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Full text of "Notes on the United States Supreme Court reports, supplementary to Rose's Notes on United States reports, showing the present authority of each case as disclosed by the citations as found in all the reports both federal and state from the publication of Rose's Notes up to and including July l, 1904, with parallel references to American state reports and the Reporter system"

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NOTES 



ON THX 



UNITED STATES SUPREME COURT REPORTS 



SUPPLEHENTABT TO 



BOSE'S NOTES ON UNITED STATES REPOBTS 

8B0WIXO TBB PRBSKMT ADTHORITT OF EACH 
CASK AS DIBCL08KD BT TBI 



CITATIONS 



AS FOUHD nr ALL TBI RXVORT8 BOTH FBDEBAL AND 8TATB PROM THB PUBUOATIOII OF BO«B*l 

NOnS UP TO AND IKCLUDDTO JULY 1, 1901, WITB PARALLKL RKPKRRNOaS TO 

AMBRICAN 8TATB REPORTS AND TBB RBPORTBB BTSTBM 



BY 

CUAS. L.^UOMPSON 

OP THE HAN PRANCI8CO BAR 



SUPPLEMENT TWO 



BANCROFT-WHITNEY CO. 

Law Publishers and Booksellers 

SAN FRANCISCO, CALIFORNIA 

190 5 






•"♦ - 



Copyright, 1905, 

BY 

BANCROFT- WHITNEY COMPANY 



THE CITATIONS IN THIS BOOK 

include all from the following Reports and all preceding them 
in each State or series: 



U. S 192 

Law Ed 47 

Fed. Rep 128 

Ala 137 

Ariz 3 

Ark 70 

Cal 142 

Colo 30 

Ck)lo. App 16 

Conn 75 

Dak 6 

Del 3 Pennewell. 

Fla 42 

Ga. 118 

Idaho 7 

111 207 

Ind 160 

Ind. App 31 

Iowa 120 

Kan 66 

Kan. App 10 

Ky 112 

La 110 

Md 97 

Me 98 

Mass 183 

Mich 130 

Minn 89 

Miss 81 

Mo. 177 



Mo. App 101 

Mont 28 

Neb 64 

Xev 26 

N. H 71 

X. J. Eq 64 

X. J. Law 68 

N. M 10 

X. Y 177 

X. C 133 

X. D 11 

Ohio 69 

Ore 42 

Pa. St 207 

R. I , 24 

S. C 66 

S. D 15 

Tenn 109 

Tex 96 

Tex. Cr 43 

Tex. Civ 31 

Utah 26 

Vt 75 

Va 101 

Wash 32 

W. Va 53 

Wis 118 

Wyo 10 

Am. St. Rep 96 



with dnplicate references to the Reporter System. 



O 



89876 



XCIV UNITED STATES. 



94 U. S. 1-3, 24 L. 31. WHEELER v. SEDGWICK. 

Syl. 1 (IX, 7). Objection of nonjoinder of parties. 

Approved in Robinson, etc., Co. v. Bilt, 187 U. S. 50, 23 Sup. Ct 
19, 47 L. G9, holding objection to validity of assignment for benefit 
of creditors, for want of acceptance and form of judgment, cannot 
be raised for first time in United States Supreme Court. 

94 U. S. 4-6, 24 L. 34. HOADLEY v. SAN FRANCISCO. 

Syl. 2 (IX, 7). Jurisdiction over city ordinances. 

Approved in M*Cune v. Esslg, 122 Fed. 589, holding action involT- 
ing right of daughter of deceased homestead settler to land which 
was patented to widow may be removed to Federal court. 

94 U. S. 6^11, 24 L. 40, PIKE v. EVANS. 

Syl. 1 (IX, 8). Adverse possession under sheriff's deed. 
See 88 Am. St. Rep. 724, note. 

94 U. S. 11-13, 24 L. 48, ATLANTIC, ETC., R. R. CO. v. HOPKINS. 

Syl. 2 (IX, 8). State decisions followed on practice. 

Approved in Mutual Reserve, etc., Assn. v. Phelps, 190 U. S. 
159, 23 Sup. Ct. 710, 47 L. 995, holding Federal court is without juris- 
diction to enjoin proceedings in State court which are supplementary 
to action passed into judgment 

94 U. S. 14-22, 24 L. 49, EX PARTE CUTTING. 

Syl. 3 (IX, 9). When mandamus granted. 

Approved in Land Title, etc., Co. v. Asphalt Co., 127 Fed. 22, 
reaffirming rule; Massachusetts, etc., Co. v. Kansas City, etc., Ry. 
Co., 110 Fed. 30, holding where discretionary order granting per- 
mission to intervene was conditional and not complied with it is 
not appealable. 

Syl. 5 (IX, 9). Order refusing intervention not appealable. 

Approved in Credits Commutation Co. v. United States, 177 U. S. 
317, 44 L. 786, 20 Sup. Ct 638, holding order denying right to 
intervene because petitioners do not show right to intervene, 

[1] 



04 U. S. 22-69 Notes on U. S. Reports. 2 

is Dot final for purpose of appeal; In re Michigan Cent R. 
R. Co., 124 Fed. 730, holding where one was permitted to Inter- 
vene in foreclosure suit in whose favor certain orders were made 
and ngnlnst whom a decree for costs was entered, he is entitled to 
appeal from the decree; Kidder v. Northwestern Mut L. I. Co., 117 
Fed. 990, holding petitioners attempting to intervene in action for 
recovery of proceeds of check after original defendants had lost 
right 'to remove to Federal court could not remove cause, as they 
were not defendants and had connected themselves with suit when 
defendants could not remove; In re Columbia Real Estate Co., 112 
Fed. 645, holding order dismissing petition to intervene in bank- 
ruptcy proceedings was not final and therefore appealable where 
petitioner alleged equitable lien on property of bankrupt; Coltrane 
V. Templeton, 106 Fed. 878, holding in ancillary suit brought to 
collect rents of an insolvent, the receiver in the original suit may be 
appointed and an order appointing a resident coreceiver is not 
appealable; Buel v. Farmers' Loan, etc., Co., 104 Fed. 843, hold- 
ing appeal does not Ue from order refusing leave to intervene. 

94 U. S. 22-28, 24 L. 51. HUMES v. SCRUGGS. 

Syl. 3 (IX, 10). Separate property of wife. 

Approved in Preston Nat. Bank v. Leonard, 122 Mich. 885, 81 N. 
W. 2G5, holding under facts of this case that there was no agree- 
ment to repay certain dividends transferred from wife to husband; 
First Nat. Bank v. McClellan, 9 N. Mex. 642, 58 Pac. 349, holding 
where husband makes gift to wife as against creditors, wife must 
show that remaining estate was sufllcient to satisfy their demands. 

94 U. S. 29^50, 24 L. 54, UTLEY y. DONALDSON. 
Syl. 1 (IX, 11). Construction of coirespondence as contract 
Approved in Sea Ins. Co. y. Johnston, 105 Fed. 291, holding when 
insured returned bill for earned premiums stating that they could 
not continue unless rate was reduced and insurer replied that rate 
could not be reduced and to return policy if insured wished to dis- 
continue, a return of policy and check by insured was rescission by 
consent; Russell v. Clough, 71 N. H. 178, 93 Am. St. Rep. 507, 51 
Atl. 032, holding plaintiff may recover reasonable value of work 
where he supposed he had contract but had none. 

&4 U. S. 50-52. Not cited. 

&4 U. S. 53-69. 24 L. 65, UNITED STATES v. BOSTWICK. 

Syl. 1 (IX, 12). Contract to let property. 

Approved in Williams v. Board of Comrs. of Kearny Co., 61 Kan. 
713, 60 Pac. 1048, holding county is liable in damages for destruc- 



Z Notes on U. S. BepcHrts. 04 U. S. 70-02 

tion of coarthouse rented from individuals and burned through 
negligence of its officers. 

Syl. 6 (IX, 13). Rebuilding property, destroyed by fire. 

Distinguished in Sampson y. Grogan, 21 R. I. 182, 42 Atl. 715, 
holding under will devising house and lot to one for life who shall 
keep same in repair, the acceptance of devise does not impose duty 
of rebuilding in case of destruction by accidental fire. 

SyL 7 (IX, 18). Effect of partial payment 

Approved in Glavey v. United States, 182 U. S. 608, 45 L. 1253, 
21 Sup. Ct 895, holding appointment of local Inspector of hulls of 
vessels by secretary of treasury as special ihspector of foreign 
vessels at salary of $2,000 a year entitles him to such compensa- 
tion although appointment Is made with understanding that he 
shall receive no additional compensation; Chicago, Milwaukee, etc., 
Ry. Co. V. Clark, 178 U. S. 366, 44 L. 1106, 20 Sup. Ct 929, holding 
payment of specified sum conceded to be due, including and 
excluding certain Items, on condition that sum shall be In full 
satisfaction will be sustained as extinguishment of whole sum. 

94 U. S. 70-7a Not cited. 

94 U. S. 76-86, 24 L. 42, STORM Y. UNITED STATES. 

Syl. 5 (IX, 15). Want of consideration when no defense. 

Approved In Manigault v. S. M. Ward, etc., Co., 123 Fed. 718, hold- 
ing contract under seal by persons who constructed dam across 
stream without authority to protect crops from flood, that they 
would remove same if permitted to remain until end of season, is 
not without consideration; Laclede Const Works v. Tudor Iron 
Works, 169 Mo. 151, 69 S. W. 388, holding contract requiring one 
party to sell and deliver quantity of track fastenings on the order 
of purchaser during certain period as called for is not void for 
want of mutuality; Winter v. Kansas City Cable Ry. Co., 160 Mo. 
176, 61 S. W. 610, holding the discontinuance of vexatious law suits 
brought to harass attorneys of Infant who had obtained final judg- 
ment against railroad company furnishes no consideration for 
release of judgment. 

Syl. 6 (IX, 15). Scope of cross-examination. 

Approved In Spiro v. Nltkin, 72 Conn. 206. 44 Atl. 14, holding 
not error on cross-examination for purpose of Identification, to ask 
witness if he was same person who once had a lawsuit with his 
brother, the plaintiff. 

94 U. S. 86'^2. Not cited. 



04 U. S. 92-110 Notes on U. S. Reports. 4 

94 U. S. 92-97, 24 L. 68, CONSOLIDATED FRUIT-JAE CO. v. 
WRIGHT. 

Syl. 1 (IX, 16). Abandonment by sale by patentee. 

Approved in Swain v. Holyoke Mach. Co., 109 Fed. 158, holding 
Swain patent No. 535,467, for turbine water wheels, as to claims 
1 and 3 is void because of prior public use of invention. 

Syl. 2 (IX, 16). Estoppel of inventor from claiming benefits. 

Approved in Swain v. Holyoke Mach. Co., 102 Fed. 914, holding 
construction for and sale to customer of turbine wheel, and use 
in factory of purchaser for two years prior to application for patent, 
will defeat patent 

94 U. S. 97, 98, 24 L. 32, SMITH v. UNITED STATES. 

Syl. 1 (IX, 17). Refusal to hear criminal case in error. 

Approved in State v. Dempsey, 26 Mont 506, 68 Pac. 111^, 
holding appeal taken by one convicted of murder will be dis- 
missed when he escapes from custody unless he return within 
stated time; Town of Batesburg v. Mitchell, 68 S. O. 671, 37 S. E. 
38, holding when defendant convicted before jusice pays fine, al- 
though under protest, he cannot appeal; State y. Handy, 27 Wash. 
471, 67 Pac. 1094, holding court will dismiss appeal when defendant 
breaks jail and is fugitive from justice unless within specified time 
he surrenders himself. 

94 U. S. 9ft-104. Not cited. 

94 U. S. 104-110, 24 L. 46, COMMISSIONERS, DOUGLAS CO. Y. 
BOLLES. 

Syl. 1 (IX, 18). When corporatio4's existence not questioned. 

Approved in Board of Comrs. v. Travelers* Ins. CJo., 128 Fed. 825, 
upholding issuance of county railroad aid bonds under N. O. Pub. 
Acts 1893, p. 69, chap. 70; Deitch v. Staub, 115 Fed. 315, holding 
member of building and loan society who borrows money from it and 
•executes a mortgage is estopped to set up Irregularity of organiza- 
tion; Brady v. Delaware Mut. Life Ins. Co., 2 Pennew. (Del.) 239, 
46 Atl. 346, holding corporation once shown to have been legal 
corporation cannot deny its corporate existence in order to escape 
liability on contract of insurance entered into when exercising cor- 
porate franchise and which paid premiums from time to time. 

Distinguished in Gastonia Cotton Mfg. Co. v. Wells Co., 128 Fed. 
374, holding where State provided that on approval of charter by 
governor it shall go into efl^ect at time and on date specified, charter 
providing that corporation shall commence business as soon as 
^2,000 of stock shall have been subscribed and paid in, corporation 
never acquired legal existence where stock subscribed for but not 
paid for. 



5 Notes on U. S. Reports. 94 U. S. 104-110 

Syl. 2 (IX, 19). Recital In county bonds. 

Approved In Board of Comrs. v. Travelers* Ins. Co., 128 Fed. 
824, holding where there was statutory authority for county to issue 
negotiable bonds it Is estopped as against bona fide holders by 
recitals therein that they were issued in conformity to statute au- 
thorizing same; Independent School Dist. v. Rew, 111 Fed. 8, hold- 
ing municipal corporation is estopped from defeating bonds which 
recite that they were Issued for purpose of funding municipal in- 
debtedness, by showing debt was fictitious or invalid; Hughes Co. 
V. Livingston, IM Fed. 313, 315, holding where municipal body 
has authority to issue bonds upon existence of certain facts which 
certain officers are to determine and certify, their certificate will 
estop municipality from denying against bona fide purchasers the 
falsity of certificate; Miller v. Perris Irr. Dist, 99 Fed. 145, 147, hold- 
ing recital in negotiable bonds issued by board of directors of irriga- 
tion district in California under act of March 7, 1887, ** after a full 
compliance with requirements of said act," estops district as against 
bona fide purchaser from asserting bonds were not disposed of as 
required by said act 

Syl. 3 (IX, 19). Bona fide purchaser of bonds. 

Approved in Central, etc., Co. v. Farmers' Loan, etc., Co., 116 
Fed. 706, holding purchaser of outstanding negotiable bonds from 
one who was bona fide purchaser for value before maturity without 
notice takes all rights of seller; Hughes Co. v. Livingston, 104 
Fed. 321, holding authorized recital in municipal bonds that they 
are issued in pursuance of legislative act which empowers mu- 
nicipality to issue them when fundable debt exists, that electors 
have voted for them, and they have been properly advertised, estops 
the municipality as against bona fide purchaser; Board of Comrs. 
V. Sutllflf, 97 Fed. 273, holding recital in negotiable municipal bonds 
by proper officers that constitutional condition has been fulfilled 
will estop corporation as against bona fide purchaser of bonds. 

Syl. 4 (IX, 20). Municipal aid to railroads. 

Approved in Stanley County v. Coler, 190 U. S. 450, 23 Sup. Ct 
810, 47 L. 1134, holding interest in unfinished railroad begun before 
adoption of N. C. Const. 18(58, cannot be deemed essential to exer- 
cise of power to issue bonds in aid of railroad construction conferred 
by N. C. Code §§ 1996-1999; Tulare Irrigation District v. Sliepard, 185 
U. S. 8, 46 L. 778, 22 Sup. Ct. 534, holding defective organization of 
irrigation district under California irrigation act, March 7, 1887, 
cannot be raised against bona fide holder for value by o\7uer of 
land in district who acquiesced in bond issue and received benefit 
of proceeds; dissenting opinion in Wilson v. Board of Education of 
Huron City, 12 S. Dak. 557, 81 N. W. 958, majority holding under 



94 U. S. 111-154 Notes on U. S. Reports. 6 

S. Dak. Laws 1887, chap. 47, relating to organization of public 
schools, that board of education organized thereunder was separate 
from corporation from city in which it was located, and city's in> 
debtedness could not be included in determining amount of indebted- 
ness board was authorized to incur. 

94 U. S. Ill, 24 L. 31, HURST v. HOLLINGS WORTH. 

Syl. 1 (IX, 20). Writ of error and appeal. . 

Approved in M'Fadden v. Mountain View Min., etc., Co., 97 Fed. 
672, holding in action brought under Rev. Stat, § 2326, for ad- 
judication of contested mining claims, defeated party may take 
case up for review by appeal and writ of error. 

94 U. S. 112, 113, 24 L. 33, DAYTON v. LASH. 

Syl. 2 (IX, 20). Service of citation on appeal. 

Approved in Bdgell v. Felder, 99 Fed. 328, holding where fund 
out of which payment of persons employed by court is in registry 
of court receiver appointed in the case cannot appeal from order 
paying the money. 

94 U. S. 113-154, 24 L. 77, MUNN v. ILLINOIS. 

Syl. 3 (IX, 24). Police power of government 

Approved in Minneapolis & St. L. R. R. Go. v. Minneapolis R. R. 
& W. Com., 186 U. S. 201, 22 Sup. Gt. 902, holding State legislature 
may authorize railroad commissioners to reduce joint through rate 
agreed upon by two or more railroads and apportion same among the 
railroads interested; Louisville & N. R. R. Go. v. Kentucky, 183 
U. S. 516, 46 L. 305, 22 Sup. Gt. 101, holding the power of railroad 
commissioners under Ky. Gonst., § 218, and Ky. Gen. Stat 1894, 
I 820, by which they may make exceptions from general prohibition 
of greater rates for shorter than longer hauls. Is not denying equal 
protection of the laws; Greenberg v. Western Turf Assn., 140 Gal. 
361, 73 Pac. 1051, holding Gal. Stat 1893, p. 220, chap. 185, making 
it unlawful to refuse admission to any place of amusement to any 
person over twenty-one years of age presenting ticket. Is valid 
regulation; Dobbins v. Gity of Los Angeles, 139 Gal. 183, 72 Pac. 
971, holding ordinance making it unlawful to maintain gasworks 
within certain limits is within police power of city; Fair Haven, 
etc., R. R. V. Fair Haven, 75 Gonn. 451, 53 Atl. 964, holding under 
police power of State, railroad may be compelled to pay for cost 
of paving nine feet in width on all streets along which it operates 
its cars; The Ten-Hour Law for St. Ry. Gorporations, 24 R. I. 606, 
54 Atl. 603, holding R. I. Pub. Laws, chap. 1004, limiting hours of 
labor of railroad employees to ten hours a day, is within police regu- 
lation of legislature. See notes, 90 Am. St Rep. 252; 81 Am. St 
Rep. 407. 



7 Munn v. Illinois, 94 U. S. 11^-154 

Syl. 4 (IX, 25). Regulations affecting use of property. 

Approved in Cottlng v. Godard, 183 U. S. 84, 85, 86, 46 L. 99, 22 
Sap. Ct. 33, holding stockyard company is denied equal protection 
of laws by Kansas act March 3, 1897, which limits amount of 
charges to be made by that corporation without limiting charges 
to be made by other similar corporations; Muslsogee Nat Tel. Co. 
T. Hall, 118 Fed. 386, holding neither State nor Indian nation has 
power to grant exclusive right to maintain telephone lines within 
territory; City of Mobile v. Bienville, etc., Co., 130 Ala. 384, 30 So. 
447, holding acceptance by water company of franchise carries duty 
of supplying all persons along line With water on equal terms and 
uniform rate; Central Ry. Co. v. Murphy, 116 Ga. 865, 43 S. B. 266, 
holding sections 2317, 2318, Civ. Code Georgia, relating to tracing 
lost or damaged goods by common carrier, are not unreasonable; 
Brown V. Jacobs Pharmacy Co., 115 Ga. 444, 90 Am. St Rep. 141, 
41 S. E. 559, holding combination of mercantile dealers to compel 
another dealer in similar goods to sell at fixed prices or upon 
refusal to prevent members of combination from selling to him is 
void; Chicago Union Traction Co. v. Chicago, 199 111. 523, 65 N. E. 
461, holding city of Chicago having power under charter to limit 
rate of fare to be charged by street railway, company had power 
to compel said companies to furnish transfers entitling passengers 
to ride on connecting lines; Parlss v. State, 159 Ind. 219, 220, 64 
N. E. 866, holding Bums' Rev. Stat 1901, §{ 7318-7323e, Indiana, 
malting it unlawful to practice medicine without license, is con- 
stitutional; Indiana, etc.. Gas Co. v. State, 158 Ind. 519, 63 N. B. 
221, holding natural gas company having laid its main in town 
streets must serve inhabitants without discrimination; Cedar Rapids 
Water Co. v. Cedar Rapids, 118 Iowa, 258, 91 N. W. 1090, holding 
city has no right to fix maximum water rates so low that it will 
result in depriving company of property without due process of law; 
Louisville, etc., R. R. v. Pittsburg, etc.. Coal Co., Ill Ky. 963, 64 
S. W. 970, holding contract whereby railroad company grants to 
coal company exclusive right to use switch tracls in consideration 
of right of way over coal company's land is void; Louisville Tobacco 
Warehouse Co. v. Commonwealth. lOG Ky. 173, 49 S. W. 1071, hold- 
ing under Ky. Stat, § 4077, providing every corporation exercising 
special or exclusive franchise shall pay tax on franchise, does not 
apply to tobacco warehouse company; State v. Kinloch Tel. Co., 93 
Mo. App. 358, 67 S. W. 686, holding telephone company is bound to 
furnish citizen with private service on request on offer to pay usual 
charges in advance; State v. Heldenbrand, 62 Nebr. 140, 89 Am. St 
Rep. 745, 87 N. W. 25, 26, holding section 9, chapter 12, Comp. 
Stat Nebr., making it a felony to sell or transfer personal property 
covered by mortgage, without written consent of mortgagee, is 
not in violation of section 3, article 1 of Constitution; Combs v. 
Lakewood, 68 N. J. L. 583, 53 Atl. 697, holding ordinance of town- 



04 U. S. 113-154 Notes on U. S. Reports. 8 

ship of Lakewood, licensing and regulating vehicles used tn busi- 
ness of carrying passengers, is valid; People v. Knight, 171 N. Y. 
358, 64 N. E. 153, holding where railroad company engaged in 
interstate commerce maintains cab service at terminus within State, 
which carries passengers under separate contract, cab business is 
not exempt from taxation under Laws 18J)G (N. Y.), chap. 008; 
Agua Pura Co. v. Mayor, etc., 10 N. Mex. 28, 60 Pac. 216, holding 
under Acts N. Mex., 1876, chap. 1 (Comp. Laws 1897, § 664, par. 5). 
empowering county commissioners to represent county and talse 
care of property, they had authority to make contract with cor- 
poration to supply an unincoil)orated town with water; Gardner 
V. Providence Tel. Co., 23 R. I. 268, 49 Atl. lOOo, holding telephone 
company having exclusive privilege of operating lines in city, which 
is prepared to attach extension instruments for subscribers, may 
refuse use of lines to one who uses private extension; Charleston 
Nat Gas Co. v. Lowe, 52 W. Va, 671, 44 S. E. 413, holding corpora- 
tion organized under laws of State for purpose of supplying natural 
gas must supply all who apply and comply with regulations; dis- 
senting opinion in State v. Smiley, 65 Kan. 282, 69 Pac. 213, hold- 
ing agreement entered into by all dealers of certain market, limit- 
ing amount of grain they might buy, is anagreement in restraint 
of trade within anti-trust act of Kansas, 1897; dissenting opinion 
in Railway Co. v. Simonson, 64 Kan. 818, 68 Pac. 658, majority hold- 
ing provision of chapter 100, Laws 1893, Kansas, which makes 
specifications of weights in bills of lading issued by railroad com- 
panies for hay, grain, etc., conclusive evidence of correctness of 
weights, is unconstitutional. 

Syl. 5 (IX, 25). Public interest in private property. 

Approved in West Coast Naval (Stores Co. v. Louisville & N. 
R. R. Co., 121 Fed. 650, holding railroad company building wharf 
in extension of street out into deep water of Pensacola where 
vessels cofne in carrying on commerce, on which wharf company 
has laid tracks making it a quasi-terminal for transfer of goods, 
cannot permit and exclude certain vessels; Dodge v. Mission Tp., 
107 Fed. 833, holding township bonds issued for purpose of con- 
struction and operation of mills and factories for manufacture 
of sugar and syrup, under act Kansas, March 1, 1889, are void; 
Florida v. Jacksonville Term. Co., 41 Fla. 412, 27 So. 236. holding 
railroad commissioners, under Fla. Laws 1899, chap. 4700, § c, 
have power to require terminal company to admit railroad com- 
pany to privileges and benefits of its common passenger station; 
Inter-Ocean Co. v. Associated Press, 184 111. 448, 75 Am. St. Rep. 
189, 56 N. E. 824, holding corporation organized to buy, gather, 
and accumulate news and information, can make no distinction 
with reference to newspaper publishers desiring to purchase news 
for publication; Kennebec Water Dist. v. Watervllle, 97 Me. 201, 
54 Atl. 12, holding Maine Water Company is quasi-public cor- 



8 Munn v. lUinois. 94 U. S. 113-154 

poration ana Is entitled to charge reasonable rates for its services; 
State V. Associated Press, 159 Mo. 424, 60 S; W. 94, 99, 102, 103, 
107, holding corporation engaged in business of general news 
gathering cannot be interfered with by Stave, and it cannot be 
compelled to furnish news to relator on equal terms with others; 
Wabaska Electric Co. v. City of Wymore, 60 Nebr. 202, 82 N. W. 
627, holding city of second class in Nebraska having less than 
5.000 inhabitants has no authority to regulate rates of electric-light 
company; Knoxville v. Knoxvllle W. Co., 107 Tenn. 671, 64 S. 
W. 1081, holding under act of 1877, Tennessee, right to fix water 
rates was continuing right, and the fact that it had once exer- 
cised it did not 'preclude it from passing act of March 30. 1901; 
Town of Clarendon v. Rutland R. R., 75 Vt. 16, 52 Ati. 1060, up- 
holding Vt Stat 3846, providing that town in which railroad 
crossing, bridge, or culvert is located may repair or rebuild same 
at company's cost where selectmen decide that such repair or 
rebuilding is necessary for public safety, and railroad after notice 
has failed so to do; Fallsburg, etc., Co. v. Alexander, 101 Va. 109, 
43 S. B. 198, holding legislature cannot authorize corporation to 
condemn private property in order to locate plant for manufacture 
and generation of water power, light, or heat to be utilized, trans- 
mitted, and distributed to any place for company's use or for 
nse of individuals; dissenting opinion in State v, Johnson, 61 
Kan. 848, 60 Pac. 1083, majority holding chapter 28, Laws Special 
Session, 1898, Kansas, relating to court of visitation, is unconstitu- 
tional, because legislative, judicial, and administrative powers are 
commingled. 

Syl. 8 (IX, 50). Status of grain warehouses. 

Approved in Florida v. Jacksonville Term. Co., 41 Fla. 406, 27 
So. 234, holding, under Fla. Laws 1899, chap. 4700, railroad operated 
from point in State to point in another State, in so far as road 
and business in this State are concerned, is subject to supervision 
of railroad commissioners^ 

Syl. 11 (IX, 54). Limitation upon Congress. 

Approved in dissenting opinion in State v. Bixman, 162 Mo. 
60, 62 S. W. 844, majority holding act May 4, 1899, Missouri, pro- 
hibiting sale of beer or malt liquors till they are inspected, and act 
Congress August 8, 1890, declaring all intoxicating liquors trans- 
ported into State subject to laws enacted in exercise of police pow- 
ers, are not in violation of interstate commerce rights. 

(IX, 21.) Miscellaneous. 

Cited in Kreibohm v. Yancey, 154 Mo. 84, 55 S. W. 266, hold- 
ing act April 21, 1891, § 2 (Rev. Stat. 1889, § 3710), Missouri, de- 
claring that usurious interest exacted on Indebtedness secured by 
lien on personal property shall render lien void, is not unconsti- 
tutional. 



94 U. S. 155-187 Notes on U. S. Reports. 10 

94 U. S. 155-164, 24 L. 94, CHICAGO, ETC., R. B. CO. v. IOWA. 

Syl. 1 (IX, 55). Control of railroad rates. 

Approved in Boise City Artesian Hot, etc., Cold Water Co. t. 
Boise City, 123 Fed. 237, holding statute, imposing obligations 
on companies furnishing water to Inhabitants of town, applies 
to all companies furnishing water, whether from public or private 
source; Muskogee Nat. Tel. Co. v. Hall, 118 Fed. 386, holding 
act Congress March 3, 1901 (31 Stat. 1083), relating to granting 
of telephone franchises in Indian Territory, annulled previous 
grants by one of the Indian nations; Chicago Union Traction Co. 
V. Chicago, 199 111. 523, 65 N. B. 461, holding, .under 1 iStarr & 
C. Anno. Stat. (2d ed.), pp. 689-715, art. 5, { 1, Illinois, adopted as 
charter of Chicago, authorizing city to regulate compensation of hack- 
men, etc., the city had power to enact Rev. Code Chicago, §{ 1723- 
1725, regulating charges of street railways; Town of Clarendon 
v. Rutland R. R., 75 Vt 16, 52 Atl. 1060, upholding Vt Stat 3846, 
providing that town in which railroad crossing, bridge, or culvert 
is located may repair or rebuild same at company's cost, where 
selectmen decide that such repair or rebuilding is necessary for 
public safety, and railroad after notice has failed so to do. 

Syl. 4 (IX, 57). Forbearance does not lose rate regulation. 

Approved in Union Pac. Ry. v. Mason City, etc., Ry., 128 Fed. 
239, holding neither mortgagee nor purchaser at foreclosure, sale 
acquire title free from use of track by other railroad, imposed 
under reservation in charter of legislative power to alter or amend. 

94 U. S. 164^178, 24 L. 97, PBIK v. NORTHWESTERN R. R. 

•Syl. 1 (IX, 59). Constitutional amendatory power — Rate regu- 
lation. 

Approved In Town of Clarendon v. Rutland R. R., 75 Vt 16, 52 
Atl. 1060, upholding Vt Stat. 3846, providing that town in which 
railroad crossing, bridge, or culvert is located may repair or rebuild 
same at company's cost, where selectmen decide that such repair 
or rebuilding is necessary for public safety, and railroad after 
notice has failed so to do. 

Syl. 5 (IX, 61). Effect of State court decision. 

Approved in Southern Ry. v. North Carolina Corp. Comm., 99 
Fed. 166, holding decision of highest State court construing statute 
or determining whether statute has been repealed is binding on 
Federal court; San Diego liand, etc., Co. v. Jasper, 110 Fed. 713, 
holding suit brought by company furnishing water appropriated 
under laws of California to consumers for irrigation, to test validity 
of rates fixed by board of supervisors, is properly brought against 
board. See 89 Am. St. Rep. 651, note. 

94 U. fi. 179-187. Not cite^ 



U Notes on U. S. Reports. 94 U. S. 187-206 

•.• 

94 U. S. 187-202, 24 L. 34, DUNBAR v. MYERS. 

Syl. 5 (IX, 66). DisQ^aimer of part of invention. 

Approved In Bracewell v. Passaic Print Works, 107 Fed. 469, 
holding wliere patent covers process relating to printing of 
cotton dotli, disclaimer limiting application to patterns produced by 
certain djestuffs is proper. 

SyL 12 ax, 67). Patent of addition of part 

Approved in Farmers' Mfg. CJo. v. Spnicks' Mfg. Co., 119 Fed. 
596, holding East patent No. 420,021, for ventilating barrel, is void 
for lack of patentable novelty. 

Distinguished in Plumb v. New York, etc., R. R., 97 Fed. 648, 
holding McKenna patent No. 348,289, for airbrake attachment, is 
void for lack of patentable novelty. 

94 U. S. 202-206. 24 L. 110, COMMISSIONERS JOHNSON COUNTY 
T. JANUARY. 

SyL 1 (IX, 67). Recital in bonds. 

Approved in D'Esterre v. New York, 104 Fed. 610, holding omis- 
sion to state date and name of payee and place of registration in 
bonds will not render them invalid. 

SyL 2 (IX, 67). Bond recital of condition precedent 
Approved in Board of Comrs. y. Coler, 113 Fed. 706, 728, holding 
when county issued bonds as authorized by Code N. C. 1883, 1 1996, 
in aid of completion of railroad in which citizens of county 
are interested, it is estopped by recital that they were issued 
by authority of said statute to defeat rights of purchasers in good 
faith; Independent School Dist v. Rew, 111 Fed. 8, holding recital 
in bonds that they were issued for funding indebtedness of munici- 
pal corporation estops municipality as against innocent purchaser 
from showing falsity; Miller v. Perris Irr. Dist, 99 Fed. 145-148, 
liolding recital in negotiable bonds of irrigation district of California 
under act March 7, 1887, that bonds were issued after full com- 
pliance with act, estops district as against bona fide purchaser from 
showing invalidity. 

SyL 3 (IX, 68). Issuance of bonds ~ Estoppel. 

Approved in Fernald v. Town of Oilman, 123 Fed. 800, holding 
incorporated town of Iowa having authority to become indebted 
had authority to issue negotiable bonds therefor; Beatrice v. Edmin- 
son, 117 Fed. 432, holding where power to issue municipal bonds 
is vested in city by appropriate legislation, a recital in bonds of 
statute which does not grant such authority is immaterial or ques- 
tion of validity; Hughes Co. v. Livingston, 104 Fed. 313, holding 
quasi-municipality by recital in bonds cannot estop itself from 
denying that it had no authority to issue bonds; Miller v. Perris 



94 U. S. 207-248 Notes on U. S. Reports. 12 

Irr. Dist., 99 Fed. 147, holding recital in Irrigation district bonds 
Issued under California act, March 7, 1887, that they were issued 
after full compliance with act, estops district from impeaching 
their validity. 

94 U. S. 207-214, 24 L. 112, ATLANTIC DELAINB CO. V. JAMBS. 

Syl. 1 (IX, 68). When contract may be canceled. 

Approved in Treat v. Russell, 128 Fed. 854, refusing to caiicel deed 
for fraud when complainants admitted signatures to deed which 
was formally acknowledged and recorded and remained unchal- 
lenged for four years; Moses v. United States, 116 Fed. 529, hold- 
ing under contract to work on structure at Alaska with free trans- 
portation from Seattle and return, plaintiff was not entitled to 
wages from completion of work until return to Seattle; Hill v. 
Northern Pac. Ry., 104 Fed. 756, holding written release intention- 
ally executed in settlement of claim cannot be impeached in 
action at law for fraud; County of Ada v. Sullen Bridge Co., 5 
Idaho, 96, 47 Pac. 825, holding county warrants illegally issued can- 
not be canceled by court of equity; Findlay v. Baltimore Trust Co., 
97 Md. 720, 55 Atl. 380, holding rescission by buyer of executed 
sale of certain bonds for fraud cannot be defeated by seller on 
ground that buyer has parted with bonds and so cannot restore 
statu quo, where he parted with them on advice of seller; Kreps v. 
Kreps, 91 Md. 697, 47 Atl. 1030, holding deed would not be set 
aside on showing that it was executed by husband and wife to son 
and which recited that purchase money had been paid by husband; 
Conner v. Groh, 90 Md. 685, 45 Atl. 1027, holding in action for 
balance due for goods sold, bill for cancellation of contract was not 
subject to objection that vendees had remedy at law. 

94 U. S. 214-219, 24 L. 115, UNITED STATES v. SMITH. 

Syl. 2 (IX, 69). Liability of United States on contracts. 

Approved in United States v. Barlow, 184 U. S. 137, 46 L. 469, 
22 Sup. Ct. 474, holding expense caused to contractors engaged in 
constructing government drydock by suspension of regular work 
due to unsuccessful experiment with " water-jet system " Is properly 
allowed as extra work. 

94 U. S. 219-225. Not cited. 

94 U. S. 225-238, 24 L. 72, CAMMEYBR v. NEWTON. 

Sy!. 7 (IX, 71). Defense to suit /or infringement 

Approved in DIckerson v. Sheldon, 98 Fed. 622, holding purchaser 
of article which Infringes patent, at sale In proceedings for violat- 
ing customs laws, dees not vest purchaser with right to vend article 
when he knew of the infringement 

94 U. S. 238-248. Not cited. 



13 Notes on U. S. Reports. 94 U. S. 248-260 

94 U. S. 248-252, 24 L. 123, EX PARTE JORDAN. 

Syl. 4 (IX, 73). Appeals by interveners. 

Approved In In re Michigan Cent R. R. Co., 124 Fed. 730, hold- 
ing in foreclosure suit one who intervenes for purpose of ascertain- 
ing rights to proceeds after sale, and in wnose favor certain orders 
were made, may appeal from an order against him for costs; 
Edwards v. Bay State Gas Co., 120 Fed. 586, holding one of a 
number of interveners in a suit who has been in case without con- 
dition for seventeen months, without talking any part In proceed- 
ings, is not entitled after testimony is closed to be given full charge 
of suit as complainant on allegations of collusion between original 
parties; American Pub., etc., Co. v. Wallter, 87 Mo. App. 510, hold- 
ing authorization to furnish exclusive reading matter weel^ly until 
notiOed to discontinue when accepted constituted a contract; State 
V. Sneed, 105 Tenn. 723, holding mandamus will lie to compel circuit 
judge to allow appeal; dissenting opinioii in Crooks v. Fourth Dist 
Ct of Utah, 21 Utah, 108, 59 Pac. 532, majority holding under pro- 
visions of article 8, section 9, Const. Utah, the decision of District 
Court on appeal from Judgment of justice of the peace is final. 

9* U. S. 253-255. Not cited. 

94 U. S. 255-258, 24 L. 125, TOWNSHIP EAST OAKLAND v. 
SKINNER. 

Syl. 3 (IX, 73V Bonds issued without authority. 

Approved in Kirsch v. Braun, 153 Ind. 257, 53 N. E. 1086, holding 
under Acts 1877, p. 8, § 7, Indiana, authorizing county to issue 
gravel-road bonds to be paid out of assessments on land benefited, 
the county is not liable thereon, the holder having right to receive 
from treasurer money collected from assessments; dissenting opinion 
in Pryor v. Kansas City, 153 Mo. 151, 54 S. W. 504, majority hold- 
ing when plaintiff constructed sewer under Kansas City ordinance, 
he was bound by city charter. 

94 U. S. 258-260, 24 L. 153, UNITED STATES v. YOUNG. 

Syl. 3 (IX, 74). Court of Claims. 

Approved In Ex parte Fuller. 182 U. S. 571, 45 L. 1235, 21 Sup. 
Ct. 874, holding new trial may be granted for newly discovered evi- 
dence in action at law, by United States Court in Indian Territory, 
after final decision of case in United States Supreme Court, under 
Mansf. Dig., chap. 119, § 5155. 

Syl. 4 (IX, 95). Certiorari in Supreme Court 

Approved in United States v. Circuit Court, 126 Fed. 170, holding 
Circuit Court of Appeals has power to issue writs of certiorari only 
in aid of its appellate jurisdiction; United States v. Mar Ying Yuen, 
123 Fed. 160, holding United States has no right of appeal from 



94 U. S. 260-288 Notes on U. S. Reports. 14 

order of commissioner discharging Chinese person arrested for being 
unlawfully within the country; section 13, act September 13, 1888, 
25 Stat 479, ctiap. 1015, giving defendant right to appeal does not 
apply to government 

94 U. S. 260-277, 24 L. 154, TOWN OF SOUTH OTTAWA v. PER- 
KINS. 

Syl. 2 (IX, 75). Denial of validity of bonds. 

Approved In O'Brien v. Wheelock. 184 U. S. 480, 46 L. 654, 22 
Sup. Ct. 369, holding landowners are not estopped to deny constitu- 
tionality of statute authorizing assessment for local improvements 
as against purchaser of bonds in open marlcet which such assess- 
ment would have to pay, because some of them had secured passage 
of act and organized assessment district 

SyL 4 (IX, 76). Gonsiruction by State courts followed. 

Approved In Wilkes County Comrs. v. Coler, 180 U. S. 519. 45 
L. 650, 21 Sup. Ct 463, holding decisions of highest court of State 
that provisions of State Constitution respecting passage of statute 
are mandatory are binding on Federal court; Chicago, etc., R. R. 
Co. V. Smyth, 103 Fed. 379, holding decision of Nebraska Supreme 
Court that due authentication and enrollment of a statute affords 
only prima facie evidence of its passage is binding on Federal 
courts; Hanrick y. Gurley, 93 Tex. 479, 55 S. W. 120, holding Rev. 
Stat Texas, arts. 698, 699, providing for setting poles of telegraph 
lines on public roads and condemning land, apply to telephone com- 
panies under Rev. Stat, art 642, subd. 8. 

94 U. S. 278-288, 24 L. 59, COMMISSIONERS MARION CO. v. 
CLARK. 

Syl. 8 (IX, 78). Submission of case to jury. 

Approved in Gilbert v. Burlington, etc., Ry., 1^ Fed. 532, holding 
brakeman guilty of contributory negligence in coupling moving 
cars; St Louis Cordage Co. v. Miller, 126 Fed. 508, holding where 
uncontradicted evidence discloses that defect in machinery was 
obvious and servant entered into service without complaint, court 
should instruct jury to return verdict for defendant; New York 
Cent., etc, Ry. Co. v. DifendaflCer, 125 Fed. 895, holding in Federal 
court rule is that it is not proper to submit cause to jury merely 
because there Is some evidence, unless it would warrant verdict in 
favop of party producing It; Cole v. German Savings & Loan Soc, 
124 Fed. 122, holding where strange boy opens door of elevator 
shaft located in dark hall and woman falls into shaft and is in- 
jured, she cannot recover against owner of building; Fltzpatrick v.* 
Graham, 122 Fed. 404, holding In action of ejectment against heirs 
of deceased, based on delivery by deceased to plaintiff of deed 
to the property, court Is not justified in dismissing complaint be- 
cause only evidence is that of plaintiff; Ragsdale v. Southern R. R. 



15 Notes on U. S. Reports. 94 U. S. 278-288 

Co., 121 Fed. 927, holding verdict was properly directed for de- 
fendant in action against railroad for burning bridge by fire from 
locomotiye; Jndd v. New York, etc., Co., 117 Fed. 211, holding in 
action to recover goods destroyed by fire in defendant's shed, ques- 
tion as to whether defendant exercised due care was for jury to 
determine; Brady v. Chicago, etc., Ry., 114 Fed. 105, holding under 
fellow servant statute, Minnesota (Stat 1894, § 2701), employee of 
railroad operating train through yard of depot corporation and 
switchman of depot corporation are not fellow servants; Patton v. 
Southern Ry. Co., Ill Fed. 714, holding court was justified in 
directing verdict for defendant in action against railroad company 
for personal injuries; Cudahy Paclsing Co. v. Marcan, 106 Fed. ©48, 
holding minor employed as servant assumes ordinary dangers and 
rislis of employment which he l^nows or appreciates, and those 
which are open and apparent, and which one in exercise of or- 
dinary care would Isnow; Clark v. Zamiko, 106 Fed. 600, holding in 
action for damages for negligence, where evidence conclusively 
discloses that plaintiff was guilty of contributory negligence, the 
court should instruct jury to return verdict for defendant; Porider 
V. Jerome Hill Cotton Co., 100 Fed. 374, holding contracts for future 
delivery of marketable commodity are not per se void, but are 
presumptively valid, and to show a wagering contract a mutual 
intention that goods should not be delivered must be proved; 
Chicago, etc., Ry. v. Price, 97 Fed. 427, holding when facts are such 
that reasonable men can fairly draw but one conclusion, court may 
withdraw case from jury; Haven v. Missouri Ry. Co., 156 Mo. 230, 
55 S. W. 1039, holding order granting new trial should be affirmed 
where preponderance of evidence showed plaintiff stepped from 
moving car, although other witnesses testified that car stopped 
and suddenly started; Stephens v. Deatherage Lumber Co., 98 Mo. 
App. 370, 73 S. W. 292, holding, although there was some evidence 
in action for personal injuries, that person under whom plaintiff 
was working was defendant's foreman, the trial court's order 
granting defendant new trial will not be reversed; Ketterman v. 
Dry Fork R. R. Co., 48 W. Va. 612. 617, 37 S. E. 686. GS8, holding 
in action for personal injuries, where undisputed evidence is conclu- 
sive of negligence, court may withdraw case from jury. 

Syl. 5 (IX, 80). Bona fide purchaser of bonds. 

Approved in Central, etc., Co. v. Farmers' Loan, etc., Co., 116 
Fed. 705, holding purchaser of outstanding negotiable bonds from 
bona fide purchaser for value before maturity takes all rights of 
aeller, although second purchaser may have had notice of infirmity; 
Board of Comrs. v. Vandriss, 115 Fed. 809, holding when municipal 
bonds are sold in open market for full value to innocent purcliasers 
municipality is estopped to deny truth of recitals that all conditions. 
etc., have been complied with; Hughes Co. v. Livingston, 104 Fed. 



94 U. S. 288-299 Notes on U. S. Reports. IG 

321, holding a transferee of bona fide purchaser of negotiable mu- 
nicipal bonds acquires all rights of transferror, even although trans- 
feree takes them with notice of alleged defenses; Board of Comrs. 
V. SutlifT, 97 Fed. 273, holding transferee from bona fide purchaser 
of negotiable municipal bonds tal^es all rights of transferror, al- 
though he talces as a gift or advancement after notice and with 
notice of alleged defenses. 

Syl. 6 (IX, 80). Burden of proof on note. 

Approved in United 'States v. Lee Huen, 118 Fed. 464, holding 
under provisions of section 3, Chinese exclusion act. May 5, 1892 
(27 Stat. 25), relating to exclusion of Chinese persons, commissioner 
is Judge of credibility of witnesses; Edwards v. Bates Co., 117 Fed. 
528, holding burden rests on plaintiff in action on municipal bonds, 
where part of the issue were sold without authority, to show those 
issued were not invalid. 

Syl. 9 (IX, 81). Recitals in county bonds. 

Approved in Independent School DIst. v. Rew, 111 Fed. 8, hold- 
ing corporation may be estopped from defeating action upon cou- 
pons by recitals in bonds; Hughes Co. v. Livingston, 104 Fed. 313, 
huiding quasi-munlcipality may not, by recital in bonds, estop itself 
from denying that it had no power to issue them when there can 
be no condition under which they could be issued; Higgins v. 
Wilmington, 3 Pennew. (Del.) 360, 51 Atl. 2, holding leave to amend 
declaration in law ai'tion will not be granted after motion for non- 
suit has been argued and court has or is about to pronounce judg- 
ment; dissenting opinion in Wilson v. Board of Education of Huron 
City, 12 S. Dak. 557, 81 N. W. 958, majority holding board of edu- 
cation authorized to issue bonds cannot set up as a defense against 
bona fide purchaser that it failed to comply with S. Dak. Const., 
art. 13, § 5, when bonds recite that all conditions have been com- 
plied with. 

94 U. S. 288-299, 24 L. 103, FULLER v. YEUTZBR, 

Syl. 1 (IX, 81). Result not patentable. 

Approved in National Hollow, etc., Co. v. Interchangeable, etc., 
Co., 106 Fed. 708, holding second claim of letters-patent No. 361,009. 
to Phillip Hien. secured to patentee the exclusive use of the com- 
bination therein specified, whether resilience or camber in the beam 
is utilized or not; National, etc., Brake B. Co. v. Interchangeable 
Brake B. Co., 99 Fed. 767, holding Westinghouse patent No. 345,093, 
for car brake, is not of patentable novelty. 

(IX, 81.) Miscellaneous. 

Cited in Stilwell-Bierce, etc., Co. v. Eufaula, etc., Co., 117 Fed. 
414, holding when language of claim for a combination includes 
an element only described in general terms, court may look to spe- 
cifications to ascertain its meaning. 



17 Notes on U. S. Reports. 94 U. S. 299-324 

94 U. S. 290-310. Not cited. 

94 U. S. 310-314, 24 L. 761, TOWNSHIP OF BURLINGTON V. 
BEASLEY. 

6yl. 3 (IX, 83). Bonds for internal improvement 

Approved in Kearney v. Woodruff, 115 Fed. 94, holding wliere 
bonds were issued by municipality for purpose of aiding in con- 
struction of canal under Nebr. Oomp. Stat, § 5491, a bona fide 
purchaser of bonds in open market was only bound to ascertain 
if issue was in excess of the 10 per cent limit; Great Western 
Nat Gas & Oil Co. v. Hawkins, 30 Ind. App. 571, 66 N. B. 769. 
holding under Bums' Rev. Stat. 1901, { 5103, relating to eminent 
domain, natural gas company, under proceedings to condemn for 
pipe line, must show it is engaged in furnishing gas to public. 

Distinguished in Dodge v. Mission Tp., 107 Fed. 830, 831, hold- 
ing promotion of construction of mills for manufacture of sorghum 
cane into sugar or syrup is private and not public purpose. 

94 U. S. 315-321, 24 L. 192, UNITED STATES v. FOX. 

Syl. 2 (IX, 84). Laws of State affecting property. 

Approved in Plummer v. Color, 178 U. S. 132, 44 L. 1007, 20 Sup. 
Ct 835, holding legacy of United States bonds is not exempt from 
State inheritance tax law by provision of act of Congress, 1870; 
Griffin v. Chattanooga S., etc., Co., 127 Ala. 573, 30 So. 524, hold- 
ing when married man procured homestead certificate for govern- 
ment land and he and family entered on said land and improved it 
and claim it as a homestead, it is pending time from entry to time 
of procuring patent homestead of entryman, and conveyance be- 
fore patent without wife's signature is void; Blythe v. Hinckley, 
127 Cal. 436, 59 Pac. 788, holding Cal. Civ. Code. § 671, declaring 
that any person may take, hold, and dispose of real or personal 
property within the State, is not in conflict with provisions of any 
treaty between United States and Great Britain; Ferry v. Campbell, 
110 Iowa, 295, 81 N. W. 606, holding under Acts 26th Gen. Assem., 
chap. 28, § 1, Iowa, providing all property within State passing 
by will shall be subject to tax of 5 per cent, of its value above 
$1,000, which shall be lien on property, and providing that property 
shall be sold if tax is not paid, is unconstitutional. See 87 Am. 
St. Rep. 359, 361, note. 

(IX, 84). Miscellaneous. * 

Cited in West Coast Mfg. Co. v. West Coast Imp. Co., 25 Wash. 
639, 66 Pac. 102, holding where warranty deed purported to convey 
certain tract of land by metes and bounds together with certain 
shore rights, tide lands were included and defendant was liable on 
its warranty. 

94 U. S. 322-^24. Not cited. 
Vol II — 2 



94 U. S. 324-342 Notes on U. S. Reports. 18 

94 U. S. 324-342, 24 L. 224, BARNEY v. KEOKUK. 

Syl. 3 (IX, 86). Common law affecting tide lands. 

Approved in State v. Longfellow, 160 Mo. 123, 69 S. W. 377, hold- 
lug riparian owner on fresh water navigable stream owns to low- 
water marlc, subject to rights of public as regards navigation of 
stream; dissenting opinion in Scranton v. Wheeler, 179 U. S. 187, 45 
L. 146, 21 Sup. Ct. 66, majority holding erection of pier by United 
States on la^d submerged under navigable water, the title to 
which is owned by riparian proprietor, does not entitle him to 
compensation under United States Constitution, Fifth Amendment. 

Syl. 5 (IX, 87). Riparian rights over land accretions. 

Approved in Stoclsley y. Cissna, 119 Fed. 833, holding sudden 
cutting of new channel by Mississippi river in 1876 called " Cen- 
tennial cut-off,*' by which several thousand acres of land formerly 
on the eastern bank is left on Western banls, did not change 
boundary between Tennessee and Arlsansas; Mobile Transp. Co. v. 
Mobile. 128 Ala. 350, 30 So. 647, holding United States patent to 
land along a stream where tide ebbs and flows conveys to high- 
tide line along the shore; De Lassus v. Faherty, 164 Mo. 372, 64 
S. W. 186, holding where accretions form to mainland, and creek 
tlten cuts through them, the part thus separated from mainland 
still belongs to it 

Syl. 6 (IX, 87). Riparian title to reclaimed land. 

Approved in In re Valley, 116 Fed. 984, holding under law of 
Iowa, deed to lands adjacent to nonnavigable water-course described 
as numbered lots In accordance with government survey which 
shows lots as bounded by meander line along stream, conveys land 
between meander line and high- water mark; Baldwin v. Erie Shoot- 
ing Club. 127 Mich. 662, 87 N. W. 60, holding bay or arm of the 
Great Lakes containing 4,000 acres, which was patented to State 
aH swamp land and which is covered with two or three feet of 
water in winter and with grass in summer, is not navigable and sub- 
ject to private ownership. 

Syl. 7 (IX, 87). Land under navigable water. 

Approved in Kean v. Calumet Canal Co., 190 U. S. 481, 47 L. 1146, 
23 Sup. Ct. 660, 661, 663, holding letters-patent from United States to 
Indiana purporting to be in pursuance of swamp land act of Septem- 
ber 28, 1850, chap. 84 (9 Stat, at Large, 520), conveys to extent of 
full subdivision land under nonnavigable water; Mobile Transporta- 
tion Co. V. Mobile. 187 U. S. 4^, 23 Sup. Ct. 173, 47 L. 271, holding 
when Alabama became State it was entitled to soil below high- 
water mark under navigable water within State not previously 
granted; Moore v. Farmer, 156 Mo. 48. 79 Am. St. Rep. 514, 56 S. W. 
498, holding where sand bar in river gradually increased in size 
and became of permanent nature, and strong current at first ran 
between it and nearest shore, and channel of river changed so that 



19 Notes on U. S. Reports. 94 U. S. 343-^47 

it was separated from shore by only slongh. It was an island and 
not accretion; McBaine v. Johnson, 155 Mo. 201, 55 S. W. 1084, 
holding island in Missouri river on north side of channel formed 
by gradual recession of riyer toward the south becomes property 
of riparian owner on north shore. 

SyL 11 (IX, 89). Right of way of railroad. 

Approved in Callen v. Electric L. Ck)., 66 Ohio St. 175, 64 N. E. 
143, holding placing by private lighting company of poles on curve 
in street and stringing electric-light lines is taking property within 
meaning of section 9 of the bill of rights; Illinois tSteel Go. v. Bilot, 
109 Wis. 427, 84 N. W. 857, holding land covered by waters of lalses 
or ponds, though In form conveyed by Federal or State patent, is 
Tested in State the ^ame after as before such conveyance, such 
conveyance being void; dissenting opinion in Peck v. Schenectady 
Ry. Ck)., 170 N. Y. 311, 63 N. K 361, holding use of city street for 
electric railroad is additional burden on property rights of owners 
of fee, subject to easement of highway. 

SyL 12 (IX, 90). Erection of building on street 

Approved in Brand v. Multnomah Co., 38 Or. 92, 60 Pac. 392, 84 
Am. St Rep. 775, holding fact that State has delegated paramount 
control of certain streets to municipality does not prevent State 
from fixing grade; Schwede v. Henrich Bros. Brewing Co., 29 Wash. 
26; 69 Pac. 364, holding permit granted to private corporation by 
board of public worlu to construct railroad tracks on street con- 
ferred no rights on corporation, as granting of franchise is legis- 
lative function; State v. Superior Ct, 26 Wash. 287, 66 Pac. 388, 
holding under Wash. Const, art. 1, { 16, providing private property 
shall not be taken without Just compensation, erection of high 
trestle for railway in front of plaintiffs house is taking of prop- 
erty for which compensation must be made. 

Distinguished in In re City of New York, 168 N. Y. 148, 61 N. E. 
162, holding the city of New York, as successor to rights of the 
crown under Donga n charter, 1686, giving It authority to make use 
of tide land, does not authorize construction on tideway of Harlem 
river of speedway. 

(IX, 86). Miscellaneous. 

Cited in dissenting opinion in Scranton v. Wheeler, 179 U. S. 182. 
45 L. 144, 21 Sup. Ct. 64, holding suit by riparian owner to pre- 
vent interference with his rights in submerged water front by 
officer of United States in possession of government pier Is not suit 
against United States. 

94 U. S. 343-347, 24 L. 229. FIRST NAT. BANK v. WHITMAN. 

Syl. 1 (IX, 91). Payee cannot maintain suit against bank. 

Approved in Satterwhlte v. Melczer, 3 Ariz. 107, 24 Pac. 185, 
holding bank not liable to holder of check drawn by general de- 



04 U. S. 348-371 Notes on U. S. Reports. 20 

positor for its refusal to pay check, though it has sufficient funds 
of drawer to pay amount called for; Pullen v. Placer County 
Bank. 138 Cal. 173, M Am. St Rep. 23. 71 Pac. 84, holding bank 
paying check to payee, after notice of death of drawer, is liable 
to estate of drawer. See 80 Am. St Rep. 871, note. 

Syl. 5 (IX, 93). Unauthorized payment by bank. 

Approved in Kenneth Inv. Co. v. Bank, 96 Mo. App. 144, 70 S. W. 
179. holding where bank paid checks upon forged signature of de- 
positor's bookkeeper, it was liable to depositor. 

94 U. S. 348-350, 24 L. 194, EX PARTE FLIPPIN. 

Syl. 2 (IX, 93). Mandamus compelling court to render Judgment 

Approved in United States v. Marshall, 122 Fed. 430, holding 
where pending appeal from adverse Judgment In ejectment de- 
fendant brought suit to condemn right of way and obtained an 
order for possession pendente lite on affirmance of judgment in 
ejectment enforcement of order of restitution would be suspended 
and suspension could only be reviewed by appeal. 

94 U. S. 361-571, 24 L. 195. CROMWELL v. SAC COUNTY. 

Syl. 1 (IX, 93). Effect of judgment on merits. 

Approved In United States Trust Co. v. New Mexico, 183 U. S. 
540, 46 L. 319, 22 Sup. Ct 174, holding reversal by Supreme Court 
of United States of an order dismissing petition claiming lien for 
taxes on ground that it presented no claim against property or 
parties is an adjudication that upon face of petition a vd,lid claim 
was presented and is conclusive of such prima facie validity; 
MitcheU v. First Nat Bank, 180 U. S. 481, 45 L. 632, 21 Sup. Ct 421, 
holding denial of claim against insolvent's estate by State court 
precludes claimant from thereafter proceeding against insolvent in 
Federal court in suit begun before proceedings were instituted in 
State court; Werleln v. New Orleans. 177 U. S. 396. 44 L. 820. 20 
Sup. Ct 685, holding city's claim that land which it holds by dedi- 
•catioai for public use cannot be legally sold under judgment against 
•city is conclusively defeated by decision against city in suit for In- 
junction against sale on ground of its illegality; London, etc., Bank 
▼. Horton, 126 Fed. 601, 602, holding mortgagee did not lose right 
to enforce mortgage because of delay tn foreclosure, which did not 
exceed six years, and which was attributable as much to defendant 
as plaintiff; Wilson y. Smith. 117 Fed. 711, holding judgment of 
Orphan's Court, dismissing petition for an account the object of 
which is to procure fund for payment of legacy. Is conclusive In 
action for the legacy; JEtna Life Ins. Co. v. Board of Comrs., 117 
Fed. 84, holding in action on coupons cut from certain bonds a judg- 
ment rendered for defendant in action on other coupons cut from 
same bonds was res judicata ; Soderberg v. Armstrong. 116 Fed. 
711. holding In action to enjoin defendants from extracting ore 



21 Cromwell v. Sac County. 94 U. S. 351-37 J 

from mine, Judgment in former suit for defendants in which action 
defendants denied ownership in plaintiff, and that they had not 
extracted ore, is insufficient as plea in bar; Eastern BIdg., etc., Assn. 
T. Welling, 116 Fed. 105, holding Judgment in action for penalty 
for refusing to satisfy mortgage of record when it has been paid 
is bar to action to foreclose mortgage; Crockett v. Miller, 112 Fed. 
732, holding under Consol. Stat Nebr., § 4701, providing Judgment 
for plaintiff in replevin shall include damage for detention of 
property, such Judgment is not a bar to action for damages to 
plaintiff's business; Mcintosh v. Pittsburg, 112 Fed. 707, holding 
Judgment sustaining validity of municipal ordinance for widening 
street rendered on appeal from ordinance, as provided by statute, 
is conclusive against parties and all other property-owners similarly 
affected; Kilham v. Wilson, 112 Fed. 572, holding Judgment in 
action to recover commission for sale of land is bar to an action 
for accounting for additional commission; Union & Planters' Bank 
V. City of Memphis, 111 Fed. 569, holding bank in bill filed in 
Federal court against city to restrain assessment and collection of 
taxes on capital stock on ground that it was exempt, alleging that 
State Supreme Court in action between same parties for same cause 
held property exempt, would not be sustained when under the laws 
of the State the Judgment affected only the case decided; Moss v. 
Whitzel, 108 Fed. 582, holding fact of assessment by comptroller 
ui>on stockholders of national bank does not conclude such stock- 
holders as to validity of debt to pay which assessment was made 
and they are entitled to be heard in court before being required 
to pay money to receiver; Manhattan Trust Co. v. Trust Co. of North 
America, 107 Fed. 332, holding when petition was filed in interven- 
tion in railroad foreclosure setting up claim for rental against 
defendant and claiming landlord's Hen, was dismissed after issue 
Joined, petitioner was concluded from maintaining another action 
against receiver for earnings of road as preferential creditor; 
Mayor, etc. v. United States, 104 Fed. 116, holding where petition 
for writ of mandamus to compel corporation to pay Judgment 
alleged that petitioner was owner of judgment, in absence of any 
denial in trial court, question of petitioner's title cannot be raised 
in appellate court on writ of error; Norton v. House of Mercy, 101 
Fed. 386, holding after the Kentucky Court of Appeals had decided 
that a New York charitable corporation which had Intervened had 
no right to hold certain lands under a will, the judgment is con- 
clusive and estops the corporation from maintaining another action 
in another State; McGrantt v. Baggett, 128 Ala. 485, 29 So. 199, 
holding in action to cancel deed, plaintiff was precluded by former 
decision against him in action in ejectment involving same land; 
Freeman v. Barnum, 131 Cal. 389, 63 Pac. 692, holding in suit by 
assistant district attorney against county for salary for certain 
month where question was whether termination of his ofllce prior 



94 U. S. 351--371 Notes on U. S. Reports. 22 

to such month was valid, the judgment was bar to suit for salary 
for other months; Beroneo v. Ventura Co., etc., 129 Cal. 236, 79 Am. 
St. Rep. 120, 61 Pac. 959, holding allegation in foreclosure proceed- 
ings that defendants claim an interest in the property does not 
present issue of their claim to superior title to both mortgagor and 
mortgagee; Smith y. Rountree, 185 111. 224, 56 N. E. 1131, holding 
plea of res judicata in assumpsit is not supported where matters 
claimed to be res judicata were Mily incidentally considered m 
former suit; McBntire v. Williamson, 63 Kan. 281, 65 Pac. 246, 
holding a judgment against municipal officers In proceedings brought 
for purpose of compelling them to levy tax to pay judgment against 
city Is conclusive against taxpayer; Hanrick v. Gurley, 93 Tex. 
479, 480, 55 S. W. 120, 56 S. W. 330, holding where plaintiff had 
sued to try title to parcel of land claiming to be owner of entire 
tract by certain title and judgment was rendered against him, he 
was estopped from asserting in another action same title; Dolan 
▼. Scott, 25 Wa»h. 217, 65 Pac. 191, holding conclusiveness of judg- 
ment in action tor rent in which validity of lease was involved, as a 
bar to second action, is not affected by fact that first judgment was 
not appealable; Marble Sav. Bank v. Williams, 23 Wash. 773, 63 Pac. 
613, holding in action to collect interest on bond;s, plaintiff could 
show by parol that former judgment for defendant in action to 
compel levying of tax for payment of interest was based on grounil 
that money in treasury was not applicable to payment of interest; 
Ward V. Ward's Heirs, 50 W. Va. 520, 40 S. B. 473, holding if pend- 
ing appeal, appellant conveys all his Interest to adversary, the 
fact may be pleaded tn bar to appeal; Brien v. Ray, 49 W. Va. 134, 
38 S. E. 532, holding judgment for defendant in action to set aside 
as fraudulent deed to certain land is not a bar to action to en- 
force judgment upon other land not involved; Wlndon v. Stewart, 
48 W. Va. 490, 37 S. K 604, holding former decision is bar only when 
it clearly shows that precise question was determined and must not 
be left to inference; dissenting opinion in Foster t. Posson, etc., 
105 Wis. 103, 81 N. W. 124, majority holding where complaint in 
action to enforce stockholders' liability shows that in former action 
by other parties on similar liability' judgment has been rendered, 
it states no cause of action. 

Syl. 2 (IX, 96). Prior judgment on second action. 

Approved in Southern Pac. R. R. Co. v. United States, 183 U. S. 533, 
46 L. 314, 22 Sup. Ct. 160, holding determination in suit to quiet 
title by United States against Southern Pacific Railroad Company, 
that defendant took no title to lands within conflicting place lim- 
its, is not a bar to claim In another action between the same ' 
parties that defendant had equal moiety in odd-numbered sec- 
tions in conflicting place limits, such lands not being same; Gus- 
tafson V. Chicago, etc., Ry., 128 Fed. 95, holding railroad and en- 
gineer not tort feasors where complaint in action for persona^ 



23 Cromwell v. Sac County. 94 U. S. 351-371 

Injuries alleged that engineer carelessly and negligently ran by 
signals warning him of presence of switch engine; Sacks v. Kup- 
ferle, 127 Fed. 571, holding where suit for Infringement against 
dealer in alleged infringing article was defended by manufacturer 
at own cost, and it was adjudged that complainant was not original 
inventor, and that patent was void, judgment is bar to subsequent 
suit directly against manufacturer; Glencove Granite Co. v. City 
Trust, etc., Co., 118 Fed. 389, holding, under Code Civ. Proc. 
N. Y., S 1209, relating to dismissal of actions, judgment of dismis- 
sal in action by foreign corporation for failure to prove it .had 
certificate from secretary of State authorizing it to do business is 
not on merits; Pittsburg, etc., Ry. v. Keokuk, etc., Co., 107 Fed, 
787, holding in action against railroad company for certain tolls 
under contract, judgment was not conclusive for tolls covering 
different period; James t. Germania Iron Co., 107 Fed. 617, holding 
equitable title to land acquired by lawful entry cannot be affected 
by subsequent decisions of land department; Hill v. Phelps, 101 Fed. 
653, holding in action to obtain payment of judgment praying 
that another defendant be joined and that certain conveyance 
be set aside, where the second defendant pays judgment and 
court does not order conveyance set aside, a bill of review could 
not be maintained to modify judgment so as to set aside convey- 
ance which was claimed to be ftaudulent against another judg- 
ment held by plaintiff; Board of Comrs. v. Sutliff, 97 Fed. 274, 
holding action on coupons from municipal bonds is not upon 
same cause of action as former action on different coupons from 
same bonds; New Dunderberg Min. Co. v. Old, 97 Fed. 153, hold- 
ing judgment in ejectment that plaintiff was entitled to vein of 
ore which determined that apex was within plaintiff's claim is 
conclusive of such fact in subsequent action to recover value 
of ore alleged to have been taken from such vein; Crowder v. 
Red Mountain Min. Co., 127 Ala. 260, 29 So. 849, holding judg- 
ment in action for interest on note is not bar to action to recover 
principal; Roth v. Merchants & Planters' Bank, 70 Ark. 204, 66 
S. W. 919, 91 Am. St. Rep. 83, holding judgment on note void, 
under fiand. & H. Dig., § 493, Arkansas, relating to form of note 
given for patent. Is not a bar to suit against maker for balance 
due on agreed price for patent; Phelan v. Quinn, 130 Cal. 37S, 
62 Pac. 624, holding in action by owner of interest in way to have 
gate erected across the same declared nuisance and have it abated, 
a judgment for defendant was bar to another suit for same relief 
brought on ground that way was public road; Maddux v. San Luis 
Obispo County Bank, 129 Cal. 609, 79 Am. St. Rep. 147, 62 Pac. 206, 
holding where suit is brought for recovery of money, and money is 
paid before and after default Judgment is rendered but no credit 
is given therefor, the Judgment is no bar to action by defendant to 
recover the money so paid; Baldwin v. Hanecy, 204 111. 288, 68 N. B. 



94 U. S. 351-371 . Notes on U. S. Reports. 24 

502, holding Judgment that nothing was owing to wife in action 
by receiver against debtor's attorney and widow and children of 
debtor, in action to subject p'roperty to claim of creditors, wife was 
estopped from setting up her claim in action against attorney; 
. Board of Directors, etc., Sem. v. People, 189 111. 443, 59 N. E. 979, 
holding where in several actions against seminary for taxes by 
county treasurer, Judgment was given for seminary, such Judgment 
was not a bar to application for taxes for subsequent year where ob- 
jection was that land was exempt since it did not appear that this 
question had been decided in any former suit; Hardwicke & Co. v. 
Young, 110 Ky. 506, 62 S. W. 11, holding Judgment dismissing suit 
to restrain collection of taxes for certain school district is bar to 
another action for same taxes on ground that they were imposed 
in violation of Constitution; Brown v. Missouri Pac. Ry. Co., 9G 
Mo. App. 169, 70 S. W. 527, holding Judgment in Joint action by 
husband and wife for personal injuries to wife is res Judicata 
on every issue presented in action for damages by husband; Ter- 
ritory V. Santa F6 Pac. R. R., 10 N. Mex. 412, 62 Pac. 986, hold- 
ing in action to recover taxes for improvements of portion of right 
of way, former judgment in action involving entire right of way is 
a bar; Lowenthal & Meyers v. Baca, 10 N. Mex. 361, 62 Pac. 983, 
holding Judgment for defendants in replevin suit is bar to action 
for trespass involving same property; Hanson v. Hanson, 64 Nebr. 
507, 90 N. W. 208, holding former judgment Is a bar when parties 
are the same although property claimed is different; Ingram v. In- 
gram, 75 Vt. 394, 56 Atl. 5, holding on trial of petition for support, 
findings of facts made in former divorce proceedings brought by 
husband, to effect that wife was not guilty of willful desertion, are 
inadmissible; Fordyce v. State, 115 Wis. 616, 92 N. W. 432, hold- 
ing Judgment declaring candidate for county superintendent had 
the right to have her name on ballot, and holding that Rev. Stat 
1898, §§ 38, 702a, relating to qualifications of candidates, uncon- 
stitutional. In suit by candidate against county clerk, is no bar to 
quo warranto by State against candidate to oust her as not being 
qualified under section 702a. 

Syl. 3 (IX, 101). Scope of former judgment 

Approved in Wilcox, etc., Gibbs Sewing Mach. Co. v. Sherborne, 
123 Fed. 878, holding In action for royalties from licensee under 
patent judgment for plaintiff where defendant pleads, termination 
of contract on account of invalidity of patent is conclusive on 
second action for subsequent royalties; -^tna Life Ins. Co. v. Board 
of Comrs., 117 Fed. 86, holding judgment for defendant on coupons 
cut from certain bonds was bar to subsequent action on other 
coupons cut from same bonds; Union & Planters* Bank v. City of 
Memphis, 111 Fed. 570, holding in action by bank to restrain col- 
lection of taxes on capital stock on ground of exemption, judgment 
in its favor for collection of taxes in previous year Is not res 



25 Cromwell t. Sac County. 94 U. S. 351-371 

Judicata; Mercantile Nat Bank y. Lauder, 109 Fed. 25, holding 
decree enjoining collection of taxes levied for one year is not 
bar to action for taxes for subsequent year; Ross v. Portland, 105 
Fed. 683, holding judgment against complainant in suit to enjoin 
sale of property on assessment is bar to second suit for same pur- 
pose; Linton v. National, etc., Ins. Co., 104 Fed. 587, holding judg- 
ment against grantor in action involving terms of power of attorney 
was conclusive in action between same parties on notes covered by 
power of attorney; Dodson v. Hurley, 129 Ala. 382, 30 So. 599, 
holding in action to foreclose mortgage, plea of res adjudicata is 
insufficient which avers that previous judgment on note secured by 
the mortgage was rendered on plea of general issue, payment, and 
Statute of Limitation; Montezuma Cattle Co. v. Dake, 16 Colo. 
App. 145, 63 Pac. 1060, holding judgment for defendant in action by 
some directors and stockholders of corporation against one director 
for fraudulently negotiating loan is bar to action by corporation on 
same cause of action; Worth v. Carmichael, 114 Ga. 701, 40 S. E. 
798, holding judgment rendered on one note is not conclusive in 
suit on another note between same parties when different defense is 
n issue; Madison v. Garfield Coal Co., 114 Iowa, 63, 86 N. W. 44, 
holding where plaintiff sued defendant to enjoin use of leased land 
as not within lease and submitted question whether such use was 
proper under lease, judgment for defendant will bar suit by plain- 
tiff against defendant involving defendant's rights under lease; 
City of Newport etc. v. Commonwealth, 106 Ky. 445, 50 S. W. 848, 
51 S. W. 433, holding judgment for defendant in action to recover 
taxes for one year is not bar to action to recover taxes on same 
land for another year; Schuster v. White's Admr.. 106 Ky. 320, 50 
S. W. 243, holding judgment for defendant in action for board is 
not bar to action for nursing; Adams v. Yazoo, etc., R. R. Co., 77 
Miss. 265, 24 So. 212, holding judgment prohibiting tax collector 
from collecting taxes from railroad for certain year is bar to action 
by revenue collector for same year after consolidation with another 
road; Kansas City, etc.. Park v. Kansas, 174 Mo. 442, 74 S. W. 984, 
holding judgment enjoining collection of taxes for certain year on 
ground of exemption was res adjudicata as to exemption for 
succeeding years; Garland v. Smith, 104 Mo. 22, 64 S. W. 193, hold- 
ing judgment in will contest on ground that it was obtained by 
undue influence is not res adjudicata of power of testator to devise 
lands; Barkhoefer v. Barkboefer, 93 Mo. App. 382, 67 S. W. 677, 
holding judgment in partition suit is not bar to action under trust 
involving land which was partitioned to party subject to trust; 
Wooster v. Cooper, 59 N. J. Eq. 222, 45 Atl. 381, holding demand 
is res adjudicata where in former decree same claim based on same 
muniment of title has been determined; La Follett v. Mitchell, 42 
Or. 472, 473, 69 Pac. 919, 95 Am. St. Rep. 786, holding judgment in 
defendant's favor in action by buyer of produce against seller for 



04 U. S. 371-391 Notes on U. S. Reports. 26 

failure to deliver where defendant pleaded refusal to receive is 
not a bar to action by defendant against plaintiff for refusal to 
receive; White v. Ladd, 41 Or. 332, 68 Pac. 741, 03 Am. St Rep. 739, 
holding judgment ordering sale of attached property Is not con- 
clusive as to validity of seizure of part of property because re- 
mainder was well attached; Pitts v. Oliver, 13 S. D^k. 566, 79 Am. 
St. Rep. 910, 83 N. W. 593, holding in action to foreclose chattel 
mortgage where there were several parties, a judgment decreeing 
payment of defendant's claim first and then plaintifTs claim Is 
not a bar to action by plaintiff against defendant for negligence in 
taking care of sheep which were the subject of the foreclosure ac- 
tion; New York, etc., Ins. CJo. v. English, 96 Tex. 274, 72 «. W. 59, 
holding where life policy provided for payment of insurance In 
ten annual instalments and company refused to pay first instalment 
when due, a judgment against company on the contract could not be 
rendered against it for whole amount; Houston v. Walsh, 27 Tex. 
Civ. 125, 66 S. W. 109, holding judgment setting aside certain judg- 
ments foreclosing tax lien is conclusive against taxpayer for dam- 
ages resulting to him from sale of such property to innocent pur- 
chaser. 

94 U. S. 371-582, 24 L. 271, JOHNSON v. HARMON. 

Syl. 1 ax, 103). BiU of exceptions. 

Approved in Southern B. & L. Assn. v. Clurey, 117 Fed. 830, hold- 
ing bill of exceptions not being known to Federal court in equity 
cases, trial court may direct clerk to certify rejected documents to 
appellate courts when necessary to determine their proper reject- 
ment; Continental Trust Co. v. Toledo, etc., R. R., 99 Fed. 178, 
holding a judge of a Federal court is not required to certify to a 
bill of exceptions in an equity cause. 

Syl. 3 (IX, 103). Appeal from decree in equity. 

Approved in In re De Gottardi, 114 Fed. 342, holding hearing 
before referee In bankruptcy under bankruptcy act 1898, is in 
nature of hearing in equity and on appeal equity practice will apply 
and judge will try issues de novo on record or he may recommit 
case for further hearing. 

Distinguished in French Lumbering Co. v. Theriault, 107 Wis. 643, 
644, 83 N. W. 933, holding a deed made by an insane person not 
under guardianship is voidable. 

94. U. S. 382^91, 24 L. 173, BBALL v. WHITE. 

Syl. 5 (IX, 104). Surrender of estate. 

Approved in Gray v. Kaufman Dairy, etc., Co., 162 N. Y. 395, 76 
Am. St. Rep. 328, 56 N. B. 904, holding where landlord refuses 
surrender of lease and then relets to new -tenant, his acceptance Is 
presumed. 



27 Notes on U. S. Reports. 94 U. S. 391-307 

(IX, 103). Miscellaneous. 

Cited in Biggs v. Stneler, 93 Md. 112, 48 AtL 729, holding under 
the facts of this case that the lease was one from month to month; 
Flanagan Bank v. Graham, 42 Or. 418, 71 Pac. 142, holding where 
contractor agreed to construct railroad In consideration of all its 
bonds and executed chattel mortgage to director on all rolling 
stock he might acquire, and the vendor knew nothing of the chattel 
mortgage, accepted bonds in payment, the mortgage was superior 
to the lien. 

W U. S. 391-597, 24 L. 248, McCRBADY T. VIRGINIA. 

SyL 1 (IX, 105). Cultiyating fish in tide lands. 

Approved in Morgan's Case, 98 Va. 814, 35 S. B. 449, holding tax 
imposed by act March 3, 1898 (Acts 1897-^ p. 864), on residents 
of State for privilege of fishing in waters belonging to State does 
Dot encroa'ch on authority of United States to regulate commerce. 

Syl. 2 (IX, 106). Right of fishery. 

Approved in Maxwell v. Dow, 176 U. S. 596, 44 L. 603, 20 Sup. 
Gt 454, holding privileges and immunities of citizen of United 
States do not include right to jury trial in State court for State 
offense; Heckman v. 6utt», 128 Fed. 396, holding Alaska Code, 23 
Stat 24, 26, § 8, creating land district, protects possessory rights 
in tide lands which were then exercised and claimed for fishing or 
other purposes by occupants of adjoining lands against others who 
assert common right to fish therein. 

Syl. 3 (IX, 106). Right of fishery between States. 

Approved in State v. Gallop, 126 N. C. 983, 35 S. B. 182, holding 
Laws N. C. 1897, chap. 291, § 7, making it a misdemeanor to in- 
terfere with shooting or fishing of a citizen on Currituk sound is 
valid. 

Syl. 4 (IX, 106). Planting oysters — Interstate citizenship. 

Approved in Kean v. Calumet Canal Co., 191 U. S. 481, note, 23 
Sup. Ct 660, 47 L. 1146, holding letters-patent from United States 
to Indiana in pursuance of swamp land act, September 28, 1850, 
chap. 84, which refers to official survey, conveys full subdivision of 
land under nonnavigable water; Jones v. Oemler, 110 Ga. 207, 35 
S. £. 377, holding State of Georgia has power to sell or lease beds 
of all tide waters within State to any citizen upon any terms pre- 
scribed by legislature; State v. Corson, 67 N. J. L. 183, 186, 50 Atl. 
783, holding act March 24, 1899 (Pub. Laws 1899, p. 506), New Jersey, 
relating to planting oysters in tide waters and providing for licensing 
of boats engaged in the business is not in violation of U. *S. Const., 
art 1, 5 8; Shepard's Point Land Co. v. Atlantic Hotel, 132 N. C. 
524, 44 S. E. 41, holding* under Code, § 2751, N. C. (Acts 1854-55, 
p. 45, chap. 21), providing for entry of tide lands by riparian 
owners, grantee of such lands took only an easement as riparian 



94 r:. S. 397-429 Notes on U. S. Reports. '28 

owner to eiect wharves; Farm Investment Co. v. Carpenter, 9 Wyo. 
139, 87 Am. iSt. Rep. 935, 61 Pac. 2C5, holding Const. Wyo., art 8, 
§ 1, declaring all waters within State are property of State, Is not 
void. 

94 U. S. 397-400. Not cited. 

94 U. S. 400-404, 24 L. 128, UNITED STATES v. MARTIN. 

Syl. 1 ax, 107). Eight-hour act. 

Distinguished in Moses v. United States, 116 Fed. 528, holding 
a laborer who works for the government more than eight hours a 
day under instruction from officer in charge Is entitled to pay for 
extra work upon a quantum meruit. 

Syl. 2 (IX, 107). Contract for labor — Length of day. 

Approved in United States v. Moses, 126 Fed. 62, 63, 66, holding 
under eight-hour labor law, August, 1892, chap. 352, § 1, 27 Stat 
340 (U. S. Comp. Stat 1901, p. 2521), which fixes day's work for 
laborer, a laborer who works more than eight hours cannot recover 
for the extra work; Vermont Loan, etc., Co. v. Hoffman, 5 Idaho, 
384, 385, 95 Am. St Rep. 189, 190, 49 Pac. 316, holding under stat- 
utes of Idaho requiring all persons loaning money to pay license, 
and Imposing penalty for failure, a person so loaning money could 
recover on note; Fiske v. People, 188 111. 210, 58 N. E. 987, holding 
contract which provides it shall be void if laborers were compelled 
to work more than prescribed number of hours per day is uncon- 
stitutional; In re Dalton, 6} Kan. 262, 59 Pac. 337, holding chap- 
ter 114, Laws 1891, Kansas (chap. 73, pp. 781, 782, Gen. Stat 1897) 
relating to employment of laborers by State, is valid. 

94 U. S. 405-414, 24 L. 232, GOULD v. DAY. 

Syl. 1 (IX, 108). Presumption of delivery. 

Approved in Bunnell v. Bunnell, 111 Ky. 578, 64 S. W. 424, hold- 
ing rebuttable presumption of delivery arises when it is shown that 
grantor executed, acknowledged, and recorded deed. 

94 U. S. 415-418, 24 L. 164, PEOPLE v. COMMISSIONERS OF 
TAXES. 

Syl. 2 (IX, 109). Taxation of national banks. 

Approved in Deposit Bank of Owensboro v. Daviess Co., etc., 102 
Ky. 192, 39 S. W. 1035, holding State may 'tax national bank stock 
at greater rate than State banks. 

94 U. S. 418-423. Not cited. 

94 U. S. 423-429, 24 L. 204, DAVIS v. BROWN. 

Syl. 2 (IX, 110). Agreement between indorser and Indorsee. 

Approved in Levy & Cohn Mule Co. v. Kauffman, 114 Fed. 176, 
holding evidence of parol agreement made before or at time of 
acceptance of draft is inadmissible to show acceptance was con- 



29 Notes on U. S. Reports. 94 U. S. ^2Z-^29 

dltlonal; Metropolitan Nat. Bank v. Jansen, 106 Fed. 575, holding 
maker and indorser of promissory note are competent witnesses to 
prove invalidity of note between parties as against indorsee after 
maturity. 

Syl. 3 (IX, 111). Defense in second action. 

Approved in Huntington v. Lumbard, 22 Wash. 213, 60 Pac. 418, 
holding payment of interest will not estop maker to deny considera* 
tlon owing to breach of warranty of sale. 

SyL 4 (IX, 111). Scope of former Judgment 

Approved in Werlein v. New Orleans, 177 U. S. 396, 397, 44 L. 
820, 20 Sup. Gt. 685, holding city's claim that land it holds by 
dedication cannot be sold under Judgment is conclusively defeated 
by decision against city for injunction against the sale on the 
ground of illegality; Eastern Building & Loan Assn. v. Welling, 116 
Fed. 105, holding Judgment for plaintiff in action to recover penalty 
for failure of mortgagee to discharge mortgage on record was 
a bar to subsequent suit to foreclose; City Trust, etc., Co v. Glen- 
cove G. Co., 113 Fed. 179, holding in action against surety on bond 
to pay Judgment, atfidavit of defense is sufficient Which recites 
prior Judgment in favor of surety because plaintiff had not pro- 
cured the certificate required of foreign corporations; Eastern, etc.. 
Loan Assn. v. Welling, 103 Fed. 356, holding Judgment of Stafe 
Supreme Court cannot be pleaded as res Judicata to subsequent suit 
in Federal court, where it has been removed to Supreme Court of 
the United States; Piatt v. Vermillion. 99 Fed. 360, holding Judg- 
ment in action between individuals determining that certain land 
was not public land subject to filing, but was included in previous 
grant, is not conclusive on State nor against one not party or privy 
to action; Crowder v. Red Mountain Min. Co., 127 Ala. 260, 29 So. 
849, holding Judgment in action brought to recover accrued interest 
upon promissory note is not bar to action for principal; Roth v. 
Merchants & Planters' Bank, 70 Ark. 204, 66 S. W. 919, 91 Am. 
St. Rep. 83, holding judgment on note given for patent invalid for 
not being on printed form as prescribed under Sand. H. Dig., 
{ 493, is not bar to action for agreed price of patent; Worth v. Car- 
michael, 114 Ga. 701, 40 S. E. 798, holding when two notes were 
given upon same consideration. Judgment against maker in suit on 
one note is not bar to defense not set up in first action; New Blue, 
etc.. Milling Co. v. De Witt, 65 Kan. 670, 70 Pac. 049, holding com- 
mercial indorsement by payee and contemporaneous written agree- 
ment limiting effect of indorsement are to be construed together; 
St Lawrence Co. v. Holt, 51 W. Va. 372, 41 S. E. 359, holding under 
the facts of this case former Judgment was bar to action of eject- 
ment for same land involved in first action; Beirn v. Ray, 49 W. 
Va. 134, 38 S. E. 532, holding Judgment of dismissal in action to 
set aside fraudulent transfer was no bar to subsequent action to 



94 U. S. 429-444 Notes on U. S. Reports. 80 

enforce judgment lien on another piece of property not involyed in 
first suit 

94 U. S. 429-433, 24 L. 129, McCLrURE v. TOWNSHIP OF OXFORD. 

Syl. 4 (IX, 113). Notice. 

Approved In Ball, Hutchings, etc., Co. v. Presidio County, 88 Tex. 
65, 29 S. W. 1043, holding purchaser of county bonds must take 
notice of the act of the legislature authorizing issue. 

Syl. 5 (IX, 113). Notice to purchaser of bonds. 

Approved in National Salt Co. v. Ingraham, 122 Fed. 45, holding 
purchaser of certificate of indebtedness which refers to agreement 
under which they were issued is chargeable with notice of agree- 
ment; Sage V. Fargo Township, 107 Fed. 380, holding when date of 
issue of bonds Is on face, purchaser is chargeable that they were 
issued within one year after organization of county, and hence 
void under Laws Kan. 1886, p. 123; Wilbur v. Wyatt, 63 Nebr. 263, 
88 N. W. 499, 600, holding where after election for bonds, notice of 
adoption must be published for two weeiss, issue of bonds before 
expiration of the two weeiss is void. 

94 U. S. 434-437, 24 L. 275, STEWART v. SALAMON. 

Syl. 2 (IX, 114). Presumption of payment in Confederate cur- 
rency. 

Approved in Gomtuissioners of Bartow Co. t. Conyers, 108 Ga. 
561, 84 S. B. 352, holding under scaling ordinance adopted by con- 
stitutional convention of Georgia, 1865, providing for payment in 
Confederate money, court erred in restricting evidence to value of 
Confederate money to time of executing contract 

(IX, 114). Miscellaneous. 

Cited in Murphy v. Utter, 186 U. S. 99, 46 L. 1074, 22 Sup. Ct. 
777, holding under laws Ai^isona, when demurrer accompanied by 
plea of res judicata is overruled, defendant cannot set up new 
defenses without consent of court 

94 U. S. 437-441, 24 L. 176, NATIONAL BANK OF COMMON- 
WEALTH V. NATIONAL BANK. 

(IX, 115). Miscellaneous. 

Cited in Speclcert v. German Nat Bank, 98 Fed. 153, holding 
receiver of national banlc is proper but not necessary party to action 
pending against banis at time of his appointment 

94 U. S. 441-444, 24 L. 145, CONRO v. CRANE. 

(IX, 116). Miscellaneous. 

Cited in Holden v. Stratton, 191 U. S. 118, holding certiorari is 
proper method of reviewing decision of Circuit Court of Appeals in 
banlmiptcy under United States Comp. Stat 1901, p. 341& 



31 Notes on U. S. Reports. 94 U. S. i44HlS5 

W U. S. 444-455, 24 L. 207, MULLER t. DOWB. 

Syl. 1 (IX, 116).. Suit agaiust corporatioo. 

ApproTed in Lewis v. Steamship Go., 131 N. 0. 653, 42 8. B. 969, 
following rule; Huguley Mfg. Go. y. Galeton Gotton Mills, 184 U. S. 
29G, 46 L. 549, 22 Sup. Gt 454, holding writ of certiorari to perfect 
record on appeal from Gircuit Gourt of Appeals, by supplying omis- 
sions, does not operate to bring case before United States Supreme 
Court; Goodwin v. New York, N. H. & H. R. R. Go., 124 Fed. 360, 
369, holding railroad incorporated in Massachusetts and Gonnecticut 
cannot be sued in Gircuit Gourt in Massachusetts by citizen 
tliereof; Dalton t. Milwaukee Mechanics' Ins. Go., 118 Fed. 878, 
holding averment in petition for removal that defendant is a cor- . 
pordiion and a " citizen and resident '* of a State named Is not 
equivalent of one that is organized under the laws of that State 
and is insufficient to show diversity of citizenship; Winn v. Wabash 
R. R. Go., 118 Fed. 63, holding when four railroads incorporated in 
different States were consolidated, and consolidation agreements 
were filed with the secretary of State of Missouri and in other 
States, the consolidated corporation became citizen of each State; 
Springs v. Southern Ry., 130 N. G. 193, 41 S. E. 103, holding on 
petition for removal it is indispensable to state that corporation is 
created under laws of the State; Thompson v. Southern Ry., 130 N. 
G. 144, 41 S. E. 10, holding petition corporation was originally cre- 
ated under laws of Virginia is insufficient to remove cause to 
Federal court See notes, 89 Am. St Rep. 655, 656; 85 Am. St Rep. 
920. 

Syl. 2 (IX, 117). Pleadings when corporation party. 

Approved in Peacock, etc.. Go. v. Williams, 110 Fed. 916, holding 
answer in Federal court which contains positive denials under oath 
of material jurisdictional allegations is not frivolous; Winkler v. 
Ghicago, etc., R. R. Go., 108 Fed. 309, holding averment in petition 
for removal filed by corporation that it "was and is a citizen and 
resident" of another State is insufficient to show Federal court 
Jurisdiction. 

Syl. 5 (IX, 118). Foreclosure decree of railroad. 

Approved in Miller v. Rickey, 127 Fed. 580, holding where in 
action to enjoia diversion in Galifornia of waters flowing down 
river, having therein and flowing through Nevada where com- 
plainant's lands are situated, is transitory, so that Nevada court 
having acquired Jurisdiction of person had Jurisdiction to try same; 
Guaranter, etc.. Go. v. Delta, etc.. Go., 104 Fed. 10, 12, 13, holding 
Federal court of equity may compel conveyance of land in another 
State by decree in personam; Noble v. Grandin, 125 Mich. 387, 84 
N. W. 467, holding where resident of Michigan sold to defendants, 
nonresidents, land in Missouri, agreeing that purchase price should 



04 U. S. 455-463 Notes on U. S. Reports. 

be value of timber on land, and defendant brought suit In Michigan 
to recover balance of purchase price, complainant could maintain 
an action for fraud in the sale. See 85 Am. St. Rep. 907, note. 

(IX, 116). Miscellaneous. 

Cited in Memphis Sav. Bank v. Houchens, 115 Fed. 109, holding 
court has Jurisdiction of bill to administer trust filed by beneficiary 
where facts are alleged which show that trustee has been prevented 
from executing trust 

94 U. S. 455, 456, 24 L. 165, EX PARTE SMITH. 

Syl. 1 (IX, 120). Federal courts — Presumption of jurisdiction. 

Approved in Fife v. Whittell, 102 Fed. 539, holding if right to 
removal to Federal court does not appear In record of State court 
it must be clearly shown in petition for removal or it wHl be pre- 
sumed not to exist; Kunkel v. Brown, 99 Fed. 594, holding in 
Federal court amount in dispute Is amount claimed by plaintiff in 
his pleading in good faith; dissenting opinion in Giles v. Harris, 
189 U. S. 501, 23 Sup. Gt 646, 47 L. 918, holding absence of aver- 
ment in Circuit Court that Jurisdictional amount was in dispute 
is not available on appeal to Supreme Court which raises question 
of Jurisdiction on another ground. 

94 U. S. 457-463, 24 L. 251, CONNECTICUT, ETC., LIFE INS. CO. 
v. SCHAEFER. 

Syl. 2 (IX, 121). Ii;orce of State laws. 

Approved in White v. Wansey, 116 Fed. 347, holding Congress 
having legislated on subject of competency of witnesses in United 
States court (Rev. Stat., § 858), State statute cannot enlarge it 

Syl. 3 (IX, 121). Insurance for benefit of friend. 

Approved in Supreme Assembly, etc. v. Adams, 107 Fed. 337, 
holding undec charter and rules of assessment insurance company, 
a member may designate as beneficiary a sister not depending on 
him for support; Merchants' Life Assn. v. Yoakum, 98 Fed. 257, 
holding one who takes out policy of insurance on his life for benefit 
of his estate has right to procure from another money to pay pre- 
miums, and the terms of agreement are Immaterial to company. 

Distinguished in Reynolds v. Prudential Ins. Co., 88 Mo. App. 
685, holding one may insure life for benefit of his brother. 

SyL 4 ax, 121). Insurable Interest 

Approved in In re Sllngluff, 106 Fed. 160, holding endowment 
policy of insurance on life of bankrupt payable to him, or In case 
of his death to his wife, which is assignable but has no surrender 
value, passes to his trustee under bankruptcy act 1898, § 70a, 
cl. 5; dissenting opinion In Union Fraternal League v. Walton, 109 
Ga. 6, 77 Am. St Rep. 354, 355, 34 S. E. 319, majority holding 
person may Insure his life for benefit of another. 



33 Notes ou U. S. Reports. 94 U. S. 4G3-1(:7 

Syl. 6 ax, 122). Invalidity of wager policies. 

Approved in Allen v. Hartford Life Ins. Co., 72 Conn. 696, 45 Atl. 
956, holding where Insurance policy contracting for payment to 
beneficiary if living on death of insured was delivered to bene- 
ficiary, the subsequent acts of insured did not operate as sur- 
render of beneficial interest; Chamberlain v. Butler, 61 Nebr. 739, 
86 N. W. 483, holding one may insure his own life and assign policy 
to another having no insurable Interest 

SyL 8 (IX, 122). Policy valid In inception. 

Approved in Foster v. Preferred Accident Ins. Co., 125 Fed. 538, 
holding person may effect insurance on his own life and have policy 
made payable to any person he chooses; Manhattan Life Ins. Co. 
V. Hennessy, 99 Fed. 69, holding assignee of life insurance policy 
may recover if he had an insurable interest when assignment was 
made; Sheehan t. Journeyman Butchers', etc., Assn., 142 Cal. 496, 
76 Pac. 240, holding Stat. 1873-74, p. 745, chap. 510, § 3, providing 
that on death of member of beneficial association it may levy as- 
sessment on living members to be paid to ** nominee " of deceased, 
does not entitle widow to recover unless she be nominated; Cour- 
tors V. Grand Lodge A. O. U. W., 135 Cal. 557, 87 Am. St Rep. 
142, 67 Pac. 972, holding wife named as beneficiary in policy of life 
insurance is entitled to insurance although divorced from her hus- 
band who had remarried and had children of second marriage; Over- 
hiser v. Overhiser, 14 Colo. App. 12, 59 Pac. 79, holding under by- 
law of A. O. U. W., that the beneficiary shall be named in certifi- 
cate and that If he die, the insurance in the absence of further 
designation shall go to certain heirs, obtaining a divorce is not 
equivalent to death so as to give heirs any rights; Metropolitan 
Life Ins. Co. v. Brown, 159 Ind. 647, 65 N. E. 909, holding person 
may insure his own life and assign policy In good faith, to one 
having no insurable Interest; Overhiser, Admx. v. Overhiser, 03 
Ohio St 82, 57 N. E. 966, holding when married woman is named 
as beneficiary in policy of insurance on life of her husband, she 
is entitled to proceeds of policy notwithstanding a divorce obtained 
by her. See 87 Am. St Rep. 507, 509, note. 

94 U. S. 463-467, 24 L. 254, HOWELL v. WESTERN R. R. 

SyL 3 (IX, 124). Mortgage — Default in interest. 

Approved In Gunnison v. Chicago, etc., Ry., 117 Fed. 646, hold- 
ing action to foreclose mortgage given to secure bonds of railroad 
after dismissal of- former suit where validity of lands had never 
been recognized and no interest had ever been paid could not be 
maintained on account of gross laches; Wells v. Northern Trust Co., 
195 IlL 297, 63 N. E. 140, holding under Rev. Stat, chap. 114, § 19, 
par. 10 (111.), providing that railroad company may mortpape Its 
corporate property to secure debt contracted for operating its road. 
Vol U — 8 



94 U. S. 4G7-476 Notes on U. S. Reporte. 84 

a street railroad may mortgage its property for same purpose. 
Pontotoc V. Fulton, 79 Miss. 516, 81 So. 103, holding provision In 
municipal bond, issued In pursuance of Miss. Code, § 3017, pro- 
viding that no part of principal shall be paid until maturity of 
bonds, though void, does not affect validity of bonds. 

94 U. S. 467-469, 24 L. 166, HINCKLEY v. GILMAN, CLINTON, 
ETC., R. R. 

Syl. 1 (IX, 124). Appeal by receiver in foreclosure. 

Approved in Haigh v. CarroU, 197 Ul. 196, 198, 64 N. B. 376, 
holding receiver was necessary party to writ of error sued out 
to reverse settlement of receivers account; McAnrow v. Martin, 
183 III. 473, 56 N. E. 170, holding where receiver obtains property 
under improper order, which is reversed and he Is required to 
return property, he cannot claim compensation out of the property. 

94 U. S. 469-476, 24 L. 256, MILWAUKEE, ETC., RY. v. KELLOGG. 
Syl. 3 (IX, 125). Testimony of expert witnesses. 

Approved in Lauterer v. Manhattan Ry., 128 Fed. 544, 545, hold- 
ing where plaintifTs intestate attempted to board car on elevated 
road at station after gate had been closed and car was moving, 
and after being carried beyond station platform fell and was killed, 
absence of railing across end of platform not proximate cause of 
Injury; L. Buclii & Son Lumber Co. v. Atlantic L. Co., 121 Fed. 
249, holding in action for wrongfully suing out attachment question 
to nouexi»ert as to what would have been plain tilTs ability to 
pay its obligations, if there had been no attachment and plaintifT 
could not procure certain loan, should have been allowed; Hunt v. 
Kile, 98 Fed. 53, holding in action for death through defendant's 
negligence, the question whether rope was usual for purpose to 
which it \v:is applied is not subject to expert testimony; Chicago, 
etc., R. R. Co. v. Lewondrowski, 190 111. 309, 60 N. E. 500, holding 
where (l(>'en<lant hnd introduced railroad men as experts who testi- 
fied that pt'isou struck by train running at rate of speed alleged 
could not live, it could not object to contrary opinion of medical 
men. 

Syl. 4 (IX, 125). Negligence is question for jury. 

Approved in Netherlands, etc., Nav. Co. v. Diamond, 128 Fed. 
573. applying rule in action for injuries sustained by servant of 
elevator company by falling into hold of ship; Great Northern Ry. 
V. Bruyere. 114 Fed. 543. holding where plaintiff entered caboose 
to make inquiry about the train and was requested by conductor 
to pay fare or get off, and while on platform was thrown off by 
lurch of train, question whether action of conductor was proximate 
cause of injury was for jury; Moon- Anchor, etc.. Mines v. Hopkins, 
111 Fed. 307, holding defendant was not liable for death of em- 
ployee who was killed while timl)ering mine and had been warned 



35 Notes on U. S. Reports. 94 U. S. 469-476 

not to go order timbers where he was killed; Southern Pac. Co. 
T. Yeargin, 109 Fed. 439, holding in action for death through negli- 
gence of defendant, where collision occurred with helping engine 
which carried no head-light but only a lantern which could be 
seen for short distance, and engineer of which engine thought 
passenger train was one hour late, question of negligence is for 
jury; Felton v. Harbeson, 104 Fed. 740, holding sending of dis- 
patch to be dellTered to train at certain station is violation of rule 
requiring dispatch to be delivered at least one station before pass- 
ing of trains, was proximate cause of accident; Chicago, etc., Ry. 
V. Price, 97 Fed. 429, holding in action for causing death of con- 
ductor of train, the evidence being conflicting as to whether ex- 
plosion was caused by conductor's lantern or other cause, the find- 
ing of the jury cannot be disturbed; Southern Pac. Co. v. Hall, 100 
Fed. 766, holding in action for damages for personal injuries Jury 
may consider character of plaintifTs ordinary pursuits and whether 
the injuries are so permanent as to diminish his earning power; 
Denver, etc., R. R. v. Roller, 100 Fed. 749. holding in action by 
passenger against railroad company for personal injuries, all the 
facts and circumstances may be shown; Missouri, etc., Ry. v. Byrne, 
100 Fed. 363, holding railroad company which constructs yards by 
side of track for loading stock is not responsible as common cur- 
rier for stock placed therein by owner, when it has used ordinary 
care in construction of the yards; Landgraf v. Rich, 188 111. 501, 
69 N. E. 506, holding question for Jury what was proximate cause 
of death of employee in building having no firerescapes,.she having 
when building was on fire, fallen from window through which 
she was trying to escape; Hilly er v. People, 186 111. 558, 58 N. B. 
248, holding in murder trial it is error to allow witness for prose- 
cution to testify that railroad train could not kill person without 
producing greater injuries than found on the body; Chicago, etc., 
R, R. V. Martin, 31 Ind. App. 315. 63 N. E. 594, holding when train 
backed over trestle upon which people were walking with intent to 
take train and brakeman warned plaintiff of the danger but made 
no effort to stop train, which could have been done, question of 
willfulness is for Jury; Deschenes v. Concord, etc., R. R., 09 N. H. 
289, 46 Atl. 469, holding when brakeman is found dead on top of 
train with wound over one eye where he was struck by bridge, 
railroad company is not liable. 

Syl. 5 (IX, 127). Presumption of negligence. 

Approved in Butts v. Cleveland, etc., Ry. Co., 110 Fed. 331. hold- 
ing where passenger left car because it was to be cut off from the 
rest of the train and as he stepped on to another track was told 
to look out by brakeman and accordingly stepped between the cars. 
lie cannot recover; The Manitoba, 104 Fed. 152, holding if while 



:il U, S. 4ffi)-47(i Noti'S on U. S. Heporta. 3G 

li'udiiis vessel one of the ports wbb left open and cargo damaged, 
vessel is Unble; HolwersoQ v. SL LohIb, etc.. By. Co., 157 Mo. 231. 
Ci S. W. 774. holding railroud company Is not bound by city ordi- 
uaiK^e reqiilriDj; motorman lo keep lookout and atop car as soon as 
piiBsible oa opt'roncb of danger, unless It agreed to be bound by 
such ordinance. 

Syi. 6 (IX, 123). Proximate cause of Injury. 

Approved in Choctaw, etc., R. R. r. Holloway, 114 Fed. 4B2, 
holding failure to provide ordinary road engine with brakes la evi- 
dence ol want of reasonable care to provide safe locomotive; Myers 
V, Chicago, etc., Ry., 101 Fed. 319. holding when plaintiff'a horse 
became frightened at deCendanfa train and ran along the highway 
when the plaintiff was thrown out by a ridge at the crossing, the 
defendant [a not liable; The Indranl, 101 Fed. 503, holding where 
plalntiET was a stevedore engaged in loading one portion of a ship 
and separate contractor was loading other part, he cannot recover 
for damages sustained while in the other portion of the ship: Her- 
rick v, Quigley, 101 Fed. 191, holding where switchman who went 
between the cars to conpie them and aa be attempted to step out 
bis foot was caught In the planking oC the highway and he was 
thrown under the train and killed, the proximate cause of the 
accident was left to the Jury; Union Gold Mln. Co. v. Crawford, 29 
Colo. 524, 69 Pac. 604, boldiiig where mlneowner leased a level 
having an ore tramway running to a shaft which was operated by 
owner for benefit of leasees, he la liable for accident to employee 
who waa struck by a car started by an employee of lessee; Thorn- 
ton V. Travelers Ins. Co., 116 Ga. 127, 94 Am. St. Rep. 99, 42 S, B. 
289. holding liability under accident policy cannot be defeated by 
showing that existence of hernia rendered more serious the injury 
resulting from the accident; KnoufC v. City of Loganaport, 20 Ind. 
App. 206, 59 N. E. 349, holding where there was an unguarded 
abutment Into a river caused by the extension of a street beyond 
the bridge, a pedestrian who tell off the end of the street In an 
attempt to avoid collision may recover against the city; Chicago, 
etc., R. R. Co. V. Ross, 24 Ind. App. 228, 56 N. E. 45.^, holding 
where Hre negligently started on right of way of one railroad and 
burned corn In cars of another railroad, the first railroad Is liable 
to owner oE corn; Missouri, etc., Ry. v. Columbia, 65 Kan. 398, 401, 
60 Pae. 341, holding where several grain doves piled with grain 
are blown down on track by a gale of wind, and fireman of locomo- 
tive was liilied by derailment of train, the proximate cause of the 
death was the wind; Light Co. v. Koepp, 64 Koa. "37, 68 Pac. 609, 
holding the proximate cause of Injury was not attaching private 
telephone wire to piaintlfTs electric -light poles; Baltimore City, 
etc.. Ry. Co. v. Tanner, 90 Md. 319, 45 Atl. lf^9, holding expert may 
give bla opinion aa to whether deafness was natural and probable 




87 Notes on U. S. Reports. 94 U. S. 477-492 

result of accident; La Londe v. Peake, 82 Minn. 126, 84 N. W. 727, 
bolding wliere plalntilTs horse tools fright in street and baclsod 
into an ungniarded cellar where plaintiff was injnred, the fright 
of the horse and not the ni'gnarded cellar was the proximate canse 
of the accident; Hansen y. St. Panl Gaslight Ca, 82 Minn. 87, 84 
N. W. 728, holding under allegations that certain flowers not killed 
by escaping gas were rendered valueless by the destruction of 
other flowers by gas, the proximate cause of the injury was the 
escaping gas; Chattanooga Light, etc., Go. y. Hodges, 109 Tenn. 
339, 70 S. W. 617, holding where employee ran from burning build- 
log to giye alarm and returned to building for purpose of using 
telephone, where he was burned to death, the owner of the build- 
ing is not liable; Waters-Pierce Oil Co. v. Davis, 24 Tex. Civ. 514. 
60 S. W. 457, holding where person bought most dangerous gasoline 
on market and was not warned by seller, he is liable for death 
of purchaser by explosion of the gasoline; Brush Electric Light, 
etc., Co. V. Lefevre, 93 Tex. 607, 77 Am. St. Rep. 900, 57 S. W. 641, 
bolding no negligence can be imputed to lighting company where 
decedent went upon top of awning and in falling grasped a live wire 
and was killed; Goe v. Northern Pac. Ry., 30 Wash. 659, 71 Pac. 
183, holding where servant employed about machinery slipped and 
in falling struck an unguarded lever and started machinery which 
ground his hand. If It was negligent to leave machinery ready to 
be set in motion the defendant is liable. 

(IX, 124). Miscellaneous. 

Cited in Lesser Cotton Co. v. St. Louis, etc., Ry., 114 Fed. 143, 
holding not error to refuse to charge that greater care against fire 
from engines must be exercised when in the presence of inflam- 
mable materials than under ordinary circumstances; Hickey v. 
Welch, 91 Mo. App. 12, holding plaintiff is entitled to damages 
where defendant forcibly entered plaintiff's premises and was 
abusive. 

94 U. S. 477-492, 24 L. 276, STARK v. STARR. 

Syl. 1 (IX, 133). Litigating entire cause of action. 

Approved in Bresnahan v. Tripp, etc., Leveller Co., 99 Fed. 283, 
holding on rehearing In suit for infringement of patent, other judg- 
ment sustaining validity of patent will not estop defendants from 
contesting any issues opened by rehearing; Conwell v. Neal, 118 Ga. 
G26, 45 S. E. 911, holding granting injunction on second application 
is in discretion of court; Stover v. Stark, 01 Nebr. 375, 85 N. W. 
286, holding in action to revive dormant judgment all matters de- 
fendant may have urged in defense must be held to have been 
litigated; Richardson v. Opelt, 60 Nebr. 189, 82 N. W. 380, holding 
petition for foreclosure of chattel mortgage and for deflciency judg- 
ment after sale states but one cause of action. 



94 U. 8. 493-498 Notes on U. S. Reports. 88 

SyL 4 (IX, 133). Purchaser • before government acquired sover- 
eignty. 

Approved In Clark v. Herrington, 186 U. S. 211, 46 L. 1131, 22 
Sup. Gt 874, holding approval by land department of selection by 
railroad company of sections which were subject to entry under 
homestead and pre-emption and homestead entry laws did not vest 
title in company. 

94 U. S. 493. Not cited. 

94 U. S. 494-498, 24 L. 146, THE MARGARET. 

SyL 1 (IX, 134). Vessel in tow should exercise care to follow 
tug. 

Approved in Thompson v. Win slow, 128 Fed. 82, holding towage 
company liable for stranding of tow on bar where tug master had 
no knowledge of depth of channel. 

Syl. 2 (IX, 135). Liability of tug. 

Approved in The Edmund L. Levy, 123 Fed. 685, holding tug 
not liable for sinking of canal-boat being towed by hawser 150 
feet long through floating ice; The Garden Gity, 127 Fed. 300, hold- 
ing tug not in fault for disaster to tow through mere error of 
Judgment on part of^master; The E. T. Williams, 126 Fed. 874, hold- 
ing tug responsible for loss of scow which it towed to dumping 
grounds off New York and lost on return when wind and weather 
were no worse than should have been anticipated when trip com- 
menced; The Nettie Quill, 124 Fed. 670, holding steamer towing 
barge is not liable for injury to barge, caused by striking log in 
channel, which had not been there any length of time; In r^ Moran. 
120 Fed. 560, 566, 567, holding where tug towing a dredge after line 
parted left it for several hours and then attempted to find it, tl^e 
tug was liable for the loss of the dredge; The Alabama, 114 Fed. 
218, holding tug towing barge along left-hand side of narrow river 
in path of outgoing steamers is liable for damages for collision 
with steamer; Jacobson v. Lewis, etc., Go., 112 Fed. 77, holding 
when steamer attempts to tow steamer from Seattle to Alaskan 
port by way of outside passage when inside passage is only safe 
course, the defendant is liable for loss of the steamer being towed; 
The E. Luckenback, 109 Fed. 488, holding where tug loses scows 
in tow on account of suddenly increased wind which could not 
have been anticipated, defendant is not liable; Butler-Ryan Go. v. 
Williams, 84 Minn. 453, 88 N. W. 5, holding where tug so *' improp- 
erly handled scow that certain piling was damaged,'* Judgment 
against owner of tug was proper. 

Syl. 3 (IX, 135). Facts known to tug. 

Approved in Berry v. Ross, 94 Me. 277, 47 Atl. 514, holding in 
home port tug must know channel, shoals, currents, and state of 
tides and dangers of navigation. 



89 Notes on U. S. Reports. 94 U. S. 49&-506 

W U. 8. 498, 499, 24 L. 260, SUPERVISORS ▼. KBNNICOTT. 

SyL 1 (IX, 136). Scope of former Judgment 

Approved in Illinois ex rel. Hunt ▼. Illinois Gent R. R. Co., 184 
U. S. 92, 22 Sup. Ct 306, holding every matter embraced by decree 
of United States Circuit Court wMch was affirmed by United States 
Supreme Court, except as to one point which was left open for 
further Investigation, is conclusive; New Orleans v. Warner, 180 U. 
S. 203, 45 L. 496, 21 Sup. Ct 355, holding authority of New Orleans 
to issue warrants in settlement of damages claimed by ship canal 
company was conferred by Louisiana act February 24, 1876, em- 
powering city to contract for -purchase or settlement of any right 
or privileges of said company; Yazoo, etc, Ry. Co. v. Adams, 180 
U. S. 7, 45 L. 401, 21 Sup. Ct 242, holding Federal question as to 
impairment of obligation of contract was sufficiently raised in 
State court where the case turned on existence of such contract and 
no question that contract was impaired by State legislation was 
raised; The Union Steamboat Co., 178 U. &, 319, 44 L. 1085, 20 Sup. 
Ct 905, holding question as to recoupment of one-half the damages 
to cargo from moiety of damages awarded to one vessel in collision, 
if not raised on appeal, remains open for lower court under man- 
date to enter decree in conformity to opinion on appeal; Mont- 
gomery Co. V. Cochran, 126 Fed. 458, holding where county treas- 
urer in Alabama accepted check on a bank for purchase price of 
lands sold by the county, and deposited the check on which It was 
drawn, and was credited therewith, he Is responsible on his official 
bond for the full amount of the check; James v. Central Trust Co., 
108 Fed. 931, holding Federal court will take notice of equitable 
defense in action of ejectment, although no objection !s made, since 
it is Jurisdictional; Souer v. De Bary, 105 Fed. 293, holding ques- 
tions once decided by an appellate court will not be re-examined 
on subsequent appeal; Texas, etc., Ry. v. Wilder, 101 Fed. 199, 
holding decision on appeal in action for injury to plaintiff as to 
measure of damages is conclusive, and will not be re-examined on 
subsequent appeal; Warren v. Robinson, 21 Utah, 444, 61 Pac. 30, 
holding when Judgment of nonsuit is set aside with directions to 
proceed according to opinion, the effect Is to place case In same 
position as it was when nonsuit was entered. 

(IX, 134). Miscellaneous. 

Cited in Guarantee Co. of North America v. Phenix Ins. Co., 
124 Fed. 174, holding after reversal of judgment in his favor, ap- 
pellee may maintain writ of error to review question not litigated 
CD first appeal and to reverse decree directed by appellate court 

94 U. S. 500-506. Not cited. 



94 U. S. 506-623 Notes on U. S. Reports. 4X> 

94 U. S. 506-613, 24 L. 260, ALLGORB v. JEWELL. 

Syl. 1 (IX, 137). Setting aside conveyances in equity. 

Approved in Barsfow v. Becltett, 122 Fed. 144, holding where three 
tracts of land and an island owned by person incapable of pro- 
tecting his interest were sold at execution sales at grossly inade- 
quate prices, a court of equity would entertain bill brought by his 
heirs to redeem; Walling v. Thomas, 133 Ala, 430, 31 So. 983, hold- 
ing when bill shows that deed was obtained from complainant's 
decedent while of unsound mind for one-fourth of its value, the 
bill shows right to avoid sale; Wille v. WiUe, 57 S. C. 425. 35 S. E. 
809, holding where an old and ignorant woman executed deed to 
son upon consideration that he would support her for life, she 
is entitled to cancellation of deed when son entirely failed to per- 
form contract; dissenting opinion in Stringfellow v. Hanson, 25 
Utah, 499, 71 Pac. 1058, holding under facts of tliis case, convey- 
ance from mother to daughter was properly set aside. 

94 U. S. 514r-518, 24 L. 281, DAVIS v. CROUCH. 

Syl. 1 (IX, 139). Jurisdiction of Supreme Court. 

Approved in Morgan v. Thompson, 124 Fed. 205, holding judg- 
ment of Court of Appeals in Indian Territory which reverses 
judgment of inferior court and remands cause for further proceed- 
ings is not final judgment and is not reviewable in Circuit Court 
of Appeals. 

94 U. S. 518-523, 24 L. 167, THE EDITH. 

Syl. 2 (IX, 139). Lien on vessel — Burden of proof. 

Approved in The Roanolie. 189 U. S. 194, 23 Sup. Ct 492, 47 L. 
772, holding attempt to create preferred lien on vessels under 2 
Bal. Wash. Code & Stat, §§ 5953, 5954, is in violation of admiralty 
Jurisdiction vested in courts of United States by Federal Constitu- 
tion; The Underwriter, 119 Fed. 745, holding under charter party 
which provides that charterer shall pay for all coal used, no lien 
attaches to vessel when coal was furnished at port on opposite 
side of river from home port; The Liberty, 119 Fed. 541, holding 
court of admiralty will not pay maritime creditors without lien out 
of renmants remaining after paying liens but on insolvency of 
owners of vessel will pay it over to receiver in insolvency appointed 
by State court; Stern v. La Compagne Generale, etc., 110 Fed. 998, 
holding court of admiralty may enforce remedy for tort given by 
State statute when of maritime nature; Th^^ John S. Parsons, 110 
Fed. 995, holding promise of purchaser of vessel to pay liens attach- 
ing before purchase will not be enforced when claimants fraudu- 
lently represented that they had valid liens when no lien existed. 



41 Notes on U. B. Reports. 94 U. S. 52^-534 

87L 4 (IX, 140). Maritime lien for repairs in home port 

Approved in Begins y. Dunlop SS. Co., 128 Fed. 787, holding under 
Pennsylyania law contributory negligence of stevedore engaged in 
removing hatch defeats recovery. . ._ . - 

94 U. S. 523-527, 24 L. 264, HYDE v. WOODS. 

Syl. 2 (IX, 141). Seat In stoclc exchange. 

Approved In In re Kaupisch Creamery Co., 107 Fed. 93, holding 
attachment by creditor of insolvent, who did not Icnow of insolvency 
within four months of filing petition in bankruptcy, is void under 
bankruptcy act, § 67f; In re Page, 102 Fed. 746, 747, holding seat 
in stock exchange owned by bankrupt passes to his trustee in 
banltruptcy; In re Emrich, 101 Fed. 231, holding license to occupy 
stall in city market is property of licensee which will pass to his 
trustee in bankruptcy; People v. Feitner, 167 N. Y. 6, 60 N. E. 267, 
holding under N. Y. Laws 1896, chap. 908, § 2, subd. 4, seat in 
New York Stock Exchange is not taxable. 

Syl. 3 (IX, 141). Sale of stock exchange seat 

Approved in Page v. Edmunds, 187 U. S. 604, 23 Sup. (X 202, 203, 
47 L. 322, holding seat in Philadelphia Stock Exchange under 30 
Stat at Large 566, chap. 541 (U. S. Comp. Stat 1901, p. 3451), passed 
to trustee on bankruptcy of holder; In re Olewlne, 125 Fed. 841, 
holding liquor license not subject to execution may be claimed by 
bankrupt as exempt; In re Gaylord, 111 Fed. 719, 722, holding 
under constitution of St Louis Stock Exchange upon insolvency of 
member, the exchange may on account of fraud of member expel 
him, and after paying claims of exchange and members, the balance 
of the proceeds of sale of seat would pass to his trustee; Fisher v. 
Cushman, 103 Fed. 863, holding under bankruptcy act liquor license 
of bankrupt passes to his trustee; Baltimore City v. Johnson, 06 
Md. 738, 54 Atl. 646, holding under laws of Maryland, seat in stock 
exchange was not subject to taxation; Nashda Sav. Bank v. 
Abbott 181 Mass. 535, 63 N. B. 1060, 92 Am. St Rep. 433, holding 
seat in stock exchange under restrictions of the exchange Is prop- 
erty which may be pledged; Matter of Hellman, 174 N. Y. 257, 66 
N. E. 810, 95 Am. St Rep. 582, holding under N. Y. Laws 1896, 
chap. 908, S 2, subd. 4, seat in New York Stock Exchange Is subject 
to inheritance transfer tax. 

94 U. S. 527-534, 24 L. 181, WAITE v. DOWLEY. 

Syl. 4 (IX, 143). State legislation over national banks. 

Approved in Hawley v. Hurd, etc.. Lumber Co., 72 Vt. 125, 47 Atl. 
402, holding Vt Stat, § 1306, providing that attachment of negotiable 
paper before notice of transfer does not apply to transfers to banks, 
is not unconstitutional within provision of article 4, section 2. 



d4 U. S. 535-^9 Notes on* U. S. Reports. 42 

04 U. S. 535-544, 24 L. 148, DOYLE y. CONTINENTAL INS. CO. 

Syl. 2 (IX, 144). State control over foreign corporations. 

Approved in Cable v. United States Life Ins. Co., 191 U. S. 306, 
holding fact that law is more favorable to insurance companies In 
Federal than in State court is no reason for assumption of Juris- 
diction by Federal court over suit to cancel insurance policy; BUirt- 
ford Fire Ins. Co. t. Perkins, 125 Fed. 505, holding foreign corpora- 
tion cannot contest constitutionality of statute of State permitting 
It to do business there; Greenwich Ins. Co. y. Carroll, 125 Fed. 125, 
127, holding provisions of Iowa Code, § 1754, relating to manner 
of tmnsacting business of insurance companies, are invalid; Jones 
V. Mutual Fidelity Co., 123 Fed. 532, holding imder 19 Laws Del., 
chap. 181, authorizing appointment of receiver of insolvent cor- 
porations, creates equitable right which unsecured creditors who 
have not reduced their claims to Judgment may enforce by bill in 
Circuit Court of United States; Ashe v. Union Cent Life Ins. Co., 
115 Fed. 236, holding corporation of one State domg business in 
another State under license cannot by laws of latter State be de- 
prived of right to remove cause begun In latt^ State to Federal 
court; D*Arcy v. Mutual L. I. Co., 108 Tenn. 572, 69 S. W. 769, 
holding where foreign insurance filed power of attorney authoriz- 
ing secretary of State to receive service under Term. Acts 1875, 
chap. 66, policy-holders were entitied to service after corporation 
withdrew from State. 

94 U. S. 545-549, 24 L. 283, DAVIS y. ALVORD. 
Syl. 1 (IX, 146). Enforcement of mechanic's lien. 

Approved In Hooven, etc., Co. y. John Featherstone's Sons, 111 
Fed. 86, holding foreclosure of mechanic's lien is suit in equity and 
decree is reviewable by appeal and not by writ or error; Guernsey 
V. Lazear, 51 W. Va. 335, 41 S. E. 408, holding Judgment against 
husband Is no lien during wedlock, on supposed curtesy of husband. 

Syl. 2 (IX, 146). Proof on foreclosing mechanic's lien. 

Approved in Withrow Lumber Co. y. Glasgow Inv. Co., 101 Fed. 
867, holding under Va. Code, S 2476, requiring a mechanic's lien to 
contain account of amount and character of work done, a claim 
lump sum for labor performed and material furnished is not 
sufllclent 

Distinguished in Hooven, etc., Co. v. Featherstone, 99 Fed. 181, 
holding under mechanic's lien law, Missouri, a notice of lien which 
states that all materials were furnished under one contract will 
not be sustained by proof that they were furnished under the 
contracts made at dlfTerent times. 

Syl. 5 (IX, 147). Extending time for filing lien. 

Approved In Idaho Mining, etc., Co. v. Davis. ?23 Fed. 898, 
holding under Sess. Laws Idaho 1895, p. 48, S 6, providing for time 



43 Notes on U. S. Reports. 94 U. S. 549-561 

for filing mechanic's lien, the fact that claimant had not ceasod 
to perform labor at time of filing lien did not invalidate his claim; 
Kent T. M., N. & S. Ry. Co., 115 Iowa, 385. 88 N. W. 93C. holding 
under Code, § 2091, Iowa, providing for laborer's lien on tax voted 
in aid of railroad company for constmction of road, assignment of 
laborer's time checlc carries right to enforce lien; Perrault v. Shaw. 
69 N. H. 181, 76 Am. St. Rep. 161, 38 Atl. 724, holding one who 
furnishes board to employee of briclc manufacturer under contract 
with latter does not perform labor under Pub. Stat, chap. 141, j 11. 
New Hampshire; Gaboon, etc. v. Fortune, etc., Co., 26 Utah, 95, 72 
Pac. 440, holding where under contract for construction of mill ma- 
terials were delivered almost daily until July, when mill completed 
and put in operation and remained in operation till December, and 
one mechanic remained to malce alterations and repairs, and ma- 
terials delivered in September and January, latter materials not 
furnished pursuant to original contract so as to give mechanic*s 
lien for balance due on all materials. 

94 U. S. 549-553. Not cited. 

94 U. S. 553-561, 24 L. 130, DUTCHER v. WRIGHT. 

Syl. 1 (IX, 148). Insolvency within bankruptcy act. 

ApiHTOved in In re Eggert, 102 Fed. 741, holding in determining 
whether the taking of security under bankruptcy act 1898, S 60b, 
constitutes illegal preference, nonpayment of debts is not notice of 
bankrupt's financial condition; Cox v. Wall, 99 Fed. 549, holding 
bill in equity by trustee to set aside fraudulent transfer wlU not 
be dismissed because complainant has remedy at law. 

SyL 2 (IX, 148). Preferred creditor in bankruptcy. 

Approved in Pepperdine v. National Exchange Bank, 84 Mo. A pp. 
242, holding when bank receiving payment knew of insolvency of 
bankrupt, payment may be recovered back by trustee; Rosenfeld v. 
Siegfried, 91 Mo. App. 184, holding in order to set aside payment 
of bankrupt as preferred, it must be shown that creditor knew 
bankrupt was insolvent or that he had sufficient information to 
put a prudent man on inquiry. 

Syl. 3 (IX, 149). Computing time in bankruptcy proceedings. 

Approved in In re Wolf & Levy, 122 Fed. 128, holding where bank- 
rupt gave note to creditor and afterward paid, the preference was in 
payment and must be considered as having been given at da to 
of note; Whithy Grocery Co. v. Roach. 115 Ga. 921, 42 S. E. 284, 
holding in determining whether transfer of property by debtor was 
made within four months of filin/? petition in bankruptcy, the day 
upon which transfer was made should be excluded and day petition 
was filed included; Jones v. Stevens, 94 Me. fiSo, 587, 48 Atl. 171. 
holding attachment made at 10 o'clock on September 9, 1808, against 
a person who is insolvent, is dissolved by petition in bankruptcy 



94 U. S. 561-574 Notes on U. S. Reports. 44 

filed January 9, 1899, at 2:30 o'clock; Lgmpkin v. People's Nat. Bank, 
98 Mo. App. 240, 71 S. W. 716, holding in order to avoid payment 
of bankrupt, trustee need only prove that creditor had reasonable 
cause to believe preference was intended; Aultman, etc., Co. v. 
Syme, 163 N. Y. 63, 79 Am. St. Rep. 571, 57 N. E. 171, holding N. Y. 
Laws 1892, chap. 677, as amended 1894, chap. 447, § 27, providing 
in computing time first day shall be excluded, does not apply to 
issue of writ of execution under Code Civ. Proc., § 1377; Sirrin v. 
Stover, etc., Co., 64 S. C. 460, 42 S. E. 432, holding under bankruptcy 
act 1898, providing that transfer shall be illegal when creditor has 
reasonable cause to believe It was intended to give preference, 
creditor must have such a knowledge of facts as to induce reason- 
able man to believe debtor's insolvency. 

94 U. S. 561-567, 24 L. 287, ^TNA LIFE INS. CO. v. FRANCE. 

Syl. 3 (IX, 149). Payment of premiums. 

Approved in Fidelity Mut. L. Assn. v. Jeffords, 107 Fed. 411, 
holding life insurance may be taken out for benefit of brother and 
it is immaterial what arrangements are made between them for 
payment of premiums; Supreme Assembly, etc. v. Adams, 107 Fed. 
337, holding under life insurance policy issued by defendant a sister 
not dependent on insured may be beneficiary; Merchants' Life Assn. 
V. Yoakum, 98 Fed. 257, holding one who takes out policy of insur- 
ance on his life for benefit of his estate has right to procure from 
another money with which to pay premiums and terms of the con- 
tract is no defense to action on policy; Allen v. Hartford Ins. Co., 
72 Conn. 696, 45 Atl. 956, holding an insurable interest in life of 
insured was not necessary on part of beneficiary in policy delivered 
as a gift by insured to beneficiary; Chamberlain v. Butler, 61 Nebr. 
739, 86 N. W. 483, holding one may insure his own life and assign 
policy to one having no insurable interest. 

(IX, 149). Miscellaneous. 

Cited in Farmers & Traders* Bank v. Johnson, 118 Iowa, 284, 
91 N. W. 1075, holding daughter has insurable interest in life of 
her father. See 87 Am. St Rep. 507, note. 

94 U. S. 56S-574, 24 L. 235, MERRILL v. YEOMANS. 

Syl. 1 (IX, 151). Who not infringers. 

Approved in Welsbach Light Co. v. Union, etc., Light Co., 101 
Fed. 131, holding owner of process patent cannot restrain defend- 
ant in suit for infringement from vending articles made in infringe- 
ment of patented process. 

Syl. 2 (IX, 151). Statement on application for patent. 

Approved in Schrelber, etc., Mfg. Co. v. Adams Co., 117 Fed. 834, 
holding Farwell patent No. 493,548, for adjustable stove damper, 
is valid but limited by language of its claims; Maurer v. Dickerson, 
113 Fed. 874, holding claim of patent for new chemical product is 



46 Notes on U. S. Reports. 94 U. S. 574-580 

not limited to production of particular process because it is so 
described In specification and Is the only process bj* which It can be 
produced; American Bell Tel. Co. v. National Tel. Mfg. Co., 109 
Fed. 997, holding B^llner patent No. 463,569, for combined tele- 
graph and telephone, is void because invention claimed Is not the 
one described in the application and claims are too broad; Bracewell 
V. Passaic Print Works, 107 Fed. 480, holding Whitehead patent 
No. 499,689, for improvement in aniline-black resists, is void be- 
cause specification fails to clearly describe process. 

SyL 3 (IX, 151). Interpretation of patent. 

Approved In Westinghouse Air Brake Co. y. New York Air Brake 
Co., 119 Fed. 884, holding Westinghouse & Moore patent No. 
401,916, for improved engineer's brake valve, must be limited to 
construction shown; Durfee v. Bawo, 118 Fed. 858, holding Harring- 
ton patent No. 485,542, for improvement in tubular bells, must be 
limited to particular invention described; Dayton, etc., Co. v. West- 
inghouse, etc, Co., 118 Fed. 573, holding Tesla patents No. 511,559, 
for means of operating electric motor, and No. 511,560, for device 
for practicing such method, are valid; National, etc., Co. v. Swift & 
Co., 104 Fed. 89, The Van Ruymbeke No. 367,732, for fertilizer, is 
void for want of novelty. 

94 U. S. 574-579, 24 L. 291, RBJilEF FIRE INS. CO. T. SHAW. 

SyL 1 (IX, 152). Parol contract of insurance. 

Approved in Insurance Co. of Hartford v. Ireland, 9 Kan. App. 
649, 58 Pac. 1025, holding parol agreement that fire insurance 
policy shall be renewed from year to year Is valid. 

Syl. 2 (IX, 153). Estoppel against corporation. 

Approved in Continental Fire Assn. v. Masonic, etc., Co., 26 Tex. 
Civ. 141, 62 S. W. 931, holding where charter of Insurance company 
requires all members to be residents of State, and permits insur- 
ance only on property in that State, it cannot defend action on 
ix>llcy insuring foreign property on ground of lack of power, after 
having accepted all premiums. 

94 U. S. 580-586, 24 L. 179, SEITZ v. MITCHELL. 

SyL 1 (IX, 153). Fraudulent conveyance. 

Approved in Wimberly v. Montgomery Fertilizer Co., 132 Ala. 
115, 31 So. 526, holding conveyance made to wife by third person 
at request of husband who paid consideration is void as to creditors; 
Beall V. Frank, 93 Md. 334, 335, 48 Atl. 1052, 1053, holding under 
the facts of this case the court was Justified in finding that the 
stock of goods was not purchased with the husband's money; Hal- 
stead T. Mustion, 166 Mo. 494, Oti S. W. 260, holding deed to wife 
of land bought with insolvent husband's money is void as against 
creditors; Ryan v. Bradbury, 89 Mo. App. 669, holding although 
legal title to land is in wlf^, husband may have interest therein 
subject to reach of creditors; Mendinhall t. El vert, 36 Or. 384, 69 



t)4 U. S. 586-610 Notes on U. S. Reports. -46 

r:ic. 806, holding where debtor conveys his prcq^erty to relative, aa 
ai^ninst creditors, the burden is on parties to conveyance to show 
tlie good faith; Root-Tea-Na-Herb CJo. v. Rlgrhtmire. 48 W. Va. 228, 
::6 S. E. 362, holding when married woman purchased in her own 
name a house and lot and subsequently with her husband executed 
a deed of trust to secure certain money for improvements, the 
deed of trust was superior to claims of creditors against husband. 
See 90 Am. St. Rep. 520, 550, 652, 553, note. 

(IX, 153). Miscellaneous. 

Cited In First Nat Bank of Ft. Scott v. Simpson, 152 Mo. 656, 
54 S. W. 511, holding effect of demurrer to evidence is to admit 
every material fact and every reasonable inference. 

94 U. S. 586-588. Not cited. 

04 U. S. 589-593, 24 L. 294, CLAPP v. MASON. 

Syl. 1 (IX, 156). Tax on legacies. 

Approved in Knowlton v. Moore, 178 U. S. 55, 44 L. 975, 20 Sup. 
Ct. 753, holding taxes upon legacies under 30 Stat, at Large, 448, 
§§ 29, 30, are imposed on receipt of legacies; Dixon v. Rlcketts, 
26 Utah, 225, 72 Pac. 950, upholding Laws 1901, p. 61, chap. 62, im- 
posing taxes on legacies and inheritances. 

94 U. S. 593-599. Not cited. 

94 U. S. 599-604, 24 L. 266, THE STEPHEN MORGAN. 

Syl. 4 (IX, 158). Rules of navigation. 

Approved in Merchants', etc., Co. v. Hopkins, 108 Fed. 893, holding 
schooner cannot be held liable for collision with steamer because 
she changed her course after accident was inetvl table in order to 
ease the blow. 

Syl. 1 (IX, 157). Status of party not appealing. 

Approved in Guarantee Co. of North America v. Phenix Ins. Co., 
124 Fed. 172, holding party securing all relief demanded cannot re- 
view the judgment by appeal or writ of error. 

94 U. S. 604. 605. Not cited. 

04 U. S. 606-610. 24 L. 214. RUSSELL v. PLACE. 

Syl. 1 (IX, 158). Conclusiveness of judgment 

Approved in Mitchell v. First Nat. Bank. 180 U. S. 481, 45 L. 632, 
21 Sup. Ct. 421. holding denial of claims against insolvent's estate 
in State court precludes claimant from proceeding against in- 
solvent in Federal court; Soderberg v. Armstrong. 116 Fed. 711, 
holding In suit to enjoin defendant from extracting ore from mine, 
plea in bar Is Insufficient where the defendant in the former suit 
denied that plaintiff owned the mine and that lie had extracted any 
ore; Norton v. House of Mercy, 101 Fed. 386, holding judgment of 
Kentucky court that New York corporation could not take land 



47 Notes on U. S. Reports. 94 U. S. 606-610 

wider certain will is concluaiye between the parties as to land 
situated in another State; Fritsch Foundry, etc., Co. t. Goodwin 
Mfg. Co., 100 Mo. App. 423, 74 S. W. 139, holding Judgment for 
defendant on express contract for purchase of machinery is no bar 
to subsequent action for reasonable value of the machinery which 
was retained by him. 

Distinguished in ^tna Life Ins. Co. v. Board of Comrs., 117 Fed. 
Si, holding former judgment based on general finding is conclusive 
in second action unless some new issu« ie presented. 

Syl. 2 (IX, 159). Bar of Judgment 

Approved in ^tna Life Ins. Co. v. Board of Comrs., 117 Fed. 88, 
holding when second suit is upon different cause of actioq between 
the same parties, the Judgment in former suit is bar as to every 
question litigated; In re Henry Ulfelder Clothing Co., 98 Fed. 412. 
holding when respondent- in petition in bankruptcy denies indebted- 
ness and takes issue on validity of note set fonh in petition, a 
Judgment finding allegations of petition to be true is conclusive 
of validity of petitioner's claim against the estate; Greenwood v. 
Warren, 120 Ala. 78, 23 So. 688, holding in suit by heir to cancel 
mortgage obtained by fraud, plea of res adjudicata that estate of 
decedent had been closed without showing mortgage matter was 
Involved is sufficient; M*Combs v. Wall, 66 Ark. 344, 50 S. W. 879, 
holding where former decree is set up as bar to action to determine 
title to land, and record does not show that title in second suit 
was involved in first suit, decree is not a bar; Beronio v. Ventura, 
etc., Co., 129 Cal. 236, 79 Am. St Rep. 120, 61 Pac. 959, holding 
where plaintiffs claim title superior to mortgagor and mortgagee 
they were not barred by foreclosure proceedings to which they were 
parties but in which their title was not litigated: Worth v. Car- 
michaei, 114 Ga. 701, 40 S. E. 798, holding judgment against maker 
of one of two notes does not bar maker in action on second note 
from defense which was not in issue when Judgment was rendered; 
Pitts V. Oliver, 13 S. Dak. 567, 79 Am. St Rep. 910, 83 N. W. 593, 
holding Judgment In action to foreclose mortgage on certain sheep 
is not bar to action between the parties for damages for care of 
the sheep; Marble Sav. Bank v. Williams, 23 Wash. 774, 63 Pac. 
513, holding Judgment for defendant in action to compel school 
district to levy tax to pay interest on bonds Is not bar to subse- 
quent action for Interest, and ground of former decision may be 
shown. 

Syl. 3 (IX, 161). Judgment explained by parol evidence. 

Apiwoved in Morris v. Bartlett, 108 Fed. 678, holding decree dis- 
missing libel in rem against vessel is not adjudication of non- 
liability of owners. 

Syl. 4 (IX, 163). Bar in infringement cases. 

Approved in JGtna Life Ins. Co. v. Board of Comrs., 117 Fed. 85, 
holding former Judgment based on general finding for defendant 



94 U. S. 606-610 Notes on U. 8. Reports. 48 

is bar to second action between same parties for different cause 
in which same defenses are made. 

Syl. 5 (IX, 163). When Judgment not bar. 

Approved in Wilcox, etc., Gibbs Sewing Mach. Co. v. Sherborne, 
123 Fed. 877, holding dismissal of bill for infringement where 
defenses were invalidity of patent and noninfringement and judg- 
ment is not based specifically on either, is not conclusive in action 
for royalties; Williamson v. M'Caldin Bros. Co., 122 Fed. 64, hold- 
ing decree dismissing libel brought by owner against tug for 
capsizing vessel is not bar to action by owners of tug to charge 
tow with negligence; Dennison Mfg. Co. v. Scharf Tag Label, etc., 
Co., 121 Fed. 318, holding order sustaining demurrer to bill in 
action involving trade-mark, for want of general equity, was not 
bar to action for unfair competition; Sherbourne v. Wilcox, etc.. 
Sewing Machine Co., 119 Fed. 372, holding opinion in infringement 
case must clearly show that patent was held void before it can be 
used to defeat action for royalties; Roth v. Merchants & Planters' 
Bank, 70 Ark. 203, 66 S. W. 919. 91 Am. St. Rep. 82, holding Judg- 
ment on note for patent invalid under Sand. & H. Dig., S 493, 
prescribing form of note, is not bar to action fcM* balance due; 
Terre Haute R. R. Co. v. State, 159 Ind. 470, 65 N. E. 412. holding 
Judgment for defendant on sustaining demurrer in action against 
railroad for recovery of money due for use of schools under Ind. 
Ix>c. Laws 1847. p. 77, Is not bar to subsequent action for recovery 
of same money when former complaint was fatally defective for 
failure to allege demand for accounting; Madison v. Garfield Coal 
Co., 114 Iowa, 63. 86 N. W. 44, holding Judgment in action to 
enjoin defendant from specified use of leased land wh^re question 
of proper use was submitted is bar to subsequent action presenting 
same question as to right of defendant under the lease; Child y. 
McClosky, 14 S. Dak. 188. 84 N. W. 771, holding Judgment for de- 
fendant in action for price of plow is bar to action on note given in 
payment of plow; Pitts v. Oliver, 13 S. Dak. 567, 83 N. W. 513, 79 
Am. St. Rep. 910, holding acceptance by plaintiff of surplus over 
amount of defend.nnt's claim is not bar to action against defend- 
ant for negligence in care of sheep which were the subject of 
action; Brier v. Traders' Nat Bank, 24 Wash. 721, 64 Pac. 839, 
holding in action to have Judgment lien declared superior to plain- 
tiff's deed. Judgment that plaintiff's lien was prior is not res 
Judicata on issue of fraudulent character of deed: Pethtel v. Mc- 
Cullough, 49 W. Va. 525, 39 S. E. 201, holding dismissal of agreed 
case is bar to another suit on same cause of action; dissenting opin- 
ion in Wood V. Wood, 134 Ala. 567, 33 So. 350, majority holding 
Judgment of dismissal In action of foreclosure where issue was as 
to whether there was any indebtedness is res Judicata of indebted- 
ness in suit to enjoin sale under power in mortgageu 



49 Notes on U. S. Reports. 94 U. S. 610-645 

94 U. S. 610-614, 24 L. 268, NEW JERSEY MUTUAL LIFE INS. 
CO. V. BAKER. 

Syl. 3 (IX, 164). Representation in application for insurance. 

ApiMWved In Fidelity, etc., Co. v. Phoenix Mfg. Co., 100 Fed. 607, 
holding proper to submit to Jury question whether certain employees 
w&re within meaning of insurance policy Issnel by defendant to 
plaintiff for protection against accident to employees of plaintiff; 
Travelers' Ins. Co. v. Snowden. 60 Nebr. 272. 83 N. W. 69. holding 
classification of occupation of applicant for insurance by general 
agent of company binds insurer; Bennett v. Massachusetts Mut. 
L. I. Co., 107 Tenn. 377, 64 S. W. 760, holding where medical ex- 
aminer for life insurance company falsely wrote different answers 
from those given, insured is entitled to rescind and recover pre- 
miums paid. 

94 U. e. 614-619, 24 L. 295, UNITED STATES v. JOSEPH. 

SyL 4 ax, 165). Indian title. 

Approved in Pueblo of Nambe v. Bomero, 10 N. Mex. 60, 61 Pac. 
123, holding adverse possession for more than ten years of lands 
within pueblo of Nambe under alleged deed vests title by adverse 
possession; State v. Columbia George, 39 Or. 133, 65 Pac. 606, hold- 
ing under Supp. Rev. Stat., p. 482, chap. 341, relating to trials of 
Indians committing murder, an allottee of Umatilla reservation 
charged with murder could only be tried In Federal courts. 

94 U. S. 619, 620. Not cited. 

94 U. S. 621-631, 24 L. 298, EAMES v. HOME INS. CO. 
ISyL 3 (IX, 166). Sufficiency of application for insurance. 

Approved in Western Assur. Co. v. McAlpln, 23 Ind. App. 225, 55 
N. B. 121, holding court of equity will enforce oral contract for 
policy of fire insurance and adjudge the damage; Travelers' Ins. Co. 
V. Snowden, 60 Nebr. 272, 83 N. W. 69, holding classification of 
occupation of applicant for Insurance by general agent binds in- 
surer. 

Distinguished In Northern Assur. Co. v. Grand View Bldg. Assn., 
183 U. S. 349, 351, 46 L. 230, 231, 22 Sup. Ct. 148, 149, holding in- 
surance company did not waive condition in policy rendering it void 
in case of other insurance, although known to its agent when the 
agent Issuing the other policy had no authority to waive conditions 
therein stated. 

94 U. S. 631-645, 24 L. 133, COMMISSIONERS OF JOHNSON CO. 
V. THAYER. 

SyL 5 (IX, 168). Corporation holding its own stock. 

Approved in Grain, etc., Co. v. Jones, 21 Tex. Civ. App. 201, 51 S. 
W. 26, holding under Tex. Rev. Stat. 1895, art. 665, corporation may 
purchase its own stock. 
Vol II — 4 



04 U. S. 645-6G0 Notes on U. S. Reports. (M? 

04 U. S. G45-G50, 24 L. 302, BOYD v. ALABAMA. 

Syl. 1 (IX, 168). Decision in former case. 

Approved in Yazoo, etc., R. R. Go. y. Adams, 81 Miss. 119, 32 So. 
048, liolding under various sections of Miss. Code 1892, re- 
lating to assessment of railroad property, the board of railroad 
assessors has no jurisdiction to determine questions of exemption 
so as to render them res Judicata; Hanrick v. Gurley, 93 Tex. 479, 
480, 55 S. W. 120, 56 S. W. 330, holding Judgment for defendant in 
action by owner of entire tract Involving one parcel Is bar to subse- 
quent action for whole parcel; dissenting opinion in Deposit Bank 
V. Frankfort, 191 U. S. 523, majority holding final decree in Federal 
court enjoining collection of taxes and adjudging Irrevocable ex- 
emption which vests upon effect of Judgment in State court is con- 
clusive while it remains In force. 

(IX, 108). Miscellaneous. 

Cited in Odd Fellows' Cemetery Assn. y. Johnson, 140 Cal. 236, 
73 rac. 990, holding ordinance of city and county of San Francisco 
proliibiting interments of dead within city limits Is valid exercise of 
police power. 

94 U. S. 650, 651. Not cited. 

94 U. S. ^2-660, 24 K 216, CRIM y. HANDLBY. 

Syl. 1 (IX, 170). When equity enjoins judgment at law. 

Approved in National Surety Co. v. State Bank, 120 Fed. 508, 
604, holding Federal court has jurisdiction to enjoin enforcement 
of unconscionable judgment of State or national court; Holton y. 
Davis, 108 Fed. 149, holding Judgment cannot be Impeached for 
fraud upon proof of false testimony where falsity was shown on 
motion for new trial which was denied and affirmed by appellate 
court; Pittsburg, etc., Co. y. Keokuk, etc., Co., 107 Fed. 786, hold- 
ing bill of review for newly discovered evidence should be brought 
in court in which decree was rendered; Allen y. Allen, 97 Fed. 529, 
holding court of equity will not set aside Judgment at law on 
ground that It was not warranted by pleadings; Brooks y. Twitchell, 
18^ Mass. 446, 65 N. E. S44, 94 Am. St. Rep. 605, holding where at- 
torney for administrator knew that property was Incumbered with 
three mortgages, the last by the administrator, action by him as 
purchaser against administrator to cancel mortgage given by ad- 
ministrator will be dismissed; Stephenson v. Kllpatrick, 166 Mo. 
269, 65 S. W. 774, holding mortgagor given certain time within 
which to redeem will be relieved by equity where redemption is 
prevented by fraud; Patterson v. Yancey, 97 Mo. App. 697, 71 'S. W. 
850, holding suit to restrain collection of default Judgment cannot 
be maintained on ground that pleadings showed action barred by 
Statute of Limitations. 



51 Notes on U. S. Reporta 04 U. S. (KmMiSI 

94 U. S. 660-671. Not cited. 

94 U. S. 672, 673, 24 D. 437, GODDARD ▼. ORDWAY. 

SyL 3 (IX, 172). Scope of supersedeas. 

Approved In Blinn v. Continental, etc., Co., 110 Fed. 267, holding 
where after appointing receiver bill was dismissed and report of 
referee was referred to master, appeal from first decree and super 
sedeas did not prevent making of statement of receiver's account: 
Coleman ▼. Fisher, 66 Ark. 45, 48 S. W. 806, holding appllcatlcn for 
appointment of receiver pending appeal from decree dismissing 
complaint to foreclose mortgage should be made to chancellor. 

(IX, 172). Miscellaneous. 

Cited in Hawkins v. Investment Co., 38 Or. 554, 64 Pac. 324, 
holding under Hill's Anno. Laws, § 3587, Oregon, declaring that all 
money bears interest, judgment for unpaid subscriptions bears 
interest. 

94 U. S. 67a-681, 24 L. 168, CASEY ▼. GALLI. 

SyL 1 (IX, 173). Estoppel against stockholders of Insolvent bank. 

Approved In Brown v. Ellis, 103 Fed. 836, following rule; Stude- 
baker v. Perry, 184 U. S. 264, 46 L. 532, 22 Sup. Ct. 466, 467, holding 
comptroller of currency Is authorized to make second assessment 
upon shareholders of insolvent national bank when first assessment 
is Insufilclent to pay debts by U. S. Rev. Stat., S 6234; Moss v. 
Whitzel, 108 Fed. 581, holding assessment by comptroller upon 
stockholders of national bank is not conclusive as to validity of 
debt sought to be paid by assessment; Bailey v. Tillfngbast, 90 Fed. 
805, 806, holding comptroller's certificate authorizing Increase of 
capital stock of national bank is conclusive of facts necessary to 
such Increase; Aldrlch v. Campbell, 97 Fed. 665, 667, 608, holding 
assessment of comptroller of currency against stockholders of in- 
solvent national bank Is conclusive against stockholders; Howarth 
y. Lombard, 175 Mass. 578, 56 N. E. 891, holding under Hill's Anno. 
Stat & Code Wash., S 1511, relating to liability of stockholders 
of banking corporations, the stockholders must be presumed to 
have known that on becoming insolvent receiver might be appointed 
and liability determined. 

4SyL 2 (IX, 174). Action by receiver of Insolvent bank. 

Approved in Deweese v. Smith, 106 Fed. 441, holding Judgment 
In favor of receiver of insolvent national bank for recovery of 
assessment made by comptroller does not estop him from main- 
taining a second action for another assessment 

Syl. 6 (IX, 174). Defense to action on stockholder's liability. 

Approved in Deweese v. Smith, 106 Fed. 446, holding Judgment 
for part of entire demand against shareholder of national bank is 
bar to action for residue. 



04 U. S. G82-711 Notes on U. S. Reports. 62 

(IX, 173). Miscellaneous. 

Cited in Hale v. Allinson, 188 U. S. 78, 23 Sup. Gt. 253, 47 L. 886. 
holding receiver cannot maintain suit in foreign jurisdiction to 
enforce statutory liability of stockholders in insolvent corporations; 
Hoyd V. •Schneider, 124 Fed. 242, holding right to maintain suit 
against directors of insolvent national bank under U. S. Comp. Stat. 
1901, p. 3515, to recover sums alleged to have been lost througb 
mismanagement is in receiver; Williamson v. American Bank, 115 
Fed. 798, holding when national bank goes into liquidation only 
procedure for enforcement of liability of stockholders is by bill in 
equity under act June 30, 1876 (19 Stat. 63). 

94 U. S. 682-605, 24 L. 219, SCOTLAND COUNTY v. THOMAS. 

Syl. 1 (IX, 175). Constitutional abrogation of powers previously 
granted. 

Approved In Board of Comrs. v. Travelers' Ins. Co., 128 Fed. 822, 
holding N. C. Const 1868, art. 2, \ 14, requiring acts authorizing 
municipal debts to be passed in specified manner, did not invalidate 
county bonds issued thereafter under authority of act previously 
passed without such specified formalities; Board of Comrs. v. Coler, 
113, Fed. 736, 737, holding ordinance allowing counties near line of 
railroad to subscribe for stock applied to another county into which 
railroad extended under subsequent act of legislature. See 80 Am. 
St. Rep. 631, note. 

Syl. 2 (IX, 176). Municipal authority to subscribe to stock. 

Approved In Board of Comrs. v. Travelers' Ins. Co., 128 Fed. 821, 
applying rule under North Carolina Constitution and laws; Edwards 
V. Bates Co., 117 Fed. 633, holding Laws Mo. 1868, p. 02, authorizing 
townships to subscribe to stock of railroad corporations, and pro- 
viding for issue of bonds in payment therefor by court, sale of 
the bonds at discount by commissioner who was paid commission, 
^ut of proceeds was invalid. 

^X, 175). Miscellaneous. 

Cited in In re Nevitt, 117 Fed. 450, holding writ of habeas corpus 
challenges only jurisdiction of court to commit prisoner and cannot 
review erroneous rulings; Springfield Lighting Co. v. Hobart, 08 
Mo. App. 236, 68 S. W. ^4, holding where surety executed boud 
for faithful performance of contract to furnish power for electric- 
light company, upon consolidation with another company the surety 
remains liable. 

94 U. S. 606-711, 24 L. 238, OAWOOD PATENT. 

Syl. 1 (IX, 177). Sufllclency of first patent. 

Approved in Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 
421, 46 L. 080, 22 Sup. Ct 706, holding process claimed by Jonei^ 



» Notes on U. S. Reports. 04 U. S. 711-734 

patent No. 404,414 for mixing moulten pig-iron, was not anticipated 
by prior patents. 

94 U. S. 711-716, 24 L. 307, PIKE v. WASSELL. 

Syl. 5 (IX, 179). Rights of heirs apparent 

Approved in Heirs of Ledoux v. Lavedan, 62 La. Ann. 323, 327, 27 
So. 201, 202, holding title of property at confiscation sale passes to 
heirs after death of confiscatee. 

ax, 179). Miscellaneous. 

Cited in Heirs of Ledoux y. Lavedan, 62 La. Ann. 328, 27 Sa 203, 
holding question of title to property outstanding after oonfiscation 
proceedings has never been settled; dissenting opinion in Shrlgley 
V. Black, 66 Kan. 225, 71 Pac. 305, majority holding mortgagor of 
real estate cannot defeat mortgage by any lien growing out of taxes 
which he has suffered to become delinquent 

94 U. S. 715-718, 24 L. 244, MEMPHIS v. BROWN. 
Syl. 2 (IX, 179). Motion to set aside judgment 

Approved in United States v. LInnler, 125 Fed. 86, holding tifter 
verdict of murder in second degree not warranted by evidence court 
has power to pronounce judgment for manslaughter upon plea of 
guilty to that charge; Lincoln v. First Nat| Bank, 64 Nebr. 732, 90 
N. W. 877, holding where motion for new trial Is seasonably made 
and not ruled on until after rendition of judgment time in which 
error proceedings may be begun will not begin until ruling made on 
motion for new trial. 

94 U. S. 718-727, 24 L. 310, CHESAPEAKE, ETC., B. R. v. VIR- 
GINIA. 

Syl. 2 (IX, 180). Rights of consolidated companies. 

Approved In Yazoo & M. V. R. R. Co. v. Adams, 180 U. S. 20, 46 L. 
406, 21 Sup. Ct. 247, holding railroad corporations exempt from 
taxation prior to new Constitution of Mississippi, upon consolida- 
tion, came within provisions of Const 1890, § 180, relating to 
taxation of corporations. See 89 Am. St. Rep. (S32, note. 

94 U. S. 728-734, 24 L. 245, BLAKE v. ROBERTSON. 

Syl. 4 (IX, 181). Damages for infringement of patent. 

Approved in Kansas City Hay Press Co. v. Devol, 127 Fed. 366, 
holding where patent is for improved part only of machine, other 
parts being open to defendant's use, burden is on complainant to ap- 
portion damages and defendant's profits between patented and un- 
patented feature; Elgin Wind, etc., Co. v. Nichols, 105 Fed. 783, 
holding in suit for infringement of improvements of patents r& 



94 U. S. 734-745 ' Notes on U. S. Reports. 54 

latlng to wind-mills, burden of proof is on complainant to show 
what part of profits was due to improvement. 

94 U. S. 734-740, 24 L. 136, JEROME ▼. McCARTEB. 

Syl. 1 (IX, 182). Parties to foreclosure proceedings. 

Approved in Globe Loan, etc., Trust Co. v. EUer, 61 Nebr. 228, 85 
N. W. 49, holding where junior mortgagee foreclosed mortgage in 
which senior mortgagee was not party, and interest of mortgagor 
fixed at gross appraised value less amount of prior mortgage, the 
sale was regular. 

6yl. 5 (IX, 183). Priority of liens. 

Approved in Pueblo Trac. Jc B. Co. v. Allison, 30 Colo. 341, 70 
Pac. 425, holding facts did not justify granting receiver right to 
build mile of railroad against protest of mortgagee; Houston Ice, 
etc., Brewing Co. v. Fuller, 26 Tex. Civ. 241, 63 S. W. 1049, holding 
in suit where receiver was appointed to wind up afTairs of firm, the 
expenses of receiver were not superior to that of mortgagee of firm. 

Distinguished in In re Byrne, 97 Fed. 764, holding employee's 
wages to extent of $100 are preferred to landlord's lien for rent in 
case of Insolvency. 

Syl. 7 (IX, 183). When pledgee may sell. 

Approved in In re Standard Laundry Co., 116 Fed. 478, holding 
where owner of mortgage of personal property sold it subject to. 
mortgage, upon insolvency of purchaser, the proceeds of the sale 
of the property should be paid to the mortgagee. 

(IX, 182). Miscellaneous. 

Cited In Bibter-White Co. v. White River Val., etc., Co., 115 
Fed. 790, holding receiver has no authority to issue certificates for 
completing railroad and to make same lien on road without giving 
bondholders right to be heard. 

04 U. S. 741-745, 24 L. 190, CORCORAN v. CHESAPEAKE, ETC., 
CANAL CO. 

SyL 2 (IX, 184). Mailing parties defendants. 

Approved in Montgomery v. M'Dermott, 99 Fed, 504, holding suit 
in equity cannot be maintained in aid of attachment when com- 
plainant was party to prior suit in which it was held that his attach- 
ment was ineffectual. 

Syl. 3 (IX, 185). Effect of decree against trustee. 

Approved in Fletcher v. Ann Arbor R. R. Co., 116 Fed. 481, 
holding fraud of receiver appointed by court to malse sale under 
foreclosure in selling for less than its value is not ground for set- 
ting aside sale by beneficiary in mortgage deed; Shryoclt v. Hensel, 

95 Md. 628, 629, 53 Atl. 415, holding judgment in action to foreclose 
mechanic's lien in which other lienholders were made defendants, 
is not res Judicata as to such defendants on question of ownership 



6S Notes on U. S. Reports. 94 U. S. 746-707 

of premises; National Marine Bank y. Heller, 94 Md. 219, 50 AtL 
523, holding ratification of auditor's account of expenses allowed 
by receiver of insolvent corporation was res judicata as to receiver 
and creditors ^ho had opportunity to be heard* 

94 U. S. 746-752. Not cited. 

94 U. S. 753-762, 24 L. 170, COLLINS ▼. GILBERT. 

Syl. 2 (IX, 186). Defense against bona fide holder of note. 

Approved in Pape v. Hartwig, 23 Ind. App. 337, 55 N. B. 272, hold- 
ing in action by purchaser of notes against maimer where defense 
was that notes were given for patent right, evidenoe as to plain- 
tiff's mode of loaning money was not admissible. 

Syl. 3 (IX, 187). Presumption from possession of note. 

Approved in Salmon v. Rural Independent School Dist, 125 Fed. 
242, holding holder of school bonds illegally issued has burden of 
proving good faith; Sinlcler v. Siljan, 136 CaL 362, 68 Pac 1026, 
holding in order to create presumption of knowledge of facts im- 
peaching note procured by fraud, it must be shown that plaintifF 
had Itnowledge of facts; Plummer v. Park, 62 Nebr. 667, 87 N. W. 
534, holding possession of note and mortgage is evidence of owner- 
ship; dissenting opinion in Warman v. First Nat Bank of Akron, 
Ohio, 185 IlL 66, 57 N. B. 8, 9, all holding possession of notes in- 
dorsed in blank is prima facie evidence of ownership. 

94 U. S. 762-767, 24 L. 813, FORBES v. GRACEY. 
SyL 1 (IX, 18^. Recognition of rights of miners. 

Approved in Cosmos Exploration Ck>. v. Gray Eagle, etc., Co., 
112 Fed. 16, holding lands were not "vacant and open to settle- 
ment" when they were actually occupied by persons engaged in 
exploring for oIL 

SyL 3 (IX, 188). Construction of Nevada mining lien. 

Approved In McKInley Creek Mining Co. ▼. Alaska United Min- 
ing Co., 183 U. S. 572, 46 L. 335, 22 Sup. Ct 87, holding sufllcient 
location of placer mining claims is made by notice upon stump of 
claim running 1,5(X) feet along creek and 300 feet each way from 
center of creek. 

Syl. 4 (IX, 189). Nature of mining claim. 

Approved in Blake v. Thome, 2 Ariz. 350, 16 Pac. 271, holding 
one conveying mining location Is estopped to deny validity of loca- 
tion; Alexander v. Sherman, 2 Ariz. 329, 16 Pac. 46, holding after 
delivery of certificate of sale under foreclosure of mortgage upon 
mining claims, attempt on part of mortgagors to abandon location 
BO that relocations might be made to defeat mortgage Hen Is void; 
Butte Hardware Ca v. Frank, 25 Mont 349, 65 Pac. 3, holding judg- 



I u. 



Reports. 



M 



. M U. S. 76T-798 
) ment lien on uapalented mining claim Is not lost by Irunsfar of 

claim. 
I (IX, 188). MiscellaneoUB. 

' Cited in Burns y. ClBrt. 133 Cal. 63C. 66 Pac. 13. hoWlng laborer 

employed by owner ol mine to eicavate well Bite on public land 
IB entitled as first talter to pocket of gold not on location; Ah Kie 
▼■ McLean. 3 Idaho. 344. 32 Pac. 202. bolJlng prior to act of Con- 
BTMB. March 3. 1887, known aa "AUen Act," aliens could hold min- 
ing gron-nd In Idaho. 
94 U. S. 767-77Z.- . Not cited. 
M U. a. 773-780. 2-1 lT'^^T. HOGAN v. KUBTZ. 

Syl. 5 (IX, 191|. SeconaSiyj^vidence when original destroyed. 

Dlatlngulshed in United Stat^l^^Price, 113 Fed. ffi2, holding 
Where evidence shows that records b^e been destroyed without 
fault of defendant, oral testimony may b^W**™'**^- 

(IX, IM). Miscellaneous. 

Cited In Strlckley v. Hill, 22 Utah, 270. 62 Pac.^te^- holding find- 
ing that first party was citizen and second party TfcP naturalized 
citizen win not be disturbed under facta oC this case." 
94 U. S. 780-792, 24 L. 139, COCHRANE v. DEENEH. 

Syl. 2 (IX, 192). A process may be patented. 

Approved in Steininetz v. Allen. 192 U. S. 559. 24 Sup. Ct\ 
holding under Rev. Stat., $ 4SS(i. inventor may Join Inventions v 
are related to each other in one patent; Fabric Coloring Co. ' 
ander Smith, etc., Co., 109 Fed. 330. holding Horack patent Nlf 
603,992, for process for coloring yarn, is not void. 

Syl. 3 ax. 192), Patents — One invention may include others. 

Approved In Dowagiae Mfg. Co. v. Brenuan. 127 Fed. 150, up- ' 
holding Hoyt patent No. 446,230, for improvement in grain drills. 

Syl. 1 (IX, 192). Definition of process. 

Approved in Chisholm v. Johnson, 100 Fed. 200, holding letters- 
patent No. 421,244 to Chisholm, Cor machine hulling green peas, are 
valid; Klrchberger v. American Acetylene Burner Co., 124 Fed. 773. 
holding Dolan patent No. 589,342. for tip for acet^'lene gas burners, 
iB valid; Dowagiae Mfg. Co. r. Minnesota Mollue Plow Co.. US Fed. 
141, holding Hoyt patent No. 446,230, for Improvement in grain 
drills. Is valid; Dowagiae Mfg. Co. v. Superior Drill Co.. 115 Fed. 
902, 904, holding Packham patent No. 657,868, for Improvement In 
disk grain drUIs, Is valid; Streator, etc.. Glass Co. v. Wire-Glass 
Co.. 97 Fed. D55. holding Shoman patents No. 423,021, for process 
for making wire-glass, valid. 
S4 U. 8. 7e2~798. Not cited. 




^X Notes on U. S. Reports. 94 U. S. 79^-812 

T7. S. 798-800, 24 L. 144, AMERICAN BRIDGE GO. ▼. HEIDELr 

BACH. 
S^l 1 (IX, 194). Rights undar mortgage. 

approved in Atlantic Trust Co. v. Dana, 128 Fed. 217, 219, 
tiolding where on commencement of foreclosure of corporation 
xnortgage which covered income property was in possession of re- 
ceiver appointed in creditor's suit, mortgagee by interyenlng in 
receivership suit obtained priority as to income earned thereafter by 
receiver against ordinary judgment creditors intervening later; 
Bagrley v. Illinois Tr., etc., Sav. Bank, 199 111. 79, 64 N. E. 1086, 
boldJng appointment of receiver under deed of trust pending fore- 
closure is proper where grantor fails to keep his agreement; St 
^ula Nat Bank v. Field, 156 Mo. 312, 56 S. W. 1097, holding when 
administrator has taken possession of intestate's land, receiver of 
Penholders cannot collect rents. 
^X^ 194). Miscellaneous. 

^^ted in American Water- Works, etc., Co. v. Home Water Co., 
115 B^ed. 175, holding when guarantor of bonds of company has paid 
Inter-^st on company's default, he may maintain action to enjoin 
"^^ilment of franchise where such action will render mortgaged 
^^^P^rty valueless. 

^ TJ. S. 801-806. Not cited. 

^ TJ. S. 806-812. 24 L. 324, SULLIVAN ▼. PORTLAND, ETC., 
R. R. 
Syl. 2 (IX, 197). Sufficiency of remedy at law. 

Approved In Minnesota Life Ins. Co. v. RIggs, 123 Fed. 316, hold- 
^g insurance company may maintain suit to cancel life insurance 
policy after death of insured when fraud was not discovered dur- 
ing his life; Calivada Colonization Co. v. Hays, 119 Fed. 208, hold- 
ing after the lapse of six years corporation cannot maintain suit to 
cancel stock on ground that issuance was unauthorized; Mutual 
Life Ins. Co. v. Pearson, 114 Fed. 396, holding where insurance 
policy provided that it should not take effect until payment of first 
premium by insured in good health, payment while he was suffering 
with appendicitis is sufficient for cancellation of policy in equity; 
United States Life Ins. Co. v. Cable, 98 Fed. 763, holding Federal 
court has jurisdiction of case brought by insurance company for 
cancellation of policy which was procured by fraud where insur- 
ance company is not resident of same State as defendant. 

SyL 3 (IX, 197). Election between equity and law. 

Approved in Cabaniss v. Reco Min. Co., 116 Fed. 323, holding 
complaint which stated that trustees in deed of trust executed by 
firm to creditors had commenced action against complainant to 
recover balance due and that complainant had executed notes which 



»4 U. S. 812-^4 Notes on U. S. Reports. 68 

latter had discounted, and that funds of trust estate were being 
misapplle* does not state cause of action. 

Syl. 4 (IX, 197). Defense of stale claim. 

Approved in M'Cann and Others V; Welch and Another, 106 Wis. 
140, 81 N. W. d98, holding In action to cancel deed, court should 
refuse to entertain action though the ten years' statute was not 
pleaded where no reason for delay is shown. See 89 Am. 6t Bep. 
629, note. 

Syl. 6 (IX, 199). Laches. 

Approved in Westinghouse Air Brake Co. ▼. New York Air Brake 
Co., Ill Fed. 742, holding where patent has lain dormant for fifteen 
years and has been infringed for seven years with knowledge of 
complainant, an accounting will not be granted; Williamson' ▼. 
Monroe, 101 Fed. 330, holding suit in equity will not be stayed for 
laches before time fixed by Statute of Limitations unless unusual 
conditions are shown; Union Pac. Ry. Co. v. Cook, 98 Fed. 286, 
holding where lot conveyed upon condition that it would be used 
for particular purpose was washed away before reasonable time 
to perform cannot be recovered by grantor; New York Security, etc^ 
Co. V. Louisville, etc., R. R., 97 Fed. 233, holding delay in acceptance 
of offer of consolidated company to take up bonds of constituent 
companies and issue new bonds for nine years is unreasonable; 
Morgan v. King, 27 Colo. 549, GS Pac. 419, holding under Mill's 
Anno. Stat, S 2911, Colorado, providing that actions for fraud shall 
be commenced within three years after the discovery thereof, and 
section 2912, providing for ten-year limitation when existence of 
trust involved, ah action brought May 7, 1896, to set aside deed 
made December 11, 1891, is in time; Old Times Distilling Co. ▼. 
Casey, etc., Swasey, 104 Ky. 620, 47 S. W. 611, holding where two 
distilling concerns began use of same brand ten years ago, one 
could not enjoin its use by the other who had added to its value 
by advertisement 

(IX, 197). Miscellaneous. 

Cited in Potts v. Alexander, 118 Fed. 890, holding State Statute 
of Limitations on issue of laches is not binding on Federal court; 
Scott V. Crouch, 24 Utah, 389, 67 Pac. 1071, holding in action by 
locator of mining claim against patentee to declare trust knowledge 
of fifteen years without objection of claim of patentee would bar 
recovery. 

94 U. S. 812-824, 24 L. 184, BOWBN v. CHASE. 

SyL 2 (IX, 200). Directions to trustee. 

Approved in Estate of Fair, 132 Cal. 573, 00 Pac 447, 448, hold- 
ing express trust to convey real property to beneficiaries is yoid 
under laws of California. See 84 Am. iSt Rep. Ill, note. 



XOV UNITED STATES. 



% U. 8. 1-3, 24 L. 347. PACIFIC R. R. ▼. KBTCHUM. 
SyL 1 (IX, 202). Only pleadings below considered on appeal. 

Approved In McClure-Mabie Lumber Co. v. Brooks, 46 W. Va. 
73a, 34 S. £1 921, holding on certiorari Circuit Court may allow 
lower court to amend returns on summons. See 72 Am. St Rep. 
91 note. 

Distinguished in Burget v. Robinson, 123 Fed. 265, holding Clr- 
cnit Court staying mandate after judgment retains jurisdiction 
and may grant rehearing until mandate issued. 

SyL 2 (IX, 202). Appointment of receiver refused pending appeal. 

Approved In Ck>leman v. Fisher, 66 Ark. 45, 48 S. W. 808, denying 
appointment of receiver pending appeal, holding application should 
be made to court granting decree. 

» U. S. 3-10, 24 L. 591, PHIPPS v. SEDGWICK. 

SyL 3 (IX, 202). Misapplied partnership property recoverable by 
aBsignee. 

Approved in Bigby v. Wamock, 115 Ga. 393, 396, 41 S. B. 624, 
holding partnership funds withdrawn fraudulently and settled on 
"vrlfe recoverable by assignee of bankrupt partnership. 

SyL 4 (IX, 202). Property fraudulently conveyed to wife recov- 
erable. 

Approved In Ck>x v. Wall, 99 Fed. 549, allowing bill in equity by 
^tmistee in bankruptcy setting aside fraudulent sale though remedy 
*^ law available. 

^6 D. S. 10-16. 24 L. 333, SHAW v. BILL. 

SyL 1 (IX, 203). Attorney may represent company and trustee. 

Approved in In re Boston Dry Goods Co., 125 Fed. 229, allow- 
'^^ attorney to enter appearance for creditors in bankruptcy and 
^^«o to amend their votes. 

^ TJ. S. 16-19, 24 L. 346, NEW ORLEANS, ETC., BANKING CO. 
v. MONTGOMERY. 

^yL 2 (IX, 204). Trust deed securing notes passes therewith. 

A^pproved in Swift v. Bank of Washington, 114 Fed. 045, holdlnj; 
*^Blgnment of note before maturity to fair purchaser carries cliattel 
Mortgage given as security; O'Rourke v. Wahl, 100 Fed. 277, holding 

[59] 



95 U. S. 19-37 Notes on U. S. Reporta. 00 

bona fide purchaser of notes before maturity can enforce trust deed 
given to secure notes. 

95 U. S. 19-22. 24 L. 369, ADAMS v. NASHVILLE. 

Syl. 2 (IX, 205). State cannot discriminate against national banks. 

Distinguished In Primm v. Fort, 23 Tex. Civ. 615, 57 S. W. 91, 
denying taxpayer's right to set ofT Indebtedness against assessed 
valuation of national bank stoclc In absence of proof of discrimina- 
tion against hank. 

95 U. S. 23-33, 24 L. 348. REED v. INSURANCE CO. 

Syl. 1 (IX, 206). Surrounding circumstances admissible to con- 
strue contract 

Approved in Union Selling Co. v. Jones. 128 Fed. 675, holding 
parol evidence Inadmissible to explain warranty of binder twine, 
" quality guaranteed," such imparting warranty of reasonable fit- 
ness for use; American Bonding, etc., Co. v. Takahashl, HI Fed. 
129, allowing extrinsic evidence for construction of contract requir- 
ing money to be paid to " X, trustee," to fix responsibility for 
trustee's defalcation; Western Union Tel. Co. v. American Bell 
Tel. Co., 104 Fed. 687, admitting extrinsic evidence of negotiations 
to explain doubtful contract providing for royalties payable for use 
of patents In litigation between rival telephone companies; Marsh 
V. Insurance Co., 71 N. H. 256, 51 Atl. 900, construing Insurance 
policy " on frame mill and additions used as pall shop," to include 
building twelve feet distant connected by movable bridge. 

Distinguished in Heine Safety Boiler Co. v. Francis Bros., etc., 105 
Fed. 417, holding written contract of specifications for boilers supeiv 
seded by independent specifications submitted by bidder and ac- 
cepted by builder. 

Syl. 2 (IX, 206). Meaning of contract construed. 

Approved in Rainey v. Hogsett, 100 Fed. 211, construing receipt 
providing for deduction of shortage of lands in mining contract as 
extending prior agreement. 

95 U. S. 33-37, 24 L. 351, VAN REYNEGAN v. BOLTON. 

Syl. 2 (IX, 207). Magistrate's delivery of possession necessary. 

Approved In United States v. Elder, 177 U. S. 117, 44 L. 695, 20 
Sup. Ct 542, holding governor's indorsement on petition directing 
prefect to ascertain title insufficient record of grant to claimant; 
United States v. Ortiz, 176 U. S. 447, 44 L. 539, 20 Sup. Ct 476, 
holding under act of Congress, March 3, 1891, § 13, opinion evidence 
of witnesses insufficient to create inference of valid land grant. 

Syl. 5 (IX, 207). Grantee entitled until government claim es- 
tablished. 

Approved in Lockhart v. Wills, 9 N. Mex. 355, 54 Pac. 340, hold- 
ing lands of Mexican grant in New Mexico sub judice in Court of 
Private Claims open to public under United States mining laws. 



61 Notes on XT. S. Reports. 95 U. S. 87-42 

85 U. S. 37-42, 24 L. 335, McMILLEN v. ANDERSON. 
Syl. 3 (IX, 208). Due process not necessarily judicial proceeding. 

Approved in Turpin v. Lemon, 187 U. S. 58, 23 Sup. Ct 23, 47 L. 
7i dismissing bill impugning tax sale on ground that sheriff's 
return was defectiye; French v. Barber Asphalt Paving Co., 181 
U. S. 332, 333, 45 L. 885. 21 Sup. Ct 627, 628, upholding legislative 
authorization of apportionment of street paving according to front- 
age of lots without hearing as to benefits; State v. Moore, 2 Pennew. 
(Del) 321, 46 Atl. 675, upholding prosecution of crime by informa- 
tion tried by court as due process of law under Fourteenth Amend- 
ment; City of Indianapolis v. Holt, 155 Ind. 235, 57 N. E. d70, up- 
holding Ind. Acts 1895, pp. 273, 384, §S 59, 74, authorizing city 
boards of works to fix grades of streets and to hear remonstrances; 
Territory v. Bank of Albuquerque, 10 N. Mex. 305, 65 Pac. 177, up- 
hdding action of New Mexico board of equalization on ground that 
date of meeting gave notice to taxpayers; Erickson v. Cass Co., 11 N. 
Dat 498, 92 N. W. 843, upholding chapter 21, PoL Code N. Dak., 
i 1444, providing for hearing for landowners before drainage assess- 
ments became final. 

Distinguished in dissenting opinion in French v. Barber Asphalt 
Paying Co., 181 U. S. 357, 358, 45 L. 894, 895, 21 iSupi Ct. 637, 
majority upholding legislative authorization of apportioning cost of 
street paving according to frontage of lots without preliminary 
bearing on benefits. 

Syl. 4 (IX, 209). Delinquent's property salable after notice. 

Approved in Johnson v. Hunter, 127 Fed. 224, upholding Acts 
Ark. 1895, p. 88, No. 71, authorizing sale of nonresident's land for 
onpaid taxes on four weeks' published notice; Bigger v. Ryker, 62 
Kan. 486, 63 Pac. 742, upholding chapter 162, Kan. Laws 1891, 
regulating delinquent tax sales. 

Syl. 5 (IX, 209). Presence of tax-payer in court not necessary. 

Approved in Oskamp v. Lewis, 103 Fed. 908, upholding under 
Rev. Stat. Ohio, § 5848, assessment of property without notice to 
owner; Appleton v. City of Newton, 178 Mass. 282, 59 N. E. 649, up- 
holding Mass. Stat. 1872, chap. 344, authorizing municipal acqui- 
sition of land for water-works requiring filing of statement in reg- 
istry of deeds. 

SyL 7 (IX, 209). Injunction to determine validity — " Due 
process." 

Approved in King v. Portland, 184 U. S. 70, 46 L. 436, 22 Sup. Ct. 
293, upholding assessments for stieet improvements under Oregon 
eliarter giving hearing as to benefits and opportunity to contest; 
King V. Portland, 38 Or. 417, 63 Pac. 5, upholding Or. Sess. Laws, 
p. 151, S 128, providing for ten days' publication of council resolu- 
tions for street improvement and for filing of protests. 



96 U. S. 43-80 Notes on U. S. Reports. 

95 U. S. 43-48. 24 L. 336, PRATT v. RAILWAY CO. 

SyL 2 (IX, 210). Carrier's liability commences when goods re- 
ceived. 

Approved In Washburn Crosby Co. v. Boston, etc., Albany R. R., 
180 Mass. 256, 62 N. B. 591, holding delivery of goods on company's 
wharf and notifying second carrier frees first carrier where bill 
of lading so provides. 

Distinguished in Texas & P. R. R. Co. v. Callender, 183 U. 8. 
642, 46 L. 366, 22 Sup. Ct 261, holding unloading cotton on com- 
pany's pier and notifying second carrier not delivery where first 
carrier retains control. 

95 U. S. 48-58, 24 L. 339, HATCH v. CODDINGTON. 

Syl. 3 (IX, 211). Notice necessary to terminate agency. 

Approved in Alger v. Keith, 105 Fed. 112, 114, holding agency not 
terminated by principals issuing to agent title title bond when 
agent as agent negotiated sale to third party without notice of 
bond. 

95 U. S. 68. Not cited. 

95 U. S. 68-78, 24 L. 373, EX PARTE EASTON. 

Syl. 2 (IX, 213). Prohibition in admiralty without jurisdiction. 

Distinguished in Ex parte Jonis, 191 U. S. 102, 24 Sup. Ct 27, 
refusing prohibition against Choctaw Citizenship Court proceed- 
ing under 32 •Stat, at Large, 641, chap. 1362, where court had ren- 
dered judgment. 

Syl. 5 (IX, 813). Canal-boat wharfage maritime contract 
Distinguished in The Davidson, 122 Fed. 1006, denying wharfage 
where defendant's ship discharging at adjoining wharf overlapped 
libelant's wharf; The C. W. Moore, 107 Fed. 957, holding no implied 
maritime lien on vessel for wharfage privileges where charterer 
resides in port and is required to pay charges. 

95 U. S. 78-80. Not cited. 

95 U. S. 80-89. 24 L. 377, PACKET CO. v. KEOKUK. 

Syl. 4 (IX, 216). Severable constitutional portions of statutes 
upheld. 

Approved in The State v. Siley, 65 Kan. 248, 69 Pac. 202, 204, 
holding anti-trust law of 1897, preventing anti-competitive agree- 
ments, applies only to persons reasonably contemplated by legis- 
lature and can be questioned by tbem only; State v. Montgomery, 
94 Me. 199, 47 Atl. 166, holding invalid in toto section 1, chapter 298, 
Me. Laws 1899, invalid part discriminating against aliens not being 
severable; Ballard v. Oil Co., 81 Miss. 577, 95 Am. St Rep. 495, 
34 So. 555, holding unconstitutional Miss. Acts 1808, § 1, fixing uni- 
form liability for all corporations regardless of nature of business; 



63 Notes on U. S. Reports. 96 17. S. 90-98 

Green t. Owen, 125 N. C. 222, 34 S. E. 427, upholding appointment 
of members of lK>ard8 of education by new board invested with 
powers of old board; Portland y. Montgomery, 38 Or. 224, 62 Pac. 
75S, upholding under 26 Stat 454, Oregon ordinance restraining 
construction of wharves beyond line within limit set by secretary of 
war; City of Newport v. Horton, 22 R. I. 200, 47 Atl. 312, uphc^ding 
Pub. Laws R. I., chap. 804, authorizing appointment of chief of 
police, such being severable from unconstitutional parts. 

S7I. 3 (IX, 215). Municipality may charge tonnage wharfage. 

Approved in iSt. Louis v. Consolidated Coal Co., 158 Ma 347, 59 
8. W. 104, holding coasting vessels under Rev. Stat U. S., | 4321, 
not subject to certain wharf tax except as compensation for use. 

95 U. S. 90-98, 24 L. 341, GOOD v. MARTIN. 
Syl. 2 (IX, 217). Anomalous indorser of note held promisor. 

Approved in Dominion Nat. Banlc v. Olympia Cotton Mills, 128 
Fed. 182, refusing to strlise out as frivolous defense in action against 
maker and guarantors that one of guarantors is citizen of another 
State; Scanland ▼. Porter, 64 Ark. 473» 42 S. W. 808, holding 
anomalous indorser of certificate of deposit is original promisor. 
See 72 Am. St Rep. 684, note. 

Distinguished in Lamoille Co. Nat Banli ▼. Stevens' Bst, 107 Fed. 
247, holding partner indorsing note payable to partnership does not 
become liable as new maker; Johnson v. TuUy, 2 Ariz. 218, 12 Pac. 
66, holding payee writing name across back in blank becomes in- 
dorser on and not joint maker of note. 

Syl. 4 (IX, 217). Subsequent blank indorsement as guaranty. 

Distinguished in Lydon Sav. Bank v. International Co., 75 Vt 232, 
54 Atl. 193, holding party not before party to note signs on back 
in blank is In Vermont prima facie maker, but may explain signa- 
ture by parol. 

Syl. 8 (IX, 219). Indorser for maker's credit Joint-maker. 

Approved In Court Valhalla No. 16, F. O. A. v. Olson, 14 Colo. 
App. 247, 248, 69 Pac. 884, holding defendant anomalous Indorser 
as Joint maker, though Indorsement alleged to be induced by f raud- 
uleat representations that defendant was liable on bond. See 72 
Am. St Rep. 676, note. 

Distinguished in Garrett v. Reeves, 126 N. C. 636, 34 S. E. 688, 
holding under N. C. Rev. Code, chap. 13, S 10, payment by maker 
of note arrests statute as to Indorser In blank. 

SyL 11 (IX, 220). Surrounding facts admissible to construe con- 
tract 

Approved in Young v. Sebon, 63 W. Va. 130, 44 S. E. 137, holding 
I>arol evidence admissible to show relation of plaintiff to second 
Ifldorser of nonnegotiable note. 



95 U. S. 99-103 Notes on U. S. Reports. (J4 

S7I. 16 (IX, 220). Charging indorser as guarantor — Considera- 
tion. 

Distinguished in Greer v. Richards, 3 Ariz. 231, 233, 32 Pac. 268, 
holding under Comp. Laws 1877, §§ 2547. 2555, following Federal 
practice, counsel fees not recoverable as damages in suit on Arizona 
injunction bond. 

Syl. 17 (IX, 220). Territorial courts not United •States courts. 

Approved in Downes v. Bidwell, 182 U. S. 267, 45 L. 1099, 21 Sup. 
Ct. 779, holding territory of Porto Rico not part of United States 
within the revenue clauses of Constitution, as article 1, section 8. 

Syl. 18 (IX, 220). Federal court rules inapplicable in Territories. 

Approved in Corbus v. Leonhardt, 114 Fed. 12, holding Rev. Stat. 
U. S., § 858, excluding adverse testimony of both parties in suits 
by or against administrators, inapplicable to territorial courts of 
Alaska. 

95 U. S. 9^-108, 24 L. 381, BUFFINGTON v. HARVEY. 
Syl. 2 (IX, 221). Procedural questions only open on review. 

Approved In Hill v. Phelps, 101 Fed. (^2, refusing bill of review 
after satisfaction of decree where bill sought on ground that plain: 
tifT had another Judgment not set up in bill. 

Distinguished in Osborne v. San Diego Co., 178 U. S. 32, 44 L. 
966, 20 Sup. Ct 864, holding bill of review will lie for errors in 
decree apparent on face of record. 

Syl. 3 (IX, 221). Decision of fact conclusive on review. 

Approved in dissenting opinion in Hendryx v. Perkins, 114 Fed. 
823, holding decree on bill to impeach prior bill for fraud final and 
appealable. 

Syl. 8 (IX, 222). Asslg^nee need not Join bankrupt transferrer. 

Approved in Cox v. Wall, 99 Fed. 549, holding bankrupt not a 
necessary party to suit in equity by trustee to avoid alleged fraudu- 
lent transfer by bankrupt. 

Syl. 10 (IX, 223). Bills of review In nature original. 

Approved in Reynolds v. Florida, etc., Ry., 42 Fla. 455, 28 8a 
868, reversing decree on bill of review filed on leave of court, and 
stating newly discovered evidence, which was material and not 
discoverable before; Blair v. Ritchie, 73 Vt. 114, 50 Atl. 809, denying 
application to recommit report of master on grounds of new evi- 
dence. 

(IX, 221). Miscellaneous. 

Distinguished in Sweeney v. Hanley, 126 Fed. 99, holding tem- 
porary injunction discontinued where final decree entered grants 
no continuance. 



% Notes on U. S. Reports. 95 U. S. 104-143 

95 U. S. lOi-llT. 24 L. 352. NEW JERSEY ▼. YARD. 

SyL 4 (IX, 223). Statutes may be contracts within Constitution. 

Approved in Mercantile, etc., Deposit Co. t. Collins Paris R. R., 

101 Feci. 350, holding grant of franchise by city to railway com- 
pany accepted by latter constitutes contract which city cannot im* 
pair; Mercantile, etc., Deposit Co. y. Collins Park R. R., 99 Fed. 
817, holding under Ga. Const., art. 3, S 7, par. 20. prohibiting State 
aathorization of street railway without city's permission, city's 
franchise a contract of State. 

Distinguished in Deposit Bank of Owensboro ▼. Daviess Co., etc., 

102 Ky. 201, 39 S. W. 1037, holding under act February 14, 1856, 
making statutes amendable, bank's acceptance of act 1886 not a 
contract which prevents amendment; Cooper Hospital v. Camden, 
68 N. J. L. 695, 54 Atl. 421, holding where no acceptance of charter 
exempting from taxation and no payment of consideration shown, 
no contract binding on State. 

Syl. 6 (IX, 224). Tax exemption statutes must be clear. 

Approved in Deposit Bank of Owensboro v. Daviess Co., etc., 102 
Ky. 202, 39 S. W. 1038, holding where legislature by act February 
14, 1856, made statutes amendable, all subsequent statutes amend- 
able unless plainly specified therein. 

96 U. S. 117-143, 24 L. 395, INSURANCE CO. v. BOON. 
Syl. 8 (IX, 226). Court's power to amend record. 

Approved in In re Welty, 123 Fed. 127, upholding amendment at 
subsequent term of entry of sentence, which erroneously omitted 
statutory requirement of hard labor; Lynah v. United States, 106 
Fed. 122, upholding Circuit Court's right to amend record in term 
after judgment rendered supplying finding of fact previously re- 
quested consistent with the evidence and record; dissenting opinion 
in Hendryx v. Perkins, 114 Fed. 822. majority holding prior decree 
not vacated on bill alleging fraud where material mistake of fact is 
P'ound relied on. 

SyL 15 (IX, 226). Proximate is nearest efllcient cause. 

Approved in The Frey, 106 Fed. 320, holding violence of sea shift- 
ing cargo and clausing leakage, damaging goods, is proximate cause 
of such damage; Myers v. Chicago, etc., Ry., 101 Fed. 919, holding 
ridge at defendant's crossing found safe for ordinary travel not 
proximate cause of injury where plaintiff in runaway was thrown 
out thereby; Mallen v. WaldowskI, 203 111. 90, 67 N. B. 410, up- 
holding instruction leaving to jury whether sawing loose sticks of 
wood held in hand constituted negligence where defense was con- 
tributory negligence; Chicago, etc., R. R. v. Martin, 31 Ind. App. 317, 
65 N. E. 594, applying rule where death resulted from decedent's 
Jumping from runaway cars where speed was not great and jump 
Vol. II— 5 



95 U. S. 144-161 Notes on U. S. Reports. 06 

could have been safely made from other side of car; Missouri, etc^ 
Ry. V. Columbia, 65 Kan. 400, 69 Pac. 341, holding intervening gale 
blowing doors upon track, and not the placing of doors, the proxi- 
mate cause of derailment of engine and decedent's death; Holwer- 
son V. St Louis, etc., Ry. Co., 167 Mo. 230, 57 S. W. 774, holding 
contributory negligence of decedent in walking upon track with- 
out looking the proximate cause of death; Saxton v. Mo. Pac. By., 
98 Mo. App. 501, 72 S. W. 719, holding Injury received in alighting 
from slowly moving train not due to starting as proximate cause, 
but to plaintifTs negligence; Owen v Cook, 9 N. Dak. 139, 81 N. W. 
288, holding prairie fire and not back fire nonnegligently set by 
defendants to counteract it the proximate cause of loss of plaintiff's 
building; Danville, etc., Co. v. Hodnett, 101 Va. 3T0, 43 S. B. 609, 
upholding refusal to instruct in substance that because plaintiff was 
not actually struck or knocked from horse by colliding car, he could 
not recover; dissenting opinion in The Germanic, 124 Fed. 9, ma- 
jority holding under Barter act, 27 Stat. 445, exempting from lia- 
bility for loss due to management of vessel, discharge of cargo by 
stevedores not Included. 

95 U. S. 144-149, 24 L. 420, MOVIUS v. ARTHUR. 

Syl. 1 (IX, 228). Specific provisions govern subsequent general 
provisions. 

Approved in Chew Hing Lung v. Wise, 176 U. S. 160, 44 L. 414, 20 
Sup. Ct. 322, holding special mention of tapioca on free list of tariff 
act 1890, par. 730, prevails over par. 323 taxing "preparations'* 
fit for use as starch; Coles v. Collector, etc., 100 Fed. 445, holding 
anthracite coal dutiable under paragraph 415, tariff act 1897, as con- 
taining under 92 per cent carbon and not exempted under par. 623. 

95 U. S. 149-157. Not cited. 

95 U. S. 167-161, 24 L. 422, BROWN ▼. COUNTY OF BUBNA 
VISTA. 

Syl. 2 (IX, 230). Equity relieves diligent against fraud — Mistake. 

Approved in Travelers' Protective Assn. v. Gilbert, 111 Fed. 274,* 
refusing to set aside bill for fraud where defendant's agent negli- 
gently failed to transmit summons served on them, such being de- 
fendant's negligence; dissenting opinion in Bucki, etc.. Lumber Co. 
T. Atlantic Lumber Co., 116 Fed. 13, majority holding mistake of 
$4,000 by court as to set-off entitle appellors to relief in equity. 

Distinguished in Pittsburg, etc., Ry. v. Keokuk, etc., Ry., 107 
Fed. 786, dismissing bill of review where no proof adduced to show 
appellants put on inquiry into facts nor why facts not discoverable 
earlier. 

Syl. 4 (IX, 230). Laches irrespective of statute bars suit. 

Approved in Hendryx v. Perkins, 114 Fed. 826, holding delay of 
nine years, no excusing facts being alleged, bars a bill to vacate bill 



67 Notes on U. S. Reports. 95 D. S. 161-16S 

for fraud or bill of review; Guaranty, etc., Co. ▼. Delta, etc., Co., 
104 Fed. 16, holding suit to quiet title where cpnyeyances claimed 
Tinder executed nine to twenty-ifive years previously, barred by 
laches, regardless of statute; Loomls v. Rosenthal, 34 Or. 600, 57 
Pac 00, holding heirs barred as against purchaser at administra- 
tion occupying and improving land by delay of fifteen years after 
majority of youngest to assert right; Chezum v. McBride, 21 Wash. 
663, 58 Pac. 1060, holding grantor barred by twenty-five years* delay 
from denying title to grantee who paid taxes and did other acts of 
ownership during that period; McCann and Others ▼. Welch and 
Another, 106 Wis. 151, 81 N. W. 909, dismissing suit to cancel deed 
where plaintifT allowed the statutory period for adverse possession 
tonm. 

95 U. S. 161-168, 24 L. 403, CONTINENTAL IMPROVEMENT CO. 
V. STEAD. 

SyL 1 (IX, 232). Obligations of railroads and travelers mutual. 

Approved in Railway Co. v. Conlon, 9 Kan. App. 120, 67 Pac. 106, 
holding reciprocal duties of care of railway and farmer whose cows 
were killed by train running through his land same as of traveler 
at crossing; Ramsay v. C. K. Eddy, etc., Sons, 123 Mich. 162, 82 N. W. 
129, reversing judgment for brakeman injured by being crushed 
between moving car and defendant's lumber on ground of contribu- 
tory negligence; Edwards v. Atlantic Coast Line R. Co., 129 N. C. 
83, 39 S. E. 732, holding charge erroneous calling faster rate of 
speed than prescribed, negligence, if injury would not have occurred 
at prescribed rate; Wilson v. Citizens' St. Ry. Co., 105 Tenn. 84, 58 
S. W. 337, holding failure of one unfamiliar with location of defend- 
ant's tracks to stop, look, and listen, not negligence per se; Carter 
T. Central Vermont R. R. Co., 72 Vt. 200, 47 Atl. 800, refusing re- 
covery for injury caused by train where plaintiff negligently drove 
on track. 

SyL 2 (IX, 233). Wagon must wait, train must warn. 

Approved in Northern Pac. Ry. Co. v. Spike, 121 Fed. 46, holding 
as matter of law deceased not shown negligent in driving upon track 
on dark night where train gave no signal, and adverse wind 
drowned sound; Louisville & Nashville R. R. v. Clark's Admr., 105 
Ky. 581, 49 S. W. 325, sustaining refusal to instruct that if plaintiff 
saw or heard or by due care should have done so, going on track 
vas negligence; Day v. Boston, etc., R. R. Co., 97 Me. 534, 55 Atl. 
422, holding plaintiff barred where evidence showed he saw train, 
but overestimated its distance; Gahagan v. Railroad, 70 N. H. 443, 
447, 50 Atl. 147, holding plaintiff precluded by negligence In walking 
unguardedly upon track where train approached slowly and 
whistled; New York, etc., R. R. v. Kistler, 66 Ohio St. 335, 64 N. E. 
133, holding since individual can stop more easily, train has right of 
way when meeting at crossing. 



95 U. S. ie8-186 Notes on U. S. Keporto. 08 

Syl. 4 (IX, 234). Trayelers trossing must exercise ordinary dili- 
gence. 

Approved In Hemingway ▼. Illinois Cent. B. R., 114 Fed. 847, 
holding where railroad Is negligent by exceeding lawful speed on 
dangerous crossing and evidence of deceased's negligence conflicts 
question is for jury; Hemingway ▼. Illinois Cent. B. R., 114 Fed. 
846, holding burden of proof as to alleged contributory negligence 
by Federal rule rests upon defendant; New York, etc., R. R. ▼. 
Moore, 106 Fed. 728, holding where train hid by embankment plain- 
tiff used reasonable care in driving upon track in walk, looking 
and listening for train; Gilbert ▼. Erie R. R., 97 Fed. 750, holding 
plaintiff's decedent negligent in driving upon track in covered 
buggy, he having seen approaching train when 135 feet from track; 
Cogdell V. Wilmington, etc., R. R., 130 N. C. 328, 41 S. E. 546, hold- 
ing under N. C Acts 1887, chap. 33, burden is on carrier 
in action for death of employee to show contributory negligence; 
Peck V. Oregon, etc., R. R., 25 Utah, 36, 69 Pac. 157, holding where 
track obscured by trees, looking and listening while driving slowly 
Is sufficient care exercised without stopping. 

Syl. 6 (IX, 235). Judge chooses own words in charge. 

Approved in Salem Iron Co. v. Commonwealth Iron Co., 119 Fed. 
598, upholding instructions substantially though not specifically 
presenting every point submitted by counsel. 

95 U. S. 168-170, 24 L. 423, RAILROAD v. HECHT. 

Syl. 3 (IX, 235). Allowing legislative change of remedies. 

Approved in Galusha v. Wendt, 114 Iowa, 603, 87 N. W. 514, op- 
holding Iowa Code, § 137c, providing for assessment of property 
omitted from tax list In past years, confining penalty imposed to 
period subsequent to act; Oshkosh Water-Works Co. v* City of 
Oshkosh, 109 Wis. 218, 85 N. W. 380, upholding under Const, art 
1, § 12, amended Wisconsin charter requiring service on clerk in- 
stead of mayor in suits on claims against city. 

95 U. S. 171-183. Not cited. 

95 U. S. 183-186, 24 L. 427, INSURANCE CO. v. PECHNER. 

Syl. 2 (IX, 238). Petition for removal must show right 

Approved in Dalton v. Milwaukee Mechanic's Ins. Co., 118 Fed. 
877, 881, holding allegation by corporation as " citizen and resident ** 
of State not sufficient proof of incorporation under State laws; 
United States Mortg. Co. v. McClure, 42 Or. 196, 70 Pac. 544, hold- 
ing since in foreclosure suit necessary parties include all against 
whom plaintiff seeks personal Judgment, controversy between plain- 
tiff and landowner not separable to secure removal. 



m Notes on U. S. Reports. 85 U. & 186-210 

95 U. S. 186, 187, 24 L. 428, AMORY ▼. AMOBY. 

Syl. 2 (IX, 239). Citizenship must appear in petition. 

Approved in Redfleld y. Baltimore & O. R. R. Co., 124 Fed. 930, 
refusing removal of suit by stockholder of domestic against foreign 
corporation, also holding stock in domestic corporation, latter being 
necessary party preventing diversity; Fife v. Whittell, 102 Fed. 530, 
holding to authorize removal under 25 Stat., p. 433, petition must 
allege and show party a nonresident of State where suit brought; 
Green v. Heaston, Recr., 154 Ind. 129, 56 N. E. 88, holding insufficient 
petition for removal stating diverse " residence *' at time of suit 
brought. 

SyL 3 (IX, 240). State retains Jurisdiction until petition filed. 

Approved in Debnam v. Southern Bell Tel. Co., 126 N. G. 837, 36 
S. £. 271, upholding refusal to grant removal on petition of adopted 
North Carolina corporation of suit by citizen of North Carolina 
presenting no Federal question; di&senting oplnl<m in Calvert v. 
Railway Co., 64 S. C. 149, 41 S. E. 966, majority holding corporation 
incorporated elsewhere though complying with act March 19, 1896, 
nonresident for Federal Jurisdiction. 

95 U. S. 188-190, 24 L. 493, KERR v. CLAMPITT. 
Syl 4 (IX, 241). Bill of exceptions presents all errors. 

Approved In dissenting opinion in J. B. M'Farlan Carriage Co. 
T. Sol^as, 106 Fed. 153, majority holding Judgment against trus- 
tee of bankrupt to recover property conclusive and not in confilct 
with Jurisdiction of Bankruptcy Court. 

85 U. S. 191-199, 24 L. 468, FABBRI v. MURPHY. 
SyL 2 (IX, 241). Goods in bonded warehouse dutiable. 

Approved In De Pass v. Bidwell, 124 Fed. G20, upholdhig 81 Stat. 
77, imposing duty on all goods from Porto Rico allowed to enter 
and remain in bonded warehouse. 

95 U. S. 200-204, 24 L. 41H, PRESTON v. PRESTON. 

Syl. 1 (IX, 242). Specific performance of uncertain contract 

Approved in Knight v. Alexander, 42 Or. 524, 71 Pac. 658, hold- 
ing unenforceable for indefiniteness, contract to convey 100 acres 
"of the west end" of the land; Ensminger v. Peterson, 53 W. Va. 
332, 44 S. E. 221, 22:^, holding bad for indefiniteness, contract giving 
right to take any land ow::ed by Fox, making own location. - 

03 U. S. 204-210, 24 L. 471, BATES v. CLARK. 

Syl. 6 (IX, 243). Damage for seizure difference in value. 

Approved in dissenting opinion in L. Bucki & Son Lumber Co. 
▼. Fidelity, etc., Co., 109 Fed. 410, majority allowing under Fla. 



95 U. S. 210-242 Notes on U. S. Reports. 70 

Rev. Stat. 1892, § 1646, recovery of reasonable attorney's fees in 
action on attachment bond. 

95 U. S. 210-214, 24 L. 409, RADICH v. HUTCHINS. 

SyL 2 (IX, 244). Duress, actual unrellevable exercise of power. 

Approved in Chesebrough v. United States, 192 U. S. 260, 24 Sup. 
Gt. 264, holding written application to commissioner of internal 
revenue to refund sum expended in purchasing revenue stamps not 
equivalent to appeal, within Rev. Stat, S§ 3226, 3228; Pembrolce v. 
Hays, 114 Iowa, 578, 87 N. W. 492, upholding admission of plain- 
tiff's evidence as to consideration of note where duress charged; 
New Orleans, etc., R. R. Co. v. Louisiana Const., etc., Co., 100 La. 
22, 94 Am. St Rep. 395, 33 So. 55, holding wharfage dues paid under 
protest where opportunity to test validity existed not recoverable 
on ground of duress; Shuck v. Interstate, etc., Assn., 63 S. O. 142, 
41 S. B. 31, holding merely threatening mortgagor with foreclosure 
on nonpayment of claim not duress; Hoexter v. Judson, 21 Wash. 
652, 59 Pac. 500, holding county treasurer not liable to refund taxes 
on ground of duress unless he caused duress, merely naming him 
party plaintiff with commissioner not enough. 

95 U. S. 214-221, 24 L. 384, ROEMER t. SIMON. 

SyL 2 (IX, 245). Party showing patent presumed first Inventor. 

Approved in Fay v. Mason, 120 Fed. 572, holding in suit for in- 
fringement, plaintiff's patent prima facie original unless resppndent 
shifts burden by notice required by Rev. Stat, § 4920. 

SyL 4 (IX, 245). Foreign use does not supersede patent here. 

Distinguished in Welsbach Light Co. v. American, etc., Co., 98 
Fed. 615, holding under Rev. Stat U. S., § 4886, to defeat patent 
of article known and used prior to invention, such notice must 
•exist before patentee's actual invention. 

95 U. S. 221-227. 25 L. 355, EX PARTE RAILROAD. 

Syl. 3 (IX, 246). Decree on cross-bill not final. 

Approved in Bowker v. United States, 186 U. S. 138, 46 L. 1092, 
22 Sup. Ct 804, nolding decree of District Court dismissing cross- 
libel in admiralty in collision suit not final Judgment, not reviewable 
under 26 Stat at Large, 826, chap. 517. 

95 U. S. 227-232. Not cited. 

95 U. S. 232-242, 24 L. 433, INSURANCE CO. ▼. RODEL. 

Syl. 7 (IX, 248). Suicide while insane does not avoid policy. 

See 84 Am. St Rep. 545, 547, note. 

Distinguished in Seitzinger v. Modern Woodmen, 204 HI. 61, 68 
N. E. 479, holding certificate of Woodmen refusing benefits to 
members dying " by own hand," sane or insane, within three years» 



71 Notes on U. S. Reports. 95 U. S. 242-266 

included act of wholly insane; Latimer y. Sovereign Camp W. O. 
W., 62 S. G. 150, 40 S. E. 156, holding beneficiary cannot recover 
where insured could intend to take own life and could understand 
act under policy excepting risks of self-destruction, sane or insane; 
dissenting opinion in Knights Templars, etc., Co. v. Jarman, 104 
Fed. 646, majority holding words "committed suicide" in Rev. 
Stat Mo. 1889, § 5855, excluding defense of self-destruction, mean 
all cases of suicide; dissenting opinion in Latimer v. Sovereign 
Camp W. O. W., 62 S. C. 161, 40 S. E. 160, majority holding recovery 
on policy excepting risks of self-destruction sane or insane barred 
where insured able to form intent to suicide and to understand act 

95 U. S. 242-251, 24 L. 473, INSURANCE CO. V. HAVEN. 

Syl. 5 (IX, 249). Unless ownership requested, insurable interest 
enough. 

Approved in McClelland et al. v. Greenwich Ins. Co., 107 La« 
126, 31 So. 692, holding policy requiring no particular statement 
of interest not invalidated by concealment of tax lien and vendor's 
lien on property. 

d5 U. S. 252-259, 24 L. 444, MILNER v. MEEK. 
Syl. 3 (IX, 250). Appeal within term requires no citation. 

Approved in M'Nulta v. West Chicago Park Comrs., 99 Fed. 829, 
holding on appeal allowed in open court from decree against bank 
and receiver, no citation necessary to bring bank before upper court 

Distinguished in In re Michie, 116 Fed. 7 53,. holding Bankruptcy 
Court without Jurisdiction over adverse claims of trustee and 
transferee of bankrupt and latter's contest of trustee's petition no 
consent to Jurisdiction; Kidder v. Fidelity, etc., Co., 105 Fed. 823, 
holding where one of several intervenors in equity suit appeals after 
the term he must cite and serve notice on all parties of record inter- 
ested; In re Baudouine, 101 Fed. 577, holding stranger to bankruptcy 
proceedings claiming adversely assets of estate is entitled to plenary 
suit and not subject to 'summary proceedings. 

Syl. 4 (IX, 250). Single lien creditors' right to appeal. 

Approved in In re Steuer, 104 Fed. 978, 979, holding where trustee 
in bankruptcy files petition in nature of bill in equity setting aside 
preference giving defendant due protection, defendant contesting 
cannot object thereto. 

95 U. S. 259-266, 24 L. 495, COLORADO CO. v. COMMISSIONERS. 

Syl. 1 (IX, 250). United States title not taxable. 

Approved in Steams v. Minnesota ex rel. Marr, 179 U. S. 251, 46 
L. 177, 21 Sup. Ct. 84, upholding contracts between State of Minne- 
sota as trustee of public land and railways under S. P. Laws 1865, 
exempting from taxes since State may exempt public lands; United 



95 U. S. 266-279 Notes on U. S. Reports. 72 

States ▼. Milwaukee, 100 Fed. 829, holditig land not subject to 
taxation where title remains in United States to secure price, al- 
tliougli government pays rent for use; Jopling v. Chachere et aL, 
107 La. 529, 32 So. 245, holding confirmation by Congress of recog- 
nition of land commissioners of settlement of land operated as 
government grant maldng land taxable before patent issued; Page 
V. Pierce County, 25 Wash. 10, 61 Pac. 803, holding lands of Puyallup 
reservation sold under 27 Stat 612, retaining . vendor's lien for 
payment not taxable to vendee. 

95 U. S. 266-^268. Not cited. 

95 U. S. 269-274, 24 L. 410, INSURANCE CO. v. DUTCHER. 

SyL 6 (IX, 251). Full receipt for premium paid by notes. 

Approved in Hogue v. Northwestern Mut Life Ins. Co., 114 Fed. 
782, holding policy for $10,000, premiums payable in annual instal- 
ment8, cash and notes, to be reduced by default, a valid policy to 
extent of payments made, less notes; Tate v. Mutual Benefit Life 
Ins. Co., 131 N. C. 391, 42 S. E. 893, holding amount of 30 per cent, 
indebtedness certificate in payment of policy should be deducted 
from amount of accumulated profits before any applied in extend- 
ing policy. 

95 U. S. 274-279, 24 L. 344, KEYSTONE BRIDGE CO. T. PHCENIX 
IRON CO. 

Syl. 2 (IX, 251). Patentee bound by explicit claims. 

Approved in United States Pig Wood S., etc, L. B. Co. v. B. F. 
Sturtevant Co., 122 Fed. 472, holding anticipation of patent not pre- 
vented by omitting possible use of article beyond utility of in- 
fringed since claims govern; Lamb Knit Goods Co. v. Lamb Glove 
& Mitten Co., 120 Fed. 269, holding patent limited by claims con- 
strued with specifications, as where blanks in glove patent had to 
be knitted, leaving out word '* knitted" immaterial; Westinghouse 
Air Brake Co. v. New York Ah* Brake Co., 119 Fed. 884, limiting 
WeRtinghouse & Moore patent 401,910, for equalizing pressure In air 
brakes, claims 4 and 8, holding not infringed by patent doing same 
work differently; Durfee v. Bawo, 118 Fed. 858, holding American 
Invention limited by claims, though broad enough to include pre- 
vious patent granted in England to same inventor; Dowagiac Mfg. 
Co. V. Brennan, 118 Fed. 147, holding mere production of pressure 
by spring not patentable, but combination of old elements in new 
way not Infringement on prior patent; Schrieber, etc., Mfg. Co. t. 
Adams Co., 117 Fed. 833, 834, holding Far well patent 493,548, for 
adjustable stove damper, limited by claims to damper with a 
grooved rod. not infringed by round rod; Henry Hnber Co. v. J. L. 
Mott Iron Works, 113 Fed. 004, holding claims of Beaumont patent 



73 Notes on U. S. Reports. 95 U. S. 271^-294 

555,033, improying hot- water fixtnres, cannot be construed to cover 
all devices wherein steam and wat^^r are turned on simultaneously ; 
Safety Oiler Co. ▼. Scovllle Mfg. Co.. 110 Fed. 205, holding limita- ' 
tion inserted in application by amendment after rejection by patent 
office limits patent regardless of requirements of prior art; Moore y. 
Eggers, 107 Fed. 496, limiting Moore patent for Improvement in 
hoisting apparatus by prior art and language of claim 1, specifying 
car** with open base;" Bracewell v. Passaic Print Works, 107 Fed. 
480, holding patentee after claim of process met by prior art, re- 
duced to formula, cannot limit claim to formula unless claim be 
specific in excluding process in interpretation; Peifer v. Brown, 
106 Fed. 940, holding Peifer patent 411,22G, for improvement in 
metallurgical furnaces, confined by its terms to particular construc- 
tion shown, which was not infringed by Howatson British patent; 
Stolces Bros. Mfg. Co. ▼. Heller, 101 Fed. 267, holding Stol^es patents 
for improving rasp-cutting machines confined to specific claims, 
and infringements determined by such claims; Bowers v. Pacific 
Ooast Dredging, etc., Co., 99 Fed. 747, holding Parker patent for 
swinging dredgeboat from side to side equivalent of Bowers patent 
preyiously granted, as claims embodying latter were construed. 

Distinguished in Kinloch Tel. Co. v. Western El. Co., 113 Fed. 
065, holding patent for new machine, though limited by claims, in- 
cludes every mechanical equivalent; Metallic Extraction Co. v. 
Brown, 104 Fed. 354, holding claims specifying position of roasting 
chamber in Brown patent 471,264, not essential feature of inven- 
tion, where construction would deprive inventor of benefit of 
in?entIon. 

05 U. S. 279-285, 24 L. 431, RAILWAY v. STEWART. 

SyL 3 (IX, 253). Appellant responsible for record. 

Approved in Williams Bros. v. Savage, 120 Fed. 498, dismissing 
Appeal from bankrupt's discharge where record certified by clerk 
^d not show filing of record or transcript as required; Teller v. 
United States, 111 Fed. 120, holding where appellant's prcecipe 
omits opinion of trial court, clerk must supply it under rule 14, 31 
C. G. A. 125, and appellant cannot strike from record. 

% U. S. 285-28a Not cited. 

fi5 U. S. 289-294, 24 L. 496, BECKWITH v. TALBOT. 

Syl. 2 (IX, 255). Collateral papers admitted under Statute of 
I^uds. 

Approved in Stern v. Deutch, 9 Kan. App. 221, 59 Pac. 688, ad- 
mitting parol evidence to explain or supplement statements in 
memorandum of guaranty; Peycke v. Ahrens, 98 Mo. App. 459, 72 

6 W. l52, holding several telegrams and letters combined to show 
^ntract for sale of cabbage to satisfy Statute of Frauds. 



95 U. S. 294-316 Notes on U. S. Reports. 74 

95 U. 8. 294-296, 24 L. 436, PEARSON v. YEWDALL. 
Syl. 2 (IX, 255). Amendment of writ of error discretionary. 

Approved in Huebschmann y. Von Cotzhausen, 107 Wis. 73, 82 
N. W. 723, holding under Rev. Stat. Wis., § 3075, where tenant 
in ejectment suit not Joined in writ of error, defect of parties waived 
by failure to notice. 

Syl. 4 (IX, 256). Opportunity to test Judicially, due process. 

Approved in Fitzpatrick v. Graham, 119 Fed. 354, holding since 
lower court has no power to amend writ of error by striking names 
therefrom, all parties having Joined appellate court has Jurisdiction; 
Oskamp v. Lewis, 103 Fed. 909, holding Rev. Stat Ohio, 8 5848, 
giving owner right to test validity of assess&ient, provided due 
process of law where assessments made without notifying owner. 

95 U. S. 297-303, 24 L. 477, TRANSPORTATION LINE T. HOPE. 

Syl. 2 (IX, 256). Towboat captain's opinion as evidence. 

Approved in Texas & Pacific R. R. Co. v. Watson, 190 U. S. 291, 
23 Sup. Ct 683, 47 L. 1059, admitting expert testimony as to 
whether locomotive setting five to eight fires in four and one-half 
miles was properly operated and constructed; Hutchinson Cooper- 
age Co. V. Snider, 107 Fed. 634, holding admissible opinions of ex- 
pert that machine like model in evidence was impracticable and 
dangerous; Finn v. Cassidy, 165 N. Y. 596, 59 N. B. 314, holding 
admissible opinion of civil engineer based on hypothetical question 
touching method of excavating for chimney during which plaintiff 
was injured. 

Syl. 3 (IX, 257). Tug must use care toward tow. 

Approved in In re Moran, 120 Fed. 563, holding tug liable for 
loss of tow where tug left tow a distance of forty miles and latter 
was wrecked during tug's absence. 

Syl. 6 (IX, 256). When charge on facts not error. 

Approved in Kerr v. Modem Woodmen of America, 117 Fed. 596, 
upholding Federal court's charge on facts where Jury also Instructed 
to find solely on facts, not being bound by his opinion. 

95 U. S. 303-316, 24 L. 450, OULD v. WASHINGTON HOSPITAL 
FOR FOUNDLINGS. 

Syl. 2 (IX, 258). Charitable use including hospitals. 

Approved in In re Stewart's Estate, 26 Wash. 36, 66 Pac 149, 
holding valid as charitable trust devise to specified trustees in trust 
for proposed Congregational Academy; State v. (Commissioners of 
Laramie County, 8 Wyo. 130, 55 Pac. 457, holding State penitentianc 
charitable Institution within Wyo. Const., art 15, § 4, limiting taxa- 
tion. 



T5 Notes on U. S. Reports. 95 U. S. 316-319 

Distinguished in St. Clement ▼. L*lnstltut Jacques Oartier, 95 Me. 
496, 50 Atl. 377, holding corporations organized under Me. Rev. Stat., 
chap. 55, 8 5, for mutual insurance, not charitable organizations 
exempt from suit by members. 

87L 8 (IX, 258). Hospital for foundlings designating donee. 

Approved in St James Orphan Asylum v. Shelby, 60 Nebr. 810, 
84 N. W. 278, sustaining trust created by will to apply lands and 
proceeds therefrom to some charity according to trustee*s Judgment. 

SyL 6 (IX, 259). Trust for nonexistent eleemosynary corporation 
yaUd. 

Approved in Brigham v. Hospital, 126 Fed. 797, upholding devise 
of residue to corporation thereafter to be formed to administer a 
charity where no gift to individual preceded it; John t. Smith, 102 
Fed. 222, upholding bequest of property in trust to establish and 
maintain free schools in St. John's, property to be sold at end of 
fifteen years; Rolfe, etc.. Asylum v. Lefebre, 69 N. H. 241, 45 Atl. 
1068, holding devise of realty in trust for asylum, trustees not to 
alien for ninety-nine years, not bad as violating rule against per- 
petuities. 

Syl. 9 (IX, 260). Charitable uses liberally construed in equity. 

Approved in John v. Smith, 102 Fed. 220, upholding bequest of 
property to executors to be sold in fifteen years and to be used 
in establishment and maintenance of free schools; Clayton v. Hal- 
lett, 30 Colo. 249, 70 Pac. 435, upholding residuary devise to city 
of Denver in trust to establish orphan college where subsequent 
act of legislature authorized acceptance and enforcement of trust; 
dissenting opinion in Troutman v. De Boissiere, 66 Kan. 38, 71 Pac. 
297, majority holding void as a perpetuity conveyance of land to 
trustees in perpetual trust to provide home and school for children 
of deceased Odd Fellows. 

95 U. S. 316-^19, 24 L. 479, HART v. UNITED STATES. 
SyL 1 (IX, 260). Crovernment not liable for officers' laches. 

Approved in United States v. National Surety Co., 122 Fed. 906, 
holding surety of distiller liable for payment of taxes on spirits 
distilled during term and not relieved by cumulative security of 
warehouse bond; Montgomery Co. v. Cochran, 121 Fed. 26, holding 
sureties on treasurer's bond liable under Ala. Code 1896, 8 3070, for 
loss of county funds checked by treasurer in bank which failed; Pond 
V. United States, 111 Fed. 992, holding internal revenue collector's 
sureties not discharged by failm'e of treasury department to give 
notice of defalcations; Hogue v. State ex rel., 28 Ind. App. 287, 62 
N. E. 657, holding sureties liable on school board treasurer's bond 
where council negligently re-elected latter when a defaulter; Inde- 
pendent School Dist V. Hubbard, 110 Iowa, 64, 81 N. W. 243, holding 



85 U. S. 319-326 Notes on U. S. Reports. 76 

board of school directors not bound to warn surety of re-elected 
treasurer of district of previous dishonesty. 

Distinguished in United States v. Beebe, 180 U. S. 354, 45 L. 570, 
21 Sup. Ct. 375, holding no ratification of unauthorized judgment 
nor any laches In delaying five years to set aside virhere no one In 
authority knew of facts; United States v. National Surety Co., 112 
Fed. 339, holding dlstlUers* " annual bond " under Rev. Stat, i 3200, 
does not bind sureties for payment of taxes under warehouse bond 
not contemplated in annual bond. 

95 U. S. 319-320, 24 L. 357, SHIELDS v. OHIO. 

SyL 1 (IX, 260). Corporation confined within charter powers. 

Approfved In Winn v. Wabash R. R. Co., 118 Fed. 58, 60, holding 
consolidated corporation composed of lines in Ohio, Indiana, Illinois, 
and Missouri under Mo. Rev. Stat. 1899, § 1059, citizens of each 
State. See notes, 89 Am. St. Rep. 614, 651. 

Syl. 2 (IX, 260). Consolidation act makes new company. 

Approved in Minneapolis & St. Louis Ry. Co. v. Gardner, 177 U. 
S. 343, 345, 44 L. 798, 799, 20 Sup. Ct 660, 661, holding new cor- 
poration formed by consolidation under Minn. Spec. Laws 1881, chap. 
113, of several Minnesota railway corporations; New York Surety, 
etc., Co. ▼. Louisville, etc., R. R. Co., 102 Fed. 394, holding railroad 
mortgage covering after acquired property not include property 
acquired by consolidated company which mortgagor subsequently 
entered; Matthews v. Board of Corp. Comrs., 97 Fed. 404, holding 
charter of consolidated railroad corporation formed under N. C. 
Const., art 8, § 1, may be altered without impairing contract Con- 
stitution so providing. 

Syl. 3 (IX, 262). Consolidation subject to power of amendment 

Approved in Yazoo & M. V. R. R. Co. v. Adams. 180 U. S. 20, 
45 L. 406, 21 Sup. Ct. 247, holding corporation exempt from taxation 
loses such exemption by consolidation into new corporation under 
Miss. Const., S 180. 

Syl. 4 (IX, 262). Administration on dissolution of corporation. 

Approved in Stanislaus Co. v. San Joaquin, etc., Co., 192 U. S. 
211, 24 Sup. Ct 245, holding section 3, Cal. Stat 1862, p. 540, em- 
powering water companies to establish rates not subject to reduc- 
tion by supervisors below 18 per cent profit created no contract 

Syl. 5 (IX, 262). Reserved right to amend charter. 

Approved In San Joaquin, etc., Co. v. Stanislaus Co., 113 Fed. 938, 
holding county boards fixing water rates under Cal. Stat. 1885, p. 
95, could not ignore capital invested under Stat. 18G8, p. 540, giving 
companies right to fix rates; Mercantile, etc.. Deposit Co. v. Collins 
rnrk U. R., 99 Fed. 817, holding city cannot impair obligation of 
railway franchise granted under Ga. Const, art 3, § 7, par. 20. 



77 Notes on U. 8. Reports. 95 U. 8. 326^338 

reqolrliig municipal consent; Woodson v. 8tate, 09 Ark. 531, 66 Si 
W. 471, upholding under AtIl. Const, art 12, § 6, Acts 1899, p. 165, 
requiring coal mining c(H*poration to weigh coal before screening; 
Fair Haven, etc., R. R. v. Fair Haven, 75 Conn. 453, 53 Atl. 964, 
upholding Conn. 8pec. Acts 1895, p. 565, requiring street railway to 
pave nine feet of street for every line of traclc; Deposit Bank of 
Owensboro v. Daviess Co., etc., 102 Ky. 212, 39 8. W. 1040, holding 
charters granted subsequent to Ky. Gen. Stat, chap. 68, 8 8, reserv- 
ing power of amendment amendable by State without impairment; 
Lincoln St Ry. Co. v. City of Lincoln, 61 Nebr. 132. 84 N. W. 809, 
holding right of legislature to require street railways to pave streets 
conformable to municipal improvement reasonable use of legislative 
power not impairing contracts; dissenting opinion in Minor v. Brie 
R. R., 171 N. Y. 575, 64 N. B. 457, majority holding corporations 
organized under N. Y. Laws 1892, chap. 688, succeeding to rights 
of old corporation, took subject to mileage-book act. Laws 1895, chap. 
1027. See 89 Am. St Rep. 634, note. 

95 U. S. 320-333. 24 L. 387, INSURANCE CO. v. WOLFE. 

Syl. 1 (IX, 263). Company can waive conditions after breach. 

Approved in ^tna L. I. Co. v. Frierson, 114 Fed. 62, holding in- 
surer may waive defense of excepted risk of accidents in adventur- 
ous Journeys where company knows of such Journey; Ti'avelers' 
Protective Assn. v. Gilbert, 111 Fed. 273, holding since insurer may 
waive defense, no fraud for plaintiff to omit allegation that in- 
sured committed suicide by poison. 

Syl. 2 (IX, 263). Waiver requires authority or ratification. 

Approved In Northern Assur. Ck). v. Grand View Bldg. Assn., 183 
U. 8. 354, 360, 46 L. 232, 234, 22 Sup. Ct 150, 152, holding knowledge 
of agent of double insurance before policy issued no waiver where 
policy stated agent had no authority to waive conditions; Modem 
Woodmen of America v. Tevis, 117 Fed. 373, holding clerk of 
local camp Modern Woodmen of America not authorized to waive 
conditions of policy to bind order; Knarston v. Manhattan Life Ins. 
Co., 140 Cal. 66, 73 Pac. 743, holding parol evidence admissible to 
show waiver of forfeiture for failure to pay premiums and waiver 
binds until repudiated by company. 

Syl. 3 (IX, 263). Insurance companies liable for natural conse- 
quences of acta. 

Distinguished in Ervay v. Fire Assn.. 119 Iowa, 308, 93 N. W. 
202. holding Iowa Code, § 1742, making sworn statement of loss 
condition precedent to recovery not waived where adjuster tele- 
phoned for call next day but /ailed to come. 

Syl. 4 (IX, 204). Signed renewal receipts bind company. 

Approved in Grabbi v. Farmers' Mut. Fire Ins., etc.. 125 N. C. 
397, 34 8. E. 505, holding agent's issuance of policy with knowledge 



95 U. S. 326-333 Notes on U. S. Reports. 78 

of partnership ownership waived provision that assured's interest 
must be properly stated therein. 

SyL 5 (IX, 264). Ck>mpany receiving delinquent premiums waives 
forfeiture. 

Approved in United States Life Ins. Co. v. Lesser, 126 Ala. 583, 
28 So. 651, holding where company sent renewal receipts to agent, 
latter had power to extend premiums payment to bond company 
on policy retimtted to it for renewal. 

Syl. 7 (IX, 264). Agent's knowledge presumed knowledge of 
company. 

Approved in iEtna Life I. Co. v. Frierson, 114 Fed. 63, holding 
acceptance of premium by accident insurance company witii 
knowledge of adventurous trip contemplated by insured waiver of 
defense. 

Syl. 8 (IX, 265). For waiver company must know facts. 

Approved in Murphy v. Royal Ini. Co. of Liverpool, 52 La. Ann. 
790, 27 So. 149, holding company nut bound by waiver of agent of 
compliance with " promissory warranty " clause of policy, where 
terms of policy prevent any but written waiver authorized by 
company; Thompson v. Travelers* Ins. Co., 11 N. Dak. 277, 91 N. W. 
77, holding acceptance of premium by agent without knowledge 
of Insured's fatal illness not a waiver of policy. 

Syl. 9 (IX, 265). Insured claims waiver where forfeiture fraud. 

Approved in Supreme Lodge Knights of Pythias v. Wellenvoss, 
119 Fed. 675, holding suspension of member of Knights of Pythias 
five years after charges preferred, order having accepted premiums 
meanwhile, not bar beneficiary on policy; Modern Woodmen v. 
Tevis, 111 Fed. 117, holding Modern Woodmen estopped to set up 
noncompliance with prompt payment rules of order where clerk of 
local lodge habitually collects dues overdue; Cable v. United States 
Life Ins. Co., Ill Fed. 31, holding concealment by insured's agent 
of serious illness of insured prevented delivery of policy by insurer's 
agent and acceptance of premium being waiver; Bingler v. Insurance 
Ca, 10 Kan. App. 8, 61 Pac. 674, holding acceptance of overdue 
premiums presents question of waiver for Jury which should not be 
withdrawn for failure to send subsequent health reports; Millis v. 
Scottish Union Ins. Co., 95 Mo. App. 215, 68 S. W. 1067, holding ac- 
ceptance of premium by agent assuring insured that contemplated 
change in insured partnership property would not affect policy 
waives forfeiture clause therein; Mutual, etc.. Life Assn. v. Loven- 
berg, 24 Tex. Civ. 361, 59 S. W. 318, holding policy forfeited by 
nonpayment of premiums not reinstated by receipt for delinquent 
dues where condition of good health contained therein cot ful- 
filled; Hart V. Trustees of Supreme, etc., Alliance, 108 Wis. 496, 84 
N. W. 853, holding letter written by attorney of fraternal alliance 
ninety days after decease, denying liability on ground of suicide. 



i9 Notes on U. S. Reports. 05 U. S. 334-372 

no waiver of ninety-day clause; dissenting opinion in Maupin y. 
Insurance Co., 53 W. Ya. 500, 45 S. E. 1017, majority holding parol 
evidence inadmissible to show agenfs waiver of iron-safe clause, 
policy providing agents have no anth<Mrity to waive it. 

05 U. S. 334-^1. Not cited. 

95 U. S. 342-34a, 24 L. 412, MERCHANTS' NAT. BANK v. COOK. 

SyL 1 (IX, 267). Bankruptcy — Reasonable belief of insolvency 
enough. 

Approved in In re Eggert, 102 Fed. 741, holding question of cred- 
itor's knowledge of debtor's insolvency is question of fact, satis- 
fied by knowledge of such facts as would put ordinary man upon 
inquiry; Lampkin v. People's Nat Bank, 08 Mo. App. 240, 71 S. W. 
716, holding wh^e defendant had reasonable ground to know in- 
solvency and accepted money trustee can follow money notwith- 
standing compromise for part; Brown v. Case, 41 Or. 230, 69 Pac. 
46, upholding sale of lot worth $11,000 for $7,500^ where if debtor 
could have sold lots he would have been solvent though he became 
insolvent; Sirrine v. Stover, etc., Co., 64 S. C. 460, 42 S. E. 432, hold- 
ing under S. C. banlu*uptcy act 1898, creditor's suspicions of in- 
solvency insufficient, such facts as would induce belief in reasonable 
man necessary. 

95 U. S. 347-354, 24 L. 596, SESSIONS v. JOHNSON. 

Syl. 3 (IX, 347). Joint judgment against wrongdoers one satis- 
faction. 

Approved in Engstrand v. Kleffman, 86 Minn. 405, 90 N. W. 1054, 
91 Am. St Rep. 360, holding judgment against several in action 
ex delicto void as to one for lack of service of summons, good 
as to other; McFarlane v. Kipp, 206 Pa. St 322, 55 Atl. 988, holding 
where in suit by firm defendants were allowed to set off claim 
second suit will not lie agalost one prior plaintiff and others thereon. 
See 92 Am. St Rep. 887, note. 

95 U. S. 355-359. Not cited. 

95 U. S. 360-372, 24 L. 416, CASS COUNTY v. JOHNSTON. 
Syl. 1 (IX, 268). " Majority " means of electors voting. 
Approved In Pickett v. Russell, 42 Fla. 139, 28 So. 771, holding 

rule that majority of those voting carry measure under Florida Laws, 
4336 DOt superseded by nor confiicting with Const. 1885, regarding 
school taxes; Green v. State Board of Canvassers, 5 Idaho, 138, 142, 

96 Am. St Rep. 173, 177, 47 Pac, 261, 262, holding favorable vote 
by majority of electors voting upon woman's rights amendment 
was sufficient ratification within Idaho Const, arc 20, S 1; In re 
Denny. 156 Ind. 122, 59 N. E. 366, holding Ind. Const., art. 16, S 1, 
requiring majority of electors to ratify amendment, means more 
than half of those voting; Montgomery County Fiscal Ct. v. Trimble, 
104 Ky. 635, 47 8. W. 775, holding Ky. Const, § 157, requiring 



95 U. S. 37a-390 Notes on U. S. Reports. 80 

assent of two-thirds of voters for county indebt^dnesp, means two- 
thirds of those Toting on the proposition; F07 ▼. Water District, 98 
Me. 85, 56 AtL 202, holding act Febmary 26, 1903, provided to take 
effect when approved by majority vote of legal voters, meant vote 
of majority of those voting; Tinkel v. Grifan, 26 Mont 432, 68 Pac 
861, holding connty indebtedness to build courthouse legaHv author- 
ized within Mont. Const, art. 13, 8 5, where majority of those 
voting favorable. 

Syl. 2 (IX, 268). Absent voter's assent presumed. 

Approved in In re Denny, 156 Ind. 142, 146, 59 N. B. 373, 374 
holding Ind. Const, art 16, § 1, requiring majority vote for con- 
stitutional amendment satisfied by majority of those voting, ab- 
sentees' assent presumed; Montgomery County Fiscal Ct v. Trim- 
ble, 104 Ky. 638, 47 S. W. 776, holding Ky. Const, 8 157, requiring 
two- third vote to authorize county indebtedness, satisfied by two- 
third vote of those voting on that questibn, others assent presumed; 
Davis V. Brown; 46 W. Va. 719, 34 S. E. 840, holding three-fifths of 
votes cast sufficient to carry relocation of courthouse though only 
three-fifths of qualified voters polled. 

Syl. 5 (IX, 270). Ck>unty liable on township bonds. 

Approved in Mather v. San Francisco, 115 Fed. 39, 40, holding city 
and county of San Francisco liable on bonds issued by supervisors 
under Stat. 1875-76, p. 433, to widen Dupont street; State v. Porter, 
11 N. Dak. 320, 91 N. W. 950, holding majority of voting members 
of political convention, regularly organized, capable of binding, 
party though part bolt or remain silent 

95 U. S. 373^380. Not cited. 

95 U. S. 380-390, 24 L. 499, INSURANCE CO. v. HI6GINB0THAM. 

Syl. 1 (IX, 271). Representation of health from time sent 

.Approved in Kerr v. Union Marine Ins. Co., 124 Fed. 838, holding 
representation that ship had not sailed in application dated Novem- 
b^ 4th, granted December 12th, applies to first date to protect loss 
December 7th; Wasey v. Travelers' Ins. Co., 126 Mich. 126, 85 N W. 
461, holding exclusion of finding of coroner's jury that death was 
suicidal, when uncontradicted proof showed accident not error. 

Syl. 3 (IX, 272). Preliminary proof of death as admission. 

Approved in Sharland v. Washington Life Ins. Co., 101 Fed. 211, 
212, holding admissible for insurance company findings of coroner's 
jury used by beneficiaries to prove death of insured; Sartell v. 
Royal Neighbors of America, 85' Minn. 373, 88 N. W. 987, holding 
burden of proving suicide of insured as defense rests on defendant; 
Supreme Lodge Knights of "Honor v. Fletch^, 78 Miss. 388; 29 So. 
525, holding where by-laws of Knights of Honor require coroner's 
certificate as proof court erred in refusing the finding of inquest; 
Dischner v. Piqua Mut, etc, Assn., 14 S. Dak. 438, 85 N. W. 999, 



81 Notes on U. S. Reports. 95 U. S. 391-425 

holding where attending physician certified suicide, eyidonce that 
within five minutes from time seen deceased found dead with re- 
TolTer under him, not warrant withdrawal from Jury. 

Distinguished in Cox. y. Royal Tribe, 42 Or. 873, 71 Pac. 76, 95 
Am. St Rep. 760, holding record of coroner's inquest, furnished by 
subordinate lodge, not admissible in suit on benefit policy. 

95 U. 8. 891-401, 24 L. 481, THOMPSON T. MAXWELL. 

§yL 1 (IX, 272). Consent decree not reviewable. 

Approved in Camden v. Ferreli, 50 W. Va. 120, 40 S. B. 868, 
denying bill of review to set aside decree for specific performance 
entered on default 

Syl. 2 (IX, 272). Parties only given bill of review. 

Approved in Thompson v. Maxwell, 112 Fed. 646, holding petition 
to set aside bankruptcy proceedings not maintainable by one not 
party to those proceedings nor creditor with provable claim. 

fiyl. 4 (IX, 273). Compromise by consent decree unimpeachable. 

Approved in Stltes v. McGee, 87 Or. 577, 61 Pac. 1129, refusing to 
set aside consent decree by embodying compromise of parties as 
claims on ground of mutual mistake. 

SyL 7 (IX, 278). Compromise decree not reviewable by bilL 

Approved in dissenting opinion in Hendryx v. Perkins, 114 Fed. 
828, majority holding bill for vacation of prior decree, charging 
fraud, cannot be sustained on showing of mistake of fact 

95 U. S. 401-406, 24 L. 390, BRIGGS v. SPERRY. 

Syl. 1 (IX, 273). Jurisdiction retained record showing diverse 
citizenship. 

Approved tn Walte v. Santa Cruz, 184 U. S. 327, 46 L. 568, 22 Sup. 
Ct 836, holding Supreme Court will not reverse judgment where 
record in bondholder's suit showed diverse citizenship. 

95 U. S. 407-418, 24 L. 503, UNITED STATES v. GIIiLIS. 

Syl. 2 (IX, 274). Government may make claims unassignable. 

Approved in State v. Kent 98 Mo. App. 289, 71 S. W. 1068, up- 
holding provision in city's ordinance preventing city employees as- 
signing claims for wages. 

95 U. S. 418-425. 24 L. 437, TURNBULL v. PAYSON. 
Syl. 6 (IX, 276). Stock-book names prima facie owner. 

• 

Approved in Fish v. Smith, 73 Conn. 391, 47 Ati. 717, holding 
corporation books not evidence in Connecticut to bind shareholders, 
but admissible to show when shareholders shown to be such be- 
come members; Sigua Iron Co. v. Brown, 171 N. Y. 496, 64 N. E. 
196, holding in action by foreign corporation to recover unpaid 
Vol II — 6 



05 U. S. 425-439 Notes on U. S. Reports. 82 

calls, books admitted under N. Y. Code Civ. Proo., S 829, to bind 
stockholder. 

Distinguished in Foote v. Anderson, 123 Fed. 662, holding entry 
of name in stock-book of bank without proof of luiowledge is as- 
sent by person named insufficient to bind as stockholder. 

Syl. 8 (IX, 277). Clerk's certificate sufficiently authenticates State 
judgment 

Approved in Allison v. Robinson, 136 Ala. 408, 34 So. 967, holding 
transcript of Judgment of Federal court is admissible in court of 
State where rendered (Alabama) upon certificates by clerk. 

Distinguished in United States v. Lew Poy Dew, 119 Fed. 788. 
excluding certificate signed by United States commissioner that de- 
fendant Chinese was by him adjudged entitled to remain, it being 
mere recital. 

Syl. 11 (IX, 277). Federal courts domestic tribunals. 

Approved in Barber v. International Co., 74 Conn. 656, 51 Atl. 
858, 92 Am. St. Rep. 249, holding Judgment of Circuit . Court for 
California district, a domestic Judgment as to Connecticut and 
barred by common-law period of twenty years. 

95 U. S 4^-433, 24 L. 463, INSURANCE CO. v. DAVIS. 

(IX, 277). Miscellaneous. 

Cited in United States v. Dietrich, 126 Fed. 675, holding under 
Rev. Stat., § 3739, contract of postmaster dissolved by operation of 
law when elected to Congress; Baltimore Life Ins. Co. v. Howard, 
95 Md. 2." 9, 52 Atl. 401, holding forfeiture of policy by default of 
four weekly payments waived by acceptance of delinquent pre- 
miums by company's inspector. . 

95 U. S. 434-439, 24 L. 485, BEARD v. BURTS. 

Syl. 1 (IX, 279). Error must appear in decree. 

Approved in Cocke v. Copenhaver, 126 Fed. 147, holding bill on 
face a bill of review cannot claim as ground for reversal cloud In 
title not appearing in record. 

Syl. 2 (IX, 279). Bill of review opens new evidence. 

Approved in Camp Mfg. Co. v. Parker, 121 Fed. 197, dismissing 
bill of review asked on ground of newly discovered evidence where 
evidence touched acreage of land which could have been ascertained 
before. 

• 

Miscellaneous. 

Approved in Wong Wai v. Williamson, 103 Fed. 5, granting 
Injunction preventing San Francisco board of health from restrain- 
ing defendants from traveling about State in pursuit of lawful 
business. 



83 Notes on U. S. Reports. 95 U. S. 439-443 

95 U. S. 439-443, 24 L. 506,. RAILROAD v. JONES. 

Syl. 1 (IX, 279). Negligence defined — Reasonable man test. 

Approved in Gleghorn v. Thompson, 62 Kan. 731, 64 Pac. 607. 
holding act of shooting rifle at seventy rods from highway which re- 
sulted in plaintiff's injuries from deflected ball negligence; Bradley 
T. Ohio River, etc., Ry. Co., 126 N. C. 741, 36 S. E. 183, upholding 
as deflnitions of negligence the failure to do what a reasonable 
and prudent person would have done under circumstances; Dan- 
ville Railway & Electric Co. v. Hodnett, 101 Va. 370. 43 S. E. 607, 
holding motorman seeing horse frightened at approaching car must 
hold car in control and stop if necessary. 

Syl. 3 (IX, 280). Contributory negligence bars plaintiff. 

Approved in Lauterer v. Manhattan Ry., 128 Fed. 544, refusing 
recovery for death of decedent caused in attempt to board defend- 
ant's train after signal had been given and train gates closed; 
Neininger v. Cowan, 101 Fed. 791, holding driving upon track with- 
out looking or listening by one familiar with crossing contributory 
negligence barring recovery; Knauss v. Lake Erie, etc., R. R. Co., 29 
Ind. App. 222, 64 N. E. 97, charging boy of ten sustaining fatal in- 
juries by protruding his head from car window with negligence 
precluding recovery. 

8jL 4 (IX, 282). Riding on pilot is negligence. 

• 

Approved in Erie R. R. Co. v. Kane, 118 Fed. 232, holding work- 
man riding on front of engine against orders of company contrib- 
utorily negligent and precluded from recovery for injuries; Haynes 
v. Fort Dodge & O. R. R. Co., 118 Iowa, 396, 92 N. W. 58, holding 
servant riding on remote end of flat car, thrown therefrom by Jerk 
of train and killed, contributorily negligent; Nieboer v. Detroit 
Electric Ry., 128 Mich. 489, 87 N. W. 627, holding plaintiff's negli- 
gence in riding on bumper of crowded street car against con- 
ductor's warning prevents recovery for injuries received; Howard 
v. Southern Ry. Co., 132 N. C. TH, 44 S. E. 401, holding negligence 
of employee riding on steps of shanty car injured by contact with 
wood pile precluded recovering. 

Distinguished in Florida Cent. & P. R. R. Co. v. Sullivan, 120 
Fed. 803, holding white passenger injured by collision with cattle 
on track not precluded by negligence as matter of law by rid in j; 
In colored coach; Teller v. United States, 113 Fed. 272, 273, leaving 
to jury under all circumstances question of negligence where brake- 
man ordered by foreman to Jump off front of train was caught 
In track and injured; Barley v. Southern Ind. R. R. Co., 30 Ind. 
App. 410, 66 N. E. 73, holding employee riding home from work 
on fiat car of construction train not negligent to preclude re- 
covery for injuries from collision. 



95 U. S. 444-474 Notes on XT. S. Reports. 84 

2» U. 8. 444-468, 24 L. 360, WILLIAMS v. MOBBia 
Syl. 8 (IX, 284). Stati^te requires certainty of essential terms. 

Approved In United Press v. New York Press Co., 164 N. Y. 410, 
58 N. E. 628, holding contract to furnish news, price not to exceed 
$300, not ambiguous as to admit parol evidence; Catterlin v. Bush, 
39 Or. 501, 65 Pac. 1005, holding bad for indefiniteness under Hill's 
Anno. Laws Or., f 785, contract stating "price $6,000. 0. pays 
note $200," not signed by party charged. 

Distinguished in Abba v. Smyth, 21 Utah, 115, 69 Pac. 758, up- 
lioldlng written contract for lease where essential terms binding 
4;>arties were present 

Syl. 4 (IX, 284). Writing of complete agreement sufficient 

Approved in Abba v. Smyth, 21 Utah, 115, 59 Pac. 768, upholdlnir 
written contract for leasing farm where essential terms were 
j;)resent and admitting parol evidence to show performance. 

Sjl. 5 (IX, 284). Part performance directly referable to contract 

Approved in Winslow v. Baltimore & O. B. B. Co., 188 U. S. 668, 
23 Sup. Ct 447, 47 L. 640, holding continuing possession by lessee 
of renewable lease and acceptance of rent not part performance 
within statute. 

.95 U. S. 45^-466, 24 L. 625, POUND v. TUBCK. 

Syl. 1 (IX, 285). Belative powers of State and nation* 

Approved in Lindsay & Phelps Co. v. Mullen, 176 U. B. 141, 
-44 L. 406, 20 Sup. Ct 331, upholding lien under Minn. Stat 1894, 
•f 2402, on logs cut in other State for scaling and surveying charges; 
Frost V. Baihroad Co., 96 Me. 87, 51 Atl. 809, upholding act Con- 
:gress 1900, 31 Stat 187, approving trestle which obstructed navi- 
gation in tide-water channel. 

Syl. 2 (IX, 287). State authorizing booms on State waters. 

Approved in Lindsay & Phelps Co. v. Mullen, 176 U. S. 138, 148, 
44 L. 4(KS, 409, 20 Sup. Ct 329, 333, upholding extension of boom 

.-across Mississippi under authority of Minn. Stat 1894, f 2400; 
Manigault v. S. M. Ward, etc., Co., 123 Fed. 718, upholding special 

;act, S. C, 24 Stat at Large, p. 246, authorizing dam across navl- 

, gable creels 

Miscellaneous. 

Approved in I., etc.. By. v. Lehman, 80 Tex. Civ. 4, 66 S. W. 
:216, holding reversible error charge that railway responsible for 
: Injuries avoidable by reasonable care, but not excused for running 
•over decedent 

'«S U. S. 465-474, 24 L. 527, BAILBOAD CO. v. HUSEN. 

Syl. 1 (IX, 287). Congress exclusively regulates interstate com- 
merce. 

Approved in Cicossman v. Lurman, 192 U. B. 196, 24 Sup. Ct 286^ 



85 Notes on U. S. Reports. 95 U. S. 465-474 

upholding N. Y. Laws 18d3, chap. 661, S 41, prohibiting sale of adul- 
terated food products, such being valid police regulations; United 
States T. Slater, 123 Fed. 121, upholding act May 29, 1884, 23 Stat. 
31, making driving infected cattle between States a misdemeanor. 

SyL 2 (IX, 288). Transportation between States is interstate 
commerce. 

Distinguished in Rasmussen v. Idaho, 181 U. & 200, 202, 45 L. 
821, 822, 21 Sup. Gt 595, 596, upholding Idaho sheep quarantine act 
authorizing governor to restrict introduction of infected sheep; 
Austin V. Tennessee, 179 U. S. 349, 45 L. 228, 21 Sup. Gt 134, uphold- 
ing Tennessee restriction upon sale of tobacco as police regulation* 

SyL 3 (IX, 289). Police power retained by States. 

Approved in dissenting opinion in Austin v. Tennessee, 179 U. S. 
374, 45 L. 238, 21 Sup. Gt. 144, majority holding sale of tobacco 
subject to police power of States. 

SyL 4 (IX, 289). Police power not covering congressional sub- 
jects. 

Approved in L'Hote v. New Orleans, 177 U. S. 596, 44 L. 903, 20 
Sup. Gt 791, upholding Louisiana ordinance prescribing limits of 
residence of lewd women as exercise of police power; Willfong v. 
Omaha, etc., Ry., 116 Iowa, 550, 90 N. W. 359, upholding Iowa Gode, 
§ 2072, requiring railroad to sound whistle before reaching crossings; 
State V. Schlenlier, 112 Iowa, 646, 84 N. W. 699, upholding Iowa 
Gode, §§ 4989, 4990, prohibiting sale of adulterated mills. 

Distinguished in Grossman v. Lurman, 171 N. Y. 333, 63 N. E. 
1099, upholding N. Y. Laws 1893, chap. 661, § 41, prohibiting met- 
chandizing adulterated foods. 

SyL 7 (IX, 292). Prohibtting importing cattle void. 

Approved 'in State v. Duckworth, 5 Idaho, 647, 95 Am. St Rep. 
202. 51 Pac. 457. holding unconstitutional Idnho statute, Sess. Laws 
1897, requiring sheep brought into State to be dipped; dissenting 
opinion in Compagnie Francaise v. State Board of Health, La., 186 
U. S. 399, 46 L. 1218, 22 Sup. Gt 819, upholding under La. Acts 1898, 
chap. 192, f 8, quarantine of French vessel preventing it from 
entering infected port; dissenting opinion In Smith v. St. Louis & 
Southwestern R. R. Go., 181 U. S. 200, 203, 45 L. 852, 853, 21 Sup. 
Ct 607, majority upholding Texas quarantine regulations pur- 
suant to Tex. Rev. Stat. 1895, art. 5043c, prohibiting temporarily all 
transportation of Louisiana cattle. 

Distinguished* in Smith v. St Louis & Southwestern R. R. Go., 
181 U. S. 254, 1:56, 45 L. 849, 850, 21 Sup. Gt. 605, 606, upholding 
Texas quarantine regulations under Tex. Rev. Stat 1895, art. 
5043c, prohibiting transportation of all Louisiana cattle for period; 
Pabst Brewing Co. v. Grenshaw, 120 Fed. 152, upholding Mo. 
Sess. Laws 1899, p. 228, providing for inspection of beer to be 



05 n. S. 47^-485 



Not 



1 U. S. Repons. 



m 



sold In State; Reld T. People, 29 Colo. 342. OS Poc. 230, it3 Am. St. 
Hep. 75. uphold[ng Colo. Scsb. Laws 1885, p. 185, i 2, requiring 
bill of health ot cattle from points south of Itilrty-slx degrees north 
latitude; State v. RasrauRSfn, 7 Idaho, 7, 9, 59 Pae. 934, upholding 
Idaho Law 1S99, under t7h1ch governor suspended Importation of 
Infected sheep for sixty daj b. 

Sjl. 8 (IX. 292). Police power cannot obBtruct Interstate com- 
merce. 

Approved in Austin t. Tf nnessee, 179 V. 3. 344. 45 L. 227. 21 Sup. 
Ct 132, upholding as police regulation, Tennessee prohibition of 
sale of cigarettes, not discriminating against product of ottier States; 
LoulBiana v. Texas, 17(J U. S. 24. 44 L. 356, 2u Snp. Ct 259, holding 
embargo placed by ooe State for its benefit upon commerce from 
sister State raises no Federal question; Smith v. Lowe, 121 Fed. 
7SS, holding eiclUBion of sheep under Idaho Sess. Laws 1890, i 452, 
for forty days Invalid; In re Davenport, 102 Fed. 543. upholding 
State restriction of Importation of game from another State; Com- 
monwealth V. Petranlch, 183 Mass. 219, 66 N. E. 808, holding un- 
constitutional in application to native wines. Mass. Rev. Laws, 
i 1, prohibiting sale of liquor without license; dissenting opinion 
In Austin v. Tennessee, 179 D. S. 376, 43 L. 239, 21 Sup, Ct. 145, 
holding sale of tobacco subject to police power of States. 

Distinguished In Beld v. Colorado, 187 U. S. 151, 23 Sup. CL 97, 
47 L. 115, upholding Colo. Sess. Laws 1885, p. 335, requiring 
health certificate before Importation of cattle from points south of 
thlrty-sIx degrees north latitude; Croaaman v. Lurman, 171 N, Y. 
332, 63 N. E. 1098, upholding N. Y. Laws 1803, chap. 661. i 41, pro- 
hibiting sale of adulterated foods: St. Louis, etc., Ry. v. Smith, 20 
Tex. Civ. 460. 49 S. W. 631. upholding Tex. Rev. Stat. 1895. tit. 
102, chap. 7, authorizing sanitary commission to prohibit importa- 
tion of diseased cattle. 

96 U. S. 474-485, 24 L. 508, BROWN v. SPOFFORD, 

SyL 2 (IK, 294). Parol evidence cannot vary negotiable Instru- 
ments. 

Approved tn Stein v. Fogarty, 4 Idaho, 704, 43 Pac. 681, excluding 
parol evidence of oral contemporary agreements to show note pay- 
able in money was to be satlsdfied by work and labor; Jamestown 
Busineas College Assn. v. Allen, 172 N. Y. 297, 64 N. E. 954, 02 Am. 
8L Rep. 744, holding where promiBSory note given for tuition It can- 
not be shown that note not binding if maker did not enter college. 

SyL 3 (IX, 294). Bona fide purchaser protected. 

Approved In Pickens Tp. v. Post, 89 Fed. 662, holding holder of 
municipal bond, negotiable Instrument, presumed to take before 
maturity, bona fide, for value. 



87 Notes on U. S. Reports. 95 U. S. 485-617 

^L 8 (IX, 295). Appeal — Single writ of error allowed. 

Approved in LouiSTille, etc., R. R. Co. v. Summers, 125 Fed. 720» 
holding improper Joining in one writ of error two separate judg- 
ments tried together for convenience but waived in absence of 
objection. 

95 U. S. 485-517, 24 L. 547, HALL v. DE CUIR. 

Syl. 2 (IX, 295). State regulations on all passengers void. 

Approved in Louisville & N. R. R. Ck). v. Eubanlc, 184 U. S. 40, 46 
L. 422, 22 Sup. Gt 282, holding unconstitutional Ky. Const, f 218, 
prohibiting carriers from charging more for shorter than for longer 
haul; Cleveland, etc., Ry. Co. v. lUinois, 177 U. S. 518, 44 L. 870, 
20 <Sup. Ct 723, 725, holding invalid requirement of 111. act, March 
21, 1874, f 26, that all regular passenger trains should stop at 
county seats; Kansas City, etc., Ry. v. Board of R. R. Comrs., 
106 Fed. 360, denying right of Arlcansas railroad commission to 
fix rates between State points where considerable portion of line 
lies in other State. 

Distinguished in Chesapeake & O. R. R. Co. v. Kentuclsy, 179 
U. S. 390, 45 L. 246, 21 Sup. Ct 102, upholding Ky. Stat 1892, § 1, 
requiring separate coaches for whites and negroes. 

Syl. 3 (IX, 298). Interstate commerce must not be burdened. 

Approved in The Roanolte, 189 U. S. 197, 23 Sup. Ct 494, 47 L. 
774, holding invalid preferred lien proviaed in 2 Ball. (Wash.) Code 
& Stat, SS 5953, 51(54, for worlc and materials supplied foreign owned 
vessels; Hanley v. Kansas City So. Ry. Co , 187 U. S. 620. 23 Sup. 
Ct 215, 47 L. 336, holding Arlsansas railroad commissioners cannot 
fix rates between State points where line is largely in another 
State; State v. Hanaphy. 117 Iowa, 19, 90 N. W. 602, holding 
Iowa Code, f 2382, prohibiting distribution of liquor, inapplicable 
to traveling salesman receiving i.quor C. O. D., in answer to orders 
sent to Illinois principal; Lowe v. Seaboard Air L. Co., 63 S. O. 
250, 41 S. E. 298, 90 Am. St Rep. 680, holding unconstitutional 
S. C. 22 Stat at Large, p. 120, penalizing carrier for shipping 
freight by line other than designated, applied to foreign goods; 
Southern Express Co. v. Goldberg, 101 Va. 622, 624, 44 S. E. 804, 
895, holding unconstitutional Va. Code. 1887, j5 1215, in undertaking 
to fix express rates on interstate commerce; Wall v. N. & W. It R., 
52 W. Va. 496, 44 S. E. 299, 94 Am. St. Rep. 959, holding cars 
hauling interstate freight into and from State not attachable therem. 
See 90 Am. St Rep. 260, note. 

Syl. 4 (IX, 298). Equality of right, not identity demandable. 

Approved in Bowie v. Birmingham Ry., etc., Co., 125 Ala. 410, 
27 So. 1020, upholding Alabama street-railway rule requiring col- 
ored passengers to sit in front end of cars; Ohio Valley Ry., etc. 
T. Lander, etc., 104 Ky. 440, 47 8. W. 346, upholding Ky. act 
1892 " separate coach law.** 



05 U. S. 517-546 Notes on U. S. Reports. ^ 

8yL 6 (IX, 298). State may pass quarantine laws. 

Approved in Ohio Valley, etc.. Receiver v. Lander, etc., 104 Ky. 
447, 47 S. W. 348, construing Kentuclcy "separate coach law" 
as applying to transportation within the State. 

05 U. S. 517-527, 24 L. 440, BEECHER v. WBTHERBY. 

Syl. 2 (IX, 299). State has ownership, Indians occupancy. 

Approved in Stearns v. Minnesota ex rel. Marr, 179 U. S. 249, 45 
L. 176, 21 Sup. Gt. 83, holding contracts exempting railroads from 
taxes made by Minn. S. P. Laws 1865, not violation of Minn. 
Const. 9, §§ 1, 3, preventing exemption; United States v. Blendauer, 
128 Fed. 913, holding lands, formerly held by Flathead Indians of 
Montana, made public lands within 26 Stat. 1103, forest reserva- 
tions, by removing Indians and extending homestead laws. 

Distinguished in Minnesota v. Hitchcock. 185 U. S. 392, 397, 46 
L. 964, 966, 22 Sup. Gt 657, 659, holding State of Minnesota derived 
no title from cession by Ghippewas since they had only right 
of occupancy, under 25 Stat, at Large, 642, title being in United 
States. 

Syl. 3 (IX, 299). Government selling lands occupied by Indians. 

Approved in Lone Wolf v. Hitchcock, 187 U. S. 565, 23 Sup. 
Gt 221, 47 L. 306, upholding congressional act June, 1900, 31 Stat 
at Large, 677, chap. 813, alloting reservation lands in severalty; 
United States v. Ghoctaw Nation, 179 U. S. 533, 45 L. 306, 21 Sup. 
Gt 164, upholding cession of lands by Ghoctaw Indians to United 
States, purporting to convey absolute interest and refusing to con- 
strue, is a trust 

95 U. S. 527-538. Not cited. 

» 

95 U. S. 539-546, 24 L. 518, GLARK v. UNITED STATES. 

SyL 1 (IX, 300). War department contracts must be written. 

Distinguished in St Louis Hay, etc.. Go. v. United States, 191 
U. S. 163, 24 Sup. Gt 48, denying recovery on quantum valebat for 
increased value of hay sold government where contract was void 
and contract price paid. 

Syl. 2 (IX, 300). Quantum meruit recovery partially executed 
contracts. 

Approved in United States v. Barlow, 184 U. S. 136, 46 L. 
469, 22 Sup. Gt 474, holding order of secretary of navy to con- 
tractors to use " water-jet system ** of pile driving not a change 
of contract; Davis v. United States, 120 Fed. 192, allowing re- 
covery against United States, under 24 Stat 505, for hospital ser- 
vices rendered for soldiers on oral request of captain. 

Distinguished in St. Louis Hay, etc., Go. v. United States, 191 
U. S. 164, 24 Sup. Gt 49, holding where void contract for supply 
of hay was fultilled and contract price paid claimant cannot re> 
cover for increase in price. 



SB Notes on U. S. Reports. 95 U. S. 547-559 

SyL 4 (IX, 300). Bailee for hire — Ordinary care required. 

Approved In BTCormick v. Shippy, 124 Fed. 51, holding char- 
taa not liable for loss of yacht where contract freed him re- 
sponsibility except for maintenance of boat in order unless lost; 
W. H. Beard Dredging Co. v. Hughes, 113 Fed. 682, holding 
charterer of scows not liable for injuries received by them 
after return before end of term without showing negligence. 

Distinguished in Sun Printing & Publishing Assn. v. Moore, 183 
U. S, 654, 46 L. 374, 22 Sup. Ct 245, holding charterer of yacht 
bonnd by charter party to surrender vessel in as good condition 
as at start bound thereby. 

95 U. S. 547-551, 24 L. 487, INSURANCE CO. v. THOMPSON. 

SyL 1 (IX, 301). Sureties* insurable interest in bonded whislsy. 

DisUnguished in Queen Ins. Co. v. McCoin, 105 Ky. 807, 49 S. 
W. 800, holding policy of insurance on whislsy in bonded ware- 
lionse includes full value not reduced by taxes due thereon. 

SyL 3 (IX, 301). Uncollectlbility of revenue tax no defense. 

Approved in dissenting opinion in Cornell v. Travelers' Ins. Co., 
175 N. Y. 254, 67 N. B. 583, majority holding insurer against 
claims for damages against insured company not liable for costs 
of defending unsuccessful actions for damages. 

85 U. S. 551-557, 24 L. 456, MORROW v. WHITNEY. 

SyL 1 (IX, 301). Confirmation by government passes title. 

Approved in Joplin v. Chachere, 192 U. S. 104, 24 Sup. Ct 216, 
217, 218, holding congressional confirmation in 3 Stat, at Large 
329, of land commissioners* prior recognition of settlers' claims 
passed title to start prescription before patent granted; Jopling v. 
Chachere et al., 107 La. 530, 32 So. 246, holding act of Congress, 
confirming action of Orleans territorial board recognizing claim to 
land based on occupancy, operated as grant. 

SyL 5 (IX, 302). No adverse possession against government. 

Approved in State v. Diclsinson, 129 Mich. 227, 88 N. W. 623, 
holding residence of 100 years and payment of taxes sufficient to 
raise presumption of prior grant 

95 U. S. 557-559, 24 L. 490. WE)ST ST. LOUIS SAV. BANK v. 
SHAWNEE COUNTY BANK. 

fiyL 1 (IX, 302). BanliL's indorsement before payee's is suspicious.. 

Distinguished in Pelton v. Spider Lalse, etc., Co., 117 Wis. 573, 
94 N. W. 294, holding indorsement by corporation where not in 
claim of title should cause Inquiry; Hiawatha Iron Co. v. John 
Strange Paper Co., 106 Wis. 117, 81 N. W. 10li6, holding notes ot 
corporation indorsed by proper ofl^cer good in hands of purchaser, 
tbough showing on face officer gave them to corporation. 



Co U. S. 5(50-599 Notes on U. S. Reports. 90 

Byl. 2 (IX, 302). Unauthorized cashier cannot sign accommoda- 
tion paper. 

Approved in Schofield v. State Nat Bank, 97 Fed. 288, holding 
power to conduct general banking business includes power to as- 
sume liabilities of another bank in consideration of traL»sftf of 
assets; Small v. Elliott, 12 S. D. 576, 76 Am. St Rep. 633, 82 N. 
W. 93, holding bank president has no power to bind bank on guar- 
anty of payment of note. 

95 U. S. 560-670. Not cited. 

95 U. «. 571-576, 24 L. 491, UNITED STATES v. TWO HUNDRED 
BARREDS OP WHISKY. 

Syi. 2 (IX, 304). Commissioner's power to amend law. 

Distinguished in United States v. Three Packages of Distilled 
Spirits, 125 Fed. 55, holding, under Rev. Stat, f 3455, the placing 
of caramel in liquor rendered it subject to forfeiture. 

95 U. S. 576-579, 24 L. 391, RAILROAD v. DURANT. 
Syl. 2 (IX, 305). Conveyance to " trustee " explainable by paroL 

Approved in American Bonding, etc., Co. v. Takahashi, 111 
Fed. 129, admitting surrounding circumstances to determine who 
is responsible for defalcations where contract calls for payment 
of money to one as trustee. See 82 Am. St Rep. 523, note. 

95 U. S. 580-587, 24 L. 631, UNITED STATES v. MANN. 

Syl. 2 (IX, 306). Information for penalty must be clear. 

Approved in Bartiett v. United States, 106 Fed. 885, holding 
insufficient indictment for i>erjury in omitting assets from schedule 
of bankruptcy falling to allege existence of other property; In re 
Richter, 100 Fed. 297, holding insufficient indictment charging em- 
bezzlement in Alaska where statute recognized no such crime. 

Syl. 4 (IX, 306). Information for refusing to allow examinatioiL 

Approved in In re Kinney, 102 Fed. 471, holding Rev. Stat, 
S 3173, authorizing collector to examine persons bound to return 
''objects subject to tax," inapplicable to persons taxing xmdet 
oleomargarine law. 

95 U. S. 587-591. Not cited. 

95 U. S. 591-599, 24 L. 458, GIVEN v. HILTON. 

Syl. 1 (IX, 306). Law construes against partial Intestacy. 

Approved in Canfield v. Canfield, 118 Fed. 6, holding where 
unmarried testator devised property to trustee to manage for 
younger brother, with no disposition if trustee did not turn ov^, 
presumed for brother; In re Donges' Estate, 103 Wis. 501, 74 Am. 
St Rep. 887, 79 N. W. 787, construing will devising estate to 
wife to hold only until youngest child reach twenty-one to include 
disposition to children at that time. 



91 Notes on U. S. Reports. 05 U. S. GOO-637 

Syl. 3 (IX, 306). General disposing intent determining particular 
derlses. 

Approved in White v. Crawford, 87 Mo. App. 268, holding will 
providing **a8 to share in brother's estate, my daughter $10, rest 
and residue of my personal estate to three sons," conveyed per- 
sonalty only. 

Syl. 8 (IX, 307). Testator directing realty converted into per- 
sonalty. 

Approved in Hutchings y. Davis, 68 Ohio St 174, 67 N. E. 254. 
holding where will directs sale of all realty without providing for 
wife latter may enfcHrce dower right against proceeds so obtained; 
Harrington v. Peer, 105 Wis. 492, 495, 76 Am. St Rep. 928. 931. 82 
N. W. 347, 349, holding where will directed conversion of realty 
into personalty equity considers it done by equitable conversion 
from death of testator. 

96 U. 8. 60(Ma8, 24 L. 461, THE WANATI. 

SyL 1 (IX, 307). Ck)lIision — Owners liable for damages. 

Approved in The George W. Roby, 111 Fed. 622, holding owners 
of vessel giving bond conditioned for payment of liability for 
collision loss providing for interest are liable for interest from 
execution. 

SyL 2 (IX, 307). Stipulation not binding where stipulator de- 
faults. 

Approved in The George W. Roby, 111 Fed. 622, holding owners 
of vessel executing bond covering liability for collision, including 
interest on adverse award, liable for interest from execution. 

95 U. S. 619-627, 24 L. 394, COUNTY OF HENRY- v. NICOLAY. 

SyL 4 (IX, 310). €k>nsolidated company's right to receive sub- 
scription. 

Approved in State v. Smith, 173 Mo. 411, 73 S. W. 214, holding 
on consolidation of two corporations new company formed, but 
surety is liable on bonds entered into by constituent member; 
Springfield Lighting Go. v. Hobart, 98 Mo. App. 236, 68 S. W. 944. 
holding surety on electric-light company's bond to furnish power 
liable where obligor consolidated with another company. 

(IX, 309.) Miscellaneous. 

Cited in In re Nevitt, 117 Fed. 460, holding writ of habeas 
corpus challenges jurisdiction or power of committing court and 
does not bring erroneous rulings up for review. 

95 U. S. 628-637, 24 L. 366, TERRY v. ANDERSON. 

SyL 1 (IX, 310). Stockholders' liability arises on bank's insol- 
vency. 

Approved in Swearingen t. Newickley Dairy Co., 198 Pa. St. 



05 U. S. 628-637 Notes on U. S. Reports. 02 

74, 47 Atl. 943, holding creditor's right of action for unpaid sub- 
scriptions is complete on corporation insolvency and statute begins 
then. See 96 Am. St. Rep. 977, note. 

Syl. 3 (IX, 310). Change in Statute of Limitation allowed. 

Approved in Wilson v. Iseminger, 185 XT. S. 63, 46 L. 807, 22 Sup* 
Gt. 575, upholding Pa. act, April 27, 1855, § 7, to go into effect within 
three years, conclusively presuming release from ground rent where 
no demand or payment within twenty-one years; Saranac Land, 
etc., Co. V. Comptroller of New York, 177 U. S. 324, 330, 44 L. 790, 
792, 20 Sup. Ct. 645, 647, holding defects in proceedings for obtaining 
tax titles cannot be raised under N. Y. Laws 1885, chap. 448, 
when statutory period has run; Bradley v. Lightcap, 201 111. 523, 66 
N. E. 550, upholding 111. Rev. Stat., chap. 77, f 30, entitling legal 
liolder of certificate of sale under mortgage foreclosure to deed 
within five years after time of redemption; L., etc., B. B. Co. t. Wil- 
liams, 103 Ky. 378, 45 S. W. 230, upholding repeal by State of 
charter provisions of railroad requiring actions for injuries to 
stock to be brought within six months; Ashley Co. v. Bradford, 
100 La. 053, 33 So. 639, upholding La. Const., art. 233, rendering tax 
titles valid unless attacked within three years; Soper v. Lawrence 
Bros. Co., 98 Me. 284, 66 Atl. 913, upholding Me. Pub. Laws 1896, 
limiting actions for recovery of land to twenty years, giving five 
years for prosecution of existing claims; Kreyllng v; O'Reilly, 97 
Mo. App. 392, 71 S. W. 374, upholding Mo. Rev. Stat 1899, §§ 4278, 
4277, providing no suit for foreclosing mortgage, where debt was 
outlawed after two years from passage of act; Meigs v. Roberts, 
162 N. Y. 378, 76 Am. St Rep. 325, 56 N. B. 840, holding N. Y. 
Laws 1885, chap. 448, making tax deed, after two years, conclusive 
evidence of regularity as to parties not in possession, Statute of 
Limitation; Oshkosh Water- Works Co. v. City of Oshkosh, 109 Wis. 
218, 85 N. W. 380, upholding amendments to city charter requiring 
disallowance of claim before suit brought and otherwise changing 
procedure. 

Distinguished in Morrissett v. Carr, 127 Ala. 279, 27 So. 844, 
holding Ala. Code, § 130, requiring filing of claims against estate 
within twelve months instead of eighteen, inapplicable to past 
claims. 

Syl. 4 (IX, 311). Legislature may change form of remedy. 

Approved in McFaddin v. Evans-Snider-Buel Co., 185 U. S. 614, 
46 L. 1019, 22 Sup. Ct. 761, upholding act of February 3, 1897, 
validating mortgages of personal property executed by nonresi- 
dents of Indian Territory; Evans-Snider Buel Co. v. McFadden, 105 
Fed. 298, 301, upholding as against creditor, act February 3, 1897; 
29 Stat. 510, validating mortgages of personalty in Indian Territory. 

(IX, 310.) Miscellaneous. 

Cited in Brunswick Terminal Co. y. National Bank, 99 Fed. 639* 
holding in action in Maryland against stockholder in Georgia cor- 



f8 Notes on U. S. Reports. 05 U. S. 637-660 

poration, twenty-year Statute of Limitations of Ga« Gode, 1882| 
f 2916, applies. 

96 If. S. 637-643. Not cited. 

95 U. S. 6i4-6G6, 24 L. 521, NEW ORLEANS v. CLARK. 

SyL 2 (IX, 314). Municipalities aiding private corporations In 
construction. 

Approved in Oivic Federation v. Salt Lake County, 22 Utah, 17, 
61 Pac. 223, upholding Utah Sess. Laws 1897, chap. 30, authorizing 
counties to refund moneys advanced by citizens aiding in enforcing 
laws. 

Syl. 3 (IX, 814). Legislature authorizing payment of unenforce-' 
jable claim. 

Approved in Qeer v. School Dist No. 11, 111 Fed. 690, holding 
•school district with power to create indebtedness liable to return 
money borrowed to build schoolhouse, though bonds unenforceable 
for irregularity; Steele Co. v. Erskine, 98 Fed. 220, upholding legis- 
lative statute confirming void contract of combined county for tran- 
-scribing records of constituent county holding county; Earle v. Com- 
monwealth, 180 Mass. 583, 63 N. E. 10, 91 Am. St Rep. 329, uphold- 
ing Mass. Stat 1895, chap. 488, § 14, allowing compensation for loss 
to established business from statute, including within term phy- 
sician's practice. 

Distinguished in Matter of Chapman v. New York, 168 N. Y. 85, 
61 N. E. 109, holding unconstitutional N. Y. Laws 1899, chap. 700, 
attempting to create indebtedness of county for expenses incurred 
by officer defending charges of official conduct; Bailey v. Raleigh, 
130 N. C. 211, 212, 41 S. B. 282, refusing under N. C. Laws 1901, 
chap. 327, to compel city to refund taxes lawfully authorized, levied 
upon taxpayers within mile of city limits. 

Syl. 5 (IX, 315). Power to tax property in Jurisdiction. 

Approved in dissenting opinion in Adams v. City of Beloit, 105 
Wis. 381, 81 N. W. 874, majority holding under Wis. Rev. Stat 3898, 
chap. 40a, f f 175, 177, cost of repaving street assessable to abutting 
owners. 

Syl. 8 (IX, 316). Law requiring payment of equitable claim. 

Approved in New York Life Ins. Co. v. Board of Comrs., 100 
Fed. 129, 134, upholding under Ohio Const, art. 2, § 28, legislature 
act April 27, 1898, authorizing county commissioners to issue bonds 
to build armory. 

95 U. S. 655-660, 24 L. 535, RAILWAY v. STEVENS. 

Syl. 1 (IX, 316). Holder of pass passenger for hire. 

Approved in Whitney v. New York, etc., R. R. Co., 102 Fed. 853, 
^ 856, upholding employee's right to recover as passenger where 



95 D. S. 601-GC9 Notes on U. S. Reporta. 



9i 



In cliange of employment be stipulated (or raised wages and pnaa 
on road, tbough latter exempted company, 

DiBtingulalied In Nortliern Pac. Ry. v. Adams. 192 U. S. 450, 24 
Snp. Ct 410, holding company not liable under Idaho Hev. Stat.. 
i 4100, for death of passenger riding on free pass exempting com- 
pany from all liability for negligence; Russell v. Pittsburg. C, etc,, 
Ry. Co., 167 Ind. 313, 61 N. E. 681, holding contract between Pull- 
man company and employee releasing former from liability for 
negligence inures to beneflt of carrier transporting Pullman car. 

Syl. 4 (IX, 316). Negligence stipulation void passed for considera- 
tion. 

Approved Id Sanndera », Southern Ry., 128 Fed. 19, holding In- 
operative provision In carrier's contract releasing it from liability 
for any loss to baggage, signed by plaintiff's propertyman without 
plalnUfTs knowledge: Doyle v. Baltimore, etc., R. R., 126 Fed. S42, 
holding railroad's liability for negligence not escaped by stamped 
memorandum upon bill of lading, sueb not being known by shipper; 
Nelson t. Great Northern Ry.. 2S Mont. 323, 72 Pac. 650. holdiog 
under Mont. Code, ii 2876, 2S77, 2912, railroad cannot eiempt 
Itself from liability tor negligent delay causing damage to sheep 



Distinguished in Baltimore & Ohio, etc., Ry. v. Voigt, 176 U. S. 
505, 44 L. 565, 20 Sup. Ct. 387. holding express messenger In com- 
pany's car bound by contract of service, exempting railroad and 
express companies from negligence liability; Duncan v. Maine 
Cent. R. R., 113 Fed, 510, holding passenger riding on free pass 
given on request cannot recover for Injuries received, having as- 
sumed risks; Norfolk, etc., Ry. v. Tanner, 100 Va. 390, 392, 41 S. E. 
724, 725, holding Invalid under Va. Code. I 1296, agreement of 
passenger traveling on free pass "assuming all risks of accident;" 
Peterson v. Seattle Traction Co., 23 Wash. 037, 639, 63 Pac. 516, 547. 
holding street-car employee precluded by contract limiting com- 
pany's iiablllty from recovery for Injuries received. 
95 D- 8. 661-664. Not cited. 
95 U. S. 6C5-flG9. 24 L. 523, CHUBB t. UPTON. 

Syl. 1 (IX, 318). Dealing with corporation waives Irregularities. 

Approved in New Orleaae Debenture Redemption Co. v. Louisiana, 
180 U. S. 328, 45 L. 556, 21 Sup. Ct. 381. upholding right of State to 
sue de facto corporation without joining etockholdere to annul, 
charter for irregularities of organization and misuse of charter; 
W. L. Wells Co. V. Avon Mills. US Fed. 191, estopphig one dealing 
with Mississippi corporation to deny citizenship of corporation for 
Federal jursdiction on ground of capital stocic unpaid: American 
Alkali Co. V, Campbell, 113 Fed. 405. denying subscriber's right to 
defend against calls on ground of Irregularity In resolutions making 

C8lL 




95 Notes on XT. S. Reports. 05 U. S. 670-679 

Syl. 3 (IX, 319). False representations not ayallable against 
assignee. 

Approved in Hoeft t. Kock, 123 Mich. 172, 81 N. W. 1070, denying 
stockholder's right to repudiate liability on increased capital stock 
on ground that certificate authorizing increase had not been filed 
as represented. 

SyL 4 (IX, 319). Receiving certificate binds stockholder for 
amount. 

Approved in Nashua Sav. Bank v. Anglo-American Co., 189 XT. S. 
232, 23 Sup. CL 519, 47 L. 787, holding under 25 & 26 Vict, chap. 
89, express promise by stockholder to pay assessments not neces- 
sary to bind American stockholders of English corporation; Bailey v. 
Tillinghast, 99 Fed. 808, holding subscribers precluded by comp- 
troller's certificate authorizing increase of national bank's capital 
stock from raising questions of irregularity of prior proceedings. 

Distinguished in dissenting opinion in Nashua Sav. Bank v. Anglo- 
American, etcf., Co., 108 Fed. 778, majority holding foreign cori>o- 
ration entitled to recover from domestic stockholder on calls and 
regqlarity of proceedings presumed where record on appeal omits 
evidence. 

95 U. S. 670-673, 24 L. 538, UNITED STATES v. FOX. 

Syl. 1 (IX, 319). Act must be offense when committed. 

Approved in United States y. Dietrich, 126 Fed. 685, acquitting 
defendant of charge of bribery under Rev. Stat, f 1781, where act 
charged was done before defendant had been seated as senator. 

95 U. S. 673-679, 24 L. 563, NATIONAL BANK T. INSURANCE 
CO. 

Syl. 1 (IX, 320). Application made part of policy binds. 

Approved in Mutual Life Ins. Co. v. Kelly, 114 Fed. 278, enforcing 
agreements of application, restricting residence of assured and 
Against suicide, sane or insane, where they were offered a part 
consideration and so accepted; Hubbard v. Mutual Reserve, etc., 
Assn., 100 Fed. 721, holding warranty of answers binding where 
policy conditioned to be void If untrue although some answers not 
meant to be warranted; Dimick v. Met. Life Ins. Co., 67 N. J. L. 
873, 51 Atl. 604, holding warranty by applicant for insurance policy, 
if made part of policy, is condition precedent to insurer's liability; 
Remington v. Fidelity, etc., Co., 27 Wash. 441, 67 Pac. 993, holding 
representation to surety on employee's bond that accounts were cor- 
rect, where expert could have fouud mistakes, a representation not 
* warranty. 

Syl. 2 (IX, 320). Unintentional overvaluation not vitiate policy. 

tHstinguished In Hubbard v. Mutual Reserve, etc., Assn., 100 Fed. 
% holding where application for life insurance warrants answers 



05 U. S. 673-679 Notes on U. S. Reports. 9Q 

given to be true and policy conditioned to be void if answers untrue, 
warranty is binding. 

Syl. 3 (IX, 321). Policy construed against company. 

Approved in Royal Ins. Co. v. Martin, 192 U. S. 162, 24 Sup. Ct 
251, holding denial by company of all liability under policy dis- 
penses with necessity of furnishing proofs required by policy where 
loss occurred during riot; McMaster v. New York Life Ins. Ck)., 183 
U. S. 40, 46 L. 73, 22 Sup. Ct. 16, upholding policy where insured 
omitted to read policy stipulating for earlier payment of premiums 
than agreed, where agent represented policy to accord with a^^ree- 
ment; Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 136, 45 
L. 462, 21 Sup. Ct. 328, holding failure to produce books and In- 
ventory not fatal where books kept in safe place were destroyed 
without Insurer's negligence; Order of United Commercial Travelers 
V. McAdam, 125 Fed. 362, holding no forfeiture where fraternal 
order's council failed to suspend delinquent where constitution pro- 
vided for Immediate suspension and suspension by council; Fergu- 
son V. Providence- Washington Ins. Co., 125 Fed. 142, holding policy 
binding covering loss arising from any cause to boats for which 
tug was responsible where scow sunk without attempt by insured 
to protect; Hurt v. Employers' Liability Assur. Corp., 122 Fed. 831, 
holding requirement of notice within thirty days not condition 
precedent where policy stipulated such with regard to proofs and 
bringing of suit; McClain v. Provident Sav. Life Assur. Soc, 110 
Fed. 86, construing word " warrant " used in application to mean 
given in good faith only; American SS. Co. v. Indemnity, etc, I. 
Co., 108 Fed. 424, holding where separate clauses contradict each 
other insurer's right to deduct % per cent, of aggregate values ap- 
plies only to goods injured; Sudduth v. Travelers' Ins. Co., 106 Fed. 
824, holding on writ of error in action without Jury questions of fact 
not re-examined unless record show written waiver of Jury within 
Rev. Stat, { 649; Fidelity, etc., Co. v. Lowenstein, 97 Fed. 20, hold- 
ing exemption of policy for ** injuries from poison or anything taken 
or inhaled" did not extend to unconscious asphyxiation; Hoyal 
Circle V. Achterrath, 204 III. 560, 68 N. E. 496, holding suicide of 
member of Royal Circle, avoiding policy, would not prevent recoT- 
ery of premium payable to members in good standing; Commercial 
Travelers', etc., Assn. v. Springsteen, 23 Ind. App. 672, 55 N. E. 978, 
construing injuries preventing insured from carrying on barber 
trade to satisfy policy requiring injuries to disable Insured from 
performing any and all kinds of business; Campbell v. Fidelity, 
etc.. Casualty Co. of New York, 109 Ky. 671, 60 S. W. 495, holding 
death at hands of one whom assured assaulted, unless deceased 
realized danger of situation, not ** voluntary exposure to unneces- 
sary danger;" McGannon y. Fhre Ins. Co., 127 Mich. 648, 650, 87 
N. W. 66, 66, 89 Am. St Rep. 511, holding failure to keep watch- 



97 Notes on U. S. Reports. 95 U. S. 679-694 

man on premises as agreed In application, wliere policy was silent, 
was no warranty avoiding pc^icy; Parker v. Railroad, 133 N. C. 342, 
45 S. E. 660, liolding clause in shipping contract, *' subject to delay," 
Inserted without consideration to shipper, void as attempt to limit 
liability for negligence; dissenting opinion in Crew-Levick Go. v. 
British, etc., Ins. Co., 103 Fed. 54, majority holding rider to policy 
for sea carriage, Insuring oil in transit, applies cmly to sea carriage 
and not after oil deliyered to railway; dissenting opinion in M'Master 
V. New York Life Ins. Co., 99 Fed. 878, majority holding interpo- 
lation in policy, entered without consent of insured, may be rejected, 
but when policy accepted becomes binding. See 95 Am. St. Rep. 880, 
note. 

Distinguished in Texas & P. R. R. Ck>. y. Relss, 183 U. S. 626, 46 
L. 360, 22 Sup. Gt 255, holding carrier unloading cotton on own 
pier without notifying connecting carrier not exempt from liability 
as for property awaiting further conveyance. 

95 U. S. 679-694, 24 L. 558, FARRINGTON T. TBNNESSBB. 

Syl. 1 (IX, 323). Executed contracts completed; executory nn- 
p^formed. 

Approved in Northrop v. Mercantile Trust & Deposit Co., 119 
Fed. 973, holding refusal of one party to executory contract to be 
bound thereby gives other immediate rights of action though some 
obligations not yet matured. 

SyL 2 (IX, 324). Impairment applies, executed or executory. 

Approved in Skaneateles W. W. Co. v. Village of Skaneateles, 161 
N. Y. 167, 55 N. E. 565, holding action of city in taxing water 
corporation whose nonexclusive franchise had expired to enable 
city to build new plant violated plaintiff's contract; dissenting 
opinion in Word v. Southern Mut Ins. Co., 112 Gea. 596, 37 S. E. 
902, majority holding restriction in charter preventing insurance 
for more than three-fourths of value not contract precluding subse- 
quent legislative removal of restriction. 

Distinguished in Cooper Hospital v. Camden, 68 N. J. L. 695, 
54 Atl. 421, holding exemption from taxation given in hospital 
charter not enforceable where no proof of acceptance of charter 
appeared. 

8yl. 3 (IX, 324). Requisites of contract 

Approved in dissenting opinion in Citizens' Bank y. Parker, 192 
U. S. 90, 24 Sup. Gt 188, majority holding La. act January 30, 1836, 
I 4, amending bank charter, exempting capital stock from taxation 
prevented license tax for carrying on business. 

Syl. 5 (IX, 325). Capital stock and shares distinct 

Approved in State v. Travelers' Ins. Co., 73 Conn. 275, 47 Aa 306, 
upholding Conn. Gen. Stat, {{ 3836, 3916, taxing corporation and 
Vol II — 7 



I 



\HJ U. S, 694-703 Notes od U. 8. Reports. 88 

shareholders and discriminating between resident and nonresident 
stock bold era; Germ an- American Sav. Bank v. Council, etc., 118 Iowa, 
SC, 91 N. W. S30. holding corporation purchasing nontaxable bonds 
and resolving to hold them as capital stoct, liable to taxes thereon 
under Icwa Code, $ 1322; Illinois Nat. Bank t, Klnsella, 201 III, 45, 
Ofl N. E. 342, upholding under Hurds" Rev. Slat 1899, pp. 1393, 1399, 
1400, 1401, taxation oC shares of stock of bank In hands of Btock- 
liolders and real estate of bank; Allen y. Commoawealtb; Jennings 
V. Same, OS Va. 84, 31 S. E. 082. holding under Va. act February 14, 
1S9S. shares of stock not exempted from taxation, being no part of 
capital of business. 

Syl. 10 (IX. 326). Annual tax In lien excludes otben. 

Approved In Union & Planters' Bank v. Memphis, 189 IT. 8. 
75, 23 Sup. Ct 606, 47, L. 715. holding judgment of State court 
BUPtainIng exernptlon of bank from taxation Is res adjudlcata 
In State and Federal courts only as to taxes litigated; dissenting 
opinion In Freeport Water Co. v. Freeport, 180 U. S. 608, 45 L. 
C!I2, 21 Snp. Ct. 501, majority holding contract giving water company 
unrestricted rigbt to Bx rates not authorized by 111. act April 9, 1872. 

DlstlnguMhed in Union & Planters' Bank v. City of Memphis. 
Ill Fed. 504, 5Ki, oflO, holding provision in Tennessee bank charter 
t'ciiulrlng annual tax of <^ per cent, on each share subscribed 
in lieu of other taxes applies only to stockholders; City of 
Newport v. Commonwealth, 106 Ky, 453, 51 S. W. 435, holding 
judgment exempting corporation from taxes for one year not res 
adjudlcata as to suits Involving taxes of another year. 
95 U. S. 694-007. 24 L. 540. THOMPSON v. BUTLER. 

Syl, 3 <1X. 327). Court presumed not to defeat appeal. 

Approved In Ward v. Evans, 49 W. Va. 187. 33 S. E. S24, holding 
refusing writ of prohibition to restrain enforcement of Judgment 
for Ii;sa than appealable amount. 
95 U. S. 6!)7-703. 24 L. 542. RAILROAD V. HOUSTON. 

Syl. 1 (IX. 328). Railroad's negligence does not relieve traveler. 

Approved In Erie R. R. Co. v. Kane, 118 Fed. 234. holding violation 
or known rule of employer. If contributing to injury, la contributory 
uegUpi-'uee In law; Chicago, etc.. R. R. v. Rossow, 117 Fed. 493, hold- 
ing contributory negligence In law where deceased with eyes and 
ears covered with coat drove upon crossing without looking or 
listening; SloUII';, etc., R, R.Co. v.Coerver, 112 Fed. 494, holding man 
familiar with crossing, knowing of presence ot switching freight 
train, driving on track on walk without stopping or looking con- 
eiUHively couirlbutorlly negligent; Neinlnger v. Cowan, 101 Fed. 791, 
holding negligence of company In omitting to keep watchman 
gave uo excuse of action to plaintiff where latter made no attempt 
to see approaching train; Nelson v. New Orleans, etc, B. B. Co., 100 



99 Notes on U. S. Reports. 95 U. S. 697-703 

Fed. 737, holding not negligence as raatter of law where deceased 

carrying mortar for company was killed crossing track by train 

rounding turn at forty miles an hour; Chesapeake, etc., By. v. King, 

99 Fed. 256, holding passenger alighting from train and using usual 

means of egress must use ordinary care; Stowell v. Erie R. R., 98 

Fed. 523, holding negligence of plaintiff in driving upon double 

traelk behind passing trains without waiting, to view track bars 

recovery for injuries; St Louis, etc., R. R. Co. v. Mrs. Kams, 66 Kan. 

S04, 72 Pac. 235, holding for defendant where deceased walking 

east was struck by west-bound train which with use of faculties he 

conld liave seen; Holiverson v. St Louis, etc., Ry. Co., 157 Mo. 229, 

57 S. W. 773, holding no recovery tliough motorman negligent if 

Dot willfully so where deceased walked upon track without looking 

or listening; Gahagan v. Railroad, 70 N. H. 449, 50 AU. 150, holding 

negligence in law where plaintiff on clear day with unobstructed 

^ew of track for 400 feet was injured in crossing; Silcock v. Rio 

^fande, etc., R. R. Co., 22 Utah, 191, 61 Pac. 668, holding recovery 

'or loss of team barred by owner's negligence in leaving them near 

^'^k, knowing of passing train; Silcock v. Rio Grande, etc., R. R. 

^•» 22 Utih, 188, 61 Pac. 667, holding recovery for loss of team pre- 

<^lQ(led by owner's negligence in leaving them standing near track, 

^o\^ing of passing train; dissecting opinion in Southern Electric 

^y* Co. V. Hageman, 121 Fed. 273, upholding instructions on con- 

^<^ting evidence motorman's duty to take necessary steps to avoid 

^^Ulsion and if motorman could have averted accident plainfilTs 

^^Sligence bo bar. 

Syl. 2 (IX, 330). Traveler barred by contributory negligence. 

A^pproved in Baltimore & Potomac R. R. v. Cumberland, 176 U. 
S* 241, 44 L. 452, 20 Sup. Ct 383, holding person crossing tracks 
on level with street may do so anywhere and not be ipso facto negli- 
S^Uce, question being for Jury; Gilbert v. Burlington, etc., Ry., 128 
^©tl. 533, 536, denying recovery for injury received in uncoupling cars 
^ going between them instead of using lever provided for that 
P^irpose; Dunworth v. Grand Trunk, etc., Ry., 127 Fed. 309, holding 
8treet-car conductor negligent where in looking for approaching train 
^ one direction he stood on track and was killed by train from 
otlier direction; Hemingway v. Illinois Cent R. R., 114 Fed. 848, 
liol^ng no negligence in law where travelers looked and listened and 
approached slowly on dark night and were struck by train at 
excess speed; State Trust Co. v. Kansas City, etc., Ry. Co., Ill Fed. 
^X, holding negligence in law in employee deliberately walking 
over trestle toward approaching engine instead of remaining on 
switch; M'Cann v. Chicago, etc., Hy., 105 Fed. 483, holding negli- 
S^nce in law where plaintiff stood between tracks knowing trains 
^^t there leaving only twenty inches space between; Gilbert v. Erie 
^ B., 97 Fed. 749, holding recovery for death of decedent killed by 



05 U. S. 704-700 NutL'S on U. S. Reports. 100 

train wbere deceased approached crosBlng In covered Dnggy alta 
seeing train; I-ake Erie, etc., B. B. Co. v. Pence, 24 Ind. App. 21, 
55 N. E. 108S. holiling recovery barred by negligence In deliberately 
croEsing abead of approaching train though train exceeding statu- 
tory Bpeed; Day v. Boston, etc., R. R. Co., 9T Me. 533, 55 Atl. 422. 
Iiotdiag DO recovery where plaintiff saw or heard approaching train 
but overestimated distance and tried to cross: Glllitand v. Mid. & 
Somerset Tract Co., G7 N, J. L. 545. 62 Atl. 094, holding contribu- 
tory neellgence In law where deceased trying to cross in front o( 
Btreet car tripped on rail and was run over; Carter v. Central Ver- 
mont R. R. Co., 72 Vt. 1S5, 47 AU. 79S. holding negligence In law 
wbere plaintiff, a stranger, seeing sign at crossing deliberately 
drove upon track, although train gave no signals. 

SyL 3 (IX. 332). Court dlr^U verdict where negUgence nndls- 
puted. 

Approved In Gilbert v. Burlington, etc. By., 128 Fed. 636, refus- 
ing recovery for brakeman's injuries received In uncoupling cara 
where plaintiff went between cars instead of using lever for that 
purpose; Gilbert v. Erie B. R., 07 Fed. 750, holding approaching 
crossing In covered buggy after seeing approaching train contribu- 
tory negligence barring recovery; Woldron v. Railroad, 71 N. H. 3G4, 
52 Atl. 445. holding contributory negligence In law where plaintiff 
approached track without looking, evidence showing track visible 
200 feet and disclosing ringing of bell and whistling. 

Distinguished in Swift v. Langbein, 127 Fed. 114, sustaining 
refusal to instruct that plalnt'tt was contrlbutorlly negligent where 
to walking over sidewalk obstructed during repair of building, be 
stepped into cellar hole; Southern Pac. Co. v. Harada, 109 Fed. 380, 
holding where no signal given by train, traveler crossed track look- 
ing and listening, questions of negligence Cor Jury. 

Syl. 4 (IX, 333). Instructions on assumed facta erroneous. 

Approved Id St. I.ouls, elc., Ry. Co. v. Woodward, 70 Ark. 443, 
60 S. W. 56, holding where no evidence as to engineer's care. Instruc- 
tion based thereon v 



95 U. S. 704-709, 24 L. 586, NBAL v. CLARK. 

SyL 3 [IX. 334). Fraudulent debts only exempted from discharge. 

Approved In Forsyth v. Vehmeyer, 177 U. S. 181, 44 L, 725, 20 
Sup. Ct 625. holding representations that borrower has wood piled 
and under contract of sale Is found against which bankruptcy act 
1867, does not relieve; Bear v. Chase, 09 Fed. 927, upholding under 
bankruptcy act 1898, S 119. action of Bankruptcy Court In restrain- 
ing attaching creditors; Bryasit v. Klnyon, 127 Mich. 156, 86 N. W. 
532, holding defendant appropriating proceeds of wood previously 
sold to him by plalntlCT, title to remain In vendor till price paid, 
discharged by bankruptcy under bankruptcy act 1888, i 11; Good- 



IDl r-^tes on U. S. Reports. 96 U. S. 710-74S 

man ▼. Herman, 172 Mo. 357, 358, 72 8. W. 650, holding debt arising 
from sale of merchandise induced by fraud not within exemption of 
bankruptcy act 1S98, { 17. 

Distinguished in Western Union, etc., Storage Ck>. T. Hurd, 116 
Fed. 443, holding commission merchant's refusal to return overpay- 
ment to plaiutiflT not debt created by fraud exempted, bankruptcy* 
act 180S, S 17a; Braclsen v. Milner, 104 Fed. 526. holding failure of 
agent intrusted with money to be loaned on approved securities 
and proceeds and interest remitted, to remit not a debt discharged 
under bankruptcy act 1898, { 17; In re Basch, 97 Fed. 761, holding 
debt due by bankrupt a^ commission merchant not excepted from 
exemption of bankruptcy statute; Gee v. Gee, 84 Minn. 387, 87 N. W. 
lin, holding misappropriation of money by partner not charged 
with trust, not within exemption of Minn. 30 Stat 550, { 17, els. 2,4. 

95 U. S. 710-714, 24 L. 544, KELLY v. CALHOUN. 

Syl. 1 (IX, 335). Acknowledgment — Substantial statutory com- 
pliance enough. 

Approved in Hurst v, Leckie, 97 Va. 563, 75 Am. St Rep. 809, 
34 S. E. 469, upholding under Va. Code, § 2501, acknowledgment 
before ** commissioner in chancery " without stating in court of 

fecord. 

SyL 3 (IX, 336). AcknowJedgment — Personally known equals 
personally acquainted. 

Approved in Deseret Nat Bank v. Kidman, 25 Utah, 386, 71 Pac 
875, 95 Am. St Rep. 856, upholding acknowledgment of chattel 
mortgage reading "personally appeared before" instead of "per- 
sonally known to *' prescribed by Rev. Stat Idaho, { 2958. 

95 U. S. 714^748, 24 L. 565, PENNOYER v. NEFF. 

SyL 1 (IX, 337). Courts' authority limited to State's territory. 

Approved in Wilson v. Braden, 48 W. Va. 198, 36 S. E. 367, hold- 
ing trustee appointed or substituted in Maryland cannot sell or 
convey under decree of such court land situated in West Virginia. 

Syl. 2 (IX, 337). Deficient publication affidavit reviewable on 
appeal. 

Approved in George v. Nowlan, 38 Or. 543, 64 Pac. 3, holding 
under Hill's Anno. Laws Or. § 56, affidavit of summons by 
publication stating intent to sell land described in complaint not 
collaterally attackable. 

Syl. 5 (IX, 337). State has exclusive Jurisdiction within territory. 

Approved in Overby v. Gordon. 177 U. S. 22, 44 L. 745, 20 Sup. 
Ct (X)0, holding adjudication of domicile of decedent by Georgia 
court of no effect upon court of District of Columbia where con- 
test arose over property situated there; Watertown v. Greaves, 112 
Fed. 184, upholding separate domicile of deserted wife where ac- 



B5 D. S. 714-748 Notes on D. S. Reports. 102 

quired piirBuant to laws of domiciliary State; Wllley t. St. Charlca 
Hotel Co.j etc.. 52 La. Ann. 1593. 28 So. 187, holding La. act 18i»4. 
No. 180, reiiuIrlDg owners of bultdloga to see that anbcontractors 
and materialmen were secured, extended to workmen In and out 
of State; dlBeenting opinion In Crim v. Crim, 162 Mo. 503, 63 S. W. 
4^ majority upholding judgment confessed in Missouri court pur- 
suant to power given In Ohio to confeas Judgment without process 
anywhere In United States, 

Syl. a (IX. 337). State's power OTCr realdents' extraterritorial 
acts. 

Approved in Schmaltz v. Yorit Mfg. Co., 204 Fa. St. 13, 63 AU. 
628, 83 Am. St. Rep. 786, upholding Injunction of Pennaylvanla 
court having Jurisdiction over parties, to prevent removal by de- 
fendant of mortgaged refrigerator situated In New York. 

SyL 7 (IX, 337), Nonresidents' property subjected to residents' 
demands. 

Approved In Roller v. Holly, 17G U. S. 406, 44 L. 523, 20 Sup. Ct 
412. upholding under Tex. Code, art. 1230. suit against nonresident 
to enforce equitable lien for purchase price of land; Johnson v. 
Hunter, 127 Fed. 224. uphoiding Acta Ark. 1395. p. 88, No. 71, author- 
izing sale of nonrc-sl dent's land for unpaid taxes on four weelia' pub- 
lished notice; Connor v. Tennessee Cent. Ry., 109 Fed. 936, up- 
holding right of State to provide publication of notice to non- 
resident of suit to enforce lien on their property situated In Juris- 
diction; Guarantee Trust, etc., Co. v. Delta, etc., Co., 104 Fed. 9. 
' holding writ of assistance if Issued by Tennessee court to compol 
transfer of land in Mississippi would be Inoperative; Otsen v. liirL'Ii. 
etc., Co., 133 Cal. 483. 6o Pac. 1033. holding action brought against 
owner of vessel by name to recover for services, and summons 
served upon' him, action in personam, though vessel be attached; 
Goldmark t. Magnolia Metal Co., 65 N. J. L. 345, 47 Atl. 722, up- 
holding attachment of property of West Virginia corporation under 
N. J. Gen. Stat., p. 99, i 7; Paper Co. v. Shyer, 108 Tenn. 430, 463, 
87 S. W. 857, 8G0, holding unconstitutional Shannon's Tenn. Code, 
i 5298, authorizing personal Judgment beyond value of property in 
Jurisdiction, against nonserved. nonappearlng. nonresident corpo- 

Dlstlnguished In Wall T, Norfolk, etc., R. R.. 52 W. Va. 490, 44 
S. E. 296, 91 Am. St. Rep. ^2, holding rolling stock of foreign 
railroad in State under contract arrangement with domestic rail- 
road not subject to garnishment 
Syl. 8 (IX, 338). Resident remediless where nonresident property- 
Approved In Paper Oo. v. Shyer, 108 Tenn. 454, 67 S. W. 858, S59, 
holding unconstitutional Shannon's Tenn. Code, ) S29S, authorizing 



J 



105 Pennoyer v. Neff. 95 U. S. 714-748 

personal Judgment beyond value of property within Jurisdiction, 
against non served, non appearing, nonresident corporation. 

Distinguished in Roller v. Holly, 176 U. S. 402, 44 L. 522, 20 Sup. 
Ct 411. upholding under Tex. Code, art. 1230, suit against non- 
resident to enforce equitable lien for purchase price of land; Crlm v. 
Crim, 162 Mo. 560, 63 S. W. 491, 493, upholding Judgment In 
Aflssonri court confessed In note given in Ohio where defendant 
gave attorney power to waive process and sue anywhere in 
VDited States. 
Syl. 9 (IX, ^39). State cannot act extraterrltorlally In personam. 
Approved in Moredock v. Kirby, 118 Fed. 182, 183, 184, 186, hold- 
^^8 Ky. Civ. Proc, { 51, does not confer Jurisdiction to ren/^er 
money Judgment for slander on constructive service on nonresi- 
dent defendant; Guarantee, etc., Co. v. Delta, etci, Co., 104 Fed. H% 
110, upholding Jurisdiction of Federal court In Tennessee by decroe 
^^ personam against resident to quiet title to land In Mississippi, 
though court cannot transfer land; Ralya Market Co. v. Armour Ac 
^'* 102 Fed. 532, holding nonresident member of partnership can- 
not be bound on contract Judgment where service made on agent of 
P^^nership; Reynolds & Hamby Co. v. Martin, 116 Ga. 498, 4:^ 
®- ^. 797, 708, dismissing petition for receiver against foreign cor- 
porations not setting forth corporate agents or place of businew* 
^^tihln Jurisdiction; First Nat Bank of Huntington v, Henry, 156 
?*^^. 5, 58 N. B. 1069, holding pledgee of notes cannot get Juris- 
r^^^tion of payee by publication where latter has departed, to forcf 
5^^^ to indorse notes as agreed; Fisher v. Parr, 92 Md. 272, 48 Atl 
^^^, holding in suit against corporation directors for mismanage- 
^T^^nt failure to Join nonresident directors upon whom service im- 
ssible, not demurrable; Hinton v. Penn Mut. Life, etc., Co., 126 
- C. 24, 78 Am. St Rep. 040, 35 S. E. 183, holding void Judgment 
t up by Insurance company against assignee's claim, where Judg< 
«Dt of Insured was obtained against nonresident company by 
Xablication of service; Emanuel v. Ferris, 63 S. C. 121, 41 S. E. 25, 
^^ elding foreign corporation taking trust moneys outside State not 



bought within Jurisdiction by publication of summons and per- 

^^nal service; Netzorg v. Green, 26 Tex. Civ. 121, 62 S. W. T90, 

*^olding insufficient for failure to state cause of action according 

"^^ Tex. Civ. Stat, art. 1235, citation by publication of nonresident 

defendant, in action to foreclose tax liens; Greiner v. Ogden Ry. 

Oo., 21 Utah, 163, 60 Pac. 549, holding nonresident defendant not 

Viable in action for negligently causing death where no personal 

service was made upon him; Smith v. Smith, 74 Vt. 23, 93 Am. St. 

Bep. 884, 61 Atl. 1061, holding money of nonresident defendant as 

heir not subject to Judgment for alimony where service was by 

publication; dissenting opinion in Figge v. Rowien, 185 111. 241. 57 

N. B. 197, majority upholding decree of Illinois court foreclosing 



95 U. S. 714-748 Notes on U. S. Reports. 104 

mortgage against nonresident, service being made by publication; 
dissenting opinion in Felt v. Felt, 59 N. J. Eq. 611, 83 Am. St Hep. 
619, majority holding defendant bound by decree of divorce though 
a nonserved nonresident where latter had adequate notice of pend- 
ency of action. 

Distinguished in Abbeville Electric, etc., CJo. v. Western Electri- 
cal, etc., Co., 61 S. G. 369, 39 S. E. 562, 565, holding under S. G. Gode^ 
Glv. Proc, S 155, service on traveling agent within Jurisdiction 
sufficient service on foreign corporation with no resident agent 

Syl. 10 (IX, 343). Nonresident served by publication in rem. 

Approved in Sutherland-Innes Go. v. American, etc., Go., 113 Fed. 
187, denying money judgment set off against similar Judgment, 
both corporations being nonresident, for Wis. Rev. Stat 1898, 
S 2G39, applied only to Judgments in rem; Rothschild v. Knight 17G 
Mass. 53, 55, 57 N. E. 337, 338, upholding attachment of debts by 
trustees where debtors though nonresident voluntarily came into 
court without process; Tyler v. Gourt of Regristration, 175 Mass. 75, 
55 N. E. 813, upholding registration act Stat 1898, chap. 562, cutting 
off possible adverse interest in land claimed by publication of notice 
mailed to Isinown and posted for unlcnown claimants; Oil Well Sup- 
ply Go. V. Koen, 64 Ohio St. 430, 432, 60 N. E. 604, holding action to 
enforce collection of debt by attachment of property where owner 
is nonresident is in rem and confined to State; Benner v. Benner, 
63 Ohio St 225, 226, 58 N. E. 571, allowing service by publication 
under Rev. Stat, { 5048, in action by wife to subject husband's 
property, within Jurisdiction, to payment of alimony; Bank of Golf ax 
T. Richardson, 34 Or. 523, 524, 75 Am. St Rep. 668, 669, 54 Pac. 360, 
361, upholding from collateral attacl^ Judgment against nonresident 
where attachment of property in Oregon according to Oregon law; 
Gunnins v. School Dlst 206 Pa. St 474, 56 Atl. 18, 19, upholding 
Pa. Pub. Laws, 155, providing for grant of administration on prop- 
erty of persons presumed, to be dead. See 76 Am. St Rep. 805, note. 

Syl. 11 (IX, 345). Judgment's validity depends on prior juris- 
diction. 

Approved in Ghurch v. Town of South Kingston, 22 R. I. 385, 
48 Atl. 4, holding void proceedings under General Laws Rhode 
Island providing for nonjudicial commission appointed by court to 
provide for paupers. 

Syl. 12 (IX, 346). Federal recognition of State court's Judgments. 

Approved in Gady v. Associated Golonles, 119 Fed. 424, holding 
constructive service on corporation under Gal. Stat & Gode Amend. 
1899, p. Ill, not binding in Federal courts where corporation 
not operating in State; Union & Planters' Banik v. Gity of Memphis, 
111 Fed. 572, holding where Judj^ment exempting from taxes is by 
State court res adjudlcata as to that year only Federal courts glTe 



yjO Pennoy^ t. Neff. 86 U. S. 714^-748 

same tfect; Dunn t. Dilks, 81 Ind. App. 681, 68 N. E. 1037, holding 
personal service on nonresident of Pennsylvania necessary to make 
snch conrfs judgment on note enforceable In Indiana; Fred- Miller 
Brewing Co. v. Capital Ins. Co., Ill Iowa, 600, 82 N. W. 1020. 
holding Wisconsin judgment entered by clerk In default after proper 
procedure, under Rev. Stat Wis., { 2891, is judicial act entitled to 
recognition In this State; Boyle v. Mussen-Sauntry, etc., Co., 88 Minn. 
465, 93 N. W. 523, holding ** full faith and credit " clause inap- 
puicable to judgments of court of new State against nonresident 
debtor not personally served or appearing; Commonwealth, etc.. 
Ins. Co. V. Hayden, 61 Nebr. 457, 85 N. W. 444, holding assessment 
by court upon stockholder of insolvent corporation conclusive judi- 
cial determination only to extent of ascertainment of assets and 
liabilities and necessity for assessment; Paper Co. v. Shyer, 108 
Tenn. 462, 67 S. W. 860, holding unconstitutional Shannon's Tenn. 
Code, S 5298, authorizing personal judgment beyond property in 
jurisdiction against nonserved, nonappearing, nonresident corpora- 
tion. See notes, 94 Am. St. Rep. 533; 85 Am. St. Rep. 913. 

Distinguished in Kilmer v. Brown, 28 Tex. Civ. 422, 67 S. W. 1092. 
holding record reciting heirs nonresident and unknown was suffi- 
cient showing, and that personal judgment based on service by 
publication was void. 

Syl. 13 (IX, 346). Jurisdiction not questionable In collateral 
action. 

ApiMTOved In POTter v. Orient Ins. Co., 72 Conn. 528, 45 Atl. 10. 
allowing plaintiffs, nonresident parties, to set up In collateral ac- 
tion that prior judgment In their favor foreclosing lien was set 
aside without their knowledge; Elmendorf v. Elmendorf, 58 N. J. 
Bq. 115, 44 Atl. 165, holding void for lack of due process decree for 
alimony in divorce suit where defendant was nonresident and not 
personally served. 

Syl. 14 (IX, 347). "Due process" — Tribunal — Service on ap- 
pearance. 

Approved in Kirk v. United States, 124 Fed. 339, granting in- 
Junction restraining marshal for district of New York from levying 
execution where validity of process by constructive service issued in 
Georgia was doubtful; Cady v. Associated Colonies, 119 Fed. 424, 
holding constructive service on corporation, under Cal. Stat. A: 
Code Amend. 1899, p. Ill, not binding in Federal courts where cor- 
poration not operating in State; Ex parte Strieker, 109 Fed. 150, 
holding summarily fining and Imprisonment for contempt where 
act done was attempt to elect judge In absence of regular judge 
not due process of law; Millan v. Mutual, etc., Life Assn., 103 
Fed. 769, holding where defendant corporation revoked agent's au- 
thority and withdrew from State no action could be brought on 
policy In Virginia court; Hunger, Admr. v. Doolan, 75 Conn. 659, 



. Reports. 

lis Atl. ITO. holding void personal Judgment rendered ngalnst one 
abseut from Jurisdiction thirteen years and sued as nonresident 
and not appearing; Parka t. State, 150 Ind. 218, ft4 N. E. S65. 
upholding Ind. Rev. StaL 1001, i 7323c, prohibiting practice of 
medicine without llcenae; Dunn t. Dllks, 31 Ind. (J80, 68 N. E. 1037, 
1038, holding unenforceable In Indiana Judijment on note by 
Pennsylvania court where defendant was nonresident of Pennsyl- 
vania and not personally served; Griffith v. Gross. 108 Ky. 163, 55 
8. W. 1077. upholding Ky. Stat., SI 2500. 2501, 2502, providing for 
agister's lien on cattle enforceable by warrant and distress, as in 
case of rent; Cabanne v. Graf, 87 Minn. 513, 92 N. W. 461, 04 Am. 
St Kep. 724, bolding unconstitutional portion of Minn. Laws 1901, 
chap. 278, providing for service on agent of nonresident without 
seizing property In Jurisdiction; Hunt v. Searcy. 167 Mo. 182, i37 
8. W. 213, 214, holding void Mo. Rev. Stat 1845. { 593, and Rev. 
Stat. 1879, p. 1133, S 5789, providing proceedings of Insanity dis- 
pensing with notice to insane; Matter of Klllan, 172 N. Y. 558. (15 
N. E. 564, holding nonresident brother and next of Icln of Intestate 
not cited to appear not bound by settlement of administrator's ac- 
counts; Lynde v. Lynde, 1G2 N. Y. 412, 76 Am. St Rep. 334, 5G 
N. E. 781, holding where nonresident defendant appears to oppose 
amendment of divorce decree granting alimony court has Juris- 
diction to make valid Bnal decree; Hood River L. Co. v. Kasco 
County, 35 Or. 506, 57 Pac. 1010, holding Or. Sess. Laws 1889, p. 105, 
I 81, for condemnation of stream, void on ground that adjoining 
owners given no complete right to defend seizure by viewers there- 
under; Simmons V. Telegraph Co., 63 S. C. 429, 41 S. E. 522, up- 
holding 23 Stat at iJirge, p. 748, authorizing actions against tele- 
graph companies for mental anguish; Paper Co. v. Shyer, 108 Tenn. 
457, 67 S. W. ^9, 860, 861, bolding nnconstituUonal Tenn. Code, 
I 5298, authorizing personal Judgment beyond value of property 
within Jurisdiction against nonserved, nonappearlng. nonresident 
corporation; Kilmer v. Brown. 28 Tex. Civ. 422, 67 S. W. 1092, 
holding record reciting that heirs of M. were nonresident and un- 
known was sufficient showing, and that persouaJ Judgment based 
on service by publication was valid; Jennings v. Rocky Bar, etc., 
Co., 20 Waah. 730, 70 Pac. 138, holding where parties and property 
are within Jurisdiction of court It will adjudge plaintiff owner of 
stock though transferrer receives constructive service; dissenting 
opinion In Hendrys v. Perkins, 114 Fed. 824. majority holding bill 
to vacate prior decree, charging fraud and showing only mistake, 
not sustained by proof; dissenting opinion in Barnett v. State, 42 
Tei. Cr. 311, 62 S. W, 770, upholding, under Tei. Code Crlm. Proc., 
nrt. 723. failure to Instruct that prosecutrix must show all possible 
resistance where resistance was successfuL See notes, 66 Ajb. 
St Rep. 907; 83 Am. St Bep. 819. 



i 



Notes on U. S. Reporta, 



95 L'. S. 74S-7r.!) 



SjL 16 (IX, 347). ProceeHling In rem to reacb property. 
Approved In State ei rel. Atkinson v. McDonald, 108 Wis. 14, 84 
N', W. 178. bolding In action in Wisconsin, laying title to office of 
limher inspector, records ot MIoQesota court declaring citlsensblp 
of defendant conclaslve. 
Sfl. IS (IX. 34S>. Statoa proceedings requiring no notice. 
Approved In AlhM-ton v. Athprton, ISl U. S, 1G3. 45 L. 800, 21 
Sup. CL 547, holding actual notice of divorce proceedings need 
lot be given nonresident defendant to bind her by decree, if rea- 
Miiable efforts made to give etatutcry notice. 
Sjl 18 (IX, 348). State requiring nonresident to appoint agent. 
Distinguished In Planey v. Providence Loan, etc., Co., 106 Wis. 
^, S2 N. W. 309, bolding Told Rer. Stat., t 1775b, authorizing 
'sfvlce on private corporation by copy leTt with register of deeds, 
"ot being due process. 
* V. S. 748-750. Not cited. 

"5 V. S. 750-753. 24 L. 579. UNITED STATES T. M'LEAN. 
^yL I (IX, 349). ReadjuBtment of salary necessary to increase. 
Approved In United Slates t. Ewing. 184 D. S. 148, 48 L, 474, 
^ Sup. Ct. 4S3, holding readjustment of postmaster's salary tabes 
^^ect under 24 Stat, at Large. 256, 307, at begiuulug of ensuing 
loarter, 

^ D. S. 754-759, 24 L. 580. INSURANCE CO. v. BHAMB. 
Syl. 1 (IX, 350). No common-law action for death. 
Approved In The Albert Duniols. 177 D, S. 259,' 44 L. 761, 20 
^Qp. Ct. 602, holding no lien upon vessel for Iobb of passenger'a 
lire created by La. Civ. Code, art 3237, subd. 12. providing dam- 
age Cor negligence of vessel; Thompson v. Chicago, etc., Ry., 104 
I''ed. 647, denying recovery for death of son In action, under 
Comp. Stst Nebr. 1897, chap. 21, where father had deserted fam- 
ily; Rundell v. La Campaguie, etc., 100 Fed. 659, holding, under 
maritime law. no action lies for death caused by negligent col- 
lision of ships; Major v. B. C. R. & N. Ry. Co., 115 Iowa, 311, 
88 N. W. 815, holding wife can maintain no action for wrongful 
death of husband at comaion law, nor under Iowa Code.gs 3443-3445: 
Rodman v. Railway Co., 65 Kan. 650. 70 Pac, 644, holding com- 
pletion of period of Kan. Civ. Code, f 422, Cor bringing action 
for death by wrongful act, barred right; Brink v. Wabash R. R. 
Co.. leO Mo. 92, 94, 60 S. W. 1059, 1000, denying recovery by 
parents of adult son in action based on prevention of son's contract 
to maintain parents by company's negligence causing bis death. 
SyL 2 (IX, 351). Company's Injury from killing Insured remote. 
Approved In .SJtna Life Ina. Co. v. Parker, 96 Tex. 204, 72 S. W. 
tea, holding accident insurance company not subrogated to righta 
of insured against railroad company for injuries. 




85 U. S. 760-764 Notes on U. S. Reports. 108 

95 r. S. 760-764, 24 L. 688, UNITED STATES V. MOORB. 

Sjl. 3 (IX, 351). Statutory construction by executive officers 
weighty. 

Approved in Fairbank v. United States, 181 U. S. 308, 45 L. 872, 
21 Sup. Gt. 658, construing stamp act, imposed by 30 Stat, at Large» 
451, chap. 448, upon foreign biils of lading as tax on exports 
within U. 8. Const, art 1, { 9; United States v. Dietrich, 126 
Fed. 676, holding postmaster elected to Ck)ngress not liable, under 
Rev. Stat, { 3739, since postmaster contract terminates by opera- 
tion of law; Interstate Com. Comm. v. Southern Pac. Co., 123 
Fed. 603, holding order of interstate commerce commission that 
railroad's practice of routing through freight was not bona fide 
and should discontinue prima facie lawful; Northern Pac. Ry. 
V. Soderberg, 104 Fed. 427, holding land valuable for granite de- 
posits, mineral land, within exemption clause of railway grant; 
Corning v. Board of Comrs., 102 Fed. 61, upholding, under Laws 
Kan., chap. 63, { 1, bond issue of county commissioners where 
petition for submission and call for election issued within year 
for county organization; McFadden t. Mountain View Biin., etc, 
Co., 97 Fed. 677, holding 27 Stat 62, restoring to public domain 
lands of ColviUe Indian reservation on proclamation of president, 
did not open for settlement before such proclamation; De Weese 
V. Smith, 97 Fed. 317, holding comptroller of currency has power 
to levy but one assessment upon national bank stockholders; 
City of Indianapolis v. Ritzinger, 24 Ind. App. 72, 56 N. E. 143, 
upholding, under act March 14, 1867, vacation by city council of 
unimiiroved portion of city under procedure of Bums' Rev. Stat 
1894. § 4416; State v. United States Fidelity, etc., Co., 93 Md. 
318, 48 Atl. 920, holding tax guaranty company within State, au- 
thorized by Md. Code, art 81, § 146, applies only to gross 
receipts of business done within the State; O'Connor v. Gertgens, 
85 Minn. 495, 89 N. W. 871, construing term ** bona fide purchas- 
ers " to include one who occupied unoccupied land as homestead 
and made valuable improvements thereon, believing no railway 
claim existed; Daniel v. Simms, 49 W. Va. 567, 39 S. E. 695, 
upholding election officers' construction of "ballot," under W. Va. 
Code, chap. 3, § 34, as one column of ballot sheet. 

Distinguished in Interstate Commerce Comm. v. Cincinnati, P. 
& V. R. R. Co., 124 Fed. 630, overruling suit by interstate com- 
merce commission to prevent lower rates to competitive points in 
north than to isolated points south of Norfolk and Virginia; 
dissenting opinion in Park v. Candler, 114 Ga. 500, 40 •S. E. 538, 
upholding, under paragraph 1, section 12, article 7 Georgia Constitu- 
tion, legislative act providing for expenditure of State money in 
payment of interest on bonded debt 



109 Notes on U. S. Reports. 96 U. S. 764-781 

96 U. S. 764-768, 24 L. 589, YEATMAN v. SAVINGS' INSTI- 
TUTION. 
8yL 1 (IX» 853). Assignee in tMinkraptcy subject to liens. 

Approved in First Nat Bank v. Penusylvania Tmst Co., 124 
Fed. 970, upholding bank's lien on steel billets conveyed by com- 
pany for advances made, though signs indicating bank's owner- 
ship were temporarily removed; In re Goldsmith, 118 Fed. 766, 
767, holding mortgagee intervening to subject property, sold under 
bankmptcy proceeding to his lien, need not make proof except 
83 In ordinary suit; In re Standard Liaundfy Co., 116 Fed. 478» 
upholding mortgage on personalty sold subject thereto to one 
thereafter becoming bankrupt, holding trustee estopped; Duplan 
Silk Co. y. Spencer, 115 Fed. 695, holding trustee not entitled to 
possession of building materials covered by owner's lien for ad- 
vances made contractor; In re G&rcewich, 115 Fed. 89, holding, 
onder bankruptcy act, | 70, title to goods sold bankrupt on credit, 
title to such as bankrupt retained to remain in vendor, vested in 
tnistee; Lynam v. National Bank, 98 Me. 458, 57 Atl. 801, holding 
bank knowingly taking deposit for safe-keeping, intended ultimately 
^or benefit of depositor's creditors, is trustee and cannot set off 
debt against depositor; Taylor v. Taylor, 59 N. J. Bq. 88, 45 AtL 
^ upholding lien of Judgment creditor under Judgment obtained 
^tore bankruptcy; Sheldon v. Wickman, 161 N. Y. 506, 55 N. B. 
^^7, upholding as against assignee, under N. Y. Laws 1858, 
^^ap. 314, chattel mortgage on machinery, although it had not 
*>een filed. 

^^ IT. S. 769-774, 24 L. 546, UNITED STATES v. CLARK COUNTY. 

(IX«354.) Miscellaneous. 

approved in United States v. Saunders, 124 Fed. 128, upholding 
power of municipal officers, under Comp. Stat. Nebr. 1901, i 1282c^ 
Bubds. 1, 2, 19, to levy taxes to pay municipal bonds. 

% U. 6. 774-78L Not cited. 



XCVI UNITED STATES. 



96 U. S. 1-24, 24 L. 708. PBNSACOLA, BTC. TEL CO. V. WEST- 
ERN, ETC., TEL. CO. 

Sjl. 1 (IX, 356). Congressional power over commerce. 

Approved In Barker y. State, 118 Ga. 40, 44 S. E. 876, holding local 
act prohibiting sale of liquor otherwise than through medium of 
State dispensary Is prohibitory law within Penal Code, { 428. 

SyL 2 (IX, 356). Telegraph an instrument of commerce. 

Approved in Champion v. Ames, 188 U. S. 350, 23 Sup. Ct'324, 825, 
47 L. 499, holding carriage of lottery tickets from one State Into an- 
other by express company, interstate commerce which Congress 
may regulate; Muskogee Nat Tel. Co. v. Hall, 118 Fed. 384, 385, 386, 
holding Indian nation cannot grant exclusive telephone franchise 
such being regulation of interstate commerce; State v. Cauda Cat- 
tle Car Co., 85 Minn. ^0, 89 N. W. 67, holding State may tax foreign 
corporation tn freight line industry, but such tax must be uniform 
with that imposed upon other property; State v. Western Union 
Tel. Co., 165 Mo. 519, 65 S. W. 778, holding telegraph company 
organized in another State though constituted agent of government 
for transmission of messages subject to State franchise tax; Postal 
Tel. Co. V. Richmond, 99 Va. 107, 86 Am. St. Rep. 881, 37 S. E. 791, 
holding void tax levied on telegraph company by city In excess of 
authorized tax by city and made conditions precedent to doing 
business. 

Distinguished in Williams v. Fears, 110 Ga. 691, 86 S. E. 701, 
upholding Ga. tax act 1898, imposing tax upon "emigrant agents,** 
persons hiring laborers for service elsewhere. 

Syl. 3 (IX, 359). Government legislating for whole country. 

Approved in Western Union Tel. Co. v, Penn. R. R. Co., 120 Fed. 
984, holding railroad not entitled to oust telegraph company from 
former's right of way since railroads by Rev. Stat, { 3964, are post- 
roads; dissenting opinion in Austin v. Tennessee, 179 U. S. 373, 45 
L. 238, 21 Sup. Ct. 143, majority upholding Tenn. Acts of 1897, chap. 
30, prohibiting and punishing for distributing cigarettes, as valid 
police regulation. 

Syl. 6 (IX, 360). Act 1866 requires owner's consent 

Approved in Western Union Tel. Co. v. Ann Arbor R. R. Co., 178 
U. & 243, 44 L. 1054, 20 Sup. Ct. 869, holding defective bill for spe- 

[110] 



Ill Notes on U. S. Reports. 96 U. S. 24-36 

cific performance, contract giving right of way, averring only right 
to use way " under statute of United States;*' Anglo-Gal. Bank v. 
Endey. 123 Fed. 38, holding under 14 Stat. 221, authorizing tele- 
graph companies accepting act to use postroads for lines, com- 
pany cannot condemn private property; Western Union Tel. Co. v. 
Penn. R. R. Co.. 120 Fed. 371, 372, 373, 374, 375, holding under Rev. 
Stat., §§ 5263, 5264, and act Pa., March 24, 1849, telegraph company 
derived no right to appropriate by eminent domain railroad's right 
of way; Phillips v. Postal Tel. C. Co., 130 N. C. 523, 41 S. B. 1025, 
89 Am. St. Rep. 871, holding act of 1866, conferring upon com- 
panies accepting act right to use public domain not authorize ap- 
propriation of private lands; dissenting opinion in Francis v. United 
States. 188 U. S. 384, 23 Sup. Ct. 338, 47 L. 513, majority holding 
slips of customer indicating choice of numbers in policy game. 
slips to be forwarded into other State by agent, not representing 
interest is lottery. 

Distinguished in St Paul, M. & M. Ry. Co. v. Western Union Tel. 
Co., 118 Fed. 518, holding telegraph company having power of 
eminent domain obtained consent of railroad to use right of way 
^^y pay damages and maintain line. 

^ U. S. 24-^30, 24 L. 644, JONES v. UNITED STATES. 

Syl. 2 (IX, 361). Executory contracts must perform on time. 

Approved in Middlesex Water Co. v. Knappman Whiting Co., 64 
^' J. L. 250, 45 Atl. 696, holding break in water pipes without com- 
Pany»g fault does not relieve from contract to supply water at 
^^ain pressure; Garrison v. Cooke, 96 Tex. 232, 72 S. W. 56, hold- 
^^S where plaintiflF to complete railway within certain time, after- 
^^r^ extended, defendant to pay subscription, time was of essence, 
*D<i completion necessary to enforce subscription. 

distinguished in Comstock v. Fraternal Assn., 116 Wis. 388, 93 
^' "W. 24, holding stipulation in policy requiring notice of accident 
^^t:lxin ten days inapplicable where insured was unable from in- 
^""^^ to comply. 

(X:X, 361.) Miscellaneous. 

-Approved in McKay v. Bamett, 21 Utah, 247, 60 Pa. 1102, holding 
closing of schools by board of education because of smallpox did 
^^t: release board from payment of teacher's salary. 

^ TJ. S. 30-36, 24 L. 647, UNITED STATES v. STATE BANK. 

^^1. 3 (IX, 363). Same rules governing government and individ- 
uals. 

Approved in Allen v. West Point Mining, etc., Co., 132 Ala. 297, 

^^ So. 463, holding corporation bound on note executed by president 

atid another for repayment of loan of $5,000, where with knowledge 

of corporation borrower used money otherwise; Fidelity Nat. Bank 

ot Spokane ▼. Henley. 24 Wash. 7, 63 Pac. 1121, holding plaintiff 



06 U. S. 36-63 Notes on IT. S. Reports. 112 

assignee of contractor entitled to recover 20 per cent, of payments 
due on work retained by government until completion thereof. 

Distinguished in Pond v. United States, 111 Fed. 995, holding 
failure of treasury officers to notify sureties of collector's defalca- 
tions no defense to liability on bond. 

Syl. 4 (IX, 363). Government must repay funds wrongfully re- 
ceived. 

Approved in Aldrich v. Chemical Nat. Bank, 176 U. 8. 629, 44 L. 
615, 20 Sup. €t 502, holding national bank having used in business 
money obtained by its vice-president as a loan cannot defend on 
ground of nonauthorization or no capacity. 

96 U. S. 36-50. Not cited. 

96 U. S. 51-<53, 24 L. 681, CROMWELL v. COUNTY OP SAO. 

Syl. 1 (IX, 365). Municipal bonds are negotiable instmments. 

Approved in Rondot v. Rogers Tp., 99 Fed. 213, holding assignee 
of bona fide purchaser of Immatured bonds though assigned after 
maturity takes free from defehse of irregularity in record. 

Syl. 2 (IX, 366). Default interest not mature municipal bonds. 

Approved in Central, etc.. Banking Co. v. Farmers' Loan, etc, 
Co., 116 Fed. 706, holding negotiable railway bonds enforceable by 
purchaser before or after maturity and with notice of infirmities 
from fair holder for value before maturity; BuflFalo L., etc., Co. v. 
Medina Gas Co., 162 N. T. 78, 56 N. E. 508, holding wrongful pledge 
of mortgage bonds by secretary to pledge with notice passed de- 
fective title, but transferee of pledgee with notice of unpaid in- 
terest fair holder. 

Syl. 3 (IX, 366). Suspicion does not impair purchaser's title. 

Approved in Central Trust Co. v. California, etc., Ry. Co., 110 
Fed. 74, holding purchaser of mortgage bonds issuable only for 
construction work can enforce bonds where work not done where 
purchaser had no notice of illegality; Rotan v. Maedgen, etc, 24 
Tex. Civ. 560, 59 S. W. 586, holding acquisition of negotiable note 
before maturity unless with action, notice of infirmities not sub- 
ject to equities. 

Syl. 4 (IX, 367). Interest coupons mere incidents of debt 

Approved in Columbus, etc., R. R. Co. Appeals, 100 Fed. 194^ hold* 
ing under N. Y. 2 Rev. Stat., p. 1695, interest not payable on unde- 
tached coupons before maturity. 

Syl. 6 (IX, 368). Bona fide purchaser recovers face value 

Approved in Crawford v. Johnson, 87 Mo. App. 484, holding 

transferee of negotiable note, no date of transfer being given, pre* 

sumed to be before maturity. 



U3 Notes on U. S. Reports. 06 U. S. 63-75 

SyL It (IX, 370). Contractual Intention governs Interest rate. 

Approved in Bedford v. Eastern Bldg. & Loan Assn. of Syracuse, 
181 U. S. 243, 46 L. 845, 21 Sup. Ct. 602, upholding contract of New 
Tork loan association, though premiums charged would be usurious 
^ Tennessee where made, but not in New York where performed; 
^cIlwaine-Y. Ellington, 111 Fed. 584, upholding bond of stockholder 
ot building loan association payable at home office where not 
Qsurious, no intent appearing to avoid usury laws where bond 
«iven; Hewit v. Bank, ^ Nebr. 468, 00 N. W. 252, upholding re- 
i'nsal to instruct that note sent from Nebraska governed by Ne- 
braska laws; Guckian v. Newbold, 23 R. I. 556, 51 Atl. 211, holding 
no «rror in suit on demand note, 6 per cent, per annum, where no 
demand for principal or interest, to instruct interest payable an- 
oaaUy. 

W TJ. S. 63-60, 24 L. 661, TURNPIKE CO. v. ILLINOIS. 

^yl. 1 (IX, 370). Grant supplementing charter give life interest. 

-^^pproved in Wyandotte Electric Light Co. v. City of Wyandotte, 
12^^ Mich. 47, 82 N. W. 823, holding city empowered to grant franchise 
cm w^ not after nine years recall franchise granted to electric-light 
coxsapany. 

V. S. 60-75, 24 L. 610, TENNESSEE v. SNEED. 
rL 1 (IX, 371). Legislature may alter contractual remedies. 

-A.pproved in Oalusha v. Wendt, 114 Iowa, 603, 87 N. W. 514, up- 

boXding Iowa Code, § 1374, providing for taxing property mistakenly 

oxxxltted from assessment but holding penalty provided not re^ro- 

ac**dve; State Sav. Bank of Detroit v. Matthews, 123 Mich. 59, 81 N. 

^*^. 910, upholding Mich. Pub. Acts 1899, No. 200, decreasing time 

to^ foreclosure sale from one year to six months from filing bill; 

^^^urity Sav., etc., Co. v. Donnell, 81 Mo. App. 151, upholding 

^ixiendment to Kansas City charter confining lien of special tax 

^ttl to two years unless notice of suit be filed with city treasurer; 

Nekton V. City of Fargo, 10 N. Dak. 477, 88 N. W. 04, holding, 42 

^•^''^B N. Dak. 1899, amending manner of tax levy, leaving remedies 

*^JJae and abrogating former procedure, became effective immediately 

^^thout impairing contracts; Kirkman v. Bird, 22 Utah, 112, 61 Pac. 

^^. upholding section 7, p. 99, Utah Sess. Laws 1899, exempt- 

^**8 to heads of families earnings for personal service rendered 

within sixty days preceding execution; Oshkosh Water-Works Co. 

^- City of Oshkosh, 109 Wis. 219. 85 N. W. 380, upholding charter 

^^nendment requiring disallowance of claims against city or action 

deferred thereon sixty days before suit brought, and requiring 

•^PVlce on clerk instead of mayor. 

^distinguished in Richardson v. United States Mort, etc., Co., 194 
^ 266, 62 N. H. 608, construing lU. Laws 1807, p. 175, requiring 
Vol. II — 8 



96 a. S. 76-80 Notes on U. S. Reports. 114 

foreign corporations to maintain office and file articles as condltfon 
of operation, as acting prospectively only; D'Arcy v. Mut. L. L CJo., 
108 Tenn. 572, 68 S. W. 768, holding foreign Insurance company 
liable under Tenn. Acts 1875, by service on secretary of State where 
act 1885, chap. 160, abrogating former, was not complied with. 

86 U. S. 76-83, 24 L. 826, MEISTER v. MOORE. 

SyL 8 (IX, 873). Common-law marriage valid unless statutes pro- 
hibit 

Approved In Davis v. Pryor, 112 Fed. 276, holding contract mar- 
riage followed by notorious cohabitation, unless contrary to statute, 
constitutes valid common-law marriage; Waldrop v. State, 41 Tex. 
Or. 198, 53 8. W. 131, upholding refusal to instruct in prosecution 
for bigamy that former marriage must conform to statutory cere- 
monies. See notes, 78 Am. St. Rep. 362, 363, 382. 

Distinguished in Offield v. Davis, 100 Va. 252, 40 S. B. 810, hold- 
ing marriage by consent, not conforming to Va. Code, § 2222, 
requiring license and solemnization gives wife no dower rights. 

86 U. S. 84-86, 24 L. 653, INSURANCE CO. v. McCAIN. 
Syl. 1 (IX, 374). Notice of revocation necessary to terminate. 

Approved in Cheshire Prov. Inst v. Fensner, 63 Nebr. 688, 88 N. 
W. 852, holding general agency to make loans presumed to con- 
tinue until shown to be revoked. 

Distinguished in Easley v. New Zealand Ins. Co.. 5 Idaho, 600, 
61 Pac. 420, holding return of application for insurance and premium 
prevented insurance contract though loss occurred before receipt 
by insured. 

Syl. 2 (IX, .374). Third party relies on agent's authority. 

Approved in Gwaltney v. Provident Sav. Life Assur. Soc, 132 N. 
C. 829, 44 S. E. 6G1, holding general agent of insurance may waive 
condition for increase of premiums for age attained. 

86 U. S. 87-80, 24 L. 615, MCALLISTER v. KUHN. 

Syl. 2 (IX, 375). Transfer of shares by assignment of certificate. 

Distinguished in United W. W. Co. v. Stone, 127 Fed. 595, holding 
sufficient declaration alleging deposit of bonds certificates with 
defendant company and unauthorized surrender thereof to trust 
company in violation of reorganization plan. 

Syl. 3 (IX, 376). Declaration conversion pleading ultimate fact 
sufficient. 

Approved in Nebeker v. Harvey, 21 Utah, 373, 60 Pac. 1081, 
upholding complaint alleging ** wrongful taking'* where wrongful 
detention was gravamen of charge and no objection made at trial 
to form of complaint 



us 



Davidson t. New Orleans. 



3 U. 8. 90-108 



DIstlnsulHbed In Lacaff t. Dutch Miller, etc., Co., 31 Wasb. STl, 
72 Pac. 113. holding Insufficient traneferee'it complaint to reQiiIre 
lifiuance ot sto.-k. taillog to allege entry of tr.iiisfer on Iiooka or duty 
«[ company to make IL 
66 D. S. 90-96. Not cited. 
WU. 8. 07-108. 24 L. 616, DAVIDSON t. NEW ORLEANS. 

SyL 2 <rx, 37ti). Federal Constitution not concerned with details. 

Approved in French v. Barber Asphalt Paving Co.. ISl U. S. 337. 
pi* V. Rose, 207 111. 369, tiS N.B. 7(!S. majority upholding 111. act 
M«j 10. 1901. makJuE; failure of corporation to file annual report 
prima facie evidence of nonuser of franchise. 

Sjl. 4 (IX. 377). •' Due process " equivalent " law of land." 

Approved In Dayton, etc., Co. », Barton, 103 Tenn. 612. 53 S. W. 
BI2, upholding Tenn, Acts 1SS9, chap. 11, providing for redemp- 
Udd of store orders by store's so paying employee's and for suit 
Id case of refusal to do so; Plnncy r. Provtdeuce Loan, etc., Co., 
306 Wis. 400. 401. S2 N. W. 310, holding uneonsUtutlonal Wis. Rev. 
Stat., f 1775b. uuthorlzitig service of process upon private corpora- 
UauB by copy left with register of deeds: dissenting opinion In Peo- 
ple V. Boae, 207 III. 369, 69 N, B. 768, majority upholding 111. act 
Uiy 10, 1901, making failure of corporation to Qle annual report 
prima facie evidence of nonuaer ot franchise. 

Syl, e <IX, 378). State cannot make everything " (Jue process." 

Approved in New York, etc., B. H. Co. v. McKeon, 189 U. 8. 509, 
21 Sup. Ct 853, 47 L. 922, affirming holding that temporary plac- 
log of tracks on plalntlfTs side of highway though compelled 
I? Uw to reduce grade crossings was taking plalntlfTs property: 
Jolmgon V. Hunter. 127 Fed. 224. upholding Acts Ark. 1895. p. 88, 
^'o. 7, authorizing sale of nonresident's land for unpaid taxes on 
four weeks' published notice; Plillllps v. Postal Telegraph Co., 130 
M. G. Q22. 41 8. E. 1025, 69 Am. St. Rep. 871. holding appropriation 
o( right or way by telegraph company without compensation vio- 
lates Fourteenth Amendment: dissenting opinion In Taylor and Mar- 
ilall T. Beckham (No. 1), ITS U. 8. 600, 44 L. 1209, 20 Sup. CL 890. 
lOlS, majority holding Supreme Court has no Jurisdiction to review 
Btite court's decision sustaining determination of election couteat. 

Syl. 7 (IX, 378J. " Due process " not necessarily judicial proceed 
inga. 

Approved In Butz v. Michigan. 188 U. 8. GOT, 23 Sup. CI. 391, 47 
L, 666. upholding Mich. Pub. Acts 1S09, No. 237. granting medical 
tMard of registration unrevlewahle power to decide whether ap- 
plicants had '■ legally registered " under act 167 of 18f«; Maxwell 
f. Dow, 170, U. S. tKM. 44 I.. tj06, 20 Sup. Ct 457, holding proceeding 







I 



00 U. S. 97-108 Note§ on D. 8. Beporta. 118 

by Information Instead of Indictment by grand Jury, and trial by 
elglit jurors —due procesa of law; Boiler v. Holly. 176 U. 8. 409. 44 
Ij. 525, 20 Sup. Ct. 414, boldlng personal service on nonrpitldents out- 
side Jurladietioii of court Insufflclent when reasonable time before 
calling foreclosure suit not given; State v. Moore, 2 Pennew. (Del.) 
321. 48 Atl. 675, upholding Delaware practice of prosecution by 
iuformation and without a ]ury. 

Syl. 9 (IX, 381), Due process — How considered for litigants. 

Approveil in French v. Barber Asphalt Paving Co., 181 U. S. 328. 
45 L. 8», 21 Sup. CL 62ii. upholding apportloniuent of entire coat 
of street pavement upon abutting owners without preliminary 
hearing; Webster v. City of Fargo. 9 N. Dak. 211. 82 N. W. 733, 
upholding N. Dat. Pol. Code 1895. art. 17, chap. 28, charging 
entire cost of street pavement upon abutting property propor- 
tiouately to frontage. 

Syl. 10 (IX, 3S1), "Due process" determined In each case. 

Approved in State of Franblln, 133 Cal. 58G, 65 Pac. 1082. holding 
Cal. Code Civ. Proc, » 1713, 17U. 171S. relating to new trial. 
apply only when Issues are formed, bence not to objection to settle- 
ment of admlnisira tor's annual account; Partis v. State, 159 Ind. 221. 
G4 N. B. 808, upholding Burns" Rev. Stat. Ind. 1001, El T318, 7323, 
making untawuful practice of medicine wlttaout license; Ferry v. 
Campbell. 110 Iowa, 2133. 81 N. W. 605. holding unconstitutional 
Iowa Acts 26th Gen. Assem., chap. 28. i 1, subjecting all prop- 
erty within State to tax. providing for appraising after appointment 
of administrator, without notice to heir; Barber Asphalt Pav. Co. v. 
Ridge, lcJ9 Mo. 384. 68 8. W. 1045, holding unconstitutional Kansna 
City charter 1S80, requiring landowner to file defenses against tax 
bills within sixty days or lose right to plead them; Hood River L. 
Co. V. Waser County. 35 Or. 506, 57 Pac. 1019, holding unconstitu- 
tional Or. Sess. Laws 1889. | 1. enabling County Court to declare 
streams highways, to Improve same, and landowners not consenting, 
to flx compensation; dissenting opinion in Scranton v. Wheeler, 179 
U. S. ISO. 45 L. 144, 21 Sup. Ct. 63, majority upholdlug on writ of 
■error reme<ly of ejectment allowed by Michigan court to riparian 
«wuer to protect submerged water front 

Syl. 11 (IX, 383). Chance to adjudicate charge "due process." 

Approved In Weyerhaucser v. Minnesota, 170 U. S. 556. 44 L, 
586, 20 Sup. Ct. 4SS, holding where hearing Is offered during pro- 
ceedings failure to provide hearing before governor. In revalua- 
tion of undervalued property, does not deprive of due process of 
law; Osbamp v. Lewis. 103 Fed. 900. upholding tax assessments 
on nonreturned property, without notice, where Ohio Eev. Stat., 
{ 5848, give taxpayer right to test validity of tax by suit; Adams 
V. City of Shelbyvllle, 154 Ind. 471. 77 Am. St. Rep. 488. 57 N. K. 
116, upholding Ind. Acts 1889, p. 237, providing for assessing cost 



117 Davidson y. New Orleans. 96 U. S. 97-108 

of street improvements to abutting landowners, estimates to be 
posted, giving owner opportunity for hearing; Gallup v. Schmidt 
^eas., 154 Ind. 202, 56 N. E. 445, holding nonresident cannot ob- 
ject to Bums' Rev. Stat Ind. 1894, | 8560, providing for cor- 
^ection by auditor of tax lists notifying residents, since injunction 
open to him; Appleton v. City of Newton, 178 Mass. 282, 59 N. 
E. 649, upholding Mass. Stat 1878, chap. 344, authorizing city 
fo acquire land for water-worlts, requiring filing of instruments 
With registry of deeds, owner allowed three years to contest; 
Brtekson v. Cass Co., 11 N. Dak. 498, 92 N. W. 843, 847, 848, ap- 
^olcJing N. Dak. "drainage law," Rev. Codes 1899, chap. 21, pro- 
^'cling for hearing and for assessment by issue of interest-bearing 
^^^B to construct drains; King v. Portland, 38 Or. 425, 63 Pac. 
^ ripholding Or. Sess. Laws 1898, $$ 128, 138, providing for as- 
*®^^nients of cost of street improvement to abutting lots, notice 
^0 iDe posted for ten days; Woolard v. Nashville, 108 Tenn. 368, 
^ «. W.. 805, holding where <Shannon's Tenn. Code, § 1984, gives 
'^^^t to appeal in proceedings to condemn land^ obligation to 
^^^^ landowner notice implied; State v. Henry, 28 Wash. 49, 68 
^^<^. 372, upholding Wash. Sess. Laws 1895, p. 142, empowering 
*^"^^^ty commissioners to ascertain and apportion cost of ditch, giv- 
'°^ no right to contest prior law giving right; Stone v. Drainage 
^*»t., 118 Wis. 399, 95 N. W. 409. upholding Wis. Laws 1901, 
P* ^1, chap. 43, providing for additional assessment on drainage 
^^■Jbrlct property, without notice, where first assessment regular. 

Xl^istinguished in Voigt v. City of Detroit, 123 Mich. 550. 82 

^* W. 254, upholding Mich. Comp. Laws 1897, $ 3406, authoriz- 

'^^S^ city council by resolution to fix district benefited by proposed 

''^^brovement and amount of assessment without notice to land- 

^^^^:^ers; dissenting opinion in French v. Barber Asphalt Paving 

^^^^-, 181 U. S. 355, 45 L. 894, 21 Sup. Ct 637, majority upholding 

^^^souri city ordinance, apportioning entire cost of street pave- 

°^^^3it as tax lien upon abutting owner, without hearing. 

lyl. 12 (IX, 385). Unequal, taxation not denial " due process.** 

ipproved in W. O. Peacock Ca v. Pratt 121 Fed. 776, uphold- 
^^^ Hawaiian income tax, Sess. Laws 1901, art. 20, imposing in- 
^^^^^»3ie tax on certain corporation; State v. Travelers* Ins. Co.. 73 
^^^xin. 271, 47 Atl. 305, upholding Conn. Gen. Stat, §$ 3836, 3916, 
P^^:>vlding taxation of stock of resident insurance companies as 
.rket value, and different tax on nonresidents; State v. Smith, 
Ind. 557, 63 N. E. 30, upholding Ind. Acts 1899, $ 1, deducting 
ockortgage debt not exceeding $700, nor one-iialf assessed valua- 
^on from assessed valuation of land, such not being an exemption. 

Syl. 13 (IX, 385). Fair trial provided> due process. 

Approved in New Orleans Water- Works Co. v. Louisiana, 185 
^. S. 349, 46 L. 943, 22 Sup. Ct 696, holding Supreme Court has 



86 U. S, 97-103 Notes on U. S. RoportB. 



11? 



no Jurisdiction to review State judgment forfeiting water-works 
charter on quo warranto after full hearing; Wilson v. Stacdefer, 
184 U. S. 415. 46 L. 619, 22 Sup. Ct. 300. upholding Tex. act March 
25. 1807, authorizing forfeiture, witliout bearing, of lands pur- 
chased of State on default of Interest, allowing suit witblu six 
montbB; GaUup v. Schmidt. 183 U. S. 307, 46 L. 213, 22 Sop. 
Ot 164, holding nonresideDt executor appearing and contesting 
in court csnuot object that Ind. Uev. Stat., S S500, provides no 
notice to nonresidents of assesement of omitted property. 

Olstlugulsbed In Godfrey v. Bennington Water Co., 75 Vt. SuG, 
55 Atl. 656, holding where tax Hater failed to file individual tax 
list, plaintiff had no remedy under VL Stat. 428, and was not 
accorded due process. 

SyL 14 (IX, 385). BeneBtB of assessment not Judicially Inquired. 

Approved in Carson v. Sewer Comrs. of Brockton, 182 D. S 
401, 45 L. 1154. 21 Sup. Ct 861. upholding ordinance Imposing 
special asBCBSUient upon property-owners who make use. of them 
for maintenance of public sewers; City of Indianapolis v. Holt. 
165 Ind. 234. 57 N. B. 970, 972, upholding Ind. Acta 1895, authoriz- 
ing boards of public works to lay out and grade streets and 
assess costs in abutting landowners with opportunity of contest; 
BarHeld v. Gleason. Ill Ky. 517, 63 S. W. 9G9. upholding Ky. 
Stat., i 283S, providing for original construction of streets In citim 
of first class at cost of abutting landowners according to front- 
age, disregarding benefits; Barber Asphalt Pav. Co. v. French. 
158 Mo. 534. 58 S. W. 940. 041. upholding asseBsment levied pur- 
suant to law upon abutting owners, regardless of benefits con- 
ferred, to cover cost of street pavement; Heman v. Allen. 156 
Mo. 550, 57 S. W. 563, uplioldlng St Loula City charter, art 6. 
i 22, providing for assessment of special tai against lots near 
completed sewer, regardless of Improvements. 

Distinguished in Baltimore, etc., B. B. Co, v. State, 159 Ind. 522. 
65 N. B. 513, holding where predecessor of company had con- 
structive notice of proceedings to establlBh highway over right 
of way. failure to notify company not unconstitutional: dissent- 
ing opinion In City of Indianapolis v. Holt, 155 Ind. 280. 57 K. 
B. 1102. majority uplioldlng Ind. Acts 1895, authorizing boards 
of works to grade streets, assessing costs to abutting owners 
who might contest assessments. 

Syl. 16 (IX, 380). Object of taxing determines " due process." 

Approved in Glldden v. Harrington, 189 U. S. 258, 23 Sup. Ct. 
6711, 47 L. 801, upholding Massachusetts statute and procedure, 
assessing to trustee personalty held in trust providing for notice 
to taxpayers by assessor, and ^'aluatlon by him on no return; 
People's Nat Bank v. Marye, 107 Fed. 581, upholding act Va.. 
March 6, 1890, providing for taxation of bank shares based on 
valuations returned by banks, but providing for no notice to 



il9 Notes on U. 3. Reports. 96 U. S. 108-118 

Bhareholdere nor hearing; Parks y. State, 159 Ind. 218, 64 N E. 
^, upholding Bums* Rev. Stot Ind. 1901, §§ 7818, 7323, making 
^iQlawful practice of medicine without license; Hood River L. 
Co. y. Kasco Ck>unty, 85 Or. 505, 57 Pac. 1019, holding unconsti- 
tutional Or. Sess. Laws 1889, I 1, enabling County Court to declare 
streams public highways, to direct improvement thereof, and to fix 
^^mpensation. See 94 Am. St Rep. 621, note. 

Distinguished in Cincinnati, etc., Ry. Co. y. City of Cincinnati, 
^ Ohio St 474, 57 N. B. 232, holding compensation paid land- 

ovriier for lands appropriated for streets cannot be taxed back upon 

Remaining lands. 

CIX, 376). Miscellaneous. 

^^pproved in Louisville ft N. R. R. Co. y. Kentucky, 183 U. S. 
^i«, 46 L. 305, 22 Sup. Ct 101, upholding Ky. Const, § 218, and 
K^'. Gen. Stat 1894, | 820, prohibiting railroads from charging more 
f<»" short than for long haul except by railway commission's per- 

^ TJ. S. 108-112, 24 L. 764« ARTHUR v. MORRISON. 

SjL 1 (IX, 389* Commercial understanding determines revenue 
*<^^^«truction. 

-^.pproved in Chew Hing Long v. Wise, 176 U. 8. 161, 44 L. 414, 20 
^^X). Ct 323, holding tapioca flour named on free list not dutiable 
^'■^^er section 23, tariflT act of 1890, as '* preparation fit for use as 
■^^'Ych;'* Voight V. Mihalovitch, 125 Fed. 82, holding inedible cherries 
lK^XK>rted in alcohol, used in manufacture of cherry Juice, dutiable 
^*«^caer 30 Stat 171, as "fruits preserved spirits;" Wieland v. Col- 
l^^^^r, etc., 104 Fed. 543, holding small fish packed in oil, known 
*<%^ong importers as "sprats in oil," dutiable under 28 Stat 523, as 
^^^snmerdally known ** sardines in oil." 

» TJ. S. 112-118, 24 L. 766, ARTHUR v. LAHEY. 

^yl. 1 (IX, 389). Commercial designation determines dutiable 
^^^racter. 

-Approved in Chew Hing Lung v. Wise, 176 U. S. 161, 44 L. 414, 
^^ Sup. Ct 323, holding tapioca flour exempted by paragraph 730, 
^^-r*iff act 1890, not dutiable under paragraph 323, as preparation fit 
'ox* use as starch; Nordlinger v. United States, 115 Fed. 830, holding 
l^S'hom citron, known commercially as dried fruit exempted by 
^^ Stat 519 as such, and not dutiable under page 504 as ** preserved 
*** sugar." 

^yl 2 (IX, 389). Speciflc terms govern general classification. 

Approved in Chew Hing Lung v. Wise, 176 U. S. 160. 44 L. 414, 
^ Sup. Ct 322, holding paragraph 730, tariff act 1890. spedifically 
exempting " tapioca fiour," prevailed over general provision of para- 
graph 323; United States v. Lehn, 113 Fed. 1005, holding dulcin a 



96 U. S. 118-145 Notes on U. S. Reports. 120 

specific article dutiable under tariff act 1897, par. 8, as chemical 
compound, not as saccharine, which It Is not 

Distinguished in Goldenberg Bros. & Co. y. United States, 124 
Fed. 1004, holding lace neckwear, not being commercial term, duti- 
able under section 339, tariff act July, 1897, chap. 11, § 1» as made 
of lace rather than under section 314, as wearing appareL 

96 U. S. 118-124, 24 L. 768, ARTHUR v. UNKART. 

SyL 4 (IX, 390). Inspector presumed to act correctly. 

Approved In United States v. Sobering, 123 Fed. 66, holdhig 
"chloral hydrate" and "salol" dutiable under 30 Stat 154, as 
preparation containing alcohol, where no proof to overturn official's 
assessment 

96 U. S. 124-130. Not cited. 

96 U. S. 131-135, 24 L. 773, MURPHY v. ARNSON. 

Syl. 1 (IX, 392). Nonenumerated article dutiable under similitude* 
clause. 

Approved in Landgraf v. Kuh, 188 111. 495, 59 N. E. 504, holding 
building wherein tenants and other employees manufacture garters 
within 111. act June 29, 1885, requiring fire-escapes In buildings used 
for manufacturing. 

Distinguished in United States v. Dana, 99 Fed. 434, holding 
ferrochrome dutiable under paragraph 10, tariff act 1894, because 
similar In use to ferromanganese. 

(IX, 392). Miscellaneous. 

Approved In Missouri v. Bohnenkamp, 88 Mo. App. 175^ holding 
manufacturer of Catawba wine, by refining raw wine by adding 
new ingredients. Is within Mo. Rev. Stat, § 8487, and entitied to 
sell same. 

96 U. S. 135-137. Not cited. 

96 U. S. 137-141, 24 L. 811, ARTHUR v. HOMER. 

Syl. 2 (IX, 393). Repugnancy necessary to repeal by Implication. 

Approved in In re Simpson, 139 Fed. 625, holding Rev. Stat, 
§ 5359, making attempt of seamen to revolt, a criminal offense 
not repealed by Rev. Stat, § 4596, forbidding combinations to dis- 
obey lawful commands; Croasdale v. Davis, 9 Knu. App. 192, 69 
Pac. 668, holding amendatory act 18G9, assessing fees of Supreme 
(yourt clerk, not affecting Kan. Gen. Stat 1868, chap. 27, since 
latter authorize clerk to tax costs. 

96 U. S. 141-143. Not cited. 

96 U. S. 143-145, 24 L. 813, ARTHUR v. RHEIMS. 

Syl. 1 (IX, 393). Articles made dutiable by name must pay. 

Approved in Chew Hing Lung v. Wise, 176 U. S. 161, 44 L. 414, 
20 Sup. (3t 322, 323, holding tapioca fiour exempted by paragraph 



^ Notes on U. S. Reports. 06 U. S. 145-174 

"T^O, tariff act 1800, not dutiable under paragraph 823, as " prepara- 
tion fit for use as starch." 

96 U. S. 145-147. Not cited. 

% U. S. 148-153, 24 L. 758, DA VIES ▼. ARTHUR 
Syl. 1 <IX, 304). Importer's protest must be distinct 
Approved in In re Hagop Bogigian Co., 104 Fed. 77, upholding 
protest against assessment of oriental goods under act 1807 instead 
of act 1804, under which they were appraised though no sections 
specified. 

Syl. 2 ax, 305). Importer's protest binds at trial. 

Ai^)roved in United States v. Bayersdorfer, 126 Fed. 735, holding 
^ongh goods exempted by paragraph not .cited in protest, shipper 
precluded from relying upon exemption on appeal by 26 Stat 137, 
<*«X>. 407. 

0::X 304). Miscellaneous. 

-^OTroved in Myers v. United States, 110 Fed. 041, upholding In- 
^P^^^tor's assessment of mica in small pieces as **mica manufac- 
*°*■^^d," under 30 Stat 166, and not as waste, not provided for. 

^ TJ. S. 153-161, 24 L. 844, KOHLSAAT v. MURPHY. 

^^1. 3 (IX, 305). Intention gathered from whole statute. 

-^-pproved in Peters v. Malin, 111 Fed. 253, construing reservation 
^ State of punishment of crimes against State in section 3, Iowa 
■^^^^s, 26th Gen. Assem. 114, surrendering Jurisdiction over Indians 
^ XJnited States. 

^^ U. S. 162-168. Not cited. 

^^ V. S. 168-174, 24 L. 622, BRAWLEY v. UNITED STATES. 

Syl. 1 (IX, 306). More or less, goods identified, estimate. 

-<^pproved In Pine River Loggring & Improvement Co. v. United 

^"•^^tes, 186 U. S. 280, 46 L. 1160, 22 Sup. Ct 924, holding contracU 

" cutting timber, quantity designated " about " or ** more or less/' 

not authorize cutting of all timber of kind mentioned;' Wolff v. 

«ll8-Fargo Co., 115 Fed. 36, holding offer* in contract to furnish ce- 

™^^nt which purchaser might require, or about 5,000 barrels more or 

^^ss, did not limit purchaser to that number; St. Louis, etc., Box Co. 

^-^ J. C. Hubinger, etc., Co., 100 Fed. 590, holding provisions for re- 

^^*irn of " some " starch cartons, found unsatisfactory in contract for 

^»O00,000, did not apply where shipment of 54,000 was rejected; Rib 

"^iver L. Co. v. Ogllvie, 113 Wis. 487, 89 N. W. 485, holding contract 

^ sell all lumber of certain grades obtainable for about 6,000,000 

^^t, logs banked at W. was identified and fulfilled by smaller 

^Qmber. 



06 U. S. 174-188 Notes on U; S. Reports. 122 

SyL 2 (IX, 397). More, less, not Identified, number goYems. 

Approved in Loudenbach Fertilizer Co. v. Tennessee Phosphate 
Co., 121 Fed. 300, holding contract to purchase all rock used In 
phosphate plant for five years broken by failure to use rock for 
one year; Budge v. United, etc., Co., 104 Fed. 409, 500, holding 
contract to furnish and receive ** about 600 " timbers and '* about 
15,000" of diflPerent dimensions not fulfilled by acceptance of 
15 and 2,000 respectively; Bass Dry Goods Co. ▼. Granite City Mfg. 
Co., 113 Ga. 1142, 39 S. E. 471, holding contract to sell ** about " 
147 dozen pairs of pants unidentified called for the number nanied, 
subject only to slight variation. 

Syl. 3 (IX, 397). Where purchaser has option that govems. 

Approved in Staver, * etc., Co. v. Park Steel Co., 104 Fed. 208, 
holding declaration for breach of contract for all tire steel needed 
prior to September 1st, insufficient for failing to allege steel ordered 
and refused, needed before September Ist. 

Syl. 5 (IX, 397). Ck)ntemporaneous facts explaining writing. 

Approved in Western Union Tel. Co. v. American Bell TeL Co., 
105 Fed. 687, admitting evidence of previous negotiations to ex- 
plain written contract for rentals and royalties to be paid hj 
defendant for use of certain electrical appliances. 

96 U. S. 174^176. Not cited. 

96 U. S. 176-193, 24 L. 716, WILLIAMS V. BRUFFT. 

Syl. 2 (IX, 398). Enactments enforced by State Federally review- 
able. 

Approved in Mercantile, etc., Deposit Co. v. Collins Park B. B., 
99 Fed. 815, holding suit to enjoin enforcement of city ordinance 
which by Ga. Const, art. 3, | 7, has effect of State law, raisee 
Federal question of impairing contract 

96 U. S. 193-198, 24 L. 654, DEWING v. PERDICARIES. 

SyL 4 (IX, 401). Stockholder's suit to vacate sequestration. 

Approved in Dickerma*n v. Northern Trust Co., 176 U. S. 188, 44 
L. 429, 20 Sup. Ct 313, holding minority members of corporation 
may intervene joining corporation, in foreclosure suit against cor- 
poration; Hanchett v. Blair, 100 Fed. 824, holding mortgage not 
invalid because original mortgagee at time mortgage executed was 
majority stockholder of mortgagor; Kraft Co., etc. v. Bank of Or- 
land, 133 Cal. 67, 65 Pac. 145, holding pledgee of stock certificate 
to secure indebtedness may compel coriK>ratlon after sale of stock 
for delinquencies to recognise him as stockholder. 



123 Notes on U. S. Reports. 06 U. S. 199-204 

96 U. S. 199-204, 24 L. 656, GOLJ)-WASHING, ETC., CO. v. KEYBS 

SyL 1 (IX, 401). For removal record must show jurisdiction. 

Approved in Lampasas v. Bell, 180 U. S. 283, 45 L. 530, 21 Sup. 
Ct 370, holding in action against city on interest coupons on cor- 
poration bonds Federal Jurisdiction not given by contention that 
incorporation includes people without opportunity for hearing; 
Ghrystal Springs I»and, etc.. Go. v.* Los Angeles, 177 U. S. 169, 44 
L 720, 20 Sup. Ct 573, holding suit to establish water rights con- 
nected with land granted by Mexican government, alleging pro 
tectlon of Mexican treaty, involves no Federal question; Joy v. 
City of St. Louis, 122 Fed. 526, holding suit involving land alleged 
to be under protection of Louisiana purchase treaty, depending on 
question of fact, not entitled to removal; Dalton ▼. Milwaukee 
Mechanics' Ins. Co., 118 Fed. 877, holding allegation of corporation 
that it is citizen and resident not equivalent* to organization under 
laws of such State when necessary for Federal jurisdiction; Marrs 
^' Felton, 102 Fed. 779, holding where receiver's rights to removal 
^stg on diverse citizenship he cannot remove where the resident 
<'^oad is joined in action of test. 

Syl. 2 (IX, 402). Petition is pleading — Must statie facts. 

Approved in Western Union Tel. Co. ▼. Ann Arbor R. R. Co., 
^78 U. S. 244, 44 L. 1054, 20 Sup. Ct. 869, holding telegraph com- 
P^ny*8 allegation in seeking specific performance of contract for 
%ht of way insufficient, stating right under statute to use rail- 
'^ad's right of way; Gableman v. Peoria, D. & E. R. R. Co., 179 
^* S. 339, 46 L. 223, 21 Sup. Ct. 173, holding action against railroad 
'^ceiver for damages, not removable to Federal court where re- 
^i'ver appointed by Federal court under equity power; Owensboro 
^« Owensboro W. W. Co., 116 Fed. 321, holding ordinance requir- 
es water-works to instal meters apparently authorized, is law of 
St^te and appealable directly to Supreme Court, not to Circuit 
^nrt; Green v. Heaston, Recr., 164 Ind. 129, 56 N. E. 88, holding 
legation of diverse residence at time complaint filed insufficient 
Allegation of diverse citizenship. 

SyL 8 (IX, 403). Controversy must involve construing Federal 



Approved in Bankers', etc., Co. v. Minnesota, etc., Ry., 192 U. S. 385, 
^ Sup. Ct. 328, 330, holding suit against railway company cari-ylng 
mails, for loss*of registered package, did not arise under laws of 
United States; Patton v. Brady, 184 U. S. 611, 46 L. 716, 22 Sup. Ct. 
^W, holding Circuit Court has Jurisdiction where in action to re- 
cover money paid internal revenue collector, ground alleged is uncon- 
stitutionality of law; Chicago, Rock Island, etc., Ry. Co. v. Martin. 
W U. S. 250, 44 L. 1057, 20 Sup. Ct. 856. holding action against rail- 
way for wrongful death raises no Federal question, though receiver 
Q^ade defendant and not removable where all defendants do not 



90 U. S. 205-218 Notes on U. S. Reports. 124 

petition; Shoshone Mining Co. t. Rutter, 177 U. S. 507, 44 L. 865, 
20 Sup. Ct. 726, holding suit supporting adverse claim to mine 
under U. S. Rev. Stat., $§ 2325, 2326, not removable unlesH citizen- 
ship diverse or involving construction of mining laws; B. A. Ghat* 
field Co. ▼. City of New Haven, 110 Fed. 792, holding action against 
maintenance of bridge across navigable water causing special 
damages removable where right depends on construction of 90 
Stat. 1153; State v. Frost, 113 Wis. 646, 89 N. W. 920, holding in- 
formation in equity in behalf of State against Federal receiver in- 
volving power of receiver removable to Federal court. 

Distinguished in Defiance Water Co. v. Defiance, 191 U. S. 191, 
holding averment that denial of injunction against payments of 
water rentals will deprive plaintifT of property without due process 
is insufilcient 

Syl. 4 (IX, 405). Facts appearing in pleadings sufficient 

Approved in American Sugar Refining Co. v. New Orleans, 181 
U. S. 281, 45 L. 862, 21 Sup. Ct. 648, holding where Circuit Court's 
jurisdiction depends on diverse citizenship it should not decline, al- 
though case involves constitutional question permitting appeal 
direct to Supreme Court; Virginia-Carolina, etc., Co. v. Sundry I. 
Co., 108 Fed. 453, holding action by Virginia corporation brought in 
South Carolina court against fifteen corporations of difTerent resi- 
dence removable to Circuit Court. 

Distinguished in M'Cune v. Essig, 1^ Fed. 589, holding action 
by deceased homesteader's daughter to recover interest in land 
patented to widow after husband's death involves construction of 
Federal law, no Federal question. 

96 U. S. 205-211. Not cited. 

96 U. S. 211-218, 24 L. 628, UNITED STATES V. COUNTY OF 
CLARK. 

Syl. 1 (IX, 406). County subscription bonds are county debt 

Approved in United States v. Saunders, 124 Fed. 128, awarding 
mandamus compelling city's payment of Judgment on municipal 
bonds issued under Nebr. Comp. Stat. 1901, not limiting liability 
to special tax levy; Board of Comrs. v. Gardiner Sav. Inst, 119 Fed. 
46, holding where no stipulation in act or bonds for payment solely 
from tax levy bonds issued under 89 Ohio Laws, p. 66, payable 
from general fund; Ft. Madison v. Ft. Madison W. Co., 114 Fed. 
294, holding under MeClain's Code, Iowa, §§ 641-643, city liable on 
contract with water company In excess of five mill special tax 
provided for therein; Ft Madison Water Co. v. City of Ft. Madison, 
110 Fed. 905, holding McClain's Code, Iowa, §§ 641-043, authorizing 
cities to contract with water-works companies and to collect special 
tax therefor did not relieve city beyond tax amount; State v. Mayor, 
etc., of City of Bristol, 109 Tenn. 324, 70 S. W. 1033, holding Tenn. 
Acts 1887, chap. 88, giving city of Bristol power to issue bonds to 



125 Notes on U. S. Reports. 96 U. S. 21&-245 

pay railroad Indebtedness, Implies power to levy taxes therefor; 
Seymour y. Frost, 26 Wash. 647, 66 Pac 92, holding interest od 
county bonds issued prior to operation of Laws 1897, § 62, payable 
from indebtedness fund therein provided. 

DistinguiBhed in Gay y. New Whatcom, 26 Wash. 396, 397, 300. 
67 Pac 90, 91, denying bondholder's right under Wash. Laws 1889, 
1S90, p. 521, to compel city by mandamus to supplement insuffi- 
cient tax leyy by second leyy. 

96 U. S. 218-234. Not cited. 

96 U. S. 234-246, 24 L. 689, INSURANCE CO. y. NORTON. 
SyL 1 (IX, 407). Insurance company may waive conditions. 

Distinguished in Iowa Life Ins. Co. v. Lewis, 187 U. S. 346, 23 
Snp. Ot 130, 47 L. 210, holding policy forfeited ipso facto on failure 
to pay premium note when due where payment was made condition 
of insurance contract 

^l 2 (IX, 409). Insurer waiving written conditions by paroL 

'Approved in Alabama State, etc., Co. v. Long Clothing, etc., Co., 
^ Ala. 675, 26 So. 658, admitting parol evidence to show waiver 
of condition against additional Insurance. 

SyL 3 (IX, 409). Insurer may ratify agent* s waiver. 

approved in Pope y. Glens Falls ins. Co., 130 Ala. 360, 30 So. 

^» holding acceptance of premiums and issuance of policy by 

^''^lified agent with knowledge of insured's title to land waived 

^'^cy, requiring waiver in writing; United States Life Ins. Co. 

^' tiesser, 126 Ala. 580, 584, 28 So. 650, 651, allowing beneficiary 

^ ^how waiver by local agent of payment of premium when due, 

^tigh policy limited power to waive to president with secretary; 

^*^ion, etc., Ins. Co. v. Whitzel, 29 Ind. App. 6G5, 65 N. E. 17, up- 

^^^Ing paid-up policy Issued to Insured, overdue premiums on for- 

'^'^^ policy being accepted after Issue of paid-up policy; Baltimore 

^*^e Ins. Co. V. Howard, 95 Md. 254, 52 Atl. 399, holding receipt 

^^ ^our delinquent weelvly premiums by inspector and his assurance 

^^t policy all right waives forfeiture for such delinquency; Grabbs 

^* li'armers' Mut, etc., Ins. Co., 125 N. C. 397, 34 S. E. 505, up- 

"^Ifling policy conditioned upon true statement of interest where 

^^^Xured were partners as company's agent knew, though policy 

P^t>liibited agent's power to waive. 

Syl. 4 (IX, 410). Extending premium note waives delinquency. 

-Approved In i£tna Life Ins. Co. v. Frlerson, 114 Fed. 63, holding 
^^^ielpt and retention of premium with knowledge of receiving com- 
pany of dangerous journey contemplated by insured; Georgia Home 
^1^. Co. v. Allen, 128 Ala. 460, 30 So. 539, holding action of ad- 
^^ister in investigating loss having full knowledge of breach of 
vuiid *' iron-safe " clause, waives all breaches of conditions; United 



96 U. S. 245-258 Notes on D. S. Reports, 126 

States Ltfe Ids. Ca ▼. I.esser, 126 Ala. C>S6. 990. 28 So. 052, 051. 
allowing beueBdaij to Bbow waiver by local asent of payment of 
premiums wbea dae. tboagh policy limited power to waive to presi- 
dent wltb secretary; KnarBtoD t. Manhattan Ltfe lus. Co.. 140 
CoL 85, 73 Pac. 742, bolding extensloD of time to Insured waives 
forfeiture, though oral and for no consideration, until extension 
repudiated by company. 

Syl. 5 (IX. 412). ForfeituTcs discountenanced In law. 

Apiiroved In Foley t. Grand Hotel Co., 121 Fed. 512, allowing 
mortgagee sssfgnees of furniture bought on Instalments to re< 
deem where vendors Ignoring remedy on lease took case Into equity 
Immediately on default; Germanla F. I. Co. t. Pitcher. IGO Ind. 
SOU, 64 N. E. B22, 023, holding failnre to submit proofs Id lime 
waived by continuation of negotiations of adjuster where com- 
pany ba^ed refusal to pay on other grounds; Hollowell r. Life 
Ins. Co. of Virginia, 123 N. C. 400, 35 S. E. 616. holding acceptance 
of checks sent to company on request to " remit " showed waiver 
of payment In any other way; Frasier v. New Zealand Ins. Co., 39 
Or. 347, 64 Pac. 810, holding company's retention for four months 
of premium issued by agent to himself waived breach of condi- 
tions against vacancy permits In policies: Farmers', etc.. Assn. v. 
EInaey, 101 Va. 241. 43 S. E. 339. holding insurance company es- 
topped to forfeit policy for nonpayment of premiums when due 
where it received further aeaessmeuts subsequent thereto and after 
loss occurred. 

Distinguished in Iowa Life Ins. Co. v. Lewis. 1S7 U. S. 358, 23 
Sup. Ct 130, 132, 47 L. 211, holding policy forfeited ipso facto by 
failure to pay premium note when due where such condition wns 
placed in policy as part of contract; Northern Assur. Co. r. Grand 
View BIdg. Assn., 183 U. S. 349. 352, 360, 46 L. 230, 231. 234. 22 
Sup. Ct. 14S, 140. 152, holding breach of condition against other 
Insurance not waived by agent's delivering policy with knowledge, 
policy prohibiting agent's waiving unless by written waiver Indorsed 
on policy. 
00 n. 8. 245-258, 24 L. 828, McLEAN v. FLEMING. 

Syl. 1 {IX. 413). Equity protects manufacturer's trade-mark. 

Approved In BlEsell Chilled Plow Works v. T. M. Blssell Plow Co., 
121 Fed. 304. upholding right of "Blssell Chilled Plow Works" 
owners of Blssell patent, to enjoin T. M. Blssell Plow Company 
from manufacturing substantially same plows under confusingly 
similar name; Heller, etc, Co. v. Shaver. 102 Fed. SS8, holding 
celling of other goods as American Wash Blue and American Ball 
fraud on public restrained In suit of manufacturer of 
genuine articles: Red P. Cattle Club v. Red. P. Cattle Club, lOS Iowa. 
111. 78 N. W. 805, holding Iowa corporation Red Polled CalUe 




m 



Notes on D. 8. Keports OG U. S. 245-258 



dub of America had no riglit to deceive public by UBing name of 
prcdooaly organized In Illluols. 

DlgQnsulsbed in dissenting opinion In Inlematlonal Committee, 
fit.. A.. V. Totuig Women-s, etc., Assn.. 194 III. 203. 62 N. E. 554, 
majority holding " ToBog Women's Christian Association" entitled 
10 enjoin use of mlsleadlngly simitar name. "International Com- 
lulitee of Yonng Woman's Christian AssoclBtion." 

SjL 2 (IX. 4X4). nimilarlty misleading ordinary purchaser la In- 
IrlagemeDt 

ipproved In French Republic v. Saratoga Vichy Co.. 191 U. S. 
439, holding word " Vichy " having become generic use of term 
"Siraloga Vichy Water" not intended or calculated to deceive nor 
tnMrlagemeat; Ohio Baking Co. v. Nailonal Biscuit Co., 127 Fed. 
130 holding '■ In-er Seal" trade-mark printed in white letters on red 
litrk^ound on ends of cracker cartons Infringed by defeDdant'e 
" VacUty Seal ' deceivingly Blmllar: Allen B, Wrisley Co. t. Iowa 
Sdp Co., 122 Fed. 797. 79S, holding term " Our Country's Soap " 
packed Id similar bars but dressed so as to mislead did not In- 
Innge upon trade-mark " Old Country Soap;" Enoch Morgan's Sona' 
Co. T. WhltOer-Coburn Co., 118 Fed. 658. holding word " Sappho" 
iiaed to designate an article similar to "Sapollo" and similarly 
pucted suificleutly resembles latter to constitute Infringement; 
ilunla Cement Co. v. KatKcnstelD, 109 Fed. 316, enjoining selling 
w"Le Pages Liquid Glue." " Le Pages Pish Head Glue," an lii- 
tetiK grade manufactured by same complainant; American Wash- 
l«9nl Co. V. Saginaw Mfg. Co., 103 Fed. 2S4. Iiolding complainant 
tiarlng monopoly of aluminum must show public reliance upon 
same " aluminum " upon washboards containing none to entitle blm 
to Injunction; Paris Medicine Co. v. Hill Co., 102 Fed. 151. holding 
strong resemblance between name of goods used unless explained 
creates Inference of attempt to deceive though facts may show 
deteoge; Centaur Co. v. Marshall, ST Fed. 789, 791, holding wrappers 
^"vi by defendants on Caetoria bottles not so similar to plaintiff's 
« to deceive ordinary purchasers; Kyle v. Perfection Mattress Co., 
131 Ala. 50, 28 So. 546, holding successor to business of manufnc- 
inrlng " Perfection Mattress " may enjoin predecessor from selliug 
similarly made "Kyle Perfection Mattresses," name and appear- 
lace misleading; International Committee, etc., Assn. v. Voung 
Women's, etc.. A.. 194 III. 200. G2 N. E. 553, enjoining use of name 
" International Committee of Voung Women's Christian Asaocln* 
lion " as confusingly similar to " Young Women's Clirislian Associa- 
tion;" Nicholson V. Wm. A. Stukney Cigar Co.. 158 Mo. 16o. 59 S. 
W. 123, holding use on cigar boi of name and picture "Union 
Station" where other lettering entirely dissimilar not enjolnable as 
mlnieading public. See notes. Sa Am. St Bep. 98, 104, 123. 




1 



96 V. 3. 245-258 Notes on U. S. Bcporta. 128 

Distinguished In Weyman t. Soderbery, 103 Fed. 65, boldlng 
manufacturer of souff not entitled to appropriate geograpbii?aI name 
" Copenliagen " hut conceding right " Kjobenhaons Snua " no In- 
fringement. 

SyL 3 (IX. 416). Only future Infringement restrained where 
Inclies. 

Approved in Saslehner v. Eisner & MendelBon Co,, 179 U. S, 39. 
45 L. 76. 21 Sup. Ct. 15. lioldlng laches not derenae to inrringement 
of labels " Hunj-adI " where continued resistance to such use 
negatived acfjulescence: La Republique Frsncaiae v. Schultz, 102 
Fed. 156. holding owner of natural spring cannot get accounting 
from seller of mineral water labeled as spring water where water 
80 sold and labeled thirty years. 

Syl. 5 (IX. 417). Another's name used as trade-mark. 

Approved In Macmahan, etc., Co. v. Denver, etc. Co., 113 Fed. 
472, holding manufacturer of McMnhan's antlphloglstlne for dentists' 
use such not jeing generally known to public not entitled to enjoin 
use of term Innocently by another; Shaver v. Heller, etc.. Co.. 108 
Fed, 832, holding use of word " American " In connection with wash 
blue though geographical representing well-known article of quality 
properly enjoined. 

Syl. 6 (IX, 418). Where Infringement clear fraudulent Intent 
unnecessary. 

Approved In Church, etc., Co. v. Ruaa, 90 Fed. 279, holding use of 
arm and hammer on packages of soda Infringed trade-mark of 
Church & Company original manufacturers of "Arm and Hammer " 
brand soda; Arminglon, etc. v. Palmer, 21 R. I. 116, 42 Atl. 311, hold- 
ing corporation organized to succeed "Armlagton & Sims Company " 
has no right to use that name though entitled to manufacture same 
engines. 

Syl. 7 (IX, 418). Intent to pass goods as another. 

Approved In Shaver y. Heller, etc.. Co.. 108 Fed. 831, holding 
word " American " though geographical used to designate wash blue 
was Infringement on well-known article "American Ball Blue." 

Syl. 8 (IX, 420). Any terms designating goods sufficient 

Approved in Watkins Medical Co. v. Sands, 80 Minn, 92. 82 N. 
W. 1110, upliolding complaint stating Infringement of article manu- 
factured under name " Dr. Ward's Liniment;" Drake Medicine Co, 
V. Glessner, 68 Ohio St. 357, 67 N. E. 727. holding " Dr. Drake's Ger- 
mnn Croup Remedy" constituted sufficieut designation of goods to 
warrant enjolotng appropriation of such name by fraud. 

Syl. 9 (IX. 420). Laches bars accounting for past proSts. 

Approved In Falrbank Co. v. Luekel, etc.. Soap Co., 116 Fed. 383, 
holding past proSts from Infringing " Gold Dust " trade-mark not 



J 



129 Notes on U. 8. Reports. 96 U. S. 25S-2U8 

lecorereble because of laches though future infringement by use of 
term "Gold Drop" restrained; Ide v. Trorllcht, etc, Carpet Co., 
115 Fed. 148, holding mere laches unaccompanied by circumstances 
lalsing estoppel will not bar action for infringement of patent; 
N. E. Fairbank Co. y. Luclcel, King & Cake Soap Co., 106 Fed. 499, 
holding delay of three years with knowledge of use of mark " Gold 
Drop" barred suit for infringing trade-mark "Gold Dust;" Old 
Times Distillery Co. v. Casey, etc., Swasey, lOi Ky. 620, 47 S. W. 
611, refusing injunction where two distilling companies using brand 
** Kentucky Comfort" ten years' priority of right being doubtful 
and defendant having built up large business. 

M U. S. 258-268, 24 L. 693, RAILROAD CO. T. MCCARTHY. 

SyL 3 (IX« 421). Railroad liable for connecting carrier's delay. 

Approved in Farmers* L. & T. Co. v. Northern Pac. R. R. Co., 120 
Fed. 877, holding receiver of railroad contracting for carriage of 
^ight over connecting water line liable for loss occasioned by 
delay by seizure of goods as contraband; Oliver v. Columbia, etc., 
H. R., 65 S. a 30, 43 S. B. 317, holding first carrier selling ticket 
OTer own and connecting line, limiting liability to own line, liable 
for injuries received on next line before change of cars. 

Syl. 6 (IX, 422). Ultra vires not invoked to defraud. 

Approved In Old Colony Trust Co. v. City of Wichita, 123 Fed. 
7^1 holding city sued by trustee in trust deed of telephone com- 
pany conveying its property to him, to compel city to protect 
^chises, cannot question validity of transfers of franchises; 
^wk Land, etc., Co. v. Wells, Fargo & Co., 7 Idaho, 62, GO Pac. 
^ refusing defendant mortgagee, finding mortgages did not cover 
^tire indebtedness for which given, cannot complain that original 
mortgagor acted ultra vires; Marion Trust Co. v. Crescent Loan, 
«tc., Co., 27 Ind. App. 457, 87 Am. St Rep. 264, 61 N. E. 691, hold- 
^S retention by corporation of benefits of unauthorized loan 
^^rived it of defense of ultra vires when sued on notes given; 
^ittmer Lumber Co. v. Rice, 23 Ind. App. 591, 55 N. E. 809, hold- 
^S ultra vires no defense to corporation surety where It had 
*^dy received consideration, consisting in furnishing lumber 
^^ building; Arbuckle Ryan Co. v. Grand Lodge, 122 Mich. 495, 
^ N. W. 859, holding city liable on contract to purchase engine, 
^Qgh at time charter indebtedness limit had been reached. 

SyL 8 (IX, 424). Party cannot change ground of defense. 

Approved In Oakland Sugar Mill Co. v. Fred W. Wolf Co., 118 
^^ 248, holding purchaser of mill machinery which satisfied 
^'•rranty given cannot, when sued on refusing to pay, set up de- 
fects not mentioned before suit brought; McDonough v. Evans 
Vol II — 9 



06 n. S. 2G8-290 Notes oa 17. S. Reports. 130 

Marble Co., 112 Fed. 63H, refusing to allow defense of failiire 
to furnish tiles contracted for to be entered on hearing, rach 
defense not being mentioned before; Brooks v. Laurent, 88 Fed. 
655, holding wife joining with husband in bill for relief, based 
upon lease of her property, cannot on hearing or appeal claim 
lease void in execution; State of Nebraska v. Board of County 
Comrs., etc., 60 Nebr. 571, 83 N. W. 734, holding county refusing 
payment for clock, on ground of prior payment to anoth^, can- 
not deny contract when first defense is decided against it; Con- 
tinental Ins. Co. T. Waugh. 60 Nebr. 352, 83 N. W. 83, holding 
insurance company, refusing payment of policy on ground of loss 
of insured books, cannot urge breach of condition as to inyen- 
tory; Virginia Coal, etc., Co. v. Louisville, etc., R. R. Co., 08 Va. 
786, 37 S. E. 314, holding receiving carrier, under Va. Code, I 1295, 
where owner did not release for excess freight charged by con- 
necting carriers above stipulated price. 

Distinguished in Scherar v. Prudential Ins. Co., 63 Nebr. 688, 
88 N. W. 600, holding refusal of insurance company to receive 
delinquent premium, assigning reason cancellation of policy, does 
not deprive it of defense of suicide when sued; Railroad Co. y. 
Klyman, 108 Tenn. 314, 01 Am. St. Rep. 760, 67 S. W. 476, hold- 
ing defense of conductor that continuous trip ticket partially used 
was "out of date," not inironsistent with company's claim of 
Invalidity when presented. 

96 U. a 268-270. Not cited. 

06 U. S. 271-278, 24 L. 815, TOWNSHIP OF ROCK CREDK T. 
STRONG. 

Syl. 1 (IX, 425). Authorizing railroad bonds include depot 
grounds. 

Approved in Jennings Banking, etc., Co. v. Jefferson, 30 Tex. Civ. 
535, 70 S. W. 1005, holding city charter authorizing bond issue 
to construct railroads to and from city includes purchase of laud 
for depot purposes. 

Syl. 2 (IX, 426). Provisions in bond issue act directory. 

Approved in Board of Comrs. v. Vandriss, 115 Fed. 870, holding 
Kan. act March 6, 1887, authorizing township board to issue 
bonds payable in twenty years subject to recall after ten years, 
twenty-year limit directory. 

Distinguished In Campbellsville L. Co. v. Hubbert, 112 Fed. 
725, holding Ky. act February 27, 1882, § 10, authorizing court 
to collect tax to pay bond Judgment, making Judgment a lien, 
plies only to bonds so stipulated on face. 

06 U. S. 27fr-200. Not cited. 



131 Notes on U. Q. Reports. 90 U. S. 291-^327 

% TJ. 8. 291-312, 24 L. 731, BUEBANK y. CONRAD. 

fiyl 2 (IX« 428). Govemment not favored in confiscation sale. 

Approved In Hoffeld v. United States, 186 U. S. 276, 46 L. 1162, 
22 Sup. Ct. 929, holding purchaser of original rights of entryman 
of public lands, at execution sale against him, is not assign within 
21 Stat at Large, 244, 287. 

W U. 8. 312-^16, 24 L. 816, SAN ANTONIO T. BiBHAFFY. 

87L (IX, 428). Holder commercial paper presumed bona fide. 

Approved in Hicks v. Cleveland, 106 Fed. 463, holding uncon- 

stitational S. G. Stats. 22 and 23 Stat at Large, prohibiting 

^^^ of tax to pay township bonds as impairing contracts of bona 

Me headers; Pickens Tp. v. Post 99 Fed. 662, holding recital \n 

. moQicipal bonds that all conditions for issue have been complied 

cooclnde city from alleging irregularities as against bona fide 

'solders; MlUer v. Perris Irr. Dist, 99 Fed. 145, holding irrigation 

^'^ct issuing bonds reciting issuance " by authority of and pur- 

'^''^t to act Cal. March 7, 1887, estopped against fair holders to 

*^ege irregularities. 

S^l 3 ax, 429). City bound by recitals in bonds. 

Approved in Wesson v. Town of Mt Vernon, 98 Fedw 809, hold- 
^ township authorized by Illinois issuing bonds for refunding 
''^^^btedness reciting compliance with conditions of act is bound 
^^ t>ona fide holders though recitals false. 

^^I 6 (IX, 430). Act may include lawful means necessary. 

^X>proved in Pickens Tp. v. Post 99 Fed. 661, upholding under 
^' ^* Const, art 2, I 20, statute having single object issue of bonds 
^^toh is expressed In title; St. Anna's Asylum v. Parker, 109 La. 
^^^> 33 So. 616, upholding under La. Const 1845, exemption from 
^^^^tion in act to incorporate asylum. 

^^1. 8 (IX, 431). Granting new trial discretionary. 

-Approved in United States v. Rio Grande Dam & Irrigation Co., 
18* XJ. S. 423, 46 L. 622, 22 Sup. Ct 430, holding error of trial court 
^ Refusing to grant motion for rehearing not cause for reversal 

^ TJ. S. 316-324. Not cited. 

W U. S. 324rn327, 24 L. 635, AMES v. QUIMBY. 

Syl. 1 (IX, 432). Construing contract providing change of price. 

Approved in Bank of Horton v. Brooks, 64 Kan. 288, 67 Pac. 860, 
0^ holding surety discharged by agreement of holder to extend 
maker's time on consideration that maker would enter contract for 
l)eiiefit of third party. 



96 D. S. 32S-339 Notes on U. S. Reports. 132 

96 U. S. 328^331, 24 L. 818, PULLMAN v. UPTON. 

Syl. 1 (IX, 432). Nonassumpsit by shareholder admits corporate 
existence. 

Approved in Nashua Sav. Bank t. Anglo-American, etc., Ck)., 108 
Fed. 767, holding foreign corporation suing stockholders in United 
States court for calls not restricted to remedy of State trying case* 
but may enforce pa*sonal liability. 

SyL 4 (IX, 433). Assignee liable for unpaid balances. 

Approved in Rankin v. Fidelity Trust Co., 189 U. S. 246, 23 Sup. 
Ct 554, 47 L. 794, holding pledgee of national bank stock taken as 
collateral security for loan not personally liable under U. S. Rev. 
6tat., I 5151, unless assuming ownership; Campbell v. American 
Alkili Co., 125 Fed. 209, 210, holding defendant for assessments In 
calls made while he was stockholder though call not payable until 
after stock had been transferred; Hurlbut v. Arthur, 140 Cal. 110, 73 
Pac. 737, holding under Cal. Civ. Code, §1 321, 322, holder of bank 
stock as collateral security not so appearing on books liable as 
owner; Fouche y. Merchants' Nat. Bank, 110 Ga. 838, 36 ^S. B. 260, 
holding assignee of stock certificates reciting paid up and nonassess- 
able is held for subscription if stockholder at time of liability; 
Sigua Iron Co. y. Brown, 171 N. Y. 500, 64 N. E. 198, holding trans- 
feree of partly paid stock certificates liable to foreign corporation for 
future calls. 

SyL 5 (IX, 434). Transferee of stock liable for balance. 

Approved in Lantry y. Wallace, 182 U. S. 554, 45 L. 1226, 21 Sup. 
Ct 885, holding purchaser of stock from national bank induced by 
fraud of bank liable to receiver of bank on statutory liability of 
stockholder; Matteson v. Dent, 176 U. S. 530, 44 L. 575, 20 Sup. 
Ct. 423, holding widow and heirs of shareholder to whom Probate 
Court allotted shares, allowing shares to remain in deceased's name, 
liable for assessments under Rev. Stat., §§ 5139, 5151, 5152. 

96 U. e. 332-339, 24 L. 775, PEUGH v. DAVIS. 

Syl. 1 (IX, 435). Equity looks to meaning of instrument 

Approved in Lyman v. Perlmutter, 166 N. Y. 432, 60 N. B. 24^ 
holding transfer of personalty to be absolute on nonpayment of note 
before transferrer's death, and void if so paid, a mortgage redeem- 
able by personal representatives; Tuggle v. Berkeley, 101 Va. 97, 
43 S. E. 203, holding widow's conveyance of residence and garden 
lot to son-in-law, he paying $600 delinquent taxes and covenanting 
to reconvey, constituted mortgage. 

Syl. 2 (IX, 436). Absolute deed shown mortgage by parol. 

Approved in Auten v. City Electric St Ry., 104 Fed. 399, admit- 
ting parol evidence to show deed to realty given by railroad to 
grantee as " trustee " was in fact mortgage to secure indebtedness 



13a * Notes on U. & Reports. 96 U. 8. 840,841 

of third partj; Kelly v. Leachman, 8 lAaho, 878, 84 Pac. 818, admit> 
ting parol evidence to show sum included in promissory note is 
identical with interest on pre-existing debt and given for it; Bigler 
T. Jack, 114 Iowa, 672, 87 N. W. 701, allowing parol evidence to 
8boi¥ defeasance to deed with right to repurchase though there 
W08 no proof th^t defeasance was omitted by fraud or mistake; 
Clark V. Duchenau, 26 Utah, 104, 72 Pac. 334, holding admissible 
Id action on note parol evidence that note was not given for loan 
but to secure defendant's verbal agreement to purchase mining 
stock. See 94 Am. St Rep. 235, note. 

Syl. 3 (IX, 436). Equity of redemption cannot be waived. 

Approved in Lyman v. Perlmutter, 166 N. Y. 432, 60 N. B. 24, 
liolding transfer of personalty to be absolute on nonpayment of 
note before mortgagor's death and void on such payment, mortgage 
redeemable by personal representatives. 

SyL 4 (IX, 437). Equity subsequently released for consideration 

good. 

Approved in Savings, etc., Soc. v. Davidson, 97 Fed. 717, uphold- 
ing right to redeem where bank mortgagee loaned mortgagee por- 
tion of redemption money intending to give interest adverse to 
mortgagor; Clarke v. Fast, 128 Cal. 426, 61 Pac. 74, holding burden 
on defendant claiming policy as purchaser wjiere originally he was 
mortgagee to show fairness of transaction. 

96 U. S. 340, 341, 24 L. 644, DIAL v. REYNOLDS. 

SyL 1 (IX, 438). Federal court cannot enjoin State court 

Approved in Texas Cotton Products Co. v. Stames, 128 Fed. 185, 
holding Rev. Stat, I 720, prevents Federal court from enjoining 
second suit in State court for sum less than $2,000, first suit hav- 
ing been dismissed without prejudice; Evans v. Gorman, 115 Fed. 
402, holding Federal court prohibited by Rev. Stat., § 720, from en- 
joining sale of lands by Probate Court under Arls. Const., art 7, § 34; 
Anltman, etc., Co. v. Brumfield, 102 Fed. 11, holding Federal court 
prohibited by Rev. Stat 720 from enjoining at suit of taxpayer ac- 
tion by county for back: assessments though violation of Fourteenth 
Amendment charged; Mills v. Provident Life, etc., Co., 100 Fed. 
348, holding Federal court prohibited by Rev. Stat U. S., § 720, from 
enjoining sale under execution, though at Instance of landowner 
"^Qger to action in State court; Leathe v. Thomas, 97 Fed. 139, 
holding order enjoining sheriff from collecting execution lawfully 
Issued to him within prohibition of Rev. Stat., I 720, against Fed- 
cnil courts staying proceedings in State court 

Syl 2 (IX, 439). Foreclosure — Adverse claimant's title not 
Wtigated. 

Approved in Savings & Trust Co. v. Bear Valley Irr. Co., 112 

^^ 703, holding question whether certificates of receiver are 



K 



86 U. S. 341-35a Notes od U. S. Reports. 

superior or tnTerlor to mortgage lien not adverse clHlm but one to 
be determined after proof taken; James v. Central Trnat Co., 98 
Fed. 434, bolding judgmeut creditor of railroad whose claim arose 
after Federal court's decree of sale may assert claim In Slate court; 
Wolf T. Harris, 20 Tei. Civ. 101, 48 S. W. 530, Uoldlag claim of 
adverse claimant under Independent outstanding title cannot be 
adjudicated In suit to foreclose trust deed; St Lawrence Go. t. Holt, 
51 W. Va. 370, 41 8. E. 3e2, holding decree of Circuit Court en- 
Joiulng sale of real estate by claimants thereto was Qnal adjudication 
of title. 
9C U. S. 341-353, 24 L. 650, HITCHCOCK v. GALVESTON. 

Syl. 1 IIX, 440). Council delegating ministerial worlc 

Approved In Cass County v. Gibson, 107 Fed. 3C9, upholding dele- 
gation to committee by Mlclilgan county supervisors nnder 1 How. 
Anno. Stat., g 4S3, of power to make changes In building; Ecroyd v. 
Coggeshall. 21 R. I. 7, 41 AU. 262, upholding delegation to City 
solicitor of duty £o procure deed to land conveyed to city, purchase 
having been negotiated by city; Harrisonburg v. Roller, 97 Va. 580, 
34 S. E. 524, upholding delegation by duly authorized city council 
of eiecution of order to raise sidewalk to street committee. 

DlstlnguiBhed In Surge v. Rocli'well Co., 120 Iowa, 493. 94 N. W. 
1103, holding void modification of contract by two of the tbree 
memhers of committee Intrusted by council with sinking well for 
water supply, third not being ootl&ed. 

Sjl. 2 (IV, 440). City Uable for special Indebtedness. 

Approved in City of Covington v. Nadaud, 103 Ky. 461, 46 S. W. 
600, upholding power of city under Ky. Stat., H 3006, 3100, 3101, to 
order pavement at property-owner's coat though prevented from 
iBBuing bonds beyond limit reached. 

Distinguished In State of Washington v. Pullman, 23 Wash. 587, 
fi3 Pac. 206, holding city contracting to extend water system and 
furnish water without complying with Hill's Code Wash., Sf 096, 
€97, requiring ttaree-dfths vote authorizing, not estopped to deny 
power. 

Syl. 3 (IX, 441), City liable though bonds Issued void. 

Approved in Houston & Texas Cent. R. R. Co. v. Teias, 177 U. S. 
91. 44 L. 685, 20 Sup. Ot. 554, holding warrants alleged to be in- 
valid, given to State olflcera In payment, do not make payment void, 
enabling State to repudiate; United States v. Saunders, 124 Fed. 
131. awarding mandamus compelling payment of Judgment on 
municipal bonds Issued under Comp. Stat. Nebr. 1001, not llmitlug 
liability to special tax levy; Fernald v. Town of Oilman, 123 Fed. 
802, holding city Issuing bonds without authority but for lawful 
corporate purpose, though not liable thereon, answerable to holders 



135 Notes on U. S. Reports. 96 U. S. 341-358 

for monej had and received; Geer v. School Dist No. 11« 111 Fed. 
689, 690, holding school district cannot escape liability because 
bonds issued for money used for lawful purpose of erecting school- 
house long used were void as excess issue; City of Valparaiso v. 
Valparaiso City Water Co., 30 Ind. App. 323, 65 N. B. 1066, hold- 
ing dty liable to water conlpany for rental of hydrants though 
exdusive use of street for fifty years in water franchise was ultra 
Tires; Marion Trust Co. v. Crescent Loan, etc., Co., 27 Ind. App. 
457, 87 Am. St Bep. 262, 61 N. E. 691, holding loan association 
empowered to borrow money cannot plead ultra vires to prevent 
recovery where unauthorized loan was used to pay retiring mem- 
bers; International Bldg., etc., Assn. v. Bratton, 24 Ind. App. 660, 
56 N. E. 107, holding building and loan association cannot impeach 
contract for loan on mortgage where mortgagor has made the 
seyenty-eight monthly payments required in C9ntract; Witt'm^ 
Lnmbtf Co. v. Bice, 23 Ind. App. 591, 55 N. E. 869, holding lumber 
company becoming surety on cbntractor's bond securing mechanics' 
liens, on consideration of furnishing lumber, having received 
benefit cannot impeach bond; Cedar Bapids Water Co. v. Cedar 
Rapids, 118 Iowa, 242, 91 N. W. 1084, holding under Iowa Code 
1873, 473, grant by city of exclusive water privileges for twenty- 
five years with equal right thereafter void as to extension; Fort 
Dodge Electric Light, etc., Co. v. Fort Dodge, 115 Iowa, 575, 89 
N. W. 10, holding city liable for amount of assessment certificates 
illegally levied on nonassessable property and received in payment 
by payement contractor; Cherryvale Water Co. v. Cherryvale, 65 
Kan. 235, 69 Pac. 181, holding city having accepted option to buy 
water plant cannot repudiate contract and declare forfeiture of 
franchise; Kansas City v. Gas Co., 9 Kan. App. 331, 61 Pac 319, 
holding city cannot escape liability for gas used according to con- 
tract entered prior to Kan. Laws 1895, chap. 259, limiting gas tax 
levy; Hughes v. Board of Comrs. of Caddo Levee Dist, 108 La. 
1^2, 32 So. 220, holding Louisiana State levee board on contract for 
building levee, where warrants issued though warrants alleged to 
be ultra vires; Municipal Security Co. v. Balder County, 39 Or. 401, 
® Pac. 371, holding property conveyed to county and paid for in 
warrants void as being issued beyond limit of indebtedness re- 
<^erable on returning warrants; Tennessee Ice Co. v. Baine, 107 
l^enn. 156, 64 S. W. 30, holding creditor of ice company can recover 
^or beer sold latter though contract was ultra vires when made, 
^d company now insolvent. 

l^istingulsned in Travelers' Ins. Co. v. Mayor, etc., 99 Fed. 669, 
holding city not liable on void bonds issued in payment for railway 
^^es in foreign corporation which purchase city could not legally 
make. 



96 U. S. 854-369 Notes on U. 8. Beporta. 

96 U. S. 354-360. Not cited. 

96 U. S. 360-366, 24 L. 819, UNITED STATES T. SIMMONS. 

Syl. 1 (IX, 445). Indictment must apprise accused of offense. 

Approved in Dalton t. United States, 127 Fed. 546, holding in- 
sufficient indictment charging defendant with scheme to defraud 
in sending to certain newspapers a certain advertisement concern- 
ing International Aural Clinic; Breese v. United States, 106 Fed. 
683, 688, upholding indictment charging defendant in words of stat- 
ute with embezzling, abstracting, and misapplying moneys, funds, 
and credits; Utah v. Williamson, 22 Utah, 255, 62 Pac. 1024, up- 
holding information charging rape following statute and not alleging 
that prosecutrix was not defendant's wife; State y. Parkersburg 
Brewing Ck>., 53 W. Va. 596, 45 S. B. 925, sustaining indictment 
under W. Va. Code. 1899, chap. 32, I 19, charging defendant 
with "knowingly, and unlawfully permitting intoxicating liquors 
sold, contrary to law;" dissenting opinion in Rieger v. United States, 
107 Fed. 934, majority upholding indictment under Rev. Stat, I 5209, 
for criminal misapplication of bank funds describing note wrong- 
fully discounted, and alleging act done for benefit of accused. 

Syl. 2 (IX, 445). Judgment in indictment must be bar. 

Approved in In re Bellah, 116 Fed. 72, 75, upholding petition in 
involuntary bankruptcy averring that defendant received certain 
sum and has since concealed it with intent to defraud creditors; 
Milby V. United States, 109 Fed. 641, holding insufficient indictment 
based on Rev. Stat., I 5480, charging defendant with scheme to 
defraud where no intent to defraud addressee shown; United States 
V. Tenney, 2 Ariz. 37, 8 Pac. 296, upholding indictment under Ed- 
munds act charging polygamy substantially in language of statute, 
adding charge of cohabitation after marriage; Johns v. State, 159 
Ind. 415, 65 N. E. 288, holding insufficient for uncertainty informa- 
tion in language of Burns' Rev. Stat Ind. 1901, I 2178, charging 
obtaining money on foot race " by duress and fraud." 

Syl. 10 (IX, 447). One sufficient count enough. 

Approved in Milby v. Unitt^ States, 120 Fed. 5, affirming con- 
viction based on several counts, some being defective, but one 
charging use of mails with intent to defraud being good undor Rev. 
Stat, § 5480. 

96 U. S. 366-369, 24 L. 852, UNITED STATES v. VAN AUKBN. 

SyL 1 (IX, 448). Obligations payable in goods allowed. 

Approved in Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 
219, 66 S. W. 925, holding checks issued to employees of timber 
company payable in merchandise at company store not within 
Sandf. & H. Dig., chap. 18, Arkansas. 



I3T Notes on U. S, Reports. 96 U. S. 369-378 

9« U. S. S69-37a 24 L. S53, EX PAHTE SCHOLI.ENBEBGER. 

S;L 1 (IX, 448). Corporation accepting statu to rj service on 
agent. 

Approved to Gale v. Southern B. & L. Assn.. 117 Fed. 735, boldiag 
service on agent of foreign corporation under Code Va. 18ST, i 1104. 
Gufflcient service within 18 Stat. 470; In re Mngid-Hope Silk Co., 110 
Fed. 353, upholding service on coDimissloner of corporation In lu< 
voluntary bankruptcy proceedings in MasBacbuBetta agalnat Maine 
coriKiratloii witb place of business In Massachusetts; Bellly v. Phil- 
adelphia, etc., Ry., 109 Fed. 352, upholding under N. T, Code 
Civ. Proc., { 432, providing for service in foreign corporation, ser- 
vice on director in suit against corporation on contract; L. E. Water- 
man Co. V. Partner Pen Co., 107 Fed. 143, holding order suatalnlng 
motion to set aside process served on foreign corporation, not bLow- 
Ing corporation bad no place of business In Jurisdiction, not Qnsl 
decision; Denver, etc., R. R. Co. v. Roller, 100 Fed. 742, upholding 
nnder Code Civ. Proc. Cat., i 411, service on general agent solicit- 
ing freight and passengers for foreign railroad having office but no 
line within 6tBte. 

Distinguished In United StAtes v. S. P. Shotter Co., 110 Fed. 2, 
boldlttg West Virginia corporation having regular place of business 
In Alabama not Inhabitant of Alabama for Federal jurisdiction. 

Sjl. 3 (IX, 450). Federal courts Included in Peunsylvanla statute. 

Approved in Empire Min. Co. v. Propeller, etc.. Co., 108 Fed. 902, 
boldlng nonresident defendant who has waived privilege of suit only 
wherecitizenBoannot object to removal of such suit to Federal court; 
WCord Lumber Co. v, Doyle. 97 Fed. 23. holding Wisconsin cor- 
poration liable '.a Federal court In action on liability arising in 
Minnesota before corporation removed office from State. 

Syi. B {IX, 451), Corporation cannot change residence. 

Approved In Freeman v. American Surety Co., 116 Fed. 551. 
boldlng New York corporation, American Surety Company cannot 
be dtlcen or resident of any other State for Federal Jurisdiction. 

Distinguished In Thompson v. Soutliern Ry„ 130 N, C. 144, 41 
S. EL 10, holding Virginia corporation becoming domestic corpora- 
tion of North Carolina cannot, under 25 Stat. 434, remove suit with- 
out alleging nonresldence in North Carolina. 

Sjl. 6 (IX, 453). Corporation agents, unprohibited, do business 
anywhere. 

See 85 Am. St Rep. 921, note. 

SyL 7 (IS, 454). Corporation waiving exemption of citizenship 
Jarlsdlctlon. 

Approved In Foullc v. Gray, 120 Fed. 162, holding suit brought lu 
court of West Virginia between citizen of Ohio and Kentucky re- 




a D. S. 3T9-3SS 



I U. S. Reports. 



138 



I, 



movable to Federal court only where both parties waive qneetloD 
of JurlBdlctlon; Lewis v. American Naval Stores Co.. 119 Fed. 394, 
30(j, holding New JetEe; corporation appearing tn Circuit Court In 
AlabfltnB waived persoual exemption and gave court Jurlsdlctloa 
to appoint receiver for property tn Louisiana; Fosha v. Western 
Union TeL Co., 114 Fed. 702, holding general appearance of non- 
resident corporation waived personal privilege of suit In place of 
dtiaensbip given by 24 Stat. 652; DufT v. Hlldreth. 183 Mass. 441, 
67 N. B. 357, holding waiver by defendant of suit In Maine court 
does not prevent his remorlng cause brought by Pennsylvania 
citizen In Massachusetts court. 

Distinguished In Piatt v. Masaachueetts Real Estate Co., 103 Fed. 
706, 707, holding corporation of Maine complying with Massachusetts 
requirements for operating therein has not consented to waive rlgbt 
under judiciary act 18ST-88, of trial where citizen, 

SyL S (IX, 455). Mandamus to compel Circuit Court's action. 

Approved In In re Grossmayer, Petitioner, 177 V. 8. 49. 44 L. 666, 
20 Sup. Ct. 536, awarding mandamus to compel Circuit Court to 
enter Judgment by default In action by Texas citizen against New 
Tork dUzen; Raleigh v. First Jud. DIat. Ct,, 24 Mont, 313, 61 Pac. 
994, awarding mandamus to compel District Court to entertain 
will contest where erroneously struck from flies on ground of 
former contest on ottier grounds. 

Distinguished in Crooks v. Fourth Diat Ct Of Utah, 21 Dtab, 
lOS, 59 Pac. 532, refusing mandamus to compel review of declsioa of 
District Court dismissing appeal, such decision by Const. Utah, art. 
8, i 9, being final. 
06 D. S. 379-388, 24 L. 668. WISCONSIN v. DDLUTH. 

'Syl. 1 (I'X., 456). CongresBtonal oversight harbor Improvement 
exclusive. 

Approved In United States v. Lynch, 188 U. 8. 4C6, 23 Snp. Ct, 
355, 47 L. 547, upholding Circuit Court's Jurisdiction of suit against 
government for Injury to realty resulting from improvements la 
Savannah river; Louisiana v. Texas, 176 U. 8. 18. 44 L. 354, 20 Sup. 
Ct 257, holding State of Louisiana cannot sue State of Texas for 
action of Texas health officer In enforcing quarantine regulations 
interfering with Interstate trade; State v. Frost 113 Wis. 656, 89 
N. W. 923, holding Information In name of State to restrain rail- 
road receiver appointed by Federal court from destroying road, 
removable civil suit within Or. Acts I8S8. 

Distinguished In Missouri v. Illinois, 180 U. S. 228, 44 L. 507, 21 
Sup. Ct 339, holding State of Missouri entitled to equitable relief 
from threatened Injury from transpottation of sewage bj Cbicaso 
sanitary district 



d 



139 Notee on U. S. Reports. 96 U. S. 388-424 

96 U. S. 388-395, 24 L. 777, HUNTINGTON v. SAVINGS BANK. 

SyL 4 (IX« 457). National bank not commercial partnership. 

Approved in Barrett v. Bloomfield Sav. Inst, 64 N. J. Eq. 437, 54 
AtL 548, holding managers of saving institution trustees of public 
fhmchise and maj be restrained by depositor from breach of trust 
by winding up. 

96 U. S. 395-404, 24 L. 637, DOBBIN'S DISTILLERY v. UNITED 
STATES. 

SyL 1 (IX, 458). Landowner tolerating distillery same as distiller. 

Approved In United States v. Two Hundred and Twenty Patented 
liachines, 99 Fed. 561, subjecting leased machinery to forfeiture 
under Rev. Sfat, § 3400, providing forfeiture to government of all 
machinery used by manufacturer violating internal revenue law. 

SyL 2 (IX« 458). Revenue — Distiller's unlawful acts bind owner. 

Distinguished in United States v. One Bay Horse, etc., 128 Fed. 
208, holding Rev. Stat, §§ 3450, 3453, inapplicable to warrant for- 
feiture of plaintifTs horse and buggy for husband's violation of 
oleomargarine law (24 Stat 200), limiting such forfeitures. 

9S V.&. 404-421, 24 L. 746. McPHERSON v. COX. 
SyL 1 (IX« 458). Contingent fee not champertous. 
-ilpproved In MuUer v. Kelly, 116 Fed. 545, upholding contract 
'oxr contingent attorney fee where not champ«*tous and where client 
PCi^^s costs; dissenting opinion m Miller v. Kelly, 125 Fed. 216, 
OA^ority holding client injured in railway accident suing attorney 
*o recover money received by latter from company entitled to have 
jrtrr determine fairness of contract 

6yL 2 (IX, 459). Oral contract performable in year good. 
8ee notes, 83 Am. St Rep. 169, 171. 

Distinguished in Blest v. Versteeg Shoe Co., 97 Mo. App. 150, 70 
8. W. 1085, holding contract of salesman not to be performed within 
<^ year within Statute of Frauds though parties may terminate con- 
tract within year. 

8yl 4 (IX, 460). Hostility of trustee cause for removal. 

Distinguished in Savings & Trust Co. v. Bear Valley Frr. Co., 112 
P^ 704, sustaining exceptions to answer in foredosure suit setting 
^P contracts and certificates alleged in his cross-bill to be void; 
^ re Lewensohn, 98 Fed. 581, holding animosity or bias of trustee 
^ bankruptcy chosen by creditors and not otherwise incompetent 
1^0 cause for removaL 

^U.& 421-124. Not died. 



96 U. S. 424-440 Notes on U. S. Reports. 140 

96 U. S. 424-429, 24 L. 834, WALKER v. JOHNSON. 

Syl. 1 (IX, 460). Parol contract performable within year good. 

Distinguished in Biest y. Ver Steeg Shoe Co., 97 Mo. App. 150, 
70 S. W. 1085, holding salesman's contract to seiTe more than a 
year though terminable by parties is within Statute of Frauds. 

96 U. S. 430-432, 24 L. 703, BAIRD v. UNITED STATES. 

Syl. 1 (IX, 461). Part payment unliquidated debt, no satisfaction. 

Approved in Chicago, Milwaukee, etc.. By. Co. v. CUirk, 178 U. S. 
366, 44 L. 1106, 20 Sup. Ct 929, holding where amount due in dis- 
pute acceptance of sum less than disputed amount and conceded to 
be due extinguishes claim; Kilham y. Wilson, 112 Fed. 573, hold- 
ing suit by agent to recover agreed compensation for land sale and 
amount additional precludes equitable suit for accounting; Riggs ^. 
Home Mut. Fire, etc., Assn., 61 S. C. 457, 39 S. E. 617. holding accept- 
ance by insured of less than sum specified in policy in satisfaction 
of loss, though alleged to be obtained by fraud, discharges claim. 

Syl. 2 (IX, 461). Recovering part bars suit for remainder. 

Approved in L. Bucki & Son L. Co. v. Atlantic L. Co., 109 Fed. 
415, holding set-oflf, in suit for breach of instalment contract for 
sale of logs, based on warranty to size of certain logs barred pur- 
chasers' rights on warranty; De Weese v. Smith, 97 Fed. 813, holding 
recovery of one assessment from stockholder of insolvent national 
bank by its receiver though for less than par value of stock bars 
further action; Huffman v. Knight, 36 Or. 583, 60 Pac. 207, holding 
dismissal of replevin suit as to portions of property involved did 
not prevent suit in trover to recover same. 

Distinguished in Deweese v. Smith, 106 Fed. 442, holding comp- 
troller of currency can make more than one requisition on stockhold- 
ers of insolvent national bank where aggregate sum assessed not 
due at once. 

96 U. S. 432-449, 24 L. 760, MURRAY v. CHARLESTON. 

Syl. 1 (IX, 461). Ordinances authorized by legislature — State 
laws. 

Approved in Mercantile, etc.. Deposit Co. y. Collins Park R. R., 
09 Fed. 815, 820, holding municipal franchise for street railway 
under Ga. Const, art. 3, § 7, prohibiting legislative grant of franchise 
without corporate consent, becomes law of State. 

Syl. 2 (IX, 462). Nonresident's debt not taxable property. 

Approved in Pyle v. Brenneman, 122 Fed. 789, holding deposit 
in bank creates debt only and situs is domicile of depositor, hence 
not taxable in dojnicile of bank; Williams v. Pope Mfg. Co., 52 La. 
Ann. 1439, 78 Am. St Rep. 411, 27 So. 861, holding married woman 
sui Juris in Mississippi can sue in Louisiana to recover damage claim 
for personal injuries, such claim not being property, hence following 
person. 



141 Notes on U. S. Reports. 96 U. S. 450-461 

Distinguished in State y. Keokuk, etc., Ry. Co., 153 Mo. 164, 165, 
77 Am. St Rep. 707, 708, 54 S. W. 660, holding property of railway 
company taxable to pay for county subscriptions to its stock, thou^ 
county property exempt. 

SyL 4 (IX, 462). Tax in city's stock indebtedness void. 

Distinguished in St Paid Gaslight Co. v. St. Paul, 181 U. S. 150, 
45 L. 792, 21 Sup. Ct 578, holding St Paul ordinance for removal 
of gas-lamps with proTision for cessation of Interest payable by 
city's contract not impairment thereof. 

SyL 5 (IX, 463). State taxing creditor's debt due him. 

Approved in Comptoir Nat, etc., de Paris v. Board of Assessors. 
52 La. Ann. 1329, 27 So. 805, holding nonnegotiable notes made rep- 
resenting loans in Louisiana by agent of French corporation operat- 
ing there held in Louisiana taxable under laws of State. 

SyL 6 (IX, 463). States contracting stand with individual. 

Approved in State Sav. Bank v. Barret, 25 Mont 119, 63 Pac. 
1032, holding unconstitutional Mont Laws 1897, p. 124, repealing 
PoL Code, S 1601, allowing 7 per cent interest on State warrants 
as impairment of contract 

(IX, 461). Miscellaneous. 

Approved in Oslikosh Water- Works v. Oshkosh, 187 U. 8. 439, 23 
Snp. Ct 234, 47 L. 250, upholding charter amendments requiring 
claims against city to be presented and disallowed before suit 
brought providing for appeal from disallowance, limited to twenty 
days. 

90 U. a 450-461, 24 L. 752, RAILROAD CO. v. VANCE. 

SyL 2 (IX, 465). Adopting foreign corporation creates domestic 
corporation. 

Approved in Goodwin v. New York, N. H. & H. R. R. Co., 124 Fed. 
358, 361, holding corporation incorporated in Massachusetts and Con- 
necticut not suable in Circuit Court for Massachusetts by citizen 
tlicreof : Howard v. Gold Reefs, 102 Fed. 658, upholding declaration 
showing defendant a corporation nonresident in State of suit 
presumed even though name and business, Gold Reefs' of Georgia, 
might indicate residence; Debnam v. Southern Bell Tel. Co., 126 N. 
C. 845, 36 S. B. 274, holding N. C. Acts 1899, chap. 62, providing 
means for foreign corporations to become domestic, meant to rein- 
corporate and make citizen, not to license. See 85 Am. St Rep. 90S, 

note. 

Distinguished in Seattle Gas, etc.. Electric Co. t. Citizens' Light, 
etc., Power Co., 123 Fed. 593, 594, enjoining New Jersey corporation 
not empowered to engage in gas business, not reincorporated in 
Washington, from engaging in such business in latter State; dis- 
senting opinion in Calvert v. Railway Co., 64 S. C. 154, 41 S. E. 968, 
majority holding railroad incorporated in Virginia nonresident of 



06 U. S. 461-491 Notes on U. S. Reports. 142 

South Carolina for jurisdictional purposes notwithstanding com- 
pliance with act 1896, making it domestic 

96 U. S. 461-466, 24 L. 672, THE LADY PIKE. 

SyL 1 (IX, 465). Second appeal — Matters brought for re-examina- 
tion. 

Approved in Yazoo & M. V. R. R. Co. t. Adams, 180 U. 8. 7, 45 
L. 401, 21 Sup. Ct. 242, holding decision of question of impairment 
of contract by State Supreme Court and remanding case to lower 
court precludes raising question on writ of error. 

96 U. S. 467-491, 24 L. 779. CASEY v. CAVAROC. 

SyL 1 (IX, 466). Collaterals may be mortgaged or pledged. 

Distinguished in Samson y. Rouse, 72 Vt. 426, 48 Atl. 667, holding 
pledgee of notes as collateral to note of pledgor loses lien on retui*n 
of pledged notes for collection, where other notes to be returned. 

Syl. 2 (IX, 466). Possession necessary to constitute valid pledge. 

Approved in Dunn v. Train, 125 Fed. 222, holding placing of pledged 
product of paper-mill upon mill premises and undn* control of mill 
employee as agent of pledgee, sufficient change of possession; Mar- 
den V. Phillips, 103 Fed. 197, holding unrecorded bill of sale ^f goods, 
vendor retaining possession until bankruptcy, gives vendee no 
priority oyer trustee; American Pig-iron, etc., Co. v. German, 126 
Alu. 239, 28 So. 614, holding placing of pledged iron marked with 
pledgee's name upon land of pledgor used by pledgee gives sufficient 
possession as against pledgor's wrongful transferee; Chitwood v. 
Lanyon Zinc Co., 93 Mo. App. 230, holding oral transfer of ore to 
plaintiff who never took possession created no pledge, and when 
pledgor assigned lease assignee could sell ore; Storts v. Mills, 93 Mo. 
App. 208, holding collateral notes not in possession of either pledgor 
or pledgee cannot be pledged to secure existing debt; Buffalo, etc., 
Ins. Co. r. Third Nat. Bank of Buffalo, 162 N. Y. 170, 56 N. E. 523, 
holding assignee in good faith of bank stock takes priority to bank 
where owner without surrendering possession agreed to pledge to 
bank to secure indebtedness. 

Distinguished in In re Wittenberg, etc., Co., 108 Fed. 597, holding 
note reciting deposit of policy on mortgaged property with mort- 
gagee-payee as collateral created equitable lien not pledge requiring 
possession. 

Syl. 3 (IX, 467). Temporary redelivery to pledgor no relinquish- 
ment 

Approved in Dunn v. Train, 125 Fed. 224, upholding pledge uf prod- 
uct of paper-mill where product left in mill premises in charge of 
mill employee acting as agent for pledgee; Samson v. Rouse, 72 Vt. 
427, 48 Atl. 667, holding pledgee of notes as collateral loses lien 
when notes returned for collection, pledgee to receive other notes in 
pledge. 



1413 Notes on U. S. Reports. 96 U. 8. 492-4S13 

SyL 4 (IX, 467). Returning pledge for collection destroys pledge. 

ApproTed in Samson y. Rouse, 72 Vt 428, 48 AtL 667, holding 
pledgee of notes as collat^al loses lien on returning notes for col- 
lection, pledgee to receive other notes in pledge. 

SyL 6 (IX, 468). Assignee take property subject to equities. 

Approved in In re Kellogg, 112 Fed. 55, holding under N. Y. Laws 
1897, chap. 418, S 112, prohibiting reservations in unrecorded condi- 
tional sales, trustee of bankrupt, unrecorded vendee gets vendee's 
• tiUe; Chattanooga Nat Bank v. Rome Iron Co., 102 Fed. 76P. uphold- 
ing against trustee in bankruptcy pledge of equ!ty in designated 
iron to secure renewal notes issued four months before bankruptcy. 

9G U. S. 492-499. Not cited. 

96 U. S. 499-513, 24 L. 836, MAINE CENT. R. R. CO. v. MAINE. 
SyL 1 (IX, 469). Railways consolidating lose previous exemption. 

Approved in Yassoo & M. V. R. R. Co. v. Adams, 180 U. S. 21, 45 
!«. 400, 21 Sup. Ct 247, holding consolidated railway composed of 
roads previously exempt from taxation is new company within Miss. 
Const. 1890, S 180, and subject to taxation thereunder. See notes, 
89 Am. St Rep. 614, 634. 

Distinguished in Hale t. Ck>ffln, 114 Fed. 571, holding receiver 
appointed under laws of Minnesota after property of insolvent cor- 
p(M*ation administered has no right at common law to sue stock- 
b<Mer; dissenting opinion in Minor v. Brie R. R., 171 N. Y. 575, 
64 N. E. 457, majority upholding Laws 1895, chap. 1027,'** mileage- 
book act," AS to corporations thereafter reorganized, such corpora- 
tion being subject to liabilities imposed on railroads. 

SyL 2 (IX, 469). Railways consolidating form new corporation. 

Approved in Matthews v. Board of Comrs., 97 Fed. 4(M, holding 
right of railway directors to fix rates does not devolve upon succes- 
sor in foreclosure, successor being new company. 

SyL 3 (IX, 470). State reserving power may alter rights. 

Approved in Union Pac. Ry. v. Mason City Ry., 128 Fed. 239, 
holding purchaser of railroad subject to amendment same as pred- 
ecessor and bound by decision directing it to allow use of bridge 
by another railroad; Johnson v. Goodyear Min. CJo.. 127 Cal. 18, 78 
Am. St Rep. 30, 50 Pac. 309, holding unconstitutional CaL Stat. 1897, 
p. 231, requiring corporations to pay employees at least monthly, 
giving latter lien on property on default and attorney's fees on suit; 
Deposit Bank of Owensboro v. Daviess Co., etc., 102 Ky. 187, 212, 
39 S. W. 1033, 1040, holding acceptance by banks previously exempt 
from taxation of Ky. Gen. Stat, chap. 92, art 2, including act Feb- 
ruary 14, 1850, giving State right to amend charters, surrender of 
exemption; Appendix, 97 Me. 593, upholding Me. Pub. Law 1895, 
chap. 18, S 1, providing reference of disputed loKses to board or 
waiver thereof as condition to bringing suit; Lincoln St. Ry. Co. v. 



96 U. S. 51.V520 Notes on U. S. Reports. 144 

City of IJncoln, 61 Nebr. 132, &4 N. W. 8C9, upholding special assess 
ments levied on street railroad for Improving street in conformity 
with rest of street where railway failed to pave, no express exemp- 
tion granted. See 89 Am. St Rep. 626, note. 

96 U. S. 513-520, 24 L. 732, ATHERTON v. FOWLER. 
Syl. 2 (IX, 472). Entry on entryman in possession onlawfoL 

Approved in M'lntosh v. Price, 121 Fed. 718, holding locator !■ 
possession of placer claim exceeding legal width can hold whole as 
against relocator, though excess after locator chooses legal width, 
is void; Fee v. Durham, 121 Fed. 469, holding locator performing 
assessment work on claim leaving tools thereon from Saturday until 
Monday did not surrender possession enabling plaintiff to relocate 
on Sunday; Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 Fed. 
17, 18, holding lands not open to settlement where defendants In 
possession exploring fcnr oil though no oil yet found; Miller v. Chris- 
man, 140 CaL 447, 73 Pac 1084, 1066, upholding plaintiff's right to 
quiet title to oil lands lawfully entered by him where intervener 
entered after weUs were dug and adopted plaintiff's boundaries; 
Elwood V. Dickinson, 26 Wash. 642, 67 Pac 373, upholding plain- 
tiff*s claim where neither fully complied with Wash. Laws 1899, 
p. 209, governing fish-trap location but plaintiff was first on ground 
and warned defendant 

Distinguished in dissenting opinion in Fee v. Durham, 121 Fed. 
472, 474, majority holding locator ceasing work from Saturday until 
Monday leaving tools on daim did not surr^ider possession to enable 
relocation by plaintiff on Sunday; dissenting opinion in Cosmos Ex- 
ploration Co. V. Gray Elagle, etc, Co., 112 Fed. 20, majority holding 
lands not open to settlement where defendant was in possession ex- 
ploring for oil though no oil found at time of <dalm. 

Syl. 3 (IX, 473). Government policy toward land sales discussed. 

Approved in Cumberland, etc., TeL Co. v. Louisville, etc, TeL Co., 
110 Fed. 598, holding telephone company having constructed and 
operated line under nonexclusive grant by city entitled to be tree 
from interference by subsequent grantee of similar franchise. 

Distinguished in McGee v. Corbin, 96 Tex. 42, 70 S. W. 81, up- 
holding purchase of school bonds though affidavit for application 
and entry upon lands made before expiration of prior lease where 
expiration occurred before application. 

Syl 5 (IX, 473). Forcible intrusion gives no pre-emption rights. 

Approved in Thallman v. Thomas, 111 Fed. 279, holding defendant 
entering peaceably without notice of plaintiff's prior possession en- 
titled to ground lawful claim where plaintiff's patent did not indude 
bond dalmed; Cosmos, etc, Co. v. Gray, etc., Co., 1(A Fed. 40, hold- 
ing where defendant in possession exploring for oil, though none 
found, plaintiff cannot under 30 Stat 36, enter such land claiming; 



145 Kotes on U. S. Reports. 96 U. S. 521-539 

it ooomineral and agricultural; Nevada Sierra Oil Co. v. Home Oil 

Co., 98 Fed. 680, holding where defendant was in possession of oil 

claim engaged in working land, plaintiff cannot make secret entry 

tftereon to ground claim; Tidwell ▼. Chirlcahua Cattle Co., — Ariz. 

^-, 53 Pac 196, holding ejectment not maintainable for inclosed 

^SAd, with house and other improvements upon it, where defendant 

And grantors had maintained continual possession. 

9e V. S. 521-529, 24 L. 734, RAILROAD CO. v. RICHMOND. 

SyL 3 (IX, 475). Power to govern implies power to regulate. 

Approved in Erb v. Morasch, 177 U. S. 585, 44 L. 898, 20 Slip. Ot 
8S20, upholding city's power to regulate speed of trains within city 
limits. 

SyL 4 (IX, 475). Governing power implies police power 

Approved in Danville v. Hatcher. 101 Va. 534, 44 S. E. 727, uphold- 
iziis city ordinances enacted in good faith pursuant to authority 
A^legated by State, prohibiting sale of intoxicating liquors. 

SyL 5 (IX, 475). Regulating use of property not taking. 

Approved in Black River Co. v. Homberg, 96 Md. 437, 54 Atl. 83, 
imS>1^olding under Md. Laws 1894, chap. 607, proceedings against 
t^iixnpike company on its noncompliance with specifications of 
atute, whereby city obtained order forbidding charging tolls. 
T)i8tinguished in Mercantile, etc.. Deposit 0>. v. Collins Park 
R., 99 Fed. 817, holding suit to enjoin enforcement of city, ordi- 
najice having force of State law under Ga. Const, art. 3, S 7, pre- 
venting legislative franchise raises Federal question. 

SyL 6 (IX, 476). Law general governing all within purview. 

Approved in American Sugar Refining Co. v. Louisiana. 179 U. S. 

^ 45 L. 104, 21 Sup. Ct 46, upholding La. Const. 1879, art. 206. 

linposing license tax upon sugar refiners except those refining 

PitHiuct of own plantations; Railroad Co. v. Morascb, 8 Kan. App. 

^' 54 Pac. 325, upholding ordinance No. 522, Kansas City, Kan.. 

^hlbitlng running of railway engines and cars over six miles an 

flour within city limits, exempting street-car line therefrom; Ivins v. 

Hilton, 68 N. J. L. 563, 63 Atl. 203, upholding Trenton ordinance 

'^'^lilbiting erection of stationary or swinging signs over sidewalks 

^ Populous business district of city; Barber Asphalt Pav. Co. v. 

^xich, 168 Mo. (^4, 58 S. W. 941, upholding ordinance, authorized 

^ oliarter, imposing assessment on abutting property to cover cost 

^^ street pavement. 

^ XJ. S. 530-539, 24 L. 848, MOORE v. ROBBINS. 

^^L 3 (IX, 477). Land department jurisdiction ends with patent. 

approved in Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 
^^^ 12, holding entryman on lands under 30 Stat. 36, must show 
Vol. II — 10 



96 U. 8. 530-539 Notes on O. 8. Reports. JM 

land thns claimed to be unoccupied and nonmlnerat and bis 
selection most oe approved; Hnmbird t. Avery, 110 Fed. 470, hold- 
ing railroad company accepting 30 Stat. 620, providing for settle- 
ment of disputed land claims, must relinquish claim on such lands 
as purchasers from government retained. 

SyL 5 (IX, 478). Patent conclusive against government until 
annulled. 

Approved in Bockflnger v. Foster, 190 U. 8. 125, 23 Sup. Ct 839, 47 
L. 979, holding homesteader claiming under United States laws can- 
not sue trustees holding in trust under 26 Stat at Large, 109, since 
title still in government; Boynton v. Haggart, 120 Fed. 828, holding 
patent issued by auditor and governor of Arkansas conclusive until 
overturned in direct equitable proceeding for fraud or gross mis- 
take; Long V. Olson, 115 Iowa. 393, 88 N. W. 934, holding eommls- 
siooer of land office cannot cancel patent regularly Issued by United 
States to assignee of military bounty warrant seven years after 
issuance and without hearing. 

SyL 7 ' (IX, 479). Authorized action of land department con- 
clusive. 

Approved in King v. McAndrews, 111 Fed. 864, holding patent 
granted by land department where it had Jurisdiction not cdl- 
Interally attacked; O'Connor v. Gertgens, 85 Minn. 497, 89 N. W. 
872, holding determination by land department that plalntilTs 
grantor was bona fide purchaser, which being question of fact, la 
conclusive; McCord v. Hill, 117 Wis. 309. 94 N. W. 66, holdhig 
decision on facts concerning bona fides of entry in contest between 
conflicting claimants, within local land officer's Jurisdiction and 
subject to review. See To Am. St. Rep. 882, note. 

Syl. 8 (IX, 479). Land department's decision on facts ocm- 
elusive. 

Approved in Mauley v. Tow, 110 Fed. 245, holding where road 
not completed Iowa State patents issued to railroad for construc- 
tion passed no title In priority to homesteaders; Railway Go. t. 
Pratt, 64 Kan. 121, holding final decisions of land department In 
contest involving right to portion of public domains not open to 
collateral attack; Small v. Rakestraw, 28 Mont. 419, 72 Pac 748, 
holding no error of law appeared in holding residence in one pre- 
cinct for voting purposes precluded homestead residence In another. 

Syl. 9 (IX, 481). Equity reviews department's errors of law. 

Approved in Hy-Yu-Tse-Mil-Kin v. Smith, 119 Fed. 117, upholding 
Indian woman's right to allotment of land in Umatilla reservation, 
selected and possessed by her, but erroneously allotted to defendant 
In her absence; United States v. Beebe, 117 Fed. 679, holding order 
of secretary of treasury for reliquidation of entry on basis of «x- 



147 Notes on U. S. RepcurtB. 96 U. S. 539-541 

cbangB Falne of foreign coin instead of pure metal value reriewable 

^y courts; King y. McAndrews, 111 Fed. 864, holding where land 

department had Jurisdiction to grant patent In question, patent 

passes title and cannot be collaterally attacked; James y. Ger mania 

^o Co., 107 Fed. 600, holding erroneous ruling of land department 

in faror of applicant before land opened for settlement ahead of 

^^8t applicant after opening, decreeing change of title; McCord y 

Hill, 111 Wis. 513, 84 N. W. 32, holding where facts found entitled 

J. to pa. -tent, but secretary by mistaking law allowed H. to enter, J. 

has equitable interest enforceable in State courts. See 75 Am. St 

»ep. 882, note. 

Distlii^^ulshed in Cosmos, etc.. Go. t. Gray, etc., Oil Co., 104 Fed. 
44, holding courts haye no Jurisdiction to determine dispute over 
^lid claimed under 80 Stat 36, in lieu of forest reservation where 
claimant's selection not approved. 

Syl. lo (IX, 482). United States suing to cancel deed. 

I^istiiiguiBhed in Murphy v. Kirwan, 103 Fed. 108, holding where 
Unite^l States caused land containing lake to be surveyed and sold, 
land department cannot correct survey to injury of purchasers. 

^^^» 476). Biiscellaneous. 

^^X)roved in Power v. Sla, 24 Mont 250, 61 Pac. 470, holding in- 
sum^^^^ allegations of relocator of mining claim that prior holder 
^^ to perform $100 worth of work yearly since improvements 
^^'^^ satisfy Rev. Stat, S 2324. 

^ ^* S. 639-541, 24 L. 640, TENTH NAT. BANK v. WARREN. 

^X 1 (IX, 483). Mere nonresistance to Judgment not preference. 

^X^proved in Lopez v. Campbell, 163 N. Y. 347, 57 N. E. 503, 
nol^^jjg mere nonresistance of corporation which had no defense to 
^^^^ments obtained against it by defendants did not vitiate Judg- 
^^Hts under N. Y. stock corporation law, S 48; dissenting 
opinion In Wilson Bros. v. Nelson, 183 U. S. 210, 46 L. 155, 22 Sup. 
^ 81, majority holding failure to file voluntary petition In bank- 
^Ptcy five days before sale of property under Judgment was suffer- 
*^& creditor to obtain preference. 

Syl. 2 (IX, 483). Judgment unaffected though debtor neglect 
^tttlon. 

Approved in In re Nelson, 98 Fed. 77, holding entry of Judgment 
^^a.liist debtor pursuant to note with warrant of attorney Issued 
^*^ consideration five years before not preference within Wis. 
^^Ukruptcy act 1808. 

^distinguished in Wilson Bros. v. Nelson, 183 U. S. 198, 46 L. 151, 
^up. Ct. 77, holding failure to file voluntary petition five days be- 
sale under Judgment was suffering creditor to obtain preference 
^^^<lcr banltruptcy act 1898; In re Ed. W. Wright Lumber Co., 114 



9G U. S. MI^'UM; Notes on U. S. Reports. 14S 

Fed. 1014, holding onder Ark. bankruptcy act I W** czeciitkMi «C 
deed of trust to claimant to secure pajment of daim was prefi 



96 U. S. &U--&I3. Not cited. 

9C U. S. &I4-^^I9. 24 L. 674. INSURANCE CO. T. MOWRT. 

SyL 2 (IX^ 4S1). Prerioos rertal agreements merged in w UUag. 

Approred in H'Haster t. New York« etc., Ins^ Cou, 90 Fed. 883^ 
S6I. 867. holding oral statement of agent that policy took effect 
from delirery Inadmissible to gorem contract where policy ex- 
pressly required receipt of premium by company; Housekeeper 
PubL Co. T. Swift 97 Fed. 296. excluding erldence of parol 
meut by which plaintiff claimed written contract under which 
receiTed $25,000 for property was Inoperatire. and $25,000 
due: Orient Ins. Co. t. Prather. 25 Tex. Cir. 447. 440, 62 8L W. 8iL 
holding inadmissible parol eridence of insured's statement to agent 
of intent to take out additional insurance made before issuance of 
policy; Proridence. etc., Ins. Co. ▼. Board of Edu., etc^ Dist, 40 
W. Vs. 377. 38 S. E. 686» holding eridence of oral negotiatloiis 
preceding and accompanying policy, relating to walrer of forfettuore, 
not admissible; dissenting opinion in Northern Assur. Go. t. Grand 
View, etc Assn.. 101 Fed. 83. S5. majority holding binding policy 
conditioned against coocurrent insurance where agent haring an* 
thority to issue or withhold, issued policy with knowledge of ftets. 

SyL 3 (IX, 485). Representing future abandonment of iWt 
estops. 

ApproTed In American Surety Co. ▼. Ballman, 115 Fed. 298, hold- 
ing surety company calling on indenmitors to defend actioD oo 
bond, then agreeing that latter should hire counsel, estoi^ed Iqr 
paying Judgment without indemnitors' consent: Conley t. Johnaon, 
69 Ark. 516, 64 S. W. 278. holding lessor of land for twenty-flT» 
years, lease to be Toid if lessee did not mine within fire years* ca> 
topped by rerbal wairer of such condition; Marsh ▼. Bridgepovt, 
75 Conn. 500. 53 AtL 965, holding where lease contained dam^ 
confining city's liability to specific appn^riation therefor, prior 
representations of city officer that foregoing merely formal baaed 
no estoppel; Cornelius t. Farmers' Ins. Co., 113 Iowa, 1S6» 84 N. W. 
1088. holding insurance company not estopped to forfeit policy fbr 
changing use of property by insured In relying upon unauthorised 
representation of agent; Elliot y. Whitmore. 23 Utah, 354. 90 Am. 
St. Rep. 705, 65 Pac. 74, holding represoitations that defaidant 
would not extend area of cultirated lands requiring irrigation do not 
raise estoppel against use of all water for land not materiaUy c»» 
larged. 

96 U. & 540^66a Not dted. 



2^ Notes on U. S. Reports. 96 U. S. 657-680 

% U. S. XI-ee^T, 24 L. 821, GARFIELD t. PARIS. 
^-1. 2 (IX^ 487). Accepting part takes sale from statute. 
Sc« 96 Am. St Bep, 220, 226, note. 

^yl. 3 (IX, 487). Acceptance waiTing statute, question for Jmy. 
A.s»proTed in Coifin t. Bradbury. 3 Idaho, 779, 95 Am. St. Rep. 41, 

35 X*^ac. 717, holding where eTidence as to sale and delirery of 
ditcb^rs is conflicting Terdict of Jury will not he distnrt>ed. 

36 CT- S. 567-<l72, 24 I*. 792, UNITED STATES y. KAUFMAN. 
1 IX, 487). Goort claims adjudicates excess revonne tax. 

^prored in Dooley t. United States. 182 U. S. 228, 45 L. 1060, 21 
Cl 765, upholding Circuit Court's Jurisdiction of action to 
'^B^o^v^er duties iUegallj exacted under protest upon imports Into 
IVM-<3ciBico. 

^ tT- S. 572-^580, 24 L. 841, INSURANCE CO. t. EGGLESTON. 

^3r^l 1 (IX, 48^. Insurer estopped to enforce forfeiture. 

-^^K^prored in Hust y. Employers' Liability Assur. Corp., 122 Fed. 
^^^ bidding failure to gire notice of loss within thirty days created 
°^ ^'^^rfeiture where not expressly made so. and where proofs were 
■^f'^^ted by company thereafter; Prorident etc., Soc. y. Duncan* 
^^ Ved. 2S2, holding insurance company estopped to forfeit policy 
^KMipayment of premiums where it withdrew receipts from 



t and refused payment except accompanied by health cer- 

^^^■^te; Modem Woodmen y. Teris, 111 Fed. 117, holding Modem 

|^^^>dmen lodge estopped to set up suspension of member for 

^^^^oency benefit assessments where local clerk habitually re- 

^«d assessments after due; United States Life Ins. Co. T. 

~^^^^^*r. 126 Ala. 587, 28 So. 652, holding insurance company retain- 

'^ until after insured's death policy handed in to be rewritten 

JIT^ ^ed nonpayment of premium; Alabama State, etc., Co. t. Long 

^'^'^hlng, etc., Co., 123 Ala. 675, 26 So. 658, holding insurance com- 

"^^^^^ waiTes forfeiture for obtaining additiooal insurance by failure 

^ ^^ ^ cl are forfeiture within reasonable time after knowledge; Union, 

^^'^-^ Ins. Co. y. Whitxel, 29 Ind. App. 665, 65 N. E. 17, holding In- 

^^*^^ entitled to recorer on life policy where agent accepted pre- 

ms oyerdue at time life policy issued, insurer being estopped to 

extepsion; Bingler t. Insurance Co., 10 Kan. App. 8. 61 Pac 

iKMing oyerdue premiums accepted by agent after request for 

^-^^^DBent showed wairer of forfeiture, though agent subsequently re- 

^)^-^-^ed insured to send health certificate as condition; Supreme 

;5^Xancil Cath. Knights of Am. y. Geo. Winters, Admr., 108 Ky. 148, 

"^ 5. W. 910. holding customary receipt of overdue premiums by 

^^^i^hts of America, evidence of waiver to prevent forfeiture of 

^^**^^cy on ground of delinquency; Rogers v. Farmers* Mut Aid 

^^5sn.. 106 Ky. 375, 50 S. W. 544. holding Mutual Aid Society aUow- 

'^-^ additional Insurance aggregating two-tliirds property yalue 




96 U. 8. 580-S95 Notes on U. 8. Reports. 150 

estopped to forfeit policy for overlnsurance, it haying assessed In- 
sured for losses; Elgntter v. Mutual Reserye, etc., Assn., 52 La. Ann. 
1739, 28 So. 291, holding assignee of policy entitled to reinstatement 
after forfeiture for nonpayment of premiums where failure due to 
lack of notice by company; Toplitz y. Bauer, 161 N. T. 333, 55 N. B. 
1061, holding surrender of policy pledged to assignee conyersion, 
though assignee so agreed, where note was unpaid at maturity, and 
assignee represented he would not surrender; HoUowell y. Life Ins. 
Go. of Virginia, 126 N. G. 400, 35 N. E. 616, holding where course 
of dealing had been to use malls, delay of twelye hours due to delay 
of mails did not warrant refusal of premium; Frasler y. New 
Zealand Ins. Ga, 39 Or. 347, 64 Pac. 815, holding forfeiture of policy 
under yacancy clause walyed where agent included yacancy permit 
in policy issued to himself and insurer with knowledge canceled 
other proyisions; €rerman-Am. Ins. Go. y. Byans, 25 Tex. Giy. 303. 
61 8. W. 538, holding adjuster inyestigating loss with knowledge that 
policy was forfeited for delinquency, and after insured refused to 
free company from responsibility for adjustment waiyes forfeiture; 
Farmers*, etc., Assn. y. Kinsey, 101 Ya. 241, 43 S. E. 340, holding 
company estopped to forfeit policy for nonpayment of premium 
when due by receiying assessments made after such default; Whit- 
ing y. Doughton, 31 Wash. 332, 71 Pac 1028, holding forfeiture 
clause in contract for sale of land waiyed by acceptance of oyerdne 
instalments and future adyance instalments; Reisz, etc y. Supreme 
Gouncil, etc., 103 Wis. 432, 433, 79 N. W. 432, holding Legion of 
Honor benefit certificate not forfeited for nonpayment where oyer- 
due assessments receiyed, and where last assessments were re- 
quested though preceding one unpaid. 

96 U. a 580-587, 24 L. 678, BISSELL y. HEYWARD. 

SyL 3 (IX, 490). Gonfederate Judgments payable in contem- 
poraneous legal tender. 

Distinguished in Gommissioners of Bartow Go. y. Gonyers, 106 
6a. 561, 34 8. E. 352, holding erroneous confining of eyidence by 
Georgia court in action on Gonfederate contract to eyidence of yalue 
in Gonfederate money. 

96 U. 8. 588-593, 24 L. 737, INSURANGE GO. y. BRUNB. 

SyL 1 (IX, 490). Action pending pleadable in abatement 

Approyed in United States y. Norfolk, etc., Ry., 114 Fed. 684, up- 
holding plea of action i)ending where plaintiff sought second man- 
damus against railroad under act March, 1889, prohibiting rate dis- 
crimination. 

96 U. & 604-595. Not cited* 



151 Notes on U. S. Reports. 96 U. S. 585-611 

96 U. a 505-611, 24 L. 703, EDWARDS v. KEARZBY. 

Syl 2 (IX, 402). Law impairing remedy on contract onconstltu- 
tioDiL 

■ 

Approved in Oshkosh Water-Works v. Oshkoph, 187 U. S. 430, 23 
Snp. Ct. 234, 47 L. 250, upholding charter amendment prohibiting 
Knits against city until presentment and disallowance, or ignoring of 
claims by council, and confining suit to twenty days thereafter; 
Padgett ▼. Post, 106 Fed. 002, holding unconstitutional 8. G. 
Acts, 22 and 23 Stat, at Large, attempting repeal acts authoris- 
ing municipalities to issue tax to pay railway bonds; Wilder v. 
Campbell, 4 Idaho, 700, 43 Pac. 678, holding amendment to Idaho 
Sess. Laws 1805, | 4402, extending time for redemption from six 
months to one year, did not apply to mortgage executed prior 
thereto; Richardson t. United States Mortg., etc., Co., 104 IlL 266, 
^ N. E. 608, holding IlL Laws 1807, p. 175, requiring foreign 
(^rporatlons to maintain office and Ale charter conditions precedent 
to suit in State does not apply to mortgage previously executed; 
^wlby ▼. Kline, 28 Ind. App. 662, 63 N. E. 724, upholding as valid 
PoUce regulation. Bums' Rev. Stat Ind. 1001, i 4463c, providing 
Qotes and mortgages of building associations negotiable only on 
oi^er of Chrcult Court; Blouin v. Ledet, 100 La. 710, 33 So. 741, 
'folding La. Const 1808 cannot be invoked by mortgagee 
^ uphold claim of homestead to shut off second mortgage given 
prior thereto; Gladney v. Sydnor, 172 Mo. 332, 72 S. W. 558, 05 Am. 
^^ Hep. 527, holding Mo. act 1805, preventing husband from 
alienating homestead without wife*8 consent could not apply to 
^*^i sting homesteads; Craig v. Herzman, N. Dak. 143, 81 N. W. 
^^^» holding Rev. Codes N. Dak., f 4705, authorizing sale of 
l^xid and buildings incumbered by mortgage and mechanic's lien, 
^^ ioapairment of mortgagee's rights; Jones v. National Cotton Oil 
^-^-» 31 Tex. Civ. 423, 72 S. W. 240, holding contract for sale of cotton- 
*^^d meal, made and performable in Arkansas, unenforceable there 
'■^^der Statute of Frauds, not ground of action in Texas: Folsom v. 
^^Der, etc., 25 Utah, 300, 71 Pac. 318, upholding Utah Sess. Laws 
^^^, p. 215, increasing exemption allowed Judgment debtor from 
♦^-OOO to $1,500; Ireland v. Mackintosh, 22 Utah, 306, 61 Pac. 003, 
^^MiDg Utah Sess. Laws 1807, p. 261, changing Statute of Limitations 
^otx^ four to six years cannot revive action on note barred by the 
^^Ur.year period; Kirkman v. Bird. 22 Utah, 112, 61 Pac. 340, up- 
*^<>Iaing Utah Sess. Laws 1800, p. 00, i 7, exempting from attach- 
^^<^t earnings of husbands or heads of families, derived from per- 
^^'^^l service sixty days before execution; Merchants' Bank v. 
^llon, 08 Va. 110, 32 S. B. 483, holding unconstitutional Acts Va. 
^^^—04, p. 580, taking away lien of Judgment; Hale v. Stenger, 
-j^ VVash. 510, 61 Pac. 156, holding Balilnger's Anno. Codes & Stat 
^^^lin SS 440O-44O2, requiring building associations operating i^ithin 



96 U. S. 611-626 Notes od U. S. Reports. 152 

State to deposit all mortgages with auditor, applies only to fntore 
mortgages; Oshkosh Water- Works Co. v. City of Oshkosb, 100 Wis. 
218, 85 N. W. 380, upholding city charter amendment, making 
presentment and disallowance by council necessary before suit on 
claims against city, and requiring serrlce on clerk instead of mayor. 
See d5 Am. St Rep. 887, note. 

Distinguished in Bradley v. Lightcap. 201 lU. 523. 66 N. E. 560, 
upholding 111. Rer. Stat, chap. 77, f 30, providing where mort- 
gaged premises mentioned in certificate of sale not redeemed witliin 
five years from end of redemption period; Geiger v. Geiger, 57 S. C 
526, 35 S. E. 1034, holding children of deceased debtor cannot ques- 
tion constitutionality of Rev. Stat So. C. i 2129, holding homestead 
an exemption from debts and not an estate. 

96 U. 8. 611-619, 24 L. 855, HAYWARD v. NATIONAL BANK. 

SyL 1 (IX, 496). Laches barring action before statute run. 

Approved in Kessler v. Eosley Co., 123 Fed. 563, refusing to set 
aside conveyance of stock where suit delayed four years, and at 
time of suit majority directors opposed action; Calivada Coloniza- 
tion Co. V. Hays, 119 Fed. 208, holding suit against corporation for 
concellation barred by six years* delay where full opportunity 
given to find facts from books; Joseph v. Davenport 116 Iowa, 274, 
89 N. W. 1083, holding plaintiff former shareholder of mine barred 
from recovering share sold for delinquency, and from questioning 
regularity of sale where right not waived until mine became 
profitable; Lockhart v. Leeds. 10 N. Mex. 599, 63 Pac. 53. denying 
bill to vacate mining location where bill prayed general relief based 
only on allegations of legal conclusions; State v. Pierre, 15 S. Dak. 
570, 90 N. W. 1050, denying petition of landowner to vacate pro- 
ceedings extending corporate limits where petitioner petitioned 
therefor and delayed three years before suit; dissenting opinion In 
London, ete.. Bank v. Horton. 126 Fed. 609, majority holding mort- 
gagee's purchaser entitled to decree of general foreclosure and re- 
sale under prayer for general relief to cut off nonjoined defendant's 
equity. See 86 Am. St. Rep. 61, note. 

96 U. S. 619-626, 24 L. 740, GREGORY v. MORRIS. 

SyL 1 (IX, 497). Lien requires possession except by contract. 

Approved in In re Olzendam Co., 117 Fed. 182. upholding lien of 
commission merchants on goods not shipped, but invoices sent, 
where contract provided such lien for advances made, manufacturer 
having become insolvent See 83 Am. St. Rep. 455. 457, note. 

SyL 2 (IX, 498). Contract for gold payable in currency. 

Approved in Dorr v. Hunter, 183 111. 435, 56 N. E. 160, upholdlns 
mortgage contract payable in gold coin of United States and af- 
firming decree providing payment in dollars and cents. 



1 U. S. Reports. 



eii U. S. 627-IH5 



ffi D. S. ea7-««. 24 L. 858. BRINE v. HARTFORD FIRE INS. Ctt 
Sfl. 2 IIX, 4981. Laod transfers governed by State law. 
Approred In Clarke t. Clarke, 17S U. S. 181. 44 L. 1031, 20 Sup. 
Ct S75. holding doctrine of equitable conversion not applied In 
probate of will in South Carolina wbere laud Bkuated In Connectl- 
oor, doctrine not prevailiog ttaerc; King v. Tliompson. 110 Fed. 324, 
uppij'iQg to foreign rEllroad owning line In Obio. Rev. Stat Ohio 
IG30, }{ 3393, 3400, postponing mortgage Hen on railroad property to 
lien or Judgment for personal Injuries; Williams t. Gaylord, 108 
Fed. 3T4, applying In foreclosure against West Virginia corpora- 
lloa, Cal. Stat. ISSO. p. 131, reqnlring holders of two-thirds capital 
Btodi to ratify even disposition of mining Ipnd. 

Distlnguisbed in Interstate B. & L, Assn. v. Edgefield Hotel Co., 
im Fed. 428. applying Georgia law In bill to foreclose mortgage of 
Soutij Carolina corporation by Georgia corporation, where property 
'limited in South Carolina, bond paj'nble In Georgia; Mcllwaine 
^ Ellington. lU Fed, 583. holding amount due on contract of bulld- 
tut BssocJatlon solvable In place different from land governed by 
fonner, though State where land lies prescribe different rule; Norton 
"■■ Boose of Mercy, 101 Fed. 389, upholding as between parties, 
''^Ulon of Kentucky court refusing New York corporatlou, having 
'^ched Its land-holding limit. Interest under will or Kentucky 
iMtator. 

SyL 5 tlX, 501). Substantial protection of statutory rights 
SQough. 

-Approved In Land Title, etc.. Co. v. Asphalt Co., 127 Fed. 20, 
holding under N. J. Laws 1806, p. 2!)S. trustee for benefit of 
'^irtiQcate-holderB of Insolvent corporation may foreclose lo Federal 
court under Federal procedure; Jones v. Mutual Fidelity Co.. 123 
'^e<I. 523. upholding Federal Jurisdiction of action by nonjudgment 
i^i-edltor, to enlorcc equitable rights given by 19 Del. Laws 1891, 
'^^ap. 181, against insolvent corporations. 

*« U. S. 640-645, 24 L. 848, GOLD MINING CO. v. NATIONAL 
BANK. 



Syl. 1 (IX. GOl). Bank i 



repay money borrowed beyond 



Approved In Blodgett v. Lanyon Zinc Co,, 120 Fed. 896, dismiss- 
**»g bill to set aside lease executed to 7.lne company of New Jersey 
'^ft ground of latter's failure to comply with Kan. Laws 1898; 
"t^anover Nat. Bank v. First Nat. Bank, 109 Fed. 426, bolilliig 
defendant liable on note signed only by Its cashier to avoid atate- 
*Jient of liability thereon, defendant having received anioutt of 
t»ote by discount; .Murry-Nelson. etc., Co. v. Leiter, 10t> III. 4:;4, 80 
^, E, 854. holding debt owed bank not uucollectable under Starr 




i 



06 U. S. 645-088 Notes on U. S. Reports. IM 

& C Anno. Stat. IlL 189G, chap. 100. though amounting to more 
thnn one-tenth of bank's paid-up capital; Battey y. EnrekA Bank, 
02 Kan. 3U2, 03 Pac. 439, upholding lien of bank on stock of stock- 
holder for debt preTlously contracted in good faith. 

Syl. 3 (IX, 503). Principal failing to disaffirm presumed assenting. 

Approved in Alaska, etc., Chicago Commercial Co. v. Solner, 123 
Fed. 860, holding Illinois corporations receiving benefits of on- 
authorised sale of realty by secretary in Alaska deemed to have 
ratified, so vice-president's suit to set aside dismissed; Peoples' 
Bank v. Exchange Bank, 110 Ga. 825, 94 Am. St Rep. 144, 43 8. E. 
271, upholding bank's lien on stock for indebtedness to extent of 
one-tenth of capital stock paid in, although indebtedness exceed 
tlmt proportion. 

00 U. S. 045-058. Not cited. 

DO U. S. 059-^75. 24 L. 808, KETCHUM v. DUNCAN. 

Syl. 2 (IX, 505). Both parties must consent to sale. 

Approved in Bennett v. Chandler, 199 111. 108, 64 N. E. 1056, hold- 
ing agents of mortgagee unauthorizedly paying interest coupons to 
keep mortgagee's business not purchasers entitled to lien on prop- 
erty; Baker v. Meloy, 95 Md. 8, 9, 51 Atl. 894. holding where in- 
terest coupons detached and delivered to property-owner for pay- 
ment and not sale, they cannot participate in proceeds of fore- 
closure sale; Capwell v. Machon, 21 R. I. 522, holding question 
whether transfer of negotiable instrument is payment or sale is 
one of fact, unless payment intended negotiability continuing after 
maturity. 

Syl. 5 (IX, 606). Paying interest coupons not necessarily extlxi- 
guishment 

Approved in M*TIghe v. Keystone Coal Co.. 99 Fed. 138, holding 
unpaid interest coupons take no priority over bonds, though Interest 
coupons have l>een paid as to latter. 

Syl. 6 (IX. 507). Interest coupons purchased* protected by 
mortgage. 

Approved In Contracting, etc., Co. v. Continental, etc., Co.« 108 
Fed. 4. holding claim for money borrowed to pay interest on ma- 
tur«Hl railroad mortgage coupons not superior to mortgagees^ dalm; 
lUiuois Trust, etc.. Bank v. Doud. 105 Feil. 133. holding claim of 
oreilitor for money lanned to pay Interest, inferior to the mortgage 
debt on railway property. 

96 r. S. «75-4»S. 24 L. SOO. COUNTY OF RAY v. TANSTCLB. 

SyL 1 iIK. 50(^\ Constitutional railroad aid limitation. 

Appn^vetl In Board of Comrs. v. Travelers" Ins. Co.. 128 Fed. 822, 
holding article 2, section 14, Const. N. C 1868^ requiring 



IS Notes on U. S. Reports. 06 U. S. G8S^7(H 

finiallties for crestiDs Indebtedness, did not Invalidate connty 
bonds issued nnder prior law, not requiring sndi formalitlesL 
Qrl- 4 (IX, 509). Connty recelring benefits cannot repudiate 



Apimnred In WetaeO t. Padncah. 117 Fed. 65B, holding city Issn- 
Dranldpal bonds, reciting compliance with statute, and paying 
Interest th^eon nine years, estopped to allege prior Irregularities 
to defeat tmir holders; dissenting opinion In Bond, etc. Go. t. Mitch- 
ell, 21 Tez. Chr. 610, 54 S. W. 280, msjority holding county bonds 
issued for building Jail yoid under Tex. Act February 11, 1881, 
avtiioriiing eoorthouse bonds only, and not ralidated by interest 



IHstingulshed In Clarke r. Xcrthampton, 105 Fed. 31-f, holding 
where bonds Issued were Toid for failure to properly word petition, 
city not estopped by payment of interest for twenty years to allege 
Illegality. 

96 U. & 680-606, 24 L. 607, HAWKINS T. UNITED STATES. 
SyL 1 (IX, 510). Written Instrument merges prior oral agree- 

Approred In Walt« t. Bloede Co., 04 Md. 87, 50 AtL 434, holding 
inadmissible to rary written contract to purchase fifty tons tapioca 
flonr, within Statute of Frauds, subsequent oral extension of time 



SlyL 5 (IX, 510). Goyemment not bound unless agent authorised. 

Apfvored In Tenable Const Co. ▼. United States, 114 Fed. 770, 
allowing rccoyery by contractor against United States, where en- 
gineer in charge ordered extra work done and required it as per- 
fonnanee of written contract. 

9yL 7 (IX, 51()). Promise not implied where subject expressed. 

Approred in Green t. American Cotton Co., 112 Fed. 744, 745, 
holding condition of submission to arbitration before suit brought 
lot implied from contract proriding for arbitration or exchange 
sihttntion committee in case of disagreement. 

Distinguished In Hoses t. United States, 116 Fed. 52a allowiog 
wc o f w y by government carpenter in Alaska for overtime, beyond 
ci^ liours a day, put in undo: orders of quartermaster. 

«• U. S. 60^7(M, 24 I*. 875, FELTOX v. UNITED STATES. 
^ 2 (IX, 511). ** Willfully " implies knowledge and bad 

'Approved in Roberts t. United States, 126 Fed. 005, upholding 

T^iUction that killing under circumstances showing reckless dis- 

^^*^ for life satisfied Rev. Stat, U. S., i 5341. where " willful 

^'^t'K ** used; Kletzing y. Armstrong, 119 Iowa, 508, 93 N. W. 501, 



96 U. S. 701-723 Notes on U. Sw Reporu. ISC 



holding onder Iowa Code. I 4S52. making willfnllT selling 
gaged property witbont written consent larceny, absence of 
where defendant orally agreed to sale not probable cause; 
T. Ferguson. 82 Mo. App. 58a holding word -willfuUy- 
statute making removal of comer stones misdemeanor means with 
wrongful intent. 

Distinguished in Bridgewater t. State. 153 Ind. 564, 55 N. E. 738L 
upholding Instmction that if defendant willfully kiUed deceased, 
hut without malice or premeditation, he was guilty of manslaui^ter. 

96 U. S. 704-712. Not cited. 

96 U. S. 712-716 24 L. 611, SAGE T. CENTRAL R. R. CO. 

SyL 3 (IX, 512k Accepting security sufficient allowance 9t 
appeaL 

Approred in Chamberlain Transp. Co. t. South Pier COal Col, ISS 
Fed. 166 holding appeal properly allowed where leare granted ts 
file petition therefor, and bond subsequently approved. 

Distinguished in Loveless v. Ransom. 100 Fed. 391. holding ap- 
proval by judge of writ of error Iwnd not writ of error since trial 
court cannot issue such writ. 

SyL 4 <IX. 513). Acceptance in tem renders citation nnneccnuy. 

Approved in In re Fiechtl. 107 Fed. 619. holding approval of ap- 
peal bond by judge sufficient compliance with rules for takins 
appeals. 

SyL 5 (IX. 513). Citation necessary where security given beyond 
term. 

Approved in Berliner, etc.. Co. v. Seaman. 106 Fed. 710, refosing 
motion to dismiss appeal on ground that ronissuance of citatfon 
within the thirty days allowed to appeal deprived court of pBtm- 
diction. 

SyL 7 4 IX. 51 3 1. Court's power to accept bond rejected. 

Distinguished in New England R. R. v. Hyde. 101 Fed. 390. liold- 
ing Circuit Coort cannot, under Rev. Stat., | 716 allow 
where plaintiff failed to file writ of error and Iwnd within 
tlays. 

96 U. S. 716-723, 24 L. 743. MORGAN v. RAILROAD Ca 

SyL 1 (IX. 514). Estoppel against one Inducing reliance. 

Approved in Roach v. Arkansas. 28 Ind. App. 255. G2 N. E. 638L 
holding husband joining with wife in her mortgage and asserting 
no claim at sale, estopped to claim statutory one- third on her denfh. 

SyL 2 (IX. 514 1. Estoppel presupposing fraud or unfaimesa. 

Approved In McDonald v. Beatty. 10 N. Dak. 520. SS N. W. 281. 
holding plaintiff ledeeming land sold at foreclosure sale, under sec- 
tion 5510, Rev. Code N. Dak., acquired lien not defeated I9 



157 Notes on U. 8. Reports. 96 U. S. 724-73S 

Ikn giTen by oral contract purchasers; Atkinson t. Plum, 50 W. 
Va. Ill, 40 8. E. 500, holding estoppel not raised where representa- 
tion Dot meant to be relied on and maker not careless in making iL 

3jL 5 (IX, 515). Intent to dedicate shown by acts. 

Apprared in Kent ▼. Pratt 73 Conn. 579, 4S AtL 420, holding stipn- 
latkn in deed tbat grantee should not build on new road and that 
srutor should not build beyond fence showed dedication to public 

3jL 6 (IX, 515). Owner^s assent and public use, dedication. 

Approred in Tonacomlng Ry. Ca ▼. Consol. Coal Co., 95 Md. 0S4, 
53 AtL 422, holding use by public, with owner's knowledge, of cut- 
off on land leased to driying association, constitutes dedication; 
Sdiettler t. Lynch, 23 Utah, 315, 64 Pac 957, holding land set apart 
grutor should not build beyond fence showed dedication to public 

^ 7 (IX, 515). Owner's acts considered as estoppeL 

ApproTed in Pittsburg, etc, Ry. Cc ▼. Noftsker, 26 Ind. App. 
61£. 60 N. B. 874, upholding instruction that landowner may by 
his OHiduct estop himself from denying dedication of land. 

96 U. a 724-727, 24 L. 659, O'REILLY t. EDRINGTON. 
9yL 2 (IX, 516). Clerk's approying appeal bond not prejudiciaL 

• 

Approred in Brown y. Northwestern Mut. Life Ins. Co., 119 
F«d. 150, holding any judge or justice authorized to allow writ may 
appiOTe appeal bond taken under Key. Stat, H 1000, 1012; Swift 
▼. Kortrecht, 110 Fed. 328, disallowing motion to dismiss appeal 
for faflare of bond to name all obligees. 

96 D. a 727-737, 24 L. 877, EX PARTE JACKSON. 

SjL 1 (IX, 516). Congress* power to regulate post-office system. 

AH>royed In American School y. McAnnulty, 102 Fed. 566, up- 
holding under 26 Stat 466, order of postmaster-general directing 
Ictten addressed to complainants returned to senders; dissenting 
opinkm in Lottery Case, 188 U. S. 365, 23 Sup. Ct 330, 47 L. 505, 
ouUority upholding congressional power to regulate or prohibit car- 
riage of lotteiy tickets between States by express companies. 

96 U. S. 737. 738. Not cited. 



XCVn UNITED STATES. 



97 U. & 1-a. 24 L. Ml, TROT t. 

ByL 1 (IX, 519). Ifcflisare of JnriadicdoiL 

Approred In Battle t. Atkinson. 115 Fed. 387. taoUiiis 
of AffcinMB limiti reeorerr for nnUwfii] detainer to Taine of 
patkn dnnn^ detention and damases. Federal coon has no J«ri»- 
dictlon wlioe romplaint alleges nine nxmths' rent due at SSS per 
month, and $2,500 damages, without showing plaintiff is entittod 
to more than actual damages, 

Sij-L 1 <IX, 519^ Patent — Dlriskm of flake g^ue into paxtkles. 

Approred in Rumfoid Chemical Works t. New Toik Baktng 
Powder Co., 125 Fed. 233. 235. holding Toid Catlin patent No. 474.SI1. 
for baking po7der, in which phosphoric ac3d element is in granular 
form Instead of in pnlTerized coz^tion as in prior oompouada. 

97 U. & 3-7, 24 L. 9S5. GLUK CO. t. UPTON. 
QjL 2 (IX, 520). Patents — What is new article. 

Approred in Farmers* Itf g. Co. t. Spnmks Mfg. Cou 119 Fed. saSu 

holding patent No. 420,021, for Tennlaring t&ireL. roid as inrolring 
no more than oxdinazj mechanical skill l>ecanse of extensire prkv 
knowledge of the an: Kzajewsk! t. Phair. 105 Fed. SIS. boUiic 
patent Na 349.503. for machine for hreaking and cutting sugar 
by which product is nearly doubled, shows patentable aoT^ty- 

97 U. & 7-12. Not cted. 

97 U. & 13-24. 24 L. 917, HOTEL CO. t. WADK. 

SiyL 2 (IX, 520t. Cixxruit Court's JurisdictJon on mortgace 

doEure. 

Approved in CarroQ t. Chesapeake Jt O. Coal Agencj Oou« 124 
Fed. 310. holding where plaintiff ma<3e contract with certain com- 
panies to rappl.r coaL there are roScIe::! rirbts arising out of sscli 
contracts to enaMe plainilff to sec ■ere equ:iaMe relieL 

SyL 3 <TX, 520 L C^-nrts — Refusal of party to join. 

Apprc»Ted in Sterens t. SEQiib. 120 Fed. 712. holding legatees and 
distributees are inflispensable parties to sn:i by beir-at-law to obtain 
construction of will and lo Lave residuary clause set assde so as 
to leave dec^ent intestate as to larire portion of estate; Einc^e^ 
▼• Georgia Southern Jc F. By. Co.. lirO Fed. 1009, holding io 

115SJ 



in 



Notea on D. 3. Reports. 97 D. S. 25^4 



hr two traste^s agaliiGt a corporation realdlDg Id aDotber State, tact 
Ibat trustee recusing to Join In the suit ivbo was made a party 
dcrcndaot resid(>d in the same State aa the corporation did not 
deprlye the Federal court of Jurisdiction. 

ByH (IS, 521). Validity of mortgages to corporate directors. 

Approved in Wjraan v. Bowman. 127 Fed. 273, 274. 276, holding 
CMiract between corporation and majority ot Its directors whereby 
latter advances or loans money to former to pay its debts, some of 
wliicL are owing to latter, whereby former gives latter preference 
ma other creditors, is voidable at option of creditors or stock- 
bolflew of corporation; Curtin t, Salmon River, etc., Co., 141 Cal. 
ilZ Tl Pac. 852, holding action may he maintained againsi cor- 
poMHon on note given by It, orlginnlly Invalid but subsequently 
TdMaled by conduct of corporation. 

67 r. B. 25-34. 24 L, 989, BEER CO. v. MASSACHDSETTa 
SjL 3 ax. 522). State's right to regulate liquor sales. 
Approved in Freeport Water Co. v. Freeport, 180 V. 8. 597, 45 
LOSS. 21 Sup. CI. 497, upholding ordinance of 1896, of the city of 
Preemont, lowering water rates of the Freemont Water Company, 
Uiough rates were Qsed previously when ordinance was passed 
erantlag privilege to supply the water; Boise City Artesian Hot, 
etc. Cold Water Co. v. Uoise City, 123 Fed. 237, holding corpora- 
Han designated " private corporation " in statutes ot a Slate, formed 
(or the purpose ot furnishing water to cILles and towns, is not 
ewmpi from legi-'ilatlve or municipal control; Fisher v. Cushman. 
103 Fed. U65, holding liquor license issued by city authorities and 
«liicij is transferable, subject to approval of such authorities, which 
1) urdlaarily granted. Is assets of estate under bankruptcy act; 
Suie T. Blxuian. 162 Mo. 22. 27, 62 8. W. 832, 833. upholding act 
at May 4, 1S99, providing for Inspection ot malt liquors sold in 
Bute, and Imposing Inspection fee; HIgglns v. Talty, 15T Uo, 2S9. 
i'i S. W. 725. holding license to dramshop a mere permit, not a 
CDUtriLct with the State, having no vested rights but subject at all 
I'nies to the police powers of tlie State, and revocable for violation 
"t dramshop laws whetber license so provides or not; Danville v. 
Hfllelier, 101 Va. 527. 44 S. E. 725. holding under legislative grant 
MmdecII of Danville, of tight to grant or refuse licenses to liquor 
dealerg under such regulations as It may prescribe, council could 
PMs grdlnance providing that saloons be closed between certain 
lioars and to remove all obstructions from windows. 

Distingulslied in State T. Hanophy. 117 Iowa, 119. 00 N. W. 602. 
luilding where salesman whose principal is engaged In sale of 
"tnors in lUinols accepted order tor liquor in Iowa, which order 
WM gent to principal In Illinois subject to latter's acceptance or 
^ecUon, and liquor shipped C. O. D., to buyer from principal. 




i 



97 U. 8. 34-39 Notes oo U. 8. Reports. 169 

transaction const! tnted Interstate commerce, and salesman not rab- 
ject to prosecarion under liquor law. 

SyL 5 (IX« a21). State's power to protect liTes and health. 

Approved in L*Uote v. New Orleans, 177 U. S. 596, 44 L. 908, 20 
Sup. Ct. 791, upholding New Orleans ordinance prescribing llmltB 
outside which no woman of lewd character shall dwell; Snooffcr 
T. C. R. & M. City Rj. Co.. 118 Iowa. 301, 92 N. W. Sft, holding 
reasonable exercise of municipal power to control and improTe 
streets is a legislative power vested in the city, and cannot be 
abrogated by ordinance or contract where the public safety and 
convenience forbid, and the presumption ia in favor of the leaaon- 
able exercise of such power; Hengehold v. City of Covington, 108 
Ky. 756, 57 S. W. 496, holding legislatore may create boards of 
health and invest them witii powers necessary and proper to 
vent spread of disease, and may confer upon cities power to 
regulations for the health of their communities; Commonwesltb T. 
Pear. 1S3 Mass. 245, 66 N. E. 721. upholding authority of bosid mt 
health to require vaccination. 

SyL 6 ilX, 526». States may prohibit liquor traffic 

Approved in Austin v. Tennessee, 179 U. S. 346, 45 L. 227» 21 
Sup. Ct 133, upholding Tennessee act of 1S97, regulating sale mt 
cigarettes; City of Westport v. Mulholland. 159 Mo. 95, 69 8. W. 
78, holding city ordinance requiring permission of board of alder- 
men to dig or tear up streets not an impainnent of contract, where 
railroad had been granted permission to construct and iwtnt»iw ^ 
road; St. Louis v. McCann. 157 Mo. 309, bli S. W. 1017, holding 
requiring payment of license for conducting real estate tyostness 
does not infrin^^^ constitutional rights; HobolLcn t. Goodman. 68 
N. J. L. 221. 51 AtL 1093, holding sale of Uquors at letaa Is not 
one of the privileges or immimities of citixena protected bj Ite 
United States Constitution. 

97 U. S. 34-39, 21 L. 909, NOTES v. HALL. 

SyL 1 (IX, 527). Adverse possession — Constructive notice. 

Approved in Romig v. GiUett 187 U. S. 117, 23 Sup. Ct. 40; 47 
L. 100, hotding one who enters into peaceful possession nnder sn- 
thority of foreclosure proceeding cannot be dispossessed hj 
gagor or one claiming under him so long as the mortgage 
impaid; Kirl^ham v. Moore, 30 Ind. App. 553, 66 N. £. 1044^ lioid- 
ing finding in suit by tenant against cotenant for specific petfi 
ance of a contract to convey real estate in which purdisser 
made party, ihat the plaintiff held open, notorious, and ezdosiYtt 
possession against all world except cotenant, sufficient to suwMi » t 
conclusion of law that purchaser had sufficient notice to put Mm 
on inqnizy. 



Id Notes OD U. S. Reports. 97 U. S. 39-92 

97 U. & 39-68. Not dted. 

97 C. S. 68-79, 24 L. 967, SHILLABER t. ROBINSON. 

SyL 1 (IX, 528|. Oonyeyance to secure payment of money ss 



^proved in Romig t. GUlett, 187 U. S. U7, 23 Sup. Ct. 42. 47 
l^ lOQ, holding a mortgagee in possession under authority of fore- 
dcMore proceedings cannot be dispossessed by the mortgagor or 
osie claiming under liim, so long as the mortgage remains unpaid; 
Rogers t. Shewmaker, 27 Ind. App. 634, SI Am. St Rep. 277, 60 
X. £. 463, holding absolute deed of trust by married woman and 
bnaband, of real estate, held by them as tenants by entireties, to 
be aoHA by trustee and proceeds applied to the debts of husband, 
te not contract of suretyship on part of such wife. 

»7 U. S. 89-^ 24 L. 971, GRANT v. NATIONAL BANK. 
SyL 1 (IX, 529). What constitutes fraudulent preference. 

Approved In Pond t. New York National Exch. Bank, 124 Fed. 
9Q3» holding action by bankrupt's trustee to recover payment by 
b^Akrupt, alleged to constitute prohibited preference, is analogous 
to salt by creditor to set aside fraudulent conveyance and its main- 
tonance in equity is not objectionable on the ground of existence of 
•^teQ uate remedy at law; In re Eggert, 102 Fed. 738, 739, 741, hold- 
under bankruptcy act 1896. f 60b, to determine whether taking 
by creditor is illegal preference, facts must be brou:;bt home 
^^ lilm such as would put ordinary prudent man upon inquiry, a£Qrm- 
^^S In re Eggert, 98 Fed. 844, holding assignment of claim by bank- 
''^X^t to creditor in consideration of 10 per cent, discount without 
^'^O'wledge by creditor of insolvency not illegal preference; Cox v. 
^^^U. 99 Fed. 549. holding bUl in equity, brought by trustee in bank- 
^'^Ptcy to set aside sale of goods by bankrupt in fraud of creditors 
^^<1 bankruptcy act will not be dismissed on the theory that there is 
^ PUUn and adequate remedy at law; Boudinot v. Hamann, 117 Iowa, 
^^ OO N. W. 498, holding whether creditor has cause to believe 
debtor insolvent and that he was being legally preferred according 
^^ Section GOb of bankruptcy act is a question of fact for the trial 
^^'^'^in; Sirrine v. Stover, etc, Co., 64 S. C. 459. 42 S. E. 432, holding 
^ ^^9der to invalidate security taken for debf creditor must have 
^^^^iedge of facts to induce reasonable belief of insolvency. 

^ ^:?. 8. 83-92, 24 L. 933, COUNTY OF BATES v. WINTERS. 
^>^L 1 (IX, 529). MunicipaliUes — Vote to aid particular railroad. 
'^ ^proved in Edwards v. Bates (>>., 117 Fed. 536, holding authority 
^^^^'isated by vote of township to subscribe for stock of certain 
'^^^^^oid company is revoked by operation of law where company 
^^^^~^«8 to exist by leason of its consolidation with another company, 
°^^^:^re subscription has been actually made. 
VoL n — 11 



i 



97 U. 8. 92-120 Noteg on U. 6. Reports. 182 

97 U. S. 92-96. Not cited, 

97 U. S. 96-110, 24 L. 977, COUNTY OP WARRKN ▼. MARCT. 
SyL 1 (IX, 530). Bonds certified by officer presnmptiTely Tslid. 

Approved in Independent School Dist y. Rew, 111 Fed. 8, holding 
certificate on face of municipal bonds that they have been Issned In 
pursuance of legislative authority for the purpose of funding; Indebt- 
edness is declaration that they have been issued for the purpoae 
of funding valid debt in method prescribed by law; Hughes Co. t. 
Livingston, 104 Fed. 313, holding when municipal body has authority 
to issue bonds, upon condition certain facts exist or acts have been 
done and law intrusts power to and duty upon its officers to de- 
termine and certify to same at time of issuance of bonds, such cer- 
tificate estops municipality from proving falsity against bona fide 
purchaser; Wilson v. Board of Eklucation of Huron City, I2 S. Dak. 
557, 81 N. W. 95S, holding that board of education authorized to 
issue bonds is estopped to allege that the money realized from their 
sale was misapplied as defense to an action thereon; dissenting 
opinion in City of Santa Cruz v. Waite, 9S Fed. 397, majority hold- 
ing that under California statute prescribing requirements for Issu- 
ing bonds for refunding indebtedness of cities and towns which 
statutes of the State are required to be of record, the statutes charge 
purchasers of bonds issued thereunder with notice of facts shown by 
such record and officers under implied authority given by favorable 
vote have no power to mat^e recitals therein estopping city from 
proving by sucli records invalidity of bonds. 

Distiniruished in Miller y. Ferris Irr. Dist, 99 Fed. 145, 146, hold- 
ing reiMtnl in irrigation bonds issued under Caliromia statute, of 
compliance with statutory requirements, estops district from deny- 
ing compliance with statute. 

Syl. 2 (IX. 531). Lis pendens — Purchase before maturity. 

Approved in Pickens Tp. v. Post, 99 Fed. 6G3, holdhig that a bona 
fide purchaser of municipal bonds before maturity is not affected 
with constructive notice of a suit respecting the validity of the stat- 
ute under which they were issued. 

97 U. S. 110-120 24 L 973. POWDER CO. T. BURKHARDT. 

Syl. 1 (IX. 532). What is bailment 

See 94 Am. St. Rep. 219, note. 

Syl. 2 (IX. 533). To "advance" is to supply beforehand. 

Distinguished in Carpenter v. Plazge, 192 111. 92, 61 N. E. 533, hold- 
ing where defendant advanced money to purchase a master's certl- 
ficnte under foreclosure and held same for his own benefit unless 
plaintiff individually or in connection with other heirs repaid amount 
witiiiu specified time, in which case certificate should De assigned 
to plaintiff for benefit of heirs, and plaintiff made payment; othor 



MS Kotes OD U. & Reports. 9T U. a 120-126 

iute^n eoatribnttag nothing proper to mmke right to redeem condl* 
tf4i>ail on pajment of mdrmncee to pUintifC. 

StL 3 (IX, S32). Sales — Return of something of eqnlrslent rslne. 

^pprored in Potter ▼. Mt Vwnon* etc.. Mill Ca« 201 Mo. App. 5S4. 
T3 ^ W. 1006;» holding where defendant ran floor-mill and elerator 
axB«] receiTed wheat from different owners and wookl retnm from 
£^'rc«ttorg at their option wheat or its marlcet ralne in floor or cash, 
l^ot no retom of identical wheat delirered was expected, transaction 



»r r. S. 120>126w 24 U 985, MACHINE GO. T. MURPHT. 

^jL 1 (IX, 533>. Derices acc^Hnplishing same work eqoiralent. 

J^pprored in Standard, etc. Scale Co. t. Compoting Scale Co., 126 

F'e'cL Oia. constraing patents for compoting scales; Jolios King Op- 

ti^-al Co. T. Bilhoefer. 124 Fed. 530, holding claims foor and flre of 

I^ct at Na 412.442. for eye-glasses, is infringed by patent No. 965,- 

^^". the lasso-nose pieces or goards of which althoogh varying in 

form embody vhcr same prindple and accomplish the same resolt 

la the same wsy; Brisbin t. Carnegie Steel Co., US Fed. 598w holding 

a<i«^:ii^ to patented machine a nonfonctlonal part, or a change in the 

P^'B^U^n of parts which does not change its method of operation, in- 

'^"^^Mrement; Dowagiac Mfg. Co. t. Brennan. 118 Fed. 147. holding 

^^■^^ does not escape infrtn^ment by changing the form of the parts 

^^ « patented combination withoot essentially varying the principle 

^^ mode of operation pervading the original invention: Cimiotti Un- 

*^*ring Co. v. American, etc., Mach. Co., 115 Fed. 503. holding patent 

^^^ 3S3258. for machine for removal of water hairs from forskins, 

^^^n^ed by machine embodying the essential festores of patent 

ttu>Q|r|| bmsbes in Iwth machines which poshed down away from 

*^«»*fe were different: Kinloch Tel. Co. v. Western Et Ca, 113 Fed. 

^^^^ t5>T. holding where form is not essence of invention machiov's 

^^ c\-%mbinations constmcted on same principal which have same 

^'^'^^e of operation and which accomplished same revolts by the same 

^^ equivalent mechanical means are mechanical eqoivaleots, 

***iion^h they differ in form and name: Adams Co. v. Schreiber. etc, 

^%- Co., Ill Fed. 1S9, holding mere change in form of an element 

^^o it performs same fonction in sobstantiaily «ame manner in- 

^^g^es: Singer Mfg. Coi v. Cramer. 10& Fed. 655, holding one who 

^ appropriated the essential and important featore of patent eti 

''^^^xitlon cannot avoid charge of infringement on ground that pa ton t 

^^^^^^ combination, some of elements of which he has omitted whore 

^ tkas sobstitoted mechanical equivalents therefor: Brammor v. 

^^^^■X)cder, 106 Fed. 921. holding one who secured potent for maohiuo 

^ ^combination which first performs a useful function is proteoted 

^^icist all machines or combinations which perform the same 

""**^tion by equivalent mechanical devices: National Hollow, etc., 

^ ^- Intendiangeahle, etc., Co., 106 Fed. 711, holding mere change 



97 U. S. 126-144 Notes on U. S. Reports. 161 

of form of a deyice or some of mechanical elements of combination 
secured by patent will not avoid infringement where principle of 
patented invention Is adopted, unless form of machine or of ele- 
ments changed is distinguished characteristic of invention. 

©7 U. 8. 126-144. 24 U 1000. ELIZABETH ▼. PAVEMENT CO. 

Syl. 1 (IX. 534). Foreign patent as defense. 

Approved in Welsbach Light Go. ▼. American, etc. Co., 98 Fed. 
615. holding Rev. Stat, f 4S86. denying patent when thing was 
known and used by others in this country before his Invention 
thereof, applies to domestic and foreign inventors and in eithi^r 
case, such knowledge and use must have been before the date of 
the patentee's actual invention. 

SyL 4 <IX, 535). Patents — Prior use as evidence of abandonment. 

Approved in Thomson-Houston El. Co. v. Lorain, etc, Co., 117 
Fed. 252, holding use by subsequent patentee, with knowledge of 
public more than two years prior to filing application, renders pat- 
ent void for public use, unless it is shown by unequivocal proof 
that such use was experimental for purpose of improving device; 
Covert V. Cov^t, 106 Fed. 187. holding patent No. 463,599, for a 
wagon-jack, void on ground that article was invented and placed on 
sale by inventor more than two years before application. 

SyL 5 (IX, 534). Patents — Exi)erimental use not public use. 

Approved in Huntington, etc, Co. v. Newell, etc., 0>., 109 Fed. 271« 
holding building of machine embodying most important features of 
an inv^ition, for experimental use by purchaser under direction of 
inventor, to be paid for if successful and which was unsnccessfol 
and was abandoned, is not public use sufficient to invalidate patent 
granted on application filed more than two years afterward; Swain 
V. Holyoke Mach. Ck>., 109 Fed. 159, holding a single unrestricted 
sale by patentee of a machine embodying his invention for practical 
use by the purchaser, more than two years before the filing of the 
application, constitutes public use or sale within Rev. Stat., f 4886. 
which will invalidate patent, unless clearly shown that principal 
purpose of sale was experimental with a view of testing and perfect- 
ing machine; Westinghouse Electric & Mfg. Co. v. Saranac Lake 
Electric Light Ck>., 106 Fed. 227, holding temporary establishmoit 
of system of electrical distribution in town at the expense of com- 
pany by which he was employed and supplying limited number of 
lights for three months to customers, some of whom were charged 
for experimental purposes and to enable improvements, portions of 
apparatus involving invention kept locked from public inspecttoo 
did not invalidate patent applied for two years later. 

Distinguished in Swain v. Holyoke Mach. Ck>., 102 Fed. 915, hold- 
ing construction for and absolute sale for actual use of turbine whed 
and installed for driving machinery more than two years prior to 



1^ Notes on U. S. ReporU. 97 U. S. 144-146 

tppXIcatioD for patent constitutes public use and will defeat patent, 
Although one object of Inventor was to have practical test made. 
SyL 8 (IX, 537). Measure of profits recovered by patentee. 
Approved in Kisslnger-Ison Ck>. v. Bradford Belting Co., 123 Fed. 
^ holding that where defendants bought Infringing articles from 
^oanufacturer resiling them, they are chargeable on an accounting 
only with profits made by themselves above price paid and not for 
the profits made by manufacturers. 

I>istinguished in Elgin Wend, etc., Co. t. Nichols. 105 Fed. la'), 
holding burden of proof rests upon complainant to show what por- 
tion of the profits were due to such improvements of defendant in 
suit for infringement of patent to recover profits. 

SyL 11 (IX, 537). Change of form cannot escape infringcm^it 
.Approved in Standard, etc., Scale Co. v. Computing Scale Ck)., 12G 
F*e<l. 649, construing patents for computing scales; Dowagiac Mfir. 
Co. ▼. Minnesota Moline Plow Co., 118 Fed. 141, holding one does 
^€>x escape infringement by changing the form of parts of patented 
combination without essentially varying principle or mode of opera- 
tion i>ervading the original invention, affirming Dowagiac Mfg. Co. 
^- Superior Drill Co., 115 Fed. 904; Adams Co. v. Schreiber Mfg. Co., 
^^^ Fed. 18S, holding that mere strengthening of a part in patented 
<*«^vice to give it longer life, wh«:e it does not improve or change 
<^^'^loe in operation, does not constitute invention but infringes un 
^1^ device; Union, etc., Ck). v. Battle Creek, etc.. Co., 1(M Fed. 342, 
^^^l<llng patent unless restricted in terms or by implication will in- 
*^^^^cle aU changes of form whether of size or shape or changes in 
^^^^^tttion of parts of a combination, if mode of operation is same and 
I^^^rtfi perform same duty. 

X>istingui8hed in George Frost Co. v. Cohn, 112 Fed. 1012, holding 

^^tent No. 552,470, for a hose supporter, the essential feature being 

^^^ substitution of a button, made of rubber or other similar ma- 

^^rtaJ for a metal button of prior art, was not anticipated and dis- 

^^>^e8 invention in view of marked superiority. 

^^1. 12 (IX, 537). Right of patentee to recover profits. 
-Approved in Piaget Novelty Co. v. Headley, 123 Fed. 898, holding 
'^ii-iifacturer of an infringing article is liable for entire net profits 
^^^t^ed from its sale where evidence shows that its salability was 
'^^^JQarily due to patented feature. 
(^ ^, 534). Miscellaneous. 

^^Ited in Hendriz v. Perkins, 114 Fed. 822, to point that decree 
^^^<Jh by inadvertence or mistake has been entered in different form 
^^*=Ki that intended may be amended at any time. 

^ X:^. S. 144-146, 24 L. 1008. ALLIS v. INSURANCE CO. 



i. 1 (IX, 538). Harmless error not ground for reversal. 
Pproved in Oil Well Supply Co. v. HaU, 128 Fed. 879, refusing 
^ *^?erse where issue Joined in petition in involuntary bankruptcy 



97 U. S. 146--163 Notes on U. S. Reports. 166 

against partnership and Jury waived, and district judge refused to 
act on amended answer and certified cause to Circuit Court when 
he permitted withdrawal of amended answer and submitted issue 
joined by original answer to jury and when result reported back 
to District Court judge adopted verdict; United States Trust Co. v. 
Territory, 10 N. Mex. 428, 62 Pac. 991, holding when railroad part 
of which is taxable is assessed at given sum per mile, when the 
number of miles taxable is ascertained it is separable, an'l assess^ 
ment not invalidated because it differs from number of miles 
described in the original assessment 

97 U. S. 146-163, 24 L. 895, WALLACE v. LOOMIS. 
Syl. 1 (IX, 538). Special acts creating corporations. 

Approved in Smith v. Indianapolis St. R. R. Co., 158 Ind. 43cj, 
63 N. B. 853, holding act of March 5, 1899, regulating granting of 
street railroad franchises in cities of 100,000 inhabitants, is not un- 
constitutional as being local and special legislation. 

Distinguished in In re Application of Bank of Commerce, 153 
Ind. 465, 53 N. B. 952, holding act of 1865, providing for perpetual 
succession in incor];>oratlon of Indianapolis Insurance Company was 
violative of the constitutional provision limiting the duration to 
thirty years. 

Syl. 2 (IX, 539). Bstoppel to deny corporate existence. 

Approved in Deitch y. Staub, 115 Fed. 315, holding member of 
building and loan association who obtains loan from it and executes 
his note and mortgage therefor waives right to deny the power of 
association to carry on business and cannot set up irregularity in 
organization as defense to enforcement of contract; Brady ▼. Dela- 
ware Mut Life Ins. Co., 2 Pennew. (Del.) 239, 45 Atl. 346, holding 
that corporation once admitted to have been legal organization can- 
not deny its corporate existence in order to escape liability on a 
contract for insurance entered into when in apparent exercise of 
its corporate franchises and powers. 

Syl. 5 ax, 539). Guaranteed bonds — Liability of debtor by sub- 
sequent indorsement 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 225, holdiu;; 
where receiver of corporation who by order of appointment is re- 
quired to defend suits seeking to establish liens against corporation's 
property intervened in foreclosure against corporation brought in 
same court decree therein bound 'nterveners in suit in which he was 
appointed. 

Syl. 6 (IX, 539). Appointment of railroad receivers — Priority of 
liens. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 220, 225, holding; 
where at time of commencement of foreclosure of corporation's mort- 
gage covering Income and authorizing mortgagee to take possession 



1S7 Notes oo U. 8. Reports. 97 U. S. 164-170 

tn ctae of default, property was in possession of receiTer prerloosly 
ippointed in creator's soit, interTention by mortgage in receiTershIp 
suit gaye it prior right to income earned by receivership thereafter; 
Bil>ber-White Co. v. White BiTer, etc, R, R,, 115 Fed. 790, holding 
tint order of Circuit Court authorizing receiver to issue certificates 
proridlng that they shall be prior in lien to a mortgage indebted- 
ness or to certificates previously issued is final appealable decree; 
Farinas' L. & T. Co. v. Stuttgart, etc, R. R., 106 Fed. 567, holding 
tluit court had power to order receiver to issue certificates for claims 
for supplies and for money to enable him to make repairs on railroad 
so that it could be operated, and to make them superior to the mort- 
Sige; Vsn Frank ▼. Missouri, etc., Ry. Co., 88 Mo. App. 474, holding 
traffic balances at connecting carriers fall within rule of preferences 
o^er mortgages, given by an order of court authorizing receiver for 
a railroad to issue certificates for operating expenses; International, 
^tc^ Ry. ▼. Coolidge, 26 Tex. Civ. 600, 62 S. W. 1100, holding where 
<^n]er of court for issusnce of receiver's certificate providing thAt 
^ej be secured by first lien on property of road was msde before 
'otervention of creditor claiming a traflBc balance lien such order 
^&B not res Judicata as to latter lien; Kampmann v. Sullivan, 26 
^*^:r. Civ. 312. 313, 63 S. W. 175, 176, holding where receiver for 
^^^"^^t railway was authorised to issue certificates to pay certain 
^^^ts and order of court declared certificates first lien on entire 
^'^^Perty, such lien was prior to claims for material and operating 
'X>eiises after incurred. 

^distinguished in International Trust Co. v. United Coal Co., 27 
Lo. 254, 60 Fac 624, holding that in an ordinary private business 
^^*^^I>oration court has not power to authorize a receiver to make 
*^*^tsbtedness, without reference to preserving property, a lien on 
corpus of the property superior to prior llenholders without 
consent. 

0::X, 538). Biiscellaneous. 

^ited in Burt v. Gotzisn & Co., 102 Fed. 945, holding that when 

'^^tinjiite facts which warrant a decree for plaintiff sre clearly alleged 

^^ ^ bill, variance between evidential facts alleged and those proved, 

^blQh ling QQt misled or surprised defendant nor prevented fair trial 

^* Issue, is not fatal to a decree and will not require reversaL 

^ tJ. 8. 164-170, 24 L. 907, UNITED STATES v. NORTON. 

^y^L 1 (IX, 540). Time when proclamation took effect. 

Approved in Howell v. Bidwell, 124 Fed. 689, holding that by 
^*ty with Spain ceding Porto Rico, tariff l)ecame effective day 
^ ^hlch ratifications were exchanged, and merchandise arriving 
*^ I>ort of entry of the United States from Porto Rico at any time 
<iiirijig that day was not subject to duty. 



97 U. S. 171-272 Notes on U. S. ReportB. IflB 

97 U. S. 171-180, 21 L. 944, GODFREY t. TERRY. 

Syl. 1 (IX, Ml). Courts — BiU mnst allege citizenshiii. 

Approred in Peacock, etc., Co. t. Williams, 110 Fed. 916, iMddins 
under role of decision in Sontb Carolina that whole pleading most 
be clearly friTolons to authorize court under statute to render Jnds^- 
ment thereon on motion, answer in Federal court which contaiiw 
positiTc denial under oath of material Jurisdiction allegations can- 
not be adjudged frirolous. 

97 U. S. 181-188, 24 L. 926. LAMBORX t. COUNTY COMMISSION- 
ERS. 

Syl. 1 (IX, 542). Vendee cannot acquire adverse title at tax sale. 

Approved in Oppenheimer t. Levi. 96 Md. 306, 54 AtL 76, hoidiiig 
that where tenant agreed to pay taxes on demised property and 
failed to do so, property being sold for taxes, he could not acquire 
title against his landlord, but holds tax title in trust for landloid. 
See notes, 75 Am. St. Rep. 231, 253. 

SyL 2 (iX, 542 1. Taxes voluntarily paid not recorerabl^. 

Approved in United States v. Edmonston, 181 U. S. 509, 45 L. 976» 
21 Sup. Ct. 722, holding one who pays government officers entitled 
to receive money for public lands more than law required him to pay 
for it cannot recover that excess in an action against gOTemment 
in Court of Claims; Carton v. O>mmissioners, 10 Wyo. 438, 69 Pac 
1018. holding when owner of migratory live stock, before annual 
levy, accepted privilege extended by county authorities of paying 
stipulated amount per head as taxes instead of making deposit or 
giving bond, as he might have done under statute, payment m 
voluntary notwithstanding written protest on ground that stock not 
liable to taxation. See 94 Am. St Rep. 432, note. 

97 U. S. 189-236. Not cited, 

97 U. S. 237-272, 24 L. 901. LILIENTHAL'S TOBACCX) t. UNITED 
STATES. 

SyL 2 ax, 544). Criminal law — Guilt beyond reasonable doubt. 

Approved in The Good Templar. 97 Fed. 652, holding gOTemment 
not required to prove allegations beyond reasonable doubt but hj 
not more than preponderance of evidence in proceeding under Rer. 
Stat. § 4377, for forfeiture of vessel and cargo, for violation of 
license by cairying smuggled goods. 

ax. 544). Miscellaneous. 

Cited in Franks v. Robards, etc., Co., 112 Fed. 786. holding that 
under the war revenue act of 1S98. increasing tax on manufactured 
tobacco, providing what was ** manufactured, imported, and remored 
from the factory or custom-house'* before the passage of the act 
and h^d intended for sale at the passage of the act should be subject 
to one-half of the differ^ice, manufacturers could not be made to 



^® Notes OD U. S. Reports. 97 U. S. 272-317 

ptythehiU amount because the goods were not physically removed 
from the factory. 

W U. 8. 272-284. Not cited. 

W U. S. 284-293, 24 L. 937, UNITED STATES v. MEMPHIS. 

Syl 2 (IX, 547). Obligation of contracts — Annexation to city. 

Approved in Barber Asphalt Pav. Co. v. French, 158 Mo. 554, 58 
8. W. 940, holding that legislature may delegate to municipal cor- 
porations power to open, improve, and pave streets and in the ex- 
ercise of such powers its discretion within legitimate sphere of Its 
iuthoTity is proportionately as wide as is the lil^e discretion of the 
State and is not subject to judicial revision. 

97 V, S. 293-299, 24 L. 920, MEMPHIS v. UNITED STATES. 

Syl 2 (IX, 548). Effect of repeal of statute on vested rights. 

Approved In Wallace v. Goodlett, 104 Tenn. 688, 58 S. W. 847, 
holding by repeal of an act giving remedy in the courts upon con- 
tracts usurious on their face, suit brought under such act to fore- 
close usurious mortgage was not affected if brought prior to date of 
repeal 

Distinguished In Murphy v. Utter, 186 U. S. Ill, 46 L. 1079, 22 
Sap. Ct 782, holding that fact that the members of board of loan 
commissioners appointed by act of 1897 for Arizona were changed 
between time petition for mandamus was filed and time peremptory 
writ was granted did not abate proceeaing. 

97 U. S. 300-303, 24 L. 924, MEMPHIS v. BROWN. 

Syl. 1 (IX, 548). Mandamus to collect tax to pay judgment 

Approved in Hair v. Burnell, 106 Fed. 284. holding that by Iowa 
statutes mandamus may issue to compel officers of a private corpora- 
tion to issue certificates of stocl^ to one becoming legal owner by 
purchase at sale on execution. 

97 U. S. 304-309, 24 L. 954, TRUST CO. v. SEDGWICK. 

Syl. 1 (IX, 548). Fraudulent conveyances — Settlement on wife. 

Approved in Bigby v. Warnock, 115 Ga. 391, 41 S. E. 624, holding 
conveyance with intention to delay or defraud creditors, where sucn 
intention is known to taker, though made in payment of debt, is 
void. 

97 U. S, 309-317, 24 L. 890, THE VIRGINIA EHRMAN AND THE 
AGNBSE. 

Syl. 1 (IX, 549). Moving, vessels must avoid anchored vessels. 

Approved in The Rotherfield, 123 Fed. 461, holding burden of proof 
is on a moving vessel to exonerate herself from injury to one 
stationary, to show that it was not in her power to prevent injury 
by adopting practical precautions; The America, 102 Fed. 768, hold- 
ing where tug having three tows single file on hawsers over 1,000 



97 r. S. SlS^nSSS Notes oo U. & Beportm. IfO 



feet in lengtb fafled to discorer lights of mncfaored ressd VAtfl •• 
Ute that she barelj missed anchored TesseL thon^ IJ^ts eoald 
he seen, and leading tow under influence of the tide collided with 
it. tng was in faolt. 

D^tinguished in Ross t. Ifcrchants', etc^ Co^ 10ft Fed. 303, liold- 
ing rule of law that moving ressels most SToid those andiored does 
not apply to barges nnnecessarilj anchored where they swung iBt» 
and obetmcted narrow channel of a rirer and were left there at 
night with no one to anend to their lights. 

97 U. & ZIS, 319. Not cited. 

97 U. a 319^323. 24 L. 958L HERBERT t. BUTLER. 

SjL 2 ilX. 550|. Direction of rerdict. 

Approved in District of ColomMa t. Moidton, 1S2 U. S. 582. 4S L 
12ftJL 21 Sop. Ct. S12, holding leaving steam roller dose to cnrti €■ 
street where It is in nse for two dajs after It is bcokcn, witboot 
anj change in its appearance to enhance danger of friditCBiBg 
animals, except by patting canvas over it, does not present case 
of negligence for Jury where horse is fri^tened by It; Bagsdale t. 
Southern By. Co., 121 Fed. 92a. upholding direction €€ verdict In 
action for burning building near track on ground that lire 
communicated by locomotive; United States v. Gumm. 9 }i 
Old. 58 Pac 399. holding where competmt evidence snfllcient tm wmB- 
tain verdict has been given to Jury tending to prove Illegal ciiUlM i g 
and appropriation of government timber, and by defendant eoas- 
petent evidence to Justify such acts, it U error to direct tcnUct; 
Ketterman v. Dry ForiL R. R. Co.. 48 W. Ta. 613» 37 & EL dBOw 
apirfytng rule in action for personal injuries to section hand •■•- 
tained while riding home on hand car which ccrilided with nmawaj 
lumber car. 

97 U. 8w 323-^30. 24 L 930. THE CITY OF HARTFORD. 

SyL 4 ax, 551>. Collision due to Joint negligence — DamagOL 

Approved in The Maling. 110 Fed. 239. holding where three t< 
are in fault for damages to one of them by collision and one t< 
not bound to obey directions of another is induced to do the 
thing constituting her fault by other, the damages which she 
wise should have paid win be borne by the damaged vessel e 
her to commit such fault. 

97 U. S. 331-339. 24 L. 969. INSURANCE CO. t. HARRI& 
SyL 2 fix. 552>. Foreign judgment as evidence. 
Approved in Keyser v. LowelL 117 Fed. 406. holding tiiat atatole 
barring maintenance of action upon judgment of another Stmtc; 
wiilch was barred In former but not In laner State, Is void: Feny 
V. Miltimore Car Wheel Co.. 71 Vt. 459. 76 Am. St. Rep. 78& 45 AtL 
1035. holding in judgment of a sister State jurisdiction Is 
until contrary Is proved. 




in Notes on U. S. Reports. 07 U. S. 330-373 

(IX, 552). Ulsc^aneoos. 

ated In InternstionaU etc., R. R. t. Barton, 24 Tex. Civ. 123. 57 
8. W. 292. snd Ogden City t. WesTer, 108 Fed. 568, both to point tbat 
PodeDcy of salt in State conrt will not sustain plea of lis pendens 
to suit upon same cause of action subsequently filed in Federal 
ewirt; Walsh t. Wallace, 26 Ney. 321, 67 Pac. 915, to point that 
stipQlations between parties should receiye fair and liberal con- 
stmcticm. 

^ U. 8. 339-360. Not cited. 

97 U. 8. 361-^65, 24 L. 1044, STEWART t. SALAMON. 

87L 1 (IX, 554). Decree entered in accordance with mandate. 

AntroTed in Illinois ex r^ Hunt t. Illinois Cent. U. R. Co., ISI 

(7. & 92, 46 L. 447, 22 Sup. Ct. 306, holding that as Circuit Court and 

Circuit Court of Appeals concurred -in finding that structures lu 

Question did not extend into lake beyond point of practical navi- 

S^tiUity, decree t>elow should not be disturbed, unless it was clearly 

in cmflict with evidence; Board of Supervisors v. Thompson. 122 

F*ed. 863, holding not erroneous to strike from answers of inter- 

^«ien mattov adjudicated in former action; Ely the Ca v. Hinckley, 

11X Fed. 841, holding attempted appeal to Supreme Court in case 

in ^hich no appeal to that court is allowed by law does not suspend 

rvaxining of time within which bill of review may be filed; White 

v*. Brace, 100 Fed. 363, 364, holding where Circuit Court of Appeals 

error has afilrmed Judgment of a Circuit Court and issued its 

in usual form, and Circuit Court in compliance with such 

Ksaandate has awarded process against defendant, its order in effect 

im same as a Judgment of the appelate court and cannot be taken 

*«> thtt court for review. 

Distinguished in Southern B. & L. Assn. v. Carey, 117 Fed. 32S. 
tstolding power of Circuit Court to enforce decree entered by it on 
of an appellate court, notwithstanding an appeal tberefroiu 
tender of a proper supersedeas bond, is doubtful, and If it exists 
•^^old be rarely exercised. 

^'^ U. 8. 365^360. Not cited. 

^ V. S, 369-373. 24 L. 1047, TELEGRAPH CO. v. DAVE.NPORT. 

^yL 2 nx, 556). Compelling corporation to transfer stock on 
^^'^oka — Forgery. 

Approved in Geyser-Marion Gold Min. Co. v. Stark. 10<i Feci. 
^^ holding it is the duty of every corporation to use rensoiinMo 
^^'Icence to ascertain whether or not a transfer of stock is niitli<u- 
^ by owner; Herbert Kraft Co. Bank v. Bank of Orland. i:U Ci\\. 
% 65 Pac 144, holding pledgee of stock has right to maintnin suit 
^ equity against corporation and purchasers of the stoik iindtT 
Told assessment sale, ^nd may have the sale vacated and his rignts 
t» the stock oiforced; Consolidated Min., etc, Ca t. Huff. G2 Kan. 



iTt U. S. 374--ft03 Notes oo U. & ReporUL 1T2 




410. 63 Pac. 444, holding Jndgment ordering corpormtion to 
stock CO plaintiff and which finds Talne of stock at certain sain. 
further prorides if said stock not issued by certain time pUiatSC 
shall have Judgment for valae of stock, is erroneous; Morej t. 
Bros. Wagon Co.. 106 Wis. 527. &i N. W. 86i, holding where 
plaint shows contract bj which corporation was to seD shares of 
stock to plaintiff which were placed in hands of pledgee to secvre 
payment of purchase price, action brought to compel recocnStioB 
as stockholder and for an accounting as to diTidends showed a 
cause of action. 

9T U. S. 374-37S. Not cited. 

97 U. 8. 37^-380. 24 L. 1012. WORK t. LEATHERS. 

SyL 1 UX, 557). Owner impliedly warrants semworthfaien of 
resseL 

Approved in M^Cormick t. Shippy, 124 Fed. 52, holding that 
it is competent for charterer of pleasure yacht to stipulate in charter 
party against his liability for loss or damage to vessel throng his 
negligence; Lake Michigan Car Ferry, etc, Co. t. Crosby, 107 FedL 
725. holding that the general rule that bailee for hire Is not liable 
for property without his fault Is api^cable to charter parties for 
vessels in absence of any express provision on the subject. 

SyL 3 (IX« 557). Presumption of tmseaworthiness. 

Approved in The Sonthwark, 191 U. S. 14, holding sudden bceak- 
down of refrigerating apparatus within three hours after Mniwy 
raises presumption of tmseaworthiness at time of sailing; The 
Arctic Bird, 109 Fed. 170, holding tliat sinking of vessel six bourn 
after starting, having been towed in smooth water during all that 
time, must be attributed to tmseaworthiness at beginning of Toyace. 

97 C. S. 3S1--392. Not dted. 



97 U. S. 382-397, 24 L. 1065. ERWIN v. UNITED STATES. 

SyL 2 (IX, 559). Assignments of demands against govemmcnL. 

Apph>ved in Hoffeld v. United States, 1S6 U. S. 277. 46 L. ll«Sw 
22 Sup. Ct. 929, holding purchaser of original right of entryman at 
executi<Mi sale against him or his grantee is not assignee withtai 
meaning of 21 Stat. 2S7, chap. 244; Thayer v. Pressey, 175 Mass. 233, 
56 N. E. 6, holding imder Rev. SUt U. S., f 3177. where govemineDt 
had recognized assignee's rights by passing special act making 
Judgment recovered by them foimdation for appropriation, 
ment of government claim was valid as between parties^ 

97 U. S. 39S-403. 24 L. 1106, KIHLBERG v. UMTED STATBR. 

SyL 1 (IX, 560). Conclusiveness of official's determination as 
contract. 

Approved in United States v. Ellis. 2 Ariz. 257, 14 Pac 301. 
f<dlowing rule; American Bonding, etc Co. v. Gibsmi Co., 127 FedL 



13 NdCeB OB U. S. Reports. 97 U. S. -MM-ASO 

C3L kolffins where contact aotliorized owner to termiiuite it on 

&iB« oi coBtzmctor to proceed with diligence, on certificate of 

aitiiitcct and damases ahonld be audited by architect, recoTery 

pv ^em for delay and excess of expense over cost price where 

CHOaetor discontlnned worlL coold not be had without certificate 

if expense t^ architect; United States t. Bonness, 125 Fed. 489, 

kil£«s Sidection of dead and down timber by logging superin> 

teideats is binding on goremment; United States r. Venable Const. 

<X. 124 Fed. 273^ liolding where contract for furnishing stone pro- 

rided tliat final settlement should be made on final estimates made 

^ cOeer in diarge. estimate made by officer from measurements 

<Bd records was conHusiTc; Williams t. SauU F« By. Co., 153 Mo. 

^ M S. W. TOO, holding where railroad contract provided that 

^^>lue of an extra work and materials should be determiued by 

c^gaaecr and that his findings are finaL contractor cannot claim 

9^ater amount than fixed by engineer, imlesa engineer acted 

^^■dulently. 

CNMingidabed in MobUe t. Shea, 127 Fed. 529. holding where 
^tiuea dty contract for sewer system in accordance with plans 
Morlded that all estimates of work done and materials furnished 
be made by city engineer whoee decision should be final, 
of engineer was final though plans departed from. 

*« r. & 401-123. Not cited. 



r. S. 42^-426c 24 L. lOoi. KEXDIG T. DEAN. 

^ji 3 (IX 563*. Who are necessary parties. 

-Approred in Ban t. C<dumbia So. Ry., 117 Fed. 27. holding in a 
brooght to enforce a mechanic's lien in the name of partnership 
partnership consisted of agreement between plaintiff and 
to share profits, it was competent for Jurisdictional pur- 
to aOege said contract, and citizenship of such partner did 
affect jurisdiction of the court, since he had no interest in suit 
not necessary party; Woodward r. McConnaughey, 106 
^*^d. 760, holding that where complaint avers that legal title to 
in controTcrsy is vested in one who is not a party to suit, 
of making him a party is not dispensed with by averment 
his interest is that of trustee for defendant. 

•^ U, Su 42&-443w Not cited. 

•• ir. 6- 444-450, 24 L. 1110, 6ETTLEMIER t. SULXJVAN. 

^yL 2 (IX. 564). Strict observance of substituted service 




'Approved in New River Mineral Co. v. Seeley. 120 Fed. 201. ap- 

^Ting rule in case where service of process was attempted to be 

^^de on agent c^ foreign corporation und«' Va. Code, f 1105; 

^WoiBas T. Thomas. 96 Me. 224, 52 Aa 642. 90 Am. St Rep. 343, 

^QldiBg where defendant is nonresident and only commorant in 



97 U. 8, 500-540 



a OD U. S. ReportB. 



State of Ohio v. Balllday, 61 Ohio St. 381. 56 N. E. 124, boldloe 
true value for taxing purposes of patented article which Is Dot 
put on market for sale but article rented !s value in bis bands. 

Distinguished In Pegrani v. American Alkali Co., 122 Fed. 1004, 
1005. upholding Pa. Laws 1872, p. GO. regulating execution and 
transfer of notes given for patent rights; Slate v. Cook. 107 Teon. 
507. 509. 64 S. W. 722, 723. upholding act punishing taking of notea 
for patent rights without explicitly stating that fact on face of note. 

Syl. 8 (IX. 574). Property In invention and patented article. 

Approved in Puller v. Berger. 130 Fed. 279, holding neither non- 
use or misuse of patented device by owner of patent deprives bfrn 
of right to enjoin infringement; Diciierson v. Sheldon. 98 Fed. G23, 
holding purchaser of infringing article at sale In proceedings for 
violation of customs taws has no right to vend it as against owner 
of patent where he has knowledge of Its Infringing character. 
97 D. S. 509-540, 24 L. 1118, COLEMAN' v. TENNESSEE. 

Syl. 1 (IX. 575). Court-martlal's Jurisdiction not exclusive of 
State's. 

Approved in NeaU v. United States, 118 Fed. 706, upholding 
District Court's Jurisdiction over prosecution for offense asalnst 
Federal laws though offender was at time an army officer and 
ofTcuse was committed at military post, where accused has since 
been discharged from army; In re Fair. 100 Fed. 151. holding Qndlng 
and Judgment of " not guilty " by court-martial not bar to prose- 
cution for same act by civil authorities. See 92 Am. St. Bep. 08, 

Syl. 2 (IX. D75). Military tribunal's ezclnsive Jurisdiction In 
enemy's country. 

Approved in dissenting opinion In Tucker v. Aleiandroff. 183 
U. 8. 458. 46 L. 278, 22 Sup. CL 209, majority holding Russian se.i- 
man sent over as member of crew of warship being built Is mem- 
ber of naval forces within treaty as to deserters, though ship not 
yet In commission; dissenting opinion In Motherwell v. United 
States. 107 Fed. 44S. majority holding under Russian treaty memb^ 
of Russian navy who la sent here to form part of crew of warship 
being built here but which bas not been completed or accepted or 
Its crew organized cannot be deserter. 

Dlatinguishcd in Motherwell v. United States. 107 Fed. 441, hold- 
ing under Russian treaty member of Russian navy who Is sent to 
form part of crew of warship being built here but which has not 
been accepted or completed or Its crew organized cannot be de- 
serter; reversed in 183 U. 8. 458. 

Syl. 4 (IX. 575). State jurisdiction after court-martial conviction. 

Approved in Carter v. MeClaughey, 183 U. S. 383, 46 L. 246, 22 
I. Ct. ISS, holding punishments of fine and imprisonment im- 




m 



Notes on U. S. Reporta. 97 U. S. 541-553 



rosed 6y tentence of court-n 



nt Illegal because by Bucb 
e Bccased also dismissed from army, 
n: C. S. 541-545. 2i L. 1112, WELSH v. COOK. 
Syl. 2 (IX, oTTi. Second statute repealing fornier. 
Approved In Wisconsin & M. Hy. Co. v. Powers, 191 V. 8. 3S3, 
boldlag Uicblgau act of June 4. 1897, levying specific tax on prop- 
ertr ot railroads repealed sectjoo 3. of act ot May 27, 1893. which 
Hempted certain railroads from taxntlon. 
Sjl. 3 (IX, 577). Repealabllity of tax exemption for period of 



Approved In Stanislaus Co. T. San Joaquin, etc., Co,. 192 U. S. 
SB, 24 Snp. CL 244. boWlng Cnllfornln water act of 18ti2, providing 
Ibat lopervlsors sbould regulate water rates, but could not reduce 
IbecQ below certain point, not contract whicu la impaired by subse- 
floent act authorizing reductioo l)eIow such point; Wlsconslu & M. 
Rj, Co. V. Powers, 191 U. S. 3S0, holding provision in general tax 
1»" eiemptlng railroads operating north of certain parallel from 
tM for ten years not contract within obligation clause of Con- 



l 8. 54C-553. 24 L. 1082, UNITED STATES V- CLAFLIN. 

rl 3 (IX, 377). Repeal by Implication dependent on legislative 



See 88 Am. St. Rep. 272. note. 
Sjl. 4 (IX. 577). Repeal by implication. 

Approved in Saunders v. United States, 114 Fed. 44, affirming 

K fed. 198, holding 26 Stat., chap. 814. i 3, fixing compensation 

of coBtoms collector of Puget Sound district repeals Hev. Stat.. 

( ^0; State v. Estep. GG Kan. 420, 71 Pac. 858, holding Gen. Stat. 

!901, I 2463, crtating and defining common nuisance under Hquor 

lair, was repealed by Gen. Stat. 1001, { 2493. and repeal destroyed 

fwe of following clause relating to Injunction: Stale v. Davis, 129 

>'. C. 573. 40 3. E. 113, holding act of 1901, chap. 501. repealed act 

of 1899. chap. 581, relative to working of highways, as to Uarlon 

■ownsblp. 

SyL S (IX, 5T8). Bepeal by ImpUcaUon — Similar objects. 

Approved In The Adula. 127 Fed. 857, holding Rev. StaL. U 4646, 

4Gt7, relating to compensation o( district attorney in prise cases, not 

repealed by 29 StaL 179. providing salaries for such officers; Fair 

Baren & W. R. R. Co. v. New Haven. 75 Conn. 446. 53 All. 962. 

bolding 12 Special Laws 5f^. autliorlKlug street paving In New 

Haven not repealed by section 3 of act of 1899; Braman v. New 

Xx>Ddon, 74 Conn. 698. 51 Atl. 1083, holding act of 1805, chap. 145. 

provldiog for appointment of health officer by cities, repealed all 

Vol. 11 — 12 



i 



U7 U. S. 554-564 Notes on U. S. Reports. 178 

inconsistent charter provisions; Sefton t. Board, etc, 160 Ind. 858. 
66 N. E. 891, bolding Acts 1889, p. 433, for construction and improve- 
ment of county line highways, not repealed by Acts 1899, p. 468; 
Wllburn v. Territory, 10 N. Mex. 408, 62 Pac. 971, holding Laws 
1884, chap. 47, f§ 15, 16, punishing stealing of live stock, not re- 
pealed by Laws 1891, chap. 80, { 8, punishing larceny according 
to value of property stolen; Davis v. Supreme Lodge K. O. H., 165 
N. Y. 167, 58 N. E. 894, holding Code Civ. Proc., { 834, as to pro- 
hibition of statement of attending physician as to knowledge ac- 
quired in professional capacity, not repealed by New York charter, 
§ 1172; Snearley v. State, 40 Tex. Cr. 514, 52 S. W. 549, hold- 
ing occupation tax imposed on sales of liquors by Rev. Stat., f 5060a, 
not repealed by adoption of local option in county; Braun v. State, 
40 Tex. Cr. 238, 49 S. W. 621. holding Penal Code, art 891, requir- 
ing butchers to report all animals slaughtered at each regular term 
of commissioner's court, not repealed by act of 1889, p. 84, nor by 
act 1893, p. 38, requiring execution of bond and keeping of report- 
book by butchers, and providing for examination of said book 6y 
inspectors. See 88 Am. St. Rep. 274. note. 

Distinguished in In re Dietrick, 32 Wash. 478, 73 Pac. 508, bold- 
ing Laws 1903, p. 63. making gambling a felony, not invalid by 
reason of failure to set it forth as an amendment of Ball. Code, 
S 7260, which defines same acts of gambling as constituting mis- 
demeanor. 

97 U. S. 554-564, 24 L. 1053, RAILWAY CO. y. SAYLES. 

Syl. 1 (IX, 579). Patent as monopoly against variations. 

Approved in Diamond Match Co. v. Ruby Match Co., 127 F6d. 
346. holding Beecber patent No. 389.435, for match-making machine* 
valid and infringed by Kelley patent No. 592,605; Wilson v. Townley 
Shingle Co., 125 Fed. 495, holding Sears patent No. 335,635, for 
shingle-edging machine, limited by prior art; Rolfe EL Co. v. Ster- 
ling El. Co., 113 Fed. 431, holding Barrett patent No. 445,217, for 
thermal cut-out, not infringed; Piaget Novelty Co. v. Headley, 107 
Fed. 136, holding Headley patent No. 384,523, for coin receptacle and 
register, not infringed as to claim 5; Brammer v. Schroeder, 106 Fed. 
920, holding combination of Brammer patent No. 606,044, infringes 
Schroeder patent No. 535,465, claim 1, for washing machine; Brad- 
ner Adjustable Hanger Co. v. Waterbury, etc., Co., 106 Fed. 786, 
holding Farnum patent No. 213,642, f-or improvement in ball toys, 
infringed by Shuttuck patent No. 485,713; Bowers v. Pacific Coast 
Dredging, etc., Co., 99 Fed. 748, holding Bowers patent No. 318,850, 
for dredging machine, and No. 318,860, for art of dredging, infringed 
by dredger made under Parker patent No. 601,524. 

Syl. 2 (IX, 580). Patents — Gradual advance toward desired 
machine. 

Approved in Anderson v. Collins. 122 Fed. 459, holding Ck>lliii8 



1TB 






u. ; 



Reporu. ST U. S. 504-575 



P*leDl N't). SD5,6t)6, for roller bearlogs. Enfrlngeil by Bumell patent 
.Vo. 62IJ18; Farmers' Mfg. Co. v. Spniks Mfg. Co.. llfl Fed. 507, 
holding Enst patent No. 420.021, tor veutilntiDg barrel, void In view 
ot prior art; I<ie v. Trorlicht, etc.. Carpet Co., 115 Fed. 143. up- 
boldlng ide patent No. 3il7,293, claims 3 and 4, for automatic lubrl- 
(Mtlcg device; Kinloch Tel. Co. v. Western El. Co., 113 Fed. 668. 
folding Seel; pnteni No. 330.067, for Improvement in grouping spring 
JackB and aDnuncialore for multiple Bwitcbboards. valid and In- 
fringed by Kinloch Telephone Company's divisional system; Na- 
tional Hollow, etc.. Co. V. luiercbangeable. etc., Co., 106 Fed. 710. 
712, upholding Hein patent No. 361,009, elnira 2. for brake beam; 
WiUlam Manu Co. v. HofTmann, 104 Fed. 254. holding Leslie patent 
No. 581,123, for improvement In loose leaf binders, not being pioneer 
iDTention Is not infringed by binders made In accordance with 
Boflaiauii patent No. 66S.251. 

8yL 4 (IX, 581). Patents — Variations from original application. 

A.pproved In Klrchberger v, American, etc.. Burner Co,, 128 Fed. 

B06, holding Dolan patent No. 589,34:!, for acetylene gas burner, 

yaildand Infringed; Fay v. Mason, 127 Fed. C30, holding Fay reissue 

So. 11,864. for Ironing machine, not infringed by Rickey patent No. 

660.277; Sander v. Rose, 121 Fed. 840, holding Rose patent No. 

110,316. (or disk harrow, limited to specl&c constructloa and not 

Infringed by Lindgren patent No. 64o.S18: Mayo Knitting Machine, 

etc., Co. V. Jenckes Mfg. Co., 121 Fed. 123, holding Jolius patent 

^0. U00,68S. for winder for Iniruduclng extra tbread in knitting, 

limited by prlo.- art and not infringed by Howe patent No. 581.887; 

American Bell Tel. Co. v. National Tel., etc.. Co., 109 Fed. 1005. 

Wdlog Berliner patent Na 46;i,569, for telephone transmitter, rold 

for anticipation. 

Distinguished in Hobbs T. Beaeh, 180 D. 8. 396. 45 L. 593, 21 
Snp. Ct 414. upholding Beach reissue No. 11,167, for machine to 
atiacli stays to corners of boxes. 

S7 U. S. 564. 565. 24 L. 1108, GRAY T. BLANCHARD. 
8;l. 3 (IX. uS2). Appeal — Record showing Insufficient amount. 
Approved In Turner t. Southern Home, etc., Assn., 101 Fed. 313, 
holding where amount of loon to stockholder In building association 
together with dues In arrears, amounted to over $2,000, at time of 
foreclosure, fact that borrower In answer asked that value of stock 
be credited on loan as permitted by by-laws, by which amount due 
ivas reduced .ielow $2,000, did not afTect Federal jurisdiction. 
97 U. 8. 560-575, 24 K 1015, COOK t. PENNSYLVANIA. 
Syi. 1 (IX, 582). Auctioneer's tax based on amount of sales. 
Approved In Falrbank v. United States, 181 U. S. 207. 45 L. 868, 
21 Sup. Ct. 654. holding stamp tax imposed on foreign bills of 
lading by 30 Stat 448. j 0, is rold fts tax on e:[ports. 



97 U. S. 57SM»4 Notes on U. S. Reports. ISO 

SyL 2 (IX, 583). Commerce — Auctioneer's tax on sales. 

Approved in State y. Allgeyer, 110 La. 840, 34 So. 799, holding 
license tax on business of buyer of cotton for export is duty on 
exports and void; State y. Montgomery, 94 Me. 200, 47 AtL 106^ 
holding void bawkefs and peddlers act of 1889, chap. 298; State 
V. Zophy, 14 S. Dak. 125, 84 N. W. 393, 86 Am. St Rep. 745, hold- 
ing void Sess. Laws 1897» chap. 72, imposing annual tax on parties 
outside of State who have wholesale liquor establishments in State, 
and providing that manufacturers in State shall be exempt from 
wholesaler's license; Southern Express Co. v. Goldberg, 101 Va. 024, 
44 S. E. 895, holding Code, { 1215, void, in so far as It under- 
takes to fix and prescribe rate of charges to be received by express 
companies engaged in interstate commerce. 

Distinguished in United States v. Thomas, 115 Fed. 209, up- 
holding war revenue act 1898, schedule A, { 25, punishing faOure 
to stamp memon;uda of sales of stock. 

97 U. S. 575-n581, 24 L. 1130. HOSMER v. WALLACE. 

Syl. 5 (IX, 584). Pre-emption on land occupied by others. 

Approved in Empire State-Idaho, etc., Co. v. Bunker Hill, etc* 
Co., 114 Fed. 119, holding where lode is of greater width than 300 
feet, so that outcroppings extend beyond side line, another dalm 
may be located therein which will carry all surface rights within 
its boundaries; Cosmos Exploration Co. v. Gray Eagle, etc, Co., 
112 Fed. 17, 18, holding under forest reservation act of June 4, 1897, 
title to lands selected as lieu lands not vested until approval of 
selection by land department; Lockhart v. Wills, 9 N. Mex. 355, 54 
Pac. 340, holding lands embraced within boundaries of Mexican 
grant in New Mexico in 1893, as claimed, and which was sub 
Judice in Court of Private Land Claims, were open to exploratioii 
and purchase under mining laws. 

97 U. S. 581-584, 24 L. 1085. NBWCOMB v. WOOD. 
SyL 2 (IX, 585). Waiver of oath of arbitrators. 

Distinguished in Gage v. Judson, 111 Fed. 354, holding where dis- 
trict attorney and attorney for defendant agreed upon committee 
to assess damages in government condemnation proceedings, award 
of committee not binding on government where court never ap- 
proved appointment. 

Syl. 3 (IX, 585). Objection that reference signed by part of 
referees. 

Approved in Judson v. United States, 120 Fed. 644, holding under 
Connecticut law where cause is submitted to arbitration under 
statute providing that each party may appoint arbitrator and court 
may appoint third, fact that all three are appointed by third does 
not invalidate award where parties proceed to Judgment without 
objection; Allen v. Hickam, 156 Mo. 59, 56 S. W. 312, holding part> 



181 



Notes on V. S. Reports. 



I U. 8. 584-628 



ttatat and participating In all proceedings before firbitrators can- 

But attack report on (ground that witnesses were not drawn where 
' tc males do objection at time. 
' 8yL4aX, 585). Review of action on motion for new trlHl. 

Approved in Board of Comrs. v. Keene, etc., Rank. lOS Fed. 516, 
bcldlng nilisg of trial court on motion for sew trliil on ground of 
newlj aiBcovered evidence cannot be reviewed In absence of gross 
ibaae of discretion: City of Manning v. German Ins. Co., 107 Fed. 
57. aad James P. Wltherow Co. v. De Bardeleben Coal, etc., Co.. 99 
Fed, ST3, both holding State statute providing for appc-nl from 
ruliap on motion for new trial not applicable In Federal courts. 
97 D. B. 684-B94. 24 L. lOOD, GAUSSEN v. UNITED STATES. 

Sjl. 1 (IX, 586), Government agenfa laches not bar. 

Approved in United States v, Beebe. 180 U. S. 354. 45 L. 570, 21 
Sup, Ct. 373, holding there was no laches In attacking compromise 
jtiiigment In favor of United Stales wbere there was delay of dve 
jeora in attacking It. after Judgment entered, where no one. having 
amiiorlty to act bod any knowledge of facts until that time; Pond 
t. United States. Ill Fed. IIM, holding Cnl. Code Civ. Proa, 
1 1502, providing that on death of defendant, plaintiff must present 
fJalni to administrator for allowance or rejection, and that no re- 
wvecy can be had without proof of such presentation, not appll- 
i^hle to action by united States on bond of oQlcer, 
8"B. 8. 594-623, 24 L. 1018, FORD v. SURGHT. 

Sjl, 3 (IX, 587). WW— Acts under authority of Confederate 
Ei>v«nitnent 

Approved In Commonwealth v. Shortall, 206 Pa. St. 173, 55 Atl. 
Q^. bolding member of militia called out to suppress disorder, who In 
performance of duty and under order of officer commits homicide, 
la cot liable. 
97 D. 8. fi24-«28. 24 L. 1027, HOWLAND v. BLAKB. 

Syl. 1 (IX, 5S7). Burden to show writing does not express in- 

Approied in Linton v. Nat. Life Ins. Co., 104 Fed. 590, apply./ig 
principle where acknowledgment of married woman was attacked; 
Searles v. Churchill, 69 N. H. 531, 43 Atl, 1S5, reforming deed con- 
veying through mistake certain tract of land. 

Syl. 2 (IX, 58S). Sufficiency of testimony to vary writing. 

Approved Id Norman v. Gunton, 127 Fed. 872, applying rule In 
suit to enforce parol agreement by mortgagor to bold title of mort- 
gaged property after foreclosure, subject to mortgagor's right o( 
redemption, after expiration of period allowed by law; Flies v. 
Brown, 124 Fed. 139, applying rale to action to rescind contract of 
sale of property bought at auction for apparently Inadequate price; 




\ 



97 U. S. 628-942 Notes on U. S. Reports. . 182 

Chicago, etc.. By. y. Wilcox, 116 Fed. 914, holding mere preponder- 
ance of testimony insufficient to establish fraud or mistake as will 
warrant setting aside written agreement of settlement and release; 
Thallmann t. Thomas, 111 Fed. 282, holding mistake in mining pat- 
ent must be shown by dear and convincing evidence; American Bell 
TeL Co. V. National TeL, etc, Co., 109 Fed. 1010, holding evidence in- 
sufficient to show statements in Berliner application on which 
patent No. 463,589, was issued were made through clerical mistake 
authorizing their being struck out by amendment; Sowles v. Wilcox, 
127 Mich. 169, 86 N. W. 690, holding where land mortgaged to surety 
on appeal bond« and is afterward conveyed to surety by absolute 
conveyance, and surety pays judgment debt, but it is understood 
at time of conveyance that mortgagor may pay debt himself, or 
defeat judgment by legal proceedings, which he attempts to do, deed 
is mortgage and not conditional sale; Wilson v. Cunningham, 24 
Utah, 182, 67 Pac. 122, applying rule in suit to set aside bill of 
sale; Myers v. Myers, 47 W. Va. 490, 35 S. B. 869, holding if 
guardian purchases tract of land with her own money, and on her 
own credit, and takes deed in own name, mere fact that she satisfies 
purchase price out of guardianship funds afterward coming Into 
her hands cannot create trust in favor of ward; Glocke v. Glocke, 
113 Wis. 309, 89 N. W. 120, holding not essential to condition subse- 
quent in conveyance that it be created by express words or that 
there be express power in writing to make re-entry for conditions 
broken; Linde v. Gudden, 109 Wis. 329, 85 N. W. 324, holding testl- 
money of party to deed, who would overturn it, that she did not 
execute it, is insufficient to overcome force of apparent execution 
and of acknowledgment, though there is other testimony showini^ 
that her signature was not on instrument when signed by witnesses 
some days prior to acknowledgment. 

SyL 3 (IX, 588). Agreement to purchase land for another. 

Approved in Heaton v. Gaines, 198 111. 487, 64 N. E. 1083, holding 
evidence insufficient to show deed to be mortgage. 

97 U. S. 628-642, 24 L. 1086, DAVIE v. BRIGGS. 

Syl. 1 (IX, 588). Presumption of death from absence. 

Approved in Fidelity Mut Life Assn. v. Mettler, 185 U. S. 319, 
46 L. 930, 22 Sup. Ct 666, upholding refusal of instruction that 
unless Jury believe from evidence that insured when last seen was 
in such position of peril that it is more probable that he lost his 
life than that he saved himself, where there is no evidence that he 
was in position of peril when last seen; Winter v. Supreme Lodge. 
101 Mo. App. 555, 73 S. W. 878, and 96 Mo. App. 13, 69 S. W. 665, 
both holding where testimony showed that insured disappeared 
more than seven years before, and that he had not been heard from, 
error to instruct that if he disappeared and had not been heard of 



1 D. S. Beporti. 97 U. S. 642-651 



Sjl 2 (IX, 5S9). CoartB — Adoption of Slate statutory cooBtruc- 



ippMfed Jn Mather t, San Francisco, 115 Fed. 44, boldlng under 
CiL Code Civ. Proc, S 337, requiring action on written Inatru- 
Dient ta be brought within four years, action on Interest coupons 
itUcbed to muDlcipal bonds Is barred In four fears from time 
WDpons matDred though coupons not detached from bonda. 
W U, B. (M2-ei6. 24 L. 1035, STAGEY t. EMBKY. 

Sjl3 (IX, 589). Uallclous prosecution — Uallce and want ol 
probable cause. 

S«e 03 Am. St Rep. 455. note. 
97 U. S. 646-651. 24 L. 1067, EOBEBTSON f. CEASE. 

Sjl. 1 {IX. 589). Record must show Jurisdictional facts of cIH- 
leoBiiip, 

Approved in Watson v. BonQls, 116 Fed. ICO. reaffirming rule; 
Walle T. Santa Cruz, 184 U. S. 327, 46 L. 563. 22 Sup. Ct. 336, hold- 
liEnilt b; transferee of bonds dues not Involve controversy within 
CIrenit Court's Jurisdiction within Judiciary act of 1875, If trans- 
fen made for collection only, and Jurisdictional amount made by 
Trltlng [u bis bands bonds of owners who separately bad less than 
Jarlsdlctional amount: Great Southern Fire Proof Hotel Co. t. Jones. 
177 U. 8. 453, 44 L. 844, 20 Sup. Ct. 692. holding lliiited partner- 
•lilp created under Pa. Laws 1874. p. 271, not citizen of 
State, within constitutional provision relative to dlversr- citizenship: 
DaltOB T. Milwaukee Mechanics' Ins. Co., 118 Fed. 878, 870, holding 
reawval petition Insufflclent where averred tbat defendant is cor- 
PvritloD and citizen and resident of State named. Instead of that It 
ii organized under laws of that State: German Sav.. etc., Soc. v. 
I^tmltzer. lie Fed. 472. holding diverse citizenship authorizing 
temoval must eiist at time suit la begun as well as at time of 
femoral and must be made to appear: Mayo v. Docliery. 108 Fed. 
Wt. holding marshnl sued for trover in State court tor seizure of 
property under Federal process cannot remove action Into Circuit 
Court by applying to such court tor certiorari; Fife v. Whittell, 102 
f^ 539, boldlng removal petition alleging diverse citizenship and 
f^ldeace of parties, but falling to allege that defendant is non- 
f^^Ideat of State where suit Is brought is InsulBcIent: Thompson v. 
Sooiiiern By., lao N. C. 142. 41 S. E. 10. holding removal petition 
liol sufficient which alleges merely that petitioner Is corporation 
orlglaally created under laws of another State; dissenting opinion 
I" Giles T. Harris. 188 U. S. 501, 23 Sup. Ct 646. 47 L. S18. majority 
'lalding absence of averments In blU In Circuit Court showing 



4 




97 U. S. 662-669 Notes on U. S. Reports. l&l 

JnrisdictioDal amount was In dispute is not available on appeal to 
Supreme Court, which raises jurisdiction on another ground and no 
objection to omission of such allegations was made in that court 

Syl. 2 (IX, 690). Cithsenship and residence not synonymous. 

Approved in Eisele v. Oddie, 128 Fed. 945, holding diverse citiaen- 
shin shown where plaintiff bringing suit in Nevada against citisen 
of that State, alleging residence in California, testified that he had 
gone to Nevada for his health, but intended to return and considered 
California his home; Illinois Life Ins. Co. v. Shenehon, 109 Fed. 675. 
holding woman removing to another State to attend to litigation 
not citizen of such State where she had no intention of making such 
place her permanent home; Hamill v. Talbott, 81 Mo. App. 216, hold* 
ing Ohio statute permitting service by leaving copy at defendant's 
usual place of residence is constructive service only unless defend- 
ant is citizen of Ohio. 

SyL 3 (IX, 590). Averment of residence insufficient to show 
citizenship. 

Approved in Thomas v. National Bank of D. O. Mills, 106 Fed. 
438, reaffirming rule; Littell v. Erie R. R. Co., 105 Fed. 539, holding 
allegation that complainant is citizen of United States and an 
actual resident of State named is sufficient allegation of his citi«en- 
ship in State for jurisdictional purposes. 

Syl. 5 (IX, 691). Amendment on appeal to show jurisdiction. 

Approved in Kinney v. Columbia Savings, etc., Assn., 191 U. 8. 
83, holding where removal petition otherwise sufficient contains 
general averment of diverse citizenship with specific averment of 
defendant's citizenship and plaintiff's diverse citizenship may be 
inferred from record. Circuit Court may permit amendment by 
addition of specific averments of plaintiff's citizenship; Watson t. 
Bonfils, 116 Fed. 161, holding where through mistake or inad- 
vertence, requisite averments of citizenship not made, appellate 
court may reverse and remand cause with leave to lower court to 
permit amendments to show jurisdiction, but cannot permit such 
amendments in appellate court. 

97 U. S. 652-659. 24 L. 1063, BARNEY v. DOLPH. 

Syl. 3 (IX, 591). Conveyance of land before issuance of patent. 

Approved in Jopling v. Chachere et al., 107 La. 529, 32 So. 246, 
holding after confirmation by commissioners for western district of 
Orleans of claim based on occupancy and settiement, followed by 
congressional confirmation, property was subject to State taxation 
though patent not yet issued; State ex rel. Billings v. Bridges, 22 
Wash. 65, 79 Am. St Rep. 915, 60 Pac. 61, holding where applicant 
for tide lands has complied with all preliminary requirements of 
existing law at time of application, which would entitle him to eon- 



185 Notes on U. S. Reports. 97 U. S. 659-082 

tract of sale, he has acquired vested right in such lands of which 
he cannot be deprived by subsequent repeal of law under which 
application made. 

»7 TJ. 8. 669-682, 24 L. 1036, FERTILIZING CO. t. HYDE PARK. 

Syl 1 (IX, 692). Public grants strictly construed. 

Approved in Cornell v. Coyne, 192 U. S. 432, 24 Sup. Ct. 386, 
holding fact that quantity of '* filled cheese " was manufactured 
expressly for export does not exempt it from tax imposed by 29 
Stat. 253; Louisiana, etc., R. R. Co. v. State Board of Appraisers. 
108 La. 19, 32 So. 186, holding under Const., art 230, road bond of 
railroad lacking 20 per cent of completion, and total of 315 feet of 
t'^tle vrork In distance of eighteen miles, not exempt from taxation 
AB bein^ substantially completed. 

Syl 3 (IX, 594). Abatement of nuisance as police power. 

approved in Fisher v. Cushman, 103 Fed. 865, holding municipal 

Uqnor license transferable subject to approval of authorities which . 

te ordinarily granted is available as assets under bankruptcy act; 

City or Westport v. Mulholland, 169 Mo. 95, 96, 60 S. W. 78, up- 

boldin^ city ordinance punishing tearing up streets without per- 

ii^ioxi of aldermen as police regulation. See 78 Am. St. Rep. 257, 
oote. 

Syl* ^ (IX, 591). Maintenance of nuisance not gained by prescrip- 
tion. 

Api>i*c)ved in Town of Weston v. Ralston, 48 W. Va. 178. 36 S. E. 
*^» folding where public easement has once been lawfully estab- 
lished «Yer land for highway, such easement is good against any 
^^ all titles; dissenting opinion in Word v. Soutiiem Mut Ins. Co., 
112 a^^ 590^ 37 s, E. 902, majority holding Civ. Code, § 2110, is ap- 
plicat^l^ to contracts for fire insurance made by purely mutual fire 
Insura.x^ce company. 

Sjl- Q (IX, 594). Extent of police power. 

-^P^^oved in Commonwealth v. Pear, 183 Mass. 245. 66 N. E. 721, 
nphol^^g Rev. Laws, chap. 75, { 137, authorizing boards of health to 
'^Qlr-^ vaccination of all its inhabitants, and imposing fine for 
*^C5n of such requirement 

^^^ 6 (IX, 595). Right to engage in business subject to police 
powe^^ 

^P&:»roved in L'Hote v. New Orleans, 177 U. S. 597, 598, 44 L. 903, 
^ ^^^ Sup. Ct 791, 792, upholding ordinance prescribing limits out- 
o^ which no woman of lewd character shall dwell; Odd Fellows* 
Cemfe^^py Assn. v. San Francisco, 140 Cal. 235, 73 Pac. 090, up- 
holdi^:^^ ordinance prohibiting interments within city limits; Dob- 
btaa ^^^ ^^y ^j Los Angeles, 139 Cal. 185, 72 Pac. 971, upholding city 
oroin^i^^^ mi^^liig n unlawful to erect or maintain gasworlLS or to 



97 U. S. 682-693 Notes od U. S. Reports. 188 

store gas, except within certain defined limits; Snonffer t. C. B. M. 
City Ry. CJo., 118 Iowa, 301, 92 N. W. 84, holding city may require 
street railroad to remove tracks to middle of street, place same at 
grade, and pave portion of street It occupies; Westport y. Mulhol- 
land. 84 Mo. App. 327. holding where company secured right from 
county to operate railroad in highway and city extended limits 
and took in highway, railway employee liable, under city ordinance* 
for digging up highway without permission. 

97 U. S. 682-687. Not cited. 

97 U. S. 687-693, 24 L. 1098, MATTINGLY y. DISTRICT OP CO- 
LUMBIA. 

Syl. 1 (IX, 596). Congressional legislative control over District of 
Columbia. 

Approved in Wight v. Davidson, 181 U. S. 380, 45 L. 906, 21 Sup. 
Ct 620, upholding act March 3, 1899, providing for assessment on 
abutting lands and lands benefited of one-half or more of damages 
for and in respect of land condemned for opening of streets. 

Syl. 2 (IX, 596). Street assessment. according to frontage. 

Approved in Chadwick v. Kelley. 187 U. S. 543. 23 Sup. Ct 177, 
47 L. 2^, upholding Louisiana statute under which three-fourths 
of cost of paving city street may be assessed on abutting proi>ert7 
in proportion to foot frontage; Wight v. Davidson, 181 U. S. 379, 45 
L. 904, 21 Sup. Ct 619, upholding act of March 3, 1899, for assess- 
ment on abutting lands and lands benefited of one-half or more 
of damages for and in respect of land condemned for opening of 
streets; French v. Barber Asphalt Paving Co., 181 U. S. 335, ^42, 
45 L. 886, 889, 21 Sup. Ct. 629, 632, holding apportionnrent of entire 
cost of street pavement upon abutting lots according to frontage 
without any preliminary hearing as to benefits may be authorized 
by legislature; Hadley v. Dague, 130 Cal. 219, 62 Pac 504, up- 
holding street improvement act of 1891; Barfield v. Gleason, 111 
Ky. 517, 63 S. W. 969, upholding Ky. Stat, { 2838, providing 
for original construction of streets in cities of first class at 
exclusive cost of owners of abutting property according to area; 
King V. Portland, 38 Or. 424, 63 Pac. 8, upholding Portland charts, 
§ 138, requiring council to assess against abutting lots in city, 
cost of improving half of street immediately in front of audi 
lots, and providing that cost of improving street intersections shall 
be assessed five-ninths to first fifty feet and remainder to next 
fifty feet, in abutting quarter blocks. 

Distinguished in dissenting opinion in French v. Barber Asphalt 
Paving Co., 181 U. S. 358, 45 L. 895, 21 Sup. Ct 638. majority hold- 
ing apportionment of entire cost of street pavement upon abutting 



187 Notes on U. S. Reports. 97 U. 8. 683-712 

lots according to frontage witboat any preliminary hearing at to 
benefits may be authorized by legislature. 

SyL 3 (IX, 596). Validation of erroneous assessment. 

Approved in Dever v. Comwell, 10 N. Dak. 129, 86 N. W. 230, 
holding Laws 1897, chap. 99, { 1, validating tax levy of 1895, did 
not Talidate any tax sale or give effect to any void deed, as It 
only operated on uncollected taxes based on said levy; Thomas v. 
Portland, 40 Or. 53, 66 Pac. 440, and Nottage v. City of Portland, 
35 Or. 548, 55(;. 76 AuL St ICep. 515, 521. 58 Pac. 885. 887, both 
upholding Portland charter, f 156, authorizing city, if any 
usessment levied to defray cost of street improvements is invalid, 
to recover it of owners of land chargeable and providing that it 
shall apply to invalid assessments made before its passage. 

W U. S. 603-697, 24 L. 1101, RUCH v. ROCK ISLAND. 

SyL 2 (IX, 596). Testimony of deceased witness at former trial. 

Approved in Hlggins v. State, 157 Ind. 63, 60 N. B. 688, holding 

stenographer shown to have taken notes of testimony of defendant 

▼ho testified as witness before grand jury, and testifying that 

notes are correct, may read his notes at trial, to impeach defendant, 

though aside from notes he has no recollection of what defendant 

said. See 91 Am. St. Rep. 205, note. 

SyL 5 (IX, 597). Breach of condition subsequent as reversion. 

Approved in First Presbyterian Church v. Elliott, 65 S. C. 256, 
43 S. E. 676, holding right of re-entry on breach of condition subse- 
quent in deed cannot be assigned, though right given grantor, his 
heirs, or assigns. See 79 Am. St. Rep. 753, note. 

SyL 7 (IX, 397). Re-entry not essential after breach of condition 
subsequent 

Approved in Union Pac. Ry. Co. v. Cook, 98 Fed. 284, holding 
^vrhere grantee on condition subsequent has clearly manifested in- 
tention not to perform condition, so that his holding thereafter may 
be deemed to be adverse, limitations run from that time against 
suit by his grantor. 

97 U. S. 697-712, 24 L. 1091, RAILROAD CO. v. GAINES. 

SyL 1 (IX, 597). Scope of tax exemption of capital stock. 

Approved in Georgia B., etc., Assn. v. Savannah, 109 Ga. 71, 35 
S. E. 70, holding void provision of building and loan association 
tax law providing that taxes imposed thereby shall be in lieu of 
all other taxes and licenses whether State, county, or municipaL 



XCVIII UNITED STATES. 



98 U. S. 1-19. 25 L. 60, PALMER r. LOW. 

SyL 4 ax. 599). Alcalde grants to Infants good. 

Approved in Watson v. White, 26 Tex. Civ. 446, 64 S. W. 829; up- 
holding under Tex. Const 1S76. arts. 7, 14. legnhitlng saM 
of public lands, and Sayles' Anno. Civ. Stat, art 421Sft rights of 
infant who is actual settler. 

98 U. S. 20-31. 25 L. 43. GLENXY v. LANGDON. 

SyL 1 (IX« 600). Assignee recovers property conveyed by hank- 
nipt 

Approved in Boyd v. Schneider. 124 Fed. 242. 243. holding under 
Rev. Stat. I 5239, receiver and not creditors proper party to recover 
against directors of insolvent national bank sums lost through mis- 
management; Bowker v. Hill, 115 Fed. 529, upholding suit by tma- 
tees of dissolved corporation to recover choses in action transferred 
by it after insolvency; Hally burton v. Slagle. 130 X. C 486, 41 S. K. 
879, holding assignment by register in bankruptcy to trustee vnder 
bankruptcy act 1S67, North Carolina conveyed bankrupts land to 
assignee though not named in schedule; Falco v. Kauplsch. etc., 
Co.. 42 Or. 425. 70 Pac. 287, holding under 30 Stat 565, girln^ 
bankrupt could sue before bankruptcy, Distric Court without Jn- 
risdiction where no diverse citizenship. 

Distinguished in Perkins v. McCauley. 96 Fed. 287, holding under 
bankruptcy act 1898. I 23b, allowing suits by trustee only what 
bankrupt could sue before bankruptcy. District Court without loris- 
diction where no diverse citizenship. 

Syl. 4 (IX, 601). Assignee need not take burdensome assets. 

Approved in In re Cogley. 107 Fed. 74. holding improper referee^ 
order of sale of property where liens and costs took entire proceeds 
of sale; Klein v. Gavenesch Co.. 64 N. J. Eq. 53, 53 AtL 197, hoM- 
iDg lessor for term of years of store cannot hold receiver of In- 
solvent lessee for rent receiver having quit premises; dlssoitlnip 
opinion in Waco v. Bryan. 127 Fed. 84, majority holding under 
bankruptcy act 1898. chap. 541. city's claim against bankrupt for 
taxes assessed against him entitled to priority, though pcopertj 
never came into trustee's hands. 

£1881 



Notes on U. S. Reports. 08 U. S. 31-61 

^ ^. & 31^50. 25 L. 68, BATES r. COB. 

^JL 1 (IX, 601). Inventioii presumed made when application 
fi/ed. 

^istjnguished in Diamond Drill & Mactu Go. ▼. Kelly Bros., 120 
-^ecL 2S7, holding defendant cannot show invention of prior patent 
^As made before date of patent where question is one of anticipa- 
tJoxu 

^T^I. 5 (IX, 602). Complainant introducing patents gives infringer 

-^I>X)roTed in Covert ▼. Covert, 106 Fed. 187, holding proof by de- 
f<&XKdajit that complainant placed article patented on sale two years 
patent obtained showed abandonment. 

6 (IX, 602). Old elements in novel combination patentable. 

-■^Oproved in McMichael, etc., Mfg. Co. v. Ruth, 128 Fed. 708, hold- 
lA^ knitting machine composed of previously known elements com- 
t>i^M^id in novel and useful manner patentable; American Saddle 
C«i>. ^w. Sager Clear Co., 122 Fed. 646, holding Wheeler saddle pre- 
s^x&^lJDg combination of old saddle elements with no functional 
flto^w^lty not patentable for anticipation. 

Sjrl. 11 (IX, 602). Where patent entirety, proof must follow. 

-Approved in Emerson, etc* Mfg. Co. v. Van Nort, etc., Co., 116 
'Fed. 977, upholding Meston*s patent 622^247, improvement in lubri- 
cmted bearings for ceiling fan motors, containing old elements in 
oe^w and useful combination. 

(rX,60L) Biiscellaneous. 

Approved in Anderson v. Collins, 122 Fed. 458, holding immaterial 
evidence of similar combination sought to be patented after appli- 
cation made for patent in question; Goodyear Tire, etc., Co. v. Rub- 
ber Tire, etc, Co., 116 Fed. 376, holding void Grant patent 554.(r75, 
'or nibber-tire wheel, l>eing combination of old elements with no 
"^^ function disclosed; Chlsholm v. Johnson, 106 Fed. 213, holding 
'^oln^er of parties plaintiff joining same who had no interest 

Intents not prejudicial on particular facts. 

*^ ^- S, 50-56, 25 L. 83, KESNER v. TRIGG. 

^^ 3 (TX, 603). Postnuptial contract sustained In equity. 
.^J^Proved in McBreen v. McBreen, 154 Mo. 330, 77 Am. St Rep. 
'^ % S. W. 465, holding husband has no curtesy in wife's land 
*^^tred after agreement to separate releasing each other from all 
^*^^al obligations, where deed excluded husband. 

^ ^- S. 56-61, 25 L. 91. PETERS v. BOWMAN. 
^^ 2 (IX, 604). Vendee cannot controvert vendor's title, 
approved in Edgar v. Golden, 36 Or. 453. 6() Pac. 3. excluding 
l>a*'ol evidence in foreclosure suit, to show when mortgage was 
*lo^ and also to show outstanding paramount title. 



98 U. S. 61-71 Notes on U. S. Reports. 190 

Distinguished in Savings & Tr. Ck). t. Bear Valley Irr. Co., 112 
Fed. 703, holding determination of priority between receiver's cer- 
tificates issued by order of court and mortgage lien proper in fore- 
closure suit; St. Lawrence Ck>. r. Holt, 51 W. Va. 379, 41 S. E. 
362, holding interest of adverse claimant to land finally adjudicated 
in decree dissolving injunction preventing sale until rights liti- 
gated. 

98 U. S. 61-71. 25 L. 93, UNITED STATES v. THROCKMORTON. 

Syl. 1 (IX, 604). Statute of Limitations does not bar government. 

Approved in King v. McAndrews, 111 Fed. 865, holding land de- 
partment having jurisdiction under act March 2, 1889, to determine 
adverse claims of homesteads and townsltes, claimant's patent 
issued not collaterally attackable. 

Syl. 2 (IX, 605). Litigation, same parties, same cause, disfavored. 

Approved in Bailey v. Willeford, 126 Fed. 806, refusing Federal 
jurisdiction to restrain judgment of State court not a ground of 
duress and perjury of prosecutrix, where defendant bad presented 
whole case before; De Weese v. Smith, 97 Fed. 313, holding direc- 
tion by comptroller of currency to receiver to collect assessment 
from stockholder of insolvent national bank prevents second as- 
sessment; Emerick v. Miller, 159 Ind. 328, 64 N. E. 32, holding 
insufficient answer by mortgagor to application for writ of assist- 
ance to enforce foreclosure where mortgagor alleges no action 
pending to question decree; Foss v. Whitehouse, 94 Me. 497, 48 
Atl. 112, holding taxpayer subjected to unlawful imprisonment 
having recovered in assumpsit costs of release cannot bring action 
of tort for same confinement; Maryland Steel Co. v. Marney, 91 
Md. 375, 376, 377, 46 Atl. 1081, 1082, refusing to set aside judgment 
obtained for personal injuries due to Incompetence of defendants 
employees, ground being conspiracy, defendant having opportunity 
to prove employee's competency. 

Syl. 3 (IX, 605). Equity setting aside judgment for fraud. 

Approved In In re Roukons, 128 Fed. 616, holding false schedule 
or false oath to schedule of bankrupt constitutes ground for setting 
aside composition for fraud where creditor did not know until con- 
firmation; Kirk V. United States, 124 Fed. 341, restraining execution 
in New York on bail bond of nonresident defendant in Georgia 
court where no service made on defendant in Georgia; Hoi ton v. 
Davis, 108 Fed. 149, holding fraud to vitiate judgment must be such 
that without It the judgment would not have been rendered; Payne 
V. Payne, 97 Md. 684, 55 Atl. 370, holding demurrable bill to set 
aside decree ratifying sale of complainant's interest in firm alleging 
fraud in the appraisement; Brigham v. Petitioner, 176 Mass. 22(J, 
57 N. E. 330, refusing to set aside final decree of divorce where 



I?l 



Kotes on U. S. Reports, 



98 C. S. 61-71 



plaintiff alleges fraud and duress where Bbe delayed two years after 
flliowing judgment by defnult. 

Distinguished in Unitetl States T. Beebe. 180 U. 8. 349. 45 L. 568, 
21 Sup. CI. 373, holding compromise judgment Id favor of United 
Stjiies not set s«lde for frnud where no representation made as to 
merit ot suit, only to solveney of party; Sautord v. White, 108 Fed. 
92!>, holding Cnlted States courts have no power to review pro- 
ceedings on motion filed at subsequent term; Deweese v. Smith, 
lOfi Fed. 446, holding action of comptroller of currency In determiU' 
Ing amonnt of assessment on national boDii stockholders reviewable 
only cQ clear proof of fraud or mlstate. 
Syl, 4 ax, 607), Eitrlnslc or collsterol fraud required. 
Approved In Pittsburg, etc., Co. v. Keokuk, etc., Co., 107 Fed. 786. 
holding insufficient bill of review on ground of fraud where bill 
did Dot show why facts might not liave Deen discovered at begin- 
ning ot litigation; Curtis v. Schell, 12fl Cal. 21ii, TO Am. St. Rep. 112. 
W Pac. 053, holding' equity will relieve against fraud by which 
Pfoliaie Court allowed for family support without knowledge of 
morigageB on wife's Interest given for advances; Pepin t. Lautman. 
2S Ind. App, vs. U2 N, E. 61. holding defeated party entitled to no 
iieiv trial on i^'ound of fraud due to perjury where no request for 
watinoance or new trial made: Hamilton v. McLean, 169 Mo. 70. 71'. 
^ S. W, 935, holding Judgment declaring deed valid not sei aside 
™ K>1eadlnga oli;irglng judgment obtained by fraud where fraud was 
•n «3eed. not In Judgment; Barber Asphalt Co. t. Keene, 99 Mo. App. 
5^. 74 S, W. S74, holding objection as to apportion ment ot cost of 
'^*^^t improvement not raised In action on tax bill for assessment 
■^-•^ not be raised eollniernlly In another action. 

*^ latlngoished In Spokane, etc., Slin. Co. v. Pearson, 28 Wash. 
'2^. G8 Pac. 167, holding fraud of stockholder In raising warrant for 
**>«rk done and representing work more difficult on grouud for new 
trt^] vfhcre corporation could have found these facta. 

^jL 5 (IX. -JOS). Land grant decision, validity not retried. 
■Approved in James v. Germania I. Co., 107 Fed. 001, holding suit 
to Set aside land department's patent on ground of mistake in flnd- 
'De's must show mistake from the evidence before department and 
IttOuplng fraud. 

^yi. 6 (IX, 609). Attorney -general sues to set aside patents. 

-Approved In State v. Seattle Gas Co., 28 Wash. 507, 513, 514, 68 

^*<^- 852, 70 Pac. 115, holding under BalUnger's Wash, Anno. Codes 

Stat., i 5781, providing quo warranto Information brought by 

'^^Uiity prosecuting attorney, attorney -general not proper person ta 

^*itule proceedings. 

(is. 601). Mlacellaneous. 




1 



» 



L 



03 U. S. 72-104 Notes on U. S. ReporU. 102 

Approved In Prinz t. Wlber, 126 Ala. 150. 28 So. II. refuBlng 
motion to eipunge judgment entry because of alleged wrongful 
altoraUon of approved minutes by clerk after adJoumineDt; Till- 
man T, Peoples, 2S Tex, Civ. 240, CT S. W. 203, holding praintlff 
cannot recover for defendaat's recovering Judgment by fraud where 
plaintiff made no effort to take testimony proving fraud. 
OS U. S. 72-75. 25 L. 51, WILLIAMS v. HAGOOD. 

Syl. 1 (IX, BOS). Constitutionality of etatute not tested abstractly. 

Approved In State v. Lambert, 52 W. Va. 2M, 43 S. E, 177, dis- 
mlsaing writ of error to judgment for mandamus commandlDg entry 
of plaintiff's name as candidate, where election bas been held. 
09 U. S. 75-79. Not cited. 
08 U. S, 79-80. 25 L. 06, IVINSON t. BUTTON. 

SyL 1 (IX, IJ09). Equity may correct written Inatrumenta. 

Distinguished in Hill v. Northern Pac. Ry. Co., 113 Fed. 917. refus- 
ing avoidance of release to railroad of claim for death of husband 
and father for fraud where action at law and consideration not 
returned. 
9S D. S. 85-08, 25 L. 52, 8NELL v. INSDBANCB CO. 

Syl. 1 {IX, 010). Company's prompt disaffirmance of policy re- 
leasing. 

Approved In Lawrence County Bank v. Arndt. 69 Ark. 414, 65 S. 
W. 1(^5, holding parol evidence admissible to show defendant's 
signature to note Intended by parties to bind corporation for whose 
debt note given. 

Distinguished In Lawrence County Banb v. Amdt, .69 Ark. 420, 
67 S. W. 1057, admitting parol evidence to show defendant's signa- 
ture as president meant to bind corporation for whose debt given. 

Syl. 2 |IX, 611). No reformation for mistake of law. 

Approved In Curtis v. Albee, 167 N. T. 3C5, 60 N. B. 661, re- 
rusiug reformation assignment of claim due Insolvent where agree- 
ment represented contract of parties, neither knowing claims par- 
tially paid. 

Syl. 3 (IX, 611). Mistake a ground for equitable relief, 

DisUngulshed In Chicago, etc.. Hy. v. Green, 114 Fed. 677, refu»- 
Ing to set aside for Inadequacy release for personal loJurleB by 
Injured employee of railroad with full knowledge of facts, but cor- 
recting signature on check. 
98 U. 8. 98-104, 25 L. 112. DAVIESS CO, v. HUIDEKOPER. 

Syl. 1 (IX, Oil). County estopped to question railroad organi- 

Approved In Board of Comra. t. Coler, 113 Fed. 724, holding 



1 



Kotea on U. S. Reports. 



3 D. B. 104-125 



county estopped to denjr necessity of bonds isaned to baild road, 
■od Interest of people therein, wbere bonds recite existence or 
thesB conditions; Debnam v. Chittj, 131 N. C. 879. 43 S. B. 10, 
lioldiDg township not estopped to deny leg-allty by payment of 
Interest where authorizing statute void for failure to record votes 



08 V. 8. 104-117. Not cited. 

88 U. B. llS-122, 26 L. 88. WIRTH v. BRANSON. 

Syl. 1 (IX, 612). Subsequent location Told unless prior vacated. 

Distin^ished In Cosmos Exploration Co. v. Gray Eagle, etc., 
Co., 112 Fed. 11, boldlng land not open to scttlomenl. under 30 
Stat. 36, In lieu of relinquished forest reserve land where defend- 
ant ^as engaged in exploring for oil. 

Syl- 2 (IX. 614). FulQIling patent requirements gives equitable 

uae. 

Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed. 578, 
apholding rights of entrynian on unoccupied land, under 30 Stat. 
36, In lieu of forest reserre land where no oil explored and selec- 
Uon complete; Purcell v. Lang, 108 Iowa, 202, 78 N. W. 1006, up- 
holiUng wife's dower rights In land pre-empted by husband and 
paid lor by land warrant before patent not defeated by hua- 
'»and*g alienation; Slattery v. Hellperln. 110 La. 07. 34 So. 144, 
"oiaing memorandum' Indorsed on patent Issued by State, re- 
citing " location erroneous," " warrant returned to locator," not 
sit^f.[gg( proof by tax-sale purchaser of recited facts; Jolinson v. 
*''aetBcli, 170 Mo. 470, 75 S. W. 1010, holding for defendant, as- 
wtn^p of land warrant locating claim and delivering warrant as 
'*^»*Ired on receipt of certificate where delivery cot reported and 
Mt^tit Issued to plaintiff; Murray v. Montana L,. etc., M. Co., 25 
^**>t. 22, 63 Pac. 721. holding admiaalble In ejectment evidence 
*3ef end ant's prior claim accruing before iBsuance of patent 
'* Kilalntlff; Bash v. Cascade Mln. Co.. 29 Wash. 53 CO, Pac. 
• holding nonlsBuance of patent to grantee ot njiulng claim. 
^'^'l-ng therefor and holding government certificate, no defense 
^ erantee refuaing deed; State ex rel. BlUlnga v, Bridges, 2-J 
""^•^h. 65. 79 Am. 6t Rep. 915, 60 Pac. 61. holding one complying 
^^~'^>x Wash. Laws 1805, IE TO. 71, for purchase of tide landa, unaf- 
**^ted by act March 16. 1897, repealing former. See 76 Am. St. 
^'t*- 480, note. 
^ ^. S. 123-125, 2S L. 75, NATIONAL BANK ▼. GRAND LODGE. 
^31- 1 ax. 614). Suit for assets held by promisor. 
-^^pproved in Johns v. Wilson. 180 U. S. 446, 45 L. 616, 21 Sup. 
^^~~ 447. holding grantee assuming mortgage liable for deDciency 
°^ Bult by mortgagee Id own name; Barker r. Pullman's Palace Cu* 
Vol. H — la 




08 U. S. 126-140 Notes on U. S. Reporti. 194 

Co., 124 Fed. 566, 567, holding enforceable by creditors agreement 
of one corporation taking assets of another to assume its liabilities. 

Syl. 2 (IX, 614). Beneficiary suing on contract 

Distinguished in HaU v. Alford, 105 Ky. 666, 49 6. W. 445, 
holding enforcea'ble oral promise by owner to see subcontractors 
paid for work dohe, such being for promisor's benefit, so no 
suretyship. 

SyL 4 (IX, 615). Privity necessary for bondholder's suit 
Approved in Goodyear Shoe Machinery Co. v. Dancel, 119 Fed. 
695, holding in action at law assignee of instalment contract, 
assuming assignor's liability, not liable because not privy to contract. 
Distinguished in Johns v. Wilson, 180 U. S. 447, 45 L. 617, 21 
Sup. Ct 447, holding grantee, assuming mortgage, personally liable 
for deficiency in action by mortgagee in own name; Central Elec- 
tric Co. V. Sprague Electric Co., 120 Fed. 926, holding in lllin<^ 
corporation liable to creditors of second corporation whose assets 
first corporation purchased, contracting also to pay debts; Fair- 
field V. Rural, etc.. School Dists., Ill Fed. 110, holding suit on 
bonds of original school district, since divided into new districts, 
properly brought In equity against latter, no privity existing; 
Everett v. Independent School Dist, 109 Fed. 701, holding bond- 
holder's suit to enforce payment of school-district bonds issoed 
in excess of authorized amount properly brought in equity; 
Whicker v. Hushaw, 159 Ind. 3, 64 N. E. 461, -upholding mortgagee's 
right on written agreement of mortgagor's grantee in contract oC 
sale to assume mortgage. 

(IX, 614). Miscellaneous. 

Approved In Adams v. Shirk, 104 Fed. 61, holding unavailing 
objection that action against assignee of lease for rent should be 
in equity where objection not taken till motion in arrest 

98 U. S. 120-140, 25 L. 77. POWDER CO. v. POWDER WORK& 

Syl. 2 (IX, 616). Reissued patent must be same patent 

Approved in Societe Fabriques, etc. v. Lueders, 105 Fed. 632, 
holding bad for duplicity plea to bill for infringement, alleging 
that patent was void as identical with prior patent, and alleging 
abandonment 

Syl. 3 (IX, 617). Patentee may amend on reissue. 

Approved in Kirchberger v. American, etc.. Burner Co., 128 Fed. 
607. holding inventor of tip for acetylene gas burners may Itwiend 
original specification before other inventors complete, to include 
claims covering process; Crown Cork, etc., Co. v. Aluminum, etc, 
Co., 108 Fed. 855, upholding reissue of patent in bottle-stopp^, 
with additional element enlarging original, but not changing 
terlally. 



19S Notes on U. S. Reporti. 08 U. a 140-188 

W XT. S. 140-14:2. Not cited, 

88 XT. S. 142-144, 25 L. 65, DUMONT T. UNITED STATBa 

SyL 4 ax, 618). Importer absolutely liable for duUes. 

^^pproved in United States v. National Surety Co., 112 Fed. 
holding surety obligation on distiller's annual bond given. 
Rev. Stat, i 3260, for faithful compliance with law, not 
esrtendlng to taxes on liquors in bonded warehouse. 

. S. 145-169, 25 L. 244, REYNOLDS ▼. UNITED STATES. 

1 (IX, 618). State law goTernlng impaneling of Jurors. 

^^X>proyed in Downes ▼, Bidwell, 182 U. S. 260, 45 L. 1099, 21 

»!>- Ct 780, holding article 1, section 8, United States Constitution, 

uniformity of duties '* throughout United States,'' not 

plicable to territory of Porto Rico; Jackson v. United States, 

:Fed. 477, 479, holding Oregon laws govern jury trial in Alaska. 

<^e refusal to discharge grand Juror for bias proper, such not 

disqualification by Hill's Anno. Laws, H 1233, 1234. 

X>lstingulshed in Greer t. Richards, 8 Ariz. 231, 233, 32 Pac. 

holding, under Comp. Laws 1877, §§ 2547, 2555, following 

«ral practice, counsel fees not recoverable as damages in suit 

-Arizona injunction bond. 

1 2 (IX, 619). Impartial Jury guaranteed in territorial courts. 

pproved in Downes v. Bidwell, 182 U. S. 293, 45 L. 1109, 21 
• Ct 789, holding provisions of U. S. Const, art. 1, % 8, requiring 
'•^^^■^i:rormity of duties " throughout the United States," inappiicable 
^•erritory of Porto Rico. 

SyL 4 (IX, 620). Juror's competency question for trial court 

-A^pproved in Dolan v. United States, 116 Fed. 582. upholding dls- 

^^O'^ance of challenge for cause where evidence tended to show 

^^^Itty to try case impartially, disregarding opinion; Missouri, etc., 

^y^ Co. v. EUiott, 102 Fed." 101, upholding refusal challenge of three 

Im^ors for cause where no relation to parties, or bias or prejudice 

"^^^'^n, where they declared ability to try impartially; Territory of 

^^^ona V. Davis, 2 Ariz. 63, 10 Pac. 361, upholding retention of 

^^^^'c^r whose opinion in murder case was not unalterable aud was 

®^^^e impression based on rumors and newspaper stories; Hardin v. 

^^^'te. 66 Ark. 60, 48 S. W. 906, upholding disallowance of challenge 

^'^ opinion of defendant's guilt, formed from rumor and newspapers, 

'^^^re Juror declared ability to disregard such opinions; Mono 

^^'^nty v. Flanigan, 130 Cal. 108, 62 Pac. 293, upholding disallow- 

^'^^^^ of challenge for bias In civil suit for license tax where no 

*^^^Xial bias shown. 

^yL 7 (IX, 621). Accused entitled to presence of witnesses. 
-Approved in Motes v. United States, 178 U. S. 471, 44 L. 1155, 20 
^^^ Ct 998^ holding right under U. S. Const, Sixth Amendment 



08 U. S. li3U--M'2 Notes on U. 8, Reports. 



108 



of accused to be confronted by adTerse wltoeBsea violated by ad- 
mitting deposition of witness whom Bccosed never detained. 

8yl. 10 (IX, 622). Court mentlonlns peculiar nature of crime. 

Approved in United States v. Tenney, 2 Ariz. 139, 11 Pac. 478, 
■ustalnlng Instruction In polygaray case, where court criticized 
polygamous marriages severely, but made plain tlint proof requisiU* 
for conviction must convince beyond reasonable doubt. 

Byl. 11 {IX, 622). Correcting errors apparent on record. 

Approved In MurpLy v, Massachusetts, 177 V. S. 157. 44 L. 7J3. 
20 Sup. Ct. 640, upholding vacation of final Judgment void for 
Irregularity and entry of new sentenee In accord with statute; In 
I'e Graves, 117 Fed. 799, upholding recall of prisoner refused ad- 
mittance Into Detroit House Correction and Imposition of different 
sentence for Imprisonment elsewhere. 

(IX, G18). Miscellaneous. 

Approved in United States v. Tenney. 3 Ariz. 41, 8 Poc. 299. op- 
holding indictment under Edmunds' act, charging polygamy sub- 
stantially In language of statute, addition of charge of cohabltatiim 
after marriage being surplusage; In re De Loveaga'a Estate. 142 
Cal. 170. 75 Pac. 795, holding wlU recognizing Illegitimate son aU'l 
purporting to pa^s testator's property to such son not " public ac- 
knowledgment " necessary for adoption within Civ. Code Cal.. i 230; 
Commonwealth v. Pear, 183 Mass. 246, 66 N. E. 721. upholding ex- 
clualon of evidence offered to prove at what vaccination conaiated, 
such being matter of common knowledge. 
98 U. S. 109-176, 25 L. 88, SCHUYLER COUNTY v. THOMAS. 

Syl. 2 (IX, 623). County aid bonds. 

Approved In Board of Commissioners v. Travelers' iDa Co.. 128 
Fed, 822, holding N. C Const 18GS, art 2. E 14, reqolrlng acts 
authorizing county Indebtedness, not applicable to Invalidate county 
bonds Issued under prior law. 

98 U. S. 17S-179. 25 L. 238, ORVIS V. POWELL. 

Syl. 2 (IX. 623). Inverse alienation docti'Ine applied in IIHnola 
Approved In Diamond Flint Glass Co. v. Boyd, 30 Ind. App. 4S7, 

63 N. E. 480. holding In action to enforce vendM-'a lien, where laud 

Bubjdct to Incumbrance Is parceled out, part sold first must be 

applied first In payment. 

08 U. S. 179-186. Not cited. 

98 U. S. 187-202. 25 L. 116. STEWART v. SONNEBORN. 

Syl. 1 (IX. 625). Malice and no probable cause necessary. 

Distinguished in Davla v. Johnson, 101 Fed. 95(. holding allefra- 
tlon as to termination of prosecutiiH) not necessary complaint tor 




M 





J^^ Notes on U. S. Reports. 98 U. S. 203-239 

fa.h^e imprisonment where Issuance and execution oi warrant mall- 
^-■onsiy for coercive purpose alleged; McDonald t. Atlantic, etc., 
^^ £., 3 Ariz. 98, 21 Pac 339, holding possession of stolen coal 
J>xx>bab]e cause for believing plaintiff guilty of larceny. 

S^-L 4 (IX, G26). Malice Inferable where prol>able cause lacking. 

-c^^pproved In Richardson v. Dybedahl, 14 S. Dak. 132, 84 N. W. 
% holding In action for malicious prosecution for resisting officer 
tearing down plaintiff's fence, malice may l>e inferred from want 
X>robable cause. See notes, 93 Am. St. Rep. 458, 459. 

5 (IX, 626). Must aver failure of defendant's suit 

pproved In L. Buck! & Son Lumber Co. v. Atlantic L. Ck)., 121 
. 243, holding want of probable cause question for Jury in 
on for damages for wrongful and malicious attachment 

3'L 6 (IX, 626). Action failing no proof probable cause. 

pproved in Cohn v. Saidel, 71 N. H. 565, 53 Atl. 803, holding 

neous refusal to instruct that failure of prosecution does not 

bllsh want of probable cause; Swepson v. Davis, 109 Tenn. 107, 

W. 67, holding no action for malicious prosecution based on 

vSl action, in which plaintiff obtained final judgment in bill to 

m:^:^^ up partnership; Bekkeland v. Lyons, 96 Tex. 257, 72 S. W. 

w liolding acquittal in prosecution does not prove malice or negative 

^l^able cause. See 93 Am. St Rep. 460, note. 

1. 10 (IX, 627). 0>unsel fees not recoverable as damagea 

^i%^ pproved in In re Williams, 120 Fed. 36, holding no counsel fees 

c'^^^overable under bankruptcy act § 3e, requiring bond of petitioner 

^onKiitioned to pay costs where no bond ordered given; dissenting 

^Vimlon In L. Buckl & Son L. Oo. v. Fidelity, etc., Co., 109 Fed. 406, 

^^Jority allowing reasonable attorney's fees under Fla. Rev. Stat 

^^^^ I 1646, requiring attachment bonds conditioned to pay "all 

^^^ and damages from attachment. 

^ XT. 8. 203-217, 25 L. 97, SNYDER v. SICKLES. 

CXX, 628). Miscellaneous. 

-Approved in Teddlie v. McNeely, 104 La, 606, 29 So. 248, 249. sus- 
t^^Uing claim of defendant based upon grant from Spain over seventy 
5^aj8 earlier, confirmed later by (Congress as against plaintiff's land- 
o^ce certificate. 

^ V. S. 218-224. Not cited. 

^ U. S. 225-239. 25 L. 158, ANDREAE v. REDFIELD. 

Sjl 3 (IX, 629). Representations no estoppel to plead statute. 

Distinguished in Wells-Fargo. etc., Co. v. Enright 127 Cal. 678, 

00 Pac. 441, upholding contract In writing by which plaintiff agreed 

to refrain from suit to enforce stockholder's liability for six months, 

defendant not to plead statute; Holman v. Omalia Ry., etc., Co., 117 



98 U. S. 240-342 Notes cm U. S. Beporti. 198 

Iowa, 272, 00 N. W. 834, 9i Am. St. Rep. 294, holding railroad es- 
topped to plead statute where plaintiff in reliance upon assurance of 
company's officer In charge of negotiations delayed action. See 

95 Am. St Rep. 412, note. 

96 U. S. 240-260. Not cited. 

98 U. S. 266-308, 25 L. 124, BECKWITH ▼. BEAN. 

Syl. 1 (IX, 631). Facts admissible in mitigaticm of damages. 

Approved in Maher ▼. Wilson, 139 CaL 520, 73 Pac. 421, allowing 
nominal damages only under CaL Civ. Ck>de, i§ 3360, 3294, where 
discharged stevedore refusing to quit premises was arrested but not 
prosecuted, no oppression appearing. 

98 U. S. 308-315, 25 L. 108, LITTLE ROCK T. NATIONAL BANK. 

SyL 2 (IX, 633). Valid bonds replacing void notes binding. 

Approved in Houston & Texas Cent R. R. Co. v. Texas, 177 U. 8. 
93, 44 L. 686, 20 Sup. Ct 555, upholding payments actually received 
by State officers on illegal State treasury warrants. 

98 U. 8. 315-^1, 25 L.- 139, BLAKB v. HAWKINS. 

SyL 1 (IX, 633). Will Interpreted viewing surrounding circum- 
stances. 

Approved in Adams v. Cowen, 177 U. S. 476^ 44 L. 853, 20 Snpi. Ct. 
670, holding advances made l>efore and after making of will not de- 
ducted from share of recipients where will said such advances to be 
treated as gifts; Davies v. Davies, 109 Wis. 133, 85 N. W. 202, holding 
will of layman leaving property to wife in trust for child's education^ 
to transfer on attaining professi<Mial degree, means to give wife 
beneficial interest 

(IX, 633). Miscellaneous. 

Approved in Daniel v. Felt, 100 Fed. 729, holding grantees by deed 
of trust for them and children, with absolute power granting away 
by simple warranty deed, do not convey power. 

98 U. S. 332-334. Not cited. 

98 U. & 334-342, 25 L. 198, UNITED STATES v. BURLINGTON. 
8yL 1 (IX, 634). No distance limits from railway route. 

Approved in Hewitt v. Schultz, 180 U. S. 154, 45 L. 471, 21 Sup. 
Ct 315, upholding construction of land department of Northern 
Pacific land grant act of 1S64, that department not authorized to 
withdraw land therefrom on approval of line map. 

Distinguished in dissenting opinion in Hewitt v. Schultz, 180 
U. S. 165, 45 L. 475, 21 Sup. Ct 319, majority upholding land de- 
partment's construction that Northern Pacific land grant act 1864, 
not authorizing withdrawing land from allotment on approval of 
railway routes 



Notes on TJ. 8. Reports. 



( O. S. 3«-3G6 



5yl i {IX, 635). Uniform eiecutlve statutory construction 

-^ tJprsTed In United States t. Southern Pac. R. K, Co.. 98 Fed. 43, 
IioidJog under act March 2. 1896. purchasers in good faith of South- 
prn Pacific railroad lands are protected. 
OS XJ. S. 343-358, 25 L. 180, UNITED ST.\TES v. HALL. 

S^rl. 1 (IX, 8361. United States" power to protect pension. 
_-^^ Improved in Opinion of the Justices of the Senate, 175 Moss. 601, 
^~ I^, E. 676. holding legislature's right, on tiaals of public welfare, 
*****^ private adrantage to appropriate or authorize appropriation of 
'^"***»ey to widowB of officer-holders dying In office. 

^S jl, 2 (IX. 639). Congrew' power to punish — Pension monej. 
-^ pproved in United States v. Dietrich. 120 Fed. GTS, holding n* 
*-'*"* *;*3e8 against government not so defined by Congress, hence re- 
'^^^K^t of bribe by senator-elect not seated, not punishable under 
^*«^"%|". Stat, I 1781. See 87 Am. 8t Rep. 45, note. 
^^ ■». S. 359-366. 25 L. 185, RAILROAD CO. v. GEOnGIA. 

^^3l- 1 (IX, 636). Consolidating railroads form new corporation. 
-^^^ pproved in Winn v. Wabash R. R. Co.. 118 Fed, 58. flO. 63. holding 
^^^*»-l>ash railroad formed by consolidating Ohio, Illinola, Indiana, 
^■=*«:a Missouri lines, filing articles In all Slates, citlaen of Nflssonrl 
^^ to cause arising therein. See notes, 80 Am. SL Rep. 608, 609. 
^^■--*. 617. 618. 619. 634. 

^Sjl. 2 (IX, 637). Consolidated company loses constituents' tax 

^^^^^^WjptiOD. 

-Approved in Tazoo & M. V. R. R. Co. v. Adams, 180 U. S. 21, 45 

^^- -406. 21 Sup. Ct. 247, holding consolidation of exempted railroads 

'^^^^■.■-porting to leave one old company undisturbed is new grant of 

^«»K-porate franchises and taxable under Mlse, Const 1800, J 180; 

"E>^ITOsit Bank of Owensboro v. Daviess Co., etc.. 102 Ky. 187. 39 

^- "W. 1033. holding acceptance by banlts exempt from taxation ot 

^«;«3, Stat. 92, art 2, S 6, incorporating act February 14. 1856. re- 

^^^"■^■ing power to alter charters, waived prior exemption; dissenting 

otiJmioa in Minor v. Brie R. R.. 171 N. Y. 575, 64 N. B. 457, majority 

T>l3olding mlleage-booli act. Laws 1895, chap. 27. as applied to re- 

"'"e'anized corporations whose predeceeaors under Laws 1802 could 

<^barge specified fares. 

Sjl. 3 (IX, 638). State court's construction State law nonrevlew- 
able. 

Approved in Williams v. Stearns. 126 Fed. 213. holding statute 
*t Eliode Island dividing State Supreme Court Into divisions, de- 
•^lared constitutional by State Supreme Court, not reviewable In 
absence of Federal question. 



i 



88 U. S. 300-308 Notes on U. S. Reporti. 200 

96 U. S. 3G&-381. Not cited. 

98 U. S. 881-^398. 25 L. 225, UNITED STATES T. NEW ORLEANS. 

Syl. 1 (IX, 039). Legislature's taxing power may be delegated. 

Approved in Catgill v. Duffy. 123 Fed. 733, upholding under State 
statute, ordinance of New Yorl: changing common-law rule of per- 
sonal liability of master and servant; Mercantile Trust etc., Co. v. 
Collins Park, etc., R. R., 99 Fed. 820, holding municipal ordinance 
granting franchise to street railway where Ga. Const., art. 3, I 7, 
prevented legislative authorization of street railway without cor- 
porate consent, is State law; Baltimore v. Safe Deposit, etc.. Co., 

97 Md. 002. 55 Atl. 317, upholding Md. Acts 1902, p. 711, for assess- 
ment of corporate bonds or personalty not exempt, held by trustee, 
to equitable owner at latter's place of residence; Carson v. Brock- 
ton. 175 Mass. 245, 50 N. E. 2, upholding under Mass. Stat 1892, 
chap. 245, § 1, city ordinance authorizing ^8 per year sewer rate 
for un metered and 30 cents per 1.000 gallons metered; dissenting 
opinion in Grand County v. People. 10 Colo. App. 240, 0% Pac. 680, 
majority holding holder of county warrant reduced to judgment 
not entitled to mandamus under Colo. Gen. Stat, I 2816, without 
showing statutory limit not reached. 

Syl. 2 (IX, 039). Municipal taxing power. 

Approved in Ex parte Braun, 141 Cal. 209, 74 Pac. 782, upholding 
under Cal. Const, art 11, § 6, provision of city charter authorizing 
license taxes for revenue, such being a municipal affair. 

Syl. 3 (IX, 040). Authority to borrow implies taxing authority. 

Approved in United States v. Capdevielle. 118 Fed. 814, holding 
Louisiana drainage acts 1858. authorizing special assessments 
against New Orleans for drainage work, authorized levy of tax by 
city to meet such expenditure; Board of Corars. v. Coler, 113 Fed. 
724, upholding bonds issued by county in payment for stock sub- 
scribed to railroad where county held stock, taxes road, and paid 
interest on bonds; City of Cleveland v. United States, 111 Fed. 345, 
holding municipal corporation not empowered by Tenn. Acts 1898, 
I 184, to levy special tax to pay ordinary municipal expenses as 
water and light; State v. Mayor, etc., of City of Bristol, 109 Tenn. 
324, 70 S. W. 1033, holding Tenn. Acts 1887, chap. 88, authorizing 
city to issue bonds for municipal indebtedness impliedly conferred 
power to levy tax to pay principal and interest. 

Distinguished in Hiclu v. Cleveland, 100 Fed. 405, awarding man- 
damus against municipality authorized by State to issue bonds and 
levy taxes to pay same, to compel levy to pay Judgment 

Syl. 4 (IX, 041). Mandamus to compel tax levy. 

Approved in United States v. Saunders, 124 Fed. 128, awarding 
mandamus against city compelling payment of judgment on mu- 
nicipal bonds issued under Nebr. Comp. Stat 1901, where Iia« 



aoi Notes on U. S. Reports. 08 U. S. 39S-410 

bility WBM not limited to special tax levy; Thompson t. Ferris Irr. 
Dist, 116 Fed.. 770, holding mandamus proper remedy in United 
States Gircnit Court for collecting judgment against California 
irrigation district 

^ ^- 8. 89&-403. 26 L. 231, RAILROAD CO. v. GRANT. 
SyL 2 (IX, 642). Repeal without reservation affects pending cases. 

-Approved in Gwin v. United States, 184 U. S. G74, 46 L. 748, 22 

Sop. Ct 628, dismissing appeal from District Court touching Call- 

fornia land claim where no appeal taken before act July 1, 1864. 

^^^^yXtig appeals except those pending; Columbia Wire Co. v. Boyce. 

^ ^ed. 174, denying appeal for refusing preliminary injunction 

^*®^^ 'amendatory statute 189ft-1900, left out prior amendment 

(28 ^^g^ QQff^ granting appeal in such cases; Emblen v. Lincoln 

^^ci Co., 102 Fed. 562, holding act of Congress, 28 Stat. 599, con- 

^''^XiXig title of entryman, took litigation of such title then pending 

^*^^ jurisdiction of land department; United States v. Kelly, 97 

"eiti^ 461, -holding act June 27, 1898, excluding from concurrent 

Jnrt^^Ietion of Circuit and District Courts, officer's suits for salary, 

affe><^ted suits pending under act March, 1887. 

E>i«tinguished in Bird v. United States. 187 U. S. 125, 23 Sup. 
^^ ^^5, 47 li. 103, holding 31 Stat, at Large, 321, chap. 786, conferring 
j^^^^ral criminal jurisdiction ui>on Alaska District Court, not pro- 
^^X^ag for removal, applied to pending murder prosecution. 

S^L 3 (IX, 643). No vested right to appeal. 

-A-X)proved in Lake Erie, etc., R. R. Co. v. Watklns, 157 Ind. 606. 
^ ^^. E. 446, dismissing appeal for failure to conform to Bums' 
^"V-. Stat 1901, § 650, Indiana, requiring filing of transcript within 
*^^"t:^ days after filing bond. 

^ XJ. S. 403-410, 25 L. 206, BOOM CO. v. PATTERSON. 
^3rl. 2 (IX, 643). Federal Interference with right of eminent do- 

-A^pproved in Johnson v. Hunter, 127 Fed. 224, upholding Ark. Acts 
1^^>S, p. 88, No. 71, authorizing sale of nonresident's land for unpaid 
^^«s on four weeks' published notice. 

^yl. 3 (IX, 644). Courts determine whether conditions performed. 

-Approved in Charleston Nat. Gas Co. v. Lowe, 52 W. Va. 664. 
^ S. E. 411, upholding grant of franchise to supply Charleston 
^itJi natural gas permitting use of streets pursuant to chapter 42, 
^P^- Va. Code 1899. 

Syl. 4 (IX, 644). Eminent domain taking for public use. 

-Approved in Gano v. Minneapolis & St. L. R. R. Co.. 114 Iowa, 

■^^l, 87 N. W. 717, 89 Am. St. Rep. 390, upholding Iowa Code, § 2007, 

^^ulring railroads condemning land to pay owner reasonable 



M U. S. 403-410 Notes on U. S. Reports. 202 

coansel fees Incident to assessment of damages and appeal 
thereon. 
Syl. 5 (IX, 044). Courts cannot consider necessity for tLppn^iiMtlan., 

Approved In Postal TeL Gable Co. t. Oregon, etc, B. B., 114 Ved. 
789, upholding right of telegraph accepting conditions of ReT. Stat, 
§§ 5263, 5268, to construct line over railroad right of way, not In- 
terfering therewith; Savannah By. Co. v. Postal TeL Co., 115 6a. 
560, 42 S. £. 4, upholding Ga. Civ. Code, i§ 4657, 4686, and Acts 
18d8, p. 54, providing uniform method for condenmlng private 
property, but providing no special judicial tribunal to pass thereoo; 
Covington, etc.. Bridge Co. v. Magruder, 63 Ohio St 476, 59 N. B. 
218, holding bridge company authorized to construct bridlse over 
Ohio river with power to appropriate land therefor is sole Judge of 
quantum of estate required; Postal TeL Cable Co. v. O. S. L. By., 
23 UUh, 485, 90 Am. St Bep. 713, 65 Pac 739, holding telegraph 
company in good faith selecting course on railroad right of way 
not interfered with by courts. 

SyL 6 (IX, 645). Adaptation for designed use determining Taliie. 

Approved in Gage v. Judson, 111 Fed. 358, holding question of 
value largely in discretion of triors, hence award not set aside for 
considering value of land for particular kind of building. 

SyL 7 (IX, 645). Market value determines measure of damaigeB. 

Approved in United States v. Honolulu Plantation Co., 122 Fed. 
584, holding measure of damages, market value at time, not en- 
hanced by special value to defendant; Postal TeL Cable Co. t. 
Oregon, etc, B. B., 114 Fed. 790, holding telegraph company nsins 
railroad right of way under Bev. Stat, U 5263-5269. and Mont. Code 
Civ. Proc., not interfering therewith, pays nominal damages; Chicago, 
etc., B. B. Co. V. Curless, 27 Ind. App. 308, 60 N. E. 468, holding 
admissible to prove value of condemned agricultural land evidence 
of value for farming purposes with railroad built thereon; Allison t. 
Cocke, 112 Ky. 22C», 65 S. W. 346, awarding vendor In breadi of 
contract for sale of land difference between contract price and 
market value for suburban homes, purpose of purchase, plus costs 
of sale; Bichmond, etc., B. B. v. Chamblin, 100 Va. 405, 41 S. B. 751« 
holding measure of damage includes value of land for valuable 
usages, present and future of his injuries necessarily afTecting Iraai- 
ness on remainder as difficulty of approach; Seattle, etc. By. t. 
Boeder, 30 Wash. 263, 91 Am. St Bep. 878, 70 Pac 505, holding 
measure of damages on condemnation of land by railroad is present 
market value plus decrease if any in value of remaining land. 

SyL 8 (IX, 646). Appeal from commissioners* award, remoTable 
suit 

Approved in Postal TeL Cable Co. v. Southern By. Co., 122 Fed. 
157. 161, holding constitutional guaranty of trial by jury in 



Notes on U. 8. B^wrts. 96 U. S. 410-428 

at hw inapplicable to statutory proceedings for condemnation of 

ifgliti of way by telegraph company; Union Terminal By. Co. y. 

Oiica^ B. & Q. B. B. Co., 119 Fed. 213, holding suit by railroad 

iBda Ma Ber. Stat 1899, f 1272, for condemnation of land, 

a drfl suit under judiciary act 1887-88; Williams t. Crabb, 117 Fed. 

117, holding where State statute gives State equity courts jurisdic- 

tioB of probate contests. Circuit Court has concurrent jurisdiction; 

1b i« DeUifli4fl, 100 Fed. 579, holding proceeding to determine com- 

peaaitioii for prop^ty condemned by eminent domain a suit of 

cfvil nature within judiciary act 1887-88; Kirby y. Chicago, etc.. 

^ fi. Col, 106 Fed. 557, holding statutory proceeding determinatiYe 

of damages for condemnation of land suit in civil nature at law 

Within section 2, judiciary act 1887; dissenting opinion in Wahl v. 

^'nnm, 100 Fed. 703, 70i, majority holding contest of probate of 

^^tU not soft of cIyU nature in law or equity removable to Federal 

covrts under judiciary act 1888. 

IHstinguished in Wahl v. Frans, 100 Fed. 686, 687, holdhig contest 
<>^ probate of will not suit of ciril nature at law or in equity within 
J^idlciary act 1888. removable to Federal courts. 

(CX, 643). Miscdlaneous. 

Approved in United States v. Eisenbeis, 112 Fed. 197, upholdhig 
^^cderal jurisdiction over condemnation proceedings under act 
Ansust 1, 1888, leaving to State court decUion of title to land; 
Hyen T. Chicago & N. W. By. Co., 118 Iowa, 316, 91 N. W. 107a 
bidding award of commission of freeholders appointable under Iowa 
<^ode, f 1999, not judicial but after appeal under section 2009, to 
I^Katzict Court, becomes civil suit 

% U. 8. 410-425. Not cited. 

% n. 8. 425-^428, 25 L. 191, FOSTEB v. MOBA. 

^^L 1 (IX, 649). Ejectment — Federal courts consider no equi- 
^»^H« title. 

-Approved in Lockhart v. Johnson, 181 U. S. 529, 45 L. OSo, 21 

^'^^t. Ct 670, holding one having no legal title cannot maintain 

•te^itment for mining property on ground of conspiracy, defendant 

P'^^^^suring plaintltTs partner to default in work thereon; Highland. 

c^^'C^ Min. Co. V. Strickley, 116 Fed. 854, S55, holding plaintiff in 

^i^^otment not estopped by acquiescence in 'entry, construction, and 

lift^ of tramway on plaintiff's land; Daniel v. FeH, 100 Fed. 728. 

^''^^^ing trust deed to parents for them and children, with absolute 

P^'Wer of disposition, gives children interest, not transmitted by 

ci^^ple warranty deed of parents; Proctor v. San Francisco, 100 Fed. 

^X, holding one claiming adversely to pueblo, San Francisco, not 

Oitltled to benefit of Mexican grant proceedings of 1852. placing 

teid in trust for lotholders; City of Cleveland v. Bigelow, 98 Fed. 

^7, holding that plaintiff in ejectment suit to recover land alleged 



US U. S. 428-453 Notes on U. S. Reports. 204 

by defendant to bo part of street must recover on strength of own 
title, not on weakness of defendants. 

Distinguished in National Nickel Co. y. Nevada Nickel Syndicate, 
112 Fed. 4G, holding plaintiff in ejectment estopped where In fore- 
closure suit by defendant-mortgagor due notice of decree of sale 
given him but no complaint made or appeal taken therefrom; 
Kelso ▼. Norton, 65 Kan. 787, 70 Pac. 899, 93 Am. St. Rep. 312, hold- 
ing under Kansas procedure mortgagor surrendering possession to 
purchaser at void foreclosure sale, and heirs, estopped to bring 
ejectment until debt paid. 

98 U. S. 428-432. Not cited. 

98 U. S. 433-439, 25 L. 209, CARR v. UNITED STATES. 

SyL 3 (IX, 651). Government not suable except when consenting. 

Approved in Sheriff v. Turner, 119 Fed. 785, refusing injunction 
against army officer restraining construction of power over govern- 
ment right of way: Bowker v. United States, 105 Fed. 399, refusing 
cross-libel in admiralty suit alleging fault of government ressel 
In collision. 

Distinguished in United States v. American Surety Co., 110 Fed. 
914, postponing motion to restrain government suit until claims 
against surety be adjusted where immediate action not required. 

Syl. 4 (IX, 651). United States seeking must do equity. 

Approved in United States v. Stlnson, 125 Fed. 910, holding 
government estopped to question patents issued forty years before 
where six of fourteen entrymen were dead and evidence touching 
settlement incbnclusive. 

98 U. S. 440^47, 25 L. 168, THE ABBOTSFORD. 

Syl. 2 (IX, 652). Subsequent statutes adopting words' Judicial 
interpretation. 

Approved in Board of Comrs. of Monroe Co. v. Conner, 155 Ind. 
496, 58 N. E. 832, holding no injunction granted to question legality 
of election under Burns\ Supp. Rev. Stat. Ind. 1897, § 6924, 
authorizing road-building commissioners having reviewing power; 
Daniel v. Simms, 49 W. Va. 568, 39 S. E. 695, holding ballot under 
W. Ya. C.ode, chap. 3, § 34, consists of one of columns of ballot sheet 
altered to suit voter's choice. 

98 U. S. 447-450. Not cited. 

98 U. S. 450-453, 25 L. 193, UNITED STATES v. IRVINE. 

Syl. 2 (IX, 65i). Retaining pension money not continuous offense. 

Approved in State v. Langdon, 159 Ind. 379, 65 N. E. 2, holding 
offense of deserting wife without cause. Burns' Rev. Stat- Ind. 
1901, § 2254, committed when act done, and action for fine barred 
in two years. 



2(S ?roees on U. S. Rei>orta. BS U. S. 4S3-478 

KV.S. 453-182. 25 L. 240. JE.VNISON v. KIHK, 
BtL Z (IS, e»). Local mining customs goTernlog 1848-1866. 
Ipprored In dissentlDg opinion in Nortbmore v. Simmons. 97 Fed. 
3Sft 391, majority upliolding mining district regulation reqiilrlng 
•laWng of sliart wltbin ninety days as wltliln Uev. Slat, g 2324, 
aatborliiiig reipilatlona consistent wltb federal laws; Hill t. 
Unofmand. 2 Ariz. 358. 16 Fac, 2e8, boldlng riparian ownership of 
liBil aubjeet to prior appropriation of waier In San Pedro river. 
BSU. S. 403-170. 23 L. 253. MINING CO. v. TAHBET. 
S;L 2 (IS, 656). Clalmow-ner following dip beyond side lines. 
Approved In Empire Milling, etc.. Co. v. Tombstone, etc.. Co., 100 
Fed. 913. holding cohere apes of vein In own claim mlneowner not 
estopped, by contract to dig and account for ore mined on adjoining 
claim, to claim ownership. 
Sjl 3 lIX. 6501. Cross-location's end lines become side lines. 
Approved In Bunker Hill, etc., Co. v. Empire State-Idaho, etc., 
Co., 109 Fed, 541, holding locator overlapping prior claim, getting 
paient on such claim without oiiposiilon from prior claimant, en- 
titled to lateral rights as against such prior claimant; Coismopoll- 
tan Mln. Co. v. Foote, 101 Fed. 5-'l, 522, holding where claim 
mlautenly located across. Instead OF along vein, aide lines be- 
come Bide lines, and locator entitled to no extratateral rlglits; Em- 
pire Mill. etc.. Co. T. Tombstone, etc.. Co., 100 Fed. 911. holding 
apti of vein being In own laud mlneowner not estopped, by con- 
Inct to i\g and account for ore dug on adjoining hind, to cliiim 
ik: Parrot S.. etc., C. Co. v. HoinUe, 25 Mont. 144. 64 Pac. 323. 
1iol<llDg ptalntilT entitled to ore under his land where apex of vein 
situated In defendant's claim, but other vein Intersects side lines 
vt said claim. 

i8 n. e. 470-476, 25 L. 228, AMY v. DUBUQOB. 
Sj], 2 (IS, 668). Federal courts, undirected, follow State stntutes. 
Approved In Mather v. San Francisco, 115 Fed. 44, 40. holding 
anion on Interest coupons of municipal bonds issued, nnder Cal. 
Stat. 1874-76. p. 433. barred four years from detachment, under 
Code CIt. Ptoc. I 337. 
Syl. 3 (IS, 658). Action for Interest before principal matured. 
Approved In Independent School Dlst. v. Kew. Ill Fed. 4, hold- 
ing action upon Interest coupons between citizens of different 
States wltblD Federal jurisdiction. 
GjL 4 (IX, 659). Statute begins wben bond coupons mature. 
Approved In Reynolds v. Lyon Co.. 97 Fed. 157, holding actions 
lo Federal courts for Iowa, upon Interest coupons, governed by 
lova Statute of Limitations of ten years. 




I 



98 U. 8. 476-486 Notes on U. 8. Reports. 206 

08 U. S. 476-479, 25 L. 237. HARKNBSS ▼. HYDBL 

SyL 1 (IX, 659). 'Shoshone reservation excepted out of Idaho 
Territory. 

Distinguished in Territory t. Delinquent Tax List, 3 Ariz. 306, 
26 Pac. 311, holding where not expressly excluded Indian reser- 
vations become part of territory where situate, hence railroad built 
thereon taxable by territory. 

Syl. 3 (IX, 661). Special appearance not waiver of irregularities. 

Approved in Louden Mach. Co. v. American, etc, Iron Co., 127 
Fed. 1010, holding service on defendant Illinois corporation's presi- 
dent while in Iowa at plaintifTs place of business insufficient to 
give State court Jurisdiction; Waters v. Central Trust Co., 126 
Fed. 472, holding request, on special appearance of foreign cor- 
poration's ogent seeking removal of suit, for extension of time to 
plead construed as touching plea for removal; Central Grain & 
S. Exchange v. Board of Trade, 125 Fed. 469, holding objection 
to Jurisdiction not waived by corporation's appeal from temporary 
injunction issued during pendency of Jurisdictional question be- 
fore master in chancery; Scott v. Hoover, 99 Fed. 250, holding 
demurring to complaint for insufficiency waives objections, under 
1 Supp. Rev. Stat, p. 612, and Code Civ. Proc CaL, | 396, pro- 
viding suit in defendant's district or county; Great Western Coal 
Co. V. Chicago, etc., Ry., 98 Fed. 278, holding plaintiff ^roneously 
compelled to elect between counts of petition on contract does 
not waive exception by proceeding to trial on remanding count; 
Thompson v. Greer, 62 Kan. 524, 64 Pac 48, holding defendant's 
filing answer and cross-petition, asking affirmative relief, after 
motion to Jurisdiction overruled, prevents him from questioning 
such preliminary ruling; Trust Co. v. Norris, 8 Kan. App. 705, 54 
Pac. 284, holding pleading to merits after motion on special ap- 
pearance to dismiss attachment proceedings because service pub- 
lished overruled not waiver of irregularity; Deming Invest. Co. 
V. Ely, 21 Wash. 107, 57 Pac. 354, holding special appearance to 
quash return on summons by publication not made general by 
allegation that Jurisdiction in such suit not acquired by publication. 
See 94 Am. St. Rep. 536, note. 

Distinguished in Barnes v. W. U. Tel. Co., 120 Fed. 555, holding 
filing on one day of special appearance to deny Jurisdiction and 
allege improper service, and before settlement thereof demurring 
to merits, waives irregularities. 

98 U. S. 479-485, 25 L. 233, RAILROAD CO. v. VARNELL. 

Syl. 2 (IX, 6Q3), Exceptions must specify charge excepted to. 

Approved in Cass Co. v. Gibson, 107 Fed. 367, holding insufll- 
cient exception to charge where exception is general and extends 
to entire paragraph; Columbus Const. Co. v. Cnine Co., 101 Fed. 
56, 58, holding rule 10, Circuit Court Appeals, 90 F^ cxlv, re- 



^ Notes on U. S. Reports. 08 U. 8. 4S&-528 

QQlres exceptions to charge to state propositions of law excepted 
to with portion of charge deemed erroneous. 

* l^. S. 486^91, 25 L. 194, UNITED STATES v. THOMPSON. 

^l 1 (IX, 663). State statute inoperative against United States. 

Approved in United States ▼. Fidelity Trust Co., 121 Fed. 772. 

^^ng action by United States on bond of Indian agent not 

'^"^ by Washington Statute of Limitations; Pond ▼. United 

^^*H HI Fed. 996. holding Ck)de Civ. Proc. Cal., | 1592, requir- 

% presentation of claim against estate, if defendant dying while 

<<^n priding, does not bar actions by United States. See 93 Am. 

^ Bcp- n5, note. 

(^X G63). Mlscellaneoua. 

DistUm^TQished in Ireland y. Mackintosh. 22 Utah, 307, 61 Pac. 
901, bolting action on promissory note barred by four-year stat> 
ote, 2 C^mp. Laws Utah, 1888, | 3143, though before expiration 
^^»^^f mtL'jeuc statute -of 1897 passed. 

96 U. 8w ^1-^506. Not cited. 

96 U. a. 507-^13, 25 L. 171, REED v. McINTYRB. 

Syl- 2 (IX, 665). Assignee prevailing over attachment creditor. 

Apprx>Ted in In re Chase, 124 Fedw 758, allowing recovery by 

^'B^e^ of expenses of estate prior to filing bankruptcy petition 

where ^assignment was bona fide and not void for preference; 

B«*€«t:^r V. SuUivan, 2 Aria. 79, 80, 11 Pac 59, 60, upholding as- 

■^snmerkt for benefit of all creditors where no fraud shown, al- 

^^^^^'^^^^ creditors delayed one year before sale; Ketcham v. McNa- 

mara. "72 Conn. 712, 46 AtL 148, holding assignee in bankruptcy, 

under C^nn, Gen. Stat, chap. 52, not entitled to set aside fraudulent 

convey-^jQ^ made within sixty days prior to assignment. 

^ U. S^ 514-517, 25 L. 256, BRICK v. BRICK. 
^^ ^ ax, 666). Parol evidence admissible to show intent 
^PPrxfcyg^ in Auten v. City Electric St Ry., 104 Fed. 399, admit- 
^'^ P^-^^l proof to show deed absolute on face was executed and 
ac^oept^^.^ for purpose of holding land conveyed as security only. 

^^' ^^66.) MisceUaneous. 

App^-,,^^^ In Savings, etc, Soc. v. Davidson, 97 Fed. 717, hold- 
/*? ""^^^^tgagee or trustee cannot purchase outstanding title and 
^'^■^ tersely to mortgagor or cestui, latter may redeem. 

* ^- ^^ 617-528. 25 L. 174, THE TREVILLE v. SMALLS. 

^ ^ (IX, 667). Penalty for tax delinquency constitutional. 

^^^"'Oved In Jones v. Oemler, 110 Ga. 217, 35 S. E. 381. uphold- 
^^^_^- Acts 1889, § 16, declaring specified chart made by United 
^;eodetic survey conclusive evidence of oyster-bed location. 



98 U. S. 52&-646 Notes on U. S. Reports. 208 

98 U. S. 628-541, 25 L. 219, HOOPER v. ROBINSON. 

Syl. 1 (IX, 667). Policy " for whom may concern," good. 

Approved In Hagfin v. Scottish Union & Nat. Ins. Oo., 186 U. 8. 
427, 429, 433, 46 L. 1232, 1233, 1234, 22 Sup. Ct 864, 865, 866, hold- 
ing vendee of interest In tug Insured under policy " Insuring Peter 
Hagan for account of whom It may concern,*' protected against loss 
by policy; Virginia-Carolina, etc., Co. v. Sundry Ins. Co., 108 Fed. 
459, upholding company's rights under policy payable to C. or the 
company "as Interest may appear" where C. regularly assigned 
insured property before loss occurred; Hagan v. Scottish Union, 
etc., Ins. Co., 98 Fed. 130, upholding right of assignee of part in- 
terest in boat to recover under Insurance policy obtained by as- 
signor, " for account of whom it may concern." 

Syl. 5 (IX, 668). Contingent interest in property insurable. 

Approved in Doyle v. American Fire Ins. Co., 181 Mass. 143, 63 
N. E. 395, holding under Mass. Pub. Stat, chap. 124, securing hus- 
band's right to curtesy in wife's land, husband has insurable In- 
terest in buildings on her land. 

Syl. 7 (IX, 669). Underwriter's laches In notifying agent bar. 

« 

Approved in Hardy v. American Express Co., 182 Mass. 831, 65 
N. E. 376, holding unreasonable delay by consignee In notifying 
carrier of damage to goods relieves latter, where proceeds remitted 
to consignor. 

98 U. S. 541-^46, 26 L. 196, RAILROAD CO. v. COMMISSIONERS. 

Syji. 1 (IX, 669). Voluntary payment taxes not recoverable. 

Approved in Chesebrough v. United States, 192 U. S. 260, 24 
Sup. Ct 264, holding written application to internal revenue com- 
missioner to refund amount voluntarily paid for revenue stamps 
not equivalent to appeal within U. S. Rev. Stat, §§ 3226-3228; 
United States v. Edmonston, 181 U. S. 509, 45 L. 976, 21 Sup. Ct 
722, holding voluntary payment by mistake of $2.50 per acre for 
public lands instead of $J..25 set by act June 15, 1880, In absence 
of fraud not recoverable; Christie St. Comm. Co. v. United States, 
126 Fed. 995, denying recovery of alleged illegal revenue tax under 
Rev. Stat, § 3226, where plaintiff was not coerced and delayed suit 
beyond six months provided by statute; Otis v. People, 196 IlL 646, 
63 N. E. 1054, refusing set-off by taxpayer, when sued by city for 
delinquent taxes, of tax voluntarily paid with knowledge of Itii 
invalidity far exceeding constitutional limit of indebtedness; New 
Orleans, etc., R. R. Co. v. Louisiana Const, etc., Co., 109 La. 28, 
94 Am. St. Rep. 404, 33 So. 55, 56, holding payment of wharfage 
charges under protest without duress not recoverable; Fuseller t. 
St Landry Parish, 107 La. 226, 31 So. 680, holding liquor license 
levied under parish ordinance not recoverable where voluntarily 



M Notes on D. S. Reports. 08 U. S. 546-550 

fid. ihongh ordinance not regularly passed: Carton v. CommlB- 
«'oDers, 10 Wyo. 438. C9 Pac. 1018, holding voluntary payment of 
''iwp tax not recoverable where plaintiff could have given twnd 
and litigated matter under Wyo. Eev. Stat 18ST, f 3847. See 9* 
^- St Rep. 410. note. 
■* ^- 8. 548-555. Not cited. 

^ ^'- S. 555-559. 2S L. 212. BARNET T. NATIONAL BANK. 

*yJ. 2 (IS. 671). Where usury charged, only principal recoverable, 

^PHroved In Louisville Trust Co, v. Kentucky Nat Banli, 103 Fed, 

**'■ *»clding action brought under Rev. Stat., i 5138, to recover 

doubly usurious Interest paid, barred within statutory period after 

P*" t»ayment of Indebtedness; Bates v. First Nat, Bank of Dniton, 

111 ^3 a. 758.36S. E. 040, holding answer setting up usurious Interest 

In PP'OmlsBory note sued on by national bant, alleging apedflc flgure 

in pr-oof, complete bar to recovery of interest; dissenting opinion In 

ClUaeiiH" Nat Bank v. Pormun, 111 Ky, 222, 63 S. W. 757, majority 

bollLxig payments of usurious interest to national bank are applied 

*° Principal and debtor cannot recover double Interest thereoQ 

under Rev. Stat. | 5198. 

Syi, 3 (IX. 672}. Penal auit for usury, Bole remedy, 

Approved In Central Stock Yards v, Louisville, etc,, R. R„ 112 

^•J- 826, dismissing Injunction as improper remedy to compel 

(Carrier to deliver stock shipped on Its line to connecting carrier, 

Where Interstate commerce act i 3, provides remedy; First Nat. 

Bank of Dalton v. McEntIre, 112 Ga. 235, 37 S. E. 382, holding 

Usurious note waiving homestead, void by Georgia statute, not void 

^hen made to national bank, penalty of Itev, Stat, £ 5108, for 

UsQry being exclusive; Boaettl v. Lozane, 96 Tex, 60, 70 S. W. 205. 

allowing under Tex. Rev. Stat, art. 3106, recovery of double In- 

'^'^at by plea In reconvention In suit on note. 

Srt 4 (IX, 672). Usury not available as Bct-oH, 

Approved In Tucker v, AlexandroIT, 183 D, S. 436, 40 L. 270, 22 

SuD. Ct 200. holding Russian vessel launched but unfinished la 

'^'issian ship of war within Russian treaty of 1832, authorizing 

*fw>8t of deserters therefrom; Haseltine v. Central Nat Bank, 183 

C. S. 136, 46 L. 120. 22 Sup. Ct 52, holding usurious Interest paid 

ti Xiatlona] bank on renewals of note cannot be set off against 

note since double interest remedy of Rev. Stat, { 5108, exclusive; 

Burns V. Beeves, 127 Ala. 134, 135, 28 So. 507. holding under Ala. 

'^»'3e 1896, I 3728. autliorlzing set-off of mutual debts, mortgage 

"^te not to be set off against penalty for nonrecordlng mortgage 

payments; Central Nat Bank v. Haseltine, 155 Mo. 64, 65. 55 S. W, 

1*17, holding O. S. Rev. Stat. S 519S, awarding double Interest against 

optional bank charging nsurlous rate, governs recovery there- 

Vol. II — U 




98 U. S. 559-630 Notes on U. 8. Reports. 210 

for but disallowing set-off in action by bank; Caponlgrl T. Altieri, 
165 N. Y. 259, 262, 59 N. E. 88, 89, holding under N. Y. Laws 1892, 
chap. 638, § 55, rendering IndiTidnal bankers charging nsmy liable 
for doable Interest, plaintiff not entitled to set off amount in actton 
on note; First Nat Bank of Morristown y. Hunter, 109 Tenn. 96, 
97, 70 S. W. 372, holding usury charged by national bank cannot be 
set up by cross-bill in action by bank on notes; Charleston Nat. 
Bank t. Bradford, 51 W. Va. 258, 41 S. E. 154, holding remedy of 
Rev. Stat., f 5198, being exclusive, usurious interest could not be 
set-off by defendant in suit by national bank on note. See 85 Am. 
St Rep. 537, note. 

Distinguished in McCreary y. First Nat Bank, 109 Tenn. 132, 70 
S. W. 822, holding action against national bank to recover usurloiia 
Interest is civil action within Acts 1877, chap. 97, and within 
Jurisdiction of State courts; Haseltine v. Central Nat Bank, 155 Ho. 
74, 56 S. W. 897, refusing recovery against national bank of double 
Interest for usury under Rev. Stat, f 5198, where plaintiff did not 
prove payment or tender of principaL 

(IX, 669). Miscellaneous. 

Approved in Crebbin t. Deloney, 70 Ark. 498, 69 S. W. 813, ap- 
plying Mo. Rev. Stat 1889, f 5976, disallowing recovery of usurloiu 
interest in suit in Arkansas on note payable in Missouri. 

98 U. S. 569-«65, 25 L. 222, RAILWAY CO. v. LOPTIN. 

Syl. 2 (IX, 674). Tax exemption not presumed. 

Approved in dissenting opinion in Citizens* Bank t. Parker, 192 
n. S. 87, 24 Sup. Ct 186, majority holding La. act January 31, 
1836, f 4, amending bank charter exempting capital stock from 
taxation, prevented license tax on business. 

98 U. S. 565-568. Not cited. 

98 U. S. 569-620, 25 L. 143, UNITED STATES T. UNION PACIFIC 
R. R. 

Syl. 2 (IX, 675). Bill authorized by Congress not multifarious. 

Approved In Benson v. Keller, 37 Or. 127, 60 Pac. 920, holding 
bill to cancel due bills for fraud not multifarious for joining de- 
fendant's receiving different bills as collateraL 

SyL 9 (IX, 676). Directors sue for supposed injuries. 

Appn)ved in Excelsior, etc., Co. v. Allen, 104 Fed. 556, holding 
In suit by licensee of patent, patentee properly joined though 
against his wilL 

98 U. S. 621-630. 25 L. 188, NATIONAL BANK v. MATTHEW& 
Syl. 1 (IX, 677). Ultra vires conveyance to corporation voidable. 
Approved Ui Julian v. Central Trust Co., 115 Fed. 962, iioldiog 



2U National Bank t. Matthews. 08 U. S. 021-630 

oeltber mortgagor n(Mr Judgment creditor can deny foreign corpora- 
tion's power to purchase and hold railway property in North 
Carolina; Sayings & Tr. Ck). ▼. Bear Valley Irr. Co., 112 Fed. 701, 
Jiolding corporation having executed mortgage of its property to 
tnst company and receiyed money thereon cannot deny mutual 
powers; Brown v. Schleier, 112 Fed. 581, holding receiver of national 
hank cannot avoid lease for ninety-nine years on ground of ultra 
▼IreB; Hanover Nat Bank v. First Nat Bank, 109 Ved, 426, holding 
hsnk receiving proceeds liable on notes indorsed by president where 
latter signed personally to evade Rev. Stat N. Y., S 5211, requiring 
wport of liabilities; Sanders v. Thornton, 97 Fed. 8«4, holding trustee 
of lands in Indiana Territory held for defendant cannot maintain 
suit for unlawful detainer against defendant because latter alien 
not enutled to hold; Tidwell v. Chiricahua Cattle Co. (Ariz). 53 
Ptc. 104, 195, holding defendant in ejectment by realty corpora- 
tion cannot question plain tifTs power to accept conveyance of gov- 
enunent lands; People's Bank v. Elxchange Bank, 116 Ga. 825, 94 
^ &t. Rep. 144, 43 S. B. 271, holding assignee of stockholder, to 
whom bank loaned more than statutory amount cannot demand 
^^^i^fer on books until amount of advance repaid to satisfy bank's 
Ben; Vermont Loan, etc., Co. v. Hoffman, 5 Idaho, 384, 95 Am. St. 
^- 189, 49 Pac. 316, holding trust company loaning money, taking 
'•mortgages therefor without paying license prescribed by Idaho Rev. 
^^^» f 6983, may foreclose; MUler v. Flemingsburg. etc., Co., 10J> 
^J- 47S, 59 s. W. 512, uphplding between parties purchase of land 
*V turxipike corporation passing fee; Hagerstown Mfg. Co. v. 
^^y, ^1 Md. 438, 46 AtL 967, holding trustee in trust deed of beno- 
^^ ^^sodation, suing to set asl^e purchase of lots and for recon- 
^eyano^ cannot avoid sale on ground of ultra vires; First Nat. 
^^ 0:r St Thomas v. Flath, 10 N. Dak. 286, 86 N. W. 809, holding 
on 'or^s^iQQUj.^ of mortgage note, indorsed to bank, mortgage-maker 
~^®^ question bank's power to hold mortgage; Tourtelot v. 
'^^^^ 9 N. Dak. 480, 84 N. W. 13, holding where national bank 
'^^^^^^ shares in milling company in payment of debt neither party 
could ^^lead uHra vires; Northern Pac. Ry. Co. v. Ely. 25 Wash. 39;^. 
'^'■-Ci!, 558, holding railroad having allowed individual to gain 

'^^^^^^^^ of right of way by adverse possession cannot deny such 
title. 

^*8tLi^g^g|jed in Buffalo, etc., Ins. Co. v. Third Nat. Bank of 
Buffat,:^^ 162 N. Y. 169, 56 N. E. 523, holding inoperative, under VA 
^^ XlO, against fair purchaser, by-law preventing transfer of 
""^^ ^^3^ stockholder indebted to bank, indebtedness creating lien. 

°y^ S (IX, 678). Executed ultra vires contract enforceable. 

Api^:ir^yed in Hallett v. New England, etc., Co., 105 Fed. 221, holCi- 
*^g ^^^=>^kholder whose stock innocently purchased in foreign corpo- 
rmtion. declared void under Pub. Stat New Hampshire, because sold 



98 U. S. 621-690 Notfra on U. S. Reports. 212 

below par, may recover money paid; Battey t. Eureka Bank, 02 
Kan. 392, 63 Pac. 439, upholding^ lien of State bank on 8to(^ of 
stockholder, liable to bank on debts not incurred on strength of such 
security; Tolerton, et)c., Co. v. Ferguson, 84 Minn. 501, 88 N. W, 21,* 
upholding right of foreign corporation to recover for merchandise 
sold within State to partnership, though corporation appointed 
no agent required by Minn. Laws 1895, chap. 332; George v. Somer- 
ville, 153 Mo. 13, 54 8. W. 492, upholding right of national bahk 
to enforce subsequently discovered trust deed given to secure note 
indorsed to it; First Nat Bank of Sutton v. Grosshans, 61 Nebr. 
581, 85 N. W. 545, foreclosing national bank's lien on realty taken 
as security for contemporaneous loan; Merchants' Nat Bank T. 
Wehrmann, 69 Ohio St. 171, 68 N. E. 1006, holding transfer to 
national bank of customer's shares in partnership made bank owner 
in severalty thereof and liable proportionately, but not as partner. 

Syl. 3 (IX, 680). Benefited party cannot question contract's 
validity. 

Approved in Schuyler Nat Bank v. Gadsden, 191 U. 8. 458, 459, 
24 Sup. Ct 129, holding where bank sues to foreclose mortgage 
given 10 bank president for bank, as collateral to note, defendant 
cannot question bank's power to hold land; Blodgett v. Lanyon Zinc 
Co., 120 Fed. 900, upholding lease executed in Kansas by sine 
corporation of New Jersey, although corporation had not complied 
with all Kansas laws regarding foreign corporations; Hanover Nat 
Bank v. First Nat Bank, 109 Fed. 426, holding bank recelvtog 
proceeds liable on notes indorsed by president personally in order 
to evade N. Y. Rev. Stat, § 5211, requiring report of bank's lia- 
bilities; Noah V. German- American BIdg. Assn., 31 Ind. App. 510, 
68 N. E. 617, holding in action by building association against mem- 
ber to foreclose mortgage, latter cannot set up ultra vires; Wyan- 
dotte Electric Light Go. v. City of Wyandotte, 124 Mich. 48, 82 
N. W. 823, holding city granting franchise to light company organ- 
ized under Pub. Acts Mich. 1885, § 232, cannot after nine years* 
recognition of franchise, recall It; City of Fergus Falls y. F^^ros 
Falls Hotel Co., 80 Minn. 171, 83 N. W. 56, allowing city to fore- 
close mortgage taken by officials to secure loan ivrongfully made 
to individual against purchasers with notice; Manchester St. By. 
V. Williams, 71 N. H. 321, 52 Atl. 466, holding where officer of cor- 
poration, under directions, purchased majority stock of other corpo- 
ration and thereafter sold part as own, purchaser took no rights 
under sale; Washington Life Ins. Co. v. Clason, 162 N. Y.-310, 56 
N. E. 757, upholding, under N. Y. Laws 1893, chap. 725, permitting 
Insurance companies* loans of less than 50 per cent, on unincum- 
bered realty, loan exceeding that ratio; Clarke V. Olson, 9 N. Dak. 
378, 83 N. W. 526, holding foreign corporation depositing securities 
in Wisconsin, to operate therein, cannot, on insolvency, when sued 



*^Z National Bank v. Matthews. d8 U. S. 621-630 

00 loch securities by receive, deny authority to msLke deposit; 
^int EvangeUcal, etc.. Church v. Arkle, 49 W. Va. 94, 38 S. B. 487. 
iioJdlng lessee of lot from church trustees cannot, when sued for 
unlawful detainer, question right of church under W. Va. Code, 
chap. 57, to hold land. 

8jl 4 ax, 683). Dissolution by State sole punisliment 

Approved in Scott v. Deweese, 181 U. S. 211, 45 L. 827, 21 Sup. 
Gt 588^ holding stockholder in national bank cannot escape lia- 
bility to credit(»« under Rev. Stat.. § 5151. on ground of issue in 
violatiofi of 24 Stat at Large, chap. 73; Blodgett v. Lanyon Zinc 
Co., 120 Fed. 896, upholding lease executed by New Jersey cor- 
poration operating in Kansas, although not having fully complied 
with Kansas laws; Brown v. Schleier, 118 Fed. 987, holding where 
national bank makes excessive investment in realty though ques- 
tionable by government, conveyance passes title to bank; Rlesterer 
^. Horton Land, etc, Co., 160 Mo. 159. 61 S. W. 243, holding national 
bank may enforce trust deed securing bonds purchased from debtor 
<^il)oratlon. though purchase violated Rev. Stat. § 5137. permitting 
mortgage for past debts; Texarkana. etc.. Ry. v. Texas, etc.. R. R., 
28 Tex, Civ. 553. 67 S. W. 526. holding no one but State can ques- 
tion building of spur track by railroad beyond charter authorization; 
Security Nat Bank v. St Croix Power Co.. 117 Wis. 218. 94 N. W. 
"'< holding plea of ultra vires unavailable in action by national 
bank as assignee of contract for construction work. 

distinguished In Buffalo, etc.. Ins. Co. v. Third Nat Bank of 
BnflTalo, 162 N. Y. 173, 174, 175, 176. 177, 178. 66 N. E. 524, 525. 526, 
upbolcling, under N. Y. Laws 1893, chap. 725, permitting insurance 
lonns of less than 60 per cent on unincumbered realty, loans ex- 
ceeding that rate. 

^^^» 677). Miscellaneous. 

^PX> roved in Black v. Bank of Westminster, 96 Md. 429, 64 Atl. 

' ^^Idlng in action by banking corporation against maker of note, 

Z^^^ c»nnot set up lack of bank's authority as defense; Wyandotte 

^ecti-lc Light Co. V. City of Wyandotte, 124 Mich. 49. 82 N. W. 

^^ folding city granting franchise to light company, organized 

^^e^^ Pub. Acts Mich. 1886, | 232. cannot recall franchise after 

■^ ^*^«ars recognizing itt 



XOIX UNITED STATES. 



09 U. a 1-10, 25 L. 309, WOLF v. STIX. 

Syl. 5 (IX, 686). Replevin — Claimant's debt, though contingent, 
provable. 

Approved In Cobb v. Overman, 109 Fed. 68, holding penal bond 
executed before bankruptcy, securing payment of life annuity, 
created fixed liability provable under bankruptcy act 1898. 

Distinguished in In re Mahler, 105 Fed. 431, holding rent accruing 
under lease after lessee declared bankrupt not provable under 
bankruptcy act 1898. 

Syl. 6 (IX« 686). Surety held, though principal discharged. 

Approved in In re Rosenthal, 108 Fed. 369, holding sureties on 
bond conditioned to pay any final Judgment recovered against 
principal released, where principal won attachment suit; Bernhardt 
V. Curtis, 100 La. 173, 33 So. 129, holding surety on note for future 
rent not discharged where, on bankruptcy of lessee, no rent was 
due, and lease not terminated. 

Distinguished in Bernhardt v. Curtis, 109 La. 180, 33 So. 125, 126, 
releasing sureties on notes to secure payment of future rent where 
lessee's bankruptcy terminated lease; Goyer Co. v. Jones, 79 Miss. 
256, 30 So. 652, holding surety on appeal bond conditioned to pay 
any Judgment, rendered not liable under bankruptcy act, | 16, where 
principal discharged by bankruptcy. 

99 U. S. 10-20, 25 L. 267, UNITED STATES v. FARDEN. 

SyL 1 (IX, 686). Department's acts presumed to be president's. 

Appiroved in In re Brodie, 128 Fed. 668, holding Army Regulatioiu, 
par. 940, promulgated by secretary of war, empowering court- 
martial to designate place of imprisonment, modified by Manual 
1895, not mentioning president; dissenting opinion in Motherwell 
V. United States, 107 Fed. 452, majority holding order of treasury 
department permitting entry, without payment of immigration tax, 
of men of Russian navy, not executive authority within treaty 1832, 
art 9. 

99 U. S. 20-25, 25 L. 314, HUSSEY v. SMITH. 
SyL 8 (IX, 687). De facto officer's acts bind parties. 

Approved in Herkimer v. Keeler, 100 Iowa, 638, 81 N. W. 179, 
holding Justice of peace-elect who has done nothing toward quaU* 
flying for office is not de facto Justice. 

[214] 



^ Notes on U. S. Reports. 99 U. S. 25-67 

» 17. S. 25-30, 25 L. 2^4, MILLS v. SCOTT. 

Sjl 3 (IX« 687). Limitations pending war. 

See 96 Am. St. Sep. 9SU note. 

Sjh 5 (IX* 689. Federal courts enforce State stockholder's 
Uability. 

Approved in Bnmswlck Terminal Ca ▼. National Bank^ 99 Fedw 
®^» applying twenty-year statute of Ga. Ck)de 1882, | 2916, in 
tction in Maryland to enforce liability of stockholder in Georgia 
^•'^king corporation. 

» IT- & 30-^ 25 L. 269. QOTNN T. UNITED STATES. 

^yl. 1 (IX, 689. Contractor entitled to contract price. 

-^PlHWYed in Son Printing & PnbUshing Assn. v. Moore, 183 
U- & G6i, 46 L. 378, 22 Sup. Ct. 249, upholding stipulation in char- 
^^ P^Ttj to pay 175,000 on failure to return yacht chartered as 
Uqai<i«ted damages. 

» IT. S. 35-47, 25 L. 296, UNITED STATES v. AMES. 

Syl. 10 (IX, 689). Court may recall fraudulently released yesseL 

^^^sttngoished in The Cleveland, 98 Fed. 632, holding vessel 
'^'^^^ecl on bond, after seizure on lib^ cannot be arrested again 
^ ^^ane cause where release not obtained by fraud. 

^1- Xl (IX, 690). No second action against Joint obligor. 

^PC^a-oved in McFarlane v. Kipp, 206 Pa. St 322, 55 AtL 988, 
"^^^^^XM^ where defendant recovered by cross-complaint against one 
^^^'^^i:^ in idaintiff firm he cannot later Join other iMUtner in suit 
'^^^^ othtfs on same cause. 

^^ 12 (IX, 690). Conclusions of law not admitted. 

^PC^^-oved in Green t. Indian Gold Min. Co., 120 Fed. 716, strik- 
"^ ^^^^^ as surplusage allegation of defendant's duty to furnish em- 
Pwy<?CLaa in mine reasonably safe place to work, such being implied 
^« ^^ther allegations. 

* ^- «. 4S-67, 25 L. 424, PLATT v. UNION PACIFIC R. R. (X). 

^ 8 (IX, 691). Surrounding circumstances construing con- 
c^nal acts. 

^P^^^roved in Chesapeake & Potomac TeL Co. v. Manning, 186 U. S. 
245, ^^ L. 1147, 22 Sup. Ct. 884, holding rates fixed for telephone 
^^'''I^^^.^es by Stat, at Large, 525, presumed to have been based after 



^^ '-^^-vesUgation. 

^^^ 9 ax, 691). Land grant 1862 inforentiaUy authorized 
"''"^r^ge; 

^^^^nguished in Brown v. Bank of Sumter, 55 S. C. 77, 32 S. E. 
' ^^Iding provision in deed to mortgaged premises given to 



99 U. S. 68-^6 Notes OD U. S. Reports. 216 

secure debt that prior mortgages be " left open to protect grantee 
against incumbrancers" do not prove deed mortgage. 

99 U. S. 68-71. Not cited. 

99 U. 8. 72-7a 25 L. 301. DOGGBTT v. RAILROAD CO. 

SyL 2 (IX, 692). Bondholders as parties plaintiff in receivor's suit. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 222, 223, hold- 
ing where receive intervened in foreclosure suit against corpon- 
tiou, and mortgagee won, decree bound receiver and all parties 
to suit in which he was appointed. 

Syl. 3 (IX, 692). Where statutory intent plain, no construction. 

Approved in dissenting opinion In Chauncey v. Dyke Bros., 119 
Fed. 17, holding, under Ark. Acts 1895, p. 217, | 3, mortgage given 
to secure money for buildings postponed to mechanic's lien for 
labor. 

99 U. S. 78, 79. Not cited. 

99 U. S. 80-85, 25 L. 407, BARROW v. HUNTON. 

Syl. 1 (IX, 693). No Federal review of irregularity. 

Approved in Phelps v. Mutual, etc., Assn., 112 Fed. 406, refusing 
to remove proceedings under which receiver was appointed in 
State court; Ward v. Congress Const. Co., 99 Fedw 603, holding 
motion for order restraining defendant from violating decree to 
which suit defendant was stranger was new suit removable to — 
Federal courts. 

Syl. 2 (IX, 694). Federal jurisdiction — Bills vacating fraudulent 
Judgment 

Distinguished in Phelps v. Mutual, etc., Assn., 112 Fed. 465, re- 
fusing to enjoin receiver of insurance company appointed by State 
court, under Rev. Stat., § 720, preventing injunction, except when 
authorized by bankruptcy law. 

(IX, 693). Miscellaneous. 

Approved in National Surety Co. v. State Bank, 120 Fed. 696, 
699, upholding, under Rev. Stat., § 720, power of Federal court 
to stay proceedings in State court on surety's bond where defend- 
ants, by failure of summons, were deprived of defense; Julian t. 
Central Trust Co., 115 Fed. 962, restraining sheriff from selling 
under execution from State court property of purchaser at cor- 
poration mortgage sale not party to judgment, sheriff beinj^ 
trespasser. 

99 U. 8. 86-96, 25 L. 363, HACKETT v. OTTAWA- 

Syl. 3 (IX, 695). Municipality estopped by recitals in bonds. 

Approved in Walte v. Santa Cruz, 184 U. S. 315, 46 L. 563, 22 Sup* 
Ct. 331t holding city estopped by recitals in refunding bonds tfaa'^ 



f 



217 Notes on U. S. Reports. 99 U. 8. 97-112 

tone was for antborixed outstanding indebtedness to claim contrary 

against bona fide purchasers; City of Defiance ▼. Schmidt, 123 Fed. 

7» S. enfordng municipal bonds anthoriaed by general statutes of 

"^tMte and purporting to be issued to build bridge, though used for 

diflTcrent unauthorized purpose; Fairfield y. Rural Independent 

^Sdiool District 116 Fed. SH, 844, holding school . district estopped 

^T recitals in bonds that such were issued pursuant to local chapter 

1^2. and conformable to Iowa laws; Perris Irr. Dist ▼. Thompson. 

116 Fed. 838, holding fact of purchase of bonds of Irrigation dis- 

^f^ct from president thereof not defeat purchaser's right unless with 

notice of inyalidity; Independent School Dist. ▼. Rew, 111 Fed. 9, 

^l<lliig township bound by recitals in bonds that issue was for 

''aJi^j indebtedness although debt secured was in fact beyond con- 

•^tuuonal amount: SuUivan Timber Co. ▼. City of Mobile, 110 Fed. 

^^^ liolding city having given plaintiff Implied license to build 

^'^^^r^ over its land and taxed wharf so built estopped to assert 

^tle jmd eject pUiintiff; Wesson v. Town of Mt. Vernon, 98 Fed. 

^^'^ S08, holding city issuing kunds citing compliance with statutes 

"^^ m.verring bonds for legal indebtedness cannot set up illegality of 

^^^•■tton of bonds as unauthorized; State v. Board of Comrs. of 

^'<^l^ita Ca. 82 Kan. 501, « Pac. 47. holding under Kan. Laws 1891. 

»« 163, authorizing refunding indebtedness outstanding over two 

county commissioners issuing bonds purporting to conform 

estopped to deny illegality; Jeff Davis County v. National 

of Paducah, 22 Tex. Civ. 160. 54 S. W. 40, holding county on 

issped to build courthouse and Jail though removal to new 

ty seat was illegal; dissenting opinion In City of Santa Cruz v. 

^te. 98 Fed. 394, 395, 396, 397, majority holding under Cal. Stat. 

p. 50, authorizing refunding city indebtedness after election. 

ioe to contain statement of indebtedness, bondholder bound by 

police. 

^distinguished in United States Trust Co. ▼. Village, etc., 104 Fed. 

'« holding purchasers of bonds Issued uL>der Rev. Stat. Ohio. 

• ^^03, requiring bonds to express on face purpose for and ordinance 

'^^'^^r which issued, chargeable with notice: Thompson v. Village of 

^^■c^^sta, 127 Mich. 528. 86 N. W. 1046. holding where plaintiff pur- 

^ ti ga.^d bonds from bank which had notice of falsity of recitals 

^-^e^x^eon, plaintiff not showing himself bona fide purchaser cannot 

^«<^OTer. 



. 8. 97-99. Not cited. 

^ XJ. 8. 100-112, 25 L. 366. GRAFTON v. CUMMINGS. 

L 1 (IX, 606). New Hampshire Statute Frauds construed, 
pproved in Arnold v. Garth. 106 Fed. 20. holding title bond to 
"* '^alid must state purchase price of land; Ogiesby Co. v. Williams 
^^^^"-» 112 Gil 361« 37 S. £. 373, holding memorandum of sale of 



09 U. 8. 112-149 Notes on U. S. Reports. 218 

cane sugar not mentioning plaintifTs name not satisfying Statute of 
Frauds: Allan t. Bemls. 120 Iowa, 180, 94 N. W. 5G2, holding 
memorandum acknowledging receipt of rent and adding tbat <m 
payment bj tenant of ^,000 on farm, notes to be returned. In- 
sufficient statement of contract; Bowers t. Glucksman, 68 N. J. L. 
148, 52 Atl. 218. holding insufficient contract for sale of land where 
memorandum thereof failed to disclose vendor; Catterlin t. Buah, 
39 Or. 501, 65 Pac. 1065, holding insufficient memorandum of sale of 
laud. " Price 16,000, G. pays note for $200, C. pays for cablegrams;** 
Saveiand v. Western Wis., etc., R. R.. 118 Wis. 272, 95 N. W. 132, 
refusing parol evidence to show moditicatiou of contract callini^ for 
kiln-run brick or if unsatisfactory, hard-burned sew^ brick, that 
latter should be furnished. 

Distinguished in Wright t. Smith, 105 Fed. 813, holding agree- 
ment by defendant to manage land conveyed to him without con- 
sideration and to divide rents and proceeds from sales not within 
Statute of Frauds: Auten v. City Electric, etc., Ry., 104 Fed. 
admitting parol evidence to show for whom land conveyed by 
to K. as '* trustee " was held. 

99 U. S. 112-119. Not cited. 

99 U. S. 119-129, 25 L. 370, CASE v. BEAUREGARD. 

Syl. 5 (IX, 698). Creditor's right to partnership property 
rivative. 

Approved in Merchants' Bank v. Thomas, 121 Fed. 310, holding 
as against all but creditors at time, partnership agreement to paj 
individual debt of partner valid though partnership bankmpt; 
In re Keller, 109 Fed. 121, requiring creditor of firm to surrender 
preferential payments received within forty days before banlgmptcy 
in order to prove against estate of partner succeeding to firm; 
Kincaid v. National Wall-Paper Co., 63 Kan. 291, 65 Pac. 248, allow- 
ing members of insolvent partnership in good faith to appropriatn 
own interest therein in payment of individual debts; Noyes ▼. IToas, 
23 Mont 437. 75 Am. St Rep. 547, 59 Pac. 371. holdhig sale bj 
mortgagee of partnership goods to protect security not In trand of 
creditors. 

99 U. S. 130-137, 23 L. 345. WILKERSON v. UTAH. 

SyL 2 (IX, 701). Punishment by shooting not crueL 

Approved in Territory v. Ketchum, 10 N. Mex. 720, 65 Pae. 170^ 
upholding N. Mex. Comp. Laws 1897, 8 1151, prescribing death 
penalty for assaults upon train with Intent to commit robbeiy, 

99 U. S. 138-149. Not cited. 



a» Notes on U. S. Reports. 99 U. S. 149-179 

» U. 8. 149-151, 25 L. 430, KLEIN v. NEW ORLEANS. 

87L 1 (IX, 702). Lands held by city not taxable. 

ApproTed In Mayor, etc, Council of Monroe v. Johnson, Sheriff, 

106 La. 352, JO So. 841, holding gravel-pit and machinery used by 

dtj in furnishing gravel for streets not subject to attachment 

^ credit(Hrs; Board of Directors t. Bodkin Bros., 108 Tenn. 706, 69 

& W. 271, holding funds of directors of levee district which has 

i^ceii declared a public corporation not attachable by garnishment. 

» tr. S. 152-161, 25 L. 348. UNITED STATES v. FORT SCOTT. 

SyL 1 (IX, 702). City municipal bonds bind city generally. 

'Approved hi United States v. Saunders, 124 Fed. 131, awarding 

mandamus against city compelling payment of Judgment on munic* 

IP^ bonds issued under Nebr. Comp. Stat 1901, 8 1282c, liabiUty 

"®t being limited to special levy; Board of Comrs. ▼. Gardiner Sav. 

^''^t^ 119 Fed. 46, holding municipal bonds issued under 89 Ohio 

^^8» I 66, authorizing county commissioners to improve streets and 

"«8CBB indebtedness to abutting property, enforceable at law;Vickrey 

^' Btcmx City, 115 Fed. 440, holding bonds issued under Iowa Acts, 

^ ^^^o. Assem., chap. 20, authorixing improvement of streets, asses- 

'^'Ut cost upon abutting property, enforceable against city. 

^ tJ. s. 161-16a Not cited. 

^ tJ. S. 168-179, 25 L. 883, GORDON v. GILFOIL. 
Byl. 8 (IX, 703). Same suit pending not good pica. 

Approved in Robinson ▼. Suburban Brick Co., 127 Fed. 807, 

holding pendency of suit to enjoin breach of covenant on sale of 

hrlc^ plant, not to engage in business within sphere, no bar to 

Federal suit; Knott v. Evening Post Ca, 124 Fed. 356, holding 

''^here Federal court appointed receiver for insolvent con»oration, 

Jurisdiction not surrendered to State court where action therein was 

only j^p inspection of books; Bunker Hill, etc., Co. v. Shoshone, etc.. 

^f X09 Fed. 0O8, holding insuflScient plea in Federal court of pend- 

^<^ of action in State for same purpose to quiet title to minin;; 

^^'•^^x^; WUson v. MilUken, 103 Ky. 167, 170. 44 S. W. 661. 662, G6n. 

^IdXsjg Federal court domestic as to State within district, hence 

^'^^Ing plea in abatement in action in State court of action pend- 

^ *ii Federal court; International, etc., Ry. v. Barton. 24 Tex. 

^^' :i23, 57 S. W. 292, holding Federal courts in State where held 

*** ^^weign courts, hence that plea of action pending in Federal 

^^'^^ not available in State court; dissenting opinion in Wilson v. 

•^^^^en. 103 Ky. 172, 180, 44 S. W. 664. majority holding Federal 

fj^**^*^ domestic as to State wherein held, hence allowing in action 

^^^te court of action pending in Federal court See notes, 82 
^^ «t Rep. 587, 590. 



99 U. S. 180-201 Notes on U. S. RejpGttM. 220 

Dlstinsruished in Colston v. Southern Bldg., etc., Assn., 00 Fed. 
908, holding Federal court will not entertain stockholder's suit for 
appointment of receiver while suit for same purpose i>endin|^ tii 
State court 

00 U. S. 180-183, 25 L. 451. BURT T. PANJAND. 

Syl. 1 (IX, 704). Error harmless where Juror not sitting. 

Approved in Missouri, etc.. Ry. t. Elliott, 102 Fed. 101, holdlnc 
where Juror challenged did not sit on Jury disallowance of chml- 
lenge for cause, though erroneous, harmless error. 

Syl. 3 (IX, 704). Prior i)os8es>sion prima facie evidences title. 

Approved in Lockhart v. Leeds. 10 N. Mex. 590, 63 Pac. 52, hold- 
ing where plaintiff's partner in possession defaulted in work neces- 
sary to hold mining claim, plaintiff had adequate remedy at law 
against defendant, hence bill dismissed. 

09 U. S. 183-191. Not cited. 

09 U. S. 191-201. 25 L. 319, EXPRESS CO. v.* RAILROAD CO. 

SyL 3 (IX, 705). Corporate contract presumed infra virea 
Approved in Ward v. Joslin, 105 Fed. 229, holding, under Kanwia 
decisions. Judgment against corporation which has received bene- 
fits of ultra vires contract not conclusive upon stockholder. 

Syl. 4 (IX, 705). Specific performance — Railroad receiver neces- 
sary party. 

Approved in Atlantic Trust Co. v. Dana. 128 Fed. 222, 223, hold- 
ing where receiver intervening in suit to foreclose mortgage against 
corporation and lost, decree bound receiver and all parties to suit 
in which he was appointed; Southern Mut. Bldg., etc., Assn. ▼. 
Andrews. 122 Ala. 601. 26 So. 113,. holding receiver of mortgagee 
loan association, holding mortgage, necessary party in suit by 
mortgagor to redeem. 

Syl. 6 (IX,^ 705). No specific performance of revocable contract 

Approved in Sullivan v. Milliken, 113 Fed. 101. holding insufficient 
agent's declaration, in action for commissions, that purchaser fonnd 
by plaintiff for defendant's land was given sixty days' option. 

Distinguished in St. Joseph Hydraulic Co. v. Globe Tissue Paper 
Co., 156 Ind. 609, 59 N. E. 997. 998. holding option of party to leasp, 
to cancel lease on six months' notice, no defense to specific per- 
formance of agreement to execute lease. 

(IX. 705). Miscellaneous. 

Approved in Howard v. Delgado & Ck)., 121 Fed. 31, upholding Uen 
of interveners upon sugar of defendant company now in receiver'! 
hands for advances made by former to defendant to be repaid from 
sugar. 



2a Notes on U. 8. Reports. 99 U. 8. 291-212 

99 U. 8L 291-^12. 25 Lw 431, GODDEN t. KIMHELLw 

97i 1 (IX, lOQ. State claims not favored in equity. 

ApproTed In Richardson t. OllTer, 105 Fed. 281, holding delay of 

^bree yean by depositor in bringing suit against receiver for de- 

AMJt received when Insolvoit no bar where no Intervening right 

<Qirered; Old Times Distillery Oo. v. Casey, etc, Swasey, 104 Ky. 

^ 'i7 & W. GU, refusing injunction against one of two distilling 

^oocernE to restrain use of brand whisky *' Kentucky Oomfort,*' 

lK»th having used name ten years; Frost v. Walls, 93 Me. 412, 45 AtL 

9K^ denying relief where heirs alleging fraud in apiK>intment of 

fi^Mian, and in defoidant's title, where such alleged fraud oc- 

«iu*^?d frcMu seven to eleven years after action. 

SyL 3 (IX, TOO). Equity following analogy of legal statute. 

-Approved in Kessler v. Ensley Ck>., 123 Fed. 563, holding delay 
of four years by stockholders to object to corporate disposition of 
Property to pay debts barred suit, though legal statute was ten 
J»rs: Higgins Oil Sc Fuel Oo. v. Snow. 113 Fed. 437, holding right 
^ ^ITe of deceased tenant In common *of oil lands to special re- 
**^€r to collect her third interest before expiration of Texas stai- 
*>^: Xash V. Ingalls. 101 Fed. 619. holding suit against receiver for 
^PPllcmtion of proceeds of materials furnished company toward 
nnt Under lease barred by delay of eighteen, statute being six 
y^^r^l Williamson v. Monroe, 101 Fed. 329, holding where plaintiff 
'''^ to share in railway construction contract concealed by defend- 
*^^ Hutu dissolution of partnership, defense of adequate legal 
''^'"*^<1^ lost by laches; Scott v. C:rouch, 24 Utah. 389, 67 Pac. 1071, 
Boidii^ locator's failure for fifteen years to claim ownership of 
'^'^^^^ claim barred action by administrator to declare patentee 
'"*^^^; Gay v. Havermaie, 27 Wash. 390. 67 Pac. 806. holding Judg- 
^f**^ creditor's action to set aside conveyance not barred by laches 
no Inequity appeared and three-year legal limitation not 



^^ 4 (IX^ 709). Reason for delay must be explained. 
. ^^^^roved in Boynton ▼. Haggart, 120 Fed. 830, holding interveners 
^''^^^"Cj by laches to avoid patent to land accruing thirty-two years 
^'^•^'^ legal statute being five years, and no excuse being shown; 



V. Alexander, 118 Fed. 887, holding right to enforce contract 

^ ^*<^tle of lands executed 1881, barred by laches where plaintiff 

r^-^^^ed until 1901, defendant having conveyed lands in 1886; De 

'^^^ V. Girard, 112 Fed. 96, holding suit by mortgagor's heirs to 

'''^"^'^r land barred by delay of forty years from execution of mort- 



thirty-five from foreclosure sale; Williamson ▼. Monroe, 101 
^^ ^30, holding in partner's suit to share railway construction con- 
^*^^ concealed by copartner until dissolution of partnership, de- 
of adequate legal remedy lost by laches; New York Security, 
C^o. T. LouisTllle^ etc, B. B., 97 Fed. 233, 234, refusing exchangs 



99 U. S. 213^338 Notes on U. S. Reports. 222 

of bonds of constituent companies for those of consolidation where 
holders delayed nine years without excuse or offer to return highet 
interest received. 

99 U. 8. 213, 214. Not cited. 

99 U. S. 214-220, 25 L. 410. SUPERVISORS v. GALBRAITH. 
Syl. 1 (IX, 710). Violating directory provisions not vitiate bonds. 

Approved in D'Esterre v. New York, 104 Fed. 608, upholding 
Gravesend bonds observing all required formalities of registered 
bonds except name of payee, being payable to blank. 

Distinguished in Campbellsville L. Ck>. v. Hubbert, 112 Fed. 725, 
holding unenforceable bonds not observing act Ky. February 27, 
1882, 8 10, requiring bonds issued to pay Judgment to stipulate on 
face holder's right to liesL 

99 U. 8. 221-229. Not cited. 

99 U. 8. 229-234, 25 L. 373, KING v. UNITED STATES. 

Syl. 1 (IX, 711). Regular assessment unnecessaVy to bind surety. 

Approved in Spreckles Sugar Refining Go. v. McGlain, 109 Fed. 
78, upholding, under Rev. Stat, § 3447, collection of war revenue 
tax on sugar in monthly instalments; Blaco v. State of Nebraska, 58 
Nebr. 566, 78 N. W. 1059, holding misappropriation of money by oil 
inspector in Irregular performance of duty give sureties no defense. 

Syl. 2 (IX, 711). Money received by officer is government's. 
See 91 Am. St. Rep. 553, note. 

99 U. 8. 235-256, 25 L. 339. FOSDICK v. SCHALL. 

Syl. 5 (IX, 714). Court directing payment when receivership 
asked. 

Approved in Southern Ry. v. Carnegie Steel Co., 176 U. S. 277, 
44 L. 468, 20 Sup. Ct 355, upholding claim against mortgaged rail- 
road property for rails furnished for operating repairs within nine 
months prior to receivership; Farmers' Loan, etc., Co. v. Louisville, 
etc., Ry., 103 Fed. 128, upholding decree of foreclosure against rail- 
road property where agreement was made by others than parties 
to foreclosure by which new company was to be Joined; New York 
Security, etc., Co. v. Louisville, etc., R. R. Co., 102 Fed. 392, holding 
Junior mortgagee obtaining receivership for consolidated road not 
entitled upon prior mortgage interests debts created by receiver In 
operating road. 

Distinguished in Hampton v. Norfolk, etc., Ry., 127 Fed. 666, 
holding Judgment obtained against railroad after receivership for 
tort committed before, inferior to mortgage claim on earnings of 
receivership. 



23 Notes on U. S. Beporte. S9 U. S. 235-250 

Sjl. fl iIX, 71S)- Railroad mortgages peculiar. 
Approved In Louisiana, etc., R, R. Co. v. Mempbls Gastlgbt Co., 
125 Fed. S8. botdlDg ODe selling coke and coal to gas company for 
use entitled to no preference over bond creditors paid from funds 
of company without appointment of receiver; International Trust Oo. 
r. United Coal Co., 27 Colo. 204, 206, 257, 60 Pac. 624, 625, lioldlng 
unsecured creditor of trust company not entitled on foreclosure of 
aiorlsage and appointment of receiver to claim priority over mort- 
gagee. 

SyL 7 (IX, 718). Slortgagee impliedly gives current debts priority. 
Approved In Southern Ry. v. Carnegie Steel Co., 176 V. 3. 278, 
44 L. 468, 20 Sup. Ct. 355, upholding against mortgaged railroad 
property claim for rails furnished within nine months before re- 
ceivership for use In current repairs; Gregg v. Mercantile Tr. Co.. 
I09 Fed. 227, holding claim for cross-ties used in repair, current 
expenses superior to mortgage, but rejecting claims for locomotives, 
tenuinat rentals, and legal services; Reynolds, etc.. Co, ». Eawclt, 
2T Ind. App. 484, 61 N. E. 734. holding creditors furnishing paper 
materials aubsequent to chattel mortgage to secure creditors en- 
tltleii to enforce mortgage against funds in receiver's bands ahead 
of mortgagees; Gambia Iron Co. v. Union Trust Co., 154 Ind. 304, 
S5 N. E. 750, holding Hen of materialmen for supplies used in pav- 
ing streets along street railway trac1<s, where charter required 
Mcli paremeut as condition of operation, prior to mortgage claims. 
Olsilngnlsbed in Van Frank v. Brooks, 93 Mo. App. 427, 67 S. W. 
•^2. holding where Mo. Rev. Stat. 1889, % 6741, provide lien for 
rtilroad employees, equitable doctrine of Fosdlclt v. Schall not 
"Tallable. 
*yi. 8 (IX, 718). Appointing receiver matter of discretion. 
Approved in Chapman v. Atlantic Trust Co.. 118 Fed. 268, liold- 
Ing one petitioning for receivership of Irrigation company for de- 
(ldeti(^ occasioned by excess of receiver's expenditures over re- 
i-eipts; New York Security, etc., Co. v. Louisville, etc., B. R. Co., 
ll}_ pgj^ g()o^ holding Junior mortgagee obtaining receivership for 
"insoiidated road not entitled to shift to prior mortgage interests 
flebts created by receiver in operating road. See 72 Am. St. Rep. 
S7, notg 

Syl. 10 (IX. 718). Current debts paid where Income diverted. 

Approved In Southern Ry. v. Carnegie Steel Co., 17fi U. S. 274. 
*^ L 467, 20 Sup. Ct. 354, 356, 302, upholding against mortgaged 
railroad property claim for rails furnished within nine months 
l^fore receivership and tised In current repairs; Louisville, etc., 
I*- R- Co. V. Memphis Gaslight Co., 125 Fed. 99. 100. holding ona 
eflllag coke and coal to gas company for use, entitled to no prefer- 
eQvc over bond creditors paid from funds of company without ap- 



90 U. S. 23&-256 Notes on U. S. Reports. 231 

pointment of receiver; Southern Ry. Co. t. Ensign Hfg. Co^ 117 
Fed. 419, 420, holding claim for price of car wheels famished to 
company for nse in repairing leased road not prior in equity to 
mortgage lien on first road; Fosdiclc t. Schall, 114 Fed. 392. hold- 
ing Judgment obtained against railroad after receivership for per- 
sonal injuries received before, not entitled to priority oTer mort- 
gage claim, N. C. Code. 8 1255. not applying; Gregg v. Mercantile 
Trust Co.. 109 Fed. 222. 22S, holding claims for croes-ties nsed In 
repair of road, current expenses entitled to precede mortgages, tmt 
rejecting claims for locomotives, terminal rentals, and legal serrioes; 
Rhode Island, etc.. Works v. Continental Tr. Co., 108 Fed. 7. 8, 9, 
holding notes for unpaid price of locomotives sold company prior to 
receivership not preferred to mortgage claims, engines not beins 
shown necessary to operation of road; Farmers* L. & T.* Col t. 
American W. Co., lOT Fed. 26. 27. 28, 30. holding vendor of enable 
to water-works company has right against income in receiver's 
hands prior to income mortgagee where mortgage left mortgagor 
in possession; Lee v. Pennsylvania, etc.. Co., 105 Fed. 406, 409, 410l» 
holding claim against street railroad for bolts and rail-Joints for- 
nished withinf six months before receivership and used for repnin 
prior to mortgage claim; First Nat. Bank v. Ewing, 103 Fed. 18i» 
upholding receiver's certificates issued by court's order to pay for 
completion of road, as conferring lien superior to prior mortgages; 
Manhattan Trust Co. v. Sioux City. etc.. R. R. Co., 102 Fed. TtS. 
holding claim for rental of terminal property accruing within six 
months prior to receivership preferred to bondholder's claim; Ebun- 
merly v. Mercantile Trust, etc., Co.. 123 Ala. 599, 26 So. 6i7, re- 
fusing priority to railway employee for labor over mortgagees, 
where work was done prior to receivership, but no diversion of 
funds shown; Van Frank v. St. Louis, etc.. R. R., 89 Mo. App. 57( 
refusing priority to claim for articles used in construction and 
pair of road, since Mo. Rev. Stat 1S99, § 4239, gave mechanic's lien 
therefor; Van Frank v. St. Louis, etc., R. R., 89 Mo. App. 499, dis- 
allowing preference over mortgage creditors to unsecured creditor 
furnishing stationery and printed matter furnished prior to re- 
ceivership; Van Frank v. Missouri, etc.. Ry. Co., 89 Mo. App. 469. 
474, refusing priority to claim for articles used In construction and 
repair of road, since Mo. Rev. Stat 1S99, § 4239, gave mechanic's 
lien therefor; dissenting opinion in Illinois Trust, etc. Bank r. 
Doud, 105 Fed. 150, 151, 153, 154, majority holding claim of creditor 
for money loaned to pay interest upon prior mortgage inferior to 
prior mortgages upon railroad property. See 83 Am. St Bepi 74, 
note. 

Distinguished in Niles Tool Works Co. v. Louisville, etc., Ry., IIS 
Fed. 563, holding claim for machinery sold to mortgagor raOrond 
used in building shops of second road under agreement 



225 Notes on U. S. Reports. 90 U. S. 25(V-2tfO 

roads not preferred to mortgage claim: Illinois Trust etc., Bank 
y. Doad, 105 Fed. 139, 143, 145, holding claim of creditors for money 
loaned to pay interest on prior mortgage inferior to prior mort- 
gagee's right; Maryland Steel Go. v. Gettysburg, etc., Ry., 99 Fed. 
151, holding debts of street railroad in rebuilding power-house not 
claim taking priority over previous mortgages; Cambria Iron Co. 
V. Union Trust Go., 154 Ind. 303, 55 N. E. 750, holding lien of ma- 
terialmen for supplies used in paving streets along street railway 
where charter required such pavement as condition of operation, 
prior to mortgage claims; Van Frank v. Brooks, 93 Mo. App. 424, 
^ S. W. 691, holding where Mo. Rev. Stat 1889, § 6741, 1899, 8 4239. 
provide lien for railroad employees, equitable doctrine of Fosdick 
V. Schall not available. 

SyL 11 (IX, 719). Equity directing proceeds to current debts. 

A.pproved in Illinois Trust etc.. Bank v. Doud, 105 Fed. 131. 
holcling claim of creditor for money loaned to pay interest on prior 
mortgage inferior to prior mortgage where no diversion; Van Frank 
V. Missouri, etc., Ry. Go., 89 Mo. App. 471, 476, refusing priority to 
claim for articles used in construction and repair of road, since 
Mo. Bev. Stat 1899, 8 4239, gave mechanic's lien therefor. 

I>l8tlnguished in First Nat Bank v. Wyman, 16 Golo. App. 472, 
^ I*ac. 457, holding claim for money loaned mining company for 
operation of private railway not preferred to claim of mortgagee 
bandliolder, on foreclosure. 

Crx, 712.) Miscellaneous. 

Approved hi Halsted v. Forest Hill Co., 109 Fed. 824, holding no 
r^^earing granted after decree based on report of master ordering 
^^^Position of funds of Insolvent corporation, though funds still 
in court; Spring F. Go. v. School Dist No. 4, etc., 67 Ark. 238, 54 
3- Vf. 218, holding treasurer of school district not enjoined from 
Pi^ytng for desks furnished on order of only two directors where 
district used desks a year without disaflQrming. 

^ TJ. 8. 256, 257, 25 L. 344, FOSDICK v. CAR CO. 
Syl. (IX, 719). Vendor's lien superior " after acquired " mortgage. 
-Approved in Contracting, etc., Go. v. Continental, etc., Co., 108 
Fed. 4, holding conveying locomotives, part cash, rest in lease war- 
r^ts due later, was sale, giving vendors lien superior to mort- 
gage on after acquired property. 

^ ^. 8. 258-260, 25 L. 344, HUIDEKOPER v. LOCOMOTIVE 
^ORKS. 
^1- 1 (IX, 719). Balance on conditional sale not preferred. 
^PProved in Rhode Island, etc., Works v. Continental Tr. Co., 
"^ Fe<3. 8, holding notes for unpaid price of locomotives sold com- 
*^ ^y prior to receivership not preferred to mortgage where enp^ines 
Vol. II — 15 



U9 U. S. 261-272 Notes on U. S. Reports. 226 

not shown necessary to operate road; Farmers' L. & T. Co, ▼. 
American W. Co., 107 Fed. 28, holding vendor of engine to water- 
works has right against income in receiver's hand prior to income 
mortgagee where mortgagor left in possession; Illinois Trust, etc.. 
Bank v. Doud, 105 Fed. 144, holding claim of creditor for money 
loaned to pay interest on prior mortgage debt postponed to lien 
of prior mortgagee in receivership foreclosure. 

Distinguished in Southern Ry. v. Carnegie Steel Co., 176 U. 8. 
280, 44 L. 469, 20 Sup. Ct. 356, upholding against mortgaged rail- 
road property claim for rails furnished within nine months before 
receivership and used for repairs; Illinois Trust, etc., Bank y. Dond, 
105 Fed. 145, holding claim of creditor for money loaned to pay 
mortgage interest inferior to prior railroad mortgage. 

99 U. S. 261-265, 26 L. 435, CAMPBELL v. RANKIN. 

Syl. 1 (IX, 720). Possession at eviction shows presumptive title. 

Approved in Cosmos Exploration Co. v. Gray Eagle, etc., Co^ 
112 Fed. 20, holding land occupied by persons exploring for oil not 
open to settlement under 30 Stat. 36, providing for selecting lands 
in lieu forest reservation; Lockhart v. Leeds, 10 N. Mex. 596, 63 Pac. 
52, dismissing bill for injunction restraining operation of mine 
where plaintiff partner's prior possession surrendered wrongfolly 
to defendant enabled plaintiff to bring ejectment. 

Syl. 2 (IX, 720). Judgment on same matter res adjudicata. 

Approved in Mitchell v. First Nat. Bank, 180 U. S. 481, 45 H 682, 
21 Sup. Ct. 421, holding denial in State court of claims agalnat 
insolvent estate precludes prosecution of claim in Federal court in 
proceedings begun before those in State court; Norton v. House of 
Merc^, 101 Fed. 386, holding New York cori)oration legatee under 
Kentucky testator's will found incapable of taking by Kentucky 
court cannot bring second suit in other State; Hart, etc. v. Moulton, 
104 Wis. 353, 76 Am. St. Rep. 884, 80 N. W. 600, holding doctrbie of 
res adjudicata inapplicable where first action was tort for wrong- 
ful disposition of property and second replevin to recover property. 

99 U. S. 265-272, 25 L. 322, UNITED STATES v. PUGH. 

Syl. 1 (IX, 721). Contemporaneous construction of ambiguous 
law weighty. 

Approved in Fitzwilliam v. Campbell, 99 Fed. 38, holding Tex. 
net 1836, organizing county Probate Courts with " full jurisdie 
tion of all testamentary matters," conferred power to sell both 
realty and personalty when necessary. 

Syl. 2 (IX, 722). Court of Claims' Judgment reviewable. 

Approved in Montoya v. United States, 180 U. S. 260, 45 K 624, 
21 Sup. Ct. 361, upholding ruling of Court of Claims that depreda- 
tions committed by Indians previously amicable but members of 
Iiostile band not within act March 3, 1891. 



227 Notes on U. S. R^;K>rt8. 99 U. 8. 273^825 

dXp 721.) Misoellaneons. 

Ipproyed in Cnnard SS. y. Kelley, 126 Fed. 616, holding on facts 
finding that steamship company received skins on board not sup- 
portable by evidence of receipt and nondelivery. 

» U. & 27a-285, 25 L. 412, TRANSPORTATION CO. v. WHEEL- 
ING. 

Byh 2 (IX, 723). Home port may tax Interstate vessels. 

Approved In Yost v. Lake Erie, etc., Ck)., 112 Fed. 748, 749, hold- 
ing Michigan vessel engaged In interstate commerce, being regis- 
tered in home port as required by Rev. Stat, { 4178, not taxable In 
Ohio. 

99 U. S. 286-290. Not cited. 

99 U. S. 291-297, 25 L. 324, M YRICK v. THOMPSON. 
SyL 2 (IX, 724). Attorney transferring Slonx scrip lands. 

Approved In Midway Co. v. Eaton, 183 U. S. 612, 615, 618» 46 L. 
35^ 366, 357, 22 Sup. Gt 265, 266, 267, 268, upholding power of 
attorney locate Sioux scrip and to sell land located therewith, un- 
der act July 17, 1854, forbidding transfer of such scrip. 

SyL 8 (IX, 724). Federal court affirming Judgment State court 

Approved In Baldwin v. Maryland Use of Hull, 179 U. S. 222, 45 
1^ 162, 21 Sup. Ct 106, upholding Judgment of Maryland court 
establishing liability of ward's estate to State for taxes and affirm- 
Ins judgment without further consideration. 

^ tr. 8. 298-309, 25 L. 473, PHELPS v. McDONALD. 

SyL 3 (IX, 725). Equity acts on parties, res absent 

Approved in Miller v. Riclcey, 127 Fed. 580, holding Nevada court 

^vlng Jurisdiction of parties has jurisdiction to try suit to enjoin 

'^'^ngful diversion in California of water of stream flowing into 

Kevada; Willey v. St Charles Hotel Co., etc., 52 La. Ann. 1593, 28 

So. 187, holding La. act No. 180, 1894, requiring contractors to 

pvoYlde payment for subcontractors and materialmen protect latter, 

^ongh outside State; Schmaltz v. YofIl, Mfg. Ck>., 204 Pa. St 13, 53 

'^tL 626, 93 Am. St Rep. 786, enjoining defendant of Pennsylvania 

from removing refrigerator attached to New York brewery, mort.- 

Stge on which was assigned tb plaintiff, also of Pennsylvania. 

Distinguished in Lindsley v. Union, etc., Min. Co., 26 Wash. 303, 
^ Pac. 383, refusing to enjoin trespass waste in mine in foreign 
j^sdiction, though parties all before court 

W U. S. 309-325, 25 L. 387, UNIVERSITY v. PEOPLE. 
SyL 2 (IX, 726). State decision on obligation contract reviewable. 

Approved in Houston & Texas Cent. R. R. Co. v. Texas, 177 U. S. 
^» ^ L. 680, 20 Sup. Ct 549, holding construction of statute under 



99 U. S. 325-355 Notes oa U. S. Reporte. 228 

which cause of action for default of payments for school land 
enforced on ground that payment In treasury warrants was TOld 
impairs contract. 

Syl. 3 (IX, 72G). Violating charter tax exemption impairs contract. 

Approved in Colorado Seminary v. Arapahoe County, 30 Cola 
511, 71 Pac. 411, holding under seminary charter exempting prop- 
erty necessary for carrying out design in best manner, all property 
so used exempt; In re Northwestern University, 206 111. 65, 68 N. E. 
76, holding 111. Laws 1855, p. 483, exempting all property of what- 
ever kind belonging to or owned by Northwestern University, ap- 
plied to property owned prior to law. 

Distinguished in Theolofi^lcal Seminary v. Illinois, 188 U. S. 675, 
23 Sup. Ct. 388, 47 L. 649, upholding State court's decision that 
charter exemption of property of whatever Idnd belonging to 
Theolofi^ical Seminary did not include property rented or held as 
investment 

99 U. S. 325-334. Not cited. 

99 U. S. 334-348, 25 L. 894, SAGE ▼. CENTRAL R. B. CO. 
Syl. 1 (IX, 727). Trustee purchasing at foreclosure sale. 

Approved in Fidelity, etc.. Deposit Co., v. Roanoke St Ry., 98 Fed. 
479, upholding agreement between bondholders of foreclosed cor- 
poration to purchase mortgaged property where rights of creditors 
not injured; Look wood v. Cook, 58 Nebr. 304, 78 N. W. 624, hold- 
ing Inadequacy of price paid by owner of mortgaged premises at 
foreclosure sale no objection; dissenting opinion in London, etc.. 
Bank v. Horton, 126 Fed. 609, majority decreeing foreclosure and 
resale on prayer for general relief by mortgagee purchasing at fore- 
closure sale against defendant bound by former decree though not 
Joined therein. 

Distinguished in London, etc., Bank v. Horton, 126 Fed. 606, 
decreeing foreclosure and resale on prayer for general relief by 
mortgagee purchasing at foreclosure sale against defendant bound 
by former suit but not Joined. 

99 U. S. 348^55, 25 L. 303, HOGB v. RAILROAD CO. 

Syl. 2 (IX, 728). Tax exemption Intent must appear. 

Approved in Matthews v. Board of Comrs., 97 Fed. 404, holding 
act N. C. 1899, creating State corporation commission repealed 
pro tanto charter of corporations having right to fix rate where 
such corporations consolidated; Senn v. Levy, 111 Ky. 325, 63 8. W. 
778, holding corporation adopting portion of law April 5, 1893, Ky., 
permitting amendment of articles, becomes new corporation gov- 
erned by provision placing liability double amount of stock; Deposit 
Bank of Owensboro v. Daviess Co., etc., 102 Ky. 187, 39 S. W. 1033. 
holding corporations accepting Ky. act 1886, containing proTl- 



229 Notes on U. S. Reports. 90 U. S. 355-389 

BioB reieiTing right to alter charters, were subject to such alteration 
without impairment of contracts. 

» U. 8. 355-381. 25 L. 470, DENVER v. ROANE. 

SyL 1 (IX, 729^ Representatives deceased partner accounting 
against snryiYors. 

Approved in Pye v. Bowling, 82 Mo. App. 592, holding laches 
where plaintiff was ignorant of amounts collected by partner no bar 
to bin in equity to adjust partnership accounts. 

Syl 2 (IX, 729). Unless stipulated surviving partner, no com- 
pensation. 

Ap[m>ved in Porter v. Ix>ng, 124 Mich. 592, 83 N. W. 604, refusing 
compensation to son for managing partnership business after 
Iktber'g death, latter being partner. 

SyL 3 (IX, 729). Attorney refusing assistance gets no fee. 

A^pproved in Miller v. Hale, 96 Mo. App. 430, 76 S. W. 259, hold- 
ins: ^here no abandonment shown one partner entitled to account- 
ing for sums paid other as partner on architect's contract. 

99 rr. 8. 362-377. Not cited. 

99 TJ. 8. 378-382. 25 L. 453. VAN NORDIN v. MORtON. 
8yL 2 (IX, 731). Federal courts separate law and equity. 
Approved in BUick v. Jackson, 177 U. S. 363» 44 L. a07» 20 Sup. 
Ct. 653, holding under Okla. StaL 1893, p. 764, 8 3882, merging law 
and equity, Oklalioma court cannot grant mandatory injunction to 
pi^tect homesteader's possession, adequate legal remedy existing; 
Gravenberg v. Laws, 100 Fed. 6, 7, refusing in action at law on 
contract arising in Louisiana where law and equity merged, to 
allow intervention of lienholders to determine priority. 

» U. 8. 382-n389, 25 L. 305, RYAN v. RAILROAD CO. 

SyL 2 (IX, 832). Selection necessary to vest lien lands. 

Approved in Southern Pacific R. R. v. United States, 1^9 U. S. 
^ 23 Sup. Ct 569, 47 L. 900, holding Southern Pacific Company 
^der 16 Stat at Large, 573, cannot take indemnity lands of Atlantic 
^d Pacific road, though such forfeited to government; Oregon, etc., 
B* B. V. United States, 189 U. S. 112, 23 Sup. Ct 619, 47 L. 731, hold- 
Sunder 14 Stat at Large, 239, granting land to California & 
^^on Railroad Company, indemnity land open to settlement until 
■«J«cted by company; Clark v. Herrington, 186 U'. S. 209, 46 L. 1130, 
^ Sup. Ct 874, holding even-numbered sections within place limits 
^ Union Pacific grant, 12 Stat at Large, 480, were not open to selec- 
tion as indemnity lands; Southern Pac. R. R. Co. v. Bell, 183 U. S. 
^ 46 L. 386, 22 Sup. Ct 234, holding under 14 Stat at Large, 
1 6, making land grant to Southern Pacific, secretary of interior not 



. •* . 



99 U. 8. 389-401 Notes on U. 8. Reports. 

authorized to withdraw from settlement lands within 
limit; Hewitt t. Schultz. 180 U. S. 151, 45 L. 470, 21 Sop. Ct S12. 
upholding land department's construction of Northern Padlle luid 
grant act 18d4, refusing to withdraw from Indemnity lands on 
approTal of location map of road; United States ▼. Chicago, 
Rj., 116 Fed. 971, holding suit by United States for origlnsl 
steader barred by laches where thirty years intervened since nllwsy 
sold land held as indemnity land to grantees; United States t. 
Cameron, 3 Ariz. 103, 21 Pac. 177, holding in action for wroogfDlly 
fencing public lands defendants claim cannot be extended b cyood 
paper title; Southern Pac R. R. Co. t. Wood, 124 CaL 4S7, S7 PSc 
392, holding 14 Stat 292, granting lands to Atlantic Jb PSctfe 
Railroad Company. proTiding such not to be open to settlement sp- 
pUed only to promisory grant: Altschul t. Clark, 39 Or. 324, 65 ftc: 
dOi, holding selection of land by road company under 14 Stat. 89^ 
granting land to Oregon for road purposes, not complete nnUI sp- 
proved by secretary of interior. 

99 U. S. 389-392. 25 L. 419, HAJLE ▼. FROST. 
SyL 1 (IX, 733). Net earnings applied to current expenseSb 

ApproTed in Southern Ry. t. Carnegie Steel Co., 176 U. S. 276w 44 
L. 467, 20 Sup. Ct 355, holding daim for rails furnished within nine 
months before receirership and used in repair entitled to preferenee 
to claims of prior mortgages; Lee v. PennsylTanla, etc, Co., 166 
Fed. 409, holding claim against street railway for bolts and isD- 
joints furnished within six months before receiTership and used for 
repairs prior to that of mortgagees; Illinois Trust etc. Bank t. 
Doud, 105 Fed. 138, holding claim for money loaned to pay Interest 
upon prior mortgage Inferior to claim of prior mortgagees; Flist 
Nat Bank ▼. Ewlng, 103 Fed. 186, holding contractor fomisliiBS 
materials and labor in original construction prior to receiTership not 
entitled to priority over mortgagees; Van Frank y. Hissoortv de., 
Ry. Co., S9 Mo. App. 469, 479. allowing recoTery by connecting 
carrier from earnings of first carrier in priority to mortgage credUnn 
traffic balances accruing within year prior to recelTerslilp. 

Distinguished in Farmers' L. & T. Co. t. American W. Col, 107 
Fed. 21, 27, 30, 31, holding vendor of engine to water-works eom- 
pany has right to income in receiver's hands prior to income mort- 
gagee, mortgage leaving mortgagor in possession. 

99 U. S. 393-^98. Not cited. 

99 U. S. 398-401, ^ L. 437, SMITH v. RAILROAD CO. 

SyL (IX, 734). State legislation cannot affect Federal JurisdicliOB. 

Approved in Glass v. Concordia Parish Police Jury, 176 U. & Zlfll 
44 L. 437, 20 Sup. Ct 347, holding purchaser of warrants at P^obnte 
Court's Judicial sale assignee within act March 3, 1875, lequfrisc 
of assignee ability to sue without assignment; PeacodL, etc. Gol t. 






u. 



Reports. 09 U. a 402-482 



WlUlams, 110 Fed. 919, bolding Federal courts cannot entertain 
fKdltor's claim on notes not reduced to Jndgmeut, thongb inch 
an it authorized by State statutes, 
99 V. S. -lOa-ML Not cited. 
99 V. S. 441^49. 25 L. 327, KEBLY v. SANDERS. 
SyL 1 (IX, 7381. Description informing owner of claim sufficient. 
Approved in Saranac Land, etc. Co. t. Comptroller of New York, 
17T U. S, 331. 44 L. 793, 20 Sup. Ct 648, holding error as to few acres 
in description of large tract not sufficient to vitiate tax title. 
Byh 2 (IX, 738). Oommlssloner'a certificate evideDcea regularity 
ot sale. 

Approred In Dumphy v. Hilton, 121 Mich. 317, 80 N. W. 2, bold- 
InfS mere fact of iDcompeteuc; of landowner at time of tax sale no 
K^oixud for redress after statute rune untess provided by sta.tute. 
<! X, 738), Misctllaneous. 

.A-iiproved In McMillan v. Hogan, 129 N. C. 317, 40 S. B. 64, hold- 
ing under N. C. Acts 1895, cbap. 119. providing action to redeem 
C^L^c title after majority, death of owner gives no right to redeem 
aXtcsr statute run. 
SO 1J. S. 449-462. Not cited. 
SO TJ. S. 463-482, 25 L. 438. RAILWAY CO. v. ALLINO. 

^jL 1 {IX, 733). Supreme Court allowing corporation's appeaL 
.A.pproved in Didterman v. Northern Trust Co., 17B U. S. 193, 44 
L. ^1, 20 Sup. Ct. 315, holding instant declaration by trustee that 
tw>t:li Interest and principal due for nonpayment of execution, direct- 
ory being witliog though mortgage allowed reasonable time. 

Sjl 2 (IX, 740). Act 1872 granted immediate beneficial easement 
-Approved In Jamestown & Northern R. R. Co. v. Jones, 177 D. S. 
130, 44 L. 700, 20 Sup. Ct, 5T0. holding actual construction of 
'^Uroad Is location entitling it to benefits of land grant of act Marcti 
*• 1876; Indiana Power Co, v. St. Josepb, etc., Power Co., 159 
^^'^ 48, 63 N. E. 306, holding hydraulic company organized under 
- ^"d. Bev. Stat. 1881, f 3696, filing Instrument of approprleUon 
^ *"%alty, may condemn lands previously condemned without filing 
notice; Railroad Co. v. Kansas City, etc.. By. Co., 9 Kan. App. 290, 
™ **ae. 544, holding railroad cannot acquire lands for right of way, 
'^*<ih are already occupied by another corporation, though lat- 

*».ot completed condemnation proceedings. 
'^^S, 739). Miscellaneous, 

"^"Xiproved la Hamilton v. Spolcane, etc„ R. R. Co., 3 Idabo, 173, 
^ac. 411, holding land over which railroad has right of way, 
'"'^a^r act March 3, 1875, is subsequently bomesteaded subject to 
«»<:fc right 




H 



.99 U. S. 482-639 Notes on U. S. Reports. 282 

99 U. S. 482-491, 25 L. 375, MONTGOMERY T. SAMARY. 

Syl. 1 (IX, 741). Foreclosure sale, when confirmed, condnsiTe 
Approved in Nevada Nickel, etc. v. National, etc, Co., 103 Fed. 
398, holding confirmation of sale of realty, under 27 Stat 751, con- 
clusive, though notices not posted regularly, and realty and per- 
sonalty sold in one parcel. 

99 U. S. 491-438. Not cited. 

99 U. S. 499-604, 25 L. 330, WILSON ▼. SALAMANOA. 

Syl. 1 (IX, 742). Excess bond issue no defense. 

Approved in Beatrice v. Edminson, 117 Fed. 432, holding dty 
issuing bonds beyond constitutional limit of indebtedness estopped 
by recitals therein to question bonds; Board of Gomrs. t. SutUff, 
97 Fed. 277, holding bona fide purchaser may enforce bonds issued 
by county, under Golo. Laws 1877, p. 218, purporting to be In 
conformity therewith, though invalid for excess. See notes, 89 
Am. St Rep. 029, 031. 

Syl. 2 (IX, 742). Gonsolidation acquiring rights of constitaent 
companies. 

See 89 Am. St Rep. 031, note. 

(IX, 742). Miscellaneous. 

Approved in Edwards v. Bates Go., 117 Fed. 533, holding Invalid, 
under Laws Mo. 1808,. p. 92, authorizing Gounty Gourt to subscribe 
for railroad stoclc issuing bonds in payment, court*s order for sale 
of bonds at discount. 

99 U. S. 505-608, 25 L. 354, GRIGSBY v. PURGELL. 

■Syl. 1 (IX, 743). Appeal dismissed unless transcript filed promptly. 

Approved in Pender t. Brown, 120 Fed. 497, 499, holding return 
of writ of error with record at next ensuing term, or cause shown 
for failure, necessary to Jurisdiction of Gircuit Gourt of Appeals. 

99 U. S. 50&-512, 25 L. 482, UNITED STATES v. GERMANIO. 

Syl. 1 (IX, 743). Pension commissioners appointee not government 
oflacer. 

Appointed in Patton v. Board of Health, etc., 127 Gal. 896, 78 
Am. St Rep. 71, 59 Pac. 705, holding health inspector appointed 
by San Francisco board of health a public officer within GaL 
Gonst., art 20, § 16, removable without hearing; Mayor, etc., of 
Glty of Baltimore v. Lyman, 92 Md. 612, 48 Atl. 146, holding 
Baltimore superintendent of public instruction appointed at pleas- 
ure of school commissioners, under city charter. Acts 1898^ chapw 
l!23, not city official required by charter to be voter. 

(^ U. S. 513-539. Not cited. 



23S Notes on U. S. Reports. 90 U. S. 639^73 

99 TJ. S. 530-546, 25 L. 355, YTJLBB ▼. VOSB. 

Sjrl. 2 (IX, 745). Record must show cause for removaL 

Af>firoTed in Debnam v. Sonthem Bell TeL Co., 126 N. G. 837, 
36 S. £. 271, holding foreign corporation becoming domestic by 
comK>liance with N. C. Laws 1809, chap. 62, cannot remove suit 
^t >S^orth Carolina citizen without showing Federal question; dis- 
sent!, xr^g opinion in Calvert v. Railway Co., 64 S. C. 149, 41 S. E. 
966, x=K3aJority holding foreign railroad corporation becoming domestic 
by o<:^ iDpliance with S. C. act March 19, 1896, nonresident thereof 
for X^^^eral Jurisdiction. 

09 IT_ S. 547-560, 25 L. 357, KARTELL ▼. TILGHMAN. 

Sy"l« 1 (IX, 745). Patent contracts not within Federal Jurisdiction. 

-A^t>X3roved in Atherton Mach. Co. v. Atwood, etc^ Co., 102 Fed. 

053, folding bill for injunction and accounting for infringement 

of (^^tent quilling machine arose under patent laws, though in- 

voil^axig question of title to patent; M'Mullen v. Bowers, 102 Fed. 

496, -^^^ 500, holding suit by patentee of dredging apparatus against 

a^Sxiee of license to use same to prevent use beyond licensed 

tem^^ry j^Q^ under patent laws; Kurtz v. Strauss, 100 Fed. 801, 

holAii3g patent-ownar's bill to enforce contract for manufacture 

o^ ^^tent article, and to cancel forged assignment, not arising un- 

^^ Xlnited States patent laws; Atherton Mach. Co. ▼. Atwood, etc., 

^^** 09 Fed. 114, holding suit in equity to determine ownership 

^^ Pa.tait assigned to both claimants does not arise under United 

States patent laws; Carleton v. Bird, 94 Me. 188, 47 Atl. 155, hold- 

^^ ^ctl(m of debt to recover for use of patent lime-kiln in which 

^°^^t:ion of infringement arose incidentally not arising under Fed- 

^'^^ patent laws. 

^latlnguished in Excelsior Wooden Pipe Co. v. Paciilc Bridge 
P^-» 185 U. 8. 291, 294, 46 L. 915, 916, 22 Sup. Ct 684, 685, hold- 
^^ suit by licensee against "patentee alleging infringement by 
(ignment arises under patent laws of United States. 

^^, 745). Miscellaneous. 

approved in American St. Car Advertising Co. v. Jones, 122 Fed. 
holding licensee of patent liable for royalties for manufacture 
^^^^ license terminated or forfeited. 

XT, S. 560-566, 25 L. 484, COLBY ▼. REED. 

^^1. 2 (IX, 747). Excessive demand not defeat recovery. 

^ -approved in Emack v. Hughes, 74 Vt 389, 52 Atl. 1063, holding 
^^r requiring immediate shipment of slate to cover advances 
^^e, though contract entitled writer only to slate for preceding 
^^*ith, not breach of contract. 

^ XJ. a 567-^73. Not citedb 



99 U. S. 573-592 Notes oa D. 8. Reports. 834 

99 U. 8. 67a-B77, 25 L. 292. BLUOTT v. EAILEOAD CO. 

Syl. 1 (IX, 743). Penalties never estendeil by ImpUcatlftn. 

Approved In Gallup v. Schmidt. Treas., 154 Ind. 217. &S N. S). 
450, holding owner not liable for Interest on unpaid taxes where 
such penalty not Imposed b; Bums' Rev. Stat. lod. 1SS4. |g 8531, 
8560. 
99 C. S. 578-682, 25 L. 420, PENCE v. LANGDON. 

Syl. 4 (IX, 748). Where Jury flnda correctly, error barmless. 

Approved In Hughes, etc.. Dill v. Vanstone, 24 Mo. App. 641, 
holding, under lease in question, lessee was not bound to malce le- 
paErs requested. Question wrongly left to Jury harmless error, 
since jury decided correctly. 

Syl. 6 (IX, 74S). Party seeking rescission must act promptly. 

Approved in Homer v. Lowe, 159 Ind. 411. 04 N. B. 220, hold- 
ing defendant bound by deed which did not Include all land In- 
tended where plalntlfF offered to correct same, but d^endant 
delayed fifteen years thereafter. 

SyL 6 (IX, 749). Burden of proving Itnowledge on defendant 

Approved In Rasmussen v. Levin, 28 Colo. 452, 65 Pac. 95, hoIdJng 
acceptance of Interest on mortgage debt where mortgagee's knowl- 
edge of default of tas payments not specially pleaded constituted 
no waiver of right to foreclose; Wells v. Houston, 29 Tes. Civ. 628, 
G9 S. W. ISS, holding in action to set aside deed for fraud of 
grantee acquiescence of grantor with knowledge of fraud must be 
shown by defendant 

99 U. S. 5S2-D92. 20 L. 331, UNITED STATES v. COUNTY OF 
MACON. 

Syl. 1 (IX, 749). Bondholder charged with notice of ptatute. 

Approved in Village of Kent v. United States, 113 Fed. 234, 
holding, under Rev. Stat. Ohio, i SGS3, city compellable to levy 
taxes to statutory limit, eight mills, to pay annual interest on 
Irands; City of Cleveland v. United States, 111 Fed. 343, 345, re- 
fusing mandamus compelling city to levy taxes beyond charter 
limit for year; Grand County v. People, 16 Colo. App. 235, 64 Pac 
682, denying mandamus to enforce Judgment against county where 
plaintiff did not show limit of three mills taxation allowed by 
Colo. Gen. Stat, i 2816, not reached; Debnam v. Chltty. 131 N. 0. 
079, 43 S, E. 10, holding where enabling act Invalid under N. G. 
Const, art 3, ] 14. requiring three readings thereof, city not estopped 
to repudiate bonds Issued thereunder; Uncaa Nat Bank v. City of 
Superior, 115 Wis. 351, 91 N. W. 1007, holdinB city not estopped to 
repudiate general bonds issued under Superior charter 1880, chap. 
152, i 103, providing only for Improvement bonds, chargeaMe upoa 
specific property. 



^ 



za 



Notes c 



U. 



Reports. 



a D. S, 592-606 



Sjl. 2 (IS, 750). No mandamuB where munlcipaUty without 

-Ipproved In State t. WInklemHn, 96 Mo. App. 230. 231, 69 S. W. 
1085, refaslng mandamus to compel levee company to levy tax 
"iere 25 per cent, levy allowed for one year was reachetl In 1SS5, 
"■Sen work done; State v. Mayor, ete,, of City of Bristol. 100 Tenn, 
32* 70 8. W. 1083. holding Acta Tenn, ISST, chap. 88, enabling 
'^<7 of Bristol to tax to pay bonds Issued to pay railway etock Bub- 
wiptJons, Impliedly authorized tax to pay Interest thereou; Uacas 
^at ^ank v. Superior. 116 Wis. 349, 91 N. W. 1007. holding city 
Dot estopped to repudiate general bonds Issued under Superior 
'iait^f 1880, chap. 152, S 103. Bpecifying only improvement bonds 
cliarg-^Eable on Bpeclflc property. 
Sfl. 3 (IX, 750). Judgment gives no new means payment 
Api>»-oved In United States v. Saunders, 124 Fed. 12S. holding city 
""hie on bonds issuea under Comp. Stat Nebr. 1887. containing no 
■tlpol^tlon for payment from apeclal tax levied to cover Improve- 
ment^ (or whicb issued; Weaver v. Ogden City. Ill Fed. 325, re- 
"■^•■^C mandamus to enforce judgment against city requiring special 
^ '^vy where State statutee provided all payments made In 
t:»ry warrants; Grand County v. People, 16 Colo. App. 225, 8* 
^379. refusing mandamus to enforce Judgment agalost county. 
Iff no4 showing three-mill taxaUon of Colo. Gen. Stat., | 2816. 



Pac. 
plain, 
not «7-, 



as 



^^aached. 



-- , 749). MlBcellaneouB. 
■*E:* :tiroved In Ft Madison t. Ft Madison W. Co., 114 Fed. 294. 
* *3g under McClaln's Code Iowa, i 641, empowering city to con- 
^^^^ for water supply to pay aame by flve-mlll tux, city bound on 
""*^:*' contract beyond tbat 

*^ "^"^ ~ S. 592, 26 L. 33S, MACON COUNTY T. HUDIKOPBK. 
^^^^«, 751). Miscellaneous. 

*^*^*^ed In Ft Madison Water Co. T. City of Ft Madison, 110 Fed. 
**®" folding city liable for hydrant rentals In excess of Qve-mlll tax 
P"""^^ ided by McClaln's Code Iowa, | 643, contracts beyond iJiot being 
*'"^**. «rized by section 641. 
^ ^^^ir. S. 5M-606, 28 L. 390, WHISKY CASES. 

^:x?-L 2 (IS, 753). Accomplice teatirylng fully entitled equitable 
P*^^"^aon. 

^--X>Pf<»^ed In Ex parte Greenhaw, 41 Tex. Cr. 283. 53 S. W. 1028, 
ho* VI lag murderer agreeing with Slate attorney to turn State's evl- 
d^"^ ^e on promise of no paiiisliment and boll not entitled to enforce 
Pf^^iniae as to balL 




i 



09 U. 6. 607-628 Notes on U. S. Reports. 286 

90 U. S. 607, 25 L. 446, WHITNEY v. COOK. 

Syl. 1 (IX, 753). Motions to dismiss and affirm Joined. 

Distinguished in Sweeny v. Ck>ulter; Bnrke y. McChesnej; Day 
▼. Hager; Powers v. Hill, etc.; Therckmorton y. Nail, 100 Ky. 806, 
58 S. W. 786, holding under Ky. Cly. Code Proc., i 741« allowing 
appellee to file authenticated copy of record with clerk, atter sncb 
filing appellant cannot dismiss. 

99 U. S. 608-610. Not cited. 

99 U. S. 610-619, 25 L. 421, STRINGFELLOW T. CAIN 

Syl. 1 (IX, 753). Jury trials go up by appeal. 

Approyed in United States Trust Co. y. New Mexico, 183 U. 8. 
540, 46 L. 319, 22 Sup. Ct 174, holding In proceeding to establish 
tax lien, agreed statement of facts certified by territorial court, con- 
taining testimony and transcript of record present, no question to 
Federal court 

99 U. S. 619-624, 25 L. 446, CANNON y. PRATT. 

Syl. 4 (IX, 755). EiXduding cumulatiye eyidence no ground 
reyersaL 

Approyed in Glasler y. Nichols, 112 Fed. 878, upholding exclusion 
of eyidence tliat defendant was broker, only question being whether 
parties had made agreement of agency binding defendant to act in 
plaintifTs sole interest; United States Trust Co. t. Territory, 10 
N. Mex. 428, 62 Pac. 991, upholding assessment of railroad property 
though assessment coyered 60.7 miles when mileage was only 55.5, 
excess being separable. 

99 U. S. 624-628v 25 L. 333, (X)MMISSIONBRS y. SELLBW. 

Syl. 1 (IX, 755). Mandamus directed against board county com- 
missioners. 

Approyed in Murphy y. Utter, 186 U. 8. 101, 46 L. 1075, 22 Sup. 
Ct. 778, holding mandamus awarded to compel payment of judg- 
ment against Arizona loan commission to pay bonds issued by re- 
tired members of continuing board; In re Counties y. County of 
Alturas, 4 Idaho, 155, 95 Am. St. Rep. 58, 37 Pac. 351, holding where 
in county dlyision act apportionment of debt is made duty of paying 
same does not abate by charges in board of county commissioners; 
Hebb y. County Ct. of Tucker County, 49 W. Va. 734, 37 a. B. 678, 
holding mandamus against canyassing board ordering recount of 
ballots final though personnel of board changed. 

Distinguished in dissenting opinion in Hebb y. County Gt ct 
Tucker County, 49 W. Va. 742, 37 S. B. 682, majority holding 
mandamus against canyassing board final though personnel thereof 
changed. 



23T 



Notea on U. B. Reports. 00 U. S. 62a-035 



99 TJ. B, G28~635, 25 L. 448, NATIONAL BANK v. CASE. 

SyV 1 (IX. 756). Pledgee of Block, own name, liable. 

Apptovea in Earle t. Carson, 188 U. S. 62, 23 Sup. Ct 258, 47 

L 3TS, holding owner not liable Tor shares BtaDdlug la Yi\s name 

wbere bona fide Bale had been made and bank officials nutborizeil 

10 transfer on books; Lontry v. Wallace, 182 D. S. 554, 45 L, 1226. 21 

Sup. CL 885, bolding one purchasing atock from natJoual bank, 

Hhlfb had wrongfully bought up owu stock, oeTcrthGless liable 

UiereoQ lo receiver at law; Matteson v. Dent, 176 U. S. 531. 44 L. 

'iiO, 20 Sup. Ct. 423, holding widow and belrs of national bank 

shareholder liable under Rev. StaL. SS 5139. 5151. for tlieir pro- 

pofiion on shares left In decedent's name; Hurlburt t. Arthur, 140 

f^i- 110. 73 Pac. 737, holding under Cal. CIt. Code. | 321. pledgee 

"f Slock as collateral liable thereon as owner where fact of pledge 

aoea not appear OE bank-lMjoka; Foufhe v. Merthants" Not, Bank. 

^'0 Ga. 838. 36 S. E. 260, holding to render one liable as Htockholdt^r 

"f corporation he must be shown to be stockholder at time 

"ability existed; Sherwood v. Illinois Tr„ etc., Sav. Bank, 195 

'"■ H9, 88 Am. St. Rep. 188, 02 N. E. 837, holding one 

"'hose name appeared on stock books as owner liable on shares and 

not allowed to show trust and escape under Hurd's Rev. Stat 1880, 

?■ *^T. Illinois; J. H. Wentworth v. French, 176 Mass. 443, 57 N. E. 

'^' holding under Mass. Pub. Stnt., chap. 106, i 25. allowing 

*" ®**KOr of stock so specified on certificates to vote, pledgee entitled 

^^''ote stock not so designated; Tourtelot v. Whlthed, » N. Dak. 

^^' S4 N. W. 13, upholding contract by which national bank received 

<*cic of milling company In payment of debt, latter being era- 

^*^^ssed; Merchants' Nat. Bank v. Wehrmann, 69 Ohio SL 171, 

*^- E. 1006. holding transfer to national bank of customer's sharps 

Partnership made bank owner In severally thereof ond liable 

?.'"'*IHirtionateIy but not as partner; I'ulton r. National Bank. 26 Tex.. 

^' 119, 62 S. W. 87, holding bank taking corporation shares as 

^^^.teral entitled to hold same against pledgor's administrator 

^tll pledge repaid. 

tilBtlngTilshed la Rankin v. Fidelity Trust Co., 198 U. S. 248, 247, 

■^2. 23 Sup. Ot. 555, 55T. 47 l>. 79n. holding pledgee of national 

***Jilt stock, taken as collateral for loan, not chargeable poiaonally 

^t»der Rev. Stat,, ( 5151, where not In his name nor so represented, 

Syl. 2 ax, 758). Slockbolder'a transfer to avoid liability null. 

Approved In Earle v. Carson, 188 U. S. 49, 51, 52, 23 Sup. Ct. 

S5T, S8, 47 L. 377, 378, holding owner of national bank shares who 

tDQde bona Qde sale thereof, authorising hank offlcialH to transfer 

to purchaser, not liable on Insolvency of bank. 

Syl. 4 <IX. 73S). Comptroller's determination of stockholder's 
liability conclusive. 
Approved lu Dewee^e V. Smith, 106 Fed. 441, 44G, holding national 




L 



89 D. S. G35-r,i5 Notes on D. S. ReporU. 238 

bank stockholder lla.ble to successive assessments bj comptroller, 
since nothlDg due except as comptroller levies; Brown v. ElUs. 103 
Fed. 836, holding executrix liable as such, under Kev. Stat,. | 5152. 
for assessments of comptroller upon shares of national bank stock 
Issued to estate held by her; Aldrich v. Campbell, 07 Fed. 665, 
holding comptroller ma; Issue successive assessments on stock- 
holders of Insolvent bank to par value of stock, such action being 
Judicial and conclusive upon stockholders; Schaberg v. McDonald. 
60 Nebr. 502, S3 N. W. 740, holding where comptroller has ordered 
assessment, national bank stockholder cannot defend on ground 
that receiver has misappropriated claim. 
99 0. S. 035-045, 23 L. 336. TRANSPORTATION CO. v. CHICAGO. 

Syl. 2 (IX, 759). City not liable, damages from tunnel. 

Approved In New Haven, etc., Co. v. New Haven, 72 Conn. 2So. 
44 AtL 233, upholding Conn. Pub. Acts 188i, chap. 100. authorizing 
railroad commissioners to alter railway grade crossings and making 
city and company liable for damages resulting to property; Up- 
plngton T. City of New York, 1<S N. Y. 229, 59 N. E. 92, holding 
city not liable for negligence of Independent contractors in con- 
structing defective sewer for city, which caused damage to prop- 
erty of plaintiff. 

Syl. 4 (IX, 750). Impairing use, public pnriiose, no taking. 

Approved In Scranton v. Wheeler, 170 U. S. 164, 45 L. 134. 21 
Sup. Ct. 53, holding pier erected by government over plalntlfTs 
land submerged under navigable water does not entitle latter to 
compensation; Salliotte v. King Bridge Co.. 122 Fed. 382, holding 
washing away of plaintifTe bank by Increase of current due to 
presence of pier in and bridge across stream constituted no taking; 
United States v. Certain Lands, 112 Fed. 623. 027, 628, holding 
erection of government fortifications which lessen value of ad- 
jacent land for summer resort purposes constitute no taking of 
such land; Richardson v. Cnlted States, 100 Fed. 718, refusing re- 
covery for Injury to oysters occasioned by dredging operations, un- 
der direction of government to Improve navigation; German Sav.. 
etc.. Soc. V. Ramlsb, 138 Cal. 12G, 69 Pac. B3, holding Fourteenth 
Amendment inapplicable to proceedings under Cal. Stat. 1S93. p. 33. 
providing for assessing abutting property for street Improvements; 
Long v. Elberton, 109 Ga. 31, 77 Am. St. Rep. 365, 34 S. E. 334, 
holding erection of prison by municipal authorities, though lessen- 
ing value of property, Is no violation of property rights; Brand v, 
Multnomah Co., 3S Or. 92, 100, 60 Pac. 392. 62 Pac. 210, 84 Am. 
SL Rep. 775, 7S1, holding State's establishing grade of street to con- 
form to bridge approach no taking of abutting owner's land. 

Distinguished In United States v. Lynah, 188 U. S. 472. 23 Sop. 
CL 358, 47 L. 549, holding Irreclaimable flooding of rice plautaUoB 



U 



Notes on U. S. Reports. 



D D. E 



CI 



ac 



resulting from Improving navigation of Savannah river constl- 
mies permanent taking of property: Tegeler v. Kansas City, 95 Mo. 
ipp. 104. 68 S. W. 97A, allowing recovery for fllllng In plaintiff's 
land wbere sucb not necessarily Incident to raising grade of alley 
(q rear of plaintiff's premises. 

!» e. S. B4ii-fB9, 25 L. 4ST. SPRING CO. v. EDGAR. 
Syl. 1 (IX, 762). ICnowlngly iiEcpIng dangerous nnlmal. 
Approved in Parsons v. Manser. 119 Iowa, 90, 03 N. W. 87, hold- 
lug question of owner's negligence In keeping beea which stung 
plalDtlfTs horse was question for Jury; Bell v. I^slle, 24 Mo. App. 
«70, Itoldiug no liability for hart done by vicious mare, being 
of tAtse nature and owner having do notice of habit of running 

Syl, 2 (IX. 7S2>. Injury by deer — Expert testlniony admissible. 

Ai>proved in Baltimore City, etc., Ry. Co. t. Tanner. 00 Md. 320. 
4S A.tl. 189, holding admissible opinion of expert medical wit- 
nesses BB to whether plaintiff's deafness resulted from Injuries 
received in collision. 

Syl. 3 (IX. 763). Whether witness expert, court's preliminary 
qaeatioQ. 

-*-I>proved In Bradford Olyce'rlne Co. v. Klzer, 113 Fed. 897, ex- 
wntaiug question of effect of sun upon nltro-glycerlne, witness, 
tiiovBgh a well-shooter, not having quallfled before court as expert 
'" «=ct.alter; Sloan v. Baird. 162 N. Y. 333, 56 N. E. 754, upholding 
'*'^*:~ee'H admission of answers of two witnesses conversant wltli 
*;**r business as to value of rubber plant in controversy; Traver 
'■ ^-^Kioliane St. Ry. Co., 25 Wash. 253. Go Pae. 204. sustaining ruling 
'^**. Jttiag testimony of motormen accustomed to running cars as 
^*^art evidence of distance at which car going at given speed rata 
""*id stop. 

^ "^3. S. 660-868, 23 L. 306, EVANSTON r. GUNN. 
^^^^1. 1 (IX, 763). Evidence — Specified objection waives all others, 
istlngulehed In Dewalt v. Houston B., etc., Ry. Co.. 22 Tex. 
,.40S. 55 S. W. 53i{. holding admissible as part of res gestiB In 
^^Tgy accident case, statement of brakeman live minutes after 
Jdont that he knew plaintiff had been working near. 
'-jl 2 (IX, 703). Public officer's official registers admissible evl- 



^^^pproved In Murray v. Supreme Lodge N. E. O. P., 74 Conn. 
^S. S2 Atl. 723, holding records of registrar kept pursuant to law, 
^ '^^tvlng age on marriage and birth of children, admlsalbl* under 
*^^3ia. Gen. Stat. 1888, to prove age. 



90 U. S. eeS-(S&9 Notes on U. S. Reports. 240 

Distinguished in Board of Comrs. v. Keene, etc., Bank, 106 Fed. 
500, holding county cleric's account-books not kept as part of duty 
as official not admissible in action between county and third party. 

Syl. 3 (IX, 763). Municipality liable for injuries from sidewalk. 

Approved in dissenting opinion in Workman v. Mayor, etc., of 
New York, 179 U. S. 583, 46 L. 329, 21 Sup. Ct 224, majority hold- 
ing under maritime law city liable for negligence of servants on 
city flreboat resulting in collision with plaintifTs vesseL 

Syl. 5 (IX, 764). Charge good if sound as whole. 

Approved in Redhing y. Central R. R. Co., 68 N. J. L. 640, 54 
Atl. 432, holding use of term " honest " instead of " reasonable 
l)elief," characterizing plaintifTs attitude in crossing track, not 
error, when charge in general correct. 

99 U. S. 668-674, 25 L. 265, LYON v. POLLOCK. 

Syl. 1 (IX, 764). Letter desiring to sell as authorization. 

Approved in Donnan v. Adams, 30 Tex. Civ. 620, 71 8. W. 588. 
liolding handing to agent written memorandum describing land, and 
including price, no authorization to bind owner by deed. 

99 U. S. 674-676. Not cited. 

99 U. S. 676-683, 25 L. 404, ORLEANS V. PLATT. 

Syl. 5 (IX, 765). Municipality bound by recitals in bonds. 

Approved in Waite v. Santa Cruz, 184 U. S. 318, 46 L. 564, 22 
Sup. Ct. 333, holding city estopped to deny recitals in bonds stat- 
ing compliance with act 1893 and Constitution of California, al- 
though original bonds were not part of bonded indebtedness; Wes- 
son V. Town of Mt Vernon, 98 Fed. 808, holding township author- 
ized to issue bonds for legal indebtedness estopped by recitals aver- 
ring compliance with statutes to deny truth of recitals; State v. 
Board of Wichita Co., 62 Kan. 501, 64 Pac. 47, holding county com- 
missioners issuing bonds authorized by Kan. Laws 1891, chap. 168, 
estopped to deny recitals that bonds not for legal indebtedness 
nor outstanding two years. 

Distinguished in Clarke v. Northampton, 105 Fed. 313, holding 
city not estopped to deny bonds invalid for failure to comply with 
act 1871, requiring election by majority taxpayers, excluding dog 
and highway tax. 

99 U. S. 684-686, 25 L. 451, LYONS v. MUNSON. 

Syl. 2 (IX, 766). Fair holder relying on bond recitals. 

Distinguished in Clarke v. Northampton, 105 Fed. 313, holding 
wiiere bonds invalid for failing to state petitioners majority of tax- 
payers " not including those taxed for dogs and highways onlyt** 
city not estopped to deny. 

99 U. S. 086-699. Not cited. 



141 NolPH on U. S. Rtporta. m U. S. 70O-7G9 

» P. 8. 700-760. 25 L. 504. SINKtNG FUND CASES. 
StL I (IX, 788). Congresslona] act void — Clear case renuireil. 
Approved in Jew Ho v. Williamson. 103 Fed. 17. holding quaran- 
nut KgaUtioas preveotlDt; comDiunlcatloii wltb outside district ot 
rerrilory fovering twelve blocks, Including lO.CWO people, not reaaon- 
ible police regulation where nine died from plague: State v. Layton, 
IWMo, 489. 499. 61 S. W. 174, 177, upholding Mo. act May 11. 1890, 
p«lilbltliig sale of alum baking powders as unhealthy; dissenting 
tpinlon Id Sims t. SL I^uls. etc.. Ry.. 1T4 Mo. 96. 73 S. W. IS9S. 
WdlnjRe*. Stat. Mo. 18S9, { 2873. imposing liability upon rnllroail 
fotdsmages to employees Injured by fellow servauts, Inappllcalile 
to itmt railways. 
8jL2(IS. 768). Governmental branches should not eiicroiu-li. 
Approved in Tanner t. Nelson, 25 Utah, 233. 70 Pac. 987, boUllii!! 
Mto (if education convenUon under Utah Rev. Stat.. 8) 1854. 185:*. 
1SS9. requiriDg It to select State text-books, not Judicial: Seattle, etc. 
S. E, T. Belllngham Bay, etc., R. R., 29 Wnah. 494, 92 Am. St. Hep. 
SIC 68 Pac 1108. holding Supreme Court has Jurisdiction to Issue 
cwilorari to review action in proceeding adjudging railway right ot 
irij necessary for other road. 
Syl S (IX, 769). State reserving power to amend charier. 
Approved In Stanislaus Co. v. San Joaquin, etc.. Co.. 192 U. S. 212. 
MSllp. CL 245. holding Cal. Stat. 18fi2. 1 3, empowering water com- 
P*°les to establish rates not reducible by supervisors below 18 per 
Mt proBf, created no contract: Bienville Water Supply Co. v. 
Uoblle. ]gQ U. S. 222. 46 h. 1137. 22 Sup. Ct. 824, holding under 
Ak Coost., art 1. i 23, permitting legislature to revoke exclusive 
fnnre of franclilse. such miglit be done, although working injus- 
tice; Looker v. Maynard ei rel. Dusenbury, 179 U. S. 5U. 45 L. 82, 
a Bop. Ct. 23, upholding Mich. Stat. 1SS6. chap. 112, permitting 
cumulative voting for directors by stoctholders; Union Pac. Ry. v. 
Huon city, etc., Ry., 128 Fed. 238. holding purchaser of railway 
property takes subject to court's decision ordering prior owner 
to illow use of bridge and terminals to another railroad paying 
rental; Woodson v. State, 69 Ark. 527. 532, 65 S. W. 487, 471, np- 
tioldlcg Ark. act April 10, 1899, requiring corporation mining 
"Hi Klling coal by weight to weigh coal before screening; Johnson 
V. Goodyear MIn. Co.. 127 Cal. 18, 78 Am. St. Rep. 30, 50 Pac. 309, 
folding nnconsHtutional Cal. Stat. 1897. p. 231, requiring all cor- 
pontioDs operating within State to pay employees once a montii, 
Mwl giving Uen on default: Bowlby v. Kline. 28 Ind. App. 661. 63 
^- E, T24, upholding as police regulation Bums' Rev. Stat., Ind. 
1*11. i <t463e, requiring order of circuit to make mortgages or notes 
ol aagoflations negotiable; I.., etc.. R. R. Co. v. Willlnms, 103 
lij. 378, 45 8. W. 230, uplioldlng repeal of charter provision m- 
Vol. 11 — 16 




100 U. S. 1-12 Notes on U. 8. Reports. 2 

quiring owner of stock killed by company to sue therefor wltl 
six months; Woodward y. Central Vermont Ry., 180 Mass. OOi, 
N. E. 1053, holding unconstitutional Laws Yt 1900, requirl 
railroad purchasing property of other road at foreclosure sale to p 
judgment against latter. 

Distinguished in San Joaquin, etc., Co. y. Stanislaus Co., 118 IN 
n-13, holding irrigation company organized under CaL Stat. 18 
[). 540, prohibiting county reducing rates below certain profit* its 
keeping tliem below, cannot complain of statutory reduction. 

Syl. 11 (IX, 772). Congress granting privileges controls Sti 
corporations. 

Approved in Southern P. R. R. Co. v. United States, 188 U. 
.')27, 46 L. 312, 22 Sup. Ct 157, holding where by same act la 
granted to two railroads overlaps each takes moiety thereof. 

SyL 12 (IX, 773). Act establishing sinking fund violates o 
tract. 

Approved In State v. Johnson, 61 Kan. 881, 00 Pac 1077, hold! 
unconstitutional chapter 28, Kan. Laws Spec. Sess. 1888, creatJ 
court of visitation, providing Jurisdiction, powers, and pcocedu 
such commingling the three departments. 



C UNITED STATES. 



too U. S. 1-6. Not cited. 

100 U. S. 6. 25 T.. 530, TINSMAN v. NATIONAL BANB:. 

Syl. 1 (IX, 774). Sum in dispute gives Jurisdictional amoimt; 

Approved In Hedrick v. Building Assn., 51 W. Ya. 423, 41 8. 
119. holding where sum appealable must exceed $100 no app 
where demand $95, $61.95 being admitted and recovery bel 
$104.83, $42.88 only being In dispute. 

100 U. S. 7, 8. Not cited. 

100 U. S. 8-12, 25 L. 536, SOULE v. UNITED STATES. 

Syl. 1 (IX, 775). Fifth auditor proper auditor, internal reveiiQC 

Approved In Harvey v. United States, 97 Fed. 455, holding 
complete transcript from books of treasury department cover 
portion of United States term no basis for Judgment agai 
sureties thirty-three years after term expired. 

Syl. 2 (IX, 775). Treasury book transcripts prima facie eyiden 

Approved in United States v. Butler, 114 Fed. 583. holding rests 

ment of accounts of acting paymaster of Bock Island arsenal i 



2<t Notes on U. & Reports. 100 U. 8. 1^-82 

soffldait to diarge him with alleged oTerallowances made therein 
iQT dakrten years before. 

100 U. & lS-23, 25 L. 538, BX PARTE REED. 

87L 2 (IX, 776). Nayy reflations have force of law. 

AniroTed in Glavey ▼. United States, 182 U. 8. 006, 45 L. 1252, 
21 SiqiL Gt 885, holding appointment of local hnll inspector by 
secretuy of treasory as inspector of foreign vessels under act An- 
gost 7, 1882, fixing compensation 92,000, entitled him thereto; In re 
^filler, 114 Fed. 842, holding minor enlisting nnder twenty-one with- 
ont paroits' consent required by Rev. Stat., U 1116-1118, amenable 
to military Jurisdiction! 

SjL 5 (IX, m). Habeas corpus cannot supplant writ error. 

AppToved in Deming ▼. McClaughry, 113 Fed. 650, holding writ 
of habeas corpn.<i proper to review erroneous Judgment of court- 
'I'ftitlal of regulars trying volunteer, Judgment being void by 77th 
^tide of war; Rose v. Roberts, 99 Fed. 949. holding Judgment of 
covrt^martial not reviewable by writ of habeas corpus except as to 
inriadictional questions. See 87 Am. St Rep. 203, note. 

Distinguished in In re Nevltt 117 Fed. 449, holding habeas 
corpua improper to relieve county Judges committed for contempt 
^ refusing to levy tax to pay Judgment against county. 

^1. 6 (IX, 777). Proceedings of court beyond Jurisdiction void. 

approved in Ex parte Cox, 3 Idaho, 537, 95 Am. St Rep. 36, 32 
^c. 200, holding void under Idaho Rev. Stat, | 6732, prescribing 
I^'^^ahment for assault with deadly weapon two years or less im- 
P'^ujnent sentence of five years. 

^^ tr. 8. 24-32, 23 L. 531, RAILROAD v. FRALOFF. 
^L 4 (IX, 778). Carrier may reasonably limit baggage liability. 

-Approved in The Kensington, 183 U. S. 271, 46 L. 191, 22 Sup. Ct. 
^* holding void arbitrary limitation of 250 francs for baggage of 
"^^mship passenger where no right to increase on paying more; 
"^ Queen of The Pacific, 180 U. S. 56, 45 L. 422, 21 Sup. Ct 281. 
^P^olding stipulation in bill of lading of goods shipped from San 
^^cisco to San Pedro requiring notice of loss within thirty days 
*^in shipment; The New England. 110 Fed. 418. holding unreason- 
^^^ limitation of liabUity of $50 to holders of first-cabin tickets on 
Atlantic steamship. 

^atinguished in Saunders v. Soutbem Ry., 128 Fed. 19, 20. bold- 
^ Inoperative carrier's contract signed by plaintifTs property- 
'^^^ without plaintiff's Icnowledge, releasing company from liability 
^ any loss to baggage. 

8yL 5 (IX, 779). Valid regulation requiring disclosure of value. 

Approved in The Priscilla. 106 Fed. 740, upholding limitation of 
'■^lity for loss of baggage by steamship company to $100. 






L. 



2- ;):rs. '='«'»:» "'»!i» - r::"^-""^ 



.»" ""1^.. B- "■ 



345 Notes on U. 8. Reports. 100 U. S. 43-61 

100 D. S. 43-4T. Xot clte.1. 

100 XJ. S. 47-55, 25 L. 514. FAIRFIELD t. COUNTY OF QAIr 
LATIN. 
SyL 1 (IX, TS4). Supreme Court following State court's conBtiuc- 
tion. 

ApproTcd Id MiddletowD Nat, Bank t. Toledo, etc.. Ry.. 12T Fed. 
S8, certifying lo Supreme Court questloD whether provision o( New 
lort Constitution Imposlnir Indivlilual liability upon stockholders 
was Belf-executotT. where State court silent: Whitman y. Citinene' 
Hink, 110 Fed, 507, holding action by creditors of Kansas corpora- 
tion to enforce etockholdera' Uabilliy under Gen. Stat. Kan., chap. 
^. S 32. transilorj-, enforeeahle in any JurlBdiction; Provident, etc., 

ieaur. Soc t. Hadley, 102 Fed. SCO. applying Mass. Acts ISH chap. 

^, S 73, in action on insurance policy, taken by citlacn thereof Id 

tie^ York company. 

Il» X). S. 55-tJl, 25 L. 547, COWELL v. SPRINGS CO. 
Syl. 1 (IX, TS5). Condition against selling Intoilcatlng liquors 

A-Kjproved in WnkeHeld v. Van Tassell. 202 111. 46. 47, G6 N. E. 

S32. upholding condition lu deed to small tract of land preventing 

liax».<3UDg of grain thereon or erecting building for that purpose: 

Fer-ria v. American Brewing Co., 155 Ind. 542. 58 N. E. 702, up- 

baldlag covenaot by lesse« to sell no beer on premises except that 

ol cwtain brewery; Gill t. Chicago, etc.. Ry., 117 Iowa. 280, 90 

N. "W. 806, holding right of way given In deed conditioning grant 

vn permanent user thereof reverts to grantor after eight yeara' 

DonuBer. See Dotes, 95 Am. St. Rep. 222. 79 Am. St. Rep. 762. 

ByL 2 (IX. 786). Colorado allows ejectment without demand. 

Approved In I.yman v. Suburban R. R. Co., 190 111. 329. 60 N. E. 

SIS, holding where right of way granted to railway on condition 

of maintaining railroad thereon forfeited by failure to do so, no 

"^^maiid tor fulHllment necessary. See 93 Am. St. Rep. 575, note. 

^tetlngnlahed in Union Pac. Ry. Co. v. Cook. 98 Fed. 284, hold- 

'"ff w-iiere land held on condition subsequent to be used Id partlcu- 

"^Qy was was'hE^d away before reaaonahle time for performance 

*-'**txneiit not available. 

°yi, 3 (IX, 786). Interstate comity allowing [orelgn corporate 

"f^'^tlon. 

■*£*tiroved In Coler v. Tacoma Ry. * Power Co.. 64 N. J. Eq, 134, 

■'^W, 686, holdlug New Jersey corporation empowered to bold 

"^ <lispose of property outside that State may purchase stock in 

"^lalngton corporation, Washington public policy not opposing; 

■ ^**le T, Mart'n. 175 N. Y. 321, 90 Am, St. Rep. . 6T N. E. 5S1, 

Boltli^g N. Y. Penal Code, i SB, governing perjury, appliea to officer 



100 U. S. Gl-71 Notes on U. S. Reports. 246 

of forel^ corporation required in borne State to swear to pald-Qp 
capital. 

Syl. 4 (IX, 78H). State must prohibit foreign corporations afDmia- 
tlvely. 

Approved in Floyd v. National Loan, etc., Co., 49 W. Va. 830, 88 
S. £. 657, holding foreign building and loan association complying 
with section 26, chapter 54,; Code W. Va., may operate in State 
same as domestic corporations. 

Syl. 5 (IX, 787). State alone questions necessity corporate land. 

Approved in Hagerstown Mfg. Co. y. Keedy, 91 Md. 438, 46 Atl, 
067, holding where deed of trust executed by beneficial assodatioii 
not fraudulent trustee cannot set aside on ground of ultra Tires; 
State y. ^tna Life Ins. Ck)., 69 Ohio St 327, 69 N. B. 611, holding 
Connecticut life insurance company empowered by charter to' oper- 
ate in other States and not prohibited by Ohio law or policy may 
operate therein; Coal Creek Min., etc., Co. y. Tennessee C, etc, 
R. R. Co., lOG Tenn. 667, 62 S. W. 166, holding under Tenn. Code 
1858, § 1474, enabling priyate corporations to hold realty and per-' 
sonalty to legal or necessity of business, lessee of corporation 
cannot question. 

Syl. 6 (IX, 788). Grantee estopped to impugn title conyeyed. 

Approyed in Deitch y. Staub, 115 Fed. 315, holding member of 
building loan association obtaining loan and executing mortgage 
estopped to question organization in foreclosure suit; Dy^yer y. 
Rohan, 99 Mo. App. 132, 73 S. W. 388, holding where defendant 
sold land subject to trust deed, securing note, and trustee sold land 
fraudulently to innocent purchaser, defendant relieyed against note; 
First English Eyangelical, etc.. Church y. Arkle, 49 W. Va. 94, 
' 38 S. E. 487, holding lessee of lot from church trustees sued in 
unlawful detainer cannot set up yiolation of W. Va. Code, chap. 
57, limiting church to necessary realty. 

100 U. S. 61-71. 25 L. 563, EMIGRANT CO. T. COUNTY OF 
ADAMS. 

Syl. 1 (IX, 789). State's good faith executing swamp grants. 

Approyed in Simpson y. Stoddard Co., 173 Mo. 456, 73 S. W. 706, 
707, holding under Mo. act March 27, 1868, proyiding for sale of 
swamp lands yested in counties for benefit of school fund, estab- 
lished trust only net proceeds. 

Syl. 2 (IX, 789). Congress enforces swamp land grants. 

Approyed in Stearns y. Minnesota ex rel. Marr, 179 U. 8. 282, 45 
L. 169, 21 Sup. Ct 76, holding contracts made between State of 
Minnesota and railroads, exempting from taxation in consideration 
of percentage of gross earnings, not in yiolation of Const., art. 0. 



247 Notes on XT. 8. Reports. 100 U. 8. 72-99 

Syl. 3 (IX, 789). State swamp land grants valid. 

Approved in Simpson t. Stoddard Ck>., 173 Mo. 454, 73 S. W. 706, 
holding county cannot question bona fide holder's title to swamp 
land sold by it thirty years before, on ground of defect in appoint- 
ing commissiouer to selL 

100 U. S. 72-78. Not cited. 

100 U. S. 78-81, 25 L. 550, RAILWAY CO. V. TWOMBLY. 

SyL 2 (IX, 701). Must except to instructions when made. 

Approved in Stemenberg v. Mailhos, 99 Fed. 40, holding insuffi- 
cient bill of exceptions to instructions which did not state sufficient 
evidence showing applicability or inapplicability thereof. 

Syl. 4 (IXf 791). Writ of error does not vacate Judgment. 

Approved in Ransom v. City of Pierre, 101 Fed. 069, holding 
removal of case by writ of error where record below simply re- 
examined and not tried de novo does not vacate Judgment prevent- 
^S its being pleaded. 

lOO XJ. S. 82-99, 25 L. 550, TRADE-MARK GASES. 

Syl. 1 (IX» 792). Trade-mark — Common-law property right in. 

^I>I>roTed in Biacmahon, etc., Ck>. v. Denver, etc. Go., 113 Fed% 
'^^^* liolding right to exclusive use of trade-marls depends upon 
lon^ vise identifying goods, hence company with limited trade had 
no such right to word " antiphlogistlne." 

Syl. 2 (IV, 793). Trade-marks not within Gongress' protection 

'^t>X>roved in Courier, etc., Co. v. Donaldson, etc., Co., 104 Fed. 
^^^^9 liolding chromo, or other print, useful only as advertisement, 
not ^^ithin protection of copyright statute. 

^^1. 3 (IX, 793). Commerce law must state scope. 

-^r^proved in United States v. Whelpley, 125 Fed. 617, holding 
^ Stat 9G3, penalizing importation into United States of lottery 
^cltets, does not apply to transportation from State to District of 
Columbia, or through States; Reilley v. United States, 106 Fed. 901, 
nphol<iiiig as commerce regulation act March 2, 1895, constituting 
^fffttiQe carrying from one State to another slips understood to 
reprosent interest of purchaser In policy game; dissenting opinion 
^ M:oreland v. Millen, 126 Mich. 406, 85 N. W. 891, majority up- 
"Oldixig portion of Mich, act 1901, creating office of superintendent 
^^ Public works of Detroit, as separable from void portion provld- 
^^g Ter provisional appointment 

®yl- 4 (IX, 793). Statute void where void part inseparable. 

'A.i>proved in Waters-Pierce Oil Co. v. Texas, 177 U. S. 42, 44 L. 
^^' ^ Sup. Ct 623, holding forfeiture of permission to foreign 



100 n. S. 100-104 Notes on D. S. Reports. S« 

corporntlon to operate In Stale on violating Tex. act 1889, Tiolafes 
no contract objection; Van Lear v. Elselc, 126 Fed. 830. holding 
void rules promulgated by seoretary of Interior under 2G Stat, &43. 
for regulating waters of Hot Springs reservation, wbicb restrict 
use of batbs to patients of accre<liteil ptiysiciana. 

Syl. 5 (IX. 794). Trade-mark acts 18T0 Invalid. 

Approved In Warner v. Searle, etc., Co.. 191 D. S. 202, holding 
Federal court has jurisdiction of bill charging infringement of trade- 
mark registered under 21 Stat at I^rge, 502; James t. Bowman, 
190 U. S. 141. 23 Sup. Ct. 6S0. 47 L. 983, holding Invalid as means 
of enforcing Fifteenth Amendment, V. S. Itev. BtaL, f 5507, pun- 
ishing persons bribing citizens to prevent their voting; Elgin Nat. 
Wiitch Co. V. Illinois Watch Case Co.. 179 U. S. 870, 44 L. 374, 21 
Sup. Ct. 272, holding geographical name Elgin cannot be registered 
as lawful trade-mark exclusively available for Elgin watches; 
A. Lesehen, etc., Sons Hope Co. v. Broderick. etc., B. Hope Co.. 123 
Fed. 151. refualng injunction against Infringement of trade-mart 
before complainant's right judicially determined, favorable decision 
of commlsaloner of patents not being such determination; Karem 
V. United States. 121 Fed. 259, holding improper Rev. Stat. | 5508, 
punishing conspirades to deprive citizens of constitutional privi- 
leges, since Fifteenth Amendment concerned only State abridgment 
of voting rights; Brennan v. Emery, etc.. Dry Goods Co.. 99 Fed. 
073, refusing injunction against infringement of alleged shoe trade- 
mark " steel shod," where defendant believed it merely descriptive 
and ceased use oii learning difterently; Scanuell v. Boston Elevated 
Ity., 17G Mass. 173. 57 N. E. 342. upholding instruction under Pub. 
Stat Mass., cbap. 169, permitting conviction of witness to affect 
credibility, that fact of Judicial overthrow of trade-mark law should 
be considered; dissenting opinion in Lottery Case. 18S U. S. 366, 23 
Sup. CL 331, 47 L. 505. majority holding carriage of lottery tickets 
between States by express company within commerce power of Con- 
gress, hence Congress may make carriage an offense against govern- 
ment; dissenting opinion In State v. Smiley. 65 Kau. 273. 275. 69 
Fac. 210. majority upholding Kan. antl-truet law (Laws 1897, chap. 
'265). prohibiting making of an ti -competitive grain agreements. 

Distinguished In State v. Smiley, 65 Kan. 251. 252. 251, 255, 68 
Paa 203, 204, upholding Kan. "AnU-trust Law " (Laws 1897, chap. 
265), prohibiting making of antl-cooipetitive grain agreement 
100 U, S. 100-104, 25 U 569, HURT v. HOLLINGS WORTH. 

Syl. 1 (IS, 794). Law and equity, separate. Supreme Court 

Approved in Fletcher v. Burt, 126 Fed. 621. holding bondholder of 
Insolvent railroad after foreclosure cannot sue at law In Federal 
court for himself and other bondholders; Files v. Brown. 124 
Fed. 138. holding order of sale by receiver reviewed In Federal 
court by appeal only; Uoovm, etc., Co. v. John Featherstone's Sons, 



^ 



■iVj Notes on D. 8. BeportB. 100 U. S. 104-119 

111 Fed. 86, bolilins review by Federal court at suit to foreclose 
meolwnic's Hen Is by appeal, not writ of error; Oravenberg v. Laws, 
lOO Fed. 4, refueing En legal action on contract Intervention of per- 
lODs clnimlng labor llcna for enforcement thereof and determination 
nf priority, tbough State merged law and equity. 
<IX, 19i). MlBceilaneouB. 

Approved in Carnegie Steel Co. v. Cambria Iron Co., 185 TJ. S. 
M. 46 L. 989, 22 Sup, Ct. 715. holding procesB claim of patent for 
lulxlug molten plg-lron. predomluent Idea being retention reaerrolr. 
Infringed by use of covered Tesael receiving metal from blast 
furnace. 

'»" U. S. 104-110, 25 L. 527, RICKER v. POWELL. 
Sfl. 1 (IX. 795). Bin review for new evidence discretionary. 
Approved In Camp Mfg. Co. v. Parker, 121 Fed. 196, refoslOB bill 
"' review for newly discovered matter consisting In fraudulent 
"""ffeainient of acreage of lot. where no effort made to ascertain 
'""1»; dissenUng opinion In Hendryx v. Perkins, 114 Fed. 823, 824, 
""■Jorliy balding reviewable on appeal bill to vacate decree for 
'""d being addressed to Judicial not absolute discretion of court. 
Olstiugulshed In Copeiand v. Bruolug, 104 Fed. 170, boldlng leave 
^^"t^nl to file bill of leview for errors on face of record no defense 
"■ner-^ 1)111 filed after six months' limit, leave being unnecessary. 

100 CJ_ 8. 110-112, 25 L. 547, ELASTIC FABRICS CO. v. SMITH. 
^Jl- 1 (IS. 7961. Pntent eipirlng during suit — Costa awarded. 
^I*X*roved In The Longfellow, 104 Fed. 308, upholding assessment 
of coa^fj, m admiralty case, such being sole basis of appeal; Foster 
V. EU^ fQ^jj Q[| gjp f.^ gg p^ Qj7_ refusing appeal from aaaess- 
"*"■*= of costs of reference to master. 

I^*- ^ tJngulshed In In re Michigan Cent. R. R. Co.. 124 Fed. 732, 
holdi.K~,g decree allowing costs to clerk of court under statute or 
"" 'S.'»:aantum meruit not discretionary, hence appealable. 
100 ~^:j g 113-119, 25 L. 587. LANSDALS v, DANIELS. 

^*^*.- 1 (IX, 787). SetUer's declaration before return map In- 
effecs -^ j,g 

■***»roved in Tarpey t. Madsen, 178 U. 8, 225, 44 L. 1047. 20 Sup. 
^^ ^to3, holding railroad laud grant takes precedence over mere 
''*'*^'*Xasncy of entryman who files no declaratory statement; Springer 
^- *-^Xopath, 20 Nev. 193, 65 Pac. 806, holding mere occupancy at 
Hm^ act June 16. 1880. listing land to State of Nevada, did not In- 
Tall <a a;g listing nor title granted by State. 

^^^X 3 (IX, 798). Declaratory Btstemenl by settler In California, 
■^^K^proved In Sprluger y. Clopaih. 28 Nev. 195, C5 Pac. 806, hold- 
tog %t]ere occupancy of lands in Nevada at time of act June 16, 1880. 




100 U. S. 11&-153 Notes on U. S. Reports. tBO 

listing lands to fitate, did not constitute appropriation Invalldatinf 
listing. 

100 U. S. 119-124. Not cited. 

100 U. S. 124^138, 25 L. 554, HATCH T. OIL CO. 

Syl. 1 (IX, 798). Unconditional sale without dellTery Tests title. 

Approved in First Nat. Bank, etc. v. C. D. Woodworth Co., 7 
Wyo. 19, 49 Pac. 408, holding creditor toolc no rights under bill of 
sale of goods made by debtor without notice to creditor where goods 
sold on credit by debtor. 

Syl. 9 (IX, 800). Value unascertained, goods delivered, title 
passes. 

Approved in Rastetter v. Reynolds, 160 Ind 140, 66 N. E. 014, 
holding acceptance of elm strips unnecessary, vendor having done 
enough to pass title if vendor had accepted to enable latter to sue 
for goods sold; Izett v. Stetson, etc.. Post Mill Co., 22 Wash. 308, 
GO Pac. 1129, holding title passed on delivery of log raft where 
price to be paid when logs scaled, hence loss after d^ivery fell 
on vendee; State v. Wharton, 117 Wis. 565, 94 N. W. 361, heading 
written contract purporting to convey present interest in lumber 
of certain grade, not for s&le from larger amount of same kind, 
passes title immediately. 

100 U. S. 138-145. Not cited. 

100 U. S. 145-147, 25 L. 590, MOOKE v. SIMONDS. 

Syl. 1 (IX, 801). Amendment curing appeal takes firm name. 

Approved in McDaniel v. Stroud, 106 Fed. 489, refusing to dismiss 
appeal from order allowing bankruptcy claim taken in name of cred- 
itors, where trustee refused use of his name. 

100 U. S. 147-148, 25 L. 591, PAVING CO. v. MULFORD. 

Syl. 2 (IX, 802). Codefendants cannot aggregate amounts for 

jurisdiction. 

Approved in Pugh Co. v. Wallace, 198 111. 427, 64 N. B. 1007, hold- 
ing no appeal by mechanic's lienor where individual lien separate 
from others joined therewith did not reach jurisdictional amount; 
Davis V. Upham, 191 111. 374, 61 N. E. 77, holding no appeal to Su- 
preme Court from order allowing mechanic's lien less than fl,000, 
though aggregate liens being joined below exceeded that amount. 

100 U. S. 149-153, 25 L. 573, CLARK v. TRUST CO. 

Syl. 1 (IX, 802). Upholding trustee's sale, fair, inadeguate price. 

Approved in Sharp v. Greene, 22 Wash. 693, 62 Pac 152, refus- 
ing to set aside sale of realty by executors for fraud and inadequacy, 
where expert valuations ranged from $1,500 to $2,000, price betng 
$1,800. iSee 92 Aql St Rep. 582, note. 



251 Notes on U. S. Reports. 100 U. 8. 158-208 

100 U. 8. 153-157, 25 L. 501, HINCKLEY T. RAILROAD CO. 

SyL 1 (IX, 808). State receiver coming- under Federal control. 

Apprt)ved in Central R. & B. Co. v. Farmers' L. & T. Co., 113 
Fed. ^407, holding receiver appointed by State court to succeed 
Federal receiver in suing latteT for accounting must allow as set- 
offs claims of Federal receiver against railroad; Kirker v. Owings, 
% Fed. 510, upholding order on accounting of receivership charging 
receiver personally with payment of debts incurred by him in 
towboat company. 

100 U. 8. 158-105, 25 L. 632. DOW v. JOHNSON. 

SyU 2 (IX, 803). Civil courts no jurisdiction — Hostile enemies. 

•^PX>xt>ved in dissenting opinion in Motherwell v. United States, 
107 £*«d. 448, majority holding writ of habeas corpus properly 
*®8tte^ by Federal court to release Russian deserter arrested by 
Uaite^cl States autHorities under Russian treaty 1832. 

^^CK^lnguished in dissenting opinion in Tucl^er v. Alexandroff, 
^^ tr. S. 458, 46 L. 278, 22 Sup. Ct. 200, majority refusing release 
on htt^beas corpus of Russian seaman brought to America as member 
^' ci"^^ of warship being buUt 

100 13^^ g 195.208, 25 L. 621, SAVINGS BANK v. WARD. 

°^^- 1 (IX, 804). Attorney impliedly promises reasonable care. 

®®^ 72 Am. St Rep. 3l5, note. 

®^^- 2 (IX, 804). Attorney not liable for every mistake. 

_ '^t^X^roved in Humboldt Bldg. Assn. v. Ducker, 111 Ky. 763, 64 

^^ • 672, holding attorney approving client's title without reporting 

®^^ held under statute whose repeal was doubtful, if acting 

^J^^*^xaably and bona fldely, not liable; Glynn v. Central R. R., 175 

^^^. 512, 78 Am. St Rep. 509, 56 N. B. 600, holding railroad com- 
^ ^^ not liable for patent defect, loose bolt in car, where car had 
^ ®^^^ inspection point when injury occurred. 

^^1* 5 (IX, 805). Attorney liable to client not strangers. 

'^X>X>roved in Singleton v. Felton, 101 Fed. 528, holding trespasser 
Construction train without knowledge of employees cannot hold 

**^I>any for negligence causing injury; Currey v. Butcher, 37 Or. 
V^» CI Pac. 635, holding error not to instruct that knowledge of 

^*^ixdant attorneys that employer acted as agent of wife was nec- 
^^^I'y to render defendants plaintiff's attorney. See 72 Am. St 
*^^I>- 317. nota 

distinguished in Allen v. Hopkins, 62 Kan. 183, 61 Pac. 753, 

^*^tiig where abstractors were ordered to deliver abstract by one 

^*i^ for both parties to exchange of property, privity exists and 
' o^^^^^^^ors liable to both; Peters v. Johnson, 50 W. Va. 647, 41 

• ^^. 191, 192, holding druggist liable to third person for injuries 
^ttx^ng from latter's talking medicine prescribed for another by 



100 U. S. 208-226 Notes on U. S. Reports. 2S2 

Syl. 8 (IX, 806). Attorney held by strangers for negligence. 

Approved in Standard Oil Co. v. Murray, 119 Fed. 575, holding 
engineer cannot sue oil company for injuries received from ex- 
plosion of defective oil sold by company to his employer; Young ▼. 
Lohr, 118 Iowa, 626, 627, 92 N. W. 685, holding abstractor lUUe 
to owner of land for errors in abstract made on request of agent 
who concealed agency; Synms v. Cutter, 9 Kan. App. 212, holding 
searcher of records liable for errors only to person for whom 
abstract made; Pittsfield Cottonwear Mfg. Co. v. Shoe Ca, 71 
N. H. 532, 53 Atl. 810, holding one contracting to heat building 
liable to tenant on lower floor for damage caused by breaking of 
pipe in attic due to failure of fires; McCaffrey v. Mossberg, etc. 
Mfg. Co., 23 R. I. 387, 50 AtL 653, 91 Am. St Rep. 612, holding manu- 
facturer not liable to employee of vendee of drop press for injuries 
caused by breaking of hook therein. 

Distinguished in Marquardt y. Ball Engine Co., 122 Fed. 376, hold- 
ing defendant furnishing engine to plaintiflTs intestate's employer, 
in which different kind of valve was placed, not liable for death 
caused by valve*s defective operation; Huset v. J. I. Case Thresh- 
ing Mach. Co., 120 Fed. 868, holding threshing machine manu- 
facturer liable to employee of vendee injured by falling into cylinder 
by failure of inadequate covering. 

100 U. S. 208-213. 25 L. 603, PHILLIPS v. MOORE. 

Syl. 1 (IX, 806). Texas sale to alien passed title. 

Approved in Strickley v. Hill, 22 Utah, 266, 62 Pac. 895, holding 
alien who by enlistment signified intention of becoming citizoi, 
entitled under Rev. Stat, i 2319, to locate unoccupied mineral lands. 

100 U. S. 213-226, 25 L. 612, HOUGH v. RAILWAY CO. 

Syl. 1 (IX, 807). Master must guard from unnecessary perils. 

Approved in O'Brien v. Chicago, etc., Ry., 116 Fed. 505, holding 
invalid under Code Iowa, i 2071, imposing liability upon railroads 
for neglig^ice, not to be shifted by agreement, contract of express 
messenger assuming risks; Hodges v. Kimball, 104 Fed. 752, hold- 
ing in action against railway for death of employee while coupllni^ 
cars, company relieved where it had provided proper rules for in- 
spection of cars; Pool v. Southern Pacific Co., 20 Utah, 215, 58 Pac 
328, holding company liable for death of employee caused by neg- 
ligence of switchman endeavoring to couple car under which de- 
ceased was known to be working. See 75 Am. St Rep. 598, note. 

Syl. 2 (IX, 808). Master must furnish reasonably safe appliances. 

Approved in Chochtaw, Oklahoma, etc., R. R. Co. v. Holloway. 191 
U. S. 338, holding where absence of brakes on defendant's engine 
evidenced negligence, failure of court to charge that company only 
bound to exen^lse reasonable care harmless error; Choctaw, Okls- 
homa, etc., B. R. Co. v. Tennessee, 191 U. S. 331, holding erroneous 



Hough V. Railway CJo. 100 U. S. 213-220 

<*^«"X"Se to Jury failing to state employer's obligation satisfied by 
^^^^^'ciise of reasonable precaution not reversible error where cured 
*>iy r«8t of charge; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 
^^^ XJ. S. 67, holding company liable for death of brakeman knocked 
^^^^"oa. top of freight car at night by water spout extending over 
^»I> of cars, affirmiqg 112 Fed. 891; Patton v. Texas & P. R. R. Co., 
^'^^ XJ. S. 664, 45 L. 365, 21 Sup. Ct. 278, holding company not liable 
fox* fireman's injury on falling from defective step while cleaning 
^■^S'lxie en route, where inspection at end of trip would have dib- 
^^^>»e^; Western Union Tel. Co. v. Tracy, 114 Fed. 284, holding com- 
^^^-^^.y^ liable for injuries due to breaking of noninspected pole where 
^^^^^^Knan was delegated the duty of inspection, affirming 110 Fed. 
^^>^Z The Noranmore, 113 Fed. 369, holding ship not liable to long- 
*^^^>x*«man for Injury received from breaking of hook which was 
'^^^^sonably safe for work done; In re California Nav. etc., Co., 110 
^^<^- 673. holding under Code Civ. Proc. Cal., I 377, steamship com- 
llable for death of fireman killed by explosion of steam drum 
c^h was not properly inspected; Ellis v. Northern Pac. Ry., 103 
'. 417, holding railroad liable for injuries received by plaintifT, 
l^r repairer, falling from unsafe running-board of engine, fore- 
having directed him to stand thereon; Mason, etc., R. R. Co., v. 
:ey, 103 Fed. 269, holding question of plaintiff's negligence In 
Lining on engine with defective valve stem, allowing escape 
^^vater which froze, plaintiff slipping on ice question for jury; 
ci-innati, etc., Ry. Co. v. Gray, 101 Fed. 628, holding railroad 
Jver liable for death of switch hand caused by derailment of 
due to defendant's lack of instructions as to operation of new 
it:ch; Garnett v. Phoenix Br. Co., 98 Fed. 195, holding bridge 
pany not liable to defendant for injuries received by fall due 
breaking of wrench where breaking could not reasonably be 
Icipated; Port Blakely Mill Co. v. Garrett, 97 Fed. 539, holding 
^^^■^■^^pany liable for breaking of defective standards on lumber 
^ **^ plac^ therein by coservants of plaintiff; Harvey v. Alturas 
Mln. Co., Ltd., 3 Idaho, 522, 523, 31 Pac. 822, 823, allowing 
'Overy for Injury from unsafe mine pump where plaintiff re- 
^^^«ted permission to repair same but was refused; Chicago, etc., 
^R Co. V. Lee, 29 Ind. App. 494, 64 N. E. 680, holding erroneous 
^Tuction as to defendant's duty to furnish safe appliances not 
*^Mi by giving correct charge ih contradiction without withdrawal; 
^^:^lt8on V. Pittsburg, etc.. Lumber Co., 52 La. Ann. 1114, 27 So. 
holding defendant liable for injury received by plaintiff from 
-mway saw-mill engine, where engine was old and unsafe and in 
»>»ge of incompetent engineer; Hall v. Emerson-Stevens Co., 94 
■- 450, 47 Atl. 925, holding defendant liable for death of intestate 
^sed from breaking of grindstone which appeared to be lacking 
<?ohesive qualities; Zellars v. Missouri Water, etc., Co., 92 Mo. 
^- 127, holding master light company liable for Injury to work- 



100 U. S. 21&-226 Notes on U. & Reports. 2U 

man doe to unfinished repair of hot-water pit, serrants of pre- 
ceding shift faUing to inform plaintiff; Carroll t. Tidewater Oil CSo^ 
67 N. J. L. 684, 52 Atl. 277, holding company liable for injury to 
laborer resulting from falling of fly-wheel from punching machine 
where employer should have inspected it; International, etc^ R. R. ▼. 
Johnson, 23 Tex. GiT. 188, 55 S. W. 788, holdipg railway company 
placing switch on curve and grade must exercise care commensurate 
with added danger of such switch; Hill v. Southern Pac Co., 23 
Utah, 102, 63 Pac. 816, upholding recovery by car repairer for In- 
juries received by breaking of decayed candlesticks on which re- 
paired car was resting; Konold v. Rio Grande, etc., Ry. Go., 21 Utah. 
398, 60 Pac. 1024, 1025, holding improper instruction that plaintiff 
did not un<[ertake risks arising from defective machinery, his con- 
tract Implying that defendant would make provision against sucb 
risk. See notes, 75 Am. St. Rep. 592, 597, 606, 623, 62& 

SyL 3 (IX, 811). Fellow-servant rule an implied rlslc. 

Approved in O'Brien v. Chicago, etc., Ry., 116 Fed. 506, holding 
invalid under Code Iowa, i 207, Imposing liability upon railroad for 
negligence of servants prohibiting contract exemption, contract 
of express messenger assuming risks; Brewster v. G. & N. W. Ry. 
Co., 114 Iowa, 145, 86 N. W. 222, 89 Am. St. Rep. 349, holding where 
no statute alters fellow-servant rule, brakeman has no remedy 
against company for injury from being thrown from car by en- 
gineer's sudden stop. 

Distinguished in Shannon v. Consolidated Tiger, etc., Min. Co., 24 
Wash. 132, 64 Pac. 173, holding where defendant delegated duty to 
member of outgoing shift to inform incoming shift of missed holes, 
employees may recover for negligence of Informer. 

SyL 4 (IX, 811). Corporation's guarantee as to safety of em- 
ployees. 

Approved in Westinghouse, etc., Mfg. Co. v. Heimlich, 127 Fed. 
93, holding defendant not liable for death of servant caused by 
breaking of chain apparently sound but crystalized and bought 
of rentable dealer. 

Distinguished in McQueeny v. Chicago, etc., Ry., 120 Iowa« 524. 
94 N. W. 1125, holding master not liable for injury to savant by 
caving of bank due to nature of soil while plaintiff was working 
on steam shovel. 

Syl. 5 (IX, 812). Fellow servants must be same department. 

Approved in Cumberland Tei., etc., Co. v. Bills, 128 Fed^ 275, 
holding telephone company liable to lineman for injury doe to 
failure of foreman to perform duty of inspection of poles, d^egated 
to him by company; Brush Electric, etc., Co. v. Wells, 110 Ga. 197. 
35 S. E. 367, heading engineer in electric company's power-house 
and lineman handling wires fellow servants within Ga. Civ. Code, 
i 2610, exempting master from liability excepting railroads; Dobson 



29S Hough T. Railway Go. 100 U. S. 21&-226 

^' ^ew Orleans, etc., R. R. Co., 52 La. Ann. 1135, 27 So. 678, holding; 
foreman of dirt train can recover for injury sustained in collision 
^th cow at night, where accident contributed to by conductor's 
^Jesertf OB of train. 

I>i8tlxiguished in Hobson v. New Mexico, etc., R. R., 2 Aris. 182, 
11 Pao. 550, holding teamster hauling ties in railway construction 
^ot fe*llow servant with engineer on train on which workmen ride 
to dJnz&er. 

Syl. o (IX, 814). Continuing after promise not negligence. 

Approved in Musser-Santry Land, etc., Co. v. Brown. 126 Fed. 
144, boiding employee using short-handled ax to dislodge log chains 
tnistlti.^ to ability to escape falling logs not entitled to recover 
thougti longer handle promised; Cudahy Packing Co. v. Skoumal, 
125 F"^^ 473^ holding where plaintiff complained of defective ham- 
mer ^x^^ defendant promised to supply new one on completion of 
Job. la^-tter liable for loss of plaintiffs eye; Kenney v. Meddaugh, 
118 B^e^, 214, holding fireman acquainted with road taken io assume 
risK :r]Tom mail crane placed thirteen and one-half inches from 
side or engine; Hemingway v. Illinois Cent. R. R. Co., 114 Fed. 846, 
bol^l]^^ where defendant's train running much in excess oi rate 
^^^^'^'ed by statute collided with dccedenVs wagon, evidence being 
co^^ctlng, latter's contributory negligence question for Jury; Llm- 
^^« V. Glenwood Lumber Co., 127 Cal. 602, 60 Pac. 177, holdiug 
^^••^ickater cannot recover for injuries received by fall from wagon, 
^^^Ring no seat and too short lines where such had been used 
^'^^ eleven months; McFarlan Carriage Co. v. Potter, 153 Ind. 115, 
^ ^. SL 468, holding defendant having promised plaintiff to fix 
"I^Sa-w table liable for Injuries to latter resulting from subsequent 
°®^^epair; Dempsey v. Sawyer, 95 Me. 302, 49 Atl. 1038, uphcrfdlng 
^^^^iet of Jury that plalntiCTs return to work on promise of de- 
'^^ant to repair circular saw from which Injury receivod shifted 
'**^ to defendant; Mann v. Lake Shore, etc., Ry. Co., 124 Mich. 644. 
^. W. 597, holding right of employee injured by defective pump 
^ely upon employer's promise to repair made thirty days before 
2^^8tion for Jury; Adolff v. Columbia, etc.. Co., 100 Mo. App. 207, 
^- W. 323, holding plalntiCTs operation of dough-knecdini; machine 
^hich she was unaccustomed, on threats of discbarge by forr^ 
p/^^an, did not constitute negligence in law; Taylor v. N. C. O. Ry., 
^ev. 427, 69 Pac. 859, holding where engineer notified employer 
*^"^ tender rolled on truck, receiving promise to repair, question 
-^ ^^ther danger too Imminent to warrant continuance for Jury; 
jj^^« ▼. Eureka Paper Co., 174 N. Y. 392, GG N. E. 981, 95 Am. St 
^- 585, upholding employee's right to recover for injury from rag 
_ ^^ef where he complained of absence of belt shifter and continued 
Q» *^«c on promise to repair within week; Virginia, etc., Whtel Co. v. 
^•Ucley, 98 Va. 68, 34 S. E, 978, holding defendant promising 



I 



100 U. S. 22G-250 Noles OQ D. S. Reports. 256 

plalntirr to repnlr defective pulley on circular aaw liable for Injury 
received thereafter, where plamtlEf not contributorlly ncgligeni; 
Green r. Western Am. Co., 30 Wnah. 109, "0 Fac. 318, lioldlns 
under BaU. Ann. C«des & Slat., j 3178, Washington, requiring mine 
operators to supply timber for mines, latter cannot plead wnployee'a 
assumption of risk; Ci-ooker y. Paclflc, etc., Co.. 29 Wnsh. 39, b'S Pac. 
362, holding where plalotiff injured by rip saw two weeks aftor 
promise to place guard thereon, question of reliance for jury; dls- 
sentlDg opinion !n St. Louis Cordage Co, v. Miller, 126 Fed. 517. 
majority holding dang» being apparent plaintltt operating forming 
maehine requiring moving of lever near traprotected cogs cannot 
recover for Injuries; dissenting opinion in Roccia v. Black Diamond 
Coal Mln. Co., 121 Fed. 459, majority upholding instruction that If 
risks were bo obvious that reasonably prudent man would not aa- 
sume them, plaintiff an experienced man in working was contrlbu 
torily negligent; dissenting opinion In Choctaw, etc., R. R. v. Hoi 
loway, 114 Fed. 466, majority holding servant assumes all ordinary 
risks of employment known to him or which he should know, bere 
servant Ignorant of defect and recovered: dissenting opinion in 
sang V. Morgan. 109 Fed. 454, majority holding plaintiff could not 
recover from injury from explosion on ground unsafe tools where he 
used tamping bar In queetion three months without objecticn. 

Distinguished in 6L I^ouls Cordage Co. v. Miller, 128 Fed. 498, 510. 
holding plaintiff operating forming machine requiring moving of 
lever near unprotected cogs cannot recover for injury to hands In 
cogs, danger being apparent; Mayott v. N'orcross Bros., 24 R. 1. 194. 
62 Atl. 806. holding where plaintiff without coercion endeavored 
to unload granite slabs without assistance and was injured, be was 
taken to have assumed risk, 
100 U. S. 22G-234. 25 L. 577, CRAIG v. SMITH. 

Syl. 2 <IX, 818). Allowing new evidence on review discretionary. 

Approved In Keith v. Alger, 124 Fed. 3T, refusing bill i.f revlem 
on ground of newly discovered evidence liiat plaintiff had sold lands 
In question pending suit, where result not affected; Hendryx v. Per- 
kins, 114 Fed. 808, holding bill to Impeach prior decree for fraud 
an original bill, hence decree thereon vacating prior decree final and 
appealable: Boston, etc., El. Ry. v. Bemls Car-Box Co., 98 Fed. 12S, 
holding defendant in infringement suit barred by laches to set up 
newly discovered evidence ten years after litigation begun, sole de- 
fense having been anticipation. 
100 D. 8. 235-238. Not cited. 
100 U.S. 239-250, 25 h. 590, DATES v. NATIONAL BANK. 

Syl. 2 (IX. 818). Courts should enforce spirit of statute. 

Approved in Tsoi Sim v. United States, 116 Fed. 926, holding 28 
Stat 7, requiring resident Chinese laborers to obtain certificates 



^ 



257 Notes on U. S. Reports. 100 U. S. 251-802 

of residence within six months, not applying to Chinese woman law- 

fully tkGre. 

8jl 3 (IX, 819). Federal courts independent in commercial law. 

Appmr^^yed in Northern Assnr. Co. t. Grand View Bldg. Assn., 183 

0. 8. 34^, 46 L. 290, 22 Sup. Ct 148, holding insurance company noc 

waived. condition against other insurance because agent knew 

thereof » policy forbidding agent to waive; Manship v. New &out)i 

Bldg., ^tc, Assn., 110 Fed. 858, holding where by-laws of buildiug 

associ^trion provide payments by and to members to be made at 

home office, laws of home office govern; Bank of Saginaw v. Title 

& Trta.iBt Co., 105 Fed. 492, holding certificate of deposit of trust 

comvmja:M,y a negotiable instrument; Limerick Nat. Bank v. Howard, 

71 N. :^ 19, 83 Am. St Rep. 495, 51 AU. 644, holding indorsee in 

blank of note payable in Vermont entitled to have question of bona 

fides ^labmitted to Jury pursuant to Vermont practice; dissenting 

opini(^:c^ in Shaw v. Cable Co., 79 Miss. 604, 31 So. 228, 89 Am. St. 

Kep. ^-72, upholding in suit in Mississippi, Gen. Stat. Mass. 1860, 

P- 375^ { 10^ requiring additional payment for safe delivery of mes- 

^ough Mississippi law control. See 89 Am. St Rep. 672, 

^ (IX, 820). Holder underdue note, collateral fair holder. 

'oved in Adler, etc.. Sons v. Corl, 155 Mo. 155, 55 S. W. 1018. 
under Mo. Acts 1891, p. 171, making illegal conveyance 
g usurious debt giving mortgage to secure debt where 
Interest paid, not vendor liable to attachment. 

^ (IX, 821). Penalty of national banking act exclusive. 

-oved in First Nat. Bank of Dalton v. McEntire, 112 Qa. 234, 
i. 382, holding penalty of Rev. Stat., S 5198, on national banks 
usurious exclusive, hence Georgia act Invalidating waiver 
lestead where usurious not afTect bank's liability. 

S. 251-^257, 25 L. 626, TRENOUTH v. SAN FRANCISCO. 

4 (IX, 822). No pre-emption against prior occupant 

roved in Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 
'1, holding land not open to settlement as forest reserve lieu 
^nder 30 Stat. 36, where locators were thereon exploring for 
•oil "^^^^^^ugh none found. 

^^^"^ Anguished in Thallmann v. Thomas, 111 Fed. 279, upholding 
loOB-t^^^n Qf mining claim by defendant where plaintiffs were mining 
-tti^^^^^^ underground but had not taken possession. 

-^OO '^^^ S. 257-502, 25 L. 648, TEXNE^SSEE v. DAVIS. 

6^^* 1 (IX, 823). Indictment oflicial act — Revenue collector re- 

approved in In re Laing, 127 Fed. 216, holding Federal court has 
^t^^^^icticm of habeas corpus to question imprisonment of United 
^ VoL II — 17 




100 U. S. 303-312 Notes on U. S. Reports. 

States marshal indicted for Icilling strilcer resisting arrest; Petors 
V. Malin, 111 Fed. 254, holding Iowa Code, § 4761, prohibiting taking 
of children from one having lawful charge, inapplicable to give 
State jurisdiction over Sac and Fox Indians; State v. Adler, 67 Ark. 
477, 55 S. W. 853, holding where officer of land department is 
charged in State court with ofTense committed in discharging duties 
State court cannot question Federal court's release. 

SyL 2 (IX, 823). Suits for violating State laws removable. 

Approved in In re Fair, 100 Fed. 151, holding State court with- 
out jurisdiction over military officer killing escaping soldier charged 
with desertion; Ward v. Ck)ngress Const. Co., 99 Fed. 605, holding 
suit in State court against corporation to enjoin building of addition 
to post-office under contract with secretary of treasury removable 
to Federal courts. 

Syl. 3 (IX, 824). Construing law or treaty Federal question. 

Approved in Patton v. Brady, 184 U. S. 611, 46 L. 716, 22 Sup. Ct. 
494, holding suit to recover against internal revenue collector sum 
paid under protest raised Federal question, constitutionality of 
revenue act, June 13, 1898; United States v. Dietrich, 126 Fed. 678, 
holding senator-elect before acceptance not member of Congress 
within Rev. Stat, § 1781, making criminal taking of bribe by member 
of Congress; Tift v. Southern Ry. Co., 123 Fed. 793, holding Federal 
courts have jurisdiction of controversy pending before interstate 
commerce commission to enjoin increase of lumber freight rates; 
Manigault v. S. M. Ward, etc., Co., 123 Fed. 711, upholding Federal 
jurisdiction in case restraining building dam under 24 Stat at Large 
S. C. 246, where such act alleged unconstitutional and amount in- 
volved exceeding $2,000; E. A. Chetfield Co. v. City of New Haven, 
110 Fed. 792, holding private suit to enjoin bridge declared by secre- 
tary of war to be unreasonable obstruction under 30 Stat. 1153, raises 
Federal question. 

Syl. 4 (IX, 824). State's local administration of law exclusive. 

Approved in Anderson v. Elliott 101 Fed. 613, holding United 
States marshal ejecting defendant pursuant to writ of Federal 
court not subject to arrest by State authorities. 

100 U. S. 303-312, 25 L. 664, STRAUDER v. WEST VIRGINIA. 

Syl. 1 (IX, 826). Fourteenth Amendment to secure negro rights. 

Approved in State v. Montgomery, 94 Me. 203, 47 Atl. 167, holding 
invalid Me. Laws 1893, chap. 282, 306, providing for licenses to 
hawkers and peddlers issuable to any citizen of United States, 
discriminating against aliens. 

Syl. 2 (IX, 827). Excluding negro jurors violates Fourteenth 
Amendment 

Approved in Rogers v. Alabama, 192 U. S. 231, 24 Sup. Ot 259, 
holding unconstitutional action of State court in overruling for 



Notes on U. S.' Reports. 100 U. S. 313-^338 

prolixity negro defendant's motion to quash indictment on ground 
of exclusion of negroes from grand Jury; Carter v. Texas, 177 U. S. 
^^47, 44 L. 841, 20 Sup. Gt 689, holding exclusion of negroes from 
srand jury indicting negro, such exclusion being based on color 
solely, deprives accused of equal protection of law; People of State 
of New York v. Bennett, 113 Fed. 519, upholding Penal CJode 
^. Y., i 351, punishment for Iceeping rooms to sell pools, where de- 
fendant did not comply with Laws 1895, chap. 570, permitting sell- 
ing on certain racecourses; Allen v. Allen, 97 Fed. 530, holding 
equity will not set aside Judgment in ejectment on grouud that it 
impaired obligation of contract; State v. Peoples, 131 N. C. 791, 42 
S. S. 815, 816, holding selection of whites alone for Jury service 
binder N. C Code, i 1782, making taxes, character, and intelligence 
^*^ly tests deprives accused negro of protection of laws; Bullock v. 
State. 65 N. J. L. 563, 86 Am. St Rep. 672, 47 Atl. 63, holding fact 
^t Jury to try colored man contained no negro, where such omis- 
B'on not designed, does not deprive defendant of protection of laws; 
SnUUi V. State, 42 Tex. Cr. 221, 58 S. W. 97, holding exclusion of 
^cgtx>«s from jury commission and from jury convicting accused 
^'epri^ed him of protection of laws. 

^^ XT, S. 313-538, 25 L. 667, VIRGINIA v. RIVES. 

^^1. 2 (IX, 829). Fourteenth Amendment equalizes civil rights. 

'^I^lkroved In Missouri v. Dockery, 191 U. S. 171, holding Individ aal 
^^^'^^^otly taxed cannot complain that corporation is exempted; State 
^" ^^amer, 165 Mo. 416, 65 S. W. 588, holding erroneous refusal of 
**^'^^ed's request under Mo. Const. 1875, allowing presence of 
**^^a€d for personal defense, to be brought into court to challenge 
^'^^a jurors.. 

„ ^^1, 3 (IX, 830). Fourteenth Amendment applies exclusively to 

-^r>proved in James v. Bowman, 190 U. S. 136, 23 Sup. Ct 678. 47 
~^ ^Sl, holding invalid as means of enforcing Fifteenth Amendment 

• ^- Rev. Stat., i 5507, for punishment of persons who by bribery 
P'^e'v^nt citizens from voting; Karem v. United States, 121 Fed. 26»>, 
"Rifling improper Rev. Stat, S 5508, punishing conspiracies to de- 
^^^^ any citizen of constitutional privileges, since Fifteenth Amend- 

^^tfc-t touched voting rights only and concerned State actions; 

Huxi^ V. Searcy, 167 Mo. 181, 67 S. W. 213, holding void proceedings 

'^^^i- Mo. Rev. Stat. 1845, p. 593, providing for commitment of 

™®^Xie persons without notice to insane to appear before brought 

befox-e court 
^distinguished in United States v. Morris, 125 Fed. 323, holding 

^^»t>iracy to prevent negroes from leasing and cultivating land 
consjjiracy within Rev. Stat., i 5508, protecting rights guaranteed 
^y Constitution; Eastling v. State, 69 Ark. 192, 62 S. W. 585, ovw- 
ruuikM> defendant's motion to quash indictment for exclusion by Jury 



100 U. S. 339-^70 Notes on U. S. Reports. 

commissioners from grand Jury, where exclusion was not based on 
color. 

Syl. 7 (IX, 831). Negro not entitled to colored jurors. 

Approved in Bullock t. State, 65 N. J. L. 563, 86 Am. 8t Rep. 072, 
47 Atl. 63, holding nonintentional exclusion of negroes from jury 
no deprivation of colored defendant's rights; State v. Peoples, 131 
N. G. 791, 42 S. E. 810, holding selection of whites alone for JurcNrs 
under N. C. Ck>de, i 1722, making only tests, taxpaying, character, 
and intelligence, deprived negro defendant of protection of laws; 
Whitney v. State. 43 Tex. Or. 199, 63 S. W. 880, holding presence of 
two negroes on grand Jury indicting defendant prevented complaint 
of equal protection where negroes formed about one-sixth of popula- 
tion; Whitney v. State, 42 Tex. Cr. 285, 59 S. W. 896, holding indict- 
ment of grand jury from which competent negroes were purpose 
excluded will be quashed; Carter v. The State, 39 Tex. Cr. 855, 48 
S. W. 510, holding indictment returned against negro by grand jnrj 
fiom which negroes were excluded violates Fourteenth Amendment. 

100 U. S. 339-370, 25 L. 667, EX PARTE VIRGINIA. 

Syl. 2 (IX, 832). Habeas corpus to examine court's authority. 

Approved in In re Reese, 107 Fed. 949, holding habeas corpns 
proper remedy to secure discharge from imprisonment for contempt 
in violating injunction where prisoner was not party to suit; De 
Bara v. United States, 99 Fed. 945, denying habeas corpus to review 
sentence of District Court under which plaintiff was imprisoned 
in house of correction, on several • charges for three years, maxi- 
mum for each offense being eighteen months. 

Syl. 4 (IX, 834). Officer depriving liberty violates Fourteenth 
Amendment 

Approved in Jew Ho v. Williamson, 103 Fed. 24, holding inyalld 
San Francisco quarantine regulations isolating twelve blocks of 
territory containing 10,000 persons because of death of nine from 
plague, allowing free internal intercourse; Western Union, etc^ Ck>. 
T. Ferguson, 20 Ind. App. 221, 59 N. E. 419, recommending to Su- 
preme Court decision of telegraph damage suit against allowance 
of damages for mental anguish, though Indiana law allowed such 
damage; dissenting opinion in Taylor and Marshall v. Beckham (Na 
1), 178 U. S. 600, 44 L. 1209, 20 Sup. Ct 890. 1014, majority holding 
decision of State tribunal against claimant for office of governor 
deprives .claimant of no right to property within Fourteenth Amend- 
ment. 

Syl. 7 (IX, 835). Fourteenth Amendment extends to civil rights. 

Approved in James v. Bowman, 190 U. S. 136, 23 Sup. Gt 678, 47 
L. 981, holding invalid as means of enforcing Fifteenth Amend- 
ment U. S. Rev. Stat., § 5507, penalizing persons bribing citizens to 
prevent voting; Karem y. United States, 121 Fed. 256, 257, holding 



201 Notes on U. S. Reports. 100 U. S. 371-399 

improper Bey. Stat, i 5508, punishing conspiracies to deprlTe citi- 
lens of constitutional priTileges, since Fifteentli Amendment cov- 
ered only Toting rights and concerned only States; Riverside & A. 
Bj. Co. V. City of Riverside, 118 Fed. 742, holding repudiation of 
contra.ct to furnish electric power by exercising conferred on cor- 
poration by State is within Fourteenth Amendment; Indiana, etc^ 
Gas Ck). Y. State, 158 Ind. 521, 63 N. E. 221, holding under Four- 
teentb Amendment ordinance authorizing gas company to charge 
certalxi rates does not require uniformity of method, but prevents 
oppressive discrimination; State v. Montgomery, &4 Me. 203, 47 AtL 
168, l^(^dlng invalid as discrlmmation against aliens Me. Laws 
18^ providing for granting of peddlers' licenses to any citizen of 
United States filing certain certificate; Andrus v. Insurance Assn., 
168 ^ifto. 164, 67 S. W. 58, upholding practice of allowing insured 
V9io\ ^waiver of terms of policy without alleging waiver In petition, 
insnrsjice companies being proper subject of classification; Hunt v. 
Searcy, 167 Mo. 181, 67 S. W. 213, holding void proceedings under 
Ho. fiev. Stat 1845, p. 503, providing for commitment of insane 
person without notice to appear before bringing him before court. 

I>iBtingui8hed In United States v. Morris, 125 Fed. 323, holding 
^^nsj^iracy to prevent negro citizens from leasing and cultivating 
land Is conspiracy to deprive of rights secured by Constitution 
within Rev. Stat, § 5508; Parks v. State, 159 Ind. 217, 64 N. B.. 86, 
QPboiaing Bums' Rev. Stat Ind. 1901, H 7318, 7323e, making It un- 
lawful for any person to practice medicine without license; State 
^. Peoples, 131 N. C. 792, 42 S. B. 816. holding selection of whites 
exclusively as jurors under N. C. Code, i 1722, only test being 
character, intelligence, and taxpaying, deprives negroes of protection 
of la-w. 

100 TJ. s. 371-399, 25 L. 717, EX PARTE SIEBOLD. 
Syl. 1 (IX, 836). Supreme Court relieving by habeas corpus. 

-Approved in Bx parte Lucas, 160 Mo. 267, 273, 276, 61 S. W. 229, 
231, 232, holding barber arrested for following barber's occupation 
without registering as required by Mo. Rev. Stat 1899, chap. 78, 
™*y <^oxitest constitutionality of law on habeas corpus. 

^istinguigiied In dissenting opinion In Ex parte Lucas, 160 Mo. 

'• «1 S^ W, 237, majority holding barber arrested for following 
^^^Patlon without registering as required by Mo. Rev. Stat 1899, 
^y* oxi habeas corpus, contest constitutionality thereof. 

^** 3 (IX, 837). Habeas corpus not mere writ error. 

^"^^Ugulshed in Cohn v. Jones, 100 Fed. 641, refusing habeas 
n>xx^ ^ relieve defendant extradited from Canada for burning 
^^ ^H Iowa, such being crime In Canada. 

• ^ (IX, 838). No Jurisdiction, only ground habeas corpus. 
^^'^^^^oved in Mackey v. Miller, 126 Fed. 163, holding defendant 
^ ^oued for resisting Indian agent, such constituting no offense 



^^^1 100 U. S. 300^30 Notes on U. 8. Reports. 262 

^^^H against government, entitled to release on habe&s corpus; Moore Y. 

^^^H Wheeler, 109 Ga. 62. 35 S. B. 110, lioldinj; babeas corpus awarded 

^^^^M to one convicted under unconstitutional law of selling spirituous 

^^^1 liquors. See notes. 87 Am. St. Bep. 174, ITS. 

^^^^1 Syl. 6 (IX, 838). Haboae corpus — Jurisdiction, authority, con- 

^^^^H Btitutionalitj', In vesti gated. 

^^^H Approved In Anderson t. Elliott. 101 Fed. 013. holding United 

^^^^1 States marshal compelled to use force lu executing writ and ar- 

^^^^H rested therefor may be released on habeas corpus. 

^^^1 Syl. 10 ax, 810}. Double Boverelgnty — Person amenatile to 

^^^H Approved in United States v. Morris. 125 Fed. 324. upholding 

^^^^P Rev. Stat. U. 8., S 19T8, protecting civil rights aimed at preventing 

^^^^1 conspiracies against negroes; B: parte McLeod, 120 Fed. 143, up- 

^^^^1 holding District Court's power to punish for assault upon commts- 

^^^^1 sioner appointed by said court, regardless of State laws; Files v. 

^^^^1 Davis, 118 Fed. 406. holding actlou on attachment bond executed 

^^^^B in suit pending in Federal court presents Federal question. Rev. 

^^^^1 Stat., i 915. making State remedies available in Federal courts; 

^^^B Ex parte Young. 36 Or. 250. TS Am. St. Rep. 774. 59 Pac. 70S, np- 

^^^^1 holding as police regulation Hill's Anno. Laws Or., f 1952. for- 

^^^^H bidding any one to persuade seamen to desert vessel In waters of 

^^H State; dissenting opinion In Giles v. Harris, 189 U. S. 491, 23 Sup. 

P Ct. 648, 47 L. 914. majority dismissing bill of negro against board of 

registrars In Alabama for refusing to allow qualified blacks to 
•f register. 

I 100 D. S. 399-422. 25 L. 715. EX PARTE CLARKE. 

Syl. 1 (IX, 842). Habeas corpus relieving conviction unconstitu- 
tional law. 

Approved In Moore v. Wheeler 109 Ga. 62. 35 S. E. 116. holding 
defendant Indicted for selling spirituous liquor In violation of 
Ga. Acts 1882-83, alleged unconstitutlonKl, released on babeaa 
corpus. 

SyL 4 {IX, 843). Congress punishing State congressional election 
ofBcers. 

Approved In Files y. Davis, 118 Fed. 467. holding under Rev. Stat., 
i 015, mablng State laws applicable In Federal courts, action on 
attachment bond In suit pending In District Court within Federal 
Jurisdiction. 

100 U. S. 423-430. 25 L. 688, PACKET CO. v. ST. LOUIS. 

Syl. 1 (IX. 844). City charging wharfage according to tonnage. 

Approved In Atlantic & Pacific Tel. Co. v. Pliiladelphia, 109 
U. S. 163, 23 Sup. Ct 818, 47 L. 1000, upholding license fee imposed 
by city Philadelphia upon telegraph company engaged In Interstate 




263 Notes on U. S. Reports. 100 U. S. 430-456 

commerce; Ck>n8olldated Goal Ga t. Illinois, 185 U. S. 207, 46 L. 
876, 22 Snp. Ct 617, upholding 111. act May 28, 1879. appointing 
mine inspectors, limited to mines employing over five men. In- 
spectors to be paid from bureau of labor statistics; Portland ▼. 
Montgromery, 38 Or. 224, 62 Pac. 758, holding under 26 Stat 454, 
^ prohibiting building wharf outside harbor line without consent 
of secretary war, city may regulate wharf line within harbor. 

Distinguished in City of St Louis v. Consolidated Coal Co., 158 
Mo. ^4^ 59 S. W. 105, holding invalid license fee imposed by St 
Louis ordinance, f 232, upon boats towing crafts in and out and 
aroanct harbor, such not being for wharf priyileges. 

100 IT. S. 430-133, 25 L. 690, VICKSBURG ▼. TOBIN. 

SyL J, (IX, 845). City charging wharfage according to tonnage. 

Approved in City of St Louis ▼. Consolidated Coal Co., 158 Mo. 
348, 59 S. W. 105, holding invalid license fee imposed by St Louis 
ordinajice, f 232, upon boats towing crafts in and out and around 
iMWbor, such not being for wharf privileges. 

100 U. S. 434-144, 25 L. 743, GUY v. BALTIMGRE. 

Syl- 1 (IX, 846). Discriminating wharfage fees interstate com- 
merce unconstitutional. 

-Approved in Minneapolis Brewing Go. v. M'Gillivray, 104 Fed. 
^08, holding unconstitutional Sess. Laws S. Dak. 1897, chap. 72, im- 
P^^^ST license tax of $600 on wholesale. liquor dealers except home 
manufacturers, who pay $400 manufacturers* tax; State ex rel. 
Bump y. Omaha, etc.. Bridge Co., 113 Iowa, 35, 84 N. W. 985, holding 
i^^^onstitutional Council BlufTs city ordinance giving residents spe- 
cial rates on street railroad; Commonwealth v. Petranlch, 183 Mass. 
^^^> 06 N. E. 808, holding unconstitutional portion Mass. Rev. 
^^B, chap. 100, f 1, allowing sale without license by makers of 
'^tlve wines, requiring license in other cases; State v. Zophy, 14 
^' I^ak. 125, 84 N. W. 393, 86 Am. St Rep. 745, holding unconstitu- 
tiouai s, x>ak. Sess. Laws 1897, chap. 72, imposing wholesale liquor 
liceugQ tax on foreign manufacturers, local manufacturers paying 
ic^er manufacturers* license. 

distinguished in Austin v. Tennessee, 179 U. S. 344, 46 L. 227, 
^^ Sup. Ct. 132, upholding as police regulation Tenn. Acts 1897, 
chap. 20, prohibiting sale of cigarettes within State, or bringing 
^^^arettes in to sell. 

^^ Cr. s. 444, 445. Not cited. 
^^ Cr. s. 446-456, 25 L. 695, CASE v. BANK. 
^^'- 2 (IX, 848). Banks bound by cashier's acts. 
"^Pl^xroved in HaUett v. Fish, 123 Fed. 202. holding plaintiff ad- 



^^ -M money to cashier, concealing bank's Insolvency, entitled to 
_^^^^x portion received by receiver, and subrogated to dividends of 
^^^'■^ placed in reserve bank. 



100 U. S. 457-482 Notes on U. S. Reports. 264 

Distinguished in Ellis ▼. First Nat. Bank of Woonsocket, 22 B. I. 
570, 574, 48 Atl. 938, holding assignees of insolvent corporation 
knowing treasurer of corporation was also cashier of defendant 
bank cannot enforce latter's agreement to transfer corporation 
deposit to assignee. 

100 U. S. 457-482, 25 L. 5»3, REMOVAL CASES. 

Syl. 1 (IX, 849). Construing removal act 1875 — Dlrerse citizen- 
ship. 

Approved in Missouri, K. & T. R. Co. v. Hickman, 183 U. S. 58, 
46 L. 83, 22 Sup. Ct. 20, holding removable suit by> Missouri railroad 
commissioners under Mo. Rev. Stat 1899, to restrain Kansas rail- 
road from violating rate orders. State not being real plalntifT; 
Rochester German Ins. Co. v. Schmidt, 126 Fed. 1003, upholding 
Circuit Court's Jurisdiction of suit by one of several insurers liable 
pro rata to compel assignee of policies to adjust Insurers' liability 
in equity; Carroll v. Chesapeake, etc.. Coal Agency, 124 Fed. 311, 
holding suit by coal merchant against individual defendants for in- 
stigating strike preventing coal companies from supplying coal 
removable, since companies not necessary parties; Seaboard Air 
Line Ry. v. North Carolina R. R. Co., 123 Fed. 630, holding lessee 
of railroad may remove suit to condemn right of way though lessor 
and original owners residents, they not being necessary parties; 
Ross V. Erie R. R. Co., 120 Fed. 704, holding defendant sued Jointly 
with another for death of intestate may remove suit where co- 
defendant not interested and Joined to prevent removal; Beese t. 
Zlnn, 103 Fed. 97, holding removal of suit to cancel lease not de- 
feated because merely formal parties citizens of same State as de- 
fendants, no relief being sought against them; Marrs v. Felton, 102 
Fed. 778, holding receiver of Kentucky railroad sued Jointly there- 
with by Kentucky citizen for death of intestate cannot, though 
citizen of Ohio, remove to Federal courts; Jarvie v. Crozier, 98 
Fed. 755, holding plaintiff suing In different State for partition of 
property therein not prevented from removing suit because unan- 
thorizedly suing as next friend of resident infant 

Distinguished in Goodwin v. New York, N. H. & H. R. R. Oo^ 
124 Fed. 307, holding railroad incorporated in both Connecticut and 
Massachusetts cannot be sued in Federal courts by Massachusetts 
citizen for tort committed in latter State; Mexican Nat Coal, etc, 
Co. V. Macdonell, 105 Fed. 268, refusing removal of suit for account- 
ing for coal lands where all defendants not Join in petition as re- 
quired by 30 Stat 1002. 

Syl. 2 (IX, 852). Cannot question removal petition because un- 
signed. 

Approved in Howard v. Gold Reefs, 102 Fed. 657, holding no 
verification of petition for removal needed where made in good 



■jr^' 



Notes on U. S. Reports. 100 U. S. 483-491 



•''.'fl]. \Tliorc record showed all facts except citizenship which was 

%1. 7 (IX, 853). State retaining until removal case made. 

-^PI> roved in Green v. Heaston, 154 Ind. 128, 56 N. B. 88, refusing 

Jviuo-v-iii of suit to set aside conveyances where petitidn alleged 

<Ji verse residence at time complaint filed instead of diverse citizen- 

^hip XV- hen suit begun; Debnam v. Southern Bell Tel. Co., 126 N. C. 

^*. 3C5 S. E. 271, holding foreign corporation becoming domestic by 

^^omiiH^jQg with N. C. Pub. Laws 1809, by filing copy of charter and 

by-Ja-ws, cannot remove suit of citizen; dissenting opinion in Calvert 

V. Rix i iway Co., 64 S. C. 149, 41 S. B. 966, majority holding railroad 

^^^'^X^orated under laws of Virginia becoming domestic by com- 

pliaix^:^e with S. C. act March 19, 1896, nonresident of South Car- 

olln^ lor Jurisdiction. 

^^^- 8 (IX, 854). Trial under protest loses no rights. 

'^^^X)roved in Sid way v. Missouri Land, etc., Co., 116 Fed. 31H5, 
uoI<].X:^g nonresident corporation having filed petition and removal 
"^'^^^ does not lose right to remove by resisting appointment of 
'^^^^"ver in State court; Hicl^man v. Missouri, etc., Ry., 97 Fed. 120, 
holi^j^jjg where State court refused petition of Kansas railroad for 
'^'^^^^val of suit by Missouri commission, defendant's appearing in 
^^'^^ court not bar removal later. 

*"^*"1. 11 (IX, 856). Agreement to pay no equitable assignment 



X^proved in Rufe v. Commercial Bank, 99 Fed. 653, holding 
P'^'^z^ise by debtor to pay from proceeds of Judgment in pending 
ftct:l.^-jn no equitable assignment; BaumhoflT v. St. Louis, etc., Ry., 
^^^ Mo. 128, 71 S. W. 150, 94 Am. St. Rep. 775, holding claimant 
"'^^^^r mechanic's lien may enforce same though money due him 
'^^^^^ by trust company withholding it on instructions from other 



<IX:x, 849). Miscellaneous. 

.pproved in Central Grain & S. Exch. v. Board of Trade, 125 
L 469. holding special appearance of corporation to quash ser- 
on officers for insufficiency, It not being shown that corpora- 
was operating within State, not waiving irregularity; North 
terican Transportation, etc., Co. v. Howells, 121 Fed. 698, holding 
>osition taken by commission before beginning of term in which 
fendant must file record or removal inadmissible in evidence; 
"^ :iinsylvania Co. v. Leeman, 160 Ind. 18, 19, 66 N. E. 49, upholding 
^nsal of petition to remove where petition not made until amended 
mplaint had been filed after answer and loss of original com- 
aint 

^^:>0 U. S. 483-491, 25 L. 628. HAUENSTEIN v. LYNHAM. 

Syl. 1 (IX, 856). Alien's original citizenship presumed to con- 
^^«iue. 

Distinguished In Kadler v. Pavik, 9 N. Dak. 279, 83 N. W. 5, hold- 



¥ 



100 U. S. 401-)!)9 Notes on U. S. Reports. 

lug where alien lias taken out no citizenship papera, but has voted, 
presumption of alienage disappears. 

Syl. 4 (IX, 856). Governments may give aliens rights therein. 

Approved In Blythe v. HiDckley, ISO D. S. 342. 45 L. 5G2. 21 Snp. 
Ct. 394, npholdlng Cal. Civ. Code, j 671, enahling alien to Inherit 
and hold property within State, afflrmlng, 127 Cat. 437, 59 Psc 788. 

Syl. 5 (IX, 856), Allen's alien heirs entitled to proceeds. 

Approved In Bahnaud v. Blze. 105 Fed, 48S, holding InoperaUve 
US against French aliens enahled by French treaty to Inherit land 
In America Nebraslta law Incapacitating aliens from acquiring 
property. 

Syl. 7 (IX, 857). Treaty rights paramount to State legislation. 

Approved in illssentlng opiniou In Id re Terrlll, 6G Kao. 327. 71 
Pac. 592, refusing release on habeas corpus of Olilaboma prisoner 
Incarcerated la Kansas prison, pursuant to contract made by gov- 
ernor of Oklahoma. 

Dlatinguiahed in Blythe v. Hinckley. 127 Cal. 435, 59 Pac. 788, 
upholding Cal. Civ. Code, i 671, enabiing aliens to take, bold, or 
dispose of property, construing same to confer right to inherit 

{IX, 850). Miscellaneous. 

Approved in Ireland v. Mackintosh, 22 Utah, 308. 61 Pac. 904, 
holding note liarred by expiration of four-year statute not revlTed 
by passage of six-year statute before uote bad run four. 
100 D. S. 491-499, 25 L. 558. KIHTLAND v. H0TCHK1S8. 

Syl. 1 (IX, S5S). Sopreme Court not reviewing State taxes. 

Approved In French v. Barber Asphalt Paving Co., 181 U. S. 337, 
45 L. 8S7. 21 Sup. C£. 620, upholding apportionment ot entire cost 
of street pavement upon abutting lots, without a hearing; Hull t. 
Alexander, 69 Ohio St. 85, 08 N. E. 843, holding county treasurer'a 
action under Ohio Rev. Stat. 18S2, fi 2S59, must be for recovery ot 
taxes charged on duplicate for current year, or delinquent duplicate; 
dissenting opinion in Germanla Trust Co. v. San Francisco, 12S 
Cal. 601, 602, 61 Pac. 182. majority holding where mortgaged rail- 
way property is taxed at full value, bonds of railroad not assess- 
able, such beljg double taxation. 

SyL 2 (IX, 3o8). Debt taxable at creditor's domicile. 

Approved in Pyle v. Brenaeman, 122 Fed. 789, holding deposit 
in bank Is debt having situs for taxing purposes In domicile of 
depositor; Rnckpiber v. Moore, 104 Fed. 950, holding account Of 
French woman against New York not taxable to nonresident 
'laughter to whom they were beciueatlied; Fort Smith v. Scruggs. 
70 Ark. 555. 69 S. W. 681, 91 Am. St. Rep. 104, upholding Ark. 
Acts 1901, p. 113, Buthorlziug tax for keeping and using wheeled 
reb'cles, being tax for use of roads, not on Tehiclea; Estate o 



ling wheeled ■ 

itste of Fslr, I 



267 Notes on U. S. Reports. 100 U. S. 500-535 

128 Gal. 614, Gl Pac. 186, holding bonds on foreign railroad operat- 
ing in State taxable to resident owner under Cal. Const, art. 13, 
proTiding all property shall be taxed; Corey v. Baltimore City, 96 
Md. 322. 53 Atl. 943, upholding under Maryland bill of rights, art. 
15, taxing ^11 persons " holding property therein." tax on stock of 
domestic corporation owned by nonresident; Frothingham ▼. Shaw, 
175 Mass. 60, 78 Am. St. Rep. 476, 55 N. E. 624, holding stocks and 
bonds of decedent held by his agent in New York pass under law 
of domicile of decedent, subject to Massachusetts inheritance tax; 
Territory v. B. & L. Assn., 10 N. Mex. 347, 62 Pac. 1101, holding 
shares in building and loan association, whether pledged or un- 
pledged, are subject to taxation. 

100 U. S. 500-507. Not cited. 

100 U. 8. 508-514, 25 L. 631, UNITED STATES v. BOWEN. 

SyL 2 (IX, 860). Revised statutes unless doubtful supplant old. 

Approved in Idgersoll v. Holt, 104 Fed. 683, holding Rev. Stat., 
I 4915, giving applicant for patent remedy by bill in equity for re- 
fusal of patent applies to reissue also; Lloyd v. Supreme Lodge K. 
of P., 98 Fed. 71, holding change in conditions of policy, pursuant to 
by-laws, reducing recovery for death superinduced by alcoholism, 
such provision takes efTect If alcoholism arose after by-laws; John- 
son y. Wells, Fcrgo & Co., 98 Fed. 7, holding express company 
cannot, under Rev. Stat., § 643, remove suit because of shipper's 
refusal to furnish required revenue stamp. 

100 U. S. 514-535, 25 L. 699, MOUNT PLEASANT v. BECKWITH. 
SyL 1 (IX, 802). Legislature may alter municipality's powers. 

Approved in Atkin v. Kansas, 191 U. S. 221, 24 Sup. Ct. 127, 
apholding Kan. Gen. Stat. 1901, 8§ 3827-3829, penalizing contractors 
for working employees more than eight hours a day. 

Distinguished In State v. Barker, 116 Iowa, 103, 89 N. W. 206. 
holding invalid Iowa Code, i 747, authorizing District Court to 
appoint trustees of water-works in cities of first class. 

SyL 4 (IX, 863). County takes annexed territory's debts. 

/ iproved In Lodi v. Hackensack Imp. Comm., 60 N. J. Eq. 230, 
46 AtL 782, holding borough set off from township* not liable on 
indebtedness Incurred by township previous to division; McCully 
v. Tracy, 66 N. J. L. 490, 49 Atl. 436, holding township of Ridge- 
fleld liable on Judgment obtained against its board of education 
prior to division of territory; Ranken v. McCallum, 25 Tex. Civ. 
8ft, eo S. W. 976, holding town corporation succeeding another em- 
bracing same territory liable for drainage bonds of predecessor. 
though latter had only de facto existence; National Foundry, etc., 
Works V. Oconto City, etc., Co., 105 Wis. 55, 81 N. W. 128, holding 



100 U. S. 535-563 Notes on U. S. Reports. 268 

reorganized corporatioD not a continuation of old corporation and 
not liable for liabilities of old company to mortgagees. 

Syl. 5 (IX, 864). Towns annexing immediately entitled to tax. 

Approved in dissenting opinion in People ex reL Manhattan Ry. 
Go. V. Barker, 165 N. Y. 330, 59 N. E. 150, majority holding dam- 
ages paid to abutting property-owners on account of elevated rail- 
way's interference with light before right of way acquired not 
assessable assets. 

Syi. 7 (IX, 864). Extinguished municipality's creditor's right in 
equity. 

Approved in P'Esterre v. New York, 104 Fed. 607, holding NefW 
York city liable on Gravesend bonds, city of Greater New Ybrk 
including Gravesend in its limits. 

100 U. S. 535-538. Not cited. 

100 U. S. 539-^47. 25 L. 705, PEOPLK v. WEAVER. 

Syl. 1 (IX, 865). Valuation is part of tax assessment 

Approved in Galusha v. Wendt, 114 Iowa, 604, 87 N. W. 514, np- 
holding Iowa Code, $ 1374, providing for collection of taxes from 
property-owners on property omitted from assessment within fire 
years before action brought; Southern Ry. Go. v. Kay, 62 S. C 
30, 30 S. E. 786, upholding tax levy of one-half of one mill on rail- 
way property levied by county commissioners for road purposes 
under 22 Stat, at Large, South Carolina. 

Syl. 2 (IX, 865). Revisel Statutes, $ 5219, construed. 

Approved in Nevada Nat Bank v. Dodge, 119 Fed. 60, upholding 
Pol. Code Cal., § 3609, providing for deducting from assessment of 
shares a sum equivalent to proportion borne by exemption of 
whole property to value of aggregate shares; First Nat Bank t. 
Covington, 103 Fed. 529, holding Invalid Stat Ky., $ 4077, provid- 
ing for taxation of franchises of all corporations, as applied to 
national banks; Appendix, 97 Me. 598, holding unconstitutional 
proposed Maine law fixing higher rate of taxation upon lands out- 
side than those within incorporated towns; Cleveland Trust Co. v. 
Lander, 62 Ohio St 271, 56 N. E. 1038, upholding taxation of Cleve- 
land Trust Company based upon return of United States bonds 
held by company. 

Distinguished in Mercantile Nat. Bank v. Mayor, 172 N. Y. 49, 
64 N. E. 761, refusing in equity to restrain collection of tax on 
national bank stock at actual value, though realty assessed at 60 
per cent. only. 

100 U. S. 548-563, 25 L. 710, NEWTON v. COMMISSIONERS. 

Syl. 1 (IX, 869). State's legislative control over offices complete. 

Approved in dissenting opinion in Taylor v. Vann, 127 N. C. 249, 
37 S. E. 265, majority holding where term of contested dffice ex- 



20 Notes on U. S. Reports. 100 U. S. 564^71 

piled pending appeal, appeal being futile, dismissed; dissenting 
opinion in White v. Ayer, 126 N. C. 610, 36 S. B. 144, majority hold- 
ing under N. O. Laws 18d9, creating shell-flsh commission, continu- 
ing duties of oyster inspection under repealed laws 1897, oyster 
Inspector entitled to office with salary provided; dissenting opinion 
in Gattis v. Griffin, 125 N. C. 336, 34 S. E. 480, majority holding 
county officers on board of education have property right in office 
not destroyed when act establishing office amended. 

Syl. 2 (IX, 869). Public laws, governmental subjects, not con- 
tracts. 

Approved in Taylor and Marshall v. Beckham (No. 1), 178 U. S. 
577. 44 L. 1200, 20 Sup. Ct. 900, holding decision of Kentucky court 
adverse to claim to governorship deprived claimant of no property 
to give Supreme Court Jurisdiction on writ of error; Swartz v. 
Board, etc., 158 Ind, 154, 63 N. E. 36, upholding Ind. Acts 1897, p. 
236, and 1899, p. 566, establishing superior courts in towns outside 
county seats, such being no removal of county seat; State ex rel. 
Saunders v. KoJmke, 109 La. 842, 33 So. 794, upholding act of 
Louisiana legislature amending organization of water and sewerage 
board, established by prior statute; Deer v. Dachiell, 91 Md. 667, 47 
AtL 1041, granting mandamus to new appointee as secretary of 
county school commissioners to compel old secretary to deliver 
booiu, term of appointment not having expired; State v. Bacon, 
14 S. Dak. 408, 85 N. W. 609, upholding S. Dak. act March 2, 
1901, limiting term of appointees to fill vacancies on board of 
charities to time until next legislative session; dissenting opinion 
in Abbott V. Beddingfield, 125 N. C. 277, 278, 34 S. E. 418, majority 
holding railroad commission established by N. G. Acts 1891, not 
destroyed by Acts 1899, changing name to corporation commission, 
retaining former duties. See 94 Am. St. Rep. 380, note. 

SyL 4 (IX, 870). State contracts — Express terms, clear impli- 
cation. 

Approved in SnoufTer v. C. R. & M. City Ry. Co., 118 Iowa, 305, 
82 N. W. 860, upholding city ordinance requiring removal of street 
railway tracks from position occupied pursuant to ordinance passed 
six years prior to repealing ordinance; State v. Meek, 112 Iowa, 345, 
84 N. W. 5, upholding Iowa Code 1897, § 2548, declaring dam with- 
out fishway a nuisance where dam when granted to defendant con- 
tained no fishway. 

100 U. S. 564-571, 25 L. 735, MEEKS v. OLPHERTS. 

Syl. 3 (IX, 871). California — Administrator barred, heirs barred 
also. 

Approved in Webb v. Winter, 135 Cal. 457, 67 Pac. 692, holding 
mortgagee's possession after foreclosure for period of six years 
bars action of delaying life tenant who was also executrix; Taft t. 



r 



100 U. S. 571-584 Notes on V. S. Report*. 270 

Decker, 182 Mass. 110. S5 N. E. 508, holding wbere lands devlaea 
lo E. In trust were deeded away by bim and held for twenty j-ean. 
trnHtee"8 title estlnguiBbed; Jenkins v. Jensen, 24 Utah, 124, 127, 
91 Am. St. Rep. 781, 794. (i6 Pac. 777, 778. holding under Utah 
Coinp. Laws 18T6, heir minor at time right accrued barred by t.'wo 
yeara' delay of administrator to bring action to recover 
property. 

(IX, 871), MlGcellaneoUB. 

Cited in diflsenting- opinion In Bryan t. Finney, 3 Aria. 40, SI, 
Pac. 335, majority holding under Aria. Rev. Stat., i 764, perniltt-i»>( 
plaintiff lo take nonsuit before Jury retired, not prejudicing deCC^ 
ant's affirmative claims, Involuntary nonsuit improper. 
100 n, S. 571-578. Not cited. 
100 U. S. 578-584, 25 L. tns, DICKERSON v. COLGROVB. 

Syl. 1 (IX, 872). Misleading language or conduct grouDi^^»| 
estoppel. 

Approved In American Surety Co. v. Ballman, 115 Fed. 293, hold 
ing surety company paying Judgment without indemnitor's congent. ' 
when latter was relieved from defending suit by agreement, es- 
topped thereby from suing indemnitors; Given v. Times- Republican 
Printing Co., U4 Fed. 95, holding sale stockliolder of corporation 
to whom corporation was Indebted, estopped by silence toward 
vendee of stock concerning such indebtedness, estopped to enforce 
same; Bryan v. Pinney, 3 Ariz. 421, 422, 31 Pac. 549. 550. tiolding 
where mortgagee appointed by widow as administrator foreclosed 
mortgage, assigning sale to defendants, plain tifTs assignees of 
widow's right to redeem estopped after three years; Datton v. Ren- 
tarla. 2 Ariz, 2S0, 15 Pac. 38, holding landowner allowing another 
to Irrigate fleids for over sixteen years, in belief he hod vested 
right, estopped by Inaction to deny such right; McDonald v. Beatty, 
10 N. Dak. 520. 8S N. W. 284, holding owner of mortgaged land 
redeemed by pl.iintlff bona flde estopped to allege oral contract of 
purchasers at foreclosure to bold title as security only; Gionnonattl 
V, Mlcbelletti et al.. 15 8. Dak. 133. 87 N. W. 589, holding one taking 
conveyance from mortgagee before purchaser at sale had fully paid 
mortgagee estopped to question latter's title by receiving payments 
ostensibly for mortgagee; Sutton v. Con., etc.. MIn. Co., 14 S. Dak. 
40,84 N.W.213, holding manager of mining company procnring loans 
secured by mortgage, using money on property, estopped to set up 
miner's Hen, which he had concealed when advances made; Murpby 
V, Ganey, 23 Utah, 641. 66 Pac. 193, holding wife estopped by laches 
to question husband's conveyance after divorce, where she con- 
veyed before divorce and husband wrongfully recorded deed with 
her knowledge; McConnell v. Rowland. 48 W. Va, 279. 37 S. B. 5S7; 
holding grantor estopped to set up title, where deed, held subject 





2T1 Notes on U. S. Reports. 100 U. S. 585-594 

to Joint order of grantor and grantee, stolen from depositoiy and 
pa^ssed to fair purchaser; dissenting opinion In Berwind-White Coal 
AiClii. Go. Y. Martin, 124 Fed. 310, majority liolding lessor of mine 
Ila.l>l€ for agreed royalties, ten cents per ton for 75,000 tons per 
y^SLT' under ten-year lease, though abandoning lease; dissenting 
oi>iiiion in Modem Woodmen of America v. Union Nat Bank, 108 
^^^^€1. 763, majority holding defendant banlL issuing certificate of 
<loi>osit to plaintiff order of Woodmen to prevent plaintiff's account 
^I>I>earing on their banker's banks not estopped to show; dissenting 
oi>itiion in M'Master v. New York Life Ins. Co., 09 Fed. 880, ma- 
Jox-ity holding parol agreement made between insured and insur- 
***^oe company's agent relative to time policy to take effect creates 
'^o e-stoppel against company. See 88 Am. St. Rep. 777, note. 

^distinguished in Bradford v. Hanover Ins. Co., 102 Fed. 52, 
^'^l^llng defendant Insurance agent not estopped to deny forgery 
^^ liis name on policy by clerk authorized only to solicit, collect 
^'^^rniums, and deHver policies. 

Syl. 2 (IX, S74). Bstoppel In pals available in ejectment 

-A^pproved In Sullivan Timber Co. v. Mobile, 110 Fed. 197. holding 

^^^y estopped by implied license to build wharves over shore and 

^^^t>nierged lands, and by taxing same, to destroy property rights in 

^^^ch wharves; Roland Park v. Hull, 92 Md. 310, 48 Atl. 309, re- 

^^«iDg injunction to restrain action at law for nuisance In main- 

^^^^ning garbage* field, plaintiff's defense of estoppel based on de- 

^^n^ant's prior knowledge available at law; Murray Hill, etc., Co. 

'^- Havenor, 24 Utah, 80, 66 Pac. 765, holding under Utah Comp. 

^^w-s 1888, $ 3916, surrendering possession of mining claim to cor- 

I>oi-ation for shares therein raises estoppel passing title by opera- 

^*ou of law; Appleton Mfg. Co. v. Fox River Paper Co., Ill Wis. 

"^■•O. 87 N. W. 455, holding under Wis. Rev. Stat. 1898, ff 2056, 

^^TS, permitting equitable defenses as counterclaim, estoppel being 

'^'Vailable at law not proper as counterclaim. 

SyL 4 (IX, 875). Quitclaim grantee not bona fide purchaser. 

Approved in Trice t. Comstock, 115 Fed. 768, holding where op- 
tion given on land was assigned as part of scheme to sell for 
Viigber price, assignee of option not innocent purchaser entitled to 
accounting; Messinger v. Peter, 129 Mich. 99, 88 N. W. 211, holding 
unrecorded deed superior to quitclaim deed from same grantor. 

I>l8tingui8hed in Boynton v. Haggart. 320 Fed. 822, holding sub- 
s^uent purchaser of lands conveyed by warranty deed may rely 
on record title. 

^^ U S. 585-594, 25 L. 585, COUNTY OF CASS v. GILLETT. 

^y^ 1 (IX, 875). Constitution 1865 inapplicable to existing cor- 
'^'^tions. 
approved In Joseph v. Southern Ry., 127 Fed. 607, holding con- 



100 U. S. 595-613 NotelS on U. S. Reports. 272 

solldated company not liable under special act S. O. 1902, Fetmi- 
ary 19th, where Code S. C. 1902, §§ 2050-2053, provided continuance 
of constituent companies* liability for their torts; Commercial Bank, 
etc. V. Sandford, 103 Fed. 101, holding S. C. 20 Stat at Large, 49, 
requiring petition to authorize levy of special school tax, not affect' 
ing powers created by subsequent special act; Carpenter t. Greene 
County, 130 Ala. 631, 29 So. 198, holding binding under Ala. act 
1868, §§ 514-520, authorizing county railroad stock subscription, 
subscription of county off the road, hence not within later special 
act. 

Syl. 3 ax, 876). Fair holder not charged with notice. 

Approved in Picl^ens Township v. Post, 99 Fed. 663, holding bona 
fide purchaser of municipal bonds before maturity not charged with 
constructive notice of suit testing validity of such bonds. 

100 U. S. 59&-590, 25 L. 647, RAILROAD CO. v. COLLECTOR. 

Syl. 2 (IX, 876). Congress may tax corporate earnings. 

Approved in United States v. Thomas, 115 Fed. 210, npholdinj^ 
stamp tax schedule of revenue act 1898, requiring stamp on trans- 
fers of stock, such not being direct tax; dissenting opinion in Terre 
Haute R. R. Co. v. State, 159 Ind. 490, 65 N. E. 418, majority hold- 
ing under Ind. tax law 1847, p. 77, corporation liable to pay sorplqs 
profits from road, pursuant to above act 

100 U. S. 599-605. Not cited. 

100 U. S. 605-613, 25 L. 892, SHAW v. RAILROAD CO. 

Syl. 1 (IX, 877). Railway mortgage trustee representing bond- 
holders. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 225, holding 
where receiver Intervening in foreclosure suit against corporation 
property loses, the decree binds all parties to suit in which receiver 
was appointed; Fletcher v. Ann Arbor R. R. Co., 116 Fed. 481, 
holding in absence of fraud in trustee beneficiary in mortgage deed 
cannot avoid sale after confirmation and distribution of proceeds; 
Woods V. Woodson, 100 Fed. 519, holding bondholders secured by 
deed of trust authorizing trustee to foreclose same are bound by 
decree canceling trust deed though not parties; Grant v. Winona, 
etc. Southwestern Ry. Co., 85 Minn. 430, 89 N. W. 63, holdUu^ 
deficiency Judgment obtained against defendant by trustee on de- 
fault of bond interest binds beneficiaries of trust and precludes 
action by them. See 73 Am. St. Rep. 168, note. 

Syl. 3 (IX, 878). Where bondholders differ majority gOTertia 
trustee. 

Approved in Lyman v. Kansas City, etc., Ry. Co., 101 Fed. 642, 
holding binding modification of plan for management of corpora- 



273 Notes on U. S. Reporta. 100 U. 8. 614-620 

tion on defanit of Interest, proyiding on default of fnlerest on 
second mortg-ige bonds property transferred to trustee. 

BfstiDguIshed In Pneblo Trac. & B. Co. v. Allison, 30 Colo. 342,, 
70 Pac. 425, holding receiver's certificates issued in pursuance of 
permission to build mile of road not preferred to mortgagee's rights, 
l>iiilding not "ihown necessary to prevent forfeiture. 

SyL 5 (IX, 878). Trustees as bondholders ^ Foreclosure and 
organization. 

Approved in Cutter t. Iowa Water Co., 128 Fed. 508, upholding 
ilidity of reorganization of defaulting water company effected by 
voluntilry action of certain bondholders who formed reorganization 

committee. 

lOO U. 8. 614-«17, 25 L. 746, INSURANCE CO. v. GRIDLBY. 

SyL 1 (IX, 879). Spirit of written instrument determines. 

Approved in Mutual Life Ins. Co. v. Kelly, 114 Fed. 278, holding 
iwliere insured warranted he would not die by own act for two years 
and company agreed thereafter payment of premium sole condi- 
tion, snch was agreement. 

lOO U. 8. ei7-4j20, 25 L. 769, KIDD v. JOHNSON. 
SyL 1 (IX, 879). Trade-mark, as such, not salable. 

Approved In Janney v. Pancoast, etc., Mfg. Co., 128 Fed. 125, 

enjoining use of invention Pancoast assigned to complainant with 

patent ventilators, by subsequently formed company engaged in 

manufacturing other ventilators; Greacen v. Bell, 115 Fed. 654, 

holding trade-maric owned by one newly formed partnership does 

«ot become partnership property by mere user; Maemahan, etc., 

^-^- V. Denver, etc., Co., 113 Fed. 475, holding company manufactur- 

*^^ dentist's " antiphloglstine," making 362 sales in ten years, 

^CQolpeg no right to exclusive use thereof, and cannot assign same 

apart from business. 

Syl. 2 (IX, 879). Trade-marlc transferable with establishment 

-Approved in In re Swift, 118 Fed. 351, holding stock exchange 

^ta h.^^ jn individual partner's name because of rule preventing 

® o^ flj^jjj name partnership property; The Peck Bros. v. Peck 

'^®- Oo., 113 Fed. 298, enjoining use of trade name of Connecticut 

^^^^'^tion by branch in Illinois after dissolution of old corpora- 

^ *^^ assignment of trade name to successors; Petrolla Mfg. Co. 

«. ' ^^» etc.. Soap Co., 97 Fed. 783, upholding assignment of name 

^" Oil Johnny's Petroleum Soap" by originator to corporation 



by him to manufacture article designated. 
^^^» «79). Miscellaneous. 
^_^^^^^^ved in Royal Baking Powder Co. v. Royal, 122 Fed. 346, 
^^^^g defendant Royal from using his name to deceive public 
Vol. II — 1H 



100 U. S. 621-670 Notes ofi U. S. Reports. 274 

by confusing baking powder made by him w!th Boyal baking 
powder. 

100 U. S. 621-629, 25 L. 607, WILLS v. RUSSELL. 

Syl. 1 (IX, 881). Cross-examination confined to direct examina- 
tion. 

Approved In O'Connell v. Pennsylvania Co., 118 Fed. 991, holding 
erroneous admission of evidence-in-chief on cross-examination, 
though reversing on other grounds; Montgomery v. ^tna Life Ins. 
Co.. 97 Fed. 916, upholding confining of cross-examination to mat- 
ters touched on in examination-in-chief, where witness called to 
establish mere formal parts of case. 

Distinguished in M'Knight v. United States, 122 Fed. 928, hold- 
ing harmless error to admit cross-examination not based upon 
examination-in-chief, where matter extracted already proved. 

Syl. 2 (IX, '381). Party making witness his own. 

Approved in Fourth Nat. Bank v. Albaugh, 188 U. 8. 736, 23 
Sup. Ct. 451, 47 L. 674, refusing on appeal to review discretion of 
trial court in permitting party on cross-examination to make ad — 
verse witness his own. 

100 U. S. 630-<W3, 25 L. 713, SAVING BANK v. CRESSWELL. 

Syl. 1 (IX, 881). Property applied in inverse order alienation. 

Approved in Quinnipiac Brewing Co. v. Fitzgibbons, 73 Conn. 196 
47 Atl. 130, holding husband's creditors entitled to assignment ofl 
mortgage on lots conveyed by husband to wife to secure loan; Dia- 
mond Flint Glass Co. v. Boyd, 30 Ind. App. 487, 66 N. B. 
holding vendor's lien on several lots sold by owner to different 
chasers, last lot sold first liable on lien; Hopper t. Smyser, 90 Md 
379, 45 Atl. 208, holding where mortgagor of several lots convey^P' 
equity of redemption in one, mortgagee must have recourse t^ 
remaining lots first. 

100 U. S. 644r-648, 25 L. 605, RAILROAD CO. v. SCHUTTB. 

SyL 3 (IX, 882). Supreme Court ordering filing omitted papers. 

Approved in Cunningham v. German Ins. Bank, 103 Fed. 988» 
holding objection to transcript by appellee not conclusive since 
neither appellant nor clerk can conclusively determine what parti 
of record are necessary on appeaL 

100 U. S. 648-661. Not cited. 

100 U. S. 661, 662, 25 L. 587, RAILROAD CO. T. BLAIR. 
(IX, 883). Miscellaneous. 

Approved in £)dgell v. Felder, 99 Fed. 328, holding receive not 
necessary party under decree for payment of money held in oonrt 
to persons performing services under order of court. 

100 U. S. 663-^70. Not cited. 







^ Notes on U. S. Reports. 100 U. S. 671-683 

^^ XJ. S. 671, 672, 25 L. 738, BURNS v. MEYER. 

Syi 2 ax, 884). Courts not enlarging patent claim. 

-Approved In Schrelber, etc., Mfg. Co. v. Adams Co., 117 Fed. 834, 
*^ol^tng Farwell patent for adjustable stove damper confined by 
"^^^Tiage of claims to damper with rod containing two grooves on 
®*<^li side. 

^^^ r. S. 673-675. Not cited. 

•^^^ XJ. a 676-679, 25 L. 754, MACHINE CO v. GAGE. 

^^L 1 (IX, 885). Licensing selling foreign goods only unconsti- 
tutional 

-A^pproved in Racine Iron Co. v. McCommons, 111 Ga. 538, 540, 544, 
S. B. 867, 868, 869, upholding Ga. tax act 1898, imposing 
**<^erise tax upon traveling agents for nonresident manufacturers 
executory contracts for sale of, and delivering goods shipped 



8yL 2 (IX, 886). License on all peddlers constitutionaL 

-A^pproval in Kehrer v. Stewart, 117 Ga. 975, 44 S. E. 856, uphold- 

Oeorgia tax on business of resident agent engaged in interstate 

<M>]zimerce as to selling goods already within State, hence not inter- 

^'^^►te commerce; Racine Iron Co. v. McCommons, 111 Ga. 550, 36 

S- £. 872, upholding Ga. tax act 1898, imposing license upon 

'^^x^v^ing agents making executory contracts for sale of goods of 

Nonresident principal, delivering goods shipped in; State v. Allgeyer, 

'^'lO La. 840, 34 So. 799, holding license tax on business of cotton 

l)uyer for export is duty on exports and bad; State v. Montgomery, 

^ Bie. 200, 47 Atl. 166, holding invalid Me. Laws 1889 and 1893, 

providing for licenses to hawkers and peddlers grantable to citizens 

^ TInited States, being discrimination against aliens; Saulsbury v. 

?tat€, 43 Tex. Cr. 94, 99. 63 8. W. 569, 570, 96 Am. St. Rep. 

^Pliolding under Tex. Penal Code, art. 112, punishing for peddling 

^^SSies, without license, resident agent of nonresident manufacturer 

^^Pping buggies in original packages. 

I>l8tlnguished in Norfolk, etc., Ry. Co. v. Sims, 191 U. 8. 447, 
24 8xip. Ct 153, holding constitutional license tax of N. C. Laws 
^^OX, p. 116, upon all engaged in selling sewing machines in State 
as applied to machiifes shipped in. 

lOO u. S. 680-685. Not cited. 

100 U. 8. 686-693, 25 L. 766, NATIONAL BANK v. BURKHARDT. 

Syl. 2 (IX, 888). Checks deposited become property of bank. 

-A-pproved In Montgomery County v. Cochran, 126 Fed. 460, hold- 
li*K treasurer liable on bond for full amount of check of county 
money converted by deposit in bank which failed; Montgomery 
County V. Cochran, 121 Fed. 22, holding treasurer's bondsmen liable 
for iQgg ^^ funds deposited by check in bank which failed, such 



100 U. S. 603-704 Notes on U. S. Reports. 27<l 

deposit being conversion of funds. See notes, 86 Am. St. Rep. 781, 
783. 

SyL 3 (IX, 888). Day divisible for priority private rights. 

Approved in First Nat Bank of Fort Wayne v. Fort Wayne, etc., 
Ice Co., 105 La. 137, 20 So. 381, holding between vendee and vendor's 
creditors recorded seizure by latter prior by part of day prevails 
over former's unrecorded purchase. See 78 Am. St Rep. 382, note. 

Distinguished in Scoville v. Anderson, 131 CaL 505, 63 Pac. 1015, 
holding under Cal. Code Civ. Proc., § 12, governing computations 
of time, insolvency act 1805 required filing of attachment more than 
fuU month of full days before insolvency. 

SyL 5 (IX, 880). Usage cannot malce contract. 

Approved in McCarthy v. McArthur, 60 Ark. 318, 63 S. W. 57, 
holding admissible parol evidence showing general custom governing 
clearing contract entitling plaintifT to contract price for forest 
clearing and proportion to work where no timber; State v. Atchi- 
son, etc., Ry., 176 Mo. 712, 75 S. W. 780, refusing quo warranto 
to prevent violation of railway custom of delivering without extra 
charge consignments from one track to another. 

100 U. S. 603-600, 25 L. 761, MANNING v. INSURANCE CO. 

Syl. 3 (IX, 880). Law recognizes only immediate Inferences. 

Approved in Cunard SS. Co. v. Kelley, 126 Fed. 616, holding com- 
pany cannot be held liable for nondelivery of goods described In 
bill lading where fact of shipment proved only by inference from 
bill lading; Desehenes v. Coucord, etc., R. R., 60 N. H. 200, 46 Atl. 
470, holding insufficient to fix responsibility on company for brake- 
man's death inference thrown from bent condition of bridge-guard 
wires, that hat passed between without warning. 

100 U. S. 600-704, 25 L. 750, NATIONAL BANK v. GRAHAM. 

* 

S>yl. 2 (IX, 880). Ultra vires no defense against torts. 

Approved in Chesapeake & Ohio Ry. Co. v. Howard, 178 U. S. 160, 
44 L. 1018, 20 Sup. Ct 883, holding defendant company liable for 
injury to plaintifTs wife due to defective wheel although road 
leased to another company; Hindman v. First Nat Bank, 06 Fed. 
566, holding bank liable in deceit where directors authorized cashiw 
to represent a larger paid-up capital than existed, inducing plain- 
tifTs purchase of stock held by bank; Mossessian v. CaUender- 
McAuslan, etc., Co., 24 R. I. 170, 72 Atl. 807, holding case, not tres- 
pass, proper action against dry-goods corporation for assault com- 
mitted on customer by servants. 

Syl. 3 (IX, 801). Corporation liable for servant's acts. 

Approved in West Virginia Transp. Co. v. Standard Oil Go., SO 
W. Va. 6i4, 40 S. B. 502, holding defendants liable for represent- 
ing to customers of plaintifr that latter's pipe line was unsafe for 
transporting petroleum in order to injure plaintiff's business. 



2TT Notes on U. 8. B^;K>rt4. 101 U. S. 1-22 

1€M> TJ. fi. 704-718, 25 L. 730, COX v. NATIONAL BANK. 

iSyl. 2 (IX, 881). Maker's residence ^vems, no place designated. 

-A.i>proved in Rose v. McGraclcen, 20 Tex. Civ. 639, 60 S. W. 163, 
lKOldJ.3ig maker nmy designate place of payment and deposit' money 
tlB^x"'^ preventing default and payee's recovery of attorney's fees 
^for. 

* * 

3 (IX, 892). Presentment at place of paynient sufficient. 

.X>proved in Rose v. McCracken, 20 Tex. Civ. 64(), So S. W. 163, 
]KoX<lXng maker designating place of payment ^nd depositing mon^ 
t]3.^x-^ prevents default and recovery of attorney's fees th^refoh 



01 UNITED STATESi 



J . " 



XOl XJ. S. 1-6. 25 L. 979. NATIONAL BANK v. UNITED STATES. 

(X X, 893). Miscellaneous. 

A^pproved in State v. Franklin Co. Sav. 6ank, 74 Vt 2te, 62 Atl. 
1071, holding under Vt Stat, §§ 683, 684,. taxing savjngs banks in 
proportioD to average deposits covered total deposits, commercial 
and. savings. 

101 V. 8. 7-15. 26 L. 820, BABBITT v. FINN. 

Syl. 4 (IX, 894). Obligors on appeal bond principals. 

Approved in Palmer v. Caywood, 64 Nebr. 370, 89 N* W. 1035, hbld- 
i°S judgment creditor may look to surety on supersedeas bond 
before pursuing estate of deceased debtor. ' 

^yl- 5 (IX, 894). New appeal bond not discbarge sureties. 

'Approved in Campbell v. Harrington, 93 Mo. App. 324, holding 
difimigggj Qf vn*it of error forfeits bond to stay execution and makes 
sureues liable. ' i'^ 

^^stlnguished in Jabine v. Oates. 115 Fed. 863, holding bond given 
^^ appeal erroneously allowed from Federal Judgment awarding 
™^ndamus could not bind parties. 

^^^ tr. s. 16-22, 25 L. 980, BOWDITCH v. BOSTON. 

^^"1- 1 (IX, 895). Court directs verdict where evidence Insufficient. 

^PProvea in District of Columbia v. Moulton, 182 U. S. 582, 45 

^ ^^, 21 Sup. Ct 842. holding leaving steam-roller alongside curb 

'' t'W'o days with canvass covering presents no question of uegll- 

^^^ for Jury; Work v. Chicago, etc., Ry., 105 Fed. 878, upholding 

reeti^ng for defendant where plaintiff crossed track immediately 

'^ train passed when flagman ordered him to back off to avoid 



101 U. i 



Notes on U. 8, Reports, 



k 



backing train; NelDlnger v. Cowan. 101 Fed. 789, upholding dir — ^ 
tlon of venllct for defenJant where plaintiff In crossing faml^^^ 
epot drove bo as to obstruct view of track and without atnnr'm ■ 

looking; Ketterman v. Dry Fort R. R. Co., 48 W. Va. 613, 37 S 

686, holding no recovery by employee of company injured by i 

away car where no defect in brate rhown to exist prior to accld^^^B 

Syl. 2 (IX, 895). Deetrojlng property to check Are. 

Approved in dissenting opinion in Workman v. Mayor, etc., 
New York. 179 U. S. 584, 45 L. 329, 21 Sup. Ct. 224, majority batzzi^t 
log city liable under maritime law for negligence of BerriintK. 
flreboat In collision on way to fire. 
101 U. 8. 22-33, 25 L. 989, MISSOURI v. LEWIS. 

SyL 1 (IX. 896). Fourteenth Amendment not con temp la t/i^^ 
municipal regulations. 

Approved In Connolly v. Union Sewer Pipe Co., 181 tJ. S. 53^^ 
4S L. 689, 22 Sup. Ct. 439. holding unconstitutional III. trust act lSfl3,'* 
BO far as discriminating In favor of agricultural growers and pro--"^ 
dueerB, allowing recovery by them of price for certain good; People * 
of State of New York v. Bennett. 113 Fed. 518, upholding Laws .s. Y. 
1S95, chap. 570. permitting making and keeping record of wagers 
made on certain race courses without liability to punibbment; 
Phenix Ins. Co. v. Hart, 112 Ga. 772, 38 S. E. 70, holding uncon- 
stitutional section 2140, Ga. Civ. Code, providing for recovery of 
damages and attorney's fees against insurance companies; Lewis v. 
Brandenburg, 105 Ky. 23, 48 S. W. 979, holding under Const Ky., 
% 156. classification of cities for annexation of territory need not 
be uniform; dissenting opinion In The Robert W. Parsons, 191 U. S. 
44, majority upholding exclusive admiralty Jurisdiction over suit I 
to enforce lien for repairs on canal-boat employed on Erie canal 
and Hudson river entirely within New Yorlt. 

Syl. -^ (IX, 897). Equality within jurisdiction satisfies Fourteentb 
Amendment 

Approved In Mallett v. North Carolina. 181 D. 8. 598, 48 L. 1020, 
21 Sup. CL 733, upholding under Fourteenth Amendment N. C. act 
1S99, providing for appeals to State court from District Courts of 
some districts only; B'rench v. Barber Asphalt Paving Co., 181 U. 
S. 334, 337, 45 L. 8S6, 837, 21 'Sup. CL 628, C29, upholding apportion- 
ment of entire cost of street pavement upon abutting lots on basis 
of frontage and without hearing as to benefits: Maswell v. Dow, 
176 D. S. 598, 44 L. 6(M, 20 Sup. Ci. 455, upholding Utah Const., 
art. 1, i 10, providing for jury of eight in other than capital 
cases in courts of general Jurisdiction; Union Co. Nat. Bank v. 
Oiian Lumber Co.. 127 Fed. 211, holding unconstitutional act Ark., 
April 23, 1891, requiring negotiable instruments In payment for 
patent rights or tilings except in hands of merchants to state con- 



^ 



-raw 



Notes on U. S. Beporta. 101 U. S. 34-51 



sl43^atiOQ; State t. Travelers' Ins. Co., 73 Coan. 239, 47 Atl. 304, 
upboldlns CoDD. Gen. Stat., t 3910, requiring insurance companlea 
to psy tax VA per cent, on market value ot shares held by non- 
cesiilentfl: Andrus v. Insurance Assn., 108 Mo. 163, 67 S. W. 585, 
upboldlng practice In State courts of allowing proof of n-alver of 
terma of insurance policy without alleging waiver in petition; Ei 
parte Lucas, 160 Mo. 236, 61 S. W. 223, upholding Mo. Acta 1899, 
p. 44, 1 1, regulating occupation of barbers and applying only to cities 
of orer 50.000 inhabitants; State v. Mason, 155 Mo. 510, 55 S. W. 
643, upholding Mo. Laws 1899. p. 179. requiring registration o( 
Toters as condlUon of voting: State v. Aldrich. 70 N, H. 392, 85 Am. 
St. Bep. 032. 47 Atl. 602, upholding N. H. Laws 1897. chap. 93, i 1, 
forbidding persons over twelve years of age from riding bicycles on 
■Idewslks: Gonn v. Union B. B.. 23 R, I. 302. 49 Atl. 1004, uphold- 
ing eranting new trial In clril case for trespass where Suprem« 
Court considered verdict against evidence. 
SyL S (IX, 897). State regulating local municipal government 
Approved In Anglo-Am. Co. t. Davis, etc., Co. (No. 1), 191 U. S. 
374. upboldlng N. Y. Code Civ. Proc.. i 1780. precluding suit on 
Illinois Judgment between two foreign corporations because suit did 
not arise within Stale; Parlfs v. State. 159 Ind. 225, 228. 64 N. B. 867, 
*69. upholding Burns' Rev. Stat. Ind.. 1«0I, H 7318-7323e. making 
™l«wrnl practice of medicine without license; State v. Sharpless, 
^ W'asb. 198, 71 Pac. 730, upholding Wash. Laws 1901. p. 349, chap, 
^'2. requiring barbers In cities of 9rst. second, and third class to 
W** examination and pay certificate and registration fees; dlaaenl- 
^e opinion In Scrnnton v. Wheeler. 179 U. S. 180. 45 L. 144. 21 Sup. 
*''■ 63, majority holding riparian owner of land submerged under 
"^^'gable water cannot recover for pier erected thereover by United 
Stales; dissenting opinion in State v. Thayer. 158 Mo. 77, 79. 58 8. 
W. 23. majority holding under 2 Rev. Stat. Mo. 1899. p. 2566, provld- 
'"e appeals as provided by law, defendant convicted of misdemeanor 
oa Information entitled to appeal. 

'"^ tr, S. 34-^3. Not cited. 

'W tJ. S. 43-51, 25 L. 822, NATIONAL BANK v. HALI*. 
^n. 1 (IX. 900). Contract requires mutuality, 
■^-PDroved in Russell v. Clough. 71 N. H. 178, 93 Am. St. Rep. 507, 
■*-tl, 632, allowing reasonable compensation for wort done where 
P**'ties' supposed contract failed for disagreement on price, 

^yi. 2 (IX, 900). One uncertain particular destroys Inseparable 

*«»tfBct. 

■Approved in Arnold t. Seharbauer, 110 Fed. 490, holding contract 
•TK»rtlne to be executed Detween individual landowners awl cor- 
•^^ation not binding where corporation never executed it. 




101 U. S. 51-71 Notes on U. S. Reports. 280 

SyL 3 (IX, 900). Acceptance varying offer is rejection. 

Approved in Bolton v. Huling, 195 111. 396, 63 N. E. 143, holding 
no acceptance of defendant's offer to convey defective title where 
plaintiff refused it and later wrote their continuing willingness to 
perform contract for good title; Washing^n v. Mining, etc., Ck>., 28 
Tex. Civ. 441, 67 8. W. 465, holding no acceptance of option on 
mining property where plaintiffs showed no tender of payment and 
where they objected to title offered. 

Syl. 4 <IX, 901). Certainty of parties necessary. 

Distinguished in American Bonding & Trust Co. v. Baltimore & 
O. S. W. R. R. Co., 124 Fed. 880, holding railway contractor's guar- 
anty bond assignable. 

101 U. S. 51-67, 25 L. 993, MANUFACTURING CO. v. TRAINER. 

Syl. 3 (IX, 902). Words describing quality not trade-marks. 

Approved in Allen B. Wrlsley Co. v. Iowa Soap Co., 122 Fed. 797, 
upholding use of term " Our Country " as brand on soap done up 
in similarly sized bars as, but differently labeled than those of 
" Old Country " soap; Brennen v. Emery, etc., Co., 99 Fed, 976, hold- 
ing words *' steel shod " on shoes being merely descriptive not good 
as trade-mark, hence not infringed by use of term " steel clad;" 
Cooke, etc., Co. v. Miller, 169 N. Y. 478, 62 N. B. 583, holding word 
" Favorite " on letter-file designating It as best invoice-file not proper 
term for trade-mark. See notes, 85 Am. St Rep. 96, 118, 119. 
, Distinguished in Shaver v. Heller, etc., Co., 108 Fed. 832, enjoin- 
In? defendant's use of '* American ** in connection with bluing as in- 
fringement upon trade-name " American Ball Blue." 

Syl. 8 (IX, 904). Equity prevents where likely to deceive. 

Approved in Ohio Baking Co. v. National Biscuit Co., 127 Fed. 
120, holding " Factory Seal " trade-mark printed on red background 
on ends of cracker cartons infringed complainant's " In-er Seal " 
trade-mark printed on same colored labels; Fuller v. Huff, 104 Fed. 
145, enjoining use of name '* Sanitarium Health Food Company " 
as calculated to be confused with " Health Food Company " name of 
long-existent company. 

101 U. S. 68-71, 25 L. 876, TRUST CO. V. NATIONAL BANK. 

Syl. 4 (IX, 905). Assignee takes assignor's rights. 

Approved in Huntington v. Lombard, 22 Wash. 208, 60 Pac 416, 
holding where negotiable note transferred by separate assignment 
before maturity, not by Indorsement, assignee takes subject to de- 
fense of breach of warranty available against assignor. 

(IX, 904). Miscellaneous. 

Approved in First Nat. Bank of Huntington v. Henry, 156 Ind. 
11, 12, 58 N. E. 1061, holding maker may set up lack of considera- 
tion against one taking by assignment before maturity. 



■JUl 



Notes OD D. S. Beporta. 



101 U. S. Tl-87 



lOi D. S. 71-87. 23 L. D50, THOMAS v. RAII.WAT CO, 

SfL 1 ax, 905). Railroad cannot lease entire road, 
Approved In Frltze v. Equitable Bldg.. etc. Soc. 186 111. 199. 57 
X. E. 878, holding under Starr & C. Ann. Stat. Ill, p. 630, making 
secretary only salaried officer, vlce-preGldent appointed b; loan 
sssoclatlon directors cannot recover salary. 

Dtetinguisbed la Northern Pac. Ry. Co. v. Townsend, Si Minn. 
154. 86 N. W. 1008, holding homesteader enlering and occupying 
tor fifteen years lands over which Northern Pacific railroad con- 
structed may get title to port of way under Uen. hiat. 18&1; Tour- 
telot V. Whithed, 9 N. Dak. 479, 84 N. W. 13. upholding contract 
t>y national bank for taking corporate stock of insolvent corporation 
In payment of existing debt; Spokane v, Amaterdamseh Trustees 
Kantoor. 22 Wash. 179. 60 Pac. 143, holding corporation having sold 
proper, and subaequeut mortgage thereon having been foreclosed, 
cannot raise qnestlon of ultra vires. 

8yl- 2 (IX, 906). Charter measures corporate powers. 
Approved In Cumberland Tel., etc., Co. v. Bvansvllle, 127 Fed. 
190. holding gas company using streets cannot question city's power 
to contract. State alone possessing such power; beattle Gas, etc., 
Electric Co. v. CltiEens" Light, etc.. Power Co., 123 Fed. 592, hold- 
in? New Jersey corporation having no power to manufacture gas 
"Jmot engage in such business in Washington before adoption by 
latter Stale; New Albany Water-Works v. Louisville Banking Co., 
'— Ped. "80. holding corporation organized to supply city with 
water cannot transfer entire property and franchises to another 
"fPoratlon; Metealf v. American School Furniture Co., 122 Fed. 
^ holding furniture corporation organized under Code W. Va, 
^™' thereby empowered to sell all property bss Implied power 
ro accept corporate stock in payment; Frltze v. Equitable Bldg., etc., 
S«-, 3.S6 111. 195, 19G. 57 N. E. 877, holding under 1 Starr & C. Anno. 
^'■i X». 630, Illinois, providing secretary only salaried officer, vlce- 
P«sla^j,t appointed by loan association cannot recover salary; 
^"t INat Bank v. American Nat. Bank. 173 Mo. 159. 72 8. W. 
^wl, fcoidlng national bank having no power under Bev. Stat., 
I 513q^ ju guarantee payment of draft on euatoroer. may plead ultra 
^Ires; Kobotham v. Prudential Ins. Co., 64 N. J. Eq, 682, 53 Atl. 845, 
iioldl«a ^ expenditure of f8,000,000 to control of trust company not In- 
'MUc»^nt within Laws 1902, p. 415, New Jersey, empowering In- 
*'*<^e companies to purchase corporate stock. 
^^'— 3 (IX, 908). Ultra vires contract cannot be ratified. 
■*P**i-Oved In Stelner. etc. v. Stelner, etc.. Co., 120 Ala. 140, 142, 
°'^. 496, 49T, holding stockholders of mercantile corporation can- 
**y by-law authorize corporation to indorse accommodation 
pape»- - Kansas City v, O'Connor. 82 Mo. App. 661, holding city taxes 




101 u, 



1. 71-S7 



1 D. S. ReporU. 



L 



ou abutting property for street eprlnkllng ultra virefl, and Issuins 
' tax-bills In payment not part performance. 

Syl. 4 (IX, 908). Contract iucapacitatlog quasi-public corporation. 

Approved In Cumberland Tel., etc., Co. v. Evanavllle, 12T Fed. 
192, 190, holding under Ind. Stat., 2 Bums' Rev. Stat. 1901, em- 
powering telephone companies to own and sell land, no power 
given to sell all property; Eel River R. R. Co, v. State ex lel.. 155 
Ind. 456, 57 N. K, 396, boldlng surrender by railroad of posaeBsion 
nod control of all property and franchlaes to rival under perpetual 
lease renders it liable to ouster; State es rel. v. Portland Nat. Gaa 
Co., 153 Ind. 490, 74 Am. St. Rep. 321, 53 N. E. 1001, 1092. holding 
unlawful agreement between gas company formed to supply city 
witli light and fuel and sole competing company fixing ratea and 
spheres of trade; Harden v. North Carolina R. R. Co., 129 N, C. 
301. aes, 40 S. B. 186, 189, holding railway having leased property 
under Its charter rights cannot set up lease as defense againat 
nubility for injuries from lessee's negligence. 

Distinguished in Coal Creek Min., etc., Co. v. Tennessee C, etc., 
R. R. Co., 100 Tenn. 676, 62 S. W. 1C8, holding Teon. Acts 1887, 
chap. 198, giving corporations power to lease property and fran- 
chises, did not apply to lease of 2,800 acres by company owning 
7.'),000. 

Syl. 6 (IX, 911). Ultra vires contract partially performed un- 
enforceable. 

Approved In Saviogs, etc., Co. v. Bear Valley Irr. Co., 112 Fed, 
701. holding corporation having borrowed money and given mort- 
gage on property to secure cannot on foreclosure question ability of 
parties to transaction; .Tohnson v. The School Corp. of Cedar, 117 
Iowa, 326, 90 N. W. 715, holding school district bound on contract 
for furniture eiecuted by majority of board tbougb warrant of 
president alone was void, district having used furniture; Spokane 
V. Amsterdamseh TruBtees Kantoor. 22 Wash. 170. 60 Pac. 143, 
holding corporation having sold property cannot raise question of 
ultra vires after foreclosure of subsequent mortgage thereon. 

Syl. 7 (IX, 912). Railroad's duty to rescind unauthorized leaae. 

Approved in Cumborlnnd Tel., etc., Co. v. Evanavlile, 127 Fed. 197, 
holding gas company using streets of city cannot question city's 
power to contract. State alone possessing such power. 

(IX. 905]. MiscellaueouB. 

Approved in Muncle Nat. Gas Co. v. Muncle. 160 Ind. 106, 66 N. 
E. 440. holding gas company using streets of city cannot question 
city's power to contract. State alone possessing power; State of 
Washington v. Pullman, 23 Wash. 088, 63 Pac. 266, holding city not 
estopped to plead ultra vires to contract to use water system entered 
into without complying with Hill's Wash. Code, I{ 683, 696. 697. 



^ 



283 Notes. on U. 8. Reports. 101 U. S. 87-112 

101 U. S. 87-92. Not cited. 

101 tJ. S. 93-97, 25 L. 794, BAST v. BARK. 

SyL 5 (IX, 915). Parol Inadmissible to vary written agreement 

Approved in Union Selling Co. y. Jones, 128 Fed. 674, 675, refusing 

PATol evidence to attach peculiar meaning to warranty In contract 

for binder twine, '* quality guaranteed," there being no ambiguity; 

Morris v. Chesapeake & O. SS. Co., 125 Fed. 67, holding contract 

for shipping cattle In specified vessels "all sailing" In certain 

P^lod created warranty covering all vessels and not cut down by 

parol; F^guson Contracting Co. v. Manhattan Trust Co., 118 Fed. 

7^ excluding parol evidence of prior oral agreement to vary terms 

o^ written contract of contracting company to accept compromise 

sum for work done; Sun Printing, etc., Assn. v. Edwards, 113 Fed. 

^7, holding inadmissible to vary contract based on letters giving 

plaintifT power to employ and discharge printers, prior oral agcee- 

°^exit requiring plaintiff to hire competent workman; Northern Nat. 

Bank y. Hoopes, 98 Fed. 938, holding inadmissible parol evidence of 

w-ajTanty of machinery for which promissory notes were given, to 

^^ly contract of Indorsement; dissenting opinion In Pecos Valley 

Bank y. Evan»43nlder-Buel Co., 107 Fed. 662, majority holding ad- 

''^^ssible parol agreement executed subsequent to chattel mortgage 

^^ sheep and prior to renewal, permitting mortgagor to dispose of 

^ool tree from Hen. 

^^1 XJ. & 9&-99. Not cited. 

^W 17. s. 9^107, 25 L. 841, BAKER v. SBLDEN. 

Syl^ 4 (IX, 916). System of drawing not copyrighted. 

^X>X>royed In Barnes v. Miner, 122 Fed. 491, holding stage perform- 
^^ce> consisting of singing popular songs prefaced by commonplace 
"**lo^iie and accompanied by moving pictures not subject of copy- 
l^fiTh^j Courier, etc., Co. v. Donaldson, etc., Co., 104 Fed. 995, hold- 
^ Xtthographlc prints used solely for advertisement not within 
'^'^t^^vtlon of copyright statute. 

^^C, 916). Miscellaneous. 



- proved In Tribune Co. v. Associated Press, 116 Fed. 127, refus- 
^ ^^c) enjoin associated press from furnishing war despatches ap- 
?^^**iiig In ** London Times " to American papers though ** Chicago 
^Xine" claimed copyright 

^^^ XJ. fi. 108-112, 25 L. 899, MEGUIRE v. CORWINE. 

^^1« 2 (IX, 917). Illegal contract supports no action. 

. ^X>proved in Washington Irr. Co. v. Krutz, 119 Fed. 286, holding 
l^^^lid agreement between register of land office and officers of 
^^^^tlon company by which after former retirement former con- 



^ ^t3 land for services; Beazey v. Allen, 173 N. Y. 372, 66 N. E. 
^^* holding void contract 'to procure legislation to depreciate value 



101 U. S. 112-135 Notes on U. S. Reports. 284 

of securities and to divide any prints arising therefrom. See 83 
Am. St Rep. 183. 

101 U. S. 112-119, 25 L. 782, MARKET CO. v. HOFFMAN. 

Syl. 1 (IX, 918). Jurisdictional amount — Smaller sales enjoined 
— Appealable. 

Approved in City of Ottumwa v. City Water Supply Co., 119 Fed. 
318, holding amount in dispute in taxpayer*s suit to enjoin city 
bond issue beyond constitutional limits is amount of bonds; John- 
ston V. Pittsburg, 106 Fed. 764, holding in suit by property-owner 
against city and bidder for public work to enjoin execution of con- 
tract, value of contract is Jurisdictional amount in controversy; 
Hagge V. Kansas City, etc., By., 104 Fed. 393, holding landovmers 
injured by overflow of stream caused by defendant's obstruction 
entitled to Join in Federal court if individual claims reach $2,000. 

101 U. S. 119-129. Not cited. 

101 U. iS. 129-135, 25 L. 1046, NATIONAL BANK v. COUNTY OF 
YANKTON. 

Syl. 1 (IX, 920). Territory outside States governed by Congress. 

Approved in Downes v. Bidwell, 182 U. S. 209, 45 L. 1099, 1108, 
21 Sup. Ct 780, 788, holding by treaty of cession, Porto Rico became 
territory appurtenant to but not part of United States within uni- 
formity clause of Const., art 1, § 8; De Lima v. Bidwell, 182 U. 8. 
196, 45 L. 1056, 21 Sup. Ct. 753, holding after Spanish treaty of 1899, 
Porto Rico no longer foreign territory within Dingley tariff act 
July 24, 1897, taxing imports; Kansas City, etc., Ry. v. Board of 
Railroad Comrs., 106 Fed. 356, holding Arkansas commission power- 
less to regulate charges of railway carriage between Arkansas 
points, greater portion of line lying in Indian Territory; Cheyney v. 
Smith, 3 Ariz. 145, 23 Pac. 681, holding Rev. Stat. U. S., ( 1852, 
as amended, limiting sessions of territorial legislatures to sixty 
days, means sixty legislative working days; In re Terrill, 66 Kan. 
317, 322, 71 Pac. 589, 591, upholding contract between governor of 
Oklahoma and Kansas authorities under 21 Stat. 277, providing for 
imprisonment of Oklahoma prisoner in Kansas penitentiary; Torrls 
V. County Comrs., 10 N. Mex. 690, 65 Pac. 182, holding unconstltn- 
tional chapter 34, N. Mex. Laws 1899, reducing salary of county 
school superintendent as prohibited by 24 Stat. 170. 

Distinguished in dissenting opinion in Cheyney v. Smith, 3 Arix. 
161, 23 Pac. 687, majority holding amended Rev. Stat. U. S., 
§ 1852, limiting territorial legislative sessions to sixty days, means 
sixty legislative working days; dissenting opinion in In re Terrill, 
66 Kan. 323, 71 Pac. 591, majority upholding contract between 
governor of Oklahoma and Kansas authorities under 21 Stat. 277, 
providing for imprisoning Oklahoma convict in Kansas penitentiary. 



28S Notes on U. S. Reports. 101 U. S. 13&-14S 

Sy^M^ 8 (IX, 921). Congress annulling or validating territorial 
acts. 

Apx^roved in Ex parte Ortiz, 100 Fed. 061, holding on cession 
Porto Rico came under sway of Ck>nstitution, including right of 
juiT ^trial, but before treaty April 1889, Spanish courts bad juris- 
dicttos; Central Baptist Churcb v. Manchester, 21 R. I. 359, 43 Atl. 
84S, manpholdlng act of RHode Island general assembly validating 
title <Mnveyed to incorporated church before incorporation, no pri- 
vate Yi{^ts intervening. 

101 XT. S. 13&-143, 25 L. 807> WOOD v. CARPBNTER. 

SyX^ 2 ax, 922). Statute of Limitations favored in law. 

AK>Xproved in Boynton v. Haggart, 120 Fed. 830, holding inter- 
Tene^x^ estopped to avoid patent where right of action accrued 
tliif^^-two years before and innocent purchaser owned land, legal 
stattzA-^e being five years; Williamson v. Monroe, 101 Fed. 329, hold- 
ing ^nit in equity by partner of dissolved firm to share contract 
proi3ca.l8ed defendant before dissolution but concealed from plaintiff 
uGt l>arred tUl statute run; Nichols v. RandaU, 136 Cal. 432, 69 Pac. 
28i bolding erroneous refusal to allow defendant to plead Statute of 
Llii^^^tions by amendment where in suit for money misappropri- 
ate&« evidence of trust erroneously admitted; Deering v. Holcomb, 
^ ^^^ash. 594, 598, 67 Pac. 242, holding under Ballinger*s Anno. 
Godee & Stat. Wash., § 4800, requiring action for fraud in three 
yeairs from discovery, creditor barred where attorney knew of trans- 
fer ror three years; McClaine v. Falrchild, 23 Wash. 764, 63 Pac. 519. 
allo^^lng filing of amendatory demurrer in suit on railway subscrip- 
tloa ooDtract setting up Statute of Limitations; Whereatt v. Worth, 
106 "VTis. 299, 84 N. W. 444, holding court has same discretion in 
*Uo^^ing amendatory pleading setting up Statute of Limitations, 
M aoity other defense. 

Sy 1. 8 (IX, 922). Equity and law merged — Decisions equal. 

A-X>proved in Nash v. Ingalls, 101 Fed. 649, holding nine years' 
delay In seeking to charge receiver as trustee of funds received as 
r«*'t« b^rg guit, legal statute being six years. 

^yh 6 (IX, 922). Concealing fraud — Mere silence not enough. 

-Approved in School Dist v. De Weese. 110 Fed. 710, holding mis- 
appropriation of school district funds by its agent also cashier of 
hank qq^ chargeable to banlc after statute run, banlc being Ignorant 
o^ ^roiigdoing; Webster v. Bates Mach. Co., 64 Nebr. 311, 89 N. W. 
• folding vendor of engine to lessee barred to claim same, hav- 
^8 xnade no claim when lessor seized engine on lessee*s default 
°^^««- lease. 
^^- 7 (IX, 923). Due diligence required to avoid statute. 

. ^^Proved in Cutter v. Iowa Water Co., 128 Fed. 509, holding 
^y bondholder of water company filed year and a half after 



101 U. 8. 14a-148 Notes on U. S. Reports. 286 

foreclosure sale must show what complainant did to diBCOver al- 
leged fraud; Edwards v. Mercantile Trust Co., 124 Fed. 392, hold- 
ing insufficient bill by stockholder against corporation to set aside 
alleged fraudulent hypothecation of stock made eight years before, 
alleging only excuse ignorance of facts; Kessler v. Ensley Co., 123 
Fed. 566, holding minority stockholders cannot set aside convey- 
ance of property made by corporation four years before, which wai 
not fraudulent and since ratified by majority; Klmbell v. Chicago 
Hydraulic Press Brick Co., 119 Fed. 106, holding delay of ten yean 
to seek cancellation of stock on ground of ultra vires bars stock- 
holder where issue was known during the period; Damold v. Simp- 
son, 114 Fed. 370, holding creditors barred to set aside debtor's 
deed alleged to be fraudulent though creditor ignorant at time, ten 
years having elapsed and no diligence shown; In re Oleson, 110 Fed 
797, 799, refusing to revoke discharge in bankruptcy on ground oi 
fraudulent mortgage where schedule showed mortgage and cred- 
itors did not contest until year after discharge; Simpson v. Dalziel, 
135 CaL 603, 67 Pac. 1082, holding plaintitf barred by Cal. Code Civ. 
Proc, § 338, to recover excess paid to creditor by attorney where 
no inquiry was made for three years; Smith v. Martin, 135 Cal. 255. 
67 Pac. 782, holding action for fraudulently inducing purchase of in- 
valid stock barred under California Code Civil Procedure, where three 
years elapsed after suspicions aroused; Lewis v. Duncan, 06 Kan. 
309, 71 Pac. 578, holding action against surety on guardian's bond 
for maladministration over twenty years before barred by unex- 
plained delay. 

Distinguished in Horner v. Perry, 112 Fed. 908, holding where 
defendant, authorized to sell stock, telegraphed he could not get 
price wanted but could get less, and got more, statute runs from 
discovery. 

Syl. 8 (IX, 925). Delay must be explained. 

Approved In Williamson v. Munroe, 101 Fed. 330, holding suit it 
equity by partner in dissolved contracting firm to share contraci 
promised before dissolution but concealed by defendant maintain 
able until statute expires; Thayer v. Kansas Loan, etc., Co., 10( 
Fed. 903, holding under Gen. Stat. Kan. 1897, chap. 95, $ 12, actlot 
to recover price paid for mortgages barred after two years, when 
not shown fraud not discoverable. 

101 U. S. 143-148, 25 L. 901, PELTON v. NATIONAL BANK. 

Syl. 3 (IX, 928). National bank enjoining illegal taxes. 

Distinguished in iState v. Western Union Tel. Co., 165 Mo. 615 
517, 65 S. W. 777, holding foreign telegraph corporation complain 
ing of discriminative taxation by State board of equalization can 
not raise question In State's suit for taxes; Carroll v. Alsup, 10' 
Tenn. 286, 64 S. W. 200, holding under Tenn. Acts 1899, tazini 



287 Notes on U. S. Reports. 101 U. 8. 149-164 

ptroperty at actual cash value, one assessed at less cannot complain 
tlia.t others are assessed still lower. 

lOl TJ. S. 149-153, 25 L. 848, WORTHINGTON v. MASON. 

SyL 2 (IX, 928). Facts must be stated in exceptions. 

.Approved in Stemenberg v.* Mailbos, 99 Fed. 46, holding bill of 
exeeptions in action to recover for negligent killing must state 
enough of evidence to show applicability or inapplicability of in- 
stmctions. 

SyL 4 (IX, 928). On error, restatement applicable — Evidence 
reQiiired. 

X>l8tingulshed in Pitcaim v. Philip Hiss 0>., 113 Fed. 496, holding 
a<loi>tion by plaintiff contractor of court's statement that woodworlc 
in room could be fixed for $500, and admission of defects. 

lOX XT. S. 15a-164, 25 L. 903, CUMMINGTS v. NATIONAL BANK. 
SyL 3 (IX, 929). Equity relieving national bank's excessive taxes. 

-^X^proved In New York ex rel. New York Clearing House Bldg. 
^>>- ^. Barker, 179 U. S. 284, 45 L. 193, 21 Sup. Ct 123, upholding 
^- ^. Laws 1857, for correcting undervaluation of corporate but 
^ot individual assessments, where corporation property was not 
^▼oxrvalued; Peoples' Nat. Bank v. Marye, 107 Fed. 577, holding 
"^Xfcic may gue in equity on behalf of stockholders to test validity of 
^^^'fcxile requiring bank withholding dividends to pay on taxes and 
I^'iXiighlng faUure; Mercantile Nat Bank v. Hubbard, 105 Fed. 814, 
**ol<^jjg national bank may sue in Federal court to enjoin taxes 
*^vi^d qh increased valuation by directors without notice to banks 
^^ stockholders. 

^yl. 4 (IX, 930). Federal courts enforce new State remedies. 

-^X)proved in Sawyer v. White, 122 Fed. 227, upholding Federal 

J^i**lsdiction over contest of probated will between citizens of differ- 

^'^t: States where State statute makes contest cognizable in courts of 

^^J^eral jurisdiction; National Surety Co. v. State Bank, 120 Fed. 

^"^» upholding Federal Jurisdiction to restrain unconscionable Judg- 

^^>it between citizens of different States, such remedy being given 

^^ State court by Nebr. Code, SS 602-611; Lander v. Mercantile 

^*'t. Bank. 118 Fed. 791, holding Federal courts will enforce remedy 

®^ Hev. Stat. Ohio, S 5848, authorizing suits to enjoin illegal tax 

'®^y, In case of excess bank taxation; dissenting opinion in Wahl v. 

^a.112, 100 Fed. 700, 701, majority holding proceeding for probate 

®' 'Will not suit at law or in equity within Judiciary act 1888, hence 

^ot: removable. 

®yl. 6 (IX, 931). Equity restraining assessor's unequal valuation. 

-Approved in Cleveland Trust Co. v. Lander, 62 Ohio St. 271, 56 
^ 1038» holding under Rev. Stat, .§ 5219, rate of taxation and 



101 U. S. 164^174 Notes on U. S. Reports. 288 

value of assessment against national bank shares must not be 
greater than on property of individuals. 

Distinguished in State v. Western Union TeL Co., 165 Mo. 515, 517, 
65 S. W..777, holding foreign telegraph corporation complaining of 
discriminating taxation by State board of equalization cannot raise 
question in suit by State for taxes; Mercantile Nat. Bank v. Mayor, 
172 N. Y. 44, 49, 64 N. B. 759, 761, refusing to restrain coUecUon of 
national bank stock tax though taxed to full value, realty being 
taxed 60 per cent, officers presumed to act honestly. 

Syl. 10 (IX, 933). "Salable" value and "actual value" Inter- 
changeable. 

Approved in New York ex rel. N. Y. Clearing-House Bldg. CJo. v. 
Barker, 179 U. S. 286, 45 L. 194, 21 Sup. Ct 124, upholding N. Y. 
Laws 1857, for correcting undervaluation of corporation but not of 
individual assessments, where corporation property not overvalued. 

Syl. 11 (IX, 933). Equity enjoining excess of assessment. 

Approved in Territory v. Building & L. Assn., 10 N. Mex. 347, 
62 Pac. 1101, holding under N. Mex. Comp. Laws 1897, §t 4018, 
4019, loan corporation shares liable to taxation whether pledged or 
unpledged; Cleveland Trust Co. v. Lander, 62 Ohio St. 282, 50 N. B. 
1041, holding under N. Mex. Comp. Laws 1877, §§ 4018, 4019, loan 
corporation shares taxable whether pledged or unpledged. 

(IX, 929). Miscellaneous. 

Approved in People's Nat. Bank v. Marye, 191 U. S. 284, 24 Sup. 
Ct. 72, holding payment or tender of taxes which national bank 
thinks due necessary before equity will restrain collection; Carroll 
V. Alsup, 107 Tenn. 286, 289, 64 S. W. 200, 201, holding under Tenn. 
Acts 1899, taxing property at actual cash value, one whose property 
is assessed at less cannot complain that others are assessed lower. 

101 U. S. 164-169, 25 L. 860, UNITED STATES v. LAWSON. 
Syl. 4 (IX, 934). Payment upon peremptory order not voluntary. 

Approved in Dooley v. United States, 182 U. S. 230, 45 L. 1081, 21. 
Sup. Ct. 765, holding Circuit Court has jurisdiction over suit to 
recover back duties Illegally exacted and paid under protest on 
Porto Rican imports into New York. 

Distinguished in United States v. Edmonston, 181 U. S. 509, 45 
L. 976, 21 Sup. Ct. 722, holding voluntary though mistaken payment 
of $2.50 instead of $1.25 per acre for government land as provided 
by act of Congress not recoverable. 

101 U. S. 170-174, 25 L. 862, UNITED STATES v. ELLSWORTH. 

Syl. 2 IX, 934). Peremptory payment storage rents not rolnn- 
tary. 

Distinguished in United l^tates v. Edmonston, 181 U. S. 509, 46 



Notes on IT. S. Reports. 101 U. S. 174-204 

C 976» 21 Sup. €t 722, holding not recoverable voluntary though 
mistaken payment of $2.50 Instead of $1.25 per acre for government 



lOl T7. S. 174-181, 25 L. 1048, WRIGHT r. BLAKBSLBB. 

(XX, 935). Miscellaneous. 

i^I>proved in Fitzgerald v. Rhode Island Hospital Trust Co., 24 
B. I. 66, 52 AtL 817, holding where property bequeathed in trust, 
incozne payable to legatee for life, life tenant, not remainderman, 
liable for tax on life interest 

101 XT. S. 181-184. 25 L. 907, PEOPLE'S BANK T. NATIONAL 
SANK. 

Syl. 1 (IX, 935). National banking act enables transfer. 

Distinguished In First Nat Bank v. American Nat Bank, 173 
Mo. 162, 72 S. W. 1062, holding Rev. Stat, § 5136, enumerating 
national bank powers, confers no power to guarantee payment of 
draf -fc on customer, hence bank can plead ultra vires. 

Syl. 2 (IX, 936). Bank estopped to question vlce-presidenfs 

guaranty. 

A.x>proved in National Bank v. Oil & Cotton Co., 24 Tex. Giv. 648, 
60 S. W. 829, holding bank having accepted and retained benefits 
frozn contract of cashier to pay for goods bought on its credit cannot 
Allege ultra vires. 

101 TJ. 8. 184-187, 25 L. 838, AYBRS v. CHICAGO. 

^yh 2 (IX, 937). Cross-bill contains no new matter. 

^I>proved in Hogg v. Hoag, 107 Fed. 814, holding in suit for ap- 
pointment of successor to deceased trustee, cross-bill of beneficiaries 
Dinat be confined to protection of rights in fund before court 

^^^ tJ. s. 188-196, 25 L. 786, STEAM ENGINE CO. v. HUBBARD. 

^yh 1 (IX, 938). Connecticut statute requiring corporate state- 
°»«^t«, penaL 

distinguished in American Credit etc., 0>. v. Ellis, 156 Ind. 220, 
^ ^. B. 682, holding Bums' Rev. Stat Ind. 1894, S§ 5071-5073, re- 
Q'uiiiig annual statement of financial condition of corporation, 
*"^^viiig recovery of damages suffered by failure, remedial. 

^^^ ^. S. 19^204, 25 L. 803, POMPTON v. COOPER UNION. 
^^^ 4 (IX, 939). Municipal corporation estopped by bond recitals. 

-Approved In Baxter v. Vineland Irr. Dist, 136 CaL 190, 68 Pac. 
• folding in action by landowner to restrain sale of land for 
^t'eat on bonds of Irrigation district, bona fide holders may rely 
^ *>oxi^ recitals. 

Vol II — 10 



L 



101 n. S. 205-218 Notes oa U. S. Reports. 2M 

101 U. 8. 205-215. 25 L. 885, HATCH t. DANA. 

Syl. S (IX, WO). Creditor's bill subrogates to corporation's rights. 

Approved tn West v. Topeka Sav. Bank. 66 Kao. 531, 72 Pac. 2SS, 
holding iDBolvent corporation can recover of BtoekhoIderB only so 
much of stock subscriptions as necessary to pay debts, aad statute 
runs from Insolvency; Hawkins v. Donnerberg. 40 Or. 104, 66 Pac. 
e&4, holding right of credltora to enforce stockholder's linhlllty for 
unpaid subscription ended when corporation's right barred by Stat- 
ute Limitations; Klllen v. Bamea. 106 Wis. 667, 82 N. W. 543. hold- 
ing liabilities for unpaid subscriptions pass to assignee of Insolvent 
corporation, and creditors to participate must be party to asslgn- 

SyL 7 <IX, &il). Equity enforcing unpaid subscriptions without 
call 

Approved in Harris v. Gateway Land Co., 128 Ala. 650. 29 Bo. 
813. holding until statute runs judgment creditor of Insolvent cor- 
poration can maintain bill In equity to collect unpaid subscriptions; 
Stiles V. Samanlego, 3 Ariz. D6, 20 Pac. 610, upholding creditor's 
claim on stock subscription of stockholder In Insolvent corporation 
though no call had been made when stockholder assigned for benefit 
of creditors. 

Syl. (IX, 941). Judgment creditor may sue single stockholder. 

Approved In Welch v. Sargent, 127 Cal. 84, 59 Pac. 323. holding 
creditor of agricultural works corporation can recover against one 
only or any number of stockholders for unpaid subscriptions; Walter 
T. Merced Academy Assn., 126 Cal. 086. 59 Pac. 13T, holding cred- 
itor can sue part only of stockholders of Insolvent academy asso- 
ciation; Fouche V. Merchants' Nat. Bank. 110 Ga. 837. 30 S. B. 
260, holding for creditor to recover unpaid subscription It must 
appear that stockholder was such when liability attached; Singer 
v. Hutchinson, 183 III. 618, 75 Am. St Rep. 139, 5G N. B. 392, hold- 
ing suit to enforce Judgment against corporation against stock- 
holders does not require joinder of all stockholders: Cooper t. 
Security Co., 127 N. C. 220, 37 S. B. 216. allowing creditor or In- 
solvent security company to satisfy judgment against a single stock- 
holder of those In arrears with stock subscription; Sweariogen v. 
Newlckley Dairy Co., 198 Pa. St. 75. 47 Atl. 043, holding creditor's 
right of action for unpaid subscription of stockholders In dairy cor- 
poration accrues immediately upon Insolvency. 

Distinguished In South Milwaukee Co. v. Murphy, 112 Wis. 622, 
as N. W. 3S6, holding stockholder's liability on unpaid subscrlptjon 
Ib contingent debt, dependent upon regular Issuance of calls. 
101 D. S. 216-218, 25 L. 864. TERRY v, LITTLE. 

Syl, I (IX, 943). Individual stockholder's liability determined by 

Approved in McDonald t. Thompson, 184 D. S. 74, 43 L. 439, 22 




Notes on U. 8. Reports. 101 U. 8. 21&-239 

Sup. Ct 298, holding national bank receiver's action under Bev. 
Sta.t.» i 5234, to enforce shareholder's individual liability, is on un- 
wrltten contract which must be brought within four years; Bruns- 
w^clL Terminal Ck>. v. National Bank, 90 Fed. 639, holding Ga. 
Code, 1882, S 2916, instead of Maryland statute, applied in action 
in BidCaryland to enforce liability of Maryland stockholder in Georgia 
cori>oration. 

Byl. 2 (IX, 943). Single creditor's suit at law demurrable. 

-A.i>proved In Barton Nat Bank v. Atkins, 72 Vt. 41. 47 Atl. 179, 
holding creditor's action to enforce stockholder's personal liability 
Imposed by charter properly brought in equity. ... 

101 JJ. 8. 219-225. Not cited. 

M XJ. S. 225-231, 25 L. 908, JONES v. CLIFTON. _ 

Sy 1, 1 (IX, 945). Husband's voluntary settlement on wife valid. 

^S>l>roved in Evans ▼. Dickenson, 114 Fed. 285, holding under 
^OK-^^a statute, McOlel. Dig. 791, mortgage of married woman void 
vb&:^-« notary taking acknowledgment had no authority to act; 
l^iu^v^cr Y. Davenport, 63 N. J Eq. 291, 49 Atl. 464, holding under 
^* -3*«. 2 Gen. Stat, $ 4, married woman may recover wages due 
™d^sr contract with firm of which husband was member; Adone v. 
Spexi.<jer, 62 N. J. Eq. 788, 90 Am. St Rep. 490 and note, 49 Atl. 13, 
bol^Xsg under Texas statute money of wife coming into hands of 
husl^^Qd is treated as money of feme sole, impressed with trust 

S^'X. 2 (IX, 945). Trustee's intervention in marriage conveyance 
Tmikes ^^essary. 

'^X>proved in Luhrs v. Hancock, 181 U. S. 571, 45 L. 1007, 21 Sup. 
^* *728, holding adoption of common law by Ariz. Laws 1885, 
^°- ^8, not include rule requiring trustee to intervene when hus- 
ban^^ makes direct conveyance to wife; Daniels v. Benedict, 97 Fed. 
^^ folding intervention of trustee unnecessary to validity of agree- 
"^^'^tb of separation between husband and wife. See notes, 83 Am. 
St. ^^Le^, 864, 865. 

^^^ XJ. S. 231-239, 25 L. 797, MAY v. SLOAN. 

S^'l. 8 (IX, 946). Statute of Frauds pleaded by denial. 

^X>proved in Third Nat. Bank of New York v. Steel, 129 Mich. 
^» ^ N. W. 1052, holding general issue In action for fraudulent 
wpt'^sentations inducing loan enables defendant to object to parol 
evidence on trial; Eaves v. Vial, 98 Va. 140, 34 S. E. 080, bolding 
where defendant when sued to set aside conveyance permitted parol 
evi(3eiice of agi'eement to recovery no objection can be made on 
appeal; WiUiams, etc.. Shoe Co. v. Brooks, 9 Wyo. 430, 64 Pac. 343. 
lioldixi^ where execution of oral contract for sale of shoes denied 
^ Pieaciing parol evidence to prove contract may be objected to on 
^'*^ See 78 Am. St Rep. 654, note. 



101 U. S. .240-2G3 Notes ou U. S. Reports. 

9 m 

101 U. S. 240-247. Not cited, 

101 U. 8. 247-256, 25 L. 820, WATT ▼. STABKB. 

SyL 1 (IX, MS). No exceptions on trial feigned issue. 

Approved in Southern B. & L. Assn. v. Carey, 117 Fed. 880, hold- 
ing Tennessee practice of bringing into record by bill of excepttons 
papers which court has refused to file not followed in Fedend 
courts. 

Syl. 7 (IX, 948). Verdict on feigned Issue advisory only. 

Approved in Continental Trust Co. v. Toledo, etc., B. R., 99 Fed. 
178, holding in equity cases Judge of Federal court not required to 
sign bill of exceptions. 

101 U. S. 256-260, 25 L. 865, LEGGETT v. AVEBY. 
Syl. 4 (IX, 040). Disclaiming portion rejected claim no mistake. 

Approved in Westlnghouse Electric, etc., Co. v. Stanley, etc., Mfg. 
Co., 115 Fed. 813, holding mistalce as to meaning of disclaimer 
limiting patent in unsuccessful attempt to meet patent oflice re- 
quirements not within Bev. Stat., § 4916, corrected on reissue. 

Syl. 5 (IX, 949). Disclaimed portion not infringable. 

Approved in Hubbell v. United States, 179 U. S. 80, 45 L. 98, 21 
Sup. Ct. 25, holding where situation of vents in cartridge patent 
were material, infringement of rejected claim where position not 
specified does not infringe patent as granted. 

(IX, 949). Miscellaneous. 

Approved in Westlnghouse, etc., Mfg. Co. ▼. Stanley, etc., Bifg. 
Co., 115 Fed. 813, holding mistake as to meaning of disclaimer 
limiting patent in unsuccessful attempt to meet patent ofiSce re- 
quirements not corrected by reissue within Rev. Stat., § 4916. 

101 U. S. 260-263, 25 L. 910, SIMMONS v. WAGNEB. 

' Syl. 1 (IX, 950). Certificate or payment vests entryman's title. 

Approved in Cosmos Exploration Co. v. Gray Eagle, etc., Co., 112 
Fed. 11, holding where patent right vested, Issuance relates back, 
but no right existed where land claimed was occupied by explorers 
for oil. 

Syl. 4 (IX, 951). Issuance of patent purely ministerial. 

Approved In Olive Land, etc., Co. v. Olmstead, 103 Fed. 576, 
holding entryman selecting land in lieu of surrendered lands may 
maintain suit before patent issued restraining sinking oil well 
thereon; Bash v. Cascade Mln. Co., 29 Wash. 53, 69 Pac. 403, holding 
vendee of mining claim cannot refuse deed because no patent yet 
issued, vendor having paid for claimi and received certificate of pur- 
chase. 



:'»3 Notes on U. S. Reports. 101 U. S. 2da-28& 

lui I', s. 2r>r: 27.^, 25 l/soo, west v. smith. 

;>> I. 1 tlX. 952). Following State allowing amendment after re* 

--\i»l»iuvod In Coker v. Monaghan Mills, 119 Fed. 708, following 
!^oixiLl Carolina rule refusing amendment to complaint to furnish 
i-uii.'so of action where original complaint contained none. 

I'jl L". S. 274-277, 25 L. 790, BRODER v. WATER CO. 

sn-1. 1 ax. 953). Act 18GG grant to establish canal. 

Api.novod In Tuolomne Const Co. v. Maier, 134 Cal. 586, 66 Pac. 
S05, t--njoining interference with plaintiff's ditch by defendant's 
n.iiii.- ^vlicre mineral found subsequent to ditch though claim located 
I-rovious to building of ditch. 

5=y 1. 2 (IX, 953). Act 1800 aclcnowledged of pre-existing rights. 

Api>rored in Mohl y. Lamar Canal Co., 128 Fed. 779, holding com- 
piiaiioe with unconstitutional act Colo. February 11, 1881, gave 
^■11 11 ill company no contract rights to appropriate waters of Ar- 
I^^iiss:ls riyer sufficient to maintain Federal suit; Mount Carmel 
fruit Co. V. Webster, 140 Cal. 187, 73 Pac. 828, holding under Cal. 
Ci"*-*- Code, ii 058-600, 662, conveyance of water right by one who 
later acquired land to which appurtenant no grant of land; Land 
«fc Irr. Co. V. Gutierrez, 10 N. Mex. 237, 250, 01 Pac. 359, 364, up- 
holding right of irrigation company under N. Mex. Laws 1887, chap. 
^^' to appropriate land and timber and divert unappropriated water 
'Or its use; Farm Investment Co. v. Carpenter, 9 Wyo. 137, 87 Am. 
•*^f- rtep. 934. 01 Pac. 265, upholding Wyo. Const, art 8, S 1, declar- 
'"^ S^tate ownership of waters of ail natural springs, streams, and 
lakt^-sj within State. 

^ J extinguished in Senior v. Anderson^ 130 Cal. 296, 62 Pac. 506, 
Dolti i iig riparian owner settling on public lands cannot divert water 
® "^ ^ xream beyond reasonable beneficial use to injury of subsequent 
^^^^x* riparian appropriator. 

^^^ XJ-. S. 278^285, 25 L. 845, GREENLBAF v. GOODRICH. 
. ^^"X. 5 (IX, 955). Popularly construing phrase " of similar descrip- 

tlOTX ^ » » 

^ X> proved in Coles v. Collector, etc., 100 Fed. 446, holding anthra- 
^ ^ coal containing less than 92 per cent, fixed carbon dutiable 
^^^^■x paragraph 415, tariff act 1897, and not within paragraph 453, 
* ^c^t: provided for." 

^^^ TJ. S. 285-289, 25 L. 785, JEFFREY v. MORAN. 

^^1. 3 (IX, 956). Judgment after foreclosure sale no lien. 

-Approved In Julian v. Central Trust Co., 115 Fed. 961, 963, holding 
"^^Sal action of sheriff in levying attachment upon property of cor- 
^^ation after foreclosure sale, under Judgment for wrongful death 

^^ employees after foreclosure. 



101 n. S. 289-319 Notes on U. S. Reports. 291 

101 D. S. 289-300, 25 L. 932, PACIFIC II. R. T. KETCHUM. 

8yL 1 (IX, 956). Consent decree appealable, except errors waived. 

Approved In Prout v. Starr, 188 U. S. 542, 23 Sup. Ct, 400, 47 L. 
587, liolding parties to suit to restrain enforcement of Nebr, act, 
April 12, 1893, filing minimum rates, may agree to accept evidence 
and decree in similar suit; M"CaCCerty v. Celluloid Co.. 104 I''«l, 305, 
bolding assignment of error will not lie to decree entered conform- 
ablf witb stipulation ol parties; Jotmston v. Osment, 108 Tenn. 38, 
65 S. W. 24, bolding bill to construe wit] leaving property to wife, 
tlien In trust for church. Joining trustees, authoriaed decree by which 
church released Interest; Wilson v. Schaefer. 107 Tenn. 334, 04 S. 
W. 216. bolding Itlnding on Infant compromise decree confirming an 
exchange of lands in which Infant had remainder, being on petition 
of moUier aa next friend. 

Syl. 8 (IX, 9-37). Parties arranged according to real InteresL 

Approved in Rochester Germ. Ins. Co. v. Schmidt. 120 Fed. 1003, 
holding assignee of Insurance policies, residing in different State 
from policy-holders, may bring bill In Federal court to restrain suits 
at law and against losses; Boston Safe, etc., Go. v. Racine, S7 Fed. 
817, holding mortgagee of Wisconsin water company cannot sue 
city of Racine in Federal courts, his Interests being Identical with 
those of water company. 

Syl. 10 (IX, ^8j. Fellow citizenship noncompeting, prior mort- 
gagees Immaterial. 

Approved In Reese v. ZInn, 103 Fed. 97, bolding Federal Jurisdic- 
tion In suit to cancel lease not ousted by Joinder of merely formal 
parties as defendants of same State as plalntlfT, ^^^H 

101 V. S. 301-300. Not cited. ^^B 

101 U. S. 30S-3I9, 25 L. 999. KETCHUM t. ST. LOUIS. ^^H 

Syl. 1 (IX, 959|. Equitable lien created by agreement 

Approved In Booz v. Philadelphia & L. Transp. Co., 124 Fed. 435, 
upholding equitable lien created by charter party for bire of boat, 
complainant to have lien on all property of charterers including 
wharf at Lewis. Del; Fortier r. Delgado & Co., 122 Fed. 608, hold- 
ing cbeclis drawn by superintendent of sugar reUnery on deposit 
kept for payment of laborers operated as equitable assignment as 
against receiver of company; Howard v. Delgado & C^., 121 Fed. 
30. 31. upholding lien upon sugar held by receiver where refining 
company agreed to ship all sugar refined to plaintiff to secure prior 
loan; Newton, etc, v. Eagle, etc., Mfg. Co., 101 Fed. 154, bolding 
directors declaring entire capital stock of corporation pledged for 
benefit of depositors, under authority of stockholder's resolution 
conformably with Georgia law, created equitable lien; Elmore v. 
Symonda, 183 Mass. 323, 67 N. E. 316, holding no equitable lien 



k 



1 



B Notes on U. 8. BeportB. 101 U. S. 320-337 

CPea-ted against trustee in baukruptcf by agreement of tenant hj 
curtesy to repay from rents of premises money advanced for taxes. 

r>Istlngul8bed In Roberls v. Central Trust Co., 128 Fed. 8S4. hold- 
ing order of railway company to treasurer to pay holder out of 
proceeds of first bond sale gave no lien as against morlgHBees; 
Kariiiers' Loan, etc.. Co. v. Penn Plate Glass Co., 103 Fed. 152. hold- 
ios no equitable lien on proceeds of Insurance taken for own benefit 
l»y srautee of equity redemption of mortgaged property, there being 
no contract, 
lOl V. S. 320-332, 25 L. 955. SMITH t. ATER. 

Syl. 2 ax, 9fl0). Knowledge of attorney imputed to client 

■Ajiproved in Barstow v. Becliett, 122 Fed. 147, boldlng judgment 
*^'"e^ltor tiound by knowledge of attorney of fraudulent nature o( 
"nl^ of debtor's goods purchased for her by attorney, hence not bona 
fide; Sebwind v. Boyce. 94 Md. 518. 51 Atl. 47. holding actual knowi. 
^^C^ of Tendee's agent of liens on personal property purchased 
'n>r*\iied to principal; Lyman r. National Bank of Republic. 181 
^lass. 4:t7. C3 N. E. 62.1. holding Ijlodlng on ajlmlnlstrator de Ixinis 
noi:i pledge by executor of stocks and bonds given as security for 
*uoeiey appropriated to eiecutor's own use, 

Syl, 4 (IX. 9C0). Executor pledging naaets for will purposes. 

S^e note. 78 Am. SL Hep. 185. 

&yl 5 (tX, 0€lr. Testator's aesets traceable to third parties. 

A.jiproved Id Wells-Stone, etc.. Co. v. Aultmau, Miller, etc., Co., 
® N. Dak. 525, 84 N. W. 378, holding creditor may recover from 
(>cneBciarles wtiere trust fund exhausted and plaintlfF remained 
^'I'Oald for goods sold to trustee. 

^yL 8 (IX, 961). Executor continuing assets In existing part- 
ner-Bhip, 

A^tiproved in Steiner, etc. v. Stelner, etc. Co., 120 Ala. 144, 26 So. 
™*I holding BUrviving copartners Invested by will with power to con- 
Uuvie business cannot bind assets of deceased partner's estate not 
siread; invested In business. See 79 Am. St. Bep. 71S, note. 



101 V. i 



. DESPEB. 



i. 332-337, 25 L. 1024. WATER METER CO. ' 
S7L 1 (IX, 962). Omitting material part prevents Infrlnglug coia- 
blaatlon. 

Approved In Levy v. Harris. 124 Fed. 71, holding quUI-grlndlng 
maoblne not infringed by substantially similar machine omitting 
means for adjusting tension of certain spring: American Fur Refln- 
*^S Co. V. Cimiotti Unhalring Mach. Co,, 123 Fed. 874, holding 
8Dtton (ur-pluekiag machine not Infringed by machine built with 
''clprocatlng instead of flied stretcher bar, without stationary card 
*nloi( tormtd element of former; Adam v. Folger. 120 ^■ed. 203, hold- 
^ pQjger wator heater Infringed by Adam heater, which altered 




• 



101 U. S. 337-346 Notes on U. S. Reports. 29G 

the arrangement and position, but retained the functions of supple- 
mental valve, position not being material; Pittsburg Meter Go. y. 
Pittsburg, etc., Co., 109 Fed. 651, holding patent for prop9rtional gas 
meter governing the combination as a whole not infringed by meter 
which was a noninterchangeable valve; Dowagiac Mfg. Ck>. v. Smith, 
108 Fed. 70, holding Hoyt seeder patent infringed by Peoria seeder, 
in which spring clamps of former were displaced by placing ends of 
springs over bolt 
Syl. 3 (IX, 962). Specifying parts makes every part materiaL 
Approved in Hubbell v. United States, 179 U. S. 84, 45 L. 99, 21 
Sup. Gt 27, holding cartridge patent, where situation of vents ma- 
terial, not infringed by infringement of rejected claim; American 
Pneumatic T. Co. v. Philadelphia Pneumatic T. Co., 123 Fed. 896, 
holding Bates' patent drilling tool not infringed by Keller patent 
having valve and piston, where interchanging valves and pistons 
would render both inoperative; United Blue Flame Oil Stove Co. t. 
Glazier, 119 Fed. 164, holding reissue patent for vapor burner limited 
to specific structure claimed not infringed; Brammer v. Schroeder, 
106 Fed. 921, holding combination device for translating rotary 
motion of horizontal shaft into reciprocating rotary motion In wash- 
ing machine infringed by substantially similar device; National 
Hollow, etc., Co. V. Interchangeable, etc., Co., 106 Fed. 711, holding 
in action for infringing patent brake beam doctrine of mechanical 
equivalents is same in patent of combination as of single element; 
Mesick v. Moore, 100 Fed. 846, holding ratchet and locking devlee 
of Turner patent racer for braiding whip lashes not Infringed by 
Moore device using springs to restrain rollers. 

101 U. S. 337-341, 25 L. 960, RAILROAD v. TENNESSEE. 

(IX, 963). Miscellaneous. 

Approved in dissenting opinion in South Dakota v. North Carolina, 
192 U. S. 342, 24 Sup. 286, majority upholding Federal jurisdiction 
of suit by State of South Dakota as donee of holder of bonds of 
State of North Carolina secured by railway stock. 

101 U. S. 341-346, 25 L. 1010, LANGFORD v. UNITED STATES. 

SyL 8 (IX, 964). No implied contract — Use and occupation. 

Approved in United States v. Lynah, 188 U. S. 46i, 477, 23 Snp. Ot 
352, 353, 360, 47 L. 544, 551, holding United States liable for de- 
struction of rice plantation in improvement of Savannah river, gov- 
ernment making no claim to land; Bigby v. United States, 188 U. 8. 
405, 23 Sup. Ct 470, 47 L. 523, holding United States not liable in 
Federal courts for injuries received by negligence of servants is 
operating elevator in public building. 

Syl. 1 (IX, 964). Federal claims must rest on contract 
Approved tn Bigby v. United States, 188 U. S. 404, 23 Sup. Ot 470, 
47 L. 523, holding United States not liable in Federal court for dam- 



297 Notes on U. S. Reports. 101 U. S. 347-369 

. ases for Injuries received in elevator in public building occasioned 
by negligence of servants; Dooley v. United SUtes, 182 U. S. 226, 229, 
45 li. 1079, 1080, 21 Sup. Ct 764, 765, upholding Circuit Court's juris- 
diction of action for recovery of duties paid under protest on Porto 
Rican imports since plaintiff may sue on implied contract; BlUings v. 
State, 27 Wash. 293, 67 Pac. 585, holding State of Washington not 
liable for misconduct of commissioner of public lands in refusing to 
d^ver patent to which plaintiff was entitled. 

101 rr. S. 347-352. Not cited. 

IW U. S. 352-362, 25 L. 888, CHRISTIAN UNION v. TOUNT. 

8yl^ 1 (IX, 965). Foreign corporation must have State's consent 

Distinguished in Mandeville v. Courtwright, 126 Fed. 1011. hold- 
ing; 'tJiongh having no right to engage in business in Pennsylvania, 
^ew .Jersey dentist company not thereby made partnership to make 
meo^l^ers liable for torts. 

SF'I. 2 (IX, 965). Home State consenting, corporation operating 
outside. 

'^X>X)roved in Seattle Gas, etc.. Electric Co. v. Citizens* Light, etc., 
Pow^r Oo., 123 Fed. 592, holding New Jersey corporation without 
char^t^f power to engage in gas manufacture cannot do so in 
^*®t*lngton where it had not been reincorporated; Tootle v. Singer, 
118 Xowa, 536, 88 N. W. 447, upholding right of Missouri building 
aiul l^an association to operate in Iowa, having complied with Acts 
^^ Cten. Assem., chap. 76. § 1; State v. Topeka Water Co., 61 Kan. 
*^ 60 Pac. 343, upholding right of New Jersey corporation, em- 
po^etred by charter to own and operate water-works, to carry on 
btislxiess in Kansas; Coler v. Tacoma Ry. & Power Co., 64 N. J. Eq. 

^ 53 Atl. 687, upholding purchase and voting by New Jersey 
^'X>oration of stock in Washington corporation, such power given 
^^^arter and not contrary to Washington policy; People v. Martin, 
^^ K. Y. 321, 96 Am. St Rep. — , 67 N. E. 591, holding liable, 
^^^1" N. Y. Penal Code, § 9G, officer of Delaware corporation oper- 
^^^ in New York, swearing falsely to amount of paid-up capital; 
^^^r^^ V. National Loan, etc., Co., 49 W. Va. 334, 38 S. B. 656, holding 

*^^igan building association cannot enforce contract for loan in 
^^'t Virginia where such contract bad by West Virginia law for 
^^'^^^y and Indefinlteness. 

1^1 XJ. 8. 362-369, 25 L. 813, KAIN v. GIBBONEY. 

^yl. 2 (IX, 967). Indefinite charitable bequests unenforceable 
^ Virginia. 

'A.pproved in Harrington v. Pier, 105 Wis. 517, 76 Am. St. Rep. 
*^ ^ N. W. 356, upholding trust to promote " temperance work " 
^ the city of Milwaukee. 



I 

I 



lO: D, 8, 370-397 



I U. S. BcportB. 



101 V. S. 370-383, 25 L. 855. PHELPS V. HARRIS. 

Syl, 4 (IX, 908). Partition Included In power to sell, 

Dl still guisbed In Connor v. Alligator L. Co., 98 Fed. 157, holdlsf 
Federal court In partiUon suit may entertain receiver's bill In 
equity to protect possession and to require adjudication of de- 
fendant's adverse claim coustltutlng cloud on title. 
101 U. S. 384-391. 25 L. 982, THE SABINE. 

Syl. 2 (IX, 968). Salvage — Assle ting in marine periL 

Approved in Tbe Flottbek. 118 Fed. 9G0, upboldlng salvage 
claim of crew where towllne parted preventing ri-Bcue, and of tng 
prevented by blgli seas from reaching Imperilled vessel. 
101 U. S. 392-39T, 25 L. 1050, WHITNEY v. WYMAN. 

Syl. 1 (IS, 970). Intent governs agent's liability parol contracts. 

Approved In Sun Printing & Publisbicg Assn. v. Moore. 183 
U. S. ftlT, 48 L. 371, 22 Sup. Ct. 243, holding binding charter party 
by which manuging editor 6f newspaper agreed Cor company ab- 
solutely to return boat at end of service or pay S75,000 therefor; 
McKeen v. Providence County Say. Bank, 24 R. I, 543, 54 AtL 
50, sustaining verdict for plumber against principal of real es- 
tate agent, who hired bim to make alterations In principal's bouse, 
plumber Intending to charge principal. 

Dlatinguisbea In General Electric Co. v. Gill, 127 Fed. 243, hold- 
ing one signing acceptance of proposal to furnisli macblnery as guar- 
anty personally liable, although acceptance as previously signed 
showed other signers' agents. 

Syl. 3 (IX, 970). Ratifying Incipient corporation's contract by 
recognition. 

Approved In Barrows v. Natchang Silk Co., 72 Conn. 665, 45 
Atl. 054, holding stockholder, accepting dividend on Increased stock, 
estopped to avoid subscription because of corporation's failure to file 
certificate under Conn. Gen. Stat., i 1954; Wall v. Niagara Mining, 
etc.. Co.. 20 Utah. 484, 59 Pac. 401, holding corporation accepting 
benefit Of subscription made to promoter bound to fulfill contract 
to pay subscriber of land agreed per cent, additional to stoclE 
allotted. 

Syl. 5 (IX, 971). Stote only questions contracts not prohibited. 

Approved In Scott v. Deweese. 181 U. S. 211, 45 L. S27, 21 Sap. 
Ct. 53S, holding stockholder of national bank cannot escape liabil- 
ity to creditors on ground that increase was made before whole 
Increase was paid up as required; Blodgett v. Lanyon Zinc Co., 
120 Fed. 897, upholding action In Federal courts by foreign cor- 
poration on lease executed in Kansas, although not fully com- 
plying with Kansas law for operating therein; Shodtord t. De- 
troit, etc., Ry. Co., 130 Mich. 305. 89 N. W. 902, holding consoli- 
dated street railway cannot escape liability to creditors of con- 





2» Notes on U. S. Reporte. 101 U. S. 397-407 

ititnent company whose assets it accepted on ground that con- 
loUdation was illegal. 

Syl 7 (IX, 971). Disclosed principal's agent cannot be held. 

Approved In Second Nat Bank of Akron y. Midland Steel Ck>., 
K5 Ind. 587, 58 N. E. 835, holding note signed " R. J. B., Presi- 
dent" corporation name appearing on same paper, may be shown 
to be corporation's note; Morrison v. Barchtold, 93 Md. 329, 48 
AtL 930, admitting parol evidence to show contract for electrical 
apparatus purchased by defendants was intended by all parties 
to be purchased for N. company; Emery-Bird-Thayer Co. v. Coomer. 
^ Mo. App. 407^ holding daughter purchasing goods, as known 
a^ent for mother, cannot be held personally liable therefor. 

IW U. S. 397-403, 25 L. 1013, ALDRIDGB v. MUIRHEAD. 

SyL 3 (IX, 972). Assignor's wife's property unavailable for debts. 

Approved in Kendall v. Beaudry. 107 Wis. 184, 83 N. W. 310. 
holding where husband failed in business and third party advanced 
money to wife to run it, if she would hire husband, business 
belonged to wife. See 77 Am. St. Rep. 105, note. 

1^1 U. S. 403-407, 25 L. 866, BANK v. SHERMAN. 

^Jh 2 (IX, 972). Assignment vests in trustee when filed. 

'Approved in In re Tune, 115 Fed. 913, holding where adjudica- 
tion of bankruptcy destroys State court's Jurisdiction based upon 
prior attachment, ofllcer of such court becomes bailee for one 
^ntlUed; Wayne, etc.. Mills v. Nugent, 104 Fed. 534, upholding 
'^'eree's jurisdiction^ to require son to whom father on eve of 
"^'^i^ptcy had given money as custodian to pay it to trustee; 
^0 re Fixen, 102 Fed. 297, holding, under bankruptcy act 1898, 
' ^^S". credit(Nr receiving partial payment after insolvency, and 
'nfliln four months of bankruptcy, must surrender preference or 
'^ t>alance; Elmore v. Symonds, 183 Mass. 322. 67 N. E. 315. 
floldlx^jr trustee's right to rents of tenants by curtesy, accruing 
**^ petition filed, superior to right of mortgagee if mortgage 
**«<^t:ed in wife's lifetime. 

^^tinguished in In re Mullen, 101 Fed. 417, holding attaching 
^'^^^'tor of grantee of bankrupt in fraud of creditors gets right 
^Salix^t land superior to trustee in bankruptcy. 

®^1- 8 (IX, 973). Ck)urts must execute law as found. 

-^t^Xiroved in In re Fixen, 102 Fed. 299. holding, under bankruptcy 
*^ ^^98, S 57g. creditor receiving partial payment after insolvency 
^^^ ^^ithin four months of bankruptcy must surrender preference 
^ ^o«« balance. 

®!^1- 4 (IX, 973). Amending petition of bankruptcy. 

'^K^X>roved in In re Glass, 119 Fed. 511, allowing amendment to 
specifications opposing bankrupt's discharge where, if properly 
Wealed, might create bar. 



101 U. S. 407-426 Notes on U. S. Reports. 800 

Syl. 5 (IX, 973). Bankrupt's property dealt with at perlL 
Approved in Mueller v. Nugent, 184 U. S. 14, 46 L. 411, 22 Snp. 
Ct 275, upholding power of Bankruptcy Court to compd non- 
competing third party by imprisonment to deliver to trustee prop- 
erty transferred before petition filed; In re Reynolds, 127 Fed. 
762, holding invalid seizure of property in possession of bankrupt 
five days after bankruptcy petition filed, ' adjudication vesting 
property in court; In re Antigo Screen Door Co., 123 Fed. 254, hold- 
ing, under Wisconsin law, chattel mortgage giving mortgagor right 
to make sales from mortgaged property void as to trustee in 
bankruptcy; Chesapeake Shoe Co. v. Seldner, 122 Fed. 596, hold- 
ing unrecorded contract of conditional sale of shoes void as against 
trustee in bankruptcy; In re Davis, 119 Fed. 953, upholding Bank> 
ruptcy Court's jurisdiction to compel bank to pay to trustee fondft 
deposited with it by bankrupt; In re Gutman, 114 Fed. 1010, hold- 
ing mortgagee of bankrupt, taking possession after bankruptcy* 
gets no legal possession since bankruptcy act 1898, § 70, vests 
title in trustee on bankruptcy; In re Krinsky, 112 Fed. 975, hold- 
ing injunction of Bankruptcy Court, restraining sale of bankrupt 
property, unnecessary to put assignee and others in contempt, knowl- 
edge of petition being sufiQcient; Norcross v. Nathan, 99 Fed. 417, 
upholding jurisdiction of District Court of suit by trustee to set 
aside alleged fraudulent conveyance of property; Crosby v. Spear, 
98 Me. 544, 57 Atl. 882, holding plaintiff nonsuit in action of 
replevin for fixtures of bankrupt, fixtures being seized after adju- 
dication of bankruptcy. 

Distinguished in Kennedy v. Pierce's Loan Co., 100 Mo. App. 
272, 273, 73 S. W. 358, upholding, under bankruptcy act 1898, pledge 
by bankrupt after involuntary petition filed to secure advances 
made by defendant without notice and in good faith. 

101 U. S. 407-417, 25 L. 1015, COUNTY OF LIVINGSTON v, DARL- 
INGTON. 
Syl. 6 (IX, 974). Securing reform school location public purpose. 

Approved in Southern Ry Co. v. St. Clair Co., 124 Ala. 501, 27 
So. 28, upholding tax imposed by St. Clair county under Ala. Acts 
1894-95, p. 914, to provide better support for schools of the county. 

101 U. S. 417-426, 25 L. 1052, MOHR v. MANIERRE. 

SyL 5 (IX, 970). Citation for benefit of adverse interests. 

Approved In Mitchell v. Peoples* Sav. Bank., 20 R. I. 507, 40 AtL 
504, 505, holding under R. I. Gen. Laws, chap. 196, S 41, notice 
to nonresident ward unnecessary on guardian's application before 
Probate Court for authority to remove property. 

Distinguished in Bloor v. Smith, 112 Wis. 348, 87 N. W. 873, up- 
holding under Wis. Rev. Stat. 1898, § 4030, answer of beneficiary 
under will that trustee had no authority to mortgage and gave 
Uifant beneficiary no notice. 



aOX Notes on U. S. Reports. 101 U. S. 426-443 

lOl TJ. 8. 42e^2, 25 L. dS5» GUNTON y. CARROLL. 

Syl. 2 (IX, 077). Laches — When not bar to suit 

ApproTed in Rcavis y. Reayis, 103 Fed. 818, holding Missouri 

lieirs of California decedent not barred by eight years' delay in 

asking appointment of administrator from suing to recoyer property; 

Cleaver v. Taylor, 98 Fed. 907, enforcing contract to sell land made 

eight years before when plaintiff consented to decree of title In 

defendant; dissenting opinion in Hendryx y. Perkins, 114 Fed. 827, 

^ority holding delay of nine years with knowledge of decree bars 

^UI to vacate such decree for fraud. 

IW U. 8. 433-438, 25 L. 937. SOUTH CAROLINA y. GAILLARD. 

Syl 2 (IX, 977). Repealing statute ending pending suits. 

"Approved in Richardson y. United States Mort, etc., Co., 194 111. 
^' 62 N. E. 808, holding 111. Laws 1901, p. 96, making disconnection 
^^ territory from cities discretionary with city council instead of 
mandatory, applied to pending suit 

^yl 3 (IX, 977). State may change remedy. 

Approved in Griffin y. Payne, 22 Tex. Ciy. 622, 55 S. W. 758, hold- 
''^g refusal of request for submission of special Issues prior to 
^^ A.cts 1899, making granting discretionary, not reyersible error. 

1^1 0"- S. 439-143, 25 L. 1055. WHEELER y. INSURANCE CO. 

Syl. 2 (IX, 978). Mortgagor's glying mortgagee equitable insur- 
ance lien. 

Approyed in American Ice Co. y. Eastern Trust Co.. 188 U. S. 631, 
^ 8ui>^ Ct 434, 47 L. 620, holding proceeds of policies taken out by 
mortgagor's assignee for benefit of creditors inures to trustee where 
mortgage proyldos for insurance as security; Howard v. Delgado Sc 
Co., 1^:1 Fed. 32, upholding lien on sugar coming to receiver's hand, 
of central refinery, created by a]^eement ship all sugar products to 
plalntlfj secure advances made by him; In re West Norfolk L. Co., 
112 Ped. 762, holding proceeds of insurance policy pledgeu to secure 
larger debt not part of debtor's estate reachable by other creditors, 
but belongs to pledger; Southern, etc., Assn. v. Miller, 110 Fed. 38, 
holding payment of premiums by mortgagee whereby mortgage mort- 
gagor agreed to do so. no bar to recovery of mortgage debt where 
iMWer insolvent; In re Wittenberg, etc., Co.. 108 Fed. 597, hold- 
^g Suitable lien created by agreement of corporation mortgagor to 
^P insurance policies in force as security for new advances made 
by mortgagee; Farmers' Loan, etc., Co. v. Penn Plate Glass Co., 
108 Fed. 151, refusing to recognize mortgagee's equitable lien upon 
proceeds of insurance taken for own benefit by grantee of equity 
«^ redemption. 

^distinguished in Farmers' Loan & T. Co. y. Penn Plate Glass Co., 
^ U. 8. 456, 46 L. 1246, 22 Sup. Ct 851, holding no obligation on 



101 U. S. 443-464 Notes on U. S. Reports. 302 

purchaser of mortgaged property to insure for mortgagee's benefit 
where mortgage provide sale to be satisfaction of mortgage. 

101 U. S. 443-452. 25 L. 1057. BROOKS v. RAILWAY CO, 

Syl. 3 (IX, 979). Subcontractor's lien extending over whole 
railroad. 

Approved in Ban v. Columbia So. Ry., 117 Fed. 36, upholding, 
under Or. Laws 1885. subcontractor's lien upon extension of 
railway only instead of entire road; Connor y. Tennessee Cent. Ry., 
19 Fed. 939. holding a portion of right of way and roadbed of 
railroad cannot be sold separate from whole, such being cloud on 
remaining portion. 

101 U. S. 453-404, 25 L. 1061, THE CITY OF PANAMA. 

Syl. 3 (IX, 981). Congress providing admiralty jurisdiction. 

Approved in Downes v. Bidwell, 182 U. S. 290, 45 L. 1108, 21 
Sup. Ct 788. upholding power of Congress to provide revenue and 
civil government for Porto Rico. 

Syl. 6 (IX, 982). Vessel-owners must give passengers great care. 

Approved in Elder Dempster Shipping Co. v. Pouppirt, 125 Fed. 
737, holding libelant barred from recovery for injury from timber 
where he was standing near when crew were tearing down struc- 
ture; In re Califcrnla Nav., etc., Co., 110 Fed. 672, holding explosion 
of steam drum on steamer causing injury and' death of passengers 
prima facie evidence of negligence; Farmers' Loan, etc., Co. v. Balti- 
more, etc., Ry.. 102 Fed. 18, holding passenger traveling on free 
pass stipulating assumption of risk may recover for injury caused 
by negligence of defendant's servants. 

Distinguished in Pouppirt v. Elder Dempster Shipping. 122 Fed. 
989. holding foreign shipowner liable to passenger for injury from 
timber thrown over vessel's side without warning; reversed In 125 
Fed. 737. 

Syl. 7 (IX. 982). Damages largely in Jury's discretion. 

Approved in Pouppirt v. Elder Dempster Shipping, 122 Fed. 903, 
holding $12,000 damages to surgeon twenty-eight years old with 
$3,000 practice for injury necessitating $2,000 operation and leaving 
plaintiff permanently paralyzed; reversed in 125 Fed. 737; Western 
Gas Const. Co. v. Danner. 97 Fed. 890, holding in action for personal 
injuries received from falling smol^estack. question of damages for 
Jury; Mabroy v. Gravel Road Co., 92 Mo. App. 606, holding sufficient 
proof of value of time lost by railroad accident to show that plain* 
tiff was farmer accustomed to worlc on farm. 

(IX. 980). Miscollaneous. 

Approved In Downes v. Bidwell, 182 U. S. 289, 45 L. 1107, 21 Sup. 
Ct 787, holding Constitution everywhere and at all times potential 



M Notes on U. S. Reports. 101 U. S. 466-479 

where provlsloiis applicable; The Energia, 124 Fed. 844, upholding 
Ueo created by Ballinger's Anno. Codes & Stat, SS 6853, 5954, on 
y^sel for refuel to carry cargo from Washington port; Bruce v. 
^orray, 123 Fed. 370, holding improper Joinder of actions for fore- 
closure of mortgage on vessel and to enforce seamen's lien for 

101 U. 8. 465-471, 25 L. 987, 8ILLIMAN v. UNITED STATES. 

Sjl 1 (IX, 982). Refusal of agreed rate not duress. 

Approved In New Orleans, etc., R. R. Ck>. v. Louisiana Const., etc., 
Co.^ 109 La. 25, 94 Am. St Rep. 395, 33 So. 56. holding wharfage 
does paid by owner of wharf for vessels landing there, where oppor- 
tunity to make test case existed, not payment under duress. See 
94 Am. St Rep. 409, note. 

101 TJ. S. 472. Not cited. 

101 V. S. 473-479, 25 L. 800, MARQUEZ v. FRISBIE. 

Byt 2 (IX, 983). No mandamus interfering with public lands. 

Approved in Bockflnger v. Foster, 190 U. S. 125. 23 Sup. Ct 839, 
47 ix 979, holding claimant under homestead laws cannot sue 
Oklahoma townslte trustees to divest them of title held under 
26 8Ut at Large, 109; United States ex rel. Riverside Oil Co. v. 
Hitchcock, 190 U. S. 324, 23 Sup. Ct. 701, 47 L. 1078, refusing man- 
^Amiu to compel secretary of Interior to vacate decision rejecting 
election of land for failure to show land vacant and open to 
settlement; C:k)smos Exploration Co. v. Gray Eagle Oil Co., 190 
U- 8. 308, 23 Sup. Ct 695, 47 L. 1070, refusing to determine rights 
of claimants to lands in lieu of forest reservations where general 
l^d office had not approved of entryman's selection thereof; North- 
em Lumber Co. y. O'Brien, 124 Fed. 822, refusing to adjudicate on 
T^Sht to land before patent issued, but enjoining removal of timber 
^ one claimant; Cosmos Exploration Co. v. Gray Eagle, etc., Co., 
^ Fed. 8, holding no Federal Jurisdiction to determine right of 
Uen lands where defendant in possession exploring for oil and 
Plaintlfr claiming nonmineral, title being in government; Humbird 
▼• Atery, 110 Fed. 471, dismissing bill in equity to determine right 
^ land within indemnity limits of grant to railroad where no 
patents had issued to any one; Savage v. Worsham, 104 Fed. 118, 
holding no bill in equity to determine rights of parties to land where 
tttle remains in government and contest inter partes pending; 
Mordg V. Hine, 2 Ariz. 167, 11 Pac. 555, upholding land depart- 
fflenfg decision that receiver acting as register under department's 
<*Wer8 was de facto officer; Railway Co. v. Pratt, 64 Kan. 122, 67 
^•c. 4^^ holding one contracting for purchase of land may recover 
^^ paid thereon, on inability of vendor to obtain title from 
'^^fiMUnent; St Paul, etc., Ry. Co. v. Olson, 87 Minn. 121, 91 N. W. 



101 17. S. 470-503 Notes on U. S. Reports. Z04t 

29C, 94 Am. St. Rep. 690, holding period of litigation of right to 
land before land department not a part of Statute of Limitation, to 
establish defendant's adverse possession title; Wiseman t. East- 
man, 21 Wash. 174, 57 Pac. 400, 401, 402, holding allegation that 
defendant, patentee, had conveyed land in controversy to grantee 
who claimed title prior to contest insufficient to warrant review 
of patent grant; McCord v. Hill, 111 Wis. 513. 84 N. W. 33, hold- 
ing where under act 1891, homesteader's application to change to 
cash entry refused, but under net 189G, entitled to confirmation, 
wrongful patentee holds as trustee. 

SyL 4 (IX, 984). Land department decisions within authority 
binding. 

Approved in King v. McAndrews, 111 Fed. 865, holding land 
department's decision as to land not intrusted to its disposition 
open to direct attack; James v. Germania Iron Co., 107 Fed. 001, 
holding decision that second instead of first entryman after notice 
of invalidation of prior entry entitled to patent erroneous ln«law 
and open to direct attack. See 75 Am. St. Rep. 882, note. 

SyL 5 (IX, 985). Land decisions on facts conclusive. 

Approved in Deweese v. Smith, 106 Fed. 446, holding in attacking 
comptroller's second levy upon shareholder of national bank for 
mistake, facts must be fully set forth. 

101 U. S. 479-494, 25 L. 939, PLANING MACHINE CO. T. KEITH. 

(IX, 986). Miscellaneous. 

Approved in Thomson-Houston El. Co. v. Nassau El. Co., 96 
Fed. Ill, holding use of magnet to prevent formation of arc be- 
tween separated portions of switch when electric current broken 
not patentable, use being well known. 

101 U. S. 494-^503, 25 L. 1065, BAKER v. HUMPHREY. 
Syl. 2 (IX, 987). Quitclaim grantee not bona fide purchaser. 

Approved in Trice v. Comstock, 115 Fed. 768, holding assignee 
of executory contract of option to purchase takes rights of assignor 
only; Messenger v. Peter, 129 Mich. 99, 88 N. W. 211« holding In 
suit to quiet title unrecorded deed superior to quitclaim deed from 
common grantor. 

Distinguished in Boynton v. Haggart, 120 Fed. 822, holding under 
registry statutes grantee under quitclaim deed without notice takes 
priority over prior unrecorded transferee. 

Syl. 3 (IX, 987). Admissions against grantor's interest and prlTles. 

Approved in Allen v. Frawley, 106 Wis. 644, 82 N. W. 694, up- 
holding executors' claim for reconveyance of land obtained by con- 
spiracy of defendant's attorney who by false representations m- 
cured note and mortgage from deceased. 



m 



Notes 



U. S- Ki-lii> 



XOl U. S, 5<.13-514 



SfL i (K, 98T), Taxation of personalty. 

Approved la Comptolr Nat., etc., de Parla r. Board of Assesaora, 
12 La. Ann. 1329. holding oonnegotinble Dotes representEng loans in 
I/ialsIaniL. made b; corporation operating therein, kept witliln State. 
■n tsisDle Iberein. 
SrL 5 iIX, 938). Attorney cannot ac(|ulre ndrerse Intereat. 
Approved In Stanwood v. WIsliard. 128 Fed. 502. holding attorney 
purchasing lands in litigation, though with own money, enn hold 
00 adverse Interest to client but holds as trustee; Garlnger v. Pal- 
mer, 126 Ted. 915. holding attorney having served husband and 
'l/e In land transactions and litigation cannot purchase judgment 
•Bafnst husband and enforce same against lands held hy wife; 
Oilliert V. Murphy, 103 Fed. 532. holding attorney for receiver 
when sned for accounting for money received by former from 
ittachnent to satls^ claim purchased by blm against estate, can- 
OQt Jeny receiver's claim. Securiiy Savings Soc. v. Cohalan, 31 
Wash. 270. 71 Pac. 1021. holding corporation otilalning note and 
mortgage at large discount ttirougli its director, also attorney of 
Dortgagor, could forecloae only to extent of amouut paid, 
(IX, m~). MIecellaneous. 

'Approved in Warren v Robinson. 21 Utah, 444. 61 Pac. 30, hold- 
'"B breach of duty by officers of bank acting In fiduciary capacity 
•DJOants to constructive fraud, liability for which not discharged 
"^ 'bankruptcy. 

"^' tr. S. 503-614, 25 L. 829. HAIA. v RCSSELL. 
^J"'- 2 |1X, 9SS). Grant Indicating future grantee In fnturo. 
^^t»roved In Jamestown & Northern 11. It. Co. v. Jones, 177 U. S. 
^^- 4^ L. 700. 20 Sup. Ct. S70. holding location and construction of 
"^^ entitles railroad to benefits of land grant of act March 3, 1875. 
^*- 3 (IS, 888). CongrcBBlonal grant also law. 
^OiKJroved in Oregon & Cal. R. R. v. United States. ISO U. 8. 195, 
® ^Xap. Ct. 677, 47 L. 1016. holding lands seltli^d under Or. do- 
"■"^^Xi act. September 27, 1850, but abandoned fifteen years before, 
*'tt»^>ut fulfilling conditions, not reserved from operation of lieu 
•"■* grant; Qulnji v. Ladd. 37 Or. 2IW. 270, 5!) Pac. 459. 460, hold- 
ing ^.^t September 27, 1850. gave mere right of possession until four 
yea«-^. rggjjenpp completed, hence buslmnd touk no curtesy rights 
whe^-* wife died before. 

S:»-l, 5 (IX, 989). Settler's heirs take as grantees. 
*-tiproved In M'Gune t. Esslg. 122 Fed. 591, holding widow mak- 
VoE Qnal proof of homestead takes absolute interest, children taking 
DO interest by descent, nlHriuing 118 Fed. 281; Aspey r. Barry, 
13 ^ Dak. 223. 83 N. W. 91, holding belrg of one filing timber 
Vol. 11—20 



101 U. S. 514-550 Notes on U. S. Reports. 806 

culture claim, receiving patent after father's death, take as direct 
grantees of government 

101 U. S. 514-^21, 25 L. 929, VANCB v. BURBANK. 
Syl. 1 (IX, 989). Land department decisions ^udiciaL 

Approved in O'Connor v. Gertgens, 85 Minn. 498, 89 N. W. 872, 
upholding ruling of land department that original patentee of lands 
was bona fide purchaser within 26 Stat. 496; Wiseman y. Eastman, 
21 Wash. 174, 57 Pac. 400, 401, holding insufficient, to warrant re- 
view of patent grant to defendant, allegation of conveyance by 
latter before contest and claim of title by defendant's grantee. 

Syl. 2 (IX, 990). Fraud must injure unsuccessful party. 

Approved In Bailey v. Willeford, 126 Fed. 807, holding defendant 
liti;;atiiig seduction charge through State courts of North Carolina 
< aiinot remove case to Federal court on ground of prosecutrix's 
perjury: Pepin v. Lautman, 28 Ind. App. 78, 62 N. B. 61, holding 
<!ereate(l party not entitled to new trial for perjury of adverse 
party where no continuance nor new trial asked when judgment 
rendered. 

Syl. 5 (IX, 991). Wife's rights depend on husband's compliance. 

Approved in Quinn v. Ladd, 37 Or. 269, 270, 59 Pac. 460, holding 
no curtesy In land on death of wife before expiration of four years' 
residence required by donation act September 27, 1850. 

101 U. S. 522-528, 25 L. 792, CANAL CO. v. RAY. 

Syl. 2 (IX, 992). Sealed contracts — Subsequent parol agree- 
ments varying. 

Approved In Copeland v. Hewett, 96 Me. 529, 53 Atl. 37, holding 
either party to contract to repair church may waive stipulation 
therein that no claim for alterations or additions not included 
tlierein shall be valid without writing. 

101 U. S. 528-540, 25 L. 912, RAILWAY CO. V. PHILADELPHIA. 

Syl. 4 (IX, 993). Statutory tax exemption must be clear. 

Approved In Lincoln St. Ry. Co. v. City of Lincoln, 61 Nebr. 122, 
84 N. W. 806, holding charter providing street railway to be sub- 
ject to all reasonable regulations imposed by ordinance not pre- 
clude State assessment to pave tracl^s conformably with street. 

101 U. S. 541^43, 25 L. 944, LOVELL v. DAVIS. 

Syl. 3 (IX, 993). Exception to overruling unanswered question 
nnavalling. 

Approved in Bingham v. Lipman, 40 Or. 369, 67 Pac. 100, holding 
ruling admitting irrelevant evidence harmless error, where record 
showed no answer to questions complained of. 

101 U. S. 5^3-550. Not cited. 



307 Notes on U. S. Reports. 101 U. S. 551-S67 

101 IJ. S. 651-«S5, 25 L. 1026, NOUGUB T. CLAPP. 

SyL 1 (IX, 994). Federal courts cannot annul State Judgments. 

Approved in National Surety Go. v. State Bank, 120 Fed. 604, 
enjoining plaintiff from enforcing Judgment obtained in State 
court where defendant prevented from defeasing by State officer's 
failure to notify of action; Central Trust Co. v. Western, etc., Co., 
112 Fed. 476, enjoining execution of State court against property of 
railroad of which Federal court previously decreed foreclosure 
and sale free from those claiming through mortgagor; Phelps v. 
Mutual, etc., Assn., 112 Fed. 4G3, holding under Rev. Stat.. § 720, 
Federal court not authorized to enjoin receiver appointed by State 
court from acting under such appointment See 94 Am. St. Rep. 
56, note. 

101 U. S 555-567, 25 L. 961, DURANT v. ESSBX CO. 

Syl. 2 (IX, 995). Circuit Court must execute supreme mandate. 

Approved in The Union Steamboat Co., 178 U. S. 319. 44 L. 1085, 
20 Sup. Ct 905, holding question of recoupment of damages to 
cargo from moiety of damages awarded to colliding vessel left 
open under mandate to enter decree conformable with appeal; 
Hawkins y. Cleveland, etc., Ry., 99 Fed. 323, denying motion to 
DJodify mandate of Circuit Court of Appeals on reversing decree 
^d commanding further proceedings not inconsistent with opinion. 

IW U. 8. 557-567, 25 L. 892, SHAW v. RAILROAD CO. 
^7^1. 4 (IX, 996). Bill of lading representing goods named. 

-APl>roved in The Carlos F. Roses, 177 U. S. mZ). 44 I^ 033, 20 
S% Ot 807, holding cargo of beef and garlic shipped on Spanish 
vessel from Montevideo to Havana, captured after war, d<eclared 
enem^ property, subject to seizure; The Prussia, 100 Fed. 480, hold- 
^i c^onsignee of shipment of horses by bill of ladlnj? to consignor's 
order^ got no title sufficient to maintain suit against vessel for 
nondelivery 

Syl. 5 (IX, 997). Strict construction of derogating statutes. 

Apt>roved in Whitfield v. ^tna Life Ins. Co , 125 Fed. 270, holding 
Ho. :Rev. Stat. 1899, § 7806, making suicide no defense unless con- 
templated when insured, does not prevent contract reducing policy 
on death by suicide; M'Dermon v Southern Pac. Co., 122 Fed. 674, 
holding Mo. Rev. Stat. 1889, § 2876, abolishing fellow-servant rulo. 
inapplicable to invalidate contract of Pullman porter assuming 
risks of accidents; Johnson v. Southern Pat*. Co., 117 Fed. 4(;r», 
liolCling no recovery under act March 3, 1893, requiring automatic 
couplers on Interstate commerce train, where plaintlfl' tried to couple 
catB with link; Foerderer v. Tradesmen's Nat. Banli, 107 Fed. 221, 
holding stipulation between shipper and defendant unsuccessfully 
seizing goods in replevin, by which latter paid price keeping goods, 
amounted to sale under Pa. factors act, § 3; Searlea Bros. v. Grain 



101 U. S. 567-572 Notes on U. S. Reports. 308 

Co., 80 Miss. 693, 32 So. 288, holding bank buying draft from 
vendor, to which bill of lading attached, assumes assignor's liability 
to buyer for failure to deliver com; Anderson y. Portland F. M. 
Co., 37 Or. 489, 60 Pac. 841, holding warehouse receipt not ne- 
gotiable instrument to exclude parol evidence to show signer only 
agent of party bound; dissenting opinion in Ghauncey y. Dyke 
Bros., 119 Fed. 17, majority holding under Ark. act 1895, Hen of 
laborers and materialmen superior to mortgngee*s as to money ad- 
vanced to mortgagor not used in construction. 

101 U. S. 667, 568, 25 L. 815, NATIONAL BANK v. CARPENTER. 
Syl. 1 (IX, 998). Bill showing laches on face demurrable. 

Approved In Peters v. Hanger, 127 Fed. 821, holding defendant 
charged with infringement of patent need not plead Statute of 
Limitations of Rev. Stat, § 4921, to avail himself of failure of proof; 
Phillips V. Plney Coal Co., 53 W. Va. 547, 44 S. B. 776, holding 
action by married woman to reform deed executed ten years before 
barred by laches, no satisfactory reason being given for delay; 
Beecher v. Foster, 51 W. Va. 617, 42 S. E. 652, holding in action to 
enforce collection of claims against property of debtor assigned 
to trustees, statute begins from commission of wrong complained 
of; Bailey v. Calfee, 49 W. Va. 646, 39 S. E. 648, holding admin- 
istrator's bill for recovery of land and profits barred by unex- 
plained delay In bringing suit, testator having died two years. 

Distinguished in Copeland v. Bruning, 104 Fed. 170, holding 
where appeal must be brought within six months equity will not 
allow bill of review thereafter. 

Syl. 3 (IX, 999). Amendment discretionary under equity rule 35. 

Approved in Edward P. Allis Co. v. Withlacoochee L. Co., 105 
Fed. 682, sustaining refusal to allow amendment on application 
four months after demurrer sustained where bill as amended not 
liled for four months more; Boston, etc., R. K. Co. v. Parr, 98 Fed. 
4S4, refusing leave to amend asked one year after demurrer sus- 
tained in suit to charge directors with statutory liability for trans- 
actions many years old. 

101 U. S. 569, 570, 25 L. 791, UNITED STATES v. DAWSON. 

Syl. 1 (IX, 999). Finding of facts not reviewable. 

Approved in American Sales Book Co. v. Bullivant, 117 Fed. 200, 
holding findings of fact by court in action without jury in suit for 
infringement of patent, not reviewable on writ of error. 

101 U. S. 570-572, 25 L. 868, BUTTERFIELD v. SMITH. 

Syl. 1 (IX, 999). Adjudicated settlement of executors bind par- 
ties. 

Approved in Overby v. Gordon, 177 U. S. 227, 44 L. 746, 20 Snift. 
Ct. 608, holding adjudication of fact of domicile of decedent, on 



300 Notes on U. S. Reports. 101 U. S. 572-590 

grant ^^f administration without contest, on published notice has 
no fox-«ce outside jurisdiction; Hampton y. Foster, 127 Fed. 469, 
holdin.S' question of trustee*s power to purchase shares in national 
banis -^« determine liability of trust estate not determinable in 
actioik at law; Butterfield v. Smith, 108 Fed. 925, holding decree In 
suit ixi^Tolvlng land sustaining defendant's title binds those in 
priTity of estate with plaintiff, here plaintiff's grantee. 

101 XT. a 672-676. Not cited. 

101 U. S. 677-590, 25 L. 963, WALDEN v. SKINNER. 

^y^- 3 (IX, 1000). Equity reforming instruments not expressing 
agreement 

-Approved in Webb v. Hammond, 31 Ind. App. 618, 68 N. E. 

^1^ holding sufiBicient declaration for reformation of written con- 

"*<i^ for exchange of land and payment per acre for excess acreage 

^"ere parties mutually mistook such excess; Smelser v. Pugh, 

-J^nd. App. 620, 64 N. E. 945, reforming contract of dissolution 

X^artnership which by scrivener's mistake, and against agree- 

^^t of parties, made plaintiff liable for all partnership debts; 

^'^trrlch V. Hutchinson, 73 Vt 142, 87 Am. St. Rep. 703, 50 AU. 

^> holding mortgagee-grantor entitled to cancellation of deed 

^*^iii8t mortgagor's grantee where mortgage void by Vt Stat, 

^^ ^209, 2646, for failure of husband to Join; State of Washington 



^' -■^-orenz, 22 Wash. 298, 60 Pac. 647, holding grantee may obtain 
^^Ormation of deed conveying water right containing mutual 
^^^^ake, where right asserted after eight years, grantor making 
^^ adverse claim. 

^^^L 7 (IX, 1001). Federal Jurisdiction depending on real parties. 

•^-^proved In Hyde v. Victoria Land Co., 125 Fed. 973, holding 

'®^*:fc.^er of register of deeds, a purely formal party, in action for 

^^^^f against contract for sale of land does not prevent removal; 

^^^^crthers v. M'Klnlay Min., etc., Smelting Co., 122 FeU. 309, hold- 

'°^ foreign corporation's resident agent not party defendant in 

'^^'t: against corporation in ejectment to prevent Federal Jurls- 

^'^tiion; Person v. Illinois Cent. R. R. Co., 118 Fed. 344, holding 

^®^^^der of lessor with lessee of railroad in suit for employee's 

"^^-tt, lessee's liability being doubtful, cannot be said to be solely 

^® defeat Jurisdiction; Reese v. Zinn, 103 Fed. 97, holding Federal 

^"^^^'8 Jurisdiction over suit to cancel lease not defeated by 

J®^i:kder with defendants of formal parties, residents, against whom 

°^ xelief asked; United States v. Henderlong, 102 Fed. 5, 6, hold- 

*^^ Federal courts have no Jurisdiction over suit for lumber fur- 

^^l^ed to contractors building Federal post-office, sum being less 

^^n |2,000 and government mere formal party; Lake St. El. R. R. 

^' ^iegler, 99 Fed. 121, holding in suit against nonresident bond- 

hitlers for accounting Joinder by corporation of resident trustee 



101 U. S. 591-637 Notes on U. S. Reports. 810 

under trust deed, latter being formal party only, not defeating 
removaL 

101 U. 8. 591-^98. Not cited. 

101 U. S. 697-^1, 25 L. 1019, BBCHTEL v. UNITDD STATEJS. 

Syl. 1 (IX, 1002). Remedial procedural statutes liberally con- 
strued. 

Approved in Ex parte Reayes, 121 Fed. 850, holding, under Rey. 
Stat, § 1419, prohibiting enlistment of minors l>etween fourteen 
and eighteen, without parental consent, enlistment of such minor 
does not deprive father of right to control. 

101 U. S. 601-609, 25 L. 1070, CRAMPTON v. ZABRISKIE. 

SyL 2 (IX, 1002). Resident taxpayer preventing Illegal expendi- 
ture. 

Approved In Davenport v. Buffington, 97 Fed. 237, upholding 
municipal taxpayer's suit to enjoin sale of land dedicated by 
Cheroli:ee nation as public parl^; Wadsworth v. Concord, 133 N. 
C. 593, 45 S. E. 950, holding taxpayer may bring action to restrain 
town authorities from paying money, under lighting contract, void 
under N. G. Priv. Laws 1903, p. 146, for no election; Sligb v. 
Bowers, 62 S. G. 413, 40 S. E. 887, enjoining at suit of patrons 
of school district diversion of school funds by trustees, in building 
schoolhouse at place different from one designated by board; Austin 
V. McCall, 95 Tex. 577, 68 S. W. 794, holding city taxpayer may 
enjoin execution of contract to purchase water plant without pro- 
viding for sinking fund required by Tex. Const, art 11, S 5. 

Distinguished in iState (Mason, Prosecutor) v. Cranbury, 68 N. J. 
L. 164, 52 Atl. 574, upholding, under N. J. Laws 1809, p. 372, con- 
tract of township committee, for lighting of streets, sum called 
for being unappropriated. 

101 U. S. 610-621. Not cited. 

101 U. S. 622-633, 25 L. 1030, JONES v. GUARANTY & INDEM- 
NITY CO. 

SyL 5 (IX, 1006). State alone can question ultra vires. 

Approved in Scott v. Deweese, 181 U. S. 211, 45 L. 827, 21 Sup. 
Ct 588, holding stocli:holder in national banlc cannot escape lia- 
bility to creditors, under Rev. iStat, § 5151, on ground that his 
reissue stoclE was issued before capital paid in; Brittan v. Oakland 
Bank of Sav., 124 Gal. 291, 57 Pac. 87, holding creditor cannot 
avail himself of violation of Gal. Civ. Code, f 578, prohibiting, 
on penalty of losing ofiBice, directors or officers from borrowing 
from banks. 

101 U S. 633-637. Not cited* 



311 Notes on U. S. Reports. 101 U. S. 638-e64 

101 U. 8. 638, 639, 25 L. 1073, LUMBER CO. v. BUTCHELL. 
SyL 3 (IX, 1008). Judgment on referee's finding res adJudJcata. 

Approved in MitcheU v. First Nat Bank, 180 U. S. 481, 45 L. 

G32, 21 Sup. Ct 421, holding appearance in State court of claimant 

against insolvent estate, claim l>eing denied, prevents subsequent 

procee<ling in Federal court against insolvent; Wilcox, etc., Gibbs 

Sewing; Mach. Ck>. v. Sherborne, 123 Fed. 898, holding in second 

suit for accruing royalties on patent defense of invalidity of 

patent unavailable where plaintiff won on same defense in prior 

suit; Norton v. House of Mercy, 101 Fed. 386, holding New Yorlc 

cliaritable corporation, capable of holding realty to $50,000, cannot 

8ue in New York for Kentucky legacy, Kentucky court having 

detided adversely to claim; Kansas City, etc.. Park v. Kansas, 174 

Ho. 442, 74 S. W. 984, holding judgment enjoining collection of 

^c« on coriK)rate property on ground of exemption as used for 

'horticultural society res ad judicata as to subsequent like claim; 

New York, etc., Ins. Co. v. English, 96 Tex. 274, 72 S. W. 59. 

'^olO.ing in action on iK)licy payable in instalments, though com- 

P®^^'b liability in issue, judgment could not be rendered for whole 

*®oxint; Grunert v. Spalding, etc., 104 Wis. 214, 78 N. W. 613, 

^'^tng assignee of tax certificate privy to assignor, and bound by 

J^l'^^er adjudication, on another tax certificate that land was exempt 

*^ taxation. 

^^^ TJ. S. 63^-641. Not cited. 

^^^ 'tJ. S. 641-646, 25 L. 1075, KENNEDY v. CRESWBLL. 

^^*L 2 (IX, 1009). Defendant pleading false plea cannot answer. 

^tfitingulshed In Westervelt v. Library Bureau, 118 Fed. 826, 
^ ^ing, under equity rule 34, defendant may set up defenses by 
"*^"^er after plaintiff won on defendant's plea of prior invention 
^Xait for infringing patent 

^^1. 7 (IX, 1009). Decedent's creditors' bill to discover assets. 

^X>proved in Hale v. Tyler, 115 Fed. 839, holding Federal court 
^^ jurisdiction, diverse citizenship existing, of suit of creditor 
'^ ^«t aside conveyance by deceased of realty alleged to be fraud- 
•^^^t; Klrtley v. Holmes, 107 Fed. 9, allowing suit by creditor, 
'^"^Iver, against deceased stockholder's estate to charge lands 
^*^Veyed by heirs to widow subject to widow's statutory rights 
^^i^ein. 

^^^ TJ. S. 647-664, 25 L. 945, IMHAEUSER v. BUERK. 

^:r'I. 1 (IX, lOlOj. New combinations producing useful results 
Patentable. 

•Approved in Brammer v. Schroeder, 106 Fed. 921, holding Bram- 
^^^ combination device, for translation of continuous rotary mo- 
^^ of horizontal shaft into feci prooa ting rotary motion of ver- 
^^^"^ shaft, mechanical equivalent of Schroeder patent; National 



101 U. S. (iC5-C88 Notes on U. S. Reports. 812 

Hollow, etc., Co. T. Interchangeable, etc., Co., 106 Fed. 711, hold- 
ing Hien patent brake beam, for cars applying pressure through 
caps and nuts through •ends of compression member, not equiva- 
lent of prior patents. 

101 U. S. 665-677, 25 L. 1037, SCIPIO v. WRIGHT. 

Syl. 4 (IX, 1011). Municipal bonds issued to railroad void. 

Approved in Miller v. Perris Irr. Dist, 99 Fed. 146, holding recitals 
In irrigation district bonds alleging full compliance virith CaL act 
March 7, 1887, estop district as against bona fide purchasers to 
question bonds; Wilbur v. Wyatt, 03 Nebr. 263, 88 N. W. 500, hold- 
ing purchasers of county bonds with notice of noncompliance with 
requirement for two weeks* publication of notice of favorable vote 
cannot enforce same; Jeff Davis County v. National Bank of 
Paducah, 22 Tex. Civ. 160, 54 S. W. 40, holding bonds Issued by 
county for new courthouse and jail on change of county seat 
created debt against county though change illegal. 

101 U. S. 677-088, 25 L. 908, DOUGLASS v. COUNTY OF PIKE. 

Syl. 1 (IX, 1011). Under Missouri Constitution two-tblrds TOte 
insufficient. 

Approved in Pickett v. Russell, 42 Fla. 139, 28 So. 771, holding 
Fla. Laws, chap. 4336, requiring majority of those voting, consistent 
with Const 1885, art. 12, § 10, authorizing school tax levy on TOte 
of majority qualified electors; In re Denny, 156 Ind. 122, 59 N. E. 
366, holding majority required by Ind. Const., art 16, S 1, to ratify 
constitutional amendments, must be more than half of qualified 
voters at time. 

Syl. 2 (IX, 1002). Federal court disregarding conflicting State 
decisions. 

Approved in Alferitz v. Borgwardt, 126 Cal. 208, 58 Pac 462, 
holding contract made in reliance upon decision erroneously con- 
struing Cal. Civ. Code, § 2955, including wool in "increase" of 
sheep mortijyged, not impaired by reversal. 

Distinguish 3d in Mather v. San Francisco, 115 Fed. 45, holding 
city and county San Francisco liable on bonds Issued under CaL 
Stat 1875-76, p. 443, for widening of Dupont street; Falconer v. 
Simmons, 51 VV. Va. 177, 41 S. E. 196, holding certiorari allowed to 
serve purpose of appeal from judgment of justice though latest 
West Virginia adjudication overruled case so holding; Town of 
Weston V. Ralston, 48 W. Va. 190. 192, 36 S. E. 455, 456, canceling 
deeds obtained by property-owner to lands declared by Supreme 
Court to bo part of public way, although Circuit Court refused to 
award mandatory injunction as ordered. 

Syl. 3 (IX, 1012;. Change of judicial construction applied pro- 
spectively. 

Approved In Gulf & Ship Island R. R. Co. v. Hewes, 183 U. S. 71, 



313 Notes on U. S. Reports. 101 U. S. 688-692 

46 Lu 89, 22 Sup. Gt. 28, holding tax exemption which Miss, act 
February 23, 1882, § 18, assumes to give railroad thereby incor- 
porate^i, subject to amendment or repeal; Loeb v. Trustees 6t 
Co]nmT)la Township, 179 U. S. 492, 45 L. 291, 21 Sup. Ct. 182, hold- 
ing H^ederal court iu determining validity of bonds issued by Ohio 
towii^liip considers Constitutidn of State as construed by highest 
Stat& <H)urt when bonds issued; Mercantile Nat. Bank v. Lander, 
109 ^r»^d. 25, holding Ohio decision reversing prior holding allow- 
ing A^sductlon of indebtedness from tax valuation of national bank 
rbar^^ binds all stockholders after its rendition; Brattleboro Sav. 
Banfe V. Board of Trustees, 98 Fed. 532, holding Ohio law authoriz- 
Ipg tn-Tistees of township to issue bonds covering indebtedness, re- 
qnirLs:^^ no record of such, authorizes trustees to make recitals 
binding on county; Gross v. Board, etc., 158 Ind. 535, 64 N. E. 27, 
holdij:i.g county can recover fees paid treasurer between time act 
189U prohibiting receiving fees, was declared unconstitutional and 
revex-isal of such holding; State v. Mayor, etc., of City of Bristol, 
109 "X'enn. 323, 70 S. W. 1033, holding where municipal bonds have 
beea upheld by Supreme Court bona fide holders not alTected by 
Bubft^^uent change of interpretation; Sheaf er v. Mitchell, 109 Tenn. 
211» Tl S. W. 94, holding validity of tax deed must be determined 
^ l^r^ in force at time of sale. 

^i«thiguished in Lewis, Auditor, etc. v. Symmes, 61 Ohio St 
^®^' 76 Am. St Rep. 431, 56 N. E. 196, holding landowner within 
*®®^S8ment district defined in unconstitutional act for improvement 
^ Ptiblic highway may enjoin collection of assessment; Falconer v. 
^^iltHjaons, 51 W. Va. 174, 175, 176, 178, 41 S. E. 194, 195. 196, fol- 
^^"^Og case awarding certiorari as proper remedy to review Judg- 
^^t of Justice although such case had been overruled subsequently. 

<^^, 1011). Miscellaneous. 

-^I>proved In Yazoo, etc., R. R. Co. v. Adams, 81 Miss. 116, 32 

^- ©46, holding railroad property escaping taxation because of 

- ^^lid tax exemption clause in charter liable in hands of trans- 



for back taxes; dissenting opinion in In re Denny, 156 Ind. 
59 N. E. 373, majority holding Ind. Const., art 16, § 1, requiring 
c^rity of electors to ratify constitutional amendment, means more 
^ one-half qualified voters. 

^^^ XJ. S. 688-692, 25 L. 1C04, CASE v. BEAUREGARD. 

j^ ^^^1. 1 (IX, 1014). Adequate legal remedy prevents equitable re- 



"^X^proved in Sills v. Goodyear, 80 Mo. App. 133, enjoining repeated 
c?lT)le entries by insolvent trespasser, action of forcible entry 
detainer being inadequate; Early Times Distillery Co. v. 
«r, 9 N. Mex. 37, 49 Pac. 724, 725, holding under N. Mex. insol- 



101 n. S. 093-711 Notes on U. S. Reports. 814 

yency act 1889, where debtor assigns property in fraud of creditor!, 
it immediately becomes trust estate, available at once In equity. 

Syl. 2 (IX, 1014). Exhausting of legal remedies, how shown. 

Approved in Lazarus Jewelry Co. v. Steinhardt, 112 Fed. 618, 
G19, holding where statute makes Judgment lien on defendant's 
property execution unnecessary to entitle creditor to subject In 
equity property fraudulently transferred by debtor; Farson v. Sioux 
City, 106 Fed. 279, holding city issuing bonds for street Improvement 
becomes trustee chargeable by bondholders' suit in equity with 
properly collecting and applying assessments; Kuggles v. Cannedy, 
127 Cal. 303, 53 Pac. 916, holding adjudication of insolvency in 
absence of proof otherwise is proof of inadequacy of property to 
' pay debts In full; Early Times Distillery Co. v. Zeiger, 9 N. Mex. 
37, 49 Pac. 725. holding under N. Mex. insolvency act 1889, where 
debtor assigns property in fraud of creditors, it Immediately lie- 
comes trust estate available in equity; Fleischner v. Bank of Bfc- 
MInnville, 36 Or. 563, GO Pac. 605, holding supplemental complaint 
showing recovery of judgment against insolvent cures suit brought 
to set aside fraudulent conveyance, attachment being unnecessary. 

Distinguished in Montgomery v. McDermott, 103 Fed. 813, holding 
under N. Y. Code Civ. Proc, § 645, attachment on property held by 
trustee evidenced by certificates assigned by trustee to wife gaTe 
no lien. 

Syl. 4 (IX, 1017). Dismissing lien bill bars second suit 

Approved in Wilson v. Smith, 126 Fed. 919, holding decree of 
Orphan's Court dismissing petition for accounting of administrator 
for recovery of legacy constitutes bar to further litigation on same 
subject; Samuels v. Reviere, 108 Fed. 720, holding defense of home- 
stead set up in trespass suit to try title rendered res ad judicata by 
subsequent dismissal of bill to cancel deed for irregularities; Taylor 
V. Riggs, 8 Kan. App. 331, 57 Pac. 46, upholding right of creditors 
of copartnership whose claims are admitted by record to participate 
in distribution of partnership assets. 

101 U. S. 693-700, 25 L. 1005, ANTHONY v. COUNTY OF JASPER. 

Syl. 4 (IX, 1017). Bond purchaser chargeable with notice, laws. 

Approved in Geer v. School Dist. No. 11, 111 Fed. 688, holding 
school district empowered to issue bonds within limit liable to 
lender who ndvaiuced money on bonds void for excels; Debnam t. 
Chitty, 131 N. C. 679, 43 S. E. 10, holding township not estopped 
by recitals in bonds which wejre absolutely void for legislative non- 
compliance with N. C. Const., art. 2, § 14, requiring three readings of 
authorizing law; MoUer v. Galveston, 23 Tex. Civ. 699, 57 S. W. 
1119, holding r-!ty bonds issued when legally executed, certified by 
attorney-general, and registered by comptroller, though not sold. 

101 U. S. 700-711. Not cited. 



810 Notes on U. S. Reports. 101 U. S. 711-744 

101 U. a 711-721, 25 L. 872, EX PARTE RAILWAY CO. 

87I. 2 (IX, 1020). Mandamus enforcing mandates not dlscre- 
tloiuiry matters. 

Approved in King v. District Ct, 25 Mont 211, 64 Pac. 355, refus- 
ing mandamus to control discretion of inferior court, to compel it 
to hear motion for dissolution of injunction where court had dis- 
missed motion. 

Wl U. a 721-726, 25 L. 833, PHILLIPS v. GILBERT, j 

87L 1 (IX, 1020). Lien on row of houses yalid. 

Approved In Powell v. Nolan, 27 Wash. 343, 67 Pac. 720, upholding 
under Ballinger's Anno. Codes & Stat. § 5907, a lien filed 
^Sainst several houses for labor and material furnished under single 
contract 

^^ U. a 726-730. Not cited. 

^^^ U. a 731-744, 25 L. 816, STEWART v. PLATT. 

8yL 1 (IX, 1021). Partnership chattel mortgage void unless filed. 

-Approved In In re Cannon, 121 Fed. 585, holding unrecorded 
chattel mortgage of bankrupt's goods good under Code S. C, 
• 2-^56, against creditors at time mortgage given. 

^^I 2 (IX, 1022). Unfiled chattel mortgage binding l>etween par- 
ties^ 

^X^proved in In re Beede, 126 Fed. 866, holding prior general 

^^Itor reducing claim to judgment after filing of chattel mort- 

J*^^ may assert invalidity thereof for nondelivery of chattel; 

^ ^« Antlgo Screen Door Co., 123 Fed. 256, holding under Wlacon- 

^ law iK)ssession by unrecorded mortgagee before filing of bank- 

^"^cy petition validates mortgage as against general creditors; 

^e Standard Laundry Co., 116 Fed. 479, holding purchaser taking 

*^Ject to mortgage and assuming same, his trustee estopped 

Oeny mortgage; Duplan Silk Co. v. Spencer, 115 Fed. 005, up- 

^Xfilng as against contractor's trustee lien given by contractor to 

^^Iding-owner for advances made, on materials of contractor on 

^'^Xier's premises; Hutchman v. Le Roy, 113 Fed. 205, holding bank 

^^%tee liable to original pledgor of certificate where first pledgee 

'^^ledged to bank, for proceeds from sale after payment of Hen; 

^ <re Sewell, 111 Fed. 794, upholding, as against trustee of piircliasor 

^^ given to vendor on conditional sale of cash register, for piir- 

^^se price; Rowell v. Lewis, 95 Me. 87, 49 Atl. 424, holding as- 

*'**"*"''' for l>enefit of creditors not within Me. Rev. Stat., chap. 111. 



"^^niring recording of conditional sale; Sheldon v. Wickliain, 101 
^- X 506, 55 N. E. 1047, holding under N. Y. Laws 1858, chap. 314, 
*^H|gnee cannot treat as void chattel mortgage executed by as- 
*^%nior, though void for nonfiling under Laws 1833, chap. 279. 



101 U. S. 745-772 Notes on U. S. Reports. 316 

Syl. 3 (IX, 1022). Assignee taking property same as bankrupt. 

Approved in In re New York Economical Printing Co., 110 Fed. 
517, holding mortgagor bankrupting after failure of mortgagee to 
file mortgage, trustee could avoid mortgage only to extent of 
creditor's claims, enforceable at adjudication; Lyman v. National 
Bank, 98 Me. 458, 57 Atl. 801, holding deposit received tor safe- 
keeping and ultimately for benefit of creditors of depositor known 
to be insolvent belongs to trustee and not subject to bank's set- 
off. 

Distinguished in Haskell v. Merrill, 179 Mass. 124, 60 N. E. 486, 
holding transferee of machinery from bankrupt acquires no title 
as against trustee of bankrupt who was no party to bill of sale. 

Syl. 4 (IX, 1023). Assignee cannot assail husband's gift to wife. 

Approved in First Nat. Bank v. Pennsylvania Trust Co., 124 Fed. 
9G9, upholding lien on steel billets of company conveyed to bank to 
secure loans made prior to company's insolvency, though signs 
indicating bank's ownership wrongfully removed. 

Syl. 6 (IX, 1023). Fair exchange of securities permitted. 

Approved in Clarke y. Second Nat. Bank, 177 Mass. 265, 59 N. E. 
124, holding payment to bank by check of insolvent company on 
notes not yet due constituted preference recoverable by assignee. 

101 U. S. 745-754, 25 L. 1040, GODDARD v. ORDWAY. 

Syl. 2 (IX, 1024). Notice binding — Subsequent term — Unfinished 
business. 

Approved in Walker v. Moser, 117 Fed. 232, holding where at 
term of court at which Judgment Is rendered order granting leave 
to move for new trial may be decided at subsequent term; Graham 
v. Swayne, 109 Fed. 3G7, 368, holding motion for rehearing must be 
filed during term decree entered and called to court's attention to 
prevent decree passing from court's control. 

101 U. S. 755-772, 25 L. 915, WOLSEY v. CHAPMAN. 

Syl. 1 (IX, 1024). Lands reserved — Treaty, law, executive act. 

Approved in Lockhart v. Johnson, 181 U. S. 520, 45 L. 982, 21 
Sup. Ct. G66, holding land claimed to be within Mexican grant not 
withdrawn from entry under mineral laws by simple pendency of 
claim before land office; In re Brodie, 128 Fed. 668, holding Army 
Regulations, par. 940, providing for imprisonment under Rev. Stat, 
§ 239, rule promulgated by secretary of war and subject to modifica- 
tions by subsequent order; United States v. Holmes, 105 Fed. 45, 
holding 21 Stat. 315, allowing settlers upon lands within railroad 
withdrawal to purchase 160 acres from government, inapplicable 
to tract erroneously withdrawn from settlement; O'Connor v. Gert- 
gens, 85 Minn. 490, 491, 89 N. W. 869, upholding patentee's grantee's 
right to lands reserved by land department from settlement for bene- 



317 Notes on U. S. Reports. 101 U. S. 773-797 

fit of railroad grant and sold bona fide by railroad; Northern Pac. Ry. 
Co. V. Nelson, 22 Wash. 531, 532, 61 Pac. 70C, 707, holding withdrawal 
ordeir of commissioner of land office under 13 Stat 365, granting 
land to railroad on filing of location map, reseryation of land in- 
cluded; dissenting opinion in Hewitt v. Schultz, 180 U. S. 159, 45 
L. ^rXS, 21 Sup. Ct. 316, majority following land department's con- 
strctotlon of Northern Pacific grant act 1864, refusing to withdraw 
from settlement lines lands within indemnity limits, on approving 
loca^tlon map; dissenting opinion in Motherwell v. United States, 
107 :Ced. 452, majority opinion of district attorney on question of 
International law, attorney acting for executive department, may 
diselose facts but court determines their legal effect 

I>lstinguished in United States v. Blendauer, 122 Fed. 707, hold- 
^g Isnds of Flathead Indian reservation made subject to sale by 
17 Stat 226, was not available as forest reserve notwithstanding 
presifienfs proclamation therefor. 

101 TJ. S. 773-781. 25 L. 925, LITCHFIELD v. COUNTY OF WEB- 
STER. 

Syl. 6 (IX, 1026). Enjoining collection illegal State tax. 

'^I>proved in Starr v. Chicago, etc., Ry. Co., 110 Fed. 7, enjoining 

Pro&^^ution of suits in name of State to enforce railway rate sched- 

^^^ under statute alleged to violate Federal Constitution; Min- 

'*^^I>oll8, etc., Co. V. M'GilUvray, 104 Fed. 270, holding Federal 

coiii^ has jurisdiction of suit to enjoin State officers from enforcing 

^oongtitutional statute subjecting complainant's property to seizure 

^^ ^allure to pay license. 

^^^ XJ. S. 782-789, 25 L. 1044, YOUNG v. BRADLEY. 

^^I 1 (IX, 1027). Requirements of trust govern. 

^ ^^Xiproved in Eakle v. Ingram, 142 Cal. 16, 75 Pac. 566, holding 
^* ^^^^e dissolving trust proper where all beneficiaries thereunder 
^^^^^ and none under disability. 

^-■^ tJ. S. 789-791. Not cited. 

^ U. S. 791-797, 25 L. 921, WRIGHT v. NAGLB. 

^^1. 2 (IX, 1028). People's franchises alienable by legislative 
^nt 

5W^"^X)proved in Mercantile, etc., Deposit Co. v. Collins Park R. R., 
i^^^ ^ed. 816, 817, 819, holding under Ga. Const, art. 3, § 7, prohlblt- 
^^^^^ legislative authorization of street railway construction without 
^^^ ^J:ilcipal consent ordinance granting franchise has force of State 
^^; dissenting opinion in Freeport Water Co. v. Freeport, 180 
" S. 609, 45 L. 692, 21 Sup. Ct 502, majority holding 111. act April 
^872, empowering city to grant water franchise for thirty yearn, 
empowering grant of right to fix rates for thirty years. 



101 U. 8. 797-S21 Notes on U. S. Reports. 818 

SyL 3 (IX, 102$. Subsequent bridge franchise raising Federal 
question. 

Approved In Steams t. Minnesota ex reL Marr, 179 U. S. 233, 45 
L. 170, 21 Sup. Gt. 77, holding Supreme Court determines for Itself 
regardless of State adjudications the competency of State to contract 
exemption of railway property and to construe such contract; 
American Water-Works, etc., CJo. v. Home Water Co., 116 Fed. 178, 
holding suit to restrain enforcement of ordinance alleged to impair 
prior ordinance granting water contract raises Federal questioa. 

SyL 4 (IX, 1029). Exclusive publfc franchises never presumed. 

Approved in Mercantile, etc.. Deposit (^. v. (Villus Park R. R., 
99 Fed. 814, holding under Ga. Const, art. 3, § 7, prohibiting legis- 
lative authorization of street railway construction without mu- 
nicipal consent, ordinance granting franchise has force of State 
law. 

101 U. S. 797-810. Not cited. 

101 U. S. 810-813, 25 L. 875, PUNGAN v. GBGAN. 

Syl. 1 (IX, 1030). Removal cases taken where left off. 

Approved in Central R. & B. Co. v. Farmers' L. & T. Co., 113 
Fed. 407, holding receiver appointed by State court in suit for 
assets in hands of prior Federal receiver liable to set-off by latter 
of claims for materials furnished State receiver's road; Bmpire 
Min. Co. V. Propeller, etc., Co., 108 Fed. 903, holding defendant 
having removed attachment proceedings begun in State court can- 
not deny Federal court's jurisdiction on ground of privilege of 
suit in own district 

101 U. S. 814-821, 25 L. 1079, STONE v. MISSISSIPPI. 

Syl. 1 (IX, 1031). Charter not within prohibition against im- 
pairment 

Approved i^ Bienville Water Supply Co. v. Mobile, 186 U. S. 219, 
46 L. 1135, 22 Sup. Ct. 823, holding absolute power of Alabama 
legislature to revoke exclusive feature of franchise to water com- 
pany under Ark. Const, § 23, not limited by corporator's interests; 
dissenting opinion in Word v. Southern Mut. Ins. Co., 112 Ga. 593, 
594, 37 S. E. 901, majority holding provision in insurance charter 
restricting Insurance to tliree-fourtlis value of property not con- 
tract violated by making company liable for full value. 

Distinguished In City of Mobile v. Bienville, etc., Co., 130 Ala. 
383, 30 So. 447, holding water company may maintain bill against 
city restraining it from discriminating against company in matter 
of rates. 

Syl. 2 (IX, 1031). Legislature cannot bargain away public health. 

Approved in Lottery Case, 188 U. S. 356, 23 Sup. Ct 327, 47 L. 
501, holding carriage of lottery tickets between States by express 



319 Notes on U. S. Reports. 101 U. S. 822-850 

cdopany Interstate commerce which Congress may prohibit; An- 
dre^^s V. Andrews, 188 U. S. 34, 23 Sup. Gt. 241, 47 L. 370, up- 
holding Massachusetts court's refusal to recognize South Dakota 
diTorce for cause arising in Massachusetts and not there a cause 
for diTorce; Dobbins y. City of Los Angeles, 130 Gal. 18G, 72 Pac. 
972, upholding ordinance malting it unlawful to erect gasworks and 
taalc:8 within certain limits within city; Snouffer v. Cedar Rapids & 
M. City Ry. Co., 118 Iowa, 301, 92 N. W. 84, upholding city ordinance 
ordering street railway tracks removal from middle of street to 
whioli they had been moved pursuant to ordinance six years before; 
State T. Bixman, 162 Mo. 22, 62 S. W. 832, holding Inspection 
cbax-^e on malt liquors established by Mo. act May 4, 1899, not a 
tar on property and was within police power; Higgins v. Talty, 
157 Mo. 289, 57 S. W. 725, holding writ of prohibition will not lie 
Afif^xist excise officer empowered to revoke liquor licenses, not being 
a JO€3icial officer; People v. Color, 173 N. Y. Ill, 65 N. B. 958, up- 
holding N. Y. Laws 1901, chap. 33, abolishing office of chief of 
pollers and depriving Incumbent of pension forthcoming after service 
'or r-€qui8ite time; Ex parte Kameta, 36 Or. 254, 78 Am. St. Rep. 
"^-^ 60 Pac. 396, holding under Or. Laws 1893, p. 820, against 
sailing, Portland council has power to make unlawful sale of 
lott^i^ tickets; Knoxville v. Knoxville W. Co., 107 Tenn. 675, 680, 
^ S- W. 1082, 1085, upholding city ordinance reducing water rates 
ogr^.^^ upon between city and company and expressed in prior 
wdli^ance. 

^ ^.stlnguished in Bdworthy v. Iowa B. & L. Assn., 114 Iowa, 
^» 8G N. W. 316, holding Iowa Acts 27th Gen. Assem., chap. 48. 
rena^^yjug defense of usury on loans did not repeal usury laws and 
^I^^^^l of curative statute left usury laws. 

^^1. 3 (IX, 1032). Police power concerns protection public health. 

^t>proved in Dunn v. Commonwealth, 105 Ky. 837, 88 Am. St. 
^X>- 345, 49 S. W. 813, holding Ky. Stat., § 3490, authorizing cities 
^' fourth class to pass ordinances penalizing prostitutes appearing 
®^ streets within certain hours, without reasonable necossrty; State 
^' X>alton, 22 R. I. 80, 46 Atl. 235. holding unconstitutional R. I. 
**^t>. Laws, chap. 652, making misdemeanor selling or giving cou- 
P®*iB with sale of property entitling purchaser to receive some other 
artiQie. 

1^1 r. S. 822-836. Not cited. 

^^1 r. S. 837-850, 25 L. 1081, HOWARD v. RAILWAY CO. 

Syi. 3 (IX, 1036). Foreclosing prior Hen leaves subsequent lien. 

-Approved in Wheaton v. Dally Telegraph Co., 124 Fed. 62, hold- 
^8 erroneous direction to bank, not party to action by stockholder 
^^ administration of debtor corporation's assets, to pay over de- 



102 U. S. 1-59 Notes on U. S. Reports. 320 

posits before determining set-off rights; American Loan, etc., Co. 
V. Atlanta, etc., Ry., 99 Fed. 318, holding proceedings by senior 
mortgagee to foreclose under Ga. Civ. Code, § 2747, which prevents 
making Junior mortgagee party, do not affect tatter's right to re- 
deem. 



ClI UNITED STATES. 



102 U. S. 1-14, 26 L. 59, MYER v. CAR CO. 

Syl. 1 (IX, 1037). After acquired property mortgage passed 
mortgagor's title. ' 

Approved in Contracting, etc., Co. v. Continental Tr. Co., 108 
Fed. 4, holding locomotives delivered to mortgagor on payment 
of certain amount, latter executing lease warrants calling for 
twelve payments, passed under after acquired property clause of 
mortgage. 

Syl. 3 (IX, 1037). Original statutes construing doubtful revised 
statutes. 

Approved in dissenting opinion in Ogden City v. Weber Co., 26 
Utah, 136, 72 Pac. 436, majority holding nonresident paupers, within 
Rev. Stat. Utah 1898, § 511, delegating to county commissioners 
care of indigent sick and dependent poor of county. 

102 U. S. 14-59, 26 L. 61, RAILROAD CO. v. NATIONAL BANK. 
iSyl. 2 (IX, 1089). Judgment estoppel binds parties and privies. 

Approved in Hamilton v. Power, 99 Fed. 22, holding transfer of 
notes, before maturity, secured by mortgage as collateral pass 
to bona fide purchaser free from equities; Rockville Nat. Bank 
V. Citizens' Gas Light Co., 72 Conn. 581, 45 Atl. 363, holding bonds 
transferred by company to plaintiff to secure past and future dis- 
count of note evidencing debt pass free from unknown equities; 
Thompson v. Village of Mecosta, 127 Mich. 528, 86 N. W. 1047, 
holding plaintiff receiving village bond in payment of debt o-wed 
by previous holder, in thirty-day promissory note, becomes pur- 
chaser for value; Rutland Provision Co. v. Hall, 71 Vt. 210, 44 Atl. 
95, holding creditor accepting from debtor third party's check 
in good faith becomes bona fide holder, and may recover against 
accommodation drawer; Payne v. Zell, 98 Va. 297, 36 S. E. 880, 
holding plaintiff, receiving note from payee-debtor by indorsement 
before maturity, whether as part payment or security for Indebt- 
edness, is bona fide holder. 

SyL 3 (IX, 1039). Transferring nonmature note for antecedent 
debt 
Approved in Hawke y. Cooper, 108 Fed. 925, holding decree soi- 



Notes c 



D. 



KeportB. 102 U. ! 



59-Oii 



KJjiliLf Ta]ldlt7 of defendant's title binds one not named as party. 
bat nbo would Uave sbareci in decree had plaintiff won. 
Syl 5 (IX, 1041), Federal courta independent In commercial law. 
Approved In Glll>ert v. American Surety Co.. 121 Fed. GCG, tiold- 
lag Federal court not bound by Illinois decision in replevin suit 
M to effect on parties' rights of invalidity of contract; Independent 
School Dist V. Rew, 111 Fed. 11. lioldlng municipality authorised 
to Issue bonds estopped aa ngainat bona fide boldera to deny truth 
of recitals profnasiDg compliance with law; Manshlp v. New South 
Bids., etc., Assn., 110 Fed. S58, holding where by-laws of loan 
association provide for payment of dues at home office, and con- 
tracts contain similar provisions, contracts are solvable in home 
State; Bank of Saginaw v. TlUe & Trust Co.. 105 Fed. 49:!, 493. 
holding certlflcate of deposit of Pennsylvania trust company ne- 
gotiable Instrument, though State courts contra; Northern Nat. 
Bank v. Hoopea, 98 Fed. &38, holding contract created by Indorse- 
ment of negotiable note cannot be contradicted, added to, or varied 
by coDtemporaneouB parol agreement; Limerick Nat, Bank v. How- 
ard, 71 N. H, 19, 93 Am. St. Rep. 495. 51 Atl. G44. holding In 
New Hampshire court that Vermont law governs In suit on not« 
eiecuted and payable In Vermont and issue of bona fide for Jury; 
Mercantile Bank of Memphis v. Boggs. 48 W. Va. 291, 37 S. E. 
58& holding valid pre-existing debt prima tacle valuable conaidera- 
■'on tor transfer of nonmature note in hands of bona fide bolder, 
Oioagb held as collateral: Town of Weston v. Kalston. 48 W. Va. 
'^, 36 S. K. 454, canceling deeds and perpetually enjoining further 
"t'Satlon of public right to land declared by Circuit Court of Ap- 
Peate aa part of highway. 
8yL 10 (IX, 1043). Laches equivalent to payment of collateral. 
■Approved In Levy & Cohn Mule Co. v. KauITmaD. 114 Fed. 173, 
boldiQg cancellation of pre~exlstlng debt as valid consideration for 
'''U Or note as cash payment; Porter v. Andrus, 10 N. Dak. MS, 
"'**• Ss N. W. 570, holding note signed and delivered to agent of 
payee to become binding upon securing other names thereon blnd- 
'°E In hands of bona fide holder. 

"^ XI, S. 59-63. Not died. 

^^ TJ. S. M-ea. 26 L. 46. UNITED STATES t. PECK, 
^rl. 1 (IX, 1044). AdmltUng parol showing surrounding clr- 

'■oaatancea. 
■*PDroTed In Brlttlngham, etc., Co. v. Manson, 108 Wis. 225, S4 
■ ^^. 184, holding erroneous, sustaining demurrer to complaint 

'"f breach of contract calling for all merchantable timber on cer- 

'"'> land, on ground that contract terminable at will. 
Vol 11 — 21 




{ 



102 U. S. G6-79 Notes on U. S. Reports. 

Syl. 2 (IX, 1044). Conduct, preventing other's performance, 
cuses nonperformance. 

Approved in American Surety Ck). v. United States, 123 1 
286, holding defendant cannot refuse payment for mining cl 
because he obtained patent overlapping same ground, plali 
having complied with contract; Kelly v. Fahmey, 123 Fed. 
holding in action by plaintiff, for failure to deliver stock, p: 
that plaintiff procured creditor to attach and sell stock. 

102 U, S. 66-68, 26 L. 52, CASEY v. ADAMS. 

(IX, 1044). Miscellaneous. 

Approved In Miller v. Rickey, 127 Fed. 677, holding Nevada e 
had jurisdiction to enjoin defendant from diverting waters in ( 
fornia of stream flowing into Nevada, defendant being in Nevad 

102 U. S. 68-79, 26 L. 79, KIRK v. HAMILTON. 

Syl. 1 (IX, 1045). Equitable estoppel defense In ejectment. 

Approved in National Nickel Co. v. Nevada Nickel Syndic 
112 Fed. 46, holding defendant served with notice of decree 
foreclosure sale, and motion to confirm, making no objection, 
topped to deny purchaser's title; Sullivan Timber Co. v. Citi 
Mobile, 110 Fed. 197, 198, holding city giving riparian owner 
plied license to build wharves into navigable water over c 
land, and taxing such wharves, equitably estopped to dlspoe 
licensee; Appleton Mfg. Co. v. Fox River Paper Co., Ill Wis. 
87 N. W. 455, holding, under Wis. Rev. Stat 1898. S S 
allowing equitable claims set up by counterclaim in ejectment, 
toppel not available, as counterclaim being legal defense. 

Syl. 2 (IX, 1046). Estoppel — Forbearing to question sale. 

Approved in Sullivan Timber Co. v. City of Mobile, 124 I 
649, holding city's failure to object to wharves built pursnanl 
license of river commission, and regulation of such wharves, 
topped it to deny right to occupy; Berwind- White Coal Min. 
V. Martin, 124 Fed. 319, holding defendant abandoning mine lefl 
to plaintiff for ten years on ten-cent royalty on 75,000 tons < 
to be mined annually estopped to deny liability; Given v. Tir 
Republican Pr. Co., 114 Fed. 95, holding vendor of stock indui 
purchaser to buy stock In belief that corporation not indebte< 
him estopped to assert such ind-ebtedness thereafter; Sulli 
Timber Co. v. City of Mobile, 110 Fed. 98, holding city implit 
licensing building wharves over city's land to navigable water, 
taxing structures, equitably estopped to dispossess licensee; Br 
V, Pinney, 3 Ariz. 421, 31 Pac. 549, holding assignee of wide 
equity of redemption estoppeds after three years, lo deny titl< 
assignee of mortgagee's certificate in good faith, mortgagee b< 
also administrator; Dalton v. Rentaria, 2 Ariz. 280, 15 Pac 
holding one standing by sixteen years, allowing another to < 



323 Notes on U. S. Reports. 102 U. 8. 7^107 

fields and irrigate them In belief of Tested right, estopped to deny 
such right; Roland Park t. Hull, 92 Md. 310, 48 Atl. 367, refus- 
ing injunction to restrain trespass for maintaining garbage field 
-^wliere plaintifT sold lot, with knowledge of use, and is estopped 
at law to claim damages; Darlington v. Missouri Pac. Ry., 99 Mo. 
.A.pp. 12, 72 S. W. 125, holding assignees of widow's right to re- 
^e^m estopped to eject purchaser of land from mortgagee, also 
serring as administrator, after three years' bona fide holding; 
Serlat t. Londrigan, 63 N. J. Eq. 39, 50 Atl. 916, holding where 
plaintiff purchased from judgment creditor of defendant and erected 
valuable improyements, paid taxes, with defendant's knowledge, 
latter estopped to question plaintiffs title; Murray Hill, etc., Co. 
▼. Havenor, 24 Utah, 80, 66 Prfc. 765, holding, under Utah Comp. 
Xawb 1888, f 3916, requiring realty transfers in writing, mining 
corporation to whom locators surrendered claims, improving such 
property, take by estoppel; Murphy v. Ganey, 23 Utah, 641, 66 Pac. 
Ids, holding wife estopped to claim land conveyed to husband 
''^thout questioning wrongful recording of deed for four years, 
^^d on divorce accepting decree of title in him; dissenting opinion 
^ Modem Woodmen of America v. Union Nat Bank of Omaha, 
108 Fed. 763, majority holding defendant not estopped to deny 
Ability on fictitious certificate, given plaintiff's banker, on under- 
standing that plaintiffs ofiSiceA* knew it was for accommodation. 

^^ U. S. 79-95. Not cited. 

« 

^^ XJ. 8. 96-107, 26 L. 54, PARKS v. BOOTH. 

®yL 2 (IX, 1048). Patent containing new device new combination. 

-Approved in McMlchael, etc., Mfg. Co. v. Ruth, 128 Fed. 708, 
'^^^ding patentable and patent infringed combination for automatic 

^knitting machine, though expert with patent before him miglit 
^^e built up the structure from known elements; Milwaukee Carv, 
^- V. Brunswick, etc., Co., 126 Fed. 183, holding Smith & Past pat- 
^^ for carving machine covering old elements not infringed by Loch- 
**^^ patent improving prior combinations; Url v. Hirsch, 123 Fed. 

•1» holding where bill for infringement of trade-mark alleging use 
^y" complainant of name, answer alleging use by defendant long 
^*^or responsive; Regent Mfg. Co. v. Penn. Electrical & Mfg. Co., 
*^ Ped. 83, holding patentable combination of unframed mirror 
^^th beveled edges, spring-armed supporting frame, and grooved 
^p8 to enable adjustment of mirror In angular position; Stephenson 

▼. Allison, 123 Ala. 448, 26 So. 292, holding grant of letters-patent 

on chum prima facie evidence of patentability of article. 

Syl. 5 (IX, 1048). Patentee entitled only to taxable costs. 

Approved in Plaget Novelty Co. v. Headley, 123 Fed. 898, holding 
la estimating profits of defendant from manufacturing infringing 
«rt/cle, defendant not allowed to deduct insurance or legal services; 



102 U. S. 107-118 Notes on U. S. Reports. 324 

National, etc, Paper Co. v. Dayton, etc., Co., 97 Fed. 332, holding 
interest not recoTerable on profits allowed in equity for infringe- 
ment of patent prior to master's liquidation of damages. 

102 U. S. 107, 108, 26 L. 91, BROOKS v. RAILROAD CO. 
SyL 1 (IX, 1048). Rehearing — Petition must file within term. 

Approved in Illinois ex rel. Hunt v. Illinois C. R. R. Co., 184' U. 
S. 92, 46 L. 447, 22 Sup. Ct 306, refusing to disturb findings of two 
lower courts that piers and docl^s built in Lal^e Michigan by rail- 
road did not extend beyond point of practicable nayigabillty; 
Halsted v. Forest Hill Co., 109 Fed. 822, refusing to entertain bill 
of review filed after expiration of time for appeal; Empire Min. 
Co. V. Propeller, etc., Co., 108 Fed. 904, holding where Federal court 
remands cause to State court which reassumes Jurisdiction, Federal 
court cannot strike cause from State court docket though within 
same term; City of Manning v. German Ins. Co., 107 Fed. 55, revers- 
ing order of Circuit Court vacating Judgment after expiration of term 
in which it was rendered; M'Oregor v. Vermont, etc., Co., 104 Fed. 
710, sustaining denial of motion, made after expiration of term, 
to vacate decree pro confesso in foreclosure suit entered on failure 
to plead; In re SeydeFs Estate, 14 S. Dak. 118, 84 N. W. 39S, 
holding Circuit Court remanding cause to County Court cannot 
afterward grant rehearing In executor's suit. 

Distinguished in Burget v. Robinson, 123 Fed. 264, holding rule 
29 of. Circuit Court Appeals requiring petition for rehearing filed 
within calendar month from Judgment is in leave granted la term 
may be waived. 

102 U. S. 108-112, 26 L. 92, GIDDINGS v. INSURANCE CO. 

Syl. 1 (IX, 1049). Payment premium made condition of policy. 

Approved in Miller v. Northwestern, etc., Ins. Co., Ill Fed. 469. 
holding company not bound where agent unauthorizedly told insured 
policy would run from payment of premium where company rejected 
application, returning premium, insured having died; Travis v. 
Nederland, etc., Ins. Co., 104 Fed. 488, holding insurance company 
not bound by policy where before acceptance of original application 
insured modified It with condition that company not have two 
medical examiners; Westerfeld v. New York Life Ins. Co., 129 
Cal. 77, 61 Pac. 670, holding company not bound where premium 
not paid, though State manager unauthorizedly promised to allow 
surrender value in four years paying first premium therefrom. 

102 U. S. 112-118, 26 L. 93, PEARCE v. MULFORD. 
Syl. 2 (IX, 1049). Patent must involve exercise inventive faculties.^ 
Approved in Rodiger v. Davids Mfg. Co., 126 Fed. 965, holdlni 

unpatentable device placing dish of paste and dish of water undei 



325 Notes on U. S. Reports. 102 U. S. 118-122 

same coyer to moisten paste by evaporation of water; L. E. Water- 
man Co. V. Forsytli, 121 Fed. 106, holding application to fountain 
pens of improvement to form noncapillary Joint between cap and 
oDzzle though new application, not patentable. 

102 U. S. U8-119, 26 L. 95, SCHOONMAKER v. GILMORB. 

Syh 1 (IX, 1050).' Admiralty Jurisdiction over Ohio collisions 
oonexchisive. 

Approved in E:napp, Stout & Go. v. McGaffrey, 177 U. S. 647, 44 L. 
9% 20 Sup. Gt 828, holding enforcement of lien for towage of lum- 
ber raft seeking decree against individual defendants, suit in per- 
sonam cognizable in State court under Rev. Stat, f 563; Duffy v. 
Gleason, 26 Ind. App. 182, 58 N. E. 730, holding limitation of liability 
tTallAble in admiralty not pleadable In action under Rev. Stat., 
i 663, against defendants for personal injuries received in collision. 

^h, 2 (IX, 1050). Gommon-law remedy for sea collisions. 

Approved in Gleason v. Duffy, 116 Fed. 301, holding ship- 
owner not estopped by Judgment In personam for damages in 
collision to proceed in admhralty under Rev. Stat, f 4283, to limit 
liability. 

1<» TJ- S. 120, 26 L. 58, RAILWAY CO. v. HEGK. 

Syl. 1 (IX, 1050). Refusing new trial below not reviewable. 

Approved in South Penn Oil Co. v. Latshaw, 111 Fed. 598, refus- 
^^ to review lower court*s refusal to set aside verdict In action of 
^'^Bpass for boring oil wells as being against law and evidence; 
S^ Printing, etc., Go. v. Schenck, 98 Fed. 930, refusing to review 
toi^l Qf motion for new trial based on ground of excessive damages 
^ Itbel suit 

^^ tJ, S. 121, 122, 2B L. 95. HAYES v. FISCHER. 
Syi. 2 ilX, 1052). Contempt proceedings not reviewable. 

Approved in Enoch Morgan's Sons Co. v. Gibson, 122 Fed. 422, 
folding order discharging rule to bhow cause for contempt in vlo- 
^ting injunction against trade-mark infringement reviewable on 
appeal after hnal decree; In re Paquet, 114 Fed. 440, denying writ 
of prohibition to stay contempt proceedings in Circuit Court where 
appellate Jurisdiction not Invoked by appeal or writ of error. 

^distinguished in In re Heinze, 127 Fed. 97, 98, holding under 
^ Stat 826, under review power in criminal cases, Circuit Court 
-Appeals may review on error Judgment convicting defendant of eon- 
^nipt in equity suit; In re Nevitt, 117 Fed. 453, holding president 
^ no t>ower to pardon Judges for contempt in refusing to comply 
▼ith mandamus of Circuit Court ordering tax levy. 



102 U. S. 123-134 Notes on U. S. Reports. 826 

102 U. S. 123-128, 26 L. 103, TIERNAN T. RINKBR. 

SyL 1 (IX, 1053). Act favoring sellers, natiye liquors, uncon- 
stitutional. 

Approved in State v. Santer, 111 Iowa, 10 82 N. W. 448, holding 
Iowa Code S 2508, forbidding use of petroleum for illumination whlcb 
emitted combustible vapor under 150 degrees Fahr. not invalidated 
by exception of Welsbach lamp products; dissenting opinion In State 
▼. Haun, 61 Kan. 176, 59 Pac. 350, majority holding unconstitutional 
Kan. Laws 1897, chap. 145, requiring payment of wages by cor- 
porations employing more than ten men in lawful money; Scott v. 
Flowers, 61 Nebr. 624, 85 N. W. 858, upholding Nebr. Comp. Laws 
1899, chap. 75, art. 1, § 5, as applied to commitment to industrial 
school of children under sixteen; Stevens v. State, 61 Ohio St 607, 86 
N. B. 479, holding 85 Ohio Laws, p. 55, restricting sale of wine to 
that manufactured from pure Juice of grape cultivated in that State, 
does not Invalidate whole local option law. 

Distinguished in State v. Montgomery, 94 Me. 199, 47 AtL 166, 
holding unconstitutional Me. Laws 1889, amended by Laws 1893» 
chaps. 282, 306, for granting licenses to peddlers who are citizens of 
United States. 

Syl. 2 (IX, 1053). Act exempting native liquors only, uncon- 
stitutional. 

Approved in Commonwealth v. Petranich, 183 Mass. 219, 66 N. 
E. 808, holding unconstitutional Mass. Rev. Laws, chap. 100, S 1, 
prohibiting sale without license of intoxicating liquors except sales 
by maimers of native wine or cider; State v. Zophy, 14 S. Dak. 
125, 84 N. W. 393, 86 Am. St. Rep. 745, holding unconstitutional 
8. Dale. Sess. Laws 1897, chap. 72, Imposing annual tax on non- 
resident wholesale liquor dealers while releasing home dealen on 
paying smaller manufacturer's license. 

Distinguished in State v. Bensch, 170 Mo. 117, 70 S. W. 720, hold- 
ing under Wilson law, August 8, 1890, subjecting intoxicating 
liquors to operation of local police regulations, precludes question- 
ing Mo. act J901, as interstate commerce interference. 

102 U. S. 128-132, 26 L. 104, BALL v. L ANGLES. 

Syl. 1 (IX, 1054). Commissioner's reissue for different Invention 
Invalid. 

Approved In Crown Cork, etc., Co. v. Aluminum, etc., Co., 108 
Fed. 853, upholding Painter reissue for patent bottle stopper con- 
taining a new claim but one within the original invention. 

102 U. S. 132-134, 26 L. 44, FRENCH v. WADE. 
Syl. 1 (IX, 1055). Confiscation purchasers get life interest only,,^ 
Approved in Heirs of Ledoux v. Lavedan, 52 La. Ann. 323, 328,.. < 

27 Sa 201, 203, holding creditors of pardoned confiscatee acqulesclni^ 



327 Notes on U. S. Reports. 102 U. S. 135-148 

la long possession of heirs cannot disturb title claimed through 
heirs. 

102 U. S. 135-144, 26 L. 96, RAILROAD CO. v. MISSISSIPPI. 

SyL 2 (IX, 1056). Action based on bridge statute removable. 

ApproTed In K. A. Ghatfield Co. t. City of New Hayen, 110 Fed. 
792, holding suit by individual to enjoin maintenance of bridge 
<acro88 navigable river, declared unreasonable by secretary of war 
under 30 Stat 1153, raises Federal question. 

SyL 3 (IX, 1057). Suits involving construction of congressional 



J^pproved in Patton v. Brady, 184 U. S. 611, 46 L. 716, 22 Sup. 

494, upholding Federal Jurisdiction of suit against revenue 

^^oUector to recover taxes paid under protest under levy under act 

13, 1898, alleged to be unconstitutional; Ward v. Congress 

Co., 99 Fed. 603, holding motion to restrain one not party to 

il'fc from violating decree against erection of buildings is suit re- 

**^0'vable to Federal courts. 

4 (IX, 1058). Suits growing out of Federal legislation. 

pproved In Louisville Trust Co. v. Stone, 107 Fed. 300, holding 

eral court properly assuming jurisdiction of suit against dls- 

'^^^^xxilnating assessments may inquire into legality of State tax, 

»xigh cognizable in State courts; State v. Frost, 113 Wis. 642, 656, 

:^. W. 918, 923, holding information in equity in behalf of State 

enjoin receiver from destroying railroad, suit in civil nature 

lin Acts 1888, Federally cognizable. 

.'5 (IX, 1058). Deciding other than Federal question involved. 

.pproved in Reavis v. Reavis, 98 Fed. 151, holding bill against 
I^cago drainage district to enjoin reduction of water level In canal 
Ich State was under duty to maintain navigable raised Federal 
istion. 

6 (IX, 1058). Contest below no bar to removal. 

Lpproved in Texas, etc., Ry. Co. v. Davis, 93 Tex. 388. 55 S. W. 
s holding State court does not regain jurisdiction of corpora- 
suit by contest in State court after refusal of removal petition. 

X02 U. S. 145-148, 26 L. 53, LANGFORD v. MONTEITH. 

Sjl 1 (IX, 1059). Treaties excluding State control reservation 
laxkds. 

-Approved In King v. M' Andrews, 104 Fed. 434, holding lands 
within Great bioux reservation not being excluded by act organiz- 
*^fif territory, nor Indian treaty, 15 Stat. 635, became part of Dakota 
^ej^ritory; Territory v. Delinquent Tax List, 3 Ariz. 306, 20 Pac. 
^^» holding taxable by Territory railroad across Indian reserva- 



102 U. S. 148-101 Notes on U. S. Renorta. 828 

tton where no treat]' excluded reaerTBtlon from territorial Jnrlit- 
diction. 

DlstingnlBhed fn King r, McAndrewa, 111 Fed, 870, holding 
Dak, Terr, act March 7, 1885, Including portion ot Indian reser- 
vation In city or Chamberlain, did not withdraw such land from 
taomeetead or pre-emption. 
102 U. S. 148-161, 23 L. 106. GRAHAM v. RAILROAD CO. 

Syl. 1 (IX, 1060). Subeequent creditors remedlleaa against sol- 
Tent transfer. 

Approved In DIckermnn v. Northern Trust Co.. 176 U. S. 202, 44 
L. 434, 20 Sup. Ct. 319. holding bonus In stock given to bond pur- 
chasers in good Faith to Induce purchase does not entitle dissenting 
holders to deduct par value from bonds; New Hampshire Sav. Bank 
y, Richey, 121 Fed. 960, holding mortgagee has no Uen on dividend* 
paid by corporation in good Faith, while solvent, out of Income of 
mortgaged property: Wilson v. Stevens, 120 Ala. 638, 29 So. 679. 
holding one t>orrowlng from administrator money of Intestate's 
estate IF done In good fitith. though unauthorized, not cbargeable 
as trustee; Ready v. Smith, 170 Mo. 175, 70 S. W. 487, boldlng 
creditors oF corporation not entitled to Impeach purchase nnd aale 
by director of property of which corporation was equitable mort' 
gagee; filarvln v. Anderson. Ill Wis. 300. 301, 87 N. W. 227, 228. 
holding trustee in bankruptcy cannot Impeach deed given by cor- 
poration bona Ode, while solvent. In regular course of business. 

Syl. 2 (IX, 1060), Subsequent creditors barred by debtor's ac- 
quiescence. 

Approved In Merchants' Bank v. Thomas, 121 Fed. 310, holding 
tmstee of creditors subsequent to agreement of bankrupt partner- 
ship to pay Individual debt of partner cannot object to sucta transac- 
tion on ground of fraud; Adams-Booth Co. v. Held, 112 Fed. 114, hold- 
ing failure of mortgagor to appear and contest foreclosure suit waives 
defense oF validity oF mortgage, precluding raising It In subsequent 
ejectment suit; Hamilton v. Menominee Falls Quarry Co., 106 Wis. 
360, 81 N, W. 879, holding assignee oF Insolvent corporation cannot 
after three years' delay question transfer of quarry property while 
corporation solvent, but for Inadequate consideration. 

Distinguished In Mix t. Miller, 26 Colo. 207, 57 Pac. lOSS, hold- 
ing subsequent creditors of Insolvent corporation may sue directors 
for wrongful diversion of assets; Chrlsmnn, etc., Banking Co. v. 
Independence Mfg. Co., 168 Mo. 641. 68 S. W. 1027, holding where 
corporation took up subscriber'a stock, part of which was unpaid, 
and made aame treasury stock, subscriber nevertheless liable to 
subsequent creditors. 

Syl. 5 (IS, 1062). Insolvent corporation's property a " trust fund." 

Approved In United States Shipbuilding Co. v. Conklln, 1^6 Fed. 
135, holding equity has power Independent of statute to appoint 






rs» Kotes on U. S. Rpporta. 102 U. S. 1C1-1C7 

receiver for InBolvent corporatloQ where bondbolder's bill sUefea 
gross mis manage meat by directors; Bishop v. Leonard, 123 Fed. 
DS4. holding beira-at-law csnuot recover property or proceeds thereof 
given as executed gtCt by one mentally [ncompetent and under 
nndne Influence; Great Western, etc., Co. y. Harris. Ill Fed. 42. 
boldlng bondholders of corporation may recover proceeds ot new 
Issue of stock wrongfully diverted by being paid to stockholders; 
UolTat T. Smith, 101 Fed. T74. holding sole stockholder obtaining 
transfer of corporatloD assets In consideration of cancellation of 
stock cannot enjoin Judgment creditor from attaching sucb assets: 
Smith V. Pacific Bank. 137 Cal. 368. 370. 70 Pac. 186. holding hank's 
rifcbt of action to set aside bonds' trnnsfer between directors and 
president not assignable; Kahle v. Oil Co., 51 W. Va. 317. 41 
S. E. 235, holding creditor whose labor Hen Is disallowed by decree 
!q creditor's suit against insolvent corporation may appeal im- 
mediately therefrom; Hawkins v, Donnerberg, 40 Or. 107, 66 Pac. 
895, holding creditors of Insolvent luvestment company cannot en- 
force stockbolder's subscription liability, corporation's right to do so 
'•ayixig become barred by statute. 

'*lstlngulshed In Lawrence v. Greenup, 97 Fed. 909. holding re- 
ceiv-^j of Datioaal bank cannot recover from stockholder sum re- 
<^I^^J on partial distribution of capital made In good faith whUe 
bioMx^ still solvent, 
't^^e, 1060). Miscellaneous. 

■*-K:»proved In Bush, etc., Mallett Co. t. Helblng, 134 Cal. 678, 66 
"^<^~ Bfl7, holding deed executed by husband to wife wlthont con- 
''°^*^fttIon and unrecorded set aside as fraud on creditor who fur- 
"''*=*■ ^d building to repair house. 
^•"^ TJ. S. 161. 162. Not cited. 

^^ TJ. H. 163-167. 26 L. HI. POTTER t. NATIONAL BANK. 
^^^I. 2 (IX. 1064). State decisions govern competency of witnesses. 
^-:^proved in Parker v. Moore, 111 Fed. 473, holding under S. C. 
^'^-- Stat, 18!)3. g 1859. broker advancing margins for principal 
'" Xirotect purchase of cotton for future delivery cannot recover 
"'*^re principal intended cash purchase, 
^S'l. 3 (IX, 1004), Party witnesses competent In civil cases, 
■^^Xproved in United States v. Lee Huen, 118 Fed. 466. admitting 
'^^tlmony of Chinese defendants in own behalf In deportation 
ca^^^. gtavens v. Northern Pac. Ry., 97 Fed. 262, holding under 2 
Hili-g Code Wash., $ 1640. prohibiting party to record from re- 
peating statement made by deceased, conductor may so testify In 
ftctlca against railway. 




102 U. S. 167-207 Notes on U. S. Reports. 330 

102 U. S. 167-176, 26 L. 126, MINING CO. T. CONSOLIDATED 
MINING CO. 
Syl. 2 (IX, 1065). State taking indemnity school land« 

Approved in Olive Land, etc., Co. v. Olmstead, 103 Fed, 576, 
holding location of oil placer mining claim on which no discovery 
of oil made vests no title in locator against United States or one 
getting title before discovery. 

102 U. S. 177-186. Not cited. 

102 U. S. 187-196, 26 L. 99, COUNTY OF GREENE v. DANIEL. 

Syl. 1 (IX, 1067). Bonds not vitiated by immaterial irregularities. 

Approved in Carpenter v. Greene County, 130 Ala. 633, 29 So. 
190, holding Ala. Acts 1869-70, p. 305, ratifying election for bond 
subscription to stocl^ of railroad, cured any defect in election or 
issue. 

102 U. S. 197-200. Not cited. 

102 U. S. 200-203, 26 L. 145, THE CLARA. 

Syl. 2 (IX, 1068). Vessel without watch liable for collision. 

Approved in The John H. Starin, 122 Fed. 238, holding schooner 
anchoring at night in center of channel 800 feet wide, in harbor 
path, solely to blame for collision where no sufficient light shown. 

102 U. S. 203-207, 26 L. 132, LOUISIANA v. NEW ORLEANS. 

Syl. 1 (IX, 1069). Obligation of contract, means of enforcing. 

Approved in Wilder v. Campbell, 4 Idaho, 699, 43 Pac. 678, 
lidding amendment to section 4492, Idaho iSess. Laws 1895, p. 34, 
increasing redemptory period from six months to one year, inap- 
plicable to mortgages executed prior thereto; Ireland v. Mackin- 
tosh, 22 Utah, 305, 61 Pac. 903, holding note barred on expiration 
of existing four-year statute, though before expiration thereof 
statute Utah Sess. Laws 1897, changed period to six years; dis- 
senting opinion in South Daliota v. North Carolina, 192 U. 8. 342, 
24 Sup. Ct 286, majority holding Federal jurisdiction over con- 
troversies between States extends to suit by South Dakota, as 
donee of bonds issued by North Carolina, secured by railway 
mortgage. 

Syl. 2 (IX, 1069). Legislation retarding enforcement impain 
obligation. 

Approved in City of Cleveland v. United States, 111 Fed. 343, 
refusing mandamus to enforce tax levy, under Tenn. Acts 1803, 
chap. 184, S 23, to pay water and light bill, such being ordinary 
municipal expense; Richardson v. United States Mort, etc., Ck>., 
194 111. 266, 62 N. E. 608, holding 111. Laws 1897, p. 175, requiring 
maintenance of office and filing articles as precedent to suit, did 
not prevent foreign corporation to foreclose mortgage previously 
executed; dissenting opinion in Oshkosh Water-Works Co. y. CUtj 




SSX Notes on U. S. Reports. 102 U. S. 20&-247 

of Oshkosh, 109 Wis. 227, 85 N. W. 383, majority upholding amend- 
^nt of city charter prohibiting suits on claims until disallowance 
same, and requiring service on clerk instead of mayor as formerly. 

«SSyL 3 (IX, 1070). Requiring register of Judgment no impairment. 

^Approved in United States v. New Orleans, 117 Fed. 612, holding, 

der La. Laws 1870, act 5, requiring filing of Judgments with city 

:xnptrolIer, relator not entitled to mandamus to compel city officers 

recognize unrecorded Judgment; Oshkosh Water-Works Co. v. 

of Oshkosh, 109 Wis. 219, 85 N. W. 380, upholding amend- 

ent to city charter requiring service on clerk instead of on mayor 

suits on claims against city. 

<IX, 1069). Miscellaneous. 

^Approved in In re Nevitt, 117 Fed. 450, holding habeas corpus 
proper to review rulings of court imprisoning Judges for refusing 
comply with mandamus ordering tax levy. 

U. S. 208-214, 26 L. 147, SOLOMON v. ARTHUR. 

fiyL 1 (IX, 1071). Applying provisions of tariff acts. 

^Approved in Coles v. Collector, etc., 100 Fed. 445, holding anthra- 
fc:e coal, containing below '* 92 per cent fixed carbon," dutiable 
^der paragraph 415, Acts 1897, and not entitled to free entry 
unprovided for; Stem v. United States, 98 Fed. 418, holding 
I^^^^ashes, velvets, velveteens, corduroys, and pile fabric, cut or un- 
<="v:2't, composed of cotton dutiable, under paragraph 315, and flaxen 
^^^^"^cles, under paragraph 342, Acts 1897. 

^<^ U. S. 214-222. Not cited. 

^^>2 XJ. S. 222-230, 26 L. 149, GOODYEAR DENTAL, ETC., CO. v. 
DAVIS. 

CI^ 1072). Miscellaneous. 

distinguished in National Meter Co. v. Neptune Meter Co., 122 
^<i. 85, holding claims for patent to prevent disk of mutating 
^^^ter meter from Jamming too general in specifying substance 
^^ Case as of larger coefilcient of abrasion than ball. 

^^^ XJ. S. 230-235. Not cited. 

^^^ XJ. S. 235-247, 26 L. 160, HERTFORD v. DAVIS. 

^^1. 2 (IX, 1073). Intention governs construction of contracts. 

-Approved In Heine, etc., Co. v. Francis Bros., etc., 105 Fed. 417, 

^^^^ing guaranty contained in specifications submitted by bidder 

^^^t^ad of those cohtained In specifications of general contractors, 

Z^^ for bids for boilers governed parties; Ralney v. Hogsett, 100 

^^ 209, holding contracts for sale of coal lands, vendee to be 

^^lo^^ed credit for shortage claimed within certain time afterward 



^^ -^ndedf included shortage claimed within extended time; Adams 
^^^oiiine Co. T. Newman, 107 La. 710, 32 So. 41, holding vendor of 



102 U. 8. 248-268 Notes on U. S. Reports. 8S2 

machinery attached to realty by vendee and seized and sold without 
opposition, under pre-existing mortgage, cannot recoT^ same; Chi- 
cago, etc., R. R. Co. y. Chicago, etc., R. R. Co., 113 Wis. 166, 87 N. W. 
1086, holding contract between inters^ting railroads to share In 
hire of flagmen or switchmen did not include erection by defendant 
of interlocking system, nor sharing expense; Rainey v. Hogsett, 100 
Fed. 210, 211, majority holding contracts for sale of coal lands, 
Tendee allowed for shortage claimed within certain time afterward 
extended, included all shortage claimed in extended time. See 
notes, 94 Am. St Rep. 213, 234. 

(Syl. 8 (IX, 1074). Loan of cars construed a mortgage. 

Approved in Contracting, etc., Co. t. Continental Trust Co., 106 
Fed. 3, holding delivery of locomotives on payment of agreed sum 
and execution of twelve "lease warrants*' for annual payment of 
" rentals," title remaining in " lessor,'* mortgage. 

102 U. S. 248-25a Not cited. 

102 U. S. 256-263, 26 L. IQl, PEOPLES' BANK v. CALHOUN. 

(IX, 1076). Miscellaneous. 

Approved in Hitz v. Jenks, 185 U. S. 169, 46 L. 856, 22 6up. Ct 
603, holding no authority conferred upon trustee in private, trustee 
to sell property in possession as receiver, where court not asked to 
give authority; Pendleton v. Lutz, 78 Miss. 327, 29 So. 164, holding 
under Act March 3, 1887, f 3, where amount less than |2,000 and 
State court holding property attached before receiver's appoint- 
ment, latter cannot remove suit 

102 U. S. 263-268, 26 L. 164, ROGEBiS v. PALMER. 

Syl. 1 (IX, 1077). Attorney's knowledge imputable to client. 

Approved in Barstow v. Beckett, 122 Fed. 147, holding Jud^^moit 
creditor and attorney, latter procuring sale of debtor's property 
and purchasing for himself and client, both chargeable with notice; 
Babbitt V. Kelley, 96 Mo. App. 534, 70 S. W. 386, holding agent's 
knowledge of debtor's insolvency before recording of chatty mort- 
gage affects his principal, creditor of mortgagor; Pochin v. Knoebel, 
63 Nebr. 774, 89 N. W. 267, holding purchaser of note making 
original payee agent to collect cannot after collection and default of 
agent repudiate agency and recover again from maker. 

Syl. 2 (IX, 1078). Father's Judgment against insolvent son 
fraudulent 

Approved in Pond v. New York National Exch. Bank, 124 Fed. 
993, holding, und<er 32 Stat. 801, action by bankrupt's trustee to 
recover preferential payment made by bankrupt proper in equity 
though remedy at law adequate; Cox v. Wall, 99 Fed. 549, holding 
equity proper forum for trustees bill to set aside sale of stock of 
goods by bankrupt as fraudulent though remedy exist at law. 



^^ Notes on U. S. Reports. 102 U. S, 269-^00 

^^ XT. S. 26^278. Not cited. 

^^ XT. & 278-283, 26 L. 138, BUCHANAN v. LITCHFIELD. 

Syl. 1 (IX, 1078). Constitutional Indebtedness means on taxable 
property. 

Approved in State t. City of Helena, 24 Mont 531, 63 Pac. 103, 
holding company cannot recover for water furnished the city In 
excess of constitutional limit under ordinance appropriating money 
'or that purpose. 

8yL 6 (IX, 1080). City bound by bond recitals. 

-Approved In Walte v. Santa Cruz, 184 U. S. 318, 46 L. 564, 22 
SiBp. Ct. 333, holding recitals in refunding bonds which were au- 
thorized to be issued estop city to deny validity of indebtedness 
for- which issued; Wesson v. Town of Mt Vernon, 98 Fed. 809, 
iioldlng township authorized to issue bonds to refund legal indebted- 
^^^^ cannot deny recitals that statute has been complied with; 
^o«rcl of Comrs. v. SutllfT, 97 Fed. 276, holding where bonds were 
^s^^ed purporting to comply with ColoJ Laws 1877, but clerk kept 
oo book authorized thereby, holder could rely on recitals; County of 
^^isL T. Bullen Bridge Co., 5 Idaho, 92, 47 Pac. 824, holding action 
^1X1 He to cancel warrants drawn upon county bridge fund by 
^^^^^^Knty commissioners without authority and against Constitution; 
8t:«.te V. Wabash Ry. Co., 169 Mo. 575, 70 S. W. 135, holding county 
^^-x^xiot, under section 9274, Mo. Rev. Stat. 1899, collect tax in excess 
^ ^orty cents, constitutional limit, to meet valid outstanding war- 
'^J^ts; National Life Ins. Co., etc. v. Mead, 13 8. Dak. 45, 79 Am. 
®^ Hep. 880, 82 N. W. 79, holding bonds reciting compliance with 
^* X>ak. Laws 1890, chap. 57, do not estop city to allege excess in- 
^^^tedness where purchaser bound to take notice of existing in- 
*^t>tednes8. 

distinguished In Wetzell v. Paducah, 117 Fed. 657, holding city 
^"^opped to deny bonds issued under authority of statute, purport- 
to comply therewith, on which city paid interest for nine years. 

TJ. S. 294-300, 26 L. 153, LOUISIANA v. WOOD. 

1 (IX, 1082). Money paid on void bonds recoverable. 

^pproved In Aldrlch v. Chemical Nat. Bank, 176 U. S. G30, 44 L. 

^S 20 Sup. Ct 503, holding national bank using money obtained by 

j^^ ^-president as loan from another bank cannot escape liability 

l^^^^use of bank's inability to borrow; Board of Comrs. v. Irvine, 120 

^^^ 692, holding bona fide purchasers of county bonds issued In 

.^^Uaent of outstanding warrants, bonds being adjudged void, en- 

^^efj In equity to enforce rights of original warrant-holders; Geer 

^* School Dlst No. 11, 111 Fed. 088, holding school district cannot 



. ^pe liability to lender of money used to build sc|iooIhouse, who 
^Ocently took bonds void for exceeding statutory indebtedness: 



102 U. S. 300-322 Notes on U. S. Reports. 834 

Holllster t. Ruddy, 66 N. J. L. 68, 48 AtL 610, sustaining reoovery 
on quantum meruit on contract for mason work on bridge, contract 
having been set aside for irregularities; Rice t. Ashland Co., 114 
Wis. 138, 89 N. W. 911, holding purchaser of lands from coiinty 
taking deeds of clerk void fon insufficient purchase price may re- 
cover money paid county having used same; Thompson v. Town of 
Mton, 109 Wis. 595, 85 N. W. 427, holding city borrowing and nsing- 
money for legitimate city purposes liable to lender In action for 
money had and received. 

Distinguished in iState of Washington v. Pullman, 23 Wash. 588„ 
63 Pac. 266, holding city contracting to use and buy water catena, 
at end of term, without election required by Hiirs Code Waah,^ 
f 696, not estopped by receiving benefits. 

SyL 2 ax, 1083). Money obtained without authority restored. 

Distinguished in Travelers' Ins. Co. v. Mayor, 99 Fed. 668, 009, 
holding city not liable to purchaser of bonds issued without au- 
thority to foreign railway in unauthorized subscription, since build- 
ing of station not benefit to city. 

102 U. S. 300-313, 26 L. 87, SIMS v. EVERHARDT. 

Syl. 3 (IX, 1084). Silence no bar to infant's avoidance. 

Approved in Sayies v. Christie, 187 111. 438, 444, 58 N. B. 485, 487, 
setting aside conveyance of minor's share in estate to mother under 
representation that it would be taken from minor's intended hus- 
band on suit of heirs; iShipp v. McKee, 80 Miss. 748, 32 So. 283, 89 
Am. St. Rep. 618, holding mere silence of infant making no afiSrm- 
ative confirmation, being outside State most of time, no afl^mance 
to bar repudiation until statute run; LinviUe v. Greer, 165 Mo. 398, 
65 S. W. 583, holding heirs of female executing deed when minor 
and dying during coverture may disaffirm deed within ten years 
after death. 

Syl. 5 (IX, 1085). Infant not estopped by claiming maturity. 

Approved in Sanger v. Hibbard, 104 Fed. 457, holding minor's 
bond to dissolve attachment on goods purchased in part from 
attaching plaintiffs no affirmance of contract to hold him after 
repudiation on majority. 

102 U. S. 314r517. Not cited. 

102 U. S. 318-322, 26 L. 180, LANAHAN v. SEARS. 

Syl. 1 (IX, 1086). Absolute deed plus defeasance constitutes 
mortgage. 

Approved in Security Trust Co. v. Loewenberg, 38 Or. 169, G2 Pac. 
649, holding absolute deed by grantor and contemporaneous de- 
feasance by grantee to recovery on payment of sums advanced 
and to be advanced constituted mortgage. 



335 Notes on U. S. Reports. 102 U. S. 322-3T1 

102 V. S. 322-332. Not cited. 

102 TJ. 8. 333-369. 26 L. 113, HUNNICUTT t. PEYTON. 

SyL 1 (IX, 1087). Court's diacretJoa touehiug bill of exception. 
.A-Fproved in Reliable locubator, etc., Co, v. Stahl, 102 Fed. 593. 
Isoldlns bill or exceptions presented for signature after term in 
'«%-bi<:b judgment rendered must show extension of time; Mercbants' 
Tn^- Co. T. Buckner. 9S Fed. 224. bolding bill of exceptions settled, 
01e'd. and disposed of at subsequent term wbere court keeps control 
c>f J vdgment until new tria! motion determined; Jobnson v. Gebbauer. 
1SS> lud. 276, 64 N. E. 857, holding unconstitutional Ind. Acts 1901. 
]>. 511, allowing court to extend time for filing bill of exceptions 
-^^-likich should then become part of record. 

^:jl. 8 (IX, lOSS). Declarations admissible in private boundarj- 
<iisX»«le8. 

-A.pproved in Hunnicutt T. Peyton, lOS Fed. 32S, 329, holdlug 
a<i»33lasibte as Texas rule of property declarations of dcceaBed sur- 
■^e'J-or made oa ground aa to location of monument though surveyor 
interesled In land; Barrett t. Kelly. 131 Ala. 3S1, 30 So, 827, holding 
^*"»*oneoua admission of declarations of witness" deceased father. 
'^bo collected rents for persons claiming property, as to boundary 
•iD«> thereof; Dozler v, McWhorter. 117 Ga. 791, 45 S. E. 63, holding 
"^•^mlssible decedent's declarations claiming ownership of fieri 
'^^^'aa issued on judgment; Schlossmagle v. Kolb. 97 Md. 293. 54 
■*-*^- 1009, holding rightful patentees entering peacefully into pos- 
^^SioQ and leasing to tenants in possession, stopped adverse pos- 
^^^slon statute and enabled them to bring trespass. Sec notes, 94 
•*-<». St. Rep. 679, (tSO. 

^^iatlnguisbed In Soutbeni Iron Works v. Central of Georgia R. 
**■- Co.. 131 Ala. 656, 31 So. 725. holding inadmissible declarations 
"^^ <leceased corporation officers ns to location of Iwundarles of 
^'^alty owned by corporation not made Id course of any duty. 
<IS;, 1087). Miscellaneous. 

-^-piproved In Empire State. Idaho, etc., Co, v. Bunker Hill, etc., 
**-. 121 Fed. 077, holding equity will prevent trespass by defendant 
" X>]alntitrB mining claim on claim of extralateral rights in lode 
** "^hlcli defendant's claims situated. 
■***S -jj, s. 370-371, 2B L. 121, DRAPER v, DAVIS, 

^IS-l. 1 (IX, 1080), Power of lower court over appeal, 

-^ pproved in Fllzpatrick v. Graham, 119 Fed. 354, holding writ 

^rror in which all defendants joined conferred jurisdiction on 

. **t*«ll8te court though not all joined In petition for writ, writ not 

^*t«g amendable; lo re Fieclitl, 107 Fed. 610, holding citation ua- 

_ ^^^^Bsary when appeal taken by approval of appeal bond within 

^*St in wblch order appealed from was entered. 

K^ latin guiebed in Riverdale Cotton Co. T. Alabama, etc., Utg. Co^ 



Of 



*©«-». 




102 U. S. 37^-408 Notes on U. S. Reports. 836 

111 Fed. 433, holding Circuit Court having rendtf ed decree cm which 
appeal is pending may enjoin party to suit from prosecuting in other 
State action involving same rights. 

Syl. 2 (IX, 1089). Accepting bond, signing citation. Is appeaL 

Approved in Chamberlain Transp. Co. y. South Pier Coal Co.* 126 
Fed. 166, holding order granting leave to file petition and assignment 
of errors, and subsequent approval of appeal bond reciting allowance 
of appeal sufficient. 

Distinguished in Loveless v. Ransom, 109 Fed. 391, holdins: ap- 
proval of bond on writ of error does not operate as writ of error. 

102 U. S. 372-375, 26 L. 213, UNITED STATES v. ATHERTON. 

Syl. 1 (IX, 1000). Circuit Court correcting its decree. 

Approved in Edward P. AUis v. Withlacoochee L. Co., 105 Fed. 
682, sustaining Circuit Court's refusal of amendment bill where 
motion for leave to amend filed four months after demurr^ sus- 
tained and amended bill filed four months later. 

Syl. 2 (IX, 1090). Bill for fraud must allege facts. 

Approved in James v. Germania Iron Co., 107 Fed. 601, holding 
one attacl^ing patent showing patent issued to second instead of 
first applicant, after prior entry officially declared void by depart- 
ment, entitled to change thereof; Deweese v. Smith, 106 Fed. 446w 
holding action of comptroller in levying second assessment on 
national bank stock cannot be raised in suit by receiver to collect 
same; Lyman v. Kansas City, etc., R. R., 101 Fed. 639, holding in 
suit to vacate release of mortgage fraud must be established by 
showing specific acts charged. 

Distinguished in King v. McAndrews, 111 Fed. 865, holding land 
department had Jurisdiction to issue patent for land opened by act 
^larch 2, 1889, and patents not attacked collaterally. 

102 U. S. 375-^78, 26 L. 214, DENSMORE v. SCOFIELD. 

(IX, 1090). Miscellaneous. 

Approved in National Phonograph Co. t. Schlegel, 117 Fed. 628; 
denying injunction to restrain purchasers of phonographic goods 
from plaintiff from selling same at less than prices fixed by contract 
with plaintiff. 

102 U. S. 378-408, 26 L. 167, 219, UNITED STATES V. SOHURZ. 

Syl. 5 (IX, 1091). Land department not controllable by mandamus. 

Approved in Keim v. United States, 177 U. S. 293, 44 L. 775, 20 Sup. 
Ct. 575, holding action of secretary of interior in discharging depart- 
ment clerk for incompetency not reviewable to compel payment of 
salary; Boynton v. Haggart, 120 Fed. 828, holding bill to avoid 
swamp land patent issued thirty-two years before by Arkansas 
governor and auditor under 9 Stat. 519, barred by delay; King v. 
McAndrews, 111 Fed. 864, holding patent granted by land depart* 




^^ Notes on U. S. Reports. 102 U. 8. 40S-i22 

^^Xit covering land opened by act Congress March 2, 1889, within 
j'H^dlctlon and not open to collateral attack. 

SyL 6 (IX, 1092). Essential acts done passing title. 

-Approved In United States v. Clark, 125 Fed. 776, holding de- 
-^^izftdant whose vendor bought lands of entryman after issue of 
certificate, but before patent, bona fide purchaser; Cosmos 
loratlon Co. v. Gray Eagle, etc., Co., 112 Fed. 12, holding Federal 
^mjTta without Jurisdiction to determine right to land where corn- 
selection of lieu lands not accepted by department be- 
muse In possession of oil location, affirming, 104 Fed. 44. 

SyL 7 (IX, 1093). Mandamus compelling performance of mlnls- 
srlal duty. 

::K)lstingulshed In Klmberlln v. Ck>mmission, etc., 104 Fed. 658, re- 
mandamus to compel enrollment of Indian for citizepsbip In 
iSzBJckasaw nation, such resting in discretion of commission. 

SyL 8 (IX, 1094). Delivery of patent enforced by mandamus. 

^^pproved In Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 

^ S. 308, 315, 23 Sup. Ct 695, 698, 47 L. 1070, 1073, holding courts 

'^e no Jurisdiction to determine right to land claimed as lieu lands 

ere selection not approved by department; Bockfinger v. Foster, 

U. S. 125, 23 Sup. Ct 840, 47 L. 979, holding claimant under 

^mestead laws cannot sue Oklahoma townsite trustees to divest 

e held under act May 14, 1890, title being essentially In United 

etes; Moran v. Horsky, 178 U. S. 210, 44 L. 1040, 20 Sup. Ct 858, 

^ding State court decision sustaining defense of laches against 

m to mining property abandoned for fourteen years, apparent 

^e obtained under void patent, not Federal question. 

U. S. 408-415, 26 L. 184, MANUFACTURING CO. v. LADD. 

SyL 1 (IX, 1094). Reissue Increasing patent claims dis- 
^^intenanced. 

^^pproved In American Bell Tel. Co. v. National Tel., etc, Ck>., 109 
1009, holding claim for patent on machine to reproduce musical 
^^:uids, but not adapted to reproduce speech, not amendable by 
king it speech transmitter. 

U. S. 415-422, 26 L. 187, DANIELS v. TEARNEY. 

^yL 3 (IX, 1096). Estoppel not Instrument of wrong. 

-Approved in Bryan v. Pinney, 3 Ariz. 421, 31 Pac. 549, holding 
^Cmee of widow's equity estopped to assert same against as- 
ee of certificate of sale of mortgagee, who was also admin- 
'fttor, defendant holding three years. 

^yL 4 (IX, 1096). Accepting benefit unconstitutional law estops 

aL 

^X^proved in Western Union TeL Co. v. Pennsylvania B. B. Co., 120 
VoL 11 — 22 






102 U. S. 422-426 Notes on U. B. Reports. 

Fed. 383, holding telegraph company occupying railroad right of 
way for twenty years under lease cannot deny railroad's right to re- 
enter on termination of lease; Hardwicke & Ck). v. Young, 110 Ky. 
509, 62 S. W. 12, holding plaintiff estopped by dismissal of suit to 
restrain collection of school taxes in certain district, to seek to 
enjoin collection of same taxes unconstitutional; Ross y. GafFney 
City, 57 S. C. 108, 35 S. E. 440, holding petitioner requesting ordi- 
nance exempting corporation from taxation, which ordinance in- 
fluenced location of plant and increased petitioner's dividends, can- 
not object to exemption because of private tax increase. 

Distinguished in O'Brien v. Wheelock, 184 U. S. 490, 46 L. 665, 
22 Sup. Ct 369, holding landowners not estopped to deny constitu- 
tionality of statute authorizing assessments for improvements by 
assisting in passing act and assuming its validity. 

102 U. S. 422-426, 26 L. 216, UNITED STATES v. KNOX. 
Syl. 1 (IX, 1097). One complete assessment bars second. 

Approved in Studebaker v. Perry, 184 U. S. 267, 46 L. 533, 22 
Sup. Ct 467, holding comptroller of currency authorized to make 
second assessment upon shareholders of insolvent national bank, 
first proving insufficient to pay debts of bank; Bailey v. TUlInghast, 
09 Fed. 805, holding receiver of insolvent national bank may sue in 
equity to enforce assessment against stockholders, such assessment 
being less than full liability. 

Distinguislied in Aldrich v. Campbell, 97 Fed. 667, 668, upholding 
comptroller's power to order successive assessments on stockholders 
where aggregate does not exceed par value of stock. 

Syl. 2 (IX, lOOS). Stockholders liable to extent of stock. 

Approved In Hale v. Allinson, 188 U. S. 78, 23 Sup. Ct. 253, 47 
L. 393, Iiolding equity has no Jurisdiction of suit to enforce statu- 
tory liability of foreign corporation stockholders in which full par 
value domandod: Lease v. Barscliall, 106 Fed. 763, holding stock- 
holders of nntioual bank having paid their portion of 39 per cent. 
assessment, receiver cannot be made to pay amount unpaid by 
other stockholders; Studebaker v. Perry, 102 Fed. 948, holding 
comptroller may make successive assessments after collection by 
receiver of first In suit at law. 

Distinguished in Rehbein v. Rohr, 109 Wis. 150, 85 N. W. 820, 
holding under Wis. Rev. Stat. 1898. § 2024, creditors entitled to 
recover from stockholder of Insolvent national bank par value of 
stock held regardless of other stockholders. 

Syl. 4 (IX, 1098). Stockholder's liability unaffected by another's 
insolvency. 

Approved In Boyd v. Schneider, 124 Fed. 242, holding right to 
maintain suit ngalnst directors of insolvent national bank to recoyer 
sums alleged to be lost through mismanagement rests In receiver 



839 Notes on U. S. Reports. 102 U. S. 426-400 

alone; Howarth t. Angle, 162 N. Y. 191, 56 N. B. 494, holding Ua- 
hUitjr of resident stockholder is contractual and enforceable in an- 
other State, unaffected by insolvency of other stockholders; Mer- 
ciiantja* Nat Bank v. Wehrmann, 69 Ohio St 171, 172, 68 N. B. 1006, 
1007, liolding transfer by customer of bank of nine shares in part- 
nersbLljp to secure payment of indebtedness to bank made bank 
owDer in severalty not partner. 

3yl- 5 (IX, 1098). Ck)mptroller's assessment conclusive upon stock- 
lioldexrs. 

Apr>roved in Smith v. Brown, 187 U. S. 639, 23 Sup. Ct 845, 47 
L. 3%^^ reafBrming rule; Studebaker v. Perry, 184 U. S. 265, 46 L. 
632, 22 Sup. Gt 466, holding comptroller may make successive as- 
KssiK^^nt upon shareholders of insolvent national bank where earlier 
assescsxnents insufficient to pay bank's debt; Deweese v. Smith, 106 
Fed. -441, 444, 445, holding stockholder's liability attaches when 
comi^-tix^Uer levies assessment and successive assessments to amount 
of pa.:p value may be levied and collected; Howarth v. Lombard, 175 
Mass. 575, 56 N. B. 890, 891, holding bank stockholders liable in 
suit l^^r Massachusetts' receiver on insolvency of bank for double 
ilaWLitry imposed by Hill's Anno. Stat & Codes Wash., § 1511. 

'W*'Mnguished in De Weese v. Smith, 97 Fed. 315, holding recovery 
^ '^c^eiver of assessment less than par value of stock ordered by 
^^P'Ci^oller bars second assessment and second suit thereon. 

102 Ur_ g 426-441, 26 L. 189, MoELRATH v. UNITED STATES. 

^^ 6 (IX, 1099). Government recovering money properly paid. 

'^PX>»)ved in United States v. Dempsey. 104 Fed. 199, holding 
"nit^«=^ States may recover money paid by paymaster to Indian 



agen^ as commutation for quarters through error of law; Gross v. 
^^r^. etc., 158 Ind. 537, 64 N. E. 28, holding county not bound by 
conn^^^ commissioners' allowance of claim for fees to treasurer 
additi^^nal to salary, such being prohibited by Ind. Acts 1891, p. 452. 

102 Cr^ g. 442-451, 26 L. 193, SWIFT v. SMITH. 

Syl^ 1 (IX, 1100). Purchaser's rights before maturity for value. 

-^I^^E^TOved in Ferris Irr. Dist v. Thompson. 116 Fed. 838. holding 
P'^^^^we of irrigation district bonds, reciting compliance with 
"^^"^^j not rendered, not bona flde because purchased from presi- 
dent ^>t district 

102 t3^^ g^ 451-460, 26 L. 141, PENNSYLVANIA CO. v. ROY. 
^^ 2 (IX, 1101). Carrier owes passenger extraordinary diligence. 
^^X>roved in New York, etc., R. R. v. Baker, 98 Fed. 696. holding 
H!ft3f^^d not liable for negligence of employee of New York board 
Va ctxarge of elevating railroad, injuring plaintiff in train by swing- 
Vug ^^rrick against car; Railroad v. Kuhn, 107 Tenn. Ill, 127, 130. 
^ ^ W. 203, 206, 207, holding railroad liable for break in track 



i 



102 U. S. 451-400 Notes on U. S. Reports. MO 

causing derailment of car occasioning plaintiff's Injmy, companj 
not showing utmost care to avoid washout of culvert See 77 Anii 
St Rep. 27, note. 

Syl. 4 (IX, 1102). Carrier liable for falling sleeping-car berth. 

Approved in New Torli, etc., R. R. v. Balier, 98 Fed. 687, releasing 
railroad from liability for injury caused by negligent use of derrick 
by employee of board vested by legislature with raising railroad; 
Mathls V. Southern Ry., 65 S. C. 279, 43 S. E. 687, holding carrier 
liable for damage due to failure to furnish refrigerator cars for 
shipment of melons, where owner of cars failed to produce cars; 
New York, etc., R. R. Co. T. Cromwell, 98 Va. 230, 35 S. EL 445, 
holding railroad using cars of refrigerator company bound to nse 
same care toward strawberries shipped therein as if cars belonged 
to company; Herrman v. Great Northern Ry., 27 Wash. 486, 68 Pac 
86, holding carrier using union depot liable for injuries occasioned 
l)y unsafe condition of approaches thereto though premises under 
control of receiver of depot company. See notes, 85 Am. St Bep. 
837, 838. 

Distinguished in Patton v. McDonald, 204 Pa. St 523, 54 AtL 358. 
Iiolding government contractor unlawfully assigning contract to 
corporation not liable to worliman hired thereafter by contractor 
for injuricfs due to negligence of corporation superintendent 

Syl. 5 (IX, 1103). Pecuniary condition irrelevant In damage snit 

Approved in Lipp v. Otis Bros., etc., Co., 161 N. Y. 664, 56 N. B. 
80, holding erroneous admission in action by father, sole next of 
kin, for death of child, of evidence as to poverty of deceased's other 
relatives; Sesler v. Coal Co., 51 W. Va. 327, 41 S. B. 220, holding In 
action for personal injuries evidence that plaintiff was married 
lunn with young children immaterial, and admission erroneous. 

Distinguished in Coffeyville Mining, etc., Co. v. Carter, 65 Kan. 
:5(>9, 70 Pac. 636, holding admissible in action for wrongful death, 
•evidence showing pecuniary value of life, including deceased's 
•earning and accumulating capacity, health, expectancy of life, and 
•condition of survivors. 

Syl. 6 (IX, 1104). Withdrawing evidence from jury cures error. 

Approved in Tubbs v. United States, 305 Fed. 63, holding 
erroneous introduction of letter in criminal case cured by court's 
strilving it out and directing jury not to consider it; State v. Hlll« 
52 W. Va. 301, 43 S. E. 161, holding admission of evidence that pros- 
titutes dwelt in house of defendant charged with stealing shoes 
cured by subsequent exclusion thereof and withdrawal from Jury. 

Distinguished in Throckmorton v. Holt, 180 U. S. 567, 45 L. 671, 
holding insufficient attempted withdrawal from Jury by instruction, 
after long trial, of bpinion evidence of witnesses upon genuineness 
of testator*s handwriting not based on writing itself. 



341 






V. S. Reports. 102 D. S. 401-533 



102 TJ. S. 481-«J7, 26 L. 217, HALL v. LAW. 
Syl. 2 (IX, 1105). Color ot title — Instrument, apt words. 
S€^e 88 Am. SL Rep, 708, note. 
102 'Cr. 8. 467-172. Not cited. 

102 "O. S. 472-533. 26 L. 197, MERIWETHER v. GARRETT. 
Syl. 1 (TX, 1106). Property for public uses not attachable. 
4-I>proTed in Kerr v. New Orleans, 126 Fed. 924, holding ou appeal 
lor preliminary injunction restraining seizure of BQuare of ground 
ana bnildlngH, such property, If locus publlcus, not subject to 
seizure; Lake Co. Water Sc L. Co. v. Walsb. 180 Ind. 44. 63 N. E. 
534, holding water-works system and electric-llgbt plant property 
lield for public purposes not disposable by city without expresa 
legtslatlre authority; Mayor, etc., Council of Monroe v. Jobnson, 
Sheriff, 106 La. 352. 30 So. 841, holding gravel pit and machinery 
nsed by city In Improving streets property which judgment cred- 
itors cannot seize. 

^distinguished in Workman t. Mayor, etc.. of New York, 179 D. S. 
^^S. 43 L. 322, 21 Sup. Ct. 21 7, boidlng city liable for damages under 
""•fltime law for injuries to vessel by collision of flreboat doe to 
•"^Bligence of crew in going to flre. 

^y'- 3 (IX, 1107), Taxation exercieed only under leglslatlTe au- 
thority. 

Approved In McClaln v. Fleshraan, 106 Fed. 883, afBrmlng, Flesh- 
"•an V. McClaln. 105 Fed. 013. lidding payment of Internal revenue 
'BK on goods for which stamps not purchased recoverable, since 
ctamp duty enforceable only by sale of stamps; VIcksburg S., etc., R. 
"■ Co. V. Trajlor. 104 La. 293. 29 So. 145, holding 2 per cent, per month 
'"terest affixed as penalty for delinquency of ordinary State taxes 
"f* made penalty for delinquent taxes for railroad; Baltimore v. Safe 
P^POBit. etc.. Co., 97 Md. 662. 55 Atl. 317. upholding Md. Acts 1902, p. 
''^- chap. 480. providing railway bonds and stock held in trust tax- 
"^^^ to cestui que trust instead of legal owner: Crafts v. Hay. 22 
"- I. 186, 46 Atl. 1045. upholding R. I. Pub. Laws, chap, 86, i 387. 
**©ttlptlng certain electrical property from taxation for ten years; 
^Ssentlng opinion in Adams v. City of Beloit, 105 Wis. 381, 81 N. W. 
'**. majority holding Wis. Rev. Stat. 1893. chap. 40a. S9 175. 177, 
"'^tliorizes assessment of cost of repavlng streets to abutting 
property. 

^yi, 4 (IX. 1108). Taxes collected only under legislative authority. 
Approved in South Bakota v. North Carolina. 192 tJ. S. 318. 24 
^"P. Ct. 276. holding suit by South Dakota as donee of bonds Issued 
■y I^ortb Carolina, secured l)y railway mortgage, to subject mort- 
^"Ee property. Federal question; State v. Thome, 112 Wis. 80. 87 
"■ ^A'. 798, uplioidlcg proceedings under. Wis. Rev. Stat. 1898, 



A 



102 n. S. 584-641 Notes on U. S. Reports. B42 

f 1077a, for review of equalization of assessors' of county by com- 
mission appointed by circuit Judge. See 72 Am. St. Rep. 95, note. 

Distinguished in South Dakota v. North Carolina, 192 U. S. S19, 
24 Sup. Gt 276, holding suit by South Dakota as donee of bonds 
issued by North Carolina, secured by railway mortgages, to subject 
mortgaged property. Federal question. 

Syl. 7 (IX, 1108). Whether court receiver can collect taxes. 

Approved in Ollivler y. City of Houston, 93 Tex. 207, 54 8. W. 
942, holding Houston amended charter authorizing delinquent tax- 
payer to plead four-year limit in pending tax suits yiolateci Tex. 
Const, art. 3, § 55. 

Distinguished in Grand Rapids, etc., Co. y. Trustees of School 
Dist, etc., 102 Ky. 559, 44 S. W. 90, holding court of chancery has 
no power in suit by Judgment creditor to appoint receiver to collect 
school district tax, on trustee's inability to collect 

Syl. 8 (IX, 1108). State may repeal municipal charter. 

Approved in Mercantile, etc.. Deposit Co. y. Collins Park R. R., 90 
Fed. 820, holding suit to enjoin enforcement of city ordinance re- 
pealing franchise having force of grant from State raises Federal 
question; City of Monterey v. Jacks, 139 Cal. 556, 73 Pac. 442, hold- 
ing in action to quiet title to Monterey pueblo lands, Cal. act April 
2, I860, confirming sale by trustees, cured absence of corporate seal 
in conveyance; State v. Steunenberg, 5 Idaho, 4, 45 Pac. 463, up- 
holding incorporation of city of Caldwell under Idaho Sess. Laws 
1893, p. 97, " for organization of cities and villages;" Mayor, etc.» of 
South Morgantown v. City of South Morgantown, 49 W. Va. 781, 
40 S. E. 16, upholding W. Va. Acts 1901, chap. 144, incorporating 
city of Morgantown, including towns of Morgantown, South Mor- 
gantown, Seneca, and Greenmont 

Distinguished in State v. Barker, 116 Iowa, 103, 89 N. W. 200, 
holding unconstitutional Iowa Code, § 747, as amended, authorising 
District Court to appoint trustees of water-works in cities of first- 
class. 

Syl. 9 (IX, 1108). Taxes are not debts but imposts. 

. Approved in Emshelmer v. New Orleans, 116 Fed. 895, holding 
Federal court cannot entertain suit by holders of warrants against 
abolished police board to compel city to pay same from taxes levied 
but uncollected; dissenting opinion in Harris v. Larsen, 24 Utah, 
147, 66 Pac. 784, majority holding where purchaser of realty gave 
bill of sale of hogs in part payment, Judgment for failure to deliver 
hogs was for debt for realty. 

102 U. S. 534r^541, 26 L. 227, WADSWORTH v. SUPERVISORS. 

SyL 1 (IX, 1111). Actual bond subscription necessary for con- 
tract 
Approved In Wilkes County Comrs. v. Coler, 180 U. S. 531, 46 U 



. Reports. 102 U. S. 541-563 

655, 21 Sup. Ct 487, boldLng rights of parlies on county bonds gov- 
emed by State decisions at time of Isv^unce and placing on market; 
Cooper Hospital v. Camden. 68 N. J. L. 701. 54 Atl. 423. holding 
charter of private corporation enacted with tax exemption clause 
before New Jersey constitutional amendment 1S73, but not accepted, 
not exempting corporation from taxes. 
102 U. S. 541-H5, 26 L. 224, LORD v. STEAMSHIP CO. 

Syl. 1 {IX, 1111). Congress regulating liability of shipowners. 

Approved In The Ilobert W. Parsons, 101 U. S. 33, holding Ad- 
miralty Court baa Jurisaiition of enforcement of lien In rem for 
repairs on canat-hoat engaged in traffic in New York on Erie canal 
and Hudson; Qauley v. Kansas City South. Ry. Co.. 187 U. S. 020. 
^ Sup. Ct. 215, 47 L. 330, holding Arkansas railway commission 
cannot fix rates for continuous transportation between Arkansas 
P<*lntB, where large part of route lies In Indian Territory or Texas; 
dissenting opinion in People v. Knight. 171 N. T. 371. 04 N. E. 158, 
'^'ojorlty holding cab aerrlee maintained by railroad company en- 
saged in interstate commerce, but under separate contract, not ex- 
taxation under N. Y. l-awa IBiJB. chap. 908. 

t»lsliiiguisbed In People v. Knight, 171 N. Y. 362, 363. U N, B. 
^^^, holding cab service mantained by railroad engaged In Inter- 
■t*te commerce, but under separate contract, not exempt from 
laxadon onder N. Y. Laws 1896, chap. 008. 
^**2 tJ. S. 546-548. 26 L. 245. INSURANCE CO. t. ELDREDGE. 

By\. 1 (IX, 1113). Purchaser taking subject to noteholder's lien. 

-Approved In Reed t. Jennings, 198 111. 479, 83 N. B. 1007, holding 
^■here purchaser of lots, under trust deed, selling same with notice 
^ w-Ife and obtaining unauthorized release of lots before payment 
*' money due. release void; Mann v, Jummei, 183 III. 531, 532, 56 
'^- B. 163. holding one taking trust deed of trustee and cestui to 
*^cure latter's note, after record of release of prior trust deed on 
satae property, protected by such release. 
102 tl. S. 548-656. 20 L. 226, UNITED ST.\TES v. PINSON. 

^yl. I |IX, 1113). Revenue officer's authenticated accounts admt>- 
slbie evidence. 

■Approved In Harvey t. United States, 97 Fed. 455, holding frag- 
mentary transcript from books of treasury department containing 

"fted States marshal's accounts for portion of term insufficient to 

**1nd judgment against sureties thirty -three years later. 
^•^ v. S. 556-563, 26 L. 229. GORDMAN t. NIBLOOK. 

^yL 1 (IX, 1113). Assignment to creditors, Including government 

Approved In Thayer t. Preasey, 175 Mass. 233, B6 N. E. 7. uii- 
^^WOing under Eey. Stat. | 3477. preyentlng assignment of claims 




102 U. S. 564r-575 Notes on U. S. Reports. 844 

except uuder formalities, assignment of claim for patent infringe- 
ment where government had made appropriation therefor. 

Distinguished in Hoffeld v. United States, 186 U. S. 277, 46 L. 
1163, 22 Sup. Ct. 929, holding purchaser of original rights of entry- 
man at execution sale against entryman or grantee not assign under 
21 Stat at Large, 287, for repayment when entry erroneous. 

Syl. 2 (IX, 1114). Assigning Federal claims prevented — Policy 
behind. 

Approved In Fewell v. Surety Co., 80 Miss. 791, 28 So. 756, 92 Am. 
St. Rep. 628, holding Rev. Stat, § 3737, limiting assignment of Fed- 
eral claims, inapplicable to determine rights of parties under agree- 
ment of contractor for public building and creditors; State v. Kent, 
98 Mo. App. 289, 71 S. W. 1068, upholding city ordinance providing 
that city employees shall not assign their claims for wages. 

Syl. 4 (IX, 1115). Decree after published service binds non- 
residents. 

Approved in Idaho Gold Min. Co. v. Winchell, 6 Idaho,. 736, 59 
Pac. 535, holding lienholder on property seelwing payment of debt 
from proceeds of sale cannot afterward resort to such property. 

102 U. S. 564-571, 26 L. 232, GEORGE v. TATE. 
Syl. 3 (IX, 1115). Fraud confined to execution at law. 

Approved in Hill v. Northern Pac. Ry. Co., 113 Fed. 917, holding 
party executing release for claim against railroad for injuries can- 
not avoid same for fraud unless offering to return consideration 
received, affirming Hill v. Northern Pac. Ry., 104 Fed. 757, holding 
written release of cause of action intentionally executed by plaintiff 
on payment of agreed sum cannot be impeached for fraud in suit at 
law; Papke v. G. R. Hammond Co., 192 111. 637, 61 N. E. 913, hold- 
ing in action at law for damages where release introduced false 
representations as to nature and value of consideration inadmis- 
sible. 

Distinguished in Such v. Banls, 127 Fed. 451, holding receipt In 
full in nature of release not under seal may be avoided at law in 
Federal court for fraud. 

Syl. 6 (IX, 1116). Assignment of claim transfers attachment 
bond. 

Approved in Rufe v. Commercial Bank, 99 Fed. 654, holding 
irrevocable power of attorney to collect judgment pending on ap- 
peal operated as assignment of compromise judgment entered In- 
stead. 

102 U. S. 572-575, 26 L. 234, WILSON v. McNAMEE. 

Syl. 1 (IX, 1116). Only objections taken considered on appeaL 

Approved in J. B. M'Farlan, etc., Co. v. Solanas, 106 Fed. 158, 
refusing to reverse Judgment for refusal to grant order to tmstes 



345 Notes on U. S. Reports. 102 U. S. 57&-586 

to jNiy plalntlfTs claim where court reserved plaintiff's right, but 
'atter reserved no exception. 

Syl 3 (IX, 1116). Pilot recovering for tendered services. 

Approved in Robinson, etc., Ck). v. Belt, 187 U. S. 50, 23 Sup. Ct. 
19> 47 L. 69, holding objections to validity of assignment for cred- 
itors tor want of acceptance and to form of Judgment cannot be 
raised for first time in Supreme Ck)urt; The Carrie L. Tyler, 106 
Fed. ^^24, holding under Code N. C, SS 3406, 3505, barge of requisite 
tonnsLge, though in tow of tug with license pilot, liable to pilot whose 
servf oes it refused. 

102 Hr. S. 575-577. Not cited. 

102 CT. S. 577-586, 26 L. 235, BENNETT v. RAILROAD CO. 
Syl. 1 (IX, 1117). Landowner liable to invited persons. 

Apx>roved in Foster v. Portland, etc., M. Co., 114 Fed. 615. hold- 
IBS defining corporation erecting dwellings upon its mining land, 
without opening streets, liable for injury to person from falling 
Into Unguarded ditch beside pathway; Ellsworth v. Metheney, 104 
Fed. 122, holding mineowner liable for death of miner caused by 
contact with uninsulated electric wire placed through passages of 
mine used by employees without warning them; Moore v. Stetson, 
W Me. 203, 52 Atl. 770, holding workman injured by falling from 
^ne placed on roadbed for ballast, use being apparent, cannot 
recover therefor; Herrman v. Great Northern Ry., 27 Wash. 485. 
® Pac. 86, holding carrier using union depot liable for injuries be- 
cause of negligent failure to maintain safe approaches, though prem- 
ies under control of receiver of depot company; Sesler v. Coal Co., 
61 W. Va. 322, 41 S. E. 217, holding, reversing on other points, con- 
tractor going upon premises to perform contract may recover for 
injuries from timbers thrown upon him; Hupfer v. National D. Co., 
114 Wis. 291, 203, 90 N. W. 195, 196, holding defendant distilling 
company liable for death caused by bursting of slop vat where 
decedent was repeatedly allowed to stir slop therein. 

I>istinguished in Clark v. Northern, etc., Ry., 29 Wash. 147, 69 
Psc. 639, holding railroad not liable for death of boy caused by 
crossing tracks to approach circus grounds in railroad yards, switch- 
men Warning boy of other way. 
Syl. 3 ^x, 1120). Invitation Inferred from common Interest. 

Approved in Chicago, etc., R. R. v. Martin, 31 Ind. App. 318, 65 
' ®- 595, holding stone company liable for death of employee 

essin^ stone on car set on grade, where car ran away and dece- 

®°* \v^g killed in Jumping; Simonton v. Light & Power Co.. 28 

®^- Civ. 377, 67 S. W. 531, holding maintenance of spikes in elec- 

. *^^^t poles in. ordinary manner to facilitate repair of wires no 

1^^^^^° *^ children to use same, rendering company liable; Hupfer 

-^^tlonal D. Co., 114 Wis. 284, 90 N. W. 193, holding distilling 





, •■ '"'-Si'-"'* 

■•='■ ' . .;»°' *' 

■»■•- •■-'...-. .otnort"" , 



Sir Notes on U. 8. Reports. 102 U. 8. G2S-e72 

102 U. & 62^-625. Not cited. 

102 U. 8. 625-634, 26 L. 122, WELLS y. SUPERVISORS. 

8jh, 2 (IX, 1124). Bonds void unless city has power. 

Approved in Watson t. Huron, 97 Fed. 450, holding dty treas- 
oiy ^Arrants payable to person named or ordered, though indors- 
able, not negotiable to pass free from equities. 

Syl. 4 (IX, 1124). Prescribed mode of meeting liability exclusive. 

Api>xoved in Holwerson v. St Louis, etc., Ry. Co., 157 Mo. 250, 
57 8. W. 780, holding in absence of contract, violation of city 
ordiaasce requiring motormen to lieep vigilant loolcout of persons 
crossing track gives no action for wrongful death; Utley v. Hill, 
155 a«o. 273, 78 Am. St Rep. 596, 55 S. W. 1102, holding banlc 
directors not liable in deceit for statements made to secretary of 
State as to bank's condition, required under penalty by Mo. Rev. 
Stat 3:880. 

^02 U. 8. 634-641. Not cited. 

102 O. S. 641-647, 26 L. 266, KAHN v. SMELTING CO. 
SyU 3 (IX, 1125). Mining partnership peculiar. 

^I^X>i-oved in Ghilders v. Keely, 47 W. Va. 73, 34 S. E. 829, hold- 
^i tenants in common or Joint tenant of oil lease or mine jointly 
^^PCf^'tJng same constitute mining partnership. 

^y^ 4 ax, 1126). Mining partner entitled to accounting. 

8e^ «1 Am. St Rep. 874, note. 
102 tJ^ s. 647-650. Not cited. 
102 r^. g. 651-«S8, 26 L. 291, BARRETT T. HOLMES. 

S7l« 1 (IX, 1127). Federal courts follow State Statute of Llmlta- 
tiona« 

^PX>roved in Ashley Go. v. Bradford, 109 La. 653, 33 So. 639, 
upholfling article 233, Const La., providing no sale for taxes to be 
^ B^lde except for double assessment or prior payment unless 
brou^lit in three years. 

102 U. s. 658-663. Not cited. 

102 U. 8. 664-672, 26 L. 268, PAGE v. BURNSTINE. 

8yl. 1 (IX, 1129). Rev. Stat, § 858, applies to District of Columbia. 

Distinguished in Corbus v. Leonhardt, 114 Fed. 12, holding under 
Hill's Anno. Laws Or., § 710, in force in Alaska, physician suing 
administrator may state transaction with, and statements of, 
decedent. 

8yl. 2 (IX, 1130). Insurance policy assignments not absolute 
transfer. 

-^PPro^ed in In re Diack, 100 Fed. 772, upholding equitable lien 



102 U. S. 672-707 Notes on U. 8. Reports. 848 

of wife upon endowment policy of husband to extent of premlumi 
paid by her to keep policy alive; Manhattan Life Ins. Co. v. Hen- 
nessy, 99 Fed. 68, holding participation by creditor in benefits of 
general assignment of debtor, conditioned on release of claims li 
full, no discbarge of unpaid portion of debt. See 87 Am. St. Uep 
511, note. 

102 U. S. 672-686, 26 L. 271, HARTMAN v. GREENHOW. 

Syl. 3 (IX, 1131). Supreme Court reviews refusal of mandamus 

Approved in American Express Co. v. Michigan, 177 U. S. 406 
44 L. 824, 20 Sup. Ct. 096, holding proceeding for mandamus U 
** suit " within Rev. Stat. U. S., § 709, for purposes of writ of erroi 
to State court. 

Syl. 4 (IX, 1131). Obligations of divided State bind parts. 

Approved in Millhiser, etc., Co. v. Gallego Mills Co., 101 Va. 696 
44 S. E. 766, holding Va. Code 1887, § 1791, making "licensed* 
warehouse receipts negotiable, does not prevent negotiability o; 
receipts of unlicensed warehouses. 

Syl. 5 (IX, 1131). Detached coupons, independent and negotiable 

Distinguished in Carstairs v. Cochran, 95 Md. 504, 52 All. 603 
upholding Kid. Acts 1892, chap. 704, amended by Acts 19(X), chaE 
320. requiring assessment of distilled liquors against one havlnj 
possession, giving him lien against owner. 

102 U. S. 68G-691, 26 L. 277, SHARPB v. DOYLE. 

Syl. 1 (IX. 1132). Supreme Court re-examining Federal seizor 

bankrupt's goods. 

Approved in Bryan v. Bernheimer, 181 U. S. 196, 45 L. 819, 2 
Sup. Ct. o(i(), holding property of banl^rupt In hands of third pei 
sons included in banlirupt act 1898, § 2, giving court power t 
appoint receiver or marshals to talie possession; In re Smith, 11 
Fed. 094, restraining, on petition of creditors, third party fror 
removing property claimed to belong to banlirupt; In re Young, 11 
Fed. 159, sustaining court's refusal to order property seized by mai 
shal from banltrupt on order under bankruptcy act 1898, retame 
to mortgagee creditors denying mortgage; Carling v. Seymour I 
Co., 113 Fed. 490, upholding possession by receiver of property cc* 
ered by mortgage of creditor of insolvent on foreclosure as agalns 
trustee in bankruptcy entitled to balance. 

102 U. S. 691-707, 26 L. 238, COUNTY OF MOBILE y. KIMBALL 

Syl. 1 (IX, 1133). Congress regulates foreign and Interstat 
commerce. 

Approved in Scranton v. Wheeler, 179 U. S. 159, 45 L. 136, 2 
Sup. Ct. 55, holding pier erected by United States on land unde 
navigable water to improve navigation entitles riparian owner t 



M Notes on D. 8. Eeports. 102 D. S. 691-707 

at compeosatlon; TTnited States v. Northern SecDrltles Co., 120 
Fed, 727, holding agreement between stockbolders of competiog 
parallel Interstate railrouds forming corporation to control stock 
and prevent competition violates antl-truat act ot 1890; Standard 
Oil Go, y. Spartanburg, G6 S. C. 43, « S. E. 379, holding UQConetl- 
fotlonal ordinance Imposing license of ?250 per year npoo oil 
Waters, excepting those dealing In oil on which license has been 
Wd; SoDtbern Express Co. v, Goldberg, 101 Va, 622, 44 S. B, 894. 
''olding unconstitntlonal Va. Code 1887. i 1213, fixing express rates, 
'" far as It attempts to control rates beyond borders of State; dls- 
ssnting opinion In Austin v. Tennessee, 179 U, S. 373, 374, 45 L. 
■^S, 21 Snp. Ct. 143, 144. majority upholding Tennessee restriction 
"' sale of cigarettes, not applying to original packages, nor dls- 
■^^ttilnating figalnst foreign article. 
Sji. 3 (IX. J135). State improvement of harbors valid. 
-Approved in Billings v. Illinois. 1S8 U, S, 103, 23 Snp, Ct. 274, 
'^ X. 403. upholding 111. tax luherllance law holding life estates 
t^^Kabte when remainder to lineal but not when to collateral heirs; 
Lindsay & Phelps Co. v. Mullin, 170 U, S. 149, 150, 44 L. 409. 
Sup. Ct. 334. upholding lien given by Minn. Stat 1894, | 2400. 
(f logs cut 111 another State for scaling by Burveyor-general, while 
'1 log boom; Fauat v. City ot Cleveland. 121 Fed. 812, holding city 
ai^-t liable for vessel's injury from striking snag In navigable stream, 
dutj of supervising same not Imposed by Bev. StaL Ohio 1892, 
1 2€40; CMitral Stock Yards Co. v. Louisville & N. R. K. Co., 118 
Fe<i. 119, holding Slate without power to compel railroad to transfer 
tars of live stock to connecting road within Slate, where shipment 
laterstate commerce; Slate v. Smith, 158 Ind. 550, 63 N. E. 30. np- 
taotdlng md. Acts 1899, p. 422, i 1. providing for deduction from 
■Bsessed valuation of realty of mortgage indebtedness not exceed- 
ing IIOO, or one-half such valuation; Adams v. City of Shelbyvllle, 
154 lad, 471, 77 Am. St Bep. 4S8. 57 N. B. 116, upholding Ind. Acts 
1889, p. 237, ( 3. providing liability ot adjoining property-owners 
tor street Improvements to be according to frontage; Barfleld v, 
GiMson, 111 Ky. 512. 63 8. W. 9G8, upholding Ky. Stat., t 2838. pro- 
Tiding tor oiiglnnl construction of streets in ciUes of first class at 
«tliia|ve cost of abutting lots according to area; Mound City Laud, 
*■'■■. Co, V. Miller. 170 Mo. 255. 70 S. W. 725, 04 Am. St Rep. 730. 
"Pfioldlng Mo, Bev. Stat 1809, J 8251. for establishment of drainage 
'"^trlcti, condemnation of land for ditches, and assessments for 
'wnefitj. 
^71- 5 (IX. 1137). Legislature assessing tor public work. 
■Approved In Consolidated Coal Co, v. lUinola, 185 U. S, 207, 48 L, 
S76, 22 8up^ ct. 617, holding constitutional III. act May 28. 1879, 
' 'Id, conferring discretion upon State mine inspectors to determine 
of inspections and charge thereCor; Browne v. Turner, 178 




102 U. S. 691-70T Notes on U. S. Reports. 800 

Mass. 13, 56 N. B. 970, upholding Mass. Stat 1897, chap. 500, | 17, 
authorizing construction of tunnel and leasing same to street rail- 
way at certain percentage of gross receipts; Barber Asphalt Pay. 
Co. y. French, 158 Mo. 543, 546, 553, 58 S. W. 937, 938, 940, up- 
holding assessment of special tax under Missouri charter to pay for 
street paving authorized by ordinance, assessment being according 
to frontage; Heman y. Allen, 156 Mo. 550, 57 S. W. 563, upholding 
St. Louis city charter, art 6, § 22, assessing whole cost of sewer 
as special tax against lots In district on basis of area alone; Webster 
y. City of Fargo, 9 N. Dak. 210, 82 N. W. 733, upholding assessment 
under N. Dak. Bey. Codes 1895, § 2280, of entire cost of street 
paying against abutting lots according to frontage; dissenting opin- 
ion In French y. Barber Asphalt Paving Co., 181 U. S. 351, 45 L. 
892, 21 Sup. Ct 635, majority upholding apportionment of entire 
cost of street pavement upon abutting lots according to frontage^ 
without preliminary hearing touching benefits. 

Syl. 6 (IX, 1137). Seeking same relief, diflferent facts not barred. 

Approved In Cunningham v. Cleveland, 98 Fed. 661, holding decree 
dismissing bill filed by corporation on ground of no capacity to 
sue no bar against second suit on same cause of action showing 
authority. 

Syl. 10 (IX, 1138). Commerce — Transportation of persons and 
property. 

Approved in Lottery Case, 188 U. S. 351, 23 Sup. Ct 325, 47 L. 
499, holding carriage by express company, engaged In Interstate 
commerce, of lottery tickets, interstate commerce within prohibitory 
power of Congress; Williams v. Fears, 179 U. S. 276, 45 L. 189, 21 
Sup. Ct. 130, holding Ga. Laws 1898, p. 21, Imposing license tax on 
emigrant agents hiring persons for service elsewhere. Imposes no 
burden on Interstate commerce; Lindsay & Phelps Co. v. Mullen, 
176 U. S. 147, 44 L. 408, 20 Sup. Ct 333, upholding lien given by 
Minn. Stat. 1894, S 2400, on logs cut in another State, for scaling 
by surveyor-general while in log boom; Central Stock Yards Co. 
y. Louisville & N. B. B. Co., 118 Fed. 119, holding State has no 
power to compel railroad company to transfer cars of live stock to 
connecting road within State where shipment Interstate commerce; 
Gibbs V. M*Neeley, 102 Fed. 598, holding association of shingle 
manufacturers of State, formed to secure concerted action between 
members to prevent overproduction and maintain uniform prices, 
thus far lawful; Williams v. Fears, 110 Ga. 589, 35 S. E. 701, up- 
holding Ga. tax act 1898, imposing tax upon "emigrant agents;*' 
State V. Nap'er. 63 S. C. 68, 41 S. E. IG. upholding S. C. emigrant 
agent act, 22 Stat, at Large, p. 812, prohibiting hiring laborers for 
foreign field without license. 



351 Notes on U. 8. Reports. 102 U. 8. 707-785 

102 U. S. 707-735, 28 L. 279, TILGHMAN v. PROCTOR. 

SjL 1 (IX, 1139). Patent not anticipated by unused process. 

Approved in Chisholm v. Johnson, 106 Fed. 200, upholding patent 
No. 421,244, for machine for hulling green peas, though process wal^ 
accidentally used before but not understood. 

Bjl 2 (IX, 1140). All possible apparatus not necessarily sub- 
mitted. 

Approved In Burden Wire, etc., CkK v. Williams, 128 Fed. 935, 
holding Bourdon patent No. 381,527, for manufacturing compound 
ingots for seamless plated wire, infringed by process inserting solder 
fint and driving core in' afterward, simply reversing order; Elec- 
tric Smelting & A. Co. v. Pittsburg Reduction Co., 125 Fed. 938, 
holding Bradley patent 468,148, for process for reducing aluminum, 
specifying electric current as about twice ordinary strength, in- 
fringed by patent increasing strength; Electric Smelting, etc., Co. 
▼• Carborundum Co., 102 Fed. 627, holding Cowles patent 319,795, 
Quiring contact granular material with ore to reduce latter by 
^ectrldty, infringed by Acheson method packing silica and carbon 
around central cone. 

SyL 4 (IX, 1141). Some practical process must be shown. 

-Approved in Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 
^ Fed. 269, holding where patent for gloves formed from blanks 
^^scribed in specifications as knitted, claims must be confined to 
^^tted gloves; Durfee v. Bawo, 118 Fed. 855, holding patentable, 
^^^H-Ington patent for improving tone of tubular bells by presence 
°' stiffening device within tube; CImiotti Unhairing Co. v. Com- 
^^k Unhairing Co., 115 Fed. 524, holding Sutton patent machine 
'^P removing hair from fur skins not anticipated by Lake patent, 
^^Pklngs of which were not agreed upon by experts; Chisholm v. 
•^<>lUison, 106 Fed. 200, upholding patent 421,244, for green pea hull- 

^°S machine, though process was accidentally used before but not 

•"^tterstood. 
distinguished in National Meter Co. v. Neptune Meter Co., 122 

^^ 86, holding patent to prevent disk of mutating water meter 

^^ Jamming against case, specifying materials as having higher 

^^'^Qcieot of abrasion than ball, too generaL 



1.':: I 
M. 



7ZD STATES. 



.. XLL T. WISCONSIN. 

. ,. i innul contract. 

l^.i:eil. 91 Md. 6G7, 47 AU. 1041, h. 

>^ni of county school commission 

^ -.-'V joard; Hartigan v. Board of Re 

i. a. 20, 56, 38 S. E. 701, 708, 716, re 

. . .J. .' ;'n»vent removal of professor in univ 

. -jy. DENNICK V. BAILROAD CO. 

^ -s enforceable in competent courts. 

.L-iia V. Oxford Nat. Banl;. 176 U. S. 56; 

-•if. Ct. 479, holding stooicholder's liabil 

^.. i iui CO his stock, created by statute, i; 

..'•■aoie In any court of competent jurisd 

. .iv.^-. -HC. R. R.. 128 Fed. 192, holding acti< 

< s-.t'^cate, citizen of Illinois, caused by rai; 

. -.»:vu:iia. properly brought in Illinois under 

.. ■vr'iacional Nav. Co. v. Lindstrom, 123 Fc 

A'ou fixed and legal liability incurred b 

■ur'. having jurisdiction over subject-matte 

..-..u. Florida Cent. & P. R. R. Co. v. SuUiva 

. .^ A'v of one Stale giving right of action and 

.,.s I r^vvery controls in another State whose 

i.*i!N.>iu: Elliott v. Felton. 119 Fed. 273, holdini 

ui« * not binding on Federal court for reasoi 

•vs "Jot oreate but preserves liability; Wart v. 

^x'lii'it^ jurisdiction as to wills, and their prob; 

. . i\i Mviuvlod in nor excepted out of grant of poT 

„.,>, Mexican Nat. R. R. Co. v. Slater, 115 Fed 

, ..:\*v vrius of procedure and law of trials in F 

■K* no:o out substantial justice because of State 

..... vK'uld decline jurisdiction; Kirtley v. Holme 

^ . .; :s I vH-k holders presumed to take stock 8ubj< 

. . *. tnjvsvM by law on corporation, hence answera 

^ w,..» ^i* wmpetent jurisdiction; Y-ta-tah-wah v. R 

^w «*^'* 'folding rights of citizen or alien enforced in St 

[352] 



■*. 



SS3 



1 U. S. nepiirls. 



103 V. S. 11 21 



Federal court if aid ie properly sought: Vetaloro t. PerkliiB, 10] 
Fed. 396, bolding an action to recover damagcB for tort la not locnl 
but traiwllorf and can, as general rule, be malutaioed wberpver tlie 
wrongdoer can be found: Denver, etc., R. R. v. Uoller. 100 Fed. 
744, holding corporation of one State, lawfully doing buBineas In 
anotbcr. legally served wltb summons Id State where suit la brought 
subject to Jurisdiction of court In tbat Slate; Clarl< v. Bussell, 87 
Fed. 902, holding right eslsting and liability Incurred, the latter may 
t>e enforced and the former pursued In any court having jurisdic- 
tion of matter and parties: Rodman v. Railway Co., 65 Kan. 650. 
TO Pac. 644, holding one must meet conditions of laws In State 
giylng; right if same Is to be enforced In another Slate; Louisville, 
etc., K. R. v. Whitlow's Admr.. 105 Ky. 9, 43 S. W. 713. holding 
law of Stale where right was acquired or liability Incurred governs 
Mglit of action, the remedy Is controlled by statute of State where 
action Is brought; Williams v. Pope Mfg. Co., 52 La. Ann. U30, 
1*31. 1440, 78 Am. St. Rep. 402, 404. 412, 27 So. 857, 858, 861. hold- 
• *B elalm for damages arieing from tort to married women while 
temporarily In one State may be sued on In Slate where injury 
received If she can so sue In State of domicile; Mulhalt v. Pallon, 
^"1 Mass. 268. 79 Am. St. Rep. 312. 57 N. B. 387. holding State 
**KlsInture can confer right to nonresident alien to sue employee 
'or Degligently cftusing death of relative; Mctilnnis v. Missouri, 
^C-. Co., 174 Mo. 235, 73 S. W. 5S9. holding action authorized by 



State 



1 be prosecuted In another State only by personii 



authorlied by such siatute: Harrill v. Railway Co., 132 N. C. 658. 
** S. E. 109, 110, holding tort actions, being transitory by laws of 
"Ie State, may be tried by court of another Stale having Juriadic- 
tlon Of subject-matter and parties; Iteachman v. Portsmoulh Bridge. 
® N. H, 383. 73 Am. St. Rep. 008, 40 Atl. 1000. holding If, In an 
**^"on of tort, there is a conflict between the lei loci and the lex 
''^fl, the former governs; Blair v. Newbegin, 65 Ohio St 440. 82 N, 
^ 1043, holding stockholder subscribing for stock assumes con- 
''^Qal obligation with Incident that creditor may pursue him In 
^ Jorlsdlctlon where service may be had upon him; White v. Rio 
Cwtide, etc.. By., 25 Utah, 354, 71 Pac. 598, holding death result- 
'"S Trom negligence, right of action necessarily depends upon the 
'^ loci of the Injury and not upon lex fori; dissenting opinion in 
^■tU V. Franz, 100 Fed. TOO. 701, majority holding Arkansas stat- 
"te authoridng suit of civil nature at law or In equity of which 
"^eral court may take Jurisdiction, Federal Jurisdiction attaches. 
See noiea, S7 Am. St. Rep. 022; 85 Am. St. Rep. 923. 

Distinguished In Boston, etc.. R. B. v. Kurd. 108 Fed. 119, hold- 
"■S *vlien State sees fit to interpose its grand Jury, and makes 
Vol. 11 — 23 



103 U. S. 11-21 Notes on U. S. Reports. 854 

that an essential part of the proceedings, it is difficult to perceiTe 
how any other State can substitute other process; McOinnis t. 
Missouri, etc., Co., 174 Mo. 229, 73 S. W. 587, holding if statntet 
are administered outside of Jurisdiction where enacted it must be 
done on principles of comity. 

SyL 2 (X, 10). Extraterritorial efTect of State statute. 

Approved in Dormidy v. Sharon Boiler Works, 127 Fed. 485, 
applying Alabama statute glying servant action against master for 
injury by coservant acting under orders, In suit In Federal court In 
Pennsylvania against Alabama principal; Smith v. Empire State, 
etc., Devol Co., 127 Fed. 465, holding service under Ballinger's 
Codes, I 4875, on secretary of foreign corporation operating In 
Washington, In action for death of servant, constitutes due process; 
Cincinnati, etc., R. R. v. Thiebaud, 114 Fed. 922, holding adminis- 
trator appointed in accordance with State statute and given right 
to maintain action where decedent was killed may maintain action 
in another State; Lyon v. Boston, etc., R. R., 107 Fed. 387, holding 
statute does not create new right of action In administrator, but 
keeps alive former one of Intestate, with enlarged, and remedial 
damages; Davis v. Mills, 99 Fed. 41, holding an assignee of claim 
against corporation has right to enforce against Its trustees thelx 
liability therefor, under statute making them liable; Baltimore, etc^ 
R. R. V. Ryan, 31 Ind. App. 603, 68 N. B. 925, holding in action In 
Indiana against railroad for death by wrongful act, plaintiff was 
entitled to benefit of Illinois statute where accident happened; 
Hartness v. Pharr, 133 N. C. 572, 45 S. E. 903, holding damagei 
recovered in action for negligence causing death, the fund received 
is distributed to beneficiaries thereof by statute of place where caose 
of action arose; Utah Savings & Trust Co. v. Diamond O. & O. Co., 
26 Utah, 308, 73 Pac. 526, holding remedy of Rev. Stat Wyo. 1899, 
I 3448, giving action for damages for wrongful death, available to 
representative of deceased In action in Utah. See 91 Am. St. R^ 
731, note. 

Syl. 3 (X, 11). Fellow-servant rule changed by statute. 

Approved In Stern v. La Compagne Generate, etc., 110 Fed. 998, 
holding action In another State rests solely upon statutory enact- 
ments of the territorial Jurisdiction wherein the negligence and 
the death oc<!urred; Maher v. Union Pac, etc., Ry., 106 Fed. 310, 
holding negligence of engineer and conductor, and not of train dis- 
patcher, precludes recovery, they being fellow servants; M'MUlan 
• V. Spider, etc., L. Co., 115 Wis. 338, 339, 95 Am. St Rep. 947, 91 
N. W. 981, holding the legislature of a State may confer right of 
action upon nonresident aliens, but unless It does so, the statute 
is not extraterrltoriaL 



Notes on U. 8. Reports. 103 U. S. 22-44 

%OQ V. S. 22-25, 26 L. SO). PRBWIT v. WILSON. 

SyL 1 (X, 12). Grantor and grantee's fraud vitiates conreyance. 

J^Pinroved in Yansickle v. Wells, Fargo & Co., 105 Fed. '25, holding 
(fte«d from husband to wife in payment of indebtedness not im- 
peachable by husband's creditor on ground that accounts between 
covple cannot be enforced by her; In re Kelley, 81 Minn. 173, 83 
M. W. 505, holding indorsement of rate by member of firm prior 
to insolvency thereof binds firm, provided indorsee creditor had no 
fraudulent knowledge; Blair State Banls v. Bunn, 61 Nebr. 469, 85 
N. W. 529, holding preferred creditor being friend of insolvent 
debtor only raises suspicion, but does not prove fraudulent l^nowl- 
edge of creditor; dissenting opinion in Metz v. Blackburn, 9 Wyo. 
510, 65 Pac. 863, majority holding antenuptial contracts where hus- 
band and wife did not intend to deprive creditors of their rights, 
cannot be set aside. See 90 Am. St Rep. 608, 509, note. 

Distinguished in Metz v. Blackburn, 9 Wyo. 507, 65 Pac. 861, 
lioUliiig antenuptial contracts, where husband and wife did not 
li^tend to deprive creditors of their rights, cannot be set aside. 

^^ XJ. 8. 25-30, 26 L. 473, INSURANCE CO. v. STINSON. 
Syl. 2 (X, 13). Creditor's insurance gives no surety. 

'Approved in dissenting opinion in New Hampshire, etc., Co. v. 
National Life Ins. Co., 112 Fed. 203, majority holding one subro- 
Sate^ to interest of another must raise objections at proper time 
^^ xneet all conditions or be estopped ever afterward. 

distinguished in New Hampshire, etc., Co. v. National Life Ins. 
^•' ^X12 Fed. 206, holding one subrogated to interest of another 
^^^"t, raise objections at proper time and meet all conditions or be 
••^t>X)ed ever afterward. 

8^1. 6 (X, 14). No lien without insurable interest 

^X>X>roved in McLaughlin v. Park City Bank, 22 Utah, 485, 63 Pac. 
^ liolding a receiver or attaching creditor has an insurable interest 
>n^ oan insure property for his benefit; dissenting opinion in Farm- 
*"* XLioan, etc., Co. v. Penn Plate Glass Co., 103 Fed. 161, majority 
boldixig mortgagor not compelled to keep property insured for bene- 
fit o^ mortgagee, and latter has no lien if insurance is procured by 
I""^lia8er of mortgaged property. 

103 XJ. 8. 30-10. Not cited. 

103 XJ. 8. 40-44, 26 L. 317, BAMBERGER v. TERRY. 

Syl. 2 (X, 14). Court rules control amending defects. 

•A.pi>roved in McDonald v. Nebraska, 101 Fed. 177, holding right 
of ameaciQient extends to summons, writs, declaration, return, Judg- 
ment^ etc., in civil causes in Federal court even after trial and 
Judgxnexxt 



p 



103 U. S. 44-6b Notes on D. S. Reporta. 3M 

X03 U. S. 44-ie, 26 L. 367, PENNOCK t. OOMMISSIONEHS. 

Syl. 1 (X, IB). Interests of United States nontaxable. 

Approved in Frazee v. Spokane County, 29 Wasl», 291. 89 Pac 
783, holding lauds not taxable by State so long as the federal go»- 
emmenC has an Interest in them, eltlier legal or eyultable. 
103, D. & 49-62, 26 L. 347. SPRING CO. r. KNOWLTON. 

Syl. 2 (X, 16). Illegal contracts unenforceable. 

Approved [n Equitable Life, etc., Co. v. Wetherlll. 127 Fed. S49, 
refusing recovery of premium paid by agents to Induce Insured 
to take policy under executed contract violafiug Pa. Laws 1889^ 
p. 116; Savings & Trust Co. v. Bear Valley Irr. Co.. 112 Fed. 702, 
holding In void contract where the agreemeut Is no longer executory 
but taas been executed, the courts leave the parties where th&T 
placed themselves. See 87 Am. St Rep. &54, note. 

Syl. 4 (X, 10). Court recognizes illegal executory contracts. 

Approved In Hallett v. New England, etc.. Co., 105 Fed. 221, 
holdiug there being no moral turpitude Involved, plaintiff ought not 
to be the entire loser, and defendant entire gainer, out of prohibited 
transacUon; Stover v. Flower, 120 Iowa, 520, 94 S. W. 1102, Uold- 
Ing defendant not liable to plaintiff for refusal to execute lease of 
rooms for Illegal purpoaes In accordance with contract of busband 
aa agent. 

Syl. 5 (X. 17). Blame of parties not compared. 

Approved In Jones v. Mutual Fidelity Co.. 123 Fed. 633, holding 
in executory contract void by State statute. Innocent party may 
recover moneys paid on account of It; Ex parte Reaves, 121 Fed. 
S51, holding will of parent law for child and others dealing with 
blm, and minor has no power directly or Indirectly to undermlnv 
right of parental control and custodj'; Drinkall v. Movlus Stata 
Bank, 11 N. Dak. 17. SS N. W. 727. 05 Am. St. Hep. 699, holding 
Indorsement of note in gambling sciieme. Indorsee derives no title 
and bank cashl<er having previous knowledge pays note at bis peril; 
Hazard v. Coyte, 22 R. I. 440, 48 Atl. 443. bolding In Illegal trans- 
action which is etili executory, the courts will Interpose and placs 
parties in statu quo. 
103 U. S. 62-66, 26 L. 3B9, MITCHELL v. OVERMAN. 

Syl. 2 (X, IT). Court controls entering decree. 

Approved In Bell v. Bell. 181 U. S. 179, 45 L. 807, 21 Sup. Ot B5S, 
holding Federal court affirms judgment of lower court rendered 
after appearance and answer that it may be entered nunc pro tunc 
as of date of argument; In re Wolff, 100 Fed. 431, holding iachea 
of party in applying for discharge In bankruptcy necesBltates dls- 
mlFiaol without prejudice; Dawaon v. Waldheim, 89 Mo. App. 253. 




K7 Notes on U. S. Reports. 103 U. S. 6&-79 

Loiding particular judgment for suitor not being entered at t^m 
when it should have been may relate back at subsequent term; 
Griffith V. Gromley, 58 S. O. 455, 36 S. E. 740, holding decree may 
l« entered retrospectiyely as of time when it should or might have 
^*^ entered if fault was due to court; Hocks v. Sprangers, 113 
WiB. 143^ S9 jjj^ ^^ 117^ holding party to litigation dies during delay 

attribxitable to court. Judgment will be rendered as of time where 
^^ Parties were alive. 

^® ^- S. 66-71, 26 L. 428, STOUT v. LYR 

^^ 1 GK, 19). Judgment without Jurisdiction void. 

-Approved in Donaldson v. Nealis, 108 Tenn. 643, 69 S. W. 733, 

'^^g publication not showing names of parties or subject-matter 

^' litigation fails to gite court Jurisdiction of person, and sale of 

^^^y thereunder is void; State v. Fredlock, 52 W. Va. 241, 43 S. E. 

^^> 94 Am. St Rep. 940, holding Jurisdiction of person enables 

^Qit to control property Involved in litigation in another Juris- 

^yh 6 (X, 20). EfTect of State Judgment on Federal Judgment 
auditor. 

Approved in Atlantic Trust Co. v. Dana, 128 Fed. 225, holding 
^liere receiver required by appointing order to defend suit to es- 
^bllsh lien loses, decree binds all parties to suit in which he was 
appointed. 

Syl. 6 (X, 20). Judgment creditor contest of foreclosure pro- 
ceedings. 

-A^Pproved in National Foundry, etc.. Works v. Oconto City, etc., 
^-» Xl3 Fed. 801, holding a general creditor cannot properly be a 
^^^^ty to foreclosure proceedings; Savings & Trust Co. v. Bear Valley 
^^^ Co., 112 Fed. 704, holding one having specific interest in por- 
"on ^f property covered by mortgage, his position enables him to 
^^^^e«t the validity and extent of superior liens. 
Syi, 8 (X, 21). Prior Judgment over same matter superior. 

^Pt^roved in London, etc.. Bank v. Horton, 126 Fed. 599, holding 
Anient foreclosing mortgage effective against subsequent pur- 

*^^^r though no lis pendens was filed required by Washington 
^^^, such statute having no application after Judgment 

^^^ tJ, s. 71-74. Not cited. 

XJ. S. 74r-79, 26 L. 430, WALL v. COUNTY OF MONROE. 

* 2 (X, 22). County warrants transferable, not negotiable. 

g^^^^Pnroved in Apache County v. Barth, 177 U. S. 546, 44 L. 881, 20 
* Ct. 721, holding county warrants inadpiissible in evidence at 



3 U, S. 80-104 Notes on U. S. Reporta. 



D law TCltliout proof ot their execution, ivhere geoDlnenefls of 
signatures thereto is put in Issue by the pleadings; Watson v. 
Huron, 07 Fed. 4Gt, holding warrants Issued by municipal office 
are In form negotiable and transferoble by delivery and authorize 
holder to maintain action In his own name; First Nat. Bank r. 
dates, 60 Kan. 507, sub nom. Vawter v. Gates, 72 Pac. 20S, holding 
munidpal warrant negotiable in form but not in fact, hence law 
mercbant will not protect purchaser thereof unless from one bavlnf 
nuthority to ielL 
103 U. B. 80-86, 26 L. 318, ALLEN v. LOUISIANA. 

Syl, 1 (X, 24). Constitutional part of statute valid. 

Approved in W. C. Peacock & Co. v. Pratt, 121 Fed. 778, hold- 
lug if the act Is unconstitutional In some respects, It does not follow 
that the whole law is thereby Invalidated; Ballentlne v. Willey, 3 
Idaho, 503, G5 Am. St. Rep. 22, 31 Pac. 996, holding an act partly 
valid and partly Invalid mutually connected and Intended as ■ 
whole wholly void. 

Syl. S (X, 25). Legislative permission for municipal aid. 

Approved In State v. Santer, 111 Iowa, 10, 82 N. W. 448, holding 
finding by board ot supervisors relative to statement of consent to 
sell Intoilcants not triable by Jury In District Court; In re Con- 
ditional Discharge of Convicts, 73 Vt 421, 51 AO. 12. holding where 
a statute enumerates the persons or things to be affected by It* 
provisions, there Is an implied exclusion of all others. 
103 V. S. 87-90. Not cited. 

103 U- B. 90-98, 26 L. 310, BOOGHBR v. NEW TORK LIFH INS. 
CO. 

Syl. 6 (X, 27). Efvldence not reviewable In Federal court. 

Approved In American Sales Book Co. v. BuUivant, 117 Fed, 260, 
holding where patent cases tfled by Circuit Court without Jury hj 
stipulation, finding upon question of fact not reviewable on appeal 
or writ of error. 
103 D. S. 99-104, 28 L. 443, NATIONAL BANK v. WHITNEY. 

Syl. 1 (X. 27), Security on contemporaneous loans good. 

Approved In Hanover Nat, Bank v. First Nat. Bank, 109 Fed. 
426, holding a contract neither illegal nor against public policy ma^ 
be enforced although it may incidentally aid one In evading or 
violating a law; Battey v. Eureka Bank, G2 Kan. 392, 63 Pac. 439. 
holding stockholder becoming liable to bank in good faith, It will 
be entitled to Hen on bis stock therein for such debts due aod un- 
paid; George v. SomervlUe, 153 Mo. 13, G4 S. W. 492, holding If a 
national bank lends money on a note secured by real estate It may 
foreclose the mortgage as a State bank might; First Nnt. Bonk at 



W 




^ Reports. 103 XT. S. 09-104 

So N. W. 545, holding stipulatioli 

:■ n>st in abeyance during pendency 

>> plea in abatement regarding prior 

..: T. Clason, 162 N. Y. 810, 56 N. B. 

•f plaintiff corporation accept pay for 

■>ii, the latter in way involved where 

tii>; dissenting opinion in Schuyler Nat. 

S. 459, majority holding Federal statute 

U taking realty as security for coincident 

■ 'irity void, but bank is answerable to govern- 

:iMsactions under prohibitory clause voidable. 

:i;rs & Trust Co. v. Bear Valley Irr. Co., 112 Fed. 

. -ration that borrows and retains money, mortgag- 

<t'curity, is estopped to deny its power to mortgage 

: r to hold security; Sanders v. Thornton, 97 Fed. 864, 

• corporation is incompetent by charter to take real 

.vfvance to it is not void, but only voidable, and the 

iuiie can object; Tidwell v. Chiricahua Cattle Co. (Aris.) 

.«■"•. holding right to enter peaceably upon unoccupied land 

:{ile to land settled upon and improved, ];)oiMeesion thereof 

J. ))t:'en continuous; Black v. Bank of Westminster, 96 Md. 

'•\ Atl. 94, holding in action by bank on note against maker, it 

ij" defense that bank has no authority to purchase the note; 

■ . ; M'iotte Electric Light Co. v. City of Wyandotte, 124 Mich. 48, 

- N. \\\ 823, holding where bank exceeds its authority in taking 

^' '-lirit.v, interested parties cannot complain so long as the State 

' "( s not; Myers v. Campbell, 64 N. J. L. 187, 44 Atl. 864, holding 

lobLs due national banks and secured by mortgage on real estate 

Are deducted from assessed value of rea/ty for purposes of taxation; 

Buffalo, etc., Ins. Co. v. Third Nat Bank of Buffalo, 162 N. Y. 169, 

173. 174. 176, 177. 178, 56 N. B. 523, 524, 525, 520. holding national 

bank has no equitable lien on stock of member indebted to it if no 

delivery of stock was made though it was understood as security; 

Ledebuhr v. Wisconsin Trust Co., 112 Wis. 663, 88 N. W. 610, hold- 

^S where corporation violates its organic act, it commits an offense 

^Salnst the sovereignty of the State, which only the State can 

PtmiBh. 

GS, 27). Miscellaneous. 

Cited In Hanover Nat. Bank v. First Nat Bank, 109 I<'ed. 426, 
bolding one receiving benefits of contract malum in se or prohibitum 
<^&Qnot successfully defend because he intended to do some unlawful 
ftct connected therewith; Merchants' Nat. Bank v. Wehrmann, 69 
Ohio St 171. 68 N. E. 1006, holding transfer by debtor to bank of 



103 U. S. 105-168 Notes on U. S. Reports 860 

nine shares In partnership to secure indebtedness made bank ownn 
in severalty, liable proportionately and not as partner. 

103 U. S. 105-117, 26 L. 322, CUCULLU v. HERMANDEZ. 
iSyl. 2 (X, 31). Original debtor relieved by substitution. 

Approved in Mulvane v. Sedgley, 63 Kan. 121, 64 Pac. 1043, hold- 
ing purchaser of mortgaged property being accepted as principal 
and surety by mortgagee, if action against purchaser becomes 
barred, action against former mortgagors likewise barred. 

103 U. S. 118-145, 26 L. 327, RAILROAD v. SCHUTTB. 

Syl. 7 (X, 33). Decision as authority. 

Approved in Union Pac. Ry. v. Mason City, etc., Ry., 128 Fed. 
236, holding Supreme Court's declaration in 163 U. S. 5G4, that 
Pacific Company must share bridge and tracks with Rock Island 
Company, controlling decision not dictum. 

103 U. S. 146-155, 26 L. 371, CHICAGO v. TILLEY. 

Syl. 1 (X, 33). One causing failure is liable. 

Approved in Sully, etc.. Burton, Liquidators v. Pratt, 106 La. 
G03, 31 So. 163, holding although builder does not use plans ordered 
and received by him, still architect is entitled to agreed price; 
Rioux V. The Ryegate Brick Co., 72 Vt 155, 47 Atl. 408, holding 
one knowing that he will have to furnish money and supplies to 
enable another to carry out the contract, an agreement to do so will 
be implied. 

103 U. S. 155-164, 26 L. 374, TILLEY v. COUNTY OF COOK. 

Syl. 1 (X, 33). Acceptance of offer makes contract 

Approved in Johnston v. Fairmont Mills, 116 Fed. 540, holding 
unless an ofTer is accepted on the terms on which it is made, it Im- 
poses no obligation. * 

Syl. 3 (X, 34). Customs and usages show intention. 

Approved in State v. Atchinson, etc., Ry., 176 Mo. 712, 75 S. W. 
780, holding in the interpretation of contracts, usages and customs 
may be useful, but they cannot create contracts. 

103 U. S. 1G4-168, 26 L. 495, CHICOT COUNTY v. LEWIS. 

SyL 1 (X, 34). Statutes are reasonably interpreted. 

Approved in Board of Comrs. v. Coler, 113 Fed. 724, holding the 
purchaser of bonds has to look no further than to ascertain if a 
power has been granted to issue the bonds; People v. Van Cleave, 
187 111. 134, 58 N. E. 425, holding the purposes of a statute is to 
produce uniformity of powers, liabilities, and duties; White v. Fer- 
guson, 29 Ind. App. 152, G4 N. E. 52, holding a person may delegate 
the performance of his personal interests, duties, rights, and obliga- 
tions to another. 



361 Notes on U. S. Reports. 103 U. S. 168-216 

103 U. S. 168-205, 26 L. 877. KILBOURN v. THOMPSON. 
SyL 1 (X, 84). Due process of law governs. 

Approved in Z&nesTille v. Zanesville Tel., etc., Co., 63 Ohio St 451, 
59 N. B. 110, holding Probate Courts in counties of State belong to 
'ts Judicial department, and have no legislative powers except as 
*Jicidents to Judicial powers; dissenting opinion in Pumell, etc., Co. 
^* Mann, 105 Ky. 117, 50 S. W. 266, majority holding test of validity 
^* statute is whether by express terms or clear implication It is f or- 
oWden by Constitution, all doubts favoring its validity. 

SyL 5 (X, 36). Government departments separate. 

-Approved in Western Union TeL Co. v. Myatt, 98 Fed. 348, 349, 

<>idlng the Jurisdiction of court of the United States cannot be 

®^led by an unconstitutional enactment of State legislature, nor 

■^ an erroneous use of terms therein; State v. Barlter, 116 Iowa, 111, 

^® ^. W. 209, holding appointment of trustees in advance of lltlga- 

T^^** to control municipal water- works is not a Judicial function; 

-"^^ re Davies, 168 N. Y. 102, 61 N. E. 121, holding each department 

^^^ government is confined to its own functions, and can neither 

^^croach upon nor be made subordinate to those of another. 

8yL 6 (X« 36). Distribution of governmental powers. 

-Approved In Pratt v. Breckinridge, 112 Ky. 12, 65 S. W. 138, 
folding unconstitutional Ky. act 1898, March 11th, providing for 
appointment of election commissioners by legislature, hence com- 
****Bslon decision in contest void. 

^03 tJ. S. 205-216, 26 L. 514, BARNEY v. LATHAM. 

Syl. 2 (X, 38). Laws are to be made effective. 

-Approved in Geer v. Mathleson Alkali Works, 190 U. S. 436, 23 
®^P- Ct. 809, 811, 47 L. 1126, holding in removal suits the case mubt 
^ <^^pable of separation into parts and controversy be between 
^^^eng of different States as plaintiff and defendant; Mexican Nat. 
^^1, etc.. Go. V. Macdonell, 105 Fed. 268, holding the expression 
^ttiier party," means the Individuals composing the party, whether 
f ^^^^tiff or defendant, and all must unite in application for removal ; 
^e St EL R. R. v. Ziegler, 99 Fed. 121, holding full hearing having 
^^ had, both parties being before court, suit should be determined 
^^^*^ merits, it being error to dismiss without prejudice; Smith v. 
39 Or. 534, 64 Pac. 813, holding in removal suit joint tort feasor 
r def^daht, citizen of another State cannot be reached after 
^^ of action becomes barred by Statute of Limitation. 

^^L 3 (X, 38). Representative must be disinterested. 

^^Pproved in Hyde v. Victoria Land Co., 125 Fed. 973, holding 

*^^^t;ton for removal stating amount of controversy to exceed 

^»^^Oo Is validv even though value is but $2,000; Harley v. Home Ins. 

^^^ X25 Fed. 793, holding controversies between a plaintiff and sev- 



103 U. 8. 217-226 Notes on D. S. Reports. 

era! aefendants being separable and different, the same may b 
removed to Federal court; WlUiard v. Spartaobarg. V. & G. R. a. Go 
124 Fed. 802. holding company of leased railroad being sued for li 
Jury to employee Inflicted by employee, the controversy Is separabi 
if It Is a corporation of another Slate: Yountsey v. SoBvaiiO, 10 
Fed. 701, holding In separable controversy, the case, or what ren 
uant may have remained In Federal court, must be remaiided t 
State court for further proceedings If one defendant and plalod 
are of same State; Jarvis v. Crozler. 98 Fed. 755, holding next frien 
of an infant is his nearest relative, but one personally lutereste 
Id suit cannot be his next frlead. 

Syt. 4 (X, 41). No absolute rule for multifariousDesa. 

Approved In WlUiams y. Crabb. 117 Fed. 203, holding It wiU t 
sufficient for Joinder if each party has au Interest In some — not ■ 
— material matters in the suit, and they are connected witb tt 
others; Demarest v. Holdeman. 157 Ind. 474, 62 N. E. 20, boldln 
difficult complications of parties and interests existmg, equity pe 
mits a Joinder of all those having a common interest Id one or moi 
branches of It; Benson v, Keller, 37 Or. 127, 60 Pac. 920. boldln 
much must be left to the discretion of the court to determli 
whether a bill Is mnltlfarloua, arising from a misjoinder of defem 
ants therein. 

Syl. 6 <X, 41). Removal depends upon pleadings. 

Approved In Lamm v. Parrot Sliver, etc., Co., Ill Fed. 243, hoi 
Ing where a suit Involves a separable controversy Federal cou 
will not remand same to State court; dissenting opinion in Seaboai 
Air Line By. v. North Carolina B. B. Co., 123 Fed. 031, majorll 
holding If real party in interest is entitled to remove to Feder 
court he may remove, hut a nominal party has no such rights. 

Distinguished in Seaboard Air Line Ry. v. North Carolina R. ] 
Co., 123 Fed. 638, holding If real party In luterest la entitled to r 
move to Federal court he may remove, but a nominal party has I 
such rights. 
103 D. S. 217-221. 26 L. 536, WILMOT v. MUDGE. 

Syl. 1 (X, 41). Refusal of confirmntlon permits appeal. 

Approved In* United States v. Hammond, 104 Fed. 863, holding I 
appeal from an order of District Court refusing confirmation i 
composition tendered by bankrupt and accepted by required uui 
ber of creditors is sllowable. 
103 U. &. 222-220, 26 L. 337, RELFB t. RUNDLB. 

Syl. 2 (X, 42). Beceiver successor to dissolved corporation. 

Approved In Great Western Mln., etc., Co. t. Harris, 128 Fa 
328, holding receiver of Insolvent corporation cannot maintain bo 
to collect money In another Jurisdiction alleged to be diverted t 
stockholders; Burget v. Bobloson, 123 Fed. 268, holding denial i 



fl 



m 



I U. S. Reports. 103 U. S, 1 



i-226 



writ of certiorari by Bnpreme Court, prfsumption of Its having 
psssed upon IsGues. and petition for rehearing not entertalnoble by 
Circuit Court of Appeal; Hllliker v. Hale, 117 Fed. 224, 225, hold- 
iBg receiver of insolvent corporation Is simply agent of appointing 
eonrt to settle tlie business, wltliout any extraterritorial powers; 
Sale V. Coffin, 114 Fed. 571, holding proceeding to enforce atatutory 
liability of stockholder, whether at law or io equity, Is based on com- 
mon law. not OD equity: Hale v. AHInKon, lOG Fed. 259, holding 
r'^celver of Insolvent corporation but creature of court appointing 
hint, and having no vested legal title, cannot sue In another Jurla- 
"iiotlon; Fish v. Smith. 73 Conn. 381. 47 Atl. 713, holding receiver 
*' aJ3 Insolvent corporation may sue a shareholder for unpaid aub- 
acTlptiona; MacMurray v. Sldwell. 155 Ind. 5G0. 5S N. E. 725, hold- 
'*•& comity reqnires that court of Insolvenfa domicile has the right 
^** <Hatrlbote assets of Insolvent corporation In anotlier State; Boot 
^- S-weeney, 12 S. Dak. GO, SO N, W. 151, holding directors of dis- 
■^^I'ved corporation, being appointed by court as truBteea, derive 
t***'W"erB from statute, not from court, and can maintain actions In 
*-*»otIier State. iSee 72 Am. St. Rep. 73, note. 

I>i8tlngulshed In Zacker v. Pldoilty T., etc., Co., 106 Fed. 699, 
■*«*l<5Jng a statutory successor to an Insolvent corporation has a 
'^"^'steij property right and can recover property In another State; a 
■■^^eiver has no such power; Chllds v. Cleaves, D5 Me. 514, 516. 50 
"^tl. 719, 720, holding comity euables a receiver appointed in one 
^■ts-te to be heard in the courts of another State relative to matters 
^*^C"talnlng to corporation, 

Sji. 3 (X, 43). Slate control of corporation. 
A.pproved la Nashua Savings Bank v. Anglo-American Co., 188 
^- B. 230, 23 Sup. Ct. 518. 47 L. 786, holding courts cannot In absence 
*>r fraud question necessity for assessment by directors of foreign 
<;oi-poratloD upon its capital stock; Hale v. Allinaon, 188 U. S. 69, 
^3 Sup. Ct Z4D, 47 L. 389, holding receiver appointed by equity 
court cannot maintain suit in equity in foreign jurisdiction to en- 
force statutory liahllltles ot stockholders of Insolvent corporation; 
Seattle Gas, etc.. Electric Co. v. Citizens' Light, etc.. Power Co., 123 
^ed. 592, holding a corporation possesses only those properties which 
the charter of Its creation confers upon It, either expressly or In- 
i^Wentally: London, Paris, etc.. Bank v. Aronstein, 117 F-al. 607, 
holdiQg British coriHiratlou transacting business In California and 
IssQlDg stocif to a citizen of same State is subject to laws of 
California: Nashua Sar. Bank v. Auglo-Ain., etc., Co.. 108 Fed. 767, 
holding where a foreign statute becomes part of a charter of a 
Corporation, a stockholder by becoming such assumes voluntarily 
tl>e obligatlona arising thereunder; Gelsen v. Loudon, etc., Mort 
Oo,, 102 Fed. 587, holding subscriber for stock of corporation is 
*>ound to take notice of authority conferred upon it by Its charter; 
^t^D T. Hosier, 102 Fed. 73, holding receiver appointed by court 




103 U. 8. 227-238 Notes on U. S. Reports. 984 

of competent Jurisdiction cannot maintain an action in anotber 
State for recovery of demand due the estate; Zacber and Others 
Y. Fidelity Trust, etc., lOU Ky. 452, 59 S. W. 496, holding creditors 
of foreign corporation not bound to take notice of laws of State 
in wblcb corporation was organized; Southwestern Tel. Go. v. 
Kansas City, etc., R. R. Co., 108 La. G96, 32 So. 960, holding a 
domestic corporation is without authority to extend operations 
beyond designated limits; State y. Continental Tobacco Co., 177 
Mo. 33, 75 S. W. 746, upholding under Mo. Sess. Acts 1897, p. 206, 
purchase for cash in good faith by manufacturing company, of 
business of another manufacturing company in same business. 

103 U. S. 227-237, 26 L. 462, BLAKE v. UNITED STATES. 

SyL 1 (X, 44). Dismissal of officers by president 

Approved in Shurtleff v. United States, 189 U. S. 315, 23 Sup. Ot 
636, 47 L. 831, holding Federal officials removed by president with- 
out notice or opportunity to defend will be presumed to have been 
made for other causes than those specified by Congress; Quacken- 
bush V. United States, 177 U. S. 25, 44 L. 656, 20 Sup. Ct 532, 
holding where president United States reappoints one under act of 
Congress requiring payment only from date of reappointment, there 
can be no substitution of related for actual date. See 94 Am. St. 
Rep. 380, note. 

Syl. 2 (X, 44). Removal Incident to appointing. 

Approved In Taylor and Marshall v. Beckham (No. 1), 178 U. 8. 
577, 44 L. 1200, 20 Sup. Ct 900, 1009, holding public offices are not 
property and salaries and emoluments therefrom are only compensa- 
tion for services actually rendered; Leadville v. Bishop, 14 Colo. App. 
521, 61 Pac. 59, holding where ordinance of city fixes no term, an 
officer may be removed at arbitrary pleasure oiF city council; Horst- 
man v. Adamson, 101 Mo. App. 125, 74 S. W. 399, holdlQg law con- 
ferring authority of appointment and silent as to to dismissal, term 
unlimited, i>ower of removal is Incident to power of appointment; 
Taylor v. Vann, 127 N. C. 249, 37 S. E. 265, holding when the 
cause of action dies pending the appeal, the court will dismiss the 
action. 

103 U. S. 238, 26 L. 392, EX PARTE BURTIS. 

Syl. 1 (X, 45). Mandamus — Inferior court's discretion. 

Approved in Robey v. Commissioners of Prince George's Co., 92 
Md. 158, 48 Atl. 49, holding writ of mandamus lies to compel in- 
ferior tribunal to act on matter within its Jurisdiction, but it cannot 
control tribunal's discretion; Roberts v. Paull, 50 W. Va. 533, 40 S. 
E. 472, holding mandamus will not lie to reverse the decision ot 
court refusing costs in a Judicial proceeding even though no writ ot 
error lies. 



Notes on U. S. Reports. 



3 U. S. 239-278 



103 n. a. 230-250, 26 L. 351, TOE BENKPACTOB. 
SyL 1 (X, 43). Relief granted by admiralty rnle. 
Approved to Oregon R. R. & N. Co, t. BiilEour. 179 U. S. 50, 45 L. 
St 21 Sup. Ct. 20. Lolding decrees of Circuit Court of Appeals from 
admiralty cases final, tliat is no appeal can tie taken. 
Syl. '£ (X, 45), Proceedings prevent execution. 
Approved In Gleaeon v, Duffy. 110 Fed. 301. holding proceeding 
to limit llsbiUty Ehould he eeaaonably instituted upon commencement 
of adversary proceedings In law court, as question of liability and 
sxteat Is determined therein. 

Syl. 3 (X, 4G). Justice obtainable from flexible admlrnlty pro- 
cee<liiigB. 

Approved In In re Old Dominion SS. Co., 115 Fed. 850, holding 
eclal flnding by Jury in State court that cargo was destroyed by 
ne^ligpnce of steamship company conclusively establlsbes dctend- 
anfa liability in Admiralty Court 

Syl. T (X. 4e). Loas unpaid precludes limiting liability. 
-Approved in The Pine Forest, 110 Fed. 1002, holding services 
^»l"iitarily rendered by owner of vessel in fault lessens his damage, 
a-id reduction no outstanding liability when limitation proceedings 
comnieiice; The S. A. M'CauUey, fifl Fed. 3M, holding owners o( 
"**lp Iq fault are precluded from instituting proceedings to limit 
^^^tilllty BO long as Jamage or loss remalBS unpaid. 

^Sl. S (X, 45). Limited liability proceedings restrains decrees. 
-*-Pproved In The Ocean Spray, 117 Fed. 972, holding judgment 
^Saingt shipowner in State court no bar to proceedings In admiralty 
to limit liability if he pay costs of plaintiff In State court. 
*^**3 U. S. 250-261. Not cited. 

■^*'3 TJ. S. 201-278, 26 L. 539, OSCANYAN v. ARMS CO. 

SyL 2 (X. 48). Verdict given upon admitted tacL 

Approved In Lyman v. Kansas City R. U., 101 Fed. 630, holding 

*t«teinenta made by counsel at the trial bind the client as effectually 

** If made In the formal plcadinga; Brady v. Yost, G Idaho, 2S0, 

^ Pac. 644, holding damages at law being Inadequate, equity will 

S^'e specific performance; Crawford v. Burke, 201 III. 503, CU N. K. 

*'3~. holding stock purchased for another without Intent to deliver 

"•^l to pay difference between market and contract value Is a 

Saiubllng contract and unenforceable; Veazey v, Allen, 173 N. Y. 372, 

*^ N. E. 107, holding contract to furnish testimony for legislative 

'"''estlgation In excnange for share of profits tberefi-om is not 

"gainst public policy; llobson v. Hamilton, 41 Or. 245, 68 Pac. 053, 

lioltiiiig a daugbter who has creditors and conveys land to her 

'""'enis, the law presumes tliey were aware of her fraudulent Intent 




103 U. 8. 278-280 Notes on U. S. Reports. 866 

Distinguished in Patting v. SiHring Valley Coal Co., 08 Fed. 812, 
holding plaintiff not appearing, and there being no reason for delay 
or indulgence, it is proper to dismiss action for want of prosecu- 
tion. 

SyL 4 (X, 40). Illegal contract proved not pleaded. 

Approved in McCrea v. Parsons, 112 Fed. 010, holding ruling 
sustaining demurrer to special plea setting up defense which is 
provable under general issue. If erroneous, is without prejudice; 
Cansler v. Penland, 125 N. C. 580, 34 S. E. 684, holding a defense 
that the contract is void as against public policy cannot be waived 
by a party thereto. 

Syl. 5 (X, 50). Contracts against public policy void. 

Approved in Cumberland Tel., etc., Co. v. Bvansville, 127 Fed. 108, 
overruling petition for rehearing of suit by transferee of quasi-public 
telephone company's franchises to enforce easement against city, 
transfer being illegal; United States v. Dietrich, 126 Fed. 678, 
holding one not " member of Congress " until accepted as member 
by that body, and violation of statute regarding *' members ** not 
subsequently applicable to i»1or offenses; Washington Irr. Co. t. 
Krutz, 110 Fed. 286, holding where two transactions are so blended 
as to become one, and one of the two is against public policy* the 
whole is void; Young v. Thomson, 14 Colo. App. 815, 50 Pac 1037, 
holding where the tendency of a contract is to promote unlawful 
acts, it is illegal and against the policy of the law; Reed v. Johnson, 
27 Wash. 55, 67 Pac. 386, holding defense of illegality need not be 
pleaded, as court will refuse to entertain action when illegality is 
made to appear; dissenting opinion in Brown v. Newell, 64 S. C. 71, 
41 S. E. 850, majority holding all contrapts and arrangements made 
for the defeat or evasion of the revenue laws of country are illegal, 
and courts will not respect them. 

Distinguished in Brown v. Newell, 64 S. C. 76, 41 S. E. 852, hold- 
ing all contracts and arrangements made for defeat or evasion of 
the revenue laws of country are Illegal, and courts will not respect 
tiiem. 

(X, 48). Miscellaneous. 

Cited in William Deerlng, etc., Co. v. Cunningham, 63 Kan. 170, 
65 Pac. 264, holding contract of lobbyist in sense of using that term 
for services as such lis against public policy and void. 

103 U. S. 278-280, 26 L. 447. BONDURANT v. WATSON. 

SyL 1 (X, 51). Federal jurisdiction independent of State court. 

Approved in De Lemos v. United States, 107 Fed. 123, holdin:? 
judgment in action at law or in a criminal case is reviewable only 
on a writ of error in Federal court; Highland Boy Gold Mln. Co. T. 
Strlckley, 110 Fed. 855, holding a decree in equity cannot be reviewed 
by a writ of error, nor can a judgment at law be challenged by 



W Notes on U. S. Reports. 103 U, S. 281-297 

u appeal; Loveless v. Ransom, 100 Fed. 392, holding writ of error 
Applicable alone to suits at law, and an appeal to decrees In equity 
^^ admiralty. 

^^ tJ. S. 281-289, 26 L. 447. BONDURANT v. WATSON. 

^^l 1 (X, 52). Diverse citizenship necessary to removaL 

-^I^proved in Zebert v. Hunt, 108 Fed. 450, holding allegation must 

*^^^ that when he was sued and when removal was sought, petl- 

tioo^r was a nonresident of State with plaintifT; Green v. Heaston, 

^®<*M 154 Ind. 130. 56 N. B. 88, holding petition aUeglng diverse 

*^8ldence" Instead of "citizenship" is insufficient for removal 

^'^ere the citizenship Is not shown by the pleadings. 

Syl. 2 (X, 52). Independent suit involving same matter removable. 

-Approved in Phelps v. Mutual, etc., Assn., 112 Fed. 466, holding 
^'***'ladlctlon of court not exhausted by rendition of Judgment, but 
^^^^^xitlniies until Judgment is satisfied, and includes all proper proc- 
^^«ee of enforcement; Ward v. Congress Const Co., 99 Fed. 608, 
lowing where third person not a party to suit is restrained from 
violating the decree, he not objecting, it is a new suit and removable 
federal court 

8yl. 3 (X, 52). Federal injunction no bar to removaL 

-A^pproved In Eureka, etc., R. R. v. California, etc., Ry., 103 Fed. 
holding statute prohibiting Federal court to stay proceedings 
Slate court does not prevent removal of cause upon usual grounds 
*-*^ongh injunction was granted. 

V. S. 289-293. Not cited. 



XT. S. 293-297, 26 L. 478, BARBOUR v. PRIEST. 

1 (X, 53). Insolvent's conveyance fraudulent 

i;)proved in In re Eggert, 102 Fed. 739, holding no reasonable 

iiands for knowing by creditor at time of accepting security that 

or is Insolvent is fact not law, hence not reviewable by Federal 

; Cox V. Wall. 99 Fed. 549, holding equity jurisdiction is not 

to fraudulent conveyances of realty in bankruptcy, but 

to fraudulent sales of personal property; Deland v. Miller, 

-* Bank, 119 Iowa, 370. 93 N. W 304, holding merely giving a 

wal chattel mortgage does not constitute a preference under 

Imnkrupt law; Boudlnot v. Haraann, 117 Iowa, 25, 90 N. W. 498, 

creditor having reasonable cause to believe debtor Insol- 

at time of conveyance, debtor's trustees may recover property; 

er V. Dunn, 68 N. H. 395, 44 Atl. 537, holding establishment of* 

^^^^onable cause for belle/ of debtor's Insolvency necessitates some 

^^wledge to induce a reasonable belief; mere suspicion Is Insuffi- 

^^xit; Slrrine v. Stover, etc., Co., 64 S. C. 459, 42 S. E. 432, holding 

^^^ptance of security from insolvent by creditor Is valid, if creditor 

^^^4 no knowledge of debtor's insolvency at the time. 



103 U. S. 298-330 Notes on U. S. Reportg. 

103 U. S. 298-300. 20 L. 5G2. THE ILLINOIS. 

Syl. 1 (X, 53). Sailboat has responsibility. 

Approved in The Europa, 116 Fed. 669, holding If steamer unable 
to avoid error of sailing vessel In changing her course, the latter 
will be held responsible for resulting collision; Jacobson y. Dalles, 
etc., Co., 114 Fed. 708, holding act of sailboat in attempting to 
cross bow of steamer was a culpable negligence, rendering it re- 
sponsible for collision. 

103 U. S. 301-304. Not cited. 

103 U. S. 304-316, 26 L. 481, MILES v. UNITED STATES. 

Syl. 2 (X, 55). Jury determines admissions made. 

Approved in United States v. Tenney, 2 Ariz. 41, 43, 132, 136, 
8 Pac. 301, 11 Pac 474, 475, holding admissions of defendant 
charged with polygamy admissible to prove polygamous marriage 
according to Arizona law, allowing common-law marriage; Barber 
V. People, 203 111. 548, 68 N. E. 94, holding in prosecution for 
bigamy woman of second ceremony competent to testify as to 
second marriage, but incompetent as to first marriage; Thomas y. 
Estate, 64 Nobr. 590, 90 N. W. 634, holding the legality of an illegal 
marriage being established, the supposed wife becomes a competent 
witness against her supposed husband. 

Syl. 3 (X, 55). Reasonable doubt is not clearly explainable. 

Approved in Territory v. Barth, 2 Ariz. 325, 15 Pac. 67Q» boldinir 
in criminal prosecution, proof to moral certainty not required; 
North Dakota v. Montgomery, 9 N. Dak. 400, 83 N. W. 875, boldinir 
in attempting to define a reasonable doubt the trial court is Justified 
in resorting to some definition thereof approved by the authorities. 

(X, 54). Miscellaneous. 

Cited in American Sales Book Go. v. Bullivant, 117 Fed. 280^ 
holding parties consenting to trial before Judge or referee, only ques- 
tion by writ of error is that of law on Judgment of facts. 

103 U. S. 316-326, 26 L. 546, LAND CO. v. SAUNDERS. 

Syl. 1 (X, 56). Monuments control courses and distances. 

Approved in Miller v. Grunsky, 141 Cal. 456, 66 Pac. 858, holding 
boundary line* of another tract of land a " monument " within 
CaL Code Civ. Proc, § 2077, providing that monuments control con* 
flicting distances in land conveyances. 

108 U. S. 327-330, 26 L. 339, WARD v. TODD. 

SyL 1 (X, 57). Jurisdiction involves complete relief. 

Approved in The Eliza Lines, 114 Fed. 315, holding no limit upon 
Federal court to consolidate different cases pending in same conrt 
and relating to same subject-matter, if Justice can better be sub- 
served; Peck V. Ayres, etc., Tie Co.. 116 Fed. 276. holding a court 



t\ari'uuL reiiiuvui uue 

I'-e some right secured 

K' V. Peoples, 131 N. C. 

::isii indictment is proper 

;<m1 because of color from 

ito Y. Darrah, 152 Mo. 535, 

•t law is not denied because 

s relative to same are treated 

H-ld, 00 S. O. 515, 39 a E. 4, 
I or sustain challenge to array 
represented on Jury is not dis- 

!< iiy equal protection. 

rirla. 188 U. S. 522, 23 Sup. Gt 404, 
• iiiash indictment will be stricken out 
: o(l to support it; Taylor and Marshall 
S. i»0, 44 L. 1209. 20 Sup. Ct. 890. 1015. 
not give Federal court Jurisdiction. l»e- 
i.'ibunuls find against claimant for office 
•intc. 03 N. J. L. 503, 80 Am. St. Rep. 072. 
<.• statute restricting class of citizens who 
• white persons is unconstitutional; Garter y. 
;. :\:m, 48 S. W. 510. holding defendant not 
ly before of challenging impaneling of grand 
iiif>iitly on ground negroes were discriminated 
. Sanger, 49 W. Va. 409, 38 S. E. 017, holding 
!lvi>st or impair rights of property yested before 

Fourteenth Amendment bears on State depart- 

....... .. m^^MM ITT TT O >I4T >I4 T 041 OA C-^ 



..■(! 



103 U. 8. 409-431 Notes on U. S. Reports. S72 

103 U. S. 40&-412. Not cited. 

103 U. S. 412-417, 26 L. 518. LINCOLN v. CAMBRIA IRON CO. 
Syl. 1 (X, 67). Verdict cures defective statement 
Approved in PatiUo v. Allen-West, etc., Co., 108 Fed. 731, hold- 
ing objection to sufficiency of complaint that may have been fatal 
on demurrer will not be sustained if made for first time in appellate 
court; Mine & Smelter Supply Co. v. Parke, etc., Co., 107 Fed. 888, 
holding when, from facts stated, the law implies a promise to pay, 
the promise the law implies from the facts stated need not be 
alleged. 

Syl. 2 (X, 67). Corporation's acts demurrable by corporation. 

Approved In Grattan Township v. Chilton, 97 Fed. 149, holding 
acts or contracts made by corporation, the existence of others pre- 
supposed in order to make same valid are presumptive proof of 
the latter. 

103 U. S. 417-422, 26 L. 401. WILSON v. GAINES. 

Syl. 1 (X, 68). Personal rights inalienable. 

Approved in Chicago Union Traction Co. v. Chicago, 199 lU. 688. 
65 N. E. 465, holding in absence of express statutory direction, im- 
munity from taxation or right to fix fares and rates does not accom- 
pany the property in its transfer to a purchaser. 

103 U. S. 423-426. Not cited. 

303 U. S. 426-431, 26 L. 578, RAILROAD CO. Y. BALDWIN. 

Syl. 1 (X, 70). Grants to State only a use. 

Approved in Werling v. IngersoU, 181 U. S. 138, 45 L. 786, 21 Sup. 
Ct 573, holding act of Congress giving certain lands for a canal, 
same to be completed within limits, confers only a use and not the 
title. 

Syl. 2 (X, 71). Right of way an absolute grant 

Approved in Northern Pacific R. R. Co. v. Townsend, 190 U. S. 
271, 23 Sup. Ct 672, 47 L. 1046, holding adverse possession of a 
right of way by a private person confers no title thereof; Southern 
Pac. Co. V. Hyatt, 132 Cal. 243, 64 Pac. 274, holding persons acquir- 
ing title to public lands subject to a right of way by a railroad takes 
the same subject to the easement; Hamilton v. Spokane, etc., R. R. 
Co., 3 Idaho, 171, 172, 28 Pac. 410, 411, holding the grant of a right 
of way is a separate and distinct matter from that of the lands to 
aid in constructing a road; Simpson v. Stoddard Co., 173 Mo. 444, 
73 S. W. 703, holding conveyance of land by county under defecttve 
proceedings, defect is cured by subsequent act passed before de- 
cision of pending case. See 92 Am. St. Rep. 845, note. 

Syl. 3 (X, 72). Prior granted use subsequently valid. 
Approved in Denver & R. G. R. R. Co. v. Wilson, 28 Colo. 10, 12, 
62 Pac. 845, holding an act in nature of general offer to the public 



•^^ Notes on U. S. Reports. 103 U. S. 431-470 

^* operative as to a particular company only when it accepts its 



,70). Miscellaneous. 

<Jited in Streeter v. Stalnalter, 61 Nebr. 207, 85 N. W. 48, holding 
S.<lence of long-continued use by the public and improvement of 
Bad tend to show establishment of same by dedication. 

U. S. 431-434. Not cited. 

U. S. 435-441, 26 L. 580, INSURANCE CO. V. BANGS. 

SyL 3 (X, 72). Service must be had upon minor. 

^Approved In Phelps v. Heaton, 79 Minn. 484, 82 N. W. 991, hold- 
guardian ad litem appointed only after service of summons 
on minor. 

Syl. 4 (X, 73). Sufficient service determined by Federal law. 

Approved in New River Mineral Co. v. Seeley, 120 Fed. 200, 
Iding where record shows substituted service was not made as 
'^escribed by statute, a recital in Judgment of " process being duly 
rented " is not conclusive. See 85 Am. St. Rep. 907, note. 

D. S. 442, 448, 26 L. 403, TERRY v. McLURE. 

^Syl. 2 (X, 73). Stockholder's liability barred In four years. 

Approved in McDonald v. Thompson, 101 Fed. 184, holding lia- 
'^^Jity of stockholder whether by express or implied contract, or 
^<y^ statute. Is barred under Nebraska statute in four years; Boyd 
^- A«:utual Fire Assn., 116 Wis. 170, 90 N. W. 1091, holding where 
^"^ Solvency occurs during defendant's insurance in mutual fire In- 
^^^^'Q.xice company, a receiver appointed by court under statute 
^^^^^ates to cancel such policy. 

^^3 XJ. S. 444-447, 26 L. 404, JONES v. WALKER. 



L 1 (X, 73). Testator's will controls chargeability of property. 

^^-X)proved in Wells-Stone, etc., Co. v. Aultman, Miller, etc., Co., 9 
• XDak. 525, 84 N. W. 378, holding creditors may reach trust prop- 
"*^^^" when trustees are entitled to be indemnified therefrom, the 
^*^^O.itor8 being substituted for trustees. See 79 Am. St Rep. 715, 



U. S. 447-460. Not cited. 

U. S. 461-470, 26 L. 409. WICKE v. OSTIIUM. 

. 3 (X, 75). Usefulness of idea is patentable. 

-^Vpproved in Milwaukee Carv. Co. v. Brunswick, etc., Co., 126 
^^^. 188, holding carving machines, one operating vertically and 



«r horizontally, neither infringe the other patent; Stephenson 
^- -Allison, 123 Ala. 449, 26 So. 293. holding churn embracing a new 
^^"v-ice or element of a new combination of known devices produc 
^^<K new and useful results is patentable. 



103 U. S. 471-194 Notes on U. S. Reports. 374 

103 U. S. 471-479, 26 L. 814, BDWARDS v. UNITED STATES. 

Syl. 2 (X, 76). Resignation of officer valid from acceptance. 

Approved in United States v. Dietrich, 126 Fed. 681, holding com- 
pleted act not an offense at time of commission cannot become such 
subsequently, and elected officer is de facto until he accepts; John- 
son V. Griswold, 177 Mass. 36, 58 N. B. 157, holding statute of a 
county not requiring written resignation of officer, such resignation 
may be shown by parol evidence; Fryer v. Norton, 67 N. J. L. 539, 
52 Atl. 476, holding resignation of councilman being laid before 
mayor and council, and acceptance refused, the incumbent remains 
in office; Keen t. Featherston, 29 Tex. Civ. 565, 69 8. W. 984, hold- 
ing the contract for public service imposes a mutual obligation 
upon the officer and the public, which cannot be arbitrarily dis- 
pensed with by either party; Hebb v. County Ct of Tucker County, 
49 W. Va. 742, 37 S. E. 682, holding every official must discharge 
his duties while he remains in office, and he cannot lay down these 
duties until those in authority are satisfied. 

103 U. S. 480-185, 26 L. 521, THOMPSON T. UNITED STATED 

Syl. 1 (X, 77). Resignation valid from appointment of successor. 

Approved in Keen v. Featherston, 29 Tex. Civ. 565, 69 S. W. 984, 
holding an officer whose resignation has been accepted, but whose 
successor has not been appointed, is still such officer. 

Syl. 5 (X, 77). Mandamus of predecessor binds new incumbent. 

Approved in Murphy v. Utter, 186 U. S. 102, 103, 46 L. 1076, 1076, 
22 Sup. Ct 779, holding the proceedings may be commenced with 
one set of officers, and terminate with another, the latter bemg 
bound by the Judgment; Hiclcs v. Cleveland, 106 Fed. 466, holding 
mandamus of officers charged with levying and collecting taxes to 
pay Judgment against municipality binds them and their successors; 
In re Counties v. County of Alturas, 4 Idaho, 155, 95 Am. St. Bep. 
58, 37 Pac. 351, holding where the duty is continuous, the cause of 
action does not abate by any set of officers going out of office; 
Hebb V. County Ct. of Tucker County, 49 W. Va. 734, 742, 87 S. SL 
679, 682, holding expiration of office malses no difference, mandamus 
binds successors of municipal or other corporation, or legal board 
having continuous existence. 

103 U. S. 485-494, 26 L. 354, KERN v. HUIDEKOPER. 

Syl. 1 (X, 78). Removal — Jurisdiction attaches on filing tran- 
script. 

Approved in North American Transportation, etc., Co. v. Howells, 
121 Fed. 698, holding in removal suits Federal court cannot grant 
commission to talse deposition without a legal basis being shown 
therefor; Loop v. Winters' Estate, 115 Fed. 365, holding State court 
need not order cause removed, nor need plaintiff have notice of 



Motes on U. S. Reports. 



S D. S. 494-^08 



remoTBl to give Federal court Jurisdiction; Aslie t. Union, etc., Ins. 
Co., 115 Fed. 235, holding the flllng of petition for removal with 
sufficient bond removes the cause from State court, and no notice 
of removal need be given plaintiff; Home Ins. Co. v. Virginia-Car- 
olina, etc.. Co., 109 Fed. tiSSi, holding removed eases are wholly 
TTitliln the Jurisdiction of the Federal court, and the State court 
tiaa lost Jurisdiction of them; Klrby v. Chicago, etc.. R. It. Co.. 100 
Ked. 5o3, holding appearance In State court after petition for ro' 
tnoTal is denied la no waiver of rights to try case In Federal court; 
Swift V. Hoblawetz. 10 lian. App. 53. 61 Pac. STO. holding dismissal 
of removed suit by Federal court otherwise than upon merit does 
not bar action upon same cause in State court; Kruegcr v. Chicago, 
etc., Ry. Co.. 84 Mo. App, 3tl3, holding In removal suit Federal court 
has exclusive jurisdiction of case, but not of subject-matter of con- 
troversy, which may be presented In subsequent case; Hooper T. 
Atlanta, K.. etc.. Ry. Co., 106 Tenn. 34, 35. 36, 00 3. W. 000. holding 
<]IsiDlgsaI of removed cases from Federal court without determina- 
tion of merit gives State court original Jurisdiction of such causes 
<*r action; dissenting opinion In Mclver v. Florida Cent. R. R. Co., 
HO Ga. 232, 38 S. E. 779, majority holding plaintiff nonsuited or 
Kutt voluntarily dismissed In Federal court may bring another suit 
on same cause of action lu State court within Statute of Limlta- 

lilstitigulshed In Melver v. Florida Cent. R. R. Co.. 110 Ga. 227, 
3^ S, E. 777, holding plplntiff nonsuited or suit voluntarily dismissed 
In Federal court may bring another suit on same cause of action in 
BtQte conrt within Statute of Limitations: dissenting opinion in 
C«iTert T, Railway Co., 61 S. C. 147. 41 S. E. 965. majority holding 
f*IIroad company Incorporated under laws of another State la a 
"'^HreBldent for the purpose of removal of causes to Federal court 

SyL S (X. 79). Right of removal unquestionable. 

-Approved In Gassman v. Jarvls. 100 Fed. 147. holding dismissal 
'^^ t^moved suit without determination of merits is no bar to a new 
■^'t Involving same cause In the State court, 

SyL 4 (X. 79). After removal State JurlsdlcUon void, 

■Approved in Hickman v. Missouri, etc., Ry., 97 Fed. 120, holding 
^'ter removal of cause to Federal court, prosecution to final bearing 
^* State court docs not reinvest State court with Jurisdiction; Texas, 
**c-. Ry. Co. v. Davis. 93 Tes. 388, 55 S. W. 563, holding Jurisdiction 
**' P'ederal court is not invalidated by remanding case even though 
^** State court proceeds with the case to Judgment. 
*^*^ V. B. 494-^98. 26 L. 497. DIETZSCH v. HUIDEKOPER. 

SyL 1 (X. 80). Removal — Judgment In Federal court supreme. 

Approved In Massie v. Buck, 128 Fed. 31. holding under Rev. 

^t«t., I 720. Federal court having Jurisdiction of suit to set asld« 




103 U. S. 494-408 Notes ou U. «. Iteports. 876 

sheriff's deed may restraiu defendant from disposing of land; Stew- 
art V. Wisconsin Cent. Ry. Co., 117 Fed. 783, liolding Federal eonrt 
not prevented from enforcing its own Judgments by the statute 
which forbids it to grant writ of injunction to stay proceedings in 
State court; Evans v. Gorman, 115 Fed. 401, holding court which 
first acquires Jurisdiction of controversy or of the res should be 
permitted to retain it until the controversy is decided, and the 
res discharged from its control; In re Gutman, 114 Fed. 1011, hold- 
ing third party having no legal rights to establish in State court, 
the equitable powers of Federal court should be exercised to pre- 
vent injustice; Reineclse Coal M. Co. v. Wood, 112 Fed. 477, holding 
interlocutory State order refusing preliminary injunction in joint 
suit by several corporations no bar to Federal suit by successor to 
one of them which was not party to former suit; Phelps v. Mutual, 
etc., Assn., 112 Fed. 465, holding Jurisdiction of Federal court once 
acquired continues until Judgment is satisfied, and includes i>ower 
to talse all proper proceedings for its enforcement; Riverdale Cotton 
Mills V. Alabama, etc., Mfg. Co., Ill Fed. 432, holding appeal pend- 
ing does not prevent Federal court, in proper action, from taking 
such action as will preserve rights of parties until determination of 
appeal; Coker v. Monaghan Mills, 110 Fed. 806, holding State court 
has right to decide whether petition for removal sets forth sufficient 
reasons therefor; State Trust Co. v. Kansas City, etc.. By. Co., 110 
Fed. 13, holding due administration of Justice in Federal court re- 
quires that they have full power to issue all process necessary for 
exercise of their Jurisdiction; Starr v. Chicago, etc., Ry. Co., 110 Fed. 
7, holding when Federal court has acquired priority of Jurisdiction It 
is its duty to protect such Jurisdiction by injunction if necessary; 
Mercantile Trust, etc., Co. v. Roanoke, etc., Ry., 109 Fed. 6, holding 
where the injunctive process of a Federal court is invoked to en- 
force its own Judgment or protect its own Jurisdiction, section 720, 
Rev. Stat., has no application; Oliver v. Parlin, etc., Co., 105- Fed. 
275, holding possession of res vests the court. Federal or State, 
which has first acquired Jurisdiction with power to hear and de- 
termine all controversies relating thereto; In re Russell, 101 Fed* 
251, holding prohibition in Revised Statutes against enjoining 6tate 
court has no application in bankruptcy proceedings when law au- 
thorizes injunction; James v. Central Trust Co., 98 Fed. 493, holding 
Federal court not prevented by statute from granting injunction 
against proceeding in State court where necessary to render its own 
decree effective; Pennsylvania Co. v. Leeman, 160 Ind. 18, 66 N. B. 
49, holding removal petition made after amended complaint was 
filed after answer, original complaint not being in the record, 
differences in complaint will not Justify removal. 

Distinguished in Alabama, etc., Mfg. Co. v. Riverdale Cotton 
Mills, 127 Fed. 505, holding bill by purchaser at foreclosure sale 
against corporation of Georgia and Alabama, to prevent corpora- 



S77 



Notes on U. S. Reports. 103 U, S. 40S-J41! 



Uoa from suing In Alabama, not within Georgia Federal jurladictlou; 
AuJtDiaD, etc., Co. T. Brumfleld. 102 Fed. 11. holding Federal court 
1X11361 first bare Jurisdiction before enjoining State court In the pro- 
jection of res, 

103 n. S. 4B8-5I5, 26 L. 493, COUNTY OP MORGAN v. ALLEN. 

.^yl. 1 (X. 81). Capital stock trust fund for creditors. 

-Approved In Colorado Fuel, etc. v. Sedalia, etc., Co.. 13 Colo. App. 

-A 7^, 58 Pac. 224. holding the stocks of corporations, and particularly 

-■ixs^ald subscripUons, are a trust fund aub modo for the benellt of 

^r^xierai creditors; City Item, etc.. Printing Co. v. Plicenlx Furniture, 

^rtz*^. Co.. 108 La. 206. 32 So. 472, holding unpnld subscriptions are 

«■. ^sels of the estate, and the receiver should proceed to collect same 

^«:>x- creditors' benefit; Standard Cotton, etc., Oo. v. Excelsior Refining 

CIS**-. iOS La. 79, 32 8o. 223, holding stockholder, as director, who 

^».«S"vances money In good faitb to tide over dlfflciiltlea of the cor- 

I»-«:>Tatlon has the rank and standing of an ordinary creditor; Core v. 

r-a^iv York Petroleum Co., 52 W. Va. 2S4, 43 S. E. 131, holding courts 

-^^tll not asEume to make a contract for the parties which they did 

Ka<3t cboose to make for themselves. 

^03 U. S. 516-518. 26 L. B23, WATER- WORKS v. BARRETT. 
Sj-l. 1 (X. 83). Receiver appointed by consent not error. 
Approved in Helnze v. Butte, etc., MIn. Co., 128 Fed. 10, holding 
■resides appellant moving to vacate the receivership an application 
^tiold have been maiie to lower court to direct receiver to cease his 
'^ilQlng operations. 
^03 tj. 8. Gl&^23. Not cited. 

^03 u. 8. 523-540. 26 L 340. TIPTON t. LOCOMOTIVE WOBKS. 
^S'L 1 {X, 84). Public benefits must apply generally. 

i^pproved In Tecuraseh Mills v. L., etc., N. R. R. Co., 108 Ky. 577. 
S. W. 10, holding statute of Kentucky prohibiting common carrier 
"^^■Osai contracting for relief from liability from loss by fire la not 
'^^^^ratlve In another State. 
*-^^*a u, s. 540-544. Not cited. 
■■■**a U. S. 544-649, 26 L. 43fJ. INSURANCE CO. v. NELSON. 

^yt. 1 (X. 8S). Instruments Impeached by convincing evidence. 

-Approved In Chicago, etc., Ry. v. Wilcox, 116 Fed. 014, holding 

^^**itten agreement of settlement and release not rescinded for fraud 

***" mistake, unless evidence of fraud or mistake fs clear, nnequlv- 

'^^ial, and convincing: Thallmann v. Thomas, 111 Fed. 282, holding 

l*^tenta, contracts, and conveyances cannot be set aside or be modi- 

^^^ for mistakes except on evidence that convinces beyond a reason- 

^t»le doubt; American Bell Tel. Co. r. National Tel,, etc., Co., 109 

^ed. 1010, holding a Judgment of the court, a deliberate deed, or 



s-r 



103 U. S. 550-674 Notes on U. S. Reports. 878 

writing are of too much solemnity to be brushed away by loose 
and inconclnsive evidence; Webb t. Hammond, 31 Ind. App. G21, 
68 N. R 919, holding Judgment affirming contract cannot be had, tbe 
instrument to be reformed never having been before either of the 
courts nor other evidence of contents; Goulet v. DubreulUe, 84 Iflnn. 
75, 86 N. W. 780, holding clear and convincing testimony is required 
to oppose and overcome the statutory authentication by which the 
proof of deeds is established; Searles t. Churchill, 69 N. H. 531, 43 
Atl. 185, holding a writing will be held to express correctly the 
intention of the parties unless evidence to aver this presumption Is 
convincing beyond reasonable doubt; Western Loan, etc., Co. T. 
Warsinan, 32 Wash. 648, 73 Pac. 704, holding In absence of fraud, 
security of land titles requires that certificate of acknowledflrment 
shall be unimpeachable without the clearest and most conTindng' 
evidence to contrary. 

103 U. S. 550-553. Not cited. 

103 U. S. 554-^58, 26 L. 486, SUPBBVISORS v. KBNNICX>TT. 

Syl. 2 (X, 86). Judgment on agreed statement — Special verdict 

Approved in Wilson v. Merchants' Loan & T. Co., 183 U. S. 127, 
46 L. 116, 22 Sup. Gt 58, holdhig an agreed statement of facts sub- 
mitted to trial court and a Judgment thereon, such statement is an 
equivalent of special finding of facts; Powers v. United States, 119 
Fed. 566, holding when finding is special the facts found should be 
sufficient to support the Judgment, that is, the essential facts, not 
the probative; Mutual Life Ins. Ck). v. Kelly, 114 Fed. 271, holding 
submission of facts agreed upon In writing Is equivalent of a special 
verdict presenting questions of law alone to review of court; WU* 
son V. Merchants' L. & T. Co., 98 Fed. 691, holding agreed state- 
ment of facts, Judgment being rendered thereon, treated on appeal 
equivalent to special finding of ultimate facts. 

Syl. 3 (X, 86). Sureties on supersedeas held for damage. 

Approved in Adone v. Wettermark, 28 Tex. Oiv. 598, 68 8. W. 
555, holding where legislature intends the giving of a supersedeas 
appeal bond, it is to be construed as furnishing indemnity and not 
as providing for a penalty. 

103 U. S. 559-562, 26 L. 505, COUNTY OF OUACHITA T. WOIi- 
COTT. 
•Syl. 1 (X, 87). County warrants are not negotiable. 

Approved In Watson v. Huron, 97 Fed. 451, holding warrants 
issued by city are a valid claim In hand of bona fide holder, but are 
not negotiable instruments under the law merchant 

103 U. 6. 562-574, 26 L. 411, HARTBR v. KERNOCHAN. 
Syl. 2 (X, 87). Court m'ay rearrange parties to suit 
Approved In Seaboard Air Line Ry. v. North Carolina R. R Oow 

L23 Fed. 630, holding If real party in interest is entitled to remoT« 



879 Notes on U. S. Reports. 103 U. S. 575-631 



Feaeral court he may remove, but nominal party has no such 
right; Joseph Day Dry Goods Go. v. Hecht, 120 Fed. 765, holding 
looking only at real facts of case and rearranging parties, It neccs- 
sajry, court can then determine its Jurisdiction; Reese v. Zinn, 103 
F*e& 97, holding formal parties can be omitted or transposed in the 
pleadings or Joined plaintiffs and defendants, without ousting Juris- 
diction of court; Kimball v. Gedar Rapids, 99 Fed. 132, holding 
coTirt may determine its Jurisdictional right by arranging parties 
pl&Izitiff and defendant in accordance to their actual interests in 
ral>Ject-matter of the suit 6ee 89 Am. St Rep. 682, note. 

lOe X7. S. 575-^1. Not cited. 

108 X7. S. 691-596, 26 L. 583, ADAM T. NORRIS. 

Syl. 4 (X, 90). Final hearing precludes objections on pleadings. 

iLpproyed in Patillo t. Allen- West etc., Go., 108 Fed. 731, hold- 
tiiS objection to sufficiency of complaint which might have been 
fatal on demurrer not sustainable if made for first time in appellate 



103 XJ. 8. 695, 696. Not cited. 

lOS X7. 8. 597, 696» 26 L. 525, SWAN T. ARTHUR. 

8yL 1 (X, 91). Tariff acts construed in commercial terms. 
A^pproved in Wieland t. GoUector, etc.. Go., 104 Fed. 543, holding 
c^i^ssUicatlon of goods conforms to commercial sense, and is not 
^^<^sed upon the material of which they are made. 

^08 TJ. 8. 599-^06, 26 L. 550, KENNEDY v. INDIANAPOLIS. 

^L 1 (X, 91). Title passes upon giving compensation. 

^I^royed in dissenting opinion in Salt lAke Gity, etc.. Go. ▼. 
^^ Lake Gity, 24 Utah, S02, 67 Pac. 795, majority holding prop- 
^^* although entered upon pending an appeal, is not taken until 
^''^P^sation is ascertained in some legal mode, and being paid, 
^^® Passes from owner. 

distinguished in Salt Lake Gity, etc.. Go. v. Salt Lake Gity, 24 
^^, 297, 67 Pac. 793, holding property, although entered upon 
P^AdiQg mi appeal, is not taken until the compensation is ascer- 
^ed In some legal mode, and being paid, title passes from owner. 

^^ tr. 8. 606-613. Not cited. 

^^ ^. 8. 613-637, 26 L. 585, HOYT T. SPRAGUB. 
®^L 1 (X, 93). Partner's death gives interested party lien. 

^Pproved in Johnson v. Marx Levy, etc., Bro., 109 La. 1044, 34 
• ^2, holding whatever a party should know and has opportunity 
l^no^lng, he is presumed, as to innocent third persons, to have 

''^^^^O; Qulmby t. Uhl, 130 Mich. 212, 80 N. W. 728, holding one 



103 U. S. 637-065 Notes on U. S. ReporU. 380 

cannot enjoy his share of profits of a business during prosperity 
and cast upon another the losses incurred in times of depression. 

SyL 4 (X, 94). Guardian not recognized in another States 

See 89 Am. St. Rep. 271, 274, note. 

Syl. 5 (X, 94). Guardian appointed where property is located. 

Approved in Mexican Gent. R. R. Go. t. Eckman, 187 U. S. 433, 
23 Sup. Gt 213, 47 L. 247, holding representatives may stand 
upon their own citizenship in Federal courts irrespeictively of the 
citizenship of the persons whom they represent; Glarke ▼. Glarke, 
178 U. S. 193, 44 L. 1032, 20 Sup. Gt 876, holding courts of State 
where real estate is situated have the exclusive right to appoint 
guardian of nonresident minor. 

SyL 13 (X, 95). Guardian may have a referee's assistance. 

Approved in New York Security, etc.. Go. v. Louisville, etc, R. B., 
97 Fed. 233, holding if lapse of time raise presumption of laches, the 
party must state in bill specifically the impediments preventing 
earlier prosecution, else equity can give no relief. 

103 U. S. 637-651. Not cited. 

103 U. S. 651-659, 26 L. 509, WARDBLL v. RAILROAD CO. 

Syl. 1 (X, 96). Directors cannot serve themselves and corporation. 

• Approved in Kroegher v. Galivada Colonization Go., 119 Fed. 646, 
holding same person cannot act for himself and at the same time 
with respect to same matter as the agent of another; Stone y. 
Bevans, 88 Minn. 129, 92 N. W. 520, holding member of common 
council of a village cannot lawfully enter into contract with the 
municipality for his own benefit; Kelsey v. New England St. Ry. 
Co., 62 N. J. Eq. 745, 48 Atl. 1002, holding contract not enforceable 
against corporation when the party dealing with the directors has 
given any of them secret interest therein; Wallace v. Oceanic 
Packing Co., 25 Wash. 149, 64 Pac. 940, holding agent cannot 
place himself in a situation in which he may be tempted by his 
own interest to disregard that of his principal. 

103 U. S. 660-665, 26 L. 512, PECK v. COLLINS. 

Syl. 1 (X, 98). Surrender of patent extinguishes it. 

Applied in Franklin v. Illinois Moulding Co., 128 Fed. 48, hold- 
ing patentee in infringement suit cannot claim rights under sur- 
rendered patent and first reissue, surrendered to obtain second 
reissue. 

Syl. 2 (X, 98). New patent takes precedence over oldw 

Approved in Ingersoll v. Holt, 104 Fed. 684, holding Federal 
court has original Jurisdiction in suit to obtain reissue of patent 
refused, and all competent evidence being relative, bill must dis- 
close facts fully. 



^ Notes on U. S. Reports. 103 U. S. 66G-e9T 

^03> XJ. a we, 667. Not cited. 

^^^ XT, S. 66&-673, 26 L. 417, NATIONAL BANK v. CITY BANK. 
^yl. 3 (X, 99). Bank must make collections. 
S^^o 77 Am. St Rep. 627, notel 

103 XJ. a 673-677. Not cited. 

103 XT. S. 677-679. 26 L. 454, ARTHtJR v. JACOBY. 

Syl. 1 (X, 100). Hand-painted porcelain regarded as "painting." 

-Approved in Amerman v. United States, 124 Fed. 299, holding 
D^'i-'^^rials may be of insignificant worth, but if article is of great 
▼&lu^ because of skill of artist, said article is dutiable under 
•• ]P3XQtings in oil," etc. 

103 XJ. S. 679-682. Not cited. 

1^>3 XJ. & 683-697, 26 L. 526. WALNUT ▼. WADB. 

Syl. 8 (X, 101). •• Inhabitants " mean voters. 

-^I>proved in Wilson v. Lawrence^ 70 Ark. 548, 69 S. W. 672, 
l^ol^Jjig a person having a fixed place of abode within a district 
^^^ «. definite time only is not an inhabitant; Brown .v. Rushing, 
'^^ -Ajk. 121, 66 S. W. 446, holding the word "Inhabitant" has 
meanings, hence its construction has generally been gov- 
by the connection In which it has been used. 

10 (X. 102). Bona fide holder of bonds secure. 

-Approved in Beatrice v. Edminson, 117 Fed. 434, holding re- 
^^^^ In bonds that they were Issued, by authority of a majority vote, 
■^Heves innocent purchasers from all inquiry, notice, and knowl- 
®^^e; Clapp v. Otoe Co., 104 Fed. 485, holding bonds Issued by 
^^^J^^ of county commissioners of county upon favorable vote of 

^ electors of precinct are bonds of county whose board Issues 
~**^xxi ; Board of Commissioners v. Heed, 101 Fed. 7C9, holding county 
^^^Xng bonds payable in thirty years, without condition attached 
^* Recalling in ten years, as voted upon, estops county claiming 



are void. 

^^1. 11 (X, 102). Presentation of bonds unnecessary before action. 

-Approved in Hughes Co. v. Livingston, 104 Fed. 321, holding 
^^^i^e it is useless to present bonds at particular place, there 
^^^^^ nothing to pay, presentation need not be made before be- 
^^^^ilng action; Abraham v. New Orleans Brew. Assn., 110 La. 
^^^ 35 So. 270, holding interest coupons requiring presentation 
^^^ Interest from maturity without presentation when it does 
^^"t cippear atfirmatlvely that corporation would have paid, if pre- 



nyl. 13 (X. 102). Detached interest coupons are negotiable. 

-^ reproved in Board of Comrs. v. Geer, 108 Fed. 482, holding in 
t coupons from municipal bonds are In effect promissory 



3& Notes on U. S. Reports. 103 U. & 721-744 

irliere sobstantlal rights will not be impaired a State may change 

tbe form of, or modify, the remedy; Oshlsosh Water- Works Ck>. v. 

City of Oshkosh, 109 Wis. 218, 85 N. W. 380, holding amendment 

to dty charter, requiring bonds for costs in suits against city, 

was not Inyalid as impairing contracts prior to amendment. 

103 XT. 8. 721-731. Not cited. 

103 XT. S. 732-735, 26 L. 409, NATIONAL BANK T. KIMBALL. 

Syl. 2 (X, 107). Assessments must not be discriminating. 

^A^pfproved In People's Nat. Bank v. Marye, 191 U. S. 284, holding 
equity will not restrain collection of entire tax on ground that a 
pi'<H>er reduction was not made in an excess assessment of stock- 
holders; French r. Barber Asphalt Paving Co., 181 U. S. 337, 45 L. 
8^7, 21 Sup. Ct 629, holding entire cost of paving a street may be 
Apportioned according to the frontage without preliminary hearing 
*• to benefits; Whitehead t. Farmers' Loan, etc., Co., 98 Fed. 12, 
bol^Qg real property sold by county for delinquent taxes and In 
P^^^fleaalon of receiver affords no ground for enjoining issuance of 
deed to purchaser; State v. Western Union Tel. Co., 165 Mo. 515, 
51 B, 66 8. W. 777, holding the law contemplates that for purposes 
^ texatlon property shall be assessed at its true value in money. 

^^ U. S. 736, 737. 26 L. 456, HUMPHREY v. BAKER. 

^yl. 1 (X, 106). An appeal may be prevented. 

-Approved in White v. Bruce, 109 Fed. 363, 364, holding power to 
•^^^'^ writ of error or an appeal in proper case implies power to 
^^^Use such applications in some cases. 

^^ tJ, S. 738. 739. Not cited. 

^*^ tJ. S. 73^744. 26 L. 456, GRINNBLL v. RAILROAD CO. 
^^L 1 (X. 109). Selecting definite railroad route title vests. 

-Approved in Oregon, etc., R. R. v. United States, 189 U. S. 113, 

^ Bnp. Ct. 619, 47 L. 731, holding unless otherwise expressly de- 

^^''©d by Congress right of railroad to specific lands within indem- 

'^^ limits does not attach until there Is a selection made; Southern 

^*^ a. R. Co. V. Bell, 183 U. S. 680, 46 L. 386, 22 Sup. Ct 234, 

"^Ming title to •• grant lands " to a railroad passes only after rall- 

"^d has definitely selected the route; Hewitt v. Schultz, ISO U. S. 

^1. 162, 45 L. 470, 21 Sup. Ot 314, holding until valid selection by 

^^ S^antee Is made from the lands within indemnity limits, they are 

^*J^^ii to disposition by United States as public lands; United States 

^- Oregon, etc., R. R. Co., 176 U. S. 42, 44 L. 3G4, 20 Sup. Ct. 205, 

nolding filing of map of general route of railroad prior to filing 

^'^P of d