B. G. 30.
8 Cr. 66-70, 3 L. EcL 490, SMITH T. EDBINOTON.
In Virginia, after-acquired realty does not pass under will, unless such was
clearly expressed intention of testator.
Approved in Crenshaw v. McCormick, 19 App. D. C. 500, and Bradford
V. Matthews, 9 App. D. C. 444, both holding will did not clearly devise
property acquired after its execution; Carroll v. Carroll, 16 How. 284,
14 L. Ed. 940, holding after-acquired lands did not pass ; Meador v. Sorsby,
2 Ala. 716, 36 Am. Dec. 433^ holding after-acquired land does not pass
by general devise ; Gibbon v. Gibbon, 40 Ga. 677, holding under code, after-
acquired land does not pass under will made before code ; Walton v.
Walton, 7 J. J. Marsh. 69, holding after-acquired slaves passed by will,
where it was testator's intention; Warner v. Swearingen, 6 Dana (Ky.)>
199, holding there was no intention to devise after-acquired realty; Flour-
noy v. Flournoy, 1 Bush (Ky.), 523, holding, if nothing in will to show
intention to devise after-acquired land, it will not pass; Williams v. Neff,
52 Pa. St. 335, holding where one devised all property to children, share
of child dying before testator went to heirs; Waterman v. Greene, 12
R. I. 485, query, whether statute applies to wills executed before its enact-
ment; Raines v. Barker, 13 Gratt. 131, 67 Am. Dec. 764, holding after-
acquired land did not pass.
Distinguished in Hardenbergh v. Ray, 151 U. S. 126, 88 L. Ed. 97, 14
Sup. Ct. 309, holding after-acquired lands did pass; Hardenbergh v. Ray,
13 Sawy. 165, 33 Fed. 817, and McClasky v. Barr, 64 Fed. 786, 787, 797,
holding after-acquired land passed under a clause devising "all his prop-
erty/'; Wynne v. Wynne, 23 Miss. 256, 57 Am. Dec. 142, holding after-
acquired land passed, though will was executed before passage of statute.
Devise of subsequently acquired property. Note, 135 Am. St. Bep.
796.
When after-acquired lands pass by will. Note, 57 Am. Dec. 144.
When appointment of "residuary legatee" will amount to gift of un-
disposed realty. Note, 5 B. B. G. 149.
8 Cr. 70, 71, 3 L. Ed. 491, BEALE v. THOMPSON.
Deposition opened out of court is inadmissible.
Cited in Roscius, Brown, 444, Fed. Cas. 12,042, refusing to admit deposi-
tion opened out of court ; Shankwiker v. Reading, 4 McLean, 241, Fed. Cas.
12,704, holding, if certificate does not state deposition was retained by
judge, it is inadmissible; Phelps v. City of Panama, 1 Wash. Ter. 616,
holding where clerk filed deposition without order of court, it was inad-
missible.
617 CLEMENTSON v. WIUJAMS. 8 Cr. 72-74
B Or. 72-71, 3 L. Ed. 491, CLEMZHT80H ▼. wtt.T.tamb
Ackiiowl«dgin«iit to lerlva de1>t miut go to fftct tnmt cl^lni Is atUl dii«.
Putnert statconent after dtaMdntloii, that be ha* not paid' debt U insnScieiit.
Approved in Johnson v, Gregg, 7 D. C. 145, holding replication need not
plead new promise to avoid plea of limitations; Hornblower v, Geoi^
Washington University, 31 App. D. C. 74, and Thompson v. Shepherd,
1 Mttckey (D. C), 388, both holding acknowledgment insufficient; Stubble-
field V. McAuUff, 20 Wash. 447, 55 Pac. 638, holding under 2 Hill's Code,
Motion 132, payments by husband without her authority do not extend
limitation statute gainst wife on joint mortgage; WetEell v. Bussard, 11
Wheat. 314, 6 L. Ed. 483, holding acknowledgment must be unqualified;
Thompson v. Peter, 12 Wheat, 567, 6 L. Ed. 731, holding acknowledgment
by personal representative will not revive debt; Bell v. Morrison, 1 Pet.
361, 7 L. Ed. 179, holding same as to acknowledgment of partner, after
dissolntion; Moore v. Bank of Columbia, 6 Pet. 91, 8 L. Ed. 331, holding
that in addition to acknowledgment there must be a promise to pay;
Shepherd v. Thompson, 122 U. S. 235, 236, 30 L. Ed. 1167, 7 Sup. Ct. 1231,
■^32, holding where intention of instruTnent was that property should
"* applied to debts, it did not revive personal liability; Nicholla v. War-
fi«'d, 2 Cr. C. C. 429, Fed. Cas. 10,234, holding conditional promise will
Hot revive debt; Jenkins v. Boyle, 2 Cr. C. C. 120, Fed. Cas. 7262, holding
'nat an acknowledgment accompanied with refusal to pay will not remove
T*'; Bispham v. Patterson, 2 McLean, 90, Fed. Cas. 1441, holding admis-
^Q of one partner, after dissolution, does not bind firm; in Wilson v.
*,''rbei.t, 3 Stew. 306, 21 Am. Dec. 63^, is to same ^effect; St. John v.
^^■o-w, 4 Port. 226, 29 Am. Dec. 281, admission that* liability exists held
'"^ei^nt; Crawford v. Childress, 1 Ala. 488, holding verbal acknowledg-
., *** -will notprevent its running against bond; Lowther v. ChappcU, 8
- 355, 42 Am. Dec. 643, holding admission of maker will not revive debt
„ ^^«inst surety; Biscoe v. Jenkins, 10 Ark. H6, holding part payment
"**i.e joint debtor will not revive debt as against other; Brown v. State
:, 10 Ark. 136, holding express written acknowledgment of its exist-
"SjiR.^ revives debt; Cooper v. Wood, 1 Colo. App. 106, 27 Pac. 886, holding
ao ackn owl element of surviving partner, made after death of copartner,
«ili revive debt against the estate; Lord v. Shaler, 3 Conn. 133, 8 Am. Dec.
161, holding its acknowledgment as a subsisting debt takes it out of the
atsfote; Bound v. Lathrop, 4 Conn. 339, 10 Am. Dec. 148, holding that
acknowledgment of one joint maker of note revives it as to all ; Marshall
V. DaUiber, 5 Conn. 486, holding an untrue declaration of payment not an
acknowledgment; De Forest v. Hunt, 8 Conn. 185, holding unqualified
Kknowledgment removes bar; Coit v. Tracy, 8 Conn. 277, 20 Am. Dec.
U3, holding an acknowledgment by joint debtor, long after their separa-
tion and for his advantage, will not remove bar; Dickinson v. McCamy,
S Ga. 488, 48 Am. Dec. 299, holding acknowledgment of note and claim
of discharge will not take case out of statute ; Dawson v. Qodkins, 28
Ga. 312, holding new promise is governed by same statute as original
teand; Chambers v. Garland, 3 Q. Greene, 323, holding a promise to pay
■nade to avoid litigation, not an acknowledgment; Penley v. Waterhousc,
8 Cr. 72-74 NOTES ON U. S. REPORTS. - 618
3 Iowa, 440, holding there must be an acknowledgment of a Babsistiog
debt, and a promise to pay it; Head v. Manner, 5 J. J. Marsh. 261, to
same effect; Perley v. Little, 3 Me. 101, holding a eonditional acknowledg-
ment insufficient ; Peavey v. Brown, 22 Me. 103, holding promise to renetv
note and appointing a time for it, a snf&ciont acknowledgment; John-
ston V. Hussey, 89 Me. 495, 36 Atl. 994, holding acknowledgment, by
statute, must be in writing; Lingan v. Henderson, 1 Bland Ch. £78, holding
an acknowledgment to take joint debt out must be equivalent to rene^val
by all; Stockett v. Locke, 8 Md. 380, holding acknowledgment of debt
and resistance of payment will not remove bar of statute; Bangs v. Hall,
2 Pick. 377, 13 Am. Dec. 442; Ten Eyck v. Wing, 1 Mich. 45, 46, 47;
Davidson v. Morris, 5 Smedes & M. 572, and McLean v. Thorp, 4 Mo.
259; E^ach v. Aslier, 20 Mo. A^. 660, holding part payment by trustee
does not arrest running of statute as to residue of debt; Farmer v.
Stewart, 2 N. H, 99, holding where there is a submission to arbitrators,
surety need not be notified of their sitting) Belles v. Belles, 12 N. J. L.
347, holding if anythii^ is said to repel the presumption of a promise to
pay, acknowledgment is insufficient; Oulick v. Turnpike Cd., 14 N. J. L.
548, holding defendant does not waive statute by setting up outlawed
accounts; Sands v. Gelston, 15 Johns. 521, holding submitting to arbitra-
tion, but denying claim, not a sufficient acknowledgment; Roosevelt v.
Ikfark, 6 Johns. Ch. 290, holding any payment or act of assignee insuffi-
cient to revive ; Stafford v. Bryan, 1 Paige Ch. 243, holding claim barred ;
Henry v. Root, 33 N. Y. 531, holding' infant's eiercising acts of ownership
over land after majority is ratification; Searight v. Craighead, 1 Penr.
& W. 138, holding acknowledgment by partner, after dissolution, does not
revive debt as against others; Fries v. Boisselet, 9 Serg, & R. 132, 11
Am. Dec. 685, holding a qualified acknowledgment insufficient; also Eckert
T. Wilson, 12 Se^. & R. 397; Levy v. Cadet, 17 Serg. & R. 129, 17 Am.
Dec. 653, holding acknowledgment by partner after dissolntion, does not
revive debt against others; Montgomery v. Montgomery, Rich. Eq. Cas.
76, holding claim barred; Russell v. Gass, Mart. & Y. 273, holding promise
to settle by the books of plaintiff is an insufficient acknowledgment ;
Steel V. Matthews, 7 Yerg. 315, holding part payment insufficient; Belote
V. Wynne, 7 Yeig. 541, holding admission with refusal to pay insufficient ;
Knhn v. Mount, 13 Utah, 115, 44 Pac. 1038, holding promise to pay on
contingency will, on proof the contingency has happened, bar the debt;
Hayes v. Morse, 8 Vt. 319, holding indorsement of payment insufficient;
Farmers' Bank v. Clarke, 4 Leigh (Va.), 606, holding conditional promise,
without performance of condition, insufficient; Aylett t. Robinson, 9
Leigh (Va.), 52, holding a promise "to settle," insufficient; as also in
Sutton V. Burruss, 9 Leigh (Va.), 384, 33 Ami Dec. 247; Rowe v. Mar-
chant, 86 Va. 131, 9 S. E. 996, where the acknowledgment waa held suffi-
cient ; dissenting opinion in Campbell v. Holt, 115 U. S. 632, 29 L. Ed. 488,
6 Sup. Ct. 215, and Beard v. Smith, 6 T. B. Mon. 491, both aiguendo ; Kegler
V. Miles, 1 Mart. & Y. 428, 17 Am. Dec. 821, Stubblefield v. McAuliff, 55 Pac.
638, holding payments on mortgage note by husband did not keep alive his
wife's original liability thereon.
619 NOTES ON U. S. REPORTS. 8 Cr. 75-93
DistingniBhed in Warner v.' AUee, 1 Del. Ch. 64, holding payments by
1 surviving partner take debt out of the atatnte.
Aeknowledgment or part payment taking debt out of statute of limi-
tations. Note, 16 E. R. 0. 177.
StatDte of llmitationa ii entlttod to nme raspect aa otlier statate, and
AMild not tM Bzidaliied away.
Approved in Knoedler V. Meloy, 2 McAr. (D. C.) 243, holding plea of
limitstions could not be atrieken out on affidavit that plaintiff had good
caasB of action; J. M. Arthur & Co. v. Bnrke, 83 Wash. 693, 145Pae.
97S, holding debt not revived by part payment made under circumstances
Bot showit^ clear intention to revive whole debt ; Whereatt v. Worth etc.,
108 Wis. 298, 84 N. W. 444, allowing amendment to demurrer to cure
plea of limitations.
Cited in United States v. Wilder, 13 Wall. 256, 20 L. Ed. 682, holding
statute of limitations is to be enforced; The Sam Sliek, 2 Curt. 485, Fed.
Cas. 12,282, holding court cannot except a case from statute; Merrill v.
Town of Montieello, 66 Fed. 166, holding action in constructive trust
barred ; Hale v. Lawrence, 21 N. J. L. 743, 47 Am. Dec. 206, holding where
ransB of action arose out of the State, and both parties were then non-
residents, it ia barred ; Faysoux v. Prather, 1 Nott & McC. 305, 9 Am. Dec.
\ 698, holding, when statute has b^nn to mn, no subsequent disability can
atop it.
BCt. ^5^i^ 3 L, Ed. 192, GEAOIE t. HASINE INS. CO.
Policy on gooda from Baltimore to Iieghoni la aatlsfled npou i«.iii»inr of
f>^ at Laiaretto mkder aaage of tnde.
Approved in dissenting opinion in Crew-Leviek Co. v. British etc.
ifarine Ins. Co., 103 Fed. 54, arguendo ; Hostetter v. Park, 137 U. S. 40,
« 1*. Bd. 672, 11 Sup. Ct. 4, holding touching at port out of course, if
''ifiin general usage, is no deviation; Constable v. Steamship Co., 154
,- S. 66, 38 L. Ed. 912, 14 Sup. Ct. 1068, holding berthing of ship at a
. pWl not her own is not a deviation; Mobile etc. Ins. Co. v. McMillan, 27
X\a- 102, holding port of New Orleans, in marine policy, means usual place
of landing goods on wharf at Lake Ponchartrain ; The Gazelle, 5 Hughes,
395, 11 Fed. 432, admitting evidence of usage in construing charter;
Bradstreet v. Heron, Abb. Adm. 211, Fed. Cas. 1792, construing bill of
lading; Hostetter v. Gray, 11 Fed. 181, and Devato v. Barrels of Plumbago,
20 Fed. 517, as to plac« of delivery; Mansur v. Marine Ina. Co., 12 Gray,
S24, ai^endo.
Distinguished in Hearn v. Insurance Co., 3 Cliff. 326, Fed. Cas. 6301,
holding evidence of usage inadmissible, when terms of policy are precise
and clear.
Time when marine insurance risk attaches. Note, 13 E. R. 0. &9S.
I Or. S4-93, 3 I.. Ed. 496, BIOHAKDS t. MABTIiAND INS. OO.
Falhire of executor of aaslgQee to proaecnte nit began 1)t
ibandoiunent, and UmltatlonB begins to run again.
8 Cr. 94-98
NOTES ON U. S. REPORTS.
620
Approved in American R. Co. v. Coronai^ 230 Fed. 547, holding cause
of action for death under Employers* Liability Act accrued only on apn
pointment of administrator; Dancnhower v. Ball, 8 App. D. C. 141, hold-
ing failure of executrix of party for sixteen months to suggest his death
amounted to abandonment of action; Lawrence v. Winifrede Coal Co., 48
W. Va. 142, 35 S. E. 926, holding statute ceases to run at date of issuance
of summons ; Bauserman v. Blunt, 147 U. S. 657, 37 L. Ed. 320, 13 Sup. Ct.
471, holding statute stopped by death of debtor for a reasonable time so
administrator may be appointed; Rhea v. Rhea, 54 Ala. 70, holding, unless
appeal is prosecuted within time allowed, it is barred; Doe ex dem. Cofer
V. Flanagan, 1 Ga. 542, holding statute does not run against administrator
until grant of letters; Adams v. Davis, 47 Ga. 341, declaring statute should
be construed strictly; Baker v. Baker, 13 B. Mon. 409, holding where
suit abates by death of party, under statute, it may be commenced again
within a year, such time being without the statute of limitations; Hernan-
dez V. Montgomery, 2 Mart. (La.) (N. S.) 433, prescription does not run
against him who cannot sue; Roilly v. Chouquette, 18 Mo. 226, holding
statute does not begin to run against a town until it is incorporated and
thus has capacity to sue ; Sanf ord v. Sanf ord, 62 N. T. 555, holding statute
will not cease running between death and grant of letters, except by
statute; Taylor v. Thorn, 29 Ohio St. 574, holding statute does not run
against creditors, after allowance of claims by executor; Barino v. M'Qee,
3 McCord (S. C), 453, where plaintiff was nonsuited for laches, his rig^ht
was held to be barred; Anderson v. Bedford, 4 Cold. 470, holding action
baiTed where suit was dismissed for champerty; Brown v. Brown, 14 Lea,
292, holding action not barred, where plaintiff cannot sue ; Beard v. Smith,
6 T. B. Mon. 491, arguendo.
Distinguished in Patterson v. Safe Deposit & Trust Co., 148 Fed. 790,
arguendo.
Statute of limitations against estate of decedent before administration
granted. Note, 65 Am. Dec. 594.
Miscellaneous. Cited in Louisville etc. R. R. Co. v. County Court, 1
Sneed, 670; Life Assn. v. Goode, 71 Tex. 97, 8 S. W. 640; Balch v. Blagge,
157 Mass. 148, 31 N. E. 765 ; Hoguet v. Wallace, 28 N. J. L. 526, construing
remedial statute liberally.
8 Cr. 94-98, 3 I.. Ed. 499, OBOWELL T. McFADOK.
Embargo ofllcer detaining yesBel in honest belief that thero was intention
to evade embargo law is not liable.
Approved in Otis v. Watkins, 9 Cr. 356, 8 L. Ed. 757, holding collector
honestly detaining vessel justified, without showing probable cause for his
opinion.
Distinguished in Bailey v. Berkey, 81 Fed. 741, holding assessor liable
for malicious excessive assessment; Campbell v. Thompson, 16 Me. 120,
holding justice of peace liable for detaining goods before issuance o£
complaint,
C2l NOTES ON U. S. REPORTS. 8 Cr. 98-154
' Ct SHO^ 3 I^ Ed. 500, BEATTT T. BUKNBS.
Aonrnpsit upon strtntory nmed? li u mndi wlUiln atatnto ■■ usimipsit
"Pni tonmuHi-iair cUlm.
Approved in Aldrich v. M'CIaine, 106 Fed. 793, holdiug suit to enforce
"itiooal bank atoekholder's liability is governed by Bal. Codes, §4800,
'"bd. 3; Campbell v. HaverhiU, 155 U. S. 619, 39 L. Ed. 283, 15 Sup. Ct.
^0, holding State statutes of limitation apply to actions for the infrlnge-
im"' "* letters patent; Michigan I. B. v. Eldred, 130 U. S. 696, 32 L. Ed.
'^l 9 Sup. Ct. 691, Metropolitan R. D. v. District of Columbia, 132 U. S.
J^. 38 It Ed. 286, 10 Sup. Ct. 24, Adams v. Davis, 47 Ga. 341 , Lightfoot
'■ ^olgreen, 13 Serg. & R. 401, Williams v. Williams, 5 Ohio, 446, and
'"moawick T. Co. v. National Bk., 88 Fed. 612, arguendo.
^*^tQt« of UmltatioiLi Is a statute of raposo.
^ '^PPi-o^ed in Lyuchbui^ etc. Mill Co. v. Traveler' Ina. Co., 140 Fed. 724,
*" insurance policy provides that action thereon is barred unless com-
"^^ "within thirty days after right of action accrues, conduct of com-
™ y ^n^ncing delay merely suspends operation of clause.
* '*■ '■O»-ii0, 3 I^ Bd. KM, HASTFOBD t. TTNTFED STATBa
'^^0«al by Invllcation Is n«Tsr presnnud, nnlMi nnaToldabla.
,[****"oved in Ban v. Columbus Southern By. Co., 117 Fed. 34, holding
■j^^.**i«'s lien law (Or. Laws 1885, p. 13), as applied to railroads was not
S ^'^'i by Laws 1889, p. 75; Chew Heong v. United States, 112 U. S.
^ J'*- L. Ed. 774, 5 Sup, Ct. 260, holding repeal by implication is never
VS^W.ed where both acta can stand ; as also in Hogan v. Ouigon, 29 Oratt.
r^^, Tlaries v. Creighton, 33 Gratt. 698, State v. Bowen, 38 W. Va. 98, 18
S. E. 377, and Cooke v. Ford, 2 Flipp. 32, Fed. Cas. 3173.
Fanalty for laadlntt Koodi Imported wltliout t, permit applies to goods
lAoM Importation la prohibited.
Distinguished in Jackson v. United States, 4 Mason, 190, Fed. Caa. '
7149, holding that vessel engaged in coasting trade ia not subject to
|)Ciialty for landing foreign goods without permit.
S Or. 110-154, 3 I>. Ed. S04, BROWN T. JTSTTED STATES.
Conrta may not adjudge confiscation of anea^'B property found bere Id
tline of war, without prevlons enaUlng act.
Approved in The Paqnete Habana, 175 TT. S. 710, 711, 44 L. Ed. S32,
20 Sup. Ct. 303, holding unlawful capture of fishing smack ofE Cuban
coast during Spanish war; dissenting opinion in Prize Cases, 2 Black, 687,
17 L. Ed. 483, majority holding vessel in blockaded port could be con-
fiscated; dissenting opinion in Sprott v. United States, 20 Wall. 468, 22
L. Ed. 374, majority holding purchaser of cotton from Confederate States
could not recover for its conliscation ; Conrad v. Waptes, 96 U. S. 284, 24
L. Ed. 722, holding until law provided for the condemnation of rebel's
land, conrta could not decree its confl scat ion ; Briggs v. United States, 143
U. S. 356, 36 L. Ed. 186, 12 Sup. Ct. 395, holdiug a certain act wna a sur-
8 Cr. 110-164
NOTES ON U. S. REPORTS.
622
render by United States of its rights to confiscate that kind of property;
United States v. Stevenson, 3 Ben. 120, Fed. Gas. 16,396, holding seizure
of enemy's property on land must be authorized by statute; as also in
United States v. One Thousand Seven Hundred and Fifty-six Shares of
Capital Stock, 5 Blatchf . 237, Fed. Cas. 15,961 ; Britton v. Butler, 9 Blatchf .
462, Fed. Cas. 1903, holding statute did not include money in hands of
drawees, where draft was captured; Seventy-eight Bales of Cotton, 1 Low.
16, Fed. Cas. 12,679, holding property abandoned by person engaged in
breaking blockade may be taken as prize; Wagner^ v. Schooner Juanita,
Newb. 368, 361, 363, 364, 366, Fed. Cas. 17,039, returning property con-
fiscated without authority of Congress; United States v. Bales of Cotton,
Woolw. 262, Fed. Cas. 16,683, holding captures on land are brought within
the prize jurisdiction only by statute; The Parkhill, 18 Fed. Cas. 1197,
holding power of confiscation lies in Congress; Norris v. Doniphan, 4 Met.
(Ky.) 391, 396, 399, holding act confiscating property as punishment for
treason, unconstitutional; dissenting opinion in Price v. Po3mter, 1 Bush
(Ky.), 389, majority holding capture of property for Confederate armjf
under military authority, excusable; Terrill v. Rankin, 2 Bush (Ky.), 459,
92 Am. Dec. 503, holding Confederate general had no right to seize money
in a bank; as also in Ferguson v. Loar, 5 Bush (Ky.), 691, holding same
upon similar facts; Kershaw v. Kelsey, 100 Mass. 567, 670, 97 Am. Dec.
130, 133, 1 Am. Rep. 147, 150, holding contract made during war, between
citizen and rebel, valid; Clark v. Mitchell, 64 Mo. 671, holding act of Con-
gress confiscating debts unconstitutional; Mutual Benefit L. Ins. Co. v.
Hillyard, 37 N. J. L. 466, 18 Am. Rep. 745, holding policy not forfeited
for nonpayment of premiums during war time; Cummings v. Diggs, 1
Heisk. 72, holding seizure of arms by Confederate ofHcer justifiable; State
V. Bank, 6 Baxt. 36, holding government cannot nullify contract between
rebels, which is in no way connected with the rebellion ; McVeigh v. Bank,
26 Gratt. 200, holding war does not ipso facto operate as a confiscation
of enemies* property; Ex parte Hunter, 2 W. Va. 142, holding pardon to
, rebels restores them to the rights derived from pardoning power; Hedges
V. Price, 2 W. Va. 231, 94 Am. Dec. 516, holding person liable for acts done
during rebellion ; Ex parte Quarrier, 4 W. Va. 219, 226, holding act requir-
ing attorney to take test oath is constitutional; dissenting opinion in
Chancely v. Bailey, 37 Ga. 647, 95 Am. Dec. 361, where majority held con-
tract to serve as substitute against United States was void.
Distinguished in dissenting opinion ii^^iller y. United States, 11 Wall.
316, 20 Jj. Ed. 148, majority holding act confiscating property of persons
doing overt acts of treason constitutional ; Burbank v. (jonrad, 96 U. S.
309, 24 L. Ed. 729, and United States v. Shares, 27 Fed. Cas. 337, where
property was confiscated under a statute.
Distinguished in The Manila Prize Cases, 188 U. S. 273, 47 L. Ed. 473,
23 Sup. Ct. 423, determining prize money in behalf of Dewey and his crew
taking part in battle of Manila Bay.
Oontracta with enemy, made during war, are void.
Cited in Coppell v. Hall, 7 Wall. 667, 19 L. Ed. 248, holding contract
between consul of neutral power and citizen of belligerent State to protect
<a3 THE RAPID. 8 IJr. 155-168
property in hostile territory void; Tait v. New York Life Ins. Co., 1 Plipp.
^ 312, Fed. Caa. 13,726, holding policy which indemuifles public enemy
■3 QBlawful; QrtBwold v. Waddington, 16 Johns. 476, holding partnership
■"'ween enemies dissolved.
PrlE« cues ar« governed bj mlea of MlmliUtT disclosed la Xngllsb
j^^Pproved in The Paquete Habana, 175 D. S. 710, 715, 44 L. Ed. 332, 334,
^ Sup. Ct. 303, 305, holding fishing smacks exempt from seizuro; Prize
b/^^, 2 Black, 671, 17 L. Ed. 477, holding President has right to institute
So ^^de of ports in poaaeasion of rebels; Prince Leopold, Blatchf. Pr. C.
^*»(J*'ed. Cas. 11,428, holding prize cases governed by rules of English
VH-^s ; Eila Warley, Blatchf. Pr. C. 207, Fed. Cas. 4371, One Thousand
Y- Hundred and Fifty-three Bags of Rice, Blatchf. Pr. C. 212, 213, Fed.
K ■ ^^'^3^> *""* Packard v. Sloop Lonisa, 2 Wood. & M. 52, Fed. Cas.
Vo,^2, as to juriadiction.
ElB&t to conascMe snemys propatty, wberemr found. Is tmdenlable.
Cited in Hanger v. Abbott, 6 Wall. 537, 18 U Ed. 942, collecting aothori-
ties and discussing the power geneiblly.
When property on land may be subject of prize. Note, 5 B. B. 0. 957.
Miacellaneoos. Cited in United States v. Bales of Cotton, Woolw. 250,
251, Fed. Cas. 16,583, noting that Story, J., reserved opinion on a question
of admiralty jorisdiction.
8 Or. 15&-168, 3 I^ Ed. 620, THE BAPID.
War stops all tateiconrsa as well u trade between dtlaena of hostile conii-
trlei.
Cited in Scholefield v. Eichelberger, 7 Pet. 693, 8 L. Ed. 796, holding
contract between enemies void; Hanger v. Abbott, 6 Wall. 535, 18 L. Ed.
941, holding war suspends statutes of limitations ; Coppell v. Hall, 7 Wall.
557, 19 h. Ed. 248, holding contract between consul oi neutral power and
enemy to protect property in hostile country void;' Phillips v. Hatch, 1
Dill. 577, Fed. Cas. 11,094, holding contract with rebel void; The JJ ark
Cois, Ncwb. 391, 399, Fed. Cas. 3113, holding war stops all commercial
intercourse between citizens of belligerents; The Planters' Bank v. St.
John, 1 Woods, 588, 589, Fed. Cas. 11,208, holding declaration of war dis-
solves partnership between citizens of hostile States; Tait v. New York
Life Ins. Co., 1 Flipp. 310, Fed. Cas. 13,726, holding policy whieb indem-
nifies a public enemy agaiiyst loss in time of war is unlawful; United
States V. One Hundred Barrels of Cement, 27 Fed. Cas. 293, holding there
can be no intercourse between enemies, except by special license; Tarleton
T. Bank, 49 Ala. 235, holding bill of exchange void when drawn between
cities between whom intercourse is prohibited ; Worthington v. Insurance
Co., 41 Conn. 413, 19 Am. Bep. 508, holding nonpayment of premiums dur-
ing war discharges policy; Perkins v. Refers, 35 Ind. 145, holding contracts
made during war void; Berry v. Bank, 2 Duv. (Ky.) 381, holding war
8 Cr. 165-168
NOTES ON U. S. REPORTS.
624
renders presentment of bill unnecessary; Durden v. Smith, 44 Miss. 553,
holding after war is begun, all trade between citizens of belligerents is
unlawful; Shacklett v. Polk, 51 Miss. 391, holding contract made during
war, but providing for licenses, is valid ; dissenting opinion in De Jamette
V. De Giverville, 56 Mo. 457, majority supporting sale of land, though owner
was within Confederate lines; Griswold v. Waddington, 16 Johns. 477,
499, 500, holding war stops all commercial intercourse between the nations ;
Cohen v. Insurance Co., 50 N. Y. 617, 10 Am. Rep. 527, holding nonpay-
ment of premiums during war merely suspends policy; Dillard v. Alex-
ander, 9 Heisk. 723, holding war stops commercial intercourse between
citizens of belligerents; Lacy v. Sugarman, 12 Heisk. 360, holding bill of
exchange void; dissenting opinion in Manhattan Life Ins. Co., v. War-
w^ick, 20 Gratt. 654, majority holding policy void for nonpayment of
premium during war; McVeigh v. The Bank, 26 Gratt. 841, holding note
made by person within Confederate lines, to be discounted within Union
lines, void; Caldwell v. Express Co., 1 Flipp. 89, 90, Fed. Cas. 2303, hold-
ing, where carrier was prevented by war from delivering goods, he becomes
a bailee, and is liable for value of goods at close of war, when demand
was made.
Distinguished in Kershaw v. Kelsey, 100 Mass. 666, 667, 97 Am. Dec.
ISO, 1 Am. Rep. 147, holding lease between a citizen of Massachusetts and
of a rebel State, of plantation in latter State, is valid.
In time of war, goods of enemy are subject to conflscatioiL
Cited in The Alexander, 8 Cr. 179, 3 L. Ed. 528, holding vessel leaving
enemy's country for this, lawful prize; as also in The Joseph, 8 Cr. 454,
3 L. Ed. 622, and Jecker v. Montgomery, 18 How. 114, 15 L. Ed. 312,
holding property captured on high seas, intended for enemy's port, is law-
ful prize; The William Bagaley, 5 Wall. 405, 18 L. Ed. 589, holding
property left in enemy's country subject to confiscation; Burbank v.
Conrad, 96 U. S. 301, 302, 24 L. Ed. 727, holding, by confiscation, the
government acquires, only the actual interest of the party ; The Sarah Starr
V. The Aigburth, Blatchf. Pr. 74, Fed. Cas. 12,352, holding property of
neutral trading in belligerent port subject to confiscation; The Hannah M.
Johnson, Blatchf. Pr. 162, Fed. Cas. 6031, holding master had no claim
against property condemned for wages; The Diana and Cargo, 2 Gall. 98,
Fed. Cas. 3876, holding vessel sent to enemy's country a lawful prize;
The Wando, 1 Low. 21, Fed. Cas. 17,140, holding corn belonging to neutral,
in vessel taken, is liable to condemnation; United States v. The F. W.
Johnson, 25 Fed. Cas. 1232, holding wrecking vessel taking cargo from
neutral vessel wrecked on hostile shore not subject to condemnation.
Distinguished in Amory v. M'Gregor, 15 Johns. 36, 8 Am. Dec. 208, hold-
ing citizen of one belligerent may withdraw his property from enemy"*s
country within reasonable time after war is declared.
Loss by capture under hostilities subsequently arising as risk not
insured against. Note, 14 E. R. C. 137.
Miscellaneous. Cited incidentally in dissenting opinion in Mutual Ben-
efit Life Ins. Co. v. Hillyard, 37 N. J. L. 492.
625 NOTES ON U. S. REPORTS. 8 Cr. 169-203
B Cr. 169-180, 3 L. Ed. SZi, THE AI.EZANDEB.
Ammlcan TSiBel carirlng on commeico wttk enemr Is nibj«ct to confUc»-
tlan.
Cited in The Joseph, 8 Cr. 454, 4 L. Ed. 622, condemning vessel for
eondact in former part of voyage; The Diana and Cargo, 2 Gall. 98, Fed.
Cbs. 3876, holding shipment after declaration of war ill^al.
Enemy goods shipped before commencement of hostilities as subject
of maritime prize. Note, Ann. Cas. 1916B, 7S7.
1^. 181-203, 3 I.. Ed. 628, THE JULIA.
War rettdeiB Illegal all commercial Interconrae betwoen dtlzena of hoitUe
omniSles.
Approved in The Adula, 176 U. S. 379, 44 L. Ed. 513, 20 Sop. Ct. 439,
holding notice of blockade to charterer of neutral vessel though he be an
enemy is notiee to vessel; Watts, Watts & Co. v. ITnione Anstriaca Di
Navigazione, 224 Fed. 193, holding contract between subjects of belliger-
ents not enforceable in courts of neutral; The Planters' Bank t. St. John,
1 Woods, 589, Fed. Cas. 11,208, holding war dissolves partnership between
citizens of hostile States; Worthington y. Insurance Co., 41 Conn. 414,
19 Am. Rep. 609, holding nonpayment of premiums during war discharges
policy; dissenting opinion in De Jamette v. De Giverville, 56 Mo, 456,
holding equity will not interpose to set aside sale of land made while party
was within Confederate lines; Griswold v. Waddington, 16 Johns. 480,
505, 506, 509, war dissolves partnership between citizens of belligerents;
dissenting opinion in Manhattan Life Ins. Co. v, Warwick, 20 Gratt. 653,
majority holding policy void for nonpayment of premium during war;
McVeigh V. The Bank, 26 Gratt. 841, holding note made between one in
Confederate lines, to be discounted within Union lines, void; Caldwell t.
EipresB Co., 1 Flipp. 90, Fed. Cas. 2303, holding where carrier was pre-
vented by war from delivering goods, he becomes a bailee, and is liable
for value of goods at close of war when demand is made.
Distitogoisbed in dissenting opinion in The Adula, 176 U. S. 396, 44
L. Ed. 619, 20 Sup. Ct. 446, majority holding that notice of blockade
to charterer of nentral vessel, though he be an enemy, is notice to vessel.
Sailing nnder license Issued bj enemr, and In ftutlieruice of enMUf's
int«rest, subJectK American «hip to captnie aa prise.
Approved in The Aurora, 8 Cr. 219, 3 L. Ed. 641, holding use of enemy's
license to a neutral port is illegal; The Hiram, 8 Cr. 449, 3 h. Ed. 620,
condemning vessel, whose object to supply enemy with provisions while
not e]q)ressly stated in the license, was plainly inferable; Coppell \. Hall,
7 Wall 558, 19 L. Ed. 248, holding intercourse within military lines could
be licensed only by president; dissenting opinion in Burbauk v. Conrad,
96 n. 8. 302, 24 L. Ed. 727, holding government, by confiscation, acquires
only actual interest of possessor; Maisonnaire v, Keating, 2 Qall. 336, Fed.
Cas. S978, declaring that provisions destined to port of equipment of
enemy rendered vessel and cai^o liable to confiscation; The Alliauee,
\
8 Cr. 203-229
NOTES ON U. S. REPORTS.
626
Blatchf. Pr. 264, Fed. Cas. 245, holding sailing under enemy's license
is illegal; The Gondar, Blatchf. Pr. Cas. 268, Fed. Cas. 5526, condemning
vessel for having an export license from enemy; Schooner Amado, Newb.
404, Fed. Cas. 12,005, holding vessel sailing under enemy's flag liable to
seizure; Craig v. Insurance Co., 1 Pet. C. C. 416, Fed. Cas. 3340, and
Chauncey v. Yeaton, 1 N. H. 156, holding sailing under enemy's license
is illegal ; Tait v. New York Life Ins. Co., 1 Flipp. 309, Fed. Cas. 13,726,
holding policy void indemnifying public enemy against loss in time of
war; Colquhoun v. Insurance Co., 15 Johns. 353, holding policy providing
that vessel should have enemy's license aboard void.
8 Or. 203-221, 3 L. Ed. 536, THE AURORA.
Americasi vessel using enemy's license on voyage, in furtherance of
enemy's interest, is liable to confiscation.
Approiied in The Adula, 176 U. S. 379, 44 L. Ed. 513, 2(4 Sup. Ct. 439,
holding notice of blockade to charterer of neutral vessel is notice to vessel
though charterer be an enemy; Craig v. Insurance Co., Pet. C. C. 416,
Fed. Cas. 3340, following rule; Colquhoun v. Insurance Co., 15 Johns. 353,
holding policy void, which provided that vessel should have enemy's license
aboard.
Distinguished in dissenting opinion in The Adula, 176 U. S. 396, 44
L. Ed. 519, 20 Sup. Ct. 445, majority holding that notice of blockade to
charterer of neutral vessel is notice to vessel though charterer is enemy;
The Sarah Starr, Blatchf. Pr. 85, Fed. Cas. 12,352, holding vessel carrying
clearance papers issued by enemy is not subject to confiscation — these
papers do not profess to protect her. "^
8 Or. 221-229, 3 la. Ed. 542, THE ADVENTURE.
To accomplisb donation by captor to nentral, condemnation by Judicial
tribunal is first necessary.
Cited in dissenting opinion in The Siren, 7 Wall. 163, 19 L. Ed. 134,
majority holding United States acquired title at time 6f capture; Seventy-
eight Bales of Cotton, 1 Low. 17, Fed. Cas. 12,679, holding title of captors
not vested until condemnation; The Schooner Tilton, 5 Mason, 471, Fed.
Cas. 14,054, holding in cases of salvage court can decide title ; The Park-
hill, 18 Fed. Cas. 1192, arguendo.
Distinguished in Russell v. Forty Bales of Cotton, 21 Fed. Cas. 44,
which was a case of derelict.
Amount of salvage depends upon circunustances.
Cited in The Astrea, 1 Wheat. 128, 4 L. Ed. 52, applying rule; The
Connemara, 108 U. S. 359, 27 L. Ed. 753, 2 Sup. Ct. 758, refusing to alter
decree of salvage where excess was not unreasonable; Rover v. Brig, 1
Mason, 377, Fed. Cas. 12,093, declaring rule of salvage in causes of derelict
is a flexible rule yielding to circumstances; McGinnis v. Pontiac, 5
McLean, 367, Newb. 137, Fed. Cas. 8801, declaring there is no fixed rule,
allowing a fixed sum; The Philah, 19 Fed. Cas. 495, and Western Transp.
/
627 GREEN v. LITER. 8 Cr. 229-251
Co. y. Great Western, 29 Fed. Cas. 789, upon the general question of
emnpensation for salvage.
Alien enemy cannot me or be claimant in conrta of belligerent c^ttoia,
Cited in United States t. One Hundred Barrels of Cement, 27 Fed. Cas.
294, holding citizens of rebellious State cannot sue in United States courts; ^
Perkins v. R<%era, 35 Ind. 145, 9 Am. Bep. 655, holding statute ot limita-
tiona was suspended daring war.
> Cr. 229^251, 3 I.. Ed. 545, GKEBN- r. U.TBB.
Penons rfatmiiig distinct parcels of iKnd by distinct titled cHuwt bo
Jolnad In a writ of rlcht.
Cited in Harris v. Preston, 10 Ark. 209, applying rule.
Diatingnished in South Park Commrs. v. Gavin, 139 111. 285, 28 N. E. 827,
holding actual occupant and a person claiming any interest in land may,
under the statute, be joined aa defendants in action of ejectment.
Seisin of on* entering 'with tltl* Is coextenatve wlfb title, and la not
limited to part actnally oocnpled.
Approved in John T. Hoore Planting Co. v. Morgan's Louisiana etc.
S. S. -Co., 126 La, 889, 53 South. 38, holding constructive possession of
owner prevailed over constructive possession of another holding by title
a non domino; Hunt v. WicklifCe, 2 Pet. 212, 7 L. Ed. 401, holding that
party with better right is in constructive possession of all land not actu-
aUy occupied by another; Peyton v. Smith, 5 Pet. 493, 8 L. Ed. 203, where
one entering without title afterward attorns to holder of legal title, his
actual possession becomes the actual possession of the latter of the entire
tract described in patent, from the moment of entry; Clarke v. Courtney,
5 Pet. 354, 8 L. Ed. 153, holding possession is coextensive with title, though
deed be defective; United States v. Arredondo, 6 Pet. 743, 8 L. Ed, 566,
holdii^ words "in possession of land" in treaty do not require actual
MeQpancy; as also in Mitchell v. United States, 9 Pet. 735, 9\L. Ed. 292;
Clymer v. Dawkins, 3 How. 690, 11 L. Ed. 786, if tenant in common enter
"" part of the land, under a partition, claiming that part in severalty,
*'* possession is adverse to cotenants, though partition be invalid ; Shepley
f- Aangely, 2 Ware, 248, Fed. Cas. 12,756, holding entry good to foreclose
n« AoQa^ was also good to foreclose the lot ; Shepley v. Rangelcy, 1 Wood.
tJ*- ai6. Fed. Cas. 12,707, holding entry on one piece of land to fore-
Jf*® tiortgage covering several pieces is good for all; Ledbetter v, Fitz-
^~^'*1, 1 Ark. 452, holding a party need not be in actual possession to
jlJ*ta.in trespass; Conway v. Kinsworthy, 21 Ark. 17, and Wi^ns v.
lua-^* ^^ ^^^' '^' ""^ holding t^al title to lands is constractively in pos-
r***^K* of them; Hicilks v. Coleman, 25 Cal. 135, 85 Am. Dec. 114, holding
^«»tering on a portion of a tract of land under a deed describing all
!j'^*-*"ea possession to the entire tract ; Unger v. Mooney, 63 Cal. 593,
'^***.. Bep. 105, a holding under deed of tenant in common, purporting to
•^^^^y the whole, is hostile; Rangely v. Spring, 28 Me. 157, holding an
^^ *i' on one of the parcels mentioned in the mortgage suffices; James v.
8 Cr. 229-251
NOTES ON U. S. REPORTS.
528
Rowan, 6 Smedes & M. 402, holding possession of one joint owner is
deemed the possession of both unless there be evidence of an ouster;
Cattle V. Sydnor, 10 Mo. 770, declaring that actual possession is the only
adverse possession as against the true owner in possession of part; Smith
V. Hitchcock, 38 Neb. 109, 56 N. W. 792, holding that one occupying con-
/ currently with owner does not occupy adversely ; Towle v. Ayer, 8 N. H. 59,
defining disseizins; Miller v. Shaw, 7 Serg. & R. 144, holding that one
claiming adversely without color of title acquires what he actually occu-
pies; Garrett v. Ramsay, 26 W. Va. 351, 359, 364, holding that second
patentee only acquires possession of what he actually occupies; as also in
Ilsley V. Wilson, 42 W. Va. 770, 26 S. E. 555 ; Strother v. Lucas, 12 Pet.
454, 456, 9 L. Ed. 1154, 1155; Koiner v. Rankin, 11 Gratt. 427, 428, deciding:
that junior patentee settling outside of the interlock does not acquire
possession of land within interlock; Boone v. Chiles, 10 Pet. 224, 9 L. £d.
405; Norris v. Haggin, 12 Sawy. 58, 28 Fed. 283, and Harris v. McGovem,
99 U. S. 167, 25 L. Ed. 819, in considering what adverse possession will
set statute of limitations in motion.
Covenants of seisin. Note, 125 Am. St. Rep. 448, 451, 452.
Necessity for color of title, not expressly made a condition by stat-
ute, in adverse possession. Note, 15 L. R. A. (N. S.) 1242-1245.
Under patent^ title paases wltli delivery of instnunent.
Approved in United States v. Schurz, 102 U. S. 399, 26 L. Ed. 173, hold-
ing delivery of patent not necessary to pass title; Doe v. Eslava, 9 How.
447, 13 L. Ed. 210, holding confirmation by Congress passes fee withont
patent ; Fletcher v. Fuller, 120 U. S. 551, 30 L. Ed. 764, 7 Sup. Ct. 676,
holding adverse possession is equivalent to deed in evincing ownership;
Oilman v. Brown, 1 Mason, 212, Fed. Cas. 5441, holding grant by State
conveys seisin; Stokes v. Dawes, 4 Mason, 272, 274, Fed. Cas. 13,477, hold-
ing commonwealth retains seisin until title is lawfully parted with; Barr
V. Galloway, 1 McLean, 480, Fed. Cas. 1037, holding formal entry unneces-
sary in case of wild lands ; Le Roy v. Clayton, 2 Sawy. 496, Fed. Cas. 8268,
and Le Roy v. Jamison, 13 Sawy. 391, Fed. Cas. 8271, holding delivery of
patent not essential to vesting of title ; Potts v. Gilbert, 3 Wash. 478, Fed.
Cas. 11,347, holding grant from State passes legal possession to grantee;
Barclay v. Plant, 50 Ala. 521, holding a deed by party in possession equi-
valent to livery of seisin ; McDaniel v. Grace, 15 Ark. 483, holding title to
wild lands draws to it the possession; Wood v. Mansell, 3 Blackf. (Ind.)
130, holding if land is not held adversely, bargainee may bring trespass
without entering; Breckenridge v. Ormsby, 1 J. J. Marsh, 244, 19 Am.
Dec. 78, holding deed executed and delivered passes complete title; Ward
V. Fuller, 15 Pick. 192, holding devisee of vacant land may maintain
writ of right without an entry; Smith v. Dennett, 15 Minn. 88, holding by
statute deed passes complete title ; Washburn v. Cutter, 17 Minn. 367, hold-
ing owner of wild lands has constructive possession, unless there be an
adverse possession ; McKinney v. Bode, 33 Minn. 453, 23 JST. W. 853, hold-
ing patent is conclusive evidence of l^gal title; Redns v. Hay den, 43 Miss.
<!2J QEEEN V. IJTEE.* 8 Cr. 229-251
^> holding ownership drawa possession, unless there ia an adverse oc-
cnp»ni; Tush-Ho-Yo-Tubhy v. Barr, 45 Miaa. 193, holding ownership draws
*?*se3aion; Gale v. Davis, 7 Mo. 547, holding patent gives right of posses-
^ii'i Reaome v. Chambers, 22 Mo. 54, holding actual seisin not necessary
** entitle husband to curtesy ; Dreyer v, Ming, 23 Mo, 437, holding patentee
- ^t in actual possession may maintain trespass; North Pac. R. B. Co. v.
*'»ior3, 5 Mont. 126, 2 Pac. 326, holding grant o£ Congress imports
- 'i^eiy of seisin ; Greely t. Steele, 2 N. H. 235, holding covenant of seisin
"ot broken if grantor had title or possession; Enfield 7. Permit, 8 N, H.
°-^^, 31 Am. Dec. 208, holding grant by legislature vests actual seisin; as
J^o in Enfield v. Day, 11 N. H. 529; Bradstreet v. Clarke, 12 Wend. 678,
7^^ folding that legal title without actual seisin, will maintain a writ of
«■«( aa to vacant lands, probably as to other land; Vanderheyden v. Cran-
^.' ^ I)enio, 21, declaring constructive seisin equivalent to actual seisin ;
f^'Uaon V. Betts, 4 Denio, 209, holding grantee of wild lands can maintain
^»t of right, thongh never in actual possession; Jenkins v. Fahey, 73
'^■, *- 363, holding where there is a vested remainder in fee there is a
VtTsirt i^ law; Holt v. Hemphill, 3 Ohio, 237, 238, holding delivery of deed
'""^^^^led as giving possession; Lowry v. Steele, 4 Ohio, 171, holding,
vhwe -^ife before marriage leased land, husband had constructive seisin;
^ "V". Summers, 2 Or. 267, holding present grant from United States
P^«a title at. once; Dolph v. Barney, 5 Or. 202, holding grant from State
rader- "'Donation Act," passes a fee sobject to conditions snhsequent; Mc-
"'^'W' -v. Bookman, 3 Hill; 267, maintaining action of trespass where plain-
»i! had title, but had never entered; Withers v. Jenkins, 14 S. C. 611,
Mraiiig constructive seisin of trust estate will not give curtesy; Peeler v,
^"•"ria, 4 Yerg. 344, holding that patent passes complete title; Horton v.
*^W«crd, 10 Tot. 388, holding title draws to it the legal seisin; Whitehead
f- Foley, 28 Tex. 283, on reconsideration, 289, deciding that legal title
^■w-a to it possession; Chandler v. Rushing, 38 Tex. 597, holding one giv-
1"? ^>Z> actual possession loses constructive possession of remainder; Rob-
""*>*«. "v. Douglas, 2 Aiken, 368, where land is held adversely deed does not
tsrry- possession; Dickinson v. Hoomes, 8 Qratt. 429, holding entry not
"wessary in case of wild lands; Bell v. Snyder, 10 Gratt. 354, 355, de-
'nandanj.g claiming under seisin of ancestor must prove themselves the
'"^ ; HoUoran v. Meisel, 87 Va. 401, 13 S. E. 34, holding grant of com-
p^^^^alth confers seisin in deed, without entry; Strothers v. Lucas, 12
- * * ^4o, 9 L. Ed. 1152, respecting livery of seisin at common law, in hold-
j^,^**flRoient solemnities required by Spanish law. ,
, ri\^ti»guished in Bell v. Peabody, 63 N. H. 239, 240, 66 Am. Rep. 608,
'^^^■tie that a deed is not evidence of seisin even of wild lands ; Farris v.
^^^», 9 Or. 85, holding failure of wife to allege possession was fatal to
* * *«tion; also in Tucker v. Trustee of Rochester, 7 Wend. 254.
^^^imadlctlon attaclies wliere value ot pn^wrtj demanded excveds five hnn-
^^^ 4.oUara altbongh plainttfl recover less.
approved in Way v. Clay, 140 Fed. 355, in ejectment in Federal court
''^ Recover land alleged to be valued at over two thousand dollars, jnrisdic-
8 Cr. 229-261
NOTES ON U. S. REPORTS.
630
tion not ousted by disclaimer of all except tract of less value; Tennent-
Stribling Shoe Co. v. Roper, 94 Fed. 743, holding court is not deprived of
jurisdiction where striking out of one of several accounts reduces amount
below jurisdictional limit; Withers v. Hopkins Place Sav. Bank, 104 Ga.
95, 30 S. E. 768, holding cause removable when result of judgment prayed
for would be to vest title in plaintiff without making payment of two
thousand two hundred dollars which payment defendant claimed was essen-
tial to plaintiff's title ; Kanouse v. Martin, 15 How. 208, 14 L. Ed. 664, '
holding if amount demanded exceed jurisdictional amount, defendant has
right to remove the action; to same effect, Simon v. House, 46 Fed. 318, in
determining value of matter in dispute; Adams v. Douglas County, 1 Fed.
Cas. 108, McCahon, 241, holding tax to be paid by complainant must equal
jurisdictional amount; Kohl v. United States, 91 U. S. 375, 23 L. Ed. 452,
holding writ of right is a "suit" of which Circuit Court has jurisdiction;
Ringgold's Case, 1 Bland Ch. 24, in determining value of "matter in dis-
pute"; Barber v. Kennedy, 18 Minn. 226, and Crawford v. Burnham, 1
Flipp. 117, Fed. Cas. 3366, holding amount laid in declaration is amount
in controversy; State v. Dolby, 49 N. H. 487, 6 Am. Rep. 591, holding al-
legation of .value in complaint governs question of jurisdiction, and not
the value as found at the trial.
Where plaintiff demands jurifldictional amountf, bnt recovers less, costs
are In the discretion of court.
«
Approved in Liquidating Commrs. etc. v. Tax Collector et al., 106 La.
135, 30 South. 308, holding commission of ten per cent upon amount of
taxes to be collected allowed by statute to attorney representing tax col-
lector, and to be paid by unsuccessful tax register, is costs; dissenting
opinion in Gulf etc. Ry. Co. v. Ellis, 165 U. S. 166, 41 L. Ed. 672, 17 Sup. Ct.
261, majority holding act giving costs against railway company, if plaintiff's
previously filed claim was rejected and he recovered more, unconstitutional ;
Greene v. Bateman, 2 W. & M. 364, Bed. Cas. 5762, refusing to give costs to
defendant, where 43laintiff recovered less than jurisdictional amount;
Abbott V. Gatch, 13 Md. 335, 71 Am. Dec. 643,. following rule.
Denied in McCarthy v. American Thread Co., 143 Fed. 680, Circuit
Court cannot compel payment of costs by plaintiff recovering less than
five hundred dollars, unless damages laid in declaration in excess of two
thousand dollars merely to give colorable jurisdiction; Streeter v. Connec-
ticut etc. R. R. Co., 65 N. H. 202, 18 Atl. 651, holding court may decide
whether amount is sufficient.
Demandant, in a writ of right, may recover leas tliaa his writ demands.
Cited in Shaefer v. Gates, 2 B. Mon. 454, 38 Am. Dec. 166, holding de-
mandant, in a writ of right, may recover the proportionate interest to
which he shows title.
Statute reforming writ of right did not affect right to plead in abatement.
Cited in Henry v. Thorpe, 14 Ala. 109, holding writ of right not abolished
by statute abolishing ejectment; Gaines v. Conn, 2 J. J. Marsh. 105, and
^ CARTER V. CUTTING. 8 Cr. 251-253
.."^ T. MeKee, 2 J. J. Marsh. 372, holding pleas in abatement are still
"""tble to writ of right.
^oatnxart la a good plea in abatement to a writ of right,
^ "fed in Fiedler v. Caipenter, 2 Wood. & M. 214, Fed. Caa. 4759, hold-
fA, . '^ to most real actions in Massachusetts, nontenure is a good plea,
^■f'*» bar or abatement; Smith v. WiKi". 48 N. H. 110, holding if writ
'^'' be brought against one not seized of the freehold, he can plead
•*a-^; Whidden v. Proctor, 17 N. H. 94, arguendo.
'*«(^
^mi
3n third person la not dofenfle- In a writ of rlfflit.
I'D^ V- :i^l^Tushed in Green v. Watkins, 7 Wheat. 29, 31, 5 L. Ed. 389, Boll-
f,„ldin^^^^yoT, 3 Rand. 570, 582, and Dawson v. Watkins, 2 Rob. (Va.) 268,
bct*^^ * ~where demandant relies on constmctive seisin, tenant may show
, ^ ~^;^ title in another; Inglis v. Trustees etc., 3 Pet. 133, 172, 188, 7
''(j^s. ^29, 643, 648, holding in writ of right tenant may, on the issue
* ^^et up title in third person.
^^^Tsyance of vacant land glvea ctHistructlTe leislm and attaches all legal
remedies incidental to the estate.
Approved in Graves v. Ashbum, 2l5 V. S. 334, 64 L. Ed. 221, 30 Sup.
Ct. 108, holding possession of nnineloscd woodland assumed to follow title;
Ucroix V. Malone, 157 Ala. 444, 47 South. 729, where there was no one to
' whom notice of change of character of possession could be griven, per-
missive possession after death of trustee and before appointment of new
trustee was not adverse.
A role ceawa where Qie reason therefor ceaaea.
approved in diss«iting opinion in United States ▼. International Har-
'ester Co., 214 Fed. 1005, majority holding harvester company was eom-
binalion in restraint of trade.
-XiHcellaneous. Cited in Katz v. Walkinshaw, 141 Cal. 124, 74 Pac. 767,
„f,S California did not adopt, as part of common law, rule that owner
f> "d Was absolute owner of percolating waters beneath surface of land ;
j^^^ouia V. Northcut, 3 Or. 399, setting aaide patent on ground title has
j^ ady passed from United States; Johnson v. Towsley, 13 Wall. 88,
V ^^ 487. See 2 Neb. 490; Sperry v. Sperry, 8 N. H. 480, and Col-
^ ^- Holland, 14 Rich. Eq. 229.
■ *•* 1-253, 3 L. E*: 653, OABTEB T. OUTTINa.
'^^Itate of foielgn will In domeatlc comt is not void, hut ma7 he Toldable.
j^^^-Oved in Schultz v. Scholtz, 10 Gratt. 379, 60 Am. Dec. 348, holding
jr^^'^*lt of court admitting two wills to probate, is not subject to col-
^'- attack. ,
^^^XMal liM to Snpreme Oout, In the mattM of the probate of a wilt In
^^^t of OolnmbU.
^l*j-oved in Winslow v. Baltimore etc. R. Co., 28 App. D. C. 138, holding
'""^ lad jurisdiction of appeal from Snpreme Court of District of
8 Cr. 253-317 NOTES ON U. S. REPORTS. 632
Colnmbia in condemnation proceedings by railroad; Railroad Co. t. Churcli,
19 Wall. 64, 22 L. Ed. 98, holding appeal lies to United States coart, al-
though by statute of Maryland, aa construed by State courts, it would not ;
Orraaby v. Webb, 134 U. S. 54, 53, 59, 33 L. Bd. 809, 810, 811, 10 Sup. ijt
481, 482, holding Circuit Court must determine validity of probate of a
will, if required.
Appealable judgments or orders in probate or administration proceed-
ings. Note, Ann. Caa. 19130, 856.
Miscellaneons. Cited in Cleveland v. Quilty, 128 Mass. 580, upon right
to annal probate.
B Or. 263-317, 3 I^ Ed. GSS. THE VENUB.
Property of dtlseu domiciled in enemy's countzy !■ lialile to eaptore on
Iif«A seal, thoogli sUpped before declaration of war.
Approved in Juragua Iron Co. v. United States, 212 U. 5^307, 53 L. Ed.
524, 29 Sup. Gt. 385, holding property of American citizen residing in Cuba
destroyed by military operations during Spanish war not subject of rccom.
pense; United States v. Schooner Sally Mears, 6 D. C. 39, after secession
ordinance all inhabitants of seceding State became ipso facto publio
enemies; The Frances, 8 Cr. 347, 371, 3 L. Ed. 385, 593, following rule;
United States v. Guillem, 11 How. 60, 13 L. Ed. 604, holding neutral
leaving belligereot country entitled to rights of nentral; The William
Bagaley, 5 Wall. 408, 18 L. Ed. 689, holding neutral staying in enemy's
country loses his rights as a neutral ; Miller v. United Stales, 11 Wall. 306,
20 L. Ed. 144, declaring property in enemy's country subject to confisca-
tion, whoever be owner; The Sarah Starr, Blatchf. Pr. 76, Fed. Cas.
12,352, holding property of neutral domiciled in enemy's country subject
to confiscation; Brown v. Hiatt, 1 Dill. 384, Fed. Cas. 2011, r^arding
resident of belligerent State, an enemy; The Amy Warwick, 2 Sprague,
131, 140, 145, Fed. Cas. 341, confiscating property of permanent resident
in belligerent country; Wildes v. Parker, 3 Sumn. 598, Fed. Cas. 17,652,
holdii^ party acquires national character of the country of his domicile;
The Rover, 2 Gall. 242, Fed. Caa. 12,091, condemning property of enemy;
The Juanita, Newb. 364, Fed. Cas. 17,039, holding enemy's property within
oor territory cannot be confiscated without an act of Congress; United
States V. Barrels of Cement, 27 Fed. Cas. 294, holding property of persons
in territory under hostile sway may be confiscated; The Parkhill, 18 Fed.
Caa. 1187, holding no resident of hostile district can sustain proprietary
claim of restitution; United States v. Johnson, 25 Fed. Caa. 1235, holding
that domicile of owner at time determines whether the vessel is hostile;
■perkina v. Rogera, 35 Ind. 180, 9 Am. Rep, 668, declaring citizens of belli-
gerent State enemies; Micoa v. Benjamin, 26 La. Ann. 723, where offender
had mortgaged property only, his interest could be confiscated; Qriswold v.
Waddington, 16 Johns. 496, domicile at commencement of war determines
national character; United States v. Packages, 27 Fed. Gas. 286, and The
Gefla, 1 Mason, 90, Fed. Cas. 5296, arguendo.
633 THE VENUS. 8 Cr. 253-317
Domidis is ToUnqabbed wbara one daputs witb » b»u fld« intent not
Approved in United States t. Howe, 231 Fed. 547, holdit^ citizen of
United St&tea had right of expatriation &t will ; In re Deans, 20S Fed. 1019,
faolding intent of applicant for naturalization to remain absent from
United States not shown by two months' return to native country and
thence for four months in canal zone in employ of United States ; Pacific
Mat. tiife Ins. Co. v. Tompkins, 101 Fed. 543, determining question of
residence with reference to jurisdiction under judiciary act of 1888;
Donaldson v. State, 167 Ind. 657, 78 K. E. 184, holding alien who was
bona fide resident of State for thirty-five years and returned and resided
in native country two years till his death not presumed to have resumed
residence of nativity; School Diat. v. Matherly, 90 Mo. App. 407, holdii^
erroneous an instruction that removal into school district with intent to
rematD if suited, otherwise to retom, made mover a resident; In re New-
comb's Estate, 192 N. Y. 250, 84 N. E. 954, holding chanf^ of dowicilo
shown by evidence of intent; In re William Walker, 1 Low. 238, Fed. Cas.
17,061, holding domicile oi origin revives instantly, when one gives np
domicile of choice ; Bumham v. Rangeley, 1 Wood, & M. 10, 12, Fed. Cas.
2,176, declaring where one removes with such intent bis domicile is im-
mediately changed; Green v. Salas, 31 Fed. 112, holding domicile of birth
reverts after a short residence with such intent; United States v. Cbong
Sam, 47 Fed. 885, holding domicile was regained by a short residence;
Comitis V. Parkerson, 56 Fed. 563, holding citizen becoming wife of alien
does not lose.her citizenship; Marks v. Marks, 75 Fed. 327, 328, holding
that one going to a State with such intention becomes domiciled at once ;
State T. Hallett, 8 Ala, 161, holding that to change domicile there must be
an intent and an act; Gravillon v. Richard, 13 La. 298, 33 Am. Dec. 666,
dcelarii^ intent and short residence fixes domicile ; Vcrret v. Bonvillain,
33 La. Ann. 1308, 'holding that one coming to place with intent to remain
Mqaires a domicile; Ex parte Blumer, 27 Tex. 738, 740, 742, 743, 745, 746,
to acquire a domicile there must be an intent and an act — intent is proved
by acts; Rue High, 2 Doug. (Mich.) 524, 526, holding domicile ie de-
termined by facts; dissentingyOpinion, in Fong Yue Ting t. United States,
149 U. S. 734, S7 L. Ed. 920, 13 Sup. Ct. 1030, construing act of 1892, sec-
tion 6, relating to Chinese exclusion.
Distinguished in First Nat. Bank v. Balcom, 35 Conn. 357, holding that
native domicile superseded by one under same nation revives only upon
intent and act.
When change of domicile actually occurs where person leaves one place
with intention to settle in another. Note, Ann. Oas. 1914B, 486.
Maintenance of original domicile until establishment of new domicile.
Note, 9 E. R. 0. 809, 810.
Whether domicile is lost by abandonment without intention to return
before acquiring new one. Note, 40 L. R. A. (N. S.) 989, 992.
Respective weight of person's acts ^and declarations on question o£
domicile. Note, 21 Ann. Oas. 206.
■N
« ~.
S Cr. 317-334
NOTES ON U. S. REPORTS.
634
Title does not pass from consignor to consignee prior to dellTery.
Approved in Belding-Hall Mfg. Co. v. Mercer & Ferdon Lumber Co.,
176 Fed. 339, 99 C. C. A. 123, holding title to lumber passed without deliv-
ery when clause as to delivery was waived by buyer; State v. Kelly & Co.,
123 Tenn. 664, 133 S. W. 1012, holding title to goods ordered by mail passed
on delivery to carrier; McElwee v. Metropolitan Lumber Co., 69 Fed. 305,
37 U. S. App. 266, holding where nothing more remained to be done to
put goods in deliverable condition, sale was complete; dissenting opinion
in Commonwealth v. Fleming, 130 Pa. St. 168, l7 Am. St. Rep. 772, 18
Ail. 627, majority holding sale of property sent C. 0. D. is complete on
delivery to carrier; McLaughlin v. Marston, 78 Wis. 677, 47 Ni W. 1060,
following rule ; The San Jose Indiano, 2 Gall. 296, Fed. Cas. 12,322, holding
shipment to shipper's agent, giving him right to hold them, until he has
made arrangements with his corresxK)ndent, does not divest title or pos-
session of shipper; Blum v. The Caddo, 1 Woods, 66, Fed. Cas. 1673, hold-
ing consignor could not maintain action against common carrier for loss
of goods since title had passed; Treadwell v. Packing Co., 13 Fed. 24, hold-
ing title of goods to be delivered on condition passes when condition is
performed. <
Passing of title by delivery to carrier for transportation to consignee
or vendee. Note, 22 L. R. A. 419.
BngUsh prize law is our prize law.
Cited in The Parkhill, 18 Fed. Cas. 1192, arguendo.
Effect of agreement to satisfactorily perform undertaking.
L. R. A. 209.
Note, 17
8 Cr. 317-334, 3 L. Ed. 575, THE BCEBKIMACE.
Title to goods given to carrier,»on account and risk of sendee, vesta in
▼endee, but not if delivery accompanied by other conditions.
Approved in Andrews v. Schreiber, 101 Fed. 766, 93 Fed. 372, holding
where plaintiff contracted for wheat to be shipped to him, there was de-
livery on payment of drafts attached to bill of lading though wheat had
not been inspected as per custom; The Sally Magee, Blatchf. Pr. 386, Fed.
Cas. 12,260, where title was declared to have passed ; Blum v. The Caddo,
1 Woods, 66, Fed. Cas. 1673, holding where vendor has sold goods on
credit, title passes on delivery to carrier; Treadwell v. Anglo-American
Packing Co., 13 Fed. 24, holding if goods are to be delivered when draft
is paid, title passes on payment; Hobbie v. Smith, 27 Fed. 662, holding
delivery to carrier for and at risk of vendee, carries possession to him;
Jordan v. James, 6 Ohio, 99, holding right of stoppage in transitu may be
exercised, when title is vested in consignee.
Distinguished in The St. Jose Indiano, 1 Wheat. 214, 4 L. Ed. 74, hold-
ing title of goods consigned to agent who was to come to an understanding
with purchaser is in shippers ; as also in The San Jose Indiano, 2 Gall. 297,
Fed. Cas. 12,322.
•
ess
NOTES ON U. S. REPORTS.
8 Cr. 335-384
Deli
Pi
37 of goods to carrier for shipment as delivery to purchaser.
20 Ann. Cas. 1028.
of title by delivery to carrier for transportation to consignee
^\irendee. Note, 22 L. R. A. 420, 421.
^^48, 3 L. Ed. 681, THE FRANCES.
naturalized citizeii returning to native land on buBines is deemed
domicile in latter.
ished in Davis v. Bradley, 28 Vt. 126, 65 Am. Dec. 232, on facts.
of lienholders as to captured property. Note^ 5 B. R. 0. 1002.
58, 3 L. Ed. 587, THE FRANCES.
■hipped hy Britisli to American trader, with option to accept or
property of consignor and Uable to capture.
^n Sproule v. McNulty, 7 Mo. 66, holding title to property con-
one to sell and apply proceeds to payment of debt is in consignor.
«t of agreement to satisfactorily perform undertaking. Note,
L. R. A. 209.
a ^C^.,^Xlaneous. Cited in Perkins v. Rogers, 35 Ind. 145, 9 Am. Rep. 655,
^ted States v. One Hundred Barrels of Cement, 27 Fed. Cas. 294,
tly not in point.
^ cr. 359-363, 3 L. Ed. 589, THE FRANCES.
To vest title tn consignee there must he an acceptance or an agreement
to accept.
Cited in Treadwell v. Anglo-American Packing Co., 13 Fed. 24, deciding
title to goods sent upon condition passes upon performance of condition;
Sproule & Agnew v. McNulty, 7 Mo. 66, holding title to property consigned
to one to sell and apply proceeds to debt is in consignor.
Delivery of goods to carrier for shipment as delivery to purchaser.
Note, 20 Ann. Cas. 1030.
Passing of title by delivery to carrier for transportation to consignee
or vendee. Note, 22 L. R. A. 418.
8 Or. 363-371, 3 L. Ed. 590, THE FRANCES. ^
Domicile. Note, 59 Am. Dec. 111.
8 Or. 382-384, 3 L. Ed. 597, THE SALLY.
Mimicipal forfeiture, under nonintercouzse law of United States, is ah-
Borbed by the more general operation of the law of war.
Approved in The Sarah Starr, Blatchf. Pr. 84, Fed. Cas. 12,352, holding
statute did not restrict war powers of United States; and also Amory v.
M'Gregor, 15 Johns. 34, 8 Am. Dec. 207, holding, after declaration of war,
oOods were not forfeited under nonintercourse act, which was virtually re-
8 Cr. 385-416
NOTES ON U. S. REPORTS.
636
pealed by the declaration; The Hampton, 5 Wall 376, 18 L. Ed. 661, hold-
ing statutes did not modify law of prize.
Property used in trade with enemy subjeet to condemnation and goes to
the individaal captor, not the United States.
Approved in The Bentio Estenger, 176 U. S. 571, 44 L. Ed. 593, 20 Sup.
Ct. 490, holding vessel carrying provisions to enemy is liable to seizure;
Prize Cases, 2 Black, 674, 17 L. Ed. 479, declaring neutral vessel in
blockaded port lawful prize; The Hannah M. Johnson, Blatchf. Pr. 162,
Fed. Cas. 6031, denying application of master to be paid out of condemned
cargo; The Diana, 2 Gall. 98, Fed. Cas. 3876, holding shipment made after
declaration of war and from an enemy's port illegal; United States v. One
Hundred and Twenty-nine Packages, 27 Fed. Cas. 286, confiscating all
goods involved in illegal purpose; cited approvingly in The Parkhill^ 18
Fed. Cas. 1194.
8 Cr. S85-S88, 3 L. Ed. 598, THE EXJPHBATES.
Further proof, if inconsistent, ia not allowed in admiralty.
Cited in Personette v. Johnson, 40 N. J. Eq. 175, saying that court may
allow, where order appealed was a surprise; as also in Scribner v. Will-
iams, 1 Paige Ch. 551; The Adula, 89 Fed. 355, refusing to allow further
proof.
8 Or. 388-398, 8 L. Ed. 599, THE MABY.
In this caae Supreme Court ordered further proof. *
Cited in The Venezuela, 52 Fed. 875, 1 U. S. App. 314, receiving new
testimony which was not intentionally withheld in District Court.
8 Or. 398-416, 3 L. Ed. 602, UNITED STATES ▼. ONE THOUSAND NHVB
HUNDBED AND SIXTY BAG^ OF COFFEE.
Forfeiture, under noninterconrse act, takes place upon eommiasion of
offense, and avoids subsequent sale to Innocent piarcbaser.
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, 8 L. R. A. (N. S.) 997, 51 S. E. 997, up-
holding Acts Gen. Asseni. 1905, c. 292, § 9, relating to seizure and sale
of appliances used in illegal fishing; Gelston v. Hoyt, 3 Wheat. 311, 4
L. Ed. 398, holding property is divested on commission of offense; Cald-
well V. United States, 8 How. 379, 382, 12 L. Ed. 1121, 1122, holding, under
statute providing for forfeiture of goods or their value, title is not
divested until election ; Confiscation Cases, 7 Wall. 460, 19 L. Ed. 199, hold-
ing informer has no interest until after condemnation; Henderson's Dis-
tilled Spirits, 14 Wall. 56, 58, 20 L. Ed. 817, holding where forfeiture was
made absolute by statute, it takes place at time of offense; Burbank v.
Conrad, 96 U. S. 299, 24 L. Ed. 726, holding under alternative statute,
condemnation divests title; United States v. Stowell, 133 U. 8. 17, 83 L.
637
UNITED STATES v. 1,960 BAGS OF COFFEE. 8 Cr. 398^16
^d. 559, 10 Sup. Ct. 247, holding forfeiture took place from time of offense;
«s also in United States v. Fifty-six Barrels, 1 Abb. (U. S.) 100, 102,
^€d. Cas. 15,095, under absolute statute; United States v. One Hundred
Barrels, 2 Abb. (U. S.) 314, 320, s. c. Fed. Cas. 15,948, s. c, 1 Dill. 57, 63,
limiting rule to where intent that it should be absolute is unmistakable;
'Tlie Florenzo, Blatchf. & H. 60, 61, Fed. Cas. 4886, holding forfeiture
^^iura at time of sale to an alien; United States v. The Bark Reindeer,
^ Cliff. 68, Fed. Cas. 16,144, holding forfeiture takes place at time wrong-
*J^1 act is committed ; United States v. Sixty-four BaiTels, 3 Cliff. 315, Fed.
^*5. 16,306, holding where statute gives a choice of remedies title does
^^t vest until seizure; The Maria, Deady, 100, Fed. Cas. 9075, holding if
*ssel sold to foreigner, is navigated under American register, forfeiture
f^^ars at once; United. States v. Mackoy, 2 Dill. 306, Fed. Cas. 15,696,
^Jaiixg jurisdiction of court in condemnation proceedings against distil-
Q ^ ^ot defeated by subsequent sale ; The Mary Celeste, 2 Low. 357, Fed.
7»^ • ^202, if forfeiture is alternative, title does not vest until election;
«6^^r^^te Heron, 6 Sawy. 109, 111, Fed. Cas. 7619, declaring forfeiture not
(?o.^ j^^^ where words of statute were uncertain; Clark v. Protection Ins.
^^Titr^ ^tory, 134, Fed. Cas, 2832, when property is forfeited, it vests in gov*-
^V^-v ^t after seizure, which then relates back ; Heidritter v. Elizabeth Oil
^^ ^0., 6 Fed. 141, holding decree of condemnation relates back to time
t5L ottense; Six Hundred Tons of Iron Ore, 9 Fed. 600, declaring freight
earned before government's election must be paid out of proceeds ; United
States V. Cigars, 18 Fed. 150, holding cigars could be seized in hands of
innocent purchasers; Schenck v. Peay, 21 Fed. Cas. 683, limiting to where
intention that forfeiture be absolute clearly appears; United States v.
Hann, 26 Fed. Cas. 230, holding indictment, under act of Congress, lies
against one who trades in slavto illegally imported; United States v. One
Hundred etc., 27 Fed. Cas. 286, declaring one who juixes prohibited and
onprohibited goods for fraudulent purposes, loses all ; United States v. One
^ater Cask, 27 Fed. Cas. 345, forfeiting only goods in possession of
offender at time of act ; United Slates v. Three Hundred etc., 28 Fed. Cas.
i^^f ^ol^ing forfeiture relates to time of seizure, in absence of declara-
'^ that it shall be instantaneous; United States v. High Wines, etc., 28
^/fv ^«^s. 280, holding forfeiture under statute, direct in its terms, occurs
/g. ^^e ^f act ; Trustees v. Winston, 5 Stew. & P. 27, construing act of leg-
3f . ^i^e to impose absolute forfeiture ; Gill v. Taylor, 3 Port. 185, construing
g^^*-^ providing for sale of government land imposed absolute forfeiture ;
fgj. '^^i-s V. Clark, 29 La. Ann. 103, where statute was abscJlute, and for»
V ^^A , ,^^ was said to take place at once ; Mitchell v. Cunningham, 29 Me. 382,
<r ^^^ that title is not divested under revenue law, until condemnation;
^*^Hd V. Willard, 59 Me. 447, holding forfeiture dated from time of
^^^nl act ; Tracey v. Corse, 58 N. Y. 149, holding title not divested till
^,^^*tination ; Hollman v. Peebles, 1 Tex. 703, holding abandonment of
^ .J^^i land ipso facto restores it; The Distilled Spirits, 11 Wall. 368, 20
'^- 171, The Cloth Cases, Crabbe, 355, Fed. Cas. 2902, Dobbins Dis-
^ili^ry y. United States, 96 U. S. 404, 24 L. Ed. 640, Williams v. Delano,
B Cr. 417^0
NOTES ON U. S. REPORTS.
638
155 Mass. 14, 28 N^E. 1123, and Oar House No. 2 v. State, 4 G. Greene, 175,
arguendo.
Distinguished in The Nabob, Brown Adm. 118, Fed. Caa. 10,002, hold-
ing forfeiture did not defeat innocent purchaser where there was no
decree; Selma etc. R. R. Co. v. Tipton, 5 Ala. 802, 89 Am. Dec. 350, de-
claring forfeiture in favor of a private corporation not absolute; Ingersoll
v. Jackson, 14 Mass. 110, where statute was in alternative; Mariatigai v.
Insurance Co., 8 La. 69, 28 Am. Dec. 131, declared not applicable.
When forfeiture of property under statute takes effect. Note, 7
Cas. 899.
8 or. 417-418, 3 L. Ed. 609, UNITED STATES ▼. THE "NLABAT
•
Decided upon the authority of 8 Cr. 398-416, 3 L. Ed. 602, ante.
Cited in Gelston y. Hoyt, 3 Wheat. 311, | L. Ed. 398, holding property
is divested on commission of offense; Caldwell v. United States, 8 How.
379, 382, 12 L. Ed. 1121, 1122, holding title not divested under alternative
statute until election; Confiscation Cases, 7 Wall. 460, 19 L. Ed. 199, hold-
ing informer has not interest until after condemnation; Henderson's Dis-
tilled Spirits, 14 Wall. 56, 20 L. Ed. 817, where forfeiture was absolute;
Burbank v. Conrad, 96 U. S. 299, 24 L. Ed. 726, holding under aUemative
statute title not divested until condemnation ; United States v. Stowril, 133
U. S. 17, 38 L. Ed. 559, 10 Sup. Ct. 247, holding forfeiture took place at
time of offense; as also in United States v. Fifty-six etc., 1 Abb. (U. S.) 100,
103, Fed. Cas. 15,095, and United States v. The Bark Reindeer, 2 Cliff. 68,
Fed. Cas. 16,144; United States v. Sixty-four etc., 3 Cliff. 315, Fed. Cas.
16,306, holding where statute gives choice of remedies title not divested
until seizure; The Maria, Deady, 100, Fed. Cas. 9075, holding if vessel
sold to foreigner is navigated under American register, forfeiture occurs
at once; United States v. One Water Cask, 27 Fed. Cas. 345, forfeiting
only goods in possession of offender at time of act; The Schooner Tilton,
5 Mason, 471, Fed. Cas. 14,054, arguendo.
Distinguished in Mariatigui v. Insurance Co., 8 La. 69, 28 Am. Dec. 131,
holding this rule not applicable to charge insurers against acts of barratry ;
Ingersoll v. Jackson, 14 Mass. Ill, where statute was in alternative.
When forfeiture of property under statute takes effect. Note^ 7 Ann.
Ca8. 899.
8 Cr. 418-420, 8 L. Ed. 609, THE FRANCES.
Capture of prize of war overrides all previous liens of defendaxit upon
mere agreement of tlie parties. ^
Approved in The Carlos F. Roses, 177 U. S. 666, 673, 674, 44 L. Ed. 934,
986, 937, 20 Sup. Ct. 808, 810, 811, holding right of capture is not affected
by neutral claims or liens ; The Batt^, 6 Wall. 498, 18 L. Ed. 933, follow-
ing rule; The Siren, 7 Wall. 162, 19 L. Ed. 133, refusing to consider out-
standing claims on vessel previous to capture; also The Han nab M. John-
son, Blatchf. Pr. 35, Fed. Cas. 6029a; The Delta, Blatchf. Pr. 134, 136,
639 THE THOMAS GIBBONS. 8 Cr. 421-431
Fea. Cu. 3777; The Mary Anne, 1 Ware, 106, Fed. Cas. 9195, holding in
Mse o£ forfeiture one claiming an interest may make himself party ; United
States V. The Areola, 24 Fed. Cas. 850, where a mortgage dnly recorded,
not being secret lien, was not condemned.
Distioguished in dissenting opinion in The Carlos F. Roses, 177 U. S.
680, SSI, 634, 687, 688, 689, 41 L. Ed. «39, 940, 941. 942, 20 Sup. Ct. 813-
S16, majority holding right of capture is not affected by neutral claims or ,
liens; The Amy Warwick, 2 Sprague, 155, 156, Fed. Cas. 343, where a
neutral had not lien but a jus in re.
Eights of lienholders -as to captured property. Note, S B. B. 0. 1002,
1003, 1004.
DallTeiy of goods aeat at ilak of aUnpar to master la to him aa tbe agent
**' tte luppw.
-Approved in Heffner v. Gwynne-Treadwell Cotton Co., 160 Fed. 639, 87
^ ■ *-'- A. 606, where goods were consigned to factor for sale on commissioQ,
^_ "'Or advancing money thereon had lien thereon ; The Hannah M. John-
ya^^ Blatchf. Ft. 37, Fed. Cas. 6029a, holding bill of lading transmitted to
^, -^ to cover advances does not pass title; The Lynchburg, Blatchf, Pr.
Sj. ^d. Caa. 8637a, holding where defendants contracted to convey goods
^ certain State and there deliver them, the sale was made there; Buhl
H , Comer, 63 Md. 135, holding title to goods shipped to one not ordering
Aocs not pass on delivery to carrier; Elliot v. Bradley, 23 Vt. 223, holding
goods were sent at risk of consignor, consequently consignee was former's
agent, and title remained in consignor; as also in Hobbie v. Smith, 27 Fed.
662.
Passing of title by delivery to carrier for transportation to consignee
or vendee. Note, 22 L. B. A. 422.
Termination of right of stoppage in transitu. Note, 23 E. B. C. 430.
By ciHnmim law factor has a lien on goodi in Ua ponesaion tot money dn«
Itoa hli prlnelpM.
Cited in Jordan v. James, 5 Ohio, 100, following rule.
* Eneni; cannot sue or D« heard aa claimant In coorta of capton.
Cited in Perkins v. Rogers, 35 Ind. 145, 9 Atn. Bep. 666, following rule.
t Cr. 421-431, 3 !•. Ed. 610, THE THOMAS GIBBONS.
Bblpmmt mads aftor knowledge of war, when doemed to liava been made
"■ OMtaeiinence of ropetl of orden In coqncU.
\ -Approved in The Mary, 8 Cr. 140, 3 L. Ed. 683, following rule; Amory
''■. *IcGregor, 15 Johns. 37, 8 Am. Dec. 209, holding one belligerent may
.'''*draw his property from the country of the other, within reasonable
p*« after declaration of war; McCall's Case, 15 Fed. Cos. 1230, and The
*'^t>iin, 18 Fed. Cas. 1197, as to powers of the President in war.
, Miscellaneous. Cited in dissentii^ opinion in Clements v. Qraham, 24
"*■ Ann. 449, 450.
8 Cr. 431-434 NOTES ON U. S. REPORTS. C40
8 07. 431-434, 3 Ll Ed. ei4, PRINCE t. BABTLBTT.
Property In poaaenloa of ilierUr 1>7 execution cumot b« Uk«n br Bti1»»-
Quent proceoB of Vnlted Stetee eonrb
Approved in The Florida, 212 Fed. 336, holding lien of United States
on ship for damages entitled to no priority over other liens; S. H. Hawes
& Co. V. Wm. R. Tri^ Co., 110 Va. 206, 65 S. E. 554, holding labor lien
on ship being constructed for government was superior to that o£ govern-
ment under contract ; Bayard v. Bayard, 2 Fed. Cob. 1060, holding interest
vested in party hy mere delivery of execution to sheriff could not be de-
feated by snbsequent process of Federal courts; Dudley's Case, 7 Ped.
Cas. 1154, holding United States court has no power to issue injunction
to stay process of State court.
Distinguished in Wall v. The Royal Saxon, 29 Fed. Cas. 64, where the
subject of execution was not the same in both courts whose process was
in question.
Prlontir of trnlted Statw attaches when Insolvency la legal and notoiiona,
and not mere Inability to pay deMa.
Approved in State v. Mississippi Valley Trust Co., 209 Mo. 492, 103
S. W. 102, holding statute of State giving State priority in insolvency was
equivalent to Federal statute; United States v, Ilowland, 4 Wheat. ]20,
4 L. Ed. 530, holding assignment of part of his property insufficient; Cou-
rad V. Insurance Co., 1 Pet. 439, 7 L. Ed. 212, declaring nicro inability of
debtor to pay all his debts insufficient; Beaaton v. The Bank, 12 Pet. 134,
136, 10 L. Ed. 1029, 1030, holding priority can never attach while debtor
is in possession of property; United States v. Wilkinson, 6 Dill. 27S, Fed.
Cas. 4^,695, holding, under statute, priority is secured when debtor's prop-
erty is administered for benefit of creditors generally; United States v.
The Bank, 3 Story, 81, Fed. Cas. 14,715, holding prior attaching creditors
take precedence over United States; United States v. McLcUaii, 3 Sunin.
352, Fed. Cas. 15,698, holding conveyance of all property to creditors to
discharge debts not such an act; Thelluson v. Smith, Fed. Cas. 13,878, 1
Pet. C. C. 198, holding mere inability to pay debts insufficient; Ex parte
Hull, 12 Fed. Cas. 856, holding insolvency must be proved as indicated by
the statute; United States v. Couch, 25 Fed. Caa. 674, holding assignment
of propeity of firm and of one partner insufficient ; Farmers' Bank v.
Beaaton, 7 Gill & J. 426, 28 Am. Dec. 229, holding inability of bank to pay
her debts could not per se give the priority; Marshall v. Barclay, 1 Paige
Ch. 161, holding assignment must be of all debtor's property; United States
V. Crookahank, 1 Edw. Ch, 237, construing the statute strictly, and as not
giving priority out of estate vested in heir; Wilcocks v. Wain, 10 Serg. &
R. 330, holding mortgage given before general assignment takes prece-
dence; State V. Harris, 2 Bail. 600, holding this priority not an incident of
sovereignty.
Distinguished in McArthur v. Chase, 13 Gratt. 691, where statute was
entirely different; Storm v. Waddell, 2 Sand. Ch. 528, where the judgment
NOTES ON U. S. REPORTS.
(?**'or by CMnmeneing his action acquired equitable lien in property of
"* debtor, not impaired by a discharge in ban^uptcy.
Priority of State of United States in payment. Note, 29 L. R. A. 231,
234.
Oz-<x«
T for further proof in prlsv cusM In tbe Bopmne Conrt !■ dlscT»-
proof'**"*^ -ved in Personette v. Johnson, 40 N. J. Eq. 175, allowing further
jl'jjjj "^^Viere order appealed from was a surprise to appellant; Scribner v.
fiirth&^*^^f 1 Paiffo Ch. 551, holding it is not a matter of course to receive
nfoof, proof on an appeal; The Adula, 89 Fed. 361, refusing further
^B. ^^^^llaneoua. Cited in Amory v. McGregor, 15 Johns. 36, 8 Am. Pec.
{**** a=^ declared not to have decided that an American could withdraw
^ *om England after declaration of war.
"^ ^- V44-45I, 3 L. Ed. 819, THE HIBAM.
^Ong enemy'! Ucflnie in ourytng provlalona to neutral, who la their allr>
■nbjKti ship to condomnatlcin.
Approved in The Julia, 1 Qall. 59S, Fed. Cas. 7575, following rule.
UiseellaneouB. Cited in Payson v. Coolidge, 2 Gall. 235, Fed. Caa.
10,860.
a Cr. 4GI-4S6, 3 Z.. Ed. esi, TBE JOSEPH.
American veBBel carrying cargo to enemy's port after war known U Uahle
to cftMeninatlon, even aftcT she has left enemy's port.
Approved in The Benito Eatenger, 176 U. S. 575, 44 L. Ed. 596. 20 Sup.
Ct. 491, holding in cases of peculiar hardship it is not function of judiciary
to extend amelioration ; Tho Adula, 176 U. S. 380, 44 L. Ed. 513, 20 Sup.
Ct. 439, holding vessel having knowledge of Quantananio blockade was
liable to capture; The Ely, 110 Fed. 573, holding charterer not liable for
loss of vessel where siibchartcrer, without charterer's knowledge, com-
mitted breach of neutrality; dissenting opinion in The Pedro, 175 U, S.
373, 41 L. Ed. 202, 20 Sup. Ct. 145, holding Spanish vessel arriving at
Havana on April 17, 1808, and discharging cargo and leaving there on
April 22, 1898, was not within articles 4 or 5 of proclamation of April 26,
1898; Jeeker y. Montgomery, 18 How. 114, 15 L. Ed. 313, holding for-
feiture cannot be evaded by stopping at an intermediate port; The Spring-
Iwt, Blatchf. Pr. 454, Fed. Cos. 13,264, holding vessel destined for enemy's
ywrt, Babject to capture the moment she departs ; United States v. One
Hundred Barrels Cement, 27 Fed. Cas. 293, 297, holding all goods shipped
during war without a license, forfeited ; Caldwell v. Express Co., 1 Flipp.
89, Fed, Cas. 2303, holding carrier prevented from delivering by war
becomes a bailee, and is liable for value of goods at end of war when do-
Qiacd is made; Durdcn v. Smith, 44 Miss. 533, holding war t
8 Cr. 462-470
NOTES .ON U. S. REPORTS.
642
mand by holder of note at that time; The Grotius, 8 Cr. 46Q, 3 L. Ed. 624,
following rule.
Distinguished in The Pedro, 175 U. S. 366, 44 L. Ed. 200, 20 Sup. Ct.
]42, holding Spanish vessel arriving at Havana on April 17, 1898, and dis-
charging cargo and leaving there on April 22, 1898, was not within articles
4 or 5 of proclamation of April 26, 1898; Kershaw v. Kelsey, 100 Mass.
567, 97 Ajn. Dec. 130, upholding lease by rebel of plantation in rebel State
to a citizen of Massachusetts.
Insurable interest in property. Note, 13 E. R. G. 212.
8 Ct. 462-470, 3 L. Ed. 624, ALEXANDER v. PENDLETON.
Adverse possesBion for fifty yean with knowledge of a better title con-
stitutes a good defense against it.
Approved in Metzgar v. McCoy, 105 Fed. 676, following rule ; Lawson v.
United States Mining Co., 207 U. S. 9, 52 L. Ed. 73, 28 Sup. Ct. 15, holding
one in possession of surface of mining claim under patent could sue to
quiet title to vein beneath surface; Cocke v. Copenhaver, 126 Fed. 148,
holding bill to remove cloud from title cannot be maintained by one hav-
ing neither legal title nor possession; Dewing v. Woods, 111 Fed. 577,
holding suit to remove cloud cannot be maintained when bill shows that
land has been sold for taxes; Morse v. South, 80 Fed. 209, holding under
Ky. Stats., § 2361, suit to quiet title cannot be maintained except by person
having legal title and possession; Nicholson v. Hale, 73 Kan. 602, 85 Pac.
593, holding one who was in possession under tax deed could maintain
ejectment against one wrongfully dispossessing him; Riffle v. Skinner, 67
W. Va. 82, 67 S. E. 1078, holding possession for twenty-seven years sus-
tained ejectment; National Oil etc. Co. v. Teel, 95 Tex. 592, 68 S. W. 981,
arguendo; Scott v. Evans, 1 McLean, 489, Fed. Cas. 12,529, holding lapse
of time a good bar to claim of title, though statute would not operate;
Riggs V. Fuller, 54 Ala. 146, holding where there is privity of estate sev-
eral possessions can be tacked; Cannon v. Stockmon, 36 Cal. 541, 95 Am.
Dec. 208, holding title acquired by adverse possession is lost only by ad-
verse possession for statutory period; Parker v. Metzger, 12 Or. 413, 7
Pac. 522, and 420 Min. Co. v. Min. Co., 3 Sawy. 658, Fed. Cas. 4989, hold-
ing adverse possession vests a perfect title; McNeely v. Langan, 22 Ohio
St. 37, sufficient if possession was in plaintiff or those under whom he
claims; Kirk v. Smith, 9 Wheat. 288, 6 L. Ed. 92, the possession must be
adverse ; Hunter v. Marlboro, 2 Wood. & M. 198, Fed. Cas. 6908, ai^endo.
Distinguished in dissenting opinion in Riffle v. Skinner, 67 W. Va. 103,
67 S. E. 1086, majority holding possession for twenty-seven years sus-
tained ejectment.
Equity will interpose to quiet title to property situated near growing city»
and in which numerous pexsons are interested.
Cited in Holland v. Challen, 110 U. S. 20, 28 L. Ed. 64, 3 Sup, Ct. 498,
holding, under statute, possession by plaintiff unnecessary; Frost v. Spit-
ley, 121 U. S. 556, 80 L. Ed. 1012, 7 Sup. Ct. 1131, holding it cannot be
maintained by one with only equitable title; Dick v. Foraker, 155 U. S.
643
ALEXANDER v. PENDLETON.
8 Cr. 462-470
^U, 39 L. Ed. 205, 15 Sup. Ct. 128, holding, under statute, possession by
plaintiff unnecessary; Harland v. Bankers' etc. Tel. Co., 32 Fed. 308, hold-
^S equity will not entertain bill to try title to property held adversely;
%ett -y. Crane, 8 Fed. Cas. 777, holding "that person in possession can
orin^ "bill to quiet title ; Arrington v. Liscom, 34 Cal. 386, 94 Am. Dec. 788,
Do/dij-i^. person acquiring title by adverse possession may bring such a bill;
^. Durham, 2 Ga. 428, refusing to grant equitable relief where there
equate remedy at law;; Bond v. Little, 10 6a. 400, holding equity
't restrain action in ejectment in a doubtful case; Stockton v. Will-
Doug. (Mich.) 567, refusing to restrain the assertion of a title in
not free from doubt; Bracken v. Preston, 1 Pinn. 598, 44 Am. Dec.
Lsmissing bill where complaint showed plaintiff disseized; dissent-
Lnion in Davis v. Settle, 43 W. Va. 37, 26 S. E. 565, arguendo ; Caro
sacola etc. Co., 19 Fla. 772, holding that equity will interfere in
of those in possession of land claimed by a large number ; Picrpont
le, 2 Wood. & M. 36, Fed. Cas. 11,152, remarking that parties are
^^ sent to law to try questions of title.
inguished in Kansas City Southern Ry. Co. v. Quigley, 181 Fed. 195,
^ action not 6n^ to quiet title ; De Bernard! v. McElroy, 110 Mo.
9 S. W. 628, where party in possession had accepted bond and had
to execute a deed.
bona fide pnzcbaaer wltbont notice of a ▼ez1>«l trust attacblng to hiB
''^^^^^^^r'a title is protected against mch trust.
. ^X^^X^roved in Singer Mfg. Co. v. Tillman, 3 Ariz. 128, 21 Pac. 819, bold-
ly, ^^xirchase of outstanding title by one in possession, claiming title and
n ^]^^^7 o^ quitclaim deed, do not admit title in grantor; Slaughter v.
.^^^ County, 34 Tex. Civ. 602, 79 S. W. 865, conveyance reciting grantor
I ^old all right, title and interest in certain land transferred to grantor
^^>^der of court and contract for deed gives only grantor's title ; Johnson
5^ J*?'^^ger8, 13 Fed. Cas. 797, holding party taking claim from trustee with
5^ ^^^^ of fraud cahnot impeach the assignment; Rogers v. Pierce, 12 Neb.
A) N. W. 536, holding purchaser from one without notice not liable for
^rsion ; Snowden v. Tyler, 21 Neb. 217, 31 N. W. 669 ; Holmes v. Stout,
^ J. Eq. 494, Holmes v. Stout, 10 N. J. Eq. 422, and Griffith v. Griffith,
"^^^off. Ch. 163, holding grantee of bona fide purchaser is not to be charged
•«^ith acts known to him before he acquired title.
Distin^ished in York v. McNutt, 16 Tex. 16, 67 Am. Dec. 608, holding
bona fide purchaser of equitable title takes it with imperfections.
Rights of purchaser for value without notice. Note, 21 E. B. G. 725.
Where suit is abated it takes no time out of statute.
Approved in Pennsylvania Co. v. Good, 56 Ind. App. 567, 103 N. E. 674,
following rule; Patterson v. Safe Deposit & Tr. Co., 148 Fed. 791, denying
Suitable 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 administrator in other State;
WiUard v. Wood, 164 U. S. 523, 41 L. Ed. 540. 17 Sup. Ct. 181, holding
y.
ec^
8 Cr. 471-478
NOTES ON U. S. REPORTS.
644
if suit is dismissed or abates, limitation runs during pendency; L3rtle v.
Tlie State, 17 Ark. 662, holding filing of amended bill bringing in new
parties to be commencement of suit as to them; Null v. Canal Co., 4 Ind.
434, holding proceeding abandoned will not avail to save claim from stat-
ute; Young V. Machall, 4 Md. 374, where a suit abates and is not revived
it takes no time out of the statute.
In action to anlet title prayer should not be granted in doubtful case.
Approved in Keefe v. Bramhall, 3 Mackey (D. C), 569, refusing to quiet
title under tax deed.
Possessory title as a weapon of offense. Note, 46 L. B. (N. S.) 506.
Abandonment of highway by nonuser, or otherwise than by act of
authorities. Note, 26 L. B. A. 453.
Miscellaneous. Cited in Woodside v. Ciceroni, 93 Fed. 4, holding value
of whole realty to which claim extends determines amount in controversy
in suit to quiet title; Smith v. Adams, 130 U. S. 175, S2 L. Ed. 898, 9
Sup. Ct. 569, but apparently not in point.
8 Cr. 471-478, 3 L. Ed. 627, PBATT ▼. CABAOLIi.
Specific performance refused after lapse of seven years and change of cir-
cumstances.
Approved in Marks v. Gates, 2 Alaska, 526, refusing specific perform-
ance of grubstake contract; Elliott v. Elliott, 3 Alaska, 364, refusing to
enforce grubstake contract after delay of four years; Findlay v. Balti-
more Trust Co., 97 Md. 721, 722, 55 Atl. 381, holding, rescission by buyer
of executed sale of bonds for fraud cannot be defeated by seller on ground
that buyer has parted with bonds and so cannot restore statu quo where
he parted with them on seller's advice; Taylor v. Longworth, 14 Pet. 175,
10 L. Ed. 406, allowing specific performance, where delay was caused by
state of title; Veazie v. Williams, 8 How. 158, 12 L. Ed. 1028, giving relief
though there had been a lapse of time; McCabe v. Matthews, 155 U. S. 553,
39 L. Ed. 258, 15 Sup. Ct. 191, whether specific performance will be granted
depends on the circumstances; McNeil v. Magee, 5 Mason, 259, Fed. Cas.
8915, holding court will not decree specific performance after long delay,
especially where there has been a material change of circumstances ; .War-
ner V. Daniels, 1 Wood. & M. Ill, Fed. Cas. 17,181, holding where there is
fraud, or it would work injustice, lapse of time is not a bar; McCake v.
Matthews, 40 Fed. 339, refusing specific performance where there was a
long delay, unexplained; Avery v. Kellogg, 11 Conn. 571, allowing specific
performance where laches of plaintiff was waived, by acts of defendant;
The Trustees etc. v. State, 7 Ind. 183, holding equity can exercise its dis-
cretion in enforcing a statute; Mathews v. Gilliss, 1 Iowa, 254, holding
unless time is expressly made so, it will not be treated as of the essence
of the contract; Kercheval v. Swope, 6 T. B. Mon. 3C6, where there was
part execution, lapse of time was not a bar; Derrett v. Bowman, 61 Md.
528, holding time not of the essence of the contract, and giving 8X)ecific
645
PRATT V. CARROLL.
8 Cr. 471-478
I)orformance; Dawson v. Sparks, 1 Posey (Tex.), 751, holding if propci-ty
is of perishable nature party who has been defrauded is not bound to
preserve them until suit to rescind is brought; Tufts v. Tufts, 3 Wood. &
M. 474, Fed.,Cas. 14,233, and Cheney v. Cook, 7 Wis. 424, arguendo.
Distinguished in Magee v. McManus, 70 Cal. 559, 12 Pac. 454, declaring
it to be inapplicable to a contract of indemnity; Longworth v. Taylor, 1
McLean, 517, Fed. Cas. 8491, refusing to enforce illegal agreement.
Right to specific performance with compensation of contract for sale
of land. Note, Ann. Gas. 1915D, 1110.
Miscellaneous. Cited in Everett Land Cp. v. -Maney, 16 Wash. 560, 48
Pac. 246, to point that where damages are indefinite^ the amount stipulated
is considered liquidated damages.
NOTES
/ ONTHS
UNITED STATES EEPORTS-
IX CBANCH.
9 Or. 9-11, 3 L« Ed. 639, MANDBVILI£ ▼. UNION BANK OF GEOBOE-
TOWN.
By ma|dnir note payable at bank, maker walres right to offset claim
against piayee in action by bank.
Cited in Spence's Admr. v. Whitaker, 3 Port. 321, holding that certifi-
cates of stock issued by private association are not subject, in hands of
bona fide assignee, to offset against original stockholder; Emanuel v. At-
wood, 6 Port. 389, and Knapp v. McBride, 7 Ala. 28, holding such note not
subject to setoff in hands of assignee of bank; Bedfotd Bank v. Acoam,
125 Ind. 586, 21 Am. St. Rep. 260, 25 N. E. 714, holding that where note
payable at bank, bank has right to pay note from genei^l funds of maker
on deposit; Merchants' etc. Bank v. Meyer, 56 Ark. 509, 20 S. W. 408,
arguendo.
Distinguished in Stadler v. "First Nat. Bank, 22 Mont. 205, 56 Pac. 115,
holding maker not estopped to setoff where not negotiable at payee bank;
Parham v. Randolph, 4 How. (Miss.) 454, 35 Am. Dec. 408, and AUein v.
Bank, 3 Smedes & M. 58, under statute; Raymond v. Middleton, 29 Pa. St.
530, where note not negotiated at place specified; Grissom v. Bank, 87
Tenn. 370, 10 Am. St. Rep. 681, 10 S. W. 781, holding that making note
payable at bank does not of itself confer authority of bank to pay out
of funds of maker; so also in Barrett v. Wills, 4 Leigh, 116, 117, 26 Am.
Dec. 316.
Setoff against assignee of commercial paper, of claim against assignor.
Note, 23 L. R. A. 328.
9 Cr. 11-18, 3 L. Ed. 639, MEIGS y. McOLUNGPS LESSEE.
Terms of treaty between United States and Indiana concerning lands can-
not be controlled by acts of agent of United States.
Approved in Wadsworth v. Boysen, 148 Fed. 780, enjoining Indian agent
obstructing complainant from prospecting on reservation; Clark v. Smith,
13 Pet. 201| 10 L. Ed. 126, where grant to Indians held to confer only right
(646)
647
SIMMS V. GUTHRIE.
9 Cr. 19-28
of oecapaney; Holden v. Joy, 17 Wall. 247, 21 L. Ed. 535, as to inability
of President to convey public lands without consent of Congress; United
States V. Lee, 106 U. S. 210, 212, 217, 246, 27 L. Ed. 178, 179, 181, 191,
1 Sup. Ct. 252, 254, 258, 282, to point that court will protect property
rights unlawfully invaded by public officers; Lee v. Kaufman, 3 Hughes,
S4, 131, 132, 138, Fed. Cas. 8191, 3 Hughes, 150, Fed. Cas. 8192, holding
further as to jurisdiction of Federal courts in cases involving title to
public lands; United States v. Reese, 5 Dill. 409, Fed. C^. 16,137, denying
^ght of Congress to interfere with rights under such treaty; so also in
United States v. Payne, 2 McCreary, 295, 8 Fed. 888, on same point; Polack
^- Mansfield, 44 Cal. 40, 42, 13 Am. Rep. 154, 156, King v. La Grange,
^^ Cal. 227, 230, McConnell v. Wilcox, 1 5cam.'366, and Budd v. Tax Col-
^ctor, 36 La. Ann. 961, holding that ejectment may be maintained against
^^ited States officer; Cherokee Nation v. Georgia, 5 Pet. 48, 8 L. Ed. 42,
*^endo.
Miscellaneous. Cited in St. Louis etc. R. Co. v. Allen, 181 Fed. 722, to
point that Federal court could not enjoin action in State court though
«we on which action is based is unconstitutional; Cunningham v. Rail-
^^ Cb,, 109 U. S. 452, 27 L. Ed. 994, 3 Sup. Ct. 297, Poindexter v. Green-
l^J^^ -iJ4 U. S. 287, 29 L. Ed. 192, 5 Sup. Ct. 912, Reagan v. Farmers'
^ittt^' 4S Fed. 482, 486, Railroad Co. v. Commissioners, 36 Tex. 410, to
^utb ^^^^^ officer setting up authority as defense must show that such
^"^i^ was sufficient to protect him.
*^^t to maintain ejectment against servant or agent in actual pos-
'^sion of premises. Note, Ann. Gas. 19130, 357.
Ti action against officers deemed against State. Note^ 44 L. K. A.
r. s.) 210.
^SS, 3 L. Ed. 642, SIMMS Y. aUTHBIE.
owners must be made parties to suit brouglit by holdexB of equitable
to ft^^l
33 1>^,
ft^K
^IM;
ved in Findlay v. Hinde, 1 Pet. 245, 7 L. Ed. 130, holding person
<;uted deed should be made party to proceeding brought by person
under deed and alleging it to have been lost; Smith v. Shane, 1
, 32, Fed. Cas. 13,105, holding that patentee should be made party
n involving title to land conveyed by him; State ex rel. v. Burke,
^Ann. 505, denying right to maintain action against State treasurer
State a necessary party and exempt by Constitution from suit in
courts; dissenting opinion in Paine v. French, 4 Ohio, 327, on
"tliat mortgagee should be made party to action by assignee.
^^^'^inguished in Kerr v. Watts, 6 Wheat. 559, 5 L. Ed. 330, holding
t\vtv t>^rson need not be made complainant in whom there is no interest;
1!l[V^^^^ y Kennedy, 24 Iowa, 403, 95 Am. Dec. 744, holding heirs of im-
lO^^^^te grantor not necessary parties where plaintiff claims under deed
gv^^^ by remote grantot to correct error in deed to immediate grantor.
it >: I !
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9 Cv. 28-39 NOTES ON U. S. REPORTS. 648
Equity JturUdictlon over aiulllsry aults does not dapand on resldanca at
parties.
Cited in Jones v. Andrews, 10 Wall. 333, 19 L. Ed. 937, &s to bill to
restrain proceedings of gamishraent ; Webb v. Barnwell, 116 U. S. 19G,
29 L. Ed. 690, 6 Sup. Ct, 351, as to proeccdin;j to en.join enforcement of
judgment in ejectment; St. Luke's Hospital v. Barclay, 3 Btatchf. 263,
Fed. Cas. 12,241, us to proceeding to reatrain institution of action at law;
McDonald v. Seli^ftnan, 81 Fed. 756, aa to bill to enjoin judgment and for
permission to complainant to intervene in action; Davis v. Packard, 10
Wend. 55, and Rogera v. Ki^era, 1 Paige Ch, 185, under facts similar to
those in principal case; Brooks v. Memphis, 4 Fed. Cas. 286, to point that
equity, having acquired jurisdiction of case, may decide »ll questions aris-
ing during proceedings.
Distinguished in Christmas v. Rusael, 14 Wall. 81, 20 L. Ed. 763, where
bill did not relate to matter in addition to or in continuance of originnl
OotnpUinant cannot obtain decree for mote ttuui bo bu uked in Us 1)UL
Approved in Pacific M^il S. S. Co. v. Waimanalo Sugar Co., 181 Fed.
928, 104 C. C. A. 365, holding no sward could be made for salva^ not
alleged; Foster v. Goddard, 1 Black, 518, 17 L. Ed. 232, holding that in
equitable proceeding proof must correspond to allegations; Tilghtnan v.
Tilghman'8 Exrs., 1 Bald. 491, Fed. Cas. 14,045, holding inadmissible evi-
dence aa to matter not alleged ; Qoodyear v. Providence Rubber Co., 2
ClifF. 370, Fed. Caa. 5583, holding defendant limited to defenses set up
in answer; Blandy v. Griffith, 3 Fed. Cas. 677, to point that material facts
must be alleged in pleadings.
Injunction against execution sales or other proceedings under final
process. Note, 30 L. B. A. 129.
9 Or. 2S-99, 3 !•. Ed. B4B, SPEAJCB ▼. UmTED STATES.
Statute dii«ctln£ liond to be taken iwfore clesituice granted merely:
directory and bond taken afterward is not invalid.
Cited in Bank of United States v. Brent, 2 Cr. C. C. 699, Fed. Cas. 910,
holding bond not void for noncompliance with law regulating execution ;
United States v. Mynderse, 11 Blatchf. 6, Fed. Cas. 15^51, holding bond
not void because it exceeds requirements of statute; Woolridge v. Mc-
Kenna, 8 Fed. 662, holding statute prescribing time when act is to be per-
formed merely directory; Sprowl v. Lawrence, 33 Ala. 692, as to sheriff's
bond; Branch v. Branch, 6 Fla. 329, as to bond of administrator; Stephens
V. Crawford, 3 Ga. 508, 512, holding, however, that bond not conformable
to statute can be enforced only according to common-law rules ; Chicago
V. Oage, 95 III. 623, 36 Am. Rep. 193, as to bond of city treasurer; Com-
missioners of Knox Co. V. Johnson, 124 Ind. 150, 19 Am. St Eep. 92,
24 N. E. 150, as to time for filing bond of county superintendent of schools ;
Young V. Maryland, 7 Gill & J. 263, as to statute preacribiog form of
official bond; dissenting opinion in Milbum v. Maryland, 1 Md. 10,
^
SPEAKE V. UNITED STATES.
9 Cr. 28-39
majority holding bond invalid unless approved as required by statute;
Jones V. Railroad Co., 5 How. (Miss.) 411, holding forthcoming bond not
invalidated by omission to state statutory period between levy and sale;
State V. Rhodes, 6 Nev. 373, as to official bond given for greater sum than
required; State v. Colvig, 15 Or. 62, 13 Pac. 640, as to statute prescribing
time within which officer must qualify; Jackson v. Simonton, 4 Cr. C. C.
261, Fed. Cas. 7147, arguendo.
Distinguished in Janes v. Reynolds, 2 Tex. 256, holding that bond must
conform substantially to statute; Johnson v. Erskine, 9 Tex. 5, holding
bond invalid where more onerous than required by statute.
Where bond In penal sum equal to double value of vessel required, parties
^ estopped to deny that stun Inserted by mutual consent was in fact double
^^ value, ~
Cited in The S. Oteri, 67 Fed. 150, 30 U. S. App. 10, applying rule to
®^port bond; Steele v. Adams, 1 Me. 4, as to estoppel by deed; Peters v.
^iate, 10 Tex. App. 306, where sureties on bail bond estopped from deny-
^^S its validity on ground that it was taken in sum less than that fixed
Ak sheriff; Taylor v. Benham, 5 How. 274, 12 L. Ed. 160, and Villere v.
^^mstrong, 4 Mart. (N. S.) 25, arguendo.
^ond is not avoided by erasing name of one obligor and inserting name of
^^tliOK- after delivery, by consent of all parties.
. ^P^l>:roved in State v. Baird, 13 Idaho, 132, 89 Pac. 300, applying rule
^^^il bond; Churchill v. Capen, 84 Vt. 109, 78 Atl. 737, holding alteration
Ci ^^^■^o.t consent valid defense to suit on bond ; McWhorter v. McGchee, 1
^, ^^- 554, as to sheriff's bond; Gibbs v. Frost, 4 Ala. 728, as to consent
jn^*~^^'^>^ies to complete bond after signing in blank; Cotten v. Williams, 1
3^j^* '^^9 on same point; Sans v. People, 3 Gilm. 335, as to alteration of
5^ i^ bail bond; Stiles v. Probst, 69 111. 387, as to alteration of deed;
aft
^^
o V. Gage, 95 111. 611, 35 Am. Rep. 183, as to completion of bond
> signing in blank; State v. Polke, 7 Blackf. 28, under facts similar
v^ ^^^ose in principal case; Powers v. Nash, 37 Me. 324, as to substitution
^ Surety on note; South Berwick v. Huntress, 53 Me. 97, 87 Am. Dec. 542,
^ to insertion of sum in penal bond after signing in blank; Howe v. Pea-
body, 2 Gray, 557, as to alteration of probate bond by increasing penal
sum; Camden Bank v. Hall, 14 N. J. L. 585, 588, as to alteration of .iudg-
raent bond; Rogers v. Hosack's Exrs., 18 Wend. 339-, 25 Wend. 348, holding
further that redelivery after alteration is unnecessary; Cribben v. Deal,
21 Or. 214, 28 Am. St. Rep. 748, 27 Pac. 1047, as to filling up of deed signed
in blank ; Stahl v. Berger, 10 Serg. & R. 172, 13 Am. Dec. 668, as to inser-
tion of name of payee of note signed in blank; Barrington v. Bank,* 14
Serg. & R. 422 ; Burson v. Kincaid, 3 Penr. & W. 61, as to release of estate
of deceased surety; Arnold v. Jones, 2 R. I. 350, as to alteration of note
by changing name of payee; Gourdin v. Commander, 6 Rich. 504, as to
filling up of bond signed in blank ; Laffcrty v. Lafferty , 42 W. Va. 788, 26
S. E. 264, where deed signed in blank and subsequently filled in; Vilet v.
Camp, 13 Wis. 206, holding that consent may be given either before or
after alteration; Owings v. Grubb, 6 J. J. Marsh. 32, arguendo.
9 Cr. 39-65 NOTES ON U. S. REPORTS. 650
Denied in Simms v. Bervey, 19 Iowa, 291, holding parol evidence in-
admissible to bIiow authority to fill in mortgage signed in blank.
Distinguished in Tucker v. Allen, 16 Kan. 319, 320, aa to deed ai^ed in
blank; People v. Brown, 2 Doug. (Mich.) 1.3, Smith v. Weld, 2 Pa. St. 55,
Cleaton v. Chamblisa, 6 Rand. 92, Rhea v. Gibson, 10 Gratt. 220, and Pres-
ton V. Hull, 23 Gratt. 612, U Am. Hep. 161, where consent of parties not
shown; Spencer v. Buchannan, Wright, 584, where bond signed in blank,
held not to be completed by inference of court.
Inserting namo of grantee in deed. Note, 10 Am. Bep. 268.
Filling blanks in written instruments. Note, 13 Am. Dec. 671.
Alteration of date of negotiable instrument as material alteration.
Note, Ann. Cas. 1913D, 729.
Alteration apparent on face of instrument doea not avoid It tmleaa sbown
to liave 'been made fraudulently oi wltliout consent of parties affected.
Approved in dissenting opinion in Miller v. Stewart, 9 Wheat. 717, 6 L.
Ed. 198, majority holding bond of tax collector for performance of duties
in eight townships avoided by extending it to another township without
consent of sureties; Bailey v. Taylor. U Conn. 535, 29 Am. Dec. 324, as
to alteration of note; Stewart v. Preston, 1 Fla. 22, 44 Am. Dec. 624, as
to interlineation in assignment of mortgage; Pelton v. Preseott, 13 Iowa,
570, holding new consideration not necessary to support assent to altera-
tion of date of promissory note; Albert v. Bnhler, 3 Mart. {N. S.) 492,
holding that mere clerical error will not impair validity of bond ; Collins
V. Collins, 51 MtsB. 319, 321, 323, 24 Am. Rep. 637, 638, 640, as to inter-
lineation of deed by consent of parties after recording; Den v. Farlee, 21
N. J. L. 289, holding that alterations in deed are presumed to have been
made before execution and delivery ; Crossman v. Crossman, 95 N. Y. 153,
dissenting opinion; la re Conway's Will, 124 N. Y. 466, 26 N. E. 1032,
majority distinguishing Crossman v. Crossman, supra; McArthur v. Ladd,
5 Ohio, 518, 519, as to alteration in contract for work and labor; Franklin
v. Baker, 48 Ohio St. 304, 29 Am. St. Rep. 649, 27 N. E. 552, and Newman
v. King, 54 Ohio St. 282, 56 Am. St Rep. 710, 43 N. E. 685, as to alf^a-
tion of promissory note.
Distinguished in United Slates v. Nelson, 2 Brock. 73, 74, Fed. Cas.
15,862, as to bond under seal.
Miscellaneous. Cited erroneously in Patterson v. Gibson, 81 Ga. 805,
12 An. St. Rep. 368, 10 S. E. 10, and FuUerton v. Harris, 8 Me. 397.
9 Or. 39-43, 3 L. Ed. 619, TABEB v. PEBROTT.
' Person to wliom bill of excbange tntruEted to deliver to another for collec-
tion, Is competent witness for owner of bill In action to recover from collector.
Cited in Kilpatrick v. Sisneros, 23 Tex. 137, arguendo.
9 Or. 43-65, 3 II Ed. 660, TEBEETT v. TAT1.0B.
IiSflsiatlve grant Is a contract and as sucb la IrrevocaMa.
Approved in Ponce v. Roman Catholic Apostolic Church, 210 V. 6. 314,
52 L. Ed. 1076, 28 Sup. Ct. 737, upholding Spanish grant to Roman Catholic
/
651
TERRETT v. TAYLOR.
9 Cr. 43-65
church in Porto Rico; Western Indemnity Co. v. Pillsbury, 170 Cal. 733,
151 Pac. 417, 10 N. C. C. A. 62, holding Workmen's Compensation Act did
not deprive employer of property without due process of law; Stouten-
bafgh V. Frazier, 16 App. D. C. 240, 48 L. R. A. 220, holding void act of
1898 providing for arrest of "suspicious persons" as in violation of rights
of personal liberty; State v. Whitney, 66 Wash. 489, 120 Pac. 122, hold-
ing grant of school lands to State not subject to be recalled; dissenting
opinion in State v. Cantwell, 142 N. C. 616, 9 Ann. Oas, 141, 8 L. R. A.
(N. S.) 498, 55 S. E. 824, majority holding exemption from jury duty to
"members of fire-engine company was not contract; Dartmouth College v.
Woodward, 4 Wheat* 695, 4 L. Ed. 673, denying power of legislature to
ttiodify charter granted to educational corporation by English crown prior
to Revolution ; Planters' Bank v. Sharp, 6 How. 332, 12 L. Ed. 460, hold-
^^ unconstitutional statute prohibiting bank from transferring notes and
oiils by indorsement, bai^k having been empowered by charter to acquire
*nd dispose of property of all kinds; State Bank v. Knoop, 16 How. 389,
^^ L. Ed. 985, denying right of legislature to repeal clause in charter
exempting corporation from taxation; dissenting opinion in Illinois -etc.
jR. H. Co. V. Illinois, 146 U. S. 475, 36 L. Ed. 1051, 13 Supfct. 126, major-
ity iiolding that railroad company had no right as riparian owner to re-
claim land on shore of lake ; D^glas v. Kentucky, 168 U. S. 500, 42 L. Ed.
55r, 1.S Sup^ ct, 203, denying right of legislature to impair vested rights
miex" grfent of power to conduct lottery; Southern Pacific Co. v. Orton,
^^^^?v^. 182, 32 Fed. 471, holding that in action of trespass brought by
^ot-poration authorized to receive grants of land, defendant cannot dispute
&rjthority of corporation to take land in question ; Gray v. Davis, 1 Woods,
^*> ^ed. Cas. 5715, holding that coi'porate charter cannot be annulled by
.^'^^^sions of State Constitution subsequently adopted; Magill v. Brown,
-p^ed. Cas. 413, 419, as to grant *to unincorporated religious society; dis-
th^l^'^^ opinion in Dale v. Governor, 3 Stew. 418, 423, majority holdings
^ ^ a.ct of legislature settling annuity , for military services rendered
Q ^^ xxo interest in annuity until paid, and was repealable; Stone v.
fit^^^^^» 46 Ala. 275, ruling similarly as to grant to individual; Boyd v.
. ^y 4i6 Ala. 334, denying right of legislature to repeal grant of power
R •^^'^^^ct lottery during year for which license already paid; Micou v.
ot ^^ Co., 47 Ala. 656, holding that grant of power to build bridge can-
, , *^^ impaired by grant of power to another company to build similar
\) ; Commissioners v. Rather, 48 Ala. 447, and Howard v. Jones, 50
^*' ^O, denying right of legislature to charge remedy upon contracts so
^ ^ iinpair obligation ; Montgomery v. Kasson, 16 Cal. 194, as to grant
^ ^^V^lic lands; -Seymour v. Hartford, 21 Conn. 486, denying right to re-
PJJ^ ^Xicmption from taxation; Trustees v. Bailey, 10 Fla. 130, 81 Am. Dec.
Wi firt'anting injunction to restrain appropriation of funds to other pur-
I^^^ "tlian that for which raised, so as to impair security of bondholder;
Coarxt:^ Commissioners v. King, 13 Fla. 474, holding that where statute
ptovx^^g for discharge of bonds legislature cannot impair rights of bond-
\vo^^^x^ by amendment providing insufficient means; Savannah v. Steam-
\»o*^ Co., Charlt. (Ga.) 346, 348, as to legislative grant of land to muni-
9 Cr. 43^5
NOTES ON U. S. REPORTS.
()52
cipal corporation; In re Floumoy, 1 Qa. 608, denying right of Governor
to remit portion of penalty duetto individual; Young v. Harrison, 6 Ga.
154, 155, as to grant of right to take tolls ; Hilliard v. Connelly, 7 Ga. 179,
and Winter v. Jones, 10 Ga. 196, 54 Am. Dec. 382, as to grant of land to
individual; Campbell v. Georgia, 11 Ga. 370, arguendo; Bruce v. Schuyler,
4 Gilm. 276, 278, 46 Am. Dec. 41^8, 460, as to grant to individual ; dissent-
ing opinion in Weidenger v. Spruance, 101 111. 300, majority holding valid
act of legislature changing conditions as to liability of shareholders in
corporation; Board of Education v. Bakewell, 122 111. 351, 10 N. E. 384,
denying right of legislature to transfer property of private educational
institution to State board of education; Martindale v. Moore, 3 Blackf.
279, where statute exempting executors from personal liability held not
to affect judgment rendered previous to passage; State v. Vincennes Uni-
versity, 5 Ind. 89, holding that corporation cannot be dissolved by legis-
lature because of mere loss of members; State v. Springfield Township, 6
Ind. 97, as to grant of school lands; dissenting opinion in Noel v. Ewing,
9 Ind. 58, majority sustaining right of legislature to diminish inchoate
dower; dissenting opinion in Scobey v. Gibson, 17 Ind. 577, arguing that
statute cannot act retrospectively so as to affect rights under judgment
rendered previously; Edwards v. Jagers, 19 Ind. 417, as to grant of land
to college ; Carr v. State, 127 Ind. 207, 22 Am. St. Rep. 627, 26 N. E. 779,
denying right of legislature to repeal laws providing for funding and pay-
ment of public debt; Louisville v. University, 15 B. Mon. 673, 674, deny-
ing right of legislature to control private educational institution, part of
whose lands were received from State; Gregory v. Trustees, 2 Met. (Ky.)
598, as to grant of lottery privilege under which vested rights have accrued ;
dissenting opinion in State v. Flanders, 24 La. Ann. 64, majority assert-
ing power of legislature to control municipal corporation; New Orleans
etc. R. R. Co. V. New Orleans, 26 La. Ann. 482, denying right of legislature
to impair vested property rights of municipal corporation; Yarmouth. v.
North Yarmouth, 34 Me. 418, 56 Am. Dec. 670, as to grant of school lands;
Canal Co. v. Railroad Co., 4 Gill & J. 122, 128, denying power of legis-
lature to repeal clause in charter empowering corporation to acquire prop-
erty; Appeal Court v. Patterson, 50 Md. 372, denying power to repeal
exemption from taxation; dissenting opinion in Charles River Bridge v.
Warren Bridge, 7 Pick. 494, majority holding that grant of power to build
bridge and take tolls does not imply agreement on part of State not to
grant similar privilege to another corporation; Michigan State Bank v.
Hastings, 1 Doug. (Mich.) 234, 41 Am. Dec. 551, holding void statute re-
pealing bank charter where such right not reserved; Trombley v. Hum-
phrey, 23 Mich. 483, 9 Am. Rep. 102, denying power of State to exercise
right of eminent domain in behalf of Federal government; People v. Hurl-
but, 24 Mich. 104, 9 Am. Rep. 112, and Detroit v. Detroit etc. Co., 43 Mich.
148, 5 N. W. 280, denying power of legislature to impair vested rights of
public corporation; State v. Fry, 4 Mo. 132, denying right of legislature
to pass special act granting divorce; Mitchell v. Clark, 64 Mo. 582, on
point that State legislature is bound by clause in Federal Constitution
prohibiting deprivation of property without due process of law; Northern
653
^TERRETT v. TAYLOR.
9 Cr. 43-65
J^acific R. R. Co. v. Majors, 5 Mont. 126, 2 Pac. 325, applying rule to grant
by Cougress to railway corporation; Kocnig v. Railroad Co., 3 Neb. 381,
Iioldiug that where legislature has granted land to be used for certain pur-
pose it cannot subsequently order use for other purpose; Spaulding v.
Andover, 64 N. H. 65, applying rule to grant of land to municipal corpo-
^tion; dissenting opinion in Orr v. Quimby, 54 N. H. 647, majority sus-
w^ining right of l^slature to appropriate property of corporation under
power of eminent domain; State v. Branin, 23 N. J. L. 500, holding that
^here charter exempts corporation from taxation, such exemption extends
^0 stock in hands of stockholders; Glover v. Powell, 10 N. J. Eq. 229, as
^^ grant of right to build dam, and see dissenting opinion in State v.
i^athews, 3 Jones (N. C), 464; Lowe v. Harris, 112 N. C. 481, 17 S. E.
^0, denying right of legislature to g^ive retroactive effect to statute of
/'/m Utions ; Le Clercq v. Trustees, 7 Ohio (pt. I), 221, 28 Am. Dec. 643,
folding that where land dedicated to town for public square, legislature
^•annot order town to change its character; In re Malone's Estate, 21 S. C.
^^^ 2T.xling similarly as to grant to municipality of proceeds of escheated
elates ; Grammar School v. Burt, 11 Vt. 641, as to grant to city for edu-
e«/ional purposes; and in Grammar School v. Bailey, 62 Vt. 478, 20 Atl.
^> ^>r\ same point; dissenting opinion in Prince W. Bd. v. Stuart, 80 Va.
"^^ iriajority holding valid act of legislature revoking grant for public
^'^Titable uses; Town of Milwaukee v. City of Milwaukee, 12 Wis. 102,
^^^f denying right of legislature to transfer property of one town to
soother on consolidation of latter with part of former; Attorney General
^h ^^'^^^^^ Cos., 35 Wis. 606, denying right of legislature 'to fix rates,
Lf^^^ S"Uch right granted absolutely to company by charter; Wilkinson v.
^^rta, 2 Pet. 657, 7 L. Ed. 553; dissenting opinion in Inglis v. Trustees,
/j^£l®*^- X53, 7 L. Ed. 636, Dudley v. Caldwell, 19 Conn. 227, University v.
%^^^^^ Co., 76 N. C. 107, 22 Am. Rep. 674, Knighton v. Burns, 10 Or.
»^.^^i:fcian v. Martin, 2 Utah, 157, all arguendo.
. ^^^^>guished in Milwaukee Electric Ry. etc. Co. v. Railroad Commis-
m'^^^ Wis. 619, Ann. Gas. 1915A, 911, L. R. A. 1915F, 744, 142 N. W.
' ^^^Xdirig contract of city granting franchise to street railroad under
iS62 could not fix fares so they could not be changed by act of Icgis-
► Charles River Bridge v. Warren Bridge, 11 Pet. 582, 9 L. Ed. 838,
grant to bridge company of power to build bridge and take tolls,
imply agreement on part of State not to grant similar power to
company (see also 7 Pick. 446) ; West River Bridge Co. v. Dix,
542, 548, 12 L. Ed. 549, 552, limiting rule in holding that in exer-
right of eminent domain State may appropriate private bridge for
^^^ part of highway; Rice v. Railroad Co., 1 Black, 373, 17 L. Ed. 151,
'^^*^f^ that where grant is void no vested rights are impaired by revoca-
acto"^
latur
holdi
aid
anotlv
cise o:f
tisc
\\0^» ^Pennsylvania College Cases, 13 Wall. 213, 20 L. Ed. 553, and Miller
V. ^^te, 15 Wall. 489, 21 L. Ed. 101, where power of amendment or repeal
^ ^^Tter reserved by legislature ; Chicago Ins. Co. v. Needles, 113 U. S.
^^, S83, 28 L. Ed. 1087, 1088, 5 Sup. Ct. 684, 685, holding that grant of
^er is subject to condition that it shall not be abused, and that when
^abused it may be revoked; Eagle Ins. Co. v. Ohio, 153, U. S. 464,
38
M
;:
\ ''V
i '13'
; ! i ,
9 Cr. 43-65
NOTES ON U. S. REPORTS.
656
ancc of quo warranto writ against corporation, such power cannot be
impaired by l^slature; State v. Railroad Co., 24 Neb. 156, 8 Am. St. Sep.
172, 38 N. W. 47, where act of railroad company in leasing lines held
cause for forfeiture, such power not being given by chapter; People v.
Bank of Hudson, 6 Cow. 219, holding further that judgment in ^ch case
is one of seizure; People v. Turnpike Co.^ 23 Wend. 235, decreeing for-
feiture for failure to maintain road as required by charter; Thompson v.
People, 23 Wend. 590, decreeing forfeiture of franchise of individuals for
failure to construct bridge as stipulated; Bradt v. Benedict, 17 N. Y. 99,
on point that to constitute dissolution of corporation by surrender of
charter, such surrender must be accepted by legislature; State v. Choate,
11 Ohio, 519, on point that public officer not deemed to have forfeited
right to hold office by reason of misfeasance, until fact determined judi-
cially; Commonwealth v. Bank, 28 Pa. St. 389, decreeing forfeiture of bank
charter on ground that bank charged higher rates of interest than allowed
by statute; Chincleclamouche etc. Co. v. Commonwealth, 100 Pa. St. 445,
where forfeiture of lumber company's charter decreed for failure to en-
gage in business for which chartered; State v. Bank, 1 Spears, 502, where
suspension of specie payments by bank held cause for forfeiture of char-
ter; Green v. Allen, 5 Humph. 217, to point that equity will by injunction
restrain misemployment of land granted to corporation for special pur-
pose; Dartmouth College v. Woodward, 4 Wheat. 663, 664, 4 L. Ed. 665,
666, and in dissenting opinion in Landon v. Litchfield, U Conn. 273,
arguendo.
Distinguished in Nevitt v. Bank, 6 Smedes & M. 580, 593, holding that
default cannot be set up in action on promissory note where such default
has not been judicially determined; State v. Bank, 2 McMull. L. 451, S9
Am. Dec. 139, holding that where forfeiture of charter had been decreed
but bank had continued to exist de facto, subsequent regrant of charter
operated as waiver of previous forfeiture.
Nonperformance of condition in grant of franchise, whether judicial
act declaring forfeiture is necessary. Note, 5 Am. St. Rep. 804.
Charters of public corporations may be amended or repealed by legisla-
ture.
Approved in dissenting opinion in People ex rel. Rogers v. Coler, 166
N. Y. 32, 59 N. E. 727, majority holding void labor laws of 1899, chapters
192, 567; East Hartford v. Hartford Bridge Co., 10 How. 536, 13 L. Ed.
529, holding revocable, grant to town of right to construct bridge; Lucas
V. Commissioners, 44^ Ind. 540, sustaining revocation of grant to town of
I)ower to purchase railway bonds (but see dissenting opinion, p. 548) ;
State V. B. & 0. R. R. Co., 12 Gill & J. 440, 38 Am. Dec. 326, sustaining
right of legislature to remit penalty due county under statute ; Mayor of
Baltimore v. State, 15 Md. 454, 490, 74 Am. Dec. 577, as to power of State
to regulate elections of municipal officers; Conner v. Bent, 1 Mo. 238, ex-
tending legislative control to money due municipal corporation ; St. Louis
V. Russel, 9 Mo, 511 (507), as to right of legislature to extend territorial
limits of city; Wooster v. Plymouth, 62 N. H. 210, holding that such con-
657
TERRETT v. TAYLOR.
9 Cr. 43-66
trol extends to property of mtmieipal corporation held for public purposes
(bat see dissenting opinion, p. 225) ; Mills v. Williams, 11 Ired. 564, hold-
ing" valid, repeal of act establishing county; Knoup v. Bank, 1 Ohio St.
^22, holding State bank to be public corporation, and its charter subject
to amendment by legislature; so. also in Bank v. Bond, 1 Ohio St. 670;
I'^^ehrman v. Taxing District, 2. Lea, 430, sustaining power of legislature
to Tegxilaie taxation by municipal corporation ; Stockton v. Montgomery,
^^\1. (Tex.) 485, as to power of legislature to create political divisions in
^We. And see note, 53 Am. Dec. 471, on general subject.
linaited in Van Hoffman v. Quincy, 4 Wall. 550, 18 L. Ed. 408, holding
that ^^Here city has been authorized to issue bonds, power cannot be with-
dra^TO so as to impair rights of bondholders.
^slative control over property of municipalities. Note, 35 Am. St.
Hep. 532.
^slative power to impose burdens on municipalities and to control
'their local administration and property. Note, 48 L. E. A. 465, 486.
ceptance of legislative amendments to corporate charters. Note,
£3 Am. Dec. 471.
grantor, having no title, conyeys with general warranty, sahee^Luently
fcd title will inure to grantee.
^^^^^ in Carver v. Jackson, 4 Pet. 86, 7 L. Ed. 791, where lessor at time
cuting lease had no interest; McCleskey v. Leadbetter, 1 Ga. 557;
of
hi
Ski
K
ard V. AUain, 5 La. Ann. 368, 52 Am. Dec. 596, and Somes v.
^r, 3 Pick. 60, holding further that estoppel extends to heirs and
^ of grantor; Pike v. Galvin, 29 Me. 185, and Showman v. Miller, 6
6, 487, and Rigg v. Cook, 4 Gilm. 348, 46 Am. Dec. 470, under facts
mr to those in principal case; Kimball v. Blaisdell, 5 N. H. 535, 22
t^fl^ Dec. 478, applying rule where grantor conveyed same land by different
aeeds to grantees, one of whom executed reconveyance; Brown v. Manter,
21 N. H. 537, 53 Am. Dec. 227, holding that where instrument contained
Dames of covenantor and covenantee, description of land, and covenant of
warranty, but no grant, covenantor was estopped from claiming -title;
Ross V. Adams, 28 N. J. L. 176, construing deed in passing fee-tail special ;
Blair v. Odin, 3 Tex. 299, arguendo; Galloway v. Finley, 12 Pet. 296, 9
L Ed. 1090, where principle is applied in holding that grant of public land
to person who had previously died, vested title in heirs of such person.
Lands of religious corporations may be. sold only upon joint consent of
minister and vestry.
Approved in Scott v. Gittings, 125 Md. 608, 94 Atl. 214, holding State
did not acquire right to stockholder's share indissolvcd corporation un-
claimed for forty years ; Mansfield v. Neff, 43 Utah, 275, 134 Pac. 1165,
holding unincorporated charitable association could acquire and hold real
and personal property; Masoli v. Muncaster, 9 Wheat. 455, 460, 465, 6
L. Ed. 134, 135, 136, under similar facts ; and see 2 Cr. C. C. 275, 276, 280,
281, Fed. Cas. 9247 ; Wardens v. Savannah, 82 Ga. 666, 9 S. E. 540, hold-
ing ehurch-wardens to be proper parties plaintiff in action for trespass on
1—42
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9 Cr. 55-71
NOTES ON U. S. REPORTS.
658
church property; Showman v. Miller, 6 Md. 486, 487, and Williams v.
Presbyterian Society, 1 Ohio St. 503, holding grant to pastor and trus-
tees to vest good title in fee in church society. And see dissenting opinion
in Hale v. Everett, 53 N. H. 140, where majority held conveyance to church
for special purpose void; Price v. M. E. Church, 4 Ohio, 541, payment of
money for burial in church cemetery gives no right to control church in
appropriate use of its grounds ; Burr v. Smith, 7 Vt. 285, 302, 29 Am. Dec.
166, 184, arguendo.
Implied restrictions on power of legislatures. Note, 17 L. R. A. 841.
Validity of gift to unincorporated charity. Note, 32 L. R. A. 626.
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 ; Osborne v. United States Bank, 9 Wheat. 894, 6 L. Ed.
241, as instance where corporation held to have existed under common law ;
Trustees of Bishop's Fund v. Rider, 13 Conn. ^6, to point that executory
legislative contract, where no consideration has passed, is subject to repeal
at will of legislature. ,
9 Cr. 56-64, 3 L. Ed. 655, THE SHORT STAPLE v. UNITED STATES.
Burden of proof in proceeding for forfeiture under embargo Acts, la on
claimants.
Cited in The Meteor, 17 Fed. Cas. 197, in proceeding against vessel for
violation of neutrality laws.
Distinguished in The William King, 2 Wheat. 152, 4 L. Ed. 207, under
facts.
9 Cr. 64-71, 3 L. Ed. 658, PABEER Y. RULE.
Validity of tax deed dei>end8 upon compliance with requirements of stat-
ute'regulating sucli sales.
Approved in Columbia Finance'& Trust Co. v. Fierbaugh, 59 W. Va. 338,
53 S.-E. 470, holding tax title void; Williams v. Peyton, 4 Wheat. 83, 4
L. Ed. 520, holding sale void where requirements not shown to have been
performed by af&rmative proof; Early v. Homan, 16 How. 618, 14 L. Ed.
1083, where notice not given as required; United States v. Pacific R. R.
Co., 1 McCrary, 7, 1 Fed. 102, holding lien for taxes does not attach until
notice given; United State^ v. Allen, 14 Fed. 265, annulling sale under
revenue laws on same ground; Lyon v. Hunt, 11 Ala. 312, 46 Am. Dec.
223, where land not described in notice as required by statute; Hobart v.
Frisbie, 5 Conn. 595, and Mitchell v. Kirkland, 7 Conn. 231, applying prin-
ciple to sale on execution and annulling sale because of insufficiency of
notice ; Curtis v. Swearingen, Breesc, 141, and Taylor v. Whiting, 2 B.
Mon. 272, annulling sales in absence of affirmative proof of compliance
with statute; St. Anthony Falls etc. Co. v. Greely, 11 Minn. 326, denying
right of collector to collect tax where notice not given; Reeds v. Morton,
9 Mo. 886 (875), holding tax deed invalid where not recorded as provided
by statute; Cahoon v. Coe, 57 N. H. 569, where notice not posted as i«-
I
J
*8 NOTES ON U. S. REPORTS. fl Cr. 71-86
Viixei by statute; Jackson v. Shepard, 7 Cow. 92, 17 Am. Dec. 506, hold-
~S burden of proof to be on person claiming under deed ; Register v.
ff"; 2 Hanks, 21, holding sale en masse invalid where land susceptible
^ ^ivisioo; Uinchie v. MoUens, 5 Hayw, (Tenn.) 93, annulling sale made
^'Aout notice; Hall v. Collins, 4 Vt. 324, and Flannagau v. Grimmett, 10
f Kr^' ^^^' holding that compliance must be alleged and proved; Dequasie
gre^^**iTis, 16 W, Va. 353, construing strictly, statute providing that tax '
f-^ shall be prima facie evidence of regularity of sale,
ot ji^'inguiahed in Hutchins v. Lee, Walk. (Miss.) 294, where provisions
^***te regulating sale of fugitive slaves held merely directory.
^s^I.~7B, 3 L. Ed. 6«D, THE STEUOOI^B t. UinTED STATES,
^x ^''Ounstancea jatiy outwelgli positive testlmimy.
^^^^d in The Bark John Griffin, 4 Ben. 26, Fed. Cas. 7348, holding, in
^^ftedings against vessel for smu^lii^, that positive testimony of crew
was outweighed by circumstance that contraband goods were found on
hosrd and by fact of probable interest ; The Meteor, 17 Fed. Cas. 197, con-
demning vessel fitted out and armed in violation of neutrality laws, where
there «as no evidence to explain suspicious circumstances surrounding
•litioQs of vessel.
' ^- 7»~86, 3 I.. Ed. 662, JLANDOLFB v. DONALDSON.
United States manBol Is sot liable for escape of ptlaoner wbom he baa
'^"^"UttM to State jaiL
■Approved in Ex parte Shores, 195 Fed, 630, holding sheriff in eharge of
L^^* Jail guilty of contempt for permitting Federal prisoner to go at
^^«; A.very v. Pima County, 7 Ariz. 33, 60 Pac. 704, sheriff not entitled
& ^'*'*^ P*y ^<" "^^ "^ Federal prisoners; United States v. Ewing, 140
tf' ^- 1-45, 35 L. Ed. 389, 11 Sup. Ct. 744, United States v. Harden, 4
3?6 ^^- 463, 10 Fed. 809, United States v. Ebbs, 4 Hughes, 482, 10 Fed.
i ' ■*^ Jed. 155, and Erwin v. United States, 37 Fed. 485, holding that as
iRCtM^"^ «f State jail is not deputy of United States marshal, mittimus is
^^. ^^*y in order to authorize such keeper to detain prisoner as against
^ . ^^ corpus "from State court; United States v. Martin, 9 Sawy. 95, 17
-^S4, holding that keeper of State jail is not obliged to deliver pris-
,, *-<^ Federal court without vraitten order from court; In re Hartwcll,
."'*"- 537, Fed. Cas. 6173. sustaining right of State authorities to remove
^ 'IL t*X-i3oner to another jail; Ex parte Paris, 3 Wood. & M. 235, Fed. Cas.
,^ *. holding that order to bring prisoner up for trial should be ad-
• ^^ directly to keeper of State jail; In re Birdsong, 39 Fed. 600, hold-
in **^ jailer liable personally for mistreatment of prisoner; State V.
re»a, charlt. (Ga.) 409, holding sheriff not liable for negligeuco of jailer
'^>^^'ting in escape of prisoner; Nail v. State, 34 Ala. 266, and Moore v.
T^T*' 7 J. J. Marsh. 651, ai^uendo.
*-*iatinenished in Lewis v. Marsh, 38 Fed. 796, where marshal held liable
'" Escape of prisoner from deputy marshaL
9 Cr. 87-102
NOTES ON U. S. REPORTS.
660
9 Cr. 87-102, 3 L. Ed. 665, POLE'S LESSEE y. WENDAL.
Federal courts will adopt construction of State statute settled by State
courts.
Approved in Waide v. Travis Co., 174 U. S. 608, 48 L. Ed. 1064, 19 Sup.
Ct. 718, following 91 Tex. 361, upholding county bond issue ; Fay v. Crozer,
156 Fed. 499, applying rule to statute forfeiting^ lands for nonpayment of
taxes ; 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; Cumberland Bldg. ^c. Assn. v. Sparks, 106 Fed. 102, following
Arkansas decision that records of mortgages are not Hens unless properly
acknowledged; Williams v. Gold Hill Min. Co., 96 Fed. 465, following
California decisions that judgement creditors of mining corporation may,
question validity of mortgage on ground that it was not ratified by stock-
holders; Jackson v. Chew, 12 Wheat. 168, 6 L. Ed. 589, construing statute
regulating devises of lands; Green v. Neal's Lessee, 6 Pet. 296, 8 L. Ed.
404, construing statute of limitations as applied to action of ejectment;
Fairfield v. County of Gallatin, 100 U. S. 52, 26 L. Ed. 646, as to construc-
tion of State Constitution ; Burgess v. Seligman, 107 U. S. 34, 27 L. Ed. 366,
2 Sup. Ct. 22, as to statute prescribing liability of stockholders for debts
of corporation; McArthur v. Scott, 113 U. S. 391, 28 L. Ed. 1031, 5 Sup.
Ct. 667, as to statute reg^ating descent, applying iaile although similar
statute receives opposite construction in other States; Thompson v.
Phillips, 1 Bald. 284, Fed. Cas. 13,974, construing statute prescribing effect
of sheriff's deed; Blanchard v. Sprague, 1 Cliff. 290, Fed. Cas. 1516, as
to statute prescribing rules of evidence ; Loring v. Marsh, 2 Cliff. 319, Fed.
^Cas. 8514, refusing to reverse judgment based upon construction of State
statute regarding contract law, although State court had subsequently
adopted different construction; Merrill v. Portland, 4 Cliff. 144, Fed. Cas.
9470, as to construction of municipal regulations ; Hiller v. Shattuck, Flipp.
274, Fed. Cas. 6504, construing statute allowing new trials in actions of
ejectment; In re Wyllie, 2 Hughes, 459, Fed. Cas. 18,112, construing
** homestead exemption" clause, in insolvency statutes; Mitchell v. Lippin-
cott, 2 Woods, 472, Fed. Cas. 9665, as to statute limiting capacity of mar-
ried woman to mortgage separate estate; State v. Grand Trunk Railway, 3
Fed. 888, construing statute defining liability of railroads for injuries re-
sulting from negligence; New Orleans Water Works v. Southern Brewing
Co., 36 Fed. 834, and Evansville v. Woodbury, 60 Fed. 720, 18 U. S. App.
514, construing grant of power to municipal corporation; Lookout Moun-
tain Ry. Co. V. Houston, 44 Fed. 450, holding that where cause is removed
to Federal court after decision on demurrer in State court, such decision
is binding on Federal court; Hearfield v. Bridges, 75 Fed. 51, 44 U. S.
App. 574, as to statute defining rights of husband and wife in community
property; Willis v. Commissioners, 86 Fed. 873, following decision of State
court declaring statute unconstitutional; Prentice v. Zane, 19 Fed. Cas.
1272, as to statute defining liabilities of parties to negotiable note; Blood-
good V. Grasey, 31 Ala. 589, construing ^statute respecting emancipation
«1 POLK'S LESSEE v. WENDAL. 9 Cr. 87-102
of ilaTes; Hempstead v. Reed, 6 Conn. 487, IfeClure v. Owen, 26 Iowa,
254, Levy v. Mentz, 23 La. Ann. 262, ai^endo.
IHstiognished in Beals v. Hale, 4 How. 54, 11 L. Ed. 873, where decision
^lied upon was not rendered in court of last resort; Foxcroft v. Mallett, 4
How. 379j n L Ed. 1020, ruling otherwise as to constraction, by State
*Ottrt, of deed by rules of common law; Webster v. Cooper, 14 How. 504,
^J L. Ed. 517, and Wither* v. Bnckloy, 20 How. 89, 16 L. Ed. 818, where
'jll^te in conflict with State Constitution; Railroad Co. v. 'National Bank,
^.^ V. S. 63, 26 L. Ed. 76, denying authority of State decisions on ques-
<^0i of general commercial law; Hart t. Burnett, 15 Cal. 603, discussing
""'Wo land title.
^.^'wited in Lauriat v. Stratton, 6 Sawy. 347, 11 Fed. 114, holding that
l^Q.^''^ there is but one decision on statute in question, Federal court is
^ wond by it if clearly erroneous.
Questions of State law as to which State conrt decisions must be
followed in actions originating in, or removed to. Federal courts.
Note, 40 L. R. A. (N. S.) 388, 418.
TQimg«r frateut on elder entrr prevaUs over elder patont on younger entry.
Approved in Westfeldt v. Adams, 159 N. C. 420, 74 S. E. 1045, holding
pant not subject to collateral attack ; Payne & Butler v. Providence Gas
t^-. 31 R. I. 328, 332, Ann. Oas. lfll2B, 85, 77 Atl. 158, 160, npholdin-
j*ue to fishing grounds; Stockard v. McGary, 120 Tenn. 184, 191, 193, 195,
m s. W. 508, 510, 511, holding grant from State on entry made in L.
^unty^ which identified land and stated it was in L. County, prevailed
*f' junior grant on entry in W. County, the land being in W, County;
C" ■«'- Eeed, 1 Wheat. 486, 4 L. Ed. 142, under similar facts; McAfee v.
U^» V Smedes ft M. 789, 45 Am. Dec. 333, holding title of actual set-
(pl' ^****iplying fnlly with requirements, superior to title claimed by mere
Q^ ^Yid patent, although later patent he the older; Lee v. Summers, 2
IV ^» holding that legal title under patent relates hack to date of entry,
j|i,j *i *»guished in Chavez v. De Sanchez, 7 N. M. 86, 32 Pac. 146, holding
Ctp ***»-"tent issued by United States will prevail over grant by Spanish
, '^i
where sach grant not confirmed as required by act of Congress.
g^^^*»-"t.ed in Parkison y. Bracken, 1 Pinn. 181, 39 Am. Dec. 298, holdii^
*^^*."tent conclusive in action at law.
^^ ^"^ent raises preaiiniFtlon that all preiequlslteB of law have, been com-
^j^E**^ved in United States v. Cowart, 205 Fed. 318, holding proof of
\7' in procurement of patent insufficient to justify setting it aside;
^^ ^-*-d V. Asher Lumber Co., 131 Fed. 691, 695, 65 C. C. A. 517, under
v^ ' ^Stats. Ky., 0. 102, § 3, where same person obtained survey of several
* ^^ of two hundred acres each, patent for lands so surveyed is not void
"!« ' ^""''•"^y ^°^^ ^^'^- ^°- "■ ^'"'^ ^'" **'"■ *^ ' ^"^ ^*^- ^^^' ^°^^'
il* l^^tent for lode mining claim is not restricted to surface ground which
iJ* ^ be taken under single location; Old Dominion Copper Min. etc. Co,
<■ ^a,Terly, 11 Aiir,. 250, 90 Pac, 337, upholding patent under homestead
9 Cr. 87-102
NOTES ON U. S. REPORTS.
662
entry ; Crawford County Bank v. Baker, 95 Ark. 442, 130 S. W. 558, hoH-
ing homestead entry properly canceled; Jay v. Van Bibber, 94 Md. 690, 61
Atl. 418, holding statement of land commissioner denying verbal notice of
caveat against issuance of patent, sufl&cient to controvert contestant's affi-
davits ; United States v. Arredo^do, 6 Pet. 728, 730, 731, 8 L. Ed. 561, 562,
in suit involving grants of land by Spanish ofl&cers in Florida before acqui-
sition by the United State?; Brush v. Ware, 15 Pet. 105, 10 L. Ed. 677,
sustaining patent founded on assignment of certificate of military right;
Minter v. Crommelin, 18 How. 88, 15 L. Ed. 279, holding patent to Indian
lands prima facie evidence that Indian reservee had abandoned such lands ;
Clements v. Macheboeuf, ^2 U. S. 425, 23 L. Ed. 507, holding that where
deed is regular on face, invalidity must be established by affirmative proof;
Hardy v. Harbin, 4 Sawy. 547, Fed. Cas. 6060, applying principle to Mexi-
can land grant ; Harkrader v. Carroll, 76 Fed. 476, as to patent of mineral
lands; Mayor of Mobile v. Eslava, 9 Port. 596, 33 Am. Dec. 332, as to
grant executed by ofl&cer of Spanish government; so also in Kennedy's
Exi-s. V. Jones, 11 Ala. 86; Knabe v. Burden, 88 Ala. 439, 7 South. 93,
applying rule to certificate of entry given by land commissioner; Yount
V. Howell, 14 Cal. 469, holding that courts will take judicial notice of such
patent, as authenticated by signature of president and seal of government;
Payne v. Treadwell, 16 Cal. 229, ruling similarly in construing grant by
Mexican Governor; Johnson v. Drew, 34 Fla. 137, 43 Am. St. Rep. 177, 15
South. 782, holding such patent prima facie evidence of title of govern*
ment and authority of officer to convey; Winter v. Jones, 10 Ga. 206, 54
Am. Dec. 390, 391, holding that warrant and survey of land and payment
of price gives purchaser right to action of ejectment; McKinney v. Bode,
33 Minn. 453, 23 N. W. 853, holding patent not impeachable for mere
irregularity in proceedings; Kissell v. St. Louis Public Schools, 16 Mo.
582, as to g^ant to city of school lands; Cramer v. Keller, 98 Mo. 282, \ 11
S. W. 735, as to grant of swamp-lands; Ming v. Foote, 9 Mont. 219, 23
Pac. 520, ruling similarly in case of grant by State land officers; American
Dock etc. Co. v. Trustees, 39 N. J. Eq. 448, 449, as to grant by State of
lands below tide water; dissenting opinion in Pino v. Hatch, 1 N. M. 140,
majority holding burden of proof on grantee to show authority of Mexican
officers to execute grant; People v. Mauran, 5 Denio, 400, entertaining
ejectment by holder of patent from State; Bell v. Duncan, 11 Ohio, 197,
holding that in case of issue of patent to assignee, there is no presumptive
notice of latent defects in assignment; Delay v. Chapman, 3 Or. 461, and
Blakesley v. Caywood, 4 Or. 288, construing grants under ** Donation
Act''; Neal v. College, 6 Yerg. 197, applying rule in case of grant for
military services; Parkison v. Bracken, 1 Pinn. 180, 39 Am. Dec. 297,
holding patent conclusive evidence of title in action at law, and evidence
is aduiissible to show adverse equitable title; State v. Batchelder, 5 Minn.
237, 242, 80 Am. Dec. 414, 418, Ferry v. Street, 4 Utah, 537, 11 Pac. 576,
arguendo.
Distinguished in Patterson v. Jenks, 2 Pet. 237, 7 L. Ed. 409, holding
it to be error to instruct jury that no fraud of public officer could invali-
663 POLK'S LESSEE v. WBNDAL. 9 Cr. 87-102
date publie grant; Reeder v, Barr, 4 Ohio, 459, 22 Am. Dec. 763, where
patent issued to person as assignee, and such patent held to give notice of
existing equities.
Limited in Sabariego v. Maverick, 124 U. S. 281, 31 L. Sd. 438, 8 Sap.
Ct. 472, holding that patent to lands confiscated by government because
of treason of owner raises no presumption that such treason was judicially
determined; Ooode v. McQueen, 3 Tex. 255, holding burden of proof to
be on patentee to show authority of officer to issue it.
Patent la void at Uw If SUte bad no titlo, or if ottcvr isaoing it bad no
antboilty to do bo.
Approved in Reeve v. North Carolina Land etc. Co., 141 Fed. 823, fol-
lowing rule; United States v. Conway, 175 U. S. 68, 44 L. Ed. 75,. 20 Sup.
Ct. 16, holding action of Congress under 11 Stat. 374, confirming arrant
of pueblo to Indians is not. subject to judicial review; Lochhard v. Asber
Lumber Co., 123 Fed. 490, 491, 500, holding Rev. Stats. Ky. 1852, chapter
102, did not authorize two or more entries in one survey; Witherspoon v.
Olcott, 119 Fed. 177, upholding patent to Texas State lands although sur-
vey made by surveyor working outside his district; King v. M'Andrews,
111 Fed. 863, holding land patent without jurisdiction of department may
be collaterally attacked; Peahody Gold Min. Co. v. Gold Hill Min, Co., Ill
Fed. 820, refusing to declare void mining patent under which rights had
been exercised for over fifty years; United Land Assn. v. Knight, 3 Cal.
I'nrop. 217, 23 Pac. 269, holding patent subject to attack on ground that
land ofBce had no power to issue it; Horsky v, Moran, 21 Mont. 354, 53
Pac. 1067, holding party not showing privity with United States cannot
collaterally attack town site patent ; Whitehill v. Victorio Land & Cattle
Co., 18 N. M. 529, 139 Pac. 187, holding void entry of lands not subject
to jurisdiction of land department; Davis v. Moylea, 76 Vt. 32, 56 Atl.
176, jrrant of land from State conveys only State's title; dissenting opinion '
in McCarter v. Sooy Oyster Co., 78 N. J. L. 416, 433, 75 Atl. 220, 226,
majority holding, in action by State to recover tide-lands, evidence that
grant was void because land waa natural oyster-bed not subject to grant
was inadmissible; Polk v. Wendell, 5 Wheat. 302, 5 L. Ed. 94, where entry
on public lands was under forged warrant; Rice v. Railroad Co., 1 Black,
375, 17 L. Ed. 162, holding void, act of territorial legislature granting to
railroad land to which territory had not title; Morton v. Nebraska, 21
Wall. 675, 22 L. Ed. 645, where land granted had been previously reservofl
from sale; Doolan v. Carr, 125 U. S. 625, 626, 629, 31 L. Ed." 847, 848,
8 Sup. Ct. 1231, 1233, 1236, admitting evidence of grant from Mexican
ROvemment properly confirmed, to show want of power of land office to
issue patent to same land; but see dissenting opinion, p. 634, 31 L. Ed. 850,
where principal case distinguished; Knight v. United States Land Assn.,
142 U. S. 176, 35 L. Bd. 979, 12 Sup. Ct. 262, following Doolan v. Carr,
supra; Noble v. Railroad Co., 147 U. S. 174, 37 L. Ed. 127, 13 Sup. Ct. 274,
holding that defect in patent may be sliown in any collateral proceeding;
but see St. Louis etc. Co. v. Green, 4 MeCrary, 235, 13 Fed. 210, citing
principal case to opposite effect; Patterson v. Tatum, 3 Sawy. 173, Fed.
9 Cr. 87-102
NOTES ON U. S. REPORTS.
664
/
Cas. 10,830, holding patent void where fand in question granted to another
prior to acquisition of title by United Stafes; Chamberlain v. Marshall,
8 Fed. 409, holding tax sale of lands held under void grant, ineffectual to
convey title; Lake Superior etc. Co. v. Cunningham, 44 Fed. 832, 838,
allowing defendant in ejectment to set up title in third person; Lakin v.
Dolly, 53 Fed. 336, holding such patent impeachable in collateral pro-
ceeding; Northern Pacific Ry. Co. v. Cannon, 54 Fed. 258, 7 U. S. App.
507^ holding void, grant of land previously reserved from sale; United
States V. Winona etc. Ry. Co., 67 Fed. 956, 959, 32 U. S. App. 272, holding
void, grant by lund department of military lands; Garrard v. Silver Peak
Mines, 82 Fed. 583, 587, where grant was of land previously reserved;
United Land Assn. v. Knight, 85 Cal. 462, 480, 24 Pac. 821, 825, where
government had no title (see 142 U. S. 176, 35 L. Ed. 979, 12 Sup. Ct. 262,
supra) ; Chever v. Homer, 11 Colo. 75, 7 Am, St. Rep. 222, 17 Pac. 498,
where State had no title'; Wright v. Nagle, 48 Ga. 391, ruling similarly
as to grant of exclusive right by municipal corporation, when power to
make such grant not included in corporate charter; Ballance v. McFadden,
12 111. 324, holding void,, patent issued to person who had not complied
with law as to settlement; Bruckner's Lessee v. Lawrence, 1 Doug. (Mich.)
30, holding grant void if at same time land is in possession of another
claiming under title adverse to grantor; Webber v. Pere Marquette Booili
Co., 62 Mich. 637, 30 N. W. 473, where government had previously con-
veyed some land to other person; Perry v. O'Hanlon, 11 Mo. 595, 49 Am.
Dec. 109, where land previously reserved from sale; Easton v. Salisbiiry^
23 Mo. 106, holding also that subsequent repeal of such reservation does
not operate to confirm void patent; Magwire v. Tyler, 40 Mo. 434, holding
that elder patent conveys absolute title, and junior patent void; Le Beau
v. Arynitage, 56 Mo. 194, holding that Congress cannot confirm void patent
as against one regularly issued previous to such confirmation; Mantle v.
Noyes, 5 Mont. 291, 294, 5 Pac. 862, 864, holding that under statute patent
to placer claim passes no title to previously located quartz claim; Talbott
V. King, 6 Mont. 108, 9 Pac. 442, and Silver Bow etc. Co. v. Clark, 5 Mont.
422, 425, 5 Pac. 580, 582, holding that patent to mining claim relates back
to date of location, and is not defeated by intermediate town site patent;
Rose V. Richmond M. Co., 17 Nev. 64, 27 Pac. 1113, holding that running
claims are not open to relocation until rights of former locator abandoned
or forfeited; Miller v. Tobin, 16 Or. 552, 16 Pac. 168, as to patent issued
by land oflfice for land included in previous grant to State; Overton v.
Campbell, 5 Hayw. (Tenn.) 167, 173, 203, 9 Am. Dec. 785, holding that
void grant is attackable collaterally in any action; Moss v. Gibbs, 10
Heisk. 286, where State had no title; so also in Calloway v. Hopkins, 11
Heisk. 377; Sherwood v. Fleming, 25 Tex. Supp. 427, holding legislative
act cannot confirm void patent so as to defeat rights accruing under second
patent issued before such act; Blankenpickler v. Anderson's Heirs 16
Gratt. 62, holding patent void, where grantee dead at time of issue; Ran-
dolph V. Longdale Iron Co., 84 Va. 466, 5 S. E. 34, holding patent void
on face impeachable in any collateral proceeding; Hart v. Burnett, 15 Cal.
612, arguendo; Horsky v. Moran, 53 Pac. 1067, holding mining claimant
6G5 THE RICHMOND v. UNITED STATES. 9 Cr. 102-llM
estopped by l«ches from attackiog town titles; notes, 3 Or. 399, and 2
Overt. 37.
Diatinguiahed in Patterson v. Winn, 11 Wheat. 382, 6 L. Ed. 500, deny-
ing retroactive effect of statute restricting size of grant; Wright v. Roso-
beny, 121 U. S. 520, 30 L. Ed. 1048, 7 Sup. Ct. 999, Anderson v. Bartda,
7 Colo. 264, 3 Pac. 229, Hancock v. McKinney, 7 Tex. 440; Todd v. Fishor,
26 Tei. 241, and Bryan v. Shirley, 53 Tex. 458, holding grant not avoided
by mere irregularity in manner of issue; Colorado Coal Co. v. United
States, 123 U. S. 325, 31 L. Ed. 189. 8 Sup. Ct. 140, holding that whora
"coal lands" are reserved from sale mere surface indications of coal will
not invalidate ^ant, and harden of proof is on government to show thom
to be in fact coal lands; St. Paul & N. P. Ry. Co. v. St. Pawl, W. & M.
Ry. Co., 57 Fed. 273, holding exceaalve grant voidable only; New Dundor-
be'ig Mining Co. v. Old, 79 Fed. 602, 49 U. S. App. 208, Doll v. Jleador,
16 Cal. 330, holding auch patent not attackable collaterally unless void
on face; Gamer v. Willett, 18 111. 456, where Congress had confirmed
patent irregularly issued; Hollinan v. Peebles, 1 Tex. 700, holding >th at
abandonment of patent cpnfers authority on United States to regrant;
Carson City etc. Co. v. North Star etc. Co., 73 Fed. 600, holding that stat-
ute limiting size of grant does not limit number of grants that may be held.
OonfllctliiK claims under a patent are snbject to Jnrlsdlctton of equity
Approved in Reeve v. North Carolina Land etc, Co., 141 Fed. 825, fol-
lowing rule; Smelting Co. t. Kemp, 104 U. S. 642, 648, 652, 26 L. Ed.
877, 879, 880, where patent tainted with fraud ; Smythe v. Henry, 41 Fed.
716, entertaining bill to qniet title; Arnold v. Grimes, 2 G. Greene, 83, 84,
De Armea v. New Orleans, 5 La. 178, Cook's Lessee v. Carroll, 6 Md. 112,
and Green v. Barker, 47 Neb. 942, 68 N, W. 1034, all denying jurisdiction
to entertain action at law where fraud set up; Sykes v. McRory, 10 Ga.
471, 54 Am. Dec. 404, holding that mistake as to grantee can be corrected
only by scire faciae; Davis v. Davis, 9 Mont. 278, 23 Pac. 717, arguendo.
Limited in Sharp v. Stevens, 6 Sawy. 50, Fed. Cas. 12,710, holding that
patent can be impeached in equity only by directly pleading fraud or
mistake.
Seventl entitefl by one peison may be united In one patent.
Approved in Nickels v. Commonwealth, 131 Ky. 80, 64 S. W. 449, and
Miller V. Breathitt Coal etc. Co., 152 Ky. 397, 153 S. W. 471, both fol-
lowing rule.
Miscellaneous. Cited in Ming v. Foote, 9 Mont. 221, 23 Pac. 522, to point
that consideration named on face of deed is not conclusive; Derby t.
Jacques, 1 CUfE. 439, Fed. Cas. 3817, but application doubtful.
9 Ci. 102-104, 3 It. Ed. SJO, THE BICHMONI> v. UNITED STATES.
SelEure wlUiont jnilsdlctiim of United Statea does not render unlawful,
proceedlogs aKalntt TMsel insUtntad after arrival wltlUn Jurisdiction.
Approved in The Tenyu Mam, 4 Alaska, 135, holding schooner standing
ontside three-mile limit but killing seals from its boats within limit was
/
9 Cr. 104r-120
NOTES ON U. S. REPORTS.
666
subject to seizure and forfeiture; Ex parte Collins, 151 Cal. 347, 129 Am.
St. Rep. 122, 90 Pac. 830, holding person extradited from Canada not im-
mune from trial for offense done after extradition but before opportunity
to return ; The Merino, 9 Wheat. 403, 6 L. Ed. 121, holding that appearance
and claim in admiralty waives objection to regularity of process to enforce
appearance; dissenting opinion in United States v. Rauscher, 119 U. S.
435, 30 L. Ed. 434, 7 Sup. Ct. 249, majority holding that person extradited
for pi^rpose of being tried for murder can be tried for no other offense;
Kerr v. Illinois, 119 U. S. 444, 30 L. Ed. 424, 7 Sup. Ct. 229, refusing
to revise decision of State court holding that forcible transfer of defend*
ant within jurisdiction renders him amenable to prosecution on criminal
charge r. In re Johnson, 167 U. S. 126, 42 L. Ed. 105, 17 Sup. Ct. 737,
sustaining indictment for murder, although prior arrest illegal; In re
Ezeta, 62 Fed. 968, holding in extradition proceedings that it is immate-
rial how party came or was brought within jurisdiction of court; United
States V. Arms and Ammunitions, 24 Fed. Cas. 863, where American vessel
seized within foreign jurisdiction for violation of neutrality laws.
Abduction or wrongful bringing of criminal into jurisdiction as de-
fense. Note, 15 L. R. A. 177.
Miscellaneous. Cited in United States v. Packi^s, 27 Fed. Cas. 288,
but not in point.
9 Cr. 104-120, 3 L. Ed. 671, ABNOLD v. UNITED STATES.
Where computation of time is to be made from act done, date on widdi
act is done is to be included.
Approved in Board of Commrs. v. Vandress, 115 Fed. 871, holding town-
ship bond act providing that it shall take effect ''from and after its publi-
cation" was in effect during whole day of such publication; Leidigh Car-
riage Co. v. Stengel, 95 Fed. 640, holding under bankruptcy act of 1898,
filing of petition on November 1, 1898, was not premature; In re Stevenson,
94 Fed. 112, holding where act of bankruptcy was committed October 20,
1898, petition could be filed on February 20, 1899; Macfarland v. Moore,
32 App. D. C. 215, ajiplying rule to time allowed by statute for instituting
condemnation proceedings; Aultman etc. Co. v. Syme, 163 N. Y. 62, 79
Am. St. Rep. 571, 57 N. E. 171, holding that in computing five years
within which execution can issue under Code Civ. Proc, § 1377, the day
on which judgment was rendered should be included; Galveston etc. S.
Ry. Co. v. Lynch, 22 Tex. Civ. 338, 55 S. W. 390, holding act of May 12,
1899, relative to submission of cause on special issues was in force after
the hour at which it was received at State department with Governor's
approval; Lapeyre v. United States, 17 Wall. 198, 21 L. Ed. 608, holding:
proclamation of President relieving certain classes from penalties to have
taken effect when signed by President and sealed with great seal of United
States; Taylor v. Brown, 147 U. S. 644, 37 L. Ed. 315, 13 Sup. Ct. 651,
holding that in computing time during which alienation of public land
acquired under patent is forbidden, day of issue of patent should be in-
667
ARNOLD V. UNITED STATES.
9 Cr. 104-120
eluded; Smith v. Draper, 6 Blatchf. 240, Fed. Cas. 13,037, construing stat-
ute imposing duty on teas; United States v. O'Neill, 19 Fed. 572, as to
statute increasing duty on liquors; United States v. Chong Sam, 47 Fed.
883, construing Chinese Exclusion Act; Vailes v. Brown, 16 Colo. 466, 27
Pac. 946, construing statute of limitations; Taylor v. ^Brown, 5|Dak. Ter.
349, 40 N. W. 530 (see s. c, 147 U. S. 644, 37 L. Ed. 315, 13 Sup. Ct. 551,
supra); Woolbright v. Sneed, 5 Ga. 171, to point that statute of limita-
tions does not begin to run until right of action accrues ; so also in Jacobs
V. Graham, 1 Blackf. 392; Ryman v. Clark, 4 Blackf. 329, construing stat-
ute prescribing time within which return on execution to be made; Swift
V. Tousey, 5 Ind. 198, construing statute prescribing time for taking ap-
peal; Coal Co. V. Barber, 47 Kan. 30, 31, 27 Pac. 115, on same point;
Batman v. McGowan, 1 Met. (Ky.) 547, construing statute requiring noticp
of intention to contest election; Mallory v. Hiles, 4 Met. (Ky.) 55, holding
act suspendtag courts effective after approval by Governor; Parkinson v.
State, 14 Md. 200, 74 Am. Dec. 533, holding that where act declares timo
when it shall take effect, it will operate at such time, although not pub-
^hed; Commonwealth v. Brooks, 109 Mass. 357, holding that municipal
ordinance takes effect from date of passage, unless otherwise specified;
fiaiJey V. Lubke, 8 Mo. App. 60, construing statute prescribing time for
**/iig appeal; Carothers v. Wheeler, 1 Or. 196, construing statute pre-
scribing time for taking appeal ; Barber v. Chandler, 17 Pa. St. 50, 55 Am.
Doc*' 534, construing statute regulating issue and return of summons;
Ex parte De Hay, 3 S. C. 565, holding void proceedings of court after time
prescribed in statute changing time for holding such court; State v.
Maneke, 18 S. C. 86, construing statute regulating issue of municipal
licenses; In re Welman, 20 Vt. 660, denying validity of petition filed on
same day that bankrupt act repealed; Robinson v. Robinson, 32 Vt. 741,
construing statute prescribing time for taking appeal; State v. Mounts,
36 W. Va. 190, 14 S. E. 410, holding that term "passage" refers to pas-
sage by legislature and not approved by Governor; Spencer v. Champion,
13 Conn. 16, arguendo.
Distinguished in In re Babjak, 211 Fed. 553, holding "not more than seven
years" from declaration gave applicant for naturalization right to file peti-
tion on seventh anniversary of declaration; Beebe v. Greene, 34 R. I. 184,
185, 32 Aj;l. 801, holding notice served on February 13, 1910, was within sixty
days after act done on January 14th, under statute excluding day act was
done; Dutcher v. Wright, 94 U. S. 560, 24 L. Ed. 132, excluding day on which
petition in insolvency i^ filed, in computing time, before such filing, within
which assignments are void; Burgess v. Salmon, 97 U. S. 384, 24 L. Ed.
1106 (see 1 Hughes, 359, Fed. Cas. 12,262), and Louisville v. Bank, 104 U.S.
475, 26 L. Ed. 777, holding that increase in internal revenue did not operate
upon goods on which tax paid before act approved, although paid on same
day that act approved ; United States v. Stoddard, 89 Fed. 701, under terms
of statute ; Wood v. Fort, 42 Ala. 642, limiting rule to remedial statutes not
prescribing punishments or penalties; Bemis v. Leonard, 118 Mass. 505,
^^ Aio. Rep. 473, and McGinley v. Laycock, 94 Wis. 208, 68 N. W. 872,
^Jiere statutes expressed different intention; Arrowsmith, Hamering, 39
iW
H'tj
:c7r' *
;!•
t'
9 Cr. 104-120
NOTES ON U. S. REPORTS.
668
Ohio St. 578, holding that rule will not prevail when actually in conflict
with right acquired earlier in point of time on same day.
Denied in In re Tyson, 13 Colo. 489, 22 Pac. 812, construing statute
prescribing time within which execution 'shall be held; Vailes v. Brown,
16 Colo. 466, 27 Pac. 946, construing statute limiting time for filing contest
of election; Weeks 'v. Hull, 19 Conn. 382, 50 Am. Dec. 252, holding that
date of act from which future time is to be ascertained, is to be excluded
from computation; Parkinson v. Brandenburg, 35 Minn. 295, 59 Am. Rep.
326, 28 N. W. 919, holding that where statute provides that it shall take
effect "from and after passage," day of passage is to be excluded.
Computation of time. Notes, 7 Am. Dec. 250; 78 Am. St. Bep. 373.
Fractions of day in computation of time. Notes, 2 Ann. Gas. 136; 26
Am. Dec. 234.
'Trom" as word of inclusion or exclusion. Note, 15 Ann. Oas. 29.
First and last days in computing time. Note, 49 L. R. A. 194.
Bight to duties accrues on arrival of goods within port of entry.
Approved in Franklin Sugar Refining Co. v. United States, 178 Fed.
747, following rule ; Dooley v. United States, 183 U. S. 155, 46 L. Ed. 131,
22 Sup. Ct. 64, applying rule under Foraker act ; 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 oper-
ative, act of 1897 governed; Ellison v. United States, 136 Fed. 972, im-
ported merchandise entered at one port for immediate transportation to
another cannot be entered for consumption at latter port before its arrival
at that port ; Hartwell Lumber Co. v. United States, 128 Fed. 309, holding
tender of entry of merchandise after its arrival within customs collection
district, but before it reaches port, is invalid, and collector may reject it;
United States v. Legg, 105 Fed. 932, holding entry is considered as made
when owner presents himself at collector's office for that purpose though
entry refused ; Meredith v. United States, 13 Pet. 494, 10 L. Ed. 262, hold-
ing, further, that duties due, constitute personal debt of importer as well
as lien upon goods; dissenting opinion in Keck v. United States, 172 U. S.
463, 43 L. Ed. 516, 19 Sup. Ct. 254, majority holding that mere conceal-
ment of goods after entering port did not constitute smuggling; United
States V. Cigars, 2 Curt. 437, Fed. Cas. 16,450, holding importation with-
out manifest complete, for purposes of forfeiture, when goods brought
within limits of port of entry; so also in United States v. Dodge, Deady,
126, Fed. Cas. 14,973; United States v. Lyman, 1 Mason, 499, Fed. Cas.
13,647, holding that action of debt lies to recover such duties; Kidd v.
Flagler, 54 Fed. 369, holding exportation complete when goods landed in
foreign port; United States v. Merriam, 26 Fed. Cas. 1239, holding entry
in custom-house not necessary to render goods liable to forfeiture for
fraud in invoicing; Brown v. Maryland, 12 Wheat. 453, 6 L. Ed. 690;
United States v. Segars, 27 Fed. Cas. 1017, 1 Abb. (U. S.) 423, Fed. Cas.
16,555, arguendo.
NOTES ON U. S. REPORTS.
9 Cr. 120-125
'i^v
distinguished in McLean v. Hager, 31 Fed. 606, holding opium exempt
^^ duty where collector refused to give permit for transshipment as
^^ired by statute.
Recovery on 1)ond cannot exceed penalty with interest (so lield in lower
^ 1 GaU. 358, Fed. Gas. 14,469, but point not raised on appeal).
^oy^fProved in American Sugar Refining Co. v. Bidwell, 124 Fed. 686,
j'a ^ '^g" sugar shipped from Porto Rico before annexation but arriving after »
^^* X ^^^i^^^ ^^ duty; American Sugar Refining Co. v. Bidwell, 124 Fed.
t^^^O, 681, holding goods arriving from Philippine port after treaty
J^V^ion though shipped before are not subject to duty; Lawrence v.
^^ States, 2 McLean, 686, Fed. Cas. 8145, as to postmaster's bond;
ViK^ia V. Dwight, 10 Conn. 103, fixing amount of liability of surety on
promissory note; Eraser v. Little, 13 Mich. 202, 87 Am. Dec. 744, holding
that recovery on replevin bond cannot exceed penalty and costs of suit;
Clark v. Bush, 3 Cow. 158, as to bond of indemnity against partnership
debts; Boyd v. Boyd, 1 Watts, 369, allowing as damages, interest beyond-
penalty in administrator's bond; Perry v. Horn, 22 W. Va. 385, applying
rule in action on injunction bond; Lyon v. Clark, 8 N. Y. 156, arguendo.
Distinguished in Randle v. Barnard, 99 Fed. 353, allowing interest
on damages in suit on lessee's bond from date of breach of bond to
date of judgment; Rhyne v. Rhyne, 160 N. C. 560, 76 S. E. 470,
where defendant, as security for contract to pay plaintiff reasonable
sum yearly for support, gave bond, recovery on contract was not
limited to penalty on bond; New Holland etc. Co. v. Lancaster County,
71 Pa. St. 445, holding that, although penal bond in sum certain is given
to secure expense of county in building bridge, if amount of expenses ex-
ceeds" penalty, county may waive bond and Sue in contract.
Whether interest can be recovered on penal bond beyond penalty.
Note, 87 Am. Dec. 750, 754.
Penalty as limit of liability on statutory bond. Note, 55 L. R. A. 395.
Miscellaneous. Cited in United States v. Meeker, 26 Fed. Cas. 1234, to
point that interest runs only from date of demand on surety : United States
V. Reiter, 27 Fed. Cas. 779, not in point.
9 Cr. 120-122, 3 L. £d. 676, THE ST. LAWRENCE.
Quaere, whetlier one belligerent may withdraw his property from country
of oUier, on breaking out of war.
Cited in Amory v. McGregor, 15 Johns. 36, 8 Am. Dec. 209, asserting
right to do so within reasonable time.
9 Cr. 122-125, 3 If. Ed. 677, DBUMMOND v. MAGBUDEB.
Court is confined to proofs as shown by record of lower court.
Cited in Kerr v. Watts, 6 Wheat. 562, 5 L. Ed. 331, holding that higher
court will not consider a particular defense as having been waived, from
mere fact that court below did not consider it.
9 Cr. 126-161
NOTES ON U. S. REPORTS.
670
Document attested by clerk cannot be received in evidence, without cer-
tificate of presiding Judge tbat attestation is in due form.
Cited in Taylor v. Carpenter, 2 Wood. & M. 4, Fed. Cas. 13,785, as to copy
of judgment; in McRae v. Stokes, 3 Ala. 403, 37 Am. Dec. 700, holding
that attestation necessary is that prescribed for court where proceedings
had J Fennel's Liessee v. Wayant, 2 Harr. 605, holding deeds within mean-
ing of act of Congress, prescribing method of authenticating records;
Giles V. Shaw, Breese, 126, holding insufficient, certificate of judge, omit-
ting to state that attestation of judgment is "in due form"; so also in
Hiitchins v. Gerrish, 52 N. H. 206, 13 Am. Rep. 20; Chase v. Caryl, 67
N. J. L. 564, 31 Atl. 1028, construing State statute requiring authentication
of recording and cancellation of mortgiEiges ; Hatcher v. Rocheleau, 18 N. Y.
94, holding further that such certificate is conclusive of competency of
copy as evidence; Snyder v. Wise, 10 Pa. St. 161, applying principle to
judgment rendered in Justice's Court.
Admissibility of copies of records of other States. Note, 5 L. R. A.
• ^ (N. S.) 966.
9 Cr. 126-161, 3 L. Ed. 673, THE MABY.
Foreign Judgment of court of competent Jurisdiction in an action in rem
is conclusive as to matters it purports to decide.
Cited in Tompkins v. Tompkins, 1 Story, 553, Fed. Cas. 14,091, to de-
cree of Probate Court ordering sale of personal property ; Bradstreet v.
Insurance Co., 3 Sumn. 605, Fed. Cas. 1793, to sentence of condemnation
for illicit trading; Alabama etc. Ry. Co. v. Jones, 1 Fed. Cas. 282, 7 Bank.
Reg. 171, to decree of District Court in bankruptcy proceedings; The
Hendrik Hudson, 11 Fed. C^is. 1093, to decree of sale of vessel to satisfy
bottomry bond; Thoms v. Southard, 2 Dana, 482, 26 Am. Dec. 473, hold-
ing decree of admiralty in proceeding to enforce lien, conclusive as to
title; Whitney v. Walsh, 1 Cush. 32, 48 Am. Dec. 590, holding decree of
forfeiture conclusive as to legality of seizure; so also in Tracey v. Corse,
58 N. Y. 151; Williams v. Saunders, 5 Cold. 78, holding decree of register
of wills, directing distribution of property, conclusive as to facts on which
it is based; likewise in Brown v. Brown, 86 Tenn. 319, 7 S. W. 647, as to
decree admitting will to probate; Allen v. United States, Taney, 117, Fed.
Cas. 240, applying rule to admiralty decree.
Distinguished in Bumham v. Webster, 1 Wood. & M. 178, Fed. Cas.
2179, holding evidence admissible to show want of jurisdiction of such
court; so also in The Trenton, 4 Fed. 659, 661, Sneed v. Ewing, 5 J. J.
Marsh. 465, 22 Am. Dec. 47, and Richardson v. Seevers, 84 Va. 267; Ash-
brook V. Golden Gate, Newb. 306, Fed. Cas. 574, where action was at com-
mon law and against owners of vessel personally; dissenting opinion in
Fisher v. Fielding, 67 Conn. 128, 34 Atl. 724, majority holding judgment
on pecuniary demand conclusive on merits; Brigham v. Fayerweather, 140
Mass. 413, 414, 6 N. E. 266, 267, holding decree admitting will to probate
not conclusive as to testator's mental capacity; Thompson v. J^he Julius
D. Morton, 8 Ohio St. 227, holding sale ordered by Admiralty Court con-
clusive only when made to bona fide purchaser.
ffl THE MARY. ~ 9 Cr. 128-151
Limited in Bant v. Hodges, 12 Ala. 122, holding that bill in eqnity by
feme covert to have properly settled to separate use is not such proceed-
'ig in rem, and deciee is binding only on parties and privies.
Jurisdiction over auits against vessels. Note, 62 Am. Dec 243.
Judgments in rem and their eSeot as res adjndieata. Note, 75 Am.
Dec. 724.
Oo Delusiveness of judgment in rem. Note, 11 E. B. 0. 46.
Oonclusiveness of judgment of foreign country. Note, 20 L. R. A.
672.
3Votlce la neceaaary In order to make person party tff action and lilnd him
Jud.gmeat.
J ■^r»r»roved in Reynolds v. Whittemore, 99 Me. 110, 58 Atl. 416, dischai^
/y"ol.untary bankruptcy where debt not scheduled and creditor had no
n **2^ uDtil after discharge obtained does not bar debt; Tyler v. Court of
jj^istratioii, 175 Mass. 75, 55 N. E. 813, upholding Stats. 1898, chapter
jj^* Xw^viding for cutting* off adverse interest in land of unknown claim-
1„^^_ liy publication of notice; Hunt v. Searcy, 167 Mo. 182, 67 S. W. 213,
/ iZ**'E statutes of 1845 and 1879 relative to insanity inquisition are void,
^^■■^?-^:»t providing for notice; Merchants' Admr. v. Shry, U6 Va. 443, .82
,^~*- ^ 108, holding committee taking chaige of estate of convict nnder stat-
^^^ ., necessary parties defendeut to action against him for wrongful death;
^arle v. McVeigh, 91 U. S. 510, 23 L. Ed. 401, holding void judgment
founded on defective notice; Scott v. McNcal, 154 U. S. 46, 38 L. Ed. 902,
14 Sup. Ct. 1112, holding void administrator's sale of lands of living per-
son who had no notice of proceedings; so also in Lavin v. Bank, 18 Blatchf.
24, 1 Fed. 663; Parsons v. Lyman, 5 Blatchf. 179, Fed. Cas. 10,780, 32
Conn. 576, as to proceedings in Probate Court to settle trustee's account;
Mathewson v. Sprague, 1 Curt. 462, Fed. Cas. 9278, applying statute re-
quiring notice of proceedings for probate of will; Sumner v. Marcy, 3
Wood. & M. 118, Fed. Cas. 13,809, holding void sale on execution; The
Globe, 10 Fed. Cas. 481, holding void decree of sale of vessel, wliere owner
had no notice of proceedings; In re Shepard, 21 Fed. Cas. 1254, 1 Bank.
Reg. 117, holding claim of creditor not barred by decree in bankruptcy of
vhich he had no notice; Hunt's Heirs v. Ellison's Heira, 32 Ala. 187, set-
ting aside decree of foreclosure made after death of party to mortgage,
hia heirs having had no notice of proceedings; Bowler v. Eldredge, 18
Conn. 10, dissolving attachment of vessel where owner had no notice of
proceedings against her; Beard v. Beard, 21 Ind. 324, denying validity of
statute authorizing judgments for alimony, upon constructive notice,
against citiaens of other States; City of Salem v. Railroad Co., 98 Mass.
449, 96 Am. Dec. 660, denying right of city to recover for expenses incurred
in removing naisanca, notice to remove not having been served on owner;
Wight V. Maxwell, 4 Mich. 63, denying extraterritorial effect of statute
providing that attachment gives constructive notice of proceedings; dis-
senting opinion in Conklin v. Cunningham, 7 N. M. 483, 38 Pac. 181, ma-
jority holding notice of default not necessary to removal, by Governor,
of officer for shortage in accounts; McEee v. UoKee, 14 Pa. St. 237,
where decree of specific performance of contract made by decedent, held
9 Cr. 126-151 NOTES ON U. S. REPORTS. C72
invalid, notice rti proceedings not having been served on heirs; tJndcrwood
T. McVeigh, 23 Gratt. 420, and Dorr v. R«hr, 82 Va. 362, 3 Am. St. Bep.
108, dissolving attachments where notice not given as required by statute;
Ex parte Woods, 3 Ark. 635; Borden v. State, 11 Ark. 526, 54 Am. Dec
220 (see dissentii^ opinion, 11 Ark. 558) ; Dorrance v. Rajnaford, C7
Conn. 8, 52 Am. St Rep. 269, 34 Atl. 708; Fowler v. Lewis, 36 W. Va. 138,
arguendo.
Distinguished in Hamilton v. Brown, 161 U. 8. 274, 40 L. Ed. 699, 16
Sup. Ct. 592, under statute providing for notice by publication in escheat
proceedings.
Limited in Daily v. Doe, 3 Fed. 912, 913, holding that want of notice will
not avoid sale of court under decree of admiralty, but merely reopen pro-
ceedings. ,
Constitutionality of statutes authorizing judgment without notice.
Note,' 48 Am. Dec 270.
Service of process coostitutii^ due process of law. Note, 60 L. B. A.
597.
8«lzDr» gives cooBtraetiTe tfotlce to all partUe.
.Approved in Rounds v. Cloverport Foundry etc. Co., 237 U. S. 307, 59
Ii. Ed. 968, 35 Sup. Ct. 596, holding action in State court in personam
with attachment of vessel for coat of repairs was within jurisdiction of
court; Miller v. United States, 11 Wall. 325, 20 L. Ed. 151, holding that
seizure of corporate stock may be made by service of notice on officers
of corporation ; The Ann, 5 Hughes, 297, 8 Fed. 927, as to seizure of vessel
for violation of State statate ; United States v. Mackoy, 2 Dill. 308, Fed.
Cas. 15,696, holding lienors barred by failure to assert claims in proceed-
ings for forfeiture of property seized for violation of revenue laws ;
Merrick v. Hutt, 15 Ark. 343, applying principle in case of attachment of
land for nonpayment of tases; Daily v. Doe, 3 Fed. 913, 917, arguendo.
Distinguished in dissenting opinion in Miller v. United States, 11 Wall.
328, 20 L. Ed. IS2, majority holding seisure of corporate stock may bo
made by service of notice on corporate officers; The Henrietta, Newb. 291,
Fed. Cas. 6121, holding person not bound by decree of court if his claim
was not assertible in such court; Verner v. Bosworth, 28 Kan. 673, where
cattle taken up and placed in sheriff's custody under cattle act of 1881,
order to sheriff to keep cattle is not conclusive on owner.
All persona having Interest In snbject matter are partlea.
Cited in The Commander-in-Chief, 1 Wall. 52, 17 L. Ed. 612, holding de-
cree conclusive as to all parties, if, after due notice, they fail to appear;
Cushing v. Laird, 107 U. S. 79, 27 L. Ed. 395, 2 Sup. Ct. 204, holding that
person conducting defense on behalf rf)f parties intei;ested is not estopped
to set up, subeequently, his own equity in the property (see s. c. in lower
court, 6 Ben. 461, Fed. Cas. 3509); Nations v. Johnson, 24 How. 206. 16
L. Ed. 632; Ray v. Noseworthy, 23 Wall. 136, 23 L. Ed. 118, 12 Bank. Reg.
150, The Ann, 5 Hughes, 297, 8 Fed. 927, Bradstreet v. Insurance Co., 3
Sumn. 609, Fed. Cas. 1793, Poole v. Nixon, 19 Fed. Cas. 1000, arguendo.
Rights of lienholders as to captured property. Note, 5 B. B. 0. 1002.
d73 LEWIS V. McFARLAND. 9 Cr. 151-153
Holder ofbottoxnry bond cannot claim in court of prise.
Cited in the Mary Anne. 1 Ware, 106, Fed. Cas. 9195, arguendo.
Enemy goods shipped before commencement of hostilities as subject
of maritime prize. Note, Ann. Gas. 1916B, 737.
Miscellaneons. Cited in La Manche v. Spragne, 214, 216, Fed. Cas.
8004, as to what constitutes probable cause for seizure; The Parkhill, 18
Fed. Cas. 1192, and United States v. The F. W. Johnson, 25 Fed. Cas.
1236, but application donbtful. Erroneously cited in Boston etc. Co. v.
Fiske, 2 Mason, 132, Fed. Cas. 1681^ and Amory v. McGregor, 15 Johns.
37, 8 Am. Dec. 209.
9 Cr. 151-153, 3 L. Ed. 687, LEWIS T. McFABLAND.
Bxecator may maintain suit in foreign Jurisdiction for lands derlsed to
lilm by testator.
Approved in Glascock v. Gray, 148 N. C. 348, 62 S. E. 434, following
rule ; Higgins v. Eaton, 183 Fed. 390, 105 C. C. A. 608, upholding jurisdic-
tion over suit by legatee, citizen of another State, against executor to en*
force rights under will; Moore v. Petty, 135 Fed. 673, 68 C. C. A. 306,
executor may sue in another State to recoter from agent proceeds of' sale
of decedent's realty; Slack v. Walcott, 3 Mason, 518, Fed. Cas. 12,93i2,
holding that in order to bring bill for specific performance to convey land,
ijxecvLioT need not prove will in jurisdiction where such action commenced;
De Forest v. Thompson, 40 Fed. 377 (see s. c, 32 W. Va. 3, App.), sus-
taining right of .executor to defend in action of ejectment; Wilson v.
Tootle, 55 Fed. 217, applying principle to action by executor, as trustee,
for wrongful death of testator; Apperson v. Bolton, 29 Ark. 435, 437, sus-
taining validity of sale in foreign jurisdiction by executor; Way v.
Slaughter, 3 A. K. Marsh. 510, and May v. Hill, 5 Litt. (Ky.) 312, enter-
taining ejectment by foreign executor; Taylor v. Benham, 5 How. 273,
12 L. Ed. 149, arguendo.
Limited in Leavens v. Butler, 8 Port. 402, and Perkins v. Lewis, 41 Ala.
662, 663, 94 Am. Dec. 626, 627, holding that executor must sue as devisee :
Crusoe v. Butler, 36 Miss. 171, 172, holding that will must be produocd
to show authority as executor; Cabanne v. Skinker, 56 Mo. 367, and
Emmons v. Gordon, 140 Mo. 499, 62 Am. St. Rep. 740, 41 S. W. 1001,
holding that will must be proved in snch foreign jurisdiction.
Distinguished in Courtney v. Pradt, 160 Fed. 566, 87 C. C. A. 463, hold-
ing executor or administrator could not be sued in repfesentative capacity
in any State other than that in which he was appointed.
Conclusiveness in domestic conrts of foreign will duly probated
abroad. Note, 9 Ann. Gas. 423.
Foreign judgments against an executor or administrator. Note, 27
L. E. A. 102.
Right of personal representative to bring ejectment for lands of
deceased. Note, 15 Ann. Cas. -569.
I— 4a
9 Cr. 153-164 NOTES ON U. S. REPORTS. «74
Astborlty to roe fot panotu^ ostate oi teaUt«r doM not axtand ontatda
of Jniladiction of State vlten letters tMtamentur gntated.
Approved in Matter of Estate of Crawford, 68 Ohio St. 83, 96 Am. St.
Bflp. 648, 67 N. E. 159, holding foreign administrator cannot administer
tmst property outside of hta own State; Melius v. Thompson, 1 CHS. 134,
Fed.' Cas. 9405, holding that executor cannot be sned withont jurisdiction
of appointment, for assets received within such jurisdiction; dissenting
«pinion in State t. Joyce, 48 Ind. 318, majority holding admissible in evi-
dence will of personal property probated in other State; Le Cesne v.
Cottin, 2 Mart. (La.) (N. S.) 486, denying right of foreigner to admission
as beneficiary heir; Pciletreau v. Rathbone, 1 N, J. Eq. 333, on point
that probate of will in one State is of no effect in courts of another;
Vaughn V. Barret, 5 Vt. 336, 26 Am. Dec. 307, decjing authority of ad-
ministrator appointed in one State, to discharge debt due testator from
citizen of another Stat»; Kerr v. Moon, 9 Wheat. 571, 6 L. Ed. 163;
Trecothick v. Austin, 4 Mason, 32, Fed. Cas. 14,164; Clark v. Homthal,
47 Miss. 490, 491; dissenting opinion in Beeraft v. Lewis, 41 Mo. App.
650; Wills v. 'Cowper, 2 Ohio, 128, and Anthes v. Anthes, 21 Idaho, 310,
121 Eae. 655, all arguendo.
Plaintiff, In ejectment, ma; feeorei, althotigli Intereet aetabUslied at trial
is less than tliat claimed In declaration.
Approved in Northrop v. Colombian Lumber Co., 186 Fed- 777, 108
C. C. A. 640, following role; Grothans v. Do Lopez, 57 Tex. 673, in acfjon
by tenant in common to recover undivided interest; Callis v- Kemp. 11
Gratt. 84, where plaintifiE claimed whole tract and jury found only un-
divided interest.
Actions by a cotenant to recover possession of the property of Ute
cotenancy. Note, &0 Am. St. Rep. 846.
Recovery in ejectment of part under claim for whole. Note, 64 Am.
Sec. 416. . -
Miscellaneous. Cited also in Pulliam ▼. Pulliam, 10 Fed. 45, discussing
powers of executor as trustee under will.
.9 Cr. 103-164, 3 L. Ed. 6S8, OI.ABE T. VAN BIEMSDTE.
Verified answer of defendant can be overcome only by teBtlmony of two
wltneasei or one wltnees and corxobontlng clrcnmatancea.
Approved in Kiricpatrick v. McBride, 202 Fed. 149, 120 C. C. A. 322,
holding: evidence of sworn answer overcome by circumstances alonb; Snow
V. Haslewood, 157 Fed. 905, 907, 86 C. C. A. 226, holding sworn answers
to interrogatories in hill within personal knowledge of defendants may
be overcome by circumstances shown, though not contradicted by any
witness; Savings etc. Loan Soc. v. Davidson, 97 Fed. 706, holding role
of principal case does not apply when person verifying answer does not
have personal knowledge of facts; Voorhees v. Bonesteel, 16 Wall. 30,
21 L. Ed. 271, denying afOrmative relief on ground of fraud in. assignment.
675 CLAKK v. VAN RIEMSDYK. , 9 Cr. 153-lM
wbere answer controverted hy but one witness; Oodden v. Kimmell, 99
U. S. 206, 25 L. Ed. 433, where suspicion of fraud alone, held insnflicieut
to set aside deed; Bowden v. Johnson, 107 U. S. 262, 27 L. Ed. 390, 2 Sup.
Ct. 255, holdin)! anxwer overcome by testimony of one witness and ad-
Diitted fact that defendant knew bank to be insolvent and transferred
stock to escape liability; Delano v. Winsor, 1 Cliff. 505, Fed. Cas. 3754,
dismissing proceedings against trustee for breach of trust; Tobey v.
Leonards, 2 Cliff. 51, Fed. Caa. 14,067, holding testimony of one witness
insufficient to sustain bill for specific performance; Parker v. Phettle-
place, 2 Clift. 79, Fed. Cas. 10,746, denying sufficiency of one witness in
action to set aside mortgage on ground of fraud; Badger v. Badger, 2
Cliff. 146, Fed. Cas. 718, dismissing bill charging fraud^ in settling probate
accounts; Scammon v. Cole, 3 Cliff. 479, 6 Bank. Reg. 264, Fed. Cas.
12,432, where answer denying fraud in executing mortgage under bank-
rupt act, held not overcome by testimony of one witness; Hayward v.
Bank, 4 Cliff. 296, Fed. Cas. 6273, where allegations of fraud in bill sup-
ported only by testimony of complainant; Gilman v. Libbey, 4 Cliff. 459,
Fed. Cas. 5445, dismissing bill to set aside sale on ground of fraud; West
T. Randall, 2 Mason, 205, Fed. Cas. 17,424, dismissing bill for account
where only witnesses were complainant and one identilied with him in
interest; United States v. Parrott, 1 McAll. 302, 311, Fed. Caa. 15,998,
applying rule in bill for injunction (see also same case, 1 McAll. 449,
Fed. Cas, 15,999); Sadler v, Robinson, 2 Stew. 524, holding acquiescence
in transfer of land to be circumstance which will, in addition to testi-
mony of one witness, control answer denying assent to conveyance; Fenno
T. Sayre, 3 Ala. 478, to point that answer directly responsive to bill is
evidence in all cases; Cummins v.. Harrcll, 6 Ark. 315, applying rule in
proceeding to annul bond on ground of fraud; Field v. Howell, 6 Ga. 431,
where, in action to enjoin trespass, answer showed lease in defendant;
Rnekersville Bank v. Hemphill, 7 Ga. 412, dismissing bill where cause
submitted on bill and answer alone; Do^ge v. Griswold, 12 K. H. 577,
refusing to set aside conveyance for fraud where only one witness for
complainant; Bellows v. Stone, 18 N. H. 479, dismissing bill for account
where answer uncontroverted except by circumstances; Brown v, Bulkely,
14 N. J. Eq. 300, holding that complainant cannot impair effect of answer
by impeaching defendant's reputation for veracity; BenC v. Smith, 22
N. J. Eq, 566, applying rule in proceeding to establish trust; Gibbs v.
Gnignard, 1 S. C. 377, applying rule to answer of trustee to bill for ac-
eonnt; Bomley v. Cook, 13 Tex. 590, 66 Am. Dec. 82, dismissing bill for
injunction; Taylor v. Moore, 2 Rand. 577, dismissing bill to set asido
deed on ground of fraud; Moore v. UUman, 80 Va. 310, sustaining bill to
set aside deed where fraud proved by one witness and corroborating cir-
cDinstaaces ; Carpenter v. Insurance Co., 4 How. 218, 11 L. Ed. 946; Tobey
T. Leonards, 2 Wall. 430, 17 L. Ed. 845, May v. Lo Claire, 11 Wall. 233,
^ L. Bd. 54, United States v. Hodson, 26 Fed. Cas. 339, White v.- Crew,
K Ga. 423, Long v. Wliite, 5 J. J. Marsh. 228, Warren v. Swett, 31 N. H,
339, Morris v. White, 36 N. J. Eq. 329, Maise v. Gamer, 1 Mart. & Y.
9 Cr. 153-164
NOTES ON U. S. REPORTS.
676
385, 17 Am, Dec. 819, Autrey v. Cameron, 11 Tex. 114, Frank v. Lillin-
field, 33 Gratt. 381, arguendo.
Disting^shed in Barraque v. Siter, 9 Ark. 547, 550, and Robinson v.
Stewart, 10 N. Y. 195, holding that rule does not apply where answer
contains admissions inconsistent with previous positive denial.
Where miverlfled answer is upon information and belief rule that two wit-
nesses, or one witness and corroborating circumstances^ are necessary to over-
come it, does not apply. ^
Approved in Hanchett v. Blair, 100 Fed. 821, holding proof that resi-
dence for seventy years, in which party maintains business, is sufficient
proof of citizenship, as against denial, made for want of information:
Mason v. Jones, 7 D. C. 256, holding denial of fraud committed by agent
when made on information of agent and belief of principal is insufficient;
State V. Wilson, 74 W. Va. 784, 83 S. E. 49, holding circumstances did
not overcome testimony of witness; Union Bank v. Geary, 5 Pet. Ill, 8
L. Ed. 65, Buckingham v. McLean, 13 How. 171, 14 L. Ed. 99, Hickox v.
Elliott, 11 Sawy.. 641, 27 Fed. 841, Poor v. Carlton, 3 Sumn. 78, Fed. Cas.
11,272, Berry v. Sawyer, 19 Fed. 290, Mason v. Jones, 16 Fed. Cas. 1041,
Dugan V. Gittings, 3 Gill, 158, 43 Am. Dec. 314, Neale v. Hagthorp, 3
Bland Ch. 568, Shackelford v. Brown,. 72 Miss. 387, 17 South. 898, Gamble
V. Johnson, 9 Mo. 628, all following rule; Commonwealth v. Cullen, 13 Pa.
St. 143, 53 Am. Dec. 458, arguendo.
Answer of one defendant is not evidence against codef endant.
Cited in Lenox v. Natrebe, Hempst. 257, Fed. Cas. 8246c, holding that
infants cannot be prejudiced by misstatements of guardian in answer to
bill for cancellation of mortgage; Collier v. Chapman, 2 Stew. 166, 167,
holding inadmissible against codefendant answer gf another defendant
tending to invalidate title made by latter; Moore v. Hubbard, 4 Ala. 192,
as to answer in action against partnership for settlement of accounts;
Robinson v. Sampson, 23 Me. 399, in proceeding to set aside mortgage on
ground bf fraud; Martin v. Martin, 13 Mo. 64, holding rights of heirs
not prejudiced by faulty answer of administrator; Van Derveer v. Hol-
comb, 17 N. J. Eq. 553, holding in action to foreclose mortgage, answer
of owner could not prejudice his codefendant, the second mortgagee ; Judd
V. Seaver, 8 Paige Ch. 553, as to admission by joint maker' of note, in
proceedings for relief on ground of usury; McElroy v. Ludlimi, 32 N. J. Eq.
831, arguendo.
Distinguished in Barraque v. Siter, 9 Ark. 547, 550, and Lingan v. Hen-
derson, 1 Bland Ch. 267, where defendants interested jointly as partners;
Christie v. Bishop, 1 Barb. Ch. 116, holding heirs bound by admissions of
testator implied from failure to answer; Pettit v. Jennings, 2 Rob. (Va.)
681, denying application of rule where one defendant claimed title through
other.
Admission by partner after dissolution of partnership as binding co-
partner. Note, 15 Ann. Oas. 938.
e77
CLARK V. VAN RIEMSDYK
9 Cr. 163-164
\\\(
• X>i8cbarg6 In bankniptqr will not protect debtor agalnjrt debt contracted
foreign jurisdiction.
/©^*ed in Davidson v. Smith, 1 Biss. 349, Fed. Cas. 3608, denying extra-
^orial effect of State insolvency laws. /
^^^\)8equent ratification of unantliorlzed act is eqniyalent to original
^^ ^^ in Mason v. Crosby, 1 Wood. & M. 358, Fed. Cas. 9234, holding
,^^here agent guilty of fraud in sale of land, owners, by accepting
'^Viase price, became parties to such fraud; Jones v. Atkinson, 68 Ala.
Y70, as to unauthorized sale of personal property, holding, further, sub-
sequent ratification irrevocable; Byrne v. Doughty, 13 Ga. 53, holdifng
that conduct of principal should be construed liberally in favor of agent;
Mathews v. Gilliss, 1 Iowa, 254, applying principle where attorney in fact
exceeded authority in selling land and principal demanded specific x>er-
formance of contract; Davidson v. Davenport etc. Co., 24 Iowa, 424, where
alleged principal received consideration, although contract made by agent
in his own behalf; Lingan v. Henderson, 1 Bland Ch. 278, as to power of
partner* to bind copartners by contract for partnership purposes; Merri-
field V. Parritt, 11 Cush. 697, holding principal estopped from denying
authority of agent Where he acquiesced in acts done under it; Grant v.
Beard, 50 N. H. 133, holding that such ratification relates back to original
transaction, and suit against party ratifying is not based upon act of
ratification; Marshall v. Hann, 17 N. J. L. 431, ruling similarly where
alleged principal failed to dissent within reasonable time after act done;
Pentz V. Stanton, 10 Wend. 276, as to unauthorized act in drawing bill of
exchange; followed in Moss v. Averell, 10 N. Y. 454, holding that where
officer of corporation contracts on behalf of corporation, he is estopped,
in suit brought against him as stockholder, to deny authority of corpora-
tion to so contract; Newton v. Bronson, 13 N. Y. 594, 67 Am. Dep. 93,
as to ratification by executor of unauthorized sale of lands; McMahan v.
McMahan, 13 Pa. St. 381, 53 Am. Dec. 484, as to subsequent ratification
by coparcener of parol partition ; Colwell v. Bank, 16 R. I. 290, 15 Atl. 81,
as to power of partner to bind copartners in contract for partnership pur-
poses; Devendorf v. Oil Co., 17 W. Va. 170, Haskell v. Cornish, 13 Cal.
48, kenyon v. Williams, 19 Ind. 46 arguendo; Citizens' Bk. v. Millet, 44
S. W. 372, to point that agent subscribing contract, as such, is still
bound if the wording imports a personal undertaking.
Distinguished in Delafield v. Illinois, 26 Wend. 226, holding that doctrine
of estoppel cannot operate, as against State, on unauthorized contract of
agent.
Limited in Dodge v. Hopkins, 14 Wis. 639, holding that where person
seeking advantage of ratification is one who ratified contract, consent
of other party to such ratification must have been obtained.
Supremacy of State or nation over devolution of property. Note, 17
L. R. A. 84.
if
ii
9 Cr. 164-179
NOTES ON U. S. REPORTS.
678
Miscellaneous. Cited in Citizens' Bank of Dyersborg v. Millet, 103 Ky.
24, 44 S. W. 372, holding where draft drawn by agent in his own name on
principal indebtedness of principal to payee is good consideration to bind
agent ; Ballard v. Chewning, 49 W. Va. 617, 39 S. E. 173, as to facts from
which fraud may be presumed.
9 Cr. 164-172, 3 !•. Ed. 691, FINLET V. WILLIAMa
As between pre-emption rights, prior impravement win hold land atf
against prior certificate, entry, rarvey and patent
Cited in Johnson v. Towsley, 13 Wall. 86, 20 L. Ed. 487, setting aside
patent issued to third party after origihal improvement by pre-emptioner
(see also s. c. reported in 2 Neb. 490, App.) ; McAfee v. Keim, 7 Smedes
& M. 789, 45 Am. Dec. 333, sustaining pre-emption right under which all
requirements have been complied with, as against older patent under which
entry only has been made.
Where mommienta are relied up<A to control coursea and distanceev tliey
most be found as call)Ml for.
Approved in Duncan v. Ea^le Rock Gold Mining etc. Co., 48 Colo. 583,
139 Am. St. Eep. 288, 111 Pac. 593, holding doubtful monuments did not
prevail ; Pollard v. Shively, 5 Colo. 316, holding that where variation exists
between monuments, and courses and distances in patent, patentee must
keep up monuments sufficiently to give notice; so also in Patin v. Blaize,
19 La. 400, 401; Alshire v. Hulse, Wright, 171, 5 Ohio, 534, holding void
for uncertainty a call for "a beach tree" in forest of such trees ; McNeel v.
Herold, Ih Gratt. 314, holding that where monuments called for possess
but' local notoriety, they must be proved by party asserting validity of
entry.
9 Cr. 173-179, 3 Ii. Ed. 694, McIVEB'S I^ESSEE y. WAI££E.
if nothing exists to control calls for courses and distances, land bounded
by courses and distances of patent, according to magnetic meridian.
Cited in Wells v. Jackson etc. Co., 47 N. H. 260, 90 Am. Dec. 680, con-
struing term "due," as prefixed to designation of course; Brooks v. Tyler,
2 Vt. 350, applying rule where plaintiff in ejectment described land only
by course and distance, and without monument except at point of begin-
ning.
Whether survey is presumed to have been made by magnetic instead'
of by true meridian. Note, 90 Am. Dec. 592.
Monuments designated in patent will control courses and distances.
Approved in Watkins v. King, 118 Fed. 537, People v. San Francisco,
2 Cal. Unrep. 818, 15 Pac. 751, and Wiley v. Hatcher, 70 W. Va. 96, 73
S. E. 247, all following rule; Hatcher v. Richmond etc. Ry. Co., 109 Va.
363, 63 S. E. 1001, holding rule could apply only where conflict existed.
Distinguished in Security Land etc. Co. v. Bums, 193 U. S. 179, 48 L. Ed.
671, 24 Sup. Ct. 425, courses and distances set forth in plat of official
i: i'
e79
MoIVER'S LESSEE v. WALKER.
9 Cr. 173-179
survey and referred to in patent, which shows alleged meander line of lake
as obe boundary, control as against actual boundary of lake, where survey
fraudulent and lake never within half mile of point indicated on plat;
Blake v. Doherty, 6 Wheat. 372, 5 L. Ed. 112, holding that such monuments
may be proven by testimony not found in grant; Cleaveland v. Smith, 2
Story, 291, Fed. Cas. 2874, where, in grant to town, natural object held to
prevail over clearly defined course, although lines thus formed* were widely
divergent; Guilmartin v. Wood, 76 Ala. 210, applying rule where land
described as certain ''lot," and holding parol evidence admissible to show
location; Wise v. Burton, 73 Cal. 171, 14 Pac. 681, holding, further, that
surveyors' field-notes are admissible to show location of monument; Higley
V. Bidwell, 9 Conn. 452, under facts similar to those in principal case;
Alshire v. Hulse, 5 Ohio, 535, holding that proof that posts were set up
at comers of land conveyed controls calls for distance; Urquehardt v.
Burleson, 6 Tex. 511, correcting survey calling for wrong course; Racine v.
J. Case etc. Co., 56 Wis. 542, 14 N. W. 600, applying principle in deter-
mining location of city streets; Croghan v. Nelson, 3 How. 193, 11 L. Ed.
557; Clements v, Pearce, 63 Ala. 292; dissenting opinion in People v. San
Francisco, 75 Cal. 406, 17 Pac. 530; Daggett v. Wiley, 6 Fla. 506; Riley
V. Griffin, 16 Ga. 147, 60 Am. Dec. 729, arguendo.
Distinguished in Claremont v. Carlton, 2 N. H. 372, holding parol evi-
dence inadmissible to establish location of monument otherwise inde-
terminable; so also in Bowman v. Farmer, 8 N. H. 403.
Limited in McNeel v. Herold, 11 Gratt. 315, holding that where calls are
repugnant court will adopt those appearing to be consistent.
General rules for the location of boundaries. Note, 129 Am. St. Rep.
1013.
If patent refer to plat annexed, resort may be had to it to correct repug-
nancies in description In patent.
Approved in Kirwan v. Murphy, 109 Fed. 355, holding government can-
not correct surveys and revoke grants made in accordance with government
plats and surveys; Cleveland v. Bigelow, 98 Fed. 249, 250, holding where
city plat and minutes of original survey are contradictory plat controls;
State V. Georgia Ry. & Power Co., 141 Ga. 158, 80 S. E. 660, holding plat
annexed controlled description ; Murphy v. Tanner, 176 Fed. 543, 100 C. C. A.
125, as instance of power to correct defective survey. Cited in Brown v.
Clements, 3 How. 672, 11 L. Ed. 778, where patent described land as
"southwest quarter of fractional section 22"; United States v. Texas, 162
U. S. 37, 40 L. Ed. 879, 16 Sup. Ct. 733, referring to map annexed to
treaty of 1819 with Spain, to determine boundary line of Texas; Knowles
v. Nichols, 2 Curt. 574, Fed. Cas. 7897, where rule applied in determining
extent of right conveyed by grant from State, * of common for purposes
of taking seaweed; Chadwick v. Carson, 78 Ala. 120, allowing reference to
former deed to determine bounds of land convej^ed by mortgage; Ferris v.
Coover, 10 Cal. 626, where map referred to in Mexican grant held to be
part of grant, and to control uncertainties in description; Burk v. Balti-
more, 77 Md. 472, 26 Atl. 869, holding that where ordinance providing for
'V
^ ':li;l
I
-ff
1/ • 'v
•«t.
' 1
9 Cr. 180-190
NOTES ON U. S. REPORTS.
6S0
opening street refers to plat, such plat corrects inaccuracies in ordinance
defining line of street ; Coles v. Yorks, 36 Minn. 391, 31 N. W. 365, holding
that where land described as being ceii^ain block, reference may be had to
city maps to determine location; Wolfe v. Scarborough, 2 Ohio St. 368,
referring to map where deed described land by numbers of lots ; Waterman
V. Andrews, 14 R. I. 598, holding that reference in one deed to another
"for more particular description" incorporates such description in former;
Langdon v. New York, 93 N. Y. 147, arguendo.
Distinguished in Martin v. King, 3 How. (Miss.) 146, holding map
made under authority of United States land office inadmissible to vary
prior Spanish grant.
Mortgages — Description of property (not including the question of
boundaries). Note, 137 Am. St. Bep. 267.
Miscellaneous. Cited in Craigin v. Powell, 128 U. S. 699, 32 L. Ed. 569,
9 Sup. Ct. 206, on point that survey made under direction of land office
cannot be impeached collaterally; Tift v. Grifi&n, 5 Ga. 194, but not in
point.
9 Cr. 180, 3 L. Ed. 697, OWENS v. HANNET.
Judgment will not be reversed because it appears on record that plaintiff
is alien enemy, and defendant had no opportunity to plead such fact.
Cited approvingly in Kershaw v. Kelsey, 100 Mass. 564, 97 Am. Dae.
128, discussing general subject.
Alien enemies as litigants. Note, 5 B. B. 0. 590.
9 Or. 181-183, 3 K Ed. 698, UNITED STATES v. THE >ANNT.^
Vessel from Great Britain had right to lay off coast of United States for
InBtructioii tram owners in New York, and to anchor in harbor in case pf
storm.
Cited in The Sarah Starr, Blatchf. Pr. 85, Fed. Cas. 12,352, arguendo.
9 Or. 183-190, 3 L. Ed. 398, THE FRANCES.
Where foreign vendor stipulate that goods not to be delivered until price
paid, property remains in vendor, and is liable to capture as enemy's property.
Approved in State v. Kelly & Co., 123 Tenn. 563, 133 S. W. 1012, hold-
ing where goods are ordered by mai^, title passes to buyer on delivery to
carrier; Blum v. The Caddo, 1 Woods, 65, Fed. Cas. 1573, holding con-
signor to be merely agent of consignee for purposes of delivery to carrier,
and denying former's right to sue carrier for loss of goods; Treadwell v.
Anglo-American Packing Co., 13 Fed. 24, holding that where shipment is
made under condition of payment before delivery, vendor is liable for
any loss prior to such payment; Southern Express Co. v. Craft, 49 Miss.
496, 19 Am. Bep. 9, 10, sustaining right of consignor to sue carrier for
loss of goods after former had indemnified consignee for such loss;
Woolsey v. Bailey, 27 N. H. 219, holding that where shipper has generid
681 THIKTY HHDS. OF SUQAB v. BOYLE. 9 Cr. 191-199 V
discretionaiy ordcra to ship goods, ahipment is at his own risk, ntilesB
such shipment clearlj' designated to correspondent; Farmers' etc. Bank t.
Logan, 74 N. Y. 577, holding that where factor purchases goods for prin-
cipal, but with his own credit, property remains in him, and he may de-
mand payment before delivery to principaL
Effect of terms o£ bill of lading on ownership of goods. Note, 34
Ajn. Rep. 622.
FasBing to title by delivery to carrier for transportation to consignee
or vendee. Note, 22 L. S. A. 424.
9 Cr. 191-199, 3 L. Ed. 701, THIKTY trrmtt OF SUOAB -r. BOYI£.
ToTitory In temporary occnpatton of enemy 1> to be considered u enemy's
colony.
Approved inr Downes v. Bidwell, 182 U. H. 303, 46 L. Ed. 1113, 21
, Sup. Ct. 793, holding Porto Rico not part of United States within taxing
elaose of Constitution ; Dooley v. United States, 182 U. S. 231, 45 L. Ed.
1081, 21 Sup. Ct. 766, holding after treaty of Paris, right to exact duties
on importations from America to Porto Rico ceased; United States v.
Hackabee, 16 Wall. 434, 21 L. Ed. 464, holding that land captured from
Confederate States belonged to United States and was subject to sale on
extinction of Confederacy; United States v. Reiter, 27 Fed. Cas. 779, sus-
taining power of President to establish provincial courts in coiiquered
territory during Rebellion; Jeffries v. State, 39 Ala. 659, sustaining power
of provisional Governor of State to Suspend slave laws; Rutlege v. Fc^,
3 Cold. 560, 91 Am. Dec. 302, holding that Constitution and laws of con-
qnerii^ belligerent determine power and form of government established
over captnred territory.
Distinguished in disscntii^ opinion in The Circassian, 2 Wall, 158, 17
L EA. 802, majority holding capture o{ forts commanding approach to
New Orleans did not terminate blockade of that port.
Belligerent rights. Note, 91 Am. Dec. 280.
Produce of soil of territory conquered and occupied hy enemy IB liable to
c(mduiiiu.tlMi, so long as owned by indlTldnal proprietor of soil, althongli be
b« neDteaL
Approved in New Orleans v. Steamship Co., 20 Wall. 397, 22 L. Ed. 359,
to rents of wharves and levees in conquered territory; The Sarah Starr,
Blatchf. Pr. 75, 76, Fed. Cas. 12,362, holding that inhabitant can neither
leqaire nor transfer title to property adversely to interests of belligerent
eaptor; dissentii^ opinion in Uiller v. Gould, 38 Ga. 477, majority holding
Tdlid transfer of property between residents of conquered territory during
occupation by enemy; United States v. Cement, 27 Fed. Caa. 294, and
Tait V. New York etc. Ins. Co., 1 Flipp. 330, Fed. Caa. 13,726, ai^endo.
Distinguished in Kershaw v. Kelsey, 100 Uaaa. 566, 97 Am. Bep. 129,
holdii^ valid transfer of lands between inhabitants of conquered territory.
Duty of conquering with respect to obligations of conquered State.
Note, 5 B. B. 0. 907, 908.
9 Cr. 199-243 NOTES ON U. S. REPORTS. 682
Uarltlme law of Enxland bss b«eii mttapted by TTnltsd Stataa u f«r U
adapted to conditions of conntry.
Cited in The Siren, 13 Wall. 393, 20 L. Ed. 606, holding th&t right to
prize money can be created only by act of sovereign power, and that no
such right exists in case of joint capture by array and navy; The Parkhilt,
18 Fed. Caa. 1192, followii^ rule.
Miscellaneous. Cited in Our House v. State, 4 G. Greene, 175, to point
that proceedings in rem against property used for unlawful purposes may
be sanctioned by law.
9 Or. 199-201, 3 L. Ed. 704, EVANS ▼. JOBDAN.
Act extending patent doei not authorize general use, after passage of such
act, of machines erected between esiHratlon and grant of ezteiiElon.
Cited in Bloomer v. McQuewan, 14 How. 960, 562, 14 L. Ed. 641, 642,
holding that assignee under original patent bas right to continue use
during period of extension; Day v. Union etc. Co., 3 Blatchf. 495, Fed.
Gas. 3691, sustaining right of assignee under original patent, as gainst
assignee for extended term; Qraham v, Johnston, 21 Fed. 43, following
rule; Rein v. Clayton, 37 Fed. 355, holding that person purchasing pat-
ented article before patent issued cannot continue use after such issue;
Blanchard v. Kaynes, 3 Fed. Gas. 628, granting injunction to restrain use
of machine after extension of patent right; Washburn v. Gould, 3 Story,
135, Fed. Cas. 17,214, arguendo.
Distinguished in Underbill v. Van Cortlandt, 2 Johns. Ch. 359, where
machines erected while patent in force, and amount presumed to have
been paid for privilege included in valuation of "mills and appuri:enances"
under covenant in lease.
B Or. 206-209, 3 L Ed. 706, THE HAZABD t. CASSFBELL.
Kentral co7ec of euamys propntj' Time for fUrthet proof refused nndei
facts.
Cited in The Adula, 89 Fed. 355, as instance where time for further
proof was refused..
9 Or. 212-243, 3 Ii. Ed. 708, UNITED STATES v. GILES.
Debtor of United States cannot setofl claim for debt due him by United
States, until claim rejected by tieasnry deputment.
Approved in Smytbe v. United States, 188 U. S. 173, 47 L. Ed. 431, 23
Snp. Ct. 284, applying ml< of principal case in action on official bond,
where defense was that part of notes alleged to have been withheld had
been returned ; Ware v. United States, 4 Wall. 629, 18 L Ed. 392, where,
in action againBt postmaster to recover moneys due United States, defend-
ant claimed damages for wrongful discontinuance of office; United States
V. Eckford, 6 Wall. 489, 18 L. Ed. 922, holding, however, that where such
claim is properly presented and allowed, couri^ has no jurisdiction to render
judgment against United States for excess over latter's' demand against
^ UNITED STATES v. GILES. 9 Cr. 212-243
^^^«ndant; Watkins v. United States, 9 WaU. 764, 19 L. Ed. 822, holding
^^ such claim must be presented by items; Hall v. United States, 91
• ' ^* 562, 28 L. Ed. 447, as to claim of revenue officer for extra services,
Y ^tion by Upited States for balance due on settlement of accounts;
. ^tes V. United' States, 90 Fed. 59, holding that books of department can
92 w^ ^^^y evidence of disallowance of claim ; United States v. Peterson,
p^ ^^. 855, holding setoff claimed for clerk's errors must likewise be
«^^^.®^ted to the treasury department; Mason v. Cooper, 19 Ga. 545, con-
St/^^S State statute to like effect; Moore v. Tate, 87 Tenn. 740, 10 ^m.
rt^^OA^*^* '^2^» ^^ S' ^' ^^^f construing strictly State statute regulating
« \. ^^^ actions brought by State ; United States v, Hawkins, 10 Pet. 132,
>.T^ K4. 872, Railroad Co. v. United States, 101 U. S. 549, 25 L. Ed. 1069;
vWA^iUson V. Bank, 18 Ga. 98, arguendo.
Explained in Borden v. Houston, 2 Tex. 610, 612, denying right to setoff
as against State, in absence of statute.
Distinguished in Powers v. Bank, 18 Ga. 659, holding that where attorney
has collected money due State, he may retain sufficient to satisfy claim
due him from State for professional services.
Setoff, counterclaim or recoupment in action by State. Note, 88
L. B. A. (N. S.) 380.
Controller of treasury may direct payment by maxshal of money received
on execution.
Distinguished in Walker v. Chapman, 22 Ala. 128, denying right of con-
troller to receive money levied upon, before institution of proceedings
against debtor.
Sureties are not liable for money rec«ived before execution of' official bond.
Cited in Myers v. United States, 1 McLean, 497, Fed. Cas. 9996, holding
burden to be on plaintiff to show that money was in hands of principal
at date of execution; so also in United States v. Linn, 2 McLean, 506,
Fed. Cas. 15,606; Boody v. United States, 1 Wood. & M. 169, Fed. Cas.
636, holding that where successive bonds were executed, default occurring
prior to execution of second, rendered sureties on first liable, and such
sureties are to be indemnified by, first payment by principal; Thompson v.
Dickerson, 22 Iowa, 363, where money was received during existence of
prior bond ; People v. Parker, 53 Me. 257, holding sureties exempt from
liability for prior neglect in performance of public duties; Thompson v.
MacGregor, 81 N. Y. 597, as to liability of sureties on receiver's bond;
Lyttle V. Cozad, 21 W. Va. 206, under similar facts; Hernandez v. Mont-
gomery, 2 Mart. (La.) (N. S.) 429, ai^endo.
Distinguished in United States v. Bicket, 24 Fed. Cas. 1143, and State
V. Newton, 33 Ark. 281, where default occurred after execution of bond;
Robey V. Turner, 8 Gill & J. 130, under facts; State v. Sooy, 39 N..J. K
547, 549, holding sureties liable for money used in payment of arrears due
at tune of execution ; Clark v. Wilkinson, 59 Wis. 550, 18 N. W. 484, hold-
ing sureties liable for money on hand at time bond executed.
Liability of sureties on successive bonds. Note, 10 Am. St. Rep. 844.
Definiteness of question to be certified. Note, 81 L. B. A. 392.
fi
9 Cr. 243-289 NOTES ON U. S. REPORTS. 684
Miscellaneous. Cited in Bollin v. Blythe, 46 Fed. 181, on point that
terms of bond are to be eonstmed in favor of sureties; Aldridge v. Warner,
2 Port. 99, but application doubtful; Alton v. Oiltnarton, 2 N. H. 521, but
not in point. ^ '
g Oi. 243-244, 3 Ik Ed. 710, UNITED STATES V. BAKBEB.
"Fat cattle'' are jiroTliions or mnnltloiu, witliln act of Oongrui, prohlblt-
Inr dtlseni of United States f r(«n trading with tauaj.
Explained in United States v. Sheldon, 2 Wheat. 122, 4 L. Ed. 200, hold-
ing that driving living cattle on foot is not a "transportation," within
meaning of act prohibiting trading.
9 Cr. 244^289, 3 I- Ed. 719, THE ADEUNE.
Vnun merlta plainly appeal, court may allow new allesatloii to be llled,
and for tlds pmpose, remand caose^to Olrcalt Oonrt.
Approved in Graham v. Or^on etc. Nav. Co., 134 Fed. 693, where ex-
ceptions to libel in admiralty for want of jurisdiction are sustained, leave
to amend may be granted; Davie v, Adams, 102 Fed, 525, allowii^ amend-
ment to pleadings to conform to proofs; Garland v. Davis, 4 How. 154,
11 L. lid. 918, allowing amendment of pleadings after writ of error; United
States V. Weed, 5 Wall. 71, 18 L. Ed. 534, remanding cause for new libel
where prosecution below was improperly on instance side of court ; Liver-
pool Steam Co. v. Insurance Co., 129 V. S. 447, 32 L. Ed. 794, 9 Sup. Ct.
474, permitting amendment of answer and introduction of proof of foreign
law; Anonymous, 1 Qall. 2S, Fed. Cas. 444, to point that leave to so amend
is discretionary with court; Reed v. Cowley, 1 Bank. Reg. 137 (516), 20
Fed. Cas. 434, applying principle to appeals in bankmptcy cases ; The
Meteor, 17 Fed. Cas. 185, allowing amendment of defective libel; Bierne
V. Triumph, 2 Ala, 742, on point that mere irregularity in service of pro-
cess, in suit to enforce lien against vessel, is not cause for diBmissal of
libel; Richmond v. New Bedford etc. Co., 2 Low. 31C, 317, Fed. Cas. 11,800,
Crawford v. The William Penn, 3 Wash. 488, Fed. Cas. 3373, The Express,
Blatchf. Pr. 146, Fed. Caa. 4476, arguendo.
Pleadlnga Involve, directly, no fnrtlier qnestlon than that of prlie. ,
Cited in The Louisa Agnes, Blatchf. Pr. 114, Fed. Cas. 8531, denying
right of claimant in prize to put in special claim without assent of United
States attorney; The Sally Magee, Blatchf. Pr. 384, Fed. Cas. 12,260, hold-
ing sufficient, allegation in libel that seized property is prize of war;
Clark V. Lumber, 66 Fed. 241, 24 U. S. App. 509, discussing general sub-
ject of pleading in prize courts.
It principal la at great distance from court, claim and affidavit may be
made by agent.
Cited in United States v. Ames, 99 U. S. 43, 25 L. Ed. 300, following rule;
In re Stover, 1 Curt. 202, Fed, Cas. 13,507, holdii^ that sceh agent is
to be treated aa party and held liable personally for fees for services ren-
685 THE BRIG ANN. • 9 Cr. 289-291
dered by clerk at his request; The Farmer y. McCraw, 26 Ala. 203, 62
Am. Dec. 720, ruling similarly in action for damages caused by collision.
Limited in Spear v. Place, 11 How. 526, 18 L. Ed. 798, holding that such
agent cannot represent principal, resident at place of trial.
In recaptures of propert]^ of friends, rule of reciprocity is to be fpUowed.
Approved in The Olinde Rodrigues, 174 U. S. 535, 43 L. Ed. 1076, 19
Sap. Ct. 862, holding that probable cause for capture existed; The Star,
3 Wheat. 92, 4 L. Ed. 342, where American vessel was captured by enemy,
and in condemnation proceedings title passed to latter, court denied original
owner's right to restitution on recapture by American privateer; United
States V. The F. W. Johnson, 25 Fed. Cas. 1232, to point that prize cases
are govemedby "law of nations"; The Carlos F. Roses, 177 U. S. 663, 44
L Ed. 932, 20 Sup. Ct. 806, arguendo.
Miscellaneous. Cited in The Parkhill, 18 Fed. Cas. 1194, distinguishing
between admiralty and common law ; United States v. Cement, 27 Fed. Cas.
297, as to burden of proof to show ship's papers genuine; Pacific Coast
S. S. Co. V. Bancroft-Whitney Co., 94 Fed. 193, arguendo.
9 Cr. 289-291, 3 L. Ed. 734, THE BBIO ANN.
Seizure is necessary to establisli jurisdiction of admiralty courts.
Cited in Dobbins v. United States, 96 U. S. 396, 24 L. Ed. 637, in pro-
ceedings in rem for forfeiture of apparatus for violation of internal
revenue laws; United States v. Raft, 5 Hughes, 409, 13 Fed. 799, where
vessel seized for violation of pilot laws; The Fideliter, 1 Abb. (U. S.) 578,
579, 1 Sawy. 155, Fed. Cas. 4755, holding further, that such seizure as
well as place of seizure must be alleged in libel; The Tug May, 6 Biss.
244, Fed. Cas. 9330, following rule ; The Washington, 4 Blatchf . 102, Fed.
Cas. 17,221, dismissing libel for want of averment of seizure; The Idaho,
12 Sawy. 163, 29 Fed. 192, in proceedings for violation of navigation laws ;
The Silver Spring, 1 Sprague, 552, Fed. Cas. 12,858, holding that in libel
for violation of revenue laws, seizure by collector must be alleged; In re
Moore, 66 Fed. 950, as to seizure for violation of internal revenue acts;
United States v. The Snowdrop, 30 Fed. 80, ai^endo.
Distinguished in United States v. George Spraul & Co., 185 Fed. 407, 408,
107 C. C. A. 569, and United States v. Two Barrels of Desiccated Eggs, 185
Fed. 305, both holding under Food and Drug Act of 1906 food subject to
forfeiture could not be seized before commencement of proceedings; The
Rio Grande, 23 Wall. 464, 23 L. Ed. 159, holding that error of court in
restoring vessel does not divest Circuit Court of jurisdiction on appeal.
Abandonment of, and restoration to owner before libel, divests coozt off
Jurisdiction.
Cited in Hall ▼. Warren, 2 McLean, 333, Fed. Cas. 5952, holding that
court will decree abandonment where captor refuses to proceed against
goods in court of competent jurisdiction.
Limited in The Young America, 30 Fed. 791, holding that sueh restora^
tion to owner must be made with intent to abandon seizure.
)
9 Cr. 292-338 NOTES ON U. S. REPORTS. 686
Distingnished in The Rio Orande, 23 Wall. 464^ 23 L. Ed. 169, holding
that error of court in decreeing restoration will not deprive Ciroait Court
of jurisdicttou on appeal ; United States v. Wines, '8 Blatchf . 482, Fed. Cas.
15,392, holding that forcihle dispossession does not worlc ahandonmeat.
g Dr. 292^338, 3 I.. Ed. 735, PA^VIiET ▼. GLABH,
Jurisdiction of nnlt«d States coorta extend to dl^ntM arising from con-
flicting sraots to same land by dlllef ent Statea.
Approved in Colson v. Lewis, 2 Wheat. 378, 4 L. £d. 266, following rule.
Distinguished in Stevenson v. Fain, 195 U. S. 169, 49 L. Ed. 144, 25 Sup.
Ct. 6, denying jurisdiction of Circuit Court over controversy tietweeii
parties not having requisite diversity of citizenship bnt claiming nttder
grants from different States.
Dedication to public or plona nsaa la valid, altbomdi ttwro be no gnuit«*
In exirtewce.
Approved in State v. Board of School Conmrs., 1S3 Ala. 576, 63 Soath.
83, holding grant of section 16 of each township for school purposes vested
title in State, since inhabitants of township were not incorporated; Morris
V. Nowlin Lumber Co., 100 Ark. 267, 140 S. W. 5, holding grant of land to
■ church vested title in bishop; Gordon County v. Mayor etc., 128 Ga. 785,
S8 S. £. 362, upholding dedication of land as town common ttiough town
was not yet incorporated; Gillean v. City of Frost, 25 Tex. Civ. 376,. 61
S. W. 348, discussing effectiveness of dedication of lake and park to public ;
Mansfield v. Neff, 43 Utah, 275, 134 Pac. 1165, holding unincorporated
charitable association could take and hold real and personal property;
Deepwater Ry. Co. v. Honaker, 66 W. Va. 144, 27 L. E. A. (N. 8.) 388.
66 S. E. 108, upholding conveyance of land to trustees for benefit of chuTch ;
Werlein v. New Orleans, 177 U. S. 401, 44 L. Ed. 822, 20 Sup. Ct. 687,
«rguendo; Beatty v. Kurtz, 2 Pet. 583, 7 L. Ed. 527, sustaining right of
church society, oi^anized subsequent to grant, to maintain equitable action
against holder of legal title; Cincinnati v. White, 6 Pet. 436, 437, 8 L. Ed.
455, as to dedication of land for use of city as public square; Irwin v,
Dixion, 9 How. 31, 13 L. Ed. 34, where grant was of land for highway for
use of public at large; Vincennes University v. Indiana, 14 How. 274, 14
li. Ed. 419, sustaining reservation from sale, by State, of land for use of
college to be subsequently incorporated; Ould v. Washington Hospital, 95
U. S. 313, 24 L. Ed. 462, holding valid, devise for charitable uses, to trustee};
to be appointed by Congress ; Baring v. Erdman, 2 Fed. Caa. 788, to point
that grants made for public benefit are to be construed liberally; Uagill v.
Brown, 16 Fed. Cas. 413, 414, holding valid devise of lands to unincorpo-
rated religions society; Harding v. Jasper, 14 Cal. 649, as to dedication of
highway; Hart v. Burnett, 15 Cal. 548, holding that such dedication may
be absolute or limited ; Kittle v. Pfeiffer, 22 Cal. 489, holding further as
to what constitutes evidence of such dedication; Chatham v. Brainerd, 11
Conn. 88, upholding grant, by town, of burying ground, to church society,
to be subsequently oi^anized ; American Bible Society v. Wetmore, 17 Conn.
188, sustaining devise to corporation designated only by description; City
€87 PAWLET V. CLARK. 9 Cr. 292-338
of ^j3alachicola v. Land Co., 9 Fla. 3i50, 79 Am. Dec. 288, as to grant to
towicL "to be subsequently incorporated; State v. Springfield Township, 6
Ind- 06, as to grant by State of school lands; Scott v. Stipe, 12 Ind. 75,
holciirig, however, that person to whom grant made as trustee has no power-
to ^^IX such land without consent of grantee ; Miller v. Chittenden, 2 Iowa,
Z^, 3T2, applying cy pres doctrine where grant was to trustees, who had
no x^o'^^cr to organize beneficiary society (see also s. c, 4 Iowa, 263, 272) ;
Connxin.issioners v. First Presbyterian Church, 30 Kan., 638, 1 Pac. 113, hold-
^"S' x^^il'ol evidence admissible to identify beneficiary; McKinney v. Griggs,
5 Sva^li, 405, 96 Am. Dec. 363, to point that public dedication may be made
by x>a.Tol ; Shapleigh v. Pilsbury, 1 Me. 281, 286, 287, holding further that
until such religious corporation comes into existence, fee remains in gran-
tor ; Sttfte V. Wilson, 42 Me. 23, as to dedication of highway to public use;
Att:o:imey General v. Merrimack etc. Co., 14 Gray, 603, 610, following rule;
Tyl«x* V. Sturdy, 108 Mass. 198, as to dedication to public of footpath;
Bax-tlctt V. Nye, 4 Met. 380, to point that executor under will devising land
to VI n incorporated society, is bound to execute such trust; Vick v. Mayor
of "VTicksburg, 1 How. (Miss.) 430, 31 Am. Dec. 171, holding further that '
dedication for public use may be proved by parol; Rutherford v. Taylor,
35 liXo. 319, as to dedication of land for public square; New Market v.
Snr\a.x-t, 45 N. H. 97, 98, following rule; Trustees v. Hoboken, 33 N. J. L.
^^y 97 Am. Dec. 699, African etc. Church v. Conover, 27 N. J. Eq. 160,
jbiio wing Beatty v. Kurtz, 2 Pet. 583, 7 L. Ed. 527, supra ; Pearsall v. Post,
VVend. 118, applying rule where land dedicated to educational institu-
J^^ to be subsequently incorporated (see s. c, 22 Wend. 446, 447, 455);
^ ^ow-ix V. Manning, 6 Ohio, 303, 27 Am. Dec. 256, as to dedication of land
^ t^tiblic square; Fulton v. Mehrenfeld, '8 Ohio St. 444, holding that
^^**^ dedication to public not by express grant, such dedication operates
.^^^'toppel in pais rather than as transfer of interest; Carter v. Portland,
. ^^^« 347, holding that dedication to public may be by parol and need not
J ^^>:r-mally accepted; Nance v. Busby, 91 Tenn. 314, 18 S. W. 877, con-
n,^-*^^*^^ statute empowering unincorporated associations to Hold lands;
^"c^^-fc^gg y Burt, 11 Vt. 639, under similar facts; Jiontpelier v. East Mont-
j_^^^»^3 27 Vt. 708, on point that lands reserved by municipal charter for
' . *^c^ purposes, vest in town as trustee and can be devoted to purposes
Aj^^^ ^or which reserved; so also in Franklin etc. School v. Bailey, 62 Vt.
U ^ -*74, 20 Atl. 822 ; Antone v. Eslava, 9 Port. 544 ; Macon v. Franklin,.\
7 ^-^^. 244, 248; Wardens v. Savannah, 82 Ga. 665, 666, 9 S. E. 540; Chris-
21^^ <:jhurch v. Scholte, 2 Iowa, 30, and Baptist Society v. Candia, 2 N. H.
^..^^^^*^en do.
^^i^tinguished in dissenting opinion in Canal Co. v. Railway Co., 4 Gill
^ ^^ « 194, majority holding irrevocable, grant of franchise to corporation
^*\ *^^ subsequently created; Price v. Methodist Episcopal Church, 4 t)hio,
^^^> \inder statute.
Validity and effect of deed or grant of present estate to grantee not
in existence. Note, 18 Ann. Cas. 874.
Validity pf gift to unincorporated charity. Note, 82 L. B. A. 626, 626.
9 Cr. 292-338 NOTES ON U. S. REPORTS. 688
Effect of specifying use of realty in devise to reli^pouB society. Note,
11 L. B. A. (H. S.) 610.
LeglsiMtve |;raiit to prlv&te coipOTatlon Is irrevocAUe. .
Approved in Dartmouth College v. Woodward, 4 Wheat. 695, 4 L. Ed. 673,
denying right of legislature to appropriate funds devised to corimration
for eleemosynary purposes; Planters' Bank v. Sharp, 6 How. 332, 12 L, Ed.
460, denying right of legislature to revoke charter powers of bank, reg'ard-
ing acquisition of personal property; State Bank v. Knoop, 16 How. 389,
14 L. Ed. 985, applying rule where hank exempted, by charter, from taxa-
tion; Savannah v. Steamboat Co., Charlt. (Ga.) 348, 349, denying right
of legislature to impair vested property rights of municipal corporation ;
Toung V. Harrison, 6 Ga. 154, holding charter of private corporation to
be contract and not subject to repeal by legislature ; Hilliard v. Connelly,
7 Ga. 180, holding unconstitutional, act of le^slature authoriziog State
officers to correct errors in grants and issue alias grants where lands in
question are in hands of person not party to original grant; Brace v.
Schuyler, 4 Gilm. 278, 46 Am. Dec. 460, denying retroactive effect of stat-
ute, where such effect would impair validity of contracts; so also in Mar-
tiudale v. Moore, 3 Blackf. 280; Gaines v. Bnfotd, 1 Dana (Ky.), 46S,
holding unconstitutional, act impairing rights of patentee, under patent;
Atchafalaya Bank v. Dawson, 13 La. 506, holding that where charter of
corporation liable to forfeiture, such forfeiture must be decreed by courts,
and not by legislature; New Orleans etc. R. R. Co, v. New Orleans, 26
La. Ann. 482, denying right of legislature to impair vested property rights
of municipality (sec also s. c, 26 La. Ann. 521) ; Tmstees v. Bradbury, 11
Me. 126, 26 Am. Dec. 520; Canal Co. v. Railroad Co., 4 Gill & J. 128, 146,
applying principle to grant of franchise to corporation to be created (see,
however, dissenting opinion, p. 194, disting^uishing principal case) ; Michigan
State Bank v. Hastings, 1 Doug. (Mich.) 234, 41 Am. Dec. 651, denying
right to repeal charter of bank, without judicial hearing to determine
liability to. forfeiture; People v. Hurlbut, 24 Mich. 104, 9 Am. Bep. 112,
applying principle to grant of land to public corporation ; so also in
Detroit v. Detroit etc. Co., 43 Mich. 148, 5 N. W. 280; Clark v. Mitchell,
64 Mo. 582, holding that legislatures are bound by provision in Federal
Constitution, prohibiting deprivation of property without due process of
law; Spaulding v. Andover, 54 N. H. 55, applying rule to grant of bonds
to municipal corporation; Commonwealth v. Pennsylvania Canal Co., 66
Pa. St. 48, 5 Am. Rep. 339, holding void, act of legislature requiring canal
company to construct sluice-boxes not provided 'for in chaj-ter; In re
Malooe's Estate, 21 S. C. 449, holding irrevocable, grant to municipal cor-
poration of funds for support of orphan asylum; Towu of Milwaukee v.
City pf Milwaukee, 12 Wis. 102, holding that, although legislature may
change corporate limits of town, it cannot at same time transfer land
bclon^ng to town, as such, to adjoining city whose boundaries are made
to include part of former, arguendo.
Dissenting opinion in State v. Cantwell, 142 N. C. 616, 9~Aiul Oas. 141,
8 L. B. A. (N. S.) 498, 66 S. E. 824, majority holding statute exempting
689 OTIS V. WATKINS. 9 Cr. 339-358
members of fire compi^ny from jury duty was not contract; Yarmouth v.
North Yarmouth, 34 Me. 418, 56 Am. Dec. 670, arguendo.
Distinguished in East Hartford v. Hartford Bridge Co., 10 How. 536.
13 L Ed. 529, in case involving grant of franchise to municipal corpora^
tion; Rice v. Railroad Co., 1 Black, 373, 17 L. Ed. 151, asserting right
of Congress to revoke conditional grant to territory before vested rights
acquired.
Limited in Pcarsall v. Railroad Co., 161 U. S. 661, 40 L. Ed. 843, 16 "^
Sup. Ct. 708, holding that where charter authorizes, in general terms, acts
umiecessary to object of grant, legislature may revoke such*powers, unless
vested rights acquired under themf ^
Common law of England is the law of the particular States so far as ap-
plicable to conditions, and not abrogated by statute.
Cited in Bains v. Schooner James and Catherine, 1 Bald. 553, Fed. Cas.
756, holding that admiralty jurisdiction is referred to in Federal Constitu-
tion as limited by common law of England ; dissenting opinion in Ex parte
Holman, 28 Iowa, 126, to point that habeas corpus, being a common-law
writ, State courts may under it inquire into legality of imprisonment by
order of Federal courts ; United States v. New Bedford Bridge Co., 1 Wood.
& M. 448, Fed. Cas. 15,867, following rule.
Distinguished in In re Barry, 42 Fed. 120, 127, Fed. Cas. 1059 (see same
case, 136 U. S. 607, 617, 34 L. Ed. 607, 510) ; Gatton v. Railway Co., 95
Iowa, 117, 63 N. W. 591, holding that comqfion law forms no part of
Federal jurisprudence; Lisbon v. Lyman, 49 N. H. 582, denying applica-
. tion of rule where subject regulated by statute.
Extent of adoption of common law. Note, Ann. Gas. 191^, 1232,
1238.
Adoption of common law in United States. Note, 22 L. R. A. 504.
Miscellaneous. Cited in Robinson v. Bank, 18 Ga. 98, and dissenting
opinion in Hale v. Everett, 53 N. H. 140, but application doubtful ; Mormon
Church V. United States, 136 U. S. 52, 59, 84 L. Ed. 494, 497, 10 Sup. Ct.
806, 809, to point that Congress, in exercise of plenary power over ter-
ritories, may revoke grants made by them.
9 cr. 339-368, 3 K Ed. 762, OTid T. WATKIK&
If facts stated in special plea do not amount in law to JustiflcBitloii, yet
if issue be Joined thereon, and facts proved as stated, it is error to instruct
jury that facts so proved cannot sustain issue on ptet of defendant.
Applied in Lonergan v. Fenlon, 15 Fed. Cas. 804, holding that answer
in equity must prevail unless overcome by testimony of two witnesses, or
of one witness and attending circumstances; Logan v. Mathews, 6 Pa. St.
421, arguendo. /
Public officer. Tested with discretionary powers, not liable for abuse of
such power if he acted within jurisdictioii and without malice or fraud.
Approved in Valentine v. City of Englewood, 76 N. J. L. 516, 16 Ann. *
Oas. 731, 19 L. B. A. (N. 8.) 262, 71 Atl. 346, holding members of board ,
1—44
9 Cr. 359-374 NOTES ON V. S. REPORTS. 690
of health acting in line of duty under ststnte not personally liable for
damages arising from quarantine; Gould Vi^ Hammond, Me All. 237, Fed.
Cas. 5638, as to act of' collector in Belling perishable goods, holding further
that shortness of notice of sale affords no presumption of fraud ; United
States V. The Reindeer, 27 Fed. Cas. 768, aa to aet of officer seieing vessel
under mistake of fact.
If pnbUe offlcer, TWted with disdatlon&iT powers, azwciM malice In per-
f ormance of bis doUee, lie U Ualde Iot reniltUig injniy.
Cited and applied in Bailey v. Berkey, 81 Fed. 741, holding assessor
liable in damages for maliciously making excessive assessment.
9 Or. 359-367, 3 L. Ed. 7S8, THE AUiBTA V. BI.AS HORAN. -
If capture made 1>7 priTat«er lUegaUr equipped In nentral country, prize
court of sncb counttr mnat restore property to owner If bronsht vltbln tt>
Jnrisdictlon.
Approved in The Divina Pastora, 4 Wheat. 71, 4 It. Ed. 517; The
Schooner Tilton, 5 Mason, 471, Fed. Cas. 14,054; Hallett v. Lomothe, 3
Murph. (N. C.) 297, following rule.
Distinguished in Juando (Stroughton) v. Taylor, 2 Paine, 670, 677, 681,
Fed. 'Cas. 7558, denying application of rule when capture made by foreign
cruiser on high seas and prize not brought into American port.
SslTage will not be decnwd fof; services from wMch wrecked vessel derived
DO advantage.
Approved in The Job H. Jackson, 161 Fed. 1017, upholding award for
salvage ;» The Narragansett, Olcott, 392, Fed. Cas. 10,020, denying right
of vessel to claim as salvor, where she rendered no assistance, although
participating in search ; Clarke v. The Dodge Healy, 4 Wash. C. C. 657, Fed.
Cas. 2849, denying claim of persons forcibly taking possession of vessel
exposed to danger, against will of master; Byrne v. Johnson, 53 Fed. 842,
2 U. S. App. 520, holding that act of salvors, in unnecessarily proceeding
to port where cargo will not sell to advantage, will operate to reduce
amount of salvage.
9 Or. 309-372, 3 L. Ed. 762, THE OBOTIUS.
Xa order to conititnte capture, some act should be done tndlcatlTe of Inten-
I tlon to seize and retain aa prize.
Approved in The Mangrove Prize Money, 188 U. S. 721, 47 U Ed. 666,
23 Sup. Ct. 343, discussing question of proximity of other vessels to
capturing ship.
9 Cr. 372-374, 3 I.. Ed. 763, OETTIHaS T. B1TR0H.
It is error to decide caoae against answer wtaicb waa not denied by repUca-
tien. nor contradicted by evldeuce appearing In record. •
Cited in Sarchet v. Tho Sloop Davis, Crabbe, 193, Fed. Cas. 12,357, hold-
ing that dismissal, in order to be bar to second suit, must have been ordered
fiOl NOTES ON U. S. REPORTS. 9 Cr. 374-455
on merits of cause; Parton v. Prang, 3 Cliff. 542, Fed. Cas. 10,784,
argaendo.
Miscellaneous. Referred to in Scott v. Burch, 6 Har. & J. 70, as instance
of practice.
9 Or. 374-387, 3 K Ed. 764, UNITED STATES ▼. BBTAN AMB WOODCOCK.
Act of CongresB, providing for priority of Uliited States, did not apply to
debt proYlously contracted.
Cited in State v. Harris, 2 Bail. 600, to point that right of State to
priority of payment is not common-law right, and cannot exist in absence
of statute. I
Priority of State of United States in payment. Note, 29 L. R. A. 280.
9 Or. 387-388, 3 L. Ed. 768, THE BBIO CONOOBD.
Where goods hrought by liuperlor force, or by inoYltable necessity, Into
United States, they are not dutiable.
Approved in United States v. Eighty-five Head of Cattle, 205 Fed. 681,
holding cattle straying across Canadian boundary were not imported or
subject to forfeiture ; Merritt v. One Package, 30 Fed. 197, 198, and Cargo
ex Lady Essex, 39 Fed. 767, where vessel driven ashore by stress of
weather; Uriited States v. Celluloid, 82 Fed. 632, holding that goods will
not be forfeited, where unlawfully brought into country by mere tres-
passer, and not by consent of owner.
If goods Seized for violation of revenue laws are restored to owner under
order of court, and sold here, they are liable to duties.
Cited in The Waterloo, 1 Blatchf. & H. 121, Fed. Cas. 17,257, applying
rule where lower court ordered derelict goods sold and duties paid thereon ;
The Nereide, 1 Wheat. 178, 4 L. Ed. 65, and Prince v. United States, 2
Gall. 209, Fed. Cas. 11,425, following rule; Jackson v. United States, 4
Mason, 190, Fed. Cas." 7149, ruling similarly where goods found derelict
and imported voluntarily.
Miscellaneous. Cited in Cross v. United States, 1 Gall. 31, Fed. Cas.
3434, as illustrating distinction between proceedings in admiralty and at
common law.
9 Cr. 388-456, 3 L. Ed. 769, THE NEBEIDE.
Merchant having fixed residence and place of business does not acquire
foreign commercial character by occasional visit to another country.
Cited ^n Cadwalader v. Howell, 18 N. J. L. 144, holding that absence
from residence does not deprive person of right to vote, if such absence be
with intent to return.
Stipulation In treaty that ''neutral bottoms make neutral goods" does not
Include rule that "enemies' bottoms make enemies' goods."
Cited in El Telegrafo, Newb. 386, Fed. Cas. 15,049, holding that where
neutral has acquired domicile in enemy's country, his goods will be deemed
enemy's goods. f
9 Cr. 4^6^02
NOTES ON U. S. REPORTS.
692
A witness ought never ta swear to inf erencee^ without staiUng train of
reafloning by which his mind has been led to them.
Cited in State v. Musgrave, 43 W. Va. 691, 28 S. E. 821, discussing sub-
ject of opinions as evidence.
Neutral goods shipped on board belligerent armed vessel will not be af-
fected if owner gives no aid to such vessel in combat.
Approved in The Atlanta, 3 Wheat. 415, 419, 4 L. Ed. 423, 424, following
rule.
Sailing with intent to break blockade constitutes cause for confiscation.
Applied in United States v. Packages, 27 Fed., Cas. 286, holding mere
loading on vessel with intent to ship to blockaded port, cause for forfeiture
of goods.
Duty of conquering with respect to obligations of conquered State.
Note, 5 B. E. 0. 907.
Miscellaneous. Cited in In re Aubrey, 26 Fed. 851, on point that comity
to be extended to foreign governments depends upon Congress, and not
upon the judiciary; The Parkhill, 18 Fed. Cas./ 1197, but application
doubtful.
9 Cr. 466-502, 3 L. Ed. 791, PBATT T. LAW.
Grantee of' land bounded by street or alley is entitled to right of way wet
it, as appurtenant to grant.
Cited in Moose v. Carson, 104 N. C. 434, 435, 17 Am. St. Eep. 682, 683,
10 S. E. 690, holding conveyance of such street void, if it impairs grantee 'a
right of way.
»
Where vendor unable to fully perform contract for sale of lands, equity
will confirm conveyance of part made and decree repayment of proportionate
part of purchase money with interest.
Approved in Warner v. Daniels, 1 Wood. & M. 113, 114, Fed. Cas. 17,181,
holding that equity will relieve as to part of contract, although rescindinc^
as to other part on ground of fraud; Palmer v. Gould, 144 N, Y. 675, 39
N. E. 380, holding that where defendant contracts to convey land, to part
of which he has not title, equity will order conveyance to extent of in-
terest; Veazie v. Williams, 8 How. 160, 161, 12 L. Ed. 1029, 1030; Foster
v. Swaaey, 2 Wood. & M. 221, Fed. Cas. 4984; Kirksey v. Mitchell, 8 Ala.
411, arguendo.
Specific performance will not be decreed, when impossible or unreasonable.
Approved in Reed v. Sefton, 11 Cal. App. 93, 103 Pac. 1098, holding
specific performance would not be decreed after lapse of twenty-eight years
where land had increased ten times in value; Taylor v. Langworth, 14 Pet.
175, 10 L. Ed. 406, holding that such remedy may be barred by lapse of
time; Garnett v. Macon, 2 Brock. 247, Fed. Cas. 5245, appl3dng rule where
contract unreasonable when made; Langworth v. Taylor, 1 McLean, 401,
Fed. Cas. 8490 (see 14 Pet. 175, 10 L. Ed. 406, supra) ; McKay v. Carrington,
\
693 PRATT v. LAW; 0 Cr. 456-^02
1 McLean, 65, Fed. Cas. 8841, denjdng specific performance, becanse of
laches of plaintiff; Aday v. Echols, 18 Ala. 357, 52 Am. Dec. 227, holding
that contract must be proved as alleged in bill; dissenting opinion* in
Bogers v. Sannders, 16 Me. 104, majority decreeing specific performance
where complainant, because of laches, barred from remedy at law; Mc-
Ansland v. Pundt, 1 Neb. 252, 93 Am. Dec. 371, refusing decree where
complainant guilty of negligence in performance of his part of contract;
Hadlock v. Williams, 10 Vt. 572, where defendant had no title to land,
contracted to be conveyed; Garnett v. Macon, 6 Call (Va.), 372, holding
that in order to decree specific performance at instance of vendor, his
title must be unquestionable; Boaten v. Scheffer, 21 Gratt. 495, denying
decree where complainant failed to perform on his part.
Althougb bill for specific performance fails, court of canity, having ac^
(ITilred JurisdlGtioo, may give compensation to complainant in quantum damnlfi-
catns.
Approved in Kelly v. Allen, 34 Ala. 669, in proceedings for injunction
^ restrain action at law on note, and allowing damages for fraud in
executing note; Powell v. Higley, 90 Ala. 109, 7 South. 441, where bill
failed, but compensation decreed for improvements made on land; Whit-
Bett V. Kershaw, 4 Colo. 432, on point that equity may render decree for
®ojn pi ainant under prayer for general relief, although prayer for specific
^lief denied; Woodman v. Freeman, 25 Me. 547, 555, awarding damages
jn case of fraud where no complete remedy at law; Rutherford v. Williams,
^o. 37, in proceedings for accounting, decreeing as damages, defend-
*^'a TDrofits as trustee; Van Allen v. Railroad Co., 144 N. Y. 180, 38 N. E.
n^r* «iJ.lowing damages for breach of contract, where complainant in good
^th grayed for specific performance, not knowing of defendant's inability
^ P^x^form; Nagle v. Newton, 22 Gratt. 820, under facts similar to prin-
>h1 <3ase; Mason v. Bridge Co., 17 W. Va. 422, in proceedings for injunc-
^'^ ^.warding damages for injury received during continuance of wrongful
^^^ ; Teazie v. Williams, 8 How. (Miss.) 160, Magic etc. Co. v. Elm City
K®-> IL3 Blatchf. 158, Fed. Cas. 8949, Rider v. Gray, 10 Md. 300, 69 Am.
^•^ 189, Mitchell v. Sheppard, 13 Tex. 490, arguendo. •
,.^i^tinguished in Blanchard v. Railroad Co., 31 Mich. 59, 18 Am. Rep.
J * denying application of rule, where there was no means of computing
^Eiight to specific performance with compensation of contract for sale
of land. Note, Ann. Gas. 1915D, 1115.
^•quitable interests are liable to attachment in Maryland, by statute.
57.'^'^Xiproved in Pelzer Mfg. Co. v. Pitts, 76 S. C. 357, 11 Ann. Cas. 665,
^^^^^^^ E. 32, holding equitable interest of firm in stock certificate securing
Q^^^ of partner given as firm capital subject to attachment for firm debt;
jjj^^^>:»ib8 V. Jordan, 3 Bland Ch. 319, 22 Am, Dec. 266, sustaining attach-
^^'*; of equitable interest in land; May v. Buckhannon etc. Co., 70 Md.
17 Atl. 275^ holding, however, that mere issuing of writ of attach-
9 Cr. 456-502 NOTES ON U. S. REPORTS. 694
menty does not create lien on such eqnitable interest; Dowdy v. Blake, 50
Ark. 211, 7 Am. St. Rep. 90, 6 S. W. 898, following rule.
Explained in Sawyer v. Morte, 3 Cr. C. C. 332, 333, Fed. Os. 13,401,
mere equitable interest in lands is not attachable; Vai^ Ness v. Hyatt, 5
Cr. C. C. 146, Fed. Cas. 16,867, equity of redemption of leasehold cannot
be seized on fieri facias.
Denied in Piatt v. Oliver, 2 McLean, 298, Fed. Cas. 11,115, applying
common-law rules.
Equitable interest in real property as subject to attachment. Note,
Ann. Gas. 19160, 787.
One who has paid amount due on mortgacre of land In which he had certain
interest, may hold land until reimbursed hy mortgagor.
Cited in Wilson v. Kimball, 27 N. H. 307, holding that such payment
may operate as assignment of mortgage, although understood between
parties to be discharge; Aiken v. Gale, 37 N. H. 505, and Bank v. Acker-
man, 70 Tex. 321, 8 S. W. 47, holding further, that such payment creates
lien on land covered by mortgage.
Distinguished in Robinson v. Leavitt, 7 N. H. 101, where party giving
bond for payment of mortgage had no interest in land.
The right to subrogation. Note, 99 Am. St. Rep. 531.
Miscellaneous. Cited also in Brent v. Smith, 5 Cr. C. C. 673, Fed. Gas.
1841, but application doubtful.
NOTES
ON THB
UNITED STATES REPORTS.
I WHEATON.
1 Wheat. 1-6, 4 I.. Ed. 21, HENBY ▼. BAIJ..
Marylaod statate proUbitiiig Importation means <mly for permanent and
not temporary residence and by owner, not mere bailee.
Cited in Continental Nat. Bank ▼. Folsom, 78 Ga. 456, holding word
''may" in a statute could not give exclusive jurisdiction; Maria v. White,
3 Cr. C. C. 665, Fed. Cas. 9076, as instance of strict construction of statute.
1 Wheat. 6-9, 4 I>. Ed. 22, DAVIS ▼. WOOp.
Verdicts are evidence betwe^ parties and privies only.
Approved in Stone v. Commonwealth, 181 Mass. 441, 63 N. E. 1074,
holding finding of single Supreme Court justice in another case inad-
missible; Dent V. Ashley, Hempst. 55, Fed. Cas. 3809a, holding judgment
against administrator appointed in one State cannot be made the basis of
an action against administrator appointed in another; Qreeley v. Smith,
1 Wood. & M. 182, Fed. Cas. 5749, holding former judgment is a bar only
between parties and privies; Bloodgood v. Grasey, 31 Ala. 591, holding
judgment for freedom in favor of petitioner's mother, after his birth,
does not operate as an estoppel against one claiming defendant; Burlen
V. Shannon, 3 Grfiy, 390, holding decree "dismissing action of wife for
divorce is not conclusive in action by third person that her leaving home
was unjustifiable; Cheshire v. Robinson, 2 N. H. 128, holding plea in bar
to action for damages is good, if it aver they were settled by the referee
and judgment rendered oii his report; Chamberlain v. Carlisle, 26 N. H.
552, holding judgment binds parties and privies; Chambers v. Lapsley, 7
Pa. St. 25, holding verdict in ejectment against tenant in possession is
evidence in action on mesne profits against landlord; Bumham v. Webster,
1 Wood. & M. 174, Fed. Cas. 2179, arguendo. '
Distinguished in United States v. Hills, 124 Fed. 833, admitting depor-
tation decree to prove status of Chinese; Vigel v. Naylor, 24 How. 211,
16 L. Ed. 647, holding in suit by slave ,for freedom, a record of a former <
suit between mother of the plaintiff and the present defendant, establish-
ing the freedom of the mother, is competent evidence.
(695)
1 Wheat. 9-19 NOTES ON U. S. REPORTS. . 696
Hearsay is not admissible to establish freedom of petitioner's ancestor.
Approved in Donnelly v. United States, 228 U. S. 277, Ann. Gas. 1913£,
710, 67 L. Ed. 834, 33 Sup. Ct. 465, hearsay evidence relating to confession
of third party then deceased, properly excluded; Ellicott v. Pearl, 10 Pet.
438, 9 L. Ed. 486, holding hearsay not admissible to prove a specific point ;
Fulkerson v. Holmes, 117 U. S. 397, 29 L. Ed. 918, 6 Sup. Ct. 784, holding
hearsay admissible to prove pedigree; United States v. Morris, 1 Curt.
48, Fed. Cas. 15,815, admitting evidence that the person was treated as a
slave; Brown v. Crandall, 11 Conn. 95, holding, as between parties, gen-
eral reputation inadmissible to prove partnership; Famer v. Turner, 1
Iowa, 59, refusing to admit a book entry not shown to be contemporaneous ;
dissenting opinion in State v. Marshall, 137 Mo. 478, 36 S. W. 620,
majority permitting prosecutrix to testify as to her age, though no ques-
tion of pedigree in issue; Hamilton v. West St. L. & P. Ry. Co., 21 Mo.
App. 158, refusing to admit hearsay, where declarant was not dead; Mc-
Ewen V. Portland, 1 Or. 305, 306, rejecting evidence of reputation to sup-
port title; likewise Gregory v. Baugh, 4 Rand. 620, refusing to admit evi-
dence of belief in neighborhood that defendant's ancestors were entitled
to freedom; Gregory v. Baugh, 2 Leigh (Va.), 680, 695, court dividing
as to whether hearsay admissible to prove female ancestor an Indian.
1 Wlieat. 9-19, 4 L. Ed. 28, xks SAMUEL.
Under statute, deposition de rone esse admissiblo only when witness is
unattainable.
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; Whitford v. Clark
County, 119 U. S. 524, 30 L. Ed. 500, 7 Sup. Ct. 307, holding if party offering
deposition has knowledge of his power to get witness to trial, deposition
will be excluded; Stegner v. Blake, 36 Fed. 184, holding statute providing
for deposition de bene esse in civil cause includes equity cases.
It is sufficient that an information so set forth the offense as deaily to
brin^ it within the statute.
Cited in The Merino, 9 Wheat. 401, 6 L. Ed. 121, holding it sufficient if
information bring offense clearly within the ^(atute; United States v.
Weed, 5 Wall. 69, 18 L. Ed. 533, holding the information must substantially
state the offense; The Confiscation Cases, 20 Wall. 110, 22 L. Ed. 324,
holding technical niceties are not required in revenue cases; United States
v. Schooner Paryntha Davis, 1 Cliff. 535, Fed. Cas. 16,003, holding it is
sufficient to bring offense , within words of statute ; likewise in United
States V. Arfais, 24 Fed. Cas. 863; United States v. Three Hundred and
Ninety-six Barrels etc., 28 Fed. Cas. 122, declaring general averment that
statute has been violated insufficient; The Idaho, 12 Sawy. 159, 29 Fed.
389, holding it is sufficient if the act be described in the words of the
statute under which the proceedings take place; United States v. Hook,
26 Fed. Cas. 370, to support informer's claim, it is sufficient to show his
NOTES ON U. S. REPORTS. 1 Wheai 20-45
^^^^^tion caused the recovery; American Ins. Go. y. Johnson, Blatchf,
I5, Fed. Gas. 303, arguendo.
^^^« ^fMecntions under nonimportation laws l>elong to admiralty Jurisdiction.*
6 ^r^^ in United States v. Wiltberger, 5 Wheat. 115, 5 L. Ed. 48, in note
«fj\ X^,^iralty jurisdiction ; New Jersey Steam Nav. Co. v. Merchants' Bank,
1!^^/^. 389, 12 L. Ed. 485, declaring admiralty has jurisdiction where
tftv ^ carried by boat was lost by fire; The Belfast, 7 Wall. 638, 19 L. Ed.
^^1 liolding contracts of affreightment to be within exclusive jurisdiction
of admiralty; The Eagle, 8 Wall. 26, 19 L. Ed. 870, holding act extending
jurisdiction of District Gourts to seizures on waters inoperative.
Court peing In doubt on a libel in admiralty, ordered further proof.
Cited in Garland v. Davis, 4 How. 154, 11 L. Ed. 917, declaring this prac-
tice to be confined to admiralty and refusing to allow a repleader; The
Venezuela, 52 Fed. 875, 1 U. S. App. 314, receiving new material evidence,
not intentionally withheld in District Court; Vanderheyden v. Reid, 1
Hopk. Qi. 469, allowing issue of insanity to be tried by jury in appealed
ease.
1 ynieat. 20-24, 4 L. Ed. 25, THE OCTAVIA.
Wlien onus probandi rests on claimants, forfeiture will be pronounced,
imiMB defense is clear of reasonable doubt.
Cited in The Ocean Bride, 1 Hask. (Fox Dec.) 340, Fed. Gas. 10,404,
liolding, when importation is proved, burden rests with claimants to. estab-
feh their innocence.
Extent of admiralty Jurisdiction.
Cited in New Jersey Steam Nav. Co. ▼. Merchants' Bank, 6 How. 389,
*2 Im. £d« 485, holding action for specie on vessel burnt in port within ad-
^>aity jurisdiction ; The Belfast, 7 Wall. 638, 19 L. Ed. 270, holding stat-
^^« Authorizing contracts of affreightment to be enforced in rem through
State courts unconstitutional; The Wave, Blatchf. & H. 240, Fed. Gas.
7^7, holding admiralty has jurisdiction where tide ebbs and flows, though
^^Wjx body of a State.
^ ^^^^^«^t. 26-46, 4 I.. Ed. 27, THE MABY AND SUSAN.
^K^%ie passes on deUyery to carrier, where goods are diipped In ponmance'
^^A«TB from consignee.
^I>X>xoved in The Carlos F. Roses, 177 U. S. 667, 44 L. Ed. 934, 20 Sup.
Ct. ^Os, determining title to captured goods; State v. Kelly & Co., 123
TI^^^- 563, 133 S. W. 1012, applying rule to sale of intoxicating liquors
or^^X"^^ through mail ; Pullman Car Co. v. Metropolitan Ry. Co., 157 U. S.
^^^ ^9 L. Ed. 638, 15 Sup. Ct. 507, holding title to part pietssed when
^i^fkts inspected, to rest when put on cars; The Sally Magee, Blatchf.
^^, 386, Fed. Gas. 12,260, holding cargo became stamped with character
^ consignees from inception of voyage ; Harrison v. Hixson, 4 Blackf . 228,
folding bill of lading is only prima facie evidence of title in consignee;
1 Wheat. 46^84 NOTES ON U. S. REPORTS. 698
Sonthern Express Co. v. Craft, 49 Miss. 496, 19 Am. Rep. 9, 10, permitting
consignor to sue carrier; Woolsey v. Bailey, 27 N. H. 219, title to goods
ordiered passes on delivery to ship.
Distinguished in The Carlos F. Roses, 177 U. S. 680, 681, 44 L. Ed. 939,
20 Sup. Ct. 813, determining title to captured goods.
Pajssing of title by delivery to carrier for transportation to consignee
or veiidee. Note, 22 L. R. A. 4^0.
1 Wheat. 46-61, 4 I.. Ed. 32, THE MABY AND SUSAN.
Person domiciled in enemy's country is an enemy, and his propertsr 1b
liable to capture on the high seas. ,
Cited in The Sarah Starr, Blatchf. Pr. 76, Fed. Cas. 12,352, confiscating
property of neutral domiciled at enemy's port.
No notice of passing of laws is necessary, unless made so by the law itself.
But it is otherwise with orders issued by the executive, prohibiting capture of
xsertain vessels.
Cited in Lorent v. Insurance Co., 1 Nott ft McC. 505, holding words
"from and after" are exclusive of the date of the statute, hence policy
dated same day embargo laid is good; Strafford Bank v. Cornell, 2 N. IJ.
327, holding judgment is presumed to have been entered on last day of
term.
Fact that conmiander is an alien Bnemy does not invalidate a capture
made -by him.
Enemy goods shipped before commencement of hostilities as subject
of maritime prize. Note, Ann. Gas. 1916B, 737. ^
Miscellaneous. Cited in East Hartford v. Pitkin^ 8 Conn. 402^ but not in
point.
1 Wheat. 62-74, 4 I>. Ed. 37, THE BUGEN.
An American subject in business in enemy's country is, as to tliatv ah
enemy, and his property liable to forfeiture.
Cited in Griswold v. Waddington, 16 Johns. 496, holding partnership
dissolved by war between partners' countries; United States v. One Hun-
dred and Twenty-nine Packages, 27 Fed. Cas. 286, holding sailing^ with
intention to carry on trade, is a suflficient overt act to forfeit goods ; United
States V. One Hundred Barrels, 27 Fed. Cas. 293, 297, confiscating goods
of one trading with enemy.
1 Wheat. 75-84, 4 L. Ed. 40, THOMPSON v. GBAY.
Title passes when the article is selected and set aside ftom others of same
description.
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;
699
If OTES ON U. S. REPORTS. 1 Wheat. 85-95
^<^Ott V. King, 12 Ind. 208, holding that the admeasurement and. setting
^P&rt of the com, and payment of money completed sale; Baldwin v. Com-
monwealth, 11 Bush. (Ky.), 428, 429, holding that the execution of bond
^y the bidder with surety cannot be regarded as a condition precedent
^ Vesting right of property.
When title passes to goods sold from mass. Note, 9 Ann. Gas. 30.
^ ^eat 85^91, 4 I.. Ed. 42, Ain>£B80N ▼. LOKODEN.
SoretieB on bond of corporation agent are liable to directors to whom it
^^ executed though they have gone out of oi&ce before breach.
-Approved in United States v. Pumphrey, 11 App. D. C. 56, United States,
*^ obligees, can maintain action on bond against obligors made with ref-
^ence to hire of Indians of reservation, though Indians are beneficiaries;
*^«Fiiigs Soc. V. Wennerhold, 81 Cal. 534, 22 Pac. 922, holding liabiUty of
^^ety, though secretary is appointed by directors, elected for one year,
J^-* <ioixtinue through, the term of his actual holding; Louisiana State
J^-fc "v^- Ledoux, 3 La. Ann. 676, to same effect; Hoxie v. Weston, 19 Me.
<^^y folding requirement of statute that bond be given to assessor, docs
xvOT p>x*ctA7ent obligee from suing; Sunmer v. Steward, 2 N. H. 41, holding
o^v t;l:i^ party in interest may release; State v. Wells, 61 Tex. 563, holding
surety liable, until bond of successor is approved.
1 ^to.^^^-|j, 9i_95^ 4 I,, Ed. 44, NBW OBIiEANS ▼. WINTER.
^^^^^^ieral courts have not Jurisdiction of suit between dtisen of territorr^
M* ^2:i.^t:tjB«n of a State.
^^T>:xToved in WeUer v. Hanaur^ 105 Fed. 193, following rule; Alabama etc.
Ry- ^^^- V. Thompson, 200 U. S. 219, 50 L. Ed. 448, 26 Sup. Ct. 161, where
piaid-txS, in good faith, elects to sue jointly, in tort, foreign corporation a;id
^^^•^^"ts, presents separable controversy, which may be removed to Federal
con^ ; Downes v. BidweU, 182 U. S. 259, 46 L. Ed. 1095, 21 Sup. Ct. 776, bold-
ly ^^x-to Rico not part of United States within taxing clause of Constitution ;
den ^-^^ Cent. etc. R. R. v. Bell, 176 U. S. 333, 44 L. Ed. 491, 20 Sup. Ct. 403,
I ."^^^^g Federal jurisdiction where citizens of different States assert joint
o "^^^ "to recover land situated in State of residence of some of them ; Clark v.
. r|V ^^rn Pac. Co., 175 Fed. 125, applying rule where plaintiff was .a citizen
jQ^ ^^^^tory of Arizona ; A. B. Andrews Co. v. Puncture Proof Footware Co.,
Y *^^sd. 765, Federal court has no jurisdiction over action brought by New
. ^^ corporation against Pennsylvania corporation for redress in use of
,. ^ name where title to trade name still stands in Pennsylvania partner-
^'^^^ 5 ZhlaxweU v. Federal Gold & Copper Co., 155 Fed. Ill, 83 C. C. A. 570,
. *^*^^ng rule in suit between citizen of Minnesota and Arizona corporation
?^. ^iircuit Court of Minnesota; Watson v. Bonfils, 116 Fed. 159, holding
joi^xti^j. of citizens of States with citizens of territories does not give jurisdic-
^^^ ; Xromer v. Everett Imp. Co., 110 Fed. 24, holding jurisdiction of inter-
^^^^ir's claim is ousted where it depends on citizenship of complainant,
"''^^^ ^ause is dismissed as to him; California Oil & Gas Co. v. Miller, 96
^
I Wheat. 91-95 NOTES ON U. S. REPORTS. 700
Fed. 16, holding no diversity of citizenship occurs where complainant is
Arizona corporation; Scott v. Jones, 5 How. 377, 12 L. EcL 197, holdings
a territory is not a State ; Marshall v. Railroad Co., 16 How. 304, 14 L. £(L
964, holding court has jurisdiction, though one party be a corporation;
Barney v. Baltimore, 6 Wall. 287, 18 L. Ed. 827, holding court had no juris-
diction where one party was citizen of District of Columbia; Mansfield
etc. Ry. Co. v. Swan, 111 U. S. 381, 28 L. Ed. 463, 4 Sup. Ct. 511, holding
necessary citizenship must appear in the record; Koenigsberger v. Mining
Co., 158 U. S. 47, 39 L. Ed. 891, 15 Sup. Ct. 75^4, assuming jurisdiction
where territory became a State, pending appeal; Hooe v. Jamieson, 166
U. S. 397, 398, 41 L. Ed. 1050, 17 Sup. Ct. 597, holding court without juris-
diction where plaintiff was of District of Columbia; Glover v. Shepperd,
II Biss. 576, 15 Fed. 836, holding petition describing them as residents
of certain States bad ; Prentiss v. Brennan, 2 Blatchf . 164, Fed. Cas.
11,385, refusing to take jurisdiction of suit between aliens; Cissel v.
McDonald, 16 Blatchf. 153, Fed. Cas. 2729, holding citizen of District of
Columbia is not citizen of State; as also in The Land Co. v. Elkins, 22
Blatchf. 204, 20 Fed. 546, and Watson v. Brooks, 8 Sawy. 321, 13 Fed.
543, all holding similarly; Darst v. Peoria, 13 Fed. 564, holding territory
is not State; Leddon v. Virginia etc. Co., 36 Fed. 8, holding District of
Columbia is not State; Strasburger v. Beecher, 44 Fed. 213, holding a
territory is not a State; Dunton v. Muth, 45 Fed. 394, holding when de-
fendants were citizens of territory at beginning of action, it could not
be removed on admission of territory; Snead v. Sellers, 66 Fed. 372, 30
U. S. App. 8, holding citizen of territory cannot sue citizen of State in
Federal courts; Suesenbach v. Wagner, 41 Minn. 109, 42 N. W. 925, giving
same faith to judgments of territorial courts as to State courts; dissent-
ing opinion, Newcomb v. Smith, 2 Pinn. 143, majority holding rights g^ven
to citizens of territory are same as those of States. .
Distihguishcfd in The UUock, 9 Sawy. 642, 19 Fed. 212, construing
"State" in pilot regulation to include territory; as also in Neil v. Wilson,
14 Or. 414, 12 Pac. 81?,
What contracts will support maritime lien. Note, 70 L. R. A. 892»
399, 423,^29.
All parties on each side must have Jnrisdictioiial capacity.
Approved in Sweeney v. Carter Oil Co., 199 U. S. 257i 50 L. Ed. 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 certain of petitioners
are "residents'' of State other than that of which plaintiff is citizen, and
that none of petitioners are "residents and citizens" of State of plaintiff's
citizenship, is insufficient; dissenting opinion in McNutt v. Bland, 2 How.
22, 11 L. Ed. 164, majority holding the fact fhat Grovemor and one defend-
ant are of same State will not oust jurisdiction; Peninsular Iron Co. ▼.
Stone, 121 U. S. 632, 633, 30 L. Ed. 1020, 7 Sup. Ct. 1010, 1011, dismissing
suit where plaintiff and defendant were from same State; Snaith v. Lyon,
133 U. S. 319, 33 L. Ed. 636, 10 Sup. Ct. 304, where plaintiffs were of
^^:^^*ig one defendant cannot have cause removed, unless others could;
Bep. 315, holding Federal courts had no jurisdiction where any of
^^^^oration must be of same State; Bryant v. Rich, 103 Mass. 192,
^•^^ THE AURORA. 1 Wheat. 96-111
^ex-ent States; Merchants' Co. v. Insurance Co., 151 U. S. 384, ZZ L* Ed.
y ' ^4: Sup. Ct. 372, where plaintiffs were a citizen and an alien; Hubbard
. ^\^^ilx-oad Co., 3 Blatchf . 87, Fed. Cas. 6818, holding cause not removable
3qq^^^ plaintiffs were citizens of different States; Case v. Douglas, 1 Dill.
V. >l,-^ed. Cas. 2491, partners, plaintiffs, must all be of same State; Smith
/^^^^»x^s, 2 Sumn. 347, 350, Fed. Cas. 13,100, declaring that all defendantai
^g^^ join in the petition for removal; Kirkpatrick v. White, 4 Wash. 598,
Cx^ ' Cas. 7850, where four incorporators were of same State as plaintiff.
Pl^- ^ in Norton v. Railway Co., 32 Fed. 876, dismissing suit where actual
7-^ :fc^^^^ *^<^ defendant were of same State; Excelsior etc. Co. v. Brown,
^^^^ ^^. 324, holding Circuit Court has no jurisdiction where only one de-
^t^j^^^it is a resident of that district; Kane v. Indianapolis, 82 Fed. 772,
^^:^^*ig one defendant cannot have cause removed, unless others could;
%^ ^^^^'s Case, 2 Bland Ch. 148, holding citizenship of all individuals of
^ vve plaintiffs and defendants were of same State ; as also in Florence S. M.
ti- V. Sewing Machine Co., 110 Mass. 81, and North River Co. v. Hoffman,
5 Johns. Ch. 303; Robb v. Parker, 3 S. C. 69, holding Circuit Court of
South Carolim has no jurisdiction, where one of the plaintiffs is of New
"J^ork and the other of this State ; Texas & P. Ry. Co. v. Gay, 86 Tex. 582,
26 S. W. 601, to point that Federal courts would not have jurisdiction, one
Pi^rty being a corporation organized under act of Congress, on ground
of diverse citkenship ; Belknap v. Railroad Co., 25 Vt. 718, where plaintiffs
vere of different States ; also Beery v. Irick, 22 Gratt. 488, 12 Am. Rep. 541,
holding where plaintiffs were residents and nonresident of State, where
canse was pending, it could not be removed to a Federal court; New Jer-
^cy V. Babcock, 4 Wash. 346, Fed. Cas. 10,163, Schuyler v. Pelissier, 3 Edw.
Cfe. 192, following rule.
distinguished in Pond ▼. Railroad Co., 12 Blatchf. 290, Fed. Cas. 11,265,
^-^usixi^ to dismiss suit where one defendant answering was of same
State a.s the plaintiff; Heriot v. Davis, 2 Wood. &.M. 231, Fed. Cas. 6404
^^'asing to dismiss where defendants of same State as plaintiff were not
^ ^^Kecj - Babcock v. Millard, 2 Fed. Cas. 299, declaring rule not applicable
cx-e^jtQP»g bill; Renard v. Hargous, 13 N. Y. 265, holding all members
^ fi:xr:iu need not reside in a State to authorize issuance of an attachment.
|>/^-"'^<i«llaneous. Cited in Robinson v. Peru Plow etc. Co., 1 Okl. 149, 31
^^' ^Ql; State v. Burke, 33 La. Ann. 516, to point not decided in main
^ ^^^»--* 9ft-lll, 4 K Bd. 45, THE AURORA.
-Uvances must be shown to have been necessaxy to effect voyage or save
^* «fc^-^ j^Ql obtainable on credit of owner.
^'JP^X^Toved in The Wyandotte, 136 Fed. 473, where purchaser of draft
ora-'W'^-j^ by master of vessel in foreign, port for advances to pay proper
cua-tri*.^ had no knowledge that at time draft drawn master held drafts
1.0^ "^Xr^ight which he could have used to pay such charges, fact that charter-
1 Wheat. 96^111 NOTES ON U. S. REPORTS. 702
party provided ordinary disbursements should be payable from freight
only was no defense to draft ; The Underwriter, 119 Fed. 741, 762, denying
maritime lien under charter, where no necessity existed for pledge, and
libelant had knowledge of charter limitations;. The Solvay, 103 Fed. 324,
denying maritime lien for advances, where charter was with time char-
terer, who was bound to pay all charges ; Theo. H. Davies & Co. v. Soelberg,
24 Wash. 315, 319, 64 Pac. 543, 544, holding bottomry bond cannot be
given in connection with personal security to pay the debt regardless of
return of vessel to port ; The Grapesbot, 9 Wall. 139, 19 L. Ed. 655, holding
that to support hypothecation by bottomry, evidence of actual necessity
is required; The William, Blatchf. & H. 73, 76, Fed. Cas. 17,687, holding
that master can, in foreign port, hypothecate vessel for advances for
necessary repairs; The Boston, Blatchf. & H. 324, Fed. Cas. 1669, declar-
ing money must be necessary for that particular voyage; Burke v. Rich,
1 Cliff. 314, Fed. Cas. 2161, holding that to justify bottomry bond there most
be a necessity for funds, and a necessity for the hypothecation; Greely
V. Smith, 3 Wood. & M. 253, Fed. Cas. 5750, holding, if vessel is hypothe-
cated for a pre-existing debt, bond is invalid; Janney v. Belle Lee, 13 Fed.
Cas. 350, holding cannot create lien to release vessel from threatened
seizure; Harned v. Churchman, 4 La. Ann. 312, 50 Am. Dec. 675, holding
advances must have been necessary, and bond was the only means to raise
money ; also Dunning v. Insurance Co., 57 Me. 115, declaring that to justify
hypothecation by master, the same necessity must exist as would justify
a sale; Stirling v. Nevassa P. Co., 35 Md. 141, 6 Am. Rep. 380, holding
master cannot hypothecate for more than value of ship and freight;
White V. Cole, 24 Wend. 127, holding bottomry bond cannot be given for
a precedent debt ; Budge' v. Mott, 47 Wis. 61^, 3 N. W. 381, holding act
of master in not attempting to release vessel from arrest terminated his
employment; The Native, 14 Blatchf . 36, Fed. Cas. 10,054, arguendo.
Master is confLdential agent of the owners, and they are bound by his
contracts for repairs and necesBaries.
Apin-oved in The Lulu, 10 Wall. 200, 19 L. Ed. 908, declaring necessity
for credit must be presumed, where supplies were ordered by master, and
were necessary to fit ship, unless it is shown master had funds or credit,
and furnisher knew these facts ; The Julia Blake, 107 U. S. 428, 27 L. Ed.
599, 2 Sup. Ct. 700, holding master had no authority to hypothecate, where
cargo could have been forwarded, which would have been for the interest
of the skipper ; The Kate, 164 U. S. 466, 41 L. Ed. 516, 17 Sup. Ct. 138,
refusing lien for goods furnished to foreign vessel on order of charterer,
whom furnisher knows has undertaken to furnish supplies at his own
cost ; likewise in -The Valencia, 165 U. S. 268, 41 L. Ed. 718, 17 Sup. Ct.
324, where circumstances put libelant on inquiry as to terms of charter-
party, and he fails to inquire; Joy v. Allen, 2 Wood. & M. 328, Fed. Cas.
7552, declaring that necessity must be clearly shown before master can
hypothecate; The Panama, 01c. 348, Fed. Cas. 10,703, holding owner may
bottomry ship without regard to the necessity ; Murray v. Lazarus, 1 Paine,
576, Fed. Cas. 9962, holding master can hypothecate vessel, in foreign
^^ THE AURORA. 1 Wheat. 96-111
qJ^> fox repairs and provisions, if they cannot be procured on credit of
Po^^i as also in The Fortitude, 3 Sumn. 234, 258, Fed. Cas, 4953, and
N^y^ V. Nickerson, 3 Story, 478, 496, Fed. Cas. 11,274, to the same effect;
U{iii^ ^^ V- Baltzell, Taney, 64 Fed. Casi 10,061, deciding that owners are
^Ppi^^ Only to the value of ship and freight; The Gulware, 24 Fed. 488,
*o7c|^tig rule to similar facts ; Gardner v. White Squall, 9 Fed. Cas. 1203,
jf*'^^^^ master cannot make a loan on bottomry to pay for repairs con-
. ^^^^^ five months before under no expectation of bottomry security;
^^^J^^ndrick Hudson, 11 Fed. Cas. 1090, holding owner bound by contract
^j'^^ter; Holcroft v. Wilkes, 16 Ind. 374, holding master cannot bind
^*^^ to payment of notes; Merwin v. Shailer, 16 Conn. 496, it is incum- ,
bent on lender to show necessity for loan (see dissenting opinion, p. 497) ;
Budge V. Mott, 47 Wis. 614, 3 N. W. 381, holding act of master, in not
attempting to release vessel :^rom arrest, terminated his •mployinent;
Fumiss V. The Magoun, 01c. 60, 62, Fed. Cas. 5163, declaring that master
^ho hypothecated vessel on bottomry has not such an int^est as to dis-
qualify him to be a witness; Packard v. Sloop Louisa, 2 Wood. & M. 53,
Fed. Cas. 10,652, Leland v. Ship Medora, 2 Wood. & M. 107, Fed. Cas.
8237, Insurance Co. v. Gossler, 96 U. S. 648, 24 L. Ed. 864, and Brig Draco,
2 Sumn. 177, Fed. Cas. 4057, arguendo.
Master's power to hypothecate ship. Note, 68 Am. Dec. 641, 643.
Authority of master of vessel to pledge owner's credit for repairs, sup-
plies, or advances. Note, 18 Ann. Gas. 875, 878.
It is duty of creditor to dlstingaish and explain different claims some of
^liicb Would and some would not snpport It.
Cited in The Edward Albro, 10 Ben. 687, Fed. Cas. 4290, refusing libel-
^^ costs,, where he filed libel without allowing owner a reasonable time
^examine charges; The Bridgewater, 01c. 36, Fed. Cas. 1865, declaring
*^*«iits should exhibit, an account.
Admiralty wlU enforce lien of materialmen on foreign ships.
Ktea. in The General Smith, 4 Wheat. 444, 4 L. Ed. 611, to point that
f^ Sx>^en to domestic materialmen by statute would be enforced in ad-
^ralty ; New Jersey Steam Co. v. Merchants' Bank, 6 How. 390, 12 L. Ed.
C ^5^^^^<5i^ ^^^ giv®^ ^y statute; The J. R. Hoyle, 4 Biss. 238, Fed.
• "^^57, holding person making advances to release vessel from attach-
Tia^ *fcas lien; The Stephen Allen, Blatchf. & H. 178, Fed. Cas. 13,361,
- ^^^ materials furnished vessel in another State create a lien; The
Jeyus^lem, 2 Gall. 349, Fed. Cas. 7294, holding tradesman has lien on re-
paiJ^ "to foreign ship; Phillips v. The Thomas Scatterwood, Gilp. 9, Fed.
J^*?' ll,106, enforcing materialman's lien given by statute, in rem; The
Cw^^tio, 2 Ware (Dav.), 31, Fed. Cas. 2316, holding materialmen have lien
^^^^x-eign vessel; as also Davis v. Child, 2 Ware (Dav.), 74, Fed, Cas.
36^8, 2ane v. Brig President, 4 Wash. 456, Fed. Cas. 18,201, and Leland
^, ^\vip Medora, 2 Wood. & M. 96, 97, Fed. Cas. 8237, all to same effect;
wire Steamboat Josephine, 39 N. Y. 26, holding domestic materialman
^no lien; Cunningham v. Hall, 1 Cliff. 48^ Fed. Cas. 3481^ following rule.
/
1 Wheat. 112-124
NOTES ON U. S. REPORTS.
704
Distin^ished in The Robertson, 8 Biss. 186, Fed. Cas. 11,923, where
party did not actually advance money, but signed stipulation for release.
Admiralty jurisdiction of contracts. Note, 66 L. R. A. 221.
A second bond, indudinff amoimt due on an original invalid one, cannot
be ropported as to that amonnt.
Cited in Fumiss V. Brig Magoun, 01c. 64, Fed. Cas. 5163, holding bond
valid, though it covered items not entitled to bottomry lien; Greely v.
Smith, 3 Wood. & M. 349, 251, Fed. Cas. 5750, declaring a bottomry bond
may be good in part; as also in Carrington v. Pratt, 5 Fed. Cas. 153 (but
see 8. c, 18 How. 67, 15 L. Ed. 268) ; The Hunter, 1 Ware, 255, Fed. Cas-
6904, declaring bond may be good as to p^rt, though invalid as to rest.
Distinguished in Carrington v. Pratt, 18 Jlow. 67, 15 L. Ed. 268, holding
entire bond Toid, where taken for larger amount than sum advanced.
Miscellaneous. Cited in support of the proposition that our admiralty
courts take jurisdiction of contracts, whose subject matter is of admiralty
nature, in Waring v. Clarke, 5 How. 459, 12 L. Ed. 235, holding collision on
Mississippi, within ebb and flow of tide, is within admiralty jurisdiction;
The Maggie Hammond, 9 Wall. 457, 19 L. Ed. 780, enforcing maritime lien,
though parties be foreigners; Zane v. Brig President, 4 Wash. 454, Fed.
Cas. 18,201, holding, if subject matter of contract concern navigation of
sea, it is within admiralty jurisdiction,
1 "Wlieat. 112-115, 4 ti. Ed. 49, THE VENUa
Admiralty caee before Supreme Ocurt on appeal is as if inferior ooort* and
further proofs may be heacd.
Cited in Stalbird v. Beattie, 36 N. H. 456, 72 Am. Dec. 318, holding ap-
pellate court takes up case as it stood before rendition of judgment ; Soiiter
v. Baymore, 7 Pa. St. 418, 47 Am. Dec* 519, decre§ in admiralty aj^pealed
from is treated as nonexistent, pending appeal, and cannot be pleaded in
bar; Clarke v. Manchester, 56 N. H. 506, holding during appeal inferior
court cannot interfere; Folger v. The Shaw, 2 Wood. & M. 540, Fed. Cas.
4899, holding that it is lawful to make new allegations and proofs^ on
leave, in appellate courts.
1 \^eat. 115-124, 4 L. Ed. 50, PRESTON ▼. BBOWBEK.
Indian lands are not public lands.
Cited in Danforth v. Thomas, 1 Wheat. 158, 4 L. Ed. 60^ declaring that
mere extinguishment of Indian title did not subject land to appropriation,
unless expressly authorized by legislature; Danforth v. Wear, 9 Wheat.
677, 6 L. Ed. 189, holding statute invalidating surveys of Indian lands does
not affect lands without, though surveys ruA into Indian land; Qaines v.
Hale, 26 Ark. 185, holding act did not extend to lands then in possession
of Indians; Proffit v. Williams, 1 Yerg. 92, holding entry on prohibited
land is void; Trott v. M'Gavock, 1 Yerg. 479, titles acquired contrary to
statute are declared void.
\
\
706
NOTES ON U. S. REPORTS. 1 Wheat. 126-165
C^onrts recur to lilstory of time when statate wag paawd.
r -Approved in United States v. Union Pacific R. R. Co., 91 U. S. 79, 28
fir^M 228, Smith .V. Townsend, 148 U. S. 494, -87 L. Ed. 584, 13 Sup. Ct.
r^> tossouri & Ohia R. R. Co. v. Tennessee, 153 U. S. 502, 88 L. Ed. 799,
J^ Sup. Ct. 973, Tompkins v. Little Rock etc. Ry. Co., 21 Fed. 376, United
States V. Wilson, 68 Fed. 772, Baring v. Erdman, 2 Fed. Cas. 788, United
States V. Seeley, 27 Fed. Cas. 1012, Shorter v. Smith, 9 Ga. 627 (construing
franchise), dissenting opinion in Beebe v. The State, 6 Ind. 631 (construing
State Constitution), Canal Co. v. Railroad Co., 4 Gill & J. 163, dissenting
opinion in Maxwell y. State, 40 Md. 310, Funk v. Railway Co., 61 Minn.
439, 52 Am. St. Bep. 611, 63 N. W. 1101 (where statute was ambiguous).
Opinion of Justices, 66 N. H. 646, 33 Atl. 1084, Tafoya v. Garcia, 1 N. M.
483, Sandusky City Bank v. Wilbor, 7 Ohio St. 498, and Galveston v.
Menard, 23 Tex. 397, all following rule; Tucker v. Williamson, 229 Fed.
210, physician not prohibited from distributing narcotics under drug act.
because not personally attending patient; State v. Clausen, 86 Wash. 266,
Ann. Gas. 1916B, 810, 148 Pac. 30, applying rule to laws subject to referen-
dum.
1 Wheat. 125-130, 4 I«. Ed. 52, THE A8TBEA.
Not cited.
1 Wheat. 130-141, 4 I*. Ed. 53, MAT80N ▼. HOBD.
In locating warrants for land, it sliould be so described as to give notice
to and be identified by subsequent appropriators.
Cited in Patin v. Blaize, 19 La. 400, holding land sbould be so described
as to notify subsequent appropriators; McNeel v. Herold, 11 Gratt. 314,
liolding entry calling for objects of general notoriety will be supported.
1 Wheat 141-151, 4 I.. Bd. 56, TAYLOB ▼. WALTON.
Entry of land, to be valid, must be certain.
Cited in Patin v. Blaize, 19 La. 400, holding land should be so described
tts to give notice to subsequent appropriators.
1 Wheat 151-155, 4 L. Ed. 58» BABB ▼. LAPSLE7.
fiU. tot specific performance entertained in ccmtract for personalty, but
, <!tniil88ed because no binding agreement
Approved in Curtice Bros. Co. v. Catts, 72 N. J. Eq. 832, 66 Atl. 936,
upholding right to specific performance of contract to sell tomatoes grown
on certain land ; Express Co. v. Railroad Co., 99 U. S. 200, 25 L. Ed. 321,
dismissing bill where there was a power of revocation in contract; Car-
penter v. Atherton, 25 Cal. 571, declaring a contract, relating to personalty,
may be specifically enforced if indispensable to justice; Kimball v. Morton,
5N. J. Eq. 29, 43 J^. Dec. 621, decreeing execution of trust of personalty;
as also Merrill v. Merrill, 53 Wis. 526, 10 K. W. 686, holding same.
Specific perfoimance of personal property contracts. Note, 6 Ann*
Gas. 270.
I — A5
1 Wheat. 155-207
NOTES ON U. S. REPORTS.
706
1 Wlieat. 155-158, 4 L. Ed. 59, DANFOBTH ▼. THOIAAS.
Indian lands are not public lands.
Approved in Willow River Club v. Wade, 100 Wis. 94, 76 N. W. 274,
holding owner of both banks of navigable stream has no exclusive right to
fish therein; Danforth v. Wear, 9 Wheat. 676, 677, 6 L. Ed. 189, holding
statute invalidating surveys of Indian lands does not affect outside lands,
though their survey runs into Indian lands ; Rhode Island v. Massachusetts,
12 Pet. 746, 9 L. Ed. 1269, holding Supreme Court has right to define
boundaries of a State; Gaine? v. Hale, 26 Ark. 185, holding act did not
extend to lands then in possession of Indians; Doe v. Avaline, 8 Ind. 13,
defining an Indian; Profiit v. Williams, 1 Yerg. 92, holding entry on jiro-
hibited land void; Trott v. McGayock, 1 Yeig. 480, declaring title acquired
contrary to statute void; Willow River Club v. Wade, 76 N. W. 274, to
point that by the Revolution, sovereignty and public lands vested in the
several States.
V
1 Wlieat. 159-170, 4 L. Ed. 60, TKE ANTONIA JOHANNA.
Property of firm in trade in en^ny's country is confiscable on the lAfpx
seas, thougli one partner has neutral domicile.
Cited in Commercen, .2 Gall. 266, Fed. Cas. 3055, holding provisions for
supplying enemy confiscable.
1 Wheat 171-178, 4 L. Sd. 63, THE NEBE'ID.
Property libeled as prize sold, and proceeds ordered restored to claimant,
Is liable to same duties as if voluntarily imported.
Cited erroneously in Ship Panama, 01c. 347, Fed. Cas. 10,703.
1 Wheat. 179-207, 4 K Ed. 65, HEPBUBN ▼. DUNLOP.
Specific performance will be decreed if vendor can malce a good title uX
any time before decree.
Approved in Kentucky Distilleries etc. Co. v. Blanton, 149 Fed. 41, Gib-
son V. Brown, 214 111. 336, 73 N. E. 580, and Maryland Construction Co. v.
Kupcr, 90 Md. 542, 45 Atl. 199, all following rule; Hosmer v. Wyoming
Ry. etc. Co., 129 Fed. 892, 65 L. B. A. 81, where contract evidences actual
sale and purchase of realty, and time is not of essence, bill for specific per-
formance not dismissed for failure, to tender payment; Blanton v. Ken-
tucky Distilleries & Warehouse Co., 120 Fed. 359, reviewing authorities on
mutuality of contracts; Weinheimer v. Ross, 205 N. Y. 521, 99 N. E. 146,
admitting proof of release of mortgage after suit for rescission commenced,
thus curing defect in title; Armstrong v. Maryland Coal Co., 67 W. Va,
611, 69 S. E. 205, tender by vendor of deed when filing suit for specific
performance good though he dies before decree is had; Morgan v. Morgan,
2 Wheat. 299, 4 L. Ed. 244, refusing specific perfoi^mance where vendor
could not make good title ; Galloway v. Finley, 12 Pet. 297, 9 L. Ed. 1092,
holding vendee may enjoin payment of purchase money if vendor is unable
to make title; Kimball v. West, 15 Wall. 379, 21 L. Ed. 96, not permitting
707 HEPBURN v. DUNLOP. 1 Wheat. 179-207
rescission, where yendor at time of hearing tendered perfect title; Water-
man y. Banks, 144 U. S. 401, 36 L. Ed. 482, 12 Sup. Ct. 648, refusing specifio
performance, where contract did not conyey a present interest; Warner y.
Daniels, 1 Wood. & M. 112, Fed. Cas. 17,181, where yendor was guilty of
fraud, and performance refused; Chrisman y. Partce, 38 Ark. 60, allowing
specific performance where yendor can make title good; McKay y. Carring-
ton, 1 McLean, 65, Fed. X^as. 8841, refusing specific performance, where
vendor delayed, and there was a change in yalue ; Barnard y. Lee, 97 Mass.
94, holding bill not demurrable on ground that time was of the essence of
the contract; Bell y. Sternberg, 53 Kan. 574, 36 Pac. 1059, giving vendor
reasonable time to perfect title; Dresel v. Jordan, 104 Mass. 416, allowing
specific performance where deed was executed before any indication of
intent on part of other party to repudiate; Eaefer v. Rogers, 19 Minn. 43,
rescinding contract, where defendant misrepresented; Fletcher v. Wilson,
1 Smedes & M. 389, refusing rescission for defective title, where a perfect
title may be had ; Seaver v. Hall, 50 Neb. 884, 70 N. W. 375, holding vendor
may have specific performance by tendering good title at any time before
decree; Ewing y. Gordon, 49 N. H. 462, holding specific performance will
be decreed, though there has been laches, if compensation for delay can be
given; Conover v. Tindall, 20 N. J. L. 517, holding plea, that at time of
covenant "plaintiff had no title," bad; Rodman v. Zilley, 1 N. J. Eq. 327,
holding time may be dispensed with if not of the essence of the contract;
Oakey v. Cook, 41 N. J. Eq. 363, 364, 7 Atl. 602, 503, decreeing specific
performance, where vendor had good title at time of delivery; as also in
Seymour v. Delancy, 3 Cow. 519, 15 Am. Dec. 284, and Fortune v. Watkins,
94 N. C. 316, to same effect; Long v. Perdue, 83 Pa. St. 218, giving party
specific performance if he makes payment within reasonable time; Mc-
Kinney v. Jones, 56 Wis.' 50, 12 N. W. 381, holding specific performance
will be decreed, if vendor can make good title by time of decree; Kertz v.
Dunlop, 13 Ind. 281, arguendo ; Warner v. Daniels, 1 Wood. & M. 114, Fed.
Cas. 17,181, in rescinding contract, proportionate damages for residue may
be given, if party crihnot return property in good condition.
Distinguished in Smith v. Shorter, 6 Oa. 471, permitting rescission where
defendant was guilty of fraud.
When specific performance of valid contract will be refused, refusal
not being because the property is of any particular class. Note,
128 Am. St. Rep. 390.
Equity is witbout Jnxisdiction to relierfc, for breach of contract, where
there is an adequate remedy at law.
Cited in Baker v. Biddle, Bald. 408, 420, Fed. Cas. 764, holding equity
lias no jurisdiction where there is plain and adequate remedy at law; as
also in Pierpont v. Fowle, 2 Wood. & M. 29, Fed. Cas. 11,152 ; Miller y.
Miller, 47 Minn. 551, 50 N. W. 614, holding vendee's remedy for defect in
title is an action on the covenants ; Curtis v. Blair, 26 Miss. 327, 59 Am.
D6C 262, refusing to interfere where damages would be adequate redress;
Davis V. Tileston, 6 How. 120, 12 L. Ed. 369, arguendo.
X
\
I Wheat. 179-207
NOTES ON U. S. REPORTS.
708
Equity, having obtained Juilsdlction of principal qnestton, "will proceed/
to make such other decree as juBtica may require.
Approved in American Creosote Works v. C. Lembcke & CJo., 166 Fed.
812, cause of action for damages for breach of contract cannot be joined
vrith cause of action for injunction in one suit; Ryan v. Martin, 165 Fed.
773, bill in equity to compel delivery of stock due as commission cannot
be maintained ; Richi v. Chattanooga Brewing Co., 105 Tenn. 653, 58 S. W.
646, awarding damages where nuisance abated ; Pierpont v. Fowle, 2 Wood.
& M. 30, Fed. Cas. 11,152, holding that if case is commenced in equity,
court will finish it there on matters concurrent at law; Foster v. Swascy,
2 Wood. & M. 221, Fed, Cas. 4984, continuing proceeding once properly
begun is proper for chancery as well as law ; Carmichael v. Adams, 91 Ind.
527, holding equity having acquired jurisdiction of foreclosure, had right
to treat case as one of exclusive equity jurisdiction; Brady v. McCosker,
1 N. Y. 217, holding, if there is an impediment preventing recovery at law,
a bill in equity will be entertained to have bill declared void; Holmes v.
Fresh, 9 Mo. (213) 214, under prayer for general relief, court will grant
such relief as allegations and proofs warrant; Baker v. Biddle, Bald. 409,
416, Fed. Cas. 764, following rule.
Dismiesal of first bill for specific performance, is bar to second.
Approved in Lockhart v. Leeds, 12 N. M. 164, 76 Pac. 314, judgment
against plaintiff on bill to have mine location declared void for fraud and
violation of agreement to ^locate for plaintiff bars suit to declare defendant
holds mine in trust.
Distinguished in State v. Torinus, 28 Minn. 184, 9 N. W. ^29, where
rauscs of action were distinct, though arising from same subject matter;
Burton v. Burton, 58 Vt. 421, 5 Atl. 284, holding decree dismissing libel
without prejudice not a bar.
Where sale is to pay debt of vendor to vendee, vendor must pay interest
until he makes good title and account for rents and profits.
Cited in Stevenson v. Maxwell, 2 Sand. Ch. 279, holding purchaser not
liable for interest until after tender of deed; dissenting opinion in Hoard
V. Huntington etc. R. Co., 59 W. Va. 103, 8 Ann. Cas. 929, 53 S. E. 283,
majority holding vendor entitled to interest on purchase money on sale of
land under executory contract though in default in making deed.
Honestly stated mistaken opinion as to value of land, unaccompanied by
assertion or statement untrue in fact, is not fraudulent misrepresentation.
Cited in Ferson v. Sanger, 1 Wood. & M. 146, Fed. Cas. 4752, holding
party must appear conusant of fraud, or to have profited by it ; Hershey v.
Keenibortz, 6 Pa. St. 132, it is not necessary that party should disclose his
suspicions of existing deficiency.
Distinguished in Schechinger v. Gault, 35 Okl. 421, Ann. Gas. 1914D,
468, 130 Pac. 307, overruling demurrer to complaint asking rescission and
recovery of money where there was failure of title because of wife's home-
stead.
Expression of opinion as fraud. Note, 35 L. B. A. 419.
709 NOTES ON U. S. REPORTS. 1 Wheat. 208-218 •
laablllty to give good title at time of decree does not aatborise decree
^ fwclBslon wliere there is adequate legal remedy for breacli.
Approved in Sievers v. Brown, 34 Or. 459, 46 L. B. A. 642, 66 Pac. 173,
i^olding where, after vendee in possession refuses to pay, vendor is entitled
^0 all crops.
1 ^eat 208-216, 4 I.. Ed. 78, ST. JOZE INPIANO.
When foreign agent buys on his own credit, property is not divested from
^ until distinct act of appropriation to principal's use. , ^
Approved in The Carlos P. Roses, 177 U. S. 672, 44 L. Ed. 986, 20 Su#.
'^t. 810, holding proof of neutral title insufficient; Befwind v. Schultz, 25
^ed. 9\%^ holding libelant did not sell goods on agent's credit exclusively,
afld could resort to principal'; The Suliote, 23 'Fed. 924, holding that by
^^glish law credit of a foreign principal is not presumptively pledged by
ffisident agent; Treadwell v. Anglo-American Packing Co., 13 Fed. 24, hold-
\ title of goods given to carrier to be delivered on performance of
'•''ndition is in shipper; Jon6s v. Brewer, 79 Ala. 649, holding title remained
in shipp^r^ where he took bill of lading in his own name, attached draft
ftn^a indorsed it to freight 'agent with instructions to deliver to bearer.
^istin^ished in dissenting opinion in The Carlos F. Roses, 177 U. S.
687, 44^ j^ jjd. 942, 20 Sup. Ct. 816, arguendo; The Amy Warwick, 2
Spi'agxie, 166, Fed. Cas. 343, where title was in neutral.
^^tention of title on conditional sale of goods. Note, 23 E. B. G. 383.
^d,ssing of title by delivery to carrier for transportation to consignee
OT vendee. Note, 22 L. B. A. 420.
^igrlits of unpaid vendor retaining bill of lading. Note, 4 E. B. G. 766.
^^Sht of stoppage in transitu. Note, 28 E. B. G. 4}0.
-termination pi right of stoppage in transitu. Note, 23 E. B. G. 480.
^ljlj^*^^^llaneous. Cited in Newhall v. Vargas, 15 Me. 322, 33 Am. Dec. 621,
^ ^Tom note that Napoleonic code adopts a principle similar to common
ItV W\>on stoppage in transitu.
^ ^eat. 215-218, 4 L. Ed. 74, BENNEB ▼. lAABSHALL.
Commencement of snbseguent suit for same cause in court of another
State cannot be pleaded in abatement.
Approved in Hamill v. Peck, 11 Colo. App. 4, 62 Pac. 217, holding judg-
' ment debt cannot be garnished by process from court other than that ren-
dering judgment ; Missouri etc. Ry. Co. v. Bradshaw, 37 Okl. 320, 132 Pac.
328, applying rule to attachment proceedings when parties are reversed;
Banigan v. Woonsocket Rubber Co., 22 R. I. 94, 46 Atl. 184, holding dis-
continuance is good answer to plea of pendency of prior action; Wallace
V. McConnell, 13 Pet. 151, 10 L..£d. 102> holding same as to subsequent
proceedings in attachment; Pratt v. Burr, 6 Biss. 54, Fed. Cas. 11,373,
paying judgment in subsequent suit is no defense to maker of note ; Camp-
bell V. Emerson, 2 McLean, 31, Fed. Cas. 2357, holding same as to subse-
quent attachment; Cohen v. Solomon, 66 Fed. 414, holding subsequent pro-
1 Wheat. 219-232 NOTES ON U. S. REPORTS.
710
/
ceedings in a State court void; Zurcher v. Magee, 2 Ala. 256, holding
garnishment of judgment of no effect; Steamboat Farmer v. McQraw, 31
Ala. 664, holding recovery by bailee in suit conmienced after the suit by
general owner will not bar it ; Humphries v. Dawson, 38 Ala. 204, holding
priority and not pendency of another action is available under plea of
abatement; Trowbrrdge v. Means, 5 Ark. 139, 39 Am. Dec. 371, holding
judgment debtor not subject to garnishment; Hailman v. Buckmaster, 3
Oilm. 500, holding defendant may plead in abatement, pendency of writ of
error, sued out previous to such suit; Smock v. Graham, 1 Blatchf. 315,
holding pendency of subsequent suit cannot be pleaded in abatement; as
also in Sherwood \^ Hammond, 4 Blackf . 504, and Rizer v. Gilpatrick, 16
Kan. 568, to same effect; Rogers v. Odell, 39 N. H. 457, holding Massachu-
setts judgment rendered during pendency of suit may be pleaded in bar;
NichoU V. Mason, 21 Wend. 341, holding suit cannot be abated by plea
of second action afterward commenced ; as also in Wood v. Lake, 13 Wis.
91;^Hamill v. Peck, 52 Pac. 217, holding judgment debt not subject to
garnishment by process from another court.
Distinguished in Union Pac. Ry. Co. v. Baker, 5 Kan. App. 258, 47 Pac.
564, allowing plea of judgment rendered in another suit in another State.
Pendency of one action as defense to another. Note, 84 Am. Dec. 454.
If matter In abatement is pleaded imis darrein continoanceb Judgment^
if against defendant, is peremptory.
Cited in McKeen v. Parker, 51 Me. 392, following rule.
Judgment for damages may be entered by court without writ of inquiry,
where sum is certain.
Approved in Aurora v. West, 7 Wall. 104, 19 L. Ed. 50; McLain v.
Rutherford, Hempst. 48, Fed. Cas. 8868a, People v. Board of Supervisors,
125 111. 21, 17 N. E. 152, Tannehill v. Thomas, 1 Blackf. \ 145, and Price v.
Dearborn, 34 N. H. 485, following rule.
1 Wheat. 219-232, 4 L. Ed. 76, MOBEAN T. INSUBANOB CO.
Insurer on memorandum articles is only liable for total loss, which can
never happen where part of cargo reaches destination.
Approved in Washburn & Moen Mfg. Co. v. Reliance Ins. Co., 179 U. S.
10, 45 L. Ed. 56, 21 Sup. Ct. 4, affirming 106 Fed. 117, and construing
memorandum clause and rider as in pari materia, and holding owner could
not recover for actual or constructive total loss; Hugg v. Insurance Co., 7
How. 606, 12 L. Ed. 838, holding there must be a destruction in specie of
entire cargo; Insurance Co. v. Fogarty, 19 Wall. 643, 22 L. Ed, 218, hold-
ing a destruction in sx)ecie to be a total loss; Humphreys ▼. Insurance Co.,
3 Mason, 443, Fed. Cas. 6871, deciding there could be no recovery where
loss was not total; Robinson v. Insurance Co., 3 Sumn. 224, Fed. Cas.
11,949, leaving question whether there was a total loss to jury; Washburn
v. Insurance Co., 82 Fed. 297, holding underwriters not lilible for con-
structive total loss; Poole v. Insurance Co., 14 Conn. 60, holding insurers
liable if goods cannot reach port of destination; Brooke v. Insurance Co.,
^ WELCH V. MANDE VILLE. 1 Wheat. 233-237
f Ifart. (La.) (N. S.) 641, 642, 646, holding insurers liable only for total
W; Brooke v. Insurance Co., 5 Mart. (La.) (N. S.) 536, 541, excluding
constructive total loss; Aranzamendi v. Insurance Co., 2 La. 435, 436, 22
^ Dec. 139, 140, Skinner v. Insurance Co., 19 La. 276, and Gould v.
^flsnrance Co., 20 La. Ann. 261, all holding insured cannot recover for
^cmoTandmn articles unless there has been total loss; as also in Wads-
^orth V. Insurance Co., 4 Wend. 40, to same effect; Wallerstein v. Insur-
ance Co., '44 N. Y. 219, 220, 221, 4 Am. Rep. 668, 669, 671, allowing re-
covery ^w^here there was a total loss of value; Chadsey v. Guion, 97 N. Y.
33/, 338, and Wain v. Thompson, 9 Serg. & R. 120, 11 Am. Dec. 677, fol-
lowing- rule; Woodside v. Insurance Co., 84 Fed. 284, Hernandez v. Insur-
ance Co., 6 Blatchf. 324, Fed. Cas. 6415, Mayo v. Insurance Co.,. 152 Mass.
175, 28 Am. St. Rep. 817, 25 N. E. 81, arguendo.
Wstingruiahed in Pearse v. Steamship Co., 24 Fed. 287, refusing to apply
rule to common carriers ; Heebner v. Insurance Co., 10 Gray, 136, 69 Am.
Dec. 310, holding it is only applicable to memorandum articles.
1 Wlieat;. 233-237, 4 I*. Ed. 79, WELCH v. HANDBVILLE.
•^^JMignnment of choses In action are Talid at conmioii law, and assignee
CM* Bae in name of assignor.
-Approved in Gleason v. Northwestern Mut. Life Ins. Co., 203 N. Y. 615,
9' N". E. 38, right of assignee of insurance policy to sue thereon in New
York Hot barred by judgment in foreign State determining invalidity of
assign jjfj^n^^ assignee not being party; Brush Electric Co. v. California etc.
Co., 52 Fed. 960, 7 U. S. App. 409, holding licensee of patent can join
"Censor as party plaintiff; Buckner v. Greenwood, 6 Ark. 206, holding,
^der statute, assignee can sue in his own name; Price v. l^radford, 6 Ga.
7"^ ; Robinson v. Schley, 6 Ga. 523, holding assignee of judgment may sue
^"^ ^ame of plaintiff; Blackerby v. Holton, 5 Dana (Ky.), 522, holding
f^^^ty ^\l enforce an assignment as a trust ; Pitts v. Holmes, 10 Cush. 96,
^^ditig assignee of chose in action can sue in name of assignor with his
<^.onsent ; Scott v. Metcalf , 13 Smedes & M. 567, declaring that at law as-
^^*^^e was forced to sue in name of assignor; also Anderson v. Williams,
7^ -Mliss. 686, holding party with equitably title must sue in name of one
*^ni^ legal title; Belton v. Gibbon, 12 N. J. L. 77, holding assignee may
°^. i^ name of assignor; Davenport v. Elizabeth, 43 N. J. L, 151, holding
^*^Ti^e suing in name of assignor, liable for costs; Otis v. Adams, 66
»• ^* X. 40, 27 Atl. 1093, holding statute does not make assignable a part
J^ «L chose in action, so assignee of such part can sue in his own name, at
^ ^; Melick v. Melick, 17 N. J. Eq. 159, allowing party beneficially inter-
^0ted to conduct suit in name of executor; Freund v. Bank, 76 N. Y. 356,
tiolding, under code, if assignee acquires the whole interest he may sue in
his own name ; Green v. Insurance Co., 84 N. Y. 575, holding real plaintiff
could sue on judgment recovered in name of assignor; Rollison v. Hope, 18
Tex. 451, holding if debtor have notice of assignment and promises to pay
assignee, latter may sue in his own name; Cronin v. Patrick Co., 89 Fpd.
83, involving negotiability of county bonds.
1 Wheat. 233-237
NOTES ON U. S. REPORTS.
712
Distinguished in Karrick v. Wetmore, 22 App. D. C. 493, action brought
in name of assignor after his death is nullity.
Nominal plaintiff rain^ for his assignee cannot by coUiuiye dimnlmMU of
suit bar subsequent suit for same cause of action.
Approved in St. Albans Granite Co. v. Elwell & Co., 88 Vt. 482, 92 Atl.
976, coiTporation suing for benefit of creditors could not abate action by
dissolution ; Tate v. Bank, 96 Va. 770, 32 S. E, 478, holding ^wrhere after
holder of note had given it to bank as t^ecurity, he gave plaintiff order en-
titling him to note when paid, and pending action on note debt was paid
and suit dismissed, such dismissal did not bar action by. plaintiffs against
indorser; Mandeville v. Welch, 5 Wheat. 283, 5 L. Ed. 90, following rule;
Cronin v. Patrick Co., 4 Hughes, 632, 89 Fed. 83, holding assignee of bond
takes subject to equities; Hazelton v. Railway Co., 72 Fed. 328, allowing
purchaser of contract being sued on, to have benefit of previous proceed-
ings; Wagner v. National etc. Ins. Co., 90 Fed. 402, collecting authorities,
allowing plea of fraudulent dismissal to be set up in replication ; Brown v.
Insurance Co., 4 Fed. Cas. 382, holding judgment should be rendered on
verdict, though as against nominal plaintiff action is barred; Chisolm v.
Newton, 1 Ala. 372, rejecting evidence of admissions pf nominal plaintiff;
Cunningham v. Carpenter, 10 Ala. 112, permission of partner to dismiss
his unascertained interest, amounts to nothing; Chapman v. Shattuck, 3
Gilm. 52, holding any compromise, between original parties after notice
of assignment, is void; Hackett v. Martin, 8 Me. 80, after assignment, no
subsequent act of assignor can control; as also Matthews v. Houghton, 10
Me. 421, to the same effect; Whiting v. Insurance Co., 15 Md. 315, holding
payment of debt by stranger, without debtor's consent, will not discharge
him; Anderson v. Miller, 7 Smedes & M. 590, holding nominal plaintiff
cannot discharge an action; Cameron v. Little, 13 N. H. 26, holding as-
signor cannot discontinue action brought in his name; Sloan v. Sommers,
14 N. J. L. 512, not permitting nominal plaintiff to release action; Wilson
V. Stillwell, 14 Ohio St. 471, holding surety by agreement with nominal
plaintiff, cannot obtain satisfaction of judgment, without payment in full ;
GauUagher v. Caldwell, 22 Pa. St. 302, 60 Am. Dec. 85, upholding release
obtained from nominal plaintiff, defendant having no notice of the assign-
ment; McFadin v. McGreal, 25 Tex. 80, holding no recovery Can be had
against nominal plaintiff; Strong v. Strong, 2 Aikens, 378, holding nominal
plaintiff cannot fraudulently discharge suit.
Distinguished in Kansas City v. Morgan, 76 Fed. 435, 47 U. S. App. 1,
holding judgment obtained fraudulently by plaintiff's father, could not be
collaterally attacked ; Koch v. Lyon, 82 Mich. 516, 46 N. W. 780, admitting
declaration of assignor made after assignment which was not for value.
Character and kinds of judgments and orders not collaterally assail-
able for fraud not affecting jurisdiction. Note, 36 L. B. A. (N. S.)
984.
Courts of law afford assignments every protection.
Cited in Lamkin v. Phillips, 9 Port. 102, applying equitable principles
to assignments; Walters v. Whitlock, 9 Fla. 102, 76 Am. Dec. 613, holding
723
NOTES ON U. S. REPORTS. 1 Wheat. 238-278
Ma will recognize an assignment for benefit of creditors, if valid in
•^tate where made; Pass v. McRea, 36 Miss. 149, that court of law will
P^tect interest of assigned; Andrews v. Bank, 77 Md. 28, 26 Atl. 917,
^oldijig no appeal lies from denial of motion of equitable defendant to
^^nke o^t order of dismissal.
-Ifiscellaneous. Cited in following cases, referring more specifically to
««4ie case in 5 Wheat. 277, 5 L. Ed. 87, Palmer v. Merrill, 6 Cush. 287, 52
^. JDec. 785, James v. Newton, 142 Mass. 376, 56 Am. Rep. 698, 8 N. E.
^^, and Morton v. Naylor, 1 Hill, 585. Cited erroneously in Hudson v.
^ehr, 29 Ala. 299.'
^ ^'^eae. 238-261, 4 I.. Ed. 80, L'lNVINOIBI^.
OoQx^ts of capturing pow«r have ezcluslTd cognizance of prize questloni.
CitedL in Hallett v. Lamothe, 3 Murph. (N. C.) 297.
I^istlrxguished in The Estrella, 4 Wheat. 307, 4 L. Ed. 577, holding where
captixre is brought infra praesidia of a neutral power, that power has right
to inqiiixe if its neutrality has been violated; as also in The Santissima
Tnniaa.^, 7 Wheat. 351, 5 L. Ed. 471 ; to the same effect. In re Fassett, 142
^- ^- 4:35, 35 L. Ed. 1089, 12 Sup. a. 298. /
_ violent dlspOBsesslon of property on the ocean Is prima fade a
^^'^^^oi.^ tort and a sabject of admiralty Jurisdiction.
pte^ in N. J. Nav. Co. v. Bank, 6 How. 432, 12 L. Ed. 503, holding ad-
^■^"^^y has jurisdiction of action against carrier for goods, where vessel
^^ tiirned in port; In re Fassett, 142 U. S. 486, 35 L. Ed. 1089, 12 Sup.
K S?^' holding subject matter of the libel was a marine tort, cognizable
^y *^istrict Court; Sloop Martha Anne, 01c. 21, Fed. Cas. 9146, holding
-,?.^^t;ion of vessel for executing such process was a maritime tort; Schooner
^"^^^, 6 Mason, 471, Fed. Cas. 14,054, arguendo.
"^"Ujisdiction and powers of consuls. Note, 45 L. B. A. 496.
iu^it ^^f^Uaneous. Cited in Ship Adolph, 1 Curt. 89, Fed. Cas. 86, to point
^^reign consul can petition court to have proceeds paid into registry
IB ufet^ his countrymen were interested in property sold for salvage ; Taylor
^ "^Tigham, 3 Woods, 379, Fed. Cas. 13,781, to the point that owners of ship
^fC liable for misconduct of master and crew*
1 Wlieat. 261-278, 4 L. Ed. 86, THE EDWABD.
The Circuit Court may on appeal allow an Information to be amended.
Approved in The Sarah, 8 Wheat. 397, 5 L. Ed. 645, Garland v. Davis,
4 How. 154, 11 L. Ed. 918, New Jersey L. N. Co. v. Bank, 6 How. 434, 12
I» Ed. 504, Richmond v. Copper Co., 2 Low. 317, Fed. Cas. 11,800, ArJbny-
mous, 1 Gall. 22, Fed. Cas. 444, Folger v. Robert G. Shaw, 2 Wood & M.
540, Fed. Cas. 4899, Walsh v. United States, 3 Wood. & M. 348, Fed. Cas.
17,116, The Meteor, 17 Fed. Cas. 184, United States v. Three Hundred and
Ninety-six Barrels, 28 Fed. Cas. 122, Graham v. Oregon etc. Nav. Co., 134
Fed. 693, all following rule ; Davis v. Adams, 102 Fed. 525, allowing amend-
X
1 Wheat. 279-298
NOTES ON U. S. REPORTS.
714
luent of libel to conform to proofs, and changing nature of action from tort
to contract.
1 ^Wlieat. 279^291, 4 L. Ed. 91, MUTUAL ASSURANCE SOCIETY v. WATTS.
Federal courts will conform their decisions to those of State courts on the
local laws.
Approved in Derby v. Jacques, 1 Cliff. 439, Fed. Cas. 3817, holding that
judgment in writ of right recovered in State court after writ was abolished
by statute not bar to writ ir/ Federal coui:t; Mitchell v. Lippincott, 2
Woods, 473, Fed. Cas. 9666, holding Federal court bound by later decisions
of State courts ; Prentice v. Zane, 19 Fed, Cas. 1271, following state court's
construction of State statute; Bloodgood v. Grasey, 31 Ala. 589, holding
decision of Stafe court to be authoritative exposition of its statutes; Yonley
V. Lavender, 27 Ark. 264, holding that one having judgment in Federal
^ court against administrator is relmitted to court of probate to receive pro
rata ; Hiller v. Shattuck, 1 Flipp. 274, Fed. Cas. 6504, conforming to local
land law.
Virginia statute as to assessments in mutual insurance comps^nj construed.
J Distinguished in Mutual Asfeur. Soc. v. Faxon, 6 Wheat. 606, 5 L. £d.
342, a case under the same statute.
Liability of members of mutual fire insurance companies. Note, 82
L. B. A. 483.
1 Wheat. 292-298, 4 Ii. Ed. 94, WAIiDEK v. QBATZ.
^ Statute of limitations as to adverse possession once started does not stop
by reason of subsequent disabilities.
' Approved in Davis v. Coblens, 174 U. S. 725, 43 L. Ed. 1149, 19 Sup.
Ct. 835, holding limitations on plaintiff's action conmienced on death of
mother, and mother died more than ten years after accrual of action;
Streeter Co. v. Frederickson, 11 N. D. 303, 91 N. W. 694, quieting title
in plaintiff under Laws 1899, chapter 158, where defendants, imder void
deed, had possession for eight years; Gibson v. Ruff, 8 App. D. C. 268,
contest over will does not toll statute in suit against executor for debt on
which statute began to run during decedent's lifetime; Harris v. McGovem,
99 U. S. 168, 25 L. Ed. 319, affirming 2 Sawy. 518, Fed. Cas. 6125; Mc-
Donald V. Hovey, 110 U. S. 623, 28 L. Ed. 270, 4 Sup. Ct. 143 ; Bauserman
V. Blunt, 147 U. S. 657, 37 L, Ed. 320, 13 Sup. Ct. 470, and Doe ex dem.
Caldwell v. Thorp, 8 Ala. 258, 260, all following rule; Wyn v. Lee, 5 Ga.
227, holding removal of defendant from State does not stop statute; Ken-
dal V. Slaughter, 1 A. K. Marsh. 380, construing act giving feme covert
three years after disability removed, not to apply unless ^he were covert
when right accrued; dissenting opinion in South v. Thomas, 7 T. B. Mon.
73, 86, 87, majority holding on casting descent upon minors, statute ceases
running; De Mill v. Moffat, 49 Mich. 130, 13 N. W. 389, holding statute in
ejectment not 'arrested by devolution of estate; Gilman v. Cutts, 23 N. H.
382, holding, under statute, statute ceases to run during absence from the
Bh..
715 NOTES ON U. S. REPORTS. 1 Wheat. 298-504
State; De Kay v. Darrah, 14 N. J. L. 294, holding death does not suspend
the statute; Clarke v. Cross, 2 R. I. 449, holding disabilities must exist at
eommencement of the adverse possession; Faysoux ▼. Prather, 1 Nott &
McC. 300, 302, 9 Am. Dec. 694, 696, holding subsequent disability does not
stop statute; McAuliff v. Parker, 10 Wash.a46, 38 Pao. 746, holding subse-
quent death of party will not stop statute.
Interruption of statute of limitations by infancy of successor to
original owner's interest. Note, 3 B. R. 0. 746.
TTtader champerty act of Kentucky, deed will pass title to land notwith-
standing adverse possession.
Cited in Conn's Heirs v. Manif ee, 2 A. K. Marsh. 398, 12 Am. Dec. 420,
following rule; Aldridge ▼. Kincaid, 2 Litt. (Ky.) 394, holding after-
acquired) title inures to the use of vendee; Jackson v. Winn, 4 Litt. (Ky.)
326^ holding legislature has power to change mode of conveyancing land.
£ffect of conveyance of land held adversely. Note, 85 L. B. A. (N. S.)
760.
Right of grantee of land held in adverse possession to sue to recover
same from adverse holder. Note, Ann. Oaa. 1915D, 527.
1 Wheat. 296-300, 4 L. Ed. 96, THE HABBISON.
If national character of property is ambiguous, and no dalm made, Ibial
condemnation postponed for year and day, when property condemned to cap-
ton if no claimant appears.
Approved in The Carlos F. Roses, 177 XT. S. 663, 44 L. Ed. 932, 20 Sup.
Ct. 806, determining ownership of cargo on enemy's vessel; Read v. Mar-
tin, 9 Port. 185, holding one interested may come within a year from
time of decree rendered in admiralty by default, and be admitted to defend
on condition.
Distinguished in The Falcon, Blatchf. Pr. 64, Fed. Cas. 616, where there
was no ambiguity as to nationality of vessel.
Supreme Court has no original Jurisdiction in prise cases, and claim can-
not he interposed there for the first time.
Cited in The William Bagaley, 6 Wall. 412, 18 L. Ed. 591, following rule.
Miscellaneous. Cited incidentally in dissenting opinion in Ferris ▼•
Coover, 11 Cal. 182.
1 Wheat. 300-304, 4 L. Ed. 96, HABDEN .T. FISHER^
Where etiiWTigi of q»eclal verdict are insol&cient^ ai^ellate court Is unable
to give judgment for either party.
Approved in Saltonstall v. Birtwell, 150 U. S. 420, 87 L. Ed. 1129, 14
Sup. Ct. 170, following rule.
What special verdict must contain. Note, 24 L. R. A. (N.^ S.) 19.
To avail themselves of protection of treaty, parties most show that title
to land was in' tiiem or their ancestors at time treaty made.
1 Wheat. 304-382
NOTES ON U. S. REPORTS.
716
Approved in Orr v. Hodgson, 4 Wheat. 464, 4 L. Ed. 616, holding party's
title confirmed free from taint of alienage; Hughes v. Edwards, 9 Wheat.
496, 6 L. Ed. 144, holding alien mortgagee may maintain hill for sale of
land ; Orser v. Hoag, 3 Hill, 85, holding no claim to lands can he established
in virtue of a treaty where claimant's ancestor died before treaty was
signed^ Munro v. Merchant, 28 N^ Y. 36, holding an ante-natus could
inherit from an alien father by virtue of treaties; Pollard v. Kibbe, 14
Pet. 413, 10 L. Ed. 619, arguendo.
Effect of treaties on alien's right to inherit. Note, S2 L. B. A. 180.
/
1 Wheat. 304-382, 4 L. Ed. 97, liABTIN ▼. HUNTER.
United States has only those powers given by the Comrtitatioii.
Approved in Ex parte Ortiz, 100 Fed. 958, following rule; State of
Kansas v. State of Colorado, 206 U. S. 87, 51 L. Ed. 970, 27 Sup. Ct. 655,
denying right of United States to intervene to control State waters except
to improve navigability of streams; Burton v. United States, 202 U. S.
366, 50 L. Ed. 1065, 26 Sup. Ct. 688, upholding Rev. Stats., § 1782, mak-
ing it misdemeanor for senator to receive or agree to receive compensation
for services rendered before any departi^ent in relation to proceedings in
which United States is interested ; Southern Ry. Co. v. Greensboro Ice & Coal
Co., 134 Fed. 92, order of State corporation commission to place carloads of
coal shipped from one State to another on certain track for unloading, as
requested by consignee, is void; People v. Brady, 271 111. 106, 110 N. E.
867, Federal Reserve Act, § Ilk, granting to national banks right to act as
trustees, executors, etc., is void ; Morrison v. State, 116 Tenn. 542, 95 S. W.
495, upholding statute requiring separating white and colored persons on
street-cars; United States v. United States Fidelity & Guaranty Co., 80
Vt. 95, 66 Atl. 813, upholding act amendatory to act providing for con-
tractor's bond for government work giving remedy to creditors in Federal
courts; dissenting opinion in Downes v. Bidwell, 182 U. S. 379, 45 L. Ed.
1142, 21 Sup. Ct. 787, majority holding that limitations in Constitution are
addressed only to States; United States v. Harris, 106 U. S. 636, 27 L. Ed.
292, 1 Sup. Ct. 606, holding statute passed without constitutional authority
invalid ; In re Barry, 136 U. S. 605, 34 L. Ed. 606, 42 Fed. 119, Fed. Cas. 1059,
holding District Court without common-law jurisdiction; United States v.
Boyer, 85 Fed. 429, holding law for inspection of slaughter-houses unconstitu-
tional; In re Klein, 14 Fed. Cas. 723, declaring bankrupt act discharging
debtor from debts contracted before its passage unconstitutional; Russell
V. Forty Bales Cotton, 21 Fed. Cas. 44, holding United States not entitled
to derelict as against salvors; Hawkins v. Filkins, 24 Ark. 300, declaring
United States derives its authority from the Constitution; Beavins' Peti-
tion, 33 N. H. 94, holding Congress has exclusive jurisdiction of naturaliza-
tion; Draper v. Gorman, 8 Leigh (Va.), 633, holding Congress has no power
to mal^ judgment of District of Columbia a domestic judgment; In re
Booth, 3 Wis. 125, holding fugitive slave law unconstitutional; In re
Booth V. Rycraft, 3 Wis. 194, in exercising delegated power Federal courts
Wi
717 MARTIN v. HUNTER. 1 Wheat. 304-382
^^t affirmatively show jurisdiction; The Martha Washington, 3 Ware,
^1| Fed. Cas. 9148, ai^endo.
Iiegislatlon is necessary to enable Federal courts to exerdse powers given
"^ the Constitution.
^ited in dissenting opinion in Ex parte Crane, 6 Pet. 202, 8 L. Ed. 97,
^^Jority holding this court could, by mandamus, force circuit judge to
j^ bill of exceptions; Rhode Island v. Massachusetts, 12 Pet. 721, 9
5d. 1269, holding, under act, this court has jurisdiction of boundary
i^^'ions. States being parties; dissenting opinion in Prigg v. Pennsyl-
/>^*^**' 16 Pet. 665, 669, 10 L. Ed. 1107, 1109, majority holding law concem-
^o ^^^^ition of slaves unconstitutional ; State Lottery Co. v. Fitzpatrick, 3
TQ^ °^> 240, Fed. Cas. 8541, and Baker v. Biddle, 1 Bald, 403, 406, Fed. Cas.^
^ folding jurisdiction of court enlarged by congressional act; United
:c% V. New Bedford Bridge Co., 1 Wood. & M. 455, Fed. Cas. 15,867,
\\o\ding the Circuit Court has no power to punish crime unless authorized
^y some law or treaty; Citizens' Ry. Co. v. Railway Co., 56 Fed. 747, hold-
ing Circuit Court, under act of Congress, had jurisdiction of alleged im-
pairment or contract; Shearman v. Bingham, 3 Cliff. 560, Fed. Cas. 12,762,
holding Congress cannot confer jurisdiction on State courts, which belongs
to Federal courts ; Railway Co. v. Whitton, 13 Wall. 288, 20 L. Ed. 577, and
Insurance Co. v. Dunn, 19 Wall. 227, 22 L. Ed. 70, arguendo.
Constltation was established by the people.
Approved in State of Kansas v. State of Colorado, 206 IT. S. 81, 51 L. Ed.
968, 27 Sup. Ct. 655, denying right of United States to intervene and con-
trol waters within limits of State except to preserve and improve their
navigability; dissenting opinion in Downes v. Bidwell, 182 U. S. 376,
45 L. Ed. 1140, 21 Sup. Ct. 821, majority holding that constitutional limita-
tions apply only to States; dissenting opinion in Coyle v. Smith, 28 Okl.
219, 220, 113 Pac. 983, 984, majority holding void provision of enabling act
prohibiting removal of capital of State for certain period; George v. Con-
cord, 45 N. H. 438, 440, and Meti?opolitan Bank v. Van Dyck, 27 N. Y. 409,
holding act making treasury notes legal tender, valid; also in United
States V. Cathcart, 1 Bond, 561, Fed. Cas. 14,756.
Denied in Mims v. Wimberly, 33 Ga. 589, holding contra.
Constitution deals in general language, leaving to the legidature to adopt
its own means of carrying out its powers.
Approved' in Snead v. Central of Georgia Ry. Co., 151 Fed. 619, if cor-
porations engage in interstate commerce, its members become amenable to
acts of Congress regulating same; Legal Tender Cases, 12 Wall. 532, 20
L Ed. 306, discussing power of Congress; see dissenting opinions, 12
Wall 626, 664, 20 L. Ed. 336, 349 ; Lick v. Faulkner, 25 Cal. 419 ; Thayer
V. ifedges, 23 Ind. 146, and ShoUenberg v. Brinton, 52 Pa. St. 59, holding
Congreas may make treasury notes legal tender; Ex parte Henderson, 6
^/o. 293, 295, holding appeals may be taken from Justice's Court to Cir-
Cttit Court, and tried by latter agreeably to the Constitution; Lafayette
Co. V. Oeigler, 34 Ind. 212, holding l^slature can pass^ any law not on
1 ^Tieat. 304-382
NOTES ON U. S. REPORTS.
718
subject delegated to Federal government or prohibited by State Constitu-
tion; Bank v. Van Dyck, 27 N. Y. 415, holding act making treasury notes
legal tender, valid.
Constitution should have a reasonable construction.
Approved in Fairbank v. United States, 181 U. S. 307, 45 L. Ed. 872,
2J Sup. Ct. 668, denying validity of stamp tax on foreign bill of lading;
Hill V. Tohill, 225 111. 392, 8 Ann. Oaa. 428, 80 N. E. 256, statute relating
to partition fences not unconstitutional as depriving complainant of prop-
erty without due process of law; L. N. Dantzler Lumber Co. v. State, 97
. Miss. 382, 53 South. 3, upholding statute authorizing sale of timber on
^school lands; Colton v. City of Montpelier, 71 Vt. 416, 45 Atl. 1040,
upholding Vt. Stats., § 365, authorizing towns to exempt manufacturing
establishments from taxation by vote; dissenting opinion in Railroad
Commrs. v. Market St. Ry. Co., 132 Cal. 686, 64 Pac. 1069, majority hold-
ing a street railroad is not a "transportation company" within Const., art.
XII, §22; dissenting opinion in Providence etc. SS. Co. v. Fall River,
183 Mass. 543, 67 N. E. 649, majority upholding Stats. 1900, p. 471, chap.
472, relating to railroad grade crossings; Knecdler v. Lane, 45 Pa. St. 313,
discussing power of Congress to raise armies; Louisville R. R. Co. v.
State, 8 Heisk. 788, construing provisions of statute as to railroad aid.
The following citing cases make Martin v. Hunter authority for the rule that
words in a statute are to be given their ordinary meaning; Schriefer v.
Wood, 5 Blatchf. 218, Fed. Cas. 12,481; Georgia v. Atkins, 1 Abb. (U. S.) 26,
Fed. Cas. 5350, and Parton v. Prang, 3 Cliff, 546, Fed. Cas. 10,784; Blue
Bird M. Co. v. Largey, 49 Fed. 290, following miner's interpretation of
mining terms; In re McDonaugh, 49 Fed. 360, holding "beer" not to be
a spirituous liquor; State v. Atkins, 35 Ga. 319, holding "corporation"
in revenue act does not include a State; State v. Clarkville, 2 Sneed
(Tenn.), 91, arguendo. »
Congress cannot vest Judicial power in tribunals not organized by itself.
Approved in Minneapolis etc. R. R. Co. v. Bombolis, 241 U. S. 221, Ann.
Oaa. 1916E, 505, 60 L. Ed. 965, 36 Sup. Ct. 595, requirement of seventh
amendment for jury trial does not control State courts when enforcing
rights under Federal statute, and verdict by less than unanimous jury
according to State practice is not unconstitutional; Hoxie v. New York
etc. R. Co., 82 Conn. 366, 17 Ann. Gas. 324, 73 Atl. 760, Congress cannot re-
quire State court to entertain action authorized by Federal fellow-servant
act; The British Prisoners, 1 Wood. & M. 70, Fed. Cas. 12,734, holding
prisoners charged with piracy on British vessel may be examined by State
officers, though latter cannot be compelled to do it by United States;
United States v. Ames, 1 Wood, & M. 71, 89, Fed. Cas. 14,441, holding
any arrangement by officer of United States to refer a claim to arbitra-
tion is not binding; Ex parte Knowles, 5 Cal. 301, holding Congress cannot
confer judicial power on State court; as also in Ely v. Peck, 7 Conn. 243,
Davison v. Champlin, 7 Conn. 248, and Peck v. Jenness, 16 N. H. 534, 43
Am. Dec. 581, to^the same effect; Beavins' Petition, 33 N. H. 91, 92, hold-
L
/
^ MARTIN V. HUNTER. 1 Wheat. 304-382
^^g law prohibiting State courts from exercising jurisdiction conferred by
Congress, constitutional ; Rushworth v. Judges, 68 N. J. L. 99, 32 Atl. 744,
^cclaHng that Congress cannot interfere with State courtis; United States
. • ^athrop, 17 Johns. 6, 8, limiting judicial power to courts established
y Congress; and see pp. 15, 19, dissenting opinion in same case; State
• Hoskins, 77 N. C. 541, holding act of Congress authorizing removal of
^^taitx criminal cases, constitutional; dissenting opinion in Ex parte
^/^^hxiell, 9 Ohio St. 252, majority holding constitutional an act of Con-
jj-j^^® 'Vesting judicial power in commissioners; Huber v. Reily, 53 Pa. St.
2> * Congress cannot empower an election board to enforce a penalty;
ff^ "^'o:^ V. Price, 4 R. I. 357, holding exercise of judicial power prohibited
ii<**^^^eral assembly; In re Booth, 3 Wis. 53, 65, holding unconstitutional
XXfc ^^^ving commissioners judicial power; National Bank v. Eyre, 52 Iowa,
-V3 ^ ^ N. W. 996, and Huntington v. Attrill, 146 U. S. 672, 36 L. Ed. 1129,
|-^^:p. Ct. 229, arguendo,
gTe^ ^^^iiguished in Levin v. United States, 128 Fed. 828, 829, holding Con-
^^ ^ ^tnay empower State courts to admit qualified aliens to citizenship ;
^V ^^tlon V. Baldwin, 165 U. S. 278, 41 L. Ed. 716, 17. Sup. Ct. 327, hold-
\^ ^ *Xat power to arrest deserting seaman is not judicial power, and may
^^ferred upon State oflScers.
Judicial power of Federal courts is in tome cases exclusive, and in aUi
oibers may be made so.
Approved in Steinfeld ▼. Zeckendorf, 239 U. S. 28, 60 L. Ed. 128, 36
Sup. Ct. 14, Supreme Court will not consider provisions in judgment of
State court entered on mandate of said Supreme Court on nonfederal mat-
ter; Pickett V. United States, 216 U. S. 459, 54 L. Ed. 568, 30 Sup. Ct.
/ ^65, Congress by enabling act, can transfer jurisdiction over crimes within
/ ^^ jurisdiction from territorial to Federal courts when State admitted to
Vhjon; Old Dominion Steamship- Co. v. Gilmore, 207 U. S. 404, 52 L. Ed.
^S9, 28 Sup. Ct. 133, State legislation giving damages for death applicable
^ <fea.th occurring on high seas due to collision between ships owned by
^v'^i-zeiis of same State; Zikos v. Oregon R. & N. Co., 179 Fed. 899, 900,
iP'^^-'<3ing jurisdiction of Federal court in action arising under Federal
^^^i^^o^rer's Liability Act; Northern Pac. Ry. Co. v. Pacific Coast Lumber
^ r^- -Assn., 165 Fed. 10, 91 C. C. A. 39, Federal cdurt has jurisdiction to
Ell'^^^^ schedule of rates involving over two thousand dollars; Anderson v.
g. ^^^^'fc, 101 Fed. 613, holding Federal judgment cannot be attacked in
^ ^^ «ourt by alleging that land is situated in another State and causing
lOl^?^ of marshal for attempting to execute such judgment; Wall v. Cox,
A '^^^d. 411, holding District Court has jurisdiction of suit by bankruptcy
■p, ^^^^ to set aside fraudulent transfer by bankrupt; In re Woodbury, 98
"^ ^37, holding Congress cannot impose execution of any part of bank-
r^^ ^^^ law upon State court; Kennerson v. Thames Towboat Co., 89 Conn.
^*^> Xj. R. A. 1916A, 436, 94 Atl. 375, State court has jurisdiction in tort
^^ ^^^X^ for death of person on high seas under Workmen's Compensation
^^^> In re Attachment of Spencer, McAr. & M. (D. C.) 453, service of
S^^X^oena issuing out of Federal court must conform with laws of United
1 Wheat. 304-382 NOTES ON U. S. REPORTS. 720
States aiid not t)£ State in which served; MonisvScarzoro-Moffitt Co. v.
Southern Express Co., 146 N. C. 172, 15 L. R. A. (N. S.) 986, 59 S. E. 669,
imposing reasonable fine on carrier for failure to settle claim for goods lost
does not violate Interstate Commerce Act; Missouri etc. Ry. Co. v. State,
29 Okl. 646, 119 Pac. 119, upholding construction of clause in Constitution
interpreting term * 'public facilities" to include union passenger deix)t;
Higgins V. Brown, 1 Okl. Cr. 48, 94 Pac. 709, indictment for murder com-
mitted in Indian territory cognizable in State court after State admitted;
Jackman v. Eau Claire Nat. Bank, 125 Wis. 481, 104 N. W. 103, upholdijig
jurisdiction of State courts over action by bankruptcy trustee to recover
value of property as preference; dissenting opinion in Coyle v. Smith, 28
Okl. 220, 113 Pac. 984, majority holding void provision of enabling act
prohibiting removal of capital of State for certain period; dissenting
opinion in 'Houston v. Moore, 5 Wheat. 49, 69, 5 L. Ed. 31, 35, majority
holding State laws providing penalties for militia refusing to obey Presi-
dent's call, and providing for their trial by State court-martial is con-
stitutional; The Moses Taylor, 4 Wall. 428, 18 L. Ed. 401, holding act
vesting exclusive jurisdiction of admiralty causes in District Courts, con-
stitutional; Claflin V. Houseman, 93 U. S. 137, 23 L. Ed. 838, holdin*?
assignee of bankrupt might sue in State court, no exclusive jurisdiction
having been given to Federal courts; The Glide, 167 U. S. 615, 42 L. Ed.
299, 17 Sup. Ct. 933, holding enforcement of lien in rem is exclusively in
admiralty; The Isabella, Brown Adm. 98, Fed. Cas. 7100, to same effect;
Sherman v. Bingham, 3 Cliff. 560, Fed. Cas. 12,762, declaring Federal
courts had exclusive jurisdiction under bankrupt act; Steams v. United
Statd^, 2 Paine, 303, Fed. Cas. 13,341, holding State courts have no juris-
diction of offenses against the United States; The Wave, Blatchf. & H.
251, Fed. Cas. 17,297, holding admiralty has jurisdiction of suits for
pilotage; Ex parte Houghton, 7 Fed. 658, 8 Fed. 898, holding State court
has no jurisdiction of offense of passing counterfeit bank bills; Cadle v.
Tracy, 11 Blatchf. 113, Fed. Cas. 2279, holding State court had ho juris-
diction of suit against a corporation created by Congress; Mabry v. Hem-
don, 8 Ala. 861, holding State court, unless prohibited by law, may inquire
into a discharge in bankruptcy; Ex parte Hill v. Confederate States, 38
Ala. 450, holding State court cannot discharge conscript where Congress
gave right to a board; dissenting opinion in Ex parte Hill v. Confederate
States, 38 Ala. 477, majority holding State court could discharge enrolled
conscript from custody of Confederate officer; Rison v. Powell, 28 Ark.
435, holding State court can inquire into conveyance fraudulently made
prior to bankruptcy; Wilcox v. Luco, 118 Cal. 642, 62 Am. St. Rep. 306,
60 Pac. 759, holding State courts have concurrent jurisdiction in cases
affecting consuls; Rodney v. Illinois C. R. Co., 19 111. 45, holding remedy
as to fugitive slave law is for Federal courts ; Bnrson v. Bank, 40 Ind. 183,
13 Am. Rep. 298, order removing case from State court stops action there;
Ex parte Holman, 28 Iowa, 96, 4 Am. Rep. 162, holding State court may
issue habeas corpus where army officer detains party; Marshall v. Curtis,
5 Bush (Ky.), 611, holding State cannot enforce a maritime lien in rem;
Copp v. Railroad Co., 43 La. Ann. 514, 26 Am. St. Bep. 200, 9 South. 441,
V
721 MARTIN v. HUNTER. 1 Wheat. 304-382
holding action for damages for violation of Interstate Commerce Act cannot
be maintained in State court; People v. Fonda, 62 Mich. 407, 29 1(. W. 29,
' holding State court had no jurisdiction where national bank clerk em-
bezzled funds, it being expitessly excluded; Reynolds v. Steamboat Favor-
ite, 10 Minn. 248, holding jurisdiction is concurrent unless made exclusive
by Congress; Fitzgerald v. Fitzgerald etc., 41 Neb. 468, 59 N. W. "864,
folding Federal courts have exclusive jurisdiction to adjust interstate com-
merce xates; State v. Pike, 15 N. H. 85, holding State courts have no juris-
diction of offense of perjury under Federal statutes; Delafield v. Illinois,,
2 "Uill, '166, 168, 169, Federal courts have not exclusive jurisdiction of suit
by State against citizen of another; People v. Welch, 141 N. Y. 272, 38
;. Bep. 796, 36 N. E. 329, the intention to exclude must be manifest;
^. McVay, 31 Ohio St. 237, holding penalty given by Federal act, if
no-t i>i-ovided otherwise, is enforceable in State court; State v. McBride,
^^ce, 414, holding act giving State court jurisdiction of crimes against
*^^it^<3 States, unconstitutional ; also in State v. Davis, 12 S. C. 544, 553,
^s«ii:icie effect; Stone v. Edwards, 35 Tex. 558, holding Federal jurisdiction
«xelxxs.ive as to patents; Jett.'s Case, 18 Gratt. 961, declaring intent to
exelrxcie must be manifest; In re Tarble, 25 Wis. 406, 3 Am. Rep. 95, hold-
^^S ■S'tate court may inquire into detention of person by military officer;
ui&sc5:r^ting opinion in Whiton v. Railway Co., 25 Wis. 435, majority hold-
^^gr ixrivalid an act permitting citizen of one State commencing action in
coL».x-"t of another against a citizen thereof to remove it to Federal court;
Ua-itcsi^ States v. Bainbridge, 1 Mason, 86, Fed. Cas. 14,497, United States
V. >T^-Hr Bedford Bridge, 1 Wood. & M. 501, Fed. Cas. 15,867, and McCor-
nii<5k: V. Humphrey, 27 Ind. 150, arguendo.
XZ>x^tinguished in Holmes v. Jennison, 14 Pet. 593, 594, 10 L. Ed. 605,
hol<iixig Governor may exercise power in respect to fugitives from justice,
whi^arc president docs not; Ex parte Geisler, 4 Woods, 383, 50 Fed. 412,
wlx^i-^ Congress expressly reserved jurisdiction of State courts; Keating v.
SpinJk, 3 Ohio St. 117, 62 Am. Dec. 224, holding State can invest its courts
"^^"^^ jurisdiction of cases over which admiralty and common law had con-
jurisdiction.
Ooiogrees may authorize removal ftom State courtB before or after jadg-
^^^ti, cuid regdUte the method.
-^I>r>x-oved in Teniiessee v. Davis, 100 U. S. 269, 270, 291, 295, 25 L. Ed.
w2, 661, holding criminal case may be so removed; Murray v. Patrie, 5
Blatch :f . 345^ Ted. Cas. 9967, holding cause may be removed before or after
indgrrfc^nt; Johnson v. Monell, Woolw. 395, Fed. Cas. 7399, holding cause
^^y l>^ removed any time up to trial; Tod v. Court of Common Pleas, 15
^flio St. 387, holding constitutional, act providing for removal from State
cfyart^ of suits instituted for acts done under authority of President during
/^^ellioix; Fisk V. Railroad, 6 Blatchf. 367, 370, Fed. Cas. 4827, and Harri-
^7^- Uadley, 2 Dill. 235, Fed. Cas. 6137, arguendo.
J. . ""^^"^iiiguished in State v. Mayor, 35 La. An§. 411, where lower court did
J '-•^my jurisdiction of higher court, but x^onformed its actionii to their
L6
1 Wheat. 304-382 NOTES ON U. S. REPORTS. 722
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 860.
Judicial power of Federal courts is to be exercised for benefit of defendants
BB well as plaintiffs.
Cited in State v. Cooeaw Min. Co., 45 Fed. 810, holding that a cdurt, in
ascertaining whether a case is removable, is not confined to the com-
plaint; dissenting opinion in Knorr v. Insurance Co., 25 Wis. 166, majority
holding insurance company accepting service in one State may remove
case brought by its citizen; Mayor y. Cooper, 6 Wall. 253, 18 L. Ed. 853,
arguendo.
A case is a question contested before a court.
Approved in United States v. Dolla, 177 Fed. 104, 100 C. C. A. 521, pro-
ceeding for naturalization not a "case"; State v. Riley, 203 Mo. 187, 12
L. R. A. (N. S.) 1903, 101 S. W. 569, a proceeding to incorporate a drain-
age district is civil suit within purview of change of venue act.
Distinguished in Ex parte Towles, 48 Tex. 433, holding an ex parte pro-
ceeding is not a case.
Oontemporaneous ezpositionfl and long acquiescence held to support the
doctrine that the Sijpreme Court's appellate jurisdiction extends to cases in
State courts.
Approved in State v. Carter, 174 Ala. 279, 56 South. 979, applying rule
to construction of act to establish inferior civil court in lieu of Justice *s
Court; State v. New Orleans Ry. & L. Co., 116 La. 148, 40 South. 598,
applying rule where under two similar Constitutions exempting manu-
facturers from license taxes, legislature for twenty years imposed license
taxes on electric companies; State v. Northern Pac. Ry. Co., 95 Minn. 47,
103 N. W. 732, foreign railroad paying taxes under gross earnings law is
not prevented by failure to list credits from deducting debts from such
credits; Henry v. State, 87 Miss. 57, 39 South. 871, upholding Rev. Code
1892, § 3201, providing for working convicts on farm leased for that pur-
pose ; In re Peterson's Estate, 22 N. D. 513, 134 N. W. 766, upholding stat-
ute vesting in District Court right to try de novo probate matters appealed
from County Court; Higgins v. Brown, 20 Okl. 371, 94 Pac. 709, upholding
jurisdiction of State court over murder case transferred thereto by Con-
gress when territory admitted to Union; State v. Nashville Baseball Club,
127 Tenn. 303, Ann. Oas. 1914B, 1243, 154 S. W. 1154, oral decision declar-
ing act prohibiting Sunday baseball games constitutional not stare decisis;
Ex parte Anderson, 46 Tex. Cr. 399, 81 S. ;W. 987, city court has no juris-
diction to try accused for alleged violation of State penal statute; Borgnis
V. Falk Co., 147 Wis. 372, 37 L. R. A. (N. S.) 489, 133 N.'W. 224, 3 N. C.
C. A. 696, upholding act cutting off defense of assumed risk and fellow-ser-
vant rule for failure to elect under Workmen's Compensation Act; dis-
senting opinion in State v. Smith, 158 Ind. 561, 63 N. E. 25, see 64 N. E.
18, majority upholding acts«1899, p. 422, authorizing deduction, for pur-
poses of taxation, of mortgage indebtedness not exceeding seven hundred
dollars, from assessed value of realty; dissenting opinion in Moulton v.
723 MARTIN v. HUNTER. 1 Wheat. 304^382
Scully, 111 Me. 471, 89 Atl. &63, majority holding referendum statute not
applicable to removal proceedings against sheriflE for misfeasance in office*,
Cooley V. Board of Wardens, 12 How. 315, 13 L. Ed. 1003, upholding State
law providing for f orf ieiture of half pilot fees by vessel neglecting to take
a pilot; dissenting opinion in Dred Scott v. Sandford, 19 How. 616, IB
Ii. Ed. 788, majority holding act forbidding master to take a slave to ter-
ritory,'unconstitutional; Cooper Mfg. Co. v. Fei^uson, 113 U. S. 733, 28
L. Ed. 1188, 5 Sup. Ct. 741, holding act passed by the first legislature, in
executing a constitutional power, is a contemporary exposition entitled to
much weight ; The Laura, 114 U. S. 416, 29 L. Ed. 148, 6 Sup. Ct. 883, hold-
ing that granting of remission of penalties by officers other than the Presi-
dent is not an invasion of pardoning power; Auffmordt v. Hedden, 137
U. S. 329, 34 L. Ed. 680, 11 Sup. Ct. 109, determining the conclusive effect
of appraisal of dutiable nlerchandise; Field v. Clark, 143 U. S. 691, 36
L. Ed. 809, 12 Sup. Ct. 504, deciding what power may be given President
to r^ulate duties; McElvain v. Mudd, 44 Ala. 54, 4 Am. Rep. 110, holding
act relating to fugitives from labor constitutional; Warner v. Steamer
Uncle Sam, 9 Cal. 723, 724, holding Supreme Court of United States has
appellate jurisdiction over State courts; Railway Co. v. Whiteneck, 8 Ind.
223, construing statute; Board of Commrs. v. Bunting, 111 Ind. 145, 12
N. E. 151, holding practical construction of statute is equivalent to positive
law, as also in State v. Harrison, 116 Ind. 308, 19 N. E. 150, Board of
Commrs. v. Gwin, 136 Ind. 572, 36 N. E. 240, Hovey v. State, 119 Ind. 388,
21 N. E. 890, to the same effect ; Parvin v. Wimberg, 130 Ind. 566, 30 Am.
St. Rep. 258, 30 N. E. 791, where meaning of statute was doubtful; dis-
senting opinion in Griswold v. Hepburn, 2 Duv. (Ky.)^5, majority holding
Congress cannot make treasury notes legal tender; Detroit City Ry. Co. v.
Mills, 85 Mich. 647, 48 N. W. 1009, Franklin v. Kelley, 2 Neb. 88, follow-
ing practical construction of statute; McPherson v. Secretary of State, 92
Mich. 383, 31 Am. St. Rep. 591, 52 N. W. 471, where statute was susceptible
of two constructions ; Metropolitan Bank v. Van Dyck, 27 N. Y. 427, hold-
ing Congress has power to make United States treasury notes legal tender ;
Talcott V. Pine Grove, 1 Flipp. 155; 156, Fed. Cas. 13,735, collecting? authori-
ties upholding act granting State aid to railroad; Simpson v. Willard, 14
S. C. 195, as to length of term of successor to dead justice; Railroad Co.
V. Hicks, 9 Baxt. 451, construing powers of legislature; Wills v. Allison, 4
Heisk. 391, as to power of Congress to make legal tender; dissenting opin-
ion in Trout v, Mather, 68 Vt. 354, 35 Atl. 329, construing "boatable
waters" ; Bridges v. Shallcross, 6 W. Va. 576, affirming general rule ; France
V. Connor, 3 Wyo. 463, 27 Pac. 576, constniing dower act ; Prigg v. Penn-
sylvania, 16 Pet. 621, 10 L. Ed. 1091, arguendo ; Ex parte Gist, 26 Ala. 164,
and Lafayette v. Jenners, 10 Ind. 82, following rule.
Distinguished in State v. Wrightson, 56 N. J. L. 209, 28 Atl. 65, holding
contemporaneous construction will not be allowed to abrogate the text.
Twenty-fifth section of Judiciary act, allowing writ of enof to State from
Federal Supreme Court la valid.
Approved in Cohens v. Virginia, 6 Wheat. 423, 5 L. Ed. 295, and Will-
iams V. BroSry, 102 U. S. 253, 26 L. Ed. 137, upholding right to issue writ
1 Wheat. 304-382 NOTES ON U. S. REPORTS. 724
of error to State Supreme Courf ; Tennessee v. Davis, 100 U. S. 262, 270,
25 L. Ed. 650^ 652, holding case of irevenue officer ^killing, in discharge of
duty, was removable ; In re Neagle, 135 U. S. 61, 34 L. Ed. 70, 10 Sup. Ct.
667, opinion re-reported, 14 Sawy. 303, 39 Fed. 848, affirming 14 Sawy. 254,
upholding Federal jurisdiction over a United States marshal charged with
killing another while protecting the person of a Federal Supreme .Court
justice; Wood v. Drake, 70 Fed. 883, holding action against marshal, for
false imprisonment, while executing Federal process, removable; In re
Waite, 81 Fed. 364, holding United States officer, performing duty, not
liable to criminal prosecution in State court j In re Thomas, 82 Fed. 310,
Governor of soldiers' home in Serving oleomargarine furnished by govern-
ment to inmates is not subject to State oleomargarine laws; Carter v.
Bennett, 5 Fla. 94, holding Supreme Court of United States has appel-
late jurisdiction over State courts in certain cases; International Bank of
Jenkins, 104 III. 150, allowing writ of error, on judgment on demurrer, to
plea of statute of limitations.
Distinguished in Holmes v. Jennison, 14 Pet. 624, 632, 10 L. Ed. 624,
630, holding court had no jurisdiction to revise decision of State court re-
manding prisoner on writ of habeas corpus; dissenting opinion in Tennes-
see V. Davis, 100 U. S. 286, 25 L. Ed. 658, majority holding case of reveniie
officer, killing in discharge of duty, removable; North Carolina v. Trustees
of University, 1 Hughes, 135, Fed. Cas. 10,318, holding, in case in which
original jurisdiction is conferred on Supreme Court because of the char-
acter of the parties, the judicial power of United States cannot be exer-
cised in its appellate form ; Commonwealth v. Casey, 12 Allen, 220, holding
case of one indicted under revenue laws not removable; State v. Trustees
etc., 65 N. C. 716, holding Circuit Court has no jurisdiction where State is
plaintiff against its own citizens.
Denied in Johnson v. Gordon, 4 Cal. 369, holding United States Supreme
Court has no appellate authority on State courts; dissenting opinion in
Pequa Bank v. Knoup, 6 Ohio St. 380, 387, majority holding Federal courts
have appellate jurisdiction over State courts in certain cases.
Removal of criminal caif^es into Federal courts from State or other
Federal courts. Note, 53 L. R. A. 571, 572.
Supreme Court has Jurisdiction, by writ of error to rerview State court
decision adverse to claim or title resting upon treaty.
Approved in Lytle v. Arkansas, 22 How. 203, 204, 16 L. Ed. 310, holding
Federal courts had jurisdiction where State court denied title acquired
under patent law; Claflin v. Houseman, 93 U. S. 141, 23 L. Ed. 840, de-
claring that State courts cannot take cognizance of constitutional ques-
tions; California Powder Works v. Davis, 151 U. S. 395, 38 L. Ed. 208,
14 Sup. Ct. 352, where State court upheld title arising under a treaty;
Whitten v. Tomlinson, 160 U. S. 238, 40 L. Ed. 411, 16 Sup. Ct. 300, hold-
ing Federal courts may issue habeas corpus to inquire inta imprisonment
by State in violation of Constitution or law of United States; Crystal
Springs etc. v. Los Angeles, 76 Fed. 152, holding fact that both parties
claim under a treaty does not confer jurisdiction; United States v. Ken-
dall, 5 Cr. C. C. 249, 250, Fed. Cas. 15,517, holding Circuit Court has juris-
725 MARTIN v. HUNGER. 1 Wheat. 304^-382 \
diction of cases arising under law or treaty if either party is a resident
of or found in their district ; Connor v. Scott, 4 Dill, 246, Fed. Cas. 3119,
holding case involving construction of bankruptcy act removable ; Stockton
V. Montgomery, Dall. (Tex.) 485, holding Supreme Court has power to
determine constitutionality of law; Ableman v. Booth, 11 Wis. 508, 619,
discussing appellete jurisdiction of Supreme Court of the United States;
Matthews v. Zane, 7 Wheat. 208, 5 L. Ed. 436, in note ; Fleming v. Clark,
12 Allen, 195, arguendo; dissenting opinion in Kendall v. United States,
12 Pet. 644, 9 L. Ed. 1228, majority upholding power of Circuit Court
to issue mandamus.
Administration of Federal laws in State courts. Note, 48 L. B. A.
S3, 34, 38, 39.
What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. B. A. 515, 532.
Questions considered by Federal Supreme Court in' reviewing judg-
ments of State couits. Note, 63 L. B. A. 572.
Where cause hu been remanded to State court, ax&d It refuses to carry out
mandate, appeal or writ of error Is proper remedy.
Approved in Tyler v. Maguire, 17 Wall. 290, 21 L. Ed. 585; Stanley v.
Schwalby, 162 U. S. 280, 281, 282, 40 L. Ed. 969, 16 Sup. Ct. 764, 766,
and Allen v. Blunt, 2 Wood. & M. 133, Fed. Cas. 217, following rule;
Southern Building & Loan Assn. v. Carey, 117 Fed. 328, discussing Cir-
cuit Court's power to enforce decree entered on mandate of appellate
court notwithstanding appeal therefrom and tender of supersedeas bond.
Power of appellate court after remittitur. Note, 21 Am. Dec. 119.
Superintending control and supervisory jurisdiction over inferior
or subordinate tribunal. Note, 51 L. B. A. 84.
Court will only decide questions arising in cause.
Approved in United States v. Palmer, 3 YHieat. 641, 4 L. Ed. 480;
Litchfield v. Railroad Co., 7 Wall. 271, 19 L. Ed. 151, following rule.
Not necessary that record should expressly aver that treaty or federal
law is dra^^ in question, it is enough that that appears on its face.
Cited in Wilson v. The Blackbird 'etc. Co., 2 Pet.' 250, 7 L. Ed. 414,
holding it is sufidcient if record shows the constitutionality of a law was
questioned; likewise in Craig v. Missouri, 4 Pet. 429, 7 L. Ed. 910, and
Crowell V. Randell, 10 Pet. 393, 396, 9 L. Ed. 468, 469. holding it is suffi-
cient if it appear by necessary intendment from the record that the ques-
tion must have been raised and decided ; Williams v. Oliver, 12 How. 1^4,
13 L. Ed. 921, dismissing suit where it appeared decision of State court
was, irrespective of law, claimed by defendant to impair obligation of con-
tract ; McCullough v. Virginia, 172 U. S. 118, 43 L. Ed. 388, 19 Sup. Ct. 134,
holding certain acts of Congress were there necessarily drawn in question;
Otis V. Rio Grande, 1 Woods, 597, Fed. Cas. 10,614, holding appeal well
taken, though facts were not recited; Deford v. Mehaffy, 13 Fed. 490,
holding omission of condition for payment of costs, in removal bond, not
1 Wheat. 304^82 NOTES-ON U. S. REPORTS. 726
fatal to jurisdiction ;. Frost v. Ilsley, 55 Me. 380, holding appellate court
will examine whole record, and then judge if they have jurisdiction.
Distinguished, Vaill v. Town Council, 18 R. I. 410, 28 Atl. 346, where,
under the local statute, taking of security below was essential to juris-
diction.
Final Judgment of Supreme Court 1b conclusive upon parties as to points
decided upon second appeal.
Approved in National Bank of Commerce v. United States, 224 Fed.
682, 140 C. C. A. 219, following rule; Illinois v. Illinois Cent. R. R. Co.,
184 U. S. 91, 92, 46 L. Ed. 446, 447, 22 Sup. Ct. 305, upholding decree en-
tered according to mandate ; StoU v. Loring, 120 Fed. 806 ; Mutual Reserve
Fund Life Assn. v. Beatty, 93 Fed. 754, and Texas & P. Ry. Co. v. Wilder,
101 Fed. 199, holding questions once decided by an appellate court and
will not be re-examined on subsequent appeal in same case; Howell ▼•
Jackson, 86 Ark.* 534, 111 S. W. 1001, decree dissolving restraining order
respecting water rights as to part of subject matter and making it per-
petual as to other, not severable so as to make two appeals proper; Ex
parte Sibbald, 12 Pet. 492, 9 L. Ed. 1169 ; Wash. B. Co. v. Stewart, 3 How.
425, 426, 11 L. Ed. 664, and Bank v. Beverly, 1 How. 149, 11 L. Ed. 81, all
holding decree conclusive as to points adjudicated; Bank v. Moss, 6 How.
40, 12 L. Ed. 336, and Noonan v. Bradley, 12 Wall. 129, 20 L. Ed. 281,
holding Circuit Court after adjournment, cannot set aside one of its own
judgments, even for want of jurisdiction; Coming v. Troy Iron Co., 15
How. 466, 14 L. Ed. 775, refusing to allow a second appeal on same ques-
tions which were open to dispute on first appeal; Roberts v. Cooper, 20
How. 481, 16 L. Ed. 974, noticing only errors peculiar to second trial;
Tyler v. Maguire, 17 Wiall. 284, 21 L. Ed. 583, holding that on second writ
of error only proceedings subsequent to mandate may be revised; Super-
visors V. Kennicott, 94 U. S. 499, 24 L. Ed. 260, holding subsequent appeal
brings up proceedings of Circuit Court after the mandate of this court;
Gaines v. Rugg, 148 U. S. 242, 37 L. Ed. 437, 13 Sup. Ct. 616, allowing
modification of the decree in the respect of the accounting; The Illinois,
Brown Adm. 21, Fed. Cas. 7003, declaring admiralty cannot, after expiration
of term, set aside a final decree on ground of oversight; United States v.
Leng, 18 Fed. 26, holding decision of Secretary of Treasury cannot law-
fully be recalled; Bissell etc. Co, v. Goshen etc. Co., 72 Fed. 552, 43 U. S.
App. 47, declaring that decree of Circuit Court must be carried out by court
below without modification; Republican Min. Co. v. Tyler M. Co., 79 Fed.
735, holding, on second writ of error, court is not bound to consider any of
the questions before it on first writ; Bank v. Rawdon, 5 Ark. 577, holding
court cannot reverse its own judgments, as also Davidson v. Dallas, 15
Cal. 83, and Leese v. Clark, 20 Cal. 419, to same effect; Semple v. Ander-
son, 4 Gilm. (111.) 562, refusing to go behind former decision, though it
appears of record that court acted without jurisdiction; Dodge v. Gaylor,
53 Ind. 368, holding none of the questions decided on first appeal can be
re-examined on second; Cotton v. McGehee, 54 Miss. 623, holding court
may, in exceptional cases, revoke its judgment; Bath's Petition, 22 N. H.
727 MARTIN v. HUNTER. 1 Wheat. 304-382
580, holding deeision of commissioners, accepted by the court, is res judi-
cata; King V. Ruckman, 22 N. J. Eq. 553, holding court has no further
jurisdiction of cause upon the merits after judgment had been entered and
papers remitted; People v. Mayor etc., 25 Wend. 255, 35 Am. Dec. 672,
refusing to grant a rehearing after entering judgment; Cox v. Breedlove,
2 Yerg. 608, holding bill of review will not lie upon a decree rendered in
Supreme Court; Oakley v. Hibbard, 2 Pinn. 22, 52 Am. Dec. 140, refusing
rehearing after judgment was entered ; State v. Bank, 20 Wis. 643, holding
judgment cannot be vacated after a year, because court had no jurisdiction
of the subject matter; Akerly v. Vilas, 24 Wis. 174, 1 Am. Rep. 173,
holding, where there has been a trial upon the merits, it is too late to
remove cause to Federal courts under act of 1867; Insurance Co. v. Boon,
95 tJ. S. 143, 24 L. Ed. 403, holding court cannot supply a special finding
of fact after term had expired; Poole v. Nixon, 9 Pet. Appx. 770, 9 L. Ed.
305, 19 Fed. Cas. 993, 1000, and Sanderson v. Sanderson, 20 Fla. 299,
arguendo.
Distinguished in Hastings v. Foxworthy, 45 Neb. 693, 63 N. W. 960,
holding, where, on first appeal, case was remanded generally for a new
trial, the appellate court may re-examine its rulings on first appeal; Balch
V. Haas, 73 Fed. 976, 36 U. S. App. 693, holding court, on second writ of
error, is not bound on point which might have been raised on first writ.
In case judge issuing citation for writ of error neglect to take reqioired
hond. Supreme Court will impose proper terms on other party.
Approved in Davidson v. Lanier, 4 Wall. 454, 18 L. Ed. 379; Freeman
y. Clay, 48 Fed. 850, 2 U. S. App. 151 ; Chicago etc. v. Chicago etc., 65 Fed.
466, 24 U. S. App. 525; Dayton v. Lash, 94 U. S. 113, 24 L. Ed. 33; O'Reilly
V. Edrington, 96 U. S. 726, 24 L. Ed. 659, and Seward v. Corneau, 102
U. S. 162, 26 L. Ed. 86 ; Henning v. Western Union, 41 Fed. 867, following
rule; Taylor v. Leesnitzer, 31 App. D. C. 96, appeal from decree jointly
affecting twa parties perfected as to one and not the other will be dis-
missed; United States v. Clabaugh, 21 App. D. C. 443, appeal bond ap*
proved after twenty days not good.
Conclusiveness of prior decisions on subsequent appeals. Note, 34
L. B. A. 331.
Return of copy of record of State Court, certified by clerk and annexed
to writ of error, is sufficient return.
Cited in Worcester v. Georgia, 6 Pet. 537, 565, 8 L. Ed. 492, 502, hold-
ing writ of error, certified by clerk and authenticated by seal of court, suffi-
cient; Hudgins v. Kemp, 18 How. 538, 15 L. Ed. 514, holding certificate of
clerk, of allowance of appeal, sufficient; Biyan v. Bates, 12 Allen, 213,
arguendo.
United States government is supreme within its powers.
Approved in Downes v. Bidwell, 182 U. S. 289, 45 L. Ed. 1107, 21 Sup.
Ct. 822, following rule ; In re Brown, 3 N. B. 250, 4 Fed. Cas. 335, holding
any State exemption laws, in conflict with national act, must yield; The
Parkhill, 18 Fed. Cas. 1191^ when, because of war, government's courts
1 Wheat. 382-407 NOTES ON U. S. REPORTS. 728
are closed, it may enforce justice in such ways as are lawful in foreign
wars; Commonwealth v. Fuller, 8 M«t. 319, 41 Am. Dec. 513, holding State
laws, in conflict with acts of Congress, void.
Act done by court without Jnriadiction is ipso facto void.
Approved in Munger v. Doolan, 75 Conn. 661, 55 Atl. 171, holding under
Rev. Stats. 1902, § 828, attachment served by lei^ving copy of process and
complaint at property attached for defendant, and not, for person in -jpos-
session thereof, is void; Strong v. Strong, 8 Conn. 412, 'holding decree of
probate court without jurisdiction is of no effect.
Alien can take land by devlBe.
Cited in Fox v. Southack, 12 Mass. 148, Kershaw v. Kelsey, 100 Mass.
575, 97 Am. Dec. 137, following rule.
Treaty is supreme law of land, and where ratified after rendition of Judg-
ment holding contra, Judgment must be reversed.
Cited in Pollard v. Kibbe, 14 Pet. 412, 416, 10 L. Ed. 619, 520, following
rule.
Effect of treaties on alien's right to inherit. Note, 82 L. B. A. 178.
Appointment to office as executive or legislative function. Note, 13
Am. St. Bep. 145.
Miscellaneous. Cited in dissenting opinion in Downes v. Bidwell, 182
U. S. 378, 45 L. Ed. 1141, 21 Sup. Ct. 822, majority holding that constitu-
tional limitations apply only to States; The Underwriter, 119 Fed. 741,
arguendo; incidentally in Mobile v. Eslava, 16 Pet. 250, 10 L. Ed. 954, In
re Booth, 3 Wis. 88, Brown v. State, 46 Ala. 151, and Thompson v. Phillips,
Bald. 284, Fed. Cas. 13,974. Cited in Coleman v. Newby, 7 Kan. 87, as to
functions of different departments of government; Chancely v. Bailey, 37
Oa. 536, 95 Am. Dec. 353, that Constitution was intended for all ages;
Ferguson v. Dent, 29 Fed. 6, to point that words should not be hypercrit-
ically examined; Leland v. Ship Medora, 2 Wood. & M. 110, Fed. Cas.
8237, Tennessee v. Davis, 100 U. S. 299, 25 L. Ed. 662, as to power of re-
moval in criminal cases; Holmes v. Jenison, 14 Pet. 629, 10 L. Ed. 628,
State V. Davis, 12 S. C. 534, and Ba^ v. Railroad Co., 109 N. C. 281, 26
Am. 8t. Bep. 571, 14 S. E. 80, as to what is police power.
1 \Vheat. 382-407, 4 L. Ed. 116, THE COMMEBCEN.
Provisions designed for direct use of enemy's troops are ocmtr&band.
Approved in Balfour, Guthrie & Co. v. Portland etc. S. S. Co., 167 Fed.
1015, flour contraband if intended for military use of belligerent; The
Stephen Hart, Blatchf. Pr. 406, Fed. Cas. 13,364, holding goods intended
to be carried into enemy's country for enemy's use are contraband; The
Peterhoff, 5 Wall. 58, 18 L. Ed. 571, discussing different classes of contra-
band articles.
Provisions designed for use of enemy's troops in war wholly distinct from
that waged with United States are contraband as to latter.
Cited in The Peterhoff, Blatchf. Pr. 506, Fed. Cas. 11,024, following rule ;
1 • ^
NOTES ON U. S. REPORTS. 1 Wheat. 408-417
^Approved in The Benito Estenger, 176 U. S. 573, 44 L. Ed. 594, 20 Sup.
' f90, following rule.
//^stingoished in City of Mexico, 24 Fed. 40, refusing to condemn vessel
^^h was never in the employ or possession of the insurgent government.
^ ^eat. 408-414, 4 K Ed. 123, THE GEOBaS.
•^ cases of alleged Joint or collusive capture "wliere tbere Is doubt, other
^v:v(Q2ice than that arising from captured vesBel, may be resorted to.
Cited in The Experiment, 8 Wheat. 264, 266, 267, 268, 5 L. Ed. 613, 614,
holding -that in cases of collusive capture, papers found on board one
eaptvur^^ vessel may be invoked into the case of another captured on the
sarft^ onaisej The Springbok, JBlatchf. Pr. 443, Fed. Cas. 13,264, allowing
ptoofs £xom two other causes on the docket of the court for trial at the
same t^uxie with this case.
1 ^^^t^ 415-417, 4 L. Ed. 124, T7NITED STATES T. OOOLIDGE.
^^^^^-^ary, whether Circuit Courts have Jurisdiction of offenses at common
l»^ »€E«tlsist united Stotes.
A?T>:roved in United States v. Grimaud, 170 Fed. 206, 207, provision of
^tftiTa^t;^ for preservation of forests, making it crime to violate regulations
^ S^Kix-etary of Interior relative thereto, is void ; United States v. Dietrich,
•jj6 «ed. 678, holding person elected to United States Senate until he has
l^tv Accepted by Senate as member and assumed duties of office is not mem-
\jet ^% Congress within Rev. Stats., § 1781, punishing acceptance of bribe
\g^ member of Congress; Wilkins v. United States, 96 Fed. 839, holding it
IL crime to deface revenue brands when used in accordance with statutory
regulations; Peters v. United States, 94 Fed. 131, upholding indictment
against cashier of national bank in falsifying returns to controller; Re
Gompers, 40 App. D. C. 322, criminal contempt not crime within meaning
of Federal statutes ; United States v. Hall, 98 U. S. 345, 25 L. Ed. 181,
holding Congress can vest power to punish a tsrime in Circuit Court; dis-
senting opinion in Tennessee v. Davis, 100 U. S. 275, 25 L. Ed. 654, major-
ity holding Federal courts have jurisdiction where one acting under rev-
enue laws kills another; United States v. Britton, 108 U. S. 206, 27 L. Ed.
700, 2 Sup. Ct. 535, holding that there are no common-law offenses against
the United States; dissenting opinion in In re Neagle, 135 U. S. 89, 34
L. Ed. 80, 10 Sup. Ct. 677, majority holding that one acting under laws of
the United States, could not be held under State law for murder; In re
Barry, 136 U. &. 605, 607, 34 L. Ed. 506, 507, 42 Fed. 119, 120, Fed. Cas.
1059, holding District Court cannot issue writ of habeas corpus, to restore
infant detained by grandparents, to father; United States v. Eaton, 144
U. S. 687, 36 L. Ed. 594, 12 Sup. Ct. 767, declaring there are no common-
law offenses against the United States ; United States v. Wilson, 3 Blatchf .
438, Fed. Cas. 16,731, holding that inferior Federal courts cannot take
cognizance of crimes without express appointment ; as also in United States
V. Plumer, 3 Cliff. 55, Fed. Cas. 16,056, United States v. New Bedford
Bridge, 1 Wood. & M. 438, 448, 472, Fed. Cas. 15,867, and United States
1 Wheat. 417-432 NOTES ON tJ. S. REPORTS. 730
V. Rogers, 46 Fed. 3, to same effect; In re Greene, 62 Fed. Ill, holding
when Congress adopts or creates a common-law offense, courts may look
to the common law for the true meaning; In re Dana, 68 Fed. 899, holding
local offenses against local law are not removable to Federal courts ; United
States V. Benson, 70 Fed. 594, 44 U. S. App. 219, not looking at common
law in considering validity of indictment of Federal offense ; United States
V. Mackenzie, 30 Fed. Gas. 1162, holding Congress had not given civil
courts jurisdiction of murder committed on United States ship of war,
and triable before a court-martial under navy regulations; Gatton v. C.
Ry. Co., 95 Iowa, 122, 136, 63 N. W. 592, 596, declaring that the common
law is not a part of our national jurisprudence ; State v. Buchanan, 5 Har.
& J. 361, 9 Am. Dec. 570, holding conspiracy to cheat Bank of United
States not a Federal offense; Forward v. Adams, 7 Wend. 207, declaring
that United States courts have no general common-law criminal jurisdic-
tion ; Mitchell v. State, 42 Ohio St. 385, holding State has no common-law
offenses ; dissenting opinion in Passenger Cases, 7 How. 637, 2 L. Ed. B09 ;
United States v. Boyer, 85 Fed. 436, Campbell v. United States, 4 Fed.
Cas. 1202, and Muller's Case, 17 Fed. Gas. 976, arguendo ; United States v.
Eckford, 6 Wall. 488, 18 L. Ed. 921, to point that Federal courts have only
such jurisdiction as is conferred by Congress.
Distinguished in United States v. Abbott, 24 Fed. Cas. 744, where there
was a statute defining the crime ; Lynch v. Clarke, 1 Sand. Ch. 651, holding
that to a limited extent the principles of the common law prevail in oar
national jurisprudence.
Adoption of common law in relation to crime. Notes^ Ann. Cas. 1913E»
1253;22L.B. A. 507.
1 Wlieat. 417-432, 4 L. Ed. 125, THE ST. NICHOIiAa
Wliere enemy^s property Is fraudulently blended Ih same claim -with nea-
trals, latter is liable to be forfeited.
Cited in The Fortuna, 3 Wheat. 238, 4 L. Ed. 379, condemning ship where
neutral owner lends his name to cover a fraud with regard to cargo; Car-
rington v. Insurance Co., 8 Pet. 522, 8 L. Ed. 1031, holing there was suffi-
cient cause for seizure where neutral used false papers; United States v.
Brig Lilla, 2 CliJff. 183, Fed. Cas. 15,600, holding if neutral claim part of
cargo, belonging to enemy, to deceive the court, the part he really owns
will be condemned; The Lilla, 2 Sprague, 182, Fed. Cas. 8348, to ^ame
effect ; United States v. One Hundred Barrels, 27 Fed. Cas. 297, holding
license procured through mistake or fraud will not prevent forfeiture.
Distinguished in The Venus, 5 Wheat. 130, 5 L. Ed. 51, decreeing restitu-
tion where upon further proof it appeared that defect in ship's papers was
result of mistake ; The Betsy and Cargo, 2 Gall. 385, Fed. Cas. 1364, where
the parties failed in their attempt to defraud, and did not actually use
the papers.
Supercargoes, who are, and their rights, duties and liabilities. Note,
66 Am. Dec. 326.
731 NOTES ON U. S. REPORTS. 1 Wheat. 432-462
1 Wheat. 432-438, 4 L. Ed. 129, BUSSEI. ▼. TRANSYLVANIA TTNIVEBSITT.
Bill to obtain conToyanc^ of lands dismlBsed where the claim was of nearly
forty years' standing, and the witnesses mostly dead.
Approved in Coppermines Co. v. Comins, 38 Nev. 374, 148 Pac. 353,
upholding particular description in deed conveying land by government
subdivisions over general description as a certain ranclu
1 Wheat. 439-440, 4 L. Ed. 130, THE ELSINEUB.
Where inspection of original document is material to decision of prize
cause, it will he ordered up from court below.
' Cited in Craig v. Smith, 100 U. S. 230, 25 L. Ed. 579, following rule.
X Wheat. 440-447, 4 K Ed. 131, THE HIBAM.
Agreement made in court of chancery, law or prize under clear mistake
will be set aside.
Approved in Carnegie Steel Co. v. Cambria Iron Co., !I85 U. S. 444, 46
L. Ed. 989, 22 Sup. Ct. 715, holding stipulation entered into for purpose
of saving time may be repudiated when it later appears that it was inad-
vertently signed; Carrell v. McMurray, 136 Fed. 670, applying rule to
reformation of deed made under contract for exchange of farm for stock
of merchandise ; Truett v. Onderdonk, 5 Cal. Unrep. 791, 50 Pac. 396j hold-
ing erroneous, ruling sustaining entry of judgment of dismissal by mis-
take; Walden v. Skinner, 101 U. S. 584, 25 L. Ed. 966, reforming trust
deed; Hamburg-Bremen Ins. Co. v. Pelzer M. Co., 76 Fed. 481, where fore-
man omitted an item allowed by jury, relief was granted; Knobloch v.
Mueller, 123 111. 566, 17 N. E. 700, granting relief against admissions in
judicial proceedings in ignorance of facts ; Barry v. Insurance Co., 53 N. Y.
540, holding all stipulations made during progress of action may be set
aside ; Roberts v. Hi^gart, 4 Dak. 212, 29 N. W. 656, arguendo.
Navigating under license of enemy is cause for confiscation.
Approved in The Adula, 170 U. S. 379, 44 L. Ed. 513, 20 Sup. Ct. 439,
holding notice of blockade>^to enemy charterer is notice to vessel ; The Julia
and Cargo, 1 Gall. 598, Fed. Cas. 7575, holding license from enemy on
vessel subserving interest of enemy, subjects it to confiscation ; Craig v.
Insurance Co., Pet. C. C. 417, Fed. Cas. 3340, declaring sailing under license
of enemy is illegal; as also in Chappell v. Wysham, 4 Har. & J. 561, to
same effect ; Colquhoun v. Insurance Co., 15 Johns. 353, holding policy pro-
viding that vessel should have license of enemy aboard is void.
Distinguished in dissenting opinion in The Adula, 176 U. S. 396, 397,
44 L. Ed. 519, 20 Sup. Ct. 445, majority holding notice of blockade to enemy
charterer is nc^ee to vessel.
1 Wheat. 447-462, 4 K Ed. 182, AMMIDON ▼. SMITH.
Discharge of prisoner procured by ftaud is a lawful discharge protecting
bondsmen, and not an escape.
Approved in dissenting opinion in Haddock v. Haddock, 201 U. S. 627,
50 L. Ed. 893, 26 Sup. Ct. 525, majority holding mere domicile within State
1 Wheat. 462-476 NOTES ON U. S. REPORTS. 732
of one party to marriage does not give courts of that State jurisdiction to
render decree of divorce enforceable in other States against nonresident
only constructively served; Hancock Inspirator Co. v. Jenks, 21 Fed. 914,
holding recital in application that patentee made oath is conclusive in
absence of fraud; Everett v. Henderson, 146 Mass. 98, 4 Am. St. Rep. 292,
14 N. E. 939, holding recognizance will not be avoided because arrest of
debtor was procured by fraudulent affidavits ; Hibler v. Hammond, 2 Strob.
107, holding discharge of prisoner by order of court, even though plain-
tiff did not appear and no issue was made on the truth of the schedule, is
a bar to an action on his bond ; Farmer v. Stewart, 2 N. H. 101, arguendo.
Distinguished in Pratt v. Northam, 5 Mason, 103, Fed. Cas. 11,376, hold- 1
ing settlement of administrator's account procured by fraud is not conclu-
sive; Eldridge v. Bush, Smith (N. H.), 297, holding sureties could not avail
themselves of an omission of creditor induced by fraud of debtor, ^y which
latter was released from prison; Whittemore v. Whittemore, 2 N. H. 28,
holding an award is not a bar to an action on demands not actually laid.
Conylction is a technical term applicable to Judgments in criminal prose-
cutions. •
Cited in Hill v. State, 41 Tex. 255, following rule ; Fisk v. Sampson, 156
Iowa, 254, Ann. Oas. 1916B, 280, 136 N. W. 316, judgment of contempt for
violating liquor injunction not conviction within meaning of statute pro-
hibiting person convicted thereunder from selling liquor for five years;
Dial v. Commonwealth, 142 Ky. 34, 133 S. W. 977, where judgment for
perjury set aside party competent as witness.
Legal meaning of "conviction" or '^convicted." Note, Ann. Oas. 1915B,
284.
Character and kinds of judgments and orders not collatei^ally ^assail-
able for fraud not affecting jurisdiction. Note, 86 L. B. A. (N. S.)
985.
t
1 Wheat. 462-476, 4 L. Ed. 136, JONES ▼. SHOEE.
Collector In oi&ce at time of seizure is entitled to penalty, «ince he acquiroB
an Inchoate right by seizure.
Approved in Buel v. Van Ness, 8 Wheat. 320, 5 L« Ed. 626, following
rule; The HoUen and Cargo, 1 Mason, 434, Fed. Cas. 6608, holding that
after decree of condemnation Secretary of Treasury has no authority to
remit collector's share of forfeiture; United States v. Harris, 1 Abb. (U. S.)
116, Fed. Cas. 15,312, holding President cannot remit penalty vested by
judgment; United States v. Lancaster, 4 Wash. 66, Fed. Cas. 15,557, de-
claring President cannot remit interest of custom officers ; Westcot v. Brad-
ford, 4 Wash. 497, Fed. Cas. 17,429, holding seizure vests inchoate right
in informer ;"as also in City of Mexico, 32 Fed. 107, to same effect ; Bice v.
Thayer, 105 Mass. 260, 261, 7 Am. Bep. 618, 519, holding informer cannot
sue collector for his share unless penalty has been recovered; Confiscation
Cases, 7 Wall. 460, 19 L. Ed. 199, arguendo.
Distinguished in Van Ness v. Buel, 4 Wheat. 75, 4 L. Ed. 518, where
collector was removed before proceedings in rem consummated; United
\
733 PATTON v. EASTON. 1 Wheat. 476-482
States V. Morris, 10 Wheat. 288, 6 L. Ed. 324, holding United States may
remit penalty before it is paid to collector ; Hoyt v. United States, 10 How.
138, 13 L. £d. 360, the collector has no interest in duties, they constitute
no part of the proceeds of the goods forfeited; Bradford v. Jones, 1 Md.
371, 374, where the clerk had done nothing to give him an inchoate title;
Waddell v. Morris, 14 Wend. 81, where there has been an apportionment,
former marshal's remiedy is in equity.
The court while In possession of fund paid in as .a penalty will determine
disputes between Informers.
Approved in United States v. George, 6 Blatchf. 46, Fed. Cas. 16,197,
and Westcot v. Bradford, 4 Wash. 498, Fed. Cas. 17,429, following rule.
Distinguished in Lapham v. Almy, 13 Allen, 303, holding collector, after
sum has been paid over by decree of court, is liable to an action by any
party for his share. ♦
Miscellaneous. Cited in In re Nevitt, 117 Fed. 459, holding President
. cannot pardon contempt ; to form of decree. Fifty Thousand Cigars, 1 Low.
27, Fed. Cas. 4782, In re Metzger, 17 Fed. Cas. 234, The Palo Alto, 2 Davies
(Ware), 364, Fed. Cas. 10,700.
1 Wheat. 476-482, 4 K Ed. 139, PATTON ▼. XSASTON.
Under Tennessee statute possession of land is bar only when held under
grant.
Approved in Quii^tte v. Pullman Co., 229 Fed. 336, holding conclusive
decision of State Supreme Court upholding statute cutting off right of cor-
poration to plead statute of limitation for failure to designate agent on
whom process could be served; Walker v. Turner, 9 Wheat. 650, 6 L. Ed.
157, following rule ; Neal v. Green, 1 McLean, 19 Fed. Cas, 10,065, holding
title was not made good by adverse possession; Moody v. Fleming, 4 6a.
121, 48 Am. Dec. 215, holding possession under void grant is possession
under color of title; Fain v. Garthright, 5 Ga. 15, as to title under void
devise; Toll v. Wright, 37 Mich. 98, as to sale originally void; Harris v.
Bledsoe, Peck (Tenn.), 252, possession must be sustained by title connected
with original grant. See notes to 4 Wheat. 234, 4 L. Ed. 559, and 6 Wheat.
121, 5 L. Ed. 49.
Distinguished in Powell v. Harman, 2 Pet. 241, 7 L. Ed. 411, holding a
void deed not protected by statute ; overruled in Green v. Neal, 6 Pet. 293,
295, 301, 8 L. Ed. 403, 404, 406, holding it is not necessary to entitle one
to the protection of the statute that he show a connected title. Cited as
overruled in dissenting opinion in Moore v. Brown, 11 How. 436, 13 L. Ed.
760, majority holding void deed insufficient.
Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Note, 15 L. B. A. (N. S.) 1225.
Questions of State law as to which State court depisions must be fol-
lowed in actions originating in, or removed to, Federal courts. Note^
40 L. E. A. (N. 8.) 425.
I Wheat. 482-606 NOTES ON U. S. REPORTS. 734
Miscellaneous. Cited in Greencastle S. T. Co. v. State, 28 Tnd. 387, as
an instance of court overruling its own decision ; Mayor v. Pres. etc. Steam
etc. Co., Charlt. (Ga.) 346, to point that a legislative act appropriating
property is an irrevocable grant ; dissenting opinion in Gelpcke v. Dubuque,
1 Wall. 212, 213, 17 L. Ed. 528; Bauserman v. Blunt, 147 U. S. 653, 37
L. Ed. 318, 13 Sup. Ct. 469, and Balkan v. Iron Co., 154 U. S. 188, 38 L. Ed.
957, 14 Sup. Ct. 1014, as following decision of State court on statute of
limitations.
1 l^eat. 482-487, 4 L. Ed. 141, B083 V. BEED.
Acts done by public ofllceni presumed to havtf been done correctly; bo but-
vey and entry to one claimant is prima facie ervidence of his title.
Approved in Griflfin v. American Gold Min. Co., 136 Fed. 73, 68 C. C. A.
637, applying principle to marshal's return oh attachment of realty; New
River Min. Co. v. Roanoke Coal & Coke Co., 110 Fed. 345, holding sheriff
presumed to have returned notice required by Va. Code, § 3211, within
requisite time ; McQueen v. Flasdick-Black Land & L. Co., 135 La. 707, 65
South. 903, upholding presumption that register satisfied himself that en-
tryman acted for transferee before issuing patent; Whitcomb v. Spring
Valley Coal Co., 47 Fed. 655, holding where part of patent was issued to
patenter and part to patentee, it will be presumed assignment wad prop-
erly made; Commissioners of Pueblo County v. Marshall, 11 Colo. 87, 16
Pac. 839, holding one has right to rely on official act of coroner; People ▼.
Mauran, 5 Denio, 398, holding patentee did not show statutory prerequi-
sites; Insurance Co. v. Wright, 60 Vt. 522, 12 Atl. 107, holding it is pre-
sumed a foreign insurance company filed a copy of lis by-laws, where
Secretary of State had issued them a license; United States v. Speed, 8
Wall. 83, 19 L. Ed. 452, arguendo.
1 Wheat. 499, 4 L. Ed. 146, APPENDIX.
Prize cases are first heard on vessel's papers, and nnless from these diar-
acter of property is doubtful, court looks no further.
Cited in United States v. Areola, 24 Fed. Cas. 850, following rule.
1 Wheat. 606, 4 L. Ed. 149, APPENDIX.
Onus probandi that property is neutral is upon claimant.
Cited in Cushing v. Laird, 107 U. S. 79, 27 L. Ed. 395, 2 Sup. Ct. 204^
holding decree determines nothing as to title, but only question of prize or
no prize.
NOTES
ON THB
UNITED STATES REPORTS.
n WHEATON.
\ ^
2 "Wlieat. 1-13, 4 L. Ed. 169, 8I.00UM T. MATBEBBY.
JuriBdlction of Federal courts la exclusive over seizures made on land or
water for violation of United States la^ra.
Approved in Divine v. Unaka Nat. Bank, 125 Tenn. 109, 39 L. B. A.
(N. S.) 586, 140 S. W; 750, denying right of ofl&cers of soldier's home to de-
tain property of decedent's estate in custody of administrator appointed by
State courts ; Gelston v. Hoyt, 3 Wheat. 312, 4 L. Ed. 398, and Ashbrook v.
The Golden Gate, Newb. 299, Fed. Cas. 574, denying right of owner of goods
to proceed against captor in State court until legality of seizure determined
by Federal court ; Freeman v. Howe, 24 How. 458, 16 L. Ed. 761, holding
void writ of replevin issued by State court on property attached by United
States marshal; Biggs v. Johnson County, 6 Wall. 195, 18 L. Ed. 776, to
point that State court cannot enjoin execution of judgment in Federal
court in action against county to recover interest on bonds; In re Fassett,
142 U. S. 484, 36 L. Ed, 1089, 12 Sup. Ct. 297, as to seizure for violation
of revenue laws; Hall v. Warren, 2 McLean, 334, Fed. Cas. 5952, holding,
fnrther, that pendency of proceedings in Federal court may be pleaded in
abatement to trespass against seizing officer; United States v. Cloth, 1
Paine, 439, Fed. Cas. 15,150, following rule; Burke v. Trevitt, 1 Mason,
99, Fed. Cas. 2163 (decision preceded that in principal case, ruling simi-
larly); The Phebe, 1 Ware, 364, Fed. Cas. 11,066, holding that where
property taken from officer of court, during proceedings, redelivery may be
enforced by attachment; In re Brinkman, 7 Bank. Reg. 426, 4 Fed. Cas. 147,
as to proceedings under bankruptcy act; Gates v. Parish, 47 Ala. 161, re-
fusing to annul discharge in bankruptcy decreed by Federal court; Free-
man V. Robinson, 7 Ind. 323, to point where Federal and State laws conflict
former will prevail; Howe v. Freeman, 14 Gray, 571, 574, denying right to
maintain replevin against United States marshal for property attached
on mesne process of Federal court; Sailly v. Cleveland, 10 Wend. 158,
holding, however, that where property seized consists of negotiable pai)er,
action upon it must be in name of party to it and not in name of marshal ;
Tracey v. Corse^ 58 N. Y. 149, asserting right of collector to order summary
(735)
y
\
2 Wheat. 1-13 NOTES ON U. S. REPORTS. 736
sale of property seized nnder revenue laws; New Jersey etc. Co. ▼. Bank,
6 How. 390, 12 L. Ed. 486; Andrews v. Smith, 19 Blatchf. 102, 5 Fed. 836;
Daly V. Sheriff, 1 Woods, 178, Fed. Gas. 3553 ; Warner v. Steamer Uncle
Sam; 9 Cal. 731, arguendo.
Distin|2ruished in The Celestine, 1 Biss. 10, Fed. Cas. 2541, where seizure
made under State statute; Cooper v. Cobum, 2 Curt. 469, Fed. Cas. 3416,
under facts; Smith v. Averill, 7 Blatchf. 33, Fed. Cas. 13,007, holding
that where judgment given for claimant of property seized, it is no defense
to an action against officer, where property not returned to claimant, that
certificate of probable cause was made ; Senior v. Pierce, 31 Fed. 627, hold-
ing that where jurisdiction of State court is exclusive Federal court can-
not disturb property in hands of State officers; so also in In re Hall etc.
Co., 73 Fed. 528 ; Ex parte Hill, In re Willis v. Confederate States, 38 Ala.
435, 438, and in Ex parte Hill, In re Armstead v. Confederate States, 38
Ala. 461, 462, asserting right of State court to order release of person
held under "second conscript law," he having furnished substitute under
first conscript law (but see dissenting opinion in latter case, pp. 483, 484).
Limited in Crawford v. Waterson, 5 Fla. 474, holding that where juris-
diction of Federal courts is not exclusive. State court may give redress;
Mock V. Kennedy, 11 La. Ann. 526, 66 Am. Dec. 204; Heymon v. Covell,
44 Mich. 335, 38 Am. Rep. 275, 6 N. W. 848, and Bruen v. Ogden, 11 N. J. L.
376, 382, 384, 20 Am. Dec. 597, 603, 605, all holding that State court may
enjoin United States marshal from seizing property of one person under
execution issued against another; Stoughton v. Mott, 13 Vt. 182, holdings
that while proceedings are pending in Federal court, State court has juris-
diction of suit against officer for wrongful taking.
Judgments of Federal conrtB in actions within Jurisdiction are not subject
to collateral impeachment.
Cited in New Lamp Chimney Co. v. Ansonia etc. Co., 91 U. S. 661, 33
L. Ed. 339, 13 Bank. Reg. 390, as t.o decree under bankruptcy act ; McGuire
V. Winslow, 23 Blatchf. 427, 26 Fed. 305, denying right of owner of goods
to maintain trover against officer. Circuit Court having held goods subject
to seizure under revenue laws; Bailey v. Sundberg, 43 Fed. 82, ruling^
siiftilarly as to decree in proceedings against vessel for damages caused by
collision; CucuUu v. Insurance Co., 6 Mart. ^La.) (N. S.) 14, holding*
decree in admiralty conclusive, as to legality of seizure, in action on marine
insurance contract ; Kittredge v. Emerson, 15 N. H. 269, applying principle
to judgments rendered in State courts.
Where officer making, refoses to institute proceedings to determine f or-
f eiture, court may compel him to do so or abandon seizure.
Cited in The Nuestra Senora de Regia, 108 U. S. 103, 27 L. Ed. 666,
where, on restitution of goods, court awarded damages against officer for
unreasonable delay in instituting proceedings.
When forfeiture of property under statute takes effect. Note, 7 Ani^,
Oas. 900.
Right to maintain replevin for goods seized under process against
another. Note, 7 Ann. Oafl. 909.
737 GBEENLEAF v. COOK. 2 Wheat. 13-18
I
2 Wlieat. lS-18, 4 L. Bd. 172, GBEENI£AF v. COOK.
Failnre of consideration, tlirough defect of title, must be total in order to
constitiite defense to action on note given for purchase price.
Approved in Converse Bridge Co. v. Geneva County, 168 Ala. 456, 53
South. 204, upholding riglit of county to bring action to cancel warrants
issued for building bridge, where bridge collapsed within year; Brown v.
Ohio National Bank, 18 App. D. C. 609, failure of bank to make defendant
director in bank as promised when stock of bank was purchased no defense
to action on note given as part consideration for stock; Elminger v. Drew,
4 McLean, 392, Fed. Cas. 4416, whe^e note given for certain barrels of fish,
and there was no averment that barrels were worthless, although contents
so proven ; Zimpelman v. Hipwell, 54 Fed. 853, 2 U. S. App. 568, defendant
having failed to sustain allegations that title had wholly failed or that he
was liable to be evicted by superior title ; Long v. Allen,' 2 Fla. 409, 50
Am. Dec. 288, where vendor held under patent from United States and
vendee alleged outstanding title in another; Roddick v. Mickler, 23 Fla.
337, 2 South. 699, applying rule where failure consisted in land conveyed
falling short of quantity described in deed; so also in Mickler v. Roddick,
38 Fla. 348, 21 South. 288, to same effect ; Howard v. Witham, 2 Me. 393,
where vendor represented title to be in fee simple, when in fact it was but
an estate for life; Hoy v. TaliaferrO; 8 Smedes & M. 740, 741, holding
further, actual eviction necessary to total failure of consideration; fol-
lowed in Copeland v. Loan, 10 Mp. 268, following rule; Fletcher v. Chase,
16 N. H. 41, applying principle where note in hands of person to whom
transferred by vendor as collateral security ; Allen v. Bank, 20 N. J. L. 625,
holding that vendee cannot avoid payment of note on ground that vendor
has failed to convey certain easement as promised by agent; Pino v. Beck-
with, 1 N. M. 27, allowing recovery by vendee of purchase price paid,
vendor having failed to make title, and vendee, .at time of action brought,
havihg tendered possession to vendor; Washburn v. Picot, 3 Dev. 391, sus-
taining right to recover on note where failure of consideration only par-
tial ; Walker v. Smith, 2 Vt. 543, on point that defendant in action on note,
not having rescinded purchase, could not prove fraud on part of vendor;
Hadlocks v. Williams, 10 Vt. 572, holding vendee relieved from payment
of notes where failure of consideration total and possession never trans-
ferred under contract; Norton v. Rooker, 1 Pinn. 208, to point that claim
for unliquidated damages cannot be set off in action on note; Wanger v.
Truly, 17 How. 585, 15 L. Ed. 217, arguendo.
Limited in Peden v. Moore, 1 Stew. & P. 81, 21 Am. Dec. 656, holding
that where subject matter of sale is personalty, defendant may in action on
note claim deduction for injury sustained.
Distinguished in Wheat v. Dotson, 12 Ark. 709, holding contra where
there was partial failure of quantity or quality of subject matter ; Washa-
baugh V. Hall; 4 S. D. 173, 56 N. W. 83, where price paid upon express
condition that it should be repaid unless title perfected within time limited.
Questioned in Earle v. Earle, 16 N. J. L. 281, arguendo.
Failure of consideration as defense to action on purchase price note.
Note, 39 L. R. A. (N. S.) 943, 945.
\
2 Wheat. 18-^1 NOTES ON U. S. REPORTS. 738
Wliere vendee, having knowledge of encumbrance, gives note for v^aacj
chase price, such defect Is no legal bar to action on note.
Cited in Strong v. Waddell, 56 Ala. 473, denying right of purchaser in
possession, to set up outstanding title, in bar to bill to enforce vendor's
lien ; Tobin v. Bell, 61 Ala. 129, where deed contained no warranty of title,
and caveat emptor held to apply ; Findley v. Cooley, 1 Blackf . 264, to point
that vendee cannot avoid payment of note on ground that conveyance was
made to defeat creditors; Green v. Finucane, 5 How. (Miss.) 546, refusing*
to enjoin collection of notes given for purchase price, where vendee knew
that vendor had only equitable title ^nd it appeared that vendor could
later convey legal title; Hassams v. Dompier, 28 Vt. 33, where record of
mortgage held to have given vendee constructive notice of encumbrance;
Decker v. Schulze, 11 Wash. 60, 48 Am. St. Jtep. 867, 39 Pac. 266, discussing
general subject, of defect of title.
Right of grantee in possession to question right of grantor to collect
purchase money. Note, 21 L. B. A. (N. S.) 370, 388.
Partial defect In title or deed Is examinable only by court of equity.
Cited in Parham v. Randolph, 4 How. (Miss.) 453, 36 Am. Dec. 408,
rescinding contract for sale of land on ground of fraud, after judgment
of law on notes given to secure purchase money.
2 Wbeat. 18-24, 4 L. £d. 174, OTIS v. WALTEB.
Not cited.
2 Wheat. 25-31, 4 L. Ed. 176, McIVEB T. BAGAN. '
Purpose of statute of limitations is not punishment of those wlio nefi^lect
to assert rigbts, but protection of those wlxo have remained in possession under
color of title supposed to be good.
Approved in dissenting opinion in Ayres v. Cone, 138 Fed. 786, majority
holding where validity of claim of petitioning creditor in involuntary bank-
ruptcy proceedings is put in issue by bankrupt's answer and issue deter-
mined in favor of creditor, adjudication is conclusive; Armstrolig v. Mor-
rill, 14 Wall. 146, 20 L. Ed. 772, holding that forfeiture to State for default
of real owner in payment of taxes, breaks continuity of adverse possession,
and adverse possession subsequent to restitution cannot be tacked to prior
possession; Mitchell v. Wilson, 3 Cr. C. C. 248, Fed. Cas. 9672, holding
possession of slave for twenty years, prima facie evidence of title in
plaintiff in replevin ; Roberts v. Pillow, Hempst. 634, Fed. Cas. 11,909, hold-
ing color of title under void deed admissible in evidence of adverse posses-
sion; English V. Register, 7 Ga. 390, holding that possession under
disclaimer of title is not adverse as regards one having perfect paper title ;
Hickman v. Gaither, 2 Yerg. 204, to point that claim by entry will be
barred by adverse possession under color of title for statutory period;
Spaulding v. Grigg, 4 Ga. 87, arguendo.
Distinguished in French v. Wliite, 78 Vt. 96, 2 L. R. A. (N. S.) 804,
62 Atl. 36, property vesting in bankrupt's trustee under bankruptcy law
is not attachable in State court.
Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Note, 15 L. B. A. (N. 8.) 1181.
733 McIVER v. RAGAN. 2 Wheat. 26-31 r-
Courts can make no exceptioiui to statntea of Umitatlons.
Approved in Atchison etc. Ry. Co. v. Grain Co., 68 Kan. 588, 75 Pac.
1052, following rule; United States v. Norris, 222 Fed. 20, 137 C. C. A.
552, suit to set aside patent for fraud against purchaser from patentee
barred after six years ; Irvine v. Elliott, 203 Fed. 112, limitation of actions
applicable t6 double stockholder's liability does not apply to . pending
actions; United States v. Colorado etc. R. Co., 157 Fed. 332, 15
L R. A. (N. S.) 176, 13 Ann. Oas. 893, 85 C. C. A. 27, holding
Federal safety appliance acts controlling railroad company engaged
in interstate commerce within State; St. Louis Cotton etc. Co. v. Amer-
ican Cotton Co., 125 Fed. 199, holding Circuit Court judgment dismissing
suit when there was inadequate service of summons in suit when
pending in State court before removal is reviewable directly by Supreme
Court; Chauncey v. Dyke Bros., 119 Fed. 16, construing Acts Ark.
1895, p.' 217, § 3, relating to mechanics' liens; Weber v. St. Paul City
Ry. Co., 97 Fed. 143, holding personal representative cannot sue for per-
sonal injuries but must bring himself within Gen. Stat. Minn. 1894, § 5913 ;
Doyle V. Negrotto, 124 La. 106, 49 South. 995, applying rule to action to
annul tax titles by minors; Cox^v. Von Ahlefeldt, 105 La. 583, 30 South.
215, holding under Rev. Civ. Code, arts. 940, 1504 and 3542, testamentary
donation confers title defeasible only at suit of forced heir or assigns
brought within five years; Belfast Inv. Co. v. Curry, 264 Mo. 497, 175 S. W.
204, upholding application of ten-year statute to dower rights of widow in
favor of one in possession claiming against widow; Forrester v. Southern
Pac. Co., 36 Nev. 269, 48 L. R. A. (N. S.) 1, 134 Pac. 759, upholding power
of legislature to provide that action for tortious breach of contract survive
death of plaintiff; Lewis v. Pawnee Bill's Wild West Co., 6 Penne. (Del.)
321, 16 Ann. Oas. 90S, 66 Atl. 473, cause of action for personal injuries
barred after one year though xplaintiff removed from State soon as cause
of action accrued; Bowen v. Kirkland, 17 Tex. Civ. 353, 44 S. W. 192,
holding that when pending contests of administration heir conveyed prop-
erty of decedent limitations ran against administrator pending litigation;
Lawson v. Tripp, 34 Utah, 34, 95 Pac. 522, denying that exception in favor
of citizen of State applies to who has held cause of action since its accrual
to citizen acquiring such cause by assignment where barred in other State ;
Perkins v. Pfalzgraff, 60 W. Va. 142, 53 S. E. 922, defense of statute not
denied because grantor of defendant was co-owner of plaintiff where there
has been an ouster; dissenting opinion in Moulton v. Scully, 111 Me. 467,
89 Atl. 961, majority holding that referendum act does not apply to re-
moval of ofl&cers on address to Governor; dissenting opinion in Colonia^l &
U. S. Mtg. Co. V. Northwest Thresher Co., 14 N. D. 165, 116 Am. St. Rep.
642, 8 Ann. Oas. 1160, 70 L. R. A. (N. S.) 814, 103 N. W. 922, majority
holding in action to foreclose mortgage time defendant absent from State
excepted; Bank of Alabama v. Dalton, 9 How. 529, 13 L. Ed. 246, con-
struing statute limiting time for bringing action on judgments obtained
in other States, and applying rule, although person sued became citizen of
State same day as suit brought ; French v. Spencer, 21 How. 238, 16 L. Ed.
99, construing bounty land act, containing no prohibition as to sale of
2 Wheat. 25-31 NOTES ON U. S. REPORTS. 740
land granted under it; United States v. Maillard, 4 Ben. 465, Fed. Cas.
15 J09, enforcing statute of limitations containing no exception as to cases
tainted with fraud; The Sam Slick, 2 Curt. 485, Fed. Cas. 12,282, holding
that where statute provided that lien on vessel should be lost on entry
in any port outside of commonwealth, entry of such port in distress
worked loss of lien ; United States v. Brown, 2 Low. 269, Fed. Cas. 14,665,
as to statute of limitations containing no exception as to persons Tvithout
limits of country; Weeks v. Vassault, 3 Sawy. 217, Fed. Cas. 9393, hold-
ing pendency of administration on estate does not constitute disability in
heir to sue, in absence of express provision in statute; Norton v. De la
Villebeuve, 1 Woods, 164, Fed. Cas. 10,350, holding that ignorance of rights
at time such rights accrued does not remove bar raised by statute of
limitations ; Amy v.j Watertown, 22 Fed. 420, holding statute not suspended
because failure to sue was caused by fraud of defendant; Copp^v. Railway
Co., 50 Fed. 165, holding that where Congress creates new rigit of action
and prescribes no period of limitations, State statutes apply; Morgan v.
Des Moines, 54 Fed. 460, denying infants.' rights beyond statute of limita-
tions where such rights not granted by statute itself; Madden v. Lancaster,
65 Fed. 195, 27 U. S. App. 528, refusing to entertain objection that x>eriod
of limitations prescribed by statute is unreasonably short; Shreve v.
Cheeseman, 69 Fed. 789, 32 U. S. App. 676, construing statute, providing
for taxing costs; Pearsall v. Railway Co., 73 Fed: 940, holding right of
consolidation granted in railroad charters to be vested right, and where
charter reserved to State, right to amend "in any manner not im-
pairing vested rights," such riglrt of consolidation was not excepted; dis-
senting opinion, Stryker v. Commissioners, 77 Fed. 582, 40 U. S. App. 583,
on point that where charter contains unrestricted right of taxation city
may levy special tax for purpose of satisfying judgment ; Boyd Paving Co.
V. Ward, 85 Fed. 35, 55 U. S. App. 742, applying principle in construing
clause of State constitution restricting use of powers by certain classes of
cities; Savings, etc. Co. v. Bear Valley etc. Co., 89 Fed. 40, holding courts
cannot extend life of lien beyond statutory period; United States v. Amer-
ican L. Co., 80 Fed. 320, refusing to make an exception to the running of
the statute, where the steps taken to procure service of process in a suit
commenced, were bona fide but misguided; Bennett v. Worthington, 24
Ark. 493, holding that closing of courts during war does not suspend
running of statute of limitations, unless expressly so provided; Tynan v.
Walker, 35 Cal. 640, 95 Ahl Dec. 157, construing strictly, statute of limi-
tations, and holding f uiiher, that statute will not be held to imply exist-
ence of person against whom it may run; so also in Adams v. Davis, 47
Ga. 341; Baker v. Brown, 18 111. 92, holding that death of debtor cannot
arrest statute of limitations ; Hibernian Banking Assn. v. Commercial Nat.
Bank, 157 111. 538, 41 N. E. 923, construing section of statute of limitations
relative to departure of debtor from State ; Smith v. Stewart, 21 La. Ann.
77, 78, holding that existence of war will not suspend operation of statute
of limitations, unless expressly so provided; Coffin v. Rich, 45 Me. 512,
71 Am. Dec. 663, construing statute changing existing liabilities of indi-
vidual members of corporations, holding courts bound by such statute,
V
741 McIVER V. RAGAN. 2 Wheat. 25-31
except where vested rights impaired; Eriekson v. Johnson, 22 Minn. 383,
holding period of five years, provided in statute, during which judgment
lien must be enforced, not extending by death of judgment creditor; Rob-
ertson V. Alford, 13 Smedes & M. 512, where statute of limitations held not
suspended by injunction, restraining creditor from enforcing claim;
Kilpatrick v. Bryne, 25 Miss. 582, wliere judgment lien declared lost at
end of period of limitation, although execution levied during such period,
but no sale made under it ; t)ozier v. Ellis, 28 Miss. 736, holding that where
statute prescribed period within which action must be brought to recover
money paid, such period commences to run before time of discovery of
fraud; so also in Rogers v. Brown, 61 Mo. 194, and Garrett v. Conklin, 52
Mo. App. 659, to same effect; Toombs v. Hombuckle, 3 Mont. 196, con-
struing statute limiting time for bringing appeals^ in certain cases; Free-
holders V. Veghte, 44 N. J. L. 513, holding that fraudulent concealment
of cause of action cannot affect operation of statute of limitations ; Randall
V. Railroad Co., 107 N. C. 754, 12 S. E. 607, construing statute declaring
presumptions of negligence in certain cases of injury to property; Matter-
son V. Dederkey, 12 R. I. 71, construing statute regulating capacity of
married woman to sue in absence of husband from State; Patton v. Mc-
Clure, Mart. & Y. 345, construing statute providing, in general terms, that
certain contracts shall be in writing; Cocke v. McGinnis, Mart. & Y. 365,
17 Am. Dec. 812, holding that where cases of fraud not excepted from
operation of statute of frauds, courts cannot make exception; Bowen v.
Kirkland, 44 S. W. 192, refusing to engraft an exception upon the law of
limitations as to administrators; Bickle v. Chrisman, 76 Va. 685, 688, hold-
ing mere want of knowledge of creditor insufficient to suspend operation
of statute of limitations; Laidley v. S'mith, 32 W. Ya. 301, 26 Am. St.
Rep. 829, 9 S. £. 211, where statute of limitations held to run against
receiver appointed by court, unless expressly excepted; Woodbury v.
Shackleford, 19 Wis. 60, construing statute limiting period allowed for
redemption of land sold for taxes; dissenting opinion in Buffham v. City
of Racine, 26 Wis. 463, majority holding municipal corporation not subject
to garnishment, under statute providing general remedy by garnishment;
Wrightman v. Boone County, 88 Fed. 436; Lawrence v. Bridleman, 3 Yerg.
502 ; Burdyne v. Mackey, 7 Mo. 378, and Hudson v. Carey, 11 Serg. & R. 14,
following rule.
Limited in Hanger v. Abbott, 6 Wall. 542, 18 L. Ed. 943, holding that
time during which courts were closed during rebellion should be deducted
in computing time limited, although not so provided in statute.
Criticised in Andrews v. Dole, 11 Bank. Reg. 363, 1 Fed. Cas. 683, hold-
ing rule inapplicable to equity courts.
Exceptions to statute of limitations impliedly excluded when not
enumerated. Note, 1 AnxL Gas. 643.
Want of evidence necessary to support title is not disability to sue.
Approved in Hudson v. Carey, 11 Serg. & R. 14, holding statute not
arrested during period between discharge in bankruptcy and reversal of
decree.
2 Wheat. 32-65 NOTES ON U. S. REPORTS. 742
Miscellaneous. Cited in Fry v. Fry, 125 Iowa, 430, 101 N. W. 146, con-
struing Code, § 3276, relating to revocation of wills by subsequent birth of
legitimate child ; Rhode Island v. Massachusetts, 12 Pet. 746, 9 L. Ed. 1269,
to point that United States Supreme Court has jurisdiction over dispute
as to boundary between States
2 Wlieat. 32-45, 4 L. Ed. 177, HUNTER T. BBTANT.
Specific legacy, given to wife by will, la satisfaction of post-nuptial bond
for like amount, unless contrary Intention clearly appear.
Approved in PuUiam v. PuUiam, 10 Fed. 57, 79, Fed. Cas. 11,463a, hold-
ing further discretion is to be allowed executor as to manner in which
funds to be raised.
Marriage settlements. Note, 50 Am. Dec. 371.
Property which may pass under nuncupative will. Note, Ann. Oas.
19120, 646.
Right of creditors or representatives to elect for or against will or
between different provisions of will or statute. Note, 11 L. R. A.
(N. 8.) 381, 883.
Presumption of satisfaction of debt by legacy or devise to creditor.
Note, L. R. A. 1915B, 1177.
Miscellaneous. Cited in Moore v. Hamilton, 4 Fla. 118, to point that
executors are responsible for loss to estate resulting from acts not in ac-
cordance with law, although done in good faith ; Magill v. Brown, 16 Fed.
Cas. 447, to point that disposition of real property by will is subject to
laws of jurisdiction where situated.
2 Wheat. 45-65, 4 L. Ed. 180, DUVAUa ▼. OBAIQ.
Variance between writ and declaration can be taken advantage ot ohXj
by plea in abatement.
Cited in McKenna v. Fisk, 1 How. 247, 11 L. Ed. 119, holding that after
pleading general issue it is too late to take advantage of such variance;
Wilder v. McCormick, 2 Blatchf. 33, Fed. Cas. 17,650, overruling general
demurrer; How v. McKinney, 1 McLean, 320, Fed. Cas. 6749, holding
further as to necessity for demand of oyer of writ ; Prince v. Lamb, Breese,
379, holding such variance not assignable as error; so also in Cruikshank
V. Brown, 5 Gilm. 77, to same effect ; Weld v. Hubbard, 11 111. 674, 17 lU.
530, sustaining plea in abatement; Giles v. Ferryman, 1 Har. & G. 171,
where variance held cured by verdict ; Hite v. Hunton, 20 Mo. 289, denying
right of defendant to take advantage after appearance, of variance be-
tween petition and summons as to names of plaintiffs; Waldo v. Beckwith,
1 N. M. Ill, holding that advantage cannot be taken of variance after plea
to general issue; Phelps v. Spruance, 1 Colo. 414, arguendo; Buford v.
Hickman, Hempst. 234, Fed. Cas. 2114a, holding record omitting writ in-
sufficient.
Distinguished in Wilkinson v. Pomeroy, 10 Blatchf. 529, Fed. Cas. 17,675,
overruling plea in abatement after plea to merits.
N
J43
DUVALL V, CRAIG. 2 Wheat. 45-65
X,
O^ified in Cole v. Peniwell, 6 Blackf . 176, holding quashing of writ to
l>e final judgment which is reversihle on appeal.
Xiahilfty of trnstae on personal covenant is not affected by addition after
blB name of urorda, "a« trustee."
Approved in Peoria Steam Marble Works v. Hickey, 110 Iowa, ^79, 81
N. W. 474, holding receiver personally liable for notes executed without
authority; Knipp v. Bagby, 126 Md. 463, L. R. A. 1915F, 1072, 95 Atl. 60,
holding trustee with power to mortgage trust estate personally liable on
mortgage made in own name ; Carr v. Leahy, 217 ^ass. 440, 105 N. E. 445,
guaranty by trustee of payment of money set forth in certain instrument
renders him personally liable thereon ; dissenting opinion in Stott v. Ruther-
ford, 1 McAr. (D. C.) 12, majority holding that \edse is void when lessors
purport to sign as committee for church, signing their names individually;
dissenting opinion in Crosby v. Andrews, 61 Fla. 587, Ann. Gas. 191SA,
420, 55 South. 67, majority holding that trustees may maintain suit can-
celing deed made by them conveying property they had no right to convey ;
dissenting opinion in Ivey v. Vaughn, 93 S. C. 212, Ann. Gas. 1914D, 900,
43 L. R. A. (N. S.) 377, 76 S. E. 467, majority holding executors not per-
sonally liable on warranties made beyond scope of their authority; Taylor
V. Davis' Admx., 110 U. S. 336, 28 L. Ed. 166, 4 Sup. Ct. 150, enforcing
personal covenant to pay demands against trust estate; Baker v. Biddle,
1 Bald. 422, Fed. Cas. 764, to point that where trustee covenants to per-
form trust, he is liable at law for breach; Benjamin v. Birmingham, 50
Ark. 441, 8 S. W. 186, where defendant held liable on contract executed by
him as trustee for himself and codef endants ; Mitchell v. Hazen, 4 Conn.
514, 515, 10 Am. Dec. 176, where grantor conveyed ''as administrator,"
deed containing covenant of seisin; so also in Belden v. Seymour, 8 Conn.
24; Branch v. Branch, 6 Fla. 324, to point that in suit by executor in repre-
sentative character he must describe himself and make his claim as executor
only; Wilson v. FrideAberg, 22 Fla. 136, 143, holding that where widow
makes personal covenant "as executrix," jointly with husband married
subsequently to testator's death, husband only is liable; Cleaveland v.
Stewart, 3 Ga. 296, 297, holding trustees of college personally liable on
contract for services of teacher, executed by them "as trustees"; Mcars v.
Morrison, Breese, 224, holding agent personally liable for breach of cove-
nants in deed signed by him only "as agent"; Bloom v. Wolfe, 50 Iowa,
^^, where trustee executed deed containing covenant of warranty; Offutt
y. Ayrcs, 7 T. B. Mon. 357, as to personal liability of maker of note, acting
^ agent" for another; Simonds v. Heard, 23 Pick, 125, 34 Am. Dec. 43,
^ *o personal contract executed by bridge commissioners, as such ; Mui-phy
\ ^Hce, 48 Mo. 250, as to acts of corporation officers in executing deed
^^^h >^arranty ; Bryson v. Lucas, 84 N. C. 685, 37 Am. Rep. 686, where bond
executed and signed "H. S. L. for C, president of company"; Cadell v.
r^^^ix, 99 N. C. 547, 6 S. E. 402, to point that deed executed by attorney
^ ^^ct should purport on its face to be deed of principal, and principal's
^^fi should be signed by attorney; Fish v. Ross, 2 Hill, 295, 296, as to
"^"ility of person signing promissory note "as agent"; McDowall v. Reed,
2 Wheat. 45-65 NOTES ON U. S. REPORTS. 744
28 S. C. 469, 6 S. E. 301, and in Patterson v. Craig, 1 Baxt. 293, tinder
facts similar to those in principal case ; Carr v. Branch, 85 Va. 605, 8 S. E.
480, where bond signed by maker "as executor," but trust deed to secure
bond executed in individual capacity; North v. Henneberry, 44 Wis. 317,
as to personal liability on covenant, of attorney in fact executing deed in
his own^name; East Hartford v. Pitkin, 8 Conn. 401; Jones v. Henderson,
149 Ind. 463, 49 N. E. 444; McBean v. Morrison, 1 A. K. Marsh. 646,
arguendo. '
Distinguished in Glenn v. Allison, 58 Md..529, where terms of mortgage
executed by trustee showed no intention to assume personal liability;
Underbill v. Gibson, 2 N. H. 354, 9 Am. Dec. 84, holding that where eon-
tract is under seal, and name of principal disclosed, principal alone is
bound; Day v. Brown, '2 Ohio, 348, where by covenant, executors bound
themselves to warrant and defend "as far as executors are bound by law
to do" ; Staples v. Staples, 85 Va. 81, 7 S. E. 201, holding that where order
accepted by representative is rejected in creditor's suit, there can ^e no
personal decree against representative, debt having been asserted in bill as
due from estate.
Personal liability of executor or administrator on covenant in deed
to realty of decedent. Note, Ann. Gas. 1914D, 904.
Individual liability of personal representatives under original con-
tracts founded on new considerations. Note, 1 Ann. Oas. 770.
Personal liability of execptor, administrator or trustee on covenant in
deed. Note, 43 L. B. A. (N. 8.) 380.
Liability of one signing contract in representative capacity. Note,
42L. B. A. (N. S.) 66,62.
Effect of qualifying words "as executor" and "as administrator."
Note, 15 L. B. A. 850.
Covenant against encumbrances by covenantors, includes several, as well
as joint enctunbrances.
Approved in Thorley v. Pabst Brewing Co., 179 Fed. 346,. 102 C. C. A.
522, lessee can recover only nominal damages when evicted because lessor
did not have full authority to lease, such fact being known to lessee ; Smith
V. Hogue, 19 N. D. 342, 123 N. W. 829, covenant of warranty holds against
mortgage subsequently acquired by vendor.
Distinguished in Fields v. Squires, Deady, 372, Fed. Cas. 4776, holding
that assignee of covenant for title may enforce covenant against heir of
covenantor, although such covenant made jointly by ancestor and another.
Whether general warranty will sustain action by remote grantee
evicted under encumbrance, where deed also contains covenants
against encumbrances not running with land. Note, 26 L. B. A.
(N. 8.) 1096.
If covenantee unable to obtain possession In consequence of poasesslon in
person (daiming under older title, covenant treated as broken.
Approved in McConaughey v. Bennett's Exrs., 60 W. Va. 184, 40 S. E.
545^ holding after breach of covenant of warranty it no longer runs with
745 COOUDGE v. PAYSON. . 2 Wheat. 66-76
land; Dickson v. Briggs, 12 Ala. 220, to point that covenant is broken when
made if encumbrances exist; Dnroe v. Stephens, 101 Iowa, 361, 70 N. W.
610, holding further that special warranty to defend against all persons
claiming "through or by" grantor did not affect liability under general
covenant against encumbrances; Surget v. Arighi, 11 Smedes & M. 97, 49
Am. Dec. 47, holding that eviction by stranger does not constitute breach;
Glenn v. Thistle, 23 Miss. 61, where delivery of seisin by sheriff to plaintiff
in ejectment held to constitute breach ; Daggett v. Ayer, 65 N. H. 83, 18 Atl.
170, holding that cause of action accrues immediately upon delivery of
deed; Beddoe v. Wadsworth, 21 Wend. 12^, holding further that para-
mount title must be alleged and proved; Bhattuck v. Lamb, 65 N. T. 509,
22 Am. Bep. 663, where land in possession of third person under paramount
title; but see dissenting opinion, p. 513, citing note to principal case on
point that "some particular act must be shown," whereby plaintiff dis-
turbed in possession ; Orist v. Hodges, 3 Dev. 201, following rule ; Hodges v.
Latham, 98 N. C. 243, 2 Am. St. Rep. 834, 3 S. E. 496, holding, however,
burden of showing paramount title is on covenantee; so also in Hodges v.
Wilkinson, 111 N. C. 60, 15 S. E. 942; Randolph v. Meeks, Mart. & Y. 62,
under facts similar to those in principal case; Sheffey's Exr. v. Gardiner,
79 Va. 317, holding that where land already in possession of third person
having title, covenantee need not allege and prove entry; in Rex v. Creel,
22 W. Va. 375, uftder similar facts ; Bennett v. Keehn, 67 Wis. 162, 164,
30 N. W. 115, 116, holding that mere knowledge of mortgage on part of
covenantee, will not relieve covenantor from liability; Mitchell v. Warner,
5 Conn. 521, 522, Whitney v. Dinsmore, 6 Cush. 129, arguendo. Note to
the principal case, p. 62, declares . measure of damages for breach of the
covenant to be the amount of purchase money with interest from time of
purchase, and this rule has ^ecn applied in following cases: Ogbum v.
Ogbum, 3 Port. 129, Roebuck v. Dupuy, 2 Ala. 538, Logan v. Moulder,
1 Ark. 323, 33 Am. Dec. 345, Ela v. Card, 2 N. H. 178, Baldwin v. Munn,
2 Wend. 405, 20 Am. Dec. 630, Kinney v. Watts, 14 Wend. 41, Funk v.
Voneida, 11 Serg. & R. 114, 14 Am. Dec. 622, Hunt v. D'Orval, Dud. 183.
Distinguished in Peters v. Bowman, 98 U. S. 59, 25 L. Ed. 92, denying
right of vendee to controvert vendor's title in action to enforce vendor's
lien, there having been no eviction, actual or constructive; Beebe v. Swart-
wout, 3 Gilm. 181, where covenantee did not aver that third person in
possession claimed under good title; Allis v. Nininger, 25 Minn. 527, hold-
ing covenant not brbken by mere existence of superior title in third person,
without attempt to assert it; Merritt v. Byers, 46 Minn. 76, 48 N. W. 417.
where covenant qualified by excepting specified mortgage ; Dennis v. Heath,
11 Smedes & M. 218, 49 Am. Dec. 62, holding that mere judgment in eject-
ment, without eviction, is not breach.
Breach of covenant of warranty by eviction. Note, 122 Am. St. Rep.
857.
«
2 Wheat. 66-76, 4 L. Ed. 185, OOOLIDOE t. PATSON.
Pre-existing debt is good consideration for acceptance of blU of eTChange
if transaction not tainted with fraud.
2 Wheat. 66-76 NOTES ON U. S. REPORTS. 746
Approved in Barnsdall v. Waltemeyer, 142 Fed. 419, promise to accept
bill not in existence but subsequently drawn in favor of promisee, who
takes it for pre-existing debt, is good acceptance; Riley v. Anderson, 2
McLean, 593, Fed. Cas. 11,835, holding precedent debt good consideration
for assignment of promissory note; so also in Smith v. Babcock, 2 Wood.
& M. 288, Fed. Cas. 13,009; Brush v. Scribner, 11 Conn. 403, 29 Am. Dec.
316, where note was transferred to bona fide holder, although void as be-
tween original parties ; so also in Johnson v. Barney, 1 Iowa, 535 ; Swift v.
Tyson, 16 Pet. 20, 10 L. Ed. 872, Jewett v. Hone, 1 Woods, 634, Fed. Cas.
7311 , Garretson v. Bank, 39 Fed. 167, arguendo.
Distinguished in Nevitt v. Bank, 1 Freem. (Miss.) 439, wher^ note taken
fraudulently for supposed precedent debt, which did not exist; so also in
Warden v. Howell, 9 Wend. 172.
Denied in Ontario Bank v. Worthington, 12 Wend. 600, holder cannot
sue acceptor where bill taken for pre-existing debt and equities prevent
recovery by drawer from acceptor.
Letter written wltbin reaaonaUe time before date of bill, describing It
accurately and promising to accept It, Is, If relied upon, acceptance.
Apprc^ved in Bank of Havelock v. Western Union Tel. Co., 141 Fed. 525,
applying rule to action by mortgagees against telegraph company for loss
of lien caused by receipt of false telegram over telephone; James v. E. G.
Lyons Co., 134 Cal. 193, 66 Pac. 211, holding, where defendant's letter
offering to accept firm's draft is shown bank which on strength of such
letter purchases Rrm's draft on defendant, latter is liable; Fowler v. Mc-
Pree, 13 Colo. App. 191, 56 Pac. 1120, admitting proof that drawee held
property of maker to pay draft; Wells v. Western Union Telegraph Co.,
144 Iowa, 620, 138 Am. St. Rep. 317, 24 L. R. A. (N. S.) 1046, 123 N. W.
377, telegraph company liable for delivery of forged message to bank
guaranteeing payment of check; Putnam Nat. Bank v. Snow, 172 Mass.
576, 52 N. E. 1079, holding action lies for breach of oral promise to accept
an existing draft; Bank of Seneca v. First Nat. Bank, 105 Mo. App. 726,
78 S. W. 1093, where bank issues letter of credit obligating itself to pay
bearer's checks to certain amount, checks drawn by bearer and cashed by
bank which had no notice of letter cannot be applied in extinguishment of
amount named in letter; Bank of Morganton v. Hay, 143 N. C. 332, .334,
55 S. E. 813, 814, applying rule by analogy to liability of principal for acts
of agent; Polk v. Williams, 102 Tenn. 373, 52 S. W. 35, holding party
representing that he owes third party is estopped to deny such indebted-
ness where another on faith of such representations accepts an order on
him ; Milmo Nat. Bank v. Cobbs, 53 Tex. Civ. 6, 115 S. W. 348, knowledge
of holder of draft of lack of funds to meet it no defense to good ac-
ceptance; Ogden V. Gillingham, 1 Bald. 44, 45, Fed. Cas. 10,456, although
drawee discharged in bankruptcy between date of promise and date of
draft; Bayard v. Lathy, 2 McLean, 463, Fed. Cas. 1131, to point that bill
need not be in esse at time letter of acceptance written ; Russell v. Wiggin,
2 Story, 237, 240, Fed. Cas. 12,165, awarding judgment for damages sus-
tained by reason of refusal to accept; Garretson y. Bank, 39 Fed. 166, 167,
747 COOLIDGE v. PAYSON. 2 Wheat. 66-76
where such previous acceptance was by telegram; so also in Whilden v.
Bank, 64 Ala. 29, 38 Am. Rep. 8; Wakefield v. Greenliood, 29 Cal. 601,
holding further that in action against drawee who has promised to accept,
he is sued as acceptor, and a^eptance alleged ; Bancroft v. Denny, 5 Houst,
13, on point that verbal acceptance of bill not yet drawn will bind ac-
ceptor; Nelson v. Bank, 48 111. 38, 95 Am. Dec. 511, and Vance v. Ward,
2 Dana (Ky.), 96, under facts similar to those in principal case; Davidson
V. Keyes, 2 Rob. 257, 38 Am. Dec. 212, holding further that where authority
is unconditional, drawee cannot defend on ground that authority was
abused; Nisbett v. Galbraith, 3 La. Ann. 691, holding that possession by
liolder of bill, of letter indorsed by drawer, is prima facie evidence that
bill was taken on faith of letter ; First National Bank v. Clark, 61 Md. 405,
406, 48 Am.«Rep. 115, 116, on point that telegram, to constitute acceptance,
must suflBciently describe draft; Murdock v. Mills, 11 Met. 10, following
rule; Pierce v. Kittridge, 115 Mass. 376, holding that oral promise to
accept, if relied upon, is binding on acceptor; so also in Williams v.
Winans, 14 N. J. L. 343, to same effect; Overman v. Bank, 30 N. J. L. 69,
holding, however, that holder must show that bill was taken on faith of
such promise; Parker v. Greele, 2 Wend. 548, 5 Wend. 420, 422, following
rule; Ulster County Bank v. McFarlan, 3 Denio, 557, to point that bill
"must answer description in letter promising to accept; Nimocks v. Woody,
97 N. C. 5, 2 Am. St. Rep. 270, 2 S. E. 251, where week held to be reason-
able time in which to draw, in absence of proof of damage to drawee by
delay; Putnam Bank v. Snow, 52 N. E. 1079, to point that oral acceptance
suffices, case upholding acceptance by letter as valid; Henrietta Bank v.
State Bank, 80 Tex. 651, 26 Am. St. Rep. 774, 16 S. W. 321, as to acceptance
by telegram; Baring v. Lyman, 1 Story, 414, Fed. Cas. 983; dissenting
opinion in Brush v. Scribner, 11 Conn. 403, 29 Am. Dec. 316, Talmadge v.
Williams, 27 La. Ann. 655, Carnegie v. Morrison, 2 Met. 406, Bissell v.
Lewis, 4 Mich. 459, Woodard v. Griffiths-Marshall etc. Co., 43 Minn. 262,
45 N. W. 433, Lonsdale v. Bank, 18 Ohio, 140, Steman v. Harrison, 42 Pa.
St. 58, 82 Am. Dec. 492, arguendo.
Distinguished in Boyce v. Edwards, 4 Pet. 121, 122, 7 L. Ed. 803, Cassell
V. Dows, 1 Blatchf. 340, 341, 342, Fed. Cas. 2502, Exchange Bank v. Hub-
bard, 62 Fed. 115, 26 U. S. App. 133, on ground that letter relied upon was
written an unreasonable time before bill was drawn and described it only
in general terms; Morse v. Bank, 1 Holmes, 215, Fed. Cas. 9857, holding
verbal agreement to pay check, where there are no funds in hands of
drawee, is void as being within statute of frauds; Kennedy v. Geddes, 8
Port. 267, 33 Am. Dec. 290, Plummer v. Lyman, 49 Me. 233, and State Bank
V. Young, 5 McCrary, 14, 14 Fed. 890, under facts; Wildes v. Savage, 1
Story, 27, Fed. Cas. 17,653, and Franklin Bank v. Lynch, 52 Md. 278, 279,
36 Am. Rep. 377, 378, denying application of rule to drafts payable^ at
sight; CarroUton Bank v. Tayleur, 16 La. 499, 35 Am. Dec. 221, holding
that where letter allowed credit only upon condition drawer was not bound
where bill drawn and sold to third person ; Von Pheel v. Sloan, 2 Rob. 149,
38 Am. Dec. 208^ where bill in question did not answer description iu letter ;
Lewis V. Kramer, 3 Md. 289, where party discounting bill did not rely
2 Wheat. 76-118 NOTES ON U. S. REPORTS. 748
upon letter ; Exchange Bank v. Rice, 98 Mass. 289, where letter promising
to accept was written after discount of bill.
Duty of bank giving letter of credit to accept and pay bills drawn on
it. Note, 4 £. E. 0. 621. •
2 Wheat. 76-99, 4 L. Ed. 189, THE DOS HEBMAKOS.
Evidence to acqLjoit or condemn most com«, tn first instance, from papers
and crew of captured vesseL
Cited in United States v. Areola, 24 Fed. Cas. 850, holding uncontradicted
testimony of master, as to residence, is sufficient evidence of citizenship at
time vessel captured ; United States v. Cement, 27 Fed. Cas. 297, decreeing
forfeiture of vessel in absence of testimony explaining fraudulent character
of papers.
Neutral owner, who endeavors to cover enemy's property, forfeits his
own as penalty.
Cited in United States v. Brig Lilla, 2 Cliff. 187, Fed. Cas. 15,600, re-
fusing to grant order for further proofs of neutrality (see also s. c, 2
Sprague, 184, Fed. Cas. 8348); The Revere, 2 Sprague, 118, Fed. Cas.
11,716, denying right of master to defend on ground that he was not warned
of existence of blockade, ship's documents having deliberately presented
false destination; The Cuba, 2 Sprague, 175, Fed. Cas. 3457, refusing to
admit further proof, where log falsified with intention of deceiving bel-
ligerent cruisers as to course taken by vessel.
Actual removal for lawful purpose, and acquisition of domicile elsewbere
are necessary to effect expatriation.
Referred to in Comitis v. Parkerson, 56 Fed. 560, discussing general
subject.
Miscellaneous. Cited in United States v. The Wren, 28 Fed. Cas. 788,
but application doubtful ; The Rita,' 89 Fed. 768, as instance of practice in
action for recovery of prize money.
2 Wlieat. 100-111, 4 L. Ed. 194, BEVEBLT V. BROOKE.
Master hiring slaves to act as seamen is required to exercise only ordinary
diligence, and is not liable to owner for escape in foreign port.
Distinguished in Macon etc. R. R. Co. v. Holt, 8 Ga. 162, holding carrier
liable in conversion for taking slave on cars and transporting him as
passenger, without consent of master, although in good faith.
2 Wlieat. 111-118, 4 L. Ed. 197, McOOITL v. US ELAMP.
Entry in day-book of memorandum of sale and delivery is competent after
death of person making entry, to prove sale and delivery.
Cited in Leighton v. Manson, 14 Me. 211, 212, holding, however, that it
is in discretion of court to determine whether, from nature of goods, it
were possible for such sale to be within exclusive knowledge of person
749 UNITED STATES v. SHELDON. 2 Wheat. 119-122
making entry; In re Connaway, Receiver of Moscow Nat. Bank, 178 U. S.
435, 44 L. Ed. 1139, 20 Sup. Ct. 956, arguendo.
Party's books of account as evidence in own favor. Note, 62 L. B. A.
607.
Mis<4llaneou8. Cited in Brown v. Fletcher, 140 Fed. 642, where personal
representative of deceased complainant in Federal suit took no steps to
review, but brought suit in another jurisdiction for some relief, defendant
is entitled to dismissal for abandonment.
2 Wheat. 119-122, 4 L. Ed. 199, UNITED STATES ▼. SHEIJ>ON.
Penal statutes are to l>e construed strictly.
Approved in United States v. Biggs, 167 Fed. 271, contract to enter
public lands under timber and stone act where money is advanced by an-
other who is to get title, not unlawful; United States v. Booker, 98 Ped.
294, holding evidence that bank president signed false reports is sufficient
to convict under Rev. Stats., § 5209, unless it is shown that he also made
entries or ordered them made; Dooley v. Jackson, 104 Mo. App. 32, 78
S. W. 334, statutes making election bets gaming and authorizing suit
against stakeholder to recover money bet do not apply to primary elec-
tions; Ex parte Brown, 21 S. D. 519, 114 N. W. 305, dru^ist selling
packages of medicinal preparations not guilty of violating pure food law
of 1907; United States v. Chase, 135 U. S. 261, 34 L. Ed. 120, 10 Sup. Ct.
758, and United States v. Wilson, 58 Fed. 771, holding term "writing" not
to include term "letter," within meaning of act prohibiting sending ob-
scene matter through mails; Ferrett v. Atwill, 1 Blatchf. 156, Fed. Cas.
4747, holding that two or morb persons cannot join in action to recover
penalty, unless expressly so provided in statute; United States v. Clayton,
2 Dill. 226, Fed. Cas. 14,814, holding Governor of State not "officer of elec-
tion," within meaning of act, making it criminal for any such officer to
falsify returns; United States v. Whittier, 6 Dill. 39, Fed. Cas. 16,688,
where iict prohibiting mailing of obscene matter held not to apply to case
of letter written, in response to decoy letter, to person who had no ex-
istence; United States i^. Reese, 5 Dill. 413, Fed. Cas. 16,137, holding lands
of Indian tribe not embraced within term "United States lands," as used
in statute providing penalty for cutting timber on such lands; United
States V. Garretson, 42 Fed. 25, construing statute prohibiting cutting of
timber on government lands with intent to use for other than naval pur-
I)oses, holding that such intent must be alleged in indictment; United
States V. Kimball, 26 Fed. Cas. 785, where act prohibiting sending of
obscene matter through mails, held not to extend to letter sent by passenger
on train; Daggett v. State, 4 Conn. 64,«10 Am. Dec. 101, construing statute
reflating placing of chimneys in wooden structures; State v. Brown, 16
Conn. 57, where offense consisting in erection of certain buildings, held
not to extend to continuance of such buildings already erected; People v.
Braman, 30 Mich. 467, on point that threat to call person as witness in
criminal case is not within meaning of statute punishing "threats to accuse
another of crime with intent to extort money"; State v. Schuchmann, 133
2 Wheat. 123-143 NOTES ON U. S. REPORTS. 750
Mo. 124, 33 S. W. 38, as to necessity for accuracy in description of charge
. in indictment ; Murray v. State, 21 Tex. App. 633, 67 AnL Sep. 629, 2 S. W.
762, quashing information charging malicious mischief in injuring loeo-
motive, statute defining such offense having reference only to injuri<>s to
agricultural products or property; Rawson v. State, 19 Conn. 299,
arguendo.
Distinguished in United States v. McArdle, 2 Sawy. 373, Fed. Cas.
15,653, under facts.
Explained and distinguished in United States v. Huggett, 40 Fed. 638,
construing statute prohibiting sending of obscene matter through mails,
and denying right of defendant to be discharged because of reasonable
doubt as to intent of statute.
Legal meaning of "otherwise." Note, AmL Cas. 19160, 645.
2 Wheat. 123-131, 4 L. Ed. 200, THE MABT.
Where enemy's vessel Is nantuaed by one privateer and subaeqaently dis-
possessed by another, first captor has superior claim to prise.
Approved in Eads v. Brazelton, 22 Ark. 509, 79 Am. Dec. 96, holding
that finder of property lost or abandoned is entitled to protection from
interference of third persons with his possession.
2 Wheat. 132-143, 4 L. Ed. 202, THE BAN PEDBO.
Writ of error Is confined to cases at common law, and brings up only the
law.
Approved in Nashville Ry. & Light Co. v. Bunn, 168 Fed. 865, 94 C. C. A.
274, suit against receiver of street railway for personal injuries is review-
able on appeal only; Thomson v. Travelers' Ins. Co., 161 Fed. 868, 89
C. C. A. 61, suit against insurance company for indemnity against injury
of employees b/ employee is equitable action and cannot be reviewed on
writ of error ; United States Fidelity & Guaranty Co. v. Shirk, 7 Ind. Ter.
85, 103 S. W. 774, applying rule to appeal to United States Court of Ap-
peals in Indian Territory; Holmes v. Jennison, 14 Pet. 629, 10 L. £<L 628,
holding that writ of error lies to State court to revise proceedings in
habeas corpus; Walker v. Dreyille, 12 Wall. 442, 20 L. Ed. 480, refusing
writ of error in proceedings to foreclose mortgage, although by code of
Louisiana such proceeding is not one at common law; Dower v. Richards,
161 U. S. 664, 88 L. Ed. 307, 14 Sup. Ct. 455, denying power of Supreme
Court to review judgment of State court, upon matter of fact, in action of
ejectment; Welden v. Legate, 1 Pinn. 289, applying rule in territorial
courts, and denying writ of error in equity case ; Howes v. Buckingham, 13
Wis. 444, State court applying rule, and denying writ in proceedings to
establish trust.
Appeal Is confined to admiralty and equity cases, and brings up both fact
and law.
Approved in Nelson v. Lowndes County, 93 Fed. 541, holding review of
equity suits is by appeal; Parish v. Ellis, 16 Pet. 453, 10 L. Ed. 1023,
^^ THE ARIADNE. 2 Wheat. 143-148
K^^^^
5fgj^^**^ right of appeal from judgment rendered in proceedings for as-
Jisj^^nt of dower; Stevens v. Clark, 62 Fed. 322, 18 U. S. App. 584,
Gii^^^^ing appeal from judgment in action on contract; United States v.
flf ^^^> 1 Idaho, 366, applying rule in territorial court, and denying right
ilS», ^^al from judgment in action on bond; Souter v. Baymore, 7 Pa. St.
mi^:^5^*^ Ahl Dec. 519, to point that new allegations and proofs are ad-
. <^^le on appeal; so also in Nickels v. Griffin, 1 Wash. Ter. 396; Merrill
^ " 16 Wall. 342, 21 L. Ed. 499, and Murdock v. Memphis, 20 Wall.
L. Ed. 439, arguendo.
"Vhen word "purview^ is used in statute it is Intended to designate the
enacting part of the act.
Approved in State v. Schlicker, 55 Ind. App. 321, 103 N. E. 808, act
repealing all provisions coming within "its purview" refers to enacting
part of statute.
Citation is necessary if appeal n%t made duilng term at which decree
rendered.
Cited in Hewitt v. Filbert, 116 U. S. 143, 29 L. Ed. 582, 6 Sup. Ct. 319,
affirming Villabolos v. United States, 6 How. 90, 12 L. Ed. 356, dismissing
appeal where citation not served within statutory period; Credit Co. v.
Railway Co., 128 U. S. 261, 32 L. Ed. 449, 9 Sup. Ct. 108, to point that
appeal taken at such subsequent term is not perfected until presented to
court rendering final decree.
Bond is necessary to regularity of appeal.
Cited in Hayford v. Griffiths, 3 Blatchf. 36, Fed. Cas. 6263, holding such
security necessary, although execution has issued on decree in lower court ;
Providence etc. Ins. Co. v. Wager, 37 Fed. 61, following rule.
Miscellaneous. Cited in Folger v. The Robert G. Shaw, 2 Wood. & M.
540, Fed. Cas. 4899, as to practice on appeal generally; Ricks v. Hall, 4
Port. 180, but application doubtful.
2 Wheat. 143-148, 4 L. Ed. 205, THE ABIADNE.
Sailing under enemy's license constitutes, per se. Illegal act, wblcli subjects
property to confiscation.
Approved in The Adula, 176 U. S. 379, 44 L. Ed. 513, 20 Sup. Ct. 445,
following rule ; The Pedro, 175 U. S. 368, 44 L. Ed. 200, 20 Sup. Ct. 143,
holding fact that enemy's ship is insured by neutral underwriters is im-
material; The Alliance, Blatchf. Pr. 264, Fed. Cas. 245, and in The Ship
Gondar and Cargo, Blatchf. Pr. 268, Fed. Cas. 5526, decreeing forfeiture
of vessels captured with licenses and clearance papers issued from block-
aded port; The Schooner Amado, Newb. 405, Fed. Cas. 12,005, applying
rule to case 4)f vessel sailing under enemy's flag; Craig v. Insurance Co.,
1 Pet. C. C. 417, Fed. Cas. 3340, holding void policy of insurance on vessel
Bailing under enemy's license; So also in Colquhoun v. Insurance Co., 15
Johns. 353.
2 Wheat. 148-195 NOTES ON U. S. REPORTS. 752
Distinguished in didsenting opinion in The Adiila, 176 Ui S. 396, 397,
44 L. Ed 619, 20 Sup. €t. 439, majority following rule ; The Sarah Starr,
Blati^hf . Pr. 85, Fed. Cas. 12,352, holding that mere fact that vessel has
clearance papers issued by enemy is not justifiable cause for seizure.
Criticised in Coolidge v. Inglee, 13 Mass. 40, holding possession of
Cfucmy's license is not prima facie illegal, hence grant of such license is
good consideration for promissory note.
■
Miscellaneous. Referred tq in The City of Norwich, 1 Ben. 104, Fed.
Cas. 11,202, discussing jurisdiction of Admiralty Courts.
2 Wheat. 148^160, 4 L. Ed. 206, THE WILUAM KING.
Acts done in fraud of law are to be considered as done in violation of it;
applied tn embarffo law.
Approved in Curley v. United States, 130 Fed. 11, 64 C. C. A. 369, one
who falsely impersonates another at ^ivil service examination is guilty of
conspiracy to defraud within Rev. Stats., § 5440 ; Hahn v. Salmon, 10
Sawy. 198, 20 Fed. 811, holding void, execution on judgments confessed
prior to making assignment, for purpose of preferring certain creditors;
United States v. One Hundred and Twenty-nine Packages, 27 Fed. Cas.
288, holding that where party fraudulently mixes goods prohibited by
revenue act with those not prohibited, whole will be forfeited.
Modified in Lee v. Lee, 8 Pet. 50, 8 L. Ed. 868, holding that question of
intent is one for jury.
2 Wtidat. 161-160, 4 L. Ed. 209, THE FOBTUNA.
Prize — ^destitution. — [Iioft open to botli partien for further proof.]
Cited in The Venus, 5 Wheat. 130, 5 L. Ed. 51, decreeing, restitution,
where, upon further proof, it appeared that defect in ship's papers was
result of mistake; The Adula, 89 Fed. 361, on point that spoliation of
ship's papers affords strong presumption of guilt.
2 Wheat. 109-177, 4 L. Ed. 211, THE BOTHNEA AND JAHNSTOFF.
In absence of evidence of collusion, Tessel will be condemned to captors.
Distinguished in The George, 2 Wheat. 283, 4 L. Ed. 240, where evidence
of fraud conclusive, and vessel condemned to United States.
2 Wheat. 178-195, 4 L. Ed. 214, I.AIDLAW Y. OBaAN.
Equity will not relieve because of concealment of extrinsic circiUDBtances
where means of information open to both parties.
Approved in Cunningham v. Pettigrew, 169 Fed. 339, 94 C. C. A. 457,
applying rule to joint purchasers of mining property; United States v.
Robbins, 157 Fed. 1001, title to coal land secured by entrymen for others
who could not acquire it themselves is secret trust subject to cancellation;
Files V. Rankin, 153 Fed. 541, 82 C. C. A. 491, statements that debtor is
insolvent and claim will soon be outlawed are misrepresentations amounting
to fraud warranting rescission of sale of judgment; Files v. Brown^ 124
763 LAIDLAW v. ORGAN. 2 Wheat. 178-196
Fed. 141, applying principle to sale of judgment; Stackpole v. Hancock,
40 Fla. 378, 45 L. R. A. 814, 24 South. 919, applying rule to knowledge by
vendee of minerals on vendor's lands; Oliver v. Oliver, 118 Ga. 366, 371,
46 S. E. 233, 236, holding when director purchases share from stockholder
at 110, concealing fact that there is contemplated sale of entire plant of
company which makes stock worth 185, shareholder may rescind sale;
Culton V. Asher, 149 Ky. 665, 149 S. W. 949, purchaser of timber lands is
under no obligation to disclose facts enhancing value of property to vendor
who has equal Opportunity to investigate; Chicora Ter. Co. v. Duman, 91
Md. 169, 60 L. B. A. 401, 46 Atl. 351, holding failure of debtor to inform
creditor of agreement increasing value of stock held as collateral does not
bar specific performance of contract settling debt; Conway Nat. Bank v.
Pease, 76 N. H. 329, 82 Atl. 1073, one who permits another to act upon
his forged signature as genuine is guilty of fraud if such other not negli-
gent ; Rose v. Barclay, 191 Pa. St. 699, 46 L. B. A. 392, 43 Atl. 387, holding
concealment of declaration of dividend does not avoid sale of stock;
Crompton v. Beedle, 83 Yt. 294, 296, 296, Ann. Oas. 1912A, 399, 30 L. B. A.
(N. S.) 748, 76 Atl. 333, 334, vendor may rescind sale of farm secured by
concealment by vendee of fact that it contained valuable deposits of stone,
vendor never having seen property; Kowalke v. Milwaukee Elec. Ry. &
Light Co., 103 Wis. 478, 74 Am. St. Rep. 880, 79 N. W. 764, denying ex-
istence of mutual mistake as to pregnancy of woman injured by car, so as
to set aside release; dissenting opinion in Rhode Island v. Massachusetts,
14 Pet. 274, 10 L. Ed. 463, majority ruling in favor of entertaining bill to
revise award of arbitrators, fixing boundary, on ground of mistake; Doyle
V, Railway Co., 147 U. S. 428, 37 L. Ed. 230, 13 Sup. Ct. 339, to point that
in absence of fraud or deceit, lahdlord is not responsible for injuries
happening to tenant by reason of snow slide; Blydenburgh v. Welsh, 1
Bald. 337, Fed. Cas. 1583, holding purchaser not bound to answer ques-
tions of seller as to state of market; Van Arsdale v. Howard, 5 Ala. 602,
where person receiving credit from another, held not bound to communicate
fact of existence of recorded mortgage on property given as security;
Carey v. Railway Co., 6 Iowa, 366, on point that equity will set aside con-
veyance, where material fact exclusively within knowledge of one party,
and other has not means of information ; Jenkins v. Simmons, 37 Kan. 503,
15 Pac. 626, refusing to confirm mortgage on homestead at instance of
mortgagee who was ignorant of law requiring wife to join in execution of
such mortgage; Baldwin v. Collins, 9 Rob. (La.) 472, holding carrier liable
for loss of goods to extent of shipper's valuation, where latter ignorant of
rule that former will not be liable, unless value disclosed at time of ship-
ment ; Prescott v. Wright, 4 Gray, 464, holding that question as to whether
grantor guilty of fraud, is for jury ; Junkins v. Simpson, 14 Me. 367, hold-
ing void a sale of property on which there was unrecorded mort^aj^e, ven-
dee having no means of knowledge regarding it; Beninger v. Corwin, 24
N. J. L. 261, holding that warranty of soundness of horse sold is not im-
plied in law, from fact that price of sound horse is paid; Dambmann v.
Schulting, 76 N. Y. 64, applying rule in refusing to set aside release; Had-
1—48
r
\
2 Wheat. 178-195 NOTES ON U. S. REPORTS. 754
ley V. Clinton etc. Co., 13 Ohio St. 508, 82 Am. Dec. 469, following prin-
cipal case in svibmitting to jury, question whether vendor guilty of fraud
in concealing latent defect in goods sold; Bayard v. Shunk, 1 Watts & S.
100, 37 Am. Dec. 448, 449, holding that payment in current bank notes
discharges d^bt, although notes rendered worthless by previous failure of
bank, of which both parties ignorant; Kintzing v. McElrath, 5 Pa. St.
469, following rule; Hersey v. Keembortz, 8 Pa. St. 132, refusing to set
aside deed, although grantor, at time of sale, suspected that tract con-
veyed was smaller than described in deed; Hazlett v. Powell, 30 Pa. St.
298, holding lessor not bound to communicate to lessee, at time of lease,
knowledge that adjoining owner intends to build wall which will cut off
light ; Handy v. Waldron, 18 R. I. 672, 49 Am. St. Rep. 798, 29 Atl. 146, to
f>oint that vendor will be liable to action for deceit for making positive
false statements as to value of goods sold; Union Bank v. Osborne, 4
Humph. 415, holding bank not bound to communicate to accommodation
indorser of note, at time of purchase from him, knowledge that previous
indorser was insolvent; Terrell v. Kirksey, 14 Ala. 212, and Lamar v.
Scales, 71 Wis. 172, 36 N. W. 866, following rule.
Distinguished in Stewart v. Wyoming etc. Co., 128 U. S. 388, 32 L. Ed.
441, 9 Sup. Ct. 103, holding that where vendor suppresses material facts
which he is bound to disclose, equity will set aside sale; The Clandeboye,
70 Fed. 634, 635, 636, 26 U. S. App. 453, denying application where, owners
of vessel having made contract for salvage, another salvor, having knowl-
edge of such contract, proceeds to wreck and contracts with master for
larger amount ; Bunnel v. Stoddard, 4 Fed. Cas. 679, setting aside convey-
ances by trustee where vendee guilty of fraud in concealing material fact ;
likewise in Lester v. Mahan, 25 Ala. 449, 60 Am. Dec. 532, where grantor
guilty of fraud; Mitchell v. McDougall, 62 111. 503, where fraud on f»art
of grantor consisted in positive false representations; Lapish v. Wells, 6
Me. 188, under facts ; Brown v, Gray, 6 Jones, 106, 72 Am. Dec. 565, where
vendor silent as to latent defect; so also in Cornelius v. Malloy, 7 Pa. St.
297; Fisher v. Budlong, 10 R. I. 527, rescinding sale where vendor was in
such fiduciary relation to vendee as to be obliged to communicate material
facts ; Paddock v. Strobridge, 29 Vt. 476, where vendor of horse held bound
to communicate fact of disease not apparent to vendee; dissenting opinion
in Chicora Ter. Co. v. Duman, 91 Md. 170, 60 L. R. A. 401, 46 Atl. 365,
majority holding failure of debtor to inform creditor of agreement increas-
ing value of stock held as collateral does not bar specific performance of
contract settling debt.
Deceit on sale. Note, 6 Am. Dec. 118.
Fraudulent concealment in sales. Note, 15 Am. Dec. 108.
Fraudulent conveyances. Note, 33 Am. Dec. 710.
For what mistakes written instruments may be canceled or corrented
in equity. Note, 117 Am. St. Rep. 235.
Implied warranty on sale of goods by description. Note, 28 E. R. 0.
461.
755 RUTHERFORD v. GREENE. 2 Wheat. 196-206
Miscellaneotis. Cited in Smith v. Mitchell, 6 Ga. 481, on point that
knowledge of falsity of representations is immaterial; Shaeffer v. Sleade,
7 Blackf. 183, on point that concealment by person in fiduciary relation
to other party will avoid sale.
2 Wheat. 196-206^ 4 L. Ed. 218, BUTHEBFOBD v. GBEENE.
Grant of land to be suhsequently surveyed and located, vests in i^rantee
Iiresent and immediate intertet.
Approved in Riggins v. Tyler, 134 Tenn. 583, 184 S. W. 862, upholding
title to act authorizing the issuance of bonds on theory that population-
of counties must be ascertained from last Federal census when act silent
on 'point; Palmer v. Southern Exp. Co., 129 Tenn. 159, 165 S. W. 247,
upholding act of 1913, regulating carriage of intoxicating liquors by inter-
state carriers; Samuelson v. State, 116 Tenn. 497, 115 Am. St. Bep. 806,
95 S. W. 1019, applying rule in construing act of 1905 prohibiting sale of
railroad tickets by brokers ; State v. Whitney, 66 Wash. 489, 120 Pac. 122,
settler filing on and making improvements on school land by mistake does
not estop State from questioning title ; McAllister v. Okanogan County, 51
Wash. 653, 24 L. B. A. (N. S.) 768, 100 Pac. 148, settler of public lands in
advance of surveys inclosing no greater area than law permits not a tres-
passer; Galloway v. Finley, 12 Pet. 296, 9 L. Ed. 1092, holding that where
patentee deceased, when patent issued, title v^sts in his heirs; Lessieur v.
Price, 12 How. 76, 18 L. Ed. 900, as to grant of land to State, holding title
complete when selection made by State, as provided in grant; Fremont v.
United States, 17 How. 559, 15 L. Ed. 246, applying principle in case of
grant by Mexican government, prior to treaty of cession (but see dissent-
ing opinion, p. 575, 15 L. Ed. 253, distinguishing principal case) ; Hornsby
V. United States, 10 Wall. 233, 234,. 19 L. Ed. 902, confirming such grant
made by Governor of California, before acquisition by United States;
Schulenberg v. Harriman, 21 Wall. 60, 61, 22 L. Ed. 554, 555, and United
States V. Willaniette etc. Co., 55 Fed. 717, holding that where such grant
made on condition that grantee construct and maintain road, condition is
subsequent, and failure to fulfill it cannot be taken advantage of by
stranger to title; Langdean v. Hanes, 21 Wall. 531, 22 L. Ed. 609, holding
that act confirming titles to lands, as provided for in treaty of cession, did
not operate to convey title, and patent granted under such act is only
documentary evidence of such original grant; Wright v. Roseberry, 121
U. S. 500, 30 L. Ed. i042, 7 Sup. Ct. 989, holding that where proper officer
neglects to make survey under grant to State, latter may do so, and on con-
firmation by land department title is complete ; Descret Salt Co. v. Tarpey,
142 U. S. 249, 35 L. Ed. 1002, 12 Sup. Ct. 161, affirming 5 Utah, 499, 17 Pac.
633, holding that patent issued when survey made related back to d^te of
original grant; New York Indians v. United States, 170 U. S. 16, l7, 42
L. Ed. 932, 933, 18 Sup. Ct. 533, 534, construing clause in treaty, provid-
ing for grant of land as reservation; Shaw v. Kellogg, 170 U. S. 341, 42
Is. Ed. 1060, 18 Sup. Ct. 644, where act provided for selection of mineral
lands by grantees, and confirmation by land department was held to com-
2 Wheat. 196-206 NOTES ON U. S. REPORTS, 766
plete title, although no patent issued; Denny v. Dodson, 13 Sawy. 76, 32
Fed. 904, construing grant to railroad, of "odd-numbered sections"; also
in Illinois v. Railway Co., 33 Fed. 770, construing grant to railway of
"submerged lands in Chicago harbor"; Sheppard v. Insurance Co., 40 Fed.
348, on point that where grant contains condition, and United States con-
veys land to third party before condition fulfilled, ^antee can select other
lands, upon such fulfillment; Wineman v. Gastreel, 53 Fed. 700, 2 U. S.
App. 449, holding that grant of land to State commissioners passed present
title, although patents were to issue from State upon certificates issued by
commissioners to purchasers; Roberts v. Brooks, 78 Fed. 413, holding seal
of State unnecessary to validity of instrument conveying gtate lands;
Swann v. Lindsey, 70 Ala. 618, as to grant by State to railroad of alternate
sections of land along line, location of which not determined at time of
grant; dissenting opinion in Lytle v. State, 12 Ark. 41, majority holding
that settler could not go beyond fractional section on which his improve-
ments were, in order to make up amount to which he was entitled under
patent; Fletcher v. Pool, 20 Ark. 103, as to grant to Shtde of all swamp
lands within limits; Waterman v. Smith, 13 Cal. 414, confirming Mexican
grant. Cited in Doll v. Meador, 16 Cal. 320, to point that title is perfected
by patent; Megerle v. Ashe^ 27 Cal. 327, 328, 87 Am. Dec. 78, 79, -holding
patent issued by State, to land included in territory selected by State and
approved by United States, under -a general grant, superior to subsequent
patent to same land by United States; dissenting opinion in Yates y.
Smith, 38 Cal. 67, majority nolding that if after decree confirming Mexican
grant, a decree is made confirming survey of another prior grant to same
land, confirmed, if party to both decrees, is bound by latter decree; For-
rester V. Scott, 92 Cal. 402, 28 Pac. 676, construing grant to railway; Smith
V. Pipe, 3 Colo. 196, on point that legislative grants are not subject to
same rules as private grants as to execution; Courtright v. Railroad Co.,
35 Iowa, 399, construing grant to railroad of lands to be subsequently
selected; Chicago etc. Ry. Co. v. Brown, 40 Iowa, 335, as to grant to State
of swamp-lands, holding such grant operative to pass title without patent;
so also in Page County v. Railroad Co., 40 Iowa, 521 ; State v. Stringfellow,
2 Kan. 320, to point that formality is not necessary to legislative grant;
so also in Baker v. Newland, 25 Kan. 30, Atchison etc. R. R. Co. v. Bobb,
24 Kan. 677, as to grant of lands, locations of which to be fixed by line
of contemplated railway; Johnson v. Ballon, 28 Mich. 385, as to grant to
I'ailroad of land to be subsequently selected; Anderson v. Lewis, 1 Freem.
(Miss.) 181, 182, holding that where treaty reserved to each member of
Indian tribe one section of land, title could vest presently in third per-
son, by grant of tribe, until grantee determined ; Downs v. Downs, 2 How.
(Miss.) 926, holding that grantee under such grant possesses interest
which may be conveyed to third party before land finally identified; Fore
V. Williams, 35 Miss. 537, holding that patent is not necessary to validity
of title of State to swamp-lands under grant by Congress of all such lands
within State; Gibson v. Chouteau's Heirs, 39 Mo. 591, following rule;
Hannibal etc. R. R. Co. v. Smith, 41 Mo. 332, 334, construing statute "to
enable the State of Arkansas to reclaim swamp-lands," etc.; Dean ▼.
757 JOHNSON v. PANNEL. 2 Wheat. 206-221
Bitther, 7 Mo. App. 417, holding that statute of limitations begins to run
in favor of adverse possessor, from date of grant, and not of final survey ;
Northern Pacific R. R. Co. v. Majors, 5 Mont. 130, 131, 2 Pac. 327, 328,
as to grant to railroad of land, location of which was to depend on route
of line to be laid, and in State v. Railroad Co., 7 Neb. 371, on same point,
holding, further, that, when line once located, company cannot change
route and claim other lands instead of those to which title already com-
plete ; En-che-lah v. Welsh, 3 HawRs, 166, construing g^nt to Indian tribe ;
Lee V. Summers, 2 Or. 267, holding that, where land granted on condition,
title not attackable by stranger if condition unfulfilled; Dolph v. Barney,
5 Or. 202, holding "donation act" was present grant, and locator under it,
having complied with conditions, could alienate claim before patent issued ;
John V. Sabattis, 69 M^. 478, arguendo.
Distinguished in Conway v. United States, 149 Fed. 266, where Ponco
squaw's allotment in Sioux reservation as well as other Indian's whom she
married were approved and patent for lieu lands separately applied for was
made to husband as head of family, she was entitled to half; Wallace v.
Adams, 143 Fed. 722, claimants of Indian citizenship who secured judg-
ments in their favor, which were final under statutes when rendered, and
took possession of, and demanded lands as their allotments, before judg-
ments were made reviewable, acquired no vested rights therein against
subsequent legislation ; Shepley v. Cowan, 91 U. S. 333, 23 L. Ed. 425, hold-
ing that grant to State, when subsequently surveyed, cannot include land
patented to individual prior to such survey; Hall v. Russell, 101 U. S. 509,
25 L. Ed. 832, where grant indicated future grantee ; Fitzpatrick v. Dubois,
2 Sawy. 440, Fed. Cas. 4842, where grantee was not identified by act ; Baer
V. Moran Bros. Co., 2 Wash. 610, 27 Pac. 471, where land not subject of
grant.
Explained in Bissell v. fienshaw, 1 Sawy. 573, Fed. Cas. 1447, holding
that when two sneh grants overlap on final survey, elder grant will prevail.
Bights vested under individual appropriation cannot be impaired by subse-
quent grant^
Cited in United States v. Arredondo, 6 Pet. 733, 735, 741, 8 L. Ed. 563,
564, 565, sustaining grant made by Spanish Crown, prior to acquisition of
Florida by United States; Malloy v. Chicago & N. W. Ry. Co., 109 Wis. 33,* 85
N. W. 131, construing Rev. Stats. 1898, § 4222, relative to notice as condition
precedent to suit for personal injuries. Erroneously in Holland v. Dickerson,
41 Iowa, 370, Blair v. Williams, 4 Litt. (Ky.) 66, Baldwin v. Commonwealth
etc., 11 Bush (Ky.), 433, Farrel v. Pingree, 5 Utah, 449, 16 Pac. 845, to point
that statutes are to be construed only prospectively.
2 Wbeat. 206-221, 4 L. Ed. 221, JOHNSON y. PAimEL.
LancP appropriated must be so described on the entry as to give notice to
subsequent locators.
Cited in Patin v. Blaize, 19 La, 400, 401, holding defective such descrip-
tion of land, with reference to location on river, as would suit another
/
2 Wheat. 221-226 NOTES ON U. S. REPORTS. 758
place as well as one claimed ; Buckley v. Gilmore, 12 Ohio, 76, holding, how-
ever, that where monument called for is sufficiently notorious to enable it
to be located, entry is not invalid, although location of monument does not
conform to call for distance; Guilbean v. Mays, 15 Tex. 417, sustaining
patent issued subsequent to entry, unrecorded as required by statute ; Weir
V. Van Bibber, 34 Tex. 229, holding, however, question as to sufficiency of
description is for jury; McNeel v. Herold, 11 Gratt. 314, 315, arguendo.
In computing distance between points on large river, measurement is to be
within its meanders and not in direct line.
Approved in Littlepage v. Fowler, 11 Wheat. 220, 6 L. Ed. 459, following
rule.
Distinguished in Sanders v. Morrison, 2 T. B. Mon. 110, 15 Am. Dec. i41,
holding that where call for distance is on small stream of sufficient length,
it is to be taken on direct line.
In ascertaining place to be found by its distance ftom anotber place, words
"about" or "nearly*' are rejected if there are no other words making it neces-
sary tn retain tbem.
Approved in Cochran v. Schreiber, 107 Fed. 376, applying rule to ver-
dict ; Co^-operative Bldg. Ban^ v. Hawkins, 30 R. I. 184, 73 Atl. 622, apply-
ing rule in action for damages for removal of portion of house which ex-
tended over defendants' boundary line; Sowles v. Minot, 82 Vt. 357, 187
Am. St. Rep. 1010, 73 Atl. 1030, call in deed of fifty feet more or less in
certain direction must be construed as fifty feet unless distance controlled
by other calls.
Meaning of words "more or less." Note, 28 Am. St. Rep. 631.
2 Wheat. 221-226, 4 L. Ed. 224, PATTERSON ▼. ITNITED STATEa
Variance ftom issue renders verdict defective, and Judgment rendered
thereon is void.
Approved in Schneider v. Marinelli, 62 N. J. L. 741, 42 Atl. 1077, fol-
lowing rule ; Hill v. Walker, 167 Fed. 254, 92 C. C. A. 633, neither general
denial under State codes or general issue at common law proper method of
challenging jurisdiction of Federal courts; Towle v. First Nat. Bank, 153
Fed. 567, 82 C. C. A. 520, special findings in Federal court must embrace
finding on every- material issue in case ; Doe v. Goetchins, 180 Ala. 385, 61
South. 332, verdict for defendant in ejectment must respond to issues
raised on description of premises; Kirkland v. Pilcher, 174 Ala. 176, 57
South. 48, mere money judgment in detinue not responsive to complaint;
Magruder v. Belt, 7 App. D. C. 310, in action against husband and wife on
joint contract, verdict against wife alone void; Advance Thresher Co. v.
Speak, 167 Mo. App. 475, 151 S. W. 236, verdict for defendant for money
judgment not good in action of replevin for engine where defendant coun-
ter-claimed and asked for return of engine as well as damages; Dailey v.
Columbia, 122 Mo. App. 24, 97 S. W. 954, in action against city and others,
verdict for plaintiff generally will not stand where court has directed ver-
dict in favor of certain defendants; Hickey v. Breen, 40 Mont. 373, 20
759 PATTERSON v. UNITED STATES. 2 Wheat. 221-226
Ann. Gas. 429, 106 Pac. 881, verdict in replevin defective where it fails
to find on issue whether defendant took or detained property ; Hamilton v.
Murray, 29 Mont. 84, 74 Pac. 76, where in ejectment plaintiff's allegations
as to ownership, possession and ouster denied and on trial controversy was
as to location of boundary, verdict for plaintiff for possession is bad ; John-
son V. Glaspey, 16 N. D. 340, 113 N. W, 604, in claim and delivery, money
judgment for defendant not responsive where issues raised other questions;
Leiter v. Lyons, 24 R. I. 48, 52 Atl. 81, holding where in replevin pleas
were title in third party and non cepit, it was error to chaise that verdict
would depend on question of title in plaintiff, and if property was under
control of defendant it was technically detained by him although he did
not knQw it; Galveston H. & S. A. Ry. Co. v. Botts, 22 Tex. Civ. 610, 56
S. W. 515, holding void findii^ that cattle were damaged two dollars per
head without finding number of cattle or aggregate damage; Garland v.
Davis, 4 How. 143, 147, 11 L. Ed. 913, 914, reversing judgment based upon
verdict following plea of nonassumpsit in action of tort ; Hodges v. Easton,
106 U. S. 410, 27 L. Ed. 171, 1 Sup. Ct. 310, reversing judgment based upon
special verdict embracing only part of matter in issue; United States v.
Watkins, 3 Cr. C. C. 575, Fed. Cas. 16,649, where verdict found only some
of several facts necessary to constitute offense charged in indictment;
Jones V. Van Zandt, 2 McLean, 624, Fed. Cas. 7502, on point that where
verdict rendered on one of several counts in declaration, the others cannot
be referred to as sustaining such verdict; Moody v. Keener, 7 Port. 235,
where issue was defendant's negligence, as postmaster, in losing letter, and
verdict found that "defendant did undertake and assume as plaintiff com-
plained," etc., with no finding as to negligence ; Toulmin v. Lesesne, 2 Ala.
.^65, reversing judgment in trover based on verdict, "that defendant doth
detain," etc.; Smith v. Houston, 25 Ark. 184, holding verdict in replevin,
that plaintiff is entitled to property not responsive to issue on pleas of
non cejiit and property in defendant; Machette v. Wanless, 1 Colo. 228,
holding issue on plea of non detinet in replevin not determined by verdict
of guilty; Tourtelotte v. Brown, 1 Colo. App. 413, 29 Pac. 132, reversing
judgment based on general verdict for defendant, in action on promissory
note, main issue being whether note was genuine or a forgery; Day v.
Webb, 28 Conn. 145, where verdict in action on case unintelligible and
insufficient as basis for judgment for either party; Holt v. Van Eps, 1
Dak. Ter. 203, 46 N. W. 690, where issue was ownership and verdict found
only as to right of possession; HoUiday v. McKinne, 22 Fla. 160, holding
void, execution in replevin, based on finding "for plaintiff, property to
value of," etc.; Wood v. McGuire, 17 Ga. 362, 63 Am. Dec. 247, reversing
judgment in ejectment, there being no finding in verdict as to one of plain-
tiffs; Semple v. Halman, 3 Gilm. 133, holding void a verdict findine only
as to three of four counts in declaration in debt ; Wise v. Hine, 1 G. Greene
64, as to verdict in ejectment, failing to find as to item of property on
which issue joined ; Taf t v. Baker, 2 Kan. App. 602, 42 Pac. 503, reversing
judgment based upon special verdict in replevin, statnte requiring general
verdict in all cases ; Perea v. Colorado Nat. Bank, 6 N." M. 8, 27 Pac. 324,
holding an issue as to indebtedness, not met by the jury's verdict; McCoy
s
2 Wheat. 221-226 NOTES ON U. S. REPORTS. 760
•
V. Rives, 1 Smedes & M. 594, where issue was as to property in slaves, by
name, and verdict employing other names was held void; Schweickhardt
V. St. Louis, 2 Mo. App. 583, reversing judgment in action on case based
on verdict finding only as to one of seve^I joint defendants; Middleton v.
Qnjgley, 12 N. J. L. 354, holding that finding as to plea *'non tenuit," can-
not be inferred from finding as to plea "nothing in arrear"; Bemus v.
Beekman, 3 Wend. 675, holding insufficient, verdict finding for plaintiff
on plea non cepit, but determining nothing as to plea of property; Weik-
man v. Charleston, 2 Spear, 376, reversing judgment based on ambiguous
verdict ; State v. Smalls, 17 S. C. 66, holding that where indictment charged
"assault with intent to kill," finding of "guilty of assault and batter)',"
was insufficient ; so also in dissenting opinion in State v. Robinson, 31 S. C.
460, 10 S. E. 103, majority holding sufficient, a finding of "guilty of an
aggravated assault and battery"; May v. Taylor, 22 Tex. 350, holding that
where, in action on note, existence of mortgage ^ven to secure it, was in
issue, it was error to decree foreclosure of mortgage in giving judgment on
note, unless verdict contained finding as to it; Moore v. Moore, 67 Tex.
296, 3 S. W. 285, reversing judgment based on special verdict, not finding
as to all material issues; Ronge v. Dawson, 9 .Wis. 248, holding that where,
in replevin, issue is joined on plea non cepit, verdict of "guilty of unjust
detention," is insufficient; Garland v. Davis, 4 How. 154, 11 L. Ed. 917,
Jones V. Kennedy, 11 Pick. 131, Hardy v. De Leon, 6 Tex. 239, dissenting
opinion in Taylor v. Baker, 1 Fla. 261, arguendo.
Distinguished in Capital Traction Co. v. Vawter, 37 App. D. C. 35, Ann.
Gas. 1912D, 1059, in action for personal injuries against two defendants
for separate acts of negligence, not error to direct verdict against one;
Downey v. Hicks, 14 How. 246, 14 L. Ed. 407. United States v. OTallon,
15 Blatchf. 299, Fed. Cas. 15,911, Phillips v. Kent, 23 N. J. L. 158, in all
of which verdict was defective only in form.
If Jury find issue and nomethlnc more, latter part of finding will be rejected
as surplusage.
Approved in People v. Boer, 262 III. 156, 104 N. E, 164, indictment
charging accused with robbery and alleging that he was armed with re-
volver, etc., not fatally defective, since latter part may be stricken out as
surplusage ; Statler v. United States, 157 U. S. 279, 39 L. Ed. 701, 15 Sup.
Ct. 617, where indictment contained several counts, and finding of "guilty"
as to first, held not qualified by findings of "not guilty" as to others ; Rus*
sell V. Wheeler, Hempst. 7, Fed. Cas. 12,164a, holding that, although ver-
dict in action of forcible entry and detainer is informal, it is good if sub-
stance of issue be found; Hefel v. Whitney Land Co., 54 Fed. 181, on point
that where copyright law prescribes form of notice of claim of copyright,
such notice is not void because of surplusage, if substance found; Coit v.
Waples, 1 Minn. 149, 151, where plea in replevin was non cepit, and addi-
tional findings as to title and right of possession rejected as surplusage;
Swan V. Smith, 13 Nev. 260, as to alternative in verdict for plaintiff in
action of trover; ddlin v. Gove, 41 N. H. 478, 77 Am, Dec. 779, holding
that when, on writ of entry, there is disclaimer as to part, and general
issue as to residue, verdict for whole may be modified to include only part
t
Xfil THE PIZARRO. 2 Wheat. 227-248
demanded; Massey v. Duren, 7 S, C. 316, striking from verdict in eject-
ment, matter relating to description of land, which did not qualify find-
ings; Hutchins v. Bacon, 46 Tex. 412, rejecting conditional finding for
plaintiff in ejectment ; Pettes v. Bingham, 10 N. H.. 519, arguendo.
What special verdict must contain. Note, 24 L. R. A. (N. S.) 39t
61, 62.
0
drcnit Court has no authority to issue certiorari to District Court, for
removal of cause from that court, before final judgment.
Approved in United States v. Dickinson, 213 U. S. 102, 53 L. Ed. 719, 29
Sup. Ct. 485, certiorari cannot be granted in criminal case at instance of
United States under act of March 3, 1891 ; Whitney v. Dick, 202 U. S. 139,
50 L. Ed. 966, 26 Sup. Ct. 584, Circuit Court of Appeals has no jurisdic-
tion to issue certiorari to review conviction in inferior Federal court;
Sullivan v. District of Columbia, 19 App. D. C. 217, original writ of cer-
tiorari cannot be invoked to remove to Federal' court criminal case pending
in Police Court; Holmes v. Jennison, 14 Pet. 621, 10 L. Ed. 623, denying
jurisdiction of Supreme Court of writ of error to State court to revise
decision upon writ of habeas corpus; American Construction Co. v. Rail-
way Co., 148 U. S. 380, 37 L. Ed. 490, 13 Sup. Ct. 762, refusing writ to re-
view proceedings in Circuit Court of Appeals on appeal from order of Cir-
cuit Court, granting injunction ; Ex parte Van Orden, 3 Blatchf . 168, Fed.
Cas. 16,870, Circuit Court refusing writ to review proceedings before a
commissioner of such court ; Nacoochee etc. Co. v. Davis, 40 Ga. 317, deny-
ing right of State Supreme Court to issue writ of error until final disposi-
tion of cause in Superior Court; People v. Lindsay, 1 Idaho, 401, quashing,
writ of certiorari to review quo warranto proceedings in lower court before
final determination; dissenting opinion in Ex parte Crane, 5 Pet. 215, 8
L. Ed. 102, arguendo.
Appearance waives objection to IrregularitieB in process.
Cited in United States v. McKee, 4 Dill. 9, Fed. Cas. 15,687, ruling
similarly where statute regulating transmission of record on appeal, not
strictly regarded, and objection not made until after verdict; Romaine v.
Insurance Co., 28 Fed. 638, where service of subpoena was outside of judi-
cial district ; Jim v. State, 3 Mo. 166, 168, holding right to change of venue
waived by plea to general issue ; Law v. Merrills, 6 Wend. 272, as to error
in record as to place where court held at time capias returnable.
Miscellaneous. Cited in Barth v. aisle, 12 Wall. 403, 20 L. Ed. 394, but
application doubtful; Baker v. Biddle, 1 Bald. 406, Fed. Cas. 764, to point
that appellate power of Federal courts is subject to control of Congress;
Gautier v. Franklin, 1 Tex. 738, as to power of court on appeal to give judg-
ment on whole record.
2 Wheat. 227-248, 4 !■. Ed. 226, THE PIZABBO.
Concealment or spoliation of papers, if unexplained, is snficient ground for
condemnation in ivrlBe conrt.
Approved in The Olinde Rodriguez, 174 U. S. 528, 43 L. Ed. 1071, 19
Sup. Ct. 858, applying principle to intent to run blockade ; Mastin v. Noble,
2 Wheat. 227-248 NOTES ON U. S. REPORTS. 702
157 Fed. 513, 85 C. C. A. 98, holding evidence insufficient to cancel mining
lease for fraud of vendor's agent; Yarborough v. Hughes, 139 N. C. 211,
51 S. E. 908, where in suit to set aside sale under power, evidence showed
that attorney and purchaser were jointly interested, and defendant failed
to produce writings relating to transaction, failure raised presumption
against him ; Hay v. Peterson, 6 Wyo. 436, 438, S4 L. R. A. 681, 46 Pac. 1077,
1078, holding that destruction of account-books by plaintiff raises no pre-
sumption against him; The Schooner Zaralla, Blatchf. Pr. 174, Fed. Cas.
18,203, where, in addition to spoliation of papers, vessel had aboard enemy's
property; The Schooner Mersey, Blatchf. Pr. 193, Fed. Cas. 9489, holding
that mutilation of log-book, together with evidence that vessel was bound
for blockaded port, furnished ground for condemnation; The Ella Wariey,
Blatchf. Pr. 289, Fed. Cas. 4373, where vessel captured was sailing without
log, and bound for blockaded port; The Stephen Hart, Blatchf. Pr. 425,
Fed. Cas. 13,364, refusing to allow further proof where destruction of
papers and enemy's flag attended with other suspicious circumstances ; The
Peterhoff, Blatchf. Pr. 537, Fed. Cas. 11,024, as to deficiencies in manifest
in respect to contraband articles aboard; United States v. One Hundred
and Twenty-nine Packages, 27 Fed. Cas. 286, holding fraud presumable
iProm fact, unexplained, that party mixes goods prohibited by revenue laws
with those not prohibited; United States v. Cement, 27 Fed. Cas. 297, de-
creeing forfeiture because of fraud in procuring license; United States v.
The Wren, 28 Fed. Cas. 785, under facts similar to principal case; Thomp-
son V. Thompson, 9 Ind. 332, 68 Am. Dec. 646, holding destruction of deed
by party claiming under it raises presumption of its invalidity; Kirkaldic
'V. Paige, 17 Vt. 262, holding that, where, in action for slander, defendant
attempts to impeach credit of witnesses of plaintiff, latter may introduce
evidence to prove that defendant had endeavored, by use of threats, solici-
tation and money, to induce witnesses not to testify; Hay v. Peterson, 45
Pac. 1077, 1078, holding destruction of decedent's account-books by exe-
cutor at decedent's request, raised no adverse presumptions; The Adula,
89 Fed. 361, arguendo.
Presumption against spoliator of evidence. Note, 84 L. B. A. 685.
In prize case ship's papers should be brought into court verified on oath by
captors, and examinatiozi of crew taken upon standing interrogatories, and not
viva voce.
Approved in The Adula, 176 U. S. 381, 382, 44 L. Ed. 614, 20 Sup. Ct.
440, on facts ordering further proof; dissenting opinion in The Carlos F.
Roses, 177 U. S. 678, 44 L. Ed. 938, 20 Sup. Ct. 812, as to sufficiency of
affidavits and exhibits to prove title of claimant3 ; The Adula, 89 Fed. 352,
355, where vessel seized for attempt to violate blockade.
Under Danish treaty stipulating tbat free ships make free goods, want of
Bach certificates prescribed by treaty is not ground for condemnation.
Cited in Pollard v. Kibbe, 14 Pet. 413, 10 L. Ed. 619, as instance of pro-
tection afforded by treaty to prox>erty rights, construing clause in treaty
providing for confirmation of land grants.
763 NOTES ON U. S. REPORTS. 2 Wheat. 248-278
Stotns as^snliject is regolated ty domicile.
Approved in The Stephen Hart, Blatchf . Pr. 415, Fed. Cas. 13,364, hold-
ing vessel owned hy British suhject domiciled in Confederate States, liable
to seizure as enemy property; United States v. Chong Sam, 47 Fed. 885,
construing clause in Chinese Exclusion Act, providing for return of Chinese
to "country whence he came," and ordering return to Canada, defendant
having acquired domicile there; Opinion of Judge jAppleton, 44 Me. 527,
as to status of manumitted slaves with reference to right of suffrage.
Miscellaneous. Cited in Proceeds of Prizes etc.. Abb. Adm. 497, Fed.
Cas. 11,440, on point that where capture made by public vessel, govern-
ment sues in own name; The Stephen Hart, Blatchf. Pr. 398, Fed. Cas.
13,364, as instance of practice on re-examination of witnesses; Hart v.
Burke, 33 La. Ann. 504, but not in point ; and in Personette v. Johnson, 40
N. J. Eq. 175, and Scribner v. Williams, 1 Paige Ch. 551, to point that it
is within discretion of court to order taking of testimony, to be used on
appeal.
2 Wheat. 248-269, 4 "L. Ed. 231, UNITED STATES ▼. TEN BBOEK.
•
Writ of error does not lie to carry to Supreme Court civil cause whlcb has
been carried by same iRrocess from District to Circuit Court.
Approved in Sarchet v. United States, 12 Pet. 144, 9 L. Ed. 1033, holding
judgment of Circuit Court final and conclusive, in action at law, on bond,
removed from District to Circuit Court; Holmes v. Jennison, 14 Pet. 621,
10 L. Ed. 623, as instance of control of Cong^eds over appellate powers of
Federal courts.
Act of Congress, imposing license tax on distillery, does not extend to im-
l^ements used for rectifying spirits already distilled.
Approved in State v. American Sugar Refining Co., 51 La. Ann. 585, 25
South. 455, holding refiner of completely manufactured sugar is not a
manufacturer within tax exemption contained in Const. 1879, art. 206;
Schuylkill etc. Co. v. Moore, 2 Whart. 492, to point that words in contract
are to be taken according to popular meaning, holding that contract for
sale of so much water as can pass through pipe has reference to natural
flow, not increased by mechanical means.
2 Wlieat. 259^278, 4 L. Ed. 234, CHIBAC v. CHIBAC.
Power of naturalization is exclusively in Congress.
Approved in United States v. Viaropulos, 221 Fed. 489, courts of record
may amend declaration of intention to correct name of sovereign errone-
ously inserted by clerk ; Inhabitants of Hampden County v. Morris, 207 Mass.
169, Ann. Gas. 1912A, 815, 93 N. E. 580, State statute requiring naturaliza-
tion fees to be paid to county clerks void ; Fields v. Multnomah County, 64 Or,
121, 44 L. R. A. (N. S.) 322, 128 Pac. 1046, county clerks not required to
account for naturalization fees under State law fixing compensation ; Elk v.
Wilkins, 112 U. S. 109, 28 L. Ed. 649, 58 Sup. Ct. 49, asserting exclusive right
of Congress to confer citizenship on member of Indian tribe ; United States
2 Wheat. 259-278 NOTES ON U. S. REPORTS. 764
V. Wong Kim Ark, 169 U. S. 701, 42 L. Ed. 909, 18 Sap. Ct/477, holding,
however, that, although Congress has expressly provided against natural-
ization of Chinese subjects, child bom of Chinese parents domiciled in this
country is citizen within meaning of Constitution; Matthew y. Rae, 3 Cr.
C. C. 699, Fed. Cas. 9284, denying validity of naturalization under State
law ; Comitis v. Parkerson, 66 Fed. 658, sustaining validity of act of Con-
gress, providing that alien woman by marriage with citizen shall become
citizen ; Ex parte Smith, 22 Fed. Cas. 380, construing act of Congress, pro-
viding for naturalization by State courts of record; Stephens, Petitioner,
4 Gray, 661, denying petition for naturalization, act of Congress having
forbidden State courts from receiving applications in such cases ; dissent-
ing opinion in Houston v. Mooi^e, 5 Wheat. 49, 5 L. Ed. 31, Holmes v.
Jennison, 14 Pet. 693, 10 L. Ed. 605, Day v. Buffinton, 3 Cliff. 386, Fed.
Cas. 3676, Lynch v. Cljirke, 1 Sand. Ch. 643, Craig v. Kline, 66 Pa, St. 409,
3 Am. R^p. p43. In re Booth, 3 Wis. 125, arguendo.
The following cases distinguish the principal case upon this point in
holding that where a particular power of Congress is not exclusive, the
States may legislate upon matters touching such power, until Congress has
acted: License Cases, 6 How.* 685, 12 L. Ed. 292; dissenting opinions in
Passenger Cases, 7 How. 656, 12 L. Ed. 816, Dred Scott v. Sandford, 19
How. 633, 578, 15 L. Ed. 764, 772, Ex parte Clarke, 100 U. S. 412, 25 L. Ed.
730, and United States v. Rhodes, 1 Abb. (U. S.) 45, Fed. Cas. 16,161.
Validity of State legislation with respect to naturalization of aliens.
Note, Ann. Gas. 1912A, 817.
Powers of State legislatures and courts as to naturalization. Note,
30 L. R. A. 761.
Treaty of 1778 between United States and France enable subjects of
France to purchase and liold lands in United States.
Approved in United States v. Severino, 125 Fed. 964, holding under Rev.
Stats., § 5396, Federal courts have jurisdiction of perjury committed in
naturalization proceedings in State court; Doe v. Roe, 6 Penne. (Del.) 399,
66 Atl. 341, article 1 of treaty of 1900, with Great Britaii^, puts alien next
of kin on same footing as residents, as to inheritance; Blythe v. Hinckley,
180 U. S. 341, 45 L. Ed. 562, 21 Sup. Ct. 394, arguendo ; Geof roy v. Riggs,
133 U. S. 267, 33 L. Ed. 645, 10 Sup. Ct. 297, sustaining right of citizen of
France to take lands by descent from citizen of United States; In re
Tiburcio Parrott, 6 Sawy. 370, 1 Fed. 502, as instance of Federal control
of treaty-making power, holding void, provision in State Constitution in
conflict with Chinese treaty.
Right of alien to inherit real property as affected by treaty with
foreign country. Note, Ann. Cas. 1912A, 1101, 1103.
Property rights of aliens vested under treaty cannot be impaired by abro-
gation Af sucli treaty.
Approved in Doe v. Roe, 4 Penne. (Del.) 400, 66 Atl. 341, applying rule
to devolution of property treaty of 1900 with Great Britain; Lehman
V. State, 46 Ind. App. 335, 338, 88 N. E. 367, 368, statute giving aliens five
765 NOTES ON U. S. REPORTS. 2 Wheat. 278-289
years to dispose of, real property not in violation of treaty; Pollard y.
Eibbe, 14 Pet. 413, 10 L. Ed. 519, confirming grant made to French sub-
ject prior to acquisition of Louisiana by United States; Hauenstein v.
Lynham, 100 U. S. 489, 25 L. Ed. 630, to point that provision in treaty
may protect lands of alien from forfeiture by escheat, under State
laws; dissenting opinion in Baldwin v. Franks, 120 U. S. 703, 30
L. Ed. 772, 7 Sup. Ct. 765, as instance where Federal courts enforced
rights under treaty, without authorization of Congress, majority denying
jurisdiction of Federal courts to punish persons guilty of depriving Chinese
of rights guaranteed by treaty; People v. Gerke, 5 Cal. 382, 386, holding
valid, conveyance of lands by nonresident heirs of deceased alien, whose
disability to hold latids had been removed by treaty; Wunderle v. Wun-
derle, 144 111. 54, 33 N. E. 197, holding void, State statute conflicting with
treaty removing disabilities of alien heirs; so also in Opel v. Shoup, 100
Iowa, 424, 69 N. W. 563, and Doehrel v. Hillmer, 102 Iowa, 172, 71 N. W.
205; Cameal v. Banks, 10 Wheat. 189, 6 L. Ed. 300.; Cherokee Nation v.
Georgia, 5 Pet. 44, 46, 8 L. Ed. 41 ; McClenaghan v. McClenaghan, 1 Strob. 89,
321, 47 Am. Dec. 585; Hardy v. De Leon, 5 Tex. 240, arguendo.
Distinguished in Crane v. Reeder, 21 Mich. 65, 4 Am. Rep. 487, con-
struing treaty and holding that in order for alien to inherit, title in alien
ancestor must have been valid.
Husband and wife. Note, 12 Am. St. Bep. 95.
Miscellaneous. Cited in Kershaw v. Kelsey, 100 Mass. 574, 97 Am. Dec.
136, to point title of aliens to real estate is subject to municipal regulation
in absence of treaty; Lewis v. Durst, 10 Tex. 416, not in point.
2 Wheat. 278-287, 4 L. Ed. 239, THE GEOBGB.
Collusive capture vests no title in captor and property will be decreed to
United States.
Cited in The Experiment, 8 Wheat. 264, 266, 267, 268, 5 L. Ed. 613, 614,
following rule ; Robinson v. Hook, 4 Mason^ 153, 154, 156, Fed. Cas. 11,956,
arguendo.
2 Wheat. 287-289, 4,1a. Ed. 241, THE ABOO.
Provision in Jndiciaiy act as to taking depositions de bene esse applies
only to cases pending in Circuit and District Oonrts.
Cited in Allen v. Blunt, 2 Wood, ft M. 136, Fed. Cas. 217, holding, how-
ever, that such depositions are not admissible if taken during session of
court except by consent of parties; Richter v. Jerome, 25 Fed. 681, holding
that deposition cannot be taken in Circuit Court while cause pending in
Supreme Court on appeal; Stegner v. Blake, 36 Fed. 184, as instance of
application of rule in admiralty cause, holding it applicable to suit in
equity for infringement of patent; The Beeche Dene, 55 Fed. 527, 13 U. S.
App. 211, holding such deposition in admiralty cause inadmissible in Cir-
cuit Court of Appeals, ,
2 Wheat. 290-305 NOTES ON U. S. REPOETS. 766
2 Wlieat. 290-805, 4 L. Ed. 242, MOBaAN ▼. MOBOAK.
Jurisdiction of Federal court, having once vested, cannot be divested by
change of domicile of party pendente lite. f
Approved in Lebensberger v. Scofield, 139 Fed. 384, following rule;
Louisville etc. Ry. Co. v. Louisville Trust Co., 174 U. S. 566, 48 L. Ed. 1088,
19 Sup Ct. 822, upholding Federal jurisdiction where foreign corporation
afterward became citizen of State of onfe of defendants; Kirby v. Amer-
ican Soda etc. Co., 194 U. S. 146, 48 L. Ed. 913, 24 Sup. Ct. 619, upholding
Circuit Court's jurisdiction over cross-bill seeking to recover balance of
seventeen hundred dollars due on contract of exchange, where original
bill dismissed on complainant's own motion asked for cancellation of agree-
ment to pay two thousand and twenty-five dollars, in consideration of ex-*
change; Haracovic v. Standard Oil Co., 105 Fed. 785, refusing to remand
where alien has become naturalized ; Pacific Mut. Life Ins. Co. v. Tompkins,
101 Fed. 542, holding residence at commencement of action determines
Federal jurisdiction; State v. Wilkins, 67 N. H. 165, 29 Atl. 693, holding
sufficiency of names to petition for withdrawal of liquor license is not
affected by death or withdrawal of one of petitioners; Clarke v. Mathew-
son, 12 Pet. 171, 9 L. Ed. 1044, where in suit depending on diverse citizen-
ship, plaintiff removed into and became citizen of same State as defend-
ant; Kanouse v. Martin, 15 How. 208, 14 L. Ed. 664, holding that in suit
between citizens of 'different States, Circuit Court acquired jurisdiction
by defendant's application for removal, and it was error for State court
to allow plaintiff to reduce demand below jurisdictional amount; Koenigs-
burger v. Min. Co., 158 U. S. 50, 39 L. Ed. 892, 15 Sup. Ct. 755, construing
statute transferring to United States courts causes pending in Su]3reme
Court of Dakota Territory at time of division and admission to Union;
Hatfield v. Bushnell, 1 Blatchf. 395, Fed. Cas. 6211, 22 Vt. 662, holding
that action does not abate by death of party, and administrator may con-
tinue suit, although citizen of same State as other party; Culver v. Wood-
ruff, 5 Dill. 394, Fed. Cas. 3469, holding jurisdiction of cases pending in
District Court not affected by change in territorial jurisdiction; Rawle v.
Phelps, 2 Flipp. 471, Fed. Cas. 11,588, denying right to remove cause, where
diverse citizenship did not exist when action commfenced; Trigg v. Conway,
Hempst. 712, Fed. Cas. 14,173, as to death of party in action to detinue,
and substitution as administrator of person not within jurisdiction of
court in personal capacity; Hatch v. Dorr, 4 McLean, 113, Fed. Cas. 6206,
holding creditor's bill for discovery to be continuation of suit at law and
jurisdiction not affected by removal of complainant; Glover v. Shepperd,
21 Fed. 482, sustaining jurisdiction where plaintiff transferred his interest
to person not originally competent to sue; Bland v. Fleeman, 29 Fed. 672,
allowing cross-bill between codefendants, main cause being properly before
the court; Jarboe v. Templer, 38 Fed. 217, holding jurisdiction to enforce
lien not affected by transfer of interest; Ex parte Kyle, 67 Fed. 309, apply-
ing principle in criminal action holding that where court l^as acquired juris-
diction of case where member of Indian tribe is charged with larceny,
jurisdiction not ousted by naturalization of such person; Cross v. Evans,
86 Fed. 4, 52 U. S. App. 728, where jurisdiction held not affected by trans-
767 MOPGAN v. MORGAN. 2 Wheat. 290-306
V
0
fer of defendants' interest in railroad as receivers to citizen of same
Stat* as plaintiff; Tug River etc. Co. v, Brigel, 86 Fed/ 819, holding that
where jurisdiction has attached as against indispensable parties in bill
to foreclose mortgage, court may strike out names of other parties im-
peding jurisdiction; Estes v. Martin, 34 Ark. 419, holding jurisdiction of
court as to action pending not affected by adoption of statute changing^
constitution of courts; Indianapolis etc. Co, v. Risley, 50 Ind. 64, on point
that petition for removal must show that parties were citizens of different
States when action was commenced; so also in Richardson v. Packwood, 1
Mart. (La.) (N. S.) 301, holding that right must be claimed on entering
of appearance in State court ; Dorr v. Davis, 76 Me. 304, holding that minor
cannot acquire residence in other county than that in which guardian
appointed, so as to oust jurisdiction of Probate Court in which appoint-
ment made ; Brown v. Desmond, 100 Mass. 269, wher^ jurisdiction of Rhode
Island court held not ousted by revocation of boundary line leaving sub-
ject matter of pending action in Massachusetts; Laird v. Railroad Co., 55
N. H. 379, 20 Am. Bep. 219, denying petition for removal to Federal court
made after plaintiff had bona fide acquired citizenship in same State as
defendant ; so also in Upton v. Williamson, 25 N. J. Eq., 375, 377, to same
effect; Holden v. Insurance Co., 46 N. Y. 6, 7 Am. Rep. 290, on point that
petition for removal must aver that action was commenced by citizen of
another State, and holding insufficient averment that "plaintiff is a citizen,"
etc.; Trapier v. Waldo, 16 S. C. 285, holding jurisdiction of court over
pending bill for foreclosure of mortgage not affected by repeal of statute
conferring such jurisdiction; discussion in Jones ▼. Fletcher, 42 Ark. 443,
and Freeland v. Lanfear, 2 Mart. (La.) (N. S.) 262, arguendo.
Distinguished in Pittsburgh etc. R. Co. v. Fiske, 178 Fed. 70, 101 C. C. A.
560, where plaintiff transfers whole interest in action to corporation of
same citi^nship as defendant action in Federal court abates; Young y.
Southern Bell Tel. & Tel. Co., 75 S. C. 331, 9 Ann. Gas. 940, 7 L. B. A.
(N. S.) 501, 55 S. E. 767, action in Federal court discontinued may be
commenced again in State court; dissenting opinion in Florida v. Georgia,
17 How. 508, 15 L. Ed. 200, and Melius v. Thompson, 1 Cliff. 133, Fed. Cas.
9405, under facts; Adams Express Co. v. Railroad Co., 4 McCrary, 84, 16
Fed. 717, refusing to allow supplemental bill joining as coplaintiff party
resident in same State as defendant; Goodnow v. Grayson, 5 McCrary, 20,
15 Fed. 4, holding that where party having right to remove suit to Federal
court fails to do so and moves into State where suit brought executor can-
not do so; Clarke v. Mathewson, 2 Sumn. 265, Fed. Cas. 2857 (but see same
case on appeal, 12 Pet. 171, 9 L. Ed. 1044).
Explained in Thaxter v. Hatch, 6 McLean, 70 Fed. Cas. 13,866, holding
that jurisdiction must have been vested by suit and not by mere accruing
of right of action.
In action for speciflc performance of contract to convey lands made 1)7
person since deceased, all heirs must be Joined as defendants.
Approved ia 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
2 Wheat. 306-316 NOTES ON U. S. REPORTS. 768
title to land having passed to such owner's descendants by operation of law,
it was incumbenf on them to convey to complainant right purchased j
Cleavenger v. Sturm, 69 W. Va. 667, 63 S. E. 596, executory contract for
sale of land will not be specifically enforced in favor of vendor where in-
duced by misrepresentations of slight degree; Shields v. Barrow, 17 How.
142> 15 L. Ed. 161, dismissing bill to set aside contract where two only of
four necessa*^ parties amenable to process of court; Phillips v. Mariner,
5 Biss. 28, Fed. Cas.' 11,105, granting bill to review foreclosure of mortgage
given to secure three notes, decree having accounted for but two notes;
Fagan v. Barnes, 14 Fla, 57, as inferentially deciding that persons who
were parties to contract can be only parties in action for specific perform-
ance; Gallatin etc. Co. v. Davis, 44 W. Va. 115, where facts were similar to
those in principal case.
Party seeking specific performance must be in condition to perform on bis
part.
Approved in Wesley v. Eells, 177 U. S. 376, 44 L. Ed. 812, 20 Sup. Ct.
664, refusing specific performance where title was defective; Day v.
Mountin, 137 Fed. 765, 70 C. C. A. 190, where contract for sale of lands
requires vendor to furnish abstract showing clear title, it cannot be
specifically enforced by vendor where only title shown is government entry
without fiinal proofs '^ Tilghman v. Tilghman's Exrs., 1 Bald. 494, Fed. Cas.
14,045, holding further that where acts to be done are concurrent, plaintiff
must aver performance or offer to perform on his part; Haynes v. Farley,
4 Port. 533, holding that Where vendee has proceeded at law for breach of
contract to convey land, equity will not interpose and compel him to
accept conveyance; Morrison v. Kinstra, 55 Mis^ 76, where guardian's act
in contracting for sale of ward's land held ultra vires and void, and specific
performance denied ; Fitzpatrick v. Beatty, 1 Gilm. 468, and Gusdorff ' v.
Sohleisner, 85 Md. 374, 37 Atl. 171, arguendo.
Miscellaneous. Cited in Brighton etc. Bank v. Merick, 11 Mich. 420, but
application doubtfuL
2 Wheat. 306-316, 4 L. Ed. 246, U^B ▼. QltEEN.
Decision which rests in discretion of court is not subject for writ of error.
Cited in Cook v. Burnley, 11 Wall. 676, 20 L. Ed. 86, to order of court
to supply lost record; Ringgold's Case, 1 Bland Ch. 9, to refusal of court
to accept appeal bond.
Distinguished in Gilliland v. Rappleyea, 15 N. J. L. 143, holding that
where verdict has been set aside at instance of plaintiff, it is error for
court to subsequently render judgment for defendant.
Matter in abatement must be pleaded and cannot be given in evidence on
the mise Joined.
Cited in Boiling v. Mayor, 3 Rand. 583, holding that where mise is joined
on mere right, tenant cannot give in evidence nontenure.
769 SHIPP V. MILLER. 2 Wheat. 316-^27
2 Wbeat. 316-327, 4 L. Ed. 248, SHlPP ▼. MILLSB.
Courses and distances yield to known, Tlsible and definite objects.
Approved in Cochran v. Schreiber, 107 Fedi 375, construing description in
verdict; Miller v. Mclntyre, 6 Pet. 63, 8 L. Ed, 321, following rule; Booth
V. Upshur, 26 Tex. 71, holding, however, that question as to whether monu*
ments sufficiently definite is for jury; Hull v. Fuller, 7 Vt. 105, to point
that where descriptions in deed are inconsistent, court will be guided by
evident intent of parties; Phillips v. Porter, 3 Ark. 57, 36 Am. Dec. 451,
arguendo.
Courses and distances do not srield to monuments unless latter are equally
certain and definite.
Approved in Finbe^ v. Gilbert, 104 Tex. 547, 141 S. W. 86, description
in patent cannot be established by recourse to maps and monuments made
after land was patented ; W. M. Ritter Lumber Co. v. Montvale Lumber Co.,
169 N. C. 94, 85 S. E. 446, where reference tc ridge is descriptive and not
locative, it gives way to boundary established by marked trees; Booth v.
Strippleman, 26 Tex. 443, where call was for stake in open and unidentified
line; Weir v. Van Bibber, 34 Tex. 229, holding evidence admissible to show
location of monuments where description vague and uncertain; Boon v.
Hunter, 62 Tex. 588, holding that when line of survey is clearly estab-
lished, other lines are established by course and distance; McNeel v.
Herold, 11 Gratt, 315, holding that calls for uncertain monuments will be
rejected in favor of calls for those appearing to be certain and consistent.
Federal courts will be guided by construction put upon such statutes by
courts of' respective States.
Cited in Green v. Neal, 6 Pet. 297, 8 L, Ed. 405, construing statute limit-
ing time for bringing action to . recover possession of land ; Thompson v.
Phillips, 1 Bald. 284, Fed. Cas. 13,974, where State court followed, although
criticised, in holding that sale by sheriff under judgment, passes title to
purchaser discharged from prior judgment; Derby v. Jacques, 1 Cliff. 439,
Fed. Cas. 3817, holding that final judgment in writ of entry rendered in
State court is bar to writ of right in Federal court, latter remedy having
been abolished by State statute; Barney v. Keokuk, 4 Dill. 598, Fed. Cas.
1032, construing State statute relative to powers of municipalities to grant
to railroads right to lay tracks in public streets; Hiller v. Shattuck, 1
Flipp. 274, Fed. Cas. 6504, holding Federal courts will take cognizance of
State statute allowing new trials in actions of ejectment; Mitchell v. Lip-
pincott, 2 Woods, 473, Fed. Cas. 9665, as to construction of statute relative
to rights of married woman to mortgage separate property.
Distinguished in Foxcroft v. Mallett, 4 How. 379, 11 L. Ed. 1020, where
rule held not to apply to construction by State court of common-law rules
relating to deeds ; so also in Hart v. Burnett, 15 Cal. 603.
Questions of State law as to which State court decisions must be fol-
lowed in actioiiB originating in, or removed to, Federal courts. Note,
40 L. R. A. (N. 8.) 418.
1—49
2 Wheat. 327-336 NOTES ON U. S. REPORTS. 770
Where no other figure called for in entry, it is snnreyed In square coinci-
dent with cardinal points and large enough to contain given quantity, point
of beginning being center of base line of such square. ,
Approved in Peyton v. Stith, 5 Pet. 488, 8 L. Ed, 201, following rule.
Act of Kentucky extending time limited by Virginia for making sunreys
of entries under military warrants was valid.
Cited in Botts v. Chiles, 2 T. B. Men. 41, and Beard v. Smith, 6 T. B.
Men. '464, 465, 491, construing same statute.
Disability of one co-owner suspends operation of statute as to alL
Approved in Miller's Heirs v. Mclntire, 11 Wheat. 442, 6 L. Ed. 515, fol-
lowing rule; Davis v. Coblens, 12 App. D. C. 60, in joint action in eject-
ment, if one of plaintiffs barred by limitation, his coplaintiff cannot re-
cover; Davis V. Coblens, 174 U. S. 725, 43 L. Ed. 1150, 19 Sup. Ct. 835,
arguendo.
<
2 Wheat. 327-335, 4 L. Ed. 252, THE ANNA MARIA.
Biffht of search is a belligerent right.
Cited in The Springbok, Blatchf . Pr. 352, Fed. Cas. 13,262, holding fur-
ther "that examination may extend to cargo as well as papers.
Anticipated profits cannot be made item of damages for marine trespass.
Approved in Choctaw etc. R. B. Co. v. Jacobs, 15 Okl. 500, 82 Pac. 504,
applying rule in action against railroad for delay in delivering freight;
Tootle v. Kent, 12 Okl. 691, 73 Pac. 315, allowing probable loss of profits
to merchant by attachment brought on by reason of fraudulent chattel
mortgage; Hagan v. Nashville Trust Co., 124 Tenn. 99, 136 S. W. 994, real
estate broker not entitled to commissions on improvements placed on land
sold by owner; Chisholm etc. Mfg. Co. v. Y. S. Canopy Co., Ill Tenn. 210,
77 S. W. 1063, allowing lost profits as damages for breach of contract to
manufacture of patent brackets ; Howard v. Stillwell etc. Co., 139 U. S. 206,
35 L. Ed. 150, 11 Sup. Ct. 503, holding in action to recover contract price
for erecting machinery that loss of profits by reason of delay in executing
contract cannot be deducted by way of damages; Cincinnati Gas Co. v.
Western etc. Co., 152 U. S. 206, 38 L. Ed. 418, 14 Sup. Ct. 525, where, in an
action to recover contract price of goods delivered under assignment of
patent right, assignee was not allowed to claim damages for loss of profits
resulting from assignor's competition ; The Umbria, 166 U. S. 422, 41 L. Ed.
1062, 17 Sup. Ct. 617, as to loss of expected profits of charter-party not
yet entered into; The Mary J. Vaughan etc., 2 Ben. 50, Fed. Cas. 9217,
holding measure of damages for loss of cargo in collision to be primal cost
and not market value in port to which consigned ; Coweta Falls etc. Co. v.
Rogers, 19 Ga. 421, 65 Am. Dec. 606, applying rule in action for damages
for failure to execute contract for construction of mill, and in Cincinnati v.
Evans, 5 Ohio St. 604, as to loss of profits from personal service resulting
from interruption of business by destruction of building used as store.
771 COLSON V. THOMPSON. 2 Wheat. 336-345
Measure of damaxeB for marine trespass resultdng In loss of Tessel and
cargo is yalne of vessel and prime cost of cargo togetli^r with all diarges, in-
cluding premiiim of insurance, wbere paid.
Cited in The Amiable «Nancy, 3 Wheat. 560, 4 L. Ed. 459, where vessel
lost after illegal capture by privateer; The Scotland, 105 U. S. 36, 26
L Ed. 1005, applying rule where loss resulted from collision on high seas;
Pacific Ins. Co. v. Conrad, 1 Bald. 143, Fed. Cas. 10,647, awarding dam-
ages to holder of goods under respondentia bond against person guilty of
conversion; The Steamship Aleppo, 7 Ben. 127, 130, Fed. Cas. 158, where,
in computing damages for loss resulting from collision, court allowed
charges for brokerage and commission in port of shipment; The Ocean
Queen, 5 Blatchf. 494, Fed. Cas. 10,410, under facts similar to those in
principal case; Dyer v. Navigation Co., 14 Blatchf. 489, Fed. Cas. 4225,
holding, however, that where cargo has no fixed value at place of shipment,
value at nearest export market is to be used as basis ; The Harriet New-
hall, 3 Ware, 106, Fed. Cas. 6102, without particular, arguendo.
Interest on sum allowed as damages. Note, 18 L. B. A. 453.
Interest on unliquidated damages. Note, 28 L. B. A. (N. 8.) 9, 10.
Owner of yeMel is liable for wrongful acts of master committed witbin
scope of employment.
Cited in Taylor v. Brigham, 3 Woods, 379, PecL Gas. 13,781, holding
owners liable for conversion of cargo by master; The Albany, 44 Fed. 435,
holding owners of salving vessel liable for embezzlement of cargo by crew ;
so also in The Mulhouse, 17 Fed. Cas. 967.
Miscellaneous. Cited in Fay v. Montgomery, 1 Curt. 269, Fed. Cas. 4709,
and in United States v. Cement, 27 Fed. Cas. 297, but application doubtful.
2 Wbeat. 3S6>345, 4 li. Ed. 253, OOLSON ▼. THOMPSON.
Specific performance will not be decreed wbere contract Is vagne and
uncertain.
Approved in Triumph Electrio Co. v. Thullen, 226 Fed. 295, denying
specific performance to employer of contract of assignment of control over
device of electric generator because not included in contract ; Sharp v. West,
150 Fed. 461, three years' unexplained delay in bringing suit for specific
performance of contract for sale of land bars right; Jones v. Bjrme, 149
Fed. 461, denying specific performance of contract for sale of land obtained
by attorney by breach of trust; Hildreth v. Duff, 143 Fed. 140, applying
rule to contract whereby one party was to work for another to perfect for
him a candy-making machine; Couch v. McCoy, 138 Fed. 701, offer to give
option to purchase realty where written contract embodying terms of option
is clearly ctt;itemplated by both parties does not constitute binding contract
until writi^ executed ; Kane v. Luckman, 131 Fed. 612, applying rule to con-
tract for exchange of lands for cows ; Pressed Steel Car Co. v. Hansen, 128
Fed. 446, applying rule to agreement by employee to assign to employer
patent rights in inventions made by him in course of his employment ; White
v. Wansey, 116 Fed. 349, refusing specific performance when there is conflict
2 Wheat. 336-346 NOTES ON U. S. REPORTS. 772
of evidence as to execution of contract and it is shown that vendor refused to
acknowledge it; Edwards v. Rothkranz, 3 Alaska, 381, refusing to enforce
grubstake contract which is uncertain as to division of interests ; Elliott v.
Elliott, 3 Alaska, 363, denying right to specifically enforce grubstake con-
tract where it was automatic, renewing and perpetual in its action; Marks
V. Gates, 2 Alaska, 527, refusing to specifically perform contract to convey
all property which defendant may acquire in Alaska ; Hurd v. Hotchkiss,
72 Conn. 480, 45 Atl. 14, refusing specific performance where deed made
pursuant to land contract did not include land in suit and no claim made
until after vendor's death and settlement of estate ; Stubblefield v. Stubble-
field, 32 App. D. C. 541, specific performance of contract to sell stock not
decreed where immediate payment not proved as contracted; Waters v.
Ritchie, 3 App. D. C. 389, bill for specific performance of contract to sell
lots will not be enforced where it does not state where lots are; Burke v.
Mead, 159 Ind. 257, 64 N. E. 882, refusing specific performance of contract
to convey land and to subscribe to corporate stock; Cline v. Strong, 52
Ind. App. 287, 100 N. E. 569, letter for sale of real estate cannot be en-
forced if uncertain as to terms; McCauley v. Schatzley, 44 Ind. App. 268,
88 N. E. 974, where contract depends upon other writings for completeness,
it will not be specifically enforced unless proved that other writings were
agreed to ; Kirkpatrick v. Pettis, 127 Iowa, 612, 103 N. W. 957, where, in
suit for specific performance of oral contract to convey land, neither re-
ceipt for earnest-money nor any evidence described land particularly, specific
performance not decreed; Rpsenwald v. Middlebrook, 188 Mo. 99, 86 S. W.
212, denying specific performance of parol contract to will plaintiff all of
decedent's property in consideration of services rendered as decedent's
partner in practice of medicine ; Meyer Land Co. v. Pecor, 18 S. D. 469, 101
N. W. 40, instrument reciting that person named has paid fifty dollars for
tract of land described "for $9,000, $6,000 cash and balance at six per cent,
500 payment per year," signed by owner, is too incomplete; Huston v.
Harrington, 58 Wash. 55, 107 Pac. 876, where price is indefinite and open
to further negotiations, contract cannot be enforced; Cleavenger v. Sturm,
59 W. Va. 667, 53 S. E. 596, executory contract for sale of land will not
be enforced when obtained by misrepresentations ; Hennessy v. Woolworth,
128 U. S. 442, 32 L. Ed. 502, 9 Sup. Ct. Ill, where assent of wife to con-
veyance of her own lands not clearly established; Dalzell v. Deurber etc.
Co., 149 U. S. 325, 37 L. Ed. 755, 13 Sup. Ct. 890, holding employer of
skilled workman not entitled to conveyance of patents on inventions made
by latter while in his employ in absence of express agreement; Tilghman
V. Tilghman's Exr., 1 Bald. 487, Fed. Cas. 14,045, as to marriage settle-
ment where obligation assumed was indefinite; Oakley v. Ballard, Hempst.
478, Fed. Cas. 10,393, holding that where contract stipulated for rescission
of former contract and second contract was afterward rescinded^ first could
not be revived in absence of express agreement ; Bowen v. Watelis, 2 Paine,
8, Fed. Cas. 1725, where contract to convey lands indefinite as to one of
several terms; Marr v. Shaw, 51 Fed. 864, refusing to decree specific per-
formance of oral contract made twenty years previously, circumstances of
773 COLSON v. THOMPSON. 2 Wheat. 336-345
parties rebutting any presumption as /to existence of such contract; Wal-
cott V. Watson, 53 Fed. 435, ' holding declarations of defendant tp strangers
insafficient to prove terms of parol contract; Wenham -v. Switzer, 59 Fed.
947, 15 U. S. App. 302, as to contract of agency for purpose of purchasing
land; Rutledge v. Townsend, 38 Ala. 718, where consideration for contract
of indemnity was indefinite; Blum v. Robertson, 24 Cal. 142, holding that
part performance of parol contract to convey lands must be unequivocal
evidence of agreement alleged; Mintum v. Baylis, 33 Cal. 133, where con-
tract to convey lands failed to identify land; Agard v. Valencia, 39 Cal.
302, where obligation of one party not determinable from contract ; Hallen-
beck V. Prior, 5 Dak. 303, 40 N. W. 348, as to agreement to convey a **block
of average size"; Godwin v. Collins, 4 Houst. 58, holding parol evidence
inadmissible to show intention of parties as to security for unpaid balance
under contract to convey lands; Miller v. Cotton, 5 Ga. 352, holding parol
evidence inadmissible to establish terras of trust; McDaniels v. Whitney,
38 Iowa, 70, 71', where consideration for contract to convey was indefinite ;
Schwanebeck v. Smith, 77 Md. 321, -26 Atl. 411, where contract for which
enforcement sought described land as "all that shall remain," etc.; Elan-
chard v. Railroad Co., 31 Mich. 59, 18 Am. Bep. 154, refusing to decree
specific performance of agreement to erect buildings, contract not having
designated location; Allen v. Bennett, 8 Smedes & M. 681, applying prin-
ciple in refusing to enforce vendor's lien where extent of interest uncer-
tain; Taylor v. Williams, 45 Mo. 84, where contract provided for convey-
anee if vendee was satisfied with vendor's title; Diifenderfer v. Public
Schools, 120 Mo. 455, 25 S. W. 544, holding that covenant which does not
clearly express perpetual right of renewal of lease will not be construed
to confer such right ; Wendover v. Baker, 121 Mo. 295, 25 S. W. 923, hold-
ing further that burden is on complainant to establish contract ; Farrar v.
Crosby, 27 N. H. 28, refusing to enforce trust agreement alleged in bill not
having been supported by proof; Odell v. Morin, 5 Or. 98, Where considera-
tion indefinite and complainant guilty of laches in seeking specific perform-
ance; Plymale v. Comstoek, 9 Or. 321, holding that in order to take parol
contract from statute of frauds, part performance alleged must be proven
to have been of contract alleged ; Pipkin v. James, 1 Humph. 327, 84 Am.
Dec. 654, to point that memorandum of sale of lands to be effective must
contain substantially terms of contract; so also in Sheid v. Stamps, 2
Sneed, 175; Whitehill v. Lowe, 10 Utah, 426, 37 Pac. 590, denying decree
of specific performance of contract to raise money where definite amount
not named ; Eckel v. Bostwick, 88 Wis. 497, 60 N. W. 785, denying decree
where consideration to be paid under contract to convey land, was uncer-
tain; Roundtree v. McLain, Hempst. 246, Fed. Cas. 12,084a, Minnesota
Tribune v. Associated Press, 83 Fed. 357, 55 U. S. App. 148, Bourland v.
Peoria Co., 16 111. 542, Anter v. Miller, 18 Iowa, 412, Edichal etc. Co. v.
Columbia etc. Co., 87 Va. 645, 13 S. E. 101, arguendo.
Distinguished in Millerd v. Russell, Har. Ch. (Mich.) 392, where terms
of contract held to have been explained by act of parties done under it.
\
2 Wheat. 369-371 NOTES ON U. S. REPORTS. 776
costs not taxable; Pillet v. Great Northern Ry. Co., 105 Fed. 195, holding:
attorney's fees may be awarded as costs on remand; State v. Lambert, 52
W. Va. 251, 43 S. E. 178, dismissing writ of error without costs; Homthall
V. The Collector, 9 Wall. 567, 19 L. Ed. 562, where cause dismissed because
diverse citizenship not averred; Citizens' Bank v. Cannon, 164 U. S. 324,
41 L. Ed. 458, 17 Sup. Ct. 91, overruling decree of lower court granting
costs in dismissing case for want of jurisdiction ; Mead v. Piatt, 21 Blatchf .
436, 17 Fed. 836, dismissing appeal from disallowance of claim by District
Court in bankruptcy; Burnham v. Rangeley, 2 Wood. & M. 420, 421, Fed.
Cas. 2177, where bill in equity dismissed for want of jurisdiction of party ;
Thurston County v. Scammell, 7 Wash. 95, 34 Pac. 471, refusing to allow
costs where cause dismissed because of repeal of statute on which it was
based.
Modified in Bradstreet Co. v. Higgins, 114 U. S. 263, 29 L. Ed. 176, 5
Sup. Ct. 880, awarding to defendant in error^ costs incident to his motion
to dismiss.
Distinguished in Phoenix-Buttes Gold Min. Co. v. Winstead, 226 Fed.
864, where want of jurisdiction does not appear on face of complaint,
costs allowed; Bice v. Boothsville Telephone Co., 62 W. Va. 522, 125 Am.
St. Rep. 986, 59 S. E. 502, under special statute, costs may be allowed for
the motion but not for suit.
Power of appellate court to award costs on dismissal of appeal for
want of jurisdiction. Note, 13 Ann. Oas. 1048.
Miscellaneous. Cited in United States v. Eliason, 16 Pet. 301, 10 L. Ed.
972, and Derby v. Jacques, 1 Cliff. 433, Fed. Cas. 3817, to point that writ
of error lies to decision on agreed state of facts.
2 Wheat. 369-371, 4 L. Ed. 2§3, McCLUNY v. 8lLL(tMAN.
Supreme Oonrt has no jurisdiction to- issue mandamus to United States offi-
cer in exercise of its original jurisdiction.
Approved in In re Garrosi, 229 Fed. 365, mandamus will not be granted
by Circuit Court of Appeals to District Court to disturb suit progressing
to judgment to save costs; Degado v. Chavez, 5 N. M. 648, 25 Pac. 948,
collecting cases to show the various purposes for which the writ will lie.
Distinguished in Kendall v. United States, 12 Pet. 615,, 617, 624, 9 L. 'fid.
1217, 1218, 1221, holding that, as common law of Maryland remained in
force in District of Columbia, Circuit Court of district could issue such
writ, although power not granted by statute (but see dissenting opinion,
p. 652, 9 L. Ed. 1232) ; People v. Turner, 1 Cal. 147, 52 Am. Dec. 298, hold-
ing, that although State Supreme Court cannot, in exercise of original
jurisdiction, issue writ of mandamus, it may, as incident to appellate juris-
diction, issue such writ to compel lower court to vacate decree.
Original jurisdiction of court of last resort in mandamus. Note, 58
Ij. R. a. o47.
State court has no jurisdiction to issue mandamus to United States officer.
Cited in Lewis v. Lewis, 9 Mo. 186 (185), 43 Am. Dec. 541, denying an-
thorit(7 of State court to set aside decision of Federal land office.
777 . NOTES ON U. S. REPORTS. 2 Wheat. 371-377
Distingnished in Ex parte Hill, 38 Ala. 461, 462, 463, maintaining right
of State conrt to inquire by habeas corpns into legality of imprisonment
by Confederate authorities, for violation of "conscript laws" (but see dis-
senting opinion, pp. 471, 485).
Miscellaneous. Cited in United States v. Clement, 27 Fed. Cas. 297,
but not in point.
2 WlLeat. 371-S73, 4 L. 'Ed. 264, THE LONDOK FAOEET.
Supreme Conrt will hear cause upon evidence transmitted tiom Olrcult
Court, in first Instance, and decide upon that evidence whether It Is proper to
allow further proof.
Cited in The Sally Magee, 3 Wall. 459, 18 L. Ed. 200, holding further
as to method of making application for order to take further proof. .
2 Wheat. 37S-377, 4 Ii. Ed. 264, IiENOX v. BOBEBTa
Assignment of note under general assignment for benefit of creditors con-
fers on assignees right to sue In equity other parties thereto.
Cited in Curran v. Arkansas, 15 How. 311, 14 L. Ed. 709, holding that
creditors of insolvent corporajtion may pursue its assets into hands of all
other persons except bona fide creditors or purchasers; Bacon v.* Robert-
son, 18 How. 486, 15 L. Ed. 502, as instance where court recognized validity
of assignment made by corporation in anticipation of expiration of charter;
Nevitt V. Bank, 6 Smedes & M. 530, holding that act of legislature provid-
ing for ^assignment of assets of bank in case of violation of franchise is
not unconstitutional as impairing* obligation of debtor's contracts (but see
dissenting opinion, p. 578, distinguishing principal case) ; Bacon v. Cohea,
12 Smedes & M. 526, under facts similar to those in principal case ; Taylor
V. Reese, 44 Miss. 93, sustaining right of executor to recover in equity on
notes held by testator; Flint v. Clinton Co., 12 N. H. 436, as instance of
e/ercise by corporation of right to assign f Ontario Bank v. Mumford, 2
Barb. Ch. 615, sustaining right of assignee in bankruptcy of obligee on
bond to recover on bond in equity where assignor refuses to join in action
at law; De Ruyter v. St. Petefs Church, 3 Barb. Ch. 124, on point that
corporation possesses some rights of assignment as natural persons; so also
in McKay v. Elwood, 12 Wash. 583, 41 Pac. 920.
Distinguished in Hayward v. Andrews, 106 U. S. 678, 27 L. Ed. 273,
1 Sup. Ct. 549,, and Walker v. Brooks, 125 Mass. 246, holding that assignee
of chose in action cannot proceed in equity to enforce, for his own uBe,
the legal right of his assignor, merely on ground that he cannot maintain
action in his own name.
Demand of payment of note must be made on last day of grace and notice
of default must be put into postol&ce early enough to be sent by mail of suc<
ceedlng day.
Approved in Lewis v. Montgomery Supply Co., 59 W. Va. 83, 4 L. B. A.
(N. S.) 132, 52 S. £. 1020, if mail closes at unreasonably early hour
on day after presentment, check need not be forwarded to payee by such
2 Wheat. 377-379 NOTES ON U. S. REPORTS. • 778
mail; Bank of Alexandria v. Swann, 9 Pet. 45, 9 L. Ed. 45, and Dickens
V. Bealy 10 Pet. 581, 9 L. Ed. 541, holding, however, that liability of en-
dorser depends upon due diligence of holder and not upon actual notice;
Bank of Alexandria v. Swann, 4 Cr. C. C. 137, 138, Fed. Cas. 853 (reversed
by 9 Pet. 45, supra),' holding indorser not bound where, although notice
mailed on day of dishonor, it was too late to be included in mail leaving
next day; United States v. Barker, 24 Fed. Cas. 1003, holding that burden
is upon plaintiff to show that notice was so sent; so also in Moore v. Burr,
14 Ark. 232, to same effect; Sanderson's Admrs. v. Sanderson, 20 Fla,
304, denying liability of indorser where notice sent on second day after
dishonor; Goodman v. Norton, 17 Me. 384, under facts similar to those in
principal case; Farmers' Bank v. Duvall, 7 Gill & J. 92, holding, however,
that where mail closes at unreasonable hour, holder not obliged to mail
notice until following day; Shed v, Brett, 1 Pick. 409, 11 Am. Dec. 213,
to point that indorser is charged by mere mailing of notice, although he
never receives it ;• Housatonic Bank v. Laflin, 5 Cush. 550, holding further
as to form of notice; Downs v. Bank, 1 Smedes & M. 276, 40 Am. Dec. 94,
holding insufficient, proof that notice was sent by mail on day following
protest, without showing that it was sent by earliest mail on such day;
Carter v. Burley, 9 N. H. 570, ruling similarly as to notice from one in-
dorser to prior indorser; Smith v. Little, 10 N. H. 532, holding sufficient,
notice mailed on last day of grace ; Manchester v. Fellows, 28 N. H. 309, hold-
ing further as to burden of proof ; Sussex Bank v. Baldwin, 17 N. J. L. 493,
where authorities- collected and discussed; Burgess v. Vreeland, 24 N. J. L.
78, 59 Am. Dec. 412, holding indorser not bound where notice not, sent in
first mail after commencement of business hours on day following dis-
honor; State Bank v. Smith, 3 Murph. (N. C.) 73, holding indorser dis-
charged where notice not given for two days after dishonor; Lawson v.
Bank, 1 Ohio St. 214, holding, however, that where such mail closes at an
unreasonable hour, notice may be sent on succeeding day; Wilson v. Willi-
man, 1 Nott & McC. 441, to pdint that action may be commenced against
maker on third day of grace ; Mitchell v. Degrand, 1 Mason, 180, Fed. Cas.
9661; Whittlesey v. Stone, 2 Aikens, 264, ai^endo. "
Modified in Chick v. Pillsbury, 24 Me. '464, 41 Am. Dec. 897, holding
indoYser charged by mailing of notice within convenient time after com-
mencement of business hours on day succeeding that of dishonor (but see
dissenting opinion, p. 474).
Effect of dissolution of coiporations. Note, 12 Am. Dec. 241.
Effect of production of bill or note not transferable by delivery to
establish plaintiff's title. Note, 50 L. B. A. (N. S.) 587.
Miscellaneous. Cited in Adair v. Winchester, 7 Gill & J, 120, to point
that mere assignment does not give equity jurisdiction; Parkison v.
McKim, 1 Pinn. 220, to point that question as to sufiiciency of notice is
one of law and cannot be submitted to jury.
2 Wheat. 377-379, 4 L. Ed. 266, OOLSOK v. IiEWIS.
Federal courts have Jurisdiction of controversy as to land title between
claimants under Kentucky and Virginia grants.
779 LEEDS v. MARINE INSURANCE CO. 2 Wheat. 380-384
Distingnislied in Stevenson v. Fain, 195 U. S. 169, 49 L. Ed. 144, 25
Sup. Ct. 6, decision of Circuit Court of Appeals is 'final in controversy
between citizens of different states claiming under grants from different
States depending entirely upon diverse citizenship.
2 WHeat. 380-384, 4 X«. Bd. 266» LBEDS ▼. MABINE IN8UBANCE OO.
Answer is evldenee for defendant only so far as responsive to some allega-
tion in bilL
Cited and applied in Boone v. Chiles, 10 Pet. 211, 9 L. fid. 400 ; Robinson
V. Cathcart, 2 Cr. C. C. 600, Fed. Cas. 11,946, and McGowen v. Young, 2
Stew. & P. 168, following rule.
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
pmrchase price.
Answer of one defendant to bill cannot be used as evidence against his
codefendant.
Cited in I>ick v. Hamilton, Deady, 328, Fed. Cas. 3890, where refusal
of husband to answer, held not to be evidence against wife, in proceeding
against them jointly to set aside conveyance; Felch v. Hooper, 20 Me. 163,
holding deposition of defendant submitted as answer, not to be such
evidence.
Answer of agent is not evldenee against principal, nor his admissions in
pais, unless part of res gestae.
Cited in United States v. Martin, 2 Paine, 71, Fed. Cas. 15,732, holding
United States not bound by admissions of agent that there is nothing due
on certain account; Hulbert v. Pacific Ins. Co., 2 Sumn. 479, Fed. Cas.
6919, on point that note made by agent, binding himself personally, can-
not be set off against principal in action on insurance policy ; Betts v. Bank,
3 Stew. 23, as to statements of agent made subsequently to contract;
Woods V. Clark, 24 Pick. 39, as to declarations of master made after sale
of wrecked vessel; Homer v. Fellows, 1 Doug. (Mich.) 54, holding inad-
missible, as against principal, evidence of statement of agent after sale,
that at time of such sale he knew property to be valueless; Gooch v. Bry-
ant, 13 Me. 390, ai^uendo.
Modified in Thalheimer v. Brinckerhoff, 6 Cow. 100, holding admissions
of agent to be evidence against principal where they are part of res gestae.
Declarations and acts of agents. Note, 131 Am. St. Bep. 309.
Proof must correspond with allegations in bill.
Cited in Boone v. Chiles, 10 Pet. 209, 211, 9 L. Ed. 399, 400, holding
that answer not responsive to bill is not evidence against plaintiff; Tilgh-
man v. Tilghman's Exrs., 1 Bald. 495, Fed. Cas. 14,045, denying right of
plaintiff to recover on verbal contract, bill having set out contract in writ-
ing; Byers v. Fowler, 12 Ark. 286, 288, 54 Am. Dec. 287, 289, and Brown
V. Welch, 18 m. 346, 68 Am. Dec. 550, as to necessity for allegations and
proof of good faith, in holder of land under recorded deed, in action to set
aside prior unrecorded deed.
2 Wheat. 385-389 NOTES ON U. S. REPORTS. 780
Where cause is set down for hearing on hill, answer and ezliibits^ witlumt
other pleadings, whole *of answer considered as true.
Cited in Banksr v. Manchester, 128 U. S. 251, 32 L. Ed. 428, 9 Sup. Ct.
39, applying rule where new matter alleged in answer; Parton v. Prang, 3
Cliff. 542, Fed. Cas. 10,784, and Lucas v. Bank, 2 Stew. 306, refusing
injunctions where answer uncontroverted ; In re Sanford etc. Co., 160 U. S.
257, 40 L. Ed. 417, 16 Sup. Ct. 293, and McGowen y. Young, 2 Stew. & P.
168, following rule.
2 Wheat. 886-^89, 4 L. Ed. 268, BABOBa ▼. PEYTON.
Acceptance of bill of exchange affords presumption of fonds of drawer IB
hands of acceptor.
Cited in Benjamin v. Tillman, 2 McLean, 214, Fed. Cas. 1304, holding
accepted bill admissible in behalf of drawer against acceptor, as evidence
of so much money under money counts in assumpsit ; Springfield v. Hickox,
2 Gilm. 248, holding city order drawn by mayor on treasurer to be subject
of setoff in action by city to recover penalty ; Gillilan v. Myers, 31 111. 528,
holding such acceptance to be admission that acceptor has funds of
drawer; Goodwin v. Morse, 9 Met. 279, holding note admissible in evidence
on money counts, in action by indorsee against maker; so also in Brown v.
McHugh, 35 Mich. 53, to same effect; Clement v. Leverett, 12 N. H. 319,
as to acceptance by principal of bill drawn by agent; New Jersey etc. Co.
V. Myer, 12 N. J. L. 148, holding promissory note to be evidence under
money counts in action by indorsee against maker; Black v. Caffe, 7 N. Y.
287, holding bill admissible in action for money had and received ; People's
Bank v. Bogart, 81 N. Y. 106, 37 Am. Bep. 484, holding that payee cannot
defend by showing that he accepted without funds; Haviland v. Simons,
4 Rich. 342, holding bill admissible under count for money had and received
in action by indorsee against acceptor; Dickson v. Cunningham, Mart. &
YI 221, applying principle in action on promissory note by indorsee against
maker; Frazer v. Carpenter, 2 McLean, 243, Fed. Cas. 5069, arguendo.
Modified in Griffith v. Reed, 21 Wend. 505, 84 Am. Dec. 269, holding pre-
sumption rebuttable by showing that drawer accepted for accommodation.
Debt lies by payee or Indorsee of bill of exchange against acceptor where
It Is es^ressed to be for value received.
Approved in United States v. Alcorn, 145 Fed. 1000, in action on pro-
posal bond of mail contractor, fact that government recovered from surety
actual damages sustained by breach of contract is no defense; Ragsdale v.
Gresh^, 141 Ala. 314, 37 South. 369, acceptance of order as between
acceptor and payee, is not collateral promise to pay debt of another ; Green
V. Higgin Mfg. Co., 44 App. D. C. 190, in action on promissory note against
indorser on both special and common counts, evidence that defendant
waived presentment and notice of nonpayment admissible under both;
Titcomb v. Powers, 108 Me. 349, 80 Atl. 852, negotiable note may be given
in evidence in support of counts for money had and received between
indorsee against indorser or maker; Milmo Nat. Bank v. Cobbs, 53 Tex.
Civ. 7, 115 S. W. 348, knowledge of holder of draft that drawer has no
781 UNION BANK OF GEORGETOWN v. LAIRD. 2 Wheat. 390-394
fonds to meet same with drawee no defense against acceptance except in
case of fraud; Hudson v. McNear, 99 Me. 407, 59 Atl. 646, arguendo;
Kirkman v. Hamilton, 6 Pet. 24, 8 L. Ed. S06, ruling similarly as to promis-
sory note ; Bollard v. Bell, 1 Mason, 263, 297, Fed. Cas. 2121, holding such
action to lie in favor of holder of dishonored bank note against stock-
holder of bank, under charter provision making stockholders personally
liable; Frazer v. Carpenter, 2 McLiean, 237, Fed. Cas. 5069, under facts
similar to principal case; Home v. Semple, 3 McLean, 150, Fed. Cas. 6658,
allowing action of debt by payee against drawer; Robinson v. Crenshaw, 2
Stew. A P. 296, 298, applying rule where note payable to bearer; Dunlop
v. Buckingham, 16 111. Ill, holding further that consideration need not
be expressed on face of bill; Lambert v. Sandford, 2 Blackf. 140, 18 Am.
Dec 151, on point that acceptor is principal and not surety as to payee;
National Exchange Bank v. Abell, 63 Me. 348, overruling general de-
murrer to declaration in debt containing count on promissory note; De
Proux ▼. Sargent, 70 Me. 271, holding that count in debt on promissory
note may be joined with count in debt on judgment; Penn v. Flack, 3 Gill
& J. 375, following rule ; Laflin etc. Co. v. Sinsheimer, 48 Md. 418, 30 Am.
Bep. 475, sustaining action by indorsee against acceptor; Beveridge v.
Richmond, 14 Mo. App. 407, as to action against- accommodation acceptor ;
Henschel v. Mahler, 3 Denio, 431, following rule; Anderson v. Crockett, 6
Terg. 331, in action by indorsee against maker of promissory note; Plant-
ers' Bank v. Galloway, 11 Humph. 345, following rule ; Regnault v. Hunter,
4 W. Va. 270, 271, ruling similarly under statute ; Elar v. Express Co., 29
Wis. 618, 9 Am* B6p. 622, to point that privity of contract is not necessary
to sustain action for money had and received ; Diversy v. Moor, 22 III. 332,
74 Am. Dec. 157, and Callett v. Russell, 6 Leigh (Va.), 374, arguendo.
Distinguished in Presbrey v. Thomas, 1 App. D. C. 177, accommodation
indorsements cannot be made by one partner without consent of other so
as to bind firm; Gregory v. Thompson, 31 N. J. L. 169, denying right of
plaintiff to maintain debt on collateral promise to pay debt of another.
Denied in Kennedy v. Carpenter, 2 Whart. 350, holding contra.
2 Wlieat. 390-^94, 4 X«. Ed. 209, UNION BANK OF QEOBGETOWN v. IiAISp.
Transfer of corporate stock can be made only In manner provided for t>y
roles of corporation.
Approved in People's Bank v. Exchange Bank, 116 Ga. 828, 94 Am. St.
Rep. 144, 43 S. E. 272, following rule; Faulkner v. Bank of Topeka, 77
Kan. 390, 94 Pac. 155, transfer of shares on books of company may be re-
fused purchaser where vendor indebted to company though indebtedness
accrued after sale; Foster v. Row, 120 Mich. 22, 77 Am. St. Bep. 582, 79
K. W. 704, holding insolvency of bank does not avoid stock transfer as an
attempt to evade stockholder's liability; Lacaff v. Dutch Miller etc. Co., 31
Wash. 572, 72 Pac. 114, holding transferee of stock must allege entry of
transfer on book of company before he can compel issuance of certificates ;
Brent v. Bank, 10 Pet. 614, 616, 9 L. Ed. 554, 565, holding that where
bank charter provided that debts due corporation must be paid before
2 Wheat. 390-394 NOTES ON U. S. REPORTS. 782
transfer of stocky executor of deceased stookholder could not maintain
suit in equity to compel transfer before such payment; Moores v. Piqua
Bank, 111 U. S. 165, 28 L. Ed. 388, 4 Sup. Ct. 349, holding mere assign-
ment of certificate of stock inoperative to pass title where charter pro-
vided that all transfers should be made on books of corporation; In re
Dunkerson, 4 Biss. 231, Fed. Cas. 4156, holding bank not bound to transfer
stock at instance of assignee, in manner other than that provided by
charter; Knight v. Bank, 3 Cliff. 433, Fed. Cas. 7885, holding valid, act of
bank in refusing to transfer stock in mode in conflict with by-laws ; Cronin
v, Patrick County, 4 Hughes, 531, 89 Fed. 79, holding title to registered
municipal bonds not complete until transferred on books of obligor; Cun-
ningham V. Insurance Co., 4 Ala. 654, holding valid a by-law declaring
that "no stockholder shall be permitted to transfer his stock while he is
in default"; Jennings v. Bank, 79 Cal 331, 12 Am. St. Rep. 151, 21 Pac.
855, holding invalid, transfer of stock not "made on books" as required
by statute; Bank of Holly Springs v. Pinson, 58 Miss. 435, 38 Am. Rep.
332, holding provision in charter or by-laws furnishes constructive notice,
although party be bona fide purchaser; Berich v. Mayre, 9 Nev. 316, hold-
ing transfer not in conformity to charter provision to be subject to equi-
ties against stockholder; Mechanics' Bank v. Railroad Co., 13 N. Y. 626,
holding bank not liable to transferee for damage resulting from dealing
on faith of certificate not transferred in manner provided by charter;
dissenting opinion in Bank of Attica v. Manufacturers* etc. Bank, 20 N. Y.
510, majority holding that delegation of general powers to directors of
bank did not authorize by-law subjecting stock to general lien; Lyndon-
ville V. Folsom, 7 N. M. 615, 38 Pac. 254, holding that stock cannot pass
under general assignment without proper transfer on books of coqiora-
tion ; Morgan v. Bank, 8 Serg. & R. 87, 89, 11 Am. Dec. 577, 579, holding
further that where stockholder is entitled to transfer, he may maintain
special action on case against bank for refusing such transfer; Lockwood
v. Bank, 9 R. I. 331, 11 Am. Rep. 264, holding that power to regulate
transfer of stock is sufficient to authorize by-law providing that transfer
shall not pass legal title until made on books; Lippitt v. American etc.
Co., 15 R. I. 145, 2 Am. St. Rep. 888, 23 Atl. 112, holding equitable title
acquired by irregular transfer, not attachable under State statute; Appli-
cation of Murphy etc., 51 Wis. 525, 8 N. W. 421, holding indorsement and
delivery of shares inoperative to convey legal title to shares in manufac-
turing corporation; Lowry v. Bank, Taney, 331, Fed. Cas. 8681, Cronin v.
Patrick County, 89 Fed. 82, Toole v. State, 88 Ala. 165, 7 South. 44,
Fisher v. Bank, 5 Gray, 381, dissenting opinion in Le^ett v. Bank, 24
N. Y. 287 , De Voss v. Richmond, 18 Gratt. 351, 98 Am. Dec. 655 , Michigan
Trust Co. v. Bank, 111 Mich. 311, 69 N. W. 647, arguendo.
Distinguished in the following cases, holding rule inapplicable where
transfer is of equitable interest only: Black v. Zacharie, 3 How. 513, 11
L. Ed. 704, Leyson v. Davis, 170 U. S. 40, 42 L. Ed. 941, 18 Sup. Ct. 501,
United States v. Cutts, 1 Sumn. 148,. Fed. Cas. 14,912, Bruce v. Smith, 44
Ind. 5, Broadway Bank v. McElrath, 13 N. J. Eq. 27; so also transfer,
although not operative as to corporation, is good as between parties; St.
783 UNION BANK OF GEORGETOWN v. LAIRD. 2 Whe^t. 390-394
•
Louis etc. Ins. Co. v. Goodfellow, 9 Mo. (154) 155; Commercial 6ank ▼.
Kortright, 22 Wend. 353, 84 Am. Dec. 319; New York etc. Ry. €o. v.
Schuyler, 34 N. Y. 80; Noyes v. Spaulding, 27 Vt. 426. Distinguished also
in Johnson v. Laflin, 5 Dill. 76, 79, 80, Fed. Cas. 7393, holding that bank
cannot refuse to execute bona fide transfer of stock on request of assignee ;
Northrup v. Curtis, 6 Conn. 252, under facts: Baltimore etc. Co. v. Sewell,
35 Md. 253, 6 Am. Bep. 406, sustaining right of assignees to demand
transfer of stock assigned before incorporation; Merchants' Bank v. Rich-
ards, 6 Mo. App. 462, holding that where form of transfer is not provided
in charter nor by general laws, delivery of certificate is sufficient; Hill v.
Bank, 45 N. H. 309, under facts ; Conant v. Seneca County Bank, 1 Ohio St.
306, holding an equitable interest passes, although no transfer on cor-
porate books; Ireland v. Globe etc. Co., 38 Atl. 118, as inapplicable to
question at issue; Ireland v. Globe Milling & Reduction Co., 20 R. I. 195,
38 L. E. A. 299, 38 Atl. 118, holding agreement between stock subscribers
and corporation prior to incorporation is invalid to prevent transfer of
stock without giving corporation preference; Williams v. Birmingham etc.
Ry. Co., 129 Tenn. 688, 168 S. W. 162, word "may" in railroad mechanic's
lien law will be construed as "shall" to effect pui-pose of statute.-
Lien of corporation on Its shares for debt due from holder Is superior to
Uen acquired from such bolder by third person.
Approved in United Cigarette Mach. Co. v. Winston Cigarette Mach. Co.,
149 Fed. 959, 114 C. C. A. 583, lien reserved embraces demand for damages
and not restricted to mere engagement to pay subscription for stock;
Curtice v. Crawford County Bank, 110 Fed. 832, holding bank's priority
of lien on stock of borrower over that of pledgee of stock depends on notice
of pledge; Bankers' Trust Co. v. McCloy, 109 Ark. 167, 47 L. R. A. (N. S.)
333, 159 S. W. 207, purchaser of stock not chargeable with notice of lien
created under by-laws of corporation; Dempster Mfg. Co. v. Downs, 126
Iowa, 83, 106 Am. St. Rep. 340, 101 N. W. 736, lien in favor of corporation
on stock of members on account of debts due corporation from them may
be created by articles of incorporation; Herman Goepper &. Co. v. Phoenix
B. Co., 115 Ky. 716, 74 S. W. 728, where bonds were deposited as collateral
for notes in which no provision was made requiring pro tanto release of
collateral or partial payment, creditor could hold entire collateral as
security for balance of debt; Hammond v. Hastings, 134 U. S. 403, 404,
33 L. Ed. 962, 963, 10 Sup. Ct. 728, holding sale to bona fide purchaser
inoperative to dischai^e such lien; Knight v. Bank, 3 Cliff. 439, Fed. Cas.
78^, holding that bona fide assignee of such stock takes it subject to all
equities existing against assignor; In re Peebles, 2 Hughes, 397, Fed. Cas.
10,902, 13 Bank. Reg. 152, holding that lien is general and exists although
debt otherwise specially secured; In re Morrison, 10 Bank. Reg. 105, 17
Fed. Cas. 831, sustaining lien of bank on stock as security for note,^ •
although note indorsed by third party; Cunningham v, InsurSjpce Co., 4
Ala. 657, denying right of owner to have transfer of stock made until debt
paid; Mobile Ins. Co. v. Cullom, 49 Ala. 562, holding that such lien is
general and not confined to debt contracted for stock; Van Sands v. Bank,
2 Wheat. 395 NOTES ON U. S. REPORTS. 784
26 Conn. 154, on point that priority of time makes superiority of lien;
Savings Inst. v. Bank, 89 Me. 504, 36 Atl. 996, denying right of assignee
to demand transfer until debt of stockholder paid; Farmers' Bank ▼.
Iglehart, 6 Gill, 56, holding equitable assignment of such stock to be
subject to equities in favor of bank; dissenting opinion in Bank of Attica
V. Manufacturers' etc. Bank, 20 N. Y. 510, 511 ; Hampton etc. R. R. Co. v.
Ban^, 48 S. C. 134, 26 S. E. 243, on point that corporate stock is not
negotiable and assignee takes it subject to all equities; Petersburg etc. Co.
V. Lumsden, 75 Va. 340, but holding such lien to extend only to debts due
on stock.
Distinguished in Mechanics' Bank v. Seton, 1 Pet. 309, 7 L. Ed. 157»
holding stock held in trust, not subject to lien for debt due from trustee per-
sonally; Farmers' Bank Case, 2 Bland Ch. 397, holding that vhere bank
refuses to sell stock to satisfy lien against estate, executor may file bill
in equity to compel it to do so; Driscoll v. Bradley etc. Co., 59 N. Y. 101,
108, holding stock not subject to lien where not so provided in charter or
by-laws.
Validity and effect of provision in charter, statute or by-law creating
lien on stock in favor of corporation. Note, 8 Ann. Gas. 188, 189.
Right of junior to compel paramount creditor to resort primarily to
property of third person. Note, 39 L. B. A. (N. S.) 1001.
Priority as between lien of corporation and pledgee or purchaser of
stock. Note, 89 L. B. A. (N. 8.) 294.
JAen of corporation on its ahares for debt due from owner Is not mXvea
by acceptance of other security.
Cited in Trotter v. Crockett, 2 Port. 412, to point that creditor may
lawfully take and hold several securities for same debt; so also in Cocke
v. Chaney, 14 Ala. 66 ; Kenton Ins. Co. v. Bowman, 84 Ky. 438, 440, 441, 442,
1 S. W. 718, 719, 720, holding lien not waived by acceptance of mortgage
as security for same debt; Reese v. Bank, 14 Md. 281, 74 Am. Dec. 538,
holding lien not waived by provision in certificate that stockholder is
entitled to transfer of stock on surrender of such certificate; Wiggin v.
Insurance Co., 18 Pick. 157, 29 Ain. Dec 582, holding that court of law
will not oblige creditor to marshal claims; Breedlove v. Stump, 3 Yerg.
277, on point that security held by indorser of note is not waived by de-
mand for other security.
Recovery on one security cannot impair right to recover on another
unless first recovery has been productive of satisfaction of principal
debt. Note, 32 Am. St. Bep. 727.
Miscellaneous. Cited in Watkins v. Worthington, 2 Bland Ch. 529, and
Van Sands v. Bank, 26 Conn. 154, but application doubtful.
2 Wbeat. 396, 4 L. Ed. 271, XTNTTED STATES v. BABKES.
Jurisdiction of Oircuit Court is final, in civil cause carried to that court
from District Court by writ of error.
785 UNITED STATES V. BARKER, 2 Wheat. 395
Approved in Sarchet v. United States, 12 Pet. 144, 9 L. Ed. 108S, dis-
missing appeal from judgment in action on bond. Approved in Holmes
▼. Jennison, 14 Pet. 621, 10 L. Ed. 623, discussing jurisdiction of Federal
courts generally.
Ifnlted States are not liable to jndisment for costs.
Approved in United States v. Dickson, 127 Fed. 775, refusing costs
against government on dismissal of proceedings to condemn land for
government building; District of Columbia v. Lyon, 7 Mackey (D. C), 224,
where defendant on appeal to criminal court from police court was ac-
quitted, he cannot recover costs or witness fees ; State v. Williams, 101 Md.
53^ 109 Am. St. Rep. 583, 1 L. R. A. (N. S.) 254, 61 Atl. 299, costs cannot
be awarded against State ; Sandberg v. State, US Wis. 589, 89 N. W. 507,
refusing costs against State; Stanley v. Sehwalby, 162 U. S. 272, 40 L. Ed.
966, 16 Sup. Ct. 761, where judgment rendered against Federal officers in
action of trespass to try title brought by State ; United States v. Verdier,
164 U. S. 219, 41 L. Ed. 409, 17 Sup. Ct. 44, holding that in actions in
Court of Claims, interest prior to judgment cannot be allowed to claim-
ants against United States; Carlisle v. Cooper, 64 Fed. 474, 26 U. S. App.
240, reversing decree for costs in District Court in proceedings for con-
demnation of lands; Governor v. Powell, 23 Ala. 582, applying rule in
case of summary proceedings on behalf of State in State court; Bicknell
V. Amador County, 30 Cal. 239, holding county not liable for costs in action
by clerk to recover fees; Rawley v. Vigo County, 2 Blackf. 356, holding
county not bound to pay fees of officer in case of prosecution on behalf of
State, and in which prosecution fails ; State v. Succession of Taylor, 33 La.
Ann. 1272, holding that defendant in suit brought by State in its own
courts (jannot require State as plaintiff to furnish security for costs;
Finney v. Sullivan Coanty, 48 Mo. 352, holding county not liable in action
to recover witness fees, where witness summoned by State and county
not party; dissenting opinion in Bush v. Geisy, 16 Or. 361, 19 Pac. 126,
majority holding that statute providing that costs shall be awarded the
prevailing party included the State as well as individuals; United States
V. Stevens, 8 Utah, 4, 28 Pac. 870, holding United States not liable to
costs on dismissal of action on official bonds; Wisconsin v. Doty, 1 Pinn.
405, holding territory to be subject to immediate control of Federal govern-
ment, and so not liable to costs on failure of action brought in its behalf;
Hathaway v. Roach, 2 Wood, ft M. 68, Fed. Cas. 6213; Curtis v. Banker,
136 Mass. 360, arguendo.
Distinguished in United States v. Davis, 54 Fed. 153, 155, 12 U. S. App.
47, under statute providing for recovery of costs in proceedings to revise
decision of general appraisers.
Costs where the United States is a party. Note, 16 Am. Dec. 407.
Liability of State or Federal government for costs. Note, 8 Ann. Oas.
398.
1—60
2 Wheat. 396-426 NOTES ON U. S. REPORTS. 786
2 Wheat. 396-426, 4 Ik Ed. 271, THELXJSSON ▼. SMITH.
United States has preference over all otber creditors of insolvent del>tor.
Cited in United States v. Duncan, 4 McLean, 622, Fed. Cas. 15,003, hold-
ing that rule requiring marshaling of claims is not enforceable as against
United States ; United States v. Duncan, 12 111. 535, 542, 543, arguendo.
Limited in Postmaster-General v. Robbins, 1 Ware, 169, Fed. Cas. 11,314,
holding that such right cannot operate to impair dower right of deceased
insolvent's widow ; State v. Harris, 2 Bail. 600, holding rule to be statutory,
and denying right of State to such priority in absence of statute.
Priority of State of United States in payment. Note, 29 L. B. A. 231»
236, 238.
Mere inability of debtor of Tltlted States to pay all his debts gives no
rigbt of preference to United States, unless tbere is assignment for benefit of
creditors.
Cited in United States v. McLellan, 3 Sumn. 352, Fed. €as. 15,698, where
assignment to one or more of several creditors of property sufficient to
satisfy amounts due them, and not for benefit of all creditors, held not
to create United States right to priority ; Dudley's Case, 7 Fed. Cas. 1154,
1155, sustaining execution on property of debtor issued before final decree
of bankruptcy passed; United States v. Crookshank, 1 Edw. Ch. 237, hold-
ing that such priority relates to living debtors only, and cannot extend
to property already vested in heirs; Ex parte Hull, 12 Fed. Cas. 857,
arguendo.
Priority of United States may be defeated by bona fide conveyance of
property by debtor to tbird person, or seizure nnder execution before rigut
accrues.
Approved in Frame v. Bivens, 189 Fed. 790, mortgage is conveyance
amounting to an alienation within act of 1904, removing restrictions on
Indian allottees; In re Bennett, 153 Fed. 690, 82 C. C. A. 531, claim given
priority by State statute as to debt but not as to creditor may be assigned
before bankruptcy, and assignment passes priority to assignee; S. H.
Hawes & Co. v. Wm. R. Trigg Co., 110 Va. 206, 65 S. E. 554, contract
lien of United States for amounts advanced on purchase price in building
ship is inferior to lien for work fi^id material; dissenting opinion in New
York Terminal Co. v. Gaus, 204 N. Y. 523, 98 N. E. 15, majority holding
that corporation franchise tax superior to. lien of existing mortgage;
Conard v. Insurance Co., 1 Pet. 441, 442, 443, 451, 7 L. Ed. 213, 214, 217,
holding that priority of United States cannot divest specific lien, previously
attached by mortgage ; United States v. Bank, 3 Story, 81, Fed. Cas. 14,715,
holding right of United States defeated by attachment prior to insolvency
of debtor; United States v. McLellan, 3 Sumn. 355, Fed. Cas, 15,698, as to
bona Rde transfer to one of several creditors in satisfaction of debt;
United States v. Delaware Ins. Co., 4 Wash. 421, Fed. Cas. 14,942, holding
right as to vessel defeated by previously executed respondentia bond; and
in Atlantic Ins. Co. v. Conard, 4 Wash. 672, Fed. Cas. 627, to same effect
(see 1 Pet. 441, 7 L. Ed. 213, etc., supra) ; United States v. Hawkins' Heirs,
787 THELUSSON t. SMITH. 2 Wheat. 396-426
4 Mart.. (La.) (N. S.) 327, 334, denying preference of United States in
insolvent estate over mortgage creditor ; Farmers' Bank v. Beaston, 7t Gill
& J. 426, 28 Ahl Dec. 229, as to prior * attachment. Rule extended in
United States v. Hahn, 37 Mo. App. 583, holding that claims of United
States do not take precedence over widow's dower, nor of expenses of ad-
ministering on deceased insolvent's estate; Wilcocks v. Wain, 10 Serg. & R.
380, holding priority defeated by previously executed mortgage; Savings
and Loan Society v. Multnomah County, 169 U. S. 428, 42 L. Ed. 805, 18
Sup. Ct. 396 ; Perry Mfg. Co. v. Brown, 2 Wood. & M. 454, Fed. Cas. 11,015,
arguendo.
Distinguished in United States v. Duncan, 4 McLean, 630, Fed. Cas.
15,003, doubting application of rule where such lien merely general; Cot-
trell V. Pierson, 2 jicCrary, 393, 12 Fed. 807, where principal case, under
misconception as to holding, is cited as having been overruled.
Judgment of XJni^ States court gives Judgment creditor lien on debtor's
lands and preference over all subsequent judgment creditors.
Cited in Koning v. Bayard, 2 Paine, 257, Fed. Cas. 7924, sustaining de-
murrer to plea to' scire facias, praying execution on lands under judgment
of Circuit Court; Kimball v. Jenkins, 11 Fla. 125, 89 Am. D^c. 241, holding
further that lien of execution issued during lifetime of defendant is not
affected by his death; Bowen v. Billings, 13 Neb. 442, 14 N. W. 153, holding
judgment against partnership to create lien on partnership property ; Storm
V. Waddell, 2 Sand. Ch. 527, 528, holding that discharge in bankruptcy
does not operate to discharge previously acquired lien.
Distinguished in Metz v. Bank, 7 Neb. 171, holding that such lien is
general and postponed to all prior liens ; Presbyterian Corporation v. Wal-
lace, 3 Rawle, 158, under statute.
Denied in Thompson y. Avery, 11 Utah, 240, 39 Pac. 837, holding judg-
ments of Federal courts are not liens on debtors' lands, except where
declared to be so by law of territory.
Lien of Federal court judgment. Note, 47 L. B. A. 472, 479.
Miscellaneous. Cited in Smythe v. United States, 188 U. S. 173, 47 L. Ed.
431, 23 Sup. Ct. 284, in action on official bond refusilig setoff of claim
which had never been presented; Lewis v. United States, 92 U. S. 622,
23 L. Ed. 514, 14 Bank. Reg. 68, as instance of practice in bankruptcy pro-
ceedings; also in United States v. The Areola, 24 Fed. Cas. 850, to point
that title by mortgage passes to mortgagee.
2 Wheat. APPENDIX 30.
Miscellaneous. Cited in The Benito Estenger, 176 U. S. 578, 44 L. Ed.
596, 20 Sup. Ct. 493, arguendo.
/
NOTES
ONTHB
UNITED STATES REPORTS^
in WHEATON.
3 Wheat. 1-14, 4 I.. Ed. 319, JA0K80K ▼. CI.ABXE.
Engllflh devisee under EngllBli will of 1776, of lands In New York, held
entitled to take under treaty of 1794 and New York statute.
Cited in Kershaw v. Kelsey, 100 Mass. 576, 97 Am. Dec. 188, holding
citizen of rebel State letting plantation during war may maintain action
here for rent; Hardy v. De Leon, 5 Tex. 240, showing difference between
an alien and an alien enemy.
8 Wlieat. 14-62, 4 L. Ed. 322, THE FSIENDSOHAPT.
Bill of lading consigning goods to neutral but unaccompanied by Invoice
does not entitle claimant to restitution.
Cited in Webb v. Robinson, 14 Ga. 227, holding vendor's equitable title
does not defeat creditor without notice.
lofonnal proceedings In District Court corrected In Circuit Court.
Cited in United States v. Three Hundred and Ninety-six Barrels, 28 Fed.
Cas. 121, following rule.
Native character as dtlsen does not revert by mere return to native
country.
Cited in Bumham v. Rangeley, 1 Wood. & M. 11, Fed. Cas. 2176, hold-
ing same as to temporary return to family; United States v. Chong Sam,
47 Fed. 886, holding one entering this country with return certificate does
not acquire a domicile; Cadwalader v. Howell, 18 N. J. L. 144, holding
residence not lost by occasional absences if it be animo revertendi.
3 Wheat. 63-67, 4 It. Ed. 332, McIVEB v. EYGER.
When specific performance of a valid contract will be refused, the
refusal not being because the property is of any particular class.
* Note, 128 Am. St. Bep. 404.
(789)
3 Wheat. 58-168 . NOTES ON U. S. REPORTS. 790
3 Wheat. 58, 4 L. Ed. 333, THE DIANA.
Interest allowed iiin>ii appraised value of cargo condemned from date of
decree in District Court.
Approved in One Hundred and Ninety-nine Barrels of Whiskey v. United
States, 94 U. S. 91, 24 L. Ed. 59, and The Wanata, 95 U. S. 618, 24 L. Ed.
467, following rule; The Newaygo, 205 Fed. 181, holding modem tendency
is to conform to State rate.
Interest on unliquidated damages. Note, 28 L. B. A. (N. S.) 8*
3 Wheat. 69-77, 4 L. Bd. 333, THE NEW YORK.
To excuse violation of noninterconrse law distress must he urgent and ^]pro-
duce well-grounded fear of loss of vessel or crew.
Cited in Ex parte Law, 36 Ga. 311, as to degree of necessity that will
excuse. See, also, dissenting opinion in The Aeolus, 3 Wheat. 407, 4 L. Ed.
421, reiterating dissent in this case.
Where inducements to conunission of illegal act are great, most satisfac-
tory proof of innocence required of person seeking relief from consequences.
Approved in Parris v. United States, 1 Ind, Ter. 46, 35 S. W. 244, ap-
proving instruction in prosecution for introducing liquor to Indian country
that burden was on defendant to prove he procured liquor in country.
3 Wheat. 77, 4 L. Ed. 338, THE aAMUEI*.
Witness offered to be examined viva voce in open court in an instance
cause, ordered to he examined out of court.
Cited in The Philadelphia, 60 Fed. 428, 21 U. S. App. 90, following rule.
In case of admiralty appeal, new testimony may be introduced.
Cited in Vanderheyden v. Reid, 1 Hopk. Ch. 412, applying rule on pro-
bate appeal; dissenting opinion in Nickels v. Griffin, 1 Wash. Ter. 3M,
majority denying motion to admit new proofs.
3 Wheat. 78, 4 L. Ed. 338, THE SAN PEDBO.
Not cited.
3 Wheat. 78-101, 4 L. Ed. 338, THE STAR.
Miscellaneous. Cited in The Revere, 2 Sprague, 119, Fed. Cas. 11,716,
as an instance of condemnation because of false destination.
3 Wheat. 101-158, 4 L. Ed. 343, LANUSSE Y. BABBEB.
Where general authority given to draw hills from certain place on account
of advances made there, undertaking is to replace money at that place.
Approved in Boyle v. Zacharie, 6 Pet. 644, 8 L. Ed. 531, holding contract
of suretyship entered into by consignee at New Orleans to release vessel
from attachment and the implied contract of consignor to indemnify are
Louisiana contracts; Cook v. Moffat, 5 How. 314, 12 L. Ed. 168, holding
where resident of New York sold goods, and note was delivered to him.
791 LANUSSE v. BARBER. 3 Wheat. 101-158
there it was a New York contract ; Scadder v. Bank, 91 U. S. 411, 23 L. Ed.
248, holding bill of exchange drawn and accepted at a certain place is
governed by its laws; Pritchard v. Norton, 106 U. S. 139, 27 L. Ed. 109,
1 Sup. Ct. 114, holding a bond delivered in New York to indemnify one
signing appeal bond in Louisiana is governed by law of latter State;
Mygatt V. City of Green Bay, 1 Biss. 295, Fed. Cas. 9998, where obligation
is payable at a particular place and is necessarily sued at a place where
exchange is in favor of the place of payment, party can recover real dif-
ference of exchange; Woodhull v. Wagner, Bald. 302, Fed. Cas. 17,975,
holding defendant's bond to pay where money was advanced; as also in
Grant v. Healey, 3 Sumn. 525, Fed. Cas. 6696, and Towne v. Smith, 1 W^ood.
& ]JI. 136, Fed. Cas. 14,115; Jelison v. Lee, 3 Wood. & M. 377, Fed. Cas.
7256, holding it is the value at agreed place of payment; York v. Wistarj^
30 Fed. Cas. 821, where contract was that purchaser should pay in Eng-
land, it was governed by laws of that country; Very v. McHenry, 29 Me.
212, holding one receiving money from person to discharge his debts is
bound to discharge them at same place; Sherrill v. Hopkins, 1 Cow. 108,
holding lex loci contractus governs unless it appears contract was to be
performed elsewhere; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 293,
holding bill of lading executed in Ohio and given to one there, to secure
him for drafts drawn on parties in this State, is an Ohio contract ; dissent-
ing opinion, Nelson v. Fotterall, 7 Leigh (Va.), 202, court divided as to
whether bill drawn and indorsed in Virginia and sold in New York, a
Virginia or New York bill ; Abell v. Insurance Co., 18 W. Va. 420, holding
when money is advanced, the implied contract is to replace same at place
of advancement ; dissenting opinion in Livingston v. Story, 11 Pet. 412,
9 L. Ed. 770, arguendo.
Distinguished in Ayer v. Tilden, 16 Gray, 184, 77 Am. Dec. 359, holding
where, by contract, no interest ^as payable, rate at place of judgment gov-
erns ; Merchants' Bank v. Griswold, 72 N. Y. 481, 28 Am. Bep. 166, holding
where drafts did not specify place of payment, law of place where they
were drawn and discounted governs.
Place where contract is deemed to have been made. Note, 99 Am. Dec.
672.
Conflict of laws as to interest and usury. Note, 62 L. B. A. 41.
Conflict of laws as to measure of damages. Note, 56 L. B. A. 307.
Letter specifying no place at wUcIl drafts are to be made payal>le wlU
not bind signer to acceptance of drafts made in anotlier State.
Cited in Michigan State Bank v. Leavenworth, 28 Vt. 219, holding fol-
lowing rule.
Agent with limited powers cannot bind principal when he exceeds those
powers.
Approved in Blyth v. Pinkerton, 10 Wyo. 156, 67 Pac. 625, holding where
detective employed by prosecution in murder case under written guaranty
by defendant, and after new trial was employed by attorney for prosecu-
tion to render further service, it .was error to reject evidence tending to
3 Wheat. 169-172 NOTES ON U. S. REPORTS. 792
show whether or not defendant guaranteed payment; The Joseph Grant,
1 Biss. 197, Fed. Cas. 7538, holding bill of lading signed in blank by master
is not good against owners, even in hands of bona fide holder.
Definition and effect of continntng guaranty.
Cited in Clagett v. Salmon, 5 Gill & J. 329, holding stipulation of amount
is to limit responsibility of sureties and not to prevent party giving debtor
further credit ; Stafford v. Low, 16 Johns. 69, where defendant's letter was
a conditional engagement to give a guaranty; Salmon v. Clagett, 3 Bland
Ch. 175, arguendo.
Guaranty must have been accepted.
Approved in Postlethwaite v. Minor, 168 Cal. 231, 142 Pac. 67, holding
action did not lie against guarantors on guaranty when contract provided
guarantors were to indorse note and bonds to be issued, this not having
been done; Tuckerman v. French, 7 Me. 117, holding that in continuing
guaranty notice of acceptance is necessary ;' Lonsdale v. Bank, 18 Ohio, 142,
holding where letter contains a direct promise to pay, it is an original
undertaking and law on suretyship not applicable ; Sollee v. Mengy, 1 Bail.
623, holding immediate notice of acceptance must be given to guarantor.
Creditor's granting delay to debtor does not discharge surety.
Cited in King v. Thompson, 3 Cr. C. C. 147, Fed. Cas. 7807, holding that
giving time after judgment does not discharge indorser.
Lack of notice of nonpayment discharges guarantor.
Cited in Doylass v. Reynolds, 7 Pet. 127, 8 L. Ed. 631, holding if notice
of nonpayment is not given to guarantor, he is discharged.
Distinguished in Mann v. Eckford, 15 Wend. 508, where engagement of
guarantor was absolute that debtor shall pay at a given day.
Ouaranty is construed with reference to usages of trade.
Approved in Smith v. Dann, 6 Hill, 545, following rule. '^
8 Wheat. 159-167, 4 It. Ed. 357, HUGHES ▼. UKION IN8. OO.
Unloading of cargo causing no delay is not deviation, and does not dis-
charge policy.
Cited in Jolly v. The Baltimore Equitable Society, 1 Har. & G. 306, 18
Am. Dec. 293, holding effect of alterations of house on risks, a question for
jury; Thorndike v. Bordman, 4 Pick. 484, 493, holding where policy granted
liberty to touch at a certain port, the ship may take in or discharge cargo
there without its being a deviation, provided no delay nor change of risk
insured against is occasioned.
What action at intermediate port constitutes a deviation. Note, 9
E. B. 0. 382.
3 Wheat. 168-172, 4 Ik Ed. 361, SWAN v. UNION INS. CO.
Barratry is fraud and deceit by master, committed on owners.
Cited in Joy v. Allen, 2 Wood. & M. 320, Fed. Cas. 7552, arguendo.
793 DUGAN v. UNITED STATES. 3 Wheat. 172-183
3 Wbeat. 172^183, 4 L. l^d. 362, DXJOAK n XTNITBD STATES.
One again coming into poasoBflion of "bill wMch be bas indorsed is prima
facie owner and proprietor thereof.
Approved in New Haven Mfg. Co. v. New Haven etc. Co., 76 Conn. 132,
55 Atl. 606, mere possession of holder of negotiable note by indorsee id
sufilicient evidence of ownership to support suit thereon by him; Bomar v.
Equitable Mtg. Co., Ill Ga. 144, 36 S. E. 60i, holding payee of note in
possession is presumed to own it although his indorsement thereon be un-
canceled; Talbot V. Hathaway, 113 Me. 326, 93 Atl. 836, holding surety's
possession of negotiable notes at time of death presumptive evidence she
had paid them ; Alderton v. Williams, 130 Mich. 631, 90 N. W. 664, hold-
ing wherein action by indorser of notes to recover of makers, it is admitted
that he indorsed notes before delivery to payee and that makers received
proceeds and did n6t pay notes, possession of notes at trial by indorser
is prima facie evidence that he paid them at maturity; Thomas M. Smith,
Use, etc., V. Howell W. Runnells, Walk. (Miss.) 146, holding after special
indorsement if note comes into possession of payee he must show transfer
from last indorsee ; Carter v. Butler, 264 Mo. 325, 174 S. W. 403, holding
in action on note under authority of payees, law presumed they were
liolders from fact of possession ; Dunlap v. Kelly, 105 Mo. App. 4, 78 S. W.
665, where plaintiff in action on note alleges she was original payee thereof,
but that it had been indorsed by her to third person and by latter back
to her, indorsements themselves are insufficient to prove allegations;
Pearce v. Btrickler, 9 N. M. 477, 54 Pac. 751, arguendo; Cassel v. Dows,
1 Blatchf. 339, Fed. Cas. 2502, holding subsequent indorsements for col-
lection may be stricken out; Conant v. Wills, 1 McLean, 428, Fed. Cas.
3087, holding payee may strike out indorsements and bring action in his
own name; Hunter v. Kibbe, 5 McLean, 280, Fed. Cas. 6907, holding ac-
ceptor coming into possession of bill entitled to recover on it; Picquet v.
Curtis, 1 Sumn. 480, Fed. Cas. 11,131, holding possession by original in-
dorser is prima facie evidence of ownership; Magruder v. McDonald, 3 Cr.
C. C. 307, Fed. Cas. 8965, holding that indorser can sue on the old con-
sideration; Pitts V. Keyser, 1 Stew. 155, holding plaintiff producing note
payable to him is presumed owner, though it is indorsed by him to another ;
dissenting opinion in Johnson v. English, 1 Stew. 170, majority holding
indorser cannot maintain action for use of indorsee, his indorsement ap-
pearing on the note ; Bryant v. Owen^ 2 Stew. & P. 138, holding defendant
has right to contest plaintiff's authority to sue on a note ; Carroll v. Meeks,
3 Port. 229, holding where note is declared on as having been transferred
by payee to plaintiff, and it shows an intermediate indorsement, it will
be presumed that note has been returned to payee and by him delivered
to bearer; Beal v. Snedicor, 7 Port. 528, holding plea that note has never
been assigned must be verified ; Earbee v. Wolfe, 9 Port. 367, holding payee
indorsing in full, and afterward gaining possession may maintain action
without extrinsic proof of ownership; Hemdon v. Taylor, 6 Ala. 461, ad-
mitting note in evidence though indorsed to one not connected with suit;
Hunt V. Stewart, 7 Ala. 527, holding where suit is brought in name of
3 Wheat. 172-183 NOTES ON U. S. REPORTS. 7M
payee for use of person to whom note has been indorsed, payee cannot
maintain the action; Pickett v. Stewart, 12 Ala. 204, holding where suit
is brought for use of another, indorsement of nominal plaintiff may bo
stricken out; Phillips v. Poindexter, 18 Ala. 585, holding possession of
bill indorsed for collection is prima facie evidence of restoration; Annis-
ton Pipe Works v. Mary Pratt Furnace Co., 94 Ala. 607, 10 South. 259,
holding possession of note subsequently indorsed is prima facie evidence
of ownership; Naglee v. Lyman,. 14 Cal. 454, holding action may be main-
tained by payee, though he has indorsed, if there be proof it was indorsed
for collection; Camp v. Smith, 5 Conn. 85, holding payment by indorscrs
docs not revest in maker title of property given as security ; Bond v. Storrs,
1^ Conn. 416, to the same effect as the principal case; Dann v. Nor^is,
24 Conn. 337, holding one indorsing for ^collection may maintain action
in his own name; Brinkley v. Ooing, Breese (111.), 367, holding, payee's
possession of note is prima facie evidence of ownership; Parks v. Brown,
16 111. 456, holding plaintiff may strike out blank indorsement; Hanna v.
Pegg, 1 Blackf. (Ind.) 185, holding possession of special assignor is prima
facie evidence of ownership without showing reassignment; Thompson v.
Coquillard, 3 Blackf. (Ind.) 437, holding suit could be maintained in name
of assignor for use of assignee; Harris v. Smith, 4 Blackf. (Ind.) 550,
holding like main case; Dodd v. Noble, 5 Blackf. (Ind.) 30, holding lessor
could maintain action without assignment being canceled ; Lemon v. Temple,
7 Ind. 558, holding payee's possession is prima facie evidence of ownership,
though there be a special indorsement to. a third party; Pilkington v.
Woods, 10 Ind. 434, holding it will be presumed, that bill not paid by
acceptor is owned by plaintiff, and he may strike out subsequent indorse-
ments; McCormick v. Eckland, 11 Ind. 294, declaring that an assignment
without delivery is presumed never to have been completed; Mendcnhali
V. Banks, 16 Ind. 286, holding payee may strike out subsequent special
indorsement to third party; Sater v. Hendershott, Morris, 122, holding
that because suit is instituted in name of payee for use of indorser is no
evidence that payee is entitled to bring it; Bank of Kansas City v. Mills,
24 Kan. 610, holding settlement with indorser in possession of note dis-
charges drawer; Bell v. Morehead, 3 A. K. Marsh. 162, holding assignor
of note negotiated in bank acquiring possession is prima facie owner;
Miller v. Henshaw & Co., 4 Dana (Ky.), 326, holding drawer taking up
accepted bill may sue in his own name; Bank of Tennessee v. Smith, 9 B.
Mon. 612, holder of bill may erase or fill up if it is indorsed in blank;
Hill V. Holmes, 12 La.. 98, and Hebrard v. Bollenhagen, 9 Rob. (La.) 156,
holding payee may recover on note without showing retransfer; Huie v.
Bailey, 16 La. 217, 35 Am. Dec. 216, holding that holder of promissory
note can erase subsequent special indorsement and recover against maker
and anterior indorsers; Squier v. Stockton, 5 La. Ann. 121, 52 Am. Dec.
584, holding payee in possession may maintain action on note without ac-
counting for reacquisition ; Wood v. Tyson, 13 La. Ann. 105, holding
special indorser may maintain suit in his own name if indorsee be his
agent; Saco Man. Co. v. Whitney, 7 Me. 260, presuming note in possession
has been lawfully reconveyed; Cooper v. Cooper, 14 La. Ann. 676, holding
795 DUGAN v. UNITED STATES. 3 Wheat. 172-183
plaintiff being payee may strike out hijs special indorsement; Green v.
Jackson, 15 Me. 139, holding possession by indorser is prima facie evidence
of ownership; Eaton v. McKown, 34 Me. 613, if owner of paper negotiated
in blank deposits it for collection and it is sold, he, may pay transferee
and sue parties previously liable ; Bowie v. Duvall, 1 Gill & J. 179, holding
indorser acquiring possession may strike oat indorsement and sue in his
own name; as also in Canton Nat. etc. Bk. v. Weber, 34 Md. 671, to the
same effect ; McGee v. Prouty, 9 Met. 551, 48 Am. Dec. 410, holding posses-
sion of note by party liable is prima facie evidence of payment; Reading
V. Beardsley, 41 Mich. 125, 1 N. W. 966, holding owner may strike out in-
dorsements for collection ; Kells v. Insurance Co., 64 Minn. 393, 58 Am. 8t.
Bep. 544, 67 N. W. 216, holding possession of note by payee is prima facie
evidence of ownership, though specially indorsed to a third party ; Glasgow
V. Switzer, 12 Mo. 398, holding indorser in possession may strike out sub-
s^equent indorsements; Page v. Lathrop, 20 Mo. 592, where there was an
indorsement in full; Todman v. Purdy, 5 Nev. 241, holding payee in pos-
session of note with subsequent indorsement presumed the owner; With-
erell v. Ela, 42 N. H. 296, holding indorser in possession may strike out
subsequent indorsements and sue in his own name; dissenting opinion in
Kendall v. Brownson, 47 N. H. 200, holding that possession by plaintiff is
evidence of ownership; Middleton v. Griffith, 57 N. J. L. 446, 51 Am. St.
Rep. 620, 31 Atl. 406, holding indorser in possession is prima facie owner;
Norris v. Badger, 6 Cow. 455, holding possession of note is prima facie
evidence of payment; Dolfus v. Frosch, 1 Denio, 373, allowing plaintiff
to recover without showing indorsements were for collection; Bank of
Utica V. Smith, IS Johns. 239, holding where note given to agent for col-
lection is returned to owner, latter may strike out special indorsement and
sue in his own name; Chautauque County Bank v. Davis, 21 Wend. 586,
to same effect; Spreckels v. Bender, 30 Or. 581, 582, 48 Pac. 419, 420,
holding possession by indorser is prima facie evidence of ownership; Law-
ranee v. Fussell, 77 Pa. St. 463, holder cannot sue on note specially in-
dorsed ; Bank of America v. Senior, 11 R. I., 377, holding plaintiff, in action
against indorser, need not allege subsequent indorsements, if he does not
sue on title derived through tl^em; Union Bank v. Carr, 2 Humph. 346,
holding indo'rser could strike out subsequent indorsement; Hays v. Cage,
2 Tex. 511, holding possession by payee evidence of ownership, though
indorsed by him in blank; Johnson v. Mitchell, 50 Tex. 215, 32 Am. Rep.
604, holding possession of note payable to bearer and indorsed in full by
payee is evidence of title ; Texas L. & C. Co. y. Carroll, 63 Tex. 53, holding
payee in possession may strike out his indorsement ; Pearce v. Strickler, 54
Pac. 751, rejecting an ex parte statement of a payee concerning the execu-
tion of a note after its indorsement by him; Grant v. Ennis, 5 Tex. Civ.
App. 44, 23 S. W. 998, holding possession by payee, of note indorsed by
her in blank is prima facie evidence of title; Sawyer v. '^Vhite, 19 Vt.-43,
holding judgment against one joint signer does not affect liability of other ;
Hungerford v. Perkins, 8 Wis. 268, possession of indorsee is evidence of
title, though his name is on back of note.
3 Wheat. 172-183 NOTES ON U. S. REPORTS. 796
Denied in Robson v. Earley, 1. Mart. (La.) (N. S.) 374, holding posses-
sion is not evidence of property in a note, the interest of which api>ears in
another.
Distinguished in Lake v. Hasting, 24 Miss. 496, where plaintiff did not
have legal title; Davis v. Christy, 8 Mo. 571, declaring that owner cannot
strike out indorsements in full.
Indorser, when entitled to recover. Note, 1 Am. Dec. 275.
Indorsement in blank confers rigbt of action on transferee.
Cited in Worthington v. Curd, 15 Ark. 509, collecting authorities and
holding same under statute.
United States may sue on bill indorsed to treasurer of United States.
Approved in Southerly Life Ins. Co. v. Gray, 3 Fla. 266, holding corpo-
ration may sue on note made payable to its agent ; Nisbet v. Lawson, 1 Ga.
284, holding agent may maintain action in his own name on note of his
company indorsed in blank or payable to bearer; Haas v. Ruston, 14 Ind.
App. 20, 56 Am. St. Bep. 293, 42 N. E. 302, holding broker cannot contract
in his own name ; Soule v. United States, 100 U. S. 12, 25 L. Ed. 538, hold-
ing bond given by internal revenue commissioner that of the secretary of
the treasury. See also note in 12 Am. Dec. 716, and 42 Am. Dec. 378, that
State or United States can sue on note made to public ofi&cer, collecting
authorities.
Suit by principal on note to agent. Note, 12 Am. Dec. 716.
United States may enter into contracts and sue thereon.
Approved in United States v. Tingey, 5 Pet. 128, 8 L. Ed. 71, holding
bond given voluntarily to the United States is a valid contract; United
States V. Bradley, 10 Pet. 360, 9 L. Ed, 455, holding bond given by official
is good, so far as in conformity to the act, and for any excess is pro tanto
void ; Cotton v. United States, 11 How. 231, 13 L. Ed. 676, holding United
States has a right to bring trespass against one cutting trees on public
lands; Neilson v. Lagow, 12 How. 107, 13 L. Ed. 913, holding that giving
land to trustee to secure debt of United States is not such a purchase as is
prohibited by statute; United States v. Hodson, 10 Wall. 407, 19 L. Ed.
940, holding voluntary bond, not in specific way of statute, valid; United
States V. Garlinghouse, 4 Ben. 205, Fed. Cas. 15,189, holding United States \
has capacity to take bond not authorized by act of Congress; Eight, etc.
Bales, Blatchf. Pr. 326, Fed. Cas. 4318, holding property of government
is chargeable with same liabilities as that of an individual; United States
V. Boice, 2 McLean, 353, Fed. Cas. 14,619, holding United States may sue
in its own name on note given to agent; United States v. Ames, 1 Wood.
& M. 81, Fed. Cas. 14,441, holding United States owning land with State
is on a par with other owners, unless* Constitution or treaties otherwise
provide ; United States v. Pittsburgh & L. E. B. Co., 26 Fed. 114, holding
United States may bring action to abate an unlawful structure; United
States V. Tygh. Valley etc. Co., 76 Fed. 694, holding United States has
same right as an individual to protect its property; State v. New London,
797 OLIVERA v. UNION INS. CO. 3 Wheat. 18^-199
22 Conn. 170, holding State may sue in its own name; dissenting opinion
in Bay County v. Brock, 44 Mich. 53, 6 N. W. 105, holding that where
statute required bond to be given to people, State instead of county should
sue; Yansickle v. Haines, 7 Nev. 263, illustrating extent of ownership of
United States in public lands ; Reeside v. Knox, 2 Whart. 238, 30 Am. Dec.
238, holding where United States is drawee a bill is non-negotiable; Dikes
V. Miller, 25 Tex. Supp. 290, 78 Am. Dec. 672, holding United States may
enter into contracts; Territory v. Golding, 3 Utah, 48, 5 Pac. 650, holding
territory could sue on mortgage given to secure defalcation of officer;
Jones V. United States, 48 Wis. 409, 4 N. W. 524, holding United States
may sue in local courts, and is suable with its own consent; United States
V. Hohnes, 105 Fed. 43, aiguendo.
Distinguished in United States v. Jones, 77 Fed. 723, holding recovery
cannot be had on a bond, that "he has faithfully performed and shall,"
etc., for defalcations previous to its execution; State v. Shirley, 1 Ired.
603, where taking of bond was unauthorized by law.
Bight of United States to maintain civil action. Note, Ann. Oaa*
1912D, 515, 516. *
Who may sue on note payable to a cashier. Note, 42 Aip. Dec. 378.
Miscellaneous. Cited in Ashley v. Hyde, 6 Ark. 99, to point that plain-
tiff bringing joint action must recover against all or none; also in Under-
bill V. Gibson, 2 N. H. 356, 357, 9 Am. Dec. 86, 87,
3 Wheat. 183-199, 4 L. Ed. 365, OLIVEBA v. UNION INS. OO.
Restraint by blockade after commencement of Yoyage is peril within policy
for which Insurers are liable.
Approved in The Athanasios, 228 Fed. 560, holding Qreek vessel char-
tered in United States port with exemption for loss from "arrest and
restraint of rulers" is released, from charter obligations when before going
to loading dock she was requisitioned by Greek government ; The Styria, 101
Fed. 731, holding under bill of lading declaration of war before sailing
justified master from refusing to proceed to one belligerent port; Vigers
V. Insurance Co., 12 La. 367, 32 Am. Dec. 119, holding that if vessel is
prevented by blockade from entering port of destination, insurers are
liable; Saltus v. Insurance Co., 15 Johns. 529, where vessel in prosecution
of voyage puts into port afterward blockaded, this is within risk insured
against; Thompson v. Read, 12 Serg. & R. 443, where neutral ship was
prevented from entering port of destination by blockade, insurers would
have been liable if policy had not been against "unlawful" restraints, etc.
Distinguished in Andrews v. Marine Ins. Co., 3 Mason, 21, Fed. Cas.
374, holding blockade of port of destination not such a peril within the
language of the policy sued upon.
Frustration of voyage because of existence of war as constructive
total loss within marine insurance policy. Note, Ann. Oas. 1916D.
885, 886.
Liability of marine insurer for losses arising out of war. Note, 5
B. B. 0. 29, 30.
3 Wheat. 200-204 NOTES ON U. S. REPORTS. 798
Neutral vessel may come out with cargo aboard before abe received notioe
of blockade.
Approved in United States v. The Tropic Wind, 6 D. C. 360, Appx.,
holding blockade violated by ^ress of neutral with cargo loaded after
notice of blockade; The Hiawatha, Blatchf. Pr. 19, Fed. Cas. 6451, on
notice of blockade a neutral vessel has a right to withdraw frohi blockaded
port with cargo laden before the blockade; United States v. Tropic Wind,
28 Fed. Cas. 222, arguendo.
Criterion of time in cases of abandonment and total loss under marine
policy. Note, 1 £. B. 0. 130.
Termination of marine insurance by termination of voyage. Note,
13 E. B. 0. 670, 672.
Miscellaneous. Cited in United States v. Elliott; 64 Fed. 31, as to what
constitutes restraint of commerce.
S Wheat. 200-204, 4 I*. Ed. 369, SHEPHEBD V. HAMPTON.
In action by vendee for nondelivery, measure of damages to price of artido
at time of breach and not afterward.
Approved in Berbariy v. Tombacher, 162 N. C. 499, 77 S. E. 413, holding
damages for seller's failure to deliver goods was difference between market
value and agreed price at time and place of delivery; Tayloe v. Turner, 2
Cr. C. C. 203, Fed. Cas. 13,770, holding damages to be price of stock on
day it should have been delivered; Missouri Furnace Co. v. Cochran, 8
Fed. 464, holding amount to be difference between stipulated price, and
market price at place and time of delivery; Pinkston v. Huie, 9 Ala. 260,
allowing value of land at time it was to be conveyed, with interest to
time of trial; Willis v. Dudley, 10 Ala. 942, holding vendee is entitled to
value of article if warranty had been true; Davis v. Adams, 18 Ala. 268,
holding measure is difference between stipulated price and market value
at time of breach; Rowland v. Shelton, 25 Ala. 219, holding damages for
breach of warranty of title is value at time of purchase, with interest and
costs of suit; Logan v. Moulder, 1 Ark. 323, 33 Am. Dec. 345, vendor,
upon breach of covenant, is liable for purchase money with interest;
Leach v. Smith, 25 Ark. 253, holding, if contract is not for payment of
legal tender, damages is value of article at time it is due; Wells v. Aber-
nethy, 5 Conn. 227, allowing value of article at time it is due; Diggers v.
Pace, 5 Ga. 176, measure being difference between stipulated price and
market value at time and place of delivery; Smith v. Dunlap, 12 111. 192,
holding measure of damages is value of article at time it should have
been delivered ; Thompson v. Howes, 14 La. Ann. 46, allowing market price
at time of breach; Furlong v. PoUeys, 30 Me. 493, 50 Am. Dec. 636, allow-
ing difference between contract and market price; dissenting opinion in
Heywood v. Heywood, 42 Me. 236, majority holding where one agreed to
deliver articles in payment of rent, payment of the price in coin was all
that could be recovered; Williamson v. Dillon, 1 Har. & G. 464, awarding
difference in price at time and place of delivery, of flour delivered and
799 PATTON v. NICHOLSON. 3 Wheat. 204-212
•
eontracted for; Pinckney v. Dambmann, 72 Md. 184, 19 Atl. 462, allowing
difference in stipulated price, and its market price at time and place of
delivery; Shaw v. Nudd, 8 Pick. 14, holding damages should be value of
goods at time and place of delivery; Friedlander v. Pugh^ 43 Miss. 118,
5 Am. Eep. 482, refusing tp take into account an advantageous resale lost
by vendee; Northrup v. Cook, 39 Mo. 211, holding damages is difference
between contract price and market value at time it should have been
delivered; dissenting opinion in Masterton v. Mayor etc. of Brooklyn, 7
Hill, 74, 42 Am. Dec. 46, majority holding in computing damages iluctua:
tions of market, subsequent to breach, should not be considered; Coffman
v. Williams, 4 Heisk. 240, holding difference between contract price and
value at time and place of delivery was the measure of damages; Ferris v.
Barlow, 2 Aikens, 107, as to rule of damages for breach of contract gener-
ally; rule approved in Clark v. Pinney, 7 Cow. 687, following rule.
Where purcliaser had advanced money under contract, rule that damages
for breach is market price at time of delivery, does not apply.
Cited in Pinkerton v. Railroad Co., 42 N. H. 459, holding that in such
a case measure of damages is value of stock at time of demand, with inter-
est; Clark V. Pinney, 7 Cow. 691, holding in such a case that vendee,
bringing suit within reasonable time, can recover highest market price
between time for delivery and beginning of suit; as also in Cannon v.
Folsom', 2 Iowa, 111, 63 Am. Dec. 476; Randon v. Barton, 4 Tex. 295, and
Calvit V. McFadden, 13 Tex. 325, all holding if purchase. price has been
advanced, purchaser is entitled to highest market price up to time of trial;
West V. Pritchard, 19 Conn. 215, 217, holding where purchase price has
be^n advanced, vendee may recover value of goods at time of trial ; Rensens
V. Mexican etc., 23 Blatchf. 23, 22 Fed. 525, arguendo.
Denied in Rose v. Bozeman, 41 Ala. 684, holding measure of damages is
value at time of breach, notwithstanding purchase price had been ad-
vanced; as also in Smethurst v. Woolston, 5 Watts & S. 109. <
3 Wheat. 204-212, 4 If. Ed. 371, PATTON Y. NICHOLSON.
Contract for sale of license from public enemy, for use on American vessel,
is illegal.
Approved in Sawyer v. Sanderson, 113 Mo. App. 245, 88 S. W. 154,
inclusion of seller's license in sale of saloon renders note given therefor
void under Rev. Stats. 1899, § 2992 ; Monahan v. Monahan, 77 Vt. 143,
70 L. E. A. 935, 59 Atl. 172, where complainant seeking to impress secu-
rities with trust, and issues omit fraud, he cannot be denied relief because
of fraudulent purpose to avoid taxation by placing securities in defend-
ant's name; Craig v. Missouri, 4 Pet. 437, 7 L. Ed. 912, holding void
promissory note given for "bills of credit" issued by State; McGehee v.
Lindsay, 6 Ala. 21, holding void, as against public policy, an agreement
by which commissioner was to participate in public contract; Latham v.
Clark, 25 Ark. 582, holding void contract for payment of Confederate
money (but see dissenting opinion of same case, p. 601) ; Howell v.
Fountain, 3 Ga. 184, 46 Am. Dec. 422, holding no action can be maintained
3 Wheat. 212-230 NOTES ON U. S. REPORTS. 800
on contract growing out of illegal contract; dissenting opinion, Miller v.
Gould, 38 Ga. 486, majority holding "Confederate money" is not as be-
tween the parties within rebel lines- an illegal consideration ; Bank of
Michigan v. Niles, 1 Doug. (Mich.) 412, 41 Am. Dec. 583, refusing to
enforce contract to purchase land, which, by its charter, bank could not
hold; Robinson v. Patterson, 71 Mich. 149, 39 N. W. 24, contracts calcu-
lated to influence action of public officers are void.
Distinguished in Kershaw v. Kelsey, 100 Mass. 572, 97 Am. Dec. 134,
enforcing lease of plantation in rebel State, made during the war between
citizens of that State and of Massachusetts'; Gilliam v. Brown, 43 Miss.
660, holding a new contract, founded on a new consideration, although in
relation to property respecting which there had been an unlawful transac-
tion, is not illegal.
Validity of contracts with public enemies. Note, 96 Am. Dec. 626.
3 Wheat. 212-230, 4 L. Ed. 372, BOBINSON v. CAMPBEIiL.
Remedies in respect to real property are according to lex loci rei sitae.
Approved in Kuhn v. Fairmont Coal Co., 215 U. S. 364, 54 L. Ed. 236,
30 Sup. Ct. 140, holding where law not settled by State, Federal court
would exercise its judgment; Kuhn v. Fairmont Coal Co., 66 "Wl Va. 721,
179 Fed, 197, 102 C. C. A. 457, and Kuhn v. Fairmont Coal Co., 179 Fed.
197, 102 C. C. A. 457, both following construction placed on similar deed
by State court; United States v. Ames, 1 Wood. & M. 80, Fed. Cas. 14,441,
where United States was owner; Pollard v. Kibbe, 14 Pet. 410, 414, 415,
10 L. Ed. 518, 520, leaving remedies upon such rights to lex fori; Houghton
V. Page, 2 N. H. 46, arguendo.
Intention of legislature considered in construing statute.
Cited in Pollard v. Kibbe, 14 Pet. 413, 10 L. Ed. 519, construing treaty
with Spain; Crane y. Reeder, 28 Mich. 535, 15 Am. Eep. 229, construing
statute.
Failing in its primary object, suit for ejectment may be continued for ante-
cedent damages.
Cited in Hairston v. Dobbs, 80 Ala. 592, 2 South. 149, holding one suing
as owner of estate per auter vie, terminating before trial, can recover
mesne profits; Beach v. Beach, 20 Vt. 89, holding plaintiff may recover
damages for the ouster, although at time of trial his term may have ex-
pired; Michigan Central R. R. Co. v. McNaughton, 45 Mich. 89, 7 N. W.
713, and Black v. Jackson, 177 U. S. 363, 44 L. Ed. 807, 20 Sup. Ct. 653,
both arguendo.
When Federal Jurisdiction has attached, rights given by State law will be
as fuUy enforced in Federal tribunal as in State court.
Cited in Ex parte McNiel, 13 Wall. 243, 20 L. Ed. 627, involving con-
struction of State pilotage laws.
In deciding on the obligation of an instrument, lex loci contractus govems.
Distinguished in Le Roy v. Beard, 8 How. 465, 12 L. Ed. 1158, holding
form of action on conveyance having the force in State where made of
4
I
801 ROBINSON v; CAMPBELL. 3 Wheat. 212-230
seated instrameht/ but in the State of the forum of an unsealed one, is
assampsit.
Bemedies are admlnlBtered in Federal courts, according to common law and
peculiar ssrstema of various States.
Approved in Richardson v. Pennsylvania Coal Co., 203 Fed. 747, holding
plaintiff had remedy at law which would defeat equity jurisdiction of
Federal court; Newberry v. Wilkinson, 199 Fed. 678, 118 C. C. A. Ill,
holding Federal equity jurisdiction ^xtehded administration of decedent's
estates, but was governed by rules and statutes of States; Empire Circuit
Co. v. Sullivan, 169 Fed. 1010, holding principles of equity and not State
statutes determined whether complainant had remedy at law which woufd
deprive Federal court of jurisdiction; Virginity T. & C. etc. Iron Co. v.
Harris, 151 Fed. 431, 80 C. C. A. 658, holding State statute relating to
vacation of judgmei^ts did not supply remedy at law which defeated Fed-
eral equity jurisdiction ; Carlson v. Sullivan, 146 Fed. 479, seventh amend-
ment guarantees jury trial in judicial proceedings in territories j In re E. T.
Kenney Co., 136 Fed. 454, where creditors of bankrupt before bankruptcy
assigned claims to committee in trust to purchase bankrupt's property and
sell same for benefit of assignors, latter could not prove equitable interest
as against claims against bankrupt estate, though State statutes abolished
distinction between legal and .equitable proceedings; Union Life Ins. Co.
V. Riggs, 123 Fed. 319, holding Rev. Stats. Mo. 1899, § 7890, does not
affect Federal jurisdiction of suit to cancel life insurance policy for fraud ;
Hill V. Northern Pac. Ry. Co., Ii3 Fed. 917, holding Rev. Stats. § 914, does
not abolish distinction between law and equity; Mulqueen v. SchlichteV
Jute Cordage Co., 108 Fed. 932, holding Federal court cannot entertain
purely equitable defense in ejectment; Hill v. Northern Pac. Ry. Co., 104
Fed. 755, holding equitable issues cannot be litigated in action at law in
Federal court though State statute permits it ; Pokegama Sugar Pine L. Co.
V. Klamath River L. & Imp. Co., 96 Fed. 56, holding statutory action
of forcible entry and detainer do^s not oust Federal equity court of juris-
diction; Jones V. Mutual Fidelity Co*, 123 Fed. 518, and First Nat. Bank
V. Ewing, 103 Fed. 194, arguendo; Ex parte Crane, 5 Pet. 210, 8 L. Ed.
100, holding Supreme Court can by mandamus command circuit judge to
sign bill of exceptions ; Boyle v. Zacharie, 6 Pet. 658, 8 L. Ed. 536, holding
that supersedeas, in order to stay proceedings, must come before levy;
Livingston v. Story, 9 Pet. 655, 657, 9 L. Ed. 263, 264, holding Louisiana
District Court must administer equitable remedies of the English and
Federal courts; Russell v. Southard, 12 How. 148, 13 L. Ed. 931, refusing
to be bound by State practice in equity suit; so also in Neves v. Scott, 13
How. 272, 14 L. Ed. 142, to the same effect; Pennsylvania v. Wheeling etc.
Bridge Co., 13 How. 563, 14 L. Ed. 268, holding jurisdiction of Federal
courts not limited by chancery system of State; Irvin| v. Marshall, 20
How. 565, 15 L. Ed. 998, enforcing trust, though in territory where land
was situated) statute prohibited resulting trust; Jones v. McMasters, 20
How. 22, 16 L. Ed. 811, and Fenn v. Holme, 21 How. 484, 16 L. Ed. 199,
maintaining distinction between remedies at law and in equity, notwith-
1—51
3 Wheat. 212-230 NOTES ON U. S. REPORTS. 802
standing State statutes al>blishing them; dissenting opinion in Barber v.
Barber, 21 How. 604, 16 L. Ed. 2S3, majority holding Federal court may
enforce decree of State court for alimony; Noonan v. Lee, 2 Black, 509,
17 L. Ed. 281, holding there can be no decree for payment of any balance
of mortgage debt, after the sum realized from the sale; Thompson v. Rail-
road Co., 6 Wall. 137, 18 L. Ed. 767, holding distinction between l^al and
equitable remedies is preserved in Federal courts in spite of State statutes ;
Payne v. Hook, 7 Wall. 430, 19 L. Ed. 262, holding Circuit court has juris-
diction of an equity proceeding against an administrator, that could not
be maintained in State court; Van Norden v. Morton, 99 U. S. 381, 25
L. Ed. 455, holding, whether the remedy is equitable depends on the essen-
tial character of the case; Karby v. Lake Shore etc. R. R. Co., 120 U. S.
138, 30 L. Ed. 673, 7 Sup. Ct. 434, holding State statute does not affect
power of Federal court in equity matters; In re Barry, 136 U. S. 608, S4
L. Ed. 607, holding that Federal courts derive no jurisdiction from the
common law ; Scott v. Neely, 140 U. S. Ill, 35 L. Ed. 361, 11 Sup. Ct. 714,
holding Circuit Court could not take jurisdiction of bill, though given by
-^ State statute, if defendant is entitled to trial by jury; Sheffield Furnace
Co. v. Witherow, 149 U. S. 679, 87 L. Ed. 856,' 13 Sup. Ct. 939, holding
Federal courts may in equity enforce mechanic's lien, given by State law;
Shuford v. Cain, 1 Abb. (U. S.) 305, Fed. Cas. 12,823, declaring that in
Federal courts, equity and law are distinct; Baker v. Biddle, Bald. 411*
Fed. Cas. 764, holding changes introduced in chancery practice since the
Revolution are not followed ; Bains v. Schooner James etc.. Bald. 558, Fed.
Cas. 756, holding like main case as to admiralty jurisdiction; Allen v.
Blunt, 1 Blatchf. 486, Fed. Cas. 215, allowing reference to take account
of profits, on injunction bill to restrain infringement 'of patent ; City Bank
of New York v. Skelton, 2 Blatchf. 27, Fed. Cas. 2740, holding jurisdiction
having attached court will proceed according to its practice; Montejo v.
Owen, 14 Blatchf. 325, Fed. Cas. 9722, holding one cannot set up equitable
defenses to common-law action; Cropper v. Cobum, 2 Curt. 472, Fed. Cas.
3416, holding Federal court had equitable jurisdiction, though State law
provides for relief, which before only equity could give; Lamb v. Starr,
Deady, 363, Fed. Cas. 8021, holding State statute cannot affect equity
jurisdiction of Federal courts ; Weed Sewing Machine Co. v. Wicks, 3 Dill.
265, Fed. Cas. 17,348, holding Federal courts in law actions governed by
State practice; Bean v. Smith, 2 Mason, 270, Fed. Cas. 1174, holding bill
in equity lay to set aside a fraudulent conveyance, although by State law
the property could not be taken by execution; Pratt v. Northam, 5 Mason,
105, Fed. Cas. 11,376, holding Federal court possesses jurisdiction in equity,
notwithstanding local remedy at law; as also in Johnston v. Roe, 1 Mc-
Crary, 165, 1 Fed. 695, where claim was barred by State statute of limita-
tions ; Nickcrson v. Railroad Co., 1 McCrary, 384, 30 Fed. 86, State statute
does not affect Federal court of equity; as^ also in Strettell v. Ballou,
3 McCrary, 47, 9 Fed. 257, and Tice v. I^chool District, 5 McCrary, 362,
17 Fed. 285, to the same effect ; United States v. Parrott, Mc All. 288, Fed.
Cas. 15,998, holding Circuit Court can afford same relief as English Court
of Chancery; Loring v. Downer, McAU. 362, Fed. Cas. 8513, maintaining
distinction between law and equity; Byrd v. Badger, McAll. 444, Fed. Cas.
803 ROBINSON v. CAMPBELL. 3 Wheat. 212-230
2266, refusing to use statutory remedy, when by so doing distinction be-
tween law and equity would be disregarded; Fletcher v. Morey, 2 Story,
567, Fed. Cas. 4864, and Mayer v. Foulkrod, 4 Wash. 356, Fed. Cas. 9341,
holding State laws cannot affect equitable jurisdiction of Federal courts;
Orendorf v. Budlong, 12 Fed. 26, holding equity jurisdiction of Federal
court is unaffected by State laws; Snyder ▼. Pharo, 25 Fed. 399, holding
equitable defense cannot be set up in action at law; Mann v. Appel, 31
Fed. 380, to same effect as in main case; Rich v. Bray, 37 Fed. 275, hold-
ing Federal courts will take cognizance, in spite of remedy under probate
law; In re Barry, 42 Fed. 121, Fed. Cas. 1059, holding that Federal ^courts
have no common-law jurisdiction; Thomas v. American Freehold etc. Co.,
47 Fed. 554, holding Federal court has no power to have a judgment ob-
tained on a note and declare it a prior lien on land, as provided by State
statute; White v. Bower, 48 Fed. 188, equity procedure in Federal courts
is unaffected by State laws ; Richmond v. Atwood, 52 Fed. 25, 5 U. S. App.
151, construing statute, providing for appeals from decree of chancery;
Pittsburgh etc. v. Keokuk & H. B. Co., 68 Fed. 21, 46 U. S. App. 530,
holding Federal equity jurisdiction is unaffected by State laws; American
Assn. V. Eastern Kentucky Land Co., 68 Fed. 722, holding Federal court
of equity cannot entertain partition suit, although State law permits
courts of equity to do so; The City of Toledo, 73 Fed. 224, holding State
statute will not affect admiralty jurisdiction of United States court J dis-
senting opinion in Missouri. K. & T. Co. v. Ejrumseig, 77 Fed. 43, 40 U. S.
App. 620, majority holding State statute abrogating equity rule that
borrower seeking relief from usurious contract must tender loan, plus legal
interest, is binding on Federal courts; Berkey v. Cornell, 90 Fed. 717,
holding, therefore, legal and equitable claims could not be combined in one
suit; Lamson v. Mix, 14 Fed. Cas. 1056, holding Federal equity procedure
does not conform to State ^practice; Hempstead v. Watkins, 6 Ark 357,
42 Am. Dec. 702, holding legislature cannot abridge equitable jurisdiction
of Circuit Courts; Gatton v. Railroad Co., 95 Iowa, 127, 63 N. W. 594,
holding Constitution does not confer full common-law jurisdiction on
Federal courts; Dupuy v. Bemiss, 2 La. Ann. 512, holding equity juris-
diction of national courts not limited by local remedies; Bell v. Railroad
Co., 34 La. Ann. 794, holding like main case; Taylor v. Taylor, 74 Me. 588,
to same effect as main case ;^ Brown v. Kalamazoo Circuit Judge, 75 Mich.
278, 18 Am. St. Rep. 440, 42 N. W. 828, holding unconstitutional, law
providing for final decision of facts in chancery by jury; MoPike v. Wells,
54 Miss. 145, holding equity jurisdiction of Federal courts is coextensive
with that of English High Court of Chancery; Sellers v. Corwin, 5 Ohio,
403, 24 Am. Dec. 305, holding where Federal court adopted execution laws
of State, its judgments became liens on land; Enright v. Grant, 5 Utah,
340, 15 Pac. 270, holding statutory "supplementary proceedings" not ex-
clusive of equitable remedy of creditor's bill ; Suttle v. Railroa^ Co., 76 Va.
288, where distinction between law and equity is maintained; Wright v.
Moore, 21 Wend. 233, Strother v. Lucas, 6 Pet. 769, 8 L. Ed. 576, dissenting
opinion in Waring v. Clarke, 5 How. 475, 12 L. £d. 242, Mann v. Appel,
31 Fed. 380, Clark v. Reyburn, 8 Wall. 323, 19 L. Ed. 356, Clark v. Sohier,
3 Wheat. 231-236 NOTES ON U. S. REPORTS. 804
1 Wood. & M. 373, Fed. Gas. 2835, and in Sanford v. Portsmouth, 2 Plipp.
108, Fed. Gas. 12,315, to point that local State laws do not govern pro-
cedure and practice of Federal courts.
Distinguished in Pierpont v. Fowle, 2 Wood. & M. 32, Fed. Gas. 11,152,
holding court will not give equitable relief when remedy at law is ample.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removal to, Federal courts.
Note, 40 L. B. A. (N. 8.) 419, 448.
Mortgagor Is deemed the owner, against everyone but mortgagee.
Gitid in Fiedler v. Gfrpenter, 2 Wood. & M. 215, Fed. Gas. 4759, ai^-
endo.
Where defendant sets up title in stranger, it must be a present sahsisting
title.
Gited in Thorn v. Reed, 1 Ark. 492, holding in action of forcible detainer
defendant may traverse plaintiff's right of possession; Hilton v. Burley,
2 N. H. 195, holding title of landlord at time of entry cannot be contested,
unless tenant has been ousted by a f^aramount title; Jackson v. Lyon, 9
Gow. 67^, reaflfirming rule ; Hallet v. Eslava, 3 Stew. & P. 121, arguendo.
Distinguished in Jackson v. Lyon, 9 Gow. 670, and Wing v. De La Rionda,
131 N. Y. 429, 30 N. E. 244, where defendant did not connect himself with
the ^tstanding title.
Where demanduit had first possession, he may rfscover upon that alone.
Gited in Atherton v. Johnson, 2 N. H. 35, deciding that nature of pos-
session is a question of fact.
Miscellaneous. Gited in Rhode Island v. Massachusetts, 12 Pet. 727,
745, 9 L. Ed. 1262, 1268, as instance of boundary dispute between two
States; Hathaway v. Phelps, 2 Aikens, 88, but not in point; as also in
Bryan v. Forsyth, 19 How. 336, 16 L. Ed. 675*; Innerarity v. Mims, 1 Ala.
674.
S Wheat. 231-232, 4 L. Ed. 377, DXTNLOP V. HEFBUBN.
Not cited.
3 Wheat. 232-234, 4 I«. Ed. 377, UNITED STATES ▼. ONE H0NDBED AlTD
FIFTY CRATES.
Libel for goods for false invoicing.
Cited in Our House No. 2 v. State, 4 G. Greene, 175, as an instance of
proceedings in rem, and holding law sanctioning such proceedings constitu-
tional.
3 Wheat. 234-236, 4 I«. Ed. 378, HAMPTON ▼. McCONNEI^
Judgmei^t of State court has same credit and validity in every court wltliiii
United States, as in State where rendered.
Approved in Damon v. Webber, 111 Me. 477, 478, 89 Atl. 736, following
rule ; Fauntleroy v. Lum, 210 U. S. 236, 52 L. Ed. 1042, 28 Sup. Ct. 641,
holding judgment of court of State where cause did not arise, based on
805 ^ HAMPTON ▼. McCOKNBL. 3 Wheat. 234-236
arbitration award had in State where cause arose, was binding though
award could not have been made under laws of that State; Cline v. South-
em Ry. Co., 231 Fed. 241, holding judgment barring action in State court
was res adjudicata in Federal court ; Carpenter v. Beal-McDonnell & Co.,
222 Fed. 469, holdings New York judgment on gambling contract valid in
Pemisylvania as against collateral attack; Glencove Granite Co. v. City
Trust etc. Co., 118 Fed. 388, holding under New York statute judgment of
dismissal in State court does not bar action in Federal court in another
State; Bidwell v. Huff, 103 Fed. 376, holding State court judgment is good
foundation for creditor's bill in Federal court; American Mut. Life Ins.
Co. v. Mason, 169 Ind. 18, 64 N. E. 526, holding where transcript of sister
State record shows that court had a judge, clerk and seal *it will be pre-
sumed to be court of general jurisdiction; Barbee v. Shannon, 1 Ind. Ter.
208, 40 S. W. 587, holding adjudication by court of Creek Nation that
lease was valid precluded inquiry as to validity in subsequent suit in
District Court; Succession of Caldwell, 114 La. 196^ 108 Am. St Bep. 347,
38 South. 142, applying rule to decree of adoption; Gr^y v. Richmond
Bicycle Co., 167 N. Y* 366, 60 N. E. 666, holding judgment in one State
by payee against maker of note bars suit in another State by transferee ;
Mottu V. Davis, 161 N. C. 242, 66 S. E. 971, holding Virginia court would
not relieve against judgment of another State based on gambling trans-
action; Arrington v. Arrington, 127 N. C. 196, 52 L. R. A. 201, 37 S. E. 213,
holding in action on judgment for divorce and alimony rendered in another
State defendant cannot plead to merits of original action; Anderson v.
Chicago Title & Trust Co., 101 Wis. 391, 77 N. W. 712, hdding County
Court judgment cannot be collaterally attacked in another State; dis-
senting opinion in Haddock v. Haddock, 201 U. S. 632, 50 L. Ed. 896, 26
Sup. Ct. 626, majority holding mere domicile of one party to marriage does
not give State court jurisdiction to render divorce decree enforceable else^
where against nonresident constructively served; dissenting opinion in
Smith V. WUling, 123 Wis. 386, 101 N. W. 696, construing judgment note
with name of payee in blank ; McElmoyle v. Cohen, 13 Pet. 326, 10 L. Ed.
184, holding suit brought in one State upon judgment obtained in another,
is barred by local statute of limitations ; Christmas v. Russell, 5 Wall. 302^
18 L. Ed. 479, holding State law providing that no action shall be main-
tained on judgment obtained without State, where cause would have been
barred by local statute of limitations, unconstitutional; Michaels v. Post,
21 Wall. 428, 22 L. Ed. 526, holding decree of bankruptcy by court with
jurisdiction cannot be attacked on ground petition was fraudulent; Lamp
Chimney Co. v. Brass & Copper Co.; 91 U. S. 661, 28 L. Ed. 889, holding decree
• of bankruptcy by a court with jurisdiction cannot be assailed directly, unless
decree is void in form, or due notice was not given ; Tenney v. Townsend,
9 Blatchf . 277, Fed. Cas. 13,832, holding in action on judgment of another
State, declaration averring that it was a court of general jurisdiction, but
not that it had jurisdiction of person of defendant, was sufBcient; Moore
v. Paxton, Hempst. 61, Fed. Cas. 9772a, holding statute of limitation not
pleadable to judgment rendered in another State; Moch v. Insurance Co.,
4 Hughes, 119, 10 Fed. 706, holding that judgment of court as to its own
jurisdiction is binding everywhere; Jacquetto v. Hugunon, 2 McLean, 129,
3 Wheat. 234-236 NOTES ON U. S. REPORTS. 806
Fed. Cas. 7169, holding nil debet cannot be pleaded in aetion on judg-
ment; as also in Westerwelt v. Lewis, 2 McLean, 513, Fed. Cas. 17,446;
Whitaker v. Bramson, 2 Paine, 222, Fed. Cas. 17,626, holding it will be
presumed that record of judgment of another State conforms to its laws;
Sharon v. Hill, 11 Sawy. 304, 371, 26 Fed. 346, 391, judgment of State
court can have no other effect as an estoppel in Federal court than in
court of State; Burnham v. Webster, 1 Wood. & M. 175, 178, Fed. Cas.
2179, holding foreign judgment is only prima facie evidence of what it
decides; Sumner v. Marcy, 3 Wood. & M. 117, Fed. Cas. 13,699, holding
judgment recovered in New York, in order to reach property situated
there, is entitled to no more force in another State than in home State;
Barras v. Bidwell, 3 Woods, 7, Fed. Cas. 1039, holding fraud not pleadable
to action on judgment, unless it would be good in courts where judgment
was rendered; Amy v. Manning, 38 Fed. 868, holding that in action on
judgment the only issue is jurisdiction; First National Bank v. Cunning-
ham, 48 Fed. 514, holding judgment rendered in another State is open to
same attacks he^re as there; Lynde v. Columbus etc. Ry. Co., 67 Fed. 996,
holding plea of former judgment failing to aver court had jurisdiction of
parties is good; Alkire Grocery Co. v. Richesin, 91 Fed. 83, holdins: State
court judgment between debtor and creditor binding; Hearfield v. Bridges,
75 Fed. 51, 44 U. S. App. 574, holding judgment in State court giving title
under statute is not subject to collateral attack in Federal court ; Hunt v.
Mayfield, 2 Stew. 129, holding want of jurisdiction must be specially
pleaded; Lucas v. Copeland, 2 Stew. 153, in debt on judgment in another
State, plea ailing irregularity is bad; Wyman v. Campbell, 6 Port. 237,
31 Am. Dec. 686, holding judgment of Orphans' Court, within its juris-
diction, cannot be collaterally impeached; Mills v. Stewart, 12 Ala. 95,
holding amplified copy of judgment of sister State being offered, presump-
tion is it had jurisdiction; Bank of North America v. Wheeler, 28 Conn.
439, 73 Am. Dec 684, holding judgment in another State is a bar to action
pending here, even where there is an appeal operating as a proceeding in
error; Latine v. Clements, 3 Ga. 429, holding action lies against an ad-
ministrator with will annexed in Georgia, on judgment obtained in Vir-
ginia, against an executor; Tucker v. Harris, 13 Ga. 10, 58 Am. Dec. 493,
holding that jurisdiction being shown, judgment of inferior court is con-
clusive; McJilton V. Love, 13 111. 493, 54 Am. Dec 452, holding same faith
and credit must be given to judicial proceedings in sister State, as are
given to them in the courts of that State ; Firemen's Ins. Co. v. Thompson,
155 111. 209, 46 Am. St. Bep. 339, 40 N. £. 490, enforcing judgment of other
State against domestic corporation, upon service upon one d^lared its
agent by State statute ; Davis v. Lane, 2 Ind. 549, 54 Am. Dec. 469, holdini^r
nil debet not good plea to judgment of sister State ; as also in Buchanan v.
Port, 5 Ind. 266, and The Indianapolis etc. Ry. Co. v. Risley, .50 Ind. 62,
to same effect; Walker v. Sleight, 30 Iowa, 326, holding error in judgment
can only be taken advantage of by appeal; Williams v. Preston, 3 J. J.
Marsh. 604, 20 Am. Dec 184, holding judgment prima facie evidence where
rendered is only prima facie here; Fletcher v. Ferrel, 9 Dana, 377, 35 Am.
Dec. 148, holding purchaser of subject matter of suit pending in another
S07 HAjhiPTON V. McCONNEL. 3 Wheat. 234-236
State takes subject to judgment; Dudley v. Ldndsey, 9 B. Mon. 488, 50
Am. Dec. 524, holding statute of limitations does not run against judg-
ment of United States Circuit Court; Mackee v. Caimes, 2 Mart. (La.)
(N. S.) 601, holding judgment in sister States sustains plea of res judicata;
as also in West Feliciana R. R. v. Thornton, 12 La. Ann. 738, 68 Am. Dec.
781, to same effect; Scott v. Bogart, 14 La. Ann. 260, holding later of two
conflicting decrees will prevail where party failed to plead first in bar;
Harding v. Alden, 9 Me. 149, 23 Am. Dec. 554, holding decree of divorce
against nonresident is effective in sister State as a dissolution of marriage,
but not as to pa3rments by husband; Hall v. Williams, 10 Me. 286, 287,
holding erroneous judgment is binding in courts of sister States as
amended; McKim v. Odom, 12 Me. 110, holding judgment from another
State is conclusive ; Wernwag v. Pawling, 6 Gill & J. 607, 25 Am. Dec. 319,
placing judgment of another State on same footing as domestic; as also
in Brengle v. McClellan, 7 Gill & J. 441, holding judgment of another
State has the same conclusive effect here as in its own State; Bank of
the United States v. Bank, 7 Gill, 432, holding judgment of sister State is
prima facie evidence of court's jurisdiction ; Carleton v. Bickf ord, 13 Gray,
594, 595, 74 Am. Dec. 653, 654, holding, in action on judgment of another
State, return of officer in that action may be contradicted by parol evi-
dence; Haggerty v. Amory, 7 Allen, 460, holding a discharge in bank-
ruptcy being good defense to judgment rendered in New York, may be
set up here to action on such judgment; Wilcox v. Kassick, 2 Mich. 169,
171, 174, replication, to plea of lack of service and notice, that record
avers x)ersonal service is good; Warren v. Lusk, 16 Mo. Ill, when record
shows defendant appeared by attorney, evidence that attorney had no
authority is inadmissible; Dunlap v. Waldo, 6 N. H. 453, giving full credit
to seal of county in another State; Kittred^ v. Emerson, 15 N. H. 263,
holding judgment of State court, with jurisdiction, is conclusive every-
where; Rogers v. Odell, 39 N. H. 458, holding judgment of sister State
rendered during pendency of suit here is a bar ; Lanning v. Shute, 5 N. J. L.
779, holding nil debet is bad plea to declaration of judgment of another
State ; Besley v. Palmer, 1 Hill, 484, holding judgment of another State is
as effectual in destroying a demand as one of our own court; Dobson v.
Pearce, 12 N. Y. 167, 170, 62 Am. Dec. 155, 157, holding judgment of sister
State that judgment here was obtained by fraud is conclusive of that fact ;
Suydam v. Barber, 18 N. Y. 471, 75 Am, Dec. 256, gives to judgment in
another State the same effect it had there; Revere Copper Co. v. Dimock,
90 N. Y. 37, where defendant was discharged in bankruptcy, after default
of defendant, but before judgment in sister State was rendered, discharge
is no defense to action upon the judgment; Morris v. Burgess, 116 N. C.
42, 21 S. E. 28, holding, same effect is given to judgment of another State
offered in evidence here, as it would receive in another court of the same
State; Burnley v. Stevenson, 24 Ohio St. 479, 15 Am. Rep. 626, holding
decree in relation to land in another State, may be there pleaded as a
defense; Evans v. Tatem, 9 Sei^, & R. 260, 11 Am. Dec. 720, holding pleas
nil debet and nul tiel record are bad, to action on decree of another State ;
Benton v. Burgot, 10 Serg. & R. 241, holding pleas of fraud, imposition,
3 Whef t. 234:-236 NOTES ON U. S. REPORTSv 808
etc., to action on judgment of another State fire demurrable ; Baxley ▼.
Linah, 16 Pa. St. 248^ 65 Am. Dec. 496, holding judgment of. another State
is bar to proceeding here; Wetherill v. Stillman, 66 Pa. St. 116, holding
judgment of another State has same conclusiveness here as at home;
McCreery v. Davis, 44 S. C. 211, 51 Aln, St. Rep. 806, 22 S. E. 184, refusing
to recognize divorce granted by another State against party domiciled
here, and served by publication ; Moreu v. Killibrew, 2 Yei^. 378, no action
can be maintained on judgment rendered in sister State by court without
jurisdiction ; Cook v. Thornhill, 13 Tex. 297, 65 Am, Dec. 66, holding judg-
ment of State court has same force and effect in every other State as it
has where rendered ; Hoxie v. Wright, 2 Vt. 267, judgment of another
State is conclusive against nonresident defendant if he appeared; Boston
I. R. F. v.Hoit, 14 Vt. 98, holding assumpsit will not lie on judgment of
sister State; Newcomb v. Peck, 17 Vt. 308, 44 Am. Dec. 841, holding nil
debet is bad plea to such a judgment ; Lapham v. Briggs, 27 Vt, 32^ holding
want of notice or appearance on part of defendant does not avoid such a
judgment ; McGilvray v. Avery, 30 Vt. 541, holding judgment in one State
is bar to suit pending in another; Coleman v. Waters, 13 W. Va. 307,
holding like principal case; Black v. Smith, 13 Wv Va, 792, judgment based
on judgment of another State may be inquired into for equitable causes :
Sanborn v. Perry, 86 Wis. 366, 56 N. W. 339, giving to disallowance and
affirmance of claim against estate, force and effect it had in State where
rendered;' Ferry Co. v. Chicago etc. Co., 3 McCrary, 613, 11 Fed. 381,
Mervin v. Kumbel, 23 Wend. 303, and Dickinson v. Railroad Co., 7 W. Va.
418, arguendo; United States v. Reese, 92 U. S. 251^ 23 L. Ed. 576, as to
what "State" in Constitution includes; dissenting opinion in Wright v.
White, 14 La. Ann. 585, majority holding that judgment obtained in an*
other State could be substituted here by way of amendment as the cause
of action so as to maintain the attachment ; Anderson v. Chicago Title etc.
Co., 77 N. W. 712, upholding receiver's judicial sale against collateral
attack ; Emery v. Berry, 28 N. H. 486, 61 Am. Dec. 626, holding that States,
except so far as governed by the Constitution, are foreign independencies;
Bank v. Hancock, 35 La. Ann. 44, arguendo; ' *
Distinguished in Whitley v. Spokane etc. Ry. Co., 23 Idaho, 657, 132
Pac. 125, holding recovery in foreign State under Idaho death statute did
not bar an action in Idaho by heir under Idaho law who was barred from
participating as heir under laws of foreign State; De Vail v. De Vail,
67 Or. 135, 109 Pac. 768, holding record, of memorandum of foreign judg-
ment did not create lien on realty; dissenting opinion in Fauntleroy v.
Lum, 210 U. S. 244, 62 L. Ed. 1045, 28 Sup. -Ct. 641, majority holding judg-
ment of court of State where cause did not arise^ based on arbitration
award in State where cause arose, was binding, though award could not
liave been made under laws of that State ; Thompson ▼. Whitman, 18 WalL
463, 21 L. Ed. 900, holding that jurisdiction of court may be inquired into;
Hilton v. Guyot, 159 U. S. 183, 40 L. Ed. 115, 16 Sup. Ct. 161, holding
.judgment of foreign 'Country is not conclusive if by their law our own
judgments are not; Warren etc. Co. v. Insurance Co., 2 Paine, 508, Fed.
Cas. 17,206, holding one may show fraud or lack of jurisdiction; Lucas v.
809 . HAMPTON v. MoCONNEL. 3 Wheat. 234-236
Bank, 2 Stew. 309, holding want of jurisdiction is a good plea to judgmeAt
of sister State; Aldtieh v. Kinney, 4 Conn. 383, 10 Am. Dec. 152, holding
that, in action on judgment^ one may show defendant neither appeared
nor was served; Pritchett v. Clark, 3 Har. 625, 526, holding "full faith"
will be given to judgments of sister State only if it appear that court bad
jurisdiction ; Sammis v. Wightman, 31 Fla. 251, holding qi^estion of
former's court jurisdiction of person i^ay be considered; Davis y. Smith,
5 Ga. 297, 48 Am. Dec. 296, holding jihlgment of another State may be
impeached for fraud or want of jurisdiction; Dearing v. Bank, 5 Ga. 512,
48 Am. Dec. 310, holding State court cannot conclude without his consent
right of a foreign citizen to litigate his olaim to property in its ;furi8dic-
tion; Sharman v. Morton, 31 Ga. 45, holding defendant may plead want
of notice, fraud, etc. ; McCauley v. Hargroves, 48 Ga. 52, 15 Am. Bep. 661t
holding defendant may show service was effected out of territorial juris-!
diction; Bimeler v. Dawson, 4 Scam. 540, 39 Am. Dec. 432, holding de-
fendant may impeach judgment by showing fraud or want of jurisdiction ;
Baltzell V. Nosier, 1 Iowa, 589, 63 Am. Dec. 467, holding, in action on
judgment of sister State, defendant may plead that attorney confessing
judgment appeared without authority; Blackman v. Wright, 96 Iowa, 551,
65 N. W. 846, holding judgment of another State is not binding on parties
without jurisdiction, so as to affect title to land here; Middlesex Bank v.
Butman, 29 Me. 23, holding judgment of court of sister State without
jurisdiction is of Tio validity; Commonwealth v. Green, 17 Mass. 546, re-
stricting rule to civil actions; Warren v. Flagg, 2 Pick. 449, holding nil
debet is a proper plea in action on judgment of justice of peace of another
State ; Hall v. Williams. 6 Pick. 242, 17 Am. Dec. 364, holding judgment of
another State may be ' avoided if defendant neither appeared nor was
served; Gleason v. Dodd, 4 Met. 337, holding judgment of sister State by
court without jurisdiction of subject and parties is not entitled to "full
faith and credit"; Miller v. Ewing, 8 Smedes & M. 431, holding judgement
of court without jurisdiction is void; Sallee v. Hays, 3 Mo. 118, holding
judgment of sister State without actual notice to defendant, is not entitled
to "full faith and credit" ; Turner v. Hamilton, 88 Fed. 469, holding one
cannot plead usury as defense to a judgment, when he has neglected to do
so in the trial; Robinson v. Prescott, 4 N. H. 453, placing judgment of
justice of peace on same footing as foreign judgment ; Whittier v. Wen-
dell, 7 N. H. 259, holding judgment of another State, where defendant
neither appeared nor was served, is not a bar to action here; Judkins v.
Insurance Co., 37 N. H^ 477, 480, 481, holding nil debet is good plea in
action on judgment of sister State, but jurisdiction is alone to be ques-
tioned; Leith V. Leith, 39 N. H. 41, 42, inquiring into residence of parties,
notwithstanding record; Moulin v. Insurance Co., 24 N. J. L. 237, 240,
refusing to give "full faith" to judgment of sister' State against foreign
corporation, when service was on president, accidentally in that State ;
Shumway v. Stillman, 4 Cow. 293, 15 Am. Dec. 375, holding judgment of
another State may be avoided by showing want of jurisdiction under plea
of nul tiel record; Ferguson v. Crawford, 70 N. Y. 261, 26 Am. Rep. 69B»
holding want of jurisdiction may be set up against a judgment, and recital
/
3 Wheat. 236-246 NOTES ON U. S. REPORTS. 810
of jurisdictional facts may be disproved; Rigney v. Rigney, 127 N. Y. 415,
24 Am. St. Rep. 466, holding decree of alimony against nonresident neither
appearing nor served is not binding; Arndt v. Amdt, 15 Ohio, 43, bolding^
judgment is not prima facie evidence of debt, when service is upon the
land; Pennywit v. Foote, 27 Ohio St. 615, 22 Am. Rep. 348, holding judg-
ment of sister State may be impeached for want of jurisdiction; Price v.
Schaei¥er, 161 Pa. St. 534, 29 Atl. 279, holding affidavit that defendant
neither appeared, had notice, nor was served, sufficient; Rathbone v. Terry,
1 R. I. 77, holding judgment of sister State against nonresident, neither
notified npr served, void; Miller v. Miller, 1 Bail. 248, holding action can-
not be maintained on judgment of sister State against defendant without
its jurisdiction; Cameron v. Wurtz, 4 McCord, 280, in marshaling assets,
judgment of another State ranks as a simple contract debt; Napier v.
Gidiere, 1 Spear Eq. 230, 40 Am. Dec. 616, holding jurisdiction of court
may be inquired into; McCreery v. Davis, 44 S. 0. 211, 51 Am. St. Rep.
805, 22 S. E. 184, refusing to recognize divorce granted by another State
against party domiciled here, and served by publication; Moren v. Killi-
brew, 2 Yerg. 378, holding no action can be maintained on judgment
rendered in sister State by court without jurisdiction ; Estes v. Kyle, Meiscs,
42, holding pleas affecting remedy may be set up, though they could not
have been in State where judgment was rendered; Draper v. €k>rman, 8
I^eigh (Va.), 638, holding judgment of District of Columbia is foreign, and
nil debet is a good plea; Whittemore v. Adams, 2 Cow. 633, refusing to
enforce a foreign discharge in insolvency which merely barred imprison-
ment for the debt and not the debt itself, on the ground that it affected
the remedy merely.
Conclusiveness of sister State judgment. Note, 26 Am. Rep. 30.
Foreign judgment, how far conclusive. Note, 11 Am. Rep. 437, 438.
Foreign judgment, fraud in obtaining jurisdiction. Note, 7 Am. Rep.
136.
Right to resist judgment of sister State on ground of fraud. Note,
32 L. R. A. (N. S.) 918, 932.
Effect of judgment on unauthorized appearance. Note, 21 L. R. A.
858, 860.
Domicile of wife for purpose of divorce suit. Note, 16 L. R. A. 498.
Miscellaneous. Cited in Trowbridge v. Spinning, 23 Wash. 60, 64
L. R. A. 204, 62 Pac. 128, taking judicial notice in action on sister State
judgment for alimony of laws of such State relative to defenses in suits
for alimony.
e Wheat. 236-246, 4 !■. Ed. 879, THE FOBTTTNA
Neutral ship owner lending his name to cover fraud with resrard to cargo
•nbjects ship to condemnation.
Cited in United States v. One Hundred and Twenty-nine Packages, 27
Fed. Cas. 286, holding where party, for fraudulent purposes, mixes pro-
hibited and unprohibited goods, he forfeits all; United States v. One ete.
8U GELSTON v. HOYT. 3 Wheat. 246-336
Barrels, 27 Fed. Cas. 286, 287, holding license obtained by fraud will not
prevent forfeiture; The Adula, 89 Fed. 361, to point that spoliation of
papers is strong proof of guilt.
Miscellaneous. Cited in United States v. One Hundred and Twenty-
nine Packages, 27 Fed. Cas. 289, but not in point.
3 Wlieat. 24&-636, 4 !■. Ed. 381, GELfiTON ▼. HOYT.
Writ of error may be directed to any State court In which record and Judg-
mesit may be found.
Approved in Sioux Remedy Co. v. Cope, 235 U. S. 20i), 59 L. Ed. 196,
35 Sup. Ct. 57, following rule; Kentucky v. Powers, 139 Fed. 489, 491,
right of removal under Rev. Stats., § 641, is not affected by fact that rights
thereunder may be enforced ultimately by proceedings in error in United
States supreme court ; Webster v. Reid, 11 How. 457, 13 L. Ed. 769, holding
writ of error may be directed to any court which has the custody of the
record, and can certify it, though not the court which rendered the judg-
ment; Atherton v. Fowler, 91 U. S. 147, 23 L. Ed. 266, holding, where,
according to State practice, higher court after judgment sends record to
lower, writ lies to either; Polleys v. Black River I. Co., 113 U. S. 82, 28
L. Ed. 938, 5 Sup. Ct. 370, holding writ may be issued to inferior court, if
higher remits whole record; Lee v. Johnson, 116 U. S. 49, 29 L. Ed. 570,
6 Sup. Ct. 249, where writ was directed /to inferior court which entered
final decree; dissenting opinion in Underwood v. McVeigh, 131 U. S. cxxi,
cxxiv, 21 L. Ed. 954, 965, majority dismissing writ, because directed to
subordinate court. Cited in Fleming v. Clark, 12 Allen, 197, holding writ
was properly addressed to Superior Court in which record remained; as
also in Bryan v. Bates, 12 Allen, 205; Hartung v. People, 26 N. Y. 160,
holding, where record had been remitted to inferior court, Supreme. Court
had power to reach it; McGuire v. Commonwealth, 3 Wall. 386, 18 L. Ed.
165, Brumagim v. Chew, 21 N. J. £q. 185, arguendo.
Distinguished in Stevens v. Clark, 62 Fed. 325, 18 U. S. App. 584, hold-
ing writ of error must be issued and filed within prescribed time, and this
requirement cannot be waived.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 836, 847.
Courts must expomid the law as they find it.
Cited in concurring opinion of Baldwin in Decatur v. Paulding, 14 Pet.
604, 10 L. Ed. 612, Appendix.
At common law any person may, at Ids peril, seize for forfeiture to the
government.
Cited in Taylor v. United States, 3 How. 205, 11 L. Ed. 563, holding cus-
tom officer may seize goods in another district; United States v. Whiskey,
28 Fed. Cas. 538, arguendo.
Distinguished in Eline Ex parte Orozco, 201 Fed. 110, holding President,
in time of peace, could not without process arrest alien and imprison him
3 Wheat. 24&-336 NOTES ON U. S. R^ORTS. 812
withotit ttial while government searched for evidence against him of vio-
lating neutrality laws ; United States v. George Spranl & Co., 185 Fed. 407,
107 C. C. A. 669, and United States v. Two Barrels of Desiccated Eggs,
185 Fed. 304, both holding under food and drug act goods sought to be
condemned could not be seized in advance of proceedings.
Under neutrality act of 1794, forfeiture attaches at tba moment of the
commission of the offense.
Approved in Caldwell v. United States, 8 How. 382, 12 L. Ed. 1122,
applying rule under act of 1799; Henderson's Distilled Spirits, 14 Wall.
56, 20 L. £d. 817, holding where forfeiture was made absolute by statute,
condemnation related back to time of offense; United States v. Stowell,
133 U. S. 17, 33 L. Ed. 599, 10 Sup. Ct. 247, holding under act of 1875,
forfeiture dates from commission of offense; United States v. Barrels of
Whisky, 1 Abb. (U. S.) 100, 101, 103, Fed. Cas>15,095, holding if statute
is in direct terms, forfeiture takes place from time of offense; In re Rosey,
6 Ben. 510, Fed. Cas. 12,066, 8 Bank. Reg. 513, declaring penalty given by
statute incurred from tifne of violation; as also in United States v. Bark
Reindeer, 2 Cliff. 68, ii'ed. Cas. 16,144, 27 Fed. Cas. 755, where statute
wisus absolute; United States v. Distilled Spirits, 3 Cliff. 315, Fed. Cas.
16,306, to the same effect; The Cloth Cases, Crabbe, 354, Fed. Cas. 2902,
holding forfeiture occurred on false entry of goods; The Maria, Deady,
100, Fed. Cas. 9075, holding vessel forfeited from time of sale to alien;
United States v. Mackoy, 2 Dill. 306-, Fed. Cas. 15,696, holding release on
bond of property seized does not divest court of jurisdiction to go on with
condemnation proceedings; Clark v. Insurance Co., 1 Story, 134, Fed. Cas.
2832, holding property does not vest in government until after seizure,
it then relates back to time of forfeiture; Heidritter v. Elizabeth Oil Cloth
Co., 6 Fed. 141, holding decree relates back to time of offense ; United States
V. Water Cask, 27 Fed. Cas. 345, holding forfeiture applied only to prop-
erty in possession of offender at time of the act ; Kriess v. Faron, 118 Cal.
146, 147, 50 Pac. 389, holding violation of revenue laws, previous to giv-
ing notes, is good defense, though condemnation was afterward; Knee-
land V. Willard, 59 Me. 447, holding forfeiture occurred at time of offense;
also Doyle v. Commissioners of Bait. Co., 12 Gill & J, 492, holding money
bet on election is forfeited from time of deposit; Tracey v. Coree, 58
N. Y. 149, title is not divested until after judicial determination; United
States V. Morris, 10 Wheat. 289, 6 L. Ed. 324, as to the control of the
United States over penalties.
Distinguished in The Nabob, Brown Adm. 119, Fed. Cas. 10,002, holding
forfeiture because of transfer to alien dates from time of condemnation;
Mariatiqui v. Insurance Co., 8 La. 69, 28 Am. Dec. 131, declaring this rule
does not apply to insurers against barratry.
When forfeiture of property under statute takes effect. Note, 7 Ann.
Cas. 899.
Jurisdiction of Federal courts is exclusive in admiralty, seizures and suits
for penalties under Federal law.
813 GELSTON v. HOYT. 3 Wheat. 246-336
•
Cited in New Jersey S. JT. Co. vf Bank, 6 How. 390, 12 L. Ed. 485, hold-
ing seizures under Federal laws belongs to District Conrts; Ashbrook v.
Steamer Golden Gate, Newb. 299, Fed. Cas. 674, holding same as to main-
tain proceedings in rem; United States v. New Bedford Bridge, 1 Wood.
& M. 501, Fed. Cas. 15,867, to same effect as main case; Gates v. Parish,
47 Ala. 161; also as^to validity of discharge in bankruptcy; Voorhies v.
Frisbie, 25 Mich. 479, 12 Am. Rep. 293, holding State courts have no^ juris-
diction of suit by person claiming adverse interest to assignee in bank-
. ruptcy; Bromley v. Goodrich, 40 Wis. 141, 22 Am. Rep. 691, holding
decision of Federal Court as to validity of sale by debtor^, under bank-
ruptcy law, is binding on State courts.
Denied in Warner v. Steamer Uncle 'Sam, 9 Cal. 731, holding Federal
courts have not exclusive jurisdiction of admiralty.
pistinguished in Stoughton v. Mott, 13 Vt. 182, holding action for dam-
ages for seizure may be brought in State courts.
Federal Judgments In admiralty and maritime cases and In forfeitures under
Federal laws, are conclusive upon all other courts.
Approved in Standard Marine Ins. Co. v. Nome Beach Lighterage etc.
Co., 167 Fed. 122, 92 C. C. A. 571, holding record in suit in which vessel was
sold for salvage binding in action by cargo owner against insurer; State v.
Savage, 64 Neb. 699, 90 N. W. .900, hqlding mandamus to governor to appoint
members of police and fire commission of Omaha will not lie where right
of mayor's appointees to hold ofiQce has been adjudicated; Holcomb v.
Phelps, 16 Conn. 131, 132, holding decree of Surrogate Court of New York
appointing administrator is a complete protection in action by adminis-
trator appointed elsewhere.
Distinguished in Perry v. Sweeny, 11 App. D. C. 416, holding order
of Orphan's Court sCdmitting will of realty to probate after jury trial was
not conclusive as to realty in favor of devisees in ejectment between same
parties; Kittredge v. Emerson, 15 N. H. 267, holding injunction issued by
District Court to State court may be disregarded, when in excess of juris*
diction.
Sentence of acquittal is as conclusive as sentence of condemnation.
Cited in People v. Buckland, 13 Wend. 596, following rule; United States
V. Donaldson-Shulz Co., 142 Fed. 301, acquittal of obstructing stream in
prosecution under 30 Stat. 1151, bars silit in equity to compel removal of
same structure; Cooper v. Commonwealth, 106 Ky. 913, 90 Am. St. Rep.
277, 45 L. R. A. 216, 51 S. W. 790, holding acquittal of adultery is conclu-
sive in prosecution for perjury in swearing at former trial that he had
not had sexual intercourse with coadulterer.
Decree of forfeiture binds tlie whole world.
Cited in The Louis Olsen, 74 Fed. 247, holding forfeiture ctits off liens
for supplies furnished before illegal act.
Final decree of acquittal on libel in rem, without certificate of raaatmabie
cause of seizure, is conclusive that s^ure was not Justifiable.
3 Wheat. 246-336 NOTES ON U. S. REPORTS. 814
Approved in United States v. 83 Sa^ks of Wool, 147 Fed. 740, on judg-
ment for claimant of property seized by costomji officers for fraudulent
importation, certificate of probable cause should be entered though verdict
clearly right, where it is shown officers acted in good faith; Agnew y.
Haymes, 141 Fed. 637, Rev. Stats., §§ 970, 989, do not authorize recovery
against revenue officer for wrongful seizure when made upon probable
cause and goods returned intact; St^te v. Cobb, 123 Iowa, 629, 99 N. W.
300, acquittal in prosecution for illegally keeping liquor for sale is bar
to condemnation proceedings; The ApoUon, 9 Wheat. 367, 374, 6 L. Ed.
112, 114, holding decree of acquittal, on a proceeding in rem, without cer-
tificate of probable cause of seizure, is conclusive that seizure was not
justifiable ; Averill v. Smith, 17 Wall. 93, 21 L. Ed. 616, holding certificate
of probable cause by court discharging property, a good. defense to action
against collector for trespass; so also in Stacey v. Emery, 97 U. S. 643,
24 L. Ed. 1036, to same effect; Lamp Chimney Co. v. Brass & Copper Co.,
91 U. S. 661, 23 L. Ed. 339, 13 Bank. Reg. 390, holding decree adjudging
a corporation bankrupt is in the nature of a decree in rem, which can only
be assailed directly ; Coffey v. United States, 116 U. S. 444, 29 L. Ed. 687,
6 Sup. Ct. 441, holding questions as to the sufficiency of the information
not having been formally raised in Circuit Court, could not be raised in
Supreme Court ; McGuire v. Winslow, 23 Blatchf . ,427, 26 Fed. 305, hold-
ing final decree in rem, determines justifiability of seizure ; Hall v. Warren,
2 McLean, 334, Fed. Cas. 5952, holding pendency of proceedings in rem
may be pleaded in abatement, in action against officer for trespass; Tomp-
kins V. Tompkins, 1 Story, 563, Fed. Cas. 14,091, holding probate of State
court not re-examinable ; Williams v. Insurance Co., 3 Sumn. 275, Fed.
Cas. 17,738, holding decree in rem conclusive as to right to salvage; The
Ship Fortitude, 3 Sumn. 230, Fed. Cas. 4953, holding decree in rem con-
clusive as to necessity for repairs; Bradstreet v. Insurance Co., 3 Sumn.
605, Fed. Cas. 1793, holding sentence of foreign court of admiralty in rem
is conclusive for collateral purposes; Bailey v. Sundbei^, 43 Fed. 82,
declaring it conclusive as to question of negl^ence; Bailey v. Sundberg,
49 Fed. 585, 1 U. S. App. 101, holding decree dismissing libel for failure
to give proper notice would not prevent new libel ;.Cucullu v. Orleans Ins.
Co., 6 Mart. (N. S.) (La.) 14, holding sentence of foreign court of ad-
miralty, conclusive of the facts, which it decides; Williams v. Delano,
155 Mass. 14, 28 N. E. 1123, holding pendency of a libel for forfeiture is
bar to action against seizor for conversion; Pinson v. Ivey, 1 Yerg. 350,
holding adjudication by commissioners not conclusive as to rights of par-
ties, but as to quantity of land in warrant; dissenting opinion, Hamilton
V. Burum, 3 Yerg. 33, majority holding every fact necessary to give court
jurisdiction in summary proceeding must appear of record to give judg-
ment validity; Williams v. Saunders, 5 Cold. 78, holding foreign judgment
admitting will to probate conclusive; Schultz v. Schultz, 10 Gratt. 370,
60 Am. Dec. 341, holding judgment of Probate Court rejecting will analo-
gous to judgment in rem ; The Celestine, 1 Biss. 10, Fed. Cas. 2541, Bumhani
V. Webster, 1 Wood. & M. 180, Fed. Cas. 2179, Lapham v. Almy, 13 Allen,
304, but rule not particularly applied.
815 GELSTON ▼. HOYT. 3 Wheat. 24ft^36
Distingruished in Stone t. United States, 167 U. S. 185, 42 L. Ed. 180,
17 Sup. Ct. 781, holding acquittal in criminal action is no defense to ac-
tion against party to recover for timher unlawfully cut from government
land; Smith v. Averill, 7 Blatchf. 33, Fed. Cas. 13,007, holding certificate
of reasonable cause no defense, where property has not been returned;
Webb V. Nickerson, 11 Or. 387, 4 Pac. 1129, where there had been no adju-
dication upon the seizure.
Conclusiveness of judgment in rem. Note, 11 E. B. 0. 45, 46.
C!oncIusivene88 of probate as res judicata. Note, 21 L. B. A. 680.
Becognitlon of foreign State belongs excluslYely to government, and antU
it does BO, courts must consider old state of things as existing.
Cited in Luther v. Borden, 7 How. 57, 12 L. Ed. 605, holding recognition
of the government of a State is conclusive on the courts; Kennett v. Cham-
bers, 14 How. 51, 14 L. Ed. 322, holding until independence of Texas was
recognized, judiciary was bound by old order of things; White v. Hart, 13
Wall. 649, 20 L. Ed. 687, holding recognition by Congress of State Consti-
tution, binds judiciary; Jones v. United States, 137 U. S. 212, 34 L. Ed.
696, 11 Sup. Ct. 83, holding same as to who is sovereign of a territory;
The Three Friends, 166 U. S. 57, 41 I4. Ed. 916, 17 Sup. Ct. 500, holding
people in statute forbidding aid to enemies of nation with whom we are
at peace, covers any insurgent, even if unrecognized (see dissenting opin-
ion of same case, 72, 73, 76, 80, 41 L. Ed. 921, 922, 923, 924, 17 Sup. Ct.
606, 507, 509) ; Williams v. Insurance Co., 3 Sumn. 274, Fed. Cas. 17,738,
holding courts bound by recognition of government; The Ambrose Light,
25 Fed. 418, declaring that recognition of belligerency is a political act;
United States v. Trumbull, 48 Fed. 104, 105, 106, holding "status of"
people is to be regarded by the court as it was then regarded by the
political department; James G. Swan, 50 Fed. Ill, as to status of Indian
tribes in Behring; The Itata, 56 Fed. 510, 512, 15 U. S. App. 1, holding
shipping arms to insurgents is not fitting out vessel for service against
foreign States ; The Three Friends, 78 Fed. 176, 177, 178, foreign "state"
or "people" refers to body politic, recognized as belligerents ; United States
V. Bales of Cotton, 27 Fed. Cas. 328, holding conditions of war and peace
are of political determination; dissenting opinion in Scheible v. Bacho,
41 Ala. 460, majority enforcing executory contract based on loan of Con-
federate treasury notes; Kelley v. State, 25 Ark. 398, holding judiciary
bound by political department, as to status of a State; as also in Central
R. R. etc. Co. V. Ward, 37 Ga. 525, to same effect; Perkins v. Rogers,
35 Ind. 156, 9 Am. Bep. 664, as to existence of peace or war; dissenting
opinion in In re Gunn, 50 Kan'. 231, 32 Pac. 954, majority holding Supreme
Court may review action of house of representatives; dissenting opinion
in People v. Dibble, 16 N. Y. 224, majority holding entry by one not an
Indian on Indian land is an intrusion, though made peaceably with consent
of the Indian, and under a title claimed under a deed of cession, recog-
nized by treaty between United States and Indians; Hawver v. Selden-
ridge, 2 W. Va. 283, 94 Am. Dec. 589, holding whether government of in-
surgents ever became de facto government, is for the determination of
3 Wheat. 336-391 NOTES ON U. S. REPORTS. 816
the political ' department ; Wright v. Overall, 2 Cold. 341, holding payment
in Confederate money not a discharge; Thornton v. Harris, 3 Cold. 169,
holding note given for Confederate money void.
A plea need answer only the gist of the action.
Cited in United States Mfg. Co. v. Stevens, 52 Mich. 334, 17 N. W. 935,
holding the form of action is determined by the subject matter of the
pleading, and not by what the pleader calls it.
Aiter stating facts, plea would aver that the property thereby became and
was actually forfeited. .
Distinguished in Bishop v. Baisley, 28 Or. 128, 41 Pac. 939, remarking
that these technical forms of pleading are abolished iit Oregon.
It is sufficient on libel in rem, for forfeiture, if allegation in plea follows
words of statute.
Approved in United States v. O'Sullivan, 27 Fed. Cas. 369, holding it
is sufficient to describe a statutory offense in the words of statute creating
it, particularly in case of misdemeanors.
Miscellaneous. Cited in Osbom v. United States Bank, 9 Wheat. 870,
6 L. Ed. 286, as an instance of ii^t'erests of United States committed to
agents; United States v. Parcels, 3 Ware, 77, Fed. Cas. 16,512, to point
that information for feiture should be in name 'of United States; Bayard
v. McLane, 3 Harr. 232, incidentally; Summer v. Clark, 29 La. Ann. 103,
as an instance of forfeiture of goods; Lynn v. Gephart, 27 Md. 564, and
The Fideliter, 1 Abb. (U. S.) 578, 1 Sawy. 155, Fed. Cas. 4755, not in
point; Booth v. Ableman, 20 Wis. 611, as having allowed interest on judg-
ment from date of rendition; Slaughter House Cases, 10 Wall. 291, 19
L. Ed. 920, as to when writ acts as a supersedeas; Crawford v. Waterson,
5 Fla. 474, 475, that trespass is proper remedy against one acting under
color of authority; Day v. Compton, 37 N. J. L. 517, Tinker v. Van Dyke,
1 Flipp. 528, Fed. Cas. 14,058, point doubtful.
3 Wlieat. 336-391, 4 L. £d. ^04, UNITED STATES v. BEVAKS.
Jurisdiction of State is coextensive with its territory.
Approved in Wynne v. United States, 217 U. S. 241, 54 L. Ed. 749, 30
Sup. Ct. 447, holding crime committed in that part of harbor of Honolulu
which is within Territory of Hawaii was within jurisdiction of Federal
District Court for Hawaii; Divine v. Unaka Nat. Bank, 125 Tenn. 108,
39 L. R. A, (N. S.) 686, 140 S. W. 749, holding State court had probate
jurisdiction over estate of inmate of soldiers' home situated on land ceded
by State to Federal Government; Rhode Island v. Massachusetts, 12 Pet.
733, 9 L. Ed. 1264, a boundary dispute between two States; dissenting
opinion in Passenger Cases, 7 How. 537, 12 L. Ed. 809, majority holding
State status taxing aliens arriving in their ports, unconstitutional; Smith
V. Maryland, 18 How. 76, 15 L. Ed. 271, holding State may regulate fishing
in soil below low-water mark; Steamboat Co. v. Chase, 16 Wall. 531, 21
L. Ed. 371, holding State court may maintain action, under State statute.
\
817 UNITED STATES v. BEVANS. 3 Wheat. 33G-391
against steamboat company, for death of person; as also in Sherlock v.
Ailing, 93 U. S. 104, 23 L. Ed. 821 ; Manchester v. Massachusetts, 139 U. S.
261, 263, 264, 23 Am. St. Bep. 838, 839, 840, 35 L. Ed. 166, 11 Sup. Ct.
563^ 564, holding State may protect fish in bay within its borders; dissent-
ing opinion in United States v. Rodgers, 150 U. S. 277, 278, 282, 37 L. E'd.
1081, 1082, 1083, 14 Sup. Ct. 120, majority holding Federal courts have
jurisdiction of crime on Detroit river, without each State; United States
V. Ames, 1 Wood. & M. 84, Fed. Cas. 14,441, holding territory belonging
to the United States lying within a State^ but over which jurisdiction
has been ceded to the United States, is not subject to laws of State;
Henry Miller's Case, Brown Adm. 157, Fed. Cas. 9558, holding great lakes
are not "high seas" ; The Wave, Blatchf . & H. 241, Fed. Cas. 17,297, hold-
ing admiralty has jurisdiction of claims for salvage upon waters within
ebb and flow of tide, and within a State; United States v. Plumer, 3 Cliff.
64, Fed. Cas. 16,056, holding indictment averring crime was committed
within admiralty jurisdiction and out of jurisdiction of any particular
State good ; Ex parte Ballinger, 5 Hughes, 390, 88 Fed. 783, piracy not
cognizable in Federal courts, unless without jurisdiction of State courts;
Schooner Wave v. Hyer, 2 Paine, 143, Fed. Cas. 17,300, holding grant
to Federal courts of maritime jurisdiction is not exclusive of State courts;
Ex parte Sloan, 4 Sawy. 331, Fed. Cas. 12,944, -fee of Indian reservation
in United States ^oes not give Federal courts jurisdiction of crime com-
mitted there; United States v. New Bedford Bridge, 1 Wood. & M. 407,
408, 409, 416, 417, 427, 455, 483, 484, 485, Fed. Cas. 15,867, holding offenses
committed within the body of a country cannot be punished by admiralty;
Ex parte Byers, 32 Fed. 406, holding criminal jurisdiction of Federal courts
does not extend to great lakes; The Elexena, 53 Fed. 366, declaring that
State can pass laws to protect oyster-beds; City of Norwalk, 55 Fed. 106,
holding action for death, under State statute, may' be enforced in ad-
miralty ; as also in In re Humboldt L. M. A., 60 Fed. 432 ; United States V.
Peterson, 64 Fed. 147, holding Federal courts have no jurisdiction of
crime committed on Lake Huron, within State of Michigan; Bigelow v.
Nickerson, 70 Fed. 118, 34 U. S. App. 261, holding action for death on
waters within State governed by State laws; In re Kelley, 71 Fed. 547,
550, 651, 552, holding crimiiial laws of United States do not apply to land
ceded to government by State for soldiers' home; Humboldt L. M. A. V.
Christopherson, 73 Fed. 244, 245, 44 U. S. App. 434, where State's bound-
aries extend three miles to sea, her laws giving action for death are opera-
tive within such boundaries; United States v. Arms and Ammunition, 24
Fed Cas. 863, holding admiralty has jurisdiction of seizure on tide water
anywhere; Caldwell v. State, 1 Stew. & P. 377, holding State court has
jurisdiction of crime committed on Indian lands ; Franklin v. United States,
1 Colo. 38, holding Territory of Colorado "not under exclusive jurisdiction
of United States" ; Reynolds v. The People, 1 Colo. 180, holding indictment
for selling liquor within military reservation good; Savannah v. Georgia,
4 Ga. 41, holding State may construct wharves on navigable streams within
its limits; United States v. Stahl, McCahon, 211, Fed. Cas. 16,373, United
1—52
3 Wheat. 336-391 NOTES ON U. S. REPORTS. 818
States has no 'jurisdiction of crime upon military reservation in State;
Clay V. Kansas, 4 Kan. 58, holding State has jurisdiction over crimes
committed on military reservation; The Wharf Case, 3 Bland Ch. 372,
holding State may make regulations for ports within its limits; Common-
wealth V. Peters, 12 Met. 392, 394, holding Federal courts have no juris-
diction of crime on bay within a State; Dunham v. Lamphere, 3 Gray,
270, holding State may regulate taking fish in the sea within its limits;
as also in Commonwealth v. Manchester, 152 Mass. 244, 246, 247, 23 Am.
St. Rep. 882, 834, 885, 25 N. E. 117, 118; The People v. Tyler, 7 Mich. 212,
219, 74 Am. Doc. 708, holding territory of a State or nation includes waters
within its limits ; County of Cherry v. Thacher, 32 Neb. 353, 354, 49 N;' W.
352, holding government post trader not exempt from State taxes; D4>ver
V. Portsmouth Bridge, 17 N. H. 229, holding State legislatures may author-
ize erection of bridges over navigable waters within its limits; People v.
Godfrey, 17 Johns. 232, holding land on which government fort stands,
not having been purchased, State has jurisdiction of crimes done there;
Whitford v. Railroad Co., 23 N. Y. 471, holding statute of State, giving
damages for death, does not apply where injury was done in another State ;
Mahler v. Transportation Co., 35 N. Y. 357, holding jurisdiction of State
extends to waters within its limits; as also in People v. Welch, 141 N. Y.
270, 271, 88 Am. St. Rep. 796, 36 N. E. 329; Dunlap v. Commonwealth,
108 Pa. St. 613, holding State has jurisdiction over waters of lake; Chase
V. Steamboat Co., 9 R. I. 429, 430, 11 Am. Rep. 279, holding action may
be maintained under State statute for death on bay; In re O'Connor, 37
Wis. 384, 385, 19 Am. Rep. 767, 768, holding State retains jurisdiction
over land, title to which is not vested in United States; Holmes v. Jen-
nison, 14 Pet. 617, 619, 10 L. Ed. 620, 621, and Gamer's Case, 3 Gratt. 750,
arguendo.
Distinguished in Assenting opinion in Dred Scott v. Sandford, 19 How.
610, 15 L. Ed. 786, majority holding void act prohibiting slavery north of
certain line; United States v. Carter, 84 Fed. 625, where vessel was lying
in waters within the jurisdiction of United States.
State jurisdiction in regard to vessel. Note, 62 Am. Dec. 238.
Congress may pass all laws necessary aii4 prbper for the exercise of admlr>
alty Jurisdiction.
Approved in United States v. Banister Realty Co., 155 Fed. 594, hold-
ing power of Congress with respect to navigable waters rested in part on
power to control admiralty and maritime jurisdiction of United States;
United States v. Eckford, 6 Wall. 488, 18 L. Ed. 921, holding jurisdiction
cannot be exercised by Circuit Court, unless plaintiff can bring his suit
within some act of Congress; dissenting opinion in Tennessee v. Davis,
100 U. S. 275, 279, 25 L. Ed. 654, 656, majority holding Congress can give
Circuit Courts jurisdiction to remove a prosecution of an officer acting
under authority of United States; In the Matter of Barry, 136 U. S. 608,
42 Fed. 121, Fed. Cas. 1059, 34 L. Ed. 507, holding District Court of United
States has no power to issue writ of habeas corpus to restore infant, un-
lawfully detained by grandparents; Jones v. United States, 137 U. S. 212,
819 UNITED STATES v. BEVANS. 3 Wheat. 336-391
34 L. Ed. 696, 11 Sup. Ct. 83, holding murder committed on a guano island
may be tried in Federal courts under statute; United States v. Plumer,
3 Cliff. 66, Fed. Cas. 16,066, holding Circuit Court is without common-law
authority to try crimes; as also in United States v. Durkee, McAll. 200,
Fed. Cas. 15,009, and United States v. Lewis, 13 Sawy. 533, 36 Fed. 450,
to the same effect ; United States v. New Bedford Bridge, 1 Wood. & M.
426, 432, 435, 438, 448, Fed. Cas. 15,867, holding common law gives no
jurisdiction to Federal courts; In re Metzger, 17 Fed. Cas. 234, holding
all Federal courts, except Supreme Court, receive their jurisdiction from
Congress; United States v. Abbott, 24 Fed. Cas. 744, holding indictment
would lie under the statute; United States v. Mackenzie, 26 Fed. Cas.
1120, holding Federal courts have no common-law criminal jurisdiction;
United States v. Mackenzie, 30 Fed. Cas. 1162, holding Congress can pro^
vide that crimes committed on board a naval vessel, by persons who form
part of the naval forces, be tried exclusively by court-martial; Rhode
Island V. Massachusetts, 12 Pet. 721, 745, 9 L. Ed. 1259, 1268, arguendo.
Distinguished in The Wave, Blatchf. & H. 262, ^ed. Cas. 17,297, holding
authorization of Congress not necessary to jurisdiction of admiralty in
civil causes.
Where particular words In statute are followed by general term, later Is
restricted to cases of like nature to those enumerated.
Approved in Missouri Pac. Ry. Co. v. United States, 211 Fed. 896, 128
C. C. A. 271, applying rule in construing hours of service act of 1907;
First Nat. Bank v. United States, 206 Fed. 379, 46 L. B. A. (N. S.) 1139,
124 C. C. A. 256, holding rule especially applicable to criminal statutes;
United States v. Atchison etc. Ry. Co., 142 Fed. 191, construing bill for
injunction against railroad for granting rebates and order made thereon;
State V. Pabst Brewing Co., 128 La. 774, 55 South. 351, construing mean-
ing of "other place'' in statute licensing sale of liquors ; Corey v. Bath, 35
N. H. 539, construing statute forbidding play on Sunday.
Admiralty has Jurisdiction of crimes committed without limits of a State.
Approved in Imbrovek v. Hamburg-American Steam Packet Co., 190
Fed. 235, and Atlantic Transport Co. v. Imbrovek, 234 U. S. 60, 51 L. R. A.
(N. S.) 1157, 58 L. Ed. 1212, 34 Sup. Ct. 733, both holding admiralty had
jurisdiction of suit in personam by employee of stevedore against employer
to recover for injuries sustained while boarding .vessel at dock in navigable
waters; State v. Eldredge, 27 Utah, 487, 76 Pac. 340, legislature may au-
thorize State board of equalization to assess property situated partly in
one county and partly in another ; dissenting opinion in Waring v. Clarke,
5 How. 481, 482, 12 L. Ed. 245, 246, majority holding subject matter of con-
tract gives jurisdiction in admiralty.
Distinguished in Neall v. United States, 118 Fed. 701, upholding District
Court's jurisdiction over prosecution of army officer for forging United
States obligation.
Powers of United States are not exclusive unless expressly made so.
' Cited in dissenting opinion in Passenger Cases, 7 How. .555, 556, 12 L. Ed.
816, 817, majority holding State statutes taxing aliens arriving in their
3 Wheat. 392-435 NOTES ON U. S. REPORTS. 820
ports unconstitutional; People v. Naglee, 1 Cal.'235, 52 Am. Dec 315, bold-
ing act licensing foreign minera constitutional.
Jurisdiction over sea. Note, 46 L. IL A. 277,
Miscellaneous. Cited in The Underwriter, 119 Fed. 736, 741, arguendo;
Gedney v. L'Amistad, 10 Fed. Cas. 143, citing anoiment of Webster;
United States v. Rhodes, 1 Abb. (U. S.) 60, Fed. Cas. 16,151, as an instance
of constructive power of Congress; Schooner Volunteer, 1 Sumn. 559,
Fed. Cas. 16,991, and United States v. New Bedford Bridge, 1 Wood. & M.
442, 448, 453, 470, 478, Fed. Cas. 15,867, citing note as to admiralty juris-
diction; Houghton V. Page, 2 N. H. 44, as to force of common law; The
C. F. Man. Co. v. Rogers, 19 Ga. 421, not in point.
i
S Wheat. 392-409, 4 L. Ed. 418, THE AEOLUS.
Not cited. •
3 Wheat. 409-433, 4 !•. Ed. 422; 5 Wheat. 433, 5 L. Ed. 127, THE ATAI.ANTA.
DedBions of Supreme Oouit are not authority exbept so far as necessaty to
case decided.
Approved in Chesapeake etc. Canal Co. v. United States, 223 Fed. 932,
L. R. A. 1916B, 734, 139 C. C. A, 406, holding statements as to presumption
of payment from lapse of time in United States v. Williams, Fed. Cas.
16,720, were dicta and not binding on court.
3 Wheat. 433-486, 4 L. Ed. 428, HOUSTON v. MOOBE.
i
Snl;>reme Oourt has no Jurisdiction by writ of error to State Supreme Court,
unless judgment- or decree be final one.
Cited in dissenting opinion in Ex parte Crane, 5 Pet. 206, 8 L. Ed. 98,
majority holding Supreme Court may, by mandamus, command Circuit
Court to sign bill of exceptions; United States v. Girault, 11 How. 32, 13
L. Ed. 692, holding that if decree is not final, writ of error should be dis-
missed and case remanded; MacLeod v. Graven, 79 Fed. 84, 47 U. S. App.
573, holding writ of error does not lie from judgment not final; Fleming
V. Clark, 12 Allen, 197, no writ of error except from final decree; as also
in State v. Batchelder, 5 Minn. 236, 80 Am. Dec. 414.
What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. B. A. 516.
Judgment reversing that of Inferior court and awarding a venire facias
de novo is not a final decree.
Approved in Muskogee Land Co. v. Blackburn, 20 Okl. 807, 95 Pac. 253,
following rule; Dickson v. First Nat. Bank, 11 Colo. App. 156, 52 Pac.
746, holding where appellate court reversed judgment for lack of evidence
and sent case back, it was error for lower court to dismiss without trial;
Johnson v. Keith, 117 U. S. 199, 29 L. Ed. 888, 6 Sup. Ct. 669, holding
judgment of reversal in State court, containing order for retrial, is not
a final judgment; Union etc. Ins. Co. v. K^rchoff, 160 U. S. 378, 40
L. Ed. 463, 16 Sup. Gt. ^0, holding judgment not final, where case
was remanded for further judicial proceeding in conformity with opinion
of appellate court; Hart v. Burnett, 20 Cal. 172, holding judgment of
821 NOTES ON U. S. REPORTS. 3 Wheat. 436-463
rexersal directing a new trial is not a final judgment ; Carter v. Buchana^
2 ua. 340, holding writ of eiror does not lie for errors in lower court, while
appeal is pending; Dickson- v. First Nat. Bank, 62 Pac. 746, holding gen-
eral reversal will not justify trial court in dismissing an intervention which
was the basis of the issues at the first triaL
Denied in Jackson v. Walker, 6 Hill, 262, holding writ of error lies upon
judgment of reversal awarding a venire de novo.
Power of appellate court to award costs on dismissal of appeal for
want of jurisdiction. Note, 13 Ann. Gas. 1048.
Costs are not given where writ of error is dismissed for want of Jurisdic-
tion.
Rule applied in Bumham v. Rangeley, 2 Wood. & M. 421, Fed. Cas. 2177.
3 Wheat. 435-449, 4 Ii. Ed. 428» THE ANNE.
Capture in neutral territory is good as between the belligerents, and can
be questioned only by the neutral State.
Approved in The Florida, 101 U. S. 42, 25 L. Ed. 899, following rule ; iThe
Parkhill, 18 Fed. Cas. Ild3, holding no resident of hostile territory can
sustain claim of restitution for naval capture; United States v. One, etc.
Barrels, 27 Fed. Cas. 294, holding alien enemy cannot sue in courts of bel-
ligerent captors; Perkins v. Rogers, 35 Ind. 145, 9 Am. Rep. 655, holding
alien enemy cannot sue in courts of belligerent power; United States v.
Wren, 28 Fed. Cas. 788, arguendo.
Consul is mere commercial agent, and unless expressly authorized, is not
invested with a diidomatic character.
Approved in Von Thodorovich v. Franz Josef Beneficial Assn., 164 Fed.
912, holding consul of Austria could not sue on behalf of personal rights
of Emperor to enjoin use of Emperor's name by beneficial association ;
In re Baiz, 135 U. S. 424, 34 L. Ed. 229, 10 Sup. Ct. 860, holding consul-
general not privileged from immunity of suit; Ship Adolph and Cai^,
1 Curt. 89, Fed. Cas. *86, holding foreign consul can petition to have
proceeds of sale of property libeled paid into registry, where his country-
men are interested ; In re lasigi, 79 Fed. 752, holding consul not exempt
from criminal prosecution; Seidel v. Peschaw, 27 N. J. L. 429, holding
consul has authority to administer an oath. Cited in United States v.
Wong Kim Ark, 169 U. S. 679, 42 L. Ed. 901, 18 Sup. Ct. 468, as to distinc-
tion between minister and consul.
Jurisdiction and powers of consuls. Note, 45 L. R. A. 496, 497.
«
8 Wheat. 449-463, 4 Zi. Ed. 432, BROWN v. JACKSON.
Deed executed after, but recorded ^before another, takes priority.
Cited in Tucker v. Harris, 13 Ga. 6, 58 Am. Dec. 490, holding rule appli-
cable to purchaser at administrator's sale.
Deed conveying *'right, title, and interest," passes only ex) sting interest
and does not take precedence over prior unrecorded deed.
Approved in Hanrick v. Patrick, 119 U. S. 176, 30 L. Ed. 406, 7 Sup. Ct.
1^7, holding covenant of general warranty does not estop grantor from
3 Wheat. 449-453 NOTES ON U. S. REPORTS. 822
1
asserting subsequently acquired title; Ashcroft v. Walworth, 1 HolmeSy
155, Fed. Cas. 580, holding same as to assignment of patent; dissenting
opinion in United States v. California & O. L. Co., 4Sf Fed. 504, 7 U. S.
A pp. 128, majority holding that under deed, not a mere quitclaim, grantee
could only rely upon plea of innocent purchaser; McClaskey v. Barr, 50
Fed. 718, holding quitclaim deed conveying interest in litigation, did con-
vey an interest derived from an extraneous devise; Bagley v. Fletcher,
44 Ark. 160, quitclaim deed passes all of grantor's interest; Allison v.
Thoftias, 72 Cal. 564, 1 Ahl St. Rep. 90, 14 Pac. 310, holding grantee of
quitclaim deed takes grantor's interest subject to equities; Gress v. Evans,
1 Dak. Ter. 384, 46 N. W. 1134, that grantee of quitclaim deed cannot
be regarded as a bona fide purchaser, without notice ; Doe v. Reed, 4 Spam.
121, 122, 38 Am. Dec. 127, 128, holding quitclaim does not operate on
land previously conveyed; Butterfield v. Smith, 11 111. 487, holding quit-
claim deed conveys effectually grantor's interest, but grantee is bound
by its limitations; Hamilton v. Doolittle, 37 111. 483, holding quitclaim
deed does not pass lands embraced in prior unrecorded deed; Rogers v.
Chase, 89 Iowa, 474, 56 N. W. 539, holding deed was in effect a quitclaim
deed and passed only such interest as grantor had; Ballard v. Child, 46
Me. 154, holding grantor not liable on covenants, though he had previ-
ously conveyed, where he grants his "right, title and interest"; Blanchard
V. Brooks, 12 Pick. 67, holding warranty did not estop grantor fromf
claiming contingent interest ; Wight v. Shaw, 5 Cush. 64, holding quitclaim
did not pass interest subsequently acquired by death of tenants in com-
mon; Jackson v. Allen, 120 Mass. 79, holding patentee, not describipg
himself as inventor, in action f o^ damages, is not estopped to show patent
invalid; Woodward v. Sartwell, 129 Mass. 217, declaring an unrecorded
reconveyance to grantor not good against creditor without notice; Fits-
gerald v. Libby, 142 Mass. 239, 7 N. E. 919, holding mortgage did not paaa
lands previously conveyed by unrecorded deed; Hope v. Stone, 10 Minn.
152, holding recorded quitclaim deed will not affect a previous nnreeorded
deed; Bogy v. Shoab, 13 Mo. 380, holding quitcUim deed will not pass
title subsequently acquired by grantor; as also in Valle v.- Clemens, 18
Mo. 490, where deed contains words "in possession and in expectancy";
McCamant v. Patterson, 39 Mo. Ill, holding where grantor had no inter-
est, nothing passed; Ridgeway v. Holliday, 59 Mo. 455, holding grantee
of quitclaim deed not a bona fide purchaser; Mann v. Best, 62 Mo. 497,
holding purchaser by quitclaim takes subject to equities; Ford v. Unity
Church Society, 120 Mo. 509, 41 Am. St. Rep. 717, 25 S. W. 397, holding
a recorded deed by one without title, but afterward acquiring it by re-
corded deed, is not constructive notice to subsequent bona fide purchaser;
Wihite V. Brocaw, 14 Ohio St. 344, holding deed conveying "right, title and
interest," containing general warranty, does not extend to an after-ac-
quired title; American Mort. Co. v. Hutchinson, 19 Or. 343, 24 Pac. 518,
holding grantee of quitclaim deed not a bona fide purchaser; Rosenbaum
v. Foss, 7 S. D. 91, 63 N. W. 540, second chattel mortgage of all his "right,
title and interest," was not of same rights previously mortgaged; Burleson
V. Burleson, 28 Tex. 414, holding when deed conveys grantor's interest,
/
823 EVANS v. EATON. 3 Wheat. 454-519
parol evidence admissible to prove what that interest is; Cnnunings v.
Dearborn, 56 Vt. 443, holding deed there to be a quitclaim deed; Ellison
V. Torpin, 44 W. Va. 432, 446, arguendo.
Distinguished in Boynton v. Haggart, 120 Fed. 822, holding registry
statutes are available to purchase under quitclaim deed ; Harpham v. Little,
59 111. 512, holding decree passes entire title without regard to prior un-
recorded deed.
Criticised in Dunfee v. Childs, 59 W. Va. 240, 53 S. E. 219, holding one
claiming under quitclaim deed could set up defense of bona, fide purchaser ;
dissenting opinionMn Fowler v. Will, 19 S. D. 137, 117 Am. St. Bep. 938,
8 Ann. Cas. 1098, 102 N. W. 600, majority following rule. \
Effect of quitclaim deed on prior unrecorded deed. Note, 25 Am. Dec
165.
Quitclaim deeds. Note, 105 Am. St. Rep. 862.
Construction and effect of covenant in deed conveying right, title and
interest in premises. Note, 15 Ann. Caa. 1200.
3 Wheat. 454-519, 4 I«. Ed. 433, EVANS v. EATON.
In patent cases defendant may plead specially^ without notice miftter which
could be offered under general issue only with notice.
Approved in Day v. New England Car Spring Co., 3 Blatchf. 181, Fed.
Cas. 3687, refusing to strike out special pleas; Read v. Miller, 2 Biss. 16,
Ped. Cas. 11,610, holding defendant cannot specially plefid the same matter
set up under general issue; Hubbell v. Deland, 11 Biss. 386, 14 Fed. 473,
474, holding invalidity of reissue proper matter for special plea; Cottier
V. Stimson, 9 Sawy. 438, 18 Fed. 691, holding special pleas may be pleaded
with the general issue; Brickell v. Hartford, 57 Fed. 217, holding, al-
though general issue has been pleaded, a special plea that it is not an
invention is good.
Evidence that persons of whose prior use defendant had given evidence
had bou^t license from patentee, is admissible.
Cited in Adams v. Smith, 2 N. H. 388, holding possession of defendant
and his subleasing, furnish presumptive evidence of an assignment.
Query, whether improvements on different machines can be comprehended
in same patent so as to give right to exdualve use of several madiines sepa-
rately and in combination.
Approved in Sanders v. Hancock, 128 Fed. 433, holding Hardy patent
No. 556,972, claim 2, for improvements in rotary disk plows, valid and in-
fringed ; Emerson v. Hogg, 2 Blatchf. 7, Fed. . Cas. 4440, holding separate
machines may be embraced in one patent ; Barrett v. Hall, 1 Mason, 475,
Fed. Cas. 1047, holding one patent cannot embrace an exclusive right in
the combination and in each of the machines; Wyeth v. Stone, 1 Story,
288, Fed. Cas. 18,107, holding a single patent cannot be taken for two
distinct machines not conducing to a common object; Pettibone v. Der-
ringer, 4 Wash. 217, FSd. Cas. 11,043, holding patent extends to auger
3 Wheat. 464-519 NOTES ON U. S. REPORTS. 824
described in specification and not to the method of using it ; The Fire Ex-
tinguisher Case, 21 Fed. 44, holding the several claims could be com-
bined in one patent ; Sessions v. Romadka, 21 Fed. 132, holding unconnected
inventions cannot be embraced under one patent; Wilkins etc. Co. v. Wabb,
89 Fed. 985, 986, 989, holding wrongful use of part of invention constitutes
infringement; Olcott v. HawkinB, 18 Fed. Cas. 640, where patent is of a
combination, patentee not entitled to remedy unless combination is vio-
lated ; Parham v. Amer. Buttonhole etc., 18 Fed. Cas.* 1099, holding if de-
scription indicates method of use, a claim for a combination part of the
mechanical elements of operation is good; Steams v. Barrett, 1 Pick. 448,
11 Am. Dec. 225, if existing patent is void, separate patents for each
machine may be procured. '
Patents construed liberally so as to give to grant its foil effect.
Cited in Goodyear v. Providence Rubber Co., 2 Cliff. 373, Fed. Cas. 5583,
and Carew v. Boston Elastic Fabric Co., 3 Cliff. 364, Fed. Cas. 2397, hold-
ing court will so construe patent as to render it available for the purpose
for which it was granted; Burke v. Partridge, 68 N. H. 351, holding that
the nature and scope of a patented invention are to be ascertained from
the entire instrument.
Courts never presume Ckmgress to have decided question of patent rlgtits
in general act, words of which do not render such construction unavoidable.
Approved in United States v. Duell, 17 App. D. C. 578, holding commis-
sioner of patents could assign to assistant duty of hearing appeal in inter-
ference proceeding, under authority of act creating such assistant, though
act of $661 provided commissioner should hear appeals in person; Camp-
bell's Case, 2 Bland Ch. 232, 20 Am. Dec. 373, holding general assembly
can exercise no arbitrary power over the rights or property of an in-
dividual. '
If thing had been in use previously, patent is void, whether patentee had
knowledge or not.
Approved in Benthall Mach. Co. v. National Mach. Corporation, 222
F^d. 931, holding patent void for anticipation by prior use; Whitney v.
Emmett, 1 Bald. 309, Fed. Cas. 17,585, holding this prior use relates to
time of application; Thomas, v. Weeks, 2 Paine^lOO, Fed. Caa. 13^14, hold-
ing if idea of principle was suggested by anpther, applicant cannot claim
to be the sole inventor; Reed v. Cutter, 1 Story, 597, Fed, Cas. 11,645,
holding applicant must be first inventor; Holliday v. Rheem, 18 Pa. St. 469,
57 Am. Dec. 629, if anything be included in the patent which is not new,
it is void; Hyatt v. Twomey, 1 Dev. & B. Eq. 317, arguendo.
Distinguished in Holden v. Curtis^ 2 N. H. 64, holding patent is not void
because elementary principles were in prior use.
Grant of exclusive use of an Improvement In a machine grabts both Im-
provement and machine.
Cited in Whitney v. Emmett, Bald. 312, 314, Fed. Cas. 17,585, arguendo.
825 . LENOX v. PROUT. 3 Wheat. 620-^28
A gpecial act of Confess for tbe relief of O. E. is to be deemed engrafted
on general law as to patents.
Approved in Walker v. Globe Newspaper Co., 140 Fed. 312, right to main-
tain action at law for damages for infringement of copyright is not im-
pliedly taken away by Rev. Stats., §§ 4965, 4970; Bloomer v. McQuewan, 14
How. 548, 550, 561, 14 L. £d. 537, 542, holding special act of Congress ex-
tending time of patentee mnst be coiisidered as engrafted on the general law.
Distinguished in Fire Extinguisher Mfg. Co. v. Graham, 16 Fed. 552,
holding special law extending patent is not engrafted on general law
for purpose of changing rights conferred by Congress by it, or of enlarg-
ing or restricting its import.
One daimlng Improvement on maeUne must sliow its extent tn an intelli-
gent manner. /
Approved in Evans v. Hettich, 7 Wheat. 459, 462, 463, 464, 465, 5 L. Ed.
498, 499, refusing to support patent for an improvement; Hogg v. Emer-
son, 6 How. 484, 12 L. Ed. 525, holding patent for improvement to be suffi-
ciently clear and certain ; Evans v. Hettick, 3 Wash. 425, 427, 429, 430, 431,
Fed. Cas. 4562, even where he is also inventor of the machine itself;
Evans v. Eaton, 3 Wash; 449, 455, Fed. Cas. 45^0, holding nature of im-
provement must be stated in the specification; Hovey v. Stevens, 3 Wood.
& M. 27, Fed. Cas. 6746, and Tyler v. Deval, 24 Fed. Cas. 464, to same
effect as principal case; Cross v. Huntley, 13 Wend. 386, holding defect in
description avoids Wote given for patent; Whitney v. Emmett, Bald. 322,
Fed. Cas. 17,585, following rule.
Miscellaneous. Cited in Evans v. Eaton, 7 Wheat. 424, 5 L. Ed. 489;
Evans v. Hettick, 3 Wash. 413, Fed. Cas. 4562 ; The Fire Extinguisher Case,
21 Fed. 42, 43, as an instance of special act of Congress for relief of in-
ventor; Pruseux v. Welch, 20 Fed. Cas. 26; Morris v. Sargent, 18 Iowa,
105, and Blanchard v, Sprague, 2 Story, 171, 3 Sumn. 541, Fed. Cas. 1518,
apparently not in point.
S Wheat. 520-528, 4 Ii. Ed. 449, LENOX v. PBOUT.
Indorser duly notified of the default of the maker is not discharge by
holder's omission to issue execution against maker.
Cited in dissenting opinion in Toomer v. Dickerson, 37 Ga. 46;2, majority
holding failure of creditor to record mortgage discharges surety; Naylor v.
Moody, 3 Blackf. (Ind.) 95, holding mere delay of creditor to proceed does
not discharge surety; Page v. Webster, 15 Me. 256, 33 Am. Dec. 611, hold-
ing indorser not dischai^ed by neglect of holder to commence suit at his
request ; Clagett v. Salmon, 5 Gill & J. 327, affirming 3 Bland Ch. 174, hold-
ing, if creditor increases risk of surety, he is discharged; as also Watkins
V. Worthington, 2 Bland Ch. 529, 531, to same effect; Freaner v. Yingling,
37 Md. 500, holding neglect of mortgagee to possess himself of goods
embraced in mortgage does not discharge surety; Warner v. Beardsley, 8 ^
3 Wheat. 520-628 NOTES ON U. S. REPORTS. 826
Wend. 198, holding to discharge surety because oi omission of creditor to
sue, principal must have been solvent at time of request to sue.
Release of indorser of note by failure to enforce liability of maker.
Note, 18 L. R. A. (N. S.) 637.
Surety, after Judgment, becomes a principal debtor.
Cited in Ross v. Jones, 22 Wall. 593; 22 L. Ed. 735, holding indorser o£
promissory note not a "person bound as security" within statute; Findlay
. v. Bank, 2 McLean, 53, Fed. Cas. 4791, holding judgment merges relation
of principal and surety ; as also in King v. Thompson, 3 Cr. C. C. 147, Fed.
Cas. 7807; McNutt v. Wilcox, 1 Freem. Ch. 118, holding after holder has
fixed accommodation indorser with notice and proceeded against hin% to
judgment, he becomes a principal; La Farge v. Herter, 3 Denio, 159, hold-
ing after creditor recovers judgment against principal and surety, they
are both principal debtors; Marshall v. Aiken, 25 Vt. 335, holding after
judgment no defense growing out of relation of principal and surety exist-
ing prior to judgment may be set up; In re Goodwin, 6 Dill. 142, Fed. Cas.
5549, as nearest approach to deciding whether an accommodation maker is
principal debtor; Creath v. Sims, 6 How. 206, 12 L. Ed. 118; Mason v.
Jones, 16 Fed. Cas. 1043 ; Commonwealth v. Haas, 16 Serg. & R. 252, and
Bank v. Good, 21 W. Va. 467, all arguendo. -
Distinguished in In re Kitzinger, 19 Bank. Reg. 152, 14 Fed. Cas. 711;
Carpenter v. Devon, 6 Ala. 723 ; Davis v. Mikell, 1 Freem. Ch. 570 ; Western
R. Bank v. Bank, 11 Ohio, 448, 38 Am. Dec. 740, and IRice v. Morton, 19
Mo. 285, holding relation of principal and surety continues after judgment ;
Delaplaine v. Hitchcock, 4 Edw. Ch. 329, holding after judgment surety's
right of subrogation continues. Denied in Manuf. & M. B. v. Bank, 7
Watts & S. 342, 42 Am. Dec. 243, 244, holding agreement for the extension
of time of payment of a promissory note made by the holder after judg-
ment had been recovered against the maker and indorser, discharges the
judgment against the latter; Beebe v. Bank, 7 Watts So S. 376, holding
judgment does not make indorser a principal.
Extinction of judgments against principals by sureties' payment.
Note, 68 L. R. A. 562, 585.
By Maryland statute Indorser can pay note and be subrogated to rights of
holder.
Approved in Fuhrman v. Fuhrman, 115 Md. 442, 80 Atl. 1084, holding
surety on paying debt became subrogated to creditors' securities;
Cited in Cheever v. Mirrick, 2 N. H. 378, holding if attorney take
sheriff's note for amount of execution without agreeing it shall be pay-
ment, creditor can still cause debtor to be taken on an alias execution ;
Ward V. Tyler, 52 Pa. St. 398, holding indorser paying note is entitled to
subrogation to judgment against maker.
Answer of defendant, uncontradicted, Is concluslye proof against the com-
% plainant.
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
827 NOTES ON U. S. REPORTS. 3 Wheat. 529-645
purchase price; Tilghman v. Tilghman, Bald. 491, 495, Fed. Gas. 14,445,
holding party must rely on case stated in his bill or answer; Clark v.
Hackett, 1 Cliff. 278, Fed. Cas. 2823, holding answer denying bill can only
be overcome by testimony of two witnesses, or of ofie witness and cor-
roborating circumstances; as also in Cummins v. Harrell, 6 Ark. 315;
Ruckersville Bank v. H^nphill, 7 Ga. 412, no decree can be rendered in
favor of complainant, where only bill and answer denying it are sub-
mitted; Brown v. Welch, 18 111. 346, 68 Am. Dec. 550, holding answer set-
ting up matter not in bill is not evidence against plaintiff ;' Price v. Tyson,
3 Bland Ch. 406, 22 Am. Dec. 291, even if party be incompetent to testify
to the facts as a witness; Neale v. Hagthrop, 3 Blitnd Ch. Q67, holding an-
swer conclusive so far as responsive to the bill; Martin v. Martin, 13 Mo.
64, holding denial in answer must be taken as true unless controverted by
two witnesses, or one and corroborating circumstances; Heatherly v.
Hadley, 4 Or. 19, declaring that proof and ' bill must conform ; Wise v.
Lamb, 9 Gratt. 300, holding answer denying bill, not being controverted,
the injunction should be dismissed; Boone v. Chiles, 10 Pet. 209, 211, 9 L.
Ed. 399, 400, holding allegata and probata must correspond.
Distinguished in Byers v. Fowler, 12 Ark. 286, 288, 54 Am. Dec. 287, 289,
holding answer not responsive, is not evidence against plaintiff.
Injunction against judgment for matters subsequent to rendition.
Note, SO L. B. A. 568.
Miscellaneous. Cited incidentally in Clark v. Schwing, 1 Dana (Ky.),
337.
3 Wlieat. 529-540, 4 I«. Ed. 452, BURTON v. WILUAMS.
State cannot issue grants for lands within another State upon entries made
1>ef ore cession of this territory.
Approved in Moss v. Gibbs, 10 Heisk. 287, holding such grant a nullity.
Miscellaneous. Cited in Pollard v. Kibbe, 14 Pet. 413, 10 L. JBd. 519,
as having construed compact between States so as to carry out the inten-
tion of the parties; Rhode Island v. Massachusetts, 12 Pet. 725, 745, 9
L. Ed. 1261, 1268, that the construction of a compact is a judicial question.
3 Wheat. 541-545, 4 L. Ed. 454, MUBBAT V. BAKBR.
"Beyond seas" Is equivalent to without limits of the State.
Approved in State v. Brodigan, 37 Nev. 257, 141 Pac. 992, in construing
statute dividing State into judicial districts, general purpose of statute and
conditions of State should be considered; Jamieson v. Potts, 55 Or. 298, 25
L. B. A. (N. S.) 24, 105 Pac. 95, holding defendant was "without State"
so as to halt limitations on note when he made occasional visits to State;
Osgood V. Central Vermont Ry. Co., 77 Vt. 339, 70 L. R. A. 930, 60 Atl.
138, arguendo ; Shelby v. Guy, 11 Wheat. 366, 6 L. Ed. 496, following rule ;
Smith V. Bond, 8 Ala. 390, holding party must have been within jurisdic-
tion of State during the entire period; Hatch v. Spofford, 24 Conn. 441,
holding exception, "party without State," applies where cause arose in
3 Wheat. 646-663 NOTES ON U. S. REPORTS. 828
another State, within which both parties were residing; Keech v. Enriqnez,
28 Fla. 610, 10 South. 92, holding exception inures to foreigners constantly
abroad, as well as residents temporarily absent; Denham v. Hollman, 26
Ga. 192, 71 Am. Dec. 202, holding ''beyond the seas" means without the
State; Stephenson v. Wait, 8 Blackf. (Ind.) 614, 46 Am. Dec. 495, constru-
ing phrase the same, notwithstanding a statute passed while suit was
pending defines such words as beyond the jurisdiction of Federal courts;
Paine v. Drew, 44 N. H. 314, and Estis v. Rawlins, 5 How. (Miss.) 266,
holding exception applies to persons who have never been in th& State;
Galusha v. Cobleigh, 13 N. H. 86, holding "beyond sea" means without
the limits of the State; Richardson v. Richardson, 6 Ohio, 126, 25 Am.
Dec. '746, holding "beyond seas" is equivalent to beyond the State; as also
in West v. Pickesimer, 7 Ohio (pt. II), 236, and Forbe v. Foot, 2 McCord,
333, 13 Am. Dec. 733, to same effect ; dissenting opinion in Snoddy v. Cage,
6 Tex. 117, majority holding where debt is contracted in another country
by person after coming to this State, statute is not suspended until his
arrival; Green v. Neal, 6 Pet. 300, 8 L. Ed. 406, but following State court's
construction of statute ; as also in Davie v. Briggs, 97 U. S. 637, 638, 24 L.
Ed. 1089, 1090, term "beyond the sieas" in North Carolina statute means
without the United States; Minnesota v. Johnson, 12 Minn. 479, 93 Am.
Dec. 244; Ward v. Hallam, 1 Yeates, 331, arguendo.
Cited as an instance of case where intent controlled langCi^i^e of statute
in following cases consti*uing various statutes; United States v. Dustin, 25
Fed. Cas. 949; Institute v. Henderson, 18 Colo. 106; Shellaimrger v. Com-
missioners, 60 Kan. 141, 32 Pac. 133; Gray v. Commissioners, 83 Me. 436,
22 Atl. 377 ; In re Railroad Com., 87 Me. 264 ; Wadsworth v. Marshall, 88
Me. 269, 34 Atl. 31, and Taylor v. Taylor, 10 Minn. 120.
Distinguished in Campbell v. Rankin^ 11 Me. 106, construing phrase
"beyond sea" in penal act forbidding transportation of minors to mean
to some foreign port.
Denied in Earle v. McDowell, 1 Dev. 17, and State v. Harris, 71 N. C.
176, holding residence in another State is not "beyond seas"; as also in
Thurston v. Fisher, 9 Sei^. & R. 292, and Pike v. Greene, 1 Yerg. 468.
Meaning of "beyond seas." Note, 13 Am. Dec. 733.
What constitutes absence from State to stop limitations. Note, 83
Am. /Dec. 645.
3 Wheat. 546-5^, 4 L. Ed. 456, THE AMIABLE NANCY.
District Courts have Jurisdiction of question of prise independent of act
of 1812.
Approved in The Paquete Habana, 175 U. S. 680, 44 L. Ed. 321^0 Sup.
Ct. 292, holding under act March 3, 1891, chapter 517, Supreme Court has
prize jurisdiction without regard to amount in dispute ; Pieces of Mahogany,
2 Low. 324, Fed. Cas. 4845, hdlding admiralty has jurisdiction over goods
wrongfully taken at sea in whosoever's possession they may be, and owner
may bring action in rem ; Hallett v. Lamoth, 3 Murph. (N. C.) 297, admir-
alty has exclusive jurisdiction of prize cases.
Admiralty jurisdiction in tort. Note, 13 Ann. Cas. 1222,
i
829 THE AMIABLE NANCY. 3 Wheat. 646-663
Actual wrongdoers In marine trespass are responsible for exemplary dam-
ages bnt not absent owners.
Approved in The Seven Brothers, 170 Fed. 127, following rule; Memphis
Tel. Co. V. Cumberland Tel. & Tel. Cq., 231 Fed. 842, holding cutting of
telephone wires by agent under mistake as to instructions not ground for
punitive damages ; Norfolk & P. Traction Co. v. Miller, 174 Fed. 609, 98
C. C. A. 453, holding railroad not liable in punitive damages for malicious
conduct of agent, not ratified by railroad, causing plaintiff's injury; Pacific
Packing etc. Co. v. Fielding, 136 Fed. 579, 580, 69 C. C. A. 325, corpora-
tion owner of vessel is not liable in punitive damages because of malicious
action of master in imprisoning sailor while at sea, which was not author-
ized nor«ratified by corporation; Woodward v. Ragland, 5 App. D. C. 229,
holding employer not liable for unauthorized malicious arrest made by
detective in his employ; Craven v., Bloomingdale, 171 N. Y. 447, 64 N. E.
171, upon question of master's liability for exemplary damages for acts of
servant; Stewart v. Cary Lumber Co., 146 N. C. 54, 59 S. E. 548, holding
railroad not liable for exemplary damages for injury caused by wanton
conduct of engineer in blowing whistle to frighten plaintifiF's mule; Barry
v. Edmunds, 116 U. S. 563, 29 L. Ed. 733, 6 Sup. Ct. 508, holding exemplary
damages may ba awarded in malicious trespass; Lake Shore etc. Ry. v.
Prentice, 147 U. S. 107, 108, S7 L. Ed. 108, 13 Sup. Ct. 263, refusing to give
exemplary damages against railroad when conductor, without authority,
wantonly arrested passenger; Ralston v. The State Rights, Crabbe, 48, Fed.
Cas. 11,540, holding in case of malicious collision exemplary damages may
be given; McGuire v. Steamship Golden Gate, McAU. 109, Fed. Cas. 8815,
holding owners of ship not subject to punitive damages, being innocent of
participation in the tort; Lienkauf v. Morris, 66 Ala. 416, holding Indem-
nitors not liable for exemplary damages for unauthorized and wanton exe-
cution of levy; Wardrobe v. Cal. Stage Co., 7 Cal. 120, 68 Am. Dec. 232,
holding principal not liable for exemplary damages when his servant was
driving; Warner v. Southern Pac. Co., 113 Cal. 115, 45 Pac. 190, holding
railroad company not liable for exemplary damages for malicious act of
conductor; Grund v. Van Vleck, 69 111. 481, where person becomes liable
only through subsequent ratification, he is not liable for vindictive dam-
ages ; Black v. Railroad Co., 10 La. Ann. 39, holding parent cannot recover
vindictive damages for injury to child ; Rouse v. Metr. St. Ry. Co., 41 Mo.
App. 308, holding carrier not liable for exemplary damages for injury
done by conductor without being authorized; Sinclair v. Tarbox, 2 N. H.
137, allowing only actual damage where wrongdoer was not actuated by
any bad motive; Taylor v. Church, 8 N. Y. 463, holding jury may give
v'ndictive damages in libel cases; dissenting opinion in Atlantic & G. W.
Ry. Co. V. Dunn, 19 Ohio St. 593, majority holding corporation liable for
punitive damages for acts of servant, where natural persons acting for
themselves would be so liable; Hays v. Railroad Co., 46 Tex^ 282, holding
exemplary damages will be allowed against railroad company only if it is
guilty of malice or oppression; Pegram v. Storty, 31 W. Va. 245, 6 S. E.
498, holding wife in action for sale of liquor to husband cannot recover
exemplary damages; Mayer v. Frobe, 40 W. Va. 250, 22 S. E. 59, overrul-
/
3 Wheat. 646-563 NOTES ON U. S. REPORTS. 830
ing above ease and holding in malicious torts exemplary damages may be
recovered.
Distinguished in The William H. Bailey, 103 Fed. 800, holding exemplary
damages are not recoverable in rem for marine torts ; Hopkins v. Railroad
Co., 36 N. H. 19, 72 Am. Dec. 293, holding jury may give exemplary dam-
ages for injury caused by gross carelessness in the management of trains;
Palmer v. Railroad Co., 3 S. C. 599, 16 Am. Rep. 761, holding corporation
liable for exemplary damages for misconduct of agent ; Lombard v. Batch-
elder, 58 Vt. 560, 5 Atl. 512, allowing exemplary damages against husband
for malicious trespass of wife, though he was without blame.
Liability of carriers for punitive damages for willful misconduct of
servants. Note, 2 Am. Rep. 54. * ^
' Liability of j)rincipal or master in exemplary" damages for act of
agent or servant. Note, 62 Am. Dec. 885.
Liability to exemplary damages for servant's act. Note, 48 L. R. A.
(N. S.) 40, 45.
Owners of privateers are liable for acts of crew In plundering neutral
▼essels.
Cited in The Albany, 44 Fed. 435, holding owners of tug for goods em-
bezzled by officers and crew; Mendell v. The Martin White, 17 Fed. Cas.
3, holding admiralty has jurisdiction of suit in rem for damages for in-
juries caused by collision; The Mulhouse, 17 Fed. Cas. 967, holding owner
of salvor vessel liable for losses caused by his crew; Price v. Thornton, 10
Mo. 138, holding owner of steamboat is liable for slave lost by captain.
Civil liability for wrongful or negligent act of servant or agent toward
one not sustaining contractual relation. Note, 27 L. R. A. 184.
Damages is prime cost of value of property lost, and in case of injury dimi-
nution in value, by reason of injury, with interest thereon.
Approved in The Hamilton, 95 Fed. 845, holding where ship is total loss
as result of collision, measure of damages is her value with interest ; Palmer
V. Augenstein, 18 App. D. C. 513, holding damages for unlawful seizure
without oppression was market value when seized less market value on re-
turn; Carscallen v. Coeur D'Alene etc. Transp. Co., 15 Ida. 457, 16 Ann.
Gas. 544, 98 Pac. 626, holding average net earnings during period of re-
pair properly allowed as damages for injury to pile-driver; Pacific Ins. Co.
y. Conrad, 1 Bald. 144, Fed. Cas. 10,647, allowing value of goods, with inter-
est from time of taking, to holder of goods under respondentia bond, against
person taking them unlawfully ; The Mary J. Vaughn etc., 2 Ben. 50, Fed.
Cas. 9217, holding measure of damages for loss of cargo in collision to be
value at time and place of shipment; The Steamship Aleppo, 7 Ben. 127,
Fed. Cas. 158, allowing also charges and insurance; Boston Mfg. Co. v.
Fiske, 2 Mason, 122, Fed. Cas. 1681, holding jury may, in case for in-
fringing a patent, allow counsel fees as "actual damage"; The Steamboat
New Jersey, 01c. 446, Fed. Cas. 10,162, holding in case of total loss in
collision, damages is market value at that time ; Pope v. Nickerson, 3 Story,
474, Fed. Cas. 11,274, holding liability of owner for tort of master is lim-
831 THE AMIABLE NANCT. 3 Wheat. 546-663
ited to value of vessel and freight; Dyer v. Navigation Co., 14 Blatchf.
489, Fed. Oas. 4225, holding where cargo has no fixed value at place of
shipment, the value at nearest export market is to he used as a hasis;
McAlpin V. Lee, 12 Conn. 133, 30 Am. Dec. 610, allowing difference between
contract price and value of property sold ; The Harriet New Hall, 3 Ware,
107, Fed. Cas. 6102, following rule.
Distinguished in Switzer v. Connett, 11 Mo. 90, holding agent respon-
sible for full loss occasioned by his violation of duty.
Interest onr unliquidated damages. Note, 28 L. E. A. (N. S.) 9, 10.
Interest on sum allowed as damages. No^e, 18 L. R. A. 453, 457.
Prospective profits cannot be made an item of damages for marine tort.
Approved in Winston Cigarette Machine Co. v. Wells- Whitehead Tobacco
Co., 141 N. C. 295, 8 L. R. A. (N. S.) 255, 53 S. E. 889, holding speculative
profits not recoverable as damages for breach of contract to exhibit machine
at exposition ; Choctaw etc. R. #R. Co. v. Jacobs, 15 'Okl. 500, 82 Pac. 504,
applying rule in action against railroad for delay in delivery of freight;
Tootle V, Kent, 12 Okl. 391, 73 Pac. 315, applying rule to probable loss of
profits to merchant whose store closed by reason of fraudulent chattel
mortgage ; Hagan v. Nashville Trust Co., 124 Tenn. 99, 136 S. W. 994, hold-
ing lost profi^^s properly allowed on breach of contract to sell realty where
sales were made by others within time of contract; La Amistad de Rues,
5 Wheat. 389, 5 L. Ed. 116, under similar facts ; dissenting opinion in Will-
iamson V. Barrett, 13 How. 113, 14 L. £d. 75, majority allowing damages
for loss of use of vessel while being refitted; The Scotland, 105 U. S. 36,
26 L. Ed. 1005, refusing to allow for anticipated profits; Howard v. Still-
well, 139 U. S. 206, 35 L. Ed. 150, 11 Sup. Ct. 503, not allowing damages
for anticipated profits because of delay in putting up mill machinery;
Cincinnati etc. Gas Co. v. Western etc. Co., 152 U. S. 206, 88 L. Ed. 418,
14 Sup. Ct. 525, in action to recover contract price of goods delivered
under assignment of patent right, assignee was not allowed to claim dam-
ages for loss of profits resulting from assignor's competition ; The Umbria,
166 U. S. "422, 41 L. Ed. 1062, 17 Sup. Ct. 617, rejecting estimated profits
of charter-party not yet entered into ;• The Ship Nathaniel Hooper, 3 Sumn.
553, Fed. Cas. 10,032, refusing to allow for profits in case of salvage ; The
George Bell, 5 Hughes, 175, 3 Fed. 584, holding in case of total loss, prob-
able earnings cannot be considered in estimating damages; The Alice, 12
Fed. 502, allowing value of goods at place of shjipment in action for not
carrying goods to destination ; City of Alexandria, 40 Fed. 700, refusing to
allow for loss of profits on personal contract in which other fit vessel might
be used ; The North Star, 44 Fed. 495, 496, holding measure of damages for
total loss of vessel is its value, interest, and net profits of particular voyage,
but not of a charter unperformed ; Fabre v. Cunard Steamship Co., 53 Fed.
293, 1 U. S. App. 614, refusing to allow for profits of subsequent voyage
for which vessel was engaged; La Champagne, 53 Fed. 400, where owners
of vessel damaged by collision elect to sell, they cannot recover demurrage ;
McDaniel v. Crabtree, 21 Ark. 436, not allowing for profits, where n^roes
were taken by order of chancery; The C. F. Man. Co. v. Rogers, 19 Ga.
I
3 Wheat. 563-591 NOTES ON U. S. REPORTS. 832
421, 65 Am. Dec. 606, refusing to allow for prospective profits in breach
of contract case; Western Gravel R. R. Co. v. Cox, 39 Ind. 264, counter-
claim for "loss of toll," becauise of failure to complete road struck out;
dissenting opinion in Bouldin v. Alexander, 7 T. B. Mon. 430, majority
holding remedy for property seized under execution is at law ; Blanchard v.
Ely, 21 Wend. 349, 34 Am. Dec. 266, "loss of profits" occasioned by defects
in machinery cannot be set up in action for price; GriflBn v. Colver, 16
N. Y. 492, 69 Am. Dec. 720, allowing damages for loss of immediate and
certain profits; Cincinnati v. Evans, 5 Ohio St. 604, holding in action for
injury of building, lps3 pf profits not a proper item of damage.
Distinguished in Illinois Central R. R. Co. v. Davidson, 76 Fed. 522, 46
U. S. App. 300, allowing defendant in tort for personal injury, for loss of
what he would have earned ; Heineman v. Heard, 50 N. Y. 37, holding loss
of profits within contemplation of -parties, and not speculative, may be
recovered.
Prospective profits as element of recovery for total loss of vessel by
collision. Note, 6 Ann. Cas. 131.
Lost profits fron;i tort as damages. Note, 52 L. B. A. 61.
Miscellaneous. Cited in Folger v. The Robert G. Shaw, 2 Wood. & M.
646, Fed. Cas. 4899, as instance of appellate court reforming a judgment ;
Szymanski v. Plassan, 20 La. Ann. 92, 96 Am. Dec. 383, not in point; as
an instance of a libel containing an action of trespass to vessel, and of
assault and battery to owner, in The Sloop Merchant, Abb. Adm. 10, Fed.
Cas. 9434,^ Amer. Ins. Co. v. Johnson, Blatchf. & H. 22, Fed. Cas. 303, and
Borden v. Hiem, Blatchf. & H. 297, Fed. Cas. 1655.
3 Wlieat. 563--591, 4 L. Ed, 460, OBAIG ▼. TiKBTiTB.
Devise of land to trustee to sell and i>ay proceeds to ceetuis que trust Is
devise, In equity, of personalty, and If to an alien la good.
Approved^ in M^ekins v. Branning Mfg. Co., 224 Fed. 206, 209, holding
will directing sale and division of residue of realty worked equitable con-
version to personalty ; West Virginia Pulp & Paper Co, v. Miller, 176 Fed.
290, 295, 296, 100 C. C. A. 176, holding will creating trust in land to sell
for benefit of church worked equitable conversion; In re MacDougal, l75
Fed. 407, holding where life insurance' policy was held in trust by bank-
rupt, who pledged it to release farm as security for debt, b<eneficiaries were
entitled to proceeds of farm ; Walling, v. Scott, 50 Ind, App. 25, 96 N. E.
482, Kaiser v. Brat^denburg, 16 App. D. C» 316, and Cropley v. Cooper, 7
D. C. 228, all holding direction of will to sell land to pay legacies worked
conversion; Hilton v. Hilton, 2 McAr, (D. C.) 88, holding direction to
sell realty to pay particular legacy worked conversion only for purpose and
to extent indicated; In re Bernhard's Estate, 134 Iowa, 606, 12 L. R. A.
(N. S.) 1029, 112 N. W. 87, holding devise of land subi^ct to contract to
sell worked conversion, and payments made after deatlipassed to residuary
legatees ; Boland v. Tiemay, 118 Iowa, 62, 68, 91 N. W, 837, holding will
devising land to grandchildren and containing clause that executor sell land
x^
833 CRAIG V. LESLIE. 3 Wheat. 563-591
*and reinvest proceeds and divide accumulations worked an equitable con-
version; Hutchings v. Davis, 68 Ohio St. 174, 67 N. E. 254, construing pro-
vision for sale of realty and blending of proceeds with personalty in one
fund as a conversion ; Proebstel v. Trout, 60 Or. 151, 118 Pac. 553, holding
debt not extinguished by oflfer to pay without ability to perform; Painter
v. Painter, 220 Pa. 90, 20 L. R. A. (JT. S.) 117, 69 Atl. 325, holding direc-
tion to sell for object which could not be accomplished did not Work con-
version ; In re Adams, 32 B. I.i 46, 78 Atl. 526, holding direction to sell
and pay process to beneficiaries was mandatory and worked conversion;
State V. Superior Court, 31 Wash. 460, 72 Pac. 94, holding that under Ball.
Codes, §§ 4333, 4334, railroad may appropriate interest of parties in tide-
lands, held under contract with State; Board of Trustees v. Blair, 45
W. Va. 825, 32 S. E. 208, upon question of equitable conversion; dissent-
ing opinion in Geiger v. Bitzer, 80 Ohio St. 92, 93, 17 Ann. Gas. 151, 22
L K A. (N. S.) 285, 88 N. E. 141, majority holding equital)le conversion
not worked under terms of will; Bank of Ukiah v. Bice, 143 Cal. 273, 101
Am. St. Rep. 118, 76 Pac. 1022, arguendo; Neilson v. Lagon, 12 How. 107,
13 L. Ed. 913, holding conveyance to trustees to sell land and pay debt
with proceeds is not a purchase of land by creditor; Cropley v. Cooper, 19
Wall. 174, 22 L. Ed. 113, holding real estate directed by will to be con-
verted into money is regarded as money at death of testator; Beading v.
Blackwell, 1 Bald. 173, Fed. Cas. 11,612, where executors were after happen-
ing of an event to sell and divide proceeds; Binehart v. Harrison, 1 Bald.
185, Fed. Cas. 11,840, where period of sale was remote; Beadle v. Beadle,
2 McCrary, 594, 40 Fed. 316, holding will authorizing executors to soil
land and pay legacies does not vest title in such executors ; PuUiam v. Pul-
liam, 10 Fed. 42, 46, Fed. Cas. 11,463a, executor held liable for neglecting
to sell proi)erty at proper time ; Bichardson v. Hamlett, 33 Ark.i 239, hold-
ing agreement of vendee to execute mortgage for purchace money will give
vendor same rights in equity as if mortgage had been executed ; Holbrook v.
Betton, 5 Fla. 104, holding purchaser, under executory contract in pos-
session, has an interest subject to sale, devise, etc.; Loughborough y.
Loughborough, 14 B. Mon. 554, holding doctrine is equally applicable to
deeds; Colsten v. Chaudet, 4 Bush (Ky.), 672, holding since it was the
intention of the testator to convert, title to land vested in executors ; Hurtt
V. Fisher, 1 Har. & G. 96, holding, if wife- entitled to proceeds of land dies,
after the sale of it, her husband is entitled to proceeds ; Barnum v. Bamum,
42 Md. 308, where first clause of ^11 was void, and second clause provided
for conversion, it was regarded as affected at testator's death; Keller v.
Harper, 64 Md. 83, 1 Atl. 66, where sale depends on contingency, trans-
mutation does not take place until contingency has happened; Holland v.
Cruft, 3 Ofay, 180, though land is converted into personalty the procejeds
go as though it -had remained real estate ; Hammond v. Putnam, 110 Mass.
237, where land was devised to be sold* and proceeds distributed, on death
of devisee his share went to his administrator ; Shaw v. Chambers, 48 Mich.
359, 360, 12 N. W. 489, where land was to be exchanged for securities;
Hardee v. Cheatham, 52 Miss. 46, where testator authorized executor to
1—53
I
3 Wheat. 563-691 NOTlJs ON U. S. REPORTS. 834
invest profit in property, upon investment that part of the estate partook'
of the character of rea,! estate; Gates v. Hunter, 13 Mo. 513, where widow
was by judicial proceedings directed to sell land in one State, and invest
in lands of another, money in her hands is regarded as realty; Compton v.
McMahan, 19 Mo. App. 503, where testator directs land to be sold, not
leaving it discretionary, land is considered money from date of his death;
Hastings' etc. R. R. Co. y. Ingalls, 15 Neb. 129, 16 N. W. 764, holding pur-
chaser of real estate holding it by contraot may maintain action for dam-
ages, though legal title is in vendor; Schroeder v. Wilcox, 39 Neb. 147, 57
N. W., 1034, holding executor of will requiring payment of debts and dis-
tribution of remainder had power to sell without order of the court; Hogle
v. Lowe, 12 Nev. 297, holding individual real property converted into part-
nership property and appropriated to its uses is, in equity, personalty;
Vandcwalker v. Rollins, 63 N. H. 464, 3 Atl. 626, money converted into land
by judicial decree for security, descends as personalty ; Berrien v. Berrien,
4 N. J. Eq. 40^ where will directs land to be sold, but no sale is made,
widow of son is not entitled to dower; Scudder v. Vanarsdale, 13 N. J.
Eq. Il3, treating as a legacy land directed to be converted into money ; as
also in Fluke v. Fluke, 16 N. J. Eq. 480, to the same effect ; Oberly v. Lerch,
18 N. J. Eq. 349, surplus of proceeds of land sold by order of court to pay
debts treated as real estate; Lorillard v. Coster, 5 Paige, 218, doctrine of
equitable conversion is applicable to a direction to sell one lot of land and
, convert it' into another; Anstice v. Brown, 6 Paige, 454, holding convey-
ance of land to trustee to sell and pay proceeds to alien creditor good,
bocause it is not a conveyance to him of land; Mcakings v. Cromwell, 5
N. Y. 142, where land was devised to be sold and proceeds divided, some
of the beneficiaries being aliens; Downing v. Marshall, 23 N. T. 393, 80
Am. Dec. fSlS, holding where statute prohibited corporation taking land,
held they could take money raised by conversion of land; McNaughton v.
McNaughton, 34 N. Y. 203, where testator devised all his real estate to his
wife for life, directing a sale after her death, proceeds to others, latter
take only proceeds of land held at time of his death ; Manice v. Manice, 43
N. Y. 372, holding rights of testator's children in case of their death pend-
ing partition should be same as if partition had been completed on widow's
death ; Horton v. McCoy, 47 N. "Y. 25, holding where land devised was to
be sold and proceeds distributed, that infant^ could devise her share, it
' T)eing personalty; Fisher' v. Banta, 66 N. Y. 477, holding direction in codicil
to sell, no purpose being there express^, was for division, and operated
as a conversion ; Marx v. McGlynn, 88 N. Y. 376, holding devise of land
to trustee to pay proceeds to alien, a devise of personalty, and valid ; John-
ston V. Spicer, 107 N. Y. 193, 13 N. E. 756, enforcing antenuptial contract,
thqugh no trustee had been appointed, and no property acquired; Williams
V. Haddock, 145 N. Y. 151, 39 N. E. 826, holding that from time of con-
tract for sale of land, there was ati equitable conversion; Greene v. Sur-
viving Partners, 1 Ohio, 544, 13 Am. Dec. 644, holding widow not entitled
to dower of partnership lands, under articles stipulating it should be sold
for debts; Collier v. Collier, 3 Ohio St. 374, treating land directed to be
converted as money; Gilbert v. Port, 28 Ohio St. 299, holding rule of con-
835 CRAIG V. LESLIE. 3. Wheat. 563-591
version does not operate to create new rights, hut extends only to estate
contracted to be sold ; Allison v. Wilson, 13 Serg. & R. 330, where testator
directed that) after death of his widow, land should be sold and proceeds
divided, money went to administrator de bonis non; also in Morrow v.
Brenizer, 2 Rawle, 188, where under similar facts it was held real estate
could not be levied upon by judgment creditor of beneficiary (but see dis-
senting opinion of same' case, p. 193) ; Craft v. Webster, 4 Rawle,^ 251,
holding a deed 'purporting to convey all right and title of grantor who had
parted with fee does not pass his interest in purchase money charged on
the land; Burr v. Sim, 1 Whart. 263, 29 Am. Dec. 52, holding equity con-
siders as money, land directed in a will to be sold ; Kerr v. Day, 14 Pa. St.
114, 53 Am. Dec. 527, equitable conversion takes place, though election rests
solely with purchaser; Ervine's Appeal, 16 Pa. St. 265, 55 Am. Dec. 502,
holding legislature could not direct sale to be made within time forbidden
by ^testator, if other parties in interest were under no disability ; Territory
V. Golding, 3 Utah; 48, 5 Pac. 550, holding conveyance of land as security
for a debt may be enforced as a mortgage, though there is no foreclosure
or defeasance clause; In re Rudy's Estate, 185 Pa. St. 362, 64 Am. St. Rep.
657, but holding realty is to be treated as personalty only for purposes of
devise ; King v. King, 13 R. I. 506, intention of testator^ to convert must
be clearly expressed; American Bible Society v. Noble, 11 Rich. Eq. 201,
holding a devise of land to be sold and proceeds given to religious corpo-
rations is a devise of personalty and valid; Pratt v. Taliaferro, 3 Leigh
(Va.), 424, holding there was a conversion under the will, and husband was
entitled to it; Harcum v. Hudnall, 14 Gratt. 374, 375, considering land
money from time sale was directed to take place; Ropp v. Minor, 33 Gratt.
109, holding will converted estate into money; Phillips v. Ferguson, 85
Va. 511, 17 Am. St. Rep. 79, 8 S. E. 242, money bequeathed to be invested
in land considered realty, if legacy lapses it goes to residuary legatee ; Carr
v. Branch, 85 Va. 602, 8 S. E. 479, treating land directed to be sold as per-
sonalty; Gallagher v. Rowan, 86 Va. 825, 11 S. E. 122, where conversion of
land partly fails, surplus goes to personal representatives; Zane v. Saw-
tell, 11 W. Va. 48, holding conveyance by husband and wife to trustee to
sell and pay proceeds to them is a conversion; Dodge v. Williams, 46 Wis.
97, 50 N. W. 1106, where general tenor of will showed testator's intention
that realty should be sold; Peter v. Beverly, 10 Pet. 563, 9 L. Ed. 535,
Crooks V. WTiitford, 47 Mich. 291, 11 N. W. 163, arguendo.
Distinguished in Geiger v. Bitzer, 80 Ohio St. 86, 17 Ann. Cas. 151, 22
L. R. A. (N. S.) 285, 88 N. E. 139, holdipg under terms of will no equitable
conversion was worked; Van Zandt v. Garretson, 21 R. I. 419, 44 Atl. 221,
holding execution of contract to sell by beneficiaries entitled to proceeds
of sale under will is not a rejection of provisions of will ; Samuel v. Samuel,
4 B. Hon. 255, holding husband cannot take the land before conversion,
and hold it as money free from wife's right, she being the devisee; Wool-
dridge v. Wilkins, 3 How. (Miss.) 372, on the ground of insufficient evi-
dence of intention to convert lands conveyed to a pfartnership for part-
nership purposes; Teneick v. Flagg, 29 N. J. L. 31, holding doctrine of
equitable conversion not applicable to estates at law; Horner's Appeal,
3 Wheat. 563-^91 NOTES ON U. S. REPORTS. 836
Ervin's Estate, 56 Pa. St. 408, where testator devised lands to wife to be
sold and distributed after her death, interest in land of a ehild dying dur-
ing life of wife was passed to purchaser by sale under direction of court ;
De Wolf V. Lawson, 61 Wis. 478, 21 N. W. 618, where direction was to sell
after twenty years, held no conversion could take place before that time ;
Ford V. Ford, 70 Wis. 47, 5 Am. St. Eep. 123, 33 N. W. 196, declaring that
doctriiie has no application to lands nowhere referred to in a will.
Equitable conversion of real estate into personal, and 'personal estate
into real, by will. Note, 5^Am. St. Rep. 141, 146, 147.
When equitable conversion takes place under will directing sale of
land at future timd. Note, Ann. Gas. 1915D, 434, 436.
Eqidtable conversion of realty into personalty, and vice versa. Note,
7 £. R. 0. 24, 25.
When realty considered firm property. Note, 27^ R. A. 473.
In devise to sell land and convert Into money or to Invest money in land,
beneficiary may elect to take land or money.
Approved in Whitfield v. Thompson, 85 Miss. 758, 38 South. 115, Givens
V. Ott, 222 Mo. 419, 121 S. W. 29, and Harris v. Ingallis, 74 N. H. 344, 68
Atl. 37, all following rule ; Nelson v. Nelson, 36 Ind. App. 336, 75 N. E. 681,
under will giving property to wife and providing for its sale on her death,
and division of proceeds among children, then equitable conversion is of-
date of his death, and children take vested interest as o^ that date; Atlee
V. BuUard, 123 Iowa, 279, 98. N. W. 890, where testator devised land to
wife till youngest child attained majority, when it was to be sold and pro-
ceeds divided between wife and children, in suit for partition wife's share
subject to judgment lien; Griffith v. Witten, 252 Mo. 645, 161 S. W. 713,
holding court could elect to reconvert to realty property so converted for
benefit of minor beneficiary ; Doyle v. Blake, 77 N. J; Eq. 143, 144, 77 Atl.
348, restraining executor from selling realty at suit of sole beneficiary
under will electing to take realty; Wooster v. Cooper, 59 N. J. Eq. 229, 45
Atl. 390, granting petition where all beneficiaries taking under power in
will join in asking conveyance to themselves instead of making sale under
I>ower; Cropley v. Cooper, 19 Wall. 177,. 22 L. Ed. 114, allowing sole repre-
sentative of beneficiary to elect; Rinehart v. Harrison, 1 Bald. 186, Fed.
Cas. 11,840, declaring that person must be entitled to the whole surplus
to come within the rule; Beadle v. Beadle, 2 McCrary, 597, 40 Fed. 318,
holding where the same persons receive the bequest, in whatever form it is,
they may elect; Swann v. Garrett, 71 Ga. 571, holding court of equity
may elect for an infant; Wells v. Lewis, 4 Met. (Ky.) 274, holding that
all the devisees must agree to elect; Mandlebaum v. McDonell, 29 Mich.
86, 18 Am. Rep. 66, holding each devisee may elect as to his own share;
Howell V. Tomkins, 42 1^, J. Eq. 309, 11 Atl. 335, where lands were de-
vised to an executor in trust with P9wer to sell, conations having been
fulfilled, the cestuis que trust can elect; Hetzel v. Barber, 69 N. Y. 11,
holding conveyance of cestuis que trust after becoming of age, defeated
subsequent conveyance in execution of the power ; Morse v. Morse, 85 N. Y.
837 CRAIG V. LESLIE. , 3 Wheat. 563-591
61, holding part of beneficiaries cannot affect a reconversion ; dissenting
opinion in Bmch v. Lantz, 2 Rawle, 420^ 21 Am. Dec. .464, majority hold-
ing sale of real estate by executor to himself in pursuance of a will void;
Shanks v. Edmondson, 28 G^att. 813, the election must be distinctly proven ;
Effinger v. Hall, 81 Va. 107, holding actual conversion may be prevented ;
Buxton V. Shaffer, 43 W. Va. 298, 27 S. E. 319, deviseei# may convey to
each other, and defeat commissions of executors; Gable v.- Ellender, 53
Md. 322, putting decision on l^al grounds ; Trecothick y. Austin, 4 Mason,
39, Fed. Cas. 14,164, in discussion as to who are proper parties.
Distinguished in Mills v. Harris, 104 N. C. 630, 10 S. E. 705, where there
had been no conversion; Dunlop v. Harrison, 14 Gratt. 265, because the
free negroes were capable of taking slaves, and no election could be forced
on them.
Land impressed with character of money remaining so until election
to take it as land. Note, 7 £. B. 0. 45.
An alien can take and hold land till office found.
Approved in Hammekin v. Clajrton, 2 Woods, 339, Fed. Cas. 5996, hold-
ing that by civil and common law alien could hold land till office found;
Billings V. Aspen M. & §< Co., 51 Fed. 342, 10 U. S. App. 1, alien may hold
his interest in mining claim, against all the world except the .United States ;
Jones V. Minogue, 29 Ark. 645, holding at common law alien 'could take
and transmit land by devise; People v. Folsom, 5 Cal. 378, holding foreign-
ers in the absence of legislation may inherit property in all the terri-
tories; De Merle v. Mathews, 26 Cal. 477, by common and civil law alien
could hold land until office found, or denouncement; Justice Min. Co. iv.
Lee, 21 Colo. 263, 52 Am. St. Rep. 219» 40 Pac. 445, holding grant of land
to alien is not subject to collateral attack by third party; Evans' Appeal,
51 Conn. 439, holding aliens can take personal estate by distribution ; Crane
V. Reeder, 21 Mich. 69, 73, 4 Am. Rep. 440^ 443, act authorizing foreigner
to take and hold lands does not give his heirs right to inherit, unless such
right became vested before repeal of the act ; Shaw v. Brown, 35 Miss. 315,
holding free negro of another State may* take legacy; Cowan v. Stamps,
46 Miss. 448, holding negroes could take property without removal, though
will contemplated it ; Territory v. Lee, 2 Mont. 129, holding act providing
for forfeiture to territory^ of placer mines held by aliens, vofd ; Atkins v.
Kron, 5 Ired. Eq.' 213, 214, 215, holding alien cannot enforce a trust of
land; Hubbard v. Goodwin, 3 Leigh, 512, 513, 522, holding where land is
conveyed to citizen for tfn alien, commonwealth is not entitled to profits,
until offiee found; Taylor v. Benham, 5 How. 269, 270, 12 L. Ed. 147, 148,
arguendo.
Extrinsic evidence to explain imperfect description in devise. Note,
46 Am. Rep. 75.
^pperty subject to escheat to State. Note, Ann. Oaa. 1912D, 385.
MiscelUneous. Cited in Carpenter ▼..Lockhart, 1 Ind. 444; Inman y.
Jackson^ 4 Me. 245, not in point.
I
3 Wheat. 691^94 NOTES ON U. S. tlEPORTS. 838
8 Wlieat. 691-^94, 4 L. Ed. 467, GAMEBON y. McBOBEBTS.
Circuit Courts liave no power to set aside tlieir decrees in equity, on moUon,
after term at which they are tendered.
Approved in United States v. Mayer, 235 U. S. 67, 59 L. Ed. 135, 35 Sup.
Ct. 16, holding new trial of criminal case could not be granted after end
of term; In re Idietropolitan Trust Co., 218 U. S. 320, 54 L- Ed. 1055, 31
Sup. Ct. 18, holding decree of dismissal as to one defendant could not be
vacated on motion made after end of term ; Wetmore v. Karrick, 205 U. S.
152, 157, 51 L. Ed. 749, 751, 27 Sup. Ct. 434, refusing to set aside judg-
ment after end of term ; Forty Fort Coal Co. v. Earkendall, 233 Fed. 706,
applying rule in suit to recover excise tax; Miocene Ditch Co. v. Campion
Minhig etc. Co., 197 Fed. 500, 117 C. C. A. 61, holding motion of inter-
,veners to recall mandate of reversal on ground of fraud of attorneys could
not be made after end of term; Home St. Ry. Co. v. City of Lincoln, 162
Fed. 137, 89 C. C. A. 133, holding rule applied to error in decree; Nelson
V. Meehan, 155 Fed. 6, 12 L. R. A. (N. S.) 378, 83 C. C. A. 597, holding
Alaska Code of Civil Procedure, section 93, did not alter rule; Virginia
T. & C. etc. Iron Co. v. Harris, 151 Fed. 435, 80 C. C. A. 658, holding
Federal court could follow rule of State court in setting aside judgment
in ejectment within one year ; King v. Davis, 137 Fed. 227, court may after
term control execution of Anal process issued on judgment to prevent in-
justice; TJnited States v. Four Lorgnette Holders, 132 Fed. 565, judgment
of forfeiture against imported merchandise for attempt to defraud cus-
tbms laws cannot be vacated after term on account of irreguliuities in pro-
ceedings ; City of Manning v. German Ins. Co., 107 Fed. 55, applying prin-
ciple to grant of new trial; Schwartz v. Costello, 11 App. D. C. 557,
applying rule to order in equity cause determining collateral matter; Com-
monwealth V. Soderquest, 183 Mass. 200, 66 N. E. 802, holding after term
at which defendant in criminal prosecution was sentenced on his plea of
guilty, court cannot entertain motion for new trial, or to retract plea;
Bates V. State, 63 Ohio St. 13, 57 N. E. 958, holding record in criminal
case cannot be amended at term next after motion in arrest; Illinois v.
Illinois Cent. R. R. Co., 184 If. S. 91, 46 L. Ed. 446, 22 Sup. Ct. 306,
arguendo; Ex parte Sibbald v. United States, 12 Pet. 492, 9 ll Ed. 1169,
holding after term has elapsed this court cannot alter a decree or judg-
ment ; Bank of U. S. v. Morse, 6 How. 38, 40, 12 L. EdL 334, 335, holding
court at subsequent term could not strike out judgment for supposed want
of jurisdiction; McMicken v. Perin, 18 How. 511, 15 L. Ed. 506, holding
Circuit Court has no power to set aside, on mdtion, their decrees, after
term has elapsed ; French v. Hay, 22 Wall. 245, 22 L. Ed. 356, holding de-
cree stood as though no amended bill had been^'filed, and was res adjudi-
cata ; Bronson v. Schulten,, 104 U. S. 416, 26 L. Ed. 799, after term wheil
rendered, judgment can only be corrected by appellate court; Phillips v.
Negley, 117 U. S. 674, 29 L. Ed. 1015, 6 Sup. Ct. 905, holding same as to
final judgment at law; Hickman v. Fort Scott, 141 U. S. 419, 35 L. Ed.^776,
12 Sup. Ct* 11, denying petition to court of law to change a record of origi-
nal judgment, since reversed ; Dowell v. Applegate, 152 U. S. 338, 38 L. Ed.
467, 14 Sup. Ct. 616, holding decree of Federal court cannot be treated as
839 CAMERON v. McROBERTS. /^ Wheat. 59^94
a nullity by a party; In re Troy Woolen Co., 5 Ben. 416, Fed. Caa. 14,^00,
refusing to give rehearing on reference, in order to obtain a review of the
decision; United States v. Millinger, 19 Blatchf. 204, 7 Fed. 189, refusing
to open a judgment; Scott v. Hore, 1 Hughes, 167, Fed. Cas. 12,535, refus-
ing to open default taken through neglect of counsel; Snow v. Edwards, 2
Low. 276, Fed. Cas. 13;145, holding in American admiralty practice, a
sibimary rehearing on motion can be granted only during the term ; Grames
V. Hawley, 4 McCrary, 64, 50 Fedi 320; holding judgment cannot be set
aside after term upon fraud or any other ground; Brush v. Robbins, 3
McLean, 486, Fed. Cas. 2059, holding judgment of a previous term cannot
be set aside on motion; West v. Davis, 4 McLean, 242, Fed. Cas. 17,422,
refusing to set aside a judicial sale; Emerson v. Davies, 1 Wood. & M. 23,
Fed. Cas. 4437^ refusing to grant rehearing of equity case on certificate
of counsel ; Jenkins v. Eldredge, 1 Wood. & M. 63, 65, Fed. Cas. 7269, hold-
ing terms of final judgment cannot be altered by court in any material
part; Coleman v. Neill, 11 Fed. 462, after four years an amicable final
decree in equity will not be amended upon petition, although assignee con-
sents, but amendments would prejudice creditors ; Allen v. Wilson, 21 Fed.
883, holding Circuit Court, after term, cannot alter its dec\ee; Glenn v.
Dinunock, 43 Fed. 551, holding order sustaining petition for rehearing
after lapse of succeeding term to which final decree was entered, void ; Ex
parte Lennon, 64 Fed. 322, 22 U. S. App. 561, holding judgment of Federal
court cannot be collaterally attacked, though its jurisdiction as to citizen-
ship does not appear on the record ; Schofield v. Horse Springs Cattle Co.,
65 Fed. 434, refusing to open default in absence of sworn answer; Bissell
Carpet-Sweeper Co. v. Goshen Sweeper Co., 72 Fed. 553, 43 U. S. App. 47,
decree of Court of Appeals finally settled ; McClellan v. Fosbender, 15 Fed.
Cas. 1269, holding judgment cannot be set aside after the close of the
term at which it was rendered; Poole v. Nixon, 9 Pet. Appx. 770, 9 L. Ed.
305, 19 Fed. Cas. 993, holding that, after final decree, new matter and
parties can only be introduced by a bill of review; Ex parte Cresswell, 60
Ala. 379, applying rule, although matters of account were stiir pending ;
Roberts v. Haggart, 4 Dak. 211, 29 N. W. 656, holding rehearing cannot
be granted after final judgment, and adjournment ^of term ; Cook v. Wood,
24, 111. 298, holding court at/ subsequent term may amend judgment in a
mere matter of form; Gullett v. Housh, 5 Blatchf. (Ind.) 34, and Burch v.
Scott, 1 Bland Ch. 120, holding courts cannot set aside their decrees in
equity, after the term, on motion ; Pipkin v. Haun, 1 Freem. Ch. 267, hold-
ing omission in decree may be supplied at any time, where omission would
have been embraced in it almost oi course, Sagory v. Bayless,'13 Smedes &
M. 156, holding after session, fin^il judgment can only be reviewed on
appeal or writ of error; Leach v. Jones, 11 R. I. 387, holding after begin-
ning of next term, judgment can only be changed by bill of review;
Chambers v. Hodges, 3 Tex. 529, holding after entry of judgment and close
of term, court cannot modify its judgment ; Edwards v. Jonesville, 14 Wis.
27, holding judgment of court on report of r^feree^ cannot be set aside on
motion.
/
3 Wheat. 591-694 NOTES ON U. S. REPORTS. ^ 840
Distinguished in Newman v. .Moody, 19 Fed. 860, allowing reirearing in
subsequent term, of final deoree, from which there was no appeal ; Thomas
V. Amerixsan etc. Co., 47 Fed. 656,'holding judgment rendered without juris-
diction may be set aside at subsequent term; United States v. Peralta, 27
Fed. Cas. 497, holding District Court may inquire whether boundaries in
confirming decree are in accord with those in their decree and the title
papers.
Denied in Stribling v. Hart, 20 F|pi. 242, 243, holding decree of State
court may be opened on motion.
If defendants, over some of whom court is without Jurisdiction, have dis-
tinct interests, jurisdiction may be exercised as to parties over whom court has
Jurisdiction.
Approved in Camp v. Bonsai, 203 Fed. 919, 122 C. C. A. 207, holding
tenant in common could sue in equity with relation to his interest without
joining cotenants ; Howe v. Howe & Owen Ball Bearing Co., 154 Fed. 828,
83 C. C. A. 536, holding prior agreement of defendant to convey property
to third person, not party to suit, no defense to specific performance of
subsequent agreement to convey same property ; Mackay v. Gabel, 117 Fed.
878, holding in suit by third party to set aside deed, grantor is not an
indispensable party, where pleadings admit that deed conveyed all of
grantor's interest; Leyden v. Owen, 150 Mo. App. 115, 129 S. W. 988, ap-
plying rule in action to enforce trust agreement; Minnesota v. Northern
Securities Co., 184 U. S. 236, 46 L. Ed. 516. 22 Sup. Ct. 322, arguendo;
Carneal v. Banks, 10 Wheat. 188, 6 L. Ed. 299, holding joinder of improper
parties, as citizens of same State, ^yill not affect jurisdiction of proper par-
ties; Vattier v. Hinde, 7 Pet. 262, 8 L. Ed. 679, holding if party's joinder
would defeat jurisdiction, and decree can be so framed as not to affect his
interest, h^ may be omitted, and suit proceed against the other defendants;
Shields v. Barrow, 17 How. 140, 141, 15 L. Ed. 160," 161, holding under
forty-seventh rule of equity, Circuit Court cannot render a decree in ab-
sence of q,n indispensable party; dissenting opinion in Florida v. Geoi^a,
17 How. 508, 15 L. Ed. 200, majority holding attorney general may appear
on behalf of United States, in controversy over boundary between two
States; Gray v. Larrimore, 2 Abb. (U. S.) 554, Fed. Cas. 5721, decree of
dissolution, one partner being nonresident, is defective unless service by
publication is authorized; Hatfield v. Bushnell, 1 Blatchf. 395, Fed. Cas.
6211, ac^raission as party ^f executor, resident of same State as defendant,
does not oust court of jurisdiction; Pond v. Railroad Co., 12 Blatchf. 290,
Fed. Cas. 11,265, defendants of other States appearing will not oust court
of jurisdiction; Tobin v. Walkinshaw, McAll. 28, Fed. Cas. 14,068, holding
court cannot act without an indispensable party; Morrison v. Bennet, 1
McLean, 331, Fed. Cas. 9843, sustaining ji^risdiction where writ issued
against person whose citizenship was undesignated, was returned non est;
Smith V. Rines, 2 Sumn. 347, 349, Fed. Cas. 13,100, holding a cause cannot
be removed as to some defendants, where interest is not distinct; Kirk-
patrick v. White, 4 Wash. 598, Fed. Cas. 7850, court has no jurisdiction
where defendants jointly interested are not all entitled to claim jurisdic-
841 CRAIG V. RADFORD. 3 Wheat. 694-600
tion; Nesmith v. Calvert, 1 Wood. & M. 38, Fed. Cas. 10,123, holding as
suit could be maintained against him alone, disability of other defendant
not fatal to"" jurisdiction ; as also in Heriot t. Davis, 2 Wood. & M. 232,
Fed. Cas. 6404, to samoveffect; Litchfield v. The Register, Woolw. 306, Fed.
Cas. 8388, court will refuse to entertain suit, if necessary parties are not
before it ; Conolly v. Wells, 33 Fed. 208, sustaining demurrer for nonjoinder
of an indispensable party; Sioux City T. R. &. W. Co. v. Trust Co., 82 Fed.
127, holding joinder of any but indispensable parties will not oust court
of jurisdiction; Ex partiB Andrews, 40 Ala. 646, 649, holding suit not re-
movable as to part of defendants in conspiracy case; North River Steam-
boat Co. V. Hoffman, 5 Johns. Ch. 303, holding if some plaintiffs and de-
fendant are of same State, suit is not remofvable ; Hatfield v. Bushnell, 22
Vt. 661, holding jurisdiction continues though party dies and adminis-
trator is of same State as other party.
Distinguished in Regis v. United Drug Co., 180 Fed. 204, holding bill to
restrain infringement of trademark did not present separable controversy
as to one defendant so as to' authorize removal to Federal court ; Barney
V. Baltimore, 6 Wall. 285, 18 L. £d. 826, holding partition cannot be
awarded unless part owners are subject- to jurisdiction of court.
Miscellaneous. Cited in Baker v. Biddle, 1 Bald. 416, Fed. Cas. 764,
application doubtful.
8 Wheat. 694-600, 4 L. Ed. 467, OBAIG ▼. BADFOBD.
Surveyor's certificate that survey made by virtue of Oovemor's warrant
ia sni&clent evidence tbat Governor's warrant was in his possession.
Approved in Murphy v. Tanner, 176 Fed. 543, 100 C. C. A. 125, holding in
ejectment by claimant under patent against homestead claimant, latter
could not attack correctness of government survey; Cragin v.-Pow^l, 128
U. S. 699, 82 L. Ed. >569, 9 Sup. Ct. 206, holding correction of survey by
general land ofiice unassailable by courts except in direct proceedings;
Cohas V. Raisin, 3^ Cal. 448, holding grant by alcalde is presumed to have
been with authority and within the Pueblo.
Alien may take hy purchase a freehold estate and hold it until ofllce found.
Approved in Shea v. Nilima, 133 Fed. 215, 66 C. C. A. 263, agreement
between two aliens to locate or acquire mining claims for joint benefit is
enforceable by either; Wilson v. Triumph Min. Co., 19 Utah, 74, 75 Am.
St. Rep. 722, 56 Pac. 302, holding government alone can question alien's y
mining location; Perry v. Commissioners of Railroad, 11 Rob. (La.) 415,
holding^ there can be no forfeiture without judicial inquiry ; Quigley v.
Birdseye, 11 Mont. 446, 28 Pac 743, holding alien may hold title to ditch
and water right until ofiice found; Kershaw v. Kelsey, 100 Mass. 574, 576,
97 Am. Dec. 137, 138> discussing rights of aliens ; Elmondorff v. Carmichael, 3
Litt. 475, 14 Am. Dec. 88, holding rule applicable where the alien was a
patentee from the State.
Distinguished in Hanna v. Kelsey Realty Co., 145 Wis. 280, 140 Am. St.
Bep. 1075, 83 L. B. A. <N. S;) 360, 129 N. W. 1082, holding wholly void
3 Wheat. 600-644 NOTES ON U. S. REPORTS. 842
deed to foreign corporation which had not complied with statute of State
providing foreign corporation could not hold property except on compliance
with statute; Wulf v. Manuel, 9 Mont. 285, 23 Pac. 725, holding act of
naturalization would not retroact upon purchase of a mining claim.
Civil death, and the extent to which it is recognized in America. Note,
6 Am. St. Rep. 382.
Necessity for judicial proceeding to effect escheat. Note, 16 L. R. A.
(N. S.) 381.
Defeasible tittle vested in English sabject is protected and confimed by
ninth article of treaty of 1794.
Cited iii Pollard v. Kibhe, 14 Pet. 412, 10 L. Ed. 519, construing treaty ;
Crane v. Reeder, 21 Mich. 66, 4 Am. Rep. 438, holding treaty applies only
to protection of valid titlesl
Effect of treaties on alien's right to inherit. Note, 32 L. R. A. 180.
Miscellaneous. Cited in Folger v. The Robert G. Shaw, 2 Wood. & M.
546, Fed. Cas. 4899, as instance of a judgment rendered in appellate court
' to carry into effect judgment below.
3 Wheat. 600-601, 4 L. Ed. 469, ROSS ▼. TBIPLETT.
Supreme Court may not take jurisdiction on certificate of division fton
Circuit Court for DiArict of Columbia.
Approved in Bradley v. Fisher, 7 D. C. 60, holding act of March 2, 1831,
related only to contempts of court of United States, and not to cases of
professional misconduct of attorneys ; dissenting opinion in Ex parte Crane,
5 Pet. 206, 8 L. Ed. 98, majority holding Suprenie Court can mandamus
Circuit Coiui; to sign bill of exceptions.
8 Wheat. 601-610, 4 L. Ed. 469, THE NEPTUNE.
Vessel forfeited, for fraudulent use of register to ^hith she was not
entitled.
Cited in The Fideliter, Deady, 644, Fed. Cas. 4766, where, by false af-
firmation, an American registry was obtained in fraud of our laws, vessel
was forfeited.
Miscellaneous. Cited in Folger v. The Robert Shaw, 2 Wood.,& M. 544,
Fed. Cas. 4899, but application doubtful. *
8 Wheat. 610-644, 4 L. Ed. 471, UNITED STATES ▼. PALMER.
Bobhery on high seas, although not capital offense on land, is pdxacy within
act of 1790, and common-law rules as to robbery govern.
Cited in United States v. Copperstfiith, 4 Fed. 200, construing words
"any other felony"; United States v. Coppersmith, 2 Flipp. 549, holding
common law must be looked to in interpreting word "felony"; United States
V. Wilson, Bald. 93, Fed. Cas. 16,730, holding "rob," in act of 1825, is used
in its common-law sense; United States v. Durkee, McAU. 201, Fed. Cas.
843
UNITED STATES v. PALMER. 3 Wheat. 610-^644
15,009, determining requisites of larceny; United/ States ▼. Stone, 8 Fed.
251, constrtdng "steal" in Federal statute; Dole v. Insurance Co., 51 Me.
468, holding that piracy is robbery committed on the high seas; Reagan v
United SUtes, 157 U. S. 303, 39 L. ^Ed. 710, 15 Sup. Ct. 611, and State v.
Lancashire Ins. Co., 66 Ark. 473, 45 L. R. A. S48, 51 S. W. 635, both
aiguendo.
• Jurisdiction over sea. No.te, 46 L. B. A. 275.
Jurisdiction over waters within three-mile limit. Note, 5 £. B. 0. 975.
Bobbery committed by foreigner on foreign ship on high seas is not punisli-
able in our courts as piracy, under act of 1790.
Cited in United States v. Pii-ates, 5 Wheat. 195, 5 L. Ed. 67, holdins:
Federal courts have no jurisdiction of murder conimitted by one foreigner
on another on foreign vessel; United States v. Kessler, Bald. 25, 26, 27, 28,
29, Fed. Cas. 15,528, holding this court has no jurisdiction of indictment for
robbery on foreign vessel on high seas; United States v. Demarchi, 5
Blatchf. 87, Fed. Cas^ 14,944, holding court has jurisdiction if vessel is
allied to belong to citieen of United States; United States v. Terrel,
Hempst. 418, Fed. Cas. 16,452, in note, robbery committed on land not
punishable with death; The Schooner Chapman, 4 Sawy. 510, Fed. Cas.
2602, holding vessel acting under commission from Confederates not a
pirate; United States v. Lewis, 13 Sawy. 533, 36 Fed. 450, United States
court has no jurisdiction of assault on high seds, unless on American ves-
> sel; United States v. Gibert, 2 Sumn. 88, Fed. Cas. 15,204, holding indict-
ment charging crime to have been committed ''on high seas," within ad-
miralty jurisdiction of the United States is sufficient; United States v.
Davis, 2 Sumn. 485, Fed. Cas. 14,932, this court has no jurisdiction where
shot was fired from our vessel killing man on foreign vessel; People v.
Tyler, 7 Mich. 213, 214, 215, 216, 74 Am- Doc. 709, 710, 711, holding United
States has no jurisdiction of crime committed on American vessel within
province of Canada; Gkkrner's Case, 3 Gratt. 738, holding citizens of Ohio
committing ofEense within that State are not subject to jurisdiction of
another State.
Distinguished in United States, v. Klintock, 5 Wheat. 150, 5 L. Ed. 56,
holding United States courts may punish piracy committed by foreigners
who have disclaimed alliance to any nation.
Title of statute may aid in showing legislative intent.
Approved in Knowlton v. Moore, 178 U. S. 65, 44 L. Ed. 979, 20 Sup. Ct.
756, holding war revenue act (20 Stat. 448, §§29, 30), imposes duty on
particular legacies and not on whole personal estate; United States v.
Patterson, 201 Fed. 715, holding Sherman anti-trust act sufficiently clear to
inform one accused of violating it of nature and cause of accusation;
United States v. Cella, 37 App. D. C. 431, holding general words in penal
statute restricted by obvious scope of statute ; Etowah Milling Co. v. Cren-
shaw, 116 Ga- 408, 42 S. E. 710, holding corporation cannot bring injunc-
tion proceedings in county other than that of its principal office, although
' suit also involves claim for past damages ; Jackson v. State, 5 Ga. App. 181,
/
3 Wheat. 610-^644 NOTES ON U. S. REPORTS. 844
62 S. E. 727, holding title of usury act illustrated legislative intent; State
v. O'Neil, 147 Iowa, 533, Ann. Oas. 1912B, 691, 38 L. B. A. (N. S.) 798,
126 N. W. 460, holding in crime ^committed in violating terms of statute
after it had been declared void by State Supreme court and before it had
been later upheld by same court under authority of United States Supreme
Court ; Kuhn v. Thompson, 168 Mich. 526, 134 N. W. 728, holding bonds and
taxes for schools were not for municipal purposes within meaning of
charter provision limiting tax rate for municipal purposes; State v. O'Con-
nor, 81 Minn. 85, 83 N. W. 500, holding Const. 1897, art. IV, § 36, does not
apply to cities thereafter incorporated; State v. Standard Oil Co., 218 Mo.
413, 116 S. W. 1030, construing and upholding State anti-monopoly act of
1899; dissenting opinion in Howard v. Illinois Central R. Co., 207 U. S.
518, 52 L. Ed. 317, 28 Sup. Ct. 141 majority holding void Employers' Lia-
bility Act of 1906 ; dissenting opinion in McDermott v. State, 143 Wis. 44,
21 Ann. Gas. 1815, 26 N. W. 895, in construing statute of 1907 regulating
branding of mixed syrup; Smythe v. Fiske, 23 Wall. 380, 23 L. Ed. 49,
construing tariff act ; Holy Trinity Church v. Unite<^ States, 143 U. S. 462,
86 li. Ed. 229, 12 Sup. Ct. 513, act prohibiting importation of foreig^n labor
under contract; CoosaW Min. Co. v. South Carolina, 144 U. S. 563, 86 L.
Ed. 542, 12 Sup. Ct. 692, construing State statute granting exclusive min-
ing right ; dissenting opinion in United States v. Freight Assn., 166 U. S.
352, 353, 41 L. Ed. 1081, 1082, 17 Sup. Ct. 563, 564, construing act respecting
combinations in respect to commerce between States, and between a State
and foreign country; Price v. Forrest, 173 U, S. 427, 43 L. Ed. 755, 19
Sup. Ct. 434, holding preamble may be referred to in ascertaining legis-
lative intent; Hahn v. Salmon, 10 Sawy. 19^, 20 Fed. 809, holding eourt
may consider title in doubtful cases; as also in Copeland v. Railroad Co.,
3 Woods, 661, Fed. Cas. 3209, and Wilson v. Spaulding, 19 Fed. 306, to
same effect ; United States v. Railroad Co., 37 Fed. 553, construing railroad
grant; Dueber etc. Co. v. Howard ^tc. Co., 66 Fed. 643, 35 U. S« App. 16,
construing anti-trust law; Baring v. Erdman, 2 Fed. Cas. 788, construing
acts allowing taking of material to construct State roads; Swann v. Jen-
kins, 82 Ala. 483, 2 South. 138, title is regarded as part of a statute, even
where State Constitution does not make it so; Middleton v* Railroad Co.,
62 Conn. 496, 27 Atl. 120, holding title is an aid in showing legislative
intent ; Cohn v. People, 149 111. 492, 41 Am. St. Rep. 308, 37 N. E. 62, in
case of ambiguity title may be resorted to; Dodd v. State, 18 Ind. 62,
construing salary act; Garrigus v. Board of Commissioners, 39 Ind. 71,
act providing for aid by counties to railroad companies; Rushville v. Gas
Co., 132 Ind. 582, 28 N. E. 855, as to power of municipality to r^ulate
rates for natural gas; Commonwealth v. Macloon, 101 Mass. 22, lOO Am.
Dec. 107, statute providing for causing death within State, by means of
injury inflicted without; Auditor-General v. Railroad Co., 82 Mich. 430, 46 «
N. W. 731, except as limited by constitutional provision, title cannot con-
trol express words in body of an act ; White v. City of Lincoln, 5 Nebi 616,
construing constitutional provision that no bill contain more than one
subject, and that be expressed in the title; Evenham v. Hulit, 45 N. J. L. ,
55, construing act constituting inferior courts ; Ayers v. Lawrence, 59 N. Y,
I I
845 UNITED STATES v. PALMER. 3 Wheat. 610-644
197, act for protection of taxpayers against wrongs of public officers ; Peo-
ple ex rel. v. Wbod, 71 N. Y. 374, act for settlement of floating debt of vil-
lage; State V. Pugh, 43 Ohio St. 113, 1 N. E. 448, act to reorganize and
consolidate cities; Henry v. Trustees, 48 Ohio St. 676, 30 N. E. 1124, holding
court will not necessarily give same meaning to same expression in' every
part of the act ; 25 Am. Rep. 240, note, dissenting opinion, con^ruiug stat-
ute to preserve peace on Sunday;. also dissenting opinion, in lii re Boston
Min. Co., 51 Cal. 626, when language of act is plain, title cannot be re-
sorted to; People v. Wintermute, 1 Dak. Ter. 90, 46 N. W. 703, holding
intention should be sought in the words of the act itself; Bartlctt v.
Morris, 9 Port. 270,* holding title cannot control that which is contained in
the body of the act ; State v. Robinson, 32 Or. 47, holding titl^ indicated an
act was an amendatory one:
Qualified in The N^w York, 108 Fed. 109, holding Mich." Sess. Laws 1891,
p. 197, r^^lating interest, does not repeal Comp. L^ws Mich. 1897, § 4865.
Secognitioii of State is political question, and Courts must view newly con-
stituted govtamment as it is viewed by legislative and executive departments.
Approved in The Divina Pastora, 4 Wheat, 63, 5 L. Ed. 516, when gov-
ernment of United States has recognized existence of war between Spain,
and her colonies, courts are bound to regard latter's acts as lawful; The
Neustra Senora, 4 Wheat. 502, 4 L. Ed. 625, restoring to belligerents, vessel
captured by them, and then brought here by oiir vessels; Cherokee Nation
V. Georgia, 5 Pet. 47, 8 L. Ed. 41, refusing to restrain State from forcible
exercise of legislation over Indians, it savoring of political ]^ower; see dis-
senting opinion, p. 59, 8 L.'Cd. 46; Scott v. Jones, 5 How. 374, 12 L. Ed.
196, Supreme Court has no jurisdiction to test validity of statute passed by
public body not belonging to the Union; Luther v. Borden, 7 How. 57, 12
L. Ed. 605, power to recognize State belongs to Congress ; Mauran V. In-
surance Co., 6 Wall. 12, 18 L. Ed. 842, taking of vessel by unacknowledged
government is a "capture" within policy; White v. Hart, 13 Wall. 649, 20
L. Ed. 687, courts concluded by congressional recognition of Constitution
of State; Jones v. United States, 137 U. S. 212', 34 L. Ed. 696, 11 Sup. Ct.
83, recognition of sovereign, de facto or de jure, of a territory is a political
question; The Hornet, 2 Abb. (U. S.) 38, 39, Fed. Cas. 6705, recognition of
belligerent a political function; Dale v. Insurance Co., 2 Cliff. 418, Fed.
Cas. 3966, taking of vessel by rebel privateer not piracy; Stoughton v.
Taylor, 2 Paine, 687, Fed. Cas. 13,502, no suit can be maintained by subject
of one belligerent against subject of ot^er in neutral coui*t for acts done
during war; The Schooner Chapman, 4 Sawy. 512, Fed. Cas. 2602, vessel
acting under commission of Confederates not a pirate ; The Ambrose Light,
25 Fed. 418, 428, 436, 441, recognitioi^ of belligerency i§ a political act;
United States v. Trumbull, 48 Fed. 104, holding status of congressional
party in Chili is to be regarded by the courts as it was then regarded by
the executive department ; The James G. Swan, 50 Fed. Ill, holding courts
bound by act of president and Congress in assuming jurisdiction over
Behring Sea outside three-mile limit; The Itata, 56 Fed. 510, 15 U. S. App.
1, declaring vessel in employ of insxirgents not forfeited as a pirate, under
3 Wheat. 610-644 NOTES ON U. S. REPORTS. 846
statute forbidding fitting out of vessels here to be employed by foreign
State or people ; United States v. One Hundred and Twenty-nine Packages,
27 Fed. Gas. 289, existence of peace or war is a question for political de-
partment; as also in United States v. Barrels of Cement, 27 Fed. Gas.
293 ; United States v. Bales of Gotton, 27 Fed. Gas. 328, conditions of war
and peace and ^atus of a government are questions for political deter-
mination; Kelley v. State, 25 Ark. 398, holding political status of a State
is a political question; Perkins v. Rogers, 35 Ind. 156, 9 Am. Bep. 664,
existence of war or peace is determined by the political department;
dissenting opinion in In re Gunn, 5(0 Kan. 231, 32 Pac. 954, majority holding
constitutional house not ousted by refusal of Governor to communicate
with it; dissenting opinion in Price v. Poynter, 1 Bush (Ky.), 391, majority
holding State legislation could not quaUfy . belligerent rights; Martin v.
Hortin, 1 Bush (Ky.), 631, holding Gonfederate currency a valuable con*
sideration; Dimond v. Petit, 2 La. Ann. 537, 46 Am. Dec. 558, in absence
of recognition by our government, insurgents cannot be given rights of
belligerents; dissenting opinion in People v. Dibble, 16 N. Y. 224, majority
holding entry of person not an Indian, on Indian lands, under deed,
claimed to have been recognized by a treaty, is an intrusion; Fifield v.
Insurance Go., 47 Pa. St. 172, 86 Ajn. Dec 529, taking of vessel by priva-
teer of Gonfederate States does, not render insurers liable on policy, ex-
cepting capture ; Smith v. Brazelton, 1 Heisk. 58, 2 Am. Bep. 684, Gon-
federate States were entitled to same belligerent rights as the United
States ; Hawver v. Seldenridge, 2 W. Va. 283, 94 Am. Dec. 589, holding acts
of clerk of an insurrectionary, not acknowledged to be a de facto govern-
ment, void; United States v. Tropic, 28 Feg. Gas. 219, in statement of
case by judge.
Distinguished in dissenting opinion in Prize Gases^ 2 Black, 696, 17
L. Ed. 486, maintaining the President cannot recognize Givil War in case
of insurrection.
Nationality of ship belonging to newly elected State may be establislied
by same evidence as would prove it of regular State.
Gited in The Estrella, 4 Wheat. 304, 5 L. Ed. 57Q, holding connection of
vessel with unacknowledged government may be proved by other evidence
than by proving seal.
Judicial notice. Note, 89 Am. Dec. 686.
Miscellaneous. Gited in State v. Foster, 187 Mo. 605, 86 S. W. 249,
under Rev. Stats. 1899, § 2041, relating to bribery offense is misdemeanor,
though punishable by imprisonment in penitentiary; Ex parte De Vore, 18
N. M. 253, 136 Pac. 49, to point there is no common law in force under
authority of United States ; Folger*v. The Robert G. Shaw, 2 Wood. & M.
537, Fed. Gas. 4899, as an instance of where one side not appearing, court
proceeded to judgment; Pouty v. Insurance Go., 4 Mart. (La.) (N. S.) 83,
as to what is an act of war; United States v. New Bedford Bridge, 1 Wood,
& M. 488, Fed. Gas. 15,867, application doubtful; Miller v. United States,
11 Wall. 307, 20 L. Ed. 145, and The Amy Warwick, 2 Sprague, 133, Fed.
Gas. 341, to no specific point decided.
NOTES
ONTHB
UNITED STATES REPORTS.
\
IV WHEATON.
4 Wheat. 1^1, 4 L. Ed. 499, TBUSTEES OF PHn-ADELPHIA BAPTIST AS-
SOCIATION ▼. HABT.
An unincorporated society cannot take a charitable bequest as a society.
Approved in Miller v. Ahrens, 150 Fed. 657, and Stewart v. White, 128
Ala. 208, 55 L. R. A. 211, 30 South. 528, both following rule; Weaver v.
Spurr, 56 W. Va. 105, 48 S. E. 856, trust created by deed to trustees to be
held in trust for Trinity Parish in certain town is void for uncertainty of
purpose and as to beneficiaries; dissenting opinion in Snowden v. Crown
Cork & Seal Co., 114 Md. 667, Ann. Oas. 1912A, 679, 80 Atl. 516, majority
sastaining gift of corporation stock to unincorported association; Greene
V. Dennis, 6 Conn. 301, 16 Am. Dec. 64, holding invalid a bequest in trust
to "yearly meeting of i)eople called Quakers'*; McCord v. Ochiltree, 8
Blackf. 16, holding invalid devise in trust to a theological seminary for
benefit of "pious indigent youths"; Acklen y. Franklin, 7 La. Ann. 415,
holding inoperative devise in praesenti to unincorporated orphanage; so
also in Succession of Hardesty, 22 La. Ann. 333, holding further that such
devise is not made effectual by subsequent incorporation; State v. Warren,
28 Md. 352, 353, 354, denying validity of a bequest to an unincorporated
church society; so also in Church etc. v. Smith, 56 Md. 393, to same effect;
Owens V. Missionary Sociky, 14 N. Y. 384, 385, 67 Am. Dec. 161, 162, under
facts similar to those in principal case ; Trustees v. Adamsr; 4 Or. 83, hold-
ing that voluntary society cannot take an estate in fee; Stonestreet v.
Doyle, 75 Va. 366, 40 Am. Rep. 732, holding invalid bequest to trustees
for benefit of poor children, incorporation not having been contemplated
by testator; Fink v. Fink, 12 La. Ann. 321, arguendo.
Criticised and denied in following cases asserting that such society can
so take; Carter v. Balfour, 19 Ala. 825, 826, 827, 828, 829, Johnson v.
Mayne, 4 Iowa, 189, 192, Sewall v. Cai-gill, 15 Me. 420,» Bartlett v. Nye,
4 Met. 380, Missouri etc. Soc. v. Academy of Sciences, 94 Mo. 467, 8 S. W.
348, Hadden v. Dandy, 51 N. J. Eq. 160, 26 Atl. 466, Pearsall v. Post, 20
Wend. 118, Baptist Church v. Witherell, 3 Paige Ch. 300, 24 Am. Dec. 225,
Wright V. Trustees, 1 Hoff. Ch. 239, Williams v. Presbyterian Church, 1
(847)
/
\
4 Wheat. 1-51 NOTES ON U. S. REPORTS. 848
Ohio St. 500, Bates v. Taylor, 28 S. C. 481, 6 S. E. 330, Dye ▼. Beaver
Creek Church, 48 S. C. 455, 59 Am. St. Bfep. 728, 26 S. E. 721, and dis-
senting opinion in Green v. Allen, 5 Humph. 216, 222, 223, 228, 231, 237.
Distinguished in Penny v. Central Coal & Coke Co., 138 Fed. 774, where
unincorporated religious society had had uninterrupted possession of land
in controversy for over thirty years and had used it as its own under lost
deed, it is presumed that legal title conveyed to trustees for its benefit;
Magill v. Bro:wrn, 16 Fed. Cas. 413, 414, 416, under statute; Miller v. Chit-
tenden, 4 Iowa, 270, where devise to unincorporated society indicated
intention that it was to take effect upon incorporation; so also in Milne
V. Milne, 17 X«a. 57, to same effect; Von der Volgen v. Tates, 3 Barb. Ch.
245, holding that under devise to unincorporated lodge, such lodge may
take beneficial interest; Kelley v. Bourne, 16 Or. 480, 16 Pac. 43, where
devise was to partnership; Pennoyer v. Wadhams, 20 Or. 279, 25 Pac.
722, holding that unincorporated church society may take beneficial inter-
est under specific trust; in In re John's Will, 30 Or. 517, 47 Pac. 349, to
same effect; Literary Fund v. Dawson, 1 Rob. (Va.) 418, holding valid a
devise made to vest upon incorporation of society; Episcopal Society v.
Churchman, 80 Va. 765, 766, 767, 768, where society had become incorpo-
rated before time when devise was to take effect.
Disapproved in Estate of Winchester, 133 Cal. 277, 54 L. E. A. 281,
65 Pac. 477, holding regularly unincorporated educational society ban take
a bequest by will; Ould v. Washington Hospital for Foundlings, 1 McAr,
(D. C.) 550, 29 Am. Rep. 606, holding valid will devising fourteen lots
to city of Washington for site for hospital for foundlings to be erected by
any association that might thereafter be incorporated by Qongress, land
to be conveyed by city in fee to such association.
Power of corporation to act as trustee of charitable trust. Note, 8
Ann. Oas. 1183.
Validity df gift to unincoiT)orated charity. Note, 32 L. B. A. 626, 628.
Estate may be granted subject to any condition not in Itself lllegaL
Cited in Atwood v. Beck, 21 Ala. 623, where testator had bequeathed to
slaves certain sums, to be delivered to them upon their removal to free
State and court refused to enjoin executor from io removing them ; Ross v.
Duncan, 1 Fre^pfi. Ch. 603, holding valid as trust direction in will for
liberation and transportation of slaves to Liberia ; Wade v. American etc.
Soc, 7 Smedes & M. 695, 45 Am. Dec. 328, arguendo.
Trust for charitable uses, where no legal interest vested and which is too
vague to be claimed by those for whom beneficial interest intended, cannot be
established by equity.
Approved in McCue v. Northwestern Mut. Life Ins. Co., 167 Fed. 442,
93 C. C. A. 71, following decision of State court in construing mutual life
insurance policy; Kuhn v. FairmonJ; Coal Co., 152 Fed. 1016, following
decision of State court denying liability of grantee under deed to coal to
sustain surface, in construing similar de^^d; Miller v. Ahrens, 159 Fed. 653,
holding trust created by will for benefit of foreign religious corporation,
849 TRUSTEES OF PHILA. BAPT. ASSN. v. HART> 4 Whe^. 1-51
involving demise of three hundred and fifty-one acr^ of land in West
Vii^nia, is contrary to public policy of that State; District of Columbia
V. Washin^on Market Co., 3 MoAr. (D. C.) 578, holding invalid trust
created for benefit of "poor of city of Washington and of District of
Columbia"; Morris' Exrs. v. Morris' Devisees, 48 W, Va. 437, 37 S. E. 573,
upholding bequest for payment of salary of minister of certain church,
where testator had been trustee of fund. for payment of such salary; dis-
senting opinion in .Allen v. Stevens, 161 N. Y. 151, 55 N. E. 576, majority
holding that Laws of 1893, chapter 701, restored old law of charitable
trusts; dissenting opinion in Danforth v. Oshkosh, 119 Wis. 290, 97 N, W.
268, majority holding where lan4 devised to trustees to be conveyed to city
foar library, city took fee and did not hold land in trust; Wl\|eeler
V. Smith, 9 .How. 79, IS L. ISd. 54, holding void, bequest to trustees
for "such purposes as they consider will be most beneficial to city,"
etc.; Fountain v. Ravenel, 17 How. 384, 389, 15 L; £d. 86, BQ, refusing
to give effect to charity, object of which was not designated dur-
ing the lifetime of executors as directed by testator (but see dissenting
opinion, pp. 392, 394, 395, 15 L..Ed. 90, 91); Kain v. Gibjioney, 101 U. S.
366, 367, 25 L. Ed. 8]L4, ruling similarly as to bequest to bishop "for use
anda benefit of community"; Barnes v. Barnes, 3 Cr. C. C- 275, Fed. Cas.
1014, where devise was in trust for "poor and necessitous widowi^ within
corporation of Georg^own"; Moade v. Beall, Taney, 359, 362, Fed. Cas.
9371, following rule ; Soard of Foreign Missions v.- ^cMaster, 3 Fed. Cas.
783, holding void for uncertainty- bequest with directions to executor to
apply it to support of "foreign missions in India" ; White y. Fisk, 22 Conn.
55, holding void a devise in trust for "indigent pious young men of Hart*
ford" ; Starkweather v. American Bible Society, 72 111. 57, 22 Am. Rep. 138,
holding that where corporation is prohibited in State where organized*
from holding real estate equity will not, in another State, convert devise
of lands into money by application of cy pres; Le Page v. McNamara, 5
Iowa, 146, holding invalid bequest in trust to bi9hop for education and
maintenance of poor children; Dashiell v. Aj|ttomey General, 5 Har. & J.
398, 9 Am. Dec. 573, ruling similarly as to devise to trustees for benefit
of "poor of St. Peter's parish"; Bascom v. Albertson, 34 N. Y. 603, 604,
606, 607, applying principle in holding that bequest for purpose of found-
ing charity to such persons as court of another State may appoint to receive
it, is invalid for any purpose if unlawful in State of domicile; Gallego's
Heirs v. Attorney General, 3 Leigh, 462, 468, 24 Am. Dec. 655, 660, and
Seaburn v. Seaburn, 15 Gratt. 426, under facts similar to those in prin-
cipal case ; Wilson v. Perry, 29 W. Va. 188, 194, 195, 196, 1 S. E. 316, 320,
321, 322, holding invalid devise in trust for "Presbyterian church in the
United States"; Pack v. Shanklin, 43 W. Va. 314, 318, 27 S. E. 393, 395,
where devise was to "Trustees of Home and Foreign Missions of the Souths
em Presbyterian Church"; White v. Keller, 68 Fed. 803, Beckwith v.
Rector, 69 Ga. 574, Grimes v. Harmon, 35 Ind. 230, 231, 232, 237, 9
Am. Rep. 714, 715, 716, 719, McCartee v. Orphan Asylum, 9 Cow. 487;
Williams v. Williams, 8 N. Y. 541 , Levy v. Levy, 33 N. Y. 109 , Pell v.
1—54
4 Wh^t. 1-51 NOTES ON U. S. REPORTS. 860
Mercer, 14 R. I. 436^ Commonwealth v. Levy, 23 Gratt. 40, and Knox v.
Knox, 9 W. Va. 144, arguendo.
Criticised and denied in following cases, asserting doctrine of cy pres:
Estate of Hinckley, 58 Cal. 490, 492, 498, 606, Tappan v. Deblois, 45
Me. 130, 131, Jackson v. Phillips, 14 Allen, 688, 689; Chambers v. St.
Louis, 29 Mo. 687, Hutchins v. Geoige, 44 N. J. Eq. 126; Derby v. Derby,
4 R. I. 435, Shields v. Jolly, 1 Rich. Eq. 106, 108, 42 Am. D^. 350, 352,
353, dissenting opinion in Green v. Allen, 5 Humph. 216, 222, 223, 228, 231,
237, Bell County v. Alexander, 22 Tex. 360, 362, 73 Am. Dec. 272, 278, Pas-
chal V. Acfclin, 27 Tex. 200, Burr v. Smith, 7 Vt. 302, 29 Am. Dec. 184, and
Ould V. Washington Hospital, 1 McAr. 541, 29 Am. Rep. 610.
Distinguished in John v. Smith, 102 Fed. 223, upholding trust for ibee
public schools in certain town ; Hays v. Harris, 73 W. Va. 2()j 21, 80 S. E.
829, holding valid under Code of 1906, chapter 57, section 3, residuary
bequest for establishment of hospital; also in following cases, holding rule
inapplicable where devise or bequest is to certain designated trustees for
benefit of persons to be ascertained by them ; Inglis v. Trustees, 3 Pet. 114,
7 L. Ed. 623 (but see dissenting opinion, p. 149, 7 L. Ed. 635), Vidal v.
Girard's Executors, 2 How. 192, 194, 196, 11 L. Ed. 232, 233, Prim v. Carey,
24 How. 501, 16 L. Ed. 710, Russell v. Allen, 107 U. S. 167, 168, 27 L.'Ed.
399, 2 Sup. Ct. 330, 331, Bull v. Bull, 8 .Conn. 50, 20 Am. Dec. 88, Woodniflf
v. Marsh, 63 Conn. 137, 38 Am. St. Rep. 856, 26 At^ 851, State v. Griffith,
2 Del. Ch. 414, 416, 419, 465, Wade v. American etc. Soc, 7 Smedes & M.
695, 45 Am. Dec. 328, Hasketh v. Murphy, 36 N. J. Eq. 311, Potter v.
Chapin, 6 Paige, 649, San Antonio v. Odin, 16 Tex.^545, Row v. Rowzie, 25
Gratt. 607, and Trustees v. Guthrie, 86 Va. 145, 146, 148, 151, 10 S. E. 324,
325, 326. Also in following cases under statutes re-enacting the statute 43
' Eliz. : American Bible Society v. Wetmore, 17 Conn. 188, Gass v. Wilhitc,
2 Dana, 182, 26 Am. Dec. 456 (but see dissenting opinion, 2 Dana, 185),
Moore v. Moore, 4 Dana, 357, 360, 29 Am. Dec. 420, 423, Going v. Emery, 16
Pick. 114, 117, 26 Am. Dec. 648, 651, American Academy v. Howard College,
12 Gray, 593, and Griffin v. (fTraham, 1 Hawks, 128, 129, 9 Am. Dec. 623,
624.
Limited in Kurtz v. Beatty, 2 Cr. C. C. 700, Fed. Cas. 7950, holding where
land thus imperfectly devised has been long occupied for uses contem-
plated, heirs of devisor will be enjoined from disturbing possession ; Carter
v. Balfour, 19 Ala. 825, 826, 827, 828, 829, holding where beneficiaries arc
sufficiently described, so as to be ascertainable, devise will be sustained; so
also in Williams v. Pearson, 38 Ala. 304; State v. Griffith, 2 Del. Ch. 414,
416, 419, 465, holding where trustees are determinable by Probate Court
devise is valid, although beneficiaries uncertain.
Disapproved in Clayton v. Hallett, 30 Colo. 243, 70 Pac. 433, 59 L. R. A.
407, upholding devise for establishment of college; Burke v. Burke, 259 111.
270, 102 N. E. 296, holding valid bequest to unincorporated church parish
for parish school; Neptune Fire Engine etc. Co. v. Board of Edu-
cation, 166 Ky. 7, 178 S. W. 1140, holding volunteer fire company incor-
porated under act of March 24, 1851, and whose charter was amended by
act- of April 24, 1884, not public charity corporation within Ky. Stats.
851 THE DIVINA F^ASTORA. 4 Wheat. 62-73
§ a23j Buchanan v. Eetinard, 224 Mo. 135, Ann. Gas. 19121), 50, 87 L. B. A.
(N. fl.) 993, 136 S. W. 419, holding valid donation recognized as public
charity prior to such statute, {hough not within terms of those enumerated
therein ; In re Nildon's Estate, 81 Neb. 821, 116 N. iiT. 976, holding valid
^ bequest by native of island of Norway to church of island, for annual dis-
tribution to ''needy servant girls and widows and orphans of deceased
sailors and fishermen who are not public chaise"; St. James Orphan
Asylum v. Shelby, 60 Neb. 802, 84 N. W. 275, holding cy pres doctrine has
no part in administration of courts; Roller v. Murray, 107 Va. 542, 59
S. E. 426, holding law of State governs validity of champertous contract
sued on in Virginia; In re Stewart's Estate, 26 Wash. 37, 66 Pac. 149,
upiiolding devise in trust for proposed sectarian college, erection of which
is to be hotne by church; Deepwater Ry. Co. v. Honaker, 66 W. Va. 142,
27 L. B. A. (N. S.) 388, 66 S. E. 107, holding valid conveyance of land to
trustees for benefit of religious sect as place of worship; Harrington v.
Pier, 106 Wis. 516, 517, 76 Am. St. Rep. 948, 50 L. R. A. 807, 82 N. W,
356, upholding trust for promotion of temperance work in a certain city.
Perpetuities which are forbidden in the United States. Note, 90 Am.
Dec. 106.
Enforcement of general bequest for charity or religion. Note, 14
L. R. A. (N. S.) 53, 55, 114, 122.
Law governing validity of testamentary gift to foreign charity, and
administration thereof. Note, 20 Ann. Oas. 866.
Miscellaneous. Cited in Bandel v. Church, 82 Fed. 262, to point that
equity jurisdiction extends to action to recover legacy; Christian Church
V. Scholte, 2 Iowa, 30, but application doubtful; O'Connor v. Gifford, 117
N. Y. 281, 22 N. E. 1038, to point that property given to trustees under
void trust is to be held bj*^ them as trustees for those persons to whom the
law or provisions of will give property which is not disposed of; Loring
v; Marsh, 2 Cliff. 492, Fed. Cas. 8515, to point that where question involves
construction of Stale statute concerning lands Federal courts will adopt
the construction made by State courts.
4 Wheat. 62-73, 4 L. Ed. 512, THE DIVINA PASTOBA.
Recognition of foreign States Is a political function.
Approved in In re McConaughy, 106 Minn. 414, 415, 119 N. W. 416,
417, holding statement and certificate of State canvassing board and
Governor's proclamation that constitutional amendment was adopted not
conclusive on judiciary; Cherokee Nation v. Georgia, 5 Pet. '47, 8 L. Ed. 41,
holding Cherokee Nation not to be foreign State for purpose of suing in
f United States courts. Congress not having recognized them as such in
treaty; Scott v. Jones, 5 How. 374, 12 L. Ed. 196, denying jurisdiction of
courts to inquire into validity of organization of State governments under
act of Congress; dissenting opinion in Luther v. Borden, 7 How. 57,
12 L. Ed. 605, concurring with majority on point that as between conflict-
ing governments in State, recognition of rightful one is function of Con-
/
4 Wheat. 62-73 , NOTES ON U. S. REPORTS. / 852
gress ; Jones v. United States, 137 U. S. 212, 34 L. Ed. 696, U Gup. Ct. 83,
holding that . courts are bonnd to take cognizance of proelamation by
President of sovereignty over guano island and that Federal courts have
jurisdiction of crime committed on such island; The Hornet, 2 Abb. (U. S.)
39, Fed. Cas. 6705, denying right of United States courts to recognize
insurgents as parties in judicial proceedings until their recognition as
rightful government by executive; The Ambrose Light, 25 Fed. 429, as to
I'ecognition of belligerency; The James G. Swan, 50 Fed. Ill, holding that
Congress having assumed jurisdiction and sovereignty over Beh^ing Sea,
Federal courts are bound to exercise jurisdiction over seizures made in
such waters; United States v. Packages, 27 Fed. Cas. 289, holding act
prohibiting commercial intercourse with insurrectionary States continues
in force until declaration by President of cessation of hostilities; so also
in United States v. Cement, 27 Fed. Cas. 293, and United States v. Cotton,
27 Fed. Cas. 329, construing same act ; Kelly v. State, 25 Ark. 398, denying
jurisdiction of courts to determine regularity of organization of State
government under reconstruction acts; Perkins v. Rogers, 35 Ind. 156,
9 Am, Rep. 664, holding statute of limitations to be suspended during
state of war until proclamation of cessation of hostilities; Martin v.
Hortin, 1 Bush (Ky.), 631, holding that currency recognized by govern-
ment of Confederate States as money must be so recognized by courts as
against person who took it as such; dissenting opinions in In re Gunn,
50 Han. 231, 32 Pac. 954, Price v. Poynter, 1 Bush (Ky.), 391, and Smith
v. Brazelton, 1 Heisk. 58, 2 Am. Rep. 684, arguendo.
Distinguished in dissenting opinion in Prize Cases, 2 Black, 696, 17
L. Ed. 486, , majority affirming validity of proclamation of blockade issued
• by President.
I«egality of seizure as between foreign belligerents cannot be subject of
inquiry in courts of neutral country.
Cited in The Nuestra Senora de la Caridad, 4 Wheat. 502, 4 L. Ed. 625)
restoring to original captor vessel brought within jurisdiction of the United
States by United States vessel; The Schooner Chapman, 4 Sawy. 512,
Fed. Cas. 2602, arguendo.
Proof must conform to aUegatlons.
Cited in Garland v. Davis, 4 How. 148, 154, 11 L. Ed. 915, 917, holding
that plea must conform to declaration and setting aside verdict in action
on case following plea of non assumpsit.
«
Where pleadings are defective as to form, court on appeal will, remand
cause for further proceedings, with directions to permit amendments.
Approved in Graham v. Oregon etc. Co., 134 Fed. 693, court may permit
libel in admiralty to be amended to show jurisdiction ; Mossberg v. Nutter,
124 Fed: 967, dismissing ajJpeal without prejudice where judge who en-
tered interlocutory injunction appealed from asked return of record to
permit filing of supplemental bill in nature of bill of review; Greene v.
United Shoe Mach. Co., 124 Fed. 962, refusing to remand without isversal
wiiere applicant wishes to reopen case for further proceedings; New Jersey
V
863 NOTES ON U. S. REPORTS. 4 Wheat. 73^77
/'
etc. Co. V. Bank, 6 How* 434, 12 L. Ed^ 504, and the Martha, 1 Blatchf. &
H. 166, Fed. Gas. 9144, as instance of such practice; Anonymous, 1 Gall.
. 26, Fed. Gas. 444, allowing amendment in proceeding in rem brought to
Circuit Gourt from District Court by appeal; Bieren v. The Triumph, 2
Ala. 742, holding that mere omission to issue or serve writ of monition is
npt sufficient cause to warrant dismissal of libeL
Jurisdiction and powers of consuls. Note, 45 L. R. A. 496.
Miscellaneous. Cited in The Ship Adolph^ 1 Curt. 89^ Fed. Gas. 86, but
application doubtful.
4 Wiheat. 73-74, 4 L. Ed. 516, EVANS ▼. PHTLUPS.
Writ of error will not lie on judgment of nonsuit.
Approved in Francisco v. Chicago etc. R. Co., 149 Fed. 355, 356, where
at close of trial defendant's motion for instructed verdict granted, but
before instruction given plaintiff took involuntary nonsuit, latter could npt
appeal; Parks v. Southern Ry. Co., 143 Fed. 278, and Huntt v^ McNamee,
141 Fed. 295, both holding where voluntary nonsuit was permitted by State ,
practice, Federal court has discretion to refuse nonsuit after plaintiff had
concluded evidence and motion of defendant for direction of verdict had
been sustained; Imley v. Beard, 6 Gal. 666, dismissing appeal from judg-
ment of nonsuit entered on motion of plaintiff; State Bank v. Hayes, 3
Ind. 401, dismissing appeal from judgment in action voluntarily aban-
doned; so also in Marsh v. Graham, 6 Iowa, 78, and Brown v» Johnson, 1
Doug. (Mich.) 187.
Modified in Central etc. Go. v. Pullman etc. Co., 139 U. S. 39, 3& L. Ed.
61, 11 Sup. Ct. 480, holding that writ of error will lie where compulsory
nonsuit is entei^ed under statute because of insufficiency of evidence.
Distinguished in Proctor & Gamble Co. v. Blakeley Oil etc. Co., 128 Ga.
615, 57 S. E. 883, holding, where plaintiff offers evidence essential to case,
which is excluded, and he declines to introduce further evidence, he may
except from directed verdict for defendant; Schulte v. Kelly, 124 Mich.
332, 83 N. W. 406, holding no appeal lies from dismissal for failure to
apx>ear on day to which cause was adjourned.
Right of plaintiff to appeal from voluntary judgment of nonsuit.
Note, 9 Ann. Cas. 631.
4 "Wheat. 74-77, 4 !•. Ed. 516L VAN NESS ▼. BTTEIi.
Collector seizing for forfeiture acquires vests right absolutely upon final de-
cree of condemnation and his removal from office cannot deprive him of it.
Cited in United States v. Harris, 1 Abb. (U. S.) 116, Fed. Cas. 15,312,
holdii^ that after decree power of remission Extends only to share of gov-
ernment^ The City of Mexico, 32 Fqd. 107, holding that under statute
awarding informer share in forfeiture, to entitle informer to such share
seizure must be made on his information; Lapham v. Almy, 13 Allen, 304,
and Rice v. Thayer, 105 Mass. 261, 7 Am. Rep. 519, on point that informer
/
4 Wheat. 77-83 NOTES ON U. S. REPORTS. / 854
may sue collector for share in f brfeiture after decree of court ordering pay-
ment of funds to collector. •
Distinguished in United States v. Morris; 10 Wheat. 289, 6 L. Ed. 324«
holdi;ig that such right is subject to power of Secretary of Treasury to
remit forfeiture; so also in United States v. Lancaster, 4 Wash. C. C. 66,
Fed. Cas. 16,557, Hoyt v. United States, 10 How. 138, IS L. Ed. 860, hold^
ing that such right under revenue laws does, not extend to share of duties
due upon goocls seized.
Explained in Confiscation Cases, 7 W^IL 461, 19 L. Ed. 199, holding snch
right subject to power of attorney general to move for dismissal of libel.
Miscellaneous. Cited in In re Nevitt, 117 Fed. 459, holding President
cannot pardon contempt in refusing to obey mandamus; erroneous!^ in
United States v. Girault, 11 How. 32, 13 L. Ed. 592.
/
4 Wheat. 77-83, 4 I.. Ed. 518, WIIiLIAMS ▼. PEYTON'S IJSSSEE.
In case of mere naked power not coupled with interest, every prerequisite
to exercise of such power must precede its exercise.
^ Approved- -in Commercial Bank of Augusta v. Sandford, 103 Fed. 100,
holding tax statutes must be strictly construed; Bent-Otero Imp. Co. v.
Whithead, 25 Colo. 357, 358, 71 Am- St. Rep. 143, 54 Pac. 1024, holding
caveat emptor applies to sales by trustee under deed of trust; Kenney v.
Jefferson County Bank, 12 Colo. App. 34, 54 Pac. 408, holding indorsee of
notes need not take assignment of trust deed which secures them from
beneficiaries in order to protect himself from purchaser under void sale
by trustee; Baum v. Wm. Knabe & Co. Mfg. Co., 33 App. D. C. 241, hold-
ing invalid sale of piano held in storage; Whitehurst v. Mason, 140 Ga.
150, 78 S. E. 939, holding void sale by administrator of intestate's personal
property made without leave of court first obtained; dissenting opinion in
Beggs V. Paine, 15 N. D. 464, 109 N. W. 334, majority holding purchaser
at valid tax sale pursuant to chapter 132, page 376, Laws of 1899, acquired
actual ownership as soon as right of redemption was terminated, notwith-
standing no deed in proper form was delivered; Deputron v. Young, 134
U. S. 257J 33 L. Ed. 930, Sup. Ct. 545, folding that where owner of land
authorizes third party to execute conveyances to purchaser, conveyance to
other than such purchaser is fraud on power and void; Fort Smith v.
Dodson, 51 Ark. 452, 14 Am. St. Rep. 65, 11 S. W. 689, construihg statute
providing for sale of impounded animals; Kenney v. Jefferson County
Bank, 54 Pac. 408, holding void trust deed executed by trustee in excess
of his authority, and Bent-Otero Co. v. Whitehead, 54 Pac. 1024, is to
same effect; Dorrance v. Raynsford, 67 Conn. 6, 52 Am. St.~Rep. 267, 34
Atl. 707, holding that party claiming under deed executed by administrator
is bound to show administrator's authority; Shippen v. Whittier, 117 111.
289, 7 N. E. 645, holding that where authority to sell is conditioned on
existence of debt, grantee must show such debt; Dement v. Rokker, 126
111. 194, 19 N. E. 40, construing grant of power to State officers to contract
for State printing; Williamson v. Crawford, 7 Blackf. 14, holding com-
missioner's sale of lands mortgaged to secure loan of school 'funds void
855 WILLIAMS v. PEYTON'S LESSEE. 4 Wheat. 77-33
\
in absence of proof of authprity to sell; Matthews v. Gilliss, 1 lowaj 251,
holding void a sale on credit, agent's authority having stipulated for cash
sales; Potter v. Wellsy 6 Kan. 455, holding sheriff's de^d executed in
foreign State not admifsible in evidence without proof of authority to
execute it; Dufour v. Camfranc, 11 Mart. (La.) (0. S.) 611, 13 Am. Dec.
363, holding void deed to lan4 sold under execution in absence of recital
of judgment on which execution based; Phillips v. Burrus, 13 Smedes &
M. 38, as to sale of school lands by commissioners under statute; Gordon
V. Edson, 2 N. H. 153, on point that sheriff is liable for escape of prisoner
released on bond for less amount than required by statute; Eastman v,
Burleigh,. 2 N. H. 487, holding t^at under statute providing for reference,
party undertaking to enter into agreement to. refer on behalf of himself
and another, must show authority; State v. Kidd, 63* Wis. 344, 23 N. W.
706, construing strictly statute providing for division of school districts;
Parcel v. Barnes, 26 Ark. 267, Breit v. Yeaton, 101 111. 267, Rogers v.
Barnes, 169 Mass. 184, 47 N. E. 604, and dissenting opinion in Curtis v.
Leavitt, 15 N. Y, 189, arguendo.
Distinguished in Taylor v. Benham, 5 How. 272, 12 L. Ed. 149, where
power of executor to sell land was held to be coupled with interest in lan4;
Speigle V. Meredith, 4 Biss. 122, Fed. Gas. 13,227, holding that power to
sell implies power to sell on credit; Savings and Loan Society v. Deering,
66 Cal. 285, 5 Pac. 356, holding recitals, in deed executed by trustee to be
prima facie evidence of facts recited ; Watson v. Watson, 10 Conn. 87, hold-
ing deed of executor not to be void because of mere irregularity in setting
forth authority to sell; Patterson v. Lemon, 50 Ga. 235, holding that admin-
istrator's sale is not avoided because of mere irregularity; Hutchins v.
Lee, Walk. (Miss.) 294, holding statutory provisions as to sale of fugitive
slaves to be merely directory and sale not avoided because of mere irregu-
larity; Minor v. Natchez, 4 Smedes & M. 627, 43 Am. Dec. 495, where cxe-
fution s^le held not to be invalidated by mere irregularity in proceedings;
in Helen v. Natchez Ins. Co., 8 Smedes & M. 209, to same effect; Davany
V. Eoon, 45 Miss. 75, holding that statute regulating sales of school lands
by commissioners should be construed liberally so that sales will not be
invalidated; Rollins v. Mclntire, 87 Mo. 509, holding that mere failure to
record town plot as required by statute will not render invalid a sale of
land to an innocent purchaser.
Party claiming under tax deed is bound to show that all prerequisites of
law have been complied with. /
Approved in McMahon v. Crean, 109 Md. 666, 71 Atl. 997, and Columbia
Finance & Trust Co. v. Fierbaugh, 59 W. Va. 338, 53 S. E. 470, both fol-
lowing rule; dissenting opinion in State Finance Co. v. Beck, 15 N. D. 385,
109 N. W. 361, majority holding certificate becomes conclusive evidence of
valid sale if not attacked by action within three years; Early v. Doe, 16
How. 618, 14 L. Ed. 1082, holding sale void where notice not given as re-
quired by statute) United States v. Pacific R. R. Co., 1 McCrary, 7, 1 Fed.
102, where in action to enforce lien under act of Congress for taxes due
United States, lien held not to have attached because of failure to give re-
\
/
4 Wheat. 77-83 NOTES ON U. S. REPORTS. 856
quired notiee; Mayhew v. Davis, 4 McLean, 222, Fed. Oas. 9347, holding
sale void where previous demand for payment of taxes not made as re-
quired by statute; Arrowsmith v. Burlingim, 4 McLean, 49^ Fed. Cas.
563, setting aside sale in absence of positive proff of regularity; Tolmie
v. piompson, 3 Cr. C. C. 130, 134, Fed. Cas. 14,080, on point that proceed-
ings in derogation of common law are to be strictly pursued in holding
void partition unconfirmed by court; Daniels v. Case, 46 Fed. 846, holding
void tax deed failing to state that sale was made publicly as required by
statute prescribing form for such deeds; Darrington v. Borland, 3 Port.
25, as to sale made without required notice ; Pope v. Headen, 5 A1&. 434,
under facts similai^to principal case; Ly#n v. Hunt, 11 Ala. 31I|, 46 Am.
Dec. 222, setting aside sale where advertisement of sale under statute
failed to describe property; Scales v. Alvis, 12 Ala. 619, 46 Am. Dec. 270,
holding that where statute provides that sale of lands for delinquent taxes
shall not be made while debtor has "goods and chattels** within county,
party claiming under deed must show such state of facts as will authorize
sale; Wood v. Lake, 62 Ala. 490, setting aside sale where purchaser failed
to J)rove advertisement of notice; Keane v. Cannovan, 21 Cal. 299, 82
Am. Dec. 741, holding further thftt statute making tax deed prima facie
evidence of regularity of sale cannot operate retrospectively; People v.
Holladay, 25 Cal. 309, on point that in action to recover taxes, collector
must show that assessment has been regular; Dickerson v. Acosta, 15 Fla.
620, holding that under Federal statute providing for forfeiture of prop-
erty for nonpayment of taxes, forfeiture was not complete until sale made
pursuant to act; D'Antignac v. Augusta, 31 Ga. 710, setting aside sale
where demand for payment of taxes not made as required by statute;
Johnson v. Phillips, 89 Ga. 286, 15 S. E. 368, holdiifg that statute providing
that tax deed executed by State officer shall be prima facie evidence of
regularity of sale, does not apply to such deed executed by municipal offi-
cer; Curtis V. Doe, Breese, 142, denying right of plaintiff in ejectment to
recover under tax deed failing to state that land was. appraised as re-
quired by statute; Fitth v. Pinckard, 4 Scam. 79, setting aside sale where
notice insufficient under statute; Scott v. Babcock, 3 G. Greene, 141, hold-
ing tax deed not admissible in evidence without proof of regularity of pre-
liminary proceedings; Taylor v. Whiting, 2 B. Mon. 272, 276, following
rule ; so also in Alexandei;^v. Walter, 8 Gill, 260, 50 AnL Dec. 701, to same
effect; Hamilton v. Valiant, 30 Md. 140, holding sale void for want of
notice required by statute; Steuart v. Meyer, 54 Md. 466, to same effect;
Forster v. Forster, 129 Mass. 561, holding unconstitutional, statute pur-
porting to establish title held under tax deeds which were void for want of
notice ; Burke v. Burke, 170 Mass. 500, 49 N, E. 754, holding tax deed not
prima facie evidence of recitals contained in it; Rowland v. Doty, Harr.
Ch. (Mich.) 10, holding sale void upon a showing that taxes were already
paid; St. Anthony's Falls etc. Co. v. Greely, 11 Minn. 325, holding sale
void where demand for taxes not made as provided by statute; Hodge v.
Wilson, 12 Smedes & M. 505, where property not sold by "designated
eighths" as provided by statute; Morton v. Reeds, 6 Mo. 73, denying
validity of sale in absence of proof of regularity of assessment; Reeds v.
Morton, 9 Mo. 885 (875),^ citing principal case to same effect; Cahoon v.
857
WILLIAMS V. PEYTON'S LESSEE. 4 Wheat. 77i^
Coe, 57 N. H. 570, 576, holding sale void in abseilce o£ proof that notice
was posted as required by statute; Todd v. Pilhower, 24 N. J.. L. 807, hold-
ing sale void because of defective description in advertisement; Hopper
V. Malleson, 16 N. J. £q. 384, holding sale void where assessment not
proved; Jackson v. Shepard, 7 Cow. 90, 91, 17 Am. Dec. 504, 505, ruling
similarly where notice not proved; Jackson v. Esty, 7 Wend. 149, holding
that notice cannot be waived by occupant who has no interest in land to
be sold; Jackson v. ^Roberts, 11 Wend. 434, holding sale void where default
in payment of taxes not proven; Sharp v. Speir, 4 Hill, 86, densang
validity of sale in absence of proof of legality of assessment; Hubbell v.
-Welden, Lalor's Supp. to Hill & D. 145, where assessment was not made
as required by statute; Sherwood v. Reade, 7 Hill, 434, holding sal^ void
because of insufficienoy of notice; Brown v. Goodwin, 75 N. Y. 414, )ioldX
ing United States collector's deed not to be prima facie evidence of right
to sell; Fox v. Stafford, 90 N. C, 301, ruling similarly in case of sale by
revenue officer; Lafferty v. Byers, 5 Ohio,* 458, holding sale void because
of defect in description; Yenda v. Wheeler, 9 Tex. 417, where sale held
void because of failure to post copy of assessment-roll as required by
statute; Robson v. Osborn, 13 Tex. 307, holding that statute making tax
deed prima facie evidence of regularity of sale, did not make such deed
evidence of authority to sell; Hall v. Collins, 4 Vt. 324, under facts
similar to those in principal case ; Brown v. Wright, 17 Vt. 99, 42 Am. Dec.
482, holding sale void where warrant of collector misrecited date of statute
by virtue of which tax was levied ; Nalle v. Fenwick, 4 Rand. 590, holding
sale void in absence of proof of statutory notice; Jesse v. Preston, 6
Gratt. 129, under facts similar to those in principal case ; Flanagan v.
Grinnett, 10 Gratt. 426, where sale held void because of insufficiency of
^notice ; Deguasie v. Harris, 16 W. Va. 353, construing strictly, statute mak-
ing tax deed prima facie evidence of regularity of sale ; Mutual etc.. Ins.
Co. v.. Tisdale, 91 U. S. 245, 23 L, Ed. 817, Sharpleigh v. Stirdam, 1 Flipp.
481, Fed. Cas. 12,711; Bloom v. Burdick, 1- Hill, 142, 87 Am. Dec. 307;
dissenting opinion in Register v. Bryan, 2 Hawks, 21, Hadley v. Tankersley,
8 Tex. 19, and Allen v. Smith, 1 Leigh (Va.), 250, arguendo.
Distinguished in Cooper v. Galbraith, 3 Wash. C. C. 552, Fed. Cas. 3193,
where debtor had previously waived objection to irregularity of proceed-
ings; also in following cases, under statutes providing that tax deeds
should be prima facie evidence of regularity of proceedings; Merrick v.
Hutt,^15 Ark. 338, Graves v. Bruen, 11 111. 437, Sibley v. Smith, 2 Mich.
496, Striker v. Kelley, 7 Hill, 25, and Huey v. Van Wie, 23 Wis. 616.
If validity of deed depends on matter In pals, party claiming under must
show performance.
Approved in Garth v: Arnold, 115 Fed. 472, holding conveyance in ex-
change for personalty is void where statute conferred power to sell "for
cash or on credit"; dissenting opinion in Delta Co. Land etc. X)o. v. Tall-
cott, 17 Colo. App. 340, 68 Pac. 993, majority holding when trustees' re-
lease, executed after maturity of note secured, recited payment and execu-
tion at payee's instance, an assignee of note, which had not in fact been
paid, cannot cancel release against subsequent mortgagee of land ; Ransom
y
\
4 Wheat. 84r-100 NOTES ON U. S, REPORTS. 858
v. Williams, 2 Wall. Sli, 17 L. Ed. 805, holding void a sale of lands u^dcr
execution, notice not having been given as required by statute; Bell v.
Skillicom, 6 N. M. 408, 28 Pac. 771, appljring principle in "holding that
where defendant, in ejectment to recover mining claim, defends on ground
that as owner of adjoining claim he followed lode whose apex was on his
claim, he is bound to show facts giving him such right; Smith v. Pratt,
lt3 Ohio, 550, to point that where exercise of jurisdiction depends on exist-
ence of fact outside the record, such fact must be proven to exist.
Distinguished ^n Cocke v. Halsey, 16 Pet. 86, 10 L. Ed. 896, holding that
where validity of deed depended upon recording by clerk of court, mere
irregularity in appointment of clerk did not affect deed.
Miscellaneous. Cited in Bruce v. Schuyler, 4 Gilm. 276, 46 Am. Dec. 498,
but application doubtful ; Gibson v. Mason, 5 Nev. 303, as instance of exer-
cise of power to collect taxes by summary process.
4 Wheat. 84^^85, 4 I.. Ed. 520, THE EZFEBIMENT.
DepoBittons taken on further proof, in one prize cause, cannot be invoked
Into another.
Cited in Stegner v. Blake, 36 Fed. 184, as instance where taking testi-
mony de bene esse was allowed in admiralty cause.
4 Wheat. 86-98, 4 !•. Ed. 520, WEiaHTMA19' v. OAIJ>WEIiI..
Question whether contract sul&ciently performed to remove it from statute
of ftands is for jury.
Cited in Ward v. Spelts„ 39 Neb. 812, 58 n! W. 427, holding further,
contract for sale of goods not wanting in mutuality because signed by
vendor only. See, also, Shields v. Alston, 4 Ala. 255, Fagan v. Faulkner,
5 Ark. 165 , Partridge v. ^Wilsey, 8 Iowa, 461, and Nichol v. Ridley, 5
Yerg. 65, 26 Am. Dec. 255, citing note to principal case as to what consti-
tutes suf&cient part performance to remove contract from statute.
Effect on sales of corporate stock of seventeenth section of statute of
• frauds and equivalent enactments. Note, 18 Ann. Gas. 599.
Miscellaneous. Cited in Sprague v. Hosie, 155 Mich. 33, ISO Am. St.
Rep. 558, 19 L. R. A. (N. S.) 874, 118 N. W. 499, holding shares of incor-
porated company already issued to be goffds within statute of frauds;
United States v. Cement, 27 Fed. Cas. 297, but not in point; Johnson v.
Watson, 1 Ga. 352, to point that statute of frauds has no application to
contract that has been performed on both sides.
4 Wheat. 98-100, 4 L. Ed. 522, THE SIBYI..
Amount of salvage is discretionary, and will not be altered on appeal except
tn case of gross error.
Approved, in Fountain v. Sawyer, 176 Fed. 92, 99 C. C. A. 612, and The
Trefusis, 98 Fed. 315, both following rule; Hunn v. J. D. Spreckels & Bros.
Co., 115 Fed. 57, holding where schooner sprang leak while being towed,
necessitating towing to port, service of tug in towing her in was salva$rc
service; The New Camelia, 105 Fed. 640, upholding award for towing
\
859 NOTES ON U. S. REPORTS. .4 Wheat. 100-107
ateamer with broken shaft; Ulster S. S. Co. v. Cape Fear Towing & Trans-
portation Co., 94 Fed. 219, holding- towage (ft vessel off of sand-bar are
salvage services; Sweet v. Chicago etc. Ry. Co., 157 Wis. 408, 147 N. W.
1057, sustaining award made by jury in action for damages for death
under Federal Employer's Liability Act; The Connem^ra, 108 U. S. 359,
27 Ii» Ed. 753, 2 Sup. Ct. 758, refusing to set aside decree awarding salvage
to passenger on board savii^ vessel ; Spreckels v. The Kenilworth, 14 Sawy.
386, 41 Fed. 525, afiirming award to vessel for salvage service in extin^^
gnishing fire; The Cherokee, 31 Fed. 173, and The Elmbank, 62 Fed. 319,
where amount of salvage held to be governed by circumstances; The R. R.
Rhodes, 82 Fed. 753, holding further, that request for aid by master of
sti^ded vessel does not reduce claim to one for serviceis rendered under,
contract ; Spear v. Place, 11 How. 528, 13 L. Ed. 799, arguendo.
Distinguished in The, Schooner Emulous, 1 Sumn. 215, Fed. Cas. 4480,
altering decree where allowance was clearly excessive.
Review of salvage award. Note, 20 Ann. Oas. 563, 564.
Salvage money, while In possession of coort, may be subjected to maritime
dainu or liens.
Cited in United States v. Mackoy, 2 Dill. 308, Fed. Cas. 15,696, holding
that while fund arising from sale of property under condemnation pro-
ceedings is in District Court, Circuit Court cannot withdraw it or direct
its distribution ; China etc. Ins. Co. v. Force, 142 N. Y. 98, 40 Am, St. Rep.
581, 36 N. £. 876, holding that upon sale of wrecked vessel liens against
her are transferred to proceeds of such sale.
Miscellaneous. Cited also in Baltimore etc. R. R. Co. v. Mackey, 157
U. S. 87, S9 L. Ed. 629, 15 Sup. Ct. 495, but application doubtful.
4 Wheat. 100-103, 4 It. Ed. 523, THE OAI^DONIAN.
Not cited.
4 Wheat. 103-104, 4 L. Ed. 525, THE LANODON 0HEVE8.
Not cited.
4 Wheat. 105-107, 4 K Ed. 626, THE FBIENDSCHAFT.
Property of commercial house, established in enemy's country, is condem-
nable as pdae, irrespective of personal domicile of partners.
Approved in Ju^egua Iron Co. v. United States, 212 U. S. 307, 58 L. Ed.
524, 29 Sup. Ct. 385, holding property of American corporation doing busi-
ness in Cuba during war with Spain may be confiscated by United States
in progress of war; The Pedro, 175 U. S. 368, 44 L. Ed. 200, 20 Sup. Ct.
143, holding that fact that ship was insured against wwr by neutral under-
writers is immaterial ; The Cheshire, 3 Wall. 233, 18 L. Ed. 176, following
rule; Brown v. Hiatt, 1 Dill. 384, Fed. Cas. 2011, construing nonintercourse
act, and denying right of citizen of insurrectionary State to sue United
States citizen in Federal courts, notwithstanding loyalty of former; The
Commercen, 2 Gall. 266, Fed. Cas. 3055, holding that neutral cannot law-
fully transport provisions for army of one belligerent, although such army
/
4 Wheat. 10^-121 NOTES ON U. S. REPORTS- 860
may be in neutral country; Perkins v. Rogers, 35 Ind. 160, 9 Am. Bep. 668)
holding contract between citizen of rebellious State and citizen of loyal
State void, irrespective of loyalty of former.
Corporation as alien enemy. Note, 5 B. B. C. 334, 335.
Miscellaneous. Cited in United States v. Cement, 27 Fed. Cas. 298, but
not in point. v
4 Wheat. 108-121, 4 L. Ed. 526, UNITED STATES ▼. HOWXAND.
Equity jurisdiction of Federal courts is uniform throughout the Tarioiis
Stated, and is not subject to restraint by State legislation.
Approved in Kuhn v. Fairmont Coal Co., 215 U. S. 364, 54 L. Ed. 286,
30 Sup. Ct. 140, holding decision of State Supreme Court that grantor in
deed conveying coal under land cannot maintain action for failure to leave
sufficient support to surface land not binding upon Federal courts in similar
action on identical facts; Kuhn v. Fairmont Coal Co., 179 Fed. 197, 102
C. C. A. 457, holding Federal court will, however, incline toward construc-
tion of similar deed a4opted by State court in suit under deed of coal and
mining privileges; Mexican Nat. Coal etc. Co. v. Frank, 154 Fed. 237,
applying, by analogy, period of limitation prescribed in Rev. Stats. Tex.
1895, art. 3358^ to equity suit in Federal coifrt for cancellation of instru-
ments surrendering coal mining lease; Davidson v. Calkins, 92 Fed. 233,
holding federal court will not issue injunction to protect property pendente
lite, where it cannot determine ownership; First Nat. Bank of Plattsmouth
V. Gibson, 69 Neb. 26, 94 N. W. 967, in equity suit to reach property fraudu-
lently transferred, debtor being necessary party, suit may be commehced
in county of his residence; Kuhn v. Fairmont Coal Co., 6§" W. Va. 721,
179 Fed. 191, 102 C. C. A. 457, as to construction of deed; First Nat. Bank
V. Ewing, 103 Fed. 194, arguendo; Boyle v. Zacharie, 6 Pet. 658, 8 L. fid.
536, holding that State statutes regulating proceedings on injunctions are
of no force in Federal courts ; Livingston v. Story, 9 Pet. 656, 657, 9 L. Ed.
264, applying rule to proceedings in Bistrict Court in State where equitable
claims are not cognizable ; Russell v. Southard, 12 How. 148, 13 L. Ed. 931,
holding evidence admissible to show that deed absolute on its face is in
fact mortgage, although rule otherwise in State where land situated ; Neves
V. Scott, 13 How. 272, 14 L. Ed. 142, holding that where Federal court
has jurisdiction it may establish a trust, although contrary to d<ecision of
court in State where cause arose; Irvine v. Marshall, 20 How. 565, 15 L. Ed.
998, holding further as to what constitute '^ cases in equity"; Barber v.
Barber,. 21 How. 591, 16 L. Ed. 229, ruling similarly in suit to enforce pay-
ment of alimony (but see dissenting opinion, p. 604, 16 L. Ed. 233, denying
equitable jurisdiction of Federal courts in matters of divorce and alimony) ;
Payne v. Hook, 7 Wall. 430, 19 L. Ed. 262, sustaining jurisdiction of
Circuit Coijirt in equity proceeding against administrator, although under
State probate system such proceeding was not maintainable in State court;
Watts V. Camors, 115 U. S. 362, 29 L. Ed. 409, 6 Sup. Ct. 95, holding that
in exercise of admiralty jurisdiction Federal courts are not bound by State
laws; Kirby v. Railroad Co., 120 U. S. 137, 30 L, Ed. 572, 7 Sup. Ct. 434,
f
861 UNITED STATES v. HO^TiAND. 4 Wheat 108^121
holding that where relief is asked in Federal courts on ground of fraud,
time will not begin to 4run against defendant \intil discovery of fraud, not-
withstanding State statute to'the contrary; Shuford v. Cain, 1 Abb. (U. S.)
305, Fed. Cas. 12,823, refusing to follow practice in State- where, cause arosd*
as to joining of legal and equitable causes in same proceeding; Baker v.
Biddle, 1 Bald. 411, 416, Fed. Cas. 764, applying rule in proceedings for
discovery; Bains v. Schooner James and Catherine, 1 Bald. 558, Fed; Cas.
756, applying principle in holding admiralty jurisdiction to be uniform
throughout the various States; Allen v. Blunt, 1 Blatchf. 486, Fed. Cas.
215, as to practice in proceedings for injunction to restrain infringement
of patent; Blanchaxd v. Sprague, 1 Cliff. 291, Fed. Cas. 1516, holding that
Federal courts are not governed by State laws as to admissibility of evi-
dence; Cropper v. Coburn, 2 Curt. 472, Fed. Cas. 3416, holding equitable
jurisdiction of Circuit Court not affected by State statute giving plaintiff
complete remedy at law; Lamb v. Starr, Deady, 363, Fed. Cas. 8021,
refusing to recognize State laws ^regulating pleading; Howards v. Selden,
4 Hughes, 310, 5 Fed. 473, holding plaintiff's right to bring action on
bond in Federal courts not affected by State statute of limitations; Bean
V. Smith, 2 Mason, 270, Fed. Cas. 1174, sustaining jurisdiction of Circuit
Court in action betweei^ citizens of different States to set aside convey-
ance, although such action not maintainable in State where cause arose;
Pratt V. Northam, 5 Mason, 105, Fed. Cas. 11,376, holding that Federal
court may entertain suit in equity by legatee to recover legacy, although
State statuta 4>rovides for action at law on administrator's bond; Bjrrd
V. Badger, McAll. 444, Fed. Cas. 2266, holding jurisdiction of Circuit
Court to entertain creditor's bill, not affected by State statute providing
other remedy; Johnston v. Roe, 1 McCrary, 165, 1 Fed. 695, holding that
State statute of limitations cannot bar equitable action in. Federal court;
Nickerson v. Railroad Co., 1 McCrary,* 384, 30 Fed. 86, holding that Federal
equity jurisdiction cannot be extended by State statute allowing equitable
proceeding in certain cases; Northern etc. R. R. Co. v. St. Paul etc. R. R.
Co., 2 McCrary, 265, 4 Fed. 692, as to practice in injunction proceedings;
Stretto^ V. Ballou, 3 McCrary, 47, 9 Fed. 257, refusing to follow State
statute providing that person holding mere possessory interest may main-
tain bill in equity for partition; Edwards v. Davenport, 4 McCrary, 43,
20 Fed. 762, denying authority of decision of State Supreme Court respeett
ing validity of contract entered into by person of unsound mind; Gold-
smith V. Gillilandj 10 Sawy. 608, 609, 22 Fed. 866, holding that person
having mere possessory interest in land cannot maintain suit to determine
adverse claim, in United States court, notwithstanding State statute;
Fletcher v. Morey, 2 Story, 567, Fed, Cas. 4864, as to rules governing equi-
table liens; Mayer v. Foulkrod, 4 Wash. 356, Fed. Cas. 9341, holding
equitable jurisdictioB^^of Federal courts over suit by legatee not ousted by
State statute providing for action at law; Orendorf v. Budlong, 12 Fed.
26, as to proceeding to set aside deed on ground of fraud; Gamewell etc. .
Co. V. Mayor, 31 Fed. 313, as to rules of pleading; Mann v. Appel, 31 Fed.
380, holding that jurisdiction of Federal court to entertain creditor's bill
is not affected by State statute providing other remedy; Ball v, Tompkins,
4 Wheat. 108^121 NOTES ON U. S. REPORTS. 862
41 Fed. 4S9, as to actions for recovery of legacies; American Assn. ▼.
Eastern Kentucky Co., 68 Fed. 722, holding that Federal court cannot
entertain suit for partition where plaintiff's title is denied, although State
statute provides that equity may take cognizance of questions of title in
such suit; Western Assurance Co. v. Ward, 75 Fed. 342, 41 U. S. App.
443, Nas to proceedings in suit to reform contract; Burdon etc. Co. v. Ferris
etc. Co., 78 Fed. 422, as to proceeding to establish equitable lien; Taylor
V. Clark, 89 Fed. 8, refusing to entertain suit to quiet title to land in pos-
session of defendant, although ^uch suit authorized by State statute ; Dupuy
V. Bemiss, 2 La. Ann. 512, "holding jurisdiction of Federal court over suc-
cession property not ousted by fact that succession is under administration
of court of probate; Bell t. Railroad Co., 34 La. Ann. 794, holding that
jurisdiction of Federal courts to appoint receiver for , railroad is not
affected by State statute regulating such proceedings; Brown v. Circuit
Judge, 75 Mich. 278, 18 Am. St. Rep. 440, 42 N. W. 828, holding further
as to what constitute ''cases in equity*'; McPike v. Wells, 54 Miss. 145,
asserting jurisdiction 6f Federal court to enforce vendor's lien as between
citizens of different States; Fordyce v. Beecher, 2 Tex. Civ. App. 31, 21
S. W. 179, holding that discharge of Federal court receiver abates suits
pending against him, notwithstanding State statute providing otherwise
as to receivers generally; United States v. Myers, 2 Brock. 526, Fed. Cas.
15,844 , Loring v. Downer, McAU. 363, Fed. Cas. 8513 , Singer etc. Co. v.
Yarger, 2 McCrary, 585, 12 Fed. 488, Pierpont v. Fowle, 2 Wood. & M. 31,
32, 33, 40, Fed. Cas. 11,152, Pittsburg etc. Ry. Co. v. Bridge Co., 68 Fed.
21, 46 U. S. App. 530, Lamson v. Mix, 14 Fed. Cas. 1055, Houghtaling v.
Ellis, 1 Ariz. Ter. 384, 25 Pac. 536^, Taylor v. Taylor, 74 Me. 588, and Kerr
V. Woolley, 3 Utah, 464, 24 Pac. 834, all arguendo.
Criticised in PuUiam v. Pulliam, 1/) Fed. 78, Fed. Cas. 11,463a, holding'
that where State statute limits time for bringing action to recover legacies,
Circuit Court is bound to respect it.
Questions of State law as to which State court decisions must be
followed in actions originating in, or removed to^ Federal courts.
Note, 40 L. R. A. (N. S.) 448. "^
United States rlgbt of priority does not attach unless assignment oper-
ates to convey all of debtor's property.
Approved in In re McCrum, 214 Fed. 210, 130 C C. A. 555, holding, under
facts, transfer was not assignment for benefit of creditors; Missouri-
American Electric Co. v. Hamilton-Brown , Shoe Co., 165 Fed. 288, 91
C. C. A. 251, holding, under facts, conveyance not general assignment for
benefit of creditors; S. H. Hawes & Co. v. Wm. R. Trigg Co., 110 Va. 206,
65 S. E. 554, holding, under contract between shipbuilding company and
United States, giving latter lien for any installments / on price paid during
construction, government's lien is inferior to liens for materials and sup-
. plies furnished in its construction; United States v. Canal Bank, 3 Story,
81, Fed. Cas. 14,715, holding that United States, by attachment and levy,
does not acquire right to priority -over prior attaching creditor; also in
United States v. McLellan, 3 Sumn. 352, Fed. Cas. 15,698; United States
863 STCRGES v. CROWNINSHIELD. 4 Wheat. 122-208
/
T» Couch, 25 Fed. Cas. 6^4; and United States v. Wood, 28 Fed. Cas. 754,
all holding that transfer of part of debtor's property to one creditor is
valid, and that United States right of priority does not attach; Campbell
V. Colorado etc. Co., 9 Colo. 66, holding that where partnership does busi-
ness in different places nnder different names, assignment, to be general,
must cover property in both places of business; Palmer v. McCaij'thy, 2
Colo. App. 428,, 31 Pac. 243, holding that deed of assignment, to^be valid,
must show on its face that it was intended to embrace all property of
assignor; Farwell v. Cohen, 138 111. 231, 28 N. E. 38, construing statute
prescribing form for executing assignments; Graves v. Roy, 13 La. 458,
33 Am. Dec. 570, holding void, »an assignment for the benefit of certain
creditors, which excluded others who refused to release debtor; Wilcocks
v. Wain, 10 Serg. & R^ 380, on point that United States right of priority
is defeated by bona fide conveyance, by insolvent; Mussey v. Noyes, 26
Vt. 474, holding that where assig:nment purports to be partial it is to be
so treated until contrary is shown; Stanley v. Robbins, 36 Vt.'430, con-
struing statute prescribing form for assignment d^ed.
Distinguished in United States v. Langton, 5 Mason, 284, Fed. Cas.
15,560, holding that fraudulent retention of small amount cannot defeat
right of United States.
Priority of State of United States in payment. Not^, 29 L. R. A. 282.
Effect on priority of United States where deed of assignment conveys only
prdperty mentioned in a schedule. • 1
\ Approved in Bank of Opelika v. Kiser, Moore, Drax>er & Co., ^19 Ala.
198, 24 South. 12, holding bill to have conveyances made in payment of
prior d^bts declared in trust for creditors mx\s( show that all property of
debtor was transferred.
Distinguished in Piatt v. Lott, 17 N". Y. 481, holding that assignment of
all of^ilebtor's proi)erty, which was stated to be ''particularly enumerated
and described," in annexed schedule, passed property not mentioned.
Equitable remedy to subject choses in action to judgment after return
• of no property found. Note, 63 L. R. A. 694, 705.
Miscellaneous. Cited in United States v. Cushman, 2 Sumn. 434, Fed.
Cas. 14,908, as instance where United States ' right of priority was enforced
in equity; dissenting opinion in Missouri etc. Co. v. Krumsisig, 77 Fed. 43,
40 U. S. App. 620, but application doubtful; Colt v. Lasmier, 9 Cow. 334,
holding as to who are proper parties in action to recover legacy; State v.
Harris, 2 Bail. 600, to point that United States right of priority is statutory.
«
4 Wheat. ie2-208, 4 L. Ed. 529, STXTBaES ▼. OBOWNIKSHEELD.
Power of Congress is exclusive, whenever terms in which it is granted, or
Its nature, require that it should be exercised exclusively by Congress. But
mere grant of power to Congress does not necessarily imply prohibition upon
States to exercise such power;- if it is not such as to. require its exercise by
Congress exclusively, States are free t6 exercise it, until Congress has acted.
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 864
The recent eases have cited the syllabus proposition and applied it \n
various ways; Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211
U. S. 621, 53 L. Ed. 360, 29 Sup. Ct. 214, holding grant by Congress to
Interstate Commerce Commission does not prevent State compelling carrier
by mandamus to, reehime transfer and return of cars between connecting
carrier's line and particular shipper; The Roanoke, 189 U. S. 197, 47
L. Ed. 774, 23 Sup. Ct. 493, holding States may create liens for necessaries
furnished domestic vessels; United States v. Baltimore etc. R. Co., 184 Fed.
95, holding, under safety appliance act of March 2, 1893, yard engine
having no handholes in sides near rear end of tender was not properly
equipped; The Energla, 124 Fed. 846, upholding and enforcing Ball Wash.
Codes, §§ 5953, 5954, giving liens on vessels for nonperformance of charter;
Leidigh Carriage Co. v. Stengel, 95 Fed. 647, holding '*^uniformity" re-
quired by Const., art. I, § 8, is geographical and not personal ; R. H. Herron
Co. V. Superior Court, 136^ Cal. 281, 89 Am. St. Rep. 125, 68 Pac. 815,
holding State statute relative to insolvent mining corporations is not sus-
pended by national bahkruptcy act of 1898; Southern Ry. Co. v. Railroad
Commission, 179 Ind. 32, 100 N. E. 340, holding Federal safety appliance
act of 1893, as amended by act of March 2, 1903, applicable to cars com-
monly used on interstate railway, though at time loaded and delivered at
points in same State ; City of McMinnville v. Howenstine, 56 Or. 456, Ann.
Oas. 19120, 193, 109 Pac. 83, holding that under State Constitution voters
of city have power, by amendment to charter, to provide for taking for
public use water flowing from Bj)ring on land outside city limits; Puritan
Coal Mining Co. v. Pennsylvania R. Co., 237 Pa. 447, Ann, Oas. 1914B, 37, '
85 Atl. 435, holding interstate railroad liable in action in State court for
failure to carry out State law relating to division of cars among shippers.
Other cases have relied upon the point in construing various constitu-
tional grants of power to Congress.
The power to regulate commerce.
The courts have claimed the principal case as authority, both in support
and in denial of the theory that the power to regulate interstate commerce
is an exclusive function of Congress. Thus the Passenger Cases, 7 How.
397, 12 L. Ed. 749, denied the power of the States to impose taxes upon
alien passengers arriving in their ports, and Hall v. De Cuir, 95 U. S. 499,
24 L. Ed. 552, held void a State statute calculated to secure for all persons
traveling in the State, equal rights and privileges in public conveyances,
without discrimination on account of race or color. Freight and toll rates
have also, as a feature of commerce, been held subject to exclusive control
by Congress, and attempts by States to regulate them have been held
invalid. Covington Bridge Co. v. Kentuclcy, 154 U, S. 212, 38 L. Ed. 966,
14 Sup. Ct. 1094; Gatton v. Railway Co., 95 Iowa, 129, 63 N. W. 595. The
majority of cases, . however, have recognized a concurrent power in the
States, and have upheld State laws incidentally affecting commerce and
not conflicting with any act of Congress. Thus in the exercise of their
police powers the States may prohibit the scde of liquors in less than a
stipulated quantity. The License Cases, 5 How. 585, 625, 12 L. Ed. 292, 311 ;
and may pass laws for the government of pilots within State waters.
865 STURGES V. CROWNINSHIELD. 4 Wheat. 122-208
Coolcy ▼. Port Wardens, 12 How. 319, 18 L. Ed. 1005; and authorize thb
erection of a bridge across navigable waters, wholly within the State,
although such bridge may impede navigation, United States v. New Bed-
ford Bridge, 1 Wood. & M. 426, Fed. Cas. 15,867; so also a State may
provide a penalty for failure of telegraph companies to deliver messages
with due diligence. Western Union Telegraph Co. v. James, 162 U. S. 655,
40 L. Ed. 1107, 16 Sup. Ct. 936. Woodbury, J., dissenting in the Passenger
Cases, 7 How. 555, 556, 559, 560, 571, 12 L. Ed. 816, 817, 818, 823, argued
in favor of a State law imposing a tax upon alien passengers, following
the reasoning of Chief Justice Taney, in the License Cases, supra. This
concurrent power has also been asserted in the following State cases:
Ex parte Crandall, 1 Nev. 306, declaring validm capitation tax of one dollar,
upon all persons carried out of the State by railroad or stage companies;
Lemmon v. People, 20 N. Y. 614, holding that as a State has a right to
determine the status of persons within its borders, and that a statute
providing that slaves brought into the State by the voluntary act of their
master should be declared free, was constitutional and applicable to a case
where such slaves were merely landed in port for transmission to another
vessel; Phelps v. Racey, 60 N. Y. 15, 19 Am. Rep. 144, holding valid, an
act prohibiting persons from having in their possession certain game birds,
although such act operates as a prohibition against bringing them from
other States; Boardman v. Railway Co., 84 N. Y. 186, asserting the power
of a State to authorize the consolidation of railways whose lines extended
beyond the State; Raquet v. Wade, 4 Ohio, 109, denying that a tax upon
merchants conflicted with legislation of Congress on the subject of inter-
state commerce; Craig v. Kline, 65 Pa. St. 409, 3 Am. Rep. 643, holding
that a State may, in the exercise of its police power, regulate the rafting
of logs upon a navigable river within its borders.
In Holmes v. Jennison, 14 Pet. 576, 10 L. Ed. 597, the court divided on
the question as to whether the Supreme Court had jurisdiction to release
on habeas corpus a person held for extradition under a warrant issued
by a State Gbvemor. Chief Justice Taney, citing the principal case, de-
clared that as an incident of his power to make treaties, the power of
extradition was exclusively in the President. Mr. Justice Barbour, how-
ever, argued in favor of the x>ower of the States to act, holding that as
no treaty existed by which the President could exercise the power, it
remainded for the States to do so ; 14 Pet. 591, 10 L. Ed. 604. The court
having divided, the warrant was not disturbed, and when the question came
before the State court upon habeas corpus, it adopted the reasoning of
Chief Justice Taney, and denied the power of the Governor to issue the
warrant. Ex parte Holmes, 12 Vt. 646. To the same effect also is the
New York case of People ex rel. v. Curtis, 50 N. Y. 326, 10 Am. Rep. 487.
Congress may, under the Constitution, provide a penalty for counter-
feiting the coin and securities of the United States, and when it has so
provided, such offenses are cognizable, exclusively by the Federal courts. '
Ex parte Houghton, 7 Fed. 660, 8 Fed. 899. And the principle extends
to the punishment of an officer of a national bank for embezzlement, under
a Federal statute. People v. Fonda, 62 Mich. 407, 29 N. W. 29. Two
I — 55
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 886
State cases citing the principal case have, however, asserted a concurrent
power in the States to punish persons for having in their possession
'^ instruments adapted and designed for making counterfeit coin," and
for having in possession forged notes of a national bank. Harlan v.
People, 1 Doug. (Mich.) 210; Jett v. Commonwealth, 18 Qratt. 939.
The question as to. the power of the States to pass fugitive slave laws
is no longer of any importance, and it is unnecessary to do more than
notice the decisions in which the principal case is relied upon as authority
in denying the right of the States to legislate upon the subject. Prigg v.
Pennsylvania, 16 Pet. 622, 625, 653, 10 L. Ed. 1091, 1092, 1103; Jack v.
Martin, 12 Wend. 317; «. c, 14 Wend. 535. See also In re Perkins, 2
Cal. 432; Freeman v. Robinson, 7 Ind. 323; and In re Booth, 3 Wis. 125,
which assert a power in the States to enact police regulations, provided
they do not conflict with Congressional action.
The' question as to the limits on the x>owers of the Federal and btato
governments, respectively, in levying taxes, has called for the application
of the principles laid down in the Sturges case. The instruments and
means of State government are clearly exempt from control by the Federal
government, and on this principle the power of Congress to tax, as income,
the salary of a State judge, was denied in Day v. Bufiinton, 3 Cliff. 386,
Fed. Cas. 3675. In a similar case, a State court derived the right of
Congress to tax official bonds given to a State by its officers. State ex reL
V. Garton, 32 Ind. 7, 2 Am. Rep. 319. This restriction is recognized in
several cases as operating upon the States, in admitting that instruments
of the Federal government are not subject to State taxation. But where
Congress has expressly declared that the States may tax shares of national
banks, in the hands of individuals, provided that such taxes are levied in
the same manner, and to the same extent as taxes on other similar property,
the restriction does not apply. People v. Commissioners, 4 Wall. 244, 18
L. Ed. 344; Hepburn v. School Directors, 23 Wall. 480, 23 L. £d. 112;
City of Utica v. Churchill, 33 N. Y. 241; Stetson v. City of Bangor, 56
Me: 284. So also a post-trader on a military reservation has been held
not to be exempt from taxation under a State law, although the court
recognized the power of Congress to exempt such post-trader by positive
statute. County of Cherry v. Thacher, 32 Neb. 353, 354, 49 N. W. 352.
And again in People v. Naglee, 1 Cal. 235, 241, 62 Am. Dec 315, 320, a
State court asserted the power of the State to require from foreigners
the payment of a monthly license for the privilege of carrying on the occu-
pation of mining within the State, although such mining was done on lands
of the United States.
The powers of Congress to provide for organizing and arming the militia,'
is recognized in several cases, which, however, cite the principal case in
sustaining State laws incidentally affecting the militia. Thus the State
may exempt militia men from jury service, Dunne v. People, 94 111. 129,
34 Am. Rep. 219 ; may provide for the payment of a bounty to men enlisted
in the service of the United States under a call from the President, Brod-
head v. Milwaukee, 19 Wis. 664. In the latter case, however, Powner, Jv
dissenting, denied the application of the principle o£ concurrent powen,
867 STURGES v. CROWNINSHIELD. 4 Wheat. 122-208
inasmuch as Congress had provided that if any State should make an
appropriation to pay yolunteers, the Secretary of War should receive the
same, and make r^ulations by which such funds should be applied, 19
Wis. 664. Redfield, J., dissenting, in Gilman v. Morse, 12 Vt. 557, citing
the principal case, goes to the extent of asserting that the States may
reorganize the militia or even abolish it altogether in absence of prohibitory
legislation by Congress.
Another power which the States have asserted, in absence of con-
gressional regulation, is that of fixing a standard' of weights and measures.
Weaver v. Fegely, 29 Pa. St. 29, 70 Am. Dec. 153.
Miscellaneous citations upon this point: Ex parte Hill, 38 Ala. 450,
denying the jurisdiction of a State court to discharge from the custody
of an enrolling officer of the Confederate States, on the ground of physical
incapacity, persons enrolled as conscripts under the acts of the Confederate
Congress; Simmons v. Miller, 40 Miss. 25, holding that memEers of the
State militia were subject to conscript laws of the Confederate Congress;
Helm V. Bank, 43 Ind. 170, 13 Am. Rep. 397, holding that, as the enact-
ment of patent laws is exclusively within the power of Congress, a State
could not preseribe the form for the execution of a promissory note for
which a patent ri^t was consideration; State v. Reid, 1 Ala. 619, 35 Am.
Dec 49, holding that an act prohibiting the carrying of concealed weapons
' does not divest the citizen of the right to "bear arms in defense of him-
self and the State"; Delafield v. Hlinois, 26 Wend. 210, 211, holding that
State courts possess jurisdiction concurrent with that of the Federal courts
in controversies between a State and the xsitizens of another State ; State
V. De la Foret, 2 Nott & McC. 221, 225, holding that State courts have
jurisdiction to try foreign consuls for offenses committed within their
borders; State v. Norman, 16 Utah, 461, 52 Pac. 987, asserting power of
territory to pass laws punishing adultery, although that offense was
embraced in a general law of Congress.
Supremacy of State or nation over devolution of property. Note, 17
L. K. A. 84.
Until CongresB passes bankruptcy law States are not forbidden to pass a
bankruptcy law.
Approved in Grunsfeld Bros. v. Brownell, 12 N. M. 200, 76 Pac. 312,
holding valid chapter 67, Sess. Laws 1889, relating to preferences by
debtors; Lace v. Smith, 34 R. I. 5, 10, 15, 17, 20, Ann. Oas. 1913E, 945,*
82 Atl. 270, 272, 274, 275, 276, holding that Gen. Laws 1909, c. 339, does
not conflict with Federal statutes as to farmer forced into involuntary
insolvency; Merrill v. Bowler, 20 R. I. 231, 38 Atl. 116, upholding Gen.
Laws, chapter 274, relating to insolvent estates; Ogden v. Saunders, 12
Wheat. 296, 314, 6 L. Ed. 634, 641, Sloane v. Chiniquy, 22 Fed. 215, Wilson
v. Matthews, 32 Ala. 342, Risen v. Powell, 28 Ark. 439, Ray v. Cannon,
2 Mart. (La.) (N. S.) 28, Northern Bank v. Squires, 8 La. Ann. 338, 339,
58 Am. Dec. 684, 685, Mather v. Bush, 16 Johns. 247, 253, 8 Am. Dec. 314,
320, Niolon v. Duglas, 2 Hill £q. 448, In re Klein, 1 How. 279, 11 L. Ed. 131,
14 Fed. Cas. 717.
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 868
In discussing this qnestion Chief Justice Marshall admitted a dLBtinction
between bankrupt and insolvent laws. At the same time, however, he
admitted the difficulty of discriminating, with any accuracy, between them.
It was unnecessary to consider the question, and the distinction, if any
such exists in fact, was not cleiEU'ly shown. The language of *the court,
however, has been referred to in several cases. In In re Reiman, 7 Ben.
463, 11 Bank. Reg. 31, Fed. Cas. 11,673, Blatchford, J., discussing the
general subject and attempting to define the limits of congressional power,
declares that no distinction has ever been practically or even theoretically
attempted to be made between bankruptcy and insolvency, as understood
in this country. The court in Ex parte Hull, 12 Fed. Cas. 856, admits the
difficulty of determining the distinction with exactness. The term 'insol-
vency," as applied to voluntary applications for a decree, was held to
mean an inability to meet engagements, but in its relation to compulsory
proceedings by creditors, to mean the bankruptcy of the debtor as known
to the court, as a ground for the proceedings. See also West v. Creditors,
4 Rob. (La.) 92, upon this point.
Power of State to pass bankruptcy laws. Note, 7 Am. Dec. 691.
Relation of bankrupt law to insolvent proceedings under State laws.
Note, 45 L. B. A. 186, 187, 188.
"Right of States to pass bankruptcy laws Is only suspended by enactment
by Congress of national bankiliptcy law.
Approved in In re J. H. Alison Lumber Co., 137 Fed. 643; Farmenter
Mfg. Co. V, Hamilton, 172 Mass. 179, 70 Am. St. Rep. 259, 51 N. E. 530, and
Hickman v. Parlin-Orendorf Co., 88 Ark. 520, 115 S.' W. 371, ^11 following
rule ; In re Sage, 224 Fed. 539, holding receiver appointed by State court
after petition in bankruptcy not "adverse claimant" so as to prevent bank-
ruptcy courts making summary order to deliver property received by him
to trustee; In re Weedman Stave Co., 199 Fed. 951, holding void appoint-
ment of receiver for insolvent corporation under Kirby's Dig. Ark., §§ 949-
952 ; State of New Jersey v. Lovell, 179 Fed. 321, 31 L. R. A. (N. S.) 988,
102 C. C. A. 505, holding in distribution of bankrupt's estate, necessary cost
of preserving estate subsequent to filing petition has priority over pay-
ment of taxes du^ State ; Carling v. Seymour Lumber Co., 113 Fed. 488,
holding Georgia insolvency laws were suspended by passage of national
bankruptcy act; In re Macon Sash, Door & Lumber Co., 112 Fed. 330,
holding appointment of receiver by State court after passage of Fedend
bankruptcy law is void; In re Taylor, 102 Fed. 730, holding default of
defendant to petition in involuntary bankruptcy through failure to appear
does not make proceeding one of voluntary bankruptcy; RockviUe Nat.
Bank v. Latham, 88 Conn. 72, 89 Atl. 1117, applying rule to voluntary
bankruptcy one engaged chiefly in farming; Boston etc. Co. v. Ould-Carter
Co., 123 Ga. 463, 51 S. E. 468, in absence of proceedings in Federal courts,
State court has jurisdiction of cases within insolvent trader's act; Staley
V. Illinois Cent. R. R. Co., 268 111. (356) 379, L. R. A. 1916A, 469, 109 N. E.
350, holding Workmen's Compensation Act, Laws 1911, p. 315, inapplicable
to railway employee injured while engaged in interstate commerce; Har-
869 STURGES v. CROWNINSHIELD. 4 Wheat. 122-208
baugh ▼. Costello, 184 III. 113, 75 Am. St. Rep. 148, 56 N. E. 363, holding
voluntary assignment law was snspended; Duffy v. His Creditors, 122 La.
602, 48 South. 121, applying rule to meiger of respite proceedings into
cession of property, under Civil ^ Code, article 3098; Old Town Bank V.
McCormick, 96 Md. 351, 353, 356, 94 Am. St. Rep. 579, 581, 58S, 60 L. R. A.
577, 53 Atl. 935, 936, 937, holding that Federal bankruptcy law did not
supersede Gen. Laijrs, art. XLVII, § 23, as to insolvency proceedings begun
against a farmer by his creditors; Qrunsfeld Bros. v. Brownell, 12 N. M.
198, 200, 76 Pac. 311, 312, Sess. Laws 1889, c. 67, prohibiting debtors from
preferring creditors is not bankruptcy law and is not suspended by Federal
bankruptcy law; Allen v. Reed, 10 Okl. 125, 60 Pac. 788, holding void
act of 1893, relating to change of county scats as inconsistent with act of
Congress of 1893, for opening of Cherokee Outlet; dissenting opinion in
Jacobs V. E. Bements Sons, 161 Mich. 425, 126 N. W. 1047, majority hold-
ing, after dissolution of corporation and appointment of receiver, creditor
cannot maintain suit in his own name against corporation.
Other cases have relied upon this holding in deciding that after a
national bankruptcy act has been passed and prior to its going into opera-
tion, the State laws continue in operation and discharges granted there-
under are valid. Martin v. Berry, 37 Cal. 209, 210; Day v. Bardwell, 97
Mass. 250 ; Chamberlain v. Perkins, 51 N. H. 340, 341. In Perry v. Lang-
ley, 19 Fed. Cas. 2^, 1 Bank. Reg. (157) 569, however, the court seems
to assert a different rule. There a debtor had made an assignment under
a State law in May, 1867, and the State court had taken cognizance of it.
In July the creditors filed a petition to have the debtor declared a bank-
rupt, and the court held that as to such a matter the national act was in
force at the time the assignment was made, and the Federal courts could
rightfully take jurisdiction of the whole case under the petition filed in
July. It has also been held that where a court has acquired jurisdiction
of a case of insolvency under a State law, such jurisdiction cannot be
ousted by the passage of a national law. Meekins v. Creditors, 19 La. Ann.
497 ; Martin v. Berry, 37 Cal. 209, 210.
Again it has been held in reliance upon this principle that a State act
suspended by enactment of a national law, is revived by the repeal of the
latter. The following cases have so decided: Butler v. Goreley, 146 U. S.
313, 36 L. Ed. 986, 13 Sup. Ct. 88, holding that the repeal, in 1878, of the
act of March, 1867, "merely removed an obstacle to the operation of the
insolvency laws of Massachusetts, and did not render necessary their
re-enactment"; Boedefeld v. Reed, 55 Cal. 301, extending the principle 90
far as to hold that a discharge under a State statute so revived, extended
to debts incurred during the suspettsion of tRe statute; and such was the
ruling in In re Damon, 70 Me. 154, 1^5, and Palmer v. Hixon, 74 Me.
448. Applying this principle In re Nelson, 69 Fed. 714, held that an act
of Congress providing for the punishment of bigamy and similar offenses
in the territories merely suspended a territorial statute covering the same
subject, and upon the admission of the territory as a State, when the act
of Congress ceased to operate, the territorial statute went into full force
as a law of the State. Other cases have cited the principal case to this
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 870
point in holding that while national aot is in force, proceedings under
State act are void; Ex parte Eames, 2 Story, 325, 326, Fed. Cas. 4237,
granting injunction to restrain an assignee under a State law from taking
possession of a debtor's property ; In re Independent Ins. Co., 1 Holmes, 103,
Fed. Cas. 7013, and Thomhill v. Bank, 1 Woods, 8, 6 Bank. Reg. 373, Fed.
Cas. 13,992, holding that where a corporation had been dissolved under
a State law and a receiver appointed by a State comrt, the corporation was
still to be considered as existing for the purpose of being proceeded against
under the national bankruptcy act; in re Gutwillig, 90 Fed. 477, holding
assignment under a State law voidable at the option of a trustee under
the national act; In re Reynolds, 8 R. I. 488, 489, 491, 5 Am. Rep. 616, 617,
619» holding void a discharge of a debtor from imprisonment under a State
law, although such discharge was not in conflict with the national act;
Commonwealth v. O'Hara, 1 Bank. Reg. 89, denying the validity of a war-
rant for the arrest of a debtor under a State law. So, also laws providing
for voluntary assignments for the benefit of all creditors, have been held
to be, in effect, insolvent laws, although not so denominated; hence, assign-
ments under them are void. Perry v. Langley, 19 Fed. Cas. 284, 1 Bank.
Reg. (157) 569; Globe Ins. Co. v. Cleveland Ins. Co., 10 Fed. Cas. 491,
492, 14 Bank. Reg. 311 ; Griswold v. Pratt,. 9 Met. 17, 19. In Sadler v.
Immel, 15 Nev. 268, however, a common-law assignment was held not to be
invalidated by the existence of a national act. On j;he same principle,
also, a State law exempting homesteads from attachment, is void if it
conflict with the provisions of a national bankruptcy act. In re Brown,
4 Fed. Cas. 335, 3 Bank. Reg. (61) 255. Two State cases in which the
principal case is approved, hold, however, that State statutes which pro-
vide for the dischai^e of the debtor from imprisonment, are not bankrupt
laws and so not suspended by the national act: Steelman v. Mattix, 36
N. J. L. 345 ; In re Reynolds, 8 R. I. 493, 6 Am. Bep. 621.
The rule that discharge under a national act is not impeachable in a
State court has been recognized in the following cases, as deducible from
the holding in the principal case: Beach v. Miller, 15 La. Ann. 602, refus-
ing to allow a creditor's claim to be classed among the debts of a deceased
insolvent's estate, such claim having been discharged under a decree of
the District Court; Corey v. Ripley, 57 Me. 75, 2 Am. Bep. 21, denying
jurisdiction of State court to set aside discharge granted by a Federal
court, although such discharge was impeachable in the Federal courts, for
reasons set forth in the act itself. To the same effect also are Van Nos-
trand v. Carr, 30 Md. 131, Miller v. Mackenzie, 43 Md. 411, 80 Am. Bep.
113, and Hudson v. Bigham, 12 Heisk. 67, holding that State courts are
bound to respect a composition of creditors sanctioned by act of Congress.
The principle has also been applied in denying the right of a creditor
to proceed against a debtor in a State court while bankruptcy proceedings
are pending in a Federal court : Def ord v. Hewlett, 49 Md. 62.
In the following cases the court has distinguished the principal case
from the citing cases: United States v. McCuUagh, 221 Fed. 295, holding
invalid migratory bird law, act of March 4, 1913, c. 145, 37 Stat. 847;
Johnson v. Crawford, 154 Fed. 765, holding right to arrest judgment
871 STURGES v. CROWNINSHIELD. 4 Wheat. 122-208
debtor under Act Pa. July 12, 1842, not taken away by bankruptcy act of
1898 ; Roberts Cotton Oil Co. v. Morse & Co., 97 Ark. 619, 136 S. W. 337,
holding State court may, at stockholders' suit, appoint receiver of domestic
mercantile corporation.
Validity of insolvency laws passed during the existence of a national
bankruptcy act. Note, 28 Am. Dec. 856.
Effect of national bankruptcy act on State insolvency law with respect
to who may be adjudged bankrupt. Note, Ann. Gas. 191SE, 957.
Power of States to enact Insolvent laws is subject to prohibition against
laws impairing obligation of contracts. Such a law, acting upon contracts en-
tered into before its passage, is a law impairing the obligation of contracts,
and void.
The principal case is leading authority upon this point, and the rule
thus laid down has been uniformly applied in those cases wherein the
constitutionality of such retrospective laws has been questioned: Farmers'
ete. Bank v. Smith,. 6 Wheat. 134, 5 L. Ed. 225; Bank of United States v.
Frederickson, 2 Fed. Cas. 746 ; Smith v. Mead, 3 Conn. 256, 8 Am. Dec. 184 ;
Boardman v. De Forest, 5 Conn. 12; Schwartz v. Drinkwater, 70 Me. 410;
Roosevelt v. Cebra, 17 Johns. 108; Salters v. Ttrbias, 3 Paige Ch. 344;
Elton V. O'Connor, 6 N. D. 6, 68 N. W. 86. On this principle also it was
held in In re Wendell, 19 Johns. 153, that an amendment to an insolvent
act was ineffectual to discharge a debtor from liability on a contract en-
tered into previously, the effect of such amendment having been to reduce
the number of creditors who could grant a release. The rule has also been
approved in the following recent cases: In re Bonvillain, 232 Fed. 372,
holding Act La. No. 189 to 1914, cannot exempt Hfe insurance policies as
against creditors whose claims originate prior to act; Republic Iron &
Steel Co. V. Carlton, 189 Fed. 138, holding remedy provided by Laws 1908,
c. 305, for creditors to enforce liability for unpaid subscriptions to cor-
porate stock did not alter contract remedy theretofore existing to recover
such; In re Salmon, 143 Fed. 405, Rev. St. Mo., §§ 1306, 1306, relating to
insolvent State banks, was suspended by bankruptcy act, and participation
by creditors in proceedings thereunder did not estop creditors from there-
after prosecuting bankruptcy proceedings against debtors; Pusey v. Love,
6 Penne. (Del.) 95, 130 Am. St. Rep. 144, 11 L. R. A. (N. S.) 953, 66 Atl.
1018, holding statute undertaking to deprive corporation's creditors of
right to maintain actions against its stockholders void if applied to pre-
existing indebtedness; Coal & Coke Ry. Co. v. Conley, 67 W. Va. 171, 67
S. E. 631, construing chapter 41 of acts of 1907, relating to railway rate
legislation. The ruling of the principal case was approved in Wyman v.
Mitchell, 1 Cow. 320, but the decision went upon other grounds. In Van
Hook V. Whitlock, 3 Paige, 414, the question was as to the validity of the
discharge of a corporation, and the court held that notwithstanding the
discharge the liability of the individual stockholders still continued as to
debts contracted prior to the act. The same case, coming before the court
later, however, approved the ruling of the previous case, but held that,
although the act in question was unconstitutional, the creditors, having
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 872
accepted dividends under an assignment, were estopped from oalling upon
the stockholders for payment of the residue of their debts not received
under the assignment: 26 Wend. 53, 37 Am. Dec. 248. In Sacia v. De
Graff, 1 Cow. 358, it was held that a discharge would not prevent the
statute of limitations from running against an action of assumpsit upon
a contract made before the act, even though the money did not fall due
under the contract until after the passage of the act. And in Conway
V. Seamons, ,55 Yt. 11, 45 Am. Rep. 581, the court, citing the principal case,
denied the operation of an insolvent law upon a previously contracted debt,
even where such debt was merged in a judgtnent rendered after the pas-
sage of the act. In In re Klein, 1 How. 279, 11 L. Ed. 181, 14 Fed. Cas.
723, the court went so far as to hold that the restriction applies to Con-
gress as well. as the States, but the decision was reversed in the Circuit
Court.
But while insolvent laws may not thus retroact upon previously con-
tracted debts, it is equally well settled that State laws providing for the
discharge of subsequent contracts are valid. The question was the sub-
ject of much argument in Ogden v. Saunders, 12 Wheat. 215, 6 L. Ed. 60%,
and the majority held that such laws, if prospective only in their operation,
were valid: 12 Wheafr257, 262, 263, 264, 272, 273, 284, 296, 304, 312,
314, 315, 317, 6 L. Ed. 621, 622, 623, 626, 630, 684, 637, 640, 641, 642. See,
also, the dissenting opinion in Marshall, C. J., 12 Wheat. 333, 6 L. Ed. 647.
The question had previously been before the courts in New York, and on
the same reasoning the validity of such laws upheld: Mather v. Bush, 16
Johns. 247, 253, 8 Am. Dec. 314, 320 ; Hicks v. Hotchkiss, 7 Johns. Ch. 304,
309, 311, 313, 11 Am. Dec. 476, 480, 481, 488. To the same effect also is
Smith V. Parsons, 1 Ohio, 237, 242, 13 Am. Dec. 609, 616. In Hundley v,
Chaney, 65 Cal. 363, 4 Pac. 238, the court went still further, and held that
a discharge under a State act of 1880, operated to bar an action on a judg-
ment rendered in 1876. The act of 1880, having been merely amendatoiy
of an act passed in 1851, and more stringent and burdensome upon the
insolvent than the latter act, was held not to be open to objection by the
creditor on the ground that it was retrospective in operation.
Distinguished in Charles Roesch & Sons Co. v. Mumford, 230 Fed. 62,
holding, where insolvent made general assignment under Bankruptcy Act
1898, though without following remedies prescribed, creditor who accepts
assignment cannot question its validity. «
State insolvent laws can have no extraterritorial operation. ~
This rule has been reasserted in num^ous subsequent decisions. Upon
the point that a discharge under a State law cannot operate to bar an
action by a foreign creditor, the following cases are to be noticed: Mc-
Millan V. McNeill, 4 Wheat. 212, 4 L. Ed. 563, applying the principle and
holding that a discharge under English laws could not bar an action by a
creditor residing in this country; Ogden v. Saunders, 1? Wheat. 255, 262,
357, 6 L. Ed. 620, 622, 656, the decision in this case^finally going upon
the ground that the law in question was inoperative, as to a nonresident
creditor ; Suydam v. Broadnax, 14 Pet. 75, 10 L. EcL 361, holding that the
873 STURGES v. CROWNINSHIELD. 4 Wheat. 122-208
insolvency of an estate determined tinder a State law could not abate a
suit commenced in the United States courts by a citizen of another State
against the executors of such insolvent estate; Baldwin v. Hale, 1 Wall.
228, 17 L. Ed. 532, affirming Hale v. Blddwin, 1 Cliff. 514, Fed. Cas. 5^13,
and holding that a discharge in Massachusetts was not a bar to an action
by a foreign creditor, on a note given and payable in that State; also
Stevenson v. King, 2 Cliff. 2, 3, Fed. Cas. 13,417, and Rhodes v. Borden,
67 Cal. 8, 6 Pac. 850, under facts similar to those in Baldwin v. Hale,
supra; Hawley v. Hunt, 27 Iowa, 308, 1 Am. Bep. 275, holding that where
a judgment is rendered against a citizen of a State and this judgment is
afterward assigned to a citi^^n of another State, a subsequent discharge
of the debtor, under the laws of the former State, will not bar an action
on the judgment; Larrabee v. Talbott, 5 Gill, 439, 440, 46 Am. Dec. 643,
644, holding further that the possession of such a judgment gives to the
judgment creditor an unqualified right to levy an execution on property,
of the debtor, wherever found, whether within or without the jurisdiction
of the discharge. So a discharge obtained in New York was held not to
be a bar to a suit in Vermont, upon a note executed in New York, between
citizens of that State: Herring v. Selding, 2 Aikens, 17. And, again, it
has been held that a discharge obtained in one State cannot be pleaded
in bar to a suit brought in such State upon a contract made between resi-
dents of another State, although previous to the discharge both parties
removed to the State where the discharge was had: Hicks v. Hotchkiss,
7 Johns. Ch. 301, 11 Am. Dec. 472; Witt v. FoUett, 2 Wend. 458. Two
cases, however, while admitting the soundness of the rule in the principal
case, have held, that where the debtor's property has passed to the assignee
in insolvency, a foreign creditor cannot attach it to secure his debt:
Perry Mfg. Co. v. Brown, 2 Wood. & M. 460, Fed. Cas. 11,015; Pinckney
V. Lanahan, 62 Md. 450, 451.
A modification of the general rule has been asserted in several cases,
declaring that where a foreign creditor has submitted himself to the juris-
diction of the courts of the State where the discharge *has been granted,
he is barred by the discharge. And this is true, where the creditor has
submitted himself, personally, to the jurisdiction. Von Glahne v. Varrenne,
1 Dill. 517, Fed. Cas. 16,994; or has submitted his claim to the jurisdic-
tion, by proving his debt, and presenting it to the assignee, Rosenheim v.
Morrow, 37 Fla. 188, 20 South, 246 ; Brown v. Smart, 69 Md. 327, 14 Atl.
470. A Louisiana case has even held that under a State law the citizens
of other States may be prohibited from suing in the Louisiana courts, on
contracts made either within or without the State, basing the decision
on the ground that all contracts made with citizens of Louisiana are pre-
sumed to be made with reference to the existing law of the State: Orr v.
Lisso, 33 La. Ann. 478.
The question as to what constitutes, a submission to the jurisdiction
has been the subject of several decisions, in all of which it was held that
the appearance of the nonresident creditor in insolvency proceedings, or
the presentation of his claim, must have been voluntary and with appar-
ent intent to waive his "extraterritorial immunity from the operation of
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 874
the insolvent law": Denny v. Bennett, 128 U. S. 497, 32 L. Ed. 494, 9
Sup. Ct. 137; Towne v. Smith, 1 Wood. & M. 127, Fed. Cas. 14,115; Newton
v, Hagerman, 10 Sawy. 462, 463, 22 Fed. 526, 527 ; Norton v. Cook, 9 Conn.
318, 319, 23 Am, Dec. 344, 345; Hafl v. Williams, 6 Pick. 243, 17 Am. Dec
364 ; Donnelly v. Corbett, 7 N. Y. 603, 504 ; Sonle v. Chase, 39 N. Y. 343,
344.
Another application of ihe rnle laid down in the principal case is to be
found in those cases which hold that a discharge of the debtor in one
State, which necessarily leaves the contract in force in another State,
can have no effect to discharge the debtor in the latter State, either from
an action on the contract: Cook v. Moffett, 5JIow. 308, 313, 316, 12 L. Ed.
165, 167, 169; Beers v. Rhea, 5 Tex. 354, 355, 360; Hinckley v. Mareau,
3 Mason, 89, Fed. Cas. 6523 ; Woodbridge v. Wright, 3 Conn. 526, 527, 528 ;
or from arrest and imprisonment in the State where the contract was
made ; Woodhull v. Wagner, 1 Bald. 297, Fed. Cas. 17,975 ; Judd v. Porter,
7 Me. 340 ; Ward v. Malin, 10 N. J. L. 209. See, also, Towne v. Smith, 1
Wood. & M. 121, 125, 126, 127, 128, Fed. Cas. 14,115, where the rule is
approved in discussing the question as to what constitutes the place of
contract in case of a note payable generally and indorsed to a person
residing in a State other than that in which the note was originally made.
In a Michigan ease, the court divided upon the question, thus affirming the
decision of the lower court, that an action by an indorsee resident in
Michigan against the maker who Was a citizen of New York, was barred
by the latter's discharge under the New York law. Campbell, J., how-
ever, cited the principal case, in arguing for the contrary rule. Brighton
Bank v. Merick, 11 Mich. 417.
Applying the principle that the operation of the State laws is restricted
to the territory of the State itself, there is authority for holding that such
laws can have no effect upon the process or proceedings of United States
courts, although held within the limits of the State. Thus, in Babcock
V. Weston, 1 Gall. 169, Fed. Cas. 703, which was an action of assumpsit,
between ciHzens Of different States, a plea that the legislature had sus-
pended process against the defendant, pending proceedings in insolvency, ■
was overruled. And in Darst v. Duncan, 6 Fed. Cas. 1195, it was held to
be no defense to an action against a sheriff for the escape of a prisoner,
committed for debt by a Federal court, that the prisoner had been dis-
charged under the insolvent law of the State. But in Channing v. Reilly,
4 Cr. C. C. 529, Fed. Cas. 2596, the principal case is distinguished upon
this point, the Circuit Court for the District of Columbia holding that a
dischai^e under a State law should be given the same effect in the District
as in the State granting- it.
In ruling that State insolvent laws can have no extraterritorial opera-
tion, however, the court did not mean that a creditor who was effectively
barred by a discharge in the State where the contract was made, could
render the discharge of no avail by suing in another jurisdiction, and the
authorities have uniformly refused to sanction such proceedings: Cole v.
Cunningham, 133 U. S. 114, 23 L. Ed. 542, 10 Sup. Ct. 271 ; Towne v. Smith,
1 Wood. & M. 130, Fed. Cas. 14,115; Very v. McHenry, 29 Me. 216;
875 STURGES v. CROWNINSHIELD. 4 Wheat. 122-208
Sherrill v. Hopkins, 1 Cow. 105, 106; Bank of Utica ▼. Card, 7 Ohio
(pt. II), 170; Northern Bank v. Squires, 8 La. Ann. 339, 58 Am. Qec. 685;
Peck V. Hibbard, 26 Vt. 704, 62 Am. Dec. 609. A Massachusetts case has
even held that a discharge under the laws of that State was a bar to an
action between citizens of the State, although the contract was made
and to be performed elsewhere: Marsh v. Putnam, 3 Gray, 655. In
Hempstead v. Reed, 6 Conn. 488, 489, 490, the same principle is approved,
but a plea of discharge was overruled, because of defects in the averments.
Miscellaneous. Brown v. Smarts 145 U. S. 457, 36 L. Ed. 775, 12 Sup.
Ct. 959, approves the principal case, in holding that a State insolvent law,
which provides that a transfer by a debtor to creditors with preferences
within four months previous to insolvency proceedings shall be void, and
shall be a cause for declaring the debtor insolvent, does not, where the
preferred creditors are citizens of other States, impair the rights of the
debtor. And in Gulick v. Loder, 13 N. J. L. 70, 23 Am. Dec 712, the prin-
cipal case is cited to the point that remedies are to be r^ulated and pur-
sued -according to the lex fori.
A contract Is an agreement by which a party undertakes to do or not to
do a particnlar thing.
This definition of a contract, which was restated in Ogden v. Saunders,
12 Wheat. '317, 6 L. Ed. 642, a later case involving similar reasoning, has
been quoted in numerous cases. Thus tested, the charter of a corporation
has been held to be a contract between the corporation and the people of
the State: Crescent City etc. Co. v. New Orleans, 33 La. Ann. 938. But
a school district, being a public corporate body, the rights of its inhabi-
tants, depending upon statute, are not of ti contractual nature and are
subject to legislative regulation: Farnum's Petition, 51 N. H. 381, 382.
And a judgment in an action founded upon a contract has been held to be
a contract : Sawyer v. Vilas, 19 Vt. 47. But not so in case of a judgment
founded on a tort: Peerce v. Kitzmillcr, 19 W. Va. 574. Nor is the obli-
gation to pay an award in condenmation proceedii^, a contract, according
to the ruling in Piatt v. Bright, 31 N. J. Eq. 87. Several cases deny the
contractual character of licenses allowing persons to practice law, and
uphold the right of the States to tax such licenses: Simmons v. State^
12 Mo. 271, 49 Am. Dec. 134; Languille v. State, 4 Tex. App. 321. The
definition has also been approved in Myers v. Knickerbocker Trust Co.,
139 Fed. 115, holding void Acts Gen. Assem., Mo., 1904, p. 179, c. 101,
repealing remedy of creditor to bring action at law to enforce stockholder's
statutory liability; McCormick v. Bonfils, 9 Okl. 616, 60 Pac. 299, con-
struing correspondence with reference to sale of realty; Pfaff v. Giuen,
92 Mo. App. 567, arguendo. Other cases quote the definition as a test
in determining the sufficiency of alleged coiftracts: Cincinnati etc. Ry.
Co. V. McKeen, 64 Fed. 46, 24 U. S. App. 218, holding, however, that al-
though, in its inception, the contract was insufficient, because of want of
authority in an agent to make it, yet when executed, as between the prin-
cipals, it would not be set aside. In Jordan v. Harrison, 46 Mo. App.
177, and Shuenfeldt v. Junkerman, 20 Fed. 359, it was held that the
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 87G
agieement contemplated in the definition presupposes a meeting of the
minds, and want of mutuality renders it inoperative. And in American
etc. Co. V. Bullen Bridge Co., 29 Or. 553, 46 Pac. 139, a contract to furnish
"crashed rock'' was held incomplete, because it failed to show an under-
taking to furnish a certain amount. The court in Dcpuy v. Swart, 3
Wend. 139, 20 Am. Dec. 675, declared that a discharge in insolvency dis-
charged the debt itself, and a mere acknowledgment of the debt did not
constitute a contract upon which suit could be maintained.
The obligation of a contract is the law which binds a party to perform bis
imdertaklng.
Approved in Pittsburg Const. Co. v. West Side Belt R. Co., 232 Pa. 688,
81 Atl. 888, holding valid act of May 23, 1907, making enforceable con-
tracts theretofore made by unregistered foreign corporations which, under
act of April 22, 1874, were unenforceable ; Van Hofi^an v. Quincy, 4 Wall.
552, 18 L. Ed. 409, statute authorizing city to issue bonds, and provide for
their payment by taxation held to be contract, obligation of which was
duty of city to redeem bonds. But an executory contract for which no
consideration has been given is devoid of obligation, and so not within the
constitutional prohibition, according to Gaines v. Shelton, 47 Ala. 416.
And this is true of legislative as well as private contracts: Trustees v.
Rider, 13 Conn. 96; Toung v. Harrison, 6 Ga. 156. The principal case is
cited in Wachter v. Famachon, 62 Wis. 121, 22 N. W. 161, holding that
a debtor who, by representing himself solvent, obtains a surrender of over-
due notes, and induces his creditor to accept new notes in the same
amounts, payable at a future day, fraudulently incurs an obligation, and
his property is liable to an a^chment in an action on such notes. The
definition is also approved in Exchange Bank v. Ford, 7 Colo. 316, 3 Pac.
450, in construing the term "obligation" as employed in a statute.
A law releasing any part of the obligation of a contract, impairs it to
that extent and is unconstitutional.
Approved in Lamb v. Powder Riv. etc. Co., 132 Fed. 440, 67 L. R. A.
558, 65 C. C. A. 570, law of State unreasonably restricting time for com-
mencing suit on foreign judgments on existing contracts is void ; Wilson y.
Simon, 91 Md. 6, 45 Atl. 1023, holding materialman's lien is obliterated
by repeal of statute giving such lien; Boswell v. Security Mut. Life Ins.
Co., 193 N. Y. 473, 19 L. R. A. (N. S.) 949, 86 N. E. 534, holding commis-
sion contract between life insurance company and general agent not af-
fected by section 97 of insurance law of 1906; Planters' Bank v. Sharp,
6 How. 328, 330, 12 L. Ed. 469, the court declared that the contract compre-
hended in the charter of a bank was not subject to modification by the
legislature. In Bailey v. Railroad Co., 4 Harr. (Del.) 401, 44 Am. Dec
608, it was held that where a railroad company had been authorized to
erect and maintain a bridge across a navigable stream, an action could not
be maintained against it under a later statute prohibiting the maintaining
of obstructions in such streams. So also where a settler upon State lands
has done everything requisite to acquiring title and has paid the purchase
money, the land so held is not liable to forfeiture under a subsequent
877 6TURGES v. CItOWNINSHIELD. 4 Wheat. 122-208
statute, requiring purchasers of State lands to take out grants: Winter
V. Jones, 10 6a. 196, 54 Am. Dec. 382. The rule, however, has been modi-
fied in its application to legislative contracts. Thus/ the State may, in the
exercise of its power of eminent domain, condemn a toll-bridge for use as
part of a public highway. West River Bridge' Co. v. Dix, 6 How. 542, 12
L. Ed. 549; in the exercise of its police power, it may regn^l&te the
slaughtering of cattle, a right previously granted without reserve to a
corporation. Crescent City etc, Co. v. New Orleans, 33 La. Ann. 938; and
repeal provisions in a corporate charter, in which such right of repeal is
reserved, McLaren v. Pennington, 1 Paige, 108. Charles River Bridge v.
Warren Bridge, 11 Pet. 581, 9 L. Ed. 8S7, asserts a rule contraiy to that
laid down in Micou v. Tallassee Bridge Co., infra, and holds that the mere
grant to a corporation of power to erect a bridge does not imply a contract
that the State will not authorize another bridge to be built, to the injury
of the first franchise, and a law authorizing the erection of a second bridge
is valid, although the first bridge is thereby rendered valueless. To the
same effect also is Piscataqua Bridge v. New Hampshire Bridge, 7 N. H.
69. But see contra, Micou v. ^Tallassee Bridge Co., 47 Ala. 656. The rule
is further limited in Trustees v. Rider, 13 Conn. 96, and Young v. Harrison,
6 Ga. 156, both holding that legislative contracts made without considera-
tion are revocable by the legislature so long a9 they remain unexecuted.
The general rule has also been applied in denying the right of the legis-
lature to revoke grants to municipal corporations, by virtue of which indi-
viduals have acquired vested contract rights. Thus where municipalities
have been granted j>ower to issue bonds and provide for their redemption
6y taxation, it has been held that subsequent laws calculated to restrict
such taxation were void: Van Hoffman v. Quincy, 4 Wall. 551, 18 L. Ed.
409 ; United States v. Johnson County, 5 Dill. 214, Fed. Cas. 15,489 ; County
Commissioners v. King, 13 Fla. 475; State v. Young, 29 Minn. 525, 528, 9
N. W. 739, 741. So also where bonds were issued by a State under a statute
providing that interest coupons of such bonds should be receivable in
payment of taxes due the State, a statute forbidding the receipt of such
coupons was held void: Antoni v. Greenhow, 107 U. S. 775, 27 L. Ed. 471,
2 Sup. Ct. 96. To the same effect also is People v. Hall, 8 Colo. 495, 9 Pac.
39.
Private contracts, as affected by subsequent legislation, remain to be
considered. The rule has been applied in holding that laws exempting
property from execution are inoperative in actions on contracts executed
prior to their passage: Nelson v. McCrary, 60 Ala. 311, Neely v. Henry, 63
Ala. 264, Sebatier v. Creditors, 6 Mart. (La.) (N. S.) 590, Johnson v.
Fletcher, 54 Miss. 632, 28 Am. Rep. 892, Deering v. Boyle, 8 Kan. 535, 12
Am. Rep. 489, Creighton v. Leeds, 9 Or. 217. See also the dissenting
opinions in Hardeman v. Downer, 39 Ga. 462, 463, Doughty v. Sheriff, 27
La. Ann. 360, and Sackett v. Andross, 5 Hill, 359. But such laws are
valid as operating upon contracts executed subsequent to their passage:
Howard v. Jones, 50 Ala. 69. Likewise the so-called "stay-laws" have been
denied a retrospective operation: Aycock«v. Martin, 37 Ga. 135, 92 Am.
Dec. ^64 (and see separate concurring opinion of Harris^ J., 37 Ga. 139, 142,
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 878
144, 145, 148, 155), Baily v. Gentry, 1 Mo. 170, 171, 18 Am. Dec 4^, .469,
State V. Carew, 13 Rich. 508, 91 Am. Dec. 247, Barry v. Iseman, 14 Rich.
136, 138, 139, 91 Am. Dec. 265, 266, 267, Webster v. Rose, 6 Heisk. 95, 98,
19 Am. Rep. 584, 585, dissenting opinion in Ex parte Pollard, 40 Ala. 101,
102, 103, 105. But such laws providing for stay of execution of judgments
on contracts executed after their passage are clearly valid and have been
80 held in Billmeyer v. Evans, 40 Pa. St. 327, White v, Crawford, 84 Pa. St.
437, Taylor v. Stearns, 18 Gratt. 271, 272. And a law of the same nature,
extending the term of replevin on judgments rendered, was held to have
only a prospective operation in Blair v. Williams, and Lapsley v. Brashears,
4 Litt. (Ky.) 44, 65, 78, 79, 80. The principle has also been applied in
State V. Fry, 4 Mo. 185, 186, denying the validity of a special act granting
divorce ; Orr v. Lisso, 33 La. Ann. 477, denying the retrospective operation
of a State insolvent law j Proprietors v. Laboree, 2 Me. 294, 11 Am. Dec. 94,
holding invalid an act abolishing the distinction between recorded and un-
recorded deeds; Knighton v. Bums, 10 Or. ^551, holding that a statute
providing a mode for satisfying judgments could not be construed so as
to admit of scrip as a legal tender in payment of a judgment rendered
previously. The rule is approved in the dissenting opinion in McElvain v.
Mudd, 44 Ala. 76, but denying its application to laws of the United States,
and aiguing that no recovery could be had, after the emancipation {Procla-
mation^ upon a note given for the purchase price of slaves.
Obligation of contract and remedy are distinct. Without Impairing obli-
gation, remedy may be modified at discretion of legislature.
The dictum of Chief Justice Marshall, reasserted in Ogden v. Sanders,
12 Wheat. 349, 6 L. Ed. 653, has been applied in numerous citing cases.
Imprisonment for debt, he said, was not part of the contract, and a law
abolishing such imprisonment did not impair the obligation. To this effect
also are Van Hoffman v. Quincy, 4 Wall. 553, 18 L. Ed. 409, Woodhull v.
Wagner, 1 Bald. 298, 301, Fed. Cas: 17,975, Towne v. Smith, 1 Wood. & M.
130, 131, Fed. Cas. 14,115, McCormick v. Rusch, 15 Iowa, 136, 88 Am. Dec
408, In re Penniman, 11 R. I. 338, 341, 343, 344, 350 (same case on appeal,
103 U. S. 717, 719, 26 L. Ed. 604, 605), Lowden v. Moses, 3 McCord (S. C),
102, Woodfin V. Hopper, 4 Humph. 21. And a law abolishing imprison-
ment for debt bars an arrest upon a judgment debt as well, although the
judgment be in an action of tort: In re Nichols, 8 R. I. 55, Ex parte
Hardy, 68 Ala. 318. The question as to the effect of such a law uixm bail
bonds* existing at the time of its passage has frequently arisen, and the
courts have uniformly held that such bonds were thereby discliarged:
Mason v. Haile, 12 Wheat. 378, 6 L. Ed. 663, Beers v. Houghton, 9 Pet. 359.
9 L. Ed. 157, Newton v. Tibbatts, 7 Ark. 153, Towsey v. Avery, 11 Ohio, 93,
Bronson v. Newberry, 2 Doug. (Mich.) 47, 48. But Washington, J., dis-
senting in Mason v. Haile, 12 Wheat. 379, 380, 381, 382, 6 L. Ed. 663, 664,
distinguished the principal case upon this point, and declared that a bail
bond was a contract between the surety and the creditor, and a discharge
of the debtor from imprisonment could not release the surety without im-
pairing its obligation. Durfce, J., dissenting, in In re Penninan, 11 R. I.
879 STURGES v. CROWNINSHIELD, 4 Wheat. 12^208
357, approved the general rale in admitting that a law aholishing imprison-
ment for debt barred an arrest upon a judgment, but insisted that an ex-
ception should be made where the judgment debtor had property subject
to execution but was fraudulently concealing it.
Certain cases have held that where a debtor was released from imprison-
ment in the State where the debt was contracted, he was not liable to an
arrest in another State, in an action upon the same contract: Fisher v.
Stayton, 3 Harr. 278, Pugh v. Bissel, 2 Blackf. 398. And in Wood v. Funk,
7 Ohio (pt. I), 197, it was held that a debtor discharged under a State law
was not liable to arrest under process of a Federal court sitting in that
State. Where, however, the contract in question was to be performed in
another State, the courts have applied a contrary rule: Woodhull v. Wag-
ner, 1 Bald. 298, 301, Fed. Cas. 17,975, Whittemore v. Adams, 2 Cow. 632.
A few- cases hold that laws exempting property from execution operate
only upon the remedy given for the enforcement of contracts, and hence
may exempt property which was subject to execution when a contract was
made: Hardeman v. Downer, 39 Ga. 427, 428, 431, Lessley v. Phipps, 49
Miss. 799, In re Kennedy, 2 S* C. 221, Rockwell v. Hubbell, 2 Doug. (Mich.)
203, 45 Am. Dec. 250, Stephenson v. Osborn, 41 Miss. 129, 90 Am. Dec. 3$4.
See also dissenting opinion in Danks v. Quackenbush^ 1 N. Y.. 132, 134.
The applications given by the more recent cases arc various: Bern-
heimer v. Converse, 206 U. S. 530, 51 L. Ed. 1174» 27 Sup. Ct. 755, holding
contractual obligations arising out of Minn. Gen. Stats. 1894, chapter 76,
enforcing liability of stockholders, not impaired by Minn. Gen. Laws 1899,
chapter 272, authorizing assessment without personal service; Wilson v.
Standef er, 184 U. S. 416, 46 L. Ed. 619, 22 Sup. Ct. 391, holding Texas act
of August 20, 1897, did not impair contract rights of purchaser of school
lands under aet of July 8, 1879 ; In re Rhoads, 98 Fed. 402, holding bank-
ruptcy act of 1898, § 67f , does not impair obligation of contracts ; Aikins
V. Kingsbury, 170 Cal. 681, 151 Pac. 148, holding act of 1889, providing
for forfeiture of school lands to State if purchaser did not within six
months pay up principal and interest in arrears, not to impair obligation
between State and defaulting purchaser of such lands under statute 1868;
Central Glass Co. v. Niagara Fire Ins. Co., 131 La. 517, 59 South. 974, hold-
ing act 1908, No. 168, § 3, relating to payment of fire insurance loss within
sixty days under penalty inapplicable to policies issued before law became
effective ; Monteleone v. Seaboard Fire etc. Ins. Co., 126 La. 810, 52 South.
1034, holding valid Aet No. 168 of 1908, relating to payment of fire insur-
ance loss ; State Sav. Bank v. Matthews, 123 Mich.* 59, 81 N. W. 919, up-
holding Pub. Acts 1899, No. 200, shortening time of foreclosure sales, does
not affect obligation of contracts in mortgages executed prior to its adop-
tion ; Kirkman v. Bird, 22 Utah, 111, 58 L. B. A. 669, 61 Pac. 339, holding
exemption 4aw does not impair obligation of contracts ; Oshkosh Water-
Works Co. V. City of Oshkosh, 109 Wis. 218, 227, 85 N. W. 380, 383, hold-
ing amendment to city charter changing person on which notice of appeal
from disallowance of claim was to be served does not impair contract
obligation.
Laws providing for a stay of execution have been upheld, although pur-
porting to operate upon judgments rendered upon contracts executed prior
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 880
to tlieir passage. The authorities go upon the ground that the same rem-
edy exists as before the passage of the stay law, its enforcement being
merely jxistponed. Beeson v. Beeson, 1 Harr. 470; Famsworth v. Vance,
2 gold. 118; Ex parte Pollard, 40 Ala. 88; Wardlaw v. Buzzard, 15 Rich.
160, 94 Am. Dec. 149. See also the dissenting opinions in Aycock v.
Martin, 37 Ga. 174, 177, 179, 92 Am. Dec. 66, 67; Jacobs v. Smaliwood,
63 N. C. 124 ; State v. Carew, 13 Rich. 537, 91 Am. Dec. 247. Of the same
nature are laws abolishing courts, and providing for the assumption of
jurisdiction by other courts, thus delaying the rendition of judgments.
Such a law was held valid in Newkirk v. Chapron, 17 111. 348. So also
in Tilton v. Swift, 40 Iowa, 80, a statute empowering a court to postpone
the receipt of verdicts and entry of judgments, was held valid as to actions
pending. Following this principle, laws providing for the continuance of
actions against persons in the military service of the United States have
been upheld. McCormiek v. Rusch, 15 Iowa, 131, 133, 83 Am. Dec. 404,
405; Edmonson v. Ferguson, 11 Mo. 345. Likewise laws suspending stat-
utes of limitations or extending the time provided in such statutes. Ward-
law V. Buzzard, 15 Rich. 160, 94 Am. Dec. 149; Bishop v. Wilds, 1 Harr.
102. The Louisiana courts, following this rule, have upheld the "respite
laws'' of that State, which, going upon the assumption that embarrassed
debtors could eventually pay their debts, gave them an additional time
to pay after the debts were due. Rasch v. Creditors, 3 Rob. (La.) 409;
Anderson v. Creditors, 33 La. Ann. 1161.
There is some State authority for holding that laws allowing mortgi^rs
a limited time in which to redeem property before final sale under fore-
closure, affect only the remedy and apply to mortgages executed previously :
Bugbee v. Howard, 32 Ala. 716; Beverly v. Bamitz, 55 Kan. 468, 469,
42 Pac. 726 ; State v. Gilliam, 18 Mont. 99, 100, 44 Pac. 395, 396. But in
Bronson v. Kinzie, 1 How. -311, 11 L. Ed. 143, the Supreme Court of the
United States, in the case of a mortgage with power of sale, denied the
right to extend the period of redemption by subsequent law, on the ground
that the obligation and not the remedy merely would be impaired. Mc-
Lean, J., dissenting, relied upon the principal case. 1 How. 328, 11 L. Ed.
149. See also the dissenting opinion in Scobey y. Gibson, 17 Ind. 578,
where the majority held that an act providing for the redemption of
property sold on execution was inoperative as to sales under judgments
rendered upon contracts executed previous to its passage.
Laws regulating procedure and practice in the courts are also valid
if they operate only upon the remedy : Cutts v. Hardee, 38 Ga. 355, 367.
and Miller v. Smith, 16 Wend. 441, sustaining laws changing the rules of
evidence regarding the payment of debt; Scott v. Duke, 3 La. Ann. 253,
holding valid a law regulating the form of proceeding to enforce judgments
by executory process; Ex parte Bibb, 44 Ala. 152, upholding a law author-
izing the granting of new trials on grounds not previously recognized;
In re Kirkland, 14 Fed. Cas. 678, upholding a law changing rules of pro-
cedure in Admiralty Courts ; Rader v. Road District, 36 N. J. L. 277, hold-
ing an act depriving the prevailing party of costs in certain actions to be
operative in actions on contracts previously made; Searcy v. Stubbs, 12
Ga. 439, holding that a statute providing for the survival of certain
881 STURGES v. CROWNINSHIELD. 4 Wheat. 122^208
actions operated upon an action pending at the date of its passage ; Bigelow
v. Pritchard, 21 Pick. 173, giving same effect to a law providing that
upon an assignment by a debtor, all his property shall vest in assignees,
and attachments be dissolved; Vanzant v. Waddel, 2 Terg. 271, sustaining
a law giving new and additional remedies to creditors; Elliott v. Mayfield,
4 Ala. 424, upholding a law authorizing an estecution against the surety of
an executor when execution against the latter is returned unsatisfied; and
in Hill V. Insurance Co., 134 U. S. 527, 83 L. Ed. 998, 10 Sup. Ct. 592,
holding valid a law providing for a remedy against individual stockholders
when judgment against the corporation is not satisfied.
A number of cases, while recognizing the soundness of the general rule,
limit its application to those laws which, in modifying the remedy, do not
operate to impair the obligation itself. The following eases show the
extent to which this limitation has been applied: Commissioners' Court v.
Rather, 48 Ala. 447, holding that municipal bonds cannot be impaired by
laws postponing the ^ate of redemption ; County Commrs. v. King, 13 Fla.
476, holding void a law limiting taxes to an amount insufficient to meet
such bonds; Robinson v. Magee, 9 Cal. 85, 70 Am. Dec. 641, denying the
power of the legislature to enact that county warrants not presented before
a certain day shall be void; Wilder v. Lumpkin, 4 Ga. 220, denying the
retroactive operation of a law providing that sureties upon appeal and
injunction bonds need not be made parties to writs of error; Temple v.
Hays, Morris, 12^ of a law providing that fraud may be set up against
a note in the hands of an innocent purchaser; Long v. Walker, 105 N. C.
98, 10 S. E. 859, of a rep'^aling statute providing that prevailing parties
in actions on contract shall not recover costs; State v. McPeak, 31 Neb.
143, 47 N. W. 692, of a statute repealing a law which provided that lessees
should have power to choose one of the appraisers to value the property
at the expiration of the lease; Foltz v. Huntley, 7 Wend. 216, of law dis-
annulling covenants in a lease; Bank of Dominion v. McVeigh, 20 Gratt.
466, of a law authorizing the satisfaction of debts in Confederate cur-
rency ; Roberts v. Cocke, 28 Gratt. 215, of a statute conferring upon courts
the power to remit interest upon contracts; Mundy v. Monroe, 1 Mich. 71,
76, of a law prohibiting an action of ejectment by a mortgagee until after
foreclosure; Swinburne v. Mills, 17 Wash. 619, 61 Am. St. Bep. 938, 50
Pac. 491, of a statute repealing a law which provided for immediate sale
of mortgaged land, upon default of mortgagor; Goggans v. Turnipseed,
1 S. C. 82, 98 Am. Dec. 398, of a law providing that debts due upon open
accounts shall bear interest. See also the dissenting ot)inion in Watkins v.
Glenn, 55 Kan. 435, 40 Pac. 320, asserting the invalidity of redemption
laws. In Auld v. Butcher, 2 Kan. 156, the limitation was approved, but
was considered inapplicable where the parties had assented to the provi-
sions of the law in question. State Constitutions have also been held to
be subject to the rule thus limited, and when such Constitutions, while
purporting to modify a remedy, in ia^t impair the obligation of existing
contracts, they are repugnant to the Federal Constitution and void.
Jaooway v. Denton, 25 Ark. 641 ; Homestead Cases, 22 Gratt. 287^ 288, -
12 Am. Rep. 514, 615*
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 882
Two State cases go still further and criticise the general rule in its
liability to misconstruction and abuse. Thome v. San Francisco, 4 Cal.
140; The Sequestration Cases, 30 Tex. 699, 98 Am. Dec. 501.
Miscellaneous citations upon this point : Simpson y. Bank, 56 N. H. 470,
22 Am. Rep. 494, holding valid an act authorizing a reduction of deposit
accounts of insolvent banks, so as to divide losses equitably among stock-
holders; Moore v. Letehford, 35 Tex. 215, 216, 14 Am. Rep. S68, 369,
upholding an act providing that judgments shall constitute liens upon
property; Moore v. Holland^ 16 S. C. 24, 29, 30, construing a statute pro-
viding that judgments shall not constitute liens upon property; Garland
V. Brown, 23 Gratt. 176, 178, sustaining the validity of an act authorizing
the sale of property on credit at forced sales ; Common Council v. Assessors,
91 Mich. 116, 51 N. W. 799, and Schoenheit v. Nelson, 16 Neb. 230, 20
N. W. 206, holding valid a law authorizing mortgagors to pay taxes
assessed against mortgage interest in case of mortgagee's default, and
deduct same from mortgage debt; Williams v. Haines, 27 Iowa, 254,
1' Am. Rep. 270, giving a retroactive effect to a statute abolishing the
distinction between sealed and unsealed instruments; Reapers' Bank v.
Willard, 24 111. 438, 76 Am. Dec. 758, upholding a law changing manner
prescribed for redeeming bank bills; Maynes v. Moore, 16 Ind. 122, a law
changing the mode of acquiring title under sale from the State ; Tennessee
V. Sneed, 96 U. S. 73, 24 L. Ed. 612, a law providing that in case of
wrongful taxation, the taxpayer shall pay under protest and sue to recover
within thirty days; Railroad Co. v. Hecht, 95 U. S. 170, 24 L. Bd. 424,
a law providing a mode for serving process upon a corporation different
from the one prescribed in its charter; Cook v. Grtiy, 2 Houst. 46^, 81
Am. Dec. 188, a law dispensing with affidavits previously required in the
obligation of the recognizance of special bail; Chamberlain v. Insurance
Co., 55 N. H. 265, a law providing that insurance policies shall not be
avoided by reason of mistake or misrepresentation, in absence of fraud.
And see dissenting opinion in Second Ward Bank v. Schranck, 97 Wis. 271,
73 N. W. 38. Ex parte Hull, 12 Fed. Cas. 853, 855, cited the principal
case approvingly upon this point, in a discussion of the general subject.
An Alabama case has applied the principle in upholding a penal statute
making it an indictable offense for any person who has built a publio
bridge by contract, to "knowingly suffet such bridge to remain out of
repair." Blann v. State, 39 Ala. 355, 84 Am. Dec. 788,
Constitutionality of exemption statutes relating to personal property.
^ Note, 45 Am. Dec. 251.
Prohibiting revival of judgments as impairment of obligation of eon-
tracts. Note, 3 Ann. Oba. 1148.
«
Statutes of limitations relate to remedies which are furnished in courts.
They rather establish that certain circumstances shall amount to evidence that
contract has been performed than dispense with its performance.
Approved in Dem v. Olsen, 18 Idaho, 367, Ann. Cas. 1912A, 1, L. R. A.
1915B, 1016, 110 Pac. 167, holding facts to establish acknowledgment of
883 STURGES v. CROWNINSHIELD, 4 Wheat. 122-208
^ontinuiiig debt within section 4078 of Idaho Revised Statutes, and to set
new date from which statute begins i9 run; Kelly v. Leachman, 3 Idaho,
634, 33 Pac. 45, holding running of statute of limitations does not ex-
tin^ish debt or impair' mortgage lien; Fitzgerald v. Flanagan, 155 Iowa,
221, Ann. Cas. 1914C?; 1104, 135 N. W. 740, holding that though original
mortgagor is dead, fact that no claim was made against his estate, and is thus
barred, will not defeat right to foreclose against present holders of land, in
absence of bar of lihiitations ; Louisville etc. N. R. R. Co. v. Williams,
103 Ky. 378, 45 S. W. 230, holdii^ repeal of railroad charter provision
thft owner of stock kiUed must sue within six months does not impair
obligation of contracts; Soper v. Lawrence Bros. Co., 98 Me. 284, 56 Atl.
913^ holding thiCt Pub. Laws 1895, p. 192, c. 162, is statute of limitations
and repose as to all pre-^xii^ing titles and is valid ; Cranor v. School Dist., 151
Mo. 125, 52 S. W. 233, applying principle to action on judgment ; Graves v.
Howard, 159 N. C. 602, Ann. Cas. 19140, 565, 75 S. E.* 1001, holding Revisal
1905, N. C, § 1044, not to impair obligation of power of sale under mort-
gage foreclosure executed when there was no limitation; Menzel y. Hinton,
132 N. C. 662, 95 Am. St. Bep. 647, 44 S. E. 386, arguendo.
The principal case has also been cited as authority for holding that,
as statutes of limitations relate directly to the remedy provided for the
enforcement of contracts, they may operate retrospectively. It would
seem, however, the Chief Justice Marshall's opinion was to the contrary,
and that he drew a distinction in the ease of statute of limitations, for
he says in the same paragraph from which the above rule was taken
that "if, in a State where six years may be pleaded in bar to an action of
assumpsit, a law should pass declaring that contracts already in existence,
not barred by the statute, should be construed to be within it, there could
be little doubt of its unconstitutionality." This language was so con-
structed by Trimble, J., in Ogden v. Saunders, 12 Wheat. 326, 6 L. Ed. 645.
The principal case has, however, been uniformly cited as authority for
allowing a retrospective operation to statute of limitations^ provided a
reasonable time is left for the commencement of an action before the bar
takes effect. To this effect are the following cases: Terry v. Anderson,
95 U. S: 633, 24 L. Ed. 366, Koshkonong v. Burton, 104 U. S. 675, 26
L. Ed. 889, Vance v. Vance, 108 U. S. 521, 27 L. Ed. 811, 2 Sup. Ct. 859,
Cleveland Ins. Co. v. Reed, 1 Diss. 186, Fed. Cas. 2889, Barker v. Henry,
1 Paine, 570, Fed. Cas. 989, Griffin v. McKenzie, 7 Ga. 166, 60 Am. Dec.
891, Blackford v. Peltier, 1 Blackf. 36, Lewis v. Harbin, 5 B. Mon. 567,
Louisville etc. R. R. Co. v. Williams, 41 S. W. 287, s. c, 45 S. W. 230,
Mason v. Walker, 14 Me. 166, State v. Jones, 21 Md. 438, Briscoe v. Ankc-
tell, 28 Miss. 371, 61 Am. Dec. 556, Stephens v. Bank, 43 Mo. 389, Smith
V. Tucker, 17 N. J. L. 86, Morse v. Goold, 11 N. Y. 288, 62 Am. Dec. 107,
and Strickland v. Draughan, 91 N. C. 104. In United States v. Woolsey,
28 Fed. Cas. 768, 771, the principal case, is cited to this point in liolding
that a statute providing that all pecuniary penalties and forfeitures accru-
ing to the United States should be sued for whereever the offender might
be found, related only to the remedy and could operate retrospectively.
The reasonableness of the time allowed for bringing actions upon existing
4 Wheat. 122-208 NOTES ON U. S. REPORTS. 884
contracts is recognized as the true test of the validity of thise statntes
in McGahey v. Virginia, 135 U. Si. 705, S4 L. Ed. 817, 10 Snp. Ct. 985,
where a statute limiting the time for bringing actions upon bonds to one
year, was held, under the circumstances of the case, to be inoperative as
to existing causes of action. To the same effect also* are Berry v. Ransdall,
4 Met. (Ky.) 294, and Eakin v. Raub, 12 Serg. & R. 372. The rule thus
developed is criticised in Pope v. Ashley, 13 Ark. 268, the constitution-
ality of the act in question being denied, however, upon other grounds.
Upon the principle that a statute of limitations, in operating upon^he
remedy alone, thus leaves the obligation unimpaired, several cases ftve
held that where the security for a debt is a lien upon property, it is still
enforceable as such, although the remedy at law for the^ recovery of the
debt is barred. Accordingly where an action ilpon a judgment is biirred
by statute, the lien of a docketed judgment may still be enforced. Walter-
mire V. Westover, 14' N. Y. 20, Williams v. MuUis, 87 N. C. 161, Berry v,
Corpening, 90 N. C. 398. And a mortgage given as security for a note
is not barred by a stat\|te barring action upon the note. Myer y. Beal,
5 Or. 130, Browne v. Browne, 17 Fla. 628, 85 Am. Bep. 106.
Another result of this theory as to the operation of statutes of limita-
tions is the rule that the remedy may be revived by a new promise to pay
a debt which has been barred. This rule is applied in Oliver v. Gray,
1 Har. & G. 214, in which the principal case is cited. See also the dis-
senting opinion in Currier v. Studley, 159 Mass. 26, 33 N. E. 712, where
the principal case is cited approvingly in discussing the general subject.
Statutes of limitations are part of lex fori. In Le Roy v. Crowninshield,
2 Mason, 169, Fed. Cas. 8269, it was held that as such statutes operate upon
remedies, they form a part of the lex fori, and that a plea of the statute
of the State where a contract is made will not avail in a suit brought
in another State to enforce that contract. Story, J., who wrote the opin-
ion, reluctantly applied the rule which he admitted- was well established,
but argued in favor of a contrary rule. The court, in Gk)odman v. Munks,
8 Port. 89, adopted his reasoning, holding -that where the maker of a not©
remained in the State where the note was made, until a statute of that
State barred a recovery upon it, the bar was an effectual defense in an
action on the same note in another State.
Although spirit of an instrument is to be respected not less than its
letter, yet spirit is to be collected chiefly from its words. It cannot be
inferred from extrinsic circumstances that a case for which the words
of an instrument expressly provide shall be exempted from its operation.
This rule has been applied in the following cases in construing various
statutes: Cherokee Nation v. Georgia, 5 Pet. 42, 8 L. Ed. 40, Railway Co.
V. B'Shears, 59 Ark. 243, 27 S. W. 4, People v. Weller, 11 Cal. 86, State
V. Clarke, 21 Nev. 337, 87 Am. St. Rep. 520, 31 Pac. 546, Cory v. Carter,
48 Ind. 337, 17 Am. Rep. 745; Waterhouse v. Martin, Peck (Tenn.), 383,
Bradford v. Treasurer, Peck (Tenn.), 437, Talbot v. McGavock, 1 Yerg.
284, State v. McCann, 4 Lea, 13, Home Ins. Co. v. Taxing District, 4 Lea,
653, State v. Phoenix Ins. Co., 92 Tenn. 435, 21 S. W. 896, Cline v. State,
36 Tex. Cr. 350, 61 Am. St. Eep. 868, 36 S. W. 1107 , Hanson v. Eicbstaedt,
885 STURGES v^ CROWNINSHIELD. 4 Wheat. 122-203
69 Wis. 546, 35 N. W. 33, State v. District Board etc., 76 Wis. 209, 20 Am.
St. Bep. 59, 44 N. W. 978, State v. Cunningham, 83 Wis. 142, 36 Am. St.
Rep. 49, 53 N. W. 55. See also the dissenting opinion in Burks v. Hinton,
77 Va. 42. The principle is also applied in Patton v. McClure, Mart. & Y.
350, in holding that a court of equity has no power to relieve against the
provisions of a statute prescribing rules of evidence. So also in Hatha-
way V. Johnson, 55 N. T. 95, 14 Am. Rep. 188, holding that statutes author-
izing imprisonment for debt, while remedial to the extent that they are
designed to coerce payment, are also to be regarded as penal and not to
be extended so as to embrace cases not clearly within them.
The rule has also been applied as follows: Approved in Jacobson y.
Massachusetts, 197 U. S. 22, 49 L. Ed. 648, 25 Sup. Ct. 358, upholding
Massachusetts compulsory vaccination act; Pirie v. Chicago Title & Trust
Co., 182 U. S. 452, 45 L. Ed. 1179, 21 Sup. Ct. 912, construing bankruptcy
act July 1, 1898, chapter 541, section 60, relative to preferences; State v.
Cole, 38 Nev. 232, 148 Pac. 556, construing Statutes of 1913, chapter 128,
creating commission for Panama-Pacific and Panama-California exposi-
tions; Roberts v. Bowen Mfg. Co., 169 N. C. 34, 85 S. E. 49, construing
Revisal 1905, § 1131, providing that mortgage on corporation's property
shall not exempt it from executions for labor performed, and § 1206,
making claims of employee of insolvent corporation first lien upon its as-
sets; Landswick v. Lane, 49 Or. 411, 90 Pac. 491, construing city chartdr
provisions concerning residence within city, as applied to laborers em-
ployed by city and to civil service qualifications; Ex parte Anderson, 46
Tex. Cr. 379, 81 S. W. 975, city court has no jurisdiction to try an accused
fo^ alleged violation of State penal statute; dissenting opinion in Blair v.
Chicago, 201 U. S. 502, 50 L. Ed. 843, 26 Sup. Ct. 427, majority holding
right to operate street railways under acts of 1859 and 1865 is confined
to streets designated in original ordinance; dissenting opinion in Fee v.
Durham, 121 Fed. 471, construing Rev. Stat. 2324, as amended in 21 Stat.,
c. 9, p. 61, relating to assessment work on mining locations; dissenting
opinion in Chauncey v. Dyke Bros., 119 Fed. 16, construing Ark. Acts
1895, p. 217, ? 3, relative to mechanics' liens ; dissenting opinion in Jackson
V. Corporation Commission, 130 N. C. 427, 42 S. E. 138, construing Pub.
Laws 1901 (machinery act).
Federal bankruptcy act is valid.
Approved in Watson v. St. Louis etc. Ry. Co., 169 Fed. 954, holding
valid. Employer's Liability Act of Congress, Act April 22, 1908, c. 149,
35 Stat. 65.
Iiin6 of partition between bankruptcy and insolvency laws is not dis-
tinctly marked.
Approved in Grunsfeld Bros. v. Brownell, 12 N. M. 198, 76 Pac. 3ll,
holding chapter 67, Sess. Laws 1889, not bankruptcy law and not suspended
by national bankruptcy law 1898; Pelton v. Sheridan, 74 Or. 183, 144 Pac.
412, holding valid, general assignment of property by debtor, if not at-
tacked by Federal bankruptcy proceedings within time limited therefor.
Effect of partial invalidity of statute. Note, Ann. Gas. 1916D, 87.
4 Wheat. 209-213 NOTES ON U. S. REPORTS. 886
Miscellaneous citations. The remaining cases cite the principal case upon
points as to which its authority may be considered at least doubtful.
The statement that ''nothing but gold and silver coin can be made a tender
in payment of debt," has been rightly explained in Juilliard v. Greenman,
110 U. S. 442, 28 L. Ed. 212, 4 Sup. Ct. 127, and Van Husan v. Kanonse,
13 Mich. 312, to be merely a statement in argument of one of the constitu-
tional restrictions upon the States. Still it has been cited as implying
a constitutional restriction upon Congress. Dissenting opinions in The
Legal Tender Cases, 12 Wall. 619, 620, 667, 20 L. Ed. 834, 350, Juilliard v.
Greenman, 110 U. S. 453, 28 L. Ed. 216, 4 Sup. Ct. 132. A State case
has also quoted the language to this effect. Baltimore etc. R. R. Co. v.
State, 36 Md. 539, 551. On the point that the unconstitutionality of a
part of a statute need not render the whole statute void, the principal
case is cited as authority In Mobile etc. Ry. Co. v. State, 29 Ala. 584, State
V. Marsh, 37 Ark. 361, and Campbell v. Bank, 6 How. (Miss.) 677. In
Dale V. Governor, 3 Stew. 418, the principal case has been cited as an in-
stance where the Supreme Court exercised its function of interpretation
in declaring a legislative act void. And it has been relied upon as show-
ing a distinction between the functions of the legislature and the judiciary ;
Lawson v. Jeffries, 47 Miss. 706, 12 Am. Rep. 354. The statement in the
opinion in the principal case that it was "confined to the case actually
tinder consideration," p. 207, has led to its citation on the point that posi-
tive authority of a decision extends only to the facts upon which it was
made. Steamboat Co. v. Livingston, 3 Cow. 726, dissenting opinion in
Toomer v. Dickerson, 37 Ga. 445. See also Shields v. Mahoney, 94 Va.
490, 27 S. E. 24, where the principal case is held not to be inconsistent
with a holding that a debtor may make a valid assignment to a bona fide
creditor, although the intention of the debtor be fraudulent. In Famum's
Petition^ 51 N. H. 381, the principal case is cited as authority for holding
that the rights of a public corporation are not founded upon eontraet,
and so may be regulated by the l^slature. It is cited erroneously in
Tait V. New York Life Ins. Co., l.Flipp. 321, Fed. Cas. 13,726; Hanover
Nat. Bank v. Moyses, 186 U. S. 186, 46 L. Ed. 1118, 22 Sup. Ct. 859, hold-
ing bankruptcy law of 1898 is not void because others than traders may
be adjudged bankrupts.
4 Wheat. 209-213, 4 K Ed. 552, McMILLAN v. McNEILK
Discharge under foreign bankrupt law is no bar to an action in courts of
this country.
Cited in Ogden v. Saunders, 12 Wheat. 254, 255, 272, 333, 6 L. Ed. 620,
626, 647, Cook v. Moffat, 5 How. 308, 309, 316, 12 L. Ed. 166, 166, 169,
Baldwin v. Hale, 1 Wall. 228, 17 L. Ed. 532 (see also Hale v. Baldwin,
1 Cliff. 514, Fed. Cas. 5913), all denying extraterritorial effect of State insol-
vent laws; Woodhull v. Wagner, 1 Bald. 298, 299, 301, Fed. Cas. 17,975,
as to discharge from imprisonment under State law; Byrd v. Badger,
McAU. 265, Fed. Cas. 2265, holding discharge under State law not plead-
able in bar to action on foreign contract; Newton v. Hagerman, 10 Sawy.
887 MCMILLAN v. McNEILL. 4 Wheat. 209-213
402, 22 Fed. 526, holding foreign creditor not barred by such discharge
unless he was party to insolvency proceedings; Towne v. Smith, 1 Wood.
& M. 127, Fed. Cas. 14,115, that if note is payable to indorser living outside
State of discharge, action is not barred; Smith v. Mead, 3 Conn. 256,
8 Am. Dec. 184, holding discharge in New York to be no bar to action in
Connecticut on note made and payable in Canada, although parties were
citizens of New York when discharge granted; Woodbridge v. Wtright,
3 Conn. 527, holding judgment obtained in one State not discharged under
law of another State where original debt contracted; Norton v. Cook, 9
Conn. 319, 28 Am. Dec. 845, holding further that, foreign creditor does not
waive extraterritorial immunity by appearing and contesting discharge.
Erroneously cited in Very v. McHenry, 29 Me. 215, on point that discharge
in State of contract will bar foreign creditor. Cited and principle applied
in Poe V. Duck, 5 Md. 9, holding foreign creditor not barred by discharge
in State of contract; opinion of Campbell in Brighton Market Bank v.
Merick, 11 Mich. 417, where court divided in opinion as to whether note
executed in Michigan between residents of that State, but indorsed to
resident of New York, was barred by discharge in former State; Whitney
V. Whiting, 35 N. H. 466, holding judgment obtained in one- State in favor
of citizen or another not affected by discharge in former; Witt v. Follett,
2 Wend. 458, holding contract to be performed out of State granting dis-
charge not discharged, although parties residents of such State; Hicks
v. Hotchkiss, 7 Johns. Ch. 311, 312, 11 Am. Dec. 481, 482, holding foreign
creditor not barred ; Hoyt v. Thompson, 5 N. Y. 349, ruling similarly where
debt contracted in State of discharge, but assigned to foreign creditor ;^
Donnelly v. Corbett, 7 N. Y. 503^ holding foreig^n judgment creditor not
barred; dissenting opinion in Soule v. CHase, 39 N. Y. 348, majority hold-
ing foreign creditor barred by acceptance of dividend under discharge;
Herring v. Selding, 2 Aik. 17, holding discharge in one State not pleadable
in bar to action in another under any state of facts. Cited and principle
applied in Bedell v. Scruton, 54 Vt. 495, holding foreign creditor not
barred, although contract made and to be performed in State of discharge ;
McDougall v. Page, 55 Vt. 191, 195, 46 Am. Rep. 603, 607, holding creditor
resident in Canada not barred by discharge under United States bankrupt
act ; Pugh v. Bussel, 2 Blackf . 400, 401, and Beers v. Rhea, 5 Tex. 355, 367,
361, arguendo.
Distinguished in Channing v. Reiley, 4 Cr. C. C. 529, Fed. Cas. 2596,
holding debtor discharged from imprisonment in New York, upon surrender
of all his property, to be ^empt from arrest in District of Columbia;
Hempstead v. Reed, 6 Conn. 489, 490, where parties were residents of
State of discharge, although note executed elsewhere; Marsh v. Putnam,
3 Gray, 555, 556, 561, and Sherrill v. Hopkins, 1 Cow. 105, 106, holding
discharge to be bar to action between citizens of State of discharge, al-
though contract made and to be performed elsewhere; Bank of Utica v.
Card, 7 Ohio (pt. U), 170, holding discharge in New York of contract
made there and between citizens of that State, pleadable in bar to action
in Ohio; Peck v. Hibbard, 26 Vt. 704, 62 Am. Dec. 609, holding discharge
4 Wheat. 2ia-225 NOTES ON U. S. REPORTS. 888
good by lex loci contractus to be good eveiywhere, irrespectiye of domi-
cile of parties.
Effect of foreign discharge in bankruptcy. Note, 62 Am. Dec. 618.
State insolTent law cannot operate to discharge deht contracted previ9a8
to its passage.
Approved in In re Salmon, 143 Fed. 405, Rev. Stats. M«l, §§ 1305, 1306,
relating to insolvent state banks, was suspended by bankruptcy act, and
participation by creditors in proceedings thereunder did not estop creditors
from thereafter prosecuting bankruptcy proceeding against debtors; Farm-
ers' etc. Bank v. Smith, 6 Wheat. 134, 5 L. Ed. 225, following rule; In re
Klein, 14 Fed. Gas. 723 (overruled, see 1 How. 278, 11 L. Ed. 180), holding
that act of Congress cannot operate retrospectively; Bailey v. Railroad
Co., 4 Harr. (Del.) 401, 44 Am. Dec. 608, holding void a statute giving
right of action for maintaining previously authorized obstructions in navi-
gable river; Deering v. Boyle, 8 Kan. 535, 12 Am. Rep. 489, denying retro-
active effect of statute exempting married woman's separate property
from liability for her debts; Knighton v. Bums, 10 Or. 552, holding void,
as to pre-existing debts, act making scrip legal tender; Boardman v. De
Forest, 5 Conn. 12, and Norton v. Cook, 9 Conn. 318, 28 Am. Dec. 844,
both arguendo.
Distinguished in Ogden v. Saunders, 12 Wheat. 315, 6 L. Ed. 641, and
Wilson V. Mathews, 32 Ala. 342, as to debts contracted subsequent to
enactment of law; Hundley v. Chaney, 65 Cal. 363, 4 Pac. 238, holding that
amendatory act may discharge debts contracted prior to its passage if it
does not impair rights of creditors under original act.
Criticised in dissenting opinion in Aycock v. Martin, 37 Ga. 179, majority
holding ''stay law" void as affecting prior contracts. Distinguished in
Blair v. Williams, 4 Litt. (Ky.) 41, holding stay law valid as to subsequent
contracts; Mather v. Bush, 16 Johns. 247, 253, 8 Am. Dec. 315, 320, and
Smith V. Parsons, 1 Ohio, 237, 13 Am. Dec. 609, sustaining validity of law
discharging subsequent debts; Pugh v. Bussel, 2 Blackf. 398, holding that
law may provide for discharge from imprisonment on debt contracted
previous to its passage.
What demands may be discharged under State insolvent laws. Note,
28 Am. Dec. 847.
Note. — The principal case approved, generally, the holdings in Sturges
V. Crowninshield, 4- Wheat. 122, and hlus been cited with that case on the
second point. *
4 Wheat. 213-226, 4 L. Ed. 553, BABB Y. GBATZ.
Befosal to grant new trial is not ground for writ of error.
Cited in Wright v. HoUings worth, 1 Pet. 169, 7 L. Ed. 98, refusing to
review decision of Circuit Court allowing filing of new count in ejectment;
Zacharie v. Franklin, 12 Pet. 163, 9 L. Ed. 1040, and Brown v. Clarke, 4
How. 15, 11 L. Ed. 855, denying writs upon that ground; Jones v. Van
Zandt, 5 How. 224, 12 L. Ed. 126, holding that sufficiency of grounds for
889 B ARR v. GRATZ. 4 Wheat. 213-226
new trial cannot be subject of certificate of division; Pomeroy v. Bank,
1 Wall. 598y 17 L. Ed. 640, affimung entry of judgment after motion for
new trial denied; Insurance Co. v. Barton, 13 Wall. 604, 20 L. Ed. 709, a
similar case; Railway Co. v. Twombly, 100 U. S. 81, 25 L. Ed. 560, affirm-
ing decision of lower court refusing to set aside verdict; Poole v. Nixon,
9 Pet. Appx. 770, 9 L. Ed. 806, 19 Fed. Cas. 995, ruling similarly as to
refusal of lower court to open decree for revision upon new mattcn* alleged ;
State V. Hunt, 4 La. Ann. 439, State Supreme Court refusing to review
decision of lower court denying new trial in criminal case ; State v. Brette,
6 La. Ann. 660, and State v. Muldoon, 9 La. Ann. 26, ruling similarly as
to refusal to continue criminal cause ; McCourry v. Doremus, 10 N. J. L.
249, as to refusal to grant continuance of civil cause; Coleman v. Bell,
4 N. M. 47, 12 Pac. 668, 3 N. M. 497, as to refusal to grant new trial in
action of ejectment; Law v. Merrills, 6 Wend. 278, in action on note;
Smith v. United States, 1 Wash. Ter. 274, refusing to review decision of
District Court denying new trial in criminal cause; Territory v. Doty, 1
Pinn. 404, holding writ not to lie to order granting new trial on ground
that verdict is against law; Sparrow v. Strong, 3 Wall. 106, 18 L. Ed. 50,
where writ granted upon other ground^.
Distinguished in Yarber v. Chicago etc. Ry. Co., 236 111. 599, 86 N. E.
932, under act of July 21, 1837, and Practice Act, § 77, rulings at trial
upon questions of law, incorporated in bill of exceptions, may be reviewed,
without motion for new trial; QiUiland v. Rappleyea, 16 N. J. L. 143,
allowing writ of error where court, having set aside verdict on motion of
plaintiff, gives judgment for defendant; Welch v. County Court, 29 W. Va.
68, 1 &.E. 340, holding refusal to grant writ of certiorari reviewable by
higher court on writ of error.
Decree in chancery under which title to land has been made is admissible
as one of links in chain of title, although inter alios.
Approved in Chapman v. Moore, 151 Cal. 515, 121 Am. St. Rep. 130, 91
Pac. 326, holding judgment against A, vesting title* to land in B, admis-
sible in subsequent action against C; Wardlaw v. McNeill, 106 Ga. 33^ 34,
31 S. E. 787, holding equity decree declaring certain lands to be held in
trust is admissible as evidence of color of title to base claim for pre-
scriptive title; Applegate v. Mining Co., 117 U. S. 261, 263, 29 L. Ed. 898,
894, 6 Sup. Ct. 744, 745, holding that where ancient deed forms part of
papers in suit, record is admissible in later suit to show antiquity of deed ;
Pacific Bank v. Hannah, 90 Fed. 79, but holding judgment in partition
suit not conclusive of title of parties not joined; Snider v. Greathouse, 16
Ark. 79, 63 Am. Dec. 59, holding judgment against l^^i^s of deceased surety
admissible as evidence of amount paid, in action against administrator;
Wells V. Francis, 7 Colo. 418, 4 Pac. 52, affirming order admitting decree
awarding vendor's lien as evidence in action upon title bond; Hardwick
V. Hook, 8 Ga. 359, holding decree in chancery determining ownership of
slaves admissible in evidence to show right of receiver of such owner
to maintain assumpsit for their hire; Whitman v. Henebery, 73 111. 116,
holding decree of partition admissible in collateral action of ejectment;
4 Wheat. 213-225 NOTES OK U. S. REPORTS. 890
Gage V. Gondy, 141 IlL 220, 30 N. E. 321, holding decree of partition
admissible as evidence of title in action to set aside tax deed; Head v.
McDonald, 7 T. B. Mon. 207, holding judgment in suit on note against
indorser admissible in action against prior indorser to prove manner of
satisfaction; Key v. Dent, 14 Md. 98, holding decision of court confirming
report of auditor, admissible in evidence to show amount due on an
account; •Parr v. State, 71 Md. 234, 17 Atl. 1021, holding decree of court
declaring release of guardian by ward, void, admissible to show fact in
action against sureties on bond; Newman v. Insurance Co., 20 Minn. 427,
afi&rming order admitting decree i'eforming mortgage to show right to
insurance money in action on policy; dissenting opinion in McCormick v.
Fitzmorris, 39 Mo. 38, majority holding sheriff's deed to be presumptive
evidence of judgment on which founded, and plaintiff in action of eject-
ment need not produce judgment and execution; Cheshire Bank v. Robin-
son, 2 N. H. 128, holding that decree of court confirming referee's report
may be pleaded in action for damages so settled by referee; Greenleaf v.
Railroad Co., 132 N. Y. 414, 30 N. E. 762, where decree of partition held
admissible to show title in action of ejectment; Railroad Equipment Co. v.
Blair, 145 N. Y. 611, 39 N. E. 964, holding decree affirming sale of prop-
erty admissible as evidence of title in action to recover same by receiver of
vendor; Buckingham v. Hanna, 2 Ohio St. 561, holding decree ordering
sale of land admissible as evidence of title in action of ejectment by third
party; McCoy v. Reed, 5 Watts, 302, holding that in action against sheriff
for official misconduct, it is prima facie a sufficient defense that his act
was done under judgment of court; Kobgler v. Huffman, 1 McCord (S. C.)^
498, holding judgment making title to land conveyed by agent to J>e con-
clusive in collateral action as to execution of power of attorney by original
owner; Baylor v. Dejamette, 13 Gratt. 163, holding decree for sale of land
admissible as evidence of title in action of ejectment. Cited approvin^^ly
in Samuel v. Hall, 9 B. Mon. 376, holding, however, that judgment againsr
assignee is not evidence of facts upon which it was based; Hoffman v.
Coster, 2 Whart. 473, holding that while deed is admissible as evidence
of title in action of ejectment, it cannot be impeached by privies; Carroll
v. Goldschmidt, 80 Fed. 522, admitting patent decree a link in chain of
title to patent.
Distinguished in Succession of Lampton, 35 La. Ann. 421, holding ex
parte order of court recogni^ng person as heir, not to be judgment, and
so not pleadable as res ad judicata; Council v. Galligher, 36 Neb. 755, 55
N. W. 231, holding decree remedying defect in acknowledgment of deed not
to be operative to impair rights of strangers; Tiemey v. Insurance Co.,
4 N. D. 573, 574, 62 N? W. 644, 645, holding decree of foreclosure inadmis-
sible in action on insurance policy for purpose of impeaching it ; dissenting
opinion in Masser v. Strickland, 17 Serg. & R. 360, 17 Am. Dec. 675,
majority holding judgment against constable for official misconduct to be
conclusive as against sureties; dissenting opinion in Kessler v. McConachy,
1 Rawle-, 446, majority holding judgment in favor of tenant in distress pro-
ceedings, admissible in suit for rent as evidence on issue, ''no rent in
arrear."
r*'
r\
891 BAUR V. GRATZ. 4 Wheat. 213-226
Deed more than thirty yean old ia admisaihle in evidence without proof
of ezecntion.
Approved in Cunningham v. Davis, 175 Mass. 220, 56 N. E. 4, admitting
mortgage over thirty years old without proof of execution when produced
by administrator of mortgagee; Coulson v. Walton, 9 Pet. 72, 9 L. Ed. 56,
ruling similarly as to bond for conveyance of land; Applegate v. Mining
Co., 117 U. S. 261, 263, 29 L. Ed. 898, 894, 6 Sup. Ct. 744, 745, holding that
where ancient deed forms part of papers in suit in court of record, the
record of such case is admissible in later suit to show antiquity of deed;
Walton V. Coulson, 1 McLean, 124, Fed. Cas. 17,132 (see 9 Pet. 72, supra) ;
McCleskey v. Leadbetter, 1 Ga. 558, 559, as to bill of sale for slaves;
Harlan v. Howard, 79 Ky. 376, holding, however, that credibility of evi-
dence contained in such deed is to be determined by jury; Havens v. Land
Co., 47 N. J. Eq. 378, 20 Atl. 501, as to deed of partition; Robinson v.
Craig, 1 Hill (S. C), 391, holding that where ancient deed reciting power
of attorney has been received in evidence without proof, power need not
be produced; Caruthers v. Eldridge, 12 Gratt. 685, holding such deed
admissible, idthough jwssession not held in accordance with it for entire
period.
What constitute "ancient deeds" in the United States, and when they
are admissible in evidence. Note, 9 Am. St. Rep. 303.
Necessity for calling subscribing witnesses to prove attested instru-
ments. Note, 35 L. B. A. 342.
When holder of Inchoate title convesrs land by deed, and afterward obtains
perfect title, his seisin comes at once to his grantee.
Cited in Johnson v. Parcels, 48 Mo. 565, holding that where land warrant
had issued to soldier, but patent was not issued until after his death,
patent 'ij^ould relate back to enlistment, and widow be entitled to dower;
Garner v. Johnson, Peck (Tenn.), 26, holding that after-acquired title of
former grantor inures to benefit of purchaser at execution sale.
Abandonment of highway by nonuser, or otherwise than by act of
authorities. Note, 26 L. B. A. 453.
Of two persons in possession of land at the same time, he who has better
title is deemed to have seisin.
Approved in John T. Moore Planting Co. v. Morgan's Louisiana etc.
S. S. Co., 126 La. 889, 53 South. 38, holding, where railroad acquired right
of way, with depot sites, through plantation, and went into possession,
but did not record title, and plantation as whole was later sold to person
acquiring in good faith, railroad's possession became restricted land in its
actual occupation and use; McClung v. Ross, 5 Wheat. 124, 6 L. Ed. 50,
holding that mere silent possession, unaccompanied by any act amounting
to ouster, will not disseize owner; 0. & G. Smelting etc. Co. v. Tabor, 13
Colo. 53, 16 Am. St. Bep. 194, 21 Pac. 929, holding that deed to land carries
right to immediate possession of land described, and parol evidence is
inadmissible to show agreement that possession should not pass until price
paid; Towle v. Ayer, 8 N. H. 59, holding that in order to give party right
to elect to consider himself disseized, alleged disseizor's acts must be such
4 Wheat. 213-225 NOTES ON U. S. REPORTS. 892
as law considers adverse to true owner; Culver v. Rhodes, 87 N. T. 364,
to the effect that possession to be jidverse must be open and notorious and
under claim of right; Peeler v. Norris, 4 Yerg. 344, holding possession
under grant, during pendency of caveat by party jja possession, is not
such possession as will form bar under statute of limitations; Fancher v.
De Montegre, 1 Head, 42, holding that possession of father cannot be
adverse to children in whom legal title is vested ; Kirk v. Smith, 9 Wheat.
288, 6 L. Ed. 92, Northrop v. Marquam, 16 Or. 191, 18 Pac. 459, and Horton
v. Crawford, 10 Tex. 388, all arguendo.
Actual entry nfion part, under color of tittle, gives conBtmctlTe possession
to whole tract to which title extends.
Approved in Empire State Idaho etc.- Co. v. Bunker Hill etc. Co., 121
Fed. 977, holding possession and ownership of surface of lode claim is
possession of lode to full extent of the extralateral right of owner; Dennis
V. Northern Pac. Ry. Co., 20 Wash. 331, 55 Pac. 213, arguendo ; Bradstreet
V. Huntingdon, 5 Pet. 440, 8 L. Ed. 184, as to possession under deed exe-
cuted by one of several tenants in common; Peyton v. Stith, 5 Pet. 493,
8 L. Ed. 203, giving similar effect to deed, although grantor did not claim
under title and only occupied part of whole tract granted ; Sicard v. Davis,
6 Pet. 140, 8 L. Ed. 348, as to possession under junior patent, there being
no occupancy under senior patent; Ellicott v. Pearl, 10 Pet. 443, 9 L. Ed.
488, holding that entry under deed gives possession to all unoccupied land
described; Clymer v. Dawkins, 3 How. 690, 11 L. Ed. 786, as to entry by
tenant in common under deed of partition; Deputron v. Young, 134 U. S.
255, 33 L. Ed. 930, 10 Sup. Ct. 545, holding tax deed, although void on its
face, to be sufficient color of title to support adverse })ossessipn to land
described; Barclay v. Plant, 50 Ala. 521, holding that where husband has
deeded land to wife, his seisin is referred to her title, and the land is not
subject to execution for his debts; Hicks v. Coleman, 25 Cal. 133, 85 Am.
Dec. 112, holding right thus acquired to be good as against party subse-
quently entering into possession of another part under mere color of title;
Unger v. Mooney, 63 Cal. 593, 49 Am. Bep. 105, ruling similarly as to
entry under deed from one tenant in common, others not being in. actual
possession; Kendrick v. Latham, 25 Fla. 837, 6 South. 875, as to entry
under sheriff's deed*; Wig^ns v. Halley, 11 Ind. 7, as to entry under tax
deed ; Cottle v. Sydnor, 10 Mo. 770, as to entry under junior title, holding
further that rule applies although occupant ignorant of extent of grant;
Whitehead v. Foley, 28 Tex. 283, 289, as to entry under government sur-
vey; Taylor v. Bumsides, 1 Gratt. 199, as to entry under junior patent;
Norris v. Haggin, 12 Sawy. 58, 28 Fed. 283, Owen v. Morton, 24 Cal. 377,
and Stewart v. Stewart, 83 Wis. 371, 35 Am. St. Rep. 71, 53 N. W. 688, all
arguendo.
Distinguished in Bale v. Tubbs, 23 Cal, 437, holding rule inapplicable
where person having no color of title beyond his possession makes convey*
ance in excess of it; Bellis v. Bellis, 122 Mass. 417, where adverse pos-
sessor held part of land covered by deed, under lease from l^al owner.
Possession of part as possession of the whole. Note, 125 Am. St. Bep.
303.
893 BARR v. GRATZ. 4 Wheat. 213-225
Where advene possession is not under color of title, disseisin is limited to
"bounds of actual occupancy.
Approved in Morris v. Wheat, 11 App. D. C. 219, holding, in order to
oust cotenants and claim title adversely, notice of adverse claim must be
brought home to cotenants; Clarke's Lessee v. Courtney, 5 Pet. 355, 8
Ii. Ed. 153, where junior patent not describing land by metes and bounds
held to extend only to land actually occupied; Trapnall v. Burton, 24 Ark.
393, holding further that such occupancy may be indicated by fencing;
Wilkins v. Pensacola Coal Co., 36 Fla. 59, 18 South. 26, holding disclaimer
of tenant ousts landlord to extent only of land held under lease; Goewey v.
Urig, 18 111. 241, holding that two years' possession of part without title
cannot be added to subsequent possession under color of title, so as to
bar l^^l title to whole; Bonne v. Powers, 3 Mart. (La.) (N. S.) 461,
holding deed not signed by vendor insufficient as basis for claim to whole
of tract described; Cresap v. Hutson, 9 Gill, 277, holding that such adverse
possession must be indicated by an inclosure; Hoye v. Swan, 5 Md. 253,
holding that exclusive possession without such inclosure will not bar legal
owner, although latter never had actual possession; McDonald v. Schneider,
27 Mo. 411, holding further that burden is upon such adverse occupant to
show extent of holding; St. Louis v. Gorman, 29 Mo. 603, 77 Am. Dec. 591,
where adverse elaim was to part of city common; Miller v. Shaw, 7 Serg.
& R. 137, 144,. as to entry under sheriff's deed, not describing property;
Hole V. Rittenhouse, 25 Pa. St. 493, where entry was under unauthorized
junior survey; Hughes v. Stevens, 36 Pa. St. 323, holding mere entry for
purpose of cutting timber not to be adverse possession ; Poyas v. Wilkins, 12
Rich. 429, holding in action on bond for purchase of land, that obligor can-
not defend by showing that possession of land was claimed by third person
under deed from obligee, when such deed did not in fact cover disputed
portion ; Ballard v. Pe^ry, 28 Tex. 367, where constructive possession under
deed held to be ousted to extent of actual adverse holding; Ralph v. Bay-
ley, 11 Vt. 523, holding that such possessio;i cannot be extended by con*
atruction beyond limits of actual occupancy for purpose of defeating prior
constructive })ossession; United States v. Arredondo, 6 Pet. 743, 8 L. Ed.
566, Mitchel v. United States, 9 Pet. 735, 9 L. Ed. 292, Boone v. Childs, 10
Pet. 224, 9 L. Ed. 405, Strother v. Lucas, 12 Pet. 456, 9 L. Ed. 1165 , Tush-
Ho-Yo-Hubby v. Barr, 45 Miss. 193; Cruger v. Daniel, McMull. Eq. 195,
and Harris v. Bledsoe, Peck (Tenn.), 246, all arguendo.
Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Note, 16 L. R. A. (N. S.) 1245.
Tenant cannot change character of his tenure by his own act.
Approved in Morris v. Wheat, 11 App. D. C. 217, holding during tenancy,
neither lessee nor his assigns may dispute title of lessor or his heirs.
Miscellaneous. Cited in Bumham v. Webster, 1 Wood. & M. 174, Fed.
Cas. 2179, as to conclusiveness of judgments; Warner v. Brinton, 29 Fed.
Cas. 235, but application doubtful; Wjrman v. Campbell, 6 Port. 237, 31
Am. Dec 686, to point that judgment of court having jurisdiction is not im-
4: Wheat. 22&-230 NOTES ON U. S. REPORTS. 894
peachable collaterally; Dear v. Brannon, 4 Bash (Ky.), 476^ and Harmony
v. Bingham; 12 N. Y. 115, 62 Am. Dec. 149, but not in point.
4 Wheat. 225-230, 4 K Ed. 556, ELIA80N v. HEN8HAW.
Offer imposes no obligation upon maker unless accepted according to its
terms.
Approved in Seymour v. Armstrong, 10 Kan. App. 12, 61 Pac. 675, and
Vermont Marble Co. v. Mead, 85 Vt. 32, 80 Atl. 857, both following rule;
McFarlane v. Wadhams, 165 Fed. 991, holding offer of guaranty not ac-
cepted; Lacy V. Thomas, 164 Fed. 627, holding, under facts, there was no
acceptance of contract; Lisman v. Milwaukee etc. Ry. Co., 161 Fed. 480,
applying rule to option to demand corporate stock in lieu of bonds, offer
being made thirteen yeitrs after offer of exchange expired ; Couch v. McCoy,
138 Fed. 703, offer to give option to purchase realty where written contract
embodying terms of option is clearly contemplated does not constitute bind-
ing contract till writing duly executed; Bowen v. Hart, 101 Fed. 381, con-
struing transaction and holding that offer was not accepted ; Porter v. Oos-
sell, 112 Ark. 384, 166 S. W. 535, holding, under offer to sell car of bulk
oats at forty-two cents provided buyer would accept city scale weights,
buyer's demand for affidavit attached to scale weights was not unqualified
acceptance ; D. S. Cage & Co. v. Black, 97 Ark. 618, 134 S. W. 944, holding,
under facts, offer to sell rice at five dollars and seventy-five cents "per
sack" was not accepted; Seymour v. Armstrong, 10 Kan. App. 12, 61 Pac
675, applying rule of principal case to sale of eggs; Cincinnati Equipment
Co. V. Big Muddy River Consol. Coal Co., 158 Ky. 253, 164 S. W. 797, holding
contract not accepted; New York Life Ins. Co. v. Levy's Admr., 122 Ky.
464, 466, 5 L. R. A. (N. S.) 739, 92 S. W. 327, 328, holding, under facts,
there was no acceptance by company of proposal to insure life ; Metropolitan
Coal Co. V. Bontell, 185 Mass. 395, 70 N. E. 422, applying rule to offer to
charter vessels; Batavia v. St. Louis Southwestern Ry. Co., 126 Mo. App.
15, 103 S. W. 141, holding letters sent between owner, whose baggage was
lost, and railway's general baggage agent did not constitute contract of
settlement; Greene v. Messick Grocery Co., 153 N. C. 412, 69 S. E. 413, hold-
ing offer not accepted; Ross v. Insurance Co., 124 N. C. 396, 32 S. E. 734,
holding retention of application for insurance and note for first premium
does not constitute an acceptance by company; Ackerman v. Maddux, 26
N. D. 57, 143 N. W. 149, applying rule to request in offer to ''Let me know
by return mail"; Hilgar v. Miller, 42 Or. 555, 72 Pac. 320, refusing to ad-
mit parol evidence of preliminary conversations which tended to show non-
meeting of minds of parties to escrow ; Henry v. Black, 213 Pa. 627, 63 Atl.
253, applying principle to offer to purchase land by holder of option ; HoUi-
day V. Pegram, 94 S. C. 296, 77 S. E. 1015, holding, appeal in action for rent
will be dismissed with leave to amend so as to plead cause on. quantum
meruit, where no enforceable contract existed between parties; Washington
V. Mining etc. Co., 28 Tex. Civ. 441, 67 S. W. 465, applying rule to purchase
of mining property; Carr v. Duval, 14 Pet. 82, 83, 10 L. Ed. 364, denying
decree for specific performance, where acceptance of offer to sell land not
definite; Taylor v. Insurance Co., 9 How. 402, 13 L. Ed. 192, asserting con-
896 ELIASON v. HENSHAW. 4 Wheat. 225^230
verse of rule in holding offer to. insure binding when acceptance deposited
in post; Tilley v. County of Cook, 103 U. S. 161, 26 L. Ed. 377, denying
right of plaintiff to maintain assumpsit in absence of proof that services
-were performed at instance of defendant ; Minneapolis etc. Ry. Co. v. Colum-
bus RolHng MUls, 119 U. S. 161, 30 L. Ed. 377, 7 Sup. Ct. 169, holding offer
to sell goods to be rejected by reply varying its terms ; Compania Bilbaina v.
Spanish-American etc. Co., 146 U. S. 497, 86 L. Ed. 1058, 13 Sup. Ct. 148,
holding charter-party void where certain clauses not in accord with offer;
Snow V. Miles, 3 Cliff. 613, Fed. Cas. 13,146, holding offer to deliver goods
"sooner or later" not rendered binding by acceptance stipulating date*,
In re Insurance Co., 22 Fed. Ill, holding insurance contract not complete
until accepted by insured, hence contract governed by law of place where
accepted; Paine v. Pacific Mut. Ins. Co., 61 Fed. 693, 10 U. S. App. 256,
holding death of applicant for insurance before acceptance revokes offer,
although application approved by company physician; Starr v.-Galgate
Ship Co., 68 Fed. 241, 29 U. S. App. 599, holding offer of charter revoked
by acceptance modifying terms; Equitable Life Assur. Soc. v. McElroy,
83 Fed. 642, 49 U. S. App. 566, holding acceptance of insurance policy on
condition that beneficiaries be changed, constitutes new offer, and is not
binding on company until aiccepted; Falls v. Gaither, 9 Port. 613, holding
accordingly that offer to sell property may be withdrawn before acceptance,
although notice of such withdrawal not received until after acceptance;
Glover v. Robbins, 49 Ala. 221, 20 Am. Eep. 273, holding alteration of note
by payee and principal discharges surety from liability; Samuel v. Cravens,
10 Ark. 393, holding that where debtor discharged in insolvency acknowl-
edges debt and offers to pay when able, institution of suit by creditor is not
conclusive evidence of acceptance of offer; Yore v. Bankers' etc. Assn., 88
Cal. 615, 26 Pac. 515, holding that policy varying from application is not
binding upon insurer until accepted by insured ; Gordon v. Darnell, 5 Colo
305, holding that entry upon land cannot be considered as selection to pur-
chase, under bond to convey upon payment of price; Ocean Ins.. Co. v. Car-
rington, 3 Conn. 362, denying right of company to recover on premium note
where description in policy of property insured did not accord with appli-
cation; Averill v. Hedge, 12 Conn. 435, holding that offer to sell goods is
revoked by unreasonable delay in accepting; HoUingsworth v. Insurance
Co., 45 Ga. 297, 12 Am. Rep. 581, holding that insurance company reserving
right to cancel policies, must tender unearned premium to assured before it
can be relieved of liability; Esmay v. Gorton, 18 111. 487, refusing to decree
specific performance of contract to sell lands where tender of payment not
made as stipulated in offer; Gradle v. Warner, 140 111. 133, 29 N. E. 1120,
holding provision in lease for renewal to be accepted by tender by lessee
at end of term of amount stipulated ; Moore v. Pierson, 6 Iowa, 293, 71 Am.
Dec. 414, holding offer binding when acceptance deposited in post, and de-
creeing specific performance of contract to convey land; Hutcheson v.
Blakeman, 3 Met. (Ky.) 81, 82, holding offer to sell slaves revoked by ac-
ceptance qualifying terms; dissenting opinion in Canal Co. v. Railroad Co.,
4 Gill & J. 190, 196, majority denying right of State to revoke grant to cor-
poration ; Home v. Niver, 168 Mass. 5, 46 N. E. 393, holding that where offer
4 Wheat. 230-235 NOTES ON U. S. REPORTS. 896
to sell contemplates acceptance by telegraph, reply by mail does not bind;
Widner v. Telegraph Co., 51 Mich. 297, holding acceptance of receipt by-
debtor binds him as to its terms ; De Jonge v. Hunt, 103 Mich. 97, 61 N. W.
342, holding offer to sell land to be revoked by acceptance changing place
of payment; Lanz v. McLaughlin, 14 Minn. 75, denying decree of specific
performance, where otfer to convey land not accept^^d in writing; Tiangel-
lier V. Shaefer, 36 Minn. 363, 31 N. W. 691, denying decree of specific per-
formance where acceptance of offer to convey land changed place for
delivery of deed; Schields v. Horbach, 30 Neb. 540, 46 N. W. 630, refusing
decree where acceptance not made within time specified; Potts v. White-
head, 23 N. J. Eq. 514, holding offer to sell land revoked by acceptance
changing mode of paj^ment; Cutting v. Dana, 25 N. J. Eq. 274, holding tender
of price to be sufficient acceptance of offer to assign claims; Mactier v.
Frith, 6 Wend. 119, 21 Am. Dec. 271, holding further that when offer to
?ell goods is not limited as to time, it is presumed to remain open until
expressly revoked; Cammeyer v. Churches, 2 Sand. Ch. 244, holding offer
to sell land revoked by acceptance changing mode of payment; Barrow
etc. Co. V. Railway Co., 134 N. Y. 24, 31 N. E. 264, holding offer to trans-
port immigrants revoked by change in stipulated number; Sun Pub. Co.
V. Minnesota etc. Co., 22 Or. 59, 29 Pac. 8, holding that offer for sale of
goods is to be construed as open only for reasonable time; Patton v.
Rucker, 29 Tex. 408, denying decree of specific performance where ac-
ceptance of offer to convey land not in writing; Haarstick v. Fox, 9 Utah,
123, 33 Pac. 254, holding that where acceptance is unqualified, offer is
not affected by death of person making it; Weaver v. Burr, 31 W. Va.
744, 751, 8 S. E..747, 751, holding that in proceedings for specific perform-
ance, burden of proof is on person asserting acceptance to show that it was
made in time; Atlee v. Bartholomew, 69 Wis. 50, 6 Am. St. Rep. 108, 33
N. W. 113, holding acceptance made after time limited not good unless
assented to by i)erson making offer; Cheney v. Turnpike line, 69 Md. 565,
as instance where court extracted contract from correspondence of parties.
Distinguished in Postal Telegraph Cable Co. v. Louisville Cotton Oil Co.,
126 Ky. 852, 122 S. W. 855, holding, in offer to buy ten tanks of bleachablo
prime summer oil, addition of '' Memphis Exchange rules and arbitration"
did not impose new condition.
Continuance of offer for reasonable time or until notice of recall. Note,
6 E. B. 0. 90.
Effect of introducing new terms in acceptance of offer. Note, 6 £. R. O.
154.
Miscellaneous. Cited in Downs v. Downs, 2 How. (Miss.) 928, but not in
point.
4 Wlieat. 230-235, 4 K Ed. 558, SOMESVIIJLf ▼. HAMILTON.
Query, whether recovery by tliird person against grantee was prima facie
evidence of paramoimt title in such tliird person, In action on covenant by
grantee against grantor.
f
897 BAlJK OF COLUMBIA v. OKELY. 4 Wheat. 235-246
Cited in Salle v. Light, 4 Ala. 707, S9 Am. Dec. S19, holding jndgn?ient
against vendee of personal property not so admissible where vendor had no
notice of original suit ; Rhode v. Green, 26 Ind. 88, holding such judgment
inadmissible in absence of proof of notice to vendor; so also in Fields v.
Hunter, 8 Mo. 132, to same effect. Referred to in Randolph v. Meeks,
Mart. & Y. 63, as having left question undecided ; Knapp v. Marlboro, 34
Vt. 241, holding that where covenantor is vouched to defend in action of
ejectment by third person, judgment in such action is conclusive in a subse-
quent action on covenants.
Advene possession for statutory period raises conclusive bar against suit
by any other claimant, unless he was within exceptions in statute.
Cited in Gross v. Disney, 95 Tenn. 597, 32 S. W. 633, holding that disabil-
ity of coverture must be specially averred in ejectment against adverse
holder.
Miscellaneous. Cited also in Daniels v. Railroad Co., 3 Wall. 255, 18
L. Ed. 225, as instance where Supreme Court took jurisdiction of certificate
of division presenting points of law embraced in speeial verdict.
4 Wheat. 235-246, 4 L. Ed. 669, BANS OF 0OLT7MBIA y. OKELY.
Bight to Jsry trial may be waived.
Approved in Belt v. United States, 4 App. D. C. 31, holding accused may
waive jury in criminal case, in pursuance of statute authorizing such
waiver; Roeh v. Business Men's Protective Assn., 164 Iowa, 207, Ann. Gas.
19150, 813, 51 L. R. A. (N. S.) 221, 145 N. W. 482, holding valid provision in
mutual benefit company's ce'rtificate denying liability for death caused by
accidental discharge of firearm unless accidental character thereof is es>
tablished by one witness other than insured; Ex Parte Hudson, 3 OkL Cr.
404, 107 Pac' 737, holding defendant seeking to disqualify trial judge must
follow procedure prescribed in section 5, Act March 22, 1909 ; Gottschall v.
Campbell, 234 Pa. 361, 83 Atl. 291, holding valid Act May 5, 1911, section
8, requiring payment of jury fee in advance ; dissenting opinion in Jennings
V. State, 134 Wis. 315, 14 L. R. A. (N. S.) 862, 114 N. W. 494, majority hold-
ing, where, on second day of trial, one juror could not be found, and at
accused's desire case tried with remaining eleven, verdict would be set aside.
Distinguished in Freeman v. United States, 227 Fed. 747, holding constitu-
tional right of ''trial by jury" in Federal courts means trial by twelve
men.
Intention to waive Jury may be presumed £rom conduct of parties.
Cited in Kearney v. Case, 12 Wall. 281, 20 L. Ed. 396, holding that parties
will be deemed to have waived jury trial where they were in court and made
no demand; United States v. Rathbone, 2 Paind, 579, Fed. Cas. 16,121, hold-
ing, however, that acts amounting to waiver must clearly appear; also in
Mehlin v. Ice, 56 Fed. 20, 12 U. S. App. 305, applying principle in holding
appearance waives objection to jurisdiction of court; Russell v. Elliott, 2
Cal. 247, holding jury trial waived by filing of undertaking to obtain in-
junction under statute; Flint etc. Co. v. Foster, 5 Ga. 213, 48 Am. Dec. 2659
1—67
\
4 Wheat. 235-246 NOTES ON U. S. REPORTS. 898
holding that where party has failed to demand jury trial he is estopped
from saying it has heen denied him ; Commonwealth v. Dailey, 12 Gush. 83,
refusing new trial on g^und that verdict rendered by only eleven jurors,
where defendant consented to withdrawal of one ; Lewis v. Garrett, 5 How.
(Miss.) 456, 457, holding jury trial waived by voluntary submission of dis-
pute to arbitrators ; Hapton v. Swan, 50 Miss. 550, holding that where stat-
ute provides that upon motion for summary process court may allow jury
trial, failure to demand it will be deemed waiver.
In what cases legislature may dispense with trial by jury. Note, 48
Am. Dec. 192.
Act giving corporation summary process In nature of attachment against
debtors is not void as regards persons who have submitted themselves to Ita
operation.
Approved in Ogden v. Saunders, 12 Wheat. 298, 6 L. Ed. 635, holding
contracts executed subsequent to passage of State insolvent law to be made
with reference to such law; Bowen v. Blount, 48 Ala. 674, holding that stat-
ute cannot subject married woman's property to liability upon debts con-
tracted while such property was exempt; Cairo etc. Ry. Co. v. Hecht, 29
Ark. 663, where provisions of charter regfulating service of process on cor-
poration held to be repealed by general enactment prescribing manner of
service in such cases; Blanchard v. Raines, 20 Fla. 477, 479, holding valid
an act providing for summary proceeding by warrant of distress, whero
act provides for jury trial upon replevy of property by tenant; Commis-
sioners V. Morrison, 22 Minn. 180, sustaining validity of act den3ring jury
trial in proceedings to recover taxes wrongfuHy collected, except on issue
that tax had been paid or that property was exempt; Caldjvell v. Wilson,
121 N. C. 456, 28 S. E. 557, holding right to jury trial waived by acceptance
of office under law providing for removal at discretion of Governor; New
York Life Ins. Co. v. Best, 23 Ohio St. 112, holding that where foreign
corporation has waived right to remove cause to Federal courts under law
regulating admission of such corporations, it is estopped from denying
validity of law; Hays v. Bank, Mart. & Y. 182, holding person in default
on note given to bank estopped from denying constitutionality of clause in
charter providing for summary process; Pratt v. Donovan, 10 Wis. 383,
holding valid a law providing that when a judgment is obtained against a
party in replevin it may be entered also as against the surety on his bond ;
Morse v. Insurance Co., 30 Wis. 502, 504, 11 Am. Rep. 584, 586, holding
foreign corporation may waive right to remove causes to Federal courts in
consideration of its admission to State (but see Insurance Co. v. Morse, 20
Wall. 457, 22 L. Ed. 370) ; Lewis v. American Savings etc. Assn., 98 Wis. 227,
73 N. W. 800, holding foreign corporation may waive right to object that
law impairs obligation of contracts, if they acquiesced in it as condition
precedent to doing business in State ; Bank of Columbia v. Sweeney, 2 Cr.
C. C. 706, Fed. Cas. 881, holding, however, that where execution returned
unsatisfied, if defendant disputes debt, court will allow issue to be made to
permit defendant to plead statute of limitations ; Williams v. State, 65 Ark*
174, 46 S. W. 191, arguendo.
899 BANK OF COLUMBIA V. OKELY. 4 Wheat. 235-246
Distingaished in dissenting opinion in Ogden v. Saunders, 12 Wheat. 342,
6 L. Ed. 650, majority holding State insolvent law operative as to subse-
quent contracts; Insurance Co. v. Morse, 20 Wall. 457, 22 L. Ed. 370
(reprinted in IS Am. Rep. 300), holding that submission to law abridging
jurisdiction of United States courts does not estop party from den3dng
constitutionality of such law.
w
"Iaw of the land" is that which secures individual £rom arbitrary exer-^
cise of powers of government, unrestrained by established principles of private
rights and distributive Justice.
Approved in Twining v. State of New Jersey, 211 U. S. 101, 58 L. Ed.
107, 29 Sup. Ct. 14, holding exemption from self-incrimination not safe-
guarded as against State action by Fourteenth Amendment to United
States Constitution; Tracy v. Ginzberg, 205 U. S. 178, 51 L. Ed. 760, 27
Sup. Ct. 461, holding valid decision of State court denying ownership of
land; Capital Traction Co. v. Hof, 174 U. S. 20, 21, ^3, 43 L. Ed. 830, 19
Sup. Ct. 588, holding act of February 19, 1895, enlarging jurisdiction of
justices of the peace in District of Columbia does not infringe right of
trial by jury; Eroschel v. Munkers, 179 Fed. 963, holding, where petitioner
was arrested for violating liquor ordinan'ce and failed to appear in time,
habeas e<^rpus may not issue from Federal court; People v. Strassheim,
242 III. 366, 90 N. E. 120, upholding validity of Parole Act, Laws 1899,
p. 143 ; City of Belleville v. St. Clair County Turnpike Co., 234 111. 435,
17 L. E. A. (N. S.) 1071, 84 N. fi. 1052, holding, where city annexed terri-
tory, and took possession of toll road, such taking was invalid, notwith-
^ standing road act of 1874, providing that no toll should be demanded within
incorporated city ; Brewster v. People, 183 111. 151, 55 N. E. 642, upholding
waiver of jury in misdemeanor cases; McICinster v. Sager, 163 Ind. 676,
106 Am. St. Rep. 268, 68 L. B. A. 278, 72 N. E. 856, holding void Acts 1903,
p. 276, c. 153, making sales by merchant of stock, save in due course of
trade, void as to creditors whose claims arise from sale of i^ome of stock
except under certain conditions ; State v. Height, 117 Iowa, 655, 94 Am. St.
Eep. 326, 59 L. R. A. 437, 91 N. W. 936, holding compulsory physical ex-
amination of defendant in prosecution for rape is illegal ; State v. Hammer,
116 Iowa, 288, 89 N. W. 1085, refusing to reverse where by consent, judge
» retired from courtroom during argument to prepare his instructions;
Dorrance v. Dorrance, 242 Mo. 651, 148 S. W. 100, holding invalid divorce
judgment which disposed of property, where based on substituted service,
which was itself based on willfully false testimony; State v. Missouri Tie
etc. Co., 181 Mo. 559, 103 Am. St. Rep. 614, 65 L. R. A. 588, 80 S. W. 941,
holding void. Missouri statute making it crime to pay wages with orders or
other evidence of investment unless same is negotiable; Hunt v. Searcy,
167 Mo. 181, 67 S. W. 213, holding insanity inquisition statutes void as
not providing for notice ; Hinds v. Wilcox, 22 Mont. 11, 55 Pac. 358, hold-
ing real estate devised by testator to his widow was not subject to inheri-
tance tax laws (Laws Mont., 5th Sess., p. 83, § 1) ; State v. Taylor, 27 N. D.
90, 145 N. W. 430, holding invalid chapter 194, Laws 1913, establishing
state bonding department in office of commissioner of insurance; In re
4 Wheat. 235-246 NOTES ON U. S. REPORTS. 900
McNaught, 1 Okl. Cr. 639, 99 Pac. 245, holding indictment by grand jury
not required in prosecution by State for murder committed after state-
hood ; Aldredge v. School District No. 16, 10 Okl. 697, 65 Pac. 96, holding
condemnation of private property for school uses void where no notice ot'
condemnation given owner; State v. Del Bio Turnpike Co., 131 Tenn. 604,
175 S. W. 1144, holding invalid Shannon's Code, § 1748 et seq.y providing
forfeiture of right to take toll for failure to keep road in good repair;
Harbison v. Knoxville Iron Co., 103 Tenn. 433, 76 Am. St. Eep. 689, 56
li. R. A. 816, 53 S. W. 958, upholding Acts 1899, c. 11, §§ 1, 2, requiring
corporations to redeem in cash evidences of indebtedness used to pay
employees ; Chambers Co. Judge v. Gilbert, 17 Tex. Civ. 109, 42 S. W. 631,
upholding Rev. Stats. 1895, tit. 102, c. 2, relative to killing and appraisal
of glandered animals; State v. Stimpson, 78 Vt. 134, 1 L. B. A. (N. S.)
1153, 62 Atl. 17, upholding act providing for prosecution by information
of all crimes except those punishable by death or life imprisonment;
Pinney v. Providence Loan & Investment Co., 106 Wis. 401, 50 L. R. A.
577, 82 N. W. 310, holding void Rev. Stats., § 1775b, authorizing service on
private corporation by leaving copy of such pirocess with register of deeds ;
dissenting opinion in Taylor and Marshall v. Beckham (No. 1), 178 U. S.
592, 44 L. Ed. 1206, 20 Sup. Ct. 1012, majority holding that a State office
is not property; dissenting opinion in Crane v. Waldron, 133 Mich. 88, 94
N. W. 598, majority upholding Act 99 of 1897, relating to evidence in suits
in aid of execution; United States v. Cruikshank, 92 U. S. 554, 23 L. Ed.
592, holding void, indictment not describing offense, which would warrant
conviction; dissenting opinion in Beckwith v. Bean, 98 U. S. 295, 25 L. Ed.
135, majority holding evidence of facts upon which unwarranted arrest
made, to be admissible in mitigation of damages for false imprisonment;
Hurtado v. California, 110 U. S. 527, 28 L. Ed. 236^4 Sup. Ct. 116, holding
indictment by grand jury not necessary for prosecution by State for
murder; Caldwell v. Texas, 137 U. S. 698, 84 L. Ed. 818, 11 Sup. Ct. 226,
liolding statute prescribing form of indictment not void as repugnant to
Fourteenth Amendment; Scott v. McNeal, 154 U. S. 45, 88 L. Ed. 901, 14
Sup. Ct. 1112, holding void, judgment of probate court ordering sale of
property of living person who had no notice of proceedings ; Lavin v. Bank,
]8 Blatchf. 20, 1 Fed. 658, holding void, statute providing that three years*
unexplained absence from State rendered absentee's property subject to
sale by probate court; In re Ziebold, 23 Fed. 792, granting habeas corpus
for release of person imprisoned under State law, for refusing to testify
before county attorney; Hoover v. McChesney, 81 Fed. 481, denying right
of postmaster-general to prohibit use of mails by person known to have
been guilty of sending prohibited matter; Nashville etc. By. Co. v. Taylor,
86 Fed. 184, holding void tax levy discriminating between corporations;
Houston V. Deloach, 43 Ala. 370, 94 Am. Dec. 691, holding void, act em-
powering guardians to invest money of wards in Confederate currency and
bonds; Ex parte Reardon, 9 Ark. 452, holding valid a statute giving for-
feited delivery bonds the force and effect of judgments upon which execu*
tion may issue; Kalloch v. Superior Court, 56 Cal. 241, dismissing in-
formation where prisoner committed upon oral testimony of witnesses
901 BANK OF COLUMBIA v. OKELY. ' 4 Wheat. 235-246
/
which had not heen reduced to writing; In re Lowrie, 8 Colo. 513, 54 Am.
Bep. 669, 9 Pac. 498, holding unconstitutional a statute prohibiting indict-
ments by grand jury, and providing for prosecution on information only;
Denver etc. Ry. Co. v. Outcalt, 2 Colo. App. 400, 31 Pac. 178, holding void
statute fixing upon railroad companies an absolute liability for all stock'
killed or ihjured, and providing for recovery in double the value of such
animals; Wilson v. Railroad Co., 5 Del. Ch. 544, refusing injunction to
restrain State from taking property by virtue of right of eminent domain;
Ritchie v. People, 155 111. 108, 46 Am. St. Rep. 323, 40 N. E.' 457, holding
void a statute prohibiting women from working more tfi^ eight hours a
day; Mason v. Messenger, 17 Iowa, 267, holding constitutional an act pro-
viding for partition of lands upon service of notice by publication ; Foule
V. Mann, 53 Iowa, 43, 3 N. W. 815, holding void an act prohibiting owner
of property wrongfully levied upon from maintaining action for recovery
of property taken, and confining him to action upon indemnity bond;
Louisville v. Cochran, 82 Ky. 22, denying validity of act limiting defenses
in actions to recover unpaid taxes due city; In re Ross, 38 La. Ann. 524,
refusing habeas corpus for release of person held under statute relative to
confinement of insane persons; Opinion of Justices, 58 Me. 595, to the
effect that taxation for purpose of subsidizing corporations is void; Allen
v. Jay, 60 Me. 138, 11 Am. Bep. 196, granting injunction to restrain town
from making loan to corporation; Eames v. Savage, 77 Me. 221, 52 Am.
Rep. 756, holding valid a statute authorizing execution upon judgments
against towns to be levied against property of inhabitants; dissenting
opinion in Parsons v. Russell, 11 Mich. 132, majority holding void act pro-
viding that vessel may be seized and sold upon mere assertion of demand
against her; Weimer v. Bunbury, 30 Mich. 214, holding valid a law pro-
viding for summary process against delinquent tax collectors; State v.
Board of Medical Examiners, 34 Minn. 389, 26 N. W. 124, sustaining power
of State to authorize board of examiners to refuse licenses to physicians
guilty oi "unprofessional conduct" ; Griffin v. Mixon, 38 Miss. 444, denying
validity of act providing for absolute forfeiture of land to State on failure
of owner to pay taxes due thereon; State v. Loomis, 115 Mo. 313, 22 S. W.
351, holding act prohibiting mining corporations from issuing checks to
laborers in payment of wages to be "class legislation" and void; Hinds v.
Wilcox, 55 Pac. 358, denying retroactive operation of inheritance tax law ;
Atchison etc. R. R. Co. v. Baty, 6 Neb. 43, 29 Am. Rep. 359, holding void
act giving damages in double the value to owner of stock killed upon right
of way; Low v. Rees etc. Co., 41 Neb. 144, 43 Am. St. Bep. 682, 59 N. W.
367, denying constitutionality of "eight hour law"; Addoms v. Marx, 50
N. J. L. 256, 12 Atl. 911, holding statute authorizing suit against husband
on debt arising from contract of wife, void in its application to antecedent
marriages ; State v. Staten, 6 Cold. 245, denying validity of act empowering
Governor to declare r^stration of electors void ; White's Creek etc. Co. v.
Marshall, 2 Baxt. 125, granting injunction to restrain county commissioners
from opening turnpike road to public ; McFadden v. Longham, 58 Tex. 585,
declaring void a statute authorizing ex parte proceedings to collect rent
due from State lands; Chambers v. Gilbert, 42 S. W. 631, holding valid a
4 Wheat. 246-255 * NOTES ON U. S. REPORTS.. 902
law providing for summary appraisal and destruction of horses affected
with glanders; Jenkins v. Ballantyne, 8 Utah, 249, 30 Pac. 761,' providing
for destruction of impounded dogs; Peerce v. KitzmiUer, 19 W. Va. 578,
holding judgment recovered to be property, and act authorizing setting it
aside upon affidavits, void; State v. Newman, 96 Wis. 273, 71 N. W. 443,
holding that person arrested upon warrant not naming him, and making
no direct charge against him, cannot be held under such warrant alone,
pending adjournment of cause for trial.
Distinguished in Speer v. Mayor, 85 Ga. 67, 11 S. E. 808,, holding valid
an afii providing for summary process to collect assessments for street
improvements, where act providing for hearing in case of dispute; Jenkins
V. Ballantyne, 8 Utah, 249, 30 Pac. 761, holding valid a law providing for
impounding and killing of dogs found at lai^e contrary to license law.
Law of the land. Note, 24 Am. Dec. 539.
Law changing method of administering remedy provided In corporate
charter Is not void as Impairing such charter.
Cited in United States v. Railroad Co., 98 U. S. 605, 25 L. Ed. 161, Jiold-
ing valid a statute providing specific mode of procedure against corpora-
tion to replace common-law mode; Ex parte North-East etc. Ry. Co., 37
Ala. 680, holding act providing for stay of executions, applicable to sum-
mary proceedings granted in corporate charter; Carey v. Giles, 9 Ga. 258,
holding valid an act providing for appointment of receiver to take charge
of affairs of bank, and conduct its suits; Howard v. Insurance Co., 13
B. Hon. 285, 286, holding valid an act changing jurisdiction for enforce-
ment of contracts against corporation; Ex parte Burton, 3 Gill, 9, sus-
taining constitutionality of act requiring mortgages held by banks to be
stamped; Commercial Bank v. Rodney, 4 Smedes & M. 495, 500, holding
valid an act providing for filing information against banks for violation
of charter; Templeton v. Kraner, 24 Ohio St. 563, as to act changing pro-
cedure in actions upon covenants; In re Penniman, 11 R. I. 339, 347, 350,
sustaining validity of act repealing clause in corporate charter providing
that corporation may have execution against body of debtor; dissenting
opinion in Bank v. McVeigh, 20 Gratt. 481, majority holding void a law
authorizing payment of debts in Confederate currency; State v. Dews,
Charlt. (Ga.) 420, and McLaren v. Pennington, 1 Paige Ch. 108, both
arguendo.
Constitutionality of statutes regulating the time and method of pay-
ment of wages. Note, 122 Am. St. Bep. 905.
4 Wheat. 246-256, 4 K Ed. 562, UNITED STATES ▼. BIOS.
Conquest and occupation of portion of United States territory make such
portion foreign coimtry, so far as respects revenue laws.
Approved in MacLeod v. United States, 229 U. S. 430, 67 L. Ed. 1266,
33 Sup. Ct. 955, holding authority of military commander of Manila, dur-
ing military occupation, not to extend to collection of duties on cargo im-
ported by citizens of Manila from foreign port to island of Cebn, then
903 UNITED STATES v. RICE. 4 Wheat. 246-255
occupied by de facto iimpigent government ; Pearcy v. Stranahan, 205 U. S.
272, 61 L. Ed. 798, 27 Sup. Ct. 545, holding Isle of Pines to be "foreign
country" within meaning ^f Dingley tariff act of July 24, 1897; Lincoln
V. United States, 197 U. S. 428, 49 L. Ed. 818, 25 Sup. Ct. 455, duties on
imports from United States into Manila not justified because of insurrec-
tion after Spanish treaty under order of President issued during war;
Downes v. Bidwell, 182 U. ft. 303, 45 L. Ed. 1113, 21 Sup. Ct. 793, upholding
Porto Rico tariff, provided by Foraker act; De Lima v. Bidwell, 182 U. S.
181, 184, 45 L. Ed. 1050, 1051, 21 Sup. Ct. 747, holding on ratification of Span-
ish treaty of 1899 Porto Eico ceased to be "foreign country" within mean-
ing of tariff laws ; Thorington v. Smith, 8 Wall. 10, 19 L. Ed. 863, applying
principle in holding contract for pa3anent of Confederate notes, made
between residents of Confederate States, enforceable in United States
courts; The Grapeshot, 9 Wall. 133, 19 L. Ed. 653, holding that Congress
had authority to establish courts in Mexican territory in temporary occu-
pation of United States, and, upon withdrawal, to transfer cases pending
to Federal courts ; United States v. Huckabee, 16 Wall. 434, 21 L. Ed. 464^
holding that land sold to Confederate States and captured by U'nited
States, became permanent property of latter at close of war and could
be sold without further proceeding^; Coleman v. Tennessee, 97 U. S. 536,
24 L. Ed. 1129, sustaining validity of proceedings of military courts es-
tablished in insurrectionary States; Underbill v. Hernandez, 168 U. S.
253, 42 L. Ed. 457, 18 Sup. Ct. 84, applying principle in refusing to enter-
tain suit by American cHizen against military officer for acts done while
such officer was leader of fevolutionary government, later recognized by
United States; The Hiawatha, Blatchf. Pr. 11, Fed. Cas. 6451, holding
that during a state of actual war, the President could consider the inhab-
itants of the insurrectionary States as public enemies and proclaim a block-
ade of their ports; The Parkhill, 18 Fed. Cas. 1188, sustaining validity
of proceedings in United States courts established in rebel territory; so
also in United States v. Reiter, 27 Fed. Cas. 773, 779; dissenting opinion
in Miller v. Gould, 38 Ga. 477, concurring with majority upon point that
Confederate currency constituted good consideration for transactions be-
tween adherents of that government; Snodgrass v. Adams, 26 La. Ann.
236, denying right of owner to recover goods seized and sold during rebell-
ion by Confederate revenue officer; Lay v. O'Neil, 29 La. Ann. 727, hold-
ing valid acts of executor authorized by laws of de facto Confederate
government; Sharkey v. Bankston, 30 La. Ann. (pt. 2) 893, holding that judg-
ment rendered against a party in suit for recovery of land in Confederate
court, may be pleaded as res adjudicata in subsequent action by heirs;
Scott v. Billgeriy, 40 Miss. 133, sustaining power of President to establish
provisional government iind courts in conquered territory: Hill v. Boy-
land, 40 Miss. 630, holding valid decisions of courts of Confederate States
not in conflict with United States laws; Hubbard v. Express Co., 10 R. I.
253, 254, denying right of shipper to recover goods seized and sold by
revenue officers of Confederate States; Rutledge v. Fogg, 3 Cold. 560,
91 Am. Dec. 303, sustaining power of military Governor to collect taxes
for municipal purposes; Hefferman v. Porter, 6 Cold. 396, 98 Am. Dec.
4 Wheat. 24&-265 NOTES ON U. S. REPORTS. 904
462, holding act of military Governor in changing proceeding^ in municipal
courts to be valid exercise of power; Dillard v. Alexander, 9 Heisk. 725,
holding valid, contracts executed under authority of Confederate govern-
ment; Trevino v. Fernandez, 13 Tex. 663, holding valid acts done under
authority of Mexican government while part of Texas territory was de
facto under its control, although such acts were done subsequent to decla-
ration of boundary by Republic of Texas; Lewis v. Hearne, 34 Tex. 384,
holding judgment of court of insurrectionary State valid although not
stamped as required by the United States revenue laws; Grant^v. Cham-
bers, 34 Tex. 585, 587, and Daniel v.- Hutcheson, 86 Tex. 62, 22 S. W. 937,
sustaining validity of judgments rendered by military courts under "Recon-
struction Acts"; Billgerry v. Branch, 19 Gratt. 408, 100 Am. Dec 687,
holding void contract made between citizens of Viiginia and citizen of
New Orleans, while latter place in possession of United States forces;
United States v. Wong Kim Ark, 169 U. S. 683, 42 L. Ed. 903, 18 Sup. Ct,
470, United States v. Cement, 27 Fed. Cas. 294, Hawkins v. Filkins, 24
Ark. 306, and Pennywit v. Foote, 27 Ohio St. 623, 22 Am. Rep. 855, all
arguendo.
Distinguished in dissenting opinion in De Lima y. Bidwell, 182 U. S. 202,
203, 205, 45 L. Ed. 1058, 21 Sup. Ct. 755, majority holding that on ratifica-
tion of Spanish treaty of 1899, Porto Rico ceased to be "foreign country"
within tariff laws; Hanauer v. Woodruff, 15 Wall. 446, 21 L. Ed. 227,
denying validity of Confederate bonds as consideration for promissory
note, although note executed in insurrectionary State; dissentitg opinion
in Dow V. Johnson, 100 U. S. 183, 25 L. Ed!" 641, majority holding that
military officer, serving in enemy's country, is not liable to courts of that
country for injuries resulting from his military acts; United States v.
Stark, 27 Fed. Cas. 1295, holding that mere possession of territory by
insurrectionary States did not suspend United States revenue laws; Hill
V. Erwin, 44 Ala. 667, holding that de facto character of Confederate
government, did not render legal its issue of currency so as to make such
currency good consideration for a deed ; Yost v. Stout, 4 Cold. 210, holding
order of Confederate officer to ^be no protection to inferior officer com-
mitting trespass.
Subsequent evacuation of conquered territory and resumption of authority
by United States, cannot change character of past acts.
Cited in Coleman v. Tennessee, 97 U. S. 536, 24 L. Ed. 1129, denying
jurisdiction of State court to punish for offense committed while State was
under control <rf Federal military court; Ford v. Surget, 97 U. S. 612, 617,
24 L. Ed. 1024, 1025, holding that person who had committed an act of war
in destroying property under authority of Confederate government was
not liable to action in Federal courts; Baldy v. Hunter, 171 U. S. 393, 43
L. Ed. 210, 18 Sup. Ct. 891, holding .transactions between persons domi-
ciled in territory controlled by Confederate States, valid after reconstruc-
tion; The Amy Warwick, 2 Sprague, 148, Fed. Cas. 342, holding void a
seizure of a vessel made after conclusion of peace; Watson v. Stone, 40
Ala. 466, 91 Am. Dec. 488, holding valid the act of a guardian in investing
A
906 BROWN V. GILMAN. 4 Wheat. 255-297
property of ward in Confederate bonds, under authority of de facto Con-
federate government.
Distinguished in State v. Bell, Phil. (N. C.) 88, holding constitutional a
retrospective law taxing business of citizens for whole year during which
law was passed.
Miscellaneous. Cited in Turner v. Turner, 44 Ala. 450, but application
doubtful ; CuUins v. Overton, 7 Okl. 482, 54 Pac. 705, as to validity of acts
of de facto government.
4 Wheat. 25^297, 4 U Ed. 564, BBOWN' ▼. aiLNLAN.
Certificate holders In land association are not liable for defect in oiftginal
title to assignees of certificates.
Cited in Brown v. Jackson, 7 Wheat. 237, 239, 245, 6 L. Ed. 44S, 444, 445,
applying rule in holding company liable for failure of title to interest con-
veyed by assignment of certificate ; Butterfield v. Beardsley, 28 Mich. 421,
ruling similarly in case of unincorporated joint-stock association, articles
of which provide that ownership of certificate should carry undivided
interest.
Acceptance of collateral security for purchase price waives lien of vendor.
Approved in Jensen v. Wilslef, 36 Nev. 46, Ann. Oas. 1914D, 1220, 132
Pac. 18, holding vendor's lien waived by acceptance of certificate of de-
posit; Knickerbocker Trust Co. v. Carteret Steel Co., 79 N. J. Eq. 509, 82
Atl. 150, holding vendor had waived his lien; The Ann C. Pratt, 1 Curt.
351, Fed. Cas. 406, holding that where bottomry bond is void holder cannot
resort to lien as security for money loaned ; Rice v. Rice, 36 Fed. 861, 862,
holding lien waived by acceptance of note indorsed by third party; so also
in Foster v. Trustees, 3 Ala. 306, holding further that surety acquires no
lien by payment of price so secured ; Brown v. Morrison, 5 Ark. 222, holding
mechanic 's lien waived by 'acceptance of personal note with collateral se-
curity; dissenting opinion in Sheppard v. Thomas, 26 Ark. 656, majority
holding that burden is on vendee, to show intention of vendor to waive lien;
Hunt V. Waterman, 12 Cal. 305, where acceptance of mortgage security held
to operate as waiver; Bradford v. Marvin, 2 Fla. 472, holding, however, that
mere acceptance ol notes indorsed by third person is only prima facie evi-
dence of waiver; Conover v. Warren, 1 Gilm. 501, 41 Am. Dec. 197, holding
lien waived by acceptance of promissory notes of third person indorsed by
vendee; Hawes v. Chaille, 129 Ind. 438, 28 N. E. 849, holding that lien can-
not exist in favor of administrator where ^rder of sale required taking of
collateral security, and report indicated compliance ; Kendrick v. Egglcston, '
56 Iowa, 130, 41 Am. Bep. 91, 8 N. W. 787, applying rule although note so
taken proved worthless; dissenting opinion in Eubank v. Poston, 5 T. B.
Mon. 299, 300, 301, 302, 307, majority holding lien not waived by acceptance
of personal note of vendee ; Hummer v. Schott, 21 Md. 311, holding lien not
waived by acceptance of vendee's note indorsed by third person; McGonigal
v. Plummer, 30 Md. 429, where acceptance of bond held to operate as
waiver; Carrico v. Bank, 33 Md. 243, to same effect; Ahrend v. Odiome, 118
/
4 Wheat. 255-297 NOTES ON U. S. REPORTS. 906
Mass. 266, 267, 19 Am. Bep. 453, 454, where vendor by iabsolate deed held
to have no lien for unpaid purchase money under Massachusetts law, in
absence of express agreement ; Selby v. Stanley, 4- Minn. 74, as to accept-
ance of mortgage ; Glower v. Rawlings, 9 Smedes & M. 127, 47 Am. Dec. 109,
liolding lien waived by acceptance of bond; Johnson v. Sugg, 13 Smedes
& M. 347; Sullivan v. Ferguson, 40 Mo. 90, as to acceptance of vendee's
note indorsed by third person; Partridge v. Logan, 3 Mo. App. 515, and
Blomstrom v. Dux, 175 111. 441, 51 N. E. 757, holding that acceptance
of mortgage on land sold waives implied lipn; Dudley v. Dickson, 14 N. J.
Eq. 253, applying rule, although security taken was not of third person in^
terested in purchase; Bailey v. Adams, 14 Wend. 203, holding mechanic's
lien waived by agreement to look to personal credit of debtor; Fish v. How-
land, 1 Paige Ch. 30, as to acceptance of vendee's note indorsed by third
person; likewise in Williams v. Roberts, 5 Ohio, 41, and Pease v. Kelly,
3 Or. 419; Kauffelt v. Bower, 7 Serg. & R. 83, 87, 10 Am. Dec. 439, 442,
holding vendor accepting bond is not entitled to lien as against subsequent
judgment creditors of vendee; White v. Dougherty, 1 Mart. & Y. 323, 17
Am. Dec. 808, as to acceptance of mortgage upon other land ; Marshall v.
Christmas, 3 Humph. 618, 39 Am. Dec. 201, where vendor accepted note of
vendee secured by tl^ird, person; Blair v. Thompson, 11 Gratt. 443, and Mc-
Candlish v. Keene, 13 Gratt. 624, Holding lien waived by acceptance of deed
of trust upon land conveyed; Whatley v. Central Trust Co., 76 Fed. 79, 43
U. S. App. 643, Hall v. Click, 5 Ala. 364, 39 Am. Dec. 328, Houston v. Stan-
ton, 11 Ala. 425, Shall v. Biscoe, 18 Ark. 158, Tunnell v. Jefferson, 5 Harr.
214, Moreton v. Harrison, 1 Bland Ch. 498, Briggs v. Hill, 6 How. (Miss.)
369, 38 Am. Dec. 445, Servis v. Beatty, 32 Miss. 80, and Moore v. Holcombe,
3 Leigh (Va.), 600, 24 Am. Dec. 685, all arguendo.
, Distinguished in In re Perdue, 2 Bank. Reg. 183 (67), 19 Fed, Cas. 220,
holding lien not waived by acceptance of promissory notes of vendee, subse-
quently adjudged bankrupt; Butts y. Cuthbertson, 6 Ga. 170, holding statu-
tory mechanic's lien not waived by acceptance of personal note of debtor^
Lagow.y. BadoUett, 1 Blackf. 419, 12 Am. Dec. 260, where deed expressly
provided that title should remain in vendor until price paid; Delassus v.
Poston, 19 Mo. 429, and Adams v. Buchanan, 49 Mo. 67, as to acceptance of
personal note of vendee; Boos v. Ewing, 17 Ohio, 521, 49 Am. Dec. 480,
holding that acceptance of mortgage upon land sold is merely evidence of
intention to preserve prior equitable lien; Eskridge v. McClure, 2 Yeig. 87,
holding lien not waived by acceptance of personal bond of vendee; also in
Ross V. Whitson, 6 Yerg. 52, where acceptance was of personal note of ven-
dee; Renick v. Ludington, 16 W. va. 395, holding attorney's lien upon judg-
ment not waived by acceptance of personal bond of client;. De Forest v.
Holum, 38 Wis. 524, holding lien not waived by. acceptance of mortgage
upon land conveyed.
Waiver of vendor's lien. Note, 137 Am. St. Bep. 196, 203.
Taking security from third person as waiver of implied vendor's lien.
Note, 13 Ann. Cas. 869.
907 THE ESTRELLA. 4 Wheat. 298-311
>.
Bzpiess contract that llen.diall be retained to spedfted extent is eiiuiya-
lent to waiver of lien to any greater extent.
Approved in Wyckoff v. Norton, 60 N. J. Eq. 481, 46 Atl. 617, upon ques-
tion of merger o£ liens; Phillipps v. Saunderson, 1 Smedes & M. Ch. 465,
holding that where contract provided for lien to secure payment of install- \
ments, vendor could not assert lien for unpaid portion, agreed to be paid in
cash ; Myers v. Este)^ 48 Miss. 410, 412, where vendor took lien upon two-
thirds of lands sold to secure balance due; Orrick v. Durham, 79 Mo. 177,
holding acceptance of mortgage as security for portion of purc*hase price
waives lien as to remainder; likewise^ in Palmer v. Deslauriers, 19 R. L 505,
34 Atl. 1108 ; The Brig Ann C. Pratt, 1 Curt. 351, Fed. Cas. 409, arguendo.
Exclusion of lien by express contract for charge or security. Note,
16 £. B. 0. 95.
Payment by commercial paper. Note, 85 L. B. A. (N. S.) 92.
Conflict of laws as to contracts relating to realty. Note, L. B. A.
1916A, 1017, 1026.
Miscellaneous. Cited erroneously in Piatt v. Oliver, 1 McLean, 301, Fed.
Cas. 11,114, and McCormick v. Rusch, 15 Iowa, 136; Eubank v. Poston,
6 T.>£. Mon. 291, to point that purchaser with notice of lien takes subject
thereto; so also in Christopher v. Christopher, 64 Md. 587, 3 Atl. 298.
4 Wlieat. 298-311, 4 L. Ed. 574, THE ESTBELIJk.. .
Seal of new government, not recognized by XTnlted States cannot prove
tteelf.
Cited in Stanglein v. State, 17 Ohio St. 463, asserting converse of rule in
holding that seal of recognized government proves itself.
Wbere privateer is lost subsequent to making capture, previous existence
of commlsglon on board may be proved by parol.
Cited as instance where such proof was allowed, in The Bark Vivid, 4
Ben. 325, Fed. Cas. 16,978, discussing generally subject of evidence in ad-
miralty courts.
Bight of adjudication on questions of prize belongs exclusively to courts
of captors' country.
Cited in Nuestra Senora de la Caridad, 4 Wheat. 502, 4 L. Ed. 625, re-
fusing to decree restitution of Spanish vessel captured by insurgents.
XTnlted States courts will decree restitution of vessel captured in violation
of neutrality.
Cited in The Three Friends, 166 U. S. 57, 41 L. Ed. 916, 17 Sup. Ct. 500,
where capturing vessel fits out in United States to support insurgent power;
dissenting opinion in Ex parte Martinez, 66 Tex. Cr. 107, 145 S. W. 1015,
arguendo.
Miscellaneous. Erroneously cited in Gifford v. Livingston, 2 Denio, 400,
and Rohrbacher v. Jackson, 51 Miss. 752.
/
4 Wheat. 311-315 NOTES ON U. S. REPORTS. 903
4 Wheat. 311-31R, 4 I*. Ed. 678, MILLEB ▼. NIOHOUia
It is sufflcient to give Federal .court jiirlsdiction of error to State court if
record sliow that act of OongreBs was applicable to case.
Approved in Willson v. Blackbird etc. Marsh Co., 2 Pet. 261, 7 L. Ed. 414,
where State eonrt has asserted right of State to regulate commerce in ab-
sence of legislation by Congress; Satterlee v. Matthewson, 2 Pet. 409, 7
L. Ed. 468, where it appeared from record that State cf urt had passed upon
question as to whether law making valid void contracts was repugnant to
Federal Constitution; Harris V. Dennie, 3 Pet. 302, 7 L. Ed. 687, where ques-
tion as to lien of United States was presented in special verdict in State
court; Craig v. Missouri, 4 Pet. 429, 7 L. Ed. 910, ruling similarly where rec-
ord of agreed case raised question as to what constituted ''bills of credit'';
Fisher's Lessee v. Cockerell, 5 Pet. 257, 8 L. Ed. 117, holding, however, that
certificate of clerk that document was read at trial is not sufficient to make
document part of record; Davis v. Packard, 6 Pet. 48, 8 L. Ed. 315, where
record showed plaintiff to be a foreign consul; likewise in Beaston v. Bank,
12 Pet. 134, 9 L. Ed. 1029, where it appeared from record that action was
maintainable originally in Federal courts by reason of diverse citizenship;
United States v. Eliason, 16 Pet. 301, 10 L, Ed. 972, ruling similarly where
jurisdictional fact appeared upon record of agreed case; dissenting opinion
in Gill V. Oliver, 11 How. 549, 18 L. Ed. 808, majority denying jurisdi<^on,
ill though record showed that party relied upon rights under treaty; Neilson
V. Lagow, 12 How. 109, 13 L. Ed. 914, as to question involving title of
United States to land ; McCulldugh v. Virgina, 172 U. S. 118, 43 L. Ed. 387,
19 Sup. Ct. 134, where decision of State court was against party claiming
protection of constitutional prohibition against impairing obligation of eon-
tracts; Derby v. Jacques, 1 Cliff. 433, Fed. Cas. 3817, as instance where
Federal court allowed writ of error to decision of State court upon agreed
state of facts..
Distinguis'hed in Telluride Power Co. v; Rio Grande etc. By. Co., 175
U. S. 647, 44 L. Ed. 309, 20 Sup. Ct. 248, holding Supreme Court's jurisdic-
tion on error does not extend to questions of fact which are merely prelimi-
nary to Federal question ; Columbia Water Power Co. v. Columbia Ry, etc.
Co., 172 U. S. 488, 43 L. Ed. 526, 19 Sup. Ct. 247, where right claimed under
Federal law was only incidental to main question decided; Williams v.
Norris, 12 Wheat. 124, 6 L. Ed. 573, denying jurisdiction where question to
which act of Congress was applicable was not raised in State court ; Crowell
V. Randall, 10 Pet. 394, 395, 396, 9 L. Ed. 468, 469, where authorities col-
lected and discussed.
Criticised and qualified in Maxwell v. Newbold, 18 How. 515, 15 L. Ed.
508, holding that the record must show that the question was in fact
raised, and further, that the decision was against the right claimed under
the act.
What record must show as to presentation and decision of Federal
question in State court to confer jurisdiction on Federal Supreme
Court Note, 63 L. B. A. 472.
909 Mcculloch v. state of Maryland. 4 wheat. 316-437
4 Wbaat. 316-487; 4 L. Ed. 579, MeOUUiOOH v. STATE OF MABYXAND.
Exposition of Constitution e8ta1>llslied by legislative acts, on faith of
wliich property advanced, not Ugbtly disregarded.
Approved in State v. Davis, 62 W. Va. 51M, 14 L. R. A. (N. S.) 1142,
60 S. £. 588, applying rule to statute relating to sale of liquors, uncertain
in meaning, recognized for long period by officers charged with duty of
enforcing it; State v. Samuelson, 131 Wis. 514, 111 N. W. 717, holding,
in view of Const., art. VI, § 4, and art. XIII, § 9, and Stats. 1898, §§ 1077
and 1520, county supervisor of assessment is not county officer within art.
VI, § 4, and that Laws 1901, p. 649, c. 445, is valid ; dissenting opinion in
State V. Smith, 158 Ind. 562, 64 N. E. 18, majority upholding Acts 1899,
p. 422, relative to deduction of mortgage debts for purpose of taxation.
Wheeler's Appeal, 45 Conn. 315, holding that where the legislature had long
been accustomed to exercise quasi- judicial functions, it could pass a law
allowing an appeal, where such right was already b&rred by statute ; Fall v.
Hazelrigg, 45 Ind. 585, 15 Am. Bep. 282, applying the principle in con-
struing a statute of frauds; Justice's Opinion, 126 Mass. 594, construing
a State Constitution and holding that the exclusive privilege of the house
of representatives to issue "money bills," was limited to bills that trans-
ferred money from the people to the State and did not include bills appro-
priating money from the State treasury; Clark v. Mowyer, 5 Mich. 468,
construing a statute regulating proceedings at tax sales; Payne v. County,
8 Mo. 476, applying the doctrine of stare decisis, where the action involved
a statute regulating the sale of school lands, which had long been acqui-
esced in and held valid in a similar case; Baltimore v. Board of Police,
15 Md. 458, 74 Am. Dec. 580, People v. Blodgett, 13 Mich. 139, Faribault
V. Misener, 20 Min. 401, and Sears v. Dewing, 14 Allen, 428, discussing
general subject of construction.
Distinguished in State v. 'Fry, 4 Mo. 172, where it was held that, although
States generally had not questioned constitutionality of acts granting di-
vorce, court was not bound by such acquiescence and would declare simi-
lar act void as impairing obligation of contract.
In construing X^onstitntion, subject, context and intention of framers all
considered.
Approved in In re Strauss, 197 U. S. 330, 49 L. Ed. 778, 25 Sup. Ct. 535,
one against whom complaint for felony is filed before magistrate is
"charged" with crime within provisions of Federal law as to extradition;
United States v. Morri^ 125 Fed. ,327, holding conspiracy to prevent
negro citizens from exercising right' to lease and cultivate land, because
they are negroes, is conspiracy to deprive them of right secured to them
by Federal Constitution and laws within Rev. Stats., §5508; 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; Rhode Island v. Massachu-
setts, 12 Pet. 723, 9 L. Ed. 1260, construing judiciary act and holding that
jurisdiction of Supreme Court extended to "controversies of a civil nature"
between States.
N,
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 910
In construing. powers of Congress, all thtngs not prohibited hut consistent
with letter and spirit of Oonstitntlon are valid.
Approved in Flint v. Stone Tracy Co., 220 U. S. 176, Ann. Oas. 1912B.
1812, 55 L. Ed. 423, 31 Sup. Ct. 342, upholding a?;t of August 5, 1909,
§ 38, subsec. 6, as amended in 1910, making returns for assessment of
excise imposed by act public documents and open to inspection as such;
State of Kansas v. State of Colorado, 206 U. S. 88, 51 L. Ed. 971, 27 Sup.
Ct. 655, sustaining original jurisdiction of United States Supreme Court
over dispute between Kansas & Colorado concerning rights to continuous
flow of Arkansas River; United States v. Hoke, 187 Fed. 994, upholding
Act Cong. June 30, 1910, making it felony to transport women from one
State to another for purposes of prostitution; St. Louis etc. R. Co. v.
Hadley, 168 Fed. 341, holding invalid Act Mo., Feb. 27, 1907, establishing
two-cent passenger fares within State, and Act, March 19, 1907, establish-
ing maximum freight rates; Southern Express Co. v. State, 188 Ala. 476,
66 South. 123, holding, under Webb law, Carmiohael bill and Fuller bill,
carrier delivering liquor in State to person there intending to use same
illegally violates State law, unless it had no knowledge of purpose; People
V. Brady, 27 111. 107, 110 N. E. 867, upholding Federal reserve act of
1913; People v. McCullough, 254 111. 33, Ann. Oas. 1913B, 995, 98 N. E.
164, holding that, notwithstanding Const. 111., arts. Ill and Y, legislature
may place assistants of Secretary of State under operation of civil service
statute; Tuttle v. Moore, 3 Ind. Ter. 727, 64 S. W. 591, holding valid Act
Cong. June 28, 1898, § 15, providing for appointment of commissioners
to lay out town sites in Indian Territory, and sell lots, proceeds to be paid
to Indians; State v. Harden, 62 W. Va. 326, 58 S. E. 720, holding valid
legislation vesting in councils of cities and towns .sole power to grant
or refuse State licenses for sales of intoxicating liquors within corporate
limits; Borgnis v. Falk Co., 147 Wis. 373, 37 L. R. A. (N. S.) 1489, 133
N. W. 224, 3 N. C. C. A. 697, holding valid workmen's compensation law,
Laws 1911, c. 50.
United States government is one of enumerated powers; it can exercise
only powers granted to It by Constltntlon.
Approved in Keller v. United States, 213 U. S. 145, '58 L, Ed. 739, 29
Sup. Ct. 470, holding invalid act of Congress, February 20, 1907, providinjj:
criminal punisliment for keeping alien women for purposes of prostitution ;
State of Kansas v. State of Colorado, 206 U. S. 81, 82, 51 L. Ed. 968,
27 Sup. Ct. 655, sustaining original jurisdiction of United States Supreme
Court over dispute between Kansas, and Colorado concerning rights to
continuous flow of Arkansas River; Lottery Case, 188 U. S. 355, 47 L. Ed.
500, 23 Sup. Ct. 326, upholding anti-lottery act; Kelley v. Great Northern
Ry. Co., 152 Fed. 233, upholding Federal Employers' Liability Act of June
11, 1906; Ex parte Anderson, 46 Tex. Cr. 380, 81 S. W. 976, city court
has no jurisdiction to try an accused for alleged violation of State penal
statute; United States v. United States Fidelity & Guaranty Co., 80 Vt.
96, 66 Atl. 813, holding Act February 4, 1905, amending Act Cong. August
13, 1894, and providing remedy in Federal court for persons furnishing
911 Mcculloch v. state of Maryland. 4 wheat. 316-437
materials in any work provided for in contract with United States, does
not preclude action by creditor in State court on .bond given prior to
amendatory act; dissenting opinion in Howard v. Illinois Central R. Co.,
207 U. S. 530, 52 L. Ed. 322, 28 Sup. Ct. 141, majority holding invalid
Employers' Liability Act of June 11, 1906; dissenting opinion in Downes
V. Bidwell, 182 U. S. 359, 376, 45 L. Ed. 1134, 1141, 21 Sup. Ct. 779, 821,
majority upholding Foraker act, providing temporary civil government and
revenues for Porto Rico; dissenting opinion in In re Neagle, 135 U. S. 87,
34 L. Ed. 79, 10 Sup. Ct. 676, arguing that where jurisdiction asserted by
Federal court conflicts with that of State court, such jurisdiction must be
shown to exist flby positive law; the majority held, however, that assault
upon Federal justice was a breach of peace of United States, and marshal
who killed person in repelling such assault could not be arrested and com-
mitted under State law ; United States v. Harris, 106 U. S. 636, 27 L. Ed.
292, 1 Sup. Ct 606, denying power of Congress to make it penal offense
under Federal laws for two or more persons in any State to ''go in disguise
upon the highway or the premises of another for the purpose of depriving
persons of the equal protection of the laws''; In re Barry, 42 Fed. 119,
121 Fed. Cas. 1059 (see also 136 U. S. 605, 608, 34 L. Ed. 507), holding
that Federal court could not issue habeas corpus to review the decree of
State court in divorce proceedings awarding custody of minor child.
, Distinguished in Northern Securities Co. v. United States, 193 U. S.
336, 48 L. Ed. 700, 24 Sup. Ct. 436, upholding anti-trust act of July 2, 1890.
•
Constitution and laws made in pursuance thereof are supreme.
Approved in Mondou v. New York etc. R. Co., 223 U. S. 53, 88 L. R. A.
(N. S.) 44, 56 L. Ed. 347, 32 Sup. Ct. 169, 1 N. C. C. A. 887, holdij]^ that
Act Congress April 22, 1908, respecting liability of interstate carriers for
death or injury of employees, superseded laws of several States so far as
they covered same field; Texas etc. Ry. Co. v. United States, 205 Fed. 383,
holding proviso in Interstate Commerce Act does not prevent application
of third section in prohibiting undue discrimination between localities to
cases where same is brought about by St^te action; Louisville etc. R. Co.
V. Hughes, 201 Fed. 738, holding Act Ohio, May 20, 1910, providing for
inspection and equipment of locomotive boilers, was superseded by Act
Cong. Feb. 11, 1911, c. 103, 36 Stat. 913, as applied to interstate railway^
Oliver v. Northern Pac. Ry. Co., 196 Fed. 436, holding personal repre-
sentative of employee killed on interstate railway is limited to remedy pro-
vided in Federal Employers' Liability Act of 1908; United States vT
Kempf , 171 Fed. 1022, holding Congress may enact laws to punish crim-
inally unauthorized cutting Qf timber on unallotted lands in Indian reserva-
tion within State; Painter v. Napoleon Townsliip, 156 Fed, 293, holding
trustee in bankruptcy may maintain suit against township under bank-
ruptcy act of 1898, as amended in 1903 '^ Smith v. Industrial Accident Com-
mission, 26 Cal. App. 565, 147 Pac. 602, holding State Industrial Accident
Commission without jurisdiction to award compensation to watchman on
interstate railroad, in view of Employers' Liability Act of 1908; Illinois
Cent R. Co. v. Doherty's Admr., 153 Ky, 371, 47 L. B. A. (N. 8.) 31]
4 Wheat. 316-^37 NOTES ON U. S. REPORTS. 912
155 S. W. 1122, holding right of action for railroad employee engaged in
interstate commerce is exclusively under Employers' Liability Act of 1908 ;
Sells V. Atchison etc. Ry. Co., 266 Mo. 180, 181, 181 S. W. 112, holding invalid
judgment under State statute for damages in action by wife for death of
husband who was trackwalker on interstate railway; Thompson v. Wabash
R/. Co., 262 Mo. 482, 171 S. W. 368, holding action for death of locomotive
fireman on interstate railroad must be maintained under Federal Employers'
Liability Act of 1908; Rich v. St. Louis etc. R. Co., 166 Mo. App. 388,
] 48 S. W. 1014, holding Federal Employers' Liability Act of 1908 supersedes
State law; State v. Harper, 48 Mont. 461, Ann. Gaa. 1915D, 1017, 51
L. R. A. (N. S.) 157, 138 Pac. 497, holding that since Coii^ess has passed
Mann act of June 25, 1910, Laws Mont. 1911, c. 1, § l^-is invalid^ Missouri
etc. Ry. Co. v. Lenahan, 39 Okl. 289, 135 Pac. 385, holding State law s^iper-
sedcd by Federal Employers' Liability Act of 1908.
Distinguished in Simpson v. Shepard, 230 U. S. 399, Ann. Cas. 1916A,
18, 57 L. Ed. 1541, 33 Sup. Ct. 729,: holdjng, however, that States still
possess right to prescribe reasonable rates for exclusively internal traffic
on interstate carriers after passage of Interstate Commerce Act of 1887
and amendment of June 29, 1906.
In exercise of power to make "all laws which shall be necessary and
proper" for carrying Into execution enumerated powers, Congress may incoi;^
porate bank.
Approved in Lewis Publishing Co. v. Moi^an, 229 U. S. 314, 57 L. Ed.
1203, 33 Sup. Ct. 867, sustaining power of Congress to require sworn
statement of circulation, etc., as condition to enjoyment of second-class
mail privilege under Act August 24, 1912, § 2 ; McDermott v. State of Wis-
consin, 228 U. S. 128, Ann. Cas. 1915A, 39, 47 L. R. A. (N. S.) 984, 57
L. Ed. 764, 33 Sup. Ct. 431, holding that Congress may construe word
"package" as used in food and drug act of June 30, 1906 ; Hipolite Egg Co.
v. United States, 220 U. S. 58, 55 L. Ed. 368, 31 Sup. Ct. 3^4, upholding
act of Congress, June 30, 1906, § 10, under which adulterated articles of
food, subjects of interstate commerce may be confiscated after reaching
their destination; Wilson v. Shaw, 204 U. S. 34, 51 L. Ed. 357, 27 Sup. Ct.
233, affirming power of Congress to construct Panama Canal; Christopher
v. Norvell, 201 U. S. 226, 50 L. Ed. 786, 26 Sup. Ct. 502, coverture of
legatee of shares in national bank when name placed on books as stock-
holder is no bar to judgment due on assessment by controller of currency;
t)ownes V. Bidwell, 182 U. S. 268, 45 L. Ed. 1099, 21 Sup. Ct. 815, uphold-
ing Foraker act, providing for temporary civil government and revenue
for Porto Rico; Bocke v. Comingore, 177 U. S. 468, 44 L. Ed. 850, 20
Sup. Ct. 705, upholding Rev. Stats., § 161, authorizing Secretary of Treasury
to prescribe regulations for conduct of his department; Mercantile Trust
Co. V. Texas etc. Ry. Co., 216 Fed. 231, holding Congress may charter
corporation to build railway to transport mails, troops and munitions of
war, and authorize it to conduct general business of carrier for its own
purposes, in addition thereto; Dolley v. Abilene Nat. Bank, 179 Fed. 465,
32 L. R. A. (N. 8.) 1065, 102 C. C. A. 607, holding valid bank depositors'
913 Mcculloch v. sta^e of Maryland. 4 wheat. 316-437
guaranty act of Kansas, Laws 1909, c. 61 ; Larabee v. Dolley, 175 Fed. 392,
holding national bank in Kansas may ihaintain suit undeFLaws Kan. 1905,
c- 334, in Federal court, to enjoin illegal expenditures of public money;
United States v. Merry World Tobacco, 103 Fed. 454, upholding act of
July 24, 1897, § 10, cl. 3, prescribing contents of tobacco package ; United
States V. Lackey, 99 Fed. 957, 963, upholding Rev. Stats. § 5507, punish-
ing persons interfering with suffrage; Mayor etc. City of Baltimore v.
Chesapeake & P. Tel. Co., 92 Md. 700, 48 Atl. 468, construing meaning of
word "necessary" in Baltimore ordinance, relating to telephone wires;
Haeussler v. City of^ St. Louis, 205 Mo. 686, 103 S. W. 1042, holding, under
Const. 1875, art. X, § 12, as amended 1902, and City Charter, art. Ill, § 26,
as amended June 23, 1903, St. Louis may issue negotiable bonds for money
borrdi^ed to pay for interstate bridge across Mississippi River; Lancaster
County V. Qreen, 54 Neb^ 101, 74 N. W. 431, construing word "necessary"
in statute giving county commissioners power to contract; State v. Har-
den, 62 W. Va. 326, 58 S. E. 720, holding under Const., art. VI, sec. 46,
legislature may vest in city councils power to grant or refuse State licenses
to sell liquor within corporate limits, notwithstanding Const., art. YIII,
sec. 24, committing to County Courts administration of internal police
affairs in their counties; Magill v. Parsons, 4 Conn. 321, Congress may
provide that national bank may sue in any Federal Circuit Court; Lux-
ton V. North River Bridge Co., 153 U. S. 529, 38 L. Ed. 810, 14 Sup. Ct.
892, asserting power of Congress to create bridge corporation for purpose
of erecting bridge across navigable waters between two States; Robinson
V. Turrentine, 59 Fed. 555, and Thayer v. Hedges, 22 Ind. 285, in discussion
ot general subject of implied powers; In re Rogers, 2 Me. 304, applying
principle in overruling motio^i to set aside a verdict against one arrested
for having in his possession counterfeit national bank bills on ground that
court admitted copy of act establishing bank as proof of incorporation,
and holding act of incorporation to be public act, its public nature arising
from fact that such a bank was an agency of Federal government;
Commonwealth v. Morrison, 2 A. K. Marsh. 99, although recognizing au-
thority of principal case, criticises rule in arguing against constitutionality
of an act establishing an "office of discount" in a State. Rule that this
power is to be exercised as incident to granted powers of Congress excludes
idea that Congress may create purely private corporations within limits of
States, and is recognized in Williams v. Creswell, 51 Miss. 822, where court
held, however, that Congress, by reason of its exclusive jurisdiction over
District of Columbia, could incorporate savings society there and that such
society was entitled to establish an agency in State on same terms as any
foreign corporation.
Making of laws is attribute of sovereignty.
Approved in Henry v. Cherry, 30 R. I. 32, 136 Am. St. Rep. 928, 18 Ann.
Gas. 1006, 24 L. R. A. (N. S.) 991, 73 Atl. 105, holding unwarrantable pub-
lication of person's photograph for advertising purposes not actionable at
common low where only injury alleged is i^ental suffering.
4 Wheat. 316-437 NOTES ON U. S, REPORTS. 914
Government baving right and duty to perform act may select m^aaB; and
anyone contending tbat particular mode of effecting object is excepted nuurt
establlsli that exception.
Approved in State v. Superior Court, 67 Wasb. 41, Ann. Oas. 1913D, 78,
L. B. A. 1915C, 287, 120 Pac. 863, holding, where public service commission
jfixed telephone rates in city, and city obtained injunction restraining com-
pany from collecting rates, prohibition will lie.
To carry Into execution powers granted by Constitution, Congress may
employ those means, in its Judgment, most advantageous. Where such means
are really calculated to effect object intrusted to Congress, courts cannot
inquire into deffree of their necessity.
Approved in McCray v. United States, 195 U. S. 66, 59, 49 L. Ed. 96, 97,
24 Sup. Ct. 769, upholding 24 Stat. 209, 840, as amended in 1902, imposinjr
tax on artificially colored oleomargarine; Missouri etc. Ry. Co. v. May, 194
U. S. 269, 48 L. Ed. 972, 24 Sup. Ct. 638, upholding Tex. Stats. 1901, c. 117,
imposing penalty on railroads for allowing Johnson grass or thistle to
mature and go to seed ; Downes v. Bidwell, 182 U. S. 290, 45 L. Ed. 1108,
21 Sup. Ct. 788, upholding Foraker act. providing temporary civil govern-
ment and revenues for Porto Rico; Fairbank v. United States, 181 U.. S.
288, 45 L. Ed. 865, 21 Sup. Ct. 650, holding void as in conflict with Const.,
art. I, § 9, a stamp tax on foreign bills of lading ; United States v. Two
Barrels of Desiccated Eggs, 185 Fed. 308, holding, under food and drug act
1906, jurisdiction of Federal government over interstate shipments of adul-
terated food continues while food remains in original unbroken package
at destination; Smeltzer v. St. Louis etc. R. Co., 158 Fed. 653, upholding
section 20 of Interstate Commerce Act of 1887, as amended by Hepburn act
of 1906; Brooks v. Southern Pac. Co., 148 Fed. 990, holding void Federal
Employers' Liability Act of 1906; United States v. Scott, 148 Fed. 432,
holding void act of 1898, making it penal for interstate carrier to dis-
criminate against labor unions ; Levin v. United States, 128 Fed. 827, hold-
ing Congress may empower State courts to admit qualified aliens to citizen-
ship; United States v. Moriarity, 106 Fed. 891, upholding census act of
March 3, 1899, punishing making of false and fictitious return; Brundage
V. Deardorf, 92 Fed. 225, holding where constitution of church provides
for amendment of two-thirds of members, and that confession of faith
should not be amended, general conference of society which has adopted
the constitution and faith, composed of representatives from varions
churches, may provide means for amendment of constitution and faith and
submission thereof to vote of members; State v. Joseph^ 175 Ala. 5§7,
Ann. Caa. 1914D, 248, 57 South. 948, holding memorandum made on legisla-
tive bill by Governor's recording secretary inadmissible to show that bill
was not returned within six days as required by Constitution, legislative
records not being required to show that bill was presented to Governor;
Wills V. Jones, 13 App. D. C. 497, holding married woman trading as feme
fiole under section 3 of act of Congress of June 1, 1896, may maintain
action for libel to business without joining husband ; Bernardin v. Seymour^
10 App. D. C. 306, upholding act of Congress of February S, 1893, con-
916 Mcculloch v. state of Maryland. 4 wheat. 316-437
f erring upon this court jurisdiction to entertain appeals, in certain cases,
from commissioner of patents; Thompson v. Riggs, 6 D. C. 114, holding
valid, under legal tender act of 1869, tender by bank of treasury notes in
payment of check drawn by depositor, whose deposits were before act and
in gold; Overshiner v. State, 166 Ind. 189, 191, 51 L. R. A. 748, 59 N. E.
469, 470, upholding Acts 1899, p. 479, authorizing State Dental Association
to appoint three members of board of examiners; McCauley v. Ridgewood
Trust Co., 8]L N. J. L. 91, 79 Atl. 329, holding trust company created
under P. L. 1899, p. 450, p:\ay become guarantor of bond made by corpora-
tion to it as trustee; Overholser v. Nat. Bank for Disabled Soldiers, 68
Ohio St. 247, 96 Am. St. Rep. 658, 67 N. E. 489, upholding creation of
national home for disabled volunteer soldiers; State v. Steele, 39 Or. 427,
65 Pac. 517, upholding apt repealing act providing for county board of
commissioners and changing the construction of the tribunal ; State v. Has-
kell, 84 Vt. 440, 34 L. R. A. (N. S.) 286, 79 Atl. 857, holding valid laws of
1908, No. 211, making it oifense for owner of mill to deposit refuse in
river; Charleston Nat. Gis Co. v. Lowe, 52 W. Va. 669, 44 S. E. 412,
holding gas company may acquire private prox)erty by eminent domain in
order to locate pipe-lines; Minneapolis etc. Ry. Co. v. Railroad Commis-
sion, 136 Wis. 161, 17 L. R. A. (N. S.) 821, 116 N. W. 910, holding that
court cannot have discretion to determine whether Laws 1905, c. 362, relat-
ing to service and charges by railfoads, shall go into effect in particnlai-
eases ; dissenting opinion in Lottery Case, 188 U. S. 372, 47 L. Ed. 507, 23
Sup. Ct. 333, majority upholding anti-lottery act; United States v. Dela-
ware & H. Co., 164 Fed. 257, majority holding "commodities clause" of
Interstate Commerce Act of 1887, as amended by act of 1906, is not regula-
tion of interstate commerce; dissenting opinion in Hepburn v. Oris wold, 8
Wall. 629, 631, 19 L. Ed. 528, 529, arguing that power of Congress to make
treasury notes legal tender could be implied from the power to raise and
support an army (see, also, 2 Duv. (Ky.) 56). The majority, however,
a£6rmed the decision of the State court in Griswold v. Hepburn, 2 Duv.
(Ky.) 26, where the principal case was distinguished on this point (sec
8 Wall. 614, 615, 19 L. Ed. 523). Hepburn v. Griswold was overruled in
The L^al Tender Cases, 12 Wall. 532, 537, 538, 539, 542, 568, 20 L. Ed.
S06, 308, 309, 317, where authority to pass' such an act was held to be
implied from grant of power to regulate the currency (see, however, dis-
senting opinion of Chase, C. J., Id., pp. 570, 573, 575, 612, 626, 631, 642,
20 L. Ed. 318, 319, 320, 332, 336, 338, 341). Again in Lick v. Faulkner, 25
Cal. 418, 419, 421, 432, and George v. Concord, 45 N. H. 438, 440, 442, legal
tender acts have been held valid as incident to power to declare and carry
on war; and in Metropolitan Bank v. Van Dyck, 27 N. Y. 409, 410, 413,
416, 438, 449, 450, 469, 470, 476, 497, 505, 521, 525, and Schollenberger v.
Brinton, 62 Pa. St. 36, 59, 63, as incident to power to borrow money on the
credit of the United States; (but see dissenting opinion in Bank v. Van
Dyck, 27 N. Y. 537). In Maynard v. Newman, 1 Nev. 278, and Milliken
V. Sloat, 1 Nev. 585, they have been upheld as incident to the general
powers of Congress. Juilliard v. Gr^enman, 110 U. S. 438, 439, 441, 442,
445, 450, 28 L. Ed. 211, 212, 213, 215, 4 Sup. Ct. 126, 126, 127, 128, 131,
4 Wheat. 3ie^37 NOTES ON U. S. REPORTS. 916
asserts probably the sound rule and holds that the authority to pass such
acts is to be implied from the power to regulate the curreney.
Several cases apply the principle in sustaining the validity of certain
acts, as implied from the general power of Congress to regulate interstate;
and foreign commerce; Interstate Commerce Commission v. Brinson, 154
U. S. 472, 473, 38 L. Ed. 1055, 1056, 14 Sup. Ct. 1131, 1132, affirming the
constitutionality of the Interstate Commerce Act ; In re Debs, 158 U. S. 578,
S9 L. Ed. llOO, 15 Sup. Ct. 904, holding that Congress may, provide pen-
alty for obstructing interstate commerce ; The City of Salem, 13 Sawy. 612,
37 Fed. 850, upholding act prescribing limit of capacity of passenger
steamers ; Benner v. Dredging Co., 134 ^N. Y. 163, 30 Am. St. Rep. 654,
31 N. E. 330, denying right of one injured by operations of company em-
ployed by Congress to dredge navigable river to set up want of authority
in such company in action for damages. See, also, dissenting opinion of
Harlan, J., in United States v. E. C. Knight Co., 156 U. S. 33, 39, 40, 39
L. Ed. 336, 338, 339, 15 Sup. Ct. 261, 264. The principal case is distin-
guished in United States v. Boyer, 85 Fed. 429, 430, where it was held that
packing-houses engaged in slaughtering, cattle for interstate shipment were
not instruments of interstate commerce, and that Congress could not pro-
vide for inspection of cattle about to be slaughtered.
As aiding ekecution of revenue laws courts have held that Congress may
provide for punishment of persons for interfering, by threats or other-
wise, with right to inform United States marshal of a violation of such
laws, In re Quarles, 158 U. S. 537, 39 L. Ed. 1082, 15 Sup. Ct. 961; to
))rovide that persons chargeable with revenue tax shaU submit disputed
cases to a supervisor of revenue. In re Meador, 1 Abb. (U. S.) 334, Fed.
Cas. 9375 ; to make it penal offense to destroy papers relating to merchan-
dise which is liable to duty. In re Piatt, 7 Ben. 272, Fed. Cas. 11,212 ; and
to apply the provisions of the civil service act to the revenue service,
Butler V. White, 83 Fed. 581, 582.
So, also, as an incident to its power to levy and carry, on war. Congress
had power to suspend operation of statute of limitations during existence
of rebellion, Stewart v. Kahn, 11 Wall. 507, 20 L. Ed. 179; to pass the
**nonintercourse acts," Hamilton v. Dillin, 21 Wall. 93, 22 L. Ed. 532; to
enact pension laws and provide penalty for frauds committed in the exe-
cution thereof, United States v. Fairchili, 1 Abb. (U. S.) 77, Fed. Cas.
15,067, and United States v. Marks, 2 Abb. (U. S.) 535, Fed. Cas. 15,721;
to provide for compulsory enlistment, Antrim's Case^ 1 Fed. Cas. 1063;
Ex parte Coupland, 26 Tex. 417; to confiscate enemies' property and pro-
vide that it should be sufficient bar to an action for recovery of such
property, to prove that plaintiff was "rebel" within meaning of act of
Congress, Norris v. Doniphan, 4 Met. (Ky.) 409, 429; to provide for re-
moval to Federal courts of suits instituted in State courts for acts done
under authority of president during rebellion, Tod v. Court of Common
Plj^as, 15 Ohio St. 387; to authorize the President to suspend the privilege
of the writ of habeas corpus in cases contemplated by Constitution , McCall
V. McDowell, 1 Abb. (U. S.) 229, 230, 231, Deady, 254, Fed. Cas. 8673.
In aid of national bankrupt law, Congress may provide for ptmishment
of persons guilty of fraud in the disposition of a debtor's goods, United
\
917 Mcculloch v. state of Maryland. 4 Wheat. 316-437
States V. Pusey, 6 Bank. Reg. 288, 27 Fed. Cas. 632 ; and provide for com-
positions with creditors. In re Reiman, 7 Ben. 466, Fed. Cas. 11,673, 11
Bank. Reg. 33. Qn the same piinciple Congress may, undier national bank-
ruptcy law, provide that District Courts may transfer franchises of insol-
vent railroad companies, Sweatt v. Railroad Co., 3 Cliff. 352, Fed. Cas.
13,684.
A variety of cases have applied the principle in sustaining laws passed
in aid of other granted powers; In re Jackson, 14 Blatchf. 250, Fed. Cas.
7124, holding that as incident to the power to establish postoffices and post-
roads. Congress may prohibit mailing of letters or circulars concerning
lotteries; RJiode Island v. Masachusetts, 12 Pet. 721, 9 L. Ed. 1259, sus-
taining validity of an act providing Hhat jurisdiction of the Supreme
Court shall extend to controversies between two or more States; United
States V. Gratiot, 14 Pet. 537, 10 L. Ed. 578, holding that the power to
"dispose of" public lands includes power to^ lease for purpose of mining;
Kohl V. United States, 91 U. S. 373, 23 L. Ed. 451, asserting power of Con-
gress to condemn land within the limits of State for the purpose of erect-
ing Federal buildings ; likewise in Cherokee Nation v. Railway Co., 33 Fed.
911, asserting power to condemn land on an Indian reservation to provide
right of way for a railroad; Springef v. United States, 102 U. S. 593, 25
Is. Ed. 256, holding that the United States in order to enforce payment of
an income tax >may distrain real and personal property of the debtor ;
Fong Yue Ting v. United States, 149 U. S. 713, 37 L. Ed. 918, 13 Sup. Ct.
1022, holding Chinese registration law valid; Schenck v. Peay, 21 Fed.
Cas. 682, holding that if tax levied by Congress is constitutional, provision
may be made for absolute forfeiture of property in case of nonpayment;
Logan V. United States, 144 U. S. 283, 36 L. Ed. 486, 12 Sup. Ct. 622, up-
holding act providing for punishment of persons conspiring to injure pris-
oners in custody of United States marshal; United States v. Gettysburg
etc. Ry. Co., 160 U. S. 681, 40 L. Ed. 581, 16 Sup. Ct. 429, denying juris-
diction of Supreme Court to determine limit to amount of land Congress
may condemn for the purpose of laying out a national park; Bloomer v.
StoUey. 5 McLean, 161, Fed. Cas. 1669, asserting po^er of Congress to
grant ^n extension of a patent right; Mintum v. Brower, 24 Cal. 663,
holding that Congress could require that persons who had held land under
another government, should, upon acquisition of territory by the United
States under treaty, submit titles to court provided to determine their
validity. See, also, dissenting opinion of McLean, J., in Dred Scott v.
Sandford, 19 How. 542, 15 L. Ed. 757.
A Virginia case, testing the validity of an act of Congress by the rule
laid down in the principal case, held that an act authorizing the sale of
land en masse for nonpayment of taxes was not an "appropriate" mean'^
for collecting such taxes, if the amount due could be realized by a sale
of part, Martin v. Snowden, 18 Qratt. 146. Following the principal case
also, several cases have applied the rule in holding that Congress is the
exclusive judge as to what is "appropriate" legislation to enforce the pro-
visions of the thirteenth and fourteenth amendments. The constitu-
tionality of the "civil rights" act was thus sustained in United States v.
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 918
Rhodes, 1 Abh. (U. S.) 48, 50, 51, 56, Fed. Cas. 16,151, and People v. Wash-
ington, 36 Cal. 669, where State statutes prohibiting negroes and Mongolians
from testifying against white persons were held to be void. The Supreme
Court, however, uniformly held such legislation void. The power to enact
such laws, they declared, is not to be implied from the language of the
amendments. The prohibitions contained therein operated directly on
the States, and if State statutes were repu^ant they were ipso facto void.
See, however, dissenting opinions in United States v. Reese, 92 U. S. 253,
23 L. Ed. 577; Baldwin v. Franks, 120 U. S. 701, SO L. Ed. 776, 7 Sup. Ct-
667; Civil Rights Cases, 109 U. S. 51, 27 L. Ed. 853, 3 Sup; Ct, 50. The
Civil Rights Cases denied the power of Congress to prohibit individuals
from discriminating against negroes in refusing them admittance to inns
and public conveyances in certain cases.
The remaining cases under this head show an extension of the principle:
Slaughter House Cases, 10 Wall. 64, 21 L, Ed. 405, holding that where
legislature is clothed with power to pass laws to protect safety and health
of citizens, it may create monopoly for purpose of slaughtering cattle and
confine its operations to particular place ; Tilley v. Commissioners, 4 Woods,
444, 5 Fed. 656, denying jurisdiction of courts to determine the question
as to what is reasonable regulation of freights and tariffs, where legislature
has power to so regulate; Nicol v. Ames, 89 Fed. 149, asserting power
of Congress to choose means for collecting revenue tax; Chicago etc. Ry.
Co. V. Attorney General, 5 Fed. Cas. 597, holding that provision in charter
of railroad that company should be subject to such regulations as might
be enacted by legislature, gave legislature right to provide schedule of
rates; State v. Gleason, 12 Fla. 260, holding that grant of power in State
Constitution to issue writs of quo warranto, included the power to institute
proceedings by information in the nature of quo warranto; Hanepek v.
Yaden, 121 Ind. 373, 16 Am. St. Eep. 401, 23 N. E. 255, and Majrtin ▼,
Martin, 20 N. J. Eq. 428, 430, 434, holding that States in exercise of their
power to regulate contracts may prescribe that contracts shall be satisfied
in gold or silver coin; Arbenz v. Railroad Co., 33 W. Va. 7, 10 S. E. 16,
holding that grant 6f power to city to grant a franchise to railroad implies
grant of power to allow the company to establish its own grade, p^vided
the use of streets is not unnecessarily impaired; Union Bank v. Jacobs, 6
Humph. 522, holding that a corporation created to construct road has
power to borrow money to accomplish that object;. Ellerman v. Chicago
etc. Stockyards Co., 49 N. J. Eq. 242, 23 Atl. 295, denying right of in-
dividual stockholders to questiqp acts of directors of corporation, done in
good faith and to accomplish the objects of corporation; Atkinson v. Rail-
road Co., 2 Fed. Cas. 110, holding that where legislature has empowered
corporation to bridge stream, courts cannot inquire as to whether sueh
action was discreet exercise of its power; In re Pearson, 8 Fla. 511, where
grant of power to courts to provide for contempt was held to embrace
power to punish member for nonattendance ; Joy v. Simpson, 2 N. H. 183,
sustaining power of referees to determine cost of a reference, holding such
determination to be incident to cause submitted; Groner v. City Council,
77 Va. 490, holding that harbor commissioners appointed by Governor to
919 Mcculloch v. state of Maryland. 4 wheat. 316-437
snperviae dredging of harbor may appoint inspector to supervise disposi-
tion of matter excavated (but see ^e dissenting opinions in Low v. Rail-
road Co., 52 Cal. 63, and People v. Hoge, 55 Cal. 624). The following
cases cite the principal case approvingly upon this point, but without par-
ticular application: United States v. Haun, 26 Fed. Cas. 232, Ex parte
Selma etc. R. R. Co., 45 Ala. 728, 6 Am. Rep. 728; Ex parte Henderson, 6
Fla. 294; Davis v. School District, 44 N. H. 405; Armington v. Barnet, 15
Vt. 749, 40 Am. Dec. 706; dissenting opinion in People v. Pullman's P. C.
Co., 175 Dl. 167, 170, 51 N. E. 679.
The definition of the term "necessary" as deduced from this rule has
been applied in the following cases: Montague v. Richardson, 24 Conn.
348, 63 Am. Dec. 175, holding that statute exempting from execution prop-
erty "necessary" to sustain life should be construed to embrace property
requisite to enable persons to live in convenient and comfortable manner;
Cotton V. Leon, 6 Fla. 644, 645, defining term as used in State Constitution
and holding it to mean "appropriate" ; Lancaster County v. Green, 54 Neb.
101, 74 N. W. 431, holding necessary powers of board of county commis-
sioners embrace only those powers "reasonably required by the exigencies
of each case"; State v. Hancock, 35 N. J. L. 546, holding that exemption
from taxation of property of railroad, necessary to accomplish end for
which it was incorporated, embraces all things "suitable and proper" and
extends to gravel land purchased to supply material for repair of road-
beds ; Obnstead v. Proprs.* etc., 47 N. J. L. 328, construing an act empower*
ing an aqueduct company to condemn lands necessary for its purposes;
likewise in National etc. Co. v. Railroad Co., 54 N. J. Eq. 155, 33 Atl. 865,
in determining amount of land necessary for a railroad company; State
ex rel. v. Regents, 54 Wis. 170, 11 N. W. 477, holding that under grant to
regents of university of all powers "necessary or convenient to accomplish
the objects prescribed by law," regents may impose fee upon each student
for heat and light, although statutes provide that students shall not pay
any fees for tuition. See, also. In re Steele, 2 Flipp, 329, Fed. Cas. 13,346.
The court, in Moale v. Cutting, 59 Md. 522, however, while citing the prin-
cipal case as an instance where the term was construed, held that where
an executor was empowered to sell property of an estate when necessary,
such term meant absolutely or imperatively necessary. In Leisse v. Rail-
road Co., 2 Mo. App. 114, the principal case is criticised on this point,
the court holding that nothing can be necessary to the accomplishment of
an object which can be dispensed with without abandoning the object itself.
Accordingly it was held that where land was not indispensable to the
enjoyment of a railroad charter, an appropriation of it was unjustifiable.
The rule was still further limited in In re Jacobs, 98 N. Y. 112, 50 Am. Rep.
645, where court held that the question as to whether the means is appro-
priate is not final for legislature but may be inquired into by the courts.
Here an act "to improve the public health by prohibiting the manufacture
of cigars in tenement houses," although ostensibly a health regulation, was
held void. Such an act,' it was declared, was inappropriate as a health
regulation and destroyed property and interfered with the rights of
citizens.
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 920
Assessments for improvementB by front-foot rule. Note, 28 L. B. A.
(N. S.) 1157, 1158. *"
Personal liability to pay assessment for local improvement. Note, 85
L. B. A. 58.
Power to tax Involves power to destroy.
Affirmed in Albert Pick & Co. v. Jordan, 169 Cal. 15, Ann. Oas. 19160,
1237, 145 Pac. 512, upholding Act 1905, and Political Code, § 416, requiring
license tax from foreign corporations.
Explained in Flint v. Stone Tracy Co., 220 U. S*JL68, Ann. Oas. 1912B,
1312, 55 L. Ed. 420, 31 Sup. Ct. 342, upholding act of August 5, 1909, § 38,
relating to excise tax on franchises of State corporations.
Distinguished in State v. Nygaard, 159 Wis. 401, 150 N. W. 515, holding,
notwithstanding Const., art. lY, § 26, declaring that compensation of
public officer shall not be increased or diminished during term of office,
circuit judge is liable for income tax, under Const., art. VIII, § 1.
The States cannot, by taxation or otherwise, control in any. manner opera-
tions of bank chartered by United States.
Approved in Choctaw etc. R. Co. v. Harrison, 235 U. S. 298, 59 L. Ed.
237, 35 Sup. Ct. 27, holding gross revenue tax imposed by Okl. Act May
26, 1908, cannot be exacted from corporate lessee, under Curtis Act June
28, 1898, of coal mines upon unallotted lands of Indian tribes; Farmers &
Mechanics' Savings Bank v. State of Minnesota, 232 U. S. 521, 525, 526,
58 L. Ed. 709, 711, 34 Sup. Ct. 354, holding State cannot tax bonds issued
by municipalities in Indian territory and in Oklahoma territory; Williams
V. City Talladega, 226 U. S. 419, 57 L. Ed, 281, 33 Sup. Ct. 116, holding
invalid municipal license tax on telegraph company upon doing of local
business within State ; Easton v. Iowa, 188 U. S. 229, 230, 47 L. Ed. 456,
23 Sup. Ct. 290, holding Iowa Code, §§ 1884, 1885, punishing bank officials
for receiving deposits when bank is insolvent does not apply to national
banks ; The Roanoke, 189 U. S. 198, 47 L. Ed. 774, 23 Sup. Ct. 494, holding
2 Ball. Codes, §§ 5953, 5954 (Wash.), giving lien on vessel for work done
void, in so far as they interfere with maritime law ; United States v. Owens,
100 Fed. 70, holding Federal government cannot tax bond given by saloon-
keeper pursuant to State statute; Tarrant v. Bessemer Nat. Bank, 7 Ala.
App. 294, 61 South. 49, holding Code 1907, § 2082, subd. 8, does not permit
deduction from value of bank 's capital stock of amount invested in exempt
bonds of State; Western Union Tel. Co. v. Visalia, 149 Cal. 746, 87 Pac.
1023, holding franchises granted by Congress to Western Union Telegraph
Comp&ny to construct and maintain lines along post-roads cannot be taxed
by city upon whose streets same are exercised; Hibernia etc. Soc. v. San
Francisco, 139 Cal. 207, 209, 72 Pac. 921, 922, holding United States Rev.
Stats., § 3071, does not exempt orders on treasury for interest on United
States consols from State taxation; Penick v. Foster, 129 Ga. 221, 12 Ann.
Cas. 346, 12 L. B. A. (N. S.) 1159, 58 S. E. 775^ holding, under tax laws
of Geoi^a, bonds issued by municipal corporation, as evidence of loan
made to it, are not taxable; State v. Illinois Cent. R. Co., 246 111. 210, 92
N. £. 826, holding valid Illinois Central Railroad charter, § 22, requiring
921 • Mcculloch v. state of Maryland. 4 wheat. 316^37
company to pay to State seven per cent of gross receipts in li^u of taxes,
altftoogh it required payment from interstate business; Dutton v. Board
of Review, 188 111. 389, 58 N. E. 954, construing word "exempt" as used
in Hurd 's Rev. Stats. 1899, c. 120, par. 329, cL 4, restricting right of appeal
from decision of board of review ; State v. Thos. Cruse Say. Bank, 21 Mont.
52, 53, 54, 57, 45 L. R. A. 760, 761, 52 Pae. 734, 735, holding Pol. Code^
§ 4061, imposing license tax on banks, is not in conflict with Mont. Const.,
art. XV, § 11, though national baulks are not taxed; New York etc.'R. Co.
V. Board of Chosen 'Freeholders, 76 N. J. L. 669, 16 Ann. Oas. 858, 74
Atl. 956, holding resolution by Hudson county freeholders fixing ferry
rates from that county to New York does not include a fixing of rates for
railroad for passengers over its road and over ferry which is operated as
extensi^ of its road; Howard Sav. Inst. v. Newark, 63 N. J. L. 549, 44
Atl. 655, holding United States gold and silver certificates are not taxable
und^r New Jersey act of May 16, 1894; Raton Water-Works Co. v. Raton,
9 N. yi, 92, 49 Pac. 906,- holding where city's power to tax for water rents
is limited by statute it is powerless to pay any deficiencies; City of New
York V. McLean, 170 N. Y. 385, 63 N. E. 383, holding New York city charter
(Laws 1897, c. 378, § 936), providing for action for recovery of personalty
tax does not impose personal liability on nonresidents; In the Matter of
the Taxation of the Salaries of Judges, 131 N. C. 696, 42 S. E. 971, holding ^
salaries of judges cannot be taxed under Const., art. IV, § 23, prohibiting
decrease in their salaries; Merchants' State Bank etc. v. County of Mc-
Henry, 31 N. D. 110, 153 N. W. 388, applying rule to national bank;
State V. Texas etc. Ry. Co., 100 Tex. 281, 98 S. W. 834, holding Sess. Laws
1905, p. 336, c. 141, imposing tax on gross receipts, not enforceable against
defendant railway, notwithstanding act of May 2, 1873; Western Union
Telegraph Co. v. Lakin, 53 Wash. 334, 17 Ann. Oas. 718, 101 Pac. 1097,
liolding city may regulate manner in which telegraph company operating
under Federal franchise shall conduct its business within city limits, but
cannot grant independent franchise subject to taxation by State; Page v.
Pierce County, 25 Wash. 12, 64 Pac. 803, holding Puyallup Indian reser-
vation lands were not subject to State taxation in hands of vendee prior to
full payment of price ; dissenting opinion in Keith v. State Funding Board,
127 Tenn. 483, 496, Ann. Oas. 1914B, 1145, 155 S. W. 153, 157, majority
holding invalid Act Tenn., Feb. 21, 1913, exempting State bonds issued to
pay off outstanding bonded indebtedness from taxation by State, or any
county^- or municipality. This principle has also been applied in holding
void numerous State and municipal statutes. Thus a general license tax
imposed upon foreign banking corporation has been held inoperative as to
national banks or branches thereof, Osbom v. United States Bank, 9
Wheat. 859, 860, 868, 6 L. Ed. 233, 235, Owensboro Bank v. Owensboro,
173 U. S. 667, 43 L. Ed. 852, Second National Bank v. Caldwell, 13 Fed.
433, Mayor v. First Nat. Bank, 59 Ga. 648, Carthage v. Bank, 71 Mo. 509,
86 Am. Rep. 495, and Pittsburg v. Bank, 55 Pa. St. 48. So also where
State low required banks chartered by State to pay bonus for privilege of
doing business, right to such bonus ceased upon surrender of its charter
by bank and reorganization under acts of Congress, State v. Bank, 33 Md.
V
4 Wheat. 316-437 NOTES ON U. S. REPORTS. ' 022
84. State statutes fixing a maximum rate of interest do not apply to
national banks, Farmers' etc. National Bank v. Dearing, 91 U. S. 33, 34,
23 L. Ed. 199, Central National Bank v. Pratt, 115 Mass. 545, 15 Am- Rep.
145, Barker v. Bank, 59 N. H. 310, First National Bank v. Garlinghonse,
22 Ohio St. 504, 10 Am. Rep. 769, Bank v. Boylen, 26 W. Va. 557, 53 Am.
Rep. 115. Nor can statute prescribing form for transferring corporate
stock control transfer of stock in national bank. Doty v. Bank, 3 N. D. 16,
53 N. W. 80. On the same principle tlie court in State v. Curtis, 35 Conn.
380, 95 Am. Dec. 266, denied writ of quo warranto to try right to office
of director in bank organized under national currency act. As approving
the rule in discussing the general subject, see Citizens' Bank v. Bonny, 32
La. Ann. 242, Commercial Bank v. Nolan, 7 How. (Miss.) 526, and First
National Bank v. Gruber, 87 Pa. St. 476.
Distinguished in Flint v. Stone Tracy Co., 220 U. S. 152, Ann. Oas. 1912B,
1312, 55 L. Ed. 414, 31 Sup. Ct. 342, upholding act of August 5, 1909,
§ 38, relating to excise tax upon franchises of State corporations; Knowlton
V. Moore, 178 U. S. 60, 44 L. Ed. 977, 20 Sup. Ct. 754, upholding war rev-
enue act (20 Stat. 448), imposing tax on legacies; Home Title Ins. Co. v.
Keith, 230 Fed. 909, upholding Act Oct 22, 1914, § 5, imposing stamp tax
on deeds ; Williams v. Talladega, 164 Ala. 642, 643, 646, 51 South. 332,
' 333, holding foreign telegraph company accepting provision of U. S. Rev.
Stats., §§ 5263-n5268, is subject to license tax on its interstate business;
State V. Farmers' etc. Savings Bank, 114 Minn. 105, 106, 107, 109, 130
N. W. 447, 448, holding municipal bonds issued by municipalities of United
States territories in hands of savings banks of State are taxable; Transit
Co. V. Lynch, 18 Utah, 387, 55 Pac. 641, upholding Utah Const., art. XIII,
§ 2, and Sess. Laws, p. 423, taxing railroad cars ; dissenting opinion in
Snyder v. Bettman, 190 U. S. 259, 47 L. Ed. 1039, 23 Sup. Ct. 807, majority
holding 30 Stat. 448, imposes succession tax on bequest to city for public
purpose; Bank v. Peterborough, 56 N. H. 45, 46, 22 Am. Bep. 425, 426,
where it was held that general laws subjecting surplus capital of banks
to taxation was applicable to national banks, on ground that tax upon
surplus capital beyond amount obliged to be carried by act of Congress
was but tax upon bank property and did not impair the operations of the
bank. So also in State v. Fields, 98 Iowa, 750, 62 N. W. 654, it was held
that an officer of national bank was amenable to a State law providing
a penalty for receiving deposits with knowledge that the bank was insol-
vent. Such a law the court declared was a police regulation designed to
prevent frauds by banks generally and not an interference with the right
.of Congress to regulate national banks.
This general rule has been modified by act of Congress (Rev. Stats.,
§5219), and States may now tax shares of national banks in hands of
individual stockholders, providing, however, that such taxation does not
exceed rate imposed upon shares of banks organized under State laws.
A number of cases distinguishing the principal case do so under this act:
Pollar V. State, 65 Ala. 630, 631, Bank of Albia v. Albia, 86 Iowa, 37, 52
N. W. 336, Stetson v. Bangor, 56 Me. 278, 283, 285, Austin v. Boston, 14
Allen, 361, State v. Haight, 31 N. J. L. 402, 403, and Salt Lake etc. Bank v.
023 Mcculloch v. state of Maryland. 4 wheat. 316-437
Golding, 2 Utah, 5, 7, 8, 10. And the act thus empowering the States to
levy such tax extends to territories, Talbot v. Silver Bow County, 139 U. S.
440,. 445, 35 L. Ed. 210, 212, 11 Sup. Ct. 595, 597, People v. Moore, 1 Idaho,
507. The fact that there are no State banks in existence in particular State
does not impair right of the State to tax shares of national banks in hands
of individuals, Smith v. Webb, 11 Minn. 507. But where there are such
banks and they are exempt from taxation or are taxed in some other man-
ner than on their shares, the tax on national bank shares is invalid. City
Bank v. City of Paducah, 2 Flipp. 66, Fed. Cas. 2743 ; McHenry v. Downer,
116 Cal. 25, 47 Pac. 780; Utica v. Churchill, 33 N. Y. 231, 234. So also
, where a general law allows taxpayers to deduct bona iide debts from credits
subject to taxation, but denies such privilege to owners of national bank
stock, there is sufficient discrimination to render the tax void as applied
to national bank shares. Mercantile Bank v. Shields, 59 Fed. 954; Wasson
V. Bank, 107 Ind. 213, 8 N. E. 100 ; Bank of Albia v. Albia, 86 Iowa, 37, 52
N. W. 336 ; Bressler v. Wayne County, 25 Neb. 472, 41 N. W- 357. And the
provisions of the act cannot be avoided by assessing the shares of national
banks at an excessive value. People v. Weaver, 100 U. S. 543, 85 L. Ed. 706.
Whether a State may require a national bank to pay on behalf of its
respective stockholders the amount assessed against their shares, seems not
to have been determined by the Federal courts. The Alabama courts have
held that such a requirement is not in conflict with the act of Congress.
National Bank v. Mobile, 62 Ala. 291, 34 Am. Bep. 17, Sumter County v.
National Bank, 62 Ala. 468, 34 Am. Bep. 32, Stapylton v. Thaggard, 91
Fed. 95, and Boston v. Beal, 51 Fed. 308, however, while not expressly rec-
ognizing the power of the States to require such payment, held, that where
tax is levied upon owners of bank shares, to be paid in first instance by
bank, which shall have lien upon shares for reimbursement, no suit can
be maintained against receiver of insolvent bank where property repre-
sented by shares has disappeared, for there being nothing from which bank
can be reimbursed, tax will fall upon assets of bank. In a Kansas case,
where the question arose, this power attempted io be asserted by the
State was expressly denied. Bank of Leoti v. Fisher, 45 Kan. 728, 26 Pac.
483.
State taxation of national banks. Notes, 69 Am. St. Rep. 39; 45 L. B. A.
737, 743.
States have no power, by taxation or otherwise, to impede or in any man-
ner control operation of constitutional laws enacted by Congress to carry into
execution powers vested in general government.
This principle has, in numerous cases, been made the criterion of the
constitutionality of State legislation. It has been approved in Hibemia
Savings etc. Soc. v. San Francisco, 200 U. S. 313, 50 L. Ed. 496, 26 Sup.
Ct. 265, United States Treasury checks for interest on government bonds,
where intended for immediate payment, are taxable by State in hands of
owner ; South Carolina v. United States, 199 U. S. 452, 455, 466, 50 L. Ed.
266, 267, 271, 26 Sup. Ct. 110, United States may exact revenue license
from dispensing agent of State which has taken charge of liquor business;
4 Wheat. 316-437 / NOTES ON U. S. REPORTS. 924
^ United States v. Rickert, 188 U. S. 438, 439^,47 L; Ed. 536, 537, 23 Sup. CU.
480, 481, holding lands allotted under Indian allotment act of February
8, 1887, chapter 119, are not taxable by State; United States v. Thurston
Co., 143 Fed. 289, lands allotted to Indians under 22 Stats. 342, are exempt
from State taxation during period of trust; People's Sav. Bank v. Lay-
man, 134 Fed. 638, assessing property of savings bank under Code Iowa,
§ 1322, providing that assessment be made on its shares of stock, fact that
part of assets consist of government bonds does not entitle bank to deduc-
tion of such amount ; United States v. Moore, 129 Fed. 634, den3dng Federal
jurisdiction to punish conspiracy to oppress and intimidate citizen to pre-
vent him from establishing miners' union in a State, in furtherance of.
which defendants shot citizen; Pumell v. Page, 128 Fed. 496, and Pumell
V. Page, 133 N. C. 126, 128, 46 S. E. 534, 535, both holding State cannot
tax salary of Federal officer ; Bettman v. Warwick, 108 Fed. 49, 50,- affirm-
ing Warwick v. Bettman, 102 Fed. 129, holding notary's bond is not sub-
ject to revenue tax under act of June 13, 1898; Anderson v. Elliott, 101
Fed. 613, holding State authorities cannot arrest United States marshal
for acts done under color of Federal process; Linton v. Childs, 105 Ga.
572, 32 S. E. 619, holding State tax on bank presidents cannot include
presidents of national banks; New Orleans v. Salmen Brick & L. Co., 135
La. 842, 66 South. 242, holding State cannot tax public property of another
State within its boundaries ; Ford v. City of Great Falls,-46 Mont. 307, 308,
127 Pac. 1008, 1009, holding, in view of Rev. Codes, § 3386, and Const.,
art. XII, § 2, and Rev. Codes, § 2499, exempting property of Federal gov-
ernment from taxation, city may defray expense of paving in front of
property owned by Federal government; Western Union Tel. Co. v. Wake-
field, 69 Neb. 277, 95 N. W. 661^ holding void village ordinance imposing
occupation tax on telegraph companies doing business in village in so far
as it taxes business of company transacted for government; Chosen Free-
holders V. Slater, 84 N. J. L. 591, 88 Atl. 214, holding county may not
receive fees collected by county clerk under naturalization laws of Con-
gress; Schlesinger v. Gilhooly, 189 N. Y. 15, 16, 12 Ann. Oas. 1138, 81
N. E. 624, holding promissory notes, void for usury as between original
parties, collectible in hands of State bank, under New York banking law;
Hawley v. Hurd & Russel Lumber Co., 72 Vt. 125, 52 L. B. A. 196, 47 Atl.
402, upholding Vt. Stats., § 1306, providing that negotiable paper may be
attached by trustee process before notice of transfer; Old Nat. Bank v.
State, 58 W. Va. 560, 52 S. E. 494, United States bonds held by national
bank as part of its capital cannot be taxed under State authority; United
States Glue Co. v. Town of Oak Creek, 161 Wis. 220, 153 N. W. 244, uphold-
ing Stats. 1911, § 1087m2, subd. 3, imposing tax on income from business
transacted within State; dissenting opinion in Trammell v. Dinsmore, 102
Fed. 807, majority upholding Georgia railroad commission's regulations re-
quiring revenue tax to be paid by express companies and not by shipper;
Cumberland & P. R. Co. v. State, 92 Md. 684, 52 L. R. A. 764, 48 Atl. 607,
arguendo. State cannot tax United States bonds in any way. Such was
the holding in Weston v. Charleston, 2 Pet. 466, 467, 469, 7 L. Ed. 487, 488,
the leading case upon this point, which has been followed in Bank of
926 Mcculloch v. state of Maryland. 4 wheat. 3ie-437
/
Commerce v. New York City, 2 Black, 632, 634, 17 L. Ed. 456, 456, Van
Allen y. Assessors, 3 Wall. 590, 594^ 597, 18 L. Ed. 237, 238, 239, Grether v.
Wright, 75 Fed. 753, 43 U. S. App. 770, State v. City of Newark, 39 N. J. L.
382, State v. Hart, 31 N. J. L. 436, and People v. Hoffman, 37 N. Y. 14, 15.
Nor can a State, under a general income tax, tax income derived from
interest on United States securities. Bank of Kentucky v. Commonwealth, 9
Bush (Ky.), 48, Opinion of Justices, 53 N. H. 638. The dissenting opinion
in Coite v. Society for Savings, 32 Conn. 191, cites the principal case in
denying assertion of majority that where State statute provided for tax
upon State banks to be leaded on basis of total assets of bank, such tax
was upon corporation as such, and bank was not entitled to deduct amount
of dei)osit8 invested in United States securities. It has been held, how-
ever, that where shares of national banks in the hands of stockholders are
taxable by the States under act of Congress, regardless of fact that they
are invested in United States bonds, State bank shares so invested are also
taxable. People v. Conunissioners, 35 N. Y. 447. So also in Home Ins.
Co. v. New York, 134 U. S. 598, 33 L. Ed. 1029, 10 Sup. Ct. 594, the
Supreme Court held that as State could tax franchises of its own corpora-
tions, it could take as basis for such taxation capital stock of corporation,
although it was invested in United States securities.
The question as to the power of the States to tax United States lands
has also been the subject of many decisions where this principle has been
universally applied. Thus a State cannot impose a tax upon such lands
whether held by the United States for military posts or other strictly
Federal purposes, or merely as Indian reservations: Van Brocklin v. Ten-
nessee, 117 U. S. 156, 157, 158, 170, 177, 29 L. Ed. 846, 847, 852, 854,
6 Sup. (5t. 673, 674, 680, 684; United States v. Weise, 2 Wall. Jr. 74, Fed.
Cas. 16,659; Fagan v. Chicago, 84 111. 233; Foster v. Commissio];iers, 7 Minn.
147; People ex rel. v. United States, 93 111. 36, 37, 34 Am. Bep. 158, 159.
And even where lands have been granted to a railway company, but the
title remains in the United States as a lien for surveyor's fees, they are
not subject to taxation by a State, Wisconsin etc. R. R. Co. v. Taylor Co.,
52 Wis. 51, 60, 8 N. W. 833, 838. And this is true, although such com-
pany has sold its interest to a third person, in whom title is apparently
complete, Tyler v. Cass County, 1 N. D. 382, 48 N. W. 233. Upon this
principle also temporary buildings erected by the United States upon land
leased for a short term have been held to be personal property of the
Federal government and not taxable with the land, Andrews v. Auditor,
28 Gratt. 121, 123, 125. But the principal case is distinguished on this
point in Burlington etc. Ry. Co. v. Hayne, 19 Iowa, 140, where lands
granted to a railroad company were held to be taxable by the State after
the company became possessed of an unconditional title in fee.
The question as to the constitutionality of State laws conflicting with
the power of Congress to regulate commerce and impose duties on imports,
has been the subject of many decisions, and the extent to which the princi-
pal case has been applied in determining their validity is shown by the fol-
lowing cases : Brown v. M^land, 12 Wheat. 449, 457, 6 L. Ed. 689, 692,
holding void State law imposing upon an importer of goods in original pack-
4 Wheat. 31&-437 NOTES ON U. S. REPORTS. 926
age license tax for privilege of selling such goods ; Passenger Cases, 7 How.
407, 12 L. Ed. 754, holding void law requiring master of vessel to pay per
capita tax upon immigrant passengers (but see dissenting opinion, pp. 532,
534, 538, 12 L. Ed, 806, 807, 809) ; Gloucester Perry Co. v. Pennsylvania, 114
U. S. 206, 29 L. Ed. 163, 5 Sup. Ct. 829, holding that privilege-of receiving
and landing passengers is incident of interstate commerce and States can-
not restrict it by tax; Sinnot v. Commissioners, 22 How. 243, 16 L.,Ed. 247,
denying right of State to require steamboats navigating State waters to
register before leaving port, such enrollment having been provided for by
act of Congress; Minot v. Railroad Co., 2 Abb. (U. S.) 341, Fed. Cas. 9646,
holding that a tax upon rolling stock involves a tax upon passengers and
freight carried, and is thus void as interfering with interstate commerce;
Pullman Co. v. Nolan, 22 Fed. 280, denying validity of tax upon Pullman
cars on same ground; American Fertilizing Co. v. Board of Agriculture,
43 Fed. 610, 612, denying validity of license tax enacted for privilege of
selling imported fertilizers; Lin Sing v. Washburn, 20 Cal. 571, holding
that law which prescribes conditions upon which Chinese can reside in
State is law restricting inmiigration and void; Wood v. Stockwell, 55 Me.
84, holding that where Congress has provided for r^istration of title of
enrolled vessels, act providing for recording of chattel mortgages is inoper-
ative as to such enrolled vessels ; State v. North, 27 Mo. 479, holding void
discriminatory law requiring merchants dealing in importations from other
States, to take out Ucense ; People v. Brooks, 4 Denio, 479, holding that stat-
ute taxing officers and crews of vessels engaged in coasting and foreign
trade, for support of marine hospital, was in conflict with commerce
power of Congress and so void; dissenting opinion in Walcott v. People,
17 Mich. 93, majority holing that act requiring express companies to pay
tax upon gross amount of business done within State was not repugnant
to commerce power of Congress; Crandall v. Nevada^ 6 Wall. 45, 47, 18
L. Ed. 747, 748, holding void law imposing upon railroads tax for each
passenger carried out of the State not because it was regulation of inter-
state commerce, but on ground that citizens of United States, as members
of same community, have right to pass and repass through any State and
such tax is restrictive of this right; Joseph v. Randolph, 71 Ala. 507, 46
Am. Rep. 351, denying validity of license tax exacted from persons engaged
in inducing laborers, by contract or otherwise, to leave State.
Following this reasoning also it has been uniformly held that States
cannot tax franchises granted by Federal government: California v. Rail-
road Co., 127 U. S. 41, 32 L. Ed. 158, 8 Sup. Ct. 1081; San Benito Co. v.
Railroad Co., 77 Cal. 521, 622, 19 Pac. 828, 829 ; San Francisco v. Tele-
graph Co., 96 Cal. 143, 144, 145, 147, 148, 152, 31 Pac. 11, 12, 14; also in dis-
senting opinion in People v. Railroad Co., 105 Cal. 598, 599, 38 Pao. 911,
912, where majority held that State could tax franchise given by it to
railway, such franchise not having become merged in ^Federal franchise
empowering company to extend its lines beyond State; N. P. R. R. Co. v.
Carland, 5 Mont. 175, 176, 188, 3 Pac. 149, 156, holding it competent for
Congress to include in grant of right of way^an exemption of such way
from taxation, and tax imposed by territory is invalid; dissenting opinion
\
927 Mcculloch v. state of Maryland. 4 wheat. 31^-437
in C. P. R. R. Co. v. California, 162 U. S. 128, 142, 143, 147, 148, 150,
40 L. Ed. 916, 920, 921, 922, 923. 16 Sup. Ct. 780, 785, 787, arguing that
subsidization of a railroad by Congress makes such railroad an instrument
of Federal government and so exempts from taxation by States; and
see dissenting opinion in Railroad Co. v. Peniston, 18 Wall. 48, 21 L. Ed.
797.
Likewise also the granting of patent rights is an exclusive power of
the Federal government, and any interference with it, by taxation or other-
wise, on the part of the State is unconstitutional and void : In re ShefiTield,
64 Fed. 835; Hollida v. Hunt, 70 111. 112, 113, 22 Am. Rep. 65 66; Common-
wealth V. Petty, 96 Ky. 458, 29 S. W. 293. In Commonwealth v. Westing-
house etc. Co., 151 Pa. St. 271, 24 Atl. 1109, the court went to the extent of
holding that capital of a corporation invested either in the assignment or
grant of a patent right, was not taxable by the State. Federal officers
also are so far considered to 'be instruments of the Federal government
that their salaries are exempt from taxation by the States under general
income tax laws, Dobbins v. Commissioners, 16 Pet. 449, 10 L. Ed. 1027.
And on this principle the Supreme Court annulled a State statute taxing
messages transmitted by a telegraph • company so far as it purported to
operate upon messages sent or received by the Federal government. Tele-
graph Co. V. Texas, 105 U. S. 466, 26 L.* Ed. 2068. Again, a Confederate
court held that an officer appointed by the Confederate Congress under the
revenue laws and actually engaged in the duties of his office was not sub-
ject to enrollment in the militia under a call from the Governor of a State,
Cobb V. Stallings, 34 Ga. 77. The dissenting opinion in Searight v. Stokes,
3 How. 178, 11 L. Ed. 550, distinguished the principal case upon this point
in arguing that a toll was not a tax and that United States mail coaches
were not exempt from payment, but the majority held otherwise, and de-
clared the act providing for collection of toll on State bridges void as
ox)erating on Federal agencies. Western Union etc. Co. v. New York, 38
Fed. 554, also distinguished the principal case in holding that in the exer-
cise of its police power, a State could compel a telegraph company to put
its wires under ground in cities of a certain size. The principal case is
also cited approvingly but without particular application to the point at
issue in dissenting opinion in West River Bridge Co. v. Dix, 6 How. 548,
12 L. Ed. 652, King v. Hunter, 65 N. C. 613, 6 Am. Rep. 758, and dissenting
opinion in People v. Dibble, 16 N. Y. 226.
Upon the principle that the Federal government is supreme within its
sphere other cases have denied the validity of various State laws: Haas v.
Misner, 1 Idaho, 173, holding void act of territorial legislature requiring
payment of taxes in gold or silver coin, Congress having provided that
treasury notes should be legal tender in payment of all debts; Globe Ins.
Co. v; Cleveland Ins. Co., 14 Bank. Reg. 311, 10 Fed. Cas. 491, denying
validity of assignment under State law while national bankruptcy law was
in force; In re Brinkman, 7 Bank. Reg. 424, 426, 4 Fed. Cas. 146, denying
jurisdiction of State court to administer estate of bankrupt; Wood v.
Drake, 70 Fed. 883, holding that action against United States marshal for
false imprisonment may be removed to Federal court, although complaint
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 928
is so worded as to conceal fact that defendant is Federal officer; United
States V. Cathcart, 1 Bond, 661, Fed. Cas. 14,756, holding that articles of
secession did not operate to release citizens of seceding States from their
obligations of loyalty to United States, and one joining in rebellion was
held liable to indictment for treason ; People ex rel. v. Assessors, 156 N. Y.
419, 420, 51 N. E. 270, denying power of State to tax patent rights. The
following cases cite the principal case approvingly in discussing generally
the subject of sovereignty : United States v. Texas, 143 U. S. 646, 36 L. Ed.
293, 12 Sup. Ct. 494, The Hiawatha, Blatchf . Pr. 12, Fed.. Cas. 6451, Haw-
kins V. Filkins, 24 Ark. 300, 301, dissenting opinion in Munn v. Illinois^ 69
111. 99. See also dissenting opinion in Ex parte Clarke, 100 U. S. 413,
25 L. Ed. 730.
Taxation and assessment of public property. Note, 33 Am. St. Bep.
401.
Exemption from taxation or assessment of lands owned by govern-
mental bodies or in which they have an interest. Note, 132 Am.
St. Bep. 299, 307.
Exemption of public property irom taxation. Note, 22 E. B. 0. 445.
Power of taxation may be exercised on objects to which it is applicable,
to utmost extent to which icovemment may choose to carry it; remedy for
abuse is political and not Judicial.
The proposition. of the syllabus has been applied in numerous instances
in various ways. Thus, it has been approved in Michigan etc. R. R. Co. v.
Powers, 201 U. S. 295, 50 L. Ed. 762, 26 Sup. Ct. 466, upholding Mich. Pub.
Acts 1901, No. 173, for taxation of railroads; United States v. Billings,
190 Fed. 363, upholding Tariff Act of 1909, chapter 6, section 37, imposing
annual tonnage duty upon use of every foreign-built yacht owned or char-
tered for more than six months by United States citizens; Lewis Pub. Co.
V. Wyman, 152 Fed. 798, holding Federal courts may review action of
postmaster-general in denying periodical publisher right to have same
mailed as second-class mail matter; Michigan R. R. Tax Cases, 138 Fed.
234, upholding Pub. Acts Mich. 1901, p. 236, relating to assessment of rail-
roads by State board of assessors ; Parks v. Board of Commrs., 61 Fed. 438,
upholding Kan. Acts 1887, ehapter 214, relative to improvement of roads
and assessment of expense; Parsons v. People, 32 Colo. 235, 76 Pac. 670,
upholding Sess. Laws 1902, pp. 47, 48, c. 3, § 18, taxing liquor sellers ;
Eddy v. People, 218 111. 616, 75 N. E. 1072, under Laws 1879, p. 72, §§ 2, 3,
board of trustees in passing on right of applicant to pension exercises
quasi-judicial po^er, and its finding, when made, cannot be reviewed, ex-
cept for want of authority to act or fraud; Washington Nat. Bank v.
Daily, 166 Ind. 639, 77 N. E. 55, upholding acts 1901, p. 109, c. 71, author-
izing order for inspection by county assessor of person's books to deter-
mine whether taxable property was omitted from returns; Kersey v. Terre
Haute, 161 Ind. 474, 68 N. E. 1029, upholding ordinance imposing tax on
vehicles using streets, though street-cars, automobiles and vehicles of non-
residents are exempt; Hodge v. Muscatine County, 121 Iowa, 489, 104
Am. St. Rep. 304, 67 L. R. A. 624, 96 N. W. 971, upholding Code, § 5007,
/
929 Mcculloch v. state of Maryland. 4 wheat, 316-437
imposing tax on vendor of cigarettes and on buildings used in their manu-
facture or sale; Wolfe County v. Beckett, 127 Ky. 256, 17 L. R. A. (N. S.)
688, 106 S. W. 447, holding taxable under Ky. Stats. 1903, §§4020, 4039,
oil and gas wells held under lease Testing ownership of oil and gas in
lessee ; Herrman v. Guttenberg, 62 N. J. L. 616, 43 Atl. 707, upholding bond
issue to pay outstanding bonds; People v. Ronner, 185 N. Y. 291, 77 N. E.
1063, upholding Laws 1905, p. 2059, c. 729, providing for taxation of real
estate mortgages; Pryor v. Bryan, 11 Okl. 363, 66 Pac. 350, upholding
act exempting for taxation all property on Indian reservation attached to
county for tax purposes, except for territorial and court funds; T. M.
McDamell & Son v. Memphis, 116 Tenn. 432, 95 S. W. 818, upholding tax
on logs belonging to domestic corporation, brought from another State,
and lying in millyard in State awaiting manufacture into lumber; Kim-
ball V. Grantsville City,, 19 Utah, 385, 45 L. R. A. 528, 57 Pac. 5, holding
courts cannot prevent execution of laws which abuse taxing power unless
Constitution is violated; Transit Co. v. Lynch, 18 Utah, 389, 55 Pac. 641,
upholding tax on cars owned by foreign corporations ; Harvey Coal & Coke
Co. V. Dillon, 59 W. Va. 607, 6 L. R. A. (N. S.) 628, 53 S. E. 929, holding,
under facts, sealed writing created lease, taxable to lessee under acts 1905,
p. 285, c. 360; dissenting opinion in G^mania Trust Co. v. San Francisco,
128 Cal. 601, 61 Pac. 182, majority holding where railroad running through
several counties was assessed at full value its bonds are not taxable; dis-
senting opinion in State v. Chicago etc. Ry. Cos., 128 Wis. 519, 108 N. W.
615, majority holding exactions by State from railroads during years pre-
ceding ad valorem 4ax law not taxes within uniform tax clause of Con-
stitution. And it has been held that amount of tax to be levied is
exclusively within discretion of the legislature: Spencer v. Merchant, 125
U. S. 355, 81 L. Ed. 767, 8 Sup. Ct. 926, Emery v. Gas Co., 28 Cal. 354,
New Orleans v. Duncan, 2 La. Ann. 186, 187, Bordelon v. Davis, 8 La. Ann.
472, People v. Pitch, 148 N. Y. 78, 42 N. E. 520, and Henry v; Chester,
15 Vt. 467. The basis of assessment and the manner in which the assess-
ment shall be made is also determinable by the legislature, or the munici-
pality to which it has granted the power of taxation: Van De Griff v.
Haynie, 28 Ark. 278, Daily v. Swope, 47 Miss. 380, 389, Porter v. Railroad
Co., 76 111. 573, King v. Portland, 2 Or. 154, and Winona etc. Ry. Co. v.
Watertown, 1 S. D. 56, 44 N. W. 1075. So also it is the function of the
legislative power to determine the objects on which the power is to be
exercised, and the purpose for which it is to be applied : Harrison v. Willis,
7 Heisk. 41, 45, 19 Am. Rep. 607, 610, Thompson v. State, 17 Tex. App. 267,
Cheney v. Jones, 14 Fla. 610, People v. Brooklyn, 4 N. Y. 426, 56 Am. Dec.
271, Guest V. Brooklyn, 69 N. Y. 616, State ex rel. v. Toledo, 48 Ohio St.
132, 26 N. E. 1066, Norfolk v. Chamberlain, 89 Va. 226, 227, 229, 230, 16
S. E. 739, 740, 741, Langhorne v. Robinson, 20 Gratt. 668, and dissenting
opinion in State v. Mann, 76 Wis. 497, 46 N. W. 56. The question as to
whether 4he legislature may levy a tax for the purpose of subsidizing a
quasi-public corporation has arisen in several cases which have affirmed
the power in denying the jurisdiction of the courts to consider the policy
I— 59 /
4: Wheat. 31M37 NOTES ON U. S. REPORTS. 930
of such a law : People v. Pacheco, 27 Cal. 224, S. & V. R. R. Co. v. Stock-
ton, 41 Cal. 166, Leavenworth v. Miller, 7 Kan. 519, 527, 12 Am. Bep. 449,
455,. Hallenbeck v. Hahn, 2 Neb. 414, Railroad Co. v. Commissioners, 1
Ohio St. 103, Sharpless v. Philadelphia, 21 Pa. St. 187, 59 Am. Doc. 773,
and dissenting opinions in Treadway v. Schnauber, 1 Dak. Ter. 267, 46
N. W. 475, and Hanson v. Vernon, 27 Iowa, 85. -In Pullan v. Kinsinger,
2 Abb. (U. S.) 112, Fed. Cas. 11,463, it was even asserted that in exer-
cising this power the legislature could provide that a tax authorized could
not be the subject of a suit in any court. The principle has also been
applied in holding that where the legislature has power under the Con-
stitution to lease a railroad, the courts cannot question the wisdom of its
act, Georgia v. Railroad Co., 66 Ga. 567. And in Dover v. Portsmouth
Bridge, 17 N. H. 227, it was held that where the legislature had authorized
the erection of a bridge across a navigable stream, it was not for the courts
to determine whether public convenience required such bridge. The rule
is also approved in State v. B. & 0. R. R. Co., 48 Md. 86, and Raton etc. Co.
v. Town of Raton, 49 Pac; 906, in discussing the general subject of exempt
tion from taxation.
Upon the principle that the power of taxation is a purely legislative
function, several cases have held that it cannot be delegated by the legis-
lature to any other body: Houghton v. Austin, 47 Cal. 654, State v. Des
Moines, 103 Iowa, 85, 64 Am. St. Rep. 163, 72 N. W. 642, and Pope v.
Phifer, 3 Heisk. 699. In Wells, Fai^o & Co. v. Board of Equalization, 56
Cal. 202, however, the court upheld the power of the legislature to so dele>
gate its authority, but held that the assessment in question was void for
other reasons.
The Ohio courts, while admitting that the power to tax is unlimited,
have denied the power of the legislature to yield it up entirely, and have
held that acts of one legislature exempting corporations froni taxation
could be jepealed by a subsequent legislature: De Bolt v. Insurance Co.^
1 Ohio St. 589, and Knqup v. Piqua Bank, 1 Ohio St. 610, 618. When
the latter case came before the Federal Supreme Court on appeal, bow-
ever, this was denied, and the act chartering a bank and exempting it from
taxation held to be a contract and not revocable l^y the legislature. In
two later cases the authority of the Supreme Court was recognized, but
Bartley, J., dissented in both, declaring that a "surrender of the essential
functions of the sovereign authority of the State" could not be made the
subject of contract; Matheny v. Golden, 5 Ohio St. 407, 434, Piqua Bank
V. Knoup, 6 Ohio St. 423. In other cases it ha^ been held that exemption
from taxation can never be presumed, and where bonds of the State were
not expressly exempted, a tax upon them wa9 valid: Champaign Bank v.
Smith, 7 Ohio St. 57 ; Trustees v. Ellis, 38 Ind. 5. See also dissenting
opinions in State Bank v. Knoop, 16 How. 398, 409, 14 L. Ed. 989, 994, and
Dodge V. Woolsey, 18 How. 376, 15 L. Ed. 420, the majority in both cases
holding that where a corporation is exempt from taxation by charter, the
courts will declare an act repealing such exemption void. To the same
effect is Farrington v. Tennessee, 95 U. S. 687, 688, 24 L. Ed. 560. In
People V. Roper, 35 N. Y. 634, however, the court held that where a statute
931 Mcculloch v. state op Maryland. 4 whi^at. 316-437
has, from motives of public policy, exempted a certain class from taxa-
tion, without any consideration^ the legislature may repeal it.
A number of cases distinguish the principal case upon this point, in'
holding it k> be within the power of the courts to determine whether the
tax in question is repugnant to the Constitution: Loan Assn. v. Topeka,
20 Wall. 663, 22 L. £d. 461, San Mateo County v. Railroad Co., 8 Sawy.
249, 13 Fed. 731, Beebe v. State, 6 Ind. 516, 63 Am. Dec. 404, Hanson v.
Vernon, 27 Iowa, 49, 1 Am. Rep. 230, Deal v. County, 107 Mo. 470, 18
S. W. 26, Chauvin v. Valiton, 8 Mont. 462, State v. Assessors, 48 N. J. L.
11, 57 Am. Rep. 524, 2 Atl. 795, McCulbugh v. Brown, 41 S. C. 250, 19
S. E. 473 (but see dissenting opinion, p. 262, 19 S. E. 478), MoRean v.
Chandler, 9 Heisk. 358, 24 Am. Rep. 312, Danville v. Sheldon, 76 Va. 328,
and dissenting opinion in Speer v. School Directors, 50 Pa. St. 177. In
the dissenting opinion in State v. Nemaha County, 7 Kan. 558, 560, it was
acknowledged that the courts could not inquire as to the excessiveness of
the levy, but that was the extent to which the rule in the principal case
was to be applied, and it was in the power of the judiciary to determine
whether the object of the tax was legitimate. There is authority also for
holding that where a city has extended its limits to embrace land used for
purely agricultural purposes, a city tax imposed upon such land by the
authority of the legislature, merely for the purpose of increasing the city
revenue, is void, as being in effect a taking of private property without
compensation: Morford v. Unger, 8 Iowa, 91, Buell v. Ball, 20 Iowa, 293,
and dissenting opinion in Kelly v. Pittsburg, 85 Pa. St 184. But in Linton
V. Athens, 53 Ga. 594, the court held that a person purchasing such lands-
after the extension of the city limits could not object to a city tax upon
the ground that he derived no benefit from it. The principal case is cited,
arguendo, upon this point in Pollock v. Farmers' Loan & Trust Co., 158
U. S. 621, 39 L. Ed. 1120, 15 Sup. Ct. 914, remarking that a safeguard
against abuse of the taxing power was to be found in the Federal con-
stitutional provision that direct taxation and representation in the lower
house of Congress should be adjusted upon the same measure. It is also
cited in the dissenting opinion in Pennsylvania v. Wheeling Bridge Co., 18
How. 445, 15 L. Ed. 443, to point "that the power to tax involves the power
to destroy," but the application is not apparent.
Taxation Is incident of sovereignty, and all subjects over which sovereign
power of State extends, are objects of its taxation.
Approved in Home Savings Bank v. City of Des Moines, 205 U. S. 517,
51 L. Ed. 909, 27 Sup. Ct. 571, holding invalid Iowa Code, § 1322, directing
that shares of stock of State banks shall be assessed to such banks, and
not to individual stockholders; Union etc. Transit Co. v. Kentucky^ 199
U. S. 205, 50 L. Ed. 154, 26 Sup. Ct. 36, tax of domestic corporation under
Ky. Stats., § 4020, on rolling stock located in other States, is void ; Louisville
etc., Ferry Co. v. Kentucky, 188 U. S. 396, 47 L. Ed. 518, 23 Sup. Ct. 467,
holding Indiana cannot tax Kentucky franchise to carry on ferry business
across Ohio river; Blackstone v. Miller, 188 U. S. 205, 47 L. Ed. 446, 23
Sup. Ct. 278, holding deposit in New York subject to New York transfer
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 932
tax though it was also subject to snceession tax of Illinois ; Davis v. Cleve-
land etc. Ry. Co., 146 Fed. 409, cars owned by railroad and delivered by
it to other company, loaded with freight to be used to transport such freight
to other States and then returned to owner, are not subject to* attachment
\ under laws of State into which they are carried ; Mackay v. San Francisco,
128 Cal. 683, 61 Pac. 383, holding bonds held by trustees under a will in
another State are pro rata taxable here if one of trustees resides in the
State; Buck v. Beach, 164 Ind. 41, 108 Am. St. Rep. 272, 71 N. E. 964,
where notes owned by nonresident were kept 'in State, they are taxable
there, though they are temporarily removed each year prior to assessment
day; Greenbaum v. Commonwealth, 147 Ky. 452, Ann. Oaa. 1913D, SS8,
144 S. W. 47, holding courts of Kentucky may render personal judgment
against nonresident for amount of tax assessed on whisky stored in ware-
house, personal service having been obtained ; General Electric Co. v. Board
of Assessors, 121 La. 122, 46 South. 124, holding debts due on open account
to nonresident, arising out of business carried on in taxing State, are tax-
able at debtor's domicile; Allen v. National Bank, 92 Md. 512, 48 Atl. 79,
52 L. B. A. 760, upholding Acts 1896, chapter 120, imposing tax on interest
payable on mortgages held by residents and nonresidents, and fixing sites
in county where land located; In re Rogers Estate, 149 Mich. 307, 119
Am. St. Eep. 677, 11 L. B. A. (N. S.) 1134, 112 N. W. 932, holding mort-
gages, notes and land contracts representing land situated in one State
owned by nonresident, are subject to inheritance tax by former State;
State V. Fidelity etc. Co., 35 Tex. Civ. 217, 80 S. W. 546, municipal secu-
-rities deposited with State treasurer by foreign corporation in accordance
with laws relating to foreign surety companies are taxable in State; Chi-
cago, St. P. M. & 0. Ry. Co. V. Douglas County, 134 Wis. 208, 14 L. R. A.
(N. S.) 1074, 114 N. W. 615, holding lands granted by Congress to State
to aid construction of railway, and granted by State to railway, are subject
to taxation in hands of successor of company ; Noble v. Amorette, 11 Wyo.
251, 71 Pac. 881, State tax on stock of goods of licensed Indian trader,
located on reservation, is not tax on agency of government; dissenting
opinion in Pullman Co. v. State of Kansas, 216 U. S. 76, 54^ L. Ed. 390,
30 Sup. Ct. 232, majority holding that foreign sleeping-car company can-
not be restrained from doing business in State because of refusal to pay
"charter fee" imposed in Kan. Gen. Stats. 1901, p. 280; Downes v. Bidwell,
182 U. S. 354, 46 L. Ed. 1132, 21 Sup. Ct. 813, ai^endo.
The rule has also been cited in numerous cases as a test in determining
the validity of various State laws on the subject of taxation. In some of
these cases it 'was argued that railroads subsidized and employed by the
Federal government, constituted instruments of that government, and as
such .were exempt from taxation by the States. But the courts, drawing
a distinction between instruments, or agencies, and mere agents, held such
railroads to be the latter, and so taxable by the States for so much of their
property as lay within the territory of the States: Thompson v. Pacific
R. R. Co., 9 Wall. 588, 589, 590, 19 L. Ed. 797, 798, Railroad Co. v. Penis-
ton, 18 Wall. 34, 35, 21 L. Ed. 792, 793, Central Pacific R. R. Co. v. Cali-
fornia, 162 U. S. 121, 125, 40 L. Ed. 913, 914, 16 Sup. Ct. 777, 778, Union
933 Mcculloch v. state of Maryland. 4 wheat. 316-437
Pacific R. R. Co. v. Lincoln Co., 1 Dill. 320, 321, Fed. Cas. 14,378, People v.
Central Pacific R. R. Co., 43 Cal. 426, 427, 428, 429, Central Pacific R. R.
Co. V. Board of Equalization, 60 Cal. 61, 62 (but see dissenting opinion in
Railroad Co. v. Peniston, 18 Wall. 38, 43„ 45, 21 L. Ed, 794, 796, 797,
ai^uing contra). The fact that a railroad is engaged in interstate com-
merce and extends its lines beyond the limits of the State does not exempt
it JErom taxation by the State* And in assessing such company the State
may adopt as a basis the gross receipts or gross tonnage carried within
the State or the value of property owned by the company within the Stat^ ;
State V. Baltimore & 0. R. R. Co., 34 Md. 372, State v. Philadelphia etc.
B. R. Co., 45 Md. 378, 24 Am. Rep. 513, Board of Assessors v. Railroad Co.,
48 N. J. L. 146, 4 Atl. 578, reversing 48 N. J. L. 11, 57 Am. Rep. 524, 2 Atl.
795, Tonnage Tax Cases, 62 Pa. St. 292, 294, 298, 1 Am. Rep. 403, 406, 410
(see, however, dissenting opinion in State v. Railroad Co., 30 N. J. L. 492).
Express companies doing an interstate business are likewise taxable:
Adams Express Co. v. Ohio, 165 U» S. 194, 41 L. Ed. 683, 17 Sup. Ct. 305
(dissenting opinion, however, citing principal case in declaring tax void
as interfering with interstate commerce, p. 230, 41 L. Ed. 698, 17 Sup. Ct.
312), Osbom v. Mobile, 44 Ala. 499, Southern Express Co. v. Hood, 15
Rich. 75, 82, 94 Am. Dec. 141, 147. Pullman and refrigerator, cars, also,
which are used on lines extending through two or more States, have been
held to have a situs in each State, and to be subject to taxation on a fair
proportion of their value: Pullman Co. v. Twombley, 29 Fed. 663, 664,
Carlisle v. Pullman Co., 8 Colo. 327, 7 Pac. 168, Union Refrigerator etc.
Co. V. Lynch, 55 Pac. 641. Telegraph companies are also held to })e within
this rule: Western Union Telegraph Co. v. Mayer, 28 Ohio St. 533. And
a State case has asserted the authority of the State to tax a toll-bridge
erected by authority of Congress: Louisville Bridge Co. v. Louisville, 81
Ky. 196. In Ex parte Crandall, 1 Nev. 304, the State court held valid, a
law exacting a capitation tax from railroad and stage companies for each
passenger carried out of the State, declaring that such a tax did not con-
flict with the commerce power of Congress. This decision was, however,
reversed in Crandall v. Nevada, 6 Wall. 45, 47, 18 L. Ed. 747, 748, upon the
ground that the tax operated as a restriction upon the right of citizens
of other States to pass through that State.
Similar cases are those which hold that as part of the property of a
steamboat company, a State may tax steamboats plying between different
States: Battle v. Mobile, 9 Ala. 237, 44 Am. Dec. 439, New Orleans v.
Eclipse etc. Co., 33 La. Ann. 648, 39 Am. Bep. 280, Perry v. Torrence, 8
Ohio, 524, 32 Am. Dec. 728, HoweU v. State, 3 Gill, 21, 23, 26, 29. And.
the Supreme Court has held this to be true, although such vessels arc
licensed and enrolled under United States laws: Transportation Co. v.
Wheeling, 99 U. S. 279, 281, 283, 25 L. Ed. 414, 415. Where, however,
the company has its place of business in another State, where the boats are
also taxed, a State wherein such boats are simply registered cannot tax
them as property: St. Louis Ferry Co., 11 Wall. 429, 20 L. Ed. 194; and
see dissenting opinion in Commonwealth v. Ferry Co., 98 Pa. St. 121. And
while the States may so tax steamboats, they cannot do so at a rate per
4 Wheat. 316-437 KOTES ON U. S. REPORTS. 934
ton, in violation of the constitutional prohibition against laying a tonnage
duty : State Tonnage Tax Cases, 12 Wall. 224, 20 L. Ed. 377.
The question, as to whether a license tax which operates upon goods
which have been imported into the States is void as being a reg^ation
of commerce or a duty upon imports, has frequently arisen. Such laws
have been held valid upon the ground that when importations become incor-
porated into the mass of other property within a State they become sub-
ject to the State's unlimited power of taxation. So a tax upon liquor
sold is not necessarily a tax upon liquor imported: License Cases, 5 How.
593, 619, 12 L. Ed. 296, 308, State v. Wheeler, 25 Conn. 294, State v.
AUmond, 2 Houst. 635, Santo v. State, 2 Iowa, 199, 63 Am. Dec. 498,
Anderson v. Brewster, 44 Ohio St. 581, 9 N. E. 686. It was even held in
Davis v. Dashiell, Phil. {H. C.> 116, that such a tax was valid, although it
discriminated against imported liquors by taxing them at a higher rate,
but the correctness of this decision is doubtful, as the Supreme Court
in Ward v. Maryland, 12 Wall. 427, 20 L. Ed. 451, has established the
rule that the validity of such laws is conditioned upon their uniform,
operation. See, also upon this point, Nashville etc. Ry. Co. v. Taylor, 86
Fed. 186, 187, State v. Pennoyer, 65 N. H. 117, 18 Atl. 881. Upon this
principle, a State may impose a tax upon drummers, and such a tax will
operate, although it may in certain cases affect drummers dealing solely
in imported goods ; Padelf ord v. Savannah, ,14 Ga. 484, 496, 501, Ex parte
Robinson, 12 Nev. 275, 28 Am. Bep. 802, Wynne v. Wright, 1 Dev. & B.
21; and see dissenting opinion, Atkins v. Randolph, 31 Vt. 246. The dis-
senting opinion in State v. Cumberland etc. R. R. Co., 40 Md. 60, cites the
principal case in arguing that a State could impose a tax upon xoai trans-
ported from mines to points within the State or elsewhere for sale. The
majority, however, held such a tax to be a restriction upon interstate
commerce, and, therefore, void.
Although, as was noted under another head, the courts have established
the rule that national bank shares are not taxable by the States in absence
of congressional authorization, there is authority for holding such shares
to be distinguishable from the capital stock of the bank proper, and taxable
in the hands of individual holders; National Bank v. Commonwealth, 9
Wall. 361, 19 L. Ed. 703, National Commercial Bank v. Mobile, 62 Ala.
291, 34 Am. Rep. 17, Bemey v. Tax Collector, 2 Bail. 683, 684, 685, 686, 687,
688, Charleston v. Weston, Harp. (S. C.) 343, 349 (reversed on appeal by
Supreme Court, but see dissenting opinion, 2 Pet. 473, 479, 7 L. Ed. 490,
491). Other cases have held that while Federal securities are not taxable
•as such by the States, deposits in a bank which are invested in such secur-
ities are taxable as any other projicrty provided they are not discrim-
inated against; Society for Savings v. Coite, 6 Wall. 605, 18 L. Ed. 902,
People V. Commissioners, 23 N. Y. 203, 205, People v. Bradley, 39 111. 133,
134. The real property of national banks is expressly declared in the
principal case, to be subject to State taxation, and the validity of such a
tax was sustained in State v. First National Bank, 4 Nev. 351.
Other authorities in applying the doctrine here under consideration have
held that bonds of a foreign corporation are taxable in the hands of per-
935 Mcculloch v. state of Maryland. 4 wheat. 3ie-437
sons resident in the taxing State ; State v. Bentley, 23 N. J. L. 542, McKeen
V. County of Northampton, 49 Pa. St. 524, 88 Am. Dec. 516, Webb v. Bur-
lington, 28 Vt. 192. And this is true, although the corporation is exempt
from taxation in the State where it was created. Appeal Tax Court v.
Paterson, 50 Md. 369, State v. Branin, 23 N. J. L. 495, 507. On the other
hand, a South Carolina case is authority for holding that dividends re-
ceived by stockholders in a corporation are not taxable by a State which
has exempted the corporation itself from taxation: State v. Charleston,
5 Rich. 570, 571, 574, 575. Bonds issued by a State or by a State corpora-
tion are not taxable by the State in the hands of nonresidents, according
to State V. Ross, 23 N. J. L. 521, Singer etc. Co. v. Heppenheimer, 58
N. J. L. 639, 34 Atl. 1063. To the same effect is the dissenting opinion of
Field, J., in United States v. Erie Ry. Co., 106 U. S. 334, 27 L. Ed. 155,
1 Sup. Ct. 231, arguing that bonds issued by a railway company are not
taxable in the hands of nonresident aliens. Credits, generally, are held to
have a situs for taxation in the State where the creditor resides, and are
taxable there, although the debt is secured by mortgage on property else-
where: Kirtland v. Hotchkiss, 100 U. S. 497, 25 L. Ed. 561, Mackay v. San
Francisco, 113 Cal. 399, 45 Pac. 698, Redmond v. Commissioners, 106 N. C.
126, 10 S. E. 846, Catlin v. Hull, 21 Vt. 160. The Supreme Court, in
Nevada Bank v. Sedgwick, 104 U. S. Ill, 26 L. Ed. 704, affirmed the power
of a State to tax the capital of a bank chartered by it, although part of
such capital is invested in foreign countries. To the same effect is Faxton
V. McCosh, 12 Iowa, 631. And a State may tax mortgages, irrespective of
the residence of the mortgagees : Savings Society v. Multnomah County, 169
U. S. 427, 42 L. Ed. 805, 18 Sup. Ct. 394, Mumford v. Sewall, 11 Or. 68,
50 Am. Rep. 463, 4 Pac. 586.
Several cases assert the right of the States to impose license taxes upon
occupations, Jones v. Page, 44 Ala. 658, Young v. Thomas, 17 Fla. 171, 36
Am. Rep. 94, Langville v. People, 4 Tex. App. 324, Ould v. Richmond, 23
Gratt. 467, 14 Am. Rep. 140. In Ex parte Williams, 31 Tex. Cr. 272, 20
S. W. 581, it was argued that such a tax was inoperative as applied to
lawyers, on the ground that they were State officers, and the State would
thus be imposing a tax upon its instruments, but the court held otherwise.
A North Carolina case has held that the tax applied to persons licensed
under the laws of the United States, denying the contention that a Federal
license rendered the licensee a Federal officer; State v. Bell, Phil. (N. C.)
85,90.
As an incident of this unlimited power of taxation, several cases have
affirmed the power of the States to provide for summary process to collect
taxes in case of default in payment: Gibson v. Mason, 5 Nev. 306, Rhine-
hart V. Schuyler, 2 6ilm. 507. Or to provide that taxes due the State shall
constitute a lien upon all the property of the debtor: Doe v, Gledney, 8
Ga. 482. Or to provide for the disfranchisement of delinquents : Frieszle-
ben V. Shallcross, 9 Houst. (Del.) 98, 19 Atl. 592. And in State v. Central
Pacific R. R. Co., 21 Nev. 264, 30 Pac, 690, the court went to the extent of
holding valid a law providing that a former recovery should not con-
stitute a defense to an action to recover taxes.
4 Wheat. 316-437 NOTES ON U. S. REPORTS* 936
The remaining cases under this head are of a miscellaneous nature, and
cite the principal case in afiGLrming and denying the validity of various State
laws : Providence Bank v. Billings, 4 Pet. 563, 7 L. Ed. 956, and Macon v.
Bank, 60 Ga. 137, holding that a bank chartered by a State is subject to
taxation by the State, unless expressly exempted; Henderson Bridge Co.
V. Henderson City, 173 U. i S. 622, 43 L. Ed. 834, holding State power to •
tax a bridge was not affected by the fact that the building of the bridge
was authorized by Congress; Forbes v. Gracey, 9 .Fed. Cas. 404, holding
that the States may tax ore taken from mines, although such mines arc
on United States lands; People v. Naglee, d Cal. 236, 52 Am. Dec. 316, is
to the same effect; In re Strawbridge, 39 Ala. 387, 388, 390, holding that
an act exempting agriculturists from military service in the Confederate
States, did not restrict the right of the States to subject such person to
service in the militia ; Kello^ v. Union Co., 12 Conn. 25, asserting the power
of a State to grant to a private corporation the right to tako tolls from
persons passing up and down a navigable river within its territory; Ander-
son V. Van Brocklin, 15 Lea, 36, holding land acquired by United States at
tax sale, not to be exempt from taxation, ^grhere such land is not used
for government purposes; North Missouri etc. R. R. Co. v. Maguire, 49
Mo. 500, 8 Am. Rep. 146, holding valid, , a law providing that a tax levied
upon the gross earnings of a railroad company should be applied upon the
indebtedness due the company on bonds issued , by the State; People v.
Equitable Trust Co., 96 N. Y. 394, holding that franchise taxes levied by a
State must be confined to corporations created by it; Pullen v. Commis-
sioners, 66 N. C. 362, sustaining the validity of a tax upon legacies and
collateral descents; Commonwealth v. Standard Oil Co., 101 Pa. St. 145,
holding that the purcliase in Pennsylvania of crude petroleum by an Ohio
corporation^ did not constitute ''doing business," within the meaning of a
statute requiring payment of a business license ; Ex parte Hunter, 2 W. Va.
152,. holding that a State may. require lawyers to take an oath to support
the Constitution before being allowed to practice.
The principal case is cited approvingly upon this point, in the following
oases, which, .however, give the rule no particular application: East Sag-
inaw etc. Co. V. East Saginaw, 19 Mich. 280, 2 Am. Rep. 90, dissenting
opinion in Savings Bank v. Nashua, 46 N. H. 404, Northern Pacific R. R.
Co. V. Barnes, 2 N. D. 322, 329, 51 N. W. 387, 389, Mills v. Charleton, 29
Wis. 412, 417, 9 Am. Rep. 585, 589, Macon v. Patty, 57 Miss. 388, 34 Am.
Rep. 456.
Subjects over wMch sovereign power of State does not extend are exempt
from taxation.
Approved in Farmers & Mechanics' Savings Bank v. State of Minnesota,
232 U. S.-522, 58 L. Ed. 710, 34 Sup. Ct. 354, holding, however, that State
cannot tax bonds of municipalities in Indian territory and Oklahoma terri-
tory; Copp V. State, 69 W. Va. 443, 85 L. R. A. (N. S.) 669, 71 S. E. 581,
holding land once owned by United States for governmental purposes and
sold to private persons, title being retained to secure purchase price, may
not be taxed by State so long as lien in favor of United States remains
unsatisfied.
937 Mcculloch v. state of Maryland. 4 wheat. 316-437
Distinguished in Ex parte White, 228 Fed. 91, holding officer of coast
artillery branch of army, stationed at Fort Stark, but who maintained
apartment in Portsmouth, by special military authorization, was not sub-
ject to Laws N. H. 1913, c. 82, § 1, providing for poll tax; State v. Wiggins
Ferry Co., 208 Mo. 647, 106 S. W. 10J2, holding, under facts, ferry company
operated in connection with railroad was taxable in State where railroad
was.
Taxation of capital stock and shares. Note, 32 Am. Rep. 638.
Tax on capital stock of corporations. Note, 68 L. B. A. 652.
Taxation of franchises. Note, 181 Am. St Bep. 883.
Taxation of corporate franchises. Note, 67 L. B. A. 34, 36, 56, 66.
Corporate taxation and the commerce clause. Note, 60 L. B. A. 649.-
Validity of tax on occupation of attorney. Note, Ann. Gas. 1912A«
601.
Sovereignty of State extends to everytUng that exists by its own author-
ity or is introduced by its permission.
That the States are supreme within their respective spheres is a principle
deducible from the rule thus stated in the principal case. As has .been
noted, the instruments of the Federal government are exempt from control
by the States, so by a parity of reasoning, a number of cases have declared
that the Federal government can exercise no control over the means adopted
by the States to carry into effect their sovereign power. Thus* it has been
held that Congress cannot tax the process of state coi^ts requiring such
process to be stamped to insure its validity: Smith v. Snort, 40 Ala. 388;
Fifield V. Close, 15 Mich. 508, Union Bank v. Hill, 3 Cold. 335, Jones v.
Keep, 19 Wis. 374, 375. Nor can Congress provide rules of evidence for
State courts. Upon "this ground the courts have held that an internal
revenue act of Congress, requiring notes and mortgages and other evidences
of debt to be stamped before being admitted as evidence, was inoperative
as to State courts: Bumpass v. Taggart, 26 Ark. 402, 7. Am. Bep. 625,
Latham v. Smith, 45 111. 30, Craig v. Dimock, 47 111. 314. Likewise official
bonds given to a State by its officers cannot be avoided because not stamped
as provided by such act of Congress: State v. Garton, 32 Ind. 4, 5, 2 Am.
Bep. 318. To the same effect is Davis v. Richardson, 45 Miss. 503, 7 Am.
Bep. 734, where the court in denying that failure to affix a revenue stamp
rendered an instrument void, nevertheless admitted that such failure ren-
dered the person a'menable to the penalty provided by Congress. In the
dissenting opinion in Jones v. Keep, 19 Wis. 381, 386, it was argued that an
act requiring process to be stamped did not impair such process, and there
could be no objection to it by the States. And following the same reason-
ing, Muscatine v. Sterneman, 30 Iowa, 529, 530, 6 Am. Bep. 687, affirmed
a decision refusing to admit an official bond as evidence, because not
stamped. It has been held also that an internal revenue, tax cannot operate
upon mortgages held by a city as security for a debt due from a railroad
company: United States v. Baltimore & O. R. Co., 24 Fed. Cas. 979. To
the same effect also is United States v. Railroad Co., 17 Wall. 322, 21 L. Ed*
4 Wheat. 316-^37 NOTES ON U. S. REPORTS. • 938
597, although Clifford ajad Miller^ JJ., diseenting, cited . McCuJloch v. Mary-
land in arguing Qontra, 17 Wall. 334, 21 L. IQd. 602. The di^ssenting opinion
in Veazie Bank v. Fenno, 8 Wall. 551, 19 L. £d. 488, ^rgue^ in favor
of this rule, but the majority held that under its power to regulate the
currency, Congress could impose a tax upon 4;he notes of a State bank,
even, though such tax were prohibitive and operated to drive the notes out
of circulation. Upon the same principle the United States courts have
denied the right of Congress to impose a tax upon the salary of a State
judicial officer: Collector v. Day, ^ 11 Wall. 123, 127, 20 L. Ed. 125, 127,
Day v. Buffinton, 3 Cliff. 387, 388', 392, 394, Fed. Cas. 3675; see also dis-
senting opinion in Pollock v. Trust Co., 158 U. S. 693, 89 L. Ed. 1146. 15
Sup. Ct. 942. The principal case is distinguished upon this point, how-
ever, in Manhattan Co. v. Blake> 148 U. S. 426, 37 L. Ed. 509, 13 Sup. Ct.
645, where it was held that a tax by Congress upon the deposits in a bank
was not void, .because such deposits consisted, in part, of State funds,
for the safekeeping of which the bank was paid by the State.
The rule has received a still wider application in tho^ eases which deny
the power of the legislature, or municipalities to which it has gftiinted the
)K>wer of taxation, to impair the instruments of the State. So in Com-
monwealth V. Mann, 5 Watts & S. 417, it was held that where the State
Constitution provided that the' salalry of a judge should not be reduced
during his term, the legislature could not tax it as income. To the same
effect also is New Orleans v. Lea, 14 La. Ann. 194. And in Newark Bank
v. Assessor, 30 N. J. L. 17, it was denied that State bonds were taxable by
a city in the hands of an individual. - In a Louisiana case also it was held
that municipal bonds were not taxable by the* State, but the dissenting
opinion citing the principal case on the point that taxation is an incident
of State sovereignty, argued that as the State Constitution did not exempt
such bonds from taxation, the tax was .vklid: State v. Assessors, 35 Ija.
Ann. 660, 665. Again in Egerton v. New Orleans, 1 La. Ann. 436, it was
held that taxes collected by a city, for certain purposes were not subject
to execution on* a judgment rendered against the city. The principal case
is distinguished upon this point in two cases. In New Orleans ;v. Insurance
Co., 23 La. Ann. 62, the court •declared that bonds issued by a oorporation
and owned by a city did not constitute part of the city franchise, and
were not essential to the exercise of its functions, so a judgment cjreditor
of the city could seize such bonds on execution. In Burton v. State, 3
Gill, 8, a bank chartered by the State was held not to be exempt from a
State law requiring evidences of indebtedness to be staihped.
Uxx)n the principle that a State is sovereign within its sphere, the Cir-
cuit Court in United States v. New Bedford Bridge, 1 Wood. & M. 435,
455, 503, Fed. Cas. 15,867, denied its jurisdiction to entertain an indict-
ment for obstructing a navigable river by a bridge authorized by the State.
Congress not having prohibited such obstructions, the court held it to be
within the power of the State to authorize the erection of a. bridge over
waters within its borders. The principle is also approved in State v.
Gibson, 36 Ind. 400, 10 Am. Rep. 51, in discussing the subject of sover-
eignty generally. It is also approved in Bristol v. Washington Countyi 177
939 Mcculloch v. state of Maryland. 4 wheat. 316-437
U. S. 146, 44 L. Ed. 707, 20 Sup. Ct. 590, holding personal property of
resident, invested in mortgages and bonds in another State, is taxable in
latter State; Bonbriglit v. Schoettler, 127 Fed. 324, holding under Penn-
sylvania firenescape act of 1879, official certificate of approval, properly
issued, is conclusive evidence of compliance with act and protects owner
from liability thereunder for either penalty or idamages; Fort Smith v.
Scrug^, 70 Ark. 555, 91 Am. St. Bep. 103, 68 L. B. A. 921, 69 S. W. 681,
upholding tax for privilege of keeping and using wheeled vehicles; Corry
V. Baltimore City, 96 Md. 322, 53 Atl. 943, upholding Md. Code, art. 81,
§§ 141, 144, relating to taxation of stock of Maryland owned by nonresi-
dents ; Southern Ins. Co. v. Estes, 106 Tenn. 480, 52 L. R. A. 915, 62 S. W.
153, holding war revenue act providing that certain unstamped instruments
are inadmissible in evidence does not apply to State courts.
State has command of all Its resources, but powers conf eired by people of
United States on government of Union are beyond Its reach.
Approved in St. Louis etc. R. Co. v. Allen, 181 Fed. 716, holding invalid
Rule 44 of Arkansas Railroad Commission, as applied to interstate ship-
ments.
(Government of Union and of State are each sovereign with . respect to
objects committed to It.
Approved in Louisville etc. R. Co. v. Hughes, 201 Fed. 735, holding Act
Ohio May 20, 1910, providing for inspection and equipment of locomotive
boilers, was superseded by Act Con. Feb. 11, 1911, c. 103, 36 Stat; 913, as
applied to interstate railway; Frantz v. Autry, 18 Okl. 612, 91 Pac. 210,
holding court of equity cannot enjoin constitutional convention from exer-
cising powers conferred on it by Congress or people.
Word ''necessary" admits of dtflPerent degrees of urgency.
Approved in In re New Haven Water Co., 86 Conn. 369, 85 Atl. 639,
applving rule to condemnation by corporation for water rights; Brooks v.
Chicago etc. Coal Co., 234 HI. 379, 84 N. E. 1031, holding proof sustained
allegation, in declaration in action for injuries, that certain act was ■* ' neces-
sary"; Chicago etc. Ry. Co. v. Baugh, 175 Ind. 426, 94 N. E. 573, applying
principle to condemnation by railroad of ground for stock -pens; Rexroth
V. HoUoway, 45 Ind. App. 37, 38, 90 N. E. 87, 88, holding hiring of horse by
traveling salesman with which to reach another town a ** necessary" inci-
dent to employer's business, rendering latter liable for negligent injury to
horse ; State v. Chicago etc. R. Co., 239 Mo. 213, 143 S. W. 787, construing
Rev. Stats. 1899, § 2240, prohibiting labor on Sunday, excepting works of
necessity; Killeen v. Barnes-King Development Co., 46 Mont. 224, 127 Pac.
94, construing instruction, in personal injury action, that it was ''neces-
sary" for plaintiff to do his work in particular manner; State v. Marron,
17 N. M. 320, 128 Pac. 491, holding legislature may determine "necessary"
appropriations for educational institutions established by existing law;
State V. Young, 74 Or. 406, 145 Pac. 650, construing ** necessary repairs"
under Laws 1913, p. 169, § 2, relating to hours of employment in factoiies.
1
4 Wheat. 316-437 NOTES ON U. S. REPORTS. 940
Nature of Oonstitntion reqnirefl that only its great oatUnes should l>e
marked and its important objects desiimated.
Approved in Wallace v. Hughes, 131 Ky. 483, 115 S. W. 695, construing
Cumberland Presbyterian Constitution, §§ 25, 43 and 60; Hayes v. Mannings,
263 Mo. 35, 172 S. W. 903, construing Constitution of Cumberland Pres-
byterian Church; In re Peterson's Estate, 22 N. D. 513, 134 N. W. 766,
holding right to appeal in probate matteii from County Court includes right
to grant trial de novo in District V^ourt ; dissenting opinion in Rouse v.
Thompson, 228 111. 560, 81 N. E. 1122, majority holding invalid primary-
election law July 1, 190iS.
Effect of statutes making pre-existing contracts illegal. Note, 120
Am. St. Rep. 470.
Miscellaneous. Cited in Harris v. Cosby, 173 Ala. 100, 55 South. 236,
holding that under constitution of Cumberland Presbyterian Church, Gen-
eral Assembly, with consent of Presbyteries, had power to determine that
union with Presbyterian church of United States of America had been
effectuated, notwithstanding constitution was regarded as grant rather
than limitation of power; dissenting opinion in Lochner v. New York, 198
U. S. 68, 49 L. Ed. 946, 25 Sup. Ct. 539, majority holding void N. Y. Laws
1897, V. 4l5, art. VIII, § 110, limiting hours of labor in bakeries ; dissenting
opinion in McLendon v. State, V9 Ala. 72, Ann. 'Gas. 1915C, 691, 60 South.
398, majority holding invalid Revenue Law 1911, p. 181, § 33Vi, exempting
ex-Confederate soldiers from occupation tax therein provided; United
States V. Arredondo, 6 Pet. 729, 8 L. £d. 561, as authority for holding
that the legislative and judicial departments of government are supreme
within their respective spheres, and in this it has been followed by sev-
eral cases : Sabariego v. Maverick, 124 U. S. 282, 31 L. Ed. 439, 8 Sup. Ct.
472; United States v. California Land Co., 148 U. S. 44, 37 L. Ed. 860,
13 Sup. Ct. 463 ; Baring v. Erdman,^ Fed. Cas. 790 ; Ryder v. Innerarity,
4 Stew. & P. 30 ; State ex rel. v. Porter, 1 Ala. 704 ; Borden v. State, 11
Ark. 548, 54 Am. Dec. 238; Salisbury Assn. v. County, 86 Md. 622, 39 Atl.
427. In Fertilizing Co. v. Hyde Park, 97 U. S. 666, 24 L. Ed. 1038, the
principal case is cited upon the point that if the legislature may tax 'a cor-
poration, it may also, in the exercise of its police power, abolish it, if it
has become a nuisance. Pollock v. Farmers' Loan & Trust Co., 158 U. S.
617, 39 L. Ed. 1119, 15 Sup. Ct. 913, cites it as an instance where the
Supreme Court exercised its power to construe. the Federal Constitution.
Campbell, J., in Swan v. Williams, 2 Mich, 434, quotes the statement that
"the power of creating a corporation is never used for its own sake, but
for the purpose of effecting something else," in holding a railroad being a
quasi-public corporation may have land condemned to it under the power
of eminent domain. In McClanahan v. Western Asylum, 88 Va. 469, 13
S. E. 978, the principal case is made authority for holding that a suit
by or against a national bank is not a suit by or against the United States,
and hence the maxiln "nullum tempus occurrit regni," can have no applica-
tion to such actions. Two cases cite it as an instance where the Supreme
Court exercised its power to determine the constitutionality of a State
941 THE GENERAL SMITH. 4 Wheat. 438-444
law : State Lottery Co. v. Fitzpatrick, 3 Woods, 264, Fed. Cas. 8541 , Baily
V. Gentry, 1 Mo. 168, 13 Am. Dec. 487. And Worcester v. Georgia, 6 Pet.
537, 565, 8 L. Ed. 492, 503, as an instance of practice in a qui tarn action.
Edwards v. Kearzey, 96 U. S. 602, 24 L. £d. 797, quoting the statement
that "the power to tax is the power to destroy," held, that the power to
modify, at discretion, the remedy for the enforcement of a contract is also
the power to destroy that remedy, and denied the right of a State legisla-
ture to exempt property from execution to such an extent as to destroy
the remedy; see, also, Long* v. Walker, 105 N. C. 98, 10 S. E. 860, on the
same point. And Nohle v. Cullom, 44 Ala. 564, upon the principle that the
"people of the United States constitute one nation and 'did not design
to make the national government dependent upon the States,'' held that
a judgment recovered in a State under the articles of secession was not
enforceable after reconstruction. The principal ease has been erroneously
cited in the following cases: Bailey v. Railroad Co., 4 Harr. (Del.) 401,
44 Am. Dec. 608; Western etc. R. R. Co. v. Georgia, 54 Ga. 431; Demoss
v. Noble, 6 Iowa, 533 ; Danks v. Quackenbush, 1 N. Y. 132 ; Bissell v. Hunt-
ington, 2 N. H. 145.
4 Wheat. 438-444, 4 L. Ed. 609, THE GENERAL SMITH.
Admiralty has Jurisdiction to enforce lien for repairs or necessities fur-
nished at Instance of master of vessel in foreign port.
Approved in The Roanoke, 189 U. S. 193, 23 Sup. Ct. 492, 47 L. Ed. 772,
holding 2 Ball. Code, §§ 5953, 5954 (Wash.), void as an attempt to control
administration of maritime law; Aurora Shipping Co. v. Boyce, 191 Fed. 966,
112 C. C. A. 372, upholding B. and C. Comp. Or., § 5706, creating lien on
vessel for damages for death of person resulting from tortious injury
within Oregon; In re Alaska Fishing & Development Co., 167 Fed. 879,
holding, when fishing company placed season's catch on barge having no
motive power, in Alaska port, owner of tug who tows barge to Tacoma,
with master's consent, but without express contract, has maritime lien
on barge and cargo; The Wyandotte, 136 Fed. 473, where purchaser of
draft drawn by master in foreign port for advances to pay chaises had no
knowledge of master's possession of freight drafts, fact that charter pro-
vided that advancements were payable out of freight only is no defense to
draft; The Underwriter, 119 Fed. 715, holding that under charter party
providing that charterer shall pay for all fuel, master cannot bind vessel
for such supplies; Morris v. Bartlett, 108 Fed. 677, holding no personal
liability ekists where repairs were not made at instance of master; dis-
senting opinion in Thomas v. Osborn, 19 How. 38, 15 L. Ed. 541, majority
refusing to enforce lien, and distinguishing principal case on this point;
The Belfast, 7 Wall. 643,*646, 19 L. Ed. 272, denying jurisdiction of State
court to enforce lien arising from contract of affreightment; The Grape-
shot, 9 Wall. 136, 19 L. Ed. 654, holding ordering of supplies by master
on credit of vessel to be sufiBcient proof of necessity to support implied
hypothecation in favor of materialmen acting in good faith; so also in
The Lulu, 10 Wall. 200, 19 L. Ed. 908, to the same effect; The Kalorama,
10 Wall. 211, 19 L. Ed. 943, holding that right to enforce such lien is not
4 Wheat. 438-444 NOTES ON U. S. REPORTS. 942
affected by fact that owner was present in such foreign port, provided
supplies were actually furnished on credit of vessel; Insurance Co. v.
Baring, 20 Wall. 163, 22 L. Ed. 252, holding that advances made to equi])
vessel in foreign port are presumed to be made on credit of vessel, and
constitute insurable interest; The Lulu,' 1 Abb. (U. S.) 193, Chase, 164,
Fed. Gas. 8604 (see 10 Wall. 200, 19 L. Ed. 908, supra) ; The William and
Emmerline, Blatchf. & H. 70, 72, Fed. Gas. 17,687, enforcing bottomr>'
bond given for supplies furnished; The Gold Hunter, Blatchf. & H. 306,
Fed. Gas. 5513, enforcing lien under contract for unloading vessel; Reeder
V. The George's Creek, 3 Hughes, 586, Fed. Gas. 11,654, holding that lion
for such necessities cannot be displaced by mortgage on vessel recorded
in home port ; The Active, Olc. 288, Fed. Gas. 34, holding lien for materials
not waived by acceptance of promissory note ; Remnants in Court, Olc. 384,
Fed. Gas. 11,697, to point that where credit is given expressly to owner,
claims of materialmen cannot constitute lien on vessel; The Witch Queen,
3 Sawy. 202, Fed. Gas. 17,916, and The Barque Chusan, 1 Sprague, 39,
Fed Gas. 2716, enforcing lien for supplies furnished in State other than
that to which vessel belonged (see also same case on appeal, 2 Story,
461, 463, Fed. Gas. 2717, reversing 1 Sprague, 39, Fed. Gas. 2716, on other
grounds) ; The Brig Nestor, Sumn. 74, 87 Fed. Gas. 10,126, holding that
giving credit for fixed time does not extinguish lien for supplies; The Brig
Draco, 2 Sumn. 178, Fed. Gas. 4057, Enforcing bottomry bond executed by
owners, against bona fide purchaser of vessel in absence of laches on part
of lender; Drinkwater v. The Spartan, 1 Ware, 153, Fed. Gas. 4085, as
instance where admiralty enforced maritime lien; The Scotia, 35 Fed. 909,
holding that lien for supplies furnished takes precedence of prior mort-
gage; Chapman v. Engines of The Greenpoint, 38 Fed. 672, holding salvor
entitled to lien upon property saved; The Susan G. Owens, 23 Fed. Gas.
448, holding that where vessel in course of construction is sold to person
residing in another State, materialmen have lien for materials furnished
prior to sale; Murphey v. Mobile etc. Co., 49 Ala. 438, denying jurisdic-
tion of State court to enforce, by admiralty process, materialman's lien;
Thoms V. Southard, 2 Dana, 482, 26 Am. Dec. 473, holding decree of Fed-
eral court enforcing lien against vessel to be conclusive, and not attachable
in State court; Hayfprd v. Cunningham, 72 Me. 131, denying jurisdiction
of State court to enforce, by admiralty process, material lien provided for
by its own State statutes; so also in Warren v. Kelley, 80 Me. 524, 526,
15 Atl. 50, 51, to same effect ; The Petrel v. Dumont, 28 Ohio -St. 610, 22
Am. Rep. 899, holding that such jurisdiction extends to enforcing lien
occurring in port on Ohio river; The Willapa, 25 Or. 73, 34 Pac. 689,
denying juri^iction of State court to enforce, by admiralty procedure, a
lien for supplies furnished ; The J. E. Rumbell, 148 U. S. 12, 37 L. Ed. 847,
13 Sup. Gt. 500, Fox v. Holt, 4 Ben. 296, Fed. Gas. 5012, Cunningham v.
Hall, 1 Cliff. 49, Fed. Gas. 3481, Hill v. The Golden Gate, Newb. 310, Fed.
Gas. 6492, Grapo v. Allen, 1 Sprague, 185, Fed. Gas. 3360, Zane v. Brig
President, 4 Wash. 454, 456, Fed, Gas. 18,201, and Fox v. Holt, 36 Conn.
572, all arguendo.
943 THE GENERAL SMITH. 4 Wlieat. 438-444
Distingaished in Tliomas vl Osborn, 19 How. 28, 15 L. Ed. 537, refusing
to enforce lien against vessel Where there was no necessity for attaching
lien and master was able personally to pay for supplies furnished ; Burke
Mfg. Co. V. The A. Saltzman, 42 Mo: App. Si, asserting exclusive jurisdic-
tion of State court over lien enacted by statute:
Admiralty jurisdiction of contracts. Note, 66 L. R. A. 215.
Admiralty possesses general jurisdiction in cases of suits by materialmen,
both in personam and in rem.
Approved in The Robert W.. Parsons, 191 JJ. S. 24, 48 L. Ed. 76, 24 Sup.
Ct. 8, holding enforcement of lien ih rem for repairs made in port of State
to which it belong^, to canal boat engaged on Erie canal cannot be enforced
by proceedings in rem in State court ; The Iris, 100 Fed. 113, holding con-
tracts to furnish labor or materials for repair of vessel are maritime;
Andrews v. Wall, 3 How. 573, 11 L. Ed. 731, asserting jurisdiction over
contract of consort ship, as a marine contract ; The Wave, Blatchf . & H.
241, Fed. Cas. 17,297, holding that admiralty has jurisdiction over claims
for salvage upon waters within ebb and flow of tide, although within body
of State; Thatcher v. McCulloh, 01c. 369, Fed. Cas. 13,862, holding that
action in personam lies to recover freight in favor of master against con-
signee; The Calisto, 2 Ware (Dav.), 31, Fed. Cas. 2316, following* Yiile ;
Constantine v. The River 'Queen, 2 Fed. 731, holding that weighing and
measuring of cargo constitutes a marine service and may be subject of
action in personam'; Enduer v. Greco, 3 Fed. 412, 413, holding that mate-
rialman, although he has no lien in domestic port, may sue in personam;
Pelham v. The B. F. Woolsey, 3 Fed. 461, entertaining libel for wharfage ;
Marshall v. Bazin, 16 Fed. Cas. 837, entertaining action in personam to
recover on contract for transportation of passengers; State v. Thacher, 1
Ware, 97, Fed. Cas. 13,348, arguendo. .
Criticised in separate concurring opinion of Johnson, J., in Ramsay v.
Allure, 12 Wheat. 614, 635, 636, 639, 6 L. Ed. 747, 754, 755, 756, denying
right of hiaterialmen to proceed in personam where action in rem could
not be maintained.
Distinguished in Merritt v. Sackett, 17 Fed. Cas. 140, under "Rule 12."
Admiralty will enforce lien for repairs inade or supplies f umifllied in home
port or vessel, only where lien expressly created by locid law.
Approved in Fredericks v. Jas. Rees & Sons Co.> 135 Fed. 731, 68 C. C. A.
368, The Sue, 137 Ted. 135, and The John S. Parsons, 110 Fed. 995, all
following rule; The Roanoke, 189 U. S. 194, 47 L. Ed. 773, 23 Sup. Ct. 492,
holding 2 Ball. Code, §§ 6953, 5954 (Wash.), void as an attempt to control
administration of maritime law; The Rupert City, 213 Fed. 268, holding
stevedore contracting with managing owner for discharge of ship entitled
to maritime lien under act June 23, 1910, c. 373, §§1, 2; The J. Doherty, 207
Fed. 1000, holding Act June 23, 1910, c. 373, § 1, giving maritime lien to
person furnishing repairs, etc., does not include towage ; The Underwriter,
119 Fed. 741, 748, holding that under charter-party providing that charterer
shall pay for all fuel master cannot bind vessel for such supplies; Yost v.
4 Wheat. 438-444 NOTES ON U. S. REPORTS. 944
Lake Erie Transp. Co., 112 Fed. 750, holding vessels engaged in interstate
or foreign commerce are taxable only in home port ; The Iris, 100 Fed. 106,
holding State may impose liens on domestic vessels for repairs made in
ports of State; Commonwealth v. Ayer etc. Tie Co., 117 Ky. 169, 77 S. W.
688, home port of vessel engaged in interstate commerce is its situs for
taxation though owner resides in different State; Peyroux v. Howard, 7
' Pet. 341, 8 L. Ed. 706, holding lien of materialman on domestic vessel, pro-
vided for by statute, enforceable in admiralty; New Jersey etc. Co. v.
Merchants' Bank, 6 How. 390, 12 L. Ed. 485, as instance of difference
between English and American admiralty practice; Hays v. Steamship Co.,
17 How. 599, 15 L. Ed. 255,* as showing distinction, in contemplation of
admiralty, between vessels in home ports and those in foreign ports; The
St. Lawrence, 1 Black, 529, 17 L. Ed. 183, enforcing lien given by State
statute for repairs made in home port (cause was pending at time rule
disclaiming jurisdiction to enforce such liens was adopted) ; Ex parte
McNeil, 13 Wall. 243, 20 L. Ed. 627, asserting jurisdiction of Federal
courts to enforce State laws regulating subject of pilotage; The Lotta-
wanna, 21 Wall. 571, '579, 22 L. Ed. 660, 663, refusing to entertain juris-
diction where State statute regarding recording of liea had not been com-
plied with ; The Glide, 167 U. S. 609, 610, 611, 613, 614, 615, 619, 42 L. Ed.
297, 298, 299, 300, 17 Sup. Ct. 931, 932, 933, 934, enforcing lien for repairs
under State statute; so also in The Harrison, 2 Abb. (U. S.) 75, 84, 93, 1
Sawy. 354, 363, 373, Fed. Cas. 5038 ; The Alida, Abb. Adm. 169, Fed. Cas.
199, refusing to enforce lien where it was not asserted within time pre-
scribed by State statute; The Infanta, 1 Abb. Adm. 268, Fed. Cas. 7030,
declining to enforce lien not recognized by State law; The Circassian, 1
Ben. 141, Fed. Cas. 2721, as showing distinction between foreign and
domestic vessels; The Kate Hinchman, 7 Biss. 239, Fed. Cas. 7621, hold-
ing that duly recorded mortgage of vessel is to be preferred to lien for
supplies given Ijy State law; The Circassian, 11 Blatchf. 473, 474, 475,
Fed. Cas. 2726, construing "ttew twelfth rule of admiralty"; Cole v. The
Atlantic, Crabbe, 442, Fed. Cas. 2976, holding that where lien given to
mechanic for repairs made in home port, delay of two years in enforcing
it will not defeat it, in absence of culpable neglect; The Young Mechanic,'
2 Curt. 405, 406, Fed. Cas. 18,180, holjjing such lien not to be divested by
death of owner, and representation by administrator of the insolvency of
the estate ; The Albany, 4 Dill. 442, 443, Fed. Cas. 131, refusing to enforce
lien for supplies furnished, theJ-e being no State statute on the subject;
Phillips V. The Thomas Scattcrgood, Gilp. 9, Fed. Cas. 11,106, enforcing
lien for wages under State law; Davis v. Brig. Gilp. 478, Fed. Cas. 3643,
holding that lien vested under State law cannot be defeated by transfer
of vessel to new owner ; The Red Wing, 5 McCrary, 123, 14 Fed. 870, hold-
ing that where statute prescribes time within which lien must be enforced,
equity will recognize such limitation; Wick v. The Samuel Strong, 6
McLean, 590, Newb. 190, Fed. Cas. 17,607, granting motion to dismiss libel
where lien not recognized by State law; The Harriet, 01c. 231, Fed. Cas.
6097, enforcing statutory lien of watchman employed on board domestic
vessel, The Eliza Xadd, 3 Sawy. .521, Fed. Cas. 4364, enforeing lien for
X
945 THE GENERAL SMITH. 4 Wheat.. 438-444
work given by State law; The City of Salem, 7 Sawy. 479, 10 Fed. 846,
where statute provided that persons performing labor on vessel at request
of contractor should have lien for wages ; The Richard Busteed, 1 Sprague,
442, 446, 447, Fed. Cas. 11,764, enforcing provisions of State statute regu-
lating liens given for materials furnished in building ship; The Schooner
Marion, 1 Story, 72, Fed. Cas. 9087, refusing to enforce lien under facts
identical with those in principal case; Reppert v. Robinson, Taney, 497,
Fed. Cas. 11,703, enforcing lien under statute where, by law of State,
acceptance of promissory note did not extinguish principal debt; Pickell
V. Loper, Taney, 502, Fed. Cas. 11,119, dismissing libel where . supplies
were furnished in port where vessel licensed; Hull of a Ship, 2 Ware
(Dav.), 201, Fed. Cas. 6859, enforcing statutory mechanic's lien; Macy v.
De Wolf, 3 Wood. & M. 203, Fed. Cas. 8933, as showing distinction between
foreign and domestic vessels; Monongahela Nav. Co. v. The Bob Connell,
1 Fed. 219, holding that lien for lockage does not arise where services ren-
dered vessel in home port; The E. A. Barnard, 2 Fed. 721, holding that
maritime lien is to be preferred to such statutory lien; but see The Gen-
eral Burnside, 2 Flipp. 148, 3 Fed. 231, where such liens are held to be en-
titled to equal rank with liens of foreign materialmen; Kretzmer v. The
William A. Levering, 35 Fed. 784, holding that no lien arises by sale of
supplies to cook of vessel; The Manhattan, 46 Fed. 798, entertaining suit
to enforce lien for labor in building vessel in home port; The Samuel
Marshall, 49 Fed. 756, arguing in favor of application of rule where one
of several joint owners resides in town where credit given; Lighters Nos.
27 and 28, 57 Fed. 666, Fed. Cas. 15,236, refusing to enforce statutory lien
against vessel where credit not given to vessel; so also in The Alyira, 63
Fed. 147, 155, to same effect ; The Unadilla, 73 Fed. 351, holding that statu-
tory liens are inferior to maritime liens, and holders are entitled to share
only after maritime liens satisfied; The Electron, 74 Fed. 694, refusing to
enforce lien for supplies, where credit not given to vessel; Spedden v.
Koenig, 78 Fed. 506, 42 U. S. App. 267, holding that managing owner living
in town with rest of owners, cannot chaige vessel for supplies; The
Augusta, 2 Fed. Cas. 210, 212, enforcing statute giving carpenter's lien on
vessel for wages; Wicks v. The Circassian, 5 Fed. Cas. 689, under facts
similar to those in principal case; Harrison v. The Anna Kimball, 11 Fed.
Cas. 646, refusing to enforce lien under State statute allowing half pilot-
age, in absence of provision in such statute; Haslett v. The Enterprise, 11
Fed. Cas. 784, where State statute allowed lien for repairs; Hill v. The
Golden Gate, 12 Fed. Cas. 161, 164 ; Jenkins v. The Congress, 13 Fed. Cas.
456, holding lien lost by departure of vessel from port where supplies
furnished and statutory lien attached; Ludington v. The Nucleus, 15 Fed.
Cas. 1095, refusing to attach lien for labor in absence of State statute;
so also in Marsh v. The Minnie, 16 Fed. Cas. 811; Schuchardt v. The
Angelique, 21 Fed. Cas. 745, enforcing lien given by State statute, but re-
f usftig to give it priority claimed for it by such statute ; Udell v. The Ohio,
24 Fed. Cas. 497, holding that lien will not attach under State law for
materials furnished to builder after contract price paid to builder in full;
Whittaker v. The J. A. Travis, 29 F^. Cas. 1116, 1117, enforcing statutozy
1—60
4 Wheat. 43S-444 NOTES ON U. S. REPORTS. 946
ff
lien for supplies furnished; Steamboat Belfast v. Boon, 41 Ala. 63, in
support of validity of act giving shipper ia lien for loss of goods; Budding-
tbn V. Stewart, 14 Conn. 409, applying principle in State court and refus-
ing to enforce lien for repairs made in home port, in absence of statute ;
Rees V. The General Terry, 3 Dak. Ter. 167, 13 N. W. 637, refusing to en-
force mechanic's lien; Williamson v. Hogan, 46 111. 518, refusing to en-
force lien for supplies ; Tug Montauk v. Walker, 47 111. 337, to point that
State statute giving lien for supplies and right to enforce it in State court
is valid if not in conflict with Federal jurisdiction; so also in Dorr v.
Waldron, 62 111. 228, 14 Am. Rep. 91, Bauduc's Syndics v. Nicholson, 4 La.
85, applying principle in denying jurisdiction of United States court to
interfere with execution of decree of court in action to enforce statutory
lien against domestic vessel; Urann v. Fletcher, 1 Gray, 128, where no
lien given by statute for supplies furnished in domestic port; so also in
Dever v. The Hope, 42 Miss. 723, 2 Am. Rep. 648, 649, Brookman v. Hamill,
43 N. Y. 560, S Am. Rep. 736, asserting right of. State to provide for en-
forcement of such liens according to common-law rules; Waggoner v. St.
John, 10 Heisk. 621, asserting power of State legislatures to create lien
not recognized by maritime law; Price v. Frankel, 1 Wash. Ter. 39, hold-
ing that where State statute provides that lien shall not attach for sup-
plies furnished in home port, until action commenced, territorial Admiralty
Court has no' jurisdiction to entertain suit ; dissenting opinion in Waring
V. Clarke, 5 How. 491, 12 L. Ed. 250, The Lottawanria, 20 Wall. 217, 219,
22 L. Ed. 262, In re Surplus etc. of The Ship Edith, 11 Blatchf. 460, 461,
462, Fed. Cas. 4283, The Hilarity, Blatchf. & H. 92, Fed. Cas. 6480, Hatton
V. The Melita, 3 Hughes, 499, Fed. Cas. 6218, The Robert Fulton, 1 Paine,
626, Fed. Cas. 11,890, Davis v. Child, 2 Ware (Dav.), 74, Fed. Cas. 3628,
The Dolphin, 1 Flipp. 584, Fed. Cas. 3973, In re Long Island etc. Co., 5
Fed. 609, The Samuel Marshall, 54 Fed. 399, 401, 6 U. S. App. 389, David-
son V. Baldwin, 79 Fed. 97, 47 U. S. App. 589, Moir v. Dubuqiie, 17 Fed.
Cas. 570, 571, Zollinger-v. The Emma, 30 Fed. Cas. 940, Bowen v. Peters,
71 Me. 465, and Gould v. Jacobson, 58 Mich. 291, 25 N. W. 196, all arguendo.
Modified in Schultz v. Bosman, 5 Hughes, 101, Fed. Cas. 12,488, ruling
otherwise, where port where supplies furnished is the home port, but owner
resides at distance, and need for supplies is urgent.
Distinguished in The George T. Kemp, 2 Low. 481, Fed. Cas. 5341, where
vessel was really owned by foreigner, and sailed under foreign flag, and
lien was enforced for supplies furnished in port where equitable owner
resided; Maguire v. Card, 21 How. 251, 16 L. Ed. 118, denying jurisdic-
tion of admiralty to enforce statutory liens for contracts of affreightment
to be performed upon rivers wholly within a State, a prior rule of court
having disclaimed jurisdiction to enforce liens given by State law; The
H. E. Willard, 52 Fed. 389, denying jurisdiction to enforce statutory lien
which is not maritime in its nature.
Criticised in Jackson v. The Kinnie, 13 Fed. Cas. 219, holding that stat-
utes providing for liens in home port, in effect attempt to confer jurisdic-
tion upon admiralty courts, and are void; The Josephine, 39 N. Y. 24, 26,
27, holding void an act of legblature creating statutory lien enforceable
V.
947 THE GENERAL SMITH. 4 Wheat. 438-444
in admiralty courts; in dissenting opinion in The Lottawanna, 21 Wall.
5i2, -22 L. Ed. 667, arg^in^ in favor of jurisdiction of admiralty to enforce
lien, although requirements of State statute not strictly ohserved; dissent-
ing opinion in Ward v. Peck, 18 How. 271, 15 L. Ed. S85, majority uphold-
»ing admiralty jurisdiction over petitory suits; The Kate Tremainc, 5 Ben.
67, Fed. Cas. 7622, hoMing that contract for wharfage creates a maritime
lien, enforceable in absence of State statute. Limited in The John Rich-
ards, 1 Biss. 108, Fed. Cas. 7361, holding that general maritime lien is
sux)erior to lien recognized by State statute, and judgment and sale under
latter cannot displace former. So also in The N. W. Thomas, 1 Biss. 214,
215, Fed. Cas. 10,386.
, Jurisdiction over maritime liens. Note, 62 Am. Dec. 241, 243.
Lien for construction of vessel. Note, Ann. Oas. 1915D, 47.
Right to maritime lien for supplies. Note, 24 E. B. 0. 658.
What contracts will support maritime lien. Note, 70 L. B. A. 357, 399,
407, 409.
SUpwrUlit, making tepain in domestic port, has lien upon vessel in ah-
fence of statnte, bo long as site remains in his possession.
Approved in The Sue, 137 'Fed. 135, following rule ; The Colfax, 179 Fed.
976, holding claimant entitled to lien for services and supplies furnished
to dredge on orders of master, under Consol. Laws N. Y. 1909, c. 33, § 80 ;
American Triist Co. v. W. & A. Fletcher Co., 173 Fed. 473, 97 C. C. A. 477,
holding mortgage given by steamship company, covering all vessels it then
owned, cannot bind after-acquired vessels, as against liens given by stat-
ute for their construction; Downey v. Lozier Motor Co., 138 Fed. 176,
where libelants, who equipped boat with engine, surrendered boat without
payment, right to lien not revived by subsequent delivery of vessel to them
for repairs ; Leland v. The Medora, 2 Wood. & M. 97, Fed. Cas. 8237, hold-
ing that materialman waives lien by unreasonable delay in enforcing it;
Jenkins v. Congress, 13 Fed. Cas. 456, holding that departure from port
where supplies furnished destroys lien given by State statute; Case ¥•
Woolley, 6 Dana, 22, 23, 27, 32 Am. Dec. 59, 60, 68, where shipwright sur-
rendered possession of vessel after building; Herrington v. The Chisholm,
8 Jones (N. C), 8, holding that where such liens are regulated by statute,
they are lost if not enforced as provided by statute.
Miscellaneous. '^Citjsd in Waring v. Clarke, 5 How. 459, 12 L. Ed. 235,
holding that admiralty jurisdiction cannot, as intimated in principal case^
be determined by common-law rules; so also in The Stephen Allen, Blatchf.
& H. 177, Fed. Cas. 13,361, Packard v. Ship Louisa, 2 Wood. & M. 53, Fed.
Cas. 10,652, but application doubtful ; so also in Sheaf e v. Kimball, 21 Fed.
Cas. 1209; Cox v. Murray, Abb. Adm, 341, Fed. Cas. 3304, to point tCat in
admiralty remedy is to be sought in rem against vessel or in personam
iigainst owner.
4 Wheat. 444-465 NOTES ON U. S. REPORTS. MS
4 Wheat. 444-452, 4 L. Ed. 611, McIVEB'S I£S8EE ▼. WAIa9S&
Dedsioii in 0 Or. 173-179, reaffirmed apon all points tbea- ^Mded. See
note to that case.
Wells V. Jackson etc. Co.| 47 N. H. 260, 90 Am. Dec. 589, cites both de-
cisions to point that where nothing exists to control calls for courses an4
distances, land must be bounded by courses and distances according to the
magnetic meridian. The later decision is cited on this point in Bruckner's
Lessee v. Lawrence, 1 Doug. (Mich.) 29, where authorities are collected and
discussed.
Cited in City of Cleveland v. Bigelow, 98 Fed. 250, holding plat controls
boundary of lot where there is a discrepancy with minutes of survey;
Ayers v. 'Huddleston, 30 Ind. App. 249, 66 N. E. 62, upon question of
boundary. On the point that monuments designated in a patent will con-
trol courses and distances, both decisions are cited in Higley v. Bidwell,
9 Conn. 452, and distinguished in Stanley v. Stanley, 2 N. H. 37^. The
following cases cite only the later .decision upon this point : Sayers v. City
of Lyons, 10 Iowa, 265, where monument called for was "low-water mark"
on navigable stream and made longer line ^ than that called for by dis-
tance ; Wendell v. People, 8 Wend. 190, 22 Am. Dec. 689, applying rule to
similar state of facts. The rule is also cited, arguendo, in Opdyke t.
Stephens, 28 N. J. L. 86, and Browning v. Atkinson, 37 Tex. 660.
The following cases cite both decisions to the point that if patent refer
to plat annexed, resort may be had to such plat to correct repugnancies in
patent: Brown v. Clements, 3 How. 672, 11 L. Ed. 778, United States v.
Texas, 162 U. S. 37, 40 L. Ed. 879, 16 Sup. Ct. 733, Knowles v. Nichols, 2
Curt. 574, Fed. Cas. 7897, Langdon v. New York, 93 N. Y. 148, Wolfe v.
Scarborough, 2 Ohio St. 368, Waterman v. Andrews, 14 R. I. 698. The
principle is applied in the following additional cases, citing simply this
later decision : Noonan v. Lee, 2 Black, 504, 17 L. Ed. 280, where land was
described as "southeast quarter" of certain section; Trapier v. Wilson, 2
McCord (S. C), 197, holding that where land is described as being "an
island," grant includes the whole island as designated by surveyor's plat.
The principal case is also cited approvingly, but without particular appli-
cation to the point at issue, in McManus. v. Carmichael, 3 Iowa, 38.
General rules for the location of boundaries. Note, 129 Am. St. Rep.
1007.
4 Wheat. 453-465, 4 L. Ed. 613, ORB v. HODGSON.
The sixth article of treaty of peace of 1783 protected from forfeiture,
by reason of a lienage, lands then held by British subjects.
Approved in Blythe v. Hinckley, 127 Cal. 435, 59 Pac. 788, arguendo;
Society etc. v. New Haven, 8 Wheat. 489, 5 L. Ed. 668, extending protection
to corporations created by British crown; Hughes v. Edwards, 9 Wheat.
496, 6 L. Ed. 144, entertaining bill by alien mortgagee to have l^nd sold
which was conveyed to him as security for debt; Hauenstein v.'Lynham,
100 U. S. 489, 25 L. Ed. 630, applying principle in construing similar treaty
with Swiss Confederation; Hanrick v. Patrick, 119 U. S. 165, 30 L. Bd. 40S»
949 ORR V. HODGSON. . 4 Wheat. 453-405
7 Snp. Ct. 152, construing State statute confirming titles of British sab-
jeets; In re Parrott, 6 Sawy. 371, 1 Fed. 503, as instance where rights of
aliens were held to be protected against State laws, holding void, provision
in State Constitution prohibiting employment of Chinese, as repugnant
to existing treaty; People v. Gerke, 5 Cal. 382, construing similar treaty
with Prussia; Forbes v. Scannell, 13 Cal. 283, as instance of exercise of
treaty-making power in construing 1;reaty regulating right to sue in con-
sular courts in China ; Pollard v. Kibbe, 14 Pet. 412, 10 L. Ed. 519 , and
Piper v. Richardson, 9 Met. 157, arguendo.
Limited in Crane v. Reeder, 21 Mich. 63, 66, 68, 73, 4 Am. Rep. 436, 438,
439, 441, construing later treaty, and holding rule to apply only to valid titles
existing at time treaty made.
Word "heirs" in ninth article of treaty of 1794, did not include any other
than British subjects or American citizens at time of descent cast.
Cited in Brown v. Sprague, 5 Denio, 549, holding that treaty securing
aliens in possession of lands does not impliedly confer power to transmit
such lands to aliens by descent.
Right of alien to inherit real property as affected by treaty with
foreign country. Note, Ann. Gas. 1912A, 1101.
Aliens are not heim; the law casts the descent upon the next of kin hav-
ing heritable blood.
Approved in In re Colbert's Estate, 44 Mont. 266, 119 Pac. 793, holding
Const., art. Ill, § 25, does not limit power of legislature to impose on right
of aliens to inherit conditions prescribed by Rev. Codes, § 4835 ; Thomas
V. Estate etc., 64 Neb. 589, 80 N. W. 633, holding un^er Comp. Stat., c. 23,
§ 31, making illegitimate child heir of person, who shall in writing signed in
presence of competent witness acknowledge himself to be the father of such
child, no intention to make child an heir and no distinct statement that it is
an illegitimate child need appear in the writing; Bradford v. Leake, 124
Tenn. 320, Ann. Gas. 1912D, 1140, 137 S. W. 98, holding, where land is con-
veyed for life and on grantee's death to his children, with limitation that
if his issue should become extinct within twenty-one years after his death
property should revert to grantor, who afterward made will disposing of
bis entire estate, grantee's children surviving him take determinable fee;
Ehrlich v. Weber, 114 Tenn. 719, 88 S. W. 189, applying rule under Acts
1875, p. 4, c. 2, and Acts 1883, p. 330, c. 250, §§ 1, 2; Abrams v. State, 45
Wash. 339, 122 Am. St. Rep. 914, 18 Ann. Gas. 527, 9 L. R. A. (N. S.) 186,
88 Pac. 329, holding real estate granted by deed to alien and not declared
forfeited during his lifetime descends to his alien heirs; McKinney v.
Saviego, 18 How. 238, 15 L. £d. 367, holding that citizen of Mexico could
not transmit, by inheritance, title to land in Texas, to a person also a
citizen of Mexico ; Sullivan v. Burnett, 105 U. S. 338, 26 L. Ed. 1125, holding
State statute allowing nonresident alien limited time to sell lands whereof
intestate had died seised, applied only where there was no heritable blood ;
Smith V. Zaner, 4 Ala. 106, in action of trespass to try titles as between
resident and alien descendants; Congregational Church v. Morris, 8 Ala.
4 Wheat. 453-465 NOTES ON U. S. REPORTS. 950
188, applying principle in denying power of alien to transmit inheritable
blood, and holding widow of an alien not entitled to dower in his lands;
Wunderle v. Wunderle, 144 111. 54, 67, 33 N. E. 197, 201, construing term
^'kindred'' in State statute regulating descents, and holding it to mean
kindred capable of inheriting; Stemple v. Heminghouser, 3 G. Greene,
409, 410, reversing, judgment of lower court, holding that alien children
were entitled to notice of proceeding" for partition of ancestor's lands;
Jackson v. Green, 7 Wend. 340, denying right of citizen to inherit where
he was obliged to trace descent through an alien; Orser v. Hoag, 3 Hill, 82,
83, 85, holding person who was born in this country, but removed prior
to treaty and did not return, to be an alien and incapable of inheriting:;
Brown v. Sprague, 5 Denio, 549, holding that treaty of 1783 did not include
the right to transmit by descent to aliens the lands so secured; McLean
V. Swanton, 13 N. Y. 539, construing statute removing disabilities of
citizens obliged to trace descent through alien, and holding statute to be
inoperative if such alien is living ; Munro v. Merchant, 28 N. Y. 36, denying
right of child bom in this country of alien parents, to inherit, where,
after birth, he removed with his parents to Canada and did not return
until their death ; Rutherford v. Wolfe, 3 Hawks, -276, holding that statute
allowing nearest relation to inherit where there are nearer relations who
are aliens, was not repealed by a statute providing a general system of
descents; Ford v. Husman, 7 Rich. 166, holding alien widow of deceased
citizen entitled to all his estate as against alien sisters; McClenaghan v.
McClenaghan^ 1 Strob. Eq. 322, 47 Am. Dec. 536, denying right of denizen
to inherit ; Hardy v. De Leon, 5 Tex. 240, 242, sustaining plea in abatement
where suit brought for recovery of lands of ancestor, joined names of
aliens and citizens ; House of Mercy v. Davidson, 90 Tex. 534,' 39 S. W. 926,
on point that if corporation is prohibited from taking property under will
in excess of certain amount, such excess descends to heirs; Barzizas v.
Hopkins, 2 Rand. 285, a case involving same facts and same parties as
principal case; Harley v. State, 40 Ala. 696; Jones v. Minogue, 29 Arli.
645, arguendo.
Distinguished in Cooke v. Doron, 215 Pa. 395, 64 Atl. 595, under act
Feb. 23, 1791, alien husband is entitled as tenant by curtesy to realty of
which wife died seised; Jackson v. Adams, 7 Wend. 368, holding that
where, under statute, alien is allowed to purchase and hold land, such
lands descend to his heirs, although aliens.
Alien's right to inherit. Note, 31 L. R. A. 177, 180, 182.
Husband and wife. Note, 12 Am. St. Rep. 93, 95.
Miscellaneous. Cited in Trimbles v. Harrison, 1 B. Mon. 143, as having
impliedly asserted right of British subjects during Revolution to elect as
to allegiance. Erroneously cited in Gregorie v. Bulow, Rieh. Eq. Cas. 245,
and Union Bank v. Hill, 3 Cold. 329.
4 Wheat. 466-488, 4 I«. Ed. 616, A8T0B v. WELIJSk
Notice of prior encumbrances given to agent constitntes constractlye
notice to his principal.
/
»51 ASTOR V. WELLS. 4 Wheat. 466-488
^
Approved in Pine Mountain Iron & Coal Co. v. Bailey, 94 Fed. 260,
lioidmg fact, that agent also acts as agent for adverse party does not pre-
vent principal from being bovind by agent's knowledge; Bierce y. Red
Bla£^ Hotel Co., 31 Cal. 165, holding in garnishment proceedings, that
notice to attorney that debt due defendant was .transferred prior to service
of garnishmeQt, is constructive notice to plaintiff, his client; Munce v.
Byars, 11 Ga. 195, where notice to agent of vendor, that property was sub-
ject to lien, was held to be notice to vendor; Page v. Brant, 18 111. 39,
sustaining plea in abatement because of nonjoinder of parties, where it
appeared :that plaintiff's agent knew of such defect ; Tobin v. Helm, 4
J. J. Marsh. 293, holding notice of. outstanding equity to agent of execution
creditor is notice to his principal; Mayor v. Whittington, 78 Md. 238, 27
Atl. 985, where notice to attorney of tax collector of existence of leasehold
estate was held to be notice to collector, and sale of property for taxes
was void where statute provided that leasehold should be first sold.
Distinguished in Greer v. Higgins, 8 Kan. 522, where admissions upon
which alleged notice was based, were made after term of agency had ex-
pired, and proof of notice was wanting.
Imputing to principal notice to solicitor or agent. Note, 21 E. B. 0.
842.
Where county divided, deed of land lying In new county, executed before
division, was not properly recorded In old county after such division.
Approved in Richardson v. Shelby, 3 Okl. 80, 41 Pac. 382, to have effect
of notice to creditors' chattel mortgage and its registry must comply with
law. As asserting the principle that in order to give notice to subsequent
purchasers, deed must be recorded in strict compliance with the law, sec
Williams v. Logan, 32 Ga. 168, construing statute requiring registry of mar-
riage settlements, executed prior to fts passage, and holding it to include all
such settlements whether previously recorded or not; Barney v. Little, 15
Iowa, 536, holding that where statute is strictly complied with, presumption
of notice thus raised is incontrovertible ; Richardson v. Shelby, 3 Okl. 80, 41
Pac. 382, holding chattel mortgage void as against mortgagor's creditors,
where not recorded within time limited by statute; Adams v. Hayden, 60
Tex. 226, applying rule directly in holding that recording of deed in wrong
county, under mistake as to true locality of property, is inoperative to
charge subsequent purchaser; Reed v. Kemp, 16 111. 451, Garrison v. Hay-
don, 1 J. J. Marsh. 22^, 19 Am. Dec. 70, arguendo.
Person employed solely by grantor as scrivener to draw deed Is not agent
of piiroha"er, and notice to him is not constructive notice, to purcbaser.
Cited in De Lopis v. Meek, 2 G. Greene, 70, 50 Am. Dec 504, holding
party not bound by admissions or representations of attorney \irho repre-
sented him without authority in partition proceedings.
A bona flde purchaser for valuable consideration takes good title, altbough
conveyance was made to defraud a creditor.
Approved in Birdsall v. Welsh, 6 D. C. 322, holding, where suit is pend-
ing against debtor, another creditor may take assignment of debtor's prop-
4 Wheat. 488-502 NOTES ON U.. S. REPORTS. 952
y
«rty as security for his debt; Bean v. Smith, 2 Mason, 299, Fed. Cas. 1174,
holding that bona fide purchaser from grantee, to whom property was con-
veyed in fraud of creditors, may hold same against creditors of grantor;
Howe Machine Co. v. Claybum, 6 Fed. 441, 442, refusing to set aside con-
veyance in absence of proof that grantee was a party to fraud charged;
Hollister v. Loud, 2 Mich. 313, holding that assignment for benefit of cred-
itors is presumed to have been made bona fide, and fraud on both sides
must be proven; so also in Worman v. Wolfersberger, 19 Pa* St. 63; How-
ard V. Daniek, 2 N. H. 141, Porter v. Cocke, Peck (Tenn.), 40, arguendo.
Distinguished in Swift v. Thompson, 9 Conn. 72, 21 Am. Dec. 726, under
statute declaring such fraudulent deed to be void.
Effect on legal title of conveyance in fraud of creditors. Note, 67
L. B. A. 896.
Participation in vendor's fraud invalidating transfer for good con-
sideration. Note, 32 L. B. A. 39*
4 Wheat. 488-496, 4 I>. Ed. 622» McABTHUB ▼. BBOWBEB.
Patent is foundation of title, and neither party caor bring entry before
court of law, but junior patentee, claiming under elder entry, may, In equity,
support his equitable title.
Cited in Johnson v. Towsley, 13 Wall. 86 (reprinted in 2 Neb. 490), 20
L. Ed. 487, asserting jurisdiction of equity to correct mistake of land de-
partment whereby patent is issued to wrong person; McAfee v. Kerin, 7
Smedes & M. 789, 45 Am. Dec. 883, holding that actual entry and com-
pliance with all requirements will prevail over prior entry and patent where
such requirements not strictly complied with.
Entry must be made with sucb certafinty that subsequent purcliasen magr
be enabled to locate the adjacent residuum,
Cited in Harper v. Baugh, 9 Gratt. 520, holding that where first entry
is void for uncertainty, a second calling for all lands within specified
boundaries not covered by the first is also void for same reason; McNeel
V. Herold, 11 Qratt. 314, dismissing caveat, where objects called for in
elder entry were not of sufficient notoriety to give notice to subsequent
locator.
Miscellaneous. Erroneously cited in Pollard v. Kibbe, 14 Pet. 412, 10
L. Ed. 519. '
4 Wheat. 497-502, 4 L. Ed. 624, THE NUESTBA SENOBA DB ImA OABIDAB.
Where belligerency of insurrectionary government recognized, United
States courts cannot inquire into legality of capture as between snch insur-
rectionary government and power with wbicb it is at war.
Cited in Dole v. Insurance Co., 2 ClifE. 427, Fed. Cas. 3966, holding cap-
ture by rebel privateer not to be an act of piracy, the commander having
acted under commission issued by rebel government. The following cases
also cite the principal case as authority for holding that the recogn^itioa
953 WHEATON'v. SEXTON. 4 Wheat. 503-^08
of belligerency is a political function and not exercisable by the courts:
United States v. Packages, 27 Fed. 289 , United States v. Cement, 27 Fed.
Cas. 293 , United States v. Cotton, 27 Fed, Cas. 328 , Kelley v. State, 25
Ark. 398, Perkins y. Rogers, 35 Ind. 156, 9 Am. Bep. 664, Ford v. Surget,
97 U. S. 617, 24 L. Ed. 1025, ^and The Schooner Tilton, 5 Mason, 471, Fed.
Cas. 14,054, arguendo.
Distinguished in The Ambrose Light, 25 Fed. 429, holding void letters of
marque issued by rebel government whose belligerent rights had not been
recognized by any sovereign power.
Miscellaneous. Erroneously cited in Sutton ▼. Askew, 66 N. C. 186.
4 Wheat. fi03-508, 4 Ii. Ed. 626, WHEATON y. SEXTON.
iSale under fi. fa., is legal as to purcliaser, if writ levied before return-
day, althougli sale made after.
Approved in Fruit Exchange v. Stamm, 9 N. M. 371, 54 Pac. 348, holding
judgment in rem may be rendered notwithstanding return on attachment
was not made until after judgment was taken; Voorhees v. Bank, 10 Pet.
477, 9 L. Ed. 501, holding that where execution is issued against property
of an absent debtor, and sale under it is confirmed by court, it is imma-
terial to purchaser whether or not proceedings subsequent to execution Vere
regular; McNitt v. Turner, 16 Wall. 365, 21 L. Ed. 847, holding that admin-
istrator's sale is not avoided by failure of administrator to make return
after sale; Thompson v. Phillips, 1 Bald. 272, 273, Fed. Cas. 13,974, holding
that if the court have jurisdiction of the case, the parties, and power to
order a sale by venditioni exponas, a sale so made and deed acknowledged
is not subject to collateral attack; Bank of United States v. Voorhees, 1
McLean, 224, 225, Fed. Cas. 939 . (see 10 Pet. 477, 9 L. Ed. 501, supra),
holding purchaser at judgment sale not bound to examine record and see
if judgment is reversible for error; Sumner v. Moore, 2 McLean, 66, Fed.
Cas. 13,610, holding sheriff's sale not avoided by uncertainty of description
of land in levy, if description in deed be sufficient; Mason v. Bennett, 52
Fed. 345, a case in which facts were precisely similar to those in principal
case; Ware v. Bradford, 2 Ala. 682, 36 Am. Dec. 429, holding statute re-
quiring sheriff to advertise land thirty days before sale to be merely
directory, and sale not avoided because of failure to do so ; Wyatt v. Stew-
art, 34 Ala. 720, holding sheriff's return on execution, showing who was
purchaser at sale, is not conclusive upon real purchaser; Byers v. Fowler,
12 Ark. 273, 54 Am. Dec. 275, holding judgment by default, upon return
showing defective service of writ on defendant, although reversible on
error, is not attackable collaterally; Newton v. Bank, 22 Ark. 28, holding
that execution sale made after day stipulated is valid as to purchaser;
Ritter v. Scannell, 11 Cal. 248, 70 Am. Dec. 778, where lien of attaching
creditor taking effect immediately upon levy, was held not to be divested
by failure of sheriff to make return; Brooks v. Rooney, 11 Qa. 427, 56
Am. Dec. 433, refusing to set aside deed executed by sheriff in conformity
with sale by de facto deputy, although deputy acted without regular
appointment; Overby v. Hart, 68 Ga. 496, ruling similarly where levy failed
4 Wheat. 60a-608 NOTES ON U. S. REPORTS. 954
to clearly describe property; Swiggart v. Harber, 4 Scam. 374, 89 Am. Dec
426, collecting and discussing authorities and holding execution issued
upon erroneous judgment not subject to collateral attack ; Phillips v. Coffee,
. 17 III. 157, 63 Am. Dec. 359, holding title not affected by misrecital of judg-
ment in deed ; Jackson v. Spink, 59 111. 409, holding sale not avoided by ad-
journment of sale after day fixed by notice; Splahn v. Gillespie, 48 Ind.
408, holding that in action for possession of real estate, bought at execu-
tion sale under decree of foreclosure, defendant cannot introduce evidence
to show that debt was really less than judgment called for; Hopping v.
Bumam, 2 G. Greene, 44, where defective description in levy held to be
cured by correct description in sheriff's deed; Seely v. Reid, 3 G. Greene,
379, holding however, that where court lacks jurisdiction, judgment is, void,
and sheriff's deed cannot pass title ; dissenting opinion in Tiffany v. Glover,
3 Greene, 397, majority holding that where levy was defective as to descrip-
tion of property, sale under it was void and passed no title; Shaffer v.
Bolander, 4 G. Greene, 203, denying right of defendant in proceedings to
obtain possession of property sold, to show that law regulating appraise-
ment was not strictly observed; Cavender v. Smith, 1 Iowa, 347, holding
statute pr.escribing order in which property shall be levied upon to be
mergly directory and sale not void if statute not observed; Butterfield v.
Walsh, 21 Iowa, 101, 89 Am. Dec. 560, under facts similar to those in
principal case; so also in Moomey v. Maas, 22 Iowa, 386, 92 Am. Dec. 397;
Hill V. Baker, 32 Iowa, 307, refusing to set aside sale because of defect in
appraisement; Wright v. Howell, 35 Iowa, 295, holding regularity in issu-
ance of venditioni exponas not necessary to validity of sale; Mills v.
Ralston, 10 Kan. 212, holding sale not affected by error, even upon ques-
tion of law, in judgment upon which it was based; Aubert v. Buhler, 3
Mart. (La.) (N. S.) 494, 497, and Caldwell v. Blake, 69 Me. 470, following
rule; Crane v. Hardy, 1 Mich. 66, 66, holding that in order to pass good
title by such sale, it is not necessary that return should show proper selec-
tion of appraisers; Blair v. Compton, 33 Mich. 424, quashing an order of
lower court setting aside sale because of defective notice and description
of property sold; Vroman v. Thompson, 6l Mich. 459, 16 if. W. 811, ex-
tending rule and holding that sale may be made by sheriff after expiration
of his term of office, provided levy was made during term; Tillman v.
Jackson, 1 Minn. 188, holding provision in statute that land shall be sold
on execution in separate lots if possible, to be directory merely, and sale
en masse not void ; Barrett v. McKenzie, 24 Minn. 23, following rule ; Minor
V. Natchez, 4 Smedes & M. 624, 43 Am. Dec. 492, holding sale not avoided
by failure to give notice in precise manner provided in statute; so also
in Natchez v. Minor, 10 Smedes & M. 259, 260, 266; Buchanan v. Tracy,
46 Mo. 439, refusing to set aside deed because of error in sheriff's return
as to date of sale; Honibs v. Corbin, 20 Mo. App. 511, holding strict com-
pliance with statute as to notice, not necessary to validity of deed as be-
tween debtor and purchaser ; Johnson v. Bemis, 7 Neb. 226, following rule ;
Wyant v. Tuthill, 17 Neb. 496, 23 N. W. 343, holding that land appraised
and advertised under order of sale before return day may be sold after;
Thompson v. Leinard, Wright, 459, where statute provided expressly that
966 WHEATON v. SEXTON. 4 Wheat. 503-^08
sheriff's deed should be prima facie evidence of regularity of proceedings;
Allen V. Parish, 3 Ohio, 191, holding that where statute provides for valua-
tion of lands sold upon execution, sale of lands not so valued will not be
set aside if objection to irregularity not made upon return of writ; Ewing
V. Higby, 7 Ohio (pt. I), 203, 28 Am. Dec. 639, applying principle in re-
fusing to set aside administrator's sale, because of irregularity in not nam-
ing minor children in petition; Stall v. Macalester, 9 Ohio, 23, affirming
sale by guardian, although return of sale not made to court ; Day v. Kent, 1
Or. 128, holding that irregularities in collecting evidence of result of elec-
tion cannot avail in contesting suck result if it can be ascertained to whom
majority of votes were given; McRae v.'Daviner, 8 Or. 65, where order of
confirmation held conclusive of regularity of execution sale; Miltimore v.
Miltimore, 40 Pa. St. 155, holding decree of divorce not impeachable col-
laterally, because of irregularity; dissenting opinion in Wilcox v. Emer-
son, 10 R. I. 274, majority holding that return of execution must show
strict compliance with statute; Mitchell v. Lipe, 8 Yerg. 183, 29 Am. Dec.
119, where it was held unnecessary for purchaser at sheriff's sale to show
return in deraigning his title ; Rogers v. Cawood, 1 Swan, 148, 55 Am. Dec.
783, holding that recital in sheriff's deed as to date of conveyance will
prevail, though return states land to have been conveyed at date previous ;
Lea V. Maxwell, 1 Head, 369, holding validity of sale not impaired by fail-
*xrre of sheriff to sign return; Ballard v. Whitlock, 18 Gratt. 239, holding
valid, forthcoming bond with condition to deliver property levied on in
execution at a day later than the return day ; Allan v. Hoffman, 83 Va. 135,
2 S. E. 605, refusing to set aside sale made after death of execution debtor,
•where levy was made during his lifetime; Jackson v. Astor, 1 Pinn. 161,
89 Am. Dec 294, refusing to set aside, in collateral proceeding, an admin-
istrator's sale because of error in decree ordering sale ; dissenting opinion in
Borden v. State, 11 Ark. 564, Hazard v. Cole, 1 Idaho, 289, Whiting v.
Bradley, 2 N. H. 82 , Southern California Fruit Exch. v, Stamm, 64 Pac.
348 , Nelson v. Allen, 1 Terg. 368 , Leland v. Wilson, 34 Tex. 91 , and O'Ban-
non V. Saunders, 24 Gratt. 142, all arguendo.
Distinguished in Kelly v. Herrall, 10" Sawy. 172, 20 Fed. 371, under stat-
ute prescribing time within which sale must be made after levy ; Williams v.
Miller, 16 Conn. 148, where property sold was exempt from execution;
Adams v. Jeffries, 12 Ohio, 260, holding void, administrator's sale, made
under order of court, it not appearing that heirs were parties to pro-
ceedings. * . n'
Sal€s after the return day. Note, 15 Am. Dec. 528.
Power of officer after return day of writ, by venditioni exponas or
otherwise, to sell real or personal property. Note, 76 Am. Dec. 88.
peed made upon valuable consideration, which is actually paid, cannot
be considered conveyance to defraud creditors. *
Approved in Howland v. Donehoo, 141 Ga. 694, 82 S. E. 35, holding
sheriff's sale under execution valid ; Magniac v. Thompson, 1 Bald. 36^, Fed.
Cas. 8956, holding conveyance in consideration of future marriage not to be
fraudulent per se as against creditors; Ashby v. Steere, 2 Wood. & M. 356,
\
4 Wheat. 508-^18 NOTES ON U. S. REPORTS. 956
Fed. Cas. 576, holding conveyance to. one creditor as a preference was valid
as to creditor, although it operated to prevent debtor from obtaining dis-
charge in bankruptcy; Dardenne v. Hardwick, 9 Ark. 486, holding sale of
personal property valid although vendor was in fact insolvent, there being
no affirmative proof of fraud ; Hollister v. Loud, 2 Mich. 313, holding valid-
ity of assignment not affected by secret fraudulent intent of assignor, if
creditor acted in good faith.
Miscellaneous. Cited in Barclay v. Plant, 50 Ala. 518, to point that it is
essential, in order to pass title by sheriff's sale, that there should be a
legal judgment, an execution thereon, a levy and sale, and a deed; so also
in Sheriff v. Welbom, 14 S. C. &3.
4 Wheat. 508-513, 4 L. Ed. 627, SEBaEANT ▼. BIDDLE.
Deposittons taken under dedimus postestatem are not taken de bene esse,
whether parties reside beyond process of court or not.
Approved in Jones v. Railway Co., 3 Sawy. 527, Fed. Cas. 7486, denying
motion to suppress deposition taken under dedimus, because not taken ac-
cording to practice in de bene esse ; Russell v. McLellan, 3 Wood. & M. 161,
Fed. Cas. 12,158, holding that deposition may be taken without filing in-
terrogatories, customary in taking depositions, generally; Warren v.
Younger, 18 Fed. 862, holding that Circuit C(^irt sitting in State where
depositions can be taken only by commission, may provide for commission
under dedimus, regardless of restrictions as to use of depositions, de bene
esse; State v. Crocker, 5 Wyo. 398, 40 Pac, 684, arguendo.
Distinguished in Rhoades v. Selin, 4 Wash. 723, 724, 725, Fed. Cas.
11,740, under rule of Circuit Court in particular district.
4 Wheat. 513-518, 4 L. Ed. 628, BOTD ▼. aBAVEB.
Parol agreement between adjoining land owners, to employ surreyor
to determine division line when executed, is conclusive after twenty years*
acquiescence.
This rule has been afiSrmed in the following cases, holding that acquies-
cence in a boundary line for the period necessary to acquire title by adverse
possession, is conclusive against the party so acquiescing, and it is imma-
terial how far such boundary line may vary from the true line : Virginia v.
Tpnessee, 148 U. S. 522, 37 L. Ed. 544, 13 Sup. Ct. 736 ; Browne v. Leetle,
CiSawy. 338, 2 Fed. 446; Brown v. Cockrell, 33 Ala. 44; Sneed v. Osbom,
25 Cal. 627; Watrous v. Morrison, 33 Fla. 268, 89 Am. St. Rep. 14S,
14 South. 808; Sheldon v. Atkinson, 38 Kan. 18, 16 Pac. 70; Abbott v.
Abbott, 51 Me. 585 ; Gwynn v. Schwartz, 32 W. Va. 501, 9 S. E.- 885.
Approved in Maryland v. West Virginia, 217 U. S. 42, 54 L. Ed. 658. 30
^p. Ct. 268, holding valid "Deakins" or "old state" boundary line between
Maryland and West Virginia, run in 1788, and ever since recognized as
boundary; Kitchen v. Chantland, 130 Iowa, 624, 105 N. W. 368, parol
agreement fixing location of disputed boundary line followed by possession
is not invalid within statute of frauds; Hilton v. Duncan, 1 Cold. 318, and
957 PARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
St. Louis Univ. v. McCune, 28 Mo. 486, arguendo; Blair v. Smith, 16 Mo.
282, holding that such agreement is binding, if acquiesced in for a long
period although less than period which would ^aise bar under statute of
limitations.
Conclusiveness of established boundaries. Note, 110 Am. St. Bep. 680.
Necessity for color of title, not expressly made a condition by statute
in adverse possession. Note, 15 L. B. A. (N. S.) 1179.
Adverse possession due to ignorance or mistake as to boundary.
Note, 21 L. B. A. 834.
Parol agreement between adjoining land owners to employ surveyor to
determine division line, is not within statute of frauds.
Approved in Tonopah etc. Min. Co. v. Tonopah Min. Co., 125 Fed. 408,
holding w^en locator adopted side line of older claim as boundary, such
action was binding on him and subsequent grantees whether such line was
correct boundary or not; Lindsay v. Springer, 4 Harr. 550, holding that
such agreement executed and immediately followed by possession cannot
be controverted; dissenting opinion in Summerall v. Thomas, 3 Fla. 313,
majority holding void an agreement to divide the future issue of certain
slaves; Turner v. Baker, 64 Mo. 240, 27 Am. Bep. 235, holding action of
ejectment maintainable .under such agreement; so also in Sawyer v. Fel-
lows, 6 N. H. 108, 26 Am. Dec. 452; Orr v. Hadley, 36 N. H. 578, entertain-
ing action of trespass for breaking fence placed on line so fixed.
Distinguished in Lewis v. Ogram, 149 Cal. 509, 117 Am. St. Bep. 151,
10 L. B. A. (N. S.) 613, 87 Pac. 62, holding unenforceable written agree-
ment between coterminous owners, undertaking to establish, as boundary,
line they know to be false boundary.
Settlement of boundaries by parol. Note, 13 Am. Dec. 224.
Validity of parol submission to arbitration or parol award. Note,
Ann. Oas. 1913D, 204.
Parol agreement establishing boundary line as affected by statute of
frauds. Note, 8 Ann. Oas. 83.
4 Wheat. 518-715, 4 L. Ed. 629, TRUSTEES OF DABTMOUTH COLLEGE v.
WOODWABD.
Introduction.
Throughout the hundreds of references to this decision which dot the
pages of the reports and the paragraphs of the text-books, a frequent
epithet is *'the great case of Dartmouth College v. Woodward,'* or *'the
celebrated Dartmouth College Case." Even a casual exploration of the
perplexing labyrinth of subsequent cases wherein its holdings have been
applied or distinguished, according as a given state of facts has seemed to
necessitate judicial acquiescence or evasion, will leave one profoundly con-
vinced of the entire applicability of these terms. An opinion which ' * con-
tributed as much as any he ever delivered to the great reputation of Chief
Justice Marshall," Pearsall v. Great Northern Ry. Co., 161 U. S. 661, 40
L. Ed. 843, 16 Sup. Ct. 708, per Brown, J., is indisputably great. A case
4 Wheat. 618-715 NOTES ON U. S. REPORTS. ^ 958
calling forth one of 'the greatest speeches of the greatest of American
orators must of necessity be celebrated. But the profession has from the
first recognized in Dartmouth College v. Woodward, other and still larger
claims to fame. It is a leading case in the interpretation of the obligation
clause of the Federal Constitution; it ordained the broad remedial opera-
tion which the courts have ever since accorded that prohibition; and above
all and very unexpectedly, it extended the protecting arm of the Federal
Constitution to corporate charters, stripping the States of the power to
regulate and restrain these creatures of their legislative will.
Most familiar among the principles deemed to have been laid down, by
the College Case is the proposition that a corporate charter is a contract
within the protection of the Federal Constitution. It would seem strange
that the courts should still be discussing this simple doctrine. Surely, it
will be said, three-quarters of a century should suffice to establish and
define the application of so plain a proposition. Indeed the Supreme Court
has always and uniformly declared that Dartmouth College v. Woodward
did of itself settle this principle. This was the attitude of the court
seventy-five years ago ; then and since, it has always and very emphatically
refused to question its reasoning or reconsider its conclusion. ' * The doc-
trines of Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, an-
nounced by this court more than sixty years ago,'' observed Chief Justice
Waite, in Stone v. Mississippi, 101 U. S. 816, 25 L. Ed. 1079, ''have become
so imbedded in the jurisprudence of the United States as to make them to
all intents and purposes a part of the Constitution itself." And in one
of its references to the decision, the Supreme Court characterized it as a
"canon of American jurisprudence." Pearsall v. Great Northern Ry Co.,
161 U. S. 660, 40 L. Ed. 843, 16 Sup. Ct. 708. Yet it is certain that through-
out all this time counsel have felt justified in appealing to the Supreme
Court, case after case, challenging the Dartmouth College doctrine in one
or other of its phases. Again, it is beyond dispute that the opinions of
Chief Justice Waite himself mark him as one of the most assiduous and
ingenious of its enemies. And — ^most curious of all — ^we find this same
decision reversing a Circuit Court judgment and refusing to apply this
** canon of American jurisprudence" to a case which in the lower court
had been rested squarely on the Dartmouth College decision, the circuit
judge clinching the argument of his exhaustive opinion with the observa-
tion that a contrary conclusion would set at nought ''the decisions of the
Supreme Court from the Dartmouth College Case in 1819, to the case of
the Navigation Company in 1892." 73 Fed. 945. Clearly, it behooves the
profession to-day, notwithstanding the lapse of over ninety years since the
rendering of the decision, to watch closely the trend of judicial opinion
respecting it.
It is, of course, undeniable that the reservation of power to alter, amend
or repeal, now commonly attached to all charter grants, has robbed the
decision of much of its effect. Tet it must not hastily be argued from this
that for all practical purposes to-day and hereafter, the principle of the
College Case will be as if it had never been. A citation in the Tennessee
reports reveals a case in which a Tennessee railroad is to-day enjoying a
959 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
practical immunity from taxation by virtue of a charter granted in 1834:
Railroad Co. v. Harris, 99 Tenn. 692, 43 S. W. 117. And see State v. Bank
of Commerce, 95 Tenn. 226, 31 S. W. 995, Worth v. Railroad Co., 89 N. C.
300, 45 Am. Rep. 686, Alabama etc. It. R. Co. v. Burkett, 46 Ala. 578, Frank-
lin Co. Ct. V. Bank, 87 Ky. 381, 9 S. W. 214, Smith v. Lake etc. R. R. Co.,
72 N*. W. 329. And aside from the many existing corporations chartered
in an earlier day, when the reservation clause was less common, it does not
appear, but that some States are to-day endowing aggregations of men
with the necessary attributes of corporate existence without enforcing this
salutary stipulation ere the power to do so has been forever lost. Many
there are also who regard as dangerous the constant temptation to corrupt
lobbying for the procurement of corporate charters unhampered by legis-
lative restrictions^ which must always exist while the rule of Dartmouth
College V. Woodward continues to furnish so powerful a motive. But aside
from these considerations, it is believed that a reservation clause does not
wholly neutralize the effect of the college doctrine. And some expressions
in a recent decision of the Supreme Court, in which the opinion was de-
livered by Mr. Justice Brewer, seem to indicate that that tribunal is not
altogether unaware of the latent possibilities of the contract theory, not-
withstanding the customary reservation, or of .certain deductions which
may still be drawn therefrom for the better protection of corporations from
the action o:^ State legislatures : Reagan v. Farmers ' L. & T. Co., 154 U. S.
392, 38 L. Ed. 1022, 14 Sup. Ct. 1052. The decision in question involved
the validity of a schedule of rates promulgated by the railroad commission
of Texas for the railroads of that State. In attacking this schedule upon
the ground that it was unreasonable and confiscatory in character, no
ai^ument was drawn by counsel from any alleged impairment of the obli-
gation of the charter contract. The court itself, however, in supporting
its jurisdiction, intimated that there might be deduced from the charter an
implied agreement on the part of the State that the railroads should be
perm'itted to earn a reasonable profit, — a line of argument which has been
taken advantage of already in a later case. Capital City Gas Co. v. Dcs
Moines, 72 Fed. 831. Referring to the principle that a corporate charter
is a contract, and observing that the charter of the railroad in question
did not in terms endow the corporation with power to ^ fix its own rates,
Mr. Justice Brewer continued: ** Whether in the absence of an express
stipulation of that character, there is not implied in the grant of the right
to construct and operate, the grant of a right to charge and collect such
tolls as will enable the company to successfully operate the road and return
some profit to those who have invested their money in the construction,
is a question not as yet determined." To be sure this application of the
contract theory was suggested in the consideration of a mere jurisdictional
question, and perhaps possesses no significance whatsoever as indicative
of the attitude of the Supreme Court toward the college doctrine; yet it
serves as a reminder that, notwithstanding the customary reservation
clause, the relation between the State and the corporation is still deemed
eontractual, with all the consequences flowing therefrom.
4 Wheat. 518-716 NOTES ON U. S. REPORTS. 960
It may be that an eminent judge of the Supreme Court of Iowa was
right when he said: ''Disguise it as we may, the practical effect of the
Dartmouth College decision is to exalt the rights of the few above those
of the many. And it is doubtless true that under the authority of that
decision more monopolies have been created and perpetuated, and more
wrongs .and outrages upon the people effectuated, than by any other in-
strumentality in the government." Cole, J., in Dubuque v. Illinois Cen-
tral R. R. Co., 39 Iowa, 95, 96. Perhaps, also, the most persistent and
uncompromising of its opponents was justified in pronouncing it ^'a sub-
terfuge for fraud, and a means of shielding corporations from responsi-
bility and correction for the abuse of their corporate franchises." Bartley,
C. J., in Toledo Bank v. Bond, 1 Ohio St. 630. See also Attorney General
V, Railroad Co., 35 Wis. 569, Chenango etc. Co. v. Binghamton etc. Co.,
27 N. Y. 119, Dow v. Northern R. R. Co., 36 Atl. 525, 529, 530, 532, 537,
People V. Stephens, 62 Cal. 236, East St. Louis v. Oaa Co., 98 111. 443, 445.
Elsewhere the decision has been quite as emphatically approved. Conery
V. Water- Works Co., 41 La. Ann. 919, 7 South. 10, The Binghamton Bridge,
3 Wall. 73, 18 L. Ed. 142, Payne v. Baldwin, 3 Smedes & M. 675, Hamilton
V. Keith, 5 Bush (Ky.), 462. Nor is the present inquiry concerned, except
incidentally, with the proposition that a corporate charter is in any true
sense a contract between the State on the one hand and the corporators
on the other. There are those who think that Chief Justice Marshall did
not himself intend to affirm this principle, and that in declaring that "the
circumstances of this case ' ' constituted a contract, he was carefully refrain^
ing from the assertion of any such principle. Toledo Bank v. Bond, 1
Ohio St. 623, Ex parte Tate, 39 Ala. 263. It is also argued that a charter
is not a contract because it lacks the assent of two competent parties;
because there is no valuable consideration; no mutuality of obligation —
no obligation, for instance, on the corporation to carry out a single object
of its incorporation; and finally because a charter is a mere law and not
intended as a contract at all. Toledo Bank v. Bond, 1 Ohio St. 637. . But
see as to consideration, Pennsylvania College Cases, 13 Wall. 214, 20 L. Ed.
553.
But be the contract theory technically correct or otherwise, it is not
difficult to perceive wherein it has proved highly inexpedient, or to under-
stand the motive impelling its abrogation. Contrast for a moment the
legislative grant of a tract of land, and a similar grant of corporate fran-
chises. It was early decided that the former was a contract (Fletcher v.
Peck, 6 Or. 87, 3 L. Ed. 162) — an executed contract on the part of the
State. And while the propriety of considering it a contract at all has been
questioned, yet it cannot be doubted that the extension of the obligation
clause of the Federal Constitution to such grants at a time when there was
no Fourteenth Amendment prohibiting a deprivation of property^ has been
beneficial in securing the uniform observance of public faith. But there
is no impairment or diminution of sovereignty in such a grant. Title
passes, henceforth the land is B's and not A's; and B holds it subject to
the ordinary rules of law applicable to property owners within the State.
How different the grant of corporate franchises. Instead of a mere divesti-
961 DARTMOUTH COLLEGE v. WOODWARD. 4 Wlieat. 618-715
ture of property, the State here creates a new member of society, baptizing
it with human, and more than human fittribntes, and endowing it with
indefinite power of future good or evil. In the one case the act of the
State is of no more public importance than the transfer of a chattel; in
the other the sovereign summons into being an offspring]: with capacity for
industrial achievements far beyond that of any natural person. The one
is a mere transaction of the moment; the other the creation of what has
proved the most powerful and persistent economic agency in modern civil-
ization. Obviously there is ground for hostility to a doctrine which in
its full operation would deprive the State of much of its authority over
a progeny at once so important and so increasingly numerous.
It is difficult to escape the conviction that had the prohibition against
a deprivation of property been a port of the Federal Constitution at the
time of the Dartmouth College decision, the Supreme Court would never
have enunciated the doctrine that a corporate charter is a contract. In
the absence of such a prohibition it is not surprising that there should
be a disposition thus to extend the operation of the obligation clause to
cases falling properly under a provision prohibiting a taking of property
without due process of law. A decision in 1819, declaring that a charter
was not a contract, would have meant that, in the opinion of the court,
the Federal Constitution afforded no protection to the vested rights of
corporations; and it is not difficult to see why a Federal bench, consti-
tuted as was the Supreme Court at that time, should be unwilling to leave
interests so important to the mercies of the various State legislatures.
The adoption of the Fourteenth Amendment, however, has changed all this.
It affords as well to corporations as to individuals, protection against legis-
lation retroaeting upon past transactions in such a way as to deprive any
person of his property without due process of law. And above all, it does f
not, as docs the Dartmouth College rule, afford greater protection and
superior privileges to the artificial entities known as corporations, than
pertain under the ordinary rules of law to natural persons.
It may be admitted that it is questionable whether, in the absence of
constitutional amendment, the Supreme Court will ever formally declare
this the true delimitation of State power over corporate charters, although
one cannot but remark how steadily the decisions have drifted in that direc-
tion. See Pearsall v. Gt. Northern Ry., 161 U. S. 660, 40 L. Ed. 843, 16
Sup. St. 708. And yet it is by no means certain that such will not event-
ually be the established doctrine. Seventy years is not long in the life
of a people, nor of an instrument of government, intended as their per- /
petual heritage; and it cannot be said that so important a construction
of so important a clause in that instrument is secure beyond the possi-
bility of eventual overthrow, simply because it has already endured through
something more than the allotted span of a single human life.
Charter of Dartmouth Oolleffe, granted by English crown in 1709, con-
stitutes contract, which State of New Hampshire, as successor in sovereignty
to English crown, is prohibited from impairing, by contract obligation clause
of Federal Constitution.
1—61
4 Wheat. 51S-715 NOTES ON U. S. REPORTS. 9G2
That a charter ia a eontraet within the (>bligatioii daose, ia the piopoa-
tion which haa made the name and fame of Dartmouth College ¥» Wood-
ward. Notwithstanding the many limitations to which it has heen sub-
jected by later decisions, it still remains the coraprehcnsiTe goTerning
principle declared by the courts to be correct upon aathoritj or principle,
or bothy and enforced as the law of the land, "to all intents and purposes
a part of the Coi^titntion itself." Stone v. MississipfMy 101 U. S. 816,
25 L. Ed. 1079. That it is well settled— or at any rate declared to be so-
many cases attest. Brighton ▼. Wilkinson, 2 Allen, 29, Crease ▼. Babcock,
23 Pick. 340, 34 Am. Dec 03, Mathews ▼. St Louis & S. F. By. Co., 121
Mo. 310, 24 S. W. 594, Payne v. Baldwin, 3 Smedes & M. €75, St. John's
College V. State, 15 Md. 374, State v. Noyes, 47 Me. 206, Hamilton t. Keith,
5 Bush. (Ky.), 462, Eellum ▼. State, 66 Ind. 597, President etc. ▼. Trenton
City Bridge Co., 13 N. J. Eq. 49, People v. O 'Brien, 111 N. Y. 49, 7 Am. St
Bep. 702, 18 N. E. 702, Hays ▼. Commoni^alth, 82 Pa. St 523, Union Bank
V. The State, 9 Yerg. 494, Davis v. Gray, 16 WaU. 232, 21 L. Ed. 457,
Humphrey v. Pegues, 16 Wall. 249, 21 L. Ed. 327, Dart ▼. Houston, 22 Ga.
529, State Board of Assessors v. Patterson etc. R. R. Co., 50 N. J. L. 450,
14 Atl. 612, Edwards v. Kearzey, 96 U. S. 607, 24 L. Ed. 798, United States
V. Arrcdondo, 6 Pet 738, 8 L. Ed. 565, Central R. R. Co. ▼. Collins, 40 Ga.
624, University v. North Carolina R. R. Co., 76 N. C. 108, 22 Am. Rep. 674,
Atlantic R. R. ▼. Mingus, 7 N. M. 371, 34 Pac. 595, Martindale v. Moore,
3 Blackf. 280, Bruffett v. Great Western R. R. Co., 25 HI. 312, San Fran-
cisco v. Spring Valley W. W., 48 Cal. 520, Washington Bridge Co. v. State,
18 Conn. 64, Mobile v. Stonewall etc. Co., 53 Ala. 577. As was said hy
Gray, J., in the New York Court of Appeals but recently: '*The principle
enunciated has been steadily adhered to, despite criticisms," and in the
case there under consideration, counsel did not deem it worth while to
question it. Matter of the City of Brooklyn, 143 N. Y. 609, 38 N. E. 986.
The cases which in more recent years have cited the rule of the College
Case, have given it various applications, as will be seen by the following
illustrations; Blair v. Chicago, 201 U. S. 471, 50 L. Ed. 831, 26 Sup. Ct.
427, construing street railway franchise granted under Illinois acts of 1859
and 1865; Looker v. Maynard, 179 U. S. 51, 52, 54, 45 L. Ed. 81, 82, 21
Sup. Ct. 23, holding constitutional provision reserving right to alter, amend,
or repeal corporate charters authorizes acts permitting cumulative voting;
St. Louis etc. R. Co. v. Cross, 171 Fed. 490, holding invalid Act Okl. May
26, 1908, providing for forfeiture of charter of foreign corporation remov-
ing any suit to Federal court, as applied to railroad which was owner of
lines therein before Oklahoma became State; In re Western Bank & Trust
Co., 163 Fed. 716, holding corporation having special charter with banking
and trading privileges not within class of corporations mentioned in articles
647 and 664 of Rev. Stats. Tex. 1895 ; Ball v. Rutland R. Co., 93 Fed. 515,
holding charter provision giving railroad right to fix fares passes by sale
of company's property; Avondale Land Co. v. Shook, 170 Ala. 384, 54
South. 269, holding power to amend charter under Const. 1875, art. XIV,
§§1, 10, does not permit legislature to authorize corporation, by maj<Mity
vote of stockholders, to amend its charter so as to create new eontraet for
«
963 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
stoekholders; State v. Alabama Bible Society, 134 Ala. 634, 32 South. 1011,
holding where charter exempts corporation from taxation subsequent legis-
lation subjecting its property to taxation is void; Hot Springs Electric
Light Co. V. Hot Springs, 70 Ark. 303, 67 S. W. 762, holding city cannot
charge ground rent for poles where it gives, electric light company privi-
lege of erecting poles in streets for certain number of years ; Vincenheller
V. Reagan, 69 Ark. 474, 64 S. W. 284, upholding part of act of March 23,
1901, relative to University of Arkansas which abolished office of pomolo-
gist; Frackelton v. Masters, 249 HI. 38, 94 N. E. 127, holding invalid Act
June 14, 1909, attempting to extend jurisdiction of probate and county
courts to testamentary trusts ; Venner v. Chicago City Ry* Co., 246 111. 176,
1S8 Am. St. Rep. 229, 20 Ann. Oas. 607, 92 N. E. 646, holding statute requir-
ing corporations to keep correct books of account in State and to permit
their inspection by stockholders ; Deposit Bank of Owensboro v. Daviess Co.
etc., 102 Ky. 184, 185, 44 L. R. A. 825, 39 S. W. 1032, 1033, holding since
enactment of statute declaring that all subsequent charters may be repealed
latei act granting extension of corporate charter may be repealed; State
V. Railroad Co., 50 La. Ann. 1205, 56 L. R. A. 287, 24 South. 271, upholding
city ordinance requiring street-car companies to water tracks to lay the
dnst; Smith v. Lake Shore etc. R. Co., 114 Mich. 463, 72 N. W. 329, up-
holding Pub. Acts 1891, No. 90, requiring railroads to sell one thousand
mile tickets at certain rates; Gregg v. Granby Mining & Smelting Co., 164
Mo. 627, 65 S. W. 314, upholding cumulative voting law ; Watson Seminary
V. County Court of Pike Co., 149 Mo. 65, 67, 72, 45 L. R. A. 675, 50 S. W.
882, 883, 884, holding act of 1859, repealing part of act of January 25,
1847, does not impair contracts, as it concerns only appropriation of public
funds for public institution; Somerville v. St. Louis Mining etc. Co., 46
Mont. 274, L. R. A. 1915B, 811, 127 Pac. 465, holding Civ. Code 1895, § 511,
authorizing corporation previously formed to render its stock assessable,
with consent of stockholders of two-thirds of stock; Allen v. Ajax Min.
Co., 30 Mont. 502, 77 Pac. 48, as to corporation organized in 1889, act of
1899, conferring on corporation right to sell its property on vote of two-
thirds of stockholders, was not void; State v. Wildes, 34 Nev. 124, 116
^ Pac. 600, holding invalid Stats. 1911, c. 150, § 79, providing that state bank
examiner shall take possession of property and accounts of any bank in
custody of receiver; Golden v. Averill, 31 Nev. 265, 101 Pac. 1027, holding
proceeding for receivership of bank void as being upon insufficient notice;
Skaneateles W. W. Co. v. Village of Skaneateles, 161 N. Y. 166, 46 L. R. A.
.687, 55 N. E. 565, holding void acts permitting city to erect its own water-
works; Northwestern Tel.- Ex. Co. v. Anderson, 12 N. D. 590, 102 Am. St.
Rep. 589, 65 L. R. A. 771, 98 N. W. 708, detertnining relative rights of tele-
phone company and house-movers; Lomtsen v. Union Fisherman's Co-op.
Packing Co., 71 Or. 544, 143 Pac. 623, holding Act February 20, 1913, for-
bidding use of term '^ co-operative" as business name unless user has com-
plied with L. O. L., §§ 6766-6783, invalid as applied to corporation pre-
viously organized; MacDonald v. New York etc. R. R. Co., 23 R. I. 562,
51 Atl. 580, holding charter of railroad granted prior to Pub. Laws, p. 65,
could not be amended without its consent; Garey v. St. Joe Mining Co.,
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 964
32 Utah, 505, 12 L. B. A. (N. S.) 554, 91 Pac. 371, holding invalid statute
authorizing majority stockholders to amend articles against consent of
minority, so as to make nonassessable full-paid capital stock assessable;
Dem V. Salt Lake City R. R. Co., 19 Utah, 60, 56 Pac. 559, holding city
may waive breach of conditions of franchise; State v. Irvine, 14 Wyo. 374,
84 Pac. 101, Wyoming Agricultural College created by act of 1891 was
public corporation, and State could repeal act incorporating it; dissenting
opinion in Town of New Decatur v. American Tel. & Tel. Co., 176 Ala. 509,
517, 518, Ann. Gas. 1915A, 875, 58 South. 618, 621, majority holding cause'
of action stated against city, which showed that city, by ordinance, granted
franchise to tel^hone company, providing therein that company should
be subject to all future ordinances, and that city subsequently passed ordi-
nance repealing franchise ordinance; dissenting opinion in Wood v. South-
em Mutual Ins. Co., 112 Ga. 593, 596, 37 S. E. 901, 902, holding charter of
Southern Mutual Insurance Company a contract; dissenting opinion in
People V. Rose, 207 111. 367, 69 N. E. 767, majority upholding Laws 1901,
p. 124, providing for forfeiture of corporate charter on failure to make
report provided therein; dissenting opinion in Metcalfe v. Union Trust
Co., 181 N. Y. 60, 73 N. E. 505, majority holding trust fund created by will
to provide income for wife until sl^e should remarry, release of remainder
to her by children did not terminate trust under act of 1897, where will
made in 1892, in which year testator died; dissenting opinion in White v.
Auditor, 126 N. C. 611, 36 S. E. 144, majority upholding acts 1899, chapter
19, relative to inspector of oyster fisheries; dissenting opinion in State v.
Cantwell, 142 N. C. 616, 9 Ann. Gas. 141, 8 L. B. A. (N. S.) 498, 55 S. E.
824, majority holding legislature may rep^l provision exempting active
members of fire companies from jury service; dissenting opinion in Moser
V. Philadelphia etc. R. Co., 233 Pa. 279, 40 L. R. A. (N. S.) 1519, 82 AtL
370, majority holding, where railroad is leased, suit cannot thereafter be*
maintained against lessor to force construction of siding; dissenting opinion
in Minneapolis etc. Ry. Co. v. Menasha Wooden Ware Co., 159 Wis. 139,
L. R. A. 1915F, 732, 150 N. W. 414, majority holding contract between rail-
road and shipper, fixing rates for transportation, is annulled by company
filing tariffs covering rates for freight included in contract.
Distinguished in Louisville etc. R. Co. v. State, 154 Ala. 212, 45 South.
303, holding railway charter granted before Constitution reserving right
to amend subject to amendment where corporation enjoyed benefits of Code
1896, § § 1170, 1171, enacted after charter was granted ; Bernstein v. Kap-
lan, 150 Ala. 225, 43 South. 582, holding that under general incorporation
act granting power to change location of principal office, business may be
changed to another city; Morrow v. Superior Court, 2 Cal. Unrep. 128, 129,
holding corporation organized **under general laws" is, by virtue of article
IV, section 31, of former Constitution, subject to subsequent constitutional
and legislative enactments; Washington v. Atlantic Coast Line R. Co., 136
Ga. 647, 38 L. R. A. (N. S.) 867, 71 S. E. 1070, upholding Civil Code 1910,
§ 2785, relating to railroad employer's liability for injury to employees ;
White V. Davis, 134 Ga. 278, 67 S. E. 719, holding, in absence of constitu-
tional provision or legislation, Superior Court cannot accept Voluntary snr-
\ »
•
966 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
render of charter of private corporation; People v. Rose, 207 111. 358, 69
N. E. 764, upholding Laws 1901, p. 124, providing for forfeiture of corpo-
rate charter on failure to make report provided therein; Supreme Council
etc. V. Logsdon, 183 Ind. 191, 193, 108 N. E. 590, 591, holding where special
charter reserved right to amend, legislature may adopt statutes declaring
changes in by-laws ineffectual unless attached to certificate; State v. Des
Moines City Ry. Co., 159 Iowa, 275, 278, 140 N. W. 444, 445, holding street
railway franchise should be strictly construed; McGuire v. Chicago etc.
Ry. Co., 131 Iowa, 379, 33 L. R. A. (N. S.) 706, 108 N. W. 916, holding
State may pass regulatory legislation binding on foreign and domestic cor-
]X>rations, regardless of whether right of charter amendment was reserved ;
German Ins. Co. v. ComnJonwealth, 141 Ky. 611, 133 S. W. 795, holding
Const., § 192, and Ky, Stats., § 567, prohibiting corporation from holding
longer than five years any but necessary realty, under penalty of escheats,
did not impair rights of insurance company chartered to hold, etc., real
property; Ver Steeg v. Wabash R. Co., 250 Mo. 76, 156 S. W. 692, holding,
under facts, railroad did not acquire irrevocable right to use street by
franchise from State to construct and operate railroad thereon; Dow v.
Railroad Co., 67 N. H. 53, 62, 36 Atl. 537, 542, holding lease of railroad is
invalid as against dissenting stockholders though prior to lease a statute
was passed authorizing such lease ; Inhabitants of Phillipsburg v. Board of
Public Utility Commissioners, 85 N. J. L. 144, 88 Atl. 1097, holding jiower
conferred upon town to regulate exercise of railroad within town may be
lepealed, although town passed ordinance which railroad accepted as con-
dition upon which it might exercise its franchise ; In re New York Electric
Lines Co., 201 N. Y. 331, 94 N. E. 1059, holding city may revoke permit to
use streets for underground system of electric conductors before work haS'
been done under it ; Lord v. Equitable Life Assur. Soc, 194 N. Y. 221, 224,
233, 22 L. B. A. (N. S.) 420, 87 N. fl. 446, 447, 450, upholding Laws 1906,
p. 763, c. 326, providing for mutualization of stock life insurance company,
as applied to company organized under Laws 1853, as amended by Laws
38Q5, and providing in its charter for different method of mutualization;
People V. Gass, 190 N. Y. 327, 123 Am. St. Rep. 549, 13 Ann. Gas. 678, 83
N. E. 65, holding that where constitutional provision gives legislature right
to amen4 corporation charters, exemption from taxation granted in charter
may be repealed ; Noble State Bank v. Haskell, 22 Okl. 58, 59, 97 Pac. 595,
upholding act December 17, 1907, as amended February 12, 1908, estab-
lishing depositors' guaranty fund to insure depositors against loss when
bank becomes insolvent; City of Joseph v. Joseph Waterworks Co., 57 Or.
591, 111 Pac. 865, holding, where municipality granted water company
in one section of franchise unlimited rights to lay pipes, and in another
section limited this right to fifteen years, limitation will be upheld; Bacon
V. Boston & M. R. R., 83 Vt. 452, 76 Atl. 142, holding Public Service Cora-
mission may require railroad to remove its tracks further from its station ;
State V. Northern Pac. Ry. Co., 157 Wis. 92, 147 N. W. 227, holding under
section 1829, Rev. Stats. 1878, railroad corporations existing under special
laws possess all powers conferred upon similar corporations existing under
general laws; Milwaukee Electric Ry. etc. Co. v. Railroad Commission, 153
4 Wheat. 51S-715 >^OTES ON U. S. REPORTS. 966
Wi8. 619, 620, Ann. Oaa. 1915A, 911, L. R. A. 1916P, 744, 142 N. W. 499,
holding that where city granted franchise for street railway providing that
certain fare be charged, Wisconsin railway commission may later reduce
such fare; McKinley Telephone Co. v. Cumberland Telephone Co., 152
Wis. 365, 140 N. W. 41, where competing telephone companies contracted
to confine their business, one to city and one to country, with free con-
nection, and latter has option to buy rural lines of other, latter may en-
force agreement to sell; dissenting opinion in Owensboro v. Cumberland
Tel. & Tel. Co., 230 U. S. 78, 57 L. Ed. 1398, 33 Sup. Ct. 988, majority hold-
ing general authority given by city charter to make and repeal all ordi-
nances for purpose of regulating streets is not reservation of power to re-
voke contractual rights which vested under ordinance giving telephone
company right to maintain polls and wires in streets; dissenting opinion
in Avondale Land Co. v. ^Shook, 170 Ala. 386, 387, 54 South. 270, majority
holding power to amend charter under Const. 1875, art. XIV, §§1, 10, does
not permit legislature to authorize corporation, by majority vote of stock-
holders, to amend its charter so as to create new contract for stockholders;
dissenting opinion in Vincenheller v. Reagan, 69 Ark. 479, 64 S. W. 287,
majority upholding part of act of March 23, 1901, relative to University of
Arkansas, which abolished office of pomologist ; dissenting opinion in State
V. Railroad Commission, 140 Wis. 174, 121 N. W. 932, majority holding
State Railroad Commission cannot compel railroad whose road is crossed
by another to pay half expense of crossing; dissenting opinion in Biyan
V. Patrick, 124 N. C. 660, 33 S. E. 159, arguendo.
Proceeding now to a further consideration of those citing cases which
apply this rule, it may be noted that decisions are not wanting in which its
operation has been both equitable and salutary. As witness the case of
an incorporated negro church, which a city ordinance sought to subject to
the domination of another oi^anizatioi^ composed of whites, the ordinance
being declared invalid as impairing the obligation of the charter contract.
African Church v. New Orleans, 15 La. Ann. 445, 446. And doubtless,
too, the application of this docjtrine has often been effective in annuling
enactments of State legislatures of questionable wisdom, if not arbi-
trary and unfair. As an illustration of which may, perhaps, be cited the
case of a municipal water company exempted by its charter from taxation,
in consideration of the furnishing of water to the city gratis, the legis-
lature thereafter seeking both to enforcs the tax and compel the continued
furnishing of water to the city free of charge, Conery v. Waterworks, 41
La. Ann. 919, 7 South. 10 ; the attempt of the New York city common coun-
cil to exact a "license fee" of four hundred and fifty dollars per car annu-
ally, for the running of street-cars, having previously validly granted to
the street railroad company a franchise to operate its cars upon certain
streets of the city. New York v. Second Avenue R. R. Co.^ 32 N. 15r. 272;
as also the case where a legislature having granted to A certain lands
below high-water mark for wharf purposes, sought thereafter to cut off
A from access to the water by a subsequent grant to B of land still fur-
ther out, Langdon v. Mayor, 93 N. Y. 158; or having granted lands to one
educational institution, sought afterward to vest them in another. Gram-
067 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 51^^715
mar School v. Burt, U Vt. 641, Grammar School v. Bailey, 62 Vt. 476, 20
Atl. 822. Though some of these latter cases would seem to disclose An
executed grant rather than a term of an executory contract; and to be
analogous, therefore, to the class of cases represented by Fletcher v. Peck,
6 Cr. 87, 3 L. Ed. 162. Indeed, it would seem to be true from an exam-
ination of the citations that the great majority of the cases in which the
legislation annulled was clearly inequitable and vexatious, are of this latter
order and not properly founded upon the doctrine of the College Case at
all: Railroad Co. v. City, 46 La. Ann. 529, 15 South. 158; St. John's
College V. State, 15 Md. 374; Langdon v. Mayor etc., -03 N. Y. 158; Stephen
V. Marshall, 3 Pinn. 207; Edwards v. Jagers, 19 Ind. 413; Beckwith v.
Rector etc., 69 Ga. 574; Hudson TeL Co. v. Jersey City, 49 N. J. L. 305,
60 Am. Rep. 621, 8 Atl. 124.
The citations show that a surprisingly large number of the cases in which
charter stipulations have been enforced against the State because contractual
under the doctrine of the leading case are eases in which the States hav-
ing rashly bargained away their taxing power, seek subsequently to compel
the payment of taxes by corporations thus specially privileged. The R^ad*
ing cases affirming the inviolability of such a charter stipulation is Piqua
Branch Bank v. Knoop, decided by the Supreme Court of the United States,
in 1853, 16 How. 382, 389, 14 L. Ed. 982, 985. An Ohio statute of 1845,
respecting the formation and management of State banking institutions,
and in accordance with the provisions of which plaintiff in error was organ-
ized, provided that six per cent of the total dividend annually declared,
should be paid over to the State and should be "in lieu of all taxes." A
law of 1851 sought to abrogate this provision and bring such banking insti-
tutions under the general law as to taxation. This enactment of 1851 was
upheld as valid by the State Supreme Court. It seems not improbable
that they expected the national Supreme Court to af&rm this conclusion,
for that tribunal had already embraced one opportunity to counteract some,
of the effects of the Dartmouth College doctrine (Charles River Bridge v.
Warren Bridge, 11 Pet. 420, 9 L. Ed. 773) ; and might well have been ex-
pected to avail themselves of another, by indorsing the not unreasonable
theory that the State legislature was without power thus to barter away
the sovereign power of taxation. In this expectation, however, if such
were entertained, they were disappointed. The majority of the Supreme
Court of the United States declared that the question had been settled by
Dartmouth College v. Woodward, and held the law unconstitutional because
impairing the obligation of the charter contract.
The dissent was vigorous, but was then, and has since been, always un-
availing. "I will not say," observed Mr. Justice Campbell, in his dissent-
ing opinion, ''that a contract may not be contained in a law, but the prac-
tice is not to be encouraged, and the courts discourage the interpretation
which discovers them": 16 How. 407, 14 L. Ed. 993. In this case, how-
ever, the stipulation was too explicit for this principle to avail, and chief
stress was accordingly laid upon the argument, advanced and supported
with much earnestness, that the taxing power was an attribute of sov-
ereignty not to be impaired or frittered away by the intemperate acts of
4 Wheat. 618-716 NOTES ON U. S. REPORTS. 968
sacceeding legislatures. Sixteen years later the question was not at rest,
as vw^itness the strong dissenting opinion of Mr. Justice Miller, concurred
in by Chase, C. J., and Field, J., in a case involving the point. "We do.
not believe," said that learned judge, "that any legislative body, sitting
under a State Constitution of the usual character, has a right to sell, to
give, or to bargain away forever, the taxing power of the State. Jhis is
a power which, in modern political societies, is absolutely necessary to
the continued existence of every such society. While under such forms
of government, the ancient chiefs or heads of the government might carry
it on by revenue owned by them personally, rfnd by exaction of personal
service from their subjects, no civilized government has ever existed that
did not depend upon taxation in some form for the continuance of that
existence. To hold, then, that anyone of the annual legislatures can, by
contract, deprive the State forever of the power of taxation, is to hold
that they can destroy the governihent which they are appointed to serve,
and that their action in that regard is strictly lawful. It cannot be main-
tained that this power to bargain away, for an unlimited time, the right
of taxation, if it exist at all, is limited in reference to the subjects of taxa-
tion. In all the discussidn of this question, in this court and elsewhere,
no such limitation has been claimed. If the legislature can exempt, in
perpetuity, one piece of land, it can exempt all land. If it can exempt all
land it can exempt all property. It can, as well, exempt persons as cor-
porations. And no hindrance can be seen in the principle adopted by
the court, to rich corporations, as railways and express companies, or rich
men, making contracts with the legislatures, as they best may, and with
such appliances as it is known they do use, for perpetual exemption from
all the burdens of supporting the government. The result of such a prin-
ciple, under the growing tendency to special and partial legislation, would
be, to exempt the rich from taxation and cast all the burden of the sup-
port of government and the payment of its debts, on those who are too
poor or too honest to purchase such immunity. With as full respect for
the authority of former decisions, as belongs, from teaching and habit,
to judges trained in the common-law system of jurisprudence, we think
there may be questions touching the powers of legislative bodies, which
can never be finally closed by the decisions of a court, and that the one
we have here considered is of this character": Washington University v.
Rouse, 8 Wall. 443, 444, 19 L. Ed. 500. And see Debolt v, Ohio Life Ins.
Co., 1 Ohio St. 585.
As has been said, these arguments have not prevailed, and the rule laid
down in the Ohio case has been uniformly adhered to: Dodge v. Woolsey,
18 How. 378, 15 L. Ed. 421, Memphis v. Bank etc. Co., 91 Tenn. 549, 19
S. W. 759, Farrington v. '^ennessee, 95 U. S. 683, 24 L. Ed. 559, State v.
Bank of Commerce, 95 Tenn. 226, 31 S. W. 995, State v. Commercial Bank,
7 Ohio (pt. I), 128, Matheny v. Golden, 5 Ohio St. 385, 427, Appeal Tax
Court V. Patterson, 50 Md. 372, Union Bank v. State, 9 Yerg. 494, Rail-
road Co. V. Hicks, 9 Baxt. 445, People v. Soldiers' Home, 95 111. 668, State
V. Branin, 23 N. J. L. 492, 500, Worth v. Railroad Co., 89 N. C. 300, 45
Am. Rep. 686, Seymour v. Hartford, 21 Conn. 486, State v. Douglas, 34
969 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
tf. J. L. 85, Franklin County Court v. Deposit Bank, 87 Ky. 381, 9 S. W.
214, Rector v. Philadelphia, 24 How. 300, 16 L. Ed. 602, Home of the
Friendless v. Roul, 8 Wall. 437, 19 L. Ed. 497, Asylum v. New Orleans,
106 U. S. 368, 26 L. Ed. 1130, St. Paul etc. R. R. Co. v. Parcher, 14 Minn.
327, Daughdrill v. Insurance Co., 31 Ala. 98, Washington University v.
Rouse, 8 Wall. 439, 19 L. Ed. 498, Conery v. Water Works, 41 La. lAnn.'919,
7 South. 10, Hewitt v. New York etc. R. R. Co., 12 Blatchf. 461, Fed. Cas.
6443. And see State v. County Court, 19 Ark. 367, holding that an exemp-
tion of certain lands from taxation for a period of ten years might not be
abrogated by a subsequent l^slature before the end of that time. The
Supreme Court of Ohio clung with especial tenacity to the contrary doc-
trine : Skelly v. Jefferson Branch Bank, 9 Ohio St. 622, 623 ; Milan Plank-
road Co. V. Husted, 3 Ohio St. 583. The serious consequences possibly
attendant upon this rule have, however, ^een greatly mitigated by the
establishment of the proposition that when the exemption from taxation
is not created contemporaneously with the corporation itself, it must be
supported by some distinct valuable consideration, or is invalid (see infra,
p. 926) ; and by the very rigorous application of the rule of strict con-
struction, hinted at by Mr. Justice Campbell, in Piqua Bank v. Kuoop,
supra (infra, p. 933). It has been held also that this exemption does not
prevent another State from taxing such corporate shares in the hands of
its own residents: Appeal Tax Court v. Patterson. 50 Md. 372.
These charter exemptions from taxation have been frequent in the case
of banks (Union Bank v. State, 9 Yerg. 494; Memphis v. Bank etc. Cos.,
91 Tenn. 549, 19 S. W. 759 ; State v. Bank of Commerce, 95 Tenn. 226, 31
S. W. 995 ; JPiqua etc. Bank v. Knoop, 16 How. 382, 14 L. Ed. 982; s. c,
1 Ohio St. 618, 629, 661, 690; State v. Commercial Bank, 7 Ohio (pt. I),
128; Commonwealth v. Farmers' etc. Bank, 97 Ky. 622, 623, 31 S. W. 1020,
1021; Judson v. State, Minor, 155); and of railroad corporations (Worth
V. Railroad Co., 89 N. C. 300, 45 Am. Rep. 686; Railroad Co. v. Hicks, 9
Baxt. 445; Gt)ldsmith v. Augusta etc. R. R. Co., 62 Ga. 481; Railroad Co.
V. Harris, 99 Tenn. 692, 43 S. W. 117; State v. Douglas, 34 N. J. L. 85; St.
Paul etc. R. R. Co. v. Parcher, 14 Minn. 327; Hewitt v. New York etc. R. R.
Co., 12 Blatchf. 461, Fed. C/is. 6443 ; State v. Branin, 23 N. J. L. 492, 500 ;
Northern Pacific R. R. Co. v. Carland, 5 Mont. 182, 3 Pac. 153) ; and the
exemption has been held to survive in favor of the purchaser of such a
railroad at -foreclosure sale: Railroad Co. v. Hicks, 9 Baxt. 445. But see
State V. Bank of Commerce, 95 Tenn. 226, 31 S. W. 995. An exemption
of the property of a charitable corporation from taxation includes prop-
erty such as a cotton-press, used for commercial purposes : Asylum v. New
Orleans, 105 JJ. S. 368, 26 L. Ed. 1130; s. c, 31 La. Ann. 295. In Tennes-
see an exemption from taxation of land devoted to educational purposes
has even been held to follow such lands into other hands (State v. Whit-
worth, 8 Lea. 603) ; and elsewhere to extend to the stock as well as the
property of a corporation so favored (State v. Branin, 23 N. J. L. 492,
500; Farrington v. Tennessee, 95 U. S. 683, 24 L. Ed. 559; Memphis v.
Bank etc. Cos., 91 Tenn. 549, 19 S. W. 759) ; although a slight difference
in the phraseology of the incorporating statute has been made the gi'ound
\
4 Wheat. 618-715 NOTES ON U. S. REPORTS. 970
of a contrary holding: State v. Bank of Commerce, 95 Tenn. 226, 31 S. W.
995.
Aside from the foregoing tax cases the citations show others respecting
various matters, in which charter gprants and stipulations have been held
inviolable. In several cases charter grants of land to quasi-public educa-
tional or other charitable institutions, by way of endowment, have been
protected in the face of subsequent legislation seeking to transfer them
to other uses or to another institution of the same nature (Grammar School
V. Bailey, 62 Vt. 476, 20 Atl. 822, Beckwith v. Rector etc., 69 Ga. 574,
Society etc. v. New Haven, 8 Wheat. 481, 6 L. Ed. 666; Magill v. Brown,
16 Fed. Gas. 419, Grammar School v. Burt, 11 Vt. 641, Downing v. Board
of Agriculture, 129 Ind. 449, 28 N. E. 125, Vincennes University v. State^
14 How. 276, 281, 14 L. Ed. 419, 421, Board of Education v. Bakewell, 122
111. 344, 10 N. E. 381) ; or to transfer them to the general school fund :
Graded School District v. Trustees, 95 Ky. 443, 26 S. W. 10 ; Edwards v.
Jagers, 19 Ind. 413; Liggett v. Ladd, 17 Or. 100, 21 Pac. 137. But if such
a transfer be sought by the trustees themselves, the Dartmouth College
rule has been held inapplicable and the transfer valid: Ex parte Green-
ville Academies, 7 Rich. Eq. 484. So also tlie doctrine has been invoked
to annul attempts of the States to take from a railroad part of a previous
land grant : Davis v. Gray, 16 Wall. 232, 21 L. Ed. 467, Humphrey v. Pequcs,
16 Wall. 249, 21 L. Ed. 327, Hailroad Co. v. Commission etc., 36 Tex. 433,
434. And to repeal an irrepealable corporate charter: Bruffett v. Great
Western R. R. Co., 25 111. 312. Again the principle has been held to pre-
vent the repeal of a law authorizing a turnpike company to exact tolls of
mail carriages, though the grant rested upon no valuable cqnsideration :
Derby Turnpike Co. v. Parks, 10 Conn. 541, 542, 27 Am. Dec. 704.
Other cases deal wit^ attempts to change the method of administering
charitable trusts by changes in the board of trustees similar to that at-
tempted in the leading case, and the like; and the courts have found no
difficulty in annulling those attempts upon the authority of Dartmouth Col-
lege V. Woodward : Brown v. Hummel, 6 Pa. St. 93, 47 Am. Dec. 436, State
V. Heyward, 3 Rich. 409, Sheriff v. Lowndes, 16 Md. 376, State v. Adams,
44 Mo. 576, 586, Inglis v. SaUors' Snug Harbor, 3 Pet. 153, 7 L. Ed. 636,
African Church v. New Orleans, 15 La. Ann. 445, 446, Ohio v. Neff, 52
Ohio St. 404, 405, 40 N. E. 724, Lewis v. Whittle, 77 Va.' 419, Montpelier
Academy Trustees v. George, 14 La. 409, S3 Am. Dec. 691, State v. Adams,
44 Mo. 576, Regents of University of Maryland v. Williams, 9 Gill & J.
403, 31 Am. Dec. 92, Louisville v. University of Louisville, 15 B. Mon. 669,
681, 686, 689, 692, 693, 718, 729. In Maryland it has been decided that a
grant of eight thousand dollars, annuitlly, contained in a charter incorpo-
rating St. John's College in the early part of the century, was a contract
and could not subsequently be revoked: St. John's College v. State, 15 Md.
374, Mayor v. State, 15 Md. 384, 385, 386, 387.
A bank with a charter right to discount and transfer notes is not
amenable to a subsequent law prohibiting the indorsement and transfer
of notes by a bank : Planters' Bank v. Sharp, 6 How. 331, 332, 337, 12 L. Ed.
460, 462. A law requiring intersecting railroads so to time their trains as
971 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
to connect was evaded by a railroad company which had, by its charter^
the right to operate its own road, being required, by thut instrument, only
to connect with trains extending beyond its own lines: State v. Nowes, 47
Me. 206. Railroads have escaped State regulation of rates of fare on the
strength of charter stipulations conferring the right to establish their own
rates: Farmers' L. & T. Co. v. Stone, 20 Fed. 274, Illinois etc. R. R. Co. v.
Stone, 20 Fed. 472, Central etc. Cq. v. Citizens' Ry. Co., 82 Fed. 5, Indian-
apolis v. Central etc. Co., 83 Fed. 532, Philadelphia etc R. R. Co. v. Bowers,
4 Houst. 529. A stipulation in a water company's charter /to the effect
that the city might purchase the plant at the end of thirty-five years is
a contract which may not be impaired by a subsequent legislature: Sala v.
New Orleans, 2 Woods, 194, Fed. Cas. 12,246. In at least three instances
provisions of a subsequent law allowing cumulative voting of stock in the
election of directors have been held invalid when applied to corporations
previously organized : Hays v. Commonwealth, 82 Pa. St. 523, State ex rel.
V. Greer, 78 Mo. 191, Smith v. Atchison etc. R. R. Co., 64 Fed. 275. So
also laws requiring a two-thirds majority in the election of corporate offi-
cers: Allen v. McKean, 1 Sumn. 297, Fed. Cas. 229. Other citations estab-
lish the proposition that statutes allowing the recovery of damages from
a corporation for acts authorized by previous legislation, arc invalid and
rest the rule upon the doctrine of the principal case: Bailey v. Railroad
Co., 4 Harr. 401, 44 Am. Doc. 603, Stephens v. Marshall, 3 Pinn. 207, Pritt
v. Brown, 3 Wis. 611. And a Connecticut case has annulled an attempt
to require a company authorized to maintain a permanent bridge, to erect
a draw-bridge: Washington Bridge Cb. v. State, 18 Conn. 64.
There are several examples among the citations, of municipal ordinances
annulled because impairing rights declared to have vested by contract. As
witness the case where the city of St. Louis sought ineffectually to revoke
a grant of certain subway spaces in its streets for telephone and telegraph
wires (State ex rel. v. St. Louis, 145 Mo. 591, 46 S. W. 993) ; as also a case
where the council of Jersey City similarly attempted to rescind a grant of
a license to erect telephone poles on the city streets, after the bond required
of the licensee had been filed (Hudson Tel. Co.V. Jersey City, 49 N. J. L.
305, 60 Am. Rep. 621, 8 Atl. 124) ; and the equally futile attempt of the
New York city council to ** license" the street-cars of a company which
was already authorized by valid contract with the city to operate them
upon its streets (New York v. Second Avenue R. R. Co., 32 N. Y. 272) ; as
also the effort of a Texas municipality to repeal a valid grant of a fran-
chise for a street railroad (Mayor etc. v. Houston St. Ry. Co., 83 Tex. 555,
29 Am. St. Rep. 685, 19 S. W. 129) ; of the city of New Orleans to with-
draw a grant of a right of way through its streets (Railroad Co. v. City,
46 La.* Ann. 529, 15 South. 158) ; and levy a tax upon telephone poles pre-
viously erected under valid license from the nsity (City v. Telephone Co.,
40 La. Ann. 45, 3 South. 535); see also Conery v. Water-Works Co., 41
La. Ann. 919, 7 South. 10; and of another municipality to restrict the right
of a gas company which had previously been authorized to lay and repair
its pipes upon the public streets (Indianapolis v. Consumers' Qas Co., 140
Ind. 114, 49 Am. 8t. Rep. 188, 39 N. E. 436) ; but a municipality may exact
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 972
f
a tax for poles erected prior to the passage of an ordinance fixing another
method of compensation to the city: St. Louis v. Western Union Tel. Co.,
148 U. S. 103, 37 L. Ed. 385, 13 Sup. Ct. 489.
Several cases are of more than ordinary interest as illustrating the
various possibilities of the rule and its operation, under different circum-
stances. The case of the Binghamton Bridge was decided by the Supreme
Court of the United States, in 1865 : 3 ^Yall. 73, 18 L. Ed. 142. There the
question was whether the legislature might validly authorize the erection
of another bridge across the Hudson river in proximity to the Binghamton
Bridge. The Supreme Court had already declared in the case of Charles
River Bridg^e v. Warren Bridge, 11 Pet. 582, 645, 9 L. Ed. 838, 863, that
the granting of a franchise to one company implied no prohibition upon
the subsequent chartering of another at practically the same place and for
the same purpose. In the Binghamton Bridge Case, however, the incorpo-
rating act declared that '4t shall not be lawful for any person or persons
to erect any bridge within two miles" along the river, either above or
below. •A majority of the court held that this amounted to a contract
stipulation on the part of the State, and estopped the legislature from
thereafter violating its terms. The dissenting judge (Chase, C. J., Field
>and Grier, JJ.)» were for holding that such charter provisions should be
strictly construed in favor of the people and against the <)reation of a
monopoly; and that the words quoted above were a prohibition not upon
the State, but upon individuals only. A somewhat cuiioua case is Canal
Co. V. RaUroad Co., 4 Gill & J. 108, 122, 146, 191, decided in 1832. The
Canal Company was incorporated for the purpose of building a canal along
the Potomac, with power to condemn lands along the river for that purpose.
A railroad company subsequently incorporated was granted a right of way
along the river bank for a certain distance. The Canal Company supported
an application for an injunction against the railroad by proof that the
formation of .the river bank in many places was such that if a railroad was
allowed to establish its road first, it would be well nigh impossible for the
canal to be built at those points at all. In granting the relief demanded
th^ court held that the Canal Company had by its charter a vested right
to acquire land along the river bank by purchase and eminent domain^ and
that this right was inviolable under the Dartmouth College rule.
Some of the earlier cases which the courts found to be within the doc-
trine of Dartmouth Coll*»ge v. Woodward would probably be otherwise
decided to-day. Such, for instance, is an Indiana case sustaining the right
of a corporation under its charter to conduct a lottery, in the face of a
subsequent prohibiting statute ; the more modern cases evading such corpo-
rate grants as infringing upon the legitimate exercise of the police power
which no legislature may impair: Kcllum v. State, 66 Ind. 597, Broii^dbent
v. Tuskaloosa etc. Assn., 45 Ala. 172, Boyd v. State, 46 Ala. 334. Similarlv
a court to-day would probably annul a provision in a bank 's charter, grant-
ing a right to collect seven per cent interest when the existing law allowed
but six, on the ground that it would violate a constitutional provision pro-
hibiting partial legislation; although the Supreme Court of Tennessee
accorded no weight to this argument in 1853: Hazen v. Union Bank, 1
97a DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
Sneed, 119. Again, a Kentucky case, decided in 1869, held that the State
might not establish and enforce a tariff of freight charges on a railroad
whose hoard of directors were by charter authorized to fix rates of charge ;
while within the next decade the Supreme Court of the United States, in
the famous Granger Cases, .discriminated away mUch more explicit charter
grants urged upon them as effectually precluding attempted leii^slative
regulations of freights and fares: Hamilton v. Keith, 5 Bush. (Ky.), 462;
and see Derby etc. Co. v. Parks, 10 Conn. 542, 27 Am. Dec. 705. And in
early New Hampshire decision denied the power of the legislature to char-
ter a second bridge company with power to maintain a bridge within certain
limits as impairing an implied term of the first company's charter (Piscata-
qua Bridge v. New Hampshire Bridge, 7 N. H. 68), the well-established rule
to-day being against any such implication in favor of the exclusive nature
of the first grant. ^
Obaiter contracts subject to the ordinary rules of contract as to formation
and subsequent modification.
Before proceeding to a consideration of the more important limitations
upon the doctrine, the cases in whfch its operation has been evaded on
more elementary grounds may be briefly reviewed. Assuming the proposi-
tion that a charter is a contract, the ordinary rules of contract have been
invoked and applied. Thus it has been held that if a charter bo a con-
tract, it must be accepted by the corporation before it is binding upon the
State: Nevitt v. Bank of Port Gibson, 6 Smedes & M, 562, 580, State v.
Planters etc. Ins. Co., 96 Tenn. 207, 31 S. W. 992, People ex rel. v. Hoff-
man, 116 HI. 629, 8 N. E. 794, Younger v. Harrison, 6 Ga. 154, 156, Central
R. R. etc. Co. V. State, 54 Ga. 423, It has been held upon a parity of rea-
soning that a corporation may not surrender its charter without legisla-
tive consent: Mechanics' Bank v. Heard, 37 Ga. 411. Upon this theory
also an insurance company chartered with immunity from taxation lost
this privilege by neglecting to act under its charter until after the adop-
tion of a new State Constitution prohibiting special privileges of that sort:
State V. Planters etc. Ins. Co., 95 Tenn. 207, 31 S. W. 992. And see simi-
larly, Central R. R. etc. Co. v. State, 54 Ga. 423. Again, it has been held
that a grant of a franchise to a corporation which has obtained its certifi-
cate, but as yet has neither officers nor stockholders, is not binding because
there is as yet no one competent to contract: Aspen etc. Co. v. Aspen, 5
Colo. App. 17, 37 Pac. 730. So also it has been held that a corporation
may be brought under the control of subsequent laws by accepting them
as amendments to its charter: Derby etc. Co. v. Parks, 10 Conn. 541, 27
Am. Dec. 705, Mobile etc. R. R. Co. v. Steiner, 61 Ala. 592, Woodfork v.
Union Bank, 3 Cold. 498, 499, Nevitt v. Bank, 6 Smedes & M. 562, Case of
St. Mary's Church, 7 Serg. & R. 547, 548, M. O. R. R. Co. v. Gaster, 24 Ark.
100, Trustee v. Gibbs, 2 Cush. 43. But see Herrick v. Randolph, 13 Vt.
530, Commonwealth v. Pennsylvania Canal Co., 66 Pa. St. 48, 5 Ajn. Rep.
339. And this acceptance of an amendment may be implied from conduct,
as well as express. Trustees v. Gibbs, 2 Cush. 43, ^renzeller v. Union
Canal Co., 1 Rawlc, 189; though it must be by all the stock holderd. Com-
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 974
monwealth v. Cullen, 13 Pa. St. 138, 53 Am. Dec. 452. A^n, a eorpora-
tion piay by compromise with the State lose its right to enforce certain
charter stipulations. This was held to have taken place in a Maryland
case, where a certain college entitled under its charter to eight thousand
dollars a year from the State, later accepted the provisions of an act giving
two thousand dollars annually from that date, as in full for all claims:
St. John 's College v. Comptroller, 23 Md. 640.
A corporate charter may contain stipulations as welF in favor of the
State as of the corporation, though instances of the sort are conspicuously
rare; and it is, of course, competent for the State by appropriate legisla-
tion to release the corporation from the obligation thus assumed: Enfield
Toll-bridge Co. v. Connecticut River Co., 7 Conn. 48. So also a corpora-
tion may voluntarily surrender all the rights and privileges it has acquired
by virtue of an inviolable charter, aftd thus submit itself to the operation
of the reserve power to alter, amend and repeal: Monongahela etc. Co. v.
Coon, 6 Pa. St. 382, 47 Am. Dec. 475. In certain of the States induce-
ments have been held out to corporations chartered before the adoption of
the reservation clause, to secure this result: State Board of Assessors v.
Paterson etc. R. R. Co., 50 N. J. L. 450, 14 Atl. 612, Commonwealth v.
Pennsylvania Canal Co., 66 Pa. St. 48, 5 Am. Bep. 339. Upon occasion
also charter contracts have been annulled for want of the necessary juris-
diction or power over the subject matter. Such was the case of a New
Jersey bridge company, chartered by the State of New Jersey with tho
exclusive right to maintain a bridge across the Delaware river within a
radius of six miles of a certain point. The Supreme Court of New Jersey
held that under the agreement subsisting between the States of Pennsyl-
vania and New Jersey, as to the river, such a grant required for its validity
the consent of the State of Pennsylvania, as well: President's etc. v. Tren-
ton B. Co., 13 N. J. Eq. 49. Elsewhere under a familiar rule of the law
of contractual obligations, an exclusive and perpetual franchise sought to
be conferred by the New York city common council, for the operation of
a street railway on Broadway, was declared invalid: Milhau v. Sharp, 27
N. Y. 622, 84 Am. Dec. 318. The court held that the council was a mere
agent and trustee, and wholly without power to make such a contract,
which was further declared in violation of the trust under which the city
corporation was vested with powers over the streets. And see Lake Roland
etc. Ry. Co. v. Mayor, 77 Md. 373, 26 Atl. 512, East St. Louis v. East St.
Louis etc. Co., 98 III. 443, 444, 445, 448. Moreover, a misuser or nonuser
in regard to matters which are of the essence of the contract has been
declared just ground for forfeiture of a corporate charter (State v. Council
Bluffs etc. Co., 11 Neb. 356, 9 N. W. 564, State v. New Orleans Gas etc.
Co., 2 Rob. (La.) 532) ; as also a breach of public duties undertaken (People
V. Bristol etc. Co., 23 Wend. 237). The forfeiture does not result eo- in-
stanti upon breach, but must be judicially ascertained and decreed: Arthur
V. Commercial etc. Bank, 9 Smedes & M. 432, 48 Am. Dec. 722; Importing
etc. Co. V. Locke, 50 Ala. 334, Bradt v. Benedict, 17 N. Y. 99.
975 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
Waiit of consideration.
Again, certain grants of privileges, rights or immnnities to corporations
may be mere gratuities, bounties or licenses, and revocable at any time.
Exemptions from taxation have been set aside on this ground, when granted
at some other time than that of the creation of the corporation. Such
exemptions are valid laws, but not being supported by any valuable con-
sideration, do not rise to the dignity of contract stipulations which the
State is forbidden to impair: Tucker v. Ferguson, 22 Wall. 527, 22 L. Ed.
805, West Wisconsin Ry. Co. v. Board, 93 U. S. 595, 23 L. Ed. 814, Grand
Lodge V. New Orleans, 166 U. S. 146, 41 L. Ed. 952, 17 Sup. Ct. 524, Christ
Church V. Philadelphia, 24 How. 300, 16 L. Ed. 602, Welch v. Cook, 97 U. S.
541, 24 L. Ed. 1112. An act of the legislature of Michigan, in 1859, to
encourage the manufacture of salt, and declaring immunity from taxation
and a bounty of ten cents per bushel for all persons and corporations who
should engage in its manufacture was subsequently, upon this reasoning,
declared by the courts to be a mere gratuity, and repealable at will : Salt
Co. V. East Saginaw, 13 Wall. 373, 20 L. Ed. 611. But in an early case
it was held that an act giving a turnpike company power to increase its
rates of toll might not be repealed, although unsupported by consideration:
Derby Turnpike Co. v. Parks, 10 Conn. 542, 27 Am. Dec. 705.
Unexecuted powers and grants, subject to legislative control.
The recent well-considered case of Pearsall v. Great Northern Ry. Co.,
161 U. S. 646, 40 L. Ed. 843, 16 Sup. Ct. 708, reversing s. c, 73 Fed. 936,
940, 941, 945, would seem to carry the limitations of the doctrine of Dart-
mouth . College V. Woodward a step further than the Supreme Court has
hitherto ventured. A Minnesota corporation was, by amendment to its
charter, in 1865, authorized to consolidate with other railways. This pro-
vision was not acted upon at the time, and Laws of 1874 and 1881 expressly
prohibited the consolidation of competing lines. In 1889, the name of the
eompany was changed, its line extended to the Pacific, and a consolidation
was attempted with its competitors, The Northern Pacific Railway. The
question before the court was the validity of this consolidation in the light
of the company 'd charter rights, and the subsequent prohibition. The
court held in substance that this sweeping, and withal unnecessary, grant,
ap long as it remained unexecuted by action under it, was a mere license,
subject to legislative control and to abrogation by a reasonable prohibition
against the consolidation of competing lines. The court dwelt upon the
fact that such a power was not really a vested right so long as it remained
unexecuted, and, therefore, that no vested rights would be impaired by its
divestiture. It is apparent that this is an important step in the direction
of what IS believed to be the true rule; nor can the soundness of the
decision upon true principles of the law, be questioned.
It is, perhaps, proper to classify here a North Carolina case, holding
that a provision of the bank *s charter permitting the issuance of one dollar
notes was a mere incidental grant, not of the essence of the contract, and
might be afterward taken away: State v. Matthews, 3 Jones (N. C), 464.
Somewhat similar also is the suggestion of Chief Justice Waite that not
\
4 Wheat. 518-715 NOTES ON U, S. REPORTS. 976
all of a charter is protected from change, but only such contracts as it
contains: Stone v. Mississippi, 101 U. S. 816, 819, 25 L. EcL 1079, 1080.
See State v. Port Royal etc. Ry. Co., 66 Fed. 338.
IiawB affecting the remedy merely.
The familiar distinction between laws impairing the obligation of a con-
tract and those changing the remedy merely has been taken in sustaining
legislation alleged to be in contravention of charter provisions. On this
ground an act of the Georgia legislature appointing a receiver for a cer-
tain bank, was held not to impair the charter right to sue and be sued in
its corporate capacity : Carey v. Giles, 9 Ga. 258 ; Mudge v. Commissioners^
10 Rob. (La.) 406. Such also was the reasoning of the Supreme Court
of Tennessee in sustaining a law granting certain further remedies for
the collection of the notes of certain banks: Van Zant v. Waddel, 2 Terg.
267, 270.
OliarterB of municipal corporations not within the rule.
It was declared in the leading case itself that the charters of public
corporations were not within the protection of the obligation clause, and
this is the established rule of law, and has apparently never been ques-
tioned. Dartmouth College v. Woodward has frequently been cited to this
point : East Hartford v. Bridge Co., 10 How. 536, 13 L. Ed. 529, Inhabitants
of Brighton v. Wilkinson, 2 Allen, 29, Dart v. Houston, 22 Ga. 629, 530,
534, 535, State v. B. & 0. R. R. Co., 12 Gill & J. 439, Alexander v. McKenzie,
2 S. C. 91, Jones v. Pensacola, 13 Fed. Cas. 1005, Johnson v. People, 6 Colo.
App. 167, 40 Pac. 578, Holland v. State, 15 Fla. 536, Aspinwall v. Com-
missioners of Daviess Co., 22 How. 377, 16 L. iJd. 300, State v. Wilmington.
City Council, 3 Harr. (Del.) 299, Wilson v. Ross, 40 W. Va. 282, 21 S. E.
869, Mills V. Williams, 11 Ired. 564, Demarest v. Mayor, 74 N. Y. 166,
People V. Pickney, 32 N. Y. 396, St. Louis v. Russell, 9 Mo. (507) 511,
Millburn v. South Orange, 65 N. J. L. 257, 26 Atl. 76, Montpclier v. East
Montpelier, 27 Vt. 710, s. c, 29 Vt. 20, 67 Am. Dec. 751, Portland etc. R. R.
V. City, 14 Or. 193, 58 Am. Rep. 300, 12 Pac. 267, Marietta v. Fearing, 4
Ohio, 432, Newton v. Commissioners, 100 U. S. 657, 25 L, Ed. 710, Wells
V. Cole, 27 Ark. 611, Moses v. Kearney, 31 Ark. 266, Hart v. Burnett, 15'
Cal. 612, Pearson v. State, 56 Ark. 152, 35 Am. St. Rep. 92, 19 S. W. 50O,
Famum's Petition, 51 N. H. 382, Esser v. Spaulding, 17 Nev. 304, 30 Pac.
899, Conner v. Bent, 1 Mo. 239, State v. McFadden, 23 Minn. 43, Bradford
V. Carey, 5 Me. 342, Moore v. New Orleans, 32 La. Ann. 738, New Orleans
etc. R. R. Co. v. New Orleans, 26 La. Ann. 482, s. c, 26 La. Ann. 621, New-
Orleans V. New Orleans Water Works, 142 U. S. 89, 35 L. Ed. 946, 12 Sup.
Ct. 146, Moore v. New Orleans, 32 La. Ann. 738, Clinton v. Cedar Rapids
etc. Ry. Co., 24 Iowa, 475, Mayor etc. of Frederick v. Groshon, 30 Md. 444,
96 Am. Dec. 595, Armstrong v. Board, 4 Blackf. 217, Darlington v. City of
New York, 31 N. Y. 194, 199, 88 Am. Dec. 256, 261, Lucas v. Bd. Commrs.,
44 Ind. 541, 648, Pyle v. Hand Co., 1 S. D. 387, 47 N. W. 402. A stipulation
that certain towns shall not be obliged to contribute to the support of a
highway is, therefore, not binding as a contract obligation on the part of
977 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
the State (Inhabitants of Brighton v. Wilkinson, 2 Allen, 29); nor that
firemen shall be exempt from jury duty. The legislature may establish
new departments, as a fire department, at any time: People v. Pickney,
32 N. Y. 395, Ex parte House, 36 Tex. 85. The legislature may validly
revoke a ferry franchise which has been granted to a municipality (East
Hartford v. Bridge Co., 10 How. 536, 13 L. Ed. 529) ; or a right to widen
a certain creek flowing through the town (Mayor etc. of Frederick v.
Groshon, 30 Md. 444,^96 Am. Dec. 595); or remit a penalty exacted of a
railroad corporation in favor of a certain county (State v. B. & 0. R. R.
Co., 12 Gill & J. 439) ; or a forfeiture incurred by an individual (Conner
v. Bent, 1 Mo. 239). Moreover it may^ as against the municipality, sub-
stitute a new scheme for payment of water company's taxes to a city in
pla<!b of that originally agreed upon: New Orleans v. New Orleans Water
Works, 142 U. S. 89, 35 L. Ed. 946, 12 Sup. Ct. 146. Authority to reissue
municipal bonds in aid of a railroad may be withdrawn by the State:
Aspinwall v. Commrs. of Daviess Co., 22 How. 377, 16 L. Ed. 300. A law
extending the boundaries of a municipality, accepted by a majority of the
inhabitants, although not by a majority of those in the annexed territory,
is valid : St. Louis v. Russell, 9 Mo. (507) 511. But see Town of Milwaukee
v. City, 12 Wis. 105, 108. No Federal limitation is infringed by an act
annexing the territory of one county to another: State v. McFadden, 23
Minn. 43. The legislature may entirely repeal an act establishing a county :
Mills V. Williams, 11 Ired. 564, Jones v. Pensacola, 13 Fed. Cas. 1005. The
power to grant liquor licenses may be transferred from a county to a city
municipality : Wilson v. Ross, 40 W. Va. 282, 21 S. E. 869. And see East
Hartford v. Bridge Co., 10 How. 536, 13 L. Ed; 529. A State Sunday law
may be extended to a municipality: Johnson v. People, 6 Colo. App. 167,
40 Pac. 578. The legislature having authorized a township to acquire
land in an adjoining township for the reception of sewage may by subse-
quent statute validly require that it first gain the assent of the township
in ^ which the land is to be acquired: State v. South Orange, 55 N. J. L.
257, 26 Atl. 76. Again, it is competent for the legislature to grant to a
railway company an easement in certain city streets, as it does not amount
to a violation of the trust upon which the property in the streets is held:
Portland etc. Ry. Co. v. City, 14 Or. 193, 68 Am. Rep. 300, 12 Pac. 267,
Clinton v. Cedar Rapids etc. Ry. Co., 24 Iowa, 475. And see State v.
Hampton, 2 N. H. 25, note. But it is otherwise if the legislature seek to
grant away private lands of the municipality: New Orleans etc. R. R. Co.
V. New Orleans, 26 La. Ann. 478, 482, Town of Milwaukee v. City, 12 Wis.
105, 108. A general statute respecting straying cattle may validly sup-
plant the provisions of municipal charters previously granted; and the
official term of a public municipal officeholder may be shortened or the
office abolished without violating any constitutional rights of an incumbent ;
Alexander v. McKenzie, 2 S. C 91, Demarest v. Mayor, 74 N. Y. 166,
Marietta v. Fearing, 4 Ohio, 432. In another case a legislature had enacted
that upon the fulfillment of a certain condition by the town of C, the
county seat should be permanently located there, and it was held that it
might subsequently decline to direct its removal from X., notwithstanding
I — 62
4 Wheat. 518-715 NOTES ON U. S. REPORTS. '978
the fulfillment of the eonditions: Newton v. Commissioners, 100 U. S. 557,
26 L. Ed. 710. A somewhat similar Arkansas statute providing for the
payment of compensation to property owners in case of the removal of
the county seat after four years was afterward repealed, and the repealing
act sustained on this ground: Moses v. Kearney, 31 Ark. 266. And an
Indiana enactment declaring that L. should forever be the permanent
county seat of a certain county, subsequently encountered the same fate:
Armstrong v. Board, 4 Blackf. 217. Similarly a le^slature in providing
for the creation of a bonded indebtedness of a municipality may not add
as a term of the contract that no siibsequent similar indebtedness shall be
authorized by a future legislature : Moore v. New Orleans, 32 La. Ann. 738.
A law permitting any ten aggrieved voters in a school district to appeal
against the proposed location of a schoolhouse may apply to cases where
the site was, at the time of the passage of the law, already decided upon:
Famum's Petition, 51 N. H. 382. It is competent for a legislature to
direct the transfer of the public moneys from the general fund to a salary
fund of the county : Esser v. Spaulding, 17 Nev. 304, 30 Pac. 899. And an
act authorizing an issue of municipal bonds may subsequently be repealed.
The leading case is cited upon this general proposition of legislative con-
trol over municipalities in holding mandamus applicable against a city
council: State v. Wilmington City Council, 3 Harr. (Del.) 299.
Limitations upon legislative power ov^ municipal corporations.
Legislative power over municipal corporations, however, has its limita*
tions. As was said by Mr. Justice Story in his concurring opinion in the
Partmouth College Case, after conceding the existence of legislative control
over municipal corporations: **But it will hardly be contended, in respect
to such corporations, that the legislative power is so transcended that it
may, at its will, take away the private property of the corporation or
change the uses of its private funds acquired under the public faith. . . .
If a municipal corporation be capable of holding devises and legacies to
charitable uses, as many municipal corporations are, does the legislature,
under our form of limited government, possess the authority to seize upon
these funds, and appropriate them to other uses, at its own arbitrary' pleas-
ure against the will of the donors and the donees f From the very nature
of our government the public faith is pledged the other way." These
observations were» of course dicta, although the citations show that they
have been considered sound law, and frequently followed and applied:
New Orleans etc. Ry. Co. v. New Orleans, 26 La. Ann. 521 ; State v. Foley,
30 Minn. 357, 15 N. W. 378 ; Town of Milwaukee v. City, 12 Wis. 105, 108 ;
Wooster v. Plymouth, 62 N. H. 225; Grogan v. San Francisco, 18 Cal. 613;
Trustees of Aberdeen etc. v. Mayor etc. of Aberdeen, 13 Smedes & M.
647; In re Malone's Estate, 21 S. C. 449; Town of Milwaukee v. City, 12
Wis. 101; Bailey v. Mayor etc. of New York, 3 Hill, 539, 38 Am. Dec. 672;
Galveston v. Tankersley, 39 Tex. 657; State v. Springfield Township, 6
Ind. 97; People v. Hurlbut, 24 Mich. 104, 9 Am. £ep. 112.
The proposition that legislative power over municipal corporations does
not extend to the divestiture of the private property of the municipality,
979 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
or the taking of its private fundSi is clear and unambiguous. The diffi-
ealty is in its application. A Louisiana case in which the legislature
sought ineffectually to take certain lands belonging to the city of New
Orleans, and give them to a railroad company, would seem free from em-
barrassment: New Orleans etc. R. R. Co. -v. New Orleans, 26 La. Ann. 482.
As also a New Hampshire case annulling a statute which sought to take
from a municipality certain bonds previously granted to it by the State,
by way of recompense for men furnished during the Civil War (Spaulding
V. Andover, 54 N. H. 56) ; a Missouri case declaring invalid an attempt
to take certain lands from the town of M. and vest them in the city of M.
(Town of Milwaukee v. City, 12 Wis. 101); and a Texas case where the
legislature attempted to divest certain school lands which it had previously
gi'atited to a municipality: Galveston County v. Tankersley, 39 Tex. 657.
The Ic^slature or municipality may, however, in certain cases, change the
use to which the proceeds of such a grant are to be devoted, provided the
municipality is still the beneficiary : Prince William School Board v. Stuart,
80 Va. 80 ; Trustees etc. v. Mayor etc. of Aberdeen, 13 Smedes & M. 647 ;
Mayor of Newark v. Stockton, 18 N. J. Eq. 186, 14 Atl. 635. It has been
held that the legislature may not, by changing municipal boundaries, place
the private property of one town within the limits of another: Town oT
Milwaukee v. City, 12 Wis. 105, 108. A question of more difficulty is pre-
sented where the lands, or other property, have been granted to the muni-
cipality— whether by Congress or individuals, or the State itself — in trust
for educational or other charitable purposes. It would seem clear, on
principle, that the l^slature would have no power to divert them from the
purposes of the trust (In re Malone's Estate, 21 S. C. 449) ; Montpelier
V. East Montpelier, 27 Vt. 710, s. c, 29 Vt. 20, 67 Am. Dec. 751 ; Board of
Education v. Bakewell, 122 HI. 351, 10 N. E. 384) ; as by directing that
property which had escheated under existing law to a certain municipality,
to be held in trust for the benefit of an orphan asylum, should be taken
and placed in the general State funds : In re Malone's E^ate, 21 S. C. 449.
And it has been further held that while the general purpose to which a
fund was to be devoted under a proposed enactment, was to remain the
same, yet that this may not ^ufiBce to overcome objections based upon con-
stitutional grounds, if the identity of beneficiaries is even in a measure
different. Thus an Indiana statute sought to take certain lands granted to
the resi)ective townships of the State by Congress for educational pur-
poses, and devote them to the use of the school system of the State at
lai^e; and the enactment was declared invalid: State v. Springfield Town-
ship, 6 Ind. 97. In Vermont it has been held that the legislature, having
granted certain school lands to M. township, thereafter, in dividing tlic
township, might not vest part of them in the new township thus created:
Montpelier v. East Montpelier, 27 Vt. 710. And it has even been held that
the legislature might not change the trusteeship of a school fund from one
municipal board to another: Trustees v. Bradbury, 11 Me. 122, 124, 125, 126,
26 Am. Dec. 516, 518, 519, 520. In an early New York case^t was held
that a municipal corporation was to be deemed, as respects its private prop-
erty quoad hoc, a private person, and liable for negligence in the same way,
4: Wheat. 518-716 NOTES ON U. S. REPORTS. ' 980
and the leading case was ^ited as an authority in point: Ba^y v. Mayoi
etc. of New York, 3 Hill, 539, 38 Am. Dec. 672. And see 4# same efitecty
Whitfield V. CarroUton, 50 Mo. App. 102.
Limltatlonfl npon the college doctilne continued — The right of eminent
domain.
An important limitation upon the doctrine of the principal case is the
proposition that the property of a corporation protected by an irrcpcal-
able charter may yet be, taken for public purposes by virtue of the right
of eminent domain; although this very manifest and essential qualifica-
tion of the rule w^as questioned in the Supreme Couft of the United States
in an early case: West River Bridge Co. v. Dix, 6 How. 541, 542, 543, 648,
12 L. Ed. 549, 550, 552. And see Opinion of Justices, 66 N. H. 637, 33 Atl.
1081.
Rule of strict constmetlon.
The Dartmouth College doctrine is further limited by the rule
of strict construction. It is necessarily difficult to state satisfactorily
this very important limitation. Speaking broadly, the assertion may
be hazarded that the niceties of construction are responsible for all
of the restrictions with which the courts have hedged in the doctrine
of the leading case; but this is manifestly too unwieldy A proposition to
admit of treatment as a rule of law. Again, there are many cases citing
Dartmouth College v. Woodward, in which the rule of strict construction
has indubitably played a controlling part, which yet in no single word or
sentence suggest this rule as inducing the conclusions reached. Notwith-
standing this, however, there yet remains a very important line of cases
following the Dartmouth College Case, in which the rule of strict con-
struction does not become a veritable rule of law, repeatedly asserted as
such by the courts. These admit of particular consideration. Tlie projwsi-
tion which they lay down is that when grants of corporate rights, privileges
or immunities are Jn derogation of public right, they are to be construed
most strongly against the corporation, and in favor of the State. The
principle was first announced by the Supreme Court in the famous case of
Charles River Bridge Co. v.. Warren Bridge Co., 11 Pet. 582, 618, 645, 9
L. Ed. 832, 852, 868, s. c, 7 Pick. 446. See also St. Louis v. Gas Co., 5
Mo. App. 504 ; and an early case holding contra, Piscataqua Bridge v. N. H.
Bridge, 7 N. H. 68. This case held that notwithstanding a grant by the
State of Massachusetts for the benefit of Harvard College, of a franchise
to maintain a toll-bridge across the Charles River at Boston, the State
might yet validly franchise a free bridge at the same point thereafter, and
thus practically destroy the value of its first grant. It was strenuously
ai^ed that the very evident purpose of this grant was to assist in provid-
ing revenue for Harvard College, and, therefore, that one very manifest
implied term thereof was that no other bridge should be constructed, and
particularly no free bridge, at that point or so near it as to interfere with
the earnings of the bridge first authorized. But the court declared that
as this was not expressly stipulated in the franchise, it would not be read
into it by the courts; that nothing passed by implication, and that the
981 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
State was entirely free thus to destroy the pecuniary value of its first
grant if it chose. This is an obvious and important limitation upon the
contract theory; and the courts have, in numerous instances, invoked
its aid in an effort to restrict the operation of. the Dartmouth College
doctrine. The note to that case, which will appear in a subsequent volume
of this publication, will be found to show many and varied applications of
this principle. And while, it has at times been pressed too far (Chenan<io
Bridge v. Binghamton Bridge, 27 N. Y. 92, reversed, 3 Wall. 51, 18 L. Ed.
1S7), and at other times, perhaps, been disregarded (Citizens' St. Ry. Co.
V. City Ry. Co., 56 Fed. 748; Micou v. Tallassee etc. Co., 47 Ala. 656),
its influence has been undeniably important and salutary.
Relying upon this principle a . Maine case held that the grant to a
municipal water company of a right to take water from a certain reser-
voir would not prevent the grant of a similar right to a second ; Rockland
Water Co. v. Water Co., 80 Me. 561, 15 Atl. 787. And in New York it has
been declared that a franchise granted to a municipal water company con-
ferred no exclusive privileges so as to prevent the chartering of another
such concern for. the same purpose and in the same place: Matter of City
of Brooklyn, 143 N. Y. 609, 611, 38 N. E. 986. The right to transfer notes
by indorsement has also been held not to be an implied term of a bank's
charter: Payne v. Baldwin, 3 Smedes & M. 674, 677.
Application of rule of strict constmction to charter exemptions from
taxation.
The iiile of strict construction has been frequently applied in evading
apparent charter exemptions from taxation. As has been said, a law de-
priving the Stat^ of its taxing power "must be so clear, explicit and de-
terminate that there can be neither doubt nor controversy about its terms
or the considesation which renders it binding": Washington University v.
Rowse, 42 Mo. 323. A mer^ affirmative charter provision as to the amount
of taxation which a corporation shall pay does not prohibit the subsequent
exaction of noore. Thus a railroad company's charter providing that it
should pay one-fourth of one per cent tax is not a charter stipulation that
it shall never pay more than that: Delaware Railroad Tax, 18 Wall. 225,
21 L. Ed. 894. Even words that seem absolutely prohibitive have their
limitations; and if the charter of a university provide that its lands shall
be **foi*ever" free from taxation, this does not mean that they shall be
exempt in the hands of third persons: Armstrong v. Treasurer of Athens
County, 10 Ohio, 239 ; affirmed, 16 Pet. 281, 10 L. Ed. 965. A charter ex-
emption from the provision of a law reserving the right to alter and repeal
has been held inoperative as against an attempt on the part of the State
to exercise its taxing power: AVashington University v. Rowse, 42 Mo. 319.
Wliile another important line of cases, already considered, requires that
exemptions from taxation when not granted contemporaneously with the
corporate charter, to be valid as against subsequent legislation, must be
supported by some valuable consideration ; and that otherwise they are mere
continuing gratuities : Grand Lodge v. New Orleans, 166 U. S. 146, 41 1«. Ed.
952, 17 Sup. Ct. 524.
4 Wheat. 61^-716 NOTES ON U. S. REPORTS. 982
Bole of strict constmctloii in th« regulation of railroad ratee and fares.
There is an interesting line of railroad cases in which are constmed
various charter grants of a right to reg^ulate freight and fares. These cases
are ail subsequent to the case of Munn v. Illinois, 94 U. S. 113, 24 L. Ed.
77, which a£firmed the right of the State to regulate the rates charged by
railroad companies; a proposition which involves the further principle
that a grant by a State to a railroad corporation of a right to regulate
its own rates of charge is in derogation of public right. Indeed, the Munn
Case has been regarded as establishing an important limitation on Dart-
mouth College V. Woodward, Laurel Fork etc. R. R. Co. v. West Virginia etc.
Co., 25 W. Va. 332, 352, 363, 354, 357, 368, 369, 360, 365 ; although it would
seem but to furnish another field for the operation of the principle enimci-
ated in Charles River Bridge v. Warren Bridge. These authorities do^not
hesitate to override a charter stipulation to the effect that a railroad cor-
poration "shall be bound to carry freights and passengers upon reasonable
terms," when urged as precluding the legislative regulations of freights
and fares : Winona etc. R. R. Co. v. Blake, 94 U. S. 180, 24 L. Ed. 99. And
sec Cambios v. Railroad Co., 4 Fed. Cas. 1106. "The right to fix reasonable
charges has been granted,'' observed Chief Justice Waite in that case,
"but the power of declaring what shall be deemed reasonable has not been
surrendered.'' A charter authorizijig a corporation to establish reason-
able rates of charge on its lines is equally abortive: Stone v. Farmers'
Loan & Trust Co., 116 U. S. 330, 29 L. Ed. 644, 6 Sup. Ct. 344. See Farm-
ers' Loan & Trust Co. v. Stone, 20 Fed. 274. A charter fixing the maximum
rate to be charged implies no right to fix rates within that maximum dif-
ferent from those declared by law : Georgia R. R. Co. v. Smith, 70 Ga. 694,
s. c, 128 U. S. 174, 32 L. Ed. 877, 9 Sup. Ct. 47; Dow v. Beidelman, 49 Ark.
325, 5 S. W. 297. Furthermore, although it be declared in a corporate
charter that the corporation may in its by-laws fix rates of charge, this is
no obstacle in the path of legislative control. It was pointed out in such &
case that another section of the charter required the by-laws to conform
to the laws of the State and of the United States, and the court held that,
reading the two sections together, the corporation was authorized to fix
rates provided they conform to the law, i. e., provided they conform to the
rates fixed by the legislature. Other cases have gone still further and
declare that although the fate of charge be fixed by the legislature in
tlie charter, it is but a legislative fixing of charges for the time being,
and may be changed: Laurel Fork R. R. Co. v. Transportation Co., 25
Wl Va. 357, 360, 365.
Several cases afterward recognized as coming properly under the excep-
tion based upon the police power indicate a disposition to evade the Dart-
mouth College doctrine by reliance upon the rule of strict construction.
Thus it has been declared that the presumption is strong that the legislature
chartering a fertilizing company did not intend to deprive succeeding
legislature of the power to enact laws respecting it for the protection of
the public health (Fertilizing Co. v. Hyde Park, 70 111. 636), that such a
charter is a mere license to conduct a fertilizing company, revocable at
pleasure, s. c, 97 U. S. 672, 24 L. Ed. 1040 ; and similarly that the charter
983 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
of a lottery company was to be construed as -a mere revocable license : Stone /
V. Mississippi, 101 U. S. 816, 819, 26 L. Ed. 1079, 1080; see also Gregory v.
Shelby College, 2 Met. (Ky.) 698. Again, Chief Justice Waite suggests
in one case that not all of a charter is protected from change, but only
such contracts as it contains, an avenue of escape from the embarrassment
of the charter contract doctrine, which seems to have received little further
development by the cases : Stone v. Mississippi, 101 U. S. 816, 819, 26 L. Ed.
1079, 1080 ; State v. Port Royal etc. Ry. Co., 66 Fed. 338.
A recent utterance of the Supreme Court of the United States, already
adverted to, would seem curiously at variance with what has been the
settled tendency of the decisions of that tribunal in the matter of strict
construction. In Reagan v. Farmers' Loan & Trust Co., 154 U. S. 392,
38 L. Ed. 1022, 14 Sup. Ct. 1052, the Supreme Court, per Brewer, J., argu-
ing to a question of jurisdiction, suggested that there might be implied
as a term of a railroad charter, an agre^ent with the State that it be
allowed to charge reasonable rates of toll. This suggestion has been quoted
approvingly, and followed in later cases at circuit: Capital City Gas etc.
Co. V. Des Moines, 72 Fed. 831 ; Central Trust Co. v. Citizens' St. Ry. Co.,
82 Fed. 13. It is not difficult to see wherein the proposition that such a
term of the corporate charter may be implied is a departure from the
spirit of the long line of cases beginning with Charles River Bridge v.
Warren Bridge. Doubtless it is easy to overestimate its significance as in-
dicating an altering attitude upon the part of the tribunal which has been
responsible for the vicissitudes of the doctrine of Dartmouth College v.
Woodward; and especially in view of the argument urged upon the court,
which called it forth.
IilmitatlonB growing out of police power.
It remains to discuss an interesting line of cases in which it has been
decided that the rule of Dartmouth College v. Woodward must yield in
certain instances to the exigencies which arise in the exercise of the police
power. Briefly the doctrine is as follows: Conceding that one legislature
may tie the hands of its successors in the matter of regulating and con-
trolling the corporations which it has created, yet the immunity thus
created cannot be permitted so to operate as to hamper the law-making
power in the task of protecting the public safety, the public health, and
the public morals. This is a primary object of all government and is of
paramount importance. It is intrusted to each succeeding legislature in
its turn ; its efficiency may not be impaired from time to time, and no legis-
lature may barter away any portion of it. "No legislature," declared Chief
Justice Waite, "can bargain away the public health or the public morals.
The people themselves cannot do it, much less their servants. The super-
vision of both these subjects of governmental power is continuing in its
nature, and they are to be dealt with as the special exigencies of the
moment may require. Government is organized with a view to their
preservation, and cannot divest itself of the power to provide for them.
For this purpose, the largest l^slative discretion is allowed, and the
discretion cannot be parted with any more than the power itself": Stone
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 984
■
V. Mississippi, 101 U. S. 819, 25 L. EcL 1080. Authority has further been
found for this limitation in the declaration that the prohibition against *
impairing contract obligations was not intended to embarrass the States in
the regulation of their civil institutions adopted for internal government
(Dartmouth College v. Woodward, 4 Wheat. 618, 629), contained in Chief
Marshall's opinion in the principal case itself: Stone v. Mississippi, 101
U. S. 819, 820, 25 L. Ed. 1080 ; D^ngman v. People, 51 111. 279, 281. And seo
State V. Canal etc. R. R. Co., 24 South. 271.
If, therefore, a legislature charter a corporation for the purpose of manu-
facturing fertilizers, and enact that it is "hereby authorized and empow-
ered to establish and maintain chemical and other works at the place
designated herein," and thereafter, by the growth of the city, the concern
becomes a nuisance and endangers the health of those residing in the
vicinity, the legislature may withdraw the authority granted above, and
compel its removal; Northwestern Fertilizing Co. v. Hyde Park, 70 111.
646 ; s. c, 97 U. S. 672, 24 L. Ed. 1040. And similarly, if one legislature
see fit to charter lottery companies, and endow them with corporate exist-
ence for a term of years, a subsequent legislature, sitting at a time when
public opinion has condemned lotteries as immoral, may by prohibitive
legislation drive them out of business: Moore v. State, 48 Miss. 162, 164,
12 Am. Bep. 371 ; s. c, 21 Wall. 636, 22 L. Ed. 653 ; Stone v. Mississippi,
101 U. S. 816, 819, 25 L. Ed. 1079, 1080 ; Mississippi Soc. etc. v. Musgrove
44 Miss. 834, 7 Am. Rep. 727; Gregory v. Trustees of Shelby County, 2
Met. (Ky.) 598. But the contract whereby an individual has advanced
money to a college in consideration that he be allowed to reimburse him-
self by a lottery, may not be impaired : Douglas v. Kentucky, 168 U. S. 499,
42 L. Ed. 557, 18 Sup. Ct. 203. In earlier cases, prior to the establishment
of the limitation based upon the police power, an opposite conclusion has
been reached: State Lottery Co. v. Fitzpatrick, 3 Woods, ^42, Fed. Cas.
8541.
In another case legislation requiring railroad companies to maintain
cattle-guards at crossings has been held applicable upon this ground to a
railroad claiming an exemption from its operation by virtue of certain
provisions of its charter: Thorpe v. R. & B. R. R. Co., 27 Vt. 144, 151, 156,
62 Am. Dec. 626, 638, 638. In the exercise of the police power the State
may regulate the time and manner in which discharged employees shall be
paid (Leep v. Railway Co^ 58 Ark. 428, 41 Am. St, Rep. 124, 25 S. W. 8) ;
and a statute requiring that flumes and ditches be properly covered is
applicable to pre-existing corporations: Platte etc. Co. v. Dowell, 17 Colo.
382, 30 Pac. 70. So also a statute has upon this ground been upheld, whicli
made railroad companies liable for damage caused by fires conmiunicated
from their locomotives: McCandless v. Richmond etc. R. R. Co., 38 S. C.
431; Mathews v. St. Louis etc. Ry., 121 Mo. 310, 24 S. W. 594; Rodemacher
V. Milwaukee etc. R. R. Co., 41 Iowa, 301, 20 Am. Rep. 595. Charter con-
tract stipulations are also nugatory when in conflict with certain proper
r^ulations of the liquor traffic: Dingman v. The People, 51 111. 279, 281.
In New York an ordinance has been held valid prohibiting, as inimical
to public health, the use as a cemetery of lands originally granted by the
985
DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat, 518^715 \^
city for cemeteiy and church purposes, with a covenant of quiet enjoy-
ment : Presbyterian Church v. New York, 6 Cow. 541. And see, in support
of the general proposition, Illinois etc. R. R^ Co, v. Stone, 20 Fed. 472,
respecting r^ulation of railroad rates.
The reserved right to alter, amend and repeal. In general.
Taking advantage of a suggestion contained in Mr. Justice Story's opin-
ion in the leading case, Dartmouth CoHege v. Woodward, 4 Wheat. 518,
712, a suggestion previously offered in an early Massachusetts case, Wales
V. Stetson, 2 Mass. 143, some of the States, almost immediately after the
opinion in the College Case was ^ handed down, adopted the practice of
reserving in all corporate charters the right to alter, amend and repeal
them: McClaren v. Pennington, 1 Paige Ch. 107; Denny v. Bennett, 128
U. S. 495, 32 L. R. A. 493, 9 Sup. Ct. 136; Railway Co. v. Philadelphia,
101 U. S. 539, 25 L. Ed. 914 ; State v. Brown etc. R. R. Co., 18 R. I. 24,
25 Atl. 249 ; Spring Valley Water Co. v. Schottler, 110 U. S. 352, 28 L. Ed.
176, 4 Sup. Ct. 50. The practice has since become general, if not universal,
both among the States and with Congress : United States v. Church, 5 Utah,
369, 15 Pac. 477; s. c, 136 U. S. 57, 34 L. Ed. 496, 10 Sup. Ct. 808, 7 Am.
Stb Rep. 721. . And the courts have sometimes not been slow to find a
reservation where none was perhaps at the time intended (Pennsylvania
College Cases, 13 Wall. 212, 213, 214, 20 L. Ed. 553, and discourage an
apparent exception in favor of a single corporation: Cumberland etc. R. R.
Co. V. Barren, 10 Bush (Ky.), 612; Ferguson v. Bank, 3 Sneed, 628. So
where a corporation with an irrepealable charter consolidates with another,
subsequent to a reservation of power to alter and amend, the irrepealable
charter rights do not survive: Smith v. Lake S. R. Co. (Mich.), 72 N. W.
329. In many States this reservation is embodied in the organic law. Its
construction has often been before the courts and a considerable body of
learning has grown up concerning it. The power is, of course, a very
broad one. The courts have kept constantly in mind the fact that it was
intended to neutralize the effect of the doctrine that charter provisions are
in the natifre of a contract and may not subsequently be changed. It has
even been thought to subvert the contract theory altogether (Bank v.
McVeigh, 20 Gratt. 476), and again not to affect it at all (Yeaton v. Bank,
21 Gratt. 598). "It is clear," observed the Supreme Court, per Clifford, J.,
in a case respecting the reserve power, "that the power may be exercised,
and to almost any extent, to carry into effect the original purposes of the
grant and\o protect the rights of the public and of the corporators, or to
promote the due administration of the affairs of the corporation" ; Holyoke
Co. V. Lyman, 15 Wall. 519, 21 L. Ed. 139. And see Miller v. State, 15
Wall, 498, 21 L. Ed. 104 ; Opinion of Justices, 66 N. H. 637, 33 Atl. 1082 ;
Citizens' etc. Bk. v. Owensboro, 173 U. S. 651, 656, 43 L. Ed. 846, 848.
"The object of the reservation,," observed Mr. Justice Field in another case,
•'and of similar reservations in other charters, is to prevent a grant of
corporate rights and privileges in a form which will preclude legislative
interference with their exercise, if the public interest should, at any time,
requirb such interference. It is a provision intended to reserve to the.
/ 4 Wheat. 518-715 NOTES ON U. S. REPORTS. 986
State eontrol over its contract with the corporators, which, without that
provision, would be irrepealable and protected from any measures affect-
ing its obligation. . . . The .reservation affects the entire relation between
the State and the corporation, and places under legislative control'all rights,
privil^es and immunities derived from its charter directly from the State":
Tomlinson v. Jessup, 15 Wall. 458, 21 h, Ed. 205, 206. As has been said in
another Federal case, "Whatever rules Congress might have prescribed in
the original charter for the goveniinent of the corporation in the adminis-
tration of its affairs, it retained the power to establish by amendment":
Sinking Fund Cases, 99 U. S. 721, 25 L. Ed. 502.
Accordingly a corporation authorized to maintain a dam across a river
may thereafter be compelled to construct and maintain a fishway at: the
sane point: Commissioners v. Holyoke etc. Co., 104 Mass. 448, 449, 6 Am.
Rep. 250; s. c, 15 Wall. 511, 21 L. Ed. 1S7. The legislature may validly
require the trustees of a charitable educational corporation to lease part of
, its unused lands to county school commissioners: Webster v. Cambridge
Seminary, 78 Md.* 204, 28 Atl. 26. A charter immunity from or. commuta-
tion of taxation may be withdrawn (State v. Wesley an Cemetery, 11 Mo.
App. 571; Railway^Co. v. Philadelphia, 101 U. S. 539, 25 L. Ed. 914; Iron
City Bank v. Pittsburg, 37 Pa. 345; Citizens etc. Bk. v. Owensboro, 173
U. S. 651, 656, 48 L. Ed. 846, 848; Hewitt v. New York etc. R. R. Co., 12
Blatchf. 461, Fed. Cas. 6443; State Board of Assessors v. Paterson etc.
R. R. Co., 50 N. J. L. 450, 14 Atl. 612 ; Tomlinson v. Jessup, 15 Wall. 454,
21 L. Ed. 204); as also a right to assess lands for improvements (Marion
etc. Co. V. Sleeth, 53 Ind. 41) ; or the method of taxation may be changed:
Dubuque v. Illinois Central R. R. Co., 39 Iowa, 94. A corporation may be
required by subsequent statute to pay its employees weekly : State v. Brown
etc. Co., 18 R. I. 24, 25 Atl. 249. A charter provision authorizing the cor-
porate directors of a railroad to fix rates yields to a subsequent general
law in which the legislature establishes the rates of charge: Attorney
General v. The Railroad Companies, 35 Wis. 563, 607; Mobile etc. R. R. Co.
V. Steiner, 61 Ala. 592. A law giving municipal water companies a voice
in the fixing of water rates may be amended and this right taken away:
Spring etc. Co. v. Schottler, 110 U. S. 352, 28 L. Ed. 176, 4 Sup. Ct. 50;
Spring V. W. W. Co. V. Board of Supervisors, 61 Cal. 6. It is no obstacle
to the creation of a municipal gas company that a previous company was
chartered to supply gas in the same municipality, if the charter of the
latter was subject to the reserve power: State v. Hamilton, 47 OJjiio St. 75,
23 N. E. 939. The resei've power also prevents the incidents of an unalter-
able contract attaching to the agreement under which corporations with
irrepealable charters have been induced to surrender this right, and the
substituted arrangement may be changed where the reserve power has been
made one of its terms: Citizens' Bk. v. Owensboro, 173 U. S. 651, 656,
48 L. Ed. 846, 848. So also it justifies a law giving minority stockholders
representation in the corporate directorate, though the old law enabled the
majority to elect the full board (Attorney General v. Looker, 111 Mich. 501.
69 N. W. 930) ; and a law forfeiting certain land grants of a government-
aided railroad for failure to build within the prescribed time. Atlantic
987 . DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-716
oto. R. R. Go. V. MinguSy 34 Pac. 696. A^in, where a reserve right exists
a statute prescribing the individual liability of the stockholders of a bank
is valid^ and applies to existing corporation (In Matter of Lee & Co:, 21
K. Y. 14), a statute making railroads liable for damage by fires from their
locomotives (McCandless v. Richmond etc. R. R. Co., 38 S. C. 110, 16 S. B.
431) ; as also a statute requiring railroad companies to erect a station and
stop their trains at a cerain point, irrespective of original charter provi-
sions (Commonwealth v. Eastern R. R. Co., 103 Mass. 266, 4 Am. Rep.
666); or a statute adding to the number of directors to which a city is
entitled under a railroad charter, in consideration of aid furnished to the
company, the purpose being to give to the city its proportionate repre-
sentation : Miller v. The State, 16 Wall. 493, 496, 21 L. £d. 102, 103. Under
the reserve power it is competent to compel a government aided railroad
to maintain a sinking fund, although the original charter was silent on
the subject; Sinking Fund Cases, 99 U. S. 748, 26 L. Ed. 612, 766. The
principal case is also cited to this point in upholding as against a subse-
quent creditor a statute permitting assignments for the benefit of creditors
in certain instances : Denny v. Bennett, 128 U. S. 496, 32 L. Ed. 498, 9 Sup.
Ct. 136.
The right of repeal
A reservation of a more serious nature is the further customary stipula-
tion that the State may at any time repeal the charter which it has granted.
Corporate charters often contain franchises of the greatest value ; not only
the franchise to be a corporation, but often a franchise to operate a rail-
roftd, to erect and maintain a bridge, to establish and maintain a telegraph
system, or the like. And wHile the a£firmation of a right to withdraw all
this would seem in conflict with preconceived notions of justice, and
although it has been argued that such a reservation is inconsistent with
the grant, and therefore void (McLaren v. Pennington, 1 Paige Ch. 107) ;
and that the forfeiture of a corporate charter was the exercise of a judicial
power not pertaining to the legislative branch (Crease v. Babcook, 23 Pick.
340, 34 Am. Dec. 63) ; nevertheless it is well settled that these rights may
thus be swept away where the stipulation has been made, and that the true
conception of their nature is as. a sort of license repealable at the option
of the power which grants them. But of course, where the right to repeal
has not been reserved, franchises are absolute property for which com-
pensation must be made upon condemnation proceedings: Monongahela
Nav. Co. V. United States, 148 U. S. 344, 87 L. Ed. 474, 13 Sup. Ct. 633 ;
Tuskaloosa Co. v. Green, 48 Ala. 351; Bronson v. Taylor, 33 Conn. 117.
The practice prevails generally among the States of limiting the term of
corporate existence by general law, and among both local and State bodies
of granting franchises only for a term of years, and these circumstances
have doubtless contributed toward rendering cases of deprivation under
this power rather infrequent. The citations, however, show the following,
in which this right of repeal has been exercised: State v. Southern Pacific
R. R. Co., 24 Tex. 126, 126; Crease v. Babcock, 23 Pick. 340, 34 Am, Dec.
6S; Bridge Co. v. United States, 105. U. S. 481, 26 L. Ed. 1166; Baltimore
4 Wheat. 51S-716 NOTES ON U. S. REPORTS. 988
etc. Co. V. Mayor, 64 Fed. 160; People v. 0*Brien, 111 N. Y. 49, €3, 7 Am.
St, Rep. 702, 714, 18 N. E. 702, 710 ; United States v. Church, 5 Utah, 369,
15 Pac. 477, s. c, 136 U. S. 1, 84 L. Ed. 496, 10 Sup. Ct. 808. The Consti-
tution of Texas provides for the payment of compensation where this right
of repeal is exercised : State v. Southern Pacific R. R. Co., 24 Tex. 126, 126.
A municipality, while it may repeal franchises which it has granted, pro-
vided the necessary power has been reserved, may of course not repeal
such as are derived from the legislature itself : Baltimore etc. Co. v. Mayor,
64 Fed. 160.
Effect of the repeal of a charter.
Several citatiAis deal with the effect of an extinction of corporate exist-
ence upon the property of the corporation, upon its unexecuted contracts
upon third persons having dealings with it, and upon such other fran-
chises as. it may have acquired. Obviously the life of the corporation, as
sucli, is at an end. It cannot proceed as hitherto in the transaction of the
business to which it had been empowered, for its life and its powers have
alike departed. It remains to administer upqn its effects; and its assets
become a trust fund, to be dealt with in the interests of its stockholders
and its creditors. Property which it has acquired is not confiscated by
reason of the repeal of its charter any more than is that of John Jones
upon his decease. Nor will the lawful rights of third persons, as against
this defunct entity of the law, be disturbed any more than will those of yet
other persons upon the death of John Jones, the individual. "Personal and
real property," observed Mr. Justice Miller, in Greenwood v. Freight Co.,
105 U. S. 19, 26 L. Ed. 964, "acquired by the corporation daring its law-
ful existence, rights of contract, or choses in action so acquired, and which
do not in their nature depend upon the general powers conferred by the
charter, are not destroyed by such a repeal, and the courts may, if the
legislature does not provide some special remedy, enforce such rights by
the means within their piJwer. The rights of the shareholders of such a
corporation, to their interest in its property, are not annihilated by such a
repeal, and there must remain in the courts the power to protect those
rights." And applying the principle in that case, which involved the status
of the property of a defunct street railroi^d corporation, whose tracks and
roadbed were to pass to another company upon payment of comx)ensation,
be continued : "It results from this view of the subject that whatever rights
remained in the Marginal Company, to its rolling stock, its horses, its har-
ness, its stables, the debts due to it, and the funds on hand, if any, it no
^longer had the right to run its cars through the streets, or any of the
streets, of Boston. It no longer had the right to cumber these streets with
a railroad track which it could not use, for these belong by law to no person
of right and were vested in defendants only by virtue of the repealed
charter." It is competent for the repealing act likewise to take the other
franchises conferred, provided they are derived from the legislature and
the necessary reservation has. been made in their grant: Greenwood v.
Freight Co., 106 U. S. 20, 26 L. Ed. 964. But if the corporation has ac-
quired franchises from other sources, as from a municipality, and the l^s-
989
DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 6 18-715
latore is, by the organic law, deprived of control of these franchises, a
different question is presented. It is clear tl^at they are, as against such a
legislature, property not to be divested without due process of law ; just as
are all franchises where no ^servation has been made (Monongahela Nav.
Co. V. United States, 148 U. S. 344, 37 L. Ed. 474, 13 Sup. Ct. 633) ; and
that they do not lapse simply because the corporation which should exercise
them has ceased to exist. They constitute a part of the corpus of the
corporate assets, to be distributed in accordance with the rules of law
governing the property of dissolved corporations: People v. O'Brien, 111
N. Y. 57, 7 Am. St. Rep. 709, 18 N. E. 707.
Limitations upon the reserve power to alter, amend and repeaL
The general scope of the reservfe power appears in the preceding para-
graphs. But the scope of all legislative powers under a constitutional
form of government being finally determined by the limitations established
in the organic law, what is there said must be taken in connection with
what follows. Legislation seeking to affect existing corporations by virtue
of a reserve right to alter, amend or repeal, must meet several require-
ments: First, where the purpose' of the l^islation.is deprivation, either by
modification or repeal, it must not seek to take anything except that which
the State has granted; property which the corporation may have acquired
under the powers and franchises so granted, may not be taken; second,
where the pur]K)se of the legislation is alteration rather than deprivation,
the substitution of powers and privileges may not be carried to the X)oint
where a new corporation is practically substituted; and, Third, it must, as
must all laws, be within the general scope of legislative power and contra-
vene no constitutional prohibitions. There is an apparent contradiction in
First and Third. Corporate rights, powers and franchises are undoubtedly
property, and ordinarily their divestiture under First would violate the
familiar constitutional prohibition against the deprivation of property with-
out due process of law embodied in Third. But it is more accurate to con-
ceive of the property right of a corporation in its i}owers and franchises
as a sort of defeasible estate, or as a species of license, terminable at the
will of the grantor. And under this view, of course, no constitutional pro-
hibition is infringed by their divestiture at the hands of the power granting
them.
The State may take only that which It has given.
In many of the cases, the purpose of the legislation attempted under the
reserve i)ower is the taking away of something — ^whether a franchise,
power, privilege or imnyinity — ^which the corporation has hitherto enjoyed.
When organized, the corporation may, perhaps, have received certain valu-
able franchises or privileges to maintain a ferry, to own land, to deal in
stocks and bonds, or certain immunities, such as freedom from taxation.
All these rights, privileges and immunities come from the State, and derive
and maintain their existence solely by virtue of that fact. At a later date,
the State may desire the abolition of the ferry, may find that abuses grow
out of the acquisition of vast tracts of lan^ by corporate bodies, or out
of the traffic in stocks and bonds^ or that a necessity for more revenue ren-
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 990
ders imperative the discontinuance of the immunity from taxation. Under
the reserve power the State may, if it choose, forfeit the ferry franchise
which it has graijited, may prohibit or restrict the acquisition of lands, may
prohibit or perhaps even punish the traffic in stocks and bonds, may enforce
the payment of a full quota of taxes by the corporation which has hitherto
paid none. It may take or it may modify that which it has granted. But
that is all. Property acquired during the exercise of these powers it may
not divest, contracts already executed it may not annul, acts, lawful when
committed it may not afterward punish, taxes thus remitted it may not
afterward exact; the legislation thus attempted must be prospective and
not retrospective in its operation. This principle has been very clearly
stated by several of the most eminent of the members of the Supreme Oburt
of the United States: See Sinking Fund Cases, 99 U. S. 271, 25 L. Ed. 502;
Railroad Tax Cases, 13 Fed. 755, 765; In re Parrott, 6 Sawy. 357, 1 Fed.
489; Miller v. State, 15 Wall. 494, 495, 21 L. Ed. 108; Holyoke v. Lyman,
15 Wall. 511, 21 L. Ed. 137; Sinking Fund Cases, 99 U. S. 748, 765,^26 L.
Ed. 512, 518 ; Pearsall v. Great Northern Ry. Co., 161 U. S. 660, 40 L. Ed.
843, 16 Sup. Ct. 708 ; Commissioners v. Holyoke, 104 Mass. 448, 6 Am. Rep.
250 ; Tomlinson v. Jessup, 15 Wall. 455, 21 L. Ed. 204 ; Bridge Co. v. United
States, 105 U. S. 470, 26 L. Ed. 1143; Greenwood v. Freight Co., 105 U. S.
20, 26 L. Ed. 964; Spring Valley W. W. v. Schottler, 110 U. S. 352, 370,
28 L. Ed. 176, 181, 4 Sup. Ct. 50, 59, 60; Hamilton Gas Co. v. Hamilton,
146 U. S. 258, 86 L. Ed. 963, 13 Sup. Ct. 90; Schurtz v. Cook, 148 U. S.
397, 87 L. Ed. 498, 13 Sup. Ct. 645; Black River Imp. Co. v. Holway, 87
Wis. 587, 59 N. W. 127.
Limitations upon the power to alter.
Legislation attempted under the reserve power often partakes not so
much of the nature of deprivation as of change — ^the taking of one power
or privilege and the substitution of another. It is important to note that
in such a case there is a limitation upon the changes that may thus be
created. It is not competent, as against p;rotesting stockholders, to change
the ends and purposes for which the corporation was created; to change
materially the amount of its capital stock (Railroad Co. v. Veazie, 39 Me.
571) ; to change the nature of a charitable institution or the instrumental-
ity of its administration (State v. Adams, 44 Mo. 576) ; to authorize a lease
of a railroad by anything less than a unanimous vote of the stockholders
(Dow V. Northern R. R. Co., 36 Atl. 525, 529, 532, 537; Sage v. Dillard,
15 B. Mon. 351) ; or to so change a charter as practically to substitute an
entirely new one with new terms and powers (Commonwealth v. Cullen, 13
Pa. St. 138, 68 Am. Dec. 452 ; Zabriskie v. Railroad Co., 18 N. J. Eq. 186 ;
and see Hale v. Everett, 53 N. H. 126, 193, 253). The conclusion is otlicr-
wise if all the stockholders concur in the amendments (Wbodford v. Union
Bank, 3 Cold. 498) ; and this concurrence may be presumed from silent
acquiescence for a period of time (Zabriskie v. Railroad Co., 18 N. J. Eq.
186).
The legislation must meet the usual constitutional requirements.
This would seem a mere truism. But the necessity for its affirmation
in this connection arises from the fact that the reservation clause is on its
\
991 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
face a waiver of all constitutional privileges and guaranties, affording
ground for ingenious argument on the point. It need only he borne in
mind; however, that legislative power under the American form of govern-
ment is limited by constitutional restrictions, and that these powers may
not be enlarged, nor these limitations infringed by the mere agreement of
the individual citizen that the legislature may trespass upon forbidden
ground if it choose. And it is, of course, still less competent for the State
legislative power to ignore the restrictions of the Federal Constitution.
Speaking upon this latter point, Mr. Justice Field has said : "The State, in
the creation of corporations or in amending their charters, or, rather, in
passing or amending general laws under which corporations may be formed
and altered, possesses no power to withdraw them when created, or by
amendment from the guaranties of the Federal Constitution. It cannot
impose the condition that they shall not resort to the courts of law for the
redress of injuries or the protection of their property ; that they shall make
no complaint if their goods are plundered and their premises invaded;
that they shall ask no indemnity if their lands be seized for public use, or
be taken without due process of law, or that they shall submit without
objection to unequal and oppressive burdens arbitrarily imposed upon
them; that, in other words, over them and their property the State may
exercise unlimited and irresponsible power. Whatever the State may do,
even with the creation^ of it^ own will, it must do in subordination to the
inhibitions of the Federal Constitution'*: Railroad Tax Cases, 13 Fed. 754.
It becomes obvious, in view of these considerations, why the State may
have a power to enac^t by amendment coequal with, but not greater than,
the power which it was privileged to exercise at the time of the creation
of the corporation. The reason the State may not take anything save that
which it has granted, becomes equally plain; as are also the limitations
against impairing the contracts with third persons and the retrospective
divesting of vested rights. If the view here taken and considered in a pre-
ceding paragraph be^ correct, that the taking from the corporation of that
whic|^ the State has granted be not a deprivation of property without due
process of law, for the reason that the corporation owns, as against the
grantor, but a defeasible interest therein, it undoubtedly follows that the
limitations under the reserve power are not other than the ordinary re-
strictions upon legislative actions. But the foregoing classification of these
limitations may perhaps be justified for purposes of specific discussion, as
well as under the authorities.
Acceptance of legislative amendments to corporate charter. Note, 63
Am. Dec. 460, 469.
Power of legislature to repeal a corporate franchise under a condi-
tional reservation. Note, 48 Am. Dec. 118.
Effect of dissolution of corporation, whether by repeal of its charter
or otherwise. Note, 7 Am. St. Rep. 721.
Effect of statutes making pre-existing contracts illegal. Note, 20 Am.
St. Rep. 472.
^ ^^^^ ,r s iZBPORTS. 994
Sy
CTT^^^'
/* '^^ rt0^^^ '° office of commissioner of insnr-
^ it^' ' [ ^^ i^^^^pj(^, 102 Am. St. Rep. 589, 65 L. B. A. 757,
yf.<A/f^' "^^fli^, J^ :^'g^tuto P^oyiding for special administration of
'T'^^^'^ifi V^'^^'lt^ proven, but who disappeared
Jl^y '!' L vrfi(f^ ^^'iiiO' ground for belief he is dead or unlawfully
^v'f^f^ ^*/^litjst^'''^/s^^^^ Okl. Cr. 104, Ann. Oaa. 19140. 814. 126
f*^"^^Lj- A'J^^^^^.j'g process of law" as applied to criminal cases; Har-
'^'^'^he! dofiniog^^ ^^^ 203 Tenn. 433, 76 Am. St. Rep. 689, 56 L. R. A.
H,^^ ''' ^'"w 958, upholding acts 1899, c. 11, §§ 1, 2, requiring cor-
^1^0 *^^ ^' redeem i° ^^^^ ^^ evidences of indebtedness used to
Zfi^^i^"^ !l . State V. Strasburg, 60 Wash. 125, Ann. Oas. 1912B, 917.
/ ^'^B^ ^ (J^. S.) 1216, 110 Pac. 1026, holding invalid laws Wash.
^j X>- ^'^^ g 7^ providing that insanity shall be no defense to charge
1^g09, ^' ^'^j,^' Cnm. Code Wash. 1909, § 31, providing that insane per-
o€ ^^' nyieted of crime may be confined for treatment at judge's
soti ^£^|] without necessity for evidence or opportunity to be heard;
^^^^^ting opi^io"^ ^^ Crane v. Waldron, 133 Mich. 88, 94 N. W. 598,
jissc upholding Comp. Laws, § 10,203, relating to evidence in suits
^^^^^d of execution ; dissenting opinion in Daniels v. Homer, 139 N. C. 238,
^^U^ A. (N. S.) 997, 51 S. E. 999, majority upholding acts Gen. Assem.
1905 c. 292, regulating fishing and providing for seizure of appliances usc:l
. illegal fishing; dissenting opinion in Jones v. Commissioners of Franklin
Co. 130 N. C. 466, 42 S. E. 149, majority holding that where county com-
missioners took land for use of county without having jury assess its
value and no appeal was taken from such action, no action lies for value
of property; dissenting opinion in Perry v. Young, 133 Tenn. 542, 182
S. W. 683, majority holding that State court has jurisdiction of suit to
reform assignment clause in life insurance policy. In accordance with
this principle it has been held that property was taken without due process
of law by a statute making railroad companies liable for injuries or the
kilHng of cattle, although they were not negligent or guilty of any fault
or wrong (Zeigler v. South, etc. R. R. Co., 58 Ala. 598; Denver etc. v. Out-
calt, 2 Colo. App. 401, 31 Pac. 179) ; by a statute making tax bills sufficient
evidence in suit by city to recover back taxes (Louisville v. Cochran, 82
Ky. 36) ; by a statute respecting condemnation proceedings under eminent
domain, which did not provide for a hearing before commissioners
(Wilson V. Baltimore etc. R. R. Co., 5 Del. Ch. 536) ; by an enactment
providing for a change in the grade of city streets, appointing appraisers
to assess damages, and allowing an appeal from their decisions but not
otherwise (McGavock v. Omaha, 40 Neb. 76, 58 N. W. 547); by an act
declaring that all property of an individual whose license fee was delin-
quent and iinpaid might be summarily seized (Chauvin v. Valiton, 8 Mont.
460, 20 Pac. 661) ; by a law subjecting the separate property of married
women to attachment for the debts of their husbands (Bedsworth v. Bow-
man, 104 Mo. 50, 15 S. W. 991) ; by a statute providing an assessment for
local improvements without notice or an opportunity to be heard (Stuart
v. Palmer, 74 N. Y. 191, 80 Am. Rep. 294; Campbell v. Dwiggins, 83 Ind.
482) ; or for the taxation of the property of a railroad in the county where
995 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518^715
situated without any notice given (Railroad Tax Cases, 13 Fed. 755, 765) ;
by a statute authorizing the Governor to set aside the registration of the
voters of a county (State v. Staten, 6 Cold. 244) j by a statute setting aside
a judicial decree and ordering a new trial (Peerce v. Kitzmiller, 19 W. Va,
673, 578) ; by a law giving a Governor power to remove a sheriff from office
for certain omissions without opportunity to be heard (Conklin v. Cun-
ningham, 7 N. M. 471, 38 Pac. 177) ; a prohibition law when retrospectively
applied so as to divest property rights (State v. Walruff, 26 Fed. 191) ;
by an act of Congress empowering postmasters to send to the dead-letter
office mail addressed to one suspected of conducting a lottery; Hoover v.
McChesney, 81 Fed. 481. In dissenting opinion of Field, J., in Beckwitb
V. Bean, 98 U. S. 295, 25 L. Ed. 185, it was argued that imprisonment of a
person under order from the executive when the courts were open and. in
full exercise of their jurisdiction was not due process of law even in time
of Civil War; dissenting opinion in Ex parte Martinez, 66 Tex. Cr. 115, 145
S. W. 1020, arguendo.
It is not in accordance with the law of the land for a trial judge to
decline to enforce the rule that witnesses not on the stand absent them-
selves from the courtroom : Watts v. Holland, 56 Tex. 60. A statute requir-
ing a bond of one seeking a jury trial and otherwise impeding the right
of an accused thereto, is void, on this ground : Inhabitants of Saco v. Went-
worth, 37 Me. 172, 58 Am. Dec. 788. Even a military commander in a
territory undeor martial law may not order a private debt to be paid into
the government: Clark v. Mitchell, 64 Mo. 582. To hold that a person
whose surrender has been requested of one State by the Governor of an-
other, as a fugitive from justice, is for that sole reason such in fact, would
not be due process of law, and the question may be inquired into on habeas
corpus: In re Cook, 49 Fed. 839. It is not due process of law for a trial
judge to penalize a contempt by striking the pleadings of the guilty party
from the files and ordering judgment pro confesso against him (Hovey v.
Elliott, 167 U. S. 418, 42 L. Ed. 221, 17 Sup. Ct. 845) ; nor to make an
allowance of a compensation to a guardian ad litem without notice to his
ward : Jones v. Gove, 142 Mo. 44, 43 S. W. 386.
A statute providing for proceeding in criminal cases by information
instead of indictment provides due process of law (Kalloch v. Superior
Court, 56 tal. 238, Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,
4 Sup. Ct. Ill, State v. Starling, 15 Rich. 127) ; although a Colorado case
is contra: In re Lowrie, 8 Colo. 513, 54 Am. Rep. 569, 9 Pac. 498. Again,
an act permitting the giving of constructive notice to parties to partition
suits, under some circumstances, is due process of law and unobjectionable :
Mason v. Messenger, 17 Iowa, 267. This provision is satisfied if there is
a hearing before a court and an opportunity to interpose any defense:
Hulett V. Missouri etc. R. R. Co., 145 Mo. 36, 46 S. W. 952. It is compe-
tent to provide that certain local officers may prohibit liquor selling in
their parishes on Sunday at their option (State v. Bott, 31 La. Ann. 667,
33 Am. Rep. 228); or that judges commit for insanity while sitting at
chambers (In re Ross, 38 La. Ann. 524) ; or commit a witness refusing to
enter into a recognizance for his appearance: In re Petrie, 1 Kan. App. 192^
4 Wheat. 618-715 NOTES ON U. S. REPORTS. 996
40 Pac. 120. A divided court has upheld the action of a State Qovemor
in summarily suspending a railroad commissioner for becoming a stock-
holder in a railroad contrary to the statute, although the dissenting judge
thought this not due process of law: Caldwell v. Wilson, 121 N. C. 477, 28
S. E. 564.
More miscellaneously this definition has been cited in an admiralty ease
and made applicable to a suit for collision. The Worthington v. Davis, 19
Fed. 840; in holding that a State may absolutely prohibit the manufacture
and sale of intoxicating liquors, State ex rel. v. Bradley, 26 Fed. 291; dis-
senting opinion in People ex rel, v. Hoffman, 116 111. 625, 8 N. E. 792,
arguing that municipal election law is void on this ground; in Hall v. Webb,
21 W. Va. 326, declaring law exempting period of war from the statute
of limitations invalid, in so far as reviving a right of action barred • at
thd time of its passage.
Law of the land. Note, 24 Am. Dec. 589.
Imprisonment for contempt of order in supplementary proceedings.
Note, 56 Am. Rep. 364.
Depriving public property of use for which it was intended as taking
without due process of law. Note, Ann. Gas. 1915B, 1140.
Courts will not pronounce a law nnconstitational in donbtfol case.
Approved in Booth v. McGuinness, 78 N. J. L. 371, 76 Atl. 461; Smith v.
Odell, 1 Pinn. 455, Smith v. Mariner, 6 Wis. 580, 68 Am. Dec. 80, United
States v. Boyer, 85 Fed. 430, State v. Holden, 14 Utah, 90, 46 Pac. 760,
People v. Budd, 117 N. Y. 14, 15 Am. St. Rep. 469, 22 N. E. 674, Noel v.
Ewing, 9 Ind. 43, 49, State v. Williams, 7 Rob, (La.) 264, Maxent v. Maxent,
1 La. 453, 464, United States v. Goldman, 3 Woods, 194, Fed. Cas. 15,225,
Pierce v. Kimball, 9 Me. 60, 28 Am. Dec. 542, Ortman v. Greenman, 4
Mich. 294, Mayor v. State, 15 Md. 389, Murphy and Glover Test Oath Cases,
41 Mo. 382, Territory v. O'Connor, 5 Dak. Ter. 413, 41 N. W. 752, Nunn
v. State, 1 Ga. 246, Darling v. Berry, 13 Fed. 670, 4 McCrary, 486, Bona-
parte V. Camden & A. R. R. Co., 1 Bald. 219, Fed. Cas. 1617, In re Smith,
2 Woods, 463, Fed. Cas. 12,996, Powell v. Pennsylvania, 127 U. S. 685, 82
L. Ed. 256, 8 Sup. Ct. 996, Darling v. Berry, 13 Fed. 670, 4 McCrary, 486, all
following rule. An Alabama case cites to the proposition that an uncon-
stitutional law ought to be declared void by the judiciary: Dale v. (Jovemor,
3 Stew. 397, 419; Board of Commrs. v. Tollman, 145 Fed. 766, upholding
Laws N. C. 1885, p. 439, c. 233, incorporating railroad and authorizing is-
suance of county aid bonds; Dirkin v. Great Northern Paper Co., 110 Me.
387, Ann. Gas. 1914D, S96, 86 Atl. 326, upholding validity of Maine Em-
ployer's Liability Act 1909 ; State v. Hamilton, 33 Nev. 426, 111 Pac. 1029,
upholding Primary Act, Laws 1908-9, c. 198, § 5, subds. 4 and 27, prohibiting
withdrawal of candidates nominated at primary ; Ex parte Kair, 28 Nev. 146,
118 Am. St. Rep. 817, 6 Ann. Gas. 898, 80 Pac. 466, upholding valid Stats.
Nov. 1903, c. 10, making it penal offense to work more than eight-hoar day in
underground mine or in smelter.
The obligation clause never has been understood to embrace other con-
tracts than those which respect property or some object of yaloe, and confer
DARTMOUpE COLLEGE v. WOODWARD. 4 Wheat. 518-715
Mch may be asserted in courts of Justice. It does not restrict the
Tislate on the subject of divorce. But the State may not annul a
^hout the consent of the parties,
.jeen argued from Mr. Justice Story's denial of the right to annul
.riage without consent of the parties, that the Federal Constitution in
.ohibiting laws impairing the obligations of a contract, included the mar-
riage contract within the prohibition; and a few cases favor this view,
with9ut actually deciding the point: Lawrence v. Miller, 2 N. Y. 251,
Drew's Appeal, 57 N. H. 183, Wright v. Wright's Lessee, 2 Md. 443, Burke
V. Barix>n, 8 Iowa, 136, Callahan v.. Callahan, 36 S. C. 466, 15 S. E. 731 ;
and see dissenting opinion in Dred Scott v. Sandford, 19 How. 601, 15
L. Ed. 782. But a considerably larger number have regarded Dartmouth
College v. Woodward, as declaring that the marriage contract is not within
the meaning of the prohibition: Townsend v. Griffin, 4 Harr. 444, Hunt v.
Hunt, 131 U. S. clxv, 24 L. Ed. 1109, Tolen v. Tolen, 2 Blackf. 409, 21 Am.
Dec. 744, Starr v. Pease, 8 Conn. 546, State v. Fry and Others, 4 Mo. 172,
194, Campbell 's Case, 2 Bland Ch. 236, 237, 20 Am. Dec. 877, 878, Harding
v. Alden, 9 Me. 150, 28 Am. Dec. 555, Cabell v. Cabell, X Met. (Ky.) 326,
Levins v. Sleator, 2 G. Greene, 608, Noel v. Ewing, 9 Ind. 49, 51, Cronise
V. Cronise, 54 Pa. St. 262, Lonas v. State, 3 Heisk. 310, Bowen v. Blount,
48 Ala. 674, Stone v. Gazzin, 46 Ala. 275, Maynard v. Hill, 125 U. S. 210,
81 L. Ed. 669, 8 Sup. Ct. 729, Rose v. Rose, 46 S. W. 530, State v. Tutty,
41 Fed. 757, Ex parte Kinney, 3 Hughes, 13, 18, Fed. Cas. 7825, In re
Hobbs, 1 Woods, 540, Fed. Cas. 6550. A few cases call attention to the
fact that marriage, under the modem view, is rather to be regarded as a
status arising out of contract than as a contractual relation : State v. Tutty,
41 Fed. 757. Several of these citations occur in cases upholding laws
p"t>hibiting, and punishing criminally, marriages between blacks and whites:
State V. Tutty, 41 Fed. 757, Ex parte Kinney, 3 Hughes, 13, 18, Fed. Cas.
7825, Ex rel. Hobbs, 1 Woods, 540, Fed. Cas. 6550, Lonas v. State, 3 Heisk.
310. It has been urged against the validity of legislative divorces, in
several States, that the obligation clause of the Federal Constitution was
infringed; but the courts have adhered to the opinion of Chief Justice
Marshall stated above: Wright v. Wright's Lessee, 2 Md. 443, Maynard
V. HiU, 125 U. S. 210, 31 L. Ed. 659, 8 Sup. Ct. 729, Cronise v. Cronise, 54
Pa. St. 262, Levin v. Sleator, 2 G. Greene, 608, Starr v. Pease and Others,
8 Conn. 546, Tolen v. Tolen, 2 Blackf. 409, 21 Am. Dec. 744, Cabell v.
Cabell, 1 Met. (Ky.) 326. Although other grounds have been found in one
or two cases for declaring invalid divorces granted by act of legislature:
State V. Fry, 4 Mo. 172, 194, Higbee v. Higbee, 4 Utah, 32, 5 Pac. 698.
Approved in Worthington v. District Court, 37 Nev. 238, 142 Pac. 239,
holding, under Act 20, 1913, appearance of nonresident defendant will not
confer jurisdiction of divorce suit brought by person who has no bona 6de
domicile in State; In re Christensen, 17 Utah, 433, 70 Am. Sf. Eep. 808,
41 L. B. A. 504, 53 Pac. 1010, holding divorce cannot be granted without
notice to party complained of; dissenting opinion in Rose v. Rose, 104 Ky.
65, 41 L. E. A. 363, 46 S. W. 530, majority holding Gen. Stats., c. 52, art. II,
§ 1, gave husband vested right in wife 's land which was not affected by
4 Wlieat. 51&-715 NOTES ON U. S. REPORTS. 998
act of 1894; Lewis v. Tapman, 90 Md. 299, 47 L. B. A. 385, 45 Atl. 461,
arguendo.
Framers of tlie Constitatlon did not intend to restrain the States In the
regulation of their civil institutions adopted for internal govemmentw State
legislatures have power to enlarge, repeal and limit the anthorltieB of pnhllc
officers in their official capacities. /
In reliance upon the foregoing principles it has been held th^t the State
may abolish an office at any time, or change the mode of appointgient,
or shorten the term, and impair no vested right: State v. Dews, Charit.
(Ga.) 414, 421; People v. Loeffler, 175 111. 609, 51 N. E. 793; Demarest v.
Mayor, 74 N. Y. 166; People v. Pickney, 32 N. Y. 395; Alexander v. Mc-
Kenzie, 2 S. C. 91 ; Coyle v. Mclntire, 7 Houst. 44, 88, 90, 40 Am. St. Rep.
114, 116, 30 Atl. 730, 731 ; Donohue v. County of Will, 100 HI. 106 ; see also
Mayor v. State, 15 Md. 491. So also the legislature may change the cus-
todian of trust funds from one municipal officer to another; and this does
not impair the contract of the donors: Smith v. Westcott, 17 R. I. 367,
22 Atl. 281; but s6e Trustees v. Bradbury, 11 Me. 122, 26 Am. Dec. 516.
And it may temporarily direct that no funds be paid out of the State treas-
ury without impairing the obligation of any contract for the salaries of
its officers (Swann v. Buck, 40 Miss. 300) ; or declare a reduction in salary
in the middle of an appointee's term of office (Marden v. Portsmouth, 59
N. H. 20) ; or deprive him of perquisites such as certain commissions :
Iowa City v. Foster, 10 Iowa, 191. A discharged officer has no right to his
salary for the remainder of his term of office (Hoboken v. Gear, 27 N. J. L.
278); nor one who has not discharged its duties although elected: Smith
v. New York, 37 N. Y. 520. But where under authority of the legislature
a State Governor has entered into a contract for a stipulated time for the
employment o£ a State geologist, the legislature may not repudiate this
agreement: Hall v. Wisconsin, 103 U. S. 10, 26 L. Ed. 305, overruling 39
Wis. 84.
The above observations of Chief Justice Marshall have also been referred
to in a Mississippi case upholding an act suspending the statute of limita>
tions during the Civil War : Hill v. Boyland, 40 Miss. 637. And in a South
Dakota case deciding a jurisdictional question: Pyle v. Hand County, 1
S. D. 387, 47 N. W. 402. And again in holding that a prohibition against
lotteries may apply to a corporation previously authorized to conduct one
(Mississippi Society etc. v. Musgrove, 44 Miss. 834, 7 Am. Rep. 727) ; as
also in upholding test oath acts as applied to attorneys : State v. G^reschc,
36 Mo. 260.
Approved in State v. Sowell, 143 Ala. 499, 39 South. 248, holding void,
appropriation for Alabama Medical College, as it was not under absolute
control of State ; Beasley v. Ridout, 94 Md. 656, 52 Atl. 65, upholding acts
1901, c. 15, taking control of Anne Arundel county from sheriff; Smith
v. State, 28 pk. 252, 113 Pac. 939, holding that initiated bill repealed in
part Oklahoma Enabling Act, June 16, 1906; Kirkman v. Bird, 22 Utah,
115, 58 L. R. A. 669, 61 Pac. 341, upholding Sess. Laws 1899, p. 99, § 7,
exempting earnings of heads of families from garnishment; Hopkins v.
999 DARTMOUTH COLLEGE V. WOODWARD. 4 Wheat. 518-715
City of Richmond, 117 Va. 714, 715, 86 S. C. 145, holding colored man,
who purchased residence in district of city set apart by prior ordinance
to white people, cannot assail ordinance,* •Dow v. Railroad, 67 N. H. 50, 36
Atl. 535, arguendo.
Right to remove officer. Note, 8 £. R. 0. 266.
Power to regulate or prohibit private schools. Note, 29 L. R. A.
(N. S.) 54.
Oliarteni of pablic corporations are not wltbln protection of obligation
clause, but legislature may not take private property even of such corporations.
Approved in Saginaw County Suprs. v. Hubinger, 137 Mich. 76, 100
N. W. 263, upholding Loc. Acts 1899, p. 221, No. 419, as amended in 1901,
providing for county road system in certain county, and impliedly repealing
prior act; MacMullen v. Middletown, 187 N. Y. 42, 11 L, R. A. (N. S.) 391,
79 N. E. 864, upholding Middletown City charter, § 30, providing that no
action shall be maintained against city for injuries from snow or ice on
sidewalk unless written notice be given to city council; Asbury v. Town of
Albemarle, 162 N. C. 254, 44 L. R. A. (N. S.) 1189, 78 S. E. 150, holding
invalid Battle Act (Pub. Laws 1911, c. 86), requiring towns, before con-
struction of public water system, to purchase or condemn any private
system already constructed; Mial v. Ellington, 134 N. C. 140, 65 L. R. A.
69, 46 S. E. 964, officer appointed for definite time to public office has no
vested property interest therein, or contract right thereto, of which legis-
lature cannot deprive him; dissenting opinion in Ex parte Lewis, 45 Tex.
Cr. 37, 108 Am. St. Rep. 929, 73 S. W. 823, majority holding Galveston
special charter of 1901 violates principle of local self -government ; State
V. Bryan, 50 Fla. 359, 39 South. 950, and Abbott v. Beddingfield, 125 N. C.
279, 34 S. E. 418, both arguendo.
A corporation is an artificial being, invisible, intangible and existing only
in contemplation of law.
In applying this definition it has been hel3 that associations formed
under the New York general banking law of 1838 were not corporations,
properly speaking, for the reason, among others, that they were authorized
to sue in the name of their executive officer rather than as a distinct
entity: Warner v. Beers, 23 Wend. 124, 143, 155; Gifford v. Livingston, 2
Denio, 395. So, an individual banker is not to be regarded as a corpora-
tion sole: Codd v. Rathbone, 19 N. Y. 40. An organization known as the
'*Canebrake Agricultural District ''has been declared to .be a corporation
in the nature of a municipal corporation : Dillard v. Webb, 65 Ala. 474. A
''partnership association limited" with a board of managers, individual
liability for debts, power to sue and be sued, to hold and convey real estate
in the corporate name, is a corporation, and a citizen of Pennsylvania,
within the meaning of the Federal statute respecting diverse citizenship as
a basis of Federal jurisdiction : Andrews Bros. Co. v. Youngstown Coke Co.,
86 Fed. 589. It follows from the proposition that a corporation is a mere
creature of law, that it cannot act beyond the territory which that law
covers, except by comity : Bank of Augusta v. Earle, 13 Pet. 587, 10 L. Ed.
4 Wheat. 518-715 NOTES ON U. S, REPORTS. 1000
307; Land Grant Ry. Co. v. Coffey Co., 6 Kan. 253. This principle of
recognition on grounds of comity will not prevail, however, where the
corporation by the enabling act*is prohibited from carrying on business
in the place of its domicile : Land Grant Ry. Co. v. Coffey Co., 6 Kan. 253.
More miscellaneously, the definition has been cited in holding that a
breach of trust by corporate directors is a violation of duty to the corpora-
tion and not its members, and to be prosecuted therefor by the corporation,
Charkstown Ins. Co. v. Sebring, 5 Ricli. Eq. 346; in holding void a pro-
vision that the different branches of a State bank might severally sue.
State V. Ashley, 1 Ark. 543; in holding that a tax upon the deposits in
a bank was a tax upon the bank as an existing entity, rendering it imma-
terial that the deposits consisted in large part of nontaxable government
bonds, Coite v. Society for Savings, 32 Conn. 173, 185 ; • in holding a
municipality bound by a consent decree sanctioned by its officers, Union
Bank v. Board of Commissioners, 90 Fed. 12; in holding that a corporation
created with power of "perpetual succession" was not controlled by the
general enactment limiting the term of corporate existence to ten years,
since immortality i^ by the definition a legitimate attribute of corjwratc
bodies. State v. Stormont, 24 Kan. 690; but see State v. Payne, 129 Mo.
478, 31 S. W. 799; in holding that an exemption from taxation contained
in a statute merely entitled '*an act to incorporate" the Memphis etc.
R. R. Co., did not violate the familiar prohibition against embodying in
a statute matters not set forth in the title. Goldsmith v. Rome R. R. Co.,
62 Ga. 481; in sustaining a statute authorizing condemnation proceedings
on behalf of a railroad on the ground that the use was public, Swan v.
Williams, 2 Mich. 433; in holding that in its dealings with the Pacific
Railroads, the government, although dealing with corporate bodies, yet
dealt with reference to the security of the individual stockholders and
intended to take advantage of no local statute creating a personal liability
in the case of one of them, United States v, Stanford, 70 Fed. 358, 44
U. S. App. 68; in holding that a corporate officer might, as notary, take an
acknowledgment of a mortgage to the corporation, Horbach v. Tyrrell, 48
Neb. 526, 67 N. W. 490 ; and in deciding that those owning all the corporate
stock might not sue individually, but must proceed in the corporate name,
Cutshaw V. Fargo, 8 Ind. App. 694, 34 N. E. 377; and in Louisville R. R.
Co. V. Letson, 2 How. 558, 11 L. Ed. 878, holding a corporation a person
for jurisdictional purposes. Cited more generally as to the nature of a
corporation in Bergen etc. Co. v. Cole, 26 N. J. L. 365, Hope v. Valley
City Co., 25 W.'Va. 797, Medical etc. Soc. v. Weatherby, 75 Ala. 253,
Thomas v. Dakin, 22 Wend. 100 , Chicago etc. R. .R. Co. v. Union Pacific
R. R. Co., 47 Fed. 19, 51 Fed. 324, 10 U. S. App. 98, State v. Payne, 129
Mo. 478, 31 S. W. 799, and Planters ' Bank v. Sharpe, 6 How. 331, 332, 337,
12 L. Ed. 460, 462.
Approved in Waters-Pierce Oil Co. v. Texas, 177 U. S. 44, 44 L. Ed.
664, 20 Sup. Ct. 524, upholding Texas act of March 30, 1890, prohibiting
foreign corporations violating its provisions from doing business in the
State; North British & Mercantile Co. v. Craig, 106 Tenn. 630, 62 S. W.
157, holding that under Acts 1895, c. 160, §§5, 12, insurance commissioner
1001 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
could revoke license of any company for breach of common-law obligation ;
Town of Clarendon v. Rutland R. R. Co., 75 Vt. 15, 52 Atl. 1060, upholding
Vt. Stats., §§ 3844-3846, requiring railroad to maintain and repair cross-
ings over its road and giving right of action against it for cost of such
maintenance and repair in event of default in this regard ; People 's Pleas-
ure Park Co. v. Rohleder, 109 Va. 446, 61 S. E. 796, holding corporation
of colored persons not ''colored person" within covenant in deed.
A coiporation possesses only those powers wUcli its charter confers either
expressly or as incidental to its very existence.
Approved in United States v. MacAndrews & Forbes Co., 149 Fed. 835,
corporation may be indicted for conspiracy to violate anti-trust law;
Seattle Gas etc. Electric Co. v. Citizens' Light etc. Power Co., 123 Fed. 591,
holding New Jersey corporation organized under general laws and not
under gas act cannot sell gas in another State; Bluthenthal & Bickert v.
Town of Headland, 132 Ala. 251, 90 Am. St. Rep. 905, 31 South. 87, holding
under Acts 1898, p. 108, § 9, no action lies against city for liquors bought
on credit ; Timberlake v. -Supreme Commandery, 208 Mass. 422, 36 L. R. A.
(N. S.) 597, 94 N. E. 688, holding, where fraternal benefit association
attempts to consolidate like association, and recognizes rights of member
of latter, member may recover, though attempted consolidation is void;
Nicollet Nat. Bank v. Frisk-Turner Co., 71 Minn. 417, 70 Am. St. Rep.
336, 74 N. W. 161, holding incorporation for purpose of manufacturing
and selling clothing and all other incidental business constituted a manu-
facturing corporation within Minn. Const., art. X, §3; State v. Missouri
Athletic Club, 261 Mo. 598, L. R. A, 19150, 876. 170 S. W. 909, holding
social club, incorporated under Rev. Stats. 1909, §§ 3432-3445, providing
for formation of benevolent, etc., associations, cannot sell intoxicating
liquors to its members; Victor v. Louise Cotton Mills, 148 N. C. 112,
16 Ann. Gas. 291, 16 L. R. A. (N. S.) 1020, 61 S. E. 650, holding that in
absence of express authority by charter manufacturing corporation cannot
pay premium on polic/ on life of officer and assigned by him to corporation.
A number of citing cases apply the definition to questions as to the
extent of the powers of a municipal corporation. The principal case is
cited to this point in holding that a city council authorized 'Ho grant
licenses" might not fix the license fee at such an amount as to be prac-
tically prohibitory in its operation (Ex parte Burnett, 30 Ala. 465) ; in
holding that a city authorized to establish ferries might employ an attorney
to safeguard its rights respecting such property (Waterbury v. Laredo,
60 Tex. 521) ; a municipality may borrow money for municipal purposes
(Bank of Chillicothe v. Chillicothe, 7 Ohio (pt. II), 36, 30 Am. Dec. 187);
but not to guarantee bonds for a navigable canal under a charter authoriz-
ing only construction of canals for sewerage purposes (Louisiana Bank v.
Orleans, 3 La. Ann. 309). And in Louisiana it has been held that the
police jury of a parish has no authority to raise funds by the issue of
notes and bonds: Brcaux v. Iberville, 23 La. Ann. 236. A city council
may levy a tax for the construction of a canal for the supply of water
under general authority to pass laws ** necessary for the security, welfare
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 1002
and convenience of the city": Frederick v. Augusta, 5 Ga. 567. So also
the leading case is cited to this x>oint in holding a street commissioner
of a municipality authorized to employ laborers, and the city to be liable
for their services (Beers v. Dalles City, 16 Or. 337, 18 Pac. 837) ; in holding
valid a State statute authorizing a county municipality to purchase rail-
road bonds (Ex parte Selma etc. R. R. Co., 45 Ala. 725, 6 Am. Rep. 725) ;
in holding that in the absence of special statute there is no general duty
imposed upon- a eounty to keep in repair bridges which it has erected
(Covington v. Kinney, 45 Ala. 182) ; and in holding that commissioners
authorized to make necessary contracts for building, furnishing or repair-
ing bridges, have no right to destroy them (Commissioners of Gallea Co.
v. Holcomb, 7 Ohio (pt. I), 233). The definition is also applied in deter-
mining whether a parish was eleemosynary in its nature: Hale v. Everett,
53 N. H. 248.
Quite as numerous are the applications of the proposition to questions
arising under railroad charters. In so applying the principle it has been
held that such a corporation may not mortgage its franchises under an
authority to mortgage the ''road income and other property" (Pallan* v.
Cincinnati etc. IJi. R. Co., 4 Biss. 41, Fed. Cas. 11,461) ; nor buy other roads
under an authority to operate a railroad (Deaderick v. Wilson, 8 Baxt.
133) ; nor buy and sell land under a charter permitting the acquisition of
lands for right of way, depots, etc. (Pacific R. R. Co. v. Seely, 45 Mo. 220,
100 Am. Dec. 375) ; nor may a plank road company guarantee the debts of
its construction company (Madison etc. Co. v. Watertown etc. Co., 7 Wis.
80) ; a railroad has no implied power to exempt itself by contract from
liability for loss by fire (Mobile etc. R. R. Co. v, Franks, 41 Miss. 511) ;
but it may change its road gauge if the charter be silent on the subject
(State V. Richmond etc. R. R. Co., 72 N. C. 641) ; and may make contracts
for transportation for a fixed future period within the maximum rate
prescribed by its charter: Railroad Co. v. Furnace Co., 37 Ohio St. 330,
41 Am. Bep. 514. Elsewhere the proposition here under consideration is
affirmed in holding that a railroad corporation whose charter was silent
upon the subject of cattle-guards was not relieved from the operation of
a subsequent law requiring them (Thorpe v. Rutland etc. R. R. Co., 27 Vt.
144) ; and that a railroad authorized to establish its terminus in a certain
portion of a city might, nevertheless, validly be prohibited from propelling
its cars by steam through the city streets (Richmond etc. R. R. Co. v. Rich-
mond, 26 Gratt. 95) ; so also that si right to transport passengers to a city
confers no power to transport them through the city: Macon v. Macon
etc. R. R. Co., 7 Ga. 224. A right to operate a ferry, it has been held,
is not to be implied under a general power to operate a railroad (State
V. Wilmington etc. R. R. Co., Busb. L. 236) ; nor may a railroad buy stock
in another concern: Pearson v. Concord R. R. Co., 62 N. H. 549, 13 Am.
St. Bep. 603.
The citations show several cases which have relied upon this affirmation
of Dartmouth College v. Woodward, and involve the' extent of the powers
of banking corporations. It has been held that they have an implied
right to make an assignment of their property for the payment of debts
1003 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 518-715
(Ex parte Conway, 4 Ark. 351) ; that a bank authorized to sell surren-
dered shares and invest in bonds and mortgages, might take bonds and
mortgages from an individual directly, in consideration of shares sold to
him (Southern etc. Co. v. Lanier, 5 Fla. 171) ; and that a bank may, in
the absence of express prohibition, take a chattel mortgage for an ante-
cedent debt under its implied power to protect itself from loss: Spaiford ,
V. First Nat. Bank, 37 Iowa, 183, 18 Am. Rep. 8. So also that it has
implied power to borrow money and execute its bonds therefor: Curtis v.
Leavitt, 15 N. Y. 209, 257. But it has been held that authority to do a
banking business does not include the power to buy promissory notes
(Farmers' etc. Bank v. Baldwin, 23 Minn. 202, 23 Am. Rep. 684); nor
may a bank charge a greater rate of interest on bills of exchange than its
charter authorizes (Bank of Chillicothe v. Swayne, 8 Ohio, 287, 32 Am.
Dec. 715) ; or take mortgages for future advances under a statute restrict-
ing the taking of mortgages to those given to secure previously contracted
debts (Fowler v. Scully, 72 Pa. St. 461, 13 Am. Rep, 702) ; or buy lands to
sell again under a charter authorizing only the x>ossession of necessary
realty (Metropolitan Bank v. Godfrey, 23 111. 552; Bank of Michigan v.
Niles, 1 Doug. (Mich.) 404, 41 Am. Dec. 577) ; or buy and deal m State
or private stocks: Talraage v. Pell, 7 N. Y. 340; Franklin Co. v. Lewiston
etc. Co., 68 Me. 45, 28 Am. Rep. 11. And furthermore, it has been held
that as the power to assign promissory notes was not to be implied from
authority to do a general banking business, the State might subsequently
pass a law prohibiting such assignments (Mclntyre v. Ingraham, 35 Miss.
55) ; a grant of power "to hold any estate, real or personal, and the same
to sell, grant or dispose of, or bind by mortgage" does not confer bank-
ing powers: State v. Granville etc. Soc, 11 Ohio, 12. A power to *' carry
on business of receiving money on deposit" does not authorize the handling
of special notes and money for escrow: First National Bank v. Citizens'
Bank, 9 Fed. Caa. 87.
Aside from the foregoing applications of Chief Justice Marshall's prop-
osition, it has been relied upon in holding that a life insurance company
is without power to purchase notes, bonds or mortgages outstanding against
one insured for the purpose of counterclaim (Straus v. Eagle Ins. Co., 5
Ohio St. 61 ; Kansas Ins. (Ho. v. Craft, 18 Kan. 285) ; or to issue its bonds
in exchange for bonds and mortgages of an individual (Smith v. Alabama
etc. Co., 4 Ala. 561). A canal company authorized to collect tolls on
freights may not impose tolls upon passengers or boats (Perrine v. Chesa-
peake etc. Co., 9 How. 184, 13 L. Ed. 97) ; a concern incorporated as the
** Planters' Cotton Press, Storage and Transfer Association" is not author-
ized to weigh cotton to the exclusion of an officer appointed by a munici-
pality for that purpose (Gaines v. Coates, 51 Miss. 342) ; a charter right
''to buy and sell dairy products, especially milk, butter, cheese and ice-
cream ' ' confers no power to deal in oysters (Bowman Dairy Co. v. Mooney,
41 Mo. App. 676) ; nor does a right to manufacture clothing confer a right
to buy and sell it (Nicollet etc. Bank v. Frisk etc. Co., 74 N. W. 161). It
has been held that a society incorporated for the purpose of ''colonizing,
with their o\jn consent, in Africa, the free people of color residing
in the United States, and for no other purpose whatever," could not
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 1004
take a bequest of all the ''slaves" of a testator for the purpose of send-
ing them to Africa (American etc. Soc. v. Gartrell, 23 Ga. 452); the
power to mortgage all the corporate property 'Tor the accommodation
of stockholders personally is not to be implied (Washington Mill Co. v,
Sprague etc. Co., 19 Wash. 173, 52 Pac. 1070). It is implied froiji a charter
right to lay gas-pipes in city streets that the right is subject to the power
of the city to change the grade of its streets : Roanoke Gas Co. v. Roanoke,
88 Va. 824, 14 S. E. 670. A "house of refuge" has an implied power to
chastise inmates for insubordination, but an officer of such a concern
is personally liable for an unauthorized assault : Perry v. House of Refuge,
G3 Md. 23, 52 Am. Rep. 498. A corporation authorized by the law of its
domicile to administer upon estates of decedents may do so in other juris-
dictions (Fidelity etc. Co. v. Niven, 5 Houst. 429, 1 Am. St. Rep. 156);
a requirement of a bridge company's charter that the rates of toll be posted
at each end of its bridge is a condition precedent to the right to take toll
(Bonham v. Taylor, 10 Ohio, 109; the power to execute promissory notes,
when merely implied, will not be held to rest in the president and secre-
tary of a w^ater company in the absence of express authorization in the
by-laws (Edwards v. Carson Water Co., 21 Nev. 479, 34 Pac. 384) ; cor-
porate directors have no power unless it be expressly conferred, to make
over the corporate property to another concern: Flagstaff S. M. Co. v.
Patrick, 2 Utah, 314. The principal case is also cited upon this point in
holding that exclusive privileges granted by special statu^te to individuals
might thereafter be transferred to a corporation, although the Constitution
prohibited to the latter such grants by special act (San Luis Water Co. v.
Estrada, 117 Cal. 177, 48 Pac. 1078) ; and by a dissenting judge in a Louisi-
ana case involving the question of municipal power to grant wharf and
warehouse franchises (Louisiana etc. Co. v. Illinois etc. R. R. Co., 49 La.
Ann. 539, 551, 561, 21 South. 894, 899, 903) ; and in a case holding that
the execution sale of a railroad could not divest the corporation of its
individual existence and confer it elsewhere: Higgins v. Downward, 8
Houst. 240, 40 Am. St. Rep. 142, 14 Atl. 721. The College Case is cited
also to the point that a coi*poration may contract within its powers just
as a natural person may, in Selma v. Mullen, 46 Ala. 414, holding a city
bound by verbal promise of additional compensation made by the municipal
council; to the point that the liability of a corporation on its covenant is
the same as that of an individual in Board of Commissioners v. Young,
59 Fed. 108, 16 U. S. App. 253.
Benefit to State arising from objects for whicli corporations are created is
sole consideration for grant of charter.
Approved in Dow v. Railroad, 67 N. H. 45, 36 Atl. 532, holding lease of
railroad is invalid as against dissenting stockholders, though prior to lease
a statute was passed authorizing such lease; State v. Central Lumber Co.,
24 S. D. 166, 42 L. R. A. (N. S.) 804. 123 N. W. 514, holding Laws 1907,
p. 196, c. 131, § 3, sufficiently prohibits acts set out in section 1 to State
offen$e under Pen. Code, § 3; St. Louis v. Gas Co., 5 Mo. App. 504, in
upholding the contract right of a municipality to purchase a city gas com-
pany's plant; Daughdrill v. Insurance Co., 31 Ala. 98, sustatning a charter
1005 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
exemption from taxation; Coast Line R. R. Co. v. Mayor etc., 30 Fed. 649;
dissenting opinion in Low v. Blackford, 87 Fed. 405^ arguendo.
Consideration stipiilated for 1)7 donors to eleemosynary corporations is per-
petual application of fond to its object in mode prescribed by tbemselves.
Approved in Dow v. Railroad, 67 N. H. 37, 38, 36 Atl. 529, holding lease
of railroad is invalid as i^ainst dissenting stockholders, though prior to
lease a statute was passed authorizing such lease; Baptist University v.
Borden, 132 N. C. 494, 44 S. E. 53, construing devise to a university;
Mason v. Atlanta Fire Ins. Co., 70 6a. 609, 48 Am. Rep. 586, heirs of de-
ceased member of volunteer fire department which could acquire property
only by donation, had no interest in its property on its dissolution ; Williams
V. Williams, 8 N. Y. 534, holding a devise to charitable uses not within the
rule against perpetuities. Cited in Ould v. Washington Hospital, 95 U. S.
312, 24 L. Ed. 452; Gould v. Taylor Orphan Asylum, 46 Wis. 117, 50 N. W.
423, holding rule against perpetuities inapplicable to charitable devises;
Stewart v. Hamilton College, 2 Denio, 425, holding promise to subscribe to
college funds was ux>on valuable consideration and enforceable.
If case is within letter of Constitution it is not excluded tiom its meaning
by showing that it was not in minds of tliose who framed and adopted it.
Cited in Styles v. Tyler, 64 Conn. 474, 30 Atl. 180 , Santa Clara v. South-
cm Pacific R. R. Co., 18 Fed. 397, 9 Sawy. 185, Pollock v. Farmers' Loan
& Trust Co., 158 U. S. 632, 39 L. Ed. 1124, 15 Sup. Ct. 918, following rule ;
State V. Main, 69 Conn. 131, 61 Am. St Rep. 36, 37 Atl. 82, construing a
statute.
By Revolution duties and powjsrs of government devolved upon people,
and people of New Hampshire, tberef ore, succeeded to obligations upon crown,
created by grant of Dartmouth College charter.
Approved in American Loan & Trust Co. v. Grand Rivers Co., 159 Fed.
779, holding invfdid Rev. Stats. U. S., § 996, requiring money paid into
Federal courts and unclaimed for ten years to be turned over to United
States ; Bennett v. Nichols, 9 Ariz. 146, 80 Pac. 395, holding Act March 19,
1891, exempting railroad from taxation for twenty years not inconsistent
with Rev. Stats. U. S. 1878, § 1851 ; Rhode Island v. Massachusetts, 12 Pet.
751, 9 L. Ed. 1271, upholding Federal jurisdiction of a boundary contro-
versy between two States; Church etc. v. United States, 136 U. S. 57, 34
L. Ed. 496, 10 Sup. Ct. 808, sustaining act of Congress annulling the Mor-.
mon church charter; Bonaparte v. Camden etc. R. R. Co., 1 Bald. 220, 223,
Fed. Cas. 1617, affirming the existence of the power of eminent domain,
notwithstanding the silence of the Constitution upon the point; Society
etc. V. New Haven, 8 Wheat. 481, 5 L. Ed. 666, upholding right of corpora-
tion chartered by the crown prior to the Revolution; Cherokee Nation v.
Georgia, 5 Pet. 47, 8 L. Ed. 41, discussing powers of State governments.
Contract is transaction 4>etween two or more persons, in which each recipro-
cally acquires right against, and comes under obligation to other.
Appnnred in United Transp. & Lighterage Co. v. New York etc. Transp.
Line, 180 Fed. 904, holding, when libelant i)erformed lighterage services
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 1006
for respondent corporation for many years under agreement fixing prices,
and new officers succeeded to respondent's business, new contract was
thereby created; Dow /v. Railroad, 67 N. H. 40, 36 Atl. 530, holding lease
of railroad is invalid as against dissenting stockholders, though prior to
lease a statute was passed authorizing such lease.
Criticised in Cochran ▼. Van S^rley, 20 Wend. 383, 82 Am. Dec. 582,
upholding a private legislative act authorizing the sale of an infants'
property.
A leglslatiye grant is a contract.
The principal case has likewise been cited in cases other than those in-
volving corporate charters and franchises, in support of the proposition
that a legislative grant is a contract within the meaning of the obligation
clause: Bruce v. Schuyler, 4 Gilm. (111.) 278, 46 Am. Dec. 460; Trustees v.
Rider, 13 Conn. 96 ; Winter v. Jones, 10 Ga. 196, 54 Am. Dec. 382 ; Illinois
Central R. R. Co. v. Illinois, 146 U. S. 475, 36 L, Ed. 1051, 13 Sup. Ct. 127 ;
Eakin v. Raub, 12 Serg. & R. 365, 371 ; Satterlee v. Matthewson, 16 Sei^.
& R. 185; State v. Blake, 35 N. J. L. 215; Doe ex dera. v. Buford, 1 Dana,
488; State v. Burgess, 23 La. Ann. 227; Ex parte Goodin, 67 Mo. 638; Prince
William School Board v. Stuart, 80 Va. 80 ; Cary Library v. Bliss, 151 Mass.
375, 378, 25 N. E. 94, 95; Glover v. Powell, 10 N. J. Eq. 229; Beck with v.
Rector etc., 69 Ga, 571, 574; Brownsville v. Basse, 36 Tex. 501; United
States V. Stockslager, 129 U. S. 477, 32 L. Ed. 787, 9 Sup. Ct. 384. Accord-
ingly, legislation attempting to repeal a grant of land on the ground that
its terms have not been complied with, raises a judicial question, and if it
be found that the terms of the grant have in fact been fulfilled, the grant
is inviolable : State v. Burgess, 23 La. Ann. 227. A grant to a municipality
has been held to be protected under this principle: Brownsville* v. Basse,
36 Tex. 501. A statute which required adjoining owners to maintain a
dam previously constructed, which had been effective in reclaiming con-
siderable land from the ocean tides, is a grant of power, or property, at
least to an extent sufficient to protect the owners from a subsequent statute
attempting to direct the removal of the dam entirely: Glover v. Powell,
10 N. J. Eq. 229. In repealing a somewhat similar statute providing assess-
ment for the grading of land, the same legislature at a later date expressly
exempted all districts in which the statute had been acted upon: State v.
Blake, 35 N. J. L. 215. A Missouri case holds that a member of a corpo-
ration of fire wardens, who had earned exemption from jury duties by
seven years' service as fireman, had a vested right to such exemption which
might not be impaired by subsequent legislation: Ex parte Goodin, 67 Mo.
638. Again, a grant from C. to a certain town, of money for a library,
upoii condition, among other things, that it be managed by the selectmen
of the town, is violated by a statute seeking to create a library corporation
and vest' the property in the town library therein : Cary Library v. Bliss,
151 Mass. 375, 25 N. E. 94. And see Beckwith v. Rector etc., 69 Ga. 571,
574. If, however, a grant be as yet executory and haa not vested in pos-
session, it may be withdrawn. This was held to have taken place in a
statute changing the disposition of a fund, part of which had previously
1007 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
been directed to be giveu to B. but which had not yet been collected : Trus-
toes V. Rider, 13 Conn. 96. Upon this principle it is also held that laws
altering the method of acquiring title to land from the State become invalid
if applied to pending transactions; and must, therefore, be purely pros-
pective in their operation: Bruce v. Schuyler, 4 Gilm. (111.) 278, 46 Am. Dec.
460; Winter v. Jones, 10 Ga. 196, 54 Am. Dec. 882. And again that a grant
by Congress unexecuted by the land department might be suspended : United
States v. Stocklager, 129 U. S. 477, 32 L. Ed. 787, 9 Sup. Ct^ 384. But a
municipal charter provision declaring that streets should be improved at
expense of abutting owners, and when once so improved should never bo
so again, does not raise any contract protecting owners against this pro-
ceeding subsequently: Ladd v. City of Portland, 32 Or. 273, 274, 67 Am,
St. Rep. 527, 528, 51 Pac. 655. It is a corollary of this proposition that
the obligation clause applies to contracts between the State and its citizens
as well as to private contracts. The principal case has been cited to this
point in Corbin v. Board, 1 McCrary, 527, s. c, 3 Fed. 362; McCauley v.
Brooks, 16 Cal. 30 ; Danolds v. State, 89 N. Y. 45, 42 Am. Rep. 280 ; Canal
Co. V. Railroad Co., 4 Gill & J. 128, 9 Pac. 36; State v. Young, 29 Minn. 539,
9 N. W. 747. The holding has been criticised in a Colorado case: People
ex rel. Seeley v. Hall, 8 Colo. 490, 9 Pac. 36. So also it is cited to the
point that corporations are as much within the obligation clause as indi-
viduals : Santa Clara R. R. Co. Cases, 9 Sawy. 184, 185, 18 Fed. 397 ; San
Mateo R. R. Tax Cases, 8 Sawy. 261, 13 Fed. 740. In accordance with this
principle, a statute rescinding a contract already made for the building of
a State penitentiary, and providing that no compensation should be paid
for its breach^ infringes the constitutional prohibition under consideration :
Danolds v. State, 89 N. Y. 45, 42 Am. Rep. 280. As also a statute attempt-
ing to alter the terms of a contract for the operation of a State penitenti-
ary, between the State and the warden: McCauley v. Brooks, 16 Cal. 30.
County warrants issued at a time when the law required that they be
received in payment of taxes may be so used although this requirement
has been repealed : People ex rel. Seeley v. Hall, 8 Colo. 490, 9 Pao. 36. It
is, of course, otherwise as to warrants issued subsequent to the repeal.
The repeal of a law requiring the refunding of money paid at an irregular
tax sale, impairs the obligation of a contract if applied retrospectively to
prior transactions: Corbin v. Board, 1 MoCrary, 527, s. c, 3 Fed. 362. A
'Constitutional amendment requiring a ratification, by the people, of a stal^ite
levying a tax to meet certain railroad bonds theretofore guaranteed by the
State, is invalid as tending to impair the absolute obligation of the State
to pay them : State v. Young, 29 Minn. 539, 9 N. W. 747.
Approved also in Board of Trustees v. Berryman, 156 Fed. 117, holding
suit by educational corporation, under alleged exemption in charter, to
restirain public officers from taxing its property within jurisdiction of
Federal courts; Chicago etc. Ry. Co. v. Ludwig, 156 Fed. 157, holding that
State, which grants to foreign corporation franchise to do business in State
in nature of contract, cannot withdraw such permission at pleasure; Mer-
cantile Trust & Deposit Co. v. Collins Park & B. R; Co., 99 Fed. 817, hold-
ing grant of street railroad franchise by municipality is a State law witliin
4 Wheat. 518-715 ^ NOTES ON U. S. REPORTS. 1008
contract obligation clause ; State v. Board of School Commrs., 183 Ala. 577,
63 South. 83, holding after Act Cong. March 2, 1819, Congress could not
control disposition of school lands granted to State by such act; De Bergere
V. Chaves, 14 N. M. 364, 51 L. R. A. (N. S.) 50, 93 Pac. 764, holding paper
sued on to be executory' contract for giving of deed, and not deed ; dissent-
ing opinion in Rochester v, Rochester Ry. Co., 182 N. Y. 124, 70 L. R. A.
773, 74 N. E. 961, majority holding where railroad purchased at foreclosure
sale franchise of prior company, immunity from contribution for new pave-
ments conferred by statute on such company was not contract right of
which company could not be deprived by subsequent statute.
The case has been distinguished on this point Jn Atlantic Coast Line R.
Co. V. City of Goldsboro, 232 U. S. 556, 58 L. Ed, 725, 34 Sup. Ct. 364, hold-
ing city may forbid railway, through whose acquiescence part of its right
of way not occupied by tracks became city 's- principal business street, from
shifting cars on part of such tracks in center of city except during desig-
nated hours; Osborne v. Clark, 204 U. S. 667, 51 L. Ed. 625, 27 Sup. Ct. 319,
holding lease made by trustees of Carrick Academy to Winchester Normal
College, in pursuance of act of Tennessee, not within contract obligation
clause of Federal Constitution ; Spencer v. Seaboard etc. Ry. Co., 137 N. C.
121, 49 S. E. 1017, permitting consolidation of railroads under act of 1901,
authorizing payment of value of dissenting stock, though stock purchased
prior to Constitution reserving right to State to amend charters; Railroad
Commission v. Louisville etc. R. Co., 140 Ga. 828, L. R. A, 1915E, 902, 80
S. E. 332, upholding regulations of State Railroad Commission concerning
mileage and penny scrip-books; Ver Steeg v. Wabash R. Co., 250 Mo. 75,
156 S. W. 692, holding, under facts, railroad did not acquire irrevocable
right to use street by franchise from State to construct and operate rail-
road thereon.
Obligation of a cliarter on part of incorporators is that of performinir
functions for which it is created.
Cited in Swift v. Richardson, 7 Houst. 355, 366, 32 Atl. 144, 145; Illinois
etc. R. R. Co. v. Bentley, 64 111. 441, following rule; Attorney General v-
Bank of Michigan, Hare (Mich.), 326, to point that acceptance of a charter
will be presumed; State v. Geoi^a Med. Soc, 38 Ga. 626, 95 Am. Dec. 410,
to point that acceptance of charter subjects the corporation to proper legal
supervision by the State.
Charter of corporation may be forfeited for abuse of franchises, or for
negligence.
Approved in State v. French Lick Springs Hotel Co., 42 Ind. App. 287,
85 N. E^ 725, holding charter terminable for breach of criminal laws.
Nonperformance of condition in grant of franchise, whether judicial
act declaring forfeiture is necessary. Note, 5 Am. St. Bep. 805.
By common law visitatorial power vests in donor and his heirs, and upon
incorporation, in trustees.
Approved in Guthrie v. Harkness, 199 U. S. 157, 158, 50 L. Ed. 183, 134,
26 Sup. Ct. 4, common-law right of stockholder to inspect books of corpo-
1009 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 618-715
ration is not restricted as to national banks by Rev. Stats., § 5241 ; State r.
Board of Trust of Vanderbilt University, 129 Tenn. 345, 1€4 S. W. 1169,
holding, under facts, bishops of Methodist Episcopal Church, South, not
vested with visitatorial powers over denominational university founded by
individual donor ; Sanderson v. White, 18 Pick. 335, 29 Am. Dec. 595, hold-
ing rule also applicable in this country; Nelson v. Cushing, 2 Cush. 530, 531,
holding that courts will not interfere with this power except for breach
of trust; Murdock, Appellant, etc., 7 Pick. 322, sustaining remotal of a
teacher by visitors; Union Baptist Assn. v. Huhn, 7 Tex. Civ. App. 252,
26 S. W. 756, Regents v. Williams, 9 Gill & J. 401, 402, 31 Am. Dec. 90, and
Chambers v. Baptist etc. Soc, 1 B. Mon. 218, as to visitatorial power vested
in corporate trustees. Cited as to power of amotion in State ex rel. Adams,
44 Mo. 586.
Right of donor or heirs to enforce proper administration of charitable
trust. Note, 3 L. B. A. (N. S.) 228.
Religion, charity and education are legatees capable of being beneficiaries
of a cbaiitable trust. ' <
Cited in Board of Education v. Bakewell, 122 HI. 351, 10 N. E. 384,
following rule; as to what constitutes an eleemosynary corporation, in
People etc. v. Fitch, 154 N. Y. 32, 47 N. E. 988, holding an institution for
instruction to the blind to be such; to the point that ^'seminary" some-
times means an institution of learning, in Chegard v. Mayor, 13 N. Y. 229,
denying that exemption of such institutions from taxation included a pri-
vate boarding school.
Public cori^rations are sncli as exist, for pQlAc political purposes, such as
towns, cities, parishes and counties; more accurately, they are such as are
founded by government for public purposes, where whole interests belong to
the government. But a corporation is private if its foundation is private, no
matter bow extensive its uses.
Under the definition of public and private corporations thus laid down
in the principal case, it has been held in a subsequent case, by a divided
court, that the university largely endowed out of lands granted by the
Federal government is a private corporation (Vincennes University v.
State, 14 How. 276, 281, 14 L. Ed. 419, 421) ; and in several other eases
educational institutions whose ' 'foundation" was found to be private were
declared private corporations, protected by the doctrine of the leading case :
Louisville v. University, 15 B. Mon. 669; People v. Cogswell, 113 Cal. 139,
45 Pac. 272 ; Allen v. McKean, 1 Sumn. 297, 298, 299, 301, Fed. Cas. 229 ;
American Asylum etc. v. Phoenix Bank, 4 Conn. 177, 10 Am. Dec. 118;
Ohio V. Neflf, 52 Ohio St. 404, 405, 40 N. E. 724; Board of Education v.
Bakewell, 122 111. 344, -10 N. E. 381 ; Cleveland v. Stewart, 3 Ga. 287, 291,
292 ; Drake v. Flewellen, 33 Ala. 108 ; Downing v. Board, 129 Ind. 449, 28
N. E. 125; Fuller v. Trustees etc., 6 Conn. 544, 545; and see Yarmouth v.
North Yarmouth, 34 Me. 418, 56 Am. Dec. 669; New Gloucester v. Brad-
l^ury, 11 Me. 122, 124, 126, 26 Am. Dec. 516, 518, 619, 520. And this is
true, although the institution be in part endowed by the State : Downing v.
I — 64
4 Wheat. 518-715 NOTES ON U. S. REPORTS. 1010
Board etc., 129 Ind. 449, 28 N. E. 125; Cleaveland v. Stewart, 3 Ga. 291, 292.
Being a private corporation, the enabling act will not be judicially noticed :
Drake v. Flewellen, 33 Ala. 108. But if an educational institution be
founded for public purposes and with public funds, it is public and subject
to legislative control; the State may, therefore, regulate the number of,
remove and appoint the trustees: Dart v. Houston, 22 Qa. 529, 530, 534;
University of Michigan v. Board of Education, 4 Mich. 225; State v.
Knowles, 16 Fla. 616. So also it may change the custody of the corporate
property and funds : Regents of University v. McConnell, 5 Neb. 427 ; Wam-
bersie v. Orange etc. Soc, 84 Va. 453, 5 S. E. 28. The proposition that
such i^n institution is public is relied upon in holding a defaulting uni-
versity treasurer within the law against embezzlement by public officers
(Spalding v. People, 172 111. 48, 49' N. E. 995) ; in holding valid a statute
providing for the forfeiture for default, by a purchaser of university lands
(University v. Winston, 5 Stew. & P. 22) ; and in holding a State Governor
without power to\remove and appoint visitors, where that power is reserved
by the legislature : Lewis v. Whittle, 77 Va. 419. And elsewhere a dissent-
ing judge has deemed the principal case ^authority against holding such an
institution to be public at all (Dickson v. People, 17 HI. 198) ; and it has
been held not public within the meaning of an act providing the rate of
interest upon ** public funds'*: State v. Carr, 111 Ind. 337, 12 N. E. 319.
The syllabus point has also been approved in the following recent cases:
Mannington v. Hocking Valley Ry. Co., 183 Fed. 153, holding railroad pri-
vate corporation; Estate of Royer, 123 Cal. 620, 56 Pac. 463, holding Cali-
fornia State University may take testamentary gift; State v. Barker, 110
Iowa, 107, 89 N. W. 208, passing upon validity of acts relating to appoint-
ment of trustees of municij^l waterworks; Ismon v. Loder, 135 Mich. 351,
07 N. W. 771, mortgage of agricultural society signed by president and
secretary thereof with character "[Seal]" opposite their signatures, is
mortgage of society; Brown v. Maplewood Cemetery Assn., 85 Minn. 505,
89 N. W. 875, holding cemetery association cannot be formed for purposes
of profit; Economic Power & Construction Co. v. Buffalo, 195 N. Y. 293,
88 N. E. 391, holding legislature cannot change real character of act as
public or private by statement therein.
In several cases respecting banking corporations, the definitions and
distinctions of the leading case are relied upon. Thus it has been held
that, although erected by the government, a bank whose stock is held by
private persons is private, and its charter protected by the contract clause
(State Bank of Ohio v: Knoop, 16 How. 380, 14 L. Ed< 982) ; although the
State couii; thought otherwise (Knoop v. Bank, 1 Ohio St. 618) ; that a
bank operated exclusively by the government is public and may be discon^
tinued by the State at its option, and the compensation of its directors
is for the State to determine (State v. State "Bank of South Carolina, 1
S. C. 67, State v. Curran, 12 Ark. 353, Branch Bank v. Collins, 7 Ala. 101) ;
that certain other banks were private corporations in deciding that a bank
charter may be forfeited for nonuser of its franchises, and in upholding as
a contract stipulation a provision of another charter granting to the bank
a summary method of obtaining judgment against its debtors: State v»
1011 DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat. 518-715
B&nk of South Carolina, 1 Spear, 502; Logwood v. Planters' etc. Bank,
Minor, 24.
Other cases deal with railroad corporations which have uniformly been
held to be private, although their nses are, in another sense, largely public.
Accordingly it has been held in cases citing Dartmouth College v. Wood-
ward to this point that the act of incorporating a railroad is a private
statute not requiring publication as a condition precedent to its enforce-
ment (Burhop V. Milwaukee, 21 Wis. 260) ; that such a concern is a ** busi-
ness" corporation within the benefits of a bankrupt act (Adams v. Boston
etc. R. R. Co., 1 Holmes, 31, Fed. Cas. 47; Sweatt v. Boston etc. R. R. Co.,
3 Cliff. 346, 348, 353, Fed, Cas. 13,684) ; that its bonds are not "public
stocks," exempt from taxation (Hale v. County Commissioners, 137 Mass.
114) ; that, although private, the right of eminent domain may be exercised
in its behalf (Bloodgood v. Mohawk etc. R. R. Co., 18 Wend. 51, 69, 31
Am. Dec. 348, 363; Bonaparte v. Camden etc. R. R. Co., 1 Bald. 220, 223,
Fed. Cas. 1617); but not if it is constructed for mere private use (Sadler
V. Langham, 34 Ala. 3^) ; and again, that although a private corporation,
the levy of a tax for the purchase of its stock by a county, is within the
meaning of a constitutional phrase "county purposes," and valid: Cotten
V. Leon Co., 6 Fla. 646. Elsewhere fhe principal case is cited in holding
a canal company to be a private corporation, and liable as such for negli-
gence (Hooker v. New Haven etc. Co., J5 Conn. 322) ; but nevertheless dis-
chaiging public uses and, therefore, capable of condemning and using prop-
erty under eminent domain (Rundle v. Delaware etc. Canal, 1 Wall. Jr. 291,
Fed. Cas. 12,139) ; and public to the extent that voting for corporate officera
by proxy would not be sustained; Taylor v. Griswold, 14 N. J, L. 234,
27 Am. Dec. 43. Again it is cited in holding a home for inebriates estab-
lished by private benefaction to be private, although supported in part
by the State (Washington Home v. Chicago, 157 111. 423, 41 N. E. 895) ;
in holding a corporation for slaughtering livestock to be private, because
owned and controlled by private individuals (Putnam v. Ruch, 56 Fed.
418) ; in holding an "industrial, mining and manufacturing corporation" to
be private within the meaning of an act permitting dissolution upon a three-
fourths vote (Wolfe v. Underwood, 91 Ala. 526, 8 South. 775) ; in holding
the "Boston Protective Department," an organization in the interests of
fire insurance companies to be private ; Newcomb v. Boston etc. Department,
151 Mass. 217, 24 N. E. 39. Another case cites the leading case on the dis-
tinction between public and private corporations, in holding that the legis-
lature cannot make certificates of S^ate indebtedness and auditors' warrants
receivable in payment of county taxes (Wells v. Cole, 27 Ark. 611) ; another
in holding that the public proi)erty of a county may not be sold on execu-
tion in favor of an individual creditor (Gooch v. Gregory, 65 N. C. 144) ;
and another in holding that as to its private property a municipality is
liable for negligence to the same extent as an individual: Bullmaster v.
St. Joseph, 70 Mo. App. 66.
Liability of public property to execution. Note, 27 Am. Rep. 85.
Distinction between public and private corporation. Note, 1 Ann.
Cas. 871.
4 Wheat. 518-716 NOTES ON U. S. REPORTS. 1012
Ijegislative power to impose burdens on municipalities and to control
their local administration and property. Note, 48 L. It. A. 486.
Where corporation is to be brought into existence by some future act of
incorporators, franchises remain in abeyance and attach when such acts are
done.
Cited in Williams v. State, 23 Tex. 287, in penalizing the issue of bank
notes prior to due incorporation; People v. Wren, 4 Scam. 280, dissenting
opinion; Vincennes Univ. v. State, 14 How. 275, 14 L. Ed. 419, holding that
a Federal grant to a seminary of learning attached upon its incorporation
two years later; Huff v. Winona etc. R. R. Co., 11 Minn. 192, involving
a grant of lands accompanying a charter.
Corporate franchises are legal estates vesting as soon as the corporation
is in esse.
Cited in Society for Sayings v. Coite, 6 Wall. 606, 18 L. Ed. 902, follow-
ing rule; Reed v. Beall, 42 Miss. 484, holding franchises property and a
legitimate object of taxation ; Hilliard v. Beattie, 67 N. H. 573, 39 Atl. 898,
holding assignment of suit pendente lite with power to settle passed to
representatives of grantee.
Powers coupled with an interest are. irrevocable.
Cited in Hilliard v. Beattie, 39 Atl. 898, following rule.
Survivorship of powers to executor. Note, 7 Am. Dec. 525*
Survival of power of sale. Note, 2 Am. Dec. 291.
Granting of corporation makes trust perpetual, but does not alter nature
of charity.
Approved in State v. Board of Trust of Vanderbilt University, 129 Tenn.
332, 164 S. W. 1165, holding, under facts, university was founded by in-
dividual who gave full endowment, and not original incorporators or con-
ferences they represented.
Legislature cannot change syvtem for government of literary tnstitutioii
provided for in charter.
Approved in Bloomfield v. Thompson, 134 La. 936, 64 South. 858, apply-
ing rule to change in control and management of railroad which affected
bondholders. •
Endower is founder.
Approved in State v. Trustees of Vanderbilt University, 129 Tenn. 352,
164 S. W. 1170, holding under facts, founder of denominational institution
was individual donor and not denomination.
Defendant having died since previous term, when cause was argued, judg-
ment was entered nunc pro tunc as of that term. *
Practice followed in Lasselle v. Bamett, 1 Blackf . 155.
Miscellaneous citations. Being a leading case upon the interpretation of
the obligation clause of the Federal Constitution, the Collie Case has come
1013 DARTMOUTH COLLEGE v. WOODWARD. 4 Wheat. 51&-715
in for its share of citation as a type or illustration of the operation of
that limitation: Blaire v. Williams, 4 Litt. (Ky.) 65; State v. Barker, 4
Kan. 384, 96 Am. Dec. 177; Scobey v. Gibson, 17 Ind. 577; Boyers v. Crane,
1 W. Va. 180; Ex parte Mayer, 27 Tex. 721; Synod of Dakota v. State,
2.S. D. 371, 50 N. W. 634; Knighton v. Bums, 10 Or. 550; Goldsmith v.
Brown, 5 Or. 420; Lowe v. Harris, 112 N. C. 481, 17 S. E. 540; Virginia
Coupon Cases, 114 U. S. 336, 29 L. Ed. 209, 5 Sup. Ct. 966 ; Wilder v. Lump-
kin, 4 Ga. 219; Cooper v. Allen, Harr. (Mich.) 85. In Goshen etc. Co, v.
Sears, 7 Conn. 92, it is cited to the point that as a charter is a contract,
it is sufficient to plead its effect and not the evidence of it; in Ogden v.
Saunders, 12 Wheat. 298, 6 L. Ed. 635, to the point that contracts are
governed by the lex loci contractus; in Moore v. Moore, 4 Dana (Ky.), 357,
29 Am. Dec. 420, to the point that equity has general jurisdiction over
trusts; in State v. Burk, 63 Ark. 64, 37 S. W. 409, to the point that no in-
dependent rights vest absolutely in trustees in the execution of their trust ;
Boody V. Watson, 64 N. H. 186, 9 Atl. 812, and Wooster v. Plymouth, 62
N. H. 210, referring incidentally to the decision in the state court; in
Murphy v. Bennett, 68 Cal. 536, 9 Pac. 743, to point that documents con-
stituting title are inserted in special verdict. Cited in In re Narragansett
Indians, 40 Atl. 364, remarking that Indians are not a corporation or quasi-
corporation and the college doctrine is, therefore, inapplicable; also in
State ex rel. v. Coosaw Min. Co., 45 Fed. 806, as instance of case where
Federal question was involved. Miscited in Lambourn v. Hartswick, 13
Sei^. & R. 122; Bloom v. Beebe, 15 La. Ann. 65. Misquoted in State v.
Canal etc. R. R. Co., 24 South. 271; Duvall v. Synod of Kansas etc., 222
Fed. 670, 138 C. C. A. 217, holding agreement of union between Presby-
terian Church of United States and Cumberland Presbyterian Church
vested in united body all property rights of two constituent organizations ;
State v. Kreutzberg, 114 Wis. 533, 91 Am. St. Bep. 936, 90 N. W. 1099,
holding void Rev. Stats., §§ 898, 4466b, as amended by Laws 1899, c. 332,
prohibiting discharge of union labor employees; dissenting opinion in
Hartigan v. Board of Regents W. Va. University, 49 W. Va. 39, 38 S. E.
709, majority holding a professor in University of West Virginia is not an
officer and he may be removed without notice or hearing; Currier v. Trus-
tees of Dartmouth College, 117 Fed. 47, 48, and Dow v. Railroad Co., 67
N. H. 31, 36 Atl. 525, both arguendo.
NOTES
ON THE
UNITED STATES REPORTS
V WHEATON.
6 Wheat. 1-76, 6 I.. Ed. 19, HOUSTON t. MOOBE.
Congress lias power to designate time at wMeb State militia called out by
President cliange character from State to national militia.
Cited in Antrim's Case, 1 Fed. Cas. 1064, and McCall's Case, 15 Fed. Cas.
1226, ai^endo. '
Congress cannot confer Jurisdiction upon any courts except those existing
under Constitution and laws of United States.
Approved in Minneapolis etc. R. R. Co. v. Bombolis, 241 U. S. 221, Ann.
Cas. 1916E, 505, 60 L. Ed. 966, 36 Sup. Ct. 595, holding State courts may
give effect, in actions under Federal Employers' Liability Act, to local
practice permitting less than unanimous verdict; Sexton v. California, 189
U. S. 323, 47 L. Ed. 834, 23 Sup. Ct. 544, statute gives State courts jurisdic-
tion to try for counterfeiting; Hoxie v. New York etc. R. Co., 82 Conn.
367, 17 Ann. Cas. 324, 73 Atl. 760, holding Congress cannot compel State
courts to assume jurisdiction of cases under Employers' Liability Act ; dis-
senting opinion in Kendall v. United States, 12 Pet. 645, 9 L. Ed. 1229,
majority holding Circuit Court had authority to compel postmaster-general,
by mandamus, to perform a ministerial duty; Steams v. United Stages, 2
Paine, 308, Fed. Cas. 13,341, holding Congress cannot compel State courts
to entertain jurisdiction ; In re Sheazle, 1 Wood. & M. 70, Fed. Cas. 12,734,
holding State court may surrender persons believed guilty of piracy under
act of parliament; United States v. Mackenzie, 30 Fed. Cas. 1165, 1166,
holding jurisdiction of court-martial is exclusive and final as to matters
submitted to such courts by Congress; Morgan v. Dudley, 18 B. Mon. 714,
68 Am. Dec. 739, holding Congress cannot authoritatively confer jurisdic-
tion on State courts to naturalize persons ; Rushworth v. Judges of Hudson
Pleas, 58 N. J. L. 98, 99, 100, 30 L. R. A. 763, 764, 32 Atl. 744, holding Con-
gress cannot, State objecting, force State courts to act on applications for
naturalization; First Nat. Bank v. Hubbard, 49 Vt. 3, 24 Am. Bep. 99,
holding State courts have jurisdiction of suits brought by national bank,
it not having been taken away; National Bank v. Eyre, 52 Iowa, 115, 2
N. W. 996, arguendo.
(1015)
6 Wnieat. 1-76 NOTES ON U. S. REPORTS, 1016
Distinguished in Symonds v. St. Louis etc. Ry. Co., 192 Fed.. 355, holding
Employers' Liability Act does not allow removal of causes under any con-
sideration; Zikos V. Or^on R. & N. Co., 179 Fed. 899, holding power of
Congress over courts extended only to class of cases specified in Constitu-
tion, section 2, of article III ; Levin v. United States, 128 Fed. 828, holding
Congress may empower State courts to naturalize qualified aliens; Robert-
son V. Baldwin, 165 U. S. 278, 41 L. Ed, 716, 17 Sup. Ct. 327, holding Con-
gress may authorize State courts to commit offenders against Federal laws,
to naturalize aliens.
Powers of State legislatures and courts as to naturalization. Note,
30 L. B. A. 761.
Administration of Federal laws in State Courts. Note, 48 L. B. A.
84, 35, 86, 87, 891
Jurisdiction of courts-martial under act of 1814 is concurrent witb thoae
of States, and sentence by either court might be pleaded in bar to prosecution
in other.
Approved in Jackman v. Eau Claire Nat. Bank, 125 Wis. 481, 104 N. W.
103, State court has jurisdiction of action by trustee to recover value of
property transferred as preference ; Ex parte Houghton, 7 Fed. 663, 664, 8
Fed. 902, holding writ of habeas corpus from Federal court is proper
remedy where one is restrained by State court for offense punishable only
by Federal courts; Campbell v. United States, 4 Fed. Cas. 1204, holding
power to punish counterfeiting is concurrent; United States v. Given, 25
Fed. Cas. 1331, holding Congress has power to provide for punishment of a
State official violating law as to qualifying colored citizens to vote; United
States V. Wells, 28 Fed. Cas. 523, holding, in cases of concurrent jurisdic-
tion, one first getting control will exercise jurisdiction until judgment;
Harlan v. The People, 1 Doug. (Mich.) 213, holding State may provide for
punishment of counterfeiting; Manley v. People, 7 N. Y. 303, as to whether
State has jurisdiction of criminal offense committed on steamboat ; State v.
Tutt, 2 BaiL 46, 47, 21 Am. Dec. 510, 512, holding counterfeiting national
bank, notes indictable under State act ; Jett v. Commonwealth, 18 Gratt.
939, holding State may punish one attempting to utter forged national
bank note.
Jurisdiction over sea. Note, 46 L. B. A. 274.
A requisition by the President on a State aoTemor for militia is in legal
intendment an order.
Cited in Martin v. Mott, 12 Wheat. 33, 6 L. Ed. 541, holding disobedience
to such order subjects citizen to court-martial.
Calling out militia. Note, 15 L. R. A. 116.
Where power of Congress is not made exclusive, States may legislate in
absence of legislation by Congress..
Approved in Keller v. United States, 213 U. S. 145, 58 L, Ed. 739, 29 Sup.
Ct. 470, holding jurisdiction of United States extends only to importation
1017 HOUSTON V. MOORE. 5 Wheat. 1-76
of aliens for immoral purposes ; Missouri Pacific Ry. Co. v. Larabee Flour
Mills Co., 211 U. S. 621, 58 L. Ed. 860, 29 Sup. Ct. 214, and Morris v. United
States, 229 Fed. 520, both holding Congress, has reserved to itself a police
power under Interstate Commerce Act ; United States v. Severino, 125 Fed.
954, holding State and Federal courts have concurrent jurisdiction over
naturalization matters; Puritan Coal Mining Co. v. Pennsylvania R. Co.,
237 Pa. 447, Ann. Cas. 1914B, 87, 85 Atl. 435, holding State may legislate
jehere Interstate Commerce Act is silent; Ifew York v. Miln, 11 Pet. 150,
9 L. Ed. 667, holding State law forcing captain to report number of pas-
sengers from foreign port, constitutional; Holmes v. Jennison, 14 Pet. 578,
692, 593, 10 L. £d.'598, 605, court dividing as to whether the Governor could
surrender fugitive. Federal government not having provided for it; Prigg
V. Pennsylvania, 16 Pet. 618, 654, 10 L. Ed. 1090, 1103, holding Congress hav-
ing provided for delivery of fugitive slave, State law relating thereto is void ;
dissenting opinion in Cook v. Moffat, 5 How. 313, 12 L. Ed. 168, majority
holding contract made in New York unaffected by debtor*s discharge under
insolvent laws of his State, though passed previous to contract; License
Cases, 5 How. 584, 607, 625, 12 L. Ed. 292, 308, 811, holding valid a State
law forbidding sale of liquor without license ; Passenger Cases, 7 How. 394,
498, 565, 556, 12 L. Ed, 748, 792, 816, holding void a statute of New York
taxing aliens arriving there; Cooley v. Board of Wardens of Philadelphia,
12 How. 319, 13 L. Ed. 1005, holding State may regulate pilot fees ; Oilman
v. Philadelphia, 3 Wall. 730, 18 L. Ed. 101, refusing to enjoin State from
building bridge across navigable river, wholly within the State; Claflin v.
Houseman, 93 U. S. 141, 23 L. Ed. 840, holding under bankrupt act, assignee
may sue in State courts to recover assets; McPherson v. Blacker, 146 U. S."
41, 36 L. Ed. 879, 13 Sup. Ct. 13, holding where State law fixed date for
meeting of electors different from that set by Congress, the date may
be rejected and law stand; United States v. Rhodes, 1 Abb. (U. S.) 45,
Fed. Cas. 16,151, holding "civil rights" bill constitutional; The Wave,
Blatchf. & H. 251, Fed. Cas. 17,297, admiralty has jurisdiction of salvage
claims on tide waters within a State; Day v. Buffinton, 3 Cliff. 386, Fed.
Cas. 3675, United States has no power to levy income tax on judge's
salary; Sherman v. Bingham, 3 Cliff. 560, Fed. Cas. 12,762, holding assignee
of one declared bankrupt may maintain action to recover money wrongfully
paid defendants in another district, in that District Court; The Barque
Chusan, 2 Story, 466, Fed. Cas. 2717, statute of State, giving lien to ma-
terialmen, is void, so far as applicable to foreign vessels; United States v.
The New Bedford Bridge, 1 Wood. & M. 426, 430, 432, 439, Fed. Cas.
15,867, denying Federal cognizance of the offense of obstructing navigation
of river; Ex parte Geislcr, 4 Woods, 383, 50 Fed. 412, Congress having
given State courts right to punish passing of counterfeit coin; Ex parte
Houghton, 7 Fed. 658, 8 Fed. 898, holding State court has no jurisdiction
over offense of passing counterfeit national bank bills; In re Brinkman, 7
N. B. R. 425, 4 Fed. Cas. 146, holding in certain cases, providing there is no
objection, mortgages upon bankrupt's estate may be foreclosed in State
courts; Perry v. Langley, 19 Fed. Cas. 284, 1 N. B. R. 559 (157), holding
6 Wheat. 1-76 NOTES ON U. S. REPORTS. 1018
bankrupt act supersedes insolvent laws of State; In re Reynolds, 20 Fed.
Cas. 596, holding State court can issue writ of habeas corpus to inquire into
detention of a deserter, by military authorities; Yeadon v. Bank, 30 Fed.
Cas. 796, holding State has concurrent jurisdiction in bankruptcy suits,
act not making it exclusive; Mabry v. Herndon, 8 Ala. 861, holding State
court may inquire into validity of a discharge in bankruptcy; Dorman v.
State, 34 Ala. 249, 250, declaring prohibitory liquor law constitutional;
Ex parte Hill, 38 Ala. 450, holding Congress having given to surgeons right
to pass on unsoundness of soldier. State court cannot inquire into the ques-
tion; dissenting opinion in Ex parte Hill (In re Armistcad), 38 Ala. 479,
majority holding State court canno^ revise action of commandant in vacat-
ing a discharge; dissenting opinion in The State ex rel Dawson; In re
Strawbridge, 39 Ala. 400, majority holding State has right to military
service of those exempted as bonded agriculturists from service of Con-
federate States ; Rison v. Farr, 24 Ark. 168, 87 Am. Dec. 56, holding act
prescribing oath to purge one of crime as a prerequisite for voting repug-
nant to Federal Constitution; Rison v. Powell, 28 Ark. 435, holding State
court has concurrent jurisdiction to set aside fraudulent conveyance, prior
to bankruptcy; People v. Naglee, 1 Cal. 235, 241, 52 Am. Dec. 315, 320,
holding State law prohibiting foreign miners in gold mines, except on pay-
ing a license, constitutional ; Webb v. Dunn, 18 Fla. 724, holding unconstitu-
tional State law providing for imposition of fees on vessel entering port
and making fast to wharf; Rodney v. 111. C. R. Co., 19 111. 45, holding State
courts having jurisdiction will enforce Federal law as to fugitive slave,
coming incidentally in question; Dunne v. People, 94 111. 127, 129, 130, 133,
34 Am. Bep. 217, 219, 223, holding State has right to provide for organiza-
tion of militia ; Cobb v. Stallings, 34 Ga. 77, holding assessors and collectors
of Confederate tax not liable to call for militia service by Governor; Free-
man V. Robinson, 7 Ind. 323, holding State laws in conflict with Federal,
mvLsif yield ; The Steamboat Tweed v. Richards, 9 Ind. 528, holding statute
of State for enforcement of liens on boats, does not extend to liens arising
under contracts made and broken in other States; State v. Garten, 32 Ind.
7, 2 Am. Eep. 319, heading Congress cannot tax bonds given to State by its
officers ; Helm v. National Bank, 43 Ind. 169, 13 Am. Rep. 397, statute pro-
viding that in promissory note "given for patent," these words must appear,
is unconstitutional ; Denney v. State, 144 Ind. 509, 31 L. R. A. 729, 42 N. E.
931, apportionment law unconstitutional; dissenting opinion in Council
Bluffs V. Railroad Co., 45 Iowa, 358, majority holding State cannot impose
any burden upon transportation between points in different States; dis-
senting opinion in Price v. Poynter, 1 Bush (Ky.), 396, majority holding
capture of horses for public use of Confederate army excusable; Ferguson
V. Landram, 1 Bush (Ky.), 580, holding citizens of a State cannot be taxed
by local and Federal legislation for same nationl purpose; State v. In-
toxicating Liquors, 78 Me. 404, 6 Atl. 5, holding liquors intended to be sold
at soldiers* home not liable to seizure ; Commonwealth v. Tracy, 5 Met. 547,
holding State law for apprehension of fugitives from other States valid;
Commonwealth v. Fuller, 8 Met. 318, 319, 41 Am, Dec. 513, 514, holding
1019 * HOUSTON V. MOORE. ^ 6 Wheat. 1-76
State courts may punish one having counterfeit money; Harlan v. People,
1 Doug. (Mich.) 21 Oy holding State can provide for punishment of counter-
feiters; Robinson v. More^ 3 Mich. 242, 245, 246, holding unconstitutional
a State statute, providing a chattel mprtgage is void, unless filed in clerk's
office of mortgagor's town, 30 far as it relates to enrolled vessel ; People v.
Fonda, 62 Mich. 407, 29 N. W. 28, holding State courts have no jurisdiction
to try clerk of national bank for embezzling its funds; Simmons v. Miller,
40 Miss. 25, holding war power of Congress is exclusive; Crow v. State, 14
Mo. 306, holding statute taxing merchants is discriminating and void;
also dissenting opinion, 326; Ex parte Crandall, 1 Nev. 306, holding State
law taxing passengers carried out of State by stage valid; State v. Pike,
15 N. H. 88, 89, holding State courts have no jurisdiction of perjury before
commissioner appointed under bankrupt act; Robinson v. Potter, 43 N. H.
190, holding party having agreed to submit cause to arbitrators cannot
afterward ask to have it transferred to Circuit Court; Bruen v. Ogden, 11
N. J. L. 379, holding State court may maintain action to replevy goods
seized by marshal of United States; Jack v. Mary Martin, 12 Wend. 317,
holding after congressional legislation as to fugitive slaves. State legisla-
tion is of no effect ; Delafield v. Illinois, 26 Wend. 210, 211, 214, 216, hold-
ing in all controversies between State and citizen of another State, jurisdic-
tion is possessed by State and Federal courts ; Lemmon v. People, 20 N. Y.
614, holding statute freeing slave brought into State by voluntary act of
master valid; City of Utica v. Churchill, 33 N. Y. 241, holding void an act
taxing national bank shares, which did not provide that rate should not
exceed that on shares of State banks; People v. Curtis, 50 N. Y. 328, 10
Am. Bep. 488, holding State statute providing for surrender of fugitives
from foreign justice is void ; Robinson v. National Bank, 81 N. Y. 387, 391,
87 Am. Rep. 510, 613, holding State court has cognizance of action on con-
tract by citizen of this State against national bank located in another
State ; People v. Hill, 126 N. Y. 504, 27 N. E. 790, holding State legislation
not excluded, un]^ss power of Congress as to militia has been exercised ; Peo-
ple v. Welch, 141 N. Y. 276, 278, 38 Am. St Rep. 800, 802, 24 L. B. A. 121,
122, 36 N. E. 331, 332, State may exercise jurisdiction of crimes committed
upon navigable waters within State; Weaver v. Fegely, 29 Pa. St. 29,
70 Am. Dec. 153, holding State may regulate i;^eights until Congress has
done so ; dissenting opinion in McCafilerty v. Guyer, 59 Pa. St. 123, majority
holding act disenfranchising deserters is unconstitutional; Craig v. Kline,
65 Pa. St. 409, 3 Am. Rep. 643, holding State may regulate floating of logs
in navigable waters ; Bletz v. National Bank, 87 Pa. St. 92, 93, 30 Am. Rep.
345, 846, holding State courts have jurisdiction where borrower seeks to
recover back twice the amount of illegal interest received by national bank ;
Chase v. The American Steamboat Co., 9 R. I. 431, 11 Am. Rep. 281, holding
State court has jurisdiction of tort on bay; Ausley v. Timmons, 3 McCord
(S. C), 333, holding Congress has not exclusive control over State militia;
State V. Randall, 2 Aikens, 98, holding State act punishing counterfeiting
of national bank bills valid; Ex parte Holmes, 12 Vt. 646, holding "Gov-
ernor has no authority to surrender fugitive from Canada"; Draper v.
6 Wheat. 1-76 NOTES ON U. S. REPORTS. 1020
Gorman, 8 Leigh (Va.), 633, holding State can prescribe its own roles of
evidence; Jett v. Commonwealth, 18 Gratt. 950, 952, 961, holding State
court may punish one attempting to utter forged national bank note; Nor-
folk etc. Ry. Co. v. Commonwealth, 93 Va. 754, 57 Am. St. Rep. 830, 34
L. B. A. 107, 24 S. E. 838, State may prohibit transporting of empty coal
cars on Sunday, not being interstate commerce; dissenting opinion in In
re Booth, 3 Wis. 75, 125, majority holding national fugitive slave law un-
constitutional ; In re Kemp, 16 Wis. 365, holding President has no power to
suspend the writ of habeas corpus, this being a legislative power; In re
Griner, 16 Wis. 439, 440, 441, holding President, under the act of Congress,
could draft our quota of militia; dissenting opinion in Wliiton v. Railway
Co., 25 Wis. 435, majority holding invalid a Federal act providing that a
citizen of one State, who has beg^n action in court of another State against
a citizen thereof, may remove case to Federal court; State v. Cunningham,
81 Wis. 478, 15 L. R. A. 566, 51 N. W. 728, apportionment act violating
constitutional requirements void; Cont. N. Bk. v. Folsom, 78 Ga. 456, 3
S. E. 272, holding nonresident national bank, bringing attachment in a local
court, may be sued in that court on its attachment bond.
Distinguished in Louisville & N. R. Co. v, Hughes, 201 Fed. 743, 747,
holding where Congress has already legislated by Interstate Commerce Act,
State is precluded from further legislation on same subject; Kansas City
Southern Ry. Co. v. Cook, 100 Ark. 474, 140 S. W. 581, holding Interstate
Commerce Act does not allow removal of causes under any consideration;
Commonwealth v. Kitchen, 141 Ky. 657, 133 S. W. 587, holding perjury
before United States commission punishable in Federal courts only; dis-
senting opinion in Allen v. Reed, 10 Okl. 157, 63 Pac. 877, majority holding
void act relating to changes in county seats; Wooley v. Watkins, 2 Idaho,
577, 578, 22 Pac. 110, holding relation between Congress and territories is
that of superior and inferior; State v. McBride, Rice, 413, 418, holding
State court has no jurisdiction over one accused of stealing a letter.
Only militia in actual employment of United States are 8ul>ject to the rales
and articles of war.
Approved in Ex parte Henderson, 11 Fed. Cas. 1076, holding -act pro-
viding that contractor supplying army may be subject to court-martial, is
unconstitutional; Tyler v. Pomeroy, 8 Allen, 493, 498, holding written
promise to serve as a volunteer is not sufficient to constitute one a soldier;
Howes V. Middleborough, 108 Mass. 127, holding guaranty of month's pay
on being called into service, refers to service under the United States ; In re
Spangler, 11 Mich. 321, holding officer (though appointed by Governor),
while making a draft, acts under national authority, and State cannot in-
quire into imprisonment by him; Mills v. Martin, 19 Johns. 24, holding
State militia not subject to martial law, unless in active service; People v.
Campbell, 40 N. Y. 135, 136, holding officer of militia mustered into service,
exempt from civil arrest; Kneedler v. Lane, 45 Pa. St. 281, 336, holding
drafted man punishable as deserter; dissenting opinion in Speer v. School
Directors, 50 Pa. St. 178, majority holding payment of bounties to volun-
teers is legal, being of a public nature; Ex parte Bright, 1 Utah, 155, hold-
1021 UNITED STATES v. WILTBBRGER. 6 Wheat. 70-116
lag militia in actual' service in exclusive control of national government ;
dissenting opinion in Oilman v. Morse, 12 Vt. 558^ majority holding act
for '' regulating and governing State militia, '^ did not disband the militia;
Ex parte Field, 5 Blatchf . 79, Fed. Cas. 4761, arguendo.'
Whether State militia is subject to United States articles of war.
Note, 40 L. B. A. (N. S.) 354.
No nation is bound to enforce penal laws of another within its own
dominions.
Approved in Brown v. United States, 233 Fed. 357, holding conviction of
felony in State court cannot disqualify one as witness in Federal court;
Dickson v. Dickson, 1 Terg. 115, 24 Am. Dec. 447, 448, refusing to enforce
law of Kentucky, making second marriage of offending divorced person
bigamous; Earthman v. Jones, 2 Yerg. 486, holding judgment in another
State, defendant not being served or appearing, no evidence of debt in this
State.
Power to regulate weights and measures. Note, 70 Am. Dec. 154.
Legislation relating to fugitives from ji&tice in extradition. Note,
32 Am. Bep. 355.
Miscellaneew. Cited in Corbit v. Smith, 7 Iowa, 65, 71 Am. Dec. 435;
Kent V. Mojooier, 36 La. Ann. 261 ; Wolfe v. Joubert, 45 La. Ann. 1105,
21 L.,B. A. 744, 13 South. 808; dissenting opinion in Luther v. Borden, 7
How. 60, 77, 12 L. Ed. 607, 614, and Clark v. Sohier, 1 Wood. & M. 373,
Fed. Cas. 2835.
6 Wheat. 76-116, 5 I.. Ed. 37, UNITED STATES t. WILTBEBOEB.
Penal laws are construed strictly, but not so strictly as to defeat legislative
intention.
Approved in Morgan v. Devine, 237 U. S. 641, 59 L. Ed. 1156, 35 Sup. Ct.
712, holding burglarious entry and larceny after entry constitute two sepa-
rate offenses; Butts v. Merchants' etc. Transportation Co., 230 U. S. 134,
57 L. Ed. 1425, 33 Sup. Ct. 964, holding civil rights act did not extend to
vessels on high seas ; United States v. Bitty, 208 U. S. 403, 52 L. Ed. 546,
28 Sup. Ct. 396, holding importation of woman as concubine immoral under
United States statutes; Burton v. United States, 202 U. S. 378, 391^ 50
L. Ed. 1070, 1075, 26 Sup. Ct. 688, agreement to receive and receipt of for-
bidden compensation are separate offenses under Rev. Stats., § 1782 ; Hack-
feld V. United States, 197 U. S. 450, 49 L. Ed. 830, 26 Sup. Ct. 456, ship
owners who have wrongfully brought in aliens into United States and have
received them for deportation, are not insurers of return of immigrants
under 26 Stat. 1084; Northern Securities Co. v. United States, 193 U. S.
358, 359, 48 L. Ed. 709, 24 Sup. Ct. 436, construing and upholding anti-trust
act of July 2, 1890 (26 Stat. 209) ; United States v. Harris, 177 U. S. 310,
44 L. Ed. 782, 20 Sup. Ct. 611, holding railroad receivers under United
States Rev. Stats., §§ 4386-4389, are not liable for penalties; Bolles v. Out-
ing Co., 175 U. S. 561, 44 L. Ed. 157, 20 Sup. Ct. 95, holding under United
5 Wheat. 76-116 NOTES ON U. S. REPORTS. 1022
States Rev. Stats., § 4965, inflicting penalty of one dollar for every sheet
found in defendant's possession, only sheets actually found can he counted;
United States v. Grand Rapids etc. Ry. Co., 224 Fed. 673, 140 C. C. A. 177,
holding railroad offices operating intermittently during day and night are
day and night offices so as to bring employees within hours of service act ;
Louie V. United States, 218 Fed. 40, 134 C. C. A. 68, holding conspiracy, to
import opium and concealment after importation two different criminal
acts; United States v. Eleven Thousand One Hundred & Fifty Pounds of
Butter, 195 Fed. 662, 115 C. C. A. 463, 'to sustain indictment for adultera-
tion, excess of sixteen per cent moisture in butter must have been produced
from outside sources; United States v. McClarty, 191 Fed. 521, holding
president of bank cannot be indicted for innocent but fraudulent act done
by bookkeeper; United States v. First Nat. Bank, 190 Fed. 339, holding
statute making it unlawful for common carrier to make C. O. D. deliveries
of liquor in dry States included banks collecting sight drafts attached to
bill of lading; St. Louis Merchants' Bridge Terminal Ry. Co. v. United
States, 188 Fed. 193, 194, 110 C. C. A. 63, holding statute making it unlaw-
ful to receive cattle for transportation from quarantined district did not in-
clude connecting carrier not operating within quarantined district; Erbaugh
v. United States, 173 Fed. 435, 97 C. G. A. 663, holding statute prohibiting
fraudulent correspondence with another cannot include person opening^
fraudulent correspondence with himself; Union Pac. Ry. -Co. v. Karges,
169 Fed. 462, claim of railroad for right of way good against school lands
not vested in State by enabling act ; United States v. Dillin, 168 Fed. 817,
94 C. C. A. 337, holding warrant of distress issued by treasury department
good against defaulting officer even though not in office; Martin v. United
States, 168 Fed. 202, 93 C. C. A. 484, holding statute prohibiting officers
from removing papers belonging to United States does not include clerks
hired by officers ; United States v. Williams, 159 Fed. 313, holding a person,
though not within statute, may bring himself within it by aiding and abet-
ting principal; United States v. Biggs, 157 Fed. 271, and United States v.
Keitel, 157 Fed. 404, both holding individuals may claim land for corpora-
tion under ''coal land act''; United States v. Ninety-nine Diamonds, 139
Fed. 964, 2 L. B. A. (N. S.) 185, under 26 Stat. 135, use of statement by
one having lien on imported goods that he was owner thereof, to make
entry, is no offense; Field v. United States, 137 Fed. 8, 69 C. C. A. 568,
officer of bahkrupt corporation, who is not and has not been bankrupt, is
not punishable under 30 Stat. 554, for fraudulently concealing property of
bankrupt corporation from trustee; United States v. York, 131 Fed. 328,
construing Rev. Stats., §§ 5424r-5426, relating to aiding or abetting false
citizenship; Johnson v. Southern Pac. Co., 117 Fed, 467, holding under act
of March 2, 1893, it ig not unlawful to allow locomotives engaged in inter-
state commerce to be operated without automatic couplei's; United States
V. Booker, 98 Fed. 293, 294, holding under Rev. Stats., § 5209, president of
national bank cannot be convicted of making false entries when entries were
not made by him ; Railroad Commission v. Alabama Great Southern R. Co.,
185 Ala. 373, 374, L. R. A. 1915D, 98, 64 South. 20, holding railroad com-
mission had power to compel two railroads to join in construction of union
1023 UNITED STATES v. WILTBERGER. 5 Wheat. 76-116
depot; State v. People, 1 Penne. (Del.) 528, 42 Atl. 624, holding under
Rev. Code, Delaware, 1893, p. 414, relating to sale of liquor to minors, it
is not unlawful to sell to an adult who buys for himself and minors ; Wade
V. United States, 33 App. D. C. 32, 20 L. B. A. (N. S.) 347, evidence of keep-
ing a bucket-shop sufficient to sustain prosecution for running gambling
resort ; Plunkett v. Hamilton, 136 Ga. 77, Ann. Gas. 19126, 1259, 35 L. B. A.
(N. S.) 688, 70 S. E. 783, concerning power of police commission to punish
for contempt; In re Huston, 27 Idaho, 243, 147 Pac. 1068, honest mistake
of auditor cannot subject him to criminal liability where he is not custo-
dian of money; State v. Lowry, 166 Ind. 393, 9 Ann. Gas. 350, 4 L. B. A.
(N. S.) 528, 77 N. E. 735, holding statute prohibiting keeping and owning
cigarettes did not prohibit smoking; Kuhn v. Kuhn, 125 Iowa, 452, 101
N. W. 162, under Codes, § 33^6, widow who murdered husband not deprived
of distributive share of his estate under Code, § 3366, as matter of con-
tract; State V. Prather, 79 Kan. 515, 131 Am. St. Bep. 339, 21 L. B. A.
(N. S.) 23, 100 Pac. 57, statute prohibiting card-playing and cock-fighting
did not prohibit baseball games ; State v. Rhodes, 77 Kan. 207, 93 Pac. 612,
holding where legal title is not passed, mortgage cannot be considered con-
veyance; Commonwealth v. Trent, 117 Ky. 45, 77 S. W. 393, construing
Ky. Stats., §§ 3910-3914, regulating waste of gas and enjoining plugging of
wells not in use; State v. Palanque, 133 La. 41, 62 South. 226, holding
where statute inadvertently fails to demand returns from election commis-
sioners on amendments to Constitution, no penalty is allowed ; State v. Bref-
feihl, 130 La. 910, 911, 40 L. B. A. (N. S.) 540, 58 South. 765, construing
election law of Louisiana passed to aid illiterate voters ; State v. Couvillion,
117 La. 936, 42 South. 431, holding incest being creature of statute, express
legislative enactment is necessary to include new class of persons; State
v. Foutenot, 112 La. 642, 36 South. 635, indictment for burning merry-go-
round does not allege crime under Rev. Stats., § 847, unless it alleges outfit
formed part of stock of goods or was being held as article of trade; State
V. Woodward, 182 Mo. 407, 103 Am. St. Bep. 646, 81 S. W. 862, under R6v.
Stats. 1899, § 2043, relating to jury-bribing, evidence showing proposal of
willingness to give bribe to bias juror's verdict is sufficient; Powell v. Sher-
wood, 162 Mo. 616, 63 S. W. 487, holding Laws 1897, p. 96 (Mo.), defining
liabilities of railroad corporations for damages, applies to receivers of rail-
roads ; State v. Davidson, 172 Mo. App. 364, 157 S. W. 892, holding statute
prohibiting indirect attempts at bribery covers one who aids in attempt;
Ex parte Smith (Eureka County Bank Habeas Corpus Cases), 35 Nev. 103,
126 Pac. 661, holding not a criminal act on part of teller receiving money
in insolvent bank where he is ignorant of the insolvency; Ex parte Smith,
33 Nev. 483, 111 Pac. 936, holding being president of bank does not con-
clude authority to close doors when insolvent; Ex parte Prosole, 32 Nev.
381, 108 Pac. 632, holding two sections of penal laws may be read together
so as to provide penalty ; James v. State, 4 Okl. Cr. 590, 140 Am. St. Bep,
693, 84 L. B. A. (N. S.) 515, 112 Pac. 945, holding taking-bets on races not
conducting horseracing so as to come within statute; State v. Huxford, 35
R. I. 394, Ann. Gas. 1915G, 1135, 87 Atl. 174, dealing with the use of mufflers
on motor boats; Commonwealth v. Barrow, 118 Va. 260, 87 S. E. 577, hold-
5 Wheat. 76-116 NOTES ON U. S. REPORTS. 1024
ing where school trustee is prohibited from having interest in building con-
tract, limitation for suit begins when interest is acquired; Gayle v. Com-
monwealth, 115 Va. 961, 80 S. E. 742, holding assistant chemist cannot act
where statute calls for State chemist; Sutherland v. Commonwealth, 109
Va. 835, 836, 132 Am. St. B^p. 949, 23 L. R. A. (N. S.) 172, 65 S. E. 16,
holding pistols carried in saddle-bags not concealed weapons about person ;
Jennings v. Commonwealth, 109 Va. 823, 132 Am. St. Rep. 946, 17 Ann. Gas.
64, 21 L. R. A. (N.,S.) 265, 63 S. E. 1080, holding divorced woman not
unmarried female so as to allow action for seduction; Gates etc. Co. v.
Richmond, 103 Va. 704, 49 S. E. 965, one occasionally placing skid to movo
goods from store to delivery wagon does not violate ordinance against pro-
jections into street; Brown v. State, 137 Wis. 548, 119 N. W. 340, holding*
where there was no registrar, physician could not be convicted for failure to
register; Miller v. Chicago & N. W. Ry. Co., 133 Wis. 191, 195, 113 N. W.
387, 388, holding land bounded by creek not inclosed land within act of
1898, requiring railroad operating over inclosed lands to construct farm
crossings; Perrault v. Minneapolis etc. R. R., 117 Wis. 525, 94 N. W. 349,
holding under Rev. Stats. 1898, § 1810 (Wis.), relating to fencing right of
way, owner of cattle who lets them run when he knows fences are down
cannot recover for killing them; Rasmussen v. Baker, 7 Wyo. 156, 38
L. R. A. 773, 50 Pac. 831, holding under Const. Wyoming, art. VI. § 9, per-
son must be able to read Constitution in English in order to vote ; American
Fur Co. v. United States, 2 Pet. 367, 7 L. Ed. 454, holding all goods of
trader found in company with liquor are subject to forfeiture; United
States V. Morris, 14 Pet. 475, 10 L. Ed. 549, construing statute prohibiting
slave trade; United States v. Hartwell, 6 Wall. 396, 18 L. Ed. 833, holding
clerk appointed by officer of United States, whose tenure is not affected
by vacation of office of superior, is an "officer,'' and subject to penalties
for misconduct; United States v. Reese, 92 U. S. 219, 23 L. Ed. 565, con-
struing act to punish election inspector for refusing vote of colored person ;
note to In re Coy, 127 U. S. 739, see 31 Fed. 800, case involving construc-
tion of act as to elections ; United States v. Lacher, 134 U. S. 628, 33 L. Ed.
1083, 10 Sup. Ct. 626, construing statute against embezzlement; United
States V. Chase, 135 U. S. 261, 34 L. Ed. 120, 10 Sup. Ct. 758, holding a
sealed and addressed letter is not a "writing"* within statute prohibiting
mailing of obscene matter; dissenting opinion in United states v. Rodgers,
150 U. S. 278, 279, 37 L. Ed. 1082, 14 Sup. Ct. 120, 121, construing statute
giving Federal courts jurisdiction of crimes on high seas; Sarlls v. United
States, 152 U. S. 575, 38 L. Ed. 558, 14 Sup. Ct. 722, holding lager beer is not
"spirituous liquor" nor "wine" within statute forbidding sale to Indians;
United States v. Souders, 2 Abb. (U. S.) 461, Fed. Cas. 16,358, construing
act punishing anyone preventing electors from voting; United States v.
Sweeney, 1 Biss. 312, Fed. Cas. 16,426, construing revenue laws, forbidding
vessel to unlade spirits, without giving collector a manifest of said cargo;
In re Leszynsky,-16 Blatchf. 19, Fed. Cas. 8279, holding penalty, fine and
imprisonment are one punishment; United States v. Clayton, 2 Dill. 226,
228, Fed. Cas. 14,814, holding Governor is not "an officer of election/' within
1025 ifklTED STATES v. WILTBERGER. 5 Wheat. 76-116
criminal statute; In re Baell, 3 Dill. 123, Fed. Cas. 2102, construing statute
against libel; United States v. Whittier, 5 Dill. 39, Fed. Cas. 16,688, hold-
ing statute in respect to mailing obscene books, etc., does not extend to
sealed letter sent in answer to decoy letter; United States v. Reese, 5 Dill.
413, Fed. Cas. 16,137, holding it is no crime against United States to cut
timber on Indian lands; Wilson v. Singer Mfg. Co., 9 Biss. 175, Fed. Cas.
17,836, construing act as to marking articles with word "patented" ; United
States V. Mattock, 2 Sawy. 151, Fed. Cas. 15,744, construing "cattle" in
penal statute to include sheep; United States v. Williams, 3 Fed. 491, hold-
ing statute against mailing of obscene matter did not extend to sealed
letter; French v. Foley, 11 Fed. 804, construing statute providing penalty
for false markings; Pentlarge v. Kirby, 19 Fed. 504, construing statute
imposing penalty for falsely marking upon articles the word "patented";
United States v. Comerford, 25 Fed. 904, holding depositing sealed letter in
postoffice, not within statute against mailing of obscene matter; United
States V. Huggett, 40 Fed. 638, applying this rule in construing statute pro-
hibiting obscene language in mails ; United States v. Garretson, 42 Fed. 25,
holding doubt in criminal statute is to be decided in favor of accused ; In re
McDonough, 49 Fed. 362, holding beer is not a spirituous liquor within stat-
ute forbidding selling of spirituous liquors to Indians; contra. United
^ates V. Ellis, 51 Fed. 810; United States v. Wilson, 58 Fed. 771, holding
statute against the mailing of obscene matter does not include a scaled let-
ter; Detroit Citizens' St. Ry. v. Detroit, 64 Fed. 640, 22 U. S. App. 570,
26 L. B. A. 676, x>owers of municipal corporation will not be so strictly
construed as to djefeat legislative intent; United States v. Harris, 78 Fed.
291, holding penal statute relating to transportation of livestock does
not apply to receivers of a railroad; United States v. Hewecker, 79 Fed.
64, where statute could not constitute murder, except by inserting provision
that death occur within a year and a day, court refused to impose this
limitation; Ex parte Poulson, 19 Fed. Cas. 1208, construing strictly a stat-
ute giving court power to punish' for contempt; United States v. Hall,
26 Fed. Cas. 78, holding, if a person be openly engaged in carrying private
letters over post-roads of United States, railroad having notice, carrying
such, is liable for the penalty; United States v. Pratt, 27 Fed. Cas. 613,
holding mailing of obscene postal card within statute; Boring v. Will-
iams, 17 Ala. 518, holding summary proceeding against collector for failing
to collect taxes could be against any one or more of his sureties; disseiitinj>-
opinion in Crosby v. Hawthorn, 25 Ala. 225, majority holding affidavit of
belief sufficient to justify a warrant; Walton v. State, 62 Ala. 199, con-
struing statute prohibiting sale of liquors to minors; Merriam v. Langdon,
10 Conn. 469, construing statute for suppression of peddlers; Rawson v.
State, 19 Conn. 299, construing indictment charging one with keeping
liquor store; United States v. Spaulding, 3 Dak. Ter. 102, 13 N. W. 540,
construing statute as to false pre-emption proof; Hall v. State, 3 Ga. 21,
holding keeping open of one tippling-house, a violation of the statute;
Holland v. State, 34 Ga. 457, holding distilling of whisky from seed of
millet, included in terms "other grain"; Bethune v. State, 48 Ga. 511, hold-
1—65
6 Wheat. 76-116 NOTES ON U. S. REPORTS. ^ 102S
i
ing entering of place of business of another, where goods are stored, bur-
glary ; Steel v. State, 26 Ind. 83, holding, in prosecution for seduction, juiy
could not impose a fine in addition to imprisonment; Keller v. State, 11
Md. 536, 69 Am. Dec. 232, construing license laws; Parkinson v. State,
14 Md. 195, 204, 74 Am. Dec. 529, construing act prohibiting sale of liquors
to minor or colored persons ; People v. Braman, 30 Mich. 467, court dividing-
on construction of act punishing threats to accuse another of crime to ex-
tort money; State v. Brewer, 8 Mo. 374, holding disclosures by grand juror
not an offense within statute; Schultz v. Pacific R. R. Co., 36 Mo. 27,
holding representatives of servant may maintain action against master for
death occasioned by negligence, etc., of fellow-servant; State v. Bryant,
90 Mo. 537, 2 S. W. 838, construing statute against gambling strictly;
State V. Sibley, 131 Mo. 525, 33 S. W. 169, holding act of stepfather is
within statute punishing guardian or other person in charge for defiling'
female under his care; State v. Schuchmann, 133 Mo. 124, 133, 33 S. W.
38, 41, construing statute punishing burglary strictly; Moore v. State, 63
Neb. 847, 74 N. W. 324, holding section of criminal code relating to the
embezzlement of public moneys applies only to officers charged by law with
the collection, etc., not to an auditor ; State v. Hayes, 13 Mont. 120, 32 Pac.
416, construing strictly statute against larceny; Ex parte Deidesheinier,
14 Nev. 317, holding superintendent not guilty of misdemeanor for refusin*^
to permit stockholders to examine mine; State v. Butman, 61 N. H. 615,
60 Am. Rep. 332, holding partner cannot be convicted for embezzling firm
property ; dissenting opinion in Camden etc. R. R. Co. v. Briggs, 22 N. J*. L.
675, majority holding statute inflicting penalties for exceeding charter
rates, constitutional; Buck v. Danzenbacker, 37 N. J. L. 361, holding under
game laws forfeitures can be recovered only by actions of trespass;
Strieker v. Railroad Co., 60 N. J. L. 235, 37 Atl. 778, construing statute
providing for punishment of person traveling without paying fare ; Cotheal
V. Brouwer, 5 N. Y. 567, holding ofi&cer, refusing to permit stockholder to
inspect books, subject to penalty; Wynehamer v. People, 13 N. Y. 448,
holding Laws 1855, p. 340, to prevent intemperance destroy property iu
liquors already manufactured and is void ; dissenting opinion in Lowenbei?r
V. People, 27 N, Y. 349, majority holding act in relation to capital punish-
ment did not abolish death penalty for murder; American L. Ins. Co. v.
Dobbin, Lalor's Supp. to Hill & D. 260, deciding that "restraining act,"
prohibiting corporations from discounting bills, notes, etc., does not pro-
hibit their purchasing notes; Hines v. Railroad Co:, 95 N. C. 439, 59
Am. Eep. 252, construing act prohibiting freight discrimination; dissenting?
opinion in Boyd v. Watt, 27 Ohio St. 275, majority holding to recover for
habitual intoxication, it is not essential that defendant was sole cause;
State V. Meyers, 56 Ohio St. 350, 47 N. E. 140, refusing to extend criminal
statute to persons not within its terms; State v. Johnson, 16 S. C. 189,
construing act prohibiting carrying of 'concealed weapon; Murray v. State,
21 Tex. App. 633, 57 Am. Bep. 629, 2 S. W. 762, construing statute against
malicious mischief; Harris v. Commonwealth, 81 Va. 243, 59 Am. Bep. 668,
holding skating-rink not required to have license for public exhibition;
Lescallett v. Commonwealth, 89 Va. 884, construing act against betting.
1027 UNITED STATES v. WILTBERGER. 6 Wheal. 70-110
as to betting by telegraph; Hanson v. Eichstaedt, 69 Wis. 547, 35 N. W.
34, construing act giving parties right tomake private notes from public
records ; dissenting opinion in State v. Hunkins, 90 Wis. 270, 63 N. W. 168,
majority holding offense of fraudulently conveying encumbered real estate
may be committed by one procuring another to make the conveyance ; State
V. Shove, 96. Wis. 9, 65 Am. St. Rep. 20, 37 L. R. A. 146, 70 N. W. 314,
certificate of deposit payable at fixed date, a deposit and not a loan ; United
States V. Rhodes, 1 Abb. (U. S.) 37, Fed. Cas. 16,151, and United States v.
Willetts, 5 Ben. 227, Fed. Cas. 16,699, statutes were not penal.
Distinguished in Ex parte Davis, 33 Nev. 316, 110 Pac. 1134, holding
exemption in penal statute must be given liberal construction; Belcy v.
Naphtaly, 73 Fed. 125, 44 U. S. App« 232, construing remedial act liberally ;
Baring v. Erdman, 2 Fed. Cas. 788, construing statute in relation to con-
struction of State roads liberally; Manitowoc County v. Xrunian, 91 Wis.
12, 64 N. W. 310, construing act providing for deposit of county funds in
bank ; State v. Shove, 96 Wis. 9, 66 Am. St. Rep. 20, 70 N. W. 314, holding,
where certificate of deposit is issued payable in a year, not subject 'to
check, it is a deposit within the statute making it an offense for any officer
of a bank to receive money on deposit when he knowa the bank is unsafe ;
Paragon Paper Co. v. State, 19 Ind. App. 324, 49 N. E. 603, holding statute
requiring that in a criminal prosecution against a corporation a copy of
the information or indictment shall be served and returned with the sum-
mons, does not require the service of the affidavit upon which the informa-
tion was based ; Rasmussen v. Baker, 7 Wyo. 155, 38 L. R. A. 784, 50 Bac.
831, holding article preventing one not able to*read the ConstitutionVrom
voting, means the Constitution written in English.
Where there is no ambiguity in the words of statute, there is no room for
construction.
Approved in United States v. Missouri Pac. Ry. Co., 213 Fed. 175, 130
C. C. A. 5, statute allowing railroad employees longer hours of service in
case of accident extends to telegraph operators; Northern Pac. Ry. Co. v.
United States, 213 Fed. 168, 129 C. C. A. 614, holding mistake in report
filed cannot be considered failure to file report so as to sustain penalty;
First Nat. Bank v. United States, 206 Fed. 376, 46 L. R. A. (N. S.) 1143,
124 C. C. A. 256, holding statute prohibiting common carriers and express
companies collecting for liquor on delivery does not include bank collecting
draft in payment of shipment ; Howe v. Parker, 190 Fed. 756, 111 C. C. A.
466y> holding entryman. making valid entry cannot be disqualified because
l«is son settled on land before time where no evidence of collusion; United
States V. Baltimore etc. R. Co., 184 Fed. 95, holding safety appliance act
clear as to hand-holds on engine tenders: United States v. Four Hundred
and Twenty Dollars, 162 Fed. 805, holding 34 Stats, 898, c. 1134 (U. S.
Comp. Stats. Supp. 1907, p. 389), does not prescribe penalty for false
information in manifest; Nelson v. Bank of Fergus County, 157 Fed. ].65,
13 Ann. Cas. 811, 84 C. C. A. 609, holding Montana act of 1903, providing
that where corporations do not make annual report, directors shall be
liable for debts, included foreign corporations; United States v. Colorado
y^
\
5 Wheat. 76-116 NOTES ON U. S. REPORTS. 1028
etc. R. Co., 157 Fed. 331, 332, 13 Ann. Gas. 898, 15 L. R. A. (K. S.) 167,
85 C. C. A. 27, holding railroad doing intrastate business comes within
safety appliance act where it carries goods imported into State ; The Ben R.,
134 Fed. 786, 67 C. C. A. 290, under Comp. Stats. 1901, p. 3029, and Comp.
Stats. 1901, p. 3060, vessels are not subject to seizure and forfeiture for
violations of first act ; United States v. Baltic Mills Co., 124 Fed. 40, hold-
ing advertisement in English newspaper promising employment is within
United States Comp. Stats. 1901, p. 1290; Johnson v. Southern Pac. Co.,
117 Fed. 465, 468, hx)lding act of March 2, 1893 (27 Stat., c.l96, p. 531),
relating to automatic couplers on cars does not include engines; St. Louis
etc. Ry. Co. v. Waldrop, 93 Ark. 45, 123 S. W. 780, civil action arises fr^m
overcharge by railroad even though through mistake ; Wall v. Pf anschmidt,
265 111. 190, L. B. A. 19150, 828, 106 N. E. 788, holding that statute does
not preclude person from inheriting on .account of murder of ancestors ;
Sherrick v. State, 167 Ind. 355, 79 N. E. 196, holding auditor had no au-
thority to collect State taxes, and could not be punished for embezzlement
of same; Austin v. State, 22 Ind. App. 222, 53 N. E. 482, holding Burns*
Rev. Stats. 1894, § 2194 C^nd.), relating to sale or giving away of intoxi-
cants on certain days, does not apply to act of hospitality in private rooms ;
State V. Cavalluzzi, 113 Me. 43, 92 Atl. 938, holding accepted meaning of
prostitution is sexual immorality, and word "woman" is not necessary in
indictment; Ex parte Rickey, 31 Nev. 102, 135 Am. St. Bep. 661, 100 Pac.
141, distinguishing between receiving and assenting to deposits in insolvent
bank j^ State v. Woodruff, 68 N. J. L. 93, 52 Atl. 295, holding under Revision
1898f P. L., p. 237 (N. J.)* relating to elections, a judge of primary could
only be guilty of fraud when election was for State, city, and eounty
officers ; Battle v. City of Rocky Mount, 156 N. C. 334, 72 S. E. 355, holding
word "shall" does not mean "may" in act requiring board of alderman to
elect recorder ; Choctaw etc. R. R. Co. v. Alexander, 7 Okl. 595, 54 Pac. 422,
construing act regulating prairie fires; Ex parte Brown, 21 S. D. 519^ 114
N. W. 305, where attempt was made to indict druggist under pure food
act; dissenting opinion in Chauncey v. Dyke Bros., 119 Fed. 13, 14, major-
ity holding under Acts Ark. 1895, p. 217, § 3, liens of laborers and material-
men were superior to liens of mortgagees on improvements turned over to
mortgagor; dissenting opinion in State v. Weide, 29 S. D. 140, 135 N. W.
708, majority holding equitable estate in land classes person as freeholder;
The Cherokee Tobacco Co., 11 Wall. 620, 20 L. Ed. 229, holding internal
revenue acts include liquors made in Indian territories; Texas v. Chiles,
21 Wall. 491, 22 L. Ed. 661, holding statute providing no witness can be
excluded in civil suit because of interest, puts parties on same footing with
other witnesses; Lewis v. United States, 92 U. S. 621, 23 L. Ed. 514, holding
under bankrupt act, debts of United States have priority over debts of
partners as individuals or as a firm; Calderon v. Atlas Steamship Co., 170
U. S. 280, 42 L. Ed. 1036, 18 Sup. Ct. 591, holding carrier's contract was
an attempt to limit his responsibility, and was void under Harter act;
United States v. Ragsdale, Hempst. 501, Fed. Cas. 16,113, holding that
offender protected by letter of penal statute cannot be deprived of its
benefit; United States v. Chong Sam, 47 Fed. 884, 885, construing word
>
1029 UNITED STATES v. WILTBERGER. 5 Wheat. 76-116
"subject" in Chinese Exclusion Act; Marine v. Packham, 52 Fed. 580, 8
U. S. App. 93, construing tariff act as to duty on glass bottles; Matthews
V. People, 159 111. 405, 42 N. E. 865, holding surety on bond of keeper of
dram-shop need not be a resident but only a freeholder of the county;
Lane v. Ruhl, 103 Mich. 43, 61 N. W. 348, construing act providing where
complainant recovers possession of premises, in case of forcible entry
and detainer, he may recover treble damages.
Treason is a breach of allegiance.
Approved in State v. Wilson, 80 Vt. 253, 67 Atl. 533, holding misprision
can be applied to felonies as well as treason; Young v. United States, 97
U. S. 62, 24 L. £d« 998, distinguishing between giving "aid ai^d comfort"
and treason.
Federal courts can only exercise such criminal Jurisdiction as is specifically
given by Congress.
Approved in Atlantic Transport Co. v. Imbrovek, 234 U. S. 60, 51 L. R. A.
(N. S.) 1157, 58 L. Ed. 1212, 34 Sup. Ct. 733, and Imbrovek v. Hamburg- '^
American Steam Packet Co., 190 Fed. 234, 235, both holding injury re-
ceived by stevedore loading vessel within admiralty jurisdiction; In re
Metzger, 17 Fed. Cas. 234, holding all inferior Federal courts received their
jurisdiction from Congress; United States v. Abbott, 24 Fed. Cas. 744,
holding Federal courts, had power, under statute, to punish for failure to
affix revenue stamps; United States v. MacKenzie, 30 Fed. Cas. 1162, hold-
ing civil courts had not been given jurisdiction over crime of murder com-
mitted on United States man-of-war and triable by court-martial; United
States V. MacKenzie, 26 Fed. Cas. 1120, holding where party charged with
murder on high seas is before court of inquiry, District Court will not issue
a warrant; United States v. New Bedford Bridge, 1 Wood. & M. 448, 483,
484, Fed. Cas. 15,867, holding Circuit Court has no powei^ without author-
ity of Congress, to punish obstructing navigable waters as a crime.
United States courts, under act of 1790, have no Jurisdiction of manslaugh-
ter committed in river within Jurisdiction of foreign sovereign.
Approved in The Underwriter, 119 Fed. 741, discussing admiralty juris-
diction with respect to maritime liens; dissenting opinion in Waring v.
Clarke, 5 How. 481, 12 L. Ed. 246, majority holding United States courts
have jurisdiction in case of tort on river, where tide ebbs and flows, though
it be infra corpus comitatus ; dissenting opinion in Tennessee v. Davis, 100
U. S. 276, 279, 25 L. Ed. 655, 656, majority holding Federal court has
jurisdiction, where United States officer, acting within scope of his author-
ity, is arrested and brought before State court, to remove case; dissenting
opinion in United States v. Rodgers, 150 U. S. 267, 269, 282, 87 L. Ed.
1078, 1088, 14 Sup. Ct. 116, 117, 122, majority holding Federal courts have
jurisdiction of crime committed on vessel owned by citizen of United
States, vessel being on Detroit river within limits of Canada ; United States
v. Wilson, 3 Blatchf. 438, Fed. Cas. 16,731, to give United States courts
jurisdiction of crime, it must have been committed on the "high seas'';
Henry Miller's Case, Brown Adm. 157, Fed. Cas. 9558, holding great lakes
6 Wheat. 116-127 NOTES ON U. S. REPORTS. 1030
are not "high seas*' within act punishing burning of vessels; United States
V. Grush, 5 Mason, 298, Fed. Cas. 15,268, holding words "high seas" mean
unin closed waters of the ocean, and State courts have jurisdiction of
crimes committed on arms of sea within the body of a county; Schooner
Wave V. Hyer, 2 Paine, 143, Fed. Cas. 17,300, holding Congress having
adopted State law as to pilots. District Courts have no jurisdiction; The
Schooner Harriet, 1 Story, 260, Fed. Cas. 6099, holding "at sea" means
without limits of any port; United States v. New Bedford Bridge Co.,
1 Wood. & M. 438, 448, 483, 484, Fed. Cas. 15,867, holding Circuit Court
has no power without authority of Congress to punish as a crime obstruc-
tion of navigation in navigable water ; Ex parte Byers, 32 Fed. 406, holding
Federal covrts have no jurisdiction of assault committed on Americaa
vessel in Detroit river; Commonwealth v. Peters, 12 Met. 395, holding
Federal courts have no jurisdiction of crime committed on merchant vessel
within a State ; People v. Tyler, 7 Mich. 216, 74 Am. Dec. 711, holding crime
committed on American vessel within province of Canada, not punishable
in our courts; Hubbard v. Hubbard, 8 N. Y. 200, holding a nuncupative
will may be made by master, vessel being at anchor in arm of sea where
tide ebbs and flows.
Distinguished in The Wave, Blatchf. & H. 252, Fed. Cas. 17,297, holding
Federal courts have jurisdiction over salvage claims upon waters whete
tide ebbs and flows though within a State, it being a civil case.
Miscellaneous. Cited in Forsyth v. United States, 9 How. 572, IS L. Ed.
262, and State v. Crocker, 5 Wyo. 398, 40 Pac. 684, as an instance of
where criminal case was broi:^ht upon certificate of division; The Wave,
Blatchf. & H. 249, Fed. Cas. 17,297, as having collected authorities on
English admiralty jurisdiction; United States v. New Bedford Bridge,
1 Wood. & M. 438, 458, 463, 466, 472, Fed. Cas. 15>867, citing note as to
admiralty jurisdiction ; United States v. Roberts, 27 Fed. Cas. 824, in state-
ment of case; incidentally referred to in State v. Field, 14 Me. 247, 31
Am. Dec. 53.
5 Wheat. 11^127, 6 L. Ed. 46, McOLUNG v. BOSa
Under laws of Tennessee tax deed to be valid most sliow every fact neceft-
sary to give court Jurisdiction upon the record.
Approved in Commercial Bank of Augusta v. Sandford, 103 Fed. 100,
holding under S. C. Rev. Stats., § 347, providing for sale of property of
delinquent taxpayer, sale of land worth twenty-five dollars, and capable of
division for thirty dollars, is voidable by owner; Early v. Doe, 16 How,
618, 619, 14 L. Ed. 1083, holding sale void, where notice required by statute
was not given; Dunn v. Gaines, 1 Mcljean, 328, Fed. Cas. 4176, holding
one claiming under tax deed must show that all the legal requisites of the
law have been complied with ; Lyon v. Hunt, 11 Ala. 312, 46 Am. Dec. 223,
setting aside sale, where advertisement of sale under statute failed to
describe property; Fitch v. Pinckard, 4 Scam. 79, setting aside sale where
notice was insufficient under statute; State Tax Law Cases, 54 Mich. 447,
in note where cases showing intervention of judiciary in tax proceedings
\
1031 * McCLUNG v. ROSS. 5 Wheat. 116-127
are collected ; Morton v. Reeds, 6 Mo. 73, denying validity of sale in absence
of proof of regularity of assessment ; Tolmie v. Thompson, 3 Cr. C. C. 130,
Fed. Cas. 14,080, arguendo.
Distinguished in Taylor v. Huntington, 34 Wash. 458, 459, 75 Pac. 1105,
judgment of court of general jurisdiction foreclosing tax lien not vacatable
on ground that publication of notice was defective and because it did not
appear that holder of certificate of delinquency had paid accrued taxes;
Werz V. Werz, 11 Mo. App. 35, holding in suit for divorce record need not
show every fact necessary to jurisdiction.
Purchaser of part, havUig agreement to hold balance for vendor, has
adverse possession only of part sold.
Approved in Jones v. Coal Creek Min. etc. Co., 133 Tenn. 186, 180 S. W.
992, where lessee gave evidence of adverse possession; Ross v. Cobb, 9
Yerg. 470, holding possession of part of a tract of land under a lease,
defined by prescribed boundaries, is not possession of whole tract; Brown
V. Johnson, 1 Humph. 264, holding where party takes possession under a
legal title, possession of part extends to boundaries described in deed.
Distinguished in Coal Creek. Mining Co. v. Heck, 15 Lea, 515, holding
part possession under title is possession of whole tract.
Tenant in common may oust cotenant and hold in severalty, but silent
possession, unaccompanied by act of ouster or notice of adverse possession, does
not amount to adverse holding.
Approved in Justice v. Lawson, 46 W. Va. 179, 33 S. E. 107, following
rule; Rich v. Victoria etc. Min. Co., 147 Fed. 386, in ejectment by one
tenant in common against another, instruction that it is sufficient to create
adverse possession, that possession was such that neighbors appreciated that
defendant had possession and claimed exclusive right to whole property, is
proper; Treece v. American Assn., 122 Fed. 602, holding under Statute of
Limitations of Tennessee, tax deed void because tax collector proceeded un-
der repealed law, was sufficient to confer title by adverse possession ; Morris
v. Wheat, 11 App. D. C. 219, holding lease could not be construed to be ad-
verse notice ; Clark v. Beard, 59 W. Va. 673, 53 S. E. 598, where one holding
interest in coal land thereafter conveyed interest; Kirk v. Smith, 9 W^heat.
288, 6 L. Ed. 92, holding possession to give title must be adverse ; Bradstreet
v. Huntington, 5 Pet. 440, 8 L. Ed. 184, holding grantee of one tenant in com-
mon for the whole may set up statute against cotenants ; Clymer v. Dawkins,
3 How. 690, 11 L. Ed. 786, holding tenant in common must show adverse pos-
session by some notorious act ; dissenting opinion in Hewitt v. Story, 64 Fed.
530, 29 U. S. App. 155, 30 L. R. A. 278, case holding water right abandoned
by nonuser; Abercrombie v. Baldwin, 15 Ala. 370, holding possession of
cotenant becomes antagonistic by notorious denial of right of other tenant ;
Ashley v. Rector, 20 Ark. 375, holding cotenants barred where tenant held
land openly and did acts hostile to their rights ; McKneely v. Terry, 61 Ark.
541, 33 S. W. 956, holding taking of rents by cotenant insufficient to show
ouster; Owen v. Morton, 24 Cal. 379, holding it is sufficient if cotenant
in possession appropriates profits with intent to possess the whole ex-
\
5 Wheat. 116-127 NOTES ON U. S. REPORTS. 1032
clusively; Raymond y. Simonson, 4 Blackf. (Ind.) 82, holding statate does
not run in a continuing trust, until trustee denies right of cestui que trust ;
Pattison v. Maloney, 38 La. Ann. 890, holding one may plead title by pre-
scription, though by inquiry he might have discovered that vendor had no
title; Porter v. Hooper, 13 Me. 28, 29 Am. Dec. 481, holding tenant in com-
mon cannot maintain action for mesne profits without an actual ouster by
cotenant; Richardson v. Richardson, 72 Me. 408, holding a tenant in com-
mon may disseize a cotenant; Hudson v. Coe, 79 Me. 94, 1 Am. St. Rep.
294, 8 Atl. 252, holding there must be notorious acts of exclusion by coten-
ant; Van Bibber v. Frazier, 17 Md. 451, holding exclusive possession and
appropriation of profits by cotenant is not adverse possession; Munroe v.
Luke, 1 Met. 471, holding entry of mortgagee under a mortgage made after
plaintiff's attachment, and appropriating all profits, not a disseizin ; Dubois
v. Campau, 28 Mich. 316, 318, court dividing as to whether occupation and
exclusive taking of profits by tenant in common will bar action in eject-
ment ; Lowry v. Tilleny, 31 Minn. 502, 18 N. W. 453, holding possession of
mortgagor after foreclosure sale is not adverse to purchaser; Hoffstetter
V. Blattner, 8 Mo. 282, holding tenant in common may hold adversely to
cotenant; Warfield v. Lindell, 30 Mo. 283, 77 Am. Dec. 616, holding a
notorious assertion of entire ownership is sufficient to oust cotenant; see
also 38 Mo. 585, 90 Am. Dec. 452; Jackson v. Brink, 5 Cow. 484, holding
purchase of cotenant's interest under defective deed from sheriff, consti-
tutes adverse possession ; La Frombois v. Jackson, 8 Cow. 619, 18 Am. Dec.
486, holding possession may become adverse after its commencement by
a subsequent claim of title; Edwards v. Bishop, 4 N. Y. 65,^ holding posses-
sion of cotenant to be adverse must be a total denial of other tenant's
right; Culver v. Rhodes, 87 N. Y. 354, holding that to establish adverse
possession of cotenant notice, in fact, or notorious hostile act is necessary ;
Northrop v. Marquam, 16 Or. 190, 18 Pac. 459, holding to make possession
of cotenant adverse, cotenant out of possession must have notice of such
exclusive claim ; Jefcoat v. Knott, 12 Rich. Eq. 60, where evidence of ouster
of cotenant was insufficient; Marr v. Gilliam, 1 Cold. 500, holding adverse
possession by cotenant must be made clear by positive proof; Burnley v.
Sharp, 16 Tex. 237, holding sale by part owner transferring whole right
in cattle, is an act of ouster ; Emcrick v. Tavener, 9 Gratt. 238, 58 Am. Dec
230, deciding that tenant holding over, must disclaim in order to set statute
running; Caperton v. Gregory, 11 Gratt. 508, holding that coparcener claim-
ing all the property and appropriating the whole of the profits is a dis-
seizor; Lagorio v. Dozier, 91 Va. 508, 22 S. E. 241, where it was held that
exclusive possession, receipt of profits, and payment of taxes does not
amount to ouster of cotenant; Covey v. Porter, 22 W. Va. 124, holding a
parcener exclusively using and taking rents, and notoriously ignoring rights
of coparceners is in adverse possession; Challefoux v. Duchamie, 4 Wis.
565, holding silent possession by tenant in common is not an adverse pos-
session; Bader v. Dyer, 106 Iowa, 722, 77 N. W. 471, holding tenant in
common in sole possession, using it as his own, but making no public claim
of entire ownership, does not hold adversely.
1033 NOTES ON U. S. REPORTS. 5 Wheat. 127-144
The adverse possession of one tenant in common, creation of prescrip-
tive title thereby. Note, 109 Am. St. Rep. 610, 620.
Necessity to running of statute of limitations between them that tenant
in common have notice of adverse claim by botenant. Note, Ann.
Cas. 1918D, 1812.
Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Note, 15 L. B. A. (N. S.) 1195.
Actions in which title to real estate may not be tried or questioned.
Note, 89 Am. Dec. 428.
Abandonment of highway by nonuser, or otherwise than by act of
authorities. Note, 26 L. B. A. 458.
5 l^eat. 127-132, 5 Is. Ed. 50, THE VENX78.
Captor's costs and expenses awarded against claimant, although restitution
s
decreed.
Approved in The Olinde Rodrignes, 174 U. S. 536, 48 L. Ed. 1076, 19
Sup. Ct. 862, holding under Rev. Stats., § 4639, when probable cause for
capture exists costs may be charged though restitution awarded; Boston
Mfg. Co. V. Fiske, 2 Mason, 122, Fed. Cas. 1681, holding jury may give
plaintiff^ in action for infringing patent, counsel fees as damages.
Miscellaneous. Cited to point, that nothing but the clearest proof could
relieve transaction from the presumption of illegality arisii^ from fraudu-
lent papers in United States v. Packages, 27 Fed. Cas. 286; United States
▼. Barrels of Ceitient, 27 Fed. Cas. 297, holding license procured by fraud
will not prevent forfeiture of goods.
5 Wheat. 132-144, 6 L. Ed. 52, THE LONDON PACKET.
Goods being found on an enemy's ship, raises legal presumption that they
are enemy's property.
Approved in The Carlos F. Roses, 177 U. S. 661, 44 L. Ed. 982, 20 Sup. Ct.
806, holding goods shipped by neutral on enemy vessel to enemy port, to
consignee who is owner of vessel, are property of consignee and subject
to capture; United States v. Packages, 27 Fed. Cas. 286, holding willful
omission to stamp distilled liquors, forfeits all the liquors; United States
V. Barrels of Cement, 27 Fed. Cas. 297, holding act done under license pro-
cured by fraud, will not prevent forfeiture of goods.
Bestitntion decreed, but captor's costs and expenses ordered paid by claim-
ants, because of imperfect documents found on board.
Cited in Boston Mfg. Co.* v. Fiske, 2 Mason, 122, Fed. Cas. 1681, holding
jury may give plaintiff, in action for infringing patent, counsel fees as
damages.
Miscellaneous. Cited in Merriman v. Cannovan, 9 Baxt. 96, not in x>oint.
5 Wheat. 144-183 NOTES ON U. S. REPORTS. 1034
5 Wheat. 144>1G|3, 5 L. Ed. 56, XTNITED STATES ▼. EZJNTOOK.
Commission as privateor, issued by one whose office bad no authoritative
existence, -will not Justify captures at sea.
Distinguished in Ford v. Surget, 97 U. S. 617, 24 L. Ed. 1025, holding
orders relieved Confederate officer from liability for destroying cotton;
Dole V. Insurance Co., 2 Cliff. 419, 421, Fed. Cas. 3966, and Fifield v. Insur-
ance Co., 47 Pa. St. 169, 86 Am. Dec. 525, holding capture by a rebel pri-
vateer not a taking by a pirate ; as also in The Schooner Chapman, 4 Sawy.
511, Fed. Cas. 2602.
Under act of 1790, United States courts may punish piracy, though com-
mitted against foreign vessel, by foreigners cruising piratically.
Cited in United States v. Pirates, 5 Wheat. 193, 5 L. Ed. 66, foUowinj?
^ mle ; United States v. Holmes, 5 Wheat. 416, 5 L. Ed. 123, holding Federal
courts have jurisdiction of crime committed on vessel having no national
character; United States v. Demarchi, 5 Blatchf. 85, 87, Fed. Cas. 14,944,
holding indictment for murder, alleging its commission on vessel of citizen
of United States sufficient; United States v. Gibert, 2 Sumn. 89, Fed. Cas.
15,204, holding Federal courts have jurisdiction of crimes aboard American
vessels; United States v. The New Bedford Bridge, 1 Wood. & M. 485,
Fed. Cas. 15,867, holding Federal court has no jurisdiction where corpora-
tion was indicted for obstructing navigation of a river, under authority of
State; The Ambrose Light, 25 Fed. 415, 420, 428, holding establishing of
blockade by unrecognized rebels is piratical; People v. Tyler, 7 Mich. 214,
74 Am. Dec. 709, holding our courts have no jurisdiction of manslaughter,
though blow was struck on American vessel, but party dild in Canada.
Distinguished in United States v. Kessler, Bald. 27-29, Fed. Cas. 15,528,
holding United States courts have no jurisdiction to try defendant indicted
for piracy on board French ship; United States v. Davis, 2 Sumn. 485,
Fed. Cas. 14,932, holding^ our courts have no jurisdiction of crime on foreign
vessel in foreign harbor, shot being fired from our ship.
Jurisdiction over sea. Note, 46 L. B. A. 275.
Miscellaneous. Cited, generally, in State v. Jones, 1 McMuU. 245,
36 Am. Dec. 262.
5 Wheat. 153-183, 6 L. Ed. 67, UNITED STATES ▼. SMITH.
Act of 1819, punishing *'crime of piracy, as defined by the law of nations,'*
is valid and sufficient exercise of power to define and punish piracy.
Approved in Oliver v. United States, 230 Fed. 972, holding meaning of
rape known generally, and Congress need not go into details in defining it
in Cr. Code, §§276, 278; United States v. Patten, 187 Fed. 666, holding
under United States statutes conspiracy needs no overt act to complete
crime; Gooden v. Police Jury, 122 La. 774, 48 South. 203, where tax was
sought to be annulled, became law did not state how long it was to be levied.
Meaning of '* define,'' *' defined'' or '* defining (not definition)."
Note, Ann. Oas. 1914B, 99.
1035 * UNITED STATES v. PIRATES. 5 Wheat. 184-206
Forcible d«predatloii8 or robbery upon sea, animo furaadi, Is piracy by tbe
"law of nations," and by act of Congress.
Cited in United States v. Pirates, 5 Wheat. 193, 5 L. JEd. 66, holding
our courts can punish piracy committed from on board vessel which has
thrown off her national character; Dole v. New England Ins. Co., 2 Cliff.
416, 420, Fed. Cas. 3966, holding taking by rebel privateer not piracy;
United States v. Coppersmith, 4 Fed. 202, 2 Flipp. 551, defining a felony;
The Ambrose Light, 25 Fed. 416, 423, holding that maritime warfare of
unrecognized rebels is piratical; United States v. White, 27 Fed. 201, hold-
ing counterfeiting securities of a foreign nation is an offense against the
"law of nations" ; United States v. Smith, 27 Fed. . Cas. 1135, declaring
United States will treat insurgents plundering our vessels as pirates; Dole
V. Merchants' Mutual Marine Ins. Co., 51 Me. 469, as to what is piracy;
Opinion of the Justices, 66 N. H. 672, 33 Atl. 1099, defining word in statute
in its technical sense.
Miscellaneous. Cited in Forsyth v. United States, 9 How. 572, 18 L. Ed.
268, of an instance where a criminal case was examined in the Supreme
Court upon certificate of division; The United States v. New Bedford
Bridge, 1 Wood. & M. 446, Fed. Cas. 15,867, to support proposition that
common law of England was not put in force by the Constitution ; State v.
Jones, 1 McMull. 245, 36 Am. Dec. 262, not in point ; United States v. New
Bedford Bridge, 1 Wood. & M. 461, Fed. Cas. 15,867, citing note, p. 162, on
definition of piracy by law of nations; United States v. New Bedford
Bridge, 1 Wood. & M. 438, 474, Fed. Cas. 15,867, to point that act of Con-
gress is necessary to give Circuit Courts criminal jurisdiction.
5 Wheat. 184-206, 6 L. Ed. 64, UNITED STATES v. PIBATES.
Piracy committed ftom on board foreign vessel, which has thrown off her
^tional character, is punishable in courts of this country.
Cited in United States v. Holmes, 5 Wheat. 418, 5 L. Ed. 123, holding
Federal courts have jurisdiction of murder coihmitted from on board vessel
baving no national character; Davison v. Sealskins, 2 Paine, 333, Fed. Cas.
3661, holding a pirate is one without any commission from a sovereign
State ; United States v. Gibert, 2 Sumn. 89, Fed. Cas. 15,204, holding Fed-
eral courts have jurisdiction of crimes on board American vessels.
Jurisdiction over sea. Note, 46 L. B. A. 266, 278.
Jurisdiction of offenses committed within territorial limits of govern-
ment. Note, 8 E. B. C. 15.
Bobbery on seas is within criminal jurisdiction of all nations, and plea
of autrefois acquit in foreign court is good in any civilized State.
Cited in Dole v. New England Ins. Co., 2 Cliff. 416, Fed. Cas. 3966,
ai^endo.
Distinguished in United States v. Barnhart, 10 Sawy. 495, 22 Fed. 288,
where crime of which defendant was acquitted in State court was not
same as that for which he was indicted in Federal courts.
6 Wheat. 184-206 NOTES OK U. S. REPORTS. 1036
Conviction of crime against one government as bar to prosecution by
another government for same act. Note, 21 Ann. Oas. 64.
Bight to convict for several offenses growing out of same f adto. Note,
31 L. R. A. (N. S.) 710. '
DocTunentary evidence Is not necessary to inrove national character of
vessel on indictment for piracy.
Approved in United States v. Plumer, 3 Cliff. 64, 65, 68, Fed. Cas. 16,056,
following rule.
In act of 1790, punishing as piracy, certain offenses committed "out of the
jurisdiction of any particular State/' these words mean State of XTnion.
Cited in dissenting opinion in 150 U. S. 267, 276, 87 L. Ed. 1078, 1081,
14 Sup. Ct. 116, 119, majority holding this limitation does not apply to
offenses on high seas; Ex parte Byers, 32 Fed. 405, holding Federal courts
have no jurisdiction of crime committed upon American vessel in Detroit
river; Smith v. United States, 1 Wash. Ter. 269, 274, holding a territory
is not a State.
Vessel lying in an open roadstead of a foreign country, is upon the high
seas within the piracy act of 1790.
Approved in Wynne v. United States, 217 U. S. 243, 54 L. Ed. 760, 30
Sup. Ct. 447, holding murder committed in harbor of Honolulu **out of
jurisdiction of any particular State"; Imbrovek v. Hamburg- American
Steam Packet Co., 190 Fed. 234, holding vessel docked at wharf within
admiralty jurisdiction; United States v. Wilson, 3 Blatchf. 439, Fed. Cas.
16,731, holding ''high seas" is used in contradistinction to landlocked tide
waters; The Schooner Harriet, 1 Story, 260, Fed. Cas. 6099, holding **at
sea" means without the limits of any port; United States v. New Bedford
Bridge, 1 Wood. & M. 484, 485, Fed. Cas. 15,867, discussing admiralty
jurisdiction.
Counts in indictment may be inconsistent one with another; if one bad,
judgment may be on sufllcient count. '
Approved in Sessions v. State, 3 Ga. App. 15, 59 S. E. 197, where indict-
ment contained one good count and one bad, and defendant failed to demur,
conviction could be had on good coun^ People v. Sullivan, 173 N. Y. 129,
93 Am. St. Bep. 585, 65 N. E. 990, holding indictment charging that defend-
ant deliberately killed deceased, and also that he killed him while trying
to commit burglary, were not so inconsistent as to render improper evi-
dence on both counts; Lovejoy v. State, 40 Tex. Cr. 100, 48 S. W. 522,
holding that forgery and uttering forged instrument, though separate
offense, are not inconsistent ; United States v. Peterson, 1 Wood. & M. 318,
320, Fed. Cas. 16,037, if indictment contain two counts, for offenses of
same class, but of different degrees, judgment will not be arrested, though
a verdict of guilty is returned on both ; United States v. Stone, 8 Fed. 251,
252, holding separation in indictment may be disregarded and general
verdict had upon the whole indictment; Philbrook v. Newman, 85 Fed. 141,
applying the rule in disbarment proceedings; as also in United States v.
1037 STEVENSON'S HEIRS v. SULLIVAN. 5 Wheat 207-269
Enapp, 26 Fed. Cas. 793, an indictment for larceny; Scott v. State, 37
Ala. 123, where indictment in separate counts charged murder and man-
slaughter, a general verdict of guilty was held sufficient to authorize death ;
Bulloch V. State, 10 Ga. 60, 64 Am. Dec. 876, where several counts charge
different grades of same offense on general verdict of guilty court will
award judgment for highest offense; Dohme v. State, 68 Ga. 34l\ holding
a general verdict of guilty, without specif3ring counts, sufficient; Kennedy
V. State, 6 Ind. 486, where statute provided on indictment for murder in
first degree, jury might find verdict of guilty in second degree, verdict of
guilty in form and manner charged meant guilty of murder in the first
degree; State v. Shelledy, 8 Iowa, 511, where general verdict is rendered,
it was held if one count was sufficient, judgment would be supported; Com-
monwealth V. Desmarteau, 16 Gray, 14, holding jury need not return a
separate verdict on each count; People v. McDowell, 63 Mich. 232, 30 N. W.
69, holding prosecution need not elect count on which conviction would
be asked; State v. Bean, 21 Mo. 270, holding general verdict upon indict-
ment containing several counts is good ; State v. Lincoln, 49 N. H. 471, hold-
ing, where both counts relate to same transaction, prosecution will not
be put to an election; State v. Snyder, 50 N. H. 158, holding prosecutor
may elect, and conviction will be good; Kane v. People, 8 Wend. 214, hold-
ing, where there is a general verdict of guilty, judgment may be on the
last count; as also in State v. Toole, 106 N. C. 741, 11 S. E. 170, an indict-
ment for nuisance, and Tabler v. State, 34 Ohio St. 137; State v. Pace, 9
Rich. 364, holding on general verdict of guilty judgment will not be arrested
if there be one good count; Dalton v. State, 4 Tex. App. 336, holding, where
both charges are substantially for the same offense, prosecution need not
elect; United States v. Patterson, 6 McLean, 469, Fed. Cas. 16,011, where
both counts were h^d sufficient; Lovejoy v. State, 48 S. W. 622, arguendo.
Distinguished in United States v. Kelsey, 42 Fed. 889, where neither
count was sufficient.
Miscellaneous. Cited to no particular point decided in Commonwealth
V. Macloon, 101 Mass. 22, 100 Am. Dec. 107, and People v. Tyler, 7 Mich.
214, 74 Am. Dec. 709.
5 Wheat. 207-269, 5 L. Ed. 70, STEVENSON'S HEIRS v. SULUVAN.
Statute enabling an Illegitimate to inherit from mother and to transmit
gives him no power to inherit from natural brother.
Approved in Alston v. Alston, 114 Iowa, 33, 86, 86 N. W. 66, holding
statute may provide that illegitimate children already bom and recognized
may be considered heirs; Holmes v. Adams, 110 Me. 169, 85 Atl. 493, refus-
ing to allow illegitimate inheritance from lineal descendant of mother;
Houghton V. Dickinson, 196 Mass. 391, 82 N. E. 481, holding marriage of
parents legitimatized one bom out of wedlock; Moore v. Moore, 169 Mo.
443, 68 L. R. A. 451, 69 S. W. 279, 280, 281, holding under Rev. Stats. 1899,
§2916, bastard may inherit from brother of his mother dying after her;
McCully V. Warrick, 61 N. J. Eq. 610, 46 Atl. 950, holding under section 6,
Orphan's Court act, that if illegitimate person outlives its mother neither
6 Wheat. 207-269 NOTES ON U. S. REPORTS. 1038
his brothers or sisters by such mother nor their issue will take his estate;
Davis V. Milfordy 85 S. C. 507, 67 S. E. 745, holding statute allowing bastard
to inherit from father does not include uncle ; Blair v. Adams, 59 Fed. 244,
248, 249, holding bastard cannot transmit his estate through deceased
mother to her brothers and sisters ; Williams v. Kimball, 35 Fla. 56, 48 Am*
St. Rep. 243, 26 L. R. A. 748, 16 South. 785, statute only makes bastard
legitimate so far as his mother is concerned; Scroggin v. Allan, 2 Dana
(Ky.), 364, 365, holding bastard has no inheritable blood for collateral
purposes ; Jackson v. Jackson, 78 Ky. 391, 39 Am. Rep. 247, holding bastard
cannot inherit through his mother from her ancestors; Groan v. Phelps,
94 Ky. 215, 218, 23 L. R. A. 754, 756, 21 S. W. 874, 875, mother's collateral
kin cannot inherit from bastard; Helms v. Franciscus, 2 Bland Ch. 582,
20 Am. Dec. 421, holding bastard, under statute, can. inherit from mother;
Porter v. Porter, 7 How. (Miss.) 112, 40 Am. Dec. 58, holding ** children"
in statute of descent, does not include bastard; Edwards v. Gaulding, 38
Miss. 165, holding children cannot, under statute, inherit estate of illegiti-
mate uncle; Bent v. St. Vrain, 30 Mo. 271, holding, under statute, bastard
could not transmit to mother or brothers ; Little v. Lake, 8 Ohio, 290, hold-
ing estate of bastard does not pass to the maternal line ; Gibson v. McNeely,
11 Ohio St. 136, holding illegitimate child could not take in will as the
*Mssuc'' of her mother, nor could she inherit collaterally; Moore v. Moore,
35 Vt. 101, holding, where legislature made person another's heir, former
could not inherit from latter 's brother; Kingsley v. Broward, 19 Fla. 746,
showing conflict on this point.
Denied in Butler v. Elyton L. Co., 84 Ala. 391, 392, 4 South. 678, hold-
ing, under statute, estate of bastard goes to his half-brother and not to
his mother; Lewis v. Eutsler, 4 Ohio, St. 355, holding, under statute,
brothers of bastard could take his estate; Briggs v. Greene, 10 R. I. 499,
holding estate of bastard, under statute, passes to sister; Garland v. Har-
rison, 8 Leigh (Va.), 379, 382, holding brothers of bastard can inherit his
estate ; Bennett v. Toler, 15 Gratt. 627, 78 Am. Dec. 644, holding illegitimate
child will take under a devise to children.
Distinguished in Sutton v. Sutton, 87 Ky. 218, 12 Am. St Rep. 477, 8
S. W. 337, holding children of bastard can take from father's illegitimate
brother; Hepburn v. Dundas, 13 Gratt. 224, 225, holding children of slave,
after emancipation, may take as heirs of deceased sister; Dickinson's
Appeal, 42 Conn. 510, 19 Am. Rep. 563, holding bastard has inheritable
blood for collateral purposes.
Disapproved in Heller v. Teale, 216 Fed. 398, holding collateral heirs of
illegitimate can inherit; Berry v. Powell, 101 Tex. 58, 16 Ann. Gas. 986,
104 S. W. 1045, holding illegitimate brothers and sisters can inherit from
one another ; Berry v. Powell, 47 Tex. Civ. 601, 105 S. W. 346, holding sister
of bastard from same mother can inherit his estate.
Succession between illegitimate brothers and sisters. Note, 16 Ann.
Gas. 988.
Right of illegitimate to inherit from or through mother. Note, Ann.
Gas. 1914D, 579.
1039 NOTES ON U. S. REPORTS. 5 Wheat. 269-290
Inheritance by, through, or from illegitimate persons. Note, 23
L. R. A. 763, 754.
tJnder Virginia act of 1785, recognition or proof of paternity to enable
illegitimate cliild to inherit must have occurred after the passage of that act.
Approved in Hartinger v. Ferring, 24 Fed. 17, similarly construing the
Iowa code; Ross v. Ross, 129 Mass. 257, 87 Am. Rep. 332, raising qUery
as to whether legitimacy depending on acknowledgment, should be deter-
mined by law at time of the acknowledgment or at time of the birth.
Distinguished in Townsend v. Meneley, 37 Ind. App. 136, 74 N. E. 274,
statute giving illegitimate children right to inherit in absence of legitimate
heirs can be retrospective so as to include acknowledgment of father made
previous to passage.
Miscellaneous. Cited in.Pettus v. Dawson, 82 Tex. 20, 17 S. W. 714, to
civil rule in note, page 262, which they refused to follow, holding mother
could inherit from bastard; Dodge v. Hopkins, 14 Wis. 639, an error.
5 Wheat. 269-276, 5 L. Ed. 84, PERKINS V. RAMSEY.
Not cited.
5 Wheat. 277-290, 5 L. £d. 87, BiANDEVILIiE y. WELCH. *
I
A bill of exchange expressed to be for value received is evidence of a valu-
able consideration between parties xand as to third persons.
Approved in McAtee v. Shade, 185 Fed. 447, 107 C. C. A. 512, holding
oasliier's indorsement of notes given to bank is presumed to be for good
consideration ; Moses V. Bank, 149 U. S. 302, 37 L. Ed. 745, 13 Sup. St. 901,
holding same, even if not purporting to be **for value received"; Frazer
V. Carpenter, 2 McLean, 236, Fed. Cas. 5069, holding it is evidence between
holder and a remote indorscr; Bristol v. Warner, 19 Conn. 18, holding
negotiable note imports consideration, though not negotiated; Mitchell v.
Cotton, 2 Fla. 151, holding woi:ds **for value received'' import a consid-
eration ; Horn v. Fuller, 6 N. H. 513, holding every promissory note imports
a consideration; Doe v. Bumham, 31 N. H. 430, holding to avoid note, it
should appear that note was given for liquors sold without a license;
Jones V. Holliday, 11 Tex. 415, 62 Am. Dec. 488, stating general rule to be
that consideration of an unsealed contract must be averred and proved, bills
and notes being exceptions; Felt v. Judd, 3 Utah, 416, 4 Pac. 244, holding
in action on non-negotiable paper, consideration must be alleged; McNear
V. Atwood, 17 Me. 436, where the order did not partake of the character
of a bill or note. -.
Check as payment. Note, 54 Am. Rep. 781.
Assignor of chose in action cannot fraudulently Interfere to defeat rights
of assignee In suit brought to enforce those rights.
Approved in Hazelton Tripod-Boiler Co. v. Railway Co., 72 Fed. 328,
holding equity will protect rights of assignees; Dazey v. Mills, 5 Gilm.
70, holding declarations of nominal plaintiff after parting with interest,
inadmissible to defeat action; Taylor v. Galland, 3 G. Greene, 29, holding,
where parties undertake to settle a controversy by assigning conflicting
claims to third party, courts will favor such assignment; Bladkerby v.
/
5 Wheat. 277-290 NOTES ON U. S. REPORTS. 1040
Hoi ton, 5 Dana (Ky.)) 522, holding equity will enforce the assignment of
a chose in action as being a declaration of a trust; Hackett v. Martin, 8
Me. 80, holding no act of assignor after assignment can control it ; Mat-
thews V. Houghton, 10 Me. 421, holding declarations of assignor, subsequent
to assignment, are inadmissible; Pitts v. Holmes, 10 Cush. 96, holding
assignee of chose in action can sue' in assignor's name with his consent;
Scott V. Metcalf, 13 Smedes & M. 569, holding assignor of note stands in
trust relation to assignee, for whom he is to collect the money; Alexander
V. Overton, 36 Neb. 505, 54 N. W. 826, holding where money paid pur-
ported to be plaintiff's, and titles were in her name, she.coidd maintain
action for wrongful sale ; Sloan v. Sommers, 14 N. J. L. 512, 513, 514, hold-
ing court will not permit nominal plaintiff to release action, without con-
sent of real plaintiff; Parsons v. Woodward, 22 N. J. L. 206, holding any
beneficial contract may be assigned, and courts, of law will protect rights
of assignee suing in name of assignor; Davenport v. Elizabeth, 43 N. J. L.
151, holding assignee, being real plaintiff, is liable for costs; Freund v.
Bank, 76 N. Y. 356, holding when a debtor has notice of assignment of ^
chose in action he cannot make valid payment to assignor; Strong v. Strong,
2 Aikens, 378, holding equitable interest of assignee is protected at law
against a fraudulent discharge by nominal plaintiff; Price v. Bradford, 5
Ga. 366, arguendo.
Distinguished in In re Stiger,. 202 Fed. 794, holding instrument assigning
accounts receivable must make original debtors liable to assignee; Johnson
V. Shields, 32 Me. 428, holding widow's release of unassigned right of
dower, except to party in possession, is of no effect; Crawford v. Brooke,
4 Gill, 221, holding acts of assignor at time of assignment competent
evidence.
To constitute an equitable mortgage not only a deposit of title papers,
but an intent to give security must be shown. *
Approved in Jennings v. Augir, 215 Fed. 660, holding redelivery of
unrecorded deed to grantor with intent to secure him for taxes advanced
constituted equitable mortgage; dissenting opinion in Bloomfield State Bank
V. Miller, 55 Neb. 253, 70 Am. St. Rep. 388, 44 L. R. A. 387, 75 N. W. 572,
majority holding depositing title deeds does not create mortgage ; Wellborn
V. Williams, 9 Ga. 92, 52 Am. Dec. 482, distinguishing vendor's lien from
an equitable mortgage; Rogers v. Hosack, 18 Wend. 334, holding covenant
to pay certain debts out of a designated fund, when obtained, is not an
equitable mortgage; United States v. Cutts, 1 Sumn. 141, 142, Fed. Gas.
14,912, but decisions put upon other grounds.
Disapproved in Grames v. Consolidated Timber Co., 215 Fed. 788, holding
deposit of certificate of title to lands was without statute of frauds and
not equitable mortgage.
Equitable mortgage, what constitutes. Note, 4 Am. St. Rep. 697.
Equitable mortgage by deposit of title deeds. Note, 19 L. R. A.
(N. S.) 207,
Deposit of title deeds as an equitable mortgage. Note, 18 £. R. 0. 28.
Order for part of fond is not assignment unless drawee consents by accept-
ance of draft, or obligation to accept be Implied ftom custom.
1041 MANDEVILLE v. WELCH. 6 Wheat. 277-290
Approved in Andrews v. Frierson, IM Ala. 628, 33 South. 6, holding
order drawn in favor ef third person for portion of deht, is not an assign-
ment of the fund until accepted by debtor; Reviere v, Chambliss, 120 Ga.
716, 48 S. E. 123, unaccepted check is not assignment of money to credit
of drawer; Rivers v. Wright etc. Co., 117 Ga. 84, 43 S. E. 500, holding
partial assignment of debt will not give assignee right to enforce it with-
out consent of assignee ; Skobis v. Ferge, 102 Wis. 132, 78 N. W. 429, hold-
ing assignment by creditor of portion of claim is not binding on debtor
unless he consents; McLoon v. Linquist, 2 Ben. 13, Fed. Cas. 8899, holding
same as to advances made on bill of lading; McGinnis v. Flynn, 23 Blatchf.
469, 27 Fed. 35, holding check is not an equitable assignment; Strain v.
Goi^din, 2 Woods, 383, Fed. Cas. 13,521, to same effect; Bosworth v. Nat.
Bank, 64 Fed. 618, 24 U. S. App. 413, holding drawing of drafts without
their acceptance does not amount to an equitable assignment; Fluker v.
Henry, 27 Ala. 402, 403, holding bill of exchange, until accepted, does not
operate as an assignment; Welch v^ Mayer, 4 Colo. App. 444, 36 Pac. 614,
holding assignment of part of a debt is not operative, unless debtor con-
sents; Weinstock v. Bellwood, 12 Bush (Ky.), 141, holding the assignment
of part of a debt does not vest assignee with right of action against
debtor; Russell v. Ferguson, 7 Mart. (La.) (N. S.) 520, holding a party
is not obliged to itccept several drafts for one debt ; Poydras v. Bel^imare,
13 La. 101, holding agent having funds of principal in his hands, is not
individually bound to payee for refusing to pay ; Jackson v. Tieman, 15 La.
491, enforcing assignment of part of a debt where obligation resulting
from it may be implied from the custom of trade; dissenting opinion in
Keith v. Mackey, 5 Rob. (La.) 284, majority holding if drawer, after
holder's neglect to present, withdraws funds, he, under code, will be respon-
sible to holder; Getchell v. Maney, 69 Me. 444, holding statute did not
authorize assignment of part of one's wages; Gibson v. Finley, 4 Md. Ch.
78, holding unaccepted draft not an equitable assignment; Wilson v. Carson,
12 Md. 74, declaring there was not an equitable assignment; as also Gibson
V. Cooke, 20 Pick. 18, 32 Am. Dec. 196 ; Palmer v. Merrill, 6 Cush. 287, 52
Am. Dec. 785, holding assignment of insurance policy pro tanto, policy
being retained by assured, is not effectual though notice is given to insur-
ers; Lyon V. Travelers' Ins. Co., 55 Mich. 146, 54 Am. Rep. 857, 20 N. W.
831, holding arrangement by which employer was to pay premiums to insur-
ance company from employee's wages, amounted to an assignment; Wad-
iington V. Covert, 51 Miss. 636, holding order on third person is not abso-
lute discharge of an antecedent debt, unless accepted as such; Menken
V. Gumbel, 57 Miss. 758, holding acceptance of an order to pay sum out
of balance due, takes precedence of a garnishment; Burnett v. Crandall,
63 Mo. 413, holding assignee of part of a claim assigned without debtor's
lionsent cannot recover on it; McGrade v. Savings Institution, 4 Mo. App.
338, holding that holder of check because of usage may sue bank for
refusing payment; Rice v. Dudley, 34 Mo. App. 392, holding garnishment
will prevail over prior unaccepted order for part of a fund; Covert v.
Rhodes, 48 Ohio St. 73, 27 N. E. 96, holding draft for part of fund unac-
cepted, does not constitute an equitable assignment; Hopkins v. Beebe, 26
1—66
5 Wheat. 277-290 NOTES ON U. S. REPORTS. 1042
Pa. St. 88, holding holder of a bill of exchange is not owner of property,
which drawer has remitted to drawee; Jermyn v. Moflfitt, 75 Pa. St. 402,
holding an assignment which professes to transfer a debt for wages not
yet earned against any person who may thereafter employ the assignor,
although there be notice of assignment to the employer, is insufficient, with-
out his acceptance; Appeals of City of Philadelphia, 86 Pa. St. 182, holding
municipality is not bound to recognize partial assignments; as also in
Geist's Appeal, 104 Pa. St. 355; Railway Co. v. Volkert, 58 Ohio St. 369,
370, 50 N. E. 925, holding assignment of half of a judgment may be en-
forced in equity ; Carter v. Nichols, 58 Vt. 555, 5 Atl. 198, holding employer
is not bound by partial assignment of employee's future wages; Am. etc.
Co. V. Gas Co., 47 Fed. 47, arguendo.
Distinguished in Methven v. Light Co., 66 Fed. 115, 35 U. S. App. 67,
where debtor had recognized the assignment; Exchange, Bank v. McLoon,
73 Me. 505, 510, 40 Am. Rep. 389, 394; James v. Newton, 142 Mass. 373,
376, 56 Am. Hep. 695, 698, 8 N. E. 125, 126, Superintendent etc. of P. S. v.
Heath, 15 N. J. Eq. 28, Harris Co. v. Campbell, 68 Tex. 27, 2 Am. St. Rep.
470, 3 S. W. 246, and National Bank v. Kimberlands, 16 W. Va. 589, 590,
all holding partial assignment of a debt is enforceable in equity; Schultz
V. Sutter, 3 Mo. App. 141, holding a corporation can make an assignment
of a call already due on stock, since it transfers the entire interest; dis-
senting opinion in Shaver v. Telegraph Co., 57 N. Y. 472, majority holdin?^
a conditional acceptance of an order afterward revoked, does not amount •
to an equitable assignment; Lowndes v. Ladson, Rich. Eq. Cas. 319, holdinj:^
order drawn on part of a fund will, as between the parties, be enforced
in equity as an equitable assignment.
Assignment of part of demand. Note, 2 Am. St. Rep. 473.
Partial assignment of claim or demand founded on contract. Note,
Ann. Oas. 1912A, 678, 676.
Where an order is drawn for the wliole of a fond, it amounts, after notice,
to an equitable assignment.
Approved in Bamsdall v. Waltemeyer, 142 Fed. 419, following rule; In
re Oliver, 132 Fed. 589, where bankrupt drew two drafts on agent collecting
his rents, each reciting ** value received and charge to rents for 1903,"
and were discovered by bank after payee's acceptance, and bankruptcy
ocouiTed. before maturity, drafts were lien on funds in hands of trustee ;
Varley v. Sims, 100 Minn. 340, 117 Am. St. Rep. 694, 10 Ann. Oas. 473,
8 L. R. A. (N. S.) 828, 111 N. W. 272, where check for entire deposit was
delivered before fatal surgical operation; Warren v. Emerson, 1 Curt.
241, 242, Fed. Cas. 17,195, holding maker having acquired equitable interest
of assignor may use it in his defense to action on note; United States
V. Cutts, 1 Sumn. 146, Fed. Cas. 14,912, holding transfer of stock, notwith-
standing statute requiring it should be on books, passed an equitable
interest; Barcroft v. Denny, 5 Houst. 14, holding a verbal acceptance of
written order for payment of money amounts to an equitable assignment;
Wheatley v. Strobe, 12 Cal. 98, 73 Am. Dec. 524, holding, under code, an
order for money, for full amount, is an assignment; Cashman v. Harrison,
\
1043 MANDEVILLE v. WELCH. 5 Wheat. 277-290
90 Cal. 302, 27 Pac. 285, holding bill of exchange does not operate as an
equitable assignment, until after acceptance; Mc Williams v. Webb, 32
Iowa, 679, holding, where order is drawn on the. whole of a fund, after
notice to drawee, it binds the funds in his hands in favor of payee, as
against an attaching creditor of drawer; First N^t. Bank v. Railway Co.,
52 Iowa, 381, 35 Am. Rep. 282, 3 N. W. 398, holding bill of exchange,
unaccepted, is not an assignment; Buckner v. Sayre, 18 B. Mon.. 755, hold-
ing that acceptance of a bill of exchange is an appropriation of that fund
to the holder; Robbins v. Bacon, 3 Me. 349, holding order for the whole
of a fund, after notice to drawee, binds the fund in his hands; Tripp v.
Brownell, 12 Cush. 382, holding order by seaman for wages due, on set-
tlement of voyage, is an assignment; Grammel v. Carmer, 55 Mich. 204,
54 Am. Bep. 865, 21 N. W. '419, holding a draft does not operate as an
assignment ; in dissenting opinion of same case, p. 213, 21 N. W. 424 ; Lewis
V. Traders' Bank, 30 Minn. 136, 14 N. W. 587, holding unaccepted draft is
not an assignment of fund; St. John v. Homans, 8 Mo. 386, holding mere
drawing of a check is not an assignment; Janney v. Bank of Missouri,
12 Mo. 586, holding bank does not become debtor to holder of government
draft, until acceptance; (distinguished in dissenting opinion of same • ase,
p. 587; Walker v. Mauro, 18 Mo. 566, holding an order for the whole of debt
is an equitable assignment of it) ; Bank of Commerce v. Bogy, 44 Mo. IS,
19, 100 Am. Dec. 250, 251, holding bill drawn upon debtor is evidence
of an assignment; Carter v. Burley, 9 N. H. 564, it seems an indorsement
of a promissory note may be treated as a bill of exchange ; Morton v. Naylor,
1 Hill, 585, holding order on tenant to pay rent, accepted, is an equitable
assignment; Harris v. Clark, 3 N. Y. 115, 118, 51 Am. Dec. 356, 358, holding
an unaccepted draft not being an assignment is not a valid gift causa
mortis; Kahnweiler v. Anderson, 78 N. C. 143, holding bill of exchange
operates as an equitable assignment; Gardner v. National City Bank, 39
Ohio St. 605, holding person's draft amounted to equitable assignment,
where drawee before knowledge of it had transmitted funds to drawer;
Lee V. Robinson, 15 R. I. 370, 5 Atl. 290, holding order for all of a fund
is an equitable assignment; Martin v. Maner, 10 Rich. 276, 70 Am. Dec.
225, holding a direction to transfer amount due him to credit of another,
extinguishes the indebtedness without a transfer; Blin v. Pierce, 20 Vt. 30,
holding order drawn for amount of debt operates as an equitable assign-
ment, notice being given to debtor; Railroad Co. v. Johnson, 29 Kan, 231,
arguendo.
Distinguished in Randolph v. Canby, 11 N, B. R, 296, 20 Fed. Cas, 258,
liolding mere presentation to dtawee of a negotiable bill, drawn against
a fund in his hands, less than bill, is not an equitable assignment; In re
Smith, 15 N. B. R. 459, 22 Fed. Cas. 408, where the check was not pre-
sented until after bankruptcy of drawer; Walker v. Seigel, 12 N. B. R.
394, 29 Fed. Cas. 50, declaring the rule pertains solely to actions at law.
What constitutes an equitable assignment. Note, 10 E. B. 0. 424.
A creditor shall not be permitted to split np a single caiue of action wltli^
ont the consent of his debtor.
5 Wheat. 277-290 NOTES ON U. S. REPORTS. 1044
Approved in Westham -Granite Co. v. Chandler, 4 Mackej (D. C), 34,
holding where debtor consents to partial assignments, he cannot later
complain; Central of Georgia Ry. Co. v. Dover, 1 Ga. App. 243, 57 S. E.
1004, holding assignment of part of wages cannot be sustained in court of
law; Firemen's Fund Ins. Co. v. Oregon R. Co., 45 Or. 59, 67 L. R. A. 161,
76 Pac. 1076, where insurer pays loss under policy in sum less than insured 'a
loss and takes subrogation assignment for sum paid, insurer and insured
may maintain joint action against wrongdoer causing loss ;> Phillips v. City
of Portsmouth, 112 Va. 167, 70 S. E. 503, holding chose of action against
city cannot be split by various assignments; Shankland v. Washing^n,
5 Pet. 394, 8 L. Ed. 167, holding owner of lottery ticket cannot sell part
^of it and make promisor liable to every holder of a fragment; The Hull
of a New Ship, 2 Ware (Dav.), 207, Fed. Cas. 6859, holding creditor can-
not divide cause of action by assigning parts; Cook v. Bidwell, 8 Fed. 456,
holding partial assignments of one's rights are Wot good as against the
other contracting party; Kansas City etc. R. R. C&. v. Robertson, 109 Ala.
299, 19 South. 433, holding one cannot, without consent of debtor, assign
part of clain\ so as to enable assignee to maintain an action; Chapman v.
Shattuck, 3 Gilm. (111.) 52, holding original parties to record can compro-
mise suit, notwithstanding a partial assignment of the cause of action;
Crosby v. Loop, 13 111. 629, holding an entire contract cannot be appor-
tioned and enforced in fragments; also Chicago & N. W.- R. R. Co. v.
Nichols, 57 111. 467, holding entire cause of action cannot be severed by
partial assignments; Roberts v. Corbin, 26 Iowa, 324, 326, 96 Am. Dec.
151, 152, holding holder of check cannot sue drawee for refusing to pay;
German Fire Ins. Co. v. BuUene, 51 Kan. 775, 33 Pac. 469, holding claim
against insurance company cannot be split up by assignments; Otis v.
Adams, 56 N. J. L. 41, 27 Atl. 1093, holding, under statute, assignee of
part of a contract cannot sile thereon in his own name, without consent of
other party; Yates v. Tisdale, 3 Edw. Ch, 75, holding manager of lottery,
where two parties have interest in ticket, may file interpleader; Love v.
Fairfield, 13 Mo. 305, 53 Am. Dec. 149, holding owner pf judgment at law
cannot, without consent of debtor, assign a part of it; Erwin v. Lynn, 16
Ohio St. 547, holding that holder of note indorsed in blank cannot make
part payable to one party and part to another; Little v. Portland, 26 Or.
243, 37 Pac. 912, holding that when city splits up a demand, by executing
warrants for separate amounts, it is liable on each warrant; Grain v.
Aldrich, 38 Cal. 519, 99 Am. Dec. 424, arguendo.
Distinguished in Rogers v. Penobscot Mining Co., 154 Fed. 614, 83 C. C. A.
380, holding suit can be brought on split debt if all persons interested in
account are made parties; Tieman v. Jackson, 5 Pet. 598, 8 L. Ed. 242,
holding choses in action are unassignable, but if debtor promises to pay
assignee, latter may maintain action for money received to his use; The
Elmbank, 72 Fed. 613, .614, 616, holding an order to pay part of what may
be realized from salvage service is enforceable in admiralty as an equitable
assignment of part of a fund and is not subject to rule of law against
splitting up causes of action; Whittemore v. Judd etc. Co., 124 N. Y. 677,
/
1045 NOTES ON U. S. REPORTS. 6 Wheat. 291-312
21 AnL St. B^. 714, 27 N. E. 247, holding separate assignments of a judg-
ment constitute no defense, if owners unite in a suit.
•
Miscellaneous. Cited in Cronin v. Patrick Co., 4 Hughes, 532, 89 Fed.
83, to point that assignee of bonds passing by assignment takes subject
to equities; Whetmore v. Murdock, 3 Wood. & M. 386, Fed. Cas. 17,509,
apparently not in point; also in Hudson v. Weir, 29 Ala. 299; Kenner v.
Creditors, 8 Mart. (La.) (N. S.) 41, and Chittenden v. Hurlburt, 2 Aikens,
136.
5 Wlieat. 291-292, 5 I.. Ed. 01, WALLACE T. AITOEBSON.
Quo warranto, to try the title to an office, can only he maintained at t^e
instance of the goremment.
Approved in State v. Cook, 39 Or. 379, 65 Pac. 90, holding under Hill's
Ann. Laws, § 357, providing that action at law shall be commenced and
prosecuted by prosecuting attorney, contestant for office of road super-
visor could not maintain action; State v, Stickley, 80 S. C. 69, 128 Am.
St. Bep. 855, 15 Ann. Gas. 136, 61 S. E. 21^, distinguishing between in-
junction to restrain acts of public officers and quo warranto to test their
right to hold office; Territory v. Lockwood, 3 Wall. 239, 18 L. Ed. 48,
holding proceeding of quo warranto to test person's right to exercise func-
tion^ of Supreme Court of territory, must be in name of United Stateis;
In re Yancey, 28 Fed. 451, holding, where party appears with commission
of President, under great seal, appointing him marshal, it is the duty of
judge to take his bond and administer oath ; State ex rel. v. Town Council
of Cahaba, 30 Ala. 67, holding quo warranto for forfeiture of municipal
charter cannot be filed on relation of a citizen; State ex rel. v. Curtis,
35 Conn. 378, 95 Am. Dec. 264, holding information in nature of quo war-
ranto will not lie in State court to try right to office in bank organized
under national act; State ex rel. v. Bowen, 8 S. C. 407, holding quo war-
ranto to determine title to office of presidential elector cannot be main-
tained in name of State; Wright v. Allen, 2 Tex. 160, holding writ ol quo
warranto can only be issued in name of State; State v. Railroad Co., 24
Tex. 116, holding State can institute suit to forfeit charter of a corpora-
tion without special authorization of legislature; United States ex reL v.
Lockwood, 1 Finn. 363, holding proceedings in quo warranto must be at
instance of the government; State v. Kennard, 25 La. Ann. 243, arg^uendo.
Right of private individual to file information in nature of quo war-
ranto to try title to public office. Note, 6 Ann. Gas. 464.
5 Wheat. 293-^12, 5 L. Ed. 92, POLK'S LESSEE t. WENDELL.
Federal courts conform to settled law of the States as to landed property.
Approved in United States v. Arredondo, 6 Pet. 732, S L. Ed. 562, con-
struing treaty with Spain of 1819, relative to grants of land in territory
of Florida; Brush v. Ware, 15 Pet. 106, 10 L. Ed. 677, following State
decisions as to whether courts can go behind patents for lands; Wynn v.
Garland, 16 Ark. 462, inquiring into pre-emption claim; dissenting opinion
5 Wheat. 29a-312 NOTES ON U. S. REPORTS, 1046
in Hall v. Pearl, 7 J. J. Marsh. 679, discussmg act providing for appro-
priation of waste lands; Smith v. Power, 23 Tex. 33, holding State de-
cisions, settling construction of local laws relating to land, should be bind-
ing on every court.
Qrant is void where State had no title or officer bad no anthority to isstie It.
Approved in United States v. Conway, 175 U. S. 68, 44 L. Ed. 75, 20 Sup.
Ct. 16, holding court will not determine priority of rights between claimant
and grantee when lands already granted ; Reeve v. North Carolina Land etc.
Co., 141 Fed. 822, 823, 824, 825, under Tennessee statute governing grants of
State lands, older of two conflicting grants, each based on void entry, passes
State's title; Smythe v. New Orleans Canal & Banking Co., 93 Fed. 925,
926, liolding in action of ejectment in Federal court complete defense may
be established by showing that land in controversy in Louisiana was held
undeK French grant, and never belonged to the United States, through
whom plaintiff claimed title; Miller v. Kerr, 7 Wheat. 5, 5 L. Ed. 882,
holding prior entry on warrant issued by mistake cannot be supported
against a senior patent; Patterson v. Winn, 11 Wheat. 384, 6 L. Ed. 500,
holding, where grant is absolutely void, its validity may be contested at
law; United States v. Arredondo, 6 Pet. 728, 730, 8 L. Ed. 561, 562, con-
struing treaty with Spain of 1819, relative to grants in territory of Flor-
ida; Sampeyreac v. United States, 7 Pet. 241, 8 L. Ed. 672, holding that
those coming in under void grant acquire nothing; Rice v. Railroad Co., 1
Black, 375, 17 L. Ed. 152, holding grant by territory without title is void;
Sabariego v. Maverick, 124 U. S. 281, 31 L. Ed. 438, 8 Sup. Ct. 1472,
holding conveyance by officer acting authoritatively will pass only such
title as the government has ; United States v. Samperyac, Hempst. 153, Fed.
Cas. 16,216a, holding those coming in under void grant acquire nothing;
Chamberlain v. Marshall, 8 Fed. 409, declaring patent issued without
authority of law void; Parker v. Duff; 47 Cal. 562, holding patents show-
ing they were issued for scrip for lands outside ceded territory are void on
their face; Hilliard v. Connelly, 7 Ga. 180, holding grant void on its face
may be attacked collaterally in court of law; Sykes v. McRory, 10 Ga. *
471, 54 Am. Dec. 404, holding grant issued by mistake cannot be impeached
collaterally in an action at law; Ballance v. McFadden, 12 111. 324, hold-
ing patent issued in case not authorized by law void; De Armas v. New
Orleans, 5 La. 178, 198, holding permission given by government which has
since lost authority is superseded by subsequent grant of succeeding gov-
ernment; Mantle v. Noyes, 6 Mont. 291, 5 Pac. 864, holding void a patent
for lands previously sold by government; Talbott v. King, 6 Mont. 108,
9 Pac. 442, holding town site patent cannot cut off rights of a prior locator
of a mining claim ; Groslouis v. Northcut, 3 Or. 399, holding claimant under
donation law may, before patent issues, obtain such an interest in land
that it will be subject to judicial sale ; Calloway v. Hopkins, 11 Heisk. 377,
holding grant made by State without title is void; Goode v. McQuecns, 3
Tex. 255, holding grant made is void, unless shown to have been made
with approbation of supreme government; Blankenpickler v. Anderson, 16
Gratt. 62, holding patent void if grantee were dead at time of issuance;
Holliman v. Peebles, 1 Tex. 700, arguendo.
1047 POLK'S LESSEE v. WENDELL. 5 Wheat. 293-312
Distinguished in^ Payne v. Treadwell, 16 Cal. 229, holding grant by
alcalde will be presumed to have been within his authority; dissenting
opinion in Pino v. Hatch, 1 N. M. 140, majority holding political chief of
province of New Mexico could not grant any of the public domain without
express authority, but such grant is admissible in evidence against one
having no better right; Payne v. Treadwell, 16 Cal. 229, and Hart v. Bur-
nett, 15 Cal. 563, holding grant by alcalde is presumed to have been made
within lawful authority.
A grant raises a presumption that every prerequisite to its issuance was
complied with. v
Approved in Stockard v. McGary, 120 Tenn. 184, 109 S. W. 508, holding
grant of land good even though wrong county is named, and stands as if
right name was inserted ; Patterson v. Jenks, 2 Pet. 237, 7 L. Ed. 409, hold-
ing burden of proof is on one attacking validity of a grant ; United States
V. Arredondo, 6 Pet. 731, 8 L. Ed. 562, construing treaty with Spain, of
1819, relative to grants of lands in Florida; Bagnell v. Broderick, 13 Pet.
448, 10 L. Ed. 241, holding patent from United States of public lands is
conclusive in action at law ; Best v. Polk, 18 Wall. 118, 21 L. Ed. 808, hold-
ing the location is, in itself, evidence that directions of treaty were
observed; Mobile v. Eslava, 9 Port. 596, 33 Am. Dec. 332, holding, when
grant is made by public officer, it will be presumed he did it by orders
McConnell v: Wilcox, 1 Scam. 351, holding decision of land register in
relation to the right of pre-emption to a tract of lands within his juris-
diction, is conclusive; Arnold v. Grimes, 2 G. Greene, 83, holding patent
from United States for land cannot be impeached at law for fraud ; Dewey
V. Campau, 4 Mich. 566, holding certified copy of map from general land
office is evidence of location of reserves; Wray v. IJoe, 10 Smedes & M.
461, holding certificate of register of land office is evidence of date of
location; Kissell v. St. Louis Public Schools, 16 Mo. 582, holding purchaser,
to question legality of act setting aside school lands, must show it entirely
without authority; Frampton v. Wheat, 27 S. C. 292, 294, 3 S. E. 464, 465,
holding grant fair on its face cannot be assailed collaterally; Houston v.
Pillow, 1 Yerg. 488, holding when land is re-marked according to calls of
grant, such re-marking is conclusive; Howard v. Colquhoun, 28 Tex. 146,
holding action of commissioner in issuing grant is conclusive, State not
being a party; Parkison v. Bracken, 1 Pinn. 180, 39 Am. Dec. 297, holding
that patent regular on its face will be presumed to have been executed
according to law; Ely v. Cram, 17 Wis. 541, holding it is presumed that
officers acting under a special statute rightfully exercised their authority.
Distinguished in Moffat v. United States, 112 U. S. 31*, 28 L. Ed. 625.
5 Sup. Ct. 14, holding United States may assail patent fraudulently issued
by its officers to a fictitious person; Hardy v. Harbin, 4 Sawy. 547, Fed.
Cas. 6060, holding patent does not affect any equitable relations of holders
of subsequent conveyances from grantee to each other or third parties;
Rceder v. Barr, 4 Ohio, 459, 22 Am. Dec. 763, holding there can be no pre-
sumption that rights of heirs have been divested by judgment of court of
competent jurisdiction; Bell v. Duncan, 11 Ohio, 197, holding, where a
5 Wheat. 313-325 NOTES ON U. S. REPORTS. 1048
patent of the United States recites assignment by persons competent to
convey, there is no presumptive notice of latent defects; Neal v. E. T,
Collge, 6 Yerg. 197, holding this presumption falls in eqii^ty if grantee
had no incipient title by a warrant to the land granted.
Miscellaneous. Cited in Strother ▼. Lucas^ 12 Pet. 437, 9 L. Ed. 1147,
application doubtful.
Judicial notice. Note, 89 Am; Dec. 686.
5 Wheat. 318-317, 5 Ii. Ed. 97, MARfiHATJ, t. BEVEBI^T.
Judgment at law cannot be enjoined, without making judgment creditor ^
party, though defendant admits he is owner of judgment, y
Cited in Ribon v. Railroad Co., 16 Wall. 451, 21 L. Ed. 369, holding bill
defective where, in action 'charging collusion, trustees and consenting stock-
holders were not made parties; Phillips v. Mariner, 5 Biss. 28, Fed. Cas.
11,105,. holding, where on foreclosure on two notes, no provision was made
in bill or decree for third note, a bill of review will lie; Wilson v. Castro,
31 Cal. 427, holding all parties materially interested in suit in equity ought
to be made parties; Bryant v. Russell, 23 Pick. 523, holding a creditor
seeking to carry into effect an assignment in trust for benefit of creditors
must make ^ creditors parties.
Distinguished in Hannegan v. Roth, 12 Wash. 697, 44 Pac* 256, holding
court will not dismiss action on account of nonjoinder of necessary party,
but will retain it until all necessary parties are brought in.
5 Wheat. 317-325, 5 Ii. Ed. 98, LOUaHBOBOTJaH V. BLAKE.
Power of Oongreap to levy and collect taxes, duties and exclBes is coexten-
sive with territory of the United States.
Approved in Downes v. Bidwell, 182 U. S. 267, 45 L. Ed. 1098, 21 Sup.
Ct. 789, 812, holding island of Porto Rico by treaty became territory to
United States, but not a part within Const., art. I, § 8, requiring duties,
imposts and excises to be ''uniform through the United States"; Bigley ▼.
New York & P. R. S. S. Co., 105 Fed. 76, holding after Porto Rico act of
April 12, 1900, vessels entering New York from Porto Rico were exempt
from pilot charges; Goetze v. United States, 103 Fed. 81, holding under
treaty ceding Porto Rico, and until action of Congress for purpose of col-
lecting customs, Porto Rico was same as any other foreign country; Ex
parte Ortiz, 100 Fed. 962, holding upon cession of Porto Rico to United
States, Constitution at once extended over it, and in criminal prosecutions,
right of jury trial could not be denied; dissenting opinion in Pollock v.
Farmers' L. & T. Co., 158 U. S. 693, 59 L. Ed. 1145, 15 Sup. Ct. 942,
majority holding income tax a direct tax and invalid.
Distinguished in Day v. Buffinton, 3 Cliff, 386, Fed. CSDs. 3675, holding
salary of judge payable by State not taxable as income by United States ;
Smith V. Short, 40 Ala. 386, holding act of Congress requiring stamp on
legal process of State court to be unconstitutional; Union Bank v. Hill, 3
Cold. 327, holding act of Congress taxing original process of State courts
void.
1049 MECHANIC^' BANK V. BANK OF COLUMBIA. 5 Wheat. 326^338
«
CenfliiB U to famidh a stihdard by wbicli direct taxes may be apportioned.
Cited in United States v. Mitchell, 58 Fed. 998, holding provision of act
imposing penalty for refusal of corporate officers to answer questions is
inefi^ective, because there is no provision requiring such answers.
Congress can exercise exclusive Jurisdiction in all cases within District of
Columbia.
Approved in United States v. O'Neal, 10 App. D. C. 238, holding Congress
had power to provide jury trials in Justices' Courts of District of Colum-
bia; Craighill v. Van Riswick, 8 App. D. ^ 214, holding Supreme Court
had jurisdiction to hear injunction suit brought' to restrain special assess-
ment in District of Columbia; Dred Scott v. Sandford, 19 How. 514, 621,
15 L. Ed. 746, 790, holding Congress may legislate over a territory, but
cannot prohibit a citizen of United States from taking his slaves there.
Direct taxes may be imposed on District of Columbia by Congress.
Approved in Binns v. United States, 194 U. S. 492, 48 L. Ed. 1089, 24
Sup^ Ct. 816, license fees imposed on certain business by Alaska Penal
Code, § 460, are not excises levied to pay debts and provide for common
defense and general welfare, but are local taxes; Downes v. Bidwell, 182
U. S. 259, 262, 45 L. Ed. 1096, 21 Sup. Ct. 776, 779, holding Congress may
impose direct tax on District of Columbia; Pacific Ins. Co. v. Soule, 7 Wall.
446, 19 L. Ed. 99, deciding that tax on premiums, assessments and income
of insurance company is not '*a direct tax"; Gibbons v. District of Colum-
bia, 116 U. S. 407, 29 L. Ed, 681, 6 Sup. Ct. 429, holding Congress may tax
different classes of property within the District at different rates; Parsons
v. District of Columbia, 170 U. S, 56, 42 L. Ed. 947, 18 Sup. Ct. 525, holding
Congress could create a general system to store water in the District and
prescribe amount of assessment af d the method of its collection ; dissenting
opinion in Tread way v. Schnauber, 1 Dak. Ter. 265, 267, 46 N. W. 4Y4,
475, arguendo.
Constitutionality of poll taxes. Note, 12 Ann. Cas. 317.
Poll taxes. Note, 29 L. E. A. 407.
Miscellaneous. Cited in Rhode Island v. Massachusetts, 12 Pet. 733,
9 L. Ed. 1264, and Second Municipality v. Duncan, 2 La. Ann. 187, appar-
ently not in point.
6 Wbeat. 326-338, 5 Ii. Ed. 100, MECHANICS' BANK T. BANK OF CO-
laUMBIA.
Parol evidence Is, in case of doubt, admissible to show drawing of check
by bank cashier was an official and not a private act.
Approved in American Bonding & Trust Co. v. Takahashi, 111 Fed. 129,
liolding where contract requires one party to pay money to person desig-
nated as "trustee" tut without stating for whom and for what purpose,
parol evidence of circumstances leading to transaction may be given for
purpose of fixing responsibility if defalcation; Emmerling v. First Nat.
Bank, 97 Fed. 746, holding under facts that receipt on letter-head of ban]^,
6 Wheat. 326-338 NOTES ON U. S. REPORTS. . 1050
and signed by cashier for securities, may be shown by parol to have been
receipt of bank; Planters' Chemical & Oil Co. v. Steames, 189 Ala. 508,
66 South. 700, holding parol evidence admissible where note in controversy
did not show whether signers of note did so individually or as officers;
Second Nat. Bank v. Midland Steel Co., 155 Ind. 589, 52 L. R. A. 807, 58
N. E. 836, presumption that note signed "R. J. B., President" on letter-head
of corporation not conclusive that it was that of corporation, but it could be
shown by parol that •note was contract of corporation; Belmont Dairy Co. v.
Tlirasher, 124 Md. 326, 92 Atl. 768, holding one who signs name without
description must show agreentent that he was not intended to be bound
personally ; Laclede Construction Co. v. Moss Tie Co., 185 Mo. 68, 84 S. W.
89, admitting parol evidence to explain contract for sale of railroad ties
as may be needed during certain year; Myers v. Chesley, 190 Mo. App.
376, 177 S. W. 327, where defendant signed note as president below name
of corporation ; Knippenberg v. Greenwood Min. etc. Co., 39 Mont. 20, 101
Pac. 162, where evidence was offered to show president acted as agent of
corporation; Wiers v. Treese, 27 Okl. 777, 117 Pac. 183, holding ambiguity
existed where note signed by corporation's president; Janes v. Citizens'
Bank, 9 Okl. 557, 60 Pac. 293, admitting parol to show note signed by de-
fendant in ofiGicial ^capacity as Sjecretary of corporation ; Societie Des Mines
V. Mackintosh, 5 Utah, 574, 18 Pac. 365, holding where defendant knew that
"M." was manager of plaintiff corporation, executed his note to "M., Com.
Dir.," defendant was liable to plaintiff on note; dissenting opinion in
Andrus v. Blazzard, 23 Utah, 264, 54 L. R. A. 354, 63 Pac. 896, majority
holding where guardian executed mortgage on property of ward to pay
debts, he binds himself and not ward; Fleckner v. United States Bank, 8
Wheat. 358, 5 L. Ed. 636, holding banks may bind themselves by acts of
officers without the corporate seal; Bradley v. The Washington etc. Packet
C04, 13 Pet. 98, 10 L. Ed. 77, holding extrinsic evidence is admissible to
give effect to a written instrument by applying it to its proper subject
matter; Baldwin v. Bfink, 1 Wall. 241, 17 L. Ed. 536, admitting parol evi-
dence to show that person to whom note was drawn as cashier, was acting
as cashier when he took the note; Metcalf v. Williams, 104 U. S. 97, 26
L. Ed. 667, holding agent signing paper, without writing principal's name,
is not liable personally .to one without knowledge; Xenia v. Stewart, 114
U. S. 228, 29 L. Ed. 103, 5 Sup. Ct. 847, holding declarations of cashier
at time of transaction may be used against bank; Bank of Newbury v.
Baldwin, 1 Cliff. 523, Fed. Cas. 892, holding where cashier took note run-
ning to him as cashier without specifying what bank, evidence admissible
to show he was acting for a certain bank; Dessau v. Bours, McCall, 23,
Fed. Cas. 3825, holding where there is sufficient in instrument to create a
doubt as to whom credit was given, parol evidence admissible to remove it ;
Baker v. Bank, 86 Fed. 1009, 'holding where shares are registered to A.,
as cashier of defendant bank, defendant may set up that it holds them as
a pledgee ; In re Southern M. R. it. Co., 10 N. B. R. 89, 22 Fed. Cas. 825,
holding obligation signed by corporate officer affixing his official position,
may be shown to be" obligation of the corporation ; In re Troy Woolen Co.,
1061 MECHANICS' BANK v. BANK OF COLUMBIA. 6 Wheat. 326-338
f
8 N. B. R. 414, 24 Fed. Cas. 246, holding a party dealing with an agent
may resort to the principal, unless contraet was exclusively on agent's
credit; Everett v. United States, 6 Port. 182, 30 Am. D^. 588, holding
agents of corporation may act without a seal; Lazarus v. Shearer, 2 Ala.
723, holding when it is doubtful whether party signs personally or as an
agent, parol evidence is admissible; as also in Wetumpka R. R. Co. v.
Bingham, 5 Ala. 663, ruling similarly; Clealand v. Walker, 11 Ala. 1064,
46 Am. Dec. 240, holding prima facie intendment that party signed as
principal may be rebutted by proof; Savings Bank v. Davis, 8 Conn. 202,
court dividing as to whether an attorney may be appointed by corporation
to convey land, without a power under seal; Bean v. Pioneer Min. Co., 66
Cal. 453, 56 Am. Eep. 107, 6 Pac. 87, where payee knew note was given for
indebtedness ^f company, agent not liable though note read, "We promise"
and both names appeared in signature; Hobson v. Hassett, 76 Cal. 206,
9 Am. St. Rep. 195, 18 Pac. 322, holding one signing with "president"
affixed was individually liable, nothing on note indicating who was prin-
cipal; S. P. Co. V. Von Schmidt Dredge Co., 118 Cal. 373, 50 Pac. 652,
where evidence on face of charter indicated it was designed for the co-
partnership, parol evidence was admissible to bind^the company; Hall v.
Rand, 8 Conn. 575, admitting parol evidence of subject matter to affect the
construction ; Stamford Bank v. Ferris, 17 Conn. 270, 272, holding transfer
of stock to "A., Cashier," to secure liability due bank, vested legal right
to shares in bank; Merchants' Bank v. Central Bank, 1 Ga. 429, 431,
44 Am. Dec. 668, 670, holding in instrument not under seal parol evidence
admissible to remoye doubt as to liability; Ghent v. Adams, 2 Ga. 218,
admitting parol evidence to show whether justices signed note in official
or individual capacity ; Ohio Si M. R. R. Co. v. Middleton, 20 III. 635, 636,
holding extrinsic evidence admissible, when doubtful whether contract was
to bind principal and agent; Swarts v. Cohen, 11 Ind. App. 23, 38 N. £.
537, admitting parol evidence to clear up ambiguity as to liability on note ;
Gourley v. Hankins, 2 Iowa, 77, holding as between third person, one may
show by parol that person doing act is officer de facto ; dissenting opinion
in Mathews v. Mattress Co., 87 Iowa, 250, 19 L. R. A. 679, 54 N. W.
227, on note "We promise," signed -"Co.; B, P't," parol evidence not
admissible to bind company alone; Taylor v, Williams, 17 B. Mon. 494,
holding officer of corporation acting as agent and within his authority not
liable individually ; Hopkins v. Lacouture, 4 La. 66, holding power executed
by agent in his own name binds principal; Barlow v. Society, 8 Allen, 461,
holding note reading "I, as treasurer, etc., promise" and signed "B., Treas."
the note of the society; Detroit v. Jackson, 1 Doug. (Mich.) 117, holding
principal liable, though agent had signed in his own name; Farmers' & M.
Bank v. Bank, 1 Doug. (Mich.) 469, 471, holding bill, drawn on "A., Cashier
of B. Bank," and accepted by "A., Cashier," was drawn on and accepted
by bank ; First Nat. Bank v. Loyhed, 28 Minn. 398, 10 N. W. 422, holding
it is competent for agent to sign simply the name of the principal; Hardy
v. Pilcher, 57 Miss. 22, 34 Am. Rep. 433, admitting parol evidence to show .
ae<;eptance was not to bind agent personally; Martin v. Smith, 65 Miss. 3|
5 Wheat. 326-338 NOTES ON U. S. REPORTS. 1052
3 South. 34, admitting parol evidence where bill was signed "A., Treas.";
Southern Hotel Co. v. Newman, 30 Mo. 121, holding acts of corporation
may be proved 'by oral testimony ; Smith v. Alexander, 31 Mo. 195, where
signer affixes official character, parol evidence is admissible to determine lia-
bility; Washington M. F. Ins. Co. v. St. Mary's Seminary, 52 Mo. 489, 490,
holding if there is an ambiguity in description of person, parol evidence is ad-
missible ; First Nat. Bank v. Gay, 63 Mo. 42, 21 Am. Rep. 435, holding simple
signing of name of principal by agent is sufficient; Savage v. Rix, 9 N. H.
270, holding to bind principal, it must in some way appear to be his eon-
tract; Morse v. Green, 13 N. H. 36, 38 Am. Dec. 473, holding fact that
signature was placed there by an agent need not appear on the note; Dow
V. Moore, 47 N. H. 426, holding if name of principal appear in contract, not
under seal, he alone will be bound if that intent can be collected from the
instrument; Bell v. Martin, 18 N. J. L. 169, admitting parol evidence to
identify note mentioned in writing; Kean v. Davis, 21 N. J. L. 690, 692,
47 Am. Dec, 187, 189, holding in case of ambiguity parol evidence admis-
sible to show intent of parties signing; Smith v. Clayton, 29 N. J. L. 361,
holding parol evidence admissible to show meaning of "grain"; Luna v.
Mohr, 3 N. M. 65, 67, 1 Pac. 867, 868, holding one cannot be liable on bill
as drawer, his name not appearing thereon as such; Bank of Utica v.
Magher, 18 Johns. 346, holding parol evidence admissible to explain the
ambiguity on face of instrument; Ely v. Adams, 19 Johns. 318, admitting
parol evidence to explain ambiguous Writing; Fish v. Hubbard, 21 Wend.
661, admitting parol evidence to show location and ownership of dam and
mills in reference to which agreement was made; dissenting opinion in
Safford v. Wyckoff, 4 Hill, 449, majority holding bill issued by association,
organized without consent of controller, will bind it, though signed by the
cashier only; Barnes v. Ontario Bank, 19 N. Y. 166, holding bank bound
by certificate of deposit signed by the cashier; Rumbough v. Improvement
Co., 106 N. C. 466, 11 S. E. 529, holding evidence that A. was acting as
officer of such corporation and had authority to accept drafts admissible;
Ish V. Crane, 8 Ohio St. 546, where transaction was not done in name of
principal, but by his authority, it is obligatory on his heirs, likewise in
Ish V. Crane, 13 Ohio St. 610 ; Guthrie v, Imbrie, 12 Or. 193, 58 Am. Rep.
339, 6 Pac. 670, holding when instrument is ambiguous, liability of prin-
cipal or agent may be proved by parol evidence; Early v. Wilkinson, 9
Gratt. 75, 78, admitting parol evidence to remove ambiguity on face of in-
strument ; Waddill v. Sebree, 88 Va. 1015, 29 Am. St. Rep. 768, 14 S. E. 850,
where one signs as agent, parol evidence is admissible to show who is the
undisclosed principal; Brewster v. Baxter, 2 Wash. Ter. 141, 3 Pac. 845,
holding parol evidence admissible to show circumstances under which in-
complete memorandum of sale was signed, and the capacity of signer;
Devendorf v. West Va. Oil Co., 17 W. Va. 148, 155, 159, holding a person
bound by signature on note, which he has virtually made his own by allow-
ing its use in the course of his business ; Ganson v. Madigan, 15 Wis. 154,
82 Am. Dec. 665, admitting parol evidence to explain patent ambiguity;
Port V. Williams, 6 Ind. 220 , Robinson v. St. Louis, 28 Mo. 490, and Le Roy
V. Beard, 8 How. 469, 12 L. Ed. 1160, all arguendo.
1063 MECHANICS' BANK V. BANK OF COLUMBIA. 5 Wheat. 326-338
Distinguished in Cragin v. Lovell, 109 U. S. 198, 27 L. Ed. 905, 3 Sup. Ct.
134, holding no action lies against principal on note signed by agent, not
disclosing name of principal; Falk v. Moebs, 127 U. S. 605, 606, 607, 32
L. Ed. 268, 269, 8 Sup. Ct. 1322, 1323, holding where note was signed, with
corporation name, *'A., Sec," and indorsed '*A., Sec.,'' parol evidence was
inadmissible to show indorser intended to bind himself personally; Warner
V. Brinton, 29 Fed. Cas. 238, 240, holding extrinsic evidence inadmissible to
explain patent ambiguity in will; Cleaveland v. Stewart, 3 Ga. 297, holding
parties signing as "trustees" individually liable; Hypes v. Griffin,' 89 111.
137, 31 Am. Rep. 73, holding parol evidence is inadmissible to exonerate a
trustee appearing as principal to a note; Bank v. Carpenter, 26 Ind. 113,
where debtor of bank assigned stock to B., without describing him as
cashier, B. held it personally; Underbill v. Gibson, 2 N. H. 355, 9 Am. Dec.
85, holding if agent uses no language applicable to corporation, and his
authority is questionable, ^e is personally liable; Kean v. Davis, 20 N. J. L.
429, holding person cannot by parol evidence discharge himself from the
personal liability established by the instrument; see dissenting opinion,
p. 433; Bickley v. Bank, 39 S. C. 291, 39 Am. St. Rep. 726, 17 S. E. 97l3,
holding parol inadmissible to show certificate of deposit signed "B., Man-
ager," was made with B. the bank's president ; see 43 S. C. 536, 21 S. E. 889 ;
Shuey v. Adair, 18 Wash. 194, 202, 63 Am. St. Bep. 883, 889, 39 L. B. A. 476,
51 Pac. 390, 393, agent signing note in his own name cannot introduce parol
evidence to' exonerate himself from personal liability; Sparks v. Dispatch
T. Co., 104 Mo. 643, 24 Am. St. Rep. 855, 15 S. W. 420, holding where
president merely signs his individual name, parol evidence is inadmissible
to prove agency; Luna v. Mohr, 3 N. M. 65, 1 Pac. 867, holding party can-
not, by parol testimony, be liable upon n^otiable instrument where his
name is not disclosed.
Implied powers of bank cashiers. Note, 77 Am. Dec. 760, 762.
Liability of person signing negotiable paper as officer of corporation*
Note, 6 Ann. Gas. 1004.
Liability of one signing bill or note as agent. Note, 4 £. R. 0. 284,
286.
Principal is liable for acts of agent done in tbe exercise of, and within
the scope of his power.
Approved in Grant County State Bank v. Northwestern Land Co., 28
N. D. 506, 150 N. W. 744, holding where principal allowed agent to repre-
sent himself as having authority, it is estopped from denying it; Firemen's
Fund Ins. Co. v. Schreiber, 150 Wis. 51, Ann. Gas. 1913E, 823, 45 L. R. A.
(N. S.) 814,^135 N. W. 510, holding garage owner not liable for injuries '
to auto during joy ride of mechanic after working hours ; The Joseph Grant,
1 Biss. 196, Fed. Cas. 7538, holding bill of lading signed in blalik by master,
void; Walker v. Manhattan Bank, 25 Fed. 254, holding bank cannot, with-
out express authority from principal, apply money deposited by agent to
debt due it from third person ; Blum v. Robertson, 24 Cal. 140, holding prin-
cipal not bound by act of agent beyond hi^ powers ; Pouilin v. Railroad Co.,
5 Wheat. 338-359 NOTES ON U. S. REPORTS. 1054
47 Fed. 860, holding company liable where passenger was ejected through
defect in ticket, resulting from omission of ticket agent ; Sagers v. Nuckolls,
3 Colo. App. 101, 32 Pac. 189, holding master not liable for act of servant
done without the course of employment ; Merchants' Bank v. Central Bank,
1 Ga. 428, 430, 44 Am. Dec. 666, 669, holding corporation liable where it
accepts benefit of act of agent done without authority; McDougald v.
Bellamy, 18 Ga. 432, holding that corporation is responsible for wrongs of
servants ; Foster v. Essex Bank, 17 Mass. 509/ 9 Am. Dec. 179, holding bank
not liable where cashier took gold from cask dex)osited in bank for safe-
keeping; Huntington v. Knox, 7 Cush. 375, holding principal may maintain
action for price of article sold by agent not disclosing his agency; Sanborn
V. Insurance Co., 16 Gray, 454, 77 Am. Dec. 421, holding agent of company
authorized "to effect insurance," can make an oral contract; Page v.
Lathrop, 20 Mo. 593, holding extrinsic evidence admissible to show agent's
authority; Franklin v. Insurance Co., 52 Mo. 465, holding authority of
agent may be proved by custom of the business, and habits of principal;
Norton v. Bank, 61 N. H. 593, 60 Am. Bep. 336, holding bank not liable on
guaranty made by officer, it not having that power; Bruce v. Reed, 104
Pa. St. 414, 40 Am. Bep. 587, holding proprietor of newspaper liable for act
of employee in publishing libel ; Maxwell v. Planters' Bank, 10 Humph. 510,
holding cashier had authority to indorse note given to bank ; Northern Bank
V. Johnson, 5 Cold. 94, holding restrictions in charter requiring both sig-
nature of president and cashier do not apply to drawing and indorsing of
checks and drafts, and cashier is not individually liable on them; Walsh
V. Pierce, 12 Vt. 138, holding g*eneral agency may be proved by dealings
between the parties or by subsequent recognition.
Distinguished in New York Life Ins. Co. v- M^rtindale, 75 Kan. 144,
121 Am. St. Bep. 362, 12 Ann. Oa^. 677, 21 L. B. X. (N. S.) 1045, 88 Pac.
560, holding. where there is nothing to show agency, principal cannot be
held; dissenting opinion in Firemen's Fund Ins. Co. v. Schreiber, 150 'Wis.
72, Ann. Oas. 1913E, 823, 45 L. B. A. (N. S.) 314, 135 N. W. 518, majority
holding garage owner not liable for injuries to auto during joy ride of
mechanic after working hours; Wilson v. Peverly, 2 N. H. 549, holding
master not liable for negligence of servant in exceeding special orders.
Suit by principal on note to agent. Note, 12 Am. Dec. 714.
Who may sue on note payable to cashier. Note, 42 Am. Dec. 379.
Liability of principal on negotiable paper executed by agent. Note,
21 L. B. A. (N.. S.) 1065, 1080, 1081.
Miscellaneous. Cited in Sumner v. Marcy, 3 Wood, & M. Ill, Fed, Cas.
13,609, apparently not in point ; Power v. Kane, 5 Wis. 269, to point that
usage may become a part of a contract.
6 Wheat. 338-359, 6 L. Ed. 104, THE JOSEFA SEaUNDA.
Plea of distress or necessity to excuse violation of law and avoid forfeiture
must be conclusively established by claimant.
Approved in In re Calvi, 185 Fed. 656, holding burden was upon vendee
of bankrupt to show purchase made in good faith; United States v.
1056 BLAKE v. DOHERTY. 6 Wheat. 359-374
Schooner Catharine, 2 Paine, 747, Fed. Cas. 14,755, holding where voyage
is commenced to Africa, with preparations usually employed in slave trade,
claimant must remove doubt with unequivocal proof.
Captors may subject property captured to forfeiture for violation of
muiiclpal law, even as against original owners. «
Approved in Hopner v. Appleby, 5 Mason, 75, Fed. Cas. 6699, holding
captor has right to sell property.
Miscellaneous. Cited in The Josefa Segunda, 10 Wheat. 319, 6 L. Ed.
331 ; Merritt v. Package of Merchandise, 30 Fed. 197 ; Coweta etc. Mfg. Co.
V. Rogers, 19 Ga. 421, 65 Am. Dec. 606.
5 Wheat. 369-S74, 6 I*. Ed. 109, BLAKE v. DOHEBTY. ^
Description in grant is sufficient if object conveyed Is ascertainable with
aid of extrinsic evidence.
Approved in Crotty v. Effler, 60 W. Va, 262, 9 Ann. Oas, 770, 54 S. E. 34^,
where land described by reference to previous conveyance ; HoUey v. Curry,
68 W. Va. 73, 112 Am. St. Rep. 946, 51 S. E. 136, upholding sufficiency of
description of land as "72 acres of land situate near Hamlin, the same
bought of the land company"; Sengf elder v. Hill, 21 Wash. 381, 58 Pac.
254, holding purchaser from grantee under quitclaim deed purchased with
notice when it was shown that the quitclaim deed was executed to correct
minor discrepancy between two plats of same land ; Cox v. Hart, 145^ U. S.
389, 36 L. Ed. 747, 12 Sup. Ct. 967, holding parol evidence admissible
to show to which of two tracts of land description in marshal's deed sl^-
plies ; Brown v. Hunt, 4 Ala. 135, holding where patent conveyed eo nomine
a quarter section, though according to official survey it contains less, the
latter limits the grant; Miller v. Cullum, 4 Ala. 581, holding parol evidence
admissible to indicate monument referred to in deed; Mayor etc. of Mobile
V. Farmer, 6 Ala. 741, holding power of register to determine conflicting
claims, does not extend to a complete gprant; Kennedy v. Townsley, 16 Ala.
245, holding a donation claimant can take nothing until quantity of land
has been ascertained; dissenting opinion in Hughes v: Wilkinson, 35 Ala.
473, majority holding it cannot be proved by parol testimony of justice
that acknowledgment of wife was intended to apply to deed and not to
relinquishment; Stanley v. Green, 12 Cal. 166, holding description of land
by name or number is sufficient; Andrews v. Murphy, 12 Ga. 433, holding
description is sufficient that shows intention of grantor as to what property
is conveyed ; Jennings v. National Bank, 74 Ga. 788, holding parol evidence
may be resorted to, to explain ambiguity in a deed; Mayor etc. of Chauncey
V. Brown, 99 Ga. 771, 26 S. E,.765, parol evidence admissible to show appli-
cation of deed to land; Pursley v. Hayes, 22 Iowa, 40, 92 Am. Dec. 373,
holding grant not void for uncertainty if the court can imagine testimony
which would identify the monument ; Slater v. Breese, 36 Mich. 81, holding
it is always competent to identify natural monuments by extrinsic proof;
Poacher v. Strauss, 47 Miss. 362, holding extrinsic evidence of county and
State, where land is admissible; Campbell v. McArthur, 2 Hawks. 38, 11
5 Wheat. 374-385 NOTES ON U. S. REPORTS. 1056
Am. Dec. 740, holding mistake in courses of a deed may be corrected by
reference to another deed; Cooper v. White, 1 Jones (N. C), 392, holding
mistake in courses or distance may be corrected by a more certain descrip-
tion in the deed or by a plat referred to in same ; McChesney v. Wainwright,
5 Ohio, 453, holding deed describing land as half the tract granted by
another d^ed is prima facie a good description; Raymond v. Coffey, 5 Or.
134, holding parol evidence is admissible to locate boundaries where ambig-
uity exists; Boehreinger v. Creighton, 10 Or. 44, admitting parol evidence to
show location of a stake ; Zeigler v. Hautz, 8 Watts, 384, holding words of
general description may be made defmite by extrinsic circumstances;
Douthit V. Robinson, 55 Tex. 74, holding extrinsic evidence admissible to
render a deed certain.
Distinguished in Murphy v. Hall, 68 Wis. 208, 31 N. W. 757, holding de-
scription of land by numbers without referring to any book or map is
defective for uncertainty; Wiley v. Smith, 3 Ga. 558, holding where there
is no ambiguity' in a will parol evidence is inadmissible.
Mortgages, description of property (not including the question of
boundaries). Note, 1S7 Am. St. Bep. 258.
Parol evidence of mistake in description of land devised. Note, 16
L. R. A. 821.
Private survey made by direction of interested party inadmissible to prove
boundary of grant of public lands.
Approved in United States v. Montana Lumber etc. Co., 196 U, S. 578,
49 L. Ed. 605, 25 Sup. Ct. 367, private survey is inadmissible in action by
government • for value of timber cut from unsurveyed lands to show that
lands when surveyed will be included in railroad grant; United States v.
Bonner's Ferry Lumber Co., 184 Fed. 189, holding title to public lands
did not vest in State until after survey by United States; Rose v. Davis,
11 Cal. 142, rejecting map of United States surveyor, when authority to act
had not been proved; Surget v. Little, 5 Smedes & M. 331^ holding parol
evidence that private survey conforms to official survey is inadmissible.
Plat and certULcate of survey annexed to patent of public land, as also
copy of entry on which survey was made, are admissible to identify land
patented.
Approved in Ipock v. Gaskins, 161 N. C. 679, 77 S. E. 845, where grant
in deed called for "west" end instead of "east" end.
5 Wbeat. 374-385, 5 L. Ed. 113, HANBLEY ▼. ANTHONY.
When a river is the boundary between two States and original property
is in neither, each owns to the middle of the stream.
Approved in State of Washington v. State of Oregon, 211 U. S. 134,
53 L. Ed. 120, 29 Sup. Ct. 47, where boundary between Washington and
Oregon was held to be middle of north channel of Columbia River ; Moore
v. McGuire, 142 Fed. 790, construing act of 1817, admitting Mississippi into
Union as fixing western boundary in middle of main channel of Mississippi
River; Wall v. Wall, 142 N. C. 389, 55 S. E. 283, deed to land on non-
1067 HANDLEY v. ANTHONY. 5 Wheat. 374-385
navigable river includes island between mainland and middle of stream;
State V. Muncie Pulp Co., 119 Tenn. 94, 104 S. W. 449, holding avulsion of
land by Mississippi River cannot change boundary between Tennessee and
Arkansas; The Schooner Fame, 3 Mason, 150, Fed. Cas. 4634, holding true
line between United States and British provinces is the middle of stream;
Buttenuth v. St. Louis Bridge Co., 123 111. 546, 549, 5 Am. St. Rep. 552,
565, 17 N. E. 443, 444, holding it is the main^^— permanent — driver which con-
stitutes the boundary; Flynn v. Boston, 153 Mass. 373, 26 N. E. 868, holding
line between the cities to be the middle of the channel ; Fletcher v. Thunder
Bay etc. Boom Co., 51 Mich. 284, 16 N. W. 649, holding adjoining owner
has right to land between middle of channel and shore ; Claremont y . Carl-
ton, 2 N. H. 372, 9 Am. Dec. 90, holding island lying nearest the bank where
premises are situated passes by the deed; Starr v. Child, 20 Wend. 153,
holding under conveyance ^Ho and along shore,'' grantee takes ad filum
aquae; Ingram v. Threadgill, 3 Dev. 61, holding owners of bank have
a several fishery to the middle of the stream; Spears v. State, 8 Tex. App.
470, holding jurisdiction of Texas extends to the middle of the river;
Ex parte McNeeley, 36 W. Ya. 86, 82 Am. St. Rep. 832, 15 L. R. A. 227,
14 S. E. 436, applying the rule in determining place where blow was struck.
Where State, as orl^al proprietor of lands on both sides of river, grants
territory on one side, it retains river, and newly created State extends to river
only.
Approved in Peoria v. Central Nat. Bank, 224 111. 57, 79 N. E, 300, water's
edge and not surveyed meander line is shore line from which lines should
be drawn to show water and accretion rights of adjacent riparian pro-
prietors; State Board of Health v. City of Greenville, 86 Ohio St. 37, Ann.
Gas. 1913D, 52, 98 N. E. 1026, where disposal of sewage in Ohio River was
involved; State v. Faudre, 54 W. Va. 124, 136, 102 Am. St Rep. 927, 63
L. R. A. 877, 46 S. E. 270, 274, West Virginia cannot punish one acting
under Ohio ferry franchise for charging one coming from Ohio more than
is allowed by West Virginia law for ferriage over Ohio River; dissenting
opinion in Hopkins v. Hebard, 194 Fed. 316, 114 C. C; A. 261, arguendo;
Howard v. Ingersoll, 13 How. 412, 424, 425, 14 L. Ed. 202, 208, holding
jurisdiction of Georgia extends to the opposite bank of the river; as also
in Alabama v. Georgia, 23 How. 514, 16 L. Ed. 560, ruling similarly ; Indiana
V. Kentucky, 136 U. S. 503, 505, 507, 34 L. Ed. 330, 331, 832, 10 Sup. Ct.
1051, 1052, 1053, holding dominion of State after its admission to the
Union continues unaffected by action of the forces of nature; Henderson
B. Co. V. Henderson City, 173 U. S. 612, 613, 48 L. Ed. 830, holding city
of Henderson could tax so much of the bridge as was between low-water
mark on the Kentucky shore and low-water mark on the Indiana shore,
since the boundary of Kentucky extends to low-water mark on Indiana
shore; Corfield v. Coryell, 4 Wash. C. C. 384, Fed. Cas. 3230, holding claim
of New Jersey to . parts below low-water mark cannot be maintained ;
Aitcheson v. The Endless Chain Dredger, 40 Fed. 256, holding concurrent
jurisdiction of States extends over the whole of a dividing river; In re
Mattson, 69 Fed. 537, holding one State cannot regulate dividing river
1—67
6 Wheat. 374-385 NOTES ON U. S. REPORTS. 1058
unless the other acquiesces; Pea Patch Island, 30 Fed. Cas. 1147, 114S,
holding territory of Delaware extends to low-water mark on the Jersey
shore; Boardman v. Scott, 102 Ga. 420, 30 S. E. 988, where deed conveyed
land bounded by an artificial pond, grant extended to low-water mark at
time of deed ; Howard v. IngersoU, 17 Ala. 790, 791, holding grant to shore
of river conveys to the water's edge; Emery v. CoUings, 1 Harr. (Del.)
329, note, considering the jurisdiction of State over bay and river; Stinson
V. Butler, 4 Blackf. (Ind.) 285, holding owner's rights on Indiana side
extends only to low-water mark; as also in Cowden v. Kerr, 6 Blackf. (Ind.)
280; Gentile v. State, 29 Ind. 411, holding exception of Ohio River in act
regulating fishing, is not local l^slation, since it is without the State;
Carlisle v. State, 32 Ind. 56, holding county along Ohio is bounded by low-
water mark; Brophy v. Richeson, 137 Ind. 121, 36 N. E. 426, holding where
description was ''to low-water mark" the bed of the lake was excluded;
Flemming v. Kenney, 4 J. J. Marsh. 158, holding where vendor owned both
sides of a creek and gave his bond for land ''to begin on bank," stream
below low-water mark is excluded ; McFall v. Commonwealth, 2 Met. (Ky.)
396, holding jurisdiction of Kentucky extends to low-water mark on Ohio
side; Louisville Bridge Co. v. Louisville, 81 Ky. 196, holding Kentucky
has jurisdiction over all the soil to low-water mark; Lincoln v. Wilder, 29
Me. 179, holding term ''bounded by shore," excludes the use of river;
Wood V. Kelley, 30 Me. 55, holding in conveyance of land bounded by pond,
title extends to low-water mark; Binney's Case, 2 Bland Ch. 127, holding
the Pptomac belongs entirely to Maryland, above tide; State v. Babcock,
30 N. J. L. 33, holding exclusive jurisdiction over Hudson River is in the
State of New York ; Gk>ugh v. Bell, 22 N. J. L. 489, holding owner of lands
in New Jersey along shore of tide waters may extend wharf to low-water
mark; Halsey v. McCormick, 13 N. Y. 299, holding "to the bank of a creek"
includes land to low water ; McCullock v. Aten, 2 Ohio,r 310, holding where
deed reads from comer on bank, "thence down said creek," boundary is
low-water mark ; Benner v. Platter, 6 Ohio, 508, holding a call in a survey,
for a stream not navigable, the boundary is the middle of the stream;
Booth V. Hubbard, 8 Ohio St. 246, holding territorial limits of Ohio extend
on the southwest to low-water mark; Commonwealth v. Gamer, 3 Gratt.
664, 684, 694, 701, 712, 717, 726, 731, 732, 742, 754, where sovereign State
grants territory on other side of river, query, whether grant is bounded by
top of bank, or low-water mark; State v. Plants, 25 W. Va. 122, 124, 126,
52 Am. Rep. 212, 214, 215, holding the jurisdiction of West Virginia is
coextensive with the water of the Ohio while confined in its banks; Bridge
Co. V. Pt. Pleasant, 32 W. Va. 331, 9 S. E. 232, holding a town may extend
its limits to include railroad bridge across the Ohio; J. T. Keator Lumber
Co. V. Boom Corp., 72 Wis. 91, 7 Am. St. Rep. 855, 38 N. W. 540, holding
States have concurrent jurisdiction of boundary river; St. Clair v. Loing-
ston, 23 Wall, 63, 16 Am. Rep. 525, 23 L. Ed. 62, Hagan v.' Campbell, '8 Port.
24, 33 Am. Dec. 270, Sherlock v. Ailing, 44 Ind. 190, Boston v. Richardson,
13 Allen, 157, Rhode Island v. Massachusetts, 12 Pet 727, 733, 749, 9 L. Ed.
1262, 1264, 1270, arguendo.
1069 HANDLEY v. ANTHONY. 5 Wheat. 374-386
Distinguished in St. Joseph etc. R. R. Co. v. Devereux, 41 Fed. 17, hold-
ing where government designates river as a boundary, the center is the
line; Memphis etc. Packet Co. v. Pikey, 142 Ind. 308, 309, 40 N. E. 529,
holding that by virtue of compact, Indiana has concurrent jurisdiction with
Kentucky on the Ohio River; McManus v. Carmichael, 3 Iowa, 36, 50, 61,
discussing rights of riparian owners.
Concurrent jurisdiction of States over waters forming State bound-
aries. Note, 16 Aim. Gas. 1116.
_ •
Jurisdiction over boundary rivers. Note, 66 L. B. A. 956, 957.
Rivers and lakes as State boundaries. Note, 15 L. B. A. 188.
In case of doubt, eTery country tying upon a river is presumed to have
no otlier limits but the river Itself.
Cited in French v. Bankhead, 11 Gratt. 159, 165, holding when officers
of United States elect high- water mark as the boundary, and surveyor
adopted it, and deed conveyed to it, the land passes to that boundary.
Oradual accretion of land belongs to party owning shore. n
Approved in Shively v. Bowlby, 152 U. S. 36, S8 L. Ed. 344, 14 Sup. Ct.
561, holding new States have the same rights to accretion as the original
States; Berry v. -Snyder, 3 Bush, 280, 96 Am. Dee. 228, holding accretion
in non-navigable streams belongs to the adjoining owners.
Distinguished in Fulton v. Frandolig, 63 Tex. 332, where there had been
an actual survey, and accretion was formed on reef without the survey.
Wbere a State owns to a river, it is deemed to own to low-water mark.
Approved in Ware v. Hager, 126 Ky. 326, 103 S. W. 283, holding State of
Kentucky extends to low- water mark on Ohio River; Meyhr v. Wedding
etc., 107 Ky. 314, 696, 699, 92 Am. St. Rep. 348, 63 S. W. 809, 60 S. W. 22,
24, 25, holding under section 11 of Virginia compact (13 Hen. I^tats. Va.,
p. 19), relating to jurisdiction of Ohio River, Kentucky will not rec<)gniz6
Indiana judgment, rendered on process served outside of low-water mark
on Ohio River.
\
Understanding of people of vicinage considered in aid of construction of
compact.
Approved in Strother v. Lucas, 12 Pet. 437, 9 L. Ed. 1147, holding term
"laws" in a treaty includes settled customs and usages; Pollard v. Kibbe^
14 Pet. 413, 10 L. Ed. 519, holding terms "new grant, etc.," refers to grants
made by local authorities of Spain after the acquisition of Louisiana by the
United States, and may be confirmed by Congress; Middleton v. Pritchard,
3 Scam. 521, 88 Am. Dec. 116, as an instance of where rules of common law
were applied to interpretation of grants. •
Miscellaneous. Cited in Waring v. Clarke, 5 How. 481, 12 L. Ed. 246,
and United States v. New Bedford Bridge, 1 Wood. & M. 483, Fed. Cas.
15,867, as to admiralty jurisdiction of crimes; Kennedy v. Elliott, 85 Fed.
835, as instance where Supreme Court adjudicated adverse claims of indi-
5 Wheat. 385-393 NOTES ON U. S. REPORTS. 1060
viduals to real estate, where boundary liae between States had to be ascer-
tained in order to determine rights of litigants.
5 Wheat. 38&-893, 6 L. Ed. 115, LA AMISTAD DE BTJES.
Probable profits of voyage are not fit rule for ascertainment of damages
In cases of marine torts.
Approved in Winston Cigarette Machine Co. v. Wells- Whitehead Tobacco
Co., 141 N. C. 295, 8 L. R. A. (N. S.) 255, 53 S. E. 889, holding breach of
contract to show machine at fair could not give rise to action for future
profits from sale of machine ; Choctaw etc. R. R. Co. v. Jacobs, 15 Okl. 500,
82 Pac. 504, determining damages for delay in delivery of freight; Tootle
v. Kent, 12 Okl. 691, 73 Pac. 315, allowing recovery of probable profits to
merchant whose store closed as result of fraudulent chattel mortgage;
Howard v. Stillwell, 139 U. S. 206, 35 L. Ed. 150, 11 Sup. Ct. 503, holding
anticipated profits cannot be recovered for delay in putting up a mill ; Cin-
cinnati Gas Co. V. Western Siemens Co., 152 U. S. 200, 38 L. Ed. 413, 14
Sup. Ct. 525, refusing to allow for profits which would have been received
if a sale had been made; Pacific Ins. Co. v. Conrad, 1 Bald. 144, Fed. Cas.
10,647, allowing only value of goods with interest; The Alice, 12 Fed. 502,
holding measure of damages for nondelivery of cargo is its value at place
of shipment and not at place of destination ; McDaniel v. €rabtree, 21 Ark.
436, refusing to allow for prospective profits; McAlpin v. Lee, 12 Conn. 133,
30 Am. Dec. 610, allowing as damages difference between price agreed upon
and value of property sold; The Western Gravel Road Co. v. Cox, 39 Ind.
264, refusing to allow for tolls in action for failure to complete road in
time ; dissenting opinion in Bouldin v. Alexander, 7 T. B. Mon. 430, majority
holding remedy for property seized under an execution against another is
in law ; Blanchard v. Ely, 21 Wend. 350, 34 Am. Dec. 256, holding in action
for price of steamboat, defendant may not set off loss of profits ; Cincinnati
v. Evans, 5 Ohio St. 604, refusing to allow damages for profits, but allow-
ing reht; Livingston v. Exum, 19 S. C. 228, refusing to allow for profits
occasioned by another party being enjoined.
Distinguished in Hagan v. Nashville Trust Co., 124 Tenn. 99, 136 S. W.
994, holding where suit is delayed on breach of contract and evidence is
obtainable to show profits after breach, these profits, though future at
time of breach, must be allowed; Chisholm etc. Mfg. Co. v. U. S. Canopy
Co., Ill Tenn. 210, 77 S. W. 1064, allowing lost .profits as damages for
breach of contract to manufacture and deliver patented article; Illinois
Central R. R. Co. v. Davidson, 76 Fed. 522, 46 U. S. App. 300, admitting?
evidence of plaintiff's earnings in past years to show amount of damages;
Griffin v. Colver, 16 N. Y. 492, 69 Am. Dec. 720, holding for breach of con-
tract to deliver engine by certain day ordinary hire can be recovered.
Lost profits from tort as damages. Note, 52 L. B. A. 61.
If prize captured in neutral waters, courts of neutral can only restore her
with expense during pendency of suit, And cannot give vindlctiye damages.
Cited in The Florida, 101 U. S. 42, 25 L. Ed. 899, dismissing libel by
captain of captor against rebel steamer captured in Bahia, our government
1061 NOTES ON U. S. REPORTS. 5 Wheat. 394-420
having disavowed the act of capture; Hopner v. Appleby, 5 Mason, 76,
Fed. Gas. 6699, holding court had no right to control captors in their sale
of prize.
Miscellaneous. Cited in United States v. Cement, 27 Fed. Cas. 297,
api)^u«ntly not in point.
5 Wheat. 394-411, 6 L. Ed. 117, LYUEB v. BODOEBS.
It is good objection to award against one personally and in representatiye
character, that it fails to state separately amounts due on each account.
Approved in Braxton v. Harrison, 11 Gratt. 55, holding an executor may
make a valid promise to pay a debt out of the estate.
If part of award void for uncertainty is so connected with the rest as to
affect Justice of case, whole is void.
Approved in York etc. R. R- Co. v. Myers, 18 How. 252^ 15 L. Ed. 38S,
holding if arbitrator includes matter not submitted in a single conclusion,
the award is bad ; Marks v. Railroad Co., 76 Fed. 946, 44 U. S. App. 714,
where umpire made a subsequent award without notice, the whole award
was declared void; Woodward v. Atwater, 3 Iowa, 63, holding unless sub-
mission and award show the subject matter sufficient to constitute a bar,
they will be set aside ; Binney 's Case, 2 Bland Ch. 108, holding the making
of a substantial amendment dissolves an injunction; Whitcher v. Whitcher,
49 N. H. 183, 6 Am. Rep. 494, holding award void in toto; Hoffman v. Hoff-
man, 26 N. J. L. 180, declaring award void where it did not show whethei
claim was submitted by party in his own right or in a representative char-
acter; Wheatley v. Martin, 6 Leigh (Va.), 71, holding administrator is
bound though there was no new submission after party's death; Pettibone
V. Perkins, 6 Wis. 589, holding an award must embrace the whole subject
matter submitted.
Distinguished in Karthaus y. Ferrer, 1 Pet. 229, 7 L. Ed. 124, where the
person being a partner would have to pay, since he had no authority to
bind partners; Martin v. Martin, 12 Leigh (Va.), 505, holding court may
reject excess, and render judgment on so much of the award as is within
the submission.
Necessity that arbitrators determine all matters submitted to arbitra-
tion. Note, Ann. Gas. 1916A, 347.
In absence of statutory prohibition or other disqualification, right to sub-
mit to arbitration as broad as right to sue or be sued.
Approved in Bailey v. District of Columbia, 9 App. D. C. 368, holding
whether parties have agreed to arbitration, in absence of special agree-
ment, is question of fact.
6 Wheat. 412-420, 6 L. Ed. 122, UNITED STATES v. HOIJMES.
Federal courts under act of 1790 have jurisdiction of murder or robbery
committed on high seas on vessel held by pirates.
Approved in United States v. Kessler, 1 Bald. 28, 29, Fed. Caa. 15,528,
holding our courts have no jurisdiction of crime on French vessel on high
5 Wheat. 420-424 NOTES ON U. S. REPORTS. 1062
seas; United States v. Davis, 2 Sumn. 485, Fed. Cas. 14,932, holding our
courts were without jurisdiction when native was killed on his ship by shot
fired from ours; The Ambrose Light, 26 Fed. 416, defining piracy; People
V. Tyler, 7 Mich. 214, 74 Am. Dec. 709, holding when private ship enters a
foreign jurisdiction, it becomes subject to its laws; Smith v. United States,
1 Wash. Ter. 274, holding it is no less a crime to murder a foreigner than
a citizen within jurisdiction of United States.
In criminal prosecntlon defendant Is pro hac vice percDn considered aa
belonging to nation mider whose flag he sails.
Approved in Rainey v. New York & P. S. S. Co., 216 Fed. 456, L. R. A.
1916A, 1165, 132 C. 0. A. 509, holding American citizen shipping on board
British vessel is amenable to and under protection of laws of England;
In re Ross, 140 Ur S. 476, 36 L. Ed. 690, 11 Sup. Ct. 904, holding foreigner
entering mercantile marine of a nation becomes subject to its laws.
Miscellaneous. Cited in Forsyth v. United States, 9 How. 572, 13 L. Ed.
263, as an instance of certificate of division to Supreme Court of question
of law in criminal cases ; Andersen v. United States, 170 U. S. 496, 42 L. Ed.
1118, 18 Sup. Ct. 692, but to no point decided.
5 Wheat. 420-424, 5 L. Ed. 124, OWZNGS v. 8PEED.
State statute enacted before Oonstltatlon went into openitlQii and affecting
previously vested rights is valid.
Approved in Scott v. Jones, 5 How. 377, 379, 12 L. Ed. 197, 198, holding
Supreme Court has no jurisdiction to test validity of statute passed by
public body not admitted into the Union; dissenting opinion in McElvain
V. Mudd, 44 Ala. 65, majority holding ordinance avoiding contracts for sale
of slaves unconstitutional; Shorter v. Cobb, 39 Ga. 298, holding courts of
Ckorgia have no authority to enforce a debt whose consideration was slaves ;
Blanque's Syndic v. Beale, X Mart. (La.) (N. S.) 429, holding law in force
at change of government, on subject of cessio bonorum, is constitutional;
Opinion of the Justices, 66 N. H. 643, 33 Atl. 1083, holding State legis-
lature could confiscate no private property without remuneration; Common-
wealth V. Collins, 8 Watts, 339, 350, holding after the adoption of State
Constitution, Governor could not appoint judge, without consent of Senate ;
Cocke V. Calkin, 1 Tex. 551, holding before Statehood the laws of Texas
were in force to the exclusion of laws and Constitution of the United
States; Campbell's Case, 2 Bland Ch. 229, 233, 237, 20 Am. Dec S70, 374,
378, Wniow R, Club v. Wade, 100 Wis. 86, 42 L. B. A. 313, 76 N. W. 274,
arguendo.
Witness having no Interest in pending suit may testify.
Approved in Bork v. Norton, 2 McLean, 425, Fed. Cas. 1659, holding wit-
ness must be interested in the event of the suit to be disqualified; Stewart
V. Conner, 9 Ala. 821, holding it must appear that the witness will gain
or lose by the effect of the judgment.
2U
T*i^ OWINGS V. SPEED. ^ Wheat. 420-424
'^^ ^cif ?***es V. New Bedford Bridge, 1 Wood. & M. 430, Fed.
%, ^^ ^ exelusrve power of Congress.
o % rr^ ^^(atlon established fo^ pablic purposes are evldenoe of Its
^ of Paxton V. Bogardus, 201 111. 635, 66 N. E. 866, hold-
-g
/9
% ^ 3 'f confirmation of taxes for street improvements, rec-
^ ^ ''^ ' ' ^ evidence of its proceedings ; Trainor v. Lee, 34 R. I.
^ ^-^ records of municipal corporation best evidence and
^ % it^ evidence; Chesapeake etc. Ry. Co. v. Deepwater
" ^ ^ '^^ "^7, 50 S. E. 909, determining extent of admissi-
% mmm^ ^ of private corporation in its favor in contro-
^ ^^ V ^^^ ; Wamei!^v. Daniels, 1 Wood. & M. 106, Fed.
^ ^^ H*^ 'he organization is the best evidence of that
0 ^"^ "yi , 7 Ga. 198, 50 Am. Dec. 398, holding de-
» \ ^^^ '^ of bank may show particular items are
\ ^^"^ ^' -* % (Ind.) 76, holding original minutes of
*^ r^:^ "S ?• ' ^^ acceptance of act incorporating a
\ '23, holding books of corporation are
^ of statute have been eomplied with,
; Dudley v. Grayson, 6 T. B. Mon.
^ of town, proved to be correctly
-«. in controversies about titles; CpfSn v. Col-
.viiiig where records of corporation are obtainable, parol
*^ Admissible to prove the acceptance of charter, or to show mem-
x^hrg-^ Barker v. Fogg, 34 Me. 394, admitting public records to show
f^ ^\ivOTi or alteration of a street; Penobscot A K. R. R. Co. v. Dunn, 39
^^^!^^ &d6, lnolding records are prima facie evidence that required number
^^^f shares have been taken; dissenting opinion in Amherst Bank v. Root,
<^^ Met. 544, majority holdii^ record may be modified by parol evidence;
^^>£mith v. Natchez Steamboat Co., 1 How. (Miss.) 491, 492, holding books
of a corporation are evidence as between the members, when proved to be
its hooks ; Haven v. The N. H. Asylum, 13 N. H. 535, 38 Ant. Dec. 513, hold-
ing p&^^^ evidence of vote in records of corporation inadmissible; Haynes
y. Brown, 36 N. H. 567, holding books must have been kept by the proper
officers; North River Meadow Co. v. Shrewsbury Church, 22 N. J. L. 428,
53 Am* Dec. 261, holding books of corporation admissible as evidence of its
acts; State v. Van Winkle, 25 N. J. L. 76, holding minutes of trustees not
conclusive evidence of their acts ; Denning v. Roome, 6 Wend. 656, holding
^jiginal minutes are competent evidence of the acts of a corporation with-
out further proof of their verity; People v. Zeyst, 23 N. Y. 143, declaring
minutes of a town meeting are conclusive; Power v. Athens, 99 N. Y, 602,
2 N. E. 612, holding books of corporation are best evidence to show corpo-
rate acts ; Glenn v. Orr, 96 N. C. 415, 416, 2 S. E. 539, holding records of
a corporation are prima facie evidence of its existence; Grays v. Turnpike
Co., 4 Rand. 580, holding books of a corporation are proper evidence of
its existence; Vanderwerken v. Glenn, 85 Va. 14, 6 S. E. 809, admitting
5 Wheat. 424-428 NOTES ON U. S. REPORTS, 1064
books of corporation to show defendant's membership; Grafton v. Reed,
34 W. Ya. 181, 12 S. E. 769, holding authenticated records of a manicipal
corporation admissible as evidence; Rollins v. Board of Commissioners, 90
Fed. 581, admitting entries in records of a county made by clerk in course
of official duty.
Conclusiveness of the records of town meetings and other corporation
or corporations, and the power to amend the same. Note, 13 Am.
St. Rep. 550.
Parol evidence of unrecorded acts of corporation. Note, 74 Am. Dec.
310.
Miscellaneous. Cited in Willow River Club v. Wade, 100 Wis. 94, 76
N. W. 274, holding owner of both banks of navigable stream has not exclu-
sive right to fish opposite his land.*
5 Wheat. 424-428, 5 L. Ed. 125, OONNEOTIOUT ▼. PEKN8YI.VANIA
In appeals from Oircuit Oonrt in chancery cases, tke parol testimony m%
trial in court below ought to appear in the record.
Approved in Southern Building ft Loan Assn. ▼. Carey, 117 Fed. 335,
holding that while rejected pleadings or papers cannot be brought to appel-
late court by bill of exceptions, the trial court may order them to be cer-
tified to appellate court; In re De Gbttardi, 114 Fed. 342, holding under
bankruptcy act 1898, that referee must take down all testimony, objec-
tions, and exceptions, and court upon review must determine issues de novo
upon the record; New Orleans v. United States, 5 Pet. 450, 8 L. Ed. 188,
and Blease v. Garlington, 92 U. S. 4, 7, 23 L. Ed. 522, 523, following rule ;
Appleton V. Econbert, 45 Fed. 282, holding it is the rule to allow exceptions
to be noted so they may go on the record in case of appeal; Harris v. Cole,
2 Fla. 401, holding an appeal is the only proper method to bring up a
decree of chancery for revision; Bennett v. Welch, 15 Ind. 333, declaring
it error to admit oral evidence against infant in appeal of chancery cause.
See, also, note to Gallion v. McCaslin, 1 Blackf . 94, as to removal of equity
cases to Supreme Court.
Distinguished in New England Phon. Co. v. National Phon. Co., 148 Fed.
324, witness whose testimony is being taken orally before examiner under
equity rule 67 cannot refuse to answer question because it is immaterial.
Mode of preserving for review oral evidence in equity case. Note,
Ann. Cas. 1913A, 529.
Judiciary act directs that the mode of proof in equity shall he by oral
testimony.
Cited in Bronson v. La Crosse & M. R. Co., 4 Fed. Cas. 224, holding pro-
vision of Constitution of Wisconsin that testimony in equity cases shall be
taken in the same manner as at law prevents the application of judiciary
act provision to Federal courts in that State; White v. Toledo ete, R. R.
Co., 79 Fed. 134, 51 U. S. App. 56, holding, under equity rule 67, a Circuit
lOeS _ NOTES ON U. S. REPORTS. 5 Wheat. 429-435
Court has power to appoint special examiner to take testimony of a witness
in another circuity to foe used in the snit.
Final decree or an Interlocutory one, deciding merits, cannot be pronounced
untU all^partiei to liill and in interest are before couxf .
Approved in Lynch v. United States, 13 Okl. 158, 73 Pac. 1100, applying
rule in suit to cancel town site patent; Moore v. Jennings, 47 W. Va. 190,
34 S. E. 797, holding in action by lessors and lessees of tract of land against
lessees of adjoining tract for trespass, all owners of both tracts are neces-
sary parties to suit.
Distinguished in Wilson v. Castro, 31 Cal. 427, holding this rule will not
be enforced, where its observance would be attended with great inconveni-
ence and answers no substantially beneficial purpose.
Dismissal by court of equity, where party asking aid refuses to comply
witb its conditions, is not bar.
Approved in Badger y. Badger, 1 Cliff. 244, Fed. Cas. 717, holding bill
dismissed without any hearing or objection is no bar to subsequent suit.
6 Wheat. 429-433, 5 L. Ed. 126, OAMTBEIJ. y. PRATT.
Oo-obllgor discharging debt acquires interest of the others in mortgage.
Cited in Dowdy v. Blake, 50 Ark. 211, 7 Am. St. Rep. 90, 6 S. W. 898,
holding joint party paying note is subrogated to security of creditors.
Attachment upon an equity of redemption is yalid.
Cited in Coombs y. Jordan, 3 Bland Ch. 319, 22 Am. Dec. 267, holding an
equitable interest in land may be taken on execution.
6 Wheat. 433, 5 L. Ed. 127, THE ATALAMTA.
Not cited.
6 Wheat. 434-436, 5 L. Ed. 127, UiaTED STATES y. LANOASTiEB.
District judge cannot divide in opinion with circuit judge on appeal from
his own decision so as to give Supreme Court Jurisdiction.
Approved in United States v. Emholt, 105 U. S. 415, 26 L. Ed. 1078, fol-
lowing rule; American Construction Co. v. Jacksonville Ry. Co., 148 U. S.
387, 37 L. Ed. 492, 13 Sup. Ct. 764, granting a rule to show cause why decree
of Circuit Court of Appeals should not be quashed where a circuit judge
took part in decree setting aside his own order; In re Kaine, 14 Fed. Cas.
86, defining power of district judge in Circuit Court.
Distinguished in Harmon v. United States, 43 Fed. 820, holding district
judge, when holding Circuit Court in another district, could, by consent of
parties, determine writ of error from District Court.
Miscellaneous. Cited in Bruguier v. United States, 1 Dak. Ter. 7; 46
N. W. 502, not in point.
5 Wheat. APPENDIX, 16, 17, 5 L. Ed. 133.
Judicial controversy is one which has taken diape for Judicial decision.
Cited in dissenting opinion in Florida v. Georgia, 17 How. 515, 15 L. Ed.
192; Connor v. Scott, 4 Dill. 246, Fed. Cas. 3119.
5 Wheat. App. l9 NOTES ON U. 8. REPORTS.
1066
6 Wheat. APPENDIX, 10, 5 Ii. Ed. 184.
FunctionB of executtve and Judicial departmantB dlflcassad.
Cited in In re Metzger, 17 Fed. Cas. 233, holding extradition of a fugi-
tive from justice of foreign country can only be effectuated through the
judiciary.
/
/
NOTES
ONTHl
UNITED STATES REPORTS.
VI WHEATON.
6 Wheat. 1-101, 5 L. Ed. 191, THE AMiABTiB IKABBTJJ
Sebrare bj ncnl>ininiiwitaned pxi^mteer, if decreed good prise, pawei the
property to the goTemment.
Cited in Carrington v. Insurance Co., 8 Pet 522, 8 L. Ed« 1031, holding
that a noneonunissioned eroiser may seize for the benefit of the govern-
ment ; The Tropic Wind, Blatchf . Pr. 65, Fed. Cas. 14,186, holding any per-
son may take possession of property seisable as a prize; The Ouachita,
Blatchf. Pr. 309, Fed. Cas. 10,620, holding if vessel arrested as prize was
violating law, she is liable to condemnation, though party making seizure
was without authority.
Form of passport never having been annexed to treaty of 1705 with Spain,
that part of treaty purporting to give eifect to passports is inoperative.
Cited in The Springbok, Blatchf. Pr. 457, Fed. Cas. 13,264, holding
absence of invoices from on board vessel in time of war casts suspicion on
honesty of her commerce; The Peterhoff, Blatchf. Pr. 539, Fed. Cas. 11,024,
where there were no invoices for contraband articles; United States v.
Packages, 27 Fed. Cas. 286, holding use .of fraudulent invoices to procure
permit shows fraudulent intent; United States v. Amistad, 15 Pet. 595, 10
L. Ed. 854, arguendo.
Oonstmction of treaty should be according to the intention of the parties;
courts cannot interpolate terms.
Approved in United States v. Choctaw etc. Nations, 179 U. S. 533, 46
L. Ed. 306, 21 Sup. Ct. 164, holding court cannot depart from ordinary
signification of words of treaty with Choctaw and Chickasaw nations be-
cause it was less liberal than other treaties ; Ex parte McCabe, 46 Fed. 373,
12 L. R. <A. 596, refusing extradition under Mexican treaty.
Onus proband! of a neutral interest is on claimant.
Approved in The Benito Estenger, 176 U. S. 581, 44 L. Ed. 597, 20 Sup.
Ct. 493, following rule ; The Adula, 176 U. S. 381, 44 L. Ed. 514, 20 Sup. Ct.
440, holding in prize court permission to take further testimony will be
(1067)
6 Wheat. 102-103 NOTES ON U. S. REPORTS. 1068
denied when result cannot be changed ; United States v. The Wren, 28 Fed.
Gas. 788, denying restitution where claimant failed to establish neutrality
of the vessel; The Adula, 89 Fed. 353, condemning neutral vessel chartered
to enemy.
Distinguished in Gushing v. Laird, 107 U. S. 79, 27 L. Ed. 395, 2 Sup. Ct.
204, holding final decree in prize cause merely determines the question of
prize or no prize.
Evidence to acquit or condemn must flnt come from the ship's papers and
examination of captured persons.
Gited in United States v. Areola, 24 Fed. Gas. 850, determining citizen-
ship of owner of captured vessel; The Adula, 89 Fed. 353, condemning
neutral vessel chartered to ettemy.
Miscellaneous. Gited in The Glinton Bridge, Woolw. 156, Fed. Gas. 2900,
apparently to no point decided by main case ; Daggett v. Willey, 6 Fla. 506,
evidently an error;. Lewis v. State, 4 Ohio, 397, not in point*
6 Wbeat. 102-103, 6 L. Bd. 215, BTTSSABB y. LEVEBINX}.
Notice of nonpayment of hill can he given by mall.
Gited in Shed v. Brett, 1 Pick. 409, II Am. Dec. 313, holding putting^
notice in postoffice is sufficient where indorser lives in another town; Globe
Printing Go. v. Stahl, 23 Mo. App. 456, admitting evidence of answer re-
ceived by telephone; Insurance Go. v. Wilson, 29 W. Va. 557, 2 S. E. 903,
where indorser lives in another place, notice must be sent by first mail after
day of dishonor; Brewster v. Arnold, 1 Wis. 282, holding notice of dishonor
sent by mail sufficient.
Distinguished in Provident Sav. L. A. S. v. Nixon, 78 Fed. 148, 44 U. S.
App. 316, considering whether "mailed"* implies prepayment of postage;
Todd v. Neal, 49 Ala. 274, if notice is sent through any but United States
mails, it must be affirmatively shown to have been received.
If third day of day of grace falls on Sunday, bill is due on Saturday.
Approved in Doremus v. Burton, 5 Biss. 58, Fed. Gas. 4002, following
rule; Wood v. Corl, 4 Met. 205, holding legal presumption is that three
days' grace is allowed in every State ; Guyler v. Stevens, 4 Wend. 5p7,
where holder was excused from giving notice of nonpayment to indorser
on Fourth of July.
Day for payment falling on Sunday. Note, S B. B. 0. 684, 685.
Notice of nonpayment given on last day of grace will charge drawer.
Approved in McFarland v. Pico, 8 Gal. 634, holding notice may be given,
immediately after refusal to pay; Staples v. Franklin Bank, 1 Met. 55, 35
Am. Dec. 353, holding maker of promissory note may be sued on last day
of grace if he refuses to pay; Manchester Bank v. Fellows, 28 N. H. 310,
deciding that holder of promissory note may forward notice on day of
dishonor.
Distinguished in Dennie v. Walker, 7 N. H. 201, holding notice of non-
payment given prior to demand is void.
1069 * NOTES ON U. S. REPORTS. 6 Wheat. 104-109
6 Wheat. 104-106, 6 Ll Ed. 216, UNDENBEBOEB v. BEALL.
Notice given after demand on third day of grace Is Buffldent.
Approved in Beeding v. Pic, 2 Cr. C. C. 162, Fed. Cas. 1227, holding de-
mand of payment after last day of grace is too late; McFarland v. Pico,
8 Cal. 634, holding notice may be given immediately after refusal to pay;
Wood V. Corl, 4 Met. 205, holding legal presumption is that three days'
grace is allowed in every State; Carter v. Burley, 9 N. H. 571, holding
holder may forward notice on day of dishonor ; Remington v. Harrington, 8
Ohio, 511, holding there should be positive proof of certain facts, from
which notice might be reasonably inferred.
Distinguished in Depnie v. Walker, 7 N. H. 201, holding notice of non-
payment prior to demand is void.
Evidence of letter containing notice having been put In poftofflce, directed
to the Indorser at his place of residence. Is secondary evidence of notice ta
Indorser, admissible without previously notifying defendant to produce letter.
Approved in Nelson v. Grondahl, 13 N. D. 368, 100 N. W. 1095, notary's
testimony that he invariably presented notes for payment at place where
they were made payable is admissible to establish place of presentment,
where certificate of protest fails to show place and notary has no specific
recollection of presentment; Dickens v. Beal, 10 Pet. 580, 9 L. Ed. 641,
holding testimony by a notary that he send notice is admissible without
producing a copy of the notice; Henderson v. Carbondale Coal Co., 140
U. S. 36, 35 L. Ed. S37, 11 Sup. Ct. 695, holding presumption that a letter^
mailed reaches its destination is one of fact; Brooks v. Blaney, 62 Me. 458,
allowing notary to testify to contents of notice, though no notice has been
given indorser to produce such notice at trial; Shed v. Brett, 1 Pick. 409,
11 Am. Dec. 213, holding putting notice in postoffice is sufficient where
indorser lives in another town; Pierce v. Pendar, 5 Met. 356, where both
indorser and holder reside in place where note is dishonored, notice must
be given personally; Offit v. Vick, Walk. (Miss.) 102, holding notice of pro-
test may be proved without producing ^the written notice; Ellis v. Bank,
7 How. (Miss.) 299, if holder places notice in proper postoffice in due time,
he is not responsible for irregularities of the mail; Globe Printing Co. v.
Stahl, 23 Mo. App. 456, admitting evidence of answer received by tele-
phone ; Faribault v. Ely, 2 Dev. 69, 72, holding contents of letter giving in-
dorser notice may be proved by parol without notice to produce the original ;
Arnold v^ Brewster, 1 Wis. 282, holding notice of dishonor sent by mail
sufficient.
Distinguished in Prov. S. L. A. S. v. Nixon, 73 Fed. 148, 44 U. S. App.
316, considering whether "mailed" implies prepayment of postage.
6 Wheat. 106-109, 6 L. Ed. 217, IdECHANICS' BANK OF AUSXANBBIA y»
WITHERS.
Circuit Court of District of Columbia may adjourn to distant day, and
adjourned session is considered as same term.
Approved in In re Dossett, 2 Okl. 381, 382, 37 Pac. 1070, 1071, District
Court may hold adjourned sessions after commencement of regular term
6 Wheat. 109-n8 NOTES ON U. S. REPORTS. 1070
at time not designated in order of Supreme Court fijdng time when terms
of said court shall begin; Denham v. Robinson, 72 W. Va. 254, AnxL Cas.
1915D, 997, 45 L. R. A, (N^S.) 1129, 77 S. E. 974, adjourned term of crim-
inal court is continuance, not new term, and indicted person not entitled
to discharge because three terms had elapsed without trial ; Mann v. CounCy
Court, 58 W. Va. 658, 52 S. E. 778, construing Code 1899, c. 144, § 2,
authorizing Circuit Court and County Courts to adjourn from day to day
till business concluded or until end of term; Gonzales v. Cunningham, 16^
U. S. 627, 41 L. Ed. 577, 17 Sup. Ct. 188, holding judge may continue special
term to .a day beyond that fixed for the regular term; Ex parte Casey, 18
Fed. 87, holding court can modify its judgment on an adjourned day of the
same term ; Florida v. Charlotte H. P. Co., 70 Fed. 885, 30 U. S. App. >535,
holding term of Circuit Court may be adjourned to a distant day and this is
one term, though another term of the court has been held at another place
during adjournment ; Williams v. Moseley, 2 Fla. 332, holding court may be
adjourned beyond the term in another eounty; dissenting opinion in Conk-
ling V. Ridgeley, 112 111. 47, majority holding where court adjourned for
thirty-two days, the intervening period is a vacation; Smurr v. State, 105
Ind. 128, 4 N. E. 447, where court had statutory authority to appoint
adjourned term, proceedings at a term appointed when another court might
have been in session are not void ; Sawyer v. Bryson, 10 Kan. 201, holding
an adjourned term is not an independent term; State v. Weaver, 11 Neb.
165, 8 N. W. 386, construing "rising of the court" to be equivalent to "the
last Jay of the term" ; In re Dossett, 2 Okl. 381, 382, 37 Pac. 1070, 1071,
holding proceedings at an adjourned session are not void, though regular
term in another county in the same district intervened ; Stirling v. Wagner,
4 Wyo. 31, 32, 33, 31 Pac. 1040, holding, in absence of statutory r^ulation,
a term may be adjourned to a day succeeding an intervening term in another
county of the same district.
Distinguished in Bryan v. Pinney, 2 Ariz. 391, 17 Pac. 97, holding an
adjourned term of Supreme Court held pursuant to order signed by major-
ity of judges under United States Rev. Stats., § 1934, is a distinct and
separate term, and not merely an adjourned session of the same term ; Dunn
V. State, 2 Ark. 250, 35 Am. Dec. 64, holding proceedings before special
term, held without proper order being entered, are void; Graham v. Parham,
32 Ark. 689, holding County Court cannot convene again before time fixed
for next regular term; Grimmett v. Askew, 48 Ark. 154^ 2 S. W. 708, holding
whpre act limited session to six days, board -of supervisors could not adjourn
to another day ; Gamer v. Carrol, 7 Yerg. 366, holding a special term is not
part of the regular term.
Miscellaneous. Cited in Irwin v. Askew, 74 Ga. 586.
What constitutes "adjournment" df public body. Note, AnxL Oas.
1915B, 778.
6 Wheat. 109-118^ 5 I^ Ed. 218, HOFEINB v. LEE.
« ■
Judgment of court of competent Jurlsdlctian condnalye as to mitten
directly decided, bat not as to collateral points.
1071 HOPKINS V. LEE. 6 Wheat. 109-118
Approved in Illinois v. Illinois Cent. R. R. Co., 184 U. 8. 91. 46 L. Ed. 446,
22 Sup. Ct. 305, holding every matter embraced in decree of vnited States
Circuit Court, which was affirmed by the Supreme Court, is conclusive be-
tween the parties; Mitchell v. First Nat. Bank of Chicago, 180 U. S. 480,
45 L. Ed« 632, 21 Sup. Ct. 421, holding denial of claim against insolvent's
estate by State court is conclusive on Federal court ; The J. R. Langdon, 163
Fed. 478, 90 C. C. A. 18, libelant's claim to maritime lien decided adversely
in creditor's suit against owners of vessel is res adjudieata, and suit in rem
in admiralty cannot afterward be maintained ; Kittel v. Trustees etc. of Im-
provement Fund, 139 Fed. 956, holding trustees of internal improvement
fund of Florida estopped by appearance in prior suit involving certificate
as to swamp-lands which they relied on as defense; G^eorg^a etc. Co. v.
Wright, 132 Fed. 917, decree in suit by Georgia against corporation that
charter created contract which precluded greater tax than half of one per
cent of net earnings is res adjudicata in suit involving taxes for other
years; Williamson v. M'Caldin Bros. Co., 122 Fed. 64, holding decree dis-
missing libel against tugs for capsizing vessel through negligence' is con-
clusive between parties that tugs were not in fault for capsizing; Norton
V. House of Mercy, 101 Fed. 385, 386, holding denial of New York chari-
table corporation of right to hold more than fifty thousand dollars of real
estate is conclusive against parties although other land is situated in an-
other State; Morris v. Bartlett, 108 Fed. 678, holding dismissal of libel in
rem against vessel is not adjudication of nonliability of owners; Territory
V. Hopkins, 9 Okl. 150, 59 Pac. 981, determining conclusiveness of decree in
statutory proceedings to determine validity of bonds; Wells v. Boston &
M. R. R. Co., 82 Vt. 118, 137 Am. St. Rep. 987, 71 Atl. 1105, plaintiff'^
right to be on train from which ejected, not having been expressly ad-
judicated in Justice's Court, judgment cannot be used as conclusive evidence
in subsequent action; Ex parte Sibbald v. United States, 12 Pet. 492, 9
L. Ed. 1169, holding Superior Courts cannot reverse their own decrees;
Bank of United States v. Beverly, 1 How. 148, 149, 11 L. Ed. 81, holding
courlr could not revise the evidence on which the decree was rendered;
Washington Bridge Co. v. Stewart, 3 How. 426, 11 L. Ed. 664, holding
court could not revise its decision after expiration of term; Smith v.
Kemochen, 7 How. 217, 218, 12 L. Ed. 674, holding decree in chancery de-
daring instrument void is a bar to future action on it; Pennington v. Gib-
son, 16 How. 77, 14 L. Ed. 852, holding a decree of equity is as binding as
a judgment of law ; Aurora City v. West, 7 Wall. 101, 19 L. Ed. 49, holding
plea of res judicata applies to every objection urged in second suit which
might have been urged in first suit ; Johnson etc. Co. v. Wharton, 152 U. S.
257, 38 L. Ed. 432, 14 Sup. Ct. 609, where judgment was for royalties on
sale of patented articles; Dowell v. Applegate, 152 U. S. 344, 38 L. Ed. 469,
14 Sup. Ct. 618, holding same issue cannot be retried in an independent suit
based upon a title which might have been set up in the first suit; Last
Chance Min. Co. v. Tyler Min. Co., 157 U. S. 687, 39 L. Ed. 862, 15 Sup. Ct.
735, holding judgment was conclusive as to the particular ground in con^
troversy ; New Orleans v. Citizens' Bank, 167 U. S. 397, 42 L. Ed. 211, 17
Sup. Ct. 914, holding two judgments holding exemption from taxes eon-
6 Wheat. 109-U8 NOTES ON U. S. REPORTS. 1072
tinned during extension of charter are res judicata; Southern Pac. R. R.
Co. V. United States, 168 U. S. 49, 42 L. Ed. 377, 18 Sup. Ct. 27, holding
a right or fact directly determined hy a court of competent jurisdiction
is conclusively established ; Vogler v. Spaugh, 4 Diss. 293, Fed. Gas. 16,988, re-
fusing to admit parol evidence contradicting record ; Putnam v. New Albany,
4 Biss. 383, Fed. Gas. 11,481, holding for an adjudication to be an estoppel
it must have been distinctly put in issue; Baring v. ^fanning, 1 Paine, 556,
Fed. Gas. 982,Jioldi«g judgment can be used as evidence in another suit
only as against parties and privies ; as also in Society for P. of G. v. Hart-
land, 2 Paine, 542, Fed. Gas. 13,155, rulini* similarly; Radford v. Folsom,
3 Fed. 202, holding fact thiit in one, suit might have been determined, does
not prevent its being raised in a suit upon a different cause of action;
Flanagin v. Thompson, 9 Fed. 183, where in foreclosing one mortgage valid-
ity of assignment was decided, it could not be raised in foreclosing second
mortgage given for same note; The Tubal Cain, 9 Fed. 836, 838, holding
where the issue in two actions is substantially the same, each is a bar,
though the causes of action be different; B. So 0. Ry. Co. v. Pittsburg etc.
R. R. Co., 55 Fed. 703, holding one having obtained benefiiof contract in
suit was estopped to deny its validity in second suit for different claim;
Bissell Carpet Sweeper Go. v. Goshen Sweeper Co., 72 Fed. 552, 43 U. S.
App. 47, holding decision of Circuit Court of Appeals finally settles the
matter and lower court must carry it into effect; Newton Mfg. Co. v.
Wilgus, 90 Fed. 488, holding judgment in jmtent case conclusive against
the parties in a subsequent suit; Poole v. Nixon, 19 Fed. Gas. 1000, 1004,
9 Pet. Appx. 770, 8 L. Ed. 309, 312, holding court of equity cannot order
rehearing of a cause after the close of a term ; Warner v. Brinton, 29 Fed.
Gas. 235, doubting as to whether minutes of Register's Court are competent
evidence in an ejectment to try title of land ; Phillips v. Thompson, 3 Stew.
& P. 379, holding decree is as conclusive as a judgment; Wyman v. Camp-
bell, 6 Port. 237, 31 Am. Dec. 686, holding judgment of court having juris-
diction of the parties is conclusive, notwithstanding irr^ularities that
would authorize reversal ; Mills v. Stewart, 12 Ala. 95, holding where riipord
of court of one State, properly authenticated, is offered in evidence, pre-
sumption is that the court had jurisdiction ; Davidson v. Dallas, 15 Gal. 83,
holding decision of Supreme Court cannot be reviewed when case comes
up on second appeal; Caperton v. Schmidt, 26 Gal. 494, 85 Am. Dec. 191*
holding judgment is conclusive between parties and privies as to all mat-
ters put in issue and passed on; McCreery v. Fuller, 63 Gal. 32, holding
same as to judgment entered upon a stipulation; Lillis v. Emigrant Ditch
Co., 95 Gal. 559, 30 Pac. 1110, holding judgment is conclusive as to facts
in issue, not as to matters coming collaterally; Betts v. Starr, 5 Conn.
553, 554, 13 Am. Dec. 97, 98, holding, former judgment is conclusive,
although cause of action and object of were different; Denison v. Hyde,
6 Conn. 517, holding decree of District Court in another case deciding
title between same parties is conclusive ; Goit v. Tracy, 8 Conn. 276, 20 Am.
Dec. 112, holding former judgment is conclusive evidence as to facts
directly decided; Holcomb v. Phelps, 16 Conn. 131, holding judgment of
court of competent jurisdiction is conclusive as to title claimed under it;
1073 HOPKINS V. LEE. 6 Wheat. 109-118
Dayis v. Millaudon, 17 La.. Ann. 104, 87 Am. Doc. 518, holding opinion
of court does not have the force of the thing adjudged unless disposed of
by a decree of the court; McEam v. Odom, 12 Me. 101, holding action of debt
will lie as well on a decree of a court of chancery in another State as on a
judgment; Russ v. Wilson, 22 Me. 211, holding whenever a party could have
defended himself, in an action at law, and has not, he cannot be relieved
by injunction; dissenting opinion in People v. Dawell, 26 Mich. 271, hold-
ing State court judgment divorcing parties domiciled elsewhere is a nullity ;
Lank v. Keim, 52 Miss. 347, holding judgment is conclusive aS' to facts
directly in issue; Ridgley v. Stillwell, 27 Mo. 132, holding judgment is
not conclusive as to matters collaterally considered; Kittredge v. Emerson,
15 N. H. 263, holding Federal courts cannot treat judgment of State court
with jurisdiction as a nullity even if founded on an erroneous construc-
tion of bankrupt act; Divall v. Atwood, 41 N. H. 445, holding judgment
was conclusive as to fact of usury, incidentally coming up in another cause ;
Mutual Fire Ins. Co. v. Newton, 50 N. J. L. 577, 14 Atl. 759, holding de-
fense that decree for deficiency had been made in foreclosure suit re-
specting the same debt, is good plea to action upon the bond; McFadden
V. Geddis, 17 Serg. & R. 339, holding decree of Orphans' Court settling
account of executor is conclusive as to all matters therein in any collateral
suit; Viles v. Moulton, 13 Vt. 517, query whether a decree in chancery is
more than prima facie evidence of facts found; Gray v. Pingry, 17 Vt.
424, 44 Am. Dec. 847, holding last requisite of estoppel by matter of record
is that the particular fact was in issue and found; Tilson v. Davis, 32
Gratt. 104, holding party to creditor's suit not setting up a claim is con-
cluded from setting it up thereafter; Shenandoah V: R. R. Co. v. Griffith,
76 Va. 925, holding judgment of court of competent jurisdiction is con-
clusive between same parties upon same matter directly in question in
subsequent action ; Blackwell v. Bragg, 78 Va. 539, holding decree of admin-
istrator's account cannot' be reopened save as provided by statute as to
parties under disabilities; McCuUough v. Dashiell, 85 Va. 41, 6 S. E. 612,
holding all questions involved in an appeal are finally adjudicated, whether
distinctly raised and passed on below and here or not; Fishbume v. Fer-
guson, 85 Va. 325, 7 S. E. 363, holding when one set up a judgment as a
bar, he must show the matter was actually litigated or might have been;
Western M. & M. Co. v. Virginia Cannel Coal Co., 10 W. Va. 281, holding a
fact directly decided by a court of competent jurisdiction is res judicata;
Coville V. Gilman, 13 W. Va. 328, holding judgment is conclusive only as
to matters directly involved; Oakley v. Hibbard, 2 Pinn. 22, 52 Am. Dec.
140, holding when court of last resort has entered its final judgment or
decree, it has no power to rehear the cause; Pierce v. Kneeland, 9 Wis.
38, holding final decision of Supreme Court upon an order of the court
below is conclusive; Akerly v. Vilas, 24 Wis. 174, 1 Am. Rep. 173, con-
struing words "final hearing or trial" in act providing for transfer of
causes from State to Federal courts; Jackson v. Astor, 1 Pinn. 158, 159,
39 Am. Dec. 291, 292, dissenting opinion in Harrison v. Nixon, 9 Pet, 534^
9 L. Ed. 220, arguendo.
I— «8
6 Wheat. 109-118 NOTES ON U. S. REPORTS. 1074
Distinguished in Gaines y. Hennen, 24 How, 579, 16 L. Ed. 779» holding
where parties and object of two suits are dissimilar, one is not a bar to
the other; Badger v. Badger, 1 Cliff. 245, Fed. Cas. 717, holding record
of former suit where complainant moved to dismiss bill is not a bar;
The Sloop Davis, Crabbe, 191 Fed. Cas. 12,357, holding dismissal of bill,
to be a bar, must have been ordered upon a hearing of the parties or on
the merits ; Allen v. Blunt, 2 Wood. & M. 133, Fed. Cas. 217, holding where
there was no judgment on the verdict, but bill was dismissed, it is not
a bar; Woodland v. Newhall, 31 Fed. 437, holding where suit for legacy
is dismissed on general demurrer, it is no bar to action for same sum
claimed under a trust; Rodgers v. Russell, 11 Ala. 457, holding judgment
is not evidence against one not a party ; Fairman v. Bacon, 8 Conn.. 425,
holding former judgment is not an estoppel as to facts not directly in issue
in that case; Hilton v. Guyot, 159 U. S. 183, 40 L. Ed. 115, 16 Sup. Ct.
151, declaring this a dictum so far as foreign judgments are concerned,
and holding judgment of court of France is prima facie evidence only, since
this is the effect of our judgments in France.
Conclusiveness of judgment in rem. Note, 11 E. R. 0. 46.
Measure of damages for not delivering tiling sold is price of article sold
at time of breaclL
Approved in Clark v. Belt, 223 Fed. 578, 138 C. C. A. 1, measure of
damages in breach of contract to convey land is difference between contract
price and market price at time of breach; Webb v. Wheeler, 80 Neb. 444,
17 L. R. A. (N. S.) 1188, 114 N. W. 638, measure of damages for breach of
covenant of title is value of outstanding title at time plaintiff obtained
deed; Roberts v. McFadden, 32 Tex. Civ. 55, 74 S. W. 110, where title
'offered by vendor is not marketable, vendee may have rescission but can-
not recover damages for loss of bargain; Roberts v. Tuttle, 36 Utah, 634,
105 Pac. 923, agent having no authority to sell land is liable to pur-
chaser for money paid with interest, value of improvement, costs in
ejectment suit, and loss of bargain, or difference between contract price
and market value at time of ejectment; Oldfield v. Angeles Brewing
etc. Co., 77 Wash. 161, 137 Pac. 471, plaintiff entitled to recover dif-
ference between rental fixed in contract and rental value of premises for
term; West Coast etc. Co. v. West Coast etc. Co., 31 Wash. 614, 72 Pac.
457, holding measure of damages of covenant of warranty of title is con-
sideration money lost, less any unpaid consideration; Patrick v. Leach,
1 McCrary, 252, 2 Fed. 121, holding in action for breach of covenant of
warranty, damages is the consideration money, with interest; Missouri
Furnace Co. v. Cochran, 8 Fed. 464, holding measure of damages is differ-
ence between contract price and market price at place of delivery; Snod-
grass V. Reynolds, 79 Ala. 461, 58 Am. Rep. 606, where measure of damages
between lessor and lessee was declared to be the value of the lease; Logan
V. Moulder, 1 Ark.. 324, 33 Am. Dec. 845, holding vendor is liable for pur-
chase money and interest; Kempner v. Cohn, 47 Ark. 528, 1 S. W. 872,
holding damages for breach of contract to convey is difference between
contract price and value of land at time of breach, with interest ; Mc Alpin
1075 HOPKINS V. LEE. 6 Wheat. 109-118
V. Lee, 12 Conn. 133, SO Am. Dec. 610, allowing difference between contract
price and valne of property sold, as damages; Biggers v. Pace, 5 Ga. 176,
allowing difference between contract price and market price at place of
delivery; Green v. Williams, 45 111. 209, allowing difference between rent
in covenant and actual value of premises at time of breach; Plummer v.
Rigdon, 78 111. 226, 20 Am. Bep. 264, allowing value of land at time con-
veyance was to be made; Reese v. McQuilkin, 7 Ind. 452, giving purchase
money and interest, in suit upon covenant of warranty; Galting v. Newell, 12
Ind. 125, rejecting evidence as to what price patent rights sold several
years before had brought; Case v. Wolcott, 33 Ind. 23, allowing vendee
difference between unpaid purchase money and actual value of land at
time of breach; Wood v. Bibbins, 58 Ind. 397, allowing for breach of war-
ranty, purchase money and interest ; Puterbaugh v. Puterbaugh, 7 Ind. App.
296, 33 N. E. 813, allowing vendee value of land at time of breach, less
contract price; dissenting opinion, Stone v. Morgan, 13 Ind. App. 59, 41
N. E. 83, majority allowing, in claim based on contract unenforceable
because of statute of frauds, the value of services rendered; Foley v.
McKeegan, 4 Iowa, 11, 66 Am. Dec. 114, holding if vendor is in fault, ven-
dee should recover the increased value of the land; Sweem v. Steele, 5
Iowa, 356, holding damages to be value of land when it should have been
conveyed; Hill v. Hobart, 16 Me. 169, allowing value of land at time con-
veyance should have been made ; Doherty v. Dolan, 65 Me. 90, 20 Am. Rep.
679, holding vendee could recover value of land at date of breach, minus
what he owed for it; Marshall v. Haney, 9 Gill, 260, giving value of land
at time of breach; Alexander v. Macauley, 6 Md. 369, allowing actual
value of stock at time it should have been transferred; Hammond v. Han-
nin, 21 Mich. 388, 4 Am. Rep. 495, holding, where vendor acts in bad faith,
value of land at time of breach is the damage ; Gridley v. Tucker, 1 Freem.
Ch. 213, holding measure of damages in executory contract is value of land
at time of breach; Kirkpatrick v^ Downing, 58 Mo. 41, 17 Am. Rep. 685,
allowing vendee value of land at time of breach; Hartzell v. Crumb, 90
Mo. 637, 3 S. W. 61, holding damages is difference between contract price
and value of property at time of breach; Taylor v. Holter, 1 Mont. 701,
holding measure of damages for breach of warranty is value of property
at time of conveyance, with interest; Carver v. Taylor, 35 Neb. 434, 63
N. W. 388, allowing for breach of an executory contract, value of land
at time contract should have been performed, less contract price; Violet
V. Rose, 39 Neb. 676, 58 N. W. 221, holding, where vendor delays perform-
ance, measure of damages is difference between value at time conveyance
should have been made and when it was made; Pinkerton v. Railroad Co.,
42 N. H. 461, holding, in suit for certificate of stock, damages is value at
time of demand, with interest; Pumpelly v. Phelps, 40 N. Y. 65, 67, 100
Am. Dec. 466, 467, holding, where vendor contracts to sell land, knowing
he has not title, he is liable to vendee, even though he believed he would
be able to procure title; Jack v. McKee, 9 Pa. St. 242, holding damages
for breach of contract to give land for services is the value of the land;
McDowell V. Oyer, 21 Pa. St. 426, allowing value of the land which party
had promised to convey; Phillips v. Hemdon, 78 Tex. 382, 22 Am. St. R^.
63, 14 S. W. 858, holding damages where vendor sold to another is value
6 Wheat. U9-127 NOTES ON U. S. REPORTS. 1076
of land at time of such sale; Dunsliee v. Qeoghegan, 7 Utah^^ll7, collecting'
cases and applying rule to breach of contract to convey land; Park v.
Bates, 12 Vt. 388, 36 Am. Dec. S50, allowing value of land at time decision
was made against title of warrantor ; Combs v. Scott, 76 Wis. 669, 45 N. W.
534, allowing for breach of contract to convey, value of land at time con-
vpyance should have been made; Johnson v. McMullin, 3 Wyo. 239, 21 Pac.
702, holding damages were market value of land at time deed ought to
have been delivered; Whiteside v. Jennings, 19 Ala. 791, arguendo; Blan-
chard v. Ely, 21 Wend. 347, 34 Am. Dec. 263, considering general doctrine
of damages; Dunshee v. Geoghegan, 7 Utah, 117, 25 Pac. 732, where one
contracts to convey real estate, knowing he has no right to sell, measure
of damages is difference between contract price and price at time of the
purchase.
Distinguished in Orange etc. R. R. Co. v. Placide, 35 Md. 320, holding, in
absence of proof as to the market value of the bonds, measure of damages
was difference between contract value of work and materials of contractors
and amount paid to them; Drake v. Baker, 34 N. J. L. 362, holding, where
one is prevented from conveying by latent flaw in title, vendee cannot re-
cover for loss of bargain; Baldwin v. Munn, 2 Wend. 407, 20 Am. Dec.
631, holding, if vendor acts in good faith, but discovers defect in his title,
he is not liable for damages; Cox v. Henry, 32 Pa.' 19, holding, where
vendee has been evicted by paramount title, dami^es is the consideration
paid ; Morgan v. Bell, 3 Wash. 579, 16 L. R. A. 623, 28 Pac. 933, holding
one contracting to convey land not his own is liable for amount paid him,
with interest.
Denied in Wallace v. Long, 105 Ind. 530, 66 Am. Rep. 228, 5 N. E. 671,
holding, where one performed services in consideration of property to be
conveyed, and contract is unenforceable because of statute of frauds, meas-
ure of damages is value of services and not of the property; Hertzog v.
Hertzog, 34 Pa. St. 429, 433, holding, in action for breach of contract, where
land was to be conveyed for services rendered, damages are value of con-
sideration and not the value of the land.
Measure of vendee's damages on a breach of contract to convey realty.
Note, 106 Am. St. Rep. 971.
Measure of damages for breach of contract to sell land due to vendor's
inability to make title. Note, 2 Ann. Gas. 636.
Damages for breach of contract to convey realty. Note, 16 L.. R. A»
(N. S.) 769.
Law governing validity of transfer of property. Note, 6 E, R. 0. 928.
6 Wheat. 119^127, 5 L. Ed. 221, THATCHER ▼. POWEUi.
Execution by public officer of power to sell land for taxes must be in strict
pursuance of statute.
Approved in Edwards v. Bates County, 117 Fed. 529, holding under
Missouri statute omission of court to find that petition for call of bond
election was not signed by twenty-five taxpayers and residents of the town-
1077 THATCHER v. POWELL. 6 Wheat. 119-127
ship was fatal; Territory v. Delinquent Tax List, 3 Ariz. 91, 21 Pac. 894,
holding when power to collect tax is conferred on courts they are treated
in exercise of it as courts of special jurisdiction, and record must affirma-
tively show jurisdiction; Jones v. Falvella, 126 Cal. 26, 58 Pac. 312, holding
petition for sale of homestead under Stats. 1873-74, p. 582 (Cal.), must
state value of property; Cohen v. United States, 38 App. D. C. 126, statute
allowing district attorney to cancel certificate of citizenship "upon affi-
davit showing good cause therefor" must be strictly complied with;
Corryell v. Lawson, 26 Colo. App. 439, 139 Pac. 28, statute allowing impris-
onment for debt in case of tort where defendant guilty of malice, fraud
or deceit is penal in its nature and must be strictly construed; Thaw v.
Ritchie, 4 Mackey (D. C), 379, Orphans' Court of District of Columbia
had no jurisdiction to decree sale of infant's real estate, moreover, juris-
dictional facts did not appear in proceeding; Southern Pine Co. v. Kirk-
land, 112 Gtt. 218, 37 S. E. 362, holding in Georgia in 1884, if land was
not returned for taxation, sale of same for taxes was void; Fuller v.
Exchange Bank, 38 Ind. App. 573, 78 N. E. 206, sheriff in making execution
sale must comply with express provisions of law in order to give valid
title ; United States Express Co. v. Hurlock, 120 Md. 112, Ann. Oas. 1915A,
566, 87 Atl. 835, jurisdiction in foreign attachment depends upon statute
and proceedings must, upon their face, show affirmatively that statute has
been 'substantially complied with; McMahon v. Crean, 109 Md. 666, 71 Atl.
997, statute conferring x)ower upon tax collector to sell land for taxes
must be substantially complied with; Hughes v. Lum County, 37 Or. 119,
60 Pac. 845, holding affidavit of sheriff under Hill's Ann. Laws, §§ 2809-
2811 (Or.), that statement of unpaid taxes was true was insufficient, and
sale thereunder void; Tax Title Cases, 105 Tenn. 251, 58 S. W. 260, holding
if county trustee under Tenn. Acir 1897, c. 1, § 63, does noi file certified
list of land sotii, for taxes with clerk of Circuit Court, purchaser acquired
no title under .wl'e; Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 78^,
14 L. K. A. (N. B.) 1135, 1136, 60 S. E. 133, court refuses to take judicial
notice of fact timt secretary of corporation is agent with power to make
affidavit of attandiment as required by code; Huff v. Prenitt (Tex. Civ.),
63 S. W. 844, . holding under Sayles' Civ. Stats. 1897 (Tex.), art. 580,
requiring map of proposed incorporated city to accompany application for
election, is necessary to validity of election; Hardman v. Brannon, 70
W. Va. 730, 75 S. E. 76, sheriff has no power to sell land for taxes at time
other than that fixed by statute; Mason v. Pearson, 9 How. 260, 13 L. Ed.
130, construing strictly a statute empowering a municipality to sell a lot
to pay taxes ; Early v. Doe, 16 How. 618, 619, 14 L. Ed. 1083, holding stat-
ute providing for duration of time of publication must be exactly complied
with ; Ransom v. Williams, 2 Wall. 319, 17 L. Ed. 805, holding burden of
proving compliance with statute authorizing execution to issue against land
of deceased debtor is on purchaser; note to Gray v. Larrimore, 2 Abb.
(U. S.) 549, Fed. Cas. 5721, holding statute authorizing sait to be com-
menced against a nonresident by means of service by publication must
be strictly pursued; Cowdrey v. Caneadea, 21 Blatchf. 362, 16 Fed. 533,
eonstruing statute providing for issuing bonds of a town in aid of a rail-
6 Wheat. 119-127 NOTES ON U. S. REPORTS. 107S
Toad; United States y. Brown, Gilp. 182, Fed. Cas. 14,663, holding bond
taken under a statute must conform to it ; United States v. Pacific R. R. Co.,
1 McCrary, 7, 1 Fed. 102, holding, in order to establish a lien for taxes,
all prerequisites must be complied with; Dunn v. Games, 1 McLean, 328,
Fed. Cas. 4176, holding person claiming under a tax deed must show that
all legal requisites have been complied with; Hilliard v. Brevoort, 4 McLean,
25, Fed. Cas. 6505, holding unless averment of citizenship be contradicted,
it need not be proved on trial ; Mayhew v. Davis, 4 McLean, 2ii, Fed. Cas.
9347, holding collector of taxes must make a demand before judgment can
be properly rendered against land; Arrowsmith v. Burlingim, 4 McLean,
499, Fed. Cas. 563, holding to render an auditor's deed evidence of title
to land sold for taxes, it must be first shown that all leg^l requisites^have
been complied with; Tolmie v. Thompson, 3 Cr. C. C. 135, Fed. Cas. 14,080,
holding everything necessary to proceedings for partition or sale of land
of an intestate must be proved; United States v. Allen, 14 Fedr265, holdings
sale under revenue tax law is void unless statute is literally followed;
Lackett v. Rumbaugh, 45 Fed. 30, holding provision of code authorizing
attachment of nonresident's property upon service of summons by publi-
cation cannot be recognized in case commenced in a Federal court; Cook
V. Lasher, 73 Fed. 707, 42 U. S. App. 42, holding tax deed is invalid unless
every prerequisite prescribed by statute has been performed; Turner ▼.
Thrower, 5 Port. 53, holding party setting up title to fugitive slave sold
under statute must prqve that all requisitions have been complied with;
Wyman v. Campbell, 6 Port. 244, 81 Ajn. Dec. 691, holding 'proceedings
of Orphans' Court are invalid unless facts necessary to jurisdiction appear
on the record; Lyon v. Hunt, 11 Ala. 313, 46 Am. Dec. 228, holding pur-
chaser at tax sale must affirmatively show the fulfillment of every substan-
tial requisite; Wightman v. Korsner, 20 Ala. 455, holding orders made at
unauthorized special term of court of limited jurisdiction are void; EBbnra
V. Lepretre, 21 Ala. 522, 56 Am. Dec. 272, holding proceedings in Orpiians^
Court to declare party non compos mentis, if made without nottee^ are
void; Foster v. Glazener, 27 Ala. 397, holding judgment of sister State,
summary in character, void unless record shows statute authorizing^ tiie
proceedings; Ghinn v. Howell, 27 Ala. 675, 62 Am. Dec. 789, holding sum-
mary proceedings must pursue statute; Moody v. Bibb, 50 Ala. 248, holding
appointment of guardian of supposed lunatic by probate court, without
an inquisition of lunacy, is void; Driggers v. Cassady, 71 Ala. 533, holding
jurisdiction of probate court to order sale of land for taxes, appearing
on record, its judgment cannot be collaterally attacked; Carlisle v. State,
78 Ala. 488, holding sale of land for unpaid taxes invalid where notice
was not given as prescribed by statute ; Wartensleben v. Haithcock, 80 Ala.
570, 1 Soutb. 42, holding the affidavit which the tax collector is required
to file in office of probate judge, as to his inability to find personal prop-
erty, is a jurisdictional fact without which order of sale is void; Gibney
V. Crawford, 51 Ark. 40, 9 S. W. 311, holding, in proceeding for calling
in county warrants, statute must be strictly pursued; dissenting opinion in
People V. Holladay, 25 Cal. 309, to effect that no intendment is to be made
in favor of re;gularity of proceedings of courts of special jurisdiction;
1079 THATCHER v. POWELL. 6 Wh«at. 119-127
Sean ▼. Terry, 26 Conn. 286, holding probate court in appointing con-
servators must conform strictly to the statutes; Dorrance v. Raynsford,
67 Conn. 6, 7, 62 Am. St. Rep. 268, 34 Atl. 707, holding purchaser under
administrator's deed must prove that proper notice was given; Swepson
V. Call, 13 Fla. 359, holding requirements of statute authorizing transfer
of case from one court to another must be strictly followed; Dickerson v.
Acosta, 15 Fla. 620, holding same as to forfeiture of land for nonpayment
of taxes ; D 'Antignac v. City Council of Augusta, 31 Ga. 710, as to proceed-
ings under statute whereby man may be deprived of his property; Fitch
V. Pinckard, 4 Scam. 79, holding purchaser at tax sale must prove that
every prerequisite has been complied with; as also in Graves ▼. Bruen, 11
111. 438, ruling similarly; Haywood ▼. Collins, 60 111. 336, holding, in sum-
mar^ proceedings, jurisdictional facts ought to appear in record; Dentler
V. State, 4 Blackf. (Ind.) 260, holding motion to vest title of land in State
for nonpayment of taxes will not be granted unless notice has been pub-
lished as prescribed by statute; Wilfon v. Poole, 33 Ind. 447, holding where
precept was void, the treasurer of city could not pass title; McEwen v.
Gilker, 38 Ind. 246, sustaining demurrer to complaint where transcript
on appeal from assessment for street work fails to show advertisement for
bids; Doctor v. Hartman, 74 Ind. 231, holding where court is without
jurisdiction of subject matter, parties cannot confer it by waiver; €h>ring
V. McTaggart, 92 Ind. 204, granting injunction to restrain sale of real
estate upon a void precept issued for street work; Scott v. Babcock, 3
G. Greene, 140, 142, holding tax sale not legal unless all requirements of
statute have been fully complied with; Laraby v. Reid, 3 G. Greene, 421,
holding same as to sale under revenue law; Cooper v. Sunderland, 3 Iowa,
123, 129, 66 Am. Dec. 66, 61, holding if sufficient appears on face of record
in special proceeding to give jurisdiction, presumption is in favor of the
proceedings; Bradley ▼. Jamison, 46 Iowa, 73, holding to acquire juris-
diction where service is by publication, statute must be strictly followed;
Stafford v. Twitchell, 33 La. Ann. 528, holding where property was not
legally assessed and notice was not properly given, sale for taxes was
inoperative; Campbell v. Webb, 11 Md. 481, holding officer responsible
who executes process of court of limited jurisdiction which shows the court
is without jurisdiction; Steuart v. Meyer, 54 Md. 466, holding, under statute,
onus of showing illegality of tax sale is on party resisting sale; Coward
V. Dillinger, 56 Md. 61, holding objection to attachment that it does not
show affirmatively upon its face that statutory requisites have been com-
plied with may be availed of on motion to quash, in arrest of judgment
or on appeal; Friedenwald v. Shipley, 74 Md. 230, 24 Atl. 156, holding
examiner, in condemning streets, must conform strictly to statute; Folger
V. Insurance Co., 99 Mass. 273, 96 Am. Dec. 751, refusing to recognize
decree of New York in excess of the jurisdiction of that court; Wight v.
Warner, 1 Doug. (Mjch.) 388, holding jurisdictional facts must affirmatively
appear in statutory proceeding; Sibley v. Smith, 2 Mich. 496, holding, under
statute, tax deed is prima facie evidence of regularity of proceedings;
Piatt V. Stewart, 10 Mich. 265, holding all jurisdictional facts ought affirma-
tively to appear on record in partition proceedings; Chauncey v. Wass, 35
6 Wheat. U9-127 NOTES ON U. S. REPORTS. 1080
Minn. 21, 30 N. W. 834, holding, in proceedings to enfbrce payment of
taxes, jurisdiction of court is not affected by fact that taxes have been
previously paid; Vick v. Mayor of Vicksbtug, 1 How. (Miss.) 440, 445,
31 Am. Dec. 180, 185, holding partition not binding unless proper notice
was given; Marks v. McElroy, 67 Miss. 547, 7 South. 408, holding no pre-
sumption of jurisdiction arises from decree removing disability of minor;
Morton v. Reeds, 6 Mo. 73, holding strict proof of compliance with requi-
sites is necessary in summary proceedings; dissenting opinion in State v.
Woodson, 41 Mo. 238, majority holding same as to power tovrelieve parties
from disabilities; Johnson v. Hahn, 4 Neb. 148, enjoining sale of realty
where owner has personalty; Morrill v. Taylor, 6 Neb. 242, holding valid
assessment a prerequisite to Exercise of taking power; Gaboon v. Coe, 57
N. H. 569, 596, holding purchaser of tax title must show all requirements
have been performed; Barrow v. Bispham, 11 N. J. L. 114, holding sale
for taxes void where statute was not strictly pursued; State v. Mayor of
Jersey City, 36 N. J. L. 192, holding'^illegality of assessment will avoid
sale ; State v. Mayor of Newark, 36 N. J. L. 290, as to publication of notice
to taxpayers; Bloom v. Burdick, 1 Hill, 141, 87 Am. Dec 807, holding
statutory authority depriving one of his estate must be strictly pursued;
Sharp V. Speir, 4 Hill, 86, and Hubbell v. Weldon, Lalor's Supp. to. Hill & D.
145, ruling similarly as to sale for taxes ; Striker v. Kelly, 7 Hill, 25, hold-
ing purchaser must prove sale was regular; Sherwood v. Reade, 7 Hill, 434,
holding statute authorizing sale under mortgage must be strictly followed ;
Cruger v. Dougherty, 43 N. Y. 122, holding same as to tax sale; Merritt
V. Port Chester, 71 N. Y. 312, 27 Am. Rep. 48, as to statute charging prop-
erty with local improvements; Lafferty v. Byers, 5 Ohio, 458, holding mis-
description of quantity in notice invalidated tax sale; Adams v. Jeffries,
12 Ohio, 272, 40 Am. Doc. 478, holding administrator's sale void where
order failed to show heirs were parties; Spice v. Steinruck, 14 Ohio St. 218,
as to statutory civil arrest; as also in Norman v. Zieber, 3 Or. 203; Wain
V. Shearman, 8 Serg. & R. 369, holding five years' limit for institution of
suit to recover land sold for taxes runs from time purchaser enters into
possession; dissenting opinion in Stewart v. Shoenfelt, 13 Serg. & R. 375,
majority holding sale valid under statute, though land was assessed by
assessor from another township ; In re College Street, 11 R. I. 474, holding
assessment by commissioners without authority void ; Baker v. Chisholm, 3
Tex. 158, holding court established by law cannot transcend the jurisdic-
tion given by that law ; Hadley v. Tankersley, 8 Tex. 20, holding purchaser
at tax sale must show performance of all prerequisites ; Mitchell v. Runkle,
25 Tex. Sup. 137, holding in summary proceedings, jurisdictional facts must
appear; Solon v. State, 5 Tex. App. 305, holding courts cannot transcend
the authority of the law of their creation; Boon v. Simmons, 88 Va. 265,
13 S. E. 441, holding every statutory provision in which the owner can
possibly have' an interest, must be strictly obeyed, else tax title will be
void ; McCullough v. Hunter, 90 Va. 701, 19 S. E. 776, holding sale by ex-
collector void; McAllister v. Guggenheimer, 91 Va. 320, 21 S. E. 476, hold-
ing attachment void, statutory requirements not appearing on its face;
1081 THATCHER v. PO WELU 6 Wlicat. 11 9-127
Whitney ▼. Brunette, 15 Wis. 68, holding attachment not in statutory form -
void.
Distinguished in Conley v. McMillan, 120 Mich. 696, 79 N. W. 910, hold-
ing under Act 1893, No. 206, §42 (Mich.), relating to collection of taxes,
return of treasurer three days after date prescribed will not avoid sale or
lien; Hunt v. Ellison, 32 Ala. 198, considering the effect of recitals of
appearance in record; Minor v. Pres. of Natchez, 4 Smedes & M. 626, 43
Am. Dec. 494, holding departure of ofi&cer from statutory mode of adver-
tising will not vitiate sfde; Freeman v. Thompson, 53 Mo. 198, holding
jurisdiction is acquired, when attachment is levied; Werz v. Werz, 11
Mo. App. 35, holding suit for divorce not within the rule; Liddel v. Mc-
Vickar, 11 N. J. L. 52, 19 Am. Dec. 377, holding Orphans' Court may
make a second order of sale to pay debts; Bulow v. Witte, 3 S. C. 325,
holding sale by master in equity valid, though he accepted Confederate
currency; Guilford v. Love, 49 Tex. 743, holding partition in probate court
not a special proceeding; Williams v. Ball, 52 Tex. 609, 36 Am. Bep. 732,
holding judgment of justice of peace cannot be collaterally attacked,
because it does not show jurisdiction of facts; Keystone B. Co. v. Sum-
mers, 13 W. Va. 504, where there was no irregularity ; Davis v. Pt. Pleasant,
32 W. Va. 294, 9 S. E. 230, holding city may tax agricultural lands incor-
porated -into its limits, though not laid out into streets ; Potts v. Cooley,
51 Wis. 355, 8 N. W. 154, holding tax deed valid where notice stated it
was given by the holder of the certificate instead of by the owner.
In constrding local statutes respecting real i^operty, Supreme Court Is
governed by decisions of State tribunals.
Approved in Jackson v. Chew, 12 Wheat. 168, 6 L. Ed. 589, adopting local
law of real property as ascertained by State courts; Green v. Neal, 6 Pet.
297, 8 L. Ed. 405, following construction of State courts of statute of
limitations; Mc Arthur v. Scott, 113 U. S. 391, 28 L. Ed. 1031, 5 Sup. Ct.
667, following State court's construction of statute that decree setting
aside a will is void as to all persons in interest not made parties; Ridings
V. Johnson, 128 U. S. 224, 32 L. Ed. 405, 9 Sup. Ct. 76, followed decisions
of State courts on registry laws; Thompson v. Phillips, 1 Bald. 284, Fed.
Cas. 13,974, following settled construction of State law by the highest
court of that State; Derby v. Jacques, 1 Cliff. 439, Fed. Cas. 3817, holding
as to writ of right in Circuit Court, the State having abolished the writ;
Boyle V. Arledge, Hempst. 623, Fed. Cas. 1758, holding exposition of State
statutes by local tribunals are considered as a part of the law, and become
a rule of property; Mitchell v. Lippincott, 2 Woods, 472, 473, Fed. Cas.
9665, refusing to enforce a mortgage which, at time when made, was valid
according to decisions of State courts, but according to subsequent de-
cisions, invalid; Hiller v. Shattuck, 1 Flipp. 274, Fed. Cas. 6504, following
^ State ejectment law ; New Hampshire v. Grand Trunk Ry. Co., 3 Fed. 888,
following State construction of local laws ; Hempstead v. Reed, 6 Conn. 487,
holding it is not improper condescension for State court to yield to United
States court construction of the Constitution; McClure v. Owen, 26 Iowa,
254, holding Federal courts will follow latest construction of State statute
6 Wheat. 128^130 NOTES ON U. S. REPORTS. 1082
and Constitution by State courts; Levy t. Mentz, 23 La. Ann. 262, refusing
to follow Federal interpretation of State statute adverse to construction
of State courts.
Distinguished in Beals v. Hale, 4 How. 64, 11 L. Ed. 873, holding court
not bound by State decision not in the court of last resort; Burgess ▼.
Seligman, 107 U. S. 34, 27 L. Ed. 365, 2 Sup. Ct. 22, holding where State
law has not been settled, Federal courts may exercise their own judgment;
Vaughan v. Phebe, 1 Mart. & Y. 24, 17 Am. Dec. 779, holding judgment
of another State as to freedom of slave not binding.
Questions of State law as to which State court decisions must be fol-
lowed in actions originating in, or removed to. Federal courts. Note,
40 L. B. A. (N. 8.) 447.
Estoppel by record. Note, 11 E. R. 0. 16.
Miscellaneous. Cited in Blanchard v. Sprague, 1 Cliff. 290, Fed. Cas.
1616, to point that in trials at law, laws of State furnish rules of evidence
in Federal tribunals ; Low v. Commissioners of Pilotage, Charit. (Ga.) 311,
apparently not in point.
\
6 Wheat. 12S, 5 L Ed. 223, BANDOU^ v. BABBOTJB.
Rules of court. Note, 41 Am. St. Rep. 640.
Practice and procedure governing transfer of causes to Federal
Supreme Court for review. Note, 66 L. R. A. 850.
6 Wheat. 129-130, 6 L. Ed. 223, BIAYHEW v. THATCHER.
Unless either of parties demands jury, in action on judgment, interest on
original judgment may be computed without writ of inquiry.
Cited in Farrelly v. Cross, 10 Ark. 410, holding issue of nul tiel record
can be tried alone by the court; Tannehill v. Thomas, 1 Blackf. (Ind.) 145,
holding in action on note damages may be assessed by the court.
Appearance of party cures any objection to proceedings in attadunent.
Cited in State v. Richmond, 26 N. H. 242, holding, where selectmen had
jurisdiction of subject matter, irregularity in proceedings could be waived
by parties; Campbell v. Wilson, 6 Tex. 393, holding^onresident appearing
in attachment suit waives right to object to jurisdiction.
Record of judgment in one State is conclusive in another, though suit conft-
menced by attachment, defendant afterward having appeared.
Cited in Insurance Co. v. Harris, 97 U. S. 336, 24 L. Ed. ^62, following
rule; Taylor v. Carpenter, 2 Wood. & M. 4, Fed. Cas. 13,785, holding an
*' exemplified copy" is competent evidence of a judgment; Mills v. Stewart,
12 Ala. 95, holding if form of record of court does not indicate a limited
jurisdiction, presumption favors its jurisdiction ; Mitchell v. Ferris, 5
Houst. 40, holding jurisdiction of court rendering judgment may be inquired
into; Whiting v. Burger, 78 Me. 294, 4 Atl. 696, holding judgment in New
York is bar to action in Maine commenced first; Pepin v. Lachenmeyer, 45
1083 FARMERS & MECHANICS' BANK v. SMITH. 6 Wheat. 131-135
N. Y. 29, holding certified copy of judgment is prima facie evidence of
acts of the court therein; Carter v. Wilson, 1 Dev. & B. 365, holding only
proper plea to record of one State pleaded in bar in another is nul tiel
record; Bennett v. Morley, 10 Ohio, 103, holding under plea of nul tiel
record to judgment of sister State, evidence is not admissible to show
one of the defendants was not in fact served ; Miller v. Miller, 1 Bail. 249,
holding jurisdiction of court rendering judgment may be inquired into;
Hoxie v. Wright, 2 Vt. 268, under facts similar to principal case; Black
V. Smith, 13 W. Va. 793, holding validity of judgment rendered in another
State by court with jurisdiction cannot be inquired into here.
Distinguished in Hill v. Bowman, 14 La. 446, holding, under code, pro-
ceedings by attachment are in rem and in personam also; Choppin v.
Harmon, 46 Miss. 307, refusing to enforce foreign judgment against mar-
ried woman, where no separate property was pointed out from which to
satisfy it; Judkina ^. Insurance Co., 37 N. H. 477, holding nil debet is
a good plea in action of debt upon a judgment rendered in another State;
Price V. Hickok, 39 Vt. 301, holding judgment in another State against
nonresident, not served in that State nor appearing, cannot be enforced
here.
Miscellaneous. Cited in Sumner y. Marcy, 3 Wood. & M. 115, Fed. Cas.
13,609.
6 Wheat. 131-135, 5 Lr Ed. 224, FABM£BS ft MSOHAKIOS' BANK ▼. SMITH.
State Insolvent law discharging debtor ftom pre-existing contract is nn-
eonstitatlonal; it is immaterial that suit brought in court of State of which
both parties were citizens, where contract was made and disdiarge obtained.
Approved in In re Salmon, 143 Fed. 405, Missouri Rev. Stats. 1899,
§§ 1305, 1306, relating to liquidation of banks, was suspended by bank-
ruptcy act, and participation of creditors in proceedings thereunder did not
estop them from proceeding in bankruptcy against debtors; Merrill v.
Bowler, 20 R. I. 231, 38 Atl. 116, holding Gen. Laws, c. 274 (R. I.), pro-
viding for distribution of insolvent's estate without jury trial of validity
of claims, is constitutional; Boviard etc. Co. v. Ferguson, 215 Pa. 239, 64
Atl. 514, arguendo; dissenting opinion in Ogden v. Saunders, 12 Wheat.
333, 6 L. Ed. 647, majority holding State insolvent law discharging debtor's
person and future debts, valid ; Cook v. Moffat, 5 How. 308, 316, 12 L. Ed.
166, 169, holding debt in New York not discharged by insolvent laws of
Maryland, though passed prior to its contraction ; Planters ' Bank v. Sharp,
6 How. 328, 330, 12 L. Ed. 459, holding law forbidding banks to transfer
notes by indorsement or otherwise is unconstitutional; WoodhuU v. Wagner,
1 Bald. 298, 301, Fed. Cas. 17,975, holding discharge under insolvent law
of one State does not protect debtor from arrest for debt in another State ;
Byrd v. Badger, McAll. 265, Fed. Cas. 2265, holding discharge under insol-
vent law of a State cannot be pleaded in bar of action on foreign contract;
Newton v. Hagerman, 10 Sawy. 462, 22 Fed. 526, holding a discharge under
a State insolvent law is no bar to an action by a citizen of another State,
who did not api)ear or take part in the insolvency proceedings; as also
6 Wheat. 136-146 NOTES ON U. S. REPORTS. 1084
in Towne v. Smith, 1 Wood, k M. 128, 130, Fed. Gas. 14,115 ; In re Klein,
14 Fed. Gas. 723 (reversed, 1 How. 278), holding act of Gongress dis-
char^j^ing debtor from pre-existing debts unconstitutional; Woodbridge v.
Wright, 3 Gonn. 527, holding discharge in one State does not operate
against creditor in another; Deering v. Boyle, 8 Kan. 535, 12 Am. Bep.
489, holding statute exempting married woman's separate estate does not
apply to note previously given ; dissenting opinion in Doughty v. Sheriff, 27
La. Ann. 360, majority holding homestead law exempting from pre-existing
debts valid; Orr v. Lisso, 33 La. Ann. 477, holding foreign creditors sub-
ject to insolvency law; Savoye.v. Marsh, 10 Met. 596, 43 Am. Dec. 453,
holding discharge of makers and indorsers under our laws no bar to action
by foreign indorsees; Marsh v. Putnam, 3 Gray, 556, holding certificate
of discharge is a bar to an action on contract between citizens of this
State to be performed elsewhere; Stevens v. Bowen, 49 Miss. 599, holding-
State may pass insolvent laws operating on future contracts; Hicks v.
Hotchkiss, 7 Johns. Gh. 313, 11 Am. Dec. 483, holding insolvent act not
a bar to foreign debt; Hoyt v. Thompson, 5 N. Y. 349, holding action may
be maintained on chose in action assigned by a foreign insolvent corpora-
tion; Herring v. Selding, 2 Aiken, 17, holding insolvent laws attempting
to discharge contracts void, though contracts be subsequent; Eiiton v.
O'Gonnor, 6 N. D. 6, 33 L. R. A. 52G, statute unconstitutional as to prior
creditors, and the acceptance of a dividend by them no waiver; Merrill
v. Bowler, 38 Atl. 116, affirming power of States tQ estltblish insolvency
laws in absence of Federal act.
Distinguished in Hundley v. Ghaney, 65 Gal. 363, 4 Pac. 238, where sub-
sequent act was an amendment favoring creditor; Boardman v. De Forest, 5
Gonn. 12, holding certificate of discharge could not be granted on judg-
ment after petition on previously existing debt; Hardeman v. Downer,
39 Ga. 428, holding homestead law constitutional ; Pugh v. Bussel, 2 Blackf .
(Ind.) 399, holding foreign creditor may sue debtor discharged here, but
cannot imprison him.
6 Wlieat. 136-146, 6 I.. Ed. 225, T7NITED STATES ▼. WILKINS.
Under act of 1797, .defendant Is entitled to benefit of any credit in lila
favor constituting setoff against United States.
Approved in Smyth v. United States, 188 U. S. 173, 47 L. Ed. 481, 23
Sup. Gt. 284, holding on suit against superintendent of mint for loss of
money by fire, identified charred notes cannot be allowed as a credit;
United States v. Gillies, 144 Fed. 991, in action by United States to recover
alleged debt, defendant cannot recover afi&rmative judgment against gov-
ernment on counterclaim, although it may be determined that there is bal-
ance due him ; United States v. Hart, 2 Ariz. 418, 419, 19 Pac. 5, 6, holding
purchase of supplies by order of commissioners of Indian affairs, and per-
formance of certain services, and incurring of certain expenses, all in
proper account with vouchers presented to and rejected in whole or in part
by accounting officers, is proper setoff in suit by government; United States
v. Ripley, 7 Pet. 25, 8 L. Ed. 596, holding allowance should be made for
\
1085 UNITED STATES v. WILKINS. 6 Wheat. 135-146
disbursements and services not ordinarily attached to the office ; as also m
United States v. Pillebrown, 7 Pet. 48, 8 L. Ed. 603; United States v.
Hawkins, 10 Pet. 133, 9 L. Ed. 372, holding defendant may have his credits
submitted to a jury at the trial if they have been refused by treasury
officers ; Gratiot v. United States, 15 Pet. 370, 10 L. Ed. 771, allowing com-
missions for disbursing public moneys, and extra services to be set off;
United States v. Buchanan, 8 How. 105, 12 L. Ed. 1006, refusing to allow
purser to set up losses arising from wrongs or torts done; Watkins v.
United States, 9 Wall. 765, 10 L. Ed. 822, holding claims cannot be set off
except in certain cases, unless they have been disallowed; United States
v. Flanders, 112 U. S. 93, 28 L. Ed. 632, 5 Sup. Ct. 70, allowing revenue
collector to set off money paid for advertising; United States v. Collier,
3 Blatchf. 350, Fed. Cas. 14,833, holding officer sued by United States can
set off all equitable demands disallowed by proper officials; United States
V. Mann, 2 Brock. 12, Fed. Cas. 15,716, holding officer of United States
who has levied on money on an execution in favor of the government may
retain it by way of setoff; United States v. Buchanan, Crabbe, 577, Fed.
Cas. 14,678, allowing unliquidated damages arising from torts to be set off
against a govemtaent claim; Yates v. United States, 90 Fed. 62, collecting
authorities and applying rule, holding mere suspension of action on a claim
not a disallowance; Andrews v. United States, 2 Story, 208, Fed. Cas. 381,
holding collector entitled to compensation for rent, clerk, etc., though he
did not transmit yearly account" for same; United States v. Patrick, 73
Fed. 807, 36 U. S. App. 645, holding government agent not liable for
property which careless clerk omits from a return ; United States v. North
American Com. Co., 74 Fed. 153, holding clainjs not presented to secretary
of treasury cannot be set off; so also in United States v. Wade, 75 Fed.
266 ; Powers v. Central Bank, 18 Ga. 661, holding attorney may retain money
sufficient to satisfy his claim; State v. Dennison, 84 N. Y. 281, holding
State by coming into court does not subject itself to an affirmative judg-
ment upon a setoff.
Distinguished in Gratiot v. United States, 4 How. 112, 11 L. Ed. 899,
refu,sing to allow commission where officer received money and held same
until it could be paid to agent; Browne v. United States, 1 Curt. 21, Fed.
Cas. 2036, holding extra compensation cannot be allowed to an officer
because he has disbursed public money outside of his official duties ; United
States V. Hall, 2 Dill. 427, Fed. Cas. 15,284, holding courts cannot make
allowance for items which secretary of the treasury has rejected; United
States V. Smith, 1 Wood. & M. 194, Fed. Cas. 16,346, holding a marshal is
not entitled to commissions on money paid to deputies, it being part of
liis official duty; Raymond v. State, 54 Miss. 565, 28 Am. Rep. 384, holding
defenses growing out of recoupment cannot be set up in suit against State ;
State V. Corbin, 16 S. C. 542, and Moore v. Tate, 87 Tenn. 740, 10 Am. St.
Rep. 721, 11 S. W. 938, holding individual cannot interpose a setoff in action
against him by State ; as also in Borden v. Houston, 2 Tex. 610, 611, where
action brought by Republic of Texas.
Setoff, counterclaim or recoupment in action by State. Note, 33
L. B. A. (N. S.) 380.
\
6 Wheat. 146-162 NOTES ON U. S. REPORTS. 1086
^ ■;. Price not being settled in contract, a reasonable compensation is allewed.
Cited in dissenting opinion in Sun Mut. Ins. Co. v. Wright, 23 How. 420,
16 L. Ed. 532, majority holding policy was not binding where insured had
not paid the additional premium to be fixed by the underwriter ; Humaston
V. Telegraph Co., 20 Wall. 28, 22 L. £d. 281, holding if person breaks agree-
ment to submit to arbitrators, value may be ascertained by a jury.
Miscellaneous. Cited in Smedes v. Utica Bank, 20 Johns. 384.
6 Wheat. 146-152, 5 L Ed. 228, YOXTNG v. BBYAN.
Circuit Court has jurisdiction of suit by indorsee, dtisen of one 8tat6w
against indorser, citizen of another.
Approved in Kolze v. Hoadley, 200 U. S. 83, 50 L. Ed. 381, 26 Sup. Ct.
220, suit by assignee to foreclose trust deed is not maintainable in Federal
court unless assignor could sue there, though bill prays cancellation of
release of trust deeds to grantor as in fraud of complainant's rights; Fair
V. Hobe-Peters Land Co., 188 Fed. 16, 110 C. C. A. 160, jurisdiction of
action by assignee of promissory note sustained, though all initermediate
assignees could not have sued in Federal court; Hoadley v. Day, 128 Fed.
304, upholding Federal jurisdiction over suit to foreclose trust deed secur-
ing accommodation notes; Evans v. Gee, 11 Pet. 83, 9 L. Ed. 641, following'
rule; Phillips v. Preston, 5 How. 291, 12 L. Ed. 157, holding this court
has jurisdiction of suit brought by first indorser against second indorser,
on independent contract to divide loss, though second indorsee and defend-
ant be citizens of same State; Coffee v. Planters' Bank, 13 How. 187, 14
L. Ed. 106, holding this court has jurisdiction of action by corporation of
one State, indorsee, against Immediate indorser, citizen of another State ;
Superior City v. Ripley, 138 U. S. 96, 34 L. Ed. 916, 11 Sup. Ct. 289, apply-
ing same rule to acceptor and payee; Campbell v. Jordan, Hempst. 535,
Fed. Cas. 2362, holding indorsee, a citizen of another State, may sue his
immediate indorser in this State, whether maker is suable in such court
or not ; Towne v. Smith, 1 Wood. & M. 119, 120, Fedy Cas. 14,115, holding
Circuit Court has jurisdiction of action by holder against maker, where
note was payable to bearer and passed by delivery; Vamer v. West, 1
Woods, 495, Fed. Cas. 16,885, holding same where note payable to bearer
was indorsed by payee; Brown v. Hull, 33 Gratt. 29, holding indorsement
of overdue note is an independent contract.
Distinguished in Mollan v. Torrance, 9 Wheat. 538, 6 K Ed. 154, holding
where suit is against remote indorser, plaintiff must show intermediate in-
dorser could have maintained the action there; Keary v. Bank, 16 Pet.
95, 10 L. Ed. 899, where maker, a citizen of same State as payee, was
joined, the action could not be maintained; Parker v. Ormsby, 141 U. S.
85, 35 L. Ed. 656, 11 Sup. Ct. 913, holding Circuit Court has no jurisdiction
of suit by assignee against maker, unless payee could have maintained it
there; Shuford v. Cain, 1 Abb. (U. S.) 307, Fed. Cas. 12,823, holding where
payee could not maintain action in Circuit Court against maker, his indorsee
cannot; Hill v. Winne, 1 Biss. 277, Fed. Cas. 6503, holding court had no
jurisdiction of bill by assignee of mortgage, where mortgagor and mort-
1087 THE BELLO CORRUNES. 6 Wheat. 152-176
gagee are citizens of the same State; Noell v. Mitchell, 4 Biss. 348, Fed*
Cas. 10,287, holding court had no jurisdiction where it did not appear by
averment that indorser and plaintiff were citizens of a different State than
defendant; Milledollar v. Bell, 2 Wall. Jr. 337, Fed. Cas. 9549, holding
court had jurisdiction of suit by remote indorser if mortgagee could have
maintained it.
Distinguished in Emsheimer v. New Orleans, 186 U. S. 46, 46 L. Ed. 1048,
22 Sup. Ct. 775, holding if payee of police warrants could maintain suit
in Circuit Court on ground of diverse citizenship, assignee can maintain
suit.
Protest Is not required by the common law on promissory note.
Approved in Presbrey v. Thomas, 1 App. D. C. 181, official protest of
promissory note not necessary to hold indorsers under statute allowing
notaries to make demand and protest ; Waples-Painter Co. v. Bank of Com-
merce, 6 Ind. Ter. 330, 97 S. W. 1026, demand and notice sufficient to hold
indorser of promissory note. Ho formal protest being required by statute;
Burke v. McKay, 2 How. 71, 11 L. Ed. 183, following rule; Bay v. Church,
15 Conn. 17, 18, protest is not necessary to charge indorser of promissory
note made in one State and payable in another; Johnson v. Bank, 29 Ga.
260, not allowing notarial expenses where protest was not required; Kas-
kaskia Bridge Co. v. Shannon, 1 Gilm. (111.) 24, holding notarial protest
is not evidence, in case of inland bill, of demand of payment; Carter v.
Burley, 9 N. H. 565, holding that a protest is not competent evidence of
the dishonor of an inland bill of exchange; Coddington v. Davis, 3 Denio,
22, holding indorser may make a valid agreement to waive presentment
and notice; Ashe v. Beasley, 6 N. D. 193, holding protest not evidence of
dishonor of a note; Brown v. Wilson, 45 S. C. 530, 55 Am. St. Rep. 782,
23 S. E. 633, holding protest is not necessary to promissory notes; as also
in Corbin v. Planters' Nat. Bank, 87 Va. 64, 24 Am. St. Rep. 675, 13 S. E.
99.
Distinguished in Simpson v. White, 40 N. H. 543, holding under statute
protest is evidence in all cases.
Protest of negotiable instruments. Note, 43 Am. Dec 219.
Protest as evidence. Note, 96 Am. Dec. 603.
6 Wheat. 162-176, 6 Ii. Ed. 229, THE BELLO OOBBUNEa
Foreign consul may Intervene In prize cases where property of Individuals
of his nation la involved. ^
Approved in Carpiginani v. Hall, 172 Ala. 291, Ann. Oas. 1913D, 661,
55 South. 250, consul may intervene to cause removal of administrator de-
spoiling estate of deceased citizen of his own country; In re D'Adamo's
Estate, 212 N. Y. 223, L. R. A. 1915D, 377, 106 N. E. 84, consul may inter-
vene to preserve derelict estate of countrymen dying in foreign lands, but
may not be appointed administrator in preference to brother of 'deceased;
The Elizabeth, Blatchf . Pr. 253, Fed. Cas. 4360, under similar facts, follow-
ing rule; The Ship Adolph, 1 Curt. 89, Fed. Cas. 86, holding foreign consul
6 Wheat. 204^-235 NOTES ON U. S. REPORTS. 1090
Approved in First Nat. Bank v. State Nat. Bank, 131 Fed. 431, 65 C. C. A.
414, where appeal has been perfected under bankruptcy act from judgment
allowing or rejecting debt, District Court cannot entertain motion for re-
hearing while appeal is pending; The William Bagaley, 5 Wall. 412, 18
L. Ed. 591, holding those not parties in lower court and who are neither
appellants nor appellees cannot be heard as interveners; The Lottawanna,
20 Wall. 225, 22 L. Ed. 264, following rule; The '' Wanata," 95 U. S. 617, 24
L. £d. 466, holding appeal in admiralty carries up the whole fund ; Davis v.
The Seneca, Gilp. ,40, Fed. Cas. 3651, h9lding, after appeal. District Court no
longer has control of prize ; The Phebe, 1 Ware, 361, Fed. Cas. 11,065, hold-
ing when vessel is in custody of the law wharfinger cannot enforce his lien
by detaining vessels; Folger v. The Robert G. Shaw, 2 Wood. & M. 540,
Fed. Cas. 1899, holding after appeal to Circuit Court no order about the
property can be made in District Court; Braithwaite v. Jordan, 5 N. D.
252, 31 L. B. A. 259, 65 N. W. 720, holding action on appeal bond, not being
integral of original action, would lie in lower court.
Distinguished in The Peterhoff, Blatchf . Pr. 622, Fed. Cas. 11,025, hold-
ing appeal to Supreme Court places the property under the control of that
court.
6 Wlieat. 204-236, 5 L. Ed. 242, ANDBB80N V. DUNN.
Many poii^ers are necessarily implied under express grants of powers in
the Constitution.
Cited in Ex parte Henderson, 6 Fla. 294, holding Circuit Courts are not
confined to cases of original jurisdiction; Opinion by the Chief Justice,
8 Fla. 511, holding Supreme Court can act through a majority of its mem-
bers ; dissenting opinion in Griswold v. Hepburn, 2 Duv. (Ky.) 61, majority
holding Congress and the States are forbidden to make currency a legal
tender; Metropolitan Bank v. Van Dyck, 27 N. Y. 430, holding contra to
preceding case ; Casey v. State, 25 Tex. 386, holding contempts are not crim-
inal cases, though of a criminal nature.
Denied in State v. Guilbert, 75 Ohio St. 45, 78 N. £. 935, Senate has no
inherent power to appoint investigating committee.
•
Oourts have power to Impose decorum In their presence, and submlwrion
to their lawful mandates.
Approved in In re Maury, 205 Fed. 629, 123 C. C. A. 642, Federal Dis-
trict Court had jurisdiction to punish attorney for contempt in making
statements reflecting upon jury; Elreplik v. Couch Patents Co., 190 Fed.
572, 111 C. C. A. 381, in contempt proceedings for disregarding injunction
to prevent infringement of patent rights, court may exercise two functions,
one civil and remedial, other criminal, to punish- disobedience; Atwell
V. United States, 162 Fed. 101, 15 Ann. Gas. 253, 17 L. B. A. (N. 8.) 1049,
89 C. C. A. 97, power ef Federal courts to punish for contempt is limited
by statute, and grand juror not subject to punishment for contempt for
disclosing proceedings in grand jury-room after grand jury discharged;
Ripon Knitting Works v. Schreiber, 101 Fed. 813, holding failure of
bankrupt to surrender to trustees his property is a contempt of court;'
1091 ANDERSON ▼. DUNN. 6 Wheat. 204-236
United States ▼. Sweeney, 95 Fed. 450, holding violation of injunction is
a contempt; In re Gompers, 40 App. D. C. 323, contempt proceedings not
strictly civil or criminal, but belong to class of actions inherent in all
courts, and Federal statute does not confer jurisdiction, but merely limits
court's power to punish; Ex parte Roper, 61 Tex. Cr. 86, 134 S. W. 343,
act authorizing injunction to prevent sale of liquor in district prohibiting
such sale not invalid as den3dng right of trial by jury, as this right has
never ijeen exercised in contempt proceedings; Ex parte Terry, 128 U. S.
303, 32 L. Ed. 408, 9 Sup. Ct. 70, also reported in 13 Sawy. 460, holding
Circuit Courts can punish contempts of their authority, as incidental to
their general powers; Eilenbecker v. Plymouth Co., 134 U. S. 36, 33 L. Ed.
803, 10 Sup. Ct. 426, holding District Court can punish disobedience of
injunction restraining one from selling liquor; Interstate Commerce Com-
mission V. Brimson, 154 U. S. 489, 38 L. Ed. 1061, 14 Sup. Ct. 113a, holding,
in matter of contempt, a jury is not required; dissenting opinion of same
case, 155 U. S. 5, 39 L. Ed. 50, 15 Sup. Ct. 20 ; In re Debs, 158 U. S. 596,
39 L. Ed. 1106, 15 Sup. Ct. 916, holding Circuit Court can punish disobedience
of injunction to remove obstructions from highways, for passage of inter-
state commerce and mails; United States v. New Bedford Bridge, 1 Wood.
& M. 440, Fed. Caa. 15,867, holding the authority to punish for contempt
is granted as a necessary incident in establishing a court; In re Lyman,
55 Fed. 42, holding unlawful ousting of District Court from its rooms to
be contempt; Ex parte Burr, 2 Cr. C. C. 391, Fed. Ca3. 2186, holding court
may inquire in a summary manner as to charges of malpractice; Towns
V. Springer, 9 Ga. 132, holding Superior Court cannot punish disobedience
to process of inferior court; Hawkins v. State, 125 Ind. 573, 25 N. E. 819,
holding Circuit Court has inherent power to punish contempt; State v.
Markuson, 5 N. D. 160, 64 N. W. 938, holding, since statute prescribing
minimum punishment for contempt, does not impair the inherent power
of courts to punish for contempts, it is valid; State v. Tugwell, 19 Wash.
252, 43 L. B. A. 723, affirming court's power to punish summarily a con<-
tempt in publishing article derogatory to member of the court.
Legislative power to abridge court's power to punish for contempt.
Note, 36 L. R. A. 255.
House of representatives has power to punish for contempt.
Approved in Stewart v. Blaine, 1 McAr. (D. C.) 458/ House of Repre-
scutatives may punish for contempt witness refusing to testify before com-
mittei ; Ex parte Parker, 74 S. C. 473, 55 S. E. 125, as to powers of l^sla-
tive committees to punish for contempt; dissenting opinion in Ex parte
Wolters, 64 Tex. Cr. 303, 304, 307, Ann. Caa. 1916B, 1071, 144 S. W. 665,
567, majority holding that witness refusing to testify before committee
appointed without authority at special session of legislature was not ob-
structing legislative proceedings and could not be punished for contempt;
Ex parte Nugent, 18 Fed. Cas. 472, 473, holding Senate has power to
punish for contempt, and is the sole judge of its own contempts ; Ex parte
McCarthy, 29 Cal. 405, holding State Senate may punish witness for re-
fusing to testify ; Smith v. Myers, 109 Ind. 7, 58 Am. Rep. 380, 9 N. E. 697^
X
6 Wheat. 204-236 NOTES ON U. S. REPORTS. 1092
holding courts cannot enjoin Secretary df State from delivering sealed
returns to Speaker of house; Langenberg v. Decker, 131 Ind. 482, 31 N. E.
194, 16 L. R. A. 113, power to punish for contempt may not be conferred
on State board of tax commissioners; dissenting opinion in Koehler v.
Hill, 60 Iowa, 675, 15 N. W. 644, majority holding determination of assem-
bly of the regularity of preliminary proceedings is not conclusive upon
the courts ; In re Gunn, 50 Kan. 211, 19 L. R. A. 535, 32 Pac. 486, House
of Representatives may imprison a contumacious witness; In re Davis,
58 Kan. 379, 380, 49 Pac. 163, holding legislative committee has no power
to imprison witness; Lowe v. Summers, 60 Mo. App. 649, holding assembly
can punish for contempt; State v. Matthews, 37 N. H. 453, holding all
legislative and judicial bodies have an inherent right to punish contempt;
People V. Keeler, 99 N, Y. 475, 476, 478, 52 Am. Rep. 53, 54, 55, 2 N. B.
620, 621, 622, holding power of legislature to punish for contempt, not
abrogated by Penal Code, dcfclaring such contempts shall be punished ac-
cording to its provisions and not otherwise; Ex parte Dalton, 44 Ohio St.
150, 151, 153, 58 Am. Rep. 801, 802, 804, 5 N. E. 138, 139, holding legislature
can imprison for contempt.
Criticised in Kilboum v. Thompson, 103 U. S. 197, 198, 199, 200, 26 L. Ed.
389, 390, holding Congress could not compel a witness to testify in an in-
vestigation, the subject matter of which was judicial, not legislative; In-
terstate Commerce Commission v. Brimson, 154 U. S. 485, 38 L. Ed. 1060,
14 Sup. Ct. 1136, holding (with few exceptions) power to compel perform-
ance of a legal duty can only be exercised by a competent judicial tribunal ;
Sanborn v. Carleton, 15 Gray, 402, holding warrant of arrest issued by
Senate of United States and addressed to the sergeant-at-arms cannot
be served in Massachusetts by a deputy; Whitcomb's Case, 120 Mass. 122,
123, 21 Am. Rep. 505, holding city council cannot punish for contempt;
F. & F. P. R. R. Co. V. WoodhuU, 25 Mich. 104, 12 Am. Rep. 236, holding
legislature, except in a few cases, cannot exercise judicial authority. Re-
ferred to in People v. Keeler, 99 N. Y. 477, 483, 52 Am. Rep. 55, 60, as
overruled by Kilboum v. Thompson, 103 U. S. 197, 26 L. Ed. 289, in so far
as asserting a general power in the house to punish for contempt and the
conclusiveness of its judgment.
Distinguished in Ex parte Wolters, 64 Tex. Cr. 255, Ann. Gas. 1916B,
1071, 144 S. W. 540, and Ex parte Wolters, 64 Tex. Cr. 330, 338, 144 S. W.
578, 582, both holding legislature has no inherent power under State 'Con-
stitution to punish for contempt witness refusing to testify before 'cAn-
mittee appointed without authority at special session.
Power of legislature or legislative committee to punish witness for con-
tempt. Note, 7 Ann. Gas. 877. '"
General powers and privileges of investigating committee. Note, Amu
Gas. 1916B, 1055, 1063, 1064.
Imprisonment for contempt by leglslatiTe body terminates with tbe ad-
journment.
Approved in Chapman v. United States, 8 App. D. C. 314, witness refus-
ing to testify before Senate investigating committee cannot be imprisoned
1093 NOTES ON U. S. REPORTS. 6 Wheat. 236-264
after Senate adjourns; Whittem v. State, 36 Ind. 216, holding imprisonment
for contempt must be for a definite time; In re Davis, 58 Kan. 380, 49
Pac. 163, holding- legislative committee cannot imprison witness; Hovey
V. Elliott, 145 N. Y. 137, 39 L. R. A. 460, 39 N. E. 843, holding statute limits
modes of punishment for, to modes there specified.
Contempt, relief by party convicted of — ^Appeal or writ of error.
Note, 22 Am. St. Rep. 425.
Miscellaneous. Cited in Thaw v. Ritchie, \ Mackey (D. C.)y 384, to poiiffc
that principles of prior cases may be overruled when found incorrect;
note to In re Barry, 136 U. S. 608, 34 L. Ed. 507, 42 Fed. 121, Fed. Cas.
1059y and in the opinion of Betts, J., In the Matter of Barry, that where
Federal courts have been given jurisdiction by statute, the remedies are
to be according to the common law. Miscited in Jones v. CuUeUi 100 Tenn.
19.
6 Wbeat. 235-239, 4 L. Ed. 249, IaA. OONOEPTION.
New proofs taken In an admiralty case on appeal
Cited in Folger v. The Robert G. Shaw, 2 Wood. & M. 540, 541, Fed.
Cas. 4899, holding after case is entered in appellate court, and appellant
declines to prosecute, court should give judgment on the merits,
6 Wheat. 240-260, 5 L. Ed. 251, WILUNKS ▼. HOZJUKG^WOBTH.
Consignor of cargo taken and sold by consignee, who In turn cooslgns cargo
to consignor, who, althougb objecting to porckase, receives and sells It, Is Uable
to snch consignee In action for money had and received and may not recoup
damages for breach di his orders. •
Approved in Bryne v. Doughty, 13 Ga. 53, holding an adoption of trans-
action by principal may arise by implication; Newton v. Bronson, 13
N. T. 594, 67 Am. Dec. 93, holding that executor may ratify contract by
agent.
Miscellaneous. Cited in Jameson's Appeal, 1 Mich. 103, apparently not
in point; State v. Crocker, 5 Wyo. 398, 40 Pac. 684, as an illustration
that certificate of division does not remove the original cause to higher
court
6 Wheat. 26<K264, 5 L. Ed. 256, GBEEN ▼. WATKIKS.
At common law, death of party before Judgment abates the suit.
Approved in Welch v. Lynch, 30 App. D. C. 137, surviving husband en-
titled to possession of premises as tenant by curtesy has no right to con-
tinue action of ejectment commenced by wife and abated by her death;
Danenhower v. Ball, 8 App. D. C. 141, action not saved from abatement
after death of plaintiff where time limited by statute for substitution of
new party plaintiff had expired; Porco v. State Board of Barber Exam-
iners, 7 Cal. Unrep. 158, 73 Pac. 168, action to compel board of barber
examiners to issue license abates when act creating board is repealed and no
6 Wheat. 26(^264 NOTES ON U. S. REPORTS. 1094
successor appointed ; People v. Western Life Indemnity Co., 261 111. 515, Ann.
Oas. 1915A, 266, 104 N. E. 219, mandamus proceeding pending appeal abates
by death of relator; Hayford v. Municipal Officers, 103 Me. 437, 69 AtL 689,
appeal from estimate of damages for taking of property for public use abates
by death of appellant, where no statute provides for survival of such action ;
Macker v. Thomas, 7 Wheat. 531, 532, 5 L. Ed. 515, 516, where deceased party
never appeared ; Martin v. Baltimore & O. R. R. Co., 151 U. S. 697, 702, 38
L. Ed. 320, 322, 14 Sup. Ct. 542, 544, holding, as under West Virginia code,
personal tort does not survive, death of party pending writ of error abates
the action; Currell v. Villars, 72 Fed. 332, holding real action in equity
abated at party's death; Gould v. Carr, 33 Fla. 537, 24 L. R. A. 136, 15
South. 264, so does a real action in law; as also in Hoffman v. St. Clair
Judge, 40 Mich. 352.
Distinguished in Bruiletts Creek Coal Co. ▼. Pomatto, 172 Ind. 291, 88
N. E. 608, under statute plaintiff's death after granting and perfecting
of term-time appeal did not abate action; Electric Welding Co. v. Prince,
195 Mass. 260, 81 N. E. 312, under statute providing that personal action
survives to executor or administrator, court may order defendant's exec-
utor to appear; Melius v. Thompson, 1 Cliff. 129 Fed. Cas. 9405, because
death of party to a bill in equity does not extinguish the right of further
prosecution.
Death of party pending writ of error, wbether before or after assignment
of error, does not abate suit.
Approved in McCowan v. Brooks, 113 GtL. 387, 39 S. E. 113, following
rule ; Marck v. A. Lodge, 29 Fed. 896, holding death of party did not abate
appeal; United States M. A. A. v. Weller, 30 Fla. 215, 11 South. 787, hold-
ing subsequent marriage of female defendant did not 'abate writ of error;
Carroll v. Bowie, 7 Gill. 38, death after rule for reargument was entered
did not abate cause; Coombs v. Jordan, 3 Bland Ch. 328, 22 Am. Dec. 275,
holding lien was continued during appeal, though party had died; Long v.
Thompson, 34 Or. 362, 55 Pac. 979, affirming and following the rule; Tunstall
V. Walker, 2 Smedes & M. 686, refusing petition for reargument, where party
died after case was taken under advisement; Philhower v. Yoorhees, 12
N. J. L. 69, holding appeal is not abated by marriage of appellee ; Bemus v.
Beekman, 3 Wend. 673, holding on death of party to writ of error, judgment
is entered nunc pro tunc; Gibbs v. Belcher, 30 Tex. 85, holding death does
not abate a writ of error. .
Distinguished in Martin v. Baltimore & O. R. R. Co., 151 U. S. 697, 710,
38 L. Ed. 320, 324, 14 Sup. Ct. 542, 544, holding under law of West Vir-
ginia, death of party pending writ of error abates action for personal tort ;
Harryman v. Harryman, 49 Md. 70, holding where party dies before appeal
is taken, action abates.
New parties, how jurisdiction over may be acquired. Note, 50 Am. St.
Bep. 742.
Death of j^arty produces no change in tlie condition of cause or lights of
parties.
\
1095 COHEN V. VIRGINIA. 6 Wheat. 264-448
Cited in Hatfield v. Bushndl, 1 Blatchf. 396, Fed. Cas. 6211, 22 Vt. 661,
holding death of party will not divest court of jurisdiction.
Writ of error does not abate by death of party, at common law, and his
personal representatlTes not only may beconie parties, but may be required to.
Approved in In re Connaway, Receiver of Moscow Nat. Bank, 178 U. S.
434, 435, 44 L. Ed. 1139, 20 Sup. Ct. 956, holding executor may be sub-
stituted as party by scire facias, under United States Rev. Stats., § 955 ;
Smith V. Stillwell, 9 Ariz. 227, 80 Pac. 333, writ of error in personal action
can only be brought by personal representative of deceased; Merwin v.
Merwin, 75 Conn. 10, 52 Atl. 614, holding rule that action, of ejectment
abates by death of defendant is not changed by Acts 1848, § 2 (Conn.) ;
Long V. Thompson, 34 Or. 362, 55 Pac. 979, holding death of party does
not abate appeal under Or. Code Civ. Proc, § 38 ; Poole v. Nixon, 19 Fed.
Cas. 1001, 9 Pet. App. 770, 9 ti. Ed. 310, holding a bill of review lies only
in favor of a party or privy to the original suit ; Townsend v. Davis, 1 Ga.
496, 44 Am. Doc. 676, holding no person can bring writ of error to reverse
judgment who was not a party or a privy to the record, or prejudiced by
the party; New Orleans etc. R. R. Co. v. Rollins, 36 Miss. 387, holding
writ of error lies against administrator without revivor; Foresman v.
Haag, 37 Ohio St. 145, holding proceedings in error may be revived against
representatives of deceased d.efend^nt; Wood v. Yarbrough, 41 Tex. 542,
holding writ of error will only issue at instance of party, his legal repre-
sentative, or privy.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 856.
Miscellaneous. Cited in Nalle v. Oyster, 230 IT. S. 176, 57 L. Ed. 1443,
33 , Sup. Ct. 1043, exception to an error apparent on face of record not
necessary to bring ruling of District Court up for review in Court of Ap-
peals of District of Columbia; Chicago Great Western R. Co. v. Le Valley,
233 Fed. 386, clerk of court cannot make exceptions part of record and
reviewable by writing them into journal of proceedings without certiRcate
and signature of trial judge; Planters' Bank v. Bass, 2 La. Ann. 434, as
an instance of where a court exercised inherent power; Dorman v. Richard,
1 Fla. 296, defining nature of a writ of error.
6 Wheat. 204^448, 5 I.. Ed. 257, OOHEN v. VIBOINIA.
Judicial power of the TTnlted States extends to controTersieB between
States.
Approved in State of Kansas v. State of Colorado, 206 U. S. 83, 51 L. Ed«
969, 27 Sup. Ct. 655, upholding original jurisdiction of United States Su-
preme Court over suit by Kansas against Colorado to determine rights to
flow of water in Arkansas River; Commonwealth of Virginia v. State of
West Virginia, 206 U. S. 317, 51 L. Ed. 1079, 27 Sup. Ct. 732, Virginia may
sue West Virginia in United States Supreme Court to determine amount
of public debt assumed by latter when created State; Rhode Island v.
Massachusetts, 12 Pet. 720, 727, 0 L. Ed. 1259, 1261, holding Supreme Court
6 Wheat. 264-448 NOTES ON U. S. REPORTS. 1096
has jurisdiction of controversy, as to boundaries between States; Texas ▼.
Lewis, 14 Fed. 66, holding Congress may confer ux)on Circuit Court juris-
diction of case by State against an alien.
Distinguished in State ex rel. v. Doyle, 40 Wis. 200, 203, 215, holding
a Circuit Court has no jurisdiction of suit by foreign corporaton to pre-
vent a State officer from revoking a license.
Spirit and meaning of the Oonatltallon must be collected from the words.
Approved in The Cherokee Nation v. Georgia, 5 Pet. 42, 8 L. Ed. 40,
holding Cherokee Nation is not a "foreign State" within the meaning of
that term in the Constitution ; Rhode Island v. Massachusetts, 12 Pet. 722,
723, 748, 9 L. Ed. 1260, 1270, holding where no exception is made in terms
none will be by implication ; Ames v. Kansas, 111 U. S. 471, 28 L. Ed. 490,
4 Sup. Ct. 448, holding suits not required to be brought originally in Su-
preme Court may be removed from State to^ Circuit Courts ; United States
V. Kendall, 5 Cr. C. C. 247, Fed. Cas. 15,517, holding Circuit Court of the
District of Columbia has jurisdiction of cases arising under Federal law or
Constitution if either party resides or is found therein ; Gittings v. Crawford,
Taney, 3, 9, Fed. Cas. 5465, holding grant of jurisdiction to one court does
not imply that it is exclusive; Lafayette etc. R. R. Co. v. Geiger, 34 Ind.
212, declaring that Constitutions are to be construed strictly.
The People made Constitution and can unmake it; but this power to un-
make resides In whole body not In any suhdivlsion of people.
Cited in Noble v. Cullom, 44 Ala. 565, holding since Constitution of
1865 was never submitted to the vote of the people, it was never the Con^
stitution of Alabama ; Mayor etc. of Mobile v. Dargan, 45 Ala. 317, holding
municipal charter may be altered by legislature, and by the Constitution;
Ex parte Selma R. R., 45 Ala. 726, 6 Am. Rep. 726, holding legislature has
power to authorize a county to subscribe for stock in a railroad company;
Ex parte Reid, 50 Ala. 443, holding right to office is determined by num-
ber of votes cast, and not by the certificate of election ; Opinion of Randall,
12 Fla. 683, holding resignation of senators or their expulsion cannot have
the effect of creating a quorum composed of less than the majority elected ;
Wanser v. Hoos, 60 N. J. L. 525, 64 Am. St. Bep. 602, 38 Atl. 450, holding
construction of Constitution is a judicial question; dissenting opinion in
Eakin v. Raub, 12 Serg. & R. 358, ai^uendo.
Federal courts have Jurisdiction of cases arising under laws of TTnited
States, even when State is party and proceeding is writ of error to State court.
Approved in Muskrat v. United States, 219 U. S. 358, 55 L. Ed. 251, 31
Sup. Ct. 250, jurisdiction of Supreme Court to determine legality of laws
allotting Indian lands before case arises cannot be R^iven by Congress;
Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 506, 507, 54
L. Ed. 303, 30 Sup. Ct. 184, action to enjoin interstate carriers from en-
forcing unreasonable rates must be brought in district where plaintiff or
defendant resides ; St. Louis etc. Ry. Co. v. Taylor, 210 U. S. 292, 52 L. Ed.
1066, 28 Sup. Ct. 616, Supreme Court will review decision of State court
involving construction of Federal statute concerning safety appliances in
1097 COHEN V. VIRGINIA. 6 Wheat. 264-448
interstate commerce ; Saner v. City of New York, 206 U. S. 546, 51 L. Ed.
1181, 27 Sup. Ct. 686, abutting owner having no easement under New York
statute cannot complain that property was taken without due process of
law by erection of elevated railway; Kentucky v. Powers, 201 U. S. 38,
50 L. Ed. 650, 26 Sup. Ct. 387, denial in summoning or impaneling jurors
of any civil rights secured to accused by Federal law does not, unless
authorized by State law, g^ve right to remove prosecution to Federal court ;
Kardo Co. v. Adams, 231 Fed. 954, citizenship of parties immaterial where
Federal court has jurisdiction of subject matter, patents ; Alabama etc. Ry.
Co. V. American Cotton Oil Co., 229 Fed, 19, shipper's action for nonde-
livery of shipment involving amendment to Interstate Commerce Act is
case under laws of United States; Cleveland etc. Ry. Co. v. Hirsch, 204
Fed. 851, 123 C. C. A. 145, contract by interstate carrier to lease property
at less than rental value in return for shipments amounts to rebate in
violation of Interstate Commerce Act and is within jurisdiction of Federal
court; McGoon v. Northern Pac. Ry. Co., 204 Fed. 1000, suit by shipper
for damages to property while being transported in interstate commerce
is one arising under commerce act giving Federal District Court original
jurisdiction ; Smith v. Farbenf abriken of Elberfeld Co., 203 Fed. 483, 121
C. C. A. 598, Federal District Court has jurisdiction of patent infringe-
ment suit though defendant is nonresident alien; United Stages v. Dolla,
177 Fed. 104, 21 Aim. Oaa. 665, 100 C. C. A. 521, Circuit Court of Appeals
has no jurisdiction to review decision of District or Circuit Court admit-
ting alien to citizenship; Beck v. Johnson, 169 Fed. 159, action to recover
damEiges for wrongful death based on violation of executive rules and
regulations not removable to Federal court as arising under laws of Con-
gress; Oregon v. Three Sisters Irr. Co., 158 Fed. 349, action to annul con-
tract depending for its validitgr upon construction of Federal reclamation
laws is one arising under laws of United States and removable to Federal
courts; Anthony v. Burrow, 129 Fed. 787, question whether county is law-
fully included in congressional district where it was placed by act of legis-
lature is not Federal question; Nichols v. Chesapeake etc. Ry. Co., 127
Ky. 319, 17 L. E. A. (N. S.) 861, 105 S. W. 483, brakeman may sue in
Federal court for injury caused by failure to equip cars in interstate com-
merce with automatic couplers; Shellenbai^er v. Fewel, 34 Okl. 83, 124
Pac. 619, action to determine title to Indian allotment not removable from
State court to United Stales Circuit Court where plaintiff's complaint does
not show that case arises under Federal Constitution or laws; Rhode
Island V. Massachusetts, 12 Pet. 744, 9 L. Ed. 1268, holding court has
jurisdiction to determine boundary between States; Mltyor v. Cooper, 6
Wall. 253, ik L. Ed. 853, holding Circuit Court has jurisdiction of a case
whose correct decisions depend upon the construction of Federal law or
Constitution; Gold-Washington etc. Co. v. Keyes, 96 U. S. 201, 24 L. Ed.
658, holding case not removable to Federal court, because a construction
of Federal law or Constitution may be necessary; Tennessee v. Davis, 100
U. S. 264, 270, 286, 25 L. Ed. 650, 652, 658, holding this includes both civil
and criminal cases ; Railroad Co. v. Mississippi, 102 U. S. 140, 26 L. Ed. 98,
holding a petition for mandamus to remove bridge authorized by act of
6 Wheat. 26^^448 NOTES ON U. S. REPORTS. 1098
Congress was removable; Ames v. Kansas, 111 U. S. 462, 467, 468, 470,
28 L. Ed. 487, 489, 490, 4 Sup. Ct. 443, 445, 446, 447, holding snit in the
nature of quo warranto against a State corporation, consolidated nnder a
law of the United States, arises under the laws of the United States;
Kansas-Pacific v. Atchison R. R. Co., 112 U. S. 416, 28 L. Ed. 795, 5 Sup.
Ct. 209, where both corporations claimed title to same land under different
acts of Congress; dissenting opinion in In re Neagle, 136 U. S. 94, S4 L. Ed.
82, 10 Sup. Ct. 679, majority holding habeas corpus lies where person is
in custody for doing act in pursuance of a Federal law; United States v.
Texas, 143 U. S. 643, 36 L. Ed. 292, 12 Sup. Ct. 492, holding Supreme Court
has original jurisdiction of suit involving boundary between a territory
and a State ; United States v. Old Settlers, 148 U. S. 468, 87 L. Ed. 524,
13 Sup. Ct. 667, holding that a claim which could only be asserted by dis-
regarding a treaty is not one arising from or growing out of it; Whitten
V. Tomlinson, 160 U. S. 238, 40 L. Ed. 411, 16 Sup. Ct. 300, holding United
States courts can by habeas corpus inquil;^ into person detained under
State authority in violation of , the Constitution, or of a law or treaty of
the United States; Stanley v. Board of Supervisors, 19 Blatchf. 147, 6 Fed.
561( holding Circuit Court has jurisdiction of suit to enforce right con-
ferred by Federal statute regarding taxation of national bank shares ; The
Wave, Blatchf. & H. 251, Fed. Cas. 17,297, holding admiralty courts have
jurisdiction of actions for pilot fees ; United States v. Williams, 4 Cr. C. C.
392, 393, Fed. Cas. 16,712, holding all cases arising in the District of
Columbia arise under the Constitution and laws of the United States;
Connor v. Scott, 4 Dill. 246, Fed. Cas. 3119, holding case involving con-
struction of bankrupt law removable; North Carolina v. Trustees of Uni-
versity, 1 Hughes, 135, 136, Fed. Cas. 10,318, 7 Bank. Reg. 468, holding
Circuit Courts have not jurisdiction of a esse by a State against its own
citizens ; Van Allen v. Railroad Co., 1 McCrary, 600, 3 Fed. 546, 547, hold-
ing that a case arises under the Constitution or laws of the United States,
whenever it involves their construction;^ Magee v. Railroad Co., 2 Sawy.
449, Fed. Cas. 8945, holding fact that a corporation is organized under a
Federal law is not siifificient to give Circuit Court jurisdiction; Dowell v.
Griswold, 5 Sawy. 43, Fed. Cas. 4041, holding that an averment that an
action arises on a Federal law is not enough to confer jurisdiction; The
State Lottery Co. v. Fitzpatrick, 3 Woods, 240, 266, Fed. Cas. 8541, hold-
ing Circuit Court had jurisdiction where bill ^arged that law repealing
charter impaired the obligation of the contract; Virginia Coupon Cases,
25 Fed. 659, 660, holding Federal courts have jurisdiction of cases arising
thus^ though a State be a party; Kansas v. Bradley, 26 Fed. 289, deciding
that a point once decided by Supreme Court is no longer a Federal ques-
tion; Woodfin V. Phoebus, 30 Fed. 294, holding Federal courts have juris-
diction of fort on Federal territory; Illinois v« Illinois C. R. R. Co., 33
Fed. 725, holding averment that repealing act impairs the obligation of a
a contract is sufficient to make cause removable; Briscoe v. South Kansas
Ry. Co., 40 Fed. 277, holding that a Federal question is involved when a
right depends on the construction of a Federal law; Jones v. Florida,
C. & P. R. R. Co., 41 Fed. 71, holding dispute as to pre-emptor's title to
1099 COHEN V. VIRGINIA. 6 Wheat. 264-448
•
land under land laws is sneh a question; Dnnton v. Muth, 45 Fed. 395,
holding case removable, where parties claimed under Federal statute;
Pacific Gas Co. v. Ellert, 64 Fed. 429, holding statement by plaintiff that
defendant will claim his acts violate the Constitution will not give juris-
diction; Wood V, Drake, 70 Fed. 883, holding suit against Federal officer
for false impiisonment for executing process of Federal court is removable ;
King V. Lawson, 84 Fed. 2X6, where defendant's claim had been rejected by
Secretary of the Interior; Nashville etc. Ry. Co. y. Taylor, 86 Fed. 172,
173, 179, 181, holding question involving right of equalization is removable ;
Pollard V. State, 65 Ala. 630, holding State courts bound by decisions of
Supreme Court of United States construing act organizing national banks;
Rison V. Powell, 28 Ark. 435, holding State courts have concurrent juris-
diction of bill to set aside conveyance fraudulently made by bankrupt;
Mims v. Wimberly, .33 Ga. 595, holding judges of Confederate States have*
the right to adjudicate cases arising under the enrolling acts of the Con-
federate Congress; Lord v. Cannon, 75 Ga. 308, holding a Federal question
was involved, i^ere shortly before adjudication of bankruptcy exempt
land was sold under execution from Circuit Court; dissenting opinion,
State V. Kolsem, 130 Ind. 454, 14 L. R. A. 674, 29 N. E. 601, legislature is
exclusive judge of necessity for special law; Municipality No. One v.
Wheeler, 10 La. Ann. 747, holding that power to decide constitutionality of
a law lies with the judiciary; Johnson v. The N. 0. Nat. B. Assn., 33 La.
Ann. 480, holding suit involving Federal question is removable by State
to Circuit Court; dissenting opinion in Hathaway in 44 Me. 521, majority
holding free colored male person could vote; Opinion of Appleton, p. 559,
of same case ; Delafield v. Illinois, 2 Hill, 168, holding State court may take
jurisdiction where another State is a party; State v. Hoskins, 77 N. C.
541, 543, 544, holding case removable where revenue officer of the United
States was indicted; Setzer v. Douglass, 91 N. C. 429, holding action for
breach of contract by United States marshal against his deputy not re-
movable; dissenting opinion in Piqua Bank v. Knoup, 6 Ohio St. 380, 382,
majority holding the Supreme Court of the United States has appellate
jurisdiction over State courts; Tod ex rel. v. Fairfield Com. Pleas, 15 Ohio
St. 387, holding Federal law providing for removal of suits for acts done
under the authority of the President during the Rebellion is constitutional ;
State V. Southern Pac. R.*R. Co., 23 Or. 431, 31 Pac. 962, holding no cause
for removal where defendant was a foreign corporation and question was
settling of freight rates; State v. Bowen, 8 S. C. 387, holding action in
nature of quo warranto to determine title to office of presidential elector
not removable; State v.. Davis, 12 S. C. 553, holding jurisdiction of State
court over soldier dischai^ed with crime not removable by writ of habeas
corpus to Federal court ; State v. Insurance Co., 97 Tenn. 99, 36 S. W. 724,
holding State court ¥rill follow decision of Federal court as to Federal
question ; Stone v. Edwards, 35 Tex. 558, holding State court cannot enjoin
the infringement of a patent; Ableman v. Booth, 11 Wis. 508, 520, court
dividing as to the appellate jurisdiction of Supreme Court of the United
States over State courts; dissenting opinion in Charles River Bridge v.
6 Wheat. 264-448 NOTES ON U. S. REPORTS. 11 .
Warren Bridge, 11 Pet. 585, 9 L. Ed. 839; McCormick v. Hampliiey.7
Ind. 152, arguendo.
Distinguished in Starin ▼. New York, 115 U. S. 257, 29 L. Bi K
6 Sup. Ct. 31, holding question whether city of New York has exclnsht
right to ferries over public waters is not one arising under Federal liT*
and Constitution ; Jonfe v. The Oceanic S. N. Co., 11 Blatchf . 410, Fed
Cas. 7485, holding suit i^ainst corporation chartered by Great Brit&uiK^
removable from State court ; Celluloid Mfg. Co. v. Goodyear D. V. Co^ 15
Blatchf. 388, Fed. Cas. 2543, where the question was not one of Fedmi
jurisdiction, but whether the facts were sufficient to sustain the bill; Wi^e
V. Nixon, 76 Fed. 5, where construction of Federal statute was not io-
volved ; Fleming v. Clark, 12 Allen, 195, 198, refusing to discharge prisonc:
on writ of habeas corpus issued by justice of Supreme Court, if no ques-
tion of law were brought up; State v. Trustees, & N. C. 716, 717, holding
Circuit Court has no jurisdiction of suit by a State against its own citi-
zens; Applegate v. Dowell, 15 Or. 527, 16 Pac. 658, holding an averment
of fraud upon revenue laws of United States is not su^cient to shov a
Federal question; Texas etc. Ry. Co. v. McAllister, 59 Tex. 359, holding
case not removable where petition states it to be a Federal question, with-
out giving facts.
When State may invoke original jurisdiction of United States Supreme
Court. Note, Ann. Oaa. 1912C, 529.
Removal of criminal causes into Federal courts from State or other
Federal courts. Note, 53 L. B. A. 571.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 836.
AffirmatiTe words are often negative of other objects tban those affirmed,
but not where they have full operation without giving them this negative
meaning.
Approved in Higgins v. Tax Assessors of Pawtucket, 27 R. I. 405, 63 Atl.
36, upholding Practice Act 1905, § 12, giving Superior Court jurisdiction
over extraordinary writs; dissenting opinion in Webb v. Carter, 129 Tenn.
260, 262, 268, 165 S. W. 447, 449, majority holding that vetoed bill passed
by house of origin without quorum, passed by Senate, then again by house
with quorum in attempt to remedy defect, was void; Lyon v. Kent, 46
Ala. 665, holding a charge will be presumed to be oral when record does
not show it was moved for in writing; Territory v. Ortiz, 1 N. M. 13, hold-
ing an affirmative grant of original jurisdiction in particular cases implies
a negative in all other cases.
Distinguished in Ex parte Henderson, 6 Fla. 295, 296, holding grant of
one power by Constitution is not necessarily exclusive of another.
Original Jurisdiction of Supreme Court is defined by the Oonstitution, and
cannot be enlarged by Ctongress.
Approved in Union Pac. Ry. v. Mason City etc. Ry., 128 Fed. 234, hold-
ing decision in 163 U. S. 564, that provisions of Pacific railroad acts relating
to bridge over Missouri river imposed upon Pacific Company duty of per-
mitting Rock Island Company to run its trains over bridge and tracks of
nnst I
ScieDi :
ex J--
/ que:
'S.
1101 COHEN V. VIRGINIA. 6 Wheat. 264-448
Pacific Company was not dicta; dissenting jopinion in £x parte Crane, 6
• 251 !S: Pet. 202, 206, 8 L. Ed. 97, 98, majority holding this court has jnrilsdiction
^ Forii: to issue writ of mandamus to Circuit Court commanding it to review its
? under h settlement of proposed bill of exceptions; Ex parte Vallandigham, 1 Wall.
[1 Bhtd 2^2y ^'^ ^* ^^ ^^3» holding Supreme Court cannot review proceedings of
hy Gm' ^ military commission by certiorari; Boes v. Preston, 111 U. S. 258, 28
odyeull L. Ed. 421, 4 Sup. Ct. 410, holding constitutional grant of original JTirisdie-
mt m • t^^^ t^ Supreme Court of cases affecting consuls does not make it exclusive ;
Sim lb Wisconsin v. Pelican Ins. Co., 127 U. S. 298, 299, 32 I*. Ed. 246, 8 Sup. Ct.
tatnte r 1378, holding Supreme Court has not original jurisdiction of an action by
disehir ^ State upon a judgment in its own courts against a«corporation of an-
C<m, L <**^®' St**® 'f California v. Southern Pac. R. R. Co., 157 U." S. 268, 89 L. Ed.
716 '?' ^^^> ^^ '^^P' ^** ^^^* holding Supreme Court has no original jurisdiction of
suit between a State and its citizens and citizens of another State; Baker
IiVsr ^' Biddle, 1 Bald. 403, 406, Fed. Cas. 764, holding jurisdiction of Federal
courts is defined and limited by the Constitution and the law; Territory
V. Ortiz, 1 N. M. 13, holding legislature cannot extend original jurisdiction
of Supreme Court.
What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. R. A. 575, 539.
Dicta ought not to control judgment in a subsequent suit.
Sti't Approved in Harriman v. Northern Securities Co., 197 U. S. 291, 49
L. Ed. 761, 25 Sup. Ct. 493, Linstroth Wagon Co. v. Ballew, 149 Fed. 965,
) 7^. In re Sullivan,/ 148 Fed. 816, Traer v. Fowler, 144 Fed. 817, Wabash R. Co.
V. De Tar, 141 Fed. 938, Kentucky v. Powers, 139 Fed. 482, Ex parte Rig-
gins, 134 Fed. 423, St. Louis etc. Ry. Co. v. Davis, 132 Fed. 635, Southern
^^ Ry. Co. V. Simpson, 131 Fed. 709, 66 C. C. A. 563, Clancy v. Barker, 131
^' ^- Fed. 168, 69 L. R. A. 653, 66 C. C. A. 469, and Rodwell v. Rowland, 137
N. C. 638, 50 S. E. 327, all following rule ; Macon City etc. R. Co. v. Wolf,
i'i- 148 Fed. 968, applying rule in determining damages in eminent domain;
Bailey v. Baker Ice Mach. Co., 239 U. S. 272, 60 L. Ed. 285, 36 Sup. Ct.
52, sale of ice machine on installment plan, vendor retaining title and right
to resume possession upon failure of payment, was conditional sale, not
absolute sale with mortgage back under Kansas statutes; Joplin Mer-
cantile Co. V. United States, 236 U. S. 538, 59 L. Ed. 709, 35 Sup. Ct. 291,
enabling act requiring Oklahoma to enforce prohibition of sale of liquor
to Indians within State, acts as partial repeal of act of 1895, leaving to
Federal government regulation of interstate traffic in liquor; Weyer-
haeuser V. Hoyt, 219 U. S. 394, 55 L. Ed. 264, 31 Sup. Ct. 300, selections
of indemnity lands filed by railway and approved by Secretary of Interior
not subject to entry or purchase under Federal land laws between date of fil-
ing and approval ; Deposit Bank v. Frankfort, 191 U. S. 517, 48 L. Ed. 283,
24 Sup. Ct. 154, holding adjudication of Federal court establishing contract
exempting from taxation based on judgment of State court is res adju^cata;
Downes v. Bidwell, 182 U. S. 259, 45 L. Ed. 1095, 21 Sup. Ct. 776, holding de-
cisions of Supreme Court on rights of territories must have reference to par-
ticular case ; Northern Pac. Ry. Co. v. North American Tel. Co., 230 Fed. 355
6 Wheat. 264-448 NOTES ON U. ^S. REPORTS. 1102
telegraph company in condemning right of way for its line over unused
portion of railroad right of way must compensate railway for value of
surplus use for telegraph purposes; Isbell v. United States, 227 Fed. 790,
duty of trial court to direct verdict for defendant where no substantial
evidence to sustain plaintiff's claim is given; Chesapeake & Delaware Canal
Co. V. United States, 223 Fed. 932, L. E. A. 1916B, 784, 139 C. C. A. 406,
presumption of payment arises from lapse of time and must be rebutted
by evidence ; Wells Fargo & Co. v. Johnson, 214 Fed. 184, L. R. A. 19160,
522, 130 C. C. A. 528, assessing for taxes gross earnings of express com-
panies violates constitutional provision that taxes shall be equal and uni-
form; Wellman v. •Bethea, 213 Fed. 371, Federal court will not vacate
judgment after end of term, though State statute allows such relief within
one year for cause; Joplin Mercantile Co. v. United States, 213 Fed. 931,
Ann. Gas. 1916C, 470, 131 C. C. A. 160, act of 1895 prohibiting carrying:
of intoxicating liquor into Indian Territory not repealed by enacting act
as to importation from parts of State not within Indian Territory ; Schaap
V. United States, 210 Fed. 856, 127 C. C. A. 415, acts of 1892 and 1897
forbidding introduction of intoxicating liquprs into Indian country cease
to apply when original Indian title extinguished; Storm Lake Tub & Tank
Factory v. Minneapolis etc. R. Co., 209 Fed. 902, action for damages to
interstate shipment of goods through negligence is one to enforce common-
law liability and removable from State court only on ground of diversity
of citizenship or when amount in controversy exceeds three thousand dol-
lars; Evans v. Victor, 204 Fed. 367, 122 C. C. A. 531, land ceases to be
Indian land when original Indian title extinguished and Indian service
bflScer had no authority without search-warrant to search premises for intoxi-
cating liquor; San Francisco Gas & Electric Co. v. San Francisco, 189 Fed.
947, 950, Federal court has jurisdiction to enjoin enforcement of con-
fiscatory rates for gas, though ordinance fixing rates invalid under State
law; Kilkenney v. Bockius, 187 Fed. 384, person injured in automobile
collision due to simultaneous negligence of bqth drivers may sue them in
same action as joint tort-feasors; Brown v. Fletcher, 182 Fed. 981, 105
C. C. A. 425, dismissal of suit for want of prosecution does not go to merits
of action and will not bar another suit; Kansas City Southern Ry. Co. v.
Quiglcy, l8l Fed. 204, bill in equity by railroad to enjoin suits at law
for damages or in equity to restrain removal of division point is not main-
tainable in Federal court \o avoid multiplicity of suits; Heyward v. Brad-
ley, 179 Fed. 331, 102 C. C. A. 509, specific performance of contract to sell
phosphate rock for twenty thousand dollars found later to be worth
seventy thousand dollars, not denied, since inadequacy of consideration is
not so great as to raise imputation of fraud; Adelbert College v. Wabash
R. Co., 171 Fed. 813, 96 C. C. A. 445,' inferior Federal court follows deci-
sion of Supreme Court that no lien exists in behalf of unsecured equipment
note holders under Ohio consolidation statute and consolidation agreement,
though later decision of highest State court held such lien did exist ; United
States V. Illinois Cent. R. Co., 170 Fed. 547, 95 C. C. A. 628, penalty for
noncompliance with safety appliance act does not extend to undiscoverable
defects ; Watson v. St. Louis etc. R. Co., 169 Fed. 949^ Employer's Liability
U03 COHEN V. VIRGINIA. 6 Wheat. 264-448
Act of Congress applying to carrier in interstate commerce limited to
injuries caused by negligence of fellow-servant then engaged in interstate
commerce does not make ^ act abolishing fellow-servant rale unconstitu-
tional ; Bradley v. Heyward, 164 Fed. 115, specific performance of contract
cannot be denied on ground of inadequacy of consideration alone, unless
inadequacy so great as to create presumption of fraud; United States v.
Colorado etc. B. Co., 157 Fed. 329, 13 Ann. Gas. 899, 15 L. B. A- (N. S.)
167, 85 C. C. A. 27, act of Congress that every carrier engaged in interstate
commerce shall equip cars with automatic couplers is not limited by provi-
sion in Interstate Commerce Act excluding certain carriers; Mason City
& T. D. R. Co. V. Union Pac. R. Co., 124 Fed. 413, holding upon decision
as to validity of contract made by Union Pacific Company, where alleged
invalidity was x)ower of company to make contract, the contract properly
was valid at common law and also under bridge act of 1871; Knott V.
Evening Post Co., 124 Fed. 351, holding under Gen. Stats. Ky., § 561, pro-
viding for closing affairs of corporation, appointment of trust company
as liquidator is not ground for appointment of receiver by minority stock-
holder; Lockhard v. Asher Lumber Co., 123 Fed. 501, holding that the
construction of the statute of Kentucky that patent could issue for survey
in excess of two hundred acres is binding on Federal court; In re Wolf &
Levy, 122 Fed. 130, holding receipt of payment in full within four months
of bankruptcy without knowledge of bankruptcy and sale of anothei: invoice
of goods which were not paid for is not a preference under bankruptcy act,
section 60c; King v. Pomeroy, 121 Fed. 294, holding act of June 3,
1864, c. 106 (13 Stat. 99); relating to formatioh of national banks. Federal
court has authority to apx)oint receiver to liquidate its obligations under
United States Comp. Stats. 1901, p. 3465; Southern Steel Co. v. Hopkins,
157 Ala. 190, 131 Am. St. Rep. 20, 16 Ann. Ca«. 690, 20 L. B. A. (N. 8.)
848, 47 South. 278, bill in equity lies to enjoin numerous suits against cor-
poration for negligent death of persons killed in mine explosion until de-
lermination of defense applicable to all suits ; Friedman v. Suttle, 10 Ariz.
63, 9 L. B. A. (N. S.) 983, 85 Pac. 728, where plaintiff upon request brings
mining property to notice of defendalit and defendant promises to pay
commission if purchase made, contract is enforceable; People v. Bank of
San Luis Obispo, 159 Cal. 79, Ann. Oa«. 1912B, 1148, 37 L. B. A. (N. S.)
934, 112 Pac. 872, repeal of banking act under which bank declared insol-
vent after final judgment on direct appeal, but pending appeal on collateral
proceeding, does not destroy judgment; Town of Aurora v. Hayden, 23
Colo. App. 33, 126 Pac. 1120, innocent purchaser cannot recover from town
on waterworks bonds issued pursuant to invalid ordinance; Denver Job-
bers' Assn. V. People, 21 Colo. App. 366, 122 Pac. 413, attorney general of
State may enjoin illegal combination of dealers in food products to control
prices in restraint of trade; Bradley v. Lightcap, 202 III. 186, 67 N. tj. 57,
holding statute providing that certificate of purchase under foreclosure is
;null and void if no deed is taken out in the five years after period of
redemption applies to purchaser in possession; Miller v. Siohier, 40 Ind.
App. 470, 79 N. E. 1094, assignor, not resident householder at time of
assififnment to creditors^ is not entitled to statutory exemption of six
6 Wheat. 264r-448 NOTES ON U. S. REPORTS. 1104
hundred dollars' worth of property allowed to resident householders;
Hamilton v. Hamilton's Estate, 26 Ind. App. 203, 59 N. E. 348, holding
under Burns' Rev. Stats. 1894, §6975; Horner's Rev. Stats. 1897, § 5130,
relating to earnings of married women, a married woman may l^pally eon-
tract to perform services for her hushand's father; State v. Brookhart,
113 Iowa, 257, 84 N. W. 1066, holding where several objections to validity
of constitutional amendment are raised by issues, and are . held as valid
grounds for denying its validity and the rulings are assigned as error and
are considered and affirmed on appeal, the decision is authoritative and
not dictum; Allison v, Cocke's Exrs., 106. Ky. 763, &1 S. W. 596, holding
sale by foreign executor before he qualified, of land in Kentucky, is made
valid by subsequent ratification notwithstanding Gen. Stats., c. 30, art. I,
§ 1 ; Swan v. Justices of Sup. Court, 222 Mass. 545, 111 N. E. 388, statute to
prevent delay in removal of officers by appeal does not prohibit writ of cer-
tiorari to correct substantial errors of law on record, but findings of fact are
not open to revision; State v. Great Northern Ry. Co., 106 Minn. 335, 336, 119
N. W. 210, 211, statute increasing rate of gross earnings tax of all railroads
operating within State to four per cent impairs no contractual rights and
is valid ; Barber Asphalt Pav. Co. v. French, 158 Mo. 539, 58 S. W.^ 936,
holding where city charter authorized city to assess abutting jproperty
owners in proportion to frontage, an assessment made for street work done
in accordance with ordinance is not void for taking private property for
public purposes without compensation; People etc. ▼. Tax Commrs., 174
N. Y. 447, 67 N. E. 77, holding under Const., art. X, § 2 (N. Y.), providing
that all municipal officers whose election is not provided for by Constitu-
tion shall be elected by municipality, the transfer of duties of municipal
officers to State officers is prohibited; McCoy v. Handlin, 35 S. D. 502,
L. R. A. 1915E, 868, 153 N. W. 367, Supreme Court allow*^ writ of man-
damus to member of Supreme Court against auditor for salary; Cardwell
V. Norfolk etc. Ry. Co., 114 Va. 510, 77 S. E. 616, verdict of jury acquitting
plaintiff of contributoiy negligence not plainly against evidence and should
not have been set aside by trial eourt; Ingham v. Wtn. P. Harper & Son,
71 Wash. 288, Ann. Oas. 1914G, 528, 128 Pac. 676, amount in controversy,
as limiting right of appeal, determined by allegation of pleadings not by
demand for judgment; State v. Superior Court, 67 Wash. 16, 120 Pac. 516,
city ordinance giving street railway right to erect trestle for tracks destroy-
ing right of common public user in street is authorized by statute; disslsnt-
ing opinion in Kemmerer v. Midland Oil & Drilling Co., 229 Fed. 884,
majority holding that owner of land having leased surface without reser-
vation may lease right to drill for oil or gas to another; dissenting opinion
in Commissioners' Court v. City of Troy, 173 Ala. 448, Ann. Oas. 1914A,
771, 56 South. 275, majority holding that act of legislature allowing city
for its streets one-half of fund raised and collected as special road tax
was unconstitutional; dissenting opinion in South Park Commissioners v.
Montgomery, Ward & Co., 248 111. 337, 21 Ann. Gas. 127, 93 N. E. 924,
majority holding that land dedicated to public for park cannot be used
for public buildings; dissenting opinion in Polsey v. Newton, 199 Mass.
456, 15 Ann. Om. 139, 17 L. B. A. (N. 8.) 865, 85 N. £. 576, equity court
1105 COHEN V. VIRGINIA. 6 Wheat. 264r448
cannot reform will, but may eliminate snpefflaons words to carry out
intent of testatrix; Carroll v. Carroll, 16 How. 287, 14 L. Ed. 941, and
Matz v. Chicago etc. R. R. Co., 86 Fed. 183, refusing to follow decision of
State court, construing State statute, Vhere such construction was not
necessary to deciliS the case ; Northern Bank v. Porter Township, 110 U. S.
616, 28 L. Ed. 261, 4 Sup. Ct. 257, holding Supreme Court has never in-
tended to adjudge that recitals by officers in municipal bonds are conclusive
as to legislative authority to issue them. The following citing cases refu^
to be bound by dicta: Pollock v. Farmers' L. & T. Co., 157 U. S. 674, 39
L. Ed. 817, 15 Sup. Ct. 687, see dissenting opinion, p. 647, 89 L. Ed. 842,
15 Sup. Ct. 715 J United States v. Wong Kim Ark, 169 U. S. 679, 42 L. Ed.
901, 18 Sup. Ct. 468; United States v. Kendall, 5 Cr. C. C. 260, Fed. Cas.
15,517; Fidelity Trust Co. v. GUI Car Co., 25 Fed. 748; Northern Pac.
R. R. Co. V. Sanders, 46 Fed. 244 ; dissenting opinion in Northern Pac. R. R.
Co. V. Barden, 46 Fed. 617 ; King v. McLean Asylum, 64 Fed. 340, 21 U. S.
App. 481, 26 L. B. A. 786 ; United States y. Addyston etc. Co., 85 Fed.
299; Hovey v. Insurance Co., 10 Bank. Reg. 229, 12 Fed. Cas. 606; dis-
senting opinion in Leisy v. Hardin, 135 U. S. 135, 84 L. Ed. 141, 10 Sup. Ct.
693; Hudson v. Schwab, 18 N. B. R. 480, 12 Fed. Cas. 816; Uhlfielder v.
Levy, 9 Cal. 615; Hart v. Burnett, 15 Cal. 598; Ex parte Young Ah Gow,
73 Cal. 448, 15 Pac. 81; Norris v. Moody, 84 Cal. 149, 24 Pac. 38; In re
Johnson, 98 Cal. 542, 21 L. B. A. S83, 33 Pac. 463 ; Wadsworth v. Ry. Co.,
18 Colo. 610, 36 Am. St. Rep. 317, 33^ Pac. 519; dissenting opinion in
Rupert v. People, 20 Colo. 431, 38 Pac. 705; Mayer v. Erhardt, 88 111. '457;
Lake Shore etc. R. R. v. Wilson, 11 Ind. App. 493, 38 N. E. 345; Express
Co. V. Foley, 46 Kan. 464, 26 Am. St. Rep. 112, 26 Pac. 668; De Ende v.
Moore, 2 Mart. (La.) (N. S.) 351; Decoster v. Wing, 76 Me. 455; Haines v.
Lewiston, 84 Me. 25, 24 Atl. 432; Alexander v. Worthington, 5 Md. 489;
Jameson's Appeal, 1 Mich. 103; Robinson v. Rice, 3 Mich. 244; St. Louis
etc. Co. V. Gas etc. Co., 16 Mo. App. 60; King v. Amy etc. Co., 9 Mont.
574, 24 Pac. 205; Coler v. Conunissioners, 6 N. M. 150, 27 Pac. 635;
Southard v. Curley, 134 N. Y. 155, 30 Am. 8t. Rep. 648 ; dissenting opinion
in Coler v. Commissioners, 6 N. M. 150, 27 Pac. 635 ; Warren v. Wallis, 42
Tex. 475; State v. Doyle, 40 Wis. 190, 22 Am. Rep. 695; Olin v. Denver
& R. G. R. R. Co., 53 Pac. 457.
Distinguished in Brown v. Chicago & Northwestern R. Co., 102 Wis. 152,
169, 78 N. W. 772, 777, holding on rehearing that all propositions assumed
by the court to be within case, and questions presented and considered
leading to final conclusion are as effectually passed on as the ultimate ques-
tion; Hawes v. Contra Costa Water Co., 5 Sawy. 297, 298, Fed. Cas. 6235,
holding where the court determines two points upon either of which the
decision might turn, the judgment is authoritative; Clarke v. Figgins, 27
W. Va. 671, following previous decisions without inquiring into the grounds
for them. /
Denied in United States v. Powell, 151 Fed. 663, following dicta of
Supreme Court in another case, Federal Circuit Court holds that taking
1—70
/
6 Wheat. 264^448 NOTES ON U. S. REPORTS. 1106
prisoner from State's officers and murdering him is not violating his right
to due process of law.
Stare decisis. Note, 27 Am. Dec. 632, 638.
What constitutes dictum of court. Note, Ann. Oa8.^pi20, 1248.
Supreme Court must take Jurisdiction, it it should; it can iio more dedlne
Jurisdiction which is given than usurp it if not given.
Approved in Willcox v. Consolidated Gas Ck>., 212 U. S. 40, 15 Ann. Gas.
1034, 48 L. E. A. (N. S.) 1134, 53 L. Ed. 394, 29 Sup. Ct. 192, Federal
court must take jurisdiction of suit to enjoin enforcement of State statute
fixing gas rates asserted unconstitutional; Ex parte Young, 209 U. S. 142,
14 Ann. Gas. 764, 13 L. B. A. (N. S.) 932, 52 L. Ed. 722, 28 Sup. Ct, 441,
Circuit Court had jurisdiction to enjoin State attorney general from en-
forcing State statute establishing confiscatory rates and must exercise
that jurisdiction; Blackburn v. Portland Gold Min. Co., 175 U. S. 580,
44 L. Ed. 281, 20 Sup. Ct. 226, holding allegation that "amount" instead
of '^matter" in dispute is more than two thousand dollars, is sufficient to
show jurisdiction of Federal court; Raich v. Truax, 219 Fed. 285, Federal
court has jurisdiction of suit by alien to restrain enforcement of State law
discriminatory against employment of aliens in violation of Fourteenth
Amendment ; St. Louis etc. Ry. Co. v. Bellamy, 211 Fed. 181y Federal court,
granting railroad temporary injunction to prevent commission from en-
forcing rates and requiring bond that railway would reimburse parties
for excess of rates charged if Anal decree adverse, may enjoin parties
from suing railroad to recover excess; Central R. Co. v. Mayor etc. of
Jersey City, 199 Fed: 242, systematic plan to over-assess railway property
and under-assess other property is denial of equal protection of law requir-
ing Federal court to take jurisdiction; Wilmington City Ry. Co. v. Taylor,
198 Fed. 178, Federal court has jurisdiction of suit to restrain public utility
board from enforcing order to establish rates alleged unreasonable and con-
fiscatory; Kansas City Gas Co. v. Kansas City, 198 Fed. 508, municipal
ordinance violating contract of city with gas company is I^slative act
impairing obligation of contract, and Federal court has jurisdiction; St.
Louis etc. R. Co. v. Allen, 181 Fed. 714, rule of State railroad commission
for routing shipments interferes with interstate commerce and Federal
court has jurisdiction to enjoin enforcement; Larabee v. DoUey, 175 Fed.
387, suit by stockholder of banking corporation to enjoin enforcement
of bank guarapty law of Kansas impairing obligation df contracts is ease
arising under Constitution and within Federal jurisdiction ; Kansas Natural
Gas Co. V. Haskell, 172 Fed. 554, suit to enjoin officers of State from
enforcing illegal act prohibiting sale of natural gas outside State is not
suit against State within meaning of eleventh amendment; F. W. Cook
Brewing Co. v. Garber, 168 Fed. 946, Federal courts having jurisdiction of
action by corporation of Indiana seeking injunction to restrain enforcement
of prohibition laws of Alabama alleged illegal must decide whether State
statute conflicts with State Constitution in advance of decision by State
courts; Union Pac. R. Co. v. Alexander, 113 Fed. 351, holding Federal
court has jurisdiction over action against county assessor holding office
1107 COHEN V. VIRGINIA. 6 Wheat. 2e4r448
under unconstitutional statute; Dorrance v. Dorrance, 242 Mo. 645, 148
S. W. 98, statute against review of divorce proceedings will not prevent
suit in equity to set aside judgment obtained on constructive service by
fraud; dissenting opinion in Taylor and Marshall v. Beckham (No. 1), 178
U. S. 592, 44 L. Ed. 1206, 20 Sup. Ct. 1012, majority holding that decision
by State tribunal against claimant for office of Governor cannot be re-
viewed by Supreme Court; Chicago v. Dey Co., 35 Fed, 872, 1 L. R, A. 749,
holding law defining duties of railroad commissioners in order to prevent
unjust discrimination is constitutional; Capital City G. Co. v. Des Moines,
72 Fed. 838, taking jurisdiction; dissenting opinion in Marks y. State, 45
Ala, 43, majority holding the association was not authorized to a\y^ard
money by lot; Mayor etc. of Mobile v. Dargan, 45 Ala. 318, holding pro-
vision in municipal charter in conflict with Constitution adopted afterward
is void ; Bailey v. Railroad Co., 4 Harr. (Del.) 403, 44 Am. Dec, 605, holding
Supreme Court of State must decide on the constitutionality of its laws;
as also in Bank of St. Marys v. State, 12 Ga. 499, ruling similarly; In re
Gunn, 50 Kan. 187, 19 L. R. A. j527, 32 Pac. 478, Supreme Court may review
action of House of Representatives; Ex parte Davis, 41 Me. 50, holding
judiciary must pronounce on the constitutionality of acts ; Rhodes v. Walsh,
55 Minn. 548, 23 L. R. A. 635, 57 N. W. 213, on meaning of constitutional
provision; United States v. Kendall, 5 Cr. C. C. 277, Fed. Cas. 15,517,
arguendo.
The phraseolbgy oX tlie eleventh amendment, providing that Judicial power
''shall not he eonstmed" to extend to snltB against State, imports absolute
prohlhitioa.
Cited to this point and similar phraseology of an act similarly construed
in Ex parte Poulson, 19 Fed. Cas. 1207; and dissenting opinion in Liv-
ingston V. Story, 11 Pet. 397, 9 L. Ed. 764.
Approved in Missouri v. Illinois & Chicago District, 180 U. S. 239, 240,
45 L. Ed. 511, 21 Sup. Ct. 343, holding United States Supreme Court will
take original jurisdiction of action brought by Missouri against Illinois
to prevent sanitary district of Chicago from emptying sewage in Missis-
sippi River; La Abra Silver Min. Co. v. United States, 175 U. S. 455, 44
L. Ed. 234, 20 Sup. Ct. 179, holding suit by United States to determine
question of fraud in obtaining award against Mexico, brought under act
of Congress, December 28, 1892, is a '^case'' within meaning of Constitu-
tion; Manigault v. S. M. Ward etc. Co., 123 Fed. 711, holding where it
appears that allegation in bill to the effect that defendant is attempting
to act under law violating Federal Constitution iis made in good faitH,
Federal court has jurisdiction; South Carolina v. Virginia-Carolina Chem-
ical Co., 117 Fed. 728, holding when statute under which action is prose-
cuted shows it was enacted by State in exercise of police powers. Federal
court has no jurisdiction ; Anderson v. Elliott, 101 Fed. 613, holding default
judgment in Federal court is valid, where action is to recover possession
of land, and defendant cannot attack judgment on the ground that land
is in another State, wliere boundary between States is in dispute; South-
em Ry. Co. y. North Carolina Corp. Commission, 97 Fed. 514^ holding
6 Wheat. 264-448 NOTES ON U. S. REPORTS. 1108
Federal court has jurisdiction over suit by railroad company to restrain
State authorities from collecting tax, when it is alleged that assessment
is without authority of law; Arkansas v. Kansas & T. Coal Co., 96 Fed.
357, holding suit between State and citizen or corporation of another State
is not suit between citizens of different States, and Circuit Court has no
jurisdiction on account of diverse citizenship; Dewey Min. Co. v. Miller,
96 Fed. 2, holding jurisdiction to determine conflicting mining locations
on public lands is not in Federal court, when only question of fact is
involved.
A salt is the prosecution of some demand in a court of justice.
Approved in Wynn v. Tallapoosa County Bank, 168 Ala. 491, 53 South.
237, losses of bank due to loans by cashier not well secured and overdrafts
are not chargeable to estate of deceased cashier; Dorr Cattle Co. v. Des
Moines Nat. Bank, 127 Iowa, 162, 98 N. W. 922, where remedy for tort
is created by statute, remedy, including items of damage recoverable, is
governed by law of place of suit; Boston v. Turner, 201 Mass. 196, 87
N. E. 637, tax collector may sue in equity to' enforce trust for unpaid taxes
created by assignment for benefit of creditors ; Patterson v. Standard Acci-
dent Ins. Co., 178 Mich. 292, Ann. Cas. 1915A, 632, 144 N. W. 492, insur-
ance policy requiring insurer to defend insured in suits on account of auto-
mobile accidents refers only to civil actions; Eckerle v. Wood, 95 Mo. App.
384, 69 S. W. 46, holding proceeding under sections 74-78, Rev. Stats. 1899
(Mo.), for discovery of assets of estate is ''suit pending" for purpose of
taking deposition; North Carolina Corp. Commission "^. Southern Ry. Co.,
151 N. C. 450, 66 S. E. 42^, proceeding for writ of mandamus to compel
railroad to move depot pending in State court is not suit of civil nature
within Federal law providing for removal to Circuit Court; dissenting
opinion in State v. Mayhew, 155 N. C. 483, 71 S. E. 449, majority holding
that prosecution was whole or any part of procedure for bringing offenders
to justice and solicitor should receive fee for prosecuting capital crime,
though conviction was for second degree murder not capital crime ; Holmes
v. (tennison, 14 Pet. 624, 10 L. £d. 624, court divided as to whether writ
of habeas corpus is a suit, in a sense to justify removal from State to
Federal court; Ex parte Milligan, 4 Wall. 113, 18 L. Ed. 293, hiding pro-
ceeding for writ of habeas corpus is a ''suit"; King v. McLean A. etc., 64
Fed. 336, 21 U. S. App. 481, 26 L. B. A. 789, petition for habeas corpus
is a suit; United States v. Inlots, 26 Fed. Cas. 487, holding proceeding
by United States to condemn land is a "suit''; Appleton v. Tumbull, 84
Me. 76, 24 Atl. 593^ construing "suit" in statute to include any action or
bill brought by a judgment creditor against a corporation, or by any
irustee, receiver, etc.; State v. Newell, 13 Mont. 305, 34 Pao. 29, holding
ihat a habeas corpus proceeding is a special proceeding in the nature of an
uction ; Callen v. Ellison, 13 Ohio St. 453, 82 Am. Dec. 449, holding trial
^ourt is judge of whether suit was properly commenced; State v. Davis,
JL2 S. C. 538, deciding that a defense interposed to an indictment, depend-
ing for its force upon the Constitution and laws of the United States, is
not a case arising under them; In re Jenckes, 6 R. I. 22, holding application
1109 COHEN V. VIRGINIA. 6 Wheat. 264-448
to be admitted to thtf poor debtor's oath is a civil suit; Ex parte Towles, ,
r\ Tex. 433y holding that an ex parte proceeding is not a suif ; In re Booth,
Wis. 39, holding prosecution claim to a fugitive from labor is a "suit";
Porter v. Rich, 70 Conn. 259, 39 L. R. A. 860, 39 Atl. 177,' an inquest of
insanity is not an ''action"; In re Kaine, 14 How. 119, 14 L. Ed. 851,
Arguendo.
Writ of error brings up the record and submits the judgment below to a
re-examinatlon.
Approved in Bradford v. Southern Ry. Co., 195 U. S. 248, 49 .L. Ed. 181,
25 Sup. Ct. 55, under 27 Stat. 252, relating to suits in forma pauperis,
writ of error from Circuit Court of Appeals cannot be prosecuted without
givihg security for costs; Peck v. Truesdell, 7 Kan. App, 191, 51 Pac. 798,
statute of limitations does not run against claim for taxes pending appeal
on judgment declaring tax deed void; Dailey v. Foster, 17 N. M. 380, 128
Pac. 72, citation upon writ of error waived by voluntary appearance;
Suydam v. Williamson, 20 How. 433, 437, 15 L. Ed. 980, 982, holding paper
certified after the writ was issued to be no part of the record ; Nations v.
Johnson, 24 How. 205, 16 L. Ed. 682, holding writ of error is a continuation
of the original litigation; Pomeroy v. Bank of Indiana, 1 Wall. 600, 17
L. Ed. 641, affir^ng judgment where case was brought upon writ of error
but neither bill of exceptions, agreed statement, nor special verdict was
brought up; Rogers v. Burlington, 3 Wall. 661, 18 L. Ed. 82,' holding bill
of exceptions is unnecessary where error is apparent on face of the
record; New Orleans R. Co. v. Moi^an, 10 Wall. 261, 19 L. Ed. 893, allow-
ing writ of error where it was called a judgment in the record and treated
i|s such by the court and the parties; Slaughter-House Cases, 10 Wall. 291,
19 L. Ed. 920, holding writ of error removes the record and suspends juris-
diction of lower court; Insurance Co. v. Piaggio, 16 Wall. 386, 21 L. Ed.
859, holding whel'e all the facts are apparent on the record, court could
modify the judgment; Atherton v. Fowler, 91 U. S. 146, 28 L. Ed. 266,
holding a writ of error acts on the court having the record, not the
parties; as also in Kitchen v. Randolph, 93 U. S. 87, 28 L. Ed. 810; dis-
senting opinion in Underwood v. McVeigh, 131 U. S. 120, 122, Appx., 21
L. Ed. 953, 954, court dismissing writ of error because it should have been
directed to the Court of Appeals of the State ; Dower v. Richards, 151 U. S.
663, 666, 88 L. Ed. 807, 808, 14 Sup. Ct. 454, 455, holding Supreme Court
upon a writ of error cannot review judgment of State court on question
of fact; Hudson v. Parker, 156 U. S. 286, 89 L. Ed. 427, 15 Sup. Ct. 453,
holding bail may be taken pending writ of error; In re Chetwood, 165
U. S. 461, 41 L. Ed. 788, 17 Sup. Ct. 392, holding Circuit Court cannot pre-
vent parties applying for or Supreme Court from granting a writ of error ;
Ricks V. Hall, 4 Port. 180, holding writ of error does not lie from decision
of court of commissioners of revenue and roads; Ex parte Knight, 61
Ala. 484, holding writ of error may be granted for error of law apparent
of record, and when granted suspends judgment; Chipman v. City of
Waterbury, 59 Conn. 497, 22 Atl. 289, holding writ of error cannot bo
broi^ht to the Supreme Court of a district other than that in which the
6 Wheat. 264-448 NOTES ON U. S. REPORTS. 1110
case was decided ; State v. Costello, 61 Conn. 501, holding an appeal is not
in itself a criminal proceeding; Carter v. Bennett, 5 Fla. 94, holding writ
of error to State court operates as "a supersedeas; Ex parte Henderson, ^
Fla. 289, distinguishing between an appeal and a writ of error; Townsend
V. Davis, 1 Ga. 496, 44 Am. Doc. 676, holding no one but a party or privy
can bring a writ of error to reverse a judgment; State v. Jones, 7 Ga.
423, holding a writ of error does not lie in a criminal case at the instance
of the State ; Bryan v. Bates, 12 Allen, 209, 210, holding writ of error from
justice of United States Supreme Court operates as a supersedeas in a
criminal case in which final judgment and sentence have been given;
McLean v. Isbell, 44 Mich. 132, 134, holding certiorari to a justice is in the
nature of an appeal; dissenting opinion in Day v. Holland, 15 Or. 47D, 15
Pac. 858, as to the effect of an appeal; Fitzsimmons v. Johnson, 90 Tenn.
426, 17 S. W. 103, holding that a writ of error is not an original suit; dis-
sentii^ opinion in Shorey v. Wyckoff, 1 Wash. Ter. 352, majority denying
motion to amend praecipe by assignment of errors, where none were assigned
in lower court ; Peck v. Truesdell, 51 Pac. 798, where suit is pending to re-
verse a judgment declaring a tax deed void, statute would not run against
the claim for taxes; Sedgwick v. Dawkins, 16 Fla. 201, arguendo.
Distinguished in Benker v. Meyer, 154 Fed. 295, 83 C. C. A. 270, under
Nebraska statutes abolishing common-law writ foreign a4ministrator insti-
tuting proceedings on error voluntarily invokes jurisdiction of Nebraska
courts and* submits validity of judgment of District Court to Supreme
Court; Nadenbousch v. Sharer, 2 W. Va. 293, holding a supersedeas is in
the sense of the statute a new suit; Hughes v. The Dundee etc. Co., 11
Sawy. 559, 560, 28 Fed. 44, 45, holding a writ of error is in the nature of
a new suit, and does not suspend the judgment.
Writ of error from Supreme Oourt Is not suit, and its
State does not violate eleventh amendment.
Approved in General Oil Co. v. Grain, 209 U. S. 233, 52 L. BdL 766, 28
Sup. Ct. 475, upholding jurisdiction of Supreme Court to review deeision
of State court dismissing action on ground that suit was against State and
not within its jurisdiction, where violation of commerce clause of Consti-
tution involved ; South Dakota v. North Carolina, 192 U. S. 315, 316, 329, 48
L. Ed. 459, 460, 465, 24 Sup. Ct. 274, 280, upholding Supreme Court's juris-
diction over action by one State to enforce payment of bonds of another State
specifically secured by shares of stock belonging to debtor State; St. Louis
etc. R. Co. V. Hadley, 161 Fed. 423, action against attorney general and
railroad commission to enjoin enforcement of unreasonable rates is not
prohibited by eleventh amendment;' De Lemos v. United States, 107 Fed.
123, holding Circuit Court of Appeals caiCinot review criminal case by
appeal; Cotter v. Alabama G. S. R. Co., 61 Fed. 748, holding under act
of March 3, 1891, creating Circuit Courts of Appeal, writs of error from
that court are sued out under same practice as in cases of writs from.
Supreme Court; Florida v. Canfield, 40 Fla. 47, 23 South. 594, holding
Fla. Laws, c. 4629, approved May 8, 1897, providing for writs of error,
is valid; Peck v. Truesdell, 7 Kan. App. 191, 51 Pac. 798, holding in action
\
1111 COHEN V. VIRGINIA. 6 Wheat. 264-448
by holder of tax deed of land to recover possession thereof where deed
was declared void and affirmed on writ of error, the trial court at first
term after affirmance had pow^r to adjudge repa3anent of taxes, interest
and costs ; Tipton v. Tipton, 118 Tenn. 700, 104 S. W. 240, defendant may
revive case by scire facias against heirs where complainant dies after de-
cree for her; State v. Chittenden, 127 Wis. 494, 107 N. W. 508, independ-
ent proceeding commenced by an original writ is an action under Rev.
Stats. 1898, § 2695.
Criticised in Padelford v. Mayor etc., 14 Ga. 499, as misconstruing the
eleventh amendment.
No suit can he commenced or prosecuted against the TTnited States.
Cited in United States v. Eckford, 6 Wall. 488, 18 L. Ed. 921, holding
that defendant pleading a setoff against the United States cannot have
affirmative judgment; Hans v. Louisiana, 134 U. S. 19, 3S L. Ed. 848, 10
Sup. Ct. 508, holding State cannot be sued in Circuit Court by one of its
own citizens without its consent; Lee v. Kaufman, 3 Hughes, 126, Fed. Cas.
8191, holding courts have cognizance of an action in ejectment against an
officer or agent of the United States, though the government intervenes to
assist such officer; Hans v. Louisiana, 24 Fed. 68, holding a citizen cannot
sue his own State; Virginia Coupon Cases, 25 Fed. 657, holding State may
withdraw offer to compromise any time before acceptance by the creditor;
Briggs V. Light-Boats, 11 Allen, 176, holding lien cannot be enforced
against boat belonging to the United States.
Distinguished in United States v. Lee, 106 U. S. 207, 226, 27 K Ed. 177,
184, 1 Sup. Ct. 249, 266, holding officers and agents of the United States
may be sued, and in deciding the lawfulness of their possession of the
property, the title of the United States may be adjudged; St. Luke's Hos-
pital V. Barclay, 3 Blatchf. 264, Fed. Cas. 12,241, holding bill in equity to
stay pending suit may be maintained, though court may not have juris-
diction over the parties for other relief.
The United States is for many purposes a nation, and for all these objects
it is supreme.
Approved in Northern Securities Co. v. United States, 193 U. S. 333,
336, 48 L. Ed. 698, 24 Sup. Ct. 436, upholding anti-trust act of July 2,
1890; Kansas Natural Gas Co. v. Haskell, 172 Fed. 559, Oklahoma statute
prohibiting transportation of natural gas in pipe-lines beyond tezritorial
limits of State violates commerce clause of Constitution; Levin v. United
States, 128 Fed. 829, holding Congress may empower State courts to admit
qualified aliens to citizenship ; dissenting opinion in Downes v. Bidwell, 182
U. S. 377, 45 L. Ed. 1141, 21 Sup. Ct. 821, majority holding alien people
cannot be incorporated into the United States without approval of Con-
gress; Legal Tender Cases, 12 Wall. 533, 20 L. Ed. S06, holding legaf
tender laws constitutional and applicable to contracts made before and
after their passage; Claflin v. Houseman, 93 U. S. 142, 23 L. Ed. 840»
holding under the bankrupt act assignee might ^sue in State courts to
recover assets, exclusive jurisdiction not having been given to Federal
6 ITheat. 264-448 NOTES ON U. S. REPORTS. 1112
courts ; The Chinese Exclnsion Case, 130 U. S. 604, 32 L. Ed. 4075, 9 Sup.
Ct. 629, holding that in relation to foreign goVernments the United States
is a nation; dissenting opinion in United States v. E. C. Knight, 156 U. S.
20, 39 L. Ed. 332, 15 Sup. Ct. 257, majority holding that the creation of
a monopoly bears no direct relation to interstate or foreign commerce, and
cannot be suppressed; In re Debs, 158 U. S. fe79, 39 L. Ed. 1101, 15 Sup. Ct.
904, holding United States has full power over interstate commerce and
the transmission of mails; Nashville etc. Ry. Co. v. Taylor, 86 Fed. 171,
holding case involving right of equalization removable; French ▼. Tumlin,
9 Fed. Cas. 800, holding void a provision in State Constitution that courts
cannot enforce a debt the consideration of which was a slave; The Park-
hill, 18 Fed. Cas. 1188, holding when, because of war, its courts are closed,
a government may enforce its authority in such modes as are lawful in
foreign wars; Warner v. Steamer Uncle Sam, 9 Cal. 714, 718, holding that
the United States are supreme within constitutional limits; Lick v. Faulk-
ner, 25 Cal. 431, holding valid an act making treasury notes legal tender;
In re Pearson, 8 Fla. 502, holding a court can enforce the attendance of its
own members; Padelford v. Mayor etc. of Savannah, 14 Ga. 510, as having
laid down the rule that a State can be sued ; dissenting opinion in Ex parte
Holman, 28 Iowa, 137, majority holding State court cannot release, by writ
of habeas corpus, one held under process of Federal courts; Legal Tender
Cases, 52 Pa. St. 60, holding Congress can make treasury note legal tender;
Commonwealth v. Railroad Co., 62 Pa. St. 292, 1 Am, Rep. 403, holding?
tonnage tax law constitutional; Calhoun v. Calhoun, 2'S. C. 300, holding
section of State Constitution declaring contracts for slaves void uncon-
stitutional.
Oontemporaneous exposition of Constitution relied on, in eonstniing its
provisions.
Approved in Southern Ry. Co. v. St. Clair Co., 124 Ala. 504, 27 South.
29, following rule; Patton v. Brady, 184 U. S. 611, 46 L. Ed. 716, 22 Snp.
Ct. 494, holding tax levied on tobacco by war revenue act June 13, 1898,
"in lieu of tax now imposed by law," is an excise and must be apportioned
according to population ; Fairbank v. United States, 181 U. S. 367, 45 L. Ed.
898, 21 Sup. Ct. 658, holding stamp tax imposed on foi'eign bill of lading
by 30 Stats, at Large, 451 c. 448 § 6, is tax on articles included in bill and
void ; Capital Traction Co. v. Hof , 174 U. S. 10, 43 L. Ed. 876, 19 Sup. Ct.
584, holding under Const. U. S., amend. 7, providing that facts once tried
dhall be re-examined except as provided by common law, the facts can only
be re-examined by a new trial; August Busch etc. Co. v. Webb, 122 Fed.
661, holding sale or manufacture of intoxicating liquors is within control
of State; State v. Carter, 174 Ala. 279, 56 South. 979, State law creating
^ civil court for city of Mobile and allowing judge of criminal court to pre-
side not void as allowing one person to hold two offices; Olin v. Denver &
R. G. R. Co., 25 Colo. 184, 53 Pac. 457, holding in action for damages for
use of street for railroad purposes, decision that on vacation of street it
would pass to abutting lot owners was dicta; McCurtain v. Grady, 1 Ind.
Ter. 125, 38 S. W. 70, provision in Choctaw Constitution that citizen of
1113 COHEN V. VIRGINIA, 6 Wheat. 264r-448
Choctaw nation finding mine shall have exclusive right to work same within
one mile radius from point where he commences work not confined to
particular vein but gives right to all coal within that radius; State v. New
Orleans Ry. & L. Co., 116 La. 148, 40 South. 598, applying rule where under
two Constitutions exempting manufacturers from taxation, legislature for
twenty years imposed license tax on electric companies; Opinions of the
Justices, 95 Me. 585, 5X Atl. 232, holding under article VI, section 3, Maine
Constitution, justices shall only give opinion on "important questions of
law" ; State v. Northern Pac. Ry. Co., 95 Minn. 47, 103 N. W. 732, foreign
railroad paying taxes under gross earnings law may deduct debts from
credits, though it has failed to list credits ; Henry v. State; 87 Miss. 57, 39
South. 871, upholding Rev. Code 1892, § 3201, providing for working of
convicts on farm leased for that purpose ; Missouri etc. Ry. Co. v. State, 29
Okl. 646, 119 Pac. 119, act of first legislature after adoption of Constitu-
tion construing "public facilities" to include union depot is contem-
poraneous construction entitled to great weight; Higgins v. Brown, 20 Okl.
371, 1 Okl. Cr. 48, 94 Pac. 709, indictment for murder in Indian Territory
pending in territorial court on admission of State to Union is cognizable
in State court; State v. Nashville Baseball Club, 127 Tenn. 304, Ann. Caa.
1914B, 1243, 154 S. W. 1154, act forbidding Sunday baseball violating con-
stitutional provision for three readings is void; £x parte Anderson, 46
Tex. Cr* 399, ^1 S. W. 987, city court has no jurisdiction to try accused
for violation of State penal statute ; Colton & More v. City of Montpelier,
71 Vt. 416, 45 Atl. 1040, holding Vt. Stats., § 365, authorizing town to
exempt from taxation manufacturing establishment, machinery and capital,
is valid ; Manner v. County Court, 58 W. Va. 660, 52 S. E. 779, construing
Code 1899, c. 114, § 2, authorizing Circuit and County courts to adjourn from
day to day till business concluded, or till end of term ; disseiiting o|)inion in
Nelson v. Northern Pac. Ry. Co., 188 U. S. 137, 47 L. Ed. 418, 23 Sup. Ct.
313, majority holdii^g continued occupation of public land with bona fide
intention of acquiring it under homestead law constitutes a claim within
meaning of 13 Stats, at Large, 365, § 3, relating to grants to railroads ;
dissenting opinion in In re Lieutenant-Governorship, 54 Colo. 180, 181, 129
Pac. 817, majority holding that Supreme Court not required to give opinion
as to right of lieutenant-governor to hold over until successor elected;
dissenting opinion in State v. Smith, 158 Ind. 561, 63 N. E. 25, majority
holding Bums' Rev. Stats., 1901, § 8417a; Horner's Rev. Stats. 1901,
§ 6272a, providing that owner of real estate subject^ to taxation having
indebtedness secured by mortgage may have certain deductions is valid;
dissenting opinion in Moulton v. Scully, 111 Me. 471, 89 Atl. 963, majority
holding Governor could remove sheriff upon address of legislature for not
enforcing laws against illegal sale of intoxicating liquor; Cooley v. Board
of Wardens etc., 12 How. 315, 13 L.' Ed. 1003, holding State law constitu-
tional, providing for forfeiture of half-pilot fees by vessel n^lecting to
take a pilot; dissenting opinion in Dred Scott v. Sandford, 19 How. 616,
15 L. Ed. 788, majority holding act forbidding master from taking slaves
to a territory unconstitutional; Cooper Mfg. Co. v. Ferguson, 113 U. S.
733, 28 L. Ed. 1138, 5 Sup. Ct. 741, holding act passed by the first legis-
\
6 Wheat. 264r-448 NOTES ON U. S. REPORT^ S. 1114
4
lature, in executing a constitutional power, is a contemporary exposition,
entitled to much weight; The Laura, 114 U. S. 416, 29 L. Ed. 148, 5 Sup. Ct.
883, holding that the granting of remissions of penalties by officers other
than President is not an invasion of the pardoning power; Auffmordt y.
Hedden, 137 U. S. 329, 34 L. Ed. 680, 11 Sup. Gt. 109, determining the
conclusive effect of appraisal of dutiable goods; McElvain v. Mudd, 44
Ala. 54, 4 Am. Bep.^ 1J.0, holding act relating to fugitives from labor con-
stitutional; Warner v. Steamer Uncle Sam, 9 Cal. 722, 723, holding Su-
preme Court of United States has appellate jurisdiction over State courts;
People V. Lowenthal, 93 111. 200, construing State Constitution; People v.
Thompson, 155 111. 485, 40 N. E. 317, sustaining validity of statute ; Board of
Commrs. v. Bunting, 111 Ind. 145, 12 N. E. 151, holding practical construc-
tion of statute equivalent to positive law; as also in State v. Harrison, 116
Ind. 308, 19 N. E. 150, and Board of Commrs. v. Gwin, 136 Ind. 572, 22
L. B. A. 409, 36 N. E. 241, holding same ; Hovey v. State, 119 Ind. 388, 21
N. E. 890, holding practical exposition of Constitution of controlling force;
dissenting opinion in Griswold v. Hepburn, 2 Duv. (Ky.) 55, majority hold-
ing Congress cannot make treasury notes legal tender; Harrison v. Com-
monwealth, 83 Ky. 171, holding practical construction of a statute con
trolling ; as also ix^ Trustees of C. C. C. etc. v. Manning, 72 Md. 130, 19 Atl.
603, to same effect ; Winchester v. Glazier, /162 Mass. 323, construing part-
nership articles; Detroit Ry. Co. v. Mills, 85 Mich. 647, 48 N. W. 1009,
following practical construction of a statute; likewise in Franklin v. Kelley,
2 Neb. 8 ; State v. Holcomb, 46 Neb. 94, 64 N. W. 439, holding that con-
temporaneous exposition in doubtful cases is conclusive ; Metropolitan Bank
v. Van Dyck, 27 N. T. 427, holding Congress can make treasury notes legal
tender; People v. Carr,'lOO N. Y. 243, 5S Am. Rap. 165, 3 N. E. 85, holding
that legislative action, so closely following the adoption of constitutional
provision, is entitled to great weight in construing such provision ; Tillman
V. Cocke, 9 Baxt. 451, construing legislative powers; dissenting opinion in
Trout etc. Club v. Mather, 68 Vt. 354, 3S L. R. A. 574, 35 Atl. 329, as to
"boatable waters"; Bridges v. Shallcross, 6 W. Va. 576, and France v.
Connor, 3 Wyo. 463, 27 Pac. 576, construing statutes; Pri^ v. Pennsyl-
vania, 16 Pet. 621, 10 L. Ed. 1091; and Ex parte Gist, 26 Ala. 164, arguendo.
Distinguished in Lottery Case, 188 U. S. 369, 47 L. Ed. 606, 23 Sup. Ct.
332, holding carriage of lottery tickets from one State to another by express
company is interstate commerce and under regulations of Congress; State
V. Wrightson, 56 N. J. L. 209, 210, 22 L. R. A. 559, 28 Atl. 65, holding con-
temporaneous construction will not abrogate the plain letter of a law.
Congress has power to exercise exclusive legislation over District of
Columbia.
Approved in Lyons v. Bank of Discount, 154 Fed. 393, 394, 396, 397, act
of Congress that banking companies, organized under Federal law and hav-
ing offices in District of Columbia, are subject to national banking act, is
enforceable throughout Union; Craighill v. Van Riswick, 8 App. D. C.
214, act of Congress assessing lands adjoining park to pay expense of park
is void; Roach v. Van Riswick, McAr. & M. (D. C.) 179, act of District of
1115 COHEN V. VIRGINIA, 6 Wheat. 264-448
Columbia making judgments obtained in this court liens on equitable in-
terest in real estate is void as an act of general legislation which Congress
cannot del^ate ; Mattingly v. District of Columbia, 97 U. S. 690, 24 L. Ed.
1099, holding Congress may confirm the proceedings of a board in the
District.
Distinguished in Bradley v. Fisher, 7 D. C. 60, criminal court of District
of Columbia is creature of Congress, but is not on that account court of the
United States.
•
Congress has power to legislate exclusively over territory ceded to United
States.
Approved in United States v. Heinszen, 206 U. S. 384, 11 Ann. Oas. 688,
51 L. Ed. 1103, 27 Sup. Ct. 742, Congress has power to ratify illegal collec-
tion of duties on imports into Philippine Islands levied under President's
order; United States v. Ames, 1 Wood. & M. 85, Fed. Cas. 14,441, holding
State laws cannot be permitted to embarrass the object of the cession;
United States v. Baum, 74 Fed. 45, holding Federal courts can punish
crime committed in a territory since admitted as a State ; Grether v. Wright,
75 Fed. 757, 758, 43 U. S. App. 770, holding Congress has power to exempt
bonds of District of Columbia from State or municipal taxes ; Unitec[ States
V. Qreiner, 26 Fed. Cas. 39, 40, holding the taking of a fort in Georgia,
which had been ceded to the United States, to be treason.
Act of Oongress should not be so construed as to interfere with penal laws
of State, unless its language renders such* construction inevitable.
Cited in Commonwealth v. Holbrook, 10 Allen, 203, holding pa3nnent
of license fee to United States, does not authorize sale of liquor in a State
in violation of its domestic laws ; Lacey v. Palmer, 93 Va. 169, 57 Am. St.
Rep. 802, SI L. B. A. 826, 24 S. E. 932, holding State can pass law forbid-
ding betting, though race is to be in another State.
Right of corporation to purchase own stock. Notej 61 L. B. A. 621.
Miscellaneous. Cite^ in Berlinger Gramaphone Co. y. Seaman, 108 Fed.
716, holding issuance of citation after time for appeal has expired does not
defeat jurisdiction of appellate court; Ex parte Crane, 5 Pet. 206, 8 L. Ed.
98, and Commonwealth v. Casey, 12 Allen, 220, as to argument of counsel ;
apparently to no particular point decided in Bains v. The Schooner James, 1
Bald. 561, Fed. Cas. 756, Perry Mfg. Co. v. Brown, 2 Wood. & M. 455, Fed.
Cas. 11,015 , Poole v. Nixon, 9 Pet. App. 771, 19 Fed. Cas. 993, 9 L. Ed. 305 ,
Tilton V. Railroad Co., 35 La. Ann. 1068, Bledsoe v. Railroad Co., 40 Tex.
56^, 569 , Homer v. United States, 147 U. S. 462, 37 L. Ed. 242, 13 Sup.
Ct 414; Draper v. Gorman, 8 Leigh (Va.), 634, Texas v. Lewis, 12 Fed. 5,
In re Brinkman, 7 B^nk. Reg. 426, 4 Fed. Cas. 147, Ex parte Andrews, 40
Ala. 657, Delafield v. Illinois, 2 Hill, 169, 171, Arapahoe Co. v. Railroad
Co., 4 Dill. 280, Fed. Cas. 502, and Ex parte Crane, 5 Pet. 222, 8 L. Ed. 104,
enoneously in Connoley v. Cheesborough, 21 Ala. 168, and Broadwell v.
Swigert, 7 B. Mon. 42; Worcester v. Georgia, 6 Pet. 566, 8 L. Ed. 503, as
an instance of where records of State courts were certified by the court;
6 Wheat. 44^-452 NOTES ON U. S. REPORTS. U16
Trust Co. V. Maquillan, S'Dill. 380, Fed. Cas. 4668, as illustrating tendency
of State courts to cripple Federal jurisdiction; People v. Taylor/ 3 Denio,
94, as to what is a sufficient description in indictment for selling lottery
tickets ; Wheeling v. Mayor, 1 Hughes, 98, Fed. Cas. 17,502, to point that
corporations have the powers expressly granted, and those necessary to
carry these into effect j Talcott v. Pine Grove, 1 Flipp. 156, Fed. Caa. 13,735,
to point that citizen has a right to rely upon the action of the sovereignty.
6 Wheat. 448-450, 5 L. Sd. 302, aiBBONS ▼. OaDEN.
Decree of highest State court, affirming ordco: refusing to dissolve Injunc-
tion, Is not final decree from which appeal lies to Supreme Court.
Cited in The Palmyra, 10 Wheat. 504, 6 L. Ed. 376, holding decree af
restitution is not final, when damages are unascertained; Verdent v. Cole-
man, 18 How. 86, 15 L. Ed. 272, following rule; The Nacoohee etc. Co. ▼.
Davis, 40 Ga. 318, holding that granting or refusing injunction in pending
cause, is not a final judgment; Ringgold's Case, 1 Bland Ch. 17, holding
there can only be an appeal from a final decree. See also note to Williams
V. Field, 60 Am. Dec. 433, that an injunction pendente lite is not a final
decree.
Distinguished in Poole v. Nixon, 9 Pet. Appx. 770, 19 Fed. Cas, 1000,
holding Circuit Court lias cognizance of a bill of review, after an appeal
to the Supreme Court, if it is brought on newly discovered evidence.
What adjudications of State courts reviewable in Federal Supreme
Court. Note, 62 L. B. A. 516.
Miscellaneous. Erroneously cited in Stoutenburgh v. Hennick, 129 U. S.
150, 32 L. Ed. 640, 9 Sup. Ct. 258.
6 Wheat. 450-452, 5 L. Ed. 302, SXTUJVAN ▼. FULTON STEAMBOAT OO.
Jurisdictional facts must appear on the record.
Approved in Taylor v. Weir, 171 Fed. 640, 96 C. C. A. 438, citizenship
of president of joint-stock company, not real partyin interest, is unavail-
ing to give Federal court jurisdiction; dissenting opinion in Marshall v.
Baltimore & O. R. R. Co., 16 How. 340, 348, 350, 14 L. Ed. 964, 968, 96^
majority holding that an averment that defendants are a Maryland cor-
poration will give jurisdiction; dissenting opinion in Dodge v. Woolsey,
18 How. 364, 15 L. Ed. 415, majority holding stockholder, being resident
of another State, may file his bill against bank in Federal court; dissent-
ing opinion in Dred Scott v. Sandford, 19 How. 473, 15 L. Ed. 728, majority
holding Circuit Court has not jurisdiction of suit brought by a free negro,
since he is not a citizen; special opinion of Daniel, J., in Philadelphia ete.
R. R. Co. V. Quigley, 21 How. 216, 16 L. Ed. 78, deciding that under gen-
eral issue, no question could be raised as to the capacity of parties to
sue; Hornthall v. The Collector, 9 Wall. 565, 19 L. Ed. 562, holding suit
could not be maintained where jurisdictional facts were not averred; Mail
Co. V. Flanders, 12 Wall. 135, 20 L. Ed. 251, dismissing bill where both
parties were citizens of same State; 6race y. Insurance Co., 109 U. S. 283,
1U7 NOTES ON U. S. REPORTS. « Wheat. 452-475
284, 27 L. Ed. 934, 9S5, 3 Sup. Ct. 210, 211, holding an averment that
parties reside in, or that a firm does business in, or is ''of" a particular
State, is insufiicient to show citizenship; Chapman v. Barney, 129 U. S.
681, 32 L. Ed. 801, 9 Sup. Ct. 427, holding jurisdictional facts must clearly
appear in the record ; Shaw y. Mining Co., 145 U. S. 451, 36 L. Ed. 772, 12
Sup. Ct. 938, holding a corporation incorporated in one State cannot be
compelled to answer in a Circuit. Court held in another State; The Fidel-
iter, 1 Abb. (U. S.) 579, 1 Sawy. 156, Fed. Cas. 4755, holding District Court
had no jurisdiction, where it did not appear that seizure was prior to the
eoilimencement of the action ; Speigle v. Meredith, 4 Biss. 126, Fed. .Cas.^
13,227, holding bill must allege jurisdictional facts; as also in Donaldson
V. Hazen, Hempst. 424, Fed. Cas. 3984; United States v. Woolsey, 28 Fed.
Cas. 767, and Blair v. Manufacturing Co., 7 Neb. 154, all to same effect;
Merrill v. Jones, 8 Port. 557, holding consent of parties cannot confer
jurisdiction not possessed; Parkhurst v. Kinsman, 3 Wood. A M. 174, Fed.
Cas. 10,761, arguendo.
6 Wheat. 452-463, 5 !•. Ed. 803, THE JONQT7ILLS.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. R. A. 850.
6 Wheat. 453-475, 5 Ii. Ed. 303, HUGHES v. BIiAKE.
Positive denial in answer of matter in bill must be overcome "fyy more tes-
timony than that of one witness.
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 pur-
chase price independently of recitals in deed; Tyson v. Decatur Land Co.,
121 Ala. 417, 26 South. 508, holding, upon proof of averments in plea to
bill, the bill should be dismissed ; Tobey v. Leonards, 2 Wall. 430, 17 L. Ed.
845, holding evidence sufficient to overcome answer; Voorhees v. Bone-
steel, 16 Wall. 30, 21 L. Ed. 271, where evidence was insufficient ; as also in
Gq^den v. Kimmell, 99 U. S. 206, 25 L. Ed. 433, Monroe C. Co. v. Becker,
147 U. S. 54, 3? L. Ed. 76, 13 Sup. Ct. 220, Clark v. Hackett, 1 Cliff. 278,
Fed. Cas. 2823, Delano v. Winsor, 1 Cliff. 506, Fed. Cas. 3754, Tobey v.
Leonard, 2 Cliff, i^l. Fed. Cas. 14,067, all holding evidence insufficient;
Parker v. Phetteplace, 2 Cliff. 79, Fed. Cas. 10,746, Hayward v. Bank, 4
Cliff. 296, Fed. Cas. 6273, and Gilman v. Libbey, 4 Cliff. 459, Fed. Cas. 5445,
holding evidence insufficient to overcome answer; as also in Miles v. Miles,
32 N. H. 166, 64 Am. Dec' 367 ; Bellows v. Stone, 18 N. H. 472, holding
matter in answer, whether affirmative or negative, if responsive to the bill;
must be so overcome; Scammon v. Cole, 3 Cliff. 479, Fed. Cas. 12,432, but
decision on other grounds; in following cases to point that answer is not
evidence as to matter not set up in the bill: Boone v. Chiles, 10 Pet. 209,
211,^^9 L. Ed. 399, refusing to admit deed not referred to in answer; Tilgh-
man v. Tilghman, Bald. 491, 495, Fed. Cas. 14,045, holding a party must
rely on case stated in his bill or answer; Byers v. Fowler, 12 Ark. 286, 288,
54 Am. Dec. 287, 289, holding, where answer failed to aver want of notice
y
6 Wheat. 453-476 NOTES ON U. S. REPORTS. U18
of f randy he could not sustain his title; Brown ▼. Welch, 18 HI. 346, 68 Am.
Dec. 550, holding one defending against a previous unrecorded equitable
title must prove payment of purchase money; Heatherly v. Hadley, 4 Or.
19, holding proof cannot aid an allegation of service.
Distinguished in Hutson v. Jordan, 1 Ware, 388, Fed. Gas. 6959, holding
there is no such rule in admiralty; Barraque v. Siter, 9 Ark. 550, holding,
where answer gives a circumstantial accoCint inconsistent with its denial,
testimony of a single witness is sufficient; Wright v. Cornelius, 10 Mo. 186,
holding declarations of one not a proper party is not evidence against the
other defendant; Busby v. littlefield, 33 N. H. 85, where answer set up
affirmative allegations.
A replication to a plea admits its snlBciency in point of law. '
Approved in Butler Brqs. Shoe Co. v. Umted States, 156 Fed. 5, 84
C. C. A. 167, filing replication after /exception to defense that foreign corpo-
ration doing business in State without license had been overruled does not
estop complainant from again questioning that defense; Glucose etc. Co.
V. Douglass & Co., 145 Fed. 951, in suit for infringement of patent, plea
setting up single defense of noninfringement is not good plea; Mutual Ldfe
Ins. Co. V. Blair, 130 Fed. 973, where insured died after eommencement
of suit to cancel policy for fraud, but before answer, whereupon action on
policy was brought, plea in bar alleging insured's death , and bringing and
pendency of such action at law was not available as objection to want of
equity ; Barber v. National Carbon Co., 129 Fed. 377, 64 C. C. A. 40, apply-
ing principle in suit for infringement of patent; Qilberson v. Cook, 124
Fed. 987, holding under United States Comp. Stats. 1901, p. 583, Federal
court will not try title to mining claim where complaint and answer both
allege possession; Reavis v. Reavis, 101 Fed. 23, holding motion to dismiss
bill for want of jurisdiction is not waiver of other defenses; Daniels v.
Benedict, 97 Fed. 374, holding if sufficiency of plea is not questioned, but
replication is filed , defendant is entitled to dismissal of bill if facts pleaded
are established; Peoples v. Ault, 117 Md. 634, 84 Atl. 61, order overruling*
plea to part of bill with leave to file amended answer is not directly appeal-
able, but reviewable on appeal from final decree; Rhode Island v. Massa-
chusetts, 14 Pet. 257, 10 L. Ed. 445, following rule; also Myers v. Dorr,
13 Blatchf . 26, Fed. Cas. 9988, and Cottle v. Krementy, g5 Fed. 495, ruling-
similarly ; National etc. Co. v. Beam Co., 83 Fed. 29, holding proper office
of plea is to interpose some conclusive defense so suit may be determined
without a hearing on the merits; Reissner v. Anness, 20 Fed. Cas. 513,
holding if replication is found true in fact, bill* is dismissed as a matter of
course; Denver v. Lobenstein, 3 Colo. 219, holding same where plea was
res adjudicata ; Rouskulp v.: Kerschner, 49 Md. 522, but plaintiff may con-
trovert its truth ; Bassett v. Company, 43 N. H. 253, discussing rules appli-
cable to pleas in equity ; Hartman v. Evans, 38 W. Va. 672, 18 S. E. 811,
holding, after replication is filed, exceptions to answer are treated as aban-
doned ; Ely V. Wilcox, 20 Wis. 528, 91 Am. Dec. 438, dismissing bill, though
plea replied to was bad, on proof of facts as pleaded; Greene v. Harris^
11 R. I. 33, arguendo. .
1119 NOTES ON U. S. REPORTS. 6 Wheat. 475-614
Distingnished in Loderberg y. Armstrong, 116 Fed. 710, holding under
equity rule 33, filing of general replication to plea in bar is not admission
of sufficiency of plea; Theisen v. Whiddon, 60 Fla. 376, 53 South. 643,
under statutory rule, complainant may obtain relief according to equities
where upon replication plea is proven and decree will not be reversed except
for error on merits; Farley v. Kittson, 120 U. S. 314, SO L. Ed. 688, 7
Sup. Ct. 539, holding at the hearing upon plea and replication no fact is
in issue but the truth of the matter pleaded; also Pearce v. Rice, 142 U. S.
41, 35 L. Ed, 930, 12 Sup. Ct. 135, Horn v. Detroit etc. Co., 150 U. S. 625,
S7 L. Ed. 1203, 14 Sup. Ct. 218, United States v. Land Co., 148 U. S. 40,
S7 L. Ed. 359, 13 Sup. Ct. 461, holding defendant may set up some special
matter by plea and thus defeat recovery; Green v. Bogue, 158 U. S. 500,
39 L. Ed. 1069, 15 Sup. Ct. 983, holding plaintiff may properly ask court
to review decree of court below, sustaining the sufficiency of defendant's
pleas ; Matthews v. Manufacturing Co., 18 Blatchf . 85, 87, 2 Fed. 233, 234,
overruling plea where it merely denied an averment in the bill ; Seebold v.
Lockner, 30 Md. 137, holding upon record as amended it was necessary for
appellate court to decide whether the pendency of prior suit was a bar;
Swayze v. Swayze, 37 N. J. £q. 186, holding rule not applicable to negative
pleas; Greene v. Harris, 9 R. I. 409, allowing party to withdraw replica-
tion in order to question the sufficiency of the plea.
6 Wheat. 475-481, 5 U Ed. 309, BABXm ▼. COLEMAN.
97 Virginia law defendant may enter special ball and defend the rait, at
any time before final judgment, bnt if he appears and pleads, or confesses,
without giving special hall, the appearance hall is discharged.
Cited in Gilliam v. Allen, 4 Rand. 502, holding clerk cannot, of his own
motion, receive special bail.
If Joint Judgment is erroneous as to one, it must he reversed as to the other.
Cited to this point and applied in Hamilton v. Knight, 1 Blackf. (Ind.)
26, holding, if idSidavit against two joint debtors be insufficient as to one,
it will not authorize an attachment of the property of both.
6 Wheat. 481-614, 5 L. Ed. 311, PBEVOST ▼. QSATZ.
To establish existence of trust onus probandl is on one alleging it.
Approved in In re Foss, 147 Fed. 792, where husband free from debt paid
consideration for real estate which was conveyed to wife, burden is on one
seeking to establish resulting trust in husband to overcome presumption
that voluntary settlement on wife was intended : Elliott v. Elliott, 3 Alaska,
362, 363, refusing to issue decree of si>ecific performance of alleged contract
to convey half interest in mining claims; WindmuUer v. Clarkson, 2 Alaska,
300, applying rule to grubstake contract ; Copper River Min. Co. v. McClel-
Ian, 2 Alaska, 144, 145, applying rule in suit to establish trust in mining
claim; Cascaden v. Dunbar, 2 Alaska, 413, arguendo; Hopkins v. Grimshaw,
165 U. S. 352, 41 L. Ed. 742, 17 Sup. Ct. 404, and Troll v. Carter, 15 W. Va.
583, holding evidence insufficient to establish a trust; Walker v. CarringtoUi
6 Wheat. 481v^l4 NOTES ON U. S. REPORTS. 1120
74 111. 453, holding, after lapse of time, the mdst clear and satisfactory
proof is required to prove fraud; Rochester y. Levering, 104 Ind. 570, 4
N. E. 208, holding that defendant need only make it certain to a common
intend that price was fair, since sfo many years had elapsed ;' Harris v. Brat-
ton, 34 S. C. 267, 13 S. E. 450, holding lapse of time should be considered
in determining existence of a trust.
Agent acquiring property tbrougb defect In title of principal holds as trus-
tee for him.
Approved in Michoud v. Girod, 4 How. 556, 11 L. Ed. 1099, holding agent
or trustee cannot purchase at his own sale; White v. Ward, 26 Ark. 447,
holding any benefit derived from such a purchase inures to the benefit of
the cestui que trust; Arnold v. Cord, 16 Ind. 178, holding if one verbally
agreeing to bid in land for another at a sheriff's sale, takes title in his own
name, he will be decreed a trustee; MacGregor v. Gardner, 14 Iowa, 337,
treating as void conveyance by argent without consideration so he might
acquire title himself; Sypher v. McHenry, 18 Iowa, 239, setting aside sale
where trustee was interested in the purchase; Coffee v. Rufifin, 4 Cold. 512,
upholding purchase by trustee of trust property where transaction was
shown to be fair; Lamar v. Hale, 79 Va. 158, holding partners can acquire
partnership property only for benefit of the firm.
Where fraud is concealed, lapse of time is no bar to enforcement of a trust.
Approved in Baker v. Schofield, 221 Fed. 334, 136 C. C. A. 320, suit by
receiver of national bank to recover real estate fraudulently transferred
by former receiver, on secret trust for himself not barred by laches where
facts concealed; Schofield v. Baker, 212 Fed. 513, action by receiver of
national bank against prior receiver to charge with trust property sold for
his benefit and conveyed to .corporation controlled by him not barred by
laches where facts not known; Russel v. Huntington Nat. Bank, 162 Fed.
869, 89 C. C. A. 558, where intestate was trustee of secret trust, statute of
limitations did not begin to run against administratrix until right of action
accrued on discovery of fraud; Pryor v. Mclntire, 7 App. D. C. 431, 432,
action to cancel deed not barred by laches where trustee carries into effect
fraudulent scheme against simple-minded cestuis que trust; Detroit Trust
Co. V. Goodrich, 175 Mich. 179, Ann. Oas. 1915A, 821, 141 N. W. 886, cause
of action against innocent shareholder receiving dividends in impairment
of capital is barred by statute of limitations ; Patterson v. Hewitt, 11 N. M.
42, 55 L. B. A. 658, 66 Pac. 565, applying rule to verbal trust; Sunter v.
Sunter, 190 Mass. 456, 77 N. E. 498, suit by wards to avoid sale of lands
by guardian indirectly to himself not barred as stale claim though not
brought within limitation fixed by Rev. Laws, c. 202, § 24, they having
brought it soon after ascertaining fraud; Michoud v. Girod, 4 How. 561,
11 L. Ed. 1102, holding that within what time a constructive trust will be
barred depends upon the circumstances of the case; Mclntire v. Pryor,
173 U. S. 55, 43 L. £d. 612, holding gross fraud did away with defense of
. laches; Philippi v. Philippe, 115 U. S. 157, 29 L. Ed. 340, 5 Sup. Ct. 1184,
Kirby v. Lake Shore etc. R. R. Co., 120 U. S. 136, ,30 L. Ed. 572, 7 Sup. Ct.
U21 PREVOST V. GRATZ. 6 Wheat. 481-614
433, and Dugan v. O'Donnell, 68 Fed. 989, all holding time runs from when
fraud was or should have been discovered; Baker v. Whiting, 3 Sumn. 486,
Fed. Cas. 787, appljang rule where trust was not repudiated ; Naddo v. Bar-
don, 47 Fed. 789 (see 51 Fed. 498, 4 U. S. App. 642) ; Merrill v. Monticello,
66 F6d. 166, and Hayden v. Thompson, 71 Fed. 69, 36 U. S. App. 361, holding
implied trUst barred by lapse of time unless there had been a concealment
of the cause of action; Snyder v. McComb, 39 Fed. 298, holding express
trust not barred by lapse of time ; Kelley v. Boettcher, 85 Fed. 63, 56 U. S.
App. 376, holding no time runs as long as a fraud is concealed ; Bunnel v.
Stoddard, 4 Fed. Cas. 683, holding time not a bar to fraud of trustee;
McKneely v. Terry, 61 Ark. 543, 33 S. W. 957, holding action not barred,
where defendant was guilty of fraud; Farwell v. Telegraph Co., 161 HI.
696, 44 N. E. 914, holding time does not run until discovery of fraud ; Pratt
V. Thornton, 28 Me. 362, 48 Am. Dec. 496, holding tlie trust could not be
barred; McDowell v. Goldsmith, 2 Md. Ch. 390, holding statute of limita-
tions runs from time of discovery of fraud or mistake; Manaudas v. Mann,
22 Or. 531, 30 Pac. 424, holding statute of limitations has no application
to an express trust; Wood v. Fox, 8 Utah, 401, 32 Pac. 52, holding time
started to run from disavowal of trust ; Johnston v. Smith, 21 Tex. 730, put-
ting decision on other grounds ; Robinson v. H^ook, 4 Mason, 153, Fed. Cas.
11,956, arguendo.
Distinguished in Badger v. Badger, 2 Wall. 92, 17 L. Ed. 838, refusing to
give relief where the trust was not clearly established, nor the facts shown
to have been fraudulently concealed; Clarke v. Boorman, 18 Wall. 506, 21
L. Ed. 907, where there w,as no in tentionaV fraud on part of trustee; Speidel
V. Henrici, 120 tl. S. 386, 30 L. Ed. 719, 7 Sup. Ct. 611, and Bnincr v.
Finley, 187 Pa. St. 406, 41 Atl. 340, holding this rule not applicable where
trust had been openly disavowed; De Mares v. Gilpin, 15 Colo. 83, 24 Pac.
670, holding time runs in resulting trust from when fraud should have been
discovered; Humbert v. Trinity Church, 24 Wend. 617, holding fraud is no
excuse for negligence in bringing action.
By analogy to rule of law, lapse of time raises presumption of exttnguidi-
ment of trust, payment of debt or surrender of deed.
Approved in Barstow v. Bickett, 122 Fed. 146, holding in equity that heirs
of insane person could redeem lands sold on judg^ients against deceased
for grossly inadequate price upon paying what was equitably due; William-
son V. Monroe, 101 Fed. 330, holding court of equity will not entertain plea
of laches before court of law would sustain plea of limitation; Holmes v.
Cleveland, C. & C. R. Co., 93 Fed. 107, 111, holding after fifty years record-
ing of plat win be presumed from fact that it was left for record with
recorder and was recognized ahd used; Cooksey v. Bryan, 2 App. D. C. 56i,
resulting trust declared after thirty years in favor of wife's executor in
property purchased by husband to secure wife's share in father's estate
upon proof that such trust intended; Piatt v. Vattier, 9 Pet. 417/ 9 L. Ed.
178, Bowman v. Wathen, 1 How. 194, 11 L. Ed. 99, and Badger v. Badger,
2 Cliff. 155, Fed. Cas. 718, holding various actions barred on this ground;
1—71
6 Wheat. 481-ol4 NOTES ON U. S. REPORTS. 1122
Fisher v. Boody, 1 Curt. 219, Fed. Cas. 4814, refusing to rescind a deed,
where plaintiff was guilty of laches; Bowman v. Wathen, 2 Mcliean, 396,
Fed. Cas. 1740, holding claim barred; Ferson v. Sanger, 1 Wood. & M. 148,
Fed. Cas. 4752, holding long occupation, without complaint, should bar
relief for mistake ; Hinchman v. Kelley, 54 Fed. 66, 7 U. S. App. 481, refus-
ing to enforce a trust because of laches; Duncan y. Williams, 89 Ala. 349,
7 South. 418, holding, after lapse of time, court will presume almost any
fact to sustain decree; James y. James, 41 Ark. 305, refusing to enforce
resulting trust; Perkins v. Cartmell, 4 Harr. 280, 42 Am. Doc. 761, holding
trust extinguished; Akins v. Hill, 7 Ga. 579, holding bill barred; Carpenter
V. Carpenter, 70 111. 465, refusing to enforce a State claim; McDearmon v.
Burnham, 158 111. 63, 41 N. E. 1097, holding right to redeem from fore-
closure sale barred by laches; Reynolds v. Sumner, 126 111. 71, 9 Am. St.
Rep. 528, 1 L. B. A. 330, 18 N. E. 337, lapse of time only one of many cir-
cumstances from which conclusion of laches may be drawn; Valentine v.
Wysor, 123 Ind. 59, 7 L. E. A. 796, 23 N. E. 1080, refusing to open up
account, though there was irregularity ; Salmon v. Clagett, 3 Bland Ch. 142,
holding defendant may have the benefit of the presumption arising from
lapse of time, though not mentioned in his pleading; Steiger y. Hillen, 5
Gill & J. 130, rejecting claim of widow for damages against alienee of
husband; Gregg v. Gregg, 15 N. H. 198, refusing to make guardian account;
Starkey v. Fox, 52 N. J. Eq. 768, 29 Atl. 215, refusing to grant relief;
Jackson v. Schauber, 7 Cow. 199 (reversed, 2 Wend. 47), holding mortgage
on which no interest has been paid for years, will not bar ejectment by
mortgagor; Clark v. Potter, 32 Ohio St. 59, and Bargamin v. Clarke, 20
Gratt. 551, holding equity of redemption barred ; White v. Loring, 24 Pick.
322, and Townsend v. Downer, 32 Vt. 206, holding grant may be presumed
from long possession; Houston v. Matthews, 1 Yerg. 121, presuming loca-
tion of boundaiy; Beard v. Smith, 6 T. B. Mon. 491, discussing reason for
and universality of laws of limitations; Ambler v. Warwick, 1 Leigh (Va.),
194, arguendo.
Distinguished in James y. Atlantic D. Co., 3 Cliff. 621, Fed. Cas. 7177,
refusing to apply rule in case of trust; Blake v. Ward, 20 Ohio, 242, holding
that no conveyances could be presumed in that case; Paschall v. Hinderer,
28 Ohio St. 578, 579, 581, holding claim not a stale one.
When equity will refuse relief because of laches. Note, 54 Am. Dec.
130.
Stale claims — The rule governing trusts. Note, 2 Am. St. Bep. 799,
801.
Effect of limitations on trusts. Note, 12 Am. Dec. 873.
Statute of limitations as between trustor and trustee. Note, 99 Am.
Dec. 889, 393.
Application of statute of limitations as between trustee and beneficiary
of express trust. Note, 8 Ann. Gas. 200.
Running of limitations in case of breach of fiduciary duty. Note,
16 £. B. 0. 272.
1123 NOTES ON U. S. REPORTS. 6 Wheat. 514-528
Miscellaneous. Cited erroneously in Kennedy v. Kennedy^ 2 Ala. 588;
Pipes V. Hardesty, 9 La. Ann. 153, 61 Am. Dec. 203, to point that altera-
tions are presumed to have been made after the execution and delivery
of a deed; MagiU v. Brown, 16 Fed. Gas. 420, to point that a known usage
forms the law of the case and controls statutes and common law.
6 Wheat. 514-619, 5 L. Ed. 319, BOWIE v. HENDERSON.
Under District of Oolnmhia bankruptcy act of 1803, insolvent is not trustee
for creditors in respect to his future property.
Distinguished in In re Eldridge, 2 Hughes, 262, Fed. Cas. 4331, 12 Bank.
R^. 546, holding assignee as to property in his hands is a trustee for cred-
itors.
Recording demand in an insolvent's schedule of debts is sufficient acknowl-
edgment of debt to take it out of statute.
Gited in In re Eldridge, 2 Hughes, 258, Fed. Cas. 4331, 12 Bank. Reg. 342^
holding filing of petition by bankrupt will bar statute; Denny v. Hender-
son, 2 Cr. C. C. 121, Fed. Cas. 3806, holding discharge of insolvent does not
stop statute.
6 Wheat. 519-520, 5 L. Ed. 320, 8FRINO t. SOUTH OAROIJNA INS. OO.
The z«B in litlgatieit may be sold by ord«r of court and proceeda invested,
notwithstanding pendency of appeal.
Approved in Riverdale Cotton Mills v. Alabama & G. Mfg. Co., Ill Fed.
433, holding, pending appeal from* Circuit Court of United States, that court
has power to grant injunction restraining action involving same question
subseqi^ntly commenced in State court ; McKinnon-Young Co. v. Stockton^
53 Fla. 764, 44 South. 246, corporation could not grant right to take tur-
pentine from lands after court had given custody and control of lands to
receiver; Lamb v. Rowan, 81 Miss. 371, 33 South. 4, holding in action for dis-
solution of partnership, accounting, and appointment of receiver, an appeal
from decree but not from order appointing receiver, appeal did not affect
rights of receiver; May v. Printup, 59 Qa. 135, holding, where the proceed-
ing is against property, court may preserve it by interlocutory orders,
during and after appeal ; Latimer v. Hanson, 1 Bland Ch. 56, holding court
may order trustee to invest proceeds of a sale, and, if he fails or. refuses,
may hold him for compound interest; Williams' Case, 3 Bland Ch. 217,
holding trustee could be ordered to rent estate; Moran v. Johnston, 26
Gratt. 110, holding pending appeal, receiver may be appointed to rent
property; likewise in Beard v. Arbuckle, 19 W. Va. 148, notwithstanding
case is pending upon a supersedeas.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. R. A. 850, 868.
6 Wheat. 520-528, 5 K Ed. 321, UNITED STATES T. BIX PACKAGES OF
GOODS.
Making correct post entry does not bar forfeiture for prior fraudulent en-
try under act of 1799.
6 Wheat. 628^41 NOTES ON U. S. REPORTS. 1124
Approved in United States v. One Purple Cloth Costume, 158 Fed. 900,
person making false declaration as to dutiable articles in baggage cannot
by later lawful entry save them from forfeiture; Our House v. State,
4 G. Greene, 175, upholding code provision prohibiting sale of liquor by
glass and authorizing proceedings in rem against dram-shops.
6 Wheat. 528-541, 5 K Ed. 322, BRASHIEB T. GRATZ.
Time is not generally of essence of contract of sale in equity, but court
may refuse specific performance on that ground.
Approved in Rexford v. Southern Woodland Co., 208 Fed. 309, specific
performance of contract for sale of timber land refused after lapse of time
where parties intended time to be of essence of contract; Joffrion v. Gum-
bel, 123 La. 405, 48 South. 1012, court refuses to decree specific performance
of option to purchase land after lapse of long time ; Taylor v. Long^worth,
14 Pet. 175, 10 L. Ed. 406, giving specific performance, where party made
out a case free from all doubt; Davison v. Davis, 125 U. S. 95, 31 L. Ed.
637, 8 Sup. Ct. 827, refusing specific performance where party waited sev-
eral years before filing bill ; Garnett v. Macon, 2 Brock. 247, 249, Fed. Cas.
5245; s. c. 6 Call (Va.), 347, 349, holding, where time is material, specific
performance may depend on it; Prentice v. Betteley, 2 Low. 295, Fed. Cas.
11,381, refusing specific performance; as also in Mundy v. Davis, 20 Fed.
355, ruling similarly; Green v. Covillaud, 10 Cal. 329, 70 Am. Dec. 735,
where value of land had increased; Durant v. Comegys, 2 Idaho, 944, 28
Pae. 428, where plaintiff did not make out a case free from doubt; Hunter
V. Marlboro, 2 Wood. & M. 203, Fed. Cas. 6908, and Bishop v. Newton, 20
111. 180, giving specific performance, though there had been delays Avery
V. Kellogg, 11 Conn, 571, holding, time waived by conduct of defendant;
Steele v. Branch, 40 Cal. 11, 13, holding time would not work a forfeiture ;
Longworth v. Taylor, 1 McLean, 401, Fed. Cas. 8490, not considering time
essential ; Steele v. Biggs, 22 111. 654, holding, where time is of the essence,
part payment of purchase money will not excuse nonperformance ; Emmons
v. Kiger, 23 Ind. 488, holding conduct of defendant waived time; in
Mathews v. Gilliss, 1 Iowa, 254, Young v. Daniels, 2 Iowa, 130, 68 Am.
Dec. 480, and Kercheval v. Clift, 6 T. B. Mon. 366, 368, holding time not
of the essence of the contract and decreeing specific performance; Locey
V. McMillen, 9 B. Mon. 526, refusing rescission, where party with full
knowledge of facts acquiesces for a long time; Getchell v. Jewett, 4 Me.
362, decreeing specific performance; Rogers v. Saunders, 16 Me. 99, 110,
S3 Am. Dec. 641, refusing specific performance where party delayed ; Jones
V. Robbins, 29 Me. 353, 50 Am. Dec. 596, and Barnard v. Lee, 97 Mass. 94,
decreeing specific performance; Bomier v. Caldwell, 8 Mich. 471, holding
variance between bill and proof as to time of payment not material ; David-
son V. Moss, 6 How. (Miss.) 686, refusing rescission, where vendor removed-
incumbrance on land at time of sale; Lake v. Lewis, 16 Nev. 97, holding
acceptance of money a waiver of default in payment, and purchaser entitled
to a deed; Ewing v. Gordon, 49 N. H. 462, decreeing specific performance;
Seymour v. Delancy, 3 Cow. 519, 15 Am. Dec. 284, holding lapse of time.
1126 BRASHIER v. GBATZ. 6 Wheat. 528-641
together with inadequacy of consideration, justify court in refusing specific
performance; Attorney General v. Purmort, 5 Paige Ch. 629, to the effect
that neglect to pay at specified times was not a forfeiture of his rights;
Edgerton v. Peckham, 11 Paige Ch. 360, and Wilson v. Tappan, 6 Ohio,
174, holding time not of the essence of the contract and decreeing specific
performance; Wiswall v. McGowan, 1 Hoff. Ch. 134, holding time for per-
formance may he extended orally ; Smith y. Christmas, 7 Yerg. 605, refusing
specific performance; Ahhott v. LTEommedieu, 10 W. Va. 712, holding time
is not generally of the essence of a contract for the sale of land; Johnson
V. Burdett T. Co., 53 Pac. 88, refusing specific performance, where time
was expressly made the essence of the contract, and there was a long delay;
Tufts V. Tufts, 3 Wood. & M. 474, Fed. Cas. 14,233, and Eakin v. Raub,
12 Serg. & R. 376, arguendo.
Distinguished in Sneed v. Wiggins, 3 Ga. 99, holding time of the essence
because of the nature of the contract ; Falls v. Carpenter, 1 Dev. & B. Eq.
281, ^8 Ajn. Dec. 612, decreeing speeifie performance, where party n^leeted
to pay purchase money, but continued in possession.
When laches bars relief of specific performance. Note, 54 Ajn. Dec. 138.
By notice either party may compel the other party to fulfill or abandon
the contract. Note, 50 Am, Dec. 678.
Rescission, how and within what time right must be exercised. Note,
74 Am. Dec. 660.
When specific performance of a valid contract will be refused, the
refusal not being because the property is of an]r particular class.
Note, 128 Am. St. Rep. 41S.
Mutuality of obligation i» essential to specific perf ormance.
Cited in Almy ▼. Wilbur, 2 Wood. & M. 384, Fed. Cas. 256, holding the
transaction a debt in equity, though one party was "at liberty" to pay the
money; Rogers y. Saunders, 16 Me. 100, refusing specific performance;
Tufts ▼. Tufts, 3 Wood. & M. 472, Fed. Cas. 14,233, arguendo.
Specific performance of contract of sale of land refused after great lapse
of time and change in value to one in default.
Approved in Boldt v. Early, 33 Ind. App. 442, 104 Am. St. Rep. 255, 70
N. E. 274, following rule ; Rexf ord v. Southern Woodland Co., 208 Fed. 311,
specific performance of contract to sell timber land fluctuating in value
refused where complainant had been given frequent extensions of time and
failed to pay; Presbrey v. Kline, 9 Mackey (D. C), 528, vendee having
repudiated contract of sale of land cannot after price increases obtain
decree of specific performance ; Durant v. Comegys, 3 Idaho, 212, 28 Pac. 428,
holding in contracts for purchase of mining property time is of essence
of contract, and specific performance will be decreed unless n^ligent
delay is accounted for; Johnson v. Burditt Town Co., 7 Kan. App. 138,
53 Pac. 88, holding specific performance of real property will not be ad-
judged vendor when he has failed to perform for ^we years and when there
has been change in the market in the meantime.
6 Wheat. 542-^49 NOTES ON U. S. REPORTS. ' 1126
Miscellaneous. Cited in Manning v. Brown, 8 Bush (Ky.)> 699, ap-
parently not in point; also in Potter v. Titcomb, 10 Me. 52; Finucane v-
Keamey, 1 Freem. Ch. 68, holding part payment of purchase money and
entering into possession take contract out of the statute of frauds.
6 Wheat. 542-649, 5 L. Ed. 326, UNITED STATES v. DAMTELL.
Division of Ctocuit Oourt, on motion iTor new trial, cannot be certified to
Supreme Court, under act of 1802.
Cited in dissenting opinion in Ex parte Crane, 5 Pet. 206, 8 L. Ed. 98,
majority holding Supreme Court has power to issue mandamus commanding
Circuit Court to sign a bill of exceptions; Davis v. Braden, 10 Pet. 289, 9
L. Ed. 429, holding division on motion to rescind order to revive suit
could not be brought up. on certificate of division; Daniels v. Railroad Co.,
3 Wall. 255, 18 L. Ed. 225, dismissing case, where certificate of division
presented questions of fact and law; Ex parte Milligan, 4 Wall. Ill, 18
L. Ed. 292, holding allowance or refusal of writ of habeas corpus may be
certified to Supreme Court; United States v. Rosenburgh, 7 Wall. 581,
19 L. Ed. 268, holding court without* jurisdiction of certificate of division
of opinion, upon a motion to quash an. indictment ; United States v. Sanges,
144 U. S. 321, 86 L. Ed. 449, 12 Sup, Ct. 613, giving history of manner of
bringing up criminal cases upop certificate of division of opinion; United
States V. Rider, 163 U. S. 135, 136, 41 L. Ed. 102, 103, 16 Sup. Ct. 984,
holding certificates under new statute are governed by same general rules
as were formerly applied to certificates of division; Lanning v. London, 4
Wash. 333, Fed. Cas. 8075, applying rule and holding division of opinion
on motion for new trial cannot be certified to the Supreme Court; Taylor
v. Carpenter, 2 Wood. & M. 3, Fed. Cas. 13,785 ; Ayres v. Bensley, 32 Cal.
633, holding division on question of granting a rehearing is a denial of it;
Bagg v. Detroit, 5 Mich. 69, holding Supreme Court has jurisdiction of
questions of law reserved in equity causes; State v. Crocker, 5 Wyo. 398,
40 Pae. 684, holding questions reserved before judgment may come within
the appellate jurisdiction of the Supreme Court; Brown v. Clarke, 4 How.
15, 11 L. Ed. 855, arguendo.
Distinguished in Life etc. Ins. Co. v. Wilson, 8 Pet. 303, 8 L. Ed. 954,
issuing mandamus directing district judge to sign judgment; J^nes v. Van
Zandt, 5 How. 224, 12 L. Ed. 126, where none of the points certified em-
braced things urged merely as reasons for a new trial; United States v.
Chicago, 7 How. 191, 12 L. Ed. 663, where the question occurred before a
•final decision, and involved the right of the debtor, even though one of
discretion; United States v. Gilbert, 2 Sumn. 61, Fed. Cas. 15,204, holding
Supreme Court cannot grant a new trial in a capital case, after a verdict
regularly rendered on a suflBcient indictment; Goddard v. Coffin, 2 Ware
(Dav.), 386, .Fed. Cas. 5490, holding rendering of judgment is a judicial
act and must be done by the court.
Miscellaneous. Cited in Baker v. Biddle, 1 Bald. 406, Fed. Cas. 764, to
point that jurisdiction of Federal courts must be exercised in prescribed
mode.
1127 KERR V. WATTS. 6 Wheat. 55(«65
6 Wheat. 560-^66, 5 L. Ed. 328/KEBB v. WATT&
No one neecf/ be made a party whose rights will not be affected.
Approved in Godchaux v. Morris, 121 Fed. 484, holding in action to en-
force lien on corporation property neither stockholders nor creditors are
necessary parties; Sanche v. Electrolibration Co., 4 App. D. C. 462, pro-
moters of enterprise and trostees to receive property having transferred
all rights and interests to company when formed are not necessary parties
to suit; Ridgely v. Wilmer, 97 Md. 730, 55 Atl. 489, holding though bill
asks relief for complainant and another not party, yet shows complainant
entitled to relief independent of other, it is not objectionable for want of
necessary party, though relief cannot be allowed such other; Cameal v.
Banks, 10 Wheat. 188, 6 L. Ed. 299, holding joinder of improper parties
will not affect the jurisdiction of Circuit Courts in equity, as between
proper parties; Bonaparte v. Railroad Co., 1 Bald. 217, Fed. Cas. 1617,
holding agents of a corporation may be sued in this court, though corpora-
tion not suable here; Society for P. of G. v. Hartland, 2 Paine, 541, Fed.
Cas. 13^55, holding decree cannot affect those not parties to action ; Hickok
V. Elliott, 10 Sawy. 427, 22 Fed. 21, holding in suit to set aside an assign-
ment or conveyance, if grantor of assignor has parted with all his interest
he is not a necessary paity; New Chester W. Co. v. Manufacturing Co.,
53 Fed. 26, 3 U. S. App. 264, holding joinder of unnecessary parties will not
oust jurisdiction; Elliott v. Armstrong, 2 Blackf. (Ind.) 207, holding in
bill by grantee of cestui que trust against trustee, grantor need not be made
a party ; Haggerty v. Wagner, 148 Ind. 639, 89 L. R. A. 889, 48 N. E. 371,
cotenant's wife not necessary party to partition suit ; Wright v. Min. Assn.,
12 Md. 449, holding one without interest, not a necessary party ; as also in
Bourne v. Hall, 10 R. 1. 152, and Burrill v. Garst, 19 R. I. 39, 31 AtL 436.
Rule of equity as to bona fire purchaser, without notice, i» not applicable
to purchasers of military land warrants, under laws of Virginia.
Approved in Caldwell v. Bush, 6 Wyo. 354, 45 Pac. 490, holding act of
Congress, March 3, 1891, regulating rights of bona fide purchasers of final
certificates, does not apply to entry prior to act which had been canceled
by land department ; Sherett v. Presb. Soc., 41 Ohio St. 630, holding person
making first entry has the superior equity, although other party was a pur-
chaser without notice.
Distinguished in Bpsh v. Ware, 15 Pet. 109, 10 L. Ed. 679, holding
doctrine of constructive notice is applicable to military titles, except where
a notorious entry is required or where entry is not specific as to the land.
Miscellaneous. Cited in So. Life Ins. etc. v. Cole, 4 Fla. 363 ; Thompson
V. Burk, 2 Alaska, 251, where defendant located placer claim, but made no
discovery, and plaintiff made subsequent relocation, and thereafter, without
notifying defendant of that fact, contracted with him to dig discovery shaft,
in which he discovered gold, discovery inured to perfect defendant's claim ;
Copper River Min. Co. v. McClellan, 2 Alaska, 144, where agent locates
mines for himself which he ought to locate for his principal, he is trustee
for latter.
\
6 Wheat. 565^76 NOTES ON , U. 8. REPORTS. 1128
6 Wheat. 665-672, 5 L. Ed. 832, LEEDS T. MABINE INS. OO.
Equity will compel one obtaining judgment to deduct therefrom amount
which should have been allowed as setoff in the action at law in which Judg-
ment was obtained.
Approved in Brown v. Pegram, 149 Fed. 520, judgment debtor may en-
join its co^ection on allegation of setoff against beneficial owners, though
setoffs are legal demands or unliquidated, and defendants are nonresidents
or insolvent; North Chicago Rolling Mill Co. v. St. Louis etc. Co., 152 U. S.
615, 616, 88 L. Ed. 672, 14 Sup. Ct. 715, 716, holding insolvency of person
against whom setoff is claimed is a sufficient ground for equitable inter-
ference; Hulbert v. Insurance Co., 2 Sumn. 179, Fed. Cas. 6919, holding
underwriters cannot set off debts due from agent against loss claimed by
him for his principal except the premium on the policy; Davis v. Davis,
72 Fed. 84, 30 U. S. App. 723, holding equitable defenses may not be
pleaded in Federal courts in actions at law, although State statute sanc-
tions it.
Injunction against judgments for defenses existing prior to rendi-
tion. Note, 81 L. R. A. 766.
6 Wheat. 572-^76, 5 L. Ed. 38S, UNION BANE T. HTDE.
Protest of inland bill or of promissory note is not necessary, nor is It evi-
dence of the facts stated in it.
Cited in dissenting opinion in Musson v. Lake, 4 How. 282, 11 L. Ed. 975,
majority holding if notarial protest does not set forth fact of presentation,
it is not competent evidence; Bay v. Church, 15 Conn. 17, 18, holding
notarial protest of promissory note not necessary, though note be indorsed
to an inhabitant of ^ another State; Johnson v. Bank, 29 Ga. 260, holding
notarial fees cannot be recovered, whenever protest is not required; .Kas-
kaskia B. Co. v. Shannon, 1 Gil. (111.) 24, holding notarial. protest of inland
bill not evidence of demand of payment, as also in Taylor v. Bank, 7 T. B.
Hon. 580; Carter v. Burley, 9 N. H. 564, 565, 566, holding protest not
competent evidence of the dishonor of an inland bill; Burk v. Shreve, 39
N. J. L. 216, construing strictly a statute making certificate of notary
competent evidence of presentment of bill ; Smedes v. Bank, 20 Johns. 384,
holding notice to indorser insufficient; Case v. Heffner, 10 Ohio, 183, where
bill was drawn in one State and indorsed to a citizen of another, a protest
was necessary; dissenting opinion in Hall v. Bank, 6»Whart. 613, majority
allowing notarial fees in action against bank on notes; Corbin v. Bank, 87
Va. 664, 24 Am. St. Rep. 675, 13 S. E. 99, applying rule and holding notarial
certificate is not evidence of dishonor of inland bill.
Distinguished in Doughty v. Hildt, 1 McLean^ 334, Fed. Cas. 4027, holding
payees entitled to recover costs of protest, the note being of that character
which makes a protest evidence of demand of payment ; Simpson v. White,
40 N.^ H. 543, holding, under statute, protests are evidence of facts stated
therein.
Protest of negotiable instruments. Note, 43 Am. Dec. 219.
Protest as evidence. Note^ 96 Am. Dec. 60S, 604.
1129 CLARK V. GRAHAM. 6 Wheat. 677-680
Tftidertakliig of fndoner held it waiver of doniand and notice.
Cited in Freeman v. O'Brien, 38 Iowa, 409, holding agreement was not
a waiver; Baker v. Scott, 29 Kan. 137, 44 Ajn. Rep. 629, holding words
"protest waived" amounted to a waiver ; Wall v. Bry, 1 La. Ann. 314 , Bird
V. Le Blanc, 6 La. Ann. 470, and Wilkins v. Gillis, 20 La. Ann. 639, 96 Am.
Dec. 425, construing agreement strictly and holding waiver of protest did
not waive notice ; Stone v. Bradbury, 14 Me. 193, admitting parol testimony
to show ''bond" in contract included any instrument in writing; Lane v.
Steward, 20 Me. 103, admitting parol evidence to prove waiver of demand;
Shove V. Wiley, 18 Pick. 562, holding where clerk produces a printed form
and testified to his belief that notices in question were in that form, the
paper was admissible; Taunton Bank v. Richardson, 5 Pick. 447, holding
jury from acts of indorser could infer a waiver; Farwell v. Trust Co., 45
Minn. 498, 22 Am. St. Rep. 745, 48 N. W. 327, rejecting evidence of verbal
agreement to waive demand and notice at time of indorsement ; Coddington
v. Davis, 3 Denio, 22, 23, holding notice and protest waived ; Bell v. Martin,
18 N. J. L. 169,' admitting parol evidence to identify note declared upon;
Windham Co. Bk. v. Kendall, 7 R. I. 86, holding firm bound by waiver
of partner to person without iA>tice ; Walker v. Popper, 2 Utah, 98, holding
a waiver of notice and protest is also a waiver of demand ; Broun v. Hull, 33
Gratt. 32, holding though protest is waived, party most use due diligence.
Parol to prove waiver of right to demand and notice on part of in-
dorser. Note, 57 Am. Dec. 665.
6 Wlieat. 577-580, 5 L. Sd. 334, CLARK ▼. GRAHAM.
A title to land can only be acquired and lost according to the laws of the
State where situated.
Approved in Olmsted v. Olmsted, 216 U. S. 393, 25 L. R. A. (N. 8.)
1292, 54 L. IkL 53S, 30 Sup. Ct. 292, courts of New York not required to
regard Michigan statute for legitimatizinp: children to control devolution of
title to lands in New York under will ; Clarke v. Clarke, 178 U. S. 191, 44
L. Ed. 1081, 20 Sup. Ct. 875, holding conversion of realty in personal prop-
erty under will is under jurisdiction of State where land is situated;
Thomas J. Baird Inv. Co. v. Harris, 209 Fed. 295, 126 C. C. A. 217, inter-
pretation of Oklahoma statute of frauds not decisive in action brought in
Oklahoma for breach of contract of sale of land situated in North Dakota ;
Southern Pac. Co. V. Western Pac. Ry. Co., 144 Fed. 179, applying principle
in determining title to Oakland waterfront ; Postal Tel. Cable Co. v. South-
ern Ry. Co., 122 Fed. 160, holding in eminent domain proceedings in Federal
court, jury trial cannot be had since law of State where land is situated
will be followed; Deck v. Whitman, 96 Ffed. 884, holding in foreclosure
proceedings in Circuit Court of United States, statutes of State where laiid
is located affecting enforcement of the contract will be followed ; Lewis v.
Herrera, 10 Ariz. 77, 85 Pac. 246, deed not acknowledged as required by
statute is invalid; dissenting opinion in Eadie v. Chambers, 172 Fed. 80,
18 Ann. Oafi. 1096, 24 L. R. A. (N. S.) 879, 96 C. C. A. 561, majority hold-
ing that statute of Alaska requiring execution of deed in presence of two
6 Wheat. 577-680 NOTES ON U. S. REPORTS. 1130
witnesses not invalidated by failure to make such attestation; dissenting
opinion in Burbank v. Conrad, 96 U. S. 298, 24 L. Ed. 726, majority hold-
ing conveyance of land in Louisiana valid without registration; Brine v.
Insurance Co., 96 U. S. 635, 24 L. Ed. 861, holding State statute as to
redemption from foreclosure sale obligatory on Federal courts; Schley v.
Pullman Co., 120 U. S. 580, 30 L. Ed. 791, 7 Sup. Ct. 732, holding deed of
feme covert to have been sufficiently acknowledged; Langdon v. Sherwood,
124 U. S. 82, 31 L. Ed. 346, 8 Sup. Ct. 431, holding under code of Nebraska,
a decree of Circuit Court is evidence of a transfer of title; De Vaughn v.
Hutchinson, 165 U. S. 570, 41 L. Ed. 829, 17 Sup. Ct. 462, applying rules
of descent and alienation of land of Maryland as they were before the Dis-
trict of Columbia was separated from it; Berry v. Seawall, 65 Fed. 747,
31 U. S. App. 30, as to parol partition followed by acquiescence; Summers
v. White, 71 Fed. 108, 36 U. S. App. 395, holding invalid an assignment
not properly witnessed according to State statute; Missouri etc. T. Co. v.
Krumseig, 77 Fed. 40, 40 U. S. App. 620, holding State statute as to usury
binding on Federal courts; Magill v. Brown, JL6 Fed. Cas. 447, holding
decree could not authorize sale of lands situate in another State; In re
Zug, 10 N. B. R. 280, 30 Fed. Cas. 948, holding Federal courts are bound
by local laws and local decisions of State where land is; Hendon v. White,
52 Ala. 605, where acknowledgment was insufficient; Neal v. Gregory, 19
Fla. 368, holding deed not under seal void; Key v. Harlan, 52 Ght. 477,
refusing to admit to probate a will sufficiently witnessed in another State,
but not under our statute ; Doyle v. McQuire, 38 Iowa, 412, holding transfer
valid; Sneed v. Ewing, 5 J. J. Marsh. 465, 22 Am. Dec. 47, holding that
foreign will to pass title must be executed according to our laws; Galpin
V. Abbott, 6 Mich. 37, holding deeds not acknowledged according to our
statute were not entitled to be recorded; Crane v. Reeder, 21 Mich. 61,
4 Ajn. Rep. 434, holding deed invalid; as also in Dodge v. HoUinshead, 6
Minn. 12 (25), 80 Am. Dec. 489, and Roode v. State, 5 Neb. 176, 26 Am.
Rep. 476; Bentley v. Whittemore, 18 N. J. Eq. 373, holding preferential
assignment in another State void as to lands here; Tarpey v. Salt Co., 5
Utah, 212, 14 Pac. 340, holding deed void as to stranger without notice;
Hoadley v. Stephens, 4 Neb. 436, holding deed properly excluded, there
being no evidence of its acknowledgment according to laws of State
where executed; dissenting opinion in Shell v. Duncan, 31 S. C. 573, 5
L. R. A. 831, 10 S. E. 339, majority holding when tax deed states any pro-
ceedings took place, they will be presumed to have taken place regiilarly.
Distinguished in Storman v. Cravens, 29 Ark. 558, holding unacknowl-
edged deed confers an equitable interest; Ross v. Ross, 129 Mass. 245, 37
Am. Rep. 322, holding status of one to inherit is to be ascertained accord-
ing to the law of the domicile ; Moore v. Thomas, 1 Or. 202, declaring mort-
gage attested by one witness will be upheld in chancery; Wood etc. Co. v.
Lee, 4 S. D. 501, 57 N. W. 240, holding personal property mortgage valid,
though not witnessed; Ldnton v. Cooper, 53 Neb. 408, where statute was
different.
Conflict of laws as to executory contract relating to realty. Note, 20
Ann. Oas. 468.
1 131 PRESTON'S HEIRS v. BOWM AR. 6 Wheat. 580-583
Effect on validity of deed between parties thereto of failure to comply
with statutory requirement as to number of attesting witnesses.
Note, 18 Ann. Oas. 1102.
Conflict of laws as to contracts relating to realty. Note, L. R. A*
1016A, 1012, 1020.
Power to convey lands must possess the same requisites and obserye the
same solemnities as a deed.
Approved in Williams v. Paine, 7 App. D. C. 137, power of attorney by
married woman and her husband executed and acknowledged according ix>
laws of District of Columbia enables attorney to make valid conveyance of
land within district; Williams v. Paine, 169 U. S. 66, 42 L. Ed. 668, 18 Sup.
Ct. 283, holding power properly executed; Council v. Galligher, 36 Neb.
762, 56 N. W. 233, holding description in power sufficient; Gage v. Gage,
30 N. H. 424, holding power invalid ; as also in G^e v. Bolton, 17 Wis. 612.
Validity of deed under power of attorney. Note, 81 Am. Dec 776.
Requisites of power of attorney to execute deed under seal. Note,
8 E. B. 0. 629, 680.
Parol exchange of lands a3 affected by statute of frauds. Note, Ann.
Gas. 1912A, 808.
6 Wheat. 580^83, 6 I.. Ed. 336^ PBESTOITS HEIBS ▼. BOWMAB.
Courses and distances yield to natural and ascertained objects, but where
these are wanting, courses or distances yield according io circumstances.
Approved in Davis v. Commonwealth Land etc. Co., 141 Fed. 762, 763,
764, 766, 766, 772, 774, determining boundaries where certain comers lost;
Davis V. Commonwealth Land etc. Co., 141 Fed. 729, construing State
patent; Watkins v. King, 118 Fed. 637, holding error to instruct jury
to disregard calls in survey for natural objects because they are not
on courses at proper distances, when they exist and can be identified ; May
V. Wolf Valley Coal Co., 167 Ky. 628, 629, 180 S. W. 783, surveyor of patent
making error in course of fifth line, distance of sixth line controlled over
course of fifth; Hall v. Caplis, 109 La. 484, 33 South. 671, holding in re-
establishing section line, surveyor's marks within township are safer than
marks of adjoining township; Doe v. Mobile, 9 How. 469, 18 L. Ed. 219,
holding distance must yield to the other boundary line; Higuera v. United
States, 6 Wall. 836, 18 L. Ed. 471, holding arroyo, etc., controlling; County
of St. Clair v. Lovingston, 23 Wall. 62, 23 L. Ed. 62, 16 Am. Bep. 624, hold-
ing birch tree controlling; Koons v. Brysons, 69 Fed. 300, 26 U. S. App.
368, holding courses or distances must yield to a certain ascertained tree;
Garrard v. Mines, 82 Fed. 586, holding a certain post controlled ; Belden v.
Seymour, 8 Conn. 26, Gaveney v. Hinton, 2 G. Greene, 349, and Campbell
v. Clark, 8 Mo. 558, holding fixed monuments will control courses and dis-
tances; Cleveland v. Smith, 2 Story, 291, Fed. Cas. 2874, where birch tree
controlled ; Higley v. Bidwell, 9 Conn. 462, holding white oak tree controll-
ing; Benedict v. Gaylord, 11 Conn. 336, 29 Am. Dec. 801, holding courses
and distances being of more certainty, controlled; Riley v. Griffin, 16 Ga.
r
6 Wheat. 680-583 NOTES ON U. S. REPORTS. 1132
149, 60 Ajn. Dec. 730, holding marked trees controlling; Evans v. Temple,
35 Mo. 498, White v. Gray, 9 N. H. 131, holding metes and bounds will
control the call for quantity; Rix v. Johnson, 5 N. H. 524, 22 Ajn. Dec. 474,
declaring a river the boundary ; Jackson v. Camp, 1 Cow. 612, holding river,
etc., controlling; likewise in Jackson v. Moore, 6 Cow. 717; Jackson v. Wen-
dell, 5 Wend. 147, holding courses and distances must be respected as far
as possible; Lewis v. Lewis, 4 Or. 180, holding measurements must yield
to the ''stake"; Hunter v. Hume, 88 Va. 30, 13 S. E. 307, holding quantity
must yield to description by boundaries; Wells v. Compton, 3 Rob. (La.)
188, arguendo; Ruffner v. Hill, 31 W. Va. 436, 7 S. E. 18, allowing courses
to control in part, and distances in part.
Distinguished in Obert v. Board of Commissioners, 122 Minn. 22, 141
N. W. 810, inaccuracies in course and distance not fatal where highway may
be located by monuments; Doe v. CuUum, 4 Ala. 581, holding whether a
monument referred to in a conveyance is identical with that found on the
ground is a question for the jury; Bowman v. Farmer, 6 N. H. 403, where
the brook was not designated with sufficient certainty to control.
Parol evidence to explain false descriptions and surplusages in convey-
ance. Note, 40 Am. Dec. 110.
General rules for the location of boundaries. Note, 129 Am. St. Bep.
1010.
Federal courts follow State courts' constmction of State law where not
unreasonable or founded In clear mistake.
Approved in Davis v. Commonwealth Land etc. Co., 141 Fed. 743, deter-
mining location of boundaries; Davis v. Commonwealth Land etc. Co., 141
Fed. 716, applying rule in action to quiet titl6 to land under State patent ;
Bramblet v. Davis, 141 Fed. 784, arguendo.
Distinguished in Burgess v. Seligraan, 107 U. S. 34, 27 L. Ed. 365, 2 Sup.
Ct. 22,' collecting authorities and refusing to follow State construction of
State statute where decision was rendered subsequently to and contrary to
Circuit Court construction.
Questions of State law as to which State court decisions must be fol-
lowed in actions originating in, or removed to, Federal courts. Note,
40 L. B. A. 417.
In case of doubt claim of party in possession ought to be maintained.
Approved in Dickson v. St. Louis etc. Ry. Co., 168 Mo. 97, 67 S. W. 644,
holding plaintiff could not recover for defection of railroad from way
granted when it appeared that deed was made after route was surveyed
and plaintiff had acquiesced for three years ; Davies v. Wickstrom, 56 Wash.
158, 184 Am. St. Rep. 1100, 105 Pac. 456, where location of land rendered
doubtful by inconsistent description, parties' construction of deed by locat-
ing line soon after its execution determines rights; McKinney v. Daniel,
90 Va. 704, 19 S. E. 881, and Bradley v. Ewart, 18 W. Va. 606, holding
plaintiff must recover on the strength of his own title, not on the weakness
of the defendant's.
J
I
4
U33 GOSZLER ▼. GEORGETOWN. 6 Wheat. 593-598
6 Wbeat 503^08, 5 L. Ed. 339, GOSZLEB ▼. OEOBOBTOWK.
Corporation caa make only sncli 6ontracti as are allowed by its diaiter.
Approved in Dow v. Northern Railroad, 67 N. H. 47, 36 Atl. 534, holding
leasing by a railroad corporation of its road is invalid against dissenting
stockholders; dissenting opinion in Southern etc. Co. v. Lanier, 5 Fla. 171,
majority holding where charter authorized sale of stock for cash to be
invested in b»nds and mortgages, that a sale for bond and mortgage could
not be avoided by purchaser; Welland Canal Co. v. Hathaway, 8 Wend.
484, 24 Ajn. Pdc. 55, holding one entering into a contract with a corporation
is not estopped from denying it to be a body corporate ; Dow v. Northern
R. B. Co., 36 Atl. 534, holding where 'corporation, chartered to operate a
railroad, leased it, this lease is invalid against dissenting stockholders.
Power to grade streets given to Georgetown by Maryland act of 1797 is
continuing power, and corporation may alter grade.
Approved in Mead v. Portland, 200 U. S. 164, 50 L. Ed. 420, 26 Sup. Ct.
171, applying ride to right of successor to bridge company to change street
grade; Snoffer v. C. R. & M. City Ry. Co., 118 Iowa, 307, 92 N. W. 86, hold-
ing ordinance repealing ordinance passed six years before providing for
the removal of a street railway track from the side to the center of the
street was valid; District of Columbia v. Metropolitan R. R. Co., 8 App.
D. C. 356, it is within power of. board of works in District of Columbia to
change character of pavement of city streets, and street railway must con-
form to order making such change; District of Columbia v. Washington
etc. R. Co., 1 Mackey (D. C), 375, action by District of Columbia to recover
from street railway for paving of streets not barred by statute of limita-
tions since power of municipality to pave and repair streets is continuing
power; Murray v. Gault, 179 Ind. 668, 101 N. E. 636, statute authorizing
assessments for construction of drain does not expressly provide for further
assessments, but power is continuing one; Barnes v. Parsons, 77 Kan. 314,
94 Pac. 152, power given to cities to grade streets and pay therefor by
general tax is continuing one, and grade once established may be changed
subsequently; Wood v. Duke Land & Improvement Co., 165 N. C. 370, 81
S. E. 423, power of municipality to grade street is continuing power, and
abutting owner cannot recover for damage to property for change of grade ;
Grant v. Hyde Park, 67 Ohio St. 175, 65 N. E. 894, holding that during trial
of condemnation suit counsel of the municipality has no power to change
resolution unless for purpose of appropriating more than demanded; Har-
risonburg V. Roller, 97 Va. 584, 34 S. E. p24, holding fact that town was
enjoined from grading and raising certain streets will not estop it from
raising sidewalks on other streets at later time; State v. Milwaukee Elec-
tric Ry. etc. Co., 157 Wis. 125, 147 N. W. 234, municipality, under ordinance,
requiring street railway to keep roadbed in good repair, may order repave-
ment with material to correspond with remainder of street ; State v. Wilson,
^21 Wis. 525, 99 N. W. 336, applying rule where city charter imposed on
board of education duty to establish text-books; East Hartford v. Hartford
B. Co., 10 How. 535, IS L. Ed. 528, holding act discontinuing a ferry con*
6 Wheat. 693-598 NOTES ON U. S. REPORTS. U34
stitutional ; Wabash R. R. Co. v. Defiance, 167 U. S. 98, 42 L. Ed. 92, 17
Sup. Ct. 752, holding common council could change grade of streets ; Charles
River Bridge v. Warren Bridge, 11 Pet. 569, 9 L. Ed. 832, holding valid a
grant of a second franchise, rendering first valueless ; dissenting opinion in
Baltimore T. etc. Co. v. Baltimore, 64 Fed. 163, majority holding ordinance
giving leave to construct tracks on certain streets constituted a contract
and was irrepealable; Winter v. Montgomery, 83 Ala. 594, 6 South. 238,
holding municipal authorities can tear down and remove obstructions on
sidewalks built under license of former council without giving compensa-
tion; Shaw V. Crocker, 42 Cal. 438, and Quincy^v. Jones, 76 111. 243, 20 Am.
Bep. 250, holding city has right to rdise the grade of a street without being
responsible for damages, if contractor does the work with proper skill;
Reardon v. San Francisco, 66 Cal. 500, 56 Am. Rep. Ill, 6 Pac. 321, hold-
ing municipality liable ,for such special consequential damage above the
common injury to the other abutters on the street; Fellowes v. New Haven,
44 Conn. 251, 26 Ajn. Rep. 450, dismissing injunction to restrain city from
working on street ;• Markham v. Atlanta, 23 Ga. 406, holding remedy for
injury by f^grading of street is not by injunction; Wright v. Nagle, 48 Ga.
391, holding inferior County Court could not grant exclusive right to build
a bridge; Bloomington v. Pollock, 141 HI. 350, 31 N. E. 147, holding ordi-
nances fixing grade of streets are not in the nature of contracts; Macy ▼.
Indianapolis, 17 Ind. 269, holding consequential damage, resulting from
change of grade of street, cannot be recovered from city ; Kokomo v. Mahan,
100 Ind. 244, allowing city to collect assessment for a subsequent improve-
ment of a street; Welch v. Bowen, 103 Ind. 257, 2 N. E. 725, holding power
to regulate the running at large of animals, not exhausted by being exer-
cised once; Commissioners v. FuUen, 111 Ind. 413, 12 N. E. 299, holding
commissioners can levy an additional assessment to pay for road, if neces-
sary ; Creal v. Keokuk, 4 G. Greene, 53, and Church v. Wyandotte, 31 Kan.
724, 3 Pac. 529, holding city not liable for prudent exercise of the power
to change grade of street; Reynolds v. Shreveport, 13 La. Ann. 428, hold-
ing presumption is that a municipality executed a lawful power with pro-
priety and good faith; Binney's Case, 2 Bland Ch. 128, holding power of
condemnation given to company, not being a continuing one, was exhausted
by being once exercised; Peddicord v. Railroad Co., 34 Md. 474, 483, hold-
ing railroad company not liable for change in grade of road; Mayor v.
Willison, 50 Md. 148, SS Am. Rep. SOB, holding city not liable for injuries
caused by obstructions to mill-race by acts done to improve streets; Green
V. Railway Co., 78 Md. 302, 44 Am. St. Rep. 292, 28 Atl. 628, Pontiac v.
Carter, 32 Mich. 167, and Hoffman v. St. Louis, 15 Mo. 654, holding estab-
lished grade could be changed; St. Louis v. Gumo, 12 Mo. 424, holding
corporation not liable for damages consequential upon the grading and
paving of a street; Thurston v. St. Joseph, 51 Mo. 514, 11 Am. Rep. 466,
overruling St. Louis v. Gurno, 12 Mo. 424, and holding city liable for dam-
ages arising from negligent construction of sewer; dissenting opinion in*
Rychlicki v. St. Louis, 98 Mo. 508, 4 L. R. A. 597, 11 S. W. 1004, majority
denying city's right to discharge accumulated water in a body upon ad-
\
1335. GOSZLER v. GEORGETOWN. 6 Wheat. 593-698
jacent lands; Radcliff v. Mayor, 4 N. Y. 204, 58 Am. Dec. 363, holding
municipality not liable for change of grade of street not negligently done ;
Crawford v. Delaware, 7 Ohio St. 465, holding if erections are made on a
lot in accordance with an established grade, city is liable for injury caused
by change of grade; Gas etc. Co. v. Columbus, 50 Ohio St. 71, 40 Amu St.
Rep. 652, 19 L. R. A. 513, 33 N. E. 294, municipality not liable to gas com-
pany for damages for injury caused by change of grade ; dissenting opinion
in Parke v. Seattle, 5 Wash. St. 20, 34 Am. St. Rep. 848, 20 L. R. A. 74,
32 Pac. 86, municipality held liable for damages to abutting lands in grad-
ing street; dissenting opinion in Piqua Branch etc. v. Knoup, 16 How. 403,
14 L. Ed. 991, arguendo.
Distinguished in City of Owensboro v. Hope, 128 Ky. 529, 15 L. R. A.
(N. S.) 996, 108 S. W. 874, city changing grade once established is liable
to adjacent property owners for injuries under Constitution.
City's liability for damages occasioned in execution of governmental or
sovereign powersi Note, 66 Am. Dec. 438.
Liability of municipal corporation for injury consequent on changing
grade of street. Note, 26 Am. Rep. 457.
Injury to abutter by vacating street, changing grade, etc. Note, 14
L. R. A. 371.
Mtmlclpal corporation cannot abridge its future legislative power.
Approved in Illinois etc. Co. v. St. Louis, 2 Dill. 89, Fed. Cas. 7007,
holding ordinance giving persons right to occupy a wharf for fifty years
void; State v. Graves, 19 Md. 354, 373, 81 Am. Dec. 646, holding city coun-
cil could not pass an irrevocable ordinance; Lake etc. Ry. v. Mayor, 77 Md.
375, 20 L. R. A. 132, 26 Atl. 514, ordinance authorizing laying of double
tracks Aay be repealed and company restricted to one track ; State v.
Murphy, 134 Mo. $75, 56 Am. St. Rep. 531, holding St. Louis has no power
to grant privilege of constructing electrical subways for private gain of
its grantee; State v. Hayes, 61 N. H. 332, holding provision that the sense
of the voters shall be taken on a law, and if thejr decision is favorable,
it shall become a law, was a delegation of legislative power, and void;
Milhau V. Sharp, 27 N. Y. 622, 84 Am. Dec. 318, holding municipal authori-
ties could not give a franchise for an indefinite period to operate a rail-
road in the public streets; Johnson v. Philadelphia, 60 Pa. St. 452, holding
a bond given to comply with existing regulations cannot be construed to
be binding engagement on part of the city to make no other regulations;
Burroughs v, Peyton, 16 Gratt. 489, holding Congress could not enter into
a contract to exempt from subsequent calls to military service all those
providing substitutes ; Roanoke G. Co. v. Roanoke, 88 Va. 813, 814, 14 S. E.
666, 667, holding power to grade streets cannot be delegated by a munici-
pality; Selma v. Muller, 46 Ala. 414, to point that a corporation can enter
into a contract.
Distinguished in Armstrong v. St. Louis, 3 Mo. App, 158, holding a city
may be enjoined from establishing a grade, where it would not be benefi-
cial to the public and would render the street impassable; Goodall v. Mil-
6 Wheat. 698-605 NOTES ON U. S. REPORTS, U36
wai^kee, 5 Wis. 50^ holding city liable for changing grade of street, when
ordinance had been passed declaring grade would not be changed without
compensating owners.
Authority of corporation to restrict exercise of its powers over land
taken by eminent domain proceedings. Note, 22 E. B. 0. 186.
On implied power to repeal municipal ordinance. Note, Ann. Oas.
1913D, 769.
Miscellaneous. Cited in Bauman ▼. Ross, 167 U. S. 568, 587, 42 L. Ed.
280, 287, 17 Sup. Ct 974, 981, as an instance where the act of 1809 had
been brought into court without a doubt of its constitutionality being
expressed; In re Brinkman, 7 N. B. R. 426, 4 Fed. Cas. 146, apparently
not in point.
6 Wheat. 598-605, 5 L. Ed. 840, McCLUNa ▼. SILLIMAK.
State courts have no authority to issue a wilt of mandamus to an officer
of the United States.
Approved in In re Blake, 175 U. S. 119, 44 L. Ed. 96, 20 Sup. Ct. 44,
holding writ of error and not mandamus is proper remedy when State court
misconstrues mandate of United States Supreme Court; McCuUough v.
Hicks, 63 S. C. 545, 41 S. E. 762, holding State court cannot enjoin man-
damus issued by United States Circuit Court ; dissenting opinion in Ex parte
Crane, 5 Pet. 206, 207, 8 L. Ed. 98, 99, 100, majority holding Supreme Court
can issue writ of mandamus to judge of Circuit Court, commanding him to.
sign a bill of exceptions; dissenting opinion in Kendall v. United States,
12 Pet. 633, 646, 647, 649, 652, 9 L. Ed. 1224. 1229, 1230, 1231, 1232, 13 Pet.
608, 10 L. Ed. 317, majority holding Circuit Court of District of Columbia
could issue a writ of mandamus to the postmaster-general, compelHng him
to do a ministerial act; Territory v. Lockwood, 3 Wall. 239, 18 L. £d. 49,
holding proceeding in the nature of quo warranto to test the right of a
judge of the Supreme Court of a territory to exercise the power must be
in the name of the United States, and not in the name of the territory;
Rigg V. Johnson County, 6 Wall. 189, 198, 18 L. Ed. 774, 777, holding writ
of mandamus from Circuit Court will lie against the county officers to levy
a tax; Bath Co. y. Amy, 13 Wall. 249, 20 L. Ed. 541, holding mandamus
does not lie from Circuit Court in favor of a holder of county bonds to
make the county levy a tax; Rosenbaumv. Bauer, 120 U. S. 454, 30 L. Bd.
745, 7 Sup. Ct. 634, holding Circuit Court cannot acquire jurisdiction by
removal from a State court of original proceedings to obtain a mandamus ;
Ex parte Van Orden, 3 Blatchf. 169, Fed. Cas. 16,870, holding District
Court has no power to issue a writ of certiorari to court commissioner to
review proceedings before him; Van Antwerp v. Hulburd, 7 Blatchf. 433,
Fed. Cas. 16,826, holding this court has no jurisdiction of a suit in equity
to control the administration of the duties of the controller of currency of
the United States; United States v. Pearson, 24 Blatchf. 454, 32 Fed. 310,
holding District Court cannot, by mandamus, compel a postmaster to trans-
mit through mails a certain publication as second-class matter; The Ceics-
/
\
U37 McCLUNG v. SILLIMAN. 6 Wheat. 598-605
tine, 1 Biss. 12, Fed. Cas. 2541, holding when jurisdiction of State court
has attached, creditors cannot in Federal court obtain any control of the
property; United States v. Plumer, 3 Cliff. 61, Fed. Ca^ 16,056, holding
Circuit Court has no authority to re-examine by writ of error rulings of
District Court in criminal cases ; Wheeling v. Baltimore, 1 Hughes, 94, Fed.
Cas. 17,502, and Smith v. Jackson, 1 Paine, 456, Fed. Cas. 13,064, holding
power of Circuit Courts to issue mandamus is confined to cases in which
it is necessary to the exercise of their jurisdiction; Ladd v. Tudor, 3 Wood.*
& M. 332, Fed. Cas. 7975, query, whether mandamus lies from Federal
courts to judges of State courts; Litchfield v. The Register, Woolw. 312,
Fed. Cas. 8388, refusing to interfere by injunction with executive officers
in tite exercise of discretionary power; In re Forsyth, 78 Fed. 301, holding
District Court has no power to issue mandamus in an original proceeding;
United States v. Judges, 85 Fed. 179, 56 U. S. App. 35, 36, collecting
authorities and holding mandamus may not be invoked to direct a court
or officer to reverse a judicial decision ; Ex parte Hill (In re Willis v. Con-
federate States), 38 Ala. 438, holding State courts cannot, on writ of
habeas corpus, discharge enrolled conscript from custody of Confederate
officer; Ex parte Hill (In re Armistead v. Confederate States), 38 Ala. 461,
462, 464, 471, holding State court has jurisdiction to determine, whether
placing a substitute in his stead exempted petitioner from liability to ser-
vice; dissenting opinion of same case, p. 485; State v. Curtis, 35 Conn. 383,
95 Am. Dec. 268, holding an information in the nature of quo warranto
will not lie in State court to try right to the office of director of a national
bank; dissenting opinion in Swift v. Richardson, 7 Houst. (Del.) 365, 32
Atl. 148, majority holding that a stockholder of a private corporation may
procure an inspection of the books by mandamus ;. Commissioner v. Smith,
5 Tex. 478, and Meyer v. Carolan, 9 Tex. 253, declaring mandamus will not
issue to an officer to perform a discretionary duty; Bledsoe v. Railroad Co.,
40 Tex. 556, holding court had no power to compel an officer of the govern-
ment to perform an official duty ; dissenting opinion in Kuechler v. Wright,
40 Tex. 665, majority holding mandamus will lie to compel commissioner
of land office to perform a ministerial duty; State v. Cunningham, 81 Wis.
503, 15 L. B. A. 574, 51 N. W. 736, same as to ministerial acts of Secretary
of State; Decatur v. Paulding, 14 Pet. 601, 606, 10 L. Ed. 610, 618, In re
Brinkman, 7 K. B. R. 426, 4 Fed. Cas. 147, and Baker v. Biddle, Bald. 403,
406, Fed. Cas. 764, arguendo.
Distinguished in McDaid v. Territory, 1 Okl: 97, 98, 30 Pac. 440, uphold-
ing jurisdiction to mandamus town-site trustees to issue deed to contestant
they have decided is -entitled to it ; Kendall v. United States, 12 Pet. 615,
617, 624, 9 L. Ed. 1217, 1218, 1221, holding Circuit Court of District of
Columbia could issue a writ of mandamus to the postmaster-general, com-
pelling him to do a ministerial act; Heine v. Commissioners, 19 Wall. 660,
22 L» Ed. 226, holding mandamus may be issued after judgment to compel
levy of tax to pay bonds; United States v. Schurz, 102 U. S. 393', 26 L. Ed.
170, holding Suprenie Court of District of Columbia can issue mandamus
as an original process, where at common law the petitioner would be entitled
I— 7a
6 Wheat. 698-606 NOTES ON U. S. REPORTS. U38
to it ; dissenting opinion in Louisiana v. Jumel, 107 U. S. 762, 763, 27 L. Ed.
466, 2 Sup. Ct. 170, 171, maintaining under act of 1875 that Circuit Court
can by mandamus compel the performance of a purely ministerial act;
United States v. Kendall, 6 Cr. C. C. 172, 243,>245, 246, 247, 250, 255, Fed.
Cas. 15,517, holding Circuit Court of District of Columbia could issue a writ
of mandamus to the postmaster-general, compelling him to do a ministerial
act.
Who is o£Kc«r of United States so as to be free from interference by
State court. Note, Ann. Oas. 1914B, 106.
The question before the appellate coiirt Is whether the Judgment was cor-
rect, not the ground on which it was given.
Approved .in Lyle v. Cass Circuit Judge, 167 Mich. 39, 121 N. W. 308,
mandamus will not lie to review denial of motion for change of venue;
dissenting opinion in Ex parte Crane, 5 Pet. 204, 8 L. Ed. 98, majority hold-
ing writ of mandamus can be issued by Supreme Court to circuit judge;
Davis V. Packard, 6 Pet. 48, 8 L. Ed. 815, holding Supreme Court can notice
nothing unless it appears on the record of lower court; Ladd v. Tudor, 3
Wood. & M. 328, 332, Fed. Cas. 7975, holding action may be removed to
Circuit Court though the diverse citizenship does not appear on the face
of the writ; Polhemus v. Bank, 27 Mich. 50, holding that the real subject
of complaint is the final result and not the reason which led to it; State v.
Bowen, 8 S. C. 408, holding court is not restricted to the grpunds urged
by the defendants, but may give weight to any insuperable objection to its
jurisdiction; Shrewsbury v. Miller, 10 W. Va. 122, holding the question in
the appellate court is whether the judgment to be reviewed is correct ; Poole
V. Nixon, 9 Pet. 771, 9 L. Ed. 305, 19 Fed. Cas. 994, arguendo.
Legislation is necessary to vest In the inferior Federal courts their Judicial
power. V
Approved in Ex parte Massachusetts, 197 U. S. 488, 49 L. Ed. 848,
Supreme Court cannot grant extraordinary writs in cases in which it has
neither original nor appellate jurisdiction ; Bumham v. Fields, 157 Fed. 248,
Circuit Court of United States has no jurisdiction to issue mandamus
to county clerk in Oregon; ifystic Milling Co. v. Chicago etc. Ry. Co., 132
Fed. 292, denying mandamus in Circuit Court over action which is not re-
movable ; Barber Asphalt etc. Co. v. Morris, 132 Fed. 953, 67 L. R. A. 761,
66 C. C. A. 55, granting mandamus to circuit judge to vacate order staying
proceedings in Circuit Court till determination of proceedings in State court ;
dissenting opinion in Ex parte Crane, 5 Pet. 202, 8 L. Ed. 97, majority hold-
ing Supreme Court could issue writ of mandamus to circuit judge; In the
Matter of Barry, 136 U. S. 609, 610, 84' L. Ed. 508, 42 Fed. 122, Fed. Cas.
1059, refusing to grant writ of habeas corpus, in order to determine as be-
tween parents living apart the right to the custody of a child ; In re Heath,
144 U. S. 95, 36 L. Ed. 360, 12 Sup. Ct. 616, holding Supreme Court has no
jurisdiction over judgments of Supreme Court of DistHct of Columbia
in criminal cases.
1139 MUTUAL ASSURANCE SOCIETY v. FAXON. 6 Wheat. 606-608
Distinguished in United States v. Virginia-Carolina Chemical Co., 163
Fed. 67, Circuit Court has jurisdiction to issue writ of mandamus to bring
before it corporation defendants, citizens of another State.
Miscellaneous. Cited generally in Davis v. Seneca, Gilp. 39, Fed. Cas.
3651; Boatner v. Ventress, 8 Mart. (N. S.) 651, 20 Am. Dec. 269.
6 Wheat. 606-608, 6 U Ed. 342, MUTUAL ASSURANCE SOCIETY ▼. FAXON.
Liability of members of mutual fire insurance companies. NotOi 32
L. R. A. 483, 504.
/
y
\
NOTES
ONTHB
UNITED STATES REPORTS.
VII WHEATON.
7 Wheat. 1-7, 6 !■. Ed. 381, MILIiEB ▼. KEBB.
Warrant and survey do not, in themselves, constltnte legal title; until
grant, person acquiring equity holds right subject to examination.
Approved in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 12,
holding public lands are 'Vacant and open to settlement" and subject to
selection in lieu of relinquished forest reserve land covered by patent,
undet Act June 4, 1897 (30 Stat. 36), when unoccupied by others, free from
record claims, and nonmineral; Haumesser v. Chehalis County, 76 Wash.
572, 136 Pac. 1142, holding land department could contest regularity and
sufficiency of proofs of residence, etc., after issuance of final certificate to
homestead applicant; Michigan Co. v. Rust, 168 U« S. 593, 42 L. Ed. 592,
18 Sup. Ct. 209, affirming right of land department to determine validity
of rights claimed in land against government until title passes; Wynn v.
Garland, 16 Ark. 460, land department may annul a pre-emption right for
cause any time before issuance of patent, holding further as to right of
chancery to go back of patent to determine rights.
Equity arising from entry made on warrant issued by intake cannot be
sustained against patent issued on Junior entry.
Cited in Parkison v. Bracken, 1 Pinn. 181, 39 Am. Dec. 298, holding,
in action at law, in case of conflicting patents, the first patent is con-
clusive; Wallace v. Saunders, 7 Ohio, 177, arguendo; Ware v. Brush, 3
McLean, 535, Fed. Cas. 17,171, and same case on appeal, 15 Pet. 106, 10
L. Ed. 677, as to when courts will go back of patent to examine equities;
to same effect, Arnold v. Grimes, 1 Iowa, 13 ; Lindsey v. Miller, 6 Pet. 676,
8 L. Ed. 542, arguendo; McClung v. Hughes, 5 Rand. 477.
Modified in Parker v. Wallace, 3 Ohio, 494, holding senior entry upon
resolution warrant, surveyed and patented conformable to laws of Con-
gress,^ may be aided in equity against an elder patent on a junior entry.
Distinguished in Hoofnagle v. Anderson, 7 Wheat. 218, 5 L. Ed. 488,
where court was asked to set aside a complete legal title, founded on a
warrant issued by mistake, in favor of an entry made after consummation
(1141)
7 Wheat. 7-13 NOTES ON U. S. REPORTS. 1142
of that title; Thomas v. White, 2 Ohio St. 549, holding patent issued on
warrant and survey, unless such entry be absolutely void, transfers title,
which will not be set aside f o/r irregularities in making entry.
Miscellaneous. Cited in Galloway v. Pinley, 12 Pet. 299, 9 L. Ed. 1092,
^ as authority for holding claims ioT land for services in the "Vii^nia State
line" cannot be satisfied out of lands in Ohio military district; Brown v.
Clements, 3 How. 665, 11 L. Ed. 774, and in Keyser v. Sutherland, 59 Mich.
460, 26 N. W. 867, as authority for rule that acts of ministerial officer
beyond his power or contrary to law are void.
«
7 Wheat. 7-13, 5 L. Ed. 382, NEWSOM ▼. PBYOB.
Most material and certain calls control those less material and certain,
and call for natural object controls botli course and distance.
Approved in Northern Pac. Ry. Co. v. United States, 191 Fed. 955, 112
C. C. A. 359, Peoria Gas & Electric Co. v. Dunbar, 234 JU. 503, 85 N. E.
230, and Kleven v. Gunderson, 95 Minn. 254, 104 N. W. 7, all following rule;
Kean v. Calumet Canal Co., 190 U. S. 460, 47 L. Ed. 1137, 23 Sup. Ct. 652,
holding under act of September 28, 1850 (9 Stats, at Large, 520), letters
patent from the United States to Indiana convey to extent of full sub-
divisions, the lands under non-navigable water on which such fractional
sections border, beyond which the survey did not extend; Watkins v. King,
118 Fed. 536, 537, holding error to instruct jury to ignore calls in survey
and to be governed by courses and distances because objects are not on
y courses, but which exist; Belding v. Hebard, 103 Fed. 541, holding under
rule that most material and certain calls must control those that are less
certain and material marked trees must give way to natural monuments in
fixing the boundary between Tennessee and North Carolina; Chapman etc.
Lumber Co. v. Board of Directors, 100 Ark. 105, 139 S. W. 629, holding:
quantity called for was controlled by boundary lines fixed by surrey; Ayers
V. Huddleston, 30 Ind. App. 249, 66 N. E. 62, holding in an action in which
the location of a boundary line was in issue, where each lot had been sold
by metes and bounds, the jury was authorized to consider the evidence
which fixed the boundaries by the natural landimarks; Smith v. Furbish,
68 N. H. 135, 44 Atl. 403, holding certain reservation in deed sufficiently
definite ; Finberg v. Gilbert, 104 Tex. 547, 141 S. W. 86, sustaining grant
of unsurveyed land where by g^iving effect to calls which were certain with
other matter in grant land could be identified; Brown v. Buger, 21 How.
321, 16 L. Ed. 130, holding where survey and patent call for boundary to
run down to and along a river, the river was intended as boundary, and
courses must be disregarded; Higueras v. United States, 5 Wall. 836,
18 L. Ed.' 471, where natural objects were held to control ; County of St.
Claire v. Lovingston, 23 Wall. 62, 23 L. Ed. 62, where survey b^ns at
stake on bank of river and is carried to a point in river, the river running
along the general course of line, the tract surveyed is bounded by the
river; Cleveland v. Smith, 2 Story, 290, Fed. Cas. 2874, where description
calls for a certain tree standing on a certain line, in case tree is not on line,
tree will be considered as boundary; Brown v. Huger, 4 Fed. Cas. 396,
where magnetic line conflicts with line running from permanent sensible
1143 NEWSOM v." PRYOR. 7 Wheat. 7-13
*
objects, it must be abandoned; Grarrard v. Mines, 82 Fed. 586, reaffirming
rule; GaVeny v. Hinton, 2 G. Greene, 349, where grantor reserves a house
which was supposed to be on a certain strip on west side of quarter-section
of land sold, but which proved to be east of east line of strip, grantor was
held entitled to house; Carmichael v. Foley, 1 How. (Miss.) 592, where the
call for quantity appeared more certain and material than did call for
boundaries; Rix v. Johnson, 5 N. H. 524, 22 Am. Dec. 474, bounding land
as running to stake at river, thence to stake by river, makes river a bound-
ary; Cobum V. Coxeter, 51 N. H. 164, and Erwin v. Moore; 6 Cow. 717,
quantity being the least certain part of a description must yield to bound-
aries or other more certain description; Jackson v. Wendell, 5 Wend. 147,
holding where place of beginning can be ascertained, and two first courses can
be run according to description, whole patent will not be deranged because
subsequent lines and monuments conflict; Hathaway v. Power, 6 Hill, 457,
where description by lot number was held to prevail over that part of
description stating number of acres in tract ; Whiteside v. Singleton, Meigs,
218, holding where grant calls for certain number of poles to "'stake, cross-
ing river,'' line must cross river, though distance terminates before
reaching it ; Hubert v. Bartlett, 9 Tex. 104, and George v. Thomas, 16 Tex.
87, 67 Am. Dec. 616, where boundary line was partially marked ; Stafford ▼.
King, 30 Tex. 270, 271, 94 Am. Dec. 307, 308, and Smith ▼. Chapman, 10
Gratt. 473, 474, arguendo ; Doe v. Hildreth, 2 Ind. 284, as to boundary line
where land bounds on watercourse; Kellogg v. Smith, 7 Cush. 383, as to
when line varying from true course but acquiesced in as true line' for num-
ber of years, will be considered true line; Jennings v. Brizeadine, 44 Mo.
335, and Hunter v. Hume, 88 Va. 30, 13 S. E. 307, as to admission of parol
evidence to explain description; Bowman v. Farmer, 8 N. H. 403, bat hold-
ing, where description calls for boundary line, beginning at mouth of creek
and running due west up said creek, the creek being very crooked does not
control magnetic line; Opdyke v. Stephens, 28 N. J. L. 86, but under facts,
there being no monuments, courses and distances were held to control;
Jackson v. Camp, 1 Cow. 612, and Barnard v. Good, 44 Tex. 641, arguendo ;
Boon V. Hunter, 62 Tex. 588, as to what descriptive calls will be considered
when it is shown no actual survey was ever made.
Modified in Miller v. Cullum, 4 Ala. 582, in case giving monuments eon-
trolling influence, absurd consequences would ensue, if courses furnish
more certain guide, they will be followed.
Distinguished in Security Land etc. Co. v. Bums, 193 U. S. 179, 48 L. Ed.
671, 24 Sup. Ct. 425, courses and distances as 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
was fraudulent and lake never within half mile of point indicated on
plat.
General rules for the location of boundaries. Note, 129 Am. St. Bep.
998, 1001, 1003, 1004.
Rules governing where description of land is inconsistent or uncer-
tain. Note, 80 Am. Dec. 735, 737.
Title to accretions. Note, 16 Am. Bep. 624.
7 Wheat. 13-22 NOTES ON U. S. REPORTS. 1144
Miscellaneous. Cited in Williamson v. Simpson, 16 Tex. 441, as to re-
luctance of courts to adopt a rule which would lead to uncertainties in
titles; Hull v. Fuller, 7 Vt. 106, as to duty of courts to correct manifest
mistakes in contracts; Oakley v. Hibbard, 1 Pinn. 681, not in point.
7 Wlieat. 13-2^ 5 L. Ed. 384, TAYLOE ▼. SANDIFOBD.
' Sum In gross, to be paid for nonperformance of agreement, Is penalty, and
not liquidated damages.
Approved in Sun Printing & Publishing Assn. ▼. Moore, 183 U. S. 662,
46 L. Ed. 378, 22 Sup. Ct. 248, holding parties to a charter-party may
stipulate value of vessel as liquidated damages in case of failure to return
vessel; General Electric Co. v. Westinghouse Electric Co., 151 Fed. 678,
holding provision for liquidated damages not substitute for remedy for
breach of contract ; Dieckerhoif ▼. United States, 136 Fed. 547, 69 C. C. A.
255, penalty of bond given under Rev. Stats. 2899, is not liquidated dam-
ages; East Moline Co. v. Weir Plow Co., 95 Fed. 256, holding where
contract contains large number of stipulations to be performed of different
degrees of importance, and damages for the breach of same may be readily
ascertainable while others are not, a single sum stipulated for breach and
applicable to each is a penalty; Moore v. Kline, 26 Colo. App. 337, 143 Pac.
264, holding such provision in contract to have building completed by cer-
tain date was for penalty; Gougar v. Buffalo Specialty Co., 26 Colo. App.
16, 141 Pac. 514, holding such provision in contract to refrain from manu-
facturing tires was penalty; Advance Amusement Co. v. Franke, 268 111.
582, 109 N. E. 472, holding provision for retention of deposit on lease as
final payment of rent was for penalty; American Credit Indemnity Co.
V. Ellis, 156 Ind. 221, 59 N. E. 682, holding action brought under Homer's
Rev. Stats. 1881, §§ 3863-3865 (Ind.), relating to publication of reporU
of Corporation, is action for damages and not for penalty; Mount Airy
Milling etc. Co. v. Runkles, 118 Md. 377, L. R. A. (N. S.) 1915E, 873, 84 Atl.
535, holding provision for "liquidated damages" to be penalty; Baltimore
Bridge Co. v. United Rys. etc. Co., 125 Md. 213, 93 Atl. 422, upholding
provision of contract for liquidated damages as such ; State v. Warner, 197
Mo. 659, 94 S. W. 964, game law of 1905, requiring fines to go to game pro-
tection fund violates constitutional provision that fines and penalties shall
go to county school fund; Manhattan Trust Co. v. Davis, 23 Mont. 273,
58 Pac. 720, holding under Comp. Laws, §§ 442-444 (Mont.), relating to
foreign corporations, it is not necessary for corporation to file report in
every county, where it does, business ; O 'Keef e v. Dyer, 20 Mont. 482, 52
Pac. 197, holding bond of one thousand dollars, given by defendant who
was about to apply for patent of mining claim, to avoid litigation, whereby
he agreed to quitclaim land belonging to plaintiff to him after patent
issued, is penalty and not liquidated damages; Haffke v. Coffin, 89 Neb.
138, 130 N. W. 1046, holding recital in bond to secure contract to exchange
realty for personalty that personalty was worth named sum did not estop
either party from proving actual value; Disosway v. Edwards, 134 N. C.
256, 46 S. E. 502, in action on bond conditioned for performance of agree-
ment not to engage in certain business, it is error to enter judgment for
1145 TAYLOE v. S ANDIFORD. 7 Wheat. 13-22
full amount of bond, on overruling demurrer, where there were no allega-
tions as to amount of actual damage; Kelley v. Seay, 3 Okl. 533, 41 Pac.
618, applying rule in action on bond containing penalty clause ; Yuen Suey v.
Fleshman, 65 Or. 612, 133 Pac. 805, holding deposit to secure lease to be
penalty ; Kilton v. Providence Tool Co., 22 R. I. 616, 48 Atl. 1042, holding
action commenced under chapter 288, section 8 (R. I.), to enforce liability
of stockholder is not an action to enforce penalty; McDaniels v. Gowey,
30 Wash. 423, 71 Pac. 16, holding bond of eight thousand dollars, given
with agreement that four thousand dollars mortgage and other encum-
brances would be satisfied within six months, is an indemnifying bond and
not one for liquidated damages ; Wilkes v. Bieme, 68 W. Va. 84, 31 L. B. A.
(N. S.) 937, 69 S. E. 367, holding such provision in contract to maintain
person for life was for x>enalty; Watts v. Camors, 115 U. S. 361, 29 L. Ed.
408, 6 Sup. Ct, 94, applying rule to agreement in charter-party ; White v. Ar-
leth, 1 Bond, 325, Fed. Cas. 17,536, holding it is optional with plaintiff either
to sue for penalty or for actual damage ; Beck v. Milling Co., 52 Fed. 703, 705,
10 U. S. App. 465, in determining right of party to rescind contract not
performed within time stipulated but substantially performed after short
delay; Hooper v. Savannah R. R. Co., 69 Ala. 535, when it is doubtful
whether sum stated was intended as liquidated damages, or as penaHy, it
will be construed as the latter; Nash v. Hermosilla, 9 Cal. 587, 70 Am. Dec.
677, where sum to be paid in case of breach of conditions in contract be-
tween landlord and tenant, was held penalty and not liquidated damages;
Smith v. Wedg^f^ood, 74 Me. 460, to agreement to pay certain sum in case
a drain was not completed within specified time; Higg^nson v. Weld, 14
Gray, 172, Kelley ▼. Seay, 3 Okl. 533, 41 Pac. 618, and Smith v. Brown, 164
Mass. 587, 42 N. E. 102, where parties stipulated sum should be consid-
ered as penalty; Davis v. Gillett, 52 N. H. 130, to agreement not to engage
in specified business within certain time and place; Whitfield v. Levy, 35
N. J. L. 155, to same effect ; Lansing v. Dodd, 45 N. J. L. 528, to condition
in agreement to convey land; Curry v. Larer, 7 Pa. St. 472, 49 Am. Dec.
488, to agreement in covenant to deliver coal by certain date; March v.
Allabough, 103 Pa. St. 340, and Smith v. Wainwright, 24 Vt. 104, to agree-
ment not to enter into business within specified limits; Huntington v.
Attrill, 146 U. S. 667, 36 L. Bd. 1127, 13 Sup. Ct. 227, New York law
making corporate officers signing false certificates of capital stock liable for
corporate debts, is not penal; dissenting opinion in Johnson v. Potomac
Assn., 13 Fed. Cas. 793; dissenting opinion in Johnson v. Clarke, 30 Fed.
Cas. 1097, Watts v. Sheppard, 2 Ala. 444; Williams v. Green, 14 Ark. 321,
ai^ucndo; Andrews v. Jones, 3 Blackf. 443, where the liability in an agree-
ment in mortgage, that whole sum should be due on failure to make cer-
tain payments was held not to be a penalty; Hamilton v. Overton, 6
Blackf. 207, 38 Am. Dec. 137, as to rule of interpretation when sum is desig-%
nated a penalty ; Foley v. McKeegan, 4 Iowa, 7, 8, 66 Am. Dec. 110, 112,
where it is said courts, in determining whether contract provides for
penalty or liquidated damages, will not always be guided by terms used
by parties, but will be governed by their intent, as shown by facts sur-
rounding case; Mclntire v. Cagley, 37 Iowa, 678, deciding as to nature of
7 Wheat. 13-22 NOTES ON U. S. REPORTS. U46
agreement in note to pay attorney's fees; Cheddick v. Marsh, 21 N. J. L.
467, as authbrity for holding, when it is donbtful whether sum was intended
as a penalty or liquidated damages, it will be considered a penalty;
Thoroiighgood v. Walker, 2 Jones (N. C), 22, holding, where sum was
stipulated for breach of agreement, and amount of damage caused by
breach was readily ascertainable, such sum will be considered a penalty.
Distinguished in United States y. Hatch, 1 Paine, 345, Fed. Gas. 15,325,
holding the sum, in a bond ^ven by master of ship for performance of
certain act, is intended as a forfeiture, and not as a penalty to cover
damages which may be assessed; Taylor v. Marcella, 1 Woods, 304, Fed.
Cas. 13,797, where there was part performance and acceptance under eon-
tract; Degraff v. Wickham, 89 Iowa, 727, 728, 67 N. W. 420, 421, where
contract provided for payment at certain rate per diem in case contract
should not be performed within specified time, there being no evidence
as to cost or rental value of house which was subject of contract; Geiger
V. Maryland, 41 Md. 15, where it was expressly stipulated that the sum
should be considered liquidated damages.
Whether liquidated damages or penalty. Note, 1 Am. Dec. 884*
Damages, when liquidated. Note, 30 Am. Bep. 29.
Damage provision in builcling contract as penalty or liquidated dam-
ages. Note, 34 L. B. A. (N. S.) 597, 600.
When stipulation in contract is for penalty and when for liquidated
damages. Note, 6 £. R. 0. 560, 561.
One owing under distinct contracts may apply paymenti to either, without
express direction at time.
Approved in City of Lincoln v. Lincoln St. R. Co., 67 Neb. 492, 93 N. W.
774, following rule ; Barrett v. Sipp, 50 Ind. App. 312, 98 N. E. 313, hold-
ing where neither debtor nor creditor made application of payment, court
would apply it, having regard to intention of debtor; Carson ▼. Cook
County Liquor Co., 37 Okl. 16, Ann. Oas. 1915B, 695, 130 Pac. 304, hold-
ing direction as to application made prior to making payment was binding;
Howland v. Rench, 7 Blaokf. 237, where application of payments by
creditor was shown from circumstances; Adams Co. v. Black, 62 Ind. 134,
when intention of payer can be gathered from circumstances, application
should be made in accordance with such intention ; Mitchell v. Dall, 2 Har.
& G. 173, where debtor designated by letter to what payment should be
applied; Lauten v. Rowan, 59 N. H. 217, where debtor's intention was
shown by surrounding circumstances; Roakes v. Bailey, 55 Vt. 543, hold-
ing where debtor, without knowledge of dissolution of firm, made pay-
ments supposing them to apply on partnership debt — ^the law will apply
them as he intended; The Pioneer, Deady, 80, Fed. Cas. 11,177, as to im-
X)lying appropriation; Randall v. Lettes, 12 Fla. 535, Hansen v. Rounsavell,
74 111. 241. Approved generally, Conduitt v. Ryan, 3 Ind. App. 9, 29
N. E. 163, holding further as to rule where appropriation is made by
neither party; Mitchell v. Dall, 4 Gill & J. 372, no inference will be
drawn as to debtor's intention from fact payment was made by surety;
1147 NOTES ON U. S. REPORTS. 7 Wheat. 23-34
Summers v. Loder, 12 N. J,.K 106, arguendo; White ▼. Trumbull, 15
N. J. L. 319, 29 Am. Dec. 690, arguendo ; Robinson v. Doolittle, 12 Vt. 249,
as an instance where debtor's intention was shown by surrounding cir-
cumstances.
Distinguished in Nichols ▼. Knowles, 3 McCrary, 478, 17 Fed. 494, where
payment was not voluntary but by compulsory process ; Stafford v. Walker,
12 Serg. & R. 196, where there was but one entire contract.
Application of payments. Note, 96 Am. St. Rep. 47.
Miscellaneous. Cited in Roller v. Murray, 71 W. Va. 164, Ann. Gas.
1914B, 1189, L. B. A. 1915F, 984, 76 S. E. 174, as illustration of use of
word ''penalty" in private contract; Page v. Patton, 5 Pet. 310, 8 L. Ed.
187,
7 Wlieat. 23-27, 5 L. Ed. 387, TAYLOB ▼. BC7EB8.
Owner of survey made in conformity with entry, and not interfering with
any other person's light, may abandon survey after it has been recorded.
- Cited in Gait v. Galloway, 4 Pet. 341, 7 L. Ed. 879, where warrant, under
laws applicable to Virginia military lands, was withdrawn after survey
thereunder had been made and recorded; HoUingsworth v. Holshousen,
17 Tex. 49, and Jackson v. McGavock, 5 Rand. 519, arguendo.
Distinguished in Jackson v. Clark, 1 PA. 637, 639, 7 L. Ed. 294,«295, facts
show no abandonment; Holt v. Hemphill, 3 Ohio, 236, where question
raised was whether warrant having been entered and surveyed could, after
withdrawal, be entered and surveyed elsewhere.
ProrLso of act of 1807, as to land warrants annulling locations made on
lands previously surveyed applies only to subsisting surveys.
Cited in Lindsey v. Miller, 6 Pet. 678, 8 L. Ed. 548, in discussion as to
object of act of 1807; McArthur v. Dun, 7 How. 269, 12 L. Ed. 696,
arguendo.
Distinguished in Miller v. Lindsay, 1 McLean, 34, Fed. Cas. 9580, where
survey was not supported by right of entry; Saunders v. NisWanger, 11
Ohio St. 302, 307, provisions of act do not extend to surveys made on in-
valid warrant. ^
7 Wheat. 27-34, 5 !■. Ed. 388, aSEEN ▼. WATKINB.
In action under writ of right, tenant may introduce evidence to show title
In third person for purpose of ^ disproving defendant's seisin.
Cited in Inglis v. Trustees, 3 Pet. 133, 172, 7 L. Ed. 629, 643, holding
in writ of right the tenant may, on the mise joined, set up a title out of
himself and in a third person; Rollins v. Clay, 33 Me. 140, applying rule
in an action of trespass; Barr v. Galloway, 1 McLean, 482, Fed. Cas.
"^ 1037, arguendo.
Writ of right Note, 50 Am. Dec. 174.
7 Wheat. 35-38 NOTES ON U. S. REPORTS. 1148
Demandant in order to maintain suit must show seisin either in fact or
In law.
Cited in Lyon v. Mottuse, 19 Ala. 465, holding count in pleadings which
does not allege such seisin is bad; Wood v. Mansell, 3 Blackf. 130, as to
whether grantee must show actual possession before he can maintain an
action of trespass.
Patent confers constmctiTe seisin.
Cited in Dawson v. Watkins, 2 Rob. (Va.) 268, holding further as to
right of tenant to introduce evidence to disprove such constructive seisin.
Wliere demandant proves actual seisin, tenant cannot prove superior out-
standing title.
Cited in Boiling v. Mayor, 3 Rand. 570, following rule.
Distinguished in Carter v. Ramey, 15 Gratt. 348, where seisin was con-
structive, holding uiider such circumstances tenant may disprove such
seisin by showing better title in another.
7 Wheat. S5-38, 5 K Ed. 390, PAOB v. BANE.
Under a count for money had and received, a Ull or note is prima fade
evidence against drawer or Indorser.
Approved in McAtee v. Shade, 185 Fed 447, 107 C. G. A. 512, holding
in action on note consideration for indorsement of note need not be set
forth; Green v. EQggin Mfg. Co«, 44 App. D. C. 190, holding in action
against indorser of note evidence was admissible under c(Nnmon coant
that. defendant waived presentment and notice; Hopkins v. Orr, 124 U. 8.
513, 81 L. Ed. 525, 8 Sup. Ct. 591, action of assumpsit on promissory note ;
Benjamin v. Tillman, 2 McLean, 214, Fed. Cas. 1304, acceptance is evi-
dence of money had and received by acceptor to use of drawer; Frazer v.
Carpenter, 2 McLean, 237, Fed. Cas. 5069, rule applied in action between
holder and acceptor of bill of exchange; Sandford v. Norton, 14 Vt. 232,
indorser in blank, not payee, may always show by parol the extent of his
liability; Bank v. Jackson, 9 Leigh, 231 235, and if it be shown that in-
dorser was mere accommodation indorser, recovery cannot be had on
money counts; Bank v. Moss, 6 How. 37, 12 L. Ed. 834, Brown v. Noyes,
2 Wood. & M. 78, Fed. Cas. 2023, Brown v. Tower, Minor, 372, and Spring-
field v. HicVox, 2 Gil. 248, arguendo ; Banking Co. v. Myer, 12 N. J. L. 148,
holding note is but rebuttable evidence of money had and received by maker
to use of holder, or of money paid by holder to use of maker; Johnson v.
Catlin, 27 Vt. 91, 62 Am. Dec. 624, as to right of cashier, who is payee
of note given for value, to maintain action in his own name upon money
counts; Austin v. Burlington, 34 Vt. 512.
Distinguished in Smith v. Frye, 14 Me. 464, where guaranty was written
over name of payee of note, indorsed m blank, without his consent;
Cayuga Bank v. Warden, 6 N. Y. 30, where statute makes indorsement
evidence per se of money lent indorser; Bank v. Evans, 9 W. Va. 381, 384,
where surety signs as maker he will be bound equally with maker.
Admissibility of note, bill, etc., under count for money had and
eeived. Note, 52 Am. Dec. 756, 757.
I
I
1149 EX PARTE KEARNEY. 7 Wheat. 38-45
MiBcellaneons. Cited in Moses v. Bank, 149 U. S. 302, 87 L. Ed. 745,
13 Sup. Ct. 901, apparently not in point ; Stone v. Lawrence, 4 Cr. C. C. 12,
Fed. Cas. 13,484, as authority for holding where there is a variance be-
tween note set out in pleadings and one offered in evidence, such note can-
not be admitted.
7 Wbeat. S8>45, 6 K Ed. 391, EX PARTE KEABNET.
Supreme Ctourt may tene habeas corpus where person Is imprisoned under
warrant or order of any court of United States.
Approved in Ex parte Moran, 144 Fed. 600, denying jurisdiction of Cir-
cuit Court of Appeals to review conviction of capital crime in Oklahoma
court; Ex parte Watkins, 7 Pet. 572, 581, 8 L. Ed. 788, 791, granting habeas
corpus where one imprisoned on order of Circuit Court for District of
Columbia; dissenting opinion in In re Kaine, 14 How. 130, 132, 14 L. Ed.
356, 857, where party was held under commitment by commissioner act-
ing under treaty of 1842 with Great Britain; dissenting opinion in Ex
parte Wells, 18 How. 317, 5 L. Ed. 426, holding proposition true provided
court is acting under its appellate jurisdiction. Cited generally in dis-
cussion of habeas corpus in Holmes v. Jennison, 14 Pet. 623, 628, In re
Barry, 136 U. S. 613, 34 L. Ed. 509, s. c, 42 Fed. 125, Fed. Cas. 1059^ 10
L. Ed. 624, 627, arguendo ; Ex parte Terry, 128 U. S. 301, 32 L. Ed. 408,
9 Sup. Ct. 78, s. c, 13 Sawy. 460, where court holds writ need not be
awarded if it appear on showing of petitioner that if brought into court,
and cause of commitment inquired into, he would be remanded to prison;
In re Wong Guy, 6 Sawy. 241, 47 Fed. 719, where it is held Federal courts
have jurisdiction under habeas corpus to inquire into validity of State
statutes and State judgment? based thereon; Barrett v. Hopkins, 2 Mc-
Crary, 132, 7 Fed. 314, holding United States Circuit Court may issue
writ of habeas corpus to inquire into validity of judgment of a court-
martial; In re Haskell, 52 Fed. 797, as to when Federal courts will grant
writ of habeas corpus when petitioner is held under sentence of State
court ; Peltier v. Pennington, 14 N. J. L. 318, as to power of Federal courts
to issue writ of habeas corpus.
Qualified in Ex parte Parks, 93 U. S. 23, 28 L. Ed. 788, holding writ
should not issue unless court below has acted without jurisjdiction or ^ has
transcended its powers; Ex parte Reed, 100 U. S. 23, 25 L. Ed. 539, and
In re Lenifon, 166 U. S. 552, 41 L. Ed. 1112, 17 Sup. Ct. 659, where it was
sought to have writ of habeas corpus x)erform functions of writ of error.
Sjipreme Court has no general authority to review on error or appeal Judg-
ments of Circuit Courts in criminal cases.
Approved in Stuart v. Reynolds, 204 Fed. 715, 123 C. C. A. 13, hold-
ing in proceeding on constructive contempt, attachment should be like
indictment to extent of informing contemnor of charge so as to give op-
portunity to defend; Merchants Stock & Grain Co. v. Board of Trade,
201 Fed. 25, 120 C. C. A. 582, holding defendant in criminal contempt
not entitled to be confronted with witnesses against him; Heinze v. Butte
7 Wheat. 38-46 NOTES ON U. S. REPORTS. 1150
etc Min. Co., 129 FecT. 278, 280, 63 C. C. A. 388, order of contempt for
disobeying injunction is not reviewable by writ of error; BiiUock etc. Co.
V. Westinghouse etc. Co., 129 Fed. 106, 63 C. C. A. 607, writ of error and
not appeal is proper remedy to review order of contempt for violation of
injunction; Christensen etc. Co. v. Westinghouse etc. Co., 129 Fed. 96,
63 C. C. A. 598, Circuit Court of Appeals cannot review order in equity
suit adjudging party in contempt for disobe3dng injunction except on
appeal from final decree in that suit; In re Heinze, 127 Fed. 97, 98, hold-
ing Circuit Court of Appeals may review judgment convicting defendant
of contempt committed in equity suit; District of Columbia v. Prosi)ect
Hill Cemetery, 5 App. D. C. 511, holding appeal did not lie from order on
motion to vacate order of Supreme Court of District confirming report of
commissioners in condemnation proceedings; State v. Thayer, 158 Mo. 53,
66, 58 S. W. 14, 15, holding under Rev. Stats. 1899, art. X, §§ 2482, 2696,
and 2 Rev. Stats. 1899, p. 2566, art. Ill (Mo.), defendant convicted in
Jackson county of misdemeanor is entitled to appeal to Supreme Court;
Smythe v. Smythe, 28 Okl. 270, 114 Pac. 259, holding proceeding to punish
for failure to obey order to produce child waa criminal action, and Su-
preme Court had no appellate jurisdiction to review it; Forbes v. State
Council, 107 Va. 857, 60 S. E. 82, holding writ of error did not lie to
review order in contempt for violating decree made to compel obedience
thereto; Ex parte Watkins, 3 Pet. 208, 7 L. Ed. 666, when court was asked
on habeas corpus proceedings to review judgment of Circuit Court; In re
Metzger, 5 How. 190, 12 L. Ed. 110, holding Supreme Court has no juris-
diction to issue habeas corpus for purpose of examining commitment by
district judge, at chambers, under treaty with France; In re Kaine, 14
How. 119, 129, 14 L. Ed. 861, S55 (s, c, 14 Fed. Cas. 83, 87), in denying
habeas corpus to party committed by commissioner appointed under treaty
of 1842, with Great Britain; dissenting opinion in Ex parte Lange, 18
Wall, 185, 187, 188, 205, 21 L. Ed. 882, 888, this cannot be done indirectly
by means of writ of habeas corpus; New Orleans v. Steamship Co., 20
Wall. 392, 22 L. Ed. 367, holding contempt a specific criminal offense;
United States v. Sanges, 144 U. S. 319, 86 L. Ed. 449, 12 Sup. Ct. 612,
holding writ of error does not lie on behalf of United States in criminal
case; In re Davison, 22 Blackf. 476, 21 Fed. 621, to proceedings in habeas
corpus, where petitioner was held under sentence of court-martial; United
States V. Miller, 2 Cr. C. C. 248, Fed. Cas. 15,772, where petition for writ
of habeas corpus was denied, petitioner having been committed for con-
tempt; United States v. Plummer, 3 Cliff. 27, Fed. Cas. 16,055, where
applicant for writ of error had been convicted of a capital offense in
Circuit Court ; Ex parte Veremaitre, 28 Fed. Cas. 1149, on habeas corpus,
District Court cannot review facts of case over which an inferior court has
exclusive jurisdiction; Decatur v. Paulding, 14 Pet. 600, 603, 604, 10 L. Ed.
610, 612, as to conclusiveness of judgment of court whose jurisdiction is
final; dissenting opinion in Tennessee v. Davis, 100 U. S. 283, 26 L. Ed.
667, Ex parte Yarbrough, 110 U. S. 653, 28 L. Ed. 274, 4 Sup. Ct. 153, as
authority for holding Supreme Court may review judgment of Circuit
1161 ' EX PARTE KEARNEY. 7 Wheat. 38-45
Coiirt in criminal matters for purpose of ascertaining whether Circuit
Court has acted within its jurisdiction; dissenting opinion in Sparf v.
United States, 156 U. S. 176, 39 L. Ed. 387, 15 Sup. Ct. 321, Ex parte
Davis, 7 Fed. Cas. 47, arguendo; Curry v. Marvin, 2 Fla. 417, in determin-
ing constitutionality of a State act which limited jurisdiction of State
Supreme Court; Whittem v. State, 36 Ind. 203; Cartwright's Case, 114
Mass. 239, as authority for holding proceedings in contempt are in nature
of criminal proceedings; Yarbrough v. State, 2 Tex. 527, where like rule
is afifirmed of appellate powers of State Supreme Court.
Distinguished in Forsyth v. United States, 9 How. 572, 13 L. Ed. 263,
on "ground of special statute affecting territorial courts ; Worden v. Searls,
121 U. S. 25, 30 L. Ed. 857, 7 Sup. Ct. 820, on ground that proceedings
were not criminal; United States v. McElroy, 2 Mont. 496, when appeal
was from territorial District Court to territorial Supreme Court; State v.
Knight, 3 S. D. 515, 44 Am. St. Bep..813, 54 N. W. 414, where question
presented was whether contempt proceedings could be brought up for
review in State court by writ of error.
Federal courts have unquestionable authority to commit for contempt.
Cited in United States v. Jacobi, 1 Flipp. 110, Fed. Cas. 15,460, a con-
tempt for disobeying Federal court process.
Power of court to punish for contempt. Note, 15 E« '.i. 0. 36.
Where a court commits for contempt, its adjudicatitim is a conviction and
its commitment in consequence is execution.
Approved in Hultberg v. Anderson, 214 Fe<': 351, 352, 131 C. C. A. 125,
and Gompers v. United States, 233 U. S. 6^1, Ann. Oas^ 1915D, 1044, 58
L. Ed. 1120, 34 Sup. Ct. 693, both holding contempt of court was crime;
Hammond Lumber Co. v. Sailors Union of the Pacific, 167 Fed. 815, 816,
817, holding contempt proceeding was criminal proceeding under Rev.
Stats. § 860, providing evidence obtained in judicial proceeding could not
be used in criminal proceeding against party giving it; Tolman v. Leonard,
6 App. D. C. 232, holding Supreme Court of District had jurisdiction to
pass order requiring payment of alimony and to punish by imprisonment
as contempt failure to obey; Ex parte Shull, 221 Mo. 627, 133 Am. St. Bep.
496, 121 S. W. 11, holding presumptions or intendments would not be
indulged against defendant in contempt proceeding; Ex parte Creasy, 243
Mo. 705, 41 L. R. A. (N. S.) 478, 148 S. W. 922, holding warrant for con-
tempt of witness' refusal to answer questions insufficient when not speci-
fied in what way refusal was manifested; Costilla Land etp. Co. v. Allen,
15 N. "M. 533, 538, 110 Pac. 849, 850, holding order imposing fine to reim-
burse opposite party for loss due to violation of injunction was interlocu-
tory order in civil proceeding reviewable only on appeal after final decree;
dissenting opinion in In re Gompers, 40 App. D. C. 337, to point that dis-
obedience of order of Federal court was criminal offense against United
States; In re MuUer, 7 Blatchf. 25, Fed. Cas. 9911, holding court has no
power to discharge or remit sentence; Erwin v. United States, 37 Fed.
480, 2 L. R. A. 234, and Taylor v. United States, 45 Fed. 539, holding con-
7 Wheat. 38-45 NOTES ON U. S. REPORTS. 1152
tempt proceedings a ''cause" within meaning of word as used in fee bill;
Van Hoorebeke v. United States, 46 Fed. 459, is to the same effect; Ex
parte O'Brien, 127 Mo. 488, 30 S. W. 160, holding contempt of court is
a criminal offense; also, State v. Horner, 16 Mo. App. 194, and William-
son's Case, 26 Pa. St. 19, 67 Am. Dec. 382; Sessions v. Gould, 63 Fed.
1002, 26 U. S. App. 368, as authority for holding a co^viction in contempt
proceedings is a judgment in a criminal case; also to same effect. State
V. Markuson, 5 N. D. 150, 64 N. W. 935, Floyd v. State, 7 Tex. 216, and
Jordan v. State, 14 Tex. 440, 441; Butler v. Fayerweather, 91 Fed. 459,
holding commitment of witness for contempt in equity case, a final order
reviewable on error; Fanshawe v. Tracy, 4 Biss. 499, Fed. Cas. 4643, in
determining against whom the offense of contempt is committed; In re
EUerbe, 4 McCrary, 451, 13 Fed. 532, and Lester v. People, 150 HI. 424,
^ ^ 41 Am. St. Rep. 384, 37 N. E. 1004, as to nature of contempt proceedings;
and to same effect. In re Litchfield, 13 Fed. 868; State v. Nathans, 49 S. C.
204, 27 S. E. 54, arguendo; State v. Knight, 3 S. D. 514, 44 Am. St. Rep.
813, t:4 N. W. 414, and Snow v. Snow, 13 Utah, 22, 43 Pac. 622, where con-
tempts «are classified; Casey v. State, 25 Tex. 385, where court holds con-
tempt ot^ court is not an offense within the meaning of the Penal Code;
. Una V. Doad, 38 N. J. Eq. 462, arguendo, as to character of offense.
Legal mei<^ing of "conviction" or "convicted." Note, Ann. Gas.
1915B, 28:t.
Discussion of vigL of courts to ponisli for contempt at common law.
Cited in Ex parte Bu% 2 Cr. C. C. 392, Fed. Cas. 2186, and Ex parte
Stickney, 40 Ala. 168, as authority for holding courts punished for con-
tempt at common law; Cossart \. ..State, 14 Ark. 541, as to rule at common
law as to writ of error and habeas corpus in contempt proceedings;
Cooper V. People, 13 Colo. 371, 6 L. R. A. 492, 22 Pac. 801, in such pro-
ceedings, one court should not judge jurisdiction of another of co-ordinate
dignity and authority; Town v. Springer, 9 Qa. 132, Ex parte Wright, 65
Ind. 511, and Baldwin v. State, 126 lud. 31, 32, 25 N. E. 822, arguendo;
Watson V. Williams, 36 Miss. 343, approving rules of common law on
subject; dissenting opinion in In re Pierce, 44 Wis. 447, arguendo.
Supreme Court will not inquire into cause of commitment where party has
been committed for contempt by court of competent JurisdicUoii.
Approved in Bessette v. W. B. Conkey Co., 194 U. S. 331, 333, 48 L. Ed.
1003, 1004, 24 Sup. Ct. 665, Circuit Court of Appeals may review order
of Circuit Court finding person not party to suit guilty of contempt in
violating restraining order of that court; De Bara v. United States, 99 Fed.
945, holding on habeas corpus proceedings consolidation of indictments can-
not be reviewed ; State v. Buddress, 63 Wash. 33, 114 Pac. 882, holding facts
recited in order adjudging one guilty of contempt will be taken as true on
appeal ; New Orleans v. Steamship Co., 20 Wall. 392, 22 L. Ed. 357, where
court refused to reverse a judgment by Circuit Court, inflicting fine for
contempt; Hayes v. Fischer, 102 U. S. 122, 26 L. Ed. 96, and Ex parte
Terry, 128 U. S. 306, 32 L. Ed. 400, 9 Sup. Ct. 80, s. c, 13 Sawy. 465, are
1153 EX PARTE KEARNEY. 7 Wheat.i38-45
to same effect; Newport light Co. v. Newport, 151 U. S. 539, 38 L. Ed.
268, 14 Sup. Ct. 433, holding act of State Court of Appeals in ordering
court below to discharge rule for contempt, it is not subject of review
in Federal Supreme Court; Ex parte Nugent, 18 Fed. Cas. 472, .where peti-
tioner for writ of habeas corpus was imprisoned for contempt by order
of Senate; Ex parte McCarthy, 29 Cal. 400, holding legislative assembly
may refuse to party summoned before it for contempt, the aid of counsel ;
Tyler v. Hamersley, 44 Conn. 409, 26 Am. Rep. 474, and Caro v. Harwell,
20 Fla. 18, matters of contempt are entirely within province of court
adjudging same, and are not subject to review on writ of error; Clark
v. People, Breese, 341, 12 Am. Dec. 178, holding that in case of abuse of
discretion by committing judge, remedy is by indictment or impeachment;
First Church v. Muscatine, 2 Iowa, 71, each court of record is sole and
final judge in matters of contempt; Ex parte Adams, 25 Miss. 889, 890/
59 Am. Dec. 240, 241, holding as to procedure where discharge is sought
on habeas corpus; Phillips v. Welch, 11 Nev. 194, holding State Supreme
Court has no appellate jurisdiction in cases of contempt, where proceeding
is purely criminal; PhilliJ)s v. Welch, 12 Nev. 179, where State Supreme
Court refused, on certiorari, to review case on merits; State v. Towle, 42
N. H. 541, 644, 545, where justice of peace has jurisdiction to punish
as contempt, his sentence will not be revised on habeas corpus; William-
son's Case, 26 Pa. St. 17, 18, 67 Am. Dec. 879, 880, the power to deal with
an offense of this kind belongs exclusively to the court in which it is
committed; Ex parte Whitmore, 9 Utah, 444, 35 Pac. 525, petitioner will
not be discharged on habeas corpus unless committing court acted beyond
its jurisdiction; In re Falvey, 7 Wis. 640, imprisonment by order of legis-
lative assembly; Ex parte Whitmore, 9 Utah, 444, 35 Pac. 525, refusing
to disturb commitment for contempt, no excess of jurisdiction appearing;
Ex parte Tinsley, 37 Tex. Cr. 527, 66 Am. St. Rep. 820, 40 S. W. 307, re-
fusing to consider propriety of order disobeyed by contemner, jurisdic-
tion to make the order appearing. Cited, arguendo, Holmes v. Jennison,
14 Pet. 621, 10 L. JBd. 628. Cited in In re Callicot, 8 Blatchf. 94, ted.
Cas. 2323, as to jurisdiction of circuit judge to review on habeas corpus;
^United States v. Bedford Bridge Co., 1 Wood. & M. 440, Fed. Cas. 15,867,
arguendo; State v. Tugwell, 19 Wash. 252, 48 L. R, A. 728, 52 Pac. lOfel,
as to what is contempt; Una v. Dodd, 39 N. J. Eq. 180, holding party
accused of contempt cannot excuse himself by showing the judgment or
order violated is erroneous in point of law.
Distinguished in case of Electoral College, 1 Hughes, 588, Fed. Cas.
4336, where it clearly appeared from record State court had exceeded its
powers; Indianapolis Water Co. v. American Co., 75 Fed. 977, where con-
tempts are classified and cases in which proceedings will be considered
criminal pointed out; Ex parte Gould, 99 Cal. 362, 87 Am. St. R^p. 59, 21
L. R. A. 752, 33 Pac. 1112, and Stuart v. People, 3 Scam. 404, where com-
mitting court exceeded its jurisdiction; Wells v. Commonwealth, 21 Gratt.
504, Chappell v. Giles, 10 Wis. 102, on statutory grounds.
1—73
7 Wheat. 38-46 NOTES ON U. S. REPORTS. 1154:
Criticised in In re Spofford| 62 Fed. 4M, granting stay in contempt case
nntil appeal determined.
Contempt, relief by party convicted of — ^Appeal or writ of error.
Note, 22 Am. St. Bep. 417, 422, 428.
Contempt procedure in Federal court. Note^ Ann. Gas. 1916D, 1051,
1060.
Supreme Court will not grant habeas corpus where party has been com-
mitted for contempt by court of competent Jurisdiction.
Approved in Matter of Gregory, 219 U. S. 213, 55 L. £d. 189, 31 Sup.
Ct. 143, and Harlan v. McGourin, 218 U. S. 448, 21 Ann. Gas; 849, 54 L. Ed.
1105, 31 Sup. Ct. 44, both holding habeas corpus could not be used for
proceedings in error; Enoch Morgan's Sons & Co. v. Gibson, 122 Fed. 422,
holding violation of injunction prohibiting the using of a trade name,
-^defendant is not guilty of contempt when he states on his packages that
his goods are better than those named ; In re Burkell, 2 Alaska, HO, where
justice of peace added ''hard labor" to x)enalty of confinement in jail,
habeas corpus will not lie to cure error where hard labor is not in fact
being imposed as part of penalty; Nichols v. Judge of Superior Court,
130 Mich. 190, 89 N. W. 692, holding Municipal Court of Grand Rapids,
Michigan, has power to punish for contempt in subornation of perjury
in that court; Ex parte Martinez, 66 Tex. Cr. 8, 145 S. W. 963, denying
habeas corpus where relator convicted at special term convened in accord-
ance with statute therefor; Ex parte Duncan, 42 Tex. Cr. 680, 62 S. W.
765, holding failure or refusal of attorney to act on committee to examine
applicants for the bar is not a contempt; Miskimmins v. Shaver, 8 Wyo.
431, 446, 447, 58 Pac. 423, 428, 429, holding that petitioner was not guilty
of contempt who had person arrested for obtaining money by false pre-
tenses and then failed to answer questions when examined himself
for compounding fefony; State Supreme Court, dissenting opinion in
Ex parte Hardy, 68 Ala. 335, majority granting habeas corpus; Robb
V. McDonald, 29 Iowa, 334, 4 Am. Rep. 214, applying rule where justice
of peace committed witness for contempt; Gorham v. Luckett, 6 B. Mon.
648, the only inquiry, on application for writ, is whether tribunal had
power to punish for contempt in any case; dissenting opinion in Hyatt
V. Allen, 54 Cal. 364, as to right to issue habeas corpus in exercise of
appellate jurisdiction; dissenting opinion in Ex parte Edwards, 11 Fla.
190, majority granting writ of error to refusal of habeas corpus in con-
tempt case; dissenting opinion in Koehler v. Hill, 60 Iowa, 675, 15 N. W.
644, arguendo; Ex parte Rollins, 80 Va. 317, and Ex parte Marx, 86 Va.
44, 9 S. E. 477, as authority for holding writ of habeas corpus cannot be
used in place of writ of error.
Distinguished in Ex parte Holman, 28 Iowa, 152, where committing
court was held to have exceeded its powers; Tinsley v. Anderson, 171
U. S. 105, 43 L. Ed. 96, sustaining Supreme Court's jurisdiction on appeal
from order of State court committing for contempt, where a Federal priv-
ilege was set up by the defendant.
Wh«n court may refuse writ of habeas corpus. Note, 67 Am. Dec
897.
1156 BAYLEY v. GREENLEAP, 7 Wheat. 46^8
Habeas corpus to review errors or irregularities in proceedings. Note,
11 Ann. Gas. 1057.
Power to issue writ of habeas corpus. Note, 12 £. B. G, 501.
Miscellaneous. Cited in In re Nevitt, 117 Fed. 457, holding President
has no power to pardon a party in a civil suit imprisoned for contempt;
dissenting opinion in Ex parte Crane, 5 Pet. 210, 8'L. Ed. 100, as to
necessity of courts proceeding according to uniform principles; to same
effect, Decatur v. Paulding, 14 Pet. 604, 10 L. Ed. 612, and Holmes v.
Jennison, 14 Pet. 626, 10* L. Ed. 626; Ex parte Terry, 128 U. S. 309, 32
L. Ed. 410, 9 Sup. Ct. 81, s. c., 13 Sawy. 468, and In re Bogart, 2 Sawy.
409, Fed. Cas. 1596, for statement, "fact that a power may be abused
forms no solid objection against its exercise"; note to In re Burrus, 136
U. S. 608, 84 L. Ed. 507; In re Barry, 42 Fed. 121, Fed. Cas. 1059, and
In re Salisbury, 16 HI. 351, as to jurisdiction of United States courts;
Bethuram v. Black, 11 Bush, 632, as to discretion left with judge in issu-
ance of writ of habeas corpus; Knapp v. Thomas, 39 Ohio St. 389, 48 Am.
Rep. 469, not in jwint; Ex parte' Degener, 30 Tex. App. 574, 17 S. W.
nil, as to kinds of jurisdiction.
7 ^^eat. 46-58, 5 I.. Ed. 393, BAYUBY ▼. OSEENLEAF.
Lien of ▼vndor of real property is defeated 1»7 an alienation to a bona fide
pmchaaer without notice.
Approved in In re Hawley Down Draft Furnace Co., 230 Fed. 475, hold-
ing assignee of chose in action of insolvent assignor who did not give
notice to debtor, had no claim on moneys i>aid by debtor to trustee; Con-
solidated Arizona Smelting Co. v. Hinohman, 212 Fed. 820, 129 C. C. A.
267, holding covenant on purchase of mining claim to pay part of pro-
ceeds to vendor created no charge on land, and land passed to purchaser
from assignee in bankruptcy free of lien; Lindbloom v. Kidston, 2 Alaska,
297, vendor of realty who reserves no lien of record after delivery of
absolute^ deed to vendee has no equitable lien for deferred payments of
purchase money due him, which he can enforce against property in hands
of subsequent mortgagor for value; Baker v. Fleming, 6 Ariz. 421, 59
Pac. 102, where land is granted by absolute conveyance, grantor has no
implied equitable lien thereon for unpaid purchase money ; Pugh v^ Highley,
152 Ind. 258, 71 Am. St. Kep. 882, 53 N. E. 173, holding judgment creditor
purchasing at own execution sale in good faith ' takes free from secret
equities; Holt v. Hanley, 245 Mo. 364, 149 S. W. 4, holding sale of land
on creditor's bill under judgment against husbiind did not divest wife of
dower interest, though creditor having right to vendor's lien was party
defendant and preferred by judgment; Fitzgerald v. Richmond, 9 Fed.
Cas. 191, holding a mortgagee for valuable consideration a bona fide pur-
chaser as against lienholder who asserted his claim subsequent to giving
of mortgage; Houston v. Stanton, 11 Ala. 423, holding assignee of note
given by bona fide purchaser from vendee, may enforce collection of note
as against original vendor's lien; Woody v. Fislar, 55 Ind. 594, where
purchase was without notice of lien; Selby v. 'Stanley, 4 Minn. 76, pur-
7 Wheat. 46-58 NOTES ON U. S. REPORTS. 1156
chase without notice of existing lien ; Kilpatrick v. Ealpatrick, 23 Miss. 127,
55 Am. Dec. 81, and Boone v. Barnes, 23 Miss. 139, applying rule to pur-
chaser at sheriff's sale; Adams v. Buchanan, 49 Mo. 70, holding purchaser
under attachment proceedings comes within rule; White v. Dougherty,
1 Mart. & Y. 323, 17 Am. Dec. 808, to case of bona fide purchaser of
personal property) Moore v. Holcombe, 3 Leigh, 600, 601, 24 Am. Dec
685, 686, holding vendor has no lien on bonds given his vendee by pur-
chaser from vendee after assignment to innocent third party for value;
Poe V. Paxton, 26 W. Va. 612, in determining Ijfdn of vendor of equitable
title; Half man v. Ellison, 51 Ala. 551; Watkins v. Wassell, 15 Ark. 86,
ai^^endo.
Modified in Dufphey v. Frenaye, 5 Stew. & P. 241, where second vendee
had notice of lien before paying all of purchase price; Mitchell v. Daw- '
son, 23 W. Va. 89, subvendee is liable after notice to extent of purchase
mopey not paid.
Distinguished in Gaboon v. Robinson, 6 Cal. 227, holding vendor of realty-
has lien on same for purchase price when in hands of administrator;
Mounce v. Byars, 16 Ga. 477, a surety on a note given before purchase
of land is not such a creditor as may defeat vendor's lien; Eubank v.
Poston, 5 T. B. Mon. 293, mortgagee with notice of lien stands in same
position as purchaser with notice; Nailor v. Fisk, 27 Miss. 264, purchaser
bought with notice of lien; Kelly v. Mills, 41 Miss. 274, 275, 276, 277,
holding purchasers at sheriff's sale and judgment creditors are not pur-
chasers for valuable consideration, but are m^re volunteers.
Vendor who has taken no secnrity for purchase money,* retains equitable
lien for it on land against vendee and his heirs.
Approved in Welch v. Farmers' Loan & Trust Co., 165 Fed. 566, 91
C. C. A. 399, holding no vendor's lien arose where vendor accepted cove-
nants from vendee to convey other lands; In re Cannon, 121 Fed. 585,
holding under Code S. C, § 2456, that in bankruptcy proceeding creditors
after an unrecorded mortgage was given were entitled to the proceeds
of sale to the exclusion of antecedent creditors and mortgagee; Funk t.
Seehom, 99 Mo. App. 597, 74 S. W. 447, holding lien of one tenant in
common on interest of cotenant for excessive share of purchase price
does not create vendor's lien; Jensen v. Wilslef, 36 Nev. 44, Ann. Gas.
1914D, 1220, 132 Pac. 18, holding vendor's lien waived by accepting cer-
tificate of deposit as payment;' Knickerbocker Trust Co. v. Carteret Steel
Co., 79 N. J. Eq. 509, 82 Atl. 150, holding lien waived by vendor's state-
ment to intending purchaser from his vendee that he had no Jien; Camp-
bell V. Sidwell, 61 Ohio St. 187, 55 N. E. 610, holding vendor's lieh will
not have priority over subsequent bona fide mortgage lien; Coffman v.
Liggett 's Admr., 107 Va. 422, 59 S. E. 394, holding assignee for value of
chose in action without notice of prior assignment took right superior to
prior assignment not accompanied with transfer of legal title; Hardin v.
Boyd, 113 U. S. 765, 28 L. Ed. 1144, 5 Sup. Ct. 775, holding vendor holds
title in trust; Coos Bay C<^ v. Crocker, 6 Sawy. 580, 4 Fed. 582, vendee is
trustee of vendor in resx>ect to purchase money; Wellborn y. Williams,
115^ B AYLE Y v. GREENLEAF. 7 Wheat. 46^8
9 Ga. 88, 52 Am. Ded. 429, where excellent discussion of vendor's lien may
' be found ; Moreton v. Harrison, 1 Bland Ch. 498, such lien is an inci-
dent of every contract for the sale of real estate; Iglehart v. Armiger, 1
Bland Ch. 527, and lien may arise as incident to sale of equitable interest;
Clowler V. Rawlings, 9 Smedes & M. 127, 47 Am. Dec. 109, holding taking
personal security from vendee does not destroy lien; Parker v. Kelly, 10
Smedes & M. 191; hdfdlng further as to rights of assignee of notes given
for purchase money; Bledsoe v. Games, 30 Mo. 451, holding vendor of
equitable title has same lien as vendor of legal; Brinkerhoff v. Vansciven,
4 N. J. Pq. 258, fact that vendee gave mortgage to third party for part
of purchase money will not affect lien; Herbert v. Scofield, 9 N. J. Eq.
493, if part of purchase money remains unpaid, grantor has lien to that
amount on premises sold; Maroney v. Boyle, 141 N". Y. 467, 38 Am. St.
Rep. 822, 36 N. E. 512, mere taking of promissory note lor purchase
money does not waive lien ; Kent v. Gerhard, 12 R. I. 94, 34 Am. Rep. 613,
holding where vendee, a feme covert, gives her sole note and mortgage
to secure payment, vendor does not lose his lien thereby; Manly v. Slason,
21 Yt. 279, 52 Am. Dec. 65, purchaser from vendee who buys knowing that
some part of purchase money has not been paid, takes with notice of
lien; Graves v. McCall, 1 Call, 419, affirming right of vendor to pursue
lands in hands of purchaser who took with notice; Crowe v. Colbeth, 63
Wis. 646, 24 N. W. 480, where lien was enforced against heirs; Kirksey
v. Mitchell, 8 Ala. 409, arguendo; Bankhead v. Owen, 60 Ala. 466, as to
nature of vendor's lien; Godwin v. Collins, 4 Houst. 60, arguendo; Colquit
V. Thomas, 8 Ga. 263, as to nature of lien; Williams v. Chapman, 17 111.
425, 65 Am. Dec. 671, arguendo ; Fair v. Howard, 6 Nev. 315, 3l6, as bearing
on question when mortgagee will be considered bona fide purchaser.
Distinguished in Hall v. Click, 5 Ala. 364, 39 Am. Dec. 328, and Lewis
▼. Ragan, 7 Gill & JL 124, 125, 28 Am. Dec. 197, where vendor took note
for purchase price and assigned same without recourse, assignee has no
lien; Shall v. Biscoe, 18 Ark. 158, assignee of note \ given by vendee to
vendor for purchase money is not subrogated to vendor's lien rights; dis-
senting opinioi^ in Scott v. Warren, 21 Ga. 416, holding when mortgage
given for purchase money, vendor's lien no longer exists; Briggs v. Hill,
6 How. (Miss.) 364, 369, 38 Am. Dec. 442, 446, holding vendor's lien
does not pass to assignee of note given for purchase price.
Criticised in McCandlish v. Keen, 13 Gratt. 622, where property con-
veyed in consideration of covenant to pay annuity, vendor's lien does not
attach ; Herring v. Cannon, 21 S. C. 217, 53 Am. Rep. 666, remarking that^
principle of secret liens is contrary to the laws and policy of South
Carolina.
Denied in Womble v. Battle, 3 Ired. Eq. 189, holding the doctrine does
not obtain in North Carolina (Frame v. Sliter, 29 Or. 130, 34 L. R. A. 693,
45 Pac. 292); nor in Oregon,' Ahrend v. Odiorne, 118 Mass. 267, 19 Am.
Rep. 454; McCorkle v. Montgomery, 11 Rich. Eq. 132, doctrine has never
prevailed in South Carolina; to same effect in dissenting opinion in Car-
raway v. Carraway, 27 S. C. 590, 5 S. E. 165; Smith v. Allen, 18 Wash. 6,
7 Wheat. 46^8 NOTES ON U. S. REPORTS. / 1158
V
63 Am. St. Bep. 867, 39 L. E. A. 84, 50 Pac. 784, no vendor's lien exists in
absence of agreement.
The waiver of the vendor's lien. Note, 137 Am. St. Bep. 193.
In what jurisdictions implied vendor's lien is recognized. Note, 2
f Ann. Gas. 872.
Quaere, whether lien can be asserted against assignees of bankrupt, or
other creditors coming in under purchaser by act of law.
Cited in Ex parte General Assignee, 10 Fed. Gas. 166, holding assign-
ment by operation of law passes rights of bankrupt in same plight as
he possessed them; and to same effect, In re Perdue, 19 Fed. Gas. 220, 2
Bank. Reg. 67; Webb v. Robinson, 14 Ga. 225, 226, 229, holding creditors
who become| such without notice of vendor's lien, and those claiming
^ under such creditors, are protected against lien; dissenting opinion in
/ Eubank v. Poston, 6 T. B. Mon. 301, 309, holding lien cannot be asserted
against vendee's mortgagee; Bank v. Stone, 80 Ky. 121, lien may be
# asserted against assignee in bankruptcy; Shirley v. Sugar Refinery, 2
Edw. Gh. 511, 512, 513, holding conveyance to assignee for benefit of
creditors does not defeat the lien; Gann v. Ghester, 5 Terg. 209, holding
lien cannot be asserted against purchaser under foreclosure sale; White-
ley V. Trust Go., 76 Fed. 79, 43 U. S. App. 643, 34 L. B. A. 806, arguendo;
Haskell v. Sevier, 25 Ark. 161, in determining character of lien created
by unrecorded mortgage; Hammond v. Peyton, 34 Minn. 530^ 27 N. W. 72;
Ellis V. Singletary, 45 Tex. 40, as to rights of creditors in property covered
by vendor's lien.
Vendor of real property cannot assert his lien agilnst <9edltoni holding
under bona fide conveyance ftom vendee.
Gited in Judson v. Gorcoran, 17 How. 615, 15 L. Ed. 233, where assignee
/ of claim against Mexico gave no information thereof until subsequent
assignee had successfully prosecuted his claim before commissioners; In
re Butler, 2 Hughes, 249, Fed. Gas. 2235, where assignee of vendor's claim
failed for fifteen years to assert his claim, during which time other liens
were created by vendee; Bank v. Tompkins, 57 Fed. 23, 13 U. S. App. 300,
where vendee, bank president, conveyed to bank; dissenting opinion in
Tuttle V. Walton, 1 Oa. 64, holding corporation having secret lien on shares
of stock cannot enforce same against bona fide purchaser at execution sale ;
Dawson v. Insurance Go., 27 Minn. 414, 8 N. W. 144, holding lien will not
j)revail against claim of creditor, which claim accrued subsequent to lien
and without notice of it ; Dunlap v. Burnett, 5 Smedes & M. 710, 45 Am. Dec.
271, where creditors held under mortgage from vendee; Fain v. Inman,
6 Heisk. 11, 19 Am. Bep. 580, holding vendor's equitable lien subordinate
to a specific lien acquired by a creditor of vendee, with or without* notice,
before proceedings are instituted to enforce such equitable lien; Boone
V. Ghiles, 10 Pet. 210, 9 L. £d. 400, as to principle that equitable title, prior
in time, is better in right; Byers v. Fowler, 12 Ark. 285,^64 Am. Dec 286,
and Shelton v. Lewis, 27 Ark. 197, are to same effect; Roberts v. Broom,
1 Harr. 64, arguendo. The following cite this case as authority for hold-
1159 BROWDER v. MoARTHUR. 7 Wheat. 68-59
«
ing a pre-existing debt is valuable consideration for a promise: Work v.
Brayton, 5 Ind. 398, mortgage to secure pre-existing debt; Babcock v.
Jordan, 24 Ind. 20, where promise was contained in mortgage, there was
snfScient consideration ; Moore v. Fuller, 6 Or. 274, 26 Am. Bep. 626, where
wife gave mortgage in satisfaction of husband's debts, there was sufficient
consideration; dissenting opinion in Oakley v. Hibbard, 1 Pyin. 682, debts
were sufficient consideration #f or assignment.
Distinguished in Leland v. Ship Medora, 2 Wood. & M. 116, Fed. Cas.
8237, holding assignee by operation of law is not like assignee a purchaser
fof value.
Modified in Chance v. McWhorter, 26 Ga. 318, holding vendor's lien is
not defeated by mortgage given by vendee to secure debt contracted before
purchase; Briscoe v. Bronaugh, 1 Tex. 338, 46 Am. Dec. 118, where cred-
itor took with notice of lien. That part of opinion which seems to hold
pre-existing debt is valuable consideration for transfer of property is
criticised in Twelves v. Williams, 3 Whart. 493, 81 Am. Dec. 544.
Antecedent debt as consideration constituting grantee or mortgagee
purchaser for value. Note, 3 Ann. Gas. 896.
Discharge of antecedent debt as consideration entitling bona fide pur-
chaser or encumbrancer to protection of recording acts. Note, 27
L. B. A. (N. 8.) 622.
Vendor's lien preferred to subsequent equal equity, unconnected witb legal
or equitable advantage which gives superior daifli to legal estate.
Approved in United 8tates v. Detroit etc. Co., 131 Fed. 678, purchasers
in good faith of equitable title evidenced by receiver's final receipts, upon
which patents subsequently issued, have complete defense as against gov-
ernment suit to set aside patents for fraud in procurement; Butterfield v.
Okie, 36 N. J. Eq. 483, holding claim of vendee's mortgagee without con-
sideration is subordinate to vendor's lien; Cox v. Romine, 9 Gratt. 29,
arguendo; Hoult v. Donahue, 21 W. Va. 300, as to conflicting equities.
Distinguished in Wells, Fargo & Co. v. Smith, 2 Utah, 47, \fhere prior
creditor had failed to record his lien, his rights were postponed to subse-
quently acquired l^al rights of others.
Legal title prevailing where equities are equal. Note*, 10 E. B. 0. 670.
Miscellaneous. Cited in Rice v. Rice, 36 Fed. 861, not in point; Briscoe
V. Bronaugh, 1 Tex. 330, 46 Am. Dec. 112, as to whether vendor must
have legal title to lot to entitle him to lien for purchase money; Tingle v.
Fisher, 20 W. Va. 607.
7 Wheat. 6fr-69, 6 L. Ed. 387, BBOWDEB ▼. MeABTHUB.
Supreme Court will not grant rehearing in a cause after it has been
remitted to the court below.
Approved in Thomas v. Thomas, 27 Okl. 804, Ann. Oaa. 19120, 718,
36 L. R. A. (N. S.) 124, 113 Pac. 1059, Ott v. Boring, 131 Wis. 487, 11 Ann.
Oaa. 867, 111 N. W. 833, and Peck v. Sanderson, 18 How. 42, 16 L. Ed. 262,
7 Wheat. 58-69 NOTES ON U. S. REPORTS. U60
all following rule ; Omaha Electric Light etc. Co. v. City of Omaha, 216 Fed.
854, 133 C. C. A. 52, by order staying mandate pending appeal to Supreme
Court, Circuit CQurt of Appeals retained jurisdiction, and on dismissal of
appeal could modify decree though rendered at previous term; Montana
Min. Co. V. St. Louis etc. Co., 147 Fed. 903, where Court of Appeals af&rmed
judgment, but subsequently on cross-error reversed it on different point,
and ordered n^w trial, questions therein considered will not be reconsidered
on error from second judgment; Burgat v. Robinson, 123 Fed. 264, hold-
ing effect of order of Circuit Court staying mandate after judgment is to
retain jurisdiction and power to grant rehearing until manda^ has issued ;
Chisolm V. Propeller Tow Boat Co. of Savannah, 59 S. C. 552, 38 S. E. 157,
holding that when cause has been transferred from State to Federal court
and remanded to State court, where judgment is rendered, the judgment
is not affected by subsequent revocation of said -remand; Bushnell v.
Crooke Co., 150 U. S. 83, 87 L. Ed. 1007, 14 Sup. Ct. 22, application for
rehearing cannot be entertained after expiration of term at which judg-
ment rendered; Lovett v. Florida, 29 Fla. 401, 16 L. B. A. 316, 11 South.
179, appellate court loses jurisdiction after remittitur issues and is lodged
in lower court; Merchants' Bank v. Grunthal, 39 Fla. 394, 22 South. 687,
to same effect; Kingsbury v. Buckner, 70 111. 517, former adjudication is
conclusive on seconii appeal as to points decided; Stationery Co. v. Hentig,
31 Kan. 323, motion for rehearing will not be entertained when made in
second term after decision was rendered; Carr v. Green, Rich. Eq. Cas. 409,
Court of Appeals will grant rehearing only on newly discovered evidence;
Noonan v. Bradley, 12 Waif. 129, 20 L. Ed. 281, stating an exception in
case of fraud; Tyler v. Magwire, 17 Wall. 283, 21 L. Ed. 588; Poole v.
Nixon, 19 Fed. Cas. 1000, arguendo.
Modification suggested in Legg v. Overbagh, 4 Wend. 193, ^1 Am. Dec
118, if remittitur is irregularly obtained or erroneously entered.
Distinguished in Chambers v. Hodges, 3 Tex. 529, but court is not pre-
vented from declaring judgment void in ease not legally before it.
Jurisdiction of appellate court after remand. Note, 11 Ann. Cas. 866.
On second appeal of same cause Supreme Oouit will not inquire Into merits
of original decree.
Approved in Illinois v. Illinois Cent. R. R. Co., 184 U. S. 91, 46 L. Ed.
446, 22 Sup. Ct. 305, holding where decree of Circuit Court is affirmed as
to all matters but one on appeal to Supreme Court, only that one matter
may be reopened, and decree is conclusive as to others; Washington Bridge
Co. V. Stewart, 3 How. 426, 11 L. Ed. 664, holding after case has been
decided upon its merits and remanded, it is too late on secoiid appeal to
allege court had no jurisdiction to try first appeal; Siaser v. Many, 16 How.
103, 14 L. Ed. 863, holding, where appeal was taken from order of Circuit
Court fixing costs. Supreme Court will not look to original appeal for
purpose of acquiring jurisdiction; Supervisors v. Kennicott, 94 U. S. 499,
24 L. Ed. 260, whatever has been decided in Supreme Court on appeal
cannot be re-examined on a subsequent appeal of same case; Bissell Co. v.
Goshen Co., 72 Fed. 553, 43 U. S. App. 41, holding like rule applies in
1161 RICARD V. WILM AMS. 7 Wheat. 59-122
Circuit Court of Appeals ; Semple v. Anderson, 4 Gilm. 5p2, holding State
Supreme Court will not go back of its former adjudication in same case,
even though it acted without jurisdiction on first hearing; Hobson v. Doe,
4 Blackf. 490^ where court refused to consider errors alleged to have hap-
pened prior to former judgment; Ex parte Sibbald^ 12 Pet. 492, 9 L. ISd.
1169; Kingsbury v. Buckner, 134 U. S. 671, 33 L. Ed. 1055, 10 Sup. Ct.
645, arguendo; Dodge v. Gaylord, 53 Ind. 369, as to where decision of
Supreme Court becomes law of case.
Conclusiveness of prior decisions on subsequent appeals. Note, 84
L. B. A. 381.
Miscellaneous. Cited in Metcalf v. Watertown, 68 Fed. 861^ 34 U. S.
App. 107.
7 Wheat. 69-122, 6 !•. Ed. d9S, BIOAED v. WITJJAMB. ^
Possession of land by party, claiming it as his own in fee, is prima facie
evidence of his ownership and seisin of the inheritance. •
Approved in United States v. Chavez, 175 U. S. 522, 44 U Ed. 269, 20
Sup. Ct. 163, holding long and uninterrupted possession of real property
creates presumption that instruments of title once existed ; Hackctt v.
Alston, 110 Fed^ 911, holding right of possession is presumed from posses-
sion of land or of improvements thereon ; Kotz v. Belz, 178 111. 445, 53 N. £.
370, holding where widow entered into possession of husband's land, claim-
ing title in fee, paying taxes, collecting rent and improving property for
twenty years, she became owner in fee under 2 Starr &.C. Ann. Stats.
2d ed., p. 2599 (111.) ; Knight v. Knight, 178 111. 556, 53 N. E. 307, holding
declarations of person in possession, asserting claim of ownership, are
admissible as evidence of adverse possession; Texas etc. Ry. Co.. v. Broom,
53 Tex. Civ. 83, 114 S. W* 657, declarations of one under whom defendant
claimed by prescription as to extent of his claim were admissible, though
he was still living; Illinois Steel Co. v. Budzisz and Wife, 106 Wis. 519,
82 N. W. 534, holding under Rev. Stats,, § 2302 (Wis.), person in wrong-
ful possession of land may, by oral agreement, surrender possession to
another, and after joint possession for twenty years defeat action for
possession by owner; Milsap v. Stone, 2 Colo. 139, in action of ejectment;
Mason v. Park, 3 Scam. 533, holding this is sufficient proof of ownership
to maintain ejectment or trespass for injury to inheritance; Davis v.
Easley, 13 111. 198, 200, holding further as to evidence admissible to show
possession; Gosselin v. Smith, 154 111. 78, 39 N. E. 981, and such title will
descend; McFarlane v. Ray, 14 Mich. 471, these facts are prima facie
evidence of title as against one who shows no right in himself; Dale v. .
Faivre, 43 Mo. 557, this gives sufficient title to maintain ejectment gainst S
one claiming under possession alone ; Roebke v. Andrews, 26 Wis. 318, 340,
as to admission in evidence of declarations made by possessor during pos-
session relative to title; Winchester v. Stevens Point, 58 Wis. 358, 17
N. W. 549, as authority for holding possession is evidence of seisin ; Brooks
V. Bruyn, 18 111. 642, ,68 Am. Dec. 581, and White v. Loring, 24 Pick! 322,
'arguendo; Straw v. Jones, 9 N. H. 402, as to necessity of possession being
7 Wheat. 59-122 NOTES.ON U. S. REPORTS. 1162
continuous; Southampton v. Mecox Bay Co., 116 N. Y, 16, 22 N. E. 392,
arguendo.
Possession as evidence of title. Note, 60 Am. Dec. 602.
Mere possession eTldences no more than present occupation by rigbt.
Approved in Franz v. Mendoma, 131 Cal. 209, 63 Pac. 363, holding in
order to obtain prescriptive right of way user must be adverse; Coquille
Mill etc. Co. V. Johnson, 52 Or. 553, 132 Am. St. Rep. 716, 98 Pac. 134,
holding possession of boom on river was- under license and not adverse to
riparian owner; Kirk v. Smith, 9 Wheat. 288, 6 L. Ed. 92, holding to give
title possession must be adverse ; Stillman v. White Rock Co., 3 Wood. & M.
549, Fed. Cas. 13,446, possession to be adverse must be consistefnt with the
idea of a deed, or raise presumption of one; Spalding v. Grigg, 4 Ga. 87,
^ permissive possession cannot affect title; Grube v. Wells, 34 Iowa, 160,
j^ entry without color or claim of right does not set statute of limitations in
^^ motion; Arnold v. Stevens, 24 Pick. Ill, 35 Am. Dec. 808, there can be
no presumption of a regrant of a profit from possession by owner not
inconsistent with rights of grantee; McDonald v. Fox, 20 Nev. 371, 22
Pac. 236, holding where party occupies land up to a fence, believed to be
, on the boundary line, his occupation is not adverse if his intent is to
occupy to boundary line only; Cobb v. Davenport, 32 N. J. L. 385, to
incorporeal hereditament ; Bedell v. Shaw, 59 N. Y. 50, and the quality and
extent of right acquired by possession depends on the claim accompanying
it; Draper v. Monroe, 18 R. I. 401, 28 Atl. 341, where there were no acts
on part of claimant of title by adverse possession which were inconsistent
with permissive occupation; dissenting opinion in Stafford v. Watson, 41
Ark. 31, bare possession is prima facie evidence of right to possession;
Lancey v. Brock, 110 III. 615, as to presumptions arising from subsequent
possession when prior possessor did not hold under claim of ownership;
Walsh V. Mclntire, 68 Md. 418, 13 Atl. 351, and White v. Keller, 114 Mo.
484, 21 S. W. 861, as to nature of possession which must be shown in order
to base title on adverse possession ; Stark v. Smith, 5 Ohio, 456, as to when
mere length of possession will be considered evidence of title; McKinney
v. Daniel, 90 Va. 704, 19 S. E. 881, arguendo.
Distinguished in Bradstreet v. Huntington, 5 Pet. 445, 8 L. Ed. 186,
where grantee of tenant in common entered into possession claiming whole
estate; Skipwith v. Martin, 50 Ark. 154, 6 S. W. 518, where possessor
clain^ed in fee; Magee v. Magee, 37 Miss. 154, where jury inferred adverse
possession from other acts taken in connection with possession.
Necessity for color of title, not expressly made a condition by statute,
in adverse possession. Notes, 15 L. R. A. (N. S.) 1181, 1188, 1195,
1211, 1127, 1246.
What is necessary to obtain easement by prescription. Note, 10
£. R. 0. 95.
Possession not proved to be wrongful will be presumed to be lawfdL
Cited in Burke v. Negro Joe, 6 Gill & J. 143, an act will be presumed to
be lawful when the commencement is not proved to be wrongful; McEwen
1163 BICARD V. WILLIAMS, 7 Wheat. 59-122
V. Portland, 1 Or. 302, and title given thereby must prevail until complain-
ants show a better one; Roberts v. Richards, 84 Me. 9, 24 Atl. 427^ as to
presumption of possession being in subordination to true title; Orr v.
Hollidays, 9 B. Mon. 60, as to lessors in action of ejectment.
A dlflseiJBor cannot qualify bis own .wrong.
Cited in Carpenter v. Webster, 27 Cal. 562, arguendo.
FresnmptionB of grant arising from lapse of time are appUed to corporeal
as well as incorporeal hereditaments.
Approved in Carter v. Goodson,'114 Ark. 67, 169 8. W. 808, holding
presumption of gnint from long-continued possession Was question for
jury; Bryan v. Tormey, 3 Cal. Unrep. 89, 21 Pac. 727, holding grant pre-
sumed from possession and use under claim of title by deed from prior
owner with knowledge of prior owner; Mason v. Tearwood, 58 Wash. 281,
SO L. B. A. (N. 8.) 1158, 108 Pac. 610, holding right to use of stream
acquired by adverse use for ten years; Fletcher v. Fuller, 120 U. S. 547,
30 L. Ed. 762, 7 Sup. Ct. 674, to corporeal hereditament; Williams v..
Nelson, 23 Pick. 144, 34 Am. Dec. 48, where easement was presumed froznii^
twenty years' flowage of land of another ; Hanea v. Peck, Mart. & T. 232,
233, "court will instruct jury to presume grant from long-continued and
uninterrupted possession"; Hale v. Marshall, 14 Gratt. 494, a party in
possession claiming under an equitable title for twenty-five years may be
presumed to have received a conveyance of legal title; Jenkins v. Pye, 12
Pet. 262, 9 L. Ed. 1079, ad to force that will bd given to presumptions;
United States v. Chaves, 159 U. S. 464, 40 L. £d. 220, 16 Sup. Ct. 62;
Arnold v. Stevens, 24 Pick. 110, 35 Am. Dec. 308, arguendo; generally in
Warfield v. Lindell, 30 Mo. 289, 77 Am. Dec. 622, as to reasons for rule ;
to same effect in Downing v. Pickering, 15 N. H. 349; in discussion as to
doctrine of presumptions in Jackson v. Schauber, 7 Cow. 199; also in
Schauber v. Jackson, 2 Wend. 47, and Jackson v. Mancius, 2 Wend. 363;
reviewing authorities on doctrine of presumption of grant arising from
lapse of time in Blake v. Davis, 20 Ohio, 242 ; also Caul v. Spring, 2 Watts,
396; Townsend v. Downer, 32 Vt. 206, as to grounds on which rest pre-
sumption of grant; to same effect in Edwards v. Van Bibber, 1 Leigh, 194.
Presnmption of grant cannot arise where claim is of such nature as to be
at variance with supposition of.
Approved in Riffle v. Skinner, 67 W. Va. 82, 88, 89, 103, 67 S. E. 1078,
1081, 1086, following rule ; United States v. Pendell, 185 U. S. 200, 46 L. Ed.
871, 22 Sup. Ct. 628, holding sufficient support for private land claim that
Spanish grant was made to original grantees is afforded by correct copy
of original record taken under act of May 23, 1837, to perpetuate evidence
of title ; Hays v. United States, 175 U. S. 260, 44 L. Ed. 155, 20 Sup. Ct.
84, holding no presumption of grant will arise when document purporting
to be grant of land in New Mexico by justice of peace or alcalde makes
no reference to any grant from Governor, or any formalities observed
under Spanish or Mexican customs; Oregon etc. B. Co. v. Grubissich, 206
Fed. 583, 584, 124 C. C. A. 375, holding lost grant not presumed when
7 Wheat. 59-122 NOTES ON U. S. REPORTS. 1164
•
claim was based on instrument executed by prior owner; Jesse French
Piano & Organ Co. v. ForBes et al., 129 Ala. 478, 29 South. 685, holding
presumption that easement has been extinguished arises from possession
by owner of servient estate adverse to existence of easement which has con-
tinued for sufficient time to give title by prescription; Null v. Williamson,
166 Ind. 545, 78 N. E. 78, holding where circumstances showed easement
was permissive, they were fatal to prescription; State v. Dickinson, 129
Mich. 229, 88 N. W. 624, holding presumption of grant would be created
where in ej^tment by State it was shown that defendant's grantors had
been in possession for over one hundred years, had paid taxes, and that
all records had been lost; Toltec Ranch Co. v. Babco«k, 24 Utah, 192, 66
Pac. 878, holding under Rev. Stats, §§ 2859, 2861, 2865, relating to adverse
possession, where public lands were granted to tC railroad subject to con-
dition of identiiication, and defendant's vendor entered on SBjke, inclosed
«nd cultiiuited it, and held open and notorious possession for twenty years,
\e had established title by adverse possession; Trustees of Caledonia
bounty Grammar School v. Kent, 84 Vt. 12, 14, 77 Atl. 881, 882, holding
ATcumstances of case did not warrant presumption of grant; Logan v.
Ward, 68 W. Va. 375, 52 S. E. 401, grant of undivided share from one
joint tenant to another not presumed from mere silent possession for long
time; Ransdale v. Grove, 4 McLean, 285, Fed. Cas. ll,i}70, where under
facts it appeared claimant acquired title from another source; Jackson v.
Porter, 1 Paine, 467, Fed. Cas. 7143, where occupant claimed title from
Indians, who were able to grant no more than a possessory interest;
McCIaskey v. Barr, 47 Fed. 163, evidence showed that within period of
statute of limitations claimants had sought to purchase title; Nelson v.
Butterfield, 21 Me. 235, where servient tenant cannot mainain suit to pre-
vent, act, a grant cannot be presumed; Snoddy v. Kreutch, 3 Head, 305,
where claimant of title through adverse possession did not show possession
of disputed land; Smith v. Higbee, 12 Vt. 124, where title is claimed from
a deed which is shown to be void, it will not be presumed there was an
independent grant; Townsend v. Downer, 32 Vt. 193, where surrounding
circumstances were inconsistent with supposition of grant; Edson v. Mun-
sell, 10 Allen, 569, as to conditions which must be shown in order to war-
rant a jury to presume a grant; Wallace v. Minor, 7 Ohio, 250, holding
patent cannot be presumed where proper records contain no evidence or
indication of a grant having been made; Taylor v. Watkins, 26 Tex. 693^
arguendo.
Presmnption of grant Is limited to periods analogous to those of statute
of limitations, in cases where statute does not apply.
Approved in Central Coal & Coke Co. v. Penny, 173 Fed. 343, 97 C. C. A.
600, holding conclusive legal presumption of grant arose from exclusive
adverse possession for twenty years; Lummer v. Unruh, 25 Cal. App. 107,
142 Pac. 918, holding proof of possession for thirty years sufficient evidence
that land did not fall within exceptions of deed under which it was
claimed; dissenting opinion in Oregon etc. R. Co. v. Grubissich^ 206 Fed.
I^j 124 C. C. A. 375, majority holding presumption could not be indulged
1165 RICARD V. WILLIAMS. 7 Wheat. 59-122
because claim was under instrument executed by prior owner; Union Water
Co. V. Crary, 25 Cal. 609, 86 Am. Dec. 149, holding a presumption of grant
arises from five years' continued adverse possession and use of water;
Williams v. Turner, 7 Ga. 353, where limitation period of statute was
followed; Burdick v. Heivly, 23 Iowa, 514, from ten years' actual adverse
possession and use of premises, grant will be presumed; House v. liifont-
gomery, 19 Mo. App. 179, 180, in determining length of time required to
acquire an easement by prescription; Wallace v. Fletcher, 30 N. H. 447,
448, an adverse, exclusive and uninterrupted enjoyment for twenty years
of an incorporeal hereditament affords a conclusive presumption of a grant ;
Rogers v. Mabe, 4 Dev. 189, 190, grant will be presumed from twenty
years' possession of land as owner; Comett v. Rhudy, 80 Va. 714, holding,
as to things incorporeal, twenty years' adverse, exclusive, undisturbed
possession affords condusii^e presumption of title; to same effect, Rogerson
V. Shepherd, 33 W. Va. 315, 10 S. E. 635; Fletcher v. Fuller, 120 U. S-
560, 30 L. Ed. 764, 7 Sup. Ct. 676, arguendo; Roundtree v. Brantley, 34
Ala. 552, 78 Am. Dec. 471, as to period of adverse enjoyment required to
give right to easement ; Fitzhu'gh v. Crogan, 2 J. J. Marsh. 436, 19 Am. Dec.
146; Hunt v. Hunt, 3 Met 185, 37 Am. Dec. 184; Edson v. Munsell, 10
Allen, 567, arguendo.
Where other circumstances are very cogent and full, grant may be pre-
sumed within period short of statute of limitations.
Apparently doubted in Oilman v. Tilton, 5 N. H. 233, holding adverse
user of water for period short of twenty years is not, of itself, sufficient
ground to sustain presumption of a grant.
Purchaser froin administrator enters into land by operation of law, so
tlukt 4ie is under estate of intestate.
Cited in Crandall v. Gallup, 12 Conn. 376, holding there is no privity
between administrator and purchaser under sale by order of court; CoveU
v. Weston, 20 Johns. 420; McPherson v. Cunliff, 11 Serg. & R. 427, 14
Am. Dec. 648, arguendo.
Power to subject lands to payments of decedent's debts if land remains
in heirs' possession.
Cited in Florida etc. Co. v. Finlayson, 91 Fed. 16, enforcing a judgment
against land in possession of heirs of the debtor.
Power of administrators to sell realty for payment of debts must be exer-
cised within reasonable time.
Approved in Cohen v. Tuff, 4 Boyce (Del.), 197, 86 Atl. 836, holding
administrator would not be allowed order to sell lands of deceased to pay
judgment creditors after time limited by statute for recovery on judg-
ments; Tuff V. Cohen, 3 Boyce (Del.), 407, 408, 84 Atl. 947, holding power
to sell real estate of decedent to pay judgment limited to twenty years
from time judgment became payable; In re Tuohy's Estate, 33 'Mont. 247,
83 Pac. 491, upholding prder for executor's sale of lands to pay debts;
Mays V. Rogers, 37 Atk. 160, holding a delay for ten years unreasonable;
y
7 Wheat. 59-122 NOTES ON U. S. REPORTS. U66
Roth V. Holland, 56 Ark. 637, 639, 35 Am. St. Rep. 129, 181, 20 S. W. 522,
523, an unexcused delay of seven years is unreasonable; Griswold v. Bige-
low, 6 Conn. 265, 267, 268, holding, where creditor sought to take advan-
tage of his lien within a year after his claim accrued, there was no laches,
and power of administrator is not defeated by alienation by heir or devisee ;
Wooster v. Hunt's Co., 38 Conn. 260, 261, creditors by laches waived right
to compel sale; Dorman v. Lane, 1 Gilm. 147, where administrator, being
creditor, neglected for fifteen years to a'pply for power to sell intestate's
realty; Unknown Heirs v. Baker, 23 111. 437, creditor who fails to prose-
cute his claim within seven years waives his right; State v. Probate Court,
40 Minn. 300, 41 N. W. 1034, application to sell, made after lapse of ten
years, held properly refused; Mooers v. A/Hiite, 6 Johns. Ch. 387, one year
after administrator has entered on the execution of his trust will, gener-
ally, be considered a reasonable time; Ward v. Barrows, 2 Ohio St. 251,
holding power given executor by will to sell land becomes legally inop-
erative, when estate is settled or all claims presumptively settled; Hall v.
Brew^er, 40 Ark. 443, as to respective rights of vendee of heir and creditor
of estate; McCoy v. Nichols, 4 How. (Miss.) 39, as to right of admin-
istrator, when twenty years have elapsed after a decree, to take steps in
relation thereto which will prejudice the interest of the heir, or persons
holding under him; Hatch v. Kelly, 63 N. H. 31, arguendo; Liddel v. Mc-
Vickar, 11 N. J. L. 56, 19 Am. Dec. 881, holding each case must, in some
measure, depend on its own circumstances; McPherson v. Cunliff, 11 Seig.
& R. 440, 14 Am. Dec. 662, in discussion of power to attack collaterally
sales of Orphans' Court; Porter v. Cocke, Peck, 47, in construction of
Tennessee statute of limitations; Hickman v. Gaither, 2 Terg. 204,
arguendo; McCoy v. Morrow, 18 111. 526, 68 Am. Dec. 581, where from
failure to prosecute claim within reasonable time, creditor was held .to
have waived lien as against purchaser from heirs.
Laches in applying for orders to sell real property of decedent to pay
debts. Note, 26 Am. St. Rep. 26.
Application of general statutes of limitation to proceeding for admin-
istration of decedents' estates. Note, 2 Ann. OaB. 778.
Entry of one heir inures to benefit of all, but one may disseise coheiiB and
liold adversely.
Approved in Morris v. Wheat, 11 App. D. C. 218, holding one tenant in
common to oust cotenant must bring home to him notice of adverse claim;
Virginia Coal & Iron Co. v. Hylton, 115 Va. 425, 79 S. E. 339, holding
possession by grantee of one tenant in common under claim of whole
estate was ouster of other cotenants; Westenf elder v. Green, 76 Fed. 928,
where guardian of certain heirs entered, claiming exclusive title in his
wards; Vaughan v. Bacon, 15 Me. 457, 88 Am. Dec. 628, holding the relin-
quishment by disseizor to one of several cotenants of all right of seisin
has the effect to put all tenants in common in seisin and possession of
their shares respectively; Bird v. Bird, 40 Me. 403, and Warfield v. lin-
dell, 38 Mo. 581, 90 Am. Dec. 449, applying rule *to possession by one
cotenant; Jackson v. Brink, 5 Cow. 484, where cotenant after acquiring
1167 RICARD V. WILLIAMS. 7 Wheat. 59-122
possession by notorious acts asserted entire estate; Clapp v. Bromagham,
9 Cow. 655, 577, where one cotenant entered claiming the whole; Caperton
V. Gregory, 11 Gratt. 508, entry by one coparcener claiming entire estate;
Hoffman v. Beard, 22 Mich. 65, Lambert v. Blumenthal, 26 Mo. 474, Clark
V. Wood, 34 N. H. 453, and La Frombois v. Jackson, 8 Cow. 619, 18 Am.
Dec. 486, arguendo; Jones v. Porter, 3 Penr. & W. 135, as to extent of
possession by^ entry under deed conveying part only.
The adverse possession of one tenant in commoi^ creation of pre-
scriptive title thereby. Note, 109 Am. St. Rep. 610.
Ouster or disseizin will not be presmned ftom mere fad of sole possession.
Cited in M'Kneely v. Terry, 61 Ark. 541, 33 S. W. 956, mere taking of
rents by one tenai^ does not show ouster of cotenants; Squires v. Clark,
17 Kan. 87, applying rule to possession of one cotenant; Edwards v.
Bishop, 4 N. Y. 64, 65, holding a tenant in common, in order to maintain
ejectment against his cotenant, must show an actual Senial of his title by
cotenant; Owen v.' Morton, 24 Cal. 376, in determining what amounts to
ouster of cotenant; Munroe v. Luke, 1 Met. 471, arguendo; Dubois vJ
Campau, 28 Mich. 318, where question was presented as to kind of pre-
sumption arising from possession by one cotenant, who gave leases and
received rents, for more than twenty years, with knowledge of cotenant.
Qualified in Oglesby v. Hollister, 76 Cal. 141, 0 Am. St Rep. 180, 18 Pac.
148, holding jury is warranted in inferring ouster from exclusive possession
by one tenant in common for great number of years, without accounting
to cotenant.
Distinguished in Parker v. Proprietors etc., 3 Met. 102, 87 Am. Dec. 125,
where one tenant in common granted whole estate, the deed of which was
recorded; and cotenants did not set up claim until after statute of limi-
tations had run; Gray v. Darby, Mart. & T. 423, where one holding under
void deed but claiming the fee was held to disseize real owner.
Ctedltors of intestate have lien on intestate's land which may be enforced
througli instrumentality of administrator acting though court of probate.
Cited in Crandall v. Gallup, 12 Conn. 374, and Davis v. Vansands, 45
Conn. 602, arguendo.
Abandonment of highway by nonuser, or otherwise than by act of
authorities. Note, 26 L. B. A.*453.
Miscellaneous. Cited in Vannice v« Dungan, 41 Ind. App. 31, 83 N. E.
251, to point that declarations of defendant's intestate as to character of
his possession was admissible in action to have deed, under which defend-
ant claimed, declared mortgage; Bond v. O'Gara, 177 Mass. 143, 58 N. E.
276, holding where one in possession under license continues in possession
after conveyance, supposing > license still in operation, he cannot claim
title by adverse possession; as to pleadings. Lull v. Davis, 1 Mich. 81, 82;
Thorpe v. Corwin, 20 N. J. L. 319, not in point; Bogardus v. Church, 4
Sand. Ch. 743, and Gibblehouse v. Stong, 3 Bawle, 452, to what point
not dear ; Duke v. Thompson, 16 Ohio, 48, not in point ; Martin v. Robinson,
y
7 Wheat, 132-163 NOTES ON U, S. REPORTS. U68
67 Tex. 380, 3 S. W. 566, and Jackson v. Astor, 1 Finn. 162, 89 Am, Doc.
294, as to power of appellate court to review proceedings of probate court ;
dissenting opinion in Oakley v. Hibbard, 1 Finn. 681; Link v, Doerfer,
42 Wis. 395, 24 Am. Rep. 420, not in point. «
7 Wheat. 121^157, 5 L. Ed. 414, BOUIiDIN ▼. MASSIE'S HEIBS.
Patent issued on military warrant, under Virginia law, is prima fade eyl-
dence tliat every prerequisite of law complied with.
Approved in Rogers v. Clark Iron Co., 104 Minn. 212, 116 N. W. 744,
holding patent from United States made out prima facie title of patentee
though it remained in land office; Bagnell v. Broderick, 13 Pet. 448, 10
L. Ed. 241, holding in action at law the patent is conclusive; People v.
Mauran, 5 Denio, 398, patent is prima facie evidence that all things pre-
liminary have been complied with.
Public officer may prove that, according to invariable practice of office,
certain official entries made could only have been made -upon production of
instrument, existence of which is subject of dispute.
Approved in State v. Mayor, 52 Md. 422, holding such proof sufficient
to show that vouchers once existed, on which it is shown payments were
made.
Assignment of land warrant may be presumed from surrounding circum-
stances.
Cited in McArthur v. Qallaher, 8 Ohio, 518, as containing discussion of
general subject ; Stark v. Smith, 5 Ohio, 457, arguendo.
When patent is issued on assignment of warrant, which is lost^ same proof
of its existence )a not required as if part of title.
Approved in Brown v. Harkins, 131 Fed. 66, 65 C. C. A. 301, determining
insufficiency of proof of record for lost record-book to justify oral evidence
of its contents in suit to recover revenue taxes illegally imposed; Harrell
V. Enterprise Sav. Bank, 183 III. 545, 56 N. E. 65, holding execution of
contents of deed could be proved by showing letter-press copy of receipt
signed by seller for part payment, and that purchaser was to execute
mortgage for balance, that mortgage was executed, paid, and purchaser
went into. possession; Edgell v. Conaway, 24 W. Va. 754, in determining
evidence necessary to show loss of destruction of a docunfent, before
secondary evidence of its contents is admissible.
Miscellaneous. Cited in Brush v. Ware, 15 Pet. 107, 10 L. Ed. 678, and
Kittridge v. Breaud, 4 Rob. (La.) 83, 89 Am. Dec. 516, to effect that patent
under Virginia law conveys legal title, but leaves equities open; Doe v,
Eslava, 9 How. 447, 18 L. Ed. 210, not in point.
7 Wheat. 158-163, 6 L. Ed. 423, WATTS v. LIKDSEY>S HEIBS.
It Is rule of e(|LUlt7, as well as of law, that party must recover on strength
of his own title.
Approved in McGuire y, Blount, 199 U. S. 144, 50 L. Ed. 128, 26 Sup. Ct.
1, City of Clevelajid v. Bigelow, 98 Fed. 247, and Staffan v. Zeust, 10 App.
1169 NOTES ON U. S. REPORTS. 7 Wheat. 164r-211
4 t
p. C. 268, all following rule ; Hogan v. Kurtz, 94 U, S. 775> 24 L. Ed. 819,
|n action of ejectment; Lake Superior Co. v. Cunningham, 44 Fed. 832,
where defendant in ejectment attacked plaintiff's title; Lingan v. Hen-
derson, 1 Bland Ch. 249, if facts stated in bill are not sufficient, com-
plaint cannot resort to extraneous matter to supply defect ; Grand Gulf
Ry. Co. V. Bryan, 8 Smedes & M. 265, where plaintiff relies on equitable
title he must show perfect equitable title; Huntington v. Allen, 44 Miss.
662, and Griffin v. Harrison, 52 Miss. 826, in action to quiet title.
What title or interest will support ejectment. Note, 18 L. B. A, 781.
Valid entry must be such that objects called for are so described or so
notofious that others, by using reasonable diligence, can readily find them. ,
Approved in McNeel v. Herold, 11 Gratt. 314, 316, following rule.
Customs and usages. Note, 18 Am. Kep. 207. ^
7 Wheat. 164-211, 6 K £d. 425, BiATTHEWS ▼. ZAKE.
No sale of public land can take place in absence of a receiver.
Cited in Groom v. Hill, 9 Mo. 325 (322), holding unavailing an application
to register and deposit of money with him in absence of receiver.
On error to State court alleging decision against title claimed under
Federal law, Supreme Court can examine only that title.
Cited in Magwire v. Tyler, 47 Mo. 126, ai^endo.
Questions considered by Federal Supreme Court in reviewing judg-
ments of State courts. Note, 68 L. E. A. 572, 574.
A statute, for commencement of operation of which no time is fixed is
operative ftom its date.
Appfoved in Bradley v. Union Bridge & Construction Co., 185 Fed. 546,
holding statute enacted under initiative took effect on day of adoption;
Rhodes V. Sargent, 17 Cal. App. 58, 118 Pac. 729, holding statute took
effect on day fixed and became operative even in localities where no knowl-
edge of it could be had; Lapeyre v. United States, 17 Wall. 198, 21 L. Ed.
608, holding act took effect from time it was officially attested by President
of United States; United States v. Chong Sam, 47 Fed. 883, to same effect;
Salmon v. Burgess, 1 Hughes, 359, Fed. Cas. 12,262, date is reckoned from
hour President's signature was affixed; Seymour v. State, 51 Ala. 54, act
licensing peddlers; McGinnis v. Egbert, 8 Colo. 51, 5 Pac. 658, act fixing
time for commencement of annual period for unpatented claims; Smets'
V. Thomas, Charlt. (Ga.) 537, and Heard v. Heard, 8 Ga. 384, statute regu-
lating procedure; Coal Co. v. Barber, 47 Kan. 30, 27 Pac. 115, holding
where statute affects an act 4on® on same day statute went into effect,
exact hour of publication may be shown; Commonwealth v. Brooks, 109
Mass. 357, applying rule to city ordinance; Ex parte De Hay, 3 S. C. 565,
to act changing bounds of judicial district; Taylor v. Brown, 1^7 U. S.
643, 87 L. Ed. 814, 13 Sup. Ct. 551, in determining from what date time
should be computed in construing act forbidding alienation of lands by-
1-74 /
7 Wheat. 212-218 NOTES ON U. S. REPORTS. 1170
Indians for period of five years; In r« Ankrim, 3 McLean, 285, Fed. Cas..
395, where question was raised whether petition for discharge in hankj
raptcy filed on day bankruptcy act was repealed was effectual; Unitea
States V. Collier, 3 Blatchf. 339, Fed. Cas. 14,833, in discussion of effect
of later acts on prior, with which it is inconsistent; The Hiawatha, Blatchf.
Pr. Cas. 5, Fed. Cas. 6461; Parkinson v. State, 14 Md. 200, 74 Am. Dec.
638; Leschi v. Washington, 1 Wash. Ter. 17, arguendo.
Distinguished in Martin v. Berry, 37 Cal. 218, and Temple v. Hayes,
Morris, 10, on ground that time was fixed by act.
Modified in Parkinson v. Brandenburg, 35 Minn. 296, 69 Am. Bep. 326,
28 N. W. 919, iiolding, in computing time when statute went into effect,
day of its passage is to be excluded.
Mificellaneous. Cited in Warren Co. V, Insurance Co., 2 Paine, 517, Fed.
Cas. 17,206, as to effect of retroactive statutes; Lewis v. Lewis, 9 Mo. 190
(189), 43 Am. Dec. 646, as to jurisdiction of State courts regarding pre-
emption of public lands. f
7 Wheat. 212-218, 6 L. Ed. 437, HOOFNAGIiE V. ANDERSON.
Patent cores any defects In preliminary steps required by law as condi-
tions precedent to its issuance.
Cited in Spencer v. Lax>sley, 20 How. 272, 16 L. Ed. 906, where irregu-
larities were alleged as to the survey ; dissenting opinion in Doolan v. Carr,
135 U. S. 636, 81 L. Ed. 851, 8 Sup. . Ct. 1237, majority holding want of
power in officer of land ofiice to issue patent may be shown in action at
law by extrinsic evidence; Noble v. Union River R. R. Co., 147 U. S. 175,
37 L. Ed. 127, 13 Sup. Ct. 274, holding conclusive the decision of Secretary
of Interior, in exercise of his power, that designated railway company
is entitled to right of way over public land; Janes v. Wilkinson, 2 Kan.
App. 369, 42 Pac. 738, holding patent erroneously issued, while voidable
by government, cannot be attacked by naked possessor of land ; Bruckner v.
Lawrence, 1 Doug. 33, where question was raised as to mistakes in survey
on which patent was based; Hammond v. St. Louis Schools, 8 Mo. 83,
where principle is applied to claim of title confirmed by Congress; Thomas
V. White, 2 Ohio St. 549, where entry and survey was irregular; White v.
Allen, 3 Or. Ill, holding objections to mode of proofs and other prelim-
inary steps are of no force after issuance of patent; Todd v. Fisher, 26
Tex. 242, to patent issued for State lan^s by commissioner of land ofSce;
Horsky v. Moran, 53 Pac. 1067, holding town-site patent could not be
collaterally attacked by holder of placer claim who had not perfected his
title; St. Louis Smelting Co. v. Green, 4 McCrary, 235, 13 Fed. 210, in
action of ejectment patent cannot be attacked collaterally; Silver Bow
Co. V. Clark, 5 Mont. 425, 5 Pac. 582, in discussion of effect of rulings
of land department where it has acted beyond its jurisdiction.
Distinguished in Chamberlain v. Marshall, 8 Fed. 409, where patent was
issued without authority of law; Lake Superior Canal Co. v. Cunningham,
44 Fed. 839, following view of majority in Doolan v. Carr, 125 U. S. 618,
1171 HOOFN AGLE v. ANDERSON. 7 Wheat. 212-218
31 L. Ed. 844; Mantle v. Noyes, 5 Mont. 294, 5 Pac. 864, where patent was
issued for lands which had previously been sold.
Bqulty will never sustain entry as against earlier patent, for government
alone can attack patent for Irregularity.
Approved in Witherspoon v. Olcott, 119 Fed. 177, holding title based on
patent issued on survey of State lands made by surveyor outside of his
district will prevail against person claiming under alleged prior patent,
where description does identify the land in controversy; Horsky v. Moran,
21 Mont. 355, 53 Pac. 1067, holding town-site patent to probate judge
in trust for the occupants, to lands covered by prior location of placer
mining claim, cannot be collaterally attacked by owner of mining claim
who never perfected his title; dissenting opinion in Doolan v. Carr, 125
U. S. 636, 31 L. Ed. 851, 8 Sup. Ct. 1237, majority permitting evidence of
want of authority in land office agent to issue patent; Horsky v. Moran,
53 Pac. 1067, holding town-site patent not attackable collaterally by holder
of placer claim who had not perfected his title.
'Eqnity considers entry as commencement of title.
Approved in United States v. Buchanan, 232 U. S. 76, 68 L. Ed. 514,
34 Sup. Ct. 237, holding entry and residence for three years gave inceptive
right which was commencement of title; Parker v. Wallace, 3 Ohio, 494,
holding rights acquired, by senior entry will be aided^ in equity against
elder patent on junior entry; Price v. Johnston, 1 Ohio St. 392, entry
made in name of deceased person is void; Stubblefield v. Boggs, 2 Ohio
St. 218, holding, by entry, an equitable esfkte of inheritance vests in
person in whose name entry is made; Talbott v. King, 6 Mont. 108, 9 Pac.
442, as authority for rule that patent is given operation by relation at
date of initiatory step.
Patent is title ftom its date, and is conclusive against all those whose
rights did not commence previous to its emanation.
Approved in United States v. Lane, 43 App. D. C. 496, following rule;
Burke v. Southern Pacific R. Co., 234 U. S. 692, 58 L. Ed. 1549, 34 Sup. Ct.
907, holding patent issued under grant of 1866 to Southern Pacific Com-
pany was conclusive on collateral attack as to nonmineral character of
land ; Bateman v. Southern Oregon Co., 217 Fed. 940, 941, 133 C. C. A. 605,
holding persons not interested in land at time it was granted to State to
,aid in construction of road could not compel State to sell lands to them
to enforce trust; Stringer v. Young, 3 Pet. 341, 7 L. Ed. 700, but appar-
ently no application; United States v. Arredondo, 6 Pet. 732, 8 L. Ed. 6*62,
application not clear; Smelting Co. v. Kemp, 104 U. S. 645, 26 L. Ed. 878,
holding patent duly executed for lands which land department was author-
ized to convey cannot be collaterally impeached in action at law; Porter
V. Robb, 7 Ohio, 210, and Decourt v. Sproul, 66 Tex. 372, 1 S. W. 339, after
patent is issued land is no longer unappropriated; M'Clung v. Hughes, 5
Rand. 471, as to when equity will afford relief against fraud in acquirii^
legal title.
7 Wheat. 218-283 NOTES ON U. S. REPORTS. U72
Distinguished in Milher y. United States, 228 Fed. 438, holding United
States could quiet title to lands, patent to which was obtained by f^aud;
Stephens v. M 'Cargo, 9 Wheat. 510, 511, 6 L. Ed. 147, 148, and Lindsey
V. Miller, 6 Pet. 677, 8 L. Ed. 542, where rights arose prior to issuance of
patent; Brush v. Ware, 15 Pet. 106, 10 L. Ed. 677, where equitable right
arose prior to issuance of patent and patentee had notice thereof.
Miscellaneous. Cited in Galloway v. Finley, 12 Pet. 298, 9 L. Ed. 1093,
not in point; Nisewanger v. Wallace, 16 Ohio, 559, to what xwint not clear;
E^mmell v. Wheeler, 22 Tex. 85, as to nature of right given Jiolder of cer-
tificate permitting him to locate certain public lands.
7 Wheat. 218-248, 6 Ii. Ed. 438, BBOWK V. JACKSON.
Decision of commisslonen under act providing indemnity to claimants to
public lands, conclusive between parties in cases within their Jurisdiction.
Cited in McConnell v. Wilcox, 1 Scam. 351, and Smiley v. Sampson, 1
Neb. 70, to decision of register and receiver of land office ; Bruckner v. Law-
rence, 1 Doug. (Mich.) 37, as to conclusiveness of patent as evidence of
title. \
Miscellaneous. Cited in Sanford v. Cloud, 17 Fla. 569, not in point.
7 Wheat. 248-283, 5 1$, Ed. 446v BLUNT v. SMITH.
Decision of court below, granting or refusing new trial, is not reviewable
on writ of error.
Approved in Yarber v. Chicago etc. Ry. Co., 235 HI. 599, 85 N. E. 932,
holding under statute exception could be taken to denial of motion for
new trial ; Pomeroy v. Bank, 1 Wall. 598, 17 L. Ed. 640, no exception lies to
overruling motion for new trial ; Ewing v. Howard, 7 Wall. 502, 19 L. Ed.
295, motion is addressed* to discretion of trial court; as authority for like
rule in State Supreme Court, State v. Hunt, 4 La. Ann. 439; State v.
Brette, 6 La. Ann. 660, Law v. Merrills, 6 Wend. 278, and Smith v. United
States, 1 Wash. Ter. 274; Stafford v. Walker, 12 Serg. & R. 196, in discus-
sion of bill of exceptions.
Modified in Welch v. County, 29 W. Va. 68, 1 S. E. 340, holding rule
that matters of discretion are not subject to review only* applies to matters
which are purely discretionary.
Distinguished in Qoldsby v. Robertson, 1 Blackf. 22, holding like rule
does not obtain in State Supreme Court.
In Tennessee, courts of law permit parties in ejectment to' go back to
original entry, and connect the patent with it.
Cited as an exception to general rule in Arnold v. Grimes, 2 G. Greene,
84, holding contra.
Approved in Kentucky Coal & Timber Dev. Co. v. Kentucky Union Co.,
214 Fed. 602, holding admissible on question of title declarations of per-
sons since deceased as to lines and landmarks of ancient private bound-
aries.
1173 THE SANTISSIMA TRINIDAD. 7 Wheat. 283-355
7 Wheat. 28S-366, 5 L. Ed. 464, THE SAITTISSIMA TBINIDAD.
Commlssioii of public ship Is conclusiye proof of her national character,
not ezaminahle tj foreign court.
Cited in State v. Crawford, 28 Fla. 492, 14 L. E. A. 259, 10 South. 124,
holding public seal proves itself .
Distinguished in United States v. Bartlett, 2 Ware (Dav.), 16 Fed. Cas.
14,532, holding opposite party is not concluded from proving falsity or
illegality of ship's -papers.
Jurisdiction of court of action against foreign sovereign or foreign
State. Note, 14 Ann. Oaa. 575.
Jurisdiction of suit against foreign sovereigiL Note, 16 L. R. A.
(N. S.) 277.
Political department having recognized belligerency of Buenos Ayres in
its struggle for independence Judiciary is bound thereby.
Approved in United States v. The Tropic Wind, 6 D. C. 355, holding
after blockade of Virginia coast was declared effective vessel captured
while running blockade was prize of war; United States v. One Hundred
Barrels, 27 Fed. Cas. 293, holding the political department alone has power
to decide the status of a State, or its inhabitants, as to a condition of hos-
tility against the Federal government; United States v. One Thousand
Bales, 27 Fed. Cas. 328, to same effect; Thomburg v. Harris, 3 Cold. 169,
in determining whether a de facto government existed in the Confederate
States ; dissenting opinion in Luther v. Borden, 7 How. 57, 12 L. Ed. 605 ;
United States v. Tropic Wind, 28 Fed. Cas. 221 ; Mosely v. Tuthill, 45 Ala.
650, 6 Am. Rep. 716, arguendo; Perkins v. Rogers, 35 Ind. 156, 9 AiQ. Rep.
664, status of a country as to peace or war is determined by the political
and not the judicial department of government; Wright v. Overall, 2<])old.
341, arguendo.
Declaratiooi by one government of determination 'to remain neutral be-
tween parties engaged in war is recognition of belligerency.
.Approved in Ex parte Toscano, 208 Fed. 944, holding two parties en-
gaged in civil war in Mexico were belligerents under law of nations, and
troops of either ooming into United States must be interned under Hague
Treaty ; Prize Cases, 2 Black, 669, 17 L. Ed. 477, to action of Great Britain
with reference to Civil War in United States; Ford v. Surget, 97 U. S.
613, 24 L. Ed. 1024, and it is not necessary that the independence of the
revolting nation be recognized; Dole v. Insurance Co., 2 Cliff. 427, Fed.
Cas. 3966, in determining whether crews of ships of one belligerent nation
should be considered pirates; Schooner Chapman, 4 Sawy. 512, Fed. Cas.
2602, holding a vessel representing Confederate States government cannot
be considered as fitted out for the commission of acts of piracy; Martin v.
Hortin, 1 Bush, 632, and Smith v. Brazelton, 1 Heisk. 58, 64, 2 Am. Rep. 684,
688, where principle is applied in determining whether Confederates were
•entitled to right of belligerents ; Miller v. United States, 11 Wall. ^307, 20
L, Ed. 145; Williams v. Bruffy, 96 U. S. 190, 24 L. Ed. 720, in discussion
of rights of belligerents; The Hiawatha, Blatchf. Pr. 10, Fed. Cas. 6451, as
7 Wheat. 283-355 NOTES ON U. S. REPORTS. 1174
to rights, in regard to neutral powers, of government engaged in war to
subdue insurrection of its own subjects; The Ambrose Light, 25 Fed. 429,
as to necessity of recognition by some established government, before
insurgents are entitled to rights of belligerents ; dissenting opinion in Price
V. Poynter, 1 Bush, 391, majority holding the capture of horses for use of
Confederate army by branch of army was a lawful exercise of belligerent
rights.
Distinguished in Ex parte McDonald, 49 Mont. 475, L. R. A. 1916B, 988,
143 Pac. 954, holding military authorities could not, on placing portion
of State under military law because in state of insurrection, suspend right
^o jury trial.
Belligerent rights.' Note, 91 Am. Dec. 280.
Where witness falsifies fact, In respect to which he cannot be presumed
liable to mistake, courts apply maxim, falsus In uno, falsus in omnibus.
Approved in The Helen W. Martin, 180 Fed. 317, Alexander v. Black-
man, 26 App. D. C. 55^, Coveney v. Conlin, 20 App. D. C. 316, Oliver ▼.
Cameron, McAr. & M. (D. C.) 248, Huber v. Teuber, 3 McAr. (D, C.) 498,
36 Am. Rep. 110, and Addis v. Rushmore, 74 N. J. L. 650, 65 Atl. 1036,
all following rule; American Telephone Co. v. People's Tel. Co., 22 Blatchf.
552, 22 Fed. 324, where witness testified falsely as to his pecuniary con-
dition; Campbell v. State, 3 Kan. 498, holding refusal to instruct jury to
this effect is error; Gillet v. Wimer, 23 Mo. 79, whenever testimony calls
for such instruction, the court ought to give it; Paulette v. Brown, 40 Mo.
57, to same effect; Dell v. Oppenheimer, 9 Neb. 457, 4 N. W. 53, where
witness testified falsely as to rate of interest charged on loan made by
him; Stoffer v. State, 15 Ohio St. 56, 86 Am. Dec. 477, holding, under
such circumstances, court should instruct jury to reject entire testimony
of "V^tness so testifying; Skipper v. State, 59 Ga. 65, following rule; Cal-
lanan v. Shaw, 24 Iowa, 447, but maxim is applied only where witness
willfully and knowingly gives false testimony ; to same effect in Decfring ▼.
Metcalf, 74 N. Y. 506; People v. Chapleau, 121 N. Y. 276, 24 N. B. 472,
arguendo. •
Modified in Moore v. Jones, 13 Ala. 304, application of rule should be
made by jury; Lehman v. Marshall, 47 Ala. 377, province of determining
credibility of a witness rests with jury; State v. Williams, 2 Jones (N. C),
268, in common-law trial maxim is to be applied by jury, and is not rule
by which judge may withdraw testimony from their consideration ; to same
effect in Mead v. McGraw, 19 Ohio St. 64; State v. Sexton, 10 S. D. 131,
but held that maxim is inapplicable in absence of any motive or intent to
deceive.
Distinguished in Buffalo County v. Van Sickle, 16 Neb. 368, 20 N. W.
263, on ground that false statement of witness was not knowingly and
willfully false; also in Pease v. Smith, 61 N. Y. 484, on same ground.
Disregard by jury of uncontradicted and unimpeached witness. Note,
81 Am. Dec. 270.
v
1175 THE SANTISSIMA TRINIDAD. 7 Wheat. 283-^55
Sending of armed vessela, or of munitlona of war, ftom neutral to bel-
ligerent port, 18 not contrary to law.
Approved ^ Northern Pac. Ry. Co. v. American Trading Co., 195 U. S.
465, 49 L. Ed. 281, 25 Sup. Ct. 84, nonperf o^-mance of agreement by carrier •
to forward through shipment by steamer of connecting carrier sailing on
certain day not excused by refusal of port collector to grant clearance
because freight was contraband of war; Balfour, Guthrie & Co. v. Port-
land etc. S. S. Co., 167 Fed. 1018, holding neutral could lawfully contract
to carry contraband of war and courts of neutral nation would enforce
contract; Pearson y« Parson, 108 Fed. 463, holding courts will not take
cognizance of suit by private party to enjoin shipment of munitions of war
from port of United States to one of two belligerent nations ; The City of
Mexico, 24 Fed. 41, sending of munitions of war from neutral port to
port of belligerent is a commercial enterprise and is not a violation of
neutrality laws; The Carondelet, 37 Fed. 802, to same effect; dissenting
opinion in Hart v. United States, 84 Fed. 805, 55 U. S. App. 498, majority
holding one who furnished transportation for military expedition against
Spanish government in Cuba, violated neutrality laws; The Laurada, 85
Fed. 769, and Briggs v. Light Boats, 11 Allen, 185, arguendo.
Denied in The Meteor, 17 Fed. Cas. 198, where it is stated the above rule
was mere dietum; The Itata, 56 Fed. 509, 15 U. S. App. 1, construing Re-
vised Statutes, section 5283, abrogating the rule of the princi}>al case.
Quaere, whether citizen of United States, Independent of legislation, can
tlirow off Ills allegiance. v
Cited in Shanks v. Dupont, 3 Pet. 267, 7 L. Ed. 670, Comitis v. Parkerson,
56 Fed. 558, 22 L. B. A. 160, 151, and Beavers v. Smith, 11 Ala., 29,
arguendo.
Exemption of pnbUc property of one sovereign from local Jurisdiction of
another rests upon public comity.
Approved in Johnson Lighterage Co. No. 24, 231 Fed. 368, holding prop-
erty of foreign government destined to public use subject to same action for
salvage as property of United States; dissenting opinion in Tucker ▼•
Alexandorff, 183 U. S. 457, 46 L. Ed. 278, 22 Sup. Ct. 208, majority holding
vessel which has been launched but uncompleted, built for Russian govern-
ment under treaty of 1832, is a Russian vessel, and deserters may be
arrested and surrendered; Walley v. Schooner Liberty, 12 La. 101, 32 Am.
Dec. 115, arguendo.
Distinguished in Oyster Steamers, 31 Fed. 766, no considerations of
comity between State and Federal governments prevents latter frofta enforc-
ing laws of Congress.
Effect of carriage of contraband upon marine insurance. Note, 5
B. B. 0. 61.
Miscellaneous. Cited in The Siren, 7 Wall. 161, 10 L. Ed. 138, for what
point is not clear ; Ford v. Surget, 97 U. S. 611, 24 L. Ed. 1023, as to right
of belligerent nation to establish blockade; The Florida, 101 U. S. 42, 25
L. Ed. 899, as involving a discussion of the rights of neutrals; In re Fassett,
/
7 Wheat. 356-452 NOTES ON U. S. REPORTS. 1176
142 U.S. 485, 35 L. Ed. 1089, 12 Sup. Ct. 298, a^d The Pizarro, 19 Fed.
Cas. 788, as to jurisdiction of District Court in cases of marine tort.
Cited in Amy Warwick, 2 Sprague, 133, Fed. Cas. 341, not<n point; The
S. L. Davis, 6 Blatchf:^139, Fed. Cas. 12,939, as containing discussion of
principles of admiralty law; United States v. One Hundred Packages, 27
Fed. Cas. 286, not in point; IngersoU v. Camphell, 46 Ala. 286, as to right
of government to blockade its own ports. Erroneously cited in E[ill v.
Boyland, 40 Miss. 630.
7 Wbeat. 356-452, 5 L. Ed. 472, EVANS V. EATON.
A person bavlng an interest only In the question, and not In the event of
the suit, is a competent witness.
Approved in dissentJhg opinion in Burton y. United States, 202 U. S. 393,
50 L. Ed. 1076, 26 Sup. Ct. 688, majority holding fraud order inquiry
pending before postal department is proceeding in which United States is
directly or indirectly interested, within Rev. Stats., § 1782 ; Bork v. Norton,
2 McLean, 425, Fed. Cas. 1659, holding consignee. of goods, who has de-
livered them over without payment of freight is a competent witness in a
suit by the master of the vessel against the owner of the goods; Fuller v.
Rounceville, 31 N. H. 518, holding in action of trespass de bonis, the mort-
gagee is a competent witness for defendant; Runey v. Thompson, 1 Finn.
5Qf , in action of replevin if defendant pleads property in third person,
such person is competent witness to sustain the plea.
Depositions, to he e;vldence in TTnited States courts, most he taken accord-
ing to laws of United States and rules. of their courts.
Cited in discussion of use of depositions as evidence in Bowman v. San-
born, 26 N. H. 103.
Where appeal is taken on ground of error in charge^ appellate eouit will
examine substance of charge only.
Cited in Phoenix Ins. Co. v. Raddin, 120 tJ. S. 193,^^0 L. Ed. 648, 7 Sup.
Ct. 504, bill of exceptions should contain only matter of law excepted to;
Oliver v. Phelps, 20 N. J. L. 184, 195, 199, where plaintiff spread whole
charge on record, and then assigned seventeen errors on different causes, all
this without having called attention of court below to supposed errors;
Carver v. Jackson, 4 Pet. 81, 7 L. Ed. 789, where court ^sapproves of
practice of spreading the charge in extenso on record; Bradstreet v. Brad-
street, 64 Me. 210, and Harriman v. Sanger, 67 Me. 445, condemning
practice H)f reporting wl\ole charge in bill of exceptions; Burt v. Insurance
Co., 115 Mass. 16, bill of exceptions should set forth only the points of law
raised at the trial; Nutting v. Herbert, 37 N» H. 355, Gibbs v. Cannon, 9
Serg. & R. 202, 11 Am. Dec. 702, and Stafford v. Walker, 12 Seig. & R.
196, arguendo.
Limitation of patent on improvement.
Cited in Whitney v. Emmett, 1 Bald. 312, 314, Fed. Cas. 17,585, as to
distinction between patent on machine and patent on improvement.
1177 EVANS V. EATON, 7 Wheat. 356-462
If patent include more tlum patentee's invention it cannot be supported.
Approved in Wheeler v. James, 189 Fed. 902, holding claim in specifica-
tions invalid as broader than actual invention disclosed; Wyeth v. Stone,
I Story, 286, Fed. Cas. 18,107, where patentee claimed exclusive title to
art of cutting ice by means of any power other than human ; Hoyey v.
Stevens, 3 Wood. & M. 23, Fed. Cas. 6746, where specifications did noi state
clearly what part of machine was new invention; Stanley etc. Co. v. Davis,
22 Fed. Cas. 1054, rejecting patent claim because too broad and not
definitely disting^shable.
Application for patent must contain specifications of invention in fuHt
clear and distinct terms.
Approved in Ward Baking Co. v. Weber Bros., 230 Fed. 243, holding
description did not mix new invention with old so as to invalidate patent ;
Jacobs Mfg. Co. v. T. R. Almond Mfg. Co., 177 Fed. 936, 101 C. C. A. 215,
holding specifications insufficient hi indicating how much of device was old
and how much new; Hogg v. Emerson, 6 How. 485, 12 L. Ed. 525i but where
patent is sought for improvement to machine, applicant need not describe
particularly and disclaim all the old parts; Broods v. Jenkins, 3 McLean,
444, Fed. Cas. 1953, where from sx>ecifications no one could tell what hiad
been invented; Webster Loom Co. v. Higgins, 15 Blatchf. 455, Fed. Cas.
17,342, where patent was held invalid because of insufficiency of specifica-
tions ; Cross v. Huntly, 13 Wend. 386, 387, holding, where patent does not
describe improvement, so that it may be known in what improvement con-
sists, the defect may be taken advantage of in action on note given for
right to vend such improvement ; Brooks v. Fiske, 15 How. 215, 14 L. Ed.
667, as to reason for rule; Sawyer v. Miller^ 4 Woods, 474, 12 Fed. 727,
arguendo.
Specifications for patent must distinguish old from new. Note, 81 Am.
Dec. 205.
« Sufficiency of specification for patent. Note, 20 E. B. 0. 270.
Bight to patent for application of old mechanical process or con-
trivance to analogous purpose. Note, 20 E. B. 0. 128.
Miscellaneous. Cited in United States v. Duell, 17 App. D. C. 578,
to 'point that Congress has plenary power over subject of patents and
proceedings for obtaining them. Referred to generally in Evans v. Het-
tich, 7 Wheat. 468, 469, 470, 5 L. Ed. 500, an action for infringement of
same patent. Cited erroneously in Garrard v. Reynolds, 4 How. 127,
II L. Ed. 905; also. Smith v. Kernochen, 7 How. 219, 12 L. Ed. 675, and
Green v. Neal, 6 Pet. 297, 8 L. Ed. 405. Cited generally as bearing on
questions in patent law in Whitney v. Emmett, 1 Bald. 315, 321, 322, Fed.
Cas. 17,585, Blanchard v. Sprague, 2 Story, 171, s. c, 3 Sumn. 541, Fed.
Cas. 1518, as to constitutionality of grants of patents by Congress. Cited
erroneously in In re Josephine, 39 N. Y. 27.
7 Wlieat. 463-489 NOTES ON U. S. REPORTS. U78
7 Wheat. 45S-470, 6 L. Ed. 496, EVA17B ▼. HETTIOH.
Where deposition once read in evidence wltbont opposition, it cannot be
afterward objected to as being irregularly taken.
Approved in Eldridge v. Compton, 30 Okl. 172, Ann. Oas. 1913B, 1058,
119 Pac. 1121, holding where deposition was read without objection on
first trial, technical objection to it could not be raised on second trial;
Locke V. Farley, 41 Mich. 407, 1 N. W. 957, where irregular affidavit
yras introduced without objection; Williams v. Thomas, 3 N. M. 395, 9
Pac. 358, objection to evidence cannot be made for first time in appellate
court; Indianapolis Water Co. v. American Co., 65 Fed. 536, arguendo.
Fact that witness is subject to fits of derangement is no objection either
to his competency or credibility, if sane when testifying.
Cited in Campbell v. State, 23 Ala. 74, where court excluded from jury
such evidence; Bell v. Itinner, 16 Ohio, St. 49, the credibility of a compe-
tent witness cannot be impeached by testimony of other witnesses that
such witness is not possessed of ordinary intelligence; Coleman v. Com-
monwealth, 25 Gratt. 876, 18 Am. Rep. 718, fact that principal witness for
State was derailed a few days prior and shortly subsequent to trial is
not sufficient ground for granting new trial; State v. Hayward, 62 Minn.
493, 65 N. W. 68, where distinction between insanity as a direct issue
and as a collateral issue noted.
Distinguished in Holcomb v. Holcomb, 28 Conn. 180, where evidence was
introduced to show witness was insane at time transaction occurred about
which he testified; White v. State, 52 Miss. 223, where witness was exam-
ined to ascertain whether he was compos mentis.
Admissibility of evidence of insane witness. Note, 28 Am. St. Rep.
942, 943.
Competency of insane person as witness. Note, Ann. Oas. 1913E,
324.
Effect of insanity on competency of witness. Note, 87 L. B. A. 428.
Miscellaneous. Cited in Whitney v. Emmett, 1 Bald. 315, Fed. Cas.
17,585, as to extent of description required of article for which patent is
sought; Blanchard v. Sprague, 2 Story, 171, 3 Sumn. 541, Fed, Cas. 1518,
as to power of Congress to grant a patent.
7 Wheat. 471-489, 6 L. Ed. 601, THE GRAN PA&A.
Prizes made by armed vessels which have violated statutes for preserving
neutrality will be restored if brought into our ports.
Cited in The Elmira, 16 Fed. 137, arguendo.
Miscellaneous. Cited in The Gran Para, 10 Wheat. 498, 6 L. Ed. 875,
another hearing in same cause. Erroneously in Pelton v. Platner, 13 Ohio,
217, 42 Am. Dec. 199, and United States v. Cement, 27 Fed. Cas. 297.
The Meteor, 17 Fed. Cas. 199, for view of Supreme Court as to what
constitutes a commercial adventure.
1179 NOTES ON U. S. REPORTS. 7 Wheat. 490-529
7 Wbeat. 490-496, 5 L. Ed. 606, THE 8ANTA MABIA.
Bestltntlott will be required where captures are made in violation of neu-
trality laws.
Cited in The Schooner Tilton, 5 Mason, 471, Fed. Gas. 14,054, in dis-
cussion of jurisdiction and power of courts of admiralty.
7 Wheat. 496-519, 5 L. Ed. 607, THE ABBOGANTE BABOELOKES.
Not cited.
I
7 Wheat. 620-622, 6 L. Ed. 613, THif MONTE ALLEGBE.
When captures have been made in violation of our neutrality, restitution
will be decreed.
Cited in The Monte Allegro, 9 Wheat 641, 6 L. Ed. 180, for fact that
restitution in this case had been decreed.
7 Wheat. 622-629, 6 K Ed. 613, OBOCEET v. LEE.
Decree must conform to allegations as well as proofs.
Approved in Maiden & Melrose Gaslight Co. v. Chandler, 209 Mass. 358,
95 N. E. 792, holding in action to recover from officer of corporation profit
illegally made by him in buying land for corporation, court was not re-
stricted to price paid vendor, but could find all facts and grant relief
accordingly; Land v. Cowan, 19 Ala. 300, where remainderman complained
of trespass on tenant for life without showing injury to his remainder;
Trapnall v. Byrd, 22 Ark. 17, where decree was set aside because allega-
tions did not sustain same; St. Andrews Bay Co. v. Campbell, 5 Fla. 565,
where proof sustained decree but allegations did not; Phelan v. Phelan,
12 Fla. 453, where bill did not set forth prima facie cause for divorce;
Hyer v. Caro, 17 Fla. 354, holding decree too broad which allowed com-
plainant for sums which vessel might have earned, when prayer in bill
' asked only for account of "sums earned''; West v. McCarthy, 4 Blackf.
246, reversing decree founded on a finding of fraud when none was alleged
in bill; Potomac Mfg. Co. v^ Evans, 84 Va. 722, 6 S. E. 4, holding decree
erroneous which ordered sale of trust property, when pleading showed suit
was barred; Livingston v. Hayes, 43 Mich. 134, 5 N. W. 82, and Miller v.
Finn, 1 Neb. 296, complainant cannot go to answer for facts he did not
place in issue; Hawthorn v. Smith, 3 Nev. 192, holding, where complaint
omits material allegations but these are admitted in answer, the answer
will be held to aid complaint and sustain action.
Evidence will not be admitted to prove facts not put in issue by pleadings.
Approved in Pacific Mail S. S. Co. v. Waimanalo Sugar Co., 181 Fed.
928, 104 C. C. A. 365, holding salvage not pleaded could not be proved;
Thomas v. Winnie, 122 Fed. 399, holding where petition for habeas corpus
alleges that person whose release is sought is under twenty-one years of
age and enlisted in the army without parent's consent, no issue of intoxi-
cation is presented; Union Cent. Life Ins. Co. v. Phillips, 102 Fed. 27,
holding where variance between evidence and bill filed in District Court
necessitates an amendment to support decree, the Circuit Court will re-
verse it and remand it for amendment and further proceedings; Baker ▼.
i
7 Wheat. 530-633 NOTES ON U. S. REPORTS. 1180
Nachtrieb, 19 How. 130, 15 L. Ed. 531, holding a receipt and settlement
will be held conclusive when validity of same is not impeached in plead-
ing; Jones V. Morehead, 1 Wall. 165, 17 L. Ed. 664, where court refused
evidence to disprove fact, which fact was not denied in answer; Bradley
V. Converse, 4 Cliff. 373, Fed. Cas. 1775, holding relief cannot be granted
for matters not charged; Conway v. Ellison, 14 Ark. 363, where complain-
ant sought to introduce evidence to show fraud, not having alleged same;
Robson v. Harwell, 6 Ga. 599, recovery cannot be had on gi'ound of fraud
where fraud is not distinctly alleged in bjU; Helm v. Cantrell, 59 111. 530,
• where evidence of admissions to show ratification was denied, when bill
did not show such evidence would be relied on ; Singleton v. Scott, 11 Iowa,
596, in case such evidence is admitted it should not be considered by the
court even if there be no objection; Le Baron v. Shepherd, 31 Mich. 275,
refusing evidence to show excuse for nonperformance of a condition, when
no excuse was alleged; Fei^ison v. Ferguson, 2 N. Y. 361, 362, holding
facts tending to show breach of a condition happening subsequent to filing
of suit are noK^dmissible, and counsel may presume court will not con-
sider such evidence; Kelsey v. Western, 2 N. Y. 506, applying principle to
defendant's answer; Wren v. Moncure, 95 Va. 375, 28 S. E. 590, fraudulent
representations not relied on in pleadings cannot be set up in evidence;
Wiggins Ferry Co. v. 0. & M. R;^. Co., 142 U. S. 413, 35 L. Ed. 1062, 12
Sup. Ct. 193, but in case equitable claim is shown, the Supreme Court may
remand case for amendment of pleadings; McEanley v. Irvine, 13 Ala. 694,
Hauf V. Whittington, 42 Ark. 494, and Patton v. McClure, Mart. & Y. 352,
arguendo.
Criticised in Bradley Co. v. Eagle Co., 58 Fed. 721, 18 U. S. App. 455,
so far as it permits this objection to be taken for first time in appellate
court.
Miscellaneous. Cited in Ratliff v. Sommers, 55 W. Va. 37, 46 S. E. 715,
as to right to amend pleadings; erroneously in Willison v. Watkins, 3 Pet.
64, 7 L. Ed. 600; Burdsall v. Wagoner, 4 Colo. 259.
7 Wlieat. 530-533, 5 L. Ed.^515, MAOEEB v. THOBCAS.
In real actions, death of ancestor before appearing abates suit.
Cited as common-law rule in Gould v. Carr, 3^ Fla. 537, 24 L. R. A. 136,
15 South. 264, and Hoffman v. St. Clair, 40 Mich. 352, where it is applied.
Approved in In re Connaway, Receiver of Moscow Nat. Bank, 178 U. S.
434, 44 L. Ed. 1139, 20 Sup. Ct. 956, holding that executor or administrator
of defendant may be made party by scire facias ; United States v. Bullard,
103 Fed. 257, holding administrator of oner of several joint contracting
parties cannot be jointly sued with survivors, either at common law or in
Alabama.
Modified in Warren v. Furstenheim, 35 Fed. 695, 1 L. R. A. 42, Federal
courts will be governed by local law on subject.
Distinguished in Melius v. Thompson, 1 Cliff. 129, Fed. Cas. 9405, on
account of difference between rules in law and in equity.
f
1181 COLUMBIA INS. CO. v. WHEELRIGHT. 7 Wheat. 534-535
Exceptions to mllngs of court are necessary when the error would not
otherwise appear on the record.
Approved in Welch v. Lynch, 30 App. D. C. 137, and Nalle v. Oyster,
230 U. S. 177, 57 L. Ed. 1444, 33 Sup. Ct. 1043, both holding error apparent
on record assignable as ground for reversal though no exception taken;
Dunbar v. Hollinshead, 10 Wis. 507, holding exceptions unnecessary to
review proceedings on appeal from an order; Dorman v. Richards, 1 Fla.
296, following rule.
If, in real action, ancestor die before appearing and heirs are made parties
by order and allow default to be taken, they may sue out writ of error.
Approved in Shute v. Patterson, 147 Fed, 512, where alleged yivolun-
tary bankrupt died after filing of petition, but before service of process,
heirs and pei-sonal representatives should be brought in and made parties
to proceeding before adjudication.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 855.
7 Wheat. 584-^35, 5 L. Ed. 516, COLUMBIA INS. CO. v? WHEELBIOHT.
Error lies ftom Supreme Court upon judgment of Circuit Court for District
of Columbia, awarding peremptory mandamus.
Approved in United States v. Louisville etc. R. Co., 236 U. S. 323, 69
L. Ed. 602, 35 Sup. Ct. 363, holding denial of writ by District Court review-
able only on writ of error; Carter Co. v. Schmalstig, 127 Fed. 127, holding
order directing issuance of mandamus against county to compel tax levy
to pay judgment recovered against it is reviewable by writ of error and
not by appeal; United States v. Addison, 22 How. 184, 16 L. Ed. 306, to
judgment of ouster from office; Muhlenberg v. Dyer, 65 Fed. 635, 31 U. S.
App. 109, holding such judgment can be reviewed in Circuit Court of
Appeals only on writ of error and not by appeal; Holmes v. Jennison, 14
Pet. 565, 566, 10 L. Ed. 592, discussing question as to whether error lies to
decision of State court on habeas corpus; Decatur v. Paulding, 14 Pet. 607,
10 L. Ed. 614, as to jurisdiction to issue writ of review decision of State
court in habeas corpus proceedings. United States v. Insurance Co., 2 Cr.
C. C. 273, Fed. Cas. 14,840, arguendo; dissenting opinion in Hammond v.
People, 32 111. 465, majority holding writ of error did not lie at common
law to review judgment awarding or denying peremptory mandamus; dis-
senting opinion in Kendall v. United States, 12 Pet. 640, 641, 9 L. Ed. 1227,
but holding this judgment cannot be considered as authority for holding
Circuil Court had jurisdiction to issue mandamus ; contra, majority opinion,
p. 618, 9 L. Ed. 1218.
Miscellaneous. Cited in Smith v. Whitney, 116 U. S. 173, 29 L. Ed. 603,
6 Sup. Ct. 573, South Carolina v. Seymour, 153 U. S. 357, 358, 38 L. Ed.
744, 14 Sup. Ct. 873, and Smith v. Adams, 130 U. S. 176, 32 L. Ed. 898,
9 Sup. Ct. 569, as to amount in dispute necessary to give Supreme Court
jurisdiction; Dryden v. Swinbum, 15 W. Va. 249, as to mode of ascertain-
ing value of a salaried of&ce.
7 Wheat. 635-661 NOTES ON U. S. REPORTS, U82
7 Wheat. 535-551, 5 L. Ed. 516, BUOHT'S LESSEE v. BdCHESTEB.
Brltiflh snbjecte bom before, as well as after, Eevolutloii are incapable
of Inheriting or transmitting Inheritance of lands in this country.
. Approved in In re Colbert's Estate, 44 Mont. 266, 119 Pac. 793, holding
alien could inherit only on conditions imposed by legislature; Montgomery
V. Dorion, 7 N. H. 480, as authority for holding aliens cannot take by
descent; Orser v. Hoag, 3 Hill, 85, following mle; Inglis v. Snug Harbor,
3 Pe^;. 122, 7 L. Ed. 626, and Orser v. Hoag, 3 Hill, 82, as to who are citi-
zens and who aliens ; Pollard v. Kibbe, 14 Pet. 413, 10 L. Ed. 519, aiguendo ;
Crane v. Reeder, 21 Mich. 73, 4 Am. Bep. 441, as to power of aliens to
inherit or transmit by inheritance.
Effect of treaties on alien's right to inherit. Note, S2 L. B. A. 180.
Alien's right to inherit. Note, 31 L. B. A. 177.
Where British subject came here after treaty of 1783, and died, seised
of land, before treaty of 1794 went into effect, title of his heirs was not pro-
tected by those treaties.
Cited, arguendo, in construction of treaty of 1794, in Crane ▼. Reeder,
21 Mich. 66, 4 Am. &ep. 438, and Williams v. Wilson, Mart. & T. 253, 254.
Distinguished in Brown v. Sprague, 5 Denio, 549, 550, where British
subject came into the country and acquired land prior to treaty of 1783,
and died in 1789.
Oitizenship nnder some circumstances may be presumed.
Cited in Boyd v. Thayet, 143 U. S. 181, 36 L. Ed. 116, 12 Sup. Ct 389,
holding jury may infer naturalization from evidence that person has neces-
sary qualifications to become a citizen and has for a long time exercised
the right of citizenship; Dryden v. Swinbum, 20 W. Va. 121, 125, holding
citizenship will not be presumed when the records of the only court by
which he could be adjudged a citizen show that he has not been so admitted.
In favor of long possession, and strong apparent equity, much may be
presumed.
Cited in Sessions v. Reynolds, 7 Smedes & M. 159, holding where release
of title was thirty-five years old it will be presumed it was operative at
time of its execution.
Lessee cannot deny his lessor's title.
Approved in Fitchett v. Henley, 31 Nev. 337, 104 Pac. 1064, following
rule ; Johnson v. Riddle, 240 U. S. 480, 60 L. Ed. 758, 36 Sup. Ct. 397, hold-
ing tenant could show landlord's title had expired by operation of law;
H. K. Porter Co. v. Boyd, 171 Fed. 309, 96 C. C. A. 197, holding bailee
estopped to deny bailor's title; Wallace v. Ocean Grove etc. Assn., 148 Fed.
673, tenant who paid rent under lease up to notice terminating lease can-
not deny landlord's title in ejectment, though he was in possession prior
to lease ; Hagar v. Wikoff, 2 Okl. 584, 588i, 39 Pac. 282, 283, one going into
possession of town lot on public lands ak tenant of one who has erected
building cannot assert adverse claim until possession surrendered; Rector
1183 BLIGHT'S LESSEE v. ROCHESTER. 7 Wheat. 635-651
y. Gibbon^ 111 U. S. 284, 28 L. Ed. 430» 4 Sup. Ct. 608, where assignee of
lessee sought to deny lessor's title; Hackett v. Marmet Co., 52 Fed. 273,
8 U. S. App. 149, facts showing the relation of landlord and tenant existed ;
Ramires v. Kent Bartell, 2 Cal. 560, where tenant in action for rent denied
landlord 's title ; McLean v. Spratt, 20 Fla. 618, where, in action for unlaw-
ful detainer, tenant attacked his landlord's title; Funk v. Kincaid, 5 Md.
409, where, in action of ejectment, brought by grantee of reversion, defend-
ant attempted to deny right if his lessor to mak<e lease ;' Outtoun v. Dulin,
72 Md. 539, 20 Atl. 136, lessee cannot defeat action for rent by showing
lessor did not have title to all ground described in lease; Hagar v. Wikoff,
2 Okl. 684, 688, 39 Pac. 282, 283, person wh(t goes into possession of town
lot on public lands as tenant of one who has improved lot by erecting a
building thereon, will not be heard to assert a claim adverse to his land-
lord ; Whaley v. Whaley, 1 Spear, 232, 40 Am. Dec. 595, applying rule to
tenant by sufferance ; Greeno v. Munson, 9 Vt. 39, 31 Am. Dec. 606, apply-
ing principle to one entering into possession under contract to purchase;
also, to same effect, Ripley v. Yale, 19 Vt, 163, Bishop v. Gibbon, 158 U. S.
170, 39 L. Ed. 937, 15 Sup. Ct. 785, arguendo; Bowman v. Wathen, 2
McLean, 399, Fed. Cas. 1740, as to what denial by trustee of title of cestui
>que trust puts statute of limitations in operation; Hanfoi^ v. Fitch, 41
Conn. 501, as bearing on question as to what acts by tenant are sufficient
to warrant jury in finding a surrender of the tenancy to the landlord and
an ouster afterward; Duke v. Harper, '6 Yerg. 285, 27 Am. Doc. 464, in dis-
cussion of what acts by tenant constitute ouster of landlord. ,
Distinguished in Comptograph Co. v. Burroughs Adding Mach. Co., 183
Fed. 326, 37 L. B. A. (N. S.) 821, 106 C. C. A. 533, where licensee of patent
pending suit by another for its infringement, joined in attacking its
validity, he did not repudiate contract of license; Willison v. Watkins,
3 Pet. 47, 7 L. Ed. 598, and Tillotson v. Kennedy, 5 Ala. 410, 39 Am. Dec.
381, if possession of tenant becomes adverse to landlord for period of
statute of limitations, he may then deny landlord's title; Merrick v. Hutt,
16 Ark. 342, where one against whom rule was invoked was held not to
occupy the position of a tenant; Wiggin v. Wiggin, 58 N. H. 237, where
tenant had accepted lease under entire misapprehension of its purport.
Estoppel of tenant to deny landlord 's title. Note, 15 E. B. 0. 304.
Vendee has right to fortify title by purchase of any other which may
Xnrotect him in quiet enjoyment.
Approved in Nashville etc. Ry. Co. v. Proctor, 160 Ala. 463, 49 South.
378, applying rule where vendee was already in possession claiming land as
his own; Converse v. Ringer, 6 Tex. Civ. App. 69, 24 S. W. 708, holding
one in possession without title may strengthen his title by buying in a tax
title without abandoning his advantage from possession under statute of
limitations; Neher v. Armijo, 54 Pac. 240, sustaining title of grantee of
certain tenants in common against the other cotenant after lapse of stat-
utory time.
Conveyance recorded before grantor obtained title, as notice. Note,
23 L. B. A. 665.
7 Wheat. 535^51 NOTES ON U. S. ,REPORTfe. 1184
Vendor has no conttnning interest In maintenance of title, unless covenant
in Ills deed requires it.
Approved in NAer v. Armijo, 9 N. M. 338, 54 Pac, 240, holding grantor
may acquire title against grantee by adverse possession; Jones v. Madison
County, 72 Miss. 808, 18 South. 94, Neher v. Armijo, 54 Pac. 240, arguendo.
Vendee is not estopped from denying bis vendor's title, especi^y when
former did not receive possession from latter.
Approved in Western Union Tel. Co. v. Penn. R. Co., 120 Fed. 381, hold-
ing telegraph company which for more than twenty years has occupied
and used part of right of way of railroad under lease and paid monthly
rental is estopped by relation of landlord and tenant to deny railroad's r^ht
to re-enter and take possession; Davis v. Denham, 145 Ala. 251, 40 South.
278, holding where deed was taken from one who was not owner, and deed
from true owner was subsequently obtained, purchaser was not estopped
to set up title obtained from owner; Cassin v. Nicholson, 154 Cal. 506,
98 Pac. 194, holding where contract of purchase was executed, vendee could
assert adverse possession against vendor; Van Gilder v. Bullen, 159 N. C.
297, 74 S. E. 1061, holding where life tenant gave mortgage on property,
and conveyed it by warranty deed, and his vendee required remainder, raorl^
gagee could not foreclose after death of life tenant ; John L. Roper Lumber
Co. V. Richmond Cedar Works, 168 p. C. 347, 84 S. E. 525, holding one in
possession under color 6f title could acquire outstanding title without
breaking adverse nature of holding under first title; Weston v. John L.
Roper Lumber Co., 162 N; C. 172, Ann. Cas. 1915A, 931, 77 S. E. 432,
holding judgment of partition where title was not adjudicated did not
estop grantee of land allotted to one party from denying title of another
paity to different part of land; Illinois Steel Co. v. Budzisz, 139 Wis.
329, 121 N. W. 365, holding grantee of tenant who claimed openly as owner
held iBidversely to landlord; Society for Propagation etc. v. Pawlet, 4 Pet.
507, 7 L. Ed. 936, vendee derives title from vendor, but such title, although
derivative, is adverse; Bradstreet v. Huntington, 5 Pet. 439, 8 L. Ed. 184,
where vendee of tenant in common set up title to whole ; Hughes v. Clarks-
ville, 6 Pet. 384, 8 L. Ed. 436, where defendant was in possession under an
agreement which was intended as a conveyance of title; Boone v. Chiles,
10 Pet. 224, 225, 226, 9 L. Ed. 405, 406, where plaintiff, vendor, sought to
violate contract of purchase and eject vendee; Clymer v. Dawkins, 3 How.
690, 11 L. Ed. 786, where vendee of tenant in common claimed entire estate
and possessed it in entirety for period of statute of limitations ; Robertson
V. Pickrell, 109 U. S. 614, 27 L. Ed. 1051, 3 Sup. Ct. 411, where defendant
holding under deed of a life estate was not estopped from setting up a
superior title; Bybee v. 0. & C. Ry. Co., 139 U. S. 682, 85 L. Ed. 309, 11
Sup. Ct. 645 (affirming s. c, 11 Sawy. 486, 26 Fed. 591), holding grantee,
who had entered into deed under misapprehension of his legal rights, is not
estopped from denying his grantors' title; Elder v. McClaskey, 70 Fed.
547, 37 U. S. App. 1, where vendee forfeited his title by purchase of pre-
tended titles derived from his remote grantor; San Francisco v. Lawton,
18 Cal. 476, 79 Am. Dec. 191, holding, after execution of conveyance the
grantee holds the property for himself, and there is no relation existing
1186 BLIGHT'S LESSEE v. ROCHESTER. 7 Wheat. 536^51
between him" and the grantor; Wenzel v. Schnltz, 100 Cal. 225, 34 Pad 698,
and Robinson v. Thornton, 102 Cal. 683, 34 Pac. 122, grantee in fee may
treat his grantor as an ntter stranger to the title; Green v. Dietrich, 114
111. 643, 3 N. E. 803, where vendee having purchased outstanding superior
title denied that of vendor; King v. Carmichael, 136 Ind. 27, 43 Am. St.
Rep. 308, 35 N. E. 512, affirming that vendee's title is adverse to that of
vendor, and collecting authorities; Fox v. Widgery, 4 Me. 218, holding, if
disseizor takes release from disseizee of all his interest, no relations arise
between them; Sands v. Davis, 40 Mich. 19, no tenurial relations exist be-
tween grantee of tenant in common who claimed in severalty, and other
tenants; Macklot v. Dubreuil, 9 Mo. 484, 43 Am. Dec. 553, where vendee
denied vendor's title and established his by adverse possession; Vasquez
V. Ewing, 24 Mo. 39, 66 Am. Dec. 697, cotenant in possession is not estopped
from denying title of his cotenant, when he came into possession through
deed from another cotenant against whom he held judgment for possession ;
Price V. Johnson, 1 Ohio St. 399, purchaser under void decree for sale of
lands in the Virginia military district, is not estopped from averring that
the entry and survey are void; Coakley v. Perry, 3 Ohio St. 346, and
Gardner v. Green, 5 R. I. 110, and Whitmire v. Wright, 22 S. C. 452, 53
Am. Rep. 728, holding, in case of petition for dower, grantee of husband
is not estopped; Hill v. Robertson, 1 Strob. 2, 3, vendee may produce any
evidence of independent title; State v. Pacific Guano Co., 22 S. C. 81, apply-
ing rule where State is grantor; Moore v. Smead, 89 Wis. 565, where
grantee showed his grantor s title had been divested by transfer to another ;
Neher v. Armijo, 54 Pac. 240, sustaining title of grantee of certain tenants
in common against, the remaining tenants in common, on ground of adverse
possession ; Willison v. Watkins, 3 Pet. 50 7 L. Ed. 599, applying rule between
tenants in common, Watkins v. Holman, 16 Pet. 54, 10 L. Ed. 885, Zeller v.
Eckert, 4 How. 296, 11 L. Ed. 982, arguendo ; Croxall v. Shererd, 5 Wall. 287,
18 L. Ed. 579, where defendant was bona fide purchaser from lessee, the case
holding such a purchaser holds adversely to the whole world; Merryman v.
Bourne, 9 Wall. 600, 19 L. Ed. 686, arguendo ; Grosholz v. Newman, 21 Wall.
488, 22 L. Ed. 472, as authority for holding the grantee of a grantee is not
estopped from showing original grantor's deed, because his grantor had
accepted mortgage on property from original grantor subsequent to ac-
ceptance of deed from same party ; Flagg v. Mann, 2 Sumn. 5^, Fed. Cas.
4847, and A. T. & S. F. Co. v. Starkweather, 21 Kan. 328, arguendo ; Ward v.
Cochran, 71 Fed. 131, 36 U. S. App. 307, as authority for holding vendee
in possession under parol contract of sale holds adversely to his vendor;
dissenting opinion in Stafford v. Watson, 41 Ark. 34, 36, arguendo. Re-
ferred to in discussion, Logan v. Steel, 7 T. B. Mon. 104, 105, and in Casey
V. Inloes, 1 Gill, 495, 39 Am. Dec. 671, as containing able exposition of
doctrine; Warren v. Bowdran, 156 Mass. 284, 31 N. E, 302, as authority
for holding person in possession, claiming ownership, may purchase out-
standing title from third person, without impairing his own title by ad-
verse possession; Morgan v. Lodge, 53 Miss. 677, as to right of defendant
in ejectment to set up title in third person, when he and plaintiff claim
title from common source; People v. Van Rensselaer, 9 N. Y. 343; Trustees
V. Jennings, 40 S. C. 183, 42 Am. St. Rep. 868, 18 S. E. 263, Rhett v. Jen-
1—75
7 Wheat. 661-^52 NOTES ON U, S. REPORTS, 1186
kins,. 25 S. C. 458, Gray v. Darby, Mart. & Y. 423, Ray v. Gk>odinan, 1
Sneed, 592, and Lawton v. Howe, 14 Wis. 247, arguendo.
Distinguished in Hoyt v. Ldghtbody, 98 Minn. 192, 116 Am. St. Rep. 358.
8 Ann. Cas. 984, 107 N. W. 844, holding tax title acquired by one after
purchasing undivided interest could not be asserted adversely against his
cotenant; dissenting opinion in Weston v. John L. Roper Lumber Co., 162
N. C. 200, Ann Oaa. 1915A, 931, 77 S. E. 444, majority holding judgment of
partition where title was not adjudicated did not estop grantee of land
allotted to one party from denying title of another party to different part
of land; Jackson v. Chew, 12 Wheat. 168, 6 L. Ed. 589, and McDonald v.
Hannah, 59 Fed. 979, 15 U. S. App. 348, as not bearing on question for
which cited; Burnett v.. Caldwell, 9 W^ll. 293, 19 L. Ed. 713, and Pyles v.
Reeve, 4 Rich. ^559, where vendee violated contract under which he obtained
possessiosT; Mayor v. Hopkins, 13 La. 330, it is doubted whether doctrine
" will apply in contract of sale; Ward v. Mcintosh, 12 Ohio St. 239, where
grantee receives possession from grantor and relies on his grant for^itle
for such possession; Clark v. McClure^ 10 Gratt. 311, where vendee enters
under executory contract which leaves title where it was.
Right to assert against bailor, hostile, adverse, paramount title of third
person. Note, 33 L. B. A. (N. S.) 683.
Miscellaneous. Cited in Strickley v. Hill, 22 Utah, 270, 62 Pac. 897,
holding that when the evidence as to naturalization of locator of mining
claim is conflicting appellate court will not interfere; Moore v. Green, 2
Curt. 210, Fed. Cas. 9763, not in point; Dalles v. Missionai^ Society, 6
Sawy. 145, 6 Fed. 374, and Green v. Gill, 47 Mich. 87, 10 N. W. 119, for
what point is not clear. Erroneously cited in Unger v. Mooney, 63 Cal-
593, 49 Am. Rep. 105, and Macklot v. Dubreuil, 9 Mo. 491, 43 Am. Dec.
560; Jones v. Porter, 3 Penr. & W. 135, and Brown v. Storm, 4 Vt. 44,
not in point; McCusker v. McEvey, 10 R. I. 610, as to origin of doctrine
of estoppel; dissenting opinion in EUege v. Cooke, 5 Lea, 639, as to nature
of possession of purchaser by title bond.
7 Wheat. 561-552, 5 I«. Ed. 520, THE IBSESISTIBUB.
Offense against temporary act cannot be punished after expiration of act,
unless particular provision be made for purpose.
Approved in Atlantic Coast Line R. Co. v. Mazursky, 216 U. S. 131, 64
L. Ed. 416, 30 Sup. Ct. 378, construing and upholding statute requiring
carrier to settle damage to freight in its possession within specified time;
Sims V. United States, 121 Fed. 517, holding indictment for offense against
Chinese Exclusion Act not brought uiitil after expiration of time limited
by act was not demurrable, since act was continued in force by section 13
thereof; Venning v. Atlantic Coast Line R. Co., 78 S. C. 56, 125 Am. St.
Rep. 768, 12 L. B. A. (N. S.) 1217, 58 S. E. 988, construing statute providing
penalty for failure to pay damage to freight in given time; Assessors v.
Osbom, 9 Wall. 575, 19 L. Ed. 751, holding, where jurisdiction is conferred
by statute, suits brought during the existence of the statute fall with its
repeal; Moore v. United States, 85 Fed. 468, 56 U. S. App. 477, holding
no prosecution could be had under law applying only to territories after
1187 NOTES ON U. S. REPORTS. 7 Wheat. 553-681
territory had been admitted as a State, unless so i»rovided by statute; dis-
senting opinion in Jones v. State, 1 Iowa, 402, holding the repealing act
contained a proviso applying to offenses committed under the act; Thayer
V. Seavey, 11 Me. 287, where principle is applied in case of repeal of
statute; Engle v. Shurts, 1 Mich. 151, where statute imposing penalty for
taking usurious interest was repealed before bill was filed in action under;
Peddle v. Hollinshead, 9 Serg. & R. 283, where certain privileges as to stay
of execution were affected; Commonwealth v. Standard Oil Co., 101 Pa. St.
150, to action to enforce penalties; Kenyon v. State, 31 Tex. Cr. 14, 23
S. W. 191, holding, where party was convicted, under statute repealed pend-
ing appeal, the prosecution should be dismissed.
Effect of repeal of criminal statute after'^judgment. Note, 1 Ann. Oas.
' 220.
7 Wheat. 553-556, 5 L. Ed. 653, HOLBBOOK ▼. UNION BANK.
• Not cited.
7 Wheat. 556-681, 6 L. Ed. 522, MABBtJBT v. BBOOKa
A debtor may prefer one creditor to another. ,
Approved in Droop v. Ridenour, 11 App. D. C. 241, upholding conveyance
to one creditor in discharge of debt giving him preference over other
creditors was not assignment for benefit of creditors ; Billings v. Parsons, 17
Utah, 27, 53 Pac. 732, holding debtor had the right to pay wages of em-
ployee before making an assignment; Tompkins v. Wheeler, 16 Pet. 118,
10 L. Ed. 908, where debtor made assignment in favor of certain creditors ;
Huntley v. Kingman, 152 U. S. 532, 88 L. Ed. 642, 14 Sup. Ct. 690, and
this may be done although fund for payment of other creditors be lessened ;
Ashby V. Steere, 2 Wood. & M. 357, Fed. Cas. 576, where debtor made
conveyance several months before he went into bankruptcy; Gassett v.
Wilson, 3 Fla. 260, where debtor after proceedings had been instituted
against^-him by certain creditors made assignment of his property to certain
other creditors in satisfaction of his debts to them ; Thornton v. Davenport,
1 Scam. 298, 29 Am. Dec. 360, where debtor on day certain creditors ob-
tained judgment against him, gave mortgage to^ other creditors ; State of
Maryland v. Bank of Md., 6 Gill & J., 219, 26 Ajxl Dec. 664, applying rule
to assignment by corporation to trustee for benefit of creditors ; McGuinnay
V. Hitchcock, 8 Tex. 35, conveyance to preferred creditor; Emerson v.
Senter, 118 U. S. 10, 80 L. Ed. 61, 6 Sup. Ct. 984, arguendo; Halsey v. Whit-
ney, 4 Mason, 213, Fed. Cas. 5964, as common-law rule; Robinson v.
Rapelye, 2 Stew. 100, as to right of debtor to control his property unre-
strained; dissenting opinion in Bank of Commerce v. Payne, 86 Ky. 479,
481, 8 S. W. 868^ 869, and McCall v. Hinkley, 4 Gill, 157, arguendo; Hol-
lister V. Loud, 2 Mich. 313, as to effect on grant of fraudulent intent in
grantor where grant is to bona fide purchaser without notice; Nevitt v.
Bank, 6 Smedes & M. 579, arguendo.
Distinguished in Robins v. Embry, 1 Smedes & M. Ch. 258, 259, holding
a banking corporation cannot make an assignment in favor of particular
creditors to exclusion of others.
Preferences to creditors. Note, 26 Am. Dec. 584.
7 Wheat. 556-681 NOTES ON U. S. REPORTS. 1188
Wliere debtor makes conveyance to part of creditors only, unlawful con-
sideration moving ftom preferred creditors avoids conveyance.
Principle applied in Cleveland v. La Crosse Ry. Co., 5 Fed. Cas. 1035,
where corporation conveyed to two of its directors; approved in Brown v.
McLean, 5 Mackey (D. C), 564, holding assignment for creditors not void
because its terms made it possible for dishonest trustee to favor some cred-
itors.
Conveyance to creditors valid thongb made to compoimd felony.
Cited in School District v. Alderson, 6 Dak. Ter. 153, 41 N. W. 468,
where it was sought by parol to invalidate a written agreement on ground
of its having been made to compound a felony ; Billings v. Parsons, 53 Pac.
732, sustaining an assignment for creditors assuming it made with intent to
defeat a threatened attachment; Jones v. Cullen, 100 Tenn, 19, 42 S. W.
877, sustaining an assignment alleged to have been made to prevent prosecu-
tion for embezzlement.
Distinguished in Yowell v. Walker, 118 La. 47, 42 South. 642, holding
it defense to notes that they were executed on condition criminal prosecu-
tion would be stopped.
Validity of contract to secure existing indebtedness between parties
made in consideration of agreement not to prosecute criminally.
Note, 16 Ann. Oas. 312.
An existing debt is good consideration for a conveyance from debtor to
creditor.
Approved in Halsey v. Whitney, 4 Mason, 215, 216, 217, Fed. Cas. 5964,
and United States v. Bank of United States, 8 Rob. (La.) 405, where
debtor had made assignment of his property in trust for benefit of cred-
itors ; Bank of United States v. Huth, 4 B. Mon. 435, arguendo.
It is not necessary creditor slionld have notice of execution of deed, pro-
vided he afterward assents.
Approved in Houston v. Nowland, 7 Gill & J. 492, where conveyance
was made to trustee for benefit of creditors; Ingram v. Kirkpatrick, 6 Ired.
Eq. 473, 475, 51 Am. Dec. 434, 436, holding, where conveyance is made in
trust for payment of debts and trustee accepts same, the relation of trustee
and cestui que trust is established in favor of creditors, except as to those
who do not assent; Milling Co. v. Eaton, 86 Tex. 406, 24 L. B. A. 381, 25
S. W. 615, by statute, a general assignment is valid without assent of cred-
itors; Sktpwith V. Cunningham, 8 Leigh, 286, 31 Am. Doc. 650, where cred-
itor assented subsequently to the rendering of judgment against grantor in
favor of other creditors ; dissenting' opinion in Oakley v. Hibbard, 1 Pinn.
681, the majority holding an assignment for benefit of creditors made by^
one not in failing circumstances may be revoked after assignee has partly
executed his trust, as to 'such creditors as had no notice of assignment ;
Robinson v. Rapelye, 2 Stew. 99, as to trustee being agent of assignor, and
same case, p. 103, as to when assent of creditors will be presumed; State
of Md. V. Bank of Md., 6 Gill & J. 230, 26 Am. Dec. 673, arguendo.
1189 DORR V. PACIFIC INS. CO. 7 Wheat. 591-615
Distinguished in Townsend v. Harwell, 18 Ala. 305, holding there is no
presumption of assent by creditors where conveyance is made wifh intent
on part of debtor to delay, hinder and defraud creditors; Tompkins v.
Bamberger, 3 Lea, 580, where creditors knew nothing of conveyance until
four years after it happened, and in meantime other creditors had acquired
lien on property by legal proceedings.
Participation in debtor's fraudulent intent invalidating transfer.
Note, 31 L. B. A. 615, 617.
Assignee of delvtor for pnxpose of paying debts Is debtor's agent for that
purpose.
Approved in Fechheimer v. Hollander, 21 D. C. 85, holding assignee in
assignment for benefit of creditors was not bona fide purchaser.
■
Should trustee for creditors refuse to act, court of cliancery may compel
him or appoint another In his stead.
Cited in Robinson v. Rapelye, 2 Stew. 98, and Dewoody v. Hubbard, 1
Stew. & P. 11, where conveyance had been made to trustee for benefit of
creditors; Sutton v. Simon, 91 Tex. 641, 45 S. W. 560, sustaining an inno-
cent creditor's rights nnder a fraudulent assignment.
Miscellaneons. Referred to in Brooks v. Marbury, U Wheat. 85, 6 L. Ed.
425, same case on second appeal. Cited erroneously in Adams v. Blodgett,
2 Wood. & M. 238, Fed. Cas. 46 ; Ex parte Conway, 4 Ark. 351, as to power
of debtor to make assignment to trustee for benefit of creditors; Mayhew
V. Graham, 4 GiU, 361, and Brown v. Bonner, 8 Leigh, 7, 31 Am. Dec. 639,
not in point ; Cunningham v. Ward, 30 W. Va. 579, 5 S. E. 650, as to prop-
erty'bought with partnership funds but conveyed to partners as individuals
being liable for partnership debts.
7 Wheat. 591-615, 5 L. Ed. 628, DOSB ▼. PAOIFIO HUB. 00.
Oertlficate of survey Is not legal evidence, because examination of sur-
veyors themselves would be better.
Cited in The Down, 1 Ware, 491, Fed. Cas. 3665, as bearing on question
whether report of surveyors is ever admissible as evidence.
Contract of, constmed with reference to meaning of expression "regular
survey" used therein.
Cited in Potter v. Ocean Ins. Co., 3 Sumn. 42, 43, Fed. Cas. 11,334, as
bearing on question who has jurisdiction to order survey in foreign port.
When proof by regular survey of unsoundness at subsequent period of
voyage discharges underwriters.
Cited in Griswold v. Insurance Co., 3 Cow. 118, as authority for holding
a survey as set out in plea was good bar to action; Janney v. Columbia
Ins. Co., 10 Wheat. 416, 6 L. Ed. 366, arguendo.
Distinguished on ground question of construction was not taised at trial
in Insurance Co. v. Mordecai, 22 How. 117, 16 L. Ed. 382.
NOTES
ONTHB
UNITED STATES REPORTS.
Vin WHEATON.
8 Wheat. 1-106, 6 L. Ed. 547, OBEEN v. BIDDLE.
At common law disseizor is liable to owner for all rents and profits wliicli
lie lias received.
Cited in Cunningham v. Ashley, 16 Ark. 182, 63 Am. Dec. 63, holding
right to rents and profits of land necessarily follows the recovery as a con-
sequ^ce resulting therefrom ; Trubee v. Miller, 48 Conn. 357, 40 Am. Edp.
180, where tenant of disseizor was compelled to account to disseizee; Al-
liance Co. V. Hardwood Co., 74 Miss. 589, 60 Am. St. Bep. 533, 36 L. B. A.
156, 21 South. 398, disseizee, after re-entry, may maintain trover or tres-
pass de bonis, for trees cut while out of possession; dissenting opinion in
Sanderson v. Pric^, 21 N. J. L. 647, holding tenant of mortgagor holding
by lease made subsequent to mortgage, is liable for mesne profits from
time of service of declaration in ejectment ; City of Apalachicola v. Apala-
chicola Co., 9 Fla. 349, 79 Am. Dec. 287, Mundy v. Monroe, 1 Mich. 72, and
Bacon v. Sheppard, 11 K. J. L. 199, 200, 20 Am. Dec. 585, 586, arguendo ;
Peter v. Hargrave, 5 Gratt. 18, where slave, having recovered freedom,
brought action for mesne profits; Cain v. Cox, 29 W. Va. 261, 1 S. E. 301,
applying rule under statute.
Distinguished in Pacific Live Stock Co. v. Isaacs, 52 Or. 68, 96 Pac.
465, holding plaintiff without right of immediate possession of land claimed
by him but with title in United States, could not recover h&y purchased
from another and cut on land.
Remedy of disseizee against stranger. Note, 85 Am. Dec. 326.
Devise of profits of land, or even grant of them, will pass a right to the
land Itself.
Principle affirmed without special application in Mason v. Kellogg, 38
Mich. 137.
Distinguished in Homer v. Philadelphia Co., 71 W. Va. 349, 76 S. E. 664,
holding grant of interest in royalty in oil and gas did not grant oil and gas
in place in ground.
(U91)
8 Wheat. 1-108 NOTES ON U. S. REPORTS. 1192
Equitable owner who stands by and sees another occupy and Improve bis
property is estopped to claim value of improvements or land.
Approved in Western Union Tel. Co. v. American Bell Tel. Co., 187 Fed.
452, holding where defen^dant held stock in corporation, percentage of which
belonged to plaintiff under contract between them, expense incurred by
defendant to increase value of stock after notice of plaintiff's claim, which
it denied, could not be charged against plaintiff; Hopkins v. Grimshaw,
17 App. D. C. 11, where land held in trust reverted to grantor or disuser,
holders were entitled to reimbursement for only such improvements as
were beneficial to grantor ; Mclntire v. Pryor, 10 App. D. C. 437, 440, hold-
ing on accounting ordered after setting aside deed procured by fraud
defendants were entitled to have improvements offset against rents and
profits, which accrued by reason of improvements ; Hunter v. Coe, 12 N. D.
515, 97 N. W. 872, one purchasing realty with notice of outstanding con-
tract of sale may be compelled to convey, but purchaser will be required
to pay to vendee from unpaid purchase price payments he has made to
vendor; Wilie v. Brooks, 45 Miss. 548, as ground for equitable estoppeL
In equity, one in possession is liable to accoant to tnie owner for rents'
"'and profits, ttom time title accrued.
Cited in Russell v. Southard, 12 How. 156, IS L. Ed. 984, where there
was laches in asserting rights under a mortgage; Martin v. Evans, 1 Strob.
£q. 355, where possession was bona fide under purchase at sheriff's sale;
Tyler v. Maguire, 17 Wall. 292, 21 L. Ed. 686; Payne v. Atterbury, Harr.
Ch. (Mich.) 419, arguendo.
Who is bona fide possessor of land.
Approved in Douglass v. Hunt, 98 Ark. 322, 136 S. ^W. 171, where re-
corded deed to defendant's grantor showed lack of title, defendant was
not "bona fide occupant"; McDonald v. Rankin, 92 Ark. 183, 122 S. W.
91, one in possession believing his title good through mistake of law was
possessor in good faith entitled to compensation for improvements; Brown
V. Nelms, 86 Ark. 403, 112 S. W. 386, purchaser in good faith at adminis-
trator's sale, but actually disqualified, was bona fide occupant, and when
sale was set aside, decree for rents and profits was limited to three years;
Anderson v. Reid, 14 App. D. C. 74, 81, one who purchased without examin-
ing records which showed infirmity of title was not bona' fide purchaser;
Bryan v. Councilman, 106 Md. 388, 14 Ann. Cas. 1175, 67 Atl. 282, wife
who spent money improving land which she did not claim was not bona fide
holder entitled to lien on land; Canal Bank v. Hudson, 111 U. S. 80, 28
L. Ed. 359, 4 Sup. Ct. 311, involving right of possessor to compensation
for improvements; Gordon v. Tweedy, 74 Ala. 235, filing claim by one
claiming superior title is fatal to occupant's claim for improvements; Pee
V. Cowdry, 45 Ark. 419, 65 Am. Rep. 566, holding claimant was bona fide
holder; McLaughlin v. Bamum, 31 Md. 454, Cole v. Johnson, 53 Miss. 101,
and Dom v. Dunham, 24 Tex. 379, all following rule; Broumel v. White,
87 Md. 527, 39 Atl. 1049, holding one building by mistake partly on
unopened street entitled to be paid for same on removaL
U93 GREEN y. BIDDLE. 8 Wheat. 1-108
At common law bona fide occupant may recoup tbe Talne of Improvements
against claim for mesne profits.
Approved in Richmond v. Ashcraft, 137 Mo. App. 202, 117 S. W. 693,
occupant who believed adverse claim of title was bad not entitled to bet-
terments; Phillips V. Stewart, 87 Mo. App. 493, holding in action of tres-
pass measure of damages is fair annual value of monthly rents from time
defendant first obtained knowledge of plaintiff's claim; Reynolds v. Fewel,
34 Okl. 116, 124 Pac. 625, holding defendant not entitled to value if
improvements made after suit was commenced; Williams v. Gibbes, 20
How. 538, 15 L. Ed. 1014, where assignee, being compelled to defend title
of assignor, was held entitled to reimbursement for costs; Bright v. Boyd,
1 Story, 493, 494, 496, Fed. Cas. 1875, where bona fide purchaser made
improvements; Stark v. Starr, 1 Sawy. 26, Fed. Cas. 13,307, bona fide pos-
sessor under color of title; Lamar v. Minter, 13 Ala. 43, 'where improve-
ments were made under parol contract to purchase; Porter v. Hanley, 10
Ark. 194. affirming rule, although case is decided on statutory grounds;
Byers v. Fuwler, 12 Ark. 292, 54 Am. Dec. 293, and Jackson v. Loomis,
4 Cow. 172, 15 Am. Dec. S48, cases of bona fide purchasers; McCloy v.
Amett, 47 Ark. 458, 2 S. W. 76, but only to extent they have enhanced
rent ; Griswold v. Bragg, 48 Conn. 582, 18 Blatchf . 208, 48 Fed. 522, holding
statute valid which permits bona fide possessor in action of ejectment to
set off value of improvements against claim for use and occupation; Pugh
V. Bell, 1 J. J. Marsh. 405, holding further, rule that occupant may recover
for improvements only to extent of claim for rents, should be restricted to
cases mala fide ; McLaughlin v. Bamum, 31 Md. 456, holding further, occu-
pant is not entitled to compensation for improvements made after notice
of adverse claim; Pickering v. Pickering, 63 N. H. 471, where tenant in
common was allowed to set off expense of repairs on common property
against claim for accounting for rents brought by cotenant; Preston vT
Brown, 35 Ohio St. 28, where improvements were made by one in posses-
sion under agreement to purchase, holding his claim is a lien on property;
Dellet V. Whitner, Chev. Eq. 228, but chancery will not sustain a claim
for improvements beyond rents and profits; Wilson v. Scruggs, 7 Lea, 641,
applying principle in construction of statute on subject ; Carver v. Jackson,
4 Pet. 101, 7 L. Ed. 796, discussing right to value of improvements of pur-
chasers of forfeited estates under New York statute; Litchfield r. Johnson,
4 Dill. 556, Fed. Cas. 8387, ease is decided on statutory grounds; Tufts v.
Tufts, 3 Wood. & M. 482, 512, Fed. Cas. 14,233, Jones v. Great Southern
Hotel, 86 Fed. 385, arguendo; Summers v. Howard, 33 Ark. 496, holding
improvements should be estimated at their value at the time of t}^e re-
covery; Billings V. Hall, 7 Cal. 7, 8, construing settler's act of 1856; Davis
V. Smith, 5 Ga. 289, 48 Am. Dec. 288, arguendo; Parson v. Moses, 16 Iowa,
445, and Putnam v. Ritchie, 6 Paige, 403, although decided on statutory
grounds; Bell's Heirs V. Bamet, 2 J. J. Marsh. 528, Stark v. Coffin, 105
Mass. 332, arguendo; McCoy v. Grandy, 3 Ohio St. 466, as to constitu-
tionality of act which gives occupying claimant option of taking land at
its value less improvements, or compelling successful claimant to pay for
improvements; Martin's Appeal, 23 Pa. St. 438, arguendo; Scott v. Mather,
8 Wheat. 1-108 NOTES ON U. S. REPORTS. 1194
14 Tex. 236, 237, and Saunders v. Wilson, 19 Tex. 196, where court hold
it is not unconstitutional to allow bona fide occupant £ull value for im-
provements regardless of value of use and occupation; Heam v. Camp,
18 Tex. 549, 550, holding void act of 1844, relative to compensation of
settlers for improvements.
Distinguished in Dermott v. Jones, 23 How. 235, 6 L. Ed. 448, where
claimant did not follow proper procedure; Doe v. Roe, 31 Fed. 99, where
plea, being equitable, was set up to action at law; Leighton v. Young, 52
Fed. 444, 10 U. S. App. 298, 18 L. R. A. ?71, by statute; N. 0. & S. R. Ry.
V. Jones, 68 Ala. 55, where improvements were made by trespasser and
in mala fide ; Hawke v. Deffebach, 4 Dak. 40, 22 N. W. 490, and Woodhull
V. Rosenthal, 61 N. Y. 397, where improvements were not made in good
faith; Ross v. Irving, 14 111. 177, Armstrong v. Jackson, 1 Blackf. 375, and
Webster v. Stewart, 6 Iowa, 403, on statutory grounds ; Strike v. McDonald,
2 Har. & G. 225, 227, 1 Bland Ch. 76, 78, where improvements were made
by one conscious of defect in title ; Laible v. Ferry, 32 N. J. Eq. 801, where
claimants extended credit to party whom they knew had no authority to
bind trust property; Worthington v. Young, 8 Ohio, 404, where attempt
was made to set off value of improvements against claim for rents, under
lease providing tenant might remove improvem^^s at expiration of term;
Effinger v. Hall, 81 Va. 102, and Dawson v. Grow, 29 W. Va. 337, 1 S. E.
567, improvements made with notice of defect in title.
Modified in Ewing's Heirs v. Handley, 4 Litt. 371, and Pugh v. Bell,
2 T. B. Mon. 129, 15 Am. Dec. 147, holding value of improvements is not
always restricted to amount of rents charged.
Compensation for improvements in ejectment. Note, 16 Am. Dec. 350,
851, 852.
Knowledge or notice of adverse claim as affecting right to compensa-
tion for improvements. Note, Ann. Gas. 1916B, 57, 58.
Right to compensation for bona fide improvements on land under oral
contract or gift. Note, 53 L. K. A. 338.
Right of person to recover damages for failure of other party to per-
form contract not valid under the statute of frauds, as where im-
provements are put on land, or other acts done relying upon sub-
contracts. Note, 6 Am. St. Rep. 495.
Law which in any manner changes intention of parties, resulting from
stipulations in contract. Impairs it.
Approved in Welch Water etc. Power Co. v. Town of Welch, 64 W. Va.
375, 82 S. E. 497, holding void statute limiting tax rate of town as impair-
ing obligation'^of prior contract of town for light and water which neces-
sitated higher rate; Milwaukee Electric Ry. etc. Co. v. Railroad Commis-
sion, 153 Wis. 619, Ann. Cas. 1915A, 911, L. R. A^ 1915F, 744, 142 N. W.
499, holding under statute of 1862, providing for granting franchises to
street railway companies, ordinance granting such franchise was not con^
tract; dissenting opinion in Fuhrman v. Coddington Engineering Co., 156
Wis. 666, 146 N. W. 796, majority holding statute prescribing Umitationa
• 1195 GREEN v. BIDDLE. 8 Wheat. 1-108
in construction of courthouses did not impair obligation of contract for
courthouse not yet commenced, though it might amount to breach of con-
tract; Schuster v. Weiss, 114 Mo. 174, 19 L. R. A. 187, 21 S. W. 443, Ua-
bility of surety changed by enlarging contract of principal; Berdan v.
Van Riper, 16 N. J. L. 11, holding an act respecting estates of joint tenancy
does not affect estates created before its adoption; dissenting opinion in
State V. Mathews, 3 Jones (N. C), 464, holding an act making it an indict-
able offense to pass bank bills of certain denominations impairs contract
authorizing bank to issue bills of that denomination; Goodale v. Fennell,
27 Ohio St. 432, 22 Am. Rep. 326, where, after municipality under general
statute had contracted for improvements, its power of taxation was re-
stricted; Knighton v. Burns, 10 Or. 551, App., holding a law permitting
debts to be canceled in currency known as ''scrip," is void as to debts
contracted before its enactment; Western Fund Society v. Philadelphia,
31 Pa. St. 182, 72 Am. Dec. 734, where principle was applied tq acts of
municipality which impaired its contracts; Goggans v. Tumipseed, 1 S. C.
82,' 98 Am. Dec. 398, holding statute providing creditor might charge speci-
fied interest on open accounts is invalid as to contracts made before its
passage; Taylor v. Steam^, 18 Gratt. 274, where statute stayed collection
of debts for a limited period; Bank v. McVeigh, 20 Gratt. 465,. where place
of payment was changed by law; Homestead Cases, 22 Gratt. 288, 292, 12
Am. Bep. 615, 518, where statute increased amount of property exempt as
a homestead; State v. Commissioners, 4 Wis. 418, where conditions under
which purchases of school lands might be made were changed; In re Ken-
nedy, 2 S. C. 222, but holding a homestead exemption law is not void as
to contracts made before its adoption.
Statute wUcsh so changes nature and extent of remedies on contract ae to
impair right is to tliat extent Yoid.
Approved in Osfakosh Waterworks Co. y. Oshkosh, 187 U. S. 439, 47
L. iSd. 250, 23 Snp. Ct. 234, holding^ obligation of contracts with munici-
pality is not impaired when charter provides that no suit shall be main-
\ tained which has not been first presented to city council, and disallowed
claim must be presented by appeal to Circuit Court; Stearns v. Minnesota,
179 U. S. 245, 45 L. Ed, 174, 21 Sup. Ct 81, holding Minn. S. P. Laws 1865,
c. 2, p. 19, and 1870, p. 338, whereby State exempted companies from taxa-
tion until sale of certain lands, in consideration-of portion of gross receipts,
were not unconstitutional; City of Cleveland v. United States, 166 Fed.
682, 93 C. C. A. 274, holding void statute relating to assessment of taxes
as depriving judgment creditor of his remedy in collecting from current
taxes; Harrison v. Remington Paper Co., 140 Fed. 391, 392, holding void,
as to existing contracts, Kansas Act of 1898 substituting equity suit for
existing remedy to enforce stockholder's liability; Knickerbocker Trust
Co. V. Myers, 133 Fed. 768, holding void Acts Md. 1904, p. 579, c. 337, which
takes away remedy given by Acts Md. 1892, p.. 153, c. 109, § 851, relating
to liability of stockholders; Welsh v. Cross, 146 Cal. 624, 625, 106 Am. St.
Eep. 63, 81 Pac. 230, time for redemption of realty from execution sale on
judgment is not affected by subsequent changing of statute extending time
8 Wheat. 1-108 NOTES ON U. S. REPORTS. 1196
for redemption, before levy and sale under execution; Wilder v. Campbell,
4 Idaho, 699, 43 Pac. 678, holding statute extending time to redeem from
foreclosure sale does not apply to mortgages executed before passage of
act; Hile v. Troupe, 77 Neb. 202, 109 N. W. 219, holding assignment of
lease to school lands executed before act of March 5, 1885, not affected by
requirement that assignments be recorded; Bremen M. & M. Co. v. Bremen,
13 N. M. 120, 79 Pac. 809, holding statute giving, right of redemption ^f ter
foreclosure of deed of trust did not apply to deed of trust executed before
statute took effect; Blakemore v. Cooper, 15 N. D. 13, 125 Am. St. Rep.
574, 4 L. R. A. (N. S.) 1074, 106 N. W. 569, holding code provision relating
to redemption from tax sales did not apply to certificates issued under
former statutes; Craig v. Herzman, 9 N. D. 144, 81 N. W. 289, holding
under § 4795, Rev. Code N. D., obligation of mortgage is hot impaired by
dividing proceeds of sale between first mortgagee of land and first me-
chanic's lienholder on building; Smith v. Jennings, 67 S. C. 336, 45 S. E.
826, joint resolution requiring State treasurer to write off the books, as
State obligations, certain past due bonds, is not law impairing obligation
of contracts; Smith v. Northern Neck Mut. Fire Assn., 112 Va. 199, 38
L. R. A. (N. S.) 1019, 70 S. E. 485, upholding act declaring void insurance
policies imposing limitations of less than one year on time to sue there-
under; Investment Co. v. Hambach, 37 Wash. 633, 80 Pac. 192, upholding:
Sess. Laws 1903, p. 262, c. 137, allowing value of improvements made in
good faith in actions for recovery of realty; Peninsular Lead & Color
Works V. Union Oil & Paint Co., 100 Wis. 492, 69 Am. St. Rep. 937, 76
N. W. 36i, holding Laws 1897, c. 334, § 3, providing that assignment for
benefit of creditors, made within ten days after levy of attachment, dis-
solves attachment is unconstitutional as to debts existing at time of its
passage; dissenting opinion in Converse v. Aetna Nat. Bank, 79 Conn. 183,
7 Ann. Oas. 75, 64 Atl. 348, majority holding enlargement of remedies of
creditors against corporation or stockholders did not impair obligation of
contract; Winchester v. Walker, 59 Colo. 27, 147 Pac. 346, arguendo; Bron-
son V. Kinzie, 1 How. 316, 317, 11 L. Ed. 145, 149, ease of a statute affect-
ing mortgagee's foreclosure rights; Planters' Bank v. Sharp, 6 How. 327,
330, 332, 12 L. Ed. 458, 459, 460, where right of bank to collect notes w«s im-
paired ; Curran v. State, 15 How. 319, 14 L. Ed. 712, where State was made
preferred creditor of bank, leaving, in effect, no remedy to other creditors ;
Von Hoffman v. City of Quincy, 4 Wall. 550, 552, 18 L. Ed. 408, 409, and
United States v. New Orleans, 17 Fed. 488, where statute restricted munici-
pality's powers of taxation, thereby rendering it unable to pay its out-
standing bonds ; Edwards v. Kcarzey, 96 U. S. 601, 604, 24 L. Ed. 796, 797,
where statute increasing amount of property exempt from execution was
enacted subsequent to contraction of debt; Barnitz v. Beverly, 163 U. S.
123, 41 L. Ed. 98, 16 Sup. Ct. 1044, holding a statute authorizing redemp-
tion after foreclosure, when no such right existed at time contract was
made, is void as to such contracts; Nelson v. McCrary, 60 Ala. 310, where
statute enlarged homestead exemptions; Edwards v. Williamson, 70 Ala.
152, holding statute relating to collection of taxes, which operated to impair
a State 's contracts with its creditors, to be inoperative ; Jacoway v. Denton,
1197 GREEN v. BIDDLE. 8 Wheat. 1-108
25 Ark. 641, where State Constitution cut off all remedy on contracts for
sale of slaves; Cohn v. Hoffman, 45 Ark. 385, holding exemption in Con-
stitution as to homestead has no application to debts contracted before
its adoption; McCauley v. Brooks, 16 Cal. 30, holding statute requiring
claims against State to be approved by board of examiners has no appli-
cation to claims matured before its enactment; dissenting opinion in Cutts
V. Hardee, 38 Ga. 385, where statute permitted evidence to be introduced
to attack consideration as to certain contracts made before passage of act;
Lott V. Dysart, 45 Ga. 361, where statute imposed certain conditions as to
payment of taxes which must be complied with before courts would render
assistance to enforce contract; Fisher v. Green, 142 111. 94, 31 N. E. 176,
where statute operated to deprive mortgagee of right to have property
sold under power of sale, and without redemption; Martindale v. Moore,
3 Blackf. 281, holding statute providing mispleading should not render
executor personally liable, does not have retroactive effect; Berry v. Rana-
dall, 4 Met. (Ky.) 294, where l^slature sought to limit time for bringing
action, regardless of time when right of action accrued; Collins v. Collins,
79 Ky. 90, 92, applying rule to statute affecting redemptions of real estate
sold under order of court; Sabatier v. Creditors, 6 Mart. (La.) (N. S.)
591, and Lessley v. Phipps, 49 Miss. 799, where amount of exempt prop-
erty was increased; Rowlett v. Shepherd, 4 La. 94, where statute com-
pelled debtor to pay interest on certain contingency; dissenting opinion in
Doughty V. Sheriff, 27 La. Ann. 360, holding statute exempting property
from execution has no application to cases where debt was contracted
before its passage; Phinney v. Phinney, 81 Me. 461, 10 Am. St. -Rep. 269,
4 L. R. A. 350, 17 Atl. 407, time for redemption extended ; Cargill v. Power,
1 Mich. 371, where time for redemption was shortened; Coffman v. Bank
of Kentucky, 40 Miss. 33, 90 Am. Dec. 314, where ''stay laws" operated
to take away all remedies for period of two years; Leavitt v. Lovering,
64 N. H. 609, 1 L. R. A. 59» statute providing all payments made within
three months before assignment for benefit of creditors shall be void, does
not apply to payments of existing contracts; Moore v. State, 43 N. J. L.
206, 39 Am. Rep. 561, where statute operated to create liability which had
been barred by statute of limitations ; State v. Carew, 13 Rich. 511, 91 Am.
Dec. 250, where statute operated to stay execution; State v. Bank, IS. C.
78, where act withdrew property of debtor from operation of legal process
of creditor; State v. Cardozo, 8 S. C. 81, 28 Am. Rep. 284, where statute
diverted money from a fund which State had pledged for payment of its
bonds; Nelson v. Allen, 1 Terg. 383, holding statute allowing defendant in
ejectment the 'value of improvements made upon land, void; Grasmeyer v.
Beeson, 13 Tex. 530, where statute took away all remedy; Swinburne v.
Mills, 17 Wash. 618, 61 Am. St. Rep. 936, 50 Pac. 491, case of statute re-
quiring a year's stay of sale under foreclosure decree, and requiring sale
to bring within eighty per cent of appraised valuation, there having been
no such law at time mortgage was given; Peninsular etc. v. Union Oil Co.,
100 Wis. 492, 42 L. R. A. 832, 76 N. W. 361, and Sec. etc. Bk. v. Schranck,
97 Wis. 262, 39 L. R. A. 575, 73 N. W. 35, act enabling debtor by assign-
ment of his property to defeat a levy thereon made within ten. days, is
8 Wheat. 1-108 NOTES ON U. S. REPORTS. 1198
invalid as to pre-existing contracts; Lavin y. Emigrant Bank, 18 Blatchf.
16, 1 Fed. 656, as bearing on question of what constitutes "due process
of law'*; Limestone County v. Rather, 48 Ala. 447, affirming rule; Thome
V. San Francisco, 4 Cal. 142, quaere, whether suspension of remedies, or
any part thereof, existing when contract was made, does not impair obli-
gation of contract; Billingsf y. Hall, 7 Cal. 10, holding a remedial statute
which operates to take away a right is void; dissenting opinion in Aycock
V. Martin, 37 Ga. 179, involving constitutionality of "stay laws"; Bruce
V. Schuyler, 4 Gilm. 277, 46 Am. Dec. 459, dissenting opinion in Scobey v.
Gibson, 17 Ind. 578, dissenting opinion in Kennebec Ry. Co. v. Portland
Ry. Co., 59 Me. 73, arguendo; Grimes v. Brjoie, 2 Minn. 96, although case
holds an exemption law intended to operate on debts contracted before
its passage, operates only on remedy and is constitutional; also, King v.
Hopkins, 57 N. H. 353, 354; McLaren v. Pennington, 1 Paige Ch. 108, dis-
senting opinion in People v. Draper, 15 N. Y. 563, Eakin v. Raub, 12
Serg. & R. 366, dissenting opinion in Satterlee v. Matthewson, 16 Serg. & R.
185, Smith v. Elliott, 39 Tex. 211, arguendo.
Distinguished in New Orleans v. Morris, 105 U. S. 603, 26 L. Ed. 1185,
holding, under facts, there was no impairment of obligations; Connecticut
Ins. Co. V. Cushman, 108 U. S. 65, 27 L. Ed. 653, 2 Sup. Ct. 245, statute
did not affect agreement ; Ex parte Pollard, 40 Ala. 88, holding statute com-
plained of does not affect obligation ; also cited in dissenting opinion, same
case, pp. 102, 105; Colorado Springs Co. v. Cowell, 6 Colo. 79, holding
remedy is not affected; Watkins v. Glenn, 55 Kan. 431, 40 Pac. 319, objec-
tionable statute did not have retroactive effect; Tompkins v. Forrestal,
54 Minn. 125, 55 N. W. 814, which deals with method of procedure only;
State V. Gilliam, 18 Mont. 107, 81 L. R. A. 726, 44 Pac. 399, statute enlarg-
ing redemption time of mortgagee becomes purchaser; State v. Griffin, 66
N. H. 328, 29 Atl. 415, where right to trial by jury was held not to be
affected by statute relating to; Chadwick v. Moore, 8 Watts & S. 50, 51,
42 Am. Dec. 268, 269, holding statute which suspends remedy for reason-
able time does not impair contract to such a degree as to be objectionable;
Longbine v. Piper, 70 Pa. St. 380, where construction which would impair
riglit was denied; Ex parte Penniman, 11 R. I. 346, holding repeal of
statute providing stockholders are liable to arrest on execution issued on
judgment against corporation, does not impair contract, but affects remedy
merely; Fleming v. Holt, 12 W. Va. 167, holding statute providing that
interest shall be allowed on judgments from date rendered, does not affect
the contract; Von Baumbach v. Bade, 9 Wis. 591, holding a ** mortgage
stay law" affects the remedy only.
Constitutionality of stay laws. Note, 6 Am. Dec. 540.
Retrospective rights. Note, 10 Am. Dec. 135, 136.
Retroactive statute creating right of action or setoff. Note, 52 L. R. A.
937.
Agreement "between creditor and debtor to alter tenoB of contract releases
surety.
Cited in Dey v. Martin, 78 Va. 4, following rule*
1199 GREEN v. BIDDLE. 8 Wheat. 1-108
Consent of Congress to compacts between States, how Indicated.
Approved in Wedding v. Meyler, 192 U. S. 582, 583, 48 L. Ed. 574, 24
Sup. Ct. 323, 324, holding under Virginia compact of 1789, and act of
Congress of Fehruary 4, 1791, making Kentucky a State, Indiana has con-
current jurisdiction, including right to serve process, with Kentucky on
Ohio river, opposite its shores below low-water mark; State v. Cunning-
ham, 102 Miss. 243, Ann. Cas. 1914D, 182, 59 South. 78, holding consent
of Congress to agreement between States could be made by resolution;
Wharton v. Wise, 153 U. S. 173, 88 L. Ed. 676, 14 Sup. Ct. 788, where Con-
gress adopted award of commissioners which had previously been ratified
by States interested in.
Compact of 1789 between Virginia and Kentucky is not invalid on ground
of surrendering inalienable rights of sovereignty.
Approved in Kentucky Union Co. v. Kentucky, 219 U. S. 162, 163, 164,
55 L. Ed. 158, 159, 31 Sup. Ct. 171, holding Virginia-Kentucky compact of
1789 does not render holders of Virginia grants immune from Kentucky
laws in regard to taxation or registration; Eastern Kentucky Coal Lands
Corp. V. Commonwealth, 127 Ky. 691, 706, 106 S. W. 267, 272, holding
act of 1906 relating to taxation of land did not violate compact.
Powers of legislation granted to government of the United States, as well
as to State governments, are limited.
Cited in Campbell v. State, 11 Ga. 370, holding amendments to Constitu-
tion of United States are restrictions on State legislation as well as Fed-
eral; dissenting opinion in Luther v. Borden, 7 How. 66, 12 L. Ed. 609,
arguendo.
•
Taking property acquired under contract for public use does not impair
contract.
Cited in Piscataqua Bridge v. Bridge, 7 N. H. 68, arguendo.
Contract is the agreement of two or more persons to do or not to do certain
acts.
Cited in State v. Mayor of New Orleans, 32 La. Ann. 71G, and Fisk v.
Police Jury, 34 La. Ann. 45, following rule.
/ __
Supreme Court has jurisdiction to declare State law impairing obligation
of contract void.
Cited in Pennsylvania v. Wheeling Bridge Co., 13 How. 566, 14 L. Ed.
269, following rule.
Distinguished in Charles River Bridge v. Warren Bridge, 11 Pet. 582,
9 L. Ed. 838, where action of State Was not directly on contract.
Prohihition against State laws impairing obligation of contract, embraces
all contracts.
Cited in Pollard's Heirs v. Kibbe, 14 Pet. 413, 414, 10 L. Ed. 619, 620,
where claims under Spanish grants and treaties were determined ; dissenting
opinion in Louisiana v. Jumel, 107 U. S. 750, 27 L. Ed. 462, 2 Sup. Ct 160,
8 Wheat. 1-108 NOTES ON U. S. REPORTS. 1200
and opinion of majority in Poindexter v. Greenhow, 114 U. S. 286^ 29 L. Ed.
191, 5 Sup. Ct. 912, where State impaired her own contracts with creditors ;
New Orleans Gas Co. v. Louisiana Co., 115 U. S. 673, 29_L. Ed. 524, 6 Sup.
Ct. 264, where State, having granted exclusive franchise, enacted law under
which companies 'could be organized which wonld impair value of franchise;
dissenting opinion in In re Ayers, 123 U. S. 515, 31 L. Ed. 233, 8 Sup. Ct.
188, majority distinguishing the case and deciding it on other grounds;
Hancock v. Walsh, 3 Woods, 363, Fed. Cm. 6012, where State of Texas
attempted to annul one of the' conditions contained in resolution of an-
nexation; Mutual Life Ins. Co. v. Richardson, 77 Fed. 398, where statute
changed place of payment of contract; Willis v. Cadenhead, 28 Ala. 474,
holding statute of succession and distribution cannot affect separate estate
of married woman created by deed before enactment of statute; McElvain
V. Mudd, 44 Ala. 63, 4 Am. Rep. 117; Calhoun v. Calhoun, 2 S. C. 301, where
State ordinance provided all contracts should be void, where consideration
was slaves or Confederate bonds; Micou v. Tallassee Bridge Co., 47 Ala.
656, holding act incorporating persons to build toll-bridge creates a contract
which cannot be impaired by another grant; State v. County Court of
Crittenden County, 19 Ark. 364, 373, where purchase of land from State
under State law was held to be a contract and within constitutional inhibi-
tion; Leach v. Smith, 25 Ark. 252, where statute provided contracts to be
paid in Confederate money should be paid in United States currency; En-
field Bridge Co. v. Connecticut Co., 7 Conn. 48, where State granted fran-
chise to company which infringed rights granted to another company;
Bailey v. Philadelphia Ry. Co., 4 Harr. (Del.) 401, 44 Am. Dec. 603, where
right of action was given for authorized acts already performed; Yonng y.
Harrison, 6 Ga. 154, 156, where legislature passed act annulling charter
granted; Winter v. Jones, 10 Ga. 196, 64 Am. Dec. 382, holding an act,
providing for resale of lands which had been sold under prior act, void ; Ay-
cock V. Martin, 37 Ga. 135, 150, 92 Am. Dec. 64, where statute provided for
staying execution on certain contracts; Bruce v. Schuyler, 4 Gilm. 276,
46 Am. Dec. 458, where legislature repealed that portion of statute provid-
ing for execution of conveyance by officer making sale for taxes ; Edwards
V. Jagers et al., 19 Ind. 413, where State Constitution impaired grant of
corporate powers; Canal Co. v. Railroad Co., 4 Gill & J. 129, 146, where
State sought to impair compact entered into with corporation and another
State; dissenting opinion in Common Council v. Assessors, 91 Mich. 116,
16 L. R. A. 79, 51 N. W. 799, inhibition covers act permitting, as to prior
mortgages, mortgagor's property to be seized to pay tax of mortgagee;
State V. Young, 29 Minn. 525, 9 N. W. 739, applying principle to constitu-
tional amendment impairing obligation of State's executory contracts;
State V. Fiy, 4 Mo. 132, applying principle to marriage contract; State v.
Branin, 23 N. J. L. 500, to charter of a corporation; United Ry. Co. v.
Commissioner, 37 N. J. L. 251, to government land grant; Hawkins v.
Barney, 5 Pet. 465, 8 L. Ed. 193, holding further as to what l^islation will
be construed as carrying out the compact of 1789 between Vii^inia and
Kentucky; Camblos v, Philadelphia, 4 Fed. Cas. 1106, further as to what
1201 GREEN V. BIDDLE. 8 Wheat. 1-108
legislative grants will be considered contracts; Silliman v. Hudson Bridge
Co., 4 Blatchf. 411, Fed. Cas. 12,852, where power of State to restrict
privileges granted in license is discussed; dissenting opinion in Dale v.
Governor, 3 Stew. 418, 424, majority holding it within power of legislature
to repeal a private act conRrming military title, and settling annuity;
Craig v. Flanagin, 21 Ark. 323, upholding act of 1857 relating to actions to
quiet title; Lawson v. Je&ies, 47 Miss. 707, 12 Am. Bep. 855, as to power
of constitutional convention; Chenango Bridge Co. v. Bingjiamton Co., 27
N. Y. 92, but under facts no impairment of contract; Mexican Ry. Co. v.
Mussette, 86 Tex. 715, 24 L. B. A. 644, 26 S. W. 1077 ; dissenting opinion
in Antoni v. Greenhow, 107 U. S. 803, 27 L. Ed. 481, 2 Sup. Ct. 119,
arguBido.
Distinguished in Pennsylvania v. Wheeling Bridge Co., 18 How. 432, 433,
15 L. Ed. 488, where compact was avoided by act of Congress ; In re Owens,
6 Biss. 434, Fed. Cas. 10,632, where perfected lien was avoided by national
bankruptcy law; dissenting opinion McElvain v. Mudd, 44 Ala. 76, obliga-
tion was avoided by act of national government; Stone v.'Gazzam, 46 Ala.
275, where act complained of affected status of married women, although
transaction attacked was effected after passage of act; Trustees v. Rider,
13 Conn. 96, holding legislative act, importing a contract executory, depend-
ing on further action of legislature for its execution, could not impose
obligation capable of being impaired ; In re Lee & Co., 21 N. Y. 14, holding
statute did not impair obligation of charter contract, because of reserve
right to alter and amend.
Kentucky act of January 31, 1812, concerning occupying claimants of land
violates compact between Kentucky and Virginia.
Approved in dissenting opinion in Coyle v. Smith, 28 bkl. 225, 230, 233,
113 Pac. 986, 988, 989, majority holding act locating State capital not void
on account of provision of enabling act for temporary location of capital
till 1913; dissenting opinion in Coyle v. Smith, 28 Okl. 184, 113 Pac. 970,
majority holding act locating State capital not void on account of provision
of enabling act for temporary location of capital till 1913; McKinney v.
Carroll, 12 Pet. 69, 9 L. Ed. 1003, arguendo ; Beard v. Smith, 6 T. B. Mon.
517, and Clark's Heirs v. Gates, 5 J. J. Marsh. 315, in both of which the
court seems to take a contrary view; Gaines v. Buford, 1 Dana (Ky.), 495,
512, arguendo.
Distinguished in Coyle v. Smith, 221 U. S. 577, 55 L. Ed. 862, 31 Sup. Ct.
688, holding Congress in admitting State could not limit its power to change
its seat of government ; Coyle v. Smith, 28 Okl. 159, 160, 171, 172, 113 Pac.
960, 965, holding act locating State capital not void on account of provision
of enabling act for temporary location of capital till 1913; Uhl v. Grissom,
12 Okl. 325, 72 Pac. 373, upholding occupying claimant's act of 1893;
Fisher v. Cockerill, 5 T. B. Mon. 133, where question of compact between
two States was not involved.
Denied in Bodley v. Gaither, 3 T. B. Mon. 58, 59.
Amicus curiae. Note, Ann. Oas. 1915A, 198.
Effect of part performance of lease. Note, 15 £, R. 0. 415*
1—76
/
8 Wheat. lOS-217 NOTES ON U. S. REPORTS. 1202
Miscellaneous. Cited in Northern Securities Co. v. United States, 191
U. S. 556, holding leave to file brief by counsel having similar case has been
liberally exercised in Supreme Court; Will v. Ritchie, 61 Kan. 718, 60 Pac.
735, holding holder of tax deed in possession is liable to owner for rents
accruing during pendency of action to quiet title by holder of tax deed
against owner when tax deed is invalid; Noble v. CuUom, 44 Ala. 583, as to
right of Federal government to determine as to effect to be given laws
and judgments of States not organized under the Constitution ; Howard
V. Jonesy 50 Ala. 69, and Watson v. Rose, 51 Ala. 300, to effect that
laws in force at time of making contract enter into it and form part
thereof ; dissenting opinion in Bellamy v. Bellamy, 6 Fla. 121 ; Farves* Heirs
V. Graves, 4 Smedes & M. 711, not in point; State v. Central Pacific Ry. Co.,
2.1 Nev. 103, 25 Pac. 444, not clear to what point cited; as also in Phaelon
V. Perman, 2 McCord Ch. 431, and Oakley v. Hibbard, 2 Pinn. 22, 52 Am.
Dec. 140; Cherokee Nation v. Georgia, 5 Pet. 47, 8 L. Ed. 41, to point that
sovereignty devolved upon the States by the Revolution.
8 Wlieat. 108-174, 5 I*. Ed. 674, LA NESEYDA.
Not cited. -. -^
8 Wheat. 174-217, 6 L. Ed. 689, HUNT ▼. BOUSMANIEBw
Power of attorney may, in general, be revoked by party giving It, at any
time, and is revoked by Ills death.
Approved in Spacy v. Evans, 152 Ind. 432, 52 N. E. 605, holding license
to go on land and remove trees is revoked by death of licensor before execu-
tion ; Mosnat v. Berkheimer, 158 Iowa, 180, 139 N. W. 470, holding authority
of agent to sell, not coupled with interest revocable at any time, though
contract fixed time for its own termination; Muth v. Goddard, 28 Mont.
253, 72 Pac. 626, holding where trust deed as security for debt authorizes
trustee to sell after default, the attorney has power to sell after grantor's
death; Raleigh Real Estate & Trust Co. v. Adams, 145 N. C. 164, 58 S. E.
1009, applying rule to agency to sell realty ; Gaston v. Gaston, 80 S. C. 163,
61 S. E. 396, holding promise to reimburse for notes taken up not effective
as to notes taken up after death of promisor ; Divine v. MJller, 70 S. C. 228,
106 Am. St. Rep. 743, 49 S. E. 480, where creditor collects proceeds of col-
lateral after death of debtor, payment of same on note of debtor does not
arrest limitations; Nichols v. Waukesha Canning Co., 195 Fed. 815, 816,
arguendo; Eagleton Co. v. Bradley Co., 18 Blatchf. 223, 2 Fed. 779, where
attorney acted for grantor after grantor's death ; Lockett v. Hill, 1 Woods,
563, Fed. Cas. 8443, where rule was applied where grantor became bank-
rupt ; Young Co. v. Young Co., 72 Fed. 64, and Patton v. Coen etc., 3 Colo.
270, where grantor revoked power; Saltmarsh v. Smith, 32 Ala. 408, and
Travers v. Crane, 15 Cal. 18, holding deed given by attorney after death
of grantor of power, is void ; dissenting opinion in Janin v. Browne, 59 Cal.
47; Cully v. Bloomingdale, 68 Ga. 759, where power granted in mortgage
to mortgagee to sell equity of redemption was held revoked by death of
mortgagor; Lewis v. Kerr, 17 Iowa, 76, 77, and Vance v. Anderson, 39 Iowa,
430, where power to sell real estate in name of principal was held to be
without interest therein, and revoked by death of principal; Smith v.
1203 HUNT V. ROUSMANIER. 8 Wheat. 174-217
Minnesota Ry. Co., 30 Iowa, 249, where power to procure donations and
right of way, agent to receive a share of donations, was held to be with-
out interest and revocable at will of principal; Alworth v. Seymonr, 42
Minn. 528, 44 N. W. 1030, holding power revocable ^ where agent was to
receive share of results of execution of agency; Temple v. Hammock, 52
Miss. 359, holding acts of agency performed by agent after death of prin-
cipal are void ; Burke v. Priest, 50 Mo. App. 313, holding agreement to turn
over books to agent for collection of claims at a given per cent does not
give agent such an interest in claims as to prevent revocation; Berry v.
Potter, 52 N. J. Eq. 668, 29 Atl. 325, where license was held revoked on
licensor becoming insane ; Weber v. Bridgman, 113 N. Y. 605, 21 N. E. 987,
holding payments made to agent after death of principal do not bind estate
of principal; Blackstone v. Buttermore, 53 Pa. St. 268, holding principal
may revoke power of agent to sell real estate, even though he had agreed
the authority was irrevocable; Huston v. Cantril, 11 Leigh, 173, where
agent 's special power to sell principal 's property and apply proceeds arising
therefrom to liquidation of principal's debts was held revoked by death of
principal; Herring v. Lee, 22 W. Va. 667, holding, where principal cannot
act, the disqualification extends to his deputy or agent; United States v.
Cutts, 1 Sumn. 140, Fed. Cas. 14,912; Lockart v. Forsythe, 49 Mo. App.
657; Cleveland v. Williams, 29 Tex. 215, 94 Am. Dec. 280, and Michigan
Bank v. Leavenworth, 28 Vt. 217, arguendo.
Distinguished in Parke v. Frank, 75 Cal. 368, 17 Pac. 428, where, for
consideration, principal agreed not to revoke for reasonable time; White
V. Stephens, 77 Mo. 454, where power of sale was conferred on ttustee
by terms of deed; Morgan v. Gibson, 42 Mo. App. 242, where death of
principal was held not to annul contract to pay agent for services on re-
covery in pendihg suit, which was maintained by agent ; Mclntire v. Morris,
14 Wend. 95, where power had been fully executed before death of prin-
cipal, the only matter undetermined being the aniount of agent's compensa-
tion.
Modified in Cassiday v. McKenzie, 4 Watts & S. 285, 89 Am. Dec. 79,
holding acts of agent are binding until he has knowledge of principal's
death.
Revocation of power of attorney. Note, 110 Am. St. Rep. 856, 857,
858, 859, 860.
Wlien power of attorney forms part of contract and is security for per-
formance of any act, It is deemed irrevocable in law.
Approved in Bennett v. Laws, 59 Colo. 293, 149 Pac. 440, holding deed
executed in his own name by one holding power of attorney to convey for
his own use was deemed in execution of power and valid; Day v. Candee,
7 Fed. Cas. 236, where grantor bound himself for consideration not to
change his will ; Ray v. Hemphill, 97 Ga. 565, 566, 25 S. E. 4#6, where mort-
gagor conferred on mortgagee power of sale; Mutual Loan Co. v. Haas,
100 Ga. 115, 62 Am. St. Rep. 318, 27 S. E. 980, holding further, power
is not affected by judgment rendered against mortgagor in favor of another
creditor; McGheehen v. Duffield, 5 Pa. St. 499, holding submission to a final
reference in consideration of discontinuance of proceedings in chancery
8 Wheat. 174r-217 NOTES ON U. S. REPORTS. 1204
for an account is irrevocable ; Smith Co. v. McGuinness, 14 R. I. 61, holding*
an irrevocable power of attorney to collect rents, given as security for
money loaned, is between the parties an equitable mortgage of the rents;
Montague v. McCarroU, 15 Utah, 325, 49 Pac. 420, power to enter land on
soldier'^ scrip, and to sell same after entry, given for valuable considera-
tion, is irrevocable; Heath v. Griswold, 18 Blatchf. 560, 5 Fed. 577, Amer-
ican Trust Co. V. killings, 58 Minn. 190, 59 N. W. 998, Terwilliger v.
Ontario etc. R. Co., 149 N. Y. 94, 95, 43 N. E. 435, and Fraser v. Charleston,
11 S. C. 520, arguendo.
Distinguished in Oregon & W. Bank v. Mortgage Co., 13 Sawy. 265, 35
Fed. 25, where there was stipulation providing authority might be re-
voked.
Effect of provision against revocation of power of attorney. Note,
6 L. B. A. (N. S.) 856.
Irrevocability of authority coupled with an interest. Note, .16 E. B. 0.
805.
Mere naked power confers on attorney power only to act for and In name
of party who grants it.
Cited in The Perseverance, Blatchf. & H. 388, 389, Fed. Cas. 11,017, where
attorney sought to maintain suit in character of owner.
Power coupled with an Interest snrviYes the person giving it and may be
executed after his death.
Approved in In re E. T. Kenney Co., 136 Fed. 453, where several cred-
itors of insolvent corporations before bankruptcy proceedings were in-
stituted assigned claims to committee, latter entitled to prove all claims
against estate of one of corporations in bankruptcy as one claim; Griffith
V. Maxfield, 66 Ark. 522, 51 S. W. 835, holding deed declaring a trust in
which it is recited that g)rantor reserves right to sell and convey at any
price he may deem advantageous is power coupled with an interest and is
not revoked by death of beneficiary ; Willingham v. Rushing, 105 Ga. 76, 77^
31 S. E. 131, 132, holding power of factor who has made advances to his
principal, or incurred expenses in taking care of his property to sell prop-
erty to reimburse himself, is not revoked by death of principal; Smith v.
Dare, 89 Md. 51, 42 Atl. 910, holding power of attorney to attend to a
farm, collect rents, etc., but not to advance any rent before due, may be
revoked at will; Fisher v. Southern Home & Trust Co., 138 N. C. 99, 50
S. E. 595, in order that power of attorney survive death of donor, it is not
enough that interest be in proceeds of thing or that it be irrevocable during
life of donor; Warren v. Pine, 65 N. J. Eq. 53, 55 Atl. 73, holding stock-
liolder could revoke voting trust created in committee for reorganization of
insolvent corporation; Taylor v. Benham, 5 How. 272, 13 L. Ed. 149, where
executors unddr will were empowered to sell lands of testator, held by him
in trust; Jacquet v. Creditors, 38 La. Ann. 867, like rule applies in case of
bankruptcy of principal; Renshaw v. Creditors, 40 La. Ann. 40, 3 South.
404, holding power of sale giyen to pledgee gives an interest which causes
power to survive principal's bankruptcy; Berry v. Skinner, 30 Md. 573,
1205 HUNT V. ROUSMANIEJl. 8 Wheat. 174-217
and Reilly v. Phillips, 4 S. D. 611, 57 N. W. 782, where power of sale given
mortgagee was held to create in him an interest in mortgaged premises;
Diekinson v. Bank, 129 Mass. 283, 37 Am. Bep. 353, where power of sale
of shares of 'stock given as security for debt was held to create interest
therein so that power was not affected by bankruptcy of principal ; Knapp
V. Alvord, 10 Paige, 209, 40 Am. Dec. 243, holding possession of property
connected with power for protection and indemnity of agent gives agent an
interest so that power survives death of principal; Hess v. Rau, 95 N. Y.
363, where power of broker to manage stock for customers was held, under
facts, not to be revoked by death of principal ; Sulphur Co. v. Thompson, 93
J Va. 312, 313, 315, 25 S. E. 235, 236, power granted to trustee to convey
in his own name, gives interest, so that power survives death of grantor;
McNeill v. McNeill, 43 W. Va. 768, 28 S. E. 718, holding deed executed and
delivered to grantee, although intended as power to sell, gives grantee in-
terest, so that power survives death of grantor; Metcalf v. Hart, 3 Wyo.
532, 31 Am. St. Bep. 140, 27 Pac. 907, as authority for holding license
coupled with interest is not revoked by conveyance of realty to which it
relates ; Bonney v. Smith, 17 111. 533, and Powers v. Harlow, 53 Mich. 514,
51 Am. Rep. 159, 19 N. W. 259, as bearing on question of right of principal
to revoke power coupled with interest; Michigan Bank v. Leavenworth, 28
Vt. 217, Michigan Ins. Co. v. Leavenworth, 30 Vt. 24, and Huston v. Cant-
rill, 11 Leigh, 167, as bearing on doctrine of law in relation to the deter-
mination of authority by death of person from whom it emanates.
Distinguished in Jeffersonville Assn. v. Fisher, 7 Ind. 702, on ground that
agent had no interest.
Power coupled with interest not revoked by principal's death. Note,
39 Am. Dec. 82, 83.
Effect on contract of party's death. Note, 23 L. R. A. 710.
To constitnte power coupled with interest there must be Interest In thing
itself and not merely In execution of power.
Approved in Crowe v. Trickey, 204 U. S. 240, 51 L. Ed. 460, 27 Sup. Ct.
275, and Taylor v. Burns, 203 U. S. 126, 51 L. Ed. 119, 27 Sup. Ct. 40, both
holding power to sell was not coupled with an interest; Curtis v. Walpole
Tire & Rubber Co., 218 Fed. 148, 134 C. C. A. 140, holding contract was
equitable assignment of fund vesting claimant with power coupled with
interest; Wheeler v. Hartford Life Ins. Co., 227 Fed. 372, holding con-
tract of insurance company with agent for certain territory, to be paid
in commissions, was revocable by withdrawal of company from territory;
Moore v. Security Trust etc. Ins. Co., 168 Fed. 499, 93 C. C. A. 652, hold-
ing agents of insurance company did not have power coupled with interest
which gave them cause of action when company terminated agency; Pacific
Coast Co. V. Anderson, 107 Fed. 975, holding where corporation charter-
ing vessel from agent of owners, and granting agent power to collect
• freight to become due, and apply same in payment of ship's disburse-
ments, an irrevocable power was executed; Daniel v. Felt, 100 Fed. 729,
holding where property is conveyed to married woman in trust for grantee
and children^ with power of side, a conveyance by grantee and husband
8 Wheat. 174-217 NOTES ON U. S. REPORTS. 1206
without reference to power in deed of trust conveys only her interest;
Rufe V. Commercial Bank, 99 Fed. 653, 654, holding instrument executed
by judgment creditor to his counsel, giving irrevocable power of attorney
to collect judgment and after retaining his fee pay claim of third person,
operated as an assignment of the judgment; Hall v. Gambrill, 92 Fed. 37,
holding power to sell land, and authorizing agent to retain certain per-
centage for commission, does not make it one coupled with an interest;
Trickey v. Crowe, 8 Ariz. 184, 71 Pac. 968, holding authority to sell mine
was not coupled with interest; Cox v. Hughes, 10 Cal. App. 558, 102 Pac.
958, holding power of attorney to assign future earnings to pay debt was
coupled with interest and could not be revoked till debt was discharged;
Frink v. Roe, 2 Cal. Unrep. 495, 7 Pac. 484, holding power to convey recit-
ing consideration did not give power coupled with interest; Jacksonville
Term. Co. v. Smith, 67 Fla. 16, 64 South. 356, holding power of attorney
to settle personal injury claim giving him portion of settlement for his
services was not power coupled with interest; W. W. Gordon & Co. v.
Cobb, 4 Ga. App. 50, 60 S. E. 822, holding consignment to factor for sale
and advances made thereon created power coupled with interest; Cooley
V. Kelley, 52 Ind. App. 698, 96 N. E. 642, holding devise to trustees to
pay income to beneficiary, with discretion to pay principal, was power
coupled with interest and survived death of one trustee; Schilling v.
Moore, 34 Okl. 156, 125 Pac. 487, and Chase v. Chapman, 89 Kan. 200, 131
Pac. 616, both liolding agency to sell land and receive all of price above
fixed sum was not coupled with interest; Dixon v. Dixon, 85 Kan. 386, 387,
388, 116 Pac. 888, 889, holding deed of trust to use and dispose of land
by will in certain events gave power coupled with interest not revoked
by death of grantor; Black v. Harsha, 7 Kan. App. 795, 54 Pac. 22, to
constitute agency coupled with interest, both agency and interest must
come from same source; Louque v. Dejan, 129 La. 526, 38 L. R. A. (N. S.)
394, 56 South. 429, holding power of attorney employed for indefinite time
on contingent compensation was revocable at will of client; Mills v. Smith,
193 Mass. 16, 6 L. R. A. (N. S.) 865, 78 N. E. 767, holding such power not
created by contract to take entire charge of lands and receive half of pro-
ceeds of sales; Scott v. Travelers' Ins. Co., 103 Md. 78, 63 Atl. 380, con-
struing insurance agent's contract for commissions on renewals; Clark v.
Welch, 154 Mich. 543, 118 N. W. 139, on transfer for value of right to
locate public land as additional homestead, power given to transferee to
make transfer effectual was coupled with interest and not revocable;
Weaver v. Richards, 144 Mich. 408, 413, 6 L. R. A. (N. S.) 856, 108 N. W.
389, holding power to convey, providing it should be irrevocable by death,
was not coupled with interest, and was revoked by death of certain gran-
tors; Citizens' State Bank v. E. A. Tessman & Co., 121 Minn. 40, 45 L. R. A.
(N. S.) 606, 140 N. W. 180, holding bank taking checks for collection to
make up overdrawn account had power to sue makers on checks, payment
having been stopped by maker; State v. District Court, 30 Mont. 12, 75
Pac. 518, guardian may substitute attorney for one who represented ward
prior to guardian's appointment, though fees due former attorney not
paid; Hunter v. Mutual Reserve etc. Ins. Co., 184 N. Y. 145, 76 N. £. 1074,
1207 HUNT V. ROUSMANIER. 8 Wheat. 174- 217
•
provisions in statnte authorizing foreign insurance company to do busi-
ness on execution of power to insurance commissioner, irrevocable while
liabilities remain outstanding, does not prevent revocation as to nonresi-
dent policy-holders-5 Abbott v. Hunt, 129 N. C. 405, 40 S. E. 120, holding
where land owner authorizes agent to sell property if price would net
certain sum, owner may terminate agency at will; Durbrow v. Eppens,
65 N. J. L. 16, 46 Atl. 584, holding where iseveral agreed to enter into an
underw];iter's association and employed a common person as agent, author-
izing him to take entire control of the business, and agreeing to deposit
a certain sum of money to cover losses, the agreement was coupled with
an interest and was not revoked by death of one of the parties; Brown v.
SkoUand, 12 N. D. 450, 97 N. W. 545, where one made application for loan
and in application appointed agent to execute note, but died before appli-
cation accepted, power of attorney terminated on death; McKellop v. De-
witz, 42 Okl. 226, 52 L. B. A. (N. S.) 255, 140 Pac. 1163, holding such
power not created by contract to sell lots giving interest in remainder
unsold after enough were sold to pay mortgage debt; Cloe v. Rogers, 31
Okl. 262, 38 L. R. A. (N. S.) 366, 121 Pac. 204, holding such power created
by contract of agency for fixed time involving expense on part of agent
to carry it into effect; State v. McCafferty, 25 Okl. 10, L. R. A. 1915A,
639, 105 Pac. 994, holding such power not created by contract with county
to assist in discovery of taxable propei;ty for share of taxes; Wood v.
Kerkeslager, 225 Pa. 303, 74 Atl. 176, holding power of attorney to collect ^\
money for principal and others to whom principal therein assigned por- «
tions of ^und was irrevocable ; Halfhill v. Malick, 145 Wis. 209, 129 N. W.
1090, holding power to confess judgment on note was not subject to com-
mon-law .xule that it was invalid if not exercised in year and day, without
proof maker was alive; Walker v. Walker, 125 U. S. 342, 31 L. Ed. 772,
8. Sup. Ct. 931, affirming s. c, 88 Mo. 284, holding statute conferring
authority to prosecute claims of State against United States and receive
a percentage of amount collected for services does not create power coupled
with interest so that power is irrevocable; Lockett v. Hill, 1 Woods, 558,
9 Bank. Reg. 178, Fed. Gas. 8443, in Georgia power of sale in mortgage
is not power coupled with an interest; Lathrop v. Brown, 60 Ga. 315, hold-
ing under laws of Georgia power of sale in a mortgage is not a power
coupled with an interest; Or. & Wash. Bank v. Mortgage Co., 13 Sawy.
265, 35 Fed. 25, where power to loan principal's money and to collect the
interest thereon and to retain commission for services was held not coupled
with an interest; Kahn v. Weill, 14 Sawy. 514, 42 Fed. 712, where power
was given to manage and sell lands; Stier v. Insurance Co., 58 Fed. 845,
and Insurance Co. v. Williams, 91 N. C. 72, 49 Am. Rep. 638, holding right
of insurance agent to commissions on renewal policies does not make his
agency an agency coupled with an interest; Johnson Signal Co. v. Union
Switch Co., 59 Fed. 22, where appointment making claimant sole agent with
power to develop business and negotiate sale thereof was held to create no
interest ; China Ins. Co. v. Ward, 59 Fed. 714, 20 U. S. App. 292, holding
ship's general agent has, presumptively, no maritime or equitable lien or
insurable interest in the vessel; Hall v. Gambrill, 88 Fed. 711, holding
X
8 Wheat. 174-217 NOTES ON U. S. REPORTS. 1208
power to sell land; anthorizing agent to retain part of purchase money as
compensation for his services, not coupled with an interest ; Chambers v.
Leay, 73 Ala. 378, holding, under power to sell land, agreement to give
agent share of proceeds as commission does not give 'him an interest in
land ; Yeates v. Pryor, 11 Ark. 77, 78, power to locate floating timber claims
and to sell and give title thereto cannot be executed after death of prin-
cipal ; Frink v. Roe, 70 '^Cal. 309, 310, 11 Pac. 825, 826, holding power to
sell real estate gives no interest therein unless agent may execute power
in his own name; Norton v. Whitehead, 84 Cal. 268, 271, 18 Am. St. Rep.
176, 177, 24 Pac. 155, 156, holding assignment of accruing moneys, with
power to collect, gives assignee power coupled with interest; Darrow v.
St. George, 8 Colo. 598, 9 Pac. 792, where agreement to share profits as
compensation for services was held to create no interest; Mansfield v.
Mansfield, 6 Conn. 562, 565, 16 Am. Dec. 78» 81, holding power to prose-
cute claims to sell interest recovered and to deduct therefrom compensa-
tion for services, gives no interest in thing itself; McGriff v. Porter, 5 Fla.
380, 381, holding authorization to enter on borrower's premises and sell
slaves in case of default in payment of loan, gives no interest in slaves;
Coney v. Sanders, 28 Ga. 513, fact that agent paid valuable consideration
for power does not give him interest in that to which power relates: Wil-
kins V. McGehee, 86 Ga. 767, 768, 13 S. E. 84, 85, holding power given by
mortgage to sell lands was revoked by mortgagor's death before note fell
due; Walker v. Denison, 86 111. 146, holding power authorizing agent to
dispose of principal's patent right gives agent no interest therein; Rowe
V. Beckett, 30 Ind. 158, 95 Am. Dec. 680, trust deed giving trustee power
to convey in his own name, gives him an interest in the land; Hawley v.
Smith, 45 Ind. 203, and F. L. & T. Co. v. Wilson, 139 N. Y. 287, 36 Am. St.
Rep. 698, 34 N. E. 784, "interest in the proceeds of the thing is not an
interest in the thing itself"; Reed v. Welch, 11 Bush, 460, Attrill v. Pat-
terson, 58 Md. 250, Brown v. Massey, 138 Mo. 531, 38 S. W. 942, and Simp-
son V. Carson, 11 Or. 363, 8 Pac. 326, contingent interest in proceeds aris-
ing from sale of lands gives no interest in lands; Lockart v. Forsythe, 49
Mo. App. 658, 660, holding agreement to run farm on shares was coupled
with an interest and survived; Gardner v. Bank, 10 Mont. 153, 10 L. R. A.
149, 25 Pac. 30, bank's power to apply future deposits on notes for money
borrowed is naked power not coupled with interest; Campbell v. Roddy,
44 N. J. Eq. 247, 6 Am. St. Rep. 892, 14 Atl. 280, holding right of vendor
to take possession and sell on failure* of vendee to make payments does
not give him an inte/est; Ballard v. Insurance Co., 119 N. C. 191, 25 S. E.
957, holding contract of agency with insurance company gave no power
coupled with interest; Carter v. Slocomb, 122 N. C. 477, 65 Am. St, Rep.
715, 29 S. E. 720, holding power of sale in mortgage is coupled with an
interest and survives; White's Appeal, 36 Pa. St. 139, where wife gave
mortgage to creditor of husband and instrument came back fairly into lier
hands without such purpose being accomplished, creditor was held to have
acquired no interest in wife's property; Minors' Appeal, 53 Pa. St.. 214,
91 Am. Dec. 208, where power to collect moneys for principal and retain
percentage for services was held to give no interest therein; Lightner's
1209 . HUNT V. ROUSMANIER. 8 Wlieat. 174-217
Appeal, 82 Pa, St; 305; Yerkes' Appeal, 99 Pa. St. 408, holding instrument
empowering agents to examine into a document purporting to be a will
and to take such action thereon as they might deem expedient, did not
give them an interest in estate of decedent; Johnson v. Johnson, 27 S. C.
316, 13 Am. St. Rep. 642, 3 S. E. 610, power of sale conferred on mortgagee
does not grant an interest ; Fisher v. Fair, 34 S. C. 210, 14 Jj. R. A. 336,
13 S. E. 472, easement in gross gives no interest in land; Reilly v. Phillips,
4 S. D. 611, 57 N. W, 782, and Armstrong v. Moore, 59 Tex. 648, power of
sale conferred on mortgagee does give an interest in mortgaged premises;
Mervin v. Murphy, 35 Tex. 795, holding power to appoint a trustee, who
shall have power to sell and convey title to property given in considera-
tion of debt owed agent does not give agent an interest in property;
Daugherty v. Moon, 59 Tex. 399, attorney who is to receive a share of
judgment for collecting same, has no interest in the judgment; Wells v.
Littlefield, 59 Tex. 562, holding where debtor pledges chattels to creditor
pledgee has an interest in the thing itself which cannot be revoked ; Tinsley
V. Dowell, 87 Tex. 29, 26 S. W. 948, teal estate broker who is to receive a-
certain commission and all he gets above a certain price for making a sale
has not such an interest in the thing itself as entitles him to maintain
action for breach of contract to purchase; Taylor v. Benham, 5 How. 269,
12 L. Ed. 147, discussing distinction between power coupled with trust and
power coupled with interest; Hammond v. Allen, 2 Sumn. 393, Fed. Cas.
6000, Wicks' Heirs v. Rector, 4 Ark. 280, Barr v. Schroeder, 32 Cal. 617,
Schauber v. Jackson, 2 Wend. 54, Terwilliger v. Ontario, 149 N. Y. 92, 93,
43 K. E. 434, and Frederick's Appeal, 52 Pa. St. 342, 91 Am. Dec. 162, as
to meaning of phrase, "power coupled with interest"; Flagstaff Co. v.
Patrick, 2 Utah, 313, holding agent and manager of mining corporation
had no power coupled with interest.
Distinguished in Frank v. Colonial etc. Mtg. Co., 86 Miss. 116, 117, 118,
70 L. R. A. 135, 38 South. 342, power of sale vested in trustee and power of
substitution of new trustee granted to beneficiary in trust are coupled with
interest; dissenting opinion in Weaver v. Richards, 144 Mich. 408, 411,
108 N; W. 387, 388, majority holding power appointing attorney to sell,
providing that it shall be irrevocable and survive death, is not power
coupled with interest.
When power of sale deemed to be coupled with an interest. Note, 50
L. R. A. (N. S.) 632, 633.
Both at law and in equity the general rale is parol testimony is not admis-
sible to vary a written instrument.
Approved in Sprigg v. Bank, 14 Pet. 206, 10 L. Ed. 421, where signer of
note as principal sought to show that he signed as surety ; Warner v.' Brin-
ton, 29 Fed. Cas. 240, as to ^^^^l^^^&tion of testator before or after making
his will; In re Dunham, 8 Fed. Cas. 38, holding parol evidence of agree-
ment in contradiction of receipt of payment of mortgage inadmissible;
Tilghman v. Tilghman, Bald. 489, 492, Fed. Cas. 14,045, where attempt was
made to vary terms of marriage settlement ; Gayle v. Hudson, 10 Ala. 127,
refusing parol evidence in action at law to show that a party different
8 Wheat. 174-217 NOTES ON U. S. REPORTS. 1210
from one signing as obligee on bond was intended to be the obligee; Freed
V. Brown, 41 Ark. 500, holding, in absence of fraud, equity will not permit
parol evidence to show interest of parties for purpose of enforcement of
instrument; Rogers v. Atkinson, 1 Ga. 20; Smith v. Gibbs, 44 N. H. 349,
refusing parol testimony to vary terms of bill of sale; Chestnut Co. v.
Chase, 14 Coim. 133, arguendo.
Distinguished in North American etc. Co. v. Samuels, 146 Fed. 56, admit-
ting parol evidence to show particular kinds and quality of goods sold and
manner of sale where written contract silent with respect thereto; M'Elroy
V. British-American Assur. Co., 94 Fed. 997, holding that insurer holding
policy which provides that concurrent insurance or mortgage shall ayoid
policy, is not prevented from showing that policy was issued with knowl-
edge of existence of concurrent insurance or mortgage; Phillips v. Preston,
5 How. 291, 12 L. Ed. 158, where evidence was offered to prove collateral
contract and not to vary written instrument.
Equity will allow parol to vary written agreement in cases of fraud or
mistake In order to show and carry out Intent.
Approved in American Bonding & Trust Co. v. United States^ 23 App.
D. C. 544, holding case did not present question of equitable relief; Ivinson
V. Button, 98 U. S. 82, 83, 25 L. Ed. 67, 68, where parol testimony was
admitted to explain agreement which written instrument was intended to
put in execution; Fire Ins. Co. v. Wickham, 141 U. S. 576, 35 L. Ed. 866,
12 Sup. Ct. 87, holding parol testimony may be admitted to show contract
was without considieration ; English v. Lane, 1 Port. 349, where parol pjcoo^
was admiited to show that a deed absolute in form was intended as a mort-
gage; Pelangue v. Guesnon, 15 La. 313, admitting parol proof to show
description of a lot in deed was erroneous; in Gibson v. Cook, 2 Blatchf.
147^ Fed. Cas. 5393, arguendo.
Ck>urt8 of equity will afford relief In cases of fraud or mistake In facts.
Approved in Carrell v. McMurray, 136 Fed. 669, 670, reforming deed
to embody actual agreement pade on exchange of farm for stock of mer-
chandise ; Clarke v. Carter, 234 Mo. 106, 109, 136 S. W. 314, 315, granting
relief from mistake by executor and purchaser as to power of executor
under will to sell land; Walden v. Skinner, 101 U. S. 584, 25 L. Ed. 966,
where irregularities in conveyance executed by trustee were corrected in
order to carry out purpose of trust; Rogers v. Atkinson, 1 Ga. 25, holding,
where instrument is drawn to carry into effect oral agreement and which,
by mistake of draftsman, in fact or in law, does not fulfill intention of
parties, equity will correct mistake; Stafford v. Fetters, 55 Iowa, 487, 8
N. W^ 324, where blank indorsement intended to be without recourse was
so construed; Miller v. Aldrich, 31 Mich. 420, where stipulation in mort-
gage, that mortgagor would keep premises insfired for mortgagee's benefit,
was held binding on all others who stood in mortgagor's place with notice;
Massie v. Heiskell, 80 Va. 801, where, by mistake, vendor gpranted more than
vendee bargained for; Bledsoe v. Nixon, 68 N. C. 523, arguendo; Oliver v.
Pray, 4 Ohio, 192, 19 Ahl Dec. 600, equity will grant new trial where
appeal dismissed because by mistake of clerk insufficient bond given.
1211 . HUNT V. ROUSMANIEB. 8 Wheat. 174r-217
Distinguished in Tilghman v. Tilghman, Bald. 492, Fed. Cas. 14,045,
where there was neither fraud nor mistake of facts, but owing to cir-
cumstances not provided for, contract would not carry out intent of
parties ; Burke v. Anderson, 40 Ga. 538, limiting rule to original parties and
their privies in estate or in law.
Reformation of contracts. Not«, 65 Am. St. Rep. 481, 482, 487, 492/
Right to rescind or reform contract on ground of mistake. Note, 22
E. R. 0. 904.
Belief against mistake of law.
Approved in Burke v. Johnson, 146 Fed. 214, where bill to rescind con-
tract for promotion of burial associations under copyrighted by-laws was
based on alleged fraudulent representations, bill could not be sustained by
proof of mutual mistake; Bell v. Mills, 123 Fed. 27, holding power to sell
pledge is conferred by statute in California, and being coupled with an
interest cannot be revoked by death of pledgor; Lawrence County Bank v.
Arndt, 69 Ark. 412, 65 S. W. 1054, holding equity will enforce note against
corporation, signed by president, secretary, treasurer and vice-president,
when all parties meant to bind corporation; Benson v. Bunting, 127 Cal.
537, 78 Am. St. Rep. 85, 59 Pac. 992, holding where both parties believed
redemption from foreclosure sale could be made within twelve months
instead of six months, equity will grant relief; Chapman v. Bates, 61 N. J.
Eq. 665, 88 Am. St. Rep. 465, 47 Atl. 640, holding proxy and power of at-
torney made by stockholder giving voting powers and right to deal with*
the stock, and to sell and exchange it irrevocably for three years, cannot
be revoked; Gross Const. Co. v. Hales, 37 Okl. 138, 129 Pac. 31, holding
equity would relieve from mistake as to effect of language used in con-
tract; dissenting opinion in Atherton v. Roche, 192 111. 266, 61 N. E. 362,
majority holding that in conveyance where the word "her" was used in-
stead of "their"' and grantor knew legal effect thereof, equity will not re-
lieve; Wyche v. Greene, 16 Ga. 59, where instrument intended as a deed
of gift was corrected so as to conform to intent of parties ; Nowlin v. Pyne,
47 Iowa, 295, where writing failed to express in apt and proper terms real
intention of parties; Underwood v. Brockman, 4 Dana, 316, 29 Am. Dec.
413, where party, under misapprehension of law, compromised fraudulent
claim; Lammot v.'Bowly, 6 Har. & J. 525, Griffith v. Townley, 69 Mo. 19,
33 Am. Rep. 481, and Lowndes v. Chisholm, 2 McCord Eq. 463, 16 Am.
Dec. 670, all holding where purchaser and vendee both supposed fee was
being sold, when in fact equity of redemption only passed, equity will
afford purchaser relief; Mellon v. Webster, 5 Mo. App. 454, where a layman
in dealing with a lawyer manifestly did just contrary to what was in-
tended; Green v. Morris, 12 N. J. Eq. 170, where mistake was made by
agent of party who afterward sought to take advantage of it; Moreland v.
Atchison, 19 Tex. 309, where one party, having superior knowledge of law,
took advantage of another, who was confessedly ignorant thereof; Shear
V. Robinson, 18 Fla. 468 , and Oliver v. Pray, 4 Ohio, 194, 19 Am. Dec. 602,
argpiendo; Evants v. Administrator, 11 Ohio, 487, 38 Am. Dec. 745, where
an instrument, through mutual mistake of parties aa to legal effect of terms
8 Wheat. 174r-217 NOTES ON U. S. REPORTS. 1212
used, failed to carry out their intention; Wilson v. Ott, 173 Pa. St. 260,
51 Am. St. Rep. 769» 34 Atl. 26, affirming rule that equity will relieve
against mistake of law ; also Lawrence v. Beaubien, 2 Bail. 652, 23 Am. Dec.
162, holding it immaterial that parties were correctly informed as to the
facts ; Stone v. Brown, 16 Tex. 430, holding where party through ignorance
of the law, failed to present will for probate within statutory time, right
to'letters was not forfeited; Green Bay Co: v. Hewitt, 62 Wis. 334, 21 N. W.
221, and Kyle v. Fehley, 81 Wis. 71, 29 Am. St. Rep. 868/ 51 N. W. 259,
where error in deed, arising from mistake in law, was corrected; Kearney
V. Sascer, 37 Md. 280, proof of mistake must be as conclusive as the
existence of legal right which is sought to be restrained; Gwinn v. Rooker,
24 Mo. 292, arguendo; Crislip v. Gain, 19 W. Va. 477, able discussion of
general subject; Snell v. Insurance Co., 98 U. S. 90, 26 L. Ed. 55, holding
mere mistake of law constitutes no ground for reformation of contract;
Culbreath v. Culbreath, 7 Ga. 69, 74, 50 Am. Dec. 379, 383, holding money
paid under mistake of law may be recovered, but not so if paid under
ignorance of law; Freeman v. Curtis, 51 Me. 143, 81 Am. Dec. 567, where
equity decreed a reconveyance of realty, conveyance having been made
under mistake of fact arising from ignorance of law; Sparks v. Pittman,
51 Miss. 521, equity will afford relief from mistake of law where, through
misapprehension of, deed fails to effectuate agreement ; Champlin v. Laytin,
18 Wend. 414, 423, 31 Am. Dec. 886, 394, McNaughten v. Partridge, 11
Ohio, 234, 88 Am. Dec. 734, and Ellis v. Bibb, 2 Stew. 72, where it is noted
that case is cited as both for and against doctrine that equity jvill afford
relief from mistake of law; Pulliam v. PuUiam, 10 Fed. 73, Fed. Caa.
11,463a , and Ex parte Dixon, 1 Del. Ch. 271, aiguendo ; Broadwell v. Broad-
well, 1 Gill, 606, refusing relief against contract to convey; Tyson v. Pass-
more, 2 Pa. St. 125, 44 Am. Dec. 184, 185, arguendo; McDow v. Brown, 2
S. C. 112, refusing to open account stated; dissenting opinion in Root v.
Stuyvesant, 18 Wend. 299, as to power to consider mistake in law by
testator in reference to statute of wills; Whitaker v. Gavit, 18 Conn. 526,
arguendo ; Champlin v. Laytin, 6 Paige, 196 , s. c, 1 Edw. Ch. 473, g^nting
relief against mortgage for purchase money; Leavitt v. Palmer, 3 N. Y. 39,
51 Am. Dec. 889, refusing to reform, trust deed; Brock v. O'Dell, 44 S. C. 33,
21 S. E. 980, reforming deed where parties intended to convey fee simple
but omitted word * 'heirs''; Zollman v. Moore, 21 Gratt. 323, refusinir to
reform deed for mistake of law; Curtis v. Leavitt, 15 N. T. 163, arguendo.
The following cases cite the principal case as authority for holding no
relief will be afforded from mere mistake of law; Upton v. Tribilcock, 91
U. S. 50, 23 L. Ed. 206, 13 Bank. Reg. 177, where there was contract limit-
ing liability of stockholders, which contract was void; In re Dunham,
8 Fed. Cas. 38, where contract was entered into under mutual understanding
that the law affecting the subject was in accordance with a decision
rendered by Supreme Court, the court afterward reversing itself on the
point ; Washington v. Barber, 5 Cr. C. C. 161, Fed. Cas. 17,224, where action
was brought to recover license fee paid under ignorance of law; Pierson v.
Armstrong, 1 Iowa, 290, 63 Am. Dec. 446, and Holmes v. Hall, 8 Mich. 69,
77 Am. Dec. 445, where parties intended to give a chattel mortgage, bat
1213 HUNT V. ROUSMANIER. 8 Wheat. 174-217
instead a naked power to sell, in case of condition broken, was given;
Wheaton v. Wheaton, 9 Conn. 100, where parol evidence to show mistake
was rejected; Butler v. Livingston, 16 Ga. 568, holding every man is pre-
sumed to know the law.
Distinguished in Norwood v. Louisville etc. R. Co., 149 Ala. 160, 42 South.
685, denying relief from execution on judgment as to which new trial
was granted on day on which court sat under void stfitute; Pickersgill y.
Lahens, 15 Wall. 144, 21 L. Ed. 121, and United States v. Cushman, 2
Sumn. 435, Fed. Cas. 14,908, holding there is no presumption surety in-
tended his obligation to be joint and several with principal and tliat bis
failure to make it so was a mistake of law; Arnold v. Georgia Co., 50 Ga.
310, and White v. Rowland, 67 Ga. 657, 44 Am. Rep. 734, on ground that
injury arose from ignorance and not mistake; Harney v. Charles, 45 Mo.
168, on facts; Clarke v. Dutcher, 9 Cow. 686, holding no relief will be
granted where rent is paid in English currency under mistake as to its
equivalent in currency of the United States ; Moser v. Libenguth, 2 Rawle,
430, arguendo ; Hamer v.-.Price, 17 W. Va. 540, 542, court holding no relief
will be afforded from a plain mistake of law ; Morgan v. Bell, 3 Wash. 573,
674, 16 L. R. A. 621, 28 Pac. 930, 931, holding case not an authority against
maxim "Ignorantia l^s non excusat''; Good v. Herr, 7 Watts & S. 266,
42 Am. Dec. 237, where, mistake was made as to who were heirs at law of
one who died intestate.
Ignorance of laws as ground for relief. Note, 10 Am. Dec. 326, 327.
For what mistakes written instruments may be canceled or corrected in
equity. Note, 117 Am. St. Rep. 239.
Relief from mistake of law as to effect of instrument. Note, 28 L. R. A.
(N. fl.) 809, 877.
When has a broker earned his commission. Note^ 139 Am. St. Rep.
231.
Nature of license. Note, 10 Am. Dec. 41.
Ability of mortgagee under power of sale to make a good title to
the purchaser. Note, 18 £. R. 0. 448, 451.
Miscellaneous. Cited in Treat v. Tolman, 113 Fed. 894, holding provision
in note authorizing attorney at law to appear on behalf of maker and con-
fess judgment is not power of attorney under war revenue act, June 13,
1898; White v. Ferguson, 29 Ind. 149, 64 N. E. 51, holding under Bums'
Rev. Stats. 1901, § 7283i, the right to remonstrate against sale of intoxicat-
ing liquors may be exercised by appointment through power of attorney;
Hunt V. Rousmanier, 3 Mason, 301, 304, Fed. Cas. 6897, same case on re-
hearing in Circuit Court, as to points decided without making application
thereof; Wallace v. Collins, 5 Ark. 48, 39 Am. Dec. 863; Nicodemus v. Pot-
ter, 12 Serg. & R. 158, as bearing on question of liability of su]:pty on bond
who signs as joint obligor; Brownlee's Adm., 2 Spear, 626, as to kinds
of powers of attorney; Battle v. Mack^ 33 Tex. 798; Cato t. Easley, 2
8tew. 221, not in point.
8 Wheat. 217-228 NOTES ON U. S. REPORTS. 1214
S Wheat. 217-22S, 6 K Ed. 000, aOLDSBOBOUOH ▼. OBR.
Where acts itlpulated to be done are to be done at different tlmeB, cove-
nant! are construed as independent.
Approved in Busch v. Stromberg-Carlson Telephone Mfg. Co., 217 Fed.
333, 133 C. C. A. 244, holding breach of covenant to perform certain acts
was no defense to breaoh of another covenant to perform certain other acts
in specified times ; Sj;rauss v. Yeager, 48 Ind. App. 455, 93 N. E. 880, holding
' divisible contract to purchase realty; Loud v. Pomona Water Co., 153 U. S.
578, 38 L. Ed. 828, 14 Sup. Ct. 932, where payment or tender of payment of
purchase price of land was held a condition precedent to the right to compel
conveyance ; Railroad Co. v. Parks, 86 Tenn. 562, 8 S. W. 845, agreement to
pay subscription to stock when road reached county line held independent
of agreement to build depot at particular point in county, although building
depot was condition precedent to payment o^ final installment ; McSherry v.
Brooks, 46 Md. 122, arguendo.
Qualified in Green v. Town of Dyersburg, 2 Flipp. 499, Fed. Cas. 6756,
holding the rule yields to manifest contrary intent and that building of
railroad and payment of municipal bonds in aid therefor were dependent
covenants.
Entirety of contracts — Complete performance, when essential to a
cause of action ex contractu. Note, 59 Am. St. Rep. 279.
Where party agrees to pay specified amount in particular article, if he
refuses to deliver on demand, he loses benefit of that part of contract.
Approved in Greenwood v. Watson, 171 Fed. 621, 96 C. C. A. 421, holding
seller of stocks bound to have them in readiness at time and place appointed
for delivery ; Cook v. Stevenson, 30 Mich. 248, where vendee agreed to give
security for part of purchase price, on failure to do so it was held he lost
the right.
Acts to be done by both parties at same time are deemed mutual and con-
current covenants.
Cited in Tilghman v. Tilghman, 1 Bald. 494, Fed. ^as. 14,045, holding
party who claims remedy for nonperformance must aver and prove perform-
ance, or offer and readiness to perform; to same effect, Neir v. Yocum, 9
Sawy. 25, 16 Fed. 170, where one party had agreed to sell and deliver hops
to another on demand and upon payment of certain price.
Considering intention of parties as deduced from entire instrument in
determining whether doing of particular act is a condition precedent.
Note, 14 E. R. 0. 690.
Under Maryland law attachment will not lie in case ez contractu for
unliquidated damages for nondelivery of goods.
Cited in State v. Steibel, 31 Md. 37, in construction of statute permitting
action against surety on guardian's bond.
In Maryland, if defendant appears for purpose of dissolving attachment^
plaintifT cannot be required to file new declaration.
Approved in Spear v. Grifilin, 23 Md. 429, following role.
1215 SEXTON V. WHE ATON. 8 Wheat. 229-262
8 Wheat. 229-252, 5 L. Ed. 603, SEXTON v. WHEATON.
Acts of grantee not he considered fraudulent unless one complaining
thereof knew of acts and was actually defrauded therehy.
Approved in Flory v. Houck, 186 Pa. St. 268, 40 Atl. 482, holding deed of
settlement by husband on wife otherwise void as against creditors cannot
be sustained by antenuptial agreement; Mi^^iac v. Thompson, 1 Bald. 357,
369, 364, Fed. Cas. 8966, holding both parties to alleged act of fraud must
concur in illegal design and that time intervening between conveyance
and contraction of debt is not a matter which makes conveyance per se a
fraud ; to the same effect, Ashby v. Steere, 2 Wood, & M. 367, Fed. Cas. 576,
and Stockley v. Horsey, 4 Houst. 614, s. c, 4 Del. Ch. 560, where case is
cited in quotation from Magniac v. Thompson, supra; Lyman v. Cessford,
15 iowa, 233, where grantee failed to have deeds recorded, but it was not
shown creditors were aware of this fact; Marston v. Dresen, 85 Wis. 642,
66 N. W. 900, where husband, being indebted, conveyed legal title to wife
who had equitable, it not appearing credit was given husband on such
title, held, conveyance was valid as to then^ •
■
Owner of property may make any disposition of it which does not inter-
fere with existing rights of others.
Approved in National Bank of Commerce v. Appel Clothing Co., 36 Colo.
152, 117 Am. St. Rep. 186, 4 L. B. A. (N. S.) 456, 83 Pac. 966, holding in-
surance policy payable to beneficiaries on death and haying cash surrender
value was not subject to claims of creditors, where insured was not in-
solvent at time contract of insurance was made; McCartney v. Fletcher,
11 App. D. C. 12, holding deeds to wife conveyed beneficial interest; Sabin
V. Chrisman, 79 Or. 196, 164 Pac. 910, upholding assignment for benefit
of creditors, though it hindered some creditofs in collection of demands;
Harkins v. Bailey, 48 Ala. 378, holding bona fide sale of property by in-
solvent to a relation will not be set aside; Marsh v. Richardson, 49 Ala.
433, and Lawson v. Warehouse Co., 73 Ala. 292, only limitation on this
power is that prescribed by statute; Lyles v. Cements, 49 Ala. 449, apply-
ing principle to married woman in ' management of her separate estate;
Rowland v. Plummer, 50 Ala. 196, in determining legality of loan made by
wife to husband ; Braune v. McGee, 50 Ala. 362, where property of intended
wife was conveyed by antenuptial settlement to trustee to hold for her
separate use during coverture; Crawford v. Kirksey, 50 Ala. 595, affirming
tight of insolvent debtor to make conveyance of property to one creditor
in satisfaction of debts owed him; Holleman v. DeNyse, 61 Ala. 99, con-
veyance by husband to wife and children; Sims v. Rickets, 35 Ind. 187,
9 Am. Rep. 683, where husband, free from debt and without children, con-
veyed to wife ; Wilder v. Brooks, 10 Minn. 54^ 57, 88 Am. Dec. 50, 53, vol-
untary settlement on wife; Cosby v. Ross, 3 J. J. Marsh, 290, 20 Am. Dec.
140, conveyance without consideration, but there was no allegation of
fraud ; Miller v. Miller, 17 Or. 434, 21 Pac. 942, holding further as to in-
terest husband retains in property voluntarily settled on wife.
8 Wheat. 229-252 NOTES ON U, S. REPORTS. 1216
Statute 13 Eliz., c. 6, avoids all conyeyances not made on eonaidezation
deemed valuable in law, as against previous creditors.
Approved in Fechheimer v. Hollander, 21 D. C. 80, holding void under
same statute assignment to eertain creditors with intent to defraud other
creditors; McLaughlin v. Bank, 7 How. 228, 12 L. Ed. 679, holding note
not yet due is sufficient to constitute holder a creditor within rule ; Parish v.
Murphree, 13 How. 100, 14 L. Ed. 68, where debtor made voluntary settle-
ment on his wife; Clements v. Moore, 6 Wall. 313, 18 L. Ed. 789, where
conveyance was made to wife indirectly through third person ; Kehr v. Smith,
20 Wall. 35, 36, 22 L. Ed. 315, affirming 2 DHL 59, 60, Fed. Cas. 13,071, where
settlement was made while debts existed and was held to be out of all pro-
portion to means of husband; Bean v. Patterson 122 U. S. 499, 30 L. Ed.
1127, 7 Sup. Ct. 1299, holding where wife is one of husband's creditors, a
conveyance made to her will be deemed to have b\ecn made for valuable
consideration; Miller v. Thompson, 3 Port. 207, and whether void as to
subsequent creditors depends on intent with which conveyance was made;
Hoot V. ^ori^ll, 11 Ala. 398, and Wright v. Campbell, 27 Ark. 645, where
voluntary trust deed was helcTvoid as to creditors; Amett v. CoflEey, 1
Colo. App. 37, 27 P^c. 615, but it must be shown by allegation and proof
that debt to which property is said to be subject existed at time of con-
veyance; Chapin v. Pease, 10 Conn. 73, 25 Am. Dec. 68, where grantee
without consideration sought to reconvey to grantor without consideration,
in order to defraud creditors; O'Brien v. Coulter, 2 Blackf. 424, where
property was conveyed to children at time parent was in insolvent circum-
stances; Iseminger v. Criswell, 98 Iowa, 389, 67 N. W. 291, where wife
was estopped from claiming title to land which her husband had purchased
with her money, but had retained title in himself, on the strength of which
credit had been procured; Hurdt v. Courtenay, 4 Met. (Ky.) 146, voluntary
conveyance of slave held void, husband being indebted at time; Smith v.
Parker, 41 Me. 455, as to conveyance in trust made by one largely in debt ;
Brinton v. Hook, 3 Md. Ch. 480, where deed of trust was made in favor of
grantor; Wood v. Savage, 2 Doug. (Mich.) 326, parol antenuptial promise
to hold money belonging to wife in trust and to invest sajne in real estate
in her name cannot sustain postnuptial settlement as against creditors;
Allen V. Antisdale, 38 Mich. 232, but conveyance to wife, she being a credi-
tor, is deemed to have been made on valuable consideration ; Eddy v. Bald-
win, 23 Mo. 596, holding land conveyed by husband to trustee, to hold for
separate use of wife with intent to defraud creditors, is subject to sale
under execution by husband's creditors ; Carlisle v. Rich, 8 N. H. 48, holding
a surety on an administration bond is a creditor so as to render voluntary
conveyance void; Carter v. Grimshaw, 49 N. H. 105, where father made
settlement of all his property on minor children, at the time being largely
in debt; Mohawk Bank v. Atwater, 2 Paige Ch. 58, fact that grantee was
not privy to fraud is of no etf ect ; Young v. Heermans, 66 N. Y. 381, Vhere
debtor transferred all his property in trust for his own benefit; Thompson
V. Dougherty, 12 Serg. & R. 453, 456, where conveyance is set aside on ac-
count of debts outstanding at time it is made, subsequent creditors will be
let in on property settled; Harlan v. Maglaughlin, 90 Pa. St. 297, stating
further that what is said in Thompson v. Dougherty, supra, as to rights
1217 SEXTON V. WHEATON. 8 Wlieat. 229-262
bi fiubseqaent creditors is obiter dicta; Sumner v. Hicks, 2 Black, 5H, 535,
17 L. Ed. 357, Hiekox v. Elliott, 11 Sawy. 645, 27 Fed. 845, Benton v.
Jones, 8 Conn. 190, and Howe v. Ward, 4 Me. 205, arguendo; Kendall v.
Fitts, 22 N. H. 6, as to when sale is fraud on subsequent creditors ; Farr v.
Sims, Rich. Eq. Gas. 137, 24 Am. Dec. 405, Clement v. Cozart, 112 N. C. 418,
17 S. E. 488, arguendo; Chambers v. Spencer, 5 Watts, 408, 409, as to
meaning of phrase 'indebted at time of making conveyance"; Lockhart v.
Beckley, 10 W. Va. 98, applying rule to deed taken in trust for wife of
debtor by third party; Bank v. Swan, 3 Wyo. 375, 23 Pac. 751, as to pre-
sumption of fraud arising from voluntary conveyance; Seward v. Jackson,
8 Cow. 452, where court questions whetker it was necessary for Supreme
Court to decide point raised by English statute.
Modified in Hopkirk v. Randolph, 2 Brock. 144, Fed. Cas. 6G98, holding
where gift made is comparatively small, though donor afterward becomes
insolvent, court will refuse to set it aside as fraudulent ; Davidson v. Lanier,
51 Ala. 320, holding, if gift is not made with fraudulent intent, it is valid
even as to existing creditors ; Bertrand v. Elder, 23 Ark. 501, 502, voluntary
conveyance by debtor is not conclusive evidence of fraud, holding further
as to what indebtedness will be sufficient grounds for setting aside convey-
ance; Clayton v. Brown, 17 Qa. 220, holding statute does avoid voluntary
conveyances merely as being voluntary, but such as are fraudulent ; Carson
V. Foley, 1 Iowa, 527, voluntary conveyance is not per se fraudulent as to
existing creditors; Stewart v. Rogers, 25 Iowa, 398, 95 Am. Dec. 795,
whether voluntary conveyance will be void in absence of fraud depends on
reasonableness of, and condition of grantor as respects his ability to pay
creditors; Pell v. Treadwell, 5 Wend. 696, where father made settlement
on children on the advice and consent of a creditor who at time had secu-
rity for money due him; Rose v. Brown, 11 W. Va. 137, holding debts of
prior creditors are a charge on premises.
Distinguished in United States v. Bank, 8 Rob. (La.) 403, where con-
veyance was made for benefit of certain creditors.
Voluntary conveyance made witli intent to deftavd subseiiiient eredttors
will be set aside.
Approved in McDonald v. Dewey, 202 U. S. 529, 50 L. Ed. 1186, 26 Sup.
Ct. 731, one who with knowledge of insolvency of national bank transfers
stock to irresponsible vendee with intent to evade liability for debts of
bank is liable only for unsatisfied debta existing when fraudulent transfer
made; Bush & Mallett Co. v. Hilbing, 134 Cal. 678, 66 Pac. 967, holding
prima facie case of fraud is made by showing that grantor had secret
unrecorded deed to his wife and remained in possession, and wife knew
that material was being furnished by plaintiff and said nothing; Foster v.
McAlester, 3 Ind. Ter. 319, 58 S. W. 684, holding facts warranted verdict
that mortgage was fraudulent as to creditors; Beith v. Porter, 119 Mich.
370, 78 N. W. 337, holding under 2 How. Ann. Stats., § 5884, providing for
setting aside fraudulent conveyances by deceased, that statute authorized
administrator to recover property paid for by deceased, but title to which
was in wife, is fraud, of creditors; Orr v. Peters, 197 Pa. St. 614, 47 Atl.
1—77 '
8 Wtfeat. 229-252 NOTES ON U. S. REPORTS, 1218
850, holding prima facie case of fraud is shown when it appears that P. and
S. were jointly interested and that S. advanced money as his share, und
the same was not to be returned; Eg^leston v. Sheldon, 85 Wash. 431, 148
Pac. 578, holding in action to set aside conveyance taken in good faith
grantee was necessary party; Graham Grocery Co. v. Chase, 75 W. Va. 780,
84 S. E. 787, holding husband's conveyance of practically all his property
to his wife was fraudulent and void; Caller v. McNabb, 4 Fed. Cas. 1075,
where conveyance was made without consideration on eve of contracting
debt ; Burdick v. Gill, 2 McCrary, 488, 7 Fed. 670, fraud will be presumed
when voluntary conveyance to wife is followed within short time by fraudu-
lent disposition of remaining property; Driggs v. Norwood, 50 Ark. 46, 7
Am. St. Rep. 81, 6 S. W. 324, voluntary conveyance is not per se fraudu-
lent as to subsequent creditors; Rudy v. Austin, 56 Ark. 81, 36 Am. St.
Rep. 88, 19 S. W. 113, where means of subsequent creditors were used to
pay off debts of prior creditors; Plunkett v. Plunkett, 114 Ind. 488, 16
N. E. 614, where property was conveyed by deed of trust in order to defeat
wife's claim for alimony; Laugh ton v. Harden, 68 Me. 213, and Andrew v.
Jones, 10 Ala. 422, holding intent of grantor alone determines validity of
conveyance; Henry v. FuUerton, 13 Smedes & M. 635, indirect conveyance
to wife ; Payne v. Stanton, 69 Mo. 160, and Mittleburg v. Harrison, 11 Mo.
App. 142, fraud must be proved even if grantor was indebted at time of
making conveyance; Garr v. Hill, 9 N. J. Eq. 215, holding deed executed
for purpose of defeating creditors, in which purpose grantee participates,
is void, even though full consideration is paid; Beeckman v. Montgomery,
14 N. J. Eq. Ill, 113, 80 Am. Dec. 232, 234, where conveyance was made
with a view to future indebtedness ; Carpenter v. Carpenter, 27 N. J. Eq.
603, fraud must be alleged and proved; Mills v. Morris, 1 Hoff. Ch. 420,
where future debts were contracted to pay off those existing at time settle-
ment was made; Hutchinson v. Kelly, 1 Rob. (Va.) 134, 39 Am. Dec 257>
conveyance made to avoid prospective liability as a surety; Johnston v.
Zane, 11 Gratt. 661, holding further, to let in subsequent creditor, it is
immaterial whether fraudulent intent be directed against subsequent or
existing creditors, so long as there was fraud in fact; McLane v. Johnson,
43 Vt. 67, where subsequent creditors were permitted to maintain suit to
set aside conveyance when fraud complained of was on existing creditors;
Lockhard v. Beckley, 10 W. Va. 103, 110, fact that conveyance was made
while debts were in existence is evidence fraud was intended on subsequent
creditors; Smith v. McDonald, 25 Ga. 380, holding the continuing of occu-
pation by vendor is a badge of fraud as against after creditors; Hook v.
Mowfe, 17 iowa, 201, Parkman v. Welch, 19 Pick. 237, dissenting opinion
in Bullitt V. Taylor, 34 Miss. 746, and Loehr v. Murphy, 45 Mo. App, 524,
626, arguendo; Botts v. Cozine, 1 Hoff. Ch. 86, holding voluntary assig^n-
ment is prima facie valid as to subsequent creditors, but this may be over-
come by proof of actual fraud; Bank v. Merrill, 81 Wis. 160, 29 Am. St.
Rep. 875, 50 N. W. 505, as to necessity of subsequent creditors showing
fraudulent intent; Sioux City Terminal Co. v. Trust Co., 82 Fed. 136, 49
U. S. App. 545, as to right of subsequent creditors when debtor it88 mort-
gaged his property, there being no intent to defraud.
1219 - SEXTON V. WHEATON. 8 Wheat. 229-252
Distinguished in Emery v. Yount, 7 Colo. 109, 1 Pac. 688, where pleading
contained no allegation that conveyance was made with intent to defraud;
May V. Mfey, 19 Fla. 387, payments of premiums on life insurance policy
by insolvent is not fraudulent as to subsequent creditors ; Pepper v. Carter,
11 Mo. 544, holding voluntary conveyance, even if grantor be embarrassed
by debts, is not void as to subsequent creditors unless actual fraud be
shown; Grimes v. Sherman, 25 Neb. 846, 847, 41 N. W. 815, holding, under
facts, no intent to defraud was shown; Martin v. Oliver, 9 Humph. 566,
49 Am. Dec. 718, holding facts that husband conveyed nearly all liis prop-
erty to his wife and subsequently became indebted without means to pay,
does not show fraudulent intent.
Voluntary conveyances as fraudulent. Note, 14 Am. Dec. 708, 709.
Validity of voluntary conveyance as against subsequent creditors.
Note, AxiiL Gas. 1914A, 602.
Voluntary settlement in favor of wife and children is not to be impeached
by snbseqnent creditors, on ground of its being voluntary.
Approved in Savage v. Savage, 141 Fed. 350, and Wheeler & Wilson
Mfg. Co. V. Litwin, 57 N. J. Eq. 663, 43 Atl. 1099, both following rule ; Eng-
lish V. Brown, 219 Fed. 259, holding transfer by husband to wife in pay-
ment of advances from her separate estate was enforceable in equity as
against his creditors; Houck v. Christy, 152 Fed. 616, 81 C. C. A. 602,
holding sale of stock of goods made out of ordinary course of business was
not, in absence of statute, prima facie fraudulent; Merchants' Bank v.
Thomas, 121 Fed. 310, holding when firm agreed to pay debts of one of
the partners in consideration of extension of time, both for firm and indi-
vidual debts, and all had been paid when firm filed petition in bankruptcy,
other creditors could not attack agreement to pay individual debt; In^e
Gardner, 110 Fed. 126, holding where wife paid for one-half of property,
title to which stood in husband, she was not estopped upon bankruptcy
of husband from claiming her interest; Offutt v. King, 1 McAr. (D. C.)
317, upholding deed of trust in favor of grantor's wife, as against claims
of creditors; Walter v. Lane, 1 McAr. (D. C.) 280, 282, conveyance to wife
held not void as in fraud of creditors; Krueger v. Vorhauer, 164 Mo. 164,
63 S. W. 1099, holding deed of trust made and foreclosed could not be set
aside by plaintiff, who subsequently recovered judgment in action for tort ;
Harvey v. Godding, 77 Neb. 297, 124 Am. St. Rep. 841, 109 N. W. 223, up-
holding gift to wife made when husband was solvent; Ilfeld v. De Baca,
13 N. M. 39, 79 Pac. 725, holding conveyance to wife valid to extent of her
separate property represented thereby; Mattingly v. Nye, 8 Wall. 372, 19
L. Ed. S81, where settlement was made three years previous to contraction
of debt; Jackson v. Jackson, 91 U. S. 125, 23 L. Ed. 259, where husband
attempted to have settlement set aside; Smith v. Vodges, 92 U. S. 183,
23 L. Ed. 481, debt contracted subsequent to settlement; Jones v. Clifton,
101 U. S. 227, 25 L. Ed. 909, where it was held small debts owed at time
of settlement, such debts being subsequently paid, would not avoid settle-
ment ; Schreyer v. Scott, 134 U. S. 410, 33 L. Ed. 958, 10 Sup. Ct. 581, settle-
ment made prior to contraction of debts and not in contemplation of de-
8 Wheat. 229-262 NOTES ON U. S. REPORTS. 1220
f reading subsequent creditors; Gamer v. Bank, 151 U. S. 434, 88 L. Ed.
224, 14 Sup. Ct. 395, holding further, where husband while managing wife's
separate estate, without lier knowledge invests a part in real estate, taking
title in his name, and she, on discovering this fact, compels a conveyance
of title to herself, her equity in the property will be considered superior
to that of his creditors ; Dick v. Hamilton, Deady, 329, 330, 331, Fed. Cas.
3890, it will not be presumed that husband's creditor trusted him on faith
of property which appeared on records as property of his wife; Sedgwick
V. Place, 5 Ben. 185, 5 Bank. Reg. 168, Fed. Cas. 12,620, holding convey-
ance to wife through third party will not be set aside if husband was
solvent at time of making, there being no intention of defrauding credi-
tors; Barker v. Barker's Assignee, 2 Woods, 90, 12 Bank. Reg. 477, Fed.
Cas. 986, holding further, such conveyance may be impeached because of
concealment of the fact; Picquet v. Swan, 4 Mason, 452, Fed. Cas. 11,133,
Anonymous, 1 Wall. Jr. 112, 116, 118, 121, Fed. Cas. 474, where settlement
was made on illegitimate child before debts were contracted; United States
V. Griswold, 7 Sawy. 320, 8 Fed. 562, but where conveyance is mere device
to put property beyond reach of creditors, it will be set aside; Herring v.
Richards, 1 McCrary, 575, 3 Fed. 443, settlement made on child while father
was free of debt; Adams v. Broughton, 13 Ala. 744, holding voluntary con-
veyance of slaves operative against subsequent creditors of grantor; Horn
V. Volcano Co., 13 Cal. 72, 73 Am. Dec. 578, but may be impeached if
fraudulent in fact; Benton v. Jones, 8 Conn. 191, where subsequent credi-
tor sought to set aside conveyance made to previous creditors; Alston v.
Rowles, 13 Fla. 136, where the main question involved^ was as to time when
relationship of debtor and creditor arose; Sheppard v. Thomas, 24 Kan.
782, subsequent creditors had knowledge of conveyance when credit was
given; National Bank v. JafEray, 41 Kan. 713, 21 Pac. 249, where credit
was given subsequent to conveyance, and without knowledge debtor ever
had title to property in question; Thacher v. Phinney, 7 Allen, 150, bat
whether such conveyance was intended as fraudulent on subsequent credi-
tors is a question for jury; Wilder v. Brooks, 10 Minn. 54, 57, 88 Am. Dec.
50, 53, and Wells v. Treadwell, 28 Miss. 725, holding such conveyance not
void as to subsequent purchasers ; Phillips v. Wooster, 36 N. Y. 414, where
husband having procured a conveyance to be made to his wife, grantor sought
to impeach it by reason of becoming a creditor of husband for debt simul-
taneously contracted; Crumbaugh v. Kugler, 2 Ohio St. 379, where subse-
quent creditors were not allowed to come in where conveyance was set
aside as being fraudulent as to prior creditors; Vance v. Smith, 2 Heisk.
351, where grantor made ample provision for satisfaction of existing debts ;
Bank v. Patton, 1 Rob. (Va.) 538, subsequent creditors, who became such
with knowledge conveyance had been made, cannot complain thereof, even
though grantor was indebted to others at time of making; Sayers v. Wall,
26 Gratt. 366, 372, 21 Am. Eep. 807, 310, and Loekhard v. Beckley, 10
W. Va. 96, 97, where husband made improvements on wife's property;
Bank v. Wilson, 25 W. Va. 256, and Pike v. Miles, 23 Wis. 169, 99 Am. Dec.
150, holding conveyance cannot be impeached when, at time of making, hus-
band's assets greatly exceeded his debts; Clarke v. White, 12 Pet. 198, 9
1221 SEXTON V. WHEATON. 8 Wheat. 229-252
L. Ed. 1055, applying rule to composition preferring creditors; Graham v.
Railroad Co., 102 U. S. 163, 26 L. Ed. 108, upholding disposal of property
by corporation as to subsequent creditors ; Robinson v. Cathcart, 2 Cr. C. C.
698, Fed. Cas. 11,946, and Jones v. Clifton, 2 Flipp. 194, Fed. Cas. 7457,
arguendo; Scogin v. Stacy, 20 Ark. 271, where inability of husband to have
voluntary conveyance set aside was affirmed; Going v. 0ms, 8 Kan. 88,
as to right^of wife to purchase personal property from husband; Simmons
V. Thomas, 43 Miss. 38, 5 Am. Bep. 472, Pawley v. Vogel, 42 Mo. 303, and
National Bank v. Hamilton, 34 N. J. Eq. 162, arguendo; Hunters v. Waite,
3 Gratt. 64, 65, containing an exhaustive discussion of principles applicable
to voluntary conveyances ; Dajrton Co. v. Sloan, 49 Neb. 630, 68 N. W. 1042,
determining validity of mortgage given by husband to wife.
Distinguished in Hinders Lessee v. Longworth, 11 Wheat. 211, 6 L. Ed.
457, where conveyance was attacked by antecedent creditors; In re Jones,
6 Biss. 72, 9 Bank. Reg. 559, Fed. Cas. 7444, where intended settlement was
not such in law ; Taylor C. Co. v. Bell, 62 Ark. 33, 34 S. W. 82, where wife
permitted husband to represent her property as his own; also, to same
effect, Beeson v. Eveland, 26 N. J. Eq. 471 ; Bank of United States v. Hous-
raan, 6 Paige, 534, where grantee, son of grantor, did not record convey-
ance ; Bank v. Wilson, 26 W. Va. 259, and Bailey v. Gardner, 31 W. Va.
106, 13 Am. St. Rep. 858, 5 S. E. 642, where improvements were made on
conveyed property in default of creditors; Cato v. Easley, 2 Stew. 221,
facts showing that settlement in favor of children was fraudulent as to
creditors.
Modified in McCanless v. Smith, 61 N. J. Eq. 527, 25 Atl. 222, where sub-
sequent creditors were permitted to subject lands of wife 'io pajrment of
judgments against husband, although the lands had stood in wife's name
on public records at time husband's debts were contracted.
Attacks by creditors on conveyances made by husbands to wives.
Note, 90 Am. St. Bep. 614.
Estoppel of wife who permits husband to retain record title to her
realty to deny such title as against one extending credit to husband.
Note, AxiiL Gas. 19140, 1067, 1071.
Resulting trust as arising from purchase by husband in name of wife.
Note, Ann. Gas. 19150, 1082.
Miscellaneous. Cited in Cowles v. Marks, 47 Ala. 623, as to confidential
relations existing between husband and wife; Wise v. Norton, 48 Ala. 217,
and Jones v. Wilson, 69 Ala. 402, application not apparent; Cunningham
V. Williams, 42 Ark. 173, Smith v. Railroad Co., 99 U. S. 401, 26 L. Ed. 438,
Yasser v. Henderson, 40 Miss. 621, 90 Am. Dec. 853, Hershy v. Latham,
46 Ark. 561, and Campbell v. Whitson, 68 111. 243, 18 Am. Rep. 556, as to
note on fraudulent conveyances; Willard v. Magoon, 30 Mich. 281, as to
contract relations between husband and wife; Steele v. Coon, 27 Neb. 697,
20 Am. St. Rep. 712, 43 N. W. 414, as to deed not fraudulent at first becom-
ing so by laches of grantee ; Coolidge v. Melvin, 42 N. H. 626, as to secret
trust reserved to vendor; Monroe v. Hussey, 1 Or. 190, 75 Am. Dec. 563,
8 Wheat 253-293 NOTES ON U. S. REPORTS. 1222
as to when sale of personalty unaccompanied by delivery will be considered
void as to creditors of vendor.
8 Wheat. 253-257, 5 L. Ed. 610, UNITED STATES ▼. WILSON.
Discharge of insolvent debtor under State insolvency law does not bind
United States with reference to debts due from insolvent.
Cited in Trustees v. Trenton, 30 N. J. Eq. 684, as an example of appli-
cation of rule that general words in statute do not bind sovereigrn; also,
in Skelly v. School District, 103 Cal. 666, 37 Pac. 644, and Ex parte
Holman, 28 Iowa, 105, 4 Am. Eep. 169, to effect that State court cannot
in any manner interfere with or control the process of the Federal courts ;
Strozier v. Howes, 30 Ga. 580, as an authority for holding that Federal
courts have no authority, in cases not within appellate jurisdiction, to in
any manner interfere with jurisdiction of proceedings of State courts;
United States v. Hewes, Crabbe, 317, Fed. Gas. 15,359, applying rule under
act of 1839; Glenn v. Humphreys, 4 Wash. 425, Fed. Gas. 5480, following
rule.
8 Wheat. 267-261, 6 L. Ed. 611, QBEELT ▼. UNITED STATES.
Where breach in condition of bond, given under prize act of 1812, appears
upon demurrer, defendants not entitled to hearing in equity.
Gited in Marble v. Fulton, 1 Hask. 470, Fed. Gas. 9059, an action for
breach of condition in bond, as an instance where penalty for breach was
established by law.
8 Wheat. 261-268, 6 L. Ed. 612, THE EXPERIMENT.
In case of collusive capture, papers found on board one captured vessel
may be Invoked in case of another captured on same cruise.
Approved in The Springbok, Blatchf. Pr. Gas. 443, Fed. Gas. 13,264, The
Springbok, Blatchf. Pr. Gas. 449, Fed. Gas. 13,264, and The Diana, 7 Wall.
360, 19 L. Ed. 166, as instances of invoking testimony from other sources.
8 Wheat. 268-293> 5 L. Ed. 614, SPRING v. S. O. INSURANCE CO.
Insolvent has right to prefer one creditor to another in payment by assign-
ment bona fide made.
Approved in Hutchinson v. Brown, 8 App. D. G. 164, holding assignee
of judgment had priority over attachment levied later in same day, with-
out giving notice of assignment; Turk v. Skiles, 45 W. Va. 86, 30 S. E.
236, holding when the holder of vendor's lien, and owner of land charged
therewith, deed land in trust to secure debts of third person, the deed
will discharge the lien; Gorry v. Shea, 144 Wis. 138, Ann. Oas. 1912A,
1154, 128 N. W. 894, holding conveyance to certain creditors void under
statute as in fraud of others; Thornton v. Davenport, 1 Scam. 298, 29
Am. Dec. 360, where rule is applied in case of securing certain creditors
by mortgage in preference to others; Ashby v. Steere, 2 Wood. & M. 357,
Fed. Gas. 576, where assignment was made in contemplation of bank-
1223 SPRING V. S. C. INSURANCE CO. 8 Wheat. 268-293
ruptcy; Lord v. Devendorf, 54 Wis. 496, 11 N. W. 905, where individual
creditors were preferred to those of firm; McCall v. Hinkley, 4 Gill, 157;
Dufphey v. Frenaye, 5 Stew. & P. 256, arguendo.
Distinguished on statutory grounds in Landauer v. Vietor, 69 Wis. 440,
34 N. W. 231.
Interpleader may be maintained where there are several parties claiming
same fund, and rights of respective parties will he determined.
Approved in M'Namara v. Provident Sav. Life Assur. Soc, 114 Fed.
914, holding where life insurance company issuing policy to pay certain
sum, less any indebtedness on account of policy, filed hill of interpleader
against two defendants, hoth claiming under policy, setting forth all facts
and deposited money in court, the deduction of premiums did not make
complainant an interested party and deprive bill of character of bill of
interpleader; Love v. Hartford Life Ins. Co., 153 Mo. App. 151, 132 S. W.
337, holding insurer could interplead in action by assignee of policy to
recover thereon; Rosclle v. Farmers' Bank, 119 Mo. 93, 24 S. W. 746,
applying rule to case of several defendants claiming an interest in a lot-
tery drawing; School District v. Weston, 31 Mich. 97, holding that an
absolute identity in the conflicting claims is not requisite; Chase v. Man-
hardt. Bland Ch. 345, and Widaman v. Hubbard, 88 Fed. 813, arguendo.
Complainant in interpleader will be required to pay interest on fund pend-
ing proceedings, in case he has not paid fund into court.
Approved in Southern Pac. Ry. Co. v. United States, 186 Fed. 744, 108
C. C. A. 607, holding defendant, in action to recover land erroneously
patented, liable for interest on price received for lands from bona fide
purchaser; Groves v. Sentell, 66 Fed. 181, 30 U. S. App. 119, arguendo.
Right to recover interest on fund in litigation or deposited in court.
Note, Ann. Gas. 1912B, 1005.
Insurance broker has lien on policy for premiums paid by him on account
of his principal, which is not lost by parting with possession.
Approved in Wilder v. Watts, 138 Fed. 432, where alleged bankrupt
before insolvency arranged to borrow money to purchase goods under
agreement that he would have goods insured and assign policies to lenders
as collateral security, and loans were made to him, agreement was valid
equitable assignment, though policies not delivered when issued ; M 'Donald
v. Daskam, 116 Fed. 281, holding where borrower made equitable assign-
ment of proceeds of fire insurance policies as collateral security for loan,
the lien dates from assignment and not delivery, and if made within four
months after assignment it is valid; In re Wittenberg Veneer & Panel
Co., 108 Fed. 598, holding assignment of insurance policy as security is
not void, having been made within four months before bankruptcy, where
insured was solvent when assignment was made; Colburn's Appeal, 74
Conn. 467, 92 Am. St. Rep. 234, 51 Atl. 140, holding assignment of paid-up
policy by husband to wife is deemed accepted unless she dissents ; Beasley
V. Coggins, 48 Fla. 222, 37 Soutli. 215, upholding bill by trustee to set
8 Wheat. 294r-3l2 NOTES ON U. S. REPORTS. 1224
aside voluntary fraudulent conveyance by bankrupt to wife while insol-
vent, with intent to delay and defraud prior and subsequent creditors,
though recorded day following execution; Johnson v. The Schooner
M'Donough, 1 Gilp. 104, 105, Fed. Cas. 7395, appl)ring the rule to wharf-
inger's lien, where vessel had been removed from wharf secretly and
wrongfully, and afterward brought back without fraud or force; Packard
v. Sloop Louisa, 2 Wood. & M. 58, Fed. Cas. 10,652, arguendo.
Foundation for secondary evidence of handwriting of abaeiit witness.
Cited in Hartford Ins. Co. v^ Gray, 80 111. 30, where secondary evidence
of application for insurance policy was admitted; Dismukes v. Musgrove,
7 Mart. (La.) (N. S.) 62, as an instance where secondary evidence was
admitted to prove handwriting; Bennett v. Robinson, 3 Stew. & P. 239,
•as to view of Supreme Court on evidence to prove handwriting of sub-
scribing witness.
Distinguished in Gaither v. Martin, 3 Md. 159, absence qf subscribing
witness being casual.
Necessity for calling subscribing witnesses to prove attested instru-
ments. Note, 35 L. B. A. S26, S84.
Assignment of chose In action need not be accompanied with actual
delivery to be valid as against creditors.
Approved in In re Cotton Manufacturers' Sales Co., 209 Fed. 640, hold-
ing agreement relating to transfer of future accounts did not amount to
equitable assignment; In re Macauley, 158 Fed. 327, upholding oral assign-
ment of account, though actual possession not transferred; Shorey v.
Webb, 122 Md. 214, 89 Atl. 392, holding legal delivery of assignment of
insurance policy presumed when it had been executed thirty years, and
after death of assignee.
Insurance broker as agent for the insured. Note, 38 L. B. A. (N. S.)
643.
Insurable interest of purchaser. Note, 13 £. B. G. 381.
Miscellaneous. Cited in Union Trust Co. v. Bulkeley, 150 J'ed. 514,
assignment of accounts good in equity, though manual possession not given ;
Wilbum V. Spofford, 4 Sneed, 704, as to when death works a revocation
of powers of agent ; Cronin v. Patrick County, 89 Fed. 83, 4 Hughes, 532,
as to title taken by assignee of bonds made, so as to pass by assignment
merely.
8 Wheat. 294-^12, 5 L. Ed. 620, HUGHES t. UNION INa OO.
In action of debt less siun may be recovered than is demanded, whare
amount is made up of distinct accounts.
Cited in Buckwalter v. United States, 11 Serg. & R. 197, arguendo.
When action will lie for debt.
Cited in Dillingham v. Skein, Hempst. 182, Fed. Cas. 3912a, Collins v;
Johnson, Hempst. 280, Fed. Cas. 3015a, and United States v. Elliot, 25
Fed. Cas. 1001, arguendo.
1225 BUEL ▼. VAN NESS. 8 Wlieat. 312-326
Contract of marine insurance conBtmed, and certain acts held not devia-
tion.
Cited i^ Thwing v. Washington Ins. Co., 10 Gray, 454, where a similar
contract was construed.
8 Wheat. 312-326^ 5 L. Ed. 624, BX7EL ▼. VAN NESS.
Appellate jurisdiction of Supreme Court may he exercised hy writ of
error issued by clerk of Circuit Court.
Cited in Worcester v. Georgia, 6 Pet. 537, 4 L. Ed. 492, as an instance
where the record was authenticated by clerk, and no exception was taken
to that mode of procedure; Johnson v. Howe, 2 Stew. 29, arguendo.
Practice and procedure governing transfer of causes to Federal Su-
preme Court for review. Note, 66 L. B. A. 836.
Writ of error need not itself state that it is directed to final Judgment,
or that court is highest court of State.
Cited in Underwood v. McVeigh, 131 U. S. 122, 21 L. Ed. 954, as an
instance where writ of error has been directed to the subordinate court
to which the record has been remitted. Cited in Fleming v. Clark, 12
Allen, 198, where the court holds that before a writ of error can right-
fully issue, there must have been a final decision in the highest court of
the State, to which the question could be taken.
Time and manner of raising and deciding questions in State court to
obtain review in Federal Supreme Court. Note, 68 L. R. A. 55.
Writ of error must he allowed either hy presiding Judge of State court, or
hy Judge of Supreme Court of United States.
Approved in In re Issuing Writs of Error, 199 Fed. 115, 117 C. C. A.
603, holding under Rev. Stats., § 1004, as amended in 1912, writ of error
from Supreme Court allowed by judge of Circuit Court of Appeals to re-
view decision of that court must be. issued by clerk of one or other of those
courts; Ferris v. Coover, 11 Cal. 180, holding further, judge must see that
he is acting within the law; Hart v. Burnett, 20 Cal. 171, holding further,
the action on application is so far judicial in nature, that judge may refuse
the citation when, in his judgment, it is clear that writ will not lie for want
of jurisdiction ; to same effect is Greely v. Townsend, 25 Cal. 608.
Jurisdiction of United States Supreme Court extends to case where both
parties claim right or title under same act of Congress.
Cited in Lapham*v. Almy, 13 Allen, 304, and Rice vi Thayer, 106 Mass.
261, 7 Am. Bep. 619, where rule was applied in case of a demand by an
informer against collector of internal revenue for a share of penalty paid
to collector.
Under act of 1799, collector's share of forfeiture is payable to collector
in ol&ce at time seizure was made.
Distinguished in Waddell v. Morris, 14 Wend. 81, where former marshal
cannot maintain action at law against his successor in office to recover
8 Wheat. 326-^37 NOTES ON U. S. REPORTS. 1226
proportionate amount of snm allowed for eare and custody of property
seized and detained under order of court.
Erroneous constructions, adopted without examination, are n«t liindln^r
as authority.
Cited in dissenting opinion in Harrison v. Nixon, 9 Pet. 530, 9 L. Ed.
218; Decatur v. Paulding, 14 Pet. 607, 612, 10 L. Ed. 614, 617.
Appellate Jurisdiction of Supreme Ck>urt In cases ftom State courts, under
Federal Constitution, laws and treaties. Is not limited hy value of matter In
dispute.
Approved in The Paquete Habana, 175 U. S. 683, 44 L. Ed. 322, 20
Sup. Ct. 293, holding appeal may be taken to Supreme Court in prize cases,
irrespective of amount in dispute.
8 Wheat. 326-^337, 5 L. Ed. 628, NI0H0LL8 ▼. WEBB.
Demand of payment, and notice of nonpayment, need not be made by
notary In case of promissory notes, in order to bind indorser.
Approved in Stanley v. McElroth, 3 Cal. Unrep. 167, 22 Pac. 676, holding
indorser had waited demand and notice of nonpa3rment; Nelson v. Bank, 69
Fed. 800, 32 U. S. App. 554, holding all that is required is that due present-
ment and demand shall be made, and that indorser shall be seasonably
notified of dishonor, and holder looks to him for payment; Bay v. Church,
15 Conn. 17, 18, where note was payable in one State and indorser was
inhabitant of another; Bond v. Bragg, 17 111. 71, holding, further, protest,
of itself, is not evidence of demand of payment, nonpayment and notice,
of promissory note ; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 24, applying
rule to inland bill of exchange; Smith v. Little, 10 N. H. 532; Sussex Bank
V. Baldwin, 17 N. J. L. 489, where demand was made by one not a notary;
Bernard v. Barry, 1 G. Greene, 390, holding, however, «uch protest is ad-
missible as part of notary's testimony in proving demand and notice;
Carter v. Burley, 9 N. H. 567, Wheeter v. State, 9 Heisk. 395, following
rule.
Notarial protest is not itself evidence in chief, of part of demand of
payment of promissory note.
Cited in Waldron v. Turpin, 15 La. 555, 35 Am. Dec. 212, and Corbin ▼.
Planters' Bank, 87 Va. 664, 24 Am. St. Rep. 675, 13 S. E. 99, following
rule ; Sanderson v. Sanderson, 20 Fla. 303, holding such certificate of pro-
test properly in evidence because the right of objection was not taken
at trial ; Schofield v. Palmer, 134 Fed. 755, arguendo.
Distinguished in Williams v. Putnam, 14 N. H. 542, 40 Am. Dec. 205,
and Dougherty v. Hildt, 1 McLean, 335, Fed. Cas. 4027, holding, when the
indorser of a note lives in one State, and the maker in anothei*, fche dishonor
may be proved by protest; Simpson v. White, 40 N. H. 543, on statutory
grounds; Burk v. Shreve, 39 N. J. L. 216, where statute made certificate
evidence in all eases ; to same effect, Ashe v. Beasley, 6 N. D. 193, 69 N. W.
188.
Protest as evidence. Note, 96 Am. Dec. 603, 605,*612.
1227 ■ NICHOLLS v. WEBB. 8 Wheat. 326-337
fellies of eTidence mast expand according to exigencies of society.
Approved in Brown v. United States, 142 Fed. 6, on issue as to insolvency
of debtor of bank, books of bank are admissible as prima facie evidence of
^amount of corporation's indebtedness to it; dissenting opinion in Musson
V. Lake, 4 How. 286, 11 L. Ed. 977; Vaughan v. Phebe, 1 Mart. & Y. 22,
17 Am. Dec. 778.
Courts are cautious in the introduction of new doctrines of evidence.
Cited to this effect in County of Mahaska v. Ingalls, 16 Iowa, 85.
Protest of foreign bills of exchange is admissible evidence of demand on
drawee.
Approved in Dickens v. Beal, 10 Pet. 582, 9 L. Ed. 542; dissenting opin-
ion in Musson v. Lake, 4 How. 279, 282, 11 L. Ed. 974, 975; Jones v.
Heaton, 1 McLean, 318, Fed. Cas. 7468, where bill was drawn in one State
to be paid in another; Indseth v. Pierce, 13 Fed; Cas. 34, where bill drawn
in United States was payable in Norway; National Bank v. Chancellor,
9 W. Va. 70, and Dumont v. Pope, 7 Blackf . 369, as to whether protest of
inland bill of exchange is evidence for any purpose.
Books of notary, ^oved to have been regularly kept, are admissible, after
his decease, to prove demand and notice.
Approved in Davis v. Louisville Trust Co., 181 Fed. 13, 14, 30 L. R. A.
(N. S.) 1011, 104 C. C. A. 24, report on corporation made to Dun & Co.
by their agent in regular course of duty was admissible, as prima facie
evidence, after death of agent, of statements of officer of corporation;
Remington Maeh. Co. v. Wilmington Candy Co., 6 Pepne. (Del.) 296, 66
Atl. 467, holding entries made on slips as to amount of ice made were
admissible in action for breach of warranty of ice machine; Hatfield v.
Perry, 4 Harr. 465, following rule ; Planters' Bank v. Bass, 2 La. Ann. 438,
where notary was also shown to be agent of bank; Porter v. Judson, 1
Gray, 176, ruling similarly; Barnard v. Planters' B&nk, 4 How. (Miss.)
106, 107, 108, observing further that memoranda need not be wholly in
handwriting of notary; Ogden v. Gli dwell, 5 How. (Miss.) 182; Bodley v.
Scarborough, 5 How. (Miss.) 729, HaJliday v. McDougall, 20 Wend. 85,
Austin V. Wilson, 24 Vt. 636, and Dobson v. Laval, 4 McCord, 58, following
rule; Dickens v. Beal, 10 Pet. 580, 9 L. Ed. 541, where it was held that
testimony of notary that he put notice of protest in postoffice, without
producing copy thereof or proving contents, is sufficient proof that bills
or notes were protested; Eldrege v. Chacon, Crabbe, 299, Fed. Cas. 4329,
holding notary's statement in protest that he has given indorser notice
of nonpayment is prima facie evidence of such notice; Carter v. Burley,
9 N. H. 568, impression of notarial seal upon protest raises presumption
that it was affixed according to law of place of demand; Brewster v.
Arnold, 1 Wis. 282, upholding sufficiency of notice of protest; Musson v.
Lake, 4 How. 283, 11 L. Ed. 996, majority holding where notarial protest
does not set forth that it was presented to drawee, it is inadmissible; dis-
senting opinion in United States v. Libby^ 1 Wood. & M. 226, Fed. Cas.
15,597, arguendo.
8 Wheat. 326-337 NOTEtS .ON U. S. REPORTS. 1228
Criticised in Bank ▼. Cooper, 1 Harr. 16, as making the notary judge
of what is legal notice.
Admissibility in evidence against third persons of books, reports and
the like, other than books of account. Note, 125 Am. St. Rep. 843,^
846.
Use of books of account as evidence on issues between other parties.
Note, 53 L. B. A. 516, 523, 525.
Admissibility of declarations of person since deceased. Note, 11
£. B. 0. 278.
Memoranda of acts done, made in ordinary coarse of business, and in,
discharge of prescribed duty, are admissible after maker's death.
Approved in Rosenthal v. McGraw, 138 Fed. 726, testimony of witness as
to indebtedness based upon examination of charges made in books of
account which were not made by him and are in no manner authenticated,
is hearsay; Denver v. Cochran, 17 Colo. App. 74, 67 Pac. 24, in action
against' city for injury resulting from defective sidewalk, letter written by
chief inspector of public works in line of his duty showing actual knowl-
edge of defects is admissible after his death to show knowledge on part
of city; Haas v. Chubb, 67 Kan. 790, 74 Pac. 230, press copies of waybills
issued by railroad, originals of which are not shown to be incapable of
production, are inadmissible where person issuing bills and making copies
not shown to be dead; Rogers v. Clark Iron Co., 104 Minn. 214, 116 N. W.
745, holding proof of business habit admissible to corroborate defective
memory of witness as to existence and contents of missing instrument;
Howard v. Strode, ^2 Mo. 230, Ann. Gas. 19130, 1057, 146 S. W. 798,
holding entries in books of corporation in handwriting of a decedent ad-
missible to prove his presence in city where books were kept on day of
entry; Collins v. German American etc. Assn., 112 Mo. App. 219, 86 S. W.
894, admitting baptismal church records kept by clergymen of parish from
time immemorial, without proof of handwriting of entries; We3t Viiginia
Architects & Builders v. Stewart, 68 W. Va. 611, 36 L. R. A.' (N. S.) 899,
70 S. E. 116, holding entries in books by bookkeeper of contractor admissi-
ble with his testimony as to regularity to establish accounts therein; Gale
V. Norris, 2 McLean, 471, Fed. Cas. 6190, applying rule to entries in mer-
chants' book of account made by clerk, since deceased; Hatfield v. Perry,
4 Harr. 465, following rule ; Spann v. Baltzell, 1 Fla. 321, 46 Am. Dec. 360^
where entries made by a notary, authenticated by his oath, were admitted
in evidence, although he could not remember the facts stated in such
entries; Robinson v. Dibble, 17 Fla. 462, applying rule to account-books of
testator offered by his executor; Bank of Tennessee v. Smith, 9 B. Mon.
611, where entries were made by bank's employees; Augusta v. Windsor,
19 Me. 321, entries made by a physician; Shove ▼. Wiley, 18 Pick. 562,
admitting as evidence entries by bank cleik to show demand and notice
on maker of note; Kennedy v. Doyle, 10 Allen, 166, 168, reviewing authori-
ties and holding entry of baptism, made by priest in church record of
baptisms, is, after death of priest, competent evidence of date of baptism;
1229 NICHOLLS v. WEBB. 8 Wheat. 326-837
Lassone ▼. Boston Co.; 66 N. H. 353, 356, 359, 17 L. B. A. 527, 24 Atl.
903, 905, item of account for repairs, in a wheelwright's book of account,
is admissible in proof of damage; Livingston v. Amoux, 56 N. T. 518,
where receipt given by sheriff, since deceased, was admitted to prove re-
demption from execution sale; Allen v. Parish, 3 Ohio, 125, where copy •
of deed, made by notary public, was admitted in evidence, the original
having been lost; Maxwell v. Wilkinson, 113 U. S. 658, 28 L. Ed. 10S8,
5 Sup. Ct. 692, refusing to admit memoranda of past transaction where
person who made it had no recollection of the transaction; Putnam v.
United States, 162 U. S. 695, 40 L. Ed. 1121, 16 Sup. Ct. 926, testimony
given by witness four months after occurrence described is not contem-
poraneous for purpose of refreshing his memory in giving testimony at
later time; Chaffee v. United States, 18 Wall. 541, 21 L. Ed. 912, holding
entries of canal collectors inadmissible to show amount of liquor shipped,
because not written from personal knowledge of the amounts, but from
invoice merely; North Bank v. Abbot, 13 Pick. 471, 25 Am. Dec. 339,
admitting entries by bank clerk to prove demand and notice, clerk having
absconded; Little Rock Co. v. Dallas Co., 66 Fed. 525, 30 U. S. App. 55,
holding certain entries inadmissible as the person making them was alive;
Williamson v. Doe, 7 Blackf. 18, refusing to admit entries because no
proof of death ; Constable v. Steamship Co., 154 U. S. 70, 88 L. Ed. 913, 14
Sup. Ct. 1069; County of Mahaska v. Ingalls, 16 Iowa, 88, Browning v.
Flanagin, 22 N. J. L. 672, and Henry v. Oves, 4 Watts, 48, arguendo.
Modified in Farmers' Bank v. Whitehill, 16 Serg. & R. 89, holding such
memoranda not competent evidence unless contemporaneous with the
transaction.
Distinguished in Cummins v. Pennsylvania Fire Ins. Co., 153 Iowa;
585, Ann. Gas. 191SE, 235, 87 L. R. A. (N. S.) 1169, 134 N. W. 81, register
of agent showing issuance of policy but not attachment of clause inadmis-
sible on issue as to whether clause had been attached to insurance policy;
Arnold v. Hussey, 111 Me. 227, 51 L. R. A. (N. S.) 818, 88 Atl. 725, hold-
ing private weather record inadmissible in action for injuries caused by
fall of ice from defendant's building; Sexton v. Perrigo, 126 Mich. 544,
545, 85 N. W. 1097, holding under § 2635, Comp. Laws Mich., relating to
certificate of notaries public, on death of notary such certificate is inad-
missible ; Eaton Chemical Co. v. Doherty, 31 N. D. 188, 153 N. W. 970, hold-
ing books of account best evidence of contents and parol statement of
goods sold and value not admissible ; Mutual Ins. Co. v. Hillmon, 145 U. S.
295, 36 L. Ed. 710, 12 Sup. Ct. 912, where ordinary letters of friendship
of deceased were sought to be introduced in evidence under the rule; Chi-
cago Lumber Co. v. Hewitt, 64 Fed. 318, 319, 22 U. S. App. 646, where
memoranda, based on other memoranda, were held inadmissible in absence
of testimony explaining original ; Morton v. Smith, 4 T. B. Mon. 314, where
letters of plaintiff's agent to plaintiff were held inadmissible against de-
fendant; Bradbury v. Bridges, 38 Me. 349, memoranda were not shown
to have been made in discharge of official duty, or in ordinary course of
business; Batchelder v. Sanborn, 22 N. H. 332, on ground that books in
question were those of one of parties to suit; Wheeler v. Walker, 45 N. H.
8 Wheat. 338-365 NOTES ON U. S, REPORTS. 1230
359, where corporation sought to introduce its own books in support of its
claim against a stranger; Philadelphia Bank v. Officer, 12 Serg. & R. 60, it
not being shown maker of memoranda was beyond process of court; Swan
V. Thurman, 112 Mich. 418, 70 N. W. 1024, holding books of account inad-
missible in action for goods sold and delivered, wher6 only supporting
testimony was that of. bookkeeper, who merely transcribed entries from
slips handed him by salesmen.
Use of memoranda by witness to refresh memory. Note, 98 Am. Dec
621.
Miscellaneous. Cited in Green v. Gross, 12 Neb. 124, 10 N. W. 461,
to {K>int that seal of notary proves itself.
8 Wheat. 338-865, 5 L. Ed. 631, FIJESOENISR ▼. BANK OF THE T7NITED
STATES.
A note^ Told for usury, Is void In the hands of every holder.
Approved in German Bank v. De Shon, 41 Ark. 340, following rule;
Hamilton v. Fowler, 99 Fed. 24, holding usurious note void under statute,
but voidable to extent of usury, innocent purchaser before maturity is
unaffected by fact that unlawful rate of interest is secretly included in
principal.
Distinguished in Weed v. Gainesville etc. R. R. Co., 119 Ga. 590, 46 S. E.
893, defense of usury is not good as against bona fide purchaser of cor-
porate bonds for value without notice and before maturity.
Bank of United States Is not prohibited from dlBcountiiig note^, or re-
celvlng transfers of notes In payment of debts doe bank.
Approved in Morris v. Third Nat. Bank, 142 Fed. 31, national banks
may purchase notes at less than face value; Tourtelot v. Whithed, 9 N. D.
477, 84 N. W. 1^ holding receipt of corporate stock by national bank in
payment of debt is not prohibited; dissenting opinion in First Nat. Bank
V. Converse, 200 U. S. 442, 50 L. Ed. 544, 26 Sup. Ct. 306, majority holding
national bank cannot take stock in corporation formed to engage in busi-
ness of buying and selling stocks; Bank of United States v. Waggener, 9
Pet. 399, 9 L. Ed. 171, where the same section of the charter was inter-
preted; First National Bank v. National Exchange Bank, 92 U. S. 128,
23 L. Ed. 681, where bank was permitted to accept stock in satisfaction
of a debt, although dealing in stocks was expressly prohibited; Bates v.
Bank, 2 Ala. 467, where similar section in State statute creating bank
was construed ; Neilsville Bank v. Tuthill, 4 Dak. 303, 30 N. W. 156, where
bank was organized under State laws, the court holding the power to
purchase notes follows from the power to discount; Smith v. Exchange
Bank, 26 Ohio St. 151, holding, purchasing and discounting paper is only
a mode of loaning money; Pearson v. Railroad Co., 62 N. H. 549, 13 Am.
St. Bep. 604, arguendo.
Taking interest in advance by bankers, upon loans, in course of ordinanr
business, is not usurious.
1231 FLECKNER v. BANK OF THE UNITED STATES. 8 Wheat. 338-366
. Approved in Union Sav, Bank v. DotCenheim, 107 Ga. 614, 34 S. E. 221,
holding where money is loaned and interest at highest lawful rate for
period of loan is added, and ^the entire sum is divided into as many notes
payable monthly as there are months in period of loan, transaction is
usurious under Civil Code Ga., §§ 2877, 2886; Sundahl v. First State Bank,
32 N. D. 378, 156 N. W. 796, under statute payment of twelve per cent
interest in advance on loan from bank not usurious ; ^dissenting opinion in
divided court in Newton v. Woodley, 55 S. C. 147, 32 S. E. 534, majority
holding note providing for interest in advance at rate of eight per cent
per annum, and unpaid interest shall draw interest at same rate, is not
usurious under Rev. Stats. 1390 (S.^C.) ; Bank v. Cook, 60 Ark. 293, 294, 46
Am. St. Bep. 174, 175, 29 L. B. A. 765, 30 S. W. 37, and McGiU v. Ware,
4 Scam. 26, 27, highest legal rate of interest taken in advance; also,
Vahlberg v. Keaton, 51 Ark. 541, 14 Am. St. Bep. 77, 4 L. B. A. 464, 11
S. W. 879; Haas v. Flint, 8 Blackf. 67, loan made by insurance company;
English V. Smock, 34 Ind. 132, where interest to be taken was on bonds
and was not taken by bankers; Tholen v. Duffy, 7 Kan. 409, where rule
is made general by extending privilege to others than bankers; Newell v.
National Bank, 12 Bush (Ky.), 60,^ Duncan v. Maryland Sav. Inst., 10
Gill & J. 311, Lyons v. State Bank, 1 Stew. 469, Bank of Utiea v. Wager,
2 Cow. 767, Stribbling v. Bank, 5 Rand. 144, Grigsby v. Weaver, 5 Leigh,
213, Planters' Bank v. Snodgrass, 4 How. (Miss.) 627, and Bank of
Geneva v. Howlett, 4 Wend. 332, following rule.
Distinguished in Sessions v. Richmond, 1 R. I. 305, 'where defendant
agreed to forfeit a particular sum in case of failure to pay another prin-
cipal sum at a given time, the particular sum an^unting to more than
legal interest on the principal; Carolina Bank v. Parrott, 30 S. C. 67,
8 S. E. 201, where, in absence of agreement. Interest above the legal rate
was taken. %^
Usury, what transactions are usurious. Note, 46 Am. St. Bep. 189.
Taking interest in advance as usury. Note, Ann. Oaa. 19150, 1168.
Lawfulness of interest in advance. Note, 29 L. B. A. 762, 768.
* Bank discount Is deduction made by bank upon Its loans of money, upon
other evidences of debt, payable at future day.
Approved in Eastern etc. v. Third Nat. Bank of Cincinnati, 102 Ky.
66, 42 S. W. 1116, holding under bank charter certain notes **when dis-
counted" by bank shall be on same footing as bills of exchange, a note is
discounted when bank deducts from face of note interest to maturity in
advance ; Sundahl v. First State Bank, 32 N. D. 379, 155 N. W. 796, holding
''discounted" as used in section 5166, Comp. Laws 1913, covered loan
transactions; Toungblood v. Birmingham Co., 95 Ala. 623, 36 Am. St. Bep.
246, 20 L. B. A. 60, 12 South. 579, Philadelphia etc. Co. v. Towner, 13
Conn. 260, Pape v. Capitol Bank, 20 Kan. 447, 451, 27 Am. Bep. 186, 189,
Lazear v. National Bank, 52 Md. 128, Farmers & Mechanics' Bank v.
Baldwin, 23 Minn. 205, 23 Am. Bep. 687, Salmon Falls Bank v. Leyser,
116 Mo. 70, 72, 22 S. W. 508, 509, Niagara Bank v. Baker, 15 Ohio St.
87, Anderson v. Cleburne, 4 Tex. App. 255, National Bank v. Johnson, 104
8 Wheat. 338-366 NOTES ON U. S. REPORTS. 1232
U. S. 276, 26 L. Ed. 744, and Danforth v. National Bank, 48 Fed. 273,
3 U. S. App. 7, 17 L. R. A. 624, followii^ rule.
Bank's purchase of notes and bills as disting^uished from discounting.
Note, 16 L. R. A. 223.
Charter of bank of United States does not avoid secnxities upon whlcli
usurious interest has heen taken by way of discount.
Cited in National Bank v. Moore, 2 Bond, 180, Fed. Cas. 10,041, where
same construction was adopted as to a usurious contract under national
banking act; Darby v. Boatman's Sav. Inst, 6 Fed. Cas. 1182, holding con-
tract void as to excess interest beyond legal rate; Wiley v. Starbuck,
44 Ind. 313, where national bank reserved interest at higher rate than
allowed by State statute; Bandel v. Isaac, 13 Md. 220, where same con-
struction was placed on a similar clause contained in Maryland Consti-
tution; Farmers' Bank v. Harrison, 57 Mo. 510, and Farmers' Bank v.
Burchard, 33 Vt. 372, where bank was organized under State statute con-
taining restriction as to rate of interest; McBroom v. Scottish Invest-
ment Co., 153 U. S. 325, 38 L. Ed. 732, 14 Sup. Ct. 855, under New Mexico
law loan for interest in excess of legal rate, is void only as to excess;
Stribbling v. Bank, 5 Rand. 141, arguendo; Lynchburg Bank v. Scott, 91
Va. 657, 60 Am. St. Rep. 864, 29 L. R. A. 827, 22 S. E. 489, defense of
usury is unavailable against bona fide holder.
Distinguished in Hogan v. Hensley, 22 Ark. 414, as being exception to
general rule, that usurious contract is void, and is a privilege confined to
bankers.
Questioned in Market Bank v. Smith, 16 Fed. Cas. 758.
Acts of bank of United States in violation of charter cannot be attacked
in collateral proceedings.
Approved in Brigham v. Peter Bent Brigham Hospital, 134 Fed. 527,
67 C. C. A. 393, where State, by special act, has authorized creation of
particular corporation with enlarged capacity to enable it to accept cer-
tain gift, power of corporation cannot be questioned ; Buffalo German Ins.
Co. V. Third Nat. Bank, 162 N. Y. 176, 66 N. E. 525, holding under national
banking act, section 35 (13 Stat. 110), providing no association shall make
no loan on security of its own capital stock, a by-law of a national bank
that no stockholder indebted to the bank shall transfer his stock is inop-
erative ; First Nat. Bank v. Messner, 25 N. D. 267, 141 N. W. 1000, holding
debtor could not plead loan on real estate by national bank was ultra vires
as defense to action on debt secured; National Bank v. Whitney, 103 U. S.
103, 26 L. Ed. 444, where bank had violated prohibitory clause of banking
law in regard to taking real estate securities for loans; Union Water Co.
V. Murphy Co., 22 Cal. 630, where rule is extended to corporations gen-
erally; Neilsville Bank v. Tuthill, 4 Dak. 307, 30 N. W. 158, where it was
claimed bank had acted ultra vires in the purchase of notes; Southern
Life Ins. Co. v. Lanier, 5 Fla. 165, 53 Am. Dec. 463, where attempt was
made to avoid contract on ground that directors of corporation had abused
corporate powers; Bond v. Central Bank, 2 Ga. 113, where bank, in making
contract, had disregarded provisions in charter; Lazear v. National Bank,
1233 FLECKNER v, BANK OF THE UNITED STATES. 8 Wheat. 338-365
52 Md. 122, 36 'Am. Bep. 357, where defendant attempted to show bank
had violated its charter in discounting notes, the payment of which de-
fendant had guaranteed ; Grand Gulf Bank ▼. Archer, 8 Smedes & M. 173,
181, applying rule to usurious contract with bank; Haynes v. Covington,
13 Smedes & M. 411, applying rule where corporation in making contract
exceeded its powers; Union Bank v. Hunt, 7 Mo. App. 51, applying rule
bank purchasing own stock took buyer's note as security; Wright v. Lee,
2 S. D. 614, 51 N. W. 711, where parties having dealt with de facto
directors sought to attack the validity of their election; Philadelphia Loan
Co. V. Towner, 13 Conn. 259, Commercial Bank v. Nolan, 7 How. (Miss.),
528, arguendo.
Act of officer, done In ordinary course of business, actually confided to
him, Is prima fade evidence that such act falls within scope of his authority.
Approved in dissenting opinion in Bank v. Farris, 77 Mo. App. 192,
majority holding corporation loaning money to bank has right to require
approval of board of directors; Stamford Bank v. Ferris, 17 Conn. 270,
where cashier transferred bank's securities on books of bank to himself;
Haynes v. Beckman, 6 La. Ann. 225, where cashier transferred note by
indorsement without express authority of directors; Donnell v. Lewis
County Bank, 80 Mo. 171, where cashier borrowed money for bank; Bank
V. Haskell, 51 N. H. 121, 12 Am. Bep. 72, where cashier informed surety
note was paid, when, in fact, it was not; Commercial Ins. Co. v. Union
Ins. Co., 19 How. 323, 15 L. Ed. 638, where president of company was held
out as having power to contract for insurance; Ringling v. Kohn, 6 Mo.
App. 337, where bank cashier borrowed money for bank; Smith v. Lawson,
18 W. Va. 227, 41 Am. Rep. 689, arguendo.
Distinguished in United States v. Bank of Columbus, 21 How. 363, 16
L. Ed. 133, where the act of officer was not one that fell within his ordinary
duties; Farmers ft Merchants' Bank v. Smith, 77 Fed. 135, 40 U. S. App.
690, where transactions with cashier were known to be outside the legiti-
mate sphere of his operations; Spyker v. Spence, 8 Ala. 340, where acts
of bank president were ultra vires.
Commercial corporations may bind themselves by acts of their authorized
agents, without corporation seal.
Cited in Bank of Metropolis v. Guttschlick, 14 Pet. 27, 10 L. Ed. 339,
where declaration stated merely that bank agreed to certain contract by
its officers; Gottfried v. Miller, 104 U. S. 527, 26 L. Ed. 858, where seal
was omitted from contract of assignment; Crowley v. Genesee Co., 55 Cal.
277, where an admission that one who made contract was president and
manager of corporation was held sufficient evidence of his authority;
Savings Bank v. Davis, 8 Conn. 202, 203, 208, where bank, by mere vote of
directors, appointed an agent and authorised him to convey real estate
belonging to it; City of Davenport v. Peoria Ins. Co., 17 Iowa, 283, col-
lecting authorities and holding insurance company bound by its agent|;
Garrison v. Combs, 7 J. J. Marsh. 85, 22 Am. Dec. 121f where agent of cor-
poration assigned note, the seal of corporation not being affixed to assign-
1—78
8 Wheat. 338-365 NOTES ON U. S. REPORTS. . 1234
ment; Fitch v. Steam Co., 80 Me. 38, 12 Atl. 734, where mortgage was
executed by agent j Baptist Church v. Mulford, 8 N. J. L. 185, where action
of assumpsit was maintained on implied contract; Saxton v. Texas Ry.
Co., 4 N. M. 203, 16 Pac. 854, where contracts sealed with private seal of
official, made for benefit of corporation, were held to be simple unsealed
contracts of corporation; Bank of Genesee v. Patchin Bank, 19 N. Y. 319,
where indorsement by cashier in his official capacity of bill of exchange
was held indorsement of bank; dissenting opinion in Mulcahy v. Emigrant
Bank, 89 N. T. 435, where bank was held bound by acts of teller exercised
in performance of his ordinary powers; Turnpike Co. v. M 'Carson, 1 Dev.
& B. 310, where corporation appointed manager by vote of directors;
Bank v. Bivingsville, 10 Rich. 101, and Bates v. Bank, 2 Ala. 462, where
appointment of agent was implied from acts of company; dissenting
opinion in Bank of U. S. v. Dandridge, 12 Wheat. 102, 6 L. Ed. 566, dis-
cussing validity of bond of oashier; Planters' Bank v. Sharp, 6 How. 322,
12 L. Ed. 456, arguendo; Everett v. United States, 6 Port. 182, 30 Am.
Dec. 588 ; dissenting opinion in La/ v. Austin, 25 Fla. 941, 7 South. 144,
the case upholding an assignment by corporate officers as a corporate
act; Butts ▼. Cuthbertson, 6 Ga. 171, holding corporation bound by note
executed by its agent; Union Bank v. Ridgely, 1 Har. & G. 421, holding
that acceptance of a bond by a corporation need not be express or under
seal but might be implied; Leavitt v. Oxford etc. R. Co., 3 Utah, 271,
1 Pac. 358, holding corporation may be bound by acts of some of its
directors; Waddill v. Sebree, 88 Va. 1016, 29 Am. St. Rep. 769, 14 S. E.
851, discussing agent's power generally; Janesville Bridge Co. v. Stough-
ton, 1 Pinn. 672, construing ferry franchise; Saxton v. Texas k S. F. Ry.
Co., 4 N. M. 203, 16 Pac. 854, holding private seal of officer of corporation
affixed to contract will not be considered seal of corporation so that the
contract will be a specialty.
• Distinguished in Crescent City Bank ▼. Carpenter, 26 Ind. 114, as to
facts ; Getty v. Milling Co., 40 Kan. 284, 19 Pac. 619, where acts of officers
were outside their general authority and resulted in no benefit to cor-
poration; Union Bank v. Ridgely, 1 Har. & G. 423, 425, Spykes v. Spence,
8 Ala. 339, 340, where acts of president of banking corporation were out-
side his expressed or implied powers.
The corporate seal. Note, 50 Am. St. Rep. 153.
Oasbler lias power to apply negotiable funds of bank to discharge its debts.
Approved in Hanover Nat. Bank v. First Nat. Bank, 109 Fed. 424, hold-
ing president of national bank, with management of bank, is authorized
to procure discount of its paper; Hill v. Bank of Seneca, 87 Mo. App. 604,
holding cashier of bank has authority to take necessary steps to realize
on notes and securities of bank; Everett v. United States, 6 Port. 180,
30 Am. Dec. 587, where cashier transferred securities of bank; Merchants'
Bank v. State Bank, 10 Wall. 650, 19 L. Ed. 1020 (reversing s. c, 3 Cliff.
207, Fed. Cas. 9449), where it was held jury might infer, from general
powers of cashier, authority to pledge bank's credit by certifying a check;
Carey v. Giles, 10 Ga. 27, where cashier had made transfer of securities,
after board of directors had resigned and presidency had been assumed
1235 FLECKNER v. BANK OF THE UNITED STATES. 8 Wheat. 338-365
by a person who was neither officer or director; Merchants' Ins. Co. v.
Chauvin, 8 Rob. (La.) 61, Kimball v. Cleveland, 4 Mich. 608, Maxwell v.
Planters' Bank, 10 Humph. 509, where cashier indorsed note and delivered
it to another bank in payment of debt; Smith v. Lawson, 18 W. Va. 227,
41 Am. Bep. 689, holding that a bank president was authorized to transfer
bank's note; U. S. Nat. Bank v. First Nat. Bank, 79 Fed. 299, 49 U. S.
App. 72, holding it within implied powers of bank president to indorse
negotiable paper passing through bank in ordinary course of business;
Xenia Bank v. Stewart, 114 U. S. 29, 29 L. Ed. lOS, 5 Sup. Ct. 848, holding
declarations of cashier as to question of payment admissible against the
bank; Stamford v. Benedict, 15 Conn. 445, ai^endo; Merchants' Bank
v. Rawls, 7 Ga. 196, 50 Am. Dec. 396, Montgomery v. Commercial Bank,
1 Smedes & M. Ch. 645, State v. Commercial Bank, 6 Smedes & M. 234,
45 Am. Dec. 284, as to authority of cashier of bank generally; Morris
Canal Co. v. Fisher, 9 N. J. Eq. 680, City Bank v. Perkins, 29 N. Y. 569,
86 Am. Dec. 338, reaffirming rule; First Nat. Bank v. Ocean Bank, 60
N. Y. 292, 19 Am. Bep. 188, denying right of cashier to bind bank by
accepting property for safekeeping; Ridgway v. Farmers' Bank, 12 Serg.
& R. 265, 14 Am. Dec. 686, following rule; Harrisburg Bank y. Tyler, 3
Watts & S. 376, discussing powers of cashier. _
Distinguished in Daviess Co. Sav. Assn. v. Sailor, 63 Mo. 27, where act
of cashier, in discharging surety from a note, was beyond his authority;
Savings Bank v. Hughes, 62 Mo. App. 581, where there was an instruction
implying cashier had power to discharge surety without payment of note;
Leggett V. N. J. Mfg. Co., 1 N. J. Eq., 553, 28 Am. Dec. 734, where cashier
executed mortgage in name of corporation; Marshall v. Express Co., 7
Wis. 34, 78 Am. Dec. 895, holding delivery of package by express company
to teller of bank was sufficient.
Disapproved in Lamb v. Cecil, 25 W. Va. 294, where cashier assigned
discounted notes of bank to depositor in payment of his deposits.
Notice to officer or agent of corporation, as affecting the corporation.
Note, 36 Am. Dec. 198.
Authority of bank cashier. Note, 12 Am. Bep. 75.
Implied powers of bank cashiers. Note, 77 Am. Dec. 761, 762.
Agent's power to indorse negotiable paper. Note, 27 L. R. A. 406.
To liquidate a balance means to pay it.
Cited and this definition adopted in Richmond v. Irons, 121 U. S. 61,
30 L. Ed. 875, 7 Sup. Ct. 804, Austin v. Tecumseh Bank, 49 Neb. 418, 59
Am. St. Rep. 546, 35 L. R. A. 446, 68 N. W. 629.
Subsequent ratification has retrospective effect, and is equivalent to prior
command, where it does not prejudice rights of strangers. ^
Approved in Clews v. Jameson, 182 U. S. 483, 45 L. Ed. 1194, 21 Sup.
Ct. 854, holdii^ failure of principal to repudiate immediately sale by his
broker on a stock exchange is a ratification; Reed v. Weule, 176 Fed.
663, 100 C. C. A. 212, holding use of chronometer by charterer of vessel,
knowing it was rented, was ratification of rental contract for whole term;
8 Wheat. 365-391 NOTES ON U. S. REPORTS. 1236
Crisp V. State Bank, 32 N. D. 269, 165 N. W. 80, holding payee of check
could ratify delivery to person who intercepted it and forged payee's
indorsement and cashed it through intermediary bank without ratifying
forgery, and cotdd sue intermediary bank for conversion; Everett v.
United States, 6 Port. 183, 30 Am. Dec. 590, where- acts of bank officers
were subsequently ratified by directors; Supervisors v. Schenek, 5 Wall.
781, 18 L. Ed. 559, holding that a municipal corporation had ratified by
its acfts; Johnson v. Smith, 21 Conn. 636, where church corporation rati-
fied by adoption; Stanton v. N. Y. & Eastern Ry. Co., 59 Conn. 285, 21
Am. St. Rep. 118, 22 Atl. 304, where corporation ratified contract made
for its benefit before its organization; St. Croix Co. v. Mittlestadt, 43
Minn. 94, 44 N. W. 1080, where corporation sought to avoid transaction
after ratification thereof; Rich v. State Bank, 7 Neb. 209, 29 Am. Bep.
387, where corporation ratified an unauthorized act of one of its officials;
Davis V. School District, 44 N. H. 407, where school district ratified acts
of its committee; Bank of Northern Liberties v. Cresson, 12 Serg. & R.
311, where bank accepted security offered by one of its officers, although
directors in accepting had not followed by-laws; Pickering v. Lomax, 145
U. S. 315, 36 L. Ed. 718, 12 Sup. Ct. 862, In re Kansas City Stone Co., 9
Bank Reg. 80, 14 Fed. Cas. 130, Union Bank v. Ridgely, 1 Har. & G. 415,
Dispatch line v. Bellamy Co., 12 N. H. 237, 37 Am. Dec. 218, arguendo.
What constitutes ** dealing" or "canying on business." Note, 14
L. B. A. 530.
Power of corporation to deal in stock. Note, 18 L. B. A. 254.
Miscellaneous. Cited in Roblee v. Union Stock Yards Nat. Bank, 69
Neb. 186, 95 N. W. 63, note othei^irise negotiable is not rendered non-
negotiable by provision for collateral security.
8 Wheat. 365-370, 5 J.. Ed. 637, NICHOLAS ▼. AUDEBSON.
Virginia act respecting land grants to soldiers construed.
Miscellaneous. Cited in Richardson v. Richardson, 6 Ohio, 126, 25 Am.
Dec. 746, and Pruseux v. Welch, 20 Fed. Cas. 26, as to meaning of ex-
pression "beyond sea."
8 Wheat. 871-379, 5 "L. Ed. 689, THE PITT.
Not cited.
8 Wheat. 880-391, 5 L. Ed. 641, THE MABY ANN.
When Ubel may state grounds of forfeiture in words of statute.
Approved in Schneider v. People, 30 Colo. 497, 71 Pac. 370, holding
information under Laws 1887, p. 308, § 3 (Colo.), relating to irrigation
ditches, is fatally defective where it is in language of statute, but fails to
designate land involved; United States v. Weed, 5 Wall. 69, 18 L. Ed.
533, holding when vessel has been prosecuted as prize, it cannot be con-
demned as for a statutory forfeiture; United States v. Huckabee, 16 Wall.
431, 21 L. Ed. 463, condemnation and confiscation of property of Con-
federate government; dissenting opinion in United States v. Reese, 92
1237 THE SARAH. 8 Wheat. 391-397
U. S. 233, 23 L. Ed. 570, as to charging offense, in indictment, in words
of statute; United States v. Mann, 95 U. S. 586, 24 L. Ed. 533, where
declaration, in suit by United States against bank cashier for refusing to
permit revenue collector to enter bank for purpose of examining articles
subject to taxation, was held bad, because of failure to allege there were
unstamped' paid bank checks in custody of cashier; Stettiners y. United
States, 5 Cr. C. C. 580, Fed. Cas. 13,387, indictment for circulating small
notes as currency should aver that the note passed was ''paper cur-
rency";. United States v. Spirits, 61 Fed. 423, to information of forfeiture
of certain spirits, imported in violation of laws of importation; State v.
Miller, 60 Vt. 93, 12 Atl. 528, holding whether indictment in words of
statute is suJQficient depends on whether every fact necessary to constitute
the offense is charged or necessarily implied from language used; United
States v. Arms and Ammunition, 24 Fed. Cas. 863, as authority for hold-
ing, in libels of forfeiture in rem, it is sufficient to describe offense and
manner of its commission in words of statute creating; United States v.
Pond, 2 Curt. 268, Fed. Cas. 16,067, as to necessary allegations in indict-
ment for opening letter, which had been opened in postoffice, by one to
whom it was not addressed.
When cause will be remanded for amendment of pleadings.
Approved in The Abby Dodge v. United States, 223 U. S. 178, 66 L. Ed.
394, 32 Sup. Ct. 310, appljrii^ rule to libel in action for forfeiture for
violation of act regulating importation of sponges; The Martha, Blatchf.
& H. 166, Fed. Cas. 9144, as to allowance of amendments to pleadings;
and The Samuel Marshall, 49 Fed. 757, where libel claiming lien under
general maritime law was amended so as to assert lien under State law.
Distinguished in The Mabey, 10 Wall. 420, 19 L. Ed. 963, no sufficient
excuse having been shown for not taking evidence when case was before
lower court. «
8 Wheat. 391-397, 5 L. Ed. 644, THE 8ABAH; s. c., on second appeal, 1 Pet.
694, 7 L. Ed. 268.
Admiralty Jurlsdlctiton of District Court extends to cases of eeisure on
waters navigable by vessels of ten tons hurden or upward.
Approved in The Wave, Blatchf. & H. 240, Fed. Cas. 17,297, holding
rule applies although water lies within body of a State; United States v.
Winchester, 99 U. S. 374, 25 L. Ed. 480, but seizures made on land are
without its admiralty jurisdiction; Leland v. Ship Medora^ 2 Wood. & M.
109, Fed. Cas. 8237, does not extend to revenue seizures on land; The
Eagle, 8 Wall. 26, 19 L. Ed. 370, arguendo; Reporter's note to The Sarah
is cited on the subject of admiralty jurisdi<^tion in Waring v. Clark, 5
How. 455, 483, 486, 12 L. Ed. 233, 246, 247.
In cases of admiralty Jurisdiction questions of fact are determined by
the court.
Approved in The Margaret, 9 Wheat. 429, 6 L. Ed. 127, Ten Cases v.
United States, 34 Fed. 100, following rule.
8 Wheat. 398-406 NOTES ON U. S. REPORTS. 1238
Where seizures made on laad, United States Dirtrict Court proceeds 9B
court of common law, and must sulimlt questions of fact to Jury.
Approved in Four Hundred and Forty-three Cans of Frozen Egg Product
V. United States, 226 U. S. 180, 57 L. Ed. 178, 33 Sup. Ct. 50, upholding
pure food act of 1906 providing that procedure on seizure of goods con-
form to procedure in- admiralty, and providing for jury trial; United
States V. George Spraul & Co., 186 Fed. 408, 107 C. C. A. 669, under food
and drugs act, seizure being made on land, eourt proceeded under its
common-law jurisdiction; United States v.%One Hundred and Fifty Cattle,
3 Ariz. 136, holding claimant of property seized for violation of customs
laws liable for costs only in cases of pa3mient or forfeiture; Union Ins.
Co. V. United States, 6 Wall. 764, 766, 766, 18 L. Ed. 881, 882, and United
States V. Athens Armory, 2 Abb. (U. S.) 138, Fed. Cas. 14,473, affirming
same case, 35 Ga. 362, proceedings for confiscation and forfeiture of real
property used for insurrectionary purposes; Confiscation Cases, 7 Wall.
462, 19 L. Ed. 199, reaffirming rule; Gamhart v. United States, 16 Wall.
166, 21 L. Ed. 276, where striking out of answer denying facts in informa-
tion for breach of revenue laws, and rendering judgment thereon, was
held error; United States v. Distillery, 6 Biss. 490, Fed. Cas. 14,966;
United States v. Whisky, 1 Bond, 690, Fed. Cas. 16,938, proceedings in rem
for violation of internal revenue law; Re3Tiolds v. Steamboat, 10 Minn.
249, 260, not all proceedings in rem are proceedings in admiralty ; Ex
parte Graham, 10 Wall. 643, 19 L. Ed. 982, holding proceedings for con-
fiscation of real property used for insurrectionary purposes are not pro-
ceedings in admiralty, although they conform as near as may be to such
proceedings ; United States v. Woolen Cloth, 1 Paine, 437, Fed. Cas. 16,150,
and dissenting opinion in Confiscation Cases, 20 Wall. 113, 22 h, Ed. 325,
arguendo.
Where District Ctourt lias proceeded without Jurisdiction, Supreme Court
may remand cause with direction for amendment.
Cited in Stickney v. Wilt, 23 Wall. 164, 23 L. Ed. 54, 11 Bank Reg. 107,
reversing with direction to dismiss where Circuit Court had no jurisdic-
tion; dissenting opinion in Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S.
376, 379, 25 L. Ed. 204, 205, holding fact that subordinate court was with-
out jurisdiction does not prevent Supreme Court from assuming juris-
diction for purpose of reversing judgment rendered.
Adoption of common law in United States. Note, 22 L. B. A. 504.
Miscellaneous. Cited in Coffey v. United States, 116 U. S. 435, 29 L. Ed.
684, 6 Sup. Ct. 436, s. c, on rehearing, 117 U. S. 234, 29 L. Ed. 891, 6
Sup. Ct. 717, and United States v. Spirits, 28 Fed. Cas. 122, as authority
for holding general rules of pleading in regard to admiralty suits in rem
apply to a suit in rem for a forfeiture.
8 Wheat. 39&-406^ 5 L. Ed. 645, THE FBANOES ANB EUZA.
Not cited.
1239 NOTES ON U. S. REPORTS. 8 Wheat. 407-^63
8 Wheat. 407--421, 6 It. Ed. 407, THE LUMINABY.
In revenue case, where prima fade case made out by prosecutor, onus
prohandi is on claimant to explain difficulties of case.
Cited in United States v. Three Thousand Eight Hundred Boxes, 8 Sawy.
134, s. c., 12 Fed. 404, where claimant having failed to explain difficulties
of case, condemnation followed from defects of testimony; The Governor
Cushman, 1 Abb. (U. S.) 18; s. c, 1 Biss. 493, Fed. Cas. 6646, but acci-
dents may be explained; United States v. Matches, 2 Biss. 49, Fed. Cas.
16,559, where cases of matches were landed without consent of port col-
lector; United States v. Twenty-five Cases, Crabbe, 396, Fed. Cas. 16,563,
burden of proof is thrown on claimants when court is satisfied there was
probable cause for the proceedings; The Fideliter, Deady, 644, Fed. Cas.
4766, and Ten Hogsheads of Rum, 1 Gall. 191, Fed. Cas. 13,830, rule applies
in proceedings in rem; Lincoln v. Smith, 27 Vt. 358, applying principle to
a State case under statute prohibiting traffic in intoxicating liquor; United
States V. Tobacco, 6 Ben. 89, Fed. Cas. 16,106, arguendo; State v. Cun-
ningham, 25 Conn. 203, as an instance where greater effect was given to
evidence than it possessed at common law.
Distinguished in United States v. Thirty-one Boxes, 28 Fed. Cas. 60,
where a prima facie case was not established.
Presumption from failure to produce evidence. Note, 14 L. B. A. 470.
Miscellaneous. Cited in State v. Hooker, 22 Okl. 728, 98 Pac. 971, as
instance of seizure and condemnation without service of process on owner;
Glennon v. Britton, 156 111. 245, 40 N. E. 598, as instance where goods
were seized, condemned and destroyed without service of process on owner.
8 Wheat. 421-463, 6 L. Ed. 651, WOBMIiEY v. WOBMI^Y.
Trustee cannot purchase, or acquire by exchange, the trust property.
Approved in Hunting v. Safford, 183 Mass. 160, 66 N. E. 643, holding
where a guardian of G. and M. defaulted as to M. and a successor was
appointed, who was trustee of fund, the interest of which was payable
to G. and M. and said trustee credited former guardian with the amount
he should have paid G., on account of amount former guardian owed M.,
the trustee was not entitled to a credit against G; Michoud v. Girod, 4
How. 555, 11 L. Ed. 1099, where executors became purchasers of property
of their testator ; Tufts v. Tufts, 3 Wood. & M. 489, 491, Fed. Cas. 14,233,
a contract between an executrix and an expected purchaser, such purchaser
being a relative, whereby it was agreed purchaser would hold for executrix
under certain conditions, is voidable; Imboden v. Hunter, 23 Ark. 624,
79 Am. Dec. 117, holding mortgagee, with power of sale, cannot purchase
for his own benefit; White v. Ward, 26 Ark. 447, where rule was applied
to acts of agent; Culberhouse v. Shirey, 42 Ark. 28, applying rule to pur-
chase of trust property by guardian and administrator; Gfblson v. Dunlap,
73 Cal. 159, 14 Pac. 577, purchase of testator's property by executor, where
executor did not deal directly with cestui que trust; McCrory v. Foster,
1 Iowa, 276, and if any profit accrues from such purchase it shall go to
cestui que trust; MacGregor v. Gardner, 14 Iowa, 337, conveyance by agent
8 Wheat. 421-463 NOTES ON U. S. REPORTS. 1240
for purpose of acquiring title himself may be treated as fraudulent and
void ; Sypher v. McHenry, '18 Iowa, 235, question whether bargain was
advantageous to trustee is immaterial; Pratt v. Thornton^ 28 Me. 363, 48
Am. Dec. 497, following rule; Fisher v. Concord R. R. Co., 50 N. H. 205,
applying principle where agent loaned principal's money to himself;
Hawley V. Cramer, 4 Cow. 734, fact that transaction was fair and honest
is of no effect ; Clarke v. Deveaux, 1 S. C. 185, where trustee retained trust
property as his own, and turned over to his successor Confederate notes
which were represented as being equivalent to trust property; Armstrong
v. Campbell, 3 Yerg. 236, where trustee conveyed trust property to com-
pany of which he was a member; Hendee v. Cleaveland, 54 Vt. 149, hold-
ing guardian cannot sell his own property to his ward; Piatt v. Oliver,
2 McLean, 314, Fed. Cas. 11^15, arguendo.
Whenever interval must elapse between sale and application. of price by
trustee, purchaser not bound to look to application of money.
Approved in Beall v. Dingman, 227 111. 300, 81 N. E. 368, setting
aside sale by trustee made at unfavorable time for inadequate sum, when
purchasers were acquainted with conditions; Woodwine y. Woodrum, 19
W. Va. 74, where deed of trust authorized trustee to sell at his discretion
for cash, and from nature of facts money could not be applied for some
time.
"When trustee invested with discretion in disposition of trust fond, tmstors
suffer rather than purchaser.
« Cited in Sims v. Lively, 14 B. Mon. 449, where purchaser had no means
of knowing what proportion of devise, his purchase being part of, was
necessary to carry out testator's intention; Keister v. Scott, 61 Md. 509,
holding where trustee was empowered to sell property in one city and
was required to invest proceeds in property in another, at great distance
from first, purchaser is not bgund to see to application of money; Zucker
V. Karpeles, 88 Mich. 430, 50 N. W. 377, where vendor^ intrusted vendee
with title to goods, who mortgaged them to innocent party; Coonrod v.
Coonrod, 6 Ohio, 116, where devise of real and personal property was made
subject to bequest of one thousand dollars, to be invested in land at such
place as devisee might designate ; Garesche v. Levering Inv. Co., 146 Mo. 447,
48 S. W. 655, Norman v. Towne, 130 Mass. 53, Haydel v. Huick, 5 Mo. App.
275, Hughes v. Tabb, 78 Va. 325, arguendo.
Sales and conveyances by trustees. Note, 19 Am. St. Rep. 282, 283.
Equitable control or discretion vested in trustee. Note, 8 L. B. A.
(N. S.) 898.
When purchaser of trust property is charged with notice of facts yiMth
constitute breach of trust, sale is void as to him.
Approved in Tibbetts v. Terrill, 44 Colo. Ifi^, 96 Pac. 981, holding pur-
chaser with knowledge from wife, who received deed from husband in
fraud of his creditors was not bona fide purchaser; Safe Deposit etc. Co.
V. Cahn, 102 Md. 550, 62 Atl. 827, purchaser at private sale of corporate
stock bel<mging to trust estate with knowledge of order of court directing
1241 WORMLEY v. WORMLEY. 8 Wheat. 421-463
sale of stock at highest market price obtaining on. such board, holds it
subject to same trust to which it was subject in hands of original trustee;
Garesche v. Levering Inv. Co., 146 Mo. 447, 48 S. W. 666, holding where
devisee received from trustee under will shares of stock of corporation of
the estate incorporated, and had allowed trustee a bonus for compensa-
tion, he is not estopped from questioning the legality of the incorporation.
Cited in Gardner v. Gardner, 3 Mason, 221, Fed. Cas. 6227, cas#of pur-
chaser from devisee of lands charged with debts of devisor; Bwi^ v.
Castle, 23 111. 161, where creditors of husband took mortgage on property
conveyed to trustee. for wife's benefit; NichoUs v. Peak; 12 N. J. £q. 73,
where property was sold not for purpose of executing trust; Card well v.
Cheatham, 2 Head, 20, 22, where property held in trust for sole and
separate use of wife was sold, and proceeds were not invested or held
under same conditions: Laihar v. Hale, 79 Va. 168, where purchase was
from trustee with knowledge that trustee was selling trust property as
his own.
Duty of purchaser from life tenant, trustee or other donee of power
to sell to see to appliciition of purchase money. Note, 4 Ann. Cas.
S7r.
Bona fide purchaser, to be entitled to protection must be such until pur-
chase money is actually paid.
Approved in Johnson v. Georgia Loan etc. Co., 141 Fed. 697, bona fide
purchaser must allege and prove want of notice and actual payment of
purchase money, independently of recitals in deed; Dewey v. Whitiley,
93 Fed. 637, holding where one person had authority to sell all land of
another except a reserved piece, the fact that vendor had forgotten certain
equities in land sold would not affect purchaser; Wenz v. Pastene, 209
Mass. 363, 96 N. E. 793, holding purchaser at foreclosure sale took subject
to unrecorded lease of which he had notice before payment; Fowler v.
Merrill, 11 How. 396, 18 L. Ed. 744, where purchaser at execution sale
had notice, prior to payment of purchase price, that property purchased
was mortgaged; Lytle v. Lansing, 147 U. S. 70, 87 L. Ed. 84, 13 Sup. Ct.
269, case of purchase of negotiable municipal bonds; Wood v. Mann, 1
Sumn. 611, Fed. Cas. 17,961, holding a plea that part of purchase money
had been paid and balance was secured by mortgage, is bad; Merrill v.
Dawson, Hempst. 699, Fed. Cas. 9469, holding averment that purchase
money was paid before notice of fraud is absolutely necessary, and s. c,
p. 618, till the actual payment buyer is not injured; Wells v. Morrow,
38 Ala. 128, to same effect; Byers v. Fowler, 12 Ark. 286, 64 Am. Dec.
288, and Perkins v. Swank, 43 Miss. 368, holding answer of party claiming
to be such innocent purchaser must state all facts necessary to show he
is entitled to rights of innocent purchaser; Mackey v. Bowles, 98 Ga. 733,
26 S. E. 836, where person purchased of administrator land which latter
sold defrauding heirs; Sillyman v. King, 36 Iowa, 214, onus is on pur-
chaser to show purchase was inade in good faith ; Kitteridge v. Chapman,
36 Iowa, 361, execution of bond which has not been negotiated is not
equivalent pa3rment ; Hoffman Coal Co. v. Cumberland Co., 16 Md. 479 ; Halsa
8 Wheat. 421-4S3 NOTES ON U. S. REPORTS. 1242
V. Halsa, 8 Mo. 309, case of a purchaser with notice from purchaser with-
out notice under circumstances indicating fraud ; Paul. v. Fulton, 25 Mo.
164, where purchaser had not paid more than half of purchase money
when suit was brought; Bishop v. Schneider, 46 Mo. 482, 2 Am. Rep. 540*
allegations did not sho^ purchase money had been fully paid ; Arnholt
V. Hartwig, 73 Mo. 488, where purchaser gives his check for purchase
money ftnd orders it paid, after notice of creditor's claims, he is not a
bona fide purchaser; Dougherty v. Cooper, 77 Mo. 532, peirt of purchase
money had been paid when fraud was discovered; Greenlee v. Marquis,
49 Mo. App. 294, where notes had been given for purchase money, but
they had not been negotiated by vendor at time fraud was discovered;
People v. 0. B. Co., 92 N. Y. 103, purchaser was aware of facts before
delivery of deed or payment of purchase money; Boone v. Chiles, 10 Pet.
212, 9 L. Ed. 400, ai^endo; Cox Shoe Co. v. Adams, 105 Iowa, 409, 75
N. W. 318, and Jordan v. Pollock, 14 Ga. 160, suggesting part pajTnent of
consideration is sufficient; Wells-Fargo Co. v. Smith, 2 Utah, 52, as to
meaning of term **bona fide purchaser"; Winans v. Winans, 22 W. Va.
692, holding purchaser is liable for any part of purchase money paid by
him after notice of facts affecting validity of his title. *
Distinguished in Dufphey v. Frenaye, 5 Stew. & P. 242, where part of
purchase price was paid before notice of fraud, holding chancery will
protect purchaser to that extent; Hoult v. Donahue, 21 W. Va. 300, hold-
ing, where one has become bona fide purchaser of equitable title, subse-
quent notice will not prevent him from securing what has been purchased.
Righjs of purchaser for value without notice. Note, 21 E. R. 0. 727.
Improvements made on trust propetty by purchaser thereof, become a
charge on the property. . . ^
Cited in McPhee v. Guthrie, 51 Ga. 83, where purchase was made in
good faith and without notice of fraud.
Supreme Court will not permit its juilsdictlon to be affected by the joinder
or nonjoinder of mere formal parties.
Approved in Blackburn v. Portland Gold Min. Co., 175 U. S. ^75, 44
L. Ed. 279, 20 Sup. Ct. 224, holding under proceedings under Rev. Stats.,
§§ 2325, 2326, an applicant in land office for mining patent is necessary
party defendant; Regis v. United Drug Co., 180 Fed. 206, holding bill to
prevent infringement of patent did not present separable controversy as
to defendants, so as to prevent removal to Federal court; Atchison etc.
Ry, Co. V. Phillips, 176 Fed. 667, 100 C. C. A. 215, holding joinder of
formal parties of same citizenship as plaintiff as defendants did not pre-
vent removal to Federal court; Wallin v. Reagan, 171 Fed. 763, holding
joinder in ejectment of tenant at will of same citizenship as plaintiff
did not prevent removal to Federal court; Slater Trust Co. v. Randolpli-
Mascon Coal Co., 166 Fed. 178, holding joinder of party whose interest
was ministerial did not affect jurisdiction to proceed with cause, though
such party was not within jurisdiction; Rogers v. Penobscot Mining Co.,
154 Fed. 610, 83 C. C. A. 380, holding suit would proceed as to all parties
1243 WORMLEY v. WORMLEY. 8 Wheat. 421-463
of whieh cotirt had jurisdiction if deoree affecting them only could be
rendered ; Kuchler v. Greene, 163 Fed. 98, and North Carolina Mining Co.,
V. Wertfeldt, 151 Fed. 296, both holding where court had jurisdiction
of subject matter and necessary parties, bill would be dismissed as to
party not indispensable of whom court did not have jurisdiction; Cella
V. Brown, 136 Fed. 442, where, in suit to avoid contract to reorganize
certain railroads and for specific performance of contract to convey share
of pledged securities of roads, it was not alleged that railroads had done
anything in violation of contract, railroads not indispensable parties;
Boatmen's Bank v. Fritzlen, 135 Fed. 658, 68 C. C. A. 288, holder of prior
mortgage is not necessary party to foreclosure of junior mortgage; Qroel
V. United Elec. Co., 132 Fed. 254, in suit by stockholder on right of ac-
tion in corporation, coi'poration is indispensable party, and, for purposes
of Federal jurisdiction, will be aligned with defendants when officers are
opposed to complainant's action; Williard v. Spartanbuig, U. & C. R. Co.,
124 Fed. 802, holding railroad whose property has been sold and is out
of possession has no interest in action for damages against lessee of pur-
chaser; Carroll v. Chesapeake & 0. Coal Agency Co., 124 Fed. 311, hold-
ing that where plaintiff entered into contract with coal companies, defend-
ants, to purchase from them coal, but said companies were not to be
responsible for failure to deliver coal on account of strikes, and they were
prevented from delivering by unlawful acts of individual defendants, the
plaintiff could maintain action in Federal court independently of coal com-
panies, defendants, who could not be aligned with plaintiff to defeat juris-
diction of Federal court; Seaboard Air line Ry. v. North Carolina R. Co.,
123 Fed. 630, holding in proceeding to condemn right of way upon land
under lease neither lessor nor owners have any interest in controversy,
and that presence will not deprive lessee of right to remove action; Wat-
son V. Bonfils, 116 Fed. 159, holding citizenship of nominal parties is imma-
terial to jurisdiction of Federal court; Reese v: Zinn, 103 Fed. 97, holding
joining of formal parties as defendants when they might be made plain-
tiffs will not defeat jurisdiction of Federal court; Higgins v. Baltimore &
O. R. Co., 99 Fed. 641, holding in action against stockholder, involving
ownership of stock, corporation is not_ necessary party; Cameal v. Banks,
10 Wheat. 188, 6 L. Ed. 299, where objection to court's jurisdiction came
from mere formal parties; Wood v. Davis, 18 How. 469, 16 L. Ed. 461,
where attempt was made to oust court of jurisdiction by joining agents of
real parties in interest ; Sewing Machine Cases, 18 Wall. 586, 21 L. Ed. 922,
right of real defendant to remove cause to Federal court cannot be affected
by joining with him mere nominal party; Wilson v. Oswego, 151 U. S. 64,
38 L. Ed. 74, 14 Sup. Ct. 262, affirming right to remove cause to Federal
court where real parties defendant were not citizens of same State as
plaintiff; to same effect. Pond v. Sibley, 19 Blackf. 197, 7 Fed. 135, hold-
ing officers of corporation are mere formal parties; Society v. Hartland,
2 Paine, 543, Fed. Cas. 13,155, holding, where one is interested in subject
matter only, but nothing is asked of him, and his rights are not put in
issue, it is not necessary to make him a parly; Sands v. Smith, 1 Dill. 294,
8. c, 1 Abb. (U. S.) 372, Fed. Cas. 12,305, Hatch v. Chicago, R. L & P. Ry.
8 Wheat. 421-463 ' NOTES ON U. S. REPORTS. 1244
Co., 6 Blatchf. 116, Fed. Gas. 6204, where plaintiff joined**itizena of hi»
pwn State as nominal defendants with foreign corporation, real defend-
ant; Harrison v. Urann, 1 Story, 66, Fed. Gas. 6146, holding, whenever
court can divide the merits of a case as between the parties properly be-
fore it, it Mdll dispense with the joinder of those persons whose citizen-
ship, if they were made parties, would oust the jurisdiction of the court;
Mason v. Grosby, 1 Wood. & M. 361, Fed. Gas. 9234, where suit was main-
tained against parties to conveyance, although all interested in equity in
land were not joined as respondents; Ruckman v. Ruckman, 1 Fed. 590,
holding, in suit to deternfiine ownership of bond and mortgage, mortgagor
is formal party; Sioux City Ry. Go. v. Chicago Ry. Co., 27 Fed. 772, hold-
ing sheriff and other officials named in bill, having no real interest in sub-
ject of controversy, are nominal parties within rule; Holly Mfg. Go. v.
Chester Water Co., 48 Fed. 891 (affirmed, 53 Fed. 26, 3 U. S. App. 264),
as to assignors being nominal parties ; Carver v. Trust Co., 73 Fed. 12, hold-
ing, in suit to impeach for fraud a decree Qf a State Supreme Court, a
defendant who was not a party to that decree, because he had been dropped
from the case, as having no interest in it, before it reached Supreme Court,
is a mere formal party; Gordon v. Simonton, 10 Fla. 196, holding joinder
of improper parties cannot affect jurisdiction of court as to parties prop-
erly before it; Taylor v. Holmes, 14 Fed. 514, Shields v. Barrow, 17 How.
140, 15 L. Ed. 160, Smith v. Rines, 2 Sumn. 350, Fed. Gas. 13,100, Bunnel
V. Stoddard, 4 Fed. Gas. 682, Heriot v. Davis, 2 Wood. & M. 232, 233, Fed.
Gas. 6404, Connolly v. Wells, 33 Fed. 208, Wood v. Mann, 1 Sumn. 583,
Fed. Gas. 17,952, arguendo; Field v. Lownsdale, Deady, 291, Fed. Gas,
4769, Calden^'ood v. Braly, 28 Gal. 99, Cook v. Bank, 52 N. Y. 113, 11 Am.
Rep. 678, as an exception to general rule that all defendants must be
entitled to sue in Federal courts in order to permit removal of cause;
Bonaparte v. Camden Ry. Co., 1 Bald. 217, Fed. Gas. 1617, upholding juris-
diction over suit against 'corporation though some of its members are
aliens; Woolridge v. McKenna, 8 Fed. 668, and Voss v. Neineber, 68 Fed.
948, holding, in suit by infant, jurisdiction depends on citizenship of infant
and not on that of next friend; James v. Thurston, 6 R. I. 431, Hurst v.
Coe, 30 W. Va. 169, 3 S. E. 570, as to criterion for determining who is
formal party.
Distinguished in dissenting opinion in Florida v. Georgia, 17 How. 508,
16 L. Ed. 200, where parties were necessary ; Kirkpatrick v. White, 4 Wash.
599, Fed. Gas. 7850, holding a member of corporation is a real party in
interest when corporation is sued, and not a formal party; Ward v. Arre-
dondo, 1 Paine, 412, 413, Fed. Gas. 17,148, holding the holder of a deed
who is joined with grantor in suit to compel execution and delivery, is not
a mere nominal party ; Foss v. Bank, 1 McCrary, 477, s. c, 3 Fed. 187, trus-
tees, when in fact interested in litigation, are not formal parties ; Goodnow
V. Litchfield, 4 McCrary, 216, s. c, 47 Fed. 753, where assignee of alien
was held to be trustee.
Scope of term ''persons." Note, 1.9 L. E. A. 225.
Effect of treaties on alien's right to inherit. Note, S2 L. B. A. 178.
1246 SOCIETY ETC. v. NEW HAVEN. 8 Wheat. 464-495
Miscellaneous. Cited in Swiger v. Swiger, 58 W. Va. 130, 52 S. E. 28,
where husband conveys land directly to wife he cannot convey to another
legal title which remains in him in trust, or encumber same; Giers v. Hud-
son, 102 Ark. 241, 143 S. W. 917, listing cases cited by counsel*; Fields v.
Lamb, Deady, 431, Fed. Cas. 4775, as to reason for statute of 1866, relating
to removal of causes; Governor v. Ball, Hempst. 545, Fed. Cas. 530, not in
point ; as authority for holding principal is responsible for consequences of
acts of agent, Piatt v. Oliver, 2 McLean, 317, Fed. Cas. 11,115; Bound v.
Railway Co., 50 Fed. 864, as to power of courts of equity to review the use
of discretion given trustees; Moody v. Bibb, 50 Ala. 248, as to how person
may make himself trustee in invitum; Perea v. Harrison, 7 N. M. 676, 41
Pac. 531, application not clear.
8 Wbeat. 464^96, 6 K Ed. 662, 800IETT FOB THE PBOFAOATION OF
THE OOSFEIi ▼. NEW HAVEN.
Corporation endowed solely by private benef aetlons la private eleemosy-
nary corporation, though created by charter ftom government.
Cited iiL Cleveland v. Stewart, 3 Ga. 287, an academy which derived part
of its support from the government; Regents v. Williams, 9 Gill & J. 402,
81 Am. Dec. 90, 92, applying rule to university.
Capacity of priTate IndlvidualB, or corporatloiiB created by crown to hold
property not aff^pted by Bevolntlon.
Cited in Society v. Pawlet, 4 Pet. 502, 7 L. Ed. 985, in construction of
State statute which assumed Revolution had divested foreign corporation
of its property.
Courts of one State bave no JnrlBdiction to adjudge a forfeiture of ft
foreign corporation's ftancbises.
Approved in Edwards v. Schillinger, 245 111. 240, 187 Am. St Rep. 808,
88 L. B. A. (N. S.) 907, 91 N. E. 1051, holding where court had jurisdiction
of parties and subject matter of suit involving management of foreign cor-
poration and could grant effective relief without exercise of visit orial
powers, it had discretion to do so; Exporting Co. v. Locke, 50 Ala. 335,
where such an adjudication was sought.
»
Where terms of a treaty are general, courts will not, by construction,
make exceptions thereto.
Approved in Rhode Island v. Massachusetts, 12 Pet. 722, 9 L. Ed. 1260,
holding where no exception is made in terms to grants of power to United
States, or to restrictions on States, none will be made by implication or
construction.
CorporationB axe persons within section 6, treaty of peace of 1783, with
Great Britain.
Cited in McKinley v. Wheeler, 130 U. S. 636, 82 L. Ed. 1050, 9 Sup. Ct.
640, holding corporation may locate mining claims; Railroad Tax Cases,
8 Sawy. 265, 283, 13 Fed. 744, 758, holding corporations are persons within
8 Wheat. 496-^42 NOTES ON U. S. REPORTS. 1246
meaning of Fourteenth Amendment to Constitution; to same effect, Santa
Clara Railroad Tax Case, 9 Sawy. 194, 18 Fed. 404; Brown v. Sprague, 6
Denio, 549, as to effect of treaty of 1783 on rights of aliens; Magill v.
Brown, 16 Fed. Cas. 419, as an instance where corporation was considered
an individual.
Statute of Vermont, attempting to divest foreign corporation of prop-
erty, lield void as contrary to British treaty of 1783.
Cited in Pearsall v. Railway Co., 161 U. S. 662, 40 L. Ed. 843, 16 Sup. Ct.
708, as authority for holding legislation destructive of rights acquired by
corporate charter is void ; Wilder v. Lumpkin, 4 Ga. 219, as to retrospective
laws divesting acquired rights ; to same effect, Loveren v. Lamprey, 22 N. H.
445.
The termination of a treaty cannot divest ziglits of property already
vested under it.
Cited in Fiott v. Commonwealth, 12 Gratt. 577, where subject of Great
Britain acquired title to landv in Virginia prior to 1812; Dockery v. Mc-
Dowell, 40 Ala. 481, 484, as to right of legislaturei to deprive citizen of
vested rights in property ; People v. Gerke, 5 Cal. 382, as to rights of aliens
under treaties; also in dissenting opinion in Eakin v. Raub, 12 Serg. & R.
364.
Distinguished in Chinese Exclusion Case, 130 U. S. 610, S2 L. Ed. 1077,
9 Sup. Ct. 631, holding no rights can be acquired under a continued sus-
X)ense of a governmental power.
Treaties do not become extinguished ipso facto by war between the two
governments.
Cited in Pollard's Heirs v. Kibbe, 14 Pet. 413, 10 L. Ed. 519, arguendo.
Nonperformance of condition in grant of franchise — ^Whether judicial
act declaring forfeiture is necessary. Note, 5 Am. St. Rep. 805.
Miscellaneous. Cited in Bridge Co. v. Dix, 6 How. 542, 12 L. Ed. 549,
but not in point; People v. Society, 1 Paine, 656, Fed. Cas. 16,919, as to
i^ght of State to declare forfeiture of franchise or charter -for mere non-
user; Binney's Case, 2 Bland Ch. 147, as to right of foreign corporation to
sue in State courts; State v. Merchants' Ins. Co., 8 Humph. 252, as to
proceedings for forfeiture of charter.
8 Wheat. 495-542, 5 Ii. Ed. 670, DALY ▼. JAMES. T
Upon questions of much doubt, Supreme Court will acquiesce in adjudica-
tions of State courts where they apply.
Cited in Jackson v. Chew, 12 Wheat. 168, 6 L. Ed. 589, as to construction
of statute relating to local law of real property; Derby v. Jacques, 1 Cliff.
438, Fed. Cas. 3817, as to decisions affecting titles.
Questions of State law as to which State court decisions must be fol-
lowed in actions originating in, or removed to, Federal courts. Note,
40 L. K. A. (K. S.) 430.
1247 JOHNSON v. McINTOSH. 8 Wheat. 543-605
Where power o^ sale is given in will, the power caa be exercised only
in the precise manner indicated.
Approved in Satterfield v. Tate, 13^ Ga. 260, 64 S. E. 62, holding pur-
chaser with notice of power to sell under will took only such estate as
devisees had ; Waldron v. Chasteney, 2 Blatchf . 67, Fed. Gas. 17,058, where,
under facts, executor's acts were held to conform to his powers; De Vaughn
V. McLeroy, 82 Ga. 697, 10 S. E. 213, in construction of powers of executor
the intention of the donor of the power governs; dissenting opinion in
Morrow v. Brenizer, 2 Rawle, 193, arguendo.
Modified in Kidwell v. Brummagim, 32 Cal. 444, holding, where testator
in his will directs executor to sell real estate within one year, the power
to sell is not limited to one year unless there be express words in will to
show such was the intent of testator.
Miscellaneous. Cited in Gast v. Porter, 13 Pa. St. 536, as to powers of
executor.
8 Wheat. 643-606, 6 L. Ed. 681, JOHNSON ▼. McINTOSH.
Discovery of lands in America gave title to the government by whose
subjects or by whose authority it was made, against all other European gov-
ernments, which title might be consummated by possession.
Approved in Downes v. Bidwell, 182 U. S. 306, 45 L. Ed. 1114, 21 Sup. Ct.
784, 793, 794, holding when United States acquires territory by war it is
governed by military power until civil government is established by political
department; State v. Towessnute, 89 Wash. 481, 154 Pao. 807, holding
Indian treaty recognized mere possessor^ right to use land for sustenance;
Shively v. Bowlby, 152 U. S. 50, 88 L. Ed. 350, 14 Sup. Ct. 567, as to dis-
coveries and settlements made by citizens of United States in Oregon; also,
Case V. Loftus, 14 Sawy. 217, 39 Fed. 733, 5 L. R. A. 688; Stockton v. Will-
iams, 1 Doug. (Mich.) 560, to discoverers belong exclusive right to purchase
from the natives ; Montgomery v. Ives, 13 Smedes & M. 173, under this rule
the discoveries of the Cabots gave the English their original titles in this
country ; Worcester v. Georgia, 6 Pet. 544, 8 L. Ed. 495, but this rule does
not affect the rights of those already in possession; Holden v. Joy, 17
Wall. 243, 21 L. Ed. 534, arguendo; Caldwell v. State, 1 Stew. & P. 389,
as containing an exhaustive discussion of general subject.
While European nations respected rights of Indians as occupants, they
asserted title in territory to be in themselves.
Aproved in Lone Wolf v. Hitchcock, 187 U. S. 564, 47 L. Ed. 306, 23 Sup.
Ct. 221, holding right of Congress to allot to Indians in severalty lands held
in common in reservation under 31 Stats, at Large, 677, c. 813, could not be
taken away by treaty; United States v. Torrey Cedar Co., 154 Fed. 264, and
United States v. Paine Lumber Co., 206 U. S. 472, 61 L. Ed. 1142, 27 Sup.
Ct. 697, both holding restraint on alienation should not be exaggerated, and
Indian allottees under Stockbridge treaty of 1856 could authorize cutting of
timber for sale; Jones v. Meehan, 175 U. S. 8, 13, 44 L. Ed. 53, 54, 20 Sup.
Ct. 4-6, holding good title to lands of Indian tribe may be granted to in-
8 Wheat. 543-606 NOTES ON U. S. REPORTS. 1248
dividuals by treaty between the United States and the tribe; Ex parte Van
Moore, 221 Fed. 968, holding former Indian reservation lands held by
allottee under trust patent was Indian land subject to exclusive jurisdic-
tion of Federal court ; Parr v. United States, 153 Fed. 466, holding where
land was allotted to Indian woman under treaty of 1856, her surviving hus-
band had dower rights therein; Morris v. Bean, 146 Fed. 432, determining
riparian rights in Crow Indian Reservation; Territory v. Delinquent Tax
List, 3 Ariz. 311, 26 Pac. 313, holding railroad track and right of way
granted by government with consent of Indians, within Indian reservation,
not expressly excluded from territorial jurisdiction is subject to taxation
by territory ; State v. Dickinson, 129 Mich. 227, 88 N. W. 623, holding that
government does not recognize title to lands acquired under Indian deed;
Labadie v. United States, 6 Okl. 414, 51 Pac. 670, act of 1888, punishing cut-
ting timber on Indian reservation applies to Indian who cuts timber for
speculative purposes; Narragansett Indians, 20 R. I. 720, 40 Atl. 349, 367,
holding when sachem of Narragansetts conveyed lands by deed to colony of
Rhode Island, reserving certain lands to himself, the reservation did not
operate as a conveyance of the fee to the Indians; dissenting opinion in
Cherokee Nation v. Georgia, 5 Litt. 70, 8 L. Ed. 50, and this is a right in
the enjoyment of which they are entitled to protection from United States ;
Mitchell V. United States, 9 Pet. 746, 9 L. Ed. 296, and in determining what
lands are occupied, the habits and modes of life of the Indian must be
considered; United States v. Fernandez, 10 Pet. 304, 9 L. Ed. 434^ affirming
right of European nation to grant lands while still occupied by natives;
Marsh v. Brooks, 8 How. 232, 12 L. Ed. 1060, holding action of ejectment
may be maintained on Indian right to occupancy; United States v. Cook,
19 Wall. 593, 21 L. Ed. 211, holding Indians may cut and sell timber on
land occupied by them if it be for the purpose of better adapting land for
occupation, aliter, if cut for mere purpose of sale ; Beecher v. Wetherby; 95
U. S. 525, 526, 24 L. Ed. 441, 442, and Roberts v. Railway Co., 43 Kan. 106,
22 Pac. 1007, holding under grant from United States to State of section 16
of every township, the fee to section 16 of lands occupied by Indians was
in the State ; Buttz v. Railroad Co., 119 U. S. 67, SO L. Ed. 835, 7 Sup. Ct.
105, conveyance by United States to railroad company of lands occupied by
Indians, passes fee subject to Indians' right of occupation; Sparkman v.
Porter, 1 Paine, 471, Fed. Cas. 7143, holding purchaser from Indian receives
only mere right of possession, which is subject to extinguishment at will
of Indians; Caldwell v. Robinson, 59 Fed. 654, holding, further, this right
of occupation is subject to modification at pleasure of United States;
United States v. Alask. Assn., 79 Fed. 156, holding United States, as para-
mount source of title, may dispose -of public lands within Indian reserva-
tion without consent of Indians; Caldwell v. State, 1 Stew. & P. 338, 346,
where State asserted its right to extend its civil and criminal jurisdiction
over territory within its confines occupied by Indians; Byrne v. Alas, 74
Cal. 635, 16 Pac. 526, patentee to lands occupied by Indians takes it subject
to Indians' right of occupancy; East Haven v. Hemingway, 7 Conn. 198,
reaffirming proposition that Indians have no capacity to pass the fee to
lands occupied; Snell v. Railway Co., 78 Iowa, 94, 42 N. W. 590, right of
1249 JOHNSON v. McINTOSH. 8 Wheat. 643-605
possessioa in patentee of lands occupied by Indians vests immediately on *
abandonment by Indians ; Buck v. Holloway, 2 J. J. Marsh. 164, and Breaux
V. Johns, 4 La. Ann. 142, 50 Am. Dec. 557, where deed from Indians was
held to convey no title; Southampton v. Mecox Bay Oyster Co., 116 N. Y. 7,
22 N. E. 389, where title was claimed to have been derived f I'om Indians ; Doe
v. Welsh, 3 Hawk. 159, 169, holding further, as to when Indians holding land
.under treaty with United States will be considered purchasers; Comet v.
Winton, 2 Yerg. 145, and dissenting opinion, pp. 155, 159, majority holding
a grant within bounds of territory held by Indians, which territory had
never been ceded by Indians, conveyed no title; State v. Foreman, 8 Yerg.
338, 342, where act of legislature of Tennessee extending the criminal laws
of the State over territory occupied by Indians within the State was held
constitutional; Mining Co. v. Dickeit etc. Co., 6 Utah, 196, 5 L. B. A. 267,
^ Pac. 1007, treaty-making power of government may dispose of govern-
ment's title to Indians, without consent of Congress; Yeeder v. Guppy, 3 Wis.
526, affirming right of State to grant Indian lands while still in occupation of
Indians ; Cherokee Nation v. Georgia, 5 Pet. 48, 49, 8 L. £d. 42f Mitchell v.
United States, 15 Pet, 89, 10 L. Ed. 671, Seneca Nation v. Christy, 162 U. S.
289, 40 L. Ed. 972, 16 Sup. Ct. 830, arguendo; Goodfellow v. MucHcy, 1 Mc-
Crary, 244, Fed. Cas. 5537, Indian title is but a right of occupancy, fee
being in United States; Robinson v. Caldwell, 67 Fed. 395, 29 U. S. App.
468 , Fellows v. Denniston, 23 N. Y. 423, and Caldwell v. State, 1 Stew, ft P.
409, as to nature of Indians' title; in Danzell v. Webquish, 108 Mass. 134,
as bearing on question as to what Indians are entitled to share in division
of lands under statute of 1869; Coleman v. Tish-ho-mah, 4 Smedes & M; 48,
Howard v. Moot, 64 N. Y. 270, arguendo; Seneca Nation v. Christie, 126
N. Y. 136, 27 N. E. 278 , Garner's Case, 3 Gratt. 772, as to nature of title
Indians have to lands they occupy.
Distinguished in Francis v. Francis, 203 U. S. 238, 61 L. Ed. 166, 27 Sup.
Ct. 129, holding patent to Indian of land reserved to him by treaty gave
right to alienate land in absence of restriction in treaty; Chase v. United
States, 222 Fed. 597, 138 C. C. A. 117, holding treaty of 1865 with Omahas
was grant in fee of lands without right of alienation; Godfrey v. Iowa Land
& Trust Co., 21 Okl. 304, 95 Pac. 796, holding Seminole Indian allottee after
removal of restriction on alienation could convey land not designated as
homestead; dissenting opinion in United States v. Ash Sheep Co., 221 Fed.
587, 137 C. C. A. 306, majority holding under act of April 27, 1904, modify-
ing treaty with Crow Indians relating to purchase of lands by United
States, lands ceded to United States did not become public lands free from
operation of rules of Interior Department as to grazing; I^oe v. Wilson, 23
How. 463, 16 L. Ed. 686, affirming right of -Indian to convey his interest.
Tbe power of the crown to dismember royal provinces was asserted and
exercised.
Cited in Rhode Island v. Massachusetts, 12 Pet. 739, 9 L. Ed. 1266, as an
argument to show the regulation of boundaries between States is a political
power ; Montgomery v. Ives, 13 Smedes & M. 172, as to the manner of
changing boundaries.
1—79
8 Wheat. 543-606 NOTES ON U. S. REPORTS. 1250
The exclaslve right of BiitlBh government to lands occupied by Indians
passed to United States by treaty of peace.
Approved in United States v. Ashton, 170 Fed. 512, 517, holding Indian
allottees acquired no title to lands by executive order of 1857 setting apart
reservation, or by Constitution of State disclaiming title to land possessed
by Indians ; United States v. Moore, 161 Fed. 515, 88 Cr C. A. 455, holding
United States could eject from land allotted to Indians third person who
had ousted Indians; Morris v. Bean, 146 Fed. 432, where rights of Indians
were extinguished by opening lands for settlement, claim to riparian rights
as successors to Indians was ineffective ; Zeveley v. Weimer, 5 Ind. Ter. 668,
82 S. W. 948, holdii^ power to enforce treaty wjth Choctaws was in ex-
ecutive department, and courts could not enjoin merchant from exposing
goods within Choctaw territory in violation of treaty; Cherokee Nation v.
Georgia, 5 Pet. 48, 8 L. Ed. 42, holding Indians have only a possessory righ(
in lands they occupy; Thompson v. Doaksum, 68 Cal. 595, 10 Pac. 200, the
exclusive right to pre-emption of Indian lands' within United States lies in
Congress ; United States v. Four Bottles Sour Mash, 90 Fed. 722, in affirm-
ing primary source of title to public land in United States is in government;
Veale v. Maynes, 23 Kan. 24, 28, as to nature of Indian title.
On formation of government, prerogative of crown and powers of parlia-
ment devolved on people of United States.
Approved in Shively v. Bowlby, 152 U} S. 15, 88 L. Ed. 337, 14 Sup. Ct.
553, where it is held the title to soil of the sea, or its arms, below high-tide
mark is in the State, since at common law it was in the crown ; Sharpless v.
Mayor, 21 Pa. St. 160, 59 Am. Dec. 764, in determining the powers of the
legislature; State v. Foreman, 8 Yerg. 279, 317, therefore dominion exer-
cised by Great Britain over Indians passed to United States; McCready v.
Commonwealth, 27 Gratt. 988, holding constitutional an act of the Virginia
legislature forbidding the planting of oysters in waters of State by any
person other than a resident; Rhode Island v. Massachusetts, 12 Pet. 720,
738, 751, 9 L. £d. 1259, 1266, 1271, as bearing on question whether power
to determine boundary between States is judicial or political ; Bonaparte v.
Railway Co., 1 Bald. 220, Fed. Cas. 1617, as to restraints on legislative
power.
Where territory is acquired by conquest, the rights of property of the
conquered should remain unimpaired.
Cited in Strother v. Lucas, 12 Pet. 436, ^L. Ed. 1147, the cessation of
territory passes the sovereignty only; Rhode Island v. Massachusetts, 12
Pet. 749, 9 L. Ed, 1270, territory acquired by treaty; Groover v. Coffee, 19
Fla. 80, applying rule to territory acquired by cession and holding "grants"
by government of parts of a disputed territory over which it exercises
de facto political jurisdiction, are valid and will be respected; this-decision
was overruled on appeal, 123 U. S. 30, 31 L. Ed. 68, 8 Sup. Ct. 16, where
the proposition in Johnson v. Mcintosh was approved, but holding a grant
by State of land to which it has no title; Pollard v. Kibbe, 14 Pet. 412,
political jurisdiction over, conveys no title; Pollard Vj, Kibbe, 14 Pet. 412,
1
1251 JOHNSON V. McINTOSH. 8 Wheat. 543-605
10 L. Ed. 518| as to duties of conqueror to conquered; in United States v.
Huckabee, 16 Wall. 434, 21 L. Ed. 464, as ta when conquest is complete, but
does not appear to be in point; State v. Foreman, 8 Terg. 344, as to title
acquired by conquest.
According to theory of the British Constitution, all vacant lands are vested
in crown, as representing nation.
Approved in Howel v. Jessup, 160 N. Y. 256, 54 N. E. 684, holding under
facts of case British crown had authority to grant to town of Southampton
land and waters where tide did not ebb and flow; dissenting opinion in
Kean v. Calumet Canal Co., 190 U. S. 479, 47 L. Ed. 1144, 23 Sup. Ct. 659,
majority holding patent from United States, issued under swamp-land act,
September 28, 1850, c. 84 (9 Stats, at Large, 520), describing land ** whole
of fractional sections" conveys land under nonnavigable water beyond
survey line to extent of full subdivisions ; Mitchell v. United States, 9 Pet.
747, 9 L. Ed. 296, holding titles acquired under license from crown to pur-
chase from Indians are valid; Rhode Island v. Massachusetts, 12 Pet. 733,
9 L. Ed. 1264, affirming right of crown to make grants claimed by respective
States ; Martin v. Waddell, 16 Pet. 409, 10 L. Ed. 1012, holding valid grant
of lands made by crown to Duke of York, such lands having been dis-
covered by persons acting under authority of British government; also in
dissenting opinion, s. c, pp. 426, 427, 10 L. Ed. 1018, 1019, holding a
grant from the ci'own passes every interest in the soil; Dred Scott v. Sand-
ford, 19 How. 501, 15 L. Ed. 740, and Martin v. Den, 18 N. J. L. 499, as
containing a discussion of general doctrine underlying rujie ; Sage v. Mayor,
154 N. Y. 71, 61 Am. St Eep. 597, 38 L. R. A. 610, 47 N. E. 1098, as to right
of crown to interfere with vested rights; In re Indians, 40 Atl. 353,
arguendo.
An absolute title must be an exclusive title as to all others not compatible
with it.
Approved in Bamett v. Barnett, 117 Md. 268, Ann. Oas. 1913E, 1284, 83
Atl. 162, holding devise of estate to one generally or indefinitely with power
of disposition gave entire estate absolutely.
Miscellaneous. Cited in United States v. Arredondo, 6 Pet. 715, 8 L. Ed.
556, not in point ; in Cherokee Tobacco, 11 Wall. 619, 20 L. Ed. 229, as con-
taining general discussion of power of government over Indians; Herr v.
Johnson, 11 Colo. 396, 18 Pac. 343, as to the law that obtained in Colorado
prior to legislative enactments; Toll Road v. Edwards, 3 Colo. App. 77,
32 Pac. 550, as to meaning of term ** public grant"; Doyle v. McGuire, 38
Iowa, 412, not in point ; .Southampton v. Mecox Bay Oyster Co., 116 N. Y. 9,
22 N. E. 389, as an authority for holding there is no presumption that any
change was intended as to title to lands from the granting of a new charter to
a (Corporate town by the Governor of the province ; Moore v. Commissioners,
2 Wyo. 22, as authority for holding a territory has no authority to tax a
military post trader at a post located in an Indian reservation; Water
Power Co. v. Street Ry. Co., 172 U. S. 491, 48 L. Ed. 527, as to definition of
word ''absolute.'*
I
8 Wheat. 605-641 NOTES ON U. S. REPORTS. 1252
8 Wheat. 605-641, 5 L. Ed. 696, ORACIE ▼. PAUdEB.
Tlie charterer and master cannot by contract with Odvipet destroy owner's
lien for freight.
Approved in Jebsen v. A Cargo of Hemp, 228 Fed. 148, holding sub-
charterer bound to examine terms of original charter and govern itself by
its provisions reserving owner's lien on all cargoes for charter money;
M'Caldin v. Cargo of Scrap Iron, 111 Fed. 413, holding under charter that
cai^o consisted of pieces of iron weighing about one hundred pounds, that
cargo would be furnished and vessel would always be afloat, owners were
entitled to demurrage at charter rate for delay, because delay was caused
by loss in furnishing barges and various sizes of iron; Schooner Freeman
V. Buckingham, 18 How. 192, 15 L. Ed. S45, holding one who has made
advances on faith of bills of lading fraudulently issued by master and
special owner of ship, has no lien on ship as against general owner; Shaw
v. Thompson, 01c. 148, Fed. Cas. 12,726,. where shipper sought to evade
lien, claiming to have set off freight against debts owed him by charterers ;
The T. A. Goddard, 12 Fed. 180, holding master and charterer have no
authority to vary shipper's contract so as to deprive shipper of his lien
on ship for safe and careful transportation; Bird of Paradise, 5 Wall. 561,
18 L. Ed. 666, Kimball v. Ship Anna Kimball, 2 Cliff. 15, Fed. Cas. 7772,
Schooner Volunteer, 1 Sumn. 570, Fed. Cas. 16,991, Eliza 'sOargo, 1 Low.
84, Fed. Cas. 8517, Perkins v. Hill, 2 Wood. & M. 165, Fed. Cas. 10,987,
Ship Panama, 01c. 362, Fed. Cas. 10,703, and The Karo, 29 Fed. 654, 656,
arguendo.
Distinguished in Webb v. Anderson, Taney, 516, Fed. Cas. 17,318, where
owner was held to have lost his lien by surrender of merchandise trans-
ported; Raymond v. Tyson, 17 How. 62, 15 L. Ed. 50, where owner waived
lien by agreeing to stipulation in charter-party inconsistent with.
Authority of master to pledge owner's credit for supplies famished
vessel. Note, 2 £. E. 0. 546.
Bights and liabilities when charterers given possession and management
of ship, and when retained by owners.
Approved in The Del Norte, 119 Fed. 119, holding under charter, where
charterer was to take entire control of vessel and direct all officers and
crew who were appointed by owner, J;he captain and steward were not
agents of owner; The Del Norte, 111 Fed. 544, holding under charter giv-
ing master authority to control vessel while towing barges, and expressly
exempting owner for abandonment, when necessary in opinion of master,
charterer had no claim against owner for wrongful abandonment; Reed
V. United States, 11 Wall. 601, 20 L. Ed. 220, holding where vessel is let
to hire, chartererer taking possession, he becomes owner during* term of
contract; United States v. Shea, 152 U. S. 187, 38 L. Ed. 407, 14 Sup.^t.
521, as an authority which brings out the difference between the two kinds
of affreightment contracts; Webb v. Pierce, 1 Curt. 106, Fed. Cas. 17,320,
holding, where master hires a vessel ''on shares," he to have the entire
management, control and possession of her, he thereby becomes the owner,
)•
1263 GRACIE v. PALMER. 8 Wheat. 606^641
pro hac vice; Donahoe v.*Kittell, 1 Cliff. 139, Fed. Cas. 3980, where char-
terer becomes special owner of vessel, the master and crew become his
servants and are subject to his orders ; Hill v. Steamer, Golden Gate, Newb.
314, Fed. Cas. 6492, where charterers become special owners, they, and not
general owners,' are responsible for damages and contracts; Certain Logs
of Mahogany, 2 Sumn. 596, Fed. Cas. 2559, general owner will be deemed
owner, notwithstanding charter-party, if he retain control and possession
of ship; The T. A. Goddard, 12 Fed. 178, as to liability of those having
<*.harge of ship for proper stowage and transportation of goods; Pickman
\. Woods, 6 Pick. 252, 254, where entire charge of vessel is given to char-
terers, owner does not have such a possession of cargo that he has lien on
same for hire of vessel ; Bank v. Stewart, 26 Mich. 88, as to when charterer
becomes owner and assumes rights and obligation of; Clarkson v. Edes,
4 Cow. 480, where general owner parts with management to charterer, the
latter is presumed to be the owner so that former can have no lien for
freight; Robinson v. Chittenden, 69 N. Y. 528, as to rule where owner
retains control and management, but charters to another for voyage;
Schooner Volunteer, 1 Sumn. 568, Fed. Cas. 16,991, Hayes v. Campbell,
55 Cal. 426, 86 Am. Rep. 46, holding chartering of a ship for a voyage is
a letting of the carrying capacity of the vessel and not the vessel itself.
Liability of owner of hired vessel. Note, 13 Am. Dec. 88.
Demise of vessel by charter-party. Note, 5 Ann. Oas. 623.
Requisites of charter-party. Note, 5 £. B* 0. 630.
Contract of affreightment is subject to construction just as other contracts.
Cited to this effect and applied in construing charter-party in Raymond
V. Tyson, 17 How. 60, 15 L. Ed. 49.
The master of a chartered ship has no authority to alter contract entered
'into between charterer and owner.
Approved in Hinckley v. Wilson Lumber Co., 205 Fed. 979, holding
master could not be required to assume duties on behalf of charterer whicli
might prejudice interests of owner; Peer of the Realm, 19 Fed. 217, hold-
ing master may refuse to sign bill of lading where same does not conform
to terms of charter-party; Hart v. Leach, 21 Fed. 78, where master gave
charterers bill of lading for gold coin when charter-party did not provide
for transportation of same; Blue Star v. KeyBer, 81 Fed. 512, arguendo.
When contract between shipper and charterer subordinate to that between
owner and charterer.
Principle applied in Stephenson v. The Francis, 21 Fed. 725, where mate-
rialman tried to hold ship for supplies when he knew same were to be
furnished by charterer.
Right to maritime lien for supplies. Note, 24 E. B. 0. 654.
What contracts will support maritime lien. Note, 70 L. B. A. 869, 370,
872, 373.
8 Wheat. 642-676 NOTES ON U. S. REPORTS. 1254
Miscellaneous. Cited in The Ada, 233 Fed. *326, referring to case as
cited by counsel; Thomas v. Osbom, 19 How. 31, 15 L. Ed* 538, as bearing
on question as to when master may place lien on ship for repairs and sup-
plies; T. A. Goddard, 12 Fed. 182, not in point; Fordyce v. McFlynn, 56
Ark. 428, 19 S. W. 962, as to carrier's liability.
8 Wheat. 642r-675, 5 If. Ed. 705, OHIIiDBESS v. EMOBY.
It is not necessary In deriving title throngh indoisement of firm to allege
who compose firm.
Cited in Bond v. Wilkinson, 5 Blackf. 265, holding failure to aver Chris-
tian name of indorser is not objectionable; Cochran v. Scott, 3 Wend. 230,
following rule; Haviland v. Simons, 4 Rich. 342, case of assignment of bill
of exchange by firm; Winship v. Bank, 5 Pet. 576, 8 L. Ed. 2S8, to effect
that indorsement must be shown to have been authorized; Hodges v. Kim-
ball, 91 Fed. 848, arguendo.
Executors and administrators, by operation of law, succeed to all the
rights of their testators.
Approved in Barrielle v. Bettman, 199 Fed. 845, Laubscher v. Fay, 197
Fed. 880, and Atchison etc. Ry. Co. v. Phillips, 176 Fed. 667, 100 C. C. A.
215, all holding administrator was real party in interest in action in his
representative capacity ;,Popp v. Cincinnati, H. & D. Ry. Co., 96 Fed. 467,
holding under Rev. Stats. Ohio, § 6133, permitting foreign administrators
to sue, he may prosecute aft action for death by wrongful act; Costley v.
Wilkerson, 49 Ala. 212, and Christmas v. Griswold, 8 Ohio St. 562, where
both members of a partnership having died, the right of the administrator
of the one which died last to settle up the business was affirmed ; Augusta
V. Kimball, 91 Me. 608, 41 L. R. A. 477, 40 Atl. 668, nonresident trustees
cannot be taxed for trust property removed from State, although they
qualified as such trustees in State seeking to impose tax.
Assignees claim by the act of the paities. .
Cited in McNutt v. Bland, 2 How. 15, 11 L. Ed. 161, holding, for purpose
of determining jurisdiction in Federal courts, assignors will be considered
real parties in interest ; Bradford v. Jenks, 2 McLean, 134, Fed. Cas. 1769,
and if he sues in Federal courts musC show his assignor might have done
so ; United States Bank v. McNair, 56 Fed. 325, holding, if assignor cannot
sue in Federal courts, then his assignee may not do so.
Federal courts have Jurisdiction of suits by or against executors and
administrators.
Approved in Sheltman v. Taylor's Committee, 116 Va. 764, 82 S. E. 699,
applying rule to nonresident committee of lunatic; Clarke v. Mathewson,
2 Sumn. 263, Fed. Cas. 2857, 12 Pet. 171, 9 L. Ed. 1044, and Rice v. Hous-
ton, 13 Wall. 67, 20 L. Ed. 484, where administrator was considered the
real party in interest; Coal Co. v. Blatchford, 11 Wall. 175, 20 L. Ed. 180,
holding like rule applies in action by or against trustees ; dissenting opinion
in Florida v. Georgia, 17 How. 499, 16 L. Ed. 196. Harper v. Norfolk Ry.
J"
1265 CHILDRESS v. EMORY. 8 Wheat. 642-675
Co., 36 Fed.* 104, suit by administrator to recover damages for causing
death of his intestate; Wade v. Sewell, 56 Fed. 131, citizenship of trustee
and not that of parties he represents determines jurisdiction of Federal
courts ; Hill v. Henderson, 6 Smedes & M. 356, affirming right of nonresident
executor to remove suit to Federal court; Melius v. Thompson, 1 Cliff. 131,
Fed. Cas. 9405, Reinach v. Atlantic Ry. Co., 58 Fed. 38, Middlebrook v.
Insurance Co., 14 Conn. 310, arguendo; Sharp's Rifle Co. v. Rowan, 34
Conn. 332, 91 Am. Dec. 729, where jurisdiction depends on the party, it is
the party on the record. ^
Distinguished as having no bearing on question for which cited in Goff v.
Norfolk Ry. Co., 36 Fed. 301.
Foreign judgments against an executor or administrator. Note, 27
L. R. A. 114.
In action on a note, a declaration tliat A B, by hit agent, O, made his
note, is good in suit against A B.
Approved in Duval Investment Co. v. Stockton, 54 Fla. 300, 45 South.
498, allegation that corporation by named agent, ''who was thereto duly
authorized," made agreement sufficiently alleged agency; Tyler v. Woer-
ner, 158 Ky. 712, 166 S. W. 178, holding sufficient allegation of employ-
ment by agent without alleging agent's authority; Sherman v. Comstock,
2 McLean, 20, Fed. Cas. 12,764, as to similar declaration in action on a
check.
Objection that plaintiff is not executor or administrator most be taken
by plea in abatement and not by general demurrer.
Cited in Kane v. Paul, 14 Pet. 42, 10 L. Ed. 346, holding, under plea of
general issue, a certifleate of probate and qualification shows right in execu-
tor; dissenting opinion in Noonan v. Bradley, 9 Wall. 408, 19 L. Ed. 762,
majority holding plea which puts in issue plaintiff's representative capa-
city is good plea in bar; Dental Co. v. Wetherbee, 2 Cliff. 562, Fed. Cas.
3810, holding objection to plaintiff corporation's capacity to sue must be
taken by plea in abatement; Johnson v. Wilson, 1 Pinn. 68, holding fur-
ther as to proper procedure in objecting to right of foreign administrator
to sue; Weathers v. Newman, 1 Blackf. 233, Cotton v. Ward, 45 Ala. 361,
arguendo ; Pollard v. Buttery, 3 Blackf. 239, as authority for holding a plea
of the general issue, where executor sues on cause of action arising during
lifetime of testator, admits plaintiff is such executor.
Modified in Noonan v. Bradley, 9 Wall. 401, 17 L. Ed. 760, holding objec-
tion to appointment of administrator may be taken by special plea in bar.
Denied in Thomas v. Cameron, 16 Wend. 682, where the statement in
Childress v. Emory is said to be dictum.
Distinguished in Black v. Allen Co., 42 Fed. 624, 9 L. B. A. 437, if statute
requires of foreign administrator ancillary letters in State where he sues,
a bill in equity which shows on its face that this has not been done may
be attacked by demurrer.
Grounds for abatement. Note, 1 E. B. 0. 191,
8 Wheat. 675-^90 NOTES ON U. S. REPORTS. 1256
Wager of law is aboliflhed In the United States.
Cited in Thompson v. French, 10 Yerg. 456, following role; Raleigh
County Bank v. Poteet, 74 W. Va. 515, L. R. A. 1915B, 928, 82 S. E. 334,
holding negotiable instruments law did not legalize contracts forbidden by
policy of law of States.
Extent of adoption of common law. Note, Ann. Cas. 1913E, 1238.
Miscellaneous. Cited in dissenting opinion in Marshall v. B. & 0. Ry.
Co., 16 How. 350, 14 L. Ed.- 968, as to citizenship of corporation; Adams v.
Douglas County, McCahon, 241, Fed. Cas. 52, as to amount involved in
controversy to give iFederal courts jurisdiction ; The Boston, Blatehf . & H.
314, Fed. Cas. 1669, as an exception to common-law rule that administra-
tors and executors must obtain letters within jurisdiction where court sits.
8 Wheat. 675-681, 5 L. Ed. 713, SIOIiAB ▼. HATWOOD.
Judgment on plea of plene admlnlstravlt, If against administrator, unless
plea is false, should be de bonis testatoris.
Cited in Smith v. Chapman, 93 U. S. 42, 23 L. Ed. 796, holding, in action
against executor upon contract of his testator, unless devastavit is shown,
judgment de bonis propriis is erroneous; Justices v. Sloan, 7 Ga. 39, such
should be form of judgment whenever executor or administrator is sued
in his representative capacity, except where he pleads to release himself
and pleas are found against him. --
In action against administrator, if plea of plene adminlstravlt be found
against administrator, verdict ought to find amount of assets unadministered.
Cited in Janett v. Wilson, 1 Ark. 140, and if verdict does not find spe-
cially amount of assets in hands of administrator, judgment , founded
thereon is bad; King v. Anthony, 2 Blackf. 132, action against adminis-
trator; Johnson v. Hawkins, 2 Blackf. 461.
Modified in Thrash v.- Surawalt, 5 Ala. 16, holding if verdict be for
plaintiff on such plea, it will be concluded jury have passed on quantity
of assets and affirmed plaintiff's allegations.
Miscellaneous. Cited in Folger v. Shaw, 2 Wood. So M. 546, Fed. Cas.
4899, as instance where judgment was rendered in case where only one
party appeared and argued cause.
8 Wheat. 681-690, 5 L. Ed. 714, CITY OF WASHINOTON v. PBATT.
If the sale of one or more lots produce amount of taxes actually due on
the whole, city cannot proceed to sell further.
Cited in Mason v. Fearson, 9 How. 257, 18 L. Ed. 129, holding subsequent
legislation on the general subject did not affect this rule ; Penn v. Clemans,
19 Iowa, 380, as to right to sell for taxes several distinct parcels of land
in gross.
Where several lots are assessed to the same person, the lien on each lot
is several and distinct.
1267 SNEED v. WISTER. 8 Wheat. 690-697
Cited in Fowler v. St. Joseph, 37 Mo. 239, where assessment for street
improvements was made on property adjoining street improved.
Under act of 1812 for sale of lots for delinqnent taxes in dty of Wash-
ington, advertisement must contain particular statement of amount of taxes
due on each lot.
Cited in Lyott v. Hunt, 11 Ala. 313, 46 Am. Dec. 224, holding further
as to what must be shown by one claiming title through tax sale; Cahoon
v. Coe,^57 N. H. 569, in all cases of sale for taxes every prerequisite to
the exercise of the power must precede its exercise; to same effect, Morrill
V. Taylor, 6 Neb. 243.
tTnder act of 1812, providing for sale of lots for delinquent taxes in city
of Washington, sale is illegal unless lots assessed to proper owners.
Approved in Bursey v. Lyon, 32 App. D. C. 241, holding deed to north
half of lot made by court trustees appointed to sell south half of lot vested
no title; Kann v. King, 25 App. D. C. 184, applying rule to land in Dis-
trict of Columbia assessed to former owner who had been dead twenty-
five years ; Tracy v. Reed, 13 Sawy. 629, 38 Fed. 74, 2 L. R. A. 778, constru--
ing similar Oregon statute; Milner v. Clarke, 61 Ala. 260, in construing
similar Alabama statute; Dowell v. Portland, 13 Or. 252, 263, 10 Pac.
309, 315, where sale was made under an assessment to stranger to title,
sale was held void; Hawthorne v. Portland, 13 Or. 277, 278, 10 Pac. 346,
liolding, where statute requires assessment to be made in name of owner,
an assessment to the estate of H. is insufficient.
Distinguished in Alvord v. Collin, 20 Pick. 426, on statutory grounds.
Statutes affecting rights of freehold must be strictly construed.
Approved in Warden v. Broome, 9 Cal. App. 174, 98 Pac. 254, holding
tax sale void when delinquent list incorrectly stated amount due; Mason
v. Fearson, 9 How. 260, 18 L. Ed. 260, as applicable to statute providing
for tax sales; Early v. Doe, 16 How. 619, 14 L. Ed. 1083, a sale for taxes
which does not conform to provisions of statute is void; Scott v. Babcock,
3 G. Greene, 143, holding tax deed invalid because of failure of tax col-
lector to observe provisions of statute.
Miscellaneous. Cited in United States v. Thoman, 156 U. S. 359, 39
L. Ed. 452, 15 Sup. Ct. 380, as to construction to put on word ''may" in
statute conferring a power to be exercised for the benefit of the public;
Carrol v. Perry, 4 McLean, 26, Fed. Cas. 2456, as to court of equity exer-
cising concurrent jurisdiction with court of law.
8 Wheat. 690-697, 5 L. Ed. 717, SNEED v. WISTER.
If Judgment be on contract for payment of money, party is entitled to
interest in action upon appeal bond.
Cited in The Wanata, 95 U. S. 618, 24 L. Ed. 467, as to right to recover
interest and costs from sureties on appeal bond in admiralty proceeding.
Interest on unliquidated damages. Note, 28 L. B. A. (N. S.) 8,
8 Wheat. 697-698 NOTES ON U. S. REPORTS. 1258
Defendant cannot crave oyer of a deed In an action on a lK>nd for per-
formance of covenants In deed.
Cited in Whittenton Co. v. Memphis Co., 21 Fed. 899, in constroing Ten-
nessee statute as to when profert is necessary; Mealey v. Insurance Co.,
23 Fed. 25, on general subject of oyer.
Distinguished in Jackson v. Rundlet, 1 Wood. & M. 384, Fed. Cas. 7145,
on ground that the question was not raised.
Oyer is not demandahle of a record.
Cited in Renner v. Reed, 3 Ark. 343, holding oyer of original writ can-
not be required.
Nil debet ia an improper plea to an action upon a specialty or deed, where
it is fomidation of action.
Cited in Anderson v. Sloan, 1 Colo. 487, and Crigler v. Quarles, 10 Mo.
326, following rule.
Miscellaneous. Cited in Fifth Baptist Church v. Baltimore etc. R. Co.,
2 Mackey (D. C), 462, to point that principal case led to modification of
rule as to interest rate on judgments.
8 Wheat. 697-698, 5 Ii. Ed. 719, HUGH v. HIOOS.
No action at law will lie on the decretal order of a court of equity.
Approved in Israel v. Israel, 148 Fed. 578, decree for alimony and costs
suppoi*ts action in another state for sum due at time of rendition and which
is absolutely awarded, but not for future payments; Elliott v. Ray, 2
Blackf. find.) 31, unless the decree be foreign and have, by statute, the
effect of a judgment at law; Woodruff v. Clark, 6 Blackf. 338, holding, in
action of assumpsit, defendant cannot set ofiE decree in chancery in his
favor; Boyle v. Schindel, 52 Md. 4, 5, holding action at law will not lie
in same jurisdiction to recover sum of money decreed to be paid by equity;
Van Buskirk v. Mulock, 18 N. J. L. 191, action to recover alimony.
Criticised in Pennington v. Gibson, 16 How. 79, 14 L. Ed. 852, holding
action of debt may be maintained upon a decree in equity which is for a
specific amount.
Denied in Knapp v. Knapp, 59 Fed. 642, where action at law was main-
tained on decree in equity awarding alimony; Green v. Foley, 2 Stew. & P.
443, debt is maintainable on decree in chancery for pajrment of money ren-
dered in another State ; Phillips v. Thompson, 3 Stew. & P. 382, ai^uendo ;
Mutual Ins. Co. v. Newton, 50 N. J. L. 574, 14 Atl. 758, although case goes
off on another point ; Thrall v. Waller, 13 Vt. 235, 37 Am. Dec. 593, hold-
ing action of debt will lie upon decree fixing balance of account between
partners.
Actions at law upon decrees in equity. Note, 11 Am. Dec. 724.
Enforcement of decree in equity by action at law. Note, 11 Ann. Gas.
660.
Equity jurisdiction to enforce foreign decree for alimony. Note, 9
L. B. A. (N. S.) 1071.
1259 GRACIE v. PALMER. 8 Wheat. 699-VOO
8 Wheat. 689-700, 5 L. Ed. 719, OBAGIE v. PAUIEB.
In action in United States Circuit Oourt it is not necessary to aver on
record that defendant Is an inhabitant of district.
Approved in Matter of Moore, 209 U. S. 501, 505, 14 Ann. Gas. 1164, 52
L. Ed. 909, 911, 28 Sup. Ct. 706, holding either party could waive objec-
tion that suit was not brought in or removed to particular Federal court
provided by statute; Merko v. Sturm etc. Co., 233 Fed. 70, holding section
2545, Stats. 1909, providing for removal of actions, applied where action
commenced in Federal court was dismissed because not brought in State
of defendant's residence; Puget Sound Sheet Metal Works v. Great North-
ern Ry. Co., 195 Fed. 352, holding under judicial code of 1911 suit in State
court between nonresident plaintiffs and foreign corporation was not re-
movable to Federal court for diversity of citizenship ; Harding v. Standard
Oil Co., 170 Fed. 654, 655, 656, holding on removal of cause where record
shows diversity of citizenship but that neither party is citizen of district,
Federal court acquires general jurisdiction and can permit amendment to
petition for removal to show plaintiff is* not resident of district; Scott v.
Hoover, 99 Fed. 249, holding under Code Civ. Proc. Cal., § 396, trial may
be had in any county unless defendant demands change to proper county,
when he answers or demurs, that objection is waived by demurring or
answering without making demand; dissenting opinion in M. Fisher, Sons
& Co. V. Crowley, 7 W. Va. 329, 4 Ann. Oas. 282, 50 S. E. 429, majority
holding defect in summons not waived by pleading to merits after order
overruling motion to quash, to which exception was taken; Feese v. Phelps,
1 McAU. 17, Fed. Cas. 13,818, if allegations show diverse citizenship, that
is sufficient; Hall v. Mobley, 13 Ga. 319, holding it is not indispensable to
aver residence of defendant in county where suit is brought.
Modified in Laskey v. Newtown Co., 50 Fed. 635, holding under acts of
1887 and 1888, where jurisdiction depends on diverse citizenship only, com-
plaint must show that one of the parties resides in district where action is
brought ; to same effect. Central Trust Co. v. Virginia Iron Co., 55 Fed. 773.
Distinguished in United States v. Mayer, 235 U. S. 70, 59 L. Ed. 136, 35
Sup. Ct. 16, holding where District Court raised question of jurisdiction of
motion made after term to vacate judgment, consent of United States at-
torney to consider case on merits did not confer jurisdiction.
Where defendant sued in United States Circuit Court, in district of which
he is not resident, general appearance is waiver of Irregularity.
Approved in Iowa etc. Min. Co. v. Bliss, 144 Fed. 449, following rule;
Newman v. Schwerin, 61 Fed. 871, holding in suit between citizens of dif-
ferent States, although petition for removal is not filed until after demur-
rer filed in State court, if no motion to remand is made in Circuit Court,
it is waived; Piatt v. Massachusetts Real Estate Co., 103 Fed. 706, hold-
ing under Federal judiciary act of 1887-88, providing that suit may be
brought in district of plaintiff or defendant, that defendant waives right
by entering appearance in suit brought in any other district; State v.
Thacker Coal & Coke Co., 49 W. Va. 143, 38 S. E. 540, holding general
8 Wheat. 699-700 NOTES ON U. S. REPORTS. 1260
appearance for purpose of taking advantage of defective service waives
defect ; Blair v. Henderson, 49 W. Va. 285, 38 S. E. 554, summons in action
brought before justice by infant plaintiff is not void, and general appear-
ance waives defect; dissenting opinion in Fisher v. Crowley, 57 W. Va.
329, 50 S. E. 429, majority holding defendant appearing in court of record
to quash summons does not waive defective jurisdiction by failing to recite
that appearance is only to object to jurisdiction; Martin v. Baltimore &
Ohio Ry. Co., 151 U. S. 688, 38 L. Ed. 817, 14 Sup. Ct. 539, as to failure
to object to petition for removal of cause until after trial of cause;* Interior
Co. V. Gibney, 160 U. S. 220, 40 L. Ed. 402, 16 Sup. Ct. 273, provision in
judiciary act as to particular district in which defendant shall be sued, con-
fers a personal privilege which may be waived; Winans v. McKeon Co.,
6 Blatchf. 219, Fed. Cas. 17,862; McCloskey v. Cobb & Co., 2 Bond, 18,
Fed. Cas. 8702, following rule; Flanders v. Insurance Co., 3 Mason, 160,
Fed. Cas. 4852, corporation having entered general appearance, it cannot
object to service; Page v. Chillicothe, 6 Fed. 601, act of Congress dividing
district, of Ohio and providing suits shall be brought in district of which
defendant is a resident, confers a personal privilege which may be waived ;
Edwards v. Insurance Co., 20 Fed. 453, defendant having removed cause
cannot object that it was originally improperly brought; Romaine v.
Union Co., 28 Fed. 638, 639, where authorities are collected; Spies v.
Chicago Ry. Co., 32 Fed. 713, after court has obtained jurisdiction, fact
that case can be tried with greater convenience in district of defendant's
residence, is not good cause for removal; Piatt v. Manning, 34 Fed. 818,
and Cooley v. McArthur, 35 Fed. 373, if defendant waives this x)ersonal
privilege, plaintiff cannot make it for him; Southern Ex. Co. v. Todd, 56
Fed. 106, 12 U. S. App. 351, holding, under acts of 1887 and 1888, which
require when jurisdiction is founded on diverse citizenship alone, suit must
be brought in district of residence of either plaintiff or defendant, the act
confers a personal privilege which may be waive^d by general appearance;
Creagh v. Insurance Co., 83 Fed. 850, 851, filing of petition and bond for
removal of case from State court constitutes a waiver of right to object
to jurisdiction in Federal court; Lee v. Insurance Co., 15 Fed. Cas. 142,
applying rule where consent to service according to State law was filed by
corporation in auditor's office; Thomburg v. Savage Min. Co., 23 Fed. Cas.
1120, and Wilson v. Pierce, 30 Fed. Cas. 154, following rule ; Baars v. Gror-
don, 21 Fla. 36, general appearance waives process; Bank of VaUey v.
Bank, 3 W. Va. 391, and Mahany v. Kephart, 15 W. Va. 618, appearance
for any purpose other than to take advantage of defective process is waiver
of irregularity; Shepherd v. Brown, 30 W. Va. 18, 3 S. E. 189, holding
repeated appearance to a notice waives objection that it was not served
on time; Blackburn v. S. M. Co., 2 Flipp. 531, Fed. Cas. 1467, where juris-
diction of corporation was acquired by its appearance and answer; Clarke
V. Navigation Co., 1 Story, 540, Fed. Cas. 2859, arguendo; Winter v. Lud-
low, 30 Fed. Cas. 334, Buckingham v. Bailey, 4 Smedes & M. 546, as to when
jurisdiction is conferred by consent, Denniston v. Potts, 11 Smedes & M. 41,
as to when party may confer jurisdiction by waiving right to be sued in
district or county of which he is resident.
1261 ^ GRACIE V. PALMER. 8 Wheat. 699-700
Distinguished in Shaw v. Qnincy Mining Co., 145 U. S. 453, 36 L. Ed.
178, 12 Sup. Ct. 938, where defendant appeared specially for purpose of
taking" objection; Steele v. Harkness, 9 W. Va. 24, where defendant ap-
peared specially to take advantage of irregularity in process, and his objec-
tion being overruled he answered to action.
Modified in Trust Co. v. Virginia Iron Co., 65 Fed. 773, holding, under
statute of 1887 and 1888, where jurisdiction depends on diverse citizenship
alone^ either plaintiff or defendant must be resident of district where
action is brought in order to confer jurisdiction of court.
3 bios Ob oaa bii \
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