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» ^^^^ nMoiftg Root] 









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 




Okl. Cr 



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 




(2 Dallas to 241 United BUtes Reports) 





















2 Dallas to 8 Wheaton, Inclusive 

San Francisco 


RochcstoT, N. Y. 



Copyright, 1899 






Copyright, 1909 



Copyright,* 1917: ; •: .. r 

*'. • • • • : -•• •'!.;♦•• • ; 

r» • 



San Francisco 

Thb Filhxr Brothers Electrotype Company 

Typographers and Stereotypers 



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. 

San Francisco, Cal., January, 1917. 



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. 



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. 

San Francisco, August, 1899. 

» 4 

• ' ''. 

^ - • 





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 

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 

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 

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 

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 







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 


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 

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 

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 


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 . , 



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 

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 

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. 



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. 

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 

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 

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 

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 

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 


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 


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 

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. 


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, 

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' 

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, 

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^ 



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 

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. 

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 

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 

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 

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 

The right to waive tort and sue on assumpsit. Note, 1S4 Am. St. Rep. 

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 

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 

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 

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 

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. 


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. 

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 


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- 


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 

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 

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. 

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 

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. 

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 

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 

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- 

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 

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 

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 

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 

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 



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 
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 

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 

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 

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. 






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- 

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, 

Baprems Court htm no jnrlsdiction of salt by State respecting territory 
onlflss sabstantlal xigbt of soil as distinguished from mere political jurisdiction 


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- 


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 


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 

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 

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. 


LeglaUtive power, when undeflned, inclndes as well judicial and exeeutlirt 

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 

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 

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. 





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. 

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- 

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, 

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. 


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 

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 


▼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 

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 

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 

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 

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- 



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. 


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 p go p ri ety 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 

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.), 

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 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 

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. 

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 

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. '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, 

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. 

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 

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- 

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 

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, 

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 


1 Cr. 309-318 



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. 

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.) 


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 
proper l y 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, 

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 

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* 




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 




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- 




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 / • 

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. 


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. ' 








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 

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 

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 

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 • 

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. 

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 




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 

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 



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. 

Estoppel of party invoking jurisdiction to deny it. Note, 16 L. B. A. 

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. 



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 



2 Cr. 127-169 NOTES ON U. S. REPORTS. 188 


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 




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 

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 

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, 



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 


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. 


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. 

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- 

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- 

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 

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 


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 

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; 


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 

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 

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. 


217 HEPBWRN V. ELLZEY. 2 Cr. 44&-453 

See also State t. White, 23 Tex. Supp. 613; State ▼. Burke, 33 La. Ann. 

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, 







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. 


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- 

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 

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. 

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 

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 

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 



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 

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 


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- 

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 

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- 

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 

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 

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 

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, 

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 

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. 


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. 

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. 


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- 

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 

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.) 

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. 

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 

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« 

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 

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 

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. 




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. 

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- 

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 

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- 

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. 






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. 


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 

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 

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 


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 

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 


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, 

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. '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. 

Acc omm odation 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. 

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. 


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 


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. 

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 


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, 

Be f naal 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, 

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. 

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, 


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.) 

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 

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; Cars